51 Ga. App. 207 | Ga. Ct. App. | 1935
This case was on November 16th, 1934, transferred by the Supreme Court to the Court of Appeals for the following reason: “The defendant was convicted of a misdemeanor, in the city court of Macon. IJpon the trial she invoked a ruling by the court as to the constitutionality of the act of 1918 (Ga. Laws 1918, p. 262), and the judge held the act constitutional. The defendant thereafter sought to raise the same question in one of the grounds of her motion for a new trial, but took no exception, in the motion or otherwise, to the ruling previously made upon the trial. Held, that the previous ruling, not having been made the subject of any timely or proper exception, became the law of the case and eliminated the constitutional question; and the case not being one which would otherwise fall within the jurisdiction of the Supreme Court, it must be transferred to the Court of Appeals. U. S. Fidelity & Guaranty Co. v. Koehler, 161 Ga. 934 (132 S. E. 64); Coats v. Casey, 162 Ga. 236 (133 S. E. 237); Brightwell v. Oglethorpe Telephone Co., 176 Ga. 65 (166 S. E. 646).”
The defendant, Ezetter Nelson, was tried under a separate accusation which alleged a violation of the act of 1918 (Ga. Laws 1918, p. 262; Code of 1933, §§ 67-9902, 9905), which reads as follows: “A mortgage [mortgagor], giver of purchase-money lien, lien for rent, or any lien created by contract between the parties, or the holder or possessor of any said property under mortgage or liens above referred to, who shall run off, remove, hide or in any way dispose of said property under mortgage or lien, so as to hinder, delay or prevent the levying officer of the county of defendant’s bona fide residence from levying on any property covered by mortgage or lien by virtue of the foreclosure of said mortgage or lien, shall be guilty of a misdemeanor. . . When search shall have been made in any of said cases by the levying officer for the purpose of levying said execution, and the property described therein is not found at defendant’s home, and if defendant shall fail or refuse to direct said levying officer to said property, said officer shall enter a nulla bona; and the testimony of the officer or the entry of nulla bona, when properly proven, shall shift the burden of proof to defendant.” The defendant was convicted, and excepted to the overruling of her motion for a new trial.
Movant contends that the retention-of-title contract attached to the accusation was dated September 19, 1933, and said accusation
The State having proved the retention-of-title contract alleged, as to date and otherwise, there is no variance as to date between the written instrument proved and the written instrument pleaded. The act in the instant case was a crime, no matter what the date was on which it was committed, if it was within the statute of
The evidence was in part that the defendant, Ezetter Nelson, the mother, and her three daughters, Mabel Mitchell, Lois Hall, and Annie Nelson, lived together at 234 Orange street. On August 30th, 1933, Mabel Mitchell and Lois Hall went together to the Empire Furniture Company in Macon, Georgia, and Mabel Mitchell purchased some personal property from the company, paying down a small first payment and giving a retention-of-title contract to secure the balance of the purchase-money; she ordered the property delivered to a vacant house at 203 Woods Alley (which was a fictitious address); on August 30, the afternoon of the delivery of the property, Mabel Mitchell and Lois Hall and the defendant, Ezetter Nelson, borrowed a hatchet and nailed up the windows and doors of the vacant house on Woods Alley, and left; the next morning, the same three persons and a white man in a truck drove up to this house, loaded this property on the truck, and carried it away. This vacant house had not been rented to any one for a month prior to and a month subsequent to August 30, 1933, the date on which the defendant and her two daughters were using it. On September 12, 1933, Annie Nelson, the third daughter, who lived at the same house with her mother, Ezetter Nelson, and the two daughters above mentioned purchased from Johnson Brothers, who conducted a furniture store, a bill of furniture, paid a small amount down, and disposed of the same. On September 19, 1933, Ezetter Nelson, the mother, bought personal property from Johnson Brothers’ furniture store, made a small payment, and gave a retention-of-title contract for the balance of the purchase-money; ten days later one of the representatives of Johnson Brothers went to the home of the defendant at 234 Orange street and there found that the house was open and vacant, and, upon a search, found no property in the house, and after this time neither the mother nor any of the three daughters could be found until a warrant was issued and they were finally arrested, nor could any of the property above referred to be found.
The first question to be determined is: Was there sufficient evidence to authorize the jury to find, on the whole case, that a conspiracy existed between the mother and the three daughters. The
We think the evidence as a whole authorized the jury to find that there was a conspiracy between the mother and the three daughters to defraud the Empire Furniture Company and Johnson Brothers, in that they did “run, remove, hide, and conceal said property,” contrary to the statute. Fraud is generally a matter of secrecy; it is only by collecting together numerous circumstances ofttimes that it can be brought to light and exposed. Farmer v. State, 100 Ga. 41 (28 S. E. 26). “A conspiracy may be inferred from circumstances. While it can also be established by direct proof, it can not generally be proved except by circumstantial evidence. It is seldom that any one act, taken by itself, can be seen as tending to prove a conspiracy, but when taken in connection with other acts, its tendency to prove the fact may be more clearly discerned. We may be satisfied from circumstances attending a series of criminal acts, that they result from concerted and asso
The acts of the third daughter, Annie Nelson, were admissible for the same reason, for where the intent is material, other acts of the same character, about the same time, tending to show a common purpose and design to defraud, although such acts were committed by a coconspirator, are admissible. State v. Flood, 148 Iowa, 146 (127 N. W. 48); Howie v. State, 15 Ala. App. 185 (72 So. 759).
Letters written by one of the coconspirators during the existence
The overruling of the motion for a new trial was not erroneous for any of the reasons urged.
Judgment affirmed.