State v. Dodenhoff, 40 So. 641

State v. Dodenhoff

40 So. 641 | Miss. | 1906

Whitfield, C. J.,

delivered the opinion of the court.

This is an appeal by the state from a judgment sustaining a demurrer to an indictment charging the obtaining of money under false pretenses. The only ground of demurrer calling for serious consideration is that the indictment does not charge in express terms that the defrauded party relied on the false pretenses or was induced by them to part with his property. The exact point has never been decided in this state, and we have therefore given it most careful consideration. The allegation of the indictment is this: That “by means and color of which false fraudulent pretenses they, the said Dodenhoff and Cotton, did then and there fraudulently, falsely, and feloniously obtain of the said J. J. Stevens twenty-four hundred dollars,” etc.

The chief authorities relied on by the learned counsel for the appellee are Denley v. State, 12 South. Rep., 698, and 8 Ency. *284Pl. & Pr., 870, and note 3. But the first is an authority for the state. We have been at the pains to examine the original record in Denley v. State, and the indictment therein set forth. The indictment was drawn under Code 1880, § 2813, and charged the obtaining of thirty-one dollars in money from O. T. Wood, the defendant having sold Wood a bale of cotton which was subject to two trust deeds, without disclosing the liens. The sole allegation, so far as the point under discussion is concerned, in that indictment, is this: “And from him, the said O. T. Wood, feloniously did obtain thirty-one dollars in money.” What the court held was that the indictment was substantially defective in failing to aver that the money was received “by means of or because of the sale of the cotton;” that is to say, the court held that, if the indictment had charged that the money was obtained “by means of the sale of the cotton,” the allegation would have been sufficient. The indictment in the case at bar does charge this precise thing, that the money was obtained “by means of the false pretenses.” Properly understood, Denley v. State supports the contention of the learned assistant attorney-general. Appellee also cites State v. Mortimer, 82 Miss., 443 (s.c., 34 South. Rep., 214). But that was an indictment for obtaining property under false pretenses, and as to this point charged, precisely as this indictment does, that the property was obtained “by means of the false pretenses,” and that allegation was not held insufficient by the court. The case was dealt with on another proposition altogether.

The most direct authority cited by counsel for appellee is 8 Ency. Pl. & Pr., 870, which cites Denley v. Stale — a clear misapprehension of the effect of that decision; but this authority admits, at page 872, that the allegation as to the false pretenses need not necessarily be averred in those express words, and after discussion states the true rule to be as follows: “Although in certain states the indictment usually contains a direct allegation that the person alleged to be defrauded believed the pretenses to be true, and was induced thereby to part with his property, yet *285it may be stated as tbe general rule that it is not essential expressly to allege reliance upon the false pretenses by tbe person defrauded, but that such reliance is, of necessity, implied, from tbe averment that be was induced by tbe false pretenses to part with tbe possession of bis property or to do tbe act complained of.” This is a correct statement of tbe law, and tbe overwhelming weight of authority manifestly is, and we think tbe better reasoning is, that the averment that tbe property was obtained by .means of tbe false pretense is tbe equivalent of and itself means necessarily that tbe defrauded person relied on the false pretenses and was induced by them to part with bis property. Mr. Bishop’s statement ('Criminal Procedure, vol. 2, sec. 176) is simply meant to announce that some few courts have held tbe contrary, not that it is tbe better doctrine at all. For in bis book (Directions and Forms) be sets out tbe proper form of tbe indictment in sec. 420, in which tbe allegation is simply that tbe defendant “did then and there obtain tbe property by means of tbe false pretenses.” And so in sec. 421 tbe same form of allegation is used. Wharton, in bis Criminal Law (vol. 2, p. 27), says that tbe property “must be directly averred to have been obtained by means of tbe false pretenses, but tbe process of reasoning by which tbe conclusion is reached is usually matter of argument, not of pleading, citing Clark v. People, 2 Lans (N. Y.), 329; Commonwealth v. Hulbert, 12 Metc. (Mass.), 446. Russell says (2 Russell on Crimes, 529) : “Tbe indictment alleged in substance that tbe defendant obtained certain things by means of said false pretenses, and tbe court held this to be sufficient.” See, also, 2 Bishop’s Criminal Procedure, sec. 175; 1 McClain’s Criminal Law, 706. Indeed, tbe text-books lay down tbe rule that tbe averment that tbe property was obtained by means of tbe false pretenses is sufficient.

Turning, now, to some well considered eases, we find that in State v. Penley, 27 Conn., 591, tbe court says: “It is not, indeed, charged in express terms that Percy gave credit to tbe false pretenses of tbe accused in regard to bis property and pecuniary *286ability; but that lie did so is a necessary implication from tbe allegation that the oxen were obtained by means of that assertion. We think the information, therefore, although exceedingly concise, not to say meager, in its details and allegations — too meager to deserve commendation — sufficient to warrant and sustain the conviction.” This case is cited, approved and followed in People v. Jacobs, 35 Mich., 36. In State v. Butler, 47 Minn., 485 (s.c., 50 N. W. Rep., 532), it was expressly held that, where there has been obtained by false representations a party’s signature to a deed, the averment “that by means of the false representations the defendant did obtain the signature of H. to a deed executed by him is a sufficient averment that H. was induced by the representations to affix his signature.” In Norris v. State, 25 Ohio St., 217 (18 Am. Rep., 291), is an excellent discussion reviewing all cases supposed to hold the contrary, amongst others, State v. Philbrick, 31 Me., 401, cited by Mr. Bishop in his Criminal Procedure (vol. 2, sec. 176), and concluding that the better view is that it is sufficient to aver that the defendant obtained the property by means of the' false pretenses. In the case of State v. Hurst, 11 W. Va., 60, the court say on this precise point: “After setting out the false pretenses of the accused, each of these four counts of the indictment alleges, ‘By means of which said false pretenses the said Gilbert L. Ilurst did then and there feloniously obtain from said Benjamin R. Coffman this money,’ describing it. This is almost identically the language of the statute, ‘by false pretenses obtained money,’ and it means that Benjamin R. Coffman was induced by said false pretenses to part with said money.” There is not, however, as the counsel for the defendant insists, any necessity, or even propriety, in using this phrase in the indictment. On the contrary, the phrase which has been used to convey the same idea is more appropriate, being not only the form in which it is put in the statute which creates the offense, but also the form universally used, and the one prescribed in all the text-books. See Archibald’s Criminal *287Pleading (ed. 1843) ; 'Chitty’s Criminal Law (ed. 1847), p. 1005; Bishop’s Criminal Procedure, vol. 2, sec. 162.

The counsel for the defendant, however, refers to several cases as sustaining his position that this essential element of this statutory offense should be alleged in a manner more direct than it is alleged in this indictment, or in any of the forms of indictment given by our best writers on criminal law. The cases referred to, I think, sustain no such position. In all of them, it is true, there was an allegation that by means of said false pretenses the accused obtained money or property, and the indictment was pronounced bad, but not because of this allegation; for, as I understand these cases, in each of them the indictment would have been held bad, had they contained the most explicit and direct averment that the prosecutor had been induced to part with his money by relying on the false pretenses of the accused. The difficulty in each of these cases was not in the form in which this necessary allegation was made; but it lay in this: that the allegations in the indictment did not show that the false pretenses had any connection with the prosecutor’s parting with his money, and, if the false pretenses alleged are of such a character that they could not have induced the prosecutor to part with his money, then the allegation that he was so induced would not make such an indictment good. This is all that can, I think, be fairly deduced from any of the cases cited by the defendant’s counsel. They certainly do not give any countenance to the position that in all cases, or even, ordinarily, it is necessary, in respect to the matter under consideration, to do more in an indictment for obtaining money by false pretenses than to allege that by means of the false pretenses the money was obtained. I do not think that it can be fairly deduced from any of these decisions that any of‘the courts who rendered them would have held that more than this was necessary in any case, though the court in some of them uses loose language that might countenance the idea that more than this might be required to be alleged in some peculiar case. The cases to which I refer are Rex v. Reed, *2887 Car. & P., 849 (32 Eng. Common Law, 904) ; State v. Orvis, 13 Ind., 569; Meshmeier v. State, 11 Ind., 482; State v. Green, 7 Wis., 676. We think this last case puts the matter in a correct and clear light. There can be no rational contention that a defendant is not, by this form of averment, duly and fully informed of the precise crime with which he is charged. As said by the West Virginia supreme court, it is the most appropriate form to use, and the holding that it is sufficient to aver in an indictment of this sort that the defendant obtained the property by means of the false pretenses is, in our judgment, most consonant, not only with the overwhelming weight of authority, as contained in both text-books and decisions, but with sound principle and common sense.

Preserving to a defendant the right to be duly informed of the nature and cause of the accusation made against him, there ought not to be, in addition to this, insistence upon forms which are purely technical and surplusage. There are too many reversals by far on technical grounds. They ought to be had, in those cases where the defendant is shown by the testimony to be manifestly guilty, only upon objection having real and substantial merit. • •

It follows that the judgment must be reversed, and the demurrer to the indictment overruled, and the cause remanded.