Nemecek v. State

• Decision Date: 11 June 1941
• Docket Number: A--9795.
• Citation: 114 P.2d 492,72 Okla.Crim. 195
• Parties: NEMECEK v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

114 P.2d 492

72 Okla.Crim. 195

NEMECEK v. STATE.

No. A--9795.

Court of Criminal Appeals of Oklahoma

June 11, 1941

Syllabus by the Court.

1. An attempt to commit a crime consists of two elements: (1) the intent to commit the crime; and (2) a direct ineffectual act done towards its commission, which act will apparently result, in the usual and natural course of events if not hindered by extraneous causes, in the commission of the crime itself.

2. The direct ineffectual act done towards its commission, while it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made.

3. An accused cannot be convicted of an attempt to commit a crime unless he could have been convicted of the crime itself if his attempt had been successful. Where the act, if accomplished, would not constitute the crime intended, there is no indictable attempt.

4. In order to justify a conviction for obtaining money under false pretenses, it must appear that the prosecuting witness parted with his money by reason of some of the pretenses set forth in the information, or, if not solely by reason of such pretenses, that they at least materially influenced his action.

5. In a prosecution for attempting to obtain money by false pretenses, where accused had entered three false items on the inventory of insured household goods which were destroyed by fire, the state must show that the said three false items were so designed as to cause the insurance company to pay the amount with which he is charged in the information as having attempted to obtain by false pretenses, or that if undiscovered, they would have been the moving cause or a material influence by reason of which the company would have parted with its money.

6. Where it is admitted that defendant suffers an actual loss by fire in an amount greater than the face amount of fire insurance policy, the inclusion of false items in an inventory presented to claim agent is not a crime as defined by § 2086, O.S.1931, 21 Okl.St.Ann. § 1541, as the proof does not show that the inclusion of said false items would have been the motivating force causing the payment of the money even if relied upon and the money paid; and prosecution, if it is to be maintained, should be filed under § 2243 O.S.1931, 21 Okl.St.Ann. § 1662.

7. The general rule is that when a defendant is put upon trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone; and evidence which in any manner shows, or tends to show, that he has committed another crime, wholly independent, even though it be a crime of the same sort, is irrelevant and inadmissible.

8. As an exception to the general rule, evidence of other offenses recently committed, similar to that charged, is admissible when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or when it shows or tends to show guilty knowledge or intent in the commission of the offense.

9. When the state offers to prove other alleged offenses for the purpose of showing a common scheme, plan or intent, the proof must clearly come within the exception to the general rule and where they are distinct and unrelated offenses, or remote as to time, an objection by the defendant to the proof should be sustained.

Appeal from District Court, Oklahoma County; Clarence Mills, Judge.

Luther J. Nemecek was convicted of the offense of attempting to obtain money by false pretenses, and he appeals.

Reversed and remanded with instructions to dismiss.

Sam S. Gill, of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.

JONES Judge.

The defendant, Luther J. Nemecek, was on October 1, 1938, charged in the District Court of Oklahoma County with the offense of attempting to obtain money under false pretenses, was tried, convicted and sentenced to serve a term of one year in the State Penitentiary, from which judgment and sentence he appeals to this court.

On appeal the defendant makes twenty-seven assignments of error; however, this court finds that it is necessary to consider only one contention of defendant, to-wit:

The court erred in overruling defendant's demurrer to the state's testimony and in refusing to direct the jury to return a verdict of not guilty.

The charging part of the information is as follows:

"On the 7th day of August, A. D., 1938, in Oklahoma County, State of Oklahoma Luther J. Nemecek whose more full and correct name is to your informant unknown, then and there being, did then and there wilfully, unlawfully and feloniously commit the crime of attempting to obtain money under false pretenses in the manner and form as follows to wit: That is to say, the said defendant in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there wilfully, unlawfully, designedly and feloniously attempt to obtain from St. Paul Fire and Marine Insurance Company, a corporation authorized to do business in Oklahoma, $600.00 good and lawful money of the United States of America, by means and use of false and fraudulent representations, that is to say, the said defendant represented and stated to the said St. Paul Fire & Marine Insurance Company that on August 7, 1938, a certain residence located at 236 Southeast 54th street in Oklahoma County, Oklahoma, was destroyed by fire without the fault or procurement of the said defendant; defendant did then and there represent that as a result of said fire as above described, there was then and there destroyed the following property to wit: One small type Hartford upright piano of the value of $92.50; one Kenmore carpet sweeper of the value of $46.45; and one 9 X 15 Axminster rug of the value of $75.50, all the personal property of the said defendant, then and there insured with the St. Paul Fire & Marine Insurance Company, all of which statements by said defendant, as above set out, were made by said defendant with the intent to obtain $600.00 good and lawful money of the United States of America from the St. Paul Fire & Marine Insurance Company, and the said defendant was prevented from obtaining the $600.00 by reason of the said refusal of the said company to pay said $600.00 to said defendant, upon the discovery that said defendant did not then and there possess the above described property at the said address, and the fact that said articles were not destroyed by fire, all of which statements were false and untrue, all of which the said defendant well knew, and the said defendant knowingly made each and all of said false and fraudulent representations with the unlawful, wilful, designed, fraudulent and felonious intent to cheat and defraud the said St. Paul Fire & Marine Insurance Company of said $600.00 as aforesaid, contrary to the form of the statutes in such case made and provided against the peace and dignity of the State of Oklahoma."

This action was brought under § 2086, O.S.1931, 21 Okl.St.Ann. § 1541, which in part states: "Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any *** corporation, any money, property, or valuable thing, of the value of [more than] Twenty ($20.00) Dollars *** by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument *** shall be deemed guilty of a felony and shall be punished by imprisonment in the State Penitentiary, for a term not exceeding seven (7) years, or by a fine not to exceed Five Hundred ($500.00) Dollars, or by both such fine and imprisonment."

The proof of the state showed that defendant took out a fire insurance policy with the St. Paul Fire and Marine Insurance Company on his household furniture in the sum of $600 on June 25, 1938. That his home was destroyed by fire on August 7, 1938; and he reported the loss by telephone. L. H. Wahl, an adjuster for the company, checked the scene of the fire and asked defendant if he had made up a list of his loss. Defendant said that he had not, but on the next day submitted to Mr. Wahl at his office a claim listing the articles purported to have been lost in the fire. Defendant stated that the list had been made up with the help of his wife. On this list were the articles claimed to have been burned, their value, and their date of purchase. Among the many items listed was a piano valued at $92.50, a carpet sweeper valued at $46.45, and a 9 X 12 rug valued at $75.50. Wahl again examined the ruins of defendant's home and failed to find anything that appeared to be the remains of a piano. About ten days after the fire, defendant called Mr. Wahl to inquire about his policy and was told that the loss was still being investigated. Some two or three weeks later defendant called again and stated that he was not going to wait much longer; he wanted some action.

Mr. Wahl testified that he did not give the defendant a proof of loss to fill out. That where a claim is submitted, and upon investigation is found to be correct, an agreement is made as to the amount of the loss; that amount is put in a proof of loss, and the list first submitted is used as a supporting paper for the proof of loss. The proof of loss is sworn to by the claimant and acknowledged. No money is paid to the claimant until the proof of loss is sworn to and acknowledged.

The proof of the state further showed that defendant made a sworn statement in the ...