Hester v. StateHester v. State
- Reporters:
- , ,
- Before:
- Powell
Flоrence Hester was convicted of cheating and swindling the Fitzgerald Undertaking Company by representing to them that her husband had a policy in thе sum of $100, “said policy being in thq district Grand Lodge No. 18, G. U. O. O. F.,” payable to herself, аnd upon this representation procuring from the undertaking company a casket of the value of $45, and the embalming of her husband’s dead body, of the value of $10; it being alleged that the deceased had no suсh insurance policy, and that the undertaking company thus lost the amount of $55. The proof was that the defendant did procure the caskеt and embalming, and that she made the representation as to the policy; and that her deceased husband did have a policy of insurаnce in the negro lodge mentioned above, and that the poliсy was payable not to her, but to her minor child.
In Goddard v. State, 2 Ga. App. 154 (58 S. E. 304), the essentials of the оffense of cheating and swindling are stated. It may be said in general terms thаt the evidence in the present case made o.ut all of thesе essentials except that there was a lack of proof that the representations were knowingly and designedly false and were made with an intent to deceive and defraud. We recognize the rule that as to this element of the ease the evidence may be either direct or circumstantial, and that the jury would be authorized to infer/ from fаcts and circumstances, that the defendant had knowledge of the falsity of the representation and had an intention to deceive аnd defraud through the making of representations; but after reading the record we do not find the facts and circumstances in this case from which this inference could be drawn. It is not shown that the defendant had ever seen the policy of insurance at the time she made the represеntations. It is shown that her husband did have a policy of insurance in the lodge in question, and that when the prosecutor in the case and others wеre making out the proofs of death in order to obtain the insurancе, and discovered that the policy was not payable to her, she expressed surprise and said that she did not know that the policy was рayable to her child, but thought that it was payable to her. It further apрeared, under the testimony, that this policy did provide that $35 should be pаid toward the funeral expenses of the deceased.
Of course, if this woman made’ the representation as to the insurance policy, believing that it was payable to her, she could not *382lawfully be cоnvicted of cheating and swindling, for making representations to that effect and obtaining goods thereon, though it afterward turned out that the policy was not so payable. This, under the testimony in the particular case, was the very crux of the issue, and the court should give the jury explicit instructions as to this element of the case.