State v. Stewart

• Decision Date: 17 October 1900
• Citation: 9 N.D. 409,83 N.W. 869
• Parties: STATE v. STEWART.
• Court: North Dakota Supreme Court

9 N.D. 409

83 N.W. 869

STATE

v.STEWART.

Supreme Court of North Dakota.

Oct. 17, 1900.

Syllabus by the Court.

1. The false pretense, referred to in section 7489, Rev. Codes, which provides the punishment for obtaining the signature or property of another by color or aid of any false token or writing, or other false pretense, is such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the person to whom it is made to part with something of value.

2. The false pretense may consist of oral or written representations, and when in writing it is not necessary, as in a prosecution for forgery, that such writing shall purport to create a right or obligation. It is sufficient if it is adapted to deceive the person to whom presented, and in fact does deceive him.

3. The question of whether false pretenses set out in an indictment as the basis of prosecution are adapted to deceive is for the jury, unless they are in their nature so absurd and incredible that a conviction would not be sustained; and the test of the sufficiency of the false pretenses is not whether they would deceive a person of ordinary caution and prudence, but whether they did in fact deceive the person alleged to have been defrauded.

4. A false representation made to an agent of the person from whom the money or property is obtained, and communicated to and acted upon by such person, is equally punishable as though made to him directly.

5. The defendant is charged with the crime of obtaining money by aid of a false token. It is alleged that he fraudulently and designedly obtained money from Sargent county by presenting to the county auditor of that county a false certificate as the basis for a claim for a bounty theretofore offered by the board of county commissioners for the destruction of gophers. Held, that the question whether said certificate, when considered with the other averments of the indictment, was calculated to deceive, and did deceive, the county auditor, was for the jury; the pretense being neither absurd nor incredible. Held, further, that the indictment sufficiently alleges that the money was obtained from the county by aid of such false pretense, and is not open to the objection that it shows upon its face that the defendant obtained property, to wit, a warrant for the money, by aid of such false pretense, instead of money.

6. It is further held, that the evidence fully justified the jury in finding such token was false, in that the defendant had not destroyed gophers in the number or at all, as represented by such certificate, and amply sustains the verdict.

Appeal from district court, Sargent county; W. S. Lauder, Judge.

Robert H. Stewart was convicted of obtaining money by false pretenses, and he appeals. Affirmed.T. A. Curtiss, E. W. Bowen, and Chas. E. Wolfe, for appellant. J. E. Bishop, S. M. Lockerby, P. H. Rourke, and John F. Cowan, Atty. Gen., for the State.

YOUNG, J.

The defendant was indicted by the grand jury of Sargent county for the crime of obtaining money by false pretenses. The trial resulted in a conviction. A motion for a new trial was overruled, and he was sentenced to imprisonment in the penitentiary for one year. The defendant is charged with having fraudulently obtained money from Sargent county by means of a false, forged, and fictitious instrument presented and used by him as evidencing an indebtedness of the county to him for the destruction of gophers. This is one of a series of offenses which appear to have been committed in that county by various persons, and which are known as the “gopherbounty frauds.” One of these cases (State v. Ryan, 83 N. W. 865) was before us at this term. The indictment in that case was for forgery, and is set out in full in the opinion, and is referred to in lieu of an extended statement of facts at this time. The condition which opened the way for the commission of these frauds arose directly from a certain illegal resolution of the board of county commissioners of that county offering a bounty for the destruction of gophers. The resolution offering the bounty provided, as a convenient means of paying such bounties as should be earned under it, “that said bounty shall be two (2) cents for each gopher killed, the same to be paid out of the county general fund upon the warrant of the county auditor: provided, that the county auditor shall issue such warrant upon the certificate of the township clerk of each township wherein such gophers were killed, such township clerk certifying to the number of tails of such gophers killed which were presented to and destroyed by such township clerk.” The indictment against the defendant charges that he obtained money from the county by means of the following certificate, which it alleges was falsely made, forged, and wholly fictitious: “County of Sargent, North Dakota. Office of Town Clerk of Harlem Township. To W. S. Baker, County Auditor: This is to certify that L. Lund has presented to me 2,250 gopher tails, which have been destroyed by me this day. Dated at Harlem, this 20th day of June, 1899. R. J. Morrow, Township Clerk.” The defendant demurred to the indictment upon the ground “that it does not state facts sufficient to constitute a public offense.” This was overruled, and that ruling is assigned as error.

The specific grounds of counsel's attack upon the sufficiency of the indictment are that (1) “it nowhere charges the fact to be that the instrument declared upon as a false token was not made, executed, and delivered by the person whose name was signed to it; (2) the instrument declared upon as a false token is not such, under the law, as could mislead any one.”

Neither one of the foregoing objections, in our opinion, is well founded. As to the first ground, namely, that the indictment contains no averment negativing the genuineness of the certificate alleged to have been used as a pretense, or alleging the falsity of the pretense used, counsel is in error. It is expressly alleged as to it that, “in truth and in fact, said partly printed and partly written paper was not a good and valid certificate of the facts therein recited, * * * but the same was then and there a falsely made and forged certificate, and wholly fictitious; all of which the said Robert H. Stewart then and there well knew.” The false character of the certificate is sufficiently set out in the foregoing averments. It was not necessary to expressly allege that it was not made by the person who purported to make it to give it the character of a false pretense; for, to have that character, it is not necessary that it be a forged instrument. It might be used as a false pretense, although genuine in point of execution, provided its recitals of fact were false, and known to be false by the defendant; and such was the case, as we shall hereafter see.

The contention, however, that the instrument declared upon as a false token is not such a pretense as, under the law, would mislead any one, and is not, therefore, a false pretense within the meaning of the statute, requires more extended consideration. The statute under which the indictment is drawn (section 7489, Rev. Codes) provides that “every person who, with intent to cheat or defraud another designedly, by color or aid of any false token or writing or other false pretense, * * * obtains from any person any money or property is punishable by imprisonment in the penitentiary,” etc. Was the false certificate set out in the indictment a false pretense? Bishop defines a “false pretense” as follows: “A false pretense is such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the person to whom it is made to part with something of value.” Bish. Cr. Law, § 415. This definition has been universally approved by the courts. Jackson v. People, 126 Ill. 139, 18 N. E. 286;State v. De Lay, 93 Mo. 98, 5 S. W. 607;Taylor v. Com., 94 Ky. 281, 1 S. W. 480;State v. Knowlton, 11 Wash. 512, 39 Pac. 966;State v. Vandimark, 35 Ark. 396;People v. Jordon, 66 Cal. 10, 4 Pac. 77;People v. Wasservogle, 77 Cal. 173, 19 Pac. 270. It is counsel's contention, however, that this certificate, alleged to have been used as a means of defrauding the county, is not adapted to induce any one to part with either money or property, for the reason that it is of no validity, and creates no enforceable right in favor of any one or liability on the part of the county. It is contended that a void pretense is no pretense; a void token, no token. That the certificate which was used as a token is without validity, in that it neither creates, nor purports to create, any liability against the county, is true. We so held in the case of State v. Ryan (decided at the present term) 83 N. W. 865, and for that reason it would not sustain a conviction for forgery. But there is a marked distinction in the test of an indictment for forgery and one for obtaining money by a false writing. A forged instrument must be one which, if genuine, would create some right or liability, or, in other words, be of some legal effect, while a false token need only be adapted to induce another to part with his property. The essence of the latter crime is the obtaining of the money or property of another by the aid of the false pretense. The pretense used to effect the fraud is not confined by the statute to written instruments of real or apparent legal effect, nor, in fact, to written instruments at all, but may be any false and fraudulent representations of past or existing facts which are adapted to induce persons to whom made to part with something of value. Again, it is urged that if the county officials had exercised common prudence, and acted within their legal authority, the defendant would not have obtained the money of the county. This must be conceded. Yet the fact that the defendant would have failed to get the money, if the county...