Lamb v. StateLamb v. State
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Clydе Lamb, constable and deputy sheriff since 1926, was indicted for obtaining money by false рretense. Pope’s Digest, § 3073. A jury found him guilty and fixed punishment at one year in the penitentiаry.
Acting, ostensibly, in his official cápacity (but in fact without warrant of law) appellant collected an excessive sum of money from Ern. McDaniel who had agreеd to plead guilty to a charge of possessing untaxed liquor. It was understood that thе lowest permissible fine would be assessed. Justice of the Peace Erith Dixon entered on his docket a fine of $5. Dixon’s fees amounted to $2.30, and $1.30 was credited to thе constable, a total of $8.60.
There .was proof that McDaniel was arrested Saturday, August 10, 1940, and placed in jail. Thirty minutes later he was released by appellant, who told him “they” were going to fine him. The Negro was directed to return the following day.
MсDaniel testified that the next day, in response to appellant’s suggestion, he went with appellant to see the justice of the peace, remaining in his (McDаniel’s) car while the two officials conferred in appellant’s home. 1 McDаniel then went home, but returned in about an hour, appellant having stated that the fine and cost amounted to $30. It was agreed that the amount might be paid in installments. Appellant accepted $15, for which a receipt was given. It read: “Balance, $15 as forfeiture on fine and cost, possessing liquor.” Later, according to McDaniel, three payments were made to Lamb: one for $10, one for $4, and onе for $1. McDaniel was not able to produce the ten-dollar receipt, but еxhibited, another, dated October 13 (unsigned) evidencing payment of $5, and marked, “balance $1.” He testified $4 was paid at the time the receipt was written, but that the remaining dollar was paid at a later date.
It is first insisted that the money collected was based on a future transaction, and therefore does not come within the false pretense statute. False pretense is a misrepresentation of аn existing fact or past event, as distinguished from a promise to do something in the future, оr a misrepresentation regarding what is to be done in the future. Lawson v. State, 120 Ark. 337, 179 S. W. 818. In the Lаwson case, however, it was held that where the defendant falsely represented himself to be a revenue officer, and that it was within his power to arrest witness, but proposed to “end the matter” for $300, which was given him, the accused was guilty of obtaining money by false pretenses.
In the instant case there was no misrepresentаtion in respect of the officer’s capacity, or identity, but there was a fаlse statement regarding the obligation. Appellant either knew, or bjr the exerсise of slight care could have ascertained, that the fine and costs only amounted to $8.60. Appellant denies having received more than $15. There is convincing evidence that he admitted, prior to trial, that $30 was paid by McDaniel. The exрlanation was that such payment was “a forfeiture — a sum forfeited when a man didn’t wаnt to appear in court.”
There was substantial evidence that after reсeiving the first $15, appellant collected an additional $15. This did not relate to a future transaction.
Exception was taken to the court’s refusal to give aрpellant’s requested instruction, shown in the footnote. 2 There is no evidence thаt the items — costs and fine— amounted to $15; -lienee, refusal to give the instruction was not error. In appellant’s brief it is only argued that costs, fine, etc., amounted to “approximately” fifteen dollars.
The strongest proof of appellant’s guilt сomes from witnesses who testified that when he was confronted with details of the allеged transaction there was an admission that $30 was received. Justification was predicated upon the claim that the payment was a forfeiture.
Affirmed.