State ex rel. Labuwi v. Hathaway

168 Wis. 518 | Wis. | 1919

Vinje, J.

The relator claims that the complaint and evidence are insufficient to show that any offense known to the law was committed, because at best they show only a promise to do something in the future, and that the failure to fulfil such a promise is not an offense. The state argues that the complaint and evidence show any one of three distinct offenses, namely: (1) playing the confidence game mentioned in sec. 4568», Stats. 1917; (2) a gross fraud or cheat at common law under sec. 4430; and (3) obtaining money under false pretenses as defined by sec. 4423.

Without attempting to define the statutory confidence game we have reached the conclusion that the complaint and evidence do not bring the alleged acts of the relator within it. The statute seems to contemplate that some visible material token or symbol shall be used or manipulated in such a manner that the confidence of the victim is gained, or in such a manner as to inspire confidence in the victim that he can beat the manipulator at his own game. In this case neither element was present.

Since our statute penalizing the obtaining of money under false pretenses is largely if not entirely an amplification of the common-law fraud or cheat offense, it is not deemed advisable to direct our attention to' an analysis of such offense, but rather to direct it to the false pretense statute itself, which is quite specific and has received repeated construction by this court, as have similar statutes by other' courts.

In Baker v. State, 120 Wis. 135, 97 N. W. 566, it was held that the obtaining of money under false pretenses for an ostensibly charitable purpose came within the statute. So the question is, Did the relator, by means of false pretenses, secure money that he would not otherwise have secured had such pretenses not been used.

A false pretense, within the meaning of the statute, is the representation, with the intent to' defraud, of the existence of some material fact or circumstance calculated to mislead which does not exist and which the accused knows to be false or has no reason to^ believe is true. Clawson v. State, 129 Wis. 650, 109 N. W. 578; Comm. v. Stevenson, 127 Mass. 446; State v. Briggs, 74 Kan. 377, 86 Pac. 447, 7 L. R. A. n. s. 278 and note; 11 Ruling Case Law, 831.

A mere naked promise to’ do something in the future or to pay for goods in future is not sufficient to constitute a false pretense within the statute. Comm. v. Drew, 19 Pick. (36 Mass.) 179; State v. Briggs, supra. But a false representation that some material fact or circumstance exists, coupled with a promise to do something in the future, comes within the statute. Thomas v. People, 34 N. Y. 351; State v. Briggs, supra; Taylor v. Comm. 94 Ky. 281, 22 S. W. 217; State v. Fooks, 65 Iowa, 196, 452, 21 N. W. 561, 773.

Assuming the evidence and the allegations of the complaint tO' be true, we find that the relator represented (a) that the celebration was for the benefit of the Red Cross, when it was not; (b) that the committee acted for the Red Cross or some part of the public, when it did not; and (c) that he was engaged in the business of securing funds for the Red Cross, when he was not. These were all false representations of material facts which he claimed existed, and it is alleged and the evidence shows that upon- the strength of them he secured money that otherwise he would not have secured. That an appeal to the patriotism of the people at the time and for the cause assigned was a most potent purse-opener cannot be doubted. The conclusion reached, therefore, is that the complaint charges the offense of obtaining money under false pretenses as defined by sec. 4423, Stats. 1917, and the evidence shows that there is probable cause to believe the relator guilty thereof.

By the Court. — Order affirmed.