Westmoreland v. State, 46118

• Decision Date: 25 January 1971
• Docket Number: No. 46118,46118
• Citation: 246 So.2d 487
• Parties: A. F. WESTMORELAND v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 487

246 So.2d 487

A. F. WESTMORELAND v. STATE of Mississippi.

No. 46118.

Supreme Court of Mississippi.

Jan. 25, 1971.

Rehearing Denied March 22, 1971.

Roy O. Parker, Tupelo, for appellant.

A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., and P. Roger Googe, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

SMITH, Justice:

A. F. Westmoreland was convicted of the crime of false pretenses in the Circuit Court of Lee County and sentenced to serve a term of 7 years in the penitentiary, of which 2 1/2 years were suspended on good behavior. He appeals from that conviction and sentence.

The indictment on which Westmoreland was tried, omitting the formal part, was as follows:

(B)eing then and there engaged in the business of selling farm machinery and equipment, feloniously and fraudulently represented to the Peoples Bank and Trust Company, Tupelo, Mississippi, a corporation, that a certain negotiable evidence of debt, to-wit: a conditional sales contract #39227, dated October 19, 1968, and purportedly signed by one D. J. 'Doc' Kitchens, for the purchase of one Self-Propelled New Holland Combine, serial #341792, for the amount of $8950 was a valid contract, representing evidence of a bonafide purchase and a sale agreement between the said D. J. 'Doc' Kitchens and the said A. F. Westmoreland, the said A. F. Westmoreland then and there well knowing the said conditional sales contract to be a false contract and not representing evidence of a valid purchase and sale transaction between the said A. F. Westmoreland and the said D. J. 'Doc' Kitchens, and by virtue of this false representation and false pretense, that the said A. F. Westmoreland did, with intent to cheat and defraud the said Peoples Bank and Trust Company, sell the said conditional sales contract to the said Peoples Bank and Trust Company, and did thereby fraudulently obtain from the said Peoples Bank and Trust Company, Eight Thousand One Hundred and no/100 Dollars ($8100), good and lawful money of the United States, in violation of Section 2150 of the Mississippi Code contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

Neither the sufficiency nor the validity of the indictment was challenged in the trial court by demurrer, motion to quash or otherwise. Moreover, the motion for a new trial, made by Westmoreland following his conviction, did not assign, as a ground therefor, any defect or deficiency in the indictment.

It is now argued, however, that appellant's motion for a directed verdict of not guilty should have been sustained because: (1) The indictment failed to state the ownership of the $8100 obtained from the bank, and (2) the proof was insufficient to show a violation of Mississippi Code 1942 Annotated section 2150 (1956) as alleged in the indictment.

In support of the first of these contentions (that the indictment failed to show ownership of the money), appellant relies on Langford v. State, 239 Miss. 483, 123 So.2d 614 (1960), and the authorities therein cited.

In Langford, the appellant had been indicted for embezzling two cows, and the indictment omitted to state to whom the cows belonged. The Court, in concluding to reverse, said:

The appellant failed to demur to this indictment but he objected to the testimony as to ownership of the property, moved for a directed verdict and requested the Court to peremptorily instruct the jury to find him not guilty. There was also a motion for a new trial, due to the fact that the indictment in this case was void because it did not set out who owned the property alleged to be embezzled. (Id. at 486, 123 So.2d at 616.)

An indictment, of course, constitutes the 'pleading' in a criminal case. Its office is to apprise the defendant of the charge against him in fair and intelligible language (1) in order that he may be able to prepare his defense, and (2) the charge must be laid with sufficient particularity of detail that it may form the basis of a plea of former jeopardy in any subsequent proceedings. There is, however, a trend away from the unnecessary redundancy and prolixity of former times.

The requirements of specificity with respect to allegation of ownership demand neither a deraignment of title nor a statement in 'direct terms' showing perfect title where ownership of the money or As stated by this Court in Neece v. State, 210 So.2d 657, 659 (Miss.1968), in quoting with approval language used in State v. Dodenhoff, 88 Miss. 277, 40 So. 641 (1906):

property obtained reasonably appears from the whole indictment and there is nothing in the indictment to support or suggest any other reasonable conclusion.

Preserving to a defendant the right to be duly informed of the nature and cause of the accusation made against him, there ought not to be, in addition to this, insistence upon forms which are purely technical and surplusage. There are too many reversals by far on technical grounds. They ought to be had, in those cases where the defendant is shown by the testimony to be manifestly guilty, only upon objection having real and substantial merit. 88 Miss. at 288, 40 So. at 643.

In the case here, after identifying beyond question the false writing sold to the bank by appellant and by means of which, the indictment charges, he fraudulently obtained from the bank $8100, in money the indictment continues:

(T)hat the said A. F. Westmoreland did, with intent to cheat and defraud the said Peoples Bank and Trust Company, sell the said conditional sales contract to the said Peoples Bank and Trust Company, and did thereby fraudulently obtain from the said Peoples Bank and Trust Company, Eight Thousand One Hundred and no/100 Dollars ($8100), good and lawful money of the United States, in violation of Section 2150 of the Mississippi Code. * * * (Emphasis added.).

In Cohen v. State, 101 Ga.App. 23, 27-28, 112 S.E.2d 672, 676 (1960), the Court of Appeals of Georgia, speaking to a contention that an indictment insufficiently set out ownership of funds obtained by false pretenses, said:

The indictment in this case alleges that 'Clarence Orr paid the sum of $2,100' for the worthless stock, 'whereby the said Clarence Orr was cheated and defrauded out of the sum of $2,100.' This is a sufficient allegation as to the ownership of the money under the authority of Scott v. State, 53 Ga.App. 61, 66, 185 S.E. 131.

In State v. Timmerman, 88 Utah 481, 487, 488, 55 P.2d 1320, 1323, concurring opinion, 56 P.2d 1354 (1936), the Utah Supreme Court in discussing the question, said:

Appellant, however, argued that the information does not state facts sufficient to constitute a public offense. We undertake to dispose of this question, as the same question may arise upon a new trial. The argument is based upon the contention that, in order to state the offense of obtaining money under false pretenses, the information must affirmatively and specifically allege the ownership of the property, unless there is some legal excuse stated in the indictment or information for omitting the allegation. There is a division of authority upon that question. We need cite only an illustrative case on each side of the controverted question. New Jersey holds squarely in the case of State v. Samaha, 92 N.J.Law 125, 104 A. 305, 306, that: "Actual ownership' of the money or goods by the person upon whom the cheat is practiced is not essential. It is sufficient if he had lawful possession and dominion of the same.' New Mexico and some other jurisdictions hold that an indictment or information for obtaining money by false pretenses is fatally defective unless the ownership of the property is directly and distinctly alleged. State v. Faggard, 25 N.M. 76, 177 P. 748. In the absence of statute the weight of authority, numerically, is with the rule announced by the case last above cited.

In a number of jurisdictions it is held that it is sufficient if it appears from the indictment or information to whom the property belonged. In the case of In Midgley v. State, 29 Okl.Cr. 108, 232 P. 967 (1925), the Criminal Court of Appeals of Oklahoma, in rejecting a contention that an information charging false pretenses was insufficient because it failed 'to allege the ownership' (of the property obtained), said:

People v. Skidmore, 123 Cal. 267, 55 P. 984, the situation was presented of one fraudulently obtaining a signature to a promissory note. It was there held that the facts showed the ownership of the note as fully as though there was a direct allegation in the pleading to that effect. In the instant case it is made to appear from the allegations of the information, although not directly alleged, who the owner of the check was. It is made to appear that the check was the property of the Ostler Candy Company with such certainty that no other implication could possibly arise. We think the information sufficiently alleges ownership, and being attacked on no other ground, the trial court did not err in admitting evidence over objection that the information did not state facts sufficient to constitute the offense charged.

Several assignments of error are presented for the reversal of this case, it being first contended that the amended information on which plaintiff in error was tried is insufficient, in that it fails to allege unequivocally the ownership of the property charged to have been obtained by the false pretenses set out as the basis of the amended information. Numerous authorities are cited to the effect that it is necessary to state to whom the property belonged. The amended information does not in direct terms aver the ownership of the property. This court in the case of Fuller v. Ter., 2 Okl.Cr. 86, 99 P. 1098, upheld an information in practically the same language as the information in this case.

It has been held in other jurisdictions that it is not a fatal defect to fail to allege the ownership in direct terms, if the indictment or information...