Strong v. State , 86 Ind. 208 ( 1882 )

Niblack, J.

This was a prosecution against George E. Strong for obtaining money under false pretences. R. S. 1881, section 2204.

The indictment was in four counts. Motions to quash each count were severally overruled. A jury found the defendant guilty as charged in the first count of the indictment; that he should be fined in the sum of $10, and be imprisoned in the State’s prispn for the term of four years. A motion for a new trial being first overruled, judgment was rendered upon the verdict.

The first count of the indictment charged that the defendants, on the 27th day of September, 1881, for the purpose of defrauding Martinsville Lodge No. 74, of Free and Accepted Masons, feloniously, falsely and designedly represented to Jefferson K. Scott, the Worshipful Master, and Enoch M. "Woody, the Treasurer, of said lodge, at the county of Morgan, in this State, that he, the defendant, was a member of Mercer Lodge No. 121, of the same order, located at Saint Marys, in the State of Ohio, and, as an evidence that he was a member of said last named lodge, then and there exhibited to tire said Scott and Woody a receipt, partly in print and partly in writing, as follows:

“Hall op Mercer Lodge No. 121, F. & A. M., j

St. Marys, O.,-, 1879. j

“ Received of Bro. George E. Strong for dues from-, to-, 1879, $7.50. C. H. Phelps,

“[L. S.] Secretary.”

That the defendant further represented to the said Scott and Woody that his father-in-law had just died at the city of Vincennes, in this State, and that his, the defendant’s, wife was then at Vincennes, awaiting his arrival at that place to assist her in taking the remains of his said father-in-law back to said town of St. Marys, in the State of Ohio, for interment; that he, the defendant, was then on his way from St. Marys to Vincennes to join his wife and to assist her as stated; that he was then without money or means to proceed further, and was greatly in need of the sum of $3.85, to enable him to reach Vincennes; that his wife had with her sufficient money to pay all necessary expenses, and that if said Martinsville Lodge would advance him that sum he would repay the same after reaching Vincennes; that the said Scott, believing said representations to be true and said receipt to be genuine, and relying upon the truth of such representations and the genuineness of such receipt, and being deceived thereby, and having the requisite authority to grant the. relief solicited by the defendant, by the use of funds belonging to said Martinsville Lodge, issued an order upon the said Woody, as the treasurer of said lodge, in the following form:

“Martinsville, Ind., Sept. 27th, 1881.

“E. M. Woody, Treas. Martinsville Lodge No. 74, F. & A. Masons: You will please pay to the bearer, a travelling brother in distress, $3.85. Jefp. K. Scott, W. M.”

And delivered the same to the defendant, for whose use and ' benefit it was intended; that the defendant thereupon presented said order to the said Woody, who accepted it and paid the amount named therein to the defendant for and on behalf of said Martinsville Lodge; that the defendant was not then a member of said Mercer Lodge No. 121, nor of any other Masonic lodge; that said paper purporting to be a receipt for dues to that lodge, and exhibited to the said Scott and Woody was a false, forged and fraudulent writing; that all the other representations made by the defendant for the purpose of obtaining said money were untrue, and that the defendant well knew that all the representations herein above set forth, as made to the said Scott and Woody, were untrue when he made them.

It is first contended on behalf of the appellant, that the court below erred in overruling his motion to quash this count of the indictment:

First Because it is not made sufficiently to appear that Scott and Woody relied on his statements as to the existing facts as reasons for letting him have the money he obtained from them, but that the fair inference is, that they relied on his promise to repay the money, which was not a fraudulent representation within the meaning of the statute.

Secondly. Because it was apparent from the facts averred that the money was given to the appellant as a charity merely, and hence in away that'made the representations upon which it was obtained immaterial.

In cases of this kind the false representations must be as-to some existing fact, and not as to some promise for the-future.- 2 Bishop Crim. Law, section 420; Keller v. State, 51 Ind. 111; Bonnell v. State, 64 Ind. 498; Perkins v. State, 67 Ind. 270 (33 Am. R. 89). The representations must also be relied on. 2 Bishop Crim. Law, supra, section 462.

We think the count under consideration made it sufficiently obvious that the most material and most important representations made by the appellant were as to facts assumed to be then existing, and that the appellant’s promise to repay the.money was only incidentally made to give a favorable coloring to his representations as to his alleged membership in Mercer Lodge, at St. Marys, in Ohio, and as to the genuineness of the receipt at the time exhibited by him; also, that these last named representations-were the ones mainly, if not entirely, relied on by Scott and Woody.

In the case of People v. Clough, 17 Wendell, 351, it was held, in an ably written opinion, that an 'indictment would not lie for obtaining money by false pretences where the money is parted with as a charitable donation, although the pretences moving to the gift were false and fraudulent; but the statute under which that case was decided was less comprehensive than is ours on the subject of false pretences, and the conclusion there reached, considered with reference to the statute of New York then in force, is not in accordance with the weight of authority, and does not, in our estimation, afford a safe precedent even under a statute similar to the one under which that decision was made. A contrary doctrine has been held in England and in Massachusetts. Bishop Crim. Law, supra, section 467; Commonwealth v. Whitcomb, 107 Mass. 486; Reg. v. Sender, 11 Cox C. C. 570; Reg. v. Jones, Temp. & M. 270.

The count before us is very long and very minute in the details of its averments; We have, consequently, only considered it in connection with the objections urged to it at the present hearing. Thus considered, the count appears to us to have been correctly held good upon the motion to quash it in the court below.

Questions are made upon the sufficiency of the other counts of the indictment, but, as the appellant was convicted only upon the first count, this appeal presents no question upon any of the other counts. Short v. State, 63 Ind. 376; Bonnell v. State, supra.

At the trial one Charlesf H. Phelps tvas introduced as a witness on the part of the State, and, over the objection of the appellant, testified substantially as follows: “ I live at St. Marys, Ohio, and belong to Mercer Lodge No. 121, of Free and Accepted Masons; I have seen the defendant before ; I was secretary of our lodge during the entire years of 1879 and 1880; I atn a physician, and had the blank receipt book and the seal of the lodge in my office. The defendant •came to me with a note from Mr. S. Carr, who was then our Worshipful Master; the note said for me to try the defendant in the secret work of Masonry,- and, if I found him all right, to pay him $5, as a travelling brother in distress; I did try him, and was satisfied he was a Mason, and a very bright one ; he told me his father-in-law had just died, and that he was ••on his way to the funeral; that he had run out of money, but that his wife had plenty of money to repay the amount and furnish all necessary expenses after he reached her, and that he would repay the amount I paid him, (which was) $5, as a travelling brother in distress; this was on June 21st, 1880, .at St. Marys, in the State of Ohio; he stayed in my office quite .a good while, and was there while I was out; I did not give him any blank receipt whatever, and did not sign my name to any paper, or give him or put the-seal of the lodge on any paper for him; he never paid the $5 back. * * * * * * He then said he was a member of Federal Lodge No. 1, Washington, D. C., and that he was in the Government employ as a postoffiee detective.”

The witness further testified that he had been for a long time a member of Mercer Lodge No. 121, above referred to by him, and that the appellant was not then and had never been a member of that lodge, and that he had never signed, nor authorized to be signed, his name to the receipt exhibited by the appellant to Scott and Woody; that a blank receipt was torn out of his receipt book some time between Juue 17th, 1880, and the 10th day of the succeeding August, and that while the appellant was alone in his, witness’s, office, he had ample opportunity to fill up and put the seal of Mercer Lodge upon one of the blank receipts in his, witness’s, receipt book.

It is in the next place contended, on behalf of the appellant, that the court erred in permitting Phelps to testify as above-to the fact that the appellant had likewise obtained money from him, and to the pretences upon, and the circumstances under, which the money was obtained, and that, for that reason, a new trial ought to have been granted.

We find it difficult to deduce from the text-writers and decided cases any well defined rule which will enable us to determine when proof of the perpetration of, or of the attempt to perpetrate, a similar offence is admissible as evidence of the intention with which the crime charged was committed.

The intention with which a particular act is done constitutes often the burden of the inquiry, and to prove the intent, it becomes necessary, in many instances, to extend the examination beyond the particular transaction concerning which the accused is upon his trial. For the purpose, therefore, of' proving the intent, not of proving the act itself, it is often-permissible to show other criminal transactions of the same-sort springing from the like mental condition. Bishop, in his work on Criminal Procedure, after giving various illustrations as to the proper application of this rule in criminal practice, sums up his conclusion in the following words:

“ It is, that, though the prisoner is not to be prejudiced in-the eyes of the jury by the needless admission of testimony-tending to prove another crime, yet, whenever the evidence* which tends to prove the other crime tends also to prove this-one, not merely by showing the prisoner to be a bad man, but-by showing the particular bad intent to have existed in his mind at the time when he did the act complained of, it is admissible ; and it is also admissible, if it really tends thus, asín the facts of most oases it does not, to prove the act itself.!’’ 1 Bishop Crim. Proced., section 1067.

Wharton, in his treatise on Criminal Evidence, referring to the same subject, says:

“ In connection with the last exception are to be noticed cases in which, a party’s intention being in issue, acts of a similar character are admissible. ********- “It is essential, however, that such evidence, if admitted, should be simply to prove intent, and not to prove character, or establish a substantive and independent crime. Thus, in 1861, in Massachusetts, a new trial was granted in a case of embezzlement, where evidence of distinct acts of fraud was admitted, but where it did not appear that such evidence was limited by the judge, in his instructions to the jury, to the question of intent.” Wharton Crim. Ev., section 46.

Roscoe’s Criminal Evidence states the rule to be that there are cases in which evidence is allowed to be given .of the prisoner’s conduct on other occasions, where it has no other connection with the charge under enquiry than that it tends to throw light on what were his motives and intention in doing-the act complained of. This can not be done merely with the view of inducing the jury to believe that because the prisoner has committed a crime on one occasion he is likely to ’ have committed a similar offence on another, but only by way of anticipation of an obvious defence, such as that the prisoner did the act charged against him without any guilty knowledge.

That author continuing, at page 92, says: “ There are three classes of offences in which, from the nature of the offence itself, the necessity for this species of evidence is so frequently necessary that they will be considered separately; these are conspiracy, uttering forged instruments and counterfeit coin, and receiving stolen goods. In these the act itself which is the subject of enquiry is almost always of an equivocal kind, and from which malus animus can not, as in crimes of violence, be presumed; and almost the only evidence which could be adduced to show the guilt of the prisoner w’ould be his conduct on other occasions.”

From these authorities, and-others of like import which might be cited if deemed necessary, it appears to us to be fairly inferable that where the intent with which an alleged offence was committed is equivocal, and such intent becomes an issue at the trial, proof of the commission of other similar offences, witliin certain reasonable limits, is admissible, as tending to throw light upon the intentions of the accused in doing the act complained of; but that where, from the nature of the offence under enquiry, proof of its commission as charged carries with it the evident implication of a criminal intent, evidence of the perpetration, or attempted perpetration, of other like offences will not be admitted.

In the ease at bar the representations charged to have been made by the appellant to Scott and Woody were concerning matters peculiarly within the appellant’s knowledge, and, when proven to have been made, and to have been falsely made, as the evidence fully tended to prove, the inevitable inference was that such representations were made with a criminal intent and for a fraudulent purpose. The intent, therefore, with which the appellant' made the representations charged against him, was not an issue at the trial in the sense in which Wharton, supra, speaks of the intent as sometimes becoming an issue. Consequently, the testimony of Phelps, tending to show that the appellant had at another place committed an offence similar to the one for which he was then on trial, was erroneously admitted, and a new trial ought, for that reason, to have been granted. Corbin v. Flack, 19 Ind. 459; Todd v. State, 31 Ind. 515; Fletcher v. State, 49 Ind. 124 (19 Am. R. 673).

The judgment is.reversed and the cause remanded for a new trial. The clerk will give the necessary notice for a return of the prisoner to the custody of the sheriff of Morgan county.