Coblentz v. State

• Decision Date: 31 May 1911
• Docket Number: 12837
• Citation: 95 N.E. 768,84 Ohio St. 235
• Parties: Coblentz v. State Of Ohio.
• Court: Ohio Supreme Court

95 N.E. 768

84 Ohio St. 235

Coblentz v. State Of Ohio.

No. 12837

Supreme Court of Ohio

May 31, 1911

Indictment under Section 7076, Revised Statutes - For procuring signature to bond or note - Must allege intent to defraud - And aver material facts - Evidence of transactions previous to trial admissible, when - Transactions subsequent to trial not admissible, when.

1. An indictment under Section 7076, Revised Statutes, for procuring a signature to a bond, note, or other evidence of indebtedness, must allege that the signature was secured not only by false pretense but with intent to defraud, and must aver all of the material facts necessary to be proven in order to convict, with such reasonable certainty as to advise the defendant what he may expect to meet at the trial.

2. On the trial under such an indictment evidence of previous transactions which necessarily involve guilty knowledge by the defendant with reference to the transaction in question is admissible, but as to transactions occurring subsequent to that on which the indictment is based evidence is not admissible.

At the October term, 1909, of the court of common pleas of Miami county, an indictment was returned against William S Coblentz, in which he was charged with the offense of unlawfully, and by false pretenses, procuring the signature of one Ira M. Albaugh, as maker, to a promissory note of the value of five thousand dollars. On the trial of the case in common pleas at the close of the testimony offered by the state, the defendant moved the court to direct a verdict in his favor on the ground that no case had been made out by the state, and that the indictment did not charge a crime under the law. The court overruled this motion. The defendant was convicted and sentenced and this judgment was affirmed by the circuit court. Error is prosecuted here to reverse the judgments below. Other alleged errors are noticed in the opinion.

Mr Robert R. Nevin; Mr. W. A. Haines and Mr. A. C. McDonald, for plaintiff in error.

A case almost directly similar to the one at bar with respect to the proper averment of the intent to defraud is that of Kennedy v. State, 34 Ohio St. 310.

The procurement of Albaugh's signature to this note was only an incident of the alleged transaction, there being no allegation in the indictment anywhere that the signature was procured with intent to defraud.

Other cases, which are applicable as showing how the court differentiates between the two classes of offenses provided for under the first and second clauses of this section, are Baker v. State, 31 Ohio St. 314, and Tarbox v. State, 38 Ohio St. 581.

This absence of the allegation that the signature was procured with intent to defraud is not in any way cured by Section 2223, Revised Statutes (Section 13590, General Code), as was thought by the circuit court in passing on this case. We cannot see that this section has any application to the facts of the case at bar. Drake v. State, 19 Ohio St. 211.

The court erred in admitting testimony of certain alleged similar transactions.

A case that is squarely on all fours with the case at bar, as to our second proposition, above stated, is that of State v Letourneau, 24 R. I., 3.

Evidence was admitted that within a week after a prisoner had made certain false representations, he made false representations of a similar nature to another, and on these second false representations he secured from this other party money. Reg v. Holt, 8 Cox Crim. Law Cases, 411; 3 Rice on Crim Evidence, 207, 215; Shulman et al. v. State, 14 Hun., 516, 76 N.Y. 624.

So in the case at bar, we claim that there are many things which might have permitted the defendant to have made certain statements to Dr. Pearson and others in June, which would throw no light upon his guilty knowledge or intent during the month of March previous to the time when this indictment alleges these false representations were made.

To the same effect also is Morgan v. State, 56 Neb. 696, where the court holds that the admission of such testimony was not competent at all.

This testimony, it seems to us, was highly prejudicial to the defendant, as the court holds in the case of Ferrer v. State, 2 Ohio St. 75. Jackson v. People, 126 Ill. 149.

Mr. J. Guy O'Donnell, prosecuting attorney, and Messrs. E. H. & R. A. Kerr, for defendant in error.

The sixth error relates to the admission of similar representations on the part of the plaintiff in error to other parties relative to the same class of transactions at or near the date of the representations set out in the indictment.

Whenever scienter or guilty knowledge must be proved to sustain the charge the class of evidence complained of is competent.

It is held by text-writers to be an exception to the general rule, but competent whenever scienter or guilty knowledge must be proved. Gillett's Indirect & Collateral Evidence, 76; People v. Sharp, 107 N.Y. 427, 14 N.E. 319, 1 Am.St. 851, which on examination we find to be a leading case on this subject; 1 Wharton's Crim. Law, Secs. 631a, 633, 634, 649.

The above principle is well settled in Ohio.

The trial court in the trial of the case and also in overruling the motion for a new trial relied on Tarbox v. State, 38 Ohio St. 581, which thoroughly supports the decision of the court. This was not a new proposition at that time. It had previously been recognized in the following cases: Hess v. State, 5 Ohio 5; Jackson v. State, 38 Ohio St. 585; Reed v. State, 15 Ohio 217; Edwards v. Owen, 15 Ohio 500; Shriedley v. State, 23 Ohio St. 130; Brown v. State, 26 Ohio St. 176; Bainbridge v. State, 30 Ohio St. 264; Lindsey v. State, 38 Ohio St. 507.

Since the trial of this case, this exact proposition has been before and decided by this court and is reported in Boyd v. State, 81 Ohio St. 239, and is beyond question decisive of this objection in the petition in error.

We further desire to call the court's attention to the fact that in Jackson v. State, 38 Ohio St. 585; Brown v. State, 26 Ohio St. 176, and Bainbridge v. State, 30 Ohio St. 264, the state was in each instance permitted to prove subsequent acts to show intent.

JOHNSON J.

The indictment is founded on Section 7076, Revised Statutes which relates to obtaining money, etc., by false pretenses. There are defined in the section three different offenses. First obtaining by any false pretense with intent to defraud, anything of value from another; second, procuring by any false pretense, with intent to defraud, the signature of any person as maker, endorser, etc., of any bond, note, or other evidence of indebtedness, and third, selling, or offering to sell, any such instrument, knowing the signature to have been obtained by false pretenses. The indictment in this case, it is conceded, was intended to describe an offense included in the second class. It alleges that said Coblentz, on the 7th of March, 1907, in said county of Miami and state of Ohio, then and there being, unlawfully did falselv pretend, with intent to defraud to one Ira M. Al- baugh, that the Gem City Acetylene Generator Company, a corporation located with its principal place of business at Dayton, Ohio, was solvent and entirely out of debt and did not owe any man a dollar. And proceeding, alleges that he pretended that the company was doing an excellent business and making sufficient money to pay the expenses of the company and declare dividends of 20 per cent. on the capital stock; that it had paid 20 per cent. dividends and then had on hands a sufficient surplus of net earnings to pay a 20 per cent. dividend, but that the money was needed in the business, and that he, Ira M. Albaugh, would receive his equal proportion thereof the same as if he had been a stockholder at the time the dividend was earned, and further, that he represented that he was selling stock of the company for the purpose of procuring funds to increase the output and then sets out the names of some of those to whom he pretended to have sold stock. And further, that every dollar that was paid on stock so sold by him had been, and would be, expended by the company in the increase of its business whereby the earnings could be greatly increased from those aforesaid, by which said false pretenses the said William S. Coblentz then and there did unlawfully procure the signature of the said Ira M. Albaugh, as maker, to a promissory note of the value of five thousand dollars, and then sets out a copy of the note. The indictment then proceeds to allege that in truth and fact said company was not solvent, and was not out of debt, but on the contrary its indebtedness was much in excess of its assets and a statement from the books of the com- pany is set out in the indictment in support of this allegation. The indictment then proceeds to set out facts showing that the company was largely indebted to other parties, naming them, and that this indebtedness in the aggregate exceeded the available assets of the company, and alleges that it was not then doing an excellent business, or even a good business and had never made any money, and was then actually losing money, and that all of these facts were well known to William S. Coblentz at the time he made the statements heretofore referred to. The indictment contains a further allegation that the five thousand dollars paid by the said Ira M. Albaugh was not expended by the company in the increase of the company's business, but alleges that it was paid part to Coblentz, and part on then existing indebtedness of the company, and concludes with the allegation that said William S. Coblentz at the time he so falsely pretended, as aforesaid, well knew the said false pretenses to be false, he being the general manager of...