
    (98 South. 861)
    No. 26366.
    STATE v. ANTOINE.
    (Jan. 7, 1924.)
    
      (Syllabus by Editorial Staff.)
    
    False pretenses <&wkey;7 (5) — Obtaining money through promise to disclose hidden treasure held not within “false pretense” statute.
    Defendant’s false and fraudulent representation that he could obtain a magic or mineral rod which would locate hidden treasure, that he would produce the magic rod within 30 days, and locate treasure, which he would divide with certain parties from whom he thereby obtained money, held not an offense within Rev. St. § ,813, defendant not having made a false statement of a past event, or of an existing fact or event.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, False Pretense.]
    Appeal from Eighteenth Judicial District Court, Parish of Lafayette; William Campbell, Judge.
    George Antoine was charged with obtaining money under false pretenses, motions to quash were sustained, and the state appeals.
    Affirmed.
    A. V. Coco, Atty. Gen., and Percy T. Ogden, Dist. Atty., of Crowley (T. S. Walm’sley, of New Orleans, and'A. J. Bordelon, of Marks-ville, of counsel),, for the State.
    
      Kennedy & Roos, of Lafayette, for appellee.
    By Division A, composed of O’NIELL, C. J., and ROGERS and BRUNOT, JJ.
   BRUNOT, J.

Two indictments were returned by tbe grand jury against tbe defendant. It is charged in both indictments that be obtained money under false pretenses. Tbe charges ar^ identical, except as to tbe amount and tbe'persons whose credulity was imposed upon. Tbe cases were consolidated for tbe purpose of trial, and a motion to quash tbe indictment was filed in each case. From a judgment maintaining tbe motions to quash, the state has appealed.

Tbe indictments charge that tbe defendant falsely and fraudulently pretended that be could obtain a magic or mineral rod which would locate, beneath tbe surface of tbe earth, hidden treasure; that be would produce tbe magic rod within 30 days; and that be would locate bidden treasures of great value, and would divide the same with Ulysse Dubon and Prosper Dubon. It is^ charged that on this representation be received $600 from Ulysse Dubon and $300 from Prosper Dubon.

Tbe defendant contends that tbe crime denounced by section 813 of tbe Revised Statutes, the section under which be is prosecuted, contemplates tbe obtaining of money or property by false representations of a past or existing condition, and that it does not embrace a promise to do something in tbe future, by means of which be fraudulently obtained tbe money or property of another.

The legal proposition presented seems to be well settled. In the case of State v. Colly, 39 La. Ann. 841, 2 South. 496, this court say:

“The offense denounced by section 813 of the Revised Statutes as construed in conformity with the common law of England (section 976 R. S.) contemplates a false statement by the accused of a past event or of an existing fact, and it excludes any representation in regard to a future transaction. Wharton, American Criminal Law, §§ 2085, 2087, 2096, 2112; Bishop on Criminal Law, vol. 2, §§ 397, 400, 401.
“Hence it follows that a promise is not a pretense, and that a promise which a man makes, and which he does not intend to keep, does not fall within the scope of the legal definition of a false: pretense.”

See, also, 23 Cent. Dig. False Pretenses, par. 12; American Digest, Second Decennial Edition, vol. 2, “False Pretenses,” p. 158, par. 7 (5); Am. & Eng. Ency. of Law, vol. 12, “False Pretenses and Cheats,” p. 810, § 11, subsec. 4 (2), and authorities under note 1; Key-Number Series of American Digest, “False Pretenses,” par. 7 (5).

In the cases: we are considering the defendant did not make a false statement of a past event or of an existing event or fact. He falsely and fraudulently promised to do a certain thing in the future, and however reprehensible bis conduct may have been it does not fall within the scope of the legal definition of a false pretense.

The judgments maintaining the motions to quash are correct, and are therefore affirmed.

O’NIELL, C. J., concurs in tbe decree.  