State v. Larsen , 76 Idaho 528 ( 1955 )

KEETON, Justice.

Appellant was charged by an information filed by the prosecuting attorney of Caribou County of obtaining property, to-wit: a 1953 Ford sedan, the property' of R. J. Coppard, under false pretenses, in violation of Section 18-3101, I.C. He was found guilty by verdict of a jury ^nd s.en-t'ence imposed. A motion for a new trial was denied. Appeal was taken from the judgment-of conviction and the order denying the’ motion for a new trial.

Section 18-3101, I.C., - reads in part as follows:

“Every person who knowingly and • designedly'by any false or fraudulent . representation or pretense, defrauds 'any other person of * • * * property * * * is punishable in the same manner and to the same extent as for larceny of * * * the value of the property so obtained; * *.

The complaining witnesses, Mr. and Mrs. Coppard, own and operate a garage in Soda Springs, in Caribou County. February, 1954, appellant purchased a used Chevrolet automobile from them, representing himself to be a used car dealer. Said witnesses testified that March 4, 1954, appellant-by telephone made inquiry relative to a Ford Victoria car kept by the Coppards for sale, which had been previously examined by him; -that appellant offered to pay $2,000 for the car; that .on the afternoon of March 4, 1954, he came to-the business establishment of the complaining witnesses, gave a check payable to R. J. Coppard Garage for $2,000 drawn on the First National Bank of Murray, Utah. The car was delivered to him and he was given a bill of sale and certificate of title.

The check was deposited in a bank at Soda Springs and thereafter returned by the drawee bank marked “account closed”. It was proved that for two weeks prior to the time the check was drawn appellant had no account or deposit in said Murray bank! Thereafter, in April,- 1954, appellant was arrested in Utah and returned to Idaho. The car which had been driven approximately 5,000 miles subsequent to March 4th was recovered.

The bill of sale and certificate of title delivered to appellant are dated March 2, 1954, and the check, according to the records at the Soda Springs bank, was deposited March 3rd.

In assignments of error -appellant chai1 lenges the sufficiency of the evidence to susr tain the charge against him; alleges that he made no misrepresentations -of any past or present fact; challenges certain instructions hereinafter discussed, and the refusal of the court to give requested instructions; and, lastly, the admission of certain evidence.

It is the contention of appellant that the documentary and other evidence shows conclusively that the transaction occurred March 2nd or 3rd, and as the check for $2,000 delivered in payment of the automobile is dated March 4th, and the information alleges the offense to have occurred on March 4th, that no crime was committed, and therefore the court erred in refusing to advise the jury to acquit him.

The check for $2,000 given in payment for the automobile was a present transaction. Whether the transaction occurred March 3rd, as contended by appellant, or March 4th, as contended and testified to by complaining witnesses, we deem of no importance. The check was delivered as a cash payment for the automobile, and accepted as such by the complaining witnesses. Appellant did not pretend to be giving the witnesses a post dated check to be paid in the future. The sale was a present, completed transaction, and by the use of the bogus check, appellant obtained possession of the car, bill of sale and certificate of title.

If, as appellant contends, it was post dated one day, he did not direct attention to such fact nor ask the payee to hold the check, or otherwise in any manner indicate that the check was not a valid order for the immediate payment of money. It was given and accepted as a valid order for the present payment of $2,000. The appellant knew he had no funds or credit in the drawee bank at the time the check was delivered, nor thereafter.

While the date of the offense is alleged in the information to be March 4th, such time is not the essence of the crime, nor material to the issues. While time must be laid, the precise date need not be proved except in cases where it is the essence of the offense. State v. Rogers, 48 Idaho 567, 283 P. 44; 42 C.J.S., Indictments and Informations, § 124, page 1005, and § 125, page 1007.

The giving of a check at the time of a purchase by'a purchaser who knows that he has neither funds nor credit in. the drawee bank is a false representation of the existence of a present fact. Williams v. Territory, 13 Ariz. 27, 108 P. 243, 27 L.R. A.,N.S., 1032 ; 2 Bishop Crim.Law, Sec. 421; State v. Tanner, 22 N.M. 493, 164 P. 821, L.R.A.1917E, 849; State v. Cody,. 116 Or, 509, 241 P. 983; State v. McCormick, 57 Kan. 440, 46 P. 777; State v. Cooper, 169 Iowa 571, 151 N.W. 835; Lesser v. People, 73 N.Y. 78; Rex v. Sector, 14 Sask.L.R. 83, 35 Can.Crim.Cas. 15; State v. Meeks, 30 Ariz. 436, 247 P. 1099; Johnson v. People, 110 Colo. 283, 133 P.2d 789; People v. Etzler, 292 Mich. 489, 290 N.W. 879; People v. Lehrer, 182 Mise. 645, 45 N.Y.S.2d 170.

Appellant’s actions and conduct by written and spoken words, and by concealment, created a justifiable belief that a fact existed which'he knew to-be false and he thereby induced the complaining witness Coppard to sell the automobile. Under such circumstances he obtained the automobile by false pretenses. State v. Hammelsy, 52 Or. 156, 96 P. 865, 17 L.R.A.,N.S., 244; State v. Moore, 189 Wash. 680, 66 P.2d 836; 22 Am.Jur. 455, Secs. 18 and 19.

- “A false pretense may consist in ahy act, word, symbol, or token calculated and intended to deceive; it may be made expressly or by implication, and where it is expressed .in words, • the words may be oral', as well as' written, unless the statute requires-them to be in writing.” 35 'C.J.S., ' False Pretenses, § 17, page 654. See also, 35 ■ C.J.S. §§ 18 and 19, page 655.' -

Refusal of the court to give certain instructions is assigned as error. Requested instruction No. 4, which was refused, advised the jury that the crime of obtaining property under false pretenses must be ■ a false representation of an existing or past fact known by the appellant to be false, that a representation as to the existence of a future fact is not sufficient to convict him. The subject matter of the instruction was fully covered by instruction XVI.

Requested instruction No. 3 reads:

“The Court further instructs you that in this prosecution for obtaining property under false pretenses, if, in ■this case you find that the R. J. Cop-par.d: Garage took this check from the defendant on March 2, 1954, and that •the check -was at such time dated: March 4, 1954, then' this is evidence of • future pretense, not that of a past ' or present existing pretense made, at ■ • the time of the transaction. That ' when- such a check is given in such •circumstances, the payee voluntarily elects to rely, not upon the check, but upon the promise to pay in the future, and the transaction does not contain the essential element of intent to defraud. In this respect, mere silence and mere suppression of the truth, Upon which another may act, is not sufficient to constitute the crime of obtaining property by false pretenses.”

The instruction is erroneous and was- modified and the law on the subject fully covered by instructions XI, XIII, and XIV.

Requested instruction No. 5 enumerated the elements of the crime, namely, intent to defraud and actual fraud, false pretenses used for the purpose of perpetrating the fraud, and that such pretenses induced the owner to part with his property. The elements of the offense were fully covered in instruction XV.

Requested instruction No. 11 does not appear in the transcript. The legal proposition submitted is argued in the brief and is to the effect that if the offense did not occur on March 4th, the appellant should be acquitted. The instruction' is erroneous. An instruction given, XI, covering the subject mattér requested is more favorable to appellant than he had the right to require.

.An- examination of all the instructions given clearly indicates that the -jury was fully and fairly instructed on the law of the case.

Appellant challenges the admission of Exhibit “A”, a book entry in the records of the complaining witnesses. The exhibit was properly admitted.

A careful examination of the proceedings had and taken clearly indicates there was no legal defense. The motion for a new trial is based on matters above discussed and was properly denied. We find no reversible error. The judgment is affirmed.

TAYLOR, C. J., and ANDERSON, J., ■concur.