State v. Gellis
Decision Date | 09 October 1930 |
Docket Number | 12994. |
Citation | 155 S.E. 849,158 S.C. 471 |
Parties | STATE v. GELLIS. |
Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Charleston County; H F. Rice, Judge.
Stanley Gellis was convicted of obtaining property under false pretenses, and he appeals.
Affirmed.
John I Cosgrove and Sidney Rittenberg, both of Charleston, for appellant.
James Allan, Sol., Thomas P. Stoney, and Benj. Allston Moore, all of Charleston, for the State.
The defendant Gellis was tried at the November, 1929, term of court of general sessions for Charleston county, upon an indictment charging him with obtaining property under false pretenses in violation of section 64 of the Criminal Code of 1922. When the case was called for trial, the defendant made a motion to quash and at the same time filed a demurrer to the indictment, on the ground that it charged him with no offense under the laws of the state. The court overruled both the motion and the demurrer, whereupon counsel for the defendant requested a stay of proceedings until the demurrer could be passed upon by the Supreme Court. This request was refused, as well as a motion for a directed verdict of not guilty, made at the close of the state's case. The defendant was convicted and sentenced to imprisonment for a period of three years and to pay a fine of $500. The case now comes to this court on numerous assignments of error.
For consideration of the questions involved in the appeal, the assignments of error may be thus summarized: (1) Error in overruling the demurrer to the indictment. (2) Error in refusing a stay of proceedings after the demurrer had been overruled and notice of appeal given. (3) Error in the admission of evidence. (4) Error in refusing to direct a verdict of not guilty. (5) Error in refusing to give the defendant the opening and reply in argument. (6) Error in charging the jury.
Section 64 of the Criminal Code of 1922 reads as follows:
"Any person who shall, by any false pretense or representation *** obtain from any other person any chattel, money, valuable security, or other property, real or personal, with intent to cheat and defraud any person of the same, shall be guilty of a misdemeanor, and shall, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment not exceeding three years. ***"
The particular offense with which the defendant was charged is thus stated in the indictment:
"That Stanley Gellis, late of the County and State aforesaid, on the 12th day of January, in the year of our Lord one thousand nine hundred and twenty-eight with force and arms, at Charleston Court House in the County and State aforesaid, devising and intending to cheat and defraud J. Louise Hill of her goods, money, chattels and property, unlawfully, knowingly and designedly did falsely pretend that certain stock in a Company known as the Associated National Tobacco Company was of the value of Fifteen Dollars a share and selling on the market at that figure which said pretense the said Stanley Gellis did then and there well know to be false, by color and means of which said false pretense and pretenses, he the said Stanley Gellis did then and there unlawfully, knowingly and designedly obtain from the said J. Louise Hill Two hundred and sixteen shares one fifty-eight shares of the stock of General Electric Company, Two hundred shares of Anaconda Copper Company stock, Twenty shares of Greene Cananea stock; sixty-one shares of United Gas and Improvement Co., stock, one hundred and six shares of Granby Consolidated Company stock, being then and there the property of the said J. Louise Hill of the value of Forty-two Thousand Dollars, with intent to cheat and defraud the said J. Louise Hill to the great damage of the said J. Louise Hill against the form of the statute in such case made and provided, and against the peace and dignity of the State."
There can be no question as to the fundamental right of the defendant in any criminal case to be fully informed, by the indictment, of the nature and cause of the accusation against him.
In State v. Powell, 10 Rich. 373, the court said:
With regard to the sufficiency of an indictment for the offense here charged, we find the following in 11 R. C. L. 857:
One of the specific grounds of objection made by the demurrer was that the indictment does not name the person to whom the alleged false representation was made. It is contended by the appellant that the ""crime of false pretenses requires a false representation to be made to some one," and that "the naming of that some one in an indictment for false pretenses is an essential ingredient of the offense." The case of State v. Johnston, 149 S.C. 195, 146 S.E. 657, 660, recently decided by this court, is cited as fully sustaining this view. It is seen, on examination of the indictment in that case, that it is not alleged, either expressly or by implication, to whom the false statements were made. Mr. Justice Blease, who wrote the opinion, had this to say:
While it is true that the court held in the Johnston Case that, in order to meet the requirements of the Constitution and the Criminal Code, the indictment should allege to whom the false statements were made, it did not hold that such knowledge may not be conveyed to the accused by necessary implication, to be gathered from a reading of the whole indictment, as well as by naming the person, in so many words, to whom such false representations were made. All that the court held was that the indictment should disclose to the accused to whom the false statements were alleged to have been made; and it is clear that if such disclosure is made by unmistakable implication, the same result will be attained as if it were made by expressly naming such person.
In the case at bar, the indictment does not state, in so many words, that the alleged false representations were made to "J. Louise Hill," or to any one else by name; but it unquestionably shows that they were made with the intent to defraud the prosecutrix, and that as a result the defendant obtained from her certain valuable property and she was thereby damaged. We think it is the obvious meaning of the language used that the person who suffered as a result of the false pretenses was the person to whom such pretenses were made. This is the only reasonable construction that can be placed upon the indictment.
Another objection made by the demurrer was that the indictment does not show in what particulars the pretenses were false. It was alleged that the defendant, with intent to cheat and defraud J. Louise Hill of her property, did knowingly and falsely pretend that "certain stock in a company known as Associated National Tobacco Company was of the value of Fifteen Dollars a share and selling on the market at that figure";...
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