Lamar, J.
The evidence and the controlling question in these two cases being the same, they were argued together in this court.
1. The sources of information as to title to land are generally matters of record, and, since a prudent man would not ordinarily rely on oral statements in respect thereto, it was at one time doubted whether obtaining money under false pretenses could be a crime, ^here the fraudulent representation was as to an interest in land. It is, however, settled law in this- State that such an act is a violation of the Penal Code, § 670. Holton v. State, 109 Ga. 127. It was an interest in land that was conveyed to Chason, the prosecutor; and inasmuch as the lease contained no warranty, the law implied none. Civil Code, § 3613. If Chason could not recover damages for breach of warranty, it does not follow that Crawford and Laster could not be criminally prosecuted; for an inability to recover on the civil side of the court would rather aggravate the offense of obtaining money under false pretenses. But it is altogether probable that, on proper proof, the prosecutor might have been entitled to recover for deceit, under the Civil Code, § 3814. Pleadings in such a case, however, should set out explicitly the trick or device, and the means by which the silence operated to induce the prosecutor to part with his money.
2. Since silence may be deceitful means or artful practice (Jones v. State, 97 Ga. 430), it would have been better for the indictment to have made some allusion to the fact that silence was one of thé means by which the money was obtained. No issue, however, was raised as to the sufficiency of the indictment, and it was probably good, under the Penal Code, § 929. The case was presented to the jury more on the theory made by the evidence as to silence than on statements as to the ownership of the land, charged in the indictment as-the misrepresentation by which the prosecutor was defrauded; the evidence related more to the innocent representations in May, as to the number of acres, than to the silence in September, when the money was obtained. The jury were instructed that if Laster in good faith pointed out to Chason the boundaries of the land which he thought had been bargained to him by [251]*251Crawford, or if Crawford innocently made the statement in May as to the number of acres, yet if they stood silent at the time the lease was made in September and received the money, that was equivalent to a false representation made at the time that the money was paid; The indictment says nothing whatever about the quantity of the land, nor about how many acres it contained; nor was any boundary or acreage warranted. The case therefore depended largely on. the effect of statements made in May, not corrected at the time the money was obtained in September. Raster had bought from Crawford all the land described in the lease, and necessarily could not have known as much about the title as the latter. Crawford admits that, after the conversation in May, he learned that a part of the Harvey place belonged to Fort, and insisted that he thought it was well known that he had conceded Fort’s ownership of a part of the land leased, and supposed that for that reason Chasongave only $500 for the timber, instead of $752, first named as the price at which he would consent for the sale to be made. Raster also desired to avail himself of this defense; and we think this theory should have been submitted to the jury in both cases. The failure to do so in Raster’s case would entitle him to a new trial, because there was sworn evidence on which to base such a charge to the jury. It would have been eminently proper to submit that view in Crawford’s case; but, inasmuch as it has been held that the judge is not bound to submit a theory having no other basis than the statement of the defendant, a new trial would not necessarily be granted to Crawford because of the failure to charge thereon in his case.
3. The court charged the jury: “ For instance, if a man makes a representation that he owns a piece of land, several months before he sold it to a party, and believed he owned'it, and then after-wards, before he consummated thé sale, and taking the man’s money, he found that he did not own it, and did not correct it, it would be just the same as if he knew that he did not own it at the time that the representations were made. The guilt would be in his knowing it any time before he received the payment and he not correcting it.” This- was error, inasmuch as it omitted all reference to the question as to whether the defendants knew Chason was relying on the previous representations, and whether the silence was fraudulent and intended to deceive.
[252]*2524. According to the law applicable to cheating and swindling by obtaining money under false pretenses, the knowledge of the false statement on the part of the person making it is of the very essence of the offense; and a charge which ignores so material a feature would require a new trial, unless such error was waived by the defendant, or was otherwise cured by the court.
Both defendants requested the court to charge that if “ the defendant made representations that he believed to be true, and were afterwards proved untrue, you could not convict the defendant unless it appears beyond a reasonable doubt that the defendant knew his-representations to be untrue.” This was not given, and in a note the judge states that the necessity for knowledge of the representations being untrue was given in the general charge. There are-many decisions of this court which hold that a failure to give a. request is cured by covering the same point in the general charge. But where the error is sought to be cured in this way, it must appear that there was nothing elsewhere in the general charge which detracted from that portion which is relied on as a substitute for the special request. In this case we find that the jury were incidentally instructed that the defendant must have known that the representations were false; but at the same time the judge,, in making a synopsis of all the facts necessary for the State to-establish, omitted. therefrom any statement that the defendant must have known that the representations were untrue, and concluded by saying, “ if you find these facts, it would be your duty to convict.” I We think that the failure to charge as requested was-not cured by a general charge wherein, at one time, the jury was instructed that knowledge of the falseness of the representations was necessary, and, at another, instructed that it was their “ duty to convict” if certain facts were proved, omitting therefrom the requirement on the part of the prosecution to prove that Crawford knew that his statement was untrue. “ A specific charge which is legal and adjusted to a distinct matter in issue, . . and which •may materially aid the jury, should be given as requested, although in principle and in more general, and abstract terms it may be covered by other instructions given by the court. ” Metropolitan R. Co. v. Johnson, 90 Ga. 501 (5); Thompson v. Thompson, 70 Ga. 692 (2); East Tenn. R. Co. v. Smith, 91 Ga. 176; Belt v. State, 103 Ga. 12 (4); Snowden v. Waterman, 105 Ga. 385 (5); Roberts v. State, 114 Ga. 450.
[253]*2535. The defendant Crawford made his statement and referred to a plat which he then held in his hand.
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Lamar, J.
The evidence and the controlling question in these two cases being the same, they were argued together in this court.
1. The sources of information as to title to land are generally matters of record, and, since a prudent man would not ordinarily rely on oral statements in respect thereto, it was at one time doubted whether obtaining money under false pretenses could be a crime, ^here the fraudulent representation was as to an interest in land. It is, however, settled law in this- State that such an act is a violation of the Penal Code, § 670. Holton v. State, 109 Ga. 127. It was an interest in land that was conveyed to Chason, the prosecutor; and inasmuch as the lease contained no warranty, the law implied none. Civil Code, § 3613. If Chason could not recover damages for breach of warranty, it does not follow that Crawford and Laster could not be criminally prosecuted; for an inability to recover on the civil side of the court would rather aggravate the offense of obtaining money under false pretenses. But it is altogether probable that, on proper proof, the prosecutor might have been entitled to recover for deceit, under the Civil Code, § 3814. Pleadings in such a case, however, should set out explicitly the trick or device, and the means by which the silence operated to induce the prosecutor to part with his money.
2. Since silence may be deceitful means or artful practice (Jones v. State, 97 Ga. 430), it would have been better for the indictment to have made some allusion to the fact that silence was one of thé means by which the money was obtained. No issue, however, was raised as to the sufficiency of the indictment, and it was probably good, under the Penal Code, § 929. The case was presented to the jury more on the theory made by the evidence as to silence than on statements as to the ownership of the land, charged in the indictment as-the misrepresentation by which the prosecutor was defrauded; the evidence related more to the innocent representations in May, as to the number of acres, than to the silence in September, when the money was obtained. The jury were instructed that if Laster in good faith pointed out to Chason the boundaries of the land which he thought had been bargained to him by [251]*251Crawford, or if Crawford innocently made the statement in May as to the number of acres, yet if they stood silent at the time the lease was made in September and received the money, that was equivalent to a false representation made at the time that the money was paid; The indictment says nothing whatever about the quantity of the land, nor about how many acres it contained; nor was any boundary or acreage warranted. The case therefore depended largely on. the effect of statements made in May, not corrected at the time the money was obtained in September. Raster had bought from Crawford all the land described in the lease, and necessarily could not have known as much about the title as the latter. Crawford admits that, after the conversation in May, he learned that a part of the Harvey place belonged to Fort, and insisted that he thought it was well known that he had conceded Fort’s ownership of a part of the land leased, and supposed that for that reason Chasongave only $500 for the timber, instead of $752, first named as the price at which he would consent for the sale to be made. Raster also desired to avail himself of this defense; and we think this theory should have been submitted to the jury in both cases. The failure to do so in Raster’s case would entitle him to a new trial, because there was sworn evidence on which to base such a charge to the jury. It would have been eminently proper to submit that view in Crawford’s case; but, inasmuch as it has been held that the judge is not bound to submit a theory having no other basis than the statement of the defendant, a new trial would not necessarily be granted to Crawford because of the failure to charge thereon in his case.
3. The court charged the jury: “ For instance, if a man makes a representation that he owns a piece of land, several months before he sold it to a party, and believed he owned'it, and then after-wards, before he consummated thé sale, and taking the man’s money, he found that he did not own it, and did not correct it, it would be just the same as if he knew that he did not own it at the time that the representations were made. The guilt would be in his knowing it any time before he received the payment and he not correcting it.” This- was error, inasmuch as it omitted all reference to the question as to whether the defendants knew Chason was relying on the previous representations, and whether the silence was fraudulent and intended to deceive.
[252]*2524. According to the law applicable to cheating and swindling by obtaining money under false pretenses, the knowledge of the false statement on the part of the person making it is of the very essence of the offense; and a charge which ignores so material a feature would require a new trial, unless such error was waived by the defendant, or was otherwise cured by the court.
Both defendants requested the court to charge that if “ the defendant made representations that he believed to be true, and were afterwards proved untrue, you could not convict the defendant unless it appears beyond a reasonable doubt that the defendant knew his-representations to be untrue.” This was not given, and in a note the judge states that the necessity for knowledge of the representations being untrue was given in the general charge. There are-many decisions of this court which hold that a failure to give a. request is cured by covering the same point in the general charge. But where the error is sought to be cured in this way, it must appear that there was nothing elsewhere in the general charge which detracted from that portion which is relied on as a substitute for the special request. In this case we find that the jury were incidentally instructed that the defendant must have known that the representations were false; but at the same time the judge,, in making a synopsis of all the facts necessary for the State to-establish, omitted. therefrom any statement that the defendant must have known that the representations were untrue, and concluded by saying, “ if you find these facts, it would be your duty to convict.” I We think that the failure to charge as requested was-not cured by a general charge wherein, at one time, the jury was instructed that knowledge of the falseness of the representations was necessary, and, at another, instructed that it was their “ duty to convict” if certain facts were proved, omitting therefrom the requirement on the part of the prosecution to prove that Crawford knew that his statement was untrue. “ A specific charge which is legal and adjusted to a distinct matter in issue, . . and which •may materially aid the jury, should be given as requested, although in principle and in more general, and abstract terms it may be covered by other instructions given by the court. ” Metropolitan R. Co. v. Johnson, 90 Ga. 501 (5); Thompson v. Thompson, 70 Ga. 692 (2); East Tenn. R. Co. v. Smith, 91 Ga. 176; Belt v. State, 103 Ga. 12 (4); Snowden v. Waterman, 105 Ga. 385 (5); Roberts v. State, 114 Ga. 450.
[253]*2535. The defendant Crawford made his statement and referred to a plat which he then held in his hand. In argument before the jury his counsel sought to use this plat by way of illustration, and ■for the purpose of explaining his contention. This the court prohibited. While the defendant’s statement is not evidence, it is the nearest approach to evidence which the law will allow him to make. He can not, for the purpose of obtaining the conclusion, indirectly introduce that which is technically evidence; he can not, by making a diagram while on the stand, give it the same position in the case as other plats which have been regularly proved, and which the jury would be allowed to take to their room for inspection, along with other documentary evidence. But if, while on the stand, he should, as is so often done, point to various parts of the room, and thereby illustrate the relative position of parties, or the relative course of lines, or thus roughly describe the boundary of land, his counsel would unquestionably have the right in his argument to the jury to repeat these statements, and to point to the lines in the room indicated by the previous statement of the defendant. So, too, if, because of the complication of the lines and positions, the defendant, while on the stand, found it clearer to make a rough drawing than to attempt an explanation solely by word of mouth, this drawing could be referred to in argument. The plat or drawing was no more evidence than was the statement of the defendant, but it was as much so, and his counsel would have as much right to use the one as the language of the other. And if, instead of making a drawing itself, the defendant should use a drawing already made, to assist in illustrating his statement and making clear to the jury what he means, his counsel would have the same right to use it in his argument. But the correctness of such diagrams and plats not being vouched for by sworn testimony, and the same not being proved by the oath of a witness, and not having been introduced in evidence, they could not be sent out with the jury along with the other documentary evidence.
6. In his charge the court said, “Look to the evidence to see whether Chason was deceived at the time he paid the money in September,” and again, “If you believe from the evidence that the defendant, at the time he showed the land and timber and represented that the land belonged to Mr. Crawford, did not know any better,” etc., and again, “ It must appear that defendant knew, be[254]*254fore be consummated the trade and received the money, that Crawford did not own the land.” In these sentences the court expressed an opinion that money had been paid in September, that the defendant showed the land and timber and represented that the land belonged to Crawford, and that defendant “ consummated the trade and received the money.” The Civil Code, § 4334, requires a new trial. Judgment reversed.
By five Justices.