State v. Bohannon, 38066

• Decision Date: 23 December 1971
• Docket Number: No. 38066,38066
• Citation: 193 N.W.2d 153,187 Neb. 594
• Parties: STATE of Nebraska, Appellee, v. Ophelia BOHANNON, a/k/a Ophelia Jones, Appellant.
• Court: Nebraska Supreme Court

Page 153

193 N.W.2d 153

187 Neb. 594

STATE of Nebraska, Appellee, v. Ophelia BOHANNON, a/k/a Ophelia Jones, Appellant.

No. 38066.

Supreme Court of Nebraska.

Dec. 23, 1971.

Syllabus by the Court

1. The gist of the offense of obtaining money by false pretenses is the obtaining of the money of another by false pretenses, with the intent to cheat and defraud.

2. To sustain a charge of obtaining money by false pretenses, there must be reliance upon the representations made, and the pretense must be an effective cause in inducing the owner to part with his property. However, it need not be the sole moving cause.

3. If the owner has knowledge of the truth, the offense of obtaining property by false pretenses has not been committed.

4. The intent to cheat and defraud may be proved by the circumstances surrounding the transaction.

5. It is not the province of this court to determine the credibility of witnesses or weigh the evidence in a criminal case.

Shrout, Lindquist, Caporale, Brodkey & Nestle, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Harold Mosher, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

BOSLAUGH, Justice.

The defendant appeals from a conviction for obtaining money under false pretenses. The assignments of error relate to the sufficiency of the evidence to sustain the conviction.

The information charged that from July 1965 to December 1969, the defendant obtained money in excess of $35 from Douglas County, Nebraska, by false pretenses. The jury fixed the value of the money obtained at $3,000.

The evidence shows that defendant is the mother of 9 children and is divorced from William Bohannon, Sr. She applied for Aid to Dependent Children (ADC) in the early 1960's, and received a grant of $195 per month. In July 1967, the grant was increased to $344 per month. From July 1965 through December 1965, she received $13,654.50 in ADC funds.

Eligibility for a grant under the ADC program is determined in part by the resources of the recipient. A parent and 9 children are allowed a maximum of $1,700 in liquid assets under the plan in force in Nebraska. At 6-month intervals a recipient is required to furnish a written statement of assets to the welfare department. This statement is used by the department to determine whether the recipient is eligible to continue to receive a grant under the program.

In 1965, the defendant moved into a house at 4416 North Thirty-eighth Street in Omaha, Nebraska. On July 7, 1965, the defendant, using the name of Ophelia M. Jones, had entered into a contract to purchase this property on an installment basis. The contract was recorded in November 1965. The represented to the welfare department that this property was owned by Clifford E. Jones and that she was renting it for $75 per month.

On April 29, 1966, the defendant opened a checking account in the Ames Plaza Bank, using the name of Ophelia M. Bohannon. On May 9, 1966, the account was changed to a joint account in the names of Clifford or Ophelia M. Jones.

On September 29, 1967, a certificate of title to a 1967 Cadillac automobile was issued to the defendant, using the name of Ophelia M. Jones.

In February 1968, the defendant, using the name of Ophelia Jones, entered into a contract with Clifford E. Jones for the purchase of a property at 2407 Ames Avenue where Jones operated a music shop known as Psychedelic Sounds. The contract was recorded in February 1968.

On July 23, 1969, a certificate of title to a 1966 Chevrolet automobile was issued to the defendant, using the name of Ophelia M. Jones.

The record contains 6 asset statements signed by the defendant dated October 18, 1965, August 26, 1966, March 15, 1967, September 20, 1967, January 30, 1969, and September 15, 1969. The checking account, the real estate, and the automobiles are not listed on any of these statements.

The defendant claims that she has no beneficial interest in any of the items which were omitted from the asset statements. She contends that the checking account, the real estate, and the automobiles are really the property of Clifford E. Jones and that Jones placed the property in her name in an effort to avoid any claim by his divorced wife. Jones testified that he was the owner of the property in question.

The records of the welfare department show that on November 15, 1967, a neighbor complained that the defendant was 'buying property, driving a 1968 Cadillac and living with a man.' A caseworker called on the defendant to discuss the complaint. The defendant told the caseworker that Jones, her landlord, was 'divorced and desires arrangements to keep his property from his ex-wife and children. Therefore, he wanted to place his new car and some property he had bought in her name.' The caseworker advised the defendant 'to have the name changed on this car registration and property.' About 6 weeks later the department ascertained that a Cadillac automobile was registered under the name of Ophelia M. Jones. On February 8, 1968, the caseworker again visited the defendant and 'emphasized the importance of Mr. Jones putting the car into his name.'

Apparently, the department did nothing further until 1970 when the records in the courthouse were examined and it was ascertained that the Cadillac was still registered in the defendant's name and that she was a party to the contract to purchase the property on Ames Avenue. Her grant was then suspended as of January 1, 1970, and her case closed on April 1, 1970, 'because of assets in excess of eligibility.'

The gist of the offense is obtaining the money of another by false pretenses, with the intent to cheat and defraud. Dwoskin v. State, 161 Neb. 793, 74 N.W.2d 847. The evidence of the State tended to prove that the defendant was the owner of the property omitted from the asset statements. The jury was not required to believe the testimony of the defendant and Jones that she had no beneficial interest in the property. It is not the province of this court to determine the credibility of witnesses or weigh the evidence in a criminal case.

An essential element of the offense is that there be reliance upon the representations made. Beyl v. State, 165 Neb. 260, 85 N.W.2d 653. The pretense must be an effective cause in inducing the owner to part with his property, and if the owner has knowledge of the truth, the offense has not been committed. However, the pretense need not be the sole moving cause that induced the owner to part with his property. Wax v. State, 43 Neb. 18, 61 N.W. 117.

To the extent that the welfare department had knowledge of the defendant's ownership of property omitted from the asset statements there was no reliance on the asset statements. The record does not show that the welfare department had any information concerning the checking account, the property on Ames Avenue, or the 1966 Chevrolet automobile until after December 1969. As to these items the jury could find that the welfare department relied upon the asset statements.

The defendant contends that the evidence is insufficient to establish an intent to cheat and defraud the county. The intent to cheat and defraud may be proved by the circumstances surrounding the transaction. State v. Swanson, 179 Neb. 693, 140 N.W.2d 618.

The defendant argues that she did not want to have the grant continued; that it was reinstated in 1969 without any request from her after a 3-month suspension; and that she did not appeal from the action of the department in closing her case in 1970. The record shows that the defendant could have terminated the grant at any time by a written request to the department. If the defendant did not want the money, she could have returned the checks instead of cashing them. The fact that she did not comply with the advice of the caseworker in regard to the Cadillac automobile and the property on Thirty-eighth Street was a circumstance to be considered by the jury in determining her intent.

The judgment of the district court is affirmed.

Affirmed.

CLINTON, Justice (dissenting).

I respectfully dissent.

This court has held in a large number of cases, one of which is Beyl v. State, 165 Neb. 260, 85 N.W.2d 653, that an essential element of the crime of obtaining money by false pretenses is reliance by the defrauded party upon the alleged false representation. In the cited case this court approved a statement from other Nebraska cases as follows: "It is not sufficient that there is a false pretense; The owner of the property must rely on it; the pretense must be An effective cause in inducing the owner to part with his property. Therefore, if the owner has knowledge of the truth or does not believe the pretense, or, although believing it, yet parts with the property on some other inducement, or investigates it and parts with the property, relying entirely on the results of his investigation, the offense has not been committed." (Emphasis supplied.)

The record in this case clearly discloses, I think, as a matter of law that (1) the information contained in the official records of the welfare department shows that at the time the payments were made the welfare department did not (and as a matter of law could not) rely upon the alleged misrepresentations contained in the asset statements because the department had knowledge of the facts which the State now claims were fraudulently concealed, and (2) the evidence in this case does not show Mrs. Bohannon had assets (including those originating with Jones) which made her children ineligible for ADC payments. Any failure to disclose facts which, if known, would not have made her ineligible to receive the payments on behalf of her children is legally immaterial because the existence of such facts could not be the basis of denial of aid. As a consequence such nondisclosure, whether deliberate or through misunderstanding, could not be an Effective cause in inducing...