Mortensen v. State
| Decision Date | 31 January 1949 |
| Docket Number | 4538 |
| Citation | 217 S.W.2d 325,214 Ark. 528 |
| Parties | Mortensen v. State |
| Court | Arkansas Supreme Court |
Rehearing denied February 28, 1949.
Appeal from Garland Circuit Court; Clyde H. Brown, Judge.
Affirmed.
Hebert & Dobbs, for appellant.
Guy E. Williams, Attorney General and Jeff Duty, Assistant Attorney General, for appellee.
Smith J. Ed. F. McFaddin, Justice, dissenting.
Appellant was tried on an information filed by the prosecuting attorney charging him with the crime of obtaining $ 3,000 from the Arkansas Trust Company through false pretenses. He was convicted, given a sentence of five years in the penitentiary, and has appealed.
The information was defective in that it did not recite the false pretenses employed in obtaining the money, and prior to Initiated Act No. 3, would have been demurrable on that account.
Appellant filed a demurrer to the information, which was overruled, after which he filed a motion to require the filing of a bill of particulars, giving the names of the witnesses which the state would produce to testify against him, and "to specifically state what way and by what means the alleged crime was committed; if the alleged crime was committed in person by the defendant, if any other person was connected with said alleged crime, and if so state the name or names and how they were connected with said crime." In response to this motion, a bill of particulars was filed which recited:
The response was not as definite and full as appellant had the right to require it to be, but there was no request that it should be made more particular and certain. Section 4, Act 160 of the Acts of 1937, appearing as § 3796, Pope's Digest, provides that "A supplemental bill of particulars may be required upon order of the trial court, if the bill of particulars filed by the prosecuting attorney is not sufficiently definite to apprise the defendant of the specific crime with which he is charged."
Without requiring a supplementary bill of particulars, which appellant had the right to ask, he filed a demurrer to the information which alleged that the information and bill of particulars did not state an offense or crime under the statutes of Arkansas, and that the court did not have jurisdiction of the appellant, or of the subject matter of the alleged offense.
The demurrer was properly overruled as the information complies with the form of indictment set out in § 23 of Initiated Act No. 3, § 3029 C. and M. Digest, prescribing the form of an indictment in which a violation of the law is charged.
It had been uniformly and frequently held prior to the enactment of Initiated Act No. 3, that in prosecution for grand larceny an allegation of sufficient value to constitute that crime was essential to constitute a valid indictment for that offense. But in the case of Underwood v. State, 205 Ark. 864, 171 S.W.2d 304, Justice Knox said: "In view of the provisions of § 22 of Act No. 3 (Acts 1937, p. 1384), it is doubtful whether it is now necessary in an indictment or information which specifically defines the crime charged as being grand larceny to allege the value of the property stolen." In construing the purpose and effect of Act 3 it was there held (to quote a headnote in that case), "Initiated Act No. 3 of 1936 was adopted by the people for the purpose of simplifying procedure in criminal cases and eliminating some of the technical defenses by means of which criminals had often escaped punishment." Here the information specifically charged the offense of obtaining money through false pretenses, and if it was thought that the first response to the motion for a bill of particulars did not sufficiently apprize appellant of the crime he was charged with having committed, and the manner of its commission, his remedy was to ask a supplemental bill of particulars. But instead of so doing he demurred to the information and now insists:
As we have just said the information did charge the commission of an offense against the laws of this State. The other objections are considered herein.
Appellant's brief discusses these objections under the heads: First, that appellant was not in the state when the money was obtained; Second, that no false representations were made to the Trust Company when the check was cashed; and Third, that one Anna Hale who cashed the check was not acting for or under appellant's orders.
The relevancy of these points will appear from the following summary of the testimony. Appellant was engaged in the publishing business, but his principal business was that of manufacturing and selling cosmetics. He carried his principal bank account with the South Side Trust & Savings Bank of Peoria, Illinois, but he had an account with another bank in the State of Iowa, which he had closed out. In the promotion of his business appellant traveled over several states, but much of his business originated in the Hot Springs, Arkansas, area. He employed one Anna Hale, who operated a beauty parlor in Hot Springs, and clothed her with very wide authority. She was authorized to make collections and deposits with the Trust Company in appellant's name, and an account was opened and a signature card was executed which authorized her, as well as appellant, to draw checks against this account.
The account continued for several months and became quite active. Three similar transactions occurred, one on March 25, 1946, and the other two on March 26, 1946. The one on which the information was based occurred March 26, 1946, in the following manner: Anna Hale drew a check on the South Side Trust & Savings Bank of Peoria, Illinois, for the sum of $ 3,000, payable to her order, to which she signed appellant's name. She endorsed the check and obtained $ 3,000 in cash from the Trust Company in Hot Springs, and on the same day remitted that sum by telegram to the account of appellant with the South Side Trust & Savings Bank of Peoria, Illinois. The only explanation of the unusual transaction of drawing the check on the Peoria bank against appellant's account with that bank, and immediately remitting by wire the proceeds thereof to appellant's account at the same bank, was Mrs. Hale's testimony that this was done at appellant's direction in a telephone conversation.
However unusual the transaction appears to be, the undisputed testimony shows that it occurred as Mrs. Hale testified, and the only dispute about this question of fact is whether appellant authorized what she did. She testified that he did, and he denied authorizing and directing Mrs. Hale to give these checks.
A similar transaction occurred on March 26, 1946, when Mrs. Hale cashed a $ 1,600 check on the Peoria bank, and on March 25th, the preceding day, cashed a check on the Peoria bank for $ 5,000. Mrs. Hale testified that none of these transactions were for her benefit, and that she derived no profit from any one of them, and that all were had and done under appellant's specific direction. While appellant denied giving these directions, the fact is undisputed that Mrs. Hale remitted through the Western Union Telegraph Company these three separate amounts to appellant's credit with the Peoria bank. No one of the three checks was paid by the Peoria bank when presented for payment in the usual course of banking business, and the Trust Company at Hot Springs has sustained the total loss of the amount of the three checks, except that a partial collection was made on the $ 1,600 check.
Appellant admitted when told the checks had been dishonored that he said to an officer of the Trust Company that he would make them good or try to make them good, but he testified that his reason for saying he would make them good or pay them was that he felt morally responsible as the checks were drawn against his account by someone in his organization.
One of the errors assigned for the reversal of the judgment is the admission in evidence of the $ 5,000 check and the $ 1,600 check, but this testimony was competent as corroborating Mrs. Hale's testimony as to this obscure and unusual transaction and as showing the scheme or plan which appellant employed in obtaining the money from the Trust Company.
Now while it is understood that the proceeds of all three checks were remitted to appellant's account with the Peoria Bank, it is also undisputed that appellant was not in this state when the checks or any one of them was cashed, and he therefore insists that the...
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...7. To say the least, a state has jurisdiction of a crime consummated within its borders. State v. Scofield, supra. Cf. Mortensen v. State, 214 Ark. 528, 217 S.W.2d 325; Cousins v. State, 202 Ark. 500, 151 S.W.2d 658. The crime of rape of a female by a male by sexual intercourse is consummat......
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...bank at the time the check was issued. Williams v. United States, 278 F.2d 535, 537(1, 2) (9th Cir. 1960); Mortensen v. State, 214 Ark. 528, 217 S.W.2d 325, 329-330(6) (1949); People v. Becker, 137 Cal.App. 349, 30 P.2d 562, 564(5, 6) (1934); People v. Dennis, 43 Ill.App.3d 518, 2 Ill.Dec. ......
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Smith v. State, 4956
...against the defendant.' Dr. Leflar cites numerous cases in the footnotes to substantiate the statements made. In Mortensen v. State, 214 Ark. 528, 217 S.W.2d 325, 326, appellant was charged by Information with the crime of obtaining money under false pretense, and filed a demurrer to the In......
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