Connor v. State

29 Fla. 455

• Court: Supreme Court of Florida
• Decided: January 15, 1892
• Status: Published

Opinion

Raney, C. J.:

The information is for obtaining property under false pretenses. There was a motion made in the trial court to quash the information, but the motion was overruled, and error has been assigned on this action. The first ground of the motion to be noticed is the one asserting that the information does not show jurisdiction of the court to try the cause. The principle of law relied upon in support of this contention is, that the receipt of money or other property obtained under false pretenses is the consummation of the offense, and the place of its receipt by the offender is the locality of jurisdiction. The receipt or ob baining of the property is the consummation of the offense, and, in the absence of a valid qualifying statute, the place of its receipt is the sole locality of jurisdiction. If the false pretenses are made in one jurisdiction, but the property is obtained in another, the prosecution must, in the absence of such a statute, be instituted in the latter jurisdiction. 7 Am. & Eng. Enc. of Law, 758, 762. In State vs. House, 55 Iowa, 466, where the property alleged to have been fraudulently obtained consisted of promissory notes and a mortgage securing the notes, the false pretenses were made and an agreement of settlement providing for the execution and delivery of the notes and mortgage, was executed in Wright county, and afterwards the notes and mortgage were made and delivered to the defendant in Polk county, where he was indicted, tried and convicted; and it was held that the false pretenses made in Wright county were not a crime, that an indictment would not lie there because the notes were not obtained there, and that as the crime was consummated in Polk county, by the delivery of the papers in that county, the indictmeut was properly found there, no matter where the false representations which induced their' delivery were made. In Skiff vs. People, 2 Parker’s Crim. Rep., 139, the county of the delivery of the property was held to be the proper county for the trial of the offense, though the note for the property was not made and delivered until subsequently, and in another county. Norris vs. State, 25 Ohio St., 217, decides that where one, by false pretenses contained in a letter sent by mail, procures the owner of goods to deliver them to a designated common carrier in one county, consigned to the writer in another county, the offen.se of obtaining goods by false pretenses is complete in the former county, and the offense must be prosecuted therein, the delivery of the goods to the common carrier being a delivery to the defendant’s agent, and hence in law a delivery to the defendant. In People vs. Adams, 3 Denio, 190, Adams and another were indicted in the city of New York for obtaining money from a firm of commission merchants in that city by exhibiting to them fictitious receipts signed by the other defendant in Ohio, falsely acknowledging the delivery to such other defendants, of a quantity of produce for the use of and subject to the order of the firm, and Adams pleaded that he was a natural born citizen of Ohio, and had always resided there, and had never been in the State of New York ; that the receipts were drawn and signed in Ohio, and that the offense was committed by the receipts being presented in New York to the firm by innocent agents there employed by the defendant in Ohio ; and the plea was adjudged to be bad, and the indictment to have been properly found in New York; and, in entire consistency with this decision, it was held in Stewart vs. Jessup, 51 Ind., 413, that a person is not liable to conviction and punishment in Indiana for obtaining property under false pretences, where the property has been obtained outside of that State, although the false pretences may have been made within it. See also In re Carr, 28 Kansas, 1; State vs. Round, 82 Mo., 679 ; State vs. Schaeffer, 89 Mo., 271; Commonwealth vs. Taylor, 105 Mass., 172 ; Commonwealth vs. Wood, 142 Mass., 459 ; Commonwealth vs. Van Tuyl, 1 Met. (Ky.), 1, s. c.; 71 Am. Dec., 455.

We will defer any consideration of statutory provision, that in all cases where an indictable offense shall be perpetrated in this State, and the same shall commence in any one county and terminate in another, the person offending shall be liable to indictment in either county (sec. 4, p. 446 McClellan’s Digest), and will test the information, upon the point of venue, by the rules of law laid down above.

The allegations of the first count as to obtaining the money, are, substituting figures for words, as follows : £ ‘And the said Connor, Chambliss and Vogt, by means of the said false pretenses, obtained from the said bank, and the said Rollins, Morgan and Greeley, as its managing agents and directors, certain moneys, to-wit: $3,200, of the value of $3,200, the property of said bank. And the said bank, and the said Rollins, Morgan and Greeley, as its directors and managing agents, then and there, by reason of the said false pretenses of the said defendants, and fully relying upon and believing in the truth thereof, were then and there induced to part with their ownership of and in the said $3,200 to the said Connor, Chambliss and Vogt, and did then and there part with their ownership in said $3,200 to said defendants.” . It is apparent that there is nothing said in the first of the above quoted sentences as to place, and hence no express statement as to where the defendants obtained the money. Assuming, as we will, for the purpose of the point under discussion, that the venue of the pretenses, as previously laid in the count, is in Marion county, still such distinctive allegation of venue cannot be invoked to show that the defendants did obtain the money in the same locality or jurisdiction, in the absence of apt words connecting the obtaining of the money with it. The first sentence, then, fails altogether to show where the money was obtained, or where, in the light of the above authorities, the offense was consummated, or is indictable ;. and consequently the count must be held to be insufficient, unless we can find from the succeeding or second sentence of the quoted words, that the money was obtained by the defendants in Marion county. We will admit it was the intention of the pleader that the word “there,” as used in the second sentence, should refer to the county of Marion in this State, when mentioned in the preceding parts of the information in designating the venue of the pretenses ; still this sentence, if it is not in substance and effect an allegation that the defendants obtained the money, will not save the count-under consideration. Giving the word “there” the effect and meaning of the words “in the county of Marion, in the State of Florida,” has the sentence the meaning and effect suggested ? We do not think that -an allegation that the person defrauded, or owner of the property, or his agent, was by reason of and in reliance upon false pretenses of a defendant, induced to part with and did part with their ownership of and in certain moneys, or other property to the defendants,. is the equivalent of an allegation that the defendants ■obtained the money by or through such pretenses or at all. This is not a prosecution for obtaining under false pretenses a signature to any written instrument, the false making whereof would be punished as forgery ; but it is for obtaining or getting the possession of the money itself. The ownership of the bank in the money -could have passed to the defendants without the defendants obtaining the money or the bank having-parted with the money itself, or having delivered it to the defendants, or to anyone. To “obtain,” as defined by Webster, means “to get hold of -by effort; to gain possession of; to acquire.” The two former definitions give more accurately than the third the meaning of the word as used in the statute. In State vs. Lewis, 26 Kansas, 123, the information charged that upon certain false pretenses of Lewis, one Burton “paid” to him the stated sum of $330, the money, property and effects of certain parties, but it was not alleged that Lewis obtained any money or any other property of any one ; and the question was whether the word paid was the equivalent of the word obtained. “ The crime defined by the statute,” says the opinion, ‘ ‘ is not that of making a false pretense, but the provision is directed against one who obtains something, or who, in other words, gets possession of something" purposely by effort, that is, by false pretenses. This being true, the information does not describe the offense either in the exact words of the statute, or by adoption of other words of substantially the same meaning with the words of the statute.” Kennedy vs. State, 34 Ohio St., 310 ; Commonwealth vs. Lannan, 1 Allan, 500; People vs. Phillips, 13 Hun., 395. The bank and its agents might ha i been induced by the defendants to part with&he ba fis ownership of and in the money to the defendants, and might have actually parted with the. bank’s ownership of and in the money to the defendants, and all this might have been in Marion county, and still the defendants may not have obtained possession of the money in that county, or even at all. This count does not show that the defendants obtained the money in Marion county, and hence, it (when judged in the light of the law as it is set forth above) is insufficient.

Proceeding how to consider the amenability of the second count to the objection that it does not show the jurisdiction of the court; or, in other words, does not show that the money was obtained or the offense committed in Marion county, it is proper to state that the averment of this count as to the defendants’ obtaining the money is: that the defendants, by means of the said false pretenses and said false and privy tokens, did then and there obtain from the said “ Land Mortgage Bank of Florida,” limited, of England, as aforesaid, and the said John F. Rollins, Morgan and Greeley, as its agents, certain property, to-wit: the sum of $2,993, and a check and order for the payment of money, of the value of $2,993, of the property, goods and effects of the said “Land Morgage Bank of Florida,” limited, of England, and the said Rollins, Morgan and Greeley, as its directors and managing agents as aforesaid, and the said bank and the said Rollins, Morgan and (qreeley, as its directors and managing agents aforel- fd, relying upon and fully believing in the truth of he said false pretenses, and said false and privy tokens and paper writings of the said defendants, were then and there induced, by reason of same, to part with the said money and the said check and order for money and the ownership therein of the said bank, and the said Rollins, Morgan and Greeley, directors and agents aforesaid, to said defendants.

Tt is a settled rule that if the indictment or information is uncertain, or repugnant to itself, as to the county, or other jurisdictional locality, of the commission of the offense, or, in other words, as to the venue of the offense, it will be held insufficient. 2 Hale’s P. C., 180 ; 1 Bishop’s Crim. Pro. (3d Ed.), sec. 379 ; 1 Chitty’s Crim. Law, 160. In Cain vs. State, 18 Texas, 391, the indictment, after “ State of Texas, County of Payette,”,and the usual commencement, charged that James Cain, late of Travis county aforesaid, yeoman, with force and arms in the county aforesaid, on, etc., did then and there feloniously steal, take and carry away, etc., it was held that there was manifest repugnancy as to the place or county where the offense was committed, and that it was good ground in arrest of judgment; and in Bell vs. Commonwealth, 8 Gratt., 600, Campbell county, the county in which the indictment was found, was mentioned in the caption, and in the body of the indictment it was charged “that Alonzo G. Bell, late of the county of Roanoke, in the State of Virginia, laborer, on the 10th day of March, A. I). 1850, with force and arms at the parish of Russell, in the county aforesaid,” one bay mare of the value, etc., and the indictment was held bad as not showing with sufficient certainty that the offense was committed in Campbell county. It is observed in State vs. McCracken, 20 Mo., 411, where two different counties were named and the indictment was quashed, that when two different times and two different places are mentioned in an indictment, and a material fact is afterwards averred, it will not be sufficient to give venue to such fact by stating “then and there” only, for it will not do to say that, grammatically, “then and there ’ ’ refer to the last antecedent time and place. See also Regina vs. Rhodes, 2 Raymond, 886 ; King vs. Inhabitants of Moor Critchell, 2 East, 65; Rex vs. Kilderby, 1 Saunders, 308; Queen vs. Gunn, 11 Modern, 66.

In view of what appears in the second count in its averments of the pretences, and preceding what is quoted above, it is impossible to say that the word '‘there,” as used in the quotation, this count refers only to Marion county, or locates the obtaining the money and check in that county. Though at the outset of the count it is alleged that it was in such county the defendants designedly and fraudulently pretended, still such pretending or pretences are charged to have been made to the Land Mortgage Bank of Florida, Limited, of England, and though afterwards, but preceding the above quotation, it is charged that certain false and fraudulent papers were made in Marion county, yet in connection with these allegations the bank, the party alleged to have been defrauded, is again, and more than once, described as “ of England,” and in one place it, in designating a draft or order as one of the false pretences used in obtaining the money or check, is designated as “of England, Jacksonville, Fla.” If it be that the absence of the word “city” before the word “ Jacksonville,” will prevent our taking judicial notice that the city of Jacksonville, in Duval county (a city, we may observe, which is incorporated by special statute, Chapter 3775, approved May 21, 1887, and Chapter 3776, approved June 2, 1887, and Chapter 3952, approved May 16, 1889, and Chapter 3953, approved May 31, 1889, and Chapter 4639, approved June 9, 1891), is the place meant by the words “Jacksonville, Florida,” still we think the word “there,” in the expression “then and there,” in the averment as to the obtaining the money or check is, in view of the preceding statement of the two jurisdictions, Marion county and England, entirely insufficient to show where the defendants obtained the money or check, and hence that the count is entirely uncertain as to the venue or jurisdiction of the obtaining of the ■things mentioned. It can not be held to refer any more to Marion county than to England.

Tested by the rule laid down in the first paragraph of this opinion, neither of the two counts is sufficient, and for the reasons indicated as to each count, yet without saying that the first is not subject also to the criticism made of the second, the information must be quashed, unless the statute first referred to above (sec. 4, p. 446, McClellan’s Digest) will save it. This statute cannot be invoked as aiding a case of this character, unless the information or indictment shows a consummation of the offense in Florida. There, has been no crime committed in Florida, unless the money or the check was obtained here; and this is not shown by either count. If the information duly represented that the things were obtained in Marion county, the information would be good upon its face as against the objections considered ; or if it represented that the pretenses were in Marion county, and the money and check were obtained in another county in the State, it would also be good under the above statute, unless there is something in the nature of cases of this kind, which has not been suggested. If there is nothing of such kind in the nature of the case, and an information should lay both the pretenses and the obtaining in the same county, when in fact they are in different counties, a question of variance might arise rendering it necessary to decide the question of the proper way of pleading offenses which the statute last cited was intended to apply to. The authorities cited cannot be held to be in harmony. Mr. Bishop approves a statement of them as they occurred; 2 Bishop’s Crim. Pro., sec. 381; 1 Chitty’s Cr. Law, 195 ; and certainly this is fairest to the accused. People vs. Dougherty, 7 Cal., 395.

The information should have been quashed ; and in view of the jurisdictional reasons leading to this conclusion, we cannot be expected to consider the numerous other objections made to the information.

The judgment will be reversed, and the cause remanded with directions to quash the information.