State v. Pickus

• Decision Date: 15 November 1934
• Docket Number: 7500
• Citation: 257 N.W. 284,63 S.D. 209
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. HERMAN PICKUS, Appellant.
• Court: South Dakota Supreme Court

63 S.D. 209

257 N.W. 284

STATE OF SOUTH DAKOTA, Respondent,

v.

HERMAN PICKUS, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Day County; Hon. James McNenny, Judge #7500—Reversed. Williamson, Smith & Williamson, E. B. Harkin, F. W. Noll, Aberdeen, SD Attorneys for Appellant. Walter Conway, Attorney General James Brown, Assistant Attorney General, Pierre, SD H. O. Hepperle, Aberdeen, SD P. C. Morrison, Mobridge, SD Attorneys for the State. Opinion filed Nov 15, 1934

CAMPBELL, J.

Defendant was a partner in a firm known as H. Pickus Construction Company which had built a number of bridges for Brown County. An indictment was returned against him on September 3, 1931, in six counts, each count having relation to a different bridge. Count 1 alleges the contract for the construction of a certain bridge, concrete to be paid for at the rate of $23 per cubic yard, and structural steel at the rate of 43/4 cents per pound. That defendant on October 3, 1928, “designedly and with intent to cheat and defraud the said county of Brown ... did present ... a final account and verified claim in writing ... in which the said Herman Pickus did falsely and fraudulently represent and state” that there was used in the construction of said bridge a certain amount of concrete and a certain amount of structural steel “whereas in truth and in fact, as said Herman Pickus at said time well knew,” there was used a lesser amount of concrete and a lesser amount of steel. That the county commissioners of said county, “believing that said verified claim was just and true and relying thereon, allowed. the said claim” and caused to be paid to the construction company $714.59 more than was due for the construction of the bridge, “and the said Herman Pickus thereby procured and obtained for the said H. Pickus Construction Company from the said Brown county ... the sum of $714.59 by false pretenses of said Herman Pickus contrary to the form of the statute in each case made and provided,” etc. Count 2 is similar, alleging with reference to a second bridge the securing of an excess payment of $1,165.39 by false final account and claim filed November 7, 1928. Count 3 referring to a third bridge alleges the securing of an excess payment of $583.13 by false final account and claim filed September 4, 1928. Count 4 referring to a fourth bridge alleges the securing of an excess payment of $574.10 by false final account and claim filed August 6, 1928. Count 5 referring to a fifth bridge alleges the securing of an excess payment of $810.42 be false final account and claim filed August 6, 1928. County 6 referring to a sixth bridge alleges the securing of an excess payment of $1,433.00 by false final account and claim filed December 3, 1929.

Defendant’s motion to quash and set aside the indictment having been denied, and his demurrer thereto having been overruled, the case proceeded to trial upon his plea of not guilty.

At the close of all the testimony, the court advised a verdict upon counts 4 and 5 because the crimes therein charged, if in fact they had been committed at all, had been committed more than three years prior to the filing of the indictment, but instructed the jury that the evidence relating to those counts might be taken into consideration by the jury with all the evidence in the case as going to the question of the design or knowledge of the defendant in determining his guilt or innocence on the other four counts. In submitting the four remaining counts to the jury, the only instructions given by the court specifically relating to the offense of obtaining money by false pretenses were the following:

“Under the law of this state, every person who, designedly, by color or aid of any false token, writing or other false pretense, obtains from any person, (which would include the county), any money or property, is guilty of obtaining money or property under false pretenses.

“The three principal elements involved in the crime of obtaining money by false pretenses are, first, that the money must have been obtained by means of a false writing or other false pretense, second, that the money must have been parted with by the person who paid it out in this case the county under the belief that the false writing or false pretense was in fact true, and in reliance thereon, and third, that the defendant at the time he presented the false writing or made the false pretense and at the time he received the money knew that the writing or other pretense was false. Each and every one of these elements must be established by the evidence in the case beyond a reasonable doubt before the crime is established.

“The Court further instructs the jury that pretense in any of the counts of this indictment could not be designedly false, without at the same time, being knowingly false, and in order to find the defendant guilty of the charges contained in any of the Counts of this Indictment, it is necessary for the jury to find, beyond a reasonable doubt, that the defendant knew such pretenses were, in fact false, at the time he made them. If the accused honestly believed in the truth of the representation made although it may have been false, the offense is not committed. But making a statement that is in fact false recklessly without information to. justify a belief in its truth is equivalent to making a statement knowing it to. be false.”

As to counts 4 and 5 the only forms of verdict given to the jury were “not guilty.” As to counts 1, 2, 3, and 6, the court gave to the jury two forms of verdict applicable to each count, which may be exemplified by the forms submitted in relation to count 1; those on the others counts being identical excepting for the number of the count. Such forms, omitting the title of the case, were as follows:

“We, the Jury in the above entitled cause find the defendant Herman Pickus guilty of obtaining money by means of false pretenses as charged in Count One of the information and we find that the amount of money of which the County was thereby defrauded was the sum of $---.

“Dated this ___ day of March, 1932.

“Foreman.

“We, the jury in the above entitled cause find the defendant not guilty on Count One.

“Dated this ___ day of March, 1932.

“Foreman.”

The court further instructed the jury as to counts 1, 2, 3, and 6, that, if they should find the defendant guilty on any of said counts, they should determine and insert in the verdict in the blank space therefor the amount of money of which the county was defrauded by the false pretense embraced in that particular count.

The jury duly returned the verdicts of “not guilty” on counts 1, 3, 4, 5, and 6. As to count 2, the jury made use of the form provided by the court for a verdict of guilty, but, in addition to filling the blank left to indicate the amount of money of which the county was defrauded (which blank they filled by inserting the figures 2,000), the jury also inserted between the words “money” and “by” in the second line the words “recklessly without information to justify truthfully, did obtain,” so that the verdict of the jury duly dated and signed by the foreman and returned with reference to count 2 of the information read as follows:

“We, the jury in the above entitled cause find the defendant Herman Pickus guilty of obtaining money recklessly without information to justify truthfully, did obtain by means of false pretenses as charged in Count Two of the information and we find that the amount of money of which the County was thereby defrauded was the sum of $2,000.00.” Thereafter the defendant moved the court to enter judgment discharging the defendant upon the verdict returned by the jury on count 2 and moved in arrest of judgment thereon upon the following grounds, among others:

“That the verdict of the jury is defective and unintelligible and is insufficient in form and substance and is not sufficient upon which to base a judgment of the Court; that said verdict is neither general nor special, does not find the defendant guilty of any felony under the statutes of the State of South Dakota, and is indefinite and wholly omits the elements of the crime of obtaining property by false pretenses; that said verdict omits the finding on the essential element of the crime of false pretenses, to-wit: the element of ‘design,’ and, is not responsive to the issues as made up of the Indictment and the plea of ‘not guilty.’

“That the verdict so negatives essential elements of the crime of obtaining money by false pretenses, as defined by the statutes of South Dakota, as to constitute a finding of innocence when measured by the statutes and the record in said cause as a whole, and the Court is bound under the law to enter a judgment finding the defendant ‘not guilty’ and to discharge said defendant from custody.”

Both motions were denied, and the court proceeded to enter judgment upon the verdict returned by the jury with reference to count 2, sentencing the defendant to the term of three years in the penitentiary and imposing upon him a fine in the sum of $6,000, together with costs, from which judgment and from the denial of his application for a new trial, defendant has here appealed.

Appellant first predicates error on the denial of his motion to quash and the overruling of his demurrer, by which proceedings in the court below he challenged the legality of the grand jury and the sufficiency of the indictment against him. We adopt for the purposes of this opinion the statement of facts relating to the drawing, summoning, and impaneling of the grand jury, which is set forth in appellant’s brief in the following language:

“No order of any character for the calling of a grand jury was made prior to the convening of the regular May, 1931, term of court. No grand jury was called, summoned, or subpoenaed prior to the opening of said term. There was on file in the office of the clerk, prior to said term, the regular jury...