State v. Wood

• Citation: 77 S.D. 120,86 N.W.2d 530
• Decision Date: 09 December 1957
• Docket Number: No. 9646,9646
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. E. J. WOOD, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 530

86 N.W.2d 530

77 S.D. 120

STATE of South Dakota, Plaintiff and Respondent, v. E. J. WOOD, Defendant and Appellant.

No. 9646.

Supreme Court of South Dakota.

Dec. 9, 1957.

Jerry G. Brennan and Walter J. Bradsky, Rapid City, for defendant-appellant.

Phil Saunders, Atty. Gen., George W. Wuest, Asst. Atty. Gen., Pierre, for plaintiff-respondent.

ROBERTS, Judge.

Defendant was convicted in the Circuit Court of Pennington County of the crime of obtaining money by false pretenses, charged in the information to have been committed as follows: 'That the said E. J. Wood on the 10th day of April A. D. 1956, at Rapid City, in the County of Pennington and State of South Dakota did wilfully, unlawfully, and feloniously and designedly, by color or aid of a check dated April 9, 1956, drawn on the Sundance State Bank of Sundance, Wyoming, payable to the Rapid Business Buyers in the sum of $390.00, signed by D. H. Bryon, which said check the defendant then and there knew to be wholly and completely worthless, obtain from the Gamble's Store of Rapid City, South Dakota, credit and cash in the total amount of $390.00. Said false pretense consisting in this; that the said defendant at said time and place knew of his own knowledge that the payment had been stopped on said check by order of the maker thereof, D. H. Bryon, and full knowing of said fact, exchanged said check pretending that the same was a good and valid instrument for said money from the Gamble's Store of Rapid City, South Dakota, with intent to defraud, contrary to Section 13.4202 of the South Dakota Code of 1939.'

Defendant has appealed from the judgment of conviction assigning numerous errors which include the overruling of objection made at the beginning of the trial to the introduction of any evidence, and in arrest of judgment, on the ground that the information failed to charge a public offense. SDC 34.3514 specifies five grounds upon which a demurrer may be interposed to an information. SDC 34.3515 provides that these objections can only be taken by demurrer 'except that the objection to the jurisdiction of the Court over the subject of the indictment or information or that it does not describe a public offense may be taken at the trial under the plea of not guilty, and in arrest of judgment.' This section further provides that 'a ruling or order at the trial sustaining an objection interposed by the defendant to the introduction of any evidence under the indictment or information shall have the same effect as a ruling or order sustaining a demurrer based on the same grounds.' If it appears that the facts alleged do not constitute a public offense, the information may be attacked by objection to the introduction of any evidence. See State v. Egan, 44 S. D. 273, 183 N.W. 652. The record fails to disclose a basis for the assertion that the question of the sufficiency of the information is not properly before this court for decision.

The pertinent provisions of SDC 13.4202 defining the crime of obtaining money or property by false pretenses read as follows: 'Every person who designedly, by color or aid of any false token or writing, or other false pretense * * * obtains from any person any money or property * * * is punishable by imprisonment in the State Penitentiary * * *.'

The essential elements of the offense against which the statute is directed are a false representation of a material existing or past fact, knowledge of its falsity, intent to defraud, reliance by the victim on the false representation, and surrender to the defendant of money or property because of the false representation. State v. Van Ruschen, 38 S.D. 187, 160 N.W. 811; State v. Paul, 41 S.D. 40, 169 N.W. 739; State v. Taylor, 44 S.D. 332, 183 N.W. 998; State v. Alick, 62 S.D. 220, 252 N.W. 644; State v. Pickus, 63 S.D. 209, 257 N.W. 284; State v. Lien, 72 S.D. 94, 30 N.W.2d 12.

The challenge to the information is based upon the assertion that it does not describe with reasonable certainty the offense sought to be charged; that it does not allege to whom the false representation was made or that there was any reliance upon the representation. The information charges that defendant by means of the false pretense described in the information did designedly 'obtain' from the Gamble's Store of Rapid City, South Dakota, the sum of $390. An information is sufficient if it states the elements of the offense with sufficient particularity to apprise the defendant of the crime charged and to enable him to prepare his defense and to be...