Opinion
No. 37315.
November 14, 1949.
1. Criminal law — false pretenses — essential requisites.
In order to establish the crime of false pretense the pretense must be a representation as to an existing fact or past event and not as to something to take place in the future, and it must be as to a material fact.
2. Criminal procedure — false pretenses — representation of existing fact — burden and quantum of proof.
When the alleged representation is as to an existing fact, the State, in a prosecution for false pretenses, has the burden to prove beyond a reasonable doubt the falsity of the representation.
3. Criminal procedure — false pretenses — corpus delicti.
The falsity of the representation is a part of the corpus delicti of obtaining money under false pretenses.
4. Criminal procedure — false pretenses — corpus delicti — confession — proof must be made of the corpus delicti by evidence aliunde the confession.
In a prosecution for false pretenses the corpus delicti must be proved by evidence aliunde the defendant's confession.
5. Criminal procedure — false pretenses — corpus delicti — when confession only proof.
When in a prosecution for false pretenses there is no proof of the corpus delicti other than by the confession of the accused, a verdict and judgment of guilty will be reversed and appellant discharged.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Jones County; F.B. COLLINS, Judge.
Gartin Doggette, for appellant.
The assignments of error are as follows: 1. The verdict was contrary to the law and the evidence. 2. The court erred in refusing the instruction of defendant for a directed verdict at the close of all the testimony.
The gist of the crime is the falsehood of the pretense. The falsehood of the pretense must be clearly proved by the State. See Bowler v. State, 41 Miss. 570.
In the present case the State has proved (1) that the appellant stated to the prosecuting witness that he owned, or had control of, or had made arrangements for certain rags in Louisiana, (2) that he promised he would deliver them to the prosecuting witness if the prosecuting witness would let him have One Hundred Dollars ($100.00), (3) that because of these representations the prosecuting witness let him have One Hundred Dollars ($100.00), and (4) that the appellant did not deliver the rags to the prosecuting witness.
There is absolutely no testimony in this record indicating whether the appellant owned any rags in Louisiana except the alleged statement made by the appellant to the prosecuting witness. There is ample authority in this State holding that a statement or confession, of a defendant, standing alone will not sustain a conviction. See Morton v. State, 136 Miss. 284, 101 So. 379 and Stewart v. State, 203 Miss. 295, 32 So.2d 791. When the alleged statement of the appellant is excluded from consideration there is absolutely no evidence in the record for the jury to have based its verdict upon.
In Owen v. State, 159 Miss. 588, 132 So. 753, which seems to us to be the leading case on this point, the court held, "In a criminal prosecution for obtaining property or money under false pretenses, it is necessary in order to establish the corpus delicti, to prove the falsity of the representation made by evidence aliunde a confession; and a conviction based upon a confession alone as to the falsity of the pretense is not sufficient without such proof of the corpus delicti". This case upon which we lean heavily is very similar to the present case. In the Owen case the defendant represented himself as the agent of one L.D. Leach Company and that he was authorized by said company to buy certain timber and poles and that the said company would receive and pay for the said poles; that one J.B. Terry, believing these representations, delivered to the defendant certain timber and poles and was cheated and defrauded thereby. The State clearly proved all of the above. The only evidence of the falsity of the pretense came from a State witness who testified that the defendant stated to him, "that he was not with L.D. Leach Company, and was buying the poles direct, and not as their agent at all". That was the only proof in the record to show that the defendant was not, in fact, the agent of L.D. Leach Company, as he represented himself to be. This court held that before a confession can be admitted in evidence against a person accused of crime, the corpus delicti must be established by evidence aliunde, and consequently, one of the essentials of the offense was not made out by competent evidence, and the conviction upon the confession alone was not sufficient and the judgment was reversed and the defendant discharged.
It seems that the same elements of the crime were proved in the Owen case that were proved in the present case. The evidence by the State in both cases, on the falsity of the pretenses, seems to be identical.
It is true that the defendant testified in his own behalf in the present case but at no time was he questioned as to the falsity of the pretense. After his testimony is considered the record is still totally bare of any testimony on the falsity of the pretense other than the defendant's statement to the prosecuting witness. Although appellant testified in his own behalf the burden of proof was still on the State to prove its case. His act in testifying did not lessen that burden.
Therefore, we submit that the verdict was clearly contrary to the law and evidence and that the lower court erred in refusing the instruction of the defendant for a directed verdict at the close of all the testimony, and that the judgment should be reversed and the appellant discharged.
George H. Ethridge, Assistant Attorney General, for appellee.
I submit that the proof for the State was sufficient to sustain a conviction and that it was the function of the jury and the jury alone to determine the credibility of the witnesses and the weight and worth of the evidence and this the jury did in the present case under appropriate instructions and this holding of the jury was approved by the trial judge in overruling the motion for a new trial. It is not necessary to set out a lot of cases holding that the questions of fact in which witnesses differ are for the decision of the jury and that the jury is the judge of the weight and worth of the testimony in the case. Abundant authorities are annotated and collated in 5th Mississippi Digest, "Criminal Law", Key No. 741-757, but I submit that the court is familiar with these cases and need not take up time and labor in analyzing them because they sustain the conviction on the facts in this case and the great weight and worth of the testimony is not with the defendant but is with the State and the court will not disturb a conviction supported to the extent that the evidence in this case supports the finding of the jury rendering the verdict.
J.L. Button was convicted in the Circuit Court of Jones County on a charge of obtaining money under false pretenses and sentenced to a term of one year in the penitentiary.
The proof for the State tends to show that J.L. Button was working for Pickering McNeil, Junk Dealers of Laurel, Mississippi, and on June 12, 1948, Button went to P. Pickering, one of the partners, and told him that he had some cotton rags in a warehouse in Baton Rouge; that he had already arranged to get them and all he had to do was go get them, but it would require $100.00 and the use of a truck. He requested an advancement of $100.00 and the loan of a truck so he could go get the rags and deliver them to Pickering McNeil, who would buy them at five cents per pound. Pickering, on behalf of Pickering McNeil, advanced the $100.00 out of the partnership funds and delivered a partnership truck to Button, in full reliance upon Button's representations. About a week later, Button not having returned with the rags or the truck, and learning that the truck was in Laurel, Pickering McNeil sent an employee, J.N. Pittman, to get the truck and return it to the plant. This was accordingly done by Pittman. Two or three days later, Button came to the office of Pickering McNeil and there stated to P. Pickering that he had not been to Baton Rouge and that at the time he obtained the $100.00 and the truck from Pickering McNeil he had no intention of getting any rags but had used the $100.00 to pay some law violation fine in Natchez.
For the reasons hereinafter shown it is not necessary to review the evidence of the defendant, because the evidence does not make out a case against the defendant.
It is fundamental that (Hn 1) in order to establish the crime of false pretenses, the pretense must be a representation as to an existing fact or past event, and not as to something to take place in the future; and it must be a representation as to a material fact. 35 C.J.S., False Pretenses, § 8, page 646; State v. Grady, 147 Miss. 446, 111 So. 148; Hammack v. State, 114 Miss. 611, 75 So. 436.
(Hn 2) Here the representation of fact made by Button was that he had cotton rags in a warehouse in Baton Rouge. This was a representation as to an existing fact and the burden was on the State to prove its falsity beyond every reasonable doubt. The only proof in this record tending to show the falsity of the representation is in the confession made by Button to P. Pickering and testified to by him, wherein he testified that Button told him that at the time he obtained the $100.00 and the truck he had no intention of going to Baton Rouge to get rags but had used the money to pay a fine in Natchez.
(Hn 3) The falsity of the representation is a part of the corpus delicti of obtaining property under false pretenses, and (Hn 4) the falsity of the representation must be proved by evidence aliunde the confession. (Hn 5) A conviction of obtaining property under false pretenses, based alone upon a confession as to falsity of the pretense, is insufficient without other proof of the corpus delicti. Owen v. State, 159 Miss. 588, 132 So. 753.
The peremptory instruction requested by the defendant should have been granted. The judgment of the lower court is reversed and appellant discharged.
Judgment reversed and appellant discharged.