State v. Kiefer

Ladd, J.

1' andICinfotmamenV: fStaf ownership" of fafieerpretenses. I. The accused is charged in the indictment with having'obtained, by false pretenses, a promissory note of $700, bearing date February 15, 1913, and due six months after date, executed by D. B. Stoner to the defendant, and $700 in money. The ownership of this property is not alleged save by implication; and, as an indictment cannot be aided by intendment (State v. Ashpole, 127 Iowa 680 ), and ownership must be averred (State v. Clark, 141 Iowa 297 ), the county attorney filed an amendment adding the following:

“That the money and notes delivered to the said defendant, Adam Kiefer, on or about February 28, 1913, as therein stated, was, at the time of the delivery by said D. B. Stoner to said defendant, Adam Kiefer, the property of said D. B. Stoner. ’ ’

This was essential to the full description or identification of the offense but not to the substance thereof. The crime would be none the less such were the owner not alleged or ascertained- The purpose of such an allegation is to point out the precise offense, in order (1) that the accused may be advised of the particular charge he must be prepared to meet and (2) that he may thereafter be in a situation to plead the judgment of conviction or acquittal therein in bar to any subsequent prosecution. Sec. 5289, Code Supplement, 1913, expressly authorizes the county attorney to amend the indictment so as to correct errors “in the allegations concerning the ownership of property that may be described in the indictment”,- and as such an amendment relates to matter of form and not of substance, the court did not ,err in permitting the county attorney to supply the omission by averring in an amendment to the indictment, that D. B. Stoner was owner of the property. See State v. Mullen, 151 Iowa 392 , and State v. Foxton, 166 Iowa 181 .

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2. Criminal law : trial: notice of additional witnesses: upon whom and where served.

*308 II. Notice that evidence would be introduced of witnesses *309 other than those whose names were endorsed on the back of the indictment was served on the defendant in Black Hawk county, and counsel contend that this was not in compliance with See. 5373, Code Supp., 1913, for that, as the indictment was pending in Buchanan county in his absence, notice must have been served on his attorneys. That section provides that:

“The county attorney, in offering the evidence in support of the indictment in the order prescribed, in the last section, shall not be permitted to introduce any witness who was not examined before a committing magistrate or the grand jury, and the minutes of whose testimony were not presented with the indictment to the court, unless he shall have given to the defendant or his attorney of record, if defendant be not found in the county, a notice in writing, stating the name, place of residence, and occupation of such witness, and the substance of what he expects to prove by him on the trial, at least four days before the commencement of such trial. ’ ’

The limitation applies to the attorney of record only; that is, he may be served only when defendant cannot be found in the county, but the defendant may be served anywhere. In order to hold as contended, it would be necessary to read into the statute, after the word “defendant”, the phrase ‘ ‘ when found in the county ’ This is not to be implied from the language employed, as the court rightly held in ruling that the service of the notice was sufficient.

3. False pretenses : allegation and proof: misdescription of property: variance. III. The note alleged to have been obtained by false pretenses was described in the indictment as having been given by D. B. Stoner. The note introduced in evidence, over objection, bore the name of Stella Stoner also as maker, and on this ground, the defendant argues that there was a fatal variance between the allegations and the proof. If the variance is to be regarded as material, the conclusion necessarily follows that it was fatal. On the other *310 hand, if the description is sufficiently full and definite to identify the transaction and inform the accused of the precise charge against him, a mere technical inaccuracy will not be permitted to defeat the prosecution. People v. Reed (Cal.), 11 Pac. 676 , is directly in point in declaring that such a variance is fatal, the court saying:

“The indictment or information should set out with reasonable certainty the pretenses and fraudulent representations by which the party injured was defrauded of his property, and such specific description of the property obtained as will identify it, and give to the defendant notice of what he is required to meet. And between the allegations thus made and the proofs there should be such a correspondence that, when the latter are adduced, it can be said that the former are substantially established. In the present cáse, there was a wide departure from the necessary correspondence between the allegata and probata. The proofs established another offense, separate and distinct from that charged. The property obtained by the fraudulent practices of defendant was different from that described in the indictment. This difference was so significant that in a civil action it would have been fatal to a recovery.”

In Copeland v. State (Ala.), 12 So. 181 , a contract was alleged to have been made use of to defraud, and to háve been signed by J. D. Copeland, when it in fact was made by John D. Copeland and W. F. Copeland, and this was adjudged a fatal variance.

The principle was involved in State v. Cadwell, 79 Iowa 473 . There the indictment charged that the accused had obtained property by falsely representing that he had money on deposit with a bank and drawing a draft thereon in favor of the person alleged to have been defrauded; but the proof showed that the draft was made by the “Boyer Yalley Bank,” a partnership composed of the accused and another, that he drew the draft in its name, and that any deposit it had was *311 in the name of the Boyer Valley Bank and not in that of the accused. The variance was held to defeat conviction.

A different conclusion was reached in Headly v. State (Ala.), 17 So. 714 , but owing to a statute of that state, A promissory note such as alleged is not identical with that adduced in evidence, and this being so, there was a material variance between the property alleged to have been obtained' and that proven, and the court erred in submitting the issue as to whether the promissory note in question was obtained by false pretenses. Any prejudice was obviated, however, by the special findings of the jury that the note was given to defendant for the purpose of taking up another and was used for that purpose. ■ ■

4. FAX.SE PEE-tenses : essential prmcifngS merealn" “credit.” IV. The remaining inquiry relates to the money of which defendant is accused of having defrauded Stoner. It appears that Stoner and wife executed two notes of $700 each, March 16, 1912, payable six months after date to the ’ ■ „ defendant Kiefer. On December 31st follow- * Stoner made a deposit of $692.22 with Kiefer’s Savings Bank, which increased the balance in his favor to more than enough to satisfy one of these notes and the interest on both. On February 15, 1913, Stoner and his wife went to the bank and there arranged with defendant to pay the one note- from the bank balance and renew the other. Concerning this, Stoner testified:

“We paid one note and gave a renewal of the other.” ■ Q. ‘ ‘ How did you pay that ? ” A. “ Well, this money that we left there. ” Q. “ This money that was to your credit in the bank ? ’ ’ A. “Yes, sir.” Q. “And gave a renewal note for the other note?” A. “Yes, sir. . .. . There was quite a number in the bank and seemed to be very busy and .he told me he would look up the papers and get the old papers cancelled and the new one of record and then he would send me the papers. The old papers were also secured by a chattel mortgage. He was to have that mortgage cancelled. He said he would look up the *312 notes. He did not know just where to put his hands on them. He said he would look them up and send them to me when he got the old papers cancelled and the new ones on record. ’ ’

Defendant, who was an officer of the bank, charged the $700 note off Stoner’s account, but did not return or surrender it to Stoner, as it ,had been sold to a bank at Independence; and shortly afterwards, Kiefer’s bank went into the hands of a receiver and Kiefer was adjudged a bankrupt. The above amount was never taken from the bank by Kiefer, nor was anything done with reference thereto by him, except making the arrangement and the entry on the bank books above mentioned. Neither the defendant nor his bank acquired title to or possession of a dollar by the transaction. It was purely a'matter of bookkeeping, in which defendant obtained the entry of a credit for the bank in Stoner’s account; or, to put it another way, induced Stoner to allow an entry of a charge against his account. In the early case of State v. Moore, 15 Iowa 412 , this court held that ‘ ‘ To obtain ah endorsement or credit upon a promissory note is not obtaining property, money or goods, within the meaning of the statute. No harm is done by such an act, for in the language of Mr. Bishop (Cr. Law 2, § 391) ‘the credit is a mere intangible thing of no value.’ ” Reg. v. Eagleton, 1 Jur. (N. S.) 940, 944, was decided likewise. In Jamison v. State, 37 Ark. 445 (40 Am. R. 103), the accused owed Thomson, who was indebted to Mattingley, and it was held that inducing the latter to credit Thomson the amount owing him did not constitute the offense charged of having obtained money. The same conclusion was reached where the receipt 'of a pre-existing account was procured to be executed. Moore v. Commonwealth, 8 Pa. St. 260. See for review of the authorities, Bates v. State, (Wis.) 103 N. W. 251 .

The trouble with the' case at bar is that neither title to nor possession of the money to be paid on the note passed to defendant or his bank, and therefore nothing was acquired *313 by defendant, even though he may have represented that he or the bank still held the note. The defendant should have been acquitted. — Reversed.

Deemer, C. J., Gaynor and Salinger. JJ., concur.