96 Ark. 237 | Ark. | 1910
(after stating the facts). Appellant was convicted of obtaining property under section 1689 of Kirby’s Digest, which makes it a felony to obtain by “any false pretense” “any personal property,” etc., of another. Appellant contends that, inasmuch as the alleged false pretense was concerning land which he conveyed, he could have only been indicted under section 1693 of Kirby’s Digest. That section reads: “Every person who shall be a party to any conveyance or assignment of any real estate, or interest in any real estate,” etc., “with intent to defraud any prior or subsequent purchaser, or to hinder, delay or defraud creditors or other persons, shall be deemed guilty of a misdemeanor, and on conviction shall be fined in any sum not less than five hundred dollars.”
The .above sections prescribe different offenses. The gravamen of section 1689 is the obtaining of money or property by any false representation of an existing or past fact by one who knows the representation to be false at the time he makes it. The false representation may be concerning land or anything else, but there must be a false and fraudulent representation. Under section 1693 the offense may be committed by a conveyance of land to defraud whether there be any false and fraudulent representation of a present or past fact made to the person defrauded or not.
Proof necessary to convict of the crime charged under section 1689 would be essentially different from that required to convict under section 1693. See State v. Asher, 50 Ark. 427.
The allegation as to the satisfaction of an account due S. D. McGill & Company was merely surplusage, and the court eliminated this from the consideration of the jury.
The check which appellant is alleged to have obtained by his false pretense is described with sufficient particularity to identify it as the check of S. D. McGill & Company. It was shown to have a value of $123.50. There was no variance between the allegations and the proof as to the ownership of the money that was paid on the check. It was the money of S. D. McGill & Company. The proof conformed to the allegations. As to whether or not S- D. McGill & Company was a partnership composed of S. D. McGill and Ed Alexander was submitted to the jury. There was evidence to warrant a finding that there was such a partnership.
The appellant contends that the court erred in not instructing the jury that before appellant could be convicted it was necessary for the State to show that there was a lien or incumbrance on the land. This contention can not be sustained. The alleged false pretense was that the land was “not incumbered, that he did not owe one cent on the land, and that there was not the scratch of the pen against said land.” The court in its instruction did submit to the jury the question as to whether the appellant made the representations alleged in the indictment, and as to whether these representations, if made, were false, and whether appellant obtained by reason of such representations a check of S. D. McGill & Company of the value of $123.50. The instruction of the court was in strict conformity with the allegations and the proof. The court did not err in its instruction. The evidence was amply sufficient to show that appellant made the representations alleged in the indictment, and that at the time he made such representations there were notes outstanding which he had given for the purchase price of the land. The deed recited that the consideration was in deferred payments, and the evidence shows that notes were given for the deferred payments. It was in evidence that these notes were unpaid, and that S. D. McGill & Company would not have accepted the deed from appellant, had they known that appellant had not paid for the land. This testimony was sufficient to show the representations, their falsity, that appellant knew them to be false, and that he obtained the check for $123.50, and of that value, by reason of such representations.
We find no error in the rulings of the court. The judgment is correct. Affirm.
