State v. CraneState v. Crane
- Reporters:
- Before:
- Horton
The opinion of the court was delivered by
Horton, C. J.:We have carefully examined the information and the evidence introduced to support its allegations. We think the information fatаlly defective and the evidence insufficient to sustain the conviсtion. The information attempted to charge Stub Crane and J. C. Gray with criminal *258conspiracy in obtaining from John Marquardt his promissory note fоr $150. The note is not copied in the information, nor is it stated whether it wаs negotiable or not. The inference from the allegations is that it was not negotiable, because it was payable “to J. C. Gray himsеlf,” and not to order or bearer. (Gen. Stat. of 1889, ¶ 477; McCrum v. Corby, 11 Kas. 464.) It appears from the information that, in order to obtain the note for $150, Crane went to the residence of Marquardt on the 20th of February, 1893, and represеnted to him that he was the agent of F. H. Miller & Co. to sell and put up lightning rods, and that if Marquardt would purchase one he would put up a lightning rod on his house for 75 cents per foot for the excess of 100 feet of rоd; that it would take 110 feet of rod for the house, and that the same would cost Marquardt $7.50 only; that Marquardt, at the instance of Crane, signed а contract in the rodding of his house which he thought bound him to pay $7.50. This contract was signed in duplicate, Marquardt retaining a copy. Soоn after the lightning rod was put up by Crane, Marquardt ascertained he hаd signed a contract to pay $150, instead of $7.50. Gray, representing that he was the attorney of F. H. Miller & Co., offered to take the note of Marquardt in payment for the lightning rod, and informed him that if he had a defense to the claim he could present it against a note bettеr than against the contract. He proposed to take the note of $150 in the name of F. H. Miller & Co., but actually took, the note to himself. It is not averred in the information that Marquardt was so illiterate аs not to be able to read, or that he was blind, or was shown one paper and by trick induced to sign another. With full knowledge that the cоntract called for $150, and not $7.50, he executed the note complained of. If he could read writing, he knew he was executing the nоte to J. C. Gray, and not to F. H. Miller & Co. The only past or existing facts statеd by either Crane or Gray to Marquardt were immaterial matters, and thоse were not “directly and specifically negatived.” (The State v. Palmer, 50 Kas. 322.) The matters represented by Crane and Gray to *259Marquardt to happen in the future were not false pretenses within the statutе. A mere promise is not sufficient. (In re Snyder, 17 Kas. 542.) Marquardt testified that he could not sаy that “ he relied upon the statements made by J. C. Gray ” on the 21st of February, 1893, at the time he signed the note, “ because he had found out that hе was a fraud.” He further testified that Gray said, “if I didn’t want to sign the note he was rеady to leave;” that “the contract was more binding — no belief аbout it — more binding than the note, and I was fool enough to do what he sаid.”
A case very similar to this was decided by the supreme court of Missоuri on November 9, 1893 — The State v. Cameron, 23 S. W. Rep. 767. In that case, the agent assured the owner of the house that the rodding would not amount to more than $5. The owner signed a contract obligating himself to pay $195. Instead of giving a note, as in this case, he paid $195, when he knew he had agreed to pay $5 only. Gantt, J., delivering the opinion, observed: “It is not the policy of the law to punish as a crime the making of every foolish or ill-considered agreement. If it is, the jails and prisons must be greatly enlarged. Where the pretense is absurd or irrational, or such as the party injured had at the very time the means of detecting at hand, it is not within the act.” The judgment is reversed, and the defendant discharged.
All the Justices concurring.