83 N.W. 869 | N.D. | 1900
The defendant was indicted by the grand jury of Sargent County for the crime of obtaining money by false pretenses. The trial resulted in a conviction. A motion for a new trial was overruled, and he was sentenced to imprisonment in the penitentiary for one year. The defendant is charged with having fraudulently obtained money from Sargent County by means of a false, forged, and fictitious instrument presented and used 'by him as evidencing an indebtedness of the county to him for the destruction ojj gophers. This is one of a series of offenses which appear to have been committed in that county by various persons, and which are known as the "gopher-bounty frauds.” One of these cases, State v. Ryan, 9 N. D. 419, was before us at this term. The indictment in that case was for forgery, and is set out in full in the opinion, and is referred to- in lieu of an extended statement of facts at this time. The condition which opened the way for the commission of these frauds arose directly from a certain illegal resolution of the board of county commissioners of that county offering a bounty for the destruction of gophers. The resolution offering the bounty provided, as a convenient means of paying such bounties as should be earned under it, “that said bounty shall be two (2) cents for each gopher killed, the same to be paid out of the county general fund upon the warrant of the county auditor: provided, that the county auditor shall issue such warrant upon the certificate of the township clerk of each township wherein such gophers were killed, such township clerk certifying to the number of tails of such gophers killed which were presented to and destroyed by such township clerk.” The indictment against the defendant charges that he obtained money from the county by means of the following certificate, which it alleges was falsely made, forged, and wholly fictitious : “County of Sargent, North Dakota, Office of Town Clerk of Harlem Township. To W. S. Baker, County Auditor: This is to certify that L. Lund has presented to me 2,250 gopher tails, which have been destroyed by me this day. Dated at Harlem, this 20th day of June, 1899. R. J. Morrow, Township Clerk.” The defend
The specific grounds of counsel’s attack upon the sufficiency of the indictment are that (t) “it nowhere charges the fact to be that the instrument declared upon as a false token was not made, executed, and delivered by the person whose name was signed to it; (2) the instrument declared upon as a false token is not such, under the law, as could mislead any one.”
Neither one of the foregoing objections, in our opinion, is well founded. As to the first ground, namely, that the indictment contains no averment negativing the genuineness of the certificate alleged to have been used as a pretense, or alleging the falsity of the pretense used, counsel is in error. It is expressly alleged as to it that, “in truth and in fact, said partly printed and partly written paper was not a good and valid certificate of the facts therein recited, * * * but the same was then and there a falsely made and forged certificate, and wholly fictitious; all of which the said Robert H. Stewart then and there well knew.” The false character of the certificate is sufficiently set out in the foregoing averments. It was not necessary to expressly allege that it was not made by the person who purported to make it to give it the character of a false pretense; for, to have that character, it is not necessary that it be a forged instrument. It might he used as a false pretense, although genuine in point of execution, provided its recitals of fact were false, and known to be false by the defendant; and such was the case, as we shall hereafter see.
The contention, however, that the instrument declared upon as a false token is not such a pretense as, under the law, 'would mislead any one, and is not, therefore, a false pretense within the meaning of the statute, requires more extended consideration. The statute under which the,indictment is drawn (§ 7489, Rev. Codes) provides that “every person who, with intent to cheat or defraud another designedly, by color or aid of any false token or writing or other false pretense, * * * obtains from any person any money or property is punishable by imprisonment in the penitentiary,” etc. Was the false certificate set out in the indictment a false pretense? Bishop defines a “false pretense” as follows: “A false pretense is such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the person to whom it is made to part with something of value.” Bish. Cr. Law, § 415. This definition has been universally approved by the courts, Jackson v. People, 126 Ill. 139, 18 N. E. Rep. 286; State v. DeLay, 93 Mo. 98, 5 S. W. Rep. 607; Taylor v. Com., 94 Ky. 281, 1 S. W. Rep. 480; State v. Knowlton, 11 Wash. 512, 39 Pac. Rep. 966; State v. Vandimark, 35 Ark. 309; People v. Jordon, 66 Cal. 10, 4 Pac. Rep. 77; People v. Wasservogle, 77 Cal. 173, 19 Pac. Rep. 270. It is counsel’s contention, however, that this certificate, alleged to have been used as a means of defraud
The certificate-used by this defendant to obtain money from the county treasury is founded on the resolution of the county board, and, while the county auditor is held, in theory, to know that the resolution offering the bounty was void for want of authority in the board to contract in reference to the general fund for the purpose, yet, practically, he did what such officers generally do. He assumed that the commissioners had authority to bind the county to pay the gopher bounty in the manner and form provided in their resolution, and that the certificate was legal proof of an actual indebtedness of the county. In light of these conditions, which are derived from the facts set out in the indictment, it cannot be said that the indictment shows upon its face that the alleged false token was so absurd and incredible that it was not adapted to deceive. It is alleged that it did deceive, and that question is for the jury. The indictment was not vulnerable on that ground.
The indictment is assailed on another ground. It is contended that inasmuch as it alleges that the false certificate was presented to, and delivered to, the county auditor by the defendant, and a warrant was received from that officer on the county treasurer, the indictment itself, by these allegations, shows that the defendant did not receive money by aid of the false pretenses as charged, but did receive property, to-wit, the warrant of the auditor directing the treasurer to pay the money, and for that reason the indictment must fall. If the foregoing contention is true, and the state were limited to prosecutions either for obtaining the warrant from the auditor or money from the treasurer as individuals, then the defendant would, indeed, be fortunate; for it is evident that a conviction for obtaining the warrant from the auditor by aid of the false certificate could not be sustained, for the reason that the warrant issued was void upon its face and without value, in that it showed upon its face that it was in payment of gopher bounties out of the general fund, and also lacked the signature of the chairman of the board of county commissioners. By obtaining it, he had defrauded no one, and had received nothing of value. On the other hand, it is clear that an indictment for obtaining the money from the treasurer by means of the auditor’s warrant would not sustain a conviction, for the use of a false pretense would be lacking. Neither of these conditions confront us, however. A sufficient answer to the objection now under consideration is that the defendant is not charged with obtaining property from the county auditor, or money from the county treasurer, as individuals, but is charged with obtaining money from Sargent County, by aid of the false certificate in ques
The order of the trial court overruling the motion for new trial is assigned as error. The motion was based upon alleged errors in the admission of testimony, and in the instructions, and upon the insufficiency of the evidence to sustain the verdict. The assignments of error, relative to both the admission of evidence and the instructions, upon which counsel for defendant rely chiefly in their brief, relate to the questions which we have determined in considering the sufficiency of the indictment. They therefore need not be referred to further. We have carefully examined the remaining assignments, and find that the rulings and instructions complained of are not of sufficient importance to require extended treatment, and that in them there is no prejudicial error.
One ground of the motion yet remains to be considered, namely, that there is no evidence to sustain the verdict. Counsel contends that the undisputed evidence shows that the certificate alleged to be a false certificate was in fact true and genuine, and therefore the conviction for obtaining money by aid of a false pretense cannot be upheld. We do not so understand the evidence. It is true it was not false in the sense that it was not written and signed by the township clerk. Both the clerk and the defendant testified to its execution, and both of them also testified that 2,250 gopher tails were presented by the defendant and counted by the clerk at the time of its issuance. The certificate was not issued in the defendant’s name, but in the name of L. Lund. The latter was defendant’s hired man upon his farm, and with the defendant daily. He testified that he presented no tails to the clerk, destroyed no gophers, and had no knowledge that the certificate had been issued in his name until about the time these frauds were being investigated, ■when the defendant requested him to state to the state’s attorney that he (Lund) had presented the tails represented by the certificate. It appears also in the evidence that the defendant obtained from the same township clerk several other certificates showing that he had destroyed several thousand gophers besides those represented by the certificate in question, and that he secured the money from the county on them. Lund’s evidence is to the effect that the defendant did not destroy to exceed a dozen gophers during the gopher season. It is shown also that this township clerk issued certificates in one month which, in the aggregate, afforded proof of the destruction of 50,000 gophers. The jury would have been amply justified in entirely discrediting the statement of the defendant and the clerk that 2,250 tails were presented and counted when the cer