Fisher v. State

• Decision Date: 24 December 1923
• Docket Number: 72
• Citation: Fisher v. State, 256 S.W. 858, 161 Ark. 586 (Ark. 1923)
• Parties: FISHER v. STATE
• Court: Arkansas Supreme Court

256 S.W. 858

161 Ark. 586

FISHER v. STATE

No. 72

Supreme Court of Arkansas

December 24, 1923

Appeal from White Circuit Court; E. D. Robertson, Judge; affirmed.

STATEMENT OF FACTS.

A. B Fisher has been convicted before a jury in the circuit court upon an indictment charging him with the crime of false pretenses.The body of the indictment is as follows:

"The grand jury of White County, in the name and by the authority of the State of Arkansas, accuses A. B. Fisher of the crime of false pretenses, committed as follows, to-wit: The said A B. Fisher, in the county and State aforesaid, on the 12th day of April, A.D. 1923, then and there unlawfully, knowingly designedly and feloniously did falsely pretend to W. J Shiver that he, the said A. B. Fisher, was then and there the authorized agent and employee of the Columbia Hardwood Lumber Company, of Chicago, Illinois, to purchase, receive and pay for lumber for the said Columbia Hardwood Lumber Company aforesaid, and he, the said A. B. Fisher, then and there proposed to and did purchase and receive from the said W. J Shiver seven carloads of lumber of the value of twenty-three hundred dollars, and by reason of the false pretense aforesaid he, the said A. B. Fisher, then and there unlawfully, knowingly, designedly and feloniously did obtain from the said W. J. Shiver seven carloads of lumber, of the value of twenty-three hundred dollars, the property of the said W. J. Shiver, with the unlawful and felonious intent then and there to cheat and defraud the said W. J. Shiver out of his said property; whereas, in truth and in fact, the said A. B. Fisher was not then and there the authorized agent and employee of the said Columbia Hardwood Lumber Company, of Chicago, Illinois, to purchase, receive and pay for lumber as aforesaid, and he, the said A. B. Fisher, so well knew at the time he made the false pretense aforesaid, against the peace and dignity of the State of Arkansas."

W. J. Shiver was the principal witness for the State.According to his testimony, during the year 1923he had been engaged in manufacturing, buying and selling lumber at Searcy, in White County, Arkansas.He first met the defendant at his place of business in Searcy on April 12, 1923.The defendant made some prices on lumber.He asked the defendant what company he was representing, and the defendant said the Columbia Hardwood Lumber Company of Chicago, and that the company had a branch office in Little Rock, Ark.The defendant represented that he was taking care of the branch office.At first he sold the defendant something like four cars of oak lumber and several cars of gum.The defendant referred him to the Blue-Book for the company's standing.He told the defendant that he knew of his company, and that he supposed it was the same company that operated some mills below Varner, and he said that it was.He came back on the 14th, and he told him that he had looked up his company and found it to be all right.The order signed on April 12, 1923, Columbia Hardwood Lumber Company, by B. H. Moffitt, trust officer, by Fisher, is one of the orders that he gave him.

He delivered seven cars within the space of six days, and never received any pay for them.The six cars were worth over $ 2,000.The lumber was duly inspected and received by an inspector named Sheehan.Fisher told Shiver that the cars would be paid for just as fast as they were received.Shiver has not received any pay for the lumber.

The testimony of W. J. Shiver was corroborated by that of his brother, T. Shiver.In addition, they both testified that, after they found out that the defendant was not representing the Columbia Hardwood Lumber Company of Chicago, as he had represented himself to do, they went to Little Rock and undertook to locate his place of business there, but were unable to do so.

The treasurer of the Columbia Hardwood Lumber Company of Chicago, Ill., was present at the trial, and also testified for the State.According to his testimony, there is only one Columbia Hardwood Lumber Company in Chicago, and that the defendant had never been in its employment.The witness was treasurer of the company, and said that at one time the company had furnished money to operate some mills in White County, Arkansas, but that they had quit operations here about a year and a half ago.The Columbia Hardwood Company is not listed in the Blue-Book.The Columbia Hardwood Company received mail at room 1310, Security Bank Building, Chicago, which was forwarded to Little Rock.

Another witness testified that the defendant had told him that the Columbia Hardwood Company was a company owned by the Sargent Lumber Company, which had been organized by himself and Mr. Sargent.He said that the Columbia Hardwood Company was the buying company for the Sargent Lumber Company, which was selling him the lumber.

Other evidence for the State showed that the Sargent Lumber Company, the Columbia Hardwood Company, and six other lumber companies had the same office in Little Rock, Ark.The defendant and Mr. Sargent are the only two men who were ever found who acknowledged to having anything to do with the office.

The defendant was the principal witness for himself.According to his testimony, in 1923he was engaged in selling lumber for the Sargent Lumber Company, and was employed by the Columbia Hardwood Company.He met B. H. Moffitt, who represented himself to be a trustee for the Columbia Hardwood Company, and made a contract with him at Forrest City, Ark., whereby he agreed to purchase lumber for the company for the sum of $ 175 per month.The contract provided that it should run a year from date, which was the 22d day of November, 1922.The defendant admitted meeting the prosecuting witness at his place of business in Searcy, Ark., in April, 1923.He told Shiver that he was representing the Columbia Hardwood Company of Little Rock, and that the company had an office in Chicago.He bought seven cars of lumber from Shiver for the Columbia Hardwood Company.None of the lumber was delivered to the defendant, and he did not buy it for his personal use.

On cross-examination the defendant stated that he did not tell Shiver that he was buying lumber for the Columbia Hardwood Lumber Company, and that he did not say anything to him about looking up the rating of that company.He did not know who stayed in the Chicago office of the Columbia Hardwood Company.No one ever told him.He simply told Shiver that his company was a trust association with an authorized capital of $ 500,000.

T. S. Sargent was also a witness for the defendant.He testified that he knew B. H. Moffitt, and that his company had been buying lumber from the Columbia Hardwood Company during the year 1923.

F. B. Welch, the cashier of a bank at Searcy, testified in rebuttal for the State.According to his testimony, the contract of employment signed "Columbia Hardwood Company, by B. H. Moffitt, trustee," and A. B. Fisher, and the declaration of trust with the Columbia Hardwood Company, bearing the signature of B. H. Moffitt, and the order for lumber to the Searcy Hardwood Lumber Company, bearing the signature of "Columbia Hardwood Company, by B. H. Moffitt, by Fisher," were written by the same person.

W. J. Shiver testified that he owned the mill which sold the lumber to the defendant.He also testified that the Blue-Book is a lumberman's book which gives the rating of large lumber companies.The Columbia Hardwood Lumber Company of Chicago, Ill., is a large lumber company and contains a good financial rating.

The jury returned a verdict of guilty, and fixed the punishment of the defendant at imprisonment at one year in the State Penitentiary.

From the judgment and sentence of conviction the defendant has duly prosecuted an appeal to this court.

Judgment affirmed.

Ben F.Reinberger and Brundidge & Neelly, for appellant.

J. S. Utley,Attorney General, John L. Carter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.

OPINION

HART, J., (after stating the facts).

The defendant was indicted under § 2449 of Crawford & Moses' Digest, which reads as follows: "Every person who, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain a signature of any person to any written instrument, or obtain from any person any money, personal property, right of action, or other valuable thing or effects whatever, upon conviction thereof shall be deemed guilty of larceny and punished accordingly."

The first assignment of error is that the indictment is fatally defective.We have copied the body of the indictment in our statement of facts, and it need not be repeated here.

Tested by our decisions construing the statute just quoted, we are of the opinion that the court properly overruled the demurrer to the indictment.It is well settled by our decisions that a false pretense is a false representation of an existing fact or past event, by one who knows that it is not true, and which is of such a nature as to induce the party to whom it is made to part with something of value; and it is only necessary that the false pretense be the inducing motive to the obtaining of the goods or money by the defendant.Parker v. State,98 Ark. 575, 137 S.W. 253, andLawson v. State,120 Ark. 337, 179 S.W. 818.

The indictment in question charges that a false pretense was in fact made.That it was made with the intention of defrauding the prosecuting witness, W. J. Shiver, and that the prosecuting witness was in fact...