State v. Hamm

• Decision Date: 12 June 1978
• Docket Number: No. KCD,KCD
• Citation: 569 S.W.2d 289
• Parties: STATE of Missouri, Respondent, v. Richard HAMM, Appellant. 29672.
• Court: Missouri Court of Appeals

Page 289

569 S.W.2d 289

STATE of Missouri, Respondent, v. Richard HAMM, Appellant.

No. KCD 29672.

Missouri Court of Appeals, Kansas City District.

June 12, 1978.

Motion for Rehearing and/or Transfer Denied July 20, 1978.

Application to Transfer Denied Sept. 12, 1978.

William F. Bauer, Asst. Public Defender, St. Joseph, for appellant.

John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P. J., and SWOFFORD, C. J., and WASSERSTROM, J.

WASSERSTROM, Judge.

Defendant pleaded guilty to stealing by deceit in violation of Section 560.161. From a sentence entered pursuant to that plea, defendant appeals on the ground that the amended information failed to state conduct constituting the crime charged. An appeal on that ground is authorized despite the plea of guilty. State v. LePage, 536 S.W.2d 834 (Mo.App.1976).

The amended information alleges that defendant intentionally stole $800 by deceit over a nine day period by the following means. He obtained an Americash Plus card and the secret personal identification code of James F. Burnham to an automated teller, Docutel machine, operated by the American National Bank. Defendant then went to the machine and according to the instructions inserted the card and pressed buttons labeled with single digits so as to spell out Burnham's personal identification code. Defendant then pressed the buttons to indicate that the machine should dispense $50. The machine did so and defendant took the money. Defendant followed this procedure on 16 separate occasions so that he obtained an aggregate sum of $800 in transactions of $50 each. The information further states that defendant's use of the card and personal identification code was unauthorized by Burnham, that the $800 was the property of American National Bank, and that defendant followed the foregoing procedure with the intent of permanently depriving the bank of the use of the money so obtained by him.

Defendant argues in support of his attack upon the indictment that it " fails to state that Appellant made any representation at all, let alone a fraudulent misrepresentation, and it fails to state that the bank acted in reliance in parting with the EIGHT HUNDRED DOLLARS ($800.00)." This argument is based on the assumption that in order to support the offense, there must have been a verbal misrepresentation by the defrauding party directly to the party defrauded. Not so. The misrepresentation "may consist in any act, word, symbol, or token calculated and intended to deceive. It may be made either expressly or by implication * * *." 35 C.J.S. False Pretenses § 17, p. 825. 32 Am.Jur.2d False Pretenses Sec. 17, p. 189, similarly states: " * * * since a false pretense may be made by implication as well as expressly, words, written or spoken, are not essential to a false representation such as will subject one to punishment for obtaining money or property by false pretenses. Acts or conduct may constitute a false representation." See also People v. Brady, 275 Cal.2d 984, 80 Cal.Rptr. 418 (1969). By his actions here, defendant represented falsely that he did have authority to use the Burnham bank card and personal identification code.

No case has been cited nor found by independent research involving a criminal prosecution arising from a fraudulent manipulation of an automatic bank teller such as here presented. This is probably due to the fact that this application of computer technology is relatively new. However, this situation is analogous to the fraudulent use of a stolen credit card, which numerous cases hold to provide the foundation for prosecution for false pretenses. Thus in Snipes v. State, 50 Ala.App. 139, 277 So.2d 413 (1973) the defendant presented the credit card of another person without permission, signed the sales slip and obtained merchandise. The defense was that ...