partner could not be charged with obtaining money by false pretenses because an accounting is necessary to determine whether the taking was wrongful
How later courts described this case
- partner could not be charged with obtaining money by false pretenses because an accounting is necessary to determine whether the taking was wrongful
Written by the judges who cited it.
The opinion
Oliver, J.
(concurring specially) — I concur fully in the majority opinion and the concurring opinion of Judge Smith, but will make some reference to the dissenting opinion.
*857 It states this case is “a manifest failure of justice”; “the defendant, by false representations believed and relied upon by his inexperienced partner” obtained partnership funds; there was a “series of gross frauds”; if “the law must fold its hands * * * because of certain technicalities * * * justice will be denied”; “such a situation is a reproach to the law and to the courts”; “if hidebound precedents and unrealistic legal fiction stand in the way of punishment of frauds such as the record shows here, they should be swept aside.”
The foregoing and other language of like temper is based upon evidence for the prosecution only. Defendant’s plea of not guilty was a denial of the charge against him. In accordance with established rules the prosecution first proceeded with its case. When its case failed, defendant was discharged without the introduction of any evidence for him. Under the circumstances the trial court properly expressed no opinion upon the case. In ordering the directed verdict it stated: “Of course, the court is not determining here the facts. In other words, I presume, as indicated by counsel for the defendant, that their version of these transactions would be other and different from the version submitted by the State’s witnesses.” The complete statement of the trial court which covers about six printed pages is a thoughtful and dispassionate review of the questions involved in the case.
The dissent observes no such limitations. It finds the facts of the case, based upon the evidence of the prosecution only, and it proceeds to declare and publish that defendant was guilty of gross frauds. This novel procedure overlooks the important circumstance, recognized by the trial court, that because the prosecution failed, defendant had no opportunity to offer evidence of his version of the facts. Under such circumstances a finding defendant was guilty of the crime charged or of some other offense would appear not to be sound. There would seem to be no good reason which would justify a court in thus prejudging a case and branding a defendant.
There is a statement in the dissent, that the “situation is a reproach * * * to the courts * * Where, as here, the court merely declines to depart from an established rule of law, there *858 would seem to be no factual basis for such a charge. The dissent cites no authority sufficient to justify it.
The dissent states: “The joint-ownership theory * * * has too long protected thieves and embezzlers. The majority now extends its cloak to cheats.”
The statement relative to the protection of thieves and embezzlers is merely an assault upon the general rule discussed in the majority opinion, that a partner cannot be guilty of larceny or embezzlement of partnership funds. The other statement, “The majority now extends its cloak to cheats”, should not be understood as charging that the majority of the court is actually in league with cheats. The reader may be assured the dissent did not intend any such charge. Nor should the reference herein to vigorous language of the dissenting opinion be considered as implying that instrument should be classified as “caeoethes dissentiendi.”