State v. Ritchie

• Decision Date: 25 May 1931
• Docket Number: 31187
• Court: Louisiana Supreme Court
• Parties: STATE v. RITCHIE

136 So. 11

172 La. 942

STATE v. RITCHIE

No. 31187

Supreme Court of Louisiana

May 25, 1931

Rehearing Denied June 22, 1931

Appeal from Criminal District Court, Parish of Orleans; A. D Henriques, Judge.

Hugh Ritchie was convicted of obtaining money bye false pretenses and he appeals.

Affirmed.

Hugh M. Wilkinson and Fred W. Oser, both of New Orleans, for appellant.

Percy Saint, Atty. Gen., E. R. Schowalter, Asst. Atty. Gen., and Eugene Stanley, Dist. Atty., and Warren O. Coleman, Asst. Dist. Atty., both of New Orleans, for the State.

OPINION

ODOM, J.

The defendant was charged in a bill of information with the embezzlement of $ 350, the property of the Menger-Fisher Motor Company, and on trial was convicted of the crime of obtaining said amount by false pretenses. He was sentenced to serve one year at hard labor, and appealed.

(1) We find in the record four bills of exception. Bill No. 1 was reserved to the ruling of the court permitting the state to introduce testimony showing that the accused had been guilty of other transactions similar to the one for which he was being prosecuted, the purpose of the testimony being to show system and intent.

This testimony was objected to by the defendant on the ground that the state had not proved the corpus delicti; that the testimony offered by the state did not show that defendant had committed the crime of embezzlement, or any other crime or offense denounced by the laws of this state; and that, unless and until some testimony tending to establish defendant's guilt of the particular crime charged was offered, the state could not offer testimony concerning independent and unrelated transactions as proof of intent.

Attached to and brought up with this bill is the testimony upon which the state relied as establishing defendant's guilt. It shows that defendant held some official position which enabled him to become familiar with the method of collecting personal property taxes in the city of New Orleans, and also to gain access to the city tax collector's office and his books. Having such knowledge, and being offered such privileges, he proceeded to engage in a scheme now commonly referred to as a "tax racket" or swindling device, the modus operandi of the system being substantially as follows:

From the assessment rolls, the city tax collector made duplicate statements showing the amount of personal property taxes due by each taxpayer, one of which was sent to the taxpayer and the other placed in a loose-leaf record book, and kept in the office. Upon receipt of the amount due by the taxpayer, the tax collector removed the statement from the record book, stamped it "Paid," and delivered it to the taxpayer. Defendant, after ascertaining the amount of personal property taxes due by various concerns and individuals, would then make propositions to the taxpayers to have their tax bills settled at greatly reduced figures. He did not explain how he would make the settlements, but, in substance, his proposition was that if the taxpayer would pay him a certain amount, always less than the amount due, he would settle the bills and deliver to them evidence of the payment of the taxes. If his proposition was accepted, he would go to the tax collector's office, extract from the records the statements above referred to and deliver them to the taxpayer and receive the amount agreed upon, which he kept. The tax collector, being left without any record, made no further demand on the taxpayer. Thus the defendant was enriched to the extent of the amount he received, the taxpayer was relieved of a portion of his tax debt, and the city got nothing.

The transaction out of which this prosecution arose was as follows: The Menger-Fisher Motor Company owed taxes for the year 1928 amounting to $ 733.98, plus interest and costs, making the total amount due on October 26, 1929, the sum of $ 866.70. The defendant proposed to Mr. Feehan, an employee of the tax debtor, that if the company would pay him $ 350 he would have the tax debt canceled. Mr. Feehan submitted the proposition to the company, and, upon its acceptance, the company drew its check for $ 350 made payable to Hugh Ritchie, the defendant, and delivered it to Feehan. Feehan, with the check in hand, met Ritchie in front of the City Hall, where the tax collector has his office. The two went to the bank on which the check was drawn and there Feehan delivered to Ritchie the check, which he cashed, and at the same time, Ritchie delivered to Feehan certain documents which he says he took to be tax receipts. Just what these documents were is not disclosed, as they seem to have been lost. But whatever they were, Feehan understood that they were documents evidencing the settlement of the tax bill due by the tax debtor.

Subsequently, the city had its books checked and audited by experts, who discovered that the Menger-Fisher Motor Company had not paid its taxes for 1928. Whereupon demand was made by the city on the company, and the full amount of the tax was paid by it.

After all these facts were brought out by the prosecuting attorney, he called witnesses to prove that defendant had been guilty of similar practices in other cases. This testimony was offered for the purpose of "showing criminal intent, system and guilty knowledge." The testimony was admitted over defendant's objection, the court giving the jury the following charge relative thereto:

"I charge you gentlemen that the evidence of other crimes similar to that charged is relevant and admissible to show system as well as a particular criminal intent on the part of the accused, but not to prove the offense charged, and you are not to consider it except for the purpose of showing guilty knowledge and intent."

The ground upon which defendant's counsel objected to the introduction of this testimony was that the testimony already introduced by the state did not show that defendant had committed any criminal offense known to law.

Defendant was being prosecuted for the crime of embezzlement. Article 407 of the Code of Criminal Procedure reads as follows:

"Art. 407. Whenever larceny, embezzlement, obtaining by false pretenses or swindling is charged in an indictment, a verdict of guilty of any one of these offenses is responsive; provided, the verdict of guilty shall not be for a greater offense than is within the jurisdiction of the judge or jury."

The testimony offered by the state showed that defendant had obtained the sum of $ 350 from the Menger-Fisher Motor Company, and the circumstances under which it had been obtained were detailed in full. Whether the defendant obtained this amount with criminal intent, whether his obtention of the money under the circumstances disclosed, constituted embezzlement, larceny, obtaining by false pretenses, or swindling, were matters for the jury to determine, under proper instructions by the court as to the law applicable. Under the Code, the jury was authorized to convict the defendant of any one of the crimes above mentioned, if, in their opinion, the testimony warranted a verdict. It was not within the province of the trial judge to pass upon the guilt or innocence of the accused. He was of the opinion that the state had introduced sufficient testimony to warrant the reception of evidence showing system and intent. We concur in his conclusion.

But it is argued on behalf of the accused that, in order to obtain the $ 350, he merely promised or pretended that he would do something in the future, which is not a crime, even though the pretenses were false. If the defendant did no more than falsely pretend that he could or would do a certain thing or act at a future time, and by such pretensions obtained the amount, he did not commit the crime of obtaining by false pretenses, as denounced by section 813 of the Revised Statutes, which reads as follows:

"Whoever, by any false pretence, shall obtain, or aid and assist another in obtaining, from any person, money or any property, with intent to defraud him of the same, shall, on conviction, be punished by imprisonment at hard labor or otherwise, not exceeding twelve months."

For one to be guilty of the crime denounced by this section of the statutes, he must obtain money or property from another by falsely pretending or representing that a certain thing, condition, or fact then exists or has existed in the past. The pretenses or representations must necessarily relate to existing or past conditions or events, and not to future promises.

See State v. Antoine, 155 La. 120, 98 So. 861, and the many authorities there cited.

According to the testimony brought up and the per curiam of the trial judge, "the defendant Ritchie handed to the witness, Feehan, a tax bill representing that the 1928 personal property tax of said corporation had been paid." When this tax bill was handed to Feehan, he delivered to Ritchie the check, which was then and there cashed and the money received. The defendant was therefore guilty of pretending or representing that a certain act had been performed, that a certain condition then existed; that is that the company's 1928 taxes were paid, which admittedly was not true.

We find no merit in this bill.

(2) Bill No. 2 was reserved to the following charge delivered to the jury by the trial judge: "Whenever larceny embezzlement, obtaining by false pretenses or swindling is charged in an indictment a verdict of guilty of any one of these offenses is responsive; provided the verdict of guilty shall not be for a greater offense than is within the...