
    Ernest W. Ladd, Plaintiff in Error, vs. The State of Florida, Defendant in Error.
    1. -An indictment for procuring property under false pretenses should contain all the material facts .which the prosecutor is bound to prove, among which is the ownership of the property alleged to have been obtained by reason of such false pietenses.
    2. I(f should also contain an averment that the party was induced to part'with the ownership of such property by reason of the alleged false pretenses.
    3. Chapter 3010, section 3, of the laws of this State, approved February 17, 1877, disqualifies the officers therein named from serving on either a grand or petit jury. It is not a privilege which the ■ officer may avail himself of or not at his convenience.
    Writ of Error to the Circuit Court for Duval county.
    This was an indictment under see. 50, chap. 4, of the “Act to provide for the punishment of crimes and proceedings in criminal cases,” approved August 6, 1868, and was for procuring certain goods, wares and merchandise by false -pretenses. It was found and tried at the Fall Term, 1878, of the Duval Circuit Court, and the defendant was convicted. Motions for a new trial and also in arrest of judgment were made and denied, and the case comes up on a writ of error. The grounds upon which the motions for a new trial and in arrest of .judgment were based are contained in fifteen separate points, but as the evidence is not brought up by the bill of exceptions, it is only necessary to notice the point upon which the opinion of the court is founded, viz:
    11th. That the said indictment contained no charge or .averment of any criminal offence known to the law, or recognized, or described in any law or statute of the State of Florida.
    After motions for new trial and in arrest of judgment were denied, the defendant’s counsel further moved “to set aside and vacate the judgment, order, ruling or decision,” denying the motion for “new trial and in arrest of judgment,” and to be permitted to amend said motion to set aside the verdict and for a new trial on the grounds:
    First, “That one E. S. Francis, who was a juror duly empauelled and sworn upon the Jury which tried said cause and who served on said jury throughout said trial, and was a- member of said jury which rendered said verdict, is now’ and was, at and before the time of the drawing, empannel-led, swearing, trial and rendition of the said verdict in said cause, a regular and duly qualified County Commissioner of the said county of Duval, and that said E. S. Francis is and was at the time of the said trial and verdict disqualified by law as such County Commissioner to serve as a juror.”
    Second, “That said jury which tried and rendered the verdict in said-cause was not a lawful jury, inasmuch as the said E. S. Francis was one of the panel drawn and sworn in said caused as exhibited by the record of said cause in this, court.”
    Third, “That through the inadvertence of counsel, the fact that E. S. Francis was a member of said trial jury had escaped the memory of counsel for defendant until this day.” - • -
    To prove the facts set out in the above three grounds for this motion, the‘defendant produced to the court and offered and used -in evidence the certificate -of the Clerk of the Circuit Court and Clerk and Auditor of Duval county to the effect that the said Francis was a juror sitting upon the trial of this cause, and that he was on the days of the trial “a County Commissioner of said county, dnly commissioned and qualified as such.”
    This motion was denied by the court and the defendant was sentenced to three years confinement in the State Prison.
    
      The indictment upon which the defendant was tried is as follows:
    “The State of Florida vs. Ernest W. Ladd, indictment for obtaining goods, wares and merchandise under false pretenses.
    “Tiie grand jurors for the State of Florida duly empan-nelled and sworn diligently to inquire and due presentment make in and for the body of the county of Duval, in said Circuit, upon their oaths do present that Ernest W. Ladd, late of the County of Clay, in said State, on the first day of November, in the year of our Lord 1873, and on divers other days and times between that day and the day of the taking’ this inquisition, with force and arms within the county of Duval, and State aforesaid, unlawfully, knowingly and designedly did falsely pretend to William S. Wightman as a member of the firm of Wightman & Christopher, partners in trade of the city of Jacksonville, in said Du-val county, composed of the said William S. Wightman and John Gf. Christopher, with intent to defraud the said Wi¿ht-man & Christopher, that he, the said Ernest W. Ladd, was a member of a certain firm carrying on business at Kingsley’s Lake, in the County of Clay aforesaid, by and ilnder the name, firm and style of Ladd & Burnes, .and that the last-mentioned firm of Ladd & Burnes was then and there in solvent circumstances, and had then, to-wit: on the first day of November, in the year aforesaid, exchange op New York in the sum of fifteen hundred dollars, meaning thereby that the said firm of Ladd & Burnes had then and there good commercial paper in said sum of fifteen hundred dollars, negotiable and payable in the city of New York and State of New York, and that the said firm of Ladd & Burnes would pay the said firm of Wightman & Christopher one half of the price of the goods, wares and merchandise hereinafter named if the said firm of Wight-man & Christopher would sell to him, the said Ernest W. Ladd, the said goods, wares and merchandise, and would so, as aforesaid, pay the said one-half, that is, would pay as aforesaid about three hundred and forty-four dollars upon the delivery at Kingsley’s Lake by said Wightman & 'Christopher of the said goods, wares and merchandise, by means whereof, that is by means of said false pretenses, the said Ernest W. Ladd did then and there, in the said city of Jacksonville, on the first day of November, 1878, unlawfully, knowingly and designedly, and with the intent to defraud'the said Wightman & Christopher, obtain from the said Wightman & Christopher the following goods, wares and merchandise in the' several quantities of each different kind, and of the several values set opposite to each particular item in figures, and of the value in all of about six hundred dnd eighty-five dollars, to-wit:
    1 Box tobacco . 43. 50 $21.50
    1 Box defiance. 40 60 24.00
    
      1 Box burch . 33 80 26.40
    1 Caddy blk . 21 50 10.50
    (Here follows a long list of goods made, out in similar form, amounting in the whole to six hundred and eighty-eight dollars and fifty-one cents.)
    “Whereas in truth and in fact the said firm of Ladd & Burnes was not then and there in solvent circumstances; and, whereas, in truth and in fact the said firm of Ladd & Burnes had not at the time the said Ernest W. Ladd so falsely pretended as aforesaid the exchange on New York aforesaid, as the said Ernest W. Ladd then and there well knew, contrary to the form of the statute in such case made and provided and against the peace and dignity of-the State of Florida.”
    
      O. P. Cooper for Plaintiff in Error.
    
      The Attorney-General for Defendant in Error.
   Mr. Justice VaN Valkbnburgh

delivered the opinion of the court.

This cause comes up on a writ of error from Duval County Circuit Court. The bill of exceptions does not contain the evidence taken upon the trial, and the questions presented to this court for settlement are those arising upon the indictment and as to the disqualification of the juror Francis, and the exceptions to tlio charge of the court to the jury.

The first assignment of error is “that the court erred in refusing the motion in arrest of judgment and for a new trial made by defendant’s counsel, dated December 31st, 1878, the court erring especially in overruling the grounds set forth in said motion numbered 10 and 11, as appears by the records of said cause, the same having been good and sufficient in law to set aside the verdict in said cause.”

It is sufficient for the purposes of this case upon that question to examine the alleged error presented as No. 11 above referred to, as it appears in the record:

“That--the said indictment contains no charge or averment of any criminal offence known to the law, or recognized, designated or described in any law or statute of the State of Florida.”

In order to convict upon an indictment for this offence, it is necessary to allege* that the party, by reason'of such false pretenses, was induced to part with the ownership of his property. That is the very gist of the offence. The false representations amount to nothing, so far .as the prosecutor is concerned, unless he has been induced by them to part with something valuable.

It cannot be assumed that every alleged false statement made by the purchaser can be treated as the criminal offense for which this defendant was .indicted. It must be something more; it must have the effect to prevail on the .seller to meet the purchaser’s wishes and to consent to part With his property, and it is necessary to allege this fact in the indictment and to prove it on the trial. In this indictment there is nowhere an averment that by reason of such false pretenses he was induced or prevailed upon to sell him the goods upon the terms alleged. It does not follow but that other reasons existed for his disposing of his goods in that way.

In Commonwealth vs. Strain, (10 Met., 521,) the court say‘in their opinion, “It seems to us that when money or other property is obtained by sale or exchange of property, .effected by means of false pretenses, such sale or exchange ought to be eet.forth in the indictment, and that the false pretenses should be alleged to have been made with a view to effect such sale or exchange, and that by reason thereof the party was induced tovbuy or exchange, as the case may be.” Our statute.is copied, from Massachusetts. In Commonwealth vs. Lannan, 1 Allen, 590, Commonwealth vs. Goddard, 4 Ib., 312, State vs. Philbrick, 31 Me., 401, Schlesinger, 11 Ohio State, 669, State vs. Green, 7 Wis., 676, this rule is strictly observed.

It is nowhere alleged in the indictment that the properly which it is charged that the defendant received or, procured from the firm of Wightman & Christopher was in fact their property. This allegation is necessary and must be supported by proof. An indictment for obtaining goods by false pretenses must contain all the material facts and circumstances which the public prosecutor would be bound to prove in order to produce a conviction. (People vs. Gates, 13 Wend., 311.) This is certainly one of the material facts. The 'allegation of the ownership of the property, and proof of that ownership, is necessary to exclude the faet of the defendant’s having obtained his own goods or money, in which case there coqld be no offence unless, the prosecuting witness had some special interest in the property.

In a criminal charge Lord Mansfield says there is no lat-

,itude of intention to include anything more than is charged; the charge must be explicit enough to support itself. “A considerable degree of particularity in stating the false pretenses is necessary, because they must be proved as laid, and slight variances may be fatal to the prosecution.” (Rex vs. Plaistow, 1 Camp., 494.) If they must be proved as laid it follows that none can be proved but such as are laid. In the case of Sill vs. Regina, (English Law and Equity R., Vol. 16, p. 375,) the court held that an indictment for obtaining money, &c., by false pretenses must allege whose property the money was at the, time. The same strictness in regard to the indictment for such an offence seems to prevail in this country. Thompson vs. The People, 24 Ill., 60; The State vs. Smith, 8 Blackf’d, 489; The State vs. Vickery, 19 Texas, 326; The State vs. Lathrop, 15 Ver., 279.

The second alleged error is in the court’s denying the motion to arrest judgment and vacate the verdict for the reason that Edward S. Erancis, one of the jurors that sat in the trial of said cause, was at the time a County Commissioner of Duval County, and therefore not qualified to act as a juror. The fact of his being such County Commissioner is proved by the certificate of the Clerk of the Cir- • cuit Court, who is also Clerk and Auditor of the county, • such certificate having been used on the motion in- arrest of judgment.

The law upon the subject of disqualification of jurors in this State, approved February 17, 1877, chapter 3010, in the latter part of section three, provides that “no Sheriff or his deputies, Assessor of Taxes, Collector of Revenue, County Treasurer, County Clerk, County Judge, County Commissioners, Justices of the Peace or United States officials shall be qualified to serve upon a grand or petit jury.” This statute disqualifies a County Commissioner from- serving on a grand or petit jury. It is no privilege which the officer so drawn may avail "himself of or not at his convenience, but is equally a disqualification as is that of “persons under prosecution for a crime,” which immediately precedes it in the same section.

For these reasons, without an examination of the other errors assigned, we must reverse the judgment and the defendant must be discharged.

Judgment reversed.  