Lanier v. State, 932

• Decision Date: 16 December 1968
• Docket Number: No. 932,932
• Citation: 448 P.2d 587
• Parties: Phillip Ray LANIER, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 587

448 P.2d 587

Phillip Ray LANIER, Appellant, v. STATE of Alaska, Appellee.

No. 932.

Supreme Court of Alaska.

Dec. 16, 1968.

Joe P. Josephson, of Pollock, Josephson & McNealy, Anchorage, for appellant.

Harold W. Tobey, Asst. Dist. Atty., and Douglas B. Baily, Dist. Atty., Anchorage, for appellee.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

OPINION

RABINOWITZ, Justice.

A superior court jury found appellant guilty on 60 separate counts of false pretenses on soliciting for organizations. ¹

A brief re sume of the relevant factual background discloses the following: In 1956 or 1957, the Spenard Boy's Club of Anchorage, Alaska, was organized for the purpose of conducting athletic activities for boys. Appellant, Phillip Ray Lanier, was a member of the American Legion Post 28, Anchorage, which organization sponsored the Spenard Boy's Club. William Davenport, manager of the Spenard Boy's Club, sought to raise the sum of $500 to construct a hockey rink for the Boy's Club. Davenport was introduced to appellant by David Grove, the Commander of American Legion Post 28. This meeting was arranged in light of appellant's previous experience as a professional fund raiser.

As a result of this meeting, appellant, under the name of Talent Attractions, and Davenport, on behalf of the Boy's Club, entered into a 'Performance Agreement.' As part of this August 9, 1963, agreement, appellant agreed 'to produce a fund raising drive in Anchorage, Alaska during the months of _ _ to be mutually agreed upon' in order to assist the Spenard Boy's Club in its 'drive for the purpose of earning money with which to carry on certain benevolent assistance * * *.' Under the terms of this agreement, appellant guaranteed

to earn the sum of $600.00 * * * as a result of this enterprise. Party of the second part (appellant) shall receive the balance of the gross receipts remaining after all bills have been paid.

The Spenard Boy's Club, on its part, covenanted to

permit the use of its name in order to stimulate the solication of funds, thereby insuring the financial success of said drive.

In conjunction with the execution of this document, Davenport opened a checking account at the First National Bank of Anchorage for the Spenard Boy's Club, and appellant was given the authority to write checks on the account. Appellant then proceeded to solicit funds and some four months later, in December 1963 or January 1964, appellant informed Davenport that money was available. At this time Davenport told appellant the club did not need the money due to the fact of an early freeze which prevented granding of the hockey rink site. Approximately one year later, in January of 1965, appellant left a $500 check for Davenport with an employee at the Anchorage International Airport Maintenance Shop where Davenport was then employed. In October of 1965, Davenport learned that funds were still being solicited for the Spenard Boy's Club of Anchorage. The 60 counts of false pretenses on soliciting for organizations followed this revelation.

At trial, evidence was presented concerning the manner in which funds were raised. Joseph Testa testified that he was employed by appellant in September or October of 1965 for two weeks to contact, by telephone, prospective donors to the Spenard Boy's Club. Appellant furnished Testa with cards and directed him to call the people indicated on the cards and solicit contributions for the Boy's Club. During the course of his 2 weeks' employment, Testa observed appellant typing envelopes and receipts. Dolores Holtan testified she was employed by appellant to collect funds for the Spenard Boy's Club in September or October of 1965. As part of her employment routine, appellant would furnish her with envelopes containing completed receipts which she would then deliver to donors upon obtaining contributions. At trial the state's attorney and appellant's counsel entered into a stipulation which applied to 52 of the 60 separate counts. This stipulation established that solicitations were made, cash or checks were then picked up, and a receipt left with the person or business making the donation. The receipts were typed on a typewriter owned and possessed by appellant. ²

The jury, in answer to a special interrogatory, found the Performance Agreement, which was entered into on August 9, 1963, between appellant and Davenport on behalf on the Spenard Boy's Club, had terminated on the 31st day of January 1964, and by their verdict found appellant guilty of all 60 counts.

At the threshold, we must answer several questions concerning the meaning of Alaska's law which makes it a misdemeanor to employ false pretenses in soliciting for a beneficial or charitable organization. The statute we are primarily concerned with is AS 11.20.450 which reads in part:

A person who, by oral or written words, or by acts or conduct, falsely represents or pretends to be a member or authorized agent or representative of a * * * beneficial, or charitable society, or association, or other organization of any kind, and, while engaged in making a false representation or pretense, or by means of a false representation or pretense, obtains from a person, money or written promise to pay money or other property is guilty of a misdemeanor * * *.

Relevant to appellant's initial argument concerning the proper interpretation of AS 11.20.450 are the provisions of AS 11.20.460 which provide that:

It is a false representation, or pretense, within the meaning of * * * (AS 11.20.450) of this chapter, for a person to represent falsely or pretend to be a member, agent, or representative of a * * * beneficial or chartable society, or association, or organization which has no bona fide existence. Wearing the distinctive garb or emblem of a * * * beneficial, or charitable society, or association, or organization is a representation or pretense, by the person wearing it that he is a representative of the * * * beneficial, or charitable society, or association, or organization.

Appellant contends that AS 11.20.460 furnishes the exclusive catalog as to those acts which are encompassed within the amibit of AS 11.20.450. More particularly, appellant argues that AS 11.20.450 can be violated in only two ways. The first type of activity which is proscribed is falsely representing or pretending to be a member of a charitable or beneficial organization that has no bana fide existence. Since the evidence adduced at trial disclosed the Spenard Boy's Club did have a bona fide existence at the time in question, appellant argues that the government's proof failed to show any violation of AS 11.20.450.

Secondly, appellant takes the position that AS 11.20.450 can be violated by the wearing of a distinctive garb or emblem of a beneficial, or charitable society and while so garbed, obtaining money or a written promise to pay money. Consistent with this argument, appellant further posits that since the record is bare of any evidence tending to show that appellant was attired in any such distinctive garb, no violation of AS 11.20.450 occurred.

We cannot agree with appellant's analysis of the effect of AS 11.20.460 upon AS 11.20.450. In our view, adoption of appellant's position would lead to an unintended and unreasonably narrow construction of AS 11.20.450. Historically, AS 11.20.450 and AS 11.20.460 were originally enacted as one statute. ³ We think it clear that in enacting AS 11.20.460 the legislature intended to identify and prohibit two activities which otherwise might not have been construed to come within the proscription of AS 11.20.450. We therefore hold that the fact the Spenard Boy's Club was an existing charitable organization, and at the time the false pretenses were purportedly made by appellant for solicitations in behalf of this organization appellant did not wear any distinctive garb or emblem of the club, did not remove appellant's conduct beyond the reach of AS 11.20.450.

We must decide whether AS 12.45.030 applies to prosecutions based upon asserted violations of AS 11.20.450. AS 12.45.030 treats the subject of evidence necessary in false pretense prosecutions and provides as follows:

Upon a trial for having by a false pretense obtained the signature of a person to a written instrument, or obtained from any person any valuable thing, no evidence can be admitted of a false pretense expressed orally and unaccompanied by a false token or writing. The pretense or some note or memorandum of it shall be in writing and either subscribed by or in the handwriting of the defendant. This section does not apply to an action for falsely representing or personating another, and in that assumed character receiving any valuable thing.

Grounding its position on the language contained in the last sentence of this statute, the state contends that non-humans (i. e., corporate entities) are encompassed within the scope of 'another' as used in AS 12.45.030. We reject the state's contention here because not to do so would lead to the total emasculation of the protection intended by this statute. We hold that 'another,' as used in the last sentence of AS 12.45.030, is limited to human beings and, therefore, the statute's evidentiary requirements are applicable to the case at bar. We must, therefore, next determine whether the government's proof satisfied AS 12.45.030's evidentiary criteria.

In State v. Germain, ⁴ the Supreme Court of Oregon, in referring to the statute from which Alaska's AS 12.45.030 was adopted, said in part:

In England, and in many of the states, neither the false pretense nor the evidence of it is required to be in writing; in fact, statutes requiring either of these requisites are the exception, rather than the rule. However, in this state, as a precaution against perjury, the Legislature has required the evidence of such false pretense to be accompanied by a writing or some false token. * * *

We think that the law excluding oral evidence of a false...