Meland v. State , 195 Ind. 630 ( 1925 )

Appellant, as defendant below, was charged by indictment with the offense of obtaining by false pretenses the signature to a promissory note of a woman for whom he was acting as attorney. A special judge having been appointed upon his application, the cause was submitted for trial and a finding was made and entered on the order book that he was guilty as charged, and for his offense should be imprisoned in the county jail for six months and fined $50. The special judge died without having signed the record of proceedings on the last day of the trial when the finding was made, and a month later another special judge was appointed and qualified, by whom judgment was rendered some months later in conformity with the finding. Thereupon, as stated by appellant in his brief, the new special judge, "on the 23d day of June, 1923, signed the record that had been made by his predecessor on the 17th day of April, 1923, without causing the record to show that said signing was nunc pro tunc." The action of the trial court in overruling a motion to quash the indictment, and the act of the second special judge in signing the record made by the first one, as stated, are insisted upon as causes for asking that the judgment be reversed.

The indictment charges, in substantial conformity with the provisions of the statute (§ 2588 Burns 1914, § 677, Acts 1905 p. 584), that on, etc., at, etc., the defendant, with intent by such false pretense to cheat and defraud Josephine E. Noonan, for the purpose of obtaining her signature to a certain promissory note for $300 that is set out at length, did then and there unlawfully, feloniously, falsely and designedly pretend to her that he had prayed and taken an appeal of a certain divorce suit on her behalf to the Supreme Court of Indiana, and "that $300 in cash was required to be placed in the hands of the clerk of the trial court by him as her attorney in perfecting her appeal," whereas in truth and in fact this was not required; that believing and relying on said false representations and being deceived thereby, having no means of learning the facts to the contrary, she did affix her signature to said note, by reason of such reliance and belief, and that defendant received and obtained possession thereof, and disposed of the same for value, before maturity, to an innocent holder thereof, to the injury of said Josephine E. Noonan, contrary, etc.

The only objection to the sufficiency of this indictment suggested by counsel for the appellant is the assertion that it charges "merely the representation of a thing that 1. may happen in the future and not the representation of an existing fact." But the allegation that he falsely represented to Mrs. Noonan "that $300, in cash, was required to be placed in the hands of the clerk of said Superior Court by him as her attorney for her in perfecting said appeal," and thereby obtained her signature to a note for that amount which he cashed, sufficiently charged the false representation of a present fact. No error was committed in overruling the motion to quash the affidavit.

As to the act of the second special judge in signing the record of the action taken by the predecessor on the last day that he held court before his death, the statute expressly 2. authorized this to be done. § 1451 Burns 1914, § 1331 R.S. 1881; Owen v. Harriott (1911), 47 Ind. App. 359, 94 N.E. 591. And in the absence of any affirmative showing as to the time when or the circumstances under which the record was signed, except that the signature of the second special judge appears at the conclusion of the entry, we must presume that it was signed in all respects in obedience to the law. Close v. Pittsburgh,etc., R. Co. (1898), 150 Ind. 560, 565, 50 N.E. 560; Tilden v.Louisville, etc., Co. (1901), 157 Ind. 532, 534, 62 N.E. 31;Aufderheide v. Rohr (1918), 187 Ind. 205, 210, 118 N.E. 824; Ewbank's Manual, §§ 122, 198; Elliott, Appellate Procedure §§ 709-712.

The judgment is affirmed.