State v. Tripp

• Citation: 113 Iowa 698,84 N.W. 546
• Parties: STATE v. TRIPP.
• Decision Date: 19 December 1900
• Court: United States State Supreme Court of Iowa

113 Iowa 698

84 N.W. 546

STATE

v.TRIPP.

Supreme Court of Iowa.

Dec. 19, 1900.

Appeal from district court, Dallas county; J. D. Gamble, Judge.

Defendant was indicted, tried, and convicted of the crime of obtaining a signature to a warranty deed by false pretenses, and appeals from the judgment pronounced against him. Affirmed.G. M. Tripp, E. J. Salmon, and C. C. Cole, for appellant.

Milton Remley, Atty. Gen., and Chas. A. Van Vleck, Asst. Atty. Gen., for the State.

DEEMER, J.

The section of the Code under which the indictment was found reads as follows: “If any person designedly and by false pretense, or by any privy or false token, and with intent to defraud, obtain from another person any money, goods or other property, or so obtain the signature of any person to any written instrument, the false making of which would be punished as forgery, he shall be imprisoned,” etc. Section 5041. The following are material parts of the indictment: “That said defendant, in the county aforesaid [Dallas county] then and there being, did unlawfully, feloniously, designedly, and with intent to defraud one Ira A. Brown, represent and pretend to him, the said Brown, that the said R. Tripp was the owner of a certain house and lot in Des Moines, Iowa. That he had authority to sell and convey the said property, and give good title thereto, and had the power and was authorized to sell and convey said property to Ira A. Brown for his twenty-five acres in Dallas county, Iowa, * * * and then and there offered to sell and procure a deed for said Des Moines property to said Ira A. Brown for his said Dallas county land, which offer was then and there accepted by said Ira A. Brown, and, relying upon the said representations, and in pursuance to said offer and acceptance, the said Ira A. Brown was then and there induced to execute, sign, and deliver to said R. Tripp a certain instrument in writing, the false making of which would be punished as forgery, to wit, a warranty deed, which the said R. Tripp then and there had prepared and executed by him, the said Ira A. Brown, which warranty deed was in substance as follows [here follows a warranty deed signed by Ira A. Brown to certain land in Dallas county in the usual form of such conveyances, save that the blank for the name of the grantee is unfilled]; and by means of such false representations and pretenses the said R. Tripp did then and there obtain the name and signature of him, the said Ira A. Brown, to said warranty deed, * * * and the delivery thereof * * * to said R. Tripp; the said R. Tripp in consideration thereof then and there agreeing to procure at once a good and sufficient deed of conveyance of said Des Moines property to said Ira A. Brown; whereas in truth and in fact the said R. Tripp falsely and fraudulently made said representations designedly and with intent to defraud, * * * then and there knowing said representations and pretenses to be false, for the purposes of procuring the signature of said Ira A. Brown to said deed and the execution and delivery thereof; * * * and the said Ira A. Brown believed said representations and pretenses so made to be true, and relied thereon, and was induced to sign said deed, * * * and deliver the same to R. Tripp, and was thereby defrauded; * * * the said R. Tripp failing to execute * * * or procure the execution of a deed to said Des Moines property; the said R. Tripp having no title or interest in said Des Moines property, and no authority to sell or trade the same.” Defendant demurred to this indictment on the grounds that it was bad for duplicity; that the venue was not properly laid in Dallas county; that the instrument set out could and would not import any obligation, and the false making thereof would not be forgery, because the name of the grantee was not filled out, and that the facts stated do not show the commission of an offense in procuring the signature to the deed. The overruling of this demurrer is the basis of the first assignment of error.

In support of the first ground of the demurrer it is argued that the indictment charges two distinct and inconsistent representations, either of which might be the basis of an indictment, in that it charges, first, a representation on the part of the defendant that he was the owner of the Des Moines property; and, second, that he had authority to sell it, and could and would procure a deed therefor,--in effect an allegation that he was an agent for the sale thereof. It must be remembered that the crime charged is the obtaining of a signature to an instrument by false pretenses. This is the gist of the offense. The means used are, of course, material, but it does not follow that each statement made to accomplish the fraud should be consistent with every other. If the representations are made at one and the same time, and each and all constitute an inducement to the main act,--the obtaining of the signature of the party intended to be defrauded,--there is no objection to setting them out in the indictment, although they may not be entirely consistent with each other. That they are inconsistent does not of itself make the indictment bad for duplicity. The fact that defendant made a false promise additional to his false representations, and that this false promise is stated in the indictment as one of the inducing causes, does not take the case out of the statute, or in any way impair the legality of the charge. State v. Dowe, 27 Iowa, 275; State v. Montgomery, 56 Iowa, 195, 9 N. W. 120.

In argument it is contended that the indictment is bad for indefiniteness and uncertainty, in that it charges that the offense was committed in two different and utterly inconsistent ways. Unless this inconsistency amounts to a charge of two separate offenses, the question argued is not raised by the demurrer, and needs no further consideration. We do not think this inconsistency, conceding it to exist, amounts to a charge of separate offenses. The representations are charged as the means used for obtaining the signature, and it is not objectionable to state all the means used, although some of the statements may be inconsistent with others set out. Inconsistency of representation does not go to the validity of the indictment, but to the other question of whether or not the prosecutor was deceived thereby, and induced to sign the instrument. Moreover, we do not think the statements were necessarily inconsistent. As owner of the Des Moines property, defendant had the right to sell and convey, and as owner he could procure a deed of conveyance thereto to Brown. In any event, there was no objection to setting out all of the statements and representations made by defendant as an inducement to the execution of the deed to the Dallas county property. If several are set out, all need not be proven. It is sufficient if one be established. Code, § 5290, provides, in substance, that no indictment shall be held insufficient for any surplusage or repugnant allegation when there is sufficient matter alleged to indicate clearly the offense and the person charged, or for any other matter which was formerly deemed an imperfection, but which does not tend to prejudice the substantial rights of the defendant on the merits. This statute seems to cover all the objections we are now considering. Defendant's contention that the offense is not clearly charged is without merit. As sustaining our conclusions, see State v. Vandimark, 35 Ark. 396; State v. Mills, 17 Me. 211; Com. v. Stevenson, 127 Mass. 446;Com. v. Parmenter, 121 Mass. 354.

The claim that the venue is not properly laid in Dallas county is equally without merit. The words “then and there” clearly refer back to Dallas county. The fact that they immediately follow the description of the different properties as in Des Moines and Dallas county is of no significance. They have reference to the place where the act was done, and not to the description of the property. Surely, a person of common understanding, reading this indictment, would know what was intended, and could not be mistaken as to place where the venue was laid. Strict grammatical construction corresponds with the manifest intent of the pleader, and the second ground of the demurrer is without merit. See Code, § 5290, and Knight v. State, 54 Ohio St. 365, 43 N. E. 995.

Further, it is contended that the deed which it is alleged defendant induced Brown to sign does not and cannot import a legal obligation, for the reason that it was executed in blank. Delivery of the instrument to the defendant is expressly alleged, and...