Faircloth v. State , 69 Ga. App. 441 ( 1943 )

The overruling of the demurrer to the indictment was not error.

DECIDED MAY 28, 1943. The instant indictment was drawn under the Code, § 61-9903, which reads as follows: "Any person who shall sell or otherwise dispose of crops upon which there is a lien for rent and advances, before the payment of the rent and advances, without the consent of, and with intent to defraud, the lienor or assignee of the lien, and loss shall thereby be sustained by the lienor or assignee of the lien, shall be guilty of a misdemeanor." The indictment charged C. A. Faircloth with the offense of a misdemeanor, for that he, "on the 7th day of October, 1939, . . in the county aforesaid, did then and there unlawfully, and with force and arms, with intent to defraud the Metropolitan Life Insurance Company, his landlord, sell, remove, and otherwise dispose of certain farm crops, consisting of lint cotton, Spanish peanuts and peanut hay, cultivated, grown and produced on the lands of the Metropolitan Life Insurance Company, during the year nineteen hundred and thirty-nine (1939), to wit: thirteen hundred and fifty-four (1354) acres of land in the 24th land district of Bleckley County, Georgia, known as the Peacock Lamar place, whereon the said C. A. Faircloth lived during the year 1939, said crops, and the date of their sale, removal, and disposal by the said C. A. Faircloth, being described as follows: one bale of lint cotton on the 7th day of October, 1939, for the sum of thirty-one and 14/100 dollars; seven bales of lint cotton, thirty-two hundred eighteen pounds in weight, on October 13th, 1939, for the sum of two hundred forty-six and 78/100 dollars; twenty-four thousand one hundred eighty pounds of peanut hay on the fourth day of November, 1939, for the sum of eighty-four and 63/100 dollars; thirty-eight thousand forty-five pounds of peanut hay on the 7th day of November, 1939, for the sum of one hundred thirty-three dollars; sixteen thousand nine hundred thirty pounds of peanut hay on the 10th day of November, 1939, for the sum of fifty-nine and 25/100 dollars; eighty thousand two hundred thirty pounds of Spanish peanuts on the 19th day of October, 1939, for the sum of twenty-six hundred thirty-one and 44/100 dollars; twenty-six hundred fifty pounds of Spanish peanuts on the 23rd day of October, 1939, for the sum of ninety-one and 42/100 dollars; the said lands being then and there held, and the said crops cultivated, grown, and produced thereon, during the year nineteen hundred and thirty-nine (1939), by the said C. A. Faircloth, as tenant, under the said Metropolitan Life Insurance Company, as landlord, and the said landlord having furnished to the said C. A. Faircloth, as tenant, for the cultivation, growth and production of said crops, the sum of twenty-three hundred sixty-five and 9/100 dollars, as advances, under contract entered into between said C. A. Faircloth, as tenant, and Metropolitan Life Insurance Company, as landlord, of date of January 17th, 1939, whereby the said tenant obligated to pay said landlord one fifth of the Spanish peanuts, and one fifth of the lint cotton produced, cultivated, and grown on said lands during the year 1939, the said C. A. Faircloth having sold, removed, and otherwise disposed of said described crops grown, produced, and cultivated on said lands during the year 1939, without paying to the Metropolitan Life Insurance Company, as landlord, the sum of money due for the supplies and advances made by said landlord to said tenant to make said crops, or the sums of money due for rent of said premises for the year 1939, and without delivering to the said Metropolitan Life Insurance Company, as landlord, any part of the Spanish peanuts, or any part of the cotton grown on said premises during the year 1939 for the rent of said premises for the year 1939, with intent to defraud the said Metropolitan Life Insurance Company, and to the loss and damage to the said Metropolitan Life Insurance Company in the sum of twenty-nine hundred sixty-five and 24/100 dollars, the sale, removal, and disposal of said crops as set out being without the consent of the Metropolitan Life Insurance Company, contrary to the laws of the State of Georgia, the good order, peace, and dignity thereof."

The defendant interposed the following demurrer: "1. No crime is alleged in said indictment. 2. Because said indictment is too vague and indefinite to allege any crime. 3. Because said indictment is too vague and indefinite to put said defendant upon notice against what he is to defend. 4. Because the terms, conditions and provisions of said rental contract dated January 17, 1939, between C. A. Faircloth and said Metropolitan Life Insurance Company is not fully or substantially set forth in said indictment. 5. Because the consideration of said contract of rental dated January 17, 1939, between said C. A. Faircloth and said Metropolitan Life Insurance Company is not alleged in said indictment. 6. Because the date of maturity of said contract of rental dated January 17, 1939, between said C. A. Faircloth and said Metropolitan Life Insurance Company is not alleged in said indictment. 7. Because the amount due the said Metropolitan Life Insurance Company by said C. A. Faircloth as rent under the contract alleged in said indictment is not set forth in said indictment. 8. Because it is not alleged in said indictment what amount of money was due by said C. A. Faircloth to said Metropolitan Life Insurance Company for supplies and advances made by said Metropolitan Life Insurance Company to said C. A. Faircloth. 9. Because all of the allegations in said indictment in respect to a contract of rental alleged to exist between the said C. A. Faircloth and said Metropolitan Life Insurance Company dated January 17, 1939, alleges only a conclusion, and are unsupported in said indictment by the allegation of sufficient facts to show that a contract existed on January 17, 1939, between C. A. Faircloth as tenant, and Metropolitan Life Insurance Company as landlord. 10. Because it is not alleged in said indictment to whom the crops alleged in said indictment were disposed of." The demurrer was overruled, and the defendant excepted. In Bell v. State, 14 Ga. App. 425 (81 S.E. 253), this court held that in a similar prosecution, "An accusation which sets forth the offense in the language of the Code, or so plainly that the nature of the offense can easily be understood by the jury is sufficient; . . and the court did not err in overruling a demurrer based upon the ground that the accusation failed to specify what crops, or to whom the crops alleged to have been sold, were sold, or the price received, or the amount sold, or the nature or terms of the contract under which the landlord's lien for rent arose. Holt v. State, 5 Ga. App. 184 (62 S.E. 992)." The instant indictment substantially set forth the offense in the language of the Code, except that it charged that the defendant "sold, removed, and otherwise disposed of" the crops, the language of the Code being "sold, or otherwise disposed of." This discrepancy did not in anyway prevent the jury from easily understanding the nature of the offense charged, for if the defendant sold or otherwise removed the crops he would be guilty of the offense whether or not he also `removed" them. Furthermore, the word "removed" was mere surplusage. It was wholly foreign and impertinent to the offense charged, and was beyond the circumstances necessary to constitute the offense. Black's Law Dictionary defines "surplusage in pleading" as "allegations of matter wholly foreign and impertinent to the cause. All matter beyond the circumstances necessary to constitute the action."

The indictment charged that the defendant occupied the land in question and produced the crops in question thereon during the year 1939 as the tenant of his landlord, the Metropolitan Life Insurance Company, "the said landlord having furnished to the said C. A. Faircloth, as tenant, for the cultivation, growth and production of said crops, the sum of twenty-three hundred sixty-five and 9/100 dollars, as advances, under contract entered into between said C. A. Faircloth, as tenant, and Metropolitan Life Insurance Company, as landlord, of date of January 17th, 1939, whereby the said tenant obligated to pay said landlord one fifth of the Spanish peanuts, and one fifth of the lint cotton produced, cultivated, and grown on said lands during the year 1939." We think it clearly appears from the language of the indictment and the facts set out therein that the relation of landlord and tenant existed between the parties, and that the crops grown and sold by the tenant were under the landlord's lien for rent and advances. Where the rent is payable in specifics, even though the value thereof is not fixed by the contract, the landlord "may collect his rent by a distress warrant." Toler v.Seabrook, 39 Ga. 14; Rosenstein v. Forester, 57 Ga. 94;Cornwell v. Leverette, 127 Ga. 163 (56 S.E. 300). "When title is shown in the plaintiff and occupation by the defendant, an obligation to pay rent is generally implied; but if the entry was not under the plaintiff, or if possession is adverse to him, no such implication arises." Code, § 61-103. And "Where no time is specified for the termination of the tenancy, the law construes it to be for the calendar year." Code, § 61-104. The cases cited in behalf of the defendant are distinguished by their particular facts from this case. In our opinion the overruling of the demurrer was not error.

Judgment affirmed. MacIntyre and Gardner, JJ., concur.