Hadden v. State , 73 Ga. App. 23 ( 1945 )

1. The denial of the motion to arrest the judgment was not error.

2. The evidence, while in acute conflict, authorized the judgment.

DECIDED SEPTEMBER 15, 1945. REHEARING DENIED OCTOBER 5, 1945. Will Hadden was convicted under an accusation charging him with the offense of cheating and swindling. His motion to arrest the judgment was overruled, and that judgment is assigned as error. The defendant also assigned as error the judgment finding him guilty of the offense charged. The case was tried by the judge without the intervention of a jury.

The accusation, which was based upon an affidavit of J. E. Johnson. the prosecutor, charged Hadden with the offense of cheating and swindling, "for that the said defendant in Richmond County, State of Georgia, on January 15, 1945, with force and arms, did wilfully and knowingly, unlawfully, by deceitful means and artful practices, cheat and defraud J. E. Johnson out of one 1938 model (28) sedan automobile, of the value of $100, to said Johnson's injury, loss, and damage — in that said Hadden did purchase from said Johnson said automobile, and did issue and utter to said Johnson a check drawn on the Bank of Stapleton, Stapleton, Georgia, for the sum of $100 as part of the purchase-price of said automobile; and, after having issued and uttered said check and received said property from said Johnson, did stop payment on said check, and, at the time of issuing and uttering said check, intended to get possession of said automobile and stop payment of said check, both of which he did, contrary to the laws of said State, the good order, peace and dignity thereof."

The motion to arrest the judgment alleged that the accusation was fatally defective and void upon the following grounds: "(a) There is no charge that the defendant injured the person alleged to have been defrauded. (b) There is no allegation of any loss or damage to the said J. E. Johnson. (c) There is no allegation that the check was not paid by the bank upon which it was drawn. (d) There is no allegation in the accusation that the defendant made any representation whatever to induce the prosecutor to act." 1. Grounds (a) and (b) of the motion to arrest the judgment are without merit. The accusation plainly charged injury, damage, and loss to Johnson, the prosecutor. Those allegations may have been subject to special demurrer, but show no cause for arresting the judgment. "Such a motion [in arrest of judgment] must be predicated upon some defect, not amendable, which appears on the face of the record or pleadings." Smith v. State, 17 Ga. App. 612 (87 S.E. 846), and citations. Ground (c) of the motion is not argued or insisted upon in the brief of counsel for the plaintiff in error, and therefore is treated as abandoned. However, ground (d) is strongly insisted upon by said counsel, who contends that the accusation was void because it failed to allege that the defendant made any representation whatsoever to the prosecutor.

The accusation was drawn under the Code, § 26-7410, which reads: "Other offenses of like kind. Any person using any deceitful means or artful practice, other than those which are mentioned in Part XII of this title, by which an individual, or a firm, or a corporation, or the public, is defrauded and cheated, shall be punished as for a misdemeanor." The present accusation is substantially in the language of that section, and was not void because it failed to charge that the accused had made any representation to the prosecutor. Under the section of the Code just quoted, "any deceitful means or artful practice" may embrace either false and fraudulent representations, or other deceitful and fraudulent conduct which cheats and defrauds the prosecutor. In other words, under this particular Code section, one may be guilty of cheating and swindling although he made no representation whatever to the person defrauded. This is clearly shown by the decision in Jones v. State, 97 Ga. 430 (25 S.E. 319), where no representation whatever was made by the defendant, and where he was found guilty of cheating and swindling in that he had used other deceitful and fraudulent means and conduct to retain the property of the prosecutor, to her damage and injury, and where his conviction was affirmed by the Supreme Court. The decisions cited in behalf of the instant defendant are in cases where the accusations were drawn under other Code sections, or where their particular facts distinguish them from this case.

2. The evidence was in sharp conflict, and would have amply authorized the acquittal of the defendant. The evidence for the State, and especially that tending to show an intent by the defendant to cheat and defraud the prosecutor, was weak and in many respects unsatisfactory, but this court can not hold that there was no evidence authorizing the finding of the judge, presiding, by consent, without the intervention of a jury.

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