State v. House
| Decision Date | 23 March 1881 |
| Citation | 8 N.W. 307,55 Iowa 466 |
| Parties | THE STATE v. HOUSE |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.
THE defendant was indicted for cheating by false pretenses. The indictment was in two counts. In the first count it was charged that the defendant falsely pretended to one Addison that he, the defendant, was the agent of the firm of H. & R B. Whittemore & Co., of St. Louis, and was by said partnership duly authorized to collect from said Addison a judgment rendered in the Circuit Court of Rock Island county Illinois, in favor of said H. & R. B. Whittemore & Co., and against George E. Holmes and said Addison, doing business in the firm name of George E. Holmes & Co., the amount of said judgment being $ 432.96, and interest, and that said judgment was wholly unpaid; that said Addison believing said pretenses to be true, when in truth they were false, and were known to be false by defendant delivered to said House four promissory notes payable to the order of said House, for $ 296.85 each dated September 6, 1876, and coming due in one, two, three and four years, and a mortgage on real estate in Polk county owned by said Addison, to secure said notes; that at the time said pretenses were made they were false, and known to be false by said defendant; that said judgment had long prior thereto been paid, but had not been released of record, and the said House was not the agent of said judgment plaintiffs to collect said judgment.
In the second count the defendant is charged with obtaining by the same false pretenses the signature of said Addison to the same promissory notes, the false making of which it is alleged would be punishable as forgery. There was a trial by jury, and the defendant was found guilty and sentenced to imprisonment in the penitentiary for two years. Defendant appeals.
AFFIRMED.
R. N. Baylies, for appellant.
Smith McPherson, Attorney General, for the State.
I.
Before pleading to the indictment the defendant filed a motion to require the prosecution to elect upon which offense charged in the indictment the defendant should be required to plead. The motion was overruled. Section 4073 of the Code provides that "if any person designedly and by false pretense, or by any privy or false token, and with intent to defraud, obtain from another any money, goods or other property, or so obtain the signature of any person to any written instrument the false making of which would be punished as forgery, he shall be punished, etc."
There was but one crime charged in this indictment, and it might well have been charged in one count. The crime consisted in obtaining the execution of the notes by false pretenses. In one count the notes are designated as property, and in the other they are called written instruments, the false making of which would be punished as forgery. They might have been designated as belonging to both classes in one count, and connected by the conjunction and instead of or as in the statute, because all that was charged in both counts was one and the same transaction. Of course it will be understood that if the two counts had been based upon separate transactions both could not have been joined in one count, nor in one indictment. See State v. McPherson, 9 Iowa 53; State v. Nichols, 38 Iowa 110; State v. Fidment, 35 Iowa 541. We think the motion was correctly overruled.
II. The trial in the court below was commenced on the 5th day of May, 1880. The indictment had been pending about one year. There had been two continuances of the cause. On the 4th day of May, 1880, it being the eighth day of the term of court, the defendant filed a motion and affidavit for continuance until the 14th of May. The motion was based on the absence of the defendant's attorney and the absence of witnesses. The motion was overruled.
We need not set out the motion and affidavit. In our opinion there is no showing that the court abused its discretion in overruling the motion. There are many facts apparent of record tending to establish the contrary view. There had already been two continuances, one of which was occasioned, it is said, by the defendant failing to appear at the term until after the jury was discharged. The record shows that up to the time of trial the defendant had been represented at one time and another by some five attorneys, and he is also an attorney. The trial was not concluded until the 19th of May, a period beyond that asked for an adjournment to procure witnesses.
III. It will be observed that the notes in question are for an amount much larger than the judgment of H. & R. B. Whittemore & Co. as charged in the indictment. Part of the amount of the notes consisted of a judgment in favor of other parties. A transcript of this judgment was introduced in evidence by the State over the defendant's objection. It is claimed that this was error. If this were all the evidence introduced by the State, of course it would not, standing alone, tend to prove the allegations of the indictment. But it appears that this judgment was included in the notes, and went to make up the amounts thereof. In proving the alleged false representations as to the Whittemore judgment, and the various conversations between the parties, the other judgment was so connected with that claimed to be fraudulent that it was necessary that the jury should have all of the conversations and acts of the defendants in order to a clear understanding of the facts. We think there was no error in permitting the transcript to be introduced in evidence.
IV. The trial progressed until the 13th day of May, a period of some nine days. The State had introduced its evidence, and the defendant had been examined as a witness in his own behalf and his counsel had also examined one or more witnesses other than the defendant. The defendant was recalled as a witness by his counsel, and, after answering one or two questions, he stopped short and said in substance that he felt that he was alone--that owing to the condition of his counsel he was not properly represented and defended. Thereupon his counsel withdrew from the case. The court adjourned until the next morning. Upon the opening of court on the morning of the 14th, the defendant's counsel appeared and made an address to the court justifying his action in withdrawing from the case. Remarks were made by the court, and by the district attorney, and by other counsel in the case, and an address was delivered upon professional ethics by a member of the bar not engaged in the trial. The remarks of the court and the district attorney were to the effect that so far as they could judge the defendant had been most ably represented by his counsel. These exercises were continued...
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