Thompson v. State , 67 Ga. App. 240 ( 1942 )

1. Upon a proper motion by counsel for the State, a rehearing may be granted and this court may reverse its former judgment granting the defendant a new trial before the adjournment of the term.

2. "If one meaning to steal another's goods fraudulently prevails on the latter to deliver them to him, under the understanding that the property in them is to pass, he commits neither larceny nor any other crime by the taking, unless the transaction amounts to an indictable cheat." Welch v. State, 126 Ga. 495 (55 S.E. 183).

3. "Any person using any deceitful means or artful practice, other than those which are mentioned in Part XII of this Title [Code, §§ 26-7401- 26-7410], by which an individual, or a firm, or a corporation, or the public is defrauded and cheated, shall be punished as for a misdemeanor." Code, § 26-7410. The judge did not err in overruling the demurrers to the indictment.

4. The evidence authorized the verdict and no reversible error appears.

DECIDED APRIL 3, 1942. Clarence J. Thompson was convicted of the offense of cheating and swindling. The indictment was in three counts. We set forth one of the counts as representative of each of the three. It was charged in count 1, with omission of the formal parts, as follows: "The grand jurors . . charge and accuse Clarence J. Thompson with the offense of misdemeanor (defrauding the City of Atlanta) for that the said accused, in the County of Fulton and State of Georgia, on the 1st day of November, 1940, . . being then and there an inspector, employed by the City of Atlanta, in the waterworks department, did conspire with Ben I. Tesler to defraud the City of Atlanta, a municipal corporation in above State and county, out of a large quantity of water, and did so defraud said City of Atlanta out of 846,700 cubic feet of water, of the value of $1023.56, and the property of said City of Atlanta, in the following manner, to wit: The City of Atlanta was engaged in selling and supplying water to customers and consumers. The water sold and supplied to its customers and consumers is paid for on the basis of the cubic feet supplied, as measured by the water meter installed by the city, at the established rates. Accused conspired with said Ben I. Tesler, who was operating a laundry under the name of Independent Laundry at 902 West Peachtree Street, N.W., in Atlanta, and did enter into an agreement with said Tesler to the effect that for a monetary compensation, consisting of one half of the amount saved by Tesler, he (the accused) would arrange for his water bills to be less than they had previously been and less than they would be for the true amount of water used. In conformity with said agreement accused did change and alter the water meter located at the premises of said Tesler, by removing screws, opening the meter box and changing, altering and readjusting the mechanism of said meter in some manner which is to the grand jurors unknown so as to accomplish the result of having said meter fail to register and make a record of a substantial portion of the water flowing into and used on said premises. In conformity with said agreement and in said manner accused did cause the bills rendered monthly to the said Ben I. Tesler for the water used at said laundry to be less than they should have been for the amount of water actually used, accused accomplishing this object by the above-stated means of changing and altering and readjusting the said water meter, and by other schemes and devices unknown to the grand jurors. And as a result of the said changing, altering and readjusting said water meter, and by the scheme and device above set forth, the readings upon said meter were lower than they should have been to the amount and of the value herein set forth. And as a result of the above-described fraudulent scheme and artifice, the City of Atlanta has actually been defrauded out of the said amount of 846,700 cubic feet of water, of the value of $1023.56. The offense herein alleged was unknown until the summer of 1940. And all the acts of accused herein complained of were and are contrary to the laws of said State, the good order, peace and dignity thereof."

The defendant demurred generally to each count on the grounds that the indictment charges no crime or offense in this State, and does not sufficiently allege all the elements necessary to constitute cheating and swindling under Code, § 26-7410. To the overruling of his demurrers and his motion for new trial the defendant excepted.

When this case was originally considered by this court the judgment of the trial court was reversed upon the theory that the judge erred in overruling the demurrers to the indictment. The writer dissented from that ruling. Upon motion by counsel for the State, a rehearing was granted. Upon a rehearing, the former opinion of this court is withdrawn and the judgment therein, dated January 16, 1942, is vacated, and the following opinion affirming the judgment of the trial court is substituted therefor; all of which has been done before the adjournment of this the January term, 1942.

The defendant made a motion to strike the motion for rehearing on the ground that there is no authority of law permitting the State to make such a motion, the State not being a party to the case. After thorough consideration, we are of the opinion that the State may file such a motion and be heard and the motion is overruled. See in this connection Hurt v. State, 62 Ga. App. 878 (10 S.E.2d 136).

1. "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." Code § 26-7410. Under this statute, the effect of the allegations in the indictment in this case is that the tampering with the meter through which the water flowed from the city's pipes into the consumer's pipes so changed it that it registered a less number of cubic feet of water than actually passed through it, and that by reason of this trick, scheme, or device, the city was defrauded and cheated. The authorities have established too firmly for judicial overthrow the following distinction between larceny and cheating and swindling: "If by fraud [deceitful means and artful practice] a person is induced to part with his goods, meaning to relinquish his property in them as well as his possession, he who thus obtains them may be chargeable with a cheat at the common law or under the statutes against false pretenses, yet not with larceny; because, it is assumed, the owner having actually consented to part with his ownership, there was no trespass in the taking. But this doctrine, to repeat, refers only to cases in which the ownership of the goods is meant, by the owner, to pass with them. And if the one consents to part with merely the possession, the other who takes them intending a theft goes beyond the consent, and irrespectively of the question of fraud commits larceny." 2 Bishop's Criminal Law, 469, §§ 808 (2), 809; Kent v. State,66 Ga. App. 147 (17 S.E.2d 301). In Harris v. State,81 Ga. 758 (7 S.E. 689, 12 Am. St. Rep. 355), it was stated: "The rule is, that ``if one, meaning to steal another's goods, fraudulently prevails on the later to deliver them to him, under the understanding that the property in them is to pass, he commits neither larceny nor any other crime by the taking, unless the transaction amounts to an indictable cheat. But if, with the like intent, he fraudulently gets leave to take possession only, and takes and converts the whole to himself, he becomes guilty of larceny; because, while his intent is thus to appropriate the property, the consent which he fraudulently obtained covers no more than the possession.'"

The city intended for the water to be delivered to the consumer by passing it from its pipes or possession into the consumer's pipes or possession, and be measured by the water meter installed for that purpose, and even if the consumer, meaning to steal the water, fraudulently prevailed upon the city to deliver it to him with the understanding that the possession and property in the water were to pass, the consumer committed neither larceny nor any other crime by the taking, unless the transaction amounted to an indictable cheat. Harris v. State, supra. There is nothing in the indictment alleging that the consumer was to keep the water for the city for any special purpose, or that the water was to be disposed of by the consumer in accordance with any direction of the city, or that the city was expecting the water or any part thereof to be returned to it, or that the consumer obtained the possession of the water against the city's consent. It is contended that there was no "voluntary parting with knowledge of the property on the part of the owner of it." Just why then did the city not only consent but make arrangements for its water to pass from its pipes through a meter into the pipes of the consumer? It seems to us that, after both the city and the consumer had agreed upon a purchase price, this was but a method of completing the sale of the water on a credit by thus delivering it to the consumer, and that the sale was unconditional, the intention being that the possession and the title should pass to the consumer. Foster v. State, 117 Ga. 39 (43 S.E. 421). Thus, the city received the amount of money it expected and the amount which would have been due if the water passing through the meter had been only as the city thought (Lee v. State, 36 Ga. App. 773, 775, 138 S.E. 257), and believing it had received the entire purchase price according to the sale it voluntarily parted with both the possession and the title. The changing of the meter by the defendant, which kept the city in ignorance of the true value of the water delivered, was the artful and deceitful means which the consumer and the defendant employed to defraud the city of a part of the purchase price of the water sold, by keeping the city in the belief that the consumer had obtained less water than he actually did obtain, and thus to satisfy the city with an inadequate sum given in exchange for the water. Jones v. State, 97 Ga. 430 (25 S.E. 319, 54 Am. St. Rep. 433).

We do think that the offense alleged in the indictment was cheating and swindling, because title to the water passed to the consumer when the water went from the city's pipes through the meter into the consumer's pipes and all the water involved went through the meter. The water that went through the meter ceased to belong to the city. The meter was installed for the purpose of measuring the amount of water sold. The validity of the sale did not depend upon the correctness of the measure. Merely because the meter did not measure the water correctly did not mean that a sale did not take place. To illustrate: Suppose one walked into a grocery store and took a ham from the box where it is kept and the merchant put it on the scales and weighed it and the buyer paid the merchant for the ham according to the weight shown by the scales, and then took the ham home with him, would title to the ham be in the buyer, or would it remain with the merchant because the night before the buyer had gone into the store and tampered with the scales so as to cheat him, which he had done by reason of changing the scales and later buying the ham? We think title would be in the buyer. Title to this ham passed to him, and the correctness of the scales did not constitute the test. The merchant intended to sell the ham which he put on the scales, then delivered it to the buyer to do whatever he wished with it. Of course, in a proper civil action the merchant could reassert his title to the ham, because title to the ham was obtained by fraud, and likewise in the instant case the city (except for the impossibility thereof) could later reassert its title to that water because that title was obtained by fraud; but that is not the test in the criminal case, for title actually passed and, until it is reasserted, title remains in the purchaser of the ham, and, in the instant case, in the water. "A vendee who has obtained title to property under a sale induced by fraud is the owner of the property until the seller elects to rescind the sale, and a bona fide purchaser, without notice of the fraud, from such a vendee, will acquire a good title." Mashburn v.Dannenberg Co., 117 Ga. 567 (4) (44 S.E. 97). Such would not be the case if the bona fide purchaser acquired his title from a thief who had no title. A defendant who has obtained title by fraud can not, when prosecuted for that fraud, set up the very fraud itself as a defense.

Thus, it is apparent that here the city parted with the possession and ownership voluntarily and absolutely, but on account of the deceitful means and artful practice it was defrauded of its property, to wit: a part of the purchase price of the water sold. Clark v. State, 14 Okla. Crim. 284 (170 P. 275, L.R.A. 1918C, 577). The indictment was not subject to general demurrer.

2. Under the ruling in Lee v. State, 66 Ga. App. 613 (18 S.E.2d, 778, 781), the court did not err in refusing to give in charge the request set out in special ground 1.

3. Special ground 2 sets out a request to charge on the law of cheating and swindling which states in detail the essential elements of that crime. The defendant excepts to a refusal of the judge to charge in the language requested. The judge charged fully on the law of cheating and swindling and on the essential elements of that crime. The charge given covered plainly and in substance the principles of law stated in the request to charge, and the failure to give the charge in the language requested was not error. Clark v. State, 52 Ga. App. 61 (2) (182 S.E. 195).

4. The judge did not err in failing to give in charge the request set out in special ground 3. The defendant was not entitled to have the court adopt his language, framed in argumentative form, where the charge to the jury as a whole covered plainly and in substance the principles of law stated in the request; and the failure to give the charge in the language requested was not reversible error. Summer v. State, 55 Ga. App. 185 (2) (189 S.E. 687).

5. The defendant, in ground 4, excepts to the charge of the court on other transactions, or other offenses, to the effect that they were not introduced for the purpose of convicting the defendant of the offenses charged, but for the purpose of showing plan or scheme, state of mind, intent, etc. The Supreme Court inFarmer v. State, 100 Ga. 41 (2) (28 S.E. 26), a cheating and swindling case, has held that "Evidence of this character is admissible as tending to show a fraudulent intent and scheme on the part of the accused to obtain the property of others without paying for the same, and as warranting an inference that the transaction with the prosecutor in the case on trial was made in pursuance of the same general purpose." The charge excepted to was in effect in the language of that quoted from the Farmer case, and was applicable to the facts of the instant case. No reversible error is disclosed.

6. The defendant objected to the testimony of Ben I. Kaplan set out in ground 5, which was in effect that during the years 1937 to 1940, at the instance of the defendant, he entered into an agreement with the defendant whereby he would pay the defendant a certain sum of money to keep down his water bill, and to the further effect that, when he told the defendant the solicitor's office was questioning him, the defendant told him not to tell them anything, and to tell them that the sudden rise in his water bill was due to a leak in the pipe. The court overruled the objection and the defendant excepted. The evidence sought to be excluded was relevant to the issue, showed some logical connection therewith, and revealed intent, design, scheme or plan, and it was not to be excluded because the act or transaction sought to be introduced in evidence happened to be punishable under our law as a crime. The true question is, not whether the other transaction was denominated a crime, but whether the evidence was relevant to the issue on trial. The judge did not err in admitting the evidence.Barnes v. State, 57 Ga. App. 183 (194 S.E. 839); Farmer v. State, supra.

7. The testimony of Elenor Williams set out in ground 6 comes within the rule stated in the preceding division of the opinion, and was admissible as another circumstance for the purpose of showing plan, scheme, and intent.

8. Ground 7 sets out testimony of George Tidwell to the effect that he had listened to a conversation between Ben I. Kaplan and the defendant concerning the former's conversation with the solicitor's office, set out in division 6 above. The defendant objected to it on the ground that Tidwell did not sufficiently identify the defendant's voice and therefore could not testify as to this conversation. It appears from the record that prior to this testimony of Tidwell, Kaplan had testified that he had had the conversation in question over the telephone from Tidwell's office; that he knew the defendant and recognized his voice. This testimony of Kaplan was admissible, it being for the jury to determine whether or not Kaplan had identified the defendant through the sense of hearing. Fussell v. State, 93 Ga. 450,455 (21 S.E. 97). See McClung v. State, 62 Ga. App. 892 (10 S.E.2d 303). Therefore, we think the testimony of Tidwell as to the conversation was admissible to corroborate this previous testimony of Kaplan. The judge did not err in admitting same. Aycock v. State, 62 Ga. App. 812, 818 (10 S.E.2d 84).

9. Ground 8 objects to the admission of testimony of Mrs. Nora Hightower to the effect that she had paid the defendant $2 to hold down her water bill. Under the ruling in division 6 the judge did not err in allowing the testimony.

10. Ground 9 states that the witness Zode Smith was asked: "Do you retain title to any water that is consumed by customers after it passes through the meter?" The witness answered: "We do not retain title to any water that is used by a customer after it passes through the meter. We do not exercise any control over the water after it flows through the meter into the premises of the customer." The defendant objected to the testimony on the ground that it was a conclusion, and that it was a legal question which the witness could not determine. The witness had already testified that he was manager of the waterworks department of the City of Atlanta. A corporation can speak and act only through its agents, and we think the question and answer were proper. See division 1 of this opinion. Brooks v. Griffin, 10 Ga. App. 497 (3) (73 S.E. 752); Downs v. Brandon, 49 Ga. App. 198 (174 S.E. 647).

11. Special ground 10 is based on allegedly newly discovered testimony of Mrs. A. G. Moore to the effect that she had had a conversation with Mrs. Hightower, a witness on the trial of the defendant for the offense in question, subsequently to the trial of the case, and Mrs. Hightower had told her that she never, as she had testified on the trial of the defendant, paid Mr. Thompson any money to check up her water bills at any time, and that her water bill had not been excessive until the latter part of 1940. This ground is controlled adversely to the defendant byMoore v. State, 59 Ga. App. 456 (1 S.E.2d 230). See Code, § 110-706; Kent v. State, 172 Ga. 905 (159 S.E. 238).

12. The evidence authorized the verdict. The judge did not err in overruling the demurrer to the indictment, or the motion for new trial.

Judgment affirmed. Broyles, C. J., concurs.