delivered the opinion of the court.
The contentions of counsel for plaintiff are as follows :
1. That the indictment is bad in not averring that the chattel mortgage was a valid lien.
2. There is a variance between the description in the indictment of the property averred to have been purchased by the prosecuting witness, Mrs. Moran, and the proof.
3. Mo payee of the notes, payment of which the mortgage purports to secure, is mentioned in the mortgage.
4. The mortgage was not valid as to Keyes or any person subsequént to Simon.
5. The falsity of the alleged representation of the receipts of the restaurant business was not sufficiently proven.
6. A person of ordinary prudence would not have been deceived by the representation that the property was free from incumbrances.
The averment in the indictment is :
“ Whereas, in truth and in fact, as he,.the said Thomas P. Keyes, then, well knew, the said chattels were not then and there clear from all liens and incumbrances, but that the Vienna Model Bakery, a corporation organized and existing under and by virtue of the laws of the State of Illinois, then and there had and held a certain chattel mortgage on said chattels, to secure the sum of two hundred dollars in money,” etc.
This averment is certainly a' sufficient basis for proof of a valid chattel mortgage owned and held by the Vienna Model Baker. To aver that the mortgage was valid, would be to aver a legal conclusion, which is not in accordance with the rules of pleading, either civil or criminal. It is not contended that the chattel mortgage in evidence was not valid when executed. We can not sustain plaintiff’s second contention. Most, if not all the chattels mentioned in the indictment are described in the mortgage. There are some slight differences between the indictment and the mortgage in the names of some articles, both referring, evidently, to the same articles. The third contention is untenable. The payee of the notes is substantially stated in the mortgage. The Vienna Model Bakery is the mortgagee, and the language of the mortgage is: “ Provided, nevertheless, that if the said mortgagor, his executors or administrators, shall well and truly pay unto said mortgagee, or its assigns, the sum of two hundred dollars, evidenced by his- eight promissory notes of even date herewith,” etc. This language we think makes it sufficiently clear that the Vienna Model .Bakery was the holder and owner of the notes. The mortgage is not abstracted, and therefore we have been compelled to inspect the written transcript. The fourth contention of counsel is that there is evidence tending to show the consent of Reicherdt, the manager of' the Vienna Model Bakery, to the sale of the mortgaged property by Simon to Walker, and that he knew of the sale by Walker to Golding, and therefore the mortgage was invalid or ineffective as to plaintiff in error, citing Brandt v. Daniels, 4o 111. 453. We do not regard that case in point. In that case the purchaser of the mortgaged property, who, by the decision of the court, was protected against a prior mortgage, purchased without notice of the mortgage, and there were circumstances which warranted the court in holding that the mortgagee had waived his right under the mortgage. In the present case it affirmatively appears that Keyes knew of the mortgage and promised to pay it, and there is nothing indicating waiver by the mortgagee. Reicherdt, the bakery company’s manager, testified that Keyes told him that he, Keyes, would settle the mortgage matter with him just as soon as he could get rid of Mrs. Moran. This evidence is uncontradicted. It is apparent from the record, which is not as fully abstracted as it should be, that about the time Mrs. Moran quit the restaurant, there was an attempt made by the Vienna Model Bakery to foreclose the mortgage. It is contended that the evidence of Mrs. Moran is insufficient to warrant the finding that the representations of plaintiff in error as to the receipts of the restaurant business prior to February 21, 1900, were false. Mrs. Moran’s testimony on the subject is not fully abstracted. Her testimony as to receipts after she took charge of the restaurant was as follows: February, 1900, 21st, $9.15; 22d, $13.10; 23d, $9.65; 24th, $10; 26th, $12.10; 27th, $7.45; 28th, $8; March, 1900, 1st, $8.20; 2d, $6.95; 3d, $5.40. This evidence was not objected to, and it is uncontradicted. It was for the court to decide as to the credibility of the witness, Mrs. Moran, who testified that Keyes told her that the restaurant, before and at the time of her purchase, was taking in between $22 and $25 per day, and that afterward, the receipts were as above stated. Assuming the evidence to be true, we think it sufficient to warrant the conclusion that the receipts prior to and about the time of Mrs. Moran’s purchase were not as represented by Keyes. It was not in Mrs. Moran’s power to prove directly what the actual daily receipts of the business were before she purchased; but it must be presumed that plaintiff in error, who had been conducting the business, knew and could have proved what they were. Tet he introduced no evidence bn that question, or at all, but permitted the cause to go to the court for decision solely on the evidence for the people. But even though the evidence as to the falsity of the representations in respect to the receipts of the business should be deemed insufficient, the conviction can be sustained on the evidence of the falsity of the representation that the property was free from incumbrance. Lastly, it is contended that the conviction can not be sustained, because the prosecuting witness, by the exercise of reasonable caution, might have protected herself; that she should have examined the record. We are of opinion that this contention can not be sustained; that plaintiff in error can not defend on the ground that had the prosecuting witness examined the public records, she would have discovered that he was lying. Thomas v. The People, 113 Ill. 531; State v. Hill, 72 Me. 238.
In 2 Bishop’s Hew Grim. Law, 8th Ed., Sec. 464, the author writes:
“ If the prosecutor believed the pretense, and parted with his property relying on it, there is no need he should have acted therein with ordinary care and caution. This is plainly the just doctrine, though cases may be found in the books hardly sustaining it.”
In note 4 to the section cited, the author quotes the following from an opinion of Erie, J., in Temple and Mew’s Grown Cases, 279 :
“ It was once thought that the law was only for the protection of the strong and prudent. That notion has ceased to prevail.” • •
See, also, 2 Wharton’s Grim. Law, 9th Ed., Sec. 1188, in which the following occurs:
“It is submitted, however, that whether the prosecutor Lad the means of detection at hand, or whether the pie-tenses were of such a character as to impose upon him, are questions of fact to be left to the jury, as they must necessarily vary with- the particular, case". - If fraudulent and false pretenses were used, and goods obtained by them, the prosecutor’s capacity and opportunities must be considered in determining his culpability. It must also be remembered that the statute assumes some defect in caution, for, if there were perfect caution, no false pretenses could take effect.” The section concludes thus: “ The simple and credulous are as much under the protection of the law as are the astute.”
We think the views expressed by the authors referred to, logical, just, and in harmony with the letter and spirit of the statute.
The judgment will be affirmed.