State v. Kelly.

• Decision Date: 10 September 1921
• Docket Number: No. 2423.,2423.
• Parties: STATEv.KELLY.
• Court: New Mexico Supreme Court

27 N.M. 412

202 P. 524

STATE

v.KELLY.

No. 2423.

Supreme Court of New Mexico.

Sept. 10, 1921.Rehearing Denied Oct. 31, 1921.

Syllabus by the Court.

A prosecution for obtaining money by false pretense cannot be predicated upon false testimony given in a suit in court for the recovery of money or property.

Code 1915, c. 91, which makes the Attorney General, the state auditor, and the state treasurer a “board of loan commissioners of the state of New Mexico,” and invests such board with power to ascertain and determine the debts and liabilities of the territory of New Mexico and the debts of the counties thereof which were valid and subsisting on January 20, 1910, and which were assumed by the state of New Mexico under the Constitution, and providing for the payment or refunding of such indebtedness by the issue and sale of bonds or otherwise by such board, does not confer judicial power upon such board in a constitutional sense, and such board does not constitute a court, and a finding or judgment by such board under such statute is not a judicial judgment or decree. Such board is an agency created by the state for the purpose of auditing, passing upon, and allowing claims against the state under the statute, and false pretense can be predicated upon a claim presented to such board where the facts warrant.

A duty to be performed is none the less ministerial because the person who is required to perform it may have to satisfy himself of the existence of the state of facts under which he is given his right or warrant to perform the required duty.

What might be a judicial proceeding in determining controversies between private individuals is not necessarily such where the interests of the sovereign state are involved. The state can adopt whatever mode or method it elects to determine whether it shall become liable and discharge a given obligation. It can select whatever agency it sees fit and proper to pass upon the question and provide that upon the determination of such agency the claim shall be paid, and the inquiry conducted by such agency may be administrative or judicial as the Legislature elects.

The fact that an appeal is provided for from the decision of the board of loan commissioners to the district court does not alter or change the character of the proceedings.

False pretense may be established by conduct and acts as well as by words, written or spoken. The presentation of a bogus bond to an agent of the state for redemption is false pretense where the parties so presenting the bond know that it is spurious.

Where a duty is intrusted to a board composed of different individuals, such board can act officially only as such in convened session with the members or a quorum thereof present. Held, that there was substantial evidence, in addition to the record kept by the board, of the fact that such board, in passing upon the bond in question in this case, did so in regularly convened session, with the members thereof present.

Where a bogus bond is presented to an agent of the state authorized to act in the premises, for payment or refunding, by a letter of transmittal, there is no variance because the letter refers to a territorial bond and the bond in question was a county indebtedness which the state had assumed.

The admissions, statements, and declarations of an agent are not admissible to prove agency. There must be prima facie proof of agency before such declarations or statements are admissible for any purpose; but the fact of agency, when it rests in parol, may be established on the trial by the testimony of the agent himself.

The existence of an agency may be shown by or inferred from circumstantial evidence. Held, that there was sufficient evidence in this case to warrant the jury in finding that the Santa Fé Bank, in presenting the bond to the board of loan commissioners, was acting as the agent of the appellant, under proper authority.

The general rule is that the credibility of witnesses is in all cases a question for the jury, and where a witness in the trial of a cause, when first placed upon the witness stand, testifies positively to a given state of facts, and then later, upon being recalled to the stand for further cross-examination, states that he was mistaken about the facts first testified to, and from certain investigations which he has made after leaving the stand knows that he could not have had knowledge of the facts so testified to, the weight of both statements is for the jury, and they have a right to decide which statement they will believe, or whether any credence should be given to either statement.

The setting of a case for trial by the court will not be reviewed except upon a plain showing of a gross abuse of discretion.

Code 1915, § 5901, which provides that the trial court shall set cases for trial not less than 20 days before the first day of the term, is directory.

Instructions on reasonable doubt approved.

An appellate court will not search for reasons to reverse a case, and the duty rests upon the appellant to show that error has intervened to his prejudice.

Appeal from District Court, Santa Fé County; Brice, Judge.

William G. Kelly was convicted of obtaining money and property from the State of New Mexico by false pretenses, and from the judgment and sentence, he appeals. Affirmed.

The fact that an appeal from a decision of the board of loan commissioners to the district court is provided does not change the character of the board's proceedings from administrative to judicial.

Catron & Catron and A. B. Renehan, both of Santa Fé, for appellant.

Harry S. Bowman, Atty. Gen., for the State.

ROBERTS, C. J.

The appellant was indicted, tried, and convicted of obtaining money and property from the state of New Mexico by false pretenses. From the judgment rendered on the verdict sentencing him to the penitentiary, he appeals.

The facts upon which the prosecution was based may be briefly stated as follows: When Congress passed the Enabling Act, authorizing New Mexico to adopt a Constitution and form a state government, and providing for its admission into the Union, it provided that the state of New Mexico should assume the debts and liabilities of the territory and the debts and liabilities of the various counties of the proposed state. Pursuant to the Enabling Act the constitutional convention provided for the assumption of such debts by the state. In 1912 the Legislature, by chapter 16, Laws 1912, created a state loan board and provided a method of procedure by which the debts and liabilities of the state so assumed under the Constitution should be refunded into state bonds. At this time we will not go fully into said act, as it will later be treated in detail in the opinion. It is sufficient to say that provision was made for presenting to the board evidences of indebtedness of the territory and various counties so assumed, and the issuance by said board of new bonds in lieu thereof, or the issuance and sale of said bonds for the purpose of providing money to retire the old bonds. The indictment alleged that appellant presented to said board for redemption and refunding a bogus or spurious bond, No. 254, of the county of Santa Fé, and represented said bond to be a genuine, valid, and outstanding obligation of said county. The bond in question was admitted by the appellant on the trial of the case in the lower court to be a counterfeit bond, and the evidence satisfactorily established the fact that it was counterfeited from Santa Fé county bond No. 187, except as to the number. The indictment further alleged that the bond was presented to the board of loan commissioners by the Santa Fé Bank, acting as agent for appellant. No objection was made upon the trial; in fact it was conceded that, if the Santa Fé Bank was acting as agent, it had no knowledge of the fraudulent character of the bond. Appellant did not testify as a witness in the case. The transcript of the record is very voluminous, and there are several questions which require consideration.

The first logically which requires discussion is as to whether the indictment was sufficient to charge an offense. It is contended by appellant that the court erred in not sustaining the demurrer to the indictment, which was based upon the ground that false pretenses could not be predicated upon representations to the state board of loan commissioners relative to any claim presented to it under the statute, as such board was a judicial body, with power to hear the parties, hear proof, investigate and decide, and that perjury was the only crime which could be charged under false pretenses or representations made to such board.

The said board of loan commissioners was created by Laws of 1912, c. 16 (chapter 91, Code 1915). Section 1 of the act (section 4545, Code 1915) made the Attorney General, the state treasurer and the state auditor the board of loan commissioners of the state of New Mexico, and the board was created--

“for the purpose of ascertaining and determining the debts and liabilities of the territory of New Mexico and the debts of the counties thereof which were valid and subsisting on June 20, 1910, and which are assumed by the state of New Mexico under the Constitution thereof and for the purpose of providing for the payment or refunding thereof by the issue and sale of bonds or otherwise.”

Provisions were made in the act for certifying to such board the debts and liabilities of the territory of New Mexico by the state auditor, and a like certification by the boards of county commissioners of each county of the county indebtedness assumed by the state. Section 4551 is as follows:

“All persons, counties and municipalities having any claim or demand against the territory of New Mexico or against any of the counties thereof in respect of debts which were valid and subsisting on June 20, 1910, and so assumed by said state, may submit the same to the said board of loan commissioners and may...