State v. Quinn

years four fortunate has been from the final order of presentation appeal lower court to a here, and it makes the situation all the remedy. more difficult to proper matter taxation of costs is likewise one which just They defies a solution. appellee guard- must be taxed to the ian and guardian ad litem; but no guardian matter to which they taxed, the costs are eventually paid by will guardian- ship estate, and again here regrettable the situation is but However, unavoidable. as to of printing record, the cost appellant for which asks sum per page, $3.00 total $852, only we think half may one of this taxed ease. All other papers in the satisfactorily printed case were per at page, $1.00 and we cannot sanction the amount asked for the record. judgments orders the district court are reversed cause remanded, proceed t-he with directions to in accord-

ance with the foregoing opinion. Beversed, with directions. —

All Justices concur. A. Quinn, appellant, appellee. Iowa, State of Thomas No. 323)

(Reported in 64 N.W.2d May 4, 1954. Hoegh, Attorney A. General,

Leo Raphael Dvorak, R. R. Attorney General, Assistant Ackley, County Richard M. Attor- Wapello ney, County, T. Bailey, County and Herman Assistant Attorney, appellant. for

Jones, Starr, Ottumwa, appellee. &White for presented question general J.-—-The

Mulroney, by Iowa from a directed verdict the State of appeal this obtaining partnership funds acquittal partner’s is whether obtaining money by the crime of false pretense constitutes 713.1, Code, record shows The pretenses defined section partners doing business, Harry Stanfield were defendant W. Sales, of Midwest Used Car Ottumwa. under the name “unlawfully, designedly, charged defendant indictment obtain pretense intent to defraud means with [did] Stanfield, Harry W. the sum of partner, $113.70.” from then purchased a car for defendant resale State’s case money own and he told Stanfield with his actually pay did car and paid he had more than he thereby draw on the induced Stanfield to a check defendant price purchase car, of the partnership funds excess falsely the amount received representing to Stanfield that he equal purchase. They for said was actual reimbursement were half of partners the sum the indictment is one and stated rights Actually partners equal the both had to alleged excess. account, part write on the bank checks merely State’s case is that on other occasions defendant wrote to him- cheeks on the account to himself reimburse purchased partnership, to self cars he turned over the actually and the checks he were in excess of the amounts drew expended personal had funds. he from his 1950, any person I. “If 713.1, Code, provides: Section * * * de- designedly pretense and with intent to false * * * fraud, im- money obtain from another shall be he * * prisoned money gist obtaining pre of the crime of false possession the to tenses is that victim transferred title wrongdoer pretenses. under the influence of the false As stated S., Pretenses, in 35 24: C. J. section “title as False well.as possession pass, although may only must title voidable.”

In 419, 427, 337, 339, Iowa 104 Loser, State v. 132 N.W. opinion pretenses owner states: “If the false induce intending part property, transfer title and with his both cheating by pretenses. If, on the possession, the crime false is pretense induces by fraud, trick, one hand, other false 849 merely possession with the part property, owner to of his there being pass title, no intent to party who receives it fraudulently took it with intent convert it to own use, the larceny.” crime is Chamberlain,

In 215 Iowa 273, 275, State v. 245 277, N.W. 278, language quoted the above from Loser case is and the “quite comment made that it the universal rule.” states Again Evans, in State v. 932, 937, Iowa 295 N.W. 433, “Appellant states: was accused of the crime obtaining property by pretenses. false Accordingly, it was prove that, essential that appellant the State when obtained the Otto, property from Addie pass she intended to title to him as a result of the transaction.”

II. obtaining money by The crime of pretenses from, differs to, but is somewhat akin embezzlement. In em property bezzlement the fraudulently appropriated by the person rightful has possession, who and in obtaining money by acquired the first instance pretense. means of S., the false 29 C. Embezzlement, J. section 1. general partners rule is that part cannot embezzle nership S., funds. The rule stated 29 C. J. Embezzlement, “In section is: providing, absence statutes so it may general be stated as a rule that cannot part embezzle * * nership funds *, joint because their or ownership therein.” Gary

In Assn., Northwestern Mutual Aid Iowa 1086, 1087, 53 N.W. approved we an instruction which stated: “* * * appropriation ‘the use or of the funds of the partnership # * * [by partner] private to his use would not constitute ” the crime of embezzlement, nor would be a criminal act.’ opinion (page this 31) is also question stated: “The is whether a member of a partnership guilty is of by embezzlement ap propriating the of funds private use. * *# In Eng. 6 Am. Encyclopedia 479, and Law, under the head of ‘Embezzlement,’ following: is the ‘Partners sustain the char principals of acter agents, well as a community have of in partnership effects, .and therefore cannot embezzle the they funds of the wrongfully which apply to their individual use without mutual consent. But this

850 immunity long partnership contract not attach as as the does pre- executory only, depends upon unperformed conditions fully sustained cedent.’ This of the law is announcement App. 522; namely, Napoleon State, cases 3 Tex. to, referred v. Reg. 332, Wortley, v. P. Brit. Cr. Cas. 6 Denison & —and partner- in the recognized rights consistent with ship assets.” Ky. 465, 468, 276 S.W. Commonwealth, 210 In v. Pierce >Xi “* * uniformly held that courts have

135, 136, it is stated: embezzling partner- offense of partner guilty cannot a be ship funds.” 48 N.W. Reddick, S. D. v. In State * “* * uniformly general held that a have the courts

it is stated: embezzling partnership property convicted cannot be partner * * [funds] 93, 94, P. 17 A. Sanders, 20, 24, 201 23 Ariz. State quotes from a number of cites and opinion 980, 982, the R.L. that: “A part conclusion the stated authorities, supporting all ner ^[*] # cannot rj^g citations guilty in' the embezzlement foregoing opinion include our funds Assn., supra. Mutual Aid Gary v. Northwestern crimes of embezzlement previously stated the III. As are somewhat allied. money by false obtaining against a can be termed crime Broadly stated, embezzlement money by pretenses can be termed title, obtaining false logic possession title. It would seem the against both crime embezzling guilty cannot be holding partner that a partner compel the conclusion that would partnership funds pre funds false obtaining guilty of cannot bé stated, why partner usually cannot reason, tenses. The because the relation embezzling partnership funds is guilty of partners. in all of the partnership funds ship places the title to charge is that one same reason exists when pretenses. No one can be partnership funds obtained money he owns. pretenses, guilty obtaining, Jur., Pretenses, section Am. False Pretenses, 24, page 667, S., section

In 35 C. J. False money guilty obtaining “A cannot be is stated: rule 851 money belonged partner- to the pretenses where the ” * * * ship rule. contrary to the stated holding find no cases above We one with holding obtaining money from are cases There part- has into a contract to form the accused entered whom Brown, v. Commonwealth nership principle. within this 33, P.2d Foot, N.E. 100 48 144, 1; 167 45 v. Mont. Mass. State money procuring the Usually the held the courts have and account of of which accused the the the the victim were not constitute crime because members would the partner the fund. State victim as an interest the retained Smalley, Mo., Woerth, Mo., v. 256 443; 252 S.W. v. S.W. State People App.2d 453, 456. But v. Cravens, 79 Cal. 180 P.2d pre- the State, case relied the of false the holds crime tenses can induced the established evidence the accused deposit money victim to in a account from which the accused money personal withdrew own for his use. point

cases are not State’s did not involve here for the case get scheme to partner- the victim place private funds ship account. Brown, 309, 315, 954, 957, P. Mont. 99

In State v. 38 larceny was victim and defense charge was money partner- obtained was were and the accused money. did ship The court held the evidence not establish opinion course agreement but larceny “A partner commit of the funds stated: cannot member, which he is a because of the every por- or ownership of such extends to Codes, property. (Revised 5469.) tion of sec. Each agent, principal combines in himself at the character of once may possess property, firm’s funds and dispose use, even them appropriating to the extent of to his own withdrawing from common fund.” them opinion, case is in a later Montana State cited

The above charge Mont. 48 P.2d where the Foot, pretenses, money under one of the defenses obtaining partners. defendant and victim were was that good would be under the author- recognize the defense seems to ity of Brown the case but was established, not for the court held the evidence was to a partnership. insufficient establish charge obtaining

One other case where the property was pretenses false and the defense asserted was that defendant and were property victim and partnership the was property Mendenhall, is State v. 24 Wash. 63 P. 1109. As in Foot, supra, State v. the court held the evidence did the partnership; hence, establish sustaining the cases the doc- trine that one larceny cannot commit goods the the in point. were held not directly English in point. ease Reg.

One old in Evans, Appeal, reported Court Criminal decided Cases, IX, pages 238, in Criminal Volume Cox’s a Here obtaining money by partner’s conviction of quotation quashed following the from the headnote shows point is in on the closely the case facts: how having improved lamp, “A. invented an entered into with B. carrying deed and C. for out and vending By subject subsequent of the invention. agreement verbal co-partners was to travel about obtain with his he orders for upon a lamps commission. On all orders received him (besides travelling personal expenses) such commission his paid was to to him as soon as he orders, be received the payable capital out of funds the partnership before falsely dividing any profits. By representing to co-partners his that he had obtained orders which his commission would 121.10s., he obtained from them that amount: Held, that, misrepresentation subject-matter as the would come under partnership accounts, misrepresenta- consideration such tion was not sufficient to pre- sustain indictment for false against A.” tenses Pollock, B., the course the above case C. fact misrepresentation

stressed the that the defendant’s “would gone into, be overhauled when accounts were and therefore guilty obtaining money by the defendant was not * * * pretenses.” subject precise

There to be cases on the seem but few where funds obtaining partnership partner was against the charge little need there is probably because This is pretenses. by false to secure by partner order pretense employment pros- involving the But all of the cases funds. larceny for embezzlement aof ecution here involved argues the statute point. The State funds are “obtain wrongdoer if committed this crime is merely states larceny from the any money, and this differs another” from phrase prop- “the 1950) employs the Code, which (709.1, statute (chapter statutes another”, and the embezzlement erty of “belonging another”, 1950) use such terms as Code, which partly property of an- or “which is another” “property of * ** person.” partly of such other Weaver, language in is not material. Justice The difference Clark, 302, in 141 Iowa court State v. speaking for the creates offense which the statute said: “The 119 N.W. money, goods, property only by obtaining committed can be by pretense of or false means some false belonging to another (Italics supplied.) token.” larceny, of embezzlement and false gist of the offenses property taking and conversion of the

pretenses is the felonious by taking They only in the means which the differ of another. authorities, with accomplished. All of the conversion is and going reasoning, partnership that a o'f a hold excellent larceny by proof of a guilty or embezzlement cannot be because, partnership assets as was taking and conversion of Gary case, supra, page at 32 of 87 stated our community and partners “The have a Iowa: they treated, partnership tn law are effects [and] prop- qualified sense, joint partnership of the in a tenants my per et having per therein tout.” erty, an interest taking Upon reasoning and conversion the same partnership assets, ac partner, going partnership, in a pretenses, cannot constitute the crime complished false pretenses. We feel obtaining property from another false pre of the rule authority support the statement reason quoted S., Pretenses, section viously from 35 C. J. False obtaining money by guilty to the effect that a pretenses money belonged partnership.— when to the Affirmed. JJ., Wennerstrum, Hays,

Oliver, Smith, Larson, concur. Oliver, JJ.,

Smith specially. concur J., Bliss, C.J., J., Thompson, Garfield, dissent. (concurring specially)- completely J. concur Smith, —I majority affirming opinion. But in view of the dearth of charge involving cheating by cases between deeper and the is well to delve into question relation at common law. doing emphasized by

The need for this is (un- the attack justified think) I made here the conclusion of the as a law “reproach to the and to courts which administer suggested it.” It precedents even “hidebound and un- legal “standing way realistic punishment fiction” in the wrongdoer” away” of a “swept and should be and that “no rule of stare decisis be allowed prevail.” should

I. on proposition advanced behalf of the State theory is based on a that the entity is an similar corporation, completely separate to a and distinct from indi- it. compose viduals who concept

The whole refutes suggested this analogy. we I (properly, think) Iowa have held partnership, dealing persons, its with legal entity. third is a may It may enter into contract. It sue and be sued. There is even a to right property separate limited own and distinct from partners. that of the individual But we held, have never nor elsewhere, find, has it been held far I can partners so as partnership litigate and can among themselves in courts law questions arising partnership out before there has been accounting. equity an “The court appropriate is the chief and tribunal for the growing settlement of all controversies out of partnership transactions as such.” Mechem’s Elements of Part- nership, Ed., Third section 148.

855 (1945) quite recently universally said: “It almost We * * * partners is not that a action maintainable between held law partnership transactions respect to unless there has been with accounting or settlement affairs.” Johanik an Drug Co., 679, Iowa 17 N.W.2d Des Moines v. S., Partnership, 109; Jur., 68 C. J. section 40 Am.

390. See 460, 465; Partnership, (Horn Crane on Partnership sections 1938) 310; Partnership (1917) Burdick on series book Third 330; Partnership, Elements Third Ed., Ed. Mechem’s sec 130-132, 148. tions quite generally

The cases and textbooks state the reason inability to be the law court’s inherent for doctrine to exam- accounts, adjust fact that in absence of an ine account- ing exist, action can be to no cause of shown and the further party plaintiff a cannot be fact that defendant at the time. same

Any analogy partnerships corporations between legal as legal relationship entities ends when we consider partners among with partnership. themselves and separate is not a entity usually joint They them. owners of its jointly possession, its entitled to sharers in profits, its liable obligations, agents in the conduct of its business. There is in a merging such a of relationship as to make partner- unthinkable action at law between them over ship transactions. respect bears no similarity to corporation. a relationship One is created contract, the being other an artificial created law. aptly “impossible

It has been said to be to determine whether the defendant is in plaintiff fact indebted partner until the partnership accounts are settled and the true parties standing has been ascertained.” Sey Malott mour, App.2d 101 Cal. 310, 311, P.2d citing Mechem’s of Partnership, Elements Second Ed., section 204.

This basic doctrine which forbids court of law enter- tain suits between and between them and part- their nership in growing matters out relation should charge against conclusive as to criminal obtaining property partnership by or from his pretenses. Every argument in support of the common-law rule can greater criminal law is invoked. force when the even

urged with prosecution that forbids criminal time-honored rule logical A assert that “victim” could not even alleged fraud an hardly mere “tech- be brushed aside as a court of law can in a nicality.” are to be penal rule statutes

II. is the invariable in be favor doubt must resolved strictly construed unnecessary. “In of cases seems accused. Citation one statutory. reprehensible No how matter Iowa all crimes are can penalty there legislative in may be, absence of act * * * against A prosecution. strict construction no criminal be recognized rule and burden State the State is the charged.” every to the crime prove element essential constitute to Hansen, 244 Iowa 55 N.W.2d 923. State v. (section 713.1, Code, 1950) Iowa condemns the statute The pretense. property “from another” We are obtaining of word “another” to include a asked to construe the “part.” entity of is a member—a which defendant Manifestly in this would a liberal construction favor of be State, legal personal in relation between view of close regard partnership property partner and expressly compelled A transactions. statute that business justified probably such construction would doubtful wisdom, relationship invade. view the would might impose on the crim- legislature well hesitate The procedure necessary (“be- complex inal court the determine doubt”) yond a whether a has defrauded reasonable certainly And we partner. or his fellow would every legislature if our rule of construction we held has violate language. it under this done remedy. no does not mean a has

This defrauded equity open to him. He can there have deter- doors the extent mined has fact been defrauded and whether he court cannot do. of his if loss shown. This the criminal loss majority opinion right. fully (concurring concur J. Oliver, specially) — I concurring Judge Smith, majority opinion and the dissenting opinion. to the will make some reference but is “a manifest failure of justice”; states this case It “the representations believed and defendant, upon by relied inexperienced partner” obtained funds; there frauds”; if gross of “the law must fold a “series its hands * * * * * * justice of certain technicalities because will be reproach denied”; a situation is a to the “such law and to the precedents courts”; legal “if hidebound and unrealistic fiction way punishment of of frauds such stand as the record they here, swept should aside.” shows foregoing language temper

The and other of like is based prosecution upon only. for the plea evidence Defendant’s not charge against of the was a denial him. In guilty accordance prosecution rules the proceeded with established first with its failed, discharged When case defendant was case. without introduction evidence for him. Under the circum- properly expressed the trial court stances no upon the ordering course, In the directed verdict it case. stated: “Of determining the court is here the words, facts. other I presume, as defendant, indicated counsel for the that their version these transactions would be other and different from the version submitted the State’s complete witnesses.” The of the statement trial court which printed covers about six pages thoughtful dispassionate ais questions review of the in- volved the case.

The dissent observes no such limitations. finds the facts case, upon based the evidence of prosecution only, proceeds publish to declare and guilty that defendant was gross frauds. This procedure novel important overlooks the circumstance, recognized by court, the trial that because the prosecution failed, defendant had no opportunity to offer evi- dence of his version of the facts. Under such circumstances a finding guilty defendant was charged the crime or of some appear other offense would not to be sound. There would seem good no reason justify which would pre- a court in thus judging branding case and a defendant. There ais dissent, statement in the the “situation is * * * * * reproach to the courts Where, here, the court

merely depart declines to from an established of law, rule there charge. to be no factual basis for such a dissent

would seem authority justify sufficient to it. cites no * * * joint-ownership theory “The has dissent states: majority now protected thieves and embezzlers. The long too cloak to cheats.” extends its protection to the

The statement relative thieves and em- merely general bezzlers is assault discussed rule larceny majority opinion, guilty cannot be statement, embezzlement funds. The other cheats”, “The now extends its cloak to should not be actually charging majority as that the of the understood court is in league may with cheats. The reader be assured dissent did the charge. not Nor intend such should the reference herein vigorous language dissenting of be as considered the implying that instrument should classified as dis- “caeoethes sentiendi.” majority J. (dissenting) am convinced the Thompson, —I

opinions confirm a justice, I cannot manifest failure of by defendant, by concur. It is shown the record that the representations inexperienced his believed and relied partner, funds partnership obtained for himself a share of the to which discloses he was not entitled. So far as the record there frauds gross is no denial of series of committed the a true, course, the the defendant entered defendant. is of plea if had reached guilty, may of have that he and it been point some or the he have denied offering evidence would dealing But all of we are the material for the State. evidence was with verdict directed. the record as it when the stood - that, granting all the State effect is majority opinions of the cheating proved true, crime was was still no there fold hands and must If, then, the law committed. joint owner- concerning say that technicalities because certain justice nothing, will be ship it can do partnership funds the the law and to reproach to a denied. Such a situation is run side justice should Law and it. courts which administer the say law is the must they men diverge side. When so re-ex- should different, the courts something justice law unrealistic precedents hidebound thinking. amine If their way punishment of frauds legal fiction stand the such swept prece- No here, they record should aside. shows dent, prevail when no rule of decisis should be allowed stare by following opposed reason is mischief will be done and manifest them.

The courts fond saying they will look for the sub- stance rather than for the form. I commend this rule to the majority in Quinn at case bar. and Stanfield entered into purpose for dealing in used automobiles. Quinn experienced was business; Stanfield not. Stan- capital, by field furnished working putting in $3500 of his money, Quinn own by loaning Quinn equal amount. for all, did all, buying cars, time or almost of used which hoped in turn resell. The record shows Quinn on purchased several occasions when firm he cars paid for funds, them with own but told Stanfield he had paid larger Through misrepresentations amount. he in- these pay- duced Stanfield to write cheeks on the account (Stanfield’s) able to him and from Stanfield his so obtained withdrawn, procured funds so considerably larger than was entitled share such he funds says to receive. This which situation criminal law cannot reach. only

The authority direct cited the majority quo is the tation from S., 35 C. J. False Pretenses, section 24. This state supported by ment of the law is in one citation permanent the of S., volume 35 C. J. State Foot, v. 100 33, Mont. 48 P.2d 1113. An examination of the ease shows the actual holding was there proven. was no partnership It cannot in point. be Two other eases now are under cited this note in (1954) pocket latest the part for 35 C. J. S. These cases are not referred to the ma jority. They Grumbles, v. are State 238, 100 S. C. 84 S.E. 783, Simmons, v. 531, State 209 C. opin S. 41 217. S.E.2d The ion short, regard in State v. Grumbles is and in to an indictment only for “breach of trust with says fraudulent intent” there could no if partners. be conviction the were two There is dictum in v. State Simmons which follows State v. Grumbles. Reference point. will made to it a at later None of the cases cited three 860 authority law in 35

as for the flat statement of the set out it. S., Pretenses, 24, supports C. J. in False section fact directly point in majority few cases concedes there are question none to us on at issue. In fact there are cited the and the which research has The defendant several discovered. may not rely holding one majority opinions upon cases ma- funds. The partnership be convicted of embezzlement of title that the jority principle the says'these are bottomed cannot partners, and one partnership is in all of the funds it then By analogy is guilty owns. of embezzlement of funds he pretenses obtaining guilty reasoned one cannot be already funds owns. he joint theory ownership partnership funds one is place proper matters,

which has its questions civil where partnership dealings parties indebtedness or other with third is, all, are But it than legal fiction, involved. after no more pursued point making as such should not be to the it gross definitely In fact, a cloak for cheats. in Iowa we have jointly belong part held does not to the individual ners, separate legal entity. partnership “The but as belong separately partners, individual property does not entity.” Wiersma, 551, v. but to distinct Jensen Iowa R. To is N.W. 4 A. L. the same effect State 43, 46, Pierson, 204 Iowa 216 N.W. from which entity, from its mem quoted: “The was an distinct partnership, and deposited belonged to the bers. The funds being part one of bank latter not to the director [the belonged, funds interest The ultimate ners]. To director member. than the greater part, to others or less interest, deposit the extent their of funds (Italics supplied.) belonging to him.” negative thought, These cases which on based, opinions apparently that each has such title partnership property he cannot be guilty in the already it. obtaining he owns because definitely funds The rule Iowa established legal entity; separate State belong to the principle realistic that the Pierson, supra, also enunciates the v. partner individually, but belong in to toto each do funds

861 traced, and he partner may the “ultimate” interest each may be. Nor owns no more than whatever his actual interest willing agree, majority opinions am I to and the author- as the reason, ities cited to that because the defrauded seem this accounting suit, remedy by way has a in the civil law in adequate act, and is a criminal redress the commission of I accede fact, therefore, Nor can no crime has been committed. cogent fraud is a difficulty proving to the idea that the a fact, In holding apply. reason for the criminal does not law record, ease, speaking the instant from facts easily abundantly apparent. fraud proven was In 180 P.2d People Cravens, App.2d v. 79 Cal. place 453, 456, pretenses to the victim was induced money in defendant then account from which the it. are not satisfied withdrew The California Court said: “We part- proof wrongdoer that converted the that the afterwards subject nership property victim still to his own while the use not constitute the influence of his false would pretenses.” The obtaining money by false property crime of holding and the majority this distinction drawn between fragile. at bar most case seems Pierson, both and State event, Jensen v. Wiersma seem, destroy effect

supra, and Iowa cases to the same other upon the majority holding, is bottomed for the which the basis partners. by all the thought joint ownership Mutual Gary v. Northwestern heavily upon leans it holds So far as N.W. 1086. Assn., Iowa Aid jointly, rather in the property is title that the entity, and legal separate as than cannot partner, of each “ultimate” interest interest, the real over- effect it, the case demands realism traced even when supra. Pierson, both State v. Wiersma Jensen v. ruled in 1893 decided Gary case was because suggested that cheating statute change the fit to not seen legislature has and the law as in the concurrence recognize time, must we since legislatures do, courts often grant, If we laid down. there ma- to me that seems all-knowing, it still all-seeing its con- makes which premise from jority reasons here ,to elusion unsound. If we assume legislature the ad- was Gary case, vised the we must also assume it knew of the later eases Jensen v. Pierson, supra, Wiersma and State v. both found so no necessity for legislation part. on It is also to noted Gary the embezzlement, case dealt with while we are here concerned with cheating, governed by which a mate- is rially different statute.

with intent says, The Iowa “If to person designedly defraud, false pretense obtain from statute, another set false out any money pretense the majority, * * * * ^[*] I majority think the the fact that, overlooks even under its theory joint ownership, Quinn did obtain from Stanfield property. certain He only obtained not in own interest the funds of the partnership, but Stanfield’s. An undivided interest money in property. is point The material Quinn by is not that his fraud secured interest, which he had an undivided but that he also obtained Stanfield’s interest. It would be difficult to convince actually that the Stanfield defendant obtained noth- ing course, from him. partner may Of one cheat another representations which induce cheated to over an undue make share assets to the cheater; and the courts disregard any should holding supports technical fiction which nothing advisability can be done about it. The of a realistic approach problems pointed to these out in Chisholm Co., Chisholm Construction 298 N.W. 298 Mich. Michigan Supreme where “However, said: Court prevent injustice to to fraud, order not hesitate we do disregard regard entity fictional disregard right the members If it is to as individuals.” injustice, why it not “separate entity” theory prevent is “joint equally to refuse to follow the incumbent the courts ownership” fiction for the same reason? opinions protection “joint extend the

ownership” theory wrongdoers They step. one more concede applied cheating case has been effect there is no which it pretenses. They rely upon analogy embezzle- theory I of these cases unrealistic and ment cases. believe that, much wrong. interesting statement, An illustrative of me, wrong, only seems to the majority holding-here with but with thinking many of too generally, courts is found in the learned Chief Justice of South Carolina in the case of Simmons, supra, recent State v. at page 536 of C., page 209 S. 219 of 41 S.E.2d: law, “Under the common accepted under the law of State, this copartner in a business * * * cannot be convicted for defrauding the partnership. may be that there is no sound reason principle this lam, for

but it has existed for time immemorial, and I see no reason in the instant case ignoring or modifying (.Italics sup- [it].” plied.) agree I with the South jurist Carolina that there is no rule; sound reason for the I but cannot concur in his conclusion should be it followed because it is age. venerable with Error persisted in is none less error. There is much to be said for decisis, the rule of stare and may upon it occasion be better principles to adhere of doubtful so soundness that the law may be settled. But this should never be done when the rule only palpably is not injustice error but will be done and promoted. manifest mischief sanctioned or In such it cases far better for the law to admit speedily its error and correct it as may only as be. The confirming here is an un- upon nothing legal fiction, sound rule based more than a but extending cheating it into pretenses, the field of where squarely it has never before I apply. been held to am not sur- prised thought trial court prece- able himself bound dent; appellate but courts have a much wider latitude cor- recting previous their mistakes. joint ownership theory repudiated in Iowa Jensen — Pierson, supra

v. v. both Wiersma State its attendant —with legal may unsound fiction that one not steal or embezzle that already long protected which he has too owns thieves and em- majority now extends cloak bezzlers. The to cheats. The time partner- be far distant when the courts will look at cannot actually hoped is. I ship relation in cases as had this these reality. way might point back to court respect people If law is to command the vigilant justice, to look to the it must be substance instrument astray form, being -led and to avoid teehni- instead wrongdoer protect and thwart only to calities which serve helpless punish. agree I the law is righteous. do not court in I hold the trial error. would C.J., J., join in this dissent. Garfield, Bliss, appellee, corporation, District, School Varina Consolidated Buena of Schools superintendent A. E. Harrison, al., County, appellants. et Vista No. 268)

(Reported in 64 N.W.2d

Case Details

Case Name: State v. Quinn

Court Name: Supreme Court of Iowa

Date Published: May 4, 1954

Citation: 64 N.W.2d 323

Docket Number: 48358

Court Abbreviation: Iowa