State v. Gilmore, 4696.
| Decision Date | 17 November 1942 |
| Docket Number | No. 4696.,4696. |
| Citation | 134 P.2d 541,47 N.M. 59 |
| Parties | STATEv.GILMORE et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Roosevelt County; Irwin S. Moise, Judge.
Mark Gilmore and Sam Mersefelder were convicted of obtaining property exceeding the value of $20 by false pretenses and with intent to defraud, and they appeal.
Judgment affirmed as to Mark Gilmore, and reversed as to Sam Mersefelder with instructions to dismiss the cause as to him.
Defendant could not take advantage of the alleged variance between allegation in bill of particulars and proof, after verdict of guilty.
J. B. Newell, of Las Cruces, for appellant Gilmore.
O. O. Askren, of Roswell, for appellant Mersefelder.Edward P. Chase, Atty. Gen., and George H. Hunker, Jr., Asst. Atty. Gen., for appellee.
The appellants (defendants) were indicted, tried, convicted and sentenced to the state penitentiary upon a charge of obtaining property exceeding the value of twenty dollars from Herman Pieper “by making false pretenses and with intent to defraud the said H. Pieper.” Upon request of appellants the following “Bill of Particulars” was furnished to them by the district attorney:
“Comes now the State of New Mexico by its District Attorney in and for the Ninth Judicial District and for a bill of particulars requested by the defendant, Sam Mersefelder, states:
From a careful reading of the testimony in this case we are unable to find any substantial evidence to support the conviction of the defendant Mersefelder. The attorney general confesses error as to him, because of this failure of proof.
On the 22nd day of April, 1941, one Herman Pieper and defendant Gilmore (hereinafter styled defendant) entered into a contract of purchase and sale whereby Pieper agreed to sell defendant certain real estate, 140 dry cows, heifers and bulls, and 90 cows with calves and certain grazing leases. The land and leases were valued at $16,000 and the cattle at $11,332.50, a total consideration of $27,332.50. It was specifically provided that the cattle would not be sold unless the land was sold with them. Arrangements were made by the defendant to borrow $9,000 from an insurance company, to be secured by a mortgage on the land after it was conveyed to him. This money was to be paid to Pieper when received from the insurance company. The balance of $18,332.50 was to be paid by defendant to Pieper at the time of closing the trade.
Pieper's deed to the land, transfer of the grazing leases, and bill of sale to the cattle, were placed in escrow in the First National Bank of Portales, to be delivered to the defendant when he paid the $18,332.50.
Before the consummation of the sale defendant entered into an agreement with one Trimble, through defendant Mersefelder, for the sale to Trimble of a portion of the cattle for $9,640. Trimble's check for $7,640, payable to defendant and endorsed by him, was placed in the bank with the other escrow papers, and at the same time there was deposited with the escrow a bill of sale from defendant to Trimble for the cattle sold to him.
It was agreed that all these documents should remain in escrow until the transaction was closed by the payment of the consideration due to Pieper, except $9,000 thereof to secure which arrangements had been made by defendant to borrow from an insurance company by securing the loan with the land he had agreed to purchase.
On May 28, 1941, defendant stated that he was ready to close the transaction, and he and the others interested came to the office of one Sparks, who was acting as agent for Pieper, for the purpose of completing the trade.
The defendant had been paid $2,000 by defendant Mersefelder on the cattle transaction with Trimble, who was Mersefelder's associate in their purchase. The balance due Pieper (except the $9,000 mentioned) was $10,692.50 after deducting Trimble's check. The defendant drew a check for this amount on the Clovis National Bank, which he represented would be paid upon presentation. After the delivery of this check Pieper released the cattle which defendant had sold to Trimble, and received Trimble's check for $7,355 in lieu of the check for $7,640, because of the loss of five head of the cattle Trimble had bought. At the time of the delivery of the cattle to Trimble, Pieper gave him a bill of sale therefor, and the cattle were moved by Trimble into Texas.
On May 28, 1941, the day the parties met ostensibly to close the transaction, defendant deposited $1,900 in the Clovis National Bank, and it may be inferred that this was the money received by him from Mersefelder, less $100; but at the time the transaction was to be closed his balance in the Clovis National Bank was $7.66. He had neither credit nor deposit with said bank by which the check could be honored.
[1] The reasonable inference is that at the time he entered into the contract he never had the means or credit with which to carry out the agreement, and at the time of the closing of the trade he gave the fraudulent check for the purpose of securing possession of the cattle for delivery to Trimble and Mersefelder. He could not get possession of the cattle without paying the considerations, and it was by this fraudulent means that he secured them for delivery to Trimble, and thereby could make $2,000 in cash, which he secretly retained. His representation that the $10,692.50 check would be paid by the Clovis National Bank, or, as he stated, it would “get the money,” was a fraudulent representation of an existing fact known by him to...
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