Clawson v. State

• Decision Date: 07 November 1906
• Parties: CLAWSON v. STATE.
• Court: Wisconsin Supreme Court

129 Wis. 650

109 N.W. 578

CLAWSON

v.STATE.

Supreme Court of Wisconsin.

Nov. 7, 1906.

Error to Municipal Court, Brown County; Nicholas J. Monahan, Judge.

W. H. Clawson was convicted of obtaining propery by means of false pretenses, and he brings error. Reversed and remanded.

Information charging the defendant with obtaining a promissory note by the false representation that he had sold for $7,500 for the prosecuting witness a boat owned by the latter to one H. H. Hayward, a man who resided at Elks Rapids, Mich., and was worth $100,000, the information charging that the statement that he had so sold the boat, and that H. H. Hayward lived at Elks Rapids, Mich., was false, as defendant well knew. Evidence was given that the prosecuting witness, Hagerty, being half owner of a certain boat, agreed with defendant in writing to give him a commission of $500 if he “makes the sale, or is instrumental in making sale, of the steamer Belle at $7,500.” On the following day, June 19th, Clawson produced a telegram dated Chicago and signed H. H. Hayward, directing him to close deal at $7,500, provided clear title was made in Hayward's name by Wednesday and placed in Kellogg National Bank. On the following day he asked for his commission, and Hagerty inquired as to who Hayward was, and, as he testified, was informed that he was a man living at Elks Rapids, Mich., and was worth about $100,000. Whereupon, relying upon this statement, Hagerty gave to the defendant his promissory note payable to the latter or order, in 30 days, for $500, and wrote on the foot of it below his signature, the following: “Due July 20th. This note is given in accordance with agreement with Mr. Clawson.” Evidence was offered that no such man lived at Elks Rapids, Mich. There was evidence tending to prove that Hagerty was in some trouble with his partner as to accounts of the vessel and their respective interests, and was not able to produce a good bill of sale Wednesday, the 22d of June, as specified in that telegram. There was evidence of his attempting to buy out his partner at a less price and of his having commenced foreclosure and asking Clawson to attempt to get postponement for a few days, and the latter produced in response thereto a telegram dated Chicago, June 23d, signed Hayward, as follows: “Perfect title in my name and place same in charge of Kellogg Bank. You inspect same, advise me by Friday. Will not entertain further delay.” On Friday Hagerty was still in controversy with his partner and did not produce at the bank the bill of sale, although he testifies that if the money had been there he could have obtained it. Defendant testified, with confirmation by another witness, that at that time he had received and had in his possession a certified check for $7,500 from Hayward, payable to Kellogg National Bank, which, under his directions from Hayward, he could only deliver when satisfactory conveyance was placed with that bank, and, no such conveyance being so deposited, he returned the check to Hayward on the following day. Hagerty, on July 8th, received a letter signed H. H. Hayward, care of Courtland Hotel, Chicago, offering to complete the purchase on the terms named if title were made by August 1st. To this Hagerty replied, but the substance of his reply is not in evidence. Neither party has since been able to find Hayward, the Courtland Hotel, where he made his headquarters in Chicago, having burned shortly after this time. The fact of the existence and apparent responsibility of H. H. Hayward was testified to by two Chicago witnesses, and the presence of such a man in company with the accused on the 17th of June inspecting the boat in question was also proved. After motion to direct a verdict in favor of the defendant, a verdict of guilty was found by the jury, and, after motion for a new trial, judgment and sentence were pronounced, to which defendant sued out writ of error.M. E. Davis, for plaintiff in error.

L. M. Sturdevant, Atty. Gen., and A. C. Titus, Asst. Atty. Gen., for the State.

DODGE, J. (after stating the facts).

At the very threshold of this case we are confronted by a very important and doubtful question of law, affecting the general scope of this part of the criminal law of this state, on which we have received no aid from counsel on either side, and upon which the field of at least suggestive decisions is quite extended, and has involved us in much labor and research. That question is whether our statute (section 4423, Rev. St. 1898) makes criminal the obtaining by false pretenses a promissory note or other evidence of indebtedness. Our statute, adopted originally from Massachusetts, makes criminal only the obtaining of “money, goods, wares, merchandise or other property.” The Massachusetts statute was substantially an adoption of the English acts of 30 Geo. II, c. 24, and 52 Geo. III, c. 64. Since the respective adoptions the statutes have been modified both in England and Massachusetts by an addition to the list of property which might be the subject of the crime, of apt words to describe evidences of indebtedness, and in the overwhelming majority of other states the statutes defining the crime of false pretenses either nominate expressly “evidence of indebtedness” or do not, like ours, contain such a category of tangible material property as to suggest, by “noscitur a sociis,” a limitation of the final general words to similarity to such a preceding category. We have been unable to find either in England or in Massachusetts a decision whether evidences of debt might be the subject of obtaining goods under false pretenses during the period that their statutes failed to cover them specifically. Our own statute was first considered in State v. Green, 7 Wis. 677, wherein the charge was of obtaining a check, which, however, seems to have been cashed, so that the accused did in fact obtain the money, although that fact seems not to have been charged in the indictment. No question was raised or considered by the court as to the sufficiency of this allegation to satisfy the clause of the statute, the indictment being held bad on other grounds. The next case was State v. Kube, 20 Wis. 217, 91 Am. Dec. 390, which was a charge of obtaining “a package of money containing the sum of $60 in bank bills.” The court held, not that bank bills were included in the expression “other property,” but were described by the word “money”; for the reason that such word, in reasonable and colloquial use, signified whatever customarily passed current as a medium of exchange and commerce and was not necessarily confined to coined metals. The next case of significance is State v. Black, 75 Wis. 493, 44 N. W. 635, where the ultimate decision was that the obtaining of board and lodging, or, as the court characterized it, a mere credit, was not penal under this section, But it was there said: “We are to remember that it is a criminal statute we are construing. It should not be so construed as to multiply crimes, unless required by the context. The word ‘property’ is, in many cases, construed to include ‘things in action and evidences of debt.’ Subds. 3, 4, § 4972, Rev. St. 1898. But the words ‘other property,’ in the statute quoted, must, under the familiar rule, ‘noscitur a sociis,’ be limited to such tangible classes of property as are therein previously enumerated; that is to say, ‘money, goods, wares, merchandise, and other property’ of that description.” In Bates v. State, 124 Wis. 612, 103 N. W. 251, the holding was that a charge of obtaining money was not satisfied by proof of obtaining drafts by one bank on another, although in course of discussion it was said that for the obtaining of such drafts the defendant could be prosecuted. That was said upon the authority of Commonwealth v. Coe, 115 Mass. 481, overlooking the distinction between the present statutes of that state...