82 Ind. 221 | Ind. | 1882
The appellant was indicted in the Huntington Circuit Court, under section 288 of the act defining public offences, R. S. 1881, sec. 2204, for obtaining money by means of a false token or writing. The indictment was in three' counts, but the court sustained the appellant’s motion to quash the third, and, overruling the motion as to the first and second counts, granted a change of venue to Wabash county, where, upon trial by a jury, there was a general verdict of guilty, upon which the appellant was sentenced to the State prison for the period of two years and to pay a fine of $10.
Upon exceptions properly saved, and assigned as error, it is insisted that the court erred in overruling the motion to quash the first and second counts of the indictment, and in other specified particulars.
The first count of the indictment charges that Samuel Shaffer, at the county of Huntington and State of Indiana, on the 13th day of October, A. D. 1881, did feloniously, designedly and falsely pretend and represent to Samuel T. Morgan, than a certain order or token in writing, which he then and there had, purporting to be signed by one Robert Walburn, and dated about the 1st day of October, 1881, and directed to Samuel Shaffer, and authorizing him to sell the interest of Walburn in and to a lot of corn in said county, a more particular description of the order being impossible, because the
What the exact purpose of the pleader in framing this
If the intention was a sale by the appellant, by virtue of the power expressed in the order, the averments concerning the order, the representations made by the appellant, and the obtaining of the money thereby, may possibly show the commission of a crime by the appellant; but if a transfer, not of the property, but of the order or power to sell the property only was intended, it would seem to be quite doubtful if any offence is shown. The order given by Walburn to the appellant, as described in the indictment, it is clear, did not vest in the appellant the property in the corn, but simply gave him power to sell it for Walburn, that is to say, made the appellant Walb urn’s agent for that purpose. This agency he could not transfer to another. Morgan was bound, and is presumed to have known that such transfer could not be made, and, hence, had no right to put any reliance upon the representation of the appellant that it could be done, and when done would give him, Morgan, power to dispose of the property. So that, upon this view of the case, it was entirely immaterial whether the order was genuine or false, or whether the power conferred by it had already been fully exhausted.
The doctrine is familiar and fundamental, that the false pretence, token or writing must have been such as under the circumstances was calculated to mislead, and on which the injured party had a right to rely.
Assuming that the count charges a sale of the corn by the appellant to Morgan, is it good, and, if so, what offence does it charge ?
“Sec. 27. If any person, with intent to defraud another, shall designedly, by color of any false token or writing, or any false pretence, obtain the signature of any person to any written instrument, or obtain from any person any money, transfer, note, bond or receipt, or thing of value; such person shall, upon conviction thereof, be imprisoned in the State’s prison not less than two nor more than seven years, and fined not exceeding double the value of the property so obtained.”
The corresponding and only like provision found in the act of 1881, defining public offences, R. S. 1881, p. 413, is as follows:
“ Section 2204. Whoever, with intent to defraud another, designedly, by color of any false token or writing, obtains the signature of any person to any written instrument, or obtains from any person any money, transfer, bond, bill, receipt, promissory note, draft or check, or thing of value; and whoever sells, barters, or disposes of, or offers to sell, barter, or dispose of, any transfer, bond, bill, receipt, promissory note, draft or check, or any thing of value, knowing the signature of the maker, indorser, or guarantor thereof to have been obtained by any false pretence, — shall be imprisoned in the State prison not more than seven years nor less than two years, and fined in any sum not more than one thousand dollars nor less than ten dollars.”
While the latter enactment embraces important matter not contained in the former, and changes the penalty in respect to the amount of the fine which may be assessed, it is to be observed that in the first clause of the latter section the phrase “ or any false pretence ” is omitted; so that under this section there can be no prosecution for obtaining any money, goods, transfer, note, bill or the like, by false pretence, unless it consist of a false token or writing, nor at all, indeed, unless section 27 is in that respect unrepealed.
The important question thus suggested, we do not find it
It is claimed on behalf of the State, and denied by the appellant — assuming that the transaction charged was a sale of the corn — that, the power conferred by Walburn’s order having been already exhausted in the making of the alleged prior sale to another, the writing became invalid for further use, and, as used in accomplishing the sale to Morgan, was a false writing in the sense of section 2204, and consequently that the charge is well laid under that section.
To reach this conclusion, however, as it seems to us, involves the extension of the words false writing beyond their ordinary and natural meaning, so that the offence would consist not simply in the use of a false writing or token, but would also embrace an unwarranted or false use of writings or tokens conceded to be genuine.
There may perhaps be precedents or analogies in the common law for such a construction, but it is hardly admissible under a system in which crimes and their definitions are purely and exclusively statutory. Besides being contrary to the established rule for the construction of criminal statutes, it is easy to see that the construction contended for might lead to conclusions certainly not contemplated by the Legislature, whereby the criminality of an act would consist not in. the intentional use of a false document, but in the misconstruction and improper use of a writing of undisputed genuineness.
The writing in question, as described in the indictment, was not of a doubtful character, and, having already sold the corn by virtue of it, appellant, it is not to be presumed, could have supposed that it gave him power to sell again; and when he
But, as already indicated, we are unable to say that the count under consideration charges a sale of the corn by the appellant to Morgan, rather than a mere transfer of the order; and, on account of this uncertainty, if for no other reason, the motion to quash should have been sustained.
The evidence fails entirely to show a sale, and does show an assignment of the order, with an agreement or understanding that Morgan should sell the corn, repay himself the sum of f 5 loaned to the appellant, and, deducting the further sum of $5 which the appellant owed him, should account to the appellant for the remainder of the price of the corn.
Excepting that the evidence in the record does not show that the appellant had made a sale to another before the transaction with Morgan, it does tend to support the charge made in the second count in the indictment. The second count of the indictment details the same general facts as those set out in the first count, and charges, as the gist of the offence, that “ Shaffer falsely and feloniously represented that he could and would assign, and did then and there assign, said writing to the said Morgan, which would give him, the said Morgan, the-right to sell the said lot of corn and receive the proceeds of the same, repay himself,” etc., “and return the overplus, if any, to said Shaffer,” etc.
It is clear that Morgan had no right to believe ,such an absurdity. The misrepresentation consisted in the miscon
The judgment is reversed, with instructions to sustain the motion to quash each count of the indictment.