State v. Phelps , 41 Wash. 470 ( 1906 )

Fullerton, J.

On June 26, 1905, the respondent was under arrest in Adams county, accused of the crime of obtaining property under false pretenses. On that day the prosecuting attorney of Adams county filed an information against him in the following language:

“Comes now Walter Staser, prosecuting attorney and county attorney in and for Adams county, Washington, and by this information accuses Gifford W. Phelps of the crime of obtaining a thing of value under false pretenses, committed as follows, to wit: That the said Gifford W. Phelps, in the county of Adams and State of Washington, then and there being, on or about the twelfth day of May, 1905, and within one year last past, did then and there, designedly, and with intent to defraud another, by false and fraudulent pretenses, to wit: That, the said Gifford W. Phelps was organizing a banking corporation to do' a general banking business at Lind, Adams county, Washington, and that James Nielson and Dugal Nielson had subscribed for and purchased ten thousand dollars worth of the capital stock of the said corporation; that it was necessary to purchase some furniture and fixtures to be used in the said bank; that a certain person, O. IT. Greene, of Ritzville, Washington, had told and represented to the said Gifford W. Phelps that the said furniture and fixtures could be purchased at a bargain in tire city of Spokane, Washington; if purchased at once for cash; and •the said O. H. Greene had advised and directed the said Gifford W. Phelps to procure from B. P. Berry a promissory note for about eight hundred fifty dollars, and he, the said O. H. Greene, or the Pioneer State Bank of Ritzville of which he was cashier, would cash the said note and advance the money thereon: obtain a thing of value to wit: did induce the said B. P. Berry to sign, execute and deliver, a certain written instrument which was in the following words and figures to wit:

“ ‘$850. Ritzville, Wash., May 13, 1905.

“ ‘Six months after date, without grace,-promise to pay to the order of-eight hundred and fifty dollars and none hundredths in gold coin of the United States at the rate of one per cent per month from date until paid for value received. Interest to be paid-and if not so paid the whole sum of both principal and interest to ber come immediately due and collectible at the option of the holder of this note. And in case suit or action is instituted to collect this note or any part thereof, - promise and agree to pay, in addition to the costs and disbursements, provided by statute - dollars in like gold coin for attorney’s fees in said suit or action.

190 — . G. W. Phelps.

- No. B. P. Berry.’

“That all of the statements and representations above enumerated, were false, fraudulent and untrue, and were known by the said Gifford W. Phelps to be false, fraudulent and untrue; and that by the said false and fraudulent representations and pretenses, as aforesaid, the said Gifford W. Phelps did obtain from the said B. F. Berry the aforesaid promissory note, and the said representations were made designedly and for the purpose of deceiving and defrauding the said B. F. Berry in obtaining a thing of value, to wit: the promissory note, and the aforesaid note was a thing of value, and the said B. F. Berry then and there believed, relied and acted upon all of the aforesa*! representations contrary to the form of statute in such cases made and provided, and against the peace and dignity of the state of Washington.”

To this information the respondent interposed a general demurrer, which the trial court sustained. The prosecuting attorney on behalf of the state thereupon elected to stand on the information, upon which the court discharged the rer spondent and dismissed the action. The state appeals.

The question presented is, does the information state facts sufficient to constitute a crime? Before a person can be convicted of the statutory crime known as obtaining money or other property under false pretenses, it must be made to appear that the person did, with intent to defraud, designedly, by color of some false token or writing, or by some false pretense, obtain from another some one or more of the things enumerated in the statute, or something of value not therein specially enumerated. And, of course; an information, in order to state facts sufficient tc constitute a crime, must allege-the intent to defraud, the design, the means used by which the fraud was practiced, and must describe the articles, or thing of value obtained. Measured by these tests, it is at once apparent that the information before us does sufficiently allege the intent to defraud, the design, and sufficiently describes the thing of value obtained from the prosecuting witness. The only essential about which there can be any question is the allegation concerning the means used to induce the prosecuting witness to part with his property. The argument against the sufficiency of this part of the information is two-fold; it is said, first, that the representations made were neither of past or present facts, nor calculated to deceive; and, second, that they were insufficient to deceive a person of ordinary prudence and common intelligence.

But it seems to us that neither of these objections are well taken. The representations which induced the prosecutor to part with his property are clearly of past or present facts. We think, also, that they were pertinent to the matter the respondent desired to accomplish; in other words that they were calculated to deceive. The representation that respondent was organizing a bank to do a general banking business at a particular place; that certain persons had taken stock therein; that it was desirable at that time to have a little ready money for a particular purpose; that it could be obtained upon the prosecutor’s note, and that a certain banker had sent the respondent to the prosecutor to procure the note; were all representations of material past or present facts, calculated to deceive the prosecuting witness and induce him to deliver over to the respondent property that he would not otherwise deliver over.

As to the second objection, it is the rule in Indiana and perhaps one or two other states, that a false pretense to- be criminal must be of some fact as would tend to deceive a person of ordinary prudence and common intelligence (Clifford v. State, 56 Ind. 245; State v. Burnett, 119 Ind. 392, 21 N. E. 972) ; but the great weight of authority is to- the opposite effect. The general rule is that any pretense which deceives the person defrauded is sufficient to sustain an indictment or information, and hence, sufficient to sustain a conviction. 3 Words & Phrases, 2664. Therefore; while the foregoing information is not recommended as a model, we think it states a crime, and that the trial court erred in sustaining the demurrer interposed to its sufficiency. The judgment appealed from is reversed, and the cause remanded, with, instructions to reinstate the case and overrule the demurrer.

Mount, C. J., Root, Cbow, Dunbab, and Hadley, JJ., concur.