Jones v. State

| Ga. | May 4, 1896

Lumpkin, Justice.

The nature of this case and of the questions involved in it will be rendered sufficiently apparent by reading the foregoing syllabus in connection with the following brief discussion.

1. One of the grounds of demurrer to the indictment was, that it contained certain interlineations and erasures. The demurrer did not set forth what they were, and .the judge certifies, in effect, that they were apparently made before the indictment had been acted upon by the grand jury. ~We therefore have no difficulty in holding that there was no error in refusing to qua&h the indictment on this ground.

2. The acts which the indictment charged the accused with committing constituted the offense of being a common cheat and swindler under section 4595 of the code. "With a full knowledge of the truth, he falsely stated the weight of the hay, for the purpose of defrauding the purchaser. In principle, the case is quite similar to that of Tatum v. State, 58 Ga. 408, where it appeared that the accused knowingly misrepresented that the eyes of a blind horse, which apparently were good, were sound, and thus cheated and defrauded another person. The recent case of Parks v. State, 94 Ga. 601, is also in point. There the accused cheated and defrauded another by knowingly telling a wilful falsehood as to the then existing capacity of a cow to yield milk, a matter as to which the person to whom the oow was traded depended upon tíre statement of the accused. A promise not meant to be kept is not such a false pretence as will support a prosecution for cheating and swindling; the false pretense must relate to some existing or past fact. Bish. St. Cr. (1873) §451. “It appears tkat a mere false statement of tke weight of an article sold is a sufficient false pretense.” 2 Bish. New Cr. Law, §442. See, also section 443, and cases cited. In support of the text above quoted tke author cites the case of Reg. v. Sherwood, 40 Eng. Law & Eq. 584, which may also be found reported in 7 Cox Cr. Cas. 270. In tke volume first cited, tke syllabus is in tke following words: “The prisoner, having contracted to sell and deliver to tke prosecutrix a load of coals at 7d. per cwt., delivered to ker a load of coals which ke knew weighed only 14 cwt., but which ke fetated to her contained 18 cwt., and ke produced a ticket showing suck to be tke weight, which ke said ke had himself made out when tke coals were weigked. She thereupon paid kim tke price as for 18 cwt., wkick was 2s. 4d. more than was due. Held, tkat tke prisoner was indictable for obtaining tke 2s. 4d. by false pretences.” It will be noted tkat this case is very similar to tke case at bar.

There was no error in holding tkat tke indictment charged an offense under tke above cited section of tke code; and as tke evidence was ample to support tke indictment, the conviction was not illegal.

3. The indictment did not allege tkat tke accused, as a part of tke false and fraudulent representations made to tke purckaser, exkibited to tke latter a written ticket purporting to evidence the weight of tke hay. We hold, nevertheless, tkat tke ticket in question was admissible at tke trial for tke purpose of showing by what means tke accused endeavored to substantiate tke false representations made by kim and induce tke defrauded party to believe the same, and tkat it was also competent to prove tkat tke accused' exkibited it to tke purckaser at tke time of selling the hay for the purpose stated. The existence of the ticket and the use made of it certainly threw light upon the transaction, and explained the nature of the false representations made by the accused and the purpose and intent with which he made them. Such representations need not consist solely of mere oral statements, but may be in writing or by signs, or the like; and where, in order to prove the real meaning and intent of the words actually spoken by the accused, it is essential to show his acts and conduct in connection therewith, evidence as to the latter should be received. Here the exhibition of the ticket and the nature of its contents constituted a part and parcel of what the accused did in carrying out his purpose of defrauding the purchaser, and are practically inseparable from his oral representations.

4. The stub' of this ticket, referred to in the 4th headnote, we think was also relevant and material evidence, as bearing directly upon the question whether or not the figures originally entered upon the ticket had been changed by the accused in order to enable him the better to defraud the purchaser of the hay by inducing him to believe the false representations made in regard to its weight. The principle upon which this stub was admissible in evidence was recognized by this court in the case of Davis v. State, 91 Ga. 167. There, a book kept by a car inspector “for the purpose of preserving the memory” of the numbers of railroad cars, was held admissible, in connection with the inspector’s testimony as to its genuineness, for the purpose of proving the numbers of certain cars, and thus identifying brasses stolen therefrom, the inspector being unable to testify as to these numbers independently of the book. In the present case, the person who made out both the ticket .and the stub testified that the latter was made out and kept “for the purpose of preserving a record of the weight, and that he could not testify as to the matter except by reference to the stub.” Taken in connection with the other evidence, the contents of the stub were entitled to be treated the same as the sworn testimony of the witness as to other matters concerning which he professed to remember independently of any aid derived therefrom.

Judgment affirmed.