
    E. F. Baker v. The State of Ohio.
    1. An averment in an indictment, that the prisoner by false pretenses obtained money from A B., is not sustained by proof that the prisoner by false pretenses procured A. B. to indorse a forged check, and then sold the check for money, and that A. B. afterward paid the amount of the check to the purchaser.
    2. An indictment charging that the prisoner by false pretenses procured A. B. to indorse a forged check, which was of “ no value,” and that “ upon the indorsement,” the prisoner obtained seventy-five dollars, the money of A. B., with intent to’defraud him “ of the same,” is not a good indictment under the statute (74 Ohio L. 289, sec. 7) for the offense of procuring a person, by false pretenses and with intent to defraud, to in- • ■ dorse a check.
    
      Error, to the Court of Common Pleas of Preble county.
    The plaintiff in error was tried and convicted on an indictment for obtaining money by false pretenses, under the seventh section of chapter two of the revised code of May 5, 1877 (74 Ohio L. 289). The indictment charged, in substance, that Baker, having in his hands a forged or fictitious check, “ of no value,” purporting to be drawn upon a banking firm in New York, falsely represented to one G. Dix Hendricks that the check was genuine, and thereby “ did obtain from the said G. Dix Hendricks his signature as indorser of said check, and did obtain, upon said indorsement of said check, the sum of seventy-five dollars,, of the value of seventy-five dollars, of the money, goods, and chattels, property, and effects of said G. Dix Hendricks, with intent then and there and thereby to cheat and defraud the said Hendricks of the same.”
    On the trial, the state proved the false pretenses, as alleged, and that Hendricks was thereby induced to indorse the forged or fictitious cheek, and ■ that upon the credit given to the check by Hendricks’ indorsement, Baker procured the discount of- the check in bank, and received, from the bank the amount thereof, which Hendricks had. subsequently refunded to the bank. This is all the evidence offered, and the record shows that the defendant’s counsel admitted it to be true, but “ demurred” to the evidence as insufficient. The court “ overruled the demurrer,” and submitted the cause to the jury, who returned a verdict of guilty, and the defendant was sentenced to the penitentiary. He now seeks to reverse the judgment, on two grounds : (1) That the indictment charges no crime or offense; and (2) that the evidence is insufficient to support the indictment.
    
      Jam.es A. Gilmore, for plaintiff in error.
    
      Isaiah Pillars, attorney-general, for the state.
   "Welch, 0. J.

The statute makes it a penitentiary -offense to obtain from any person property or money of the value of thirty-five dollars, or more, by false pretenses, and with the intent to defraud. It also makes it a like offense to procure the signature of any person as indorser ■of a check, or other paper therein named, of like value, by like means, and with like intent. "We think this a good indictment for the first named of these offenses. Tr.ue, it has much more in it than is necessary to a description of that offense, and seems really to be an attempt to charge both offenses in the same count; but it contains all the ■elements of a good indictment for the first named offense. It charges that the prisoner obtained from Hendricks •seventy-five dollars by the false pretenses named, and with intent to defraud him of the money. It can not be held a .good indictment for the second offense—that is, the fraudulent procurement of Hendricks’ indorsement of the check —both, because the check is not alleged to be of any value, and also because the fraudulent intent charged relates exclusively to the obtaining of the money, and not to the procuration of the indorsement, which seems to have no connection with the procuration of money from Hendricks. .The charge is, not that the prisoner intended to defraud Hendricks by rendering him liable on his indorsement, nor simply and generally, in the language of the statute, that he intended to defraud, but specifically that he intended to •cheat and defraud Hendricks out of the money obtained from him.

But does the evidence support the indictment? We think not. There is no evidence tending to show that the prisoner obtained any money from Hendricks. The money was obtained from the bank. The fact that Hendricks was compelled to repay the amount to the bank did not make it his money. It was the indorsement, and not the money, that was obtained from Hendricks. The prisoner, from what appears in the evidence, might have been indicted and convicted, either for obtaining Hendricks’ indorsement of the check, by false pretense and with intent to defraud, or for obtaining the money from the bank by like means and witk like intent. Indeed, I do not see-wiry lie might not also be indicted for uttering tbe forged or fictitious cheek. But he was indicted for neither of' these offenses, but' only for obtaining money of Hendricks, a charge which the evidence does not even tend to prove.

With regard to the practice of demurring to the evidence,. I will only say that it does not seem to be provided for or sanctioned by the criminal code. In such cases, instead of demurring, I think the better practice is to move the court to exclude the evidence, or to instruct the jury that it is insufficient. In the present ease we consider the demurrer-as the equivalent of such a motion, and the overruling of the demurrer as equivalent to overruling the motion.

The judgment must be reversed, and the cause remanded for further proceedings.

Judgment accordingly.  