Tingue v. State

• Decision Date: 26 June 1914
• Docket Number: 14507
• Citation: 90 Ohio St. 368,108 N.E. 222
• Parties: Tingue v. The State Of Ohio
• Court: Ohio Supreme Court

108 N.E. 222

90 Ohio St. 368

Tingue v. The State Of Ohio

14507

Supreme Court of Ohio

June 26, 1914

Limitation of word "obtain - Section 13104, General Code - Question of variance between pleadings and proof - Immaterial matter in indictment - Mistrial for error must not be ordered, when.

1. The word "obtain," as used in Section 13104, General Code, is not limited to getting, securing or appropriating money or property as owner. It includes as well the getting or securing of money or property by way of a loan.

2. Mere matter of unnecessary particularity or immaterial description contained in an indictment is not sufficient upon which to base a charge of variance between pleading and proof. Such variance must be based upon some essential element of the offense or some essential part of such element.

3. A mistrial should not be ordered in a cause simply because some error has intervened. The error must prejudicially affect the merits of the case and the substantial rights of one or both of the parties, and this is as true of the temporary absence of the judge as any other departure from due process of law during the trial of a cause.

Facts are stated in opinion.

Messrs Buchanan, Reed & Russell, for plaintiff in error.

Mr. W V. Wright, prosecuting attorney, for defendant in error.

WANAMAKER J.

Plaintiff in error was indicted by the grand jury of Tuscarawas county for obtaining money from one Alice M. Ohliger by false pretenses.

The indictment was in the usual form, save and except the false pretenses pleaded and also certain uses to which the money was to be applied. That portion of the indictment relating to the false pretenses charged is in substance as follows: That said Edward W. Tingue, on the 17th day of May, 1910, in the county of Tuscarawas, with the intent unlawfully and feloniously to defraud one Alice M Ohliger, did then and there unlawfully, feloniously and knowingly falsely pretend to her, the said Alice M. Ohliger that he, the said Edward W. Tingue, was then and there the owner of a large estate in the state of New York, worth $20,000, from which he received a large annual income; that he, the said Edward W. Tingue, was then and there the owner of other valuable property in the state of New York of the value of $17,000; that he, the said Edward W. Tingue, was then and there the owner of valuable railroad stock in The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company; that he, the said Edward W. Tingue, was then and there the owner of valuable stock in a woolen mill in the Dominion of Canada, which said woolen mill would be of the value of $1,000,000 when completed, and that he, the said Edward W. Tingue, then and there had the right to sell and dispose of stock of the aforesaid woolen mill; that, by which said false pretenses, then and there made as aforesaid, said Alice M. Ohliger, then and there believing said false pretenses to be true, and relying and acting upon that belief, was induced then and there to and did pay to the said Edward W. Tingue the sum Of $1,500 in money of the personal property of the said Alice M. Ohliger to be by him, the said Edward w. Tingue, invested in said woolen mill stock in the name of her, the said Alice M. Ohliger.

It is admitted that the indictment negatived the truth of said false pretenses and also charged that said Tingue well knew the said false pretenses to be false at the time of making the same.

A general demurrer was filed to the indictment, which was overruled and the defendant below excepted. A plea of not guilty was then entered and the case proceeded to trial to a jury, resulting in a verdict of guilty. A motion for a new trial, containing some fourteen grounds, was then interposed by the defendant, which motion was by the court overruled, exceptions taken and sentence imposed. Thereupon the case proceeded on error to the court of appeals, which affirmed the judgment below, and to that judgment of affirmance error was prosecuted to this court to reverse the judgment below.

The first question to be determined is, does the indictment charge the offense of "obtaining money by false pretenses?"

It is elementary that the elements of the offense are provided by the statute.

Section 13104, General Code, reads as follows: "Whoever, by false pretense and with intent to defraud, obtains anything of value or procures the signature of another as maker, indorser or guarantor to a bond, bill, receipt, promissory note, draft, check or other evidence of indebtedness or whoever sells, barters or disposes of a bond, bill, receipt, promissory note, draft or check or offers so to do, knowing the signature of the maker, indorser or guarantor thereof, to have been obtained by false pretense, if the value of the property or instrument so procured, sold, bartered or disposed of, is thirty-five dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than three years, or, if less than that sum, shall be fined not less than ten dollars nor more than one hundred dollars or imprisoned not less than ten days nor more than sixty days, or both."

An examination of the indictment in connection with the statute clearly discloses that every essential element of the offense, both as provided by the statute and numerous decisions thereunder by this court, have been adequately pleaded, and that the demurrer, therefore, was rightly overruled.

Upon the trial the whole transaction between the parties was fully disclosed, both by the prosecuting witness and the other witnesses to the transaction. Upon the evidence the defendant moved for a directed verdict in his favor upon the...