Odom v. State
| Decision Date | 04 December 1922 |
| Docket Number | 22084 |
| Citation | 94 So. 233,130 Miss. 643 |
| Court | Mississippi Supreme Court |
| Parties | ODOM v. STATE |
1. FALSE PRETENSES. Indictment held sufficient.
An indictment under section 1166, Code of 1906 (section 893 Hemingway's Code) for obtaining money and goods under false pretenses, which charges that, "by means and color of which said false pretense of the said J. A. Odom did then and there knowingly, designedly, and feloniously obtain of and from the said Fagan-Peel Company such money and goods," is sufficient, and not subject to demurrer.
2. FALSE PRETENSES. Intent to return money, or actual return, no defense.
It is no defense to a charge of obtaining money or other valuable thing under false pretense, as defined in section 1166, Code of 1906 (section 893, Hemingway's Code), that the defendant intended to repay the money and return the property, or that before indictment he had repaid the money and returned the property so obtained by him, for the crime is complete when it is shown that the money and property were obtained by the defendant by means of the false pretense known by the defendant to be false; therefore an instruction for the state embodying that principle, and the refusal of one for the defendant embodying its converse was not error.
APPEAL from circuit court of Wayne county, HON. J. D. FATHEREE Judge.
J. A. Odom was convicted of obtaining money and goods of value by means of false pretenses, and he appeals. Affirmed.
Affirmed.
Guynes & Mahaffey, for appellant.
We respectfully submit to the court that the demurrer in this case should have been sustained and refer in support of this to State v. Tatum, 96 Miss. 430, and Pippin v. State, 88 So. 502, wherein this court held that:
As to the second assignment of error we submit to the court that the evidence in this case does not sustain the indictment.
We insist that a careful reading of the record will disclose that the defendant in this case was convicted, not on competent evidence and under proper instructions, but on irrelevant evidence and under improper instructions. That the record will support our contention that the defendant did not have a fair and impartial trial that is guaranteed to him by the laws of the land, and that the evidence in this case is not sufficient to support the indictment, and the case will be reversed and remanded and defendant discharged.
H. T. Odom, assistant attorney-general for the state.
It is contended by counsel that the court was in error in overruling the demurrer to the indictment in this case. The fault that he finds with the indictment is that the indictment fails to allege the names of the individual partners composing the partnership.
We respectfully submit that there is absolutely no merit in this contention, as will be seen by reference to the indictment, pages 3 and 4 of the record. It will be seen from the indictment that it is absolutely clear that the Fagan-Peel Company is a corporation, and not a partnership.
In support of counsel's contention, he cites State v. Tatum, 96 Miss. 430, and Piping v. State, 88 So. 502. We admit that under the holdings in both of the above cases and all other cases on this point in Mississippi, that the rule is well settled that there must not be a variance between the allegations in the indictment and the proof as to the ownership of the property fraudulently obtained, and that such a variance is fatal, but this rule of law has no application here for the reason that the allegation in the indictment as to the ownership of the property is sustained by the proof. The proof shows that the Fagan-Peel Company is a corporation, record page 8, and there is no proof in the record to the contrary.
A casual reading of the record will disclose the fact that the conviction in this case was supported by ample testimony. Therefore, we deem it unnecessary to burden the court by further argument on this point.
Appellant, J. A. Odom, was indicted, convicted, and sentenced to the penitentiary on the charge of obtaining from Fagan-Peel Company, a corporation, money and goods of the value of five hundred and seventy-five dollars, by means of false pretenses, in violation of section 1166, Code of 1906 (section 893, Hemingway's Code), from which judgment he prosecutes this appeal. The statute under which appellant was indicted follows:
"Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, upon conviction thereof, shall be punished by imprisonment in the penitentiary not exceeding three years, or in the county jail not exceeding one year, and by fine not exceeding three times the value of the money, property, or thing obtained."
The evidence for the state is to the effect that appellant obtained from Fagan-Peel Company five hundred and seventy-five dollars in goods and money, to secure the payment of which he gave a deed of trust on a lot of oxen and log wagons which he represented that he owned, and that on the faith of such representation Fagan-Peel Company parted with the money and property, and took said deed of trust; and that appellant knew at the time he did not own said oxen and log wagons. The evidence on behalf of appellant tended to show that when he got the five hundred and seventy-five in money and property from Fagan-Peel Company he intended to pay it back, and had paid a considerable portion of it when indicted.
The action of the court in overruling appellant's demurrer to the indictment is assigned as error. The question raised by the demurrer is whether the indictment sufficiently...
To continue reading
Request your trial
-
State v. Fitzgerald
... ... commit false pretenses is an indictable offense at common ... law. Wharton, Criminal Law, sec. 212 et seq.; Bishop, ... Directions and Forms (2 Ed.), par. 434 ... The ... allegations of an indictment to charge false pretenses. See ... State v. Freeman, 103 Miss. 764; Odom v ... State, 130 Miss. 643; State v. Grady, 147 Miss. 446, 111 ... Necessary ... allegations to charge an attempt to commit false pretenses ... See State v. Phillips (Mont.), 92 P. 299; State v ... Riddell, 74 P. 447, 25 C. J. 637, sec. 73, par. 4 ... In ... State v ... ...
-
State v. Mills
...the defendant intented to pay for the goods he obtained. See also People v. Hand, 127 Cal.App. 484, 16 P.2d 156 (1932); Odom v. State, 130 Miss. 643, 94 So. 233 (1922). In Odom the defendant had obtained $575 in goods and money. To secure the payment of the goods and money he gave a deed of......
-
Neece v. State, 44761
...substantial merit. 88 Miss. at 288, 40 So. at 643. This statement is equally true and applicable in the present case. In Odom v. State, 130 Miss. 643, 94 So. 233 (1922) the question raised by the demurrer to the indictment was whether it sufficiently charged that the party defrauded was mov......
-
State v. Grady
...in his directions and Forms (2 Ed.), section 422, and, by this court, in State v. Dodenhoff, 88 Miss. 277, 40 So. 641, and Odom v. State, 130 Miss. 643, 94 So. 233. State v. Freeman, 103 Miss. 764, 60 774, is relied upon by the appellant, but, as was pointed out in the Odom case, that case ......