State v. Alick, 7424
| Decision Date | 01 February 1934 |
| Docket Number | 7424 |
| Citation | 252 N.W. 644,62 S.D. 220 |
| Parties | STATE OF SOUTH DAKOTA Respondent, v. CARL ALICK, Appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Codington County, SD Hon. W.N. Skinner, Judge
#7424—Reversed
Danforth & Davenport, R.F. Riemer, Sioux Falls, SD
Attorneys for Appellant.
M.Q. Sharpe, Attorney General
Herman L. Bode, Assistant Attorney General, Pierre, SD
C.G. Aaberg, State’s Attorney, Brookings, SD
Attorneys for the State.
Opinion Filed Feb l, 1934
The defendant was convicted on an information charging him with obtaining property by means of false pretenses. His motion for a new trial was overruled, and he appeals to this court.
It appears from the record that on and for a long time prior to the 1st day of August, 1929, the defendant was engaged in buying and shipping cattle and hogs from various points in Brookings and Lake counties. A few days prior to the 1st day of August, 1929, the defendant went to the farm of one Adolph Hellekson and entered into an agreement for the purchase of certain cattle then owned by said Hellekson. The agreement as originally entered into was to purchase 47 head of said cattle for the lump sum of $4,000. They then made an additional agreement for the purchase of a cow at the agreed price of $75, which was paid for at the time by giving to Hellekson a check for that amount of money and which check was thereafter cashed by Hellekson. Defendant then agreed to pay an additional $10 to Hellekson for caring for said cattle until defendant was ready to ship them.
Early in the morning of August 1st defendant appeared at Hellekson’s farm accompanied by two of his hired men; all three of them riding in a truck. Hellekson had 59 head of cattle in his yard at the time. He and his two hired men, with the assistance of defendant and his two men, proceeded to sort said cattle and drove out of said yard 11 head thereof that were to be retained by Hellekson, leaving, as claimed by Hellekson, 48 head of cattle that were to be turned over to defendant. Hellekson then requested defendant to pay for said cattle before the gate was opened. In compliance with this request, defendant gave Hellekson his check for $4,010 which check was accepted by Hellekson in full payment for the said cattle. The gate was then opened, and the cattle were driven out in the presence of the defendant and his two assistants. The cattle were driven a distance of some five miles from Hellekson’s farm to the town of Sinai, from which point the cattle were to be shipped. It is contended by defendant that, when he was in the act of weighing said cattle preparatory to loading them into the cars, he discovered that there were two head missing. In other words, that he had but 46 head of cattle instead of 48. He claims that he then went to the telephone office and called up Hellekson’s home for the purpose of informing him of the shortage; that a woman’s voice answered and informed him that Hellekson had gone to Volga. He then telephoned to the Wentworth bank in the town of Wentworth, against which bank said check was drawn, and directed the cashier of the bank to stop payment on the said check. He proceeded immediately, however, to ship the said cattle to the Morrell packing plant in Sioux Falls. Whether said cattle had departed from Sinai before the alleged telephone call was made or before he stopped payment on the check does not appear from the record, but all three of these acts took place at about the same time. Defendant does not appear to have seen or attempted to communicate with Hellekson until on the 5th or 6th day of August, when, accompanied by an attorney at law, he went to Hellekson’s place and claimed that he had received but 46 head of cattle, whereas he should have had 48, and offered to settle with Hellekson, provided he would deduct $300 from the amount represented by the check. The purchase price of the cattle averaged a trifle over $85 a head, so that in making this request for a settlement he not only wanted to deduct the cost of the two head he claimed to be missing, but more than the cost of three head. This offer was rejected by Hellekson, and up to the time of the trial of this action defendant had not paid any part whatever of the purchase price of said cattle.
Immediately after giving Hellekson the above check on the morning of August 1st, defendant went to the home of a brother of Hellekson from whom he purchased hogs at the agreed price of $3,991 and paid therefor with a check on the said Wentworth bank for said amount. At the time of issuing said checks, defendant did not have money enough on deposit in said bank to pay said checks, or either of them, and the records of said bank showed that at the close of business on the last day of July, 1929, defendant had an overdraft in said bank of $269.61.
The information charges that, when defendant delivered the said check to Hellekson, he then and there by delivery of the said check represented the same to be a true and valid check for $4,010, and that he had money on deposit in said Bank of Wentworth in an amount sufficient to pay the said check on presentation, whereas the said check was false and worthless and that he did not have on deposit in said bank money sufficient in amount to pay the said check on presentation; that defendant well knew at the time of the delivery of said check that the same was worthless, “... and that he then and there intended to stop payment of said check and that the said Adolph Hellekson relied upon and believed the said writing to be true and valid and worth the sum of $4,010.00 and that the said check when submitted by him for payment would be truly and duly paid and that when said Adolph Hellekson, after having submitted said check for cash payment, said check was returned with notation, ‘payment stopped.’”
At the close of the state’s testimony and again at the close of all the testimony defendant moved the court to advise the jury to return a verdict for the defendant upon the ground in effect that the state had not submitted evidence of the facts charged in the information sufficient to take the case to the jury. This motion was overruled, and error is predicated thereon. This assignment is without merit. In the first place, it has been settled by this court that reversible error cannot be predicated upon the refusal of the trial court to advise the jury to acquit. State v. Stone, 137 N.W. 606. Moreover, it is never proper to advise the...
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