State v. Bokien

• Decision Date: 13 April 1896
• Citation: 44 P. 889,14 Wash. 403
• Parties: STATE v. BOKIEN.
• Court: Washington Supreme Court

44 P. 889

14 Wash. 403

STATE v. BOKIEN.

Supreme Court of Washington

April 13, 1896

Appeal from superior court, Pierce county; Emmett N. Parker, Judge.

Frank L. Bokien was convicted of obtaining goods under false pretenses, and appeals. Reversed.

F. W. Cushman, for appellant.

ANDERS J.

The information upon which the defendant and appellant was tried and convicted charges that: "The said Frank L. Bokien on or about the 31st day of December, 1894, at the county of Pierce, and state of Washington, and within one year next prior to the filing of this information, did unlawfully, feloniously, designedly, and with intent to defraud one I. J. Sharick, that he, the said Frank L. Bokien then had on deposit in the Pacific National Bank of the city of Tacoma, in the state of Washington, the sum of eleven dollars, which said sum of money he, the said Frank L Bokien, then and there feloniously, designedly, and falsely and with intent to defraud the said I. J. Sharick represented and pretended to the said I. J. Sharick that he, the said Frank L. Bokien, then and there had a right to draw out of said bank by check in the ordinary mode, and did then and there feloniously, designedly, and with intent to defraud the said I. J. Sharick further falsely represent and pretend to him, the said I. J. Sharick, that he, the said Frank L. Bokien, had the right and authority to draw a bank check on said Pacific National Bank for the sum of eleven dollars, and that a certain bank check drawn by said Frank L. Bokien on said bank, payable to the bearer, or said I. J. Sharick, for the sum of eleven dollars, which check he then and there delivered to said Sharick, was a good and valid order for the payment of said sum of money, and would be paid by said bank on presentment for payment; whereas, in truth and fact, he, the said Frank L. Bokien, did not then have on deposit in said bank the sum of eleven dollars, and did not then and there have a right to draw out of said bank said sum of eleven dollars, by check or otherwise, and did not then have the right or authority to draw a bank check on said bank for said sum of eleven dollars, and said check delivered to said Sharick as aforesaid was not a good or valid order for the payment of said sum of eleven dollars, and was not paid by said bank on the presentment thereof for payment. All of which said false representations and pretenses the said Frank L. Bokien then and there well knew to be false; by color and by means of which said false representations and false pretenses he, the said Frank L. Bokien, did then and there unlawfully, fraudulently, feloniously, and designedly obtain from the said I. J. Sharick one silver-plated water pitcher of the value of eleven dollars, of the personal property of the said I. J. Sharick, with the intent then and there feloniously to cheat and defraud him, the said I. J. Sharick." This information was drawn upon section 234 of the Penal Code, which provides that: "If any person, with intent to defraud another, shall designedly, by color of any false token or writing, or any false pretense, obtain from any person any *** thing of value, such person shall, upon conviction thereof, be imprisoned," etc. The information was demurred to in the trial court on the ground that it failed to state facts sufficient to constitute a crime, and the same objection is urged here. It is claimed by appellant that it is defective in that it does not allege "the relation of the fraud to the bargain, which in case of sale must appear"; or, in other words, that it is not averred therein that the alleged false pretenses were made with a view to effect the sale of the pitcher, and that by reason thereof the party was induced to make the sale and part with his property. It is a well-settled rule that an indictment or information must set forth all the facts and circumstances necessary to constitute the crime sought to be charged. If, therefore, as defendant claims, the omitted allegations are necessary under our statute in order to charge the offense of obtaining property by means of false pretenses, it follows that the information is insufficient. That such averments are necessary seems to have been decided in State v. Philbrick, 31 Me. 401; Com. v. Strain, 10 Metc. (Mass.) 521; State v. Orvis, 13 Ind. 569; and some other cases cited by appellant. But we are not prepared to hold that it must be specifically and positively averred, in cases of sale or exchange, that the false pretenses were made with a view to effect such sale or exchange, and that by reason of the alleged pretenses the party defrauded was induced to sell or exchange, as the case may be. It seems to us that whatever is necessarily implied from the language used ought to have the same force and effect as if specifically alleged, and that, if it appears from the information, though not by direct and positive averment, that a party was induced to part with his property by reason of certain specified false pretenses, such information is sufficient under the statute, if not objectionable in other respects. It will be noticed that, although the information in this case does not allege in express terms that the prosecutor, Sharick, sold or exchanged the pitcher for the check, or that he was induced to part with it by the alleged pretenses, it does allege, in substance, among other necessary facts, that appellant represented and pretended that the check was good and valid; that it would be paid on presentation at the bank; that it was delivered to Sharick; that the alleged representations were false, and that appellant knew them to be false, and that by means thereof he obtained the pitcher from Sharick. If it be true that appellant obtained the property from Sharick by means of the alleged pretenses, it must also be true that the latter relied on the pretenses, and was induced thereby to part with his property. It would manifestly be impossible for one person to obtain the property of another by means of false pretenses which had no influence upon his mind, and in no way induced him to make the transfer. While this information may not be, in all respects, as perfect in form as it might have been, we are nevertheless of the opinion that it sets forth facts sufficient, under the provisions of our Code, to constitute the offense of obtaining property under false pretenses. And it may be added that, according to the view of Mr. Bishop, it contains all the allegations essential to a good information. Bish. Directions and Forms, § 419 et seq. See, also, Desty, Am. Cr. Law, § 149a, and People v. Jordan, 66 Cal. 10, 4 P. 773.

Prior to the calling of the jury, the defendant moved the court to quash and set aside the entire panel of jurors, on the grounds (1) that the 100 names were selected by the old, and not the new, board of county commissioners; (2) that the commissioners selecting the same never qualified according to law; and (3) that the list of 100 names was not properly certified, or certified at all, to the clerk of the court. The first ground of the motion was abandoned on the argument, and we think the remaining two are without substantial merit. By section 58 of the Code of Procedure it is provided that every board of county commissioners "shall select *** the names of one hundred persons to serve as petit jurors during the ensuing year," and shall certify the same to the clerk of the superior court; and each county commissioner, before entering upon the duties of his office, is required to give a bond to the county in a specified amount, "which bond and the sureties thereon shall be approved by the clerk of the superior court of the proper county." Laws 1893, p. 177. In approving the bonds of the respective commissioners, the clerk indorsed thereon or attached thereto the words, "This bond approved as to sufficiency of sureties this 5th day of September, 1893;" and it is argued that because the clerk did not also specifically state that he approved the bond as to its form and substance, as well as to the sureties, the commissioners were not qualified to select the list of jurors, and that the selection made by them was consequently absolutely null and void. It is not claimed that the bond itself is in fact insufficient or defective, or that it is not a binding obligation upon the commissioners. We must, therefore, assume that the commissioners gave the bond required by law, and in fact did all that was necessary to qualify themselves to enter upon the duties of their office. By giving a proper bond, they each became entitled to hold the office, and to discharge its duties. They were the county commissioners of Pierce county, and therefore were the proper persons to select the list of jurors.

But it is claimed on behalf of appellant that, even if the commissioners were qualified to make the selection, they failed to certify the list of names selected to the clerk of the superior court, as required by statute; and that the panel drawn from the list should have been set aside for that reason, if for no other. It is true that the board of commissioners do not say in express terms that they "certify" to the correctness of the list selected by them, but they do say that, "pursuant to section 58 of Code of Procedure the commissioners of Pierce county have selected one hundred names from persons of their county competent to serve as petit jurors, and hereby instruct the clerk of the board to certify the same to the clerk of the superior court as the list of petit jurors drawn for the ensuing year, as follows." The names of the persons so selected are then set out, after which appears the signature of the chairman of the board, attested by the county auditor. From this, we think, it sufficiently appears that the commissioners selected the...