Johnston v. State

• Decision Date: 15 May 1952
• Docket Number: No. 28823,28823
• Citation: 230 Ind. 571,105 N.E.2d 820
• Parties: JOHNSTON v. STATE.
• Court: Indiana Supreme Court

Page 820

105 N.E.2d 820

230 Ind. 571

JOHNSTON v. STATE.

No. 28823.

Supreme Court of Indiana.

May 15, 1952.

Flanagan & Miller, Fort Wayne, for appellant.

J. Emmett McManamon, Atty. Gen., William T. McClain, Depty. Attys. Gen., John Ready O'Connor, for appellee.

BOBBITT, Judge.

Appellant was prosecuted by affidavit in two counts charging him with the sale of securities, with knowledge that the issuer was insolvent, under § 25-849, subsection (e), Burns' 1948 Replacement, Acts of 1937, ch. 120, § 21(e), p. 656, and by falsely representing the financial condition of the issuer with intent to cheat and defraud the affiant under the false pretense statute, § 10-2103, Burns' 1942 Replacement, Acts of 1907, ch. 228, § 1, p. 431. Trial was had by jury which returned a verdict finding appellant guilty on both counts. Judgment was thereupon rendered on the verdict and appellant was fined in the sum of ten dollars ($10) on count one, and sentenced to the Indiana State Prison for a period of one year on each count, the sentences to run concurrently.

Only two questions are presented by appellant on appeal. The only one of these that need be considered is: Did the trial court err in giving state's tendered instruction numbered 15? Said instruction is as follows:

'The Court instructs you that the terms 'Fraud,' and 'Fraudulent,' shall include any misrepresentation in any manner of a relevant fact, such misrepresentations being intentional, or due to gross negligence.'

Section 25-849(e), supra, upon which count one of the affidavit is based, provides as follows:

'Whoever sells or causes to be sold, or offers for sale or causes to be offered for sale in this state, any security required to be registered under this act, with knowledge that the issuer of such security is insolvent, shall be deemed guilty of a violation of this act, and upon conviction thereof may be imprisoned in the state prison for * * *.'

The applicable part of § 10-2103, supra, upon which count two is based, provides as follows:

'Whoever, with intent to defraud another, designedly, by color of any * * * false pretense, * * * obtains from any person, * * * any money, * * * draft or check, * * * knowing the signature of the maker, * * * thereof to have been obtained by any false pretense, shall, on conviction, * * *.'

Appellant contends that the giving of said instruction numbered 15 is reversible error because it was improper and prejudicial to appellant for the reason that it defined the terms 'fraud' and 'fraudulent' as they are used in § 25-831(j), Burns' 1948 Replacement, and does not apply to the subsection upon which count one of the affidavit is based, nor to the false pretense statute.

Appellee contends that the error in giving said instruction numbered 15, if any, is cured by the rule that all instructions given in a case must be considered as a whole, and not separately or in detached fragments, and that if the instructions when so considered present the law upon the question with reasonable clarity, the particular instruction which might be erroneous will afford no ground for reversal. It further contends that by the giving of instructions numbered 12 and 13 which were tendered by appellant (defendant), the jury was correctly instructed as to the question of knowledge and intent. Said instructions numbered 12 and 13 are as follows:

'Instruction No. 12.

'The Court instructs the jury that intent is one of the essential elements of the crime charged in the affidavit. In addition to proving each and all of the material allegations of the affidavit beyond a reasonable doubt the burden is upon the State to prove that the acts committed, if you find beyond a reasonable doubt that any acts were committed, were done with felonious intent.

'Instruction No. 13.

'Count one of the affidavit charges among other things that the defendant had knowledge that the Local Grocery Corporation was insolvent at the time of the transaction alleged to have taken place.

'The Court instructs the jury that this is a vital allegation and the defendant cannot be found guilty unless it, along with all the other material allegations of the indictment are proved by the State beyond a reasonable doubt.

'The Court further instructs the jury that the charge of knowledge means actual knowledge, not what the defendant might have known or could have learned. Therefore even though you should find that the Local Grocery Corporation at the time involved was in fact insolvent, you must acquit the defendant unless you also find beyond a reasonable doubt that the defendant had actual knowledge of such insolvency.'

We have examined each of the six...