State v. Gellis, No. 12994.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: STABLER
• Citation: 155 S.E. 849
• Parties: STATE. v. GELLIS.
• Docket Number: No. 12994.
• Decision Date: 09 October 1930

155 S.E. 849

STATE.
v.
GELLIS.

No. 12994.

Supreme Court of South Carolina.

Oct. 9, 1930.

The defendant was charged by the indictment with devising and intending to cheat and defraud named person of her goods, money, chattels, and property, un-

[155 S.E. 850]

lawfully, knowingly, and designedly by falsely pretending that certain stock was of designated value and selling on the market at that figure, and did unlawfully, knowingly, and designedly obtain from such person other shares of stock with intent to cheat and defraud her, so that the obvious meaning of language used was that the person who suffered as a result of the false pretenses was person to whom false pretenses were made.

The indictment alleged that defendant, with intent to cheat and defraud a certain person of her property, did knowingly and falsely pretend that certain stock was of designated value and selling on the market at that figure; that he knew such pretense was false and, by color and means of it, did obtain from such person valuable property to her great damage, which could only mean that stock which was represented as of a certain value was of a lesser value and selling at a smaller market figure than was represented.

Although the prosecution was based on false pretenses made subsequent to representations over the long-distance telephone, such testimony tended to show fraudulent intent on part of defendant in preparing mind of intended victim for a ready reception of the scheme by which he planned to defraud her.

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.

STABLER, J.

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

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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 ease 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.

I. Did the court err in overruling the demurrer?

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, m

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:

"In all criminal proceedings the party charged should not be led blindfold to the altar. He should know the crime he is called to answer, and it should be so definitely charged that he may know how to shape his defense. When once tried his acquittal or conviction should ensure his subsequent protection against a second proceeding for the same offence. Certainty is required, and this includes as well the matter charged as the manner of charging it."

With regard to the sufficiency of an indictment for the offense here charged, we find the following in 11 R. C. L. 857:

"An indictment for obtaining property by false pretenses is sufficient if the language used is such that it designates the person charged and indicates to him the crime of which he is accused. It must, however, have that degree of certainty and precision which will fully inform the accused of the special character of the charge against which he is called on to defend, and will enable the court to determine whether the facts alleged on the face of the indictment are sufficient in the contemplation of law to constitute a crime, so that the record may stand as a protection against further prosecution for the same alleged offense. It must aver all the material elements of the offense, and hence must show what the false pretenses were; that they were made or authorized by the defendant; that they were false and fraudulent, and deceived the prosecutor; and what was obtained by and under them; or, as differently expressed, it must set out the pretenses and the scienter, and that by means of the pretenses, which were false, the defrauded party was induced to part with the property described. Generally, it is sufficient to, follow the language of the statute, without averring that the pretenses were feloniously made."

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

[155 S.E. 852]

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, 149 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:

"The serious objection to the indictment was the second, which challenged the instrument for failure to allege to whom the false statements were made. This should have been done, in our opinion.

"Time, as the circuit judge charged the jury, is not an element of the offense created by the statute. Neither is there any law which limits the time in which a prosecution for the offense may be instituted. The state, therefore, could show the making of the false statement alleged against the appellant at any time previous to the finding of the indictment by the grand jury. In this respect the defendant is at considerable disadvantage. To go further and require him to defend himself on the charge of making a false statement to some t.ndisclosed person would not preserve to him his right, as declared by the Constitution, to be fully 'informed' of the accusation against him. We do not even think an indictment that failed to disclose to whom the alleged false statement was made complied with the provisions of the Code of Criminal Procedure, which requires an indictment to be plain enough that the defendant may easily understand the...