C. Stuart Beattie, for the plaintiff in error.

George Hunt, attorney-general, Joel M. Longenecker, state's attorney, and Edward E. Gray, assistant state's attorney, for the people.

SCHOLFIELD, C. J. Plaintiff in error was convicted of obtaining goods under false pretenses. The indictment contained several counts, but since the conviction was under the second count alone, no question arises in regard to the others.

One of the errors assigned is, that the court erred in overruling a motion to quash that count. Beyond question, the count is liable to criticism. Its statements are unnecessarily prolix, involved, and obscure. Nevertheless, we think it is therein charged, in substance, and with sufficient certainty to meet the requirement of our statute in regard to indictments for statutory offenses, that plaintiff in error, by falsely representing to one Pape, the agent of the H. C. Staver Manufacturing Company, that he owned $175 in money, then on deposit with the Security Loan and Savings Bank, which would be paid by that bank on his own order, induced said Pape to accept an order drawn by him on that bank, for $175, in payment for one buggy and two robes then negotiated to be sold to the plaintiff in error by said H. C. Staver Manufacturing Company, and in the hands of said Pape for the purpose of being delivered to the plaintiff in error upon plaintiff in error making payment therefor, and to deliver said buggy and two robes to said plaintiff in error as having been thereby paid for by said plaintiff in error, when in truth and in fact plaintiff in error did not then have $175, or any other sum, on deposit with the said Security Loan and Savings Bank, which would be paid by that bank on his order for the pay. ment of $175, as plaintiff in error well knew.

It is objected that two orders are described in the count as having been issued, and that it is only negatived that one of the orders was drawn against money on deposit whereby it could be paid. As we understand the allegations, this is a misapprehension. It is, we concede, alleged, but unnecessarily, that plaintiff in error represented that he would issue an order different from that set out supra, and that, instead of in fact doing as thus represented, he issued that order. There is no allegation that he actually issued an order as he represented he would.

It is also objected that the mere fact that plaintiff in error

drew an order on a bank where he had neither credit nor money is not, as the order here issued is characterized, "a false token" or "a false writing." But the gist of the offense here charged is the obtaining of the possession of the goods by the plaintiff in error, by falsely representing that he had money in the bank wherewith to pay an order drawn by him upon the bank for the amount due upon the goods, and delivering the order copied supra, as such order, when in truth and in fact, as he well knew, he did not have the money in the bank as represented. The other allegations as to the character of the order were superfluous. They neither add to nor detract from the material allegations, and are therefore to be disregarded, because they are surplusage: See Crim. Code, div. 1, sec. 96; 1 Starr and Curtis's Ann. Stats. 781; Smith v. People, 47 N. Y. 303.

It is contended that the evidence fails to show that the goods obtained were the property of the H. C. Staver Manufacturing Company, as alleged. We do not concur in this view. The evidence shows the negotiation of a sale of the property by an agent of the H. C. Staver Manufacturing Company to plaintiff in error, and the possession of the property by an agent of that company, to be delivered to plaintiff in error pursuant to such sale. Since possession alone tends to prove owner. ship (1 Greenl. Ev., sec. 34), we think, in the absence of evidence raising any question of title as alleged, this was sufficient.

The final objection is, that the evidence does not sustain the verdict. The evidence shows, beyond controversy, that plaintiff in error negotiated with the agent of the H. C. Staver Manufacturing Company for the purchase of the property described in the count, for cash, to be paid at the time of the delivery of the property; that he directed that the property should be sent to his place of business not earlier than four o'clock of the day on which the negotiation was had, representing that by that time he would obtain the money from the bank wherewith to make payment; that the property was sent by one Pape, an agent of the H. C. Staver Manufacturing Company, to plaintiff in error's place of business, at the hour indicated, to be delivered; that plaintiff in error then delivered to Pape, without any explanation, the order copied supra, which Pape accepted without examination, and then delivered the property negotiated for to plaintiff in error, and that plaintiff in error had not money on deposit with the bank on which the order was drawn, or any arrangement with the bank by which the

order would or should be paid, as he well knew. The promise to pay cash for the property upon delivery, coupled with the delivery of the order without explanation, was, in our opinion, in effect, a representation that plaintiff in error had the amount of money called for by the order upon deposit with the bank, which the bank would pay to the manufacturing company upon presentation of the order. He was to make a cash payment, and he delivered the order as such payment, which necessarily assumed the ownership of that much money on deposit with the bank.

We are unable to say that the verdict was not warranted by the evidence, and the judgment must therefore be affirmed.

Crime of Obtaining Goods or Money by False Pretenses." Elements and Definitions of the Crime. - To constitute the offense of obtaining money or goods under false pretenses, four things must occur, namely, there must be an intent to defraud, actual fraud, false pretenses used for perpetrating the fraud, which must be accomplished by means of the false pretenses as a cause which induced the owner to part with the property: People v. Wasservogle, 77 Cal. 173; People v. Wakely, 62 Mich. 297. The crime has otherwise been defined to consist in inducing the owner to part with goods or money, either by willful falsehood, or by the offender's assuming a character he does not sustain, or by representing himself to be in a situation he knows he is not in: People v. Haynes, 14 Wend. 546; 28 Am. Dec. 530. To constitute the offense, there must be an acquisition of property by means of some false or deceitful pretense or device, or fraudulent representation, and the title to the property must pass from the injured party to the accused: Sims v. State, 28 Tex. App. 447; Canter v. State, 7 Lea, 349. An intent to defraud is an essential element of the crime: State v. Oakley, 103 N. C. 408; State v. Garris, 98 N. C. 733; State v. Fields, 118 Ind. 491. The crime consists in obtaining the property with a fraudulent intent; the false pretenses employed are only the means by which the offense is perpetrated: Commonwealth v. Van Tuyl, 1 Met. (Ky.) 1; 71 Am. Dec. 455. The making of the false pretense or representation is not of itself criminal, and it becomes so only by being accompanied with a fraudulent intent, which is of the substance of the crime: Commonwealth v. Jeffries, 7 Allen, 548; 83 Am. Dec. 712. The pretenses must be false, and made with a design of obtaining the money or property, which must be paid to or received by the accused in consequence of the false pretenses: Bowler v. State, 41 Miss. 570.

The false representation need not be made for the purpose of accomplishing the particular thing which does result. A false pretense, such as would tend to produce the result accomplished, an obtaining thereby, and designedly, a thing of value from another, and an intention by the transaction to defraud that other, are the only elements of the crime. And if a particular result is designed to be accomplished by making the false pretense, and it fails, while another thing of value is obtained and accepted with intent to

REFERENCE TO MONOGRAPHIC NOTES.

False pretenses, crime of obtaining money or property by: 33 Am. Rep. 94, 95; 40 Am. Rep. 75-80.

False representations, when actionable: 18 Am. St. Rep. 555-563.

defraud, the law imputes to the person making such pretense a design from the beginning to accomplish the latter result: Todd v. State, 31 Ind. 514. False Representation or Pretense, What is. A false representation or pretense is a representation of some fact or circumstance, calculated to mislead, which is not true; or in other words, such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the person to whom it is made to part with something of value. Such pretense need not be in words, but may be gathered from the acts and con. duct of the party: People v. Wasservogle, 77 Cal. 173; Jackson v. People, 126 Ill. 139; State v. Vandimark, 35 Ark. 396; State v. Haines, 23 S. C. 170. So if a false representation is made in regard to an article, and money is thereby obtained, the crime is complete, even though it is necessary to apply tests or experiments to the article to ascertain whether the representation is false or not: In re Greenough, 31 Vt. 279. A false representation of an existing fact, calculated to deceive, and which does deceive, and is intended to deceive, whether the pretense is in writing, or oral, or in acts, by which one man obtains value from another without compensation, is a criminal false pretense: State v. Phifer, 65 N. C. 321; State v. Dixon, 101 N. C. 741-743. Future Events, Representations concerning. - One of the essential elements of the crime of obtaining money or property by false pretense is, that the false pretense or representation shall be of a past event or of an existing fact. No representation of a future event, whether in the form of a promise or not, can be a criminal pretense: State v. Tull, 42 Mo. App. 324; State v. De Lay, 93 Mo. 98; State v. Colly, 39 La. Ann. 841; Commonwealth v. Wallace, 114 Pa. St. 405; 60 Am. Rep. 353; In re Snyder, 17 Kan. 542; Keller v. State, 51 Ind. 111; Commonwealth v. Moore, 89 Ky. 542; State v. Magee, 11 Ind. 154; Jackson v. People, 126 Ill. 139; Dillingham v. State, 5 Ohio St. 281; Johnson v. State, 41 Tex. 65; Canter v. State, 7 Lea, 349; State v. Haines, 23 S. C. 170. Hence where one advances money to a laborer on his promise to work it out, which he afterwards refuses to do, he is not guilty of obtaining the money under false pretenses: Ryan v. State, 45 Ga. 128. So where one is dishonest, and purchases goods under a promise to pay for them, but without intending to do so, this does not constitute the crime: Tefft v. Windsor, 17 Mich. 485. So where horses are sold to defendant on credit, the seller taking a note for the price, relying on the defendant's promise to resell the horses to pay the first purchase price, the crime is not made out, although the defendant may have falsely represented his present ability to pay: People v. Mauritzen, 84 Cal. 37. So where the defendant, on presentation of his board-bill, falsely represented that he was expecting money every day with which to pay it, and on the strength of such representation obtained further credit for board, all of the board having been ob. tained without any prior agreement as to time of payment, the defendant was decided to not be guilty of obtaining goods by means of false pretenses: State v. Black, 75 Wis. 490; State v. Tull, 42 Mo. App. 324.

The Pretense must have Induced Belief. - To make the pretense criminal, it must not only relate to a past event or a present existing fact, and not to a promise or something to happen in future, but the party injured must also believe the pretense to be true, and, confiding in its truth, must, by reason of such confidence, part with his money or property: State v. Evers, 49 Mo 542; and it may relate to quality, quantity, or the nature or other incident of the article offered for sale, whereby the purchaser, relying on such false representation, is defrauded: Jackson v. People, 126 Ill. 139; or the promise and pretense may blend together and still be criminal, if they jointly act

upon the defrauded person and induce him to give faith to the pretense: State v. Dowe, 27 Iowa, 273; 1 Am. Rep. 271.

Pretense not Sufficient to Deceive Prudent Persons. The better opinion would seem to be, that the false pretense relied upon as true need not be such as would be guarded against by a person of ordinary care and prudence: People v. Haynes, 14 Wend. 546; 28 Am. Dec. 530; State v. Fooks, 65 Iowa, 196; Johnson v. State, 36 Ark. 242; Smith v. State, 55 Miss. 514; Bowen v. State, 9 Baxt. 45; 40 Am. Rep. 71. The contrary doctrine is, however, maintained by some authorities: State v. Burnett, 119 Ind. 392; State v. Magee, 11 Ind. 154.

False Statement Made True before being Acted upon.

A pretense which

is false when made, but true, by the act of the maker of it, when the prosecutor relies thereon and parts with his property, is not a criminal false pretense: In re Snyder, 17 Kan. 542.

False Pretense Which is Part Only of the Means Operating. — It is not necessary, to constitute the crime, that the owner has been induced to part with his property solely and entirely by false pretenses, nor need the pretenses be the paramount cause of the delivery of the property to the accused; for it is sufficient if they are part of the moving cause, and without them the defrauded party would not have parted with the property. The falsity of every pretense made is not essential to the crime. It is enough that a material part of the pretense was false, that it was made with intent to defraud, and that it induced the party sought to be wronged to part with his property: Beasley v. State, 59 Ala. 20; In re Snyder, 17 Kan. 542; State v. Thatcher, 35 N. J. L. 445; People v. Haynes, 14 Wend. 557; 28 Am. Dec. 530; People v. Herrick, 13 Wend. 88.

Intent, Presumption of. Where property is obtained by an alleged false pretense, the falsity of the representation, if established, will raise a presumption of an intent to defraud: People v. Herrick, 13 Wend. 88; Jackson v. People, 126 Ill. 139.

The Value of the Thing Obtained is not an essential of the crime of obtaining money or property by false pretenses. One may be punished, however small the value of the property obtained: Jackson v. Commonwealth, 86 Ky. 1. Illustrations of False Pretenses. Among the many cases where false pretenses have been deemed sufficient to constitute the crime of obtaining property or money by false pretenses, the following may be enumerated: An influential and intentionally false representation, by the seller to the purchaser of a horse or mule, that he is sound or possesses certain other qualities, the falsity not being apparent, or if apparent, falsely explained: State v. Stanley, 64 Me. 157; Watson v. People, 87 N. Y. 561; 41 Am. Rep. 397; State v. Wilkerson, 103 N. C. 337; State v. Burke, 108 N. C. 750; Jackson v. People, 126 Ill. 139; a bank check drawn by defendant in favor of the person alleged to have been defrauded, and in payment of property obtained, the defendant knowing when he gave the check that he had neither funds to meet it, nor credit at the bank upon which it was drawn, and that it would not be paid upon presentation: People v. Donaldson, 70 Cal. 116; Commonwealth v. Drew, 19 Pick. 179; Maley v. State, 31 Ind. 192; Smith v. People, 47 N. Y. 303; Commonwealth v. Devlin, 141 Mass. 423; false representations made by a merchant in obtaining goods, as to existing facts, regarding his present ability to pay for them: Rothschild v. State, 13 Lea, 299; Smith v. State, 55 Miss. 513; Clifford v. State, 56 Ind. 245; the obtaining of a signa ture or an indorsement to a promissory note, by false pretenses, and with ▲ fraudulent intent to obtain money upon it, whether the note is negoti.