A motion for rehearing was made by the State, and granted; defendant made a motion to strike the motion. The writer is of the opinion that the State of Georgia has no legal right to file a motion and be heard as a party in any criminal case under Code § 24-3643 and under the principle announced in State of Georgia v. Jones, 7 Ga. 422, 425,427. And as to the same principle announced under State v.Lavinia, 25 Ga. 311; also Mayor c. of Macon v. Wood,109 Ga. 149 (34 S.E. 322); Cranston v. Augusta, 61 Ga. 572,579; State v. Thompson, 175 Ga. 189, 191 (165 S.E. 34). While this is true, the instant case is within the breast of the court and the court may, where the case is still before it, during the same term, even by its own motion, change or modify or even substitute a different opinion for *Page 249 the one rendered. It appears to me as immaterial what motivated the court to consider an opinion with a view of changing it. Therefore I dissent from the ruling that the State may be a proper party for making a motion for rehearing.
I think also that the court erred in overruling the general demurrers to the indictment. The allegations of either count do not purport to charge with reference to cheating and swindling any offense under Code §§ 26-7401 et seq., save Code § 26-7410, which provides: "Any person using any deceitful means or artful practice, other than those which are mentioned in part XII of this title, by which an individual, or a firm, or a corporation, or the public is defrauded and cheated, shall be punished as for a misdemeanor." It is under this section that the indictment is laid.
We then consider the necessary elements which an indictment must contain to charge an offense under that section. Notwithstanding the section characterizes that which is fraudulently used to cheat and swindle to be "any deceitful means or artful practice," it has been repeatedly held that the essential requisites under this section are: "(a) That the representations were made; (b) that they were knowingly and designedly false; (c) that they were made with intent to deceive and defraud; (d) that they did deceive and defraud; (e) that they related to an existing fact or past event; (f) that the party to whom the false statements were made, relying on their truth, was thereby induced to part with this property. It is incumbent upon the State to prove [charge] all of these elements of the offense, and if any one is lacking in the proof [charge] the offense is not made out." Goddard v. State,2 Ga. App. 154 (58 S.E. 304); Isaacs v. State, 7 Ga. App. 799,800 (68 S.E. 338); Hester v. State, 8 Ga. App. 380 (69 S.E. 31); Vaughan v. State, 36 Ga. App. 675 (137 S.E. 854); Fischer v. State, 46 Ga. App. 207 (167 S.E. 200);Diamond v. State, 52 Ga. App. 184 (182 S.E. 813); McCard v. State, 54 Ga. App. 339 (3) (187 S.E. 850). It will be observed that the authorities have juridically determined the expression "any deceitful means or artful practice" to be under this section "representations;" this, we think, is stare decisis. The character of the "representations," whether by word or act, or silence when duty requires action or speech, is not important save only as may be required in any particular case. But whatever the character, nothing will suffice less *Page 250 than that which is said or done, or omitted to be said or done when duty requires disclosure or action, must be the moving, efficient cause of the voluntary and the known parting with or delivery of the property or thing to the defendant, from the allegedly defrauded party.
Let us examine the charges as set out in the indictment, in the light of the foregoing requisites, to determine whether any offense was charged. Let us inquire, what acts or things were done by the defendant as "representations," knowingly and designedly, to deceive and defraud the City of Atlanta, and did deceive the city, because of which it parted with its water to its injury? What other necessary elements of the offense are present? The city was contractually obligated to deliver water through the meters to its customers or consumers, and according to its meters at agreed or standard rates. Secretly and stealthily the defendant changed the mechanism of the meter in question, whereby, unknown to the city, a greater quantity of water over any given period of time would pass through the meter than that which the readings of the meter would indicate. The acts of changing the mechanism of the meter were not made known or represented to the city (no representations that these acts themselves would cause the meter to register correctly), and the city was not caused to rely thereon for any purpose. The defendant made no representations that the meter was correctly "registering" the water passing through it. The city of its own business volition relied on the correctness of the readings without representations thereof by the defendant, and according to such readings voluntarily and contractually parted with the quantity or volume thereby indicated, and received pay from theconsumers accordingly. As to the excess flow, unregistered and unrecorded, and unknown to the city, it relied, in parting with this property, on no token, sign or representation from the defendant. But, on the other hand, it unwittingly and involuntarily parted with its possession. Title thereto did not pass. In legal contemplation, there must always be present and existent that which is knowingly offered to the defrauded party for his reliance as true, though fraudulent, and on which the defrauded party does rely, and knowingly and voluntarily parts with his property to his injury. When thus moved or actuated, and only then, it becomes, on a question of concealment of facts which should *Page 251 have been disclosed, important whether the concealment (in this case the changing of the mechanism of the meter) was so inter-related to those acts or things (representations) as to constitute it a part of the moving cause of the delivery and loss of the property. Otherwise stated, the acts alone of the changing of the mechanism of the meter did not constitute them "representations" or "deceitful means or artful practice," notwithstanding the readings as affected were currently taken by the city, of its own volition, as correct. We think this is true, whatever might be the thieving content of the acts. In discussing statutes, as the one now under review, Code § 26-7410, it was said in Morse v. State, 9 Ga. App. 424, 425 (71 S.E. 699): "It can not be doubted that these statutes originated in certain defects in the application of the laws against larceny, and from a failure of justice which frequently arose from the subtle distinction between larceny and fraud. Although property might be obtained from the possession of the owner by the grossest character of fraud, it would not constitute larceny if in fact it was obtained by the consent of the owner [italics ours]; and it was to cure this defect that these laws, defining cheating and swindling or obtaining property by false pretenses, were enacted."
It is too well established that the averments rather than the name by which they are called determine the offense charged. This has been so many times held and is so universally recognized that it would be useless to set out the many authorities which sustain it.
We come next to consider the more difficult question as to whether or not any crime under the laws of this State is alleged in the indictment. It is urged by the State that the allegations are sufficient under Code § 26-7410, which is generally known as the omnibus section of cheating and swindling, and which reads as follows: "Any person using any deceitful means or artful practice, other than those which are mentioned in Part XII of this Title, by which an individual, or a firm, or a corporation, or the public is defrauded and cheated, shall be punished as for a misdemeanor." The burden of this portion of the argument is that false representations are not necessary to be alleged to set out an offense under this section. Let us consider the correctness of this view. Counsel for the State seem to assume that we intended to *Page 252 hold that "representations" consist of spoken words. We did not so intend. There must be, under this section, some scheme or device or deceitful means, or artful practice, to defraud and cheat. Under every phase of cheating and swindling, as set out under Part XII of our Code and "stellionates" in Scot's and civil law there must be some deceitful means and artful practices whereby the person cheated and defrauded must voluntarily and knowingly part with the subject matter of the transaction which caused him damage. Under the indictment in the instant case, there is nowhere alleged that the City of Atlanta, through any agent representing it, voluntarily and knowingly parted with the subject matter of the transaction. Indeed, it is alleged that the city did not know it until several months afterwards. It is essential, in any form of cheating and swindling, under out law, in so far as I have been able to discover from any own individual research or other authorities furnished by the attorneys, that there must be a voluntary parting with knowledge of the property on the part of the owner of it. This is true, it matters not whether it be by false representations consisting of words, trick, sign, device, scheme, silence, or other artifice. Unless the parting with the property is voluntary with knowledge, it can not be cheating and swindling under any form, under our law. The illustration of obtaining possession of the ham, as set out in the majority opinion, is not at all applicable, as I see it, to the facts of the case at bar. In the illustration, the merchant voluntarily and knowingly parted with the title to the article. The cheat silently withheld the fact that he had changed the scales, thereby representing falsely an existing fact which he knew and which was unknown to the merchant. As heretofore stated, in the case at bar, while it is true the accused changed the meter, he did not thereby cause the city to knowingly and voluntarily part with the property. I see no similarity in the application.
Suppose the mechanism of the meter had been so manipulated that it registered no quantity of water passing through it, instead of registering half the quantity, would this be different from tapping the pipe line or reservoir above the meter? The difference in the failure to register any quantity and the registering of an incorrect quantity passing through the meter, it seems would be one of degree only. Such conduct may be likened to clipping the *Page 253 pasture wire so the cattle may pass through and be stolen. The principle would not be altered if only a portion and not all of the cattle could or did pass out of the pasture. See Clark v. Oklahoma, supra. See also Cox's Criminal Law Cases, Reg. v. White, 213.
But we are told that the allegations of the indictment set out a case of cheating and swindling under Code § 112-9901. This section denominates it a crime to buy or sell by false weights and measures, and, since the water in question passed through the meter which the defendant with other conspirators had manipulated so that the meter would not measure correctly but would register a less quantity of water than actually passed through it, it is contended that the allegations of the indictment set out an offense of buying water by a false measure, and therefore the allegations alleged this species of cheating and swindling. Again, in pursuing this line of argument, we run squarely into the proposition that the allegations of the indictment can not be cheating and swindling under this section. It will be readily reasoned that a sale is a contract. A contract is the meeting of minds on a subject matter. It involves, necessarily, the voluntary and knowingly trafficking in and delivery of the property. Were this not so it would not, under any definition of contract, be a sale. So it seems plain to the writer that this section is eliminated under the allegations of the indictment.
But it is contended that the allegations are sufficient to allege a crime as set out in Code § 26-5001. This section reads: "Any other offense against public justice not in this Title provided for shall be a misdemeanor." The Title to which reference is made is Part IX, "Crimes against public justice and official duty." The section refers to crimes of a kindred and similar nature as described in the Title above, and by no stretch of the imagination can it be said that the allegations of the indictment under consideration approach the subjects dealt with in that Title of our law.
We come next to consider whether or not the allegations of the indictment sufficiently aver the offense of simple larceny, as is contended by the State. To my mind this is the most difficult question presented. The essential element of simple larceny is trespass against possession, with intent to permanently deprive the owner of possession. This trespass may be completed in two ways: *Page 254 (1) by secretly and stealthily obtaining possession without knowledge of the owner; and (2) by fraudulently obtaining possession with the knowledge of the owner with intent at the time to steal the property. The present indictment partakes of both the essential of larceny and of cheating and swindling. It partakes of larceny in that it alleges, as the writer construes it, that the property was obtained involuntarily and without the knowledge of the owner. But all the other averments, the setting and background, partake of the offense of cheating and swindling. Unless we abrogate all the rules of required pleading in an indictment as it obtains to larceny, we can not hold that the indictment is sufficient in its allegations to set forth the offense of simple larceny as distinguished from cheating and swindling.
This court held in Lee v. State, supra, as follows: "Under the facts of this case, since the purchaser voluntarily delivered the property in the money to the accused, he could not be guilty of stealing the same from her, and therefore is not guilty of the offense with which he was charged and of which he was convicted; and the judge of the superior court erred in declining to sanction the petition for certiorari." And: "In the instant case the accused may have been guilty of cheating and swindling. As to this we are not called upon to decide, but since the purchaser voluntarily delivered the property in the money to the accused, he could not be guilty of stealing the same from her, and therefore is not guilty of the offense with which he was charged and of which he was convicted."
If one indicted for larceny can not be convicted if the facts proved make a case of cheating and swindling, it would seem that the converse is true; that where the averments are couched in language applicable only to cheating and swindling it can not be the basis for a conviction of larceny, although there be some elements of larceny also averred. *Page 255