State v. McCallum, 8340

• Decision Date: 28 March 1956
• Docket Number: No. 8340,8340
• Citation: 77 Idaho 489,295 P.2d 259
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. John D. McCALLUM, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 259

295 P.2d 259

77 Idaho 489

The STATE of Idaho, Plaintiff-Respondent, v. John D. McCALLUM, Defendant-Appellant.

No. 8340.

Supreme Court of Idaho.

March 28, 1956.

Rehearing Denied April 16, 1956.

Rayborn, Rayborn & Kramer, Lloyd J. Walker, Twin Falls, for appellant.

Graydon W. Smith, Atty. Gen., J. R. Smead, Asst. Atty. Gen., James M. Cunningham, Pros. Atty., Twin Falls, for respondent.

ANDERSON, Justice.

The forepart of August, 1954, H. C. Schurger and his wife received a circular from Olmac Manufacturing Co., 411 Weatherly Building, Portland, Oregon, pertaining to shingles and siding. It had a business reply card attached, which they returned. August 9, 1954, which was about three days after the card had been returned, John D. McCallum, defendant and appellant, contacted the Schurgers in Twin Falls and showed them samples of shingles. He told them that he was the president and manager of Olmac Manufacturing Co.; that he and 15 other men had formed the company and made the word 'Olmac' out of their names, and that they were actively engaged in manufacturing aluminum shingles and roofing supplies in the Weatherly Building in Portland, Oregon; that he sold direct from the factory and could save the Schurgers the commission which the dealer would ordinarily charge; that he was looking for dealers; that his price was less than the price of aluminum shingles manufactured by the Olmac Manufacturing Co. if sold through retail outlets. Appellant stated the shingles would arrive in about three days after an order was placed for them.

Relying on the statements of the appellant, the Schurgers agreed to purchase shingles of the type of one of his samples, and paid $745.80 to appellant by check. It being after dark, they estimated the size of the roof, and appellant stated he would measure it the next morning. However, he failed to do so then or at any time thereafter. August 10, 1954, appellant took the check to the bank on which it was drawn in Twin Falls, and had a cashier's check drawn in place thereof.

The Schurgers did not receive the shingles nor hear from appellant, so on August 23, 1954, they went to the Rogerson Hotel, where they knew he had stayed when he last saw them, and inquired for him. He was not there, but a hotel employee stated he would let them know if McCallum should return. August 29, 1954, the Schurgers were informed of McCallum's return, and they contacted appellant at the hotel. He explained that it was an oversight that the shingles had not been sent, and that he had newer samples, which he showed them later that day at their home, and the Schurgers agreed to take a different shingle which was the same price as the shingles originally ordered.

September 4, 1954, Schurger sent a telegram and a letter to appellant canceling the order. He received neither a return of his money, the shingles, nor a reply, until December 14, 1954, when appellant wrote that he was withholding 25 per cent of the purchase price, leaving $555 balance to be returned in due course. This was the only letter of several written by the complaining witness that the appellant answered, and it was answered after the appellant had been arrested on the present charge. None of their money was ever returned, nor were the shingles ordered ever delivered. However, a month or six weeks before the trial, which was commenced May 31, 1955, one square of shingles was sent to the Schurgers, and a warehouse notified them that there was merchandise there for them from Alum Life Mfg. Corporation of Spokane, Washington. The Schurgers refused to accept this merchandise, and testified that the shingles delivered were inferior to those ordered, those ordered weighing 50 pounds to the square, those delivered only 35.

The appellant denied the making of any false or fraudulent statements, or any statements with the intent to defraud.

Among the witnesses produced by the state was Della Ulrich, who testified in substance that December 2, 1953, appellant had called on her and her husband, now deceased, in response to a post card they had returned from a circular sent them by Olmac Manufacturing Co. Appellant told them he was representing this factory. They entered into a contract to purchase $1,380 worth of shingles, and paid him $500.

Although he promised to deliver the shingles by Christmas, they heard nothing from him until December 27, 1953, when he wrote that he knew they were concerned about their order. He wrote on Olmac Manufacturing Co. stationery that the company had completed the enameling the previous Wednesday, but did not think that the color was satisfactory, so others were being prepared and would be ready in a few days.

February 13, 1954, appellant again wrote the Ulrichs on company stationery that the company had new shingles at the same price, which he thought he should show them before sending the others. There was other correspondence, and finally the Ulrichs sent a telegram to appellant, and on April 8 and 9 went to Portland and tried to find the Olmac Manufacturing Co., and discovered that there was no such company at the Weatherly Building or elsewhere that they could find.

They canceled their contract, but heard nothing from the defendant until December 14, 1954, when he wrote that he was deducting 25 per cent of the $1,380 order, on which $500 was paid, leaving $155 balance due to be returned in due course. It was never returned, nor were any shingles received.

B. M. Austin of Klamath Falls, Oregon, testified that under similar circumstances as those heretofore mentioned he had entered into a contract with appellant September 14, 1954, in the amount of $1,450 for shingles, and had paid $100; that appellant promised prompt delivery, as Austin wanted his roof on before bad weather set in. He received neither the shingles nor a refund of his money.

The assistant manager of the Portland Better Business Bureau testified that he investigated Olmac Manufacturing Co. because of complaints from 1952 until shortly before the trial, and that to his knowledge no such company had ever been engaged in the manufacture of shingles and roofing supplies in Portland, Oregon; that as a result of his investigation he heard appellant state he had never been so engaged, but that he contemplated doing so at some time.

A post office inspector testified that he conducted an investigation of appellant in connection with the alleged use of the mails to defraud, but he was unable to find an Olmac Manufacturing factory, and when he later contacted appellant, he was informed that neither the appellant nor the Olmac Manufacturing Co. had a factory, and appellant stated that he would settle the complaints.

Appellant denied that he told Schurger that the Olmac Manufacuring Co. was actively engaged in the manufacture of shingles and roofing supplies, or that he made any false representations. He testified that he purchased such supplies from manufacturers in Portland, Oregon, and Spokane, Washington.

At the close of the state's evidence, appellant moved the court

'* * * to instruct the jury under the statute to return a verdict of not guilty * * *.'

The motion was denied by the court. At the conclusion of all the evidence it was renewed in slightly different wording and again denied. Thereafter the defendant was convicted, and at the time fixed for sentence a motion for a pre-sentence investigation was made and denied.

Appellant contends in his first three assignments of error that the court erred in not granting a directed verdict of acquittal for him, contending that the representations were only 'seller's talk,' that the representations alleged in the information were immaterial to the agreement signed by the parties, and that the shingles were not misrepresented.

Idaho Code § 19-2123 provides:

'Advisory instruction to acquit.--If, at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it must advise the jury to acquit the defendant. But the jury are not bound by the advice.'

In State v. Conner, 59 Idaho 695, 89 P.2d 197, the defendant had been convicted of maintaining a liquor nuisance. The trial court had overruled a motion for an advisory instruction to acquit. In affirming the conviction, the court quoted I.C.A. § 19-2023 (now I.C. § 19-2123) and said, 59 Idaho at page 704, 89 P.2d at page 201:

'The giving, or refusing to give, an instruction advising the jury to acquit a defendant in a criminal case is discretionary.'

Such a ruling has been held not to be reviewable on appeal in the cases of State v. Miller, 52 Idaho 33, 37, 10 P.2d 955; State v. McDermott, 52 Idaho 602, 614, 17 P.2d 343; State v. Emory, 55 Idaho 649, 653, 46 P.2d 67; State v. Richardson, 56 Idaho 150, 157, 50 P.2d 1012; State v. Stevens, 48 Idaho 335, 349, 282 P. 93; State v. Mundell, 66 Idaho 339, 344, 158 P.2d 799; State v. Gailey, 69 Idaho 146, 150-151, 204 P.2d 254; State v. Dickens, 69 Idaho 497, 498, 210 P.2d 384.

In the case of State v. McClurg, 50 Idaho 762, at page 797, 300 P. 898, at page 911, this court stated:

'* * * The motion to peremptorily instruct the jury to acquit is not known to our practice. Where the evidence is insufficient, the court may advise the jury to acquit the defendant (C.S. § 8963), although this advice is not binding on the jury who must be so instructed. However, the refusal to give the instruction advising the jury to acquit is not reversible error, and is not reviewable in this court.'

However, in the case of State v. McCarty, 47 Idaho 117, at page 118, 272 P. 695, in discussing what is now I.C. § 19-2123, this court stated:

'At common law the trial judge had the same right to give a peremptory instruction in a criminal proceeding that he had in a civil action. Commonwealth v. Murphy 109 S.W.353. The effect of C.S. § 8963, is to limit this power, not to abolish it. Where there is no evidence on which to base a verdict of guilty, it is still the...