Deibert v. State

• Decision Date: 10 June 1926
• Docket Number: 13.
• Citation: 133 A. 847,150 Md. 687
• Parties: DEIBERT v. STATE.
• Court: Maryland Court of Appeals

133 A. 847

150 Md. 687

DEIBERT v. STATE.

No. 13.

Court of Appeals of Maryland

June 10, 1926

Appeal from Circuit Court, Harford County; Wm. H. Harlan, Judge.

"To be officially reported."

Arthur G. Deibert was convicted of obtaining money by false pretenses, and he appeals. Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, DIGGES, PARKE, and WALSH, JJ.

Omar D Crothers, of Elkton, and Millard E. Tydings, of Havre de Grace, for appellant.

Thomas H. Robinson, Atty. Gen., John Hubner Rice, Asst. Atty. Gen and W. Worthington Hopkins, State's Atty., of Bel Air for the State.

PARKE J.

The appellant, Arthur G. Deibert, was convicted of obtaining money by false pretense, and his appeal presents eleven exceptions on the evidence, and an exception to the refusal to quash the indictment. The traverser was indicted under section 139 of article 27 of Bagby's Code, which declares that--

"Any person who shall by any false pretense obtain from any other person any chattel, money or valuable security, with intent to defraud any person of the same, shall be guilty of a misdemeanor, * * * provided also, that a mere promise for future payment, though not intended to be performed, shall not be sufficient to authorize a conviction under this section."

There is no promise for future payment involved in the crime of which the accused was found guilty, and therefore proof of the crime charged involved the establishment that the thing was a chattel, money, or valuable security wherein the immediate and whole indefeasible interest and actual possession was obtained by a false pretense.

In the first place, the thing or subject-matter was money, which was within the letter and spirit of the statute. The money was obtained by the traverser from the First National Bank of Havre de Grace on September 2, 1924, upon a check for $3,560, dated August 30, 1924, and drawn by the Elkton Development Company to the order of the traverser. The Elkton Development Company was in course of liquidation, and the proceeds of sale of its principal assets were on deposit with the First National Bank of Havre de Grace. The directors and stockholders had followed the indicated statutory course to obtain a dissolution of the corporation, and, pending the accomplishment of this purpose, the corporation decided on August 29, 1924, to distribute at once the sum of $40 a share to the stockholders of record on that date. This division of the assets of the company was to be accomplished by checks drawn to the order of each of the stockholders.

Clarence Deibert held 87 shares of the stock of the company, and consequently he was entitled to receive under this preliminary division of the assets $3,480, and this sum was contained in the check mentioned of $3,560, which was $80 in excess of what was due him on account of his shares of stock. Clarence Deibert was the treasurer of the company and the traverser was its secretary. Instead of drawing, as directed by the resolution of the corporation, the check for $3,480 to himself, by virtue of his right as stockholder, Clarence Deibert, as treasurer, wrote the corporate check for $3,560 and made it payable to his brother, Arthur G. Deibert, without any consideration moving from the payee to the corporation, and then mailed the check to the traverser, who received it on August 30, 1924. This check did not operate as an assignment of any of the funds to the credit of the company as the check was not certified and when presented by the holder, on September 2d, the bank declined to pay it, until induced by the misrepresentations of the traverser. Code, art. 13, § 208; Moses v. Franklin Bank, 34 Md. 574, 581, 582; Exchange Bank v. Sutton, 78 Md. 577, 585, 28 A. 563, 23 L. R. A. 173; Hodge and McLane on Attachment, § 151, n. 3.

Clarence Deibert, however, was indebted to the First National Bank of Havre de Grace in the sum of $4,040, on a demand note for which certain stocks were pledged as collateral security, and the bank caused an attachment to be laid on August 30, 1924, in the hands of the First National Bank of Havre de Grace, attaching all the rights and credits of Clarence Deibert, and particularly the interest of Clarence Deibert in the bank deposit with the garnishee to the credit of the Elkton Development Company.

As every bank has a full and general authority to part with money on general deposit to the credit of its depositor, any money paid out by the bank becomes the property of the recipient, who thereby, in the contemplation of the criminal law, acquired possession of the money and its immediate and absolute ownership. ^[1] The fact that the bank is the plaintiff does not prevent it being also the garnishee; ^[2] and the inchoate lien acquired under an attachment on the money on deposit attached in the hands of the bank as garnishee from the time of the service of the attachment and the laying of it in its hands. ^[3] The deprivation of the garnishee's whole indefeasible interest in the subject-matter is sufficient for the offense of false pretenses, as full ownership is not essential and the right may be no greater than that of a bailee. ^[4]

In addition to the inchoate lien of the attachment, the bank held, as part of collateral security for its loan to Clarence Deibert, 30 shares of the stock of the Elkton Development Company. These shares had been assigned to the bank, but had not been transferred to the assignee on the books of the company at the time the distribution of $40 a share was made. It was under these circumstances that the traverser presented on September 2, 1924, to the bank for payment the check in question. The state offered evidence tending to establish that the bank refused to honor the check because of the attachment of all the interest of Clarence Deibert in the deposit in the bank to the credit of the Elkton Development Company, but was deceived by the traverser who, in order to defraud the bank, with the knowledge of the untruth and for the purpose of procuring from the bank in money the amount of the share of the assets of the company payable to Clarence Deibert and contained in the check then presented for payment, falsely stated to the bank as a fact that the check was not for any dividend or moneys due from the company to Clarence Deibert, but was solely for the indebtedness of the company to the traverser; and that thereupon the bank, believing the untruth, and being induced thereby, gave the full amount of the check to the traverser.

The accused offered evidence tending to refute the testimony against him, but the statement of the case has been made from the viewpoint of the state as the errors assigned arise in connection with the proof produced against the traverser, and their consideration required a presentation of the state's case.

The first and second exceptions were to the identification of the parties to the attachment proceedings and the admission of the record in evidence. There can be no question of the materiality and relevancy of this proof, which tended to establish the status of the parties and of the property attached at the time of the commission of the crime charged. And the third exception was to the introduction of the corporate records of the Elkton Development Company to show that its property had been sold, its affairs in the course of liquidation,...