State v. Morris

• Decision Date: 28 December 1934
• Docket Number: 5260
• Court: Utah Supreme Court
• Parties: STATE v. MORRIS

38 P.2d 1097

85 Utah 210

STATE v. MORRIS

No. 5260

Supreme Court of Utah

December 28, 1934

Appeal from District Court, First District, Cache County; M. C Harris, Judge.

G. R Morris was convicted of obtaining money in excess of $ 50 by fraudulent and false representations and pretenses, and he appeals.

Reversed and remanded with directions.

Geo. C Heinrich, of Logan, for appellant.

Geo. P. Parker, Atty. Gen., and Byron D. Anderson, Deputy Atty. Gen., for the State.

ELIAS HANSEN, Justice. STRAUP, C. J., and FOLLAND and EPHRAIM HANSON, JJ., concur. CHRISTENSEN, District Judge, dissents. MOFFAT, J., did not participate.

OPINION

ELIAS HANSEN, Justice.

Defendant was charged with, convicted of, and sentenced to serve an indeterminate term in the State Prison for the crime of obtaining money in excess of $ 50 by fraudulent and false representations and pretenses. He appeals. Numerous alleged errors are assigned, only one of which needs be considered and disposed of on this appeal. At the conclusion of the state's evidence, defendant moved the trial court to direct the jury to render a verdict of not guilty. The motion was denied. Such ruling is assigned as error. In the main the facts upon which the conviction of the defendant rests are not in dispute and are as follows: During the year 1930 the defendant was the general manager of the Johnson Nuttall Motor Company, a Utah corporation. Such corporation was engaged in the business of selling at retail and repairing automobiles at Logan, Utah. In order to secure funds with which to operate its business, the Johnson Nuttall Motor Company from time to time sold and assigned its contracts for the sale of automobiles to the General Contract Purchase Corporation. During the latter part of the year 1930 the motor company was the owner of two used Hudson sedan automobiles. Each of such automobiles was of the value of at least $ 600. Early in November, 1930, a Mr. Clark went to the motor company for the purpose of purchasing an automobile. After some negotiations he and the motor company executed a written agreement dated November 6, 1930, whereby Clark agreed to buy, and the motor company agreed to sell, one of the Hudson sedan automobiles. As a down payment on the automobile, Mr. Clark transferred to the motor company a Ford automobile for which he was given a credit of $ 285. By the terms of the contract for the sale and purchase of the Hudson automobile, Clark was to pay $ 376.68 in twelve monthly installments of $ 31.39 each; the first installment to be paid one month after the date of the contract. The contract provided that the title to the Hudson automobile should remain in the motor company until the whole of the purchase price thereof was paid. Upon the execution of the contract the Hudson automobile was delivered to Clark. Early in the December following, Mr. Clark returned the Hudson automobile to the motor company for some repairs. While the automobile covered by the contract dated November 6, 1930, was being repaired, the other Hudson automobile was delivered to Mr. Clark and he used the same. On December 3, 1930, Mr. Clark and the motor company executed another contract by the terms of which Mr. Clark purported to buy, and the motor company purported to sell, the other Hudson sedan automobile so owned by the motor company. The contract of November 6th and the contract of December 3d were the same excepting as to the number and motor number of the respective automobiles. Defendant executed each of the contracts for and on behalf of the motor company. Soon after the contract of December 3d was executed, the defendant for and on behalf of the motor company sold and assigned such contract to the General Contract Purchase Corporation and received therefor the sum of $ 315. The assignment so made reads as follows:

"For value received, the undersigned does hereby sell, assign and transfer to General Contract Purchase Corporation, his, its or their rights in and to the above contract and the Motor Vehicle referred to therein and authorizes said Corporation to collect the amounts due thereunder and give receipt and acquittance therefor.

"To induce said Corporation to discount or purchase the note referred to in said contract and to accept this assignment, undersigned warrants that said Motor Vehicle is new and unused (unless otherwise stated in said contract) and that the down payment was made by Buyer in cash and not its equivalent, except as otherwise stated in said contract, and that no part thereof was loaned to Buyer by undersigned. Undersigned agrees that neither repossession of said Motor Vehicle from Buyer for any cause, nor failure to file or record this contract when required by law (it being the duty of undersigned to file or record the contract), shall release undersigned from the obligation of this assignment. Undersigned warrants that title to said Motor Vehicle is free and clear of all liens and encumbrances and that undersigned has the right and power to assign such title by its assignment. Undersigned represents Buyer is over 21 years of age, that he is of good reputation, that he believes Buyer is financially able to pay the money obligation of said contract, that Buyer will not use or permit the use of said Motor Vehicle in violation of any laws and warrants that the representations on Buyer's statement are true. General Contract Purchase Corporation is hereby authorized to correct patent errors in said contract."

The automobile described in the contract assigned by the motor company to the purchase corporation remained for the most part in the possession of the motor company up to the time of the trial of this cause. So far as is made to appear there was no lien or encumbrance on that automobile.

The state offered evidence tending to show that defendant prepared the contract of December 3, 1930; that he informed Clark that the contract of December 3d covered the same automobile as was covered by the contract of November 6th; that if Clark would sign the contract of December 3d he would have an additional month in which to make his first payment and the original contract would be destroyed; that relying upon such representation so made by the defendant, Clark signed the contract of December 3d; that...