The judgment was reversed at a previous day of this term, and is now before us upon motion filed by the Assistant Attorney-General, and in which motion the county attorney joins, asking for a rehearing. In the brief filed in connection with said motion, they have collated the following authorities: Cummins v. People, 25 Amer. St. Rep., 291; People v. Martin, 36 Pac. Rep., 952; Cunningham v. State, 38 At., 847; 12 Amer. Eng. Ency. of Law, 856; Com. v. Morrill, 8 Cush., 571; Gilmore v. People, 87 Ills. App., 128. In re Cummins, supra, after citing McCord v. People, 46 N.Y. 470, — the case relied upon by the court in the original opinion, — quotes from Mr. Bishop, wherein said author uses the following language: "Another doctrine, sustained in New York is, that where, if the false pretenses were true, the person parting with his goods would be guilty of a crime therein, or where he actually commits an offense in parting with them, the indictment for the cheat cannot be maintained. On the other hand, the Massachusetts court appears to have directly discarded this doctrine. The point decided was, that a defendant cannot set up, in answer to an indictment of this nature, any wrongful representation of the person injured concerning the goods charged to have been obtained through the false pretense. `Supposing' said Dewey, J., `it should appear that (the individual defrauded) had also violated the statute, that would not justify the defendants. If the other party had also subjected himself to a prosecution for a like offense, he also may be punished. This would be much better than that both should escape punishment because each deserved it equally.' And this view accords with the general spirit of the criminal law, wherein the fault of one man is not received in excuse for that of another; while the New York doctrine would introduce a well known principle of civil jurisdiction into a system of laws to which it is alien." Then the court concludes this opinion with the following language: "In our opinion the conclusion reached by Mr. Bishop is supported by the better reasons. The primary object of punishment is the suppression of crime; and where both the prosecutor and defendant have violated the law, it is better that both be punished than that the crime of one should be used to shield the other. When the plaintiff in a civil action is shown to have been guilty of a wrong in the particular matter about which he complains, he cannot ordinarily recover. But there is little chance to apply this rule to criminal prosecutions conducted by the State, the person defrauded being, at most, a prosecuting witness in the case, and not a party to the proceeding. The language of our statute is plain. The false pretenses charged in this case are embraced within its express terms, and we are not in favor of sanctioning a rule that will permit offenders to escape by showing that another should also be punished." *Page 89
In Com. v. Henry, 22 Pa. St., 263, Woodward, J., delivering the opinion of the court, approved the principle laid down in the last cited case, and used the language of Lord Kenyon in the case therein cited, to wit: "But when the criminal law happens to be auxiliary to the law of morality I do not feel any inclination to explain it away. Now this offense is within the words of the act, for the defendants have by false pretenses fraudulently contrived to obtain money from the prosecutor, and I see no reason why it should not be held to be within the meaning of the statute." Com. v. Henry was a case wherein defendant had obtained money from prosecuting witness by falsely representating he had a warrant for the arrest of the prosecutor's daughter, and under said false pretenses secured $100. The court concludes that said statement form a proper basis for the conviction of obtaining money under false pretenses.
In the case of the People v. Martin, 102 Cal. 558, a state of facts similar to those just discussed, arose. The court held: "The offense of obtaining money or other personal property by false and fraudulent pretenses is committed against the public, and not against the individual, and there is no principle of law that will bar the State from prosecuting a criminal because some other person is a particeps criminis; and an information charging that the false pretenses consisted of representations to the person defrauded by the defendant, that a judgment in a large sum of money had been obtained against her in another State, and that, believing such statements, she was induced to, and did transfer her property to the defendant in order to avoid the application of her property to the satisfaction of such judgment, states a public offense, which is not affected or barred by the intention of the party defrauded."
All the authorities cited by counsel for State support their contention. After a careful review of the same, in the light of the original opinion, we believe they announce the correct rule of law in reference to this transaction.
Reverting to the statute iteslf, article 861, Penal Code, under which this prosecution was instituted, we find it is very broad; and does not state that the pretense must be a legal pretense, if true, but merely requires that if the taking, though originally lawful, was obtained by any false pretext, etc., the party would be guilty of theft. So we hold that the statute itself is broad enough to cover the prosecution here involved. We are not at liberty to interpolate any words into the statute. An illegal false pretense would nevertheless be a false pretense. The statute says, "any false pretext," and an illegal pretext might be a false pretext. Accordingly we hold that the statute covers the prosecution; and that the original opinion herein is wrong. We have heretofore held that money obtained by false pretext in a game of cards was a violation of law. Connor v. State, 8 Texas Ct. Rep., 574. And the same principle seems to be announced in Gray and *Page 90 Ross v. State, 32 Tex.Crim. Rep.. The motion for rehearing is accordingly granted, and the judgment is affirmed.
Affirmed.
Henderson, Judge, absent.