State v. La Vere

Decision Date15 December 1922
Docket NumberNo. 34843.,34843.
Citation191 N.W. 93,194 Iowa 1373
PartiesSTATE v. LA VERE.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Fayette County; H. E. Taylor, Judge.

The defendant and one Lester J. Reysa were indicted upon charge of designedly and by false pretense obtaining the signature of G. O. Smith to a promissory note. The defendant La Vere, having elected to be tried separately, was found guilty as charged, and from the judgment entered upon the verdict he appeals. Affirmed.A. E. McGlashan, of Denver, Colo., and R. S. Milner, of Belle Plaine, for appellant.

Ben J. Gibson, Atty. Gen., and John Fletcher, Asst. Atty. Gen., for the State.

WEAVER, J.

The appellant assigns no less than 60 separate alleged errors of the trial court, some of which are subdivided into many distinct propositions. While it is manifestly impracticable for us to follow counsel in detail upon all the points thus raised, we think a disposition of the main or principal question discussed in the briefs––the sufficiency of the evidence to sustain the verdict of the jury––will govern our ruling upon most of the contentions pressed upon our attention in argument.

[1][2] I. In June, 1921, the prosecuting witness, G. O. Smith, signed and delivered to one Slifka his promissory note for $2,838. On the charge that the defendant James La Vere, alias J. A. Ward, and his codefendant, Lester J. Reysa, alias Ray Leslie, with intent to defraud said Smith, designedly and by false pretense obtained the signature of said Smith to said written instrument, they were jointly indicted for said alleged offense, and the appellant, being separately tried, was found and adjudged guilty. The theory of the state's case is that some time prior to the making of said note the man Reysa, being or pretending to be acting as salesman of the corporate stock of the Atlas Wheel Company, an alleged corporation of the state of Ohio, solicited Smith, a farmer, to subscribe for such stock, and that defendant La Vere, acting in collusion with Reysa, assisted the latter in obtaining such subscription by representing to said Smith that he himself had purchased a large amount of said stock and that it was good and valuable property. Upon such representation, it is further claimed, and induced thereby, Smith made and delivered to Reysa his promissory notes to the amount of $30,000. It appears that Smith was induced to believe, and as a witness seems to still understand, that he was subscribing for shares of stock in said company, but no shares or certificate therefor was then or has ever been delivered to him. On the contrary, when that transaction was consummated, Reysa procured from Smith the notes of the latter to the amount of $30,000, together with a written memorandum reading as follows:

“Oelwein, Iowa, May 26, 1921.

I hereby authorize the bearer to purchase for my account 300 shares of the Atlas Wheel Company of Cleveland, Ohio, paying therefor the sum of $30,000.

[Signed] G. O. Smith.”

Having obtained the $30,000 in notes, Reysa, with the active assistance and co–operation of the appellant, set about converting them in whole or in part into money, but, finding difficulty in doing this, except in part, they both went to Smith, the appellant still posing as a purchaser or holder of stock in said company, and professing his purpose to take an additional $20,000 worth of it, proposed to him the following method of raising money to be used by Smith in payment for shares of the wheel company's stock: They informed him that a certain automobile dealer in Waterloo would take a new Willys–Knight car and pay therefor $2,500 in cash, and that if he (Smith) would purchase a car of that kind from Slifka, a dealer at Waucoma, giving a promissory note for it, they would take the car to Waterloo and collect the price for his use. To this Smith agreed, and both defendants then took him to Waucoma, where the deal with Slifka was made, and Smith executed and delivered the note mentioned in the indictment for $2,838. Smith at once turned the car over to the defendants to complete their part of the program by delivering it to the alleged dealer in Waterloo and obtaining the money therefor. To witness their authority to sell the car, Smith at their request made an informal bill of sale to the appellant. As a witness appellant admits taking the bill, but says it was at a later date, when they had reported to Smith their inability to make the sale in Waterloo, and that it was then agreed that appellant should take the car and find a purchaser for it. Which story in this respect is correct is not very material, for it is conceded or shown without dispute that within a very few days appellant sold or exchanged the car for another, and he makes no pretense that he ever accounted therefor to Smith. It is also made to appear that the representation that defendants, or either of them, had a customer or buyer in Waterloo who would take the car or pay therefor was false, and must have been known by them to be false, and that the transaction was a cunning device by which defendants got possession of a new car at Smith's expense and converted it to their own use.

Appellant was the only witness offered in support of the defense, and it is true he denies much of the evidence offered by the state; but his veracity and the weight and value of his testimony was for the jury. There is much in his admissions and in the story of his conduct, as related by the witnesses for the state, to cast suspicion and doubt upon the case he seeks to make. It is his claim that his part in the transaction was that of a mere friend of Reysa, who invited him to help in getting Smith's notes cashed, and offered him a 10 per cent. commission for doing so, and that Reysa was the principal and only reasonable party in bringing about the deal of which Smith complains. But if Smith's story be true, and its truth was for the jury alone, appellant allowed himself to be introduced to Smith by Reysa as the freight agent of the Illinois Central Railway Company at Independence; he contributed the weight of his pretense to be a holder of such stock in victimizing Smith; he was in close co–operation with Reysa in trying to cash Smith's notes, and did in fact, as we understand the record, negotiate a part of them, obtaining Liberty Bonds therefor; he assisted Reysa in bringing about the deal with Slifka, in which the note here in controversy was given; it was his promise to take the car to the pretended buyer in Waterloo and collect the money for Smith's benefit; it was he who got the bill of sale from Smith and converted the car to his own use. That the jury should find him guilty on such showing is not at all strange, and certainly the verdict cannot be said to be lacking in support in the evidence.

[3][4][5] II. It was drawn out in the cross–examination of Smith that, after he made the note to Slifka for $2,838, Reysa returned to him $2,500 of the notes given in the original transaction, and later “gave him credit for an additional $100.” It is argued that because of this showing Smith was not in fact defrauded, and therefore no conviction could rightfully be had upon the indictment in this case. Reference to the statute (Code, § 5041) will show clearly the essential elements constituting the...

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