Blum v. State

White, Presiding Judge.

This appeal is from a judgment of conviction upon an indictment for swindling, brought under article 790 of the Penal Code.

In the view we take of the case it will be unnecessary to discuss the several questions raised in the motion in arrest of judgment as to the sufficiency of the indictment. We may, in fact, concede that *591the indictment, in its formal averments, is sufficient to charge the offense of swindling, as far as the facts averred can constitute that crime. Still, in our opinion, the sole question to be determined is, do the facts averred and the facts as proven constitute swindling, under the law?

Article 790 of the Penal Code reads: “Swindling is the acquisition of any personal or movable property, money, or instrument of writing conveying or securing a valuable right, by means of some false or deceitful pretense or device, or fraudulent representation, with intent to appropriate the same to the use of the party so acquiring, or of destroying or impairing the right of the party justly entitled to the same.”

To briefly state the substance of the charge as alleged in the indictment, it is as follows: Defendant obtained goods from one Goodman by means of false and fraudulent pretenses and devices. These pretenses and devices grew out of and were practiced by defendant under the following circumstances, viz.: That for some time prior to the 21st day of December, 1885, defendant had represented himself to be and was the owner, director and manager of a certain bakery and grocery establishment in the city of Corsicana. That, upon the faith of his possession and ownership of the property so connected with the business aforesaid, he had, for a period of more than one year, been in the habit of buying goods on a credit from Goodman, the prosecutor, and others. That, on said 21st day of December, defendant sold and transferred his entire property connected with his bakery and grocery business to his wife and step-daughter, and kept the fact of this sale and transfer secret for purposes of deception and fraud, in that he might still continue to purchase goods on a credit. That, on account of said false pretense and device, he deceived the said Goodman, who was thereby induced to sell him goods on a credit, etc., after the sale and execution of the deed of transfer of all his property to his wife and step-daughter. These were the averments.

As developed, by the facts proven, it appears that defendant had been in the habit of buying goods, etc., on a credit prior to the 21st of December. He had also used in his bakery and grocery business something over $1,800 in money belonging to his wife and step-daughter. To secure these latter, or to pay them this debt, defendant on the 21st of December executed a deed of sale to all of his property. This deed was executed in the forenoon, and when defendant left it with the clerk for registration he requested the clerk to say nothing about it, as, if known, it might affect or hurt *592him in his business. That same day, and, perhaps subsequently to the acknowledgment and-registration of the deed, defendant’s wife and father-in-law started out on quite an extensive purchasing tour, visiting several stores and business houses, and buying quite a quantity of goods at each house, regardless of the prices of the articles bought, and having the bills so made charged to defendant. Defendant was not present in a single instance when the goods were thus bought, though he may have sent his boy down to Goodman’s to hurry up the goods bought of him. When Goodman sold these goods (from his previous dealings with defendant and representations previously made him by defendant, and the fact that he was ignorant of defendant’s sale of his property to his wife and stepdaughter), he was still of the impression and belief that defendant owned the property, and would not have extended him the credit had he known that such was not the case. In brief, these are the main facts developed by the evidence. Do these facts establish a case of swindling under the law?

To constitute the offense described in article 790 of our Code, four things are necessary. 1st, the intent to defraud; 2d, an actual act of fraud committed; 3d, false pretenses; and 4th, the fraud must be committed or accomplished by means of the false pretenses made use of for the purpose; that is, they must be the cause which induced the owner to part with his property. (Comm. v. Drew, 19 Pick., 179; Comm. v. Warren, 6 Mass., 72; Desty’s Amer. Crim. L., § 149a; Buckalew v. The State, 11 Texas Ct. App., 352.) There must be an intent to cheat or defraud. This may be inferred from a false representation, however. (13 Wend., 87; 2 Whart. Crim. L. (8th ed.), § 1184.)

With regard to the false pretense, the pretense must consist of a statement of some pretended existing fact, made for the purpose of inducing the prosecutor to part with his property; no statement of anything to take place in future will be a pretense within the act. (2 Archbold Crim. Frac. & Pleading (8th ed.), side p. 465; Johnson v. The State, 41 Texas, 65; Allen v. The State, 16 Texas Ct. App., 150; 2 Whart. Cr. L. (8th ed.), § 1173.)

“ It may be laid down as a general rule of the interpretation of the words 6 by'some false pretense,’ which are used in the statutes, that, whenever a person fraudulently represents as an existing fact that which is not an existing fact, and so gets money, etc., that is an offense within the act.” (1 Bouvier’s L. Dic., “FalsePretenses.”) But “ it is not necessary that the pretense or pretenses should be in words; there may be a sufficient false pretense, within the meaning *593of the act, to be implied from the acts and conduct of the party, without any verbal representation of a false or fraudulent nature.” (2 Arch. Cr. Prac. & Plead. (8th ed.), p. 1386.) The conduct and acts of the party will be sufficient without any verbal assertion. (2 Whart. Cr. L., § 1170. “ Any designed misrepresentation of existing conditions by which a party obtains goods of another is within the statute.” (Id., § 1135.)

Another rule which seems to be well settled is that “ where two or more persons are jointly indicted for obtaining goods by false pretenses made designedly and with intent to defraud, evidence that one of them, with the knowledge, approbation, concurrence and direction of the other, made the false pretenses charged, warrants-the conviction of both.” (2 Whart. Cr. L., § 1171.)

Again, “it must appear by evidence that the prosecutor parted with his property by reason of the. false pretenses alleged, and of that alone.” This is the rule announced by Mr. Archbold in his work on Criminal Practice and Pleading. (2d vol. (8th ed.), p. 1398.) But the rule has been held otherwise by some of the courts in this country, as for instance in The People v. Haynes, 14 Wend., 547, where it was held that “it is not necessary, to constitute the offense of obtaining goods by false pretenses, that the owner should have been induced to part with his property solely and entirely by pretenses which were false; nor need the pretenses be the paramount cause of the delivery. It is sufficient if they aré a part of the moving cause, and without them the prosecutor would not have parted with his property.” (See, also, In re Snyder, 17 Kans., 542; S. C., 2 Am. Cr. R. (Hawley), 228.)

In Smith v. The State, 55 Miss., 513, it is held: “It is not necessary that the false pretenses should be the sole inducement which moved the prosecutor to part with his property. It is sufficient that they materially contributed to this end, and that without them he would not have parted with his property.” (S. C., 3 Am. Crim. Rep. (Hawley), 92.)

“A man whose sole will procures a transaction is a principal, whatever physical agencies he employs, whether he is present or absent when the thing is done.” But the false pretense must operate as the direct cause of the transfer of “ the goods, and to hold a party liable for goods thus obtained for defendant in accordance with his direction; if so, it is no defense that they were obtained mediately through a contract which the defendant’s false pretense induced the prosecutor to make.” (2 Whart. Crim. Law (8th,ed.), § 1180.)

*594Again, ifc may be stated as a rule “ that false representations as to defendant’s financial condition, made to induce a sale of goods, constitutes the offense of obtaining property by false pretenses.” (State v. Neymeyer, Iowa Sup. Ct., Sept. 30, 1885.)

Another rule is “ that a bargaining party also implies the existence of the conditions on which the other party depended when entering into the transactions, but at the same time it must be remembered that a bare entrance into a particular transaction is not in itself such an affirmation of the opinion of the other contracting party as to amount to a false pretense, even though the transaction be entered into fraudulently. A mere use of another’s error will not make a false pretense, unless there is something done by the deceiving party to confirm such error.” (See note to § 1170, 2 Whart. Am. Crim. Law.)

We have thus stated the principles of law which we think applicable to the facts of this case as shown by the record. How, upon these rules of law has the prosecution made out a case against this appellant? We are constrained to say that we do not think it has. Ho false pretenses in words are claimed to have been made by this appellant; for he was not present in person, and no false pretenses and declarations are shown to have been made by the wife and father-in-law who acted as his agents in the purchase of the goods. That Goodman may have entertained the opinion that the appellant still owned the property in the bakery and grocery, and made the sale upon the belief that he still owned said property, cannot effect the question unless the acts of the parties purchasing the goods induced that belief at the time. It was simply an error of opinion upon his part; and a knowledge of the fact that he was acting upon such belief or opinion, without correcting it, will not subject the defendant or his agents to a charge of having made a false pretense by withholding the information which would have corrected his belief. It was his own opinion as to the existence of a fact which did not exist, and not the acts, declarations or representations of the parties with whom he was trading, which caused him to be deceived.

In The Commonwealth v. Grady, 13 Bush (Ky.), 285, it is held that “a false statement that a house and lot were unincumbered, when in fact they were subject to a recorded mortgage, is not a false pretense within the statute, because the party defrauded had the means of detecting it at hand, and might have protected him- • self by the exercise of common prudence.” (S. C., 2 Am. Crim. Rep. (Hawley), 105.) It is unnecessary that we should go in this *595case to the extent to which the Kentucky court has gone in said case, because no direct, positive declaration or representation was made to Goodman by any of the parties, with regard to the condition of the property at the time of the purchase of the goods.

[Opinion delivered March 13, 1886.]

Our conclusion of the whole matter is that a case of obtaining goods by false pretenses has neither been stated by the indictment nor established by the proofs adduced on the trial of this case; wherefore the judgment is reversed and the prosecution is dismissed.

Reversed and dismissed.