This case was previously reported in 140 Neb. 277, 299 N. W. 525, and is now pending on motion for rehearing.
Defendant (plaintiff in error) was charged in an information with felonious intent to cheat and defraud L. D. Ott, by pretending and representing to Ott that the defendant was the owner of a promissory note in the sum of $110.43, given by Ott to Yern M. Bottom, in payment of a life insurance premium, and further pretending that he was authorized to collect the note and entitled to receive part of the proceeds as such part owner, and that if Ott would pay the face of the note defendant would cancel and surrender the note to Ott. Relying upon these representations, Ott paid the face of the note.
*207The record discloses that on November 1, 1939, Vern M. Bottom, of Scottsbluff, Nebraska, a life insurance agent, together with Roger Brennan, the defendant, with whom he worked at times in procuring insurance business, sold to L. D. Ott an insurance policy. For payment of the first year’s premium on the policy Ott gave a promissory note, made payable to Vern M. Bottom. Bottom called “about the payment of the note,” and payment was not made. Later, the defendant called about payment of the note. Ott paid him and asked him when he would receive’ the note. The defendant said “he would send the money to Mr. Bottom and have him send the note down.” Payment was requested in two checks; defendant “wanted it” that way; “He said he wanted $50 that day; he would send the other up to Mr. Bottom.” The checks were paid out of Ott’s account in the bank. Ott requested of defendant a receipt, and one was given “as payment for note dated Nov. 1st, 1939, given to Roger Brennan and V. M. Bottom for insurance.” The note was not returned to Ott, nor a refund made.
In our previous opinion we held:
“A representation, assurance or promise made in relation to a future transaction, however false and fraudulent it may be, does not constitute an element of the offense of obtaining money, goods, chattels or real property by false pretenses.
“Reliance by the owner of property upon a promise by the accused to do something in the future does not constitute a crime under the act.”
The foregoing is a correct statement of the law, if we add, provided reliance is alone upon a false or fraudulent representation as to a future transaction, or a promise of something to be done in the future.
The question presented is the sufficiency of the evidence to sustain a conviction of the offense. While it is true that: Ott said, on cross-examination, that he relied upon the statement made by the defendant that Bottom had the note and he would secure it, and that was all he relied upon, this; statement must be considered in the light of all the evidence *208and of the immediately preceding questions and answers: Defendant said he “wanted $50 that day; he would send the other up to Mr. Bottom.” This evidence, on direct examination, is indicative of the fact that defendant represented that he had an interest in the note to the extent of $50. He went further: He gave a receipt for payment of the note, “given to Roger Brennan and V. M. Bottom for insurance,” which indicates that he had an interest in the note.
Analyzing the transaction: The defendant, by the representations made with reference to the note, obtained for himself from Ott $50. Ott received no benefit from it. There is evidence indicating a purpose on the part of defendant, in going to see Ott, to cheat and defraud him out of $50 by pretending to him that he had a right to collect the note, had the amount divided into two checks, gave a receipt for the same, and represented that he would send a part of the money to Bottom, who would send the note to Ott.
Other evidence in the record relates primarily to an accounting, as between Bottom and the defendant, and to a trade made, wherein Bottom was to have all of the commission from the sale of insurance to Ott by paying Brennan' money on another insurance contract. This evidence is purely collateral to the evidence with reference to the offense. The evidence of Ott must be considered in its entirety, to determine the effect and purpose of the representations made by defendant with reference to his interest in the note, and whether or not such representations were made and relied upon by Ott. The fact that representations as to future transactions were made and relied upon also does not dispose of the false and fraudulent representation made as to an existing fact. The following authorities are pertinent to the questions presented:
“In a prosecution for obtaining money by false pretenses the gist of the offense consists in obtaining the money of another by false pretenses, with the intent to cheat and defraud.” Ketchell v. State, 86 Neb. 324, 54 N. W. 564; reaffirmed in Thompson v. State, 112 Neb. 389, 199 N. W. 806.
“To constitute the crime of obtaining money under false *209pretenses, the pretense or pretenses relied on must relate to a past event or an existing fact.; any representation or assurance in relation to a future transaction, however false and fraudulent it may be, is not within the meaning of the statute.” Cook v. State, 71 Neb. 243, 98 N. W. 810. See, also, Mason v. State, 99 Neb. 221, 155 N. W. 895.
On the question of reliance on the represented fact, it is not necessary that there shall have been reliance solely on the pretended fact which is the basis of the prosecution. A reliance on the pretended fact, coupled with a reliance upon "other facts, does not have the effect of defeating the prosecution. Wax v. State, 43 Neb. 18, 61 N. W. 117.
On the question of reliance on pretense, Ott was asked: “Did you believe that he was the owner or part-owner of the note and entitled to collect it? A. Well, I presumed so; yes.” On cross-examination the witness was asked: “Now, Mr. Brennan when he came out there and had you give him those two checks — he told you he would secure the note — did he tell you who had it? A. He said Mr. Bottom had the note. Q. And he would secure it for you and have it returned to you? A. Yes. Q. And you relied upon that? A. I relied upon that. Q. And that is all you did rely on, is that right? A. Yes.”
It will be noted that the basic subject of these questions on cross-examination was possession of the note as distinguished from ownership.. It was artfully followed by a return, in two questions, to the general subject of reliance. The answers to these two questions may not be accepted conclusively as an intention, on the part of the witness, to negative the assumption of ownership in the defendant already expressed by the witness. For the purpose of review, where we are not permitted to weigh, but only to determine, the existence of evidence, it is the duty of this court to reject this statement with reference to reliance as an absolute negative. We are further required to hold that the meaning of these responses, along with other responses, in the light of the entire evidence, was a question for determination by the jury.
*210If we are to adopt the view that “false pretenses,” as used in the statute on which this prosecution is grounded, is dependent upon specific representations as to present or past fact and specific statement as to reliance on such represented fact, the proofs in this case should be held to be insufficient. This is neither the; language nor the purpose of the statute, and none of our decisions limits the definition to specific representation, although specific representation has been the basis of the charge in most, if not all, of our reported cases. In the light of the statute and of reason, there is as much basis for a holding that one may be just as guilty of false pretenses by acts and the use of equivocal language as by unequivocal statements.
We conclude that what defendant said and did was sufficient evidence of false pretenses, within the meaning of the statute, to justify the submission of that question, defendant’s intention, and the question of whether or not Ott relied on the pretenses, to the jury.
The verdict of the jury and judgment thereon are affirmed, and our former decision is herein vacated and set aside.
Affirmed.