Berry v. State

23 S.E. 833, 97 Ga. 202

• Court: Supreme Court of Georgia
• Decided: July 29, 1895
• Status: Published

Opinion

Simmons, C. J.

1. It being essential to tbe legality of a conviction for cheating and swindling, alleged to have been accomplished in part by false and fraudulent representations, that such representations should both deceive and injure the person alleged to have been thereby defrauded, a request to charge to this effect, when authorized by the evidence, should be given.

2. The main representation alleged to have been falsely and fraudulently made, and by means of which the alleged cheating and swindling was effectuated, being in substance that the accused was the owner in his own right of certain land; and there being no evidence at all that he made any such representation, but very strong evidence to the contrary, the verdict of guilty was not supported by the evidence, and the motion for a new trial ought to have been sustained. Judgment reversed.

The jury found the defendant guilty. He moved for a new trial, on the grounds, that the verdict was contrary to law and evidence, and that the court refused to give the following instruction in charge: “If you should believe from the evidence that at the time the first waivers were made, Brannon & Wynn had notice that the defendant was renting the land upon which the tenant Ed. Perry lived, from Simons, and that the said tenant was subrenting from the defendant, then I charge you, if you believe the defendant was not landlord at the time of the execution of the last waivers, and you should believe that Brannon & Wynn got all of the cotton made by these tenants, except what Simons got as rent, then the defendant would not be guilty.”

The motion was overruled, and defendant excepted.

Miller & Miller, for plaintiff in error. Tol. 7. Grcmford, solicitor, contra.