
    [No. 7198.]
    Stumpff v. The People.
    1. Criminal Law — False Pretenses — Mere non-disclosure is not a pretense, even though if disclosure had been made it would have deterred the prosecutor from parting with his money- — (203).
    The sale of chattel® which are subject to an existing mortgage, without informing the purchaser of the incumbrance, is not a false pretense within the statute (Mills Start. Secs. 1378, 1379, Rev. Stat. Secs. 1848, 1849), even- though the title be warranted ¡by the seller — • (2i0 3).
    2. -Pretense Plot Relied On- — A false pretense not relied upon is not within the statute — -(204).
    3. -Other Grimes — That the accused violated the statute prohibiting the sale of mortgaged chattels without advising the purchaser of the mortgage (Mills Start. Sec. 392, Rev. Start. Sec. 524), has no relevance to an information charging the obtaining of the money by false pretenses- — (203).
    
      Error to Teller District Court — Hon. John W. Sheafor, Judge.
    Mr. T. B. McDonald and Mr. T. E. McIntyre for plaintiff in error.
    Hon. John T. Barnett, attorney general, and Mr. Elmer L. Brock for defendant.
   Chief Justice Campbell

delivered the opinion of the Court:

Defendant was convicted of obtaining money by false pretenses, and was sentenced to the penitentiary. Several fales representations and pretenses are set forth in the information. The only one relied on and concerning which alone there was evidence, is that, in selling to the prosecuting witness Johnson a cow defendant obtained from the purchaser $30 in money by falsely representing that the animal.was free from all encumbrances whatsoever, whereas there was a valid existing chattel mortgage upon it. A motion to quash was filed, based upon the contention that the information was too indefinite and uncertain to apprise defendant of the nature of the charge against him. It was overruled and defendant says this was error. As the evidence does not prove the charge made, we shall not consider the ruling on the motion.

There is not a word of evidence that any representation or pretense was made by defendant to the prosecuting witness, or to any one else, about a mortgage. He was neither asked by the purchaser, nor did he state, anything about any encumbrance, as the prosecuting witness himself testifies. There was no reference or .statement in the bill of sale, which at the time defendant gave to the purchaser, about a mortgage, and the prosecuting witness says that the instrument contains every representation made by defendant on that subject. The most that can, be said of it is that therein defendant vendor may have warranted the title to be good, and .agreed to defend it. Under the law of this state a mortgagor of chattel property holds the title, subject only to the lien of the mortgage, which, before default, and In the absence of false representations, he may sell and convey without violating this statute with reference to false pretenses. We have another statute which makes it a crime for the mortgagor to sell mortgaged property without the written consent of the mortgagee, but defendant is not being prosecuted thereunder and it has no bearing upon any question involved in this case. Lafayette County Bank v. Metcalf, 29 Mo. App. 384. The Attorney General does not claim that any false verbal statement was made by defendant at the time of the sale, but seeks to bring the case as made within the false pretense statute, upon the theory that the silence of defendant with reference to the chattel mortgage is of itself a false pretense and misrepresentation. The general rule is that the mere non-disclosure of facts known to defendant, even though a disclosure thereof would operate to deter the prosecuting witness from parting with his money, is not a false pretense. 19 Cyc. p. 403. And this is true, even though a false pretense may be proved by the acts or conduct of the defendant as well as by his words. In People v. Baker, 96 New York 340, Earl, Justice, in delivering the opinion of the court, expressly held that mere silence and mere suppression of the truth, upon which another may act, is not sufficient to constitute the crime of false pretenses. But if it can be held that the failure of defendant to disclose to the prosecuting witness that there was an existing mortgage upon the cow at the time of the sale is sufficent to constitute the crime of ¡false pretenses under our statute, it is enough here to say that the information should have so charged. It does not do so; but, on the contrary, expressly alleges that defendant made a false representation and false pretense that the cow was free and clear from all liens and encumbrances of every kind whatsoever. The mere silence of defendant at the time of the sale, or concealment of the existence of a mortgage, is not proof of this charge of a positive false verbal representation.

Moreover the prosecuting witness testifies that he did not rely upon any representation of defendant with reference to a mortgage, and that none was made, but that he did rely upon the bill of sale, appiarently meaning that he relied upon the supposed warranty which it embodied. While a promise added to a false pretense will not, of itself, acquit a defendant, yet, when the prosecutor does not rely upon the misrepresentation, but on the warranty, this particular statute is not violated. Jackson v. People, 18 Ill. App. 508. Manifestly the charge in the information was not proved by the evidence. The judgment is therefore reversed. '

Reversed.

Mr. Justice White and Mr. Justice Bailey concur.  