delivered the opinion of the court, February 27th 1882.
The only question presented by this record is, whether the indictment sets forth an indictable offence. ' It contains two counts, in each of which the ¡defendant below is charged with cheating by false pretences. The particular act alleged was the procuring of the prosecutor’s endorsement of the defendant’s promissory note, and the false pretence charged consisted in his representing to the prosecutor that he would use the note so endorsed to take up and cancel another note of the same amount then about maturing, and upon which the prosecutor was liable as endorser. In other words the note was given in renewal of another note of like amount, and the indictment charges that the defendant instead of using it for this purpose, as he promised to do, procured it to be discounted, and used a portion of the proceeds for other purposes.
A false pretence, to be within the statute, must be the assertion of an existing fact, not a promise to perform some act in the future. The man who assorts that he is the owner of a house, states a fact, and one that is calculated to give him a credit. But a mere failure to keep a promise, is another and very different affair. That occurs whenever a man fails to pay his note. It is true Chief Justice Gibson doubted in Commonwealth v. Burdick, 2 Barr, at page 164, whether every naked lie by which a credit has been gained is, not a false pretence within the statute. This doubt has run i'ts course, and has long since ceased to disturb the criminal law of the state. There was nothing in Commonwealth v. Burdick, to suggest such doubt, as the defendant had wilfully misrepresented that he had a capital of $S,000 in .right of his wife, while, in all the cases cited *575therein, there was a misrepresentation as to existing facts, by means whereof a credit was obtained. The decisions upon this subject are uniform, and it would be an affectation of learning to cite the cases. Mauy of them may be found in the foot-note to Pardon.
In the case in hand, there was no assertion of an existing fact. Nor was there anything done by which even a credit was given. Tire credit had been obtained when the original note was endorsed; the present note was endorsed in lieu of and for the purpose of taking up the original; the failure to use it for such purpose was certainly a dishonest act on the part of the defendant, but we do not think it punishable under the statute'defining false pretences.
It was nrged, however, that if it was not cheating by false pretences under the statute, it was constructive larceny, and therefore -within the proviso of section 111 of the Act of 31st March I860, P. L. 410, which is as follows: “Provided, always, that if, upon the trial of any person indicted for such a misdemeanor (false pretences), it shall be proved that he obtained the property in question in such manner as to amount in law to larceny, he shall not by reason thereof, be entitled to be acquitted of such misdemeanor ; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts.”
The fourth assignment of error avers that, “ The learned court erred in not holding that the facts set forth in the indictment, and proved on the trial, showed that the defendant obtained the property in question in such manner as in law would amount to larceny, and iu not giving judgment for the commonwealth,” &e.
We do not think it necessary to discuss the line of cases cited in the able and interesting argument of the learned district-attorney, defining the distinction between the offences of cheating by false pretences, and constructive larceny. While the distinction is a nice one, it is, nevertheless, clearly defined. The difficulty upon this head is not in the law, but in the application of the law to the facts of a particular case. We are not called npon to pursue this inquiry in the present instance. It requires but a moment’s reflection to see that we could not reverse the court below upon this ground. How can we, as an appellate court, say whether it was proved upon the trial below that the defendant obtained the property in question in such manner as to amount in law to larceny, when not one word of the evidence is before us ? But it is said, the jury having convicted the defendants of the offence of cheating by false pretences, we must assume that the facts proved amounted to larceny. This does not follow. A general verdict of guilty *576upon tbe indictment is a finding only of tbe facts sufficiently jfioaded, Neither of tbe counts would sustain a charge of larceny. Tbe first count contains no averment that Horace P. Green, the prosecutor, was, or ever bad been, the owner of tbe note in question and if never tbe owner, it could not have been stolen from him. The second count was evidently intended to cover both offences, but such criminal pleading is rarely a success, and certainly is not so in this case. It contains an averment at tbe close, that tbe said note was “ then and there tbe property of tbe said Horace P. Green.” Unfortunately for this averment, tbe prior portions of the same count show tbe fact distinctly that tbe note in question was tbe note of the defendant, drawn by him in favor of tbe prosecutor, and by tbe latter endorsed for tbe accommodation of tbe defendant and banded back to him. It was, therefore, tbe property of tbe defendant and not of the prosecutor. Tbe second count contradicts itself upon tbe facts, and the finding of the jury is wholly insufficient to enable us to say tbe facts proved upon tbe trial amounted to larceny.
We are, therefore, of opinion that tbe learned judge of the court below committed no error in arresting the judgment, and bis ruling must be
Affirmed.
Sharswood, O. J., concurs in tbe affirmance, but would quash tbe writ.