Harris v. State
| Citation | 181 N.E. 104,125 Ohio St. 257 |
| Decision Date | 04 May 1932 |
| Docket Number | 23372 |
| Parties | Harris v. The State Of Ohio. |
| Court | United States State Supreme Court of Ohio |
Criminal law - Obtaining money by false pretense - Section 19104 General Code - False pretense relating to future fact or event, insufficient - Indictment - Averment negativing truth of representation, necessary - False pretense that accused would pay fine and costs, insufficient - Criminal code liberal provisions applied, but accused's constitutional right upheld - Section 18487-4, General Code.
1. A false pretense, which relates not to an existing but to a future fact or event, is not such a pretense as to lay the foundation for a criminal prosecution under Section 13104 General Code.
2. An indictment which avers that money or property was obtained by a false pretense or representation, but which contains no averment negativing the truth of such representa- tion, is insufficient in law to constitute such offense. (Dillingham v. State, 5 Ohio St. 280; Redmond v State, 35 Ohio St. 81, followed and approved.)
3. An indictment, specifically charging the accused with falsely pretending that he "would pay the fine and costs taxed against Clyde Allen," is insufficient unless it denies or negatives the pretended fact that such fine and costs were in existence.
4. While the court recognizes and will apply the liberal provisions of the criminal Code (Sections 13437-4 et seq.) it will uphold the constitutional right of an accused to he advised in the indictment of the nature and cause of the accusation he is expected to meet. And if a vital and material element identifying or characterizing the offense be omitted from such indictment, the indictment is insufficient to charge an offense and cannot be cured by the court.
Caleb S. Harris was indicted, tried, convicted and sentenced for the offense of obtaining money under false pretenses. The indictment was as follows: That Caleb S. Harris, at the county of Jefferson, Ohio, "unlawfully and knowingly did falsely pretend, with intent to defraud to one, Anthony Meola, that he, Caleb S. Harris, would pay the fine and costs taxed against Clyde Allen in a certain liquor case, and that he, Caleb S. Harris, would thereby settle said case against Clyde Allen, by which said false pretenses the said Caleb S Harris, then and there unlawfully did obtain from the said Anthony Meola money of the value of One Hundred Twenty-four and 60/100 ($124.60) Dollars, of the personal property of the said Anthony Meola, with intent then and there to cheat and defraud the said Anthony Meola out of the same, whereas, in truth and in fact the said Caleb S. Harris did not pay the fine and costs alleged to have been taxed against one, Clyde Allen, in a certain liquor case, and thereby settle said case; and the said Caleb S. Harris, at the time he so falsely pretended, as aforesaid, well knew the said false pretenses to be false; that the said false pretenses were false in fact and induced the said Anthony Meola to part with his said property; contrary to the statute in such case made and provided, and against the peace and dignity of the State of Ohio."
In the course of the trial, at the end of the state's case, the defendant demurred to the evidence and moved for a directed verdict, and renewed that motion at the close of the entire testimony. These motions were overruled by the trial court. Within three days after the verdict the defendant moved the court to arrest judgment upon the ground that the facts stated in the indictment did not constitute an offense. This motion the court overruled.
The judgment of the trial court was affirmed by the Court of Appeals. Upon Harris' motion the case was certified to this court for review.
Mr. Hugo Chestosky and Mr. E. De Witt Erskine, for plaintiff in error.
Mr. Jesse K. George, prosecuting attorney, for defendant in error.
This was an indictment for obtaining money under false pretenses, an offense penalized by Section 13104, General Code. The false pretense charged therein is that the defendant "would pay the fine and costs taxed against Clyde Allen in a certain liquor case," and that defendant obtained certain money therefor from the prosecuting witness. It has been early established by this court that the falsity of the pretense must relate to a past or an existing fact. Dillingham v. State, 5 Ohio St. 280.
From this indictment it appears that the representation made was that the accused would pay a fine and costs to be taxed in some amount against Allen, and if it be construed as a pretense relating to a future event the indictment would fall within the condemna- tion of the Dillingham case, supra. However were we to construe the indictment liberally, under the provisions of the new Criminal Code, and assume that it does charge that the pretense related to an existing fine and costs taxed against Allen, the indictment is faulty in two respects. It is indefinite in that it does not state what the fine and costs were which he falsely represented to the prosecuting witness; and, if we assume that the accused falsely pretended that there were an existing fine and costs taxed, the indictment contains no averment negativing the pretended representation that such fine and costs existed. The only negation found in the indictment is that "in truth and in fact the said caleb S. Harris did not pay the fine and costs alleged to have been taxed" against Allen. The indictment should have averred in substance that the accused pretended to the prosecuting witness that there were a fine and costs assessed against Allen when the representation was made, and upon which he obtained the money to pay them; and then it should have negatived the fact that there were such fine and costs. This was not done.
The following statement of the law in that respect is contained in 25 Corpus Juris, 626, Section 60, and is supported by copious notes: "The indictment must negative by special averment the truth of the pretense alleged." The following cases, all relating to obtaining money by false pretense, support the principle announced in the text: Dillingham v. State, supra; Redmond v. State, 35 Ohio St. 81; State v. Trisler, 49 Ohio St. 583, 31 N.E. , 881.
The only false pretense contained in the indictment is that the accused falsely pretended he would pay the fine and costs taxed against Allen, whereas in truth and in fact he did not pay them. There may have been a breach of confidence or trust in the accused's failure to carry out his promise to pay the fine and costs in the future; but this particular crime cannot be based upon the failure to keep that promise; it must be based upon the false representation of an existing fact coupled with a promise. "A promise is not a pretense." 2 Bishop's Criminal Law (9th Ed.), Section 419.
The following is the syllabus in the case of Colly v. State, 55 Ala. 85: "A `false pretense,' is a false representation as to some existing or past fact; a mere promise to be performed in future, though not meant to be kept when made, is not a false pretense."
The following is found in the syllabus in ...
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