State v. Scott

• Decision Date: 06 January 1947
• Docket Number: 6936
• Citation: 111 Utah 9,175 P.2d 1016
• Court: Utah Supreme Court
• Parties: STATE v. SCOTT et al

175 P.2d 1016

111 Utah 9

STATE v. SCOTT et al

No. 6936

Supreme Court of Utah

January 6, 1947

Appeal from District Court, Third District, Salt Lake County Clarence E. Baker, Judge.

Ernest Ray Scott and others were convicted of obtaining money by means of a coin matching confidence game, and they appeal.

Affirmed.

Gustin & Richards, of Salt Lake City, for appellants.

Grover A. Giles, Atty. Gen., Herbert F. Smart, Deputy Atty. Gen., and Brigham E. Roberts, Dist. Atty., of Salt Lake City, for respondent.

Wolfe Justice. McDonough, Pratt, and Wade, JJ., concur. Larson Chief Justice (concurring-dissenting in part).

OPINION

Wolfe, Justice.

Appellants appeal their conviction of the crime of obtaining money by means of a coin matching confidence game.

Chapt. 18 of Title 103, U. C. A. 1943, is entitled: "False Personation and Cheats." Section 16 thereof reads:

"Every person who obtains or attempts to obtain from any other person any money or property by any means, instrument or device commonly called a confidence game shall be imprisoned in the state prison not more than ten years."

The appellants were found guilty of the above offense, upon an information and bill of particulars which charge as follows:

Information

"That the said Ernest Ray Scott, Wayne Meader, Charles L. Spencer and Louis Krevich, on the 2nd day of November, A. D. 1945, at the County of Salt Lake, State of Utah, did unlawfully and feloniously obtain from Lester Williams Scholes $ 110.00, the money of said Lester William Scholes, by means of and by use of a confidence game." (See Sec. 103-18-17 as to form.)

Bill of Particulars

"That at the time and place alleged in the Information, the defendants engaged Lester William Scholes in a dollar matching game, and in connection therewith induced the said Lester William Scholes to entrust $ 110.00 with them, the said defendants at such time intending to take said money and to appropriate it to the use of themselves, and the said defendants did not return said money but appropriated the same to their own use."

Defendant Krevich forfeited bail and failed to appear for trial. He is not an appellant before this court.

The appellants moved to quash the information upon the ground that the bill of particulars did not constitute the offense charged in the information. They also demanded a further bill of particulars to clarify uncertainties as they believed them to exist.

Their appeal is before this court upon 33 assignments of error raising questions of the sufficiency of the pleadings, the sufficiency of the evidence, and the admissibility of evidence.

In brief the facts are these: Krevich struck up an acquaintanceship with Scholes in a bus station. Scholes invited Krevich to have a drink. They left the bus station together and went to a saloon not far distant. Krevich offered to pay for the drinks as Scholes did not have any small change, but had a roll of bills totalling about $ 110.00. Krevich suggested they go to another saloon, as he thought the beer was better there. As they proceeded ostensibly for the other saloon, Spencer stepped up to them and made inquiry as to the location of the "Sweeny Hotel." Scholes and Krevich stated they were not familiar with its location. Spencer told of troubles with a girl with whom he had entrusted $ 20.00, and that he was so angry he had lost his way. Krevich invited him to have a drink with them. Spencer said he did not care for a drink, but would like some cigars. Krevich suggested they match dollars to see who should pay for the cigars. They matched and Krevich won. Scholes did not participate in this matching. Spencer asked for the opportunity to win his dollar back. They matched again. Krevich won again. Scholes did not participate in this matching either. Spencer wanted to try it again, if Scholes would get in. Krevich said to Spencer:

"What kind of a sport are you -- we [referring to Scholes and himself] will match for $ 20.00."

The three matched and Krevich won. Spencer and Scholes each paid him $ 20.00. Krevich slipped Scholes' $ 20.00 back to him. This act was seen by Spencer. He wanted to know if the other two were playing a game on him. They denied this, and Scholes again handed his $ 20.00 to Krevich. Spencer then told of some $ 5000.00 he had in his shoe that was hurting his foot. He stopped ostensibly to fix it, and Krevich handed Scholes a penny to hold heads up if Spencer returned and wanted to match again. Spencer came back and said he didn't want to be outdone by Yankies and would match again. Krevich wanted to know if he would match for $ 500.00. Spencer agreed. They matched. Krevich won. Spencer paid him five one hundred dollar bills, and, as Scholes paid nothing, Spencer made inquiry as to why. The result was that Scholes paid Krevich the balance of his $ 110.00 roll, and was to owe Krevich $ 410.00. This was the suggestion made by Krevich to Spencer, upon the theory that Scholes was a friend of Krevich and could be trusted. Spencer left, and Krevich told Scholes to go back to the bus station and they (he and Krevich) would divide the money up and Scholes could have his back. Krevich left. Spencer returned, still questioning Scholes about the transaction. Then Spencer and Scholes separated. Scholes never got to the bus station, as he was arrested by police officers. The police officers also followed Spencer and saw him again contact Krevich and the two of them walk together toward town.

Scott and Meader are brought into the picture this way: The officers of the Salt Lake City police force, becoming suspicious of the actions of these men and two others, had been watching them for several days. What they had seen was this: One or the other of the group would enter the bus station. He would reappear with some stranger. The two would move off down the street. Another defendant would contact them. There would be conversations, then the three would continue on together. In describing these scenes the officers indicated, by illustration, that the parties went through the motions of matching coins. The two who contacted the stranger were not always the same. One or two who were not acting as contact men were usually in the neighborhood, moving and stopping to keep the contact men and the stranger in view. The officers described the actions of these latter as if they were not only keeping watch on the contact men and the stranger, but were keeping watch on others in the locality. In the incident involving Scholes, Meader was some distance behind the three, keeping watch on them, while Scott was in an automobile across the street, keeping pace with the group.

1. Does the bill of particulars support the information? The gist of the bill of particulars is that defendants "induced" Scholes "to entrust $ 110.00 with them." The word "confidence" is not used, but to induce one to entrust money to another implies a confidence in the latter that the former will care for, use, or dispose of the money as intended. (See Webster's definition of "entrust".) The vehicle or means of obtaining that confidence in this case is alleged to be "a dollar matching game." The fact that the dollar matching game is gambling does not defeat the idea conveyed by the bill of particulars that Scholes' loss was not merely a gambling loss -- that his loss was due to his belief, arising out of the dollar matching game, that his money would be used as contemplated. There was something more than a mere gamble charged by the information and bill of particulars. The following quotation taken from People v. Snyder, 327 Ill. 402, 158 N.E. 677, 678, 56 A. L. R. 722, is the foundation for appellants' attack upon the pleadings in this case:

"Where the property is obtained by unlawful means other than by fraudulently obtaining the confidence of the victim and then abusing the confidence so obtained, a conviction for the confidence game cannot stand."

However, as indicated above, the pleadings here charge more than a loss of $ 110.00 by gambling. The Bill of Particulars definitely states that the defendants "in connection with" a dollar matching game "induced Lester William Scholes to entrust $ 110.00 to them."

2. Appellants in their request for further bill of particulars in effect, set out six reasons why the bill of particulars was insufficient to enable them to prepare their defense. How much detail is properly required to inform appellants of the offense with which they are charged? To clarify the six grounds of doubt, propounded by appellants, calls for nearly as much, if not as much detail as appears in this opinion under the statement of facts. It is not the function of the information and the bill of particulars to lay in the lap of the accused the evidence for the prosecution. Appellants were informed of the time, of the place, of the parties involved, and also of the nature of the offense as being the use of a dollar matching game to gain Scholes' confidence, the obtaining of his money by such means and their intention to appropriate that money to their own use, plus that appropriation. There is nothing in those details that needs greater particularization to indicate the nature of the offense. Coin matching is so commonly understood it needs no definition. There may be various ways that coin matching would have the desired psychological effect upon the alleged victim. In the present case, the evidence shows that Scholes' cupidity cast out his caution. It is certainly not incumbent upon the prosecution to set out facts that would give the measure of the alleged victim's gullibility. "Confidence game" as used in this alleged offense, is defined in the bill of particulars as a dollar matching game, used to gain Scholes' confidence. Whether is was hard or...