Pippin v. State

• Citation: 88 So. 502,126 Miss. 146
• Decision Date: 06 June 1921
• Docket Number: 21728
• Court: Mississippi Supreme Court
• Parties: PIPPIN v. STATE

88 So. 502

126 Miss. 146

PIPPIN v. STATE

No. 21728

Supreme Court of Mississippi

June 6, 1921

APPEAL from circuit court, Copiah county, HON. D. M. MILLER, Judge.

1. FALSE PRETENSES. Indictment for obtaining money or goods under false pretenses must charge name of party defrauded proof as to name of person defrauded must correspond with allegations.

An indictment for obtainng money or goods under false pretense should charge the name of the party defrauded or whose money was obtained by false pretense, and the proof as to the name or the party whose money or goods was obtained by false pretense must correspond to the allegation in the indictment and a variance between the indictment and the proof will be fatal. When the indictment charges a particular person named was the owner of the money or goods obtained, and the proof shows it was obtained from a firm composed of two or more persons, the variance is fatal.

2. FALSE PRETENSES. Instruction held erroneous.

It is reversible error to grant the state, in a case of false pretense in which the indictment charges a named person as being defrauded, and that the money was obtained by the pretense, a charge: "That if you believe from the evidence beyond all reasonable doubt that the defendant represented that he owned six mules on which he gave the trust deed in evidence to secure a debt to Rempe and Son, and thereby, by means of such representations and trust deed, he obtained from Rempe the sum of $750 in money, and if you further believe from the evidence, beyond all reasonable doubt, that he did not own the six mules embraced in said trust deed when said deed was executed, then he is guilty of obtaining said money under false pretenses and you should so find him guilty."

HON. D M. MILLER, Judge.

J. H Pippin was convicted of obtaining money or goods by false pretenses, and he appeals. Reversed, and judgment rendered for appellant.

Judgment reversed.

Gwynes & Mahaffey, for appellant.

1. The indictment alleges Pippin obtained the money of Rempe by executing to him and in his favor a deed of trust upon certain mules, etc. The deed of trust offered in evidence was one executed in favor of F. Rempe & Son rather than in favor of E. H. Rempe.

The rule is that, if what is necessary in the allegation is made unnecessarily minute in description, the proof must satisfy the description as well as the main part, since the one is essential to the identification of the other. 1 Bishop on Criminal Procedure (3 Ed.), sec. 489; 19 Cyc. 438; Schayes v. People, 5 Colo.App. 75, 37 P. 43. "'A variance between the description of the pretense in an indictment for obtaining property by a false pretense and the proof is fatal. 19 Cyc. 438; Copeland v. State, 97 Ala. 30, 12 So. 181; O'Conner v. State, 70 Ark. 30; Mitchell v. State, 70 Ark. 30, 65 S.W. 935; Carey v. State, 112 Ga. 226, 37 S.E. 405; Fambrough v. State, 113 Ga. 934, 39 S.E. 324; Dechard v. State, (Tex. Crim. App. 1900), 57, S.W. 813; Limouse v. People, 58 Ill.App. 314; Smith v. State, 33 Ind. 159.

In the last-named case defendant was indicted for obtaining property under a contract set out in the indictment and it appeared that he obtained it under another contract. This was fatal variance.

In Copeland v. State, supra, it was held that where the indictment sets out a contract with C, and the evidence disclosed a contract between defendant and C and W. the variance is fatal in prosecution for false pretense. The indictment having been based upon deed of trust in favor of E. W. Rempe, it is now offered to be proven by showing deed of trust in favor of F. Rempe and Son. "But where the indictment attempts to set forth the document itself instead of by its effect or designation, it must be correctly set forth." Wharton on Crim. Ev. sec. 116, and Note, also sec. 94, samebook; State v. Owen, 73 Mo. 440.

In State v. Keifer, 172 Iowa 306, 151 N.W. 440, a note obtained by false pretense was described in the indictment as having been given by D. B. Stower. The variance was held to be fatal, See also Headly v. State, 17 So. 714, (Ala.). 2. The indictment sets out that defendant Pippin obtained from the said E. M. Rempe the sum of seven hundred fifty dollars of lawful money of the United States of America, of the value of seven hundred fifty dollars etc. The proof showed that he obtained no money whatever from E. H. Rempe.

The facts were that said E. H. Rempe acting for F. Rempe and Son had made contract with one Spitchley for hauling logs for said firm and advanced to Spitchley the sum of seven hundred fifty dollars. Spitchley transferred this contract to Pippin and agreed to pay him, seven hundred-fifty dollars and also one hundred fifty dollars to take it over. Spitchley made out check to F. Rempe and Son for seven hundred fifty dollars on Merchants' and Planters' Bank which E. H. Rempe endorsed in the name of F. Rempe and Son in favor of J. H. Pippin; that said Spitchley turned over this check to said Pippin or rather had said Pippin to endorse the same and he then procured from said Merchants' and Planters' Bank a cashier's check and delivered this to said Pippin. This constitutes, in our opinion, a fatal variance in the property obtained.

Any variance between the proof and the allegation as to the money obtained or as to the nature of the property is fatal. See Litman v. State, 9 Tex.App. 461; Marwilsk v. State, Tex. App. 377. Same is true as to the currency in which it is alleged the amount was paid. See Fay v. Commonwealth, 28 Gratt. (Va.) 912. In Carr v. State, 16 So. 155, 104 Ala. 4, it is held that an allegation of conversion of money does not cover conversion of a check. 3 We submit the variance between the ownership of the property alleged in the indictment and that shown by the proof is fatal.

H. Cassedy Holden for appellee.

Conceding for purposes of argument, that E. H. Rempe was merely an agent or representative of the firm of F. Rempe and Son, and granting that he was not a member of the partnership, still there is no variance. The cases for the most part hold that indictments which lay the ownership of the property obtained by the fraudulent pretenses in an agent or bailee of the owner will be sustained. Thus, an indictment which lays the ownership of the property in a bailee is sufficient. Britt v. State, 9 Humph. 31.

So, indictment laying the ownership of property in a person is sustained by proof that the goods were in his possession as selling agent for the owners. Com. v. Blanchette, 157 Springs, 2 Legal Gaz. Rep. 93, it was held proper to lay the ownership of a registered letter obtained from the postmaster by means of false pretenses, in the post office department. So, in R. v. Dent, 1 Car. & K. 249, it was held that the ownership of money belonging to a benefit society might be properly laid in one of the stewards thereof, from whom it was fraudulently obtained. And in R. v. Rouse, 4 Cox, C. C. 7, it was held that an indictment laying the ownership of the money obtained, in the secretary of a fraternal society is sustained by proof that the money belonged to the society, and was paid out by the treasurer upon the order of the secretary.

An indictment may lay the ownership of the property obtained in one who held a chattel mortgage upon the same, and who, upon the sale of the property, was to receive the notes given for the purchase price as payment of his mortgage. Barber v. People, 1 Hun. 366. And the ownership of money belonging to a county and deposited in a bank, which was obtained from the bank by fraudulent orders, is properly laid in the county treasurer. State v. Lynn, 3 Penn. (Del.) 316, 51 A. 878.

The great majority of the reported cases uphold the rule that an indictment for larceny, robbery, or some other crime based on a larceny, which alleges ownership in a certain person, will be sustained by proof that such person is the agent or bailee of the true owner, or has, in behalf of the owner, the control, care, and management of the property stolen. In few cases, the allegation of ownership has been held insufficient; but, in these cases, for the most part, a general rule is asserted, the court holding, however that the person in whom the ownership was laid did not bear the relationship of agent or bailee to the true owner. There is no distinction made by the cases between the different kinds, and the same rule is equally applicable to larceny or robbery, or other crime based on a larceny.

So, in the following cases, indictments which laid the ownership of the property stolen in agents were sustained; State v. Vincent, 16 S.D. 62, 91 N.W. 347; State v. Farris, 5 Idaho, 666, 51 P. 772; People v. McDonald, 43 N.Y. 61; State v. Washington, 15 Rich. L. 39; State v. Philits, 73 S.C. 236; 53 S.E. 370; Gatling v. State, 39 Tex. 130; Bagley v. State, 3 Tex.App. 163; Otero v. State, 30 Tex.App. 450, 17 S.W. 1081; Kersh v. State, 45 Tex. Crim. Rep. 451, 77 S.W. 790; Shelton v. State, 52 Tex. Crim. Rep. 611, 108 S.W. 679; R. v. Jennings, 7 Cox. C. C. 397; R. v. Webster, 9 Cox, C. C. 13; R. v. Burgess, 9 Cox, C. C. 302; R. v. Roberts, 7 Car. & P. 485.

So, the ownership of property belonging to a minor child may properly be laid in a parent. Bazon v. State, (Tex. Crim. App.), 24 S.W. 100; Wright v. State, 35 Tex. Crim. Rep. 470, 34 S.W. 273; or in a guardian who is in control and possession of money belonging to his ward. (Thompson v. State, 22 Ga. 499.)

One who has the custody of public funds or property may properly be alleged as the owner in an indictment for the larceny thereof; as a superintendent of the poor, in charge of goods which were to be distributed by him (People v Bennett, 37 N.Y. 117, 93 Am. Dec. 551; R. v. Went, Russ. & R. C. C. 359); or a county treasurer in charge of...