State v. Timmerman
| Decision Date | 31 March 1936 |
| Docket Number | 5591 |
| Court | Utah Supreme Court |
| Parties | STATE v. TIMMERMAN |
Appeal from District Court, Third District, Salt Lake County; James W. McKinney, Judge.
William P. Timmerman was charged with the crime of obtaining money under false pretenses, and he appeals.
REVERSED AND REMANDED.
E. A Rogers, of Salt Lake City, for appellant.
Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.
OPINION
The information in this cause was filed in the district court of the state of Utah, Third judicial district, in and for Salt Lake county, on the 1st day of February, 1934. The cause was argued and submitted to the Supreme Court for decision on the 13th day of January, 1936. The case is therefore to be ruled by the provisions of R. S. Utah 1933, and not by the amended Code of Criminal Procedure which became effective on May 14, 1935. Laws Utah 1935 (chapter 116 et seq.). The information accuses the defendant, William P. Timmerman, of the crime of obtaining money under false pretenses; the charging part of the information being as follows:
"That the said William P. Timmerman, on the 17th day of January, A. D. 1933, at the County of Salt Lake, State of Utah, wilfully, unlawfully, knowingly, designedly, feloniously, and with intent to cheat and defraud the Ostler Candy Company, a corporation, did falsely and fraudulently pretend and represent to Harry Ostler, the president of said corporation, that the sum of One Hundred and no/100 ($ 100.00) Dollars was then and there due and owing to him, the said William P. Timmerman, by the said corporation; and the said Harry Ostler, then and there believing the said false pretense and representation so made, as aforesaid, by the said William P. Timmerman to be true, and then and there being deceived thereby, was then and there induced as such president of said corporation, to sign, execute, and deliver to the said William P. Timmerman, one check of the value of One Hundred and no/100 ($ 100.00) Dollars lawful money of the United States of America, payable to the said William P. Timmerman and drawn on the Utah Savings and Trust Company, a banking corporation of the State of Utah, with its principal place of business at Salt Lake County, State of Utah; and the said William P. Timmerman did then and there wilfully, unlawfully, knowingly, feloniously, and designedly receive and obtain the said One Hundred and no/100 ($ 100.00) Dollars check from the said Ostler Candy Company by means of the false pretense and representation so made as aforesaid, and with intent then and there to cheat and defraud the said Ostler Candy Company, whereas, in truth and in fact the said William P. Timmerman well knew that the said Ostler Candy Company was not indebted to him in the sum of One Hundred and no/100 ($ 100.00) Dollars, or in any other sum; and the said Harry Ostler, as president of the said Ostler Candy Company as aforesaid, would not have signed, executed, and delivered to the said William P. Timmerman said check in the sum of One Hundred an no/100 ($ 100.00) Dollars, except upon the false representation so made as aforesaid by the said William P. Timmerman."
Seventy-three numbered errors are contained in the assignments of error. Four of them relate to given or refused instructions. None of these four assignments are argued, and are therefore deemed abandoned. Two of the assignments refer to alleged misconduct of the prosecuting attorney. These are treated with the question of admission or exclusion of evidence. One relates to the denial of a motion for a new trial; two of them to the insufficiency of the information to state a public offense and insufficiency of evidence to make a case. All the other assignments of error relate to alleged errors in admission or exclusion of evidence over objection, and that defendant's right of cross-examination was "unduly and unreasonably restricted." The record contains over five hundred typewritten pages and covers everything from loans and lettuce farming, debits and credits, bookkeeping, and cash, to dance halls, promissory notes, and overdrafts.
Without pretending to be meticulously accurate, the record in substance shows that the defendant, William P. Timmerman, had been an employee of the Ostler Candy Company for a period of about nine years; that defendant had been and at the time of the alleged offense was bookkeeper and cashier of the company, of which Harry Ostler was president and general manager; that there had been borrowings and loans, personal and corporate, between the company and its manager and defendant; that at the time of the alleged signing of the check there was no spoken word, no writing or memorandum signed by the defendant, no misrepresentations or pretenses other than those that may arise by implication out of the circumstances, that induced the general manager of the company to sign, execute, and deliver a check of the Ostler Candy Company of the value of $ 100 to the defendant.
The circumstances relating to the transaction are about as follows: On January 17, 1933, Harry Ostler signed a check that had been placed upon his desk along with some other checks, by some one not definitely known, but according to custom it was probably done by the defendant William P. Timmerman, for $ 100 payable to the order of William P. Timmerman. The check was drawn on the Utah Savings & Trust Company against the Ostler Candy Company account. William P. Timmerman received the check, indorsed it, and deposited the same to his own credit with the Utah Savings & Trust Company. It was the duty of defendant to make out the checks of the company in payment of company accounts and put them on the desk of the president of the company for signature. That was what was probably done with reference to the check in question. The president had no independent recollection of signing the particular check. The defendant admitted receiving the check and depositing it to his own credit. It is not known definitely whether the defendant prepared the check and placed it upon the desk of the president of the company, or whether an assistant bookkeeper did it. It is probably that it was done either by the defendant or by his direction, because such would likely happen in the usual course of business. That all the balance of the record is devoted to the question of whether or not, at the time, there was a debtor and creditor relationship existing between the company and defendant favorable to defendant. The defendant maintains there was; the state maintains there was not; and thus the battle rages about the accounts and audits of the candy company and the borrowings and loans of the company and its officers.
If it be granted that the jury from the evidence might have found against the defendant's contention on that issue, still is there sufficient evidence to support the verdict of the jury? During the long period of the defendant's employment, many times had he placed checks upon the desk of the president of the company for signature, not only for payment to himself of salary and for loans, but also checks for general payment of all accounts payable of the company. The claim that the particular check was obtained by false and fraudulent representations did not arise until about a year after the check was signed and after an audit of the company books had been made. May it be said, when it is clear there was no verbal or express representation entering into the incident, that under the circumstances there was an implied representation that there was an existing indebtedness at the time due and owing to defendant from the company and that such implied representation misled the president of the company into the signing of the check, and that he would not have done so without believing the implied misrepresentation, and that the president did believe and rely upon the implied misrepresentation, and that he would not have signed the check except upon the belief based upon the implied false and fraudulent representation? State v. Jenson, 74 Utah 527, 280 P. 1046. May it be said that the manager and president of a corporation was impliedly misled as to the status of the debtor and creditor relationship existing as between the company and the defendant by the placing upon his desk of a check for his signature? That a false pretense and misrepresentation may be implied from acts has been decided in State v....
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Westmoreland v. State, 46118
...as to the ownership of the money under the authority of Scott v. State, 53 Ga.App. 61, 66, 185 S.E. 131. In State v. Timmerman, 88 Utah 481, 487, 488, 55 P.2d 1320, 1323, concurring opinion, 56 P.2d 1354 (1936), the Utah Supreme Court in discussing the question, Appellant, however, argued t......
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State v. Johnson, 18617
...lost something of value .... State v. Vatsis, 10 Utah 2d 244, 247, 351 P.2d 96, 97 (1960) (emphasis added) (citing State v. Timmerman, 88 Utah 481, 55 P.2d 1320 (1936)). This Court has elaborated on this element as follows: The actual fraud and prejudice required, however, is determined acc......
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Pixton v. Dunn, 7528
...The elements of the offense of obtaining money by false pretenses under section 103-18-8, supra, are listed in State v. Timmerman, 88 Utah 481, 55 P.2d 1320, 1322, 56 P.2d 1354, as follows: '* * * (1) There must have been false or fraudulent representations or pretenses. (2) The representat......
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State v. Hanks
...is sufficient if the ownership is indicated by the allegations of the information even though not directly alleged. State v. Timmerman, 88 Utah 481, 55 P.2d 1320, P.2d 1354; State v. Knowlton, 11 Wash. 512, 39 P. 966; and State v. Balliet, 63 Kan. 707, 66 P. 1005. The third rule is that und......