100 So. 377 | Miss. | 1924
delivered the opinion of the court.
Appellant was tried and convicted of fraudulently obtaining board in violation of chapter 137, Laws of 1912 (sections'2068 and 2069, Hemingway’s Code). The affidavit charging the offense alleges that the appellant “did unlawfully, willfully, and with the intent then and there to cheat, wrong, and defraud affiant, who was the owner or keeper of an eating house, abscond and leave affiant’s premises, and go to parts unknown, without the consent and approval of affiant, without paying and making satisfaction of the sum of sixty-eight dollars and ninety cents, the same being an amount then and there due and owing affiant for board and lodging, against the peace and dignity of the state of Mississippi.”
In our opinion the evidence is insufficient to make out the offense charged. The prosecuting witness in his testimony states that Mr. Robinson came to him in 1920 about “the 1st of September, and told him that he, Robinson, wanted board for himself and his crew, and that he would be responsible for it, and I told him all right, and he told me that he would pay me along on pay days. Mr. Robinson came there and contracted seventy dollars worth of board for himself and his crew. But he bought a gallon of molasses which amounted to one dollar and ten cents, and I gave him credit on his board for that, which left the amount due me sixty-eight dollars ninety cents. Pay day came, and he was doing business with a firm at Laurel, and he said that he would go to Laurel and be back on Saturday night and see me here and settle with me, and I met the north-bound train, and Mr. Robinson was on it, and he told me he was going to Newton, and he says, 'I will be out the first of the week and pay you,’ and I says, 'That will be all right.’ ” He further stated that Robinson promised he would be back the next week
The latter part of section 2069, Hemingway’s Code, expressly provides that “this act shall not apply where there has been an agreement for delay in payment. ’ ’ The prosecuting witness’ own language shows that the agreement was to pay on a pay day. It was not a cash consideration. The affidavit does not allege a false or fictitious show of property or baggage or anything provided'for in section 2069, Hemingway’s Code, except the going away without paying the bill and the obtaining of the board.
We think the two sections should be taken as an entirety, and that it is necessary to charge and prove some fact from which the fraudulent intent can be inferred. Of course, the proof must establish something more than a mere obtaining of board and a.failure to. pay the bill.
The judgment of conviction will therefore be reversed, and the appellant discharged.
Reversed, and appellant discharged,
