Opinion
No. 4514.
Argued June 6, 1956.
Decided July 6, 1956.
An indictment under the false pretenses statute (RSA 580:1) for issuing a bank check with intent to cheat and defraud was ordered to be quashed where it was neither alleged in the indictment nor proven at the trial that the respondent obtained money, property, or anything whatsoever within the meaning of the statute.
Since no offense was charged under the statute there could be no conviction of an attempt to commit that offense.
Where a respondent was tried and sentenced on an invalid indictment under one criminal statute the indictment may not be sustained because the offense may have been charged under another statute.
INDICTMENT, charging that the defendant on the 26th day of August, 1955, at Concord, with force and arms, "feloniously with intent to cheat and defraud William A. Mahoney of 45 North Main Street, in said Concord, did make and deliver in hand a check for the sum of $100.00 upon the Norway First National Bank purporting to be of Norway in the State of Maine, when in truth and fact no such bank exists and the said Elmer Herbert Ellsworth had no funds in any bank in said Norway, Maine, for the payment of said check." Trial by jury resulting in a verdict of guilty. The defendant excepted to the denial of his motion made in advance of trial and renewed at the close of the State's case, to dismiss the indictment on the grounds that it failed to set forth any offense and because it was vague and indefinite and did not permit the preparation of an adequate defense. He also excepted to the Court's refusal to charge as requested and "to the denial of his motion to set aside the verdict." The facts, so far as material, appear in the opinion. Reserved and transferred by Grant, J.
Louis C. Wyman, Attorney General, Warren E. Waters, Deputy Attorney General, and John W. Stanley, Jr., county solicitor (Mr. Waters orally), for the State.
James C. Cleveland (by brief and orally), for the defendant.
The record discloses that when the motion to dismiss was made prior to the trial the county solicitor, in response to a question by the defendant's attorney, stated that the offense charged was under RSA 580:1, and added, "False Pretenses is the title." The material portions of this statute read as follows: "FALSE PRETENSES. If any person, with intent to cheat or defraud, shall, by personating or representing another, or by means of any false pretense or false token, counterfeit letters, or other false means, wrongfully obtain any money or other property . . . or shall, by any such means, attempt so to cheat or defraud another"; he shall be fined or imprisoned. It was neither alleged in the indictment nor proven at the trial that the defendant obtained money, property, or anything whatsoever within the meaning of s. 1, supra. The indictment followed neither the words of the statute nor the form suggested in Justice Sheriff, c. 39 (1931 ed.). Since no offense was charged under RSA 580:1 the defendant could not have been convicted of an attempt to commit that offense. See State v. Skillings, 98 N.H. 203, 206. The defendant's motion to dismiss should have been granted. State v. Mealey, 100 N.H. 228, and authorities cited.
The State also argues that an offense was charged under the fraudulent check statute. RSA 582:12. The difficulty with this contention is that the record discloses that the defendant was tried and sentenced under RSA 580:1, the false pretenses statute, upon an invalid indictment. It follows the order is
Indictment quashed.
All concurred.