State v. Balliet

• Decision Date: 07 December 1901
• Docket Number: 12,635
• Citation: 66 P. 1005,63 Kan. 707
• Parties: THE STATE OF KANSAS v. STEPHEN A. BALLIET
• Court: Kansas Supreme Court

66 P. 1005

63 Kan. 707

THE STATE OF KANSAS v. STEPHEN A. BALLIET

No. 12,635

Supreme Court of Kansas

December 7, 1901

Decided July, 1901.

Appeal from Ottawa district court; R. F. THOMPSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Obtaining Property by False Pretenses. On the trial of a person charged with obtaining property by means of false pretenses, it is not error, where the same is pertinent to the evidence, for the trial court to give the following instruction: "In order to find that the defendant obtained the goods and merchandise charged in the information, it is not necessary that you should find that he furnished the consideration for the transfer or that the title to such goods and chattels passed to or vested in him. It is sufficient if he obtained the possession or control of such goods and merchandise, or that such goods and merchandise were delivered to another at his request or in accordance with his wishes."

2. CRIMINAL LAW--Elements of the Offense. In such case the law does not make it an element of the offense that the property shall be obtained for the use and benefit of the person making the false pretenses, or that he shall intend to obtain it for himself.

A. A Godard, attorney-general, and F. D. Boyce, county attorney, for The State.

Rees & Mulligan, and C. S. Crawford, for appellant.

OPINION

ELLIS, J.:

The appellant was convicted in the court below of obtaining goods by means of false pretenses, and appealed. It is charged in the information that the defendant, with the felonious intent to defraud John Truex and Thomas Truex of a stock of goods, made the following false representation to them:

"That a certain piece of land (describing it) was rich, level, fertile land, lying on the first bottom of the Arkansas river; that said land was improved by a good house, a splendid well of water; that forty acres were under cultivation, and that all of said land was enclosed by a good fence; that said land was very productive and was fine land on which to grow alfalfa; that there were thousands of acres of alfalfa raised in the vicinity of said land and that said land was of the value of more than $ 2500. . . . Whereas, in truth and in fact, the said land was not rich, level, or productive; was not bottom land; was unimproved; contained no house, well, or fence; said land was not good land upon which to grow alfalfa; was not in the vicinity where alfalfa was raised or could be grown, and was not of the value of $ 2500 but was valueless, all of which he, the said Stephen A. Balliet, then and there well knew."

Except as hereinafter stated the information is formal. The following errors are assigned: (1) The failure of the district court to quash the information, on motion; (2) the refusal to give a certain instruction asked by the defendant; (3) the giving of certain erroneous instructions; (4) the denial of the motions of defendant for a new trial and in arrest of judgment. The motion to quash the information was on the ground that the same did not state facts sufficient to constitute a public offense, and when said motion was heard the court asked the defendant's attorneys to point out any defects. The record recites that they failed so to do, but responded that the motion was on statutory grounds and that they did not wish to argue it. Thereupon the court denied it.

In this court counsel for appellant, for the first time, allege that there is no direct allegation of the ownership of the property obtained by the defendant. After describing the land as to which it is alleged the false pretenses were made, the information charges that said lands, "he, the said Stephen A. Balliet, then and there wished and offered to exchange with the said John Truex and Thomas Truex for their certain stock of merchandise." Another averment is that said John Truex and Thomas Truex "were induced by said false pretenses and representations, so made as aforesaid, to deliver and exchange for said land their said stock of merchandise." In an early case in Maine this form of indictment was used, though no question seems to have been raised in regard to its sufficiency. (The State v. Mills, 17 Me. 211.) McClain, in his work on Criminal Law, adopts the form used in the case just cited, and we have not been referred to any authority holding that the allegations were not sufficient. (1 McClain, Crim. Law, § 711.) Except as an illustration of the ingenuity of counsel in discovering and presenting subtile technicalities the objection is without merit.

It is also contended that the information is defective because it does not allege that the goods were delivered to the defendant. As before stated, the information charges that, through the fraudulent representations, the said John Truex and Thomas Truex "were induced . . . to deliver and exchange . . . their said stock of merchandise" for said land. It is also alleged that "the said Stephen A. Balliet did then and there feloniously, knowingly and designedly receive and obtain the said stock of merchandise from the said John Truex and Thomas Truex, with the intent them, the said John Truex and Thomas Truex, then and there to cheat and defraud of the same." The statutory offense here charged consists of obtaining property by means of false tokens or pretenses. It is distinctly charged that the defendant did obtain the stock of merchandise from John and Thomas Truex, and that he designedly received the same. These allegations, in connection with the averment that Truex and Truex were induced to deliver the stock, would certainly make it clear that the goods were delivered to the defendant.

Again, complaint is made that the information does not aver in express terms that John and Thomas Truex "believed that the said false pretenses were true." It is averred that they believed the said false pretenses and were induced thereby to part with their property. It is difficult to understand how a person can believe a statement without believing it to be true. The natural inference is that, having parted with their goods, having acted upon the pretenses as men ordinarily do who give full faith and credit to the representations of others in business affairs, they relied implicitly upon them as made.

Because of the insistence of counsel, we have considered each of the foregoing contentions, although it is well settled that no obligation...