
    No. 536
    EARP v. STATE
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1672.
    Decided March 8, 1926
    511. FALSE PRETENSE — Where in an indictment charging false pretenses, promises are coupled with statements of past or present existing facts, and a separation can be made, the promises may be disregarded and conviction be had on the false statements.
    Attorneys — A. J. Seney, for Earp; R. R. Stuart, Pros. Atty., and Harry Levy, Asst. Pros, for State; all of Toledo.
   RICHARDS, J.

William Earp, was convicted in Lucas Com mon Pleas of obtaining $11,400 from one John Brown by false and fraudulent pretenses.

Earp, as ground for reversal, alleges thai the indictment charges no offense in that the pretenses relied on as false did hot relate to past events or existing facts, but to a future promise.

The indictment alleges in substance that the representations of Earp were that two persons, Miller and McBride, had invested a large sum of money in certain stocks, that they had due $83,000 on this investment, that the sum of $40,000 must be exhibited by them to show good faith, that this sum must be exhibited to Earp, the purported president of the stock exchange, that Brown was induced to deliver to Miller and McBride, $11,400 to help make up said $40,000 and that Brown would share in the amount due. Error was prosecuted and the Court of Appeals held:

1. Although some of the averments in the indictment are promises of something that will be done in the future, they are coupled with material representations of past or existing facts.
2. When the statements of fact and the promise relied on as constituting the crime may be separated and reliance is placed on the former, the promise may be disregarded and a conviction be had on the false statement; of fact.  