State v. Hale

291 P.2d 229, 129 Mont. 449, 1955 Mont. LEXIS 87

• Court: Montana Supreme Court
• Decided: November 19, 1955
• Docket: 9307
• Status: Published

Opinions

MR. JUSTICE DAVIS:

The appellant Hale was convicted in the district court for Missoula County under R.C.M. 1947, section 94-1805, of the crime commonly known as obtaining money or property by false pretenses. From the final judgment sentencing him to imprisonment for three years at hard labor and from the order denying him a new trial he appeals.

In the opinion written upon the former appeal in this case, State v. Hale, 126 Mont. 326, 249 Pac. (2d) 495, will be found a statement of the facts, not to be repeated here. We add only that upon the reversal and remand for a new trial the defendant asked, and by the trial court was granted, leave to withdraw his plea of “not guilty” that he might demur to the information. One ground of that demurrer was that the facts stated in the information do not constitute a public offense. See R.C.M. 1947, section 94-6703, subd. 4. After argument this demurrer was overruled. The defendant again pleaded “not guilty”; he was again tried and again convicted. Error is now specified by him that this ruling upon his demurrer was wrong.

Initially it is suggested that this contention as well as the demurrer interposed and overruled upon which that contention is made came too late. The argument is that because the accused did not demur to this information when arraigned before the first trial, he may not thus tardily raise the point upon the second trial that the information is bad, although granted by this court a new trial without restriction or limitation. We see no merit in this suggestion.

The rule is that when a first conviction is set aside, as is the case here, the defendant is not precluded upon a remand for a new trial “from attacking the indictment or information, and, on a second trial, he has the same right to challenge its sufficiency and regularity as he had before the first trial.” 42 C.J.S., Indictments and Informations, section 312, page 1344; 23 C.J.S., Criminal Law, section 1426, pages 1123, 1124; People v. Nitzberg, 289 N.Y. 523, 47 N.E. (2d) 37, 145 A.L.R. 482; State v. Butler, 72 Md. 98, 18 A. 1105. By R.C.M. 1947, section 94-7602, the “granting of a new trial places the parties in the same position as if no trial had been had.” Under a similar statute, N.Y. Code of Crim. Proc. section 544, the New York Court of Appeals has held precisely in point here that where an erroneous judgment of conviction is reversed on appeal -and there is a remand for a new trial the case stands as though the abortive judgment had never been entered, and accordingly that then the accused may challenge both the sufficiency and the regularity of the charge against him, even though he had not done so at all when the case was first tried. People v. Nitzberg, supra, 289 N.Y. at pages 530, 531, 47 N. E. (2d) 37. We agree with this statement of the law.

The first question then for decision in this court on this appeal is whether a public offense is charged in this information. We think not; and we reach this conclusion without finding it necessary to resolve the constitutional issue raised by the defendant’s counsel.

We summarize this information in these words, viz.,

(1) That the defendant “feloniously, lmowlingly and designedly, and with intent to defraud Missoula County” obtained from it $600’ with interest by presenting to the Missoula County Airport Board a “false and fraudulent claim” in the amount of $600, and in the name of Montana Engineering Company by one “H. B. Waite, Sec’y” for “designs, plans and specifications” covering a described project at the Missoula Airport.

(2) That “pursuant to approval by the Missoula County Airport Board a warrant was drawn upon the County Treasurer of Missoula County,” who “believing the representations upon the said warrant to be true, paid a Missoula County Warrant” made in favor of Montana Engineering Co., or order, in the amount of $600, with interest for “Designs, plans and specifications” etc.

(3) That the defendant deposited this warrant in a Missoula bank, and “received therefor credit for the sum of $600.79, lawful money”, etc.

Verbatim copies of the claim and warrant are set out in the information, and, as we construe its context, contain the various representations or pretenses by which it is said the county was defrauded.

But there is in this information no specification of any particular representation relied upon which was made by either the claim or warrant, nor of any particular in which any representation so made was false, unless it be that the adjectives “false” and “fraudulent”, which are employed to describe the claim, are to be taken as a sufficient averment of this essential fact. No such descriptive words are used to characterize the warrant. "We shall, nevertheless, assume for our purposes on this appeal that if this information sufficiently charges the falsity of any material representation made by the claim it is good.

We conclude that it does not, however, and that therefore the information is fatally defective.

More than once heretofore this court has said in civil cases that the use of words of malign import such as “false”, “fraudulent”, “fraud”, etc. is a waste of words, unless “accompanied by a statement of fact upon which the charges of wrongdoing rest”. Brandt v. McIntosh, 47 Mont. 70, 72, 130 Pac. 413; Mining Securities Co. v. Wall, 99 Mont. 596, 601, 45 Pac. (2d) 302; State ex rel. State Highway Commission v. District Court, 107 Mont. 126, 131, 132, 81 Pac. (2d) 347. In no case which we have found has this court held to the contrary. The authorities elsewhere agree. Owens v. Green, 400 Ill. 380, 392, 81 N.E. (2d) 149; In re Trigg, 46 N.M. 96, 105, 121 Pac. (2d) 152; Barni v. Kutner, 6 Terry 550, 45 Del. 550, 562, 76 A. (2d) 801; Betz v. Tower Savings Bank, 185 Wash. 314, 322, 55 Pac. (2d) 338; Giordano v. City of Ashbury Park, 3 Cir., 91 F. (2d) 455, 457; Venegoni v. Giudicy, Mo. App., St. Louis, 238 S.W. (2d) 17, 19; Buck v. Hurd, 281 App. Div. 115, 118 N.Y.S. (2d) 305, 307.

The rule in criminal prosecutions is no less rigorous. It has been directly applied to informations and indictments designed to charge the. crime of obtaining money -or property by false pretenses as well as similar crimes involving fraud and false tokens.

True, in Montana there is no case directly in point. But in this jurisdiction it has long been elementary that an essential element of the crime here is the falsity of the representations made. State v. Bratton, 56 Mont. 563, 566, 186 Pac. 327; State v. Brantingham, 66 Mont. 1, 16, 212 Pac. 499; State v. Woolsey, 80 Mont. 141, 155, 259 Pac. 826. And elsewhere it has been repeatedly held that the particulars in which the representations relied upon are false must appear from facts directly and positively set out, that to characterize a representation as “false” or “fraudulent” does not suffice to state the offense.

To this effect are the California decisions under sections of the California Penal Code, which at the time were substantially identical with the present Montana statutes. See People v. Carpenter, 6 Cal. App. 231, 91 Pac. 809, citing directly to the point where the charge involved the presentation of a false claim against a county, People v. Mahony, 145 Cal. 104, 106, 78 Pac. 354.

Elsewhere the decided eases accord. Harris v. State, 125 Ohio St. 257, 260, 181 N.E. 104; Du Brul v. State, 80 Ohio St. 52, 87 N.E. 837; State v. Van Gunten, 84 Ohio St. 177, 182, 183, 95 N.E. 662; Burke v. Knox, 59 Utah 596, 605, 206 Pac. 711; Wills v. State, 24 Tex. App. 400, 6 S.W. 316; Sasse v. State, 113 Tex. Crim. 513, 22 S.W. (2d) 941; State v. Palmer, 50 Kan. 318, 322, 323, 32 Pac. 29; Commonwealth v. Sanders, 98 Ky. 12, 32 S.W. 129; Commonwealth v. Wilson, 190 Ky. 813, 814, 815, 229 S.W. 60; Burnley v. Commonwealth, 274 Ky. 18, 117 S.W. (2d) 1008; State v. Bradley, 144 La. 459, 80 So. 657; Wimer v. State. 120 Tex. Cr. R. 576, 583 to 587, 48 S.W. (2d) 296; Moore v. State, 81 Tex. Cr. R. 606, 197 S.W. 728; People v. Winner, 80 Hun 130, 30 N.Y.S. 54; State v. Ruwwe, Mo., 242 S.W. 936; 35 C.J.S., False Pretenses, section 42c(l), page 690; 25 C.J., False Pretenses, section 60, pages 626, 627, 628.

Read in the light of these citations both in this court and from other jurisdictions the challenged information at bar charges only that Hale presented for allowance to the Missoula County Airport Board the described claim, which was approved, and upon which a warrant was drawn against the county, and that thereafter this warrant upon which the county treasurer relied was paid Hale in the sum of $600.79. This is not enough, The demurrer should have been sustained for failure to set out the facts upon which the charge of falsity rests.

In opposing this conclusion the attorney general argues that the information is in the language of the controlling statute, and is therefore good. We recognize the general' rule to be as stated. But to that rule there is an exception which is as well recognized as the rule itself, viz., that where the statute uses general or generic words in defining the offense the information or indictment bottomed upon that statute must specify the particular facts which constitute the offense. 42 C.J. S., Indictments and Informations, section 139g, pages 1042, 1043; 31 C.J., Indictments and Informations, section 264, pages 712, 713.

This exception has been recognized by this court. See State v. Wolf, 56 Mont. 493, 185 Pac. 556. This exception 'has been recognized in California as the rule where the charge is of fraud or false pretenses under statutes like ours. People v. Mahony, supra, 145 Cal. at page 106, et seq., 78 Pac. 354; People v. Butler, 35 Cal. App. 357, 361, 362, 169 Pac. 918; People v. Walther, 27 Cal. App. (2d) 583, 587, 81 Pac. (2d) 452; etc. This exception has met universal recognition in such cases in other courts as the decisions and authorities cited above indicate.

Moreover, we are persuaded further that our conclusion here is correct when we note the uniform practice heretofore in like cases brought to this court for review. We have examined the informations in State v. Hanks, 116 Mont. 399, 153 Pac. (2d) 220; State v. Foot, 100 Mont. 33, 48 Pac. (2d) 1113; State v. Woolsey, supra; State v. Brantingham, supra; and State v. Bratton, supra. In each the information expressly alleged the facts which made the stated pretense false. In none of these cases did the state rely upon the averment alone that the defendant made a “false” or “fraudulent” representation.

In the federal courts the practice is the same. Compare McCoy v. United States, 9 Cir., 169 F. (2d) 776, 778, 779.

It is a crime under Title 18, section 287, U.S. Code, for one to present a claim against the United States “knowing such claim to be false, fictitious, or fraudulent,” etc. The Federal Buies of Criminal Procedure (Rev. Ed. 1955), 18 U.S.C.A., where is found the ultimate in simplified criminal practice, prescribe this form for an indictment charging a violation of this statute:

‘ ‘ On or about the................day of............, 19. — , in the............, District of............, John Doe presented to the War Department of the United States for payment a claim against the Government of the United States for having delivered to the Government 100,000 lineal feet of No. 1 white pine lumber, and he then knew the claim to be fraudulent in that he had not delivered the lumber to the Government.” (Emphasis supplied). Fed. Rules Crim. Proc., Appendix of Forms, Form 10, 18 U.S.C.A.

It seems then that nothing less states an offense under section 94-1805, supra, of our Codes; and in the circumstances of this case we have found no authority which sustains an information or indictment which alleges less.

In this court State v. Phillips, 36 Mont. 112, 92 Pae. 299, 300, is the authority nearest in point with the state’s argument; and although this decision is neither cited nor noticed in the briefs or the oral argument at bar, we have given it consideration. There the pretense charged was that “the defendant was the brother of Charles Phillips”; the falsity of that pretense was averred by the recital: “ ‘Whereas said David Phillips [defendant] then knew said pretenses were false’ ”. This traverse was held sufficient, the information good. But there is no such traverse in the information now before us.

And, if there were, this citation would not help the state on this appeal; for it is plainly to be distinguished on its facts and by the authorities. It is one thing to allege a representation made that A is B’s brother; to deny by saying that representation is false. Here the denial that A is B’s brother is clear, certain and factual, and is so understood by anyone who reads the accusation. This may be a sufficient pleading.

It is another thing altogether, however, to allege that the defendant Hale presented a “false and fraudulent claim” without a specification of the facts, which show that at least some material representation made by that claim is not true. Without such a specification there is no traverse at all of any representation which the claim makes. The denial is wholly by way of conclusion, and is so understood by anyone who reads the charge. This is a fatally defective statement of the' offense. The authorities make this distinction.

In Wimer v. State, supra, the false representations alleged were rooted in eight promissory notes and a trust agreement by which these notes were assigned to create a fund for the payment and retirement of certain described investment certificates. In much greater detail indeed than in the information before us the charge in the Wimer Case attempted to traverse the truth of the representations made by these documents.

The Texas Court, however, said, 120 Tex. Cr. R., 584, 48 S.W. (2d) 299:

“It is the general rule that an averment that the pretenses were false is sufficient negation of the truth of the pretenses, unless the pretense is of such nature that the negation of the truth thereof requires allegations showing affirmatively in what the falsehood consisted in order that the accused may be apprised of the evidence he must meet. 25 Corpus Juris, page 627;, # ^ ^ J J

It was there held consistent with the authorities cited, 120 Tex. Cr. R. 586, 48 S.W. (2d) 301:

“The facts constituting the offense must be set forth so that the conclusions of law may be arrived at from the facts so stated..

Accordingly the indictment was quashed. We think the same rule is clearly to be applied to the information here against the defendant Hale.

We think the state’s position is unsound that in this case the prosecution may stand upon the language of the statute, which as reflected in this charge contains nothing but conclusions without any supporting facts to show the falsity of the specific pretenses relied upon for a conviction.

The state also argues that the real objection taken by Hale to the sufficiency of this information falls under subdivision 2 of section 94-6703, supra, to the point that the charge is uncertain, compare People v. McPheeley, 92 Cal. App. (2d) 589, 591, 592, 207 Pac. (2d) 651; People v. Burness, 53 Cal. App. (2d) 214, 217, 218, 127 Pac. (2d) 623; People v. McKim, 84 Cal. App. 663, 665, 258 Pac. 457, and does not therefore properly come under subdivision 4 that the facts stated do not constitute a public offense. This objection advanced at this time, if such were the case, must necessarily be considered waived under R.C.M. 1947, section 94-6711, because it is not specified as a ground of the demurrer before us.

But this argument also has no merit. The demurrer pointedly challenges the information for want of facts in the language of subdivision 4 of the statute; and we have so considered and ruled the question raised. Conversely there is no question here of a sufficient charge artlessly drawn; and we have neither considered nor answered any such question, which could properly be presented only under subdivision 2.

There is some suggestion in the argument of the defendant’s counsel that this information is designed to charge the offense denounced by R.C.M. 1947, section 94-3908, as well as the crime of obtaining money by false pretenses under section 94-1805, supra. If so, what we have said above is equally pertinent. The information as it is framed does not state an offense under either statute for the reasons we have given; the demurrer is good upon any construction of the charge.

But we do not agree with the further implication of counsel’s argument that an information which sufficiently states an offense under section 94-1805, supra, is necessarily duplicitous, because it must charge as well the crime of presenting a false claim against the county. An information which adequately avers the elements of the one offense does not charge the other as a separate crime. Upon this record we do not decide whether the latter may be included in the former. It would be idle to speculate upon the sweep of an accusation not before us. We hold only that an information may be drawn consistent with section 94-1805, which is not vulnerable to the objection that it is bad for duplicity.

For another reason wholly apart from the point made that the information does not state a public offense there must be a reversal in this case. The trial court erred in refusing to give in its entirety the defendant’s offered Instruction No. 26. This offer originally read: “You are instructed that if you believe from all of the evidence that the defendant performed the services for the county in supervising planning, preparing plans and specifications for the rebuilding of the airport runway and that the $600.00 claimed was compensation for such services actually rendered and that the defendant acted in good faith in performing such services and presenting said claim, then the state has failed to prove the criminal intent necessary to establish the offense charged, and you should find the defendant not guilty.” The court deleted the words “and you should find the defendant not guilty.”

As thus modified the instruction was then given. But as modified the instruction given was incomplete. The jury were not told what they must do with the case, should they find the facts as the instruction put them. In short by the deletion made the court effectively drew the teeth of this instruction and made it wholly pointless as a charge upon the sufficiency of the defense, if sustained.

Moreover, no other instruction given covered the point, or fairly put the defense before the jury. The accused was entitled to have the jury told that if the facts found were in accordance with this instruction he must be acquitted. Compare State v. Quinlan, 84 Mont. 364, 372, 275 Pac. 750; State v. McCracken, 93 Mont. 269, 275, 276, 18 Pac. (2d) 302; Little v. United States, 10 Cir., 73 F. (2d) 861, 867.

Since the case must then be remanded for another trial, other questions presented by the record must also be reviewed.

In the opinion in State v. Hale, 126 Mont. 326, 249 Pac. (2d) 495, written on the first appeal and again in the dissenting opinion of the Chief Justice on this appeal it is said that R.C.M. 1947, section 25-201, prohibits the county surveyor from obtaining anything as compensation for official services rendered other than his salary. We think this statute has no such effect. We think that this construction reads something into section 25-201 that the legislature never intended. That statute does not prohibit the collection of fees by county officers. All. that section does is provide for the disposal of fees which have been collected by them for official services rendered. This much clearly appears from its title reading: “Disposal of fees collected by county officers.” Likewise this is what the body of the section deals with. It provides: “No county officer shall receive for his own use, any fees, penalties or emoluments of any kind, except the salary as provided by law, for any official service rendered by him, but all fees, penalties and emoluments of every kind must be collected by him for the sole use of the county and must be accounted for and paid to the county treasurer as provided by section 25-203 of this code and shall be credited to the general fund of the county.” There is nothing in this statute which makes Hale’s claim here false merely because he presented it for the work he did.

Further in State v. Hale, 126 Mont. 326, 249 Pac. (2d) 495, again on the first appeal, it was also erroneously determined that the planning, construction and maintenance of the Missoula County Airport were county functions done for county purposes. R-.C.M. 1947, section 1-822, which was relied on as supporting that view, in fact states that these activities are “county functions and purposes as well as public and governmental.” (Emphasis supplied.)

That the business of the Missoula County Airport is not strictly and exclusively a county function is evidenced by the fact that its affairs are conducted not by the county commissioners, but by a separate board called the Airport Board. The $600 warrant in question here was not paid out of county funds, but was drawn on the “Airport Commission Fund”. This fund may be raised by taxation, li.C.M. 1947, section 1-816, or may result from federal or state aid, li.C.M. 1947, section 1-818.

We are not to be understood as being of the opinion that the defendant was justified in retaining the $600, paid him by the claim here presented, merely because these moneys were not strictly speaking county funds. What we do say is that the defendant had the right to be tried under proper instructions applicable to his case consistent with rules of law which fit his case. Specifically we are not aware of any statute that makes it the duty of the county surveyor to do the work of the airport board without compensation over and above his salary. Nor do we know of any statute which forbade the filing of the claim here by Hale. Here the record shows that it would have involved an expenditure of $2,500 to obtain someone else to do the work for which defendant charged $600. Had defendant put in a claim in his own name for $600, our attention has been directed to no statute which would prohibit its payment. As county surveyor he was not called up to render these services because of his office.

Nor do we think we are precluded on this appeal from changing our view, as we do, of the law applicable to Hale’s case as previously announced on the first appeal. The doctrine that the law there declared became the law of the case does not reach the third trial of this case when we are convinced of error in our previous opinion. In examining the record now before us we are bound by the legal principles there promulgated, for the reason that the trial judge should not be put in error because he followed the law there declared. Cases supporting this view are cited in State v. Gunn, 89 Mont. 453, 466, 300 Pac. 212.

But the rule that the law of the case is applicable to future proceedings had in the same case does not prevent the court of last resort from correcting a manifest error in its former opinion where to do so promotes justice without substantial injury to anyone. As some writers put it, the evils of adherence to the rule are sometimes greater than those of a departure from it. The cases are collected in the annotations at 1 A.L.R. 1270, 8 A.L.R. 1033, and 67 A.L.R. 1390. And see the case of Johnson v. Cadillac Motor Car Co., 2 Cir., 261 F. 878, 882-887, 8 A.L.R. 1023. Here we need not depart from the rule; but on the other hand we shall not extend that rule beyond the reason for it.

When, as here, we remand the case for a third trial we are not and should not be precluded from asserting the principles of law applicable which are to be applied prospectively upon the third trial, even though to do so necessitates overruling in part the opinion first promulgated; for we are convinced now that that opinion is wrong as we have pointed out above. Barton v. Thompson, 56 Iowa 571, 572, 9 N.W. 899, 41 Am. Rep. 119; Pennington v. Gillaspie, 66 W.Va. 643, 650, 652, 66 S.E. 1009; and see Wiggin v. Marsh Lumber Co., 79 W.Va. 651, 656, 657, 91 S.E. 532. In other words, the law of the case for the third trial is announced now on this the second appeal so far as our present opinion conflicts with what was said on the first appeal.

The judgment of the district court is accordingly reversed with directions to allow the defendant’s demurrer to the information, and thereafter to proceed under R.C.M. 1947, section 94-6707, and, if an amended information be filed, to a new trial as may be consistent herewith.