State v. Hurley, 3560

• Decision Date: 24 October 1949
• Docket Number: No. 3560,3560
• Citation: 210 P.2d 922,66 Nev. 350
• Parties: STATE v. HURLEY.
• Court: Nevada Supreme Court

Page 922

210 P.2d 922

66 Nev. 350

STATE v. HURLEY.

No. 3560.

Supreme Court of Nevada.

Oct. 24, 1949.

Rehearing Denied Jan. 25, 1950.

Carville & Carville, of Reno, and Horace Appel, of Los Angeles, Cal., for appellant.

Alan Bible, Atty. Gen., W. T. Mathews, Geo. P. Annand and Robert McDonald, Deputy Attys. Gen., Robert E. Jones, Dist. Atty. of Clark Co., A. W. Ham, Jr., Deputy Dist. Atty., Las Vegas, for respondent.

BADT, Justice.

Appellant was convicted on October 7, 1948 in Clark County, Nevada, of the crime of obtaining money under false pretenses, committed September 20, 1946. He has appealed from the judgment and from the order denying his motion for a new trial. The sole point presented to this court in support of the appeal is that the indictment, by which the defendant was charged, fails to allege sufficient facts to constitute a criminal offense. The indictment reads as follows: (Repetition in words of figures used is deleted.)

'Defendant, Stephen Hurley, also known as H. D. Hurley, above-named, is accused by the Grand Jury of the County of Clark, State of Nevada, in the name and by authority of the State of Nevada, of a felony, to-wit: The crime of obtaining money under false pretenses in violation of Section 10391, N.C.L., committed as follows:

'The said Stephen Hurley, on or about the 20th day of September, 1946, or thereabouts, and before the filing of this indictment in the County of Clark, State of Nevada, then and there being in said County and State, and then and there being an agent and officer of the Las Vegas Brewing Co., a corporation organized and doing business under the laws of the State of Nevada, and then and there intending to cheat and defraud Jerome Jerome and his wife, Helen Jerome, did then and there knowingly and designedly falsely represent and state to Helen Jerome and to Jerome Jerome that the capital stock of said Las Vegas Brewing Co. was well worth the price of $1.00 per share of Common stock and $100.00 per share of Preferred stock, or $101.00 per unit of one share of Common stock to one share of Preferred stock; that if the said Jerome Jerome or Helen Jerome would purchase some shares of said stock in said corporation from the defendant, Stephen Hurley, at a price of $101.00 per unit, that the money so paid for said stock would remain on deposit in escrow with the Pioneer Title Insurance and Trust Company at Las Vegas, Nevada, until such time as the said Las Vegas Brewing Co. plant was under construction in Las Vegas, Nevada, and that arrangements had been made with said Pioneer Title Insurance and Trust Company for such an escrow; that a 'sound' (Accoustics) engineer from Hollywood, California, by the name of McAllister had purchased 3,125 shares of Common stock of said corporation; whereas, in truth and in fact, as the said defendant, Stephen Hurley, then and there well knew, the said representations and statements were false and untrue; that the capital stock was highly speculative, had no marketable value, and that no moneys taken in for the sale of said stock remained on deposit, in escrow, with the Pioneer Title Insurance and Trust Company, and that no arrangements had been made by the defendant, Stephen Hurley, or anyone else, for said funds to remain on deposit in escrow with the Pioneer Title Insurance and Trust Company; that said 'sound' engineer named McAllister had not in fact purchased any stock of the said Las Vegas Brewing Co.; that the said Jerome Jerome and his wife, Helen Jerome, believing said statements and representations on the part of defendant, and relying thereon, and as the result thereof, did then and there purchase five shares of Common Stock and five shares of Preferred stock of the Las Vegas Brewing Co. from the defendant, Stephen Hurley, and did then and there give to the Pioneer Title Insurance and Trust Company for the account of the defendant, Stephen Hurley, and at the specific request of the defendant, Stephen Hurley, their own personal check, totalling $505.00 drawn on the First National Bank of Nevada, Las Vegas Branch, Las Vegas, Nevada, dated September 24, 1946, and, subsequently, Jerome Jerome and his wife, Helen Jerome, in good faith, and relying on the statements and representations on the part of defendant, and at the specific request of the defendant, Stephen Hurley, did then and there purchase 3,125 shares of Common stock of the Las Vegas Brewing Co., tendering in payment therefor their personal check drawn on the First National Bank of Nevada, Las Vegas Branch, Las Vegas, Nevada, in the sum of $3,125.00, dated October 25, 1946, for said stock, and that the said defendant, Stephen Hurley, by means of said false pretenses did then and there and in the manner aforesaid obtain from Jerome Jerome and Helen Jerome, his wife, the sum of $3,630.00, lawful money of the United States; that said checks were deposited with the First National Bank of Nevada, Las Vegas Branch, Las Vegas, Nevada, to the credit of the Las Vegas Brewing Co. and were honored by the drawee Bank when presented for payment in due course, and said sums were deducted from the account of Jerome Jerome and Helen Jerome at the drawee Bank; that said defendant, Stephen Hurley, drew said moneys out of the account of the Las Vegas Brewing Co. at the First National Bank of Nevada, Las Vegas Branch, Las Vegas, Nevada, and appropriated the same for his own use and purposes, contrary to the form of the statute in such case made and provided.'

Section 10391, N.C.L., referred to in the indictment reads, in part, as follows:

'Every person who shall knowingly and designedly, by any false pretense or pretenses, obtain from any other person or persons any chose in action, money, goods, wares, chattels, effects, or other valuable thing, with intent to cheat or defraud any person or persons of the same shall be deemed a cheat, and on conviction shall be imprisoned in the state prison not more than ten years nor less than one year * * *.'

Section 10865, N.C.L., defining what shall be 'a sufficient description of the offense,' to be contained in the indictment, reads as follows:

'In every complaint, indictment or information for obtaining or attempting to obtain any chose in action, money, goods, wares, chattels, effects or other valuable things, by false representations or by causing or procuring others to report falsely of his wealth or mercantile character, or by any false pretense whatsoever, it shall be a sufficient description of the offense to charge that the accused did, at a certain time and place, unlawfully obtain, or attempt to obtain, as the case may be, from A. B. his money or property, describing it generally, where it can be done, by means and by use of a cheat, or fraud, or trick, or deception, or false representation, or false pretense, or confidence game, or false and bogus check, or instrument, or coin, or metal, as the case may be, with intent to cheat and defraud the said A. B.'

Upon the return of the verdict on October 2, 1948 the court set October 7, 1948 as the date for pronouncing judgment. On that date the defendant presented a motion for new trial and a motion in arrest of judgment. Both motions were denied, judgment was pronounced and defendant immediately filed his notice of appeal. The motion in arrest of judgment was based upon the ground that the facts stated in the indictment did not constitute a public offense. The record does not disclose that any objection to the sufficiency of the indictment had theretofore been made.

Appellant's analysis of the indictment is that the same in essence charges three pretenses: (1) That the common stock was 'well worth' the price of $1.00 per share and that the unit of one share of common and one share of preferred was well worth $101.00 per unit--the falsity of the representation being that the stock was 'highly speculative, had no marketable value'; (2) 'that the money so paid for said stock would remain on deposit in escrow with the Pioneer Title Insurance and Trust Company at Las Vegas, Nevada, until such time as the said Las Vegas Brewing Co. plant was under construction in Las Vegas, Nevada, and that arrangements had been made with said Pioneer Title Insurance and Trust Company for such an escrow'--the falsity of the representation being 'that no moneys taken in for the sale of said stock remained on deposit, in escrow, with the Pioneer Title Insurance and Trust Company, and that no arrangements had been made by the defendant, Stephen Hurley, or anyone else, for said funds to remain on deposit in escrow with the Pioneer Title Insurance and Trust Company'; and (3) 'that a 'sound' (accoustics) engineer from Hollywood, California, by the name of McAllister had purchased 3,125 shares' of said common stock, whereas said McAllister had not in fact...