Davis v. State

Court of Appeals of Georgia

Davis v. State

66 S.E. 960, 7 Ga. App. 332, 1910 Ga. App. LEXIS 276

CourtCourt of Appeals of Georgia

DecidedJanuary 21, 1910

Docket2290

StatusPublished

Cited by6 cases

This text of 66 S.E. 960 (Davis v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis v. State, 66 S.E. 960, 7 Ga. App. 332, 1910 Ga. App. LEXIS 276 (Ga. Ct. App. 1910).

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Opinion

Powell, J.

That the intention to defraud is an essential element in a prosecution for the sale of mortgaged property is too well [333]*333settled, by the express language of the code section creating the crime, as well as by the decisions of the court construing that section, to require any elaboration. The venue in such eases is in the county where the fraudulent sale takes place, and not in the county where the mortgage was executed. Cody v. State, 69 Ga. 743; Ham v. State, ante, 57 (66 S. E. 22). As to this feature of the case, we think that the indictment was sufficient (though -perhaps ambiguous), since there was no special demurrer; and, as it was proved that the defendant lived in the county of the prosecution and that the property was located there at the time the mortgage was given, and that he still lived there at the time he admitted he had sold it, the jury would have been authorized to find that the venue was sufficiently established, under the principle deducible from the decision in Johnson v. State, 62 Ga. 299, 301; however, the testimony on the subject was not conclusive, and the charge of the court, which was inconsistent with the law on the subject, tended to mislead the jury, and was materially erroneous as against the defendant. Since there will probably be another trial, we deem it proper to say that the exception that the judge did not charge the jury as to the degree of proof necessary where the evidence is circumstantial is apparently meritorious. The other exceptions in the record do not appear to be well taken.

Judgment reversed.

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Powell, J.

That the intention to defraud is an essential element in a prosecution for the sale of mortgaged property is too well [333]*333settled, by the express language of the code section creating the crime, as well as by the decisions of the court construing that section, to require any elaboration. The venue in such eases is in the county where the fraudulent sale takes place, and not in the county where the mortgage was executed. Cody v. State, 69 Ga. 743; Ham v. State, ante, 57 (66 S. E. 22). As to this feature of the case, we think that the indictment was sufficient (though -perhaps ambiguous), since there was no special demurrer; and, as it was proved that the defendant lived in the county of the prosecution and that the property was located there at the time the mortgage was given, and that he still lived there at the time he admitted he had sold it, the jury would have been authorized to find that the venue was sufficiently established, under the principle deducible from the decision in Johnson v. State, 62 Ga. 299, 301; however, the testimony on the subject was not conclusive, and the charge of the court, which was inconsistent with the law on the subject, tended to mislead the jury, and was materially erroneous as against the defendant. Since there will probably be another trial, we deem it proper to say that the exception that the judge did not charge the jury as to the degree of proof necessary where the evidence is circumstantial is apparently meritorious. The other exceptions in the record do not appear to be well taken.

Judgment reversed.

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66 S.E. 960, 7 Ga. App. 332, 1910 Ga. App. LEXIS 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-gactapp-1910.

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