State v. Evans

• Decision Date: 31 December 1940
• Docket Number: 45199.
• Citation: 295 N.W. 433,229 Iowa 932
• Parties: STATE v. EVANS.
• Court: Iowa Supreme Court

295 N.W. 433

229 Iowa 932

STATE v. EVANS.

No. 45199.

Supreme Court of Iowa.

December 31, 1940

Appeal from District Court, Calhoun County; P. J. Klinker, Judge.

Defendant was accused by county attorney's information of the crime of obtaining property by false pretenses. He entered a plea of not guilty. Trial was had, resulting in a verdict of guilty. Defendant appeals.

Affirmed.

H. W Hanson, of Des Moines, for appellant.

John M. Rankin, Atty. Gen., Jens Grothe, Asst. Atty. Gen., and Arthur J. Braginton, Co. Atty., and G. L. Gray, Sp. Counsel both of Rockwell City, for appellee.

MILLER, Justice.

The information, filed by the county attorney, accused defendant of the crime of obtaining property by false pretenses in that, on or about October 18, 1938, he obtained from Addie Otto one Emmetsburg Investment Co-collateral Trust Note Number 100, by false pretenses. Trial was had, resulting in a verdict of guilty. Defendant was sentenced to an indeterminate period of seven years at hard labor and now appeals.

Appellant served notice of his desire to submit the case upon a printed abstract, pursuant to the provisions of Rule 32 of this court, but failed to serve and file such abstract within 120 days following the filing of his notice of appeal, and, having failed to secure an extension of time within that period, his right to have the case submitted on a printed abstract was lost. State v. Clark, 227 Iowa 1082, 290 N.W. 46; State v. Williams, 228 Iowa __, 290 N.W. 106.However, pursuant to the provisions of Section 14010 of the Code 1939, this court is still required to examine the record, presented by the clerk's transcript. State v. Dunley, 227 Iowa 1085, 290 N.W. 41.Accordingly, appellant has filed an argument, asserting that the cause should be reversed because of errors asserted to appear in the record presented by the clerk's transcript.

Most of the assignments of error which appellant asserts complain of the issues included in the court's instructions to the jury. In a civil case, the issues are raised by the pleadings and the evidence is material in determining whether a particular issue has sufficient support in the evidence to warrant its submission to the jury. In a criminal case, with our short form of information or indictment and a plea of not guilty thereto, the pleadings do not embody all the issues and the evidence is even more important in determining what issues should be submitted to the jury. Without the evidence before us, it is impossible for us to pass upon most of the propositions appellant attempts to raise by his assignments of error.

Appellant's first assignment of error asserts: " The court erred in failing to instruct that the thing obtained by the alleged fraudulent statements must be something of value." The rule of law which appellant invokes is concisely stated in 22 American Jurisprudence 464, as follows: " In general the obtaining and possession of something of value is an essential element of the crime of obtaining property under false pretenses, and, where this essential is lacking, there is no crime. * * * The statutes in stating the elements of the crime of false pretenses quite commonly refer to the thing obtained as property, enumerate certain specific classifications of property or specific articles of property, and add the word ‘ or other property,’ ‘ or other valuable thing,’ or ‘ or other valuable effects." ’ Our statute, Section 13045 of the Code 1935, refers to " any money, goods, or other property" . Obviously, our statute contemplates, as an essential element of the crime, that the thing obtained under false pretenses be something of value.

The court's Instruction 4 undertook to state to the jury in seven numbered paragraphs the propositions which the state was required to prove beyond a reasonable doubt to support a conviction. Paragraphs 5 and 6 were as follows:

" 5. That the said Addie Otto by reason of her belief that said statements and representations were true, and relying thereon, delivered to the defendant her Emmetsburg Investment Co-collateral Trust Note number 100.

6. That the said Addie Otto was the owner and holder of the said Emmetsburg Investment Co-collateral Trust Note, number 100, and it was at the time her property."

The gist of appellant's complaint appears to be that, in Paragraph 6, the court should have instructed the jury that the trust note was " something of value" . We think that the court's instruction was sufficient in that it required the jury to find that the trust note was " property" .

Webster's New International Dictionary defines " property" as follows: " The exclusive right to possess, enjoy, and dispose of, a thing; ownership; in a broad sense, any valuable right or interest considered primarily as a source or element of wealth." In the case of Wapsie P. & L Co. v. Tipton, 197 Iowa 996, 1000, 193 N.W. 643, 645, we state: " The term ‘ property’ is said to be nomen generalissimum and to include everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value, or which goes to make up one's wealth or estate." We know of no definition of the term " property" which could be reconciled with the idea that it was not something of value. When the court instructed the jury that it was necessary that they find that the trust note was the...