Woodruff v. State
| Decision Date | 15 July 1895 |
| Citation | 32 S.W. 102,61 Ark. 157 |
| Parties | WOODRUFF v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Perry Circuit Court ROBERT J. LEA, Judge.
Judgment reversed and case remanded.
Dan W Jones, J. E. London, J. F. Sellers, G. W. Murphy and T. M Seawell, for appellant.
1. The indictment is insufficient, because (a) it is not in the words of the statute, or their equivalent. The statute uses the words designedly obtain; the indictment charges "did fraudulently and feloniously obtain," etc. The obtaining must be designedly and not fraudulently and feloniously. 2 Whart. Cr. Law, p. 631; 26 Am. St. 789. (b) The indictment should allege that the coupons or receipt were delivered to the board, and that the order was delivered to defendant in exchange for said coupons or receipts. 90 Ind. 504; 103 Ind 235; 71 Mich. 296; 63 Mo. 484; 10 Metc. 521; 31 Me. 401. (c) The indictment does not allege the duty of defendant to receive the coupons to be exchanged for certificates, nor did it allege his duty to present them to the board for exchange. 64 Ind. 498. It must contain all facts and circumstances necessary to be proved. 13 Wend. (N. Y.), 311. (d.) The order, as described, is an instrument unknown to the law. It does not show on its face its validity from a commercial or legal standpoint. 34 Vt. 502; 109 Ind. 407.
2. It was error to refuse the 2d prayer for defendant. 76 Mo. 180. If defendant was the owner of coupons, he could not be convicted, no matter what representations he made. 3 Hill (N. Y.), 179. The signatures of all the members of the board were necessary to make the order valid. A majority could not act. There is no law authorizing such an order. The order was not the subject of forgery, and was of no validity. 75 Ind. 553; 20 A. 753; 13 S.W. 827; 5 Neb. 174; 25 Ark. 263; 34 Mich. 80; 34 Vt. 502; 109 Ind. 407; 29 Am. Rep. 25; 55 id. 475. The writing should have been set out in the indictment. 7 S.W. 534; 24 Tex.App. 132; 25 id. 451-74. The name of Johnson L. Jones cuts no figure, even if fictitious, as the coupons were payable to bearer. Wash. Man. Cr. Law, p. 39. The indictment did not charge that Johnson L. Jones, and John L. Jones were the same party, and it could not be proved. 32 Ark. 609; 65 Mo. 490; 61 Ala. 448; 14 Tex. 332. A specific intent to defraud was necessary. 76 Mo. 180; 54 Ark. 489. The materiality and influence of the pretense was a question for the jury. 34 N.Y. 351; 14 Ill. 348. The status of defendant's account was not admissible, and the evidence of such was incompetent and tended to prejudice the jury. 13 Wend. (N. Y.), 311. The representations must be false as to all the coupons, and not one or more. 7 Allen, 548; 33 Tex. 162; 31 Ind. 514; 30 Ala. 9; 31 Ind. 519. The court erred in presuming an intent to defraud. 54 Ark. 497; 76 Mo. 180.
3. Eagle's testimony was improperly admitted; also Chism's. The report of the board was the best evidence. 55 Ark. 221; 33 id. 833. The opinions of witnesses not admissible. 29 Ark. 448; 58 id. 396. The record is the best and only evidence as to the status of defendant's accounts.
4. Hudson's and DeWoody's evidence should have been excluded. 1 Gr. Ev. (Redf. ed.) sec. 436.
5. The testimony of Simms was not competent. The record was the best evidence. 55 Ark 221; 33 Ark. 833.
6. The deposition of Bell was competent. 42 Ark. 285-8; Gr. Ev. vol. 1, sec. 154; 45 Mo. 267; 60 id. 365.
7. The statements of the prosecuting attorney were prejudicial. 16 U.S. 119; 58 Ark. 474; 150 U.S. 76.
8. The evidence does not sustain the verdict.
9. A cheating by which a party only gets a different kind of security, or the satisfaction of indebtedness, is not a violation of law, no matter what pretense is made. 3 Hill, 769; 37 Ark. 445; 7 Am. & Eng. Enc. Law, p. 712, note 8, p. 713.
10. A falsehood does not necessarily imply an intent to defraud. 2 Bish. Cr. Law, sec. 380; 14 Iowa 412; 6 Mich. 496. In this case no injury was done. 55 Ark. 244; 15 N.W. 298.
E. B. Kinsworthy, Attorney General, for appellee.
1. The demurrer was properly overruled. 115 Mass. 481; 35 N.J.L. 445; 9 Col. 470; 101 N.C. 741; 83 N.Y. 436. The act provides that every person who obtains a signature * * to any written instrument, etc., shall be guilty, etc. The order was of value. Sand. & H. Dig. secs. 1573, 1697. It was assignable. Ib. secs. 489, 5623. Being assignable, it was of value. 35 N.J.L. 449, 454; 3 Hill, 211. The order could have been forged. Sand. & H. Dig. 1595, 1610; 18 S.W. 833; 12 id. 264; 1 id. 886; 12 id. 595; 26 id. 78; 5 Ark. 349; 51 id. 88.
2. Some of the instructions asked by appellant correctly state the law; but the court covered these in others given, and it was needless to repeat them. 46 Ark. 11; 52 id. 180; 53 id. 117; 50 id. 545. As each coupon was for an amount greater than $ 10, there could be no petit larceny. 50 Ark. 506. It was as much a crime to secure the signature of one member of the board as it was to falsely secure the signature of all. 7 S.E. 723; 69 N.C. 313; Sand. & H. Dig. sec. 2276; 45 Ark. 452. When sec. 1573, Sand. & H. Dig., was passed, larceny was a misdemeanor, but the law was afterwards amended, making two grades; and the acts on this subject are to be construed together, as if passed at the same time. Suth. St. Const. sec. 142; 23 Am. & Eng. Enc. Law, p. 311; 4 Ark. 410; 45 id. 391; Bish. St. Cr. 113b.
3. Any writings used by the defendant for the purpose of effecting the fraud, or connected with it in any way, were admissible in evidence. 7 Am. & Eng. Enc. Law, 784, and authorities cited.
4. The testimony of Eagle and Chism was admissible to show how they were misled and induced to sign the order. 83 N.Y. 447; Underhill on Ev. p. 209; 7 A. & E. Enc. Law, 786, and authorities.
5. Appellant testified that he was not short in his coupon account, and introduced evidence to sustain him, and it was proper for the state to show that he was short, for two reasons: (1) To rebut appellant's evidence, and (2) to show that the coupons exchanged were the property of the state.
6. The testimony of Dewoody and Hudson was competent and admissible to show that the coupons belonged to the state, and were clipped from bonds not redeemed.
7. Bell's deposition not admissible. 47 Hun, 18; 80 Cal. 82; 36 P. 73; 40 N.W. 228; 33 N.W. 657; 1 Gr. Ev. secs. 163-4; 3 id. sec. 11; 5 Am. & Eng. Enc. Law, 621; 60 Ark. 503.
8. Remarks of counsel not reversible error. 24 S.W. 420; 20 id. 547; 23 id. 793; 36 P. 472; 25 S.W. 634; 34 Ark. 650. Appellant was not injured. 32 N.E. 431; 25 S.W. 634; 22 id. 157; Thomps. Trials, sec. 951.
9. The judge was not absent during the trial. No harm is shown, and there is no error. 18 S.E. 536; 81 Ga. 301.
10. The evidence is ample to sustain the verdict. 9 Col. 458; 70 Cal. 116. A false pretense may be made by act as well as word. Clark's Cr. Law, pp. 280 to 283; 22 S.W. 217; 98 N.C. 696; 2 Whart. Cr. Law, sec. 2113; 60 Ind. 447; 36 Mass. 179. The false pretenses need not be the sole cause for signing the order. 59 Ark. 375; 69 Ala. 242; 14 Wend. (N. Y.), 546, 555; 49 Mich. 12. The intent can be inferred from the acts of the accused. 66 Iowa 634; 6 Mich. 496. False pretenses to an agent are sufficient. 48 Mass. 463; 9 Col. 458. Where the signatures were obtained with intent to defraud, the offense was complete. 30 Ind. 350; 7 A. & E. Enc. Law, 742. The proving of one false pretense is enough. 35 Ark. 396.
The record discloses that at the term, 1893, of the Pulaski circuit court, W. E. Woodruff was indicted for the crime of false pretenses, said indictment containing two counts. A demurrer was interposed by the defendant on the ground that more than one offense was charged in the indictment, and, the state electing to stand on the first count in the indictment, the demurrer was overruled. The defendant entered a plea of not guilty, and filed a motion for a change of venue, and the case was sent to Perry county. Here the defendant entered a demurrer in short on the record, which was overruled. The case was tried, the jury returning a verdict of guilty, and assessing defendant's punishment at imprisonment for one year in the state penitentiary. A motion was filed in arrest of judgment, which was overruled, and defendant was sentenced in accordance with the verdict. He filed a motion for new trial, which was overruled, took his bill of exceptions, and prayed an appeal to this court, which was granted by the chief justice. All of the instructions to the jury asked by the defendant were refused, and the only instructions given were given of the court's own motion.
The appellant was indicted under section 1573, Sandels & Hill's Digest, which is as follows: "Every person who, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain a signature of any person to any written instrument, or obtain from any person any money, personal property, right in action, or other valuable thing or effects whatever, upon conviction thereof shall be deemed guilty of larceny, and punished accordingly.
The indictment charges: "The said William E. Woodruff, in the county and state aforesaid, on the 6th day of January 1891, being then and there the duly qualified and acting treasurer of the state of Arkansas, unlawfully and feloniously intending and devising to cheat and defraud the state of Arkansas, and James P. Eagle, and W. S. Dunlop, and Ben. B. Chism, who, together with the said William E. Woodruff, constituted the state debt board of Arkansas, falsely, fraudulently and designedly did pretend and represent to the said James P. Eagle, W. S. Dunlop and Ben B. Chism, members of the state debt board of...
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