Martins v. State

Scott, Justice;. The plaintiff in error was charged by information, tried and convicted of the crime of obtaining money under false pretenses. Having made his motion for a new trial and the court having denied the same, he brings his case here on error. The plaintiff in error offered no evidence and on the completion of the State’s testimony he tpoved the court to direct the jury to acquit because of the insufficiency of the evidence to support a verdict of guilty, and one of the grounds embraced in the motion for a new trial is that the verdict of the jury is contrary to the evidence. Both motions were denied and exceptions reserved and the rulings are here assigned as error. Omitting the caption, signature and verification, the information is as follows: ' , — 326 — “Comes now N. R. Greenfield, County and Prosecuting Attorney of the County of Carbon, in the State of'Wyoming, and in the name and by the authority of the State of Wyoming, informs the court and gives the court to understand that Romon Martins, late of the county aforesaid, on the 30th day of January, A. D. 1908, at the County of Carbon and State of Wyoming, did then and there unlawfully, knowingly, designedly and falsely pretend to one Julius Mayer, with intent to cheat and defraud him, the said Julius Mayer, and one Maclovio Romero, and for the purpose of obtaining the property of said Julius Mayer, and said Maclovio Romero, to-wit: the sum of fifty dollars in lawful money, that he, the said Romon Martins, was then and there the rightful and lawful holder ■ and owner of a certain bank check of the value of fifty dollars, which said check was .of the tenor following: “Rawlins, Wyo., January 19, 1908. No. 88. The First National Bank of Rawlins. Pay to the order of J. A. Cordove $50.00, Fifty Dollars. Savory Creek Sheep Co. By M. E. Pickett.” and endorsed on the back thereof as follows: “J. A. Cordove.” “That the said Julius Mayer, relying upon said representations, and believing them to be true, and having no other means of ascertaining the contrary, did then and there, after the said Romon Martins endorsed said bank check with his own name, pay to the said Romon Martins, the sum of fifty dollars in lawful money for said check; that by means of the pretense aforesaid and with the intent and knowledge aforesaid the said Romon Martins did then and there obtain from the said Julius Mayer the property aforesaid, whereas in truth and in fact the said Romon Martins was not then and there the rightful or lawful owner or holder of said bank check, and had no interest in the same, all of which he then and there well knew, and well knew that said bank check was then and there the property of — 327 — said Maclovio Romero, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Wyoming.” There was no evidence offered on behalf of the defendant and at the close of the State's evidence the record recites as follows: “Counsel for defendant moves the court to direct the jury to find the defendant not guilty because of the insufficiency of the prosecution’s evidence in the following particulars: “That there was not that distinct and absolute representation of the ownership of the check either by words or conduct which is contemplated and required by law — the warranty of ownership, implied in the endorsement or the transfer of. the instrument, is not such representation for the reason that warranty is a promise for the future, whereas the law requires representation as to the past or existing facts. It is not shown that a reliance on such warranty induced Julius Mayer to part with his money, and even if such inference can be drawn, it does not appear that the alleged false pretense had the effect of cheating and defrauding Mr. Mayer, or that he was in fact defrauded, for the reason that he got exactly what he bargained for— a valid and genuine individual check payable to bearer; that the evidence does not consequently show the essential element of intent on the part of the defendant to cheat and defraud, and there is no evidence offered on behalf of the prosecution to prove the alleged false pretense. “Motion denied, to which ruling and order of the court, counsel for defendant excepts.” As already stated the overruling of this motion is assigned as error. The evidence discloses that the check was executed and delivered to J. A. Cordove in payment for wages, who endorsed it in blank, enclosed and sealed it in a letter with postage, prepaid and addressed to Ma-clovio Romero, . Rawlins, Wyoming, for the purpose of making a loan to Romero. This letter was deposited in the mail and in due course reached the postoffice at Rawlins. — 328 — The defendant having had previous knowledge of a request of Cordove for the loan called for his mail at the postoffice in Rawlins and in pursuance of the custom at that office all the Mexican mail was handed him to pick out the mail to which he was entitled or authorized to receive, and among these letters was the letter from Cordove to Romero which contained the check. The defendant took the letter, opened it, took the check therefrom and subsequently asked Mayer to cash it. Mayer examined the check and knowing the parties to the check and that it was good, then asked defendant where he got it, and defendant answered that he got it from the mail. Mayer knew the defendant was broke and had no money but said he would cash the check if the defendant would endorse it, such endorsement being solely as he stated to identify the person from whom it was received. Thereupon defendant endorsed the check and Mayer handed him fifty dollars of his employer’s money, that being the amount of the check. There is no evidence showing or tending to show that defendant had any authority to cash the check or to take the letter from the postoffice or to open the letter. It is contended by the defendant that there was no false representation, or at least not such as is contemplated by our statute. We think that the statement of how he obtained possession, accompanied by other acts of ownership, such as cashing it or asking it to be cashed, constituted, when taken together, a representation that he was the owner or entitled to cash the check as completely as though he had so stated orally. (19 Cyc. 402, and cases there cited.) Acts often speak as fully as words and to the same effect and as to whether the acts together with what was stated amounted to such a representation, or what the defendant intended by such acts and statements was a question for the jury. (Com. v. Stone, 4 Metc. (Mass.) 43; 19 Cyc. 446.) The acts, conduct and statement might reasonably have conveyed to the mind of Mayer that defendant was the owner of the check, or in other words it was the false pretense — 329 — of an existing fact and also of a past fact, viz: that he had come lawfully into its possession, and if the other material averments were also proved would be sufficient to warrant a verdict of guilty. It was not 'defendant’s own check but that of another to which he was not a party, and the false pretense of ownership for the purpose of obtaining money thereon constituted a false pretense within the meaning of the statute. (Casily v. State, 32 Ind. 62; Clark v. State, Id. 67; Com. v. Call, 21 Pick. 515; 19 Cyc. 401.) We perceive that there is but one other question raised by this motion which calls for our consideration, and that is as to whether the alleged false pretense had the effect of defrauding Mayer. This question may for convenience be considered in connection with another assignment of error, viz: that the verdict is contrary to the evidence, which was also one of the grounds embraced in the motion for a new trial. The allegation in the information is that defendant by means of false pretenses obtained the money from Mayer. The section of the statute under which this prosecution was instituted is as follows: “Sec. 5143- If any person or persons shall knowingly and designedly, by false pretense or pretenses, obtain from any other person or persons any chose in action, money, goods, wares, chattels, effects, or other valuable thing whatever, with intent to cheat or defraud any such person or persons of the same, every person' so offending shall be deemed a cheat, and upon conviction, where the value of such chose in action, money, goods, wares, chattels, effects or other valuable thing shall be twenty-five dollars or more, shall be imprisoned in the penitentiary for a period not more than ten years. In cases where the value of such chose in action, money, goods, wares, chattels, effects or other valuable thing is less than twenty-five dollars, the person so offending shall be punished by a fine not to exceed one hundred dollars, or imprisonment in the county jail not more than six months. In either case under this section he shall be sentenced to — 330 — restore the property so fraudulently obtained if it can be done.” There can.beno question upon the face of this statute that the property so obtained in order to constitute the offense must be obtained from the owner by means of false pretenses. There can be no party defrauded within the purview of this statute except the owner or one having a special ownership in and who is induced by false pretenses to part with his property. The fraud contemplated is the fraud which is perpetrated against the owner of the property. In this respect our statute is different from that of some states where intent alone is sufficient regardless of whether it be to defraud any specific person (19 Cyc. 415), or when the attempt to obtain goods by false pretenses is made a distinct felony. Having no statute making it a crime to attempt to obtain goods by false pretenses decisions under such a statute are inapplicable to the case before us. Under the statute the intent to defraud the person from whom the property is obtained by means of false pretenses is an' essential element of the crime. In the absence of such intent the crime is not complete, and even if such intent be present the crime is still not complete unless the party from whom the goods were so obtained was actually defrauded. (19 Cyc. 411, and cases there cited.) Naked possession by an agent of his principal’s property does not vest title of ownership in such agent. It is said, Sub-Division D, at page 408 of 19 Cyc.: “To constitute an obtaining of property defendant must in the first place acquire at least a voidable title to the property; that is the owner must intend to invest him with the title as distinguished from the mere custody or possession of the goods.” This text is fully supported by citations in the foot notes. Under a similar statute the supreme court of Wisconsin said: “The crime is defined in Sec. 4423, R. S., and consists in obtaining the money or property of another by false pretenses. -It must be obtained from the owner by false pretenses.” (Owens v. State, 83 Wis. 496; Sec. 472, — 331 — 2 Bishop’s New Criminal Law.) The crime is statutory, and the information should set forth all the requisites of the statute to constitute it. The ownership should by the averments of the information be correctly stated. (Bishop’s New Criminal Proc., Sec. 173; Wharton’s Criminal Law (8th Ed.), Secs. 1211, 1223, 932, 977; Wharton’s Criminal Ev., Sec. 94; 19 Cyc. 425, 426, 434, and cases cited; Leobold v. State, 33 Ind. 484; Halley v. State, 43 Id. 509; State v. Miller, 153 Id. 229; State v. Lathrop, 15 Vt. 279; Washington v. State, 41 Tex. 583.) In the case before us the information charges that the money was obtained from Julius Mayer and while the •ownership is not laid in any one else, nor is it directly laid in Mayer for that matter, yet the inference is that it was his money. Without discussing the sufficiency of the information in this respect, as that question has not been here presented, but conceding for the purpose of this case alone that it is sufficient, we pass to a consideration of the evidence to see if it be sufficient to support a verdict and whether or not the verdict is contrary to the evidence. From the evidence it appears that the money obtained from Mayer was not his money but was the money of one Robert Freedman, by whom Mayer was employed, and that Mayer had authority to receive and cash checks as agent for his employer. It is not alleged in the information how or in what capacity Mayer held the money, or the relation, if any, he sustained to Freedman, nor is it alleged that the money so obtained was Freedman’s money. (Owens v. State, supra; Jacobs v. State, 31 Neb. 33; People v. Krummer, 4 Park Cr. Rep. 217.) The defendant was not charged with obtaining Freedman’s money by false pretenses, but with obtaining' money from Mayer by false pretenses. In view of the uniform holdings .under a statute similar to ours that ownership is a material averment and must be proved as laid it is difficult to understand how A can be convicted upon an information which — 332 — charges the obtaining of money under false pretenses from B upon proof of ownership of the money in C.' The issue tendered, if any, was that Mayer was the owner of the money. The proof was that Freedman was the owner. It is not alleged in the information that Mayer was the ag-ent of Freedman and that pursuant to authority of his principal he acted upon the false representations and for that reason his agency or right to pay out money other than his own was not in issue. Proof of ownership in Freedman of the money obtained which was offered and submitted by the state was inconsistent upon the face of the information with ownership in Mayer as therein alleged, and in the absence of allegations showing ownership in Freedman and the ag-ency and authority of Mayer to cash the check with Freedman’s money must be considered and treated as proof of a separate and distinct crime. Such evidence disproved defendant’s guilt of the crime as charged. No false pretenses other than those to Mayer are alleged or proven. He was not defrauded for the money obtained did not belong to him, and upon the evidence in this case, if any one was defrauded it was Cordove or Romero, and no false representations were made to either of them. The crime, if any was proven, was not the crime charged. It is not necessary to discuss the question as to whether proof alone of possession by Mayer of the money which defendant obtained would be prima facie sufficient to support the verdict if ownership were directly laid in Mayer. Upon the evidence the latter had nothing more than the mere naked possession (Owens v. The State, supra) and it is sufficient to say that the proof is not limited to his possession alone, but upon the record it is undisputed that Freedman was the owner for whom Mayer was acting. There was more than a variance in the proof; there was a failure to prove the crime, if any, as charged, although proof was submitted tending to prove a separate and distinct crime and with the commission of which the defendant was not charged. The verdict is contraiy to the evidence. — 333 — The judgment -will be reversed- and the cause remanded for a new trial or such further proceedings as may be deemed proper not inconsistent with this opinion. Reversed. Potter, C. J., and Beard, J., concur.