2 Lans. 329 | N.Y. Sup. Ct. | 1869
By the Court
It is a rule of law, well settled, that in an indictment all the ingredients of the offence with which the defendant is charged, the facts, circumstances and intent constituting it, must be set forth with certainty and precision, without any repugnancy or inconsistency, and the defendant must be charged directly and positively with having committed the crime. (Ar. Cr. Pl., 25.) This principle, which is applicable to criminal pleading, dates back to the earliest history of the criminal law, and has not been relaxed by the adoption of the Code of Procedure, by which more liberal rules of pleading are sanctioned in civil cases.
It is also held that in indictments for obtaining property under false pretences the charge must be explicit enough to support itself, and that the indictment must relate an intelligible story. It is not enough to state that the defendant, by a certain false pretence, effected the fraud; but the pretence, with all the material facts and circumstances appertaining to
It is insisted by the counsel for the plaintiff in error that the indictment against him does not conform to the standard-laid down in the authorities cited, and that it is defective and insufficient in not alleging that the prosecutor, Gregory, was induced to part with his property by reason of the false pretences stated, or that he believed the statements made by the plaintiff in error; and, acting under that belief, he parted with his property, or anything equivalent to such an averment. The indictment avers the intent, the inducement, the false pretences, and then charges that by said false pretences the prisoner did unlawfully obtain the oxen and gave his note therefor with the intent to defraud, and did thereby defraud the prosecutor. It also charges that the pretences were false, and that the prisoner knew them to be false. It will be observed that there is no positive and direct averment that the pretences alleged had any influence upon the mind of the prosecutor or induced him in any way to part with the oxen; and it would no doubt have been more strictly in accordance with the rules of pleading applicable to such cases, to have inserted an allegation embodying a charge of the character stated. It is however averred that by the false pretences alleged, the prisoner did obtain the property. This could not be true, in fact, unless the prosecutor believed the false pretences set forth to be true, and they had an influence upon his mind and induced him to part with the property. How could the prisoner obtain the oxen in the manner alleged, unless it was done by means of the false pretences operating upon his
I think that the plain and obvious meaning of the phraseology employed, is that the prisoner for the purpose of inducing Gregory to part with the oxen, made false representations which were believed by Gregory, by means of which, he was induced to deliver them. It cannot be supposed from the statement made, that he parted with the oxen for any other reason, nor that force, or any other consideration but the representations made, produced the result which followed.
It maybe added that the indictment is drawn in conformity with precedents generally recognized. (Whart. Cr. L., 239 ; Ar. Cr. Pldg., 4th G. & B. Ed., 275,) and although in some of the reported cases, the indictment contains an averment that the prosecutor believed -the false pretences, and was induced thereby to deliver the property, yet, in none of them was any question of this character raised. (13 Wend., 111; 4 Barb., 151; 2 Park. Cr. R., 140.)
In The State v. Philbrick (31 Maine, 401), it was held that the indictment is defective, unless it set forth that the false pretences were made with a view to effect the sale or exchange of property, and that, by reason thereof, the party was induced to part with his property. This case is directly in point, and sustains the position taken by the counsel for the plaintiff in error.
The opinion of the court does not discuss very much at length the principle involved, and I think the conclusion
It is undoubtedly the rule in civil cases that in an action for deceit or fraud in the sale of property induced or procured by the false representations, that the complaint must aver that the false representations were made with an intent to induce the purchaser to make the purchase or trade in question, and that they did induce such sale; but it is enough if there is anything in substance which amounts to an allegation of this character. (Barber v. Morgan, 51 Barb., 133.) Not less should be required in indictments for false pretences. But I think when the indictment charges that the pretences were made for the purpose of inducing the party to part with his property, and that by such pretences the property was obtained, it is a substantial compliance with the. rule referred to. Upon such an' allegation the people would be compelled to prove that the party defrauded was deceived by the pretences, arid of course he believed them, and if they failed to do so the prisoner could not be convicted.
I think it is not necessary that the indictment should aver' that the prisoner did not pay the note. The allegation that the property was fraudulently obtained, shows that the crime was consummated, and payment of the note, after this, would not blot out- the offence or atone for its commission. It was not material, therefore, to allege that the note was not paid.
As there was no error in denying the motion in arrest of judgment, the conviction- must be affirmed and the sentence enforced.
Conviction affirmed