
    STATE, Respondent, v. VAN RUSCHEN, Appellant.
    (160 N. W. 811.)
    (File No. 3979.
    Opinion filed December 30, 1916.
    Rehearing denied March 5, 1917.)
    1. Criminal Law — False Pretenses — Information, Sufficiency of— Obtaining Signature — “by Color of False Token,” Surplusage.
    Under Pen. Code, Sec. 645, 'providing that every person who, witih intent to cheat or defraud another, designedly, by color of any false token, or other false pretense obtains signature to any written instrument, etc., is punishable etc., held, that false .pretense by oral statements or representations may constitute an element of the crime, without either color or aid of any false token or writing; therefore, where in an information for obtaining, “by color and aid of a false token and writing and by false representation,” thé signature of a certain person to a release of all the lots described in a certain mortgage, by falsely, etc., representing that said release was only of a fraction of the whole number of lots embraced in the mortgage, no “false token or writing” is attempted to be alleged or identified in the information, and that clause therein may be treated as surplusage.
    2. Same — False Pretenses — Procuring Signature to Mortgage Release — Information, Sufficiency of — Statute.
    An information under Pen. Code, Sec. 645, charging that, designedly, and with intent to cheat and defraud, by falsely representing that a certain instrument, which a certain person executed, etc., was a release of a mortgage on 3 lots, when in fact it was a release of 39 lots, sufficiently stated an offense, under said statute, as against the objections that it failed to allege that said person was induced by false representations to subscribe .her name, that it failed to allege that she was cheated or defrauded, or to allege that any trick, artifice or deception, was used excepting the bare statement that the writing was a release, etc.;' although the information is inartistically drawn.
    3. Same — False Pretenses — Obtaining Signature to Instrument— Elements of Offense.
    The intent to defraud, the designedly false representation, reliance thereon, the obtaining signature thereby, and injury to the party whose signature was obtained, constitute the elements of the statutory crime of obtaining the signature of a .person to a written instrument with intent to cheat or defraud, under Pen. Code, Sec. 645.
    4. Same — False Pretenses — Defrauding by Procuring Signature to Instrument — Evidence, • Sufficiency — Rule of Evidence.
    
      Under Pen. Code, Sec. 645, helcl, that the objection that a false representation that the written instrument in question releases but 3 lots, when on its face it releases 39 lots, could not have deceived a person of ordinary intelligence, that the person in question had at hand the means of detecting the falsehood, etc., and that the evidence fails to sustain the charge, is untenable, since, where fraud is alleged, the former doctrine of due care and diligence has given way, under recent authority, to what is deemed the doctrine of comparative intelligence, under which doctrine the signing of the paper without the reading of it is held to involve more than the negligence of the signer, since the signature itself was procured by fraud of the other; which rule is amply sustained by authority.
    5. Same — False Pretenses — Procuring Signature to Instrument— Evidence, Burden of Proof.
    In a prosecution for false pretense in procuring signature to an instrument, under Pen. Code, Sec. 645, whether the representations were made, were false, were intended to defraud, and were relied upon, and actually deceived prosecutrix, were all matters of fact to 'be proved under the allegations of the information.
    6. Same — False Pretenses — Evidences—Inability to Read Instrument, Reliance on Representation, Competency.
    In a prosecution, for false pretenses in procuring the signature to- an instrument, under Pen. Code, Sec. 645, evidence of prosecutrix tending to show that she could not read English ¡print or writing, and that she believed and relied on defendant’s statement that the instrument she signed released from the mortgage only three of the 39 lots, was competent.
    7. Same — False Pretenses — Evidence, Sufficiency of, Elements to. be Proven.
    Evidence, involving prosecutrix’s testimony that she could not read or write English; that defendant told her he would like to sell the lots covered 'by her mortgage, and have her release tibem when sold, etc., that he afterwards told her he had sold three lots and wanted them released, defendant giving an entirely different version of the conservations, held, sufficient to support a jury’s finding that prosecutrix was in fact deceived by the representations as to contents or effect of the instrument she signed, and that she did in fact rely upon the statements of accused; the law, requiring only that representations were made with intent to defraud, were false, and that they actually deceived the person accused intended to defraud; it being unnecessary to show that the victim could with reasonable diligence have ascertained that the representations were false-.
    
      
      8. Same — False Pretenses — Evidence, Sufficiency — “Testimony oí Two ' Witnesses,” Corroboration — Statutes—Secs. 304., 365, Code Cr. Prcc., Distinguished.
    In a prosecution for false pretenses in procuring signature to an instrument, under Pen. Code, Sec. 645, the testimony of two witnesses, children of prosecutrix, that they had had a conversation with accused concerning the lots on which prosecutrix held a mortgage, and that accused told them that ibis mother had a mortgage-on some 39 lots in a certain town; that he had sold 3 of them, that the mother agreed, in ca'se he sold any of the lots, that she would give him a release for as many lots as he sold, and that he had sold 3, and wished them (the children) to tell the mother he would like to have her release those 3 lots, was sufficiently corroborative evidence of the .pros-ecutrix’ testimony that accused had represented to her that the release, which she signed, only covered 3 out of the 39 lots, within the meaning of Code Cr. Proc., Sec. 65, providing that defendant cannot he convicted of false pretenses, if the false pretense was expressed in language unaccompanied by a false token or writing, .unless the pretense be proven by the testimony of two witnesses or that of one witness and corroborating circumstances.
    9. Same — False Pretenses — Fraudulent Intent, Sufficiency of Evidence — Question for Jury.
    In a prosecution for fraudulently obtaining the signature to an instrument, under Pen. Code, .Sec. 645, the existence of fraudulent intent was for the jury, upon all the evidence. Evidence held sufficient to sustain finding of fraudulent intent. Polley, P. J., not sitting.
    Appeal from 'Circuit Count, Turner County. Hon. Joseph W. JoNKs, Judge.
    The defendant, H. Van Ruschen, was convicted of the crime of fraudulently procuring the signature to a written instrument, and he appeals.
    Affirmed.
    
      Spangler & Haney, Bogue & Bogue, and Jones & Jones, for Appellant.
    
      Clarence C. Caldwell, Attorney General, Byron S. Payne, Assistant Attorney General, and D. B- Hd-nson,, State’s Attorney, for the state.
    (4) To point four of the opinion, Appellant cited; Finlay-son v. Finlayson, 21 Rac. 57-60; Fanlow v. Chambers, 21 S. D. 128; Wyman v. Wilmarth, 1 S. D. 172; Walker v. State, 1915C, L. R. A. 1161, and cases there cited; State v. Cameron, 117 Mo. 641; Com. v. Grady, 13 Bush. 285; 'Coni', 'v. Ganghy, 3 Met. 223 S. R. 113-119-120-121.
    Respondent cited: People v. Smith, (Calif.) 84 Pac. 450; Miller y. People, 22 Colo. 530, 45 Pac. 408; Thompson v. People, 113 Ill. 531.
    ('8) To point eight oif the opinion, Appellant cited: Code Cr. Pro. Sec. 363; People v. Gibbs, 33 Pac. 630, 631.
    Respondent cited: People v. Gibbs, supra; Ex parte Chat-, •field, (Cal.) 36 Pac. 948; People v. Martin, 36 Pac. 952; People v. Ward1, (Calif.) 89 P;ac. 874; State v. Neimeyer, 66 Iowa, 634, 24 N. W. 247; 'State v. Phelps, 5 S. D. 480; State vs. BrandeH, (S. D.) 129 N. W. 242, 26 S. D. 642; 12 Cyc. 455.
   SMITH, J.

Appeal from a judgment of conviction and an order overruling a motion for a new trial.

The .information alleges: the representations -so made -by the said H. Van Ru-schen, contrary,” etc.

“That H. Van Rusohen, late of, ate., * * * did1 then and there willfully, unlawfully, feloniously and' designedly and with intent 'to cheat and- defraud one Tetta Lammers, by color and aid -of a false token and «writing, and by falsely representing that a certain written instrument, which the said Tetta Lam-mers did then and there execute -and deliver to said H. Van Ruschen, as follows, etc. (here is set forth in haec verba an instrument purporting to be a release, reciting payment, satisfaction and discharge, 'of a mortgage executed by defendant and his wife to Tetta Lammers, dated January 31, 1912, and duly recorded, covering thirty-nine lots in the town of Marion Junction) was only a partial discharge of a certain real estate mortgage (describing the mortgage above referred toi), and released said.' mortgage only as to the three lots (describing them), and by means of said false representations and pretenses obtained the signature of said Tetta Lammers to the said written instrument, to-wit, the said release of said' real'estate mortgag'e; whereas in truth and1 in fact the said written instrument * * * was not a release and satisfaction of said mortgage as« to (three lots), but was in ¡truth and in fact a release and1 satisfaction in full of said real estate mortgage; and said PI. Van Ruschein had paid upon- said indebtedness only the sum of $150.00; all of which was well known -to him,, the said H. Van Rus'chen, and that Tetta Lammers relied upon

At the opening oí the trial, tire defendant objected to the •introduction of any evidence for the reason that this information -does not allege facts -constituting a public -offense. The information i-s drawn under section 645, Penal Code, which .provides:

“Every -peis-on who, with intent to cheat or defraud another, designedly, by color or .aid of any false token 'or writing, or other false pretense, obtains the signature of any person to- any written instrument, or obtains from any person any money or property, is -punishable,” etc.

No “false token or -writing-” is attempted to ibe alleged 01-set out or identified- in the information, and that clause in the information may ¡be treated as surplusage. Under this statute, false .pretenses by oral statements or representations may constitute one element of the crime, without either “color o-r aid of any false token or writing.” Barton v. People, 135 Ill. 405, 25 N. E. 776, 10 L. R. A. 302, 25 Am. St. Rep. 375; 11 R. C. L. 838 (18).

Appellant’s first contention is that this information fails to state facts which constitue a crime under the -statute, in that there is no 'allegation that Tett-a Eammers was induced by any false representation to- subscribe her name to said release of mortgage, in that there is no allegation that she -was in any manner or degree cheated or defrauded, in that it is not alleged that any trick, -artifice, or deception was used, excepting the bare statement that the writing was a release of 3 lots, when in fact it was a release of 39 lots.

The information is inartistic-ally drawn, -but we think sufficiently charges 'that the -accused, designedly and with intent to -cheat and defraud Tet-ta Eammers, obtaining her signature to -a release ior discharge of a real estate mortgage executed- to her by accused -and his wife for $1,000 covering 39 lots, -on which indebtedness only $150 liad been .paid, by falsely representing to her that said discharge was an instrument or writing which released only 3 of said lots, whereas in truth and fac-t said instrument was not a -release of 3 lots, but was a release in full of the mortgage -covering 39 lots, all of which was well known to him; and that Tetta Lammers relied' upon the representations made to her by the accused. The intent to defraud, the designedly false representation; -her reliance thereon, the obtaining her signature thereby, and her injury, constitute the essential elements of the statutory crime.

Appellant’s real contention appears to be that a false representation, that the written instrument released but 3 lots, when on its face it released 39 lots, could1 not have deceived a person of ordinary intelligence; that she must be presumed to have ordinary intelligence; and that she had at hand 'the means of detecting the falsehood, and1 could not ¡have been deceived ¡by false representations as to the contents of an instrument which she had before her when she signed it. It is urged that such am allegation would not be sufficient ground for setting aside a contract in a civil action, much less to convict of a crime, citing Finlayson v. Finlayson, 17 Or. 347, 21 Pac. 57, 3 L. R. A. 801, 11 Am. St. Rep. 836; Farlow v. Chambers, 21 S. D. 128, 110 N. W. 94. The decision in the latter oase was grounded upon negligence disclosed by the evidence, and, as stated in the opinion, was not “one in which the signer was prevented1 from ascertaining the truth by subterfuge or some fraudulent device.” .Where fraud is alleged, the 'former doctrine of due care and diligence to avoid being- cheated has given way, under more recent authorities, to what Mr. Black terms the “doctrine of comparative intelligence.”

“In such case the signing- of the paper, without reading it, ■involved more than the negligence of the signer, since the signature. itself was procured bjr the fraud of the other.” Herreid v. C. M. & St. P. Ry. Co., 159 N. W. 1064 (S. D.).

This rule is amply sustained by the authorities. People v. Cummings; 123 Cal. 269, 55 Pac. 898; Lefler v. State, 153 Ind. 82, 54 N. E. 439; People v. Bird, 126 Mich. 631, 86 N. W. 127; State v. Southall, 77 Minn. 296, 79 N. W. 1007; Miller v. People, 22 Colo. 530, 45 Pac. 408; Johnson v. State, 36 Ark. 242; Oxx v. State, 59 N. J. Law, 99, 35 Atl. 646; State v. Stewart, 9 N. D. 409, 83 N. W. 869.

The information was -sufficient to advise the accused of the nature and cause of the accusation and to enable him to prepare his defense as well as to. enable him to plead a conviction or .acquittal' in bar of another prosecution upon the same transaction. Whether the representations were made, were false, were intended to defraud, and were relied upon and! actually 'deceived Tetta Lammers, were all matters of fact 'to be ¡proved under the allegations of (the information. State of West Virginia v. Hurst, 11 W. Va. 54; People v. Jefferey, 82 Hun, 410, 31 N. Y. Supp. 267; Clifford v. State, 56 Ind. 245; State v. Butler, 47 Minn. 483, 50 N. W. 532; Norris v. State, 25 Ohio St. 217, 18 Am. Rep. 291.

Alt the trial, evidence of Tetta. L'ammers tending to show that she could not read- English print or writing, and that .■s'he believed and relied on Van Rusdhen’s statement that the instrument she signed' released from the mortgage only 3 of the 39 lots, was received1 over proper objections, and error is assigned. This evidence was clearly competent. Appellant also assigns as error insufficiency of ¡the evidence to sustain the verdict, in that Tetta Lammers; had 'the instrument she signed before her own eyes at the time ¡she signed ¡it, and had the means of knowing the truth in her own hands:, and therefore •could mot have been deceived' as to the contents of the instrument. This 'contention perhaps has been sufficiently- answered in what we have already said as to the 'sufficiency of the information.

The question here, however, is as to the legal sufficiency of the evidence to establish the fact that Tetta Lammers -was indiu'ced to sign the release by false statements' made to' -her with •fraudulent intent by the accused. S'he testified in substance as follows': That she had lived in Marion 22 year-s; was born iii Germany; came to this country in 1892; her husband died in 1895; had been' acquainted! with defendant Van Rusohen all that time; had business dealing's wi-thi him; identified as exhibits the thousand dollar note and mortgage securing it; that s'he could not read or write English; that nothing" had been paid on the thousand1 dollar note except the interest, and $150; 'had a talk with Van Rusohen in regard to what should be done if be sold some of these -lots; ibe said, he would like to- sell the lots when he had a chance and would like to have her release lots that he sold, and would pay the money to her when he sold lots; that lie oame to 'her blouse in Marion, July n, 1914, and said be had sold three lots to Henry Fog-el for $150 and wanted the three lots released; asked him:

“ ‘Can you do that, three lots, without releasing- them all, take them off?’ and he says, ‘Yes.’ Then I tell him, ‘You must give me the money, the $150.’ He says: T give you $100. I malee a sidewalk that cost me a whole lot.’ I tell him, ‘No; you must give me the $150,’ that it would reduce the principal and interest, and he says: ‘All right, T go over and get a man and I come back right away. Maybe I can get Mr. Cook.’ I do not know what he would get Mr. Cook for. He came 'back about half hour after that with Mr. ¡Clcok. He take a paper out of his pocket and lay it on the table. • Mr. Van Rusehen says: ‘Mrs. Lammers promised me that when I can sell some of them, lots she will release them.’ I says: ‘He want me to release them 3 lots; he sell 3 lots on Henry Fogel for $150, and he want me to .release them.’ I says, T must have the money, the $150.’ Van Rusehen says he got no money on hand, but want to- g-ive-me a check. Mr. Cook said: ‘Write your name here,’ and I write my name on, and then Mr. -'Cook write 'his name, make his stamp on. Then he -give it to- Van Rusehen. I have not seen the paper since. No, I don’t read; I don’t try to, I oan’t. I did not read the paper. I can’t read- English. Nobody read the paper to me. Yes, I -believed at the time I signed this paper that it was a release of only 3 lots sold to Henry Eogel. No-, I would not have signed that release if I liad known that it released all 'the 39 lots. Yes, I relied on what Van Rusehen told me, that it .was a release of 3 i-otis only. After the note was due I fo-undi out -that -the release was on all the lots — -the 39 lots. That was in 19x5, in this year.”

The accused -denied all of these statements and' gave an entirely different version -of the conversation had at the time the release was signed, to the effect that his indebtedness was substantially all paid and that Tetta Lammers agreed to release the mortgage as to all the lots.

U-poni the issue of fact .it wia-s the.duty 'and province of the jury -to determine the credibility of the witnesses, and we cannot ad'ju-dge as a matter of law that Tetta Lammers was not in faot deceived ’by the representations made as to the contents or effect of the instrument she signed, or that-ishe did1 not in fact rely upon the statements of the accused1.

The modern authorities seem to require only that the representations 'were made with intent to1 defraud, were false, and that they actually deceived the person whom the accused intended to defraud. The modern doctrine is conoisely stated in 11 R. C. L. (13), where it is said:

“There seems to have 'been an effort in a large number of cases to shift the responsibility fior 'the deception toi the prosecuting witness, by 'showing that it was by reason of his negligence and lack of precaution 'that the deception was made possible. This appears to be an attempt too invloke the rule in civil actions of deceit that, when a person had at ¡hand1 the means of investigating the false representations, and might have determined their falsity by the exercise of only ordinary prudence, he will not foe heard to say that 'he was deceived. Although this' rule has 'been applied in some cases, chiefly the early ones, the- courts are now generally agreed that the dafendant’s guilt does not depend upon whether the victim could, with, reasonable diligence, have ascertained that the representations were false. When all the circumstances evince that the representation was made designedly, with -an intent to cheat, and was calculated too deceive and capable of defrauding, the prisoner cannot excuse himself by saying that if the victim had been 'sharp, vigilant, and astute he could have detected the fraud by using the means of detection available to him.”

See, also, authorities hereinbefore cited.

Appellant further contends that the evidence . is insufficient to sustain the verdict, for the reason that two. witnesses did not testify to. the alleged false pretense, and1 there -are- no circumstances disclosed by the evidence to corroborate the testimony of the one witness, Tetta Lammers, as required by section; 365, Code Grim. Proc., which provides that:

“Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained' the signature of any person to a written instrument, or having obtained from any .person any money, personal property or valuable thing, the defendant cannot be convicted' if the false pretense was- expressed in language unaccompanied by a false token or writing, unless the pretense, or some note or memorandum thereof, be in writing', either 'subscribed by, or in the handwriting of the defendant, or uniese the pretense be proven by the testimony of two witnesses, or that oif one witness and corroborating ichxurostances,” etc.

Jerry Hammers, a son of the prosscu-fcrix, testified that on the forenoon of July 4, 1914, he had -a conversation with the accused concerning some lots on which his mother held a mortgage; that accused told 'him that his mother, Tetta Hammers, had a mortgage on some 39 lots in the town of Marion Junction, and that he (Van Rusehen) bad sold 3 of the lots to Henry Fogei; that the mother had agreed, in case he slold any of the lots, she would give him! a satisfaction or release for as many lots as he sold, and said to him:

“Now, I have sold three, and I wish you to' explain that'to your mother and tell her that I would like to- have her release those three lots: that I sold to Henry Fogei. M:y sister Henrietta was with me.”

The testimony of the sister Henrietta was in substance the same. This conversation Was flatly denied by the accused.

If the accused in fact made the statements testified by these two witnesses, it cannot be doubted that such statements were corroborative Of the evidence oif the prosecutrix. People v. Ward, 5 Cal. App. 36, 89 Pac. 874; Commonwealth v. Castles, 9 Gray (Mass.) 121, 69 Am. Dec. 278; State v. Townsend, 19 Or. 213, 23 Pac. 968; State v. Walsh, 25 S. D. 30, 125 N. W. 295.

It may be observed that the statute (section 364, Code Cr. Proc.) requiring -corroboration of the testimony oif an accomplice differs somewhat from section 365. Under the former statute, the corroborative evidence must connect the defendant with the commission of' the offense, and evidence which merely shows the commission of the crime or the circumstances thereof is not sufficient; while, under the latter section, any “circumstances” which corroborate the testimony iof one witness ias to the “pretense” alleged to be false is sufficient. It is as to- this one element of the' crime, the pretense, that the statute requires corroboration. The “pretense” charged in the information, that the instrument, signed released! the 3 lots sold to- Fog’el, as testified to by. Tetta Hammers, is certainly corroborated by the statement alleged' to have been made by the accused to the two witnesses, that he had sold three of the mortgaged lots to Fogel, and ■wanted Tetta Lammers to release them. It' is conceded on the face of the record that the instrument signed by Tetta Lammers released all the 39 lots, and it follows that the representation charged, if made iby the accused, was false.

The existence iof fraudulent intend ¡wias for the jury upon the whole evidence, and, under presumably proper instructions, they found adversely to the accused. We cannot say as a matter 'of law that the evidence is insufficient to ¡sustain such finding.

We have considered with much care all the assignments of error, and, although we have not discussed them all in detail, we find none which in our judgment would warrant a reversal.

The judgment and order of the trial ciourt are therefore affirmed.

PO'LLEY, P. J., not sitting.  