Chandler v. State , 80 Ga. App. 550 ( 1949 )

1. The general conduct of the defendant in other transactions is irrelevant and can not properly be put in issue unless the nature of the action involves such conduct and renders necessary or proper the investigation thereof.

2. The verdict of the jury finding the defendant guilty of cheating and swindling in violation of Code § 26-7410 being unauthorized by the evidence and without evidence to support it, was contrary to the law and the evidence, and the judge of Fulton Superior Court erred in denying the defendant's petition for the writ of certiorari directed to the Criminal Court of Fulton County wherein such verdict was rendered, error being assigned in such petition for certiorari on said final judgment and verdict of the criminal court.

DECIDED DECEMBER 5, 1949. R. Tom Chandler was tried before Hon. John S. McClelland and a jury in the Criminal Court of Fulton County on an indictment charging that the defendant in this State and said county, on May 6, 1948, "did by deceitful and artful practices obtain of and from Wade Creager, Jack Kelly and Forrest Paschal, a partnership . . $3,500.00, and the property of the above named partnership, with intent to defraud the said partnership, said deceitful means and artful practices being as follows: (a) Accused represented to Wade Creager, Jack Kelly and Forrest Paschal, a partnership, that he owned a three-year lease on the used car lot located at 499 Spring Street, N.W., in the City of Atlanta, and that he would sell and transfer to said named partnership one-third of the space he held under said lease for the period of three years for the sum of $3,500.00; (b) said representation was false when so made by the accused and was known to the accused to be false; (c) said representation was made with intent to defraud the said named partnership; (d) by means of said false representation, accused did actually defraud the said named partnership; (e) said false representation related to a past and existing fact; (f) relying upon said representation, the said partnership was thereby induced to part with the above described sum of money."

Wade Creager testified for the State substantially as follows: He and the defendant had a transaction concerning one-third of the used car lot of the defendant for $3,500 for three years, it being agreed that they (the partners) would pay the defendant $3,500 and get the premises for three years. He never saw a lease or saw any papers at all. The partners paid the money to the defendant. The next day after the money was paid they were told that the partnership had to pay $100 a month rent in addition. The defendant asked for the monthly rent. The partners did not find out about this until the next day. According to the understanding and agreement with the defendant, the partnership was to pay $3,500 for one-third of the used car lot for three years. Nothing was then said about any rent. The transaction about the rent came after the $3,500 was paid. No lease for three years was ever delivered in accordance with the agreement. "I am a musician and knew little about the used car business." Witness further testified: The members of the partnership went to the defendant and told him they wanted to buy this portion of his used car lot. Southeastern Auto Sales Company (of which the defendant was president) was occupying the lot. The defendant at first refused to sell any part of the lot. The defendant first cautioned the partners about buying this business; and after much discussion, the defendant sold the partners one-third of the used car lot for $3,500. There was a slump in the used car business and the firm did very little business. Regulations of the Government as to financing of automobiles had much to do with the slump. "It is true that I, Mr. Paschal and Mr. Kelly said to Mr. Chandler on June 16, one month and ten days after our business venture ``we wish to emphasize that it was not due to any dissatisfaction on our part in regard to any business transaction we had with him' and on the same day we reduced it to writing there, but that was the only way I could possibly get $75 or $80, or whatever I could back from it being a total loss. . . We tried to sell the lot back to the defendant, but he would not buy it, but he told us we could sell it to anyone. The defendant represented that he had the whole used car lot with the exception of the whisky store and we were to get one-third of it. We had to go out of business. I signed those papers (referring to a letter to defendant and an agreement introduced by defendant later) and I know the contents of them."

Jack Kelly, a witness for the State, testified in part as follows: "I know the defendant. . . The three of us (members of this partnership) got together and agreed to buy the lease which was supposed to run for three years for one-third of the used car lot. . . We paid the defendant this money. . . The next day we were told that we had to pay $100 a month rent. . . We never sold any automobiles. . . We advertised the property for sale. The defendant would not buy our part back, but said he would sell his part also. . . The defendant said ``Boys, I am glad to see you come in as there is a lot of money to be made in the used car business and in six months all of you ought to be driving Cadillacs.' I never did see the lease. I never got anything for the money. . . Before we paid the defendant the money, he cautioned us about the business venture, but we paid him and bought a portion of this lot. It was my understanding we would get the use of the lot for three years. . . I got dissatisfied because the business failed, that and other things. Paschal was dissatisfied and so was Creager."

It appears from the evidence that the lease of this used car lot expired July 17, 1950, and that same did not have three years to run from May 6, 1948, when the one-third of the lot was sold. It appeared from the evidence that a lease on this used car lot was held by S. Cristal, the secretary of Southeastern Auto Sales Company, of which the defendant was president, and that this lease had more than three years to run, namely, until June 9, 1955. There was no evidence to show that the defendant could not have complied with the agreement that the partnership was sold one-third of this used car lot for three years from May 6, 1949. S. Cristal testified in part for the defendant that he at one time made a three year lease to the defendant and then made one to the corporation, of which the defendant was the president and he the secretary.

The defendant's statement is as follows: "Well, it was surprising to me how this whole thing came about inasmuch as Mr. Creager was a friend of mine of some years standing and I went into the thing in good faith giving them a lease and they came in with me, and I didn't go into this thing with the intention of defrauding them or anything of that nature. That is just about the gist of it. I believe anyhow conditions came about that caused this situation existing between us today, otherwise we would still be friends. I had a lease and I don't know if it is permissible to say or not, but I could have gotten three years more than I had. It was an oral agreement with the gentlemen that just left the stand [S. Cristal] which I had thought three years from termination of his lease."

Forrest Paschal testified in part for the defendant substantially as follows: The partnership purchased one-third of the defendant's used car lot for $3,500 and the partners paid him the money. There was no definite understanding about a three year period, but "we were to be there as long as the defendant was there. . . After we bought this business, things dropped off."

The defendant introduced the following letter from the three partners to the defendant, dated June 16, 1948, and signed by each: "This letter is to inform you of certain matters which we have this day discussed at our monthly meeting of the partners of Piedmont Motors [trade name employed by partners]. Due to circumstances we did not foresee at the time we organized our business and contracted with your company for the rental of our used car lot located at 499 Spring Street, we find it advisable to make a change. The fact that certain members of our firm have incurred other liabilities, either in business or private affairs, makes it necessary to dispose of our holdings and dissolve Piedmont Motors with as little loss as possible. Wewant to emphasize the fact to you that this is not due to anydissatisfaction on our part in regard to any businessassociations we have thus far had with you. [Italics ours]. This letter has a double purpose: Namely, to offer you first opportunity to purchase our business and its holdings, or, in lieu of that, to obtain formal permission from you to sell our business to some other person who will then assume our obligations to you in the matter of rental, etc. Forrest is not overly anxious to sell. It is his belief, that business conditions will improve and that this is merely a seasonable slump in the used car business. The fact that we owe you two months back rent and see no immediate prospects of taking care of either this or our future rent, influences his signing this letter. We will appreciate an early reply." The defendant also introduced in evidence the following agreement signed by each of the three partners, Wade Creager, Jack Kelly and Forrest Paschal, "a partnership doing business as Piedmont Motors," and by R. T. Chandler, President, Southeastern Auto Sales Inc., and dated July 2, 1948: "The following is an agreement between R. T. Chandler, President of Southeastern Auto Sales Inc., hereinafter known as party of the first part, and a partnership consisting of Wade Creager, Jack Kelly, Forrest Paschal doing business as Piedmont Motors, and who are hereinafter known as party of the second part. First. Party of the first part does hereby agree to release from further responsibility from payment of accrued rentals now past due and delinquent; or any further rentals now past due and delinquent; or any further rentals on property located at 499 Spring Street, which has been occupied by Piedmont Motors, or party of the second part. Second. In return for this, party of the second part agrees to vacate said premises immediately and to forego any and all claims on said premises. Third. Inasmuch as party of the second part has paid certain moneys for the privilege of occupying the portion of the premises at 499 Spring Street, and inasmuch as it has become necessary to voluntarily dissolve Piedmont Motors due to lack of sufficient capital to operate same, party of the first part does agree that in the event he is able to sell the original lease held by him on above-mentioned property, he will turn over immediately any sum over and above $6,000 and up to $9,000 to party of the second part. Furthermore, — if any part of this agreement, for any reason is declared void, it shall not invalidate the remaining part thereof."

The jury returned a verdict finding the defendant guilty as charged in said indictment and he was sentenced to pay a fine of $250 and to serve twelve months on the public works of the county.

Thereupon, the defendant applied to the Superior Court of Fulton County for a writ of certiorari directed to the Criminal Court of Fulton County, in which he assigned error on the final judgment and verdict rendered on the ground that the same was not authorized by the evidence and was contrary to law and because of the admission, over objection, of certain testimony. The petition for certiorari was overruled and denied by the judge of the Superior Court of Fulton County and to this judgment the defendant excepts. Code § 38-202, provides that "The general character of the parties, and especially their conduct in other transactions, are irrelevant matter, unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct." It follows that the trial judge erred in admitting, over the objection of the defendant's counsel timely made, the testimony of one of the prosecuting witnesses that he had turned an automobile over to the defendant to sell with the understanding that all above $1,500 received by the defendant from the sale of this automobile was to be "split" between them and that the defendant had failed to do this and to tell him to whom he had sold the car and the amount he had received, the same being admitted by the court as a part of the general transaction, out of which grew the charge for which the defendant was being tried. The defendant was charged with and being tried for defrauding the witness and two others by selling to them one-third of his used car lot and representing that he was selling to them a three year lease on the same. The court improperly admitted same as a part of the "same general transaction." See Fitzgerald v. State, 184 Ga. 19 (190 S.E. 602), and Sanders v. State, 54 Ga. App. 238 (2) (187 S.E. 608), and cit.

The evidence for the defendant failed to prove that he was guilty of cheating and swindling by false representations. InDiamond v. State, 52 Ga. App. 184 (182 S.E. 813), it was held that "The essential requisites in the offense of cheating and swindling by false representations are: (a) that the representations were made; (b) that they were knowingly and designedly false; (c) that they were made with intent to deceive and defraud; (d) that they did deceive and defraud; (e) that they related to an existing fact or past event; (f) that the party to whom the false statements were made, relying on their truth, was thereby induced to part with his property. It is incumbent upon the State to prove all of these elements of the offense; and if any one is lacking in the proof, the offense is not made out." See Goddard v. State, 2 Ga. App. 154 (58 S.E. 304). The evidence for the State fails to show that there was any false representation knowingly and designedly made by the defendant to induce the partners to part with the $3,500 and purchase a one-third part of the used car lot. Likewise the evidence fails to show beyond all reasonable doubt that the defendant did deceive and defraud the partners. The evidence shows that the partners evidently did not consider themselves defrauded by this defendant when they were endeavoring to sell the business back to the defendant within less than two months after the trade, and when they wrote the letter which was in evidence and is quoted in the statement of facts and when they made the agreement set out therein, which was likewise in evidence. The evidence does not show that the defendant made a representation to the partnership that he was selling to them a three-year lease on one-third of the used car lot and that by reason thereof they were induced to part with this $3,500. The evidence does not show that the partners were actually defrauded by the defendant. It does not appear that the defendant could not and would not have complied with his agreement, as testified to by two of the partners, although one of them did not testify that the three-year lease was a controlling factor of the agreement between the partnership and the defendant, and of the sale to them by the defendant of one-third of the used car lot. The holder of a lease on this property until 1955 was the secretary of the company of which the defendant was president, the Southeastern Auto Sales Inc.; and the partners bought a one-third interest in this lease. It does not appear that it was not the purpose of the defendant to allow the partners to operate on the one-third of the used car lot for three years. It does not appear that it was without his power to do so. It therefore does not appear that the defendant made a false representation; that the same was made with intent by him to deceive and defraud the partners; that the partners were induced by any representation as to a three-year lease to purchase the one-third of the used car lot and that they had been defrauded by the statement as to the three-year lease. They made no complaint about any such alleged false statement in their subsequent dealings with the defendant concerning the used car lot and the disposition of their one-third. In fact, they expressly stated in writing that there was no dissatisfaction on their part as to anything done by this defendant. They signed an agreement with the defendant as president of the corporation in which no such claim as now appears was made and in which they, for a consideration, agreed to forego any claims they might have "against the premises." There is nothing in Oglesby v. State, 79 Ga. App. 771 (54 S.E.2d, 331), to the contrary of what is now held or which requires a different ruling. That case is not at all like the case at bar. Nothing to the contrary of what we now rule appears in Lockhart v. State, 76 Ga. App. 289 (45 S.E.2d 698), nor in Summers v. State, 63 Ga. App. 445 (11 S.E.2d 409). We have examined the case of Glosson v. State, 77 Ga. App. 705 (49 S.E.2d 691), and that decision is not in conflict with the holding now made, which is that the evidence does not authorize the defendant's conviction of violating Code § 26-7410, or any other penal statute of this State.

It follows that the verdict being contrary to the law and evidence, and without evidence to support it, and not authorized by the evidence adduced, it was error for the judge of the superior court to overrule the defendant's petition to that court for the writ of certiorari.

Judgment reversed. MacIntyre, P. J., and Townsend, J., concur.