
    People of the State of New York, respondents, v. William Cook, appellant.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June, 1886.)
    
    1. Indictment—Obtaining money under false pretences, 2 Revised Statutes,' 677, § 53—Requisite allegations to constitute the OFFENSE.
    Where an indictment alleged that Cook, the defendant, with intent to cheat and defraud L., the party who was induced to part with his money, represented that a note was made hy a certain person when in fact it was not, but by another hearing the same name. Beld, that it contained all the elements of crime required hy 2 Revised Statutes, 677, § 53.
    2. Same.
    The indictment alleged that the person applied to hy defendant was induced to take the note on the credit of the person who was represented to him as the maker. The relative responsibility of the real and pretended maker was not a necessary or substantial element in the constituents of the crime and heed not he alleged in the indictment.
    3. Same.
    The provisions of the statute contain all the requisites for the substantial allegations of an offense created hy it.
    4. Evidence—What admissible.
    Evidence on the part of the prosecution in respect to the responsibility of the person represented as the maker of the note and of the person who did make it, is competent as showing the purpose and intent of the false representations. For the same reason the transaction of the giving the note and the circumstances under which it was made may he proved.
    Appeal from judgment of Cattaraugus sessions, convicting the defendant of the crime of obtaing money by false pretenses. The indictment charged that the defendant, with intent to cheat and defraud one Thomas Little, did feloniously, unlawfully and designedly falsely pretend and represent to him that a certain promissory note made by one Albert Pike for $450, payable to tlie defendant, was made by one Albert Pike who lived in a certain stone house, in the town of Concord, county of Erie, and that it was not made by a certain other man by that name residing in such town; that Little behaving such false pretences and representations, and being deceived thereby, was induced by reason of them to, and did, deliver to, and the defendant received from him $400 in money by means of such false pretenses, with the intent feloniously to cheat and defraud Little of that sum, and the alleged false pretences and representations are by suitable allegations negatived.
    The defendant was tried, convicted, and, by the judgment of the court, sentenced to imprisonment six months and to pay a fine of five hundred dollars, and to stand committed until paid, not exceeding one day for each dollar. The defendant appeals.
    
      
      Ausley & Davie, for the appellant; G. M. Rider, district attorney, for respondent.
   Bradley, J.

The defendant’s counsel moved at the trial to quash the indictment, on the ground that it did not contain the requisite allegations to constitute an offense, in that it did not allege that any one was wronged, harmed or injured by the pretenses and representations charged to have been made, although false, as it did not charge that the one .Pike was responsible and the other irresponsible. And such is the contention on the part of the defendant here. The offense is given by statute, which provides that every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property or valuable thing, upon conviction thereof shall be punished,” etc. 2 R. S., 677, § 53.

The requisites prescribed by the terms of the statute do not embrace injurious consequences as an element of the crime, further than may be implied by the fact of obtaining money or property by means of false pretenses, used with intent to cheat and defraud.

The matters alleged in the indictment would not constitute a criminal offense at common law. That required that an indictable fraud was only such as affected the public, such as resulted from the use of false weights, measures, tokens, etc. People v. Babcock, 7 Johns., 201; People v. Miller, 14 id., 371. But more than one hundred years ago the crime was extended in England, so as to embrace private frauds by statute, of which that of this state is substantially a transcript. And in the early adjudications under that of this state, the cases arising upon the English statute were frequently cited as authority. Young v. The King, 3 Durn. & E., 98 ; People v. Johnson, 12 Johns., 292.

And the cases in that country and this have been quite uniformly to the effect that the provisions of the statute contain all the requisites for the substantial allegations of an indictment for an offence created by it. People v. Genning, 11 Wendell, 18; People v. Crissie 4 Denio, 525; People v. Higbie, 66 Barb., 131; Thomas v. People, 34 N. Y., 351; Young v. The King (supra); The Queen v. Kenrick, 5 A. & E. (N. S.) 49; Reg v. Jennison, L. & C., 157, 9 Cox C. C., 158.

But the false pretenses alleged must be such that they may operate prejudicially. And if it appear that they cannot prejudice the person to whom they are applied, no offense is charged.

In People v. Galloway (17 Wendell, 540), the deed to which the signature of a married woman was thus obtained not being acknowledged by her was void and necessarily ineffectual for any purpose and could not be prejudicial to her. It was, therefore, held that the procuring of such defective execution of the deed by her by means of false pretense, constituted no crime within the statute, and see Dord v. People (9 Barb. 671). In People v. Clough (17 Wend., 351), false pretenses were used to obtain charity, and it was held that the obtaining money by the applicant for that purpose by such means was not a criminal offense, as they called upon the donor to perform a moral duty only arising out of compassion, and 'that the statute was designed only to protect persons in commercial dealings.

And in People v. Thomas (3 Hill, 169), the false pretenses induced the performance of a legal duty, and for that reason constituted no criminal offence.

In the case at bar, the representations alleged to have been made with the intent to cheat and defraud the party who was thereby induced to part with his money, were that the note presented was made by a particular person, when in fact it was not; but was made by another bearing the same name. The obtaining money by such means was clearly within the statute. The indictment contains all the elements of crime required by its provisions. And although there is no allegation that the maker of the note was less responsible than the person represented as the maker, yet they charge that the person to whom they were made was induced by the false pretences to part with his money, and that they were made with intent to cheat and defraud him. And it may be that he was prejudiced.

The purpose of the statute is to protect against imposition and not permit guilt to depend upon the uncertainty of the determination of the question whether any pecuniary injury necessarily resulted in some view which might be taken of the situation. The indictment alleges that the person applied to by the defendant was induced to take the note on the credit of the party who was represented to him as the maker. It cannot be inferred that he would have done so on the credit of the person who had, in fact, executed the note. The question of their relative responsibility was not necessarily a substantial element in the constituents of the statutory crime, and therefore it was not necessary to allege it. The motion to quash the indictment was properly denied.

The prosecution gave evidence in respect to the responsibility of the person so represented as the maker of the note, and of the person who did make it, to which objection and exceptions were taken by the defense. And it is contended that the reception of this evidence was error because those facts were not the subject of allegation in the indictment. It is true, as claimed, that all the matters essential to the offense must be alleged, and that no evidence or facts relating to it are competent except as they are in support of those allegations; that is to say, evidence will not be permitted of facts not within the matters alleged in the indictment. Barber v. People, 17 Hun, 366; People v. Gates, 13 Wend., 311. The question of intent of the defendant to cheat and defraud by the use of the representations and pretenses was one essential fact of the crime, and' this evidence was competent and proper upon that allegation of the indictment and in support of it.

The responsibility of the one represented as the maker, and the want of means of the person who was the maker of the note, if known to the defendant, went to characterize his purpose and intent in making use of the false pretenses to get the money. And it was incumbent upon the prosecution to establish by evidence the criminal intent of the defendant. Clark v. People, 2 Lans., 331; Wood v. People, 53 N. Y., 511.

It was not error to permit the maker of the note in question to testify to the transaction of the giving it to the defendant, and the circumstances under-which it was made ; and that, as part of the transaction, he also then signed and delivered to the defendant two other notes. It appears by this evidence that this person then made three notes, amounting in .all to $1,000, to do which he was supplied by the defendant with pen and ink at the saw-mill where the maker was at work; that the notes were given for mowing machine stock which he never received from the defendant; and that at the time the notes were made by him and taken by the defendant, the latter said he would take care of them, but did not state the purpose for which he intended to use the notes. The fact that the defendant obtained the two other notes was not important, but it was part of the transaction, which was a proper subject of inquiry as bearing upon the conduct and alleged intent of the defendant.

We have examined all the exceptions taken to the reception and rejection of evidence, and to the charge as made, and to the refusals to charge as requested, and think no error was presented by any of them. The charge made to the jury presented fully and fairly the propositions for their considerations, and what was required to constitute the offense. And the proposition of the request to charge made by the defendant’s counsel had been substantially covered by the charge as made.

Upon the merits the evidence was sufficient to_ justify the conclusion and verdict of the jury ; and no occasion appears for granting a new trial.

The judgment should be affirmed, and the proceeding remitted to the court of sessions of Cattaraugus county. Smith, P. J., Barker and Haight, JJ., concur.  