182 P. 110 | Mont. | 1919
Lead Opinion
delivered the opinion of the court.
This appeal is from a judgment of conviction of the confidence game, or “bunco,” as denounced in section 8684 of the Revised Codes.
The defendants having decided not to assume the risk of going upon the stand in their own defense, the case rests upon the evidence adduced by the state alone, the substance of which is
“He asked me what bank I could give a check on, and I told him I didn’t have any money. He said it was immaterial, that he would take up the checks before they could go through the exchange; that ‘we would make this money on the bet because it was sure, and there was no danger of the cheeks going through. ’ He asked me what bank to make the cheek on, and I told him to make it out to the Fargo National Bank. He filled it out and didn’t ask me to sign my name. He signed the cheeks and went down to the exchange with the money and those checks and was supposed to place it on a horse-race. After a while he came back and waited for a few minutes.” Moran was then sent down to get the winnings, and “after a while came back and said we had won the money all right,” but that when the man was handing out the money'Moran requested the return of the checks, and was told by a man at the window of the exchange that “those checks were foreign cheeks and would have to go through to see
On cross-examination, the complaining witness testified that he had told Moran he had a car and had a notion to drive it on the trip to Canada, if the duty was not too much; that Moran said if he would drive up, “he wo%uld make it worth while to go along” ; that he put confidence in Burke, or he would not be here; that the Breeders’ Association kept Burke informed as to what horses to bet on; that Burke said there was not a chance to lose; that Moran said, “I don’t need to- be afraid,” that Burke was all
Homer Robinson, a deputy sheriff, testified that he got the grip, which was introduced in evidence, from the chief of police or the sheriff, he did not know which, at Fargo, North Dakota; that the first time he ever saw the defendants was in the sheriff’s office there; that Burke claimed the grip and its contents; that coming home on the train Burke wanted to take some things out of the grip; that there were “some particular cards marked that he wanted to take out of the grip ’ ’; that he had known Burke for about three years; that he had been residing between Power and Great Falls during that time, a good share of the time in the latter place; that he had known Moran hy sight, but had no personal acquaintance with him; saw him around the Fair Hotel in the spring and summer of 1917, with his wife and child; and that Moran and a man by the name of Simmons were the owners of the Fair Hotel, Moran acting as clerk at the time of the happening of this offense.
The scheme is so old that its origin is lost in antiquity. Its
The statutes of many of the states are directed against, and are intended to-reach the class of offenders, now well, though somewhat colloquially known as “confidence men” who obtain the money of their victims by means of, or by the use of, some trick or representation designed to deceive. The very essence of the crime is that the injured party must have relied upon some false or deceitful pretense or device and p'arted with his property. (State v. Pickett, 174 Mo. 663, 74 S. W. 844; State v. Wilson, 223 Mo. 156, 122 S. W. 701.) In Illinois it is held that any scheme, whereby a swindler wins the confidence of his victim and swindles him out of his money by taking advantage of such confidence, constitutes a “ confidence ’ game. ” (People v. Poindexter, 243 Ill. 68, 90 N. E. 261.) People v. Miller, 278 Ill. 490, L. R. A. 1917E, 797, 116 N. E. 131, decided by the last-named court as late as 1917, upheld a conviction of one Lodavine Miller, under a statute similar to the one under discussion, by the use of a promise of marriage as a means of perpetrating the bunco or confidence game. The court said: “The contention cannot be maintained that Lodavine was merely guilty of the breach of a marriage contract. Her breach of that contract was a mere incident of her false and fraudulent scheme to obtain
People v. Strosnider, 264 Ill. 434, 106 N. E. 229, was a case similar in many respects to the case at bar. There, one Kirby, a banker, was induced to put up $20,000 for the ostensible purpose of betting it on a horse-race. The bet was to be made at an alleged pool-room in the city of Chicago, the victim being inducted into a room having the appearance of a regularly equipped pool-room, the evidence, however, showing the appliances to have been spurious. There, as here, the money was lost. The defendant was convicted of working the confidence game and swindling Kirby out of $20,000. The pool-room in the instant case seems to have been a pool-room of the mind, for the record is silent concerning its location or description. In sustaining the conviction, the supreme court of Illinois, in the case above, said: “The contention that the verdict is not sustained by the evidence is based upon the assumption that there is no proof that any of the representations made by the plaintiff in error to Kirby which induced Mm to bet $20,000 on ‘Lucky George’ were false, and that consequently the corpus delicti of the crime with which plaintiff in error was charged was not proven. It may be conceded that there is no direct evidence showing the falsity of the statements and representations made by plaintiff in error to Kirby to induce him to bet on ‘Lucky George’ at the alleged pool-room, and that it was necessary to prove the falsity of such statements or representations in order to establish the corpus delicti of the crime; still, it was not necessary to prove such matters by direct evidence. The corpus delicti may be proven by circumstantial evidence. (People v. See, 258 Ill. 152, 101 N. E. 257; People v. Holz, 261 Ill. 239, 103 N. E. 1007.)”
In Powers v. People, 53 Colo. 43, 123 Pac. 642, the supreme court, construing a statute practically identical with ours, said: “The offense aimed at by the statute is obtaining money by
The evidence before us conclusively shows that the prosecuting witness did not part with his money until his. confidence had been firmly placed by a series of incidents ingeniously staged to that end, among which were these: That Burke had given a bond for $30,000 for the faithful handling of large amounts of money for the Breeders’ Association, and was otherwise fortified with credentials calculated to convince a mind much less verdant than Adair’s; that the Breeders’ Association, whose trusted agent he pretended to be, was engaged in the laudable enterprise of breaking up pool-rooms by winning from them amounts so large that they could not withstand the losses, and donating part of the winnings to charity; the scene in the Spokane bank with its cashier, a “judge,-” and Burke (thebentral figure) with a “big roll of bills” in his hands; the receipt of a “sure tip” from the Breeders’ Association in the shape of a Western Union telegram indicating for that day the winning horse; and Burke’s statement that it was a legitimate transaction and that they could not lose. From the record it is clear that the defendants well understood that the success of their designs depended entirely upon their ability to so arouse the cupidity of their victim as to unseat his business judgment, and that this could only be accomplished hy screening from the victim throughout the many elements of chance their scheme entailed. Not until after the
Our conclusion therefore is that the conviction of defendant Burke- is sustained by the evidence and should be affirmed.
As to Moran: Had the prosecution negatived the existence of a pool-room in the city of Great Falls, and the genuineness of the message purporting to have been obtained from the Western Union telegraph office — the telegram upon which Adair acted' in intrusting his money to Burke — iVe might have reached a different result. In the absence of this proof, however, we are of the opinion that the evidence is not sufficient to establish beyond a reasonable doubt that Moran was the confederate of defendant Burke, and therefore as to him the judgment should be reversed and the cause remanded, with directions to grant a new trial. It is so ordered.
Concurrence Opinion
I concur in the result, though I think, with Mr. Justice Holloway, Mr. Justice Cooper fails to distinguish clearly the crime of practicing a confidence game from that of obtaining money or property by means of a false and fraudulent pretense. The two crimes are wholly distinct. (Rev. Codes, secs. 8683, 8684.)
I agree with the result reached, but not with all that is said in the opinion. Much of the discussion
There is evidence in the record, in addition to that stated above, which, with the evidence narrated, is sufficient in my opinion, to establish the guilt of defendant Burke.