State v. Cary
| Decision Date | 19 February 1915 |
| Docket Number | 19,057 - (14) |
| Parties | STATE v. FRANCIS C. CARY |
| Court | Minnesota Supreme Court |
Francis C. Cary, with others, was indicted by the grand jury tried in the district court for Clay county before Parsons J., and a jury, and convicted of the crime of grand larceny in the first degree. From an order denying defendant's motion for a new trial, he appealed. Reversed.
Grand larceny -- evidence -- variance.
1. When an indictment alleges grand larceny in the first degree committed by obtaining "current and genuine money" by fraudulent representations, and the evidence shows that the one defrauded drew a draft on a Missouri bank in favor of a Minnesota bank, and the latter bank honored it and was ready to pay the money to the defendant and he requested two drafts and a deposit credit, there is no fatal variance.
Grand larceny -- intent to defraud.
2. The evidence is insufficient to sustain a conviction of obtaining money by false representations as to the ownership of property with intent to cheat and defraud.
Leonard Eriksson, for appellant.
Lyndon A. Smith, Attorney General, John C. Nethaway, Assistant Attorney General, and Christian G. Dosland, County Attorney, for respondent.
The defendants Francis C. Cary, J. W. Bernardy and O. E. Linderson were indicted in Clay county for grand larceny in the first degree committed by obtaining money by fraudulent representations. Upon a separate trial of Cary he was convicted. He appeals from the order denying his motion for a new trial.
1. The charge in the indictment is that on January 20, 1914, the defendants falsely and fraudulently represented to the J.L. Price Brokerage Co., a corporation, of St. Joseph, Missouri, with intent to cheat and defraud it, that Bernardy was the owner of 13,000 bushels of potatoes in the warehouse at Barnesville; and that by such representations they induced him to purchase 8,250 bushels of potatoes for which he then paid $5,512.50. The indictment alleges that the brokerage company, by reason of the false representations stated, paid to the defendants "the sum of $5,512.50 lawful current and genuine money of the United States of America." No money was actually paid. What was done was this: The brokerage company, through J. L. Price, its principal officer, who was at the time at Barnesville, drew a draft in favor of the Citizens State Bank of Barnesville on the bank of Buchanan County, Missouri. The citizens bank, upon telegraphic authorization from the Missouri bank, honored the draft. Price and the defendant Cary went to the bank to get the proceeds. The cashier asked how they wanted the money. Cary requested one draft for $4,000, another for $1,000, and asked that the balance be deposited to the credit of the Minnesota & Dakota Potato Co. of which Bernardy was in control. The bank gave Minneapolis drafts, which were paid in due course, and made the credit as requested. It is clear that the money would have been paid Cary by the bank. It was his choice that payment be made otherwise. It is now urged, and it was contended at the trial, that the proof varied from the indictment. There is no suggestion that the defendant was misled or prejudiced. To hold a fatal variance under these circumstances is but another application of a technicality, protecting no right of the accused, but tending to obstruct the administration of justice. We hold that there was not a fatal variance. The case of People v. Dimick, 107 N.Y. 13, 14 N.E. 178, gives some support to our holding.
2. In the fall of 1913 the brokerage company purchased of the Red River Potato Growers Association 8,250 bushels of potatoes for future delivery for the sum of $7,012.50, advancing $1,500 and leaving balance of $5,512.50 to be paid. In January, 1914, trouble arose and Price, representing the brokerage company, came to Barnesville. He met Cary and Bernardy. His claim, sufficiently supported by the evidence is that they represented to him that Bernardy owned something like 13,000 bushels of potatoes in the warehouse; and that if he would pay $5,512.50 in cash, the amount which he was still owing for his potatoes, and would assign his claim of $1,500 against the association, Bernardy would deliver to him 8,250 bushels of potatoes, the amount of his original purchase. Price took counsel with his attorney, Mr. Hanson of Barnesville, and the sale was made. Price paid the $5,512.50 in the way indicated. Bernardy gave a bill of sale to the brokerage company, executed and delivered it a warehouse receipt, entered into a written contract in which he agreed to deliver the potatoes, and at the suggestion of Mr. Hanson, who was conversant with local...
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