Summary
In Cohran, supra, this Court held that the indictment there did not allege sufficient extrinsic facts to show what the words and figures in the indictment represented.
Summary of this case from Neece v. StateOpinion
No 39899.
December 19, 1955.
1. False pretenses — indictment — essential averments.
Indictment for false pretenses must charge that pretenses were false, that defendant knew them to be false, that he obtained from another certain money or other valuable things, and that the pretenses were the moving cause by which such money or things were obtained. Sec. 2149, Code 1942.
2. False pretenses — indictment — fatally defective.
Indictment charging that by means and color of false writings, in stated words and figures, defendant had obtained money in specified sum from named partnership was fatally defective, in absence of allegation of extrinsic facts in explanation of alleged pretense and wherein it consisted. Sec. 2149, Code 1942.
Headnotes as approved by Lee, J.
APPEAL from the Circuit Court of Lafayette County; T.H. McELROY, Judge.
Wm. E. Cresswell, Asst. Atty. Gen., Jackson, for appellant.
I. The indictment, as against the demurrer, sufficiently charges the offense of obtaining money under false pretenses, denounced by Section 2149, Code of 1942. Cohran v. State, 219 Miss. 767, 70 So.2d 46; Odom v. State, 130 Miss. 643, 94 So. 233; State v. Dodenhoff, 88 Miss. 277, 40 So. 641; State v. Freeman, 103 Miss. 764, 60 So. 774; State v. Grady, 147 Miss. 446, 111 So. 148; State v. Tatum, 96 Miss. 430, 50 So. 490; Sec. 2149, Code 1942.
Ethridge Ethridge, Oxford, for appellee.
I. Since it is already established in Cohran v. State, 219 Miss. 767, 70 So.2d 46, that the so-called cotton tickets amount to nothing on their face, and that the indictment didn't and couldn't allege any extrinsic facts that would give writings that amount to nothing legal efficacy on their face, appellee submits that the trial ruling on the demurrer should be sustained.
This is an appeal by the State from a judgment of the Circuit Court of Lafayette County, which sustained a demurrer to the indictment of Mattie Cohran.
The indictment was drawn under Section 2149, Code of 1942, and attempted to charge the crime of false pretenses. Omitting the formal parts, it charged that Mattie Cohran and another: "late of the County aforesaid, on or about the 30th day of October, 1952, in said County and State did wilfully, unlawfully, knowingly, fraudulently, designedly, and feloniously, with intent to cheat and defraud one Ross Brown and Barry Brown, a partnership, by color of certain false writings, in words and figures as follows, to wit:
I. II.
Date 10/30/1952 Date 10/30 1952 Liner Jones Sam Jones No. $300 No. $300
Reg. No. ____ Clerk, Account forwarded 52-Reg. No. ____
Clerk, Account Forwarded 52
185 186 196 172 42 77 _____ _____ PLM 423 PLM 429 OK 3 OK 3 _____ _____ 12.69 12.87
obtain of and from the said Ross Brown and Barry Brown by means and color of the said false writings the sum of $25.56 good and lawful money of the United States,
Against the peace and dignity of the State of Mississippi."
By speculation, it may be assumed that the words and figures, of which profert was made, referred to fraudulent tickets for services rendered in picking cotton. But the indictment did not allege any extrinsic facts in explanation of what such words and figures represented, or what they were intended to be, or wherein they were false.
In Cohran v. State, 219 Miss. 767, 70 So.2d 46, this same appellee was indicted under Section 2172, Code of 1942, for the forgery of similar cotton tickets. The opinion in that case held that it was necessary, in order for the indictment to allege any offense whatsoever, that it should have alleged extrinsic facts to show how the writing could have been used as evidences of debt or engagements for the payment of money; and because of the failure to allege such extrinsic facts, the indictment did not charge any offense whatsoever.
Dunson v. State, ___ Miss. ___, 78 So.2d 580, was a forgery prosecution, under Section 2173, Code of 1942, because of the alteration of a written order for merchandise. The order was in words and figures which would have been unintelligible if the indictment had merely made profert of the order without explanation. But extrinsic facts were charged in explanation of what the words and figures represented, and what they were intended to be, and wherein the forgery consisted.
(Hn 1) In a prosecution for false pretenses, it is necessary to charge that the pretenses were false; that the defendant knew them to be false; that he obtained from another certain money or other valuable things; and that the pretenses were the moving cause by which the money or things were obtained. State v. Freeman, 103 Miss. 764, 60 So. 774. (Hn 2) Because of the absence of extrinsic facts in explanation of the pretense and wherein it consisted, the indictment was fatally defective. In addition, it also failed to charge that the defendants knew that the writings were false.
Consequently the demurrer was properly sustained and the cause is affirmed.
Affirmed.
McGehee, C.J., and Roberds, Holmes and Arrington, JJ., concur.