
    *Fay v. The Commonwealth.
    January Term, 1877,
    Richmond.
    1. Criminal Law — Larceny — False Pretences. — F is indicted for the larceny of $208 of notes of United States currency, the property of R. ’xhe proofs refer to F*s obtaining money from R by false pretences. To sustain the prosecution the commonwealth must prove every fact which would • be required to be alleged in an indictment for obtaining money en false pretences.
    3. Same — Indictment—Allegations.—In such an indictment it would be a material allegation that the money was .obtained by the false pretence alleged, and therefore it is necessary to be proved under the indictment for larceny in order to a conviction.
    3. Same — False Pretences. — The false pretences, either with or without other causes, must have had a decisive influence upon the mind of the owner, so that without their weight he would not have parted with his property.
    4. Same — Same—Intent.—Unless the selling of the property by F to R was by false pretence, with intent to defraud the buyer, the case is not within the statute. Therefore the fraudulent intent must have existed at the time the false pretences were made, by which the money was obtained.
    5. Same — Proofs.—In the absence of proof, that such money as is charged in the indictment to have been stolen was received by the prisoner, he cannot be properly convicted.
    In September. 1876, William Fay was indicted in the hustings court of the city of Richmond, for stealing divers notes of the United States currency amounting to two hundred and eight dollars, the property of Nelson Randolph. He was tried at the October term of the court, and was found guilty, and the term of his imprisonment in the penitentiary was fixed by the jury at three years. The prisoner then moved the court for a new trial, which was refused by the court; *and sentence according to the verdict was pased upon him.
    The prisoner excepted to the opinion of the court overruling his motion for a new trial; and the facts as shown by the bill of exceptions were as follows:
    Sometime in the spring of 1873, at Sea-brook’s warehouse, the prisoner had an interview with one George E. Bowden, the owner of two lots of land, in which Bowden expressed his willingness to sell the two lots together for three hundred dollars, but declared he would not sell them separately. In the latter part of January, 1874, the prisoner sold one of these lots to Nelson Randolph, a colored man, for two hundred dollars, telling him that he owned them; and Randolph paid him fifty dollars in cash, and agreed to pay the residue in monthly installments of fifteen dollars each. About the 8th or 9th of February, 1864, the prisoner called on Bowden and said, “I have come for those lotsand Bow-den replied, “You can have them.” The prisoner asked on what terms as to time, the amount being mutually understood, and nothing being said about it at that time; and it was agreed that fifty dollars of the amount (including the two lots) should be paid cash, and the residue in three notes at eight, sixteen, and twenty-four months. The prisoner paid the cash and executed the notes, which, at prisoner’s request, viere dated on the 1st of February, as was the contract, the actual time of contract being the 9th or 10th of February, whereupon a paper was drawn up and delivered by Bowden to Fay, setting forth the contract, which paper was as follows: ’¡'Richmond, Va., February 1st, 1874. This 1st day of February, 1874, between Geo. E. Bowden, of the city of Richmond, of the first part, and Wm. Fay, of the said city, of the second part, doth agree, in consideration of the sum of three hundred dollars, payable one-fourth cash and the balance in three equal instalments of eight, sixteen and twenty-four months (with interest added) respectively, after date, to convey to Wm. Fay, of the second part, or his heirs or assigns, certain real property in the county of Henrico, state of Virginia, as follows: all that certain lot, piece or parcel of land lying and being in the county of Henrico, near Union hill, on the west side of 25th street, between R. and S. streets, fronting sixty feet on 25th street, running back between parallel lines one hundred and twenty-five feet to an alley in common fourteen feet, designated as lots Nos. six and seven in square 121 of Adam’s plan, being the same land conveyed to the said George E. Bowden, of the first part, by deed dated July 18th, 1868. And we do agree that the title to the above property shall be retained until all the purchase money is paid.
    Geo. E. Bowden,
    Wiu.iam Fay.
    It was further proved, that on the delivery of this paper, the prisoner said to Bow-den. “I have made one hundred dollars today. for I have sold those lots to two colored men;” and asked that the deed should not be made until they paid, and then made to them, to save expense; that Bowden replied, “I don’t care, as I have got by price;” that the prisoner thenceforward paid the taxes on the lots, Bowden declining to pay when the bills were presented to him, and sending *the collectors to Fay. the prisoner, telling them that Fay had bought them; the taxes on Randolph’s lot being charged to him, and paid by him to Fay in the first payment to Fay; that when the prisoner’s first note fell due he failed to pay it, saying the negroes had not paid him; that he paid it eventually, but in instalments.
    And that he failed to pay the balance, continuing his excuse for failure to pay on the same ground, and did not pay at all; the balance remaining unpaid until paid by the negro, Randolph, in April 1876, to Bowden, in order to get his title; and that Randolph never knew or was informed that the property did not belong to Fay until he asked for his deed.
    It was further proved that shortly after the last payment on said note. Fay went into bankruptcy, and has never paid the other notes.
    It was further proved, that upon Nelson Randolph completing his payments as agreed, Fay gave him the following order on Bowden, to wit:
    April 3, ’76.
    Mr. Bowden:
    Sir, — This is to certify that Nelson Randolph has paid all except $1.00 for one lot of land on 25 st., in sq. 121, fronting on 25 st. 30 ft., running back 125 ft., it being the south lot. Is entitled to his deed as soon as he pays the balance and T settle with you.
    Wm. Fay.
    That Randolph went to see Bowden with Fay’s order, but that Bowden refused to give Randolph his deed unless the balance of one hundred and fifty dollars due on that lot by Fay was paid to him, and ’¡'Fay himself, a few days after, went with Randolph to see Bowden, with the same result, and that Randolph finally paid his balance, amounting to eighty-seven dollars of principal and interest, when Bow-den executed his deed to Randolph, the prisoner telling him that was the best thing to do, and promising to reimburse him; which he had not done.
    It was further proved that the prisoner had lived in the city for above twenty years, and was a man of good repute.
    Upon the application of the prisoner, a writ of error and supersedeas was awarded by this court.
    
      Crump, Young and Keiley, for the prisoner.
    
      The Attorney General, for the commonwealth.
    
      
      Criminal Law — Indictment — Larceny— Embezzlement. — The principal case is cited in Pitsnogle’s Case, 91 Va. 811, to support the proposition that on an indictment for larceny, proof of embezzlement is sufficient to sustain the - charge. See also, Shinn’s Case, 32 Gratt. 899, and note. In State v. Halida, 28 W. Va. 503, the court says: “Both counts in the indictment here 'are good as counts for simple larceny. It is therefore not important whether or not the first count is also good as an indictment for obtaining the mule under false pretences, because under the aecision above cited, all the evidence which could be introduced to sustain an indictment for obtaining the mule by false pretence's can also be introduced in support of an indictment for simple larceny, the legal offense as well as the punishment in both cases being precisely the same,” citing the principal case and Dull’s Case, 25 Gratt. 965. See also, Anable’s Case, 24 Gratt. 563; Leftwich’s Case, 20 Gratt. 716; Dowdy’s Case, 9 Gratt. 727.
    
   Anderson, J.,

delivered the opinion of the court.

This is a prosecution in fact for obtaining money on false pretenses, which is made larceny by the statute; and the indictment is for larceny.

It is a reasonable proposition, that upon this indictment it is necessary for the commonwealth to prove every fact which would be required to be alleged in an indictment for obtaining money on false pretences. And in such indictment it would be a material allegation that the money vías obtained by the false pretence alleged, and therefore was necessary to be proved in this indictment in order to a conviction. The false pretence must be the instrument of the cheat. Bishop on Criminal Raw, § 437. The pretence need not have been the only inducement. If. operating either alone or with other causes, it had a controlling influence, so that but for it the person to whom it was addressed *would not have yielded, it is suffie’ent. In a note to the above section the author says: In Commonwealth v. Drew, 19 Pick. R. 179, Morton, J., stated the true doctrine thus: “that the false pretences, either with or without the co-operation of other causes, had a decisive influence upon the mind of the owner, so that without their weight he would not have parted with his property.” In People v. Haynes, 11 Wend. R. 557, 14 Wend. 546, Chancellor Walworth employed much the same language, saying: “It is not necessary to constitute the offence of obtaining goods by false pretences, that the owner should have been induced to part with his property solely and entirely by pretences which were false; but if the jury are satisfied that the pretenses proved to have been false and fraudulent were a part of the moving causes which induced the owner to part with his property, and that the defendant .would not have obtained the goods if the false pretences had not been superadded to statements which may have been true, or to other circumstances having a partial influence upon the mind of the owner, they will be justified in finding the defendant guilty of the offence charged, within the letter as well as the spirit of the statute on the subject.” Other inducements may have combined with the false pretences to induce the owner to part with his property; but it must appear that but for the false pretences the owner would not have parted with his property— that they had the controlling, prevailing influence. Anable’s case, 24 Gratt. 563, 567.

The only proof of any false pretence in this case, or that the prisoner made any statement that was not strictly true is, that he said he was the owner of the lots. It appears from the certificate of facts that, in the spring of 1873, the prisoner had an interview with *George E- Bowden, the owner of two lots of land, in which Bowden expressed his willingness to sell the two lots together for $300, but declared that he would rwt sell them separately; and that afterwards, in the latter part of January 1874, the prisoner sold one of them to Nelson Randolph, a colored man, for $200, telling him he owned them; that Randolph paid him fifty dollars in cash, and agreed to pay the balance in monthly instalments of fifteen dollars each. It is contended for the commonwealth, that “telling him that he was the owner of the lot” was a false pretence. But it is not proved that he, Randolph, was influenced by that declaration to make the purchase, and that he would not have purchased and made the cash payments but for that declaration of the prisoner, nor can it be inferred. It is rather to be presumed that Randolph desiring to have the lot would have accepted the offer of the prisoner if he had said nothing to him about the ownership, as he made no inquiry of him about it, so far as this record shows. It does not appear that the declaration made by the prisoner was made in response to an inquiry made by Randolph, but seems to have been incidentally mentioned by the prisoner. This defect in the proof, if it had been in the allegations of an indictment for obtaining money on false pretences, would have been fatal oh demurrer, and it would seern ought to avail the prisoner as effectually in this proceeding. The court is of opinion, therefore, that upon this ground the verdict was contrary to the law and the evidence, and ought to have been set aside.

The court is further of opinion, that unless the selling was by false pretence, with intent to defraud the buyer, the case is not within the statute. It follows that the fraudulent intent must have existed at the time the *false pretences were made, by which the money was obtained. If there was an intention by the prisoner to defraud Randolph, he could not have intended, when he sold him the lot, and received fifty dollars in part of the price, ever to pass to him title for the same. But the facts as certified by the court show the contrary. It is a fair inference from them that he had previously been in treaty with Bowden for the purchase of the lots, and ascertained that he could pur-, chase them together for three hundred dollars, and was well satisfied that all that was necessary for him to do was to accept Bow-den’s offer, and the lots were his; and finding that he could sell- each lot for two hundred dollars, and make a- handfeome speculation, he determined to take them at Bowden’s offer, and consider them as virtually his. It is evident that he had no purpose to cheat Randolph by inveigling him to pay him his money for property which he had no right to sell him, and for which he could' not and did not intend to make him a title. This is shown by the fact, that a few days after the sale to Randolph he went to Bow-den and completed the contract of purchase with him, paying him in cash fifty dollars, the money or the amount he had received from Randolph, and executing his notes for the deferred payments, and entering into articles of agreement with him, setting out the terms of the sale and purchase, informing him that he had sold each of the lots for two hundred dollars, at an advance of one hundred dollars on the price he was to pay him for them, and requesting him, when the purchase money was paid, to convey the lots respectively to his vendees. By this conduct he showed a bona fide intention that Randolph should get what he sold him, and for which he had received the cash payment, and conclusively repels the idea of an intent to cheat or defraud him in *the sale. If in his subsequent dealings with him there was-evidence to show that he had changed his purpose, and sought to cheat and defraud him, which we think there is not, it could not make the previous act fraudulent and criminal, which was bona fide and lawful. The payments which he afterwards received from Randolph, though in small sums, he ought to have turned over to Bowden until he had secured title to Randolph, and to have run no risk of not .being able to make the payments to Bow-den when they fell due. But it would be a harsh judgment to say that his not doing so evidenced an intention to cheat and defraud Randolph. It is more probable, and it is more just to conclude, that he calculated upon being able, and bona fide intended to make the payments to Bowden when they fell due from other sources, in which he was disappointed by misfortunes, which reduced him to bankruptcy; and that his failure to fulfil his contract, and to secure Randolph’s title was, though censurable, rather his misfortune than a crime. But he had reduced the amount due on Randolph’s lot to eighty-seven dollars, which Randolph paid to Bow-den, and received his deed with the approval of the prisoner, who though discharged from his legal liability by the act of bankruptcy, revived it by his promise to refund the amount to Randolph. The court is clearly of opinion that the evidence is wholly insufficient to establish the fraudulent intent, which conclusion is strengthened by the fact that the prisoner has resided in this city for twenty years in good repute.

The indictment charges the larceny of divers notes of the United States currency, for the payment of divers sums of money, in the whole amounting to the sum of $208, the property and notes of Nelson Randolph.

The evidence does not show that the prisoner ^received from Randoloh notes in United States currency. The proof is, that he received fifty dollars in cash, and that Randolph agreed to pay the balance in monthly installments of $15 each. Upcfri the authority of the case of Johnson v. Commonwealth, 24 Gratt. 555, the court is of opinion that in the absence of proof that such money as was charged by the indictment to have been stolen was received by the prisoner, the jury was not warranted in finding a verdict against him. Upon ¡he foregoing grounds the court is of opinion to reverse the judgment and to remand the cause.

Judgment reversed.  