198 Iowa 496 | Iowa | 1924
— I. The prosecuting witness, G. O. Smith, owned a 200-acre farm near Oelwein, Iowa, and lived in Oelwein. He had a wife and one boy, 18 years old, named LuVerne Smith. Defendant was a stock salesman for the Atlas Wheel Company of Cleveland, Ohio. On May 26, 1921, G. O. Smith executed and de- ‘ . livered to defendant 22 notes m the total sum of $30,000. The indictment is based on this transaction. It charges that defendant designedly and by false pretense and with intent to defraud obtained the signature of G. O. Smith to said notes, the false making of which would be punished as forgery.
The ground for reversal most strongly urged is that the evidence fails to establish a case of cheating. Counsel for appellant do not concede that the evidence establishes a case of lárceny, but argue that the only offense for which defendant could properly be indicted and tried in connection 'with the transactions involved is the crime of larceny. The determination of this question involves an examination of the evidence of events leading up to and connected with the transaction which is later set forth in substance.
Other errors are assigned on refusal to give a requested
II. The evidence offered by the State in substance was that, about the latter part of March or the 1st of April, 1921, Reysa, under the alias of Ray Leslie, came to the home of Smith, representing himself as an agent of the Atlas Wheel Company, said company and its factory being located at Cleveland, Ohio, and that he was there to sell stock of said company; that Reysa solicited Smith to buy stock in said company; that Reysa stated that he came at the request of the company, in pursuance of a letter written to the company by Ben B. Little, of Oelwein, stating that he had seen quotations of the stock of the Atlas Company in a magazine, that the company had sent him to sell Little some stock and to sell to others, and that the capital stock of the Atlas Wheel Company was selling at $125 per share on the market; that Reysa stated that the company would like to have LuVerne become a stock salesman for them, and that he would have to own some stock before he could go to work; that, in a few days, Reysa again visited the Smith home, and then brought with him one Mr. Embree, and introduced Embree as an agent of the company who was working in the east and was on his vacation and came out to help him sell stock; that Reysa and Embree said the stock of the Atlas Company was worth $125 per share and was selling for that, and showed printed quotations; that Reysa stated that they wanted to sell some stock so as to enlarge the plant; that Reysa had with him a sample wheel and literature; that Reysa said that, before LuVerne could g'o to work, he would have to have some stock in the company ; that Reysa and Embree came again to the Smith home the next morning, and wanted LuVerne to subscribe for stock; that Reysa said they wanted LuVerne to work for the company; that, at that time, Mrs. Smith, mother of LuVerne, subscribed for one share of stock; that on numerous occasions Reysa would contrive to meet Smith, and have along with him Roy and Embree, or one of them, or perhaps LaVere; that, at one of these con
Smith testified further that, about ten days after the first talk he had with defendant, Reysa, wherein Reysa had stated that he came out to Oelwein to sell stock because of an inquiry made by Ben B. Little concerning the stock, Reysa told him that Little had then bought $10,000 worth of stock. In another conversation, Reysa said there was a man in Waterloo who wanted to purchase $20,000 worth of stock, and went into the factory and looked it over, and bought $20,000 worth of stock; that LuVerne was entitled to a commission on that stock; and that he would try to get the commission for him; that, at another time, Reysa and Roy, while driving to Independence, taking
It may be noted that the record shows without dispute that LeVere was not a freight agent, but was a stock salesman, working in conjunction with Reysa, and that Roy was not a drainage engineer, but a soap peddler, and did not have a contract with any county for the construction of ditches.
The record presents no serious dispute as to the representations made by Reysa to Smith to induce Smith to purchase stock in the company which he represented, and that some one or more material representations were untrue, and known by defendant to be false, and that Smith believed and relied upon said representations. We will not attempt to set forth all the representations testified to. A summary of the representations submitted by the court for consideration of the jury is as follows: That the capital stock of the Atlas Wheel Company was selling at $125 per share; that' the United States government, the Ford Automobile Company, and the Essex Automobile Company then had orders with the company for a large number of wheels ; that Ben B. Little, a resident of Oelwein, had written to the company, and Reysa had come to Oelwein and sold Little $12,000 worth of stock, and Little had paid him therefor; that Theodore Roy was a contractor and engineer of drainage projects in Fayette, Buchanan, and Bremer Counties, and had exchanged drainage warrants with the Atlas Wheel Company for $25,000 worth of stock in the 'Company; that a judge of the district court and a lawyer of Cedar Rapids, Iowa, had visited the factory and inspected it and examined the books of the company, and had then purchased $50,000 worth of the stock; and that a woman living in Cedar Rapids, relying upon the investigation
Reysa was a witness in his own behalf. His version of his meetings with Smith and of their conversations is quite different from that testified to by Smith and his son, LuVerne. -Reysa says that he met the son Luverne first, without prearrangement, and talked with him before he met G. O. Smith; that LuYerne saw the specimen of wheel that he had with him, and remarked that his father needed a wheel for his automobile, and wanted to know if Reysa would not arrange to show his father the wheel; that he told LuVerne that he would sell him stoek of the Atlas Wheel Company, and that he would show the wheel to his father; that, a day or two later, he was walking up a street, in Oelwein, and his attention- was called, by the sounding of a horn, to an automobile standing in the street, and to someone in a car, motioning him to come to the car; that-he approached, and was introduced by LuYerne Smith to his father, G. O. Smith; that Smith invited him to take a ride, and he did so; that, during the drive, Smith stated that his son had tallied to him about the wheel, and said he would like to look at the wheel, and asked him to come up to his house that evening; that he went to the Smith home that evening and explained the wheel to Smith and his son and talked about stoek in. the company, and that he was selling stock-of the company, but that he did not-tell him that the stoek was selling at $125 per share; that, about a week later, he visited Smith at his home and showed Smith Some Atlas Wheel literature and explained the mechanical details of the wheel that was manufactured by the company; that Mr. Smith wanted to know if he could .place his son in the factory; that he told him he did not know, but he would use his influence to that end; that nothing else was tallied about, except that Smith stated that he would consider an investment in the company himself, and LuYerne said he had a $100 liberty bond, and asked his father’s permission to invest that one share of stock, and liis'father gave him permission, -and asked him to return in the •morning and fix up the subscription; that, the following morning, Mr. Embree and he went to Smith’s house,'and Mrs. Smith subscribed for a share, and turned over to him a $100 liberty
A few minutes after Smith signed and delivered the 22 notes to Reysa, and at the same meeting, at the request of Reysa Smith signed the following memorandum, known as Exhibits 2 and 5 in the record:
“Oelwein, Iowa, May 26, 1921.
“I hereby authorize the bearer to purchase for my account three hundred (300) shares of the common stock of the Atlas Wheel Company of Cleveland, Ohio, paying therefor the sum of thirty thousand dollars.
“ [Signed] G. O. Smith”
Concerning Exhibit 2, Smith testified that the only talk about it was that Reysa said “that was to show that I had authorized him to buy stock and give the notes to pay for it.” On rebuttal, Smith testified:
“At the time Exhibit'2 was delivered to me, the defendant said that receipt was to show I purchased $30,000 worth of stock in the Atlas Wheel Company.”
On cross-examination during rebuttal, Smith further testified :
“Exhibits 2 and 5 were executed in the Mealey Hotel in defendant’s room on the same day the 22 notes were executed. Exhibits 2 and 5 were signed three or four minutes after I signed the last one of the 22 notes. This was all part of the same transaction. * # * Exhibits 2 and 5 were executed before I left the room, after I signed the notes.”
Smith testified that he understood that" the proceeds of the notes he executed were to buy stock of the Atlas Wheel Company ; that the money that the notes brought was to be applied to buy stock of .the Atlas Wheel Company, either the notes or the money. Smith testified further that none of the notes were ever returned to him, except some that he paid and took up, and for which Reysa received the money.
III. At the conclusion of the evidence for the State, defendant moved the court, and afterwards renewed the motion at the close of all the evidence, to direct a verdict for the defendant, on the ground, among other things, that the evidence dis
The statute, Code Section 5041, under which the indictment was found, reads:
“If any person designedly and by false pretense, * * * and with intent to defraud, obtain * * * the signature of any person to any written instrument, the false making of which would be punished as forgery, he shall be imprisoned * * *”
As stated in State v. La Vere, 194 Iowa 1373:
“The material allegations of the charge are: (1) The design; (2) the false"pretense; (3) the intent to defraud; (4) the obtaining of the signature; and (5) the character of the written instrument as one the false making of which would be punishable as forgery.”
Counsel for appellant urge that the offense committed, if any, as shown by the evidence, was not the offense defined by Code Section 5041, but was larceny or embezzlement; because in “cheating,” the offense defined by Section 5041, the accused must not only obtain possession of, but must also obtain ownership and title to, the property involved, even though the title so obtained is voidable. The distinction drawn by counsel be
We think the evidence does not support the theory of counsel for appellant that, even though the evidence sufficiently established that there was a fraudulent design, carried out by false pretenses, with intent to defraud, culminating in obtaining the signature of Smith to the notes, still the crime of cheating was not made out, because Smith did not intend to part with the ownership of the notes in question, but merely the possession thereof. The intention and purpose of Smith, and also of the defendant, are to be determined from consideration of the conduct of the parties and all the facts and circumstances and from the nature of the transactions, as disclosed by the record. While the memorandum Exhibit 2, considered alone, might lend some support to the theory of appellant that Smith was appointing him as his agent to negotiate the notes and use the proceeds in purchasing stock, the record as a whole, we think, does not bear out such theory. Eeysa presented himself to Smith as the agent of the Atlas Wheel Company, and solicited Smith to buy stock in said company. At the solicitation of Eeysa, Smith subscribed for stock in the company, and executed and delivered his notes to Eeysa, the agent of the company. Eeysa took possession of the notes, and, according to- Smith’s testimony, kept them. No notes were returned to Smith, according to Smith’s testimony, except canceled notes which he paid and .took up. The evidence presented an issue to be determined by the jury. We think the evidence justified a finding that Smith intended to and did part' with the title and ownership of the notes.
The gravamen of the crime charged was fraudulently inducing Smith to execute the notes in question. Whether possession of the notes was obtained by Eeysa for his own benefit or for the benefit of another is immaterial, if Smith intended to part with the permanent possession and ownership of the notes. The criminality of the transaction of May 26th,' — if the' crime
IV. Appellant assigns as error the refusal of the court to give requested instruction reading as follows:
“If you find that, at the time the 22 notes were executed and delivered to defendant by G. O. Smith on May 26, 1921, the said G. O. Smith did not intend to part with the title and ownership of said notes, but on the contrary gave the same into the possession of the defendant for the purpose only of purchasing stock for G. O. Smith with said notes or the proceeds thereof, then the defendant must be acquitted.”
In Paragraph 5, Subdivision F, of the instructions, the court properly imposed upon the State the burden of proving beyond a reasonable doubt, among other matters, “that, relying upon said representations which you may find were made by the defendant to G. O. Smith, the said G. O. Smith did deliver to defendant the said promissory notes, or some of them, with intent to then part with the possession, ownership, and control of said notes so delivered.” The jury was also instructed in Paragraph 8 that:
“If you find that, at the time the 22 notes were executed and delivered to defendant by G. O. Smith on May 26,. 1921, the said G. O. Smith did not intend' to part with -the title and ownership of said notes, then you will return a verdict of not guilty. ’ ’
Appellant complains of the instruction given in said Paragraph 8 on the ground that said instruction was inadequate and incomplete, and no guide to the jury in determining the proposition involved therein. We think the criticism not well founded. We observe no material difference in the proposition of law submitted in the requested instruction and the one given, and, reading Subdivision F of Paragraph 5, given by the court, in connection with Paragraph 8, we think the proposition was sufficiently stated. We find no error at this point.
VI. Appellant assigns error in permitting Smith to testify, over objections, that, at the time he signed the notes in question, he believed that “a judge of the district court and a lawyer of Cedar Rapids had gone to the factory,” etc. It is also contended that the court erred in submitting to the jury the claimed representations relative to the visit of the judge and lawyer to the plant. There was no error in the ruling, nor in submission of the representation, — at least no prejudicial error. Proper' foundation for the question had' been laid. It was not incumbent upon the State to prove each and all of the misrepresentations alleged. The proof of any one of them was sufficient, and the court so instructed the jury.
We find no reversible error in the case. The judgment of the trial court is affirmed. — Affirmed.