Charles Nelson v. United States

227 F.2d 21

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 4, 1955
• Docket: 12616
• Status: Published

Opinions

DANAHER, Circuit Judge.

This is an appeal from a conviction for obtaining goods by false pretenses in violation of D.C.Code § 22-1301 (1951).¹ The trial court entered judgment of acquittal on a second count charging grand larceny. Evidence was offered to show that appellant from time to time over a period of months, for purposes of resale, had purchased merchandise from Potomac Distributors of Washington, D. C., Inc. (hereinafter referred to as Potomac-Distributors). By September 18, 1952, his account was said to be in arrears-more than thirty days. Late that afternoon, appellant sought immediate possession of two television sets- and a washing machine, displayed his customers’" purchase contracts to support his statement that he had already sold such merchandise and had taken payment therefor, and told one Schneider, secretary-treasurer of Potomac Distributors, “E promised delivery tonight.” Appellant was told no further credit could be extended to him because of his overdue indebtedness in excess of $1800., whereupon appellant offered to give security for the desired items as well as for the delinquent account. He represented himself as the owner of a Packard car for which he had paid $4,260.50, but failed to disclose an outstanding prior indebtedness on the car of $3,028.08 secured by a chattel mortgage in favor of City Bank. Instead, he represented that he owed only one payment of some $55. not then due. Relying upon such representations, Potomac Distributors delivered to appellant two television sets each worth $136.² taking in return a demand note for the entire indebtedness, past and present, in the total, $2,047.37, secured by a chattel mortgage on the Packard and the television sets. Appellant promised to make a cash payment on the note within a few days for default of which the holder was entitled to demand full payment. When the promised payment was not forthcoming, Schneider, by telephone calls and a personal visit to appellant’s home, sought to locate appellant but learned be had left town.³ The Packard about that time was in a collision, incurring damage of about $1000., and was thereupon repossessed in behalf of the bank which held the prior lien for appellant’s car purchase indebtedness.

The foregoing summary of the evidence is sufficient for present purposes. Appellant has not denied the falsity of his representations nor that he received the goods he sought from Potomac Distributors. We have not had the benefit of appellant’s explanation, if any, as to why he did not intend Potomac Distributors to rely upon his misrepresentations. His counsel, however, argues (a) that there had been no misrepresentation of a material fact and no evidence that Potomac Distributors was defrauded; (b) that oral testimony was received which “varied the terms of the written instruments consisting of a note and a chattel mortgage” ; and (c) that the trial judge should have charged, to paraphrase his brief, that appellant could not be convicted unless the jury found he had misrepresented a material fact and unless the jury further found that Potomac Distributors had relied on appellant’s mis-r epres entations .⁴

The trial judge in his charge correctly imposed upon the government the burden of proof as to each element necessary to constitute the crime. He broke down the general language of the indictment and with reference to each item, to be proved beyond a reasonable doubt, he particularized in detail:

“First, that the defendant represented to Joseph H. Schneider, an officer of the Potomac Distributors of Washington, D. C. a body corporate, that his Packard automobile was clear except for the final payment of about $55;

“Second, that at the time such representation was made, it was false;

“Third, that the defendant knew such representation was false at the time he made it;

“Fourth, that Joseph H. Schneider relied on such representation, and in so relying upon it, delivered to the defendant two television sets ;

“Fifth, that in making such false representations, the defendant intended to defraud Joseph H. Schneider and the Potomac Distributors of Washington, D. C., Inc., a body corporate ;

“Sixth, that, relying on such false representation and delivering to the defendant the two television sets, Schneider and the corporation were duly defrauded;

“Seventh, that the transaction, in all its parts, including the making of the false representation by the defendant and the delivery of the two television sets by Schneider to the defendant was had in the District of Columbia on or about September 18, 1952.”

Before instructing the jury, in a bench conference the trial judge said “. . . I expect to state in rather definite form what the Government must prove . . .,” and he outlined the foregoing instructions, almost verbatim. Pursuant to colloquy, he further charged:

“In enumerating the elements of the case, you were told that one of the elements necessary to be proved by the Government, and found by the jury, is that in making the alleged false representation, the defendant intended to defraud and so you are told that intent is a condition of the mind which is not always susceptible of direct and positive proof. It may be inferred from the actions and the words at the time and preceding the time of the doing of the act and in the administration of justice, it may be necessary to seek the intention with which one acts in doing what he does by drawing reasonable inferences from the words and the actions of the person involved, in the light of all the evidence in the case.”

In our view, the charge was correct, was adequate for the guidance of the jury, and in substance, incorporated so much of the appellant's prayer as was justified in law. Certainly the court was not bound to adopt the appellant’s theory of the case. In Robinson v. United States, 1914, 42 App.D.C. 186, 192, this court said:

. “The elements of the offense are a false pretense or false representation by the defendant '. ■ knowledge by the defendant ás to the' falsity, reliance on the pretense or representation by the person defrauded, intent to defraud and an actual defrauding. It is for the jury to determine whether each of those elements has been established by the evidence, and the court is not au-thorized to invade the province of the jury by telling them that if certain facts, are proved the intent to-defraud is made out. [Citing cases.] But this does not mean that one may prevent a jury from imputing to him an intent to defraud, where the evidence showed that he has obtained something of value from another by means of false representations, knowingly made with intent to induce the action taken by the other, by introducing evidence tending to show that he believed the other was receiving something of substantial value. Such a rule would practically destroy the statute. Everyone is presumed to intend the natural and probable consequences of his acts, and, when misrepresentations are intentionally made to obtain something of value from another and those representations are acted upon by the other, it is for the jury to say whether the intent to defraud has been established. In other words, such evidence warrants the jury in inferring the existence of the intent.” (Emphasis supplied.) Cf. Graham v. United States, 1951, 88 U.S.App. D.C. 129, 131, 187 F.2d 87, certiorari denied, 1951, 341 U.S. 920, 71 S.Ct. 741, 95 L.Ed. 1353.

Appellant mistakenly relies upon People v. Pillsbury, 1943, 59 Cal.App.2d 107, 138 P.2d 320, where the prosecution-admitted that no case of false pretenses, was presented and the sole question involved larceny by fraud. There the court, pointed out “there is no evidence that, [the defendant] used that car for any purpose of his own, or did anything with, it inconsistent with his avowed purpose-of finding a buyer for it. . . . He-surrendered’the car to the owner when-the latter nee'ded it for his own’usé, án¿' the owner at that time agreed that defendant might sell the car.” Id., 138 P. 2d at page 322. The car was returned to the owner’s agent. Clearly, on its facts, as well as on the question presented, the case has no application here.

Appellant argues that Potomac Distributors could not have been defrauded for the car on September 18, 1952, “had an equity of between $900 and $1000 and roughly five times the value of the two television sets.” That fact is immaterial. Robinson v. United States, supra; 22 Am.Jur., False Pretenses, § 32; cf. United States v. Rowe, 2 Cir., 1932, 56 F.2d 747, 749, certiorari denied, 1932, 286 U.S. 554, 52 S.Ct. 579, 76 L.Ed. 1289; Kay v. United States, 1938, 303 U.S. 1, 5-6, 58 S.Ct. 468, 82 L.Ed. 607. He urges that the chattel mortgage to Potomac Distributors, as to the two television sets, must be construed as a conditional sales contract and since on that account appellant never received title to them, he could not have committed an offense within the language of the Code. Such circumlocution is irrelevant for the Code reads: “Whoever, by any false pretense, with intent to defraud, obtains from any person anything of value. . . . ” is guilty. (Emphasis supplied.) Besides, appellant need not have received absolute title. Whit-more v. State, 1941, 238 Wis. 79, 298 N. W. 194, 195, 134 A.L.R. 872. And see Partridge v. United States, 1913, 39 App. D.C. 571, 581. He argues that it was error to admit evidence to show that there was a valid prior outstanding chattel mortgage in favor of City Bank to secure an indebtedness of more than $3000 of the purchase price of the car, and that such evidence varies the terms of a written instrument. It amounts to an argument that the appellant by deceit and willful prevarication may obtain delivery of two television sets and convert them to his own use, but when his victim has relied upon his misrepresentations and has believed them, the truth may not be shown if the fraud has culminated in a written instrument at variance with the facts. Such a position is untenable.

This appellant has sold two television sets, and apparently had taken payment therefor although he had no television sets to deliver to his customers. He could not get the sets from Potomac Distributors without offering security for his past due account as well as for his present purchase. In order to get them he lied. He represented that his car acquired at a cost of more than $4000 required only one further payment of $55. He now complains because his victim believed him when he lied. He argues that the misrepresentations were not material although the victim testified, and the jury could properly find, that he would not have parted with his goods except in reliance upon appellant’s statements. “No one can be permitted to say, in respect to his own statements upon a material matter, that he did not expect to be believed; and if they are knowingly false, and willfully made, the fact that they are material is proof of an attempted fraud, because their materiality, in the eye of the law, consists in their tendency to influence the conduct of the party who has an interest in them and to whom they are addressed.” Claflin v. Commonwealth Insurance Co., 1884, 110 U.S. 81, 95, 3 S.Ct. 507, 515, 28 L.Ed. 76.

He argues that there was no proof of an intent upon his part to defraud his victim. “ ‘Wrongful acts knowingly or intentionally committed can neither be justified nor excused on the ground of innocent intent. The color of the act determines the complexion of the intent. The intent to injure or defraud is presumed when the unlawful act, which results in loss or injury, is proved to have been knowingly committed. It is a well-settled rule, which the law applies in both criminal and civil cases, that the intent is presumed and inferred from the result of the action.’ ” This quotation from a challenged charge was found by the Supreme Court to be “unexceptionable as matter of law” in Agnew v. United States, 1897, 165 U.S. 36, 53, 17 S.Ct. 235, 242, 41 L.Ed. 624.

We háve sufficiently dealt with the facts. “From these facts the requisite intent to defraud is presumed, and therefore, need not be proven in the absence of countervailing evidence. Materiality and reliance were conclusively established by evidence introduced at the trial, if indeed such proof were needed.” Pence v. United States, 1942, 316 U.S. 332, 339, 62 S.Ct. 1080, 1084, 86 L.Ed. 1510.

Such principles announced in the cases cited and repeatedly applied in our courts control our decision that there was here no error affecting substantial rights. Affirmed.

1 . In pertinent part the section provides:

“Whoever, by any false pretense, with intent to defraud, obtains from any person anything of value, or procures the execution and delivery of any instrument of writing or conveyance of real or personal property . . . shall, if the value of the property ... so obtained ... is $50 or upward, be imprisoned not less than one year nor more; than three years . .

2 . and a washing machine valued at $77.-50 which, for some reason not shown, was not otherwise included in the transaction, although delivered to appellant.

3 . The government’s brief tells us appellant waived extradition from Grand Rapids, Michigan, on March 10, 1954.

4 . Denying requests on these points after the charge, the trial judge said “ . . . I rather think, in substance I have covered them, so the renewed motions are denied . .