Hill, C. J.
The giving of a cheek on a bank in payment of a debt, without any representation by the drawer that he has funds in the bank upon which the check is drawn, or that the check will be paid by the bank on presentation, though it be given with knowledge on his part that he has no funds in the bank, does not of itself constitute the offense of cheating and swindling, under the statutes of this State defining that offense. An accusation charging the accused with cheating and swindling the payee of a check, in that he gave to the payee the check in payment of a debt, without further charging that some false representation was *396made by tbe accused to induce the payee to take the check, set forth no offense, and a motion in arrest of judgment should have been sustained. Judgment reversed.
Decided January 15, 1912.
Accusation of misdemeanor; from city court of Albany — Judge Crosland.
October 13, 1911.
The accusation charged J. L. 'Williams with “the offense of misdemeanor, for the said defendant . . unlawfully and with force of arms, by false representation of his, the said J. L. Williams’, own respectability, wealth, and mercantile correspondence and connections, did obtain a credit, and thereby defraud G. W. Wallace of $5.00 in money. He, the said J. L. Williams, on the day and year aforesaid, purchased of the said G. W. Wallace merchandise in the sum of $5.00, and gave to the said G. W. Wallace his, the said J. L. Williams’, check [described]; said check being drawn on the Bank of Thomasville; and he, the said J. L. Williams, at the time of the giving of said cheek, knew that he had no money in or account with said bank; thereby defrauding the said G. W. Wallace out of $5.00, contrary to the laws of said State,” etc. On conviction the accused made a motion in arrest of judgment, on the ground that the accusation was fatally defective, because: (a) There is no charge that the defendant injure,d the person alleged to have been defrauded. (T)) There is no allegation that there was any loss or damage to the said Wallace, (c) There is no allegation that the check was not paid by the bank on which it was drawn. (d) There is no allegation that there were no funds sufficient to cover the check at the said bank at the time the check was made or presented, or at the time the check could be presented, (e) There is no allegation that any money or article of value was delivered by the said Wallace to the defendant. To the overruling of this motion the defendant excepted-
Citations in brief of counsel for plaintiff in error: Ga. Rep. 97/199; 120/858; 109/52, 53; Gat. App. Rep. 2/154, 696; 4/510; 8/119.
D. H. Redfearn, R. J. Bacon, for plaintiff in error.
J. W. Walters Jr., solicitor, contra.