Cornell v. State

12 S.E.2d 378, 64 Ga. App. 202, 1940 Ga. App. LEXIS 157

• Court: Court of Appeals of Georgia
• Decided: December 5, 1940
• Docket: 28387.
• Status: Published

Opinions

MacIntyre, J.

W. A. Cornell was convicted of a felony under Code, § 5-9914, for that he “being a person engaged on his own account in the business of buying products sold by planters and commission merchants on cash sale, to wit, peaches, did then and there buy on sale from G. B. Hoyle, trading as J. H. Hoyle and Son, a planter, twelve hundred and seven (1207) field boxes of peaches, at fifty cents per box, for cash, and did then and there fail and refuse to pay for said peaches, and did dispose of the same without having paid therefor.” The defendant’s motion for new trial was overruled, and he excepted.

The Code, § 5-9914, provides: “Any person engaged, either on his own account or for others, in the business of buying cotton, corn, rice, crude turpentine, spirits turpentine, rosin, pitch, tar, or other products sold by planters and commission merchants on cash sale, who shall buy such articles on sale from a planter or commission merchant for cash, and shall fail or refuse to pay for, and shall make way with or dispose of the same before he shall have paid therefor, shall be imprisoned in the penitentiary for not less than one year, nor more than five years.” (Italics ours.) (Peaches are one of the products that come under the provisions of this section. Bank of Oglethorpe v. Brooks, 33 Ga. App. 84, 125 S. E. 600). The defendant’s punishment was fixed by the jury at from one to three years. The defendant contends that the transaction in question was a credit and not a cash transaction. The question presented is whether the transaction amounted to a cash or a credit sale.

Construing the evidence for the State most strongly in favor of upholding the verdict of guilty, it appears that G. B. Hoyle, the prosecutor, was engaged in the business of farming and peach growing during the year 1938; that he sold the defendant' 1207 boxes of peaches at 50 cents per box, and that the defendant was engaged in buying peaches for himself; that the peaches were delivered to the defendant under a contract between Hoyle and the defendant; that the defendant gave Hoyle a check or draft for the purchase-price of the peaches, and that this check or draft was never paid. Hoyle testified: “The peaches were sold to the defendant on a cash sale. Our agreement as to payment was that what I put up today he would pay for them the next morning. That was the agreement as to these particular peaches. We had a contract to that effect.” The peaches in question were delivered to the defendant on July 5, 1938, and the defendant gave Hoyle the check on July 6, 1938. On cross-examination, Hoyle testified: “He was to pay up every morning what we run the day before. I know the contract says he was to get the peaches one day and pay for them the next. That is the contract which you have and under and in that contract it says that he is to pay me each morning.” After the check was not paid the prosecutor went to Maryland, August 11, 1938, to see the defendant about the cheek, and told him it had not been paid and he had come to see him about getting the money. The defendant told Hoyle that he had sold the peaches and that if he ever got the money he would pay the check. “He did not explain why he had not paid it.” On the last day of October, 1938, Hoyle went down to Florida to see him again, but the check was still not paid. The present indictment was returned by the grand jury of Upson County on November 14, 1939. The defendant was arrested in Indiana.

The defendant, in his statement to the jury, in effect said that he had a contract with Hoyle for his peaches, and that he, at the instance of Hoyle, drew up the contract on a memorandum. “After .he started on his peaches sometimes I would be down at Reynolds until eight or nine o’clock at night, and I would call him and tell him that I would be a little late, and I would tell him to go ahead and load the car for me, or there would be a truck up there and to load that on the truck but if I was going to be too late getting [there] in time enough for the billing I would tell him to bill it for me to Atlanta, Georgia, or Cincinnati, or Potomac Yards, or some place like that. I would go out the next day and we would check up on how much he packed and how much he shipped out and I would give him a check.” He stated that he had an arrange ment with his bank at home; that he would sell a man a carload of peaches and “I would draw a draft for the amount purchased, the price of the ear, and I would deposit the draft in my bank and the bank would give me credit for it as a cash item. . . I had an accumulation of peaches, and on this particular check that I am indicted about Mr. Hoyle said I gave it to him on the 6th of July for peaches delivered on the 5th of July. Mr. Hoyle — I don’t know when he deposited the check, but on the 5th of July I had more than enough money in the bank to cover the check on the 5th of July . . and had those checks been presented they would have been taken care of. I gave the check in good faith. I didn’t try to steal the peaches. I had been coming up here too long. Had the check been presented the check would have been paid. . . Along about July 7th, . . I sold a carload of peaches to a man named Lancaster, who had an office here, on the strength of government inspection it showed it was H. S. No. 1. That particular car went to Cleveland, Ohio, and was turned down because it did not meet inspection. . . I had 14 ears of peaches that were rejected by people that I had sold them to on the major markets in the East and North. I had drawn drafts against the purchase-price of the cars, and my bank had given me credit for them.” After he closed his dealings with Hoyle he took his family to Knoxville, Tennessee, to stay with his wife’s family until the Maryland peach season opened two weeks later. He left his forwarding address, Burlington, Maryland, and “When I got there, there was a bunch of mail and telegrams about this trouble which was the first information I had that anything like this had happened. I immediately started sending telegrams and calling on the telephone to different places, trying to unscramble the affair, and it was practically hopeless.” He further stated that Mr. Hoyle came to see him in Maryland and that four or five days after Hoyle left he made about $297, and sent Hoyle $270 to apply on the check in question. (The State’s evidence showed that this was to cover another check, and not the one involved in the present transaction.) The remainder of the defendant’s statement concerned the events which followed in his effort to straighten out the present situation, and of his setbacks in business, which we think is not material to an understanding of this decision.

This is not one of that class of cases where the specific intent is an essential ingredient of the crime and the guilt of the accused depends upon the proof of the specific intent with which the act was committed, as for instance, in cases of assault with intent to murder (Wright v. State, 168 Ga. 690, 148 S. E. 731; Patterson v. State, 85 Ga. 131, 11 S. E. 620, 21 Am. St. R. 152), and in cases of cheating and swindling. Scott v. State, 46 Ga. App. 213 (167 S. E. 210); Moore v. State, 11 Ga. App. 813 (76. S. E. 368). But the crime charged in this ease comes under that class of criminal cases in which proof that the defendant intended to do the prohibited act is all that is necessary, for ignorance of the law is no excuse. If the accused did the act, the law presumes he knew it was criminal, and that he knew the natural and necessary consequences that would result. It might also be noted that this statute is to be differentiated from those statutes a violation of which is made penal by the “labor-contract act.” Under Code, § 5-9914, the law condemns and makes criminal the failure to pay only where the contract with the planter is for cash and superadded to the failure or refusal to pay is the criminal element that the purchaser makes away with or disposes of the planter’s property before he has paid therefor, and thus takes it out of the class of ordinary debts, for the failure to pay which there can be no imprisonment. Thus, it is unnecessary, in order to uphold the constitutionality of the Code section in question, to read into it a specific intent to defraud, and all that is necessary to be proved here is that the defendant did the act prohibited by the legislature. The instant case may be comparable to a case of larceny after trust delegated. Whitaker v. State, 9 Ga. App. 213, 217 (70 S. E. 990). “A crime or misdemeanor shall consist in a violation of a public law in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence.” Code, § 26-201. While criminal intent is a necessary element in the commission of the crime charged in this indictment, yet the criminal intent in such connection is simply the intent to do the act which the legislature-has prohibited. Mitchell v. State, 20 Ga. App. 778 (2) (93 S. E. 709). Where the cash is paid there is no occasion to invoke Code § 5-9914, under which the indictment here is drawn. The section is applicable only where the agreement to pay cash is not complied with by the buyer. If the sale was to be for cash, merely because the seller did not immediately receive the purchase-price- in actual money with the surrendering of the physical or derivative possession of the property, the statute could none the less be invoked even though it is expressly understood that the payment of the actual money shall not be delayed for any longer period of time thta is necessary in the ordinary and usual course of business (Skinner v. Hillis, supra), otherwise, it seems to us that it would be hard to imagine a case in which the provisions of this section of the Code would be applicable. Charleston & Western Carolina Ry. Co. v. Pope, 122 Ga. 577, 579 (50 S. E. 374); McCall v. Hunter, 8 Ga. App. 612 (70 S. E. 59).

In this case the State did not rely alone on the presumption that the sale was for cash in the absence of any agreement to the contrary, but the State relied on the fact that there was an express .agreement that the sale was for cash. Relative to what is a sale of farm produce for cash, Judge Russell, in the McCall ease, supra, 616, said “that a sale for cash is not restricted to those transactions in which the cash is to be paid upon the instant, or upon delivery •of the cotton [peaches], but the term ‘sale for cash’ includes all of those transactions in which the seller of the cotton [peaches], parts -with its possession upon the mutual agreement that the transaction is for a cash consideration, which is to be paid, not at a fixed and definite date agreed upon as one of the conditions precedent to the contract, but as soon as the purchaser may have been enabled, by such means as the seller will permit him to do, to take the necessary steps to produce the currency exactly requisite to close the transaction and complete the purchase.” We think the jury were .authorized to find under the evidence that the peaches were to be delivered on one day and the defendant, for his own convenience, was to be given during that day to check up the number of cars of peaches delivered to his agent or to himself in the ordinary and usual course of business, and, when he ascertained that the delivery was made and in what amount, he was to pay, on the next day, the actual cash, or give a check or draft, and thus delay payment for no “longer period of time than is necessary, in the ordinary .and usual course of business, to. reduce negotiable paper to actual eash,” or for “such time as may be necessary, and may be agreed upon to be necessary, to enable the purchaser [defendant] (when the seller wishes to afford that convenience) to make needed arrangements to procure the necessary cash.” McCall v. Hunter, supra. The jury were authorized to find that the seller was not agreeing to deliver the peaches irrespective of payment as in the ordinary case of a sale on credit. Benjamin’s Sales of Goods, 134.

The evidence authorized the verdict, and none of the special grounds discloses reversible error.

Judgment affirmed.

Broyles, C. J., concurs. Gardner, J., dissents.