
    [Crim. No. 153.
    Department One.
    October 6, 1896.]
    THE PEOPLE, Appellant, v. JAMES H. CUMMINGS, Respondent.
    ■Criminal Law—Obtaining Property by False Pretenses—Construction of Code—Land not Included in Offense.—An information of the crime of obtaining property by false pretenses, under section 532 of the Code, which describes the property charged to have been thus obtained as certain parcels of land, states no offense, under that section, which, in view of the history of the crime, and of the contemporary construction given to statutes of like purpose and effect in England and the United States, was not designed to include an instance of defrauding another of real estate, but was designed and aimed solely at protecting personal property, and in aid of the laws against larceny.
    Appeal from a judgment of the Superior Court of the City and County of San Francisco. George H. Bahrs, Judge.
    The facts are stated in the opinion of the court.
    
      W. F. Fitzgerald, Attorney General, and W. H. Anderson, Assistant Attorney General, for Appellant.
    
      E. M. Morgan, and Severance & Sherman, for Respondent.
   Van Fleet, J.

Defendant was accused by information of the crime of obtaining property by false pretenses, under section 532 of the Penal Code—the property-charged to have been obtained being described as two-certain parcels of land. He demurred to the information as not stating an offense. The demurrer was sustained, and the people appeal, the sole question being whether land is such property as to be the subject of the-offense sought to be charged.

We think the demurrer was properly sustained. Looking at the history of the offense, and the evil which-it has always been designed to correct, and regarding as we must the contemporary construction given to-statutes of like purpose and effect, both in England and the United States, we are satisfied that the provision of the code was not designed to include an instance of defrauding another of real estate, and, consequently, that-the information did not charge an offense thereunder.

The language of the code defining the offense is: Every person who knowingly and designedly by false or fraudulent representation or pretenses defrauds' any, other person of money or property, or who causes or procures others to report falsely of his wealth or mercantile character, and by thus imposing upon any person obtains credit, and thereby fraudulently gets into-possession of money or property, is punishable in the same manner and to the same extent as for larceny of the money or property so obtained.”

Similar provisions,- varying slightly in verbiage, but having a common purpose, are to be found in the statutes of every state of the union, so far as our investigation extends, and like their English .prototypes, the earliest of which is 30 George II, chapter 24, section 1, are the outgrowth and expansion of the old offense of “cheats” or “cheating” as it existed at the early common law proper, and later under the statute of 33 Henry VIII, sections 1, 2, “which,” as suggested by Mr. Bishop, “is common law with us.” These later statutes have been enacted, Mr. Bishop tells us, “to-supply defects in the earlier law, which as trade increased was plainly seen not to go far enough in the-protection of fair dealing against knavery.” (2 Bishop’s New Criminal Law, section 410.) ! Cheating at common law was a fraud perpetrated by means of a false symbol or token, such as selling goods by false weights or measures, or other like act or thing of a character calculated to deceive and defraud the public or the individual to their pecuniary injury, and against which ordinary prudence could not guard. The inadequacy of this offense to meet the demands of advancing methods of trade arose in part from the fact that it did not embrace any act or thing accomplished without the aid of some false token. Mere spoken lies or misrepresentations, or verbal perversions of the truth of whatsoever nature, employed to defraud, did not constitute the offense; and it was in part to remedy this defect or omission that the statutes creating the offense, of false pretenses were enacted, and which, by reason of their wider comprehension of the arts and methods of cheating, have largely superseded the common-law offense."] (2 Bishop’s New Criminal Law, secs. 143-45; 1 Bishop’s New Criminal Law, sec. 571.)

In their origin both the common law and statutory offenses were undoubtedly designed and aimed solely at protecting personal property, and in aid of the laws against larceny and theft. Indeed, they appear to have sprung into being largely by reason of certain defects, in the application of the laws against larceny. Among; the reasons stated in the statute (33 Henry VIII) for-enlarging the offense of cheating are that “many light and evil-disposed persons, not minding to get their living by truth, etc., but compassing and devising daily how they may' unlawfully obtain and get into their hands and possession goods, chattels, and jewels of other persons for the maintenance of their unthrifty living; and also knowing that if they came to any of the same goods, chattels, and jewels by stealth, then they, being thereof lawfully convicted, etc., shall die therefore— have now of late falsely and deceitfully- contrived, devised, and imagined privy tokens and counterfeit letters in other men’s names, unto divers persons their special friends and acquaintances, for the obtaining of money, goods, chattels, and jewels of the same persons, their friends and acquaintances; by color whereof the said light and evil-disposed persons have deceitfully and unlawfully obtained and gotten great substance of money, goods, chattels, and jewels into their hands and possession, contrary to right and conscience,” etc.; and in one of the early statutes relating to false pretenses it is recited that, whereas, “a failure of justice frequently arises from the subtle distinction between larceny and fraud,” etc. — one of which distinctions being that when property was obtained by consent of the owner intending to part with the title, although by the grossest fraud, it would not constitute larceny. (And the offense of false pretenses under the English statutes has always been construed as largely analogous to and closely bordering upon that of larceny, and as applying only to personal property which was capable of manual delivery, and the subject of the latter offense; and has always been punishable in much the same manner as larceny. Beal property under the English law was never the subject of the offense, either of cheating or of false pretenses. Being incapable of larcenous asportation, it was not regarded as requiring at the hands of the criminal law the same protection as personalty. Since it could not be carried away and dissipated like chattels, although a man might be deprived of his landed estate by means of fraudulent practices and devices, yet the property was bound to remain stationary and accessible to the reach of the law, and he was relegated to the civil courts for his redress of the wrongrj

Our American statutes upon the subject have all followed more or less closely those of England. As indicated, there are slight differences in language, but in substantive purpose and effect they are the same. Some, instead of employing the specific terminology of the English statutes in designating the character of the property made the subject of the offense, have used more general and perhaps more comprehensive terms, such, for instance, as those found in the provision of our code above quoted. In their interpretation, however, of the purpose and effect of these statutes, the American courts, by reason no doubt of the origin of the offense, and in obedience to a well established rule of statutory construction, have closely followed in a general way that of the English courts, and the statutes of the various states, however general their terms, have been uniformly held to apply only to personal property of a larcenous nature. [In one case from Indiana (State v. Snyder, 66 Ind. 203), this rule seems to have been relaxed to the extent of holding that the fraudulent obtaining of board and lodging by false pretenses was within the statute. But in Wisconsin it was held that such an act was not within the law. (State v. Black, 75 Wis. 490.) The language of the Wisconsin statute was quite as general as our code provision, reading: “Any money, goods, wares, merchandise, or other property,” and it was contended, as by the attorney-general it is urged here, that this language was sufficiently comprehensive to include any property. But it is there said: “The word ‘property’ is in many cases construed to include ‘ things in action and evidences of debt.’ (Rev. Stats., sec. 4972, subds. 3, 4.) But the words, ‘other property,’ in the statute quoted must, under the familiar rule noscitur a sociis, be limited to such identical classes of property as are therein previously enumerated; that is to say, ‘money, goods, wares, merchandise, and other property ’ of that description.”J

The Indiana case above cited takes the widest departure from the original scope of the offense that has come under our observation. In no case, so far as an extended research discloses, has the offense ever been held to include transactions in land or real estate. In fact, but two instances are cited in which this claim has heretofore been made, and in both it was overruled. The first was in State v. Burrows, 11 Ired. 477, where it is said: “ There are three fatal objections to the indictment. 1. Land is not included within the operation of the statute. It is true the words are very general: ‘ Money, goods, property, or other things of value,’ ‘ or any bank note, check, or order for the payment of money, etc.’ But they must be construed with réference to the nature of the offense, the mischief intended to be guarded against, and the particular terms used in connection with the general terms. Larceny at common law was confined to ‘goods and chattels.’ It did not extend to land, because land could not be feloniously taken and carried away, except insignificant parcels thereof, and there was no mischief complained of in that regard.” And, referring to the fact that the punishment for the offense was the same as that for larceny, it is further said: “Thus we are furnished with a key whereby to unlock the meaning of the statute. It was justly considered as great a mischief to be defrauded of property by means of a forged or counterfeit paper, etc., as to be deprived of it by means of a felonious taking and carrying away, and the object was to extend the principle to cases where property was obtained in this fraudulent manner.....It may be that ‘ other things of value’ was inserted to include corn, wheat, etc., growing and standing ungathered, but it would be a strained construction to make it include the very land, for that is not the subject of larceny at common law and as extended by the statute. It would be to make the corollary or sequent embrace a subject not embraced by the original proposition, which is bad logic as well as bad law.”

The other instance arose in Commonwealth v. Woodrun, 4 Pa. L. J., 362, where, discussing the sufficiency of an indictment for cheating in a real estate transaction, it is said: “There is another objection to this bill of indictment, which to my mind is equally fatal. The subject matter of the charge laid in it is land and title to it. Does not the same reason apply against making real estate the subject of a criminal charge for depriving its owner of it by cheating, as applies against making land or any portion of it the subject of larceny?

“In both cases it is the mobility of the article obtained which makes the transaction a public evil, as it enables the offender to remove or conceal the property from its owner, with himself, from public justice. And it strikes me as nugatory to prepare a penalty for obtaining property which the offender cannot pass if obtained by fraud, and which he cannot remove from its actual location.

“In all legislation against obtaining property by false tokens or cheats the obtaining real estate thereby, I believe, has never been made the subject of criminal charge and punishment.”

Speaking of this offense, in Wharton’s Criminal Law, at section 1195, it is said: “As will be hereafter seen, under the statutes, as first drafted, only larcenous property is protected. By the statutes now existing in most jurisdictions this limit is obliterated, and the obtaining by false pretenses both of land and of written securities is made indictable.” But to the point that land is now the subject of the offense, the single authority cited, is State v. Burrows, above cited and quoted ' from, which, as will be noted, holds directly to the contrary. Later on, at section 1204, the same work again adverts to the subject in this wise: “As we have seen, property not larcenous was not at first covered by the statutes, and hence the words ‘money,’ ‘goods,’ ‘property,’ have been held not to include .... ‘land.’” Here, curiously enough, to support this suggestion is again cited the same case of State v. Burrows, supra. It .will be thus observed that this case is cited as supporting directly opposite views of the same question—an infirmity under which that case can in no manner be said to rest, and the implied suggestion of which was no doubt the result of mistake or inadvertence on the part of the eminent writer or his reviser. In this immediate connection, however, it is further said: “It is, otherwise, however, by special statutes in most jurisdictions.” In view of what precedes it, this language is, we think, ambiguous and liable to be misapprehended. If by it the writer intended thereby to reaffirm the idea previously suggested that the offense is now held to include land as one of its subjects, his authorities do not support him. The only cases cited to sustain the text are two: One the case of State v. Snyder, supra, which is simply to the effect that the statute included the fraudulent obtaining of board and lodging; and the other is that of Regina v. Burton, 54 L. T., N. S., 765, where it was held that one was properly convicted under the statutes for false representations made to obtain food. To this extent it may be our own statute would go. Its exact limitations in that respect are not involved, and need not be determined. But from a consideration of its language, and an examination and review of all the authorities that have come to our attention, either from the briefs or as a result of our own search, we are satisfied that it was' not intended that the offense as there defined should take so wide a departure from its universally accepted scope, as theretofore limited and understood, as would be required to include the facts upon which this charge is laid.

•[As suggested in State v. Burrows, supra, the very language of our statute furnishes us a key to its intended limitation, in providing that the offense shall be i<punishable in the same manner and to the same extent as for larceny of the money or property so received.” Since real estate is not the subject of larceny, this language would be meaningless in attempting to apply it to the facts alleged in the information^

The judgment is affirmed.

Haroutte, J., and Harrison, J., concurred.  