259 S.W. 451 | Mo. | 1924
Lead Opinion
The defendant was convicted of having obtained a loan of $4000 from the Union State Bank of Kansas City by false pretenses as to his financial worth, and sentenced to a term of four years in the penitentiary. The information is based on Section 3343, Revised Statutes 1919.
The appellant, by his motion in arrest, challenges the sufficiency of the information. Omitting formal parts, it charges that on May 25, 1920, the defendant did then and there "represent, pretend and say to the Union State Bank, its agents and officers, that he, the said Nathan Zingher, then and there had in his possession, under his control and owned by him assets amounting to $34,700, and that his total liabilities were $7900, and *653 that he, the said Nathan Zingher, was then and there actually worth in moneys and property over and above his debts, liabilities and exemptions, the sum of $26,800, and that the amount of all his liabilities of any kind or character whatever on the 25th day of May, 1920, amounted to $7900." Then follow averments that the officers and agents of the bank, believing and relying on said representations, made defendant a loan of $4000 of the bank's money, and the defendant, by means of said false pretenses, obtained a loan of $4000 from the bank, with intent to cheat and defraud, and that defendant did not then and there have assets in the amount of $34,700; that $7900 was not all of his liabilities, and defendant was not worth over and above his debts, liabilities and exemptions, $26,800.
I. The statement, as pleaded, was that the defendant had assets, etc.; that his total liabilities were $7900, and that he was worth in moneys and property over and above his debts, liabilities and exemptions, the sum of $26,800. Obviously the statement of the value of his property and of his netOpinion worth was not the statement of the value of hisor Fact. property and of statement of a fact, but the defendant's opinion or judgment. In 25 Corpus Juris, p. 595, sec. 19, it is said: "The statement of an opinion or judgment, even if false, will not sustain an indictment for obtaining property by false pretenses." See cases cited in note, among others, that a certain party was wealthy or worth a certain specified amount, citing Com. v. Stevenson,
In State v. Barbee,
The subject was thoroughly considered by the late Judge ELLISON in Bragg v. Kirksville Packing Co.,
"Now it is held in many jurisdictions and commonly stated in text-books that mere statements of value are not actionable, and even if made in bad faith, they were to be regarded as `dealers talk.' Massachusetts affirms the latter view (Deming v. Darling,
"It is so natural for one to look with favor upon his own property, and such is his selfish desire to extol its value, that men, as far back as we know anything of them, have ever understood that it was unsafe to trust to the opinion of a seller as to the worth and virtue of his own property. . . . *655
"The latest discussion and ruling we have on this subject in this State is found in Stonemets v. Head,
"Summing up (p. 268) Judge LAMM asserts that if the purchaser stands on an equal footing with the seller, he has no right to rely on opinions of value which the latter may express. Furthermore, that he has no such right unless it be out of the power of the purchaser, by reasonable effort, to ascertain such value for himself. A number of authorities are cited in support of these propositions, among them, are Cahn v. Reid,
Syllabus 3 in State v. Marion,
There are no averments in the information that bring this case within any exception to the general rule recognized in the cases cited. We must therefore hold that the representations pleaded as to the value of the defendant's property and his worth furnish no basis for a criminal prosecution.
II. There is no averment that the defendant materially exaggerated his net worth or that his debts materially exceeded $7900, or that he was not solvent or that the bankOmission of lost a penny on the loan. In criminal pleadingMaterial nothing can be charged by implication or intendment.Averments. [22 Cyc. 293.] *657
The law will presume that what the indictment does not charge does not exist. "Now in this case we know (because the indictment does not charge it) that defendant did not represent to Kern that Watson was solvent." [State v. Barbee,
In 25 C.J. 608, it is said: "While the statutes do not in express language require that the person from whom the property is obtained should be defrauded thereby, but only that it is obtained with intent to defraud him, nevertheless it is held as a general rule that the crime is not committed unless the prosecutor is in fact defrauded." [See also State v. Donaldson,
On the other hand, it has been held that if the crime has been committed, it is no defense that the prosecutor has or could recover for any loss he has sustained or that the accused has paid or offered to pay for the property obtained. [25 C.J. 615 (47).]
III. Instruction 2, given for the State, covers three and a half pages of the printed abstract of the record. It predicates the case upon the averments of the information, andInstruction. concludes, in substance, that if the jury further finds from the evidence that, whereas in truth and in fact the defendant did not then and there have in his possession assets owned by him in the amount of $34,700, and whereas in truth and in fact $7900 was not then all of the liabilities of the defendant and whereas the defendant was not then and there worth over and above his debts, liabilities and exemptions the sum of $26,800, all of which he then and there well and truly knew, if you so find, then you will find the defendant guilty, etc.
The court refused an instruction prayed by the defendant, as follows: "The court instructs the jury that *658 if you believe and find from the evidence that on the 25th day of May, 1920, defendant was possessed of sufficient assets to discharge all his debts or in good faith believed that he was solvent and able to pay his debts at the time he borrowed the money mentioned in evidence from the Union State Bank and at said time did not intend to cheat and defraud said bank, then you should find the defendant not guilty."
If, under the instruction given for the State, the jury found the defendant misrepresented his indebtedness and the value of his property in the sum of one dollar (they were evidently lump sums) they were required to find the defendant guilty, notwithstanding he may have had ample assets to meet his liabilities at the time he obtained the loan before the slump in values set in, which, as every one knows, disastrously affected the business of the entire country. Under that view, no business man would be safe in signing a financial statement for the purpose of obtaining credit.
By the very terms of the statute the intent to cheat or defraud is an essential element and the very essence of the offense. Absent this element there is no crime. [State v. Mastin,
IV. There are several apparent discrepancies between the allegations in the information and the proofs. The information charges that the defendant represented that he was worth in moneys and property over and above his debts, liabilities and exemptions, the sum of $26,800, and that the amount ofVariance. all his liabilities of every kind and character whatever, on the 25th day of May, 1920, amounted to $7900.
The defendant's written statement read in evidence, on the faith of which the loan was made, recites: "Total *659 current liabilities, $7900; Net worth (exemptions not mentioned) $26,800." In his statement of assets is this item: "Merchandise at cost, $20,000." Lower in the statement appear items of indebtedness of $5000 to each of two banks. It is a cardinal rule in pleading that the allegations and proofs must correspond. [Kelly's Crim. Law (3 Ed.) sec. 241.] "The allegation as to the pretense which was relied upon must be proved as laid, a variance in this respect being fatal." [25 C.J. 640.]
In State v. Plant,
The statement made by Zingher was that his current (not his total) liabilities amounted to $7900. Some meaning must be given to the word "current" as in the expression "current bills of liabilities." The statement expressly showed that he owed other large sums. In the estimate of his total worth nothing was said about exemptions. The items of merchandise, as stated above, was set down at cost, $20,000. It was not stated that $20,000 was its present, actual value. There was a total failure of proof of the allegations as to the alleged false pretenses. The demurrer to the evidence should have been sustained. *660
The three-year Statute of Limitations (Sec. 3737, R.S. 1919) having run, we are not authorized to remand theLimitations. case for a new trial on a proper information, as required by Section 4084, Revised Statutes 1919, when there is reasonable ground to believe that the defendant can be convicted. The judgment is therefore reversed and the defendant discharged. Railey, C., concurs.
Addendum
The foregoing opinion of HIGBEE, C., is hereby adopted as the opinion of the court. All of the judges concur.
Headnotes 1, 3, 4 and 5: False Pretenses: 1, 25 C.J. sec. 19; 3, 25 C.J. sec. 95; 4, 25 C.J. sec. 31; 5, 25 C.J. secs. 74, 75. Headnote 2: Indictments and Informations: 31 C.J. sec. 179;False Pretenses, 25 C.J. sec. 60. Headnote 6: Criminal Law: 16 C.J. sec. 341, 17 C.J. sec. 3758.