
    Griffith v. The State of Ohio.
    
      Criminal law — Indictment for obtaining money by false pretenses —Plea in bar — Prior conviction of embezzlement — Error to sustain demurrer — One acquitted of forgery and issuing false check — Cannot be convicted of obtaining money by false pretenses, when — Evidence—Charge to jury.
    
    (No. 14887
    Decided December 11, 1915.)
    Error to the Court of Appeals of Hamilton county.
    On the 17th day of February, 1914, the grand jury of Hamilton county, Ohio, returned into common pleas court an indictment containing three counts.
    The first count charged the plaintiff in error, John C. Griffith, with forgery; the second count charged him with uttering and publishing a false and forged instrument; and the third count charged him with obtaining by false pretenses the sum of $2,000, the property of The Second National Bank of Cincinnati, Ohio.
    To this third count of the indictment John C. Griffith filed a plea in bar, averring, among other things, that at a former term of the common pleas court of Hamilton county, Ohio,- a certain indictment was presented by the grand jury against him, charging him with embezzling the sum of $5,-434.06 of the personal property of The Westlake Construction Company, to which indictment he had entered a plea of guilty and had been sentenced by the court to the Ohio penitentiary for an indeterminate period, but that this sentence of the court had been suspended during his good behavior; that the $2,000 charged, in the third count of the indictment to have been secured by him by false pretenses, was part of the $5,434.06 of which he had theretofore been indicted and convicted of embezzling from The Westlake Construction Company.
    The court sustained a demurrer to this plea in bar. Upon the trial of the accused upon this indictment the court rejected evidence tending to show that the defendant had been indicted and had pleaded guilty and was sentenced for the embezzlement of $5,434.06, the property of The Westlake Construction Company, and that this included the $2,000 that he is charged in this indictment with having obtained from The Second National Bank of Cincinnati, Ohio, by false pretenses.
    The trial court permitted a witness called by the state to testify from memory as to the items shown by the books of The Westlake Construction Company to. have been included in the embezzlement charge, and he testified that this $2,000 was not a part of the sum named in that indictment.
    The court, upon request of the counsel for the defendant, charged the jury that if this $2,000 was included in the sum named in the indictment charging the defendant with embezzlement, then there could be no conviction on the third count of this indictment. Later, in the general charge, the court took from the consideration of the jury all questions of the previous indictment for embezzlement and all questions as to the amount being the same or not,, giving as a reason therefore that “there is no charge in this indictment covering the ground of embezzlement or covering the ground of obtaining money by false pretenses under an act of embezzlement, that is to say, on the question of this third count.”
    The jury found the defendant not guilty of forgery as charged in the first count of the indictment, not guilty of uttering a false and forged instrument as charged in the second count of the indictment, but guilty of obtaining property by false pretenses as charged in the third count of the indictment.
    The petition in error contains other assignments of error not necessary to be considered in the disposition of this case.
    
      Messrs. Cogan, Williams & Ragland, for plaintiff in error.
    
      Mr. John V. Campbell, prosecuting attorney, and Mr. Walter M. Locke, assistant prosecuting attorney, for defendant in error.
   By the Court.

A demurrer to a plea in bar to an indictment should be sustained where it appears from the plea that the offense charged in the indictment and 'the offense of which the defendant claims to have theretofore been acquitted, convicted or pardoned is not the same offense.

In the trial of an accused upon an indictment charging the obtaining of money under false pretenses it is error in the court to exclude evidence tending to prove that the defendant had theretofore been convicted of embezzlement of the same money or property that is alleged in the indictment to have been proeúred by false pretenses. The record of the former indictment and proceedings had thereunder is competent evidence tending to show a former conviction of embezzlement of the same funds; in addition thereto the defendant must show by further evidence that he is the same person named in the former indictment, that the transaction is the same and the funds identical.

To constitute embezzlement it must appear from the evidence that the accused obtained possession of the money or property claimed to have been embezzled by him by virtue of his election, appointment or employment as an officer, attorney at law, agent, clerk, guardian, executor, administrator, trustee, assignee in insolvency, officer of a lodge or subordinate body of a fraternal or mutual benefit society, servant or employe of a person.

To constitute the crime of obtaining property by false pretenses it must appear from the evidence that the accused wrongfully and unlawfully obtained possession of the property by means of false pretenses. .

A separate count charging each crime may be contained in one indictment, but upon the trial of such indictment the court should instruct the jury that the accused cannot be found guilty of both crimes in reference to the same money or property.

The rule is not different where these crimes are charged in separate indictments, and if it appear from the evidence that the state has theretofore procured conviction for the embezzlement of money, the accused cannot be found guilty upon a second indictment of obtaining the same money by false pretenses.

It is further provided by Section 13578 that if there be pending against the same defendant two or more indictments for the same criminal act, the prosecuting attorney must elect upon which he will proceed, and upon trial being had upon one of them the remaining indictment or indictments shall be quashed.

It therefore follows that if these separate indictments had been returned by the same grand jury, and it were made to appear to the court that they were different indictments for the same criminal act, the state would have been required to elect upon which indictment it would proceed to trial.

It is error for a court, upon the trial of the second indictment for obtaining money under false pretenses, to charge the jury that it cannot consider any question relating to a previous conviction for embezzlement of the same property.

. Where an indictment contains three counts, one count charging forgery, another charging the issuing of a false and forged instrument, the third charging the obtaining of money under false pretenses, and the state relies for conviction on the third count in the indictment, charging the obtaining of money under false pretenses, solely upon the fact that the check presented to the bank for payment was a forged instrument, and .that the defendant, either having forged the same or knowing it to have been forged, presented it for payment, and the jury finds that the defendant is not guilty of forgery and not guilty of issuing a false and forged instrument, it should return a verdict of not guilty of obtaining money under false pretenses.

In the trial of this case the court properly charged the jury that “The defendant cannot be convicted of obtaining money under false pretenses on the third count as charged in this indictment, unless this check was forged or altered at the time he presented it to the bank. False pretenses consist in making a representation to another of an existing fact, which the party making it knows to be false at the time, with the intent that the party to whom they are made should act upon them and the party must act upon them to its detriment.”

No withstanding this charge of the court the jury found the accused not guilty of forgery and not guilty of uttering a false and forged instrument in writing, but, nevertheless, found the accused guilty of obtaining money under false pretenses as charged in the third count of this indictment.

No evidence whatever was offered by the state of any other false pretenses except that the check was forged and that the defendant, either having forged the same or knowing it to be forged, presented it to the bank and obtained the money upon it. It follows, therefore, that if this defendant was not guilty of forging this check and not guilty of issuing a forged check, knowing it to be forged, he could not be guilty of obtaining money by false pretenses when no other false pretenses were relied upon or sougjit to be proven by the state.

The judgment of the common pleas court and the judgment of the court of appeals affirming the same are reversed, and cause remanded.

Judgments reversed, and cause remanded.

Nichols, C. J., Johnson, Donahue, Wanamaker, Jones and Matthias, JJ., concur.  