Opinion
No. 27275.
June 11, 1928.
1. FALSE PRETENSES. Attempt to commit false pretenses is indictable offense ( Hemingway's Code 1927, sections 813, 936).
An attempt to commit false pretenses is an indictable offense at common law as well as under Code 1906, sections 1049, 1166 (Hemingway's Code 1927, sections 813, 936).
2. FALSE PRETENSES. Indictment charging attempt to commit false pretenses is sufficient, if it charges attempt and then accurately describes false pretenses ( Hemingway's Code 1927, sections 813, 936).
Indictment charging attempt to commit false pretenses, in violation of Code 1906, sections 1049, 1166 (Hemingway's Code 1927, sections 813, 936), is sufficient, if it first charges the attempt and then accurately describes false pretenses.
3. FALSE PRETENSES. Allegation that alleged false account by contractor was prepared, signed, and approved, and filed with board of supervisors, charged overt act in alleged attempt to obtain money by false pretenses ( Hemingway's Code 1927, sections 813, 936).
Allegation that alleged false account by road contractor was stated by contractor, O.K.'d by member of board of supervisors, and was filed with board of supervisors at instance of defendants, and that account contained false representations that certain gravel had been spread upon roads, when in truth they then and there knew that it had not been so spread, charged an overt act in alleged attempt to obtain money under false pretenses, in violation of Code 1906, sections 1049, 1166 (Hemingway's Code 1927, sections 813, 936).
4. FALSE PRETENSES. Allegation that defendants "would" feloniously obtain money, in indictment charging attempt to obtain money by false pretenses, held not prejudicial error ( Hemingway's Code 1927, sections 813, 936).
In indictment charging road contractor and member of board of supervisors with attempt to obtain money by false pretenses, in violation of Code 1906, sections 1049, 1166 (Hemingway's Code 1927, sections 813, 936), use of word "would," in allegation, "defendants would then and there feloniously obtain sum of ____ from P. County," instead of word "did," held not prejudicial error.
5. FALSE PRETENSES. Indictment charging attempt to obtain money by false pretenses held to charge member of board of supervisors as well as road contractor with false pretenses ( Hemingway's Code 1927, sections 813, 936).
Indictment charging that road contractor and member of board of supervisors falsely represented to county that contractor had hauled and spread gravel on roads, and made false representations, and jointly endeavored to obtain a certain sum from P. county in violation of Code 1906, sections 1049, 1166 (Hemingway's Code 1927, sections 813, 936), held to charge member of board of supervisors, as well as contractor, with crime of false pretenses, since it was charged that they acted together, and whatever constituted charges against contractor likewise constituted charges against the other.
6. FALSE PRETENSES. Indictment charging attempt to obtain money by false pretenses by virtue of contract with county held fatally defective because not setting forth contract ( Hemingway's Code 1927, sections 813, 936, 1247).
Indictment charging road contractor and member of board of supervisors with attempt to obtain money by false pretenses under contract with county in violation of Code 1906, sections 1049, 1166 (Hemingway's Code 1927, sections 813, 936), held fatally defective because not setting forth contract in haec verba or at least the purport and substance of it, as required by Code 1906, section 1430 (Hemingway's Code 1927, section 1247).
APPEAL from circuit court of Pike county; HON.E.J. SIMMONS, Judge.
J.A. Lauderdale, Assistant Attorney-General, for the state.
This prosecution is brought under and by virtue of section 936, Hem. Code, 1927, and sec. 813 of said Code. An attempt to commit false pretenses is an indictable offense at common law. Wharton, Criminal Law, sec. 212 et seq.; Bishop, Directions and Forms (2 Ed.), par. 434.
The allegations of an indictment to charge false pretenses. See State v. Freeman, 103 Miss. 764; Odom v. State, 130 Miss. 643; State v. Grady, 147 Miss. 446, 111 So. 148.
Necessary allegations to charge an attempt to commit false pretenses. See State v. Phillips (Mont.), 92 P. 299; State v. Riddell, 74 P. 447, 25 C.J. 637, sec. 73, par. 4.
In State v. Burton, 145 Miss. 821, 111 So. 300, this court held that an indictment which charged the defendant with gathering wood and carrying it to a distillery was sufficient to charge the defendant with an attempt to manufacture liquor. Carrying the wood to the still was an overt act toward the commission of the crime. In Stokes v. State, 92 Miss. 415, 21 L.R.A. (N.S.) 898, this court held that whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt. In Miller v. State, 130 Miss. 730, this court held that in order to constitute an attempt to commit an offense, two elements are necessary; first, the intent to commit; second, an overt act towards its commission. Cunningham v. State, 49 Miss. 685; Powell v. State, 128 Miss. 107, 90 So. 625.
Counsel for appellee insist that under the law it was necessary to make the contract between the defendant, Fitzgerald, and Pike county a part of the indictment. This contract did not constitute the false token or writing. It is true that by virtue of this contract the alleged false pretenses were made possible. However, the false pretenses were not made on the contract, but on the copy of the writing made a part of the indictment. That is, the statement of the account, under the contract. It was no more necessary to make this contract a part of the indictment than it was necessary to make the record show the election and qualifications of Reeves as a member of the board of supervisors. I am sure that no one will contend that this record was necessary.
The indictment is a joint indictment. Each and every allegation made against the defendant Fitzgerald is also made against the defendant, Reeves. Every person aiding or assisting in the commission of a crime is guilty as principal and the allegations of the indictment are certainly sufficient to charge Reeves with the crime. The indictment alleges that if the crime had been committed that they, the defendants, would have obtained of and from Pike county the said sum of two thousand, four hundred thirty-six dollars and twenty-eight cents. This is certainly a sufficient allegation that Reeves would have profited by the commission of the crime. Price Price, for appellees.
The indictment charges that the defendants unlawfully and feloniously presented a bill to the board of supervisors, with the intent to obtain two thousand, four hundred thirty-six dollars and twenty-eight cents of the county's money. In Dill v. State (Miss.), 115 So. 202, the defendant was prosecuted for attempting to knowingly and feloniously manufacture intoxicating liquors; under the statute it is necessary to allege and prove a sufficient overt act towards the commission of the offense. A mere intention to commit a crime is not punishable, and the court held, "while it might with reason be argued with the statement of the appellant, that he would have had a fire within fifteen minutes, if he hadn't been arrested, yet this statement was insufficient to warrant the jury in finding that he prepared the mash and assembled the still with the intent to manufacture intoxicating liquors."
We say that the mere presentation of a bill to the board of supervisors for allowance on contract for working the public roads, for a certain quantity of gravel, is not a sufficient overt act upon which to base an attempt to obtain money from the county upon a charge of attempting the crime of false pretenses. A mere preparation to do an act is not an attempt at false pretenses. Miller v. State, 130 Miss. 730; Montgomery v. State, 65 So. 572; People v. Young, 47 L.R.A. 108; Bracy v. State, 64 Miss. 26; Powell v. State, 128 Miss. 107, 90 So. 625.
The indictment states that it is founded upon a contract of Fitzgerald with the board of supervisors. But see Roberts v. State, 77 Miss. 110; Johnson v. State, Walker, 392; Riggs v. State, 26 Miss. 51; Williams v. State, 42 Miss. 330.
In Cook v. State, 72 Miss. 517, the court held: "That an omission in an indictment for felony, going to the very essence of the offense, renders it void and subject to attack at any time." If it be admitted in this case that we may possibly by intendment, read into the indictment that the defendant did then and there wilfully and unlawfully attempt to obtain money from the county, or as said by the court in the Cook case, "guessing along the same line of offenses, read into the empty places in the indictment, the words "did then and there attempt to obtain" or if we may interpolate that "the defendant did conspire and combine by attempting to defraud the county;" we usurp the functions and powers of the grand jury, and deprive the defendants of many rights, guaranteed to them under the Constitution. Jesse v. State, 28 Miss. 100; Buchanan v. State, 97 Miss. 839, 53 So. 399; Taylor v. State, 74 Miss. 544, 21 So. 129; Hall v. State, 91 Miss. 216, 44 So. 810, 826; McCearley v. State, 52 So. 796; Willis v. State, 113 Miss. 838, 74 So. 677.
The state appeals from the judgment of the circuit court of Pike county sustaining a demurrer to an indictment against Alex Fitzgerald, a contractor, and H.E. Reeves, a member of the board of supervisors, on a charge of attempting to obtain money under and by virtue of false pretenses.
As the indictment is rather lengthy, we shall not attempt to set it out in haec verba, but shall only quote from it such parts as we deem necessary to decide the several points presented.
The indictment, in our opinion, charged that Fitzgerald, a public road contractor, and Reeves, a member of the board of supervisors, falsely represented to the county that Fitzgerald had hauled and spread gravel on the public roads of a certain district, and that they made false representations and jointly endeavored and attempted to obtain from Pike county two thousand, four hundred thirty-six dollars and twenty-eight cents. The indictment alleged that the overt act toward the commission of the crime was the preparation, signing, and approving of the account for said money, and filing the same with the board of supervisors, falsely stating in the account the kind of gravel hauled by said defendants — in common parlance, "padding the account" — all of which representations were known to be false, that Fitzgerald did not haul and spread the gravel, as represented in the account, and that they were intercepted, and failed in the commission of said offense of false pretenses.
The indictment is drawn under section 1166, Code of 1906 (section 936, Hemingway's 1927 Code), which reads as follows:
"Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, upon conviction thereof, shall be punished by imprisonment in the penitentiary not exceeding three years, or in the county jail not exceeding one year, and by fine not exceeding three times the value of the money, property, or thing obtained."
And likewise an attempt to commit a crime is defined in section 1049, Code of 1906 (section 813, Hemingway's 1927 Code), as follows:
"Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no provision is made by law for the punishment of such offense, be punished as follows," etc.
An attempt to commit false pretenses is an indictable offense at common law, as well as under the statutes quoted supra. See Wharton Criminal Law, vol. 1, section 212; Bishop, Directions and Forms (2 Ed.), par. 434. And the latter is authority for the rule that the indictment is sufficient, if it first charges the attempt, and then accurately describes the false pretenses.
In the case of State v. Freeman, 103 Miss. 764, text page 766, 60 So. 774, 775, the supreme court of this state held, as a requisite for the indictment of false pretenses, as follows:
"In an indictment for false pretenses, it is necessary to charge that the pretenses were false; that the defendant knew them to be false; and he got from another certain money or other valuable things; and that the pretenses were the moving cause whereby the money or things were obtained."
With these general observations, we shall now consider the demurrer. The demurrer attacks the indictment, and alleges that the account set forth in the indictment and alleged by the indictment to have been made out, approved, and filed with the board of supervisors for the purpose of having same allowed, did not constitute an overt act, and counsel cites the case of Dill v. State (Miss.), 115 So. 203, wherein it was shown, on an indictment for an attempt to manufacture intoxicating liquor, as the overt act, that the defendant had prepared "a compound called mash," and assembled a still in which to distill said mash (a still is necessary in the manufacture of intoxicating liquor); that there was no one present at the still at the time of the arrest of appellant, and that the still was not then quite ready to operate; that the appellant stopped his car about two hundred feet from the still, and came down a trail which led from the road to the still, and, when he had reached a point about fifteen or twenty feet from the still, he was arrested; that another man drove up, but drove away; that the defendant then and there stated that he would have had a fire under the still in fifteen minutes. In that case, we held that the state's evidence showed an intention to commit crime, but that no overt act was done by the defendant, and that he could not be convicted on a mere intention, unsupported by an act in furtherance of that intention. In the Dill case, the defendant was convicted of preparing mash and assembling a still with intent to manufacture liquor, while the proof showed that he was only walking toward the still, that he was within ten or fifteen feet of it, in view of it, and that he declared he would have operated the still.
Counsel contend that the mere presentation of a bill to the board of supervisors for allowance on a contract for working the public road, for a certain quantity of gravel, is not a sufficient overt act upon which to base an attempt to obtain money from the county upon a charge of attempting the crime of false pretenses, and cites Miller v. State, 130 Miss. 730, 95 So. 83, wherein "attempt" is defined. It is there stated that some direct overt act is necessary toward the commission of a crime. Counsel also cites Montgomery v. State, 107 Miss. 518, 65 So. 572, wherein this court held that an indictment must be definite and unambiguous; that the physical acts which constitute the overt act must be set out in the indictment, so that the court may see whether or not the law has been violated.
The indictment alleges that the account was stated by Fitzgerald, "O.K.'d" by a member of the board of supervisors, and was filed at the instance of the defendants; that the account contained false representations that certain gravel had been spread upon the roads, when, in truth, they then and there knew it had not been so spread. Under this allegation of the indictment, the defendants had, in our judgment, done all they could do toward procuring the allowance of the account. The only thing they failed to do was to receive the warrant from the board of supervisors. The account was presented as a true one to the board of supervisors, who, if they had acted favorably thereon, would have parted with the money. The attempt was complete, because the defendants had done all things necessary to procure the allowance of the account; or, if not all, they had taken sufficient steps to show clearly their intention to collect the money from the county on the account, by filing the account with the board of supervisors. This was the overt act, and comes within the purview of the requirements of section 813, Code of 1927 (section 1049, Code of 1906), cited supra.
2. It is alleged by the demurrer and urged in the brief, that the use of the word "would" where the indictment charges that "the defendants would then and there feloniously obtain the sum of two thousand, four hundred thirty-six dollars and twenty-eight cents from Pike county," is erroneous; that the word "did" should have been used instead. The words, "did, then and there," occur frequently in the indictment, and, while the facts of the indictment might be more succinctly stated, there does not seem to be any omission, so far as the word "did" is concerned, which would prejudice the rights of the defendant, or cause him not to be acquainted with the nature of the cause of action against him in this respect.
3. It is insisted that the indictment does not charge the defendant Reeves with the crime of false pretenses. We think it is clearly charged that Reeves and Fitzgerald acted together, and that whatever constitutes the charges against Fitzgerald, in the commission of the crime, likewise constitutes the charges jointly against Reeves. Consequently we see no merit in this contention.
It is insisted that reference is made to a contract for the spreading of gravel on specific roads, and that the purport of the contract is not set out so as to inform the defendants as to how the contract applies to the account presented in the case, that either the contract should have been set forth in haec verba, or that the purport of the contract should have been set out, as required or permitted by the statute.
Let it be remembered that this indictment charges that this road contractor and supervisor undertook to secure money from the county by filing a "padded," false account, which they knew to be false, with the board of supervisors for an allowance, and the only statement with reference to the contract is in this language:
"Alex Fitzgerald and H.E. Reeves, in said county, on or about the 5th day of March, 1923, did, in Pike county, Mississippi, then and there, the said Alex Fitzgerald being a public road contractor to work the public roads of the third supervisors district of Pike county, Mississippi, under a contract with the board of supervisors of said county, and the said H.E. Reeves, being, then and there, the duly elected and acting supervisor from the third district of Pike county, Mississippi, they the defendants," etc.
We agree with counsel for appellants that the effort to obtain this money was by virtue of this contract, and it was a material part of the indictment that the defendant be informed as to when the contract was executed and put in force, and the terms in a general way of the contract; but the mere statement that there was a contract is wholly insufficient to put the defendants upon notice of the crime charged. It was by virtue of the contract referred to that the defendants are charged with attempting to obtain money under false pretenses. As we see it, without the contract there would have been no overt act to commit the crime. The indictment is fatally defective, in that it does not set forth the contract in haec verba, or, at least, the purport and substance of it, as required by the statute.
Section 1430, Code of 1906 (section 1247, Hemingway's 1927 Code), is as follows:
"Whenever it shall be necessary to make an averment in an indictment as to any instrument, whether the same consist wholly or in part of writing, print, figures, or characters, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or facsimile of the whole or any part thereof."
It will be noted that there was no effort to set out the purport of the contract, and the defendant and the court are not advised as to how the contract is applicable, save by guess, which is not permissible. In the case of Roberts v. State, 72 Miss. 110, 16 So. 233, this court said that the above-quoted section did not dispense with such certainty of description as will clearly identify the offense.
We think the demurrer to the indictment was properly sustained because of the failure to set out the nature, character, and purport of the contract. The contract was a part of the basis of the indictment, and the failure to more accurately set forth its purport is fatal to it.
We do not see any merit in any of the other contentions as to the invalidity of the indictment.
Affirmed.