196 Iowa 352 | Iowa | 1922
On October 18, 1917, L. S. Wentz, then a resident of Dickinson County, Iowa, was the owner of a tract of land in Harrison County, Iowa, alleged to contain 295 acres. One Hagerty, who figures in the ease, ivas a real estate agent at Spencer, in Clay County, and the defendants Ritchie, Welch, and Farrar were engaged in like business at Sioux City. There is evidence tending to show that, in the summer of 1917, Wentz listed his land with Hagerty, with authority to sell it at $30 per acre cash, or to effect a trade or exchange for other property at an estimate of $35 per acre. Thereafter, there was some negotiation between Hagerty and Ritchie, the latter claiming to have a client owning a section of Canada land which he might be induced to exchange for the Wentz property. At Ritchie’s representation of a prospect, and his request to Hagerty to come to Sioux City and “bring the papers,” the latter obtained from Wentz and wife a deed for the land to a blank grantee, and went
‘ ‘ In looking over the abstract, I find that the deed was made out wrong so I am inclosing you another deed so have Mr. Wentz and his wife sign before a notary public and return it to me then I will be able to close up the deal as I have all the necessary papers in carrying it out.”
This call for a new deed was not complied with, and later, in response to an inquiry by Hagerty, defendant or one Gregory, an occupant of his office, wrote:
‘ ‘ Dear Sir: I just had a talk with Mr. Farrar concerning your letter of November the 9th. I have learned from Mr. Farrar and Welch that you need not be uneasy in any way about the final closing of this deal. The truth about the matter is they have been delayed in .getting their papers on the Canada section and it is only a matter of time when everything will be*355 settled according to the contract. We know the time of settlement was October 28th, but I see no reason why we should be uneasy in any way for at least a while yet. They have paid the commission on their end of the deal and the $300 cash will be honored when the deal is finally closed. They would not have paid any commission unless they intended to go on through with the deal. I can’t see from the tone of their conversation where they are attempting to take an undue advantage of you. We will advise you immediately upon their notifying us when they are ready.
“Yours respectfully,
“By Dell Gregory.”
Again, on November 16, 1917, he wrote Hagerty again, saying:
“We just had a talk with Mr. Farrar and Welch concerning the closing up of the deal. They are ready, able, and willing to close the deal as per the contract.”
He called attention, however, to the alleged fact that the transfer of the Harrison County land was to be made subject to an incumbrance of $2,500 only, while the abstract indicated a mortgage of $2,800. On November 28, 1917, defendant wrote Hagerty still another letter concerning the deal, which is not shown in the record and cannot be found. Soon thereafter, Hagerty again visited the defendant with reference to the business, and was then told by him that Welch and Farrar had got possession of the Wentz deed. Defendant further informed him that Welch and Farrar had “put up” or offered to put up certain-’“mill property” and certain Nebraska land, to secure their performance of the agreement to convey the Canada land. Hagerty replied that he didn’t know about that, and would have to refer it to Wentz. The matter continued to drift along in this manner, and Hagerty continued to press for settlement. On January 16, 1918, defendant again wrote:
“I am at last getting close to the closing of the deal with Farrar and Welch. I have put this proposition right squarely up to them and think that everything will be fixed up within the next two days. They will either deliver you the Canada land*356 or return you your origmal papers, so just be patient a little longer and I will see wbat can be done. Would you waive the $150 if they can get this Canada section and clean up the deal? The money is what is now bothering them. Kindly advise me by return mail, and oblige,
“Yours respectfully,
“Hugh.”
Here again the promised settlement hung fire, and on February 7, 1918, defendant once more reported, saying:
“I have been unable to do anything with Welch and Farrar. I still have the land in Keyapaha County, Nebr., that they put up for collateral. The land is subject to $3,500 incumbrances, but I consider it worth a great deal more than one of the Canadian sections. Now if you want this in lieu of the section, I will send deed so you can file it. They are making a strong effort to get the Johnson deed back, but, if you want it in lieu of the Canadian land, I will send it to you and close up the deal.
“Yours truly,
.“Hugh A. Ritchie.”
This proposal to substitute the Nebraska property in lieu of the Canada land was not accepted. In May following, Hagerty and Ritchie again met hi Sioux City. As a result of that interview, a writing was executed between Hagerty and Farrar, as follows:
“This agreement made and entered into this 24th day of May, 1918, by and between O. R. Hagerty, party of the first part, and Jack Welch and Meldon Farrar, parties of the second part, witnessetli: Whereas a certain contract was entered into for the exchange of certain Canada land, it is fully understood between all parties hereto that said second parties are depositing a deed to the north half of Section 22, and the north half of the northeast quarter of the southeast quarter of Section 21, Township 34, Range 20, in Keyapaha County, Nebraska, same to be held in escrow by said O. R. Hagerty until June 3,1918, at which time said Welch and Farrar agree to deliver section of land in*357 Cariboo District, British Columbia. If, on said Hagerty’s option, he prefers to- keep the said Nebraska land, he may do so. Witness our hand and seal this 24th day of May.
“[Signed] M. Farrar.
“[Signed] O. B. Hagerty.”
As a part of the same transaction, Welch executed a warranty deed to Wentz for 400 acres of land in Nebraska, subject to an incumbrance of $3,500, which deed, with the foregoing contract, was deposited with Hagerty to be held pending the completion of the conveyance of the Canada land to Wentz, as specified in the contract. At the same time, Hagerty received from defendant the sum of $100 commission, and gave him a receipt, in full for the deal with Welch and Farrar. Hagerty át once sent the deed received from Welch for record in the proper county, but record was refused, and the deed returned, with notice that the grantor (Welch) had no title to the described property. The promise to convey the Canada land to Wentz was never performed, and indeed there is no competent evidence that Welch or Farrar or defendant owned an acre of Canada land which they could convey in performance of the contract. To excuse or justify the delivery of the deed of the Harrison County land to Welch and Farrar, it is claimed .on' the part of defendant that, later on the same day when the deed was deposited with defendant (October 18, 1917), Hagerty, Welch, and Farrar returned to the office of Bitchie, in the absence' of the latter, and told the stenographer that they wanted to take up the deed to the Harrison County land and give another deed in place of it, for South Dakota property. This request the stenographer says she at first refused, not feeling authorized to surrender the deed, but that, on the advice of Gregory and- one Bennett, who were present, -she yielded, and gave up the deed. Hagerty positively denies this alleged trans'action; and, although the stenographer is corroborated by a casual visitor, one Bennett, there is ample justification in the record for the jury’s awarding the palm of veracity to Hagerty. The indictment in the case charges that defendant with Welch and Farrar did “willfully and feloniously, by trick and artifice, and by false pretenses and with felonious intent to steal, take,
I. That, the indictment having charged that the alleged larceny was accomplished by trick, artifice, false pretenses, and with felonious intent, it became incumbent on the State to prove this specific allegation and establish it beyond a reasonable doubt; and it is the contention of counsel that there is an entire absence of evidence of trick or artifice or false pretense. To this we cannot agree. Counsel concede in argument that our prior decisions settle that larceny may be- committed by an obtaining and retaining through trick or by false pretenses or both. The further contention for appellant that the allegation of trick and artifice, even if not necessary or essential to the charge of larceny, must be specifically proved, to sustain a conviction, may also be admitted for the purposes of this case, though we by no means admit its soundness as a legal proposition. But even assuming such burden, the record made is clearly sufficient to satisfy it. The question presented is whether the jury could properly find from the evidence that defendant Ritchie, acting for himself or in conjunction with Welch and Farrar or either of them, took the deed into his possession for the professed purpose of holding the same on deposit to await the production and delivery of a deed, for the Canada land, but with the secret purpose to deprive the grantor of his property therein or to convert it to his own use or to wrongfully deliver it to his codefendants or to permit them so to convert it to their use, and that, in execution of such wrongful intent, he delivered it without authority, or knowingly permitted its surrender or delivery to his codefendants or either of them. If such state of facts be shown, he is guilty as charged, under the conceded rule of law. • In short, the questi.on of primary importance is the real intent and purpose with which defendant obtained the possession of the deed;
“There is* no question in my mind that Welch and Farrar are criminally liable because from the best information I can get the Nebraska land never was and never has been the property of the defendants.”
In that same letter, he protested his own innocence by saying that his delivery of the deed was made “in accordance with the written receipts of all the parties concerned. ” As a witness on the trial, he does not defend the truth of this representation, or pretend that he ever had the written receipt or authority for such delivery. Again, as a witness, he swears that he dealt with Hagerty as the supposed owner of the land, and did not know Wentz, or that Wentz had any interest in the property, until the matter was being investigated by the grand jury; and yet the deed deposited in his hands was made by Wentz and wife,
II. Counsel appear to argue'that, by agreement of the parties, other property was substituted for the alleged Canada land, and that such substitution operated- to purge the default of the defendants. It is enough at this point to say that the
III. Appellant challenges the eighth paragraph of the court’s charge, as amounting to an instruction to the jury that, to justify an acquittal of appellant on the ground that the deed deposited with him was surrendered to Hagerty or to Welch and Farrar without his knowledge or authority, such fact must be shown beyond a reasonable doubt. We think the language of the court is not fairly amenable to such criticism. It may, perhaps, be true that the paragraph is unnecessarily long, and embodies some- propositions or features which might better have been omitted, or stated in separate paragraphs; but it seems reasonably clear that the jury could not have been misled to the appellant’s prejudice. Abbreviated somewhat in length, the substance of the charge in this respect was that, even though it be shown beyond a reasonable doubt that the deed was deposited with appellant to hold until Welch and Farrar should deliver to Ritchie their deed to the Canada land, the latter could not be found guilty as charged in the indictment if the premature delivery to Welch and Farrar was made without his knowledge or authority. As so construed, the instruction was not erroneous. '
Further exception is taken to the court’s instruction upon the question of reasonable doubt, in that the jury was told, in substance, that a reasonable doubt is one which naturally and fairly arises in the mind from an impartial consideration of all the evidence. - The criticism offered upon this statement is that a reasonable doubt may also arise from a i~ok of evidence, and that the jury should have been so told. It is true that this court has, on one or more occasions (see State v. Smith, 192 Iowa 218), expressed its disapproval of an instruction so framed; but we think it has never been held an error of a character which necessitates a reversal. Indeed, the distinction between the two forms of instruction is somewhat over-refined and shadowy. A reasonable doubt, arising from the case as made by the evidence, implies an inquiry into the effect of the entire showing in support of the indictment, both its strength and its weakness; or, in other words, what the evidence reveals
The judgment appealed from is — Affirmed.