State v. Smith

• Decision Date: 22 November 1913
• Citation: 144 N.W. 32,162 Iowa 336
• Parties: STATE OF IOWA, Appellee, v. JOHN H. SMITH, Appellant
• Court: Iowa Supreme Court

144 N.W. 32

162 Iowa 336

STATE OF IOWA, Appellee, v. JOHN H. SMITH, Appellant

Supreme Court of Iowa, Des Moines

November 22, 1913

Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.

DEFENDANT was indicted, tried, and convicted of the crime of obtaining money by false pretenses. He appeals.

Affirmed.

Franklin & Miller, for appellant.

Geo Cosson, Attorney General, and John Fletcher, Assistant Attorney General, for the State.

PRESTON J. WEAVER, C. J., and LADD and EVANS, JJ., concur.

OPINION

PRESTON, J.

Defendant falsely represented that he was the owner of certain real estate in Des Moines, Iowa. By such false representations, he obtained $ 5,000 from one Thorley, agreeing to give his note therefor and a deed back, which was to be held for a year unless defendant should sooner pay to Thorley the sum of $ 5,000. A note for this amount, together with a deed from defendant and a contract signed by him, were sent by mail to Thorley in Nebraska. The note was not paid, and defendant did not own the property. About September, 1908, defendant went to the home of Thorley, near Springview, Neb., to see Thorley's daughter. At that time defendant said to Thorley that he was on a deal and might want to use some money, and asked if he could get it of Thorley. Later, and on September 23, 1908, defendant wrote Thorley from Des Moines, Polk county, Iowa a letter which contains the false representations; the deed also recited that defendant was the owner of the real estate. The deed, note, and contract, before referred to were inclosed in this letter. The letter and other papers were received by Thorley at Springview, Neb. Mr. Thorley drew his check for $ 5,000, dated October 2, 1908, and mailed it at his home to defendant at Des Moines, with a letter. The check was drawn on the Whitney Bank at Atlantic, Cass county, Iowa and was payable to the order of defendant. It was presented to the Century Savings Bank in Des Moines by defendant October 5, 1908, for credit, and deposited by him and credited in his account for the amount of the check. The money was drawn out in the regular course of business by checks drawn by defendant against his account. The Century Savings Bank did not send the check to the Whitney Bank, but received the money through the clearing house. The Des Moines bank received credit for it, and guaranteed to reimburse the bank paying it if not paid by the Whitney Bank. The check went through in the regular way; the Whitney Bank either sent the money to their correspondent or paid the money. The cancellation stamp shows payment by the Whitney Bank October 6, 1908. There was another letter from defendant to Thorley after the transactions just narrated, and other evidence as to the title, and other matters which are not necessary to a determination of the points raised. As stated, the check was deposited in the Des Moines bank by defendant on October 5, 1908. The indictment was returned October 5, 1911, which defendant contends was not in time. Defendant introduced no evidence. There is therefore no dispute as to the facts. Defendant moved the court for a directed verdict, which was overruled, and after the jury returned a verdict of guilty he moved in arrest of judgment on the ground that the court had no jurisdiction because the money was received and obtained by defendant, if at all, in Cass county, and not in Polk county. This motion was also overruled, and judgment pronounced.

I. Defendant contends that if either the false pretenses were made in Polk county, or the money was obtained in Polk county, more than three years elapsed prior to the finding of the indictment, and he cites, as sustaining his contention: People v. Wood, 10 N.Y. Leg. Obs. 61; State v. Asbury, 26 Tex. 82; Norris v. Hundred de G., 1 Brownlow & G. 156 (Hobart, 139).

Our statute (section 48, par. 23) provides as follows: "In computing time, the first day shall be excluded and the last included, unless the last falls on Sunday, in which case the time prescribed shall be extended so as to include the whole of the following Monday." The statute makes no distinction between civil and criminal actions. Code, section 5371, provides: "All the provisions relating to mode and manner of the trial of civil actions, report thereof, translation of the shorthand reporter's notes, the making such report and translation a part of the record, and in all other respects, apply to the trial of criminal actions." Code, section 5483, provides: "The rules of evidence prescribed in civil procedure shall apply to criminal proceedings as far as applicable and not inconsistent with the provisions of this chapter." These provisions of the statute do not have an exact bearing, perhaps, but indicate that the same rule applies in criminal as in civil cases, unless otherwise provided. The later cases seem to hold that the method of computing time applies to criminal, as well as civil, cases. Richter v. State, 156 Ala. 127 (47 So. 163); State v. Fleetwood, 143 Mo.App. 698 (127 S.W. 934; 49 L. R. A. at 224, note).

We see no reason why it should not be so. If the money was obtained by defendant on October 5, 1908, the indictment was in time. Whether it was obtained on that date will be considered later.

II. The court instructed the jury that if they found that the check was cashed on the 6th day of October, 1908, they might then find that the indictment was brought within three years after the commission of the offense. Counsel says: "Just why the court gave this instruction we do not understand, for the evidence shows, without contradiction, that the check was cashed by the defendant on the 5th day of October, and at no other time." The check was cashed by defendant in Polk county on October 5th and by the bank in Cass county on October 6th. Doubtless the court gave this date from inadvertence. Counsel concedes, if it was cashed on October 6th, the indictment was in time. It was either the 5th or 6th, and, if it is held that defendant obtained the money in Polk county on October 5th, we cannot see that defendant was prejudiced by the court giving the date as October 6th.

III. There was no error in admitting the testimony of Mrs. Garner. Appellee has filed an additional abstract as to this, and it appears that she detailed to defendant the conversation she had with her husband in regard to selling the property.

IV. The point most strongly contended for by appellant is that the district court in Polk county had no jurisdiction; that the money was not obtained in Polk county, nor the false pretenses made in that county; that defendant should be held to answer, if at all, in Cass county, where the check was ultimately paid by the bank upon which it was drawn. He relies on the following cases: State v. Gibson, 132 Iowa 53, 106 N.W. 270; Graham v. People, 181 Ill. 477 (55 N.E. 179, 47 L. R. A. 731); State v. Briggs, 74 Kan. 377 (86 P. 447, 7 L. R. A. [N. S.] 278, 10 Ann. Cas. 904); Com. v. Pettes, 114 Mass. 307; Com. v. Wood, 142 Mass. 459 (8 N.E. 432); Com. v. Taylor, 105 Mass. 172; State v. Lichliter, 95 Mo. 402 (8 S.W. 720); Norris v. State, 25 Ohio St. 217 (18 Am. Rep. 291); Lindsey v. State, 38 Ohio St. 507; People v. Griffin, 2 Barb. 427; State v. Shaeffer, 89 Mo. 271 (1 S.W. 293); Connor v. State, 29 Fla. 455 (10 So. 891, 30 Am. St. Rep. 126); People v. Adams, 3 Denio 190 (45 Am. Dec. 468); Stewart v. Jessup, 51 Ind. 413 (19 Am. Rep. 739); People v. Rathbun, 21 Wend. 509; In re Carr, 28 Kan. 1; State v. Round, 82 Mo. 679; Com. v. Van Tuyl, 58 Ky. 1 (71 Am. Dec. 455).

These cases hold to the general rule that the crime of false pretenses is completed where the goods or money is obtained and that, if the pretenses are made within one jurisdiction and the money or property is obtained in another, the person making the representations must be indicted within the latter jurisdiction. Some of these cases proceed on the theory that where a party is indicted for obtaining a draft, and the representations are made in one county and the draft is mailed in another, the party from whom the draft is obtained surrendered possession of it by placing it in the post office, addressed to the party obtaining the money; that, under such a state of facts, the Post Office Department is deemed to be the agent of the party receiving it, in the same way that a common carrier would have been his agent if the draft had been given to it for delivery to him. State v. Briggs, supra; Com. v. Wood, supra. And so, where merchandise is obtained under such circumstances, it has been held that the venue is in the county where the goods were delivered to the carrier, on the theory that a delivery to the carrier is a delivery to the consignee. Com. v. Taylor, supra. Under that doctrine, if it applies here, defendant should have been indicted in Nebraska, and not in Cass county, Iowa as defendant contends, or in Polk, as the state claims. But, as stated, defendant contends that the venue should be laid in the county where defendant obtained or received the money, which he says is in Cass county where the check was finally paid by the bank upon which it was drawn. And that is the question in the case, whether he received the money in Polk or Cass county. That his depositing it to his account in the Des Moines bank in the manner shown is equivalent to his getting the money is not questioned by appellant. But his claim is that Thorley was not defrauded until the bank upon which the check was drawn had paid it and charged it to Thorley's account. This matter will be referred to later, but we suggest now that the moment defendant negotiated it to the Des Moines bank Thorley became absolutely liable; there being no question as to its negotiability. In the cases cited there was no question, as here, that...