Simmons v. State

• Citation: 167 A. 60,165 Md. 155
• Decision Date: 21 June 1933
• Docket Number: 23.
• Parties: SIMMONS v. STATE. [a1]
• Court: Court of Appeals of Maryland

167 A. 60

165 Md. 155

SIMMONS v. STATE. ^[a1]

No. 23.

Court of Appeals of Maryland

June 21, 1933

Dissenting Opinion July 10, 1933.

Appeal from Circuit Court, Dorchester County; Jno. R. Pattison Joseph L. Bailey, and Robt. F. Duer, Judges.

Edgar B. Simmons was convicted of obtaining money from a bank by false pretenses, and he appeals.

Affirmed.

ADKINS J., dissenting.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

William L. Rawls, of Baltimore, and Thomas W. Simmons, of Cambridge (A. Stengle Marine, of Cambridge, on the brief), for appellant.

James A. McAllister, State's Atty., and V. Calvin Trice, Sp. Asst. to State's Atty., both of Cambridge (Wm. Preston Lane, Jr., Atty. Gen., and Willis R. Jones, Deputy Atty. Gen., on the brief), for the State.

PARKE Judge.

Edgar B. Simmons was indicted on eighteen counts. The indictment charged him with larceny of money from the Citizens' Bank of Hurlock, Md., under the counts with odd numbers, and with obtaining money from the bank by false pretenses under the counts with the even numbers. Every one of the counts in larceny is followed by a count charging the obtaining of a similar sum of money from the same owner by false pretenses.

The identity of the victim and of the amount and the relative correspondence in time of the crimes charged, and their presentment in separate counts but in the alternative and sequential forms of larceny and false pretense disclose that the offenses alleged in the several counts were associated or cognate crimes.

Before pleading the traverser demanded a bill of particulars. The one furnished was amended, Jules v. State, 85 Md. 305, 36 A. 1027, and the first question raised is the sufficiency of the final particulars furnished by the state. The bill of particulars did not apply to the counts in the indictment which charged larceny, but did furnish the particulars of the offense charged in every one of the counts for the crime of false pretenses. There was no occasion for a bill of particulars of the larcenies. The day and year, the sum of the current money taken, and its value, and the name of its owner, and the felonious taking from its possession by the traverser, were distinctly and clearly alleged in the approved form in every one of the counts charging a larceny. Code, art. 27, § 559; State v. King, 95 Md. 128, 51 A. 1102; State v. Barrett, 148 Md. 155, 128 A. 744; Wedge v. State, 12 Md. 232.

With respect to the even-numbered counts of the indictment, a different problem arises, because the state had there availed herself of the statutory provision that the indictment need not state the particular false pretenses intended to be relied on in the proof. When this is done, the right of the traverser to a definite statement of the false pretense of which he is accused is assured by the statutory requirement that, upon his application to the state's attorney before the trial, the traverser shall be entitled to the names of the witnesses and a statement of the false pretenses intended to be given in evidence. Code, art. 27, § 555. The traverser at bar made this demand, and the state complied but the sufficiency of the bill of particulars is raised. The state furnished the names of the witnesses, whose listing, however, did not restrict the state to their number nor control or affect the competency of witnesses, and, in its discretion, the trial court may allow the state to produce other witnesses than those whose names are so furnished. Cairnes v. Pelton, 103 Md. 44, 63 A. 105; Schaumloeffel v. State, 102 Md. 473, 62 A. 803.

So, the objection to the particulars furnished could not be entertained on the ground that the state had failed to furnish the names of the witnesses for the prosecution; and the reasons assigned were that the particulars were legally insufficient; and that they were a variance from the facts alleged in the false pretenses charged in the counts of the indictment, and inadmissible if offered in evidence.

There can be no question raised of the form and completeness of the particulars, and, so, the exception is one of substance and goes to the admissibility of the facts stated to establish the crime of false pretenses. It, therefore, becomes necessary to consider the crime of "false pretenses," which, for our present purpose, is defined by statute to be when any person shall by any false pretense obtain from any other person any chattel, money, or valuable security, with intent to defraud any person of the same, although an intent to defraud any particular person is not necessary provided it be proved that the traverser did the wrongful act with the intent to defraud, but a mere promise for future payment, although not intended to be performed, is not sufficient to constitute the false pretense. Code, art. 27, §§ 139, 558; Hawthorn v. State, 56 Md. 535; Hochheimer's Criminal Law (2d Ed.) § 319.

The bill of particulars was addressed to a number of counts whose similarity and that of the related sections of the bill of particulars will make a separate consideration unnecessary. It is shown by the bill of particulars that, throughout the entire period of the commission of the crimes charged, the traverser was the president of the bank which was the victim of the false pretenses set forth in the several counts of the indictment; and that he was, also, the president of the Franklin Credit & Finance Corporation against whose deposit account in the bank the several sums of money alleged to have been unlawfully obtained by the traverser were ultimately attempted to be charged. The false pretenses stated in the bill of particulars were that, on the various occasions when he procured money from the bank, the traverser's deposit account was overdrawn and that he so obtained the specified sums of money by previously, falsely, and fraudulently representing to the bank (1) that he had been granted the authority and power to execute and issue a certain charge ticket or paper writing of the Franklin Credit & Finance Corporation for the sum of $2,000 drawn upon the bank and payable by it to the traverser; and (2) that the Franklin Credit & Finance Corporation had previously conferred upon the traverser the power and authority to have charged to the corporation's account of deposit with the bank specific checks which were drawn on the bank by the traverser at divers times when he had no sufficient deposit or funds, and payable to various parties for sundry sums, and that the said bank by reason of such false and fraudulent representations had so paid these checks for the benefit and upon the request of the traverser and to the persons specified by his order in writing.

The substance of the offense was the obtaining of the money and with a fraudulent intent, depriving the lawful owner of its title and possession. While in both classes of the false pretenses set out in the bill of particulars, the money did not manually pass from the possession of the bank to the actual possession of the traverser, the money of the bank was so situated that the bank could and did make a complete transfer of the money to the traverser without actual delivery to him; and such transfer was effected by the bank paying out its money on the order of the traverser to his nominees by reason of the prior, false, and fraudulent pretense or representation by the traverser to the bank that the money of the bank induced to be paid out for the benefit of the traverser had been agreed by the Franklin Credit & Finance Corporation should, by the direction of the traverser, be charged against the deposit account with the bank of the Franklin Credit & Finance Corporation.

The bank was made the innocent agent of the traverser to pay to the parties indicated for the traverser's use and benefit the several sums of money agreed to be paid by the bank, for the traverser. The passage of the title, possession, and control of the money from the bank to the indicated third parties at the traverser's request or in accordance with his written order was an obtaining of the money by the traverser as fully and completely as if the physical delivery had been made to the traverser in person. Schaumloeffel v. State, 102 Md. 470, 473-475, 62 A. 803; Brill's Cyclopedia of Criminal Law, vol. 2, § 1261; 25 C.J. p. 606, § 34; Commonwealth v. Langley, 169 Mass. 89, 47 N.E. 511; Commonwealth v. Harley, 7 Metc. (Mass.) 462; Commonwealth v. Wood, 142 Mass. 459, 8 N.E. 432; In re Dunfee, 219 N.Y. 188, 114 N.E. 52; Foster v. State, 16 Ala. App. 458, 78 So. 721; Clark v. State, 14 Ala. App. 633, 72 So. 291; Sandy v. State, 60 Ala. 58; State v. Balliet, 63 Kan. 707, 66 P. 1005; State v. Mendenhall, 24 Wash. 12, 63 P. 1109; Rand v. Com., 176 Ky. 343, 195 S.W. 802, 806; Commonwealth v. Coe, 115 Mass. 481; People v. Woods, 59 Cal.App. 740, 212 P. 41; People v. Mutchler, 309 Ill. 207, 140 N.E. 820, 35 A. L. R. 339; Russell on Crimes (8th Ed.) vol. 2. pp. 1477, 1478, n. q.

From these considerations and on the authorities cited, the false pretense or fraudulent representation set forth in the bill of particulars with reference to every one of the counts in false pretenses was a false and fraudulent representation of a material and existing fact by the traverser, who knew the fact represented not to be true, but adapted to induce the bank to part with its money in the specified amount. The objections urged by the traverser are, therefore, without foundation, and the rulings of the lower court on the motion of ne recipiatur and on the exceptions to the amended bill of particulars must be sustained. The motion of ne recipiatur was filed two days after the filing of the amended particulars and was, therefore, too late; but the court has considered it here as though it were...