Anderson v. State

• Decision Date: 14 April 1921
• Docket Number: 991
• Citation: 196 P. 1047,27 Wyo. 345
• Parties: ANDERSON v. STATE
• Court: Wyoming Supreme Court

196 P. 1047

27 Wyo. 345

ANDERSON v. STATE

No. 991

Supreme Court of Wyoming

April 14, 1921

ERROR to the District Court, Converse County, ERNEST C. RAYMOND Judge.

Frank E. Anderson was convicted of obtaining property by false pretenses and brings error. The facts are stated in the opinion.

Judgment reversed and cause remanded.

S.E Phelps, for Plaintiff in Error.

The information did not state an offense; alleged false pretenses are insufficiently charged. The check in question was not fully described. There was no allegation that G. S. Williams was defrauded. (Current v. People, 153 P. 684; Kraft v. State, 217 S.W. 1038; Bonnell v State, 64 Ind. 498; Martins v. State, 17 Wyo 319; 98 P. 709; People v. Weakley, 62 Mich. 297; 28 N.W. 871.) The defrauding of complaining witness is the gravamen of the offense. The word "obtained" is not sufficient by itself to allege the crime. McCann v. U.S. 2 Wyo. 274; McGinnis v. State, 16 Wyo. 76, 91 P. 936; U. S. v. Post, 113 F. 154; State v. Sekrit, 32 S.W. 977, where it was said "the defendant must be specially brought within all the material words of the statute, and nothing can be taken by intendment" 22 Cyc. 339; U. S. v. Cook, 17 Wall. 174; 21 L.Ed. 538. The prosecutor was guilty of misconduct by referring in his argument to the unsworn statement of defendant. Leslie v. State, 10 Wyo. 10, 69 P. 2; State v. Holmes, 65 Minn. 236; 68 N.W. 11; Wilson v. U. S. 149 U.S. 68; 37 L.Ed. 650.) The state was not entitled to cross examine upon an unsworn statement made by defendant, but it is improper to refer to the fact. (State v. Taylor, 7 Idaho 134; 61 P. 288.) Instruction No. 5 with reference to an unsworn statement was prejudicial to defendant. (Comp. Stats. 1910, Sec. 6210, Leslie v. State, supra.) Defendant's motion for a direct verdict for insufficiency of evidence should have been sustained. (22 Cyc. 339; McCann v. U. S. 2 Wyo. 274 State v. Sekrit, 32 S.W. 977.) The charging words of the information relate only to the first representation alleged. This is insufficient Current v. People 153 P. 684. That the representation as to control of Glendo Bank by Plymouth Security Company was insufficiently set forth and the same may be said of allegations with reference to other representations as to control of said bank, and the deed as to stockholders also as to defendant representing himself as a director of the Miles City Bank and vice president of the Rosebud Montana Bank. It was error to permit the testimony of Backland as rebuttal as defendant had made his statement. Thompson on Trials (2 Ed) Sec. 664. It was error to admit the testimony of witness to the effect that he had seen defendant in the Minnesota penitentiary as a prisoner. The giving of instruction No. 3 insufficiently stated the elements of the offense and was erroneous, Martins v. State, supra. Refusal to give defendants requested instruction No. 1 was erroneous, for the reason that it did not state the law relating to the elements of the offense. Lively v. State, 74 S.W. 321. The Court erred in giving instruction No. 1 of the state wherein it was set forth that complaining witness was defrauded by defendant. (U. S. v. Cook, 17 Wall. 174; 21 L.Ed. 538.) The Court erred in stating to the jury during defendant's testimony that any attempt on the part of defendant to settle the matter or return the money or the notes, as shown by the testimony, was no defense at all. This statement was clearly prejudicial to defendant and coming from the Court during the giving of defendant's testimony undoubtedly prejudiced the jury against defendant. The Court erred in overruling defendants motion in arrest of judgment. The sentence imposed by the trial court reflects prejudice and is entirely out of proportion to the offense alleged to have been committed.

W. L. Walls, Attorney General, and Vincent Carter, Deputy Attorney General, for Defendant in Error.

The information as framed charged an offense under the law for obtaining choses in action, money etc. by false pretenses with intent to cheat and defraud. (State v. Alexander, 119 No. 448; Com. v. Devlin, 141 Mass. 423.) The testimony of Joseph Backland to which exception was taken does not appear to be material in fact the witness would not testify to any fact or circumstances concerning which the defendant was then upon trial. The fact that Anderson had been an inmate of the Minnesota State prison was immaterial except as affecting the question of his credibility. Exception is taken to remarks of the prosecutor with reference to the unsworn statement made by defendant under the rule provided by 6210 Comp. Stats. As the state was precluded from cross examining defendant as to facts stated in his unsworn statement, it would seem that the state should be permitted to at least explain why there was no cross examination. The point was fully covered by instructions of the court. Upon the whole record, it is clear that the Court did not err in refusing a directed verdict of not guilty. The case of Current v. People, 153 P. 684, cited by plaintiff in error as against the sufficiency of the information does not seem to be fairly in point. Smith v. State, 33 Ind. 159 and Bonnell v. State, 64 Ind. 498 which support the rule that it is necessary to set out a copy of the instrument in the information in cases of this class, was over ruled in the case of Lefler v. State, 153 Ind. 82, which seems to be a more reasonable interpretation of the statute. Neither is the case of Martin v. State, 17 Wyo. 319 applicable with reference to the question of fraud. The fact that the complaining witness was deprived of his property by false representations constitutes fraud. (Com. v. Ferguson, 121 S.W. 967; 24 L. R. A. 116.) The essential elements of proof seem to be clearly stated in People v. Weakley, 62 Mich. 297 and the present case comes within the rule. The case of McGinnis v. State, 16 Wyo. 72 does not sustain the contention of plaintiff in error. The rule announced there was that unless the statute fully sets forth the elements of the offense the material facts and circumstances must be alleged in addition to the language of the statute. The information in the case at bar meets the requirements stated in U. S. v. Post, 113 F. 852; 22 Cyc. 339; U. S. v. Cook, 17 Wall. 174. This case differs from Leslie v. State, 10 Wyo. 10 for the reason that here the defendant made an unsworn statement, so it was proper for the Court to instruct the jury as to the nature of the law of which defendant availed himself in making such statement. Defendant was not, in a legal sense, a witness in the case and it was proper for the jury to be instructed as to the nature of the statute under which defendant made his statement. Certainly Section 6210 Comp. Stats. 1910 was not devised to obstruct or cheat justice. It was in fact devised as is shown by its history to remove certain common law disabilities under which accused persons labored. Lying misrepresentations made for the purpose of inducing other persons to part with their property, are nevertheless, legal even though characterized "mere puffs". The Court instructed the jury fully and completely on the law of the case, and it would seem that defendant had a fair trial. The rules of exactness contended for by plaintiff in error would render it impossible to successfully prosecute a criminal for false pretenses. The statements made by defendant to Dr. Williams were undoubtedly made to cheat and defraud him and did defraud him of property of the value of $ 25.00. Com. v. Ferguson, supra. The verdict of the jury and judgment of the Court should be affirmed.

S.E. Phelps for plaintiff in error.

The information clearly shows that there is no connec tion between the second and subsequent alleged representations. Exceptions to the information are sustained by Current v. People, 153 P. 684. It was error for the Court to refuse defendants instruction No. 1. The information, while charging the obtaining of a check with intent to cheat and defraud Williams, complaining witness, does not allege that Williams was in fact defrauded. The Kentucky statute makes the intent or attempt to commit fraud a crime, and of course under such statute it is immaterial whether the complaining witness was actually defrauded or not. That Wyoming has no statute making it a crime to attempt to obtain goods by false pretenses is pointed out in Martin v. State, 17 Wyo. 319, and as we read that opinion it is necessary that the complaining witness was actually defrauded in order to constitute the crime of false pretenses. People v. Weakley, 62 Mich. 297, to the same affect requiring proof that the complaining witness was actually defrauded. For the above reason the case of Com. v. Ferguson, (Kentucky) is in point here. Suppose the check in question was invalid. There would be no crime committed in obtaining it from the holder in that event. People v. Morphy, 34 P. 623. Lefler v. State, supra, is silent as to the description of the property obtained and does not sustain defendant in error. The check and note should have been pleaded in haec verba. The witness Backland was called into Court by the prosecutor for the purpose of trying to surprise and embarrass the accused while he was making his statement to the jury; the testimony of the witness Backland was offered as rebuttal and as no rebuttal was permissible, under the circumstances, it should have been excluded.

The entire testimony of Backland was inadmissible under the circumstances. Proof of perpetration of a separate and distinct crime is not admissible in aid of conviction upon another crime charged. Horn v. State, 12 Wyo. 80. Paulson v. State, 94 N.W. 771. The conduct of the prosecutor in commenting upon defendant's unsworn statement and the absence of...