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ed the check to the credit of the bank, at the time he bought the plaintiff when the check was re bonds, as to the value thereof and ceived, and if they had done their as to the security, and was informed duty in this respect the plaintiff that the bonds and security were would have been merely a general A-1. There was evidence to the efcreditor of the bank and entitled to fect that at that time the security no preference right. The mere fact was in fact good. There was evithat the bank officers did not do dence, also, that there were imtheir duty gave him no greater provement liens against the properrights than he would have had, if ty, which is not now worth the they had performed their duty fully. amount of the bonds. The trial We are of the opinion, therefore, court, after hearing the evidence on that the trial court erred in estab this question, evidently concluded lishing this claim as a preference that there was no fraudulent repreclaim over general creditors.

sentation; that the expressions The second cause of action, upon made by the bank officers at the time which the plaintiff has appealed, plaintiff purchased these bonds were was one where one Hunter, who was in effect expressions of opinion at that time an officer of the bank, merely. The bank

-liability for executed certain bonds, and secured did not indorse the representations them by mortgage upon real estate. bonds. They were

of officer. Four of these bonds were purchased simply agents for the purpose of by the plaintiff. The bonds have collecting the interest and principal not been paid. Plaintiff is seeking and paying it to the bondholders. to hold the bank therefor. It is We are satisfied from the record claimed that the officers of the bank here that the trial court properly represented to the plaintiff at the

found upon this cause of action, and time they purchased these bonds the judgment of the trial court that they were A-1, secured by a

thereupon is affirmed. mortgage double the value of the

The defendant, being successful bonds, without any other liens there

in this court, is entitled to costs. on.

The evidence of the plaintiff upon this question was to the effect Holcomb, Ch. J., and Fullerton, that he asked the manager of the Tolman, and Bridges, JJ., concur.

ANNOTATION.

Right of owner of check which the drawee bank held for him at time it closed

its doors, to a preference.

The right to a preference in the bank a draft upon its correspondent, assets of an insolvent bank arises in which was subsequently dishonored. many situations and raises many “There is nothing,” says the court, “to questions. No case has been found in show that any tangible thing was rewhich a preference was sought under ceived by the bank upon these checks, the precise facts existing in the re

and consequently there is no such ported case (ZIMMERLI V. NORTHERN

fund in the hands of the receiver." BANK & T. Co. ante, 192). The two

The drawer of a draft which is paid following cases have, however, some

by the drawee by a check on the bank interest in this connection: In Sunder

to which the drawer sends it, and lin v. Mecosta County Sav. Bank (1898) 116 Mich. 281, 74 N. W. 478,

which remits to the drawer by means there was held to be no trust fund

of a New York draft, which is discreated to the amount of a check which honored upon presentation, is held not the insolvent bank had charged upon entitled to a preference in the funds its books against the drawer, and for of the insolvent bank in Anheuserwhich it had sent to the remitting Busch Brewing Asso. v. Clayton (1893)

was

6 C. C. A. 108, 13 U. S. App. 295, 56 Fed. 759. The court states that, in order to enforce a trust in favor of the drawer of the draft as to any money collected on the draft, it must be specifically traceable into the hands of the receiver; that accepting the drawee's check in payment of his debt, and charging the amount of it to his account by the bank, was but a shifting of its liability whereby it became debtor to the drawer and assumed the obligation to pay to it the amount of

the check less exchange; that there was nothing to indicate that this amount

separated and kept separate from the bank's own money, but, on the contrary, it was conceded that it was undistinguishable from the mass of the bank's own money, and could not be traced to and identified in the hands of the receiver; that, this being so, the drawer of the draft has

better equity than the other creditors of the bank, and is entitled to no priority over them. W. A. E.

no

B. A. HELSEY, Appt.,

V.
STATE OF OKLAHOMA.

Oklahoma Criminal Court of Appeals November 16, 1920.

(- Okla. Crim. Rep. –, 193 Pac. 50.) False pretenses - obtaining money on orders not to be delivered.

1. One cannot be convicted for obtaining money by false pretenses, by obtaining money on orders for goods which he does not intend to deliver.

[See note on this question beginning on page 199.] elements of offense,

existing fact or past event, relied upon 2. In order to sustain the convic by the party defrauded as true, and tion for obtaining money under false

such false representation must be the

motive cause which induced the ownpretenses, it must be shown that there

er to part with his property. a false representation as to an [See 11 R. C. L. 832.] Headnote 2 by ARMSTRONG, J.

was

APPEAL by defendant from a judgment of the District Court for Ottawa County (Davis, J.) convicting him of obtaining money by false pretenses. Reversed.

The facts are stated in the opinion of the court.
Mr. Clyde Morsey, for appellant: § 415; State v. Eudaly, - Mo. – 188

In order to constitute the crime of S. W. 110; Hearst v. State, 39 Tex. obtaining money or property by means Crim. Rep. 196, 45 S. W. 573; State of false pretenses under the statutes, v. Tanner, 22 N. M. 493, L.R.A.1917E, it is necessary for the state to prove 849, 164 Pac. 821; People v. Cerrate, a false representation as to an exist 99 Misc. 256, 165 N. Y. Supp. 694; ing fact or past event, reliance on that Re Snyder, 17 Kan. 542, 2 Am. Crim. representation as true, and that it was Rep. 228. the moving cause which induced the When there is no proof produced to owner to part with his property. sustain the charge, it is the duty of

Taylor v. Territory, 2 Okla. Crim. the court to advise the jury to return Rep. 1, 99 Pac. 628; 19 Cyc. 393; Jones a verdict in favor of the accused. v. State, 9 Okla. Crim. Rep. 621, 132 Cummins v. State, 6 Okla. Crim. Pac. 914; 2 Whart. Crim. Law, 11th ed. Rep. 180, 117 Pac. 1099; Nash v. State, SS 1397, 1437; State v. DeLay, 93 Mo. 8 Okla. Crim. Rep. 1, 126 Pac. 260; 98, 5 S. W. 607; 2 Bishop, Crim. Law, High v. State, 2 Okla. Crim. Rep. 161,

28 L.R.A.(N.S.) 162, 101 Pac. 115; business of said Menke Grocery Pilgrim v. State, 3 Okla. Crim. Rep. Company, and there saw officials of 49, 104 Pac. 383; State v. McDonald,

said company, stated to them that 10 Okla. Crim. Rep. 413, 137 Pac. 362.

he had heretofore been a salesman Messrs. S. P. Freeling, Attorney

and desired to sell groceries for said General, and R. McMillan, Assistant Attorney General, for the State.

company, and in consequence was

furnished by said company blank Armstrong, J., delivered the opin

orders on said company for goods, of the court:

samples of the goods he was to sell, The plaintiff in error, B. A. Hel

the prices he was to sell them for, sey, hereinafter called defendant,

and furnished a book entitled was by information charged with

“Menke's Salesmen's Companion," the offense of obtaining money from which in great detail instructed how Lloyd Henry by false pretenses, con a salesman was to conduct business victed, and sentenced to imprison- in taking orders, described the ment in the state penitentiary at goods to be sold, and stated therein McAlester for a term of three years. that the articles in "Menke's SalesTo reverse the judgment rendered,

men's Companion are for the saleshe prosecutes this appeal.

man who sells from our house, and The material uncontradicted evi

should any party or parties, firm or dence is as follows: That the de- corporation, be found infringing fendant went to the home of Lloyd such or copying any of these arHenry, which is situated 4 miles ticles, they will be prosecuted,” and from Miami, Ottawa county, stated promised defendant to fill all reg. to him that he (defendant) was ular orders that he might send to representing the Menke Grocery them, Menke Grocery Company. It Company of Kansas City, exhibited

was also testified by the secretary to him samples of groceries, stated of the company that the company the prices of same, and induced the

would have filled any orders sent in said Henry to give him, the defend- by the defendant that were regular, ant, a check for groceries to be

but that defendant was not the shipped to the said Henry by the

agent of and the company not resaid company, and which he prom- sponsible for his acts. It was also ised would reach the said Henry in

shown by the evidence that, after five or six days, for which said gro the defendant had the transaction ceries said Henry gave the defend- herein stated with the said Henry, ant a check on the bank of Miami for

he was arrested in Texas, and, while $4.95, which defendant cashed, and in the police station at Ft. Worth, applied the money so received to his stated that he was guilty of “jippown use, and did not send the order ing" the farmers out of their money, for the said groceries to said com and he was going to plead guilty. pany to be filled as he stated he

The defendant demurred to the would. That the said Henry bought evidence upon the ground that it the said groceries “because the

was insufficient to sustain convicprices were reasonable, and he be- tion for obtaining money by false lieved the company responsible.” pretenses. The court overruled the There was also undenied evidence demurrer, and the defendant exceptthat the defendant, about the same

ed. Timely motion for a new trial time, had transactions with several

was made by the defendant, which other persons identical with the

was overruled, and exceptions saved. transaction had with said Henry, The defendant, in his brief, urges and that in each instance he appro only one error: “That the evidence priated to his own use the cash or is insufficient to sustain the convicchecks so received from said several tion of the defendant, and that the transactions. That defendant, prior court committed reversible error in to having said transactions with refusing to instruct the jury to acsaid Henry, went to the place of quit the defendant."

offense.

- Okla. Crim. Rep. , 193 Pac. 50.) It is earnestly insisted on the It has been repeatedly held by part of the state that the evidence this court that there must be a false shows that the defendant was not representation as to an existing fact authorized to represent the Menke or past event prov

False pretenses Grocery Company in making said en in order to sus- -elements of transaction with Henry, was not tain a conviction for its agent, and that, when defend- obtaining money under false preant stated to Henry that he was tenses. Taylor v. Territory, 2 Okla. representing the said company, he Crim. Rep. 1, 99 Pac. 628; Jones v. falsely represented as to an exist- State, 9 Okla. Crim. Rep. 621, 132 ing fact upon which Henry relied. Pac. 914; 2 Whart. Crim. Law, 11th With this contention we cannot ed. $$ 1397–1437. agree. The evidence shows that the The doctrine that the misrepredefendant had authority to represent sentation must be of a past event or said company as a special agent, to fact having present existence, and make said deal with Henry in the not a misrepresentation of somemanner in which he did. The evi thing to take place in the future, dence shows that the company had finds support in the following auauthorized the said defendant to thorities: State v. De Lay, 93 Mo. take orders, and had furnished him 98, 5 S. W. 607; 2 Bishop, Crim. with blank order forms, samples of Law, § and authorities there goods he was to sell, the prices cited; Hurst v. State, 39 Tex, Crim. thereof, and directed him to follow Rep. 196, 45 S. W. 573; State v. the instructions contained in Tanner, 22 N. M. 493, L.R.A.1917E, Menke's Salesmen's Companion, a 849, 164 Pac. 821; People v. Cercopy of which was delivered to the rato, 99 Misc. 256, 165 N. Y. Supp. defendant at the time.

694; Re Snyder, 17 Kan. 542, 2 Am. It is true that the secretary of the Crim. Rep. 228. company testified that the defendant We are of the opinion that the was not an agent of said company, evidence germane to the issue inand the company was not respon volved in this appeal is entirely sible for his acts, but this testimony insufficient to show beyond a readoes not in any way tend to show sonable doubt that the defendant that the defendant was not author was guilty of the ized to represent said company in offense of which he

-obtaining making the transaction he did with

was convicted, and orders not to be Henry.

hence the court That the defendant, in making committed reversible error in refusthe transaction with Henry herein- ing to advise the jury to acquit the before set out, was guilty of prac- defendant, because, if the evidence tising a confidence game upon proves the defendant guilty of an Henry in obtaining said check for

offense, it is one materially different $4.95, is certainly true; but, after a from that charged and of which he most careful consideration of all the

was convicted. evidence germane to the issue in

The judgment of the trial court is volved, we are unable to see that, in

reversed, and the case remanded. perpetrating said fraud upon Henry, he did so by falsely representing Doyle, P. J., and Matson, J., conas to any existing fact or past event. cur.

money on

delivered.

ANNOTATION.

Obtaining money for goods not intended to be delivered as false pretense.

As to false representations in business transaction as within statute relating to "confidence game," see

annotation following People v. Santow, 9 A.L.R. 1524.

The holding in the reported case

(HELSEY V. STATE, ante, 197) to the sewing machine was a false represeneffect that one cannot be convicted for tation, and that the machine was never, obtaining money by false pretenses, by in fact, delivered to her, but this false obtaining money on orders for goods representation was solely as to an which he does not intend to deliver, is event to happen at an uncertain time an application of the general rule in in the future, and was therefore a relation to false pretenses, that a con mere promise of future performance, viction cannot be based on a misrepre unconnected with a false statement as sentation of something to take place in to a past or existing fact; for, as the future. And in State v. Haines already said, there was no false state(1885) 23 S. C. 170, where defendant ment or representation made by him obtained advances from a factor up as to his right to sell her the picture on representations that he was then and frame, or as to its value. We are planting cotton, and that when the of opinion, therefore, that the facts crop was harvested he would ship the alleged in the indictment do not bring same to the factor, it was held that the the acts of appellee within the statute false promise to deliver goods in the denouncing false pretenses." But future, alone, involved no criminal con compare Rex v. Provost (1918) 29 Can. sequences, and that there could be no Crim. Cas. 247, wherein the owner of conviction of false pretenses unless a motor car told defendant that he there was a false representation as to would sell it for a certain price, and an existing fact, such as whether or the defendant, representing that he not he was, as a matter of fact, plant had a right to sell the car as his own, ing cotton at the time. See this case although it was still in the possession as quoted, infra. And the conclusion of the owner, obtained money in relireached in the reported case (HELSEY ance upon the representation that the v. STATE) to the effect that one cannot accused could deliver the automobile be convicted for obtaining money by to the prosecutor, and in which the false pretenses, by obtaining money court applied the rule that if the on orders for goods not to be delivered, delivery of the article obtained was finds support in the somewhat analo the object and aim of the false pregous case of Com. v. Tidwell (1915) tense, there is a sufficient direct con162 Ky. 114, 172 S. W. 102, wherein it nection between the pretense and the was held that an agent who repre obtaining, even though what sented that if the prosecuting witness immediately obtained by the false would purchase a picture and frame pretense was not the delivery, but from him, his principal would deliver a merely the contract, and held that the sewing machine to the purchaser, was defendant was properly convicted of not guilty of false pretenses, there obtaining money by false pretenses being no allegations of misrepresenta under Quebec Crim. Code, $ 405. The tions as to existing facts, but merely court said that the prosecutor gave his the false promise to perform an act in money in the belief that the accused the future. The court said: “It is not could deliver him the automobile, alleged in the indictment that the otherwise he would neither have representations as to the existing facts signed the contract nor given his were false; that is, that there were money, and, consequently, that the any false representations made by accused got his money “under false appellee as to the character or value pretenses by means of a trick." of the picture or frame, or

as to Without departing from the general appellee's ownership thereof, or his rule that to convict there must be a right to sell same to Mrs. Champion; false representation as to an existing nor is it alleged in the indictment that fact or past event, and that a mere Mrs. Champion was not a person of representation of something to take ordinary intelligence and prudence. place in the future is not sufficient, it

The indictment, it is true, has been held under some facts that a alleges that the statement of appellee

statement of appellee conviction may be had, although the that Mrs. Champion would receive the promise on its face in a sense relates

was

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