Fox v. State

• Court: Supreme Court of Arkansas
• Citation: 145 S.W. 228
• Parties: FOX v. STATE.
• Decision Date: 26 February 1912

145 S.W. 228 FOX
v.
STATE. Supreme Court of Arkansas. February 26, 1912.

Appeal from Circuit Court, Polk County; Jeff T. Cowling, Judge.

J. M. Fox was convicted of crime, and he appeals. Reversed and dismissed.

Wright Prickett and Elmer J. Lundy, for appellant. Hal L. Norwood, Atty. Gen., and Wm. H. Rector, Asst. Atty. Gen., for the State.

KIRBY, J.

Appellant was convicted in the Polk circuit court upon an indictment charging him with obtaining the signature of one T. M. Dover by certain false pretenses.

The sufficiency of the indictment was challenged by general demurrer, in which it was also alleged that it was bad for duplicity. The indictment is long and involved, and is by no means a model of good pleading; but it alleges in apt terms that defendant, "unlawfully, falsely, fraudulently, feloniously, and designedly, with the intention then and there to cheat and defraud, did falsely

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represent and pretend to him, the said T. M. Dover, that one H. G. Gray was justly indebted to the said J. M. Fox, etc., and the said J. M. Fox did then and there falsely, fraudulently, feloniously, and designedly with intention then and there to cheat and defraud * * * represent and pretend to him, the said T. M. Dover, that the said mortgage and note aforesaid represented and was security for a good and valid and bona fide indebtedness, * * * and by means of which said false and fraudulent representations and pretenses as aforesaid the said J. M. Fox then and there induced the said T. M. Dover to become surety for the said J. M. Fox for the sum of $100, * * * and the said T. M. Dover, then and there relying upon the representations and pretenses as aforesaid, did then and there become surety for the said J. M. Fox, on a certain promissory note for the sum of $100. * * * The said representations and pretenses as aforesaid were false and were known to be false by the said J. M. Fox at the time they were made, and by means of which said false and fraudulent representations and pretenses as aforesaid, he, the said J. M. Fox, did then and there unlawfully, falsely, fraudulently, feloniously, and designedly with intention then and there to cheat and to defraud * * * did obtain from him, the said T. M. Dover, his signature and indorsement as surety, etc. * * * " We think it is sufficiently alleged that the pretenses made were false and known to be so by appellant, and were made with the fraudulent intent to deceive the injured party, Dover, and secure his signature and indorsement to the note, upon which the money was procured from the bank and which said Dover afterwards had to pay, and that he was induced thereby to make such signature and indorsement.

It is true that there are many other allegations in the indictment relative to procuring the money from Dover and the Bank of Hatfield; but we do not think the indictment is open to the charge of duplicity, and any other allegations not necessary to the charge of obtaining the signature of Dover by the false pretenses alleged were properly treated as surplusage by the lower court in overruling the demurrer.

The evidence tends to show that one Bud Gray, desiring to secure the payment of his indebtedness to T. M. Dover, and to secure a certain and further sum of money from him, executed to him the following note: "$300.00. Hatfield, Ark., June 15, 1910. 90 days after date, I promise to pay to J. M. Fox, or order, at Hatfield, Arkansas, three hundred ($300.00) dollars, for value received, negotiable and payable without defalcation or discount, with interest from date at the rate of 10 per cent. per annum. This being the mortgage note from H. G. Gray to J. M. Fox, conveying the following described property, to wit: One bay horse mule 10 years old, 15 hands high, named Pete. One bay mare mule 9 years old, 15 hands high, named Kit. One new 3-inch Springfield wagon. On which property a vendor's lien is retained to secure payment of this note. [Signed] H. G. Gray. Due 15th, September. No. ______ P. O. Hatfield." Indorsed on back: "June 18-10. I hereby authorize T. M. Dover as my agent to foreclose the accompanying mortgage to this note at maturity. [Signed] J. M. Fox" — securing same by a mortgage upon certain property described in the note, which was duly executed by said Gray upon the same date that the said Dover went first to the Bank of Hatfield and presented the mortgage and note and asked if he could procure a loan upon it, telling the cashier at the time about the value of the property. The cashier suggested that he go and see Dover and get his indorsement on the note and he would lend him the hundred dollars he desired. He then went to Dover to procure his signature to the note, and the transaction was stated by Dover as follows: "I am acquainted with H. G. Gray, commonly called Bud Gray, and J. M. Fox. About June 15, 1910, I lived in Hatfield and was engaged in the mercantile business. In June I signed a note as security with J. M. Fox, as principal, to the Bank of Hatfield, for $100, as follows: `$100.00. Hatfield, Ark., 6/18, 1910. Ninety days after date, for value received, I, we or either of us, promise to pay to the order of the Bank of Hatfield, Hatfield, Ark., one hundred dollars, negotiable and payable, without defalcation at the Bank of Hatfield, Hatfield, Arkansas, with interest at the rate of ten per cent. per annum from maturity until paid. The drawers and indorsers severally waive presentment for payment, protest and notice of protest and nonpayment of this note. J. M. Fox. T. M. Dover. Due 9/18/10 No. 12. Post Office Hatfield.' Indorsed on back: `10/17/10. Paid by T. M. Dover, $100.85 E. R. Bryant, Cashier.' He came to my place on the 18th of June with the note and mortgage, just he and I together, and he showed me the note and mortgage, and said he wanted to turn them over to me to secure me to go on his note at the Bank of Hatfield for $100. I asked him if Bud Gray owed him $300, and he...