Opinion
No. 36067.
May 13, 1946.
1. FRAUD.
Where vendor agrees to sell share in realty to purchaser based upon cost of land, vendor's intentional misrepresentation as to cost of land is a statement of fact and not of opinion, and vendor is guilty of actionable fraud if by the falsity the purchaser is induced to pay more than the purchaser's proportionate share of the cost.
2. FALSE PRETENSES.
A vendor agreeing to sell a share in realty to purchaser based on the cost of the land, and intentionally and knowingly misrepresenting the cost so that the purchaser in reliance thereon is actually defrauded by being induced to pay more than the fair or reasonable value of the purchaser's share of the property, is guilty of obtaining money by false pretenses.
3. FALSE PRETENSES.
In prosecution for obtaining money under false pretenses. a check which is received and cashed in due course is the equivalent of "money."
4. FALSE PRETENSES.
In prosecution for obtaining money under false pretenses, proof that defendant received check and indorsed check to an associate who cashed the check was sufficient to show that defendant received the money.
5. CRIMINAL LAW.
In prosecution for obtaining money under false pretenses, prosecuting attorney's argument calling jury's attention to the fact that the evidence was undisputed that defendant told prosecuting witnesses that defendant and others spent $4,000 to buy property, a share in which was sold to prosecuting witnesses, when in fact defendant had paid only $1,200 for the property, was reversible error as improper comment on defendant's failure to testify, where defendant's guilt was not manifest (Code 1942, sec. 1691).
SYDNEY SMITH, C.J., and ALEXANDER, J., dissenting.
APPEAL from the circuit court of Sunflower county, HON. S.F. DAVIS, Judge.
B.B. Allen, of Indianola, Bidwell Adam, of Gulfport, and Ralph L. Landrum, of Jackson, for appellant.
The gist of the indictment charged that Mr. Martin, designing to defraud the Chandlers, fraudulently represented that he and his associates, Mr. F.H. Shortridge and Mr. Wallace Harrison, of Jackson, Mississippi, were interested in a lease of 240 acres of land in Madison County, Mississippi, which they claimed Mr. Martin said had cost $4000, but charged the truth to be that it had only cost Mr. Martin, and his associates, $1200, and that on account of said alleged misrepresentations the appellant had obtained of and from the Chandlers $666.40 "in good and lawful money of the United States of America." To meet the burden of this allegation, the Chandlers were unable to prove that Mr. Martin and his associates were not in fact interested in said land. The State showed, over our objection, that the Chandlers gave Mr. Martin a postdated check for this sum, instead of good and lawful money of the United States of America. We objected to this, as a fatal variance between the allegations of the indictment and the proof.
In an indictment for false pretense, the indictment must describe the property obtained or received with the same reasonable certainty as is required in prosecutions for larceny, and the proof must correspond to the allegations.
Silvie v. State, 117 Ark. 108, 173 S.W. 857; 25 C.J. 631, 640; 1 Wharton Crim. Proc., Sec. 643.
There are two reasons for this: First, that the accused may be informed of what is charged against him, so that he may be prepared to defend the charge as made; and, second, that he may not be subject to a second prosecution for the offense charged in the first indictment, if acquitted or convicted under that indictment.
Hales v. State, 186 Miss. 413, 191 So. 273.
The correct rule is that the proof must establish the obtaining of the property charged in the indictment, not some other property; from which it follows that where, as here, the indictment charged the receiving of money, the case is not made out by proof that merchandise only was obtained. The rule is strikingly illustrated by those cases which hold that when money is charged to have been received, the conviction is not sustained by proof that a bank check was delivered.
McKinney v. State, 17 Ala. App. 117, 72 So. 565; Bates v. State, 124 Wis. 612, 193 N.W. 251, 4 Ann. Cas. 365.
We attempted to show the interest of Mrs. Chandler in this lawsuit, over and above merely being interested in being a witness. We offered to show that she had hounded the county prosecuting attorney, and the district attorney, and even the Assistant Attorney General, and how she was using the criminal courts to collect money, but the court refused to let us make that proof, although our offer to do so is in the record. This was error.
Coleman v. State, 198 Miss. 519, 23 So.2d 404; 14 Mississippi Digest, Witnesses, Key Nos. 361-379.
On empaneling the jury to try this case, the regular panels were exhausted, and the court sent the sheriff out on the streets of Indianola to pick up jurors off the streets, and of course neighbors of the Chandlers; he did not have the names drawn from the jury box, which was available to him. We objected to this and our objection was overruled, so that we were forced to take the neighbors of the Chandlers on the jury. This method of selecting jurors was in violation of the law and highly prejudicial to the rights of the accused.
State ex rel. Attorney General v. School Board of Quitman County, 181 Miss. 818, 181 So. 313; Code of 1942, Sec. 1794.
One of the basic things that must be proved in a case of this kind is that the prosecuting witness was defrauded. This the State wholly failed to show, but the proof is abundant that the Chandlers bought property in line with what other property was selling for in that community at that time. Indeed, there is no fixed value on property of this kind, but it is wholly speculative, and its value depends upon the speculative gambling instinct of the person desiring to buy oil interests. Some of the land in that community at that time sold for as much as $200 an acre; she paid only $16.60 an acre. The proof further shows that the Chandlers had refused to sell their interest in this tract to others, who were willing to buy it, and give them their money back, or more, and that the property was worth what they gave for it then, and is worth that now to one who wishes to gamble on oil. Nor did the Chandlers prove that Mr. Martin got one dime of this money. The check was made payable to Mr. Martin, and by him endorsed over to Mr. Harrison, and the assignment of this interest to the Chandlers came from F.H. Shortridge. Messrs. Harrison and Shortridge stated that they got the money, and when we asked them if Mr. Martin got any of it, they said no, although the court ruled this out.
Mr. Martin did not testify in the case, but taking the Chandlers' testimony in its most unfavorable attitude towards Mr. Martin, we are unable to discern any fraud on his part; certainly he did not "obtain from any person any money," as required for a prosecution under Section 2149 of the Code of 1942, or any other section. Taking their testimony as to Mr. Martin's statements, it amounts to nothing more than puffing statements or sales talk.
Statements as to the value or worth of the thing given in exchange for the property of prosecutor, although false, if falling within the category of puffing" statements or "sellers talk," will not sustain an indictment for false pretense. And where a statement of value is given as an opinion merely, it cannot be regarded as a foundation for such an indictment. A mere misnaming of property offered in exchange, its value in no wise depending on its name, is not a false pretense.
25 C.J. 597.
The gist of the offense (false pretense) under the statute was an intent on the part of the seller to cheat and defraud the purchaser; and if the latter was not defrauded, there was no crime.
Simmons v. State, 160 Miss. 582, 135 So. 196; State v. Hubanks, 102 Miss. 447, 59 So. 803; Pippin v. State, 126 Miss. 146, 88 So. 502; Simmons v. State, 160 Miss. 582, 135 So. 196, 197; King v. State, 124 Miss. 477, 86 So. 874; Dunbar v. State, 130 Miss. 317, 94 So. 224; Overall v. State, 128 Miss. 59, 90 So. 484; 25 C.J. 609.
Dr. J.A. Clark, of Ruleville, was summoned by the State, and we expected to use him, but the State surreptitiously sent him home, and while the jury was at supper we discovered it, called him, and asked him to return, which he said he would do, and get there about 8 o'clock. At 8 o'clock we were ready for Dr. Clark, and asked the court to indulge us a few minutes until Dr. Clark could arrive, that he was on his way, and even asked the court to pass the case on until the next morning that we might have the benefit of Dr. Clark's testimony, and told the court that if Dr. Clark were present he would state that he bought one of these interests, and considered it then and now worth it, and had tried to buy the Chandler interest for what they had in it, since they seemed to be dissatisfied. The court refused to continue and ordered us to close our case. This was error.
During the trial of the case, we attempted to cross-examine Mr. Heath, State's witness, concerning the values then and now of these mineral interests and the court stopped us. Whether values were competent or not, the State opened the question, and we had a right to rebut it.
Brown v. State, 85 Miss. 511, 37 So. 957.
The court astounded us, and the prosecuting attorney, by stopping us at this point and announcing to the jury: "The question before this Court is whether he (Martin) paid $1200.00 or $4000.00, that is the sole issue here." To this we objected and our objection was overruled. This was error.
There are many elements in this lawsuit other than what the cost price of the property was; the State must show intentional fraud; it must show materiality of the representations; it must show that the defendant got and obtained the money on the strength thereof; and that the Chandlers were actually defrauded.
See Dunbar v. State, supra; State v. Hubanks et al., supra; Bracey v. State, 64 Miss. 26, 8 So. 165; State v. Mortimer, 82 Miss. 443, 34 So. 214; Simmons v. State, supra.
In his opening argument the district attorney told the jury, over our objection, that unless they convicted the defendant he would go out and work over some one else," and further "that the Chandlers had some Love Petroleum stock and Martin wanted to get it from them." There is nothing in the record to support this argument and he was drawing on his own imagination about the Love Petroleum stock. This argument was highly prejudicial, unwarranted and unfair.
Martin v. State, 197 Miss. 96, 19 So.2d 488; Ohlman v. State (Miss.), 16 So.2d 372; Sykes v. State, 89 Miss. 766, 42 So. 875; Seal v. State, 169 Miss. 467, 153 So. 385.
The special prosecutor, Mr. Forman, told the jury, in closing for the State, several times throughout his argument that the evidence was undisputed, saying: "The evidence was undisputed that Martin told the Chandlers he and Shortridge and another had bought the property in question for $4000.00, when in truth he had only paid $1200.00 for it," and continued to make the statement about the evidence being undisputed. We objected to this line of argument repeatedly, as being a patent reference to the failure of defendant to testify. Mr. Forman further stated to the jury, over our objection: "Is it fair to the Chandlers, who live in this county, and who make their living at the sweat of their brows, and who knew nothing about oil values, to permit Martin to make false representations to them and get their money. . . . That the Chandlers are people of your county, and of high standing." This line of argument was highly prejudicial when made to the neighbors of the Chandlers who had just been picked up off the street, and put in the jury box, against a stranger, unknown to the jury, and especially is it unfair and in violation of the statute when Mr. Martin did not testify in his own behalf.
Sanders v. State, 73 Miss. 444, 18 So. 541; Reddick v. State, 72 Miss. 1008, 16 So. 490; Smith v. State, 87 Miss. 627, 40 So. 229; Code of 1930, Sec. 1530; 16 C.J. 886, Sec. 2221.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The first assignment is that there was a variance in the proof as to the allegations charged in the indictment; that the indictment charges that the appellant, Martin, "did then and there and thereby wilfully, designedly, unlawfully, fraudulently and feloniously obtain of and from the said Mr. and Mrs. Lane T. Chandler the sum of Six Hundred Sixty-Six and 40/100 ($666.40) Dollars," wherein the proof shows that instead of obtaining money he obtained a check from Chandler in the sum of that amount. It is true that the indictment charges that the appellant obtained the sum of $666.40 in money and the proof shows that he received a check in this amount. However, the proof does not stop here. It shows further that the check which appellant received was paid, and the further observation may be made here that at the time he received the money on this check the appellant and his associates did not even own the lease, and furthermore that they did not buy the lease until a week later, December 22, 1941, the check having been paid on December 15 prior thereto.
It is not every variance between an indictment and the proof which entitles a defendant to an acquittal. The variance must be harmful to the defendant. Notwithstanding the variance, if it develops in the evidence that the defendant has been informed of the nature and cause of the crime which he is required to defend, then such variance is harmless.
Sanders v. State, 141 Miss. 289, 105 So. 523.
Evidence that treasurer of building and loan association drew check of association and endorsed payee's name and had bank credit amount to his individual account and applied money to his own use established embezzlement as against contention embezzlement was not of money.
Richburger v. State, 90 Miss. 806, 44 So. 772; Simmons v. State, 165 Miss. 732, 141 So. 288; Simmons v. State, 242 Ala. 105, 4 So.2d 905.
Counsel next contends that the court erred in overruling his objection to the method of selecting jurors, as contained in the special bill of exceptions, "The regular panel of jurors was exhausted, and the court directed the sheriff to go into the streets and bring in men for jurors to try the case, and this was done to complete the panel and two such jurors were brought in, J.M. George and Charlie Benson; to the method of selecting and calling these extra jurymen the defendant then and there excepted and objected, which objection and exception were then and there overruled." This was not error.
McCary v. State, 187 Miss. 78, 192 So. 442; Smith v. State, 196 Miss. 524, 18 So.2d 300; Laws of 1938, Chap. 301, amending Code of 1930, Sec. 2058.
The next contention of counsel for appellant is that the Chandlers were not defrauded, their contention being, in part, that the value of oil leases was speculative and depended upon the gambling instinct of the person wanting to buy, and that land in that vicinity (which was shown by the evidence to be several miles therefrom) was selling at a higher price per acre than that paid by the Chandlers, and further contending that there was no fraud on the part of appellant, Martin, but that his statements amounted to nothing more than "puffing or sales talk" — in other words, salesmanship — and he also argues that the Chandlers refused to sell this acreage, contending that several people were anxious to buy it. This is not supported by the record. The evidence is, if it be material, that they had not been offered any price for this acreage.
The evidence in this case shows conclusively and it is not denied that the appellant Martin made the false representations as to the value of the property involved, and the evidence shows conclusively without dispute that the Chandlers relied upon these false representations and parted with their money. This is all that is necessary to establish the offense.
King v. State, 124 Miss. 477, 86 So. 874; State v. Grady, 147 Miss. 446, 111 So. 148; Smith v. State, 55 Miss. 513.
See also Underhill on Criminal Evidence (2 Ed.), Sec. 436, 437.
Section 586, Code of 1930, does not withdraw from the trial judge the right to state in the presence of the jury his reasons for rulings on evidence made in the progress of the trial, and he has the right so to do, provided he does not thereby transgress the proprieties, which is not done when the stated reason advises the jury of that only which they would have known from the ruling itself.
Bumpus v. State, 166 Miss. 276, 144 So. 897; Griffin v. State, 171 Miss. 70, 156 So. 652; Reece v. State, 154 Miss. 862, 123 So. 892.
Appellant also contends that the court erred in proceeding with the trial without giving him an opportunity to get Dr. J.A. Clark to testify. He states that this witness was summoned by the State and the appellant expected to use him, but the State surreptitiously sent him home. The answer to this is that the indictment was returned in 1943 and counsel had ample time to have Dr. Clark summoned for the defendant. It is dangerous practice to rely on the district attorney to look after defendant's witnesses, and the safer way is to have your witnesses summoned.
Perkins v. State, 130 Miss. 744, 95 So. 95; Boatwright v. State, 143 Miss. 676, 109 So. 710.
The court's action in discretionary matters cannot be used as a ground for reversal unless there has been palpable abuse of discretion.
Simmons v. State, 165 Miss. 732, 141 So. 288.
When this Court has to review an appeal from the court below, it must give effect to all reasonable presumptions in favor of the ruling of the court below.
Ogden v. State, 174 Miss. 119, 164 So. 6.
Counsel contends that the court erred in overruling his objection to the improper argument of the attorneys for the State. The first objection is to the argument of the district attorney, wherein the district attorney stated "that the Chandlers had some Love Petroleum stock and Martin wanted to get it from them." Counsel contends that there is no evidence in the record to support this argument. Counsel is in error. This argument was based on the evidence which is in the record.
It is contended that the argument of Mr. Forman, special prosecutor for the State, was improper, prejudicial, and reversible error, wherein he stated: "The evidence was undisputed that Martin told the Chandlers that he and his associates and others had bought the property in question for $4,000.00 when in truth he had only paid $1200.00 for it." Counsel contends that this violates Section 1691, Code of 1942. It is true that the evidence in this case was undisputed and undenied, but the court has held that this argument or kind of argument was not a comment on appellant's failure to testify.
Hanna v. State, 168 Miss. 352, 151 So. 370.
See also Reeves v. State, 159 Miss. 498, 132 So. 331; Comings v. State, 163 Miss. 442, 142 So. 19.
Argued orally by Bidwell Adam and B.B. Allen, for appellant, and by R.O. Arrington, for appellee.
On and for some time before December 12, 1941, appellant was and had been associated with a firm in Jackson, whose principal business was in buying and selling mineral leases. On that day appellant went to the home of the prosecuting witnesses, Mr. and Mrs. Lane Chandler, in Indianola, and stated to them that he and his two associates in the firm aforesaid had purchased a mineral lease on the Heath lands in Madison County consisting of 240 acres, described as the NE 1/4 and E 1/2 of NW 1/4 Sec. 33, Tp. 11 N., R. 3 East, and that he and his said associates had paid therefor the sum of $4,000 — each of them furnishing one third of the purchase price. Appellant further stated to the prosecuting witnesses that he and his associates had determined to sydicate the lease by dividing it into six undivided shares and to take into it three additional parties, each with an undivided one-sixth interest, on terms of equal cost as between appellant and his associates and the vendees; and that in view of the fact that appellant had had a previous transaction with the Chandlers and felt an interest in them, he would offer them one of the sixths at one sixth of the cost of the lease, or $666.40.
The Chandlers had had no experience in the oil business, knew little about mineral leases, and had not been upon or near the land in question; but did know from current happenings that there was considerable activity in the production and search for oil in Madison and the adjoining counties to the west. They testified that in view of the fact that appellant and his associates were experienced in the business and knew the values of leases and, according to the statement by appellant, had backed their knowledge by actually paying out their own money for the lease, they were induced, in reliance on appellant's statement, and because thereof, to accept his offer, and they did so by delivering to him their check for $666.40, payable to appellant. This check was endorsed by appellant to one of his associates who collected the money on it on its due presentation three or four days later.
All the foregoing is shown by the State's witnesses; and it was further shown by them (1) that as a matter of fact appellant and his associates did not have a lease on the Heath lands on December 12, 1941, and did not obtain same until December 16th; (2) that, as a matter of fact, appellant and his associates had not paid out any money whatever for the lease on December 12, 1941; (3) that when later they did obtain the lease, they paid only $1200 for it, and not $4000; and (4) that the lease was not then worth any more than the $1200. The prosecuting witnesses admit that on December 22, 1941, appellant and his associates conveyed to the former the one-sixth interest which has been mentioned.
Appellant introduced in rebuttal ample testimony which, if believed by the jury, would have shown that the one-sixth interest conveyed to the prosecuting witnesses was actually and fairly worth at the time of the transaction the sum paid by the prosecuting witnesses for it.
Upon the indictment charging him with obtaining money under false pretenses, appellant was convicted, and on this appeal assigns many errors, one of which is that he should have had his requested charge of not guilty, and this on three grounds: (1) That representations as to the amount paid for property is in effect an averment of opinion as to its value and is not a statement of fact sufficient to support a charge of false pretenses; (2) a conviction cannot be sustained on a charge that appellant obtained money when he received only a check; and (3) because the proof shows that one of his associates, and not appellant, obtained the money.
(1) In 2 Wharton Crim. Law (12 Ed.), p. 1715, it is stated in a note that false representation by vendor of price paid for real estate is not actionable. The leading cases so holding were reviewed in Dorr v. Cory, 108 Iowa 725, 731, 78 N.W. 682, wherein the contrary conclusion was reached, with which other cases have agreed. Undoubtedly, there is a considerable diversity of opinion on the precise point, as is disclosed by the cases cited in 37 C.J.S., Fraud, Sec. 57, pp. 342, 343, and 23 Am. Jur., pp. 836, 837; but it is generally held, as may be seen from a number of the cases cited in the notes 66 A.L.R., p. 193, that where an owner of land has agreed with another or others that the latter, as vendees of interests therein, shall be admitted on equal terms with the vendor based upon cost, an intentional misrepresentation by the vendor as to the cost is a statement of fact and not of opinion, and if by the falsity the vendee is induced to pay more than his proportionate share of the cost, the vendor is guilty of actionable fraud, from which it follows that if thereby the amount paid by the vendee is distinctly more than the fair or reasonable value of the property at the time a criminal charge of false pretense may be supported thereby. We concur in that view, which renders it unnecessary to pursue the point in its broader aspects, adding, as we have done, that in order to sustain the criminal charge, it must be shown, and beyond a reasonable doubt, not only that the false statement of fact was knowingly made and was reasonably relied on, but that the property at the time was clearly not worth the amount paid for it, the rule in this State being, as the Attorney General concedes, that the purchaser must have been actually defrauded. Simmons v. State, 160 Miss. 582, 135 So. 196.
(2) In his contention that proof that a check was received and cashed in due course will not sustain an indictment which charged the receipt of money, appellant cites Hales v. State, 186 Miss. 413, 191 So. 273, wherein the opinion, not as decision but as a part of the discussion, so states and cites McKenney v. State, 17 Ala. App. 117, 82 So. 565. The Supreme Court of Alabama has recently reconsidered the general subject, Simmons v. State, 242 Ala. 105, 4 So.2d 905, and looking to the reasoning displayed in that case, we have concluded that so far as concerns a charge of the nature here before us, a bank check cashed in due course is for all practicable purposes, under the business customs of the day, the equivalent of the money itself, being the immediate instrumentality by which the money is obtained, and that appellant's contention on the point should be rejected. See also, as bearing upon the point, Simmons v. State, 165 Miss. 732, 744, 141 So. 288.
(3) What has been said in the foregoing paragraph disposes of the contention made by appellant that he did not receive the money, and that it was actually obtained by one of his associates. Appellant received the check which was endorsed by him to an associate, who cashed it, and this was enough so far as appellant was concerned.
Appellant was not entitled to the peremptory charge, but the judgment and sentence must be reversed and vacated because of the violation by the prosecution of Section 1691, Code 1942, which prohibits comment by counsel for the State on the failure of accused to testify. The special bill of exception recites that "the defendant further objected to the argument of J.M. Forman who closed the argument for the State when he said that the evidence was undisputed that Martin told the Chandlers that he and Shortridge and another had bought the property in question for $4000 when in truth and in fact he had paid only $1200 for it; and again it was undisputed by any evidence on this case that Martin told the Chandlers that he and his associates had paid $4000 for the property; and further Mr. Forman stated in his closing argument to the jury that it was undisputed by any evidence that Martin told the Chandlers that they were getting up a syndicate so that each member would own a 1/6 interest in the 240 acre tract and that he and his associates had each then and there put up the sum of $666.40," etc.
Inasmuch as the appellant was the only person in a position to make the denials, the absence of which was being brought so prominently before the jury, the quoted statements by the prosecuting attorney "could have meant nothing less than a comment on appellant's failure to testify." Winchester v. State, 163 Miss. 462, 142 So. 454, 457. We have recently reviewed all our cases on this subject in Lambert v. State, 199 Miss. 790, 25 So.2d 477, and there is nothing to add to what was there stated except to say that the guilt of appellant is not here so manifest as that no other verdict could have been honestly returned, and there are two reasons for this other than the substantial conflict in the evidence on the issue of the actual value of the interest at the time.
The special bill of exceptions shows also that the prosecuting attorney appealed to the jury to give particular consideration in behalf of the Chandlers as people of high standing in the county and against appellant a stranger, but as this will probably not happen on a new trial, we pretermit it. Likewise, and for the same reason, the complaint about the tales jurors, about forcing a pursuit of the trial at night, the failure to wait a few moments for an important witness, the comment of the trial judge that the only issue in the case was whether appellant and his associates paid $4000 or only $1200, and the asserted conflict in the instructions. We may say, however, that, in our opinion, instructions numbered 6, 7, and 8 were correctly refused by the court, because not drawn with entire accuracy in verbiage.
Reversed and remanded.
DISSENTING OPINION.
The judgment of the court below should not be reversed, because the prosecuting attorney, in his argument, calls the attention of the jury to the fact that the evidence was undisputed "that Martin told the Chandlers that he and Shortridge and another had bought the property in question for $4000 when in truth and in fact he had paid only $1200 for it" for two reasons: (1) It is manifest from the evidence that the appellant is guilty of the crime charged against him, and (2) this comment should not be held to refer to the appellant's failure to testify in his own behalf. The prosecuting attorney had the right to call the jury's attention to the fact that the evidence of none of the witnesses who testified in the case disclosed any dispute as to what Martin told the Chandlers — in fact, he could hardly have argued the case intelligently and effectively without so doing. This decision, together with that of Lambert v. State, 199 Miss. 790, 25 So.2d 477, makes it "almost impossible for a prosecuting attorney to safely argue a criminal case to the jury when the defendant therein fails to testify."
Alexander, J., concurs in the foregoing dissent upon the first ground mentioned therein.