Moline v. State

• Decision Date: 21 January 1903
• Docket Number: 12,693
• Citation: 93 N.W. 228,67 Neb. 164
• Parties: ALFRED MOLINE v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

93 N.W. 228

67 Neb. 164

ALFRED MOLINE v. STATE OF NEBRASKA

No. 12,693

Supreme Court of Nebraska

January 21, 1903

ERROR from the district court for Phelps county. Prosecution under section 125 of the Criminal Code, for obtaining signature to a certain warranty deed. Tried below before ADAMS, J Conviction. Reversed.

REVERSED AND REMANDED.

Hector M. Sinclair, John L. McPheely, S. A. Dravo and William N.E Hall, for plaintiff in error.

Frank N. Prout, Attorney General, and Norris Brown, for the state:

In the first place we confess to the court that the state has rarely, if ever, met an attempt more able and more lawless to acquit a thorough scoundrel and cheat on purely technical grounds than the one confronting it in this case. The evidence is clear and conclusive of the absolute truth of every allegation in the information contained. In fact no pretense was made on the trial of the case that the complaining witness had been defrauded of anything less than his 160-acre farm.

The history of the crime may be briefly summarized as follows Mr. Krapf was an old man, 66 years of age, owning the legal title, occupying and farming a quarter section of land in Phelps county, Nebraska, worth about $ 2,500. He was acquainted with Moline, the defendant, who was ostensibly a real estate dealer living in Holdrege, Nebraska, but operating in the wide fields of several states Moline was the possessor of a written instrument purporting to be a warranty deed to certain lands located in the state of Indiana, made out in blank as respects the grantee and signed by one Miller. The deed was a fraud and a forgery. Miller was a fictitious person, or at least one having no title or interest in the Indiana land. The owner of the Indiana lands testified to his ownership thereof, producing a deed therefor. Moline conceived the idea that to trade the Indiana deed to Krapf for a deed to his quarter section would be a profitable deal. To further this design, he induced one Anderson, by offering him $ 700 for his services, to pretend to Krapf that he, Anderson, owned the Indiana land and would trade it for Krapf's homestead. This Anderson did, but when it came to make the transfer his conscience awakened and he refused to trade, advising old man Krapf to keep his Phelps county farm. Moline was enraged, and applied vigorous and profane language to his co-conspirator. Krapf went home; but Moline was not to be so easily balked; his determination to carry out the original plan to steal a farm did not falter or hesitate; he pursued Krapf, and claiming to have gotten by a trade the Indiana farm himself, proposed that he would take Anderson's place in the transaction, provided the old man would give him $ 200 in addition to his land. Krapf finally consented, but executed his note for the $ 200, not having the cash. Krapf's name as grantee was written in the Indiana deed and Krapf and his wife executed and delivered a warranty deed of the Phelps county farm to Moline. Within a day Moline redeeded the Krapf land to a third party and Krapf was left homeless and landless because he got nothing when he accepted the Indiana deed. There is some evidence in the record that Moline had offered to reinvest Krapf with title to his purloined farm as evidence of his prior good faith in the trade; but the evidence shows that the offer was made after this prosecution had begun and on condition that the prosecution should end; Krapf was unwilling as well as unable to comply with the condition. The utter fraud and cheat of the transaction was confessed when in open court, upon the cross-examination of Krapf, the defendant tendered him deeds to his farm signed by both Moline and Moline's grantee. The record is pathetic at this point where the old man said, in reply to defendant's interrogatory, that he was willing to accept and keep the tendered deeds. It will be patent to the court when examining the testimony in this case that this "deed tendered" was a grand-stand play, made for the sole purpose of bolstering the sham theory of the defense, that Moline had acted in good faith in the transaction and that as soon as he discovered the Indiana deed to be a fraud he had endeavored to give back the stolen farm. This claim is utterly false and deliberately so. If Moline had been acting in good faith, it would not have been necessary for him to invite Anderson's co-operation in the deal at an expense to himself of $ 700. If Moline was innocent of the character of the Indiana deed, why did he seek to have another than himself claim to possess and own it? Where did Moline get that deed? He claimed to witnesses before the trial to have gotten it from different persons and his explanation on that subject when he testified is far from removing the conviction that he got it from another co-conspirator made and executed for the very purpose to which it was afterwards devoted in victimizing Krapf. If there was ever a crime proved or punishment merited, it is proved and merited in this case. The question then is, are there technical reasons sufficiently substantial to vacate the finding of the jury and the sentence of the court so richly just?

An information is sufficient if it sets forth all the ingredients necessary to constitute the offense; though not in the language of the statute.

A statutory offense may be charged in language other than that employed in the statute, provided the language used sets out all the facts and ingredients necessary to constitute the offense defined by the statute. "Every material constituent of the offense," Smith v. State, 63 Ala. 55; "whatever is made by statute an essential part of the offense," Conyers v. State, 50 Ga. 103; "all the particulars that enter into the statutory description of the offense, either in the language of the statute or other equivalent language," State v. Wright, 52 Ind. 307; "the substance of the statutory definition of an offense," United States v. Dickey, 1 Morris [Ia.], *412; "need not designate it by the name employed in the statute," State v. Rigg, 10 Nev. 284; "facts which the statute requires to constitute the offense," concluding contra formam statuti, People v. Stockham, 1 Parker Cr. R. [N. Y.], 424. "A criterion of the sufficiency of an indictment for a statutory offense is that the averments should make it certain that the act charged is an act forbidden by the statute, and so exclude any assumption that the indictment may have been proved and the defendant may still be innocent. This is all that is required." State v. Mclville, 11 R. I. 417.

"In charging the commission of an offense in an indictment, it is not necessary that the exact words of the statute be used, provided the words employed are the equivalents in meaning of those contained in the statute." Whitman v. State, 17 Neb. 224.

Following this case, the court has reaffirmed the above rule in Kirk v. Bowling, 20 Neb. 260; Hodgkins v. State, 36 Neb. 160; Wagner v. State, 43 Neb. 1; Bartley v. State, 53 Neb. 310; Carrall v. State, 53 Neb. 439.

OPINION

HOLCOMB, J.

The defendant was convicted and sentenced to the penitentiary for three years on the charge of having by false and fraudulent representations obtained the signature of one Frederick Krapf to a written instrument, viz. a warranty deed, of the value of more than $ 35, contrary to the provisions of section 125 of the Criminal Code. To secure a reversal of the judgment of conviction, he prosecutes error.

The criminal prosecution of the defendant has the appearance of having been instituted on the theory that under the provisions of the section mentioned he was guilty of a felony for having obtained by false and fraudulent representations title to and the possession of a quarter section of real estate of the alleged value of $ 2,500. On the trial, however, it seems that this theory was abandoned and the information construed as charging the crime of obtaining by false pretenses the signature of the owner of the land to a warranty deed, by which the transfer of title was effectuated. The reasons for the view we take of the record as just expressed will appear more clearly from what follows. Section 125 of the Criminal Code, in so far as it is material to an intelligent discussion of the question now under consideration, is as follows: "If any person, by false pretense or pretenses, shall obtain from any other person, * * * any money, goods, merchandise, credit or effects whatsoever with intent to cheat or defraud such person, * * * or if he shall obtain the signature or indorsement of any person to any promissory note, * * * or any other instrument in writing, fraudulently or by misrepresentation, if the value of the property, or promissory note, or written instrument * * * fraudulently obtained or conveyed as aforesaid, shall be thirty-five ($ 35) dollars, or upwards, such person so offending shall be imprisoned," etc.

The information, after charging sufficiently the facts constituting the alleged false and fraudulent pretenses, continues in the following language: "That relying upon and believing in said false pretenses and representations of the aforesaid Alfred Moline then and there made the aforesaid Frederick Krapf was induced to give up his property to the said Alfred Moline and then and there traded, conveyed and delivered by warranty deed to the aforesaid Alfred Moline the southeast quarter (S. E. 1/4) of land in section twenty-four (24), town five (5), north of range twenty (20), west of 6th N.E. M. in Phelps county, Nebraska, of the value of $ 2,500."

On the submission of the cause to the jury at the trial, after the evidence was heard, among other instructions given them the following language was made use of: "The prosecution in this case, seeks a conviction under that part of ...