Bates v. State

• Citation: 124 Wis. 612,103 N.W. 251
• Parties: BATES v. STATE.
• Decision Date: 01 May 1905
• Court: United States State Supreme Court of Wisconsin

124 Wis. 612

103 N.W. 251

BATES

v.STATE.

Supreme Court of Wisconsin.

April 5, 1905.

Dissenting Opinion, May 1, 1905.

Error to Circuit Court, Dodge County; J. J. Fruit, Judge.

James M. Bates was convicted of false pretenses, and brings error. Reversed.

Plaintiff in error, hereinafter called “defendant,” was charged by information under section 4423, Rev. St. 1898, for that in Vernon county, Wis., by various specified misrepresentations as to the amount, quality, characteristics, and cost of a tract of land in Crawford county, Wis., on which he desired a loan, did receive and obtain from H. P. Proctor, the agent of one Nicholas Senn, “the sum of $1,500 of the money and property of said Nicholas Senn, with intent then and there to defraud”; the information further alleging the falsity of the representations to the knowledge of the defendant, and the credence thereof by said Proctor. Another count alleged substantially the same facts, with the additional one that the defendant at the same time made a written statement or application for loan embodying most of the representations. Two other counts were identical with those described, except that they alleged the representations were made to and deceived “H. B. Proctor & Son,” the agents of Nicholas Senn, and that he received and obtained the said sum from them. Upon the trial there was proof of the making of the representations to H. B. Proctor, of their falsity, and his reliance thereon, and that in reliance thereon said Proctor awarded the defendant a loan of $1,500 out of the moneys of said Senn, then in his hands as agent to loan the same; that out of the said loan Proctor retained $50 for his commission, and was requested by the defendant to send the balance of the money, $970 thereof, to one Bascom, of Lansing, Iowa, to whom defendant was then indebted for that amount of the purchase price, and the remainder, $470.75, to one Haggerty at Farryville, in Crawford county, Wis. Proctor accordingly drew and signed checks of his firm, went to the bank where his firm kept a deposit, and purchased two drafts of that bank on another bank for the above-mentioned amounts, less exchange, and mailed them to the respective persons above mentioned at their post-office addresses. There was evidence that Bascom got the money on the draft mailed to him at Lansing, Iowa. There was no evidence as to what became of the draft to Haggerty. Defendant, at the close of the state's evidence, moved for nonsuit or direction of verdict, but after such motions were overruled he introduced evidence in defense, and did not renew them at the close of all the testimony. After a general verdict of “guilty as charged,” the defendant moved for a new trial for errors in the instruction and in the admission and exclusion of evidence, and because the verdict of the jury was ambiguous and not specific, and because it was against the evidence and contrary to law, which motion was denied. For review of such order defendant sued out writ of error.

Marshall, J., dissenting.

C. J. Smith, for plaintiff in error.

L. M. Sturdevant, Atty. Gen., and Frank T. Tucker, Second Asst. Atty. Gen., for the State.

DODGE, J. (after stating the facts).

The first assignment of error is that the evidence did not establish the offense. The charge was of obtaining from H. P. Proctor, as agent, the sum of $1,500 of the money and property of Nicholas Senn. That this charges the obtaining of money specifically there can be no doubt. “The sum of $1,500” to the ordinary intelligence means money. To nothing else is the expression applicable. State v. Ryan, 34 Wash. 597, 603, 76 Pac. 90;Comm. v. Howe, 132 Mass. 250. Indeed, if it charged the obtaining of any other property, the information would be bad for lack of any allegation that such property was of value. What, in fact, was accomplished by means of the alleged representations, after inducing Proctor to accede to a loan on account of his principal, Senn, was that Proctor made out and signed two checks in the name of his firm, which he took to the bank, and from the bank obtained two drafts--one for $470.75, payable to the order of H. P. Proctor & Son; the other for $970, payable to the order of the Bank of Lansing, Iowa. The first of these Mr. Proctor mailed to one Haggerty, and the other he says he sent to one Bascom, but probably sent it to the Bank of Lansing, with directions to pay the money to Bascom upon delivery of the title deeds of the land mortgaged. These steps he took upon the request of the defendant merely that he send $970 of the loan money to Mr. Bascom and the balance to Mr. Haggerty, not prescribing the method of transmission. Upon this state of facts it is, of course, apparent that the defendant never did personally obtain from Mr. Proctor any money, and the question is whether the transaction above described can in any way constitute the equivalent for that statutory description of the offense with which he is accused. The gravamen of the crime is the obtaining of the property described, as will be shown by the authorities hereinafter cited upon the question of the place of the crime. This statute, like other criminal statutes, must receive strict construction. State v. Kube, 20 Wis. 217, 225, 91 Am. Dec. 390;State v. Black, 75 Wis. 490, 44 N. W. 635; 2 Bishop, N. Cr. L. 415; People v. Poucher, 30 Hun, 576. This for at least two practical objects: First, that the accused may be unambiguously notified of the acts charged, in order to prepare his defense; and, secondly, to the end that in case of either conviction or acquittal he shall not be subject to be again put in jeopardy for the same offense for which he has been once tried. In pursuance with that view it has been held that the proof must establish the obtaining of the very property alleged in the information, or some part of it; that an allegation of obtaining money is not satisfied by proof of obtaining some other property, even so nearly the equivalent of money as evidences of money indebtedness or orders to pay money. Schleisinger v. State, 11 Ohio St. 669;Baker v. State, 31 Ohio St. 314; Commonwealth v. Howe, supra; Comm. v. Wood, 142 Mass. 459, 8 N. E. 432; Queen v. Bradley, 26 U. C. Q. B. 13; People v. Haynes, 14 Wend. 546, 28 Am. Dec. 530. Other illustrations of the necessity that money, as such, should actually pass from the hand of the defrauded person to that of the accused in order to support the charge of obtaining money, are numerous. Thus fraudulently obtaining consent to the entry of a judgment against a city is held not sufficient, although the judgment be afterward paid, and the money actually received by accused, without further misrepresentation (Comm. v. Harkins, 128 Mass. 79); procuring a pre-existing account to be receipted and balanced (Comm. v. Usner, [Pa.] 6 Lanc. Law Rev. 121; Moore v. Commonwealth, 8 Pa. 260); or obtaining indorsement of credit on a note (Reg. v. Eagleton, 1 Jur. N. S. 944; State v. Moore, 15 Iowa, 412); obtaining a credit entry to one's account with his banker (Rex v. Wavell, 1 Moo. C. C. 224); obtaining transfers of accounts so as to result in a credit to the accused (Reg. v. Crosby, 1 Cox, C. C. 10; Jamison v. State, 37 Ark. 445, 40 Am. Rep. 103). Obtaining shipping receipt does not support charge of obtaining the goods (People v. Haynes, supra); charge of obtaining property not supported by obtaining board and lodging (State v. Black, supra). The absolutism of the necessity for actual physical tradition from the accuser to the defendant personally was early relaxed to the extent of holding that a delivery to a person designated by the defendant to receive for his benefit would suffice. Reg. v. Jones, 1 Den. C. C. 551; Sandy v. State, 60 Ala. 58; Comm. v. Taylor, 105 Mass. 172;Comm. v. Wood, 142 Mass. 459, 8 N. E. 432;Comm. v. Karpowski, 167 Pa. 225, 31 Atl. 572; Comm. v. Schmunk, 22 Super. Ct. Rep. (Pa.) 348; s. c., 207 Pa. 544, 56 Atl. 1088, 99 Am. St. Rep. 801. This was on the theory that defendant expressly constituted the person so designated his agent, and that by such delivery the property passed out of the title, possession, and control of the accuser and into that of the defendant as completely as if the physical delivery had been to the latter in person. In Comm. v. Karpowski, supra, the Pennsylvania court dispensed with express designation of the recipient, and assumed analogy with the rule applicable to mere technical passage of title upon sale of goods by delivery to any public carrier by raising an implication of agency from general mercantile custom. This analogy was declared false, however, in Comm. v. Schmunk, supra, and such a delivery held not a consummation of the crime of “obtaining” the property, because the accuser had power to reclaim it at any time before actual delivery to the defendant if he discovered the fraud; hence it had not been fully obtained from the former by delivery to the carrier. That principle that, so long as the defrauded party retains either title or control over the property, the crime of obtaining is not consummated, has general support both in reason and authority. Reg. v. Watson, D. & B. 348; State v. Anderson, 47 Iowa, 142;Fenton v. People, 4 Hill, 126; Rex v. Evans, L. & C. 252; State v. McGinnis, 71 Iowa, 685, 33 N. W. 338; Moore v. Commonwealth, supra; State v. Moore, supra.

Testing the transaction above narrated by these established rules of law, obviously defendant did not obtain by delivery to himself any money; nor, indeed, anything else. If the evidence were sufficient to establish such a direction to Proctor to deliver drafts or money at the post office as to constitute an agency in the officials (of which no opinion is expressed), still it would not be until that delivery was made that anything was obtained by defendant or parted with by Proctor. If at any moment prior to that delivery the latter had learned of the falsity of the representations, and therefore ceased to rely...