Lowe v. State , 111 Ga. 650 ( 1900 )

Lewis, J.

The accused was tried before a jury in the county court, under an indictment charging him with the offense of cheating and swindling. It alleged substantially that, by deceitful means and artful practices, he falsely represented to one Pugh that one Overby authorized accused to purchase for him (Overby) a peck of apples of the value of forty cents, and two pounds of candy of the value of twenty cents, and charge same to the account of Overby ; that the statements and representations were false and fraudulent, and were made by accused for the purpose of defrauding Pugh out of said merchandise, and did defraud him in the amount named. The jury returned a verdict of guilty; whereupon accused brought his petition for certiorari to the superior court of said county, and excepts to the judgment of the court refusing to sanction the same.

The only ground of error insisted on by counsel for the accused is that the verdict of the jury is contrary to the evidence, in that the testimony showed the person alleged to have been defrauded did not sustain any loss or. injury, the goods being sold on a credit and not intended as a cash'sale, and having been paid for before the finding of the indictment. The evidence for the State substantially made out the charges in the indictment. Obtaining the goods by false representations of the accused as charged was proved. Some time thereafter the seller of the goods asked payment of the man whom the accused represented had given him authority to purchase the goods on his account. He was then informed that this person gave no such authority whatever to the accused, and he refused to pay the bill. Several demands were thereafter made on the accused for the money, and he failed to pay the same. Before the indictment, however, and several months after the alleged commission of the crime, the accused had a settlement with the seller of the goods, and paid him his price therefor. The accused is indicted under Penal Code, §670, which declares: “ Any person using any deceitful means or artful practice, other than those which are mentioned in this Code, by which an individual. or the public, is defrauded and cheated, shall be punished as for a misdemeanor.” It does not require either a warrantor indictment to make an offense thereunder complete. It is complete when deceitful means or artful practices are used by which an individual or the public is defrauded and cheated. There is nothing in the contention of counsel that the goods were sold on a credit and not intended as a cash sale; for there was certainly no credit extended to the accused, but, upon the faith of his representations, to another party who was not responsible for the purchase. The crime, then, was certainly complete when the accused failed to pay for the goods after the prosecutor had become aware of his misrepresentations, and demanded payment of him, and thus being deprived of them and without receiving any pay therefor, for several months he was defrauded and cheated. The fact that he afterwards settled with the accused for the value of the goods is not pretended as a settlement of the crime that had been committed, even if the parties had authority to settle such a crime; but it must be construed simply as a settlement of a civil liability. It was perfectly legitimate, then, for the grand jury to afterwards find an indictment charging the accused with a violation of law upon the subject of cheating and swindling. This principle is decided in Williams v. State, 105 Ga. 606. It was there held that one who, for the purpose of deceiving another and obtaining a credit, makes a false and fraudulent representation to the effect that he has purchased and has become the owner of valuable property, and who in this manner defrauds the person to whom such representation is made, of money or other thing of value, is guilty of being a cheat and swindler; and a settlement between such wrong-doer and the person defrauded, made after the commission of the offense and the arrest of the former upon a warrant charging him therewith, constitutes no bar to his conviction thereof upon an indictment subsequently returned. It is true it appears in that case that a warrant had issued. In the opinion it was announced, in effect, that the restitution made by the accused did not relieve him of the consequences of his violation of the criminal statute, “which was complete before his arrest.” Thecourtadded : “ As well might it be said that one guilty of a larceny could escape prosecution by returning- the stolen goods after being arrested for the offense.” Applying this principle to the facts in- the present case, it follows that the court committed no error in refusing to sanction the petition for certiorari.

Judgment affirmed.

All the Justices concurring.