1. In a prosecution under Code 5-9914, whether a sale is for cash is determined by the intention of the parties from the agreement, understanding, or circumstances connected with the transaction; and a charge or rule that it is a cash sale "where it is expressly understood that the payment of actual money shall not be delayed for any longer period of time than is necessary, in the ordinary and usual course of business," is too indefinite to apply in a criminal case.
2. The exception to the ruling on the charge of the court as to fixing the punishment is without merit.
These cases are here by writ of certiorari from the Court of Appeals. Troup v. State, 85 Ga. App. 138
(68 S. E. 2d, 195).
There were three indictments, covering a sale of cattle and hogs on March 21, 28, and April 4, 1950. All three cases were tried together, and a verdict of guilty was returned on each.
(After stating the foregoing facts.) The petition for certiorari makes two assignments of error:
1. Error is assigned on the ruling by the Court of Appeals following a charge of the trial judge as to what constitutes a cash sale under Code 5-9914, as follows: "The term 'on sale . . . for cash' as stated in Code 5-9914, which makes it penal to fail or refuse to pay for agricultural products, 'is not confined to sales where the payment of actual money is to be made immediately, but includes all sales where it is expressly understood that the payment of actual money shall not be delayed for any longer period of time than is necessary, in the ordinary and usual course of business.' " It is insisted that such rule is too vague and indefinite to be applicable to criminal cases.
a different manner of buying and selling the various articles covered by this section. Under such a rule there could be no uniformity in the enforcement of this statute. Its application would result in the determination of a person's guilt or innocence in accordance with the custom in the particular community in which he is on trial, with the further indefinite question to be passed on by the jury as to the time element between the delivery and the date when payment is due. Furthermore, the "usual course of business" in some particular locality might be entirely different from that existing generally in the industry throughout other localities. 25 C.J.S. 82, 9. And in the trial of a criminal case there would be no method by which the jury could determine whether the "usual course of business" referred to the custom in the particular locality or that existing generally elsewhere. Accordingly, the exception to the foregoing rule announced by the Court of Appeals is well taken.
The cases of McCall v. Hunter, 8 Ga. App. 612 (2), (70 S. E. 59), and Skinner v. Hillis, 25 Ga. App. 711 (2b) (104 S. E. 508), cited in the opinion of the Court of Appeals were civil cases involving title. The other case, Cornell v. State, 64 Ga. App. 202 (12 S. E. 2d, 378), was a criminal case under the Code section here involved. One of the three Judges dissented. In the majority opinion it was there said, as in the case under review, "that the payment of actual money shall not be delayed for any longer period of time than is necessary, in the ordinary and usual course of business." Whether such ruling was essential to an affirmance of the case, or whether the case could have been affirmed on other grounds, need not here be determined, but suffice it to say such ruling should not have been made in the Cornell case, nor followed in the instant case.
Harley, 117 Ga. 483, 488 (43 S. E. 765); Hill v. Butler, Stevens & Co., 8 Ga. App. 669, 672 (70 S. E. 34). While the rule was applied in civil cases, there is no reason why it should not be applicable to criminal cases, and provide uniformity to prosecutions under the Code section here involved.
2. The second exception relates to the charge of the court. The judge charged the jury that, if they found the accused guilty, they would have the right to recommend that he be punished as for a misdemeanor, and that, if they recommended punishment as for a misdemeanor, then the court would impose misdemeanor punishment. After the jury retired they were brought back and the following charge was given: "Gentlemen, I believe I failed to charge you in the event that you find the defendant guilty and recommend that he be punished as for a misdemeanor, that a misdemeanor punishment would be the punishment he would receive, unless the court saw fit to refuse to accept your recommendation. The court would have the right, in the event you recommended in these cases, or either of these cases, that the defendant be punished as for a misdemeanor--the court would have the right in the court's discretion to refuse to accept your recommendation. If the court should refuse to accept your recommendation for a misdemeanor punishment, then the period of time or years set out in your verdict would be the sentence that the defendant would receive."
This is not a case where an incorrect charge is given and subsequently a correct charge given, where the jury is expected to select one to the exclusion of the other, as in Bryant v. State, 191 Ga. 686 (13 S. E. 2d,. 820), and citations. When the jury were recalled, the instruction given them corrected the omission in the charge and fully explained the right of the judge in his discretion to disregard a recommendation for misdemeanor punishment. This was not error, and the Court of Appeals did not err in so holding.