104 Ga. 78 | Ga. | 1898
An accusation in the criminal court of Atlanta, charging D. W. Ryan with being a common cheat and swindler, was as follows: “State of Georgia, County of Fulton, City of Atlanta. I, Emma L. Mallory, in the name and behalf of the citizens of Georgia, charge and accuse D. W. Ryan, of the county and State aforesaid, with the offense of misdemeanor; for that the said D. W. Ryan, in the county and State aforesaid, on the day of August, eighteen hundred and ninety-seven, did commit the offense of being a common cheat and swindler, in this, that on the 14th day of August, 1897, Joseph Mallory, husband of affiant, being imprisoned in Fulton county jail under a warrant or indictment charging him with burglary and the said D. W. Ryan being prosecutor in said case, he, the said D. W. Ryan, stated to affiant that he was prosecutor in said case and as such prosecutor he could and would have him, the said Joseph Mallory, released and discharged from said charge and imprisonment, if she, the said Emma L. Mallory, would pay to him the sum of fifty dollars. That affiant, relying on said statement of the said Ryan and believing that he could and would release her said husband as he agreed, paid to him, the said Ryan, the said fifty dollars, after which the said Joseph
“December Term, 1897. Emma L. Mallory, Prosecutor.
“Criminal Court of Atlanta. J. F. O’Neill, Solicitor.”
The accused demurred generally to the accusation, which demurrer was overruled. There was a verdict of guilty, and the accused moved for a new trial, on the grounds, that the verdict was contrary to law and evidence; “that the court erred in not quashing the indictment on demurrer,” and “ that the ■court erred in not charging, upon request of counsel, that the prosecutrix was chargeable with notice of the law that a felony could not be compounded.” A new trial was denied, and to this ruling exception is taken.
If Ryan, the accused, knowingly and with intent to defraud and cheat the prosecutrix, falsely pretended to her that he, as the prosecutor in the warrant or indictment against her husband, had the power to compromise the crime therein alleged against him, and thereby deceived her, and by means of this false pretense and a promise to settle the prosecution against her husband, obtained fifty dollars from her, and there was a breach of such promise, then the accused is guilty of the offense of cheating and swindling, under section 670 of the Penal Code, which reads as follows: “Any person using any deceitful means or artful practice, other than those which are mentioned in this Code, by which an individual, or the public, is defrauded and •cheated, shall be punished as for a misdemeanor.” This section is a statutory extension of the common law of cheats, and is designed to make penal cheating and swindling by false pretenses as well as by false tokens. The vital question made in the present case is, did the accused make a false pretense to
In the case of Queen v. Mayor &c. of Tewkesbury, L. R., 3 Q. B. 629, where the question was, whether the mere knowledge on the part of the electors of the borough of Tewkesbury, who voted for B. for town councilor, that he was mayor and returning-officer of such borough, amounted to knowledge that he was disqualified for election, thereby causing their votes to be thrown away, &c., Blackburn, J., delivering the opinion, said: , “Every elector in the borough must have known that Blizard was the mayor, and every elector who saw him presiding at the election must have known as a fact that he was the returning-officer, and every elector who was a lawyer, and who had read the case of Reg. v. Owens [28 L. J. (Q. B.) 316], would know that he was disqualified. From the knowledge of the fact
In the case at bar it will be observed that the accused is not pleading his own ignorance of the law as a defense, nor the ignorance of the prosecutrix, but is attempting to shield himself from punishment by contending that the prosecutrix should not have been deceived by his false representation, because under the law she was bound to know of its falsity. He can not avail himself of such defense, for the reason that, as before stated, no such knowledge of the law is imputed to her. While this court held, in Tatum v. State, 58 Ga. 408, that “ Knowingly to misrepresent a blind horse as sound (the horse’s eyes being apparently good) and thereby to cheat and defraud a person swapping for the animal, is to commit the offense of being a common cheat and swindler, under section of the [Penal] Code [670]”; and in Rainey v. State, 94 Ga. 599 (by two Justices) that, “The evidence showing that the defects in
Judgment affirmed.