Smith v. State, 131

• Decision Date: 03 March 1965
• Docket Number: No. 131,131
• Citation: 207 A.2d 493,237 Md. 573
• Parties: James Francis SMITH v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 573

237 Md. 573

207 A.2d 493

James Francis SMITH v. STATE of Maryland.

No. 131.

Court of Appeals of Maryland.

March 3, 1965.

Morris Lee Kaplan, Baltimore (Michael Lee Kaplan, Baltimore, on the brief), for appellant.

David T. Mason, Asst. Atty. Gen., Baltimore (Thomas B. Finan, Atty. Gen., Charles E. Moylan, Jr., and Edward G. Wyatt, State's Atty. and Asst. State's Atty., respectively, for Baltimore City, Baltimore, on the brief), for appellee.

Before PRESCOTT, C. J., HAMMOND, HORNEY and SYBERT, JJ., and J. DeWEESE CARTER, Special Judge.

J. DeWEESE CARTER, Special Judge.

The defendant was convicted in the Criminal Court of Baltimore of obtaining money by false pretenses in violation of Article 27, Section 140, Code (1957), and sentenced to ten years in the Maryland Penitentiary. He appeals from that judgment.

It was established by the evidence that the victim, Mrs. Clifford Horsman, a widow of six months duration, placed an advertisement in The Sunday Sun, a Baltimore City newspaper, offering a room for rent to a gentleman. On the following Monday evening she received a telephone call from a man who identified himself as Thomas Frame inquiring if the room had been rented. The next morning the defendant appeared and identified himself as the person who had called. Mrs. Horsman requested his credentials and he informed her that after he arrived in Baltimore his wallet containing $1800 and his credentials was stolen. After renting the room, he departed. During his absence that day Mrs. Horsman received another telephone call from a purported Mr. Bell who advised her that Mr. Frame's bonus of $1800 would be delivered to him that day. When the defendant returned to the house he informed Mrs. Horsman that his check was being wired but that he needed money in the meantime to start his men on a construction job, whereupon she loaned him $400. Immediately thereafter, on the same day, he received another telephone call at Mrs. Horsman's home and informed her he needed $850 additional. She protested but agreed to let him have it until that afternoon. After this advance he again left Mrs. Horsman's home. While he was awary he telephoned her, later that day, that he had to go to Hagerstown to get his trunk containing $18,000 in bonds, and explained that he had sold his home when his wife and child were killed in an airplane crash. He again contacted Mrs. Horsman early the next morning when he instructed her to call him at 8 A.M. as he was expecting a long distance call. The next morning a woman called at Mrs. Horsman's house inquiring for Mr. Thomas Frame and he answered the call. Thereafter, he informed Mrs. Horsman his big boss from Chicago had directed him, by wire, to go to the Lord Baltimore Hotel before noon that day and meet a Mr. Wilson, who had some stock that his big boss wanted; that if he could get the stock he would be able to double his money and that he only wanted money for this purpose until noon. She then took him to the bank, withdrew $4,000 and delivered it to him. Neither his money nor luggage ever arrived and she never saw him thereafter until his arrest. No part of the money advanced has ever been returned. He testified that he had been engaged in the confidence game since 1957; that he was introduced to the game by one Danny Collins with whom he had since been associated; that Collins made the original telephone call to Mrs. Horsman and directed him to go to her home; that Collins further directed him to go back to her home after he had secured $1250, which he did and obtained $4,000 additional; that Collins' share of the deal was to be $3,000 and that, although he had sufficient monies from his race track winnings, a short time after the loan from Mrs. Horsman, to repay her in full as well as pay Collins his share he did not do so because he considered what he had won at the track his personal property. He further stated he entered into the Horsman deal to turn Collins over to the police and did not intend 'to beat' Mrs. Horsman out of her money. Several clerks at the defendant's apartment house testified and none recalled any incoming calls received by him in support of his statement that he received many calls from Collins during his stay there from April 5, 1963 to May 17, 1963.

On May 2, 1963, Mrs. Horsman made a formal complaint concerning the incident to the Baltimore City Police Department. Based on her identifying description, the defendant was apprehended at his Baltimore apartment on May 17, 1963. When the police took him in custody, he gave his name as James Francis Bell and introduced his wife as Mrs. Bell. At the police station he first denied any knowledge of matters concerned in Mrs. Horsman's complaint and gave permission to search his apartment. In his apartment the police found lists of telephone numbers representing persons who had advertised rooms for rent. Opposite some of the numbers were placed the letters 'N.G.' which he explained meant no good, that is: that either a man answered the call or whoever answered did not sound like a good house. Also found in the apartment was an identification card in the name of James Frame and a social security card in the name of James Francis Smith.

The court in its instructions to the jury said in effect there were three elements which constituted the crime of obtaining money by false pretenses in violation of Section 140, Article 27, Code (1957), namely:--(1) false representation of a past or existing fact; (2) made with intent to defraud; and (3) that the victim actually relied on the false representations to her loss. He further stated that if the jury found these three elements to have been established beyond a reasonable doubt it was immaterial whether the money obtained was loaned, advanced as a speculation or otherwise transferred; that the statute made no mention of a loan although it does set forth that a mere promise for future payment not intended to be performed shall not be sufficient to authorize a conviction. The defendant excepted to that portion of the charge dealing with the matter of whether the statute included a loan transaction and contended that it was not so inclusive.

The defendant's motions for judgments of acquittal at the conclusion of the State's case and the whole case were denied. He contends the trial court committed reversible error:--(1) in denying his motions; (2) in allowing his verbal confession to be introduced in evidence over objection; and (3) in its instructions to the jury which in effect set forth that a loan was not excluded from the statute.

This Court set forth the elements necessary to establish guilt under the subject statute (Code (1957), Article 27, Section 140) in Davis v. State, 229 Md. 139, 141, 182 A.2d 49, where it said:

'In order to convict an accused on the charge of obtaining money or property by false pretenses, the State must show that there was a representation of a past or existing fact made with intent to defraud, and that the operation of such representation as a deception induced a transfer and the obtaining of the money or property by the person committing the fraud to the loss of another. Marr v. State, 227 Md. 510, 177 A.2d 862; * * * Willis v. State, 205 Md. 118, 123, 106 A.2d 85.' (Numerals supplied.)

In respect to the first element it appears that the material representations of the defendant to Mrs. Horsman were:--(1) that he was engaged in the construction business and needed money to pay his men; (2) that he had his wallet stolen containing his credentials and $1800 soon after his arrival in Baltimore; (3) that he was to receive immediately a bonus of $1800; (4) that he had $18,000 in bonds in a chest in Hagerstown which represented the proceeds from the sale of his home; (5) that he had received a wire from his boss in Chicago suggesting that he buy certain stock from a Mr. Wilson within a few hours and that it presented an opportunity to double his money; and (6) that he was a widower without children. All of these representations were admitted by the defendant to be false. They...