State v. Grady , 147 Miss. 446 ( 1927 )

^* Corpus Juris-Cyc. References: False Pretenses, 25CJ, p. 595, n. 33; p. 597, n. 56, 57; p. 626, n. 26; p. 628, n. 42; p. 629, n. 46; p. 653, n. 69; Indictment and Information, 31CJ, p. 690, n. 52. This is an appeal from a judgment sustaining a demurrer to an indictment for obtaining money under false pretense. The indictment alleges:

That the appellant "unlawfully, knowingly, designedly, and feloniously did falsely pretend to Gaither Bros., a partnership composed of E.B. Gaither, W. Gaither, and E. Gaither, and domiciled and doing a general mercantile business at Fulton, Itawamba county, Miss., that a certain bale of cotton which he, the said Mull Grady, afterwards sold to the said Gaither he borrowed the money, or the money that white cotton, when in truth and in fact the said bale of cotton was not good white cotton which he, the said Mull Grady, then and there well knew; by color and means of which said false pretense, he, the said Mull Grady, did then and there unlawfully, knowingly, designedly, and feloniously, obtain from the said Gaither Bros., a partnership as aforesaid, the sum of thirty-seven dollars good and lawful money of the United States, the property of the said Gaither Bros., with intent to cheat and defraud the said Gaither Bros."

The grounds of the demurrer here relied on are: (1) The indictment does not allege that Gaither Bros. relied upon the statement made by the said defendant, and that that was the moving cause of the parting with their money; (2) the indictment fails to state in what manner and for what purpose he received the thirty-seven dollars and fifty cents, which it is alleged that he obtained under false pretenses, it fails to allege whether he received the money before the sale or after the sale of said cotton, or whether he borrowed the money, or the money that he received was a payment for the cotton sold; (3) the indictment itself shows that the defendant was only giving his opinion as to the quality of the product sold, which is permissible under the law; and (4) the indictment does not give the Christian names of the partners composing the partnership of Gaither Bros.

The allegation that, "by color and means of which said false pretense, he, the said Mull Grady, did then and there unlawfully, knowingly, designedly, and feloniously, obtain from the said Gaither Bros," etc., sufficiently charges that Gaither Bros. relied upon the statement made by the said defendant in, and that that was the moving cause of, their parting with the money; and it was unnecessary for the indictment to allege "in what manner and for what purpose" the appellant received the money. The indictment in this respect follows a common-law form approved by Mr. Bishop in his directions and Forms (2 Ed.), section 422, and, by this court, in State v. Dodenhoff, 88 Miss. 277, 40 So. 641, and Odom v. State, 130 Miss. 643, 94 So. 233. State v.Freeman, 103 Miss. 764, 60 So. 774, is relied upon by the appellant, but, as was pointed out in the Odom case, that case did not overrule or depart from the Dodenhoff case, and the distinction between the two cases was there pointed out. The three cases can be reconciled on the theory that the circumstances, under which the false pretense was made in the Freeman case, required a more particular allegation that it was the moving cause for the parting with his money by the person defrauded. No such circumstances appear in the case at bar; it being on all fours with the other two cases.

It is true that: "The mere expression of an opinion which is understood to be only an opinion does not ordinarily render the person expressing it liable to a prosecution for obtaining property by false pretenses. Smith v. State, 55 Miss. 513: Frequently it is difficult to draw the line between an expression of opinion and a representation of fact, but, if one knows an opinion to be erroneous, the matter is as to him not an opinion but a subsisting fact, and, if he makes a statement contrary to what he knows to be the fact, it would seem that he should not be allowed to escape the consequences on the theory that his statement concerns a matter of opinion. So where statements as to value or quality are made by a person knowing them to be untrue, with an intent to deceive and mislead the one to whom they are made, and he is thus induced to forbear making inquiries which he otherwise would have made, the statements may amount to an affirmation of fact, rendering him liable therefor. In such a case, whether a representation is an expression of an opinion or an affirmation of a fact is a question for the jury. The rule that no one is liable for an expression of an opinion is applicable only when the opinion stands by itself as a distinct thing. If it is given in bad faith, with knowledge of its untruthfulness, to defraud others, the person making it is liable, especially when it is as to a fact affecting quality or value and is peculiarly within the knowledge of the person making it." 11 R.C.L. 832, 49 L.R.A. (N.S.) 574.

It is true that the indictment should charge both the Christian and surname of each of the partners composing the firm of Gaither Bros. (State v. Tatum, 96 Miss. 430, 50 So. 490), but that question cannot be raised here by demurrer. The indictment alleges that the partnership was "composed of E.B. Gaither, W. Gaither, and E. Gaither," and, where a letter precedes the surname, the court cannot judicially know whether it is an initial or a name. Moreover, "if one is commonly designated by initials for his Christian and middle name, so that they indicate plainly who is meant, it is the doctrine to which the tribunals having been tending and most of them have reached, that such initials are adequate in the indictment." 1 Bishop, Crim. Proc. (4 Ed.), section 685; 31 C.J. 690. If, on the trial, it appears that the letters preceding the names of the individual partners are initials, and not their full Christian names, the fact would still be of no great importance, for the reason that should it become necessary so to do, the allegations of the names may be amended so as to correspond with the facts. Section 1508, Code of 1906 (Hemingway's Code section 1266).

Reversed and remanded.