Parker v. State

• Citation: 137 S.W. 253,98 Ark. 575
• Parties: PARKER v. STATE
• Decision Date: 10 April 1911
• Court: Supreme Court of Arkansas

137 S.W. 253

98 Ark. 575

PARKER v. STATE

Supreme Court of Arkansas

April 10, 1911

Appeal from Sebastian Circuit Court; Daniel Hon, Judge; affirmed.

Judgment affirmed.

Ira D Oglesby, for appellant.

1. The indictment is bad for uncertainty and ambiguity as to parties, offense, county and circumstances. 35 Ind. 419.

2. The instructions are erroneous, and the court erred in admitting testimony.

3. The testimony is at variance with the indictment. In false pretenses it is necessary to set out the false statements and prove them as alleged. 60 Ark. 142.

Hal L Norwood, Attorney General, and Wm. H. Rector, Assistant, for appellee.

1. The indictment is sufficient under our statute. 17 Tex.App. 213; 25 Ohio St. 217; 115 Mass. 481; 34 N.Y. 351; Kirby's Dig § 1689; 60 Ark. 13; Kirby's Dig. §§ 2228-9, 2241-2243.

2. Where the offense is stated with such certainty that the accused knows what he is called upon to answer, and the court and jury the issue they are to try, and an acquittal might be pleaded in a subsequent prosecution, the indictment is sufficient. 5 Ark. 444; 19 Id. 613; 84 Id. 487; 81 Id. 25; 95 Ark. 48; 93 Ark. 406; 92 Id. 413; 94 Ark. 65; 81 Ark. 25.

3. There is no error in the instruction, and the evidence sustains the verdict.

4. The statements of Owens were admissible to show a conspiracy. 77 Ark. 44.

OPINION

FRAUENTHAL, J.

Defendant, Moses Parker, was jointly indicted with one R. B. Owens, charged with the crime of false pretenses. A demurrer was interposed to the indictment upon the grounds, (1) that the facts therein stated did not constitute a public offense; (2) that the indictment charged more than one offense; and (3) that the allegations were too vague, uncertain and conflicting to apprise defendant of the exact accusation brought against him. The demurrer was overruled, and thereupon the trials were severed at the instance of the defendants, and upon his separate trial Parker was convicted, and has appealed to this court.

The indictment was founded upon section 1689, Kirby's Digest, which provides that "every person who, with intent to defraud or cheat another, shall designedly or 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, right of action or other valuable thing or effects whatever, " shall be guilty of this offense. In order to cover the elements of this offense, the indictment should allege the pretense, and that it was false and known by the defendant to be so, and that it was made to the person named in order to defraud him, and that by means of the false pretense the written instrument or thing of value was obtained. 2 Bishop, New Crim. Law, § 163.

It is not necessary that the precise words of the statute should be followed, but words of similar import may be used, even though they may be of more extensive signification. The facts, however, should be stated with that degree of certainty and particularity as will apprise the defendant of the charge that is brought against him; but the indictment will be sufficient if it sets forth in language that may be readily understood all the elements of the offense. By the provisions of our Code, an indictment is sufficient if it contains "a statement of the acts constituting the offense in ordinary and concise language, in such manner as to enable a person of common understanding to know what is intended," and if the "act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment on conviction according to the right of the case." Kirby's Digest, §§ 2243 and 2228.

The false pretense itself is a fraudulent representation of an existing fact or past event by one who knows that it is not true, and of such a nature as to induce the party to whom it is made to part with something of value; and the facts constituting such false pretense should be stated with due certainty. But the false pretense need not be the only inducement to cause the party defrauded to sign the instrument or part with his goods; the pretense may be combined with other motives or be partly founded upon some promise. It is sufficient if the false pretense operated either alone or with other causes. Therefore it will not invalidate an indictment to allege other facts, promises or causes in conjunction with the false pretense which is specifically set forth, if such false pretense is sufficient. 2 Bishop, New Crim. Law, § 1461; 19 Cyc. 421; State v. Vandimark, 35 Ark. 396; Johnson v. State, 36 Ark. 242; Donohoo v. State, 59 Ark. 375, 27 S.W. 226.

The indictment in this case, though somewhat loosely and informally drawn, contains an averment of every fact necessary to constitute the offense charged, and we think with sufficient clearness that, taken as a whole, the defendant would understand and be apprised of the nature of the accusation brought against him. We do not deem it necessary to set out this indictment in extenso; it is sufficient to say that in language that can be understood it charges that the defendant induced one Jessie Byrd to sign a power of attorney authorizing and empowering his co-defendant, Owens, to sell her land, by falsely representing that the instrument was only a power of attorney authorizing and empowering said Owens to mortgage the land in order to secure a loan of fifty dollars for her; that the representation was false, and known by the defendant to be so, and was made with the intent to obtain her signature to the instrument in order to defraud her, and that through this inducement it was signed and delivered and the party defrauded. The indictment contains other allegations, but they only constitute a recital of acts done or promises made by the defendants in conjunction with the above alleged false pretense. These further allegations were unnecessary, but they did not charge any other or different offense, and were not so vague or conflicting as to involve in uncertainty the above specific charge of false pretense made against defendant. We do not think that the court erred in overruling the demurrer to the indictment.

It is urged by the defendant that the court committed error in permitting the introduction of certain testimony which he claims was incompetent. This testimony complained of refers chiefly to statements that were made by said Owens in the absence of the defendant. It appears from the testimony that the party Jessie Byrd owned twenty acres of land in the State of Oklahoma, and on the day the offense is alleged to have been committed she came, in company with her mother and said Owens, to the city of Fort Smith for the purpose of selling her land. She valued it at three hundred dollars, and, after arriving at Fort Smith, Owens informed her that he did not think that it could be sold at any price which she was willing to take therefor. It was then suggested by her and her mother that they would like to borrow some money by giving a mortgage thereon, and about this time the parties met with the defendant Parker. It appears that Jessie Byrd had known defendant Parker for a number of years, and that he had been her teacher when she was a young girl.

Owens stated that, in order for him to negotiate the loan, it was necessary for Jessie Byrd to execute to him a power of attorney authorizing him to execute the proper papers to secure the loan, and thereupon the defendant Parker suggested that they go to the office of a stenographer whom he knew, and who could draft the necessary papers. The testimony on the part of the State tended to prove that when these parties arrived at the office of the stenographer Owens and defendant...