85 Ga. App. 348 | Ga. Ct. App. | 1952
The evidence reveals that the chronological order of the events leading to the indictment and conviction of the defendant, W. H. McDilda, for the simple larceny of a cow and calf, was as follows: John Fuller testified that he was the husband of the prosecutrix in the case, Fannie Fuller, and that they were living together as man and wife during all the times in question on this case. According to John Fuller, the defendant came to their home on a Saturday with the son of a Mr. Roberson, whom Fuller apparently knew, to see about buying the cow and calf which he is charged with stealing. The cow and calf were in the woods on that Saturday, so that the defendant could not see them and he did not make Fuller any price, nor did Fuller make any trade with him at that time, but
The prosecutrix testified that she did not sell the cow and calf to the defendant and was not at home when he got them; that she did not tell her husband to sell the cattle to the defendant or to anybody; that her husband’s health was not good and “his mind [was] not good about tending to business.” She testified further that her husband gave her the $57 on the night of the day on which the defendant took the cattle off; that he handed her the money, which she counted, and her husband told her the defendant would be back on Thursday to bring more money, but she never saw him on that Thursday and did not see him until after she had (on September 23, 1950), some week and a half later, sworn out a warrant for his arrest for cheating and swindling. She also testified that she “accepted the $57 that Mr. McDilda left with my husband when he hauled my cattle off. I still have this $57.” The prosecutrix testified further: “After the indictment was returned in this case in October of last year, Mr. • McDilda came down to my place a number of times. He wanted me to take up the warrant. He said something about paying me about $125; that was not what I valued my cattle at; my price was $150; Mr. McDilda never did put $125 in my hands; he never did put anything; but it was the understanding if I would take up the warrant he would pay $125 for the cattle. Mr. McDilda said something about $43 that he had left with the sheriff. The sheriff told me that he had $43 for me; that would have made $100 in all; that was still short of $125 or $150. I did not accept any money and the sheriff did not give me any money. I still have the $57, however. . . John, my husband, sold the cow and calf on Monday, September 11 of last year. I was not at home that day; I was at Willie Herndon’s picking cotton.”
Lannis Tillman, a witness for the State, testified in part: “John Fuller is very feeble in mind and body in my opinion. I would say that he has been that way for a year. I believe that anyone
Other witnesses testified that there was no apparent effort on the part of the defendant to conceal his possession of the cattle or to conceal any of the details of the transaction.
M. M. Booth, a witness for the defendant, testified in part: “I had occasion to go to the home of Fannie and John Fuller in September, 1950, on a Wednesday. I know why Mr. McDilda went to their home. He said he owed a little balance on a debt to them. He said he wanted to go by there and pay them a little balance he owed them. He did not say about the amount. There was not anybody at home the day that Mr. McDilda and I went there.”
The defendant in his statement to the jury said that he was taken to the Fuller home by James Roberson; he had never seen the Fullers before that time; he asked John Fuller, the prosecutrix’s husband, if he could see the cows he had for sale and he replied that they were in the woods, but that he would get them up any time the defendant wanted to come back; the defendant asked Fuller if he were sure that the cattle in question were his, and he said they were and that this could be verified by a Mr. Carter, which the defendant said he did; he asked Fuller what price he wanted for them and he replied “whatever you think.” The defendant said that he offered him $85, and asked if that would be enough, and Fuller said that, since the defendant had
There is nothing in the record to indicate that John Fuller, the husband of the prosecutrix, had ever been adjudged to be mentally incompetent;- but, whether or not he was mentally incompetent or competent, authorized or unauthorized by his wife to sell the cow and calf, or whether or not the defendant employed fraud, trickery, or other artifice to obtain possession of the cow and calf from the husband, it appears from the uncontradicted evidence that the husband sold the cow and calf to the defendant and delivered possession of them to him; that the defendant, upon the delivery of the possession of the cattle, paid the husband $57 as a part of the purchase price, and told him
Under the view which we have taken of the case, the errors assigned in the special grounds of the motion for a new trial, as amended, are not likely to recur on another trial and are not here passed upon.
Judgment reversed.