148 P. 810 | Cal. Ct. App. | 1915
The defendant in this case, in an information filed in the superior court of the city and county of San Francisco, was charged with the felonious obtaining of personal property by false pretenses. The defendant's demurrer was allowed upon the ground that the information did not state facts sufficient to constitute a public offense. A judgment of dismissal was thereupon entered, from which the people have appealed.
The information charged the defendant with having induced one G. F. Vella, by means of false pretenses, to make and deliver to the defendant the following promissory note:
"$600. San Francisco, Cal., May 4, 1912.
"One day after date, 1912, at 3 o'clock P. M. of that date (no grace) for value received in gold coin of the government of the United States, I promise to pay to the order of Bank of Italy in this city six hundred dollars, with interest from date at the rate of seven per cent per annum until paid, payable monthly, both principal and interest payable in like gold coin. (Signed) BASILE CASSOU."
This note was indorsed by Vella, and following his signature as indorser appears the following:
"For value received . . . hereby waive presentation, due protest, notice of protest and notice of nonpayment. (Signed) G. F. Vella." *25
The information alleged that the note was of the value of six hundred dollars in gold coin of the United States, and that it was the personal property of Vella.
Section
An evidence of debt is personal property. (Pen. Code, sec. 7, subd. 12.)
Admittedly a promissory note in the hands of the payee or any other person than the maker, is an evidence of debt, and, as such, is personal property which may be the subject-matter of the offense of obtaining property by false pretenses. (People v. Summers,
This being so, it is apparent upon the face of the information that the subject-matter of the alleged false pretenses, viz., Vella's indorsement, was not property within the meaning of section
The case of People v. Nesbitt,
The case of People v. Stone, 9 Wend. (N.Y.) 183, is strongly relied upon to support the people's contention that it was not necessary for the information in the present case to allege that the note in question with Vella's indorsement thereon had been actually negotiated. That case, in so far as the principal point there decided is concerned, has no application to the facts of the present case. There under a statute which made it a crime "to obtain the signature of any person to any written instrument," the defendant was charged in an indictment containing three counts with obtaining the promissory note of one Filly, and his indorsement to three other promissory notes. The court in discussing objections to the indictment, *27 said: "The first and second counts of the indictment expressly aver that Filly was charged as indorser upon the notes mentioned therein and which it is alleged he was induced to indorse by false pretenses of the defendant, and that he had been obliged to pay and had actually paid the same. Filly could not have been charged as an indorser unless the notes had beennegotiated (italics are ours); and their payment by him, whoever was the holder at the time must have been for the use and benefit of the defendant for whose accommodation they were indorsed. The third count does not show that Filly ever paid the notes mentioned therein, or that Stone (the defendant) ever parted with them or put them in circulation, or that Filly ever suffered any inconvenience or loss in consequence of having signed them. For aught that appears they may have been immediately destroyed by Stone, or restored to Filly, or may now be in the hands of Stone, where they are incapable of being used to the prejudice of any of the parties to them. Our Revised Statutes . . . make it an offense in express terms to obtain the signature of any person to any written instrument by any false pretense, with intent to cheat or defraud another. Under this statute the offense is complete when the signature is obtained if it were obtained by false pretenses and with a fraudulent intent, although it may never be used to the prejudice of any person; but whether a note, where no use of it has been made, can be considered either as money or goods or chattels or a valuable thing may be questionable. It is, however, not important in this case as the objection has not been shown to exist in relation to the other two counts; and if any one count is good it is sufficient. That a note obtained by false pretenses and with a fraudulent intent, and which a party has actually used for his own benefit, is embraced within the spirit of the act as it stood before the Revised Statutes, I have no doubt." It will thus be seen that in the case last cited the court doubted that a promissory note not used could be considered as within the category of money, goods, chattels, or valuable things, and inferentially held that an indorser of a promissory note could not be charged as such unless the note had been actually negotiated. To this extent at least the case under discussion frustrates rather than fortifies the contention of the people here. That the point upon which the indictment in the case last cited was held to be good can have no application to the statute of this state under which *28 the information in the present case was drawn, is made manifest by the recital in the opinion that the indictment was founded upon a statute making "it an offense in express terms to obtain the signature of any person to any written instrument by any false pretense with intent to cheat or defraud another." If there be any doubt as to the scope and effect of the opinion in the case last referred to, that doubt is relieved by a consideration of the case of People v. Genung, 11 Wend. (N.Y.) 19, [25 Am. Dec. 594], where the same court, in an opinion by the same justice, said: "It was suggested upon the argument that the indictment was bad in not charging loss or prejudice to have been sustained by Conroy (the signer of the note). This was not necessary. This is a new offense created by the Revised Statutes. They have added to the statute as it stood before the obtaining by false pretenses of the signature of any person to any written instrument. The offense is complete when the signature is obtained by false pretenses with intent to cheat or defraud another. It is not essential to the offense that actual loss or injury should be sustained. This was held in the case of People v. Stone, 9 Wend. (N.Y.) 190. That case arose before the Revised Statutes . . . The offense charged was the obtaining of the indorsement of one Filly upon several notes by false pretenses. It was held that such indorsement, where the note actually passed and was made productive, was to be considered as money, goods, or chattels or other effects within the meaning of the act; but I expressed a doubt whether a note thus obtained, where no use had been made of it, would be considered either money, goods, or chattels or a valuable thing; but I also observed that under the Revised Statutes the offense was complete when the signature was obtained."
The case of Bargie v. United States, 30 Fed. Cas. No. 18,229, cannot be considered as an authority to support the sufficiency of the information in the present case. There the offense charged was founded upon an act of Congress which penalized the procurement by false pretenses of any instrument in writing for the payment of money or other valuable thing. In that case the second count of the indictment charged that the defendant by false pretenses procured the indorsement of the complainant of a sight draft drawn by the defendant upon a third party, and the court held that such an indorsement was an instrument in writing within the meaning *29
of the statute under which the indictment was drawn, and that therefore it was immaterial to the completion of the offense charged whether or not the indorser was ever called upon to meet the obligation of the indorsement. This conclusion and the reasoning upon which it is based cannot in our opinion be applied to section
Our examination of the remaining cases cited in support of the information discloses the fact that the decision in each instance was based upon the interpretation and application of statutes which, in defining the offense of fraud by false pretenses, cover and control the procurement of a signature to an instrument in writing or a valuable thing.
The judgment appealed from is affirmed.
Richards, J., and Kerrigan, J., concurred.