The principal facts involved in this case, as the evidence on the part of the prosecution tended to show, and as was evidently found by the trial court and the jury, stated briefly, are substantially as follows: Prior to 1886 A. C. Wallace died intestate, leaving as his heirs his widow, Phoebe J. Wallace, and two children, Mary J. Wallace and Phineas Wallace, and also leaving real and personal property. Afterward, and on July 15, 1886, the widow, Phoebe J. Wallace, died intestate, leaving as her heirs five children, Mary J. Wallace, Phineas Wallace, Jonathan W. Blossom, David Blossom and a daughter, the last three being children by a former husband; and she also left real and personal property. Mary J. Wallace had a claim against her mother’s estate of $800, which was contested, but which was allowed to her by the probate court on October 28, 1886. She also desired to have both the estates settled, and to have all her interest therein separated from the interests of the other heirs, by partition or otherwise; and for this and other reasons she employed the defendant, M. E. Matthews, who was an attorney at law, to assist her in her business. On November 14, 1887, Matthews wrote and sent to her a letter requesting her to call that day at his office, at 10 or 11 o’clock. She did not receive the letter in time to call at that time, but called the next day, when she was told by him to call on the 16th, and that he would then tell'her what he wanted. On the 16th she again called, and he stated to her that on the day on which he sent for her Jonathan W. Blossom, Phineas Wallace, and David Overmyer, another attorney at law, had been at his office, waiting for her, and proposed to buy her interest in the land belonging to her mother’s estate, except the Harrison street property; but that she did not come, and that they were compelled to go away; and that they had left a deed, perfect in form in every respect, except that the grantee’s name therein was left blank, for her to execute if she would accept their proposition; and that the blank was to be filled so as
“No.-. North Tojpeka, Kas., Nov. 29, 1887.
“ Citizens’ Bank, pay to M. E. Matthews or order, three hundred and eighty-two dollars ($382.00). J. Thomas.”
The defendant, Matthews, testified as a witness in the court below, and testified to a different state of facts from those above given, but evidently the court and jury did not believe him.
We shall decide this case upon the theory that the defendant, Matthews, in fact made the aforesaid statements to Mary J. Wallace which the state claims be made concerning the alleged statements made to him by her brother, half-brother, and Overmyer about purchasing her interest in the Wallace estate, and concerning their leaving the blank deed with him for her to execute so as to make it a deed to one of her half-brothers, but that all such statements and representations of Matthews were false and fraudulent; that at the time when he made the statements to Mary J. Wallace, and when the blank deed was signed and acknowledged by her, he intended to cheat and defraud'her, and intended to fill up the deed so as to make it a deed to himself for the property, and that by making the statements and procuring the deed and filling up the blank so as to make it a deed to himself, he himself at that time committed a crime. And we shall also decide the case upon the theory that when he represented and pretended to Jonathan Thomas that he had purchased the aforesaid interest of Mary J. Wallace in the Wallace estate and that he was then the owner thereof in fee, he well knew that his representations and pretensions were false and fraudulent, and that he thereby intended to cheat and defraud some person; but the questions then arise, whom did he intend to cheat and defraud, and who was in fact cheated and defrauded ?
The defendant was in fact tried only upon the second count of the information, as a nolle prosequi was entered as to the other count before he was called upon to introduce any evi
“The object of the statute is to punish-cheats, and it must be made to appear, not only that some person has been defrauded, but that the person making the representations intended to defraud the person by the representations made. . . . It is true that there need be but one false pretense, and though several are set out in the information, yet if any of them are proved which amount in law to a false pretense, the information is sustained. But it does not amount in law to a false pretense unless made with a fraudulent intent, and the person parting with the property is actually defrauded.
“ In all cases of this kind three things, at least, must concur: the intent to defraud, the false pretense made with the intent, and the fraud accomplished.” (See 62 Mich. 302, 303.)
“Now we repeat, that the only person injured and defrauded in any respect, if the facts were and are precisely as claimed by the state, was Mary J. Wallace. Whether an information could be framed in proper and apt terms to charge false and fraudulent representations made to Thomas for the purpose of securing a loan of money from him, with intent to cheat and defraud Mary J. Wallace, is a question we need not discuss here. But it is plain beyond possibility of doubt, that upon the facts as proven by the state, defendant never had any ‘intent to cheat and defraud Louisa.Havens,’ nor any intent‘to cheat and defraud Jonathan Thomas’; because as to them or to either of them, the note and mortgage executed by him were and are perfect security for the money obtained, and he knew it. The record does not disclose a single word*607 of testimony showing an ‘intent on the part of the defendant to cheat or defraud Jonathan Thomas’ — no proof that Thomas was in any respect cheated, defrauded, or injured — no evidence showing or tending to show that Thomas could in anywise be cheated or defrauded out of money loaned by him to defendant or paid to defendant upon the order which he received from Thomas on account of that loan.”
Therefore it is urged by the defendant’s counsel that he cannot legally be found guilty of any criminal offense in this case.
There are many other questions discussed in the briefs of counsel, but with the views which we entertain and which we have already expressed, we do not think that further comment is necessary. In our opinion the defendant was erroneously convicted and sentenced, and therefore the judgment of the court below will be reversed.