(dissenting.) I dissent from that part of the opinion of the court in which it holds that the fourth prayer of the appellant for instructions to the jury was properly refused by the circuit court. In my opinion it should have been granted. The prayer referred to is as follows: ‘‘If you find from the evidence that the defendant was the holder of the coupons mentioned in the indictment, and if they did not belong to the state, but belonged to the defendant himself, or to some other person for whom he held them, he cannot be convicted for obtaining the signatures of the state debt board to an order to exchange them for state certificates, it matters not what representations he made for that purpose.”
To constitute the offense of which the appellant was accused, four things must concur : (1) There must be an intent to defraud; (2) there must be actual fraud ;. (3) false pretenses must be used for the purpose of perpetrating the fraud; and (4) the fraud must be accomplished by means of the false pretenses made use of for the purpose.”
A false representation by which one is induced to pay what he justly' owes, or perform his duty, is not a false pretense within the meaning of the statute creating the offense, because no legal injury is suffered.
In Rex v. Williams, 7 C. & P. 354, 32 Fng. C. R. R. 653, “It appeared that the prosecutor, Peter Williams, owed John Williams, the prisoner’s master, a sum of money, of which John Williams could not procure payment; and that the prisoner, in order to secure to his master the means of paying himself, had gone to prosecutor’s wife in her husband’s absence, and told her that his master had bought of her husband two sacks of malt, and had sent him to fetch them away; and that thereupon the prosecutors wife delivered the two sacks of malt to the prisoner, who carried them to his master. It further appeared that the pretense was false, and that the prisoner knew it to be false at the time he used it." Judge Coleridge, in summing up, charged the jury as follows : “ Although prima facie everyone must be taken to have intended the natural consequence of his own act, yet if, in this case, you are satisfied that the prisoner did not intend to defraud Peter Williams, but only to put it in his master's power to compel him to pay a just debt, it will be your duty to find him not guilty. It is not sufficient that the prisoner knowingly stated that which was false, and thereby obtained the malt; you must be satisfied that the prisoner at the time intended to defraud Peter Williams.”
In People v. Thomas, 3 Hill, 169, the indictment charged substantially the following facts: “Jones, having executed his negotiable note to Thomas for $28.28, dated 19th February, 1838, and payable one day after date, the latter, in March afterwards, called for payment, falsely pretending to Jones that the note had either been lost or burned up; by which false pretenses Thomas unlawfully, etc., obtained from Jones the sum of $28.28, with intent to cheat and defraud Jones ; whereas in truth, etc., the note had not been lost or burned up, all of which the said Thomas, when he made the false pretense and obtained the money, well knew,” etc. Of this indictment the court said : “ Non constat from the indictment that Jones sustained any damage by the false representation, nor that there was an intent on the part of Thomas, at the time of the representation, to work any damage. The note was due, and payment made. This was the only consequence — a thing which Jones was bound to do. A false representation, by which a man may be cheated into his duty is not within the statute.”
In People v. Getchell, 6 Mich. 496, the defendant was indicted for procuring the indorsement of the prosecutor on a promissory note by falsely pretending that a former note for the same amount and indorsed in like manner was destroyed. After proof of the facts charged, the defendant offered and the trial court refused to allow him to show that he was a partner with the prosecutor ; that the latter was bound by an agreement with him to endorse for him to an amount considerably larger than the two notes, but had refused to do so, and that the money obtained on the notes was used in their business for their joint benefit. It was held that the evidence should have been received as tending to disprove the presumption of an intent to defraud. The court said: “The object of the defense in this case, in offering the rejected evidence, was to show that there was no intent to cheat or defraud — the untruth of the pretense being admitted. A falsehood does not necessarily imply an intent to defraud, for it may be uttered to secure a- right, and, however much and severely it may be reprobated in ethics, the law does not assume to punish moral delinquencies as such. To defraud is to deprive another of a right, of property or of money, and this may be accomplished by falsehood, by withholding the right of property, or by force. ”
In Com. v. McDuffy, 126 Mass. 467, it appeared that the defendant was to build a house, and was to pay all bills for materials used in the house with money which was to be given for that purpose, from time to time, upon the presentation of the bills for the materials ; and that upon false reprsentations he obtained more money than was necessary to pay for the materials. .He was indicted for obtaining money by false pretenses. He “contended that he could not be convicted upon the indictment, because, upon the settlement at which it was alleged he made the false representations set forth, he had been allowed nothing for his services in building the house; that he was entitled to receive for his services the sum of $650 ; and that, if the sum he received in fact was not more than enough to pay him for the bills actually paid, and for his services, then he was not guilty of false pretenses, .even if he made untrue statements, because he had defrauded no one.” The court held that upon proof of these facts he was entitled to an acquittal. Com. v. Hawkins, 128 Mass. 79.
In State v. Hurst, 11 W. Va. 54, the court held that “the procuring of the payment of a just debt, already due, by false pretenses,” is not an indictable offense. It said: “It is doubtless immoral for a person by false pretenses to obtain the payment of a just debt. The end sought may be just but such an end will not, by a correct code of morals, justify the use of improper means ; but the law does not, in many instances, attempt the enforcement of good morals, and the question is, whether the use of false pretenses to obtain a claim justly due is, within the true meaning of this criminal statute, a fraud. To so construe this statute would in my judgment, consign to the penitentiary as thieves many persons who cannot be classed with common thieves, without breaking down all our ideas of distinctions in degrees of immorality. I think, therefore, that, within the true meaning of this statute, a man cannot be held guilty of procuring money by false pretenses, with intent to defraud, who has merely collected a debt, justly due him, though in making the collection he has used false pretenses.” And in Com. v. Henry, 22 Pa. St. 253, Woodward, J., said : “A false representation by which a man may be cheated into the performance of a duty is not within the statute.”
Mr. Bishop and Mr. Wharton say: ‘‘Under the statute against false pretenses, it is not indictable to induce one by the pretenses to pay what he justly owes, because he is not thereby legally injured. 1 Bishop’s New Cr. B. sec. 438; 2 lb. sec. 466; 2 Wharton, Criminal Baw (9th, 3d.), sec. 1184a, 1197.
The 'principle on which the foregoing authorities rest is not confined to cases in which a creditor has induced his debtor, by false representations, to pay a debt. It is applicable to such cases because an intent to defraud and an actual fraud committed are essential to the commission of the crime of false pretenses, and these elements were lacking in those cases. Where they are absent, the crime cannot exist. Hence in every case where the false representation is made by one for the sole purpose of inducing another to discharge a duty, and it has that effect, the crime is not committed. So where a creditor, by false representations, induces his debtor to accept one of his (debtor’s) obligations to pay money, and to execute another of more available form in lieu thereof, the same being equal in every respect, he is not guilty of the offense. Rex v. Williams, supra, is another illustration of the rule. In that case the accused procured, by falsehood, two sacks of malt, in order to secure to his master the means of collecting a debt; and yet he was acquitted of false pretenses, because in so doing he did not defraud the prosecutor.
After a diligent search, I have been able to find only one case in which this rule is denied, and that is People v. Smith, 5 Park. Cr. Rep. 490. In that case it was held that it was “no defense to a charge of obtaining money by false pretenses that the person from whom the money was obtained by the prisoner was, at the time, indebted to the prisoner to an amount equal to the sum obtained by the false representation, and that it was the intention of the prisoner ‘to apply the money to the payment of the debt.’” This decision was based, in part, on the impolicy of allowing any one the right of self-redress. This right, it is said, is allowed only in the “well known instances of self-defense, recaption or reprisals, entry on lands and tenements when another person has without any right taken possession thereof, and abatement of nuisances and in those cases only when it can be exercised without force or terror or any breach of the peace. But, if this be true, does the wrongful exercise of the power of self-redress supply any of the elements necessary to constitute false pretenses? The debtor was deprived of no right. He suffered no loss, but simply did his duty. How was he defrauded?
But it is said in People v. Smith, supra, that the collection'of debts by the employment of fraud or falsehood may lead to strife, and is pernicious in its consequences. It is true that this mode of collection is immoral, and deserves the severest condemnation ; but the law was never intended to be a complete code of morals. The fact that any act may be immoral, or evil in its consequences, does not prove that it is a public offense. Many moral delinquences may and do lead to crime and strife, but the law does not make them penal, and punish those guilty of them, for that reason. It is only when they amount to crimes that the guilty are punishable as criminals.
Again, in People v. Smith, supra, it is said that the intent of the creditor who takes money furtively out of the desk of his debtor and applies it to the payment of his debt is the same as the intent of him who obtains the money from his debtor by false pretenses for the same purpose. But, with deference to the learned judge who delivered the opinion of the court in that casé, I do not think so. In the former case the intent is to deprive the owner of his money without his knowledge or consent, and in the latter to obtain it openly, with his knowledge and consent, by deception. There is only one thing in common in both cases, and that is the intent to appropriate the money in the same manner. But, be that as it may, standing alone in either case, or in any other case, without acts there is nothing criminal in the intent. In both cases it is immoral. According to the acts which accompany it, it is a trespass, obtaining money by false pretenses, no crime, or, according to the opinion in People v. Smith, a larceny. In the latter case it is not a trespass, because the money was procured by consent; it was not obtaining money by false pretenses, because there was no intent to perpetrate a legal fraud ; and it was not a larceny, because it was procured with the knowledge and consent of the owner.
In the opinion of the court in this case it is said ; “In order to convict, it must be shown by the evidence that the defendant made these representations to the board with an actual intent to defraud the state." Why? The court say : “ The defendant may have known that the coupons which h¿ asked to exchange were clipped from unredeemed bonds, and yet intended no fraud on the state." But the court, nevertheless, held that the fourth prayer of the defendant for an instruction was properly refused. Why? Because the state of Arkansas was the party affected by the false pretenses? How does that affect the guilt of the defendant? Does it not require an actual intent to defraud the state to constitute the offense in this case? The court has said so. That is true. There must not only be an intent to defraud, but an actual fraud committed. How, then, can the fact that the state is the party affected by the false pretense change the constituent elements of the offense? There is only one statute defining the offense, and it does not have one meaning when the state is affected, and another in all other cases. But it has been said that appellant was treasurer of Arkansas at the time the offense is alleged to have been committed, and should not be allowed to hold an advantage gained in his official position by false representations. How does that affect the offense? No one ought to take an undue advantage of the state, let his position be what it may. He ought not to take such an advantage of anyone. But he, nevertheless, committed no indictable offense when he induced the state by false representations to pay its just debts in its own paper; because, if that be all he has done, he has not defrauded the state of one cent, and done no legal injury.
In his fourth prayer, the appellant asked the court to instruct the jury that he could not be convicted of the offense of which he is accused if they find that the coupons described in the indictment did not belong to the state, but to himself, or were held by him for some other person, and that he procured an order of the state board on the treasurer to exchange “ state certificates of indebtedness” for them, notwithstanding he procured the order by false representations. The certificates were for no greater amount than the coupons, and there was evidence upon which to base the instruction ; and yet this court holds that the prayer was properly refused. Why? Because, among other reasons, he undertook by false pretenses to obtain an advantage of the state by .exchanging coupons, which are receivable for one purpose, and for the payment of which no provision is made, and the collection of which he cannot enforce, for certificates which are more valuable, and receivable for many purposes. What advantage did he get? The state was not liable for any greater,amount on account of the certificates than it was on the coupons. He did not receive in the former more than the amount of the latter. Neither were at par. Both were valid, but neither could be collected by process of law. But it is said that, in procuring the certificates, he did not attempt to collect a debt. If the evidence referred to by the fourth prayer be true he did, or attempted to do so, by accepting the certificates in payment or exchange for the coupons. It was not necessary that money be received or paid in satisfaction of the coupons to constitute a collection or payment. If he was the legal holder of the coupons, he had the right to accept the certificates, if tendered, in payment of them.
The instructions given by the circuit court are defective in failing to state fully what the jury should find as to the intention of the appellant before they could lawfully convict. This defect is fully shown in the opinion of the court. Nothing need be said in this behalf, further than I have already stated.
In other respects I concur in the opinion of this court, and in reversing the judgment of the circuit court.