Gillespie v. State

• Citation: 194 Ind. 154,142 N.E. 220
• Decision Date: 18 January 1924
• Docket Number: No. 24301.,24301.
• Parties: GILLESPIE v. STATE.
• Court: Indiana Supreme Court

194 Ind. 154

142 N.E. 220

GILLESPIE

v.STATE.

No. 24301.

Supreme Court of Indiana.

Jan. 18, 1924.

Appeal from Circuit Court, Rush County; E. Ralph Himelick, Special Judge.

James Gillespie was convicted of obtaining the signature of a person to a written instrument by false pretense with intent to defraud, and he appeals. Affirmed.Shake & Kimmell, of Vincennes, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward Franklin White, Deputy Atty. Gen., for the State.

GAUSE, J.

This is an appeal from a judgment convicting the appellant under an indictment seeking to charge a violation of section 2588, Burns' 1914, which is the statute defining the crime of obtaining the signature of any person to a written instrument, or obtaining money or other property, by false pretense, with intent to defraud.

The appellant filed a motion to quash the indictment, which motion was overruled and an exception reserved. The appellant assigns this ruling as one of the errors relied upon, and in his brief points out three objections which he has to the indictment, so these are the only questions we will consider in reference thereto.

[1] The appellant first says that the indictment is defective for failing to allege who was the owner of the money charged to have been obtained by the false pretenses. We think this objection is urged because of a misconception of the charge. As we view the indictment, it charges the obtaining of the signature of the prosecuting witness to a written instrument, namely, a bank check, by false pretenses.

[2] True, the indictment does allege that appellant afterwards obtained money on this written instrument, the purpose of which averment evidently was to show that the instrument was one that could result and did result in a damage to the person signing the same; but this averment was unnecessary, and the offense was complete when appellant obtained the signature of the prosecuting witness to the check, if it was obtained by false pretenses, with intent to defraud, as alleged, and if it was such an instrument as could be used to work an injury to the signer.

The indictment, after charging the pretenses and the falsity thereof, and the intent to defraud, charges that the prosecuting witness relied upon such false pretenses and, being deceived thereby and by reason of such reliance and belief, did then and there “buy the aforesaid three sets of tablecloths, toweling of and from the said James Gillespie, and did then and there execute a certain check made payable to the said James Gillespie in the amount of fifty-five and fifty hundredths dollars in payment for the aforesaid three sets of tablecloths, toweling; that a true and correct copy of the aforesaid check is as follows, to wit.” And then follows a copy of the check, being a bank check in the usual form, signed by the prosecuting witness and payable to the appellant.

[3] The allegation that the prosecuting witness executed said check implies that he signed and delivered it and is a charge that he did everything necessarily included in an execution thereof. State v. Butler (1891) 47 Minn. 483, 50 N. W. 532.

[4] The offense being complete when the prosecuting witness executed the check, and it being such an instrument as was capable of working an injury to the person whose signature was obtained, then actual loss or prejudice to such person need not be shown. People v. Galloway (1837) 17 Wend. (N. Y.) 542; People v. Sully (1860) 5 Park. Crim. (N. Y.) 142, 170; People v. Genung (1833) 11 Wend. (N. Y.) 19, 25 Am. Dec. 594; State v. Butler, supra; State v. Jamison (1888) 74 Iowa, 613, 38 N. W. 509. It was therefore not necessary to allege whose money the appellant obtained when he cashed the check, and the indictment is not defective for not alleging such fact.

[5] It is also contended by the appellant that the indictment is defective because it fails to allege that the appellant knew that the pretenses were false when he made them. It is alleged that the appellant “did then and there unlawfully, feloniously, knowingly and falsely pretend, *** with intent then and there, by such false pretenses, to cheat and defraud,” etc. This is clearly sufficient to charge knowledge. State v. Snyder (1879) 66 Ind. 203; 2 Bouvier's Law Dictionary (3d Revision) p. 1809, the word “Knowingly.”

[6] It is next contended by appellant that the indictment is defective because it alleges that appellant represented the material which he sold to the prosecuting witness to be “pure and genuine linen, when in truth and fact the said goods as aforesaid was not pure and genuine linen, but was a material containing a large quantity of cotton,” etc., the appellant claiming that the fact it contained cotton was not inconsistent with its being pure and genuine linen. We think otherwise. The common and accepted meaning of the word “linen,” when used alone, is that it is a material woven from the fibers of flax. Standard Dictionary. This would be the only meaning accorded it when referred to as pure and genuine linen. When qualified by being described as table linen, bed linen, etc., it might be understood as having a different meaning, because of such terms being used to denote materials not composed of pure linen.

If only the word “linen” was used to describe the material, there would be more of a question presented; although, even then, we think it would mean the product of flax only. If it is described as pure and genuine linen, the person using such a description would necessarily be understood as excluding the idea that it was a substitute or impure article, composed in part of cotton.

We do not think the indictment is defective for any of the reasons urged against it.

The appellant has assigned as error the overruling of his motion for a new trial.

[7] One of the grounds of...