State v. Briggs

• Decision Date: 06 July 1906
• Docket Number: 14,762
• Citation: 74 Kan. 377,86 P. 447
• Parties: THE STATE OF KANSAS v. B. F. BRIGGS
• Court: Kansas Supreme Court

86 P. 447

74 Kan. 377

THE STATE OF KANSAS v. B. F. BRIGGS

No. 14,762

Supreme Court of Kansas

July 6, 1906

Decided July, 1906.

Appeal from Crawford district court; ARTHUR FULLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Obtaining Money by False Pretenses--Information. An information which charged that the defendant obtained a draft for money as a commission for a loan on a farm by the false and fraudulent pretenses that he was an agent engaged in loaning money on farms, and that he had much property and was financially responsible, and had a large amount of money under his control, was not bad because it failed to state whether the application of the borrower for the loan was oral or written; and no error was committed in denying a motion to make the information more definite and certain in that respect.

2. CRIMINAL LAW--Representation Amounting to a False Pretense. A representation that a person is in a business or situation in which he is not, made for the purpose of defrauding another, and by which money or property is fraudulently obtained, is a false pretense.

3. CRIMINAL LAW--Coupling Future Promise with a False Pretense. The coupling of a future promise with a false pretense does not relieve the false pretense of its criminal character.

4. CRIMINAL LAW--Evidence--Knowledge of Falsity and Guilty Intent. Testimony that the defendant had made similar false representations and pretenses to others is admissible to show his knowledge of the falsity of the representations made in the present case and his guilty intent in making them.

C. C. Coleman, attorney-general, and John M. Wayde, for The State.

E. C. Clark, for appellant.

JOHNSTON C. J. All the Justices concurring.

OPINION

JOHNSTON, C. J.

B. F. Briggs was convicted of obtaining money from Henry Mattox by means of false and fraudulent pretenses. In the information it was charged, in substance, that Briggs represented that he was a loan agent, engaged in loaning money on real estate; that he was financially responsible and worth from $ 45,000 to $ 60,000; that he had under his control $ 500,000 to loan upon farms, and that he would make Mattox a loan of $ 3000 on his farm, at an interest rate of five per cent. and a commission of $ 120, one-half of which was to be paid at once and the balance when the loan was completed; and that, relying on these representations, Mattox contracted for the loan and sent Briggs a draft for $ 60, the value of which was realized by Briggs. It was alleged that the representations were false and fraudulent; that Briggs had no money to loan and was not engaged in making loans on farms; that he had neither money nor credit, but was wholly insolvent; and that he never intended to effect a loan, but made the false and fraudulent representations with the intent to cheat and defraud Mattox out of the draft and the $ 60 obtained upon it. By motions to make definite and certain and to quash appellant challenged the sufficiency of the information.

The motion to make an information definite and certain is an anomaly in criminal procedure. Ordinarily an indictment or information which fails to particularize or lacks in fullness of statement is open to attack by a motion to quash. Courts sometimes require specification of particular things in what is known as a bill of particulars, but the making of such an order is largely within the discretion of the trial court. (Hughes, Crim. Law & Proc. § 2879; 1 Bishop's New Crim. Proc. § 643.) If the motion to make definite and certain were permissible, or should be treated as a motion for a bill of particulars, the court would not have been justified in allowing it. The supposed defect is that the information did not disclose whether the application of Mattox for a loan of money was in writing or only an oral one. The application was a mere incident in the transaction, and so far as the offense is concerned it is wholly immaterial whether it was written or oral. (The State v. Baker, 57 Kan. 541, 46 P. 947.) It was not the basis of the false pretenses, and the money was not obtained by means of the application. The important features of the offense charged were the false representations, made with intent to defraud, and the obtaining of money by reason of them, and these matters were fully stated in the information. It is the things said and done by Briggs, and not by Mattox, which are material and which formed the basis of the offense charged in the information.

Upon the motion to quash it is contended that the representations alleged are not material, and are mere promises to be performed in the future. It is true, as contended, that a mere promise to do something in the future, however false, is not an offense. "The false pretense relied upon to constitute an offense under the statute must relate to a past event, or to some present existing fact, and not to something to happen in the future." (In re Snyder, Petitioner, &c., 17 Kan. 542, 556.) Although some of the representations were mere promises, others were of existing facts, and are material. It was alleged that Briggs represented himself to be a responsible agent, engaged in making loans on real estate and to the farmers of southeastern Kansas, whereas he was not so engaged, and was not making loans on real estate to farmers. A misrepresentation as to the business in which a person is engaged, made for the purpose of defrauding another, and by which money or property is obtained, is a false pretense. It is a false pretense where a man falsely represents himself to be in a situation or business in which he is not. (Higler v. People, 44 Mich. 299, 6 N.W. 664, 38 Am. Rep. 267; Taylor v. Commonwealth, 94 Ky. 281, 22 S.W. 217; Commonwealth v. Stevenson, 127 Mass. 446; Pearce v. The State, 115 Ala. 115, 22 So. 502; The People v. Dalton, 2 Wheel. Cr. Cas. [N.Y.] 161; Thomas v. The People, 34 N.Y. 351; Hughes, Crim. Law & Proc. § 596; 19 Cyc. 401.)

Then, there were the representations that appellant had a large amount of property and was in good financial standing, whereas it is alleged that he was absolutely insolvent. Added to these was the representation, which was also negatived, that he had $ 500,000 at his command and under his control. These representations were not mere promises, nor can they be regarded as immaterial. (19 Cyc. 398.) That there may have been connected with them future promises or other matters of less consequence does not relieve the false pretenses of their criminal character. It has already been determined that "the mere fact that a false pretense of an existing or past fact is accompanied by a future promise will not relieve the defendant or take the case out of the operation of the statute." (The State v. Gordon, 56 Kan. 64, 67, 42 P. 346.) It is not necessary to a conviction that the false pretenses should be the sole inducement to the obtaining of the money or property; it is enough if they have a controlling influence, although some minor considerations may concur. It was said in In re Snyder, Petitioner, &c., 17 Kan. 542:

"It is not necessary, to constitute the offense of obtaining goods by false pretenses, that the owner has been induced to part with his property solely and entirely by pretenses which are false; nor need the pretenses be the paramount cause of the delivery to the prisoner. It is sufficient if they are a part of the moving cause, and, without them, the defrauded party would not have parted with the property." (Syllabus.)

There is a contention that the...