State v. Dodenhoff
| Decision Date | 30 April 1906 |
| Citation | 40 So. 641,88 Miss. 277 |
| Court | Mississippi Supreme Court |
| Parties | STATE OF MISSISSIPPI v. HEZEKIAH S. DODENHOFF |
April 1906
FROM the circuit court of Clay county, HON. J. T. DUNN, Judge.
Dodenhoff the appellant, and another were indicted for obtaining $ 2,400 in money from J. J. Stevens and others by false pretenses. The appellant demurred to the indictment, was sustained in the court below, and he was discharged. The state appealed to the supreme court. The facts are stated in the opinion of the court.
Judgment reversed and cause remanded.
R. V Fletcher, assistant attorney-general, for appellant.
The vital question presented by the demurrer is as to the sufficiency of the allegations that the defrauded parties relied upon the false representations in parting with their property.
Now, if the indictment be considered as based on Code 1892, § 1086, it cannot be said that any material element of the crime as defined in the statute has been omitted. The intent to cheat and defraud, the name of the defrauded party and property obtained, are all recited. But it may safely be conceded that the indictment should be broader and more comprehensive than the statute. The indictment is drawn with careful and painstaking regard for that high authority Bishop on Directions and Forms. The proper form for the indictment is found on page 225 of that invaluable work. Indeed, a close comparison of the instant indictment with the one laid down as a guide shows that the pleader, out of a superabundance of caution, not only incorporated all the provisions which Bishop thought essential, but enlarged and amplified the averments. Unless these forms are to be distrusted the indictment is good. Compared with the form which the author gives as a good common law form on page 228, it is good a fortiori. There is a good form given on page 230 of the same work, where the false pretenses were as to pecuniary standing, which makes the precedent of special value in the instant case, and this indictment under review follows this form almost to the letter. In all these forms it is held sufficient to aver that "by color and means of which said false pretense, he, the said A. B., did then and there falsely obtain, etc." Bishop cites a vast number of authorities from nearly every state in support of the form laid down, and among others is Bowler v. State, 41 Miss. 570.
This case gives the form of the indictment which was held to be good except for the omission of the word "feloniously. " A reference to the indictment shows that the only allegation that the defrauded party relied on the false representations in parting with their money was the recital "that the said Bowler, by means and color of said false pretenses, did falsely and fraudulently obtain, etc."
Looking to the standard text-books, we find that the weight of authority is decidedly in favor of the sufficiency of the allegation that the property was obtained by reason of the false representation. Thus it is said by Wharton: 2 Wharton's Criminal Law, 1227.
The cases cited by Wharton are direct authority for this position. These are Clark v. People, 2 Lans., 329; Com. v. Hulbert, 12 Metc., 446.
Quoting from another standard text: "The indictment alleged in substance that the defendant unlawfully and designedly pretended certain things by means of which said false pretenses he obtained money; and in the subsequent part of the indictment all pretenses were averred to be false, and the court held this to be sufficient." 2 Russell on Crimes, 529.
Again, it seems that the allegation by means of false pretenses, defendant obtained possession of the property, is sufficient. 1 McClain's Criminal Law, 706, citing as authority People v. Cline, 44 Mich. 290. Practically to the same effect is 2 Bishop on Criminal Procedure, 175.
The text-books seem to speak but one language as to the validity of such an indictment. But candor compels me to admit that there is much conflict in the adjudicated cases. Especially does it seem that the Indiana court is committed to the doctrine that something more is necessary to connect the false pretense with the parting of the money or property than the allegation under review. But the weight of authority is believed to be the other way. Thus an information was held good upon an allegation that "by means of the false declarations and pretenses aforesaid, the said Penley did then and there, etc.," the court saying: "It is not indeed charged in express terms that the defrauded party gave credit to the false pretense of this accused in regard to his property and pecuniary ability, but that he did so is a necessary implication from the allegation that the oxen were obtained by means of that assertion." State v. Penley, 27 Conn. 587.
This case is cited with approval and followed in People v. Jacobs, 35 Mich. 36, where the precise point was before the court.
The rule is the same in Minnesota, for in discussing an indictment similar to the one at bar, the court says (syllabus): "An averment that by means of the false representations, the defendant did obtain the signature of H. to a deed executed by him, is a sufficient averment that H. was induced by the representations to affix his signature." Minn. v. Butler, 47 Minn. 483.
Ohio falls within the same class, and I cite with satisfaction the well reasoned case of Norris v. State, 25 Ohio St., Rep., 217.
This case reviews many of the authorities and holds that it is sufficient to aver that the goods were obtained by means of false pretenses.
Not precisely in point, but as indicating the respect entertained by the court for the ancient precedents as given by Bishop, is Com. v. Lee, 149 Mass. 179 (s.c., 8 Am. Crim. Rep., 249).
So, we find West Virginia, for that court has said: State v. Hurst, 11 W.Va. 54.
This carefully considered case reviews the authorities contrary to this view, and explaining them in part and disregarding them in part harks back for a sure guide and a safe precedent to such pillars of the criminal law as Archibald, Chitty and Bishop.
We may safely rest our contention here, bearing in mind that our court in the Bowler case, supra, has virtually approved this form of indictment.
Leftwich & Tubb, for appellee.
It is not possible that the skeleton of the indictment, as laid down by Bishop, was followed by the pleader; if it was, its form and body were certainly marred when flesh was put on its bones. The attorney-general cites Bowler v. State, 41 Miss. 570, as an authority sustaining this indictment as to the point mainly argued in the state's brief, but certainly the learned district attorney-general is mistaken in this. The indictment there under review was perhaps good, for it is far clearer and more distinct than the one at hand, but it can be no authority, because no objection was made to it by the defendant, save that it did not contain the word "feloniously," and, of course, the court in passing upon it, considered nothing else. We submit, on the other hand, that this court, as far as it has dealt with the question mainly discussed by the attorney-general's brief, to wit: the averment as to the reliance of the party defrauded upon the false pretense in parting with his money or goods has held that the indictment must distinctly and plainly asseverate that the party defrauded relied on the false statements when he parted with his money. This averment must be equivalent to the statement that the party defrauded was ignorant of the truth. Smith v. State, 55 Miss. 513; Denley v. State, 12 So. 698; State v. Mortimer, 82 Miss. 443 (s.c., 34 So. 214).
In Smith v. State, first case cited above, in arguing that the false pretenses need not be the sole inducement for the injured party parting with his goods or money, our court said, on page 522:
Again, on page 523, the distinguished judge who wrote that opinion said: "Though truth and falsehood may be blended most cunningly together and both combined might have induced the seller to part with his goods, yet if it appears that but for the falsehood he would not have done so, this is sufficient." So we come around at last to this principle, that the party defrauded must rely on the false pretenses when he parts with his goods or money, this must be shown in the testimony. If it is to be shown in the testimony it should be distinctly and clearly averred in the indictment. Especially ought this rule to be strongly invoked in a case like the one at bar.
In the case of Denley v. State, above cited, the learned Chief Justice CAMPBELL used the following language: "The indictment is substantially defective in failing to aver that the money was received by means of or because of the sale of the cotton. "
This is essential, and while it is inferable from the language used that the money was got by the sale of the cotton, this is not...
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Westmoreland v. State, 46118
...As stated by this Court in Neece v. State, 210 So.2d 657, 659 (Miss.1968), in quoting with approval language used in State v. Dodenhoff, 88 Miss. 277, 40 So. 641 (1906): property obtained reasonably appears from the whole indictment and there is nothing in the indictment to support or sugge......
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Neece v. State, 44761
...the money was obtained. In our review of the cases we find that this point was first discussed by this Court in State v. Dodenhoff, 88 Miss. 277, 40 So. 641 (1906). The indictment there was in language somewhat similar to the one before us and the indictment in Freeman, supra. It charged 'b......
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...764, 60 So. 774, is relied upon by the appellant, but, as was pointed out in the Odom case, that case did not overrule or depart from the Dodenhoff case, and the between the two cases was there pointed out. The three cases can be reconciled on the theory that the circumstances, under which ......
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...and held the indictment sufficient. Appellant relies on State v. Freeman, 103 Miss. 764, 60 So. 774. There was no reference to the Dodenhoff case the opinion in that case. The distinguishing feature between the two cases is that in the Freeman case the indictment failed to sufficiently char......