State v. Phillips
| Decision Date | 04 November 1907 |
| Citation | 36 Mont. 112 |
| Parties | STATE v. PHILLIPS. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Gallatin County; W. R. C. Stewart, Judge.
David Phillips was convicted of an attempt to obtain money by false pretenses, and he appeals. Affirmed.
J. L. Staats, for appellant.
Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen., for the State.
The defendant, charged by information with an attempt to obtain money by false pretense, was found guilty. He has appealed from the judgment of conviction. He alleges that he was prejudiced by the action of the court in overruling his demurrer to the information, and refusing to submit to the jury several instructions requested by him. The charge in the information is stated as follows: It is argued that the facts stated do not constitute a public offense, in that there is no averment that the pretense or representation made by the defendant was not true. Evidently the representation which the pleader intended to allege as the means by which the fraud was attempted was that the defendant was the brother of Charles Phillips.
In Territory v. Underwood, 8 Mont. 131, 19 Pac. 398, an indictment for obtaining money under false pretenses, found under a section of the criminal laws of the territory (Comp. St. 1887, div. 4, § 199), which is substantially the same as section 933 of the Penal Code, it was pointed out that it was necessary to allege (1) a false pretense or representation; (2) that it was made for the purpose of defrauding some person or corporation; (3) that the representation was not true; (4) that it was believed by such person; and (5) that the person was defrauded out of something of value, naming it and its value. In this case the offense was not complete. The charge is an attempt to commit the crime. Hence it was not necessary to allege that the person upon whom the fraud was attempted believed the representation, for it is immaterial whether he believed it or not. The crime of attempting to obtain money by a false pretense is complete whenever the false representation is made, with the requisite criminal intent, under such circumstances that, if the thing of value had been obtained, a deprivation would have been the result. In charging the attempt, therefore, the averments of belief and completion of the fraud are not essential. Otherwise the averments enumerated are essential. Does the information here by fair intendment negative the truth of the representation made by the defendant that he was the brother of Charles Phillips? The language is: “Whereas said David Phillips then knew that said pretenses were false.” By fair intendment this means that the representation was false, and that the defendant knew this to be so. This negation is aided by the additional expression, “And that by color and means of said false pretenses,” etc. While the information is not a model in this respect, we think the traverse is sufficient. Again, it is argued that the facts constituting the attempted fraud are not stated in sufficient detail. It is an elementary rule that, in pleading fraud, the facts constituting it, and not the legal conclusion, must be stated. But this does not require all of the facts to be set forth in detail, but only the ultimate probative facts. It is sufficient if the allegation be such as that a denial of it will present an issue as to its truth and require proof to establish it. Eliminating the averments touching the sending of the telegram, the charge is that the defendant willfully, etc., falsely pretended to Charles Phillips that he was his brother, etc. This alleges an issuable fact, and is sufficient, even though it be assumed that the pleader intended to allege that the representations were made by means of the telegram, but failed to use appropriate terms.
It is said that the information does not substantially conform to the requirements of section 1832 of the Penal Code, for that it does not contain a statement of facts constituting the offense, in ordinary and concise language, so as to enable a person of common understanding to know what is intended. What has already been said is sufficient to dispose of this contention. It is true that it is alleged that the representation was made to both Charles Phillips and Mary G. Jones. It is also alleged that the purpose was to defraud both of these persons, and also David Phillips, of Pony, Mont., the Western Union Telegraph Company, and others. The purpose of the statute is to require such a statement of the charge that the defendant may know what he has to meet and so be able to prepare his defense. The information notified him of the fact that he had made a false representation to both the first named persons, with intent to defraud them, as well as the others named and unnamed. It could do him no harm if the charge was not sufficiently specific to enable the state to offer proof of the averments as to the other persons. It was clear that he must meet the one charge as to Charles Phillips. It is sufficiently direct and certain as to this specific charge. It also sets forth the particular circumstances with sufficient detail to meet the requirements of section 1834 of the Penal Code. As before remarked, the information is certainly not a model. It is defective in form, and contains many averments that are immaterial; but these objections are not fatal, since it is apparent that they could not prejudice the defendant. Pen. Code, §§ 1842, 2600, 2320.
Counsel requested that the court instruct the jury that if they believe that the...
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State v. Hale
...of this case we have found no authority which sustains an information or indictment which alleges less. In this court State v. Phillips, 36 Mont. 112, 92 P. 299, 300, is the authority nearest in point with the state's argument; and although this decision is neither cited nor noticed in the ......
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State v. Wong Sun
...The assignments of error that were predicated on instructions were disregarded in that case. The rule was followed in State v. Phillips, 36 Mont. 112, 92 P. 299, 301, with a slight reservation to the effect that instructions the absence of the evidence from the record "may not be held erron......
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State v. Hay
...unless they appear to be so upon any supposable state of facts which might have been presented by the evidence’.' State v. Phillips, 36 Mont. 112, 92 P. 299, 301, as cited in State v. Wong Sun, 114 Mont. 185, 194, 133 P.2d 761, 764, citing cases. In the instant case the two instructions may......
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State v. Hay
... ... 230 ... 'Instructions ... in the absence of the evidence from the record [120 Mont ... 583] 'may not be held erroneous unless they appear to be ... so upon any supposable state of facts which might have been ... presented by the evidence'.' State v ... Phillips, 36 Mont. 112, 92 P. 299, 301, as cited in ... State v. Wong Sun, 114 Mont. 185, 194, 133 P.2d 761, ... 764, citing cases ... In the ... instant case the two instructions may have been directed at ... the prosecution witnesses and may have been actually ... beneficial to ... ...