State v. Taylor

• Decision Date: 16 July 1921
• Docket Number: No. 4833.,4833.
• Citation: 183 N.W. 998,44 S.D. 332
• Parties: STATE v. TAYLOR.
• Court: South Dakota Supreme Court

44 S.D. 332

183 N.W. 998

STATE

v.TAYLOR.

No. 4833.^*

Supreme Court of South Dakota.

July 16, 1921.

Appeal from Circuit Court, Hamlin County; W. N. Skinner, Judge.

Arthur O. Taylor was convicted of obtaining money under false pretenses, and he appeals from the judgment of conviction, and from the order overruling his motion for a new trial. Affirmed.John N. Weber and George H. Marquis, both of Watertown, for appellant.

Byron S. Payne, Atty. Gen., Edwin R. Winans, Asst. Atty. Gen., and H. A. Linstrom, State's Atty., of Hayti, for the State.

SMITH, J.

Appeal from a judgment of conviction and an order overruling defendant's motion for a new trial. The assignments of error based upon an order of the trial court overruling a demurrer to the information and an order overruling a motion for a new trial based upon the insufficiency of stipulated evidence to sustain a conviction, present but a single question: Does the information describe a public offense?

The information charges that the defendant-

“*** did commit the crime of obtaining money under false pretenses as follows, to wit: That on or about said 24th day of September, 1920, *** said defendant did willfully, knowingly, unlawfully, and feloniously obtain from one C. R. Horswill *** the sum of $25 in lawful money of the United States, by executing and delivering to said C. R. Horswill a check as follows:

‘Hudson, Wis., 9-24, 1920.

‘Cosmopolitan State Bank: Pay to Self or order $25.00 twenty-five dollars.

‘Arthur O. Taylor.’

-and by falsely pretending thereby that there was a bank in the city of Hudson, Wis., by the name of Cosmopolitan State Bank, and that he, said Arthur O. Taylor, had sufficient money on deposit, subject to check in such bank, to meet the demand of the check above set forth when same should be presented for payment; that in truth and in fact there was no bank in the city of Hudson, Wis., on or about said 24th day of September, 1920, by the name of Cosmopolitan State Bank; that the check above set forth and mentioned was indorsed as follows: Arthur O. Taylor being written on the back thereof, against the form of the statute,” etc.

Some doubt is expressed by appellant's counsel as to whether the information may not have been framed under section 4253, Rev. Code 1919, as amended by chapter 133, Laws 1919, but it is perfectly clear that it does not state facts sufficient to constitute a crime under that section. The only question is whether it states facts sufficient to constitute a crime under section 4249, Code 1919, which declares that-

“Every person who designedly, by color or aid of any false token or writing, or other false pretense, obtains the signature of any person to any written instrument, or obtains from any person any money or property, is punishable, etc.”

It will be observed that the information does not charge that accused, by verbal representations, did falsely state that there was a bank by the name of Cosmopolitan State Bank, or that he had sufficient money on deposit subject to check in such bank to meet the same when it should be presented for payment. The allegation is that the defendant did willfully, knowingly, unlawfully, and feloniously obtain the money by executing and delivering a check, thereby falsely pretending that there was a bank, etc. The substance of the information is that the accused willfully, knowingly, unlawfully, and feloniously, did obtain money by means of a check on a bank which he knew did not exist.

Appellant contends, first, that the information fails to allege that the act was done “designedly,” and does not contain other equivalent words; second, that the information contains no allegation that the act was done ...