Commonwealth v. Moore
| Decision Date | 27 February 1882 |
| Citation | 99 Pa. 570 |
| Parties | Commonwealth <I>versus</I> Moore. |
| Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J. MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT, and GREEN, JJ.
CERTIORARI to the Court of Quarter Sessions of Delaware county: Of January Term 1882, No. 71.
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V. Gilpin Robinson, district-attorney, for the commonwealth.
We rely on Commonwealth v. Capp, 12 Wright 53. See also Commonwealth v. Bartilson, 5 W. N. C. 177, 181.
That objection would be unanswerable if the prisoner had been acquitted by the jury; but he was convicted, and the court, on matter of law, arrested the judgment. We ask this court to review the action of the court below subsequent to the conviction. A reversal of such action will not put the defendant to a new trial, or put him again in jeopardy.
The statute under which the indictment is drawn says "any false pretence," and the court will not be astute, in construing the Act, to hold that the gross moral crime, by which the defendant cheated the prosecutor out of a large sum of money, is no offence under the laws of Pennsylvania; Commonwealth v. Burdick, 2 Barr. 164; Russell on Crimes (4th ed.), 200; Commonwealth v. Yerkes, 29 Leg. Intell. 60.
E. H. Hall, for defendant in error.—The false pretence charged in the indictment was not of any existing fact, but a mere promise for future conduct, which is not within the terms or intendment of the Act defining the offence. Nor can the defendant be held for larceny under the second count. If there was anything stolen, it was merely the credit of the prosecutor, which is not the subject of larceny. The criminal process of the court cannot be thus used to enforce the collection of a debt.
The only question presented by this record is, whether the indictment sets forth an indictable offence. It contains two counts, in each of which the defendant below is charged with cheating by false pretences. The particular act alleged was the procuring of the prosecutor's endorsement of the defendant's promissory note, and the false pretence charged consisted in his representing to the prosecutor that he would use the note so endorsed to take up and cancel another note of the same amount then about maturing, and upon which the prosecutor was liable as endorser. In other words the note was given in renewal of another note of like amount, and the indictment charges that the defendant instead of using it for this purpose, as he promised to do, procured it to be discounted, and used a portion of the proceeds for other purposes.
A false pretence, to be within the statute, must be the assertion of an existing fact, not a promise to perform some act in the future. The man who asserts that he is the owner of a house, states a fact, and one that is calculated to give him a credit. But a mere failure to keep a promise, is another and very different affair. That occurs whenever a man fails to pay his note. It is true Chief Justice GIBSON doubted in Commonwealth v. Burdick, 2 Barr, at page 164, whether every naked lie by which a credit has been gained is not a false pretence within the statute. This doubt has run its course, and has long since ceased to disturb the criminal law of the state. There was nothing in Commonwealth v. Burdick, to suggest such doubt, as the defendant had wilfully misrepresented that he had a capital of $8,000 in right of his wife, while, in all the cases cited therein, there was a misrepresentation as to existing facts, by means whereof a credit was obtained. The decisions upon this subject are uniform, and it would be an affectation of learning to cite the cases. Many of them may be found in the foot-note to Purdon.
In the case in hand, there was no assertion of an existing fact. Nor was there anything done by which even a credit was given. The credit had been obtained when the original note was endorsed; the present note was endorsed in lieu of and for the purpose of taking up the original; the failure to use it for such...
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