
    The State of Iowa v. S. E. Carter, Appellant.
    31 False Pretenses: ('íiaiutaiíi.e gifts. Obtaining money as a charitable gift, by false pretenses, is a false pretense.
    10 Inducement. On a prosecution for obtaining a signature to a bank check by false and fraudulent representations, it is not nocessary that the false pretenses be the sole inducement to the obtaining of the check, but, if they had material or controlling influence, they are sufficient.
    1 10 Materiality. Wherd defendant, charged with obtaining* signature to a bank check by false and fraudulent representations, stated to the person who signed the check that he had bought a' team; that he had just learned that it was mortgaged and that the mortgage must be immediately redeemed; that he had not sufficient money to make the redemption; and that without the sum of $35.00 he would lose the property purchased, or the amount paid thereon, — and such person relied thereon,— the pretenses were material.
    4 Indictment: Charge in alternative. Where an indictment for obtaining the signature to a bank check by false and fraudulent representations purports to give the statements and representations made by defendant, it is not invalidated by the fact tha<, some of such statements and - representations are in the alternative, and are so stated.
    3 Reliance. An indictment for obtaining a signature to a bank check by false representations, which charges the person who signed the check believed the representations were true, and that he would not have signed or delivered it to defendant had it not been for representations so falsely and fraudulently made, sufficiently charges that the signer relied on the alleged false representations.
    2 Description of thing obtained. An indictment charging that the defendant, by false representations, obtained the signature of M. to a written instrument commonly called a “bank check," the false making of which would be punished as forgery, “for the sum of $35.00, and the said M. did then and there draw and sign said bank check, and deliver the same to said defendant,” sufficiently describes the instrument.
    7 Evidence: Timely objection. Where, on a prosecution for obtaining the signature to a bank check by false representations, evidence that the defendant made similar representations to a certain other person and procured $25.00 from him by reason thereof, is improperly admitted without proof of the falsity of such representations, a motion to strike was not too late, since, if followed by proof of the falsity of the representations, the evidence would have been material, and until it appeared that it would not be so followed, objections thereto would have been overruled.
    5 Corpus delicti. Where, on a prosecution for obtaining a signature to a bank check by false- and fraudulent representations, the statements and representations charged are established, their falsity appears, and it is shown that the signer relied thereon and was induced thereby to sign and deliver the check, the corpus delicti is sufficiently proved.
    
      
       Similar representations: Falsity essential. On a prosecution for obtaining a signature to a bank check by false representations, evidence that the defendant made similar representations to a certain person, and procured $25.00. from him by reason thereof, which he never repaid, is inadmissible, in the absence of proof that such representations were false.
    
       Province of juinr. Where, on a prosecution for obtaining the signature to a bank check by false representations, defendant introduced no evidence and the case was submitted on the state’s evidence, an instruction that the “proof shows beyond all controversy that said M. signed said check at the time named in the indictment” is erroneous.
    
       Reliance: Jury question. Where, on a prosecution for obtaining a signature to a bank check by false and fraudulent representations, the question was whether or not the person who signed the check was defrauded by the statements made to him, and was induced thereby to sign the check, it was properly submitted to the .iury.
    
      Appeal from Warren District Court. — ITon. James D. Gambee, Judge.
    Thursday, October 4, 1900.
    Dependant was indicted, tried, aud convicted of tbe ea-ime of obtaining tbe signature to an instrument by false and fraudulent representations, and from tbe sentence imposed appeals.
    
    Reversed.
    
      Bowen & Brockett for appellant.
    
      Milton Remley, Attorney General, for tbe State.
   Deemer, J.-

Tbe state claims that defendant procured from one J. L. Miller a check for $35.00, drawn on tbe Indianola Bank, by falsely and fraudulently representing that be (defendant) bad been to St. Charles, Iowa, and bad bought, a team of one Clanton; that he bad just learned that- tbe team was mortgaged, and that tbe mortgage must bo immediately redeemed; that be bad not sufficient money with which to make redemption; and that without tbe sum of $35.00 be would lose the property purchased or the amount paid thereon.

The first jjoint made by appellant is that the indictment is not sufficient, because the check is not copied or set out at length therein. The indictment charges that defendant obtained Miller’s signature to a bank check for the sum of $35.00, and concludes, “a more specific description of said check being unknown to this grand jury.” Ordinarily, this would be a sufficient excuse for not setting forth the instrument in haec verba, even if an exact copy was required. But it is said that the county attorney liad access to the check at and prior to the time he drew the indictment, and that this fact is fatal. Conceding, for the purposes of the case, that the allegations of want of knowledge of the description of an instrument referred to in an indictment may be contradicted, yet we do not think it necessary to set forth a copy of the check. Such a description must bo given, however, as will suffice to identify it with accuracy and certainty when offered in evidence. Com. v. Coe, 115 Mass. 481. The indictment, as wro have seen, charges, that defendant obtained the signature of J. L. Miller to a written instrument commonly called a. “bank check,” the false making of which would he punished as forgery, “for the sum of thirty-five dollars,” and the “said J. L. Miller did then and there draw and sign said bank check, * * and deliver the same to said S. E. Carter.” This, to our minds, is a sufficient description of the instrument. Bonnell v. State, 64 Ind. 498, relied on hy appellant’s counsel, differs from the instant ease in this: 1hat in the Bonnell Case the date of the check was not-given, nor did it appear who made or executed the same. Com. v. Brettun, 100 Mass. 206, supports our conclusions.

Again, it is said the indictment does not charge that Miller relied on the alleged false representations. It charges that Miller believed the same were true, and that he would not have signed the check, nor delivered it to defendant, had it not been for the representations so falsely and fraudulently made. This was sufficient. State v. McConkey, 49 Iowa, 499; People v. Jacobs, 35 Mich. 36,

Again, it is said that the representations arc charged in the alternative, and doi not relate to any material past or present fact. Neither of those objections is tenable. The indictment purports to give the statements and representations made by defendant, and if it be conceded that some of these were in the alternative, and were so stated, it does not invalidate it. The representations charged were of a past event, and some of them were material as will hereafter appear.

II. The corpus delicti was sufficiently proven. The statement and representations charged were established, their falsity appears, and it is also shown that Miller relied thereon, and was induced thereby to sign and deliver the check.

8 III. The state offered evidence to show that defendant made somewhat similar representations to one M. W. Miller, and procured $25.00 from him by reason thereof, which he has never repaid. In State v. Leavis, 96 Iowa, 298, we quoted with approval from V Am. & Eng. Ene. Law, 180, as follows: “It is now generally held that, for the purpose of proving the intent, evidence of similar pretenses, made about the time and in the same neighborhood to other persons, of the pretenses alleged in the indictment, may be introduced.” The representations made to M. W. Miller wore sufficiently connected in point of time to be admissible under this rulp, and, had it been shown that they were false, there would have been no error in receiving thorn in evidence. But there was no proof wdiatever that they were false, and defendant’s motion to exclude should have been sustained. The attorney general’s contention that objection should have been made to the questions that elicited the evidence, and that the motion to strike came too late, is wdthout merit. When the evidence was offered it w^as not necessarily objectionable. If followed by proof of the falsity of the representations, it would have been material, and, until it appeared that it would not bo so followed, defendant’s objections would have been overruled. Wilkins v. Insurance Co., 57 Iowa, 529, relied on by the state, is not in point. It is true defendant moved for a verdict on the evidence adduced by the state. But it also appears that he offered no evidence, and that the case was submitted on the evidence introduced by the state. The case comes to us on exceptions to the rulings on the motion to exclude the evidence relating to similar transactions to that with which defendant is charged, and on exceptions to an instruction to the effect that such evidence was admissible on the question of intent. In the Wilkins Case the court overruled defendant’s demurrer to the evidence, and rendered judgment for plaintiffs, and the appeal was from that ruling. The case was submitted to the jury, and no question was presented on appeal save the sufficiency of plaintiff’s evidence.

IY. The court instructed that the “proof shows beyond all controversy that the said J. L. Miller signed said check at' the time named in the indictment.” This was clearly erroneous. State v. Lightfoot, 107 Iowa, 344. As defendant introduced no evidence, the court might as well have said that, as there was no contradiction in the evidence, all the elements of the crime were established. This, of course, it could not do. What it did do was no less objectionable.

11 Y. lastly, it is said that the representations made by defendant were not material, and that if true they would have been of no advantage to the party defrauded. To make out the offense, it must be shown that the pretense was of a past event or existing fact, that it was false, calculated to deceive, and was believed and relied on by the party defrauded. State v. Montgomery, 56 Iowa, 195. The question as to whether or not Miller was defrauded by the statements made to him, and was induced thereby to sign the check, was properly submitted to the jury. Defendant made the statements relating to the purchase of the team and other property, and the existence of a mortgage on the same, and the time redemption would expire, for the purpose of inducing Miller to execute the check, and if he (Miller) relied thereon the jury was justified in finding that the pretenses were material. It is not necessary that the false pretenses be the sole inducement to the obtaining of the check.' If they had a material or controlling influence in inducing the delivery of the cheeky they are sufficient. State v. Fooks, 65 Iowa, 196. State v. Nine, 105 Iowa, 131, r\\\ gested by defendant’s counsel is not always correct. In Massachusetts it is expressly held that obtaining money as a charitable gift by false pretenses is an offense under the statutes of that state, which are almost identical with our own. Com. v. Whitcomb, 107 Mass. 486 See, also, State v. Matthews, 91 N. C. 635. This, we think, is the correct rule, notwithstanding the discordant tone of some of the cases from other states. The reasons for protecting persons who part with their money from motives of benevolence arc as strong as those for protecting persons who part with it from self-interest. Charity should be protected as Avell as trade. Dor the errors pointed out the judgment is reversed.

Granger, O. J., not sitting.  