The opinion of the court was delivered by
Horton, C. J.:
i. power of court, tici™3®6'piac" The questions presented in the case for our consideration will be disposed of by us in the order in which they were raised. After the return of the sheriff had been made, and the reply thereto filed, the counsel for the respondent objected to the summoning of the prosecuting witness, and asked that the petitioner be remanded to the custody of the officer, as it appeared from the record that, upon complaint made that a criminal offense had been committed, a warrant describing the offense had been issued, the prisoner arrested, a preliminary examination duly had before the proper officer, and a finding made that the petitioner was guilty as charged in the complaint and warrant; that thereon bail had been fixed at $5,000; that the petitioner had not offered any bail, and had been legally committed for trial, and no question was made on account of any defect in the charge, or process. Under § 671 of the code, (ch. 80, Gen. Stat. 763,) it is expressly provided, that no court or judge shall inquire into the illegality of any judgment or process whereby the party is in custody, or dis*552charge him, when the term of commitment has not expired, when the party is in custody upon any process issued on any final judgment of a court of competent jurisdiction, or upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.” An order of commitment to hold a prisoner for trial, issued by a magistrate before whom a person is brought for examination, upon a charge of having committed an offense, after such examination is concluded, and a finding made that it appears that the prisoner is guilty as charged in the complaint and warrant, is not “ a process issued on any final judgment of a court of competent jurisdiction;” nor is such a commitment included in any process named in § 671 of the code. Plence, there is no prohibition in said section to prevent a court or judge from inquiring into the legality of the imprisonment of a person under a commitment of an examining magistrate. ■
Sec. 672 of the code, (Gen. Stat. 1868, 763,) provides: “No person shall be discharged from an order of commitment issued by any judicial or peace officer for want of bail, or in cases- not bailable, on account of any defect in the charge or process, or for alleged want of probable cause; but in all such cases, the court or judge shall summon the prosecuting witnesses, investigate the criminal charge, and discharge, let to bail, or recommit the prisoner, as may be just and legal, and recognize witnesses when proper.” Under this section we hold that when a writ of habeas corpus issues on a complaint of illegal imprisonment, for alleged want of probable cause, the judge or court issuing the writ may, even in cases where there is no defect in the charge or process, summon the prosecuting witness, investigate the criminal charge, and discharge, let to bail, or recommit the prisoner, as may be just and legal. This section gives'a party committed for a crime by an examining magistrate an appeal from his commitment by virtue of the writ of habeas corpus. The People v. Tompkins, 1 Parker’s (N. Y.) Crim. Rep. 224, 240. Upon this ground the court overruled the objection to the hearing of evidence in the case, *553and the motion to remand upon the record. But the court ordered, on its own motion, that the petitioner should amend his reply by setting out therein as fully and specifically as possible the testimony given by the various witnesses before the examining magistrate, and named in the return of the sheriff. The better practice is, where a petition is presented for a writ of habeas corpus, for alleged want of probable cause, to embody in the petition all the testimony taken before the examining magistrate. When this evidence has been reduced to writing by the magistrate, or under his direction, a copy thereof should be obtained, with the certificate of the magistrate thereto. When such testimony is not reduced to writing, there usually is but little difficulty in setting out the material and important matters testified to.
2.j?aisepreten-ses; belief of injured party¡ testify. Upon the hearing of the ease on the merits, the petitioner objected to the witness John Hood testifying that he was induced to part with the $1,500, and the certified check, on the statements and representations of Snyder, on the ground that it was incompetent, and was calling: for the . . „ , ° secret, mental emotions ot the witness. The objection was not well taken. This was a material fact to be established. It was proper for this court to know what influence the representations of Snyder had upon the witness. If* they had none at all, the prosecution must have failed. “The fact was sought after, and not the opinion of the witness.” People v. Herrick, 13 Wend. 87; People v. Sully, 5 Parker’s (N. Y.) Cr. Rep. 142; People v. Miller, 2 Parker’s (N. Y.) Cr. Rep. 197; Thomas v. The People, 34 N. Y. 351. Objections were also taken to Hood’s testimony that he believed the representations made to him by Snyder on the 23d, 24th, 25th, and 28th of November. The objections were overruled, and for the reasons above stated, we think the evidence competent. It is indispensable to the consummation of the crime of obtaining money or property under false pretenses, that the person who has been induced to part with his money or property thereby must believe the pretense is true, and, confiding in its truth, must by rea*554son of such confidence have been cheated and defrauded. We do not mean by this ruling that such evidence is the best, nor the most reliable; nor that it is necessary for the prosecutor to state he believed and relied upon the pretense. All of this may be inferred. We simply hold the evidence admissible.
3.what constipretenses. The material question however in this case, is, whether on the evidence submitted to us an offense is made out against Snyder for false pretense, within the statute, in his obtaining from Hood & Kincaids, on November 25th, the $1,500 in currency, and the certified check of $1,500. The counsel for the petitioner contended that there was no evidence of the procuring of the money or check by any false pretense. Fif'd: Inasmuch as Hood, at the time he let Snyder have the money and check on the 25th of November had an absolute order in the form of a telegram from Painter & Son to honor Snyder & Co.’s drafts for four thousand dollars, and had previously refused to pay the money on a letter of credit, which he construed as requiring him to see to the shipping of the stock to Painter & Son, it is conclusively shown that such telegraphic order of Painter & Son was the sole inducement by which the money and check were parted with by Hood. Second: That the representation made by Snyder to Hood, that he had bought the pick of a large lot of cattle, about 100 head, was true on the said 25th, when the money and check were obtained; and that the statement that the cattle would be shipped to Painter & Son at Kansas City, was a representation or assurance in relation to a future transaction, and did not amount to a statutory false pretense. As to the first proposition of counsel of the petitioner for his discharge, we answer, that we are not satisfied that Hood parted with the money and check solely on the telegram of credit of the 25th. The testimony tends to show that he was induced to part with the property in controversy, partly on that telegram, partly on the representation of Snyder that he had bought about 100 head of cattle, and partly on the statement that he would ship the cattle to Painter & Son. In an *555examination of this character, we are not to pass absolutely on the guilt or innocence of the prisoner: if we shall find an offense has been committed, and there is probable cause to believe the prisoner guilty thereof, the prisoner should be committed for trial. As different motives were assigned by the prosecutor as operative in producing the delivery of the . money and check to Snyder, the examining magistrate, and this court, is only to ascertain that there is probable cause to believe that the pretenses proved to have been false and fraudulent, if within the statute, were a part of the moving causes which induced Hood to part with the property, and that Snyder would not have obtained the same if the false pretense had not- been superadded to the telegraphic order of Painter & Son of November 25th, to authorize the holding of Snyder for trial. It is not necessary, to constitute the offense of ob- . taining goods by false pretenses, that the owner should have been induced to part with his property solely and entirely by pretenses which were false; nor need the pretenses be the paramount cause of the delivery. It is sufficient, if they are a part of the moving cause, and without them the prosecutor would not have parted with the property. People v. Haynes, 14 Wend. 547.
the statute. 4. What false pretense is not within This leads us to examine the second proposition uponwhich the counsel for the petitioner claims his release, and to consider the representations made by Snyder, “that he had bought the pick of a large' lot of cattle, about 100 head,” and that “he would ship them to Painter & Son.” represeritatioii was substantially true when the money and check were obtained on the 25th of November. At that time the cattle had been contracted for by Snyder with Glasscock, and a part of the consideration paid. This representation when made on the 23d, or 24th, of November, was false. On the 25th, it had become true. Is a pretense, which was false when made, within the statute, if true when the property is parted with? We think not. The pretense employed is only the means by which the offense is perpetrated. .The substance of the offense consists in the *556obtaining of the property, and thereby with a fraudulent intent depriving the lawful owner of that which properly belongs to him. If a party by his own acts makes the false representations good, before obtaining the property, there is no consummation of the crime; and there is no criminal attempt, for it follows, that, when there is a change of purpose on the part of a person seeking to obtain property by a false pretense, before any other wrongful act is committed than the making of the false pretense, the crime of the attempt is taken away. The fact that in this case, Snyder never abandoned the scheme to defraud some one, does not militate against the conclusion, that the pretense must be false in fact when the property is parted with. How can it be said that Hood relied upon a false representation as to the purchase of the cattle when he delivered the money and check, if at that time the representation had become true? No property was parted with by Hood on the 23d, or 24th. The representation then made by Snyder as to buying the cattle, was true, on the 25th, and before he obtained the money, or check; and if he is to be held for the commission of a crime by obtaining property under false pretenses, it must be upon some other representation than the representation on the 23d, or 24th, as to having “bought the pick of a large lot of cattle.”
„ „ , „ pSíorpwscmt fa°ts. As to the representation of Snyder, “that he would ship the cattle to Painter & Son at Kansas City,” we follow authority in holding such statement is not a statutory false pretense. The false pretense relied upon to constitute an offense under the statute, must relate to a past event, or t° some present existing fact, and not to something to happen in the future. A mere promise is not sufficient. Rex v. Young, 3 Term R. 98; Rex v. Lee, L. & C. 309; Commonwealth v. Drew, 19 Pick. 179; State v. Evers, 49 Mo. 542; Dillingham v. State, 5 Ohio St. 280; Burrow v. State, 12 Ark. 65; State v. Magee, 11 Ind. 154; The State v. Green, 7 Wis. 676. The representation that the cattle would be shipped to Painter & Son, related to an event which was thereafter to happen. It was a promise or assur*557anee, of a future transaction.- Upon the evidence, we are therefore compelled to say, that as the only offense charged in the complaint, and in the warrant against Snyder, was the obtaining of the $1,500 in currency, and the certified check of $1,500 on November 25th, as 'therein stated, and as the order of commitment was issued on the finding of the examining magistrate, that there was probable cause to believe Snyder “guilty as charged in the complaint and warrant,” there is no legal authority for holding the petitioner in custody, and he must be discharged. It is perhaps unnecessary to add, that in point of moral turpitude Snyder is as guilty in obtaining the property of Hood & Kincaids on the 25th of November on a false promise, if such be the fact, as if such pretense was within the statute. The criminal law however cannot reach the perpetrator of every fraud. “The statute may not regard naked lies as false pretenses.” It has been well said, “The operation of the wisest laws is imperfect and precarious; they seldom inspire virtue; they cannot always restrain vice; their power is insufficient to prohibit all that they condemn, nor can they always punish the actions which they prohibit.” We have intentionally abstained from commenting upon the transactions of the 28th of November, when Snyder is alleged to have- obtained a certified check of $850, because there is nothing in the proceedings before the magistrate, or in this court, to prevent the petitioner from being arrested, if any complaint is made, therefor. Whether a crime has been committed in that regard, and whether there is probable cause to believe the petitioner guilty thereof, may be a matter of future examination and judicial determination. In this investigation, the testimony of facts, subsequent to the 25th, was received by us only to explain the transactions of the 25th of November, and to shed light upon the intent of Snyder.
That the force of this decision may not be misconstrued, we may properly say, that the evidence shows there was no collusion between the firm of Painter & Son, and Snyder, and that the purchase of the cattle by Snyder of Glasscock *558on the morning of the 25th was made in good faith. It is evident however, that Snyder never intended to ship any of the cattle to Painter & Son, and all his statements to that effect were in pursuance of his scheme to successfully carry out his fraudulent purpose.
Let the petitioner be discharged.
All the Justices concurring.