REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPERIOR AND COMMON PLEAS COURTS. CRIMINAL LAW-EMBEZZLEMENT-FALSE PRETENSES. [Huron Common Pleas, June 24, 1909.] *STATE V. J. G. GIBBS ET AL. STATE V. A. M. BEATTIE. STATE V. WILLIAM PERRIN. STATE V. W. N. PERRIN. 1. OBTAINING MONEY BY FALSE PRETENSES INVOLVES ACQUIREMENT BY ACCUSED PERSONALLY. Consummation of the offense of obtaining money or property by false pretenses within the inhibition of Sec. 7076 Rev. Stat. requires (1) the accused's obtaining another's property for himself (2) by false pretenses as to past or existing facts (3) with intent to defraud and defrauding the owner thereof; procuring the owner to part with his property to a person other than the accused, in this case to deposit money in a bank of which accused is a director, is not an "obtaining" within the meaning of such statute. 2. FAILURE TO STATE NEXUS BETWEEN PARTIES TO TRANSACTION OF OBTAINING MONEY BY FALSE PRETENSES. An indictment, averring that certain officers of a banking company obtained money for another corporation in which they were also interested, by false representations as to the financial status of the latter, but not stating by allegation, innuendo or explanatory matter how the banking company was induced to part with its money, states no nexus between any of the three parties. 3. INSUFFICIENT DESCRIPTION TO APPRISE ACCUSED OF OFFENSE CHARGED. An indictment for obtaining property from a bank by false pretenses, such as "mortgage loans," "collateral loans," "unpaid interest," the description of which is not intelligible to ordinary minds, or capable of being understood by the grand jury, is deficient in particularity necessary to apprise accused and the court as to the nature of the offense charged. 4. DESCRIPTION OF NOTES EMBEZZLED SUFFICIENT TO APPRISE ACCUSED OF OFFENSE CHARGED. An indictment for obtaining from a bank certain notes is sufficient which describes such notes with such certainty as to identify them although the description is not as perfect as might be made; failure to describe Affirmed, in part, State v. Gibbs, 82 O. S. 456. 1 Dec. Vol. 20 Huron Common Pleas. certificates of stock, collateral for such notes, will not invalidate such indictment, since such certificates are not the property alleged to be unlawfully obtained, but such allegation is, in fact, descriptive of the notes upon which the bill is based. 5. ADVERTISING PAMPHLET HELD AN INSTRUMENT BY WHICH MONEY MAY BE UNLAWFULLY OBTAINED. A pamphlet, which is a mere advertisement or commendatory circular, while not an "instrument" in the legal, technical meaning of that word, yet comes within that term as used in Sec. 7076 Rev. Stat., making the sending of "any letter, telegram or other instrument" to obtain money unlawfully an offense. 6. THREE YEARS' GROUPING PROVISION OF EMBEZZLEMENT STATUTE NOT A LIMITA TION. Section 6842 Rev. Stat., defining embezzlement, and providing that if the sums embezzled "if within the three years prior to the inception of the prosecution amounts to or exceeds thirty-five dollars" shall be imprisoned in the penitentiary, is not a limitation as to prosecution; but is merely authority for grouping smaller items to make an offense in the aggregate a felony instead of a misdemeanor. 7. ACCUSED NOT ENTITLED TO HIS TESTIMONY GIVEN BEFORE GRAND JURY INDICTING HIM. Under Sec. 7195 Rev. Stat. authorizing the official stenographer to take shorthand notes of testimony before the grand jury and imposing an obligation of secrecy upon him not to disclose such testimony except to the jury or prosecutor, a motion will not lie to compel such stenographer to produce a copy of the testimony given by accused before the grand jury indicting him. 8. FACTS UNKNOWN TO GRAND JURY DO NOT EXCUSE STATE FROM STATING DESCRIPTION. An averment that certain descriptive features of property embezzled "are unknown to the grand jurors," is proper, but that does not excuse the state for failing to give a description thereof. 9. UNPAID INTEREST NOT SUBJECT OF EMBEZZLEMENT. Unpaid interest is not the subject of larceny, embezzlement or obtaining by false pretenses. [Syllabus approved by the court.] C. P. & R. D. Wickham, for, William Perrin. A. M. Beattie and C. L. Kennan, for J. G. Gibbs. A. V. Andrews, for J. F. Laning. L. W. Wickham, for W. N. Perrin. H. L. Stewart, for F. W. Christian. McKnight & Thomas, for E. C. Elnen. A. M. Beattie, pro se. A. V. Andrews and Irving Carpenter, for Day Kies. MOTIONS to quash and demurrers PHILLIPS, J. Many of these cases involve the requisite of certainty in statement, and sufficiency of description in the indictments, and I desire at the outset, to advert to the requirements of the constitution and the laws in that regard. The bill of rights provides, that "no person shall be held to answer State v. Gibbs. for a crime, unless on presentment or indictment." And, "the party accused shall be allowed to demand the nature and cause of the accusation against him." In considering this constitutional provision, the Supreme Court has held that the indictment must aver all the material facts which, under the statute creating the offense, are essential to constitute the crime; and these must be averred with such reasonable certainty that the court may see, without going outside of the record, that a crime has been committed, and that the accused may be advised, by a copy of the indictment which must be given him, just what he may expect to meet on the trial. Another reason assigned by some courts for this requirement of particularity in an indictment is, that it may appear to the court, from inspection of the indictment, that the grand jurors "have not gone upon insufficient premises." The grand jurors deal with both law and facts, and the facts found by them must be stated with such certainty and particularity that it may, appear therefrom that they have not made a wrong application of the law. This legal requirement of reasonable certainty in charging a crime is not a matter of sentiment, nor is it a matter of favor to the accused, nor does it rest upon the principle that requires strict construction in favor of the accused and against the public. It is based upon the plainest principles of right and fairness. Not all men that are indicted are guilty; innocent men may be charged with crime and put upon trial. A guilty man charged with crime may know full well what he is to meet upon trial, without particularity in the indictment. Not so with an innocent man; and since there arises no presumption of guilt, the government must treat every accused man as if he were innocent, until a verdict removes the presumption of innocence. Again, certainty in the charge facilitates the trial of the case; for unless the acts and transactions involved are reasonably identified and distinguished, the court cannot admit and exclude evidence with certainty and fairness. A number of these indictments charge the obtaining of money or property by means of false pretenses. The language of Sec. 7076 Rev. Stat. involved in these charges is this: "Whoever by any false pretense, with intent to defraud, obtains from any person anything of value" shall be punished. So that, to commit this offense, as it is undertaken to be charged in these indictments, one must (1) Obtain money from another, or property, as the case may be; (2) by a false pretense; and (3) with intent to defraud. |