State v. Egan

WHITING, J.

Section 4271, R. C. 1919., is as follows:

“Sec. 4271. Every person who presents or causes to be presented any false or fraudulent claim, or any proof in support of any such claim, upon any contract of insurance for the payment of any loss, or who prepares, makes or subscribes any account, certificate, survey, affidavit, proof of loss, or other book, paper or writing with intent to present or use the same, or to allow it to be presented or used in support of any such claim', is punishable by imprisonment in the state penitentiary not exceeding three years, or by a fine not exceeding one thousand dollars, or both.”

[1] Defendant was informed against under this section, and charged with presenting false and fraudulent proofs in support of a claim for loss under a contract of insurance; and he now appeals from a judgment of conviction and from an order denying a new trial. He has failed to assign as error the denial of a new trial; therefore the questions before us are such as arise because of the appeal from the judgment.

[2-4] Appellant contends that the information herein-stated no public offense, and that the trial court was without jurisdiction. As the basis for a right to now present these contentions, he relies upon the following: That he objected to the introduction of any evidence, basing such objection upon the ground that the information did not state facts sufficient to constitute an offense under the laws of this state; that he' m'oved for a direction of verdict upon the same ground; and that he moved in arrest of judgment upon both of the above mentioned grounds. *277 Section 4771, R. C. 1919, provides the grounds upon which a demurrer to an information m¡ay be based; and section 4779 provides that, when the objections mentioned in section 4771 ■appear on the face of the information, they can only be taken by demurrer, except that the .objection to the jurisdiction of the court" over the subject of the information, or that it does not describe a public offense may be taken at the trial under a plea of “not guilty” and in arrest of judgment. It follows, therefore, that, even though there was no demurrer interposed to the information, yet if it appears on the face of such information that the same does not state facts sufficient to constitute a criminal offense, or if it appears on the face of such information that the trial court did not have jurisdiction over the subject of the information, there was reversible error in the rulings of the court. The sole basis of appellant’s contention is the failure of the information to specifically set forth the venue of the alleged offense. No claim is made but that, if the venue had been clearly stated, the information would have stated facts sufficient to constitute a public offense. Inasmuch as the place of the alleged offense in no manner constituted an element of such offense, it is apparent that there is no merit whatsoever to the claim that the information did not state facts constituting a public offense. If the information had expressly placed the venue of the offense in some county other than that where the information was filed, it would have then “appeared on the face of the information” that the trial court did not have jurisdiction of the cause. But there is*a wide distinction between an information which shows on its face that a court has not jurisdiction of the particular cause, and an information which fails to show that the court has jurisdiction of such cause — it does not appear on the face of this information that the trial court did not have jurisdiction. Except where the place of an alleged offense is a material element of the offense, an information setting forth such offense can, because of an omission to allege the -place thereof, be attacked by demurrer only; and so attacked because it' did not conform to the requirement of section 4725, R. C. 19x9, that an information should disclose, “that the offense charged was committed within the jurisdiction of the court, or though without the jurisdiction of the court, is triable” in that particular court. If such a demurrer had been interposed, *278 the defect could have been remedied by a new information supplying the omitted allegation; while those defects which, under section 4779, may be relied upon under a plea of “not guilty” and in arrest of judgment are defects which present facts fatal, the one, to a claim of guilt, the other, to the right of the court to exercise jurisdiction.

[5] The defendant took the witness stand and, by so doing, rendered himself subject to impeachment exactly as any other witness might. He testified, on direct examination, that he had been, by this court, twice disbarred from practicing as an attorney at law. Upon his opening statement to the jury, he had admitted that he had been twice disbarred. The state sought to prove, upon his cross-examination, some of the facts upon which the disbarments were based. The court announced that the records in those proceedings would be the best evidence.

The state then offered three opinions in evidence as a part of defendant’s cross-examination. Two of these opinions were in the proceedings wherein defendant was disbarred, the other in a proceeding wherein he sought reinstatement after the second disbarment. These opinions were objected to as immaterial and improper cross-examination, and one on the additional ground that it was incompetent. These objections were overruled.

[6] Conceding, but not deciding, that the fact that defendant had been disbarred, like the fact that a person has been convicted of a heinous offense, might be material as tending to impeach his credibility, yet the admission of such fact by defendant was all-sufficient proof thereof. The purpose of cross-examination is to test the truth of the direct examination. ..17 C. .J. 385. There is no pretense that these records would tend to disprove defendant’s admissions, and defendant’s admissions made upon his direct examination were of the same probative value to impeach his other testimony as though the fact of disbarment had been first shown on cross-examination. It follows that the objections interposed should have been sustained. ■ ■

[7] But, even though the defendant had not admitted that he had been disbarred, and the state desired to prove such fact, we know of no authority whatsoever that would support the receipt in evidence of the opinons of this court either as a part of defendant’s cross-examination or as a part of the state’s rebuttal. *279 The introduction in evidence of the judgments of this court would have been nonprejudicial in view of defendant’s admissions; but these opinions, containing as they do references to many wrongful acts of defendant and this court’s views thereon, could not but be most prejudicial to him — a consideration of same might lead the jury to conclude that defendant had long escaped deserved punishment, that he would not scruple at any act, .that it was therefore probable that he would willingly make a false report, anil that he should be convicted “upon general principles.” The only authority cited by the state in support of the receipt of this evidence is the opinion in Lansing v. Mich. Cent. Ry. Co., 143 Mich. 48 , 106 N. W. 692 , where the findings of fact in a disbarment proceeding were received to impeach the dis'b'arred attorney. But these were specific findings as to criminal conduct, and the court called attention to that fact. Without expressing any views as to the correctness of that decision, we need only suggest that finding's as to criminal acts are far different than an opinion of a court, even though such opinion is based on the findings of such acts. In the proceedings entitled “In re Egan,” much misconduct, not amounting to crimes, was discussed. These opinions will be found reported under the title “In re Egan,” in 22 S. D. 355, 117 N. W. 874 ; 37 S. D. 159, 157 N. W. 310 ; 38 S. D. 458, 161 N. W. 1003 .

[8,9] The state contends that defendant opened the door for this evidence by his opening statement and voluntary admissions. The state is in error — defendant merely rendered further proof of these disbarments absolutely immaterial. The state ..further insists that the abjections interposed by defendant to these opinions were not sufficient upon which to base an assignment in this court. It is true that this court has repeatedly held that a general objection, without specification of particulars wherein the evidence is subject to objection, is insufficient to require consideration, by the trial court. But this rule would have no application to an objection that the examination was improper cross-examination, nor to a situation, such as in this case, where the objections could not be obviated if specifically noted. Bowdle v. Jencks, 18 S. D. 80, 99 N. W. 98 .

[10] One of the particulars wherein it was claimed that the proof of loss presented by defendant was false was in relation to *280 the removal of a part of the property insured. The policy under which defendant claimed the right to be reimbursed for his loss through the destruction of the property insured, covered a certain two and a half story building situated upon certain described land. At the time that this policy was written, there was situated on this land a building answering the above description, which building was afterwards destroyed by fire. Attached to said building, at the time of the issuance of the policy, was an addition forming a material part of the entire structure, but so attached as to be capable of removal without injury to the main building. It appears undisputed that, very soon after this and numerous other policies were written covering this same property, defendant openly caused this addition to be torn down and that he íemoved the lumber for use at other places. In the report of loss upon which the information herein is based, he failed to make any report of the removal of such addition. In charging the jury upon this phase of the case, the court so charged the jury as to virtually direct a verdict against the defendant. We do not criticize such instruction, as we believe it was fully warranted under the undisputed evidence that had been received. But appellant assigns error in the refusal of the trial court to receive certain evidence offered by-him!.. He sought to prove that this addition was considered an extra hazard; that, with such addition removed, the rate of insurance upon the main building would be $1.50 per hundred, while with the addition standing, it would be $1.75 per hundred; and that there was an understanding, at the time of the issuance of the particular policy to which this proof of loss referred, and also when the other policies were issued, that, as a consideration for a reduction of the insurance rate from $1.75 to $1.50, he'was to, and he did agree to, remove such addition. After objections h> various 'questions asked by him had been sustained, appellant offered to prove by certain named witnesses, they being the agents of the companies issuing the policies upon the property in question, that, in his applications for insurance — which applications were oral — appellant advised the agents that this addition was foreign to the use to which he desired and intended to put the main building; that he desired the insurance solely upon the main building; that it was agreed and understood with each of said agents that, as a condition for *281 the giving to him of a reduced rate of insurance, he should write and give to each of said agents a receipt containing a covenant and agreement to remove the said addition; and that he did write such receipts and 'Hivor the. same to said agents. This offer was refused. We are of the opinion that, in its excluding such evidence, the court committed prejudicial error. The question at issue was the criminality of defendant’s act in making his report of loss and omitting to advise the insurance company that he had removed a material part of the property insured. -For the purpose of this 'decision, we must assume that, if allowed so to do, appellant could arid would have proven to the satisfaction of the jury all of these facts concerning which he offered proof. Certainly if, as a consideration for the insurance of the main building at a lower rate, appellant had agreed to remove the addition so that it would not remain a menace to the property really insured, there existed no reason whatsoever why he should report to said company the fact that such addition had been removed. If the addition had not been removed and had burned, appellant, under the facts sought to be proven, could not have claimed that the policies covéred such addition.

Other questions are presented upon this appeal, but they are of such a nature that we deem their determination unnecessary at this time in view of the result that must be announced herein.

The judgment appealed from is reversed, and the cause remanded for a new trial.