27 Ga. App. 779 | Ga. Ct. App. | 1921
The indictment in this case charged that the accused, after having given a mortgage on a certain cow, “ did sell and dispose of said cow . . with intent then and there to defraud the said Mrs. Busby, mortgagee as aforesaid,” and on account of which she sustained a loss of $18. The evidence shows that the cow was sold by the sheriff at public outcry before the court-house door in Lincoln county, but it does not show under what authority the sheriff sold her. The purchaser at sheriff’s sale testified, that the accused “ did not sell her to me. He did not turn her over to Mr. Kelley (the sheriff) to sell. He did not want the cow sold, as far as I know.” J. W. Kelley swore: “I was sheriff of Lincoln county in 1919. I took possession of a certain ashy-colored milch cow belonging to James Tatum, and sold her in December, 1919, before the court-house in Lincoln county to L. H. Ward. James Tatum did not turn the cow over to me to sell. He did not get me to sell her for him. He had nothing to do with the sale, and was opposed to my taking the cow and selling her. ” The foregoing evidence is not sufficient to support a verdict of guilty. This case comes clearly within the ruling in Lord v. State, 114 Ga. 30 (39 S. E. 948), where it was held: “ The charge being that the accused, in violation of section 671 of the Penal Code [Penal Code of 1910, § 720], 'did sell or otherwise dispose of’ specified mortgaged property, and there being no evidence to show that he did either, the verdict of guilty was unwarranted and ought to have been set aside. ” As a new trial must result from the above ruling, it is unnecessary to consider the other allegations of error.
Judgment reversed.
