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Theft by deception. Whitfield Superior Court. Before Judge Vining.
STOLZ, Judge.
1. The obligation to install carpeting, being part of one inseparable agreement along with its sale, constituted "services" within the purview of Code Ann. 26-1803 (e).
2. The appellant cannot avoid his conviction because a portion of the representations which he made may not have been criminal, where they were made in connection with other representations which were found by the jury to have been criminal.
3. Nor would the fact that the representations were made in the capacity of agent he an excuse, absent evidence of coercion.
4. The evidence authorized the conviction of theft by deception.
The defendant was convicted of the offense of theft by deception, under the provisions of Code Ann. 26-1803 (e) (Ga. L. 1968, pp. 1249, 1290), by promising William J. Doyle, on November 7, 1970, performance of the services of delivery and installation of carpeting, which the defendant did not intend to perform and which he knew would not he performed.
Evidence was adduced at the trial to the following effect: Prior to July 1970, the defendant was operating a retail carpet business in Dalton under the name Castle Carpet Corner, and James McMillan was employed as a salesman there by the defendant or his wife. The defendant taught McMillan how to sell carpet. The defendant incurred considerable unsettled liabilities for carpet he had not delivered and his credit became impaired by his developing reputation as a "carpet thief," caused by customers' complaints. in July 1970, after being informed by the defendant that it was for sale, McMillan purchased White Plains Carpet, Inc., another retail carpet business, after considerable consultation with the defendant, in whose apartment and with whose advice and approval he completed the negotiations for the purchase, which negotiations had commenced in the White Plains and Castle Carpet Corner buildings. After operating White Plains for a month or so at two different locations, McMillan, after being approached by the defendant and his wife, bought Castle Carpet Corner from the defendant, assumed that business's liabilities and obligations, and moved his White Plains operation into the Castle Carpet Corner building. A customer testified that when he went to the building formerly occupied by Castle Carpet Corner on October 24, 1970, the defendant, who was the only one there on the sales floor except McMillan at that time, assured him that it was still "as was," or Castle Carpet Corner, but that after that day it was White Plains Carpet. At that time the sign on the building had been changed from "Castle Carpet Corner" to "White Plains Carpet." In September 1970, the defendant, his wife, and a Pepper Roberts met with a Chamber of Commerce official with regard to clearing up a customer complaint arising out of non-delivery of carpeting and the defendant said that he would return to clear up some five or more remaining complaints, but never did so. When one customer, Mr. Rape, asked the defendant if he wanted his address on his order form, the defendant told him no, that he could give it to the carpet layers when they called. Some customers who had not obtained delivery of their purchases from the defendant, tried unsuccessfully several times to contact him by telephone. A check, refunding customer Conroy for undelivered carpeting, was returned to the customer because of insufficient funds. After the change in ownership and name of Castle Carpet Corner, the defendant continued to act as a salesman for the new business periodically, as he had for his prior business and as he was doing when he sold the carpet to Messrs. Rape and Doyle, on October 24 and November 7, 1970, respectively. McMillan testified that these sales were authorized by him and that the proceeds went to the business. Most of the orders written by the defendant, including Mr. Doyle's, showed that the sale price included
delivery and installation. Doyle's carpet was never delivered or installed. On December 8, 1970, the day after McMillan had added by binder, as loss payees on his business fire insurance policy, sellers of carpet he had purchased, the building and its contents burned completely. Only a few rolls of carpeting were there at the time of the fire, which destroyed all of the records, and, at the time of the trial, McMillan had not been indemnified for the loss to his business, the purchase price of which business he had not then paid. Prior to the issuance of said insurance, his insurer had made inquiry of McMillan to determine whether or not the defendant had any interest in the business. After the fire, McMillan contacted customers with undelivered orders, trying to get them to delay settling their claims, but he was hampered in his efforts by being confined to several jails, under indictment for charges concerning the transactions involving the business. He was confined for two to three weeks in the same jail cell as the defendant, who was tried by a federal district court for larceny of carpets. At least sixteen customers' claims had not been settled as of the time of the trial, including Mr. Doyle's.
The appeal is from the overruling of the defendant's motions for a directed verdict, judgment notwithstanding the verdict, and a new trial on the general grounds.
1. Code Ann. 26-1803, for the violation of which the defendant was convicted, provides as follows: "A person commits theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of said property. A person deceives if he intentionally: . . . (e) Promises performance of services which he does not intend to perform or knows will not be performed. Evidence of failure to perform standing alone shall not be sufficient to authorize a conviction under this subsection. 'Deceitful means' and 'artful practice' do not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons In the group addressed." The appellant contends that the promise upon which his indictment was predicated was for the delivery of carpeting, which was not "services" within the purview of 26-1803 (e), and that it related to the future, citing Edge v. State, 114 Ga. 113, 114 (39 SE 889) and cit. for the proposition that "false representations acted on by another, in consequence of which he was cheated and defrauded, must, to be the basis of a prosecution for cheating and swindling, relate either to the present or to the past, and that a promise relating to the future cannot be the basis of a prosecution for this offense." We do not agree. As to the first contention, the evidence showed that the agreement to sell and the obligation to in-stall, which is a service, were parts of one inseparable agreement with the victim, Doyle. As to the second contention, the indictment was based upon subsection (e), relating to promises of future performance of services, not subsection (a), which carries over the former law as to cheating and swindling into the new Criminal Code, providing that "A person deceives if he intentionally: (a) Creates or confirms another's impression of an existing fact or past event which is false and which the accused knows or believes to be false."
2. The appellant cannot avoid his conviction because a portion of the representations which he made may not have been criminal, where they were made in connection with other representations which were found by the jury to have been criminal. Suggs v. State, 69 Ga. App. 383, 388 (25 SE2d 532) and cit.; Smith v. State, 116 Ga. 587 (1) (42 SE 766).
3. Nor could the appellant be exonerated by a finding that he acted as the agent of McMillan and/or the corporation, White Plains Carpet, Inc., absent evidence that he was acting under coercion upon the commands of his superior. Freeman v. State, 112 Ga. App. 307 (1a) (145 SE2d 44); Thompson v. State, 85 Ga. App. 298 (1) (69 SE2d 206).
4. The evidence summarized in the statement of facts hereinabove was sufficient to authorize the finding that there was a conspiracy between the defendant and McMillan to commit theft by deception by promising the installation of carpeting with no intention of performing these services or with the knowledge that they would not be performed, and that the defendant, whether as an agent of McMillan and/or the corporation or as a principal, committed such acts as constituted violation of Code Ann. 26-1803 (e). The appellant contends that the conviction rests solely upon circumstantial evidence which does not exclude every reasonable hypothesis save that of his guilt, being consistent with "direct, uncontradicted, reasonable and unimpeached testimony" explaining his actions, citing Pullen v. State, 36 Ga. App. 600 (137 SE 574); City of Summerville v. Sellers, 94 Ga. App. 152, 158 (94 SE2d 69); and Frazier v. Ga. R. & Bkg. Co., 108 Ga. 807 (1) (33 SE 996). Whatever inconsistent or contradictory testimony there was in this case, however, consisted mostly of that of the two parties directly implicated in the transactions involved, hence seriously impairing their credibility. As pointed out in the Sellers case, supra (3), cited by the appellant, "[w]here inconsistent or contradictory, the relative weight of direct testimony and circumstantial evidence is determined by the jury."
It follows that the court did not err in overruling the defendant's motions for a directed verdict, judgment n.o.v., and a new trial.
Judgment affirmed. Bell, C. J., and Evans, J., concur.
Robert B. Adams, District Attorney, for appellee.
E. Crawford McDonald, for appellant.
ARGUED MAY 2, 1972 -- DECIDED MAY 23, 1972.
Friday May 22 14:32 EDT

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