
    Patrick W. Smith, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.
    An indictment for obtaining goods by false pretences charged, that plaintiff in error, with intent feloniously to cheat and defraud, represented that a bank check delivered by him in payment of goods purchased, purporting to have been drawn by one Peter Smith upon the Ocean bank of New York, for the sum of §140, was a good and genuine check; that he (plaintiff in error), had money on deposit in said bank, and it would be paid on presentation.—EM, sufficient.
    The production of the books of the bank having been waived by counsel for prisoner on the trial, held, that the testimony of the book-keeper of the bank, that the name of the prisoner did not appear upon the books, and there was no credit to that name, was competent and sufficient to show, if true, that there was no funds in the bank to pay the check, and that it was worthless.
    The counsel for prisoner requested the court to charge, that the pretence must appear upon the indictment to be such as could not be guarded against by an exercise of common sagacity and prudence.
    
      EM, that the refusal so to charge was not error; as the sufficiency of the indictment was a question of law to be determined by the court, with which the jury had nothing to do.
    (Argued January 17th, 1872;
    decided January 23d, 1872.)
    Error to the General Term of the Supreme Court in the first judicial department to review judgment of that court, affirming judgment of the Court of General Sessions of the Peace, in and for the county of Hew York, convicting plaintiff in error of the crime of obtaining goods under false pretences.
    The plaintiff in error was tried and convicted in the Court of General Sessions at the April term, 1871, upon an indictment charging in substance, that with intent feloniously to cheat and defraud one Emil Stork, he knowingly and designedly falsely pretended and represented, that a certain instrument and writing for the payment of money, commonly called a bank check, which he, the said Patrick W. Smith, then and there delivered to him, the said Emil Stork, purporting to have been drawn by one Pr. Smith upon the Ocean National Bank of City of New York, payable to the order of E. Stork, dated New York, March 2d, 1871, for the sum of $140, was a good and genuine check, and that he, the said Patrick W. Smith, had money on - deposit in the said bank, and that the said check would be paid on presentation. And the said Emil Stork, then and there believing the said false pretences and representations, and false token and writing, so made and used, as aforesaid, by the said Patrick W. Smith, and being deceived thereby, was induced, by reason of the false pretences and representations, and false token and writing, so made and used, as aforesaid, to deliver, and did then and there deliver to the said Patrick W. Smith 3,000 cigars of the value of $46.66 each 1,000. Whereas, in truth, the said check was of no value, and was a false token and writing, and said Patrick W. Smith had no money on deposit in said bank, and the said check was not paid on presentation. Upon the trial the book-keeper of the Ocean National Bank was called, as a witness, who testified he kept a record of persons who had deposit accounts from the letters I to Z, and that there was no account under the name of Patrick W. Smith or P. B. or P. Smith. This last was received under objection.
    The counsel for the prisoner asked the court to direct a verdict of not guilty, on the ground that the indictment represented the check to be a false token that it was not a false token within the meaning of the statute. He also asked the court to charge that there was not in the indictment allegations of such pretences as amount to a false pretence within the statute, except the allegation that the prisoner represented he had money in the bank, and this was not shown to be false. That the fact that the books of the bank do not disclose the name of the prisoner, viz., P. W. Smith, as a depositor, is not sufficient proof of the falsity of the representation, “ that he, the said P. W. S., had money in said bank.” The books are only evidence of what they contain, and not of the negative assertion that Smith did not have money in the bank. The pretences must appear upon the indictment to be such as could not be guarded against by an exercise of common sagacity and prudence or of ordinary caution. That the alleged false token should be set out in the indictment. These requests were denied, and counsel excepted.
    
      W. F. Kvntzing for plaintiff in error.
    The indictments should have averred, in addition, that prisoner pretended the check was of the value of $140. (R. v. Parker, 7 C. & P., 825 ; 2 Moody, 1; 2 East, P. C., 819; 2 Leach, 652; 5 Term, 564; 2 Virginia cases, 65; 1 id., 146, 157.) A false bank check is not a false token under the statute or at common-law. (2 Russell on Crimes, 286; 2 Virginia cases, 65; 1 Virginia cases, 146; Wharton Am. Cr. Law, § 2061; Rex v. Lara, 5 Term R., 565; Rex v. Flint, Russ & Ryan, 460; 2 Russell on Crimes, 285; Archbold’s Crim. Prac. and Pleading, vol. 3, 473, 10 to 473, 18 and notes by Waterman; State v. Justice, 2 Devereaux, 199; State v. Stroll, 1 Richardson, 24; Wharton Am. Cr. Law, § 2065.) If it is a false token, it should be set out in the indictment. (Lambert v. People, 9 Cow., 578.) The court erred in refusing to charge: “The pretences must appear upon the indictment to. be- such as. could not be guarded against by an exercise of common saga city and prudence, or of ordinary caution.” (The People v. Stetson, 4 Barb. S. C. R., 151; The People v. Williams, 4 Hill, 9; The People v. Clough, 17 Wend., 351 ; The People v. Thomas, 35 N. Y. R., 351; Young et al. v. R., 3 Term Report, 98; Wharton Am. Cr. Law, vol. 2, 5th ed., 2081; 
      McCord v. The People, MS., Ct. of App., November, 1871; People v. Hayes, 11 Wend., 557.)
    
      8. B. Ga/rwm for defendant in error.
    If any of the pretences are false, to which persons of ordinary caution would give credit, it is sufficient. (People v. Haynes, 11 Wend., 557; People v. Thomas, 34 N. Y. R., 321.) Any false pretence, which induces confidence, is sufficient. (Thomas’ case, 34 N. Y., 352.)
   Grover, J.

The principal point urged by the counsel for the plaintiff in error, was that the indictment does not set forth any offence within the statute. It sets out, in substance, that the plaintiff in error, with intent feloniously to cheat and defraud one Emil Stork, did knowingly, etc., represent to him that a certain instrument in writing for the payment of money, commonly called a bank check, which • he then and there delivered to him, purporting to have been drawn by one Pr. Smith, upon the Ocean Bank of the city of New York, dated, etc., for the sum of $140, was a good and genuine check, and that he, plaintiff in error, had money on deposit in said bank, and said check would be paid on presentation. The only question upon the indictment is as to the sufficiency of these representations to bring the case within the statute. They clearly are so. The substance is, that the money was on deposit in the bank for the payment of the check upon presentation, in the usual course of business, and that the check was therefore a good and available security to Stork for the payment of the purchase-money for the cigars, then sold and delivered by Stork to him, in reliance upon these representations. What is said in the indictment denominating the check as a false token, may all be rejected as surplusage. The indictment is good for the false pretences, wholly irrespective of this. The question whether a bank check, drawn by one having no funds provided for its payment, is a false token, does not arise. The counsel for the plaintiff in error waived the production of the books of the bank. The court thereupon properly held that the testimony of the book-keeper as to the contents of these books was competent, and this testimony, if true, was sufficient to show that at the time of the transaction there were no funds in the bank for the payment of this check, and that it was worthless, and that the plaintiff in error knew it. The counsel for the plaintiff in error requested the court to charge the jury, that the pretence must appear upon the indictment to be such as could not be guarded against by an exercise of common sagacity and prudence, or of ordinary caution. The exception to the refusal of the judge so to charge was not well taken. The sufficiency of the indictment was a question of law, to be determined by the court, with which the jury had nothing to do. It would have been error to submit any such question to the jury. The other exceptions taken upon the trial were not argued by the counsel. I have examined them, however, and find none of them well taken. The plaintiff in error, as appears from the case, had a fair trial, in which no rule of law was violated. His guilt was clearly proved, and he was in all respects rightly convicted. The judgment must be affirmed.

All concur.

Judgment affirmed.  