
    Horton v. The State of Ohio.
    
      Obtaining property by false pretenses — Section 7076, Revised Statutes — Indictment must be certain and precise — No defense to indictment that money obtained was unlawful.
    
    1. An indictment under Section 7076, Revised Statutes, for obtaining money by false pretenses must set forth the alleged false pretenses with such certainty and precision as will reasonably apprise the defendant of what he will be required to answer, and so that the court may determine what evidence is admissible and must allege that the pretenses were in fact false and made with intent to defraud.
    2. It is no defense to an indictment for obtaining money by false pretenses that the transaction in which the money was so obtained was unlawful.
    (No. 12919 —
    Decided October 31, 1911.)
    Error to the Circuit' Court of Mercer county.
    At the October term 1909 of the court of common pleas of Mercer county the grand jury returned an indictment against John Horton for obtaining money under false pretenses from one Frank Linneman. Omitting formal parts the indictment is as follows: “That John Horton unlawfully did falsely pretend with intent to defraud one Frank Linneman, that he was selling counterfeit money; by which said false pretenses the said John Horton, then and there unlawfully did obtain from said Frank Linneman sixty-five dollars in money, of the value of sixty-five dollars, of the personal property of said Frank Linneman; whereas in truth and in fact said John Horton was not selling, and had no intention at said time to sell and deliver any counterfeit money; and said Horton at the time he so falsely pretended as aforesaid well knew the said false pretenses to be false.”
    A motion to quash and a demurrer were filed to this indictment and were overruled.
    On the trial at the close of the state’s case the defendant interposed a demurrer to the evidence and moved the court to instruct the jury to return a verdict for defendant. This was also overruled. The defendant was convicted and sentenced.
    On error to the circuit court this judgment was affirmed and error is prosecuted here to reverse the judgments of the courts below.
    
      Mr. John E. Egan; Mr. George W. Mannix, Jr., and Mr. Robert R. Nevin, for plaintiff in error.
    The indictment does not state that the false pretenses were in fact false. 19 Cyc., 394; People v. Reynolds, 71 Mich., 343; People v. Behee, 90 Mich., 356.
    The alleged false pretenses are not properly made and negatived by specific and special averments. Ellars v. State, 25 Ohio St., 385; Winnett v. State, 18 C. C., 515, 62 Ohio St., 650; Reg. v. Kelleher, 14 Cox C. C., 48; 2 Wharton on Crim. Law (10 ed.), Section 1167; People v. Blanchard, 90 N. Y., 314; 12 Am. & Eng. Ency. Law (2 ed.), 811; Commonwealth v. Drew, 19 Pick., 179; State v. DeLay, 93 Mo., 98; State v. Peacock, 31 Mo., 413.
    The indictment must show that the prosecuting witness relied upon the false representations set out in the indictment, and that the same were the motive or the cause for his paying the money. Schleisinger v. State, 11 Ohio St., 669; Redmond v. State, 35 Ohio St., 83; 2 Wharton Crim. Law (10 ed.), Section 1175; State v. Metsch, 37 Kans., 222; State v. Lemon, 46 Mo., 375; Winnett v. State, 10 O. C. D., 245; People v. Gates, 13 Wend., 311; Johnson v. State, 11 Ind., 481; State v. Benson, 110 Mo., 18.
    According to the indictment, the facts represented, if true, would have been of no pecuniary advantage to the prosecuting witness, as counterfeit money is nothing. 1 McClain’s Crim. Law, 667; People v. McAllister, 49 Mich., 12; People v. Morphy, 100 Cal., 84.
    The alleged false representations according to the indictment were such as no man had the right to rely upon, and in the absence of any alleged disability on the part of the prosecutor, they are not sufficient to sustain a conviction. Buckalew v. State, 11 Tex. App., 352; In re Schurman, 40 Kans., 542; State v. Ripley, 31 Me., 386; Commonwealth v. Grady, 76 Ky. (13 Bush), 285; Chapman v. State, 2 Head (Tenn.), 36; Commonwealth v. Barker, 8 Phila., 613; Commonwealth v. Warren, 6 Mass., 72; State v. Cameron, 117 Mo., 642; Roberts v. State, 39 Tenn. (2 Head), 501; Bonnell v. State, 64 Ind., 498; State v. Estes, 46 Me., 150; Burrow v. State, 7 Eng. (Ark.), 65; 23 Cent. Dig., 672; Commonwealth v. Hutchinson, 2 Par. Eq. Cas., 309; In re False Pretenses, 9 O. Dec., 825.
    Therefore, if the plaintiff in error agreed to deliver nothing, and in the eyes of the law that is exactly what the charge in the indictment states, he certainly is not guilty if nothing was delivered. Foster v. State, 68 S. E. Rep., 739.
    The indictment shows a common criminal design. Commonwealth v. Hermon, 15 Phila., 386; Anonymous, 10 O. D. Re., 649; 23 Cent. Dig., 670.
    We contend that the indictment in this case shows clearly and convincingly, that the prosecuting witness and Horton were engaged in a transaction that was criminal in its nature, and they had a common design, and acted in pursuance of said criminal design; and that under the laws of Ohio the transaction, detailed by the indictment in this case, does not constitute an indictable offense, and especially not under the statute making the obtaining of anything of value under false pretenses a crime. Anonymous, 10 O. D. Re., 649, 22 22 W. L. B., 371; State v. Crowley, 41 Wis., 271; McCord v. People, 46 N. Y., 470; People v. Livingstone, 47 N. Y. App. Div., 285, 62 N. Y. Supp., 9; People v. Tompkins, 186 N. Y., 413; Foster v. State, 8 Ga. App., 119; State v. Burnett, 119 Ind., 592; Chapman v. State, 2 Head (Tenn.), 36; Commonwealth v. Warren, 6 Mass., 72; State v. Simpson, 10 N. Car. (3 Hawks), 620; Commonwealth v. Barker, 8 Phila., 613; Miller v. State, 73 Ind., 88; Commonwealth v. Hickey, 1 Clark, 436, 3 Pa. Law, 86; 19 Cyc., 405, 412; In re Fitzpatrick, 21 C. C., 519; People v. Wilson, 6 Johns., 320; People v. Clough, 17 Wend., 351; People v. Stetson, 4 Barb., 151; State v. Riley, 65 N. J. L., 192; People v. Klock, 106 N. Y. Supp., 267.
    
      If it is true as we claim that the representation relied upon in this case was a promise to do something in the future, then there is no question of course, but what the state failed to make out was a legal case of obtaining money by false pretenses. Dillingham v. State, 5 Ohio St., 280; Winnett v. State, 18 C. C., 515; State v. Petty, 119 Mo., 425; Commonwealth v. Hutchinson, 2 Par. Eq. (Pa.), 309; State v. Magee, 11 Ind., 154; Scarlett v. State, 25 Fla., 719; Ryan v. State, 45 Ga., 128; People v. Miller, 169 N. Y. 339.
    
      Mr. John G. Romer, prosecuting attorney, for defendant in error. ■
    The object and purpose of an indictment is that the accused may have notice of what he is to meet; of the act done, which it behooves him to controvert. The question is, does the (defendant) plaintiff in error know what the state is talking about? Does he know the time, place, etc. Carper v. State, 27 Ohio St., 576; State v. Toney, 81 Ohio St., 130; Pontius v. People, 82 N. Y., 339; Joyce on Indictments, Secs. 251, 338, 371; Clement v. United States, 149 Fed. Rep., 305; Commonwealth v. Hulbert, 12 Metc. (Mass.), 446.
    It is to be observed that the language of the statute is, “any false pretenses.”
    In the construction and interpretation of statutes, both civil and criminal, the word “any” is construed as a term of inclusion; and is given the full force of “every” or “all.” 1 Bouvier’s Law Dict., 147; 2 Am. & Eng. Ency. Law (2 ed.), 414; Lovell v. State, 48 Tex. Crim., 85; Johnson v. So. Pac., 196 U. S., 1; Church v. United States, 143 U. S., 457; McMurray v. Brown, 91 U. S., 257; 1 Words & Phrases, 42; State v. Antonio, 2 Tread. (S. Car.), 776; Ex parte Neet, 157 Mo., 527; 2 Bishop’s New Crim. Law, Secs. 433, 436; Bartlett v. State, 28 Ohio St., 669; Lefler v. State, 153 Ind., 82; Bowman v. State, 45 So. Rep., 308; Musgrave v. State, 133 Ind., 307; Gilmore v. People, 87 Ill. App., 128; Bowen v. State, 9 Baxt. (Tenn.), 45; People v. Cole, 65 Hun, 624; 2 Wharton Crim. Law (10 ed.), Secs. 1188, 1192.
    Therefore, since the law was designed to protect the weak, the inexperienced and the credulous as well as the strong, experienced and prudent, the only test to determine the sufficiency of a false pretense is by its effect.
    We believe, therefore, that the pretense set out in the indictment is sufficient, because such pretense was made with intent to defraud and actually did defraud. The proofs fully sustain the allegations, and conclusively show that Horton did make the said false pretenses knowingly and that Linneman believed them and parted with his money. In re Cummins, 16 Colo., 451; 2 Bishop’s Crim. Law, Sec. 469; Hughes’ Crim. Law & Pro., Sec. 624; People v. Martin, 102 Cal., 558; People v. Watson, 75 Mich., 582; Commonwealth v. O'Brien, 172 Mass., 248; People v. Lennox, 106 Mich., 625; People v. Ward, 5 Cal. App., 36; People v. Smith, 84 Pac. Rep., 449; Commonwealth v. Henry, 22 Pa. St., 253.
    
      If the indictment charges a crime, the verdict is not contrary to law and same is sufficient, as a general verdict of guilty provided it is supported by sufficient evidence. Thomas v. State, 16 S. E. Rep., 94; State v. Haines, 23 S. Car., 170; 12 Am. & Eng. Ency. Law (2 ed.), 811; State v. Dowe, 1 Am. Rep., 271; Underhill on Crim. Evidence (2 ed.), Sec. 439; Morris v. State, 54 Fla., 80; State v. Tripp, 113 Ia., 698; State v. Montgomery, 56 Ia., 195; Holton v. State, 109 Ga., 127; Dillingham v. State, 5 Ohio St., 280.
   Johnson, J.

Defendant contends that the indictment is defective in that it is indefinite and does not sufficiently set forth the alleged false pretenses and does not allege that the pretenses were in fact false, and further that the indictment does not charge a crime under the law.

This court has many times declared that a criminal offense must be charged with reasonable certainty in the indictment so as' to apprise the defendant of that which he may expect to meet and be required to answer; 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. And an indictment for obtaining money or property by false pretenses must aver all of the material facts necessary to be proven in order to convict, and that the false pretenses were false in fact and induced the owner to part with his property. Dillingham v. State, 5 Ohio St., 280; Schleisinger v. State, 11 Ohio St., 669; Du Brul v. State, 80 Ohio St., 52; People v. Behee, 90 Mich., 356.

First. It will be noted that this indictment contains no averment that there was any attempt by Plorton to induce Linneman to purchase any counterfeit money, or that Linneman did purchase any such money. There is no allegation that Horton sold or agreed to sell or deliver any counterfeit money or any other thing to Linneman by which Linneman was induced to and did pay him the $65.00.

In Schleisinger v. State, 11 Ohio St., 669, the court say at page 673: “There is however no colloquium set forth in the indictment showing a negotiation between the parties and that the representations and pretenses were made with intent thereby to obtain from said Woods and Pew any goods whatsoever.”

The important matter is that there is no allegation of any transaction, contract or negotiation in which, by reason of the false pretenses referred to, Horton obtained the money from Linneman.

On the trial the prosecuting witness described the transaction in question and testified that defendant told him he was selling counterfeit money three for one, and that he Linneman gave defendant $65.00 for which defendant promised to give him $300.00 counterfeit money in eight days.

As pointed out already the indictment charges only that defendant falsely pretended that he was selling counterfeit money. It is not alleged that he pretended to have counterfeit money or that he was delivering it. But according to the testimony of the prosecuting witness that pretense was not a false pretense because he was then selling and did sell to him counterfeit money to be delivered at a future time.

The promise to deliver the counterfeit money at a future time could not be made the basis of a conviction for crime. Dillingham v. State, 5 Ohio St., 280; State v. Petty, 119 Mo., 425; Commonwealth v. Drew, 19 Pick., 179; People v. Miller, 169 N. Y., 339.

Plaintiff in error challenges the indictment on two other grounds:

1. That the false representations averred in the indictment were such as no man had the right to rely on and that in the absence of any alleged disability on the part of the prosecutor they are not sufficient to sustain a conviction.

2. That there was a common criminal design between the parties.

Many decisions are cited by the parties in support of their respective views of these questions and they disclose much conflict of authority.

As to the first proposition there are cases which hold that where the pretense is absurd or irrational, and the prosecutor had at the time the means of detection, such pretense is not within the law of crimes.

It would not be profitable here to discuss these cases in detail. We agree with the view that many of such holdings have gone too far. The weak and feeble have equal rights with the strong.

The careless or unwary are entitled to the protection of these false pretense statutes as well as of all other statutes. Most people think the fanciful story of a confidence man who sells a gold brick is absurd and should carry its own refutation, but many inexperienced, unwary but honest men have been caught by it and no one would think the offense was not an indictable one.

The second of the above contentions presents a different question and one as to which there is a diversity of decisions. Can there be a conviction for obtaining money by false pretenses when the transaction, on the part of the person from whom the money is obtained, would have been unlawful if the representations of the defendant had been true, or if one pretends to be engaged in the commission of a particular crime, when in fact he is not so engaged, can he be convicted for obtaining money by false pretense, from one who desired to participate in.the same crime and who parted with his money in that behalf?

In McCord v. People, 46 N. Y., 470, the accused falsely pretended to be an officer with a warrant to arrest the prosecuting witness, and he thereby induced the witness to deliver to him certain property. The court held that the prosecutor parted with his property as an inducement to a supposed officer to violate the law and his duty and that the indictment could not be sustained. The court say at page 472: “Neither the law, or public policy designs the protection of rogues in their dealings with each other, or to insure fair dealing and truthfulness, as between each other, in their dishonest practices. The design of the law is to protect those who, for some honest purpose are induced, upon false and fraudulent representations, to give credit or part with their property to another, and not to protect those who for unworthy or illegal purposes, part with their goods.”

This case has been followed in a number of New York cases and in some other jurisdictions. People v. Klock, 106 N. Y. Supp., 267; People v. Stetson, 4 Barb., 152; People v. Tompkins, 186 N. Y., 413; State v. Crowley, 41 Wis., 272; Foster v. State, 8 Ga. App., 119. State v. Crowley and Foster v. State were cases in which the false representations were made in transactions for the sale of counterfeit money. The court in Foster v. State say: “This, case is also to be distinguished from those cases in which the defendant, by imposing upon the credulity or weak-mindedness of the prosecutor has caused him to pay money for something which could not be of value, but which the prosecutor was led to believe was in fact so. In such cases a prosecution for cheating and swindling may lie. But in this case, the prosecutrix acted with her eyes open; she admitted that she knew that the money she was to get would not be good money.”

A different rule has been adopted in a number of states. Generally stated, the rule in those states is, that, it is no defense to an indictment for obtaining money under false pretenses that the transaction in which the money was paid was illegal. Commonwealth v. O’Brien, 172 Mass., 248; People v. Martin, 102 Cal., 558; People v. Watson, 75 Mich., 582; Lovell v. State, 48 Tex. Cr., 85; In re Cummins, 16 Colo., 451; Commonwealth v. Henry, 22 Pa. St., 253; 2 Bishop Crim. Law, Sec. 469.

In Commonwealth v. O’Brien, 172 Mass., 248, after a discussion of the different views taken of the question the court say: “With the greatest respect for the New York and Wisconsin courts we think this end is more effectually reached if we do not read into the absolute words of the statute an implied exception, which allows a knave to cheat any one out of his money, if the knave can succeed in persuading his victim into a scheme, which has any technical illegality on the victim’s side. The question of allowing the latter a personal remedy is entirely different.”

In People v. Tompkins, 186 N. Y., 413, defendant induced one Felix to part with a large sum of money on the false representation that defendant as an employe of the Western Union Telegraph Company had means of obtaining advance information as to results of horse races, which were being betted on in a certain pool room. Felix went to the pool room and made a bet on a certain horse falsely named as winner. The court while yielding to the authority of McCord v. People and of what it states to be a firmly established rule in that state, yet questions the soundness of. the rule and in its syllabus suggests the “alteration of the rule to the legislature.” In the opinion it is stated that the rule is at variance with a more reasonable view and the decisions in at least twelve states.

The primary object sought to be accomplished in prosecutions for crime is the suppression of crime. The effort is one to protect the public and prevent wrongdoing.

If it were a civil proceeding of course where the injured person is a party to the unlawful enterprise he would not be heard to complain and the law would leave the parties where it finds them.

There is a natural feeling that, where two persons are co-offenders, it is unjust that one should be punished and the other not, especially that one should be permitted to invoice the aid of the courts to punish his confederate while he escapes himself. But the dissatisfaction should be, not that one is punished, but rather that the other is not. It is no argument in favor of either that the other equally deserves conviction.

The statute of Ohio, Section 7076, Revised Statutes, which denounces obtaining money or property by false pretenses, is broad and complete. “Whoever, by any false pretense, with intent to defraud, obtains from any person, any thing of value.”

Shall we read into this criminal statute the principle of civil jurisprudence which requires the complaining party to come into court with clean hands and thus deny to the state (in the effort to prevent wrongdoing) the equally sound principle of criminal law that the guilt of one man shall not be received as an excuse for that of another. We think to so hold would in some degree throw around crime the protection of the law.

If a sharper working a confidence game or a scheme to obtain money by false pretenses could weave into his tricky negotiation some element which is unlawful and criminal he could hold it over the head of his victim and could call it to his aid in escaping prosecution.

However for the reasons already given in this opinion we feel forced to the conclusion that the indictment in this case does not state the accusation against defendant in such a manner as to directly and specifically advise him of what he must prepare to meet and that it does not meet the requirements of well-settled rules so as to secure to him the constitutional safeguard of the right to demand the nature and cause of the charge against him, and therefore the motion to quash and the demurrer should have been sustained.

For error in overruling, the judgments of the courts below are reversed.

Judgments reversed and judgment for plaintiff in error.

Spear, C. J., Davis, Shauck, Price and Donahue, JJ., concur, in the judgment. Davis, J., dissents to second proposition of syllabus.  