Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1921-09-12
Supreme Court Decisions

OupI CillC Cuult UCOtolOliS
The following decision was
handed down by the supreme court
OF the state Of New Mexico in the
case of William G. Kelly, convicted
on charge OF obtaining money by
false pretenses.
In the supreme court Of the state
of New Mexico.
State of New Mexico, appellee,
VS.. William G. Kelly, appellant. No.
2423. Appeal from the district
court of Santa Fe county.
Statement of Facts.
William G.. Kelly was indicted
In the district court of Santa Fe
county for obtaining money by
false pretenses, and after trial and
conviction has perfected this APP
peal. The indictment alleged that
the appellant presented to the
board of loan commissioners for
redemption and refunding a bogus
or spurious bond No. 254 of the
county of Santa Fe and repre-
sented the same to be valid and
outstanding obligation of said
county. The bond in question was
admitted by the appellant on the
trial of the case In the lower court
to be counterfeit and the evidence
ss4tisfa ctorily establishes that it
was counterfeited from Santa Fe
county bond No. 1877.
Syllabus.
IA prosecution for obtaining
money by false pretense cannot be
predicated upon false testimony
given in suit in court for the re-
covery of money or property.
q. Chapter Of. Code 1915. which
makes the attorney general, the
state auditor and the state treas
urer, board of loan commissions
ers OF the state of New Mexico, and
invests such board with power to
ascertain and determine the debts
and liabilities Of the territory of
New Mexico. and the debts of the
counties thereof, which were valid
and subsisting on January 20,
1910, and which were assumed by
the state of New Mexico under the
constitution. and providing for the
pdyHltItS vi VA sum
debtedness by the issue and sale
of bonds, or otherwise, by such
board, does not confer judicial
power upon such board in con-
stitutional sense and such board
does not constitute a court, and a
finding or Judgment by such board
under such statute is not judicial
Judgment or decree. Such board
Is an agency created by the state
for the purpose of auditing, pass
ing upon and allowing claims
against the state under the statute,
and false pretense, can be predi-
Gated upon a claim presented to
such board where the facts war;
rant.
s. A duty to be performed Is
none the less ministerial because
the person who is required to per-
form 1t may have to satisfy him.
self OF the existence of the state of
facts under which he is given his
right or warrant to perform the
required duty.
L. What might be judicial
proceeding in determining contro-
versies between private individuals
Is not necessarily such where the
interests of the sovereign state are
involved. The state can adopt
whatever mode or method 1t elects
to determine whether 1t shall be-
come liable and discharge given
obligation. 1t can select whatever
agency 1t sees fit and proper to
pass upon the question and provide
that upon the determination OF
such agency claim shall be paid.
and the inquiry conducted by such
agency may be administrative or
judicial as the legislature elects.
5. The fact that an appeal is
provided for from the decision Of
the board OF loan commissioners
to the district court does not alter
nor change the character of the
proceedings.
6. False pretense may be estab-
lished by conducts and acts as well
as by words. written or spoken.
The presentation of bogus bond
to an agent of the state for re-
denfption is false pretense where
the parties SO presenting the bond
know that 1t is spurious.
Z. Wheresa duty is entrusted to
board composed of different in
dividuals. such board can act Of
ficially only as such In convened
session with the members or a
quorum thereof present. Held.
that there was substantial evidence
In addition to the record kept by
the board, of the fact that such
board, in passing upon the bond in
this case, did so in regularly con-
vened session with the members
thereof present.
8. Where a bogus bond Is pre-
sented to an agent of the state. au-
thorized to act in the premises. for
payment or refunding. by q letter
of transmittal,. there is no variance
because the letter refers to q terri
torial bond and the bond In question
was a county Indebtedness which
the state had assumed.
9, The admissions. statements
and declarations of an agent are
not admissible to prove agency.
There must be prima facie proof
Of agency before such declarations
or statements are admissible Tor
any purpose, but the fact OF agency,
when 1t rests in parol, may be es-
tablished on the trial by the testt-
mony Of the agent himself.
10. The existence of an agency
may be shown by or inferred from
circumstantial evidence. Held,
that there was sufficient evidence
in this case to warrant the jury In
finding that the Santa Fe bank In
nresenting the bond to the board