Brief Fact Summary. Defendant induced the complaining witness to agree to guarantee his indebtedness to another on a false representation of ownership. Defendant was convicted of obtaining property by false pretenses. The issue revolves around whether or not, under the statutory scheme, this constitutes an allegation a criminal act.
Synopsis of Rule of Law. A creditor who orally guarantees to pay the debt of another does not pass title to the debtor.
As a general rule, if a sentence is contrary to law, an appellate court will remand for resentencing.View Full Point of Law
Issue. Did the Defendant obtain any property from the Hub Lumber Company when he induced them to agree to pay his indebtedness to the Howard Cooper Corporation if he failed to pay it?
Held. No. Judgment is reversed and the action dismissed.
Under the applicable statute, any person who by false pretenses and with intent to defraud obtains or attempts to obtain from another person money or property can be punished for forgery. In addition, the making of a bill of sale, assignment, or mortgage of personal property, by any person other than the owner, for the purpose of obtaining money or credit to secure an existing debt shall be deemed a false pretense within the statutory meaning.
The indictment here does not charge a crime. Current case law defines “property” as worldly goods or possessions, tangible things, and things which have exchangeable or commercial value. This seems to indicate that such an intangible thing as credit was not considered by the legislature to be property.
This court has recognized that “property” under the statute must be something capable of being possessed and the title to which can be transferred. Therefore, the thing which the Defendant is charged with obtaining was essentially the benefit of the guarantee which the Hub Lumber Company gave the Howard Cooper Corporation. The benefit of the guarantee cannot be possessed and Defendant could not hold title to the benefit of the guarantee.
In this case, no written guarantee was ever given, just an oral one. The state’s public policy argument that the public is entitled to protection of the law against reprehensible conduct such as the circumstances at bar is well taken. However, this issue should be addressed to the legislature and not the courts.
Discussion. If the indictment had alleged that the Defendant obtained the signature of the company or its agent to a guarantee of his debt, then the issue here would be completely different.