State v. Yarham

• Decision Date: 16 October 1928
• Docket Number: No. 39387.,39387.
• Citation: State v. Yarham, 206 Iowa 833, 221 N.W. 493 (Iowa 1928)
• Parties: STATE v. YARHAM.
• Court: Iowa Supreme Court

206 Iowa 833

221 N.W. 493

STATE

v.YARHAM.

No. 39387.

Supreme Court of Iowa.

Oct. 16, 1928.

Appeal from District Court, Jefferson County; W. M. Walker, Judge.

The defendant was indicted for the crime of obtaining designedly and by false pretense the signature of Mrs. John Roth to a promissory note in the sum of $26.50. On a plea of not guilty he was tried and found guilty of the charge. Judgment was entered on the verdict, and he appealed. Reversed.John A. Huglin and Otto J. Eckey, both of Fairfield, for appellant.

William W. Simmons, Co. Atty., and Leo D. Thoma, Special Prosecutor, both of Fairfield, and John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

DE GRAFF, J.

The indictment in the instant case is predicated on section 13045, Code 1924, which reads:

“If any person designedly and by false pretense * * * with intent to defraud, obtain * * * the signature of any person to any written instrument, the false making of which would be punished as forgery, he shall be imprisoned,” etc.

The written instrument in question is as follows:

+----------------------------------------+
                ¦“$26.50¦Fairfield, Iowa.¦March 24, 1927.¦
                +----------------------------------------+
                

“On demand for value received, I promise to pay to C. H. Yarham, or order, at Des Moines, Iowa, twenty–six 50/100 dollars, given for labor and material to be used in making rugs for family use in the home, with interest at 8 per cent. after sixty days and all costs of collection permitted by law including a legal collection fee. Mrs. John Roth, 908 S. Main Street. (Please write plain.)

The primary errors involve (1) rulings on objections to the admission of testimony relative to the denial of the United States Post Office Department in the use of the mail by the defendant in his rug business; (2) rulings on objections in the admission of evidence of similar transactions; and (3) the sufficiency of the evidence with a special reference to the motion of the defendant for a directed verdict at the close of the state's evidence. The evidence offered by the state in the first instance was not persuasive, and the motion for a directed verdict at this point should have been sustained.

By way of brief review of the facts it may be stated that the appellant was a resident of Des Moines, engaged in the business of soliciting old materials for the purpose of making the same into rugs. He was a man 70 years of age and had been engaged in this particular class of work for 16 years. He operated under the trade–name of the Advertising Rug Company. At the time in question he was pursuing his vocation in Fairfield, Iowa, and, on March 24, 1927, called at the home of Mrs. John Roth. Pursuant to a conversation between them she decided to acceptthe proposition of the appellant and at the time the appellant prepared the order which was denominated as “Itemized Statement.” This statement was addressed to Mr. and Mrs. John Roth, Fairfield, Iowa, and bore the caption:

“In Account with the Advertising Rug & Clothing Company, 1504 Eleventh Street, Des Moines, Iowa.

“C. H. Yarham, Mgr., Collectors for and Distributors of Reliable and Dependable Rugs Made from Old Carpets, Rugs, Clothing, Chenille Curtains,” etc.

The body of the statement then read:

“Your order was taken with promissory note given as an acceptance of and in settlement for same and dated March 24, 1927, with payment due on demand at Des Moines.

The rugs as per your order cost you $31.00

Your credit by cash you paid, surplus stock or material not needed to make up your order, $4.50.

Balance you owe after making all allowances and if this does not correspond with the copy left with you by the agent please notify us at once, $26.50.

The total amount of your bill is now due, $26.50.”

The statement also contains directions how to remit to the company and specifically recites, “Read the copy left by the agent which contains the entire contract,” and that “all goods should be paid for before being shipped.” There is also this provision in the statement:

“If you did not make the advance payment of 40 per cent. when the order was taken, but in lieu thereof gave your note for the entire amount instead, do not neglect it for it must be paid as you agreed to do when you signed it, and as soon as we get our money we will send your note properly canceled.”

It appears that, after the appellant and Mrs. Roth had agreed upon the details of the transaction, a tablet which contained blank memorandum orders or “Itemized Statements” and promissory notes was produced by the appellant. The instruments in evidence were then properly filled out and handed Mrs. Roth for her signatures. She then and there signed the two documents. It is admitted that the two instruments signed by Mrs. Roth were executed in duplicate and that the duplicate copy was given to Mrs. Roth and kept by her. The appellant's testimony in this particular is in no way challenged. His story is as follows:

“After we had made the arrangement, I handed the tablet to Mrs. Roth and showed her where to sign it. The tablet had a memorandum of the items showing the weight of materials that I got, and above all the sizes of the rugs and numbers of the rugs and what each rug was to cost. I filled it all out. Exhibit A (the note) is the lower part of the white top sheet. Exhibit D1 (memorandum of agreement) is the top part of the white sheet. The two go together. Exhibits A and D1 are just one sheet with perforations. I had a big tablet of them. The white sheet was on top and the colored pink or yellow sheet was on the under side with the carbon paper in between. I showed her where to sign in two places.”

Mrs. Roth admits that she signed her name twice; that she signed no other order; and that he kept the white sheet and gave her the yellow. It is undisputed that she had possession of the duplicate sheet at all times after the time it was delivered to her by the appellant. She admits that she had an opportunity to read it, but did not, although she could read the English language. There was no attempted concealment, active or otherwise, by the appellant of the instruments in question.

At this point the false pretense enters and is based on the statement of Mrs. Roth, to wit:

“He just handed me the paper, and says, ‘You sign this.’ I says, ‘What is it?’ He says, ‘Just a memorandum of your order; that is all it is;’ and he says, ‘You sign it here and sign it here;’ and I never read it, and I signed it in both places as indicated by him.”

With this factual setting in mind we turn to the propositions involving the rulings of the trial court on the objections of the defendant to the admission of certain evidence which must be viewed as quite prejudicial in character.

[1] I. When the defendant's motion for a directed verdict was overruled at the close of the state's evidence in chief, the defendant himself took the witness stand. As such witness he was entitled to invoke the statutory limitation and to have the statute applied. It will be borne in mind that the defendant's objections which were overruled had to do with testimony that was elicited by the state on the cross–examination of the defendant. When a defendant testifies in his own behalf he is subject to cross–examination as an ordinary witness, “but the state shall be strictly confined therein to the matters testified to in the examination in chief.” Section 13892, Code 1924.

[2] The instant record discloses that the following question...