
    Coblentz v. State of Ohio.
    
      Indictment under Section 7076, Revised Statutes — For procuring signature to bond or note — Must allege intent to defraud — And aver material facts — Evidence of transactions previous to trial admissible, when — Transactions subsequent to trial not admissible, when.
    
    1. An indictment under Section 7076, Revised Statute's, for procuring a signature to a bond, note, or other evidence of indebtedness, must allege that the signature was secured not only by false pretense but with intent to defraud, and must aver all of the material facts necessary to be proven in order to convict, with such reasonable certainty as to advise the defendant what he may expect to meet at the trial.
    2. On the trial under such an indictment evidence of previous transactions which necessarily involve guilty knowledge by the defendant with reference to the transaction in question is admissible, but as to transactions occurring subsequent to that on which the indictment is based evidence is not admissible.
    (No. 12837
    Decided May 31, 1911.)
    Error to the Circuit Court of Miami county.
    
      At the October term, 1909, of the court of common pleas of Miami county, an indictment ■ was returned against William S. Coblentz, in which he was charged with the offense of unlawfully; and by false pretenses, procuring the signature of one Ira M. Albaugh,’ as maker, to a promissory note of the value of five thousand dollars. On the trial of the case. in common pleas at the close of the testimony offered by the state, the defendant moved the court to direct a verdict in his favor on the ground that no case had been made out by the state, and that the indictment did not charge a crime under the law. The court overruled this motion. The defendant was convicted and sentenced and this judgment was affirmed by the circuit court.’ Error is prosecuted here ’to reverse the judgments below. Other alleged errors are noticed in the opinion.
    
      Mr. Robert R. Kevin; Mr. W. A. Haines and Mr. A. C. McDonald, for plaintiff in error.
    A case almost directly similar to the one at bar with respect to the proper averment of the intent to defraud is that of Kennedy v. State, 34 Ohio St., 310.
    The procurement of Albaugh’s signature to this note was only an incident of the alleged transaction, there .being no allegation in the indictment anywhere that the signature was procured with intent to defraud.
    Other cases, tvhich are applicable as showing how the court differentiates between the two classes of offenses provided for under the first and second clauses of this' section, are Baker v. State, 
      31 Ohio St., 314, and Tarbox v. State, 38 Ohio St., 581.
    . This absence of the allegation that the signature was procured with intent to defraud is not in any way cured by Section 2223, Revised Statutes (Section 13590, General Code),' as was thought by the circuit court in passing on this case. We cannot see that this, section has any application to the facts of the case at bar. Drake v. State, 19 Ohio St., 211.
    The court erred in admitting testimony of certain alleged similar transactions.
    A case that • is squarely on all fours with the case at bar, as to our second proposition, above stated, is that of State v. Letourneau, 24 R. I., 3.
    Evidence was admitted that within a week after a prisoner had made certain false representations,he made false representations of a similar nature to another, and on these second false representations he secured from this other party money. Reg v. Holt, 8 Cox Crim. Law Cases, 411; 3 Rice on Crim. Evidence, 207, 215; Shulman et al. v. State, 14 Hun., 516, 76 N. Y., 624.
    So in the case at bar, we claim that there are many things which might have permitted the defendant to have made certain statements to Dr. Pearson and others in June, which would throw no light upon his guilty knowledge or intent during the .month of March previous to the time when this indictment alleges these false representations were made.
    To the same effect also is Morgan v. State, 56 Neb., 696, where the court holds that the admission of such testimony was not competent at all.
    
      This testimony, it seems to us, was highly prejudicial to the defendant, as the court holds in' the case of Ferrer v. State, 2 Ohio St., 75. Jackson v. People, 126 Ill., 149.
    
      Mr. J. Guy O’Donnell, prosecuting attorney, and Messrs. E. H. & R. A. Kerr, for defendant in error.
    The sixth error relates to the admission of similar representations on the part of the plaintiff in error to other parties relative to the same class of transactions at or near the date of the representations set out in the indictment.
    Whenever scienter or guilty knowledge niust be * proved to sustain the charge the class of evidence complained of is competent.
    It is held by text-writers to be an. exception to the general rule, but competent whenever scienter or guilty knowledge must be proved. Gillett’s Indirect & Collateral Evidence, 76; People v. Sharp, 107 N. Y., 427, 14 N. E. Rep., 319, 1 Am. St. Rep., 851, which on examination we find to be a leading case on this subject; 1 Wharton’s Crim. Law, Secs. 631a, 633, 634, 649.
    The above principle is well settled in Ohio.
    The trial court in the trial of the case and also in overruling the motion for a new trial relied on Tarbox v. State, 38 Ohio St., 581, which thoroughly supports the decision of the court. This • was nót a new proposition at that time. It had ' previously been recognized in the following cases: Hess v. State, 5 Ohio, 5; Jackson v. State, 38 Ohio St., 585; Reed v. State, 15 Ohio, 217; Edwards v. 
      Owen, 15 Ohio, 500; Shriedley v. State, 23 Ohio St., 130; Brown v. State, 26 Ohio St., 176; Bainbridge v. State, 30 Ohio St., 264; Lindsey v. State, 38 Ohio St., 507.
    Since the trial of this case, this exact proposition has been before and decided by this court and is reported in Boyd v. State, 81 Ohio St., 239, and is beyond question decisive of this objection in the petition in error.
    We further desire to call the court’s attention to. the fact that in Jackson v. State, 38 Ohio St., 585; Brown v. State, 26 Ohio St., 176, and Bainbridge v. State, 30 Ohio St., 264, the state was in each instance permitted to prove subsequent acts to show .intent.
   Johnson, J.

The indictment is founded on Section 7076, Revised Statutes, which relates to obtaining money, etc, by false pretenses. There are defined in the section three different offenses. First obtaining by any false pretense with intent to defraud, anything of value from another; second, procuring by any false pretense,. with intent to defraud, the signature of any person as maker, endorser, etc, of any bond, note, or other evidence of indebtedness, and third, selling, or offering to sell, any such instrument, knowing the signature to have been obtained by false pretenses. The indictment in this' case, it is conceded, was intended to describe an offense included in the second class. It alleges that said Coblentz, on the 7th of March, 1907, in said county of Miami and state of Ohio, then and there being, unlawfully did falselv pretend, with intent to defraud to one Ira M. Albaugh, that the Gem City Acetylene Generator Company, a corporation located with its principal place of business at Dayton, Ohio, was solvent and entirely out of debt and did not owe any man a dollar. And proceeding, alleges that he pretended that the company was doing an excellent business and making sufficient money to pay the expenses of the company and declare dividends of 20 per cent, on the capital stock; that it had paid 20 per .cent, dividends and then had on hands a sufficient surplus of net earnings to pay a 20 per cent, dividend, but that the money was needed in the business, and that he, Ira M. Albaugh, would receive his equal proportion thereof the same as if he had been a stockholder at the time the dividend was earned, and further, that he represented that he was selling stock of the company for the purpose of procuring funds to increase the output and then sets out the names of some of those to whom he pretended to have sold stock. And further, that every dollar that was paid on stock so sold by him had been, and would be, expended by the company in the increase of its business whereby the earnings could be greatly increased from those aforesaid, by which said false pretenses the said William S. Coblentz then and there did unlawfully procure the signature of the said Ira M. Albaugh, as maker, to a promissory note of the value of five thousand dollars, and then sets out a copy of the note. The indictment then proceeds to allege that in truth and fact said company was not solvent, and .was not out of debt,' but on the contrary its indebtedness was much in excess of its assets and a statement from the books of the company is set out in the indictment in support of this allegation. The indictment then proceeds to set out facts showing that the company was largely indebted to other parties, naming them, and that this indebtedness in the aggregate exceeded the available assets of the company, and alleges that it was not then doing an excellent business, or even a good business and had never made any money, and was then actually losing money, and that all of these facts were well known to William S. Coblentz at the time he made the statements heretofore referred to. The indictment contains a further allegation that the five thousand dollars paid by the said Ira M. Albaugh was not expended by the company in the increase of the company’s business, but alleges that it was paid part to Coblentz, and part on then existing indebtedness of the company, and concludes with the allegation that said William S. Coblentz at the time he so falsely pretended, as aforesaid, well knew the said false pretenses to be false, he being the general manager of the said company on said 7th of March, 1907, and had been for more than one year prior thereto.

When tested by well settled rules, does this instrument meet the requirements of a valid indicL ment ? A criminal charge should be preferred with such certainty and precision as will reasonably apprise the party charged of that which he may expect to meet and be required to answer, and so that the court and jury may know what they are to try, and the court may determine without unreasonable difficulty what evidence is admissible; also that the record to be made will be sufficiently definite to make it clear of what-the party has been put in jeopardy. Dillingham v. State, 5 Ohio St., 280; Du Brul v. State, 80 Ohio St., 52. And an indictment for procuring a signature to a promissory note by false pretenses, with intent to defraud, under Section 7076, should allege that the signature was secured not only by false pretenses, but with intent to defraud. Where a statute makes a certain intent an element of the offense, that intent must be averred directly, and specifically, in the indictment, by proper affirmative allegation. Drake v. State, 19 Ohio St., 211; Kennedy v. State, 34 Ohio St., 314-316; State v. Daniels, 90 Ia., 491; Marshall v. State, 31 Tex., 471; 19 Cyc., 436; 2 Wharton’s Criminal Law (10 ed.), Sec. 1226.

'First: It must be noted that this indictment contains no averment that there was any attempt to induce Albaugh to purchase stock in the company; there is no allegation in the indictment that Albaugh ever did purchase stock in the company. And although there is an averment that “the five thousand dollars paid, by Ira M. Albaugh was not expended by the company in the increase of the company’s business;” there is no direct allegation that he ever did pay five thousand dollars to the company or if he did whether or hot he paid it in payment of the note to which his name was signed and secured as alleged. There is no allegation that Albaugh was induced to sign the note on the understanding that he was to receive anything therefor. So that so-far as appears by the indictment nothing was held out tb Albaugh which he was to' receive in consideration of or ' as an inducement to his signing that note. It must be remembered that the charge is not that he obtained by false pretenses, with intent to defraud, five thousand dollars or any other thing of value from Albaugh, but that he procured the signature of Albaugh to a promissory note of the value of five thousand dollars.

As was said by the court in Tarbox v. The State, 38 Ohio St., 583, “the provision of the section concerning the procuring of a signature was intended to cover an entirely different class of offenses; a good illustration of which would be the case of one who should present to another, with a request that he should sign it, a paper falsely represented to be a certificate of character, a subscription paper, or the like, whereas the paper is, in reality, a promissory note or check, or bill of sale.” Now, there is no allegation in this indictment that the note to which Albaugh’s signature was procured was not what it had been represented to him to be. The inference here is that the signature to .the note was an incident of, and not the end in fact sought, or to which the pretense related. There is no allegation whatever that the defendant, or the company, ever received anything of value on account of the note, or that they ever promised to Albaugh that they would give him anything of value in return for it, or that Albaugii expected to receive anything of value in return for his signature to the note. The important matter is that the false pretense or false representations .as to the business and the financial condition of the company are not shown by the indictment to have had any connection with the giving of the note. ' No consideration for it is stated. So far as any direct averment is concerned the note may have been given for a loan. It is only from indirect averments that one may infer that it was given for stock. Second: It will be observed that the allegation in the indictment as to the procuring of the note is as follows: “by which said false pretenses the said William S. Coblentz then and there did unlawfully procure the signature of the said Ira M. Albaugh as maker, to a promissory note of the value of $5,000.00 which said promissory note was in the words and figures following.”

There is no allegation that the signature was procured with intent to defraud. The intent to defraud is specifically made an essential element in the crime by the statute, and under the authorities above given it is necessary that the indictment should aver that the signature was procured with intent to defraud. It is true that in the first part of the instrument there is a general averment that the defendant did unlawfully and falsely pretend with intent to defraud to one Ira M. Albaugh, etc., but as already shown there is no connection between those allegations, and the allegations later on in the indictment as to the procuring of the signature of Albaugh.

In Drake v. State, 19 Ohio St., 211, the rule is stated as follows: “An intent to prejudice, damage or defraud is an essential ingredient in the crime of forgery, and an indictment for that crime must therefore charge such an intent directly and specifically, and a mere statement of such an intent in the conclusion of such an indictment by way of deduction or inference from' the' facts previously found is not sufficient.” And also in Commonwealth v. Dun, 110 Mass., 64.

It is insisted by counsel for the state that Tarbox v. State, 38 Ohio St., 581, supports their con1 tention as to the sufficiency of this indictment. The charge in that case was obtaining a check by false pretenses.

The court held that a check was a thing of value within the meaning of the first clause of Section 7076, and that the indictment could be properly laid under that clause. But the court points out that in that section there are three distinct classes of crime, described, and that under Section 6794, Revised Statutes, “anything of value” shall include “a check or bond given for payment of money.” The court then state that the clause “concerning the procuring of a signature was intended to cover an entirely different class of offenses.”

In this case the averment is that it was the signature that was secured.

In Kennedy v. State, 34 Ohio St., 310, which was a case where B,' a county auditor, fraudulently issued an order on the county treasurer in favor of A, and received payment thereof on the false pretense that he was authorized by A, to do so, while in fact as he well knew A had no claim against the county, the court after a full examination and discussion of the averments of the indictment say at page 316: “If the indictment had contained the averment that Kennedy by means of false pretenses obtained the check from House with intent to defraud it would have been sufficient, but it contained no such averment.”

We feel forced to the conclusion, that this indictment does • not state the nature and cause of the accusation against defendant so as to directly and specifically advise him of what he must prepare to meet.

It does not meet the requirements of well-settled rules or secure to him the constitutional safeguard of the right to demand the nature and cause of the charge against him.

It is contended by plaintiff in error that the trial court erred in the admission of testimony as to similar transactions and statements by defendant to others. Some of these statements and transactions occurred before and some subsequent to the time the alleged false representations were made to Albaugh, to-wit: March, 1907. The trial court admitted the testimony on .the ground as stated in the charge; that the law of this state permits evidence of similar transactions to go to the jury for the sole purpose of throwing what light they may on the intent and knowledge of the party making the representations.

We think this is correct as to those transactions which occurred prior to the one in question.

In Tarbox v. State, 38 Ohio St., 584, the court say: “The decisions are uniform to the effect that where scienter .is an element of the crime charged previous offenses necessarily involving such guilty lcnowledge are admissible.”

As to those transactions which occur subsequent to the one in question, the weight of authority and of reason is against the admissibility of the testimony. Any other rule would widen the scope of the inquiry beyond bounds within which defendant could fully prepare his defense. State v. Letourneau, 24 R. I., 3; Shulman v. State, 76 N. Y., 624; Jackson v. People, 126 Ill., 149.

There are some other assignments or error, but we do not find it necessary to consider them in this opinion.

The judgments below will be reversed and defendant discharged.

Judgments reversed.

Davis, Price and Donahue, JJ., concur.  