Norris v. State
| Decision Date | 15 February 1926 |
| Docket Number | 177 |
| Citation | 280 S.W. 398,170 Ark. 484 |
| Parties | NORRIS v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Jefferson Circuit Court; T. G. Parham, Judge; affirmed.
Judgment affirmed.
Rowell & Alexander and H. Jordan Monk, for appellant.
H. W Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
Appellant was convicted on a charge of obtaining a check under false pretenses, and has appealed. The indictment is of unusual length, but, stripped of its legal phraseology, its allegations are as follows: That appellant, C. B. Norris, was on August 9, 1924, agent of the Metropolitan Life Insurance Company, a corporation under the laws of New York, and hereinafter referred to as the insurance company. That this insurance company issued a policy of insurance on the life of Sim Davis, agreeing thereby to pay a sum of money upon the death of Davis. That appellant, desiring to cheat the insurance company, fraudulently represented to it that Davis had died on August 6, 1924; that Dr. C. E. Spann attended and treated the said Davis in his last illness; that Mary Jones, a sister of Davis, was the beneficiary in said policy, and had paid all premiums due thereon and was entitled to receive the amount thereof, which was $ 135.60. That a statement in writing purporting to be that of the physician attending Davis in his last illness, dated August 9, 1924, and signed C. E. Spann, M. D., and a statement in writing dated August 9, 1924, and signed Mary Jones, claimant, were filed with the company as proof of the death of the said Davis, whereas, in truth and in fact, the said Sim Davis did not die on August 6, 1924, and was not dead; that Dr. C. E. Spann did not attend Davis; that Mary Jones had not paid the premiums on the policy, and had made no claim as his beneficiary. That these false representations were made to the insurance company by appellant, who knew them to be false, and by means of said false pretenses appellant Norris induced the insurance company to issue its bank check for the sum of $ 135.60, payable to Mary Jones, and of the value of $ 135.60, with the fraudulent intent of defrauding the insurance company out of that sum of money.
Appellant demurred to the indictment, and excepted to the action of the court in overruling the demurrer. In support of the assignment of error that the court erred in overruling the demurrer, it is insisted that the alleged false pretenses are based upon written instruments, and that these should have been set out in the indictment.
We do not think so. The offense charged is a statutory one, and it was not essential to set out the identical language of the writings referred to. It was sufficient to set out the substance and purpose of these writings, and this was done. There was nothing about these instruments which would require the court to construe them.
At § 43 of the chapter on False Pretenses in 11 R. C. L., page 859, it is said that "where a written instrument is only a step in the transaction or an incident to the offense, a particular description thereof is unnecessary." See also, Pruitt v. State, 78 So. 425; State v. Caldwell, 44 N.W. 711; State v. Western Union Tel. Co., 160 Ark. 444, 254 S.W. 838.
It is next insisted that the court had no jurisdiction, for the reason that the check in question was issued in New York City, and was payable and was paid there. But the indictment alleges that the check, which was a thing of value, was obtained in Jefferson County, where the venue was laid, and the proof sustains that allegation. The check was mailed to and delivered in Jefferson County, and the testimony shows that the false representations which induced the mailing of the check to Jefferson County were made in and mailed from that county. The offense charged was that of obtaining a check, and the delivery thereof was in Jefferson County.
It is insisted that the demurrer should have been sustained because the indictment does not allege that the insurance company parted with its money by reason of its belief in and its reliance upon the false pretenses. The allegation of the indictment is that "by color and means of which said false pretenses he, the said C. B. Norris, induced the said Metropolitan Life Insurance Company to issue its bank check for the sum of $ 135.60, payable to Mary Jones." We think this allegation sufficiently alleges that the false pretenses induced the company to issue and deliver its check.
It is insisted that the demurrer should have been sustained because the indictment shows on its face that the check was payable to a third person other than appellant and was not shown to have been indorsed by him, and that such a check is not a valuable security within the meaning of the statute under which the indictment was drawn.
The statute referred to is a very comprehensive one. It provides that "every person who, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretenses, * * * obtain from any person any money, personal property, right of action, or other valuable thing or effects whatever, upon conviction thereof shall be deemed guilty of larceny and punished accordingly." § 2449, C. & M. Digest.
The check was alleged to be of the value of its face, and the statute does not require that the "valuable thing" shall be obtained for one's own self. It is sufficient that it be obtained from the owner with the intent to cheat and defraud the owner, and it is immaterial therefore that, in fraudulently causing the check to be issued, appellant did not have himself named as the payee therein.
It is insisted that the testimony is insufficient to sustain the conviction. Answering this assignment of error, it may be said that it was shown that it was the custom of the manager of the insurance company in Pine Bluff, out of which office appellant operated as an agent, to deliver blanks upon which to make proof of death when the report was received that a policyholder had died. The proof required by the insurance company before issuing a check in payment of a death claim consisted of a claimant's statement, a statement of the physician attending the insured in his last illness, and a statement on the part of the agent assisting in making up the proof. When these proofs were received by the insurance company, and were found in proper form, and were approved by the general manager at Pine Bluff, a check was mailed to the manager at Pine Bluff through whose office the claim was received, and the check was delivered to the claimant by the agent who had made up the proofs. The agent's statement on the death claim of Davis was identified by the insurance company's manager at Pine Bluff as being in the handwriting of appellant. The policy in question was known as an industrial policy, and it was not required that the beneficiary be named in the policy, but the company accepted the claimant recommended by the agent. The agent's statement, signed by appellant, named Mary Jones as the claimant to whom the check should be made payable. The statement signed by appellant recited that he had called on Dr. Spann and had verified the doctor's statement. Dr. Spann testified that he did not know Sim Davis and had never treated him professionally, and that he had not signed the physician's statement which bore his name.
Sim Davis, who was a colored man, testified that appellant delivered to him a policy in the insurance company, for which witness was to pay twenty cents per week, and that his payments were noted in a book given him for the purpose by the agent to whom the payments were made; that he got behind in his payments after making them for a year and a half, and that appellant came to him and took up his receipt book and the policy, and soon afterwards appellant came to the home of witness and asked him to state, if any inquiry was made about the policy, that he (witness) had never had a policy, and that he was not related in any way to any woman named Mary Jones.
Appellant testified that a woman claiming to be a sister of the insured, who called herself Mary Jones, produced the policy and receipt book and claimed the benefits under the policy, and that he, believing the statement of the woman to be true,...
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...forgery had uttered the forged instrument in the county where the indictment was found. Our holding is not contrary to Norris v. State, 170 Ark. 484, 280 S.W. 398, because we only held there that the court had jurisdiction of an alleged offense of obtaining a check under false pretenses whe......
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...other cases using the word design to mean intent or guilty knowledge are Ross v. State, 92 Ark. 481, 123 S.W. 756, and Norris v. State, 170 Ark. 484, 280 S.W. 398. It is quite apparent that cases such as these do not support the State's position in the case at bar. The only evidence that co......
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