State v. Bosch

Decision Date26 January 1932
Citation7 P.2d 554,139 Or. 150
PartiesSTATE v. BOSCH. [*]
CourtOregon Supreme Court

Department 2.

Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.

H. H Bosch was convicted of making a false financial statement to secure credit and extension of credit, and he appeals.

Reversed and remanded.

Guy O Smith, of Salem, for appellant.

C. W Barrick, of Tillamook, for the State.

CAMPBELL J.

Defendant was tried and convicted in Tillamook county on an indictment charging him with the violation of section 14-335 of Oregon Code 1930 by making a false financial statement for the purpose of securing credit and the extension of credit from the Tillamook National Bank. He was sentenced to the county jail for a term of one year, and to pay a fine of $1,000.

Defendant appeals.

There was no question raised as to the sufficiency of the indictment. On May 6, 1929, defendant was indebted in a sum exceeding $5,000 to the Tillamook National Bank. On that day, at a meeting in the bank with its president and cashier, he furnished the bank with a financial statement of the property he owned and its value, and the incumbrances on the same. In this statement, it is alleged, was included a parcel of real estate near Brooks, in Marion county, that on that date stood in the name of, and was owned by, his wife. The evidence shows that on that date his indebtedness to the bank was reduced to some extent by a note for $1,500 signed by his wife, which was afterwards paid by her. There still remained owing by defendant to the bank $4,500, which would be due June 14, 1929, and $682, which was past due. The past-due obligation was converted into a note payable on demand and dated May 6, 1929. Later, when the $4,500 note became due, it was also converted into a demand note.

The Legislature at its 1921 session enacted what is known as chapter 62 of Session Laws of 1921 (page 83), being, "An Act Relating to false statement in writing to obtain credit and providing a penalty therefor", and provides as follows:

"Section 1. Any person who shall knowingly make *** any false statement in writing, with intent that it shall be relied upon, respecting the financial condition, or means or ability to pay, of himself *** for the purpose of procuring in any form whatsoever, *** the making of a loan or credit, the extension of a credit, *** shall be guilty of a misdemeanor and punishable by imprisonment in the county jail for not more than one year or by a fine of not more than $1,000, or both fine and imprisonment." Or. Code, 1930, § 14-335.

"Section 2. Any person who, knowing that a false statement in writing has been made, respecting the financial condition or means, or ability to pay, of himself, or such person, firm or corporation in which he is interested, or for whom he is acting, procures, upon the faith thereof, for the benefit either of himself, or of such person, firm or corporation, either or any of the things of benefit mentioned in section 1 of this act, shall be guilty of a misdemeanor and punishable by imprisonment in the county jail for not more than one year or by a fine of not more than $1,000, or both fine and imprisonment." Or. Code 1930, § 14-336.

Section 3 of the act makes it a misdemeanor for any person to make, in writing, a false statement, to the effect that any former statement so made was and still is a correct statement, for the purpose of procuring credit or other benefits, and such person would be punishable in the same manner as in the other sections provided. Or. Code 1930, § 14-337.

The case was tried and submitted to the jury on the theory that the indictment charged a violation of section 14-336 of the Code; that is, that the defendant actually procured the benefit of an extension of credit by reason of the false statement, rather than the actual charge in the indictment of a purpose to procure an extension of a credit. The introduction in evidence by the state, even without objection, of the demand notes that were executed by defendant on May 6, 1929, the time the alleged false statement was made for the purpose of procuring an...

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