Huron Common Pleas. tate, or direct or handle the fund so deposited. He can not receive a dollar of it and he would have no authority individually to control it, but that does not fully answer the problem that is to be decided in this "The language of the statute is 'obtains,' and while, as I have said, a director, by virtue of the deposit, certainly would not receive this fund, would not be able individually to control it, yet the question still remains whether, within the meaning of the statute, the property has been by him 'obtained.' 'Obtain' as I understand it, means to get by effort, to procure. Neither the title nor the possession of this money, under the averments of the indictment, passed to the defendant. He did not, therefore, receive it. Nevertheless, in the opinion of the court, he did, within the meaning of this statute, obtain it, although the bank received it. If I solicit, successfully, the appointing power in behalf of my friend, I obtain the appointment, but the commission, on being delivered, is delivered to my friend and he receives the appointment. I think that distinction is applicable to the cases now under consideration. Especially is that true when we consider the object of this statute, which is, to make unlawful the defrauding of another by false pretenses. What, then, are the elements of the offense? They are, false statements, knowingly made, and something of value parted with upon the faith of them. The state is not so much concerned as to who derives the benefit as it is that by means of false statements, knowingly made, the prosecuting witness has been deprived of his property." I think that is in clear conflict with the attitude of our Supreme Court. Here is where I think Judge Richards falls into error, by regarding the defrauding of another as the thing that the statute is aimed at. In enumerating the elements of the offense, he entirely omits the obtaining. It seems to me he extends the statute, by a liberal construction. The cases Connor v. State, supra; Bracey v. State, supra; Waterman, In re, supra; Norris v. State, supra; Kennedy v. State, supra, and many cases not cited, all show that the gist and consummation of the offense is the obtaining by the accused. Then Judge Richards goes on: "It seems to the court then, that if the defendant made the false pretenses knowingly and thereby induced the prosecuting witness to deposit money in this bank, the defendant obtained it, within the meaning of the statute. I reach that conclusion upon considering the objects and purposes of the statute, and the meaning of the word "obtain." Undoubtedly, under ordinary circumstances, a man, when he obtains an article, receives it; but I am convinced that the reception. is not the essential part of the obtaining; that if, by the efforts and rep State v. Perrin. resentations of a party, another is induced to part with his property, then that property has been obtained, within the meaning of this statute, although the title to it may not pass to the person who made the representations. What say the authorities upon this question? They are not uniform and it would be impossible to reconcile all of them. I have examined a great many and it seems to me that the greater weight of the authorities is decidedly in favor of the view which I have taken." Then Judge Richards cites State v. Hofman, 2 Dec. 206 (1 N. P. 290). Then he concludes, reading from the last paragraph of the opinion in that case: "It is alleged against this indictment, on both counts, that there is no allegation that the defendant intended to obtain this money for himself. The statute says, 'whoever writes part of a written instrument with intent to obtain anything of value.' It does not say for whom the property should be obtained." That was a Cincinnati case decided by a common pleas judge and under another section of the statute. This case (State v. Hofman). involved Sec. 7088 Rev. Stat., which makes it a crime to do certain things, "with intent to obtain" property from another, without actually obtaining it. It does not involve any invasion of the property right. It deals with an attempt to invade the property right. The indictment in that case did allege that the acts of the accused were done "with the intent to obtain property." It did not allege that the intent of defendant was to obtain the property for himself, and the court, on demurrer held the indictment good, because it had all the statutory requirements. The court (of common pleas) did not decide, or undertake to decide, the meaning of the word "obtain," which was the point Judge Richards decided. Judge Richards cites other cases most of which ustain him, but a few of them do not. As I said, I think our Supreme Court in the case of Kennedy v. State, supra, clearly indicated a contrary view of the statute. In view of the decision of Judge Richards, and because I was not able to concur with him, I obtained from Cleveland, 1 Dears. Cr. Cas. which contains the original report of the case of Regina v. Garrett on which is based all the sound doctrine which occurred to me to be sound on this subject. This case was decided by the court of King's Bench, in London, in 1853. The defendant, Garrett, was indicted in England for a misdemeanor in attempting to obtain moneys from L. & Co. by false pretenses. The defendant had a circular letter of credit, No. 41, from Duncan, Sherman & Co. of New York for 210 pounds, with authority to draw on L. & Co. in London in favor of any of the lists of correspond Huron Common Pleas. ents of the bank in different parts of the world for all of such sums as he might require of the 210 pounds. The circular letters of credit of Duncan, Sherman & Co. were each numbered with distinctive numbers and it was the practice of the correspondent on whom the draft was drawn, after giving cash on such draft, to endorse the amount on the circular letter and when the whole sum was advanced, the last person making such advance, retained the circular letter of credit. The defendant, having procured from Duncan, Sherman & Co. of New York, a circular letter of credit for 210 pounds, No. 41, came to England and drew drafts in favor of the named correspondents there, in different sums, in the whole, less than 210 pounds, retaining the circular letter, the sums so advanced being endorsed on the letter. He then went to St. Petersburgh and there exhibited the letter of credit to W. & Co. of that place, a firm mentioned in the list of correspondents, the letter having been altered by him, by the addition of the figure 5 to 210, so converting it into a letter of credit for 5,210 pounds. He obtained from that house several sums, and finally the sum of 1,200 pounds, and another of 2,500 pounds on drafts for those amounts on L. & Co. W. & Co. forwarded these drafts to their house in London, who presented the draft for 1,200 pounds on L. & Co. and required payment of it. L. & Co. having been advised of the draft, No. 41, by Duncan, Sherman & Co. as a draft for 210 pounds only, discovered the fraud and refused to pay it. The defendant being afterwards found in England, was taken into custody and indicted, and as before stated, the jury found the prisoner guilty, and in reply to a question put by the learned Baron, as to whether, although the defendant's immediate object was to cheat W. & Co. at St. Petersburgh by means of a forged letter of credit, he did not also mean that they or their correspondents, or the endorsers from them should present the draft and obtain payment of it from L. & Co., and the jury further found that he did. Held, that if L. & Co. had paid one of the drafts, the defendant could not in law have been found guilty of a statutory misdemeanor, and consequently that he could not have been guilty of an attempt to commit a common law misdemeanor. There was a conviction and counsel for the Crown strove strenuously to maintain it, but the court held against it. This report contains a sort of running fight between counsel and the court. Huddleston (who was with Dearsly), in support of the conviction, was then heard upon this point: "It is not necessary to constitute an offense within the act of parliament that there should be a getting of money for the party himself, that is, use, but the inducing another to part with his money under such State v. Perrin, circumstances as amount to cheating, is sufficient. The words of the statute are, 'obtain from any other person.' That is the language of our statute. "Suppose a man intending to ruin another, induces him, by false pretenses, to part with a large sum of money to a third party, would it not be obtaining money under false pretenses?" This is the language of counsel for the Crown, and Maule, J., interrupts him: "You say it is sufficient, if a man by a false pretense, induces another to spend his money?" Huddleston: "There must be intent to cheat or defraud." Maule, J. "The word 'obtain' means the same as the word 'get' in its sense of 'acquire.'" Coleridge, J.: "You must consider the word with reference to its use in the statute which draws a distinction between larceny and false pretenses." Huddleston: "The statute does not contemplate the benefit of the party defrauding, but the injury to the party defrauded." That is just the view that Judge Richards took in almost so many words. "Here, there was an 'acquiring' to the use of the defendant. It is not necessary that the party from whom the money is obtained, should actually hand it over to the person making the false pretense. This case is distinguishable from that put on the other side of the five pound forged note. The jury have found that defendant meant that Wilson & Co. in St. Petersburgh, or their correspondents, or endorsers, should present the draft, and obtain payment of it from the Union Bank. Thus Wilson & Co. are the agents pointed out and mentioned by the defendant himself as the persons to whom the Union Bank, with whom he falsely asserts he has credit, should pay the money. They are the persons to receive it." Lord Campbell: "What were they to do with the money when received?" Huddleston: "They were to apply it to his use. An actual reduction of the money into the possession of the defendant cannot be necessary. Wavell's case is distinguishable, the decision being, that no specific sum was obtained, but credit in account," etc. Then we come to the judgment of the court; Lord Campbell, Chief Justice: "I am of opinion that the conviction cannot be supported." Lord Campbell concludes by saying: "A gross fraud has been committed, but not the obtaining money under false pretenses within the statute." 2 Dec. Vol. 20. Huron Common Pleas. Parke, Baron: "The word 'obtain,' as used in the statute, seems to mean, not so much a defrauding or depriving another of his property, as the obtaining some benefit to the party making the false pretenses.' Maule, J., states his view in addition to what had already been said that the offense was committed in Russia and that the English court had no jurisdiction, that there was a wrong venue. case: I read from 2 Roscoe's Crim. Ev. 649, in commenting upon this "Meaning of the word 'obtain.' The property must be obtained by the prisoner.' In Regina v. Garrett (the case from which I have just read), Maule, J., said, the word 'obtain,' means the same as the word 'get' in its sense of 'acquire,' and Parke Baron said, the word 'obtain' seems to mean not so much a defrauding or depriving another man of his property as the obtaining some benefit to the party. But in Regina v. Kilham, L. R. 1, C. C. R. 261, etc., it was held that the word 'obtain' does not mean obtain the loan of, but obtain the property in, and that the obtaining must be coupled with an intention to deprive the owner of his property, and not a mere intention to make use of the thing and return it. It was in consequence of the decision in Regina v. Garrett, that Sec. 89 of the English Statute was enacted, under which it is necessary that the defendant should obtain, in the sense of 'get' or 'acquire' for his own benefit, and it is sufficient under that section, if he causes money, etc., to be paid to any person, whether for his own benefit or for the benefit of anybody else." Then in 2 Russell, Crimes 618 and 619: "By the 24 and 25 Vict. c. 96, s 88, 'whosoever shall by any false pretense obtain from any other person any chattel, money, or valuable security with intent to defraud, shall be guilty of a misdemeanor,'" etc. "Section 89," (and this is the section they enacted because of that decision in Regina against Garrett),—they wanted their statute to embrace, the procuring of a party to pay money to a third person, as well as the obtaining of it by the wrongdoer himself; so this Sec. 89 was enacted, and it reads: "Whosoever shall by any false pretenses, cause or procure any money to be paid, or any chattel or valuable security to be delivered to any other person, for the use or benefit or on account of the person making such false pretense, or of any other person, with intent to defraud, shall be deemed" etc.-"shall be deemed to have obtained such money, chattel, or valuable security, within the meaning of the last preceding section." "This clause is new. It is intended to meet all cases where any person by means of any false pretense induces another to part with |