State v. Devot

242 P. 395, 66 Utah 319, 43 A.L.R. 532, 1925 Utah LEXIS 27

• Court: Utah Supreme Court
• Decided: December 7, 1925
• Docket: No. 4325.
• Status: Published

Opinions

THURMAN, J.

The defendant was convicted by the verdict of a jury in the district court of Cache county of the crime of obtaining money by fraud and sentenced to serve an indeterminate term in the state prison.

The material evidence in the case was stipulated by the parties and set forth in the bill of exceptions. The foEow-ing facts are not in dispute: On the 28th day of July, 1925, one C. M. Hammond, at Logan, Cache county, Utah, received a telegram by Western Union Telegraph Company purporting to come from his son, Joseph Hammond, at Los Angeles, Cal., requesting the said C. M. Hammond to telegraph him at Los Angeles the sum of $142. Pursuant to said request the said C. M. Hammond immediately deposited the sum requested in the office of the said telegraph company at Logan, with directions that the said amount be AeHvered to Joseph Hammond in Los Angeles. Identification was expressly waived. It appears from the evidence of C. M. Hammond that after depositing the money and returning to his home he had some doubts as to the genuineness of the telegram he had received, but "decided to let it go.” A few days later another telegram purporting to be from Joseph Hammond at Los Angeles was received by C. M. Hammond at Logan making a further request for money. The matter was then referred to the sheriff of Cache county, resulting in the arrest of the defendant at Los Angeles. Defendant waived extradition and came to Utah in charge of the officers.

The defendant, testifying in his own behalf, admitted receiving the money in Los Angeles, but disclaimed sending the telegram to C. M. Hammond. His explanation of the transaction was to the effect that he. became acquainted with a person in Los Angeles representing himself to be Joseph Hammond; that said person informed him that money had been telegraphed him by his father and that the telegraph company had refused to deliver the money to him' because he was under the influence of liquor when he applied for it; that inasmuch as there had been a change of shift in the telegraph office the said person claiming to be Joseph Hammond requested the defendant to assume his name and make application for the money; that he did as requested and obtained a draft for the sum of $142; that he delivered the draft to the supposed Joseph Hammond, who was waiting down the street about a half block away; that the next day be saw the supposed Joseph Hammond and was informed by him that he had been unable to cash the draft, for the reason that the bank required identification by some one who had money in the bank; that he then requested defendant to go into the telegraph office where he had received the draft and get it cashed; that defendant did so and received the money, which he thereafter delivered to the supposed Joseph Hammond; that defendant received no consideration other than the use of a room which the supposed Joseph Hammond had paid for in advance and a loan from him of $4 or $5.

The defendant further testified that he believed that said person was in truth and in fact the son of C. M. Hammond, as he, represented himself to be, and was entitled to receive the money; that defendant did not know there was any fraud in connection with the draft or in receiving the money; that when he procured the draft to be cashed he indorsed it in the name of Joseph Hammond; that on the nest day the said supposed Joseph Hammond informed him that there was some more money for him at the telegraph office, and stated that since defendant was known there as Joseph Hammond “he better go and get this money also”; that defendant went to the office and asked if there was more money for Joseph Hammond, and was ¿hereupon arrested; that he then, with the officers, went to the place where he expected to find the supposed Joseph Hammond, but he had disappeared.

A Los Angeles detective testifying for the state, after identifying defendant as the person arrested in Los Angeles charged with the offense on trial, said that while in jail in Los Angeles the defendant admitted to him that he knew the man posing as Joseph Hammond was a fraud, and that it was a crooked game, but that he (defendant) “was short o'f money and decided he would go in with the other party with the understanding that the other" was to give him a portion of a split of the proceeds.”

It is stipulated in the bill of exceptions that the appeal is not made on the ground that the evidence is insufficient to support the verdict, but on the ground that the court bas no jurisdiction, of tbe defendant. Tbe bill also shows that tbe defendant duly excepted to the refusal of tbe court to give bis requested instructions Nos. 1 and 4. It was further stipulated that tbe real Joseph Hammond did not send tbe telegram in question or receive tbe money. Several exhibits are referred to by letter in the bill of exceptions, but they were not made part of tbe record on appeal, and are therefore not before tbe court. Defendant’s request No. 1, to tbe refusal of which defendant excepted, was a peremptory instruction to find tbe defendant not guilty. Request No. 4 reads as follows:

“You are instructed that if you believe from the evidence that the money, if any, was delivered to, and received by, the defendant in Los Angeles, Cal., then you are instructed that this court is without jurisdiction, and your verdict should be, for the defendant, not guilty.”

Tbe refusal to give tbe request just 'quoted and defendant’s exception thereto, as we interpret tbe stipulation, presents tbe only issue to be determined on this appeal. Assuming that tbe evidence is sufficient to support tbe verdict, if tbe court bad jurisdiction, we now proceed to a consideration of tbe question involved.

Appellant’s contention is that as tbe undisputed evidence shows that tbe defendant received tbe money at Los Angeles, and that that is where tbe money was obtained, therefore the offense of obtaining money by fraud, if any offense was committed, occurred outside tbe state of Utah; that defendant could not be charged with obtaining money in Logan unless the telegraph company was bis agent to receive tbe money. Appellant vigorously contends, as matter of law, that tbe telegraph company was not tbe agent of defendant. On tbe other hand, respondent insists that tbe telegraph company was tbe defendant’s, agent, and upon this single issue, in tbe last analysis, tbe lines of battle are drawn.

It will be remembered that C. M. Hammond, at Logan, Utah, telegraphed tbe money at that point to the supposed Joseph Hammond at Los Angeles, at bis request; that tbe defendant in this case admitted to tbe detective, at Los Angeles, that be knew tbe supposed Joseph Hammond was a fraud; that it was a crooked game; but that- being short of money be decided to go -in with the other person on the understanding that he was to have a split of the proceeds.

The jury was warranted in finding that defendant was in the “game” from the beginning. In fact, under all the circumstances, the jury was warranted in finding that the defendant, alone, either sent or authorized the sending of the telegram by which the fraud was consummated and the money obtained.

Appellant refers us to numerous cases holding that the offense of obtaining money by fraud, or under false pretenses, is triable only in the jurisdiction where the money was obtained, and quotes from 16 C. J. title “Criminal Law,” § 273, the following:

“The general rule is that the crime of obtaining money or property hy false pretenses is completed where the money or property is obtained, and that, if the pretenses are made within one jurisdiction and the property or money is obtained in another, the person making the representations must he indicted in the latter jurisdiction.”

See, also, the following cases relied on by appellant: Graham v. People, 181 Ill. 477, 55 N. E. 179, 47 L. R. A. 731, State v. House, 55 Iowa, 466, 8 N. W. 307; State v. McGinnis, 71 Iowa, 685, 33 N. W. 338; State v. Smith, 162 Iowa, 336, 144 N. W. 32, 49 L. R. A. (N. S.) 834; Stewart v. Jessup, 51 Ind. 413, 19 Am. Rep. 739; Com. v. Van Tuyl, 1 Metc. (Ky.) 1, 71 Am. Dec. 455; Connor v. State, 29 Fla. 455, 10 So. 891, 30 Am. St. Rep. 126; People v. Cummings, 123 Cal. 269, 55 P. 898; Bates v. State, 124 Wis. 612, 103 N. W. 251, 4 Ann. Cas. 365 and note; Burton v. U. S., 196 U. S. 283, 25 S. Ct. 243, 49 L. Ed. 482.

These cases do not go to the meat of the question presented here. The rule therein stated may well be conceded. The question here, however, is, “Where was the money obtained?” If the telegraph company was the agent of the defendant to receive the money then, under the undisputed evidence, the defendant received the money in Logan. This, in our opinion, is a sensible rule, well supported by both reason and authority.

Immediately following tbe passage quoted by appellant from C. J\, supra, tbe rule is stated as follows:

“Where, induced by false pretenses, one transmits by mail to defendant, money, drafts, or other writings, such mailing is a delivery to tbe postmaster as tbe agent of defendant, to be forwarded to him, and tbe offense is -committed where tbe letter is mailed, and is indictable at such place. Where tbe false pretenses are made in one jurisdiction, and in reliance on such pretenses goods are delivered to a carrier for shipment to defendant, the carrier acts as agent of defendant, so that tbe delivery to tbe carrier is a delivery to defendant; and accordingly the venue is properly laid in tbe county in which tbe goods are so delivered, unless there was a special agreement for delivery to the consignee in a county other than that from which the goods were shipped.”

In Brill, Cyc. Crim. L!aw, vol. 1, at page 543, tbe general rule relied on by appellant as quoted from C. J. is affirmed. Tbe author, however, at page 543, says:

“In several cases it has been held, to sustain jurisdiction, that delivery to a carrier or agent for defendant at bis request is a delivery to defendant and completes tbe offense at tbe point of such delivery, and it has been further held that in such a case tbe prosecution not only may but must be bad at the point of such delivery.”

Respondent also refers to' tbe following cases: State v. Gibson (Iowa) 106 N. W. 270; In re Stephenson, 67 Kan. 556, 73 P. 62; Com. v. Taylor, 105 Mass. 172; State v. Lichliter, 95 Mo. 402, 8 S. W. 720; Morris v. State (Ohio) 18 Am. Rep. 291; Com. v. Karpowski, 167 Pa. 225, 31 A. 572. These eases support tbe text quoted from C. J. and Brill, supra, upon which respondent relies. See, also, People v. Adams, 3 Denio (N. Y.) 190, 45 Am. Dec. 468; Com. v. Wood, 142 Mass. 459, 8 N. E. 432. Sbme English cases are to tbe same effect. Regina v. Jones, Eng. Law & Eq. 533, 4 Cox Crim. Cas. 198; Rex v. Brisac, 4 East, 164. In a note to State v. Smith (Iowa), reported in 49 L. R. A. (N. S.) at page 835, it is said:

“Tbe place where tbe property is delivered to a carrier for transport to the defendant is the place where the defendant should be indicted for obtaining such property under false pretenses. [Citing cases.] This is upon tbe theory that tbe carrier is tbe agent of tbe defendant to receive and transport, as tbe title has passed, subject only to tbe right of stoppage in transitu.”

In bis reply brief appellant .refers ns to many cases, but tbe question of agency, which in our opinion is a controlling question here, does not appear to be involved. The cases, however, are: People v. Ballas, 55 Cal. App. 748, 204 P. 401; People v. Steffner, 67 Cal. App. 1, 227 P. 690; State v. Roy, 155 La. 238, 99 So. 205; Dechard v. State, (Tex. Cr. App.) 57 S. W. 813; Pepper v. People, 75 Colo. 348, 225 P. 846; State v. Smith, 162 Iowa, 336, 144 N. W. 32, 49 L. R. A. (N. S.) 834.

As hereinbefore stated the exhibits were not made a part of the record. The telegram in question is not before the court, but as we interpret the bill of exceptions stipulated by the parties the telegram specifically authorized the sending of the money by telegraph and expressly adopted that means of perpetrating the fraud. C. M. Hammond testified that on July 28th he received a telegram which he believed to be genuine and to be from his son, Joseph Hammond, and that in pursuance of the request in the said telegram he deposited in the Logan office $142 and requested that the same be sent without identification. This is corroborated by the telegraph operator who wired the money. There is not a scintilla of evidence by way of contradiction. We are of the opinion that the telegraph company was thereby made the agent of defendant to receive the money for him in Logan, Utah, and that there is where the money was fraudulently obtained. We are heartily in accord with the authorities relied on by appellant that the offense is not complete until the money is obtained by the defendant; but there is nothing in the views herein expressed in any manner conflicting with the rule.

Near the close of their reply brief counsel for appellant, by way of emphasizing the awful consequences which would result if respondent’s contention were adopted, use the following language:

“Let us suppose the converse of the facts in the ease at bar. Suppose here in Utah, by means of false representation, the defendant induced a party in California to Wire him some money, and suppose that the defendant is apprehended in this state where he received the money; could he successfully maintain that he was not subject to the jurisdiction, of the courts in this state, that the only court which had jurisdiction to try him was the court in the county in California from where the wire was sent ordering the payment of the money to him here? Yet that is exactly what the courts in this state would have to hold if the state’s contention in the case at bar is sustained; or else this court would have to hold that the defendant may be twice put in jeopardy and twice prosecuted for the same offense.”

In the light of the láw as we have found it, and to facilitate the due and proper administration of justice, we do not hestitate to hold that, if some person in Utah should fraudulently obtain money from a citizen of California by means substantially similar to those employed in the instant ease, the ease should be tried in California where the injury was done and the consequences of the wrong inflicted.

The judgment of the trial court is affirmed.

■GIDEON, C. J., and FRICK and CHERRY, JJ., concur.