
    6073.
    Fennell v. The State.
    Decided March 30, 1915.
    Indictment for cheating and swindling; from city court of Dublin — Judge Hicks. October 19, 1914.
    
      S. P. New, for plaintiff in error.
   Wade, J.

Where the vendor of a mule took from the vendee a purchase-money note in which title to the mule was retained in the vendor as security for the payment of the note, and he subsequently consented for the vendee to swap the mule to some other person, on the vendee’s promise to give him title to the property received for the mule, and thereafter the vendee swapped the mule for a horse, but failed to perform his promise, and instead executed a note purporting to reserve to the original vendor the title to a certain mule, the property of another, which mule was not represented to be, and the original vendor knew was not, the animal received in the swap, the facts did not authorize a conviction of cheating and swindling, alleged to have been committed by defrauding the original vendor out of the first-mentioned mule by representing that the second mule was the animal received in the swap.

(а) The promise and the failure to perform it would not authorize a conviction. “Raise representations, to be the basis of a prosecution for cheating and swindling, must relate either to the past or the present. No promise, or statement as to what may occur in the future, will serve as a basis for such a prosecution.” Dickerson v. State, 113 Ga. 1035 (39 S. E. 426), and citations.

(б) The fact that the title to the mule described in the second note was in a third person would not support the charge, made in the indictment, that the prosecutor was cheated and defrauded by a representation that this mule was the animal received by the defendant in the swap.

(c) The prosecutor could not have been cheated and defrauded out of the original mule by representations made at the time of the execution of the second note, for he had already parted with whatever interest he had in that mule. Judgment reversed.  