State v. Swanson

• Decision Date: 11 February 1966
• Docket Number: No. 36040,36040
• Citation: 140 N.W.2d 618,179 Neb. 693
• Parties: STATE of Nebraska, Appellee, v. John SWANSON, Appellant.
• Court: Nebraska Supreme Court

Page 618

140 N.W.2d 618

179 Neb. 693

STATE of Nebraska, Appellee, v. John SWANSON, Appellant.

No. 36040.

Supreme Court of Nebraska.

Feb. 11, 1966.

Syllabus by the Court

1. The general rule is that a defect in the manner of charging an offense is waived if, upon being arraigned, the defendant pleads to the general issue, provided the information contains no jurisdictional defect and is sufficient to charge an offense under the law.

2. In a prosecution for obtaining credit by false pretenses a causal connection between the false pretenses and the obtaining of the credit is an element of the offense and must be proved beyond a reasonable doubt.

3. Intent to defraud may be proved by the circumstances surrounding the transaction.

4. Where there is competent evidence to support a finding of intent to defraud, the verdict of the jury will not be disturbed because there is testimony tending to indicate that there was no such fraudulent intent.

5. This court, in a criminal action, will not interfere with a verdict of guilty, based upon conflicting evidence, unless it is so lacking in probative force that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt.

6. The gravamen of the offense of obtaining money by false pretenses is in making the false pretense, and thereby obtaining a person's property or signature; it does not depend upon ultimate loss to the victim or whether in fact he sustains any pecuniary loss. The offense is complete when the money or property has been obtained by such means and cannot be purged by subsequent restoration or repayment.

7. If the money and credit were procured through the means of the false pretenses and representations, it is immaterial whether the victim thereof might by diligence have recouped its loss.

8. A party cannot complain of an instruction that is more favorable to him than he deserves although it is technically erroneous to the issues.

9. An inconsistency of instructions is not fatal unless one of the inconsistent instructions errs wrongfully against the accused.

Murphy, Pederson & Piccolo, North Platte, for appellant.

Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ.

BROWER, Justice.

The defendant was found guilty by a jury and sentenced to the Nebraska Penal and Correctional Complex on each of two counts of an information filed in the district court for Chase County. He appeals to this court from an order overruling his motion for a new trial.

Count one was for obtaining money and credit from the National Bank of Commerce Trust and Savings Association of Lincoln, Nebraska, hereafter designated as the Lincoln Bank, on May 21, 1964, in Chase County, by falsely pretending to be the owner in the aggregate of 629 head of cattle therein listed and described in four groups, each situated in a specifically described locality. Relying on said false pretenses the Lincoln Bank accepted from defendant a chattel mortgage on said cattle to that bank. By reason of said false pretenses and representations of the defendant, the Farmers and Merchants Bank of Imperial, Nebraska, hereafter referred to as the Imperial Bank, as agent for the Lincoln Bank, gave defendant money and credit in the sum of $3,110.53; said pretenses and representations were false; defendant did not own any of said cattle except 80 head thereof in one such group; and said representations were made with the intent to cheat and defraud the Lincoln Bank.

Count two charged that on May 21, 1964, in Chase County, defendant knowingly and unlawfully made a false statement in writing to the Lincoln Bank respecting his financial condition for the purpose of procuring a loan of $3,110.53 with the intent that said false statement should be relied upon by the Lincoln Bank and that that bank believed the false statement to be true and acting thereon parted with money and credit in the sum of $3,110.53.

Previous to the acts in question the defendant had procured cattle loans from the Imperial Bank and the Lincoln Bank, which was the correspondent of the former. In the fall of 1963 defendant's loan from the Imperial Bank had reached its legal limit of $35,000. Any additional loans were then being carried by the Lincoln Bank, either by notes payable directly to it or by notes payable to the Imperial Bank which it endorsed to the Lincoln Bank. The loans were secured by chattel mortgages on cattle. On May 21, 1964, the principal sum of his loan to the Imperial Bank was $35,000, and of loans to the Lincoln Bank, $81,786.67. None of them were then due. A short time previous to May 21, 1964, Wilbur Baack, vice president of the Lincoln Bank telephoned Edwin Burke, vice president of the Imperial Bank, and arranged for a meeting with the defendant on that date. Cattle prices were down and Baack thought Swanson's loan should be reviewed and his paper extended.

Defendant was notified and on the morning of May 21, 1964, met Burke and Baack at the Imperial Bank. Defendant drove Burke and Baack to the several locations where he showed them cattle. Included with these cattle were 82 head of heifers at the Vilas Smith feed lot in pen No. 6. He also pointed out as they rode to various locations 120 head of steers in Chase County, 300 white-faced steers on Malancie grass in Lincoln County, and 127 white-faced steers on Guthrie grassland in Garden County. It is unnecessary to allude to the statements of the defendant or his actions during the trip. It was stipulated in open court that he represented to both bankers that he owned these cattle and that the representations were untrue and, with the exception of 80 head of white-faced steers located in Chase County, he did not own any of them. The cattle mentioned are those described in the first count. It was not until evening that they returned to Imperial.

At 8:30 or 9 that evening the two bankers and the defendant met again at the Imperial Bank where Baack prepared a written list of the cattle on an inspection sheet, totaling 1,275 cattle, which includes those exhibited that day, from the notes he had taken on the trip. It is dated May 21, 1964, and states that, 'I have inspected this day chattel of John Swanson * * * for $122,000.' It is signed by both bankers and at its end is the statement: 'I certify that the above chattel as listed is the property of my chattel of above date and amount. (Signed) John Swanson.' Also, the property statement was prepared which shows it was given to the Lincoln Bank, 'For the purpose of obtaining loans and discounting paper with you, and otherwise procuring credit.' It contains a list of 1,640 cattle, grouped by age, sex, and weight which includes cattle corresponding with like kinds listed on the inspection sheet. It also sets forth certain real estate, including farmlands valued at $129,950 one parcel of which was encumbered for $16,000. It states it is a true and correct statement of the financial condition of the defendant.

With respect to the property statement referred to in count two, it was also stipulated that defendant was not the owner of any cattle listed thereon which bore a similar description to the ones previously mentioned and was not the owner of the northeast quarter of Section 19, Township 13, Range 2 East, in Walton Township, Sumner County, Kansas, described in the financial statement. This land was unencumbered and valued at $72,000 in the statement.

Before drawing the papers, defendant was asked if he desired further money and he replied he could use some. He stated he needed between $2,000 and $3,000, and the loan was rounded out in the sum of $122,000. A chattel mortgage was drawn, purporting to mortgage 1,272 cattle, including those heretofore mentioned as inspected that day. The chattel mortgage was made to the Imperial Bank and the Lincoln Bank and secured two notes, one for $35,000 and the other for $87,000. Such a $35,000 note to the Imperial Bank and an $87,000 note to the Lincoln Bank were prepared. The notes, chattel mortgage, and property statement were all prepared in defendant's presence and all signed by him that night.

After the papers were signed vice president Burke made a deposit slip showing defendant had deposited to his credit at the Imperial Bank the sum of $122,000. The defendant signed and delivered to the bankers two checks on this account in the same bank. One was for $35,895 to the Imperial Bank which was for the principal and $895 interest on its former loan, and the other for $82,994.47 to the Lincoln Bank for the principal and $1,209.80 interest on the loans to it. At this conference at the bank, vice president Baack told vice president Burke in Swanson's presence to credit the additional amount to defendant's account and 'to make the various entries to offset that for our banks.' The Imperial Bank posts its books the day following a transaction. On May 22, 1964, the individual account of defendant in the Imperial Bank was credited with $122,000 and charged with the two checks given by defendant, on for $35,895 and one for $82,994.47. This left the credit difference of $3,110.53 to augment his account. The new note of $35,000 was entered on the liability ledger. The two banks adjusted their accounts between themselves by ledgers kept at each bank similarly to an account with an individual. Those adjustments were made on May 22, 1964, at the Imperial Bank and on May 25, 1964, at the Lincoln Bank as Baack did not return to Lincoln immediately.

At some undisclosed time on May 22, 1964, two officers of an Ogallala bank, the mortgagee, with one of the owners of the 82 heifers in Vilas Smith's pen No. 6, went to the Imperial Bank and informed Burke that these cattle were not the defendant's but were owned by other parties. They all drove to defendant's farm and Burke confronted defendant Swanson...