State v. Chambers

• Decision Date: 19 February 1917
• Docket Number: No. 31470.,31470.
• Citation: 179 Iowa 436,161 N.W. 470
• Parties: STATE v. CHAMBERS.
• Court: Iowa Supreme Court

179 Iowa 436

161 N.W. 470

STATE

v.CHAMBERS.

No. 31470.

Supreme Court of Iowa.

Feb. 19, 1917.

Appeal from District Court, Boone County; E. M. McCall, Judge.

Defendant appeals from a conviction on an indictment charging him with having obtained money from Boone county under false pretenses, whereby said county was defrauded and cheated to the amount of $94.70. Reversed and remanded.Goodykoontz & Mahoney, of Boone, for appellant.

Geo. Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

SALINGER, J.

[1] I. A motion to direct verdict for defendant was made at the close of the evidence for the state, and was not renewed after the evidence for both sides was closed. Hence we cannot review whether the motion was rightly overruled.

[2] This does not preclude complaint that the verdict is contrary to and not supported by the evidence and the result of passion and prejudice. Such is made, but we think not well founded. This disposes of the claims that, as matter of law, there was no intent to defraud, no fraud committed, that the bill presented for allowance did not constitute making the false pretenses charged, and that defendant did not intend to make the representations or pretenses charged.

As we understand, there is no claim that there was insufficient evidence to send reliance to the jury, and not disputed that if a representation was made, it was made to the board of supervisors.

1a. As we understand it, it is not disputed that defendant obtained the amount he made claim for. Therefore we are at some loss to understand the relevancy of In re Cameron, 44 Kan. 64, 24 Pac. 90, 21 Am. St. Rep. 262, that if defendant is entitled to the immediate possession of the property which he obtains by false pretense, he cannot be convicted; and of State v. Moore, 15 Iowa, 412, and Mikell, Cas. Crim. Law, 846, that obtaining what is the equivalent of an indorsement of credit on an evidence of indebtedness is not within the statute.

[3] 1b. By instruction F offered defendant contends, as we understand him, that in no event could he have obtained more than was due for the services of his employés, because the allowance of a sum to pay these assistants was the act of a body that had the sole power to fix their compensation, and that the very act of allowing settled, therefore, that the sum allowed was justly due and owing. Assuming fraud effected is a material element, and, saying nothing of it that this is at bitter variance with another theory of the defendant, most strenuously urged, to wit, that he is a private employer with private employés, we have to say we do not agree to the contention. If the other elements of the crime are proved, an allowance into which the board was cheated cannot well cancel the fraud that induced the allowance. Related is the argument that if the allowance fixed the compensation of the assistants, then the county may not complain because the assistants allowed another to receive part of what they got. This begs the question, and assumes that the allowance has the effect which we find it cannot have.

[4] 1c. Relying upon 19 Cyc. 398, 399, and People v. King, 19 Misc. Rep. 98, 43 N. Y. Supp. 975, defendant contends that, even if he falsely made the representation charged, to wit, that he had paid a stated sum for the services of named assistants, and the services were not worth what was charged for them, it was at most a false representation as to the value of services, which is a mere matter of opinion. We think a representation that one has paid an employé a stated sum for a stated purpose is not a mere opinion as to what the services of employés were worth, but a representation of fact concerning the amount they had been paid.

[5] 1d. Complaint is made that an attorney for the state was guilty of misconduct in argument. The contention is disposed of by the fact that no argument is found in the record.

[6] 1e. We cannot agree that the imposition of a fine of $500 was in such sense an excessive punishment as that we may interfere with the discretion vested in the trial court in the premises.

[7] 1f. Instruction 1 1/2 is complained of because it told the jury what the penalty was for the offense charged, and, further, that the method of punishment did not concern the jury, but was matter for the judgment and discretion of the court. The main objection is this was misleading and erroneous, and calculated to induce the jury to return a verdict of guilty on the supposition that the minimum penalty will be imposed, and that describing the punishment has been disapproved by the Supreme Court. The exceptions are not well taken.

[8] II. The exceptions to instruction I are not well taken (1) because they complain of matter that is neither contained in nor effectuated by the instruction; (2) because the instruction, being merely a statement of what the indictment is, should not declare what are the elements of the offense charged, nor what the law deems the gist of that offense.

[9][10] 2a. The refusal to give instructions G and N needs no attention beyond saying that all they urge was given in instruction 5 3/4. Moreover, N is predicated on necessity created by the closing argument for the state, and the argument is not in the record.

2b. Instruction 5 3/4, if subject to objection, was not excepted to in regard to matters now complained of, and the exceptions that were taken are not well taken.

2c. Instructions 2, 3, and 5 have been carefully considered with reference to the exceptions lodged against them, and we find that these exceptions are not tenable. It will profit no one to say more on this.

The same is true of the claim that instruction 5 and instruction 5 1/2 each, or together, are in conflict with instruction 4.

[11] III. Over objection by defendant, the court received evidence that defendant had been appointed highway engineer. Defendant claims that this, and some of the instructions, erroneously caused him to be tried for official misconduct, though he was not a public officer, that this constitutes a variance between indictment and proof, and that it made his conviction possible when a private person could not have been convicted. This has brought on an elaborate and vigorous dispute over whether defendant is a public officer. The argument presents whether certain statute law claimed to control was in existence at the time defendant did what is complained of. It presents many book definitions of “officer,” and quite a number of authorities from other jurisdictions which declare who is or is not a public officer. In some, the fact that the functionary under consideration is such officer is self-evident. In others, the contrary is as clear. Some disprove the claim of the party who cites them. We think all this is an immaterial controversy.

It is clear defendant does not complain that any wrong was done if he be a public officer, but of having been erroneously forced into the position of being one. If he may not complain of error, if any there be, in dealing with him as an officer, then he is in no position to complain of what consequences naturally followed being so dealt with. We think the record shows he invited what was done. Let us assume that the instructions given and testimony taken despite objection do work that defendant is treated as a public officer. But did not defendant invite and sanction this, notwithstanding exceptions by him taken? He testified voluntarily: “I remember the occasion of my being appointed highway engineer; it was in the spring of 1913.” He testified, further, that when he presented his bill to the county he did not consider that he was a county engineer in the year 1913; that he did not think he was an officer. How can he be heard to say now that whether he was an officer was an immaterial matter, was irrelevant to the inquiry, and a variance of the indictment? He put into evidence that he had been appointed engineer. Why, if he was insisting that he was a private employé or employer? He offered an instruction that he was entitled to be paid for a day if he did any work on a day. Under the law that is something which none but officers may have. In two other instructions he desired the jury to be told they might take into consideration that defendant in good faith believed he was not an officer. Such a request recognizes that whether he was an officer was material and a proper inquiry relevant to the indictment, and asserts that though he be, the fact is avoided if, notwithstanding, he had an honest belief he was not such officer. What defendant desires is to avoid without confessing, have the court tell the jury what will excuse him, though an officer, and then complain that the question of his being an officer got into the case. It is not permitted him to urge here that there was error in dealing with him as being a public officer. He will, however, suffer little by reason of this, because the state is willing he shall have the same hearing as if it were conceded that he is not an officer. And we treat his assignments as made on the appeal of a private person.

Division II.

[12] I. Citations and what their investigation leads to has engaged us in an analysis of a number of our own decisions and of 107 cases from 62 jurisdictions other than Iowa, and the analysis merely demonstrates that specific intent is an element in some prosecutions, and not in others. They range from selling or adulterating intoxicating liquors and milk to harboring slaves, and from bigamy to the sale of naphtha. One merely holds that the statute against cheating by false pretense does not except infants. Moore v. State, 31 Tex. Cr. R. 234, 20 S. W. 563, has no bearing on anything involved here. The ultimate demonstration is that whether specific intent need be proved depends upon statute, and that under our statute such intent is an essential element, and therefore there can be no conviction without proof of intent to defraud. That must be agreed to,...