Pettijohn v. State
| Decision Date | 02 May 1947 |
| Docket Number | 32207. |
| Parties | PETTIJOHN v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
To sustain a conviction in a criminal case the record must contain evidence sufficient to establish beyond a reasonable doubt that the accused is guilty of the offense with which he was charged and convicted.
Ted R. Frogge, of Elwood, and Morrison & Hanson, of McCook, for plaintiff in error.
Walter R. Johnson, Atty. Gen., and Erwin A. Jones, Asst. Atty. Gen for defendant in error.
Heard before SIMMONS, C. J., and PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
Plaintiff in error, Roy Pettijohn, was convicted in the district court for Hitchcock County of the crime of obtaining money by false pretenses. He was sentenced to be imprisoned in the penitentiary for a period of one year. He appeals from that conviction.
The information charges: That Roy Pettijohn did, on the 23rd day of July, 1945, knowingly and falsely represent to Henry P Reese, intending thereby to unlawfully and fraudulently cheat and defraud him, that he, Roy Pettijohn, had secured a purchaser in the person of Albert Meints for the real estate of Henry P. Reese, pursuant to a contract entered into between Reese and Pettijohn; that Reese then informed Pettijohn that he did not desire to sell the land; that thereupon Pettijohn informed Reese that the purchaser was ready, able, and willing to perform and that if he, Reese refused to sell that he, Pettijohn, would be entitled to the sum of $500 by virtue of the contract; that Reese, relying upon these representations, executed and delivered to Pettijohn his note and chattel mortgage in the sum of $500 that on August 30, 1945, Pettijohn sold the note to the McCook National Bank; that on March 30, 1946, Reese paid the bank the full amount due on the note in the sum of $520.83; that the representations made by Pettjohn were false for the reason that Pettijohn had not secured Albert Meints as a purchaser for the real estate of Reese and that Albert Meints had not agreed to purchase it and had not entered into any contract therefor.
For convenience the plaintiff in error will be referred to as the defendant and the defendant in error as the state.
The evidence is very conflicting. However, the jury has determined its weight by finding the defendant guilty. By reason thereof the evidence can be said to establish the following: That Henry P. Reese and Alice Reese, husband and wife, lived on their farm about three miles southwest of Culbertson, Nebraska; that they owned this farm, which is described as the east half of Section 30, Township 3, Range 31, in Hitchcock County; that on July 9, 1945, the defendant came to their home; that as a result of his visit the Reeses then and there entered into a contract with the defendant giving him, for a period of thirty days, the exclusive right to sell their farm on the terms as therein set forth, which terms included the right of a purchaser to immediate possession of the farm, except the buildings and pasture; that the contract provided defendant would receive a commission of $500 upon sale of the farm; that on or about July 17, 1945, the defendant brought Albert Meints, a farmer who lived near Palisade, out to the Reese farm; that Meints had some property in Colorado and was interested in a trade; that Reese told Meints he was not interested in trading; that Reese never saw Meints thereafter with reference to a sale of his farm; that on July 23, 1945, Reese drove from his farm to Culbertson; that on the same day, but after Reese had gone, defendant came to the Reese farm; that Mrs. Reese told defendant that Reese had gone to Culbertson; that she also told defendant that they wanted to back out of the land deal; that defendant then drove to Culbertson and met Reese near the Bree and Foerste Hardware store; that defendant then told Reese that he had the farm sold to Meints; that defendant did not have the farm sold to Meints and Meints had not agreed to buy it; that Reese then told the defendant he would not sell the farm because the corn crop looked good and he wanted to keep it; that defendant then told Reese that he owed him $500 commission; that Reese believed the defendant when he told him he had the place sold to Meints and thought he was telling the truth; that relying thereon Reese agreed to pay the $500; that Reese did not have the money but agreed to and did give the defendant his note in the sum of $500 due March 1, 1946, and a chattel mortgage on 160 acres of corn and 20 acres of cane as security therefor; that the exclusive listing contract was then returned to Reese; that on August 30, 1945, the defendant sold the note to the McCook National Bank and received therefor the sum of $503; that on March 30, 1946, Reese paid the McCook National Bank the sum of $520.83 in full satisfaction of the note and mortgage.
Section 28-1207, R.S.1943, enumerates the different acts that constitute a criminal offense under its provisions and provides in part: '(1) Whoever by false pretense or pretenses shall obtain from any other person, * * * any money, goods, merchandise, credit or effects whatsoever with intent to cheat or defraud such person, * * * of the same; * * *.'
The trial court proceeded under this section of the statute and submitted to the jury the question of the guilt or innocence of the defendant of obtaining money by false pretenses. Will the record sustain such a conviction?
Subsection (4) of the above statute provides: 'whoever shall obtain the signature * * * of any person to any promissory note, * * *, or any other instrument in writing fraudulently or by misrepresentation, * * *.'
Is there a fatal variance between the charge in the information, the issues submitted to the jury, and the proof offered at the trial?
That the obtaining of money by false pretenses and the obtaining of a signature to a promissory note or other written instrument by false pretenses are different offenses is evident from the foregoing subdivisions of section 28-1207, R.S.1943.
'To warrant a conviction in a criminal case, the state is required to establish beyond a reasonable doubt that the accused is guilty of the offense with which he is charged.' 22 Am.Jur., False Pretenses, § 103, p. 502. See Davis v. State, 118 Neb. 828, 226 N.W. 449; Davis v. State, 121 Neb. 399, 237 N.W. 297.
Subdivision (4) of the statute makes the obtaining of a signature to a promissory note or chattel mortgage by false pretenses a crime. There is nothing in the statute that makes the subsequent sale thereof a crime nor is it any part of the crime itself; nor does the statute require that any part of the note be paid.
22 Am.Jur., False Pretenses, § 99, p. 500. See 35 C.J.S., False Pretenses, § 49c, p. 700.
As stated in the case of State v. La Vere, 194 Iowa 1373, 191 N.W. 93, 95:
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