
    45355.
    SMITH v. THE STATE.
   Hall, Presiding Judge.

Defendant appeals from his conviction for violating Code § 5-9914 (failure to pay for agricultural products) and from the denial of his motion in arrest of judgment.

Defendant was a retail merchant in Paulding County. The prosecutor is a wholesale grain and seed company located in Morgan County. In early May of 1966, defendant placed an order with prosecutor for 12,000 pounds of hulled Burmuda grass seed. The written order did not specify terms. The seed was delivered directly to defendant’s customer in Cobb County on May 13. Defendant cashed a check from the customer on August 2, which was dated June 30, in full payment for the seed. Defendant did not pay prosecutor and sometime thereafter went into bankruptcy. At the trial, a witness for prosecutor testified that they had been doing business with defendant on an open account basis for 10-12 years, but because of the size of this transaction, the agreement was that defendant would pay prosecutor "when he collected for the seed from Cobb County.”

Assuming without deciding that venue was proper and that Bermuda grass seed is an agricultural product within the meaning of Code §5-9914, the State has still failed to proved a necessary element of this crime, i.e., a cash sale. Garmon v. State, 219 Ga. 575 (134 SE2d 796). The prosecutor’s own testimony showed that credit was expressly extended to defendant from the time delivery was made until payment was received from the ultimate customer. The transaction was clearly outside the purview of Code § 5-9914, and the trial court erred in denying defendant’s motion in arrest of judgment.

Argued June 8, 1970

Decided June 26, 1970.

William V. Hall, Sr., for appellant.

Judgment reversed.

Deen and Evans, JJ, concur.  