State v. Morgan

| Tenn. | Sep 15, 1902

Mr. Justice Neil

delivered the opinion of the Court.

Tbe defendant was charged in tbe circuit court of Hamilton county, under an indictment containing two counts — one for obtaining county warrant No. 41,311, of that county, under certain false pretenses; and tbe other for larceny of the same warrant on tbe - day of May, 1900. His honor, tbe circuit judge, quashed tbe indictment, and tbe State appealed in error.

Tbe first count may be analyzed as follows: (1) Tbe averment as to tbe pretense is that tbe defendant, a constable of Hamilton county, represented to the county that be, as such constable, was entitled to Hamilton county ivarrants from tbe county, of tbe value of one hundred and sixty-five dollars, fur services rendered as constable for tbe county in small offense cases submitted by defendants in State causes, and tried by and before Robert Wallace, a justice of tbe peace of Hamilton county. (2) Tbe averment upon tbe point of tbe false and fraudulent character of these pretended bills of cost — that is, tbe negativing of the truth of tbe pretenses and the defen lant’s knowledge of their falsity — is as follows: “The said I. C. Morgan, constable aforesaid, was legally entitled to Hamilton county warrants of tbe value of forty-eight dollars, of good and lawful money of tbe United States, upon legitimate cases where tbe defendants were legally tried and submitted under tbe small-offense law by and before Robert Wallace, justice of the peace, aforesaid; but be was not entitled to receive from Hamilton county Hamilton county warrants of tbe value of one hundred and sixty-five dollars, of good and lawful money of tbe United States, and this tbe said I. C. Morgan well knew. On tbe day aforesaid tbe said I. 0. Morgan, constable, drew from Hamilton county Hamilton county warrant No. 41,311, which warrant included and was for costs taxed in favor of I. C. Morgan upon false, fraudulent, forged and illegal bills of cost to tbe amount of one hundred and seventeen dollars, of good and lawful money of tbe United States, and also legal costs taxed to the credit of said I. C. Morgan to tbe amount and of tbe value of forty-eight dollars, to which tbe said I. C. Morgan was entitled.” It is thus perceived these bills of cost amounting to $165 (less $48, of lawful costs) are averred to liave been “false, fraudulent, forged and illegal,” and they are subsequently characterized in the indictment as “false pretenses.” (3) As to the fraudulent intent, the averments are that he “did unlawfully, feloniously, willfully, fraudulently and falsely represent to Hamilton county that he, as such constable, was entitled,” etc., “which false, felonious and fraudulent representations the said I. C. Morgan well knew, at the time he made them, that they were false, and made for the purpose of deceiving and obtaining from Hamilton county the following personal property, to-wit,” etc. Again: “The said I. C. Morgan _well knew he was entitled to Hamilton county warrants only to the value of forty-eight dollars, and he did obtain the property aforesaid under false pretenses.” (4) The averment as to the property obtained is that it consisted of “Hamilton county warrants of the value of one hundred and sixty-five dollars;” and again, “Hamilton county warrant No. 41,311, ... of the value of one hundred and sixty-five dollars.” (5) As to the reliance of Hamilton county on the said fraudulent pretenses, and defendant’s procurement of the county warrant thereby, the averment is: “And by reason of the said unlawful, felonious, false and fraudulent representations, and said illegal, false and fraudulent bills of costs, the said I. C. Morgan did, on the day aforesaid, and in the county aforesaid, become possessed of said personal property, the property of Hamilton county, which he, the said I. C. Morgan, unlawfully, feloniously and fraudulently converted to his own use.”

The indictment is very inartificially drawn, all of the several elements above mentioned being mixed together, and several of them being repeated; but we think it is clearly sufficient as to the points 2, 3, 4 and 5. The only question, in our judgment, is whether the false pretense is sufficiently stated. This may be regarded from three standpoints, and is, in our judgment, sufficiently definite from either one. It may be said that the false pretense consisted in Morgan’s representing to the county that he was entitled to one hundred and sixty-five dollars in warrants for services performed by him as constable in small-offense cases tried before Robert Wallace, justice of the peace, when in fact he was entitled to only forty-eight dollars in warrants for services performed. The pretense here would be that he had performed services to such an extent in the character of cases referred to as under the statutory fee bill would amount to one hundred and sixty-five dollars, when in truth he had performed services which, under the fee bill referred to, amounted to only forty-eight dollars. Or, it may be said that the pretense was that he had performed certain services aggregating under the fee bill one hundred and seventeen dollars in cases before Robert Wallace, justice of the peace, when in fact he had not performed such services. It is a different way of stating the same thing. In each case the method of proof is the same. Or, again, it may be said that each separate frandnlent bill of costs was a false pretense. In this view the proof of any one of them, and the obtaining of the property thereby, would be sufficient to sustain a conviction. It is said in Britt v. State, 9 Humph., 31, 42, that a single pretense proved as laid, though joined with others is sufficient to support the indictment.

It is urged in defendant’s brief that “the forged bills of costs are not set out as is required by law;” citing Wallace v. State, 2 Sh. Tenn. Cas., 616. This, we think, is an incorrect application of that authority. There the defendant was indicted, it is true, under the same section of the Code as was the present defendant, but under that clause of it which denounced the procurement by any false pretense, with intent to defraud, of “the signature of any person to any written instrument the false making of which is forgery.” Code, section 6568. It was said that the instrument procured, not the false pretense by which it was procured, should be set out, so that the court could determine whether it was a written instrument, the false making of which would be forgery.

Moreover, without reference to the authority mentioned, it was not necessary in any view that the bills of costs alleged to have been forged, and to have constituted the false pretense or false pretenses, should have been set out in the face of the indictment in the kind of case we have before us. They are sufficient] y indicated in the indictment to prevent any mistake as to the bills intended. They are described as bills of costs for services purporting to have been rendered by the defendant, as constable of Hamilton county, in small-offense cases tried and submitted by defendants in State cases before Robert Wallace, a justice of the peace of Hamilton county, prior to the issuance of the warrant by the county. They are further described as aggregating one hundred and seventeen dollars, but we do not think this is material, as proof of any one of the illegal bills of costs, and that it operated as a part of the inducement for the issuance of the warrant, would be sufficient to sustain a conviction, under the rule stated in one of the preceding paragraphs. 9 Humph., 31, 42.

It is insisted that the indictment is not good, because the illegal bills of costs did not constitute the sole inducement to the county to issue the warrant, but that, on the contrary, it is shown on the face of the indictment that there were some legal bills of costs presented at the same time, and which constituted a part of the consideration of the warrant issued. This is not material. “It is not necessary to a conviction that the false pretenses should be the sole inducement by which the property in question is parted with. If they have controlling influence, it is enough, although other minor considerations operate upon the mind of the party.” 2 Whart. Cr. Law, section 2121. Tbe author cites numerous authorities in a footnote in support of the proposition.

It is insisted that the first count is bad for duplicity, hut this contention is not a sound one. From the analysis Avhich we have made of the count, it is seen that only one offense is charged — that of obtaining the county Avarrant by false pretenses.

It is said that no facts are averred showing that Ilamilton county was deceived, or could have been deceived, by the alleged false pretenses. We think the averment upon this subject is sufficient. The averment is, in substance, that the county warrant was procured by the presentation of fraudulent and forged bills of costs in a certain class of criminal cases. The presentation of forged bills of costs might mislead any person of ordinary prudence. The official of the county whose duty it was to issue the Avarrant Avould, as a general thing, justly presume that an officer presenting bills of costs Avas honest; and, further, if upon examination of the dockets he should find cases of submission — the kind referred to in the indictment — and bills of costs attached, he would not, in the ordinary course of business of the kind, deem it necessary to pursue the inquiry' Avith a view to ascertaining Avhether the defendants in those cases were fictitious persons, and the whole entry a forged or fictitious document. There is nothing upon the face of the indictment to indicate that a person of ordinary prudence would have had, or ought to have bad, grave suspicions, or any grade of suspicion,, aroused in Ms mind, with respect to the validity of the bills of costs referred to.

We are of opinion, therefore, that none of the objections to the first count are well taken.

We are of opinion that the second count also is good. Omitting the formal parts, it reads as follows: “That I. 0. Morgan heretofore, on the - day of May, 1900, in the county aforesaid, did unlawfully and feloniously, take, steal and carry away Hamilton county warrant No. 41,311, of the value of one hundred and sixty-five dollars of good and lawful money of the United States, the personal property of Hamilton county, against the peace and dignity of the State.”

This embraces the language of the statute, sufficiently describes the property taken, and gives the name of the owner from whom it was taken, and is therefore good. State v. Swafford, 3 Lea, 162; 1 Whart. Cr. Law, section 364.

That a county warrant may be the subject of larceny, we think there can be no doubt. Such a paper falls within the principle decided in Millner v. State, 15 Lea, 179.

We are of opinion, therefore, that his honor, the circuit judge, was in error in quashing the indictment, and the cause must be remanded for trial.