dissenting.
*404I cannot agree with the majority opinion. The information charges that defendant by false pretenses induced the prosecuting witness to make; that is, sign, execute and deliver to him, her promissory note in the principal sum of $1,000.00 of the value of $1,000.00 of the personal property of the prosecuting witness. The people’s evidence showed that defendant obtained the signature of the prosecuting witness to her promissory note in the sum of $1,000.00 which, after she signed it, was delivered by the maker to the "defendant and that the note was subsequently paid. This is the only evidence of value. Can the conviction be sustained under our statute, which provides:
“If any person or persons shall knowingly, and designedly by any false pretense or pretenses, obtain from another person or persons any chose in action, money, goods, wares, chattels, effects or other valuable thing whatever, with intent to cheat or defraud any such person or persons of the same, every person so offending shall be deemed a cheat, and upon conviction”, punished as provided by statute. R. S. 1908, sec. 1849.
The note which the prosecuting witness was by false pretenses procured to sign, was not a valuable thing before delivery or until delivered. Of course a promissory note is a chose in action and one may be convicted under the statute for obtaining a note by false pretenses, or convicted of larceny for stealing it, but in either case it relates to some subsisting note in the possession of the prosecuting witness and not merely to the obtaining of. a signature to a note. Had defendant obtained, by false pretenses from the prosecuting witness a subsisting note, then in her possession, it would come within the statute; but the ■note in question before delivery, while still in the possession of the maker, was not a chose in action. This defect in the statute has been corrected in England and in many of the states of the Union, by including in it the obtaining a signature to an instrument. We have no such statute and until we do, I do not think the conviction can be sustained. Moreover, there is no description of the note in the information and there was no proof of value except the prosecuting witness said she paid the note at maturity.