15 Ga. App. 478 | Ga. Ct. App. | 1914
I. Foss, a merchant, was convicted of an attempt to defraud one Gustave Anderson, -a member of the crew of a British ship in the harbor of Savannah. Anderson had been fined $10 by the recorder in the police court of Savannah, and Foss had, through an attorney, obtained Anderson’s release from jail without the payment of the $10 fine, or any part thereof, except $1, which Foss paid for a certified copy of the charges against Anderson. After Anderson was released from the jail, Foss, according to the State’s evidence, told Anderson that he (Foss) had paid the $10 fine out of his own pocket, and presented a bill to Anderson for $15 “for clothing,” stating to Anderson that the fine which he had paid was included in the bill; whereupon Anderson approved the bill. Several days afterward Foss presented this bill for $15 to F. A. Smith, the captain of the ship, for payment, and stated to Anderson, in the presence and hearing of Smith, that the fine which he had paid for Anderson was included in this bill. Whereupon, in the presence of Foss and Smith, Anderson “0. K.’d” the bill. The undisputed evidence further showed that no fine had been paid by Foss, and that Anderson had been released without the payment of any fine, and that if Captain Smith had paid this bill he would have taken the amount out of Anderson’s wages. Foss introduced evidence to show that before getting Anderson out of jail, he, Foss, had told Anderson that it would be necessary to
1. • The first and strongest contention of plaintiff in error in this case is that the verdict is contrary to law, for the reason that the accusation charges that the plaintiff in error, “by the use of deceitful means and artful practices, did cheat and defraud Gustave Anderson out of the sum of $12.35 in money, of the value of $12.35, to wit, by falsely and fraudulently to F. A. Smith that he had paid for the account and on behalf of one Gustave Anderson the sum of $10, and in monejq to the authorities of the police court of the city of Savannah, to secure the release from custody of said Gustave Anderson, he, the said Gustave Anderson, having been fined said sum of $10 in the police court of the city of Savannah, and that he the said Foss desired the said money to reimburse himself; said Gustave Anderson being a steward on board the steamship ‘Foxton Hall,’ and said F. A. Smith being captain thereof, and any amount of money paid by said captain in response to said demand was taken by said captain from any wages then due, or to become due, to said Gustave Anderson, contrary to the laws,” etc. Counsel contends that this accusation is fatally defective in substance, because it fails to allege the making of a false and fraudulent representation, there being an omission to state that any representation was made. So far as appears this question was not raised in the court below. Even a casual reading of the accusation is sufficient to show that the word “representing” was inadvertently omitted. We are” inclined to hold that this was a defect in form only, which should have been objected to by demurrer before the trial. But whether it is a defect in form or in substance, it affords no ground for a new trial. White v. State, 93 Ga. 47 (19 S. E. 49); Boswell v.
2. While the offense of cheating and swindling is not complete unless the representations are both deceiving and injurious, it is not necessary that the defendant himself be benefited by his fraud. 19 Cyc. 409. If Eoss, by false representations, defrauded Anderson out of this $10, and then for any reason chose to give this money to a third person, the offense was complete. The evidence is that Eoss gave $10 to his attorney, although he had beforehand made no contract with the attorney for any fee, but, the day after Anderson’s release from jail, Eoss walked into the attorney’s office and handed him $10, telling him it was a fee for getting Anderson out of jail. The evidence is that this attorney had been the regular counsel for Eoss for ten or fifteen years, and it is possible that Eoss wished to ingratiate himself into the favor of his counsel by making him a present of this $10. But the law is clear that when one defrauds another out of money, or any other article of value, he can not escape the consequences of his act by giving the money or other article to some third party and then claiming that he was not benefited by the fraud, and, therefore, should not be convicted.
3. In a case of cheating and swindling, where the charge of the court upon the subject of “attempts” is correct and sufficiently full, if any more explicit charge is desired on the doctrine of locus pcenitentise, or mere preparatory acts, a request therefor should be submitted in writing, and, in the absence of such a request, the failure of the judge to so charge is not error.
4. The proof shows that the fraudulent representations were made directly to Anderson, but in Captain Smith’s presence and hearing, and that they were made by Eoss for the purpose of having Captain Smith act upon them, and that at the. same time .that Eoss made these representations he. handed to Captain Smith a bill-purporting to be for clothing,-amounting-to $15, and that Captain Smith-asked Anderson if the bill was correct; that Anderson then asked Eoss if the $10 fine which Eoss- claimed to have paid for Anderson-was included in the ..bill,- and that Foss said that it was; and Captain Smith thereupon.had Anderson to “O. K.” the bill.. Counsel for- plaintiff -in error contends that this made a fatal variance between the allegata and- the probata, in that the proof
5. Counsel also contends that there was no demand for payment made upon Captain Smith, as alleged in the indictment, and that this is a fatal variance between the allegation and the proof. The proof shows that Foss presented the fraudulent bill against Anderson to Captain Smith for payment, and, in our opinion, this was substantially a demand for payment.
6. ' It is contended that the court erred in sustaining the objection of the solicitor-general to allowing the witness Schwarz to relate a conversation between himself and the British consul. We do not think the court committed error in so ruling. This conversation was clearly hearsay and should not have been admitted.
7. Counsel further contends that, as the indictment alleges that “any amount of money paid by said captain, in response to said demand, was taken by the captain from any wages then due, or to become due, to said Gustave Anderson,” and the proof shows that no money was actually paid by the captain, but that only an attempt was made to get him to pay it, there is a fatal variance between the allegations of the indictment and the proof. In our opinion this variance was immaterial, when the State had abandoned its attempt to convict Foss of cheating and swindling, and contended only for a verdict for an attempt to commit that offense, and when the jury brought in a verdict for an attempt only. Penal Code, § 1061.
8. Counsel for plaintiff in error strongly insists that there was no evidence to authorize the verdict, and that the court should have granted the motion for a new trial. The crime of cheating and swindling is not complete unless the representations both deceive and-injure the person alleged to have been defrauded. Did Foss’s representations both deceive and injure Anderson, the prosecutor in this case? The evidence is very strong that they did deceive Anderson. But is there any evidence that he was injured by these representations? Of course, since Foss was tried and convicted only for an attempt to defraud Anderson, the question becomes this: If Foss had succeeded in getting Captain Smith to pay him $10. out of Anderson’s wages, would Anderson have been injured ? The learned counsel for the plaintiff in error strongly contends
In our opinion the remaining assignments of error are without merit. Judgment affirmed.