Enders v. People

• Decision Date: 26 April 1870
• Court: Michigan Supreme Court
• Parties: George W. Enders v. The People

20 Mich. 233

George W. Enders v. The People

Supreme Court of Michigan

April 26, 1870

Heard April 6, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Oakland Circuit.

Enders was charged on the information of the Prosecuting Attorney for the County of Oakland, that he, said Enders, "on the 10th day of February, 1866, at the town of Groveland, in the County of Oakland, unlawfully, knowingly and designedly did falsely and feloniously pretend to one Fredrick Brandt, that certain land which he, the said Enders, was about to sell to the said Brandt, contained in amount 120 acres, being one 80 acre lot and one 40 acre lot; that there was not upon said land more than five acres of lake or water; that none of the land of either of the said 80 or 40 acre lots had been sold off by the said Enders; and that said land was free from all incumbrances, except a mortgage of about one hundred and fifty dollars; by means of which said false pretenses, the said George W. Enders did then and there unlawfully, designedly and feloniously obtain of and from the said Frederick Brandt the sum of four hundred and fifty dollars in money, of the value of $ 450, and also a certain mortgage of the value of $ 450 with interest, then and there to cheat and defraud him, the said Brandt, of the same: Whereas in truth and in fact there was on said land more than five acres of lake or water, and was on said land 20 acres of lake or water; and the said Enders had sold off from said land four acres; and said land was encumbered with more than $ 150; all of which the said Enders then and there well knew, to the great damage and deception of the said Frederick Brandt," etc.

After trial and conviction, a motion was made in arrest of judgment, for certain defects alleged to be contained in the information; which motion was overruled by the Court. The cause now comes into this Court by writ of error, and errors are assigned upon the admissibility of testimony and the charge of the Court; and also that the Court erred in refusing to arrest judgment in said cause for the various defects appearing in the information:--1st. That the information does not allege that it was by reason of the false pretenses that the grantor paid the defendant the money and property therein mentioned. 2d. That the information does not allege that any bargain was consummated between Brandt and Enders, nor that any conveyance was made; or that the lands were the consideration for the same. 3d. That the information does not contain any cause of action against the defendant.

Judgment reversed.

A. C. Baldwin, for the plaintiff in error.

I. The information, to sustain a conviction, must aver that the party defrauded, parted with his property by reason of such representations. It was undoubtedly attempted to make this averment, but an examination of the information discloses the fact that Enders was about to sell, and there it leaves the subject. From the paper nothing can be inferred. What matters it to Brandt, so far as appears from the record whether the land had five or forty acres of water on it, or whether part, or the whole, had been sold off.--State of Wisconsin v. Green, 7 Wis. 676; Wisconsin Statutes ed. of 1858, p. 941, § 38; 2 Comp. Laws, 1517, § 5777; State v. Philbrick, 31 Me. 401; People v. Gates, 13 Wend. 317; Com. v. Strain, 10 Met. 523; Com. v. Nason, 9 Gray 126; Com. v. Lannan, 1 Allen 590; State v. Bacon, 7 Vt. 219; Com. v. Goddard, 4 Allen 312.

II. The information does not state that any bargain was consummated between Brandt and Enders, nor that any conveyance was made, or that the lands were the consideration of the same. These are all material averments. It matters not what conversatian was had between Enders and other persons, if no trade was consummated. No matter what he stated he was worth, or how fair the condition of his land, if the information does not show that the trade actually made was the result of such conversation. The testimony discloses that Enders sold the land to Brandt, but the verdict cannot be sustained upon the testimony, unless there be a valid information. I cite the same authorities upon this point as the preceding, as well as the following:--Rex v. Mason, 2 T. R., 581; Rex v. Plestow, 1 Camp. 499; People v. Stone, 9 Wend. 191; Burrow v. State, 7 Eng. (Ark.,) 65.

The statutes in relation to false pretenses are nearly alike in the various states, and are copied substantially from the English statutes.

Dwight May, Attorney General, and L. T. Durand, for defendant in error.

1. The information is in the language of the statute. It charges the facts and circumstances constituting the offense in substantial compliance with the law defining it. It specifies the ingredients, and alleges the offense in precise, affirmative terms. The "scienter" is alleged, together with "obtaining money by means of false pretenses," which are fully and properly set out, and as fully and properly negatived.--1 Chitty Cr. Law, 286-9; 2 Bish. Cr. Proc., 131-2-5-8; Skiff v. People, 2 Park. Cr. Rep., 139; Com. v. Call, 21 Pick. 520; State v. Midleton, 11 Iowa 246; Reddon v. State, 4 Greene, (Iowa,) 137-9; Fonda v. State, Ibid. 500; Session Laws, 1867, 219; Comp. Laws, § 6059.

The information alleges that the defendant falsely pretended that certain lands which he was about to sell, contained, &c., and were free from lake or water over and above a certain quantity, &c. By means of which said false pretenses, he obtained, &c. But the defendant insists upon motion in arrest: 1st. That the information should have alleged a purchase on the part of Brandt, by reason of said false pretenses; and 2d. That the information is defective in that it does not charge a sale. These two propositions may be considered together.

II. The facts and circumstances upon which the offense rests are sufficiently charged.

(a) This offense is created by statute, and the ingredients thereof, as specified by statute--its very elements--in which the material facts and circumstances composing it, are compressed, are charged. The ingredients of the offense as defined by statute, expanded and particularized, constitute the material facts and circumstances in the case.--Stark Cr. Pl. 74-6-7--8--105; 1 Ch. Cr. Law, 282--6-7--8; People v. Haynes, 14 Wend. 567: Com. v. Call, 21 Pick. 520.

(b) These then being laid, the manner in which the false pretenses were effectual in obtaining the money and mortgage was not a competent part of the offense, but only an incident to be developed on proof; and hence we submit a mere circumstance material as an allegation only so far as it is descriptive and a foundation for the introduction of proof. The obtaining money, and not the purchase or sale, under false pretenses, constitutes the ingredients of the offense to be affirmatively alleged.--Laws of 1867, 219; 1 Ch. Cr. Law, 286-9; 2 Bish. Cr. Proc., 131-2-5-8; Rex v. Airey, 2 East, 30; Skiff v. People, 2 Park. Cr. Rep., 139-45; Com. v. Call, 21 Pick. 520; Com. v. Tuck, 20 Ib. 362; People v. Haynes, 14 Wend. 567; People v. Johnson, 12 John. 291-3; Picard v. Stetson, 11 Mich. 75.--The information uses the language employed by statute.

III. The materiality of the allegation of sale, depending then, not upon its being a component part of the crime, but upon its descriptive qualities merely, and foundation for proof as specified in Com. v. Strain, 10 Met. 521, it follows:

1st. That if it be substantially laid it may be proved; and 2nd. If it point the defendant fully to the facts he is to meet, it is sufficient.--Train & Heard Prec., 88-9; People v. Stone, 9 Wend. 191; Com. v. Hulbert, 12 Met. 446-8; Horan v. State, 24 Tex. 161; People v. Saviers, 14 Cal. 29; Com. v. Hessenkamp, 17 Iowa 25-6; State v. Baldy, Ib., 39; Rex v. Airey, 2 East, 30.

(a) The object of certainty in the allegation of facts and circumstances is to apprise the respondent of what he will be called upon to answer. The cases which hold that the means through which the pretenses effected the crime, whether by sale or exchange, should appear from the information, rests upon this principle. The case of Com. v. Strain, the leading case upon this point, holds this doctrine. The cases in Me. and Indiana contain the same view; vide--Com. v. Strain, 10 Met. 521; State v. Philbrick, 31 Me. 401; Johnson v. State, 11 Ind. 481-2; State v. Orvis, 13 Ib. 569-71; Com. v. Goddard, 4 Allen 312; vide also State v. Green, 7 Wis. 676-84; People v. Gates, 13 Wend. 311-22; Glachan v. Com., 3 Met. Ky., 232.

(b) The crime is not a felony, but only a misdemeanor.--People v. Richards, 1 Mich. 221-2.--We submit, therefore, that the information is sufficiently certain. The allegation of sale is substantially made, so that the mind of the defendant could have been drawn thereby to no other conclusion.--Skiff v. People, 2 Park Cr. Rep., 139-45-6-7; Evans v. People, 12 Mich. 27-33; Lambert v. People, 9 Cowen 609-10-11; 1 Bish. Cr. Proc., 282, 276, Stark. Cr. Pl., 76-7-8; Dedieu v. People, 22 N. Y., 180-1.

Under the decision of Skiff v. People, it was necessary only to allege the offense in general terms, as given by statute, leaving the sale to be shown by proof.--1 Bish., Cr. Proc., 276-82; Stark Cr. Pl., 105; Train & Heard's Prec., 90-169, 133-4, 107; Skiff v. People, 2 Park. Cr. Rep., 139-45; Hamilton v. Regina, 9 Queen's Bench Rep., 271; King v. Airey, 2 East, 30; 2 Cox C. C., 11; 5 Ib., Appendix, 2; Queen v. Kenrick, 5 Ad. and Ell. N. S., 49; Com. v. Hulbert, 12 Met. 446-8; Com. v. Drew, 19 Pick. 179; People v. Crissie, 4 Denio 525; People v. Clark, 10 Mich. 314; Reg. v. Ball, C. & M., 249; Young v. King, 3 T. R., 98.

(c) The pretenses themselves--a component part of the offense--need not be directly and minutely...