Midgley v. State

• Citation: 232 P. 967,29 Okla.Crim. 108
• Decision Date: 31 January 1925
• Docket Number: A-4570.
• Parties: MIDGLEY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

232 P. 967

29 Okla.Crim. 108

MIDGLEY v. STATE.

No. A-4570.

Court of Criminal Appeals of Oklahoma

January 31, 1925

Syllabus by the Court.

An information based on section 2145, Comp. St. 1921, which defines the offense of obtaining property under false pretenses, is not fatally defective merely because the ownership of the property obtained is not alleged in direct terms, if that fact is clearly shown by the information.

The obtaining of an extension of credit upon a note or an extension of indebtedness is not sufficient to constitute the crime of obtaining property by false pretenses.

Appeal from District Court, Le Flore County; E. F. Lester, Judge.

E. M Midgley was convicted of obtaining money by false pretenses and he appeals. Reversed.

Neal & Neal, of Poteau, for plaintiff in error.

George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.

EDWARDS J.

Several assignments of error are presented for the reversal of this case, it being first contended that the amended information on which plaintiff in error was tried is insufficient, in that it fails to allege unequivocally the ownership of the property charged to have been obtained by the false pretenses set out as the basis of the amended information. Numerous authorities are cited to the effect that it is necessary to state to whom the property belonged. The amended information does not in direct terms aver the ownership of the property. This court in the case of Fuller v. Ter., 2 Okl. Cr. 86, 99 P. 1098, upheld an information in practically the same language as the information in this case.

It has been held in other jurisdictions that it is not a fatal defect to fail to allege the ownership in direct terms, if the indictment or information as a whole clearly discloses that fact. State v. Knowlton, 11 Wash. 512, 39 P 966; Griggs v. U. S., 158 F. 572, 85 C. C. A. 596; State v. Balliet, 63 Kan. 707, 66 P. 1005; People v. Skidmore, 123 Cal. 267, 55 P. 984; State v. Boon, 49 N.C. 463; McClintock v State, 98 Neb. 158, 152 N.W. 378; People v. Monroe, 64 A.D. 130, 71 N.Y.S. 803. See, also, in this connection Douglas v. State, 15 Okl. Cr. 648, 179 P. 947; Bennett v. State (Okl. Cr. App.) 204 P. 462.

The plaintiff in error requested the following instruction:

"You are instructed that the term 'valuable thing' as used in these instructions means some physical thing of value, and not the extension of credit or the renewal of credit already extended."

The court, upon this point, gave this instruction:

"If you believe from the evidence, beyond a reasonable doubt, that the defendant * * * did obtain from the Le Flore County Bank, a corporation, the sum of $270, interest on $5,400 from January 7, 1921, to June 7, 1921, or a certain promissory note bearing date of January 7, 1920, for the sum of $2,500, by then and there falsely and designedly representing * * * that

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