Pippin v. State, No. 21728

No. 21728 | Miss. | Mar 15, 1921

Ethridge, J.,

delivered the opinion of the court.

The appellant was indicted for wilfully, unlawfully, and feloniously designing then and there to cheat and defraud E. H. Rempe of his moneys, goods, wares, merchandise, and property by false pretenses, and by pretending to the said E. H. Rempe that the appellant, J. H. Pippin, then and there was the owner of certain mules described in the indictment, and by executing a deed of trust upon such mules claimed then to be in his possession, and did secure from the said Rempe seven hundred fifty dollars; it being alleged that the appellant did not then and there own said mules or any of them, and that he had no title to the same at the time he made said false representations, and which facts he well knew.

The proof in the case showed that one Spitchley had a contract with F. Rempe and Son for certain logging operations, and that Spitchley made a contract with the appellant to take over the said contract, agreeing to pay the appellant one hundred fifty dollars above the amount which Rempe ancl Son would pay Spitchley. This contract was approved by P. Rempe and Son on condition that the-appellant would buy a certain truck, for which Rempe and Son was to advance seven hundred fifty dollars, which truck was in Jackson, Miss., and owned by a firm or concern' there. When the parties went to an attorney to have the papers drawn, the attorney raised the point that the deed of trust would not bind the property because it was not situated in Copiah county. Thereupon Mr. Pippin stated that a certain party would vouch for him, and that he had six mules in Copiah county Avhich he would place in the deed of trust. Thereupon the deed of trust Avas drawn, describing the truck and the mules. The deed of trust so given Avas in favor of P. Rempe and Son, described as party of .the third part, and, on the execution of this deed of trust a cashier’s check was drawn on the Merchants’ and Planters’ Bank of Házlehurst, Miss., providing: “Pay to the order of Rempe and Son, seven hundred fifty dollars. [Signed] H. R. Ellis, Cashier.” On the back of this check were the following indorsements: “Rempe and Son,” “Pay to the order of J. H. Pippin. Rempe and Son,” and “J. H. Pippin,” and stamped “Paid.”

The state introduced E. H. Rempe, who testified that the firm of P. Rempe and Son was composed of himself and brother; that it was an old firm name formerly used by the father of E. H. Rempe. The defendant requested a peremptory instruction at the close of the state’s ca:se, which was refused. The defendant denied knowledge that the mules were contained in the deed,.of trust, and admitted that he owned no such mules. The state was given one instruction, Avhich reads as follows:

“The-court charges you for the state: That if you believe from the evidence beyond all reasonable doubt that the defendant represented that he owned six mules on which he gave the trust deed in evidence to secure a debt to Rempe and Son, and thereby, by means of such representations "and trust deed, he obtained from Rempe the sum of seven hundred fifty dollars in money, and if you further believe from the evidence, beyond all reasonable doubt, that he did not own the six mules embraced in. said trust deed when said trust deed was executed, then he is guilty of obtaining said money under false pretenses, and you should so find him guilty.” ■

The principal assignment of error relied on by the appellant is that there'is a fatal variance between the indictment and the proof, and that the court erred in not sustaining-defendant’s motion for a peremptory instruction at the close of the state’s testimony. He'also complains of the above instruction given for the state.

It will be noted that the indictment charges that the false pretense was made to E. H. Rempe, and that the money was obtained from E. H. Rempe, and that the money belonged to E. H. Rempe; while the proof shows that the money was obtained from P. Rempe & Son, a partnership composed of E. H. Rempe and his brother, whose given name is not disclosed in the record.

This court has. decided that the name of the party defrauded must be alleged and proof must sustain the al-' legation. State v. Tatum, 96 Miss. 430, 50 So. 490" court="Miss." date_filed="1910-03-15" href="https://app.midpage.ai/document/state-v-tatum-7990555?utm_source=webapp" opinion_id="7990555">50 So. 490; Hampton v. State, 99 Miss. 176" court="Miss." date_filed="1911-03-15" href="https://app.midpage.ai/document/hampton-v-state-7990884?utm_source=webapp" opinion_id="7990884">99 Miss. 176, 54 So. 722; McAlpin v. State, 123 Miss. 528" court="Miss." date_filed="1920-10-15" href="https://app.midpage.ai/document/mcalpin-v-state-7993743?utm_source=webapp" opinion_id="7993743">123 Miss. 528, 86 So. 339" court="Miss." date_filed="1920-10-15" href="https://app.midpage.ai/document/king-v-state-7993744?utm_source=webapp" opinion_id="7993744">86 So. 339.

It is argued on behalf of the state that E. H. Rempe, being- a member of the partnership, was entitled to one-half of the money of the partnership, and that it is not necessary to prove the ownership to the extent alleged in the indictment, and that, if E. H. Rempe owned one-half of the money advanced to Pippin, that is sufficient proof to support the indictment. This reasoning is unsound. The money and property of a partnership is the property of two or more persons jointly, and neither of them has a separate title to any specific part of the money or property. owned by the partnership, and, if the appellant was indicted subsequently for defrauding the partnership, his conviction in the present case could not be pleaded in bar of the prosecution. One of the purposes of requiring the name of the party to be alleged is to enable the accused to' prepare his defense, and another is to enable him to plead in acquittal the conviction in bar of subsequent prosecutions.

The instruction for the state is erroneous and constitutes reversible error.

The judgment is reversed; and judgment in favor of the appellant rendered on the present indictment, and the appellant held in custody to await the action of the next grand jury under such bond as the circuit judge may fix.

Reversed, and judgment here.