State v. Kube, 20 Wis. 217

20 Wis. 217 | Wis. | 1866

Lead Opinion

Cole, J.

Tbis is an indictment for obtaining property under false pretenses. Tbe indictment consists of two counts. There was a trial and a general verdict of guilty. A motion was made in arrest of judgment, and tbe cause bas been reported to tbis court for a decision upon several questions arising upon tbe indictment and motion in arrest. A number of objections are taken to eacb count in tbe indictment. We shall only notice those that we deem most important and material.

It is claimed that tbe first count is defective for tbe reason that there is no sufficient venue to most of tbe material and issuable averments contained therein. Without stopping, however, to analyze tbe count, we will merely say that we think tbe objection not well taken. In our opinion, it does appear from tbis count where tbe offense was committed. A venue is laid for every issuable fact, either in tbe margin or body of tbe count, or by words of reference.

It is further Claimed and insisted that tbe first count is bad on account of the ambiguous and indefinite manner in which tbe offense is stated. It is alleged, in substance, in tbis count, that one Oarlos A. Sprague, tbe express agent at tbe city of Watertown, received as such agent, on or about tbe 20th day of December, 1864, a package of money, containing tbe sum of sixty dollars in bank bills, which was intended for and directed to one Christian Kube, and that tbis package tbe defendant obtained from tbe agent by falsely pretending and representing to him that tbe same was intended for Christiana Kube, bis wife. Now it is said there is an ambiguity or re-pugnancy in tbis statement, since bank bills are not money, and therefore it does not appear whether tbe defendant is charged with obtaining a package of money or of bank bills. Tbis objection assumes that tbe word “money” is only applicable to coined metals, as gold, silver or copper; whereas tbe word is as frequently and generally applied to bank bills or notes which represent coin, or are a substitute for it, and pass current as a medium of exchange and commerce. It was obviously used in tbe latter sense in tbe indictment, and there was therefore no repugnancy or uncertainty in speaking of a “ package of money containing sixty dollars in bank bills.” And this likewise disposes of another objection taken to this coijnt, namely, that the bank bills are not allegecljto have been of any value. The property obtained, it is alleged, was a “package of money containing the sum of sixty dollars in bank-bills,” which clearly implies that the bank bills were of value and passed current for money. The expression is equivalent to saying that the package contained bank bills or notes to the amount of sixty dollars, which bank notes passed current as money. Certainly there would be no propriety in saying that the property was a package of money, unless the bank notes had some value. And consequently, in order to give effect to the language used, we must assume that the bank notes were current and circulated as money in the commercial world.

As already stated, the false pretenses and representations by which the defendant obtained the property were, in substance, that the package of money was intended for Christiana Kube, the wife of the defendant; and it is contended that there is no sufficient averment in either count that the express agent be-lieved these pretenses to be true, or relied on the truth of them when he surrendered or parted with the possession of the package. It is alleged that the “ said Carlos A. Sprague, then and there believing the said false pretenses and representations so made as aforesaid by the said John L. Kube, and being deceived thereby, was induced by reason of the false pretenses and representations so made as aforesaid, to deliver, and did then and there deliver, to the said John L. Kube the said package of money,” &e. This allegation shows that the point is'not well taken, so far as the first count is concerned. Eor it is alleged that the express agent believed the false pretenses and representations so made to him, and was induced thereby to part with the package. Thus it seems that the false pretenses had a controlling effect upon tbe mind of tbe agent, and tbat it was solely by means of tbem tbat tbe fraud was consummated. Eeference was made on tbe argument to tbe case of State v. Green, 7 Wis., 676, as laying down a stricter rale of pleading, and as deciding tbat tbe above allegation was insufficient. But we do not so understand tbe doctrine of tbat case. It appeared in tbe proof in tbat case, tbat tbe material representation and real false pretense of Green, wbicb induced Wriglrt and Paine to part witb their money, was tbe draft upon Clark, Dodge & Co. Tbis draft was not set forth in tbe indictment, as it should have been. But we do not think there is anything •in1 that case, when rightly and fully apprehended, wbicb supports tbe objection we are now considering.

Again, it is claimed tbat tbe facts charged in tbe indictment were not such as to constitute an offense under tbe statute, because tbe express agent bad in bis bands a package directed to one Christian Kube, and suffered himself to be persuaded tbat tbe package was misdirected; tbat is, tbe agent allowed the defendant to make him believe tbat tbe package was intended to be directed to one Christiana Kube. Tbis representation, it is said, was a bold, naked lie, and was not of such a character as tbe agent bad a right to rely upon, having tbe writing before him and tbe means at band for detecting tbe fraud. There is some conflict of opinion whether tbe pretenses should of themselves be of a character wbicb would naturally deceive a person of ordinary caution and prudence. See authorities referred to in tbe case of Green, supra. Whatever maybe tbe correct rule upon tbat subject, we have no hesitation in bolding tbat tbe false pretenses in tbis case were well calculated to deceive a person of ordinary prudence and discretion. How could tbe agent know that there bad not been a mistake in writing the name on tbe package, and that tbe letter “ a” bad not been left off through ignorance or inadvertence? Such mistakes are very common. It is impossible to say tbat tbe pretense was so absurd or irrational tbat a person of common prudence and " tion would have avoided the imposition.

Eu.rtb.er it is said, if there is any offense set forth in the indictment, the facts show that it is the crime of larceny, and not that of obtaining money under false pretenses. But this objection is manifestly unsound, for the plain reason that the express agent, in consequence of the fraudulent means used, parted with the package absolutely, supposing that he was delivering it to the husband of the consignee or owner. This very distinction is clearly taken by Prof. G-REEhleaf in the section to which the counsel for Kube referred. The author says : “Por, supposing that the fraudulent means used by the prisoner to obtain possession of the goods were the same in two separate cases, but in the one case the owner intended to part with his. property absolutely, and to convey it to the prisoner, but in the other he intended only to part with the temporary possession for a limited and specific purpose, retaining the ownership in himself; the latter case alone would amount to the crime of larceny, the former constituting only the offense of obtaining goods by false pretenses." 8 Grreenl. Ev., §160. In State v. Watson, 41 N. H., 583, and 2 East’s P. C., 671, the same distinction is made, and it is undoubtedly the law upon the subject. In this case there can be no doubt that the express agent willingly parted with the possession of the package, without any expectation of receiving it again, supposing he had delivered it to the proper person.

Some objections were taken to the second count of the indictment which do not apply to the first. "We shall not notice them in detail, since we are satisfied that the count is bad on account of the uncertainty in the description of the property. It is described as being “ a sealed package of the value of sixty dollars, of the proper goods, chattels and property of the said Christian Kube.” It is laid down in many authorities, that in indictments for obtaining goods under false pretenses, the property should be described with as much accuracy and particularity as in indictments for larceny. The People v. Conger, 1 Wheeler C. C., 448; Wharton’s Crim. Law, sec. 2155; Wharton’s Prec. Ind., p. 243, note (i). And see State v. Morey, 2 Wis., 494. However this may be, we are satisfied that such a general description of the property as is given in the second count ought not to be tolerated. Nothing is averred as to the contents of the package, whether they were bank bills, bonds, promissory notes or title deeds. The property should be described, at least in part, with such certainty as to enable the jury to decide whether the chattel proved to have been obtained is the same as that upon which the indictment was founded. See The State v. Edson, 10 Lou. Ann. R., 229; Rex v. Carson, Rus. & Ry. C. Cases, 303; Rex v. Furneaux, id., 335; Rex v. Tyers, id., 402; Lord v. The People, 9 Barb., 671. But although the second count is bad, and there was a general verdict of guilty, yet the law seems to be well settled that this is no reason for reversing the judgment, at least when the same punishment is prescribed for the offense stated in each count. Wharton thus states the rule: “ The practice both in England and this country has always been, where there has been a general verdict of guilty on an indictment containing several counts, some bad and some good, to pass judgment on the counts that are good, on the presumption that it was to them that the verdict of the jury attached.” Amer. Grim. Law, section 3047.

The only remaining question is that which relates to the ownership-of the property; and this appears to have -been fairly submitted to the jury upon the evidence. That there was evidence tending to show that the money belonged to Christian Kube, cannot be denied. It was for the jury to determine the effect of this testimony.

We have not alluded to all the points made by the counsel for the defendant on the argument; but it is believed that the above remarks dispose substantially of the most important ones.

It follows from these views, that the exceptions of the defendant must be overruled and the cause be remanded to the circuit court, with directions to proceed and render judgment according to law on the good count in the indictment.

By the Court. — Ordered accordingly.

A motion for a rebearing was afterwards granted, and tbe following opinion filed:

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Rehearing

Colb, J.

A motion for a rebearing is made in tbis case, on a point overlooked in tbe above opinion. It will be seen tbat tbe property is described in tbs first count as “ a package of money containing tbe sum of sixty dollars in bank bills.” Tbe evidence did not very clearly sbow wbattbe package contained, or tbat it contained bank bills. In view of tbis state .of tbe proofs, tbe court was requested to charge tbe jury, tbat there was a material and fatal variance between tbe indictment and tbe evidence offered; it not being shown tbat tbe package contained bank bills, nor what it did contain. Tbe court, however, refused to give tbe instruction, but charged that tbe term “money,” in tbe statute against obtaining property by false pretenses, is used in its general sense, and that if tbe jury should find tbat tbe package alleged to have been obtained by tbe de fendant contained anything tbat passed or circulated current and at par as money, it was immaterial whether it was bank bills, gold, silver or what would constitute legal tender; tbe offense charged in tbe first count would be sustained. We think tbis instruction erroneous. Tbe defendant was charged with tbe offense of obtaining by false pretenses a package of money in. “ bank bills.” Tbis was tbe description of tbe property stated in tbe first count. Would proof tbat be obtained a package of money in gold or silver coin meet tbis allegation ? It appears to us tbat it would not. Nor do we think tbe words “bank bills” could be rejected as unnecessarily introduced. They are descriptive of tbe property in tbe package.

By the Court. — The motion for a rehearing is granted.