State v. Bacha

• Decision Date: 05 March 1921
• Docket Number: 2445.
• Parties: STATE v. BACHA.
• Court: Nevada Supreme Court

194 P. 1066

44 Nev. 373

STATE v. BACHA.

No. 2445.

Supreme Court of Nevada

March 5, 1921

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

John Bacha was convicted of obtaining money by false pretenses and he appeals from the verdict, judgment, and an order denying his motion for a new trial. Affirmed.

Moore & McIntosh, of Reno, for appellant.

Lester D. Summerfield, Dist. Atty., and W. M. Kearney, Asst. Dist Atty., both of Reno, for the State.

DUCKER J.

The appellant was convicted of the crime of obtaining money by false pretenses. He appeals from the verdict and judgment and from the order of the court denying his motion for a new trial. The statute which the appellant was convicted of violating provides:

"Every person who shall knowingly and designedly, by any false pretense or pretenses, obtain from any other person or persons any chose in action, money, goods, wares, chattels, effects, or other valuable thing, with intent to cheat or defraud any person or persons of the same shall be deemed a cheat, and on conviction shall be imprisoned in the state prison not more than ten years nor less than one year, and be sentenced to restore the property so fraudulently obtained, if it can be done: Provided, that should the value of any chose in action, money, goods, wares, chattels, effects, or other valuable thing so as aforesaid, fraudulently obtained, not exceed in value the sum of fifty dollars, every person so offending shall be deemed a cheat, and on conviction shall be imprisoned in the county jail not more than six months, or be fined in any sum not exceeding five hundred dollars, or by both such fine and imprisonment, and be sentenced to restore the property so fraudulently obtained, if it can be done." Rev. Laws, § 6704.

A number of errors are specified, but the only one urged on this appeal is that the verdict is contrary to the evidence. The facts are substantially as follows:

In the early part of January, 1917, in the city of Reno, the appellant, who was then the owner of a five-passenger Chalmers automobile, borrowed $500 from one Julia Cowan. At the same time he gave her a note and a bill of sale of the car as security for the loan. The money was loaned for a period of six months at 1 per cent. per month interest. It was understood between them that appellant was to retain the possession of the car and could use it during that period, which he did. Julia Cowan was a witness for the state, and testified that at the time of the transaction it was agreed that, if the money was not repaid within six months, the car was to pass into her possession and become her property. She is corroborated as to her version of the agreement by one Corecco, one of the proprietors of the garage where appellant kept his car, who was present at the time of the transaction. He was also a witness for the state, and in respect to this part of the transaction testified that it was agreed between Julia Cowan and appellant that, if he did not pay the $500 within six months, she could have the car on the bill of sale. The appellant was a witness on his own behalf, and in respect to this part of the transaction testified that it was agreed that he was to use the car and sell it at any time, and that she was to keep the bill of sale until he paid her; that the car was to be his all the time, and after the six months was up he would have the right to sell the car if he desired.

Appellant never paid Julia Cowan the amount borrowed from her, or any part of it. The interest on the amount to July 1st was paid by appellant. In July, 1917, and after the six months had expired, she demanded payment of the appellant several times, and finally told him that she was going to take possession of the car and that she claimed the ownership of it. On July 20, 1917, she went to the garage and told Corecco that she had taken possession of the car and that the car belonged to her and that she did not want him to let the car go out of the garage without her permission. She also requested him to remove a wheel from the car, which was done. She testified that from that time on to and during the month of September, 1917, she had possession of the car; that during the month of September, 1917, appellant knew she had possession of the car, for the reason that he came to her several times and wanted to borrow the car, but she would not consent to it. On the 10th of October, 1917, Julia Cowan sold the car to one Coughlin. Corecco corroborated Julia Cowan as to her coming to the garage about the 20th of July, 1917, and instructing him and his brother not to let the car go out of the garage. The former testified that instructions were given to the night man not to let the car go out of the garage under any circumstances. He also testified that he had no knowledge of the car going out of the garage from July 20th until it was sold to Coughlin, except when he and his brother had it out for demonstration purposes, in trying to sell the car for Julia Cowan. Appellant testified that he had the car out and used it frequently from the 20th of July until about three or four days before he left Reno for San Francisco, on the 30th day of September, 1917; that he did not ask permission of any one to take the car out of the garage. He also testified that Julia Cowan did not tell him not to use the car until about three or four days before he left Reno. There is evidence tending to show that he purchased gasoline and oil at the Corecco garage during the period intervening between the 20th of July and his departure from Reno.

On the 18th of September, 1917, appellant borrowed $200 from one Ray Reese in Reno and gave him a 30-day note and a chattel mortgage on the car to secure the loan.

Reese had known appellant in Reno for several years. He knew that appellant had a five-passenger Chalmers automobile and had seen him driving around town on different occasions. They had kept their cars at the same garage. Reese had met appellant at the garage with his car and had never seen him with any other car. When appellant borrowed the money from Reese, the former did not tell him of the transaction with Julia Cowan in which he borrowed $500 from her and gave her a bill of sale of the car. When the appellant offered to mortgage the car, Reese asked him where the car was, and he said it was over at the garage. Appellant asked Reese not to record the mortgage, but the latter had it recorded notwithstanding. There was a telephone in Reese's place of business where the transaction took place and also one at the Corecco garage, but Reese did not call up the garage or go over there to ascertain if appellant had a car there before loaning him the money. Reese testified, in substance, that he would not have loaned appellant the money if he had not offered him a mortgage on his car; that it was the sole inducement to make the loan; that the only representation appellant made to him was that he would give him a mortgage on his car; that in making the loan he relied upon appellant's statements, and therefore did not telephone over to the Corecco garage or go over there to look at the automobile.

Counsel for appellant contends that no false pretense was made, and that, before a conviction can be sustained, it must be proved that the pretense was false; that appellant knew it to be false; and that he intended at the time thereby to defraud the complaining witness. The contention that there was no false pretense made by the appellant is based upon the assumption that the bill of sale given by appellant was in effect a chattel mortgage. Consequently it is urged that at the time he obtained the money from the complaining witness he still had the right to redeem the car from Mrs. Cowan by paying her the amount due her; and that this right gave him an equity in the car which he could lawfully mortgage as security for the loan from Reese.

Counsel for the state insist that the transaction was a conditional sale, and that Mrs. Cowan's title to the car became absolute when appellant failed to make payment as agreed. The testimony clearly shows the nature of the transaction. Surely the mere agreement that the car was to "pass" into the possession of Mrs. Cowan in case of nonpayment did not stamp the transaction as a conditional sale, in the face of...