State v. Egan
| Decision Date | 26 October 1923 |
| Docket Number | 5310 |
| Citation | 47 S.D. 1,195 N.W. 642 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. GEORGE W. EGAN, Defendant and appellant. |
| Court | South Dakota Supreme Court |
GEORGE W. EGAN, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. James McNenny, Judge #5310--Affirmed Kirby, Kirby & Kirby, Sioux Falls, SD Attorneys for Appellant. Geo. W. Egan, Sioux Palls, pro se. Buell F. Jones, Attorney General, Britton, SD Byron S. Payne, Pierre, SD Attorneys for Respondent. Opinion filed October 26, 1923
This case was here on a former appeal. The judgment appealed from was reversed, and the case was sent back to the trial court for a new trial. 44 SD 273, 183 N.W. 652. The case was retried, and appellant was again convicted. From the judgment of conviction and from an order denying appellant a new trial, he brings the case here on a second appeal.
At the commencement of the first trial appellant entered a plea of not guilty and proceeded with the trial. At the beginning of the second trial he asked permission to withdraw his plea of not guilty, in order that he might interpose a demurrer to the information. This request was denied, and error is assigned. Permission to withdraw a plea of not guilty for the purposes of filing a dilatory plea is discretionary with the trial court, and when no substantial right of the defendant has been invaded by the refusal of such request the ruling of the trial court will not be disturbed on appeal. 16 C. J. 396.
Some of the matters that were presented and disposed of by this court on the first appeal are again presented and reargued on this appeal. Such matters have been given consideration by the court, but after such consideration we are satisfied with the conclusion reached on the first appeal, and as to such matters no further reference will be made.
The information, in substance, charges: That on the 6th day of September, 1919, the Firemen's Insurance Company of Newark, N. J., issued to appellant a policy, being a standard South Dakota policy, by the terms of which a certain 2 1/2-story frame building situated on a certain described tract of land in Minnehaha county was insured in the sum of $2,500, for the term of one year from the date of said policy. That within the said term, to wit, on the 24th day of November, 1919, the said building was totally destroyed by fire. That during the time covered by said policy of insurance, and prior to the destruction of said building, appellant had secured policies of insurance, insuring said property "against like loss or damage by fire," aggregating the sum of $27,500. That on or about the 9th day of January, 1920, appellant made out and presented to said Firemen's Insurance Company, through its agent at Sioux Falls, a proof of loss whereby appellant claimed and represented that the cause of the fire that destroyed the said building "was unknown; that the said building was occupied as a residence and summer home; that the value of the said building was $30,000; that said fire did not originate by any act or design or procurement on the part of the said George W. Egan, or in consequence of any fraud or evil practice done, or suffered to be done, by said assured; that nothing had been done by or with the said George W. Egan's privity or consent to violate the conditions of said policy of insurance theretofore issued by the Firemen's Insurance Company, or to render said policy void."
It is then alleged that the above statements set out in said proof of loss were false and fraudulent and were known to be false and fraudulent by the said defendant when they were made, in that the said building had not been totally destroyed, for that the basement and foundations remained intact; that the cause of the said fire was at the time known to the said George W. Egan, and that he himself had caused the said fire to be started for the purpose of destroying the said building; that the said building had not been occupied by the said George W. Egan as a residence or summer home, nor had it been occupied as a home or summer residence by any one during the time said insurance was in force, but that it had been used as a dancing pavilion and place for the storage of household goods; that the said building was not worth $30,000, as claimed and represented by appellant, but was of the value of approximately $2,000; that the said fire and destruction of the said building was procured by the said George W. Egan with the fraudulent intent of collecting money from said insurance companies greatly in excess of the value of the said building.
Appellant contends that the trial court erred to his prejudice in the admission of any evidence, on the grounds that the information does not conform to the provisions of section 4771, R. C.; that the information charges more than one offense; that the information does not describe a public offense; that no venue is laid, and that the court is without jurisdiction in the case; that the information does not state facts sufficient to constitute a public offense; that the insurance policy described in the information is not a standard policy under the law of this state; that the information does not allege a purpose to defraud the insurance company therein described; that the information contains no allegations that any false proof of loss was presented to the said insurance company, or to any person or agent of said company; that no public offense can be predicated upon a statement of value in a standard policy because the policy itself fixes the value.
No error was committed by the trial court in overruling the above objections. In the first place, with the exception of the question of venue, which was disposed of on the first appeal, and the question whether the information describes a public offense. These are all questions that should have been presented by demurrer (section 4771, R. C.), and under the provisions of section 4779 can be presented only on demurrer. In the second place, we have examined all of these questions and fail to find that appellant was in any manner prejudiced by the rulings complained of. Had all of these matters been presented on demurrer and had such demurrer been sustained, a new information could have been filed and a short delay in the trial would have been the only result.
It is contended by appellant that the information fails to describe a public offense, for the reason, among others, that it fails to allege that appellant presented a false or fraudulent claim against the said insurance company, but alleges only that he presented a false and fraudulent proof of loss. The language of the information is that appellant presented a false and fraudulent claim and proof in support of such claim and proof of loss. The information is drawn under the provision of section 4271. This section, so far as material, reads as follows:
etc.
In view of this statute, appellant's contention on this point is specious to say the least. The information very closely follows the language of the statute. It is the making of a false or fraudulent claim for a loss covered by the policy that constitutes the gist of the offense, and it is provided by the policy itself that claims for loss shall be made by presenting a proof of loss. And when the proof of loss is false or is made in furtherance of a fraudulent design or scheme to defraud an insurance company, the provisions of the statute are violated, and the offense is complete. This is the construction that has been put upon this section in New York (People v. Markheim, 162 App. Div. 859, 148 NY Supp. 155), where such statute has been in force since 1865. Section 644, NY Pen. C. 1865; section 1202, Gilbert's Crim. Code NY 1922. It is not contended by appellant that the information is not sufficiently specific so that a person of common understanding would know what is intended, and if it can be so understood then it is sufficient in law. Sections 4725, 4726, R.C.; State v. Morse, AnnCas 1918C, 570; People v. Lauman, 187 Cal. 214, 201 Pac. 459.
At the trial the state introduced in evidence certain policies, articles of incorporation, and certificates of authority to do business of insurance companies other than the Firemen's Insurance Company, and the admission of these exhibits is assigned as error. These exhibits were introduced for the purpose of showing what the state claimed to be excessive insurance carried by the appellant on the building involved and the false representations made by the appellant relative to the value of said building. Upon this theory and for this purpose these exhibits were competent to go to the jury.
Error is assigned upon the admission in evidence of two exhibits designated as Exhibits 32 and 33. These exhibits are written applications, made after the policy described in the information had been issued, for additional insurance on the building involved. It is claimed by the state that these applications contained certain, matters of fact that were false and misleading. These applications bore the signature of appellant. He claimed, however, that the matter claimed' by the state to be material had been inserted by other parties after he had signed them and without his knowledge or authority, and for that reason they were incompetent and not binding on him. A witness on behalf of the state testified that he was present when these applications were prepared, and that certain of the matters in question. which he specified had been inserted--and to appellant's knowledge--before they were signed. This was a sufficient foundation for the admission of these exhibits.
Over objection by appellant the trial court admitted evidence to show the actual value of the building destroyed. The policy involved is a standard South Dakota policy, and...
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