53 Ga. App. 194 | Ga. Ct. App. | 1936
Robert F. Turnipseed was tried and convicted on each of the' three counts of an indictment charging him with cheating and swindling. The questions for determination are whether or not the court erred (1) in overruling special demurrers to each count of the indictment, or (3) in overruling the motion in arrest of judgment, or (3) in overruling the motion for new trial. The first count charges that on July 19, 1934, in Fulton County, Georgia, the defendant committed the offense of “cheating and swindling,” for that he did conspire with Sam Worthy and Q. T.
We shall separately consider each paragraph of the special demurrer to count one of the indictment. Paragraph 1 avers that “the count does not set forth the name of the person, employees, agents, or officials of said Tripod Paint Co. to whom said alleged false representations were made.” The rule laid down in 1 Wharton’s Criminal Procedure, 845, § 633, is that “where the allegation is that a corporation was defrauded, or attempted to be defrauded, it is sufficient to set out the name of such corporation, without designating any particular individual, officer, or agent of such corporation to whom the representations or false pretenses were made.” In State v. Turley, 142 Mo. 403, 410 (44 S. W. 267), the court said: “It is not necessary in an indictment charging one with obtaining goods from a corporation by false and fraudulent representations, etc., to allege the representations were made to any officer or employee of the company, or believed by them. The indictment is sufficient if such allegations were made as would be necessary in an indictment for the same kind of an offense against a natural person. . . No one would contend that representations of the character with which the defendant is charged with making, if made in writing and addressed to a corporation, that it would be necessary to allege that they were relied upon by some particular director or agent of the corporation; and the same rule applies when such statements and representations are verbal. The indictment sufficiently informed the defendant of
Paragraph 2 of the demurrer avers that count one “does not set forth the name of the truck, whether gasoline, steam, hand, or electrically propelled.” The gist of the offense charged is the alleged fraudulent and false representation, and we are satisfied that the defendant was not entitled to the information he sought to elicit by this ground of demurrer. Paragraph 3 of the demurrer avers that “it is not alleged . . by whom said vehicle was being operated, . . whether by an agent, employee, or officer of the Tripod Paint Company.” The information sought by this ground was not necessary to enable the defendant to make his defense, or to fulfill any other requirement of good pleading; and we hold that the demurrer is not meritorious. Paragraph 4 of the demurrer avers that “the count does not set forth what person, agent or official of the Tripod Paint Co., that the alleged false representations were made to, and what alleged false representations were made by this defendant to the Tripod Paint Co.” It was not necessary for the indictment to allege to whom the false representations were made. See our discussion of paragraph 1 of the demurrer. The count sets out 'the false representations alleged to have been made, and there is no merit in the latter part of the demurrer. Paragraph 5 of the demurrer avers- that “it is not alleged that the Tripod Paint Co., its agents, employees, or officials relied on the alleged false representations alleged to have been made by this defendant.” The indictment alleges that the false representations were “untrue and were known to . . Turnip-seed to be untrue;” that they were made to the Tripod Paint Company “for the purpose and with the intent to cheat, wrong, and defraud said company out of the sum of $125,” and that “by virtue of said wilful misrepresentations did . . defraud said company out of . . $62.” We are satisfied that the indictment refutes the demurrer, and hold that the demurrer is without merit.
There is no merit in paragraph 8 of the demurrer, which avers that “it is not alleged in what way the alleged allegations as to the value of said property caused any damage to Tripod Paint Company, the prosecutor in this indictment.” There is no merit in the averment in paragraph 9 of the demurrer that “it is not set forth that the alleged false representations were knowingly and designedly made by this defendant.” If the representations were “untrue and . . known to . . Turnipseed to be untrue,” and were made “for the purpose and with the intent to cheat, wrong, and defraud said company,” and “by virtue of said wilful misrepresentations, accused did cheat, wrong, and defraud said company out of $62,” they were certainly “knowingly and de
The second count of the indictment charges that on June 6,1934, in Fulton County, Georgia, Robert F. Turnipseed “did conspire with Sam Worthy to cheat, wrong, and defraud Black & White Cab Company out of the sum of $150 in money; and in pursuance of said conspiracy accused and said Sam Worthy did represent to the Black & White Cab Company that Sam Worthy was named Robert Long, and that Sam Worthy, alias Robert Long, boarded a Black & White cab at the Jefferson Hotel on the night of May 2, 1934, for the purpose of going to 487 Washington Street, Atlanta, Georgia; that Tom Yarbrough was a passenger in said cab with Sam Worthy, alias Robert Long; that after they had reached their destination and were paying the driver the cab was said to have started, and that the rear right door had been left open, and that said door knocked Sam Worthy, alias Robert Long, down to the street curb, inflicting injuries to his back, right side, right leg, right shoulder, and his right elbow and right leg below the knee.” The allegations in the latter part of this count are so like those in the first count that we deem it unnecessary to quote them.
The third count of the indictment avers that Robert F. Turnip-seed was guilty of the offense of cheating and swindling, “for that said accused in the county and State aforesaid, on the 11th day of May, 1934, . . did conspire with Sam Worthy, alias R. L. Moon, to cheat, wrong, and defraud the Georgia Power Company out of the sum of $350 in money; and in pursuance of said conspiracy accused and Sam Worthy, alias R. L. Moon, did represent to the Georgia Power Company that Sam Worthy was named R.'L. Moon, and that Sam Worthy, alias R. L. Moon, was a passenger on the Stone Mountain car on May 2, 1934, and as he started to get off said . . car at McCurdy’s Crossing after the car had passed a regular stop he stumbled and fell to the ground in the dark; that he was thrown across the road into a ditch on account of the car starting before he reached the ground; that he sustained a wrenched back; that his right leg was injured and bruised; that his right knee and right shoulder and right hip and right elbow were injured and bruised; that he was severely shocked; and that the muscles
It is averred in the first special ground of the motion for new trial that count 1 of the indictment charges that “the defendant, along with Sam Worthy and .Q. T. Worthy, did cheat and defraud Tripod Paint Company out of $62,” while the “evidence shows that the Tripod Paint Company did not pay out any money to the said movant or to any of the other two named co defendants,” but that the “National Casualty Company paid said money to said movant and the other codefendants.” In order that this ground may be better understood, we shall advert to some of the evidence. Robert F. Turnipseed wrote a letter to the Tripod Paint Company in regard to the claim against it, wherein he stated: “No doubt you are insured. Therefore please make a report to your insurance carrier and have them communicate with me direct. If I do not hear from you or your insurance carrier within the next five days, I am instructed to file suit against you without further notice.” It further appears that the claim was settled on August 27, 1934, by a draft of the National Casualty Company, the insurance carrier. It appears that the following was indorsed on this draft: “Received of Tripod Paint Company, personal injuries. E. M. Brooks, following accident 7/16/34. E. M. Brooks. Robt. F. Turnipseed, Atty.” Elton Drake, who represented the insurer in the settlement, testified: “I signed this check or draft. This money that was paid to Brooks, that was the money of the National Casualty Company. . . The Tripod Paint Company did not put a dollar in that draft.” It also appears from the testimony of Mr. Drake that the payment of the claim “stepped up” the premium rate of the Tripod Paint Company at the end of the year. We are well aware of the rule that in a case of cheating and swindling it is essential to the legality of a conviction that the person alleged to have been defrauded sustained some pecuniary
There is also incorporated in special ground 1 an assignment of error that the proof does not support the averments in the second count of the indictment, in that said count avers that Sam Worthy, alias Robert Long, boarded a Black & White cab “at the Jefferson Hotel,” and the evidence shows that he “boarded said cab at the Winecoff Hotel.” The count avers that “in prrrsuance of said conspiracy accused and Sam Worthy did represent to the . . Cab Company that Sam Worthy was named Robert Long, and that Sam Worthy, -alias Robert Long, boarded a Black & White cab at the Jefferson Hotel.” It appears that the real averment was not that Robert Long, or Worthy, boarded the cab at the Jefferson Hotel, but that Worthy “did represent” that he did. Furthermore it appears from page 142 of the record that in an affidavit of Tom Yarbrough and Robert Long these persons swore that “they boarded a Black & White cab at the Jefferson Hotel at about 11:35 p. m. on the night of May 2, 1934, for the purpose of going to 487 Washington St., Atlanta, Ga.” There is no merit in this assignment. Special ground 2 is substantially a repetition of the previous ground, and is without merit. The same is true of special ground 3.
Ground 4 avers that the court erred in failing to comply with a long written -request to charge the jury. In view of the fact that each count of the indictment charges a conspiracy and there is proof that some of the alleged false representations specified in each count were made by accomplices, the following part of said
It is averred in ground 5 that the court erred in failing to give the jury the following requested charge: “I charge you, gentlemen, in a prosecution of this kind, knowledge on the part of the defendant that the representations made by him are false and material; the mere false statement'by this defendant accompanied by Goss’ to the prosecutor is not sufficient.” The charge is inaptly phrased, and is not possessed of that clarity which is desired. However, the court did charge the jury that “if the defendant made representations that he believed to be true, and afterwards proved untrue, you could not convict the defendant unless you believe beyond a reasonable doubt that the defendant at the time of malcing the alleged false representations knew the same to be untrue.” The charge requested is incomplete and inaccurate, and the charge given by.the court correctly presents the theory apparently invoked by the requested charge. This ground discloses no reversible error.
Ground 8 is as follows: “Movant . . insists that a new trial should be granted, because, during said trial and while counsel for the defendant was summing up movant’s case before the jury, counsel for the defendant . . attempted to argue the fact that the Georgia Power Company, one of the firms alleged to have been defrauded . . was a giant corporation which operated in practically every county in the State, and that they were trying to prosecute lawyers, particularly this defendant, because he had a few claims against them, and had only practiced law since 1931.” In the ground no attempt is made to point out any evidence in the record to support counsel’s line of argument, and an examination of the brief of evidence satisfies us that his argument included matters not in evidence. We therefore hold that the court properly sustained the objection of counsel for the State that said argument “was prejudicial and without evidence to support it.”
Ground 9 complains (1) that the court erred in failing, without
It is averred in ground 10 that the court erred in overruling the following motion of counsel for plaintiff in error: “I want to make a motion to strike from the testimony all evidence testified to by this witness, Drake, as to any insurance rates, or tabulations that he has testified about, on the ground his evidence is a conclusion and is information that he obtained from others, and as being hearsay, irrelevant, and incompetent.” It appears from the ground that Elton Drake testified on cross-examination as follows: “I am not an insurance actuarjq but I know about these things. I keep their reports in my office for the insurance companies I represent, and their rates. I do not issue policies and I do not figure rates. What I have testified about is not what I have told or what I have read; that is correct. I have seen it worked out. I furnish those figures to the company at all times. I furnish the amounts to the companies, but I don’t pay the amounts myself. I know how the company figures it, but I never actually figured it myself. What I have stated is information derived from others; that is part of my business, and I know that is the way it is worked out.” The witness testified in effect that he had seen the rates worked out. We hold that the motion to rule out the evidence was properly denied.
Grounds 11 and 12 will be considered together. It is contended that the jury which tried the defendant was illegally constituted, for the reason that J. M. Green, one of the jurors, was incompetent and disqualified to serve, for the reason that he had been previously convicted of cheating and swindling; and that by reason of that fact the defendant was deprived of his right to be tried by a legal
The substance of the motion in arrest of judgment is that count 1 of the indictment avers that the defendant collected $62 from the Tripod Paint Company, while the proof is that said sum was paid by the National Casualty Company and not by the Tripod Paint
In passing on the general grounds of the motion for new trial, we do not think it would answer any good purpose to go at length into the voluminous brief of evidence. According to the defendant’s statement, he handled in the usual way each of the cases mentioned in the three counts of the indictment, and had no knowledge whatever that they.were not bona fide in every particular. But, according to the evidence adduced by the State, each of the claims mentioned in the three counts of the indictment was fraudulent from beginning to end; and there was evidence to sustain the jury’s finding that the defendant knowingly participated in the fraud. In short, our view is that there is evidence to sustain the verdict on each count; and consequently we hold that the court did not err in overruling the general grounds of the motion for new trial.
Judgment affirmed.