Commonwealth v. Wallace

• Decision Date: 01 November 1886
• Docket Number: 235
• Citation: 6 A. 685,114 Pa. 405
• Parties: Commonwealth v. Wallace
• Court: Pennsylvania Supreme Court

6 A. 685

114 Pa. 405

Commonwealth v. Wallace

No. 235

Supreme Court of Pennsylvania

November 1, 1886

October 15, 1886

CERTIORARI to the Court of Quarter Sessions of the Peace of Lawrence county: Of October Term 1886, No. 235.

This was an indictment for obtaining money by false pretence found by the grand jury of said county against Daniel H. Wallace.

The following is the indictment.

The Grand Inquest of the Commonwealth of Pennsylvania, inquiring in and for the body of the county of Lawrence, upon their oaths and solemn affirmations, respectively, do present, that Daniel H. Wallace, yeoman, late of the county of Lawrence aforesaid, heretofore, to wit: On the twenty-first day of June, in the year of our Lord one thousand eight hundred and eighty-four, in the county of Lawrence aforesaid, and within the jurisdiction of this court, with force and arms, &c devising and intending to cheat and defraud one, Barbara Genkinger, of her money, goods, chattels and property, then and there, being an officer to wit: President of the Peoples' Savings Bank of the city of New Castle, Lawrence county aforesaid, unlawfully, knowingly, wilfully and designedly did then and there falsely pretend and represent to said Barbara Genkinger that the People's Savings Bank aforesaid, was perfectly solvent, and that none of the sums of money that would be deposited in said People's Savings Bank after the twenty-first day of June, one thousand eight hundred and eighty-four would be used to pay any of the debts of said bank incurred prior to said twenty-first day of June whereas, in truth and in fact, the said People's Savings Bank, at the time said statements and representations were made, was not solvent and able to pay all its liabilities and said sums of money so deposited in said bank were not used as represented by said Daniel H. Wallace, which said pretence and pretences the said Daniel H. Wallace then and there well knew to be false, by color and means of which said false pretense and pretenses, he the said Daniel H. Wallace did then and there unlawfully, knowingly and designedly obtain from the said Barbara Genkinger a large sum of money to wit: Two thousand dollars, being then and there the property of the said Barbara Genkinger, with intent to cheat and defraud the said Barbara Genkinger to the great injury and damage of her, the said Barbara Genkinger, two thousand dollars, contrary to the form of the Act of the General Assembly in such case made and provided and against the peace and dignity of the Commonwealth of Pennsylvania.

And the inquest aforesaid upon their oaths and solemn affirmations aforesaid do further present that the said Daniel H. Wallace afterwards, to wit: On the day and year aforesaid, at the county of Lawrence aforesaid and within the jurisdiction of this court, with force and arms &c., being an officer to wit: President of the People's Savings Bank, a bank located in the city of New Castle, Lawrence county aforesaid, devising and intending to cheat and defraud one, Barbara Genkinger, of her money, goods, chattels and property, unlawfully, knowingly, wilfully and designedly, then and there did falsely pretend and represent to said Barbara Genkinger, that the assets of said People's Savings Bank were largely in excess of its debts and liabilities, and that said bank was perfectly solvent and able to pay all its debts and liabilities, whereas, in truth and in fact the assets at the time of making the representations aforesaid, were not in excess of its debts and liabilities, and said People's Savings Bank was not solvent and able to pay all its debts and liabilities, and said money deposited after said twenty-first day of June was used to pay debts incurred prior to said twenty-first day of June, and used by said Daniel H. Wallace for his own purposes, which said pretence and pretences the said Daniel H. Wallace then and there well knew to be false, by color and means of which said false pretence and pretences, he the said Daniel H. Wallace did then and there unlawfully, knowingly and designedly obtain from the said Barbara Genkinger a large sum of money, to wit: Two thousand dollars, being then and there the property of the said Barbara Genkinger with intent to cheat and defraud the said Barbara Genkinger to the great injury of her, the said Barbara Genkinger, two thousand dollars, contrary to the form of the Act of the General Assembly in such case made and provided and against the peace and dignity of the Commonwealth of Pennsylvania.

The defendant moved to quash the indictment for the following reasons:

1. The representations or pretences, alleged to have been made by defendant are insufficient to sustain an indictment for procuring money by false pretences.

2. The charge that defendant represented that the bank was insolvent is too general and too uncertain and insufficient. And so is the representation of excess of assets over liabilities. And the charge that defendant represented that none of the money gotten or deposited would be applied on debts previously incurred is not a statement of fact but a promise of future conduct, and therefore insufficient.

3. The facts of solvency of the bank, and of excess of its assets over its liabilities are not sufficiently negatived.

4. The indictment is bad because it charges that the money was obtained from the prosecutor by both a pretence and a promise, and does not charge that it was induced by a false pretence. So far as can be known by the court, the promise alone may have induced the prosecutor to have parted with the money.

The court, McMICHAEL, J., sustained the motion and quashed the indictment.

To this judgment of the court the Commonwealth excepted which was noted and a bill sealed.

The Commonwealth thereupon took this writ assigning for error the action of the court in quashing the indictment.

Judgment reversed, and procedendo awarded. Record remitted.

B. A. Winternitz (S. L. McCracken, District Attorney, Charles McCandless and Treadwell & Jameson, with him), for plaintiff in error. -- The indictment is sufficient under the Act of March 31st, 1860, § 111, P.L., 140.

The indictment is drawn in accordance with the rulings of the Supreme Court and in the language of the statute: Commonwealth v. Adley, 1 Pearson, 62; Commonwealth v. McCrosius, 2 Clark, 6; Commonwealth v. Hutchinson, 1 Clark, 302.

This precedent is adopted by Chitty (Criminal Law, Vol. 3, 768,) except that his precedent charges several as being concerned in the cheat with the defendant in falsely representing himself as a wealthy merchant. The false pretence need not be in words: Com. v. Daniels, 2 Pars., 332.

In a New Jersey case, where a man was induced to part with his claim against a third person, his debtor, at a sacrifice, the pretence used was as stated in the indictment, that this third person was insolvent, and largely indebted to divers persons, and was possessed only of small means, and was unable to pay the debt in full; all of which was false, known to be so by the person making the representation, and it was contended on his behalf, that whether this third person was insolvent or not, was largely indebted or not, and was able to pay in full or not, were severally matters of opinion; but the majority of the court held that they were matters of fact, in distinction from opinion, therefore that the indictment could be sustained: The State v. Tomlin, 5 Dutcher, 13, cited in 2 Bishop Crim. Law, § 433, Ed. 1868; People v. Haynes, 14 Wendell, 546, cited in 28 Am. Decisions, is to the same point; Com. v. Burdick, 2 Bar., 163.

In England under a similar statute to ours one C. was convicted of obtaining potatoes by falsely pretending that he was in a position to do a good trade in potatoes, and that he was able to pay for large quantities of potatoes, as, and when the same might be delivered to him: Reg. v. Cooper, 25 W.R., 696; C.C.R., 3 Jacobs; Fisher's Dig., 3193.

The fact that a promise of future conduct is joined with the assertion of the existence of a fact does not vitiate the indictment, and is none the less a false pretence: Com. v. Hutchison, 1 Clark, 309; 2 Bishop Crim. Law, § 404, ed. 1868; State v. Dowe, 27 Iowa 273, cited in 1st Am. Rep., 271; Com. v. Keeper county prison, 15 W.N.C., 282. The motive which induced the credit is for the jury: Com. v. Daniels, 2 Pars., 332.

S. W. Dana (Samuel Griffith, with him), for defendant in error. -- Moved to quash the writ. This motion was argued with the main question.

I. (1.) The Act of May 19th, 1874, P.L., 219, does not a bill of exceptions or a writ of error or a certiorari in this case: Pearson's Practice in Supreme Court, § 122; Commonwealth v. Moore, 3 Out., 570.

(2.) The writ should be quashed because it was not specially allowed as required by the statute.

(3.) A writ of error is the proper writ and not the writ of certiorari.

II. Should the court hold the certiorari sufficient to bring up the record, then there was no error in quashing the indictment.

In the outset, the alleged false pretence, that none of the money deposited after June 21st should be applied to debts previously incurred, may be dismissed, as not a statement of an existing fact, but a promise of future conduct. Such a pretence is not within the statute against false pretences, as was held in Com. v. Hutchison, 1 Pa. Law J. Rep., 302, and Com. v. Moore, 99 Pa. St. R., 570, and many other cases.

The only false pretence then charged, in either count of the indictment, was, that the People's Savings Bank was perfectly solvent and had assets in excess of its liabilities. It is respectfully urged that this is not the "assertion of the existence of some fact, calculated to impose upon a man of common and ordinary caution." Solvency...