The appellant and a confederate were convicted of obtaining money under false pretenses, a crime denounced by Section 7258, C.G.L., 1927 (817.01, Florida Statutes, 1941).
Inasmuch as the questions presented for decision by the Court challenge the sufficiency of the evidence to establish "a false representation of a past or present existing fact" and question the propriety of the Court's denial of two instructions bearing out that theory we will, at the outset, give a brief history of the transaction which gave rise to this prosecution.
The appellant and his companion entered into an agreement with Women's Benefit Association, a civic organization, providing for the "sale" by the former to the citizens of Pensacola of books containing stamps of various denominations. One fourth of the receipts was to be remitted to the association to be used in purchasing equipment for a hospital for tuberculars and three fourths were to be retained by appellant and his companion to pay for their services and to defray the costs of the enterprise. The stamp books were to *Page 398 be delivered by the association to the two defendants from time to time as their supply became diminished from sales so that the sponsor could keep accurate account of the receipts. To carry out the plan the appellant and his associate employed young boys to deliver the books to purchasers interviewed over the telephone.
In furtherance of this apparently laudable project many sales were made but we will confine our observations and discussions to the transaction between the appellant and a man from whom he was charged with having obtained money in violation of the statute. He called the prospective donor on the telephone, gave an assumed name, stated that the hospital was much in need of a food conveyor and asked him to buy one of the books, giving the assurance that all of the money paid for it would be expended for this worthy purpose. The person called remarked that he would not contribute if any of the money was to be used otherwise. He was told by the appellant that all services, including those of the messengers, were being donated and that money was being collected in this manner under the sponsorship of the Women's Benefit Association. When the appellant gave the assumed name over the telephone he added "of the Naval Air Station." Not only was the appellant's statement about his services without charge untrue, but the messengers were actually receiving compensation for their errands. Evidently, his connection with the air station was fictitious.
The State's version of the affair as we have related it in brief was disputed by the defendants who offered no testimony, save their own, but there was ample evidence to convince the jury that this was the correct account of what transpired.
In a decision of this Court, Clifton v. State,
At the time of this conversation there was in existence the agreement providing for the retention of seventy-five per cent by the solicitors and the payment of only twenty-five per cent to the hospital.
The only reasonable construction of the representations of the apellant is that he was then collecting moneys under an arrangement with an organization of women in the community and that all funds were being and would be used for the purchase of equipment for a hospital when he well knew that a small portion was being delivered to the sponsor for that purpose. There can be no question that it was made with the intent to defraud because he was told by the donor that the latter would not contribute unless all of his donation would be used for the institution. After receiving the pledge that no part of it would be otherwise applied the donation was made and it was because of the appellant's statements that the prosecuting witness finally parted with his money. *Page 400
This set of facts thoroughly justified the verdict of guilty. We have not emphasized the use by the appellant of an alias or the surreptitious arrangement made with the printer to deliver additional books without the knowledge of the sponsor because we have tried to confine our remarks principally to the one element of the offense, namely, the misrepresentation of a past or existing fact, however, these circumstances do show the background of a transaction which was indubitably fraudulent.
While it is true, as appellant urges, that proof of a mere false promise is not sufficient to convict one of violating the statute, nevertheless, a verdict of guilty is justified when such promise "is accompanied by other false statements and representations." 22 Am. Jur., False Pretenses, Section 14; People v. Miller,
Affirmed.
BUFORD, C. J., BROWN and SEBRING, JJ., concur.