State v. Swan

• Decision Date: 05 December 1906
• Docket Number: 1728
• Citation: 31 Utah 336,88 P. 12
• Court: Utah Supreme Court
• Parties: STATE v. SWAN

88 P. 12

31 Utah 336

STATE v. SWAN

No. 1728

Supreme Court of Utah

December 5, 1906

APPEAL from District Court, Weber County; J. A. Howell, Judge.

William R. Swan was convicted of false pretenses, and he appeals.

AFFIRMED.

Heywood & McCormick and W. L. Maginnis for appellant.

George Halverson, District Attorney, for the State.

APPELLANT'S POINTS.

"Counts of an indictment, charging false pretenses in obtaining payment of a claim against a county, which fail to accurately describe the pretenses, the order or warrant issued to the defendant to whom it was payable, for what amount it was drawn, are insufficient on motion to quash." (Johnson v. State, 75 Ind. 553; People v Ellenwood [Cal.], 51 P. 553; 2 Bishop, Criminal Law sec. 460, et seq.; Moore, Criminal Law, sec. 733; Wharton, Criminal Law, sec. 2070, et seq.)

RESPONDENT'S POINTS.

"There is no merit in the points made by the defendant, that the claim as presented, contained several items, or that the claim contained items not alleged to be false or fraudulent. . . . The indictment was sufficient charging the offense, as it did, in the language of section 72 of the penal code" and the judgment was affirmed. (People v. Carolan, 71 Cal. 195.) It was said in the case of United States v. Ambrose, 2 F. 764: "It is sufficient to charge a presentation to the first auditor of the treasury without naming the person who held the office." (United States v. Ingraham, 49 F. 155.)

The fact that no skins or scalps were exhibited or that the affidavit was not sworn to can make no difference. (State v. Adams, 79 P. 398; United States v. Ingraham, 155 U.S. 434; United States v. Coggin, 3 F. 492; State v. Voute [Ohio], 67 N.E. 184.)

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

The appellant, William R. Swan, was tried and convicted of a felony, and by the judgment of the court sentenced to imprisonment in the state prison, from which judgment he appeals.

The appellant was informed against jointly with one Arthur H. Conlisk, but was separately tried. The charging part of the information is as follows: "On the 14th day of January, 1905 at the county of Weber and state of Utah did then and there unlawfully, willfully, and feloniously, and with intent to defraud the state of Utah present for allowance to the county clerk of Weber county, state of Utah who was then and there authorized to allow the same if genuine, a certain false and fraudulent claim, voucher, and writing purporting to be a genuine claim, voucher, and writing for bounty amounting to the sum of $ 257.00, on one hundred and twenty-six certain wild animals, to wit, ninety-four coyotes, eleven wild cats, nineteen wolves, and two mountain lions, then and there well knowing said claim, voucher, and writing to be fraudulent and false, contrary," etc. By this information it was sought to charge the offense denounced in section 4083 of the Penal Code as found in the Revised Statutes of Utah 1898, which section reads as follows:

"Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer or to any county, city, town, or district board or officer, authorized to allow or pay the same, if genuine, any false or fraudulent claim, bill, account, voucher, or writing is guilty of felony."

Appellant attacked the information both by motion to quash and by demurrer. The motion is made upon the following grounds: That the information fails to state to whom the alleged claim was payable, or to whom it belonged; that the information fails to state in what particular or particulars the alleged claim was or is false or fraudulent; that the information fails to set out therein in substance or by copy the claim alleged to have been presented for allowance. The demurrer is a repetition of the foregoing grounds, but adds thereto the following: That the information fails to charge the defendant with the commission of a felony, and that the same fails to charge him with the commission of a crime. The court overruled both the motion and demurrer, and this ruling is assigned as the first error.

It is argued that the information is insufficient, for the reason that it does not set forth to whom the alleged claim was payable, and that it does not describe the claim; that it was necessary, it is claimed to either set out a copy of the claim or the substance thereof. It is further claimed that the allegation that the claim was false and fraudulent is insufficient. Section 4732, Revised Statutes 1898, provides:

"The information or indictment must be direct and certain as it regards: (1) The party charged; (2) the offense charged; (3) the particular circumstances of the offense, when they are necessary to constitute a complete offense."

From the foregoing it is clear that the particular circumstances of the offense need be set forth only when they constitute or are necessary to complete the offense. Tested by these rules, is the information vulnerable to the objection urged against it? The offense denounced by the section above quoted consists of presenting, with intent to defraud, for allowance or payment to any official authorized by law to allow or pay the same, if genuine, any false or fraudulent claim, bill, account, voucher, or writing. The person charged is thus certain in the information. The offense charged is equally certain, for the reason that the information charges that the defendant, with intent to defraud the state of Utah presented to the county clerk of Weber county, Utah who was authorized to allow the same, if genuine, a certain false and fraudulent claim, voucher, and writing, purporting to be genuine, for bounty amounting to $ 257, and then sets forth the particular items for which the bounty was claimed, and the same was presented with full knowledge upon the part of the defendant that the claim was false and fraudulent. The law, or statute, is, in contemplation of law, always a part of any information to the same extent as if the same were referred to or set forth therein. This being so, no person of ordinary intelligence could fail to understand what offense was intended to be charged. The offense was, therefore, charged with that degree of certainty required by the statute. Neither can we conceive why it would add anything to set forth a copy of the false claim or voucher, since the transaction referred to in the information was identified in three ways: (1) By giving the date thereof; (2) by giving the amount of the claim presented; and (3) by stating what it was for, giving the several items upon which the claim was based. To have set forth a verbatim copy of the voucher or writing presented for allowance could not have accomplished more.

But it was urged that it was insufficient because several claims of the same kind might have been presented on the same day, some good, some bad, and therefore the person to whom payable should have been stated. To have set forth a copy, or to have stated the person to whom payable, would not have cured the difficulty, if, indeed, there is such. To have done so would have not disclosed whether the claim was a genuine or a false one. This was the very thing to be established by the proof. The claim, when presented, would not necessarily disclose either its genuine or false character. The statute does not denounce the presentation of particular claims only, but denounces the presentation of all false claims, with intent to defraud alike. It was therefore, not necessary to describe the claim so as to bring it within subdivision 3 of section 4732. Neither was it necessary to set forth the claim with more particularity for the purpose of identifying the transaction with the view of preventing double jeopardy. The information is not the only thing to be looked to in such a case. The same person may commit two murders on the same day by killing two persons by the same name, and by the same means. The information in such a case would not be, nor have to be, more specific in identifying the transaction than it would to charge a single murder only. The identification would take place at the trial, and would be determined from the evidence. The same result would be reached in case different claims of the same character and of the same kind were filed on the same day. These matters of identification would not be reached through the information, but from the evidence. In respect to the claim that it is insufficient to charge that the claim was false and fraudulent, without stating in what the fraud consisted, seems in view of the transaction and the offense denounced by the statute, wholly without merit. The offense consists of presenting for allowance and payment any false claim; that is one not genuine in fact. It is of no consequence whatever in what respect it was false, nor is the manner of its presentation material. The only question is: Is it in fact false, and was it presented with intent to defraud? That is the gist of the offense. Counsel do not state, nor would it be an easy matter to define, just what should be stated in this respect. It is not easy to conceive how more could be stated in this respect without requiring the whole evidence necessary to prove the offense charged to be stated. It is a matter not always free from difficulty to lay down hard and fast rules respecting what matter should or need not be stated in an information charging a purely statutory offense, and we shall not attempt to do so. Generally it is quite sufficient to charge such an offense in the language of the statute, or by doing so in terms equivalent to those used in the statute. Much depends upon the nature and character of the offense denounced. The following cases all support the doctrine that to charge a statutory...