State v. Van Ruschen
| Decision Date | 30 December 1916 |
| Docket Number | 3979. |
| Citation | 160 N.W. 811,38 S.D. 187 |
| Parties | STATE v. VAN RUSCHEN. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Turner County; J. W. Jones, Judge.
H. Van Ruschen was convicted of crime, and he appeals. Affirmed.
Spangler & Haney, of Mitchell, Bogue & Bogue, of Centerville, and Jones & Jones, of Parker, for appellant.
Clarence C. Caldwell, Atty. Gen., Byron S. Payne, Asst. Atty. Gen and D. E. Hanson, State's Atty., of Parker, for the State.
Appeal from a judgment of conviction and an order overruling a motion for a new trial.
The information alleges:
"That H. Van Ruschen, late of, etc., *** did then and there willfully, unlawfully, feloniously and designedly and with intent to cheat and defraud one Tetta Lammers, by color and aid of a false token and writing, and by falsely representing that a certain written instrument, which the said Tetta Lammers did then and there execute and deliver to said H. Van Ruschen, as follows, etc. (here is set forth in haec verba an instrument purporting to be a release reciting payment, satisfaction and discharge, of a mortgage executed by defendant and his wife to Tetta Lammers, dated January 31, 1912, and duly recorded, covering thirty-nine lots in the town of Marion Junction), was only a partial discharge of a certain real estate mortgage (describing the mortgage above referred to), and released said mortgage only as to the three lots (describing them), and by means of said false representations and pretenses obtained the signature of said Tetta Lammers to the said written instrument, to wit the said release of said real estate mortgage; whereas in truth and in fact the said written instrument *** was not a release and satisfaction of said mortgage as to (three lots) but was in truth and in fact a release and satisfaction in full of said real estate mortgage; and said H. Van Ruschen had paid upon said indebtedness only the sum of $150.00; all of which was well known to him, the said H. Van Ruschen, and that Tetta Lammers relied upon the representations so made by the said H. Van Ruschen, contrary," etc.
At the opening of the trial, the defendant objected to the introduction of any evidence for the reason that this information does not allege facts constituting a public offense. The information is drawn under section 645, Penal Code, which provides:
"Every person who, with intent to cheat or defraud another, designedly, by color or said 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.
No "false token or writing" is attempted to be alleged or set out or identified in the information, and that clause in the information may be treated as surplusage. Under this statute, false pretenses by oral statements or representations may constitute one element of the crime, without either "color or aid of any false token or writing." Barton v. People, 135 Ill. 405, 25 N.E. 776, 10 L. R. A. 302, 25 Am. St. Rep. 375; 11 R. C. L. 838 (18).
Appellant's first contention is that this information fails to state facts which constitute a crime under the statute, in that there is no allegation that Tetta Lammers was induced by any false representation to subscribe her name to said release of mortgage, in that there is no allegation that she was in any manner or degree cheated or defrauded, in that it is not alleged that any trick, artifice, or deception was used, excepting the bare statement that the writing was a release of 3 lots, when in fact it was a release of 39 lots.
The information is inartistically drawn, but we think sufficiently charges that the accused, designedly and with intent to cheat and defraud Tetta Lammers, obtained her signature to a release or discharge of a real estate mortgage executed to her by accused and his wife for $1,000 covering 39 lots, on which indebtedness only $150 had been paid, by falsely representing to her that said discharge was an instrument or writing which released only 3 of said lots, whereas in truth and fact said instrument was not a release of 3 lots, but was a release in full of the mortgage covering 39 lots, all of which was well known to him; and that Tetta Lammers relied upon the representations made to her by the accused. The intent to defraud, the designedly false representation, her reliance thereon, the obtaining her signature thereby, and her injury, constitute the essential elements of the statutory crime.
Appellant's real contention appears to be that a false representation, that the written instrument released but 3 lots, when on its face it released 39 lots, could not have deceived a person of ordinary intelligence; that she must be presumed to have ordinary intelligence; and that she had at hand the means of detecting the falsehood, and could not have been deceived by false representations as to the contents of an instrument which she had before her when she signed it. It is urged that such an allegation would not be sufficient ground for setting aside a contract in a civil action, much less to convict of a crime, citing Finlayson v. Finlayson, 17 Or. 347, 21 P. 57, 3 L. R. A. 801, 11 Am. St. Rep. 836; Farlow v. Chambers, 21 S.D. 128, 110 N.W. 94. The decision in the latter case was grounded upon negligence disclosed by the evidence, and, as stated in the opinion, was not "one in which the signer was prevented from ascertaining the truth by subterfuge or some fraudulent device." Where fraud is alleged, the former doctrine of due care and diligence to avoid being cheated has given way, under more recent authorities, to what Mr. Black terms the "doctrine of comparative intelligence."
"In such case the signing of the paper, without reading it, involved more than the negligence of the signer, since the signature itself was procured by the fraud of the other." Herreid v. C., M. & St. P. Ry. Co., 159 N.W. 1064.
This rule is amply sustained by the authorities. People v. Cummings, 123 Cal. 269, 55 P. 898; Lefler v. State, 153 Ind. 82, 54 N.E. 439; People v. Bird, 126 Mich. 631, 86 N.W. 127; State v. Southall, 77 Minn. 296, 79 N.W. 1007; Miller v. People, 22 Colo. 530, 45 P. 408; Johnson v. State, 36 Ark. 242; Oxx v. State, 59 N. J. Law, 99, 35 A. 646; State v. Stewart, 9 N. D. 409, 83 N.W. 869.
The information was sufficient to advise the accused of the nature and cause of the accusation and to enable him to prepare his defense as well as to enable him to plead a conviction or acquittal in bar of another prosecution upon the same transaction. Whether the representations were made, were false, were intended to defraud, and were relied upon and actually deceived Tetta Lammers, were all matters of fact to be proved under the allegations of the information. State of West Virginia v. Hurst, 11 W.Va. 54; People v. Jefferey, 82 Hun, 410, 31 N.Y.S. 267; Clifford v. State, 56 Ind. 245; State v. Butler, 47 Minn. 483, 50 N.W. 532; Norris v. State, 25 Ohio St. 217, 18 Am. Rep. 291.
At the trial, evidence of Tetta Lammers tending to show that she could not read English print or writing, and that she believed and relied on Van Ruschen's statement that the instrument she signed released from the mortgage only 3 of the 39 lots, was received over proper objections, and error is assigned. This evidence was clearly competent. Appellant also assigns as error insufficiency of the evidence to sustain the verdict, in that Tetta Lammers had the instrument she signed before her own eyes at the time she signed it, and had the means of knowing the truth in her own hands, and therefore could not have been deceived as to the contents of the instrument. This contention perhaps has been sufficiently answered in what we have already said as to the sufficiency of the information.
The question here, however, is as to the legal sufficiency of the evidence to establish the fact that Tetta Lammers was induced to sign the release by false statements made to her with fraudulent intent by the accused. She testified in substance as...
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