State v. Whitney

• Citation: 254 P. 525,43 Idaho 745
• Parties: STATE, Respondent, v. H. E. WHITNEY, Appellant
• Decision Date: 14 March 1927
• Court: United States State Supreme Court of Idaho

254 P. 525

43 Idaho 745

STATE, Respondent, v. H. E. WHITNEY, Appellant

Supreme Court of Idaho

March 14, 1927

CRIMINAL LAW-FALSE PRETENSES-ELEMENTS OF-EVIDENCE-FLIGHT.

1. In order to constitute offense of "obtaining money by false pretenses" within C. S., sec. 8474, there must be an intent to defraud, actual fraud committed, and false pretenses must be used for perpetrating fraud, which must be accomplished by means of false pretenses made for that purpose.

2. Essence of crime of obtaining money by false pretenses, in violation of C. S., sec. 8474, lies in obtaining the money with intent to defraud.

3. In prosecution under C. S., sec. 8474, for obtaining money by false pretenses, alleged false pretenses, when oral, must be proved by testimony of two witnesses, or of one witness, and corroborating circumstances in accordance with sec. 8956.

4. In prosecution under C. S., sec. 8474, for obtaining money by false pretenses, the admission of criminal complaint sworn to by prosecuting witness held erroneous, whether admitted for purpose of bolstering testimony of prosecuting witness or in corroboration thereof, within sec. 8956, since it was inadmissible for any purpose, being wholly incompetent self-serving and hearsay.

5. In prosecution under C. S., sec. 8474, for obtaining money by false pretenses, admitting in evidence a circular containing defendant's photograph and description, with request that peace officers keep a lookout and arrest him if found, held erroneous, as being incompetent for proving any element of crime charged, and serving no purpose other than to inflame minds of jury and tend to prejudice them against defendant.

6. Fact of defendant's flight is to be determined by his own movements, and not by those searching for him.

7. In prosecution under C. S., sec. 8474, for obtaining money by false pretenses, admission of evidence as to defendant's fraudulently obtaining automobile license, and of appropriating automobile in which he left state, held erroneous, when considered in connection with instructions on weight and effect of evidence of flight, which failed to require that flight must have been to escape arrest or prosecution for offense charged.

8. Flight in respect to another and different offense is not to be considered as evidence of guilt of offense from which there was no flight.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. O. R. Baum, Judge, Presiding.

H. E Whitney was convicted of obtaining money by false pretenses and he appeals. Reversed and new trial granted.

Judgment reversed and a new trial granted. Petition for rehearing denied.

William Healy, for Appellant.

The crime of obtaining money under false pretenses is not committed by one who obtains a loan by means of false statements as to the purpose for which he desires or intends to use it. (Brill, Cyc., Cr. L., sec. 1236; McClain, Cr. L., sec. 667; Johnson v. State, 57 Tex. Cr. 347, 123 S.W. 143; Commonwealth v. Warren, 94 Ky. 615, 23 S.W. 193; State v. DeLay, 93 Mo. 98, 5 S.W. 607; Urban v. Tyszka, 16 Pa. Dist. Ct. 625; Commonwealth v. Moore, 99 Pa. 570; Reg v. Woodman, 14 Cox (Eng.), 179.)

False representations must be strictly proved as laid in the information. The testimony of the complaining witness was not substantially corroborated. (McClain, Cr. L., sec. 710; People v. Lapique, 10 Cal.App. 669, 103 P. 164; State v. Keep, 85 Ore. 265, 166 P. 936; People v. Neetens, 42 Cal.App. 596, 184 P. 27; State v. Bratton, 56 Mont. 563, 186 P. 327; State v. Brantingham, 66 Mont. 1, 212 P. 499.)

There can be no conviction on charge of obtaining money under false pretenses unless the pretense be proved by the testimony of two witnesses or by one witness and corroborating circumstances. (C. S., sec. 8956; State v. Bratton, supra; State v. Brantingham, supra; State v. Neetens, supra; State v. Howd, 55 Utah 527, 188 P. 628; Smith v. State, 7 Okla. Cr. 136, 122 P. 732; Ericksen v. State, 14 Ariz. 253, 127 P. 755; State v. Taylor, 51 Mont. 387, 153 P. 275.)

The admission in evidence of the criminal complaint was error. (Abbott's Proof of Facts, 4th ed., p. 451; Ibid., p. 453; Vicksburg etc. R. Co. v. O'Brien, 119 U.S. 99, 7 S.Ct. 172, 30 L.Ed. 299.)

Flight must be shown by the movements of the defendant and not by those of the officers. (State v. Hogg, 64 Ore. 57, 129 P. 115.)

Evidence of flight is inadmissible unless it is shown that accused had actual knowledge that he was accused or was about to be accused of the crime for which he is being tried. (People v. Jones, 160 Cal. 358, 117 P. 176; People v. Lem Deo, 132 Cal. 199, 64 P. 265; State v. Sorenson, 157 Iowa 534, 138 N.W. 411; State v. Marshall, 115 Mo. 383, 22 S.W. 452; State v. Van Winkle, 80 Iowa 15, 45 N.W. 388; State v. Frederick, 69 Mo. 400; People v. Brecker, 20 Cal.App. 205, 127 P. 666; People v. Wolfgang, 192 Cal. 754, 221 P. 907.)

It was improper for the court in its instructions to single out for special comment the circumstances of flight. (People v. Wolfgang, supra; State v. Jones, 28 Idaho 428, 154 P. 378; People v. Jones, supra.)

Flight from another offense is not a circumstance to be considered by the jury, and they should be so instructed. (16 C. J. 552, 985; People v. Vidal, 121 Cal. 221, 53 P. 558.)

Proof of flight has no tendency to prove any element of the corpus delicti. (State v. Sullivan, 34 Idaho 68, 17 A. L. R. 902, 199 P. 647; State v. Howd, supra; Territory v. Lucero, 16 N.M. 652, 120 P. 304, 39 L. R. A., N. S., 58; People v. Davis, 14 Cal.App. 117, 111 P. 268; State v. Baird, 13 Idaho 29, 88 P. 233; Alberty v. United States, 162 U.S. 499, 16 S.Ct. 864, 40 L.Ed. 1051.)

Frank L. Stephan, Attorney General, and John W. Cramer and Leon M. Fisk, Assistant Attorneys General, for Respondent.

Where several false pretenses enter into the transaction, proof of any one thereof constituting an operative cause is sufficient to support the verdict. (People v. Ward, 5 Cal.App. 36, 89 P. 874; People v. Meadows, 22 Cal.App. 311, 134 P. 337; State v. Hetrick, 84 Kan. 157, 113 P. 383, 34 L. R. A., N. S., 642.)

The corroboration herein was sufficient. (State v. Gillum, 39 Idaho 457, 228 P. 334; State v. Smith, 30 Idaho 337, 164 P. 519.)

In this class of cases (false pretenses) the circumstances connected with the transaction, the entire conduct of the defendant, and his declarations to other persons, are proper matters for the consideration of the jury, and may be looked to, to furnish the corroborative evidence contemplated by the law. It cannot be said there is not corroborative evidence from which the jury could draw the inference that the defendant made the false statements to the complaining witness. Therefore the verdict of the jury is conclusive, as the jurisdiction of this court under such circumstances is limited to questions of law alone. (People v. Wymer, 53 Cal.App. 204, 199 P. 815; People v. Haskins, 49 Cal.App. 640, 194 P. 43.)

The action of the court in permitting the introduction of certain oral and documentary evidence where no exception is saved thereto will not be reviewed. (State v. Brockman, 39 Idaho 468, 228 P. 250; State v. Ashby, 40 Idaho 1, 230 P. 1013.)

Instructions only suggesting the law applicable if certain facts be found does not invade the province of the jury and is not a charge on the weight of the evidence. (State v. Jurko, 42 Idaho 319, 245 P. 685.)

Flight is a circumstance that may be considered by the jury in determining the guilt or innocence of an accused, and the court may properly so instruct the jury. (People v. Armstrong, 114 Cal. 570, 46 P. 611; State v. Davis, 6 Idaho 159, 53 P. 678; People v. Cox, 29 Cal.App. 419, 155 P. 1010; State v. Stewart, 65 Kan. 371, 69 P. 335.)

In a prosecution for obtaining money under false pretenses, the circumstances connected with the transaction, the entire conduct of the accused, and his declarations to other persons are held proper matters to consider as furnishing corroborative evidence contemplated by law. (People v. Mace, 71 Cal.App. 10, 234 P. 841; People v. Haskins, supra; People v. Wymer, supra.)

BUDGE, J. Wm. E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur.

OPINION

BUDGE, J.

Appellant was convicted of the crime of obtaining money by false pretenses and he appeals. The information filed against him charged that, intending and devising by unlawful ways and means, by false and fraudulent pretenses and representations to obtain from H. L. Morrison the sum of $ 1,000, appellant, on September 6, 1922, at Boise, represented to Morrison that he, with one Scott Anderson, owned a carload of automobiles which were then standing on the tracks of the O. S. L. railroad at Boise; that it was necessary that the freight on said automobiles be paid before the same could be unloaded; that he, appellant, needed the sum of $ 1,000 for the purpose of paying his share of the freight charges; that he was going to make delivery of a car within three days to a man who had ordered one and that on delivery of this car he, appellant, would repay half the sum, and would repay the balance at the end of the month of September, 1922. It was further alleged by the information that these representations were false and fraudulent and known by appellant to be false and fraudulent at the time of making them, and that Morrison, then and there believing the representations so made to be true, and being deceived thereby, was induced by reason thereof to advance and deliver to appellant the sum of $ 1,000.

The prosecution was founded upon the provisions of C. S., sec. 8474, which reads, in material part, as follows:

"Every person who knowingly and designedly by any false or fraudulent representation or pretense, defrauds any other...