State v. Toney

• Decision Date: 09 November 1909
• Docket Number: 11762
• Citation: 81 Ohio St. 130,90 N.E. 142
• Parties: The State v. Toney.
• Court: Ohio Supreme Court

90 N.E. 142

81 Ohio St. 130

The State v. Toney.

No. 11762

Supreme Court of Ohio

November 9, 1909

False pretenses - Title to real estate may be subject of - Under Section 7076, Revised Statutes - Indictment apprising party of charge - Not void for uncertainty, when.

1. Section 7076, Revised Statutes, which makes it an offense to obtain by any false pretense, and with intent to defraud, any thing of value, applies to a charge for obtaining by false pretense, with intent to defraud, title to real estate situate in this state.

2. An indictment which apprises the party charged of the charge against him so that he may know from the language of the instrument what he is expected to meet and will be required to answer, alleges sufficient matter to indicate the crime and the person charged and is not void for uncertainty.

At the January term, 1908, of the common pleas of Darke, an indictment was returned by the grand jury against the defendant in error, Oliver H. Toney, of which a copy follows:

"The State of Ohio, Darke county, ss:

"In the court of common pleas, of Darke county, Ohio, of the term of January in the year of our Lord one thousand nine hundred and eight.

"The jurors of the grand jury of the county of Darke and State of Ohio, then and there duly impaneled, sworn and charged to inquire of and present all offenses whatever committed within the limits of said county, on their oaths, in the name and by the authority of the State of Ohio, do find and present: That O. H. Toney, late of said county, on or about the 22d day of November, in the year of our Lord one thousand nine hundred and six, at the county of Darke aforesaid, unlawfully did falsely pretend, with intent to defraud, to one Emily J. Barcalow Henizer, that he, the said O. H. Toney, and William Smith were the owners of and had a right to convey free of all incumbrances, the following described real estate, to-wit: Being the east half of the northwest quarter of section seventeen (17), township twenty-five (25), range four (4) east, in Oscoda county state of Michigan, containing eighty (80) acres of land, more or less; and that said real estate was free and unincumbered and that a certain abstract of the title of said real estate purporting to have been made and certified to by one James A Browning, abstracter and attorney of Oscoda county, Michigan and purporting to show a clear title to the lands aforesaid in said William Smith was true and genuine, by which false pretenses the said O. H. Toney then and there unlawfully did procure from the said Emily J. Barcalow Henizer a deed of general warranty for the following described real estate situate in the county of Darke, in the state of Ohio, and in the city of Greenville, and being lot No. 1165 in Anderson, Riffle & Hart's Addition to said city of Greenville, Darke county, Ohio, and being of the value of one thousand dollars ($1,000); whereas in truth and in fact, the said Oliver H. Toney and William Smith were not the owners of and had not the right to convey free of all encumbrance the above described real estate; and whereas in truth and in fact the said real estate was not free and unincumbered; and whereas the abstract of title which was presented to the said Emily J. Barcalow Henizer purporting to show a clear title to the said lands aforesaid, was not true and genuine, but was false, forged and counterfeited; and the said O. H. Toney at the time he so falsely pretended as aforesaid, well knew the said false pretenses to be false.

"MARION MURPHY,

"Foreman of Grand Jury."

To this indictment a demurrer was interposed by the defendant. The same being overruled, a trial was had at the June term, 1908, which resulted in a verdict of guilty, the jury finding the value of the property obtained at the sum of seven hundred dollars. Motion for a new trial being overruled sentence was imposed of confinement in the penitentiary of eighteen months, and costs were adjudged against defendant. On error to the circuit court that judgment and sentence were reversed on the ground that the court of common pleas erred in overruling the demurrer, and defendant was ordered discharged. The state seeks a reversal of that judgment.

Mr. John F. Maher, prosecuting attorney, and Messrs. Robeson & Yount, for plaintiff in error.

Section 6794, Revised Statutes, defines the term "anything of value," to include "things which savor of the realty, and are, at the time they are taken, a part of the freehold, whether they be of the substance or proceeds thereof, or affixed thereto," and also "every other thing of any value whatever."

The word "effects" will embrace lands, tenements, etc. State v. Newell, 1 Mo. 248.

The rule of strict interpretation for criminal statutes does not hinder the courts from searching for the legislative will. State v. Thatcher, 35 N. J. L., 445; Maxwell v. People, 158 Ill. 248.

"Other valuable thing" includes everything of value (People v. Stone, 9 Wend., 182); a non-negotiable promissory note (State v. Porter, 75 Mo. 171); the endorsement to a promissory (State v. Blauvelt, 38 N. J. L., 306; Robinson v. State, 53 N. J. L., 41); a promissory note is a "valuable thing" (State v. Vandenburg, 159 Mo. 230); a contract and an assignment may be treated as property (People v. Martin, 102 Cal. 558).

The following authorities also sustain the decision of the trial court as to the sufficiency of the indictment: Woodruff v. State, 61 Ark. 157; State v. Tripp, 113 Ia. 698; State v. Patty, 97 Ia. 373; In re Lazarus, 1 City H. Rec., 89; People v. Turpin, 233 Ill. 452.

When the provisions of sections 7076, 6795, 7215 and 7216 are all considered with a view of ascertaining the clear intent of the legislature, there should be no difficulty in sustaining the holding of the common pleas court in this case. Kennedy v. State, 34 Ohio St. 310; Tarbox v. State, 38 Ohio St. 581; Williams v. State, 77 Ohio St. 468.

Mr. T. C. Miller and Mr. D. W. Bowman, for defendant in error.

It is well settled, that we have no common law crimes in this state, and that we must look to the statute to ascertain the offense charged. Johnson v. State, 66 Ohio St. 59; Sutcliffe v. State, 18 Ohio 469; Mitchell v. State, 42 Ohio St. 383; Smith v. State, 12 Ohio St. 466.

A statute defining a crime can not be extended by construction to persons or things not within its descriptive terms, though they may appear to be within the reason and spirit of the statute. State v. Meyers, 56 Ohio St. 340; United States v. Wiltberger, 5 Wheat., 76.

But where the legislature by statute adopts or creates an offense which was a crime at common law, it is proper to resort to common law in order to ascertain the true meaning of the statute. Railroad Co. v. Keary, 3 Ohio St. 202.

And notwithstanding the common law of England and the statutes of the British Parliament were made operative as law in this state by the territorial act of October 1, 1795, and were repealed by the act of January 2, 1806, it does not follow that the common law of England is not of force in this state. Drake v. Rogers, 13 Ohio St. 29.

At common law personal property only was the subject of this offense and it was confined to very narrow limits. Rex v. Wheatley, 2 Burr., 1125; Act of 33, Henry VIII; Statute of 52, George III; Wheeler's Criminal Cases, 179; 3 Chitty's Criminal Law, 994-999; People v. Cummings, 114 Cal. 438; Cross v. Peters, 1 Me. 387.

Most of the American statutes are modeled on these two English statutes. This is true in this state, section 12 of the act of March 8, 1831 (29 O. L., 144, S. & C., 429), being almost an exact duplicate of the act of 30th George II.

But it is contended that as the clause, "money, goods, merchandise or effects, whatsoever," was omitted from section 7076, Revised Statutes, at the time of the revision, and the phrase, "anything of value," substituted therefor, a radical legislative change in definition was thereby intended, and real property made the subject of false pretenses.

But this by no means follows. The code commissioners had no authority to legislate, and their power to change was very limited and did not extend to matters of substance. Allen v. Russell, 39 Ohio St. 338; 72 O. L., 87.

Where all the general statutes of a state, or all on a particular subject, are revised and consolidated, there is a strong presumption that the same construction which the statutes received, before revision and consolidation, should be applied to the enactment in its revised and consolidated form. Allen v. Russell, 39 Ohio St. 336; State v. Eno, 131 Ia. 621; State v. Black, 75 Wis. 493; State v. Gillespie, 80 N. Car., 397.

The New Jersey statute uses the words "money, wares, merchandise, or other valuable thing," and it was held that the legislature intended to denounce as a crime the obtaining by deceit of every valuable thing of a personal nature. State v. Thatcher, 35 N. J. L., 445.

Under the English statute, as well as the act of March 8, 1831, the offense of obtaining property by false pretenses stood upon the same ground as larceny. The owner might also be induced by fraud, trick or device to part, not only with the possession, but with the title as well, and then the offense would not be larceny, but obtaining by false pretenses. People v. Tomlinson, 102 Cal. 23; People v. Shaughnessy, 110 Cal. 602; Miller & Smith v. Commonwealth, 78 Ky. 15; Aldrich v. People, 224 Ill. 626; People v. Laurence, 137 N.Y. 517; Commonwealth v. Lannan, 153 Mass. 287; State v. Vickery, 19 Tex. 326; State v. Ryan, 47 Oregon, 338; Kellogg v. State, 26 Ohio St. 15.

In some states this distinction beween larceny at common law and obtaining money by false pretenses and embezzlement has been swept away and all made larceny. State v. Henn, 39...