People v. Jordan

California Supreme Court Oct 8, 1884 No. No. 10,905Published

Before: Morrison

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Holding. The court held that an indictment for false pretenses is sufficient if it alleges that the defendant knowingly made false representations of fact with the intent to defraud, which induced the victim to part with property. Additionally, the court held that a court record cannot be impeached by affidavits.

Issues

Whether an appeal should be dismissed for a procedural error in the filing of the notice of appeal.
Whether an indictment for false pretenses under section 532 of the Penal Code is sufficient if it alleges specific false representations of fact that induced the victim to part with money.

Disposition. reversed

Quotations verified verbatim against the opinion

“It is not competent to correct the record of the court below by affidavits.”

“If the indictment in this case is subjected to the test laid down in the foregoing authorities, it will be found to contain all that is required in such an instrument.”

“We cannot see in what respect the indictment is defective, and are of opinion that the court below erred in sustaining the demurrer thereto.”

Synopsis

Crtmtnat. Law—Appeal—Attack on Record.—The verity of a transcript on appeal cannot be attacked by affidavits filed in the Supreme Court in support of a motion to dismiss.

Obtaining Monet Under False Pretenses—Sufficienct of Indictment. —The defendant was charged with obtaining money under false pretenses, and the indictment alleged that at a certain time and place the defendant, with intent to defraud one K. of his property, did unlawfully, knowingly, and designedly, falsely pretend and represent to him that certain bonds of a certain railroad were of the market value of six hundred dollars; that any bank in San Francisco would lend that amount on them ; that the road of the company issuing the bonds was in running order and paying expenses ; and that K., believing the false pretenses and representations, was induced by reason thereof to loan and deliver to defendant on the pledge of the bonds the sum of thirteen hundred and sixty-five dollars. It further charged that the money was obtained by the defendant unlawfully, knowingly, and designedly to defraud K. It also negatived the truth of the representations. Held, that the indictment was sufficient.

Morrison, C. J. The principal grounds on which defendant based his motion to dismiss the appeal, have already been considered and overruled by the court. (65 Cal. 644.)

But there is another ground not heretofore considered, on which the defendant asks that the appeal in this case may be dismissed, and that is, because section 1240 of the Penal Code has not been complied with. That section provides that an appeal is taken by filing with the clerk of the court a notice of appeal, and serving a copy thereof on the attorney of the adverse party.

The contention here is, that the notice of appeal in the case now under consideration was served on the adverse party one day before the same was filed in the office of the clerk. This fact defendant attempts to establish by affidavits.

Without passing on the question as to what would be the effect of such a proceeding, if true, it is sufficient to say that the transcript shows a different state of facts, to wit: that the notice was filed and served on the same day.

It is not competent to correct the record of the court below by affidavits. If the record does not speak the truth, it should have been corrected in a proper proceeding in the court below, and its verity cannot be attacked in the manner attempted in this case.

The motion to dismiss must be denied; and we will now consider the merits of the appeal.

The prosecution in this case is under section 532 of the Penal Code, which provides that “ every person who knowingly and designedly, by false or fraudulent representations or pretenses, defrauds any other person of money or property, or who causes or procures others to report falsely of his wealth or mercantile character, and by thus imposing upon any person obtains credit, and thereby fraudulently gets into possession of money or property, is liable,” etc.

[12]The above section, which is substantially copied from the English statute, and finds a place in the Penal Codes or criminal enactments of other States, was considered by the Supreme Court of Massachusetts, in Commonwealth v. Drew, 19 Pick. 182, and it was there held that to constitute the offense described four things must concur, and four distinct averments must be proved:

“ 1. There must be an intent to defraud ;

People v. Jordan

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