Utley v. State
| Decision Date | 13 March 1922 |
| Docket Number | 218 |
| Citation | 238 S.W. 607,152 Ark. 407 |
| Parties | UTLEY v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Craighead Circuit Court, Jonesboro District; R. E. L Johnson, Judge; reversed.
Judgment reversed and cause remanded.
Appellant pro se.
The court erred in refusing to give instruction 9 and 10, to the effect that where a party does not rely upon statements, or relies upon a separate investigation, he cannot be heard to complain of false pretense. 42 Ark. 131; 49 Mo. 542; 141 Ark 633; 25 C. J. 599.
Instruction No. 10, given by the court, was manifestly erroneous, for it withdrew from the jury every defense the defendant could have had, except that of a full written receipt or satisfaction of the note or an adjustment by litigation. Murrey v State, 150 Ark. 461; 25 Corpus Juris, 602, p. 31, note 7.
Instruction No. 8 should have been given, for the defendant had such interest in the property as he might convey, which, taken with his claim of credit, ought to have been submitted to the jury. 92 Ark. 254; 92 Ark. 530.
There was a variance between the allegations of the indictment and the proof. 37 Ark. 443; 37 Ark. 445. The indictment having specifically described the check, the proof should have been equally specific. 60 Ark. 143; 71 Ark. 418; 84 Ark. 286; 85 Ark. 501; 62 Ark. 538; 29 Ark. 68; 70 Ark. 30; Clemons v. State, 150 Ark. 425. The proof must correspond with and support the averment. 25 C. J. 638, 875-2, note 46; 120 Ark. 237; 70 Ark. 30; 112 Ga. 226; 57 S.W. 813; 152 N.W. 378.
J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
Where an offense is committed partly in one county and partly in another, the jurisdiction is in either county. C. & M. Digest, § 2875; Wharton's Criminal Law, vol. 2 (11th Ed.) sec. 1473.
Instruction No. 10, requested by the defendant, was riot the law and the court was right in refusing it. Wharton's Crim. Law, vol. 2 (11th Ed.) § 1440; 59 Ark. 375.
It is not necessary that the false pretense should have been the sole inducement to part with the property. 59 Ark. 375; Wharton's Crim. Law, § 1440.
Appellant cannot complain of the failure to submit an issue where he requested no charge thereon. 89 Ark. 300; 95 Ark. 593; 75 Ark. 373; 77 Ark. 477; 86 Ark. 360; 104 Ark. 322.
The vendor of personal property reserving title to same may recover it if any part of the purchase price remains unpaid. 92 Ark. 598.
Representations to be fraudulent must be material. 12 Ga.App. 695; 78 S.E. 202.
Identification of a check is sufficient although it does not correspond exactly with the one pleaded. 173 Mass. 541; 54 N.E. 353.
The appellant (defendant below) was convicted on an indictment which charged that he "did unlawfully, feloniously, designedly and with intent then and there to defraud and cheat Joe Stevens, falsely represent and pretend that he was the owner of one black horse and that same was not incumbered, whereas in truth and in fact the title to said horse was in one G. W. Culberhouse, all of which the said defendant then and there knew, and knew that each of said pretenses was false; by means and color of which said false pretenses, he, the said H. T. Utley, induced the said Joe Stevens to purchase said horse for the sum of one hundred-fifty dollars, * * * * * * * and did then and there unlawfully, feloniously, designedly, intentionally, with intent then and there to defraud and cheat said Joe Stevens, obtain from the said Joe Stevens a bank check on the Bank of Truman, Truman, Arkansas, for the sum of one hundred-fifty dollars, payable to said H. T. Utley, of the value of one hundred-fifty dollars, the property of Joe Stevens," etc.
It was shown by the State that on February 8, 1920, the appellant executed a note to G. W. Culberhouse for the sum of $ 224. The note, among other things, contained the following provision: "This note evidences the balance due upon the purchase price of the following described property, to-wit: one black horse known as the 'Bowen horse;' one gray horse known as the 'Massey horse;' one set of double harness. It is hereby agreed and understood that title to the above described property shall be and remain in the payee herein until the purchase price thereof shall have been fully paid.
(Signed) "G. N. UTLEY.
"H. T. UTLEY."
Culberhouse, among other things, testified that he sold Utley two horses and a pair of harness; that one of the horses was a black horse. He took the note above mentioned in payment for the same. He never authorized Utley to sell the horses. He afterwards found the black horse in the possession of Joe Stevens, and got the horse back after a lawsuit with Stevens. Utley never paid for the horse.
Stevens testified that he bought from Utley a mare and a horse. The horse was black. He paid Utley by check on the Bank of Truman, which he supposed was cashed. The check came back to him canceled and endorsed by Utley. It was charged up to him. Witness stated that when he was negotiating for the purchase of the horse Utley said that he got the horse from Jim Bowen- -that they were Jim Bowen horses. "I told him," said the witness, "I always made it a rule to ask if the stock was in the clear." He replied, "They are in the clear." Culberhouse afterward replevied the black horse from witness. Witness bought on the statement of Utley that the horses were clear of incumbrance. Witness stated that the trade was made in Craighead County, but that he actually accepted the horses in Poinsett County. Witness stated that, after Culberhouse recovered the horse from witness, Utley had paid witness $ 50 and gave him a note for the balance of the purchase price, which witness accepted in payment of his claim.
The appellant testified that he had a contract for doing dirt work on a certain road, and bought a bunch of mules from Culberhouse for which he agreed to pay the sum of $ 100 per month. He sold one pair of these mules and turned the notes for the purchase money over to Culberhouse, and Culberhouse accepted the same in settlement for those mules. Witness was sick, and had to go to the hospital. While there, Culberhouse took all of his (Culberhouse's) mules back but one, which was crippled, and also took two mules that witness bought from Mr. Sells; that he gave witness no credit for them; that witness bought two wagons from Jonesboro Supply Company, for one of which he paid cash. A few days after witness got out of the hospital Culberhouse priced him some horses at $ 375 and said to witness that he (Culberhouse) owed witness the sum of $ 150 as balance on the stuff that he had taken from witness and sold, and he stated to witness that he would give witness credit for the $ 150 as part of the purchase price of the horses, and witness could execute his note to him for the balance of $ 225, which witness did. Culberhouse guaranteed that the horses were sound. Witness afterwards discovered that one of the horses was blind, and asked Culberhouse to take the team back at the same price. Culberhouse said he did not have time to fool with them, and asked witness to sell them to some loggers down there. Witness then advertised the horses for sale all over the neighborhood. Stevens bought them. Culberhouse brought suit for the horses. Witness told Stevens if he lost the horses witness would pay him, and he did. This was settled before there was any indictment against witness. Culberhouse had no lien whatever on Sells' mules that he took from witness. Culberhouse also took harness belonging to witness for which witness had paid the sum of $ 50. On one other occasion witness had sold a team on which Culberhouse had a lien, and turned the note over to Culberhouse, and it was agreeable to him. Witness had no reason to believe that Culberhouse would object to his selling the horses after he had agreed...
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