22 N.M. 493 | N.M. | 1917
OPINION OF THE COURT.
(after stating the facts as above). It does not appear under what section of the statutes of this state the indictment was drawn. There are three sections of the Code of 1915, which are applicable to the facts of the case, and under either of which it is contended by appellant the indictment is sufficient. The sections referred to are 1551, 1553, and 1560. It is not necessary four us to determine at this time under what section the indictment was drawn, as the only question presented for our consideration is the question of law, which, as stated in the brief of appellant, is:
“Whether or not the indictment alleges a false pretense as to an existing or past fact, or whether it merely alleges a false pretense as to a future fact or event.”'
“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.” 11 R. C. L. 831.
It is contended by appellee that the false and fradulent representations charged in the indictment are no more than representations or pretenses that the check in question would be paid by the First National Bank of Farmington, N. M., when presented for payment and that he (Tanner) had and intended to have money on deposit in said bank to pay the check when presented, which amounted to- no more than a promise as to a future happening or conditions, and therefore was not a false representation relating to a past or existing fact.
By appellant, on the other hand, it is contended that the defendant represented and pretended to the said Miera that the check was good for the amount therein named at the drawee bank; that the said drawee bank would pay the same when presented for payment, and that he, the said Tann'er, had and intended to have money on deposit at said bank, out of which the said bank would pay the said check on presentation, whereas, in truth and in fact, the said check was not and would not be then and there good for the amount of money therein specified at the drawee bank, as the defendant then and there well knew; and whereas, in truth and in fact, the said check would not be paid by the drawee bank on the presentation thereof for payment, as the said defendant then and there well knew.
“Securing property for a cheek which the maker represents as good and will he paid when he in fact intends to stop payment upon it, does not render him guilty of obtaining property by false pretenses within a statute making punishable any person who, by any false pretense, obtains from any other person any valuable thing with intent to cheat or defraud.”
As pointed out in the case note to the foregoing case in L. B. A., it was conceded in the Colorado 'case that the drawer had money in the bank upon which the check was drawn; the sole question being whether the defendant’s intention to stop payment on the check related to a past, present, or future fact. To that extent the Colorado case differs from thei case at bar as we have indicated, for the reason that in the indictment under consideration it is charged that Tanner represented that the check was good for the amount of money named at the First National Bank of Farmington; that the said Tanner had and intended to have money on deposit in said bank to pay the said check when presented; that these representations were then and there false and fraudulent as said Tanner knew, etc.
As pointed out in the same case note in L. B. A., it is generally held that the giving of a worthless check constitutes a representation that the drawer has credit with the drawee bank for the amount involved, and that said representation relates to an existing fact, so that a prose-ration for obtaining money by false pretenses may be maintained. Smith v. People, 47 N. Y. 303; 2 Wharton’s' Crim. Law, 1611; 11 R. C. L. 35.
We are not unmindful of the fact'that some courts hold that a state of mind is a fact, and that therefore a false statement as to the intention of the accused is a false pretense as to an existing- fact, while other courts have held that a representation as to an intention is not within the statute. See authorities collected in note in 19 Cye. 397.
We are not called upon, however, to determine which of these two conflicting lines of authorities we will follow, as, in our opinion, all that has been charged in the indictment as to the intention of the defendant, Tanner, in the matter of stopping payment upon the check may be treated as surplusage, as the charging part of the indictment in the matter of the representations as to having money in the bank at the time the check was drawn, which he knew at the time to be a false representation, is a sufficient charging of present fact without regard to the matter of the intention of stopping payment.
We therefore conclude that the action of the trial court in sustaining the motion to quash was. erroneous, and that the judgment of that court must therefore be reversed, and the cause remanded for trial.
