Johnson v. State, 125 Ga. 243

Johnson v. State

125 Ga. 243 | Ga. | 1906

Fish, C. J.

(After stating the foregoing facts.)

1. It is contended, for the plaintiff in error, that the accusation was bad for duplicity, as it alleged in the same count, “ (a) that the accused made a contract with the intent to defraud, and did by that act defraud the prosecutor; and (b) that after having made and entered into a contract with the prosecutor, he committed fraudulent acts by which the prosecutor was damaged.” We do not think the accusation open to a demurrer on the ground of "duplicity. The substance of the charge was, that the accused, with intent to defraud the prosecutor, entered into a contract with him, and after so doing committed the fraudulent acts by which the prosecutor was damaged. Whether the accusation was otherwise demurrable is not before us for decision.

*2462. The prosecutor testified, that he paid the accused a designated sum of money; that three specified items made up this sum; that on a former trial he testified to a different sum; that the reason for the change in his testimony was, that on the former trial he had forgotten the exact amount of one of the items, but he had subsequently refreshed his memory as to that item by referring to his books. It appears that the witness had personal knowledge of the transactions, entries of which were made on his books, as he testified that he paid the several amounts himself. He refreshed his memory as to only one item by referring to his books; he remembered the other two items. He testified: “I was not certain what amount I paid John Paine, until I looked at my books; but since looking at them and refreshing my memory, I know it was $27.60.” He was not simply undertaking to swear to the correctness of information he had derived solely by consulting his books, but he ultimately testified from his recollection, as refreshed by an examination of his books, to the exact amount he paid John Paine and about which he had previously been in doubt. This he could do. Shrouder v. State, 121 Ga. 615(2).

A portion of the testimony of the prosecutor sought to be excluded was as follows: “I have since gone to my books, and they show that the contract was made on the 16th day of December, and that the amount I paid him was $56.” This was clearly inadmissible, as the books themselves were the best evidence as to what appeared thereon. There was, however, no separate motion to exclude this portion of the prosecutor’s testimony. The motion was to exclude as a whole that portion of the prosecutor’s testimonjr which we have italicized in the statement of facts, which includes the testimony we have ruled was admissible, as well as that which’ was inadmissible. The overruling of the motion, therefore, furnished no ground of complaint. “Where a motion to rule out evidence is too broad, comprehending both admissible and inadmissible evidence given by the witness named, and not distinguishing the one from the other, the motion should be denied.” Birmingham Lumber Co. v. Brinson, 94 Ga. 517; Barnard v. State, 119 Ga. 436, and cit.

3, 4. The evidence was not sufficient to authorize the conviction of the accused. “Before one can be lawfully convicted of a violation of this statute [act approved August 15, 1903, Acts 1903, p. 90], several things, essential to constitute the offense defined, must *247be shown. Among them is, that there was a distinct and definite contract for service; and another is,- that the person contracting to ■perform this.service has, without good and sufficient cause, failed and refused to carry out his contract by performing the service.” Glenn v. State, 123 Ga. 585, 587. There was no evidence that the accused, under the alleged contract, was to perform any service or labor himself. As to the contract the prosecutor testified: “I was to furnish nothing but the land and the mule and half of the guano, and the mule was to be fed in my lot. . The defendant was to furnish half of the guano and the labor, and pay for it, and he was to'furnish his own supplies.” The accused was to furnish the labor and pay for it. This did not mean- that he was to do the labor or perform the service himself. Under the evidence, he was not a servant or laborer, but a contractor, and did not come within the scope of the .act under which the accusation was framed. Vinson v. State, 124 Ga. 19, and cit. Moreover, even if there had been any evidence that the accused was to perform the service or labor, there was no evidence that .he refused to cárry out his contract without good and sufficient cause. The court, therefore, erred- -in not granting a new trial on the ground that there was no evidence to authorize the verdict.

Judgment reversed.

All the Justices concur.