State v. Mullen

• Decision Date: 06 June 1911
• Citation: 151 Iowa 392,131 N.W. 679
• Parties: STATE v. MULLEN.
• Court: Iowa Supreme Court

151 Iowa 392

131 N.W. 679

STATE

v.MULLEN.

Supreme Court of Iowa.

June 6, 1911.

Appeal from District Court, Wayne County; H. M. Towner, Judge.

Defendant was indicted, tried, and convicted of the crime of cheating by false pretenses, and from the judgment imposed appeals. Reversed.Tedford & Carter and Brown & Dolman, for appellant.

George Cosson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

DEEMER, J.

It is charged that by certain false and fraudulent representations and pretenses defendant secured from one A. G. Widmer a certain check for the sum of $5,000 in payment of 50 shares of stock in a corporation known as the Southwest Smelting & Refining Company, a corporation organized under the laws of New Mexico. The alleged representations were, in effect, as charged: (1) That the stock was of the par value of $100 per share. (2) That the indebtedness of the corporation did not exceed the sum of $10,000. (3) That the shares of stock were “treasury stock” owned by the company, the proceeds of which was to go into the treasury of the company to be used by it in paying its debts and improving its smelter and other properties, that each and all of these allegations were false and untrue, and that defendant knew them to be false when he made them, and that such representations were made to defraud. The indictment, as originally returned, charged: That defendant, pursuant thereto, did then and there “obtain from the said A. G. Widmer then and there money and property of the value of $5,000, in a bank check, drawn on the Farmers' & Drovers' State Bank, of Seymour, Iowa, and signed by the said A. G. Widmer, and then and there delivered to the defendants. A more particular description of said check is to this grand jury unknown. That said defendants did then and there present said check to the said Farmers' & Drovers' State Bank for payment, and received from said bank then and there currency, commonly called money, to the value then and there, of $5,000. A more particular description of said money is to this grand jury unknown. That said defendants well knew that said stock was of no value, that said false representations were made then and there for the express purpose of obtaining said money and property of said A. G. Widmer.”

This allegation was afterward amended when objection was made to the check offered in evidence so as to read as follows: “That the consideration given by A. G. Widmer, at Seymour, Iowa, on the 30th day of November, 1906, for the said 50 shares of stock was in the form of a check, in words and figures, as follows, to wit: ‘Seymour, Iowa, November 30, 1906. The Numa Block Coal Company. No. 1,454. Pay to the order of A. G. Widmer, $5,000.00, five thousand and no/100 dollars. The Numa Block Coal Company, by A. G. Widmer, Treasurer. To Farmers' & Drovers' State Bank, Seymour, Iowa.’ And which said check was then and there indorsed on the back as follows: ‘A. G. Widmer.’ And which said check was then and there of the value of $5,000, and was then and there the property of the said A. G. Widmer, and which said check was then and there obtained of and from the said A. G. Widmer, as stated and set out in the indictment herein and amendment thereto, and that said A. G. Widmer was induced to deliver the said check to the said R. G. Mullen and R. M. Nichols by and on account of the false pretenses stated and set out in the indictment herein.”

This amendment was filed over defendant's objections, with the permission of the trial court, and the ruling is challenged. As to this more hereafter. After a long trial defendant was convicted and sentenced to the state penitentiary for the term of three years. Something like 11 assignments are relied upon, and may of these are subdivided into sections. The argument, however, is directed to five main propositions, and such of these as are deemed important will receive our attention.

[1] 1. The indictment was challenged by motion in arrest of judgment, and it is argued with great assurance that it charges no offense known to the law. If it does not do so, the county attorney who drew it did not understand the use of language, for the indictment without the amendment covers nearly five closely printed pages of the abstract, each page containing the usual number of the words. The exact claim, as we understand it, is that, while enough words were used, they are disconnected, and never arrive at any conclusion or charge. It must be conceded that the charge is not stated in simple and concise language, and that the reader has to carry in memory a good many statements before reaching any direct charge; but, taken as a whole, we find all the elements necessary to constitute an offense included in the language used. It charges an intent to defraud, sufficiently sets out the pretenses, with sufficient accuracy states the ownership of the property obtained by defendant,adequately and with sufficient fullness states the real amount of the indebtedness of the corporation, states that the stock received by Widmer was worthless, alleges that the stock purchased was represented to be treasury stock, and alleges that the stock received by Widmer was not treasury stock. Some other points made against the indictment will be considered later, as they do not go to the indictment as a whole. Every essential allegation seems to have been made, and the court did not err in overruling the motion in arrest.

[2] 2. When the check which Widmer gave for the stock was introduced in evidence, defendant objected, for the reason that it was not the property described in the indictment. The trial court intimated that it would sustain the objection because of variance between the allegations and the proof. Thereupon the county attorney filed the amendment heretofore set out. The Thirty-Third General Assembly passed an act known as chapter 227, paragraph 7 of which reads as follows: “The county attorney may, at any time before or during the trial of defendant upon indictment, amend the indictment so as to correct errors in the name of any person or in the description of any person or thing, or in the allegations concerning the ownership of property that may be described in the indictment; but such amendment shall not prejudice the substantial rights of the defendant, or charge him with a different crime or different degree of crime from that charged in the original indictment returned by the grand jury.” The amendment comes within the terms of this statute.

[3] But defendant contends that the statute is invalid and unconstitutional. Such statutes have uniformly been sustained in the face of like claims. See Commonwealth v. Holley, 3 Gray (Mass.) 458;Miller v. State, 68 Miss. 221, 8 South. 273;Peebles v. State, 55 Miss. 434;State v. Schricker, 29 Mo. 265;Rough v. Commonwealth, 78 Pa. 495;People v....