53 Ga. App. 61 | Ga. Ct. App. | 1936
Lead Opinion
Thomas E. Scott was indicted on five counts. Each count charged him with the commission of a distinct misdemeanor. All were of the same species. The first count charged him with an attempt, in conspiracy with Irma Sutton and Sam Worthy, to cheat and defraud the Georgia Power Company by falsely representing to said company that Irma Sutton was physically injured while alighting from one. of its street-cars. The second count charged him with conspiring with Grady Headers and Sam Worthy to cheat and defraud Johnson-Fluker Company by the defendant’s false representation to said company, made in a suit filed in the city court of Atlanta, that Grady Headers was struck by a truck operated by said company, whereby $150 was fraudulently obtained from said company because of such misrepresentations. The third count charged him with conspiring with T. E. Itainey and Sam Worthy, whereby $300 was obtained by defendant’s false representation to the Georgia Power Company that T. E. Eainey while a passenger on one of its street-cars was injured in alighting therefrom. The fourth count charged him with conspiring with Norman DeKrasner, whereby $150 was obtained from the Georgia Power Company by the defendant’s false representation to that company that John Jaggers, while a passenger on a street-car of that company, was injured in alighting therefrom. The fifth count charged him with conspiring with Edna Wilhoite, A. W. Wilhoite, and Sam Worthy, whereby $600 was obtained from S. II. Kress & Company by the defendant’s false representation that Edna Wilhoite was injured while a customer in its store, by tripping over an electric cord which was stretched slightly above the floor. The jury returned a verdict of guilty on the fourth count, and not guilty on the first, second, third and fifth counts.
In purging the jury, and before putting them upon the defendant, as to whether there were in the panel any stockholders in the corporations alleged to have been defrauded, including the Georgia Power Compaq, one juror replied that he was not a stockholder in the Georgia Power Company, but he did own stock in the Commonwealth & Southern Corporation, which owned all of the stock of the .Georgia Power Company. The solicitor-general thereupon stated to the court that this did not disqualify the juror, that he himself held stock in the Commonwealth & Southern Corporation. Upon this statement counsel for the defendant moved to quash the indictment on the ground that the solicitor-general was disqualified from instituting and advising with the grand jury in returning it. The solicitor-general later qualified his statement that he owned stock in the Commonwealth & Southern Corporation, by saying that he bought stock in the Commonwealth & Southern Corporation and gave it to his three children, and that he merely held it for them. This motion was likewise overruled, and Scott excepted. The judge refused to approve the defendant’s, brief of evidence, and dismissed his motion for new trial, and to this action, exception is taken.
The defendant’s demurrer that the indictment does not state a crime under the laws of this State (which is substantially the same point raised in the further contention that the facts recited in the indictment are not covered by the terms of the Penal Code of 1910, § 719 (Code of 1933, § 26-7410), making penal any
As to the other ground of demurrer: While it is true that in an indictment for 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 (O’Neal v. State, 10 Ga. App. 474, 73 S. E. 696; Oliver v. State, 15 Ga. App. 452 (2), 83 S. E. 641; Rogers v. State, 29 Ga. App. 363, 115 S. E. 668; Fischer v. State, 46 Ga. App. 207, 167 S. E. 200), and that the
On the motion to quash the indictment and disqualify the solicitor-general this question is presented: Is a solicitor, who is the father of a stockholder in a corporation which owns the entire stock of another corporation, disqualified to institute an investigation before the grand jury and to advise with them in reference to returning a true bill against one accused of defrauding the last-
Judgment affirmed.
Rehearing
ON MOTION TOR REHEARING.
Counsel for the plaintiff in error strenuously insists, inasmuch as this court is bound to follow the decisions of the Supreme Court, that what is ruled in the second headnote, supra, is contrary to the decisions of Locke v. State, 3 Ga. 534, 540, McLane v. State, 4 Ga. 335, and Johnson v. State, 90 Ga. 441 (16 S. E. 92), and should therefore be withdrawn. We recognize the principle laid down in these cases, that “ ‘The charge . . must be sufficiently explicit to support itself; for no latitude of intention can be allowed to include anything more than is expressed.' 1 Chitty, Crim. Law, 172 . . , and no argumentative inferences will supply the want of direct averments of material facts.” In the Loche case, it was held that in an indictment for bastardy it must be alleged that the accused is the actual father of the child. In the McLane case it was held that where the indictment showed on its face that it was barred by the statute of limitation, and an exception was relied on to prevent its bar, “such exception should be alleged