State v. Germain

• Decision Date: 17 August 1909
• Citation: 54 Or. 395,103 P. 521
• Parties: STATE v. GERMAIN.
• Court: Oregon Supreme Court

103 P. 521

54 Or. 395

STATE v. GERMAIN.

Supreme Court of Oregon

August 17, 1909

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh Judge.

B.F Germain was convicted of obtaining money under false pretenses, and he appeals. Affirmed.

Defendant was convicted by the verdict of a jury of the crime of obtaining money by false pretenses on an indictment, the caption, omitting title, and charging part of which is as follows: "The said B.F. Germain on the 8th day of December, A.D.1908, in the county of Multnomah and state of Oregon, then and there doing business as Germain's High-Class Information Bureau Company, did then and there knowingly, falsely represent and pretend to one Henry M Clinesmith that he, the said B.F. Germain, then and there had a position with the Smith Brothers Lumber Company of the city of Portland, said county and state, to give out and fill, and that he, the said B.F. Germain, could procure for him, the said Henry M. Clinesmith, the said employment, and that a certain writing of the tenor following, to wit 'Germain's High-Class Information Bureau Co., B.F. Germain, President and Manager. None but first-class employés registered and sent out. Phone A 2145. Office room 2-3 Benson Building, Fifth and Morrison streets. Portland, Oregon, Dec. 8, 1908. Received from H.M. Clinesmith the sum of $7.50, for which we agree to furnish correct information by which the above-named employé shall be enabled to secure a situation as lumberman with the S.B.Lumbr. Co. at city, wages $150 per month; failing to do which, we promise to refund the above amount paid and the fare for transportation actually paid to and from the place where said applicant is sent by said agent on return of this receipt, together with the written statement from the employer or other evidence that the applicant has applied in person at the place to which he is directed herein, and to the person to whom he is directed herein or his agent, and could not get the situation. B. Germain, Employment Agent'--there being written on the top thereof and across the face thereof the following words and figures, to wit: 'Deposit made subject to securing position, $7.50, balance due 30 days from beginning work. Dec. 15th'--then and there by him, the said B.F. Germain, signed in the manner and form aforesaid and delivered to and received and accepted by him, the said Henry M. Clinesmith, was a good and valid agreement whereby he, the said Henry M. Clinesmith, could then and there secure the said position, which he, the said B.F. Germain, then and there falsely represented and pretended to him, the said Henry M. Clinesmith, that he, the said B.F. Germain, then and there had to give out and fill as aforesaid, by means of which said false pretenses and representations aforesaid by him, the said B.F. Germain, then and there made to him, the said Henry M. Clinesmith, then and there believed and relied on, he, the said B.F. Germain, obtained from the said Henry M. Clinesmith, and he, the said Henry M. Clinesmith, then and there delivered to, and he, the said B.F. Germain, received and accepted from the said Henry M. Clinesmith in consideration of and as a fee for procuring the situation aforesaid, the sum of $7.50 in lawful money of the United States of America, and of the value of $7.50, a more particular description of which being to the grand jury unknown, and of the personal property of the said Henry M. Clinesmith, with intent of him, the said B.F. Germain, then and there to cheat and defraud him, the said Henry M. Clinesmith, of the said sum of money; whereas, in truth and in fact no such partnership, business, firm or corporation known as, existing or doing business as Smith Brothers' Lumber Company then and there existed at the said city, county and state, and the said Smith Brothers Lumber Company was then and there a fictitious concern, and the said B.F. Germain did not then and there have to give out or fill the said position of employment as aforesaid, and the said writing was not a good nor valid agreement, whereby the said Henry M. Clinesmith, could then and there secure the said situation, and this, the said B.F. Germain, then and there well knew, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon." Defendant was sentenced to imprisonment in the penitentiary for a term of two years, and appeals.

John A. Jeffrey and G.A. Johnson, for appellant.

Thad. Vreeland (J.K. Page, on the brief), for the State.

McBRIDE, J. (after stating the facts as above).

The first objection is to the sufficiency of the indictment. It is contended that the receipt shows on its face that the prosecutor, Clinesmith, did not part with the title to his money, but only with the possession of it, and that, as the crime of obtaining money under false pretenses is committed only when the injured party is induced to part with the title to his property, the indictment does not state facts sufficient to constitute a crime. The courts have held with practical unanimity that the crime for which the defendant was convicted is not committed unless the party defrauded is induced by the false pretense to part with the title to his property, and that the mere parting with the possession is not sufficient. State v. Anderson, 47 Iowa, 142; Grunson v. State, 89 Ind. 533, 46 Am.Rep. 178; Miller v. Commonwealth, 78 Ky. 15, 39 Am.Rep. 194; People v. Rae, 66 Cal. 423, 6 P. 1, 56 Am.Rep. 102. In these and in many other cases the courts hold that when by means of fraud, trick, or artifice, the possession of property is obtained with felonious intent, and the title still remains in the owner, the crime is larceny; but if the title, as well as the possession, is parted with, the offense is that of obtaining money under false pretenses. The distinction is a very fine and technical one, and does not seem to be very substantial, but is very tenaciously adhered to by the courts.

It is contended in this case that, as the receipt shows on its face that the money was to be refunded if Clinesmith failed to get the situation applied for, and because the words "deposit made subject to securing position, $7.50 balance due 30 days from beginning work," were written across the face of the instrument, Clinesmith retained the property in the money; the defendant being a mere bailee. We cannot agree with this view. The receipt contains a promise to refund the amount paid...