74 Fla. 594 | Fla. | 1917
John C. Smith was convicted in the Circuit Court of Bay County on a charge of obtaining money under false pretenses, and seeks reversal here on writ of error.
The indictment contained three counts, and after a motion to quash each of the courts was denied, the defendant moved to require the State to elect which count it would try him under, and the State elected to go to trial on the first count.
The first error assigned is based on the refusal of the court to grant the defendant’s motion to quash the indictment, the first and second grounds of which, are that the indictment is so vague, indefinite, .uncertain, as to mis
The third ground of the motion to quash, is that the money obtained by the false pretenses is not properly described, and counsel for plaintiff in error cites the case of Sullivan v. State, 44 Fla. 155, 32 South. Rep. 106, in support of his contention. The information charges that the defendant obtained “from Louis Nelson certain money, the property of said Louis Nelson of the value of seventy-five cents, a more particular description of said property being to the grand jurors unknown.” In the Sullivan case, supra, an information was held to be bad which described the money obtained by false pretenses as seven dollars and fifty cents, and the court predicated its decision upon the failure of the information to allege that a more particular description was unknown. If is a, well-settled rule in this State that where the grand jury does not know the specific description of the money alleged to have been stolen it may so aver, and the allegation of the larceny of a stated number of dollars and cents, accompanied by a statement that a inore’ particular or specific description thereof is unknown to the grand jury is all that is required to make the description sufficient. Enson v. State, 58 Fla. 37, 50 South. Rep. 948; Strobhar v. State, 55 Fla. 167, 47 South. Rep. 4; Lewis v. State, 55 Fla. 54, 45 South. Rep. 998; Sullivan v. State, 44 Fla. 155, 32 South. Rep. 106; Lang v. State, 42 Fla. 595, 28 South. Rep. 856.
In the case of United States v. Cannon, 4 Utah, 122, 7 Pac. Rep. 369, a defendant was indicted for violation of a statute which provided, “If any male person in a territory * * * shall hereafter cohabit with more than one woman,” the indictment. which charged that one “Angus M. Cannon * * * did unlawfully cohabit,” etc. was attacked on the ground that it failed to allege or show that the defendant was a “male person.” The court said: “The name Angus is in this community
The indictment in this case charges that the defendant “did thereby obtain money from Louis Nelson, the property of him, the said Louis Nelson.” The allegation that the money was “the property of the said Louis Nelson” shows that he was a “person,” as the capacity to own property is peculiar to human beings.
The next ground in the motion to quash is based upon the fact that the bad metal checks that Nelson bought from the defendant, and which contained on one side the words “good for 100 in Merchandise” did not show what the checks purported to be good for. We do not think that there is anything in this contention. It is immaterial what “100” stood for. It purported to be good for “100” something “in Merchandise,” and the offense consisted not in what the metal check was worth, but that it was used in connection with certain false representations fraudulently to obtain money from Nelson.
The sixth ground of the motion to quash, (which is not argued by the plaintiff in error), shows no error in the refusal of the court to quash the indictment on that ground.
The second assignment of error is based upon the denial of the court to strike the testimony of the State’s witness L. M. Nelson to the effect that he paid the defendant for the metal checks with a $15.00 check. The testimony discloses that Nelson had money in the bank on which he gave the check, and that the defendant
The third assignment is based on the court’s refusal to strike that part of the testimony of L. M. Nelson, a witness for the State, as to the value of the genuine metal checks of the West Bay Naval Stores & Lumber Company. This was proper testimony, as it tended to prove that the genuine brass checks of the Mill Company possessed a value as a medium of exchange. The evidence of this and other witnesses proved that the genuine checks were in general circulation in the neighborhood, and were used as a medium of exchange, for merchandise of the value indicated on the checks, and that those which contained the inscription “good for 100 Merchandise,” could be exchanged for a dollar’s worth of merchandise at the company’s store. The checks which the defendant used to obtain the money from Nelson with, were thus inscribed, and it was proper to prove their value as a medium of exchange.
The fourth assignment is abandoned by plaintiff in error.
The seventh assignment of error is based upon the court’s denial of the defendant’s motion for a new trial, on the grounds that the verdict was contrary to, and not supported by the evidence, was contrary to law and to the charge of the court. These grounds present the only serious question raised by the assignments of error. It is contended by the plaintiff in error that there is no proof that the defendant made any representations to Nelson as to the genuineness of the checks; that he merely said to him that he had some checks, and if he could use them he Avould let him have them; that he only claimed that he had so many checks on hand and that he would like to dispose of them, and that he did not particularly say Avhat kind of checks they were. The charge given by the court, which the defendant in error contends the jury disregarded when they returned the verdict of guilty, is as follows: “Unless the evidence sIioavs that the defendant made some representation to Mr. Nelson as to the genuineness of the check, the indictment has not been proven and you should find him not guilty.
“The defendant is not being tried for passing a bogus check or worthless check, he is being tried for making false representations, knowing them at the time to be
The defendant in error proceeds on the hypothesis that because the testimony discloses no false representations in the spoken words of the defendant to Nelson,' the verdict was contrary to this charge. The position is untenable. It is not necessary that the false representations be entirely by spoken or written words. Acts and conduct in connection with the same, or even acts and conduct alone under certain circumstances, may be as potent to establish false representations as when made by word of mouth. People v. Wasservogle, 77 Cal. 173, 19 Pac. Rep. 270; State v. Phifer, 65 N. C. 321.
In the Phifer case, supra, the court said, “A false representation of an existing fact, calculated to deceive, and which does deceive, and is intended to deceive, whether the pretense is in writing, or in words or in acts, by which one man obtains value from another without compensation is a false pretense.” See also State v. Whedbee, 152 N. C. 770, 67 S. E. Rep. 60, 27 L. R. A. (N. S.) 363.
In Commonwealth v. Beckett, 119 Ky. 817, 84 S. W. Rep. 758, 68 L. R. A. 638, the court said: “When one intentionally creates a belief as to an existing fact, which is false, and with intent to, defraud another of his property, and does so, it cannot matter whether the erroneous belief was induced by words or acts, or by both. The mischief may be done as effectually by one method as by another * * * words are used to express ideas. Signs might be used instead. Conduct that conveys necessarily the same idea, and intended to do so, is but a substitute for the words or signs expressive of it.”
In the case of Roberts v. State, 2 Head (Tenn.) 501,
In the case at bar, the defendant went to Nelson’s store with a lot of metal checks which contained on one side the words “West Bay Naval Stores & Lumber Co., Lumber Dept. St. Andrews, Fla.” and on the other “Good for 100 in Merchandise.” The West Bay Naval Stores & Lumber Co. was a large concern employing a number of men to whom it issued metal checks representing certain values as a medium of exchange in making purchases from the Company’s store, or commissary operated by Campbell Brothers, in denominations of a dollar, fifty cents, twenty-five, ten and five cents each. These facts were well known in and around St. Andrews, and in and around where the mill and commissary were located, and known to both Nelson and the defendant. Nelson had bought the mill company’s checks from vari
A token is defined by the Standard Dictionary as a “symbol,” and as “A metal tablet, resembling a coin, formerly used in England by trademen and others as evidence of an amount due, as stated thereon, by the issuer to the holder.” A piece of spurious metal about the size of a current coin, representing it on one side, with an advertisement on the other, has, as we have seen, been held to be a false token. “So also, a worthless bill purporting to be currency constituted a false token, and offering it in payment may constitute the crime of false pretense though no express representation of its genuineness is made.” 11 R. C. L. 852; Commonwealth v. Beckett, 119 Ky. 817, 84 S. W. Rep. 758, 68 L. R. A. 638. The checks used by Smith to defraud Nelson were -tin versimllitude of the genuine checks. They were well calculated to deceive, and did deceive Nelson, and the other essential elements of the crime of procuring money under false pretenses having been