McElmurray v. State

MacIntyre, J. 1. Where, after giving to B a first mortgage on real estate, A, at the time of executing a second mortgage thereon to C, upon being interrogated as to the existence of any other lien upon the property, made misrepresentations as to the land being “clear of liens,” and it appears from the evidence that said misrepresentations ■were knowingly false, were made with intent to deceive and defraud, and did deceive and defraud, and that, relying upon the truth of the false statements, the party to whom they were made was thereby induced to pa'r.t with his property, the conviction of A for cheating and swindling will be upheld. Courson v. State, 42 Ga. App. 279 (155 S. E. 797); Phillips v. State, 40 Ga. App. 141 (149 S. E. 157); Griffin v. State, 3 Ga. App. 476 (3) (60 S. E. 277); Morse v. State, 9 Ga. App. 424 (71 S. E. 699). 2. Even if there were merit in the objection to admitting the certified copy of the first mortgage, the accused lost the benefit of his objection when he subsequently said, in his statement to the jury: “I didn’t tell him [the prosecutor] that there was no lien on the land. I told him that I would give him a second mortgage.” Thus he clearly admitted that there was a first mortgage on the land at the time he gave the second mortgage, as' these were the only two mortgages' mentioned or referred to in the ease. McCoy v. State, 124 Ga. 218 (3), 221 (52 S. E. 434) ; Dumas v. State, 62 Ga. 58 (3); Vinson v. State, 45 Ga. App. 219 (164 S. E. 208). 3. There was a sharp conflict between the defendant’s statement and the evidence for the State. The jury accepted the State’s version of the matter, and found the defendant guilty. The judge having approved the verdict, we can not say that he abused his discretion in overruling the motion for new trial. Judgment affirmed. Broyles, O. J., and Ghaerry, J., concur.