Balsamo v. Sheriff, Clark County
| Decision Date | 15 June 1977 |
| Docket Number | No. 9606,9606 |
| Citation | 565 P.2d 650,93 Nev. 315 |
| Parties | Vito BALSAMO, Appellant, v. SHERIFF, CLARK COUNTY, Nevada, Respondent. |
| Court | Nevada Supreme Court |
Morgan D. Harris, Public Defender and Robert B. Amundson, Deputy Public Defender, Las Vegas, for appellant.
Robert List, Atty. Gen., Carson City, George E. Holt, Dist. Atty. and J. Michael McGroarty, Deputy, Dist. Atty., Las Vegas, for respondent.
At the conclusion of a preliminary examination, Vito Balsamo was ordered to stand trial for obtaining money in an amount exceeding $100 under false pretenses, a felony under NRS 205.380. He then filed a pretrial petition for a writ of habeas corpus contending the evidence adduced before the magistrate was insufficient to support the charge. The district judge denied habeas and, in this appeal, Balsamo advances the same contention.
Balsamo agreed to perform certain construction work for Herbert Frey. In order to purchase the materials for the job, Balsamo obtained from Frey a check in the amount of $1500; however, although frequently requested, Balsamo did not start, much less complete, the job. 1
The thrust of Balsamo's argument below, and here, is that the unkept promise to perform services for Frey cannot support the charge of obtaining money by false pretenses because the promise relates to a future fact. We disagree.
In support of his contention, Balsamo relies principally on the case of Polisher v. State, 11 Md.App. 555, 276 A.2d 102 (1971), which said a false representation must be to a past or existing fact before a person can be guilty of the charged crime.
In our view, People v. Ashley, 42 Cal.2d 246, 267 P.2d 271, 281 (1954), sets forth the better rule, which we adopt. It is that "a promise made without intention to perform is a misrepresentation of a state of mind, and thus a misrepresentation of existing fact, and is a false pretense within the meaning of (NRS 205.380)". 2 The reason for the rule was enunciated by Mr. Justice Traynor, who wrote: "If false promises were not false pretenses, the legally sophisticated, without fear of punishment, could perpetrate on the unwary fraudulent schemes like that divulged by the record in this case and . . . would sanction such schemes without any corresponding benefit to the public order." Id. 267 P.2d at 283.
Here, there is no suggestion that Balsamo's misrepresentations were made innocently or inadvertently; thus, we are not concerned with a criminal proceeding instigated by a disgruntled creditor against one who has blamelessly encountered a commercial default. Cf. United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88...
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State v. Moore
...majority view. See People v. Ashley, 42 Cal.2d 246, 267 P.2d 271 (1954); State v. West, 252 N.W.2d 457 (Iowa 1977); Balsam v. Sheriff, 93 Nev. 315, 565 P.2d 650 (1977). Perhaps the most instructive case is People v. Ashley, 42 Cal.2d 246, 267 P.2d 271 cert. denied, 348 U.S. 900, 75 S.Ct. 22......
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Hale v. Burkhardt
...recognize that a promise made without intention to perform might constitute a false representation of a state of mind, Balsamo v. Sheriff, 93 Nev. 315, 565 P.2d 650 (1977), but Hale does not allege that Burkhardt entered into the agreement while having no intention to perform. Hale only sta......
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