State v. Allen

Decision Date11 October 1954
Docket NumberNo. 9376,9376
Citation275 P.2d 200,128 Mont. 306
PartiesThe STATE of Montana, Plaintiff and Respondent, v. A. F. ALLEN, Defendant and Appellant.
CourtMontana Supreme Court

Jerry J. O'Connell, O'Connell & Daly, Great Falls, for appellant. Jerry J. O'Connell and Gene B. Daly, Great Falls, argued the case orally.

Arnold H. Olsen, Atty. Gen., Ted James, County Atty., Orville F. Gray, Marvin J. Smith, Deputy County Attys., Great Falls, for respondent. Orville F. Gray and Marvin J. Smith, Deputy County Attys., Great Falls, argued the case orally.

FREEBOURN, Justice.

Defendant, charged by information, with a felony--obtaining personal property by means of artifice or pretense, commonly called confidence game or bunco--was upon trial convicted by a jury. From the judgment of conviction defendant appeals.

The information charges that defendant 'did commit the crime of obtaining money by artifice or pretense, in this, to-wit: That said defendant * * * did obtain from one Elsie Dibble certain personal property, to-wit: a diamond ring of a value in excess of fifty dollars * * * by means of artifice or pretense, commonly called confidence game or bunco.'

The information is drawn under R.C.M.1947, Sec. 94-1806, which provides: 'Confidence games. Every person who obtains or attempts to obtain from another any money or property, by means or use of brace faro, or any false or worthless checks, or by any other means, artifice, device, instrument or pretense, commonly called confidence games or bunco, is punishable by imprisonment in the state prison not exceeding ten years.' Emphasis supplied.

The wording of section 94-1806, supra, viz., 'by any other means, artifice, device, instrument or pretense, commonly called confidence games or bunco,' limits the words 'by artifice or pretense' as used in the information to 'confidence games or bunco.' In other words, in order to convict the defendant of the crime charged, the prosecution had to prove by satisfactory evidence and beyond a reasonable doubt that defendant secured the ring from the complaining witness by means of a confidence or bunco game.

A defendant can be convicted only of the offense charged in the information.

In State v. Gaimos, 53 Mont. 118, 162 P. 596, 599, this court said: 'The information can, however, charge but one offense (Rev. Codes, Sec. 9151 [1907, now R.C.M.1947, Sec. 94-6407]), and the defendant can be convicted only of the offense charged. The state cannot prove two or more offenses as such and then select any one of them as the one for which a conviction will be sought. * * * and it necessarily precludes the notion that a conviction can be had for any act other than the one intended from the beginning to be charged.'

In State v. Sauter, 125 Mont. 109, 232 P.2d 731, 734, we said: 'An information can charge but one offense. R.C.M.1947, sec. 94-6407. It naturally follows that a defendant can be tried for and convicted of but one offense, that charged in the information. State v. Gaimos, supra.'

And again in State v. Smith, 57 Mont. 563, 190 P. 107, 114, we said: 'An information must charge but one offense, and the accused can be convicted only of the offense so charged.'

A defendant charged under section 94-1806, supra, with obtaining property by means of a confidence or bunco game, cannot be convicted on evidence which shows that defendant obtained such property 'by false or fraudulent representation or pretenses', R.C.M.1947, Sec. 94-1805, because such crimes, as defined in the above two sections, 94-1805 and 94-1806, are separate and distinct offenses.

In State v. Moran, 56 Mont. 94, 182 P. 110, 114, a confidence game case, when this court consisted of three justices, Chief Justice Brantly and Associate Justices Holloway and Cooper, it was said: 'I [Brantly] concur in the result, thoughI think, with Mr. Justice Holloway, Mr. Justice Cooper [the writer of the opinion] fails to distinguish clearly the crime of practicing a confidence game from that of obtaining money or property by means of a false and fraudulent pretense. The two crimes are wholly distinct. Rev.Codes, Secs. 8683, 8684 [now R.C.M.1947, Secs. 94-1805, 94-1806].

'I [Holloway] agree with the result reached, but not with all that is said in the opinion. Much of the discussion is more appropriate to a consideration of the crime of obtaining money by false pretenses, defined by section 8683, Revised Codes [1907, now R.C.M.1947, Sec. 94-1805]. Obtaining money by means of a confidence game is a distinct offense condemned by section 8684 [Revised Codes, 1907, now R.C.M.1947, Sec. 94-1806].

'There is evidence in the record, in addition to that stated above, which, with the evidence narrated, is sufficient in my opinion, to establish the guilt of defendant Burke.'

'R.C.M.1947, Sec. 94-1805, provides: 'Obtaining money or property by false pretenses. Every person who knowingly and designedly, by false or fraudulent representation or pretenses, defrauds any other person of money or property, including evidence of indebtedness, or who causes or procures others to report falsely of his wealth or mercantile character, and by thus imposing upon any person obtains credit, and thereby fraudulently gets into possession of money or property, is punishable in the same manner and to the same extent as for larceny of the money or property so obtained.'

Section 94-1806, supra, under which defendant was charged, provides three ways in which the crime of securing property by means of a confidence game can be committed: (1) 'by means or use of brace faro'; that is by showing that during the playing of faro, a game played with a dealer, a box, 52 playing cards, and a layout, the case-keeper collusively marks up cards surreptitiously taken from the dealing box by the dealer, so that in the game one or more participants are swindled (see Merriam-Webster's New International Dictionary, 2d Edition); (2) 'by means or use of * * * any false or worthless checks'; (3) 'by any other means, artifice, device, instrument of pretense, commonly called confidence games or bunco'.

We need not further consider methods of obtaining of money or property by means (1) of a crooked faro game, or (2) by a false check, except to say that their inclusion in this section indicates an intent on the part of the lawmakers to make something more than mere words necessary to a conviction under this section.

Section 94-1806 was enacted at a time, 1895, when men, as now, though up and practiced methods, as devious as the winds, in order to obtain money and property from the innocent and unwary. Common it was, at the time, to read in the newspapers how some New York slicker had sold the Brooklyn bridge or the city hall to some up-state 'hayseed,' a wisp of timothy hay between his teeth, a telescope valise or carpet bag in one hand, while the other hand pressed the pocket, filled with long green. About the same time the Iowa 'Jay' with hog dust on his shoes and corn silk behind his ears, was buying a 'gold brick' from a Chicago slicker.

The city slicker did more than gain the confidence of his victim and make false statements to him; he showed him the Brooklyn bridge and the gold brick. This constituted a part or step in the confidence or bunco game.

In the more recent past, one of the common confidence games practiced is that of matching coins.

Butte, Montana, once a town where one could win or lose on the square, has apparently fallen victim to this coin matching game. In the July 19, 1954, issue of the Montana Standard, a Butte morning newspaper, appeared an item describing how a Long Beach, California, youth 'was taken for $75 in a coin matching game at the Union Bus depot;' while a man from Montgomery, Alabama, had just three days before been taken for $100 by the same method at Park and Dakota streets,' which is one block from the bus depot.

In State v. Moran, supra, the complaining witness with money in his pocket to be used in farming, was seated on a city park bench in Great Falls, Montana. Moran came up and sat down beside him, starting a conversation with the complaining witness, during which the victim told Moran of his intention to start in farming. Moran said he had a brother two was farming near Edmonton, Alberta, Canada, and he would write his brother about conditions there. They, by arrangement, met on the following Monday and they started for the post office to see if the letter from Moran's brother, describing conditions, had arrived.

Near the Western Union office they overtook Burke and Moran said, 'Hello there, Spokane', to which Burke replied, 'Guess you are mistaken in your man.' The three started on, Burke going into the building in which the Western Union office was. Later Burke caught up with Moran and the victim and asked Moran to explain where they had met, and Moran went on to tell he had seen Burke in Spokane with a "big roll of bills' in his hands'. Moran went on to say that later he had seen Burke's picture in a Spokane paper which told how Burke had 'cleaned up $80,000' from Seattle pool rooms.

Burke then said, 'You boys are not spotters or detectives, are you?' Moran and the victim said they were not, and Burke then said, 'I am working here for a Breeders' Association of New York, placing some money on some horses. We are trying to break up some exchanges that are carrying on in the different cities.' Moran asked, 'Can't you do a little something for us?' Whereupon Burke pulled out some bills from his pocket and gave them to Moran, who said, 'No, I didn't mean it that way'. Moran then handed Burke a dollar, saying, 'Can't you get us a little cigar money? Place it on the races?' Burke took the dollar, saying, 'Go up the street a few blocks and I will meet you later on.'

Burke disappeared and came back later, giving Moran $2. Following this Burke went on to describe his work in connection with placing bets on the horse races, showing the victim...

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2 cases
  • State v. Cunningham, 37524
    • United States
    • Minnesota Supreme Court
    • 11 Diciembre 1959
    ...585, 56 P. 275, 276, 44 L.R.A. 266; Miller, Criminal Law, § 117; 2 Wharton, Criminal Law and Procedure, § 580.13 See, State v. Allen, 128 Mont. 306, 316, 275 P.2d 200, 205.14 The information in the instant case charges, among other things, that the defendant did 'cheat and swindle' by means......
  • State v. Hale, 9891
    • United States
    • Montana Supreme Court
    • 7 Agosto 1958
    ...section 94-1806, R.C.M.1947, and this has been recognized by this court in State v. Moran, 56 Mont. 94, 182 P. 110, and State v. Allen, 128 Mont. 306, 275 P.2d 200. But section 94-2406 is designed and directed to outlaw the other type of confidence game. In the sleight of hand, fast count, ......

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