Opinion
30004.
DECIDED APRIL 30, 1943.
Cheating and swindling; from Richmond city court — Judge Chambers. December 10, 1942.
Thomas L. Hill, for plaintiff in error.
W. Inman Curry, solicitor, F. Frederick Kennedy, contra.
1. Where several false representations were made, allegedly to obtain money to pay a fine and settle a case pending in the court, with the intent to defraud the prosecutor out of $75, and some of the representations induced the prosecutor to part with $63 but were not criminal because they related to the future; yet, if the last of the representations (made on a subsequent date) was knowingly false, related to a past or a present fact, and induced the prosecutor to part with $12, which the defendant falsely represented he had paid on the prosecutor's son's fine, the obtaining of this $12 by the defendant under such circumstances could be carved out of the general transaction into the specific crime of cheating and swindling, and this act would constitute in itself every element of that offense.
2. The judge did not err in overruling the motion to dismiss the accusation during the progress of the trial for the reason assigned.
3. The testimony objected to was properly admitted over the objection urged.
4. "Where a defendant is charged with the offense of being a common cheat and swindler by means of specific false representations, which he is alleged to have made, the fact that the party alleged to have been defrauded did not exercise reasonable diligence in preventing the fraud affords no defense to the accused." Crawford v. State, 4 Ga. App. 789 (11) ( 62 S.E. 501).
5. The evidence authorized the verdict.
DECIDED APRIL 30, 1943.
Clinton Jones, a witness for the State, testified in part: "I live at 1329 Eleventh Street, Augusta, Georgia. I have a son, Clinton Jones Jr., nineteen years of age, who was arrested in Aiken County, South Carolina, April 3rd 1942, and placed in the Aiken jail. This arrest was on Friday, and the following Sunday I got in touch with the defendant, Mr. Suggs, at the home of Albert Moss on Thirteenth Street, in Augusta, Georgia, in reference to his getting my boy out on bond. Mr. Suggs said he would go over there and look into the case and would then advise me as to what he would charge. I put gas and oil in Mr. Suggs' truck and he drove me over to the court house in Aiken. After investigation he said the bond would be $1150 and that he would get the boy out on bond for $25. but couldn't get him out that day, but would get him out on Monday. I paid Mr. Suggs $12 at that time and gave him the balance Monday when he came back to my home. This happened in the County of Richmond, State of Georgia, City of Augusta. The first $12 I gave him at a filling-station near the Southern Milling Company in Augusta, Georgia, and gave him the other $13 of the first $25 at my home, 1329 Eleventh Street, when he told me he was going over to Aiken to get the boy out on bond and would be back about twelve o'clock. He didn't come back at twelve, but came back just before dark and said he couldn't get the boy out that day, as the judge, under whose jurisdiction the boy was held, was out of town, but that he would go back and get the boy next day.
"The next day, Tuesday morning, he came by my house and said: `I am going back to get the boy out on bond, I will have him back this evening, you needn't worry.' Mr. Suggs came back to my house about an hour before dark and told me that as it would cost so much to get the boy out on bond it would be cheaper to go ahead and pay a fine and get the case settled, and would be less trouble; that it would necessitate the paying of bond fees to three men in Aiken County to get a bond for my boy. I then asked how much would it take to settle the case, and he replied, `You give me $75 additional to the $25 I charged you and I can get the case settled and your son won't have to go back to court.' He also said I would get my automobile released without charge that was seized when my boy was arrested, stating that $2 or $3 storage would be all I would have to pay. So, Wednesday morning, which was the next day, he came to my house again, and I informed him I didn't have the entire $75 but had $63, and told him I would pay him the remaining $12 Friday; for him to go ahead and pay the fine and get the boy out, which he said he would do, and he came back the same day with the boy and said `Jones, here is your boy, the case is settled and all throwed out; he won't have to go back to court and won't even have to make a track in Carolina.' My boy was about to be taken into the army and Mr. Suggs said, `As far as the army is concerned you can let him go before the board and let them send him to camp, and he will never be carried back to Carolina unless he goes back and commits another crime.'
"When Mr. Suggs came back for the remaining $12 I owed him he told me that everything was straightened out and there was no case pending over in Aiken against my boy. I then paid him the $12 on the understanding he had done what he promised to do. When I paid him the $12 on Friday that made $25 and $75 that I had paid him. He stated he had paid that money to the court covering the fine and had a receipt for the money, the case being settled, and said he had gotten nothing for his trouble covering the work he had done, and asked for $25 additional. While I had paid him the amount he charged me I agreed to give him $25 additional, and told him I would give him that amount on my next pay day, which would be the following Friday; and on the following Friday I did pay him the $25.
"Now with reference to having to go to court in Aiken, and with reference to the automobile which he said would be returned to me without cost, when Mr. Suggs came after his last money, I told him I wouldn't pay it unless he had gotten the boy out without having to go to court, and also my getting my car returned without cost, and he replied, `Yes, you didn't know where the boy was with the car and I talked to them about it and that is the reason you are going to get the car back;' and again stated I needn't worry about the boy having to go back to court, the case was settled and there was no charge on the court records against him at all, and said, `You will get your car, they will write you a letter when to come and get your car.'
"I waited, but didn't receive any such letter, so called Mr. Suggs and so advised him. I then asked him to go with me to Aiken to see the sheriff, which he said he would do. We went over there but didn't see the sheriff, and I told Mr. Suggs I would like to get some one over there to look after it for me. Mr. Suggs said he would take me to see a lawyer, Mr. Stansfield, saying, `He is over here and he can see the sheriff.' So he took me to see Mr. Stansfield and Mr. Suggs told him, `I have got the boy out, I don't want you to do anything for the boy, I got him clean out of the charge, but he just wants to get his automobile.' Mr. Stansfield said he didn't see how he had gotten a man off on a charge of that kind without his appearing at court; that he had never known that to happen in South Carolina; and Mr. Suggs replied that was what he had done. Mr. Stansfield then asked me if I wanted my automobile and I said I did, and he asked if I thought they would give it to me and I told him that was what Mr. Suggs had stated. He said he would have to see the sheriff; that he was hard to catch; and would charge me $10 for his services in seeing the sheriff; and that he would have him turn the automobile loose and I could then come and get it. So I agreed and gave Mr. Stansfield the $10.
"I never heard any more from Mr. Stansfield, so kept calling Mr. Suggs to see if he had heard from him, but he said he had not. On a Sunday Mr. Suggs stated he had found a letter that had been put in his mail box on Thursday before that, but had not gotten the letter out until Saturday afternoon, and said, `We should have gone over there Friday and they would have give us the automobile.' I said that I wished I had known it and he said, `Yes, but I can make it all right anyway, I will go over there Monday morning and get there before the sale starts and it won't be sold;' and stated I could let my boy go over there and bring the car back. I told him me or the boy one would go, and he replied `I rather take the boy, you work at night and you will be tired.' Monday morning, when Mr. Suggs came for me, I told him that my car was hard to start, and as I wouldn't know how much money to give my boy I would rather go over there myself. He stated there was no need of my going, to just let the boy go; that they would need him as a witness that it was my car. The car, according to the letter Mr. Suggs received, was to be sold at sheriff's sale, and I insisted on going with Mr. Suggs, so the boy and I both went, and he also went by and picked up Albert Moss, who was with my boy at the time he was arrested, and told him he wanted him to go over there as a witness as to the car being mine.
"We got over there and sat around for about an hour, when the sheriff began to sell the car. I then said, `Mr. Suggs, I believe they are going to sell my car. You have not done nothing about it.' He replied, `No, we got here too late.' and stated I might buy the car back pretty cheap. I told him that is not what he said he would do, but he replied that was all he could do. When the car was put up for sale Mr. Suggs asked if I had any money, and I told him I had $101, if the bid didn't go any higher than that to bid it in for me. He bid it in for $97 and I gave Mr. Suggs $97, and he went over to the jail and came back saying he would have to have $4.50 to cover storage. While another man there had told me he had gotten his car back without paying storage, I gave Mr. Suggs an additional $4.50 for storage. I then asked Mr. Suggs if he could get the car and go, and he said, `We will get it out and you can get it started, and you go ahead' and he would bring the boy back with him. I told him I would rather for the boy to go with me, as I didn't know what the car would do. So he told me to wait around a little.
"I got the car out, drove it around in front of the court house and parked it there. Later on that evening Mr. Suggs said: `You know this boy will have to be tried for that liquor,' and when I told him I had already paid him the $75 and he had stated the boy wouldn't have to be tried, he said, `Yes, but he has to be tried to get him off the books. They are not going to do anything with him, the judge just wants to talk to him and tell him what it will be next time.' I told him I didn't want anything to happen, that I had no more money, and he said that I needn't to worry about that. When the case was just about to start Mr. Suggs told me the judge was fining everybody who came before him $150, and said if I didn't hire him or some one else to represent the boy, he would be fined $150 or sent to the chain gang. As I didn't have any more money I asked Mr. Suggs to stand for me for the $25 and I would pay it back to him next day. Mr. Suggs said just give him the $25 next day and he would give it to Mr. Stansfield, but Mr. Stansfield said he wanted the money right then, so Mr. Suggs said to him, `You get $25 from Moss [another defendant] and I will get the $25 from Jones.' It seemed like they were framing up to get $25 apiece. Anyway, Mr. Stansfield got my boy off with a nine-months parole sentence. The next day I got the $25 and paid it to Mr. Suggs."
1. The defendant can not mingle such noncriminal false representations, which are morally wrong but not criminal, with the criminal false representation which, if standing alone, would be cheating and swindling, and thus avoid criminal responsibility for the latter criminal act. Braxton v. State, 117 Ga. 703 ( 45 S.E. 64); Sanders v. State, 59 Ga. App. 754, 758 ( 2 S.E.2d 137); Lunsford v. State, 60 Ga. App. 537, 544 ( 4 S.E.2d 112). "Where there is no merger of misdemeanor in felony or felony in treason, the criminal transaction is divisible at whatever place it can be so cut that the part will fill the law's definition of any crime." 1 Bishop's New Crim. Law, 480, § 793 (4).
Although several false representations were made to obtain a named sum of money, the fact that a part of the money was obtained subsequently to some of the false representations or promises, and were not criminal acts because they related to the future, will not prevent a conviction for cheating and swindling where there is one false representation, which related to a past or present fact, that was the inducement, or part of the inducement, to the person defrauded to part with his money. If, out of all of the several false representations, there was one which related to a past or present fact and induced the defendant to then and there part with his money and contained the other essential elements of the crime charged, it could be carved out of the other false representations into a specific crime of cheating and swindling.
The defendant had represented to the prosecutor that he would settle his son's case by paying a fine of $75. The prosecutor paid the defendant $63 on the morning of the day that the defendant was to go and pay his son's fine; the balance of $12 was to be paid the following Friday. The defendant brought the prosecutor's son back and told the prosecutor that he had paid the fine and his son was free. When the defendant came back for the remaining $12, he falsely represented to the prosecutor that the fine had been paid and that there was no case pending at Aiken against his son. The prosecutor then paid the defendant the $12 on his representation that he had paid the fine when, in fact, the case was still pending and the fine had not been paid. "The deceitful means and artful practice by which an indictment charges the prosecutor was defrauded and cheated need not be the sole inducement which caused him to part with his property. Proof that they were relied upon and constituted in part such inducement will authorize a conviction, though there may have been other contributing inducements." Braxton v. State, supra. Even if all of the money obtained up to the time this $12 was parted with, was on false promises to be performed in the future, and were not criminal acts in that they were merely false promises, or were false representations that had reference to the future only, and for this reason were not false pretenses, as come within the meaning of Code, § 26-7410, yet, when the defendant represented to the prosecutor that he had settled (not would thereafter settle) his son's case, that the son would not have to appear in court, and then and there obtained $12 in cash to the loss and damage of the prosecutor, this was a false pretense within the purview of the cheating and swindling statute, to wit, Code, § 26-7410.
The judge, sitting without a jury, was authorized, under the circumstances disclosed by the evidence, to find that the paying of the $12 was a part of the general scheme to fraudulently obtain money from the defendant, and that the obtaining of the $12 from the defendant constituted in itself every element of the offense of cheating and swindling. Lunsford v. State, supra.
2. There was no demurrer to the accusation, but after the trial had proceeded to a point where counsel for the State had concluded his statement outlining the case to the jury, the defendant moved to dismiss the accusation on the ground, "that it appeared from such statement [not from the accusation itself] no crime was committed, as no past or present fact was alleged as being misrepresented." We do not think the opening statement of counsel for the State to the jury is read into the accusation as a part thereof so as to subject such accusation, or the statement of the State's counsel to the jury as a part of the accusation, to a demurrer or to a motion to dismiss. There is no merit to the ground which complains that the judge erred in overruling the motion to dismiss.
3. The evidence objected to was admissible as being relevant circumstances leading up to and attending the criminal transaction, although not occurring at the very time thereof.
4. The ruling announced in headnote 4 requires no elaboration. The evidence authorized the verdict.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.