State v. Asher

• Decision Date: 05 May 1888
• Citation: 8 S.W. 177
• Parties: STATE <I>v.</I> ASHER <I>et al.</I>
• Court: Arkansas Supreme Court

8 S.W. 177

STATEv.

ASHER et al.

Supreme Court of Arkansas.

May 5, 1888.

Appeal from circuit court, Phillips county; N. T. SANDERS, Judge.

At the May term, 1887, of the Phillips circuit court, appellees were indicted for violation of section 1645 of Mansfield's Digest; i. e., obtaining money under false pretenses,—Asher as principal, and Fitzpatrick as accessory. It is charged in the indictment that on the 17th of April, 1885, said Asher applied to one J. P. Moore to purchase six mules; that he represented himself as being the absolute owner of the east half of lot 251, in the city of Helena; that it was free from incumbrance; that he could give a first lien on same; and produced a deed of conveyance to the same from L. A. Fitzpatrick, reciting the full payment of the purchase money, and offered to secure the payment of the purchase money of said mules by creating a first lien on said lot; that Moore did sell him said mules on a credit to expire November 1, 1885, and took a deed of trust on said lot to secure the purchase money of the mules, which deed of trust was executed by said Asher on the 17th, and was filed for record on the 18th, day of April, 1885; that said sale was made on the faith of the security afforded by a first lien on the east half of said lot. It is further charged that at the time Asher made these representations he had already executed to said Fitzpatrick a deed of trust upon the east half of said lot, to secure the purchase money of same, which was more than the value of the lot; that said lot was not free from incumbrance; and that Asher falsely made the representation that he could give a first lien on said lot, to deprive said Moore of his property; that Fitzpatrick's deed of trust was filed for record on the 17th day of April, 1885. Fitzpatrick is indicted jointly with him as accessory. At the November term, 1887, of the court, the defendant demurred to the indictment; the demurrer was sustained, and the state appeals.

Mansf. Dig. § 1645, provides that any one who obtains anything of value from another, with intent to defraud or cheat, by any false pretense, shall be deemed guilty of larceny, and punished accordingly.

J. P. Clarke and D. W. Jones, Atty. Gen., for appellant. P. O. Thweelt, I. J. Hornor, Compton & Compton, and J. C. Tappan, for appellees.

COCKRILL, C. J., (after stating the facts as above.)

To constitute an offense within the meaning of section 1645, Mansf. Dig., something of value must be obtained by means of a false pretense with the intent to defraud. To obtain goods with the...