King v. State
| Decision Date | 07 February 1921 |
| Docket Number | 21619 |
| Citation | 124 Miss. 477,86 So. 874 |
| Court | Mississippi Supreme Court |
| Parties | KING v. STATE |
FALSE PRETENSES. Elements of offense stated; evidence held insufficient to sustain conviction.
It is not sufficient, to sustain a conviction for obtaining money under false pretense, to prove merely that a representation was false in fact; but the proof must show that that statement was known to be false by the person making it, or he must state the fact in such way as to carry assurance to the party that he is dealing with that the representation is true of his knowledge, and the representation must have been the efficient cause of the money being paid to such party.
APPEAL from circuit court of Washington county, HON. S. F. DAVIS Judge.
Fred King was convicted of obtaining money under false pretenses and he appeals. Reversed and rendered.
Judgment reversed.
Franklin & McGehee, for appellant.
There is no testimony showing that the appellant intended by his statements to Anthony and to his stenographer, about the option, to cheat and defraud Charles Roberson (and these were the only statements that he is credited by anyone with having made in the matter), and there is nothing to show in his action and dealings with Roberson afterwards that he intended to cheat and defraud him. He was in Memphis at the time the trade was made, and when it failed to go through, he granted every request of Roberson and agreed to credit him with the money, at his own request, on another contract, and thus the matter stood at the time of the appellant's indictment, trial and conviction.
In the case of Pittman v. State, decided by this court, in 58 So. at page 532, it was held that: "In order to constitute an offense under the above section (after quoting the section under which the defendant in the case at bar is indicted) the false pretense relied upon for conviction must be accompanied by something more than a mere false statement of a fact whereby money or other valuable thing is obtained from another. Such false statement must also be accompanied by an intent to cheat and defraud the person from whom the money, etc., is obtained. If money is obtained by reason of any false pretense unaccompanied by an intent to cheat or defraud, no crime is committed, etc.
With all due deference to the court below, we maintain with implicit confidence that the record in the case at bar did not present an issue that was entitled to have gone to the jury, and we respectfully submit that the judgment herein should be reversed.
Walton Shields, for appellant.
A great deal of the testimony is incompetent and exceptions were taken thereto. Competent testimony offered by the defendant was excluded and the defendant's motion to exclude the testimony when the state rested should have been granted as it is entirely insufficient to convict the defendant of the charge against him. The peremptory instruction asked by the defendant at the conclusion of the evidence should have been given.
The court modified the instructions for the defendant by inserting the words "or to some other person" therein. Under this indictment the state was limited to proof that the intention was to defraud Charley Roberson and in order to make the court's modification correct, the indictment should have contained the words "or to some other persons unknown" after the words "Charley Roberson."
The state's instructions are also erroneous particularly in that portion in which the court tells the jury that if King's statements to Anthony were made with the intent to defraud generally, they should convict. The demurrer to the indictment should have been sustained for the reasons stated in the demurrer. See State v. Freeman, 103 Miss. 764, 60 So. 774.
We respectfully submit that the case should be reversed and the defendant discharged.
Wm. Hemingmay, assistant attorney-general, for the state.
The first ground of the demurrer is that the indictment fails to show why Charley Roberson paid the money to defendant and why such false pretenses should have moved him to make the payment to defendant. This appears to be more a matter of evidence than of an improper charge in the indictment. The indictment sufficiently alleges that on account of the claim of an option which was false Charley Roberson paid the money to defendant.
The third ground of the demurrer is that the indictment fails to allege with sufficient certainty and clearness that the alleged pretense was enough to induce Roberson to turn over the money to defendant. The indictment alleged that the money was obtained, "by means and color of which false pretenses," which is sufficient under State v. Dodenhoff, 88 Miss. 277, 40 So. 641. It is contended by the state that this case covers all the grounds of demurrer. The defendant in this case was by this indictment fully informed as to the precise crime with which he was charged, and the state claims that it was proper to overrule the demurrer.
Appellant cites State v. Freeman, 103 Miss. 464, 60 So. 774, to support the contention that the demurrer should have been sustained. That decision is correct on the facts of that case. In this case, however, the facts would not support the opinion in the Freeman case. In the Freeman case the facts fail to disclose the relation of the defendant to the firm of Caldwell & Smith, or why this man should have parted with his money to the pretended representative. In that case the indictment failed to charge that the offense was committed feloniously. There is no such error in this indictment. The indictment in the instant case states that on account of this pretended option and power to sell the said Charles Roberson the following described land, etc., and that he did obtain the money from him on account of that option, the option to sell which gave him the power to sell, and in that capacity he did obtain this money. The indictment might have been plainer but it is certainly clarified by the evidence. The case of Deenhoff, fully sustains this indictment.
The appellant was indicted for obtaining money under false pretenses; the indictment alleging that King, devising and intending to cheat and defraud Charles Roberson, did then and there designedly, falsely, fraudulently, and feloniously pretend to the said Charles Roberson that he, the said Fred King, did then and there have an option and power to sell to said Roberson certain lands, describing the lands, by means and color of which said false pretenses he, the said King, did then and there designedly, fraudulently, and feloniously obtain of and from him, the said Charles Roberson, money to the amount of five hundred dollars, whereas, in truth and fact, said Fred King did not then and there have an option and power to sell the said lands, all of which the said King then and there well knew, etc.
It appears from the evidence that King was engaged in the real estate business at Memphis, Tenn., and at Leland, Miss.; that he secured the services of a person in Washington county to procure lands for sale for him, and that the said person reported to King that he could sell the...
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