#### DAVIS *v.*UNITED STATES.

Criminal Law; Embezzlement; False Pretenses; Appeal and Error;. Joinder *of*Counts; Evidence; Judgments oe Foreign Courts; Sentences.

1. An indictment charging that the accused had procured a cheek from at woman upon the false representation that he had a contract withi a builder to obtain money for the latter to enable him to buy lumber in West Virginia, where it could be bought cheaper than in this District, and that if she would “invest” money with him, the-accused, she would receive large profits from her investment,—charges-the crime of obtaining something of value by false pretenses, and not the crime of embezzlement.

2. The rule in the Federal courts to the effect that in a criminal case a. general judgment upon an indictment containing several counts, and-*127a verdict of guilty on each count, cannot be reversed on error if any count is good and is sufficient to support the judgment, does not applj to a prosecution in which the indictment charges distinct and! inconsistent offenses, such as obtaining money by false pretenses and embezzlement.

3. Where a special instruction asked by the accused on trial upon an' indictment, the first two counts of which charged obtaining money by false pretenses and the other charged embezzlement, was to the-effect that if the jury found the accused guilty upon the first three-counts, they could not find him guilty on any other of the counts, and it appeared that the first two counts were in mind, and it was-intended to bring to the court’s attention the difference between the two sets of counts, so that the jury would receive such instruction as would prevent the bringing in of an inconsistent verdict,—it was *held*reversible error for the court to omit such an instruction.

4. In a criminal prosecution, it is not error for the court to refuse an: instruction asked by the accused to the effect that, because of an adjudication by a court of another jurisdiction, made several years before, that he was insane, and committing him to an asylum until restored to sanity, it must be presumed that he was insane at the time-of the commission of the offense for which he is being tried, and that the burden is upon the prosecution to overcome such presumption, where it does not appear from such adjudication that the-form of insanity from which the accused was then suffering was permanent in its character, and the evidence shows that the accused when about to be discharged from such asylum had escaped therefrom.

5. When the accused in a criminal ease was separately convicted upon two indictments, sentence under one of which was to begin upon the date of the ending of the sentence under the other, the reversal of the judgment of conviction under the latter indictment will not necessitate a reversal of the judgment under the other, as the suspended sentence will begin when the first sentence is out of the way, whether by lapse of time or reversal of judgment. (Following Harris v. *Lang,*27 App. D. C. 84, 7 L.R.A. (N.S.) 124, 7 A. & E. Ann.. Cas. 141.)

No. 2246.

Submitted March 8, 1911.

Decided April 5, 1911.

Hearing on an appeal by the accused from judgments of conviction of the Supreme Court of the District of Columbia, on* verdict, in prosecutions for obtaining something of value up on-false pretenses, and embezzlement.

*One judgment reversed and the other affirmed.*

*128The Court in the opinion stated the facts as follows:

This is an appeal [by John C. Davis] from judgments upon verdicts in the supreme court of the District, two indictments numbered respectively 26,689 and 26,690 having been consolidated for trial. The defendant was sentenced to eight years in the penitentiary under each indictment.

The indictment in No. 26,689, hereinafter denominated the McKeown indictment, contained eight counts. The 7th and •8th counts were withdrawn from the consideration of the jury, and, the government electing to stand upon the other six counts, *■a*verdict was had upon those counts. Sentence, however, was pronounced upon only counts 3 to 6, inclusive, as will hereinafter more fully appear.

The 1st count in this indictment states:

“That on the third day of March, in the year of our Lord one thousand nine hundred and nine, and at the District aforesaid, one John C. Davis, late of the District aforesaid, unlawfully, knowingly, designedly, and with intent to defraud, did falsely pretend and represent to one Nellie McKeown that a ■certain Thomas A. Owen was then engaged in the business of ■contracting and building in the city of Washington, in the District aforesaid, and that, in the conduct of said business, he, the said Thomas A. Owen, was then constructing an apartment house in the said city; that for the purpose of constructing said apartment house a large quantity of lumber was needed by him, the said Thomas A. Owen; that the lumber so needed ■could then be purchased by him, the said Thomas A. Owen, in the State of Virginia at much lower prices than in the District of Columbia aforesaid, but that, to so obtain said lumber .at the lower prices aforesaid, it was necessary that the same should be paid for with cash at the time of its purchase by him, the said Thomas A. Owen; that he the said Thomas A. Owen, was desirous of so purchasing said lumber in the State of Virginia, to be used in the construction of said apartment house; and that he, the said Thomas A. Owen, had theretofore entered into a contract with him, the said John 0. Davis, whereby he, *129the said John 0. Davis, should procure the money necessary to purchase the said lumber in the manner and for the purpose aforesaid; that, by reason of the low prices at which said lumber was to be so purchased, as well as by reason of the terms of said contract, persons who would invest money with him, the said John C. Davis, for the purpose of purchasing said lumber in the manner aforesaid, would receive large profits upon their said investment.

“By color and means of which false pretenses and representations aforesaid, the said John C. Davis did then and there unlawfully, knowingly, designedly, and with intent to defraud, obtain from the said Nellie McKeown a certain instrument of writing in the form of a bank check, of the tenor following, that is to say:

Cincinnati, Ohio, March 3d, 1909.

“No..........

“Fifth.....Third National Bank.

“Pay to the order of W. E. Sisson five hundred 100 dollars. “$500.

N. McKeown.

—and which said instrument of writing was then and there the property of the said Nellie McKeown and of the value of $500, and which said instrument of writing the said Nellie McKeown, relying upon the false pretenses and representations aforesaid, which she believed to be true, and being deceived thereby, did then and there deliver to him, the said John C. Davis.” The count then proceeds to declare in explicit terms the falsity of each of the above representations from the defendant to Miss McKeown.

The 2d count differs somewhat from the 1st, but the view we take of the 1st renders it unnecessary to consider those differences.

The 3d count charges that the $500 Sisson check mentioned in the 1st count came into the care and possession of the de*130fendant as the agent of Miss McKeown, and that, while acting as such agent, the defendant embezzled the same.

The 4th, 5th, and 6th counts charge the defendant with embezzling three checks, for $1,000, $400, and $100, respectively,, all of which are mentioned in the 2d count of the indictment.

An inspection of this indictment shows, quite clearly, we-think, that some doubt must have existed in the mind of the-pleader as to whether the offense that had been committed was-obtaining something of value by false pretenses, with intent to defraud,—in other words, the offense of “false pretenses,—or the offense of embezzlement. Not being certain, the pleáder,. as a matter of precaution, *intended*to charge both offenses in the two sets of counts. This evidently was the view of counsel for the defendant, for before the case was submitted to the jury,, he asked that the government elect upon which counts it would stand. He also asked and obtained an instruction requiring the jury, before convicting the defendant on either the 3d, 4th, 5th, or 6th counts, to find that he received the checks mentioned therein as the attorney or agent of Miss McKeown. At the same time counsel for the defendant proffered the following request: “If you find the defendant guilty upon the first three counts, or any of them, of the said indictment, you may not find him guilty on any other of the counts thereof relating to the subject-matter of such first three counts respectively.” To the refusal of the court to grant this request, an exception was duly noted.

After verdict had been rendered upon the first six counts, as above noted, the defendant filed motions for a new trial and in arrest of judgment, one ground being that the verdict is inconsistent and contradictory, “because the jury by its verdict found the defendant guilty .of both obtaining by false pretenses and embezzling the same property, as in and by the first six counts of the indictment described.” These motions were overruled, and the defendant reserved his exception. The court in overruling the motions said: “The jury having found the defendant guilty under both classes of counts, it is said the verdict is too inconsistent to be.allowed to stand. It is said, *131as to the same money, the jury has found, first, that it had become the money of the defendant by reason of his false pretenses, and, second, that after that event it was still the money of the original owner, and as such converted by Davis to his own use, or in other words, embezzled. If this be a true statement of the situation, it is difficult to see why the judgment should not be arrested.” The court then proceeded to say that a critical examination of the so-called false pretenses counts shows “that they are not ordinary counts for obtaining money under false pretenses, but set up that the defendant, by various false pretenses therein set forth, obtained possession of the money or checks of Miss McKeown, not as and for his money, nor to be used as his own money, but to be held and used by him as her agent, in her interest, and for her benefit. That is all those counts charge with reference to the point we are considering. All the facts thus charged are perfectly consistent with the verdict finding that the defendant, after he had received this money as Miss McKeown’s agent, still held it as hers, and embezzled it. The verdict cannot be taken as establishing anything except what is alleged. It cannot be supposed that the jury were required to find, under the false pretense counts, any devesting of the title.” The court concluded by adopting the view of counsel for the government, that the so-called false pretenses counts charge no offense known to the law, and hence arrested judgment upon those counts and rendered judgment upon the four remaining counts.

*Mr. Henry E. Davis*for the appellant.

*Mr. Clarence R.*Wilson, United States District Attorney, and *James*iff. Prodior, Assistant, for the appellee.

Mr. Justice Nobb

delivered the opinion of the Court:

Count 1 must stand or fall upon the averments found therein. The question is, had this been the sole count in the indictment, and a demurrer had been interposed thereto, what would have *132been the ruling of the court? Under sec. 842 of the Code [31 Stat. at L. 1327, chap. 854] the crime of “false pretenses” is made- out when it is shown that a person “by any false pretenses, with intent to defraud, obtains from any person anything of value,” etc. This count alleges that the defendant, with intent to defraud, falsely pretended and represented to Nellie McKeown that one Owen was then engaged in the business of contracting and building in this city; that he needed a large quantity of lumber; that this lumber could be purchased by said Owen in the State of Virginia at much lower prices than in the District of Columbia, but that to do so cash was required; that Owen was desirous of so purchasing lumber; that he had theretofore contracted with the defendant to procure the money necessary to purchase the said lumber as aforesaid; “that, by reason of the low prices at which said lumber was to be so purchased, as well as by reason of the terms of said contract, *persons who would invest money with him, the said John 0. Davis, for the purpose of purchasing said lumber in the manner aforesaid, would receive large profits upon their said*investmentThese representations are set out as the efficient inducement to the person defrauded to part with the $500 check. Giving the words employed their natural interpretation, we think the inference dedueible therefrom to be that the relation of borrower and lender, and not that of principal and agent, was alleged to exist between the defendant and Miss McKeown.

Owen, according to the indictment, was a builder, needed lumber, and could himself purchase it in Virginia for cash much cheaper than in the District of Columbia. To enable him, the said Owen, to so purchase lumber, he entered into a contract with Davis, Davis agreeing to procure the money for Owen’s use. All this he represented, according to the indictment, to Miss McKeown. He then told her that, by reason of the contract he had with Owen, which it must be presumed was advantageous to Davis, if she would “invest money with him, the said John C. Davis,” she would receive large profits upon her “said investment.” We see nothing in this language *133indicating that Davis was to receive money from Miss Mc-Keown as her agent. There is nothing indicating privity between Owen and Miss McKeown, bnt, on the contrary, such an inference is repelled by the statement that the profits were to result from the contract between Owen and Davis. We are therefore impelled to the conclusion that this count charges the defendant with having obtained from Miss McKeown $500 by means of false pretenses, and with intent to defraud her.

The rule in the Federal courts to the effect that in a criminal case a general judgment upon an indictment containing several counts, and a verdict of guilty on each count, cannot be reversed on error if any count is good and is sufficient to support the judgment *(Claassen*v. *United States,*142 U. S. 140, 35 L. ed. 966, 12 Sup. Ct. Rep. 169, and *Evans*v. *United States,*153 U. S. 584, 38 L. ed. 830, 14 Sup. Ct. Rep. 934, 9 Am. Crim. Rep. 668), does not apply to the situation in this case, for here the verdict was upon counts charging distinct and inconsistent offenses. Had there been a defective count charging embezzlement among several good counts charging the same offense, or a defective count in false pretenses among several good counts charging that offense, and the verdict had been upon one set of counts,—namely, either upon those in embezzlement or upon those in false pretenses,—the ruling in the *Olaassen*and *Evans Cases*would have applied.. Com. v. *Lowrey,*158 Mass. 18, 32 N. E. 940. The verdict', of the jury in the supposed case would not be an inconsistent' verdict, as was the verdict in the present case. It is apparent,, as the trial court pertinently suggested, that the “verdict under the embezzlement counts negatives one essential fact in the-crime of procuring money by false pretenses, namely, the devesting of the title originally.” The verdict, therefore, upon the 1st and 3d counts was absolutely inconsistent, as under the-1st count the jury found that Miss McKeown became devested, of the title to the $500 check, while by their verdict in the 3d. count they expressly found that she did not. It is not the province of the court to conjecture which theory the jury would! have adopted had their attention been drawn to the matter-*134That is a question for their determination. For obtaining $35 or more by false pretenses the punishment may be three years imprisonment. The punishment of an agent guilty of embezzlement may be a fine of $1,000 and imprisonment for ten years. It therefore makes quite a difference of which offense a defendant is convicted.

While the proffered instruction which the court refused referred to the first *three*counts, it is apparent that the first *two*counts were in mind, and that it was intended to bring to the attention of the court the difference between the two sets of counts, to the end that the jury might receive such instruction as would prevent the bringing in of an inconsistent verdict. In the light of what followed, we think it was reversible error for the court to omit such instruction.

The defendant introduced in evidence a record of the criminal court of New Hanover county, North Carolina, showing that at the March term, 1892, of the said court, in the case of the State against the said defendant, the question was submitted to the jury, “Is the defendant now insane?” to which the jury responded, “Yes;” that thereafter the court, on the 26th of April, 1892, rendered judgment upon said verdict that “the said defendant, John C. Davis, is now insane,” and “that he be committed to the North Carolina Insane Asylum * * * *until he is restored to*sanity, when the same shall be certified to the solicitor of the proper district in order that proper steps be taken to secure the appearance of the said defendant to answer the original indictment in this action.” It further appeared from the evidence adduced by the defendant, that upon the rendition of said judgment the defendant was committed to said asylum, “and there remained until early in the year 1901, at which time, when he was about to be discharged from said asylum, the defendant escaped therefrom, and was never thereafter returned.” The testimony in behalf of the defendant further tended to show that at the time of his reception at said asylum, and while so confined therein, he was of unsound mind, suffering from a form of insanity known as paranoea. Evidence was also introduced by the de*135fendant tending to show that he had ever thereafter been of unsound mind.

The evidence of the government, in rebuttal, tended to show that during the whole period the defendant was confined in said asylum and ever thereafter he was not insane, but was of sound mind.

Counsel for the defendant requested the court to instruct the jury that, because of the adjudication of insanity by the North Carolina court, the defendant must be presumed to have been insane at the time of the alleged commission by him of the offenses charged in the indictment before the jury, and that the burden was upon the government to overcome such presumption, by establishing, to the satisfaction of the jury beyond any reasonable doubt, that the defendant at the time of said alleged offenses had been restored to sanity and was then sane.

Upon this branch of the case, the court instructed the jury in part as follows: “There, instead of going to trial as he has here, a preliminary question was raised as to whether he was sane at the time, so that he could be tried. That is a course that may be taken. * * * Here, the case itself is being tried, and it will be for you to say, on the evidence, whether or not he is guilty by reason of insanity, and if you find that he is insane, that you return a verdict in the form of ‘Not guilty by reason of insanity.’ In North Carolina the other course was taken, and it was found that he was of unsound mind. There is nothing in the record of that judgment to show that the form of his insanity was, or whether it was of a permanent or temporary character, so that the judgment itself does not enlighten us. We have got to find out, as best we can, from the testimony here, as to his condition. But you are bound, I think, to take it as a fact, because it was so adjudged, and I give you that as the law, that he was insane at the time of that adjudication; but that does not amount to a finding that he had any permanent type of insanity,—only that he was then insane. * * * If you find from all the testimony that the type of insanity he had down there was permanent in its character, then the presumption of continuation attaches, *136and it would be like any other piece of evidence-;- it would have to be removed by proof. It would be presumed that he continued to be insane, until the evidence satisfies you beyond a reasonable doubt, that he had been restored to sanity.” It is unnecessary to quote further from the charge.

The North Carolina court adjudged the defendant *then*insane. That the form of his insanity was not considered necessarily permanent is evident from the language of the court,, for he was to be detained until “restored to sanity,” when the proper officer of the State was to be notified. When “about to-be discharged from said asylum,” that is, when about restored to sanity, he escaped. We cannot assume from this record, .as requested by the defendant, that the form of insanity from which he was then suffering was of a permanent or continuing charácter, and unless it was of such a character the defendant was not entitled to the instruction asked. *Taylor*v. *Pegram,*151 Ill. 106, 37 N. E. 837; *Kirsher*v. *Kirsher,*120 Iowa, 337, 94 N. W. 846; *People*v. *Schmitt,*106 Cal. 48, 39 Pac. 204; Underhill, Crim. Ev. § 156; Wharton, Crim. Ev. 9th ed. ¶ 730; 12 Cyc. Law & Proc. p. 389. This was the-view of the trial court, and the instruction on this point was-correct.

It is insisted that, inasmuch as the sentence under indictment No. 26,690 was to begin upon the day of the ending' of the sentence on the judgment under the McKeown indictment, the judgment in the second case should also be reversed, there being no terminus from which the sentence under that indictment can be measured. This question is no longer an open one in this jurisdiction. *Blitz*v. *United States,*153 U. S. 308, 38 L. ed. 725, 14 Sup. Ct. Rep. 924; *Harris*v. *Lang,.*27 App. D. C. 84, 7 L.R.A.(N.S.) 124, 7 A. & E. Ann. Cas. 141. Punishment under the second sentence commences when the first sentence is out of the way; whether by lapse of time or reversal of judgment is immaterial.

The judgment in No. 26,689 is *reversed, and a new trial awarded.*

The judgment is *affirmed in No. 26,690.*