Stifel v. State.

STIFEL V. THE STATE.

[No. 20,444. Filed December 9, 1904.]

INDICTMENT AND INFORMATION.-Affidavit of Reputable Person.- Whether Information Must Show.-It is not necessary for an information to show on its face that it was based upon the affidavit of a reputable person. p. 628.

SAME.- Uncertainty.—Where an information alleges that defendant feloniously represented that he was an agent of a certain company with authority to collect and receive money on sales; that by means of such false pretense, one L., relying upon the same and believing same to be true, issued to defendant a check, which defendant cashed at a bank; that in truth defendant was not an agent of such company and not au-. thorized to collect, such information is fatally defective on motion to quash, since it does not show the intention of L. in issuing and giving his check, or that L. had bought goods from or was indebted to such company, or that it was given as a loan, or that defendant solicited the check in any way. pp. 628–630.

From Allen Circuit Court; Edward O'Rourke, Judge.

Prosecution by the State of Indiana against Albert G. Stifel for obtaining money under false pretenses. From a judgment entered on a verdict of guilty, defendant appeals. Reversed.

R. S. Robertson and W. S. O'Rourke, for appellant.

C. W. Miller, Attorney-General, C. C. Hadley, L. G. Rothschild and W. C. Geake, for the State.

HADLEY, J.-Appellant was convicted, on an affidavit and information, of obtaining money by false pretenses. He asks that the judgment be reversed for alleged errors of the court in overruling his motion to quash and for a new trial.

The information is not bad, under $1747 Burns 1901, for failure to show upon its face that it was based upon the affidavit of a competent and reputable person. Blake v. State (1897), 18 Ind. App. 280. But it is bad for uncertainty and failure to show affirmatively some reasonable

Stifel v. State.

connection between the false pretense and the obtaining of the check and the receiving of the money thereon.

Omitting the formal parts of the information and the venue, the information charges that "Albert G. Stifel on June 22, 1903, did then and there unlawfully, feloniously, and designedly, with intent to defraud one Louis Langard, falsely pretend to said Louis Langard that he, the said Albert G. Stifel, was then and there the duly authorized agent of Robert Young, doing business under the firm name and style of the Cincinnati Distilling Company, and duly authorized by said Young to sell whisky and other merchandise for said Young to said Langard, and to collect, receipt for, and receive from said Louis Langard money due and owing from said Louis Langard to said Robert Young, under the firm name and style aforesaid, the Cincinnati Distilling Company; that by means of such false pretenses, the said Louis Langard relying upon and believing the same to be true, said Albert G. Stifel did then and there unlawfully and designedly obtain from said Louis Langard a check issued by the firm of Langard & Langard, of which said Louis Langard was a member, which check, drawn upon the Hamilton National Bank of Ft. Wayne, Indiana, was in the words and figures following, to wit: 'No. 51. Langard & Langard. Ft. Wayne, Ind. June 20, 1903. Pay to the Cincinnati Distilling Company, or bearer, $119.50. To the Hamilton National Bank, Ft. Wayne, Ind. Langard & Langard'—and which check was then and there of the value of $119.50, and the said Albert G. Stifel did then and there present said check to the Hamilton National Bank, and receive thereon $119.50 in money of the United States of the value of $119.50, the property of said Louis Langard, whereas in truth and in fact the said Albert G. Stifel was not then and there the agent of said Robert Young, doing business under the firm name and style of the Cincinnati Distilling Company, and was not authorized to collect, receipt for

Stifel v. State.

and receive from said Louis Langard any money due and owing from said Louis Langard to said Robert Young, as is set forth in the affidavit of Homer A. Gorsline, filed herein. Wherefore," etc.

The substance of the charge is that the defendant, to defraud Louis Langard, falsely pretended to him that he (defendant) was then the authorized agent of Robert Young to sell whisky to and receipt for and receive from Langard any money owing and due from the latter to Young; that Langard believed said pretenses to be true, and relied upon them, and the defendant was thereby enabled to obtain unlawfully and designedly from Langard a check for $119.50, which check the defendant then and there presented to the bank, and received thereon the money.

To constitute a good charge for obtaining money by false pretense, it must be shown that the injured party was deceived by the false representations, and induced by the deceit to part with his money. State v. Williams (1885), 103 Ind. 235; State v. Conner (1886), 110 Ind. 469; State v. Miller (1899), 153 Ind. 229.

It is not so shown in this information. Here there is a total absence of averment as to the intent of Langard in giving his check to the defendant. It does not appear that Langard was indebted to Robert Young on any account whatever, or that Langard at the time bought any goods of the defendant, or that the defendant requested a loan of the money on his own account, or that he solicited in any way or for any purpose the execution of the check. For aught that appears, Langard, because he believed that the defendant was an accredited representative of Robert Young, voluntarily and without request presented the check to the defendant as a gift. The law will not tolerate in criminal pleading such uncertainty, and, in this class of cases, such a want of coherent and consistent connections between the false pretense and fraud perpetrated. Camp

Pennsylvania Co. v. Coyer.

bell v. State (1900), 154 Ind. 309; Funk v. State (1898), 149 Ind. 338.

Judgment reversed, with instructions to sustain the motion to quash the information.

PENNSYLVANIA COMPANY v. COYER, ADMINIS

TRATRIX.

[No. 20,411. Filed December 13, 1904.]

DEATH BY WRONGFUL ACT.-Complaint.-Pecuniary Injury to Next of Kin.—
In a complaint for damages by an administrator for the death of his
decedent by wrongful act, it is not necessary under 2285 Burns 1901
(Acts 1899, p. 405) to allege the pecuniary interest of the widow, wid-
ower, children or next of kin in the life of the decedent, the better
practice being to name the persons for whom suit is maintained and
their relationship to the decedent. pp. 633-635.
RAILROADS.-Work Train.-Allowing Person to Ride in Caboose.-Liability.—
If in an action by an administrator for the death of his decedent by
wrongful act, it is alleged in the complaint that decedent was not an
employe of the defendant railroad company, but was in the habit of
riding upon the work train of said defendant with the knowledge and
consent of such company, to be carried to his home, such complaint is
sufficient to show that the defendant must at least exercise ordinary
care for his safety. pp. 635, 636.
TRIAL.-Interrogatories.-Conflict with General Verdict.-Evidence Admissi-
ble. Where evidence might have been introduced under the issues
which would render the answers to the special interrogatories consist-
ent with the general verdict, such answers will not be held in irrecon-
cilable conflict therewith. p. 636.
RAILROADS.-Work Train.-Allowing Person to Ride in Caboose.-Liability.—
Rules of Company.-Where, in an action by an administrator for dam-
ages for the death of his decedent by the wrongful act of the defendant
railroad company, the evidence showed that decedent was employed by
an independent contractor in the construction of a track for defendant;
that a rule of defendant issued by the general superintendent forbade
any one, not an employe of its work train, from riding thereon; that
decedent knew of this rule; that with the conductor's knowledge and
consent he did nevertheless ride thereon; that the general superintend-
ent did not know of decedent's riding on such train and that such riding
did not occur under such circumstances as to raise a presumption that
such order had been disregarded and acquiesced in by such company,
such evidence fails to show a cause of action, since the law does not im-

Pennsylvania Co. v. Coyer.

pose on a railroad company the duty of a constant surveillance over its employes to see whether they enforce its rules, and such company has the right to assume that its rules will be enforced. pp. 637, 638. TRIAL.-Instruction.—Presumption that a Person is on a Train Rightfully.— In an action by an administrator against a railroad company for damages for the death of his decedent by reason of negligence of the crew of a work train on which decedent was riding, an instruction containing the proposition "that a person found upon a train, whether it be a passenger, freight or work train, is presumed to be there rightfully," is erroneous, since such presumption does not obtain as to work trains or other non-passenger-trains. pp. 639–642.

From Porter Circuit Court; W. C. McMahan, Judge.

Action by Delphine Coyer as administratrix of the estate of Charles Coyer, deceased, against the Pennsylvania Company for damages for the death of her decedent. From a judgment for plaintiff rendered upon a verdict for $1,650, the defendant appeals. Transferred from the Appellate Court under §1337u Burns 1901 (Acts 1901, p. 590, §1). Reversed.

Allen Zollars and F. E. Zollars, for appellant.

T.H. Heard, J. O. Bowers and Frank May, for appellee.

DOWLING, C. J.-Action by the appellee, as administratrix of the estate of Charles Coyer, deceased, against the appellant, the Pennsylvania Company, for damages for a personal injury resulting in the death of Coyer. Demurrer to each paragraph of complaint overruled. Answer in denial. Trial by a jury. Verdict for appellee, with answers to interrogatories. Motion for judgment on special answers, and for a new trial overruled. Judgment on verdict. All questions discussed in brief of counsel for appellant are properly presented by the assignment of errors.

The complaint charged that the death of Charles Coyer, appellee's decedent, was caused by the wrongful act and omission of the appellant. Each of its three paragraphs alleged, among other things, that Coyer, an employe of a firm engaged in the construction of a second track for ap