O'Neal v. State

10 Ga. App. 474 | Ga. Ct. App. | 1912

Hill, C. J.

1. In an indictment for the offense of cheating and swindling by obtaining money through false and fraudulent statements and representations, the ownership of the money thus obtained and the name of the person cheated and defrauded should be stated; and the proof in support of these essential allegations must be in strict conformity therewith; otherwise the variance will be fatal. 2 Bishop’s New Criminal Procedure, § 184.

2. An allegation in an indictment for cheating and swindling, that the person cheated and defrauded was Robert Hutchinson, is not supported by proof that the bank of which Robert Hutchinson was assistant cashier was cheated and defrauded by the presentation of a' check to Hutchinson as such 'assistant cashier, accompanied by certain false and fraudulent representations relating to the check, which induced Hutchinson, as cashier, to cash the check out of the funds of the bank. Under these facts the bank, and not Hutchinson as an individual, was cheated and defrauded. The fact that Hutchinson subsequently discovered that the check cashed by him for the accused out-of the money of the bank of which he was cashier was worthless, and that he had been deceived by the false representations made to him in reference thereto, and paid the loss thus incurred by the bank, did not change the character of the transaction. The offense was complete when Hutchinson, as cashier, paid out the money of the bank for the worthless check, induced to do so by the false and fraudulent representations then made to him by the accused; and the subsequent act of Hutchinson in making good the loss to the bank did not have the legal effect of relating back to the time when the act of cheating and swindling was fully accomplished, and of making him the person cheated and defrauded. Judgment reversed.

It is alleged that the court erred in refusing a timely written request of the defendant that the jury be instructed as follows: “If you find that the defendant defrauded the LaGrange National Bank by presenting to its officers this check in evidence, and you find that R. E. Hutchinson did not sustain a loss until after he had ascertained and knew the check was worthless (if it was worthless), and R. E. Hutchinson paid the check, knowing it was worthless at the time he paid it, then the defendant would not be guilty in this ease.” M. U. Mooty, for plaintiff in error. Henry Beeves, solicitor, contra.