Chappell v. State

• Decision Date: 25 March 1940
• Docket Number: 27297.
• Citation: 25 N.E.2d 999,216 Ind. 666
• Parties: CHAPPELL v. STATE.
• Court: Indiana Supreme Court

25 N.E.2d 999

216 Ind. 666

CHAPPELL v. STATE.

No. 27297.

Supreme Court of Indiana

March 25, 1940

Appeal from Criminal Court, Marion County; Dewey E. Myers Judge.

Edward W. McElfresh, of Indianapolis, for appellant.

Omer S. Jackson, Atty. Gen., and Hubert E. Dirks, Dpty. Atty Gen., for appellee.

SWAIM Judge.

The appellant and one Kenneth Pollitt entered into a conspiracy to procure a gold watch from the Kay Jewelry Company without paying therefor. According to their plan Pollitt, who was unemployed, went to the jewelry company and bought the watch on a conditional sales contract, falsely representing to said company that he was then, and had been for eighteen months, steadily employed by the Carburetor & Ignition Service Company. He gave the number of a telephone which he falsely represented to be the telephone number of said service company, but which in fact was the telephone number of a garage where the appellant, pursuant to their plan, was stationed waiting for the call from the jewelry company. The appellant answered the call of the jewelry company, falsely represented that he was speaking for said service company, and falsely represented that the said Pollitt was employed by said service company as he (Pollitt) had stated. The jewelry company was induced by these false representations to deliver the watch to Pollitt upon his making the initial payment and executing the conditional sales contract. After receiving the watch Pollitt delivered it to the appellant.

The total purchase price of the watch was $42.50 and said contract provided that the watch should 'remain the property of the company until said property is paid for in full as hereinbefore provided'; that the company should have the right to repossess the watch on certain contingencies; and that if any of the deferred payments should become delinquent the company might declare 'the entire balance of the purchase price due and then collectible irrespective of its rights to possess said property'. The contract provided further that upon the insolvency or bankruptcy of the purchaser 'the unpaid purchase price for the aforementioned property shall ipso facto be immediately due and payable in its entirety to the company'. After the fraud was discovered the appellant was indicted on two counts, (1) conspiracy to commit a felony and (2) grand larceny. A trial by the court resulted in a finding that the appellant was guilty. The judgment of the court provided for a fine of $25 and a sentence of two to fourteen years in the Indiana State Prison.

The only error assigned is the action of the court in overruling the appellant's motion for a new trial, which motion stated three alleged grounds, to-wit: that the finding (a) was contrary to law, (b) was not sustained by sufficient evidence, and (3) that the court erred in overruling appellant's motion for discharge at the close of the state's evidence. The propositions and authorities of the appellant are all directed to the first two of said grounds for a new trial.

The appellant has not assigned as error the action of the court in overruling his motion to quash the indictment and there is, therefore, no question before us as to the sufficiency of the indictment. The sentence imposed indicates that the appellant was found guilty on the first count of the indictment. If the evidence is sufficient to support the finding of the court that appellant did the acts charged in the first count of the indictment and that said acts were done with the felonious intent as therein charged; and if these acts with such felonious intent constitute the crime of conspiracy to commit a felony, then the judgment of the court must be affirmed.

The appellant's brief is in substantial compliance with the rules of this court, therefore, this appeal will be considered on its merits.

Appellant contends that the facts shown by the evidence do not constitute the crime of conspiracy to commit the felony of obtaining property by false pretenses, because the conditional sales contract provided that title to the watch should not pass until the full purchase price thereof had been paid. In support of this contention appellant insists that in order to constitute the offense of obtaining property by false pretenses the owner of the property, relying on the fraud, must intend to pass title to such property, and cites Roberts v. State, 1914, 181 Ind. 520, 104 N.E. 970, which case holds that where an owner had been induced by fraud to deliver a check intending to pass title thereto, the one perpetrating the fraud was not guilty of larceny. In that case the court said that since the owner intended to pass title to the check the wrongdoer was guilty of obtaining property by false pretenses. In most of the cases where the courts have distinguished between the two crimes on the fact as to whether title passed, the property in question was money and the owner either intended to part with the absolute title or intended to give only bare possession with no interest in or claim to the property.

Our statute defining the crime of obtaining property by false pretenses states that, 'Whoever, with intent to defraud another, designedly, by color of * * * any false pretense obtains * * * the transfer of * * * anything of value * * *' shall be guilty of the crime. Section 10-2103 Burns' 1933,§ 2747, Baldwin's 1934. There is no question in the instant case as to the 'intent to defraud'. The evidence also shows that the 'false pretenses' were made 'designedly' for the purpose of procuring the property and that the 'transfer' of ...