Hudson v. State, 5560

5560 | Ga. Ct. App. | Apr 18, 1914

Russell, C. J.

Tliis is the second appearance of this case before -this court. The evidence upon the trial now under review differs from that contained in the record of the former trial (12 Ga. App. 533 (77 S.E. 828" court="Ga. Ct. App." date_filed="1913-04-02" href="https://app.midpage.ai/document/hudson-v-state-5606312?utm_source=webapp" opinion_id="5606312">77 S. E. 828)), in that in the record sub judice there is no reference to the testimony adduced upon the former trial to the uSect that the advance of $1.05 was made in response to the demand of the laborer for an advance of $10.80; and, in fact, the prosecutor, in testifying in the instant case, denied giving the testimony attributed to him in the brief of the testimony of the former trial. Begardless of this variance, however, we deem the case absolutely controlled, as was held when it was here before, by the ruling of this court in Mulkey v. State 1 Ga. App. 521 (57 S. E. 1022), which amounted to a finding of not guilty as to the first count, and placed the ease solely upon the allegation that the accused obtained articles of the value of $1.05 with the intent not to perform the services contracted for, and with the intent to defraud the prosecutor. However, all the evidence shows that the $1.05 would not have been advanced except for the contractual relations existing between the prosecutor and the accused. The advancement depended wholly upon the original contract, or else the whole amount advanced is a mere ordinary debt upon open account. It was the only contract which called for the performance of services by the accused for his employer, and the advancement can not bo separated from the original contract, because it is not claimed that any fraudulent representation was made for the specific purpose of inducing this advancement. This being true, the inference that the defendant did not intend to carry out his original contract, at the time this advancement of $1.05 was made, can not be supported, unless the circumstantial evidence adduced for that purpose is inconsistent with any other reasonable supposition than that it was the deliberate purpose of the accused, at the time that he obtained the $1.05, to quit his employer’s service, to the injury of the latter. On the contrary, it is reasonably plain that the accused intended to continue to work under the contract. His employer testified that he went to work after receiving the 'advance, cutting brush on the employer’s place. He seems to have disagreed with his employer as to the necessity or importance of doing the precise work he was directed to perform, and to have minimized the importance of cutting the briers, as he suggested that he ought to be doing other work; and lie was in the wrong as to all of this, for it was his duty to do the work he was directed by his employer to do. It was wholly wrong for the defendant to become angry and quit his employer, but his refusal to continue in the specific employment to which he- was directed by his employer, while it constituted a breach of the contract, does not indicate that at the time he obtained the advancement he did not intend to perform any labor or intended to quit the service of his employer. On the contrary, the fact that he started to work, and only quit because he thought other work more important, rather indicates that' at the time he obtained the advancement he intended to continue in his employer’s service; and the conclusion that he left his employer on account of unjustifiable anger is as reasonable as that his quitting related back to and depended upon a fraudulent intent entertained two days previously, when he obtained the $1 and the five cents worth of tobacco,' if not much more so.

. The .provisions of section 713 were never intended as a means of collecting debt by the process of criminal law, and this case falls squarely within the ruling of this court in Patterson v. State, 1 Ga. App. 782 (58 S.E. 284" court="Ga. Ct. App." date_filed="1907-05-09" href="https://app.midpage.ai/document/patterson-v-state-5602393?utm_source=webapp" opinion_id="5602393">58 S. E. 284), Mobley v. State, 13 Ga. App. 728 (79 S.E. 906" court="Ga. Ct. App." date_filed="1913-10-30" href="https://app.midpage.ai/document/mobley-v-state-5606820?utm_source=webapp" opinion_id="5606820">79 S. E. 906), and numerous similar decisions.

Judgment reversed.