Opinion
34801.
DECIDED NOVEMBER 4, 1953.
Cheating and swindling. Before Judge Wood. Fulton Superior Court. June 17, 1953.
Claude Hambrick, for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, Solicitor, C. O. Murphy, contra.
The indictment attempting to charge the offense of cheating and defrauding a corporation by deceitful means and artful practice under Code § 26-7410, showing in substance that the corporation had knowledge through its credit department of the salient facts constituting the acts and conduct of the defendant, which indictment charges that a sales representative of the corporation was deceived and that this resulted in the corporation being defrauded, but not charging that the corporation was deceived, is subject to demurrer, it being an essential element of the crime that the party defrauded was the one who was deceived.
DECIDED NOVEMBER 4, 1953.
The defendant was convicted under each of nine counts of an accusation charging her with cheating and swindling. Varying only in dates, amounts, and value of merchandise involved in the alleged crimes, the nine counts were substantially the same, to the following effect: "That . . . [the defendant] . . . with intent to cheat, swindle and defraud Rich's, Inc., did, by deceitful means and artful practices, wilfully, knowingly and fraudulently, use a charga-plate which had been issued to said accused by the credit department of said Rich's, Inc., as evidence of the fact that said accused had a charge account with Rich's, Inc., authorized by its credit department, in a sum not to exceed $60 in value, and was authorized to purchase articles of merchandise from the sales department of Rich's, Inc., not in excess of said amount, and have the purchase price therefor charged to said charge account for future payment, after said accused had already exhausted her credit with Rich's, Inc., as aforesaid, by charging and failing to pay for articles of merchandise purchased from Rich's, Inc., in excess of the amount so authorized, and after said charge account had been closed by Rich's, Inc., and notice thereof given to accused, and after said accused had been notified to return the charge-plate to Rich's, Inc., and to desist from using the same for the purpose of purchasing merchandise from the clerks and sales agents of Rich's, Inc., and having the sales price therefor charged to said account, and after said accused had falsely represented to Rich's, Inc., that a certain charga-plate originally issued to her for the purposes aforesaid had been lost and that a charga-plate issued to her in lieu thereof had been mailed by her to Rich's, Inc., when in truth and fact both of said charga-plates were in her possession, and did thereafter, to wit, on the 1st day of October 1952, in the county aforesaid, by deceitful means and artful practices, cheat and swindle and defraud Rich's, Inc., in the following manner, to wit: said accused, through the presentation of said charga-plate to . . . a clerk and sales agent of Rich's, Inc., in the sales department thereof, did cause said clerk and sales agent to deliver to said accused . . . [enumerated articles of merchandise] to be charged to accused on the charge account aforesaid, which said accused carried away without paying for the same and converted to her own use, to the loss and damage of Rich's, Inc., in the sum [of the amounts alleged in the indictment] . . . said clerk and sales agent then and there not knowing that said charge account had been closed and that said accused had not credit with Rich's, Inc., and was not entitled to use said charga-plate as evidence of her authority to have said articles of merchandise charged to said account, for the reasons aforesaid, and relying upon the accused's apparent right to use the same, was deceived thereby and as a result of said deceitful means and artful practices of said accused, was then and there induced to and did then and there deliver possession of said articles of merchandise to said accused who took them away and converted the same to her own uses, to the loss and damage of Rich's, Inc., as aforesaid, contrary to law."
General demurrers to each of the nine counts were all overruled, and upon her trial and conviction the defendant applied to the superior court for certiorari, assigning error on the overruling of her general demurrers and on several grounds in the nature of grounds of a motion for new trial. The superior court overruled the petition for certiorari, and the defendant has appealed to this court for a review.
It must be determined from the following italicized portions of the indictment whether it was subject to general demurrer: That the said Janie T. Walker did "knowingly and fraudulently use a charga-plate which had been issued to said accused by the credit department of said Rich's, Inc.," and "did cause said clerk and sales agent to deliver to said accused the following articles . . . said clerk and sales agent then and there not knowing that said charge account had been closed and that said accused had no credit with Rich's, Inc., and was not entitled to use said charga-plate . . . and relying upon the accused's apparent right to use the same, was deceived thereby . . . to the loss and damage of Rich's, Inc."
Code § 26-7410, referring to cheating and defrauding another by deceitful means and artful practice, is a penal statute and must be strictly construed. The elements necessary for conviction are well defined. Goddard v. State, 2 Ga. App. 154 (2) ( 58 S.E. 304). Among the essential elements of the crime which must be alleged are that the person defrauded was deceived, that he relied upon the fraudulent misrepresentations and was thereby induced to part with his property. Davis v. State, 27 Ga. App. 195 (3) ( 107 S.E. 883); Foss v. State, 15 Ga. App. 478(2) (83 S.E. 880). While it is not required that the person defrauded should have exercised diligence, or made any investigation which would have shown him the true state of the case ( Crawford v. State, 4 Ga. App. 789 (11), 62 S.E. 501), nevertheless one who knows all the facts cannot be deceived, because he cannot be presumed to rely upon a statement which, of his own knowledge, is untrue. 35 C.J.S. 663, § 22 and citations. Webster's New International Dictionary defines deceit as "an attempt to deceive or lead into error; any declaration, artifice or practice, which misleads another or causes him to believe what is false; a wily device; a trick; fraud." In Goddard v. State, supra, it was held that misstating the age of the horse did not constitute a false representation acted upon by the prosecutor, when the prosecutor at the time stated that he did not believe the age to be as stated, both persons having made an inspection of the animal. Thus, the false pretense is not penal until the crime has been completed by the prosecutor being led into believing it, to his injury.
The party alleged to be defrauded in this accusation is a corporation. Notice to a servant or officer of a corporation within the scope of his authority is, fundamentally, notice to the corporation itself. Code § 4-309; Holland v. McRae Oil c. Co., 134 Ga. 678 (6) ( 68 S.E. 555). As stated in Central of Ga. Ry. Co. v. Mobley, 6 Ga. App. 33 (4) ( 64 S.E. 300): "A corporation knows of the violation of its rules and acquiesces therein whenever the particular agent of the corporation, who is charged with the enforcement of the rule in question, knows of its violation and acquiesces therein." Therefore, it must be assumed here that the act of the credit department of Rich's, Inc., both in extending to and later in refusing credit to the defendant was the act of the corporation itself, from which it follows that the corporation, as such, had actual knowledge, on the several occasions set forth in the various counts of the accusation (which covered a period of several weeks), that the defendant did not have credit with it. This being so, it cannot be said that the corporation as such was misled into falsely believing that the defendant did have credit with it. The acts of extending and subsequently withholding credit were entirely within the discretion of the corporation, acting through its credit department, and the defendant's knowledge of its decisions could only come after they were effected and on notice from the corporation.
But it is argued that a crime is charged, in that an employee of the corporation was deceived and misled by the fraudulent presentation of the charge-plate into extending the credit of the corporation. This argument would be sound only if the employee had been the person defrauded, but this is not alleged. Further, it is not alleged that the corporation, as distinct from its employee, was in any way deceived. On this point, the accusation was fatally defective, and the general demurrer should have been sustained.
In this regard, the trend of authority, both in this State and elsewhere, is that, where a corporation is sought to be held in either a civil or criminal action, it cannot escape liability on the ground that the agent who actually performed the forbidden act on behalf of the corporation was entirely innocent, in that such agent lacked knowledge which was possessed by other agents of the corporation, or which is attributable to it as being a part of its documents and records. A company is chargeable with the composite knowledge acquired by its officers and agents acting within the scope of their duties. Sarna v. American Bosch Magneto Corp., 290 Mass. 340 ( 195 N.E. 328 (1)); Inland Freight Lines v. U.S., 191 Fed. 2d 313; Slater v. Mo. Edison Co. (Mo.App.), 245 S.W.2d 457. It follows therefore that the act of one servant or agent of a corporation which is the result of ignorance of the facts on the part of that individual does not serve the same purpose, in a legal sense, as ignorance on the part of the corporation, where the corporation, being a composite entity, has acquired knowledge of the facts from other sources.
The trial court erred in overruling the general demurrer to the indictment, and all that transpired thereafter was nugatory.
Under authority of the act of the General Assembly approved March 8, 1945 (Ga. L. 1945, p. 232) this case was decided by the court as a whole.
Judgment reversed. Sutton, C. J., Gardner, P. J., Felton, Carlisle, and Quillian, JJ., concur.