State v. Merry

• Decision Date: 21 June 1910
• Citation: 127 N.W. 83,20 N.D. 337
• Parties: STATE v. MERRY.
• Court: North Dakota Supreme Court

20 N.D. 337

127 N.W. 83

STATE

v.MERRY.

Supreme Court of North Dakota.

May 19, 1910.

Rehearing Denied June 21, 1910.

Syllabus by the Court.

The defendant was tried, convicted, and sentenced upon an information charging in substance that he, with intent to cheat and defraud one John G. Johns out of his property and money, did falsely pretend to the said Johns that he, the said defendant, was a duly authorized agent of the Commercial Club of Dickinson, and was authorized to solicit and collect money for immediate use in paying for the work of a preliminary survey and other necessary work of organization in connection with building a proposed railroad from Williston to Dickinson and Hettinger, and that Johns, believing said false pretenses and representations, and being deceived thereby, did then and there deliver to said defendant a check of the value of $100, etc. Held, that the information states facts sufficient to constitute the crime of obtaining property by false pretenses.

Whenever the intent or guilty knowledge of a party accused with crime is a material ingredient in the issue of the case, other acts and declarations of a similar character tending to establish such intent or knowledge are proper evidence to be admitted, provided they are not too remotely connected with the offense charged.

It is not necessary, to constitute the offense of obtaining property by false pretenses, that the owner has been induced to part with his property solely and entirely by pretenses which are false; nor that the pretenses be the paramount cause of delivery to defendant. It is sufficient, if they are a part of the moving cause, and, without them, the defrauded party would not have parted with his property.

The mere fact that the money was to be used in paying the cost of a preliminary survey, and for the organization of the railroad company, would make no difference. It would not help defendant even though he used the money for these purposes. The fact that he obtained the check by false representations is the gist of the offense. The criminal character of the act is not determined by the subsequent use of the money, but by the means used in obtaining it.

Under section 9246, Rev. Codes 1905, the offense is complete when the defendant with intent to cheat or defraud another obtains from such person any money or property. The fraud is complete when such person parts with his property.

Objections on the ground that the questions were leading cannot be raised for the first time on appeal.

Evidence examined, and held sufficient to sustain the verdict.

Appellant was sentenced to imprisonment in the county jail of Adams county for a period of eight months, to pay a fine of $200, and the costs of prosecution, taxed at the sum of $500, and, in default of said fine and costs, to be imprisoned in the county jail of Adams county for a further period of two months. Section 10,104, Rev. Codes 1905, provides for such a judgment. Hence no error was committed by the court in rendering such judgment.

Appeal from District Court, Stark County; A. G. Burr, Judge.

Charles F. Merry was convicted of obtaining money by false pretenses, and he appeals. Affirmed.

M. A. Hildreth, for appellant. Andrew Miller, Atty. Gen., Alfred Zuger and C. L. Young, Asst. Attys. Gen., M. L. McBride, and P. D. Norton, for the State.

CARMODY, J.

The defendant was informed against by the state's attorney of Adams county for the crime of obtaining property by false pretenses. The case was transferred from Adams county to Stark county, and tried before Judge Burr and a jury. The trial resulted in a conviction. A motion for a new trial was overruled, and he was sentenced to imprisonment in the county jail of Adams county for a period of eight months, to pay a fine of $200 and the costs of prosecution, taxed at the sum of $500, and, in default of said fine and costs, to be imprisoned in the county jail of Adams county for a further period of two months. The defendant appeals from the judgment, and from the order denying his motion for a new trial. The information charges, in substance, that the defendant on the 7th day of October, 1908, at the county of Adams, etc., did commit the crime of obtaining property by false pretenses committed in the manner following, to wit: “That at said time and place the said Charles F. Merry willfully, unlawfully, and feloniously contriving and intending, knowingly, and designedly by false pretenses to cheat and defraud one John G. Johns of his property and money did willfully, unlawfully, feloniously, knowingly, and designedly falsely pretend to the said John G. Johns that he, the said Charles F. Merry, was a duly authorized agent and representative of the Commercial Club of Dickinson, North Dakota, and that as said agent and representative he was authorized to solicit and collect money for immediate use in paying for the work of a preliminary survey and other necessary work of organization in connection with the building of a proposed railroad extending from the town of Williston to the towns of Dickinson and Hettinger, in the state of North Dakota, and the said John G. Johns, then and there believing the said false pretenses and representations so made as aforesaid by the said Charles F. Merry, and being then and there deceived, thereby was then and there induced by reason of the false pretenses and representations so made as aforesaid to deliver, and then and there did deliver, to the said Charles F. Merry a certain check and order on the Adams County State Bank of Hettinger, North Dakota, for one hundred dollars and payable to the order of the said Charles F. Merry, and then and there of the value of one hundred dollars, and then and there the property of him, the said John G. Johns, and then the said Charles F. Merry did then and there willfully, unlawfully, feloniously, knowingly, and designedly receive and obtain the said property from the said John G. Johns by means of the said false pretenses and representations aforesaid, and with intent then and there to cheat and defraud the said John G. Johns of said property, which pretenses were specifically negatived to be false, to the knowledge of the defendant.” It will be observed that all the pretenses described in the information, and alleged to be false, are that the defendant represented that he was a duly authorized agent and representative of the Commercial Club of Dickinson, and that, as said agent and representative, he was authorized to solicit and collect money for immediate use in paying for the work of a preliminary survey and other necessary work of organization, in connection with the building of a proposed railroad, extending from the town of Williston to the towns of Dickinson and Hettinger, and the said John G. Johns, believing said false pretenses and representations, and being deceived thereby, was then and there induced by reason of the false pretenses and representations so made as aforesaid to deliver, and did deliver, to the defendant a check on the Adams County State Bank for $100, payable to the order of said defendant. The evidence on the part of the state, as far as material, is substantially as follows: A. G. Newman testified that he was a resident of Hettinger, vice president of the First National Bank of that place, first met defendant in the bank. He was brought in there and introduced by a man named John Midland. Said he had some proposition he wanted to talk to witness about; wanted to sell him some railroad stock; was pretty busy at the time and took him down to Dr. Johns, who was president of the Commercial Club. Defendant said to witness that he had represented the Dickinson Club in Chicago and New York with trust companies, that he had already made provisions to dispose of this stock, and all he wanted was to get some local men residing in Hettinger to secure about $100 apiece so as to get the incorporation papers of record, etc. John G. Johns, complaining witness, a physician, testified that defendant was brought in by Mr. Newman, and introduced as a gentleman from Dickinson who was representing the Commercial Club in the interests of a railroad that was to be built by the Commercial Club of Dickinson from Williston to Dickinson and Hettinger, and possibly later from there southwest to Deadwood and on through to the coast. Was pretty busy, told defendant that he, witness, had no interest in it. Defendant said he wanted a few representative men interested, and get them to take some stock. Witness told defendant he had no money to put in a railroad; that all the money he had would not build perhaps six inches of a railroad. Defendant said all he wanted was to get the amount of $100 or so for one share, so as to get the good will of the people, and to secure the right of way between the two towns; that he, defendant, would only give at least one or two shares to any one individual, and he only wanted to place a matter of four or five in town, and said it was necessary, under the state laws, to get a few residents to get a charter for the railroad; that he had been to New York and Chicago, and had arranged to finance the road, and the road would be built in the course of a year or such a matter. Under these representations, witness took a share of stock, and gave defendant his check for $100. Defendant said it would be necessary for witness to sign the articles of incorporation. Defendant and witness went across the street, and signed the articles of incorporation before a notary public. In the course of half an hour witness learned something that opened his eyes, and his railroad stock went down.

Witness also testified as follows: “Q. Did the defendant tell you that he was an agent and represented the Dickinson Commercial Club? A. Yes, sir. Q. What did the defendant state to you regarding his relations with the Dickinson Commercial Club in the matter of soliciting and collecting money for use in paying for the work of a...