State v. Hale

• Decision Date: 19 November 1955
• Docket Number: No. 9307,9307
• Citation: 291 P.2d 229,129 Mont. 449
• Parties: STATE of Montana, Plaintiff and Respondent, v. R. J. HALE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 229

291 P.2d 229

129 Mont. 449

STATE of Montana, Plaintiff and Respondent, v. R. J. HALE, Defendant and Appellant.

No. 9307.

Supreme Court of Montana.

Submitted March 26, 1955.

Decided Nov. 19, 1955.

Worden & Worden, Missoula, Rankin & Acher, Helena (Arthur P. Acher, Wellington D. Rankin, Helena, and Donovan Worden, Missoula, argued orally), for appellant.

Arnold H. Olsen, Atty. Gen. (H. Moody Brickett, Emmet T. Walsh, Asst. Attys. Gen., argued orally), for respondent.

DAVIS, Justice.

The appellant Hale was convicted in the district court for Missoula County under R.C.M.1947, § 94-1805, of the crime commonly known as obtaining money or property by false pretenses. From the final judgment sentencing him to imprisonment for three years at hard labor and from the order denying him a new trial he appeals.

In the opinion written upon the former appeal in this case, State v. Hale, 126 Mont. 326, 249 P.2d 495, will be found a statement of the facts, not to be repeated here. We add only that upon the reversal and remand for a new trial the defendant asked, and by the trial court was granted, leave to withdraw his plea of 'not guilty' that he might demur to the information. One ground of that demurrer was that the facts stated in the information do not constitute a public offense. See R.C.M.1947, § 94-6703, subd. 4. After argument this demurrer was overruled. The defendant again pleaded 'not guilty'; he was again tried and again convicted. Error is now specified by him that this ruling upon his demurrer was wrong.

Initially it is suggested that this contention as well as the demurrer interposed and overruled upon which that contention is made came too late. The argument is that because the accused did not demur to this information when arraigned before the first trial, he may not thus tardily raise the point upon the second trial that the information is bad, although granted by this court a new trial without restriction or limitation. We see no merit in this suggestion.

The rule is that when a first conviction is set aside, as is the case here, the defendant is not precluded upon a remand for a new trial 'from attacking the indictment or information, and, on a second trial, he has the same right to challenge its sufficiency and regularity as he had before the first trial.' 42 C.J.S., Indictments and Informations, § 312, p. 1344; 23 C.J.S., Criminal Law, § 1426, pp. 1123, 1124; People v. Nitzberg, 289 N.Y. 523, 47 N.E.2d 37, 145 A.L.R. 482; State v. Butler, 72 Md. 98, 18 A. 1105. By R.C.M.1947, § 94-7602, the 'granting of a new trial places the parties in the same position as if no trial had been had.' Under a similar statute, N.Y.Code of Crim.Proc. § 544, the New York Court of Appeals has held precisely in point here that where an erroneous judgment of conviction is reversed on appeal and there is a remand for a new trial the case stands as though the abortive judgment had never been entered, and accordingly that then the accused may challenge both the sufficiency and the regularity of the charge against him, even though he had not done so at all when the case was first tried. People v. Nitzberg, supra, 289 N.Y. at pages 530, 531, 47 N.E.2d 37. We agree with this statement of the law.

The first question then for decision in this court on this appeal is whether a public offense is charged in this information. We think not; and we reach this conclusion without finding it necessary to resolve the constitutional issue raised by the defendant's counsel.

We summarize this information in these words, viz.,

(1) That the defendant 'feloniously, knowingly and designedly, and with intent to defraud Missoula County' obtained from it $600 with interest by presenting to the Missoula County Airport Board a 'false and fraudulent claim' in the amount of $600, and in the name of Montana Engineering Company, by one 'H. B. Waite, Sec'y' for 'designs, plans and specifications' covering a described project at the Missoula Airport

(2) That 'pursuant to approval by the Missoula County Airport Board a warrant was drawn upon the County Treasurer of Missoula County', who 'believing the representations upon the said warrant to be true, paid a Missoula County Warrant' made in favor of Montana Engineering Co., or order, in the amount of $600, with interest for 'Designs, plans and specifications', etc.

(3) That the defendant deposited this warrant in a Missoula bank, and 'received therefor credit for the sum of $600.79, lawful money', etc.

Verbatim copies of the claim and warrant are set out in the information, and, as we construe its context, contain the various representations or pretenses by which it is said the county was defrauded.

But there is in this information no specification of any particular representation relied upon which was made by either the claim or warrant, nor of any particular in which any representation so made was false, unless it be that the adjectives 'false' and 'fraudulent', which are employed to describe the claim, are to be taken as a sufficient averment of this essential fact. No such descriptive words are used to characterize the warrant. We shall, nevertheless, assume for our purposes on this appeal that if this information sufficiently charges the falsity of any material representation made by the claim it is good.

We conclude that it does not, however, and that therefore the information is fatally defective.

More than once heretofore this court has said in civil cases that the use of words of malign import such as 'false', 'fraudulent', 'fraud', etc. is a waste of words, unless 'accompanied by a statement of fact upon which the charges of wrongdoing rest'. Brandt v. McIntosh, 47 Mont. 70, 72, 130 P. 413; Mining Securities Co. v. Wall, 99 Mont. 596, 601, 45 P.2d 302; State ex rel. State Highway Commission v. District Court, 107 Mont. 126, 131, 132, 81 P.2d 347. In no case which we have found has this court held to the contrary. The authorities elsewhere agree. Owens v. Green, 400 Ill. 380, 392, 81 N.E.2d 149; In re Trigg, 46 N.M. 96, 105, 121 P.2d 152; Barni v. Kutner, 6 Terry 550, 45 Del. 550, 562, 76 A.2d 801; Betz v. Tower Savings Bank, 185 Wash. 314, 322, 55 P.2d 338; Giordano v. City of Asbury Park, 3 Cir., 91 F.2d 455, 457; Venegoni v. Giudicy, Mo.App., St. Louis, 238 S.W.2d 17, 19; Buck v. Hurd, 281 App.Div. 115, 118 N.Y.S.2d 305, 307.

The rule in criminal prosecutions is no less rigorous. It has been directly applied to informations and indictments designed to charge the crime of obtaining money or property by false pretenses as well as similar crimes involving fraud and false tokens.

True, in Montana there is no case directly in point. But in this jurisdiction it has long been elementary that an essential element of the crime here is the falsity of the representations made. State v. Bratton, 56 Mont. 563, 566, 186 P. 327; State v. Brantingham, 66 Mont. 1, 16, 212 P. 499; State v. Woolsey, 80 Mont. 141, 155, 259 P. 826. And elsewhere it has been repeatedly held that the particulars in which the representations relied upon are false must appear from facts directly and positively set out, that to characterize a representation as 'false' or 'fraudulent' does not suffice to state the offense.

To this effect are the California decisions under sections of the California Penal Code, which at the time were substantially identical with the present Montana statutes. See People v. Carpenter, 6 Cal.App. 231, 91 P. 809, citing directly to the point where the charge involved the presentation of a false claim against a county, People v. Mahony, 145 Cal. 104, 106, 78 P. 354.

Elsewhere the decided cases accord. Harris v. State, 125 Ohio St. 257, 260, 181 N.E. 104; Du Brul v. State, 80 Ohio St. 52, 87 N.E. 837; State v. Van Gunten, 84 Ohio St. 177, 182, 183, 95 N.E. 662; Burke v. Knox, 59 Utah 596, 605, 206 P. 711; Wills v. State, 24 Tex.App. 400, 6 S.W 316; Sasse v. State, 113 Tex.Crim. 513, 22 S.W.2d 941; State v. Palmer, 50 Kan. 318, 322, 323, 32 P. 29; Commonwealth v. Sanders, 98 Ky. 12, 32 S.W. 129; Commonwealth v. Wilson, 190 Ky. 813, 814, 815, 229 S.W. 60; Burnley v. Commonwealth, 274 Ky. 18, 117 S.W.2d 1008; State v. Bradley, 144 La. 459, 80 So. 657; Wimer v. State, 120 Tex.Cr.R. 576, 583 to 587, 48 S.W.2d 296; Moore v. State, 81 Tex.Cr.R. 606, 197 S.W. 728; People v. Winner, 80 Hun 130, 30 N.Y.S. 54; State v. Ruwwe, Mo., 242 S.W. 936; 35 C.J.S., False Pretenses, § 42c(1), p. 690; 25 C.J., False Pretenses, § 60, pp. 626, 627, 628.

Read in the light of these citations both in this court and from other jurisdictions the challenged information at bar charges only that Hale presented for allowance to the Missoula County Airport Board the described claim, which was approved, and upon which a warrant was drawn against the county, and that thereafter this warrant upon which the county treasurer relied was paid Hale in the sum of $600.79. This is not enough. The demurrer should have been sustained for failure to set out the facts upon which the charge of falsity rests.

In opposing this conclusion the attorney general argues that the information is in the language of the controlling statute, and is therefore good. We recognize the general rule to be as stated. But to that rule there is an exception which is as well recognized as the rule itself, viz., that where the statute uses general or generic words in defining the offense the information or indictment bottomed upon that statute must specify the particular facts which constitute the offense. 42 C.J.S., Indictments and Informations, § 139g, pp. 1042, 1043; 31 C.J., Indictments and Informations, § 264, pp. 712, 713.

This exception has been recognized by this court. See State v. Wolf, 56 Mont. 493, 185 P. 556. This exception has been recognized in California as the rule where the charge is of fraud or false pretenses under statutes like ours. People v. Mahony, supra, 145 Cal. at page 106, et seq., 78 P. 354; People v. Butler, 35...