Lefler v. State
Decision Date | 28 June 1899 |
Docket Number | 18,877 |
Citation | 54 N.E. 439,153 Ind. 82 |
Parties | Lefler v. The State |
Court | Indiana Supreme Court |
From the Fayette Circuit Court.
Affirmed.
R. N Elliott and Ira T. Trusler, for appellant.
W. L Taylor, Attorney-General, Merrill Moores and George L. Gray for State.
Appellant was indicted, tried, and convicted of the offense of obtaining money under false pretenses. The only error assigned is that the court erred in overruling the motion to quash the indictment. It is insisted by appellant that the false pretenses alleged were not such as a person of ordinary caution and prudence would credit, and for that reason the indictment was insufficient.
It is alleged that appellant "designedly, knowingly, falsely, and feloniously pretended and represented to the said Annie Kidwell that he, said John Lefler, was then and there a single man; that he was divorced from his wife; that there was then and there a judgment for alimony against him in the Rush Circuit Court of Rush county, Indiana; that there was then and there an unpaid balance of $ 15 on said judgment against him; that he wanted and needed said $ 15 from said Annie Kidwell with which to pay off and liquidate said claim and judgment standing against him as aforesaid."
The part of the statute upon which the indictment is based reads as follows: "Whoever, with intent to defraud another, designedly * * * by any false pretense obtains from any person any money, or the transfer of any bond, bill, receipt, promissory note, draft or check, or thing of value * * * shall be imprisoned," etc. Acts 1883, p. 126, § 2352 Burns 1894, § 2204 Horner 1897.
It was said in some of the earlier cases in this State that to support any indictment the false representations must be of such existing facts as would deceive a person of ordinary intelligence and prudence. State v. Magee, 11 Ind. 154; Leobold v. State, 33 Ind. 484; Bonnell v. State, 64 Ind. 498. But the later cases of Shaffer v. State, 100 Ind. 365, Wagoner v. State, 90 Ind. 504, and Miller v. State, 79 Ind. 198, hold that, whether or not the false pretenses are such as are calculated to deceive a person of ordinary caution and prudence, is not a question of law for the court, but a question of fact for the jury under all the circumstances. In State v. Burnett, 119 Ind. 392, 21 N.E. 972, however, it was again held, on a motion to quash the indictment, that the false representations must be of such a character that a man of common understanding is justified in relying upon them.
In England, and many of the states, the rule is that any pretense which deceives the person defrauded is sufficient to sustain an indictment, although it would not have deceived a person of ordinary prudence. 2 Russell on Crimes, (9 Am. ed.) 619-700; Roscoe's Crim. Ev. (7 Am. ed.) 487, 488; 2 Bishop's Crim. Law, §§ 433-436; Reg. v. Woolley, 1 Den. C. C. 559, 4 Cox C. C. 193, 3 C. & K. 98, 2 East P. C. 8, pp. 827-831; Reg. v. Jessop, Dears & B. 442, 7 Cox C. C. 399; Reg. v. Giles, L. & C. 502, 10 Cox C. C. 44; Johnson v. State, 36 Ark. 242; State v. Fooks, 65 Iowa 196, 452, 21 N.W. 561, 773; State v. Montgomery, 56 Iowa 195, 9 N.W. 120; People v. Pray, 1 Mich. N. P. 69; State v. Williams, 12 Mo.App. 415; Colbert v. State, 1 Tex. Ct. App. 314; In re Greenough, 31 Vt. 279-290; Watson v. People, 87 N.Y. 561, 41 Am. Rep. 397; People v. Oyer & Terminer, 83 N.Y. 436 at 436-449; People v. Cole, 20 N.Y.S. 505; People v. Rice, 128 N.Y. 649, 29 N.E. 146; State v. Mills, 17 Me. 211; Smith v. State, 55 Miss. 513; Watson v. State, 16 Lea (Tenn.) 604; Bowen v. State, 9 Bax. (Tenn.) 45, 40 Am. Rep. 71; Commonwealth v. Henry, 22 Pa. 253; Thomas v. People, 113 Ill. 531; Cowen v. People, 14 Ill. 348; Bartlett v. State, 28 Ohio St. 669, 670.
In discussing this question an eminent author said: 2 Bishops Crim. Law (7th ed.) §§ 433, 436.
In Reg. v. Jessop, supra, the defendant passed to another for change a bank note, saying that it was for five pounds, when it really was, as he knew, for only one pound, and received the change for a five-pound note. He was held to have committed the offense, although the person to whom he passed the note could read. Lord Campbell, C. J., said:
In Young v. Reg., 3 T. R. 98, Kenyon, C. J in defining the offense, gave "ordinary caution" as an ingredient; but Ashurst, said, "The legislature saw that all men were not equally prudent, and this statute was passed to protect the weaker part of mankind;" and Buller, J., said, "The ingredients of this offense are the obtaining money by false pretences, and with an intent to defraud." In Queen v. Wickham, 10 Ad. & El. 34, Denham, C. J., said to counsel arguing that the fraud must be such as to impose on a man of ordinary caution: In Reg. v. Woolley, supra, the pretense was by a secretary of an Odd Fellows lodge that a member owed it a certain sum, greater than the real debt, and thus got the excess for himself. Held a legal false pretense. Anderson, B., said: Lord Campbell said: "It seems that the legislature meant to prevent such gross frauds as may easily be perpetrated though an inquiry might easily be made." "I entirely agree with the observation of Lord Denman in Reg. v. Wickham," Earle, J., said: So, in Reg. v. Giles, L. & C. 502, where the defendant pretended to have power to bring back the prosecutrix's husband over hedges and...
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