
    Kennedy v. The State.
    1. An indictment contains the averment that an order issued by the county auditor on the county treasurer, in favor of A., was presented to the' treasurer by B., and that by reason of B.’s false pretense that the order was properly issued on a valid claim, and that he (B.) was authorized to receive payment, the treasurer paid the order by delivering to B. a check. Held, 1. That this is not a sufficient averment, under the crimes act, chapter 11, section 7, first clause (74 Ohio L. 289), that B. obtained' the cheek by false pretenses. 2. The alleged facts, coupled with the-further averment that by said false pretenses B. procured the treasurer’s-signature to the check, as maker, with intent to defraud, does not constitute the offense of procuring another’s signature by false pretense,, within the meaning of the second clause of the section.
    2. Where B., a county auditor, fraudulently issued an order on the county treasurer in favor of A., and received payment thereof from the treasurer, on the false pretense that he was authorized by A. to do so, while-in fact, as he well knew, A. had no claim against the county, had never' presented any such claim, and had never given B. authority to issue the order or receive payment, this does not constitute an-offense under chapter 6, section 18, chapter 8, section 39, or chapter 11, section 6, of the-crimes act (74 Ohio L. 240).
    Error to the Court of Common Pleas of Trumbull county.
    At the May term, 1878, of said court, the plaintiff in-error was convicted, on his plea of guilty, and sentenced to the penitentiary, on an indictment which, omitting caption and conclusion, is as follows: The grand jurors, “in the name and by the authority of the State of Ohio, on. their oaths and " affirmations, do find and present, that' George B. Kennedy, late of the county of Trumbull aforesaid, on the twenty-eighth day of July, in the year of our Lord one thousand eight hundred and seventy-seven, at the-county of Trumbull aforesaid, unlawfully did falsely pretend to one Alonzo A. House, who was then treasurer of said county of Trumbull, that the said county of Trumbull was indebted to H. C. White in the sum of two hundred: dollars; and the said George B. Kennedy, who was then. auditor of said county of Trumbull, did draw, make out, and present to said Alonzo A. House for payment, a false and fraudulent order for the sum of two hundred dollars, and did then and there and thereby falsely pretend that an indebtedness existed in favor of H. 0. White and against the said county of Trumbull, and that the said George B. Kennedy had been requested, instructed, and authorized to draw, make out, and present for payment to the treasurer of said county of Trumbull, and receive payment upon, said false and fraudulent order. Said false and fraudulent order is of the purport and value following, to wit:
    “ ‘ Auditor’s office, Trumbull county, Ohio, Warren, July 28, 1877. Treasurer of Trumbull county: Pay to II. C. White, or bearer, two hundred dollars from the bridge fund, and charge the county. Geo. B. Kennedy, county auditor: ’ That thereupon, by reason of said false pretenses so made by said George B. Kennedy, on the said twenty-eighth day of July, A. d. 1877, the said Alonzo A. House paid said order by delivering to said George B. Kennedy a check for two hundred dollars drawn on the Trumbull National Bank of Warren, and the said Alonzo A. House did then and there stamp upon said order the words and figures following, to wit: ‘Paid July 28, 1877, treasurer’s office, Trumbull county, Warren, Ohio.’ By which said false pretenses the said George B. Kennedy then and there unlawfully did procure from the said Alonzo A. House, treasurer of said county of Trumbull, the signature of A. A. House, as maker, to a check drawn on the Trumbull National Bank of Warren, Ohio, of the value of two hundred dollars, and that said check was paid on said 28th day of July, a. D. 1877.' Said check is of the purport and value following, to wit: ‘Warren, Ohio, July 28,1877. Trumbull National Bank of Warren: Pay to H. 0. White, or order, two hundred dollars. A. A. House.’ Said check is indorsed ‘Henry 0. White,’ and stamped with the words and figures following, to wit: ‘Paid July 28, 1877, Trumbull National Bank, Warren, Ohio,’ with the intent, then and there, and thereby to defraud: whereas, in truth and. in fact, the said county .of'Trumbull was not indebted to said H. C. White in the sum of-two hundred dollars, or iu any sum whatever; that he, the said H. C. White, presented no claim or account against the said county of Trumbull, nor had he, the said II. C. White, any claim whatever against the said county of Trumbull; that the said George B. Kennedy was not instructed, requested, or authorized to draw, make out or present’ for payment, or to. receive payment by check or otherwise, of said false and fraudulent order.aforesaid; and the said George B. Kennedy, at the time he so falsely pretended as. aforesaid, well knew the said false pretenses to .be. false.”
    A reversal is sought on" the ground that no crime is charged in the indictment.
    The crimes act of 1877 (74 Ohio L. 240), contains the following provisions:
    Chapter 6, section 13. “ A . . . county auditor, . . . who, by color of, or in the execution of, his office, willfully or corruptly injures, defrauds, or oppresses any person, or attempts to defraud, injure, or oppress any person, shall be fined not more than two hundred dollars.”
    Chapter 8, section 39. “A county auditor who . . . willfully fails to perform any . -. . duty required of him by law, shall be fined in any sum not more than two thousand dollars, and. shall forfeit his office.”
    Chapter 11, section 6. “Whoever, knowing the same to be false or fraudulent, makes out or presents for payment, or certifies as correct, to the . . . auditor ... of any county, . .' . any claim, bill, note, bond, account, payroll, or other evidence of indebtedness, false or fraudulent, in whole or in part, for the purpose of procuring the allowance of the same, or an order for the payment thereof out of the treasury of said . . . county; . . . and whoever, knowing the same to be false and fraudulent, receives payment of any suck claim, account, bill, note, bond, payroll, voucher, or other evidence of indebtedness, from the treasurer of . . . any county, . . . shall, if such evidence of indebtedness so made out and presented, or certiffed, or of which, payment is received, is false or fraudulent to the amount of thirty-five dollars or more, be imprisoned in the penitentiary not more than ten years nor less than one year, or, if false or fraudulent to an amount less than that sum, be fined not more than two hundred, dollars, or imprisoned not more than thirty days, or both.”
    Chapter 11, section 7. “ Whoever, by any false pretenses, with intent to defraud, obtains from any person any thing ■of value, or procures the signature of any person, as maker, indorser, or guarrantor thereof, to any bill, bond, receipt, promissory note, draft, check, or any other evidence of indebtedness, shall, if the value of the property, or. instrument procured to be signed, is thirty-five dollars or more, be imprisoned in the penitentiary not more than three years nor less than one year, or, if the value is less than that sum,.be fined not more than one hundred nor less than ten dollars, or imprisoned not more than sixty nor less than ten days, or both.”
    ' Hutchins § 1'ultle, for plaintiff in error.. •
    . Isaiah Pillars, attorney-general, for the state.
   Okey, J.

Where no objection is taken by motion ta •quash or by demurrer, the court on error, based on the insufficiency of the indictment, will only inquire whether the facts averred constitute an offense punishable by statute.

Chapter 8, section 39, is evidently a substitute for the first clause of the 20th section of the act of 1870 (67 Ohio B. 106), and hence the clause is repealed thereby. Lehman v. McBride, 15 Ohio St. 573. The remaining part of section 20 falls, in the revision of the laws, under another title,, which could not be submitted for re-enactment at tbp session, ■of 1877, and that is the reason there was no express repeal ■of the section.

. Section 12, of the act of 1831 (S. & C.. 426-429), which, provided for the punishment of obtaining goods by falso pretenses, continued to be a part of that act, though amended, and re-enacted in 1873 (70 Ohio L. 39), and 1877 (74 Ohio L. 41.) While the latter re-enactment has not been in terms repealed, the repeal of the original act by the crimes act (74 Ohio L. 297, par. 22), and the enlargement and re-enactment,, in the crimes act (74 Ohio L. 289), of the provisions of the original section 12, operated as such repeal. State v. Bell, ante, 194.

The statement that the construction of the above men- , tioned sections (20 'and 12) is involved in the inquiry is, therefore, erroneous. The penal provisions which we suppose to be involved in the inquiry, are set forth in the statement of the case, and we will now consider whether the indictment can be maintained under either of them.

1. No offense is charged under chapter 6, section 13. The misdemeanor described in that provision is oppression in office, punishable by fine only.

■2. No offense is charged under chapter 8, section 39. The misdemeanor made punishable' in that provision by fine is non-feasance, and not malfeasance, as charged in this-indictment.

3. No offense is charged under chapter 11, section 6. The crime of receiving “ payment of any such claim,” has-no reference to false orders issued by the auditor, but to-the fraudulent instruments mentioned in the preceding part of the section.

4. No offense is charged under the first clause of chapter-11, section 7. In a prosecution under that clause against one who “ by false pretense, with intent to defraud, obtains from any person anything of value,” it is essential to-the validity of the indictment that it contain an averment,, in terms, that the accused did obtain from another, a thing-of value, as, for instance, a check; or, in place of the word obtain, a word or words of equivalent or larger meaning-may be employed, but the word contained in the statute must be clearly embraced in any such substitute. Poage v. The State, 3 Ohio St. 229; 1 Bishop’s Crim. Pro. § 612, note.

The charge that, by reason of the false pretense, “ House-paid said order by delivering to said George B. Kennedy a. check for two hundred dollars,” is argumentative; but giving to it a construction which is perhaps permissible, it. amounts to an averment of a delivery of the check by House to Kennedy, by reason of the false pretense. House is made the actor. He delivers the check to Kennedy in consequence, directly or indirectly, of something said by Kennedy, who may not have desired a check, or intended to get possession of one. The averment, though entirely proper, (2 Whart. Cr. L. § 2162), is in no sense the equivalent of, or a substitute for, the averment that Kennedy did obtain the check by false pretense. The crime defined in the statute is not that of making a false pretense, but the provision is directed against one who obtains something, or, in other words, one who gets possession of something purposely, by effort, that is, by false pretense. Schleisinger v. The State, 11 Ohio St. 669; Norris v. The State, 25 Ohio St. 217 ; 2 Whart Cr. L. § 2162. Besides, what is even more-obvious, the offense defined by the statute is obtaining the thing mentioned, by means of the false pretense, “ with intent to defraud.” Reading this as an indictment under the-first clause of the section, we find the allegation to be that House paid Kennedy an order by delivering to him a check, with intent to defraud. This, of course, involves an absurdity, and shows conclusively, what abundantly appears-from the whole indictment, that the pleader did not attempt to charge the offense of obtaining the cheek by false pretense, but the offense of procuring a signature, defined in the second clause of the section.

5. Nor is any offense charged under the second clause of the section. The offense under that clause is directed, against one who, “ wnth intent to defraud, . . . procured the signature of any person, as maker, indorser or guarantor thereof, to any bill, bond, receipt, promissory-note, draft, check, or any other evidence of indebtedness.”' The false pretense was that the order was issued on a valid claim, and that he (Kennedy) was authorized to receive payment thereof. The averment is that by reason of the false pretense, House paid the order to Kennedy. What Kennedy applied to House for was payment of the order. The representation he made was that he had authority to receive such payment. Neither the application to House nor the representations to him had relation to a check; much less to a signature to a check. There is, therefore, nothing set forth upon which to ground the averment that by the false pretenses, Kennedy did procure of House his ■signature to the check, with intent to defraud. The signature to the check was an incident of, and not the end in fact sought, or to which the pretenses related, and hence the offense charged is not the one inhibited by the statute.

The conclusion to which we are led is that the indictment charges no offense. If the indictment had contained the averment that Kennedy, by means of the false pretenses, obtained the check from House, with intent to defraud, it would have been sufficient; but it contains no •such averment.

Judgment reversed.

McIlvaine. J., dissented, on the ground that the offense •of obtaining the check by false pretenses is sufficiently •charged.  