
    Britt vs. The State.
    1. The defendant falsely pretended that he had a warrant against the prosecutor for passing counterfeit money, and by means of 'throats and promises in regard thereto extracted bank notes from the prosecutor, in the county of Roane; and on the next day defendant again pursued the prosecutor into an adjoining county and falsely pretended that he had stolen his overcoat, and by means thereof extracted from the prosecutor articles of clothing. The indictment charged the defendant with obtaining the bank notes by falsely pretending that defendant had passed counterfeit money. It is held that evidence of the transaction in the adjoining county was admissible evidence to sustain the charge in the indictment. It is part of the res gesta.
    
    2. A single pretence proved as laid, is sufficient to support the conviction, though such pretence be joined with others in the same count; nor is it necessary that the indictment should aver in express terms that the pretence was “false.”
    3. Where an indictment charged that defendant obtained the. money of the prosecutor by false pretences, and it appeared that the money belonged to another, but was in the custody of the prosecutor as bailee, it is held that this state of facts sustained the enactment.
    Solomon G. Britt was indicted in the Circuit Court of Roane county, for obtaining bank notes, the property of R. S. Phipps, by false pretences.
    The indictment (the first count being abandoned) is in the following words: “The Grand Jurors for the State of Tennessee, duly summoned, elected, empanneled, sworn and charged to enquire for the body of the county of Roane, in the State aforesaid, upon their oaths, present that Solomon G. Britt, late of said county of Roane, laborer, on the fourteenth day of November, in the year of our Lord, one thousand eight hundred and forty-five, with force and arms, in the county aforesaid, one bank note of the value and denomination of twenty dollars, payable at the Bank of Tennessee, at Nashville, the property of Robert S. Phipps, then and there in the possession of the said Robert S. Phipps, unlawfully and feloniously did steal, take, and carry away, contrary to the form of the statute in that case, made and provided to the evil example of all others in like cases offending, and against the peace and dignity of the State.
    
      “And the Jurors aforesaid, upon their oath aforesaid, do furthermore present, the said Solomon G. Britt, on the said fourteenth day of November, in the year ■ of our Lord eighteen hundred and forty-five, with force and arms, in said county of Roane, falsely, fraudulently, and feloniously pretended that he, the said Solomon G. Britt, had before that time, to wit, on the year and day last aforesaid, in the county aforesaid, received and taken in payment from a certain Robert S. Phipps a certain supposed bank note of the value and denomination of five dollars, which said note he pretended was spurious and counterfeit, and then and there falsely, fraudulently, and feloniously pretended that he would indict, prosecute, and bring to punishment the said Robert S. Phipps, as a felon, guilty of passing counterfeit bank notes, and then and there falsely, fraudulently, and feloni-ously further pretended that he, the said Solomon G. Britt, wished to look at, and examine, the other monies and notes of him, the said Robert S. Phipps, to see and determine if the same were counterfeit and spurious; and that the said Robert S. Phipps then and there had and possessed certain bank notes, to wit, one bank note, on the bank of Tennessee, of the value and denomination of twenty dollars, &c.; and that the said Solomon G. Britt, by means of said false, fraudulent, and felonious pretences,did thenand there unlawfully, falsely, fraudulently, and feloniously obtain from the said Robert S. Phipps, the said bank notes above mentioned, of the value aforesaid, the property, and in the possession of the said Robert S. Phipps, as aforesaid, whereas, in truth and in fact, the said Solomon G. Britt had not received or taken in payment any such spurious or counterfeit bank note of any Bank, individual, or corporation whatever; and whereas, the said Solomon G. Britt then and there well knew, that the said Robert S, Phipps had not at any time passed, or paid to him, the said Solomon G. Britt, any counterfeit or spurious bank notes whatsoever; and that the said Britt could not, and did not intend to prosecute, and bring to punishment the said Robert S. Phipps, for any such pretended offences; and whereas, the said Solomon G. Britt did not wish to look at, or examine, the said bank notes, or any of them, of 'the said Robert S. Phipps, to see or examine whether the same were spurious and counterfeit; but that the said Solomon G. Britt then and there, by such false and fraudulent pretences, intended falsely, fraudulently, and feloniously, to steal the same, contrary to the form of the statute in such cases, made and provided to the evil example of all others in like cases offending, and against the peace and dignity of the State.
    “And the Jurors aforesaid, upon their oath aforesaid, do present, that the said Solomon G. Britt, on the said fourteenth day of November, eighteen hundred and forty-five, with force and arms, in said county of Roane, falsely, fraudulently and feloniously pretended that he, the said Solomon G. Britt, wished to look at, and examine, the monies and bank notes of a certain Robert S. Phipps, to see and determine whether the said bank notes and monies were counterfeit and spurious; by which said false, fraudulent, and felonious pretence, he, the said Solomon G. Britt, did then and there falsely, fraudulently, and feloniously, obtain from the said Robert S. Phipps, one bank note of the value and denomination of twenty dollars, of the Bank of Tennessee, the property, and in the possession of Robert S. Phipps; whereas, in truth, and in fact, the said Solomon G. Britt did not wish to look at, or examine, the said bank notes, the property, and in the possession of the said Robert S. Phipps aforesaid, to see and determine whether the same were counterfeit and spurious, but that the said Solomon G« Britt, then and there, by such false, fraudulent pretence, intended at the time, to steal the same, contrary to the form of the statute, in such case, made and provided to the evil example of all like oifenders, and against the peace and dignity of the State.”
    This indictment was submitted under the direction of Judge Alexander, to a jury of Morgan county, to which county the case was transferred, on the application of the defendant.
    It appeared that the prosecutor, Phipps, an inexperienced, timid youth, resided in the State of Alabama; that he had been engaged by his uncle to go to the State of Virginia to collect some money which was due to him in that State; that he went to that State, and on his return passed through Roane county, Tennessee, and by the house of defendant; that as he passed, the defendant proposed to exchange horses with him, and that prosecutor and defendant exchanged horses, the prosecutor giving the defendant a bank bill for five dollars and his horse, for the horse of defendant; that prosecutor mounted his horse and went on some five or six miles, when he was overtaken by the defendant and a man by the name of Simpson; that defendant charged the prosecutor with having passed to him a five dollar counterfeit bill at the time of the exchange of horses; said that Simpson was a constable and had a warrant against him for passing counterfeit money. Prosecutor said if the note was counterfeit he did not know it, and that he was willing to give defendant other good money in lieu thereof. The proposition was refused by the defendant. Britt said he wanted to see the balance of prosecutor’s money, to ascertain whether it was also counterfeit. Prosecutor handed him his money, which the defendant received and put it in his pocket, saying that it was “no money;” that prosecutor was taken by defendant and the pretended constable to the bouse of defendant, and that after night the defendant said he must give him one thousand dollars of the money he had collected for his uncle in Virginia, and he would stop the prosecution. The prosecutor denied having collected any money in Virginia, or with having any money except what he had delivered to defendant. The defendant took the horse of the prosecutor, his clothes from his saddle-bags, his saddle, blanket, bridle, and executed his note for fifty dollars to prosecutor, which was re-delivered to the defendant, which was acknowledged by the prosecutor to have been paid to him by the defendant. The defendant was then discharged from the pretended legal arrest. This took place in the county of Roane. On the next day the jxrosecutor left the house of defendant, and having proceeded some sixteen miles on his journey was overtaken by the defendant in i an adjoining county, and arrested on a pretended charge of having stolen the overcoat of the defendant, stripped of his hat and four dollars of money. This testimony was objected to, but the objection was overruled and the testimony admitted to the jury.
    The prosecutor said that he was induced to deliver his property to the defendant through fear of prosecution; that he did not believe that the money was counterfeit.
    The Judge (Alexander) charged the jury, that, in order to sustain this charge, the false and fraudulent pretences must be substantially proved, as laid in the indictment, or at least, some of them; that if this fact were so, that the bank bills passed by the prosecutor to the defendant were in fact counterfeit, or if the defendant believed it to be so, whether it were so or' not, and the defendant intended, at the time, honestly, and in good faith, to prosecute the defendant for the offence, and that he wished to look at the other monies of the prosecutor for the purpose of seeing whether they were counterfeit or not, then, and. in that case, he would not be guilty of this charge, notwithstanding he might have wrongfully appropriated the money to his own use. If, however, the bill passed to the defendant by the prosecutor were not a counterfeit, but was genuine and it was all a mere false and fraudulent pretence on the part of the defendant to get into his possession the money of prosecutor, and he did so obtain it, then he would be guilty; that by the language in the indictment of intending to steal, larceny in its strongest technical sense was not to be understood, but merely that the party feloniously and fraudulently deprived the true owner of personal chattels and converted and appropriated them wrongfully to his own use; that the jury should look at the intent of the defendant, and to this end, and to satisfy themselves as to the true nature of the transaction, they might look at all the testimony in the cause respecting the entire transaction; though they could not convict the -defendant upon proof of his having obtained other articles than those charged in the indictment, and could not regard such proof any further than it might tend to show the character of the transaction, and the intention of the defendant in obtaining the money; that the jury might also look at and consider the proof of the defendant being possessed of property as well as the publicity of the occurrence, to determine whether the defendant intended to steal.
    The jury returned a verdict of guilty, and fixed the term of imprisonment at three years. The defendant moved in arrest of judgment, and assigned the following reasons as the grounds of his motion;
    1st. The indictment in this cause does not allege specifically that the bank notes charged to have been falsely pretended by the defendant to have been counterfeit were not in fact spurious and counterfeit.
    2d. The indictment in this cause does not charge specifically that the bank notes charged to have been obtained by the defendant from the prosecutor were legally issued by any bank, corporation or individual whatever, or that the same were current by usage in the State of Tennessee.
    3d. The indictment in this cause does not charge specifically the time and place of the commission of the particular facts charged to have been done and committed by the defendant.
    4th. The indictment does not charge that the five dollar bank note received by defendant from the prosecutor in this cause, which five dollar bill or bank note,, it is alleged, the defendant falsely pretended to be spurious and counterfeit, was in truth, and in fact, good and genuine.
    5th. The indictment does not charge specifically that the defendant pretended falsely that he had received spurious or counterfeit bank notes of any particular bank, corporation or individual.
    This motion was overruled and judgment rendered in favor of the State. From this judgment the defendant appealed.
    
      H. Maynard, for the plaintiff in error:
    I. The court erred in admitting testimony of the obtaining of other property than that mentioned in the indictment; especially that taken on the following day, for a different reason and probably in another county..- Stone vs. The State, 4_ Hump; Kincheloe vs. The State, 5 Hump. 1; and writers on common law from the time of Foster. That was a distinct substantive offence, and should not have been thrown in upon the defendant, to embarrass his defence.
    2. There is no proof of any but one “false pretence.” The prosecutor says, that he parted with his money solely for fear of being prosecuted for passing counterfeit money. This “pretence” is not in terms negatived in the indictment. The only negative in the indictment is that “defendant did not, and could not intend to indict, prosecute, and bring to punishment the said Phipps, for any such pretended offence.” Archbold, 246. Nor is this a false pretence within the meaning of the statute. Archbold, 247.
    3. This indictment does not charge, except by implication, that defendant pretended that the prosecutor had passed a counterfeit bank note to him, and that in truth, and in fact, he had not done so. Archbold, 36.
    
      Attorney General, for the State.
   McKinney, J.

delivered the opinion of the court.

This is an indictment for obtaining money by false pretences, under the act of 1842, ch. 48. The defendant was found guilty upon the second and third counts of the indictment, and a motion for a new trial, and also in arrest of judgment being overruled, he appealed in error to this court-

The principal error, supposed by the counsel for the prisoner to exist in this case, is in the admission of evidence of the obtainment of other personal goods, not charged in the indictment; and' which, in fact, were obtained at a dilferent timé .from that to which the charge in the indictment refers; • The proof in the case — so far as material to be noticed, in the determination of this point — shows that Phipps, the prosecutor, who was a young man and a stranger, returning from a visit to Virginia, to his residence in Alabama, was overtaken by tbe prisoner, and a confederate, of tbe name of Simpson, wbo was falsely represented to be a constable, on tbe fourteenth day of November, 1845, between tbe residence' of the prisoner and Kingston, and within a fewmiles of .the latter place; and that by means of the false pretences set forth in the indictment, and various other most atrocious falsehoods and artifices, the prisoner obtained from said Phipps his horse, saddle, bridle, and saddle-bags, various articles of clothing, and $55 00, in good bank notes, leaving him nothing but the apparel he had on, and $5 37k in money. The prisoner, having obtained the money and property of said Phipps, proposed to accompany him on his journey as far as Kingston, and they set out about 12 o’clock at night, and reached the latter place about daylight. At the bank of the river, near Kingston, they separated, and Phipps pursued his journey. After going about the distance of fifteen miles the prisoner again overtook him, and charged him with stealing an old over coat which he had on — the prisoner having taken from him his own overcoat, which was a good one. The prisoner took him aside and required him to give up^his hat in exchange for one that was of no value, and also four dollars in money, leaving him with but one dollar and thirty-seven cents. To so much of the foregoing evidence as relates to articles of property, other than the bank notes in the indictment specified, and also to so much thereof as refers to the subsequent transaction, on the next morning, the prisoner, by his counsel, objected, but the objection was overruled and the evidence admitted to the jury. .And the question for our determination is, was this error?

It is not to be controverted, as a .general rule,. that the evidence must be confined to the point in issue, and that no evidence can be admitted which does not tend to prove or disprove the issue joined; and in criminal proceedings the necessity of enforcing this rule is stronger than in civil cases. The facts proved, should be strictly relevant to the particular charge, and have no reference to any conduct of the prisoner unconnected with such charge. _ 2 Russ. 772. But this rule has its qualifications, equally well established as the rule itself, upon principle and authority. It is correctly remarked by an intelligent and accurate writer on the law of evidence, that “the affairs qi men often consist of a complication of circumstances, so intimately .interwoven, as to be scarcely separable from each other; a knowledge of all which is essential, in order to a right understanding of the particular subject of investigation. These surrounding circumstances, constituting parts of the res gestee, may always be shown to the jury along with the principal facts;, and their admissibility is to be determined by the Judge according to the degree of their relation to that fact, in the exercise of his sound discretion.” V Green-leaf, vol. 1, sec. 108.

In the case of The King vs. Ellis, the prisoner was a shopman, and was indicted for stealing six shillings out of a till in the áhop; evidence of other acts of the prisoner, in going to the till and taking money, was proposed to be given to the jury, which was objected to, but the Judge overruled the objection. And the court of K. B., on application for a rule for staying the judgment, on the ground that the prosecutor ought to have been confined, ■in the proof, to one felony, held that, it was in the discretion of the Judge to confine the prosecutor to the proof of one felony, or to allow him to give evidence of other acts which were all part of one entire transaction. & B. & C., 145. It is laid down in 2 Russ, on Or. 775. that where several felonies are all parts of the same transaction, evidence of all is admissible upon the trial of an indictment for any of them; and numerous cases are cited in proof of the proposition. And it is held to be the law now — though formerly held otherwise — that if there be separate indictments for offences which constituted parts of the same transaction, it is in the discretion of the court to admit evidence of the subject matter of one indictment upon the trial of another, and it is said by a learned Judge, that such discretion will be guided by the evidence appearing to be necessary or unnecessary in support of the indictment upon which the prisoner is on trial. Ib. 778. In the same authority it is laid down, that, if it be material to show the intent with which the act charged was done, evidence may be given of a distinct offence, not laid in the indictment; as in a case of robbery, where the prisoners went with a mob to the house of the prosecutor, and one o»f. the mob, with a good intention, apparently, advised him to- give > them somelhing to get rid of them and prevent mischief, upon which the prosecutor gave them the money laid in the indictment; it was held, that for the purpose of showing' that this was not bona fide advice, but. in reality a mere mode of robbing the prosecutor, evidence was admissible of other demands of money made by the same mob at other houses, before and after the particular transaction at the prosecutor’s house, but in the course of the same day, and when any of the prisoners were present. 4 C. & P., 444. So upon an indictment for robbing the prosecutor of his coat, the robbery having been committed by the prisoner threatening to charge the prosecutor with an unnatural crime, Holroyd, J. received evidence of a second ineffectual attempt to obtain money the following evening, by similar threats; and, upon a case reserved, the Judges were of opinion that the evidence was admissible to show that the prisoner was guilty of the former transaction. Russ, and Ry,. 375.' .

The'vibrfegoing authorities very fully and clearly show that the ‘ evidence objected to in this case, as well that w.hich' relates more immediately to the charge laid in the indictmentf as that which referred to the subsequent occur, reirpe on the next morning, was properly admitted to the jury. ^ ^

'2.' It-is insisted that there is no proof of more than one of the “false pretences” laid in the indictment; and that this “pretence” is not sufficiently-negatived in the indictment.

^Without undertaking to decide whether or not the proof sufficiently establishes all the several false pretences stated in the indictment, it is enough to say in answer to this objection, that it is not required by law that all should be proved. A single pretence, proved as laid, though joined with others, is sufficient to support the indictment. Russ, and Ry., 190; 2 M. and S., 379. The pretences laid in the indictment, we think, are all sufficiently negatived. The negation is according to the forms found in the books of criminal pleading. And it is not held necessary, in express terms, as-argued, to aver that the pretences were “false.” 2 East. R., 30; Starkie’s Cr. PL, 105.

3. It is objected, that the indictment does not aver that -the money .obtained by the prisoner was the property of the prosecutor; and that from the proof it is uncertain whether the money belonged to him or to his uncle in Alabama.

The averment, in this respect, is in the language of the statute, and in accordance with the precedents in such cases. As it regards the proof, the prosecutor being in possession of the money, prima facie, he was owner thereof; but admitting that he had it in his possession as bailee or trustee of bis uncle in Alabama, upon this proof the offence created by the statute would .be as well made -oui, and the, indictment alike supported, as if be had been, the absolute owner. . ’ ?

Upon the whole, we think there is no error in this record, and the judgment of the Circuit Court will be. affirmed.  