State v. Germain , 54 Or. 395 ( 1909 )

Mr. Justice McBride

delivered the opinion of the court.

1. The first objection is to the sufficiency of the indictment. It is contended that the receipt shows on its face that the prosecutor, Clinesmith, did not part with the title to his money, but only with the possession of it, and that, as the crime of obtaining money under false pretenses is committed only when the injured party is induced to part with the title to his property, the indictment does not state facts sufficient to constitute a crime. The courts have held with practical unanimity that the crime for which the defendant was convicted is not committed unless the party defrauded is induced by the false pretense to part with the title to his property, and that the mere parting with the possession is not sufficient. State v. Anderson, 47 Iowa, 142; Grunson v. State, 89 Ind. 533 (46 Am. Rep. 178) ; Miller v. Commonwealth, 78 Ky. 15 (39 Am. Rep. 194) ; People v. Rae, 66 Cal. 423 (6 Pac. 1: 56 Am. Rep. 102). In these and in many other cases the courts hold that when by means of fraud, trick, or artifice, the possession of property is obtained with felonious intent, and the title still remains in the owner, the crime is larceny; but if the title, as well as the possession, is parted with, the offense is that of obtaining money under false pretenses. The distinction is a very fine and. technical one, and does not seem to be very substantial, but is very tenaciously adhered to by the courts.

2. It is contended in this case that, as the receipt shows on its face that the money was to be refunded if Cline-smith failed to get the situation applied for, and because the words “deposit made subject to securing position, $7.50, balance due 30 days from beginning work,” were written across the face of the instrument, Clinesmith retained the property in the money; the defendant being a mere bailee. We cannot agree with this view. The receipt contains a promise to refund the amount paid and the fare actually paid to and from the place where said applicant should be sent to work, in case applicant should produce evidence that he had applied in person to the place where he was directed and failed to get the situation. To “refund” means to repay, to pay back, and we are of the opinion that the title passed upon the payment of the money to defendant, and that there is nothing in the instrument itself that indicates that defendant was to return the identical money received. When defendant accepted the money, he accepted, not as a bailee, but as a payment, as the words in the receipt “we promise to refund the above amount paid,” clearly indicate. Rackliff v. Greenbush, 93 Me. 99 (44 Atl. 375).

3. It is also contended that neither the indictment nor the proof shows the existence of a false representation as to present existing fact, which is always a necessary ingredient of the crime of which defendant is charged. The copy of the receipt or contract set forth in the indictment contains this statement:

“Received from H. M. Clinesmith the sum of $7.50, for which we agree to furnish correct information by which the above named employee shall be enabled to secure a situation as lumberman with the S. B. Lumber Co. at city.”

The indictment alleges, and the proof shows, that when this receipt was given the defendant stated to Clinesmith that the Smith Brothers Lumber Company was a large firm doing business in the city, when in truth and in fact there was no such firm, partnership, business, or corporation, and that defendant knew this to be the case. Here was a representation as to an existing fact, namely, that there was such a firm as that indicated by defendant. The indictment is sufficient.

4. It was claimed on the argument that there was a variance between the indictment and the proof, as the evidence showed that Clinesmith gave defendant his check on a Portland bank, while the indictment alleges that the defendant received money. The evidence also shows that defendant cashed the check before he was arrested. The check was the mere vehicle by which defendant was enabled to obtain Clinesmith’s money, and there was no variance.

5. It was also claimed that there was error in permitting oral evidence of the conversation between defendant and Clinesmith at the time the money was paid to defendant; the defendant maintaining that no evidence could be given of the transaction except the réceipt itself. We do not so understand the law. In England, and in many of the states, neither the false pretense nor the evidence of it is required to be in writing; in fact, statutes requiring either of these requisites are the exception, rather than the rule. However, in this State, as a precaution against perjury, the legislature has required the evidence of such false pretense to be accompanied by a writing or some false token. Section 1812, B. & C. Comp., which defines the offense, does not require the false pretense to be in writing, so that, if this section stood alone, no written evidence of the pretense would be required; but section 1407, B. & C. Comp., has so modified the rules of evidence that evidence of a false pretense must be accompanied by a false token or writing. Said section reads as follows:

“Upon a trial for having, by any false pretense, obtained the signature of any person to any written instrument, or obtained from any person any valuable thing, no evidence can be admitted of a false pretense expressed orally and unaccompanied by a false token or writing, but such pretense or some note or memorandum thereof, must be in writing and either subscribed by or in the handwriting of the defendant.”

This is a matter of procedure and evidence, and not of pleading. In State v. Renick, 33 Or. 584 (56 Pac. 275: 44 L. R. A. 266: 72 Am. St. Rep. 758), the view above taken was enunciated by this court in the following language: “The statute has also made it an offense for any person to obtain, or attempt to obtain, with intent to defraud, any money or property whatever by any false pretense or by any privy or false token. (Citing Section 1812, B. & C. Comp.) The evidentiary matter necessary to support the charge must .consist of a false token or writing accompanying the pretense. (Citing Section 1407, B. & C. Comp.)” While the precise question involved in the contention at bar was not involved in that case, it is cited as indicating the view of the court that the pretense itself need not necessarily be in writing, but that some note or memorandum thereof in writing was necessarily a part of the evidence that must be introduced in order to sustain a conviction. The statute of Indiana on the subject is as follows: “Whoever with intent to defraud another designedly by color of any false token or writing obtains from any person anything of value,” etc., It will be seen that this statute differs from ours, in requiring the pretense to be in writing, and yet in construing this section the court says: “The appellant’s counsel says in argument: T claim that to make a case- under the present statute it must be by color of a false token or writing alone, unaided by any verbal false pretense or representation; that the false token or writing must be of such a character that a person of ordinary caution would give it credit without relying upon any verbal representation whatever.’ We do not think that the words ‘by color of any false token or writing,’ as used in the statute, should receive any such rigid or literal interpretation.” Wagoner v. State, 90 Ind. 504, 507.

6. We think that the law excluding oral evidence of a false pretense, unless accompanied by some note or memorandum thereof in writing, was passed out of abundant caution to preserve the liberty of the citizen, and to require corroboration of oral testimony by some memorandum in the handwriting of the person accused. In this respect we think the rule analogous to that prescribed in this State in regard to the testimony of an accomplice, and that it is not necessary that the memorandum should contain the whole pretense, but that it should accompany and corroborate the oral evidence of the pretense. On this theory the evidence of the conversation between defendant and Clinesmith was admissible. The evidence of Clinesmith, showing the intention of the parties in using the letters “S. B. Lumbr. Co.,” was not only admissible on the ground above stated, but also for the reason that, where abbreviations are used in a writing, oral evidence is admissible to show their meaning. 1 Am. & Eng. Enc. (2 ed.) p. 99; La Vie v. Tooze, 43 Or. 590 (74 Pac. 210).

7. Testimony concerning similar offenses was properly received as tending to show motive and fraudulent intent. State v. Briggs, 74 Kan. 377 (86 Pac. 447) ; State v. O’Donnell, 36 Or. 222 (61 Pac. 892). In the case of State v. Briggs, supra, will be found a copious citation of the autnorities sustaining the doctrine herein announced.

8. The defendant offered evidence to show that he had returned money in many cases where parties paying it had failed to get employment; but the evidence was rejected. We think the ruling of the court was proper. The mere fact that he had dealt with other persons without defrauding them was not evidence that he had dealt honestly with the prosecuting witness. The court ruled that he could go into and explain the transactions introduced in evidence by the State, and this was as far as he had any right to introduce testimony as to his dealings with other persosn.

We find no substantial error, and the judgment will be affirmed. Affirmed.