Lazar v. State

• Decision Date: 29 September 1954
• Docket Number: No. A-11973,A-11973
• Parties: Jack LAZAR, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1003

275 P.2d 1003

Jack LAZAR, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-11973.

Criminal Court of Appeals of Oklahoma.

Sept. 29, 1954.

As Amended on Denial of Rehearing Nov. 10, 1954.

Syllabus by the Court.

1. While it might be debatable whether the term 'confidence game' as it appears in Section 1541, Title 21 O.S.1951, is to well understood as to require no further legislative definition, any doubt must be resolved in favor of the constitutionality of the legislative act.

2. The confidence game statute, Section 1541, Title 21 O.S.1951, is not unconstitutional as insufficiently defining the offense of confidence game in violation of Art. II, § 20, Oklahoma Constitution, requiring that the accused be informed of the nature and cause of the accusation against him; nor is it violative of or in conflict with the provisions of either the Fifth or Sixth Amendments to the Constitution of the United States.

3. The gist of the offense of 'confidence game' is the gaining of confidence of a victim by some false representation, deception, or device, in absence of which no violation of the confidence game can be established.

4. A confidence game as defined in Section 1541, Title 21 O.S.1951, is, generally speaking, any swindling operation by means of which advantage is taken of the confidence reposed by the victim in the swindler.

5. In every 'confidence game' a false pretense is involved, but every 'false pretense' does not involve a confidence game, and crime of confidence game is not established by mere proof that property has been obtained by false pretense, the proof to support a conviction for a 'confidence game' must show that the victim parted with his property because of the confidence he reposed in the swindler, or in the trick, device or false representation used to effect the swindle.

6. Information examined. Held: that it is sufficiently worded that the accused might know with reasonably particularity from the allegations what facts the prosecution considered as sufficient to render him guilty of the offense charged, so as to enable him to make his defense thereto, and that the information charges essential facts so specifically that a judgment in the case would be a complete defense to any subsequent prosecution for the same cause. Tit. 22 O.S.1951 §§ 401, 402, 409(6); Const. Art. II, § 20.

7. Information and record examined. Held that the contention that from the record as a whole, the prosecution should have been based on Section 1701 (the larceny by fraud statute), instead of Section 1541 of Tit. 21 O.S.1951 (the false pretense and confidence game statute), is not tenable for the reason that the distinction between obtaining property by fraud and obtaining property by false pretense is that in larceny by fraud the intention of the owner is not to part with title to his property when relinquishing possession, and here the record discloses transfer of title by bill of sale, which expressed the intent to transfer title.

8. The function of the Criminal Court of Appeals is limited to ascertaining whether there is basis, in the evidence, on which the jury can reasonably conclude that the accused is guilty as charged.

9. Evidence examined. Held, that there is no basis in the evidence to show that the prosecuting witness Bradley was an accomplice of the defendant so as to require that the testimony of Bradley be corroborated.

10. Against the contention that the trial court should have given a specific instruction in addition to quoting the statute declaring the crime charged, defining 'confidence game', it is held that the term 'confidence game' is sufficiently well understood that in the absence of a request that the term be specifically defined, the failure of the court to define the term other than in the words of the statute, did not constitute error.

J. B. Dudley, Dudley, Duvall & Dudley, Oklahoma City, Clyde F. Ross, Okemah, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

POWELL, Presiding Judge.

The plaintiff in error, Jack Lazar, hereinafter referred to as defendant, was charged by information filed in the district court of Okfuskee County with the crime of 'obtaining property by trick or deception, by false or fraudulent representations and statements, and by the use of false and bogus instruments in violation of Section 1541 of Title 21 of Oklahoma Statutes of 1951'; was tried before a jury, convicted, and the jury assessed the penalty at imprisonment in the State Penitentiary for a term of four years, and the payment of a fine of $500. Appeal has been duly perfected to this court.

The issues raised by the assignments of error may perhaps be more readily understood by first quoting at length the information and statute involved. The pertinent portion of the information reads '* * * that Jack Lazar did, in the county of Okfuskee, and in the State of Oklahoma, on or about the 8th day of August, 1951, and anterior to the presentment hereof, commit the crime of obtaining property by truck or deception, by false or fraudulent representations and statements and by the use of false and bogus instruments in violation of Section 1541 of Title 21 of Oklahoma Statutes of 1951, in the manner and form as follows, to-wit: That one Jack Lazar, then and there unlawfully, knowingly, and feloniously with a premeditated intent and design on his part to cheat and defraud the said J. L. Bradley, obtained from the said J. L. Bradley on said date a stock of goods located at 216 West Broadway in the town of Okemah, Okfuskee County, Oklahoma, in the building known as Bradley's State, said stock of goods was of the reasonably cash value of $10,500.00, good and lawful money of the United States of America, by means and use of a certain trick and deception and felonious and fraudulent representations and statements and pretenses and instruments and devices by what is commonly called the 'confidence game', as defined by section 1541 of Title 21 Oklahoma Statutes, 1951. The said defendant knowing at the time that his representations were false, untrue and fraudulent and made for the purpose and with the intent on his part to cheat and defraud the said J. L. Bradley of his said stock of goods on the said 8th day of August, 1951, made, executed and delivered to the said J. L. Bradley a note and chattel mortgage securing the same, a copy of said mortgage being attached hereto and marked 'Exhibit A' and made a part hereof. That said mortgage was void and was known to be void by the defendant at the time he executed the same as to the stock of merchandise, and was a fraudulent, fictitious instrument, and the defendant by use of such false and fraudulent representations to the said J. L. Bradley as a part of his confidence game or plan to obtain said property, he, the said Jack Lazar, represented to the said J. L. Bradley that he was the president and owner of Wilmore's Department Store in Oklahoma City, Oklahoma; that he had a Dun-Bradstreet credit rating of $200,000.00; that he had three buying offices in the city of New York; that he owned a blouse factory, and that said written mortgage was valid mortgage which would cover said stock of goods all of said representations and statements were then and there known by the defendant to be false and fraudulent and were made for the purpose of obtaining the confidence of J. L. Bradley and inducing him to have confidence in the said Jack Lazar, and for the purpose of obtaining said stock of goods, the property of the said J. L. Bradley, by the defendant Jack Lazar, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State.'

The pertinent portion of Tit. 21 O.S.1951 § 1541 reads:

'Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any person, firm or corporation, any money, property, or valuable thing, of the value of Twenty ($20.00) Dollars, or less, by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument or device commonly called the 'confidence game', or by means or use of any false or bogus checks, or by any other written or printed or engraved instrument or spurious coin, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed One Hundred ($100.00) Dollars, or by imprisonment in the county jail for not more than thirty (30) days, or by both such fine and imprisonment. If the value of the money, property or valuable thing referred to in the preceding paragraph, be more than Twenty ($20.00) Dollars, any person convicted hereunder shall be deemed guilty of a felony and shall be punished by imprisonment in the State Penitentiary, for a term not exceeding seven (7) years, or by a fine not to exceed Five Hundred ($500.00) Dollars, or by both such fine and imprisonment.'

The statute then defines 'false or bogus check' and the word 'credit', but the language 'or by any other means or instrument or device commonly called the 'confidence game" is not further defined.

Counsel urges that the statute is indefinite, uncertain and confusing, and violates Art. II, § 20 of the Constitution of the State of Oklahoma, and the Fifth and Sixth Amendments to the Constitution of the United States, and is void.

This specification of error was properly raised in the trial court by demurrer to the information, and also in the motion for new trial.

In support of this proposition, it is stated that '(A) Said section fails to set up ascertainable standards so that men of common intelligence are not required to guess at its meaning either as to persons within the scope of the act, or as to the applicable test to ascertain guilt. (B) Said section is so vague, indefinite, uncertain and confusing that men of common intelligence must guess as to what conduct on...