delivered the opinion of the court.
The defendant was charged with having obtained $500 from Mrs. Annie C. Mitchell by false representations and pretenses. Upon the trial, at the conclusion of the state’s case, the defendant moved the court to dismiss the information and discharge him upon the ground, among others, that the evidence failed to establish the offense charged, or any offense. The motion was overruled, and defendant rested without offering testimony. The jury returned a verdict of guilty, and judgment was entered thereon. From that judgment the appeal is prosecuted. The evidence is presented in a bill of exceptions, made
The principal contentions made by counsel for defendant are that the evidence does not sustain the verdict, and that the information fails to charge a public offense. Counsel for the state insist that the evidence is not before this court for review. Section 12107, Revised Codes of 1921, provides that a defendant may appeal (1) from a judgment of conviction, (2) from an order denying his motion for a new trial, or (3) from an order made after judgment affecting the substantial rights of the party. Upon an appeal from an order refusing a new trial this court may consider any of the matters enumerated in section 12048 as the grounds of a motion for a new trial. Section 12126 provides: “Upon an appeal taken by the defendant from a judgment, the court may review any intermediate order or ruling involving the merits, or which may have affected the judgment.” This section is identical with section 1259 of the Penal' Code of California, and was borrowed from the California Code, when it was introduced into the laws of this state in 1895. In State v. O’Brien,
One of the grounds of motion for a new trial enumerated in section 12048 is that the verdict is contrary to the evidence, which means nothing more nor. less than that the evidence is insufficient to justify the verdict. (Flaherty v. Butte Electric Ry. Co.,
It follows from what has been said that the question of the sufficiency of the evidence to justify the verdict, where the evidence tends even remotely to prove the elements of the crime charged, can be reviewed only on appeal from an order refusing a new trial. (Territory v. Young,
Our conclusion is that upon appeal from the judgment alone we may consider the ruling upon defendant’s’ motion so far only as it does not involve a matter of discretion, or, in other words, our review of the evidence may extend no further than to determine whether there is any substantial evidence to sustain the verdict.
The rule here announced has been adhered to uniformly in California, and the former decisions of this court support it in principle. (Territory v. Young, above; State v. O’Brien, above; State v. Gomez,
The information charges that the defendant procured the money from Mrs. Mitchell by means of these false and fraudulent representations and pretenses: (1) That his credit was good at the banking house of W. A. Clark & Bro. in Butte;
The testimony of Mrs. Mitchell is to this effect: On February 23, 1921, defendant, knowing that she had a considerable sum of money, applied to her to borrow $500 for six months, with interest at the rate of ten per cent per annum. She testified: “He said he needed the money, and could have got the money at the bank that same morning, but that he thought he would give me the advantage and do me a kindness by letting me loan the money to him. * * * When he told me he could borrow the money at the bank, he didn’t say how he could do it. He simply told me that his credit was good at the bank, and he could borrow the money.there, but wanted to give me the preference.” Again she testified that defendant told her that he had stock in the Anaconda Copper Mining Company, and needed the money to pay an assessment on the stock. She was then asked: “Q. Why did you give Mr. Brantingham this $500'?” To which she replied: “Well, because' I thought it was perfectly safe because he had this stock, and that if his credit was good at the bank that my money was just as good with him as leaving it in the bank. I believed he had the stock, and believed his credit was good at the bank. Didn’t know anything at all to the contrary.” Again she testified: “It was not on any security for which I loaned him the money originally. I thought the fact that he had these stocks and different things that that was security enough at that time.” She testified further that defendant executed and delivered to her his promissory note, and that she gave him her check upon the W. A. Clark & Bro. bank for $500.
Hubert Mitchell, the son of the prosecuting witness, testified: That he was present when the transaction occurred between his mother and the defendant; that defendant “came up there on February 23, and asked my mother if she had her money invested yet, and she said, ‘No.’ Well, he said he
This is all of the evidence which tends to prove the representations made or pretenses held out as the inducement to Mrs. Mitchell to part with her money.
Assuming for the purposes of this appeal only that the state- ment by defendant that he could get the money at Clark’s bank is a sufficient identification of the banking house of W. A. Clark & Bro., it is significant that Hubert Mitchell alone testified to that statement. The legislature of this state has seen fit to require that the pretense relied upon in a prosecution of this character must be evidenced by some note or memorandum in writing, signed by the defendant, or, if expressed orally, it must be accompanied by a false token or writing or proved by the testimony of two witnesses or the testimony of one witness corroborated by circumstantial evidence. (Sec. 11987, Rev. Codes 1921.)
It is not contended, and could not be contended, that there was any note or memorandum indicating that defendant had credit at W. A. Clark & Bro.’s bank, or that he conld have borrowed the money there. Neither was there any false token or writing employed by the defendant, and there were not any circumstances tending to corroborate Hubert Mitchell’s testimony. There is not even a suggestion in the testimony of Mrs. Mitchell that defendant led her to believe, or that she did believe, that he referred to the bank of W. A. Clark & Bro. as the institution at which his credit was good or from which he could have borrowed money. We have, then, the
The defendant could not be convicted upon the charge that he represented that he needed the money to pay the assessment upon Anaconda Copper Mining Company stock, since there is not any evidence that Mrs. Mitchell parted with her money in reliance upon that representation. (State v. Bratton,
By this process of elimination we have left for consideration the charge that defendant pretended that he owned Anaconda Copper Mining Company stock, and the evidence that such representation was made meets the requirements of section 11987 above. But in addition to proving that the representation was made and relied upon, it was incumbent upon the state to prove that it was false (State v. Taylor,
In order to prove to a mathematical certainty that defendant did not own Anaconda Copper Mining Company stock, it would have been necessary for the prosecution to trace the title of every share of that stock to its owner on February 23, 1921, and, since there were more than 35,000’ stockholders, it would have been impossible, as a practical proposition, to discharge that burden, but the law does not require the impossible.
"While we are not to pass upon the sufficiency of this evidence, it is well to recall that proof of the falsity of the representation need not be direct. It is sufficient if it established such facts as tend legitimately to show its falsity. (25 C. J. 652.) In People v. Bowman,
In People v. Perry,
We are satisfied that these courts reached the right conclusion, and it follows that, if the evidence in those eases was sufficient to sustain a conviction, it cannot be contended that there is not any evidence in this case tending to prove that defendant made a false representation when he said that he owned Anaconda Copper Mining Company stock.
It is next contended that the evidence that defendant re- ceived a check for $500 from Mrs. Mitchell does not sustain the charge that he received $500 in money. The record discloses that the check was drawn on the bank of W. A. Clark & Bro., in favor of A. J. Brantingham or order; that it bore the indorsement, “A. J. Brantingham” and none other; and that it was paid by the bank on the same day "that it was drawn. It is true that the signature on the back of the check was not identified as the signature of the defendant, but it does appear further that more than six months thereafter, and after his note had become due, defendant applied to Mrs. Mitchell to renew it. These facts could not leave any doubt that defendant actually received the money on the check.
There is some conflict of authority upon the proposition that the allegation that defendant received money is not supported by testimony that he received a check which he afterwards cashed, but the great weight of authority and the better reasoned cases hold that in such a case there is not any material variance, much less a failure of proof. (People v. Leavens,
Finally, it is contended that the information is insufficient, in that it fails to charge that defendant was insolvent at the time he procured the money or thereafter, and in support of this contention counsel for defendant cite People v. Holtz
The gravamen of the offense is making a false representa tion and thereby obtaining the money. (Commonwealth v. Ferguson,
The other errors assigned do not merit special consideration.
The judgment is affirmed.
Affirmed.