
    No. 337
    STATE v. JOSEPH
    No. 19563.
    Supreme Court
    On motion to file petition in error.
    Dock. Jan. 12, 1926;
    4 Abs. 56.
    333. CRIMINAL LAW — When crime of obtaining money by false pretenses is charged, and indictment (629) does not charge “with intent to defraud,” is this such an essential element as to render the indictment defective?
   Henry Joseph was indicted by the grand jury of Hamilton County for the obtaining of money by false pretenses. Trial was had in the Common Pleas Court and following his conviction of the crime, he filed a motion for á new trial and motion in arrest of judgment. Under the first motion, the claim of variance was made and the second was based on the claim that the indictment did not make out a charge against him.

Note — OA. opinion will be found in 4 Abs.

Attorneys — Chas. S. Bell, Pros. Atty., and Dudley M. Outcalt, Asst. Pros. Atty., for State; A. R. Hoffman and L. A. Burke for Joseph; all of Cincinnati.

The motions were refused and Joseph was sentenced. On error, however, the Court of Appeals reversed the judgment below on the authority of State v. Mutchler, 87 OS. 268. Said court held that failure of the indictment to specifically set forth that there was “intent to defraud” made the indictment defective.

On petition in error in the Supreme Court, the State claims that “courts today do not fav- or the technical defects which are the basis of the old common law of criminal practice”, and that “defects should-he attacked before trial and the policy of waiting until later is not favored.”

It is claimed that to plead the essential elements of a crime makes the indictment sufficient. Also when a criminal charge is preferred with such certainty and precision as will readily apprise the party charged with that which he is required to answer, the court and jury with what they are to try, when the language is such that the court may determine what evidence is admissible, and the record may make it clear of that which the party has been placed in jeopardy, the indictment is good. 80 OS. 64.

It is further claimed that under the curative section of the Code, 13581 GC. et seq., the indictment is good. The statute in question provides in part that “an indictment shall not be invalid----for other defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits.”  