State v. Foster., 4020.

• Decision Date: 16 November 1934
• Docket Number: No. 4020.,4020.
• Citation: 37 P.2d 541,38 N.M. 540
• Parties: STATEv.FOSTER.
• Court: New Mexico Supreme Court

38 N.M. 540

37 P.2d 541

STATE

v.FOSTER.

No. 4020.

Supreme Court of New Mexico.

Nov. 16, 1934.

Appeal from District Court, Eddy County; James B. McGhee, Judge.

John Foster was convicted of obtaining money by false pretenses, and he appeals.

Affirmed.

Accused could be convicted of obtaining money by false pretense that cases of cotton seed sold to victim were cigarettes, notwithstanding that victim buying supposed cigarettes understood he was helping to defraud either owners or insurers.

C. Melvin Neal and Caswell S. Neal, both of Carlsbad, O. O. Askren, of Roswell, and Everett Grantham, of Clovis, for appellant.

E. K. Neumann, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for the State.

WATSON, Chief Justice.

Foster, Renner, and Bond were charged jointly with the offense of obtaining money from one Bryan by false pretenses. Renner and Bond pleaded guilty and testified against Foster, who was convicted and has appealed.

Renner and Bond sold and delivered to Bryan ten cases which they represented to contain cigarettes, and obtained from him one-half of the agreed consideration of $300. The contents of the cases was cotton seed instead of cigarettes.

Appellant introduced Renner and Bond to one Moncrief, who procured one Newbill to introduce them to Bryan. Appellant testified that Renner and Bond, whom he knew, had asked him to help them find a purchaser for some cigarettes they had for sale cheap, that he believed them, and that he had no further knowledge or connection with the transaction.

At the preliminary examination Renner had testified that appellant had nothing to do with the transaction. At the trial both he and Bond withdrew their former pleas of not guilty, entered pleas of guilty, and then proceeded, as witnesses for the state, to make Foster a party to a conspiracy to defraud.

Renner and Bond claimed that they told Bryan that the cigarettes were “hot,” meaning stolen. Bryan denied this and said they told him that they had won the cigarettes “off a warehouse man's son” gambling, and that they had brought them three hundred miles to Carlsbad that it might appear that the cigarettes had been stolen, and that the insurance might be recovered.

Whether the word of Bryan be taken or that of Renner and Bond, it is plain that the former, while he himself was being defrauded, understood that he was helping to defraud either the owners or the insurers of the supposed cigarettes. This situation, counsel contend, entitled appellant to a directed verdict, on the theory that the party defrauded was a particeps criminis, for whose protection the statute was not designed nor the criminal process available. Conceding a conflict of authority, they cite State v. Alexander, 76 Or. 329, 148 P. 1136, and the cases therein reviewed.

[1] Without questioning the correctness of the Oregon decision, we cannot follow it on our facts and under our statute. Nor are we impressed with the soundness of the somewhat old decisions there cited. We consider their fallacy to have been exposed by Peckham, J., dissenting in McCord v. People, 46 N. Y. 470. We are well persuaded that the better reason and the great weight of authority holds appellant amenable, regardless of the fact that his victim was himself ready and willing to commit an offense. “False Pretenses,” 25 C. J. § 48; 11 R. C. L. § 37; Annotation, 13 Ann. Cas. 563.

[2] Appellant requested, and the court refused to give, this instruction: “You are instructed that evidence has been introduced in this case tending to show that the defendant in this case, Pete Renner and W. D. Bond, plead guilty under an agreement had between their attorney and the ...