13 Ga. App. 338 | Ga. Ct. App. | 1913
Lewis Williams was accused- in the city court of Elberton of the offense of cheating and swindling, and was convicted.' The accusation charged that he represented to M, E.- Maxwell & Company, a corporation, that he owned a certain mule, and that it was unincumbered, when in truth and in fact the mule did not belong to him, but “was held by one S. S. Brewer under a certain bill of sale.” It was further alleged in the accusation that the crime was committed on March 16, 1909, but was unknown to the said M. E. Maxwell & Company until April 1, 1911. The accusation was dated November 7, 1911. The defendant moved for a new trial upon the grounds, (1) that the verdict was contrary,, to the evidence and without evidence to support it; (2) that it was contrary to law; (3) that the court erred in admitting in evidence a “retainer of title and mortgage note,” executed by the defendant to S. S. Brewer & Settle, which instrument retained title and ownership in said S. S. Brewer & Settle to one black horse mule, about six years old, weighing about 1,000 lbs. and known as the “Hill mule;” (4) that the court erred in admitting in evidence, a mortgage given by the defendant to M. E. Maxwell & Company, which was not recorded in Wilkes county, although it was not disputed that the defendant was living in Wilkes county at the time of the execution of the mortgage and ever since; (5) that the court erred in giving in charge to the jury section 719 of the Penal Code. The determination of the question as to whether the verdict is contrary to the evidence and contrary to law depends upon a consideration of the assignments of error relating to the admissibility of the testimony to which the movant objected; and for this reason.we
Without regard to this, however, the document the introduction of which was permitted by the court should not have been admitted, because the accusation alleged that the defendant represented that he owned “a certain bay horse mule about six years old, weighing about 900 or 1,000 lbs., named ‘Jim,’ and that said mule was unincumbered,” whereas, in the note or mortgage admitted by the court, S. S. Brewer & Settle retained title and ownership in a “black horse mule, about six years old,” "built on blocky order,” and known as the "Hill mule.” Omitting other points of difference, it is plain that the same mule can not be properly described as a bay mule and at the same time be a black mule. The able counsel for the State very frankly ánd properly
On account of the State’s failure to prove that the offense was not barred by the statute of limitations, and the error of the court in' admitting in evidence a document showing that title was reserved