
    28802.
    BIRD v. THE STATE.
    Decided May 6, 1941.
    
      Irwin R. Kimzey, Kirkland & Kirkland, for plaintiff in error.
    
      G. Fred Kelley, solicitor-general, John E. Frankum, contra.
   Broyles, C. J.

The accused was charged with cheating and defrauding J. S. Wells, in that with intent to deceive and defraud said Wells he represented to Wells, that thirteen shoats had been double-treated with cholera serum; that Wells, relying upon said representation, bought the shoats; that the representation was false, the shoats not having been so treated; and that all the animals died from cholera within three weeks after their purchase. On the trial Wells testified, that the defendant made to him the above-stated representation; that, relying on the truth of the representation, he bought the shoats; and that all of them died from cholera within three weeks after their purchase. However, there was no evidence showing that the representation was false. Wells testified : “I wouldn’t swear that these shoats had not been treated or double-treated.” And there was no other evidence, direct or circumstantial, which authorized the jury to find, beyond a reasonable doubt, that the shoats had not been “double-treated with cholera serum.” It is well settled that in a case of this kind one essential element of the crime is that the representation was “knowingly and designedly false.” Goddard v. State, 2 Ga. App. 154 (58 S. E. 304). This essential element of the offense, although charged in the indictment, not having been proved by the evidence, the defendant’s conviction was unauthorized; and the denial of a new trial was error.

Judgment reversed.

MacIntyre and Gardner, JJ., concur.  