Opinion
No. 39845.
January 23, 1956.
1. False pretenses — selling property whereon was a lien — statutes — punishment.
Where defendant was convicted under Sec. 2151, Code of 1942, of obtaining buyer's money under false pretenses by selling property on which defendant had previously given lien without informing buyer of lien which statute prescribed that punishment thereunder was same as for obtaining goods under false pretenses, Supreme Court held that Sec. 2149, which dealt with conduct more nearly similar was applicable statute, and defendant would be sentenced under latter statute prescribing three years' imprisonment as maximum term. Secs. 2149, 2151, Code 1942.
2. False pretenses — same — indictment — sufficient.
Indictment drawn under Sec. 2151, Code of 1942, which charged accused sold bale of lint cotton, giving gin tag number, warehouse receipt number and weight, on which he had given a deed of trust and lien without first informing purchaser of existence and state of the lien with felonious intent to cheat and defraud purchaser thereof, and further alleging that accused did cheat and defraud purchaser, was full and complete, and did not charge more than one offense in a single count, since deed of trust and lien were the same thing. Sec. 2151, Code 1942.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Warren County; R.B. ANDERSON, Judge.
John B. Gee, Vicksburg, for appellant.
I. The indictment is fatally defective in that it charges more than one crime. Black v. State, 199 Miss. 147, 24 So.2d 117; State v. Sam, 154 Miss. 14, 122 So. 101; Woodall v. State, 129 Miss. 854, 93 So. 366; West v. State, 169 Miss. 302, 152 So. 888; Sauer v. State, 166 Miss. 507, 144 So. 225; Hampton v. State, 99 Miss. 176, 54 So. 722; Voss v. State, 208 Miss. 303, 44 So.2d 402; Secs. 22, 26, Constitution 1890; Sec. 2151, Code 1942; 27 Am. Jur., Indictment and Information, Secs. 124, 183 p. 683; 3 Words and Phrases (2d ed.) 129; 4 Words and Phrases (2d ed.) 1022; Black's Law Dictionary (3rd ed.), terms "lien" and "trust deed."
II. The indictment is vague and indefinite, and without force and effect because of its failure to identify the owner or use in the alleged deed of trust.
III. The Court exceeded its authority in the sentence imposed herein. Secs. 2149, 2151, Code 1942.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The indictment is drawn in the exact language of the statute, Section 2151 of the Mississippi Code of 1942.
II. Although we agree with the authorities cited by the appellant as to the definition of a lien, we do believe that the authorities cited by appellant defining the words have reference only to liens created by operation of law, while the statute in question sets forth liens or encumbrances that are created by contract as well as law. It is, therefore, our contention that the Legislature in enacting the statute definitely contemplated that a deed of trust, which is created by a contract, would in all things be a lien or encumbrance within the purview of the statute. We do not, therefore, believe that the indictment describes two different crimes.
III. We would further point out to the Court that even if the proposition here raised by the appellant has any merit, it should not now be raised for the first time on appeal, for the reason that the use of the word lien in the indictment could not amount to more than a variance between the indictment and proof, and the authority is well established by numerous opinions of this Court that in order to raise such a question this must be done prior to the verdict, because the indictment is amendable and the question cannot be raised for the first time on appeal.
IV. The appellant argues that the indictment is fatally defective for the reason that it fails to identify the person, or persons, with whom the appellant made the transaction. The basis for this contention is that in the indictment it is said that the appellant did "sell to Nathan Levy and Company, a partnership composed of Nathan Levy, Sr., and Mrs. Ruth B. Levy," but the indictment did not state which partner the appellant did business with, but merely stated that he failed to inform the said Nathan Levy Company of the existence of the deed of trust and lien. In this connection, we would point out to the Court that Nathan Levy Company is described as being a partnership and the partners' names are definitely set forth. The indictment states that the appellant did not inform the said Nathan Levy Company, "as aforesaid." We cannot see how the appellant can now contend that the indictment does not definitely say who the appellant did business with. Inasmuch as he is definitely apprized that he did business with the partnership and the name of the partners are definitely given to him, we believe the law to be too well established to quote authorities that when a partnership is identified and it is said to be the party from whom a thing is stolen or whom the accused did business with, that this is sufficient and is all the law required.
V. If any person shall sell any property on which he knows there is a lien without informing the person to whom he sells of the existence of the lien, he shall be guilty of obtaining under false pretenses whatever he received from the person dealing with him, and an indictment which is drawn in the language of the statute is in all things sufficient.
VI. Appellant makes the contention that the five-year sentence imposed upon the appellant is excessive punishment and that the Court exceeded its authority, and states that the punishment imposed should be in accordance with Section 2149, Code of 1942, and points out that Section 2151, under which the indictment was made, had its source in the Code of 1880, and the only other statute of equal age is Section 2149, which we here point out had its source in Hutchinson's Code of 1848. The statute merely states that when convicted the defendant shall "be punished therefor, as for obtaining goods under false pretenses," and that Section 2150 of the Code of 1942 had its source in Hutchinson's Code of 1848, as does Section 2149. It is the contention of the State that Section 2150, which provides for a maximum punishment of seven years, applies with equal force to the above-quoted phrase in Section 2151, as does Section 2149, which provides for a maximum punishment of imprisonment not exceeding three years. The State contends that because of the alignment of the said sections, Section 2150 immediately preceding the section in question, that the punishment imposed should be in accordance with that set forth in Section 2150.
Because of the death of the Court Reporter, the stenographic notes of the testimony taken at the trial of the above styled cause were never transcribed. But the record on appeal discloses the indictment on which the appellant was tried and convicted of obtaining money under false pretenses and the judgment whereby he was sentenced to serve a term of five years in the state penitentiary.
The assignment of errors challenges the sufficiency of the indictment and the right of the trial court to impose a sentence of more than three years of imprisonment in the state penitentiary upon a conviction under Section 2151, Code of 1942, which is the statute specifically referred to in the indictment as having been violated.
(Hn 1) That statute merely provides that one convicted of having violated the same shall be punished therefor "as for false pretenses". There are several preceding statutes of the Code chapter which prescribe punishment of ten years, seven years and other periods of imprisonment in the state penitentiary for particular types of crime by false pretenses, including Section 2149, prescribing a maximum of three years imprisonment in the penitentiary. We have concluded that the latter section is the statute to which we must look for the proper sentence under Section 2151, supra, since it is the one which deals with conduct more similar to that here involved — obtaining the money or other property of another by any false pretense.
(Hn 2) Complaint is made of the indictment in many respects. It charges that the accused sold a bale of lint cotton on which he had given "a deed of trust and lien" in favor of the United States of America, and without informing the purchaser of the cotton of the existence and state of the lien; that the cotton was sold to Nathan Levy Company, a partnership composed of Nathan Levy, Sr., and Mrs. Ruth Levy, for the sum of $144.50, with the felonious intent to cheat and defraud the said partnership, etc., giving the gin tag number, warehouse receipt number and weight of the bale of cotton; and alleging that he did cheat and defraud the said Nathan Levy Company of the said sum of $144.50.
In other words, the indictment is full and complete; it does not charge more than one offense in a single count, a "deed of trust and lien" being one and the same thing, and the gravamen of the offense being that he sold property on which he had previously given a lien without informing the purchaser of the lien, and thereby fraudulently and feloniously obtaining the money of the purchaser.
We have considered the other grounds of the demurrer to the indictment, and we are of the opinion that all of them are without merit.
The judgment appealed from will, therefore, be affirmed, but the cause is remanded for the imposition of the proper sentence under Section 2149, Code of 1942.
Affirmed, but remanded for proper sentence.
Hall, Lee, Kyle and Holmes, JJ., concur.