State v. So

• Decision Date: 09 May 1951
• Docket Number: No. 7644,7644
• Citation: 231 P.2d 734,71 Idaho 324
• Parties: STATE v. SO.
• Court: Idaho Supreme Court

Page 734

231 P.2d 734

71 Idaho 324

STATE v. SO.

No. 7644.

Supreme Court of Idaho.

May 9, 1951.

B. A. McDevitt, Pocatello, for appellant.

Robert E. Smylie, Atty. Gen., Blaine F. Evans, William H. Bakes, Assts. Atty. Gen., Henry McQuade, Pros. Atty., Hugh C. Maguire, Pocatello, for respondent.

KEETON, Justice.

On April 14, 1949, a criminal complaint was filed in a Justice Court of Bannock County, charging Joe Nakamura, alias James Lee (referred to in the transcript of the proceedings as Montana Joe and Joe Montana); Tom Wong, alias Edwin T. So, defendant in the trial court, appellant here; John Doe Juan and John Doe Reyes, often referred to in the transcript of the proceedings as the Filipino, with the crime of obtaining money under false pretenses. Sec. 18-3101, I.C. Appellant Mr. So, alias Tom Wong, as far as the transcript shows, is the only one of the three ever apprehended. Mr. So was given a preliminary examination and bound over to the District Court for trial. The complaining witness Paul Okamura claimed in the proceedings taken that he had been victimized by defendant and others, in a con game and separated from the sum of $5000.

Mr. So was tried before a jury and by verdict found guilty. The trial court sentenced him to serve a term of imprisonment in the state penitentiary. From this judgment he appealed.

Appellant assigns thirteen alleged errors, some of which are simply a restatement, in different language, of the propositions contended for in other assignments. Hence, all assignments will not be treated separately, but will be grouped for the purpose of discussion. The answer to one of the questions submitted being, in effect, an answer to some of the other contentions made.

Appellant contends that the amended information filed does not charge a crime and fails to state in ordinary and unambiguous language the essential elements of fraud, and that the representations alleged to have been made (hereinafter set forth) to the complaining witness and victim Okamura, were not of a present or past nature.

The amended information charged that Mr. So, by false and fraudulent pretenses and representations, and with intent to cheat and defraud Mr. Okamura, represented to him (Okamura) that a certain parcel in a cardboard container was of a value in excess of $5000, when in fact, it had a value of less than $5, which Mr. So well knew, and that Okamura being thereby deceived, by false and fraudulent pretenses and representations, was induced to deliver to Mr. So the sum of $5000 (the money was actually delivered to a coconspirator).

To constitute the offense of obtaining money under false pretenses, four essential elements must be charged: there must be an intent to defraud, there must be an actual fraud, false pretenses must be used for the purpose of perpetrating the fraud, and the fraud must be accomplished by means of such false pretenses.

The information contained all essential, necessary averments, and the demurrer to the information was properly overruled. See State v. Stratford, 55 Idaho 65, 37 P.2d 681; State v. Stevens, 48 Idaho 335, 282 P. 93; State v. Whitney, 43 Idaho 745, 254 P. 525.

Appellant contends that a motion to quash the information should have been sustained because of matters which allegedly occurred at the preliminary hearing of appellant. No authority to sustain this contention has been cited.

The defendant, before the committing magistrate, was charged with others that the crime of obtaining money under false pretenses. He was held to answer to the district court. The proceedings before the committing magistrate and the evidence introduced at that hearing to show a crime had been committed and that there was sufficient cause to believe Mr. So guilty, cannot be attacked in the manner attempted here. Neither can the evidence taken before the committing magistrate be now re-examined to determine whether there was probable cause to hold defendant. State v. Foell, 37 Idaho 722, 217 P. 608; State v. Hunt, 57 Idaho 122, 62 P.2d 1372. The motion to quash was properly denied.

Appellant assigns as error the order in which the proof was submitted and admitted in the proceedings in the district court and contends that it was necessary to establish some joint enterprise, conspiracy or mutual activity of other parties to the crime before conversations and the doing of the others at which he was not present could be admitted in evidence.

The rule covering the situation is stated in 11 Am.Jur. 575, Sec. 42, as follows: '* * * The order of proof is not very material; it is discretionary with the court to admit proof of declarations before proof of conspiracy. The prosecutor may either prove the conspiracy, which renders the acts and declarations of the conspirators admissible in evidence, or he may prove the acts of the different persons and thus prove the conspiracy. However, there must be some tangible, material evidence of the conspiracy or a promise of its production before the court can properly admit evidence of statements made in the absence and without the knowledge of the party against whom they are offered. The evidence need not be direct, positive, and conclusive, but there should be some evidence, and it is for the court, in the first instance, to say whether or not it exists.'

We hold it is discretionary with the trial court to admit proof of declarations and acts of other coconspirators before proof of conspiracy, and that the subsequent connecting of the one on trial with the conspiracy and crime is sufficient. Spies v. People, 10 West.Rep. 701, 122 Ill. 1, 12 N.E. 865, 17 N.E. 898, citing State v. Winner, 17 Kan. 298; 1 Greenl.Ev. Sec. 111; Roscoe, Cr.Ev. 7th ed. p. 415.

Appellant complains of admission in evidence of State's Exhibit 'A' (registration card at the Benson Hotel of defendant and others) because of alleged change, and pencil marks, in the writing on the card. The exhibit was offered in evidence for the purpose of establishing that the defendant and the alleged coconspirators, Mr. Montana and the Filipino, were staying together at the Benson Hotel. This fact was proved by other testimony, also by admission of the appellant later. Immaterial and irrelevant pencil marks on business records which do not prejudice the rights of the parties are insufficient to bar the exhibit from admission in evidence. There was no prejudice.

Appellant contends that State's Exhibit 'D', a package represented by defendant So's coconspirators to contain articles valued in excess of $5000, was erroneously admitted in evidence. The package in question contained some candy bars and was represented to the complaining witness Mr. Okamura, by others connected with the crime, and acting in conjunction with Mr. So, as containing valuable articles. Further, the package was exhibited to Mr. Okamura and representations made of its value by other persons concerned in the commission of the crime as hereinafter shown, who were in cahoots with the appellant. The package was properly admitted in evidence.

Appellant contends that the acts, statements and conduct of Mr. Montana, one of the principals in the alleged crime, but not on trial, not occurring in his (So's) presence should not have been admitted in evidence.

Where two or more parties are concerned in the commission of a crime, or are working with a common purpose, each is liable for the acts and representations of his associates or participants in the crime, and where two or more persons so associated conspire to obtain the money of another by false pretenses, both are criminally liable, and the act of one is the act of both. Commonwealth v. Mycock, 315 Mass. 262, 52 N.E.2d 377; People v. Harrington, 310 Ill. 613, 142 N.E. 246; Card v. State, 109 Ind. 415, 9 N.E. 591; People v. Rogers, 375 Ill. 54, 30 N.E.2d 77.

Where a conspiracy has been established to commit a crime, each declaration or act of any of the conspirators, during the pendency of the criminal enterprise, in pursuance of the original plan and with reference to the common object, is competent evidence against each of them. Card v. State, supra.

It is unnecessary that the false pretenses or representations, if communicated, be made by the defendant in person. It is sufficient if it is done by someone acting with him or instigated by him so to do. Commonwealth v. Harper, 195 Ky. 843, 243 S.W. 1053.

Complaint is made that the court should have advised the jury to acquit the defendant. There is no merit to this contention, and it will not be discussed.

Appellant complains and assigns as error that other alleged participants in the victimization of the complaining witness were not named in the information or charged with the commission of the alleged crime, and no conspiracy was charged. The answer to this contention is that neither Mr. Montana, nor Reyes, the Filipino, were, as far as the transcript shows, ever apprehended, or given a preliminary examination. Without such preliminary examination, or waiver thereof, they could not be charged with a felony in the district court. Sec. 19-1308, I.C.

Further, Sec. 19-1430, I.C. provides: '* * * and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall hereafter be prosecuted, tried, and punished as principals, and no other facts need be alleged in any indictment against such an accessory than are required in an indictment against his principal.'

Section 19-1431, I.C. provides: 'An accessory to the commission of a felony may be indicted, tried, and punished, though the principal may be neither indicted nor tried.'

The common law distinction between classes of parties to criminal offenses is abolished. All persons concerned in the commission of a crime are principals, and one who aids and abets another in the commission of a crime is a principal. 22 C.J.S., Criminal Law, § 27, page 82.

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