State v. Fitzgerald

• Court: Mississippi Supreme Court
• Writing for the Court: MCGOWEN, J.
• Citation: State v. Fitzgerald, 151 Miss. 229, 117 So. 517 (Miss. 1928)
• Decision Date: 11 June 1928
• Docket Number: 27275
• Parties: STATE v. FITZGERALD et al. [*]

117 So. 517

151 Miss. 229

STATE v. FITZGERALD et al. ^[*]

No. 27275

Supreme Court of Mississippi

June 11, 1928

Division A

APPEAL from circuit court of Pike county, HON. E. J. SIMMONS, Judge.

Alex Fitzgerald and another were charged with attempting to obtain money under and by virtue of false pretenses. From a judgment sustaining a demurrer to the indictment, the state appeals. Affirmed.

Affirmed.

J. A. Lauderdale, Assistant Attorney-General, for the state.

This prosecution is brought under and by virtue of section 936 Hem. Code, 1927, and sec. 813 of said Code. An attempt to commit false pretenses is an indictable offense at common law. Wharton, Criminal Law, sec. 212 et seq.; Bishop Directions and Forms (2 Ed.), par. 434.

The allegations of an indictment to charge false pretenses. See State v. Freeman, 103 Miss. 764; Odom v. State, 130 Miss. 643; State v. Grady, 147 Miss. 446, 111 So. 148.

Necessary allegations to charge an attempt to commit false pretenses. See State v. Phillips (Mont.), 92 P. 299; State v. Riddell, 74 P. 447, 25 C. J. 637, sec. 73, par. 4.

In State v. Burton, 145 Miss. 821, 111 So. 300, this court held that an indictment which charged the defendant with gathering wood and carrying it to a distillery was sufficient to charge the defendant with an attempt to manufacture liquor. Carrying the wood to the still was an overt act toward the commission of the crime. In Stokes v. State, 92 Miss. 415, 21 L. R. A. (N. S.) 898, this court held that whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt. In Miller v. State, 130 Miss. 730, this court held that in order to constitute an attempt to commit an offense, two elements are necessary; first, the intent to commit; second, an overt act towards its commission. Cunningham v. State, 49 Miss. 685; Powell v. State, 128 Miss. 107, 90 So. 625.

Counsel for appellee insist that under the law it was necessary to make the contract between the defendant, Fitzgerald, and Pike county a part of the indictment. This contract did not constitute the false token or writing. It is true that by virtue of this contract the alleged false pretenses were made possible. However, the false pretenses were not made on the contract, but on the copy of the writing made a part of the indictment. That is, the statement of the account, under the contract. It was no more necessary to make this contract a part of the indictment than it was necessary to make the record show the election and qualifications of Reeves as a member of the board of supervisors. I am sure that no one will contend that this record was necessary.

The indictment is a joint indictment. Each and every allegation made against the defendant Fitzgerald is also made against the defendant, Reeves. Every person aiding or assisting in the commission of a crime is guilty as principal and the allegations of the indictment are certainly sufficient to charge Reeves with the crime. The indictment alleges that if the crime had been committed that they, the defendants, would have obtained of and from Pike county the said sum of two thousand, four hundred thirty-six dollars and twenty-eight cents. This is certainly a sufficient allegation that Reeves would have profited by the commission of the crime.

Price & Price, for appellees.

The indictment charges that the defendants unlawfully and feloniously presented a bill to the board of supervisors, with the intent to obtain two thousand, four hundred thirty-six dollars and twenty-eight cents of the county's money. In Dill v. State (Miss.), 115 So. 202, the defendant was prosecuted for attempting to knowingly and feloniously manufacture intoxicating liquors; under the statute it is necessary to allege and prove a sufficient overt act towards the commission of the offense. A mere intention to commit a crime is not punishable, and the court held, "while it might with reason be argued with the statement of the appellant, that he would have had a fire within fifteen minutes, if he hadn't been arrested, yet this statement was insufficient to warrant the jury in finding that he prepared the mash and assembled the still with the intent to manufacture intoxicating liquors."

We say that the mere presentation of a bill to the board of supervisors for allowance on contract for working the public roads, for a certain quantity of gravel, is not a sufficient overt act upon which to base an attempt to obtain money from the county upon a charge of attempting the crime of false pretenses. A mere preparation to do an act is not an attempt at false pretenses. Miller v. State, 130 Miss. 730; Montgomery v. State, 65 So. 572; People v. Young, 47 L. R. A. 108; Bracy v. State, 64 Miss. 26; Powell v. State, 128 Miss. 107, 90 So. 625.

The indictment states that it is founded upon a contract of Fitzgerald with the board of supervisors. But see Roberts v. State, 77 Miss. 110; Johnson v. State, Walker, 392; Riggs v. State, 26 Miss. 51; Williams v. State, 42 Miss. 330.

In Cook v. State, 72 Miss. 517, the court held: "That an omission in an indictment for felony, going to the very essence of the offense, renders it void and subject to attack at any time." If it be admitted in this case that we may possibly by intendment, read into the indictment that the defendant did then and there wilfully and unlawfully attempt to obtain money from the county, or as said by the court in the Cook case, "guessing along the same line of offenses, read into the empty places in the indictment, the words "did then and there attempt to obtain" or if we may interpolate that "the defendant did conspire and combine by attempting to defraud the county;" we usurp the functions and powers of the grand jury, and deprive the defendants of many rights, guaranteed to them under the Constitution. Jesse v. State, 28 Miss. 100; Buchanan v. State, 97 Miss. 839, 53 So. 399; Taylor v. State, 74 Miss. 544, 21 So. 129; Hall v. State, 91 Miss. 216, 44 So. 810, 826; McCearley v. State, 52 So. 796; Willis v. State, 113 Miss. 838, 74 So. 677.

OPINION

MCGOWEN, J.

The state appeals from the judgment of the circuit court of Pike county sustaining a demurrer to an indictment against Alex Fitzgerald, a contractor, and H. E. Reeves, a member of the board of supervisors, on a charge of attempting to obtain money under and by virtue of false pretenses.

As the indictment is rather lengthy, we shall not attempt to set it out in haec verba, but shall only quote from it such parts as we deem necessary to decide the several points presented.

The indictment, in our opinion, charged that Fitzgerald, a public road contractor, and Reeves, a member of the board of supervisors, falsely represented to the county that Fitzgerald had hauled and spread gravel on the public roads of a certain district, and that they made false representations and jointly endeavored and attempted to obtain from Pike county two thousand, four hundred thirty-six dollars and twenty-eight cents. The indictment alleged that the overt act toward the commission of the crime was the preparation, signing, and approving of the account for said money, and filing the same with the board of supervisors, falsely stating in the account the kind of gravel hauled by said defendants--in common parlance, "padding the account"--all of which representations were known to be false, that Fitzgerald did not haul and spread the gravel, as represented in the account, and that they were intercepted, and failed in the commission of said offense of false pretenses.

The indictment is drawn under section 1166, Code of 1906 (section 936, Hemingway's 1927 Code), which reads as follows:

"Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, upon conviction thereof, shall be punished by imprisonment in the penitentiary not exceeding three years, or in the county jail not exceeding one year, and by fine not exceeding three times the value of the money, property, or thing obtained."

And likewise an attempt to commit a crime is defined in section 1049, Code of 1906 (section 813, Hemingway's 1927 Code), as follows:

"Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished as follows," etc.

An attempt to commit false pretenses is an indictable offense at common law, as well as under the statutes quoted supra. See Wharton Criminal Law, vol. 1, section 212; Bishop, Directions and Forms (2 Ed.), par. 434. And the latter is authority for the rule that the indictment is sufficient, if it first charges the attempt, and then accurately describes the false pretenses.

In the case of State v. Freeman, 103 Miss. 764, text page 766, 60 So. 774, 775, the supreme court of this state held, as a requisite for the indictment of false pretenses, as follows:

"In an indictment for false pretenses, it is necessary to charge that the pretenses were false; that the defendant knew them to be false; and he got from another certain money or other valuable things; and that the pretenses were the moving cause whereby the money or things were obtained."

With these general observations, we shall now consider the demurrer. The demurrer attacks the indictment, and alleges that the account set forth in the indictment and alleged by the indictment to have been made out,...