Garner v. State , 1897 Ga. LEXIS 36 ( 1897 )

Lumpkin, Presiding Justice.

An indictment returned by the grand jury of Gwinnett county was transferred to the county court for trial. It charged John T. Garner with the offense of being a common cheat and swindler, “for that the said John T. Garner, on the 20th day of July, in the year of our Lord one thousand eight hundred and ninety-five, in the county aforesaid, with force and arms, with intent to cheat and swindle one W. A. Lee, did then and there use certain deceitful means and artful practices upon said W. A. Lee, to wit: by then and there falsely and fraudulently buying from the said W. A. Lee a certain buggy and paying for the same with a check upon the bank of John H. and A. L. James, of Atlanta, Ga., and falsely and fraudulently stating that said bank check would be paid upon presentation; and by then and there, after having so given the said check and taken possession of said ^go7> falsely and fraudulently, and with intent to cheat and swindle said ~W. A. Lee, going to the bank of said John II. and A. L. James and stopping the payment of the said -check, and drawing out the money he had on deposit in ■.said bank; and by such deceitful means and artful practices, ■■as aforesaid, did then and there cheat and swindle the said ' ~W. A. Lee, and to the damage of said W. A. Lee in the sum ■ of ten dollars on account of the refusal by said bank to cash .said check aforementioned.”

The accused was found guilty; carried the case by certiorari to the superior court, and now excepts to its judgment affirming the judgment rendered by the county court. The assignments of error contained in the petition for certiorari present for consideration two material questions: first, whether the indictment sufficiently charged a violation •of section 670 of the Penal Code; and second, whether or not the accused could be lawfully convicted under this indict.ment, if at the time of purchasing the buggy he was acting honestly and in good faith, and then had no intention of defrauding the prosecutor by subsequently stopping the payment of the check.

1, 2. The indictment does not in terms allege that the intention to stop the payment of the check existed in the mind of the accused at the time of making the purchase; but taking all its allegations together, there can scarcely be a ■doubt that a charge to this effect is necessarily embraced in the language which the indictment does contain. If the ac•cused falsely and fraudulently purchased the buggy, paying for the same with a check upon a bank in another county, ■and at the same time falsely and fraudulently stated that this check would be paid upon presentation, and if nothing ■prevented its payment except the order subsequently given by the accused to the bank not to pay the check, it follows with inevitable certainty that the fraudulent intention to give this order must have been in the mind of Gamer at the very time he bought the buggy. Otherwise, under this state of facts, his representation that the check would be paid upon presentation could not have been either false or fraudulent. We therefore, without serious difficulty, reach the conclusion that the indictment was sufficient, and that the venue was properly laid in Gwinnett county.

3. The remaining question arises upon a refusal of the county judge to give in charge to the jury a request to the effect, that if the accused made the purchase in good faith, with no intention of stopping the payment of the check, and that such an intention was never formed or acted on in the • county of Gwinnett, but only after the accused had gone into the county of Fulton where the bank in question was-located, there could be no lawful conviction under this indictment. The refusal to give this instruction was error. The accused certainly could not be convicted of cheating and swindling in Gwinnett county, if everything he did in that' county was free from fraud or dishonesty. If he was guilty of any fraud at all, it was an open question, for determination by the jury under the evidence pro and con, whether or ■ not this fraud had its inception in Gwinnett county, or originated in Fulton county. It is manifest, therefore, that the error above indicated is cause for a new trial. Whether or not, upon the assumption that all of the acts of the accused in Gwinnett county were fair and honest, and that he subsequently conceived and carried' out in Fulton county a fraudulent intention to- stop the payment of the check, Garner would be indictable in the latter county, is not now for ■ determination.

Judgment reversed/.

All the Justices concurring.