State v. Paul , 1879 Me. LEXIS 41 ( 1879 )

Peters, J.

The defendant is accused of obtaining money by false pretenses. lie demurred to the indictment. It alleges that he represented that a parcel of land contained “ about ” one hundred acres, when in fact it did not contain one hundred acres. But, in criminal pleading, one hundred acres and about one hundred acres are not to be regarded as the same thing. The indictment also alleges that the respondent represented the land to be well wooded and well timbered and to have upon it a valuable growth of hard and soft wood and hemlock bark, and that the land was worth one thousand dollars, and that such representations were untrue. But all this is too much of the nature of an expression of opinion merely, to be actionable in a civil suit, and a fortiori not sufficient to support a criminal prosecution. What ■would be a valuable growth upon land, or a well wooded or timbered tract, is a very uncertain thing. The terms are indefinite. What one man would regard as valuable another might not. Where the representations embrace no details or particulars they should not be relied on.

The case of Bishop v. Small, 63 Maine, 12, and the cases cited in that case, and the arguments and citations contained in them, cover this whole field of inquiry. See, also, Martin v. Jordan, 60 Maine, 531, and Mooney v. Miller, 102 Mass. 217. The case of State v. Stanley, relied on by the government, differs from this case. See 64 Maine, 157. There a horse was represented to be sound. Whether he was or was not was a matter within the knowledge of the seller, and not ascertainable by the purchaser upon ordinary observation. Such a statement is regarded as a representation of fact, although very near the line that separates the one kind of representation from the other. Had the indictment in this ease alleged that there was no growth of wood or timber upon the land, then the representations, if false, might appear to have been criminal. It does contain the words, “ the timber, bark and lumber having been, previously to said April 20, 1874, cut and hauled off.” But this is not a direct and positive assertion, but is given merely as an argument or reason why the land was not worth one thousand dollars, and (perhaps) why not well wooded and well timbered. All the authorities upon criminal pleading agree that the want of a direct and positive allegation, in the description of the substance, nature or manner of the offense, cannot be supplied by any intendment, argument or implication whatever. Com. v. Shaw, 7 Met. c. 57. The charge must be laid positively, and not informally or by way of recital merely. 1 Archb. Crim. Pr. & Pl. 87. 2 Hawk, c, 25, § 60. See Morse v. Shaw, 124 Mass. 59.

Demurrer sustained.

Appleton, C. J., Danforth, Yirgin, and Libbey, JJ., concurred.