7 Ga. App. 713 | Ga. Ct. App. | 1910
1. Upon the call of this case a motion was made to dismiss the writ of error, upon the ground that the evidence in the record was not briefed as required by law. The only statement of the evidence is embodied in what purports to be a copy of the petition for certiorari which was presented to the judge of the superior court, and which he declined to sanction. The petition for certiorari is property incorporated in the bill of exceptions. As the issuance of the writ of certiorari was denied, the petition for certiorari should appear before this court in the exact form in which it was presented to the judge of the court below. If alterations of the petition were permitted, it would be, in some instances at least, impossible for this court to determine whether the lower court erred in the judgment refusing to sanction the petition. The rule which requires a proper brief of the evidence in writs of error generally has no application to petitions for certiorari. The petition must be incorporated in the bill of exceptions, and there is no rule requiring the testimony adduced upon the trial in the inferior judicatory to be briefed at all. The petitioner for certiorari is expected to set forth plainly and distinctly what occurred
2. The plaintiff in error was convicted of the offense of cheating and swindling by using deceitful means and artful practice, in violation of the provisions of §610 of the Penal Code. It appears that after having sold an account for his wages as a fireman, and after‘having authorized the purchaser, as his attorney in fact, to sign any and all checks, vouchers, receipts and acquittances necessary to be signed in order to collect the amount, he collected it himself. We fail to see wherein any deceitful means or artful practice was used which can be said to be the direct cause for the prosecutor’s advancing the money of which it is alleged he was defrauded. To conform with the ruling of this court in Crawford v. State, 2 Ga. App. 185 (58 S. E. 301), the accusation in the case at bar alleges that the defendant, when he made the assignment, did not intend to allow King Brothers & Co. to collect the wages covered by it, but intended to collect them himself. It is further alleged, that King Brothers & Co. believed and relied upon, the statements contained in said application and assignment, to-the effect that they were authorized to collect the wages therein mentioned; and that the statements were false, and made for the purpose of deceiving them. The principle announced in the Crawford case, supra, is entirely sound and well settled, but neither the allegations of the accusation nor the evidence in the present case measure up to the rule announced in that case. Nothing is better settled than that the false representations which afford the -basis of a prosecution for cheating and swindling must relate to existing facts or events in the past. A representation as to a fact which it is assumed will exist in the future, or a promise which the promisee understands must be performed in the future, does not afford a basis for a criminal prosecution; because it is apparent that he who is influenced by a representation as to a fact which he knows the future must evolve, contingent upon a future action of the promisor, does not primarily rely on, and is not influenced by, an existent condition, but depends upon the confidence of the promisee
The accusation in this case states that the defendant represented that he -was 21 years old, that he was employed by the Southern Railway Company, and that he was employed during the month of June, 1909, and, while so employed, earned as salary or wages the sum of $30, that there were no offsets or counter-claims against the account, nor any orders, drafts, garnishments, or attachments outstanding, in any way affecting said account, that the account was just, true, and unpaid, and had not been sold or transferred. None of these representations or warranties were false. So far as appears from the record each of them was true. Upon this statement King Brothers & Co. purchased the defendant’s account for wages; and, in order to effectuate the purchasers’ right to collect, the defendant authorized them to sign such necessary vouchers, receipts, or acquittances as were proper. The authorization of the purchaser to collect the account for wages was not in any sense a representation of a fact. It was not artful practice. The purchasers of the account, if they sustained any loss at all, did not sustain loss by reason of this authorization; because the prosecutor, according to the recitals of ,the assignment, had already parted with his money before the assignment was made. So far as the writer is concerned, he does not look with favor upon
' I do not concur in the opinion of my brethren that the facts alleged and proved in this case do not show the offense of cheating and swindling, under the general section of the Penal Code, §670. The accusation was evidently framed in accordance with the views of this court as expressed in the case of Crawford v. State, 2 Ga. App. 187 (58 S. E. 303). We then thought those views were “sound and . fully supported by the decision of the Supreme Court in Garner v. State, 100 Ga. 257 [28 S. E. 24]”; and I see no reason to change the opinion then expressed. The majority of the court in this case reaffirm the soundness of the principle announced in the Crawford case, but think that “neither the allegations of the accusation nor the evidence in the present case measure up to the rule announced in that case.” I am wholly unable to see any distinction between the facts of this case and the illustration given in that case of wdiat would constitute a violation of this section. As held in the Crawford case, section 670 very greatly enlarges the common-law offense of cheating and swindling by false tokens, false pretenses, and false representations. It seems to have been intended to supply deficiencies which existed in the common law in reference to this offense, as well as to embrace all other offenses of like character which wrere not specifically covered by other sections of the code. The language of this section is exceedingly broad and comprehensive: “any deceitful means or artful practice” by which another is “defrauded and cheated” is within its terms. The wrords “deceitful means and artful practice” are wurds of general use, and should be given their ordinaiy significance. The jury in each particular case are to determine whether the means or practice used to cheat and defraud was “deceitful or artful,” in the ordinary signification and definition of these terms. I think that if the accused, at the time he sold and assigned the salary he had earned to the prosecutor and authorized the latter to collect it from his employer, the railroad company, on “pay-day,” had the intent, nevertheless, to himself collect it and convert it to his own use, and did accomplish this intent, he was guilty of a violation of this section. It is true
The majority of the court base the decision upon the construction that the defendant made merely an implied promise that he would not, after having sold his salary, himself collect it from his employer, the railroad company, and that in doing so he only broke his promise, and a broken promise is not a false pretense. Of course, it is well settled that a mere promise relating to the future can not be the basis of a prosecution for this offense; but, as was said by the Supreme Court in Holton v. State, 109 Ga. 127 (34 S. E. 358), and by Mr. Bishop in his work on Criminal Law (vol. 2. §224), “where there is both a false pretense and a promise which acted together on the mind of the person defrauded and induced him to part with a thing of value, and he would not have done so on the promise without the pretense, such a pretense, if false, is sufficient to support a conviction for being a common cheat and swindler.” And as also said by Mr. Bishop in the same work, “it would be difficult to find in actual life any case wherein a man parted with his property on a mere representation of fact, whether true or false, without an accompanying promise.” Here there was blended with the implied promise of the accused, — that he would not himself collect the salary from the railroad eompanj', but would permit the prosecutor to do so, — the deceitful means and
It is insisted by my associates that if the accused was guilty of any offense, it was the offense of simple larcenjq that the title to his wages had passed to the prosecutor under the assignment, and therefore, that, when he subsequently collected his salary, it was the wrongful and fraudulent taking of the personal property of the prosecutor. Was it the property of the prosecutor,' — that is, did he have such a legal title to the property as would have authorized him to sue the railroad company for it? This would depend upon whether the assignment or sale covered the entire amount of salary which had been earned by the accused at the time when he made the sale or assignment, or whether it covered only a part of the amount which had been earned. I think it fairly deducible from the facts in the record that it was a partial assignment of the salary which had been earned, and that the prosecutor had only an equitable title to the amount which had been sold to him, and could not have maintained a suit against the railroad