State v. Detloff
| Decision Date | 27 October 1925 |
| Docket Number | 36891 |
| Citation | 205 N.W. 534,201 Iowa 159 |
| Parties | STATE OF IOWA, Appellee, v. EDWARD DETLOFF, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED JANUARY 14, 1926.
Appeal from Sioux District Court.--WILLIAM HUTCHINSON, Judge.
THE defendant was indicted for obtaining money by false pretenses. From judgment following a verdict of guilty, he appeals.
Affirmed.
T. M Zink, for appellant.
Ben J Gibson, Attorney-general, and B. J. Flick, Special Counsel, for appellee.
The indictment charged, in substance, that the defendant, in Sioux County, on September 29, 1923, by the false pretense that his unsecured indebtedness was from $ 8,000 to $ 12,000, and not to exceed $ 12,000, which was false and so known to him, obtained from the Sioux County Savings Bank the sum of $ 4,000.
The evidence on behalf of the State tended to establish the following facts: That, in April, 1922, the appellant procured a loan of $ 1,500 from the Sioux County Savings Bank, and at that time signed and delivered to the cashier a written property statement and application for the loan, in which it was stated that he then owed the bank no unsecured debt, and that "my unsecured debts to others do not amount to more than $ 8,000;" that, in August, 1922, appellant borrowed another $ 1,500 of the bank, and at that time stated that there was no material change in his financial condition; that, on September 29, 1923, appellant applied for another loan, and at that time the cashier went over with appellant the property statement previously given by him, item by item, and the latter said there was no change in his condition, except that his unsecured indebtedness was less than shown in the statement; that, relying on the statement so made, the cashier loaned appellant $ 4,000 of the bank's funds, taking his note therefor, and gave to appellant a draft or check of that date for $ 4,000, drawn by the Sioux County Savings Bank on the Toy National Bank, of Sioux City, and payable to the appellant; that, on October 1, 1923, the check was paid to the appellant at Sioux City by the bank on which it was drawn, and the amount charged to the account of the Sioux County Savings Bank and paid from the funds of that bank. The appellant was, at the time of this transaction, indebted in an amount greatly in excess of $ 12,000 upon unsecured obligations.
The first two loans have been paid, and it is upon the last transaction of September 29th that the indictment is based.
Appellant assigns forty-four errors, but only the points upon which he relies in argument for a reversal will be considered.
I. It is insisted that the financial statement furnished the bank at the time of the first loan, applied only to the appellant's situation as of its date; that the bank had no right to rely upon it in making the loan in question some sixteen months later. This contention ignores the testimony of the cashier of the bank that, before making the latter loan, he and the appellant went over the statement, and appellant said there was then no change in his financial condition, except that his unsecured indebtedness was less than as shown by the statement. The false pretense alleged in the indictment was that appellant represented that his unsecured indebtedness was from $ 8,000 to $ 12,000, and not to exceed the latter sum. That this allegation would be sustained by proof that, as an inducement for the $ 4,000 loan, appellant stated that his unsecured indebtedness was less than shown by the prior written statement seems too plain for argument. But, if the written statement was not originally made for the purpose of defrauding the bank, its reiteration for that purpose would be sufficient. Clarke v. People, 64 Colo. 164 (171 P. 69).
II. It is further contended that the written statement made at the time of procuring the first loan was not a false pretense, within the meaning of the statute; that it stated on its face that it was for the purpose of obtaining credit. Again, this overlooks the fact that the evidence tended to show the making of a positive and false statement as to the amount of appellant's unsecured indebtedness at the time the loan in question was procured, which was entirely independent of the prior written statement, except for the reference to the amount of such indebtedness there shown.
The procuring of a loan of money by false pretenses where the lender does not expect the return of the identical money, but only its equivalent in value in other money, will constitute the offense. State v. Smith, 162 Iowa 336, 144 N.W. 32; Tingue v. State, 90 Ohio St. 368 (108 N.E. 222); People v. Oscar, 105 Mich. 704 (63 N.W. 971); State v. Ashe, 44 Kan. 84 (24 P. 72). It was held in State v. McBrien, 265 Mo. 594 (178 S.W. 489), that an indictment alleging that the defendant procured a loan of money from a bank by false representations as to the amount of his property and indebtedness charged the offense of obtaining money by false pretenses.
III. Complaint is made that the financial statement made at the time the first loan was procured, was not set out, described, or referred to in the indictment. The same misapprehension on the part of appellant appears here. The State was not relying on the written statement itself, but on the alleged verbal representation as to the appellant's indebtedness at the time the loan was made. But see State v. Henderson, 135 Iowa 499, 113 N.W. 328. The alleged false pretense was sufficiently set out.
IV. With respect to the fact that the indictment charged that appellant obtained $ 4,000 in money from the bank, while the evidence showed that he received from the bank a draft or check on a bank in Sioux City for that amount, which he cashed at Sioux City, Woodbury County, appellant makes two contentions: First, that the evidence shows that the crime was committed in Woodbury County, where appellant cashed the draft and received the money, and hence the Sioux County district court had no jurisdiction; second, that there was a fatal variance between the allegations of the indictment and the proof.
Both of these questions have been settled adversely to the contention of appellant by prior decisions of this court. In the case of State v. Gibson, 132 Iowa 53, 106 N.W. 270, the defendant was charged in Polk County with obtaining money by false pretenses. The evidence showed that the defendant forwarded from Chickasaw County pretended applications for insurance to an insurance association in Polk County, and received in Chickasaw County from the association a check drawn on a bank in Polk County. This check the defendant indorsed, and it was cashed by a bank in Chickasaw County. Through the agency of the latter bank, the check reached the bank in Polk County on which it was drawn, and was there paid, and the amount charged to the account of the insurance association. It was held that, by virtue of the statute providing that, "when a public offense is committed partly in one county and partly in another, or when the acts or effects constituting or requisite to the consummation of the offense occur in two or more counties, jurisdiction is in either county" (Section 13451, Code of 1924), the court of Polk County had jurisdiction.
A somewhat similar situation was under consideration in State v. Smith, 162 Iowa 336, 144 N.W. 32. There the defendant, indicted in Polk County, claimed that jurisdiction was in Cass County, where the check obtained by false pretenses was ultimately paid by the bank upon which it was drawn. In commenting on the Gibson case, we observed that it was not there decided that the jurisdiction was in Polk County alone, and further:
Appellant insists that, where jurisdiction is claimed because the crime was committed partly in the county, it must be so stated in the indictment. The statute does not so provide. And see, as bearing somewhat on the proposition, State v. Pugsley, 75 Iowa 742, 38 N.W. 498, and State v. Daily, 113 Iowa 362, 85 N.W. 629.
V. With respect to the question of variance, we have heretofore, in the Gibson case, recognized that there is a conflict of authority. In the instant case, there can be no doubt but that the actual cash was received by the appellant when he personally received payment of the amount of the check or draft at Sioux City from the bank on which it was drawn; so that there is no question here of the agency of an intermediate bank where the check was deposited,--a question that has been considered by some courts as controlling. People v. Dimick, 107 N.Y. 13 (14 N.E. 178). In the Gibson case, after adverting to the conflict in the adjudicated cases, and suggesting that the intermediate bank in which the defendant had deposited the check was to be considered his agent for the purpose of collecting it, and that the money was received by the defendant when the check was cashed by the bank upon which it was drawn, we said:
"But, however this may be, there was no variance under any of the cases to which our attention has been called, for the reason that defendant did in fact receive money from the plaintiff [the party defrauded]; the check simply being an instrument through which the money was received."
This reasoning and this conclusion find ample support in the following cases, among others that might be cited: People v. Leavens, 12 Cal.App. 178 (106 P. 1103); People v Whalen, 154 Cal. 472 (98 P. 194); Hunt v. State, 72 Ark. 241 (79 S.W. 769, 65 L.R.A. 71); State v. Palmer, 40 Kan. 474 (20 P. 270); People v....
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