State v. Dunn

• Decision Date: 28 September 1939
• Docket Number: 6672
• Citation: 94 P.2d 779,60 Idaho 568
• Parties: STATE, Respondent, v. JESS DUNN, Appellant
• Court: Idaho Supreme Court

94 P.2d 779

60 Idaho 568

STATE, Respondent, v. JESS DUNN, Appellant

No. 6672

Supreme Court of Idaho

September 28, 1939

CRIMINAL LAW-OBTAINING MONEY UNDER FALSE PRETENSES-VENUE-EVIDENCE-INDICTMENT, AMENDMENT OF-GRAND JURY-SELECTION OF JURORS-CHANGE IN MEMBERSHIP.

1. Where defendant was charged with obtaining money by false pretenses on a fictitious contract of sale of wool permitting indictment to be amended so as to charge that defendant "received" the fictitious contract whereas original indictment charged him with having "executed" it, was not error, where balance of indictment both before and after amendment charged defendant with having fabricated contract, and defendant at commencement of trial failed to object to amendment. (I. C A., sec. 19-1320.)

2. Where a defendant was indicted for obtaining money by false pretenses by a grand jury of sixteen, defendant was not prejudiced by act of judge in dismissing three members of a grand jury, one because of personal illness, and two because of necessity of engaging in private employment, and appointing three additional individuals to grand jury. (I. C A., secs. 2-205, 19-903.)

3. On the impaneling of a grand jury a party litigant is not entitled to a particular grand juror. (I. C. A., secs. 2-205, 19-903.)

4. Where a defendant acting as agent for a foreign corporation engaged in buying wool executed a fictitious contract of sale of wool and, on basis of such fictitious contract, foreign corporation honored defendant's sight draft, defendant was properly tried for obtaining money by false pretenses in county where sight draft was drawn and paid, and from which contract was sent. (I. C. A., secs. 17-202, 19-304.)

5. In prosecution for obtaining money under false pretenses on a fictitious contract for purchase of wool, admission of 11 other contracts all purportedly fictitious and made by defendant was not objectionable.

6. Where defendant, acting as agent for a corporation engaged in buying wool, obtained money by sending corporation fictitious contracts of sale, evidence sustained conviction for obtaining money by false pretenses.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles F. Koelsch, Judge.

Appellant was convicted of obtaining money by false pretenses and he appeals. Affirmed.

Judgment affirmed. Petition for rehearing denied.

Eli A. Weston, for Appellant.

The court has no power or authority to dismiss or excuse a grand juror from the grand jury after he is sworn and empanelled. Nor has the court any power or authority to add or empanel a new grand juror, except in the cases provided in 19-908, I. C. A. The action of the court in excusing a grand juror and adding a new member to fill the panel, except in the case provided in said section of the statute above stated, is void and without effect. (28 C. J., note 13; sec. 19-908, I. C. A.; State v. Russell, 90 Iowa 569, 58 N.W. 915, 28 L. R. A. 195; State v. Pickus, 63 S.D. 209, 257 N.W. 284; State v. Johnson, 50 S.D. 388, 210 N.W. 350. 28 C. J. 795, sec. 79; Keitler v. State, (Iowa) 4 Greene, 291; Portis v. Mississippi, 23 Miss. 578; State v. McGarrity, 140 La. 436, 73 So. 259; State v. Smith, 145 La. 1091, 83 So. 264; Blake v. State, 54 Okla. Crim. 62, 14 P.2d 240.)

The indictment in a criminal case may be amended by the prosecuting attorney without leave of the court, at any time before the appellant pleads, and at any time thereafter, at the discretion of the court where it can be done without prejudice to the substantial rights of the appellant, an information or indictment cannot be amended so as to change an offense other than that for which a defendant has been held to answer. (Sec. 19-1320, I. C. A.)

The above section of our law states the proposition presented by our third assignment of error, and the appellant urges that the indictment was erroneously amended and thereby changed the nature of the offense and materially changed the principle allegations of the indictment. That this change was a change in the substance of the indictment. (State v. Japone, 202 Iowa 450, 209 N.W. 468; State v. Burgdoerfer, 107 Mo. 1, 17 S.W. 646, 14 L. R. A. 846.)

A needless allegation must be proven. (Note 10 A. L. R. 312.)

The false representation may be proved to have been made in one place, and the property may have been obtained in another. This occurs where the accused has written and mailed a letter to the owner of the money or goods who resides or does business in a distant city, and the property is sent to him upon faith in the false representations contained in the letter. The place in which the owner parts with his property determines the venue of the crime. Hence, evidence to prove where the false representations were made is immaterial. But it must always be proved where the false statements were acted upon by the owner and where the money or goods were obtained. (Underlining by briefer.) (State v. Shaeffer, 89 Mo. 271, 278, 1 S.W. 293; State v. House, 55 Iowa 466, 472, 8 N.W. 307; Norris v. State, 25 Ohio St. 217, 18 Am. Rep. 291; Com. v. Van Tuyl, 1 Met. (Ky.) 1, 4, 71 Am. Dec. 455; People v. Adams, 3 Denio, 190, 45 Am. Dec. 468; Com. v. Karpouski, 15 Pa. Co. Ct. Rep. 280; Underhill on Criminal Evidence, p. 507, par. 445.)

J. W. Taylor, Attorney General, R. W. Beckwith, E. G. Elliott, Lawrence B. Quinn and D. W. Thomas, Assistant Attorneys General, for Respondent.

In Idaho a district judge has discretionary authority to excuse grand jurors and to fill the panel. (Secs. 2-205, 2-502, 19-901, 19-903, 19-1301; Rich v. Varian, 36 Idaho 355, 210 P. 1011; State v. Schieler, 4 Idaho 120, 37 P. 272.)

Proof of other similar crimes as plan, scheme or design, are admissible in a criminal prosecution. (State v. Stratford, 55 Idaho 65, 37 P.2d 681.)

GIVENS, J. Ailshie, C. J., and Morgan and Holden, JJ., concur. Budge, J., did not sit at the hearing or participate in the opinion.

OPINION

GIVENS, J.

--Appellant was convicted of obtaining money by false pretenses under an indictment which charged the receipt and transmittal by appellant as agent for J. B. Stanfield, Inc., of Portland, of a contract for the sale of wool by one Carson to the company; it being alleged the contract was false and fictitious and that upon such contract appellant received $ 200 from the company.

Appellant contends it was prejudicial error to permit an amendment of the indictment changing it by alleging that appellant, as agent of said J. B. Stanfield Co. "received" the contract whereas the original indictment charged him with having "executed" it.

Minutes of the court show the amendment was granted October 31, 1938, at which time the court continued the trial of the cause until November 15, 1938.

Section 19-1320, I. C. A., is as follows:

"An indictment or information may be amended by the prosecuting attorney without leave of the court, at any time before the defendant pleads, and at any time thereafter, in the discretion of the court, where it can be done without prejudice to the substantial rights of the defendant. An information or indictment can not be amended so as to charge an offense other than that for which the defendant has been held to answer."

This section justified the court in allowing the amendment, because it is clear from the reading of the indictment ^[1] both before and after the amendment, appellant was charged with obtaining money under false pretenses on a fictitious contract of sale of wool by Carson to J. B. Stanfield, Inc., and that inferentially it was the intent of the grand jury to charge the appellant with having personally prepared the fictitious contract. The amendment did not charge a new or different offense and it made no substantial difference as to the charge of obtaining money by false pretenses whether the indictment stated appellant received the fictitious contract or executed it, because the balance of the indictment both before and after the amendment impliedly charged appellant with having fabricated the contract. Furthermore, and in any event at the commencement of the trial appellant made no suggestion that he was prejudiced by the change either with regard to the offense charged or as to its being a new and different charge, nor is it shown that he was misled or in any way prejudiced by the amendment.

Section 1008 of the California Penal Code, which is almost identical with section 19-1320, I. C. A., had been construed by numerous cases prior to the enactment of section 19-1320, I. C. A., in 1929. In line with the great weight of authority (see annotations in 7 A. L. R. 1315 and 68 A. L. R. 928, 931) the California court has also consistently subsequently sustained the trial judge in permitting an amendment of the indictment in situations similar to the one presented herein. (Chrisman v. Superior Court, 59 Cal.App. 305, 210 P. 632; People v. Anthony, 20 Cal.App. 586, 129 P. 968; People v. Bellamy, 79 Cal.App. 160, 248 P. 1042; People v. Bryant, 101 Cal.App. 84, 281 P. 404; People v. Schneider, 107 Cal.App. 555, 290 P. 629; People v. Cockrill, 62 Cal.App. 22, 216 P. 78; People v. Lowe, 209 Cal. 199, 286 P. 697.)

It is contended the court erroneously excused three members of the grand jury after it had been impaneled, sworn and entered upon its duties, and improperly selected three others to fill their places, and that the indictment was therefore null and void.

The motion to set aside the indictment filed by appellant September 3, 1938, after conviction, alleges that one Ernest G. Day, a member of the grand jury was excused because of personal sickness; that Robert W. Baker, a member of the grand jury was excused "without legal cause" and that one Ralph McAdams, a member of the grand jury was excused "without legal...