
    STATE v. DEVOT.
    No. 4325.
    Decided December 7, 1925.
    (242 P. 395.)
    Criminal Law — One Obtaining Monet bt False Telegram: Held to Have Committed Crime in State Where Monet Given to Telegraph Company for Transmission. Where defendant in California sent a telegram to one in Utah under a false name, requesting that money be telegraphed to him, pursuant to which sendee deposited money in Utah office of telegraph company, requesting it to be sent to California, held, that telegraph company was thereby made agent of defendant to receive the money for him in Utah, and hence crime of obtaining money by fraud was committed in Utah, giving court of that state jurisdiction.
    Stratjp, J., dissenting.
    Corpus Juris-Cyc. References.
    
       Criminal Law, 16 C. J. pp. 190 n. 72; 191 n. 74, 75.
    Appeal from District Court, First District, Cache County; M. 0. Harris, Judge.
    Charles Devot was convicted of obtaining money by fraud, and he appeals.
    AFFIRMED.
    
      Fonnesbeck & Nelson, of Logan, for appellant.
    
      Harvey H. Cluff, Atty. Gen., and L. W. Miner, Asst. Atty. Gen., for the State.
   THURMAN, J.

The defendant was convicted by the verdict of a jury in the district court of Cache county of the crime of obtaining money by fraud and sentenced to serve an indeterminate term in the state prison.

The material evidence in the case was stipulated by the parties and set forth in the bill of exceptions. The foEow-ing facts are not in dispute: On the 28th day of July, 1925, one C. M. Hammond, at Logan, Cache county, Utah, received a telegram by Western Union Telegraph Company purporting to come from his son, Joseph Hammond, at Los Angeles, Cal., requesting the said C. M. Hammond to telegraph him at Los Angeles the sum of $142. Pursuant to said request the said C. M. Hammond immediately deposited the sum requested in the office of the said telegraph company at Logan, with directions that the said amount be AeHvered to Joseph Hammond in Los Angeles. Identification was expressly waived. It appears from the evidence of C. M. Hammond that after depositing the money and returning to his home he had some doubts as to the genuineness of the telegram he had received, but "decided to let it go.” A few days later another telegram purporting to be from Joseph Hammond at Los Angeles was received by C. M. Hammond at Logan making a further request for money. The matter was then referred to the sheriff of Cache county, resulting in the arrest of the defendant at Los Angeles. Defendant waived extradition and came to Utah in charge of the officers.

The defendant, testifying in his own behalf, admitted receiving the money in Los Angeles, but disclaimed sending the telegram to C. M. Hammond. His explanation of the transaction was to the effect that he. became acquainted with a person in Los Angeles representing himself to be Joseph Hammond; that said person informed him that money had been telegraphed him by his father and that the telegraph company had refused to deliver the money to him' because he was under the influence of liquor when he applied for it; that inasmuch as there had been a change of shift in the telegraph office the said person claiming to be Joseph Hammond requested the defendant to assume his name and make application for the money; that he did as requested and obtained a draft for the sum of $142; that he delivered the draft to the supposed Joseph Hammond, who was waiting down the street about a half block away; that the next day be saw the supposed Joseph Hammond and was informed by him that he had been unable to cash the draft, for the reason that the bank required identification by some one who had money in the bank; that he then requested defendant to go into the telegraph office where he had received the draft and get it cashed; that defendant did so and received the money, which he thereafter delivered to the supposed Joseph Hammond; that defendant received no consideration other than the use of a room which the supposed Joseph Hammond had paid for in advance and a loan from him of $4 or $5.

The defendant further testified that he believed that said person was in truth and in fact the son of C. M. Hammond, as he, represented himself to be, and was entitled to receive the money; that defendant did not know there was any fraud in connection with the draft or in receiving the money; that when he procured the draft to be cashed he indorsed it in the name of Joseph Hammond; that on the nest day the said supposed Joseph Hammond informed him that there was some more money for him at the telegraph office, and stated that since defendant was known there as Joseph Hammond “he better go and get this money also”; that defendant went to the office and asked if there was more money for Joseph Hammond, and was ¿hereupon arrested; that he then, with the officers, went to the place where he expected to find the supposed Joseph Hammond, but he had disappeared.

A Los Angeles detective testifying for the state, after identifying defendant as the person arrested in Los Angeles charged with the offense on trial, said that while in jail in Los Angeles the defendant admitted to him that he knew the man posing as Joseph Hammond was a fraud, and that it was a crooked game, but that he (defendant) “was short o'f money and decided he would go in with the other party with the understanding that the other" was to give him a portion of a split of the proceeds.”

It is stipulated in the bill of exceptions that the appeal is not made on the ground that the evidence is insufficient to support the verdict, but on the ground that the court bas no jurisdiction, of tbe defendant. Tbe bill also shows that tbe defendant duly excepted to the refusal of tbe court to give bis requested instructions Nos. 1 and 4. It was further stipulated that tbe real Joseph Hammond did not send tbe telegram in question or receive tbe money. Several exhibits are referred to by letter in the bill of exceptions, but they were not made part of tbe record on appeal, and are therefore not before tbe court. Defendant’s request No. 1, to tbe refusal of which defendant excepted, was a peremptory instruction to find tbe defendant not guilty. Request No. 4 reads as follows:

“You are instructed that if you believe from the evidence that the money, if any, was delivered to, and received by, the defendant in Los Angeles, Cal., then you are instructed that this court is without jurisdiction, and your verdict should be, for the defendant, not guilty.”

Tbe refusal to give tbe request just 'quoted and defendant’s exception thereto, as we interpret tbe stipulation, presents tbe only issue to be determined on this appeal. Assuming that tbe evidence is sufficient to support tbe verdict, if tbe court bad jurisdiction, we now proceed to a consideration of tbe question involved.

Appellant’s contention is that as tbe undisputed evidence shows that tbe defendant received tbe money at Los Angeles, and that that is where tbe money was obtained, therefore the offense of obtaining money by fraud, if any offense was committed, occurred outside tbe state of Utah; that defendant could not be charged with obtaining money in Logan unless the telegraph company was bis agent to receive tbe money. Appellant vigorously contends, as matter of law, that tbe telegraph company was not tbe agent of defendant. On tbe other hand, respondent insists that tbe telegraph company was tbe defendant’s, agent, and upon this single issue, in tbe last analysis, tbe lines of battle are drawn.

It will be remembered that C. M. Hammond, at Logan, Utah, telegraphed tbe money at that point to the supposed Joseph Hammond at Los Angeles, at bis request; that tbe defendant in this case admitted to tbe detective, at Los Angeles, that be knew tbe supposed Joseph Hammond was a fraud; that it was a crooked game; but that- being short of money be decided to go -in with the other person on the understanding that he was to have a split of the proceeds.

The jury was warranted in finding that defendant was in the “game” from the beginning. In fact, under all the circumstances, the jury was warranted in finding that the defendant, alone, either sent or authorized the sending of the telegram by which the fraud was consummated and the money obtained.

Appellant refers us to numerous cases holding that the offense of obtaining money by fraud, or under false pretenses, is triable only in the jurisdiction where the money was obtained, and quotes from 16 C. J. title “Criminal Law,” § 273, the following:

“The general rule is that the crime of obtaining money or property hy false pretenses is completed where the money or property is obtained, and that, if the pretenses are made within one jurisdiction and the property or money is obtained in another, the person making the representations must he indicted in the latter jurisdiction.”

See, also, the following cases relied on by appellant: Graham v. People, 181 Ill. 477, 55 N. E. 179, 47 L. R. A. 731, State v. House, 55 Iowa, 466, 8 N. W. 307; State v. McGinnis, 71 Iowa, 685, 33 N. W. 338; State v. Smith, 162 Iowa, 336, 144 N. W. 32, 49 L. R. A. (N. S.) 834; Stewart v. Jessup, 51 Ind. 413, 19 Am. Rep. 739; Com. v. Van Tuyl, 1 Metc. (Ky.) 1, 71 Am. Dec. 455; Connor v. State, 29 Fla. 455, 10 So. 891, 30 Am. St. Rep. 126; People v. Cummings, 123 Cal. 269, 55 P. 898; Bates v. State, 124 Wis. 612, 103 N. W. 251, 4 Ann. Cas. 365 and note; Burton v. U. S., 196 U. S. 283, 25 S. Ct. 243, 49 L. Ed. 482.

These cases do not go to the meat of the question presented here. The rule therein stated may well be conceded. The question here, however, is, “Where was the money obtained?” If the telegraph company was the agent of the defendant to receive the money then, under the undisputed evidence, the defendant received the money in Logan. This, in our opinion, is a sensible rule, well supported by both reason and authority.

Immediately following tbe passage quoted by appellant from C. J\, supra, tbe rule is stated as follows:

“Where, induced by false pretenses, one transmits by mail to defendant, money, drafts, or other writings, such mailing is a delivery to tbe postmaster as tbe agent of defendant, to be forwarded to him, and tbe offense is -committed where tbe letter is mailed, and is indictable at such place. Where tbe false pretenses are made in one jurisdiction, and in reliance on such pretenses goods are delivered to a carrier for shipment to defendant, the carrier acts as agent of defendant, so that tbe delivery to tbe carrier is a delivery to defendant; and accordingly the venue is properly laid in tbe county in which tbe goods are so delivered, unless there was a special agreement for delivery to the consignee in a county other than that from which the goods were shipped.”

In Brill, Cyc. Crim. L!aw, vol. 1, at page 543, tbe general rule relied on by appellant as quoted from C. J. is affirmed. Tbe author, however, at page 543, says:

“In several cases it has been held, to sustain jurisdiction, that delivery to a carrier or agent for defendant at bis request is a delivery to defendant and completes tbe offense at tbe point of such delivery, and it has been further held that in such a case tbe prosecution not only may but must be bad at the point of such delivery.”

Respondent also refers to' tbe following cases: State v. Gibson (Iowa) 106 N. W. 270; In re Stephenson, 67 Kan. 556, 73 P. 62; Com. v. Taylor, 105 Mass. 172; State v. Lichliter, 95 Mo. 402, 8 S. W. 720; Morris v. State (Ohio) 18 Am. Rep. 291; Com. v. Karpowski, 167 Pa. 225, 31 A. 572. These eases support tbe text quoted from C. J. and Brill, supra, upon which respondent relies. See, also, People v. Adams, 3 Denio (N. Y.) 190, 45 Am. Dec. 468; Com. v. Wood, 142 Mass. 459, 8 N. E. 432. Sbme English cases are to tbe same effect. Regina v. Jones, Eng. Law & Eq. 533, 4 Cox Crim. Cas. 198; Rex v. Brisac, 4 East, 164. In a note to State v. Smith (Iowa), reported in 49 L. R. A. (N. S.) at page 835, it is said:

“Tbe place where tbe property is delivered to a carrier for transport to the defendant is the place where the defendant should be indicted for obtaining such property under false pretenses. [Citing cases.] This is upon tbe theory that tbe carrier is tbe agent of tbe defendant to receive and transport, as tbe title has passed, subject only to tbe right of stoppage in transitu.”

In bis reply brief appellant .refers ns to many cases, but tbe question of agency, which in our opinion is a controlling question here, does not appear to be involved. The cases, however, are: People v. Ballas, 55 Cal. App. 748, 204 P. 401; People v. Steffner, 67 Cal. App. 1, 227 P. 690; State v. Roy, 155 La. 238, 99 So. 205; Dechard v. State, (Tex. Cr. App.) 57 S. W. 813; Pepper v. People, 75 Colo. 348, 225 P. 846; State v. Smith, 162 Iowa, 336, 144 N. W. 32, 49 L. R. A. (N. S.) 834.

As hereinbefore stated the exhibits were not made a part of the record. The telegram in question is not before the court, but as we interpret the bill of exceptions stipulated by the parties the telegram specifically authorized the sending of the money by telegraph and expressly adopted that means of perpetrating the fraud. C. M. Hammond testified that on July 28th he received a telegram which he believed to be genuine and to be from his son, Joseph Hammond, and that in pursuance of the request in the said telegram he deposited in the Logan office $142 and requested that the same be sent without identification. This is corroborated by the telegraph operator who wired the money. There is not a scintilla of evidence by way of contradiction. We are of the opinion that the telegraph company was thereby made the agent of defendant to receive the money for him in Logan, Utah, and that there is where the money was fraudulently obtained. We are heartily in accord with the authorities relied on by appellant that the offense is not complete until the money is obtained by the defendant; but there is nothing in the views herein expressed in any manner conflicting with the rule.

Near the close of their reply brief counsel for appellant, by way of emphasizing the awful consequences which would result if respondent’s contention were adopted, use the following language:

“Let us suppose the converse of the facts in the ease at bar. Suppose here in Utah, by means of false representation, the defendant induced a party in California to Wire him some money, and suppose that the defendant is apprehended in this state where he received the money; could he successfully maintain that he was not subject to the jurisdiction, of the courts in this state, that the only court which had jurisdiction to try him was the court in the county in California from where the wire was sent ordering the payment of the money to him here? Yet that is exactly what the courts in this state would have to hold if the state’s contention in the case at bar is sustained; or else this court would have to hold that the defendant may be twice put in jeopardy and twice prosecuted for the same offense.”

In the light of the láw as we have found it, and to facilitate the due and proper administration of justice, we do not hestitate to hold that, if some person in Utah should fraudulently obtain money from a citizen of California by means substantially similar to those employed in the instant ease, the ease should be tried in California where the injury was done and the consequences of the wrong inflicted.

The judgment of the trial court is affirmed.

■GIDEON, C. J., and FRICK and CHERRY, JJ., concur.

STRAUP, J.

I dissent. We are agredd that the crime of obtaining property or money by false pretenses or fraudulent means is completed where the property or money is obtained; and, if the pretenses are made in one jurisdiction and the property or money obtained in another, the offense is indictable only in the latter jurisdiction. What chiefly divides us is: (1) Where was the money here obtained? And (2) whether the place where it was obtained was one of fact for the jury or of law for the court, and whether in such respect error was committed in the court’s refusal to charge as requested by the defendant.

Our statute (Comp. Daws Utah 1917, § 8344) provides that “every person who knowingly and designedly, by false or fraudulent representations or pretenses, shall obtain from any other person any chose in action, money, .goods, wares, chattels, effects, or other valuable thing, with intent to cheat or defraud any person of the same’’ is punishable, etc. That the word “obtain” as used in the statute means to get hold of; to get possession of; to acquire; and that to obtain money or property by false pretenses, etc., there must be a delivery, and that title or right of possession of and control over it must pass out of the accuser and vest, at least for some time, in. tbe accused before tbe offense is complete (State v. McGinnis, 71 Iowa, 685, 33 N. W. 338), is, as I understand, not disputed. That there should be a physical delivery by tbe accuser to tbe accused in person is not essential. It suffices if it be made to one designated by tbe accused to receive tbe goods or money, if by such delivery tbe property passed out of tbe title, possession, and control of tbe accuser and into that of tbe accused as completely as if a physical delivery bad been made to tbe accused in person (Bates v. State, 124 Wis, 612, 103 N. W. 251, 4 Ann. Cas. 365); that is, whether tbe delivery be to tbe accused in person or to some one designated by him to receive tbe goods or money, tbe title or possession and control must not only have passed out of tbe accuser, but it also must go to and be in or under the accused. So long as tbe title remained in or tbe property was subject to tbe control of tbe accuser, before tbe accused actually received tbe goods or money, the latter bad not, within tbe meaning of tbe statute, yet obtained it.

By tbe prevailing opinion tbe case in band is likened to that of goods and chattels delivered to a common carrier for transportation. It may be stated as a general proposition that, where goods are delivered to a common carrier for transportation to a consignee without any qualification or restriction, the consignor parts with tbe goods and all control over them, subject only to bis right to a stoppage of tbe goods in transitu and his lien for freight charges, and in such case the carrier becomes the agent of tbe consignee; but, if tbe shipper or consignor reserves any right to control tbe goods, tbe carrier is tbe agent of tbe consignor. 1 Micbie on Carriers, § 803. Such rule of agency, however, is founded on the fact that tbe title to tbe goods and right of possession of and control over them passed from tbe consignor and vested not in tbe carrier, but in tbe consignee. By some of tbe cases cited in tbe prevailing opinion this doctrine is applied to criminal cases of obtaining goods or chattels by false pretenses, etc., on tbe theory that tbe carrier being the agent of tbe accused, tbe latter obtained tbe goods when and where they were delivered by tbe consignor to tbe carrier for transportation to tbe accused, and benee bold that tbe prosecution is properly brought where tbe goods were so delivered to tbe carrier. Other courts repudiate such doctrine as applied to such criminal cases, and particularly as is shown by tbe cases of Commonwealth v. Schmunk, 207 Pa. 544, 56 A. 1088, 99 Am. St. Rep. 801, and Ex parte Parker, 11 Neb. 309, 9 N. W. 33. Though tbe Schmunk Case seems to be well considered and tbe subject therein treated at some length, yet it may be conceded that there are a greater number of cases holding against the rule therein announced. However, assuming the doctrine applicable to criminal eases, nevertheless I think the circumstances and facts incident to and the legal status arising out of a consignment of goods and chattels to a common carrier for transportation are not analogous to the case in hand.

The bill of exceptions in such particular recites: The agent or operator of the Western Union Telegraph Company at Logan, Utah, a witness called by the state, testified that he received a telegram, Exhibit A (which, as stated in the prevailing opinion, is not in the record), from Los Angeles and caused it to be delivered to C. M. Hammond, the accuser, in Cache county, Utah, to whom the telegram was directed; that in response to the telegram Hammond came into the Logan office and deposited $142 in currency, and requested the witness to transfer the same by telegraph to Joseph Hammond (his son) at Los Angeles; and that in pursuance thereof the telegram company at Los Angeles issued its draft which was, at Los Angeles, by it, delivered to the defendant, who pretended to be Joseph Hammond. C. M. Hammond, also a witness for the state, testified that he received the telegram which he believed to be genuine and to be from his son, Joseph, who was then residing at San Francisco, and that in pursuance of the request in the telegram he deposited $142 with the telegraph company at Logan and requested that it be sent without identification; that after doing so and going home and talking the matter over with his wife he grew a little suspicious and wondered whether or not it could have been a fraud, but decided to let it go. The accused, on receiving the draft at Los Angeles, attempted there to cash it at a bank, but failed to get the cash because he'was not able to identify himself as the payee of the draft, and thereupon he took the draft back to the telegraph office at Los Angeles, where he indorsed it to the company and there obtained the money called for by the draft.

. When goods are delivered to a common carrier for transportation, it, of course, is manifest that such particular goods are to be transported and delivered to the consignee and not some mere evidence or token upon which, when presented, goods of like kind in quantity and quality may be obtained elsewhere; and, further, and of more importance, the title and right of possession of the particular goods or chattels so delivered to the carrier pass from the consignor and vest not in the carrier, but in the consignee. Certainly no one would contend that if one in Los Angeles, by false pretenses or by some fraudulent scheme or plan, by mail or otherwise, ordered goods from another in another state, and such other, instead of shipping goods so ordered, transmitted to the accused some token, upon the presentation of which to a warehouse or wholesaler at Los Angeles the ordered goods were there obtained, the accused obtained them at any place except at Los Angeles. When C. M. Hammond, the accuser, paid over to and deposited with the telegraph company at Logan the $142 in money, it of course is manifest that such particular money or any money was not, nor was anything, to be physically transported or transmitted; and, in the very nature of things, money by telegraph is not transmitted as are goods or chattels, nor does the title to the money paid over to or deposited with the telegraph company vest in the person to whom it is to be paid, but vests in the company. In transmitting money by wire, as we say, the telegraph company does what it here did, but issues its cheek or draft to some designated person, or, if it chooses, pays him in money. But the money so paid to or deposited with the company becomes the money and property of the company, just as money deposited by one in a bank becomes the money of the bank, and the company or bank becoming a mere debtor or obligor to repay it either to the depositor or to some one designated by him, and, when it is paid, it is paid as it here was, ont of its own funds. In other words, the relation so created is not one of agency, but that of an independent contractor. When the money was so paid to the telegraph company, it either, by an express or an implied contract, agreed to pay an equivalent amount of money at Los Angeles to the son of the depositor, the person designated to whom it was to be paid, and, upon the company's failure so to do, it became liable either to the depositor or to the person to whom it was to be paid. But such liability would not rest on the theory that the company was the agent of either the depositor or of the person to whom the money was to be paid, but on the theory of a breach of its contractual obligation to pay the money as it either expressly or by implication had agreed to do. The depositor, having paid the money to the telegraph company at Logan, let it be assumed he there lost it. The question,however, is not, Where did the accuser lose it, but, When and where did the accused obtain it? Had the money, after it was deposited with or paid over to the company at Logan there, been lost or destroyed it is clear that the loss would have been that of the - company, and in such case its contractual obligation, regardless of tbe loss, was the same after the loss as before the loss — to pay at Los Angeles to the designated person the amount of money received by it — and that the accused, within the meaning of the statute, did mot receive the money, did not obtain it, until the company’s draft at Los Angeles was delivered to him and was negotiated or cashed by him, or at least not until the draft was delivered to him, for until then he had not received, acquired, or obtained anything. It is to illustrate and support such proposition that the cases of defendant are cited. In the prevailing opinion it is said that in some of the cases cited by him it did not appear that the question of agency was involved. Of course not. I do not think it is here involved. Tbe question here is not one of agency, but one of, Where did tbe accused obtain the money? No case is cited involving facts or a situation similar to those here involved which holds that the telegraph company became the agent of the sendee or of the person to whom the money deposited was to be transmitted. Because of the cases holding there is an agency under a consignment of goods to a carrier for transportation and that the carrier becomes the agent of the consignee, the conclusion is reached that the telegraph company here must have been or was the agent of the accused. For the reasons already stated, and because of entirely different facts and .of an entirely different situation, I think such a conclusion is not justified, and, because the claimed agency may exist in the one instance, it does not follow that it existed in the other.

I have endeavored to point out that transmitting money by telegraph is not analogous to consigning goods or chattels to a common carrier for transportation. However even on the theory of agency, I think there is no analogy. In the one instance, the carrier becomes the agent of the consignee; but, in transmitting messages, it is held by some courts (Des Arc O. M. Co. v. Western Union T. Co., 132 Ark. 335, 201 S. W. 273, 6 A. L. R. 1081) that the telegraph company, as between the sender and the sendee, is the agent of the sender and not of the sendee, and by others (Eureka C. M. v. Western Union T. Co., 88 S. C. 498, 70 S. E. 1040, Ann. Cas. 1912C, 1273) that as between the sender and the sendee the telegraph company is not the agent of either, but is an independent contractor, and liable to either who suffers injury as the proximate result of a breach or neglect of duty. Thus, if the first view be taken, the telegraph company becomes the agent of the sender, and, if the other view be adopted, it is the agent of neither the sender nor of the sendee. Because the accused wired the accuser to send him money no more'made the telegraph company the agent of the accused than of one who wrote to or wired another to wire him an answer to a certain communication or proposition. So, adopting the one view, the telegraph company was tbe agent of the sender, and, adopting the other, it was the agent of neither.

The theory of agency in case of a consignment of goods to a common carrier rests not on the fact that the consignee ordered the goods and shipment of them, but that the consignor, when he delivered them to the carrier for transportation, parted with the title and right of possession to and control over the property, and that such title and right passed to and vested in the consignee. On the theory of agency, the use of the telegraph more nearly is analogous to sending mail, where according to some of the authorities, the postmaster and the mail service is regarded the agent of the sender, but not of the addressee or sendee, although the weight of authority, as later will be seen, is that the post office or mail service is not the agent of either the sender or sendee. That the money and title thereto paid by the accuser to the telegraph company did not vest in the accused, but in the telegraph company, the cited case of Burton v. United States, 196 U. S. 283, 25 S. Ct. 243, 49 L. Ed. 482, is, I think, pertinent. There a real estate company in Missouri sent Burton, in Washington, D. C., its check drawn on a bank in Missouri. Burton deposited the check in á bank at Washington and was there given credit therefor on his account. The check in due course was forwarded by the Washington bank to the Missouri bank, where it was paid. The question was, Where did Burton receive the money? It was the theory of the government that he received it in Missouri; that when he indorsed the check and deposited it in the Washington bank that bank became his agent for the collection of it, and on the theory of such agency payment to the Washington bank in Missouri was payment to Burton, and hence it was contended by the government that the prosecution was properly laid in Missouri. The federal District Court held with the prosecution. The Supreme Court, in reversing the judgment, held that there was no agency between Burton and the Washington bank, and that no agency was involved; that when he took his check.to the bank and the bank received it and placed tbe amount to bis credit tbe relation of creditor and debtor between them was created, and not that of principal and agent; that a deposit made in a bant of money, or of drafts or checks received and credited as money, title to tbe money, checks, and drafts vested in and became tbe property of tbe bank with an implied contract on its part to pay an equivalent amount when called on so to do.

Tbe case is important as illustrating not only tbe want of tbe claimed agency, but also as tbe place where tbe money was paid and obtained, tbe place where Burton received tbe check and deposited it to bis credit. To tbe same effect is tbe cited case of State v. Smith, 162 Iowa, 336, 144 N. W. 32, 49 L. R. A. (N. S.) 834. Other cases cited by the defendant in principle also show and illustrate that tbe accused here received, obtained, tbe money in Los Angeles and not in Logan, and especially tbe cases of People v. Steffner, 67 Cal. App. 1, 227 P. 692; People v. Ballas, 55 Cal. App. 748, 204 P. 401; State v. Boy, 155 La. 238, 99 So. 205. And, applying tbe principle or rule therein announced, I think it is clear that tbe accused did not obtain .the money until be received tbe draft at Los Angeles and negotiated or cashed it, or at least not until be received tbe draft. Suppose after tbe money was paid to tbe telegraph company at Logan by tbe accuser, and before the company’s draft was issued or tbe money paid to tbe accused, a complaint‘bad been filed as here; could it be contended that tbe commission of tbe offense was then complete, that tbe possession of tbe money in tbe bands of tbe telegraph company, was tbe possession of tbe accused, and that be thereby acquired it, obtained it, just as though it bad there been paid over to him in person? Or suppose tbe accuser, before tbe draft was issued or money paid by tbe telegraph company, bad for any reason countermanded bis direction and demanded a repayment of tbe money to him, with tbe result that tbe draft was not issued nor any money paid to tbe accused; could it be contended that tbe accused possessed, acquired, or obtained anything? Or suppose tbe accuser bad deposited with or paid money to a bank at Logan and caused it to wire to a bant at. Los Angeles to pay the accused an equivalent amount, and the bank at Los Angeles issued its check or draft to the accused; could it be contended that the accused possessed, acquired, or obtained anything until he received the check or draft? Could it in such case be contended that the Logan bank became the agent of the accused and that the money paid to it by the accuser became the property of the accused; that the title thereto and the right of possession and control over it passed from the accuser to the accused? No one would hardly contend that; and yet it seems to me such a situation is quite analogous to that here.

It is also claimed that where a draft is mailed to the accused, if received and negotiated or cashed by him, the offense is complete where the draft addressed to the accused was deposited in the mail. In the first place we have no such situation. In the next place such a contention is made largely because of the case of Commonwealth v. Wood, 142 Mass. 459, 8 N. E. 432. It there was held.that delivery of a draft took place upon its deposit in the post office, and that such delivery determined the jurisdiction where the prosecution should be brought. The reason given therefor was that when the accuser deposited the draft “in the post office it passed out of his control and into the control of the defendant, and the postmaster became the agent of .the defendant to forward the letter (containing the draft) to him.” Such holding was based on the authority of Reg. v. Jones, 4 Cox C. C. 198. But the contrary was held in Reg. v. Holmes, 12 Q. B. D. 23, where a draft was sent from France to England; the court deciding that it had jurisdiction as the money was paid in England. I think the weight of authority on the subject is as stated in Bates v. State, supra, that — -

“The crime of obtaining money by means of false pretenses is committed where the money is obtained, and hence the court has no jurisdiction where it is shown that defendant procured a draft to be sent to and paid by a bank outside the state.”

To the same effect are the cases of State v. Hudson, 13 Mont. 112, 32 P. 413, 19 L. R. A. 775, and People v. Rathbun, 21 Wend. (N. Y.) 509, tbe latter being an exhaustive treatise on tbe subject. In 1 Mechem on Agency, § 41 (2d Ed.), tbe author while stating that carriers, express companies, and some other quasi public companies, in the conduct of the business, may become agents therein for another, yet observes a distinction as to such public instrumentalities as the mail and telegraph. In holding that the latter usually are not agents, he says:

“Tire distinction in the case of a governmentally conducted institution like the post office is not difficult. And in the case of the telegraph, though the authorities are not uniform, the tendency of the more recent cases is to regard it not as the agent of one who undertakes to deal through its instrumentality, hut as a public institution undertaking to serve all who employ it, and liable for its own negligence or default.”

And the weight of authority cited by him is to the effect that a telegraph company is, not an agent even as to the sender, but is an independent' principal or contracting party.

Had the accuser sent his check to the accused drawn on a Los Angeles bank, it is clear that no funds or money thereby would have been transferred from him to the accused, or that title to any funds or money passed out of the accuser and into the accused, either when the cheek was issued or received by the accused, and that the latter acquired no money until he had negotiated the cheek or deposited it or cashed it. It can make no difference had the accuser drawn a cheek on a bank at Logan. Had he done so, again no title to any funds or money passed out of him and into the accused, either when thq cheek was issued or received. In such respect, what difference does it make if the instrument be a draft instead of a cheek? When it is observed that the issuing of a check or draft does not thereby transfer any money or funds and does not even operate as an equitable assignment of funds or money, it at once is apparent that the case of Commonwealth v. Wood, supra, holding that the place where a draft was deposited in the post office determined the place where the accused obtained the money has no foundation either in law or in logic. As well could it have been said in the Burton Case, where the checks and draft were by the realty company deposited in the post office in Missouri, that Burton in Missouri received and obtained tbe money, and hence the prosecution was properly brought in Missouri, but the Supreme Court of the United States held against such a contention. And the . numerous cases cited by the defendant show that in a charge of obtaining money by false pretenses, where the money as here was received by the accused by means of a draft or check, the place where he obtained the money was where he cashed or negotiated the check or draft or deposited it to his credit.

The gravamen of the crime is obtaining the property described in the information or indictment. The statute, like every criminal statute, must receive strict construction. In pursuance of such view, the proof must show the obtaining of the particular property so described, or some part of it. And, where the charge is the obtaining of money, the proof must show that money as such passed from the hand of the defrauded person to that of the accused (State v. Bates, supra), not that the delivery may not be made to or through another designated by the accused for such purpose, but that the title, right of possession, and control, .nevertheless must be as full and complete in the accused as a delivery to him in person would be. The accused, of course, received money, but he received it at Los Angeles. He received it on the draft and not until after the draft was when the draft' was delivered to him, and had he then been issued and delivered to him. Had the transaction • ended arrested, the accused* could have been prosecuted for obtaining the draft, a chose in action, by false pretenses. But such charge, it is clear, would have to be brought in Los Angeles, where the draft was issued and delivered to bfm where he obtained it. In such ease it is plain the telegraph company was not the agent of the defrauded person or of the accused. Though regarding the company as either such an agent or as a principal, still the draft, nevertheless, was issued and delivered to the accused at Los Angeles and was there received by him. Up to that time I do not see how be could have been prosecuted for obtaining money, for tbe authorities generally bold that an allegation of obtaining money is not satisfied by proof of obtaining evidences of money indebtedness or orders to pay money. At that stage of tbe transaction all that tbe accused could have been prosecuted for was obtaining the draft by false pretenses. But as soon as be negotiated or ca&hed or deposited tbe draft to bis credit the offense of obtaining money, and not until then, was complete; and, as it appears to me, tbe last act necessary to complete such offense was committed in California and not in Utah. And it is only by indulging not a presumption of law, but a mere legal assumption or an untraversable fiction of law of an unwarranted agency that tbe court below bad jurisdiction. I say untraversable, for on tbe fact that tbe accused wired tbe defrauded person to send money by telegraph tbe legal assumption of agency is regarded as conclusive and not allowed to be traversed. While legal assumptions or fictions of law are sometimes indulged to give tbe court jurisdiction, Still I do not think they ought to be indulged against tbe accused in a criminal action.

■ In tbe information it is alleged that tbe accused in Utah devised means by false pretenses “to obtain and get into bis custody and possession money of C. M. Hammond” with tbe intent to defraud him, and sent from Los Angeles a telegram to C. M. Hammond, at Cache county, Utah, forging tbe name of Hammond’s son on the telegram, and pretending that it was sent by bis son, and requesting C. M. Hammond to telegraph bis son $142, and C. M. Hammond, relying on tbe telegram, “delivered to tbe Western Union Telegraph Company at its office at Logan, Cache county, Utah, as requested by tbe said forged telegram, and as tbe agent of tbe said defendant, tbe said sum of $142,” etc. On tbe evidence adduced tbe defendant requested tbe court to charge tbe jury:

“That if you believe from the evidence that the money, if any, was delivered to and received by the defendant in Los Angeles, Cal., then you are instructed that this court is without jurisdiction, and your verdict should he for the defendant.”

The court refused the request. Nowhere did the court charge the jury that to convict the defendant a finding was necessary that he obtained the money in Cache county, Utah, and not in California. Nor did the court charge or. direct the jury that the telegraph company was the agent of the defendant, or that payment or delivery of the money to it by C. M. Hammond was payment or delivery to the defendant, or that its possession was the defendant’s possession. What legal status or ' relation, if any, was created between the telegraph company at Logan and the accused, the jury was not advised. As near as the court came to the matter was by an instruction charging the jury that all persons concerned in the commission'of a crime, whether they directly committed the act or aided and abetted in its commission, are principals, and:

“So that in this case if the jury do' not find heyond a reasonable doubt that the defendant sent the telegram in question, but do find beyond a reasonable doubt that at the time the defendant received the money from the telegraph company he knew that the false and fictitious telegram had been sent by some other person with intent to cheat and defraud the witness Hammond, and the defendant received the money from said telegraph company for the purpose and with the intent of aiding and abetting some other person in perpetrating such fraud upon the witness C. M. Hammond, and thereby obtained his property by false pretenses, then you may find the defendant guilty, but, unless you so find, you should find the defendant not guilty.”

From tbis charge it is thus seen that the court did not submit the case to the jury on the theory of the state that the telegraph company was the agent of the defendant, and that a delivery of the money to it at Logan by C. M. Hammond was a delivery to the defendant, and that hence the money was there obtained by him. That the defendant’s refused request stated the law that, if the money “was delivered and received by the defendant in Los Angeles,” etc., the Utah court was without jurisdiction, cannot be doubted. The only ’ ground which would justify a refusal of such a request is that there was no evidence in the record tending to show that the money was delivered or received in Los Angeles, and that the evidence so conclusively showed, either as matter of fact or by operation of law, that it was delivered to and received by the defendant in Utah as not to permit the jury, even in a criminal case, to find or infer to the contrary, or even to have a reasonable doubt concerning it. If the request was refused on such ground, then why did not the court tell the jury that the telegraph company at Logan was the agent of the defendant, and that a delivery of the money there by C. M. Hammond to it was a delivery to the defendant, and that by reason of such delivery the defendant then and there acquired and obtained the money, and that the jury as matter of law were required to so find, and were not permitted to have even a reasonable doubt about it? But this the court did not do, either in substance or effect, but, as is seen, gave an instruction that, if “at the time the defendant received the money from the telegraph company,” he knew the telegram which had been sent was false and fictitious and sent to cheat and defraud C. M. Hammond, and the defendant “received the money from the telegraph company” to aid some other person to perpetrate a fraud on C. M. Hammond, etc., then the jury were directed that they might find the defendant guilty; otherwise not guilty. By that charge what meaning did the court convey to the jury as to the place “the defendant received the money from the telegraph company”? Is it not clear from the company at Los Angeles. The record shows he there physically and actually received it “from the telegraph company” and received no money physically or otherwise “from the telegraph company” at any other place. At least on the record and the charge, unless otherwise directed or cautioned, the jury was likely to regard the phrase “from the telegraph company” to mean the company at Los Angeles where the money was physically received by the defendant, or that it made no difference whether from the company, at L'os Angeles or at Logan. Thus by refusing the defendant’s request, and by charging the jury as was done, the undoubted thought was conveyed to the jury that they properly could convict the defendant, though the money was delivered to and received by bim at Los Angeles.

I thus think the court had no jurisdiction of the offense, and, at least, that the court erred in refusing the defendant’s request, and that the judgment of the court below should be reversed.  