Boultinghouse v. State
| Decision Date | 15 September 1923 |
| Docket Number | A-4088. |
| Citation | 218 P. 173,24 Okla.Crim. 369 |
| Parties | BOULTINGHOUSE ET AL. v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
In a prosecution for false pretense, where the original pretense consisted of a false representation that a fictitious person was in the employment of a corporation and his name was caused to be entered upon the pay roll of the corporation for the purpose of drawing wages for services not rendered, the fraudulent payment of wages, from time to time thereafter, on recurring pay days, and the fraudulent issuance, receipt, and cashing of such fraudulent checks, constituted separate and distinct offenses. Each fraudulent issuance and payment of such a check may be considered as a separate reiteration or repetition of the original false pretense.
Where an information in ten separate counts charges that money was fraudulently obtained through the payment of ten separate checks issued to a fictitious person on recurring pay days such information is subject to demurrer on the ground of duplicity. But where such demurrer is interposed and overruled, and the accused then makes a motion requiring the state to elect upon which count it will rely for conviction and the motion to require an election is sustained, and the state, in compliance with the court's order elects to stand upon one count only, and by appropriate instructions the court instructs the jury to consider the evidence as affecting that count alone, and where all the evidence introduced was properly admissible and relevant, as tending to support the accusation contained in that count, under the circumstances here, the overruling of the demurrer was harmless.
In a prosecution for false pretense, where the question of intent is of vital importance, evidence of similar transactions both before and after the one charged is admissible to prove intent, where the different transactions indicate a scheme plan, conspiracy, or system to defraud.
Appeal from District Court, Oklahoma County; Edward D. Oldfield Judge.
S. F. Boultinghouse and another were convicted of obtaining money under false pretenses, and they appeal. Affirmed.
Giddings & Giddings, of Oklahoma City, for plaintiffs in error.
Geo. F. Short, Atty. Gen., N.W. Gore, Asst. Atty. Gen., and Robert Burns, Co. Atty., of Oklahoma City, for the State.
S. F. Boultinghouse and C. B. Hiler, plaintiffs in error, herein referred to as the defendants, were on the 20th day of March, 1920, informed against jointly with H. E. Guffin and Mrs. M. B. Langdon. The information charged that the defendants by means of tricks, deceptions and false and fraudulent representations kept and maintained upon the pay rolls of Morris & Co. certain fictitious employés and caused to be issued to such fictitious employés pay checks for services which they represented had been performed by these fictitious persons fraudulently placed upon the pay rolls, and that these defendants and their associates fraudulently caused the checks so issued to be paid, and that the money so obtained was divided among them.
At the trial, on April 1, 1921, the defendants were, by a verdict of the jury, found guilty. The punishment of defendant Boultinghouse was by the jury fixed at a term of 3 years in the penitentiary and a fine of $100, and the punishment of defendant Hiler was assessed at 18 months in the penitentiary. From the judgments on these verdicts the defendants prosecute this appeal.
The information charges the defendants and those acting with them with having obtained checks and money belonging to Morris & Co. by means of tricks, deceptions, and false and fraudulent representations, consisting of a conspiracy among certain timekeepers and secretaries of this company to carry on the pay rolls of the company certain fictitious persons, among whom was one designated Vincent Bodine, to whom the checks were issued and made payable, and that the conspirators on successive pay days caused these checks so fraudulently issued to Vincent Bodine to be cashed and the proceeds divided among the conspirators. The checks so issued and the proceeds so appropriated were in different amounts, and issued and fraudulently appropriated at different times. The information recites the facts at great length, in detail, in ten separate counts, describing in each count the issuance and payment of one of these checks, all of which were issued to Vincent Bodine, a fictitious person, and that they were from time to time cashed and paid to one of the conspirators and the money then divided among them all.
To the information as a whole, separate demurrers were filed by the defendants, setting out, among other things, that more than one offense was set forth in the information. The demurrers were by the court overruled. Subsequently, on the 28th day of March, 1921, these defendants announced ready for trial, and the trial proceeded without any objection on the part of defendants to the introduction of evidence.
At the close of the state's testimony, the defendants, and each of them, interposed what they termed a demurrer to the evidence--equivalent to a request for an instruction to render a verdict in favor of the defendants--on the ground that the several counts in the information and the proof were duplicitous. These requests for an instructed verdict were by the court denied.
The defendants then requested that the state be required to elect upon which one of the checks or payments, as described in the different counts of the information, the defendants would be required to make a defense. This motion was sustained, and the state elected to stand on the fraudulent receipt of money described in the first count; whereupon the trial proceeded and the defendants introduced their testimony. At the close of all the testimony, the defendants requested the following...
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