Taylor v. Territory

• Decision Date: 03 February 1909
• Citation: 99 P. 628,2 Okla.Crim. 1,1909 OK CR 23
• Parties: TAYLOR v. TERRITORY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

99 P. 628

2 Okla.Crim. 1, 1909 OK CR 23

TAYLOR v. TERRITORY.

Court of Criminal Appeals of Oklahoma

February 3, 1909

Syllabus by the Court.

An indictment for obtaining money by false pretenses, charging that the defendant falsely and fraudulently represented that he was the owner of certain lots, etc., which fails to allege that the prosecuting witness was thereby induced to, and did loan the defendant said sum of money, is fatally defective and a general demurrer thereto should be sustained.

[Ed Note.-For other cases, see False Pretenses, Cent. Dig. §§ 38-41; Dec. Dig. § 31. ^[*]]

In an indictment for obtaining money by false pretenses, the absence of a direct and positive allegation in the description, substance, nature, or manner of the offense, the ambiguity and uncertainty of the language used, cannot be supplied by intendment, argument, or implication.

[Ed Note.-For other cases, see False Pretenses, Dec. Dig. § 26. ^[*]]

If there is any evidence tending to prove that the defendant has committed the offense charged in the indictment, it is not error for the court to overrule defendant's motion, at the close of the evidence, requesting the court to advise the jury to acquit the defendant on the ground that the evidence is insufficient to warrant a conviction.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1727; Dec. Dig. § 753. ^[*]]

In a prosecution for obtaining money by false pretenses, the defendant cannot be convicted if the false pretense was expressed in language alone, unless the pretense be proven by the testimony of two witnesses, or that of one witness and corroborating circumstances. Held, that under the evidence in this case the testimony of the prosecutor was not sufficiently substantiated by the second witness, or by corroborating circumstances.

[Ed. Note.-For other cases, see False Pretenses, Cent. Dig. § 62; Dec. Dig. § 49. ^[*]]

The false pretense must be the assertion of an existing fact, and not a promise to perform in the future.

[Ed. Note.-For other cases, see False Pretenses, Cent. Dig. §§ 5-12; Dec. Dig. § 7. ^[*]]

Error from District Court, Logan County; H. H. Houston, Judge.

John T. Taylor was convicted of obtaining money by false pretenses and he brings error. Reversed.

C. G. Horner, for plaintiff in error.

Chas. West, Atty. Gen. and Chas L. Moore, Asst. Atty. Gen., for the Territory.

DOYLE J.

John T. Taylor, plaintiff in error (hereinafter designated as defendant), was, without preliminary complaint or examination, indicted in the district court of Logan county, Okl. T., September 26, 1907, and was tried and convicted in the district court of Logan county, Okl., for the crime of obtaining money by false pretenses, and on April 3, 1908, he was sentenced to the state penitentiary for the term of one year at hard labor. From this judgment defendant appeals. Numerous assignments of error are presented by the petition. Those argued in the brief are "error of the court in overruling the demurrer to the indictment; admitting incompetent, and rejecting material, testimony; that the verdict is not supported by sufficient evidence and is contrary to law; and error in overruling the motion for a new trial."

After a careful examination of the record, the conclusion of the court is that the judgment in this case cannot be permitted to stand. In the first place, the indictment is insufficient. The Attorney General has filed a confession of error and motion to remand in the case, which motion, omitting the formal part, is as follows: "Comes now the Attorney General of the state of Oklahoma, in the cause above entitled, and states that in his opinion certain reversible errors of the district court of Logan county, from which said cause was appealed, are manifest from the record, and render nugatory and void its proceedings in said cause, in that the indictment upon which the trial was had, and upon which the verdict of the jury and judgment and the sentence of the court are predicated, does not allege facts sufficient to charge the plaintiff in error with a public offense. For the reasons stated, should the court hold said indictment insufficient, it is hereby confessed, for and upon behalf of the state, that the motion of plaintiff in error for a new trial should be sustained, and the cause remanded to said district court with directions to enter such orders therein as may be proper in the premises. Chas. West, Atty. General. Chas. L. Moore, Asst. Atty. General." The defect in the indictment is that it fails to allege that the false pretenses set forth were relied upon by the complainant, or that he was thereby induced to make the loan when so made. To constitute the crime under our statute, three things are essential: First, a false representation as to an existing fact; second, a reliance on that representation as true; and, third, it must be the moving cause which induced the owner to part with his property.

The language of the charging part of the indictment is: "That at and within the county of Logan, territory of Oklahoma, and then and there being on the 23d day of August, in the year of our Lord one thousand nine hundred and five, one John Taylor did then and there unlawfully, fraudulently, designedly and feloniously, with intent to cheat, wrong and defraud W. M. Ayres out of the sum of five hundred dollars ($500.00), of the value of five hundred dollars ($500.00), in good and lawful money of the United States, obtained from the said W. M. Ayres, of the property of the said W. M. Ayres, the said sum of five hundred dollars ($500.00), by then and there fraudulently, designedly, unlawfully and feloniously representing to the said W. M. Ayres, that he, the said John T. Taylor, was the owner of certain lots, to wit, lots seven (7), eight (8), nine (9), ten (10), eleven (11) and twelve (12), in block thirty-five (35), in that subdivision of the city of Guthrie, known as Capitol Hill, in Logan county, Oklahoma Territory; and also that he, the said John T. Taylor, was the owner of certain other valuable property in the city of Guthrie in that part of the city of Guthrie known as, and designated as the Egg; and also that he, the said John T. Taylor, was the owner of valuable property located at Chandler, in Lincoln county, Oklahoma Territory, from which said Chandler property he, the said John T. Taylor, was then and there receiving a rental in the sum of twenty dollars ($20.00) per month, which said representations on the part of him, the said John T. Taylor, were then and there false and fraudulent, as he, the said John T. Taylor, was not the owner of the above described property, or any other property in the county of Logan or in the county of Lincoln, Oklahoma, as he, the said John T. Taylor, then and there well knew; but that he, the said W. M. Ayres, believing said representations that the said John T. Taylor was the owner of the above set out and described property, and believing that the said John T. Taylor was a man of wealth and well able to pay his debts and obligations, was induced to, and did then and there loan to him, the said John T. Taylor, the said sum of five hundred dollars ($500.00), as aforesaid, which said sum of money was then and there the property of the said W. M. Ayres, and which said five hundred dollars ($500.00) was then and there paid to him, the said John T. Taylor, on the said loan, by the said W. M. Ayres."

It is not charged that the defendant pretended or represented himself to be "a man of wealth and well able to pay his debts and obligations," and it is not set forth that, by reason of the false pretenses regarding the ownership of the lots in Guthrie or property in Chandler, he was thereby induced to make the loan. Had the indictment omitted the allegation, "and believing that the said John T. Taylor was a man of wealth and well able to pay his debts and obligations," and at least alleged "that the said W. M. Ayres was thereby induced to and did then and there loan to him," etc., it would have been sufficient. The language of the indictment is not a direct and positive allegation. It is merely an argument or inference that the owner of a few suburban lots in Guthrie would necessarily be a man of wealth and well able to pay his debts and obligations. All the authorities on criminal pleading agree that the absence of a direct and positive allegation in the description, substance, nature, or manner of the offense of false pretense cannot be supplied by any intendment, argument, or implication. The ambiguity and uncertainty of the language used in charging this essential ingredient of the offense is a fatal defect. The money must be distinctly averred to have been obtained by means of the false pretense. State v. Hurst, 11 W.Va. 54; State v. Paul, 69 Me. 215; State v. Chapel, 117 Mo. 639, 23 S.W. 760; State v. Connor, 110 Ind. 469, 11 N.E. 454; Bryant v. Comw., 104 Ky. 593, 47 S.W. 578; Whar. Crim. Law, § 1227.

Second. "The said court erred in refusing, upon defendant's motion, at the close of the evidence of the prosecution, to advise the jury that the evidence of the prosecution was not sufficient to make out or establish a public offense against the defendant and directing the jury to retire and consider of their verdict on such advice of the court." Under this assignment it is contended that the evidence offered was insufficient to prove an offense, and that there is a fatal variance between the allegations in the indictment and the evidence. The prosecution is based on section 2517 Wilson's Rev. & Ann. St. 1903, which provides: "598. Every person, who with intent to cheat or defraud another, designedly, by color or aid of any false token or writing, or other false pretense, obtains the signature of any person to any written...