Miller v. State , 73 Ind. 88 ( 1880 )

Howk, J.

— The appellant, Stephen S. Miller, was duly indicted, tried and found guilty, and, by the judgment below, sentenced to the State’s prison for a term of years, upon a charge of having obtained money under false pretences. From the judgment of the circuit court the appellant, Miller, has appealed to this court, and has here assigned, as error, the decision of the court below in overruling his motion to quash the indictment. It will be seen, therefore, that the only questions presented by the record of this cause, and the error assigned thereon, for the decision'of this court, relate to the sufficiency or insufficiency of the indictment on which the appellant was tried and convicted.

The indictment charged, in substance, that the appellant, “Stephen S. Miller, on the 12th day of October, A. D. 1879, at said county of Jennings and State aforesaid, did, then and there, feloniously, knowingly and designedly, and with the intent to defraud one James C. Hassey, falsely pretend and represent to him, the said James C. Hassey, that he, the said Stephen S. Miller, was then and there the owner of, and had on deposit to his credit in the Fourth National Bank of the city of Cincinnati, in the State of Ohio, a large sum of money, to wit, the sum of one thousand dollars, being then and there-the money and property of him, the ■ said Stephen S. Miller, as he then and there represented to the said James O. Hassey, and the said James C. Hassey then and there knew the said Stephen S. Miller, and had, before said 12th day of October, 1879, had business transactions with said Stephen S. Miller of an important character, and the said James C. Hassey had, before said 12th day of October, 1879, been intreduced to the said Stephen S. Miller, as a man of means and large property, by one John J. Wright, whom the said James C. Hassey then and there well knew, and believed to be a responsible man, and a person on whom he, the said James C. Hassey, could rely, and whose word he, the said James C. Hassey, could and did rely upon, and that he, the said James C. Hassey, did then and there rely upon and believe the recommendations of the said John J. "Wright, as to the solvency and business standing of the said Stephen S. Miller, and was induced thereby to give credit to the said Stephen S. Miller’s statements and pretences as aforesaid, which said false pretences were then and'there made by him, the said Stephen S. Miller, tollina, the said James C. Hassey, feloniously and designedly,, and the said Stephen S. Miller then and there knowing that the same avere false, for the purpose of inducing the said' James C. Hassey to loan the said Stephen S. Miller the sum of twenty dollars in money; and the said James C. Hassey,, relying upon and believing the said 'false pretences to be true, and having no means of knowing, and did not know,, that the same were false, and being deceived thereby was induced, by reason thereof, to loan, and did loan, him, the said Stephen S. Miller, a large sum of money, to wit, twenty dollars, in the lawful money of the United States, the same-being a United States treasury note, of the denomination of twenty dollars, commonly called a greenback, then and there of the value of twenty dollars, and being then and there the money and property of the said James C. Hassey; ' whereas, in truth and in fact, the said Stephen S. Miller was not then and there the owner of one thousand dollars in money, and whereas in truth and in fact the said Stephen S.Miller did not then and there have on deposit, to his credit, in the said Fourth National Bank of the city of Cincinnati, in the State of Ohio, the said sum of one thousand dollars in money, or any other sum of money, but that said pretences were then and there false, as the said Stephen S. Miller then and there well knew, contrary to the form of the statute,” etc.

It is apparent, we think, from the language of the indictment in this case, that it was intended therein and thereby to charge the appellant with the commission of the felony which is defined, and its punishment prescribed, in section 27 of “An act defining felonies, and prescribing punishment therefor," approved June 10th, 1852. So far as applicable-to the case at bar, the provisions of said section 27 are as. follows:

“If any person, with intent to defraud another, shall, designedly, by color of * * * any false pretence,. * * * obtain from any person any money, * * *■ or thing of value ; such person shall, upon conviction'thereof, be imprisoned in the State’s prison not less than two nor more than seven years, and fined not exceeding double the-, value of the property so obtained.” 2 R. S. 1876, p. 436.

This section of the felony act has often been the subject of examination and consideration in the decisions of this, court; and the insufficiency of the facts stated to constitute-false pretences, within the meaning of the statute, has frequently been presented and relied upon, as cause for the quashing of the indictment, in other cases before this court. Upon this subject, in Clifford v. The State, 56 Ind. 245, in construing the above quoted section of the felony act of June 10th, 1852, it was said by this court: “It is true, that it is not every false pretence, on which a criminal charge may be predicated; but such false representations of alleged existing facts, as might deceive the man of common intelligence, will support an indictment for obtaining goods under-false pretences, and in such a case the party-indicted ought not to be permitted to escape the punishment prescribed for the offence, upon the plea that a .prudent or cautious man would not have been deceived by his false representations.” The State v. Magee, 11 Ind. 154; Leobold v. The State, 33 Ind. 484: Jones v. The State, 50 Ind. 473; The State v. Timmons, 58 Ind. 98 ; Bonnell v. The State, 64 Ind. 498 ;: The State v. Snyder, 66 Ind. 203; Perkins v. The State, 67 Ind. 270.

In the case at bar, we are of the opinion that the facts-stated in the indictment were clearly sufficient to constitute a public offence, under the provisions of said section 27 of the felony act, and that the appellant’s motion to quash the •same was correctly overruled by the trial court. It is •claimed in argument by the appellant's counsel, “that the facts stated in the indictment in this cause ax-e not such as would induce a person of ordinary care and prudence to part with his property.” In discussing this point, counsel says ixxterrogatively: “Would aixy person of ordinary care and pirecautioix have loaned the appellant, or anx stranger or tramp, twenty dollax’s, or any other sum, íxxex'ely because the stranger said he had one thousand dollars, or any other sum, ixx soxxxe bank out of the State?” Counsel thinks that this court will promptly answer his question in the negative ; axxd •so, perhaps, we might, if the x'ecord of this' cause had presented his questioix in the precise terms iix which counsel has expressed it. But there is nothing in the record to ixxdicate that the appellant, at the date of the txansactioxx on which the indictment is predicated, was a straugex to the prosecuting witness, James C. Hassey, or that he, the appellant, was what in modern times has been aptly tex-meda “tranxp,” a wandering, homeless vagabond. On the contrary, the ixxdictmexxt chax’ged that, before that'date, Hassey kixew the ■appellant and had transacted busiixess of an importaxxt chax’■acterwith hixxx, axxd that he had beeix ixxtroduced to Hassey •as “a rnaix of means axxd lax’ge propcx’ty.”

The court did not exT, we think, iix ovex’ruling the appellant’s motion to quash the indictment.

The judgmexxt isaffimied, at the appellaixt’s costs.