State v. Story

• Decision Date: 27 July 1951
• Citation: 97 N.H. 141,83 A.2d 142
• Parties: STATE v. STORY. STATE v. COTE.
• Court: New Hampshire Supreme Court

Page 142

83 A.2d 142

97 N.H. 141

STATE v. STORY.

STATE v. COTE.

Supreme Court of New Hampshire.

July 27, 1951.

Rehearing Denied Sept. 11, 1951.

Gordon M. Tiffany, William L. Phinney, Ernest R. D'Amours, Attys. Gen. Raymond K. Perkins, County Solicitor, Concord, and McLane, Davis, Carleton & Graf, Arthur A. Greene, Jr., Stanley M. Brown, all of Manchester (Graf and Brown orally), for the State.

Ernest L. Bell, J., James S. Davis, Keene, and Elwin L. Page, Concord (Bell and Davis orally), for Stephen B. Story.

Alvin A. Lucier, Normand R. Pelletier, Nashua, and Elwin L. Page, Concord, (Lucier orally), for Donat F. Cote.

LAMPRON, Justice.

The indictments in our opinion are valid under our law. Hence there is no necessity to pass on the seasonableness of the motions to quash. State v. Langelier, 95 N.H. 97, 99, 58 A.2d 315.

Article 15th of the Bill of Rights of the Constitution of New Hampshire provides: 'No subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him; * * *.' Under our decisions this requirement of our Constitution is met if the indictment informs the respondent of the nature and cause of the accusation with sufficient definiteness so that he can prepare for trial. State v. Rousten, 84 N.H. 140, 143, 146 A. 870; State v. Langelier, supra; State v. Ellard, 95 N.H. 217, 220, 60 A.2d 461.

The respondents argue that the indictments against them do not meet these requisites and are therefor defective and should have been quashed. State v. Gilbert, 89 N.H. 134, 194 A. 728; State v. Liptzer, 90 N.H. 395, 10 A.2d 232. Their position is substantially that the indictments consist of statements of legal conclusions instead of being definite factual descriptions of the nature and cause of the accusations made against them. State v. Piper, 73 N.H. 226, 229, 60 A. 742. Their chief defects, they contend, are 1) no definition of actual cost which must necessarily have been the basis from which overcharges could be found, 2) no identification of the items on which overcharges are claimed, 3) no specification of the amount of any overcharge.

However desirable it might seem to an accused that the State should be compelled to set out in an indictment the details of the evidence on which it relies to sustain the charges made, respondents are not entitled by law to that information. State v. Ellard, supra. The true test is not whether the indictment could possibly be made more definite and certain but rather whether it alleges every element of the offense charged in language sufficiently definite to apprise the respondents of what they must be prepared to meet for trial. 27 Am.Jur. 625; see State v. Canatella, 96 N.H. 202, 72 A.2d 507. It also stands to reason that the circumstances surrounding the particular offense may of necessity affect the degree of definiteness which can be reasonably required of the State in its indictment. State v. Burke, 54 N.H. 92, 94; State v. Canatella, supra, 96 N.H. 204, 72 A.2d 507.

Although not decisive of the question it is fair to say that Cote does not seriously contend that the indictments against him do not allege all of the elements of the statutory offense, R.L. c. 450, § 1, with which he is charged. His main contention is that these allegations are not made in the manner required by our Constitution. Const.Pt. I, art. 15. State v. Piper, supra.

All of the counts in the indictments arising out of payments received for work done at the Liquor Warehouse and at Plymouth are based on the presentation of invoices for work done and materials furnished under the terms of the so-called 'A B C' contract existing between the parties. (The Laconia indictments are based on a special contract for that work). This 'A B C' agreement, arrived at by the two respondents at a meeting between them prior to any of the work involved being undertaken, was reduced to writing in a letter dated December 13, 1946 from Story to Standard Construction Company, one of the trade names under which Cote conducted his business. It read as follows:

'This is authority for you to perform work of alterations and repairs at the Liquor Warehouse, Concord, New Hampshire, as ordered and directed.

The basis of compensation will be as follows:

Item A. Labor and materials, trucking and transportation at actual cost.

Item B. Supervision, planning, insurance and taxes computed at 10% of Item A.

Item C. Profit computed at 15% of Item A and Item B.

Special items of equipment will be at prices agreed upon separately.

Invoices and accounts will be available for our checking and inspection.'

We consider now respondents' contention that the indictments are defective for lack of definition of actual cost. The basis on which Cote was to be paid for work done, which the State maintains was disregarded and thereby constituted the obtaining of money from the State by false pretenses with intent to cheat and defraud, is set out in the indictments in almost the identical language contained in the written agreement between the parties under the terms of which some $600,000. of State work was undertaken at various times during the period in question. It seems plain that the material fact which the State alleges was misrepresented, i. e. actual cost was set out in the various indictments with the definiteness required by our law. It may also be noted that there is no suggestion in the record that this particular argument was advanced in the Trial Court.

The other defects in the indictments of which the respondents complain are the absence of identification of the specific items on which overcharges are claimed and lack of specification of the amounts of overcharges. Each count in every indictment is based on a specific invoice presented to the State on a particular day and the payment received therefor. Each count informed the respondents that the total claimed in that particular invoice under Item A (according to the A B C agreement) as being the actual cost of labor, and materials, trucking and transportation furnished was falsely represented to be in excess of what it really was. That is the specific false representation alleged to have been made in a particular instance on a day certain with intent to cheat and defraud. How the State would prove this charge was a matter of evidence the details of which need not be contained in the indictment. State v. Ellard, 95 N.H. 217, 220, 60 A.2d 461. It is also easily understandable that in a situation such as this, involving thousands of items covered by almost as many different invoices from various suppliers, the State might not have the information required to determine the exact amount of the false pretenses and of necessity be unable to declare it in the indictments. However the gist of the offense is the false representation. The extent of the overcharge resulting from the misrepresentation is not essential to the determination of the fact that a crime was committed, nor does it determine the class of the crime (as in larceny). The exact amount of the misrepresentation being unknown to the State and that fact stated in the indictment, its omission was not such a defect as would require that the indictments be quashed. State v. Burke, 54 N.H. 92, 94, 95; State v. Canatella, 96 N.H. 202, 204, 72 A.2d 507.

The respondents make the further argument that while the indictments at the Liquor Warehouse and at Plymouth charged that Cote on invoices falsely represented actual cost of items and services furnished the State, the proof was that the mispresentations consisted 1) in overstating the actual cost of materials used on those jobs, 2) overstating the actual cost of labor used there, 3) overstating the quantity of labor and material used, 4) submitting invoices for materials and supplies not furnished, 5) submitting invoices charging for labor, material and equipment furnished or used on separate agreed price work for which payment was separately received, 6) submitting to the State for materials purchased from it invoices at prices substantially in excess of actual cost.

This argument, in our opinion, is not essentially a reason for quashing the indictments, but rather presents the problem of whether or not there was a material variance between the allegations in the indictments and the proof offered in support of them. In other words was the offense proved different from the offense charged. 42 C.J.S., Indictments and Informations, § 254, page 1273; 2 Wharton's Criminal Evidence (11th ed.) 1841. Taking the same count 1 in the Liquor Warehouse indictment and analysing its allegations we find that it alleges that Cote was to be paid the actual cost of goods and services furnished to the State; that in presenting this invoice he pretended that the actual cost of the goods and services furnished was a certain amount; that in truth and in fact their actual cost was not the amount represented but a sum less. In other words Cote is charged with having misrepresented a) that all the items listed on the invoice presented were furnished to the State, under the A B C agreement, b) that the cost figures assigned to them were their actual cost. The evidence offered by the State under the six headings above referred to was material as tending to prove these misrepresentations. Being matters of evidence the State was not required to allege them in the indictments. State v. Ellard, 95 N.H. 217, 220, 60 A.2d 461; State v. Twarog, 97 N.H. ----, 81 A.2d 855.

We have examined all of the arguments advanced by both respondents by brief and orally in support of their motions of quash the indictments and find that the indictments are valid under our law. The exceptions to the denial of these motions are therefore overruled.

We will consider next whether or not, on the evidence, the respondents were properly convicted of the offenses with which they were charged.

Against Cote the State had the burden...