State v. Switzer

| Vt. | May 15, 1891

The opinion of the court was delivered by

TAFT, J.

The statute under which the respondent stands indicted imposes a penalty upon any one who designedly by false pretences, with intent to defraud, obtains from another person, money, or other property, or the signature to any instrument the false making of which would be punishable as forgery. It is in. sisted that each count is bad. There are fourteen in number. It is claimed that it should be alleged that the pretences were made feloniously. .The statute, K,. L. s. 4154, creates and defines the offense and an indictment in the words of the statute, properly setting forth the pretences and alleging their falsity, is sufficient; it need not be averred that the pretences were feloniously made. See State v. Daley, 41 Vt. 564" court="Vt." date_filed="1869-01-15" href="https://app.midpage.ai/document/state-v-daley-6578747?utm_source=webapp" opinion_id="6578747">41 Vt. 564. It is further-claimed that the pretences are not within the statute; that they relate to acts to be performed in the future ; statements of something to take place in the future, i. e. that six men named were to pa}^ the debts of the respondent at some subsequent time. We think in making this claim the counsel misconceive the purport of the allegations, which is, that the persons named, had in the past, entered into arrangement and ágreement to furnish money to pay the respondent’s debts; a representation of an existing fact which would bring about a future result. In falsely pretending that such an arrangement and agreement had already been made, the respondent, in that respect, brought himself directly within the statute. In re Greenough, 31 Vt. 279" court="Vt." date_filed="1858-11-15" href="https://app.midpage.ai/document/in-re-greenough-6576532?utm_source=webapp" opinion_id="6576532">31 Vt. 279. It is next claimed that the false pretences were not such as to mislead a man of ordinary prudence. This question cannot be raised upon demurrer, for if the rale is, as claimed by the respondent’s counsel, whether the pretences were calculated to deceive a person of ordinary prudence would be a question to be submitted to the jury under all the circumstances of the case.

An objection is made to certain counts that it is not alleged that tlie signatures, or money, therein named, were obtained designedly. The obtaining, to constitute an offense, must be designedly, and for want of such an allegation counts one, three, four, eight and twelve are insufficient.

It is sufficiently alleged that the signatures and money were obtained by means of false pretences. The acts of the respondent are properly described as “ false pretences,” and further describing them as “ inducements,” “ representations,” and “ sayings,” does not render the count defective. Describing the acts in the language of the statute is sufficient and the better way, but a further description of them as sayings, etc., is objectionable in nothing but a tautological sense. The instrument to which the signature was obtained being fully set forth verbatim, it was unnecessary to allege a conclusion of law, that the false making thereof was punishable as forgery.

An allegation of the delivery of the notes to Switzer is implied in the averment that he obtained the signatures. He could not have obtained them without a delivery of the noies to him, or to some one for him. All the synonyms of the words, to obtain, indicate this as the proper construction. A promissory note is property within the meaning of the words “or other property” as used in the statute.

It is said that in the eleventh count there is no allegation of an intent to defraud. This is an error, as it is set forth that the respondent falsely pretended, etc., with the intent then and there by means thereof to defraud the said Tibbetts.

' The claim that it is not alleged that no one of the six men named would furnish the money to pay Switzer’s debts, if not an absurdity savors strongly of it. The allegation was unnecessary, mere surplusage. The pretence alleged was that six men named had agreed to furnish the money to pay Switzer’s debts. This was properly negated. If all had not made the agreement, the pretence was false even if one of the six, or all of them, or Switzer himself, was ready to pay and did pay. The gravemen of the offense is in making the false pretence, etc., and obtaining thereby a person’s property or signature, and does not depend upon the ultimate loss of the victim, or whether, in fact, the latter sustains any pecuniary loss or not. In State v. Mills, 17 Me. 211" court="Me." date_filed="1840-06-15" href="https://app.midpage.ai/document/state-v-mills-4927141?utm_source=webapp" opinion_id="4927141">17 Me. 211, it was falsely pretended by the owner of a horse that he was the horse called the Charley, and by that pretence the owner procured an exchange of horses; it was held that it was a false pretence within the statute, although the horse falsely called the Charley was as good, and of as great value as the real Charley horse.

The third and fourth counts being held defective for the reasons before stated, other objections thereto are not considered.

"We hold that under this statute it need not be alleged that the respondent knew the pretences were false; if it is alleged that he designedly made them, with intent, etc., the indictment is sufficient.

Judgment reversed and cause remanded.