Lead Opinion
Plaintiffs in error moved below to quash the indictment, which motion was overruled, and exception taken. They then interposed a demurrer to the indictment, which was overruled. These are the first t wo and principal assignments of error.
The first question suggested by the motion and demurrer grows out of a misapprehension as to the scope and effect of section 138 of thé crimes act in the Compiled Laws of 1876. Section 139 of that act, as amended March 5, 1884, is substantially the statute of 7 & 8 Geo. 1Y.; and it seems to be conceded that had section 138 not been enacted, the facts as developed in the court below would have constituted a breach of section 139 of the false pretenses act. It remains, therefore, to inquire what effect section 138 has upon section 139 in withdrawing this or any other case from the provisions of the latter section. Section 138 provides that, “if any person, by false representations in writing of his own responsibility, wealth, or mercantile correspondence or connection, shall obtain a credit, and thereby defraud any person,” etc., “or if any person shall cause or procure others to report falsely of his honesty, wealth, or mercantile character, ” etc., he shall be punished. It is a fundamental principle that a statute which is in effect a limitation upon a general act limits the general act only so far as the words of the limiting statute go. In other words, where there is a general act creating and punishing an offense, which may be committed in a number of Ways, and another statute prescribing a particular punishment for that offense when committed in a particular manner, such offense, unless committed in such particular manner, is subject to punishment under the general act; and it is equally true that a penal statute must be construed strictly. Counsel, we think, when they impute to section 138 the effect of providing, or attempting to provide, for all matters of false pretenses in which the element of credit enters, misapprehend the effect of such statute. If the wording of section 138 was not perfectly clear and intelligible in itself, the history of section 139 would cast sufficient light upon the scope which the legislature intendeditto have. Section 139, as passed and incorporated in the Compiled Laws of 1876, contained the provision: “This section shall not apply to sales of property on credit. ” In 1884 the legislature struck out the clause quoted above, lea ving section 139 to apply to any matter in which credit was an element, and which was not otherwise provided for. Section 138 only provides a punishment for the offense of obtaining goods upon credit by the representation in writing of the party himself as to his responsibility, or by his procuring- others to make such representations for him ; and it will be noticed that the representations are of a particular kind. In the case at bar, it is doubtful whether the representations made were such as is contemplated by section 138. See Lyde v. Barnard, 1 Mees. & W. 101. But, without deciding that question, it seems to ns that upon other grounds the case at bar cannot be construed as within the contemplation of section 1S8.
Plaintiffs in error, for their own benefit, procured a person to perpetrate the fraud, not by any representations as to their responsibility, etc.; nor did they themselves make such representations, in writing or otherwise. Clearly,the offense not being within the letter of the act, they are not punishable under section 138. 2 Bish. Crim. Law, § 415. Faulds did not procure them to make representations, and thereby make them accessoi'ies to any crime of his, (it would not be difficult to imagine a state of facts in which he might have been wholly an innocent instrument;) but they originated the crime. They were the prime movers in it. They were to reap the benefits of it. In the view of this court, they are principals in the false pretenses. 1 Bish. Crim. Law, § 686; Queen
Another objection is urged to the indictment in this case. It is contended on the part of the plaintiffs that the indictment is defective and insufficient in this: that it does not set out a sale, or attempted sale, of the horses to Faulds. Plaintiffs’ objection is supported by a number of citations, the principal of which is Com. v. Strain, 10 Metc. (Mass.) 521. But we think there is a wide difference between Com. v. Strain and the case at bar. In that case, after alleging the pretenses, the indictment failed to make any further allegation connecting the pretenses with the obtaining of the property, the property having been obtained by means of a sale. We think the language of the court in Com. v. Strain was broader than was necessary for the decision of the case, the indictment being unquestionably bad. It is necessary that the indictment should set out all the facts which constitute the offense, and the additional ones which may be required to inform the accused of the charge which is made against them. The facts which constitute this crime are— First, the pretenses; second, their falsity; third, the fact of obtaining the property by reason of the pretenses; fourth, the knowledge on the part of the accused of their falsity; üftb, the intent to defraud. These five facts or set of facts must be alleged and proven in any case of false pretenses; but, in a case'where the pretenses bear no apparent relation to the obtaining of the goods, as in Com. v. Strain, then whatever additional facts are necessary to intelligibly connect these two things as cause and effect must be alleged and proven. Whart. Crim. Law, par. 1215. In the- indictment under consideration, the allegation is made that Faulds, desiring to purchase these horses, made these representations. Such was not the case in Com. v Strain. For the purpose of illustration, suppose that A. goes to B., and makes certain false representations, stating that he wants to buy a suit of clothes. Such representation, being the substance of the conversation which would precede any sale, states all that it is necessary to state about that part of the transaction. It would be ridiculous to require any other part or the whole of the conversation to be set out in the indictment. Thereupon B., after fixing a price upon the suit of clothes, delivers them to A. upon the strength of the representations, and gives him a credit for that amount. In other words, he sells the clothes. But it is immaterial what the price agreed upon is. If the property has any value, the crime is committed, and the amount does not affect it. The only allegation, then, that, according to plaintiffs’ contention, should be added to the indictment is that “B. sold the clothes to A,” — in other words, that A, obtained the clothes from B.; and we have already seen that the mode of obtaining them is immaterial. Com. v. Coe,
A further objection is made to the indictment od the ground that it should state a delivery of the property to Faulds. We think the allegation that Faulds obtained the horses necessarily conveys aud includes the idea that they were delivered to him; and this view has been adopted in Kennedy v. State,
As to theobjection madethat the indictment is defective because it fails to apprise the accused of what crime they are charged with, we do not think the objection well taken. The distinction between larceny and false pretenses is well settled, and consists in the fact whether or not the owner intended or consented to part with the title to property. But the allegation of the indictment is that, by color and means of the pretenses, plaintiffs obtained the horses, presumably for the purpose which the pretenses and inducements held out would naturally accomplish. The object to be obtained by these means, it is apparent on the face of the indictment, wab not merely the possession of the property, but its title also. They proposed to buy the horses, and thereby obtained them. By no construction could such an indictment be held to charge a larceny. This form of indictment has been held good in numerous cases. See
A largenumborof exceptions were taken at the time to the admission of testimony, but the first and most important one is as follows: The territory offered evidence tending to prove that Faulds bought the horses of Walker, paying him $1,000 in cash, and giving his note for $2,300 for the balance of the purchase money. The admission of this evidence was objected to, on the ground that no sale was alleged in the indictment. We have seen that, in the opinion of the court, no allegation of a sale was necessary in the indictment, and therefore theobjection on this ground was properly overruled. But a more serious objection to the introduction of this evidence, and its effect after its introduction, sugests itself to the court. The indictment charges virtually the obtaining of the property in question by means of the false pretenses alone. The evidence as admitted discloses the fact that Walker did not part with the horses on the strength of the pretenses alone, but that the payment of the $1,000 was one of the inducements. Indeed, Walker says that he would not have sold the horses had he not received the money. The question immediately arises as to whether such proof constitutes a fatal variance from the allegations of the indictment. The principle is well settled that the false pretenses need not be the only inducement, (Wharf. Crim. Law, par. 1176, and cases there cited,) if they are the controlling motive.
In People v. Haynes,
It may be said, of course, that Walker would not have made the sale had he not been paid the $1,000; but it is equally true that, being paid the $1,000, he would not have sold had he not believed from these representations that Faulds was a man who had the means and would pay for them. We think this would constitute the controlling inducement. It being the controlling inducement, the crime is completely proved when such state of facts appears; and it becomes immaterial whether it was the
It has been urged upon the court that theevidenceadduced below was insufficient to warrant a conviction. We think there was sufficient evidence upon which to base a verdict of guilty.
The third error complained of is that an open venire was issued to the sheriff of the county to serve in impaneling a jury in the trial of the case below. The record disclosing no objection and no exceptions taken to this proceeding below, this •court cannot pass upon that question.
The fourth error assigned is that the •court below erred in permitting the prosecuting witness, Walker, to remain in the court-room, having excluded the other witnesses. The matter of the exclusion •of any and all witnesses from the coui't-room during the progress of the trial is wholly in the discretion of the court, and will not be reviewed, except for gross abuse. No such abuse has been shown here. 1 Bish. Crim. Proc. pars. 1188, 1189.
The twelfth error assigned is that the court below erred in permitting Faulds to testify as to Russell’s declaration of who was in the conspiracy, before the fact of a conspiracy existing had been fully proven. “In an action for conspiracy, it is within the discretion of the trial court to allow evidence of the declaration of one of the alleged conspirators to be given prior to proof of the conspiracy, and conditional upon the production of such proof thereafter.” Place v. Minster,
The thirty-first error assigned is directed to the charge of the court below to the jury. The portion objected to is as follows: “The court instructs the jury that, although the law makes the defendants in this case competent witnesses, still the ju
The judgment of the court below, so far as the same affects Alanson L. Haines and William W. Russell, plaintiffs in error, is affirmed, and it is ordered that the judgment of the court below be enforced. The judgment of the court below, so far as it affects A. W. Branner, is reversed, and a new trial is hereby ordered, and the cause remanded as to him.
Dissenting Opinion
dissenting.