Burns v. State , 20 Ga. App. 77 ( 1917 )

Wade, C. J.

1. The court did not err in overruling the demurrer to the indictment. “If any person, [1] by false representation of his own respectability, wealth, or mercantile correspondence and connections, shall obtain a credit, and thereby defraud any person of any money or other valuable thing, [2] or shall cause or procure others to report falsely of his honesty, respectability, wealth, or mercantile character, and, by thus imposing on the credulity of any person, shall obtain a credit, and thereby fraudulently get into possession of goods or other valuable thing, he shall be deemed a cheat and swindler, and shall be punished as for a misdemeanor,” etc. Penal Code of 1910, § 703.

(a) The indictment sufficiently set forth an offense under the first division of the foregoing section, and it is therefore immaterial whether the charge against the accused could have been based upon section 719 of Penal Code, or any other penal statute. .

(6) A representation made by the defendant to another, whereby he obtains a credit and thus defrauds such other person, that he is the owner of certain described property, and that it is “free from any liens or encumbrances whatsoever,” does not amount only to an assertion that there are no contract liens against such property, but also amounts to, comprehends, and includes by its terms a representation that there is no éxisting general judgment against the defendant which could be lawfully enforced against the property as a valid “lien” thereon, already duly asserted, fixed, and established in accordance with law. Moreover, the indictment in this ease alleged the existence of contract liens on the same property, in addition to the lien against it arising under a general judgment against the defendant.

(c) The indictment makes no effort to charge that the accused caused or procured -others to report falsely of his wealth, etc., but, under the allegations therein, amounting to a charge that he himself made the alleged false representations as to his wealth, by reason of which another person was defrauded, etc., only one offense is alleged.

(d) It follows, under the last ruling above, that the one general allegation in the indictment, that the prosecutor did suffer loss and damage by reason of the alleged false and fraudulent representations, qualified the' entire charge and was therefore sufficient.

2. A party voluntarily introducing a witness can not impeach' him, except where the party “can show to the court that he has been entrapped by the witness by a previous contradictory statement” (Penal Code of 1910, § 1050; Civil Code, § 5879); and he can not impeach the witness by proof of such a statement even where he claims to have been surprised and entrapped, unless the' statement was made directly to himself or his attorney (Carter v. State, 17 Ga. App. 244, 86 S. E. 413; Luke v. Cannon, 4 Ga. App. 538, 62 S. E. 110), or was made to some third person with instruction to communicate it or for the purpose of being communicated to the party or his counsel, and this was in fact done and the party acted thereon. Jeens v. Wrightsville & Tennille R. Co., 144 Ga. 48, 51 (85 S. E. 1055). In 40 Cyc. 2695, it is said: “The information as to the prior inconsistent statement must have come to the party or his counsel directly from the witness.”

(a) From the recitals in the 4th ground of the motion for a new trial it does not appear that the witness whom the defendant sought to impeach, upon the ground that he had been entrapped by the witness, had made any statement whatever to the defendant or his counsel, or that any statement was made by him to a third person with instruction to communicate it, or for the purpose of being communicated, to the party or his counsel. So far as appears, the alleged contradictory statements by which counsel for the accused stated they had been entrapped were idly made to a third person, without any intention thereby to entrap the defendant; and they could not be proved by the accused for the purpose of impeaching the witness, although the person to whom they were made may in fact have been acting for the defendant in collecting testimony in his behalf, it not appearing that the witness knew of that fact.

3. Under the rulings made in the first part of this decision, there was no error in the excerpt from the. charge of the court complained of in the 5th ground of the motion for a new trial, on the ground that “under the evidence -the defendant was not guilty under the indictment as having been predicated on section 703 of the Penal Code, and because any representation made by the defendant as to any lien of a common-law judgment would not constitute an offense under said section.”

4. The evidence sufficiently made out a case against the accused, under the provisions of section 703 of the Penal Code, and the court did not err in 'overruling the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.