165 Ga. 265 | Ga. | 1927
Lead Opinion
The first headnote does not require elaboration.
One ground of the motion for new trial was based upon the refusal of the court to instruct the jury, as duly requested, viz.: “Dealings in all kinds of contracts for the future delivery of commodities are not forbidden by the act under which the defendant
This court has dealt with several phases of the subject, before and since passage of the 1906 act. Alexander v. State, 86 Ga. 246 (supra); Forsyth Mfg Co. v. Castlen, 112 Ga. 199 (supra); Kilpatrick v. Richter, 139 Ga. 643 (77 S. E. 1065); Robson v. Weil, 142 Ga. 429 (83 S. E. 207); Arthur v. State, 146 Ga. 827 (supra). These eases cite others bearing on the question. Anderson v. State, 2 Ga. App. 1 (58 S. E. 401). The Federal court first dealt with the matter out of which the present case arose, when the firm of Fenner & Beane filed suit therein to enjoin the solicitor-general and the sheriff of Fulton County from proceeding in Fulton superior court with a criminal prosecution which finally resulted, after the injunction was refused, in the conviction of Layton, Atlanta manager for Fenner & Beane. The opinion of Judge Sibley of the United States Northern District of Georgia is so clear and applicable that we quote from it as follows: “The statute is, we think, to be construed as condemning only gaming transactions, and not all sales for future delivery where a margin is deposited in lieu of full payment or full credit given. The earlier Georgia decisions did not clearly mark the distinction between contracts for future delivery where there was an intent that the goods bought should really be delivered and those in which neither party had such intent, but assumed all contracts for future delivery made on margins to be gaming. . . In 1900 the question received elaborate consideration in Forsyth Mfg. Co. v. Castlen [supra]; and in line with the general rule elsewhere, con
In' the Arthur case, supra, the accused was indicted under the 1906 act, and the evidence was very similar to the evidence here. The rulings there made are in harmony with the rulings now made in this case. Cases in other jurisdictions are so numerous that we select for citation, as a fair example, Winward v. Lincoln, 23 R. 1. 476 (51 Atl. 106, 64 L. R. A. 160), which is elaborately annotated. It deals with sales of “stocks” for future delivery. The present case is one of sales of cotton for future delivery, but the principle is the same. In the Winward case the court said: “The rapid fluctuations in the market price of stocks, and the ease with which transfers and hypothecations of stocks may be made, render
It is earnestly insisted by counsel for plaintiff in error that under the facts of this case there were no purchases or sales within this State; that the agent of Fenner & Beane in Atlanta merely represented Georgia clients and communicated their wishes to the New Orleans or other office outside this State, and that such office thereupon executed the same on the floor of the cotton exchange with a broker representing another party. If the jury had accepted this view, the contention just stated would undoubtedly raise another question; but, as we have said elsewhere, we think the act does not denounce real sales, such as the defendant claims. If, as contended by the prosecution, there were no bona fide contracts calling for actual deliveries, but only transactions where no actual deliveries were intended, then we have no occasion to deal with the question sought to be raised. The testimony by the State shows a large number of transactions. All of these are substantially alike. Clients or customers of Fenner & Beane initiated the transaction through the defendant in Atlanta, and in no case was there any actual delivery of cotton to any of these persons. Section 6 of the 1906 act (Civil Code. § 4262) declares that proof that the commodity “was not actually delivered, and that one of the parties to such agreement deposited or secured, or agreed to deposit or secure, what are commonly known as ‘ margins/ ” shall constitute prima facie evidence of a contract declared unlawful by the act. It appears that in the transactions the customers deposited margins or were allowed credit, and that Fenner & Beane, in the Atlanta office, maintained a board on which was posted information of fluctuating prices of cotton and other commodities. This is made by the act prima facie evidence of guilt. The presumptions, of course, were rebuttable. It therefore became a question whether the presumptions were rebutted. Where substantially all of the transactions
None of the remaining headnotes require elaboration.
Judgment reversed.
Rehearing
ON MOTION EOR REHEARING.
Counsel for defendant in error filed a motion for rehearing. Their argument is grouped as follows: “1st. That the court had overlooked several material facts in the record. 2nd. That the court had overlooked a statute. 3rd. That the court had overlooked several decisions both in the State and Federal courts which are controlling as authority and which would require a different judgment from that rendered.” The motion has served a useful purpose in pointing out what we consider was unsatisfactory language in some of the headnotes. Accordingly, those headnotes have been redrafted and modified. Cases counsel contend were overlooked are referred to as far as deemed pertinent. It is not deemed necessary or profitable to refer to Federal statutes further than has already been done. The motion insists that the court “has apparently overlooked the fact that Code section 4258 has nothing to do with the case — that defendant was indicted under section 4257, and that the only elements necessary for conviction thereunder are: 1st, the opening of an office, and 2nd, the purpose to carry on there the business of dealing in futures on margins.” The court did not overlook that contention. We could not accept that view of the law, and the majority of the court agreed to a contrary construction. The entire decision turned upon that as the basic principle. The caption of the 1906
The very facts the motion refers to as having been overlooked were elaborately mentioned in the statement of facts, it being made clear in that statement that no deliveries had been shown with regard to customers dealing through the Atlanta office. The statement concluded as follows: “Nowhere in the evidence is it disclosed that actual deliveries of cotton or other commodities were ever made by or to clients of Fenner & Beane in this State. Nor does the documentary evidence, giving the names of brokers outside this State with whom Fenner & Beane dealt for their Atlanta clients, furnish the name of any person from whom said clients in this State were to receive actual deliveries of cotton or other commodities through any broker or otherwise, or to whom said clients were to malte actual deliveries through brokers or otherwise.” Besides, it is pertinent to recall that the last headnote rules as follows: “As thé case is remanded for a new trial