64 Ind. 498 | Ind. | 1878
At the March term, 1878, of the Jennings Circuit Court, the appellant was indicted, for obtaining a certain thing of value by certain false pretences.
The indictment contained two counts.
The appellant moved the court to quash the indictment, which motion was overruled, and to this ruling he excepted. On arraignment, his plea to the indictment was, that he was not guilty as therein charged.
The cause was tried by a jury, and a verdict was returned finding him guilty as charged in the first count of the indictment, and assessing his fine at one cent; and that he be imprisoned in the state-prison for the term of two years.
His motion for a new trial having been overruled, and his exception entered to this decision, judgment was rendered against him by the court, upon and in accordance with the verdict.
From this judgment he has appealed to this court, and has here assigned, as errors, the following decisions of the circuit court: . • .
1. In overruling his motion to quash the indictment; and,
2. In overruling his motion for a new trial.
1. In considering the questions arising under the first alleged error, it will be observed that the verdict of the jury was entirely silent as to the second count of the indictment. This silence of the vend’ was equivalent to an express verdict of not guilty as to the second count of the indictment. Weinzorpflin v. The State, 7 Blackf. 186, and, Bittings v. The State, 56 Ind. 101. It follows, therefore, that the only question for decision, under the first alleged error, is the sufficiency in law of the first count of the indictment.
- Omitting merely formal and introductory matters, the first count of the indictment charged, in substance, that
It will be readily seen from the indictment in this case, that it was intended to charge the appellant, therein and thereby, with the commission of the felony which is defined, and the punishment therefor prescribed, in and by section 27 of “An act defining felonies, and prescribing punishment therefor,” approved June 10th, 1852. In said section 27 it is provided as follows :
“ Sec. 27. If any person, with intent to defraud another, shall designedly, by color of any false token or writing, or any false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, transfer, note, bond or receipt, or thing of value ;
We pass now to the consideration of the objections urged by the appellant’s counsel to the sufficiency of the indictment. We will consider and pass upon the objections, in the same order in which they have been presented.
In his brief of this cause, the appellant’s counsel says : “ It will be observed, that the indictment nowhere charges, in express terms or by implication, that it was any part of the duty or business of the defendant, Bonnell, to employ_ the members of his gang, for John King, Jr., receiver, in the one case, of for the Ohio and Mississippi Railway, in the other. Row, unless the designation of the defendant’s duty, under the term ‘ foreman,’ implies the power and duty to employ the members of his gang, then not only is there no averment that such was a part of his duty, hut the fair inference is that it was no part of his duty, that inference being drawn from the use of the word ‘foreman.’ ”
This objection to the indictment is well taken. The term “foreman,” as used in the indictment, does not imply, ex vi termini, that it was the duty of'the appellant, or that'he had the power, simply as foreman of a gang of laborers, to employ the laborers, or any of them, over whom he acted as foreman. If it was his duty, and if he had the power, as such foreman, to employ the laborers who constituted his gang, over whom he was placed as foreman, and of whom, and of the number of days each of them worked, and of the rate of wages each was entitled to, he was required to keep a correct list, and make weekly and monthly reports thereof, it is quite clear, we think, that it should have been alleged in the indictment, that such was
It was.not the appellant’s duty, and if he had no power to employ the laborers in bis gang, the fair and reasonable inference would be that such duty was incumbent upon, and such power was possessed by, some othijr agent or agents, servant or servants of said John King, Jr., receiver ; and, in that event, it would seem to be reasonable, that such other agent or agents, or servant or servants, should keep true and correct lists of the persons so employed by him or them, the date of their employment, and of such other particulars, including their names, as would clearly identify them, and should examine and verify the weekly and monthly reports of the foreman of a gang of laborers, before any payment should be made to any of such laborers. It seems to us, that, in a great enterprise like the Ohio and Mississippi Railway, extending for hundreds of miles through and into four of the largest States of the Union, and whose agents and servants are-numbered by the thousand, there should be some officer, agent or servant clothed with the duty, and possessed of the' power, to employ the necessary laborers, and keep registers or rolls of their names, and of other proper particulars in regard to them. If the appellant was clothed with this duty,' and
It is the settled law in this State, that, in such a case as the one now before us, the false pretences upon which the indictment is predicated, must be such as would deceive a person of ordinary caution and prudence. “ The pretences must be of some existing fact, made for- the purpose of inducing the prosecutor to part with his property, and to which a person of ordinary caution would give credit.” The State v. Magee, 11 Ind. 154; Johnson v. The State, 11 Ind. 481; The State v. Orvis, 13 Ind. 569; Jones v. The State, 50 Ind. 473; Keller v. The State, 51 Ind. 111; and Clifford v. The State, 56 Ind. 245.
In the case at bar it will be observed, that the indictment charged, that the appellant procured “ one Lon King to personate and represent himself to be the said ‘ W. S. Jones,’ ” the fictitious name and person mentioned in the appellant’s weekly and monthly reports. Now, it may be presumed, that Andrew Donaldson, the paymaster of said John King, Jr., receiver, did not know “ W. S. Jones,” the fictitious person, or Lon King, the real person, who .was to personate and represent himself to be “ W. S. Jones.” If the paymaster, Donaldson, who was the servant, and, for the time being, was the representative, of John King, Jr., receiver, did not personally know “ W. S. Jones,” the fictitious person, nor Lon King, who personated
We are clearly of the opinion, that the false pretences of
In the case of Smith v. The State, 33 Ind. 159, the doctrine was laid, down, and we think correctly, upon the authority there cited, “ that the property, obtained under a false pretence must be described with as much accuracy and particularity as goods stolen must be in an indictment for larceny.” In the case at bar, the property alleged to have been obtained for and on behalf of the appellant, from the hands of the paymaster, Donaldson, by means of the false pretences charged in the indictment, was described therein as follows :
“ The check of the said John King, Jr., as such receiver, upon the ‘ Commercial Bank of Cincinnati for the sum of $34.51, which check was then and there of the value of $34.51.”
It will be observed, that the indictment contained no allegation of the loss or destruction of the check in question, nor was it alleged therein that the contents of said check were unknown to the grand jury, nor was any reason or excuse given for not setting out the substance of the check, nor was it stated, that, for any cause, a more particular description of the check could not be given, than was given m the indictment. Under these circumstances it is very certain, we think, that the check alleged to have been ob
In another view of the question, it seems to us that the defective description of the check injuriously affected the indictment in this case. Of course it is necessary, in a case of this character, that the indictment should show, clearly and beyond doubt, that, by means of the false pretences charged therein against the defendant, the prosecu-. tor. has suffered some loss. In this case it is charged in the indictment that Lon King, for and on behalf of .the appellant, obtained from the paymaster, Donaldson, a check for $34.51, hut it is not alleged to whom this check was made payable. It was not alleged that the cheek thus obtained was a check made and prepared and intended for the fictitious “ W. S. Jones indeed, it was not alleged in terms, but is left merely to inference, that the check in question, obtained by Lop King for and on behalf of the appellant, was not made, prepared and intended for the appellant, and payable to him or his order. If the substance of the check had been set out, Or if it had been fully described, or its contents given, in the. indictment, it might then have appeared therein whether or not Lon King had obtained for the appellant the check made, prepared and intended for the fictitious “ W. S. Jones, ” and not for the appellant. But, in the absence of the substance of the check, or of its contents, and of any averments to that effect in the indictment, we cannot assume or infer that the check, obtained by Lon King for the appellant, was a check not - intended for the appellant, but one made, prepared and intended for the fictitious “ W. S. Jones,” if there was any such check.
Eor the reasons given, we think that the circuit court erred in overruling the appellant’s motion to quash the indictment.
The conclusion we have reached, in regard to the insuf
The judgment is reversed, and the cause remanded,'with instructions to sustain the appellant’s motion to quash the first count of the indictment; and the clerk of this court will issue tlie proper notice for the return of the appellant to the sheriff of Jennings county.