State v. Devot

• Decision Date: 07 December 1925
• Docket Number: 4325
• Citation: 66 Utah 319,242 P. 395
• Court: Utah Supreme Court
• Parties: STATE v. DEVOT

242 P. 395

66 Utah 319

STATE v. DEVOT

No. 4325

Supreme Court of Utah

December 7, 1925

Appeal from District Court, First District, Cache County; M. C Harris, Judge.

Charles Devot was convicted of obtaining money by fraud, and he appeals.

AFFIRMED.

Fonnesbeck & Nelson, of Logan, for appellant.

Harvey H. Cluff, Atty. Gen., and L. W. Miner, Asst. Atty. Gen., for the State.

THURMAN J. GIDEON, C. J., and FRICK and CHERRY, JJ., concur. STRAUP J. dissenting.

OPINION

THURMAN, J.

The defendant was convicted by the verdict of a jury in the district court of Cache county of the crime of obtaining money by fraud and sentenced to serve an indeterminate term in the state prison.

The material evidence in the case was stipulated by the parties and set forth in the bill of exceptions. The following facts are not in dispute: On the 28th day of July, 1925, one C. M. Hammond, at Logan, Cache county, Utah, received a telegram by Western Union Telegraph Company purporting to come from his son, Joseph Hammond, at Los Angeles, Cal., requesting the said C. M. Hammond to telegraph him at Los Angeles the sum of $ 142. Pursuant to said request the said C. M. Hammond immediately deposited the sum requested in the office of the said telegraph company at Logan, with directions that the said amount be delivered to Joseph Hammond in Los Angeles. Identification was expressly waived. It appears from the evidence of C. M. Hammond that after depositing the money and returning to his home he had some doubts as to the genuineness of the telegram he had received, but "decided to let it go." A few days later another telegram purporting to be from Joseph Hammond at Los Angeles was received by C. M. Hammond at Logan making a further request for money. The matter was then referred to the sheriff of Cache county, resulting in the arrest of the defendant at Los Angeles. Defendant waived extradition and came to Utah in charge of the officers.

The defendant, testifying in his own behalf, admitted receiving the money in Los Angeles, but disclaimed sending the telegram to C. M. Hammond. His explanation of the transaction was to the effect that he became acquainted with a person in Los Angeles representing himself to be Joseph Hammond; that said person informed him that money had been telegraphed him by his father and that the telegraph company had refused to deliver the money to him because he was under the influence of liquor when he applied for it; that inasmuch as there had been a change of shift in the telegraph office the said person claiming to be Joseph Hammond requested the defendant to assume his name and make application for the money; that he did as requested and obtained a draft for the sum of $ 142; that he delivered the draft to the supposed Joseph Hammond, who was waiting down the street about a half block away; that the next day he saw the supposed Joseph Hammond and was informed by him that he had been unable to cash the draft, for the reason that the bank required identification by some one who had money in the bank; that he then requested defendant to go into the telegraph office where he had received the draft and get it cashed; that defendant did so and received the money, which he thereafter delivered to the supposed Joseph Hammond; that defendant received no consideration other than the use of a room which the supposed Joseph Hammond had paid for in advance and a loan from him of $ 4 or $ 5.

The defendant further testified that he believed that said person was in truth and in fact the son of C. M. Hammond, as he represented himself to be, and was entitled to receive the money; that defendant did not know there was any fraud in connection with the draft or in receiving the money; that when he procured the draft to be cashed he indorsed it in the name of Joseph Hammond; that on the next day the said supposed Joseph Hammond informed him that there was some more money for him at the telegraph office, and stated that since defendant was known there as Joseph Hammond "he better go and get this money also"; that defendant went to the office and asked if there was more money for Joseph Hammond, and was thereupon arrested; that he then, with the officers, went to the place where he expected to find the supposed Joseph Hammond, but he had disappeared.

A Los Angeles detective testifying for the state, after identifying defendant as the person arrested in Los Angeles charged with the offense on trail, said that while in jail in Los Angeles the defendant admitted to him that he knew the man posing as Joseph Hammond was a fraud, and that it was a crooked game, but that he (defendant) "was short of money and decided he would go in with the other party with the understanding that the other was to give him a portion of a split of the proceeds."

It is stipulated in the bill of exceptions that the appeal is not made on the ground that the evidence is insufficient to support the verdict, but on the ground that the court has no jurisdiction of the defendant. The bill also shows that the defendant duly excepted to the refusal of the court to give his requested instructions Nos. 1 and 4. It was further stipulated that the real Joseph Hammond did not send the telegram in question or receive the money. Several exhibits are referred to by letter in the bill of exceptions, but they were not made part of the record on appeal, and are therefore not before the court. Defendant's request No. 1, to the refusal of which defendant excepted, was a peremptory instruction to find the defendant not guilty. Request No. 4 reads as follows:

"You are instructed that if you believe from the evidence that the money, if any, was delivered to, and received by, the defendant in Los Angeles, Cal., then you are instructed that this court is without jurisdiction, and your verdict should be, for the defendant, not guilty."

The refusal to give the request just quoted and defendant'sexception thereto, as we interpret the stipulation, presents the only issue to be determined on this appeal. Assuming that the evidence is sufficient to support the verdict, if the court had jurisdiction, we now proceed to a consideration of the question involved.

Appellant's contention is that as the undisputed evidence shows that the defendant received the money at Los Angeles, and that that is where the money was obtained, therefore the offense of obtaining money by fraud, if any offense was committed, occurred outside the state of Utah; that defendant could not be charged with obtaining money in Logan unless the telegraph company was his agent to receive the money. Appellant vigorously contends, as matter of law, that the telegraph company was not the agent of defendant. On the other hand, respondent insists that the telegraph company was the defendant's agent, and upon this single issue, in the last analysis, the lines of battle are drawn.

It will be remembered that C. M. Hammond, at Logan, Utah, telegraphed the money at that point to the supposed Joseph Hammond at Los Angeles, at his request; that the defendant in this case admitted to the detective, at Los Angeles, that he knew the supposed Joseph Hammond was a fraud; that it was a crooked game; but that being short of money he decided to go in with the other person on the understanding that he was to have a split of the proceeds.

The jury was warranted in finding that defendant was in the "game" from the beginning. In fact, under all the circumstances, the jury was warranted in finding that the defendant, alone, either sent or authorized the sending of the telegram by which the fraud was consummated and the money obtained.

Appellant refers us to numerous cases holding that the offense of obtaining money by fraud, or under false pretenses, is triable only in the jurisdiction where the money was obtained, and quotes from 16 C. J. title "Criminal Law," § 273, the following:

"The general rule is that the crime of obtaining money or property by false pretenses is completed where the money or property is obtained, and that, if the pretenses are made within one jurisdiction and the property or money is obtained in another, the person making the representations must be indicted in the latter jurisdiction."

See, also, the following cases relied on by appellant: Graham v. People, 181 Ill. 477, 55 N.E. 179, 47 L. R. A. 731, State v. House, 55 Iowa 466, 8 N.W. 307; State v. McGinnis, 71 Iowa 685, 33 N.W. 338; state v. Smith, 162 Iowa 336, 144 N.W. 32, 49 L. R. A. (N. S.) 834; Stewart v. Jessup, 51 Ind. 413, 19 Am. Rep. 739; Com. v. Van Tuyl, 1 Metc. (Ky.) 1, 71 Am. Dec. 455; Connor v. State, 29 Fla. 455, 10 So. 891, 30 Am. St. Rep. 126; People v. Cummings, 123 Cal. 269, 55 P. 898; Bates v. State, 124 Wis. 612, 103 N.W. 251, 4 Ann. Cas. 365 and note; Burton v. U. S., 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482.

These cases do not go to the meat of the question presented here. The rule therein stated may well be conceded. The question here, however, is, "Where was the money obtained?" If the telegraph company was the agent of the defendant to receive the money then, under the undisputed evidence, the defendant received the money in Logan. This, in our opinion, is a sensible rule, well supported by both reason and authority.

Immediately following the passage quoted by appellant from C. J., supra, the rule is stated as follows:

"Where, induced by false pretenses, one transmits by mail to defendant money, drafts, or other writings, such mailing is a delivery to the postmaster as the agent of defendant, to be forwarded to him, and the offense is committed where the letter is mailed, and is indictable at such place. Where the false pretenses are made in one jurisdiction, and in reliance on such pretenses goods are delivered to a...