State v. Stratford

• Decision Date: 10 November 1934
• Docket Number: 6105
• Citation: 55 Idaho 65,37 P.2d 681
• Parties: STATE, Respondent, v. K. B. STRATFORD, Appellant
• Court: Idaho Supreme Court

37 P.2d 681

55 Idaho 65

STATE, Respondent, v. K. B. STRATFORD, Appellant

No. 6105

Supreme Court of Idaho

November 10, 1934

CRIMINAL LAW - OBTAINING MONEY BY FALSE PRETENSES - INFORMATION SUFFICIENCY OF - PROOF - RECEIPT OF MONEY BY THIRD PARTY-BENEFIT TO DEFENDANT-PAYMENT BY CHECK-INTENT-EVIDENCE-SIMILAR AND SUBSEQUENT TRANSACTIONS-ADMISSIBILITY-INDUCING CAUSE-RELIANCE ON FALSE REPRESENTATIONS-INSTRUCTIONS.

1. Information held to charge offense of obtaining money under false pretenses as against contention that word "induced" as used in information did not sufficiently charge that money was paid over, since, although "induce" has to do with sustaining reasons for a course of action, as used in information, it clearly conveyed to one of ordinary understanding that payment was in fact made (I C. A., secs. 19-1309, 19-1311, 19-1318, 19-1319).

2. Defendant held guilty of receiving money under false pretenses, where although he did not receive money personally, it was shown that he was officer and stockholder of company to whom money was actually paid and was in position to benefit therefrom.

3. Payment for fraudulent invoice by check, charged to account of complaining witness, and credited to account of accused's company held sufficient to pass title to money so as to sustain charges of obtaining money under false pretenses.

4. In prosecution for obtaining money by false pretenses by assigning fraudulent invoices to complainant, evidence of two similar and allegedly fictitious invoices made subsequent to offense charged held admissible to prove intent.

5. Although, generally, on trial for felony, prosecution may not introduce evidence tending to establish defendant's guilt of another distinct crime, evidence of either prior or subsequent similar acts occurring shortly before or after one charged, and part of same scheme or system is admissible to prove intent.

6. In prosecution for obtaining money by false pretenses instruction that false representation must have been effective cause in inducing complainant to part with his money, but that such representation need not be sole cause and to be effective cause it was necessary to find that without such representations complainant would not have parted with money, held proper under evidence that complainant relied on representations.

7. All instructions must be considered together.

8. Refusal of instruction covered by one already given held not error.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. John C. Rice, Judge.

Appeal from conviction of obtaining money by false pretenses. Affirmed.

Affirmed.

Frank F. Kibler, for Appellant.

The information must charge that the proof must show that by means of the alleged false pretenses the defendant thereby "fraudulently gets possession of money or property," and charging that by means of alleged false pretenses the complaining witness was induced to pay money to another does not meet the requirements of our statute. (Section 17-3902, I. C. A., 1932; State v. Whitney, 43 Idaho 745, 245 P. 525.)

The essence of the crime of obtaining money under false pretenses consists in actually obtaining money or property, with intent to defraud. (State v. Whitney, supra; State v Stevens, 48 Idaho 335, 282 P. 93.)

Subsequent transactions, involving other offenses than charged in the information, are not admissible in false pretense cases to show fraudulent intent, a scheme or plan to defraud, or for any other purpose. Admission of such evidence constitutes and is reversible error. (8 R. C. L., p. 205, par. 199; Coblentz v. State, 84 Ohio St. 235, 95 N.E. 768; State v. Letourneau, 24 R. I. 3, 51 A. 1048, 96 Am. St. 696.)

Bert H. Miller, Attorney General, and M. A. Thometz, Assistant Attorney General, for Respondent.

The information is sufficient to charge the defendant with obtaining money under false pretenses. Sections 19-1309, 19-1311, 19-1318 and 19-1319, I. C. A.; State v. Whitney, supra; Musgrave v. State, 133 Ind. 297, 32 N.E. 885.)

Even though defendant was acting for the company and not for himself personally, he is not relieved from responsibility for his unlawful act. (State v. Chingren, 105 Iowa 169, 74 N.W. 946; State v. Mendenhall, 24 Wash. 12, 63 P. 1109.)

Evidence of other similar acts of defendant having the same effect to mislead and where it tends to establish the absence of mistake or accident or to show fraudulent intent, scheme or plan to defraud, is admissible. (8 R. C. L., pp. 204, 205, secs. 198, 199; State v. Clamp, 164 Wash. 653, 3 P.2d 1096, 80 A. L. R. 1302; Boultinghouse v. State, 24 Okla. Cr. 369, 218 P. 173; State v. Marshall, 77 Vt. 262, 56 A. 916.)

GIVENS, J. Budge, C. J., and Morgan, Holden and Wernette, JJ., concur.

OPINION

GIVENS, J.

Appellant was convicted of obtaining money by false pretenses under the following information:

"The said K. B. Stratford on or about the 15th day of December, A. D. Nineteen Hundred and Thirty two at the County of Canyon, in the State of Idaho, then and there being and prior to the filing of this Information did then and there wilfully, unlawfully, knowingly, feloniously and designedly make false and fraudulent representations to P. M. Bloom of Nampa, Canyon County, Idaho, by then and there representing to the said P. M. Bloom that the Idaho Wood Products, Inc., had sold and delivered to the Farmers Co-op. Creamery Company of Payette, Idaho, 350 tom turkey boxes and 350 hen turkey boxes, which said representations were then and there in truth and fact false and fraudulent and which said representations the said K. B. Stratford then and there well knew to be false and untrue, and he the said K. B. Stratford then and there being, did then and there make and assign as Secretary of the Idaho Wood Products, Inc., for value received an invoice for the said turkey boxes, which he the said K. B. Stratford falsely and fraudulently represented had been sold to the Farmers Co-op Creamery Company of Payette, Idaho, he the said K. B. Stratford then and there well knowing such representations to be false and fraudulent and he the said K. B. Stratford, then and there by said false and fraudulent representations induced the said P. M. Bloom to pay to the Idaho Wood Products, Inc., the sum of $ 238.03, lawful money of the United States of America, for said false and fraudulent invoice. . . ."

By demurrer, and in his motion in arrest of judgment and motion for new trial, appellant challenges the sufficiency of the information in that by using the word "induced," it did not sufficiently charge that the money was in fact paid over. The word "induce" has, among others, this definition according to Webster's Dictionary:

"To bring on or about; to effect; cause; as, a fever induced by fatigue or exposure." . . .

"Induced--Brought on as by inducement; caused by indirect influence."

The New Standard Dictionary (Funk & Wagnalls) defines "induce":

"To influence to an act or course of conduct; lead by persuasion or reasoning; incite by motives; prevail on; as, to induce a man to stop drinking." . . . .

"To bring on; lead to or produce; cause; as, a sickness induced by fatigue."

Thus, while the word "induce" has to do with the sustaining reasons for a course of action, it is apparent that, as used herein, the phrase, ". . . . induced the said P. M. Bloom to pay to the Idaho Wood Products, Inc. . . . ," connotated and clearly conveyed to one of ordinary understanding that payment was in fact made, and therefore the information was in this particular sufficient. (Sections 19-1309, 19-1311, 19-1318, 19-1319, I. C. A.; Faulk v. State, 38 Tex. Crim. 77, 41 S.W. 616; State v. Brown, 143 Wis. 405, 127 N.W. 956.)

"It is claimed that appellant's objection to the introduction of evidence in support of the first and third counts should have been sustained. The objection was based on the ground that these counts failed to state facts sufficient to constitute a public offense. The part of the first count of the information which is under criticism in this regard reads as follows: 'That the said John R. Crowley . . . . was induced . . . . to pay over and deliver to the said B. D. Whiteside $ 3,000 in money.'

"There is no direct allegation in this count that John R. Crowley actually paid over and delivered $ 3,000 or anything else to B. D. Whiteside, or that Whiteside obtained anything from Crowley. It is obvious that, regardless of the false pretenses which the defendant may have made which were persuasive enough to have amounted to an inducement to Crowley to pay over and deliver money, no crime was committed unless Crowley in fact paid the money over and delivered it to the defendant.

"In each of the cases cited by the people to sustain the pleading in question there is a positive allegation that property was obtained by the defendant. In People v. Griesheimer, 176 Cal. 44, 167 P. 521, 522, the language used was 'did then and there deliver.' In People v. Flowers, 54 Cal.App. 214, 201 P. 468, it was, that was 'paid to appellant the sum of $ 130.' In People v. Haas, 28 Cal.App. 182, 151 P. 672, it was 'did sell and dispose of.' A good pleader would not fail to make a direct allegation in charging an offense of this nature that property was in fact obtained by the defendant. However, in State v. Brown, 143 Wis. 405, 127 N.W. 956, an indictment containing similar language was held sufficient against an attack upon the same ground as in the case at bar. In that case the language was 'did . . . . induce said Marinette county to pay.' It was there held that these words would, in their ordinary acceptation, be held to mean that the defendant obtained the money. The same may be said of the words used in the instant case. They convey...