The prisoner was indicted, tried, and convicted, of obtaining the signature of one Trumbull Carey to a check for $2,000 upon the Bank of Grenesee.
He now moves, under section 35 of the act relating to this court (Laws 1857, vol. 1, page 754), for a new trial, upon the ground that error in law was committed by the court upon the trial.
The indictment contains two counts. • The pretenses are laid ¡substantially the same in both counts.
The first count alleges that the prisoner, by means of the false pretenses, obtained Carey’s check, in writing, upon the Bank of Grenesee, for $2,000, and also certain other contracts in writing, setting-them out at large; also $2,000 in money, and $1,000 in bank bills, the valuable things and personal property of said Trumbull Carey, of the value, &c. It does not, in terms or in substance, charge the obtaining of the signature of Carey to the check.
The second count charges that the prisoner, by means of the false pretenses, obtained the signature of Trumbull Carey to a written instrument commonly called a check, setting it out at large. This count, in brief, charges that the prisoner presented to Carey a mortgage made by one Cross and wife to one Moulton, upon certain lands in Grenesee county (which mortgage and lands are particularly described), and-induced Carey to purchase the mortgage, and to affix and write his name and signature to the check, by falsely, &c., representing, with the intent to cheat and defraud Carey, that such mortgage “ was the only mortgage, lien or incumbrance of any kind upon *164the ¡premises in said mortgage described; that there was no other mortgage, lien or incumbrance, upon the premises therein described; that it was a first and only mortgage, lien or incumbrance upon the premises therein described, and was a bona fide mortgage, and given for part of the purchase-money of said premises.” It negatives specifically all of the pretenses in the words in which they are laid, and avers that “ there was then and there another mortgage upon said premises to secure the payment of $5,250, dated the sixth day of May, 1859, executed and delivered by one William M. Moulton to one Truman Luce, and which said mortgage was then and there the first mortgage upon the aforesaid premises, and was the first and prior lien and incumbrance thereon. It then alleges that the prisoner knew of the existence, &c., of the mortgage of Moulton to Luce, and that his pretenses were false.
The prisoner was acquitted under the first count, and convicted under the second count,
I will examine the exceptions in the order in which they occur. The district attorney inquired of Carey,- the dupe, whether he relied on the representations of the prisoner. This was objected to by the prisoner, on the ground that it called for the secret mental emotions of the witness. The court overruled the objection, and the prisoner excepted.
This was a material fact to be established by the public prosecutor, and certainly no one could speak to it better than Carey. The fact was sought after, and not the opinion of the witness. (People v. Herrick, 13 Wend. R., 87.)
The district attorney offered to prove that while at Luce’s house, at the time of the conveyance of the farm to Moulton, and the execution of the mortgage for the purchase-money by Moulton to Luce, Moulton, in the presence of the prisoner, told Luce that he need not be in a hurry to get his mortgage recorded; that in the course of a week Moulton would call upon Luce, and they would go together to the clerk’s office and have the deed and mortgage recorded. The evidence was objected to as immaterial and irrelevant This objection was properly overruled. It, in connection with the conduct *165and acts of the prisoner, had an important bearing upon the intent of the prisoner to cheat and defraud, at the time he made the representations to Carey alleged in the indictment. It tended to show not only an intent, but a conspiracy with Moulton to cheat1 any one they could.
The next exception is to the charge “ that under the circumstances of this case such a representation is a pretense within our statute.”
This exception presents the question, whether it is an offense within our statute against false pretenses to effect a sale of a mortgage on real estate by falsely, willfully and designedly representing and pretending, with intent to cheat and defraud, that it is the first lien or mortgage upon the mortgaged premises, and thereby obtain money, &c., from the purchaser.
If this be not so, I have entirely failed to understand the statute. I am aware that in construing this statute there is a seeming conflict between some of the cases, at least in their dicta. This has chiefly arisen, I think, from not considering whether the case cited was upon an indictment under the statute, or upon one for a cheat at common law.
A cheat or fraud, to be a criminal offense at the common law, must be such a fraud as affects the public, and against which common prudence' cannot guard, and must indicate a general intent to defraud.
But the statutory offense of which the prisoner was convicted, is complete when one is induced to put his signature to a written instrument, or to part with his property, by a false pretense or representation as to an existing fact, willfully and designedly made for the purpose of obtaining such signature or property, with the intent to cheat or defraud him; and it is not necessary that the pretense or representation should be such that common, prudence or ordinary care could not have guarded against it, or that it should be accompanied by any “ artful contrivance,” or that the mind of the dupe should be tempted to belief by “ an artfully contrived story.” It is sufficient if it be such (and such it must be), that, if true, it would naturally, and, according to the motives which in the affairs *166of life influence the honest mind, directly lead to the result alleged. All men are not equally prudent or cautious, and the statute was passed for the protection of the weaker and more credulous and unsuspecting part of mankind. If, therefore, an assertion of the existence of such a fact be falsely, ‘willfully and designedly made to induce another to part with his property with intent to cheat him, and the assertion accomplishes the object for which it was made, the offense under the statute is complete.
Two of the earliest cases reported in this State went upon this distinction. The one was an indictment for a cheat at common law; the other, an indictment under the statute. (The People v. Babcock, 7 Johns. R., 201; The People v. Johnson, 12 Johns. R., 292.)
In McQueen v. Wickham(10 Adol. & Ellis, 34; 37 Eng. Com. ■Law, 29), Lord Denman, in answer to the assertion that the 'device must be such as to impose upon a man of ordinary caution, said: “ I never could see why that should be. Suppose a m§n has just art enough to impose upon a very simple person and defraud him, how is it to be determined whether the degree of fraud is such as shall amount to a misdemeanor ? Who is to give the measure ? There are, indeed, cases where •the pretense is so very foolish that it is difficult to say that an imposition is practiced; but still, who is to give the measure ?”
The plain answer is, that the jury are to give the measure. It is for them to say whether the prosecutor relied upon, was deceived by, and’ parted with his property upon the strength of the pretenses used. Any other construction of the statute would defeat the very object of its enactment, by leaving the weak and confiding. at the mercy of the fraudulent and designing.
In the language of Mr. Greaves, in a note to Russ, on Cr. (vol. 2, p. 289), “ as in robbery, it would be absurd to lay down any rulé which definéd the force necessary to constitute a robbery, with reference to the ordinary strength of mankind; so, in false pretenses, it would be equally absurd to establish a rule with reference to the ordinary capacity of mankind.”
*167The character and nature of the pretenses, and how calculated they were to deceive the prosecutor, the prosecutor’s habits and mental capacity are all proper to be considered by the jury in determining whether the prosecutor was deceived by them, and whether they were the operative cause of his parting with his property. An inexperienced youth or a feeble old man might be induced to part with his property by false pretenses, particularly if made by a person in whom he placed mistaken confidence, which would not engage the attention of a man of ordinary sagacity and prudence, and which a sharp and experienced man would see through at a glance. Which stands most in need of the protection of the law ? and is not the law made for the weak ? Take two men of “ common prudence and sagacity,” and the one is duped by that which would have obtained no credit from the other, and they each wonder at the credulity of the other.
It was contended, on the argument by the counsel for the prisoner, that the cases of The People, v. Williams (4 Hill R., 9), and The People v. Stetson (4 Barb. R., 151), fully sustain him in his position. Some of the expressions in the opinions delivered in those cases, detached from the case, might seem to do so. Those cases were correctly decided. The prosecutor in each of them was a party to a highly immoral and criminal act, and that is the ground upon which those cases stand.
But I will pursue this discussion no farther, but content myself by declaring my entire concurrence in the construction given to the statute under consideration by Chancellor Walworth, in the able opinion delivered by him in The People v. Haynes (14 Wend. R., 546).
In order to hold the case at bar to be within the statute, it is not necessary to give to the statute the scope and effect to which I have just declared its true construction entitles it.
We are of the opinion that the pretense laid in the second count of the indictment, and submitted^ to the jury, is within the statute, and that the exception is not well taken. The judge instructed the jury that the mortgage from Moulton to Luce was, and ever had been, a prior lien upon the Kidder *168farm over the mortgage from Gross to Moulton. He submitted to the jury to determine whether the prisoner, during the negotiation of the sale to Carey of the bond and mortgage made by Cross to Moulton, represented to Carey that that mortgage was the only mortgage, lien or incumbrance upon the Kidder farm, or that there was no other mortgage, lien or incumbrance thereon; whether Carey relied upon and was duped by the representation; whether the representation was made with a knowledge on the part of the prisoner that it was false and with intent to defraud; and instructed them, if they should find all these facts against the prisoner, that, under the circumstances of this case, such representation was a pretense within our statute. The only part of the charge excepted to was, “ that, under the circumstances of this case, such a representation is a pretense within our statute.”
We are also of the opinion that the exceptions to his refusals to charge as firstly and thirdly requested, are not well taken.
We are also of the opinion that the éxception to the refusal to charge as secondly requested is not well taken. There was nothing in the case to call for it. Certainly Carey did not owe to the prisoner the duty to go to the clerk’s office and examine the records. Nor did (to use what seems to be a favorite expression) “ common prudence” suggest that he should go ; for the prisoner, by the search certified by the county clerk, had satisfied “ common prudence” that nothing would be found there. There were no means at hand for detecting the false representation. But it seems to me to come with an ill grace from the prisoner, to say, you placed too much reliance upon my statements; if you had spent your time or money in investigating 'them, you might have discovered that they were false.
The next exception is to the refusal to charge as fifthly requested. The 15th request, also, will be considered here.
I think the jury would have been warranted in finding that the testimony was not in substance as it was assumed to be by the prisoner’s counsel in his fifth request.
Carey testified that he had had an interview with the pris*169Oner previous to the one pointed at by the 5th and 15th requests to charge. At the first interview, the prisoner offered to sell him the mortgage of Cross to Moulton, and told him it “ was a good mortgage upon a farm in Darien of one hundred and eighty-six acres, which was free from incumbrances, except this (the Cross) mortgage; that there were no other incumbrances upon it but this mortgage; that it was the best kind of mortgage, a first class mortgage.” Carey did not examine the county clerk’s certified search at that time, but before the next interview with the prisoner he did, and found the Kidder mortgage upon it, and called prisoner’s attention to it. Prisoner said “ the Kidder mortgage was paid; he would get it discharged, and when it was discharged the land would be clear.” It is sufficient if the pretense be proved in substance and in effect. The very words need not be used, and the pretense may be proved by the conduct and acts of the prisoner, in connection with his statements.
The jury would have been warranted in finding that, oh the occasion alluded to, the representation of the prisoner, in substance and effect, was: there is no mortgage or incumbrance on the land other than the Cross mortgage; the Kidder mortgage, which appears upon the search, is no incumbrance in fact; it is paid, and when it is discharged the land will be also clear upon the record. So claim is anywhere made that the Kidder mortgage was not in fact paid. We think it would have been error to have charged as fifthly and fifteenthly requested.
The exceptions to the refusals to charge as seventhly and eighthly requested, are not well taken. • The signature of Carey .to the check was obtained in the city of Buffalo. Our statute makes it an offense to obtain “ the signature of any person to any written instrument ” by false pretenses. The check was an instrument within the statute. (People v. Galloway, 17 Wend. R., 540.) It is possible that the prisoner could have been indicted and tried in Genesee county, for obtaining the money by means of the check. (People v. Herrick, 13 Wend. R., 87.) But the statutory offense of obtaining the signature of Carey *170to the cheek, was complete in Buffalo, and the prisoner could not, by persevering in his fraud to a fuller consummation of it, bar the offense committed by obtaining the signature. (People v. Genung. 11 Wend, R., 18 ; Commonwealth v. Wilgus, 4 Pick. R., 177.) There was no merger, for even if he could have been tried for obtaining the money upon the check, the offenses in the law are of the same degree. It is not material where the pretenses were made, the obtaining the signature or property by means of them, with intent to cheat or defraud, completes the crime, and determines the plape of trial.
The judge properly refused to charge as tenthly and eleventhly requested. For it is not essential, to this offense under the statute, that actual loss or injury should be sustained. (People v. Genung, supra.) The counsel says that the verdict of not guilty on the first count, and guilty on the second, is a felo de se. We are not able to see any difficulty or embarrassment in the verdict. The prisoner was put upon his trial for but one offense; and in such case, where there are several counts, it is competent for the jury to say under which count they convict, and to dispose of the other counts by acquitting upon them. The prisoner could not have been convicted under the first count, for obtaining the money through or by means of the check, for the money was obtained at Batavia, without the territorial jurisdiction of this court. He could not have been convicted under the first count, for obtaining the signature of Carey to the check, for he was not in that count charged with that offense. The charge was of obtaining Carey’s written check upon the Bank-of Genesee for $2,000, the said check being the personal property and valuable thing of said Carey.
It may be questionable whether the check was the personal property or valuable thing of Carey within the statute; but be that as it may, the prisoner could be convicted of But one offense, and so is the verdict.
Proceedings affirmed.