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Perritt v. State9/23/2005
ive and cash checks as agent for his employer. It is not alleged in the information how or in what capacity Mayer held the money, or the relation if any he sustained to Freedman, nor is it alleged that the money so obtained was Freedman's money. Owens v. State, supra; Jacobs v. State, 31 Neb. 33, 47 N. W. 422; People v. Krummer, 4 Parker, Cr. R. (N. Y.) 217. The defendant was not charged with obtaining Freedman's money by false pretenses, but with obtaining money from Mayer by false pretenses. In view of the uniform holdings, under a statute similar to ours, that ownership is a material averment and must be proved as laid, it is difficult to understand how A. can be convicted upon an information which charges the obtaining of money under false pretenses from B. upon proof of ownership of the money in C. The issue tendered, if any, was that Mayer was the owner of the money. The proof was that Freedman was the owner. It is not alleged in the information that Mayer was the agent of Freedman, and that pursuant to authority of his principal he acted upon the false representations, and for that reason his agency or right to pay out money other than his own was not in issue. Proof of ownership in Freedman of the money obtained which was offered and submitted by the state was inconsistent upon the face of the information with ownership in Mayer as therein alleged, and, in the absence of allegations showing ownership in Freedman and the agency and authority of Mayer to cash the check with Freedman's money, must be considered and treated as proof of a separate and distinct crime. Such evidence disproved defendant's guilt of the crime as charged. No false pretenses other than those to Mayer are alleged or proven. He was not defrauded, for the money obtained did not belong to him, and upon the evidence in this case, if any one was defrauded, it was Cordove or Romero, and no false representations were made to either of them. The crime, if any was proven, was not the crime charged. It is not necessary to discuss the question as to whether proof alone of possession by Mayer of the money which defendant obtained would be prima facie sufficient to support the verdict if ownership were directly laid in Mayer. Upon the evidence the latter had nothing more than the mere naked possession (Owens v. State, supra), and it is sufficient to say that the proof is not limited to his possession alone, but upon the record it is undisputed that Freedman was the owner for whom Mayer was acting. There was more than a variance in the proof; there was a failure to prove the crime, if any, as charged, although proof was submitted tending to prove a separate and distinct crime and with the commission of which the defendant was not charged. The verdict is contrary to the evidence.
The judgment will be reversed, and the cause remanded for a new trial, or such further proceedings as may be deemed proper not inconsistent with this opinion.
[ ] In Lopez v. State, 788 P.2d 1150, 1152 (Wyo. 1990), we held:
In order to demonstrate a violation of ยง 6-3-407(a), the State had to establish the following elements beyond a reasonable doubt:
(1) the pretenses;
(2) their falsity;
(3) the fact of obtaining property by reason of the pretenses;
(4) the knowledge of the accused of their falsity; and
(5) the intent to defraud.
Miller v. State, 732 P.2d 1054 (Wyo.1987); Driver v. State, 589 P.2d 391 (Wyo.1979).
[ ] In Craver v. State, 942 P.2d 1110, 113-14 (Wyo. 1997) we held:
In Wyoming, convictions for the crime of obtaining property by false pretenses have been limited to misrepresentations of an existing or past fact. In D
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