33 Wash. 324 | Wash. | 1903
The information in this case charges that appellant fraudulently and with felonious intent attempted to defraud one Gower by means of certain false pretenses. After a trial the jury returned a verdict of guilty as charged, and the court entered judgment that appellant shall be confined in the jail of Spokane county for the period of one year, and shall pay the costs of the prosecution. This appeal is from said judgment.
It is first assigned as error that the court overruled appellant’s objection to the introduction of any evidence, upon the ground of insufficiency of the information, and particularly because the information was not signed by the prosecuting attorney. It was signed “Miles Poindexter, Deputy Prosecuting Attorney.” The objection made in the court below was general, and did not specify said reason in particular. Despondent therefore contends that the point was waived and cannot be raised here. Appellant contends, however, that the point raised is jurisdictional, and, inasmuch as it is urged upon that ground, we shall discuss it.
§ 6832, B'al. Code, provides as follows:
“All informations shall be filed in the court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant; he shall subscribe his name thereto. . . .”
Upon authority of the above statute appellant insists that, unless the prosecuting attorney’s name is signed to an information, the court is without jurisdiction. An unquali
It is further urged under this objection that the charging part of the information does not state facts sufficient to
“The said T. D. Riddell, in the county of Spokane, state of Washington, on the 10th day of November, 1902, did wilfully, unlawfully, fraudulently, and feloniously, with intent to defraud one H. E. Gower, attempt to obtain from the Traders National Bank, a corporation organized and existing under the laws of the United States, doing business in Spokane, certain money, bank notes, and currency of the United States, to wit, the sum of three thousand ($3,000.00) dollars, of the value of three thousand ($3,-000.00) dollars, the property of said bank, designedly and by color of 'certain false pretenses which the said J. D. Riddell then and there wilfully, unlawfully, fraudulently, and feloniously made to the said bank, the said pretenses being as follows, to wit, that he, the said J. D. Riddell, was then and there the bona fide purchaser for value and the owner of a certain certificate of deposit in writing which had theretofore been executed, made and issued by the said bank to and in favor of the said H. E. Gower, for the sum of three thousand ($3,000.00) dollars, being numbered 10,001, dated Spokane, October 15th, 1902, and endorsed by H. E. Gower, the said pretenses then and there being false, and the said J. D. Riddell then and there knowing the same to be false.”
We think the information charges a crime. It clearly^ charges an attempt, by falsely pretending ownership of a certificate of deposit, to obtain money from the Traders National Bank, and that appellant feloniously intended thereby to defraud one Gower. It is also alleged that the certificate had been issued by the bank to Gower, and had been indorsed by him. It thus appeared upon the face of the information that appellant pretended to the bank that he was a bona fide purchaser for value of this indorsed certificate, and thereby attempted to obtain from the bank $3,000 in money, the amount represented by the certificate. It is alleged that the pretense was false, and that appellant
If appellant had succeeded in obtaining the money in the manner attempted, he would have brought himself within the terms of § 7165, Bal. Code, which provides that, “If any person with intent to defraud another shall designedly, by color of any false token or writing or any false pretense, obtain from any person any money, . . . such person shall upon conviction thereof,” etc. The allegation of the information shows an “intent to defraud another” by obtaining money from the bank through the means of a false pretense. The mere fact that the attempt was not successsful did not eliminate from the act the element of crime, under the provisions of § 7437, Bal. Code, which contains the following:
“Every person who attempts to commit any crime but fails or is prevented or intercepted in the perpetration thereof, is punishable, when no provision is made by law for the punishment of such attempt, . .
following the above quotation the different crimes are classified by reference to the degree of punishment fixed for .them, and punishment is then fixed for the attempt to commit the crimes, the same being in each instance less severe than in the case of the completed crime. If the in
It is urged, however, that it is not averred that appellant was in possession of the certificate of deposit, and that the false pretenses are not charged to have been made while it was in his possession, or when he was attempting to cash it. We think the allegation that the false pretenses were made in an effort to procure the payment of the $3,000 represented by the certificate sufficiently shows that they .were made when he was attempting to cash it. The mere fact that it is not alleged in so many words that he was in actual possession of the certificate at the time, we think, is not material, since it is alleged that he falsely pretended that he was the owner and its bona fide purchaser for value, and that by means of such false pretense he sought to obtain the money. It being alleged that he claimed to be the bona fide purchaser and owner, the law implies that he at least controlled the certificate, which fact is inseparable from that of actual possession as far as it relates to the effort to procure the money represented by it. We believe the court did not err in overruling the objection to the introduction of any evidence.
It is nest urged that the court erred in refusing to sustain appellant’s challenge to the sufficiency of the evidence, and in overruling his motion to direct a verdict of not guilty, made at the conclusion of the state’s evidence. It is contended that the evidence had not shown any demand by appellant for the payment of the certificate. The evidence tended to show, that Gower was the owner of the certificate which had been issued by the hank as an evidence of the $3,000 deposited by him; that early in the morning, while waiting for a train at the railroad station, he was
The appellant was not present during any of the foregoing performances, and was then unknown to Gower, but almost immediately after the bank doors were opened he appeared at the paying teller’s desk and presented this certificate of deposit containing Gower’s indorsement. The paying teller, having been so instructed by the cashier, took the certificate and wrote upon it, “Payment stopped.” The teller referred appellant to the cashier, and he at once sought the latter, to whom he showed the certificate containing both his own and Gower’s indorsement. He stated to the cashier that he had advanced money upon the certificate, or had bought it—the witness not accurately remembering which.
Error is urged as to the competency of certain evidence
Error is alleged upon the following instruction:
“The material allegations in the information are, first, that the defendant in this case, for the purpose of obtaining money upon this certificate of deposit or of defrauding the owner thereof out of the money, represented to the bank, or any one, or remarked to the officials of the bank, that he was a bona fide purchaser for value, and the owner 'of the certificate of deposit.’’
The objection urged to the instruction is that the words, “represented to .the bank or any, one" that appellant was the purchaser and owner, were used. It is contended that, as the evidence had disclosed that he. made such representations to others after the appearance at the bank, the instruction may have tended to prejudice thé jury, and may have led them to find appellant guilty upon representations made to persons not connected with the bank. The instruction must be read in connection with others following it, and we think it was made clear to the jury that they coidd
It is insisted that in one instruction the court assumed certain facts to exist, viz., that appellant made certain statements about the certificate of deposit after he left the bank. The instruction was to the effect that such statements could not be considered as false pretenses for the purpose of defrauding Gower. The instruction was in the interest of appellant. Testimony of such statements was before the jury undisputed, and while even under those conditions the court should not have assumed and stated any fact as proven, yet we do not think the instruction did so. It merely stated the abstract proposition, “any statement made by the defendant,” but did not say that such statement had in fact been made. Since there was evidence upon the subject, the instruction had no further effect than to call attention to the subject without saying what the evidence proved.
Other errors assigned upon instructions given, and upon the refusal to give requested instructions, we do not think it necessary to discuss. The charge of the court fairly and fully stated the law within our views of the, case as heretofore outlined.
Finding no prejudicial error, the judgment is affirmed.
Fullerton, O. I., and Anders, Dunbar, and Mount, JJ., concur.