127 N.W. 83 | N.D. | 1910
The defendant was informed against by the state’s attorney of Adams county, for the crime of obtaining property by false pretenses. The case was transferred from Adams county to Stark county, and tried before Judge Burr and a jury. The trial resulted in a conviction. A motion for a new trial was overruled, and he was sentenced to imprisonment in the county jail of Adams county for a period of eight months, to pay a fine of $200 and the costs of prosecution, taxed at the sum of $500, and in default of said fine and costs, to be imprisoned in the county jail of Adams county for a further period of two months. The defendant appeals from the judgment and from the order denying his motion for a new trial. The information charges in substance that the defendant on the 7th day of October, 1908, at the county of Adams, etc., did commit the crime of obtaining property by false pretenses, committed in the manner following, to wit:
That at said time and place the said Charles E. Merry wilfully, unlawfully, and feloniously contriving and intending, knowingly and designedly by false pretenses to cheat and defraud one John G. Johns of his property and money, did wilfully, unlawfully, feloniously, knowingly, and designedly falsely pretend to the said John G. Johns that he, the said Charles E. Merry, was a duly authorized agent and representative of the Commercial Club of Dickinson, North Dakota, and that, as said agent and representative, he was authorized to solicit and
It will be observed that all the pretenses described in the informations, and alleged to be false, are: That the defendant represented that he was a duly authorized agent and representative of the Commercial Club of Dickinson, and that as said agent and representative he was authorized to solicit and collect money for immediate use in paying for the work of a preliminary survey and other necessary work of organization, in connection with the building of a proposed railroad, extending from the town of Williston to the towns of Dickinson and Hettinger, and the said John Gr. Johns, believing said false pretenses and representations, and being deceived thereby, was then and there induced by reason of the false pretenses and representations so made as aforesaid to deliver, and did deliver, to the defendant a check on the Adams County State Bank for $100 payable to the order of said defendant. The evidence on the part of the state, as far as material, is substantially as follows: A. Gr. Newman testified that he was a resident of Hettinger, -vice president of the first National Bank of that place, first met defendant in the bank. He was brought in there and
On a cross-examination witness testified that he was well acquainted with Newman, that his reputation and standing with the business men in the town were good; might not have entered into negotiations with, defendant if Newman had not been with him. The fact that Newman introduced the defendant to witness entered into the inducement to take part in the transaction, and it certainly had some influence in. inducing witness to take stock, as Newman was a man of good standing. The sole inducement was that the defendant stated that he was. a representative of the Dickinson Commercial Club. If Newman had not been with him, witness would have had grave doubts about entering into the transaction. Witness believed the enterprise was going
On recross-examination witness testified that he was not acquaint
. • L. M. Anderson, assistant cashier of the Adams County State Bank, testified as to cashing the check.
W. R. Everett testified that he was secretary of the Dickinson Commercial Club, knew the defendant; that the records of the proceedings ■of the Dickinson Commercial Club did not show that the defendant was at any time employed as agent and representative of the Dickinson Commercial Club, to solicit funds and collect money for the organization of the proposed railroad or authorized to act for the club. On cross-examination he testified that he did not attend all the meetings, there was some discussion at some of the meetings in regard to promoting and organizing a railroad running south from Dickinson. It was discussed at more than one meeting. Did not know whether the minutes showed all the discussions in regard to the railroad at the club.
John Yanderlass testified that he was president of the Dickinson Commercial Club from the fore part of May, 1908, to the fore part of May, 1909. That defendant was not employed or authorized on October J, 1908, to act as agent and representative of the club, to solicit funds and collect money in connection with said proposed railroad. On cross-examination he testified that there were many matters discussed at the club of which no record was made.
E. A. Einch testified that he met defendant October 8, 1909, at Lemmon, South Dakota. That defendant represented that he was organizing a railroad from Williston to Dickinson and Hettinger, and wanted a few local stockholders on South Dakota, two or three, and would like to get them from Lemmon. That they needed two or three local men to help complete the organization in South Dakota territory. That the road would be built from Rapid City north through Dickinson and to Williston, and then probably a branch line from Dickinson to either Hettinger or Lemmon. In all probability to Lemmon. He presented witness with a document or paper, if witness re-’ membered rightly, that had the commercial club heading of the Dick
E. C. Barry testified tbat be knew defendant for a number of years. Tbat defendant requested 'him not to say anything about defendant, and be would see him later. Defendant told witness tbat be, defendant, was agent and representative of tbe Dickinson Commercial Club, authorized to solicit and collect funds in tbe matter of tbe promotion of a railroad. Witness Newman, recalled, testified tbat later in the day of October 7, defendant tried to sell Newman some railroad stock. Witness Newman told defendant be did not know him, did not know what was back of tbe railroad, and did not want to put bis money in until be knew what be was doing.
Elmer Tew testified tbat be was sheriff of Adams county, tbat defendant escaped from tbe jail. On cross-examination, however, be admitted tbat bail bad been accepted by tbe justice, and an order given to witness to discharge defendant, but be, witness, did not discharge him.
Arthur J. Hancock testified tbat after Newman introduced defendant to Dr. Johns, be, defendant, told Dr. Johns tbat he, defendant, was a representative and agent of tbe Commercial Club of Dickinson, and bad a railroad proposition to make to him, and Dr. Johns asked hiTn if that was a joke or was it on tbe square. Defendant said it was on tbe square.' On a cross-examination witness testified tbat be beard
A. Gr. Brown, the magistrate before whom defendant had his preliminary examination, testified that the defendant was in a normal condition of mind, and talked freely and willingly at the examination. Said he was an agent and representative of the Dickinson Commercial Club on October 7, 1908. All the testimony of the witness Brown was objected to as incompetent, irrelevant, and immaterial, and inadmissible under the allegations of the information, and that the witness had not shown himself competent to testify as to the mental status and physical appearance.
P. D. Norton, state’s attorney, testified that he had a talk with defendant a day or two before the preliminary examination, and defendant told him, Norton, that he need not bring any of the officers of the Commercial Club of Dickinson as witnesses, as he, defendant, would admit that he was not agent or representative of the Dickinson Commercial Club at any time, and did not claim to be. This evidence was 'admitted over the objection of the defendant. The evidence of Pinch was admitted over the objection of the defendant.
John Bissback testified on the part of the defendant that he was county treasurer of Stark county, signed the articles of incorporation, and was associated with the defendant in the organizing of the company. Was a member of the Dickinson Commercial Club at that time. Articles of incorporation, signed by defendant, John G-. Johns, and five others, admitted in evidence, are recorded in the office of the secretary of state of the state of South Dakota.
Defendant assigns numerous errors, which he has grouped under four general classes:
1. Errors relating to the sufficiency of the proof to sustain the allegations of the information;
2. Errors relating to the admission of proof to sustain the allegations of the information;
3. Errors in the information; and
4. Errors in the charge.
To constitute the offense described in the Code and set forth in this
1. There must he an intent to defraud;
2. There must he an actual fraud committed;
3. False pretenses must be used for the purpose of perpetrating the fraud; and
4. The fraud must be accomplished by means of the false pretenses made use of for the purpose, viz., they must be the cause which induced the owner to part with his property; that is, that the false pretenses, ■either with or without the co-operation of other causes, had a decisive influence upon the mind of the owner, so that, without their weight, he would not have parted with his property. Com. v. Drew, 19 Pick. 179; People v. Haynes, 11 Wend. 557; Re Snyder, 17 Kan. 542, 2 Am. Crim. Rep. 228; State v. King, 67 N. H. 219, 34 Atl. 461; People v. Herrick, 13 Wend. 87.
The defendant strenuously contends that there is no evidence of a fraudulent intent on the part of the defendant, no evidence that he ■did not know that he was not authorized to solicit subscriptions, and no evidence that Dr. Johns, the complaining witness, was in fact defrauded out of his money, no evidence that Dr. Johns, parted with his property or money upon any false pretenses. If the defendant is correct in his contentions then the judgment should be reversed. The question of intent is always one for the jury under proper instructions of the court. The jury may infer the intent from all the facts in the case. An intent on the part of the defendant to defraud is an essential element, sometimes said to be the gist of the offense, and the burden is upon the state to establish it beyond a reasonable doubt. As a general rule, all the relevant circumstances at the time of, and accompanying or surrounding the transaction in question, are proper to be •shown in evidence. It is generally held that the fraudulent intent of the defendant may be inferred from the falsity of the pretenses and the attending circumstances. Elliott, Ev. § 2975; Mayer v. People, 80 N. Y. 364; People v. Herrick, 13 Wend. 87; People v. Baker, 96 N. Y. 340; Trogdon v. Com. 31 Gratt. 862.
Before a person can be convicted under our Code as to false pretenses, it must be proved that he intended to cheat or defraud; that he made the false pretenses designedly to obtain property and that he
In Wharton’s American Criminal Law, 6th ed. 649, it is said: “Where the scienter or quo animo is requisite to, and constitutes a necessary and essential part of the crime with which the person is charged, and proof of such guilty knowledge or malicious intention is indispensable to establish his guilt in regard to the transaction in question, testimony of such acts, conduct, or declarations of the accused as tend to establish such knowledge or intent is competent, notwithstanding they may constitute in law a distinct crime.”
3 Greenleaf bn Evidence, § 15, has the following: “In the proof of intention it is not always necessary that the evidence should apply directly to the particular act with the commission of which the party is charged, for the unlawful intent in the particular case may well he inferred from a similar intent proved to have existed in other transactions done before or after that time.”
In Stephen’s Digest of Evidence, May’s ed. p. 56, the rule is laid down as follows: “When there is a question whether a person said or did something, the fact that he said or did something of the same sort on a different occasion may be proved, if it shows the existence on the occasion in question of any intention, knowledge, good or bad faith, malice, or other state of mind, or- of any state of body or bodily feeling, the existence of which is an issue or is deemed to he relevant to the issue.”
See also 1 Greenl. Ev. §'53, and notes.
In Weyman’s Case, 4 Hun, 511, Judge Daniels lays down the rule as follows: “Where goods have been obtained by means of fraudulent representations, it has been held that as the intent is a fact to be arrived at, it is competent to show that the party accused was engaged in other similar frauds about the same time; provided that the transactions are so connected as to time, and so similar in their other rela
The crime of false pretense is not made out by simply showing that the representations charged in the indictment were made, and that they were false, and that the defendant knew them to be false. The jury, from these facts and from all other facts, may infer the fraudulent intent; but the law does not presume the fraudulent intent; that is to be found as a fact by the jury, and is not an inference of law.
Trogdon v. Com. 31 Gratt. 862, contains a very full discussion of the reasons for the admission of evidence of other offenses of the same character as the one on trial, and says: “Now, upon a prosecution for obtaining goods by false pretenses, the indictment must aver the fraudulent intent, and the commonwealth must prove it. It is the very gist of the offense. . . . It is not sufficient that the accused knowingly states what is false. It must be shown his intent was to defraud. Such intent is not a presumption of law, but a matter of fact for the jury. Being a secret operation of the mind, it can only be ascertained by the acts and representations of the party. A single act or representation in many cases would not be decisive, especially where the accused has sustained a previous good character. But when it is shown that he made similar representations about the same time to other persons, and by means of such representations obtained goods,, all of which were false, the presumption is greatly strengthened that he intended to defraud.”
We think under the foregoing authorities the evidence of Einch,. Barry, and Newman was properly admissible as to the intent of the-defendant, and the question of defendant’s intent under the evidence, were properly submitted to the jury. Evidence that defendant was not the agent or representative of the Dickinson Commercial Club, and was not authorized to solicit subscriptions for the preliminary survey and organization of the railroad, was introduced on the part of the state, and the question was submitted to the jury under proper instructions. The evidence of Brown and Norton was properly admitted as admissions by the defendant. The more serious .question is: Did the alleged false pretenses have so material an effect in inducing the prosecutor to part with his property that without their influence upon his mind he would not have parted with it? The evi
As to the treasury stock he testified as follows:
Q. When was this stock to be delivered to you ?
A. Well, it was supposed to be delivered at any time I suppose it was demanded; I signed the articles and there was to be a meeting at some time, at some further date, as really I did not invest so very strong.
It is plain to be seen that if he gave defendant the $100 check in payment for the stock, and that the alleged false representations that defendant was a representative of the Dickinson Commercial Club, and as such representative was authorized to solicit subscriptions, etc., was not the moving cause, and that he would have given the check without those representations, then the appellant cannot be convicted.
In State v. Green, 7 Wis. 676, cited by defendant, Green was indicted for defrauding Wright & Paine out of a check for the sum of $251.25. He was introduced to Mr. Wright in Madison, Wisconsin, by a man named DePorest, who was a man of standing in the community. Green stated that he was a wholesale grocery dealer in New Orleans; that he was traveling about the country partly for pleasure and partly on business, and that he was short of funds and wished to draw his draft on Clark, Dodge, & Company, bankers in New York city, for $250, and that he had money with Clark, Dodge, & Company sufficient to pay the $250. He drew the draft on Clark, Dodge, &
In State v. Dexter, 115 Iowa, 678, 87 N. W. 417, the court says: ■“It may be, as suggested by appellant, that Brown & Son did not rely solely on the representations concerning the ownership of the stock. Other matters may have been taken into consideration. It was sufficient, however, if it appeared that but for such representations the sale would not have been made.” See also 19 Cyc. Law & Proc. p. 407, and cases cited.
In the case at bar Dr. Johns testified that he believed the representations made by the defendant that he was a duly authorized agent and representative of the Commercial Club of Dickinson, and that as said agent and representative he was authorized to solicit and collect money, etc., and that he gave defendant the check in question, because of these representations, and would not have given it to him but for these representations. It is true that this testimony was given by Johns in answer to several leading questions, asked him by the state’s attorney. None of these questions were objected to on the ground that they were leading, and appellant cannot raise this question for the first time in this court.
It is claimed by appellant’s counsel that it was not sufficiently shown by the evidence offered by the state, that the prosecuting witness, Dr. Johns, was in fact defrauded. That the evidence does not show that he suffered any loss of property when he accepted, in payment of the check, stock in the proposed railroad. It is true that there is no evidence of the value of the stock. Neither is there any evidence that Johns could not have received the stock if he demanded it. In fact he testified that he supposed the treasury stock was to be delivered any time he demanded it, and that he was to receive ten shares of common-stock later.
Under § 9246, Eev. Codes 1905, the offense is complete when the defendant, with intent to cheat or defraud another, obtains from such person any money or property.
The fraud is complete when such person parts with his property. Wharton, Crim. Law, 9th ed. § 1200; Com. v. Mason, 105 Mass. 163, 7 Am. Rep. 507; Com. v. Coe, 115 Mass. 481; Com. v. Wilgus, 4 Pick. 178; State v. Jamison, 74 Iowa, 613, 38 N. W. 509; People v. Haynes, 11 Wend. 557; People v. Ward, 145 Cal. 736, 79 Pac. 448;
Wharton, § 1200, supra, says: “When the goods have been obtained, only an intent to defraud need be proved, and not an actual defrauding; and hence it is not necessary to charge loss or damage to the prosecutor, the offense being complete when the goods are obtained by false pretenses, with intent to cheat and defraud.”
People v. Wakely, 62 Mich. 297, 28 N. W. 871, relied upon by the appellant, is not in point. In that case the charge was that the defendant, Hudson J. Wakely, with intent to cheat and defraud one Margeret J. Schild, and fraudulently obtain from her one buggy, represented that he owned in fee simple, clear and free from all liens, 120 acres of good farming land, worth $6,000, and represented that his brother, John Q. Wakely, owned 160 acres of land, free and clear of all liens, and was worth at least $25,000, and that said representations were made to induce said Margeret Schild to take the promissory note for $150 of the two Wakelys in payment for said buggy. The testimony showed that the defendant owned the land, and that it was worth $6,000. The testimony did not show what John Q. Wakely was worth. No attempt had been made to collect the note. The court held that no actual fraud was shown, and that the defendant could not be convicted, as no person was defrauded.
Defendant contends that the essence of the crime of obtaining money or property by false pretenses is that the false pretenses should be of a past event, or of a fact having a present existence, and not of something to happen in the future. This is unquestionably good law, but does not apply to the facts in the case at bar. The offense — the false pretenses charged in the case at bar — is that the defendant represented himself as the agent and representative of the Dickinson Commercial Club, and as such agent and representative he was authorized to collect money, etc. The mere fact that it was to be used in paying the cost of a preliminary survey, and for the organization of the railroad company, would make no difference. It would not help defendant even though he used the money to pay the cost of the preliminary survey, and the organization of the company. The fact that he obtained the check by false representations is the gist of the offense.
In People v. Lennox, 106 Mich. 625, 64 N. W. 488, in the second
The witness Barry, hereinbefore mentioned, who was sheriff of Adams county at the time of the arrest of defendant, testified to an alleged attempt of defendant to escape. This testimony, and the testimony of the witness Tew, was objected to by the defendant, and the objection overruled. This evidence was properly admitted. Elliott, Ev. 4th ed. § 2724.
The evidence of the witness Hancock was properly admitted. He testified he overheard the conversation between Dr. Johns and the defendant, and his testimony tended to corroborate the evidence of Dr. Johns.
From what we have hereinbefore stated, it follows that the court did not err in denying the motion made by the defendant at the close of the state’s case, to advise the jury to return a verdict for defendant. Sec. 10104, Bev. Codes 1905, provides a judgment that the defendant pay a fine and costs, may also direct that he be imprisoned until both the fine and costs are satisfied, specifying the extent of the iin
Finding no prejudicial error in the record, the judgment and order appealed from are affirmed.
