16 Colo. 451 | Colo. | 1891
delivered the opinion of the court.
If two persons conspire together to accomplish an unlawful purpose, and one, by false pretenses, obtains money from the other, which the latter parts with in furtherance of the illegal purpose, will a prosecution lie against the former for obtaining the money under false pretenses?
This is the substantial question presented upon the record. Counsel for petitioner contend that it will not, while the affirmative is assumed by the attorney-general. The authorities bearing upon the question cannot be reconciled. In the leading cases of The Commonwealth v. Henry, 22 Pa. St. 253, and McCord v. People, 46 N. Y. 470, exactly opposite conclusions were reached upon facts that are quite similar.
In the former case it was alleged in the indictment that the defendant, intending to defraud the prosecutor, falsely asserted to him, and also to another person who communicated it to him, that he had a legal warrant for the arrest of the daughter of the prosecutor for an offense punishable by a fine and imprisonment, and that he threatened to arrest her; by means of which representation he obtained from the prosecutor property of the value of $100. The trial court having quashed the indictment, its judgment was reversed by the supreme court and the indictment declared sufficient.
In the case of McCord v. The People, supra, the indictment charged the defendant with having falsely and fraudulently represented that he had a warrant for one Miller, and that Miller, believing said false representations, was induced and did deliver to the defendant a gold watch and diamond ring. In this case it was held that, as the property had been voluntarily surrendered as an inducement to the officer to violate the law and disregard his official duties,
In support of the majority opinion two cases are cited by the court, viz.: People v. Williams, 1 Hill, 9; Same, v. Stetson, 1 Barb. 151. An examination of the former case shows it to be no authority upon the question presented here, the decision being simply to the effect that a false representation, to be within the statute, must be such as is calculated to mislead persons of ordinary prudence and caution — a conclusion not generally accepted elsewhere. 2 Bishop, Crim. Law, § 433. In People v. Stetson, supra, it seems, however, to have been determined that, if the owner in parting with his property, etc., was himself guilty of a crime, the indictment under the statute could not be sustained; and a similar conclusion was reached in State v. Crowley, 11 Wis. 271, in which case the information charged a conspiracy on the part of several defendants to defraud the prosecutor of his money; and, the proof showing that the conspiracy charged was in connection with an unlawful enterprise in which the prosecutor and the defendants were pan'tñeeps erimvnis, it was held that a conviction was not warranted. It appeared, also, that had the prosecutor exercised common prudence and caution he could not have been misled by the false pretenses by which he was induced to part with his money.
In opposition to this doctrine, and in line with the Pennsylvania decision, we find Commonwealth v. Morrill, 8 Cush. 571. Mr. Bishop, reviewing the different conclusions, says: “ Another doctrine, sustained in New York, is that where, if the false pretenses were true, the person parting with his
Finding this conflict in the authorities, we are left free to decide the question propounded solely upon principle.
In our opinion the conclusion reached by Mr. Bishop is supported by the better reasons. The primary object of punishment is the suppression of crime; and where both the prosecutor and defendant have violated the law, it is better that both be punished than that the crime of one should be used to shield the other.
When the plaintiff in a civil action is shown to have been guilty of a wrong in the particular matter about which he complains, he cannot ordinarily recover. But there is little chance to apply this rule to criminal prosecutions conducted by the state, the person defrauded being at most a prosecuting witness in the case, and not a party to the proceeding.
The language of our statute is plain. The false pretenses charged in this case are embraced within its express terms,
Petition denied.