
    SUFFICIENCY OF INDICTMENT CHARGING FALSE PRETENSES.
    Common Pleas Court of Montgomery County.
    The State of Ohio v. George E. Williams.
    
    Decided, May 13, 1905.
    
      Criminal Law — Indictment for False Pretenses — Definition of the Crime —What-must he Averred, — Ownership—Value—Colloguiem—Power tof the Court to Supply an Omission in Its Record — Pendency of Other Indictments — Sections 7076 and 7212.
    
    1. An indictment charging false pretenses must specify: the pretenses relied on, and allege a sufficient part thereof; the intent to defraud; that the false pretense was relied on; must specify the property obtained and its ownership and value; must give the names of the persons defrauded; connect the pretense with the accomplished fraud; and negative the premises,, and allege that the defendants had knowledge of their falsity.
    
      2. Where land is involved, averments as to the date of the transaction with a description of the land are sufficient to permit the introduction of evidence, if necessary, as to the ownership of the land.
    3. It is sufficient in an indictment to state the fact of the pretense correctly. The very words used need not be stated.
    4. Defendant’s knowledge with respect to the value of the property and whether or not the value given was a mere matter of opinion are facts for a jury to determine.
    5. The control which the common pleas court has over its own orders and judgments is sufficient to permit the correction of an entry by supplying a fact, omitted from the recital through an inadvertence of the clerk.
    6. The fact the previous indictments have not been disposed of does not afford ground for the quashing of an indictment.
    
      
       Affirmed by the circuit court without report, and by the Supreme Court with report in ease of State v. Williams, decided, February 18th, 1908, reported in 77 O. S.
    
   Snediker, J.

This is an indictment for obtaining property by false pretenses, and comes before the court on a motion to quash and' a demurrer. Both were argued and submitted by agreement at the same time.

The demurrer is: “Now come the defendants and each of them and demur to the indictment because said indictment does not state facts sufficient to constitute an offense punishable by the laws of the state of Ohio.” .

The motion to quash is as follows (reads motion to quash). The section of the Revised Statutes of Ohio relating to the obtaining of -money by false pretenses is 7076, and so far as it pertains to this indictment is as follows:

“Whoever, by any false pretense, with intent to defraud, obtains from any person anything of value, * * * shall, if the value of the property is thirty-five dollars or more, be imprisoned in the penitentiary not more than three years .nor less than one year,” etc.

To constitute the crime under this section, four things must have been present:

First. There must be a false representation as to an existing fact or a past event.

Second. There must be an intent to defraud.

Third. There must be a reliance upon such fraudulent representations.

Fourth. Something of value must be obtained thereby.

And the indictment, charging such false pretenses, in addition to the formal parts, should: (1) specify the pretenses relied on and allege a sufficient part thereof; (2) charge the intent to defraud; (3) allege that the false pretenses were relied upon; (4) specify the property obtained; (5) specify the■ ownership and value of said property; (6) give the names of the parties defrauded; (?) connect the pretenses and the accomplished fraud; (8) negative the pretenses; (9) allege the defendant’s knowledge of the falsity.

The general rule as to the certainty necessary to an indictment is given in the Redmond case, 35 O. S., pp. 82-83. 'In that case Judge White in his opinion says :

“It is a rule of criminal law based upon sound principles, that every indictment should contain a complete description of the offense' charged. It should set forth the facts constituting the offense, so that the accused may have notice of what he is to meet, and so that the court, applying the law to the facts charged against him, may see that a crime has been committed.
“As to the degree of eertáinty which is requisite, the indictment must state the facts of the crime with as much certainty as the nature of the case will admit. In a criminal charge, in the language of Lord Mansfield, there is no latitude of intention to include anything more than is charged; the charge must be explicit enough to support itself.
“The want of a direct allegation of anything material in the description of the substance, nature or manner of the crime, can not be supplied by any intendment or implication whatsoever. ’ ’

With this rule in mind,'let us now read this indictment (reads indictment).

Speaking first to the demurrer, the first objection of counsel for the defense is that “it is not alleged in the indictment that any one of the defendants was the owner of real estate or ■ of the notes in question; that no owner is named, and that, therefore, the defendants are not properly informed as to the land and notes, by the indictment.”

The property of which the ownership is to be particularly alleged, under the statute, is the property unlawfully obtained by the false pretenses, and that is done here in the following statement:

“By which said false pretenses, in the manner aforesaid, the said George E. Williams, with the intent to defraud the said William M. Byers, then and there unlawfully did obtain from the said William M. Byers the goods and chattels hereinbefore mentioned and described as follows, to-wit:” Then follows’the description of the property alleged to have been unlawfully obtained. The real estate and the notes are important as the medium through which defendants operated. The charge in this regard is, we think, sufficiently explicit if it identifies in any way, either by description, ownership or some othe^ particular quality. '

The question’is, does the defendant' know what the--state -is talking about? Does he know with respect to what property— what notes he .-is being charged ? The land is described by metes and bounds — its locality ■ given. The notes with all their-endorsements are embodied in the indictment. What better knowledge could be conveyed by it? The defendants know with respect to the very land, and in regard to what particular notes they -are charged to have made false statements. The connection of defendants with the notes and -the lands necessary to be shown in this ease is the criminal connection by way of false pretenses.

These averments of the description and of the date of the transaction, will, we are of the opinion, admit evidence on the part of the state of the name of the owner of the real estate at that time, if necessary.

As to the notes, the ownership is indicated in the copy incorporated in the indictment.

The second objection-is “that there is nothing, as shown by the indictment, to throw Byers -off his guard as .to -the value of the land or notes, and some artful device must have been used to bring the facts within the statute.”

The indictment says, “for the purpose and with the intent of inducing and causing one William M. Byers to sell and to deliver to him, the said George E. Williams, certain goods and chattels hereinafter described, unlawfully did falsely pretend to the said William M. Byers, with the intent then and there and thereby to defraud the said William M. Byers,” etc.; that certain real estate and certain notes were then and there of the value of, etc.

The device, the artifice, is alleged in that the indictment charges that these false representations were made, and for the purpose of bringing about a sale, by William M. Byers, of certain goods and chattels to the defendants.

Counsel say no bargain or sale is alleged; no colloquiem. Sale and delivery, and payment are alleged. The colloquiem need not be. It is sufficient to state the fact of the pretense correctly. The very words need not be stated.

Now, as to the value claimed to have been, assigned to the property^by the defendants. Defendants’ counsel,contend that ‘ ‘ these are mere opinions only, and that the prosecution for false pretenses can not be based upon such statements.” They cite some authorities in which value is held to be a mere matter of opinion, and some in which such representations are held not indictable. These authorities we do not regard as conclusive of the point, as only two of them declare the principle broadly, and these seem to be governed by the particular facts of the case, as should be so in a case of false pretenses. None of them give a good ground for, or imply, that there is any such general rule as is contended for by counsel. Let us ourselves reason a- little on the subject.

■ That a thing has value is a fact in relation to that thing. A statement of its true value 'is a statement of a fact. A false statement of its true value is a false statement of a fact. A false pretense may be generally defined as a false statement of a fact, knowing it to be false.

, Therefore, a false statement of its true value, being a false statement of fact, if the party knows it to be false, must be a false pretense. How - can it be a mere matter of opinion? One may have an opinion as to a thing of which he knows little or nothing,' but a statement of a fact which he knows is false is not his opinion. Opinion is what one thinks, as distinguished from what he knows to be true or false.

Wharton, on Criminal Law (Section 2102), says:

“Some features must be specified, which distinguish the mere ‘puff’ from the false pretense. And the first to be here noticed is that the puff is a general estimate, loosely given as a matter of opinion for which there may be probable grounds, whereas a false pretense is a false statement of a fact known to be false. ’ ’

Bishop, on Criminal Law (Volume 2, Section 454), says:

“If we look to the reason of the law, and especially to its words, we shall see that its aim is to prevent cheating, and the specific cheat denounced is that by a ‘false pretense.’ Now, a mere opinion is np-t a pretense, but any statement of a present or past fact is. When two men are negotiating a bargain, they may express opinions about their wares to any extent they will; answering, if they lie about the opinions, only to God, and to the civil department of "the law of the country. But when the thing concerns fact, as. distinguished from opinion, and a man knowingly misstates the fact, his words amount to a false pretense. ’ ’

And in Subdivision 6 of Section 429 he says:

“In cases like these, there is a point at which mere opinion ends and facts begins. Doubtless there may be expressions about the value of a business, or what one’s principals will do, and certainly there may be as to what sum is due, which will be adequate false pretense; and there may be expressions as to the soundness of a horse, not adequate. Plainly the test must be the common sense of judge and jury,' applied to the special facts of the particular case.” ■

And at Subdivision 2, Section 447, .he says:

“The doctrine may now be deemed settled that any false representation, extending beyond mere opinion, concerning the quality, value, nature, or other incident of an article offered for sale, whereby a purchaser relying on the representation is defrauded, is a violation of these statutes.”

Did these representations extend beyond a mere matter of opinion? What says the indictment?

“For the purpose and with the intent of inducing and causing one William M. Byers to sell and to deliver to him, the said George E. Williams, certain goods and chattels hereinafter described, unlawfully did falsely pretend to the said William M. Byers, with the intent then and there and thereby to defraud the said William M. Byers, that certain real estate was then and there of the value of $5,000, and certain notes were of the value of $2,350. * * * By which said false pretenses in the manner aforesaid, the said George E. Williams, with the intent to defraud the said William M. Byers, then and there unlawfully did obtain from the said William M. Byers the goods and chattels hereinbefore mentioned and described as follows: * * « Whereas, in truth and in fact, said real estate herein-before described was not then and there of the value of five thousand dollars, and was then and there of the value not to exceed one hundred and sixty-eight dollars; and that said mortgage note of twenty-five hundred dollars was- not then and there of .the value of twenty-five hundred dollars, and was then and there of the value of not to exceed one hundred and sixty-eight dollars; and that said twenty-three hundred and fifty dollar note, collaterally secured by said mortgage note for twenty-five hundred dollars, was not then and there of the value of twenty-three hundfed and fifty dollars, and was then and there of the value of not to exceed one hundred and sixty-eight dollars; the said George E. Williams then and there well hnoiuing that said real estate was then and there of the value not to exceed one hundred and sixty-eight dollars, ’ ’ and so forth.

Do not these allegations bring the indictment within the rule laid down by these two greatest American authors on criminal law? We think they do. If, in fact, the value fixed was a mere opinion, that defense is open to the defendants.

This indictment says that it was a false pretense — a false statement of a fact made with the knowledge by the defendants of its falsity.

Did the defendants know the land ? Did they know its value ? Were they informed or misinformed as to it? Did they give their best information, and was it an opinion?

These are facts for the jury to determine, and we can not see, in the face of the charge made in the indictment, that the court would have the license, as a matter of law, to decide them arbitrarily by saying that their statement was only an opinion.

All crimes are statutory in Ohio, and whatever the statute declares to be a crime is such, whether it was so at common law or not, and whether the law of any other state declares it so or not. A mere false pretense is not a crime under our law. Only when a false pretense is made with intent to defraud, and by it anything of value, etc., is obtained from some person, does the false pretense become criminal in this state.

If this indictment charges the crime of obtaining property by false pretenses, it should be read in the light of Section 7076 of the Revised Statutes, and, so read, I find that all things necessary to constitute the crime are alleged with sufficient clearness in this indictment, and the demurrer and the first ground of the motion to quash are, therefore, overruled.

Now, with respect to the second ground of the motion to quash — and the ruling here is as to the motion in each of the indictments which will be referred to — first, “that the record of the court at the time the special grand jury which found this indictment was impanneled, did not show that the regular grand jury for the January term had been discharged.”

The facts are the grand jury for the January term was discharged, and the clerk, in drawing the entry with respect to their final report, which is always done after their discharge, omitted to add these words, ‘ ‘ and thereupon the grand jury was discharged.”

After the impanneling of the special grand jury which found these indictments, Judge Brown discovered that fact and directed the clerk to add such a statement to the entry and to the record of the entry.

The only question can be as to his authority to direct this to be done. In other words, had he the right to make the record show what was actually done within the term ? This was neither a modification nor a vacation of the former entry. It was the adding of something omitted by the clerk from the recital of what had actually been done by the court. The discharge was the act of the court and had been accomplished. An entry of that fact' was the duty of the clerk, and the correction of his mistake and neglect to do so was the duty of both.

U. S. Martin, Prosecuting Attorney; E. G. Dentinger, Assistant Prosecuting Attorney; Patterson & Patterson and Gottschall & Turner, for the State.

Elihu Thompson, Chas. H. Ifumler and C. J. Mattern, contra.

In other words, ■ the record should speak no more and no less than the truth. -“The Court'of Common Pleas has ample-control over its own orders and judgments during the term at which they are rendered, and the power to vacate or modify them in its discretion.” 3 O. S., page 447.

This certainly carries with it the power to make the correction of an omission in an entry,' and the duty is apparent' in any case. '

Further, the entry of Monday, February 20, 1905, with reference to the impanneling of the special grand jury which found these indictments, reads as follows:

“It appearing to this court that the grand jury duly impanneled for this, the January term, 1905, has teen discharged, having made its final report, on motion of the prosecuting attorney in open court for a new grand jury, it being made to appear to the court that the same is necessary, it is hereby deemed necessary that a new grand jury be ordered, ’ ’ etc.

This ground of the motion is, therefore, overruled.

Second. ‘ ‘ That the previous indictments had not been disposed of, as shown by the record. ’ ’ The entries' had not gone on at the date of the impanneling of the new grand jury, but demurrers had been sustained to the former indictments by Judge Brown, and the defendants declared discharged.

The entries were subsequently in the regular way endorsed by the court, and filed as of the day the judge’s decision was rendered, and are of record.'

Besides, Section 7212 recognizes the pendency of one or more indictments for the same criminal act as wholly proper, and in such a casé only requires the election by the prosecutor as to the indictment upon which he will proceed.

This ground of the motion to ’quash as to the several indictments is also overruled.  