129 P. 534 | Or. | 1913
delivered the opinion of the court.
The first and most important question involved on this appeal is based on defendant’s contention that the false pretenses must be in writing, and either subscribed by or in the handwriting of the defendant, and that the pretenses upon which the State relies were not of such character. The statute under which the charge is made is Section 1964, L. O. L., which reads:
“If any person shall, by any false pretenses or by any privy or false token, and with intent to defraud, obtain or attempt to obtain from any other person any money or property whatever, or shall obtain or attempt to obtain with the like intent the signature of any person to any writing the false making whereof would be punishable as forgery, such person, upon conviction,” etc.
Section 1541, L. 0. L., prescribes what evidence shall be requisite as proof of said crime, providing: .
“Upon a trial for having, by any false pretense, obtained the signature of any person to any written instrument, or obtained from any person any valuable thing, no evidence can be admitted of a false pretense expressed orally and unaccompanied by a false token or writing; but such pretense, or some note or memorandum there
Aside from the oral statements of the defendant, the principal representation relied upon by the State is a prospectus prepared and printed by defendant and his co-conspirators, and purporting to have been issued by the company, which said prospectus was offered for inspection to Mrs. Smith. It is headed in large capital letters:
"Another Great Opportunity in Oil Enterprise
“LAKE OIL, GAS AND PIPE LINE COMPANY
“Incorporated September 10, 1910.
“Authorized Capital Stock $500,000 * *
“The Greatest Paraffin Oil in the World Is Pound on Our Property”
This prospectus contains pictures of a gushing well, of derricks and wells, of parties on the surface of the ground dipping oil from a hole, of the ground where the timber has been killed by oil forced to the surface, and of a basin or hole said to have been caused by a blowout of gas. Also it makes the statement that the company owns 800 acres of land, which includes some of the best located and most valuable oil land in California, being considered absolutely proven oil land, where discoveries have already been made, and that the entire property is owned outright. The land is described therein by legal subdivisions. Upon the prospectus the company’s name and office number are affixed at the bottom of the first and of the last pages, and on the first page is printed in capital letters the name of W. H. Whiteaker, president, and £he names of the other officers and directors of the company. Defendant’s name is also ■ affixed to the description of the picture showing the timber killed by the exuding oil. There were exhibited to Mrs. Smith a small vial of oil labeled “Oil Taken From Holes Dug-at Three Feet in Depth From Our Property in Califor
We think the testimony tended to establish that the representations were made by defendant, and that many of them, as well as the statements contained in the prospectus and the source of the samples of oil, were false, and did induce Mrs. Smith to sign the said deed, and were sufficient to be submitted to the jury upon those questions, if the proof comes within the requirements of Section 1541, L. O. L., namely, if the false pretenses were accompanied by a false token or writing.
“If any person, with intent to defraud another, shall designedly, by color of any false token or writing, or any false pretense, obtain * * ” etc.
The opinion says that “the offense may be committed by two means: First, by color of any false token or
“A sign or mark; a material evidence of the existence of a fact. Thus, cheating by ‘false tokens’ implies the use of fabricated or deceitfully contrived material objects to assist the person’s own fraud and falsehood in accomplishing the cheat.”
In State v. Hanscom, 28 Or. 427, 439 (43 Pac. 167, 171), a false telegram, neither signed by nor in the handwriting of the defendant, was held to be a false token. And in Wagoner v. State, 90 Ind. 504, a false order for the payment of money is held to be a false token. The same principle is announced in Jones v. State, 50 Ind. 473, 475, where a false business card is held to be a false token. It is said in that case, in construing the Indiana statute above mentioned: “The gravamen of the crime consists in obtaining the signature of any per
“A material, visible sign of the existence of a fact. Thus, cheating by false tokens is perpetrating a fraud by employment of some material device, some cunningly devised false thing, in corroboration of one’s lying representations. Token, as used in a statute punishing false pretenses, signifies ‘a sign,’ ‘a mark,’ ‘a symbol.’ And the term ‘written token’ will include matters printed or lithographed.”
The conclusion we have reached in regard to the admissibility of the prospectus and the sample of oil disposes of the other assignments of error. Although the trial court did not admit them in evidence upon the ground upon which their admissibility is here determined, nevertheless they were properly admitted. We find no error in the record.
The judgment of the lower court is affirmed.
Affirmed: Rehearing Denied.