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Clark v. State

Supreme Court of Arizona

May 1, 1939

LAURA PEARSON SHEPLEY CLARK, Alias MRS. L. P. S. CLARK, Alias LEO CLARK, Alias LAURA P. SHEPLEY, Appellant,
v.
THE STATE OF ARIZONA, Respondent

APPEAL from a judgment of the Superior Court of the County of Pima. Wm. G. Hall, Judge. Judgment reversed.

Mr. Kenneth S. Scoville and Mr. V. Clare Dodd, for Appellant.

Mr. Joe Conway, Attorney General, Mr. W. E. Polley and Mr. Charles Bernstein, His Assistants, for Respondent.

OPINION

Page 1078

[53 Ariz. 418] McALISTER, J.

One Laura Pearson Shepley Clark was accused by the county attorney of Pima county by information filed April 14, 1938, of the crime of "Confidence Game, a felony," and from a judgment of conviction and the denial of her motion for a new trial, she has appealed.

The reporter's notes were not transcribed, so the record here does not include the evidence. The assignments challenge mainly the sufficiency of the information, hence it will be well to reproduce that pleading. It reads as follows:

"In the Name and by the Authority of the State of Arizona, Laura Pearson Shepley Clark, alias Mrs. L. P. S. Clark, alias Leo Clark, alias Laura P. Shepley, on this 14th day of April, 1938, is accused by the county attorney of and for the county of Pima, state of Arizona, by this information of the crime of Confidence Game, a felony, committed as follows, to-wit:

"The said Laura Pearson Shepley Clark (omitting aliases here and hereafter) on or about the 14th day of September, 1936, and before the filing of this information, at and in the county of Pima, state of Arizona, did then and there knowingly, willfully, unlawfully [53 Ariz. 419] and feloniously commit the crime of obtaining a valuable thing (to wit, one negotiable instrument of the value of Fifty Dollars ($50.00) lawful money of the United States of America) from one Harry H. Fleming, with intent to cheat and defraud, by means of false and fraudulent representations, statements and pretenses, a felony, committed as follows, to wit:

"That the said Laura Pearson Shepley Clark on or about the 14th day of September, 1936, at and in the county of Pima, state of Arizona, did then and there knowingly, willfully, unlawfully, and feloniously and with intent to cheat and defraud one Harry H. Fleming, falsely and fraudulently

Page 1079

represent, state and pretend to the said Harry H. Fleming that there was then and there on specific deposit in the Valley National Bank in the City of Tucson, county of Pima, state of Arizona, the sum of several million dollars, lawful money of the United States of America, which said money was on deposit in the said Bank aforesaid as and for payment of and for certain gold bullion treasure which she, the said Laura Pearson Shepley Clark had found, and that the said sum of money then and there in said Bank as aforesaid was to be distributed forthwith by said Bank to the said Laura Pearson Shepley Clark, the said Harry H. Fleming and numerous other persons who had advanced money and other articles of value to the said Laura Pearson Shepley Clark and that some additional money was needed by the said Laura Pearson Shepley Clark then and there to defray expenses of stenographic and notary fees incident to the drawing up of documents providing for the distribution of the said money then and there on deposit in the said Bank as aforesaid to the said Laura Pearson Shepley Clark, the said Harry H. Fleming and said numerous other persons as aforesaid, and that the said documents were to be drawn up and prepared immediately, and that the said distribution of the said money would be made as aforesaid immediately, and that if he, the said Harry H. Fleming would thereupon advance to her, the said Laura Pearson Shepley Clark, the sum of Fifty Dollars ($50.00) lawful money of the United States of America, or give her his personal check for the same, for the purpose of defraying the [53 Ariz. 420] expenses of drawing up and preparingthe documents aforesaid, that the said Harry H. Fleming would then and there be reimbursed the said advance of Fifty Dollars ($50.00) together with a substantial sum of money many times the amount of the said Fifty Dollars ($50.00) advanced, all out of the said money then and there on deposit in the said Bank as aforesaid; whereas in truth and in fact the said representations, statements and pretenses so made as aforesaid by the said Laura Pearson Shepley Clark to the said Harry H. Fleming were then and there in all respects utterly false, untrue, and fraudulent at the time of making thereof, and the said Laura Pearson Shepley Clark then and there well knew the said representations, statements, and pretenses so made as aforesaid by the said Laura Pearson Shepley Clark to the said Harry H. Fleming, were then and there in all respects utterly false, untrue, and fraudulent at the time of making thereof;

"And the said Harry H. Fleming then and there believing the said false and fraudulent representations, statements and pretenses so made as fraudulent by the said Laura Pearson Shepley Clark to be true, and the said Harry H. Fleming relying upon the said false and fraudulent representations, statements, and pretenses as aforesaid, and being deceived thereby, was induced by reason of the said false and fraudulent representations, statements, and pretenses, so made as aforesaid, to deliver and did then and there deliver to the said Laura Pearson Shepley Clark his personal check in the sum of Fifty Dollars ($50.00) lawful money of the United States of America, drawn on the Southern Arizona Bank & Trust Company payable to the order of Mrs. L. P. S. Clark, and the said Laura Pearson Shepley Clark did then and there obtain a valuable thing, to-wit: one personal check in the sum of Fifty Dollars ($50.00) aforesaid, from the said Harry H. Fleming, which said Valuable thing, to-wit: one personal check in the sum of Fifty Dollars ($50.00) aforesaid, was the property of the said Harry H. Fleming, and the said Laura Pearson Shepley Clark then and there with intent to cheat and defraud the said Harry H. Fleming did then and there cheat and defraud [53 Ariz. 421] the said Harry H. Fleming and negotiated forthwith the aforesaid personal check for the sum of Fifty Dollars ($50.00) lawful money of the United States of America, contrary to the form, force and effect of the statute in such cases made and provided, and against the peace and dignity of the state of Arizona."

It is claimed first that the court erred in denying appellant's motion to quash the information for the reason that it does not state facts sufficient to constitute a public offense in that it charges her with obtaining from her victim, Harry H. Fleming, a valuable thing, to wit, his personal check on the Southern Arizona Bank in the sum of $50, when the fact is that a check in the hands of its maker has no value whatever. That it became valuable the moment it went into her possession does not, it is argued, mean ...


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