State v. Paul ( 1918 )

MeCOY, J.

Appellant was convicted of the'criminal offense of obtaining property under false pretenses,' 'and brings the cause before this court on appeal. After, .conviction the appellant made motion in arrest of1 judgment on the ground that the information does not describe or state a public offense. The information in substance alleged' that Joseph Paul, .the appellant, on the 25th day of October, 1917, in the county of Davison and state of South Dakota, did willfully, unlawfully, and feloniously, wiith intent to cheat and defraud one Miller, obtain from one Stahl, at the request of Miller, the said Stahl then-;and there being indebted to said Miller, by false and fraudulent- pretenses, a check drawn by said Staid upon the Mitchell National Bank of Mitchell, ,S. D., in favor of said Paul, for the sum of $12 .and of the value of $12, in which said bank at said' time the said' S'tahl had 'sufficient money to pay said check, and that the said sum of $12 lawful money of the United 'States, the property of said Miller of the’value of $12 wias thereafter and before the beginning of this proceeding paid by said bank upon said check to the said Paul, or his assigns, which check and property were obtained by false and fraudulent pretenses as 'follows: That at the said -time 'and' place the said Paul exhibited -and showed to the said' Miller :a watch which he offered to sell to said Miller, and then and there falsely and 'fraudulently stated and represented that said watch was an Elgin watch, .manufactured' by the -Elgin National Watch Companyi of Elgin, 111., ■and that the case of said watch was guaranteed by said Elgin National' Watch Company to be a gold-filled case, and to wear 25 years, -that said watch was worth $12, and that Said Paul had sold toi the jeweler Woe-lfel, of Mitchell, $1,200 worth of the same kind of watch, at 'that price, that the works in said' watch contained 21 jewels, all of -which statements were believed .and relied upon by said M-iller, who was deceived thereby, but which statements were false and1 untrue, -and known to be false and untrue by said Raul at said time, that said' watch was not an Elgin watch, and was not made by the Elgin Watch Company of Elgin, 111., or any other Elgin ¡Company of Elgin, 111., and1 was1 not of the value of $12, or other amount to exceed $3, that -said - -works of said watch did not contain 21 jewels, or any other amount of jewels, and said ■case was not gold-fill'ed, and that the said Paul never sold to said Wo elf el $1,200 worth of said watches -or any other amount; that said case- and works are not guaranteed by the Elgin- Watch Company;. and that, induced by Said false and fraudulent representations, the said Miller purchased said wat-ch of -said Paul, and- the same wa'S delivered to him by said1 Paul, and' he -paid- said P'aul therefor with- the check of said Stahl drawn on said bank, -and of the value of $12 as hereinabove set forth; all of which -false -and fraudulent acts of said Paul were -contrary to the form of the statute in such -case made and- provided.

[1] We are of the view that -this information, although not as artistically drawn as it might have been, and although it- contains much unnecessary evidentiary -matter, nevertheless does contain a substantial statement of all the elements necessary to -describe and-constitute the offense of obtaining -property by false and fraudulent pretenses under section 645, Penal Code. As applicable in this case, the substance of the provisions of this section of our -criminal law is that “every person who, with intent to -cheat or defraud another, des-igned-ly, * * * by * * * any * * * false p-retense, * * * obtains from any [other] person any money or -property,” is guilty of the offense of obtaining property by false pretenses. A careful analysis of the information, present will reveal that it -fully contains in substance all the elements of the offense as defined in said section 645.

[2] It is urged by appellant that the omission of the word “designedly” from this information isi -fatal. We are of the view however, that the allegations of the information that this -act was done willfully, unlawfully, and feloniously, with intent to -cheat and defraud, and with knowledge -on the part of said -appellant that such alleged false pretenses were in fact false, sufficiently satisfies the rule that the substance of a -criminal statute is -all that i-s necessary ¡to be stated in- -an- information o-r indictment in -describing the offense of which the -defendant is- -charged, in other -words, that it is not necessary to use the exact language of the statute in charging an offense. The case of State v. Halida, 28 W. Va. 499, is directly in point. In that case the court said:

“The pretense could not be knowingly false without at the same time being designedly false.”

[3] Appellant also contends that if the -information states any -offense at all it is that of larceny by fraud. The line of demarcation between larceny (by fraud and the obtaining of property by false pretenses "is very closely drawn, and, as some courts have said, is -more -or less technical. In some jurisdictions the obtaining of property by -false pretensles is denominated and prosecuted as larceny, while in the -criminal 1-a-w of this state we find two offenses separately defined. In ri Ruling Case Law, -p. 828, it is- said that:

“T-he -distinction between the crime of obtaining money or goods by false pretenses -and that of larceny rests in the intention with which the owner pails with .possession. Thus., if possesssion is -obtained 'by fraud', and the owner intends to part with his title as well as hi-s -possession, the offense is that of obtaining property -by false p-retenses, provided the means by which it is acquired are such as in law are false p-retenses. B-ut if -possession is fraudulently obtained1 .with present intent on the part of the -person obtaining it to convert the- property to his: own use, and the owner intends to part with his possession merely, and not with- his title, the offense is l-arceny.”

We are -of the view that this is the very distinction that exists between- the 'two -offenses under the criminal law of this1 state, and, applying this rule of distinction, the -allegations of the information -clearly constitute the offense of obtaining -property by false pretenses.

[4] It is- -also urged by appellant that it i-s uncertain whether the information -alleges that appellant obtained a .check for $12, or $12 in mione-y, ¡by means of said alleged1 false pretenses, and also that it does not appear that appellant ever actually received any money upon said' check. We are of the view 'that the allegations -of the information charge appellant with -having obtained -a ■check toy -means of false pretenses, and that -th-e -allegations in regard to the s-aict Stahl, the drawer of said check, -having «laid money in. said1 bank, and that said money was thereafter paid to appellant, or his assigns, by s-a-id bank, by virtue of said check, was evidentiary matter intended to show the validity of said check. Some courts' in 'such- cases hold to the rule that a check so alleged to have ¡been obtained must be shown to 'be a valid check, and' that there was money in the bank from which the same would -or -could have been .paid.

[5] Appellant also urges that if he had been prosecuted for larceny, the sentence or punishment would and could not have (been that which has 'been inflicted. We are of the view that the question of punishment, or .whether the same -was excessive or not, was not, and could not have been, a matter material or proper to be brought before the lower court, or this court, by means of a motion in arrest of judgment.

Finding no- error in the record, the judgment appealed from is affirmed.