141 Iowa 297 | Iowa | 1909
The said W. G. Clark on the 9th day of November, A. D. 1904, in the county of Appanoose and State of Iowa, did then and there unlawfully, willfully, feloniously, designedly and with intent to defraud one Ella Close, represent and pretend to said Ella Close, he, the said W. G. Clark, was the owner of certain property in Center-ville, Iowa, to wit, lot nineteen (19) in Clark & Peatman’s*300 addition to the city of Centerville, Iowa, and that said property was free from all incumbrances of every kind, and then and there offered to convey to said Ella Close said property above described on payment to said W. G. Clark of a certain sum of money, to wit, nine hundred and fifty dollars, by good and sufficient warranty deed, and relying on said representation, and in pursuance of said offer, the said Ella Close was then and there induced to pay to the said W. G. Clark the sum of nine hundred and fifty dollars in payment for the purchase of said property. Whereas, in truth and in fact, said land above described was not clear and free from all incumbrances, and the said W. G. Clark did not have a clear title to said land, there being at the time a mortgage in existence covering and including said property above described, said mortgage being for the sum of five hundred dollars and given by one C. J. Miller to one John Galbraith. And the said W. G. Clark falsely and fraudulently made said representations to said Ella Close, designedly and with intent to defraud, then and there knowing said representations to be false, and for the purpose of procuring from said Ella Close nine hundred and fifty dollars as aforesaid. And the said Ella Close believed said representations and pretenses so made to be true, and relied thereon, and was induced to deliver to said W. G. Clark said nine hundred and fifty dollars as above mentioned, and said Ella Close was thereby defrauded, contrary to law, and in such case made and provided and against the peace and dignity of the State of Iowa.
These allegations we think are open to the objection made by the appellant. While under our statutes and practice mere matters of form are not insisted upon with the strictness which marked the common law, there has not been, nor can there safely be, any relaxation of the rules which require a legal accusation of crime to state with clearness and certainty all the facts necessary to constitute a complete offense, and disclose to the accused the nature of the case which the State proposes to make against him. The substance of the alleged crime — that is, the facts which are necessary to constitute a complete
There are crimes which may be committed by the accused in the secrecy and solitude of his room which do not directly or immediately affect any other person, and to charge such a crime it is ordinarily necessary to do no more than to charge the doing of the act and the unlawful or felonious intent. For example, the accused may be charged with the unlawful possession of burglar’s tools, under Code, section 4790; he may adulterate food with intent to sell the same in violation of Code, section 4982; or may keep intoxicating liquors with intent to sell in violation of the prohibitory law, and a charge of an offense of this class may be made without alleging the purpose of the accused to injure any particular person. But by far the larger class of public offenses are not of this character. In most instances the offense against the State is complete only as the wrongful act operates upon or affects some third person. For example, there can be no assault without a person assaulted, no bribery without a person bribed, no unlawful sale without a purchaser, and no unlawful loaning of public moneys without a borrower, no larceny without' trespass upon the property rights of another. State v. Allen, 32 Iowa, 248; State v. Brandt, 41 Iowa, 593; State v. Jackson, 128 Iowa, 543. It follows of necessity that in such cases the statement of the name of the third person without whom the crime can not be committed is essential to the statement of a complete offense, and an indictment which omits to state such name is demurrable. Buckley v. State, 2 G. Greene, 162; State v, McConkey, 20 Iowa, 574; State v. Allen, supra;
It would seem to require uo argument to show that the crime of obtaining money or property by false pretenses is of the latter class. The offense which the statute creates can be committed only by -obtaining money, goods, or property belonging to another by means of some false pretense or false token, Code, section 5041. To charge the crime, it is thei’efore necessary to state the name of the person whose property rights have been thus trespassed upon. This principle has been often affirmed and reaffirmed by the authorities — just as in cases of robbery and larceny. Indeed, these three crimes — robbery, larceny, and obtaining property by false pretenses — have many essential elements in common. In each the gist of the offense is the felonious taking and conversion of the property of another; the difference between them relating solely to the means by which such taking and conversion are accomplished. In neither can there be any completed offense except as the property of some other individual is in fact obtained, and the name of such individual is descriptive of the o-ffense, and must therefore be averred in stating the accusation. This was our holding in the comparatively recent ease of State v. Jackson, 128 Iowa, 543. The rule thus approved finds sufficient support in Leobold v. State, 33 Ind. 484; Washington v. State, 41 Tex. 583; People v. Krummer, 4 Parker, Cr. R. (N. Y.) 217; Thompson v. People, 24 Ill. 66 (76 Am. Dec. 733); State v. Wasson, 126 Iowa, 320; State v. Lathrop, 15 Vt. 279; Jones v. State, 22 Fla. 532; Moulie v. State, 37 Fla. 321 (20 South. 554); Halley v. State, 43 Ind. 509; Thompson v. People, 24 Ill. 60 (76 Am. Dec. 733); State v. Blizzard, 70 Md. 385 (17 Atl. 270, 14 Am. St. Rep. 366); State v. Smith, 8 Blackf. (Ind.) 489.
The Attorney General, in argument, concedes the
We reach this conclusion all the more readily from the fact that the case as made by the State .upon the transaction between appellant and Mrs. Close is of a weak and unsatisfactory character. Taking the story of the prosecuting witness as literally true, it seems to present a case of false promises rather than of false pretenses in the legal sense of the term. The contract was reduced to writing, and the undertaking there is not that the property was clear of incumbrance at that date, but that, when the balance of the purchase money was paid appellant, a warranty deed showing clear title woiüd be delivered to the purchaser. There is other testimony as to representations which have a tendency to establish the charge as made, but it is neither so direct, strong or positive that we can say that, without the incompetent evidence to which
Other questions have been argued by counsel, but those we have already discussed being decisive of tbe appeal we shall not protract this opinion for their consideration.
The cause must be remanded for a new trial. — Reversed.