State v. Cooper

• Decision Date: 17 March 1915
• Docket Number: No. 29679.,29679.
• Citation: 169 Iowa 571,151 N.W. 835
• Parties: STATE v. COOPER.
• Court: Iowa Supreme Court

169 Iowa 571

151 N.W. 835

STATE

v.COOPER.

No. 29679.

Supreme Court of Iowa.

March 17, 1915.

Appeal from District Court, Scott County; M. F. Donegan, Judge.

Defendant was convicted of the crime of obtaining money by false pretenses, and appeals. Modified and affirmed.

Deemer, C. J., and Preston, J., dissenting in part.W. H. Petersen, Scott & Scott, and Chezem & Kelly, all of Davenport, for appellant.

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

PRESTON, J.

1. Appellant has made 30 assignments of error. They may be grouped as follows: Error of the court in overruling the defendant's motion for new trial and in arrest of judgment, because the verdict is not supported by the evidence and is contrary to the instructions; that the indictment is defective; misconduct of the prosecuting attorneyin the closing argument; refusal of the court to impanel a jury on the question of the defendant's sanity, which was demanded after verdict and when sentence was pronounced; error in the instructions given and in refusing to give instructions asked; and some other minor matters which will be referred to.

[1] It appears, without any conflict in the evidence, that between 8 and 9 o'clock in the forenoon of June 10, 1913, defendant went into the place of business of one C. P. Fetterer in Davenport. Defendant asked Fetterer if he would cash a check for defendant, and, as the witness states it:

“I replied to that: ‘Yes, sir; yes, I will cash your check, if you have money in the bank.’ He said: ‘Sure I have.’ Then I said: ‘In this bank on this check?’ I had the check then. Mr. Cooper had given it to me. After he handed the check to me, I asked him if he had money in the bank. I took the check, and looked at it, and looked at the other side, turning it over, and then I says: ‘Have you got any real cash for the check? Have you money in the bank?’ And he says: ‘Yes.’ I pointed out the name of the bank on the check, and asked him if he had money in this bank, and he said ‘Yes' to that. Then I cashed the check.”

Witness testifies that he believed his statement, and on cross-examination says he had confidence in defendant. Later in the forenoon of the same day the witness presented the check to the bank upon which it was drawn, and payment was refused. The check was dated June 11, 1913, but this witness testifies that he did not notice the date, and did not know it was dated the 11th. The witness then went to defendant's office and informed him that he had been to the bank and payment had been refused. Defendant took the check and looked at it, and said that it was not due.

One O'Neal, an attorney who had an office with defendant, told the witness that he would have the money down at the bank at 9 o'clock the next morning. Between 10 and 11 o'clock the next forenoon, witness went to the bank, and payment of the check was again refused.

Witness Tellcamp, an employé of Fetterer in his saloon, was also present at the time the check was cashed, and, while he did not hear all the conversation, he testifies that he did hear Fetterer inquire of defendant whether he had money in the bank named in the check, and heard defendant say that he had.

Witness Bruning, employed in the bank in question, testifies that defendant did not have an account at the bank on the 10th or 11th of June, 1913, and that he never had an account there at any time. He testifies that O'Neal came to the bank about 4 o'clock in the afternoon, after the bank had closed, and by the back door, and wanted to pay the check, and was informed that the check was not there. Bruning thinks this last named transaction was on the 11th of June, but O'Neal himself testifies that it was on the 12th, and that it was after the matter had been placed in the hands of the county attorney and an information filed against the defendant, or at least prepared.

Witness O'Neal, testifying for the defendant, testifies to the visit of Fetterer to defendant's office on June 10th, and that he called Fetterer's attention to the fact that the check would be taken care of. He testifies that he went to Fetterer's place of business between 2 and 3 o'clock on June 12th and wanted to take up the check, but was informed by Fetterer that he did not have the check; that it was in the county attorney's office. O'Neal says that, being unable to make any arrangement in the way of a settlement, he left, and that after that, on the 12th of June, he went to the bank; that when he went to the bank he offered to open an account, and stated that he wanted to take up the check, and was informed by the bank that they did not have the check. He says he placed the money on the counter. He says the bank did not exactly refuse to let him open an account, and he did not do so, and did not leave the money; that he intended to deposit the $20 he had with him in the name of Cooper; that he intended to open an account in Cooper's name, but did not do it, and that it was Cooper's money; that on the 12th of June, just before he went to the bank, he went to the county attorney's office and tried to settle the matter there; that this was about 3 o'clock in the afternoon of the 12th, and it was at that time that he saw papers in the office, and inferred from the conversation that the information had been prepared.

The defendant himself testified as a witness, and testified that he cashed the check at Fetterer's place on June 10th; that the amount of the check was $13; identified Exhibit 1, which had been offered in evidence, as the check; that the name on the check was his name and his signature; says he cashed the check with the intention that an ordinary man has that cashes a check, to pay it off; that he did not have any intention to defraud Mr. Fetterer out of that amount of money, or any other amount; that such an accusation is perfectly insane; and that such a thought as that would be insane.

An attempt was made on cross-examination of Fetterer to get him to say that at the time the check was cashed the defendant asked him if he would take a chance on him, or on cashing the check; but the witness denied that such language was used, and there is no other evidence in the case on that subject.

We have stated the substance of all the testimony. The verdict of the jury has abundant support in the testimony; in fact, in our opinion there can be no question as to the defendant's guilt. There is no denial of the testimony of the two witnesses who heard the statements made at the time the check was cashed. It is true the defendant testified that he did not intend to defraud, and it may be said there was a conflict as to this; but, from all the facts and circumstances,the jury were amply justified in finding that he did intend to defraud, and that the matter of attempted settlement or payment of the check occurred after the crime was complete, and after the prosecution had been commenced. This disposes of the assignments of error in regard to the sufficiency of the evidence.

This is not a question of a person overdrawing his bank account by mistake, or believing the check would be paid, even though overdrawn. This defendant never had an account at this bank, and there is nothing to show that he expected the bank would pay it. The evidence was to the effect that defendant represented that he had money in this bank. It is unnecessary to determine whether the mere giving of the check alone was of itself a false representation, though it has been held that a false pretense or representation may be made by an act, as well as by word, and that a person giving a check where there are no funds to meet it, knowing it will not be paid, is sufficient to constitute a representation.

[2] We are unable to see how the fact that the check was dated ahead one day is material under the facts of this case. As already stated, defendant did not have money at the bank, either on the 10th or the 11th, or at any other time, and there is nothing to show that he expected the bank would pay it. The representation was that at the time the check was cashed he had the money in the bank, not that he would have at a future date. Defendant did not, at the time the representation was made, promise to pay the check at his office, nor was there any statement that he might not have money enough in the bank to pay the check. Dating it ahead was not a mere promise, and the jury may well have found that the whole transaction was a device to cheat. The decision is based upon the fact that false representations were made when the check was delivered.

[3] 2. It is alleged that the indictment is defective. When arraigned, the defendant pleaded not guilty. There was no demurrer or other attack upon the indictment until after the trial, when it was sought to raise the question as to the sufficiency of the indictment by motion in arrest of judgment. The assignment of error is that the indictment does not substantially conform to the requirements of the Code, in that it is defective in manner and form, as set out in the first ground of the motion in arrest of judgment. The particular grounds stated in the motion in arrest are that it fails to charge that Fetterer parted with any money relying upon false representation, and because the indictment fails to set out the alleged false pretenses particularly, as required by law. The indictment charges, as to these two matters, that the defendant did unlawfully, feloniously, designedly, by means of false pretenses, and with intent to defraud, obtain from C. P. Fetterer, and of the property of C. P. Fetterer, $13 lawful money, etc.; and as to the second supposed defect the indictment charges that the money was obtained by unlawfully, feloniously, designedly, by means of false pretenses, and with intent to defraud, represent that he had money in the Davenport Savings Bank, and presented to said Fetterer as being worth its face value, and that it would be paid, a certain check which is copied...