154 Ind. 131 | Ind. | 1900
Indictment for obtaining ’property under false pretenses. Motion to quash the indictment sustained, and the State appeals.
Omitting formal parts, the indictment, in substance, charges: That the defendant, Harry N. Styner, on the 15th day of March, 1899, at Tippecanoe county, did, then and there, feloniously and knowingly, falsely pretend and represent to Alice Lightle, with intent to cheat and defraud her (Lightle), and for the purpose of obtaining from her the property hereinafter named, that he, Styner, had a bank check for $1,000, executed to him by his father, which he intended to deposit in the Eirst National Bank of Lafayette in the 'said Lightle’s name; and in support of which representations Styner presented to Lightle, for her inspection, what purported to be a-bank check for $1,000, executed by his father; and Styner did, then and there, further feloniously, etc., represent and pretend to her, the said Alice Lightle, that he intended to marry her, and that he had provided a house for them to live in as husband and -wife; and did further, then and there, feloniously, etc., represent and pretend to her that a certain unsigned bank check, bearing an uncanceled revenue stamp, which he then and there had and presented to her for her examination, was a check for $125 on the Eirst National Bank of Lafayette; while, in truth, it was an unsigned check for $725, a copy of which check is set out; that she, the said Lightle, relying upon said representations, and believing them to be true, and having
The points made against the indictment are (1) that the facts averred constitute larceny and not false pretense; (2) the signed check was the property obtained, and it can not be separated; (3) the title to the property wras not parted with by the delivery averred; (4) a gift can not be the subject of a false pretense; (5) the alleged false pretenses were not the operative cause for parting with the check.
The first three points are so closely blended that they -will be considered together. As to the first, it does not follow that, because the facts averred exhibit a case of larceny, they do not also show a sufficient charge for obtaining property by false pretenses. There are many acts that offend against more than one of our criminal statutes. Larceny and robbery, assault and battery, assault and battery with intent to kill, assault and battery and an affray, are different
The question, therefore, is: Do the facts pleaded constitute a sufficient charge of obtaining the property of the prosecuting witness by false pretenses? The principal distinction between the tortious taking of the property of another by false pretenses, and by such active fraud as constitutes larceny, is, that in the former the owner voluntarily and intentionally parts with the possession and .title of his property, being induced thereto by the false pretenses and deception of the defendant, while in the latter he ignorantly and unintentionally parts with the possession, but not with the title, it being essential to the transfer of title that the act be accompanied with knowledge and intention.
It will be observed that the indictment charges, in effect, that the false representations and pretenses were made for the purpose of inducing the prosecuting witness to execute and deliver a certain bank check to the defendant, — a check represented by him, and believed by her, to be for $125, but which was in fact for $725. Erom this it is argued by the defendant’s counsel that, since Lightle executed and parted with but a single check, and that for $725 ($600 more than she intended), there was no intentional delivery of the particular check, no parting with the title thereto, and hence the act was larceny, and not false pretense; the contention’ being that there can be no division in the amount of the check to characterize the offense.
The charge is that Lightle believed the check was for $125 only, and that she intended, by its execution and delivery
The indictment is founded upon §2352 Burns 1894, §2204 R. S. 1881 and Horner 1897, which provides that “Whoever, with intent to defraud another, designedly, * * * by any false pretense, obtains the signature of any person to any written instrument, or obtains from any person any money, or the transfer of any bond, * * * draft, or check or thing of value, * * * shall be imprisoned,” etc.
It is charged that the defendant, feloniously and knowingly, falsely represented to Lightle that he had a bank check his father had executed to him for $1,000, which he intended to deposit in bank in her name; that he intended to marry her, and had procured a house for them to live in as husband and wife; that the check he requested her to sign was for $125; that she believed these representations to be true, and was induced thereby to sign and deliver the check to the defendant, intending thereby to give him $125. It is also averred that each of these representations was false; that he had no check for $1,000, or any other sum, executed to him by his father; that he did not intend to marry the prosecuting witness, and had not provided a house for
Here we have averments that false representations concerning existing facts were knowingly and designedly made by the defendant to procure from the prosecuting witness the execution and delivery to him of a certain writing, the property of the prosecuting witness; that the effect of the false representations was to induce her to execute and deliver the writing; and this brings the case clearly within §2352 (§2204), supra.
As to the fourth point, it is claimed that a gift is not the subject of a false pretense. Some early cases, probably controlled by statute, hold that the statute against false pretenses operates only for the protection of trade and credit, and not against begging and benevolence. But our statute is clear, and admits of no exception, and we perceive no reason why it is less a crime to deceive another into yielding money, or other property, as a gift, than in yielding it under the pretense of trade; and so it has been held by this court. Strong v. State, 86 Ind. 208, 44 Am. Rep. 292. See also State v. Matthews, 91 N. C. 635; Commonwealth v. Whitcomb, 107 Mass. 486.
In the last case, under the pretense of being a clergyman in distress, the defendant obtained money relief from a minister; concerning which the court say: “But it is obvious that the ease comes within the words of the statute. It comes also within the reason of the statute. There is as much reason for protecting persons who part with their money from motives of benevolence, as those who part with it from motives of self-interest.”
The charge that the false pretenses concerning the $1,000 check, the defendant’s intention to marry the prosecuting witness, the already provided house for them to live in as husband and wife, and the amount of the check, induced her to sign and deliver the check sufficiently shows the
The indictment is sufficient. Judgment reversed, and cause remanded with instructions to overrule the defendant’s motion to quash the indictment.