State v. Dozier

The statute imposing the punishment of swindling, prescribes fine and imprisonment, and the restitution of the property swindled. Henry B, Thompson, the person swindled Was offered asa witness. Objection was tendered to his competency, by defendant’s counsel, on the ground that he would be a witness to support his own interests as much as if an ac-lion of deceit to recover damages resulting from a fraud prac-tised upon him. In reply, the penal code, page 373 was cited, which renders the party injured a competent witness in a variety of instances, and among them cases where his property had been injured by fraud. In this case, the defendant had injured the witness to the extent of the value of the property of which he was swindled, which was effected by representing himself the owner of a tract of land, that he had previous-iy sold and conveyed to another person ; and by means of such false representations, induced the witness to purchase, and pay him for the said tract of land. The defendant acknowledged to the witness, after the payment of the consideration, that he had previously sold and conveyed the said land to another person. The execution of the deed to the witness, was proven by a subscribing witness to the deed. Counsel for the State here closed the testimony ; when defendant’s counsel moved to have a nolle prosequi entered for defect of proof, because until an action of ejectment had been brought by the prosecutor, and the validity of the former deed had been established at law, the defendant could not be convicted, for peradventure the prior deed might be defective, and void in law, and might not pass the fee, in which case no swindling liad been practised. The motion was overruled by the court.