Corscot v. State

190 N.W. 465, 178 Wis. 661, 1922 Wisc. LEXIS 76

Opinion

Doerfler, J.

Defendant’s counsel assign as error the refusal of the court, at the close of the state’s testimony, to grant defendant’s motion to discharge him, and the refusal of the court to grant defendant’s motion to set aside the verdict and for a new trial, because (1) the verdict is contrary to law; (2) because it is contrary to the evidence; and (3) because justice has not been done the defendant. The preceding assignments of error will be treated together.

To constitute the crime of obtaining property by false pretenses there must be a false representation or statement of a past or existing fact, made by accused or someone instigated by him, with knowledge of its falsity, with intent to deceive and defraud, and which is adapted to deceive the person to whom it is made; a reliance on such false representation or statement; an actual defrauding; and an obtaining of something of value by accused or someone in his behalf, without compensation to the person from whom it is obtained. 25 Corp. Jur. 589.

Mrs. Petherick and defendant were neighbors, living in adjoining flats, and during the years 1913 and 1914 a close friendship existed between them. The defendant was a man between thirty and thirty-five years of age, in the prime of life, having had years of experience in business affairs. Mrs. Petherick was upwards of/sixty years of age, in feeble health; had just lost her aged spouse, and she had no experience in business or business affairs or in making investments. The evidence also discloses that the major portion of the property left by Mr. Petherick, Mrs. Pethe-rick’s husband, consisted of $2,100 in municipal securities. By reason of the existing friendship and the confidence inspired thereby, Mrs. Petherick, immediately preceding the death of her husband, permitted the defendant to collect the proceeds of these municipal bonds, which had matured, and to invest them in other securities consisting of one bond of the Mineral Point Public Service Company, of the par value of $600, and two bonds of the Champion Lumber Company, respectively of the par value of $500 and $1,000. The services rendered by the defendant for Mrs. Petherick up to this point concededly were advantageous and beneficial to her. The services thus rendered naturally were' intended not only to create and maintain a closer bond of friendship between the parties, but also tended to inspire confidence.

On May 15, 1915, while the defendant was the owner of the stock evidenced by certificate No. 155 of the Madison Square Company, of the par value of $2,500, he endeavored to induce Mrs. Petherick to purchase some of this stock from him. Upon her refusal he procured the Service Company bond and the $500 Champion Lumber Company bond from Mrs. Petherick by giving her his note for the par value of these bonds, payable in five years, with interest at seven per cent., and handed her said certificate No. 155 as security for the note. At or about the time of this transaction the bonds of the Madison Square Company were worth about fifty cents on the dollar. While morally. it may be considered a questionable practice for the defendant, a man in the prime of life and of considerable business experience, to attempt to induce Mrs. Pether.ick to purchase the stock in the Madison Square Company or to procure from her bonds of the par value of $1,100 upon his promissory note,, with the stock in the Madison Square Company as security, nothing of a criminal nature, violative of the statutes on false pretenses., was involved therein.

At the time when the defendant made the appointment to meet Mrs. Petherick at the First National Bank, where she had deposited in a safety-deposit box her securities, Mrs. Petherick was called from the bedside of Mrs. Bashford, whom she was attending as nurse and where the performance of her duties required almost constant attendance. Upon the occasion of her meeting with the defendant pursuant to this appointment he represented to her that he was in great need of money, to which she replied that she had no money, and thereupon the defendant called to her attention the fact, well known to him, that she still had on hand a bond of the Champion Lumber Company of the par value of $1,000, and stated that he could cash this bond at the Boyd Company where it was purchased, and that he would give her more stock of the same company as security. To use the exact language, defendant said: “I will give you some more of the same stock as security.” The only stock he had ever given her as security consisted of Madison Square Company stock. By this statement he led Mrs. Petherick to believe that he would secure the loan by putting up as security some m,ore stock of the Madison Square Company. The bond of the Champion Lumber Company was thereupon handed to the defendant with the understanding that he would cash the same and then deliver to her stock in the Madison Square Company as security. The parties left the bank for the purpose of going to the Boyd Company to enable the cashing of the bond and the giving of the promised security to Mrs. Petherick by the defendant. When the defendant left Mrs. Petherick in front of the Park Hotel it was clearly contemplated that after cashing the bond he would return to hér, and in order to complete the transaction would hand h.er. the stock of the Madison Square Company as security. Until the delivery of the security the defendant held the bond or the cash proceeds thereof as the agent of Mrs. Petherick, and pursuant to the understanding between the parties the inference is irresistible that the title to either the bond or the cash would not pass until such security was furnished and delivered. Had the defendant, upon leaving Mrs. Petherick, converted the bond to his own use, or had he cashed the bond and appropriated the money without executing the proposed agreement, he would have been guilty of embezzlement.

Defendant’s counsel contend that the statement of the defendant made at the bank, “I will give you some more of the same stock as security,” was not a statement with reference to a past or a present fact, but applied strictly to an event which was to transpire in the future, and that for that reason false pretenses cannot be founded upon such statement. While tile statement made at the bank, standing alone, unquestionably refers to a future event, nevertheless, considered in connection with the nature of the entire transaction, and in view of his statement when he delivered the envelope, “The stock and the note are in there,” the same when properly interpreted can have but one meaning, and that is that when the security was actually delivered it meant “I am giving you some more of the same stock [meaning the Madison Square Company stock] as security.” With that interpretation the representation made was with reference to an existing fact, and, if false, constituted a proper foundation upon which could be based the criminal action of false pretenses.

At the time that this statement was made to Mrs. Petherick at the bank the note handed her had already been executed, and the note on its face recited that it was secured by the stock of the Starck Company instead of the Madison Square Company.

“ ‘Present time’ usually means a period of time of some appreciable duration, and generally of some considerable duration. . . . ‘Present time’ usually means some period of time within which certain transactions are to take place; and ‘future time’ usually means a period of time to come after such present time, and after the period of time when such transactions have actually taken place.”' State v. Rose, 30 Kan. 501, 1 Pac. 817, 820.

The entire transaction, from the manual delivery of the bond up to the time of the delivery of the security, constituted one transaction, and the representation made clearly referred to such transaction and was therefore a representation of an existing fact.

But counsel for defendant argue that nothing was said by his client with respect tO' the amount of stock he had agreed to deliver as security. The language used by him can only be interpreted to mean that he would give Mrs. Petherick security, which means reasonable security for the loan. At the time of this transaction the defendant had no other stock in the Madison Square Company at his disposal and he p'rocured no other stock of that company. He realized that the stock given as security could not be placed in the deposit box of the bank after banking hours, and in order to afford no time within which to give an opportunity to inspect the security he informed Mrs. Petherick. that they had just enough time to go to the bank and place the security in the safety-deposit box before the closing of the bank.

Was the representation made by the defendant false? After representing that he would give some of the same stock as security he inclosed in the envelope the worthless stock of the Starck Company. He did not apprise Mrs. Petherick that the stock put up as security was not the stock of the Madison Square Company, but by his conduct and his words led her to believe that it was such stock. Not only did he hand her worthless stock, but he permitted her, from the date of the transaction until January, 1916, to labor under the impression that she had as security Madison Square Company stock, and then when she discovered the falsity of the defendant’s representations, in order to lull her into security he falsely represented that the stock of the Starck Company was worth par.

But it is argued by defendant’s counsel that there was no evidence in the case to show that Mrs. Petherick relied upon these false representations. The evidence, however, is of sue)', a nature that it can reasonably be presumed that she parted with her Champion Lumber Company bond in reliance upon defendant’s false representations.

In Comm. v. Daniels, 2 Parsons’ Select Eq. Cas. 332, it is held:

“Where the false representations charged are clearly-proved, and the intention to cheat and defraud established upon trial of the defendant for obtaining goods under false pretenses, the reliance of the defrauded party upon such pretense in parting with his goods may be presumed.”

The essential facts constituting false pretenses have been adequately proven, namely: (1) that the false representations made were of an existing fact, made by the accused with knowledge of their falsity and with intent to defraud; (2) that such representations were adapted to deceive the person to whom they were made; (3) that the person defrauded relied upon such representations; and (4) that there was an actual defrauding and an obtaining of something of value by defendant without compensation tb the person from whom it was obtained.

Error is based upon a number of instructions of the court to the jury. We have carefully examined these instructions and are of the opinion that they are full and adequate and constitute a proper statement of the law on the sub ject. The instructions to which defendant’s counsel have excepted, and their requested instructions which were refused, are mainly based upon their contentions with, respect to the merits of the case and to the law, which have heretofore been ruled adversely to them.

It follows that the ¡judgment and sentence of the trial court must be affirmed.

By the Court. — Judgment and sentence of the superior court 'of Dane county is affirmed.