State v. Huckins

• Citation: 234 N.W. 554,212 Iowa 283
• Decision Date: 13 January 1931
• Docket Number: No. 40469.,40469.
• Parties: STATE v. HUCKINS.
• Court: United States State Supreme Court of Iowa

212 Iowa 283

234 N.W. 554

STATE

v.HUCKINS.

No. 40469.

Supreme Court of Iowa.

Jan. 13, 1931.

Appeal from District Court, Linn County; F. O. Ellison, Judge.

County attorney's information accusing George E. Huckins of the crime of cheating by false pretenses. Judgment on verdict of guilty. Defendant appeals.

Reversed.W. J. Barngrover and R. S. Milner, both of Cedar Rapids, for appellant.

John Fletcher, Atty. Gen., for the State.

MORLING, J.

The information is in short form accusing the defendant, George E. Huckins, of obtaining on or about October 31, 1929, $300 in money from Emil Levsen by means of false pretenses. The information does not set out the false pretenses relied upon for conviction. No bill of particulars was demanded. The alleged false pretenses as shown by the evidence and submitted to the jury in the instructions were: That defendant “and his father were engaged in the cigar business and were financing the overproduction of cigars that the large tobacco concerns had on hand; that they operated the business of dealing in seconds and taking care of the over–supply that the large tobacco concerns had on hand; that they sold directly to the retailers and dealers in large quantities and in car load lots; that it was all cash, that each lot had a bill of lading attached and at all times they either had the money in the bank or the merchandise on their hands so that there was absolutely no chance of loss. That they had no advertising, no warehouse, and had no salesmen; that the profits were large and had turned over eight times a year. That he could make the interest twenty–six or fifty–two per cent. and that the volume of their business for the year 1928 was thirty million dollars, and that his father had in excess of two and a half million dollars worth of property in Wisconsin, all of which was clear.” The court told the jury that in order to convict they must find that these pretenses, or some of them, were false. Defendant contends that there is no sufficient evidence of falsity to warrant the submission of the case to the jury.

The testimony is that the alleged false representations were made on or about the 31st day of October, 1929. In amplification and explanation of the representations above set out, the prosecuting witness testified that defendant “told me that the huge profits were due to the fact that they had no advertising, they had no warehouses and had no salesmen; that all this work was handled by three women that his father had in his office, and that the work could just as well be done by one of the girls instead of all three. * * * That the large tobacco concerns had to buy their tobacco supply three or four years in advance and often times they had an overproduction of cigars on their hands which they called seconds and that he and his father financed these second cigars and resold them to dealers, retailers, and it was very similar to an automobile finance concern. * * *” There is testimony that defendant was making similar representations to others and as early as March, 1926. There is testimony that defendant said that he got the idea of this business while he was working for the General Cigar Company from a letter addressed to Ogilvie which he opened. Ogilvie testified that he was for thirty years in charge of the General Cigar Company's distributing office at Des Moines for three–fourths of the state; that he had never heard of the wholesale cigar business of the defendant and his father only as he had read it in the newspaper, and knew of no such method by which seconds could be merchandised; that seconds are defective cigars; that “they are just shipped to us and we just sell them to retailers throughout the country.” Another witness, who had been in the jobbing and retail tobacco business for thirty–nine years and had manufactured cigars for nineteen years, testified that he never knew of cigar companies manufacturing seconds or manufacturing quantities without having orders on hand. Never saw considerable quantities of cigars or seconds in any of the places that he had visited or known of manufacturers carrying surplus cigars.

Defendant had a secretary who testified that for about three years prior to the trial she took care of defendant's personal and private business, handled his correspondence, kept his books, and had something to do with writing his checks and keeping his bank balances; that in June, 1929, she wrote some letters regarding the cigar business, but did not know to whom; that defendant told her it was not necessary to make copies; that she did not remember seeing in the correspondence between defendant and his father any reference to any wholesale cigar business in which either of them was engaged; that she remembered no check payable to any wholesalecigar company; never transacted for defendant any business for any wholesale cigar company relating to used (?) or second cigars; that the only book she ever kept for defendant was a small diary. For a number of years up to the time of the trial defendant was in partnership with witness Negus in running a cigar store in Cedar Rapids, Negus testified to similar representations made to him and to having invested with defendant and his father in consequence. He says: “I asked him if there was any chance of getting my money back and he said, no, not at this time. He told me he expected to serve time for this deal and when he got out he would have enough money to take care of me and pay me off.” Mrs. Negus testified that December 8, 1929, defendant “said he would have to go to the pen and wear stripes * * * but when he got out he would have a sock full of money and he would take care of us.” The witness Speas testified that before September 24, 1929, defendant “said they had this money and they would pay those squawkers in Wisconsin and glad they were getting out.”

The witness Mrs. Royster, whose husband was one of the alleged victims, testified that defendant in a conversation relating to income tax “said you don't need to worry. It is all right and I said * * * Suppose the Government would go there and look at your father's books * * * and he said don't worry about being any books. We are too smart for that.”

The foregoing is but a skeleton, but it shows sufficiently the trend of the evidence.

[1][2] Falsity may be proved by circumstantial evidence. People v. Harrington, 310 Ill. 613, 142 N. E. 246. The evidence warranted the jury in finding that the representations alleged to have been made to the prosecuting witness were false, except the representation the defendant's “father had in excess of two and a half million dollars worth of property in Wisconsin, all of which was clear.” We find no sufficient competent evidence of the falsity of this representation to warrant the submission of the making and falsity of it to the jury.

[3][4][5] II. Under our system of jurisprudence, and in harmony with our instinctive conceptions of justice and of just administration of criminal law, one accused of crime not only may not be convicted on mere accusation, but accusation is not proof and ought not to be received as evidence of guilt. Indictment is found by the grand jury usually only on evidence offered by the prosecutor without hearing the accused and without opportunity to test by cross–examination the validity of the accusing witness's assertions. An indictment is an accusation and only an accusation. It is not evidence. On cross–examination the prosecuting witness Levsen admitted that an exhibit shown him was the minute of his testimony before the grand jury in another prosecution, that of the state against Elmer S. Huckins, Amelia Huckins, and George E. Huckins accusing them of the crime of false pretenses in obtaining from Elwood Royster December 28, 1929, a check for $800. Defendant offered this minute of testimony in evidence. The offer was proper for impeaching purposes. The state thereupon offered the indictment to which the minute of testimony was attached, and over defendant's objection it was received. It is argued in behalf of the state that the minute of testimony was a part of an entire document which consisted not only of the minute but also of the indictment. By statute (Code 1927 § 11272), “When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other; thus, when a letter is read, all other letters on the same subject between the same parties may be given.” But this indictment was not a part of the minute of the testimony offered by defendant nor a part of such testimony. The indictment was merely an accusation drawn by the grand jury therefrom and from other evidence formulated into an accusation. The use of the indictment as evidence of defendant's guilt was manifestly contrary to elementary principles governing the administration of justice.

[6][7][8][9][10] III. It was the theory of the state that a conspiracy to defraud existed between the defendant and his father. There was sufficient evidence of the existence of such conspiracy to go to the jury. Therefore, acts and statements of the father and coconspirator, performed or made in the prosecution of the unlawful purpose otherwise relevant, were admissible against the defendant on the principle that (assuming the jury should find the existence of the conspiracy) the father by such acts and statements was acting for both members of the conspiracy or that what was done or said was a part of the res gestæ of the conspiracy and of its object. Proof of conspiracy as laying the foundation for testimony to such acts and declarations of the father as acts and declarations authorized by defendant in engaging in the conspiracy was admissible. As defendant was not on trial for conspiracy and the existence of the conspiracy was merely evidentiary it was not necessary to allege in the indictment the conspiracy. State v. Browning, 153 Iowa, 37, ...