State v. Johnson, 6072

• Citation: 54 Idaho 431,32 P.2d 1023
• Decision Date: 16 May 1934
• Docket Number: 6072
• Parties: STATE, Respondent, v. W. O. JOHNSON, Appellant
• Court: United States State Supreme Court of Idaho

32 P.2d 1023

54 Idaho 431

STATE, Respondent, v. W. O. JOHNSON, Appellant

No. 6072

Supreme Court of Idaho

May 16, 1934

REAL ESTATE BROKERS-LICENSE-CRIMINAL LAW-COMPLAINT, SUFFICIENCY OF-AMENDMENTS.

1. Complaint following statutory language defining crime of acting as unlicensed broker and identifying transaction sufficiently to bar another prosecution held sufficient as against objection concerning absence of allegation respecting compensation (I. C. A., secs. 19-4001, 53-2204).

2. Defendant is not guilty of attempting to act as broker unless acting for compensation or promise thereof (I. C. A., sec 53-2204).

3. Error, if any, in striking word "feloniously" from complaint charging attempt to act as broker, and correcting complaint to show person swearing thereto, held not reversible; no prejudice being shown (I. C. A., sec. 53-2201 et seq.).

4. Under statute, crime is not offering to sell realty, but is acting as unlicensed realty broker, committed by doing acts specified (I. C. A., secs. 53-2204, 53-2215).

5. If only attempt is shown, conviction of attempting to act as unlicensed realty broker is proper (I. C. A., secs. 17-306, 19-2212, 53-2204, 53-2215).

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. Robert M. Terrell, Presiding Judge.

Defendant appeals from conviction of attempting to engage in the business and act in the capacity of a real estate broker without procuring a license. Affirmed.

Affirmed.

D. E Rathbun, for Appellant.

A conviction should not be applied if the complaint does not state a cause of action. (Sec. 53-2204, I. C. A.; State v. Smith, 25 Idaho 541, 138 P. 1107; Joyce on Indictments, p. 259; People v. Albow, 140 N.Y. 130 35 N.E. 438; Armour Packing Co. v. United States, 153 F. 1, 82 C. C. A. 135, 14 L. R. A., N. S., 400.)

The prosecution should not be allowed to make material changes in the complaint after the case has been tried in the probate court and appealed to the district court. (I. C. A., sec. 19-4002; Lewis v. State, 15 Neb. 89, 17 N.W. 366; 16 C. J., p. 297, sec. 512.)

Bert H. Miller, Attorney General of Idaho, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

The use of the word "felonious" in charging a misdemeanor is mere surplusage and has no effect upon the degree of crime charged. (31 C. J. 701, sec. 250 and note 41; State v. Howes, 26 W.Va. 110; State v. Taylor, 186 Mo. 608, 85 S.W. 564.)

A mistake in reciting the name of affiant is merely clerical, not material, is of form, and amendable. (2 C. J. 359, sec. 97 and note 46; Churchill v. Rea, 126 Mich. 175, 85 N.W. 465; Torrans v. Hicks, 32 Mich. 307.)

Statutory designation of two or more ways in which an offense may be committed creates but one crime, not several. (State v. McDermott, 52 Idaho 602, 17 P.2d 343; State v. Farnsworth, 51 Idaho 768, 10 P.2d 295.)

GIVENS, J. Budge, C. J., Morgan, Holden and Wernette, JJ., concur.

OPINION

GIVENS, J.

The defendant for a number of years had been a real estate broker. In 1932, however, he did not obtain a license to act as a real estate broker as required by title 53, chap. 22, I. C. A. About March 1st, of said year he approached or was approached by Gustave Lang relative to the purchase by Lang of certain real property then belonging to a Mrs. Christensen. An "earnest money receipt" was made out signed by Lang as purchaser and by Johnson as "agent" for the owner; $ 150 being paid down on the purchase price of $ 3,000. Thereafter the defendant by written contract signed by himself and Mrs. Christensen, agreed to purchase the land in question for $ 3,000; title to be perfected by Mrs. Christensen, necessitating the probate of her husband's estate. The land was then and had been for six years, since the death of Mrs. Christensen's husband, occupied by her brother-in-law.

Defendant negotiated with Mrs. Christensen for the purpose of having the estate probated, served two notices on her behalf on her brother-in-law requiring him to vacate the property, and held several conferences with the interested parties but for various reasons not material here the entire deal finally collapsed, though the defendant retained the $ 150.

No point is made that the evidence is not sufficient to support the conviction.

Defendant was convicted in the probate court where the action was instituted, appealed to the district court, again convicted and is now here on assignments of error culminating in three points, first, that the complaint was deficient in that it did not charge that the defendant was to receive or was promised compensation. The complaint followed the language of the statute charging and defining the crime of "acting as a broker" and specifying the particular transaction involved with sufficient minuteness to bar another prosecution on the same transaction, and therefore sufficiently complied with section 19-4001, I. C. A. (State v. O'Neil, 24 Idaho 582, 135 P. 60; State v. McMahon, 37 Idaho 737, 219 P. 603; State v. Bowman, 40 Idaho 470, 235 P. 577; State v. George, 44 Idaho 173, 258 P. 551; State v. Farnsworth, 51 Idaho 768, 10 P.2d 295; State v. McDermott, 52 Idaho 602, 17 P.2d 343; State v. Miller, 54 Ore. 381, 103 P. 519; People v. Welton, 190 Cal. 236, 211 P. 802; People v. Rosenbloom, 119 Cal.App.Supp. 759, 2 P.2d 228; Fealy v. City of Birmingham, 15 Ala. App. 367, 73 So. 296; Byrd v. State, 72 Tex. Crim. 242, 162 S.W. 360. See, also, State v. Erickson, 47 Utah 452, 154 P. 948; Blalock v. State, 112 Ga. 338, 37 S.E. 361.)

It was of course essential that the evidence show that the defendant acted for compensation or promise thereof, which his own testimony did.

Direct examination of the appellant W. O. Johnson:

"Q. Why, Mr. Johnson, when you did this were you doing it without a profit?

"A. If Mr. Lang had paid me the thirty-five hundred dollars he agreed to pay originally, when I bought the land for three thousand dollars, I would have had a profit, but Mr. Lang in the nineteen days from the first of the month, the first of March until the nineteenth, was unable to make his deal the way he wanted to with Mr. Meppen, and the most I was able to sell it to Mr. Lang for was three thousand dollars, consequently there was no profit between the purchase price of the land and the amount I sold it for.

"Q. Why did you go to that trouble when you was making no profit?

"A. Well, I got into the deal and had gone that far and there wasn't any further trouble in order to complete it. I figured I might get something out of it, getting the personal property fixed up, and the probation of the estate fixed up, I might get something out of that."

No complaint is made of the instructions, in connection with this matter, which required such proof as a prerequisite to conviction.

Before the commencement of the trial the state, over defendant's objection was granted leave to amend the complaint by striking out the word "feloniously" and correcting the complaint to show it was in fact H. D. Kingsbury and not Gustave Lang who swore to it. In addition to other sufficient approving reasons, the defendant has neither shown nor suggested any prejudice therefrom, hence, there is in this particular no cause for reversal. (State v. Corcoran, 7 Idaho 220, 61 P. 1034; State v. Hunsaker, 37 Idaho 413, 216 P. 721; State v. Abbott, 38 Idaho 61, 213 P. 1024, 224 P. 791; State v. McLennan, 40 Idaho 286, 231 P. 718.)

Defendant urges that section 53-2204, I. C. A. makes "offering to sell real estate" a crime and that one may not be guilty of an attempt to act as a broker, but that the only uncompleted offense one could properly be convicted of is "an offer to sell" or kindred acts specified in section 53-2204, I. C. A. This argument misconceives the crime charged. Under sections 53-2204 and 53-2215, I. C. A., there is no crime of "offering to sell real estate" as such, there is only the crime of "acting as a real estate broker"; this crime may be committed by doing any one or more of the things enumerated in section 53-2204, I. C. A. As to section 53-2215, I. C. A., the general statutes sections 17-306 and 19-2212, I. C. A., with regard to attempts apply, and if only an attempt be shown and not a completed...