State v. Moore

• Decision Date: 09 December 1980
• Docket Number: No. 14103,14103
• Citation: 273 S.E.2d 821,166 W.Va. 97
• Court: West Virginia Supreme Court
• Parties: , 19 A.L.R.4th 945 STATE of West Virginia v. Robert MOORE.

Page 821

273 S.E.2d 821

166 W.Va. 97, 19 A.L.R.4th 945

STATE of West Virginia v. Robert MOORE.

No. 14103.

Supreme Court of Appeals of West Virginia.

Dec. 9, 1980.

Syllabus by the Court

When one makes a promise to perform in the future with the intent to cheat, defraud or deceive, such promise constitutes a misrepresentation of an existing fact which is indictable as a "false pretense" under W.Va.Code § 61-3-24 (1977).

Hostler & Shinaberry and Sterl F. Shinaberry, Charleston, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., Thomas N. Trent, Asst. Atty. Gen., Charleston, for defendant in error.

McGRAW, Justice.

Robert Moore, defendant below, appeals from an order of the Circuit Court of Marion County which denied his motion to set aside a jury verdict of guilty returned against him on a charge of obtaining money by false pretenses. Appellant contends that the indictment did not charge him with a crime and was therefore void as a matter of law, that the evidence adduced at trial was insufficient to support his conviction and that the trial court erred in admitting the testimony of certain witnesses and in refusing to admit evidence offered by the defense. We agree with appellant's assignments of evidentiary error and award him a new trial.

In June 1975, the Marion County grand jury returned an indictment against appellant purporting to charge him with the crime of obtaining money by false pretenses in violation of W.Va.Code § 61-3-24 (1977). The charge arose from a transaction between appellant and Mr. James W. Taylor and Mrs. Wanda L. Taylor involving the delivery and construction of a modular home. The indictment was based upon the testimony of Mr. Taylor and others. Prior to trial appellant demurred to the indictment, alleging, among other things, that it did not charge a crime for which appellant could be tried. This motion was apparently denied by the circuit court, although no order to that effect appears on the record before us. The case proceeded to trial in January of 1977, and resulted in a jury determination of guilty. The court denied appellant's motions to set aside the verdict, to award a new trial and to arrest the judgment. It is from this order that appellant appeals.

Appellant's first contention is that the indictment returned against him did not on its face charge him with the commission of a crime under West Virginia law and was for that reason void as a matter of law. The indictment charged that appellant

did unlawfully, fraudulently and feloniously represent to James W. Taylor and Wanda L. Taylor that he ... would deliver and erect ... a Fuqua modular home ... said erection to be completed by October 1, 1974 ... whereas in truth and in fact the said Robert Moore did not intend to deliver and erect ... a Fuqua modular home ... (emphasis added).

Appellant asserts that one may be convicted of the crime of obtaining money by false pretenses only if the false statements alleged to have been made relate to present or past facts. Appellant argues that because the indictment alleges only that he made false promises to perform in the future, it does not charge him with the commission of a crime. We disagree.

W.Va.Code § 61-3-24 (1977) provides "(i)f any person obtain from another, by any false pretense, token or representation, with intent to defraud, money, goods, or other property which may be the subject of larceny ... he shall ... be deemed guilty of larceny ..." The statute is silent as to whether the false representation must relate only to present or past facts. The general rule is that in order to support a conviction of obtaining money or goods by false pretenses, the false statement or representation alleged to have been made must relate to existing facts or past events. 2 Wharton, Criminal Law, 12th Ed. § 1439; 2 Am.Jur.2d False Pretenses § 2 (1967). The traditional approach under this rule has been to hold that, in the absence of contrary statutory authority, a false representation as to future events or a false promise to perform in the future does not constitute a "false pretense". Rogers v. People, 161 Colo. 317, 422 P.2d 377 (1966); Martin v. State, 379 So.2d 179 (Fla.App.1980); Younkger v. State, 215 So.2d 318 (Fla.App.1968); Rowland v. Com., 487 S.W.2d 682 (Ky.1972); Reigert v. Com., 218 Va. 511, 237 S.E.2d 803 (1977); Hubbard v. Com., 201 Va. 61, 109 S.E.2d 100 (1959); Driver v. State, 589 P.2d 391 (Wyo.1979). The reason most often advanced in support of this position is that to permit prosecutions for false promises to perform in the future would encumber business affairs by subjecting debtors to the threat of criminal penalties, allow disgruntled creditors to retaliate with criminal prosecutions and require the trier of fact to look backwards from the failure to complete the performance to ascertain intent. Chaplin v. U. S., 81 U.S.App.D.C. 80, 157 F.2d 697 (1946).

Other jurisdictions, however, have consistently held that a false promise to perform in the future is a misrepresentation of a present state of mind and thus a misrepresentation of an existing fact sufficient to constitute a false pretense under the criminal statute. State v. Aurgemma, 116 R.I. 425, 358 A.2d 46 (1946); State v. McMahon, 49 R.I. 107, 140 A. 359 (1928). A growing number of jurisdictions have adopted this approach in rejecting the majority view. See People v. Ashley, 42 Cal.2d 246, 267 P.2d 271 (1954); State v. West, 252 N.W.2d 457 (Iowa 1977); Balsam v. Sheriff, 93 Nev. 315, 565 P.2d 650 (1977).

Perhaps the most instructive case is People v. Ashley, 42 Cal.2d 246, 267 P.2d 271 cert. denied, 348 U.S. 900, 75 S.Ct. 222, 99 L.Ed. 707 (1954), in which the Supreme Court of California, in an attempt to reconcile conflicting precedent in that jurisdiction, discussed at length the reasoning behind the majority rule and rejected it as unpersuasive. In an opinion by Justice Traynor, the California court discounted the idea that the difficulty of proving intent with respect to false promises would subject debtors to retaliatory criminal charges by vengeful creditors.

Any danger, through the instigation of criminal proceedings by disgruntled creditors, to those who have blamelessly encountered "commercial defaults" must ... be predicated upon the idea that trial juries are incapable of weighing the evidence and understanding the instruction that they must be convinced of the defendant's fraudulent intent beyond a reasonable doubt, or that appellate courts will be derelict in discharging their duty to ascertain that there is sufficient evidence to support a conviction.

The problem of proving intent when the false pretense is a false promise is no more difficult than when the false pretense is a misrepresentation of existing fact, and the intent not to perform a promise is regularly proved in civil actions for deceit. Specific intent is also an essential element of many crimes (footnote omitted). Moreover, in cases of obtaining property by false pretenses, it must be proved that any misrepresentations of fact alleged by the People were made knowingly and with intent to deceive. If such misrepresentations are made innocently or inadvertently, they can no more form the basis for a prosecution for obtaining property by false pretenses than can an innocent breach of contract. 267 P.2d at 282.

The fraudulent intent at the time of the making of the false promise must be shown by "something more than mere proof of nonperformance or actual falsity." See also People v. Fujita, 43 Cal.App.3d 454, 117 Cal.Rptr. 757 (1974); People v. Gibson, 275 Cal.App.2d 198, 79 Cal.Rptr. 693 (1969). Moreover, the court noted the inherent injustice of excluding false promise as a basis for prosecution.

If false promises were not false pretenses, the legally sophisticated, without fear of punishment, could perpetuate upon the unwary fraudulent schemes .... To hold that false promises are not false pretenses would sanction such schemes without any corresponding benefit to the public order. 267 P.2d at 283.

We find the reasoning of the Ashley court and of those jurisdictions falling in line with that decision persuasive. Persons guilty of nothing more than innocent breaches or ordinary defaults are protected from criminal prosecution by the requirement that the State prove beyond a reasonable doubt the fraudulent intent of the defendant at the time the promise was made. "(A) showing of nonperformance of a promise or falsity of a representation will not suffice." 267 P.2d at 283. At the same time, the public is shielded from the prospect of being unable to try and punish those who practice fraud and deceit in an artful manner. We hold, therefore, that when one makes a promise to perform in the future with the intent to cheat, defraud or deceive, such promise constitutes a misrepresentation of an existing fact which is indictable as a "false pretense" under W.Va.Code § 61-3-24 (1977). The indictment returned against appellant alleged sufficient facts on its face to charge the crime of obtaining money by false pretenses and the trial court was correct in refusing to quash the indictment on that ground. We turn now to appellant's assignments of evidentiary error.

Appellant assigns as error the admission by the trial court of the testimony of Mrs. Taylor respecting her physical health and that of her husband. Mrs. Taylor testified that she suffered from several physical ailments, including asthma, emphyzema, and serious ulcers, that she had to use a breathing machine and oxygen in her home, and that her condition had gradually worsened since 1965, when she became disabled. She also testified that her husband had died from a heart attack shortly before the case came to trial and that he had been ill during the period following the transaction. Appellant's objections to this testimony were overruled by the trial court.

We do not think this evidence bears any relation to the crime with which appellant was charged....