Martins v. State

• Citation: 98 P. 709,17 Wyo. 319
• Parties: MARTINS v. STATE
• Decision Date: 22 December 1908
• Court: United States State Supreme Court of Wyoming

98 P. 709

17 Wyo. 319

MARTINS v. STATE

Supreme Court of Wyoming

December 22, 1908

ERROR to the District Court, Carbon County; HON. DAVID H. CRAIG Judge.

Romon Martins was charged upon information, tried and convicted of the crime of obtaining money by false pretenses, and prosecuted error. The information and material facts are set out in the opinion.

Reversed.

Chris. Mathison, and L. E. Armstrong, for plaintiff in error.

A check indorsed in blank by the payee is payable to the bearer. (Laws 1905, Sec. 9, p. 41.) The check in question was therefore, negotiable by delivery, and Mayer or Freedman, his principal, became the owner and holder thereof, and having obtained a good title to the check was not defrauded. (Laws 1905, Sec. 30, p. 44.) To constitute the crime of obtaining property by false pretenses it is necessary that an actual fraud be accomplished. (1 McClain Cr. Law, Sec. 665; 19 Cyc 393, 411; Morris v. People, 4 Colo.App. 136; Berry v. State, 97 Ga. 202; McGhee v State, 97 Ga. 199; In re. Cameron, 44 Kan. 64; State v. Asher, 50 Ark. 427; Morgan v. State, 42 Ark. 131; State v. Matthews, 44 Kan. 596; People v. Wakely, 62 Mich. 297; Johnson v. State, 75 Ind. 553; People v. Jordan, 66 Cal. 10; State v. Phifer, 65 N.C. 321; Mathena v. State, 15 Tex.App. 473; State v. Palmer, 50 Kan. 318; State v. Clark, 46 Kan. 65; Watson v. People, (N. Y.) 41 Am. Rep. 397; 2 Bish. Cr. Proc., Sec. 163.) It is true that the prosecutor is entitled to that which he expected, and that it is sufficient to constitute the offense if he does not receive it, even though he does receive something else of equal value. (Rucker v. State, 114 Ga. 13; Culver v. State, 86 Ga. 197; State v. Mills, 17 Me. 211; Bartlett v. State, 28 O. St. 669.)

There was no proof of representation as to ownership of the check. While it is true that representation may be shown by conduct as well as words, the act of the defendant in passing the check amounted only to a representation that it was true and genuine, which in fact it was. And since he did not transfer to the prosecutor a false token it was necessary to show by his statements that he represented himself to be the owner of the check. (19 Cyc. 402; 1 McClain Cr. L., Secs. 661, 666, 675; 1 Wigmore's Ev., Sec. 320; State v. Southall, (Minn.) 79 N.W. 1007; People v. Luttermoser, (Mich.) 81 N.W. 565; State v. Walton, 114 N.C. 783; People v. Gates, 13 Wend. 311; Wagoner v. State, 90 Ind. 504; Com. v. Hulbert, 12 Metc. 446; State v. Adams, 92 Ind. 116; State v. Layman, 8 Blackf. 330; People v. Donaldson, (Cal.) 11 P. 681.) The rule in all cases of the sale of property seems to be that there must be false statements. (State v. Dorr, 33 Me. 498; Com. v. Lee, 149 Mass. 179; Moore v. People, 190 Ill. 331; Thomas v. People, 113 Ill. 531; State v. Moore, 111 N.C. 667; State v. Jackson, (Kan.) 22 P. 619; Jenkins v. State, 97 Ala. 66; State v. Byam, 23 Or. 568.) A variance between the description of the pretense in an indictment and the proof is fatal. (19 Cyc. 438-439.) The presentation of the check was no more than a representation that the defendant had a right to present it and to demand payment thereof. (Foote v. People, 17 Hun, 218; 1 Daniel's Neg. Inst., Sec. 573.) Mayer's only concern was whether he was acquiring the check in due course of business. (1 Daniel's Neg. Inst., Sec. 780; Laws 1905, p. 46. Sec. 52.) Defendant's possession of the check created the presumption that he was the owner. (4 Wigmore's Ev., Sec. 2515; Bank v. Emmitt, (Kan.) 35 P. 213; Saunders v. Bates, (Neb.) 74 N.W. 578; New England &c. Co. v. Robinson, (Neb.) 76 N.W. 415; Battersbee v. Calkins, (Mich.) 87 N.W. 760.)

The warranty of ownership implied by law in the indorsement of the check is not sufficient as a representation. (1 McClain Cr. L., Sec. 676; State v. Dorr, 33 Me. 498; Watson v. People, 87 N.Y. 561; State v. Butlen, 47 Minn. 483; State v. McDonald, (Kan.) 52 P. 453; Jackson v. People, 18 Ill.App. 508.) A false statement to constitute a false pretense must have reference to past or existing facts. (1 McClain Cr. L., Sec. 678.)

It must appear both by allegations and proof that the false pretense was relied upon by the person parting with his property as an inducement thereto, though it is not necessary that the false pretense be the only inducement. (Haines v. Ter'y, 3 Wyo. 167; 1 McClain Cr. L., Secs. 684, 686; 19 Cyc. 445; Gilett Cr. L., Sec. 293.) It was not sufficient to show that the defendant made false pretenses to Mayer and that Cordove or Romero had lost the money. A specific intention to defraud is essential to the crime. (19 Cyc. 413.) No false pretenses were made to Romero, nor did he part with or lose any property in the transaction. The postoffice was the agent of Cordove, not of Romero. (Clark's Cr. Proc., Sec. 613-615; People v. Rathbun, 21 Wend. 509; State v. Hudson, 13 Mont. 112; Strang v. State, 32 Tex. Cr. 219.) There is a fatal variance between the allegations and proof in respect to ownership; it is necessary that the proof correspond with the allegations. (Jones v. State, 22 Fla. 532; State v. Miller, 153 Ind. 229; State v. Blizzard, 70 Md. 385; Mays v. State, 28 Tex.App. 484; Headley v. State, 106 Ala. 109; State v. Myers, 82 Mo. 558; Matthews v. State, 33 Tex. 102.)

Under our statute the intention required to constitute the crime must be an intention to cheat and defraud the person from whom the property is obtained. Decisions from other states not requiring an intention to defraud a specific person are not, therefore, persuasive. The person from whom the property is obtained must be actually defrauded. (Hughes Cr. Law, Sec. 582, and cases cited.)

W. E. Mullen, Attorney General, for the State.

It is apparent that the defendant stole the check in question from the mail; that it was not his property and that he had no right to it; that he acted and spoke in a manner sufficient to convince the person who cashed the check that it was a legitimate transaction. So far as the pretenses are concerned it is sufficient if they induced somebody to part with money. It is perhaps immaterial who the defendant intended to defraud. He neither knew nor cared whether payment would be stopped at the bank. He knew he was not entitled to the money, and that his words and acts were false when he asked Mayer to cash the check. Our statute (Sec. 4153, R. S. 1899) contains the substance of the early English statutes defining the offense. (2 Bish. New Cr. Law, Secs. 411-414.) It would not seem necessary under Section 5307, R. S. 1899, to charge an intent to defraud any particular person, nor to prove such an intent, but an allegation and proof of an intent to defraud would seem to be alone sufficient. (12 Ency. L. 825.) It is not necessary to prove that the intent was to defraud the person named in the indictment. (State v. Bourne, 86 Minn. 432; State v. Ridge, 125 N.C. 658.) It is clear that the defendant intended to defraud the rightful owner of the check, and though the information charges an intent to defraud Mayer and Romero, such allegation may be treated as surplusage if held to be unnecessary to charge or prove an intent to defraud a particular person. (Gustavenson v. State, 10 Wyo. 300.)

Upon the general rule four things are necessary to constitute the offense: (1) Intent to defraud. (2) An act committed. (3) A false pretense. (4) The fraud must be committed by the false pretense. (Com. v. Drew, 19 Pick. 179; Com. v. McDuffey, 126 Mass. 470; 2 Horton's Cr. Law (8th Ed.), Sec. 1130; 2 Russell on Crimes (9th Ed.) 618; Desty Am. Cr. Law 580; Haines v. Ter'y, 3 Wyo. 173.) According to the doctrine in the case of Haines v. Territory, supra, it is not necessary that the prosecutor be in fact defrauded.

The negotiation of an indorsed check, the title to which was in another, was in itself a false pretense as to the ownership of the check. (Laws 1905, Chap. 43, Sec. 65.) The defendant's acts and statements amounted to a pretense that he owned the check. He would not have secured the money had he told the truth. It is not necessary that the false pretense be the only inducement to the parting by the prosecutor with his money or property. (People v Haynes, 14 Wend. 547; Haines v. Ter'y, supra; State v. Mills, 17 Me. 211; Com. v. Drew, supra; People v. Haynes, 11 Wend. 557; People v. Herrick, 13 Wend. 87; Smith v. State, 55 Miss. 513; In re. Snyder, 17 Kan. 542; 19 Cyc. 407.) In prosecutions for obtaining money by false pretenses evidence showing the steps preliminary to the commission of the crime is admissible when intended to show the intent. (People v. Winslow, 39 Mich. 505.) The contention that Mayer got what he bargained for, viz.: a perfectly good check which was thereafter honored at the bank upon which it was drawn is not only unsound but untrue. Mayer supposed that the defendant had a right to cash the check. In this he was deceived. If payment had been stopped at the bank Mayer would have been involved in a legal controversy, something he had not bargained for. Each case of false pretenses usually presents circumstances original in themselves, and it is necessary to decide each case by the application of well settled principles of law--the facts of every case being, as a rule, different. The modern trend of authority apparently recognizes the increased complexity of commercial relations resulting from the more general use of checks and other commercial paper, improved facilities of communication, and a more universal use of banks by the general public and seems inclined to a doctrine better calculated to meet such contingencies as appear in this case than the older authorities which observe some very arbitrary distinctions between larceny, embezzlement, larceny as bailee, and obtaining money by false pretenses. A case very...