State v. Dobbins

• Decision Date: 18 October 1911
• Citation: 132 N.W. 805,152 Iowa 632
• Parties: STATE v. DOBBINS.
• Court: Iowa Supreme Court

152 Iowa 632

132 N.W. 805

STATE

v.DOBBINS.

Supreme Court of Iowa.

Oct. 18, 1911.

Appeal from District Court, Pottawattamie County; W. R. Green, Judge.

The defendant appeals from a judgment of conviction on charge of larceny. Affirmed.Harl & Tinley, George S. Wright, E. J. Mulick, and W. E. Mitchell, for appellant.

George Cosson, Atty. Gen., H. W. Byers, John J. Hess, and John P. Organ, for the State.

WEAVER, J.

The indictment is in the ordinary short form, charging that on or about October 13, 1908, the defendant did willfully, unlawfully, and feloniously take, steal, and carry away $30,000 lawful money of the United States belonging to one T. W. Ballew. To this accusation the defendant entered a plea of not guilty.

It is the theory of the state that defendant, with several other persons, entered into a conspiracy to defraud whomsoever they might be able to deceive by means of pretended horse races, upon the result of which the victims of the deception were to be induced to stake or risk their money, and that, in pursuance of such conspirarcy, the said confederates did take from the complaining witness a large sum of money in a manner and by methods which in legal contemplation amounts to larceny. In support of this claim, a large amount of testimony was offered tending to show that defendant and another man known by the name of Martin approached Ballew, who was a person of considerable wealth and business experience, and represented to him that several “millionaires from Pittsburg, Pa.,” were traveling leisurely over the country promoting new railroads and buying bonds, and, as a means of diversion or relief from the burden of their business cares, they took with them in their journeying a race horse in order that they might have a “little fun once in a while.” Their wealth was such, Ballew was told, that they were indifferent to the losses they might sustain, and their confidence in the speed of their horse was so great they were willing to back him without limit. They were, however, of such eminently respectable and discreet character they would not bet their money with professional sports and gamblers, to which class defendant and Martin admittedly belonged, and, in order for the latter to obtain any wagers with these exclusive gentlemen, the transaction must be negotiated through some other person. Martin further represented that he had been to California, where he discovered and purchased a horse, which had been privately tried and tested and found to be a much better animal than the one owned by the “Pittsburg millionaires,” and, if a race could be arranged, it was an absolute certainty the latter animal could be beaten, and a large amount of money won from its owners. On this showing Ballew was urged to go to Council Bluffs and become a backer of the California horse. He was told he need not risk a dollar himself, and need only bet the money which would be furnished him by others, and for his services he would receive 10 per cent. of the winnings.

Defendant was an old acquaintance of Ballew, and vouched for the honesty and reliability of Martin. Ballew, after some urging, consented to play the part thus assigned him, and went with the parties to Council Bluffs, where the millionaires and their horse were said to be, and where arrangements had been made for a race. On arriving at Council Bluffs, Ballew was introduced to one Wilson, who was said to be the private secretary of the millionaires and brother–in–law of Martin. Wilson represented that his wealthy employers had not treated him fairly, and he was willing to help beat their horse in the race. To that end, he said he and Martin had privately raced the two horses together, and Martin's was by far the better and faster, and was certain to win. He asked Ballew if he had any money or drafts with him to exhibit if any question were raised as to his financial ability to take part in a game of these proportions, and thus secure large bets from the millionaires. Yielding to the request of the conspirators, Ballew obtained bankers checks or drafts to the amount of $30,000. By agreement with the millionaires, Wilson was selected as stakeholder, and at a meeting in a room in a hotel the betting began. Ballew was furnished a considerable sum of money by Martin with which he covered the wagers offered by the backers of the Pittsburg horse. At the close of the session, the bets aggregated many thousands of dollars. After adjournment, Ballew was told that the millionaires were still anxious to put up more money on the race, but Martin and his friends had exhausted their funds. In order to increase their bets and consequent harvest of winnings, they suggested that Ballew cash his checks and bet the money for them, and promised that, if he would do so, Wilson, the stakeholder, who was interested with them, would return it as soon as the betting was over, and before the race was pulled off. The scheme worked, Ballew obtained $30,000 in cash, and with it covered the wagers offered against the Martin horse. When the money was all in the stakeholder's hands, a pretended controversy arose between some of the alleged conspirators in regard to a claimed mistake in recording the bets, and a demand was made that the money be counted. This was objected to, but a “compromise” was agreed upon, by which the stakeholder swept all the money into a valise, where it was to be held until the race was over, and then all disputes were to be adjusted.

Proceeding to the race track, the horses were brought forth and a start made, from which the Martin horse took the lead. Before the course was completed, however, the rider of the Martin horse pretended to become suddenly ill, fell forward on the animal's neck, when the Pittsburg horse passed him, and came first under the wire. A simulated quarrel immediately arose between the “opposing” ranks of backers, in the midst of which an alarm was given that the police were coming, and all persons engaged in the deal were liable to be immediately arrested. Thereupon the crowd separated, the several members pretending to hasten out of the city. Wilson told Ballew that his money had been deposited in a safety vault, and that he would at once get it, and bring it to him at Kansas City, Mo., which, of course, he never did. It is also the theory of the state, and there is evidence tending to show, that the $30,000 thus fraudulently obtained from Ballew was divided between the conspirators; the defendant herein receiving $7,500 for his share of the spoils.

The foregoing outline of the evidence is by no means full or complete, but it is sufficient to indicate in a general way the nature of the case made by the state. The appellant, who offered no evidence in his own behalf, does not seriously contend that no crime of any kind is disclosed by the record, but plants his demand for a reversal of the judgment against him on the proposition: (1) That the crime, if any, thus shown, is not larceny; (2) that the evidence offered in support of the charge is not admissible under the allegations made in the indictment; (3) that the court erred to his prejudice in its rulings upon the admission of evidence; and (4) that the court erred to his prejudice in the instructions given to the jury and in refusing his requests for other instructions.

[1] 1. The contention that the offense, if any, shown by the evidence is not larceny, and therefore does not support the verdict and judgment in this case, presents the first important question urged in appellant's argument, and upon its decision many of the other propositions made in his behalf will necessarily turn. Stated in brief terms, the contention is that Ballew in passing his money to the stakeholder intended to part with his title thereto, and that, if such be the case, there was no larceny, but the offense, if any, was that of cheating by false pretenses.

[2] It is true that larceny and cheating by false pretenses are distinct offenses, and that under a charge of one of these crimes the accused cannot rightfully be convicted upon proof of the other. State v. Loser, 132 Iowa, 429, 104 N. W. 337. It is also true that the line of technical distinction between larceny and false pretenses is sometimes quite obscure and difficult to trace, and the decided cases, especially where money has been...