Dwoskin v. State, 33815

• Decision Date: 10 February 1956
• Docket Number: No. 33815,33815
• Parties: Hiram DWOSKIN, alias Hiram Dee, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.
• Court: Nebraska Supreme Court

Page 847

74 N.W.2d 847

161 Neb. 793

Hiram DWOSKIN, alias Hiram Dee, Plaintiff in Error, v. STATE of Nebraska, Defendant in Error.

No. 33815.

Supreme Court of Nebraska.

Feb. 10, 1956.

Syllabus by the Court

1. In a prosecution for obtaining money by false pretenses the gist of the offense consists in obtaining the money of another by false pretenses, with the intent to cheat and defraud.

2. When the necessary elements of the crime are sustained by evidence, the question of the intent with which the transaction was carried on is usually one for the jury to determine after a consideration of all the facts and circumstances. The fact that additional representations may have been made relating to future transactions is material only as a circumstance to be considered by the jury in determining the question of intent.

3. Where the essential elements of the crime of obtaining money by false pretenses are present, it is no defense that the defendant had an option to buy the property on which he made default.

4. Where instructions, considered as a whole, state the law fully and correctly, error will not be predicated therein merely because a separate instruction, considered by itself, might be subject to criticism.

Schrempp & Lathrop, Omaha, for plaintiff in error.

Clarence S. Beck, Atty. Gen., Homer G. Hamilton, Asst. Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

The plaintiff in error, hereinafter called the defendant, was convicted of obtaining money by false pretenses and was sentenced to serve 4 years in the State Penitentiary. He brings the record of his conviction to this court for review.

The amended information, in substance, charged that Hiram Dwoskin, alias Hiram Dee, did falsely pretend to William L. Sudyka and Louella L. Sudyka that the Allied Finance System, a corporation, was the owner of or had the power to execute a conveyance of Lot 6, Block 4, Phillips' Addition to the city of Omaha, Douglas County, Nebraska, also described as 2419 South Tenth Street, Omaha, Nebraska; that by such false pretenses the defendant did induce William L. Sudyka and Louella L. Sudyka to enter into a contract with the Allied Finance System and defendant for the purchase of said property and to pay to Allied Finance System and defendant the sum of $3,000 in money as a down payment on the purchase price of said property; that neither the Allied Finance System nor the defendant were the owners of said property; that neither the Allied Finance System nor defendant had any authority to contract for the sale of such property or the power to execute a conveyance of such property; that relying upon such false pretenses, William L. Sudyka and Louella L. Sudyka did pay and deliver $3,000 in money to the Allied Finance System and defendant; that the Allied Finance System and defendant received the $3,000 in money; and that such pretenses were false and made with the intent to defraud William L. Sudyka and Louella L. Sudyka.

The charge was brought under section 28-1207, R.R.S.1943. So far as material here, the statute provides: 'Whoever (1) by false pretense or pretenses, or by a promissory representation as to some future action to be taken by the person making the representation where made with the present intent that such future action would not be performed or carried out, shall obtain from any other person, * * * any money, * * * with intent to cheat or defraud such person, * * *.' The statute then provides for punishment of the offense.

The gist of the offense is described in Brennan v. State, 141 Neb. 205, 3 N.W.2d 217, 219, as follows: "In a prosecution for obtaining money under false pretenses, the gist of the offense consists in obtaining the money of another by false pretenses with the intent to cheat and defraud.' Ketchell v. State, 36 Neb. 324, 54 N.W. 564; reaffirmed in Thompson v. State, 112 Neb. 389, 199 N.W. 806.'

The defendant elected to try his own case. He was assisted, in part, by an attorney from the public defender's office.

At the close of the State's evidence, the defendant moved for a directed verdict of acquittal and predicates error on the part of the trial court in overruling this motion. This raises the question of the sufficiency of the evidence to submit the case to the jury, which may be summarized as follows.

By stipulation of the parties, the Allied Finance System and the Equity Holding Company are Nebraska corporations. The evidence clearly indicates that the defendant was the sole and complete owner of these corporations, and there is no evidence to the contrary. We make this observation at this time for the reason that both the Allied Finance System and the Equity Holding Company will be mentioned subsequently in the opinion.

The record discloses that Leo J. Kemler and Lillian Kemler, his wife, acquired title to Lot 6, Block 4, Phillips' Addition to Omaha, Douglas County, Nebraska, by warranty deed from Jens Dahl Jensen and Marie Jensen, husband and wife, executed on March 5, 1951. The property is also known as 2419 South Tenth Street. Kemler testified that in March 1951, he entered into a contract for the construction of a house on the property, with the defendant, the Built-Rite Company, and paid the defendant $4,400, making the last payment around July 1951. In addition, he executed a mortgage to the Allied Finance System, a Nebraska corporation, on March 5, 1951, in the amount of $9,000. He dealt only with the defendant when he dealt with the Allied Finance System. A dispute arose between Kemler and the defendant apparently with reference to liens that might be placed against the property. As a result of this dispute, a contract was entered into between Kemler and his wife and the Allied Finance System on August 4, 1952. By the terms of the contract Kemler and his wife were to sell to the Allied Finance System the property in question for $5,500, the purchaser agreeing to buy the property subject to all encumbrances of record or any encumbrances that might be placed thereafter on the property, and to close the purchase on or before 90 days after the date of the agreement.

Kemler further testified that he never had any conversation, correspondence, or communication of any kind with the defendant or the Allied Finance System after August 4, 1952, or before December 6, 1952, with reference to William L. Sudyka and Louella L. Sudyka; that he never sold the property; and that he did not own it at the time of the trial.

On cross-examination Kemler testified that he was represented by an attorney, and that after August 4, 1952, his attorney had correspondence with the defendant with reference to the property in question. Kemler's attorney wrote a letter dated December 19, 1952, to the defendant in care of the Built-Rite Company, informing the defendant that the attorney had a deed to the property heretofore described, made by Leo J. Kemler and Lillian Kemler, husband and wife, conveying the property to the Allied Finance System, and would deliver the deed to the defendant upon the payment of $5,500, on condition that the amounts named in the letter were paid within a reasonable time, not to exceed 30 days from the date of the letter.

On January 30, 1953, Kemler's attorney wrote to the defendant referring to the attorney's letter of December 19, 1952, and stating that the purpose of the letter was to amend the letter of December 19, 1952, and informing the defendant that the deeds mentioned in that letter and the amounts specified were to be paid by February 15, 1953.

On re-direct examination Kemler testified that on or after February 15, 1953, he never executed any document with reference to the sale of this property to the defendant or the Allied Finance System, nor had any conversation with the defendant; that the option, as evidenced by the letters, was never exercised by the defendant; that he never received from the defendant or the Allied Finance System, or anybody else at any time after December 6, 1952, any money from the sale of this property; that after the property was sold, his attorney received in Kemler's behalf a note from the defendant for $5,000; that Kemler received a total of $447.40 from the defendant; and that no further money was paid on this note.

William L. Sudyka testified that he contacted the defendant by a telephone call and made an appointment with him to look over the property in question as it had a 'for sale' sign on it, by Built-Rite. The defendant did not keep the appointment, and 2 weeks later, on December 6, 1952, this witness called the defendant again and made an appointment to go to defendant's place on North Thirtieth Street. He met the defendant and asked him what he wanted for the property, and the defendant told him that he would have to have some money for a down payment. The witness said that he had $3,000. They then proceeded to the house and looked it over. The interior was not finished. The defendant said he wanted $14,900 for the house. After looking over the house this witness, his wife, and the defendant went to the defendant's place of business. The defendant then told this witness: 'That is a nice place, * * * I will sell it to you, * * * I will fix it and I will have the floors in and the walls painted.' He referred to the property as his house. He also said he would have it fixed up by January 1, 1953. Negotiations were carried on and a contract was entered into which was a purchase agreement whereby Sudyka and his wife agreed to purchase the property here involved from the Allied Finance System, the same to be completed in accordance with specifications which were designated on the reverse side of the contract, subject, however, and on condition that the owner thereof had a good and valid title, in fee simple, and would furnish abstract of title down to the date of the sale, and convey said premises by warranty...