Fuller v. State, 39175

• Decision Date: 17 May 1954
• Docket Number: No. 39175,39175
• Citation: 72 So.2d 454,221 Miss. 247
• Parties: FULLER v. STATE.
• Court: Mississippi Supreme Court

Page 454

72 So.2d 454

221 Miss. 247

FULLER v. STATE.

No. 39175.

Supreme Court of Mississippi.

May 17, 1954.

W. C. Sweat, Jr., Corinth, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

HOLMES, Justice.

The appellant, Paul Fuller, was jointly indicted with Howard Hughes in the Circuit Court of Alcorn County on a charge of obtaining by false pretenses three gallons of white paint, two gallons of shellac, two quarts of solox and a paint brush, of the total value of $30.10, from the Corinth Planing Mill Company. The indictment charged that they obtained the property by falsely representing that they were employees of Bobby Liddon, and that the said Bobby Liddon had authorized them to purchase the paint supplies and charge the same to his account. The defendants were tried together and convicted, and each was sentenced to one year in the State penitentiary. The appellant Fuller appeals from the judgment of conviction.

The State's proof, which the jury accepted, showed the following: About five o'clock on the afternoon of July 8, 1953, the defendants came to the place of business of the Corinth Planing Mill Company and told one of the salesmen for the company that they were doing some painting for Bobby Liddon and wanted to buy some paint and wanted it charged to the said Liddon. They were not painting for Liddon and were not authorized by him to buy the paint and charge it to his account. After some conversation between the defendants as to the quantity of paint wanted and as to the question of obtaining a discount on the purchase, the salesman, on the faith of the representation made, sold them the paint and brush and charged the same to Liddon, and made out a sales slip showing the paint and brush to be charged to Liddon, and Hughes signed the sales slip. The defendants then left with the paint supplies and got in a waiting taxi and drove immediately to the place of business of W. O. Hathcock, Jr., from whom they borrowed $11 and left the paint supplies as security for the loan.

The appellant contends (1) that the trial court erred in overruling his motion for a directed verdict, and (2) that there was a variance between the indictment and proof which entitled the defendants to an acquittal, and (3) that even if the proof be sufficient to sustain the conviction of Hughes, the evidence is insufficient to show participation by the appellant in the commission of the offense.

The proof, in our opinion, is amply sufficient to sustain the conviction of both defendants. A false pretense may be made either expressly or by implication. In 35 C.J.S., False Pretenses, Sec. 12, p. 650, we find the following: '* * * a false assertion that one has the ability to secure a position for another is a false pretense, as is a false assertion that one is the servant, representative, or agent of another, implying as it does that he has power to act for another.' Again in 35 C.J.S., False Pretenses, Sec. 17, p. 654, we find the following: 'A false pretense may consist in any act, word, symbol, or token calculated and intended to deceive. It may be made either expressly or by implication.'

When the defendants represented that they were working for Liddon and that they wanted the paint charged to Liddon, they, by implication, represented that as the employees of Liddon they were getting the paint for Liddon's job and were authorized to have the paint charged to Liddon. They did not in so many words say that they were so authorized, but the implication of such authority clearly arises from the acts and conduct of the defendants. In the case of Hinman v. State, 179 Miss. 503, 176 So. 264, the defendant was convicted of obtaining money under false pretenses. He had operated a business known as the Carthage Creamery Company at Carthage, Mississippi. The business was unsuccessful and had terminated. He thereafter received a check drawn by the David Spruks Company of Scranton, Pennsylvania, on the Third National Bank of that city, payable to the Carthage Creamery Company. He endorsed this check, 'Carthage Creamery Company, Carthage, Mississippi,' and mailed it to a bank in Kosciusko with which he had not theretofore done business and directed that it be deposited to his account. He later withdrew by check the entire amount of the funds from the bank. It developed that the check was intended for the Carthage Creamery Company,...