State v. Jamison

• Decision Date: 07 June 1888
• Parties: STATE v. JAMISON.
• Court: Iowa Supreme Court

74 Iowa 613

38 N.W. 509

STATE

v.JAMISON.

Supreme Court of Iowa.

June 7, 1888.

Appeal from district court, Shelby county.

Indictment of R. M. Jamison for cheating by false pretenses. Trial by jury, verdict guilty, and judgment. The defendant appeals.Robert P. Foss, for appellant.

A. J. Baker, Atty. Gen., for the State.

SEEVERS, C. J.

1. It is contended the indictment is insufficient, and does not charge an offense prohibited by the statute, which provides: “If any person, by false pretense, * * * and with the intent to defraud, 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. Code, § 4073. The indictment charges, in substance, that the defendant was a loan agent, employed to make a loan of the sum of $300 to one Charlotte A. Swift, the same to be obtained from the Davenport Savings Bank, and that he falsely pretended and represented that a certain mortgage, a copy of which is set out in the indictment, was to secure the payment of $300, when in fact it was for $400, and thereby created a lien on the lands described in the mortgage for the last–named amount; and thereby, with intent to defraud, procured the signature of the said Charlotte A. Swift to said mortgage, and she delivered the same to defendant. The indictment is quite lengthy, but the foregoing statement of its averments is sufficient for the purpose of a consideration of the objections made thereto. It is insisted that the defendant was the agent of Mrs. Swift, for the purpose of procuring the loan, and that the delivery of the mortgage to the defendant as her agent is not such a delivery as is required; and it is said that Mrs. Swift could, at any time, have recalled the mortgage, and taken it into her personal possession, and therefore there in fact was no delivery, for the reason that the possession of an agent is the possession of the principal. Counsel cite and rely on State v. McGinnis, 71 Iowa, 685, 33 N. W. Rep. 338. All that is decided in that case is that there must be a delivery of the instrument obtained by false pretenses. It will be observed that the indictment does not state that the defendant was the agent of Mrs. Swift, but simply that he was a loan agent, employed to make a loan of the sum of “three hundred dollars, to one Charlotte A. Swift.” Therefore it seems to us that the position of counsel cannot be sustained. The indictment, in our opinion, is clearly sufficient, in so far as the objection under consideration is concerned.

2. It is objected that the indictment is insufficient, because it fails to state that the land described in the mortgage belonged to Mrs. Swift. But the defendant, by false pretenses, obtained the signature to an instrument the false making of which would have been forgery, for the reason that Mrs. Swift covenanted in the mortgage that she had “good right to sell and convey” the premises described in the mortgage; that the same were free from incumbrance; and that she would warrant and defend said premises against the lawful claims of all persons whomsoever. It is provided by statute that if any person, with intent to defraud, “falsely * * * make any instrument in writing, * * * purporting to be the act of another, by which any pecuniary demand or obligation is created,” he shall be deemed guilty of forgery. Code, § 3917. It is clear that under this statute, if Mrs. Swift's name had been signed to the mortgage by the defendant with the intent to defraud, he would have been guilty of forgery; and the fact whether Mrs. Swift owned the land or not would have been immaterial, for the reason that under the covenants of the mortgage a pecuniary liability was created against her.

3. The court instructed the jury that “there must be an intent to defraud, but actual defrauding is not necessary to be shown, provided the intent be proven.” It is said by counsel this instruction is erroneous, for the reason that the fraud must be consummated, and that an intent is not sufficient. He cites and relies on People v. Wakely, 28 N. W. Rep. 871, and State v. McGinnis, heretofore cited. We understand the instruction to mean...