| NY | Jun 24, 1884
Lead Opinion
The defendant was tried and convicted in the Eensselaer County Sessions for obtaining of William H. Meeker, on March 30, 1876, the sum of $575 by false pretenses. The conviction was affirmed at the General Term of the Supreme Court, and then he appealed to this court. The facts of the case may be summarized as follows: In and prior to March, 1873, Meeker was a Methodist minister and the defendant was a reputable citizen of Schaghticoke, a merchant of considerable means, reputed to be wealthy and in business affairs skillful and sagacious. They were intimate friends, and there existed intimate social relations between their families. Meeker became aware that the defendant dealt somewhat in stocks, and that he had been successful in making in that way some money for himself and others; and having about ten thousand dollars invested in small sums in various ways, he conceived the idea of operating in stocks through the defendant, mainly for a more profitable and less troublesome investment of his means. The.defendant consented to act for him as his friend, and without compensation. It was finally agreed that the defendant
To this letter Meeker replied the next day, speaking of his resources and his efforts to get in his money, desiring to know how long he could carry the one hundred shares of stock upon payment by him of $2,000, expressing a wish that some of his money might be used to speculate in Lake Shore, and in Wabash stocks, and saying among other things, “ as you are disposed to help me a little, I wish you to practice that great rule, do by me as you do for yourself, and I will take the results.” “You understand now my resources and wishes, I think, and if you think it is best for me or for yourself to venture my $4,000, in this way, then let drive and I will send moneys to you as fast as they come, and pay you interest on any moneys you use of your own for my benefit.” “ Not that I care about speculating, but I would like to have as' much lawful interest in the way of dividends as my neighbors have,” “all of which I leave now to your judgment.” On April 9, before the defendant had received the full sum of $2,000, he purchased through his brokers the one hundred shares of New York
Unfortunately for both parties, in the Autumn of 1873 the great financial panic -occurred, which caused great stringency in money, and .great depreciation in the price of stocks; and on March 11, 1874, after he had received of Meeker, including the dividends credited, about $5,000, pressed by his financial necessities, without the knowledge or consent of Meeker, he sold the stock. After -that, Meeker continued to send him money from time to time to apply upon the stocks, and he continued to acknowledge the receipt of the money so sent, and to send statements -to Meeker showing credits for the money and for dividends as if made upon stock actually held by him. In a letter to Meeker dated March 12, 1875, he advised him not to sell -the. stocks until times were better, and said that he would carry it just as long .as he wished; and in a letter dated March 15, he said : “You will certainly do well not to sell until times .are better, for then you will get a higher price.” They met .in the Autumn of 1875 and had some conversation about the stock and the account, in which Meeker proposed thereafter1 to pay his money directly to the brokers instead -of the defendant, but it was suggested by the defendant that as he had .charge of the matter and there was some discrepancy between him and the brokers about the account, he should continue to make his payments to him. On January 12, 1876,
It must be noticed that not a word passed between Meeker and the defendant, personally, from the Fall of 1875 until long after the payment of-the $575.
The defendant at no time asked Meeker to pay that or any other sum, and the only false representations upon which the people rely are those contained in the statements made in the accounts sent to Meeker by the defendant on and prior to January 12,1878.
We have thus given an outline of all the evidence tending to establish the crime of which the defendant was convicted. A careful examination and consideration of all the facts, has left upon our minds a strong conviction that the defendant was not guilty. He ought not to have sold the stock without Meeker’s consent; but in doing so he was at most guilty of its conversion. After he had sold it, he ought to have informed
In order to constitute the crime of obtaining property by false pretenses, it is not sufficient to prove the false pretenses, and that property was obtained thereby ; but it- must be proved that the false pretenses were made with intent to cheat and defraud another. Here there was an entire failure to prove that necessary element of the crime. It is impossible to say that the statements as to the dividends, in the letter of January, 1876, were made to induce the payment of the $575, or to induce any further payments. The defendant undoubtedly wished Meeker to understand that he was still carrying the stock, not for the purpose of inducing him to make further payments, but undoubtedly so that Meeker should not complain of, charge him with, or hold him for the conversion of his stock. Another essential element of the crime which the people in all cases of this kind are bound to establish, is that the money was paid, or the property parted with in reliance upon and under the inducement of the false pretenses alleged. Here it is not a just inference from the evidence that this $575 was paid in reliance upon the representation that the defendant was still holding and carrying the stock. At that time Meeker had implicit confidence in the financial ability, the business sagacity and the personal integrity of the defendant. For aught that appears in the evidence, he would have continued his payments relying upon the defendant to deliver the stock when it had been fully paid for, if he had known, that to tide over a present necessity, he had sold the stock. And so, when Meeker was asked the direct question, he testified that he relied entirely upon the promise of the defendant that he would purchase the stock and deliver it to him after he had fully paid for it, and that his promise to deliver the stock was the only thing he
We do not sit here to square the conduct of the defendant by any code of morality, or any standard of integrity ; the sole question is whether the proof was sufficient to show that he had committed the crime with which he stood charged, and we are of the opinion that it utterly failed.
It does not relieve ns from our responsibility that the jury have found the defendant guilty. The point was taken at the trial on his behalf, that there was not evidence sufficient to establish the crime, and that he should be discharged on that account; and that makes it our duty to determine whether the evidence was sufficient, and finding that it -was insufficient, it is our duty to reverse the judgment entered upon the verdict of the jury.
But if so far wrong, and the case was one for the jury, errors were committed at the trial, of which the defendant can justly complain. Against his objection, the people were permitted to show payments of money by Meeker to him from time to time, before and after the payment of the $575.- Proof of such payment was made for the purpose of showing the guilty intention of the defendant, and was competent only for that purpose. The defendant, as a witness in his own behalf, was permitted to testify that he did not, at the time he received the $575, intend to defraud Meeeker. He was also asked this question : “ Was your intention, when you received moneys from time to time from Meeker to defraud him ?” That was objected to as incompetent and inadmissible, and the objection was sustained. As the intent with which those moneys were received was one of the material inquiries he should have been permitted to show that he did not receive it with any fraudulent intent. The case went to the jury in such a way as to enable the people to claim, that not only the $575, was received by the defendant with the intent to defraud Meeker but that all the other moneys were received in the same way, and that the receipt of all the
The defendant, after answering that at the time he received the $575, he did not intend to defraud Meeker, was also asked to state his intention at the time he received it, and the question was objected to on the part of the people and the objection was sustained. We think that ruling was also erroneous. Upon the facts of the case as they were developed at the trial, it was claimed by the defendant that when ho received the $575, it was his intention to replace the stock, to respond to Meeker whenever called upon for the stock, and that he was at the time able to do so. That was a theory he had a right to prove if he could,, and the proof would bear upon the final issue, whether he intended to cheat and defraud him; and hence he should have been permitted to answer the question.
The judge charged the' jury as follows : “ If you find that the defendant made the representations charged in the indictment, and that they were false, and that the defendant knew they were false when he made them, then the law presumes the fraudulent intent.” That portion of the charge was excepted to by the defendant, and we think the exception well founded. The crime of false pretenses is not made out by simply showing that the representations charged in the indictment were made, and that they were false, and that the defendant knew them to be false. The jury, from those facts and from all the other facts, may infer a fraudulent intent; but the law does not presume a fraudulent intent. That is to be found as a fact by the jury, and is not an inference of law.
The indictment alleged that Baker did purchase this stock on April 9, 1873. The people, against the objection of the defendant, gave some evidence on the trial tending to show that the defendant never had the stock; and his counsel requested the judge to charge that under the indictment the jury must find that Baker had the stock April 9,1873 ; and the judge declined. That should have been charged. It was so alleged in the indictment, and the people could not take any benefit from any proof tending to show the contrary.
We are therefore of opinion that the defendant was improp
Bapallo, Danforth and Finch, JJ., concur.
Dissenting Opinion
The defendant was tried and convicted on March 30, 1876, for obtaining the sum of $575 from one W. H. Meeker by false pretenses. The indictment charged that the defendant, on the day named, represented that he had previously bought for the said Meeker one hundred shares of the capital stock of the Hew York Central and Hudson Biver Bailroad Company, and that he then and there held the said stock for the benefit of the said Meeker; that the stock had been purchased on a margin, by paying a part of the purchase price; and that the defendant still had it, to be delivered to Meeker on the receipt of the balance of the purchase price. The indictment then alleged that Meeker, believing said false piretenses and representations, was induced thereby to deliver to the defendant the $575 before named, and also other sums of money, aggregating over $8,000, whereas in truth and fact, although the defendant had, at Meeker’s request, bought this stock for Meeker’s account on April 9, 1873, yet he had sold it on March 11, 1874, without informing Meeker, but on the contrary falsely pretended and represented, and particularly on the day named, that he still held the stock and would deliver the same over to Meeker when he h?„d paid to him the balance of the purchase price thereof, and that these pretenses were false and untrue, which was known to the defendant at the time of making the same. The counsel for the defendant claims that the conviction was erroneous upon the ground that no case was made out establishing that the money was obtained by false and fradulent pretences. The alleged false ■pretense was that the defendant had represented that he had purchased, and that, at the time when the money was paid, he held for Meeker one hundred shares of the capital stock of the New York Central Railroad Company. There was evidence upon the trial which established an agreement between Meeker and the defendant in March, 1873, by which Meeker was to send the defendant the sum of two thousand dollars,
On April 9,1873, the defendant' informed Meeker by letter that he had bought for him one hundred shares of Mew York Central stock at a cost of $10,175.80, and'inclosed in the letter a statement to that effect. Meeker continued making payments on account of the stock, and up to March 30, 1876, when the payment was made for the obtaining of which the defendant was indicted, had paid $6,633.72. During this period the defendant wrote to Meeker stating that he had credited him with the dividends on the stock and stating the amount thereof, and also, on March 15,1875, sent him a statement of the sums received from him, which, exclusive of dividends, amounted to $5,233.27. In January, 1876, defendant sent Meeker another statement, which he declared to be Meeker’s credits from January, 1875, to January, 1876, and which contained five items of dividends received by him and credited to Meeker, amounting to the sum of $1,000 in that single year. The money sent to defendant was paid by Meeker, as he testifies, in reliance upon the representations made by the defendant that he had purchased the stock and in the belief that he held it for him. The correspondence up to .March 8, 1879, clearly showed that defendant held the stock for Meeker. While thus treating the stock as belonging to Meeker, the proof shows that the defendant had sold the same on March 11, 1874, and that, between that time and the time he received the $575 stated in the indictment, although he had credited the dividends as already stated, he had in fact only received a single dividend on the stock. The statements made, already referred to, were representations to the effect that the defendant still held the stock: they were relied upon by Meeker, as he positively testifies, and he parted with his money in the belief that they were true. They were utterly false, as the defendant had sold the stock before the money stated in the indictment was obtained from Meeker. In good faith and in common honesty, before he received any
It is further shown that, after the money was obtained for which the indictment was found, Meeker continued his payments, in ignorance of the sale until he had paid the defendant the full amount due for the one hundred shares of stock in 1877; that he never received any stock; and that the defendant became insolveut and utterly unable to pay back the money he had obtained from him. It is also shown that in November, 1879, defendant stated to Meeker, in the presence of one Converse, that he had never bought a dollar’s worth of stock for him, .and afterwards, on the December 5, 1879, the defendant wrote to said Converse, sending him a statement of his business with Meeker, and saying that he had bought for Meeker in his own name the stock in question. The evidence on the part of the defendant tended to show, and it was claimed established, that the arrangement between Meeker and the defendant was a mere speculation ; that Meeker was'to furnish a $2,000 margin and Baker was to carry the stock in his own name, as Meeker did not wish to have his name known in the transaction; that after ■ the purchase was made the remaining moneys sent to Baker were to be used by him in speculating in other stocks, and the profits and the moneys sent were to be applied toward paying in full the stock purchased first, and that the whole transaction was left to Baker’s judgment with an unlimited right to buy and sell. The defendant’s counsel further insists that the testimony of the prosecutor, on cross-examination, shows that he relied solely on defendant’s promise to deliver the stock to him when paid for. Although Meeker testified to that effect, his evidence must be considered
As the case stands, there is certainly no ground for claiming that as a matter of law no false representations were made ; and at most there was only a promise on the part of the defendant to purchase the stock, and, when the whole amount of money had been paid which was required for that purpose, to deliver the scrip for the same to Meeker.
It is insisted that no representations were made by the defendant at the time when the money was paid, and that the defendant, by his agreement with Meeker, was to give credit for the dividends on the stock. The answer to this position is, that the evidence does not establish that the defendant was to credit Meeker with the dividends as if actuality paid, without a purchase of the stock, and it does not appear that either de
The defendant insists that the court erred in not allowing him to answer the question whether his intention was to defraud when he received money from time to time from Meeker. The court allowed the defendant to answer as to his intention to defraud Meeker when he received the $575 for the obtaining of which he was indicted. This is the extent to which the rule, authorizing parties to testify as to their intent, has ever been carried. There is no authority allowing a party to give evidence of this description as to his general intention in regard to matters which are outside of the particular issue which is upon trial. Where he is tried upon an indictment charging him with fraudulent pretenses he has a right specially to deny the charge and to testify that he Jiad no intention to defraud at the time. The decisions of this court have never gone beyond what the defendant was allowed to state upon the trial of the charge made in the indictment against him. Any other rule would open the door very wide for the examination of matters in regard to which no specific charge was made and would not aid the defendant. The prosecution only had a right to claim an intent to defraud in reference to the specific sum named in the indictment and the defendant was only authorized to contradict such intent in respect to this charge. It follows that there was no error in the exclusion of the evidence offered. It is also insisted that the court erred in allowing the prosecution to prove that the defendant owed another clergyman. The defendant had previously been cross-examined
The other points made in regard to the admission or rejection of evidence offered are sufficiently considered in the opinion of the General Term and do not require special examination.
Several requests were made to charge the jury by the defendant’s counsel, which were refused and exceptions taken to the rulings in regard thereto. We are unable to see that any
The request to charge that the jury, in determining whether or not Meeker acted upon or was influenced by the representations made by Baker in parting with his money, have no right to consider the evidence as to Baker’s fradulent intent or as to his false representations was also properly refused for ,the reasons stated in the opinion of the General Term. The distinction existing between the case at bar and the case of Therasson v. People (82 N. Y. 242) which is relied upon as authority for the rule laid down in the request, is there distinctly pointed out, and concurring in the views there expressed a further discussion of the subject is not required. The other requests to charge do not demand a special consideration. After a careful examination of the various questions raised, we are of the opinion that no error was committed upon the trial and that the judgment of conviction should be affirmed.
Lead Opinion
The defendant was tried and convicted in the Rensselaer County Sessions for obtaining of William H. Meeker, on the 30th day of March, 1876, the sum of $575 by false pretenses. The conviction was affirmed at the General Term of the Supreme Court, and then he appealed to this court. The facts of the case may be summarized as follows: In and prior to March, 1873, Meeker was a Methodist minister, and the defendant was a reputable citizen of Schaghticoke, a merchant of considerable means, reputed to be wealthy, and in business affairs skillful and sagacious. They were intimate friends, and there existed intimate social relations between their families.
Meeker became aware that the defendant dealt somewhat in stocks, and that he had been successful in making in that way some money for himself and others; and having about $10,000 invested in small sums in various ways, he conceived the idea of operating in stocks through the defendant, mainly for a more profitable and less troublesome investment of his means. The defendant consented to act for him as his friend, and without compensation. It was finally agreed that the defendant was, through his brokers, to buy for Meeker one hundred shares of New York Central railroad stock, upon a margin of $2,000, and carry the stock through his brokers for him until he could pay for the same. After the payment of the first $2,000, as fast as Meeker could gather in his money, he was to pay it to the defendant and he was to pay it to the brokers, or use it in his business, allowing interest on the same, or in speculating in other stocks for Meeker the profits of which were ultimately to be used in paying for the New York Central stock which Meeker desired to hold as an investment. On the 28th day of March, 1873, the defendant wrote Meeker a letter which acknowledged the receipt of a sum of money to be used as the *344 margin for the purchase of the stock, and after giving some facts and opinions about stocks closed as follows: "I have given you the facts for you to decide, and let me know your decision. You cannot make much mistake in the stocks I have mentioned. You can have all the benefit (if any) of my experience; but do not forget that all human judgments are fallible, and I may be mistaken in my opinions. You should inform yourself as soon as possible. My opinion is, there will be a large advance in all railroad stocks, except such as have been inflated." To this letter Meeker replied the next day, speaking of his resources and his efforts to get in his money, desiring to know how long he could carry the one hundred shares of stock upon payment by him of $2,000, expressing a wish that some of his money might be used to speculate in Lake Shore and in Wabash stocks, and saying, among other things, "as you are disposed to help me a little, I wish you to practice that great rule, do by me as you do for yourself, and I will take the results." "You understand now my resources and wishes, I think, and if you think it best for me or for yourself to venture my $4,000 in this way, then let drive, and I will send moneys to you as fast as they come, and pay you interest on any moneys you use of your own for my benefit;" "not that I care about speculating, but I would like to have as much lawful interest in the way of dividends as my neighbors have;" "all of which I leave now to your judgment." On the 9th of April, before the defendant had received the full sum of $2,000, he purchased through his brokers the one hundred shares of New York Central stock at a total cost of a little over $10,000, and reported the purchase by letter to Meeker. They met soon after and had a conversation in which the defendant told him that he need not hurry up his collections, or incommode himself, as the stock had been purchased. After that they did not meet for about a year and a half, and their business was transacted by correspondence. Meeker, from time to time, sent him more money, suggesting in some of his letters that he should use his money in speculating in western stocks so as to make money to aid in paying for the New York Central stock. The defendant, in the letters he wrote, acknowledged *345 the receipt of money, gave his opinion about stocks and sent statements of the account between them. The defendant was to carry along the stock in this way until, by the money sent him by Meeker and the dividends on the stock, it was paid for, and then, and not until then, Meeker was to have the stock certificate.
Unfortunately for both parties, in the fall of 1873 the great financial panic occurred, which caused great stringency in money and great depreciation in the price of stocks; and on the 11th day of March, 1874, after he had received of Meeker, including the dividends credited, about $5,000, pressed by his financial necessities, without the knowledge or consent of Meeker, he sold the stock. After that Meeker continued to send him money from time to time to apply upon the stock, and he continued to acknowledge the receipt of the money so sent, and to send statements to Meeker showing credits for the money, and for dividends as if made upon stock actually held by him. In a letter to Meeker, dated March 12, 1875, he advised him not to sell the stock until times were better, and said that he would carry it just as long as he wished; and in a letter dated March 15, he said: "You will certainly do well not to sell until times are better, for then you will get a higher price." They met in the fall of 1875 and had some conversation about the stock and the account, in which Meeker proposed thereafter to pay his money directly to the brokers instead of the defendant, but it was suggested by the defendant that as he had charge of the matter and there was some discrepancy between him and the brokers about the account, he should continue to make his payments to him. On the 12th day of January, 1876, the defendant wrote him a letter giving him a statement of his credits for dividends upon the stock, besides credits for several payments of money. He closed the letter in language not uncommon with deluded and sanguine dealers in stocks, by saying: "I think stocks have about reached their lowest prices. The market is very buoyant. There will be a prodigious advance in them before long. Bottom has been touched." Thereafter, without any further meeting or communication *346 between them, on the 30th day of March, Meeker sent him $575, for which he gave a receipt, and that is the sum which he is charged with obtaining by the false pretenses. Afterward Meeker kept on sending the defendant money which the defendant continued to acknowledge, and this course of business lasted until April 13, 1877, when the defendant gave Meeker a receipt for a small sum which was stated to be in full payment for the one hundred shares of stock. The correspondence between the parties, which continued down into the year 1879, shows that the defendant was financially embarrassed, but that he was hopefully struggling against the adverse tide, and waiting for a favorable turn in the stock market. In the end he became insolvent, and all his property and all Meeker had paid him seem to have passed into the Wall street maelstrom, where so many fortunes of sanguine and confiding speculators have been engulfed.
It must be noticed that not a word passed between Meeker and the defendant, personally, from the fall of 1875 until long after the payment of the $575. The defendant at no time asked Meeker to pay that or any other sum, and the only false representations upon which the people rely are those contained in the statements made in the accounts sent to Meeker by the defendant on and prior to January 12, 1876.
We have thus given an outline of all the evidence tending to establish the crime of which the defendant was convicted. A careful examination and consideration of all the facts has left upon our minds a strong conviction that the defendant was not guilty. He ought not to have sold the stock without Meeker's consent; but in doing so he was at most guilty of its conversion. After he had sold it, he ought to have informed Meeker of the sale so that he could have withheld further payments, or at his option, continued the payments, relying upon the ability of the defendant to furnish the stock when it should be paid for. But for withholding this information he was not guilty of any crime. He ought not to have used language in his letters and statements sent to Meeker, substantially conveying information that he was still carrying the stock. So far as *347 his letters and statements convey that information, they were undoubtedly false; but a mere false statement is not punishable as a crime. It is not claimed that the defendant, at the time of the original arrangement with Meeker to receive his money for the purchase of the stock, had then formed any plan or intention to defraud or swindle. It is entirely clear upon the evidence that he intended then, in good faith, to aid Meeker to make money by operating in stocks, and to procure for him a profitable and safe investment. Having been somewhat successful in stock operations, he was sanguine that his good fortune would continue and that his sagacity would enable him to aid Meeker. There is not a particle of evidence which justifies the inference that when he sold the stock he meant to defraud Meeker. At that time, so far as the evidence tends to show, he had abundant property left after the sale to respond to any claim of Meeker. There is no reason to doubt that he made the sale of the stock to relieve himself from what he then believed to be a temporary embarrassment, expecting to be able to replace the stock, and in any event to deliver it whenever Meeker should pay for it. It is not a just inference from the evidence that when, on the 12th day of January, 1876, more than two months before the $575 was paid, the defendant entered in an account then rendered to Meeker credits for dividends paid upon the stock, as if he were still holding the stock for him, he made such entries for the purpose of inducing Meeker to make further payments. As between himself and Meeker, the latter was entitled to such credits, and it was simply a mode of stating the account between him and Meeker, as an account would have to be stated whenever the stock should be fully paid for and the time should come for its delivery. Those statements in the account were not made to induce any payment or any action on the part of Meeker. He at no time pressed Meeker for payments or asked him to make payments, and whatever payments were made by Meeker at any time were voluntarily made. It is not a just inference from the evidence that on the 12th of January, or at any time before the $575 was paid, the defendant had conceived any design to swindle *348 or defraud Meeker. He was evidently confident and sanguine that a turn in the stock market would bring him out all right and enable him to perform his entire obligation to Meeker in reference to the stock.
In order to constitute the crime of obtaining property by false pretenses, it is not sufficient to prove the false pretenses, and that property was obtained thereby; but it must be proved that the false pretenses were made with intent to cheat and defraud another. Here there was an entire failure to prove that necessary element of the crime. It is impossible to say that the statements as to the dividends in the letter of January, 1876, were made to induce the payment of the $575, or to induce any further payments. The defendant undoubtedly wished Meeker to understand that he was still carrying the stock — not for the purpose of inducing him to make further payments, but undoubtedly so that Meeker should not complain of, charge him with, or hold him for conversion of his stock.
Another essential element of the crime, which the people in all cases of this kind are bound to establish, is that the money was paid, or the property parted with in reliance upon and under the inducement of the false pretenses alleged. Here it is not a just inference from the evidence that this $575 was paid in reliance upon the representation that the defendant was still holding and carrying the stock. At that time Meeker had implicit confidence in the financial ability, the business sagacity, and the personal integrity of the defendant. For aught that appears in the evidence he would have continued his payments relying upon the defendant to deliver the stock when it had been fully paid for, if he had known that, to tide over a present necessity, he had sold the stock. And so when Meeker was asked the direct question, he testified that he relied entirely upon the promise of the defendant that he would purchase the stock and deliver it to him after he had fully paid for it, and that his promise to deliver the stock was the only thing he relied upon. He did not testify as he could if it had been true, that he relied upon the representations of the defendant that he still continued to carry the stock. It must be *349 borne in mind that mere silence and mere suppression of the truth, the mere withholding of knowledge upon which another may act, is not sufficient to constitute the crime of false pretenses.
We do not sit here to square the conduct of the defendant by any code of morality, or any standard of integrity; the sole question is whether the proof was sufficient to show that he had committed the crime with which he stood charged, and we are of the opinion that it utterly failed.
It does not relieve us from our responsibility that the jury have found the defendant guilty. The point was taken at the trial on his behalf, that there was not evidence sufficient to establish the crime, and that he should be discharged on that account; and that makes it our duty to determine whether the evidence was sufficient, and finding that it was insufficient it is our duty to reverse the judgment entered upon the verdict of the jury.
But if so far wrong, and the case was one for the jury, errors were committed at the trial of which the defendant can justly complain. Against his objection, the people were permitted to show payments of money by Meeker to him from time to time before and after the payment of the $575. Proof of such payments was made for the purpose of showing the guilty intention of the defendant, and was competent only for that purpose. The defendant as a witness in his own behalf was permitted to testify that he did not, at the time he received the $575, intend to defraud Meeker. He was also asked this question: "Was your intention, when you received moneys from time to time from Meeker, to defraud him?" That was objected to as incompetent and inadmissible, and the objection was sustained. As the intent with which those moneys were received was one of the material inquiries he should have been permitted to show that he did not receive them with any fraudulent intent. The case went to the jury in such a way as to enable the people to claim, that not only the $575 was received by the defendant with the intent to defraud Meeker, but that all the other moneys were received in the same way, and that the receipt of all the moneys had a tendency to show with *350 what intent the $575 was received; and hence the defendant clearly had the right to show that he had no fraudulent intent in receiving any of it.
The defendant, after answering that at the time he received the $575 he did not intend to defraud Meeker, was also asked to state his intention at the time he received it, and the question was objected to on the part of the people, and the objection was sustained. We think that ruling was also erroneous. Upon the facts of the case as they were developed at the trial, it was claimed by the defendant that when he received the $575 it was his intention to replace the stock, to respond to Meeker whenever called upon for the stock, and that he was at the time able to do so. That was a theory he had a right to prove if he could, and the proof would bear upon the final issue whether he intended to cheat and defraud him, and hence he should have been permitted to answer the question.
The judge charged the jury as follows: "If you find that the defendant made the representations charged in the indictment, and that they were false, and that the defendant knew they were false when he made them, then the law presumes the fraudulent intent." That portion of the charge was excepted to by the defendant, and we think the exception well founded. The crime of false pretenses is not made out by simply showing that the representations charged in the indictment were made, and that they were false, and that the defendant knew them to be false. The jury, from those facts and from all the other facts, may infer a fraudulent intent; but the law does not presume a fraudulent intent; that is to be found as a fact by the jury, and is not an inference of law.
The indictment alleged that Baker did purchase this stock on the 9th day of April, 1873. The people, against the objection of the defendant, gave some evidence on the trial tending to show that the defendant never had the stock; and his counsel requested the judge to charge that, under the indictment, the jury must find that Baker had the stock April 9, 1873, and the judge declined. That should have been charged. It was so alleged in the indictment, and the people *351 could not take any benefit from any proof tending to show the contrary.
We are, therefore, of opinion that the defendant was improperly convicted, and that the judgment should be reversed and a new trial ordered.
All concur, except RUGER, Ch. J., ANDREWS and MILLER, JJ., dissenting.
Judgment reversed.