APPEAL
from a judgment of the Superior Court of the County of Pima.
Wm. G. Hall, Judge. Judgment reversed.
OPINION
McALISTER, J.
One
Laura Pearson Shepley Clark was accused by the county
attorney of Pima county by information filed April 14, 1938
of the crime of "Confidence Game, a felony," and
from a judgment of conviction and the denial of her motion
for a new trial, she has appealed.
The
reporter's notes were not transcribed, so the record here
does not include the evidence. The assignments challenge
mainly the sufficiency of the information, hence it will be
well to reproduce that pleading. It reads as follows:
"In
the Name and by the Authority of the State of Arizona, Laura
Pearson Shepley Clark, alias Mrs. L. P. S. Clark
alias Leo Clark, alias Laura P. Shepley, on
this 14th day of April, 1938, is accused by the county
attorney of and for the county of Pima, state of Arizona, by
this information of the crime of Confidence Game, a felony,
committed as follows, to-wit:
"The
said Laura Pearson Shepley Clark (omitting aliases
here and hereafter) on or about the 14th day of September,
1936, and before the filing of this information, at and in
the county of Pima, state of Arizona, did then and there
knowingly, willfully, unlawfully and
feloniously commit the crime of obtaining a valuable thing
(to wit, one negotiable instrument of the value of Fifty
Dollars ($50.00) lawful money of the United States of
America) from one Harry H. Fleming, with intent to cheat and
defraud, by means of false and fraudulent representations,
statements and pretenses, a felony, committed as follows, to
wit:
"That
the said Laura Pearson Shepley Clark on or about the 14th day
of September, 1936, at and in the county of Pima, state of
Arizona, did then and there knowingly, willfully, unlawfully,
and feloniously and with intent to cheat and defraud one
Harry H. Fleming, falsely and fraudulently
represent, state and pretend to the said Harry H. Fleming
that there was then and there on specific deposit in the
Valley National Bank in the City of Tucson, county of Pima,
state of Arizona, the sum of several million dollars, lawful
money of the United States of America, which said money was
on deposit in the said Bank aforesaid as and for payment of
and for certain gold bullion treasure which she, the said
Laura Pearson Shepley Clark had found, and that the said sum
of money then and there in said Bank as aforesaid was to be
distributed forthwith by said Bank to the said Laura Pearson
Shepley Clark, the said Harry H. Fleming and numerous other
persons who had advanced money and other articles of value to
the said Laura Pearson Shepley Clark and that some additional
money was needed by the said Laura Pearson Shepley Clark then
and there to defray expenses of stenographic and notary fees
incident to the drawing up of documents providing for the
distribution of the said money then and there on deposit in
the said Bank as aforesaid to the said Laura Pearson Shepley
Clark, the said Harry H. Fleming and said numerous other
persons as aforesaid, and that the said documents were to be
drawn up and prepared immediately, and that the said
distribution of the said money would be made as aforesaid
immediately, and that if he, the said Harry H. Fleming would
thereupon advance to her, the said Laura Pearson Shepley
Clark, the sum of Fifty Dollars ($50.00) lawful money of the
United States of America, or give her his personal check for
the same, for the purpose of defraying the
expenses of drawing up and preparingthe documents aforesaid,
that the said Harry H. Fleming would then and there be
reimbursed the said advance of Fifty Dollars ($50.00)
together with a substantial sum of money many times the
amount of the said Fifty Dollars ($50.00) advanced, all out
of the said money then and there on deposit in the said Bank
as aforesaid; whereas in truth and in fact the said
representations, statements and pretenses so made as
aforesaid by the said Laura Pearson Shepley Clark to the said
Harry H. Fleming were then and there in all respects utterly
false, untrue, and fraudulent at the time of making thereof,
and the said Laura Pearson Shepley Clark then and there well
knew the said representations, statements, and pretenses so
made as aforesaid by the said Laura Pearson Shepley Clark to
the said Harry H. Fleming, were then and there in all
respects utterly false, untrue, and fraudulent at the time of
making thereof;
"And
the said Harry H. Fleming then and there believing the said
false and fraudulent representations, statements and
pretenses so made as fraudulent by the said Laura Pearson
Shepley Clark to be true, and the said Harry H. Fleming
relying upon the said false and fraudulent representations,
statements, and pretenses as aforesaid, and being deceived
thereby, was induced by reason of the said false and
fraudulent representations, statements, and pretenses, so
made as aforesaid, to deliver and did then and there deliver
to the said Laura Pearson Shepley Clark his personal check in
the sum of Fifty Dollars ($50.00) lawful money of the United
States of America, drawn on the Southern Arizona Bank & Trust
Company payable to the order of Mrs. L. P. S. Clark, and the
said Laura Pearson Shepley Clark did then and there obtain a
valuable thing, to-wit: one personal check in the sum of
Fifty Dollars ($50.00) aforesaid, from the said Harry H.
Fleming, which said Valuable thing, to-wit: one personal
check in the sum of Fifty Dollars ($50.00) aforesaid, was the
property of the said Harry H. Fleming, and the said Laura
Pearson Shepley Clark then and there with intent to cheat and
defraud the said Harry H. Fleming did then and there cheat
and defraud the said Harry H. Fleming and
negotiated forthwith the aforesaid personal check for the sum
of Fifty Dollars ($50.00) lawful money of the United States
of America, contrary to the form, force and effect of the
statute in such cases made and provided, and against the
peace and dignity of the state of Arizona."
It is
claimed first that the court erred in denying appellant's
motion to quash the information for the reason that it does
not state facts sufficient to constitute a public offense in
that it charges her with obtaining from her victim, Harry H.
Fleming, a valuable thing, to wit, his personal check on the
Southern Arizona Bank in the sum of $50, when the fact is
that a check in the hands of its maker has no value whatever.
That it became valuable the moment it went into her
possession does not, it is argued, mean that it was worth
anything to him before he parted with it and, this being
true, it cannot be said that in securing it she obtained
anything of value from him. In Patterson v.
State, 25 Ariz. 276, 281, 215 P. 1096, 1097, 35
A.L.R. 366, it was pointed out that there is a
"line
of false pretense cases which hold that an allegation in the
indictment or information that the defendant obtained money
is supported or sustained by proof that he obtained from the
party defrauded his check. State v.
Germain, 54 Or. 395, 103 P. 521; State v.
Foxton, 166 Iowa 181, 147 N.W. 347. Ann. Cas. 1916E,
727, 52 L.R.A. (N.S.) 919; State v.
Jackson, 87 S.C. 407, 69 S.E. 883. We think this is
a just and fair rule and agree entirely with it."
See,
also, State v. Gibson, 132 Iowa 53, 106
N.W. 270; People v. Hoffmann, 142 Mich.
531, 105 N.W. 838; Roll v. People, 78 Colo.
589, 243 P. 641. There can be no serious question of the
correctness of this view where the information alleges, as it
does here, that the check was of the value of $50, lawful
money of the United States, and that appellant
forthwith negotiated it for this sum. To hold otherwise would
be entirely too technical, since the ultimate facts to be
shown were that she obtained the check in the manner
described and that it was of the value of $50. In
Hunt v. State, 72 Ark. 241, 79 S.W. 769,
772, 105 Am. St. Rep. 34, 2 Ann. Cas. 33, 65 L.R.A. 71, the
court well stated:
"...
It would be carrying technicality to a most dangerous extreme
to hold that the proof of the mere instrumentalities of
obtaining the money constituted a variance with the charge of
obtaining the money itself, where the same evidence also
showed the fact of obtaining the money itself. A check is a
mere order for so much money to the credit of the drawer in
the bank or drawee, which it is bound to honor when made in
form and properly presented. The proof also showed the money
was paid to the defendant...."
The
next and principal assignment attacks the sufficiency of the
information upon the ground that though it calls the offense
appellant is accused of committing a "Confidence Game, a
felony," the facts set up therein describe, if any
offense at all, that of obtaining goods by ordinary false
representations in violation of section 4777, Revised Code of
1928, and not that defined in section 4790, commonly referred
to as a "confidence game." These two sections read
as follows:
"§
4777. Frauds by false pretenses and reports. Every
person who knowingly and designedly, by any false or
fraudulent representation or pretense, defrauds any other
person of money, labor or property, whether real or personal
or who causes or procures others to report falsely of his
wealth or mercantile character, and by thus imposing upon any
person obtains credit, and thereby fraudulently gets
possession of money or property, or...
