101 Ga. 544 | Ga. | 1897
Drought was accused in the city court of Atlanta of the offense of being a common cheat and swindler. The accusation alleged, in substance, that he had cheated and defrauded Eady & Mayfield of eight hundred dollars and of stock of the Oakview Cemetery Company of the par value of $40,000 but of the real value of $1,600; that he did this by making certain false representations, the material part of which consisted in exchanging with them, for the eight hundred dollars and the cemetery stock above mentioned, four receiver’s certificates of the face value of five hundred dollars each, with accrued interest, and in representing to them, at the time of the exchange, that the certificates were good and were worth the principal and accrued interest expressed on their
The evidence shows, that at the time Drought made these representations, the road was in the hands of a receiver; that the court had issued an order allowing the receiver’s certificates to be issued; that Drought furnished the prosecutors with “papers showing the certificates to be good”; that the court, by the decree authorizing the issue of the certificates, made them a first lien upon the road after the expenses of administration had been paid, and if the road should not bring enough at the sale to pay the expenses and the certificates, then the latter were to become a first lien upon the road in the hands of the purchaser thereof. The evidence further shows, that at the time the representations were made the court had issued an order for the sale of the road, and that the upset price of the same was made $75,000. After the representations were made, it appears that the road was exposed to sale and failed to bring the upset price. Another order for the sale was then issued, in which the upset price was placed at $40,000. Again the road was exposed to sale, and again there were no bidders. The judge issued another order authorizing the sale, without fixing an upset price, and the road was sold under this order for $25,000. This amount was not sufficient to pay off the expenses of administration and the certificates, and was applied to the settlement of the former. Thus it appears from the evidence that all the material representations made by Drought were absolutely true, to wit: that the re-<
The real question in the case, however, is whether the certificates were a good and valid lien upon the road. We think, from the record before us, that they were and still are valid and binding upon the road, for the decree authorizing their issue expressly declares, in substance, that if the road does not bring enough at the sale to pay both the expenses and the certificates, the latter shall still be a first lien on the road in the hands of the purchaser. If any other order or decree was
In our opinion, the State failed utterly to make out the material allegations in the accusation. The prosecution seems to us to have been instituted more for the collection of a debt than to enforce the criminal law. This court is now, and has always been, in favor of the strictest enforcement of the criminal laws of the State, but it is now, and has always been, opposed to any use of criminal process for the collection of debts. If courts were allowed to equalize errors, or to set off one questionable trade against another, this in our opinion would be a proper case to do so. Even if all the charges of the prosecutors are true, the evidence in the record shows that Drought got no advantage of them. He gave them $2,400 worth of certificates which are a first lien upon a railroad, and took from them in exchange $800 in cash and $40,000 in stock of a cemetery company which at that time had not been organized, the stock representing a small tract of land in which the promoters had put in cash only $700, and on which they had issued stock to the amount of $200,000. $20,000 of this stock was shortly thereafter pledged to secure a loan of thirty-five dollars. Altogether, the scheme of this cemetery company, as shown by this record, seems equal to any conceived by Mulberry Sellers.
Judgment reversed.