State v. Jenson

• Decision Date: 27 August 1929
• Docket Number: 4769
• Citation: 74 Utah 527,280 P. 1046
• Court: Utah Supreme Court
• Parties: STATE v. JENSON

280 P. 1046

74 Utah 527

STATE v. JENSON

No. 4769

Supreme Court of Utah

August 27, 1929

Appeal from District Court, Third District, Salt Lake County Ephraim Hanson, Judge.

David Jenson was convicted of obtaining property by false pretenses and he appeals.

AFFIRMED.

Henderson & Johnson, of Ogden, for appellant.

Geo. P Parker, Atty. Gen., and Byron D. Anderson, Deputy Atty. Gen for the State.

WOLFE, District Judge. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and FOLLAND, JJ., concur. EPHRAIM HANSON, J., being disqualified, did not participate.

OPINION

WOLFE, District Judge.

The defendant was convicted of obtaining three stock certificates representing stock in the Tintic Standard Mining Company from said company by false pretenses, under the first count of an information which reads as follows:

"That the said David Jenson on the 22nd day of January, A. D. 1925, at the County of Salt Lake, State of Utah, wilfully, unlawfully, knowingly, designedly and feloniously, and with intent to cheat and defraud the Tintic Standard Mining Company, a Utah corporation, of its personal property hereinafter described, did falsely and fraudulently pretend and represent to one Cora V. Thompson, who was then and there the agent and employee of the said Tintic Standard Mining Company; that he, the said David Jenson, was then and there authorized by one Eveline E. West to transfer on the books of the said Tintic Standard Mining Company a certificate of stock, No. 370, in the name of the said Eveline E. West, representing 500 shares of said Tintic Standard Mining Company stock, to the said David Jenson as Trustee.

"And the said Cora V. Thompson then and there believing the said false pretense and representation so made, as aforesaid, by the said David Jenson to be true, and then and there being deceived thereby, was then and there induced as such agent and employee aforesaid, to register the transfer, and she did then and there register the transfer of said stock to the said David Jenson, Trustee, by cancelling said certificate No. 370 and issuing in lieu thereof and handing over to the said David Jenson three certificates, No. 11173 for 100 shares, No. A-2350 for 200 shares, and No. A-2351 for 200 shares of the stock of the said Tintic Standard Mining Company in the name of the said David Jenson, Trustee, said stock being of the value of $ 4650.00 lawful money of the United States of America.

"And the said David Jenson did then and there wilfully, unlawfully, knowingly, designedly and feloniously receive and obtain the said property from the said Cora V. Thompson as agent and employee aforesaid, by means of the false pretense and representation so made as aforesaid, and with the intent then and there to cheat and defraud the said Tintic Standard Mining Company of said property, whereas in truth and in fact the said David Jenson was not, and he well knew that he was not authorized by one Eveline E. West to transfer on the books of the said Tintic Standard Mining Company certificate No. 370 in the name of the said Eveline E. West, representing 500 shares of said Tintic Standard Mining Company stock, to the said David Jenson as Trustee.

"And the said Cora V. Thompson, as agent and employee aforesaid, would not have parted with said property, nor would she have transferred upon the books of the said Tintic Standard Mining Company stock certificate No. 370 to the said David Jenson, Trustee, except upon the representations so made as aforesaid by the said David Jenson; Contrary to the provisions of the Statute of the State aforesaid, in such cases made and provided, and against the peace and dignity of the State of Utah."

A second count charged in the information charging grand larceny was dismissed on the motion of the state after the evidence was all in but before the case was submitted to the jury.

The first count was drawn under section 8344, Comp. Laws Utah 1917, which reads as follows:

"Every person who knowingly and designedly, by false or fraudulent representations or pretenses, shall obtain from any other person any chose in action, money, goods, wares, chattels, effects, or other valuable thing, with intent to cheat or defraud any person of the same, if the value of the property so obtained does not exceed $ 50, is punishable as in cases of petit larceny, and when the property so obtained is of the value of more than $ 50, the person so offending shall be punishable as in cases of grand larceny."

The defendant demurred to the information and assigned as grounds for the demurrer the following:

"1. That the facts stated in the First Count of said Information do not constitute a public offense.

"2. That the facts stated in the Second Count of said Information do not constitute a public offense.

"3. That more than one offense is charged in said Information.

"4. That said information does not concisely conform to requirements of sections 8830 and 8832 of the Compiled Laws of Utah, 1917."

A motion to quash the information was also made on the same grounds. The demurrer and motion were overruled.

We shall first consider the defendant's contention "that the facts stated in the first count of said information do not constitute a public offense." It is alleged that the defendant obtained the three stock certificates. Certificates representing shares of stock in a corporation are choses in action; consequently the element of section 8344, that defendant obtained choses in action, is sufficiently alleged. The first count of the information also alleged that the property obtained was of the value of more than $ 50, to wit, of the value of $ 4,650, so that it is sufficient in that regard to show what degree of crime defendant was charged with. The intent to cheat and defraud the Tintic Standard Mining Company is alleged in the words of the statute which, under ordinary circumstances, is all that can be set out, because intent must generally be proved by inferences. The representation alleged to have been made is that the defendant represented that he had authority from Mrs. West to transfer the stock represented by certificate No. 370, which was issued in the name of Mrs. West and indorsed in blank by her, to himself as trustee. It is further alleged that such representation was false and untrue and further that the defendant knew that it was false and untrue. This constitutes the element of section 8344, requiring the false and fraudulent representations or pretenses to be set out. The count further alleges that the Tintic Standard Mining Company believed said representation that the defendant had authority to transfer the stock to himself as trustee was true, and that it acted upon said representation and did transfer the said stock to the said defendant as trustee, and that it would not have done so had it not been for the representation so made by said defendant. This last combination of allegations sufficiently sets up the obtaining of the chose in action by false representations. The first count, therefore, alleges the representation, its falsity, that it resulted in the obtaining of the chose, and that the representation was made with the intent to cheat and defraud, and that the defendant effected the transaction knowingly and designedly. Every element required to set up a proper charge of obtaining a chose by false pretenses is contained in the first count. The demurrer was therefore properly overruled.

The information was also demurred to on the ground that the second count did not state a public offense. Since that count was withdrawn from consideration by the jury, no harm could have come from overruling the demurrer on that ground.

It is contended that the demurrer should have been sustained because two public offenses were improperly united in the information in contravention of section 8834, Comp. Laws Utah 1917 which reads as follows:

"The information or indictment must charge but one offense, but the same offense may be set forth in different forms under different counts; and when the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count; provided, that an information or indictment for larceny may contain also a count for obtaining money by false pretenses, a count for embezzlement, and a count for receiving or buying stolen property, knowing it to be stolen; that an information or indictment for forgery may contain a count for uttering a forged instrument, knowing it to be a forgery; that an information or indictment for robbery may contain a count for larceny; that an information or indictment for burglary may contain a count for house-breaking and one for larceny, and an information or indictment for house-breaking may contain a count for larceny, that an information or indictment for rape, or assault with intent to commit rape, or carnal knowledge of a female under eighteen years of age, or attempt to commit the crime of carnal knowledge of a female under eighteen years of age, or crime against nature upon any person, or attempt to commit the crime against nature upon any person may contain also a count for indecent assault."

An examination of the second count shows that it alleges grand larceny by a trick, artifice, or device. It is the old common-law development of larceny, wherein it was held that where one obtained possession of property by a trick or device, consent to the possession was vitiated because of the fraud, and the possession treated as unlawful from the beginning. The trick, artifice, or device by means of which carrying away from the possession of the Tintic Standard Mining Company was accomplished is not alleged in the second count in the same language as is used in the count setting up the obtaining of...