State v. Jones

• Decision Date: 10 February 1964
• Docket Number: No. 7270,7270
• Citation: 389 P.2d 398,73 N.M. 459,1964 NMSC 28
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. G. W. JONES, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 398

389 P.2d 398

73 N.M. 459

STATE of New Mexico, Plaintiff-Appellee, v. G. W. JONES, Defendant-Appellant.

No. 7270.

Supreme Court of New Mexico.

Feb. 10, 1964.

J. B. Newell, Las Cruces, for appellant.

Earl E. Hartley, Atty. Gen., Thomas Donnelly, George R. Schmitt, Asst. Attys. Gen., Santa Fe, for appellee.

CHAVEZ, Justice.

This is an appeal from a conviction of obtaining money under false pretenses. Section 40-21-1, N.M.S.A., 1953 Comp.

On June 29, 1961, appellant was first charged by information of obtaining money with intent to cheat and defraud under Sec. 40-21-3, N.M.S.A., 1953 Comp. On August 2, 1961, an amended information was filed under Sec. 40-21-1, supra. Before trial, appellant filed a motion to dismiss the amended information on the ground of failure to have a preliminary hearing. The motion was overruled. Arraignment was held on the amended information and the 24-hour-notice period, as well as the reading of the information, were waived by appellant. Trial was held and appellant was found guilty. The trial court pronounced sentence for a period of not less than one year nor more than five years, with two years of the maximum sentence suspended. This appeal followed.

The facts leading to appellant's conviction are as follows. Automotive Chemicals, Inc., a New Mexico corporation, was incorporated with appellant as one of the incorporators. Appellant was given the position as plant manager. Appellant then employed a Mr. Allman to sell stock for the corporation, representing to Allman that he had authority to employ him in that position. Allman contacted Mr. and Mrs. William D. Holden, owners of the Alameda Laundry and Cleaners, as prospective purchasers, but before any sale was made, Allman told them that he wanted them to talk to an officer of the corporation. Allman then introduced the Holdens to appellant, who represented himself to them as a vice president of the corporation. Appellant also told the Holdens that he had $70,000 worth of stock in escrow in a bank in Alamogordo and that if they 'thought that there was anything crooked about it, that he wouldn't have that much stock in it himself.' On June 21, 1960, in a letter to the board of directors of Automotive Chemicals, Inc., appellant submitted his resignation as plant manager and assistant to the president. There is evidence that appellant was never selected or designated by the board of directors of the corporation as assistant to the president. Appellant further represented that the stock was a good buy and that, in his opinion, it would be a growing concern. Upon receiving payment by check in the amount of $500, drawn on the Alameda Laundry and Cleaner's account and signed by Mrs. Holden, appellant represented to them that they would receive their stock certificate within a period of about six weeks. This payment was never shown on the transfer books of the corporation, nor did the Holdens ever receive their stock certificate.

Appellant sets out thirteen points upon which he relies for reversal. However, in his reply brief, appellant abandons the last three points.

The remaining ten points may be grouped into two general points: (1) Was error committed when the trial court overruled appellant's motion to dismiss the amended information? (2) Were there any errors committed as to the elements of the offense, as to admissions of the evidence, or instructions to the jury?

Appellant's first point contends that the trial court erred in not dismissing the amended information because of lack of a preliminary hearing. The record discloses that on June 29, 1961, appellant was charged with obtaining money with intent to cheat and defraud under Sec. 40-21-3, supra, and a preliminary hearing was held; on August 2, 1961, the information was amended to charge appellant with obtaining money under false pretenses under Sec. 40-21-1, supra; on February 14, 1962, the first charge was dismissed, motion was made and denied to dismiss the amended information, and arraignment was held on the amended information. Appellant waived the reading of the information, waived the 24-hour-notice period, stated that he was satisfied with his representation and advice of counsel, and entered a plea of not guilty.

The record discloses that the following occurred before the arraignment:

'BY THE COURT: Was he given a preliminary hearing on both charges?

'BY MR. SOSA: Yes, Your Honor, he was given a preliminary hearing with respect to both charges Mr. Allman and Mr. Edwards, and they both testified at that time.

'BY THE COURT: Here's the proposition, I think the motion is well taken as far as the original information is concerned and those will be dismissed, but as to the second charge that is pending, he has evidently had a preliminary hearing on them, I mean the second information, at this time there will be an arraignment on that.

'BY MR. NEWELL: Then in both cases we waive the 24 hours, I don't know what the record showed before, I am not taking any advantage of the Court, we waive the 24 hour notice and enter a plea of not guilty to both informations.

'BY MR. SOSA: Both the amended informations?

'BY MR. NEWELL: Yes.'

In State v. Bailey, 62 N.M. 111, 305 P.2d 725, this question was before this court and it was disposed of in the following language:

'The court did not err in putting appellant to trial upon an information filed prior to the preliminary examination. While no person shall be held on information without having had a preliminary examination, unless such examination is waived, Article II, Sec. 14, New Mexico Constitution, appellant not only was accorded a hearing but he waived this right by his plea. State v. Gallegos, 46 N.M. 387, 129 P.2d 634; State v. Trujillo, 33 N.M. 370, 266 P. 922; State v. Vigil, 33 N.M. 365, 266 P. 920.'

Appellant's third point contends that the amended information charged him with having obtained $500 from Mrs. Holden, while the proof shows that the $500 check was drawn on the Alameda Laundry and Cleaner's account and signed by Mrs. Holden, and that the record fails to disclose any evidence showing a connection between the Alameda Laundry and Cleaner's account and Mrs. Holden.

There is no merit in this contention. The record shows that Mr. and Mrs. Holden were the owners of the Alameda Laundry and Cleaners at the time that Mrs. Holden signed the check and gave it to appellant at the laundry. We doubt that there was a variance, but even if so, it was not such as would impair the substantial rights of appellant. State v. Peke, 70 N.M. 108, 371 P.2d 226. We have also held that, in a conviction for obtaining money under false pretenses, any variance must operate to mislead the defendant to his injury. State v. Gilmore, 47 N.M. 59, 134 P.2d 541.

Appellant also contends that the statute, Sec. 40-21-1, supra, obtaining money under false pretenses, does not define an offense as it does not state whether the offense is to be a felony or a misdemeanor.

In State v. Tinsley, 34 N.M. 458, 283 P. 907, the court discussed this problem, saying that there were two views on the question; one view being that punishment by imprisonment in the penitentiary makes an offense a felony, and the other view being that imprisonment for longer than six months makes an offense a felony. In the case before us, Sec. 40-21-1, supra, requires imprisonment in the penitentiary, and Sec. 40-1-3, N.M.S.A., 1953 Comp., makes the offense a felony.

Appellant further claims that the trial court erred in overruling appellant's motion to dismiss, because the information does not contain the word 'designedly,' as set out in the statute, Sec. 40-21-1, supra. We look to Sec. 41-6-7, N.M.S.A., 1953 Comp., entitled 'Charging the offense.' The amended information charges that appellant unlawfully obtained money under false pretenses with intent to defraud. It enumerates the section defining the offense and fixing the penalty, Sec. 40-21-1, supra. This is sufficient. State v. Lucero, 71 N.M. 268, 272 P.2d 837; State v. Romero, 69 N.M. 187, 365 P.2d 58.

Appellant's claimed errors as to the elements of the offense may be discussed together. Under point VI, appellant contends that the trial court erred in not directing a verdict for appellant because of failure of proof of past or present material facts upon which Mrs. Holden relied. Under point VII, it is contended that error was committed in the trial court's refusal to grant appellant's requested instruction No. 1, to the effect that the state must prove beyond a reasonable doubt that appellant knew that the representations were false and untrue and that such representations were made by appellant with intent to defraud Mrs. Holden. Appellant's point VIII contends that the trial court should have given appellant's requested instruction that, to constitute the offense, there must be a false representation of a past or present representation of fact with reliance. Appellant's point II claims error because the trial court permitted evidence to be introduced that the $500 was not returned to Mrs. Holden.

At the present time, there are four views regarding the statutory crime of obtaining money under false pretenses. The old traditional view required the representations to be of an existing fact or one which had theretofore occurred. Jones v. State, ...