
    The State of Ohio v. Mutchler.
    
      Indictment under Section 13104, General Code — For obtaining money or property by false pretense — Must allege intent to defraud, etc. — Criminal lam.
    
    An indictment under Section 13104, General Code, for obtaining money or property by false pretense, must allege that the money or property was obtained with intent to defraud, as well as that it was obtained by false pretense. Intention to defraud is made an essential element of such offense by the section referred to.
    (No. 13884
    Decided December 19, 1912.)
    Error to the Circuit Court of Franklin county.
    Defendant in error was convicted in the common pleas of Franklin county on an indictment for obtaining property b)^ false pretenses. The judgment of the common pleas court was reversed by the circuit court, on the ground that the indictment was insufficient, and this proceeding in error is brought to reverse the judgment of the circuit court.
    Pertinent parts of the indictment are as follows:
    '‘The jurors of the grand' jury of the State of Ohio, duly elected, impaneled, sworn and charged to inquire of crimes and offenses committed within the body of Franklin county, in the State of Ohio, in the name and by the authority of the State of Ohio, upon their oaths, do find and present that Finley H. Mutchler, late of said county, on or about the twentieth day of February, in the year of our Lord one thousand nine hundred and eleven, within the county of Franklin aforesaid, the said Finley H. Mutchler represented. to one Joseph Wild that he, the said Finley H. Mutchler, was then and there the president of a certain corporation known as The Moxahala Brick Company; that the said Finley FI. Mutchler did then and there unlawfully and falsely pretend, with intent to defraud, to the said Joseph Wild, that the said, The Moxahala Brick Company, a corporation as aforesaid, was then and there the owner in fee simple of a certain five-acre tract of land near the town of Moxahala, in the State of Ohio; that upon said five-acre tract of land, the said The Moxahala Brick Company had then and there certain buildings, sheds, machinery and equipment for the manufacture of brick, and that said buildings, sheds, machinery and equipment were then and there the property of and belonging to the said The Moxahala Brick Company; that the said The Moxahala Brick Company was then and there in possession and control of one hundred and eighty-six acres of land adjoining said five-acre tract, and that the said The Moxahala Brick Company held, owned and controlled said one hundred and eighty-six acres of land by virtue of certain leases, and that the said one hundred and eighty-six-acre tract of land was held by said The Moxahala Brick Company under said leases for a term of ninety-nine years; that all of said lands were then and there brick-clay producing lands; that the said The Moxahala Brick Company was then and there organized for the purpose of manufacturing various kinds of brick, and that the said The Moxahala Brick Company had then and there in its treasury, to be used for the purpose of equipping and operating a brick plant, the sum of about eight thousand dollars ($8,000) in cash money; that the said The Moxahala Brick Company had then sold six million brick at a profit of four dollars per thousand; that the said The Moxahala Brick Company was then and there in need of a manager, and that it, the said The Moxahala Brick Company, would pay the said manager the sum of one hundred and twenty-five dollars ($125) per month as a salary for his services as manager; that the said The Moxahala Brick Company would require its said manager to invest in the capital stock of the said The Moxahala Brick Company a sum of at least one thousand dollars ($1,000); by which said false pretenses the said Finley FI. Mutchler did then and there obtain from the said Joseph Wild a certain draft for the payment of money, which said certain draft was then and there of the amount and value of one thousand dollars and of the personal property of the said Joseph Wild.”
    
    
      Messrs. Turner, King & Ballard, for plaintiff in error.
    
      Messrs. Belcher & Connor and Mr. F. F. D. Albery, for defendant in error.
   By .the Court :

This indictment is founded on Section, 13104, General Code, which reads as follows:

“Section 13104. Whoever, by false pretense and with intent to defraud, obtains anything of value or procures' the signature o£ another as maker, indorser or guarantor to a bond, bill, receipt, promissory note, draft, check, or other evidence of indebtedness or whoever sells, barters or disposes of a bond, bill, receipt, promissory note, draft or check or offers so to do, knowing the signature of the maker, indorser or guarantor thereof, to have been obtained by false pretense, if the value of the property or instrument so procured, sold, bartered or disposed of, or offered to be sold, bartered or disposed of, is thirty-five dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than three years, or, if less than that sum, shall be fined not less than ten dollars nor more than one hundred dollars or imprisoned not less than ten days nor more than sixty days, or both.”

Attention to the language, and the punctuation, of this section, will disclose that it was the manifest intention of the legislature to enact that the intent to defraud shall be an essential element of the offense. “Whoever, by false pretense and with intent to defraud, obtains anything of value,” etc.

An indictment under this section should set forth that the property or money was obtained with intent to defraud, as well as, that it was obtained by false pretense.

Where a criminal statute makes a certain intent an essential element of an offense, that intent must be averred directly and specifically in an indictment under such statute by proper affirmative averment. Drake v. State, 19 Ohio St., 211; Kennedy v. State, 34 Ohio St., 310-316; Coblentz v. State, 84 Ohio St., 235.

The allegation of the instrument in question, is as follows: “By which said false pretenses the said Finley H. Mutchler did then and there obtain from the said Joseph Wild a certain draft for the payment of money, which said certain draft was then and there of the amount and value of $1,000 and of the personal property of the said Joseph Wild.” There is no averment that the property was obtained with intent to defraud. In as much as the legislature has plainly provided that the intent to defraud shall constitute one of the essential elements of the crime, we are forced to hold, that the indictment in question in this case, does not meet the requirements of well settled rules, or secure to the defendant the constitutional safeguard of the right to demand the nature and cause of the charge against him, so as to directly and specifically advise him of what he must prepare to meet. The judgment of the circuit court will be affirmed.

Judgment affirmed.

Davis, C. J., Johnson, Donahue and O’Hara, JJ., concur.

Shauck, J., not participating.  