State v. Marshall, 77 Vt. 262

State v. Marshall

77 Vt. 262 | Vt. | 1905

Start, J.

At the close of the evidence, the respondent moved for a verdict of acquittal, for that the crime charged, if committed, was not committed in Vermont but in the State-of New York, and because the person personated had no interest in the check which the respondent procured of The O. L. Hinds Co., and the same was not intended for him. The-information, as amended, charges that Joseph H. Marshall of Burlington in the county of Chittenden, on, to; wit, the first day of October, 1903, at said Burlington in the county of Chittenden, feloniously, unlawfully and designedly, did falsely personate one Joseph H. Marshall of Atlantic, Iowa, and represent himself to The O. L. Hinds Co., a corporation organized and existing under the laws of the State of Ver*268mont, with main office at Burlington, Vermont, to be the said Joseph H. Marshall of Atlantic, Iowa, and thereupon, did then and there to- the said The O. B. Hinds Co. falsely assume the name and person of the said Joseph H. Marshall of Atlantic, Iowa, by means of which false assertion and pretence the said Joseph H. Marshall then and there unlawfully, knowingly and designedly, fraudulently received of The O. B. Hinds Co. a certain order for money cofrimonly called a bank check, which said bank check was dated on the 21st day of September, 1903, and drawn on the Howard National Bank to the order of Joseph H. Marshall, for the sum of one hundred dollars, and signed, “The O. Bi Hinds Co., O. B. Hinds, President,” which said bank check was of the value of, to wit, one hundred dollars, the monies and goods and chattels of the said The O. B. Hinds C'o-., which was then and there by the said Tire O. B. Hinds Co. intended to be delivered to- the said Joseph H. Marshall o'f Atlantic, Io-wa, the perso-n so- falsely personated, as aforesaid, with the intent of him, the said Joseph H. Marshall, to fraudulently convert the same to- his own use, against the will of the said The O. B- Hinds Co1., contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the State. This information sufficiently charges an offence under V. S. 4960, which provides, among other things, that a person who- designedly by false pretences -or by a privy or false token and with intent to- defraud, obtains from- another person mo-ney or other property, shall be imprisoned in the state prison not more than ten years, or fined not more than one thousand dollars.

The false personating of another, for the purpose pf fraudulently obtaining property, is a false pretence, and, if a perso-n b-y so personating another obtains property, he does so by false pretence, within the meaning of the statute above *269referred to; and, under an information charging the obtaining of property by falsely personating another, one may be convicted for obtaining property by false pretences, for he thereby obtains property by false pretences. In 2 Bishop’s New Criminal Law, 152, it is said: “If one represents himself to be another person, whereby he accomplishes a cheat, his visible presence is a token, which if false, is a false token. Indeed a false personation is a false pretence within statutes prevailing everywhere.” In Commonwealth v. Drew, 19 Pick. 179, it is held that the assumption of a fictitious name is a false pretence within the 'meaning of a statute which provides, that all persons who knowingly and designedly, by false pretence or pretences, shall obtain from, any person or persons money, goods, wares, merchandise or other thing, with intent to cheat or defraud any person or persons of the same, shall on conviction be punished as in the statute is specified. The information being sufficient to justify a conviction upon evidence showing that the respondent procured the check from The O. L. Hinds Coi. by false pretences, and the evidence having such tendency, the fact that Joseph H. Marshall of Atlantic, Iowa, had no 'connection with the check, and that the same was not intended for him, unless he was the respondent, if such was the fact, was immaterial, and notwithstanding* such fact, the respondent could be rightfully convicted, under the information, of the offence of obtaining the check by false pretences, contrary to the provisions of V. S. 4960. Nor is the fact, that, if it had appeared that Joseph H. Marshall of Atlantic, Iowa, was interested in the check, and that the same was intended for him, the respondent might have been convicted o’f an offence under V. S. 4959, which provides, that a person who falsely personates or represents another, and in such assumed character receives money or other property intended to be delivered to the party so> personated, with intent *270to convert the same to his own use, shall be imprisoned iñ the state prison not more than ten. years, or fined not more than five hundred dollars, or both, material; for, as we have seen, the obtaining of property by falsely personating- another is obtaining property by false pretences, and, if the state showed that the respondent by such pretences received property intended to be delivered to- the party personated, a conviction could be had under section 4959, and failing in this, the respondent could be convicted of an offence against section 4960, if it appeared that he obtained the property by falsely personating another. This last mentioned section, in effect, prohibits the obtaining of property by falsely personating another, and, if the property was not intended for the person personated, the offence is clearly punishable under this section, and under an information charging false personation; therefore, the respondent’s motion, in so far as it was based upon the fact that Joseph H. Marshall of Atlantic, Iowa, had no interest in the check and that the same was not intended for him, unless he was the respondent, was properly denied. Nor was the respondent entitled to a verdict of acquittal upon his claim that the offence, if any, was committed in New York and not in Vermont. The material false pretences by the respondent consisted in his falsely representing, in a letter written to The O. L. Hinds Co. from New York and received by the Company at Burlington, Vermont, that he was Joseph H. Marshall of Atlantic, Iowa, and in his coming to. Burlington, Vermont, as such Joseph H. Marshall and there, by his presence, after writing The O. T. Hinds Co. that he was Joseph H. Marshall of Atlantic, Iowa, and by his statements to The O. L. Hinds Co., personating said Joseph H. Marshall of Atlantic, Iowa, and thereby procuring from The O. T. Hinds Co. a check of the value of one hundred dollars.6 In so doing, the respondent did, in this State, by false pretences, obtain *271property contrary to the provisions of our statute, and did thereby subject himself to punishment in this State.

The respondent, in' the course of his correspondence with The O. L. Hinds Co., had referred them to' a book published by R. G. Dun & Co., for the purpose of showing the commercial rating of Joseph H. Marshall of Atlantic, Iowa, whom he represented himself to be; and The O. L. Hinds Co. had examined the then current book of Dun & Co. for the purpose of ascertaining the rating of Joseph H. Marshall. The book thus examined was received in evidence, subject to the respondent’s exception. The respondent having referred to the book of Dun & Co. for his commercial rating, without naming any particular book, it must be taken as a reference to a book which showed his then rating, which was the then current book, and The O. D. Hinds Co., having examined the then current book pursuant to- the respondent’s suggestion, for the purpose of ascertaining his commercial rating, that book was admissible in evidence for the purpose of showing What representation the respondent made respecting his commercial rating. He, in effect, made the rating which appeared in the book of R. G. Dun & Co. his representation .of his financial standing, and that rating was-admissible as a representation of his which was relevant to the issues in the case.

The State was allowed, subject to 'the respondent’s exception, to introduce in evidence a letter written by the respondent to The O. D. Hinds Co. subsequent to the procuring of the check mentioned in the information, in which he asked The O. L. Hinds Co. to send him a draft for one hundred dollars; and the draft was sent pursuant to the request. The other evidence tended to show, that the respondent by fraud procured from The O'. D. Hinds Co. a contract, by the terms of which they agreed to- advance money from time to time to him; that it was the respondent’s original plan and scheme *272to procure money from time to time from The O. E. Hinds Co. by fraud; and that the letter was written1 and the draft procured pursuant to' his original plan and scheme, and were so far connected with the fraudulent procuring of the check mentioned in the information that they were admissible for the purpose of lessening the probabilities of his being innocent of the crime charged in the information. Where the issue is the fraud or innocence of one in doing an act having the effect to mislead another, it is relevant to show other similar acts of the same person having the same effect to mislead, at or about the same time, or connected with the same subject-matter; and when several crimes form a part of one entire transaction, and have some connection with each other, as a part of the same plan or induced by the same motive, they may be shown to reduce the probability of innocence; and for this purpose, subsequent representations are equally admissible with prior ones, for it is the repetition of them that is significant, and a subsequent instance reduces the probability of innocence equally as well as a prior one, and the criminality of prior or subsequent acts or representations does not affect their admissibility, if they are otherwise relevant. Wigmo’re on Evidence, sections 216, 305, 320.

Judgment that there is no error, and that the respondent take nothing by his exceptions.