11 Neb. 309 | Neb. | 1881
This ease was submitted to the court chiefly upon the question of jurisdiction in the committing magistrate. The case was heard upon the evidence taken before him, no application for additional testimony being made by either party, and the magistrate having returned and certified all the testimony taken before him.
Does this testimony establish prima fade the guilt of the petitioners, or either of them, of the offense charged within the county of Douglas ?
The offense with which the petitioners are charged is set out in the statute in the following words :
“ If any person, by false pretense or pretenses, shall obtain from any other person any money, goods, merchandise, or effects whatever, with intent to cheat and defraud such persons of the same,” etc. 1875, 9.
The complaint charges that the petitioners “ on the 19th day of March, a.d. 1880, in the county of Douglas and within the city limits of the city of Omaha, Nebraska, unlawfully, wilfully, and feloniously, did falsely pretend to the complainant, Freeman P. Keykendall, who is a member of a firm doing business in the city of Omaha, under the firm name of Reed, Jones & Co., * * that they, the said T. B. Parker and Thomas Sawyer, were * * the owners and possessors, free from incumbrance, of the following described personal property situate and being in Dorchester, in the county of Saline, in the state of Nebraska, to-wit: Thirty thousand bushels of corn, of the value of six thousand dollars, and the cribs in which said corn was deposited, of the
The testimony is to the effect that on the 14th of January, 1880, William Eisher, the traveling salesman of Reed, Jones & Co., wholesale merchants of Omaha, Douglas county, called at the store of Parker & Sawyer (petitioners), at Dorchester, Saline county. He found Mr. Sawyer in the store, and had a general conversation with him, in which Mr. Sawyer made representations as to the business and means of the firm, which are claimed to have been false and made with intent to defraud, but which it is not deemed necessary to set out at length in this opinion. In the course of the conversation Eisher informed Sawyer that he had samples open at the hotel, and invited him over there. He went, and after examining the samples, gave Eisher an order for goods amounting to over eight hundred dollars. This order was a verbal one, so far as Sawyer or Parker & Sawyer were concerned, was reduced to writing by Eisher, and by him forwarded to the house at Omaha. These goods were not to be actually ready for delivery until the following March. There is no testimony as to anything having been said as to the place of delivery, or the means or line by which the same were to be shipped •or delivered. There is testimony as to representations, which are claimed to be false and fraudulent, having been made by the petitioners, or one of them, to Mr. Koch, traveling salesman for another firm, who communicated the same to Reed, J ones & Co.; also of
The primary definition of the word obtain, as given by Webster, is “ to get hold of by effort.” The section of the statute under which the petitioners wore committed is almost a literal copy of the corresponding section of 30 Geo. II, Chap. 24, which has been held to reach almost every species of gross fraud by means of which the unsuspecting and over confident have been cheated out of money or goods. Yet I think that, in the very nature of things there is a difference .between those frauds which are perpetrated by means of the abuse of the forms of legitimate commercial transactions and those which consist of personations and so-called confidence games and tricks. In either case and by whatever means accomplished, the crime consists in the obtaining of the property — getting hold of the property, that is the corpus delicti.
Calkins et al. v. Hellman, 47 N. Y., 449, is directly in point. In that case the court say, “ No act of the vendor alone in performance of a contract void by the statute of frauds can give- validity to such a contract,” and again, “where a valid contract of sale is made in writing, a delivery pursuant to such contract at the place agreed upon for delivery, or a shipment of the goods in conformity with the terms of the contract, will pass the title to the vendee without any receipt or acceptance of the goods by him. But if the contract is oral, and no part of the price is paid by the vendee, there must be not only a delivery of the goods by the vendor, but a receipt and acceptance of them by the vendee to pass the title or make the vendee liable for the price.”
Now if, waiving the fraud, the facts proved would be insufficient to render the petitioners liable -for the price
Were there proof of the receipt of the goods at Dorchester, and their acceptance at that place by the petitioners, such acceptance would not only have made legal a transaction which up to that point was void under the statute, but would also, such purchase having been effected by means of false pretenses, have given venue to the offense and jurisdiction to try it to the district court of Saline county.
But on the other hand, let us examine the question without reference to the • statute, discarding all presumptions and legal conclusions. Is there any evidence tending to prove that these men obtained the goods in Douglas county ? They indicated the Mnd and quantity which they wished to buy, and in that manner induced Eisher to order them; which in every other view than that of the statute of frauds, was equivalent to ordering them themselves. Set in motion by these means the goods may be followed to the freight office of the railroad. Beyond that there, is “ no thoroughfare.” Even were we now dealing with presumptions of law it would not be contended that the law raises any presumption that goods shipped by railroad at one point are delivered to a given person at another. And when it is borne in mind that we are considering a question of crime, that these goods have been set in motion by means of false pretenses, the one hundred miles and more between the railroad freight office at Omaha and the store of the petitioners at Dorchester must be considered a locus penitential, within which even the unconscious wheels of commerce might have re
No doubt the reason why the state failed to introduce any evidence tending to prove the receipt of the goods at Dorchester or their acceptance by the petitioners, supposing for the sake of the statement that such proof could have been obtained, was that by such evidence it would be established that the goods were obtained by the petitioners at their home at Dorchester and not at the railroad office at Omaha. But in a criminal case where all the presumptions are in favor of the innocence of the accused, it will not do to stop short of proving the body of the crime. It is true that, for all that appears in the proofs, the goods never left the city of Omaha, and it is equally true that, for all that appears in the proofs, the petitioners never obtained the goods, never “ got hold of them” either by false pretenses or otherwise, either at one place or the other.
No case being made against the petitioners it follows that they must be discharged.
Judgment Accordingly.