Hameyer v. State

• Decision Date: 07 November 1947
• Docket Number: 32256.
• Citation: 29 N.W.2d 458,148 Neb. 798
• Parties: HAMEYER v. STATE.
• Court: Nebraska Supreme Court

29 N.W.2d 458

148 Neb. 798

HAMEYER v. STATE.

No. 32256.

Supreme Court of Nebraska

November 7, 1947

Syllabus by the Court.

1. The pretense or pretenses relied on to constitute the crime of obtaining money by false pretenses must relate to a past event or an existing fact.

2. Any representation, assurance, or promise in relation to a future transaction, however false and fraudulent it may be may not be the basis of a prosecution for obtaining money by false pretenses.

3. Section 25-1267, R.S.1943, as follows: 'Either party or his attorney may demand of the adverse party an inspection and copy, or permission to take a copy, of a book, paper or document in his possession or under his control, containing evidence relating to the merits of the action or defense therein,' is a part of the Civil Code and has no application to proceedings in criminal cases.

4. The application of section 25-1267, R.S.1943, to criminal proceeding in Marshall v. State, 116 Neb. 45, 215 N.W. 564 was an improper application of this section.

5. By rule of procedure in criminal cases the court in the exercise of a sound discretion should, where the prosecution is based upon the correctness or incorrectness of certain records or documents, on application of the defendant, allow an inspection of such documents or records.

6. Errors assigned but not argued will be considered as waived.

7. The ruling on an objection, wherein the ruling resides in the sound discretion of the court, is not available as ground for reversal unless discretion was abused to the prejudice of the party interposing the objection.

8. Where guilt of a defendant depends upon the intent, purpose or design with which the act was done, or upon guilty knowledge thereof, collateral facts in which he bore a part occurring before and leading up to the transaction complained of may be examined for the purpose of establishing such guilty intent, design, purpose, or knowledge, even though such facts show the commission of another crime.

9. An objection to evidence made for the first time after it has been received and the witness from whom it was elicited excused comes too late and it may not be considered as ground for reversal.

10. Photographs which illustrate a fact in issue are admissible in evidence.

11. Enlargements of photographs which may make proportions plainer and serve to illustrate testimony of witnesses on facts in issue are admissible in evidence.

12. Where documentary evidence is offered or a question is asked an objection is properly overruled unless it is good as to the entire document or question.

13. Errors which do not prejudice the substantial rights of the defendant will be disregarded.

14. The possession of a canceled bank check by the drawer, who testifies that on the day of its date he made and delivered it to the drawee, is sufficient proof prima facie of the payment of the amount named in the check.

15. In a charge of obtaining money by false pretenses proof that the defendant received a check, draft, or a certificate of deposit which was paid is not a variance from the charge.

McKillip, Barth & Blevens, of Seward, and David Tant, of Oklahoma City, Okl., for plaintiff in error.

Walter R. Johnson, Atty. Gen., Leslie Boslaugh, Asst. Atty. Gen., and C. S. Beck, Deputy Atty. Gen., for defendant in error.

Heard before SIMMONS, C. J., PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and KROGER, District Judge.

YEAGER Justice.

This is a criminal action prosecuted on information in the district court for Seward County, Nebraska, by the county attorney of said county in the name of the State of Nebraska against A. W. Hameyer, real name unknown, defendant. In the action in the district court the State of Nebraska was denominated plaintiff and A. W. Hameyer defendant.

The information contained four counts each of which contained a separate charge that A. W. Hameyer was guilty of obtaining money by false pretenses from William Woebbecke. At the conclusion of the evidence the defendant moved separately on each count for a directed verdict in his favor. This motion was sustained as to counts I and II of the information. Thereupon the other two counts were submitted to a jury. A verdict was returned finding the defendant guilty on the two counts.

Following the rendition of verdict a motion for new trial was filed which was overruled and the defendant sentenced to serve a term of four years in the state penitentiary. The defendant has brought the record here for review by petition in error. In the proceeding here the defendant below is plaintiff in error and the State of Nebraska is defendant in error. However, for convenience he will be referred to as defendant and the defendant in error as the State.

The assignments of error in the brief upon which defendant relies for reversal are numerous but those which require consideration fall into seven general classifications and will be thus considered herein. These classifications do not follow the order of assignment in the brief and do not contain all of the assignments noted but they do embrace comprehensively the subjects that require consideration and determination. They are (1) that the information failed to state a cause of action; (2) that the court erred in denying a continuance; (3) that the court erred in refusing inspection of the lease on which the prosecution was based; (4) that the court erred in its rulings on the admissibility of evidence; (5) that the court erred in refusing to allow the defendant to withdraw his plea of guilty and file a motion to quash the information; (6) that the court erred in submitting the case to a jury on counts III and IV, the theory being that the evidence was insufficient to sustain a conviction; and (7) that the sentence is excessive.

The particular question raised by the objection that the information did not state a cause of action is that the representations pleaded have reference to events to happen in the future and not to past events or existing facts. The question was first raised by motion for leave to withdraw a plea of not guilty and to file a motion to quash the information.

The rule of law upon which defendant relies in this connection and which is controlling is the following:

'It is a well settled rule of the criminal law that the pretense or pretenses relied on to constitute the crime must relate to a past event or an existing fact; that any representation or assurance, or promise, in relation to a future transaction, however false and fraudulent it may be, is not within the meaning of the statute.' Cook v. State, 71 Neb. 243, 98 N.W. 810, 811. There is no contention in this case that this is not the controlling rule.

It therefore becomes necessary to examine the alleged representations and to ascertain whether or not they or one or more of them may be interpreted as referring to past events or existing facts. The allegations as to representation are three in number and are identical in the two counts which we are required to examine. They are in substance (1) that the defendant could procure for William Woebbecke an oil and gas lease upon a 320 acre tract of land situated in Caddo County, Oklahoma, for $1,600 which lease could be sold for $32,000 within three months, (2) that the defendant had a buyer who would purchase the lease for $32,000, and (3) that there were active and producing oil and gas wells immediately adjacent to and surrounding the land. There are other detailed representations but we have interpreted them to be incidents of or elaborations upon these three.

These alleged representations analyzed and interpreted in the light of what a person of average intelligence and lay understanding would construe them to mean, we conclude, amounted to representations of existing fact. We think that this should be the approach and that courts in such circumstances should not indulge in strained or technical refinements the effect of which might be to defeat the purposes of law and the ends of justice.

Interpreted in this light the obvious purport of the first representation was that defendant had a present and existing ability to procure a lease on lands referred to for $1,600. This is not a strained but is a reasonable interpretation. It is therefore in this sense a representation as to an existing fact and not to a future event.

The second representation interpreted in the same view amounted to a representation that the defendant had a commitment for the purchase of the lease for $32,000, which was, like the first, a representation as to an existing fact and not to a future event.

No discussion is required as to the third beyond the statement that without interpretation it is on its face the representation of an existing fact.

In the light of these observations it becomes clear that the court did not err in overruling the motion for leave to withdraw the plea of not guilty and in denying leave to file a motion to quash the information. Counts III and IV stated causes of action against the defendant. This conclusion disposes of the first and fifth classifications.

Before the commencement of the trial the defendant requested leave to inspect and to make a copy of the lease. Leave was denied. Also before the trial a motion for continuance was made. This was also denied. Of these rulings the defendant complains.

For statutory right to have the lease produced for inspection the defendant relies on section 25-1267, R.S.1943, the pertinent portion of which is the following: 'Either party or his attorney may demand of the adverse party an inspection and copy, or permission to take a copy, of a book, paper or document in his possession or under his control, containing evidence relating to the merits of the action or...