McCrann v. State

• Decision Date: 02 December 1920
• Docket Number: No. 23779.,23779.
• Citation: 128 N.E. 848,189 Ind. 677
• Parties: McCRANN v. STATE.
• Court: Indiana Supreme Court

189 Ind. 677

128 N.E. 848

McCRANN

v.STATE.

No. 23779.

Supreme Court of Indiana.

Dec. 2, 1920.

Appeal from Circuit Court, Hamilton County; Ernest E. Cloe, Judge.

Thomas McCrann was convicted of obtaining money under false pretenses, and he appeals. Reversed.

Robert H. Kinney, of Noblesville, and James M. Ogden, of Indianapolis, for appellant.

Ele Stansbury and Remster A. Bingham, both of Indianapolis, for the State.

WILLOUGHBY, C. J.

The appellant was convicted on an affidavit charging him with a violation of section 2588, Burns 1914, by obtaining money under false pretenses from one Donald E. Johnston. The trial was by the court without the intervention of a jury. The court found appellant guilty, and pronounced judgment on the finding that appellant be fined in the sum of $10, and that he be imprisoned in the state prison for a period not less than one year nor more than seven years, from such judgment he appeals and assigns as error that: (1) The court erred in overruling his motion for a new trial; (2) the court erred in overruling his motion in arrest of judgment.

Under the first assignment the appellant says the finding of the court is not sustained by sufficient evidence and is contrary to law. The affidavit charges that the appellant unlawfully, designedly, knowingly, and falsely pretended and represented to one Donald E. Johnston, with intent then and there and by such false pretenses to cheat and defraud the said Donald E. Johnston, and for the purpose of inducing said Donald E. Johnston to buy of appellant one-half interest in certain property and business known as the Picture Shop, and all fixtures, tools, equipment, materials, and business thereof located on the east side of the public square in the city of Noblesville, Hamilton county, Ind.; that said property was then of the value of $6,000, and would invoice $6,000, and that he, said Thomas McCrann, owned and had on hands as part of the property of said Picture Shop, material and stock sufficient to carry on the business of the said the Picture Shop until the month of May, 1920, and that said stock and material were paid for; that the said Donald E. Johnston, relying on said false representations and false pretenses, and believing them to be true, did buy of said appellant the one-half interest in said Picture Shop, and paid for the same the sum of $2,000.

The affidavit further alleges that in truth and in fact said Thomas McCrann was not the owner of said Picture Shop and property thereof, and that said property was not clear and free of debt and incumbrances; that said property was not of the value of $6,000, but of the value of $4,000; that said appellant did not own and have on his hands sufficient stock and materials to carry on said business of said Picture Shop until May, 1920, and such stock and materials as he did have were not fully paid for, all of which the said appellant then and there well knew.

[1] To sustain a prosecution for obtaining goods under false pretenses it must be, in legal effect, charged in the indictment, as well as proved at the trial, that the goods were obtained by means of the alleged false pretenses. 2 Bishop's Crim. Law, § 461; Clark's Crim. Law (3d Ed.) p. 368; Moore's Crim. Law, § 739; State v. Orvis, 13 Ind. 569;Todd v. State, 31 Ind. 514;State v. Williams, 103 Ind. 235, 2 N. E. 585. The false pretense must be the controlling cause which induced the owner to part with his property. Woodbury v. State, 69 Ala. 242, 44 Am. Rep. 515; Mitchell v. State, 70 Ark. 30, 65 S. W. 935;State v. Conner, 110 Ind. 469, 11 N. E. 454.

Donald E. Johnston, the prosecuting witness, testified as follows:

“I looked over the place and made some investigation. McCrann said the place would invoice between $5,000 and $6,000. He did not say who owned the cash register. He said nothing about it being free and clear from incumbrances, nor as to the ownership of it. He said there was a bill from the Axline Drug Company. I paid $2,000 for a half interest in the business. I paid by check, and a bill of sale and contract of partnership agreement were executed. Before the contract was signed Mr. Feemster inserted the words ‘one cash register.’ Feemster was my attorney. Before the contract was signed I paid the $2,000. I have no opinion of the value of the property. The following guaranty was a part of the partnership agreement: ...