194 Iowa 1373 | Iowa | 1922
The appellant assigns no less than 60 separate alleged errors of the trial court, some of which are subdivided into many distinct propositions. While it is manifestly impracticable for us to follow counsel in detail upon all the points thus raised, ive think that a disposition of the main or principal question discussed in the briefs — the sufficiency of the evidence to sustain the verdict of the jury — will govern our ruling upon most of the contentions pressed upon our attention in argument.
“Oelwein, Iowa, May 26, 1921. I hereby authorize the bearer to purchase for my account 300 shares of the Atlas Wheel Company of Cleveland, Ohio, paying therefor the sum of thirty thousand dollars.
“[Signed] G. O. Smith.”
Having obtained the $30,000 in notes, Reysa, with the active assistance and co-operation of the appellant, set about converting them, in whole or in part, into money; but finding difficulty in doing this, except in part, they both went to Smith, the appellant still posing as a purchaser or holder of stock in said company, and professing his purpose to take an additional $20,000 worth of it, and proposed to him the following method
II. It was drawn out in the cross-examination of Smith that, after he made the note to Slifka for $2,838, Reysa returned to him $2,500 of the notes given in the original transaction, and later “gave him credit for an additional $100.” It is argued that because of this showing Smith was not in fact defrauded, and that, therefore, no conviction could rightfully be had upon the indictment in this case. Reference to the statute, Code Section 5041, will show clearly the essential elements constituting the crime charged. It is there provided that:
“If any person designedly and by false pretense, * * * with intent to defraud, obtain * * * the signature of any person to any written instrument the false making of which would be punished as forgery, he shall be imprisoned, ’ ’ etc.
As will be seen, the material allegations of the charge are: (1) The design; (2) the false pretense; (3) the intent to defraud; (4) the obtaining of the signature; and (5) the character of the written instrument as one the false making of which would be punishable as forgery. If each and all of these things are established by the necessary quantum of proof, the crime is made out, and the State is entitled to a verdict of guilty. If any one of these elements is not so established, the accused is entitled to an acquittal. In the case before us, it is to be said
III. Nor do we think it a fatal objection to the State’s ease that the note, the signature to which is alleged to have been fraudulently obtained by Reysa and appellant, was made and delivered to Slifka, and not to them. The essence of the wrong, if any, was in fraudulently procuring or inducing Smith to sign and deliver the note, whether to themselves or to another, if their act in that respect was part of a corrupt scheme to accomplish the fraud. It seems also to be the position of counsel that, as Smith received the automobile for which the note was given, and there was apparently no fraud on the part of Slifka, it cannot be successfully claimed that any fraud or false pretense on the part of Reysa and appellant induced the making or delivery of the note. But the record presents a case not quite
IY. Assuming that the jury found, as we think it rightfully could, that the execution and delivery of the note were procured by false pretense and fraud, as indicated in the statute, the fact, if it be a fact, that, after the offense was consummated, the appellant or Reysa, either or both, returned to Smith an equivalent amount of the notes which Smith had made in the original deal, authorizing Reysa to purchase stock to the amount of $30,000, would not negative the commission of the alleged offense or purge it of its unlawful character; for, if the crime was committed at all, it was consummated when the signing and delivering of the note were procured. What followed thereafter is important only as evidence bearing upon the allegations of fraud by which that wrong Avas accomplished. The case of State v. Foxton, 166 IoAva 181, cited and relied upon for the appellant, does not seem to be in point. The charge there Avas not the obtaining of the signature to a Avriting by false pretenses, but the obtaining of a sum of money by such fraud. The chief question there discussed was whether the mere fact of making and delivering a check upon a bank, without having any deposit to draw upon, and without reason to believe that the bank would honor it, was in itself a false representation, Avithin the meaning of the laAv; and this query was answered in the affirmative.
Y. It is argued that the indictment is insufficient. The point is made that the indictment, to be sufficient, must allege scienter on the part of the accused, and that the charge made in this case is defective in that respect. But the indictment does expressly allege that defendant did ‘ ‘ designedly and by false pretense ajjd with intent to defraud Smith, ’ ’ etc.; and it again alleges that the representations and pretenses charged to be false were made “knowingly, designedly, and feloniously;” and we think that the charge so made is not vulnerable to the objection raised. The charge as made is stated in substantially the terms of the statute, which in all ordinary cases is held to be sufficiently specific to put the accused upon his defense. To adopt the appellant’s argument, and say that the allegation that a false and
VI. It is also assigned as error that the court permitted evidence of the deal by which Smith’s notes were obtained to the amount of $30,000. It is the theory of the defense that this defendant was in no manner implicated in that transaction, and that, if any wrong was committed therein or in the matters subsequently arising in that regard, it was the act of Reysa alone, and that such evidence on the trial of this case was unduly prejudicial to the appellant. This would be the case if the jury was bound to accept the appellant’s denial as true. But unfortunately for him, the State’s evidence tends to show that, while Reysa posed as the agent for the alleged Wheel Company, appellant was his collaborator from the start of the deal with Smith; that each successive phase in the criminal scheme had its root and origin in that transaction; and that, from the first, appellant was an active, if not the leading, operator in the effort to realize the cash on the paper so obtained, and in the elaborate plan worked out to induce Smith to make the note in question and to absorb his full share of the profits of the gross fraud. ITis denial of complicity in the offense creates an issue of fact for the jury, and that tribunal has found against him.
Of the other specific assignments of error not covered by our conclusions above announced, it is to be said that they are not argued in the briefs of counsel, and are thereby waived. We may add, however, that we have examined all said assignments, and find nothing therein to indicate reversible error.
The judgment appealed from is, therefore,—Affirmed.