State v. Mullen

¶1It is charged that by certain false, and fraudulent representations and pretenses defendant secured from one A. G. Widmer a certain check for’the sum of $5,000 -in -payment of fifty shares of stock in a corporation *394known as the Southwest Smelting & Refining Company, a corporation organized under the laws of New Mexico. The alleged representations were, in effect, as charged: (1) That the stock was of the par value of $100 per share. (2) That the indebtedness of the corporation did not exceed the sum of $10,000. (3) That the shares of stock were “treasury stock’” owned by the company, the proceeds of which was to go into the treasury of the company to be used by it in paying its debts and improving its smelter and other properties, that each and all of these allegations were false and untrue, and that defendant knew them to be false when he made them, and that such representations were made to defraud. The indictment, as originally returned, charged: That defendant, pursuant thereto, did then and there “obtain from the said A. Gr. Widmer then and there money and property of the value of $5,000, in a hank check, drawn on the Farmers’ & Drovers’ State Bank, of Seymour, Iowa, and .signed, by the said A. Gr. Widmer, and then and there delivered to the defendants. A more particular description of said check is to this grand jury unknown. That said defendants did then and there present said check to the said Farmers’ & Drovers’ State Bank for payment, and received from said bank then and there currency, commonly called money, to the value then and there, of $5,000. A more particular description of said money is to this grand jury unknown. That said defendants .well knew that said stock was of no value, that said false representations were made then and there for the express purpose of obtaining' said money and property of said A. Gr. Widmer.”

¶2This allegation was afterward amended when objection was made to the check offered in evidence so as to read as follows: “That the consideration given by A. G-. Widmer, at Seymour, Iowa, on the 30th day of November, 1906, for the said fifty shares of stock was in the form of a check, in words and figures, as follows, to wit: ‘Sey*395mour, Iowa, November 30, 1906. The Numa Block Coal Company. No. 1,454. Pay to the order of A. G. Widmer, $5,000.00, five thousand and no/100 dollars. The Numa Block Coal Company, by A. G. Widmer, Treasurer. To Farmers’ & Drovers’ State Bank, Seymour, Iowa.’ And which said check was then and there indorsed on the back as follows: ‘A. G. Widmer.’ And which said check was then and there of the value of $5,000, and was then and there the property of the said A. G. Widmer, and which said check was then and there obtained of and from the said A. G. Widmer, as stated and set out in the indictment herein and amendment thereto, and that said A. G. Widmer was induced to deliver the said cheek to the said B. G. Mullen and B. M. Nichols by and on account of the false pretenses stated and set out in the indictment herein.”

¶3This amendment was filed over defendant’s objections, with the permission of the trial court, and the ruling is challenged. As to this more hereafter. After a long trial defendant was convicted and sentenced to the state penitentiary for the term of three years. Something like eleven assignments are relied upon, and many of these are subdivided into sections. The argument, however, is directed to five main propositions, and such of these as are deemed important will receive our attention.

¶4T- tense:PindictSeacy.saBi'I. The indictment was challenged by motion in arrest of judgment, and it is argued with great assurance that it charges no offense known to the law. If it does not do so, the county attorney who drew it did uot understand the use of language, for the indictment without the amendment covers nearly five closely printed pages of the abstract, each page containing the usual number of words. The exact claim, as we understand it, is that while enough words were used, they are disconnected and never arrive at any conclusion or charge. It must be conceded *396that the charge is not stated in simple and concise language, and that the reader has to carry in memory a good many statements before reaching any direct charge; but, taken as a whole, we find all the - elements necessary to constitute an offense included in the language used. It charges an intent to defraud, sufficiently sets out the pretenses, with sufficient accuracy states the ownership of the property obtained by defendant, adequately and with sufficient fullness states the real amount of the indebtedness of the corporation, states that the stock received by Widmer was worthless, alleges that the stock purchased was represented to be treasury stock, and alleges that the stock received by Widmer was not treasury stock. Some other points made against the indictment will be considered later, as they do not go to the indictment as a whole. Every essential allegation seems to have been made, and the court did not err in overruling the motion in arrest.

¶5ment'of indictment. II. When the cheek which Widmer gave for the stock was introduced in evidence, defendant objected, for the reason that it was not the property described in the indictment. The trial court intimated that it would sustain the-- objection because of . variance between the allegations and the proof. Thereupon the county attorney filed the amendment heretofore set out. The Thirty-Third General Assembly passed an act known as chapter 227, paragraph 7 of which, reads as follows: “The county attorney may, at any time before or during the trial of defendant upon indictment, amend the indictment so as to correct errors in the name of any person or in the description of any person or thing, or in the allegations concerning the ownership of property that may be described in the indictment; but such amendment shall not prejudice the substantial rights of the defendant, or charge him with a different crime or different degree of crime from that charged in the original *397indictment returned by the grand jury.” The amendment comes within the terms of this statute. •

¶63' ISStadT’ ,iyBut defendant contends that the statute is invalid and unconstitutional. Such statutes have uniformly been sustained in the face of like claims. See Commonwealth v. Holley, 3 Gray (Mass.) 458; Miller v. State, 68 Miss. 221 (8 South. 273); Peebles v. State, 55 Miss. 434; State v. Schricker, 29 Mo. 265; Rough v. Commonwealth, 78 Pa. 495; People v. Johnson, 104 N. Y. 213 (10 N. E. 690); State v. Johnson, 29 La. Ann. 717; State v. Carter (La.), 9 South. 128; State v. Donovan, 75 Vt. 308 (55 Atl. 611); People v. McCullough, 81 Mich. 25 (46 N. W. 515); People v. Price, 74 Mich. 37 (41 N. W. 853); State v. Sullivan, 35 La. Ann. 844; People v. Brown, 110 Mich. 168 (67 N. W. 1112); People v. Mott, 34 Mich. 80; Baker v. State, 88 Wis. 140 (59 N. W. 570); Secor v. State, 118 Wis. 621 (95 N. W. 942); State v. Bright, 105 La. 341 (29 South. 903); People v. Hildebrand, 71 Mich. 313 (38 N. W. 919); State v. Oliver, 20 Mont. 318 (50 Pac. 1018). Such statutes as the one now under consideration are becoming common to most jurisdictions, and the universal holding is that the Legislature may authorize, and permit the amendment of indictments at any time in mere matters of form when defendant will not be prejudiced thereby. Of course, the Legislature, so long as it retains the grand jury, can not authorize the amendment of indictments in matters of substance, for, as. amended, the indictment would not be the finding of the grand jury. The difficulty then is in determining whether the amendment is as to a matter of form or goes to the .substance of the charge. As a general rule, the holdings have been -that a mistake as to the name of a third person or as to the ownership of property may be amended. See cases hitherto cited and also the following: State v. Hanks, 39 La. Ann. 234 (1 South. 458); State v. Casavant, 64 *398Vt. 405 (23 Atl. 636); Baker v. State, 88 Wis. 140 (59 N. W. 570); Myers v. Com., 79 Pa. 308; Rosenberger v. Com., 118 Pa. 77 (11 Atl. 782).

¶74- niissión^f ÍSSUeS. III. One of the alleged false representations was that the stock was worth $100 per share, and- that Widmer relied upon the representation as to value, whereas, in truth, the stock was valueless. We have gone through the record with care, and fail ° ° to find any testimony showing or tending to show that defendant made any representation as to the value of the shares of stock, and there is also an entire absence of testimony showing that Widmer relied upon any such statements. The trial court erred in submitting this issue to the jury.

¶85 same- false [f0Pnrsefeev?-’ dence. IV. In order to prove the indebtedness of the corporation at the time when the representations are said to have been made, the state was permitted to introduce in evidence, over defendant’s objections, a eertified copy of a mortgage purporting to have been exeeute¿[ by the corporation to secure the payment of one hundred and fifty first-mortgage bonds of $1,000 each, covering the entire property of the company. This mortgage was made in October of the year 1905, and the representations as to indebtedness are said to have been made in November of the year 1906. This certified copy of the mortgage was no proof of a subsequent indebtedness to the amount thereof, and it should not have been admitted in evidence. State v. Clark, 141 Iowa, 297.

¶9Supplementary to this, and no doubt for the purpose of showing the value of the stock, the state was permitted to introduce in evidence, over defendant’s objections, the records and proceedings of a case in New Mexico of Col-lens Bond Investment Company against the corporation, showing a judgment by agreement against the company for the full amount claimed and a sale of the property of *399the corporation. The order confirming the sale was made in -January of the year 1909. To this action neither defendant nor the prosecuting witness was a party, and we think the trial court was in error in permitting these records to be introduced in evidence. They neither showed nor tended to show indebtedness at the time in question, nor did they throw any light upon the question of the value of the stock at the time the same was sold. The sale of the property happening more than two years after the statements are said to have been made as to indebtedness and value of the stock was not competent to establish either value or indebtedness. Presumptions do not ordinarily relate backward.' When they do, the period of time is short and the sequence apparent. The records should not have been received. Ellis v. State, 138 Wis. 513 (119 N. W. 1110, 20 L. R. A. (N. S.) 444, 131 Am. St. Rep. 1022); McNicol v. Collins, 30 Wash. 318 (70 Pac. 753); Gere v. Insurance Co., 67 Iowa, 272.

¶106. Same: instructions. The case was complicated, and the only issue, as we think, which the testimony tended to support, was defend-' ant’s misrepresentation as to the amount of the indebted-11688 °f the corporation at the time the stock wag gold to Widmer. Of the other representations there was little or no testimony, and yet a great amount of evidence was taken which it is claimed had some bearing upon the case. The defendant asked the court to give the following instruction: “The jury is instructed that, unless it should believe from the evidence beyond a reasonable doubt that the said A. Gr. Widmer was at the time he purchased and paid for the stock as charged in the indictment ignorant of the real condition of the Southwest Smelting & Refining Company with respect to its indebtedness, it can not find the' defendant guilty of the charge that he falsely represented the amount of said indebtedness; and if at and prior to said time the defendánt had given to sáid A. Gr. Widmer *400a statement showing the true amount of such indebtedness, or had read such a statement to him, or in his presence and hearing, then he was not so ignorant.” This, or something like it, should have been given, and, as the matter was not clearly brought to the attention of the jury, it is more than- likely that prejudice resulted to defendant from the omission. In a colloquy between the court and the jury after the case was submitted, it appeared that this was one of the pivotal points in the case, and no specific instruction was given with reference thereto unless it be found in what the court said orally to the jury.

¶11This, of course, did not cure the omission and was doubtless error in itself, because not given in writing.

¶12For the errors pointed out, the judgment must be, and it is, reversed.