Davis v. State

Broyles, C. J.

We desire to briefly discuss the third headnote. Mrs. S. W. Davis was charged with procuring from Dr. W. A. Walker four weeks’ nursing and hospital expenses of her son, of the value of $.104, by knowingly, falsely, and fraudulently representing to Dr. Walker, before the expenses began, that she and her husband were ready and prepared to pay them and would pay them as soon as they were determined.

Dpon the trial the following undisputed facts were shown: Dr. Walker, the prosecutor, was a practicing physician in Cairo, Georgia, and owned a private hospital located there. Mrs. Davis, the defendant, resided in Thomasville, Georgia. A minor son of Mrs. Davis, while in Cairo, was suddenly stricken with an acute and serious attack of appendicitis, and was sent by another physician to Dr. Walker’s hospital, and that physician notified Dr. Walker, about three o’clock one morning, that it was an emergency case that needed an immediate operation. Dr. Walker went to the hospital and was preparing to operate upon the patient, when Mrs. Davis, who had been telephoned of her son’s serious condition and who had hurried over from Thomasville, arrived at the hospital and was shown into the operating room. In addition to these undisputed facts, the evidence authorized a finding of the following facts: (1) That Mrs. Davis then told Dr. Walker, “Do everything j^ou possibly can for him, don’t leave a single thing undone. My husband and I are ready and prepared to pay the bill and will do so just as soon as the services are rendered.” (2) That Mrs. Davis’s representations as to her and her husband’s readiness and ability to pay were falsely and fraudulently made. (3) That after the operation was performed, the patient was nursed and care for in the hospital for two weeks and three days, at an expense of $77, and that the defendant and her husband failed and refused to pay any of this amount.

The evidence, however, did not authorize a finding that Dr. Walker was induced by these alleged false and fraudulent representations to give the two weeks and three days nursing and hospital expenses. He .himself testified: “ He [the son of the accused] had a serious case. Mrs. Davis told me that she and her husband were ready and prepared to pay the bill. Had she not told me this I would have gone ahead and operated on the boy.” It is true that Dr. Walker did not state that in the absence -of Mrs. Davis’s representations he would have given the two weeks and three days nursing and hospital expenses, but, as the operation was performed in his hospital and as the patient was admittedly in a very serious condition, it does not appear how the patient, after the operation, could have been removed from the hospital, without danger to his life, until he had been nursed back to health;* and it does not appear, from the evidence, that he could have been safely moved before the expiration of the two weeks and three days. Furthermore, Dr. Walker did not testify that he would not have given the two weeks and three days nursing and hospital expenses if Mrs. Davis had not made her alleged false and fraudulent representation. The burden was upon the State to show, among other things, that Dr. Walker, relying upon the truth of the alleged false and fraudulent representations, was thereby induced to part with the two weeks and three days nursing and hospital expenses (Goddard v. State, 2 Ga. App. 154, 58 S. E. 304; Meacham v. State, 7 Ga. App. 713, 68 S. E. 52), and we do not think the proof established, beyond a reasonable doubt, that the State had carried this burden.

It follows that the defendant’s conviction was not authorized by the evidence, and that the court erred in overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.