State v. Wolf

• Decision Date: 22 October 1926
• Docket Number: No. 25615.,25615.
• Citation: 210 N.W. 589,168 Minn. 505
• Parties: STATE v. WOLF.
• Court: Minnesota Supreme Court

210 N.W. 589

168 Minn. 505

STATE v. WOLF.

No. 25615.

Supreme Court of Minnesota.

October 22, 1926.

Case Certified from District Court, Hennepin County; Gunnar H. Nordbye, Judge.

Franklin T. Wolf was prosecuted for attempting to commit larceny by false representations, and the case was certified. Question certified answered.

C. L. Hilton, Atty. Gen., and Floyd B. Olson, Co. Atty., of Minneapolis, for the State.

STONE, J.

This case is here by certification. The single question is whether the information against defendant accusing him "of the crime of an attempt to commit the crime of grand larceny in the first degree" states facts constituting a public offense.

The substance of the accusation is that defendant, intending thereby feloniously to procure and appropriate to his own use $1,800 of the money of his victim, one Luzaich, falsely represented to the latter that he (defendant) had such standing and influence with Walter F. Rhinow, federal prohibition administrator, that he could cause the said Rhinow to suppress certain evidence in his possession showing that Luzaich had committed an offense against the prohibition laws and prevent a prosecution thereon.

1. One ground of attack on the information is that it does not charge any overt act. The point has no merit. Defendant is accused by the information of having made the representations in question. The making of them is such an outstanding overt act that no further comment is necessary.

2. The main argument for defendant is that inasmuch as his alleged victim, Luzaich, if the information be true, must have been as much of a criminal as defendant, it was no crime to attempt to swindle Luzaich. Even though we assume the premise, the conclusion does not follow.

We are not dealing now with the law of contract, which prevents the enforcement of any assumptual obligation referable to an agreement, otherwise contractual in nature but which is no contract because of the unlawful nature of its subject-matter. In such a case there is, of course, no legal obligation. We are dealing rather with a mandate of statutory law and an alleged violation thereof which if committed was a crime. It is certainly competent for a statute to make it a crime to attempt by false representations to procure the money or other property of another. And if the Legislature by such an act does not limit its application to transactions which but for the false representations would be lawful, it is not for the courts to impose such a limitation and thereby in effect introduce a judicial amendment of statutory law. This is such a case. There is no limitation of the kind just supposed in the statute, subdivision 1 of section 10358, G. S. 1923. It applies by general terms as well to false representations in a transaction which has for its purpose an unlawful or even criminal result as to those made in one the subject-matter and purpose of which are both lawful. It contains nothing to immunize a swindler because...