Bigelow, C. J.
We have given to the questions raised in the present case very full and careful consideration, not only on account of their intrinsic importance, but also from a due regard to the views and arguments of the learned counsel for the defendant, which they have urged upon our attention with great ability, and apparent confidence in the correctness of their positions. The result of our deliberations has been to lead to conclusions entirely satisfactory to our own minds, which we now proceed to state. To render the case clear and intelligible, it will be necessary to give a brief outline of the leading facts on which the charge against the defendant is founded. The indictment is for obtaining goods by false pretences. At the trial in the superior court, the evidence offered in support of the prosecution tended to show that the defendant, being by occupation a merchandise broker, falsely pretended and represented to the prosecutors that he was authorized as the agent and broker of certain [561]*561persons in New York, whose names he did not disclose, to pur* chase a large amount of linseed at the price of three dollars per bushel; that the prosecutors, believing these pretences and representations to be true and relying upon them, did agree to sell to said persons in New York for whom the defendant purported to act several thousand bags of linseed at the price named by the defendant; and that in pursuance of such agreement they did deliver the same to the defendant, who by means of said false representations and pretences received and obtained said merchandise with intent to cheat and defraud the prosecutors thereof. In support of these alleged facts much evidence was offered by the Commonwealth at "the trial, to the competency of some portions of which objections were taken by the defendant’s counsel, and overruled by the court.. This class of exceptions we propose first to consider.
1. The court admitted press or machine- copies of certain letters, purporting to have been written by the defendant, to be read to the jury. These we think were competent on two grounds. Independently of proof that the- originals were in the handwriting of the defendant, the copies were admissible as documents in his possession, and to which he had constant access. They therefore furnished room for the inference that he was acquainted with their contents, and affected him with an implied admission of the statements contained in them. This is the ordinary rule of law applicable to papers found in the possession of a party. 1 Greenl. Ev. § 198, and cases cited. Evidence of a precisely similar character was admitted without objection in Commonwealth v. Eastman,1 Cush. 189-, 195. Nor are we able now to see any valid reason for excluding it. But upon another and distinct ground we are of opinion that the evidence was admissible. The press copies, as they are called, were in fact proved to have been in the handwriting, of the defendant. They were in truth a part of the original letters as written by him, transferred by a mechanical pressure to, other sheets. But such transfer did not destroy the identity of the handwriting as shown on the impression, or render it unrecognizable by persons acquainted with its characteristics. These to- a considerable extent [562]*562it must necessarily still retain, so that a person having adequate knowledge could testify to its genuineness with quite as much accuracy as if he had before him the original sheets on which the letters were first written. Writings thus transferred are not unlike written documents which have been defaced or partially obliterated by exposure to dampness, rough usage or the wasting effect of time. Such papers may not possess all the distinctive features of the original handwriting, but their partial destruction or obliteration will not render them inadmissible as evidence, if duly identified by testimony. A press copy, it is true, might furnish a very unsatisfactory standard of comparison by which to determine whether another paper, the handwriting of which was in controversy, was written by the same person, because the mechanical process to which it had been subjected in transferring it would, by spreading the ink and blurring the letters, necessarily somewhat affect its general resemblance. For this reason it was rejected when offered for such purpose in Commonwealth v. Eastman, 1 Cush. 217. But although incompetent as a means of comparison by which to judge of the characteristics of a handwriting which is in dispute, it might still retain enough of its original character to be identified by a witness, when its own genuineness was called in question. Such in effect was the nature of the testimony offered at the trial, although the mode of putting the inquiry to the witness was defective and irregular. Strictly he should have been asked if the letters shown to him appeared to be in the handwriting of the defendant; then by proving that they were press copies it would follow that the letter from which the impressions were made were his also. The defect was in so framing the question as to elicit the opinion of the witness concerning the handwriting and the necessary consequence of that opinion in the same answer. But the substance of the evidence was clearly competent. It was accompanied by proof of due effort on the part of the government to procure and produce the original letters, and was thus brought within the principle and reason of the rule on which evidence, in its nature secondary, of the contents of written papers is held to be admissible.
[563]*5632. Objection was also taken to the competency of certain telegraphic messages which were shown to be in the handwriting of the defendant, as tending to prove communications made by him to parties in New York to whom they were addressed. Inasmuch as these papers were entirely competent as admissions by the defendant, it is difficult to see how it was material to show that their contents were made known to the persons to whom they were sent, or in what way the rights of the defendant could have been prejudiced at the trial by the fact that the jury were left to infer that the messages actually reached their destination. But, apart from these considerations, we cannot doubt that they afforded legitimate ground for the inference which the court permitted to be drawn from them. It was affirmatively proved by the operators at the telegraph offices that all these messages were received by them and duly transmitted over the wires, directed to the parties to whom they were addressed by the defendant. No rule of evidence is better settled or more clearly founded in good sense and sound policy than that which authorizes presumptions or inferences of fact to be deduced from the proof of certain other facts, which, according to the common experience of mankind, or the usual course of business, naturally or necessarily lead to the result or conclusion which is sought to be drawn from them. Such presumptions or inferences depend on their own natural force and efficacy in generating a belief or conviction in the mind as derived from those connections which are shown by experience, irrespective of any legal relation. The process of ascertaining one fact from the existence of another is essential to the investigation of truth, and prevails in courts of law as well as in the ordinary affairs of life, especially in cases where there is a well known and established usage or course of business, and primary evidence of the existence of a fact is wanting or difficult to be obtained. On this ground, the ruling of the court as to the effect of the evidence in question was clearly right.
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Bigelow, C. J.
We have given to the questions raised in the present case very full and careful consideration, not only on account of their intrinsic importance, but also from a due regard to the views and arguments of the learned counsel for the defendant, which they have urged upon our attention with great ability, and apparent confidence in the correctness of their positions. The result of our deliberations has been to lead to conclusions entirely satisfactory to our own minds, which we now proceed to state. To render the case clear and intelligible, it will be necessary to give a brief outline of the leading facts on which the charge against the defendant is founded. The indictment is for obtaining goods by false pretences. At the trial in the superior court, the evidence offered in support of the prosecution tended to show that the defendant, being by occupation a merchandise broker, falsely pretended and represented to the prosecutors that he was authorized as the agent and broker of certain [561]*561persons in New York, whose names he did not disclose, to pur* chase a large amount of linseed at the price of three dollars per bushel; that the prosecutors, believing these pretences and representations to be true and relying upon them, did agree to sell to said persons in New York for whom the defendant purported to act several thousand bags of linseed at the price named by the defendant; and that in pursuance of such agreement they did deliver the same to the defendant, who by means of said false representations and pretences received and obtained said merchandise with intent to cheat and defraud the prosecutors thereof. In support of these alleged facts much evidence was offered by the Commonwealth at "the trial, to the competency of some portions of which objections were taken by the defendant’s counsel, and overruled by the court.. This class of exceptions we propose first to consider.
1. The court admitted press or machine- copies of certain letters, purporting to have been written by the defendant, to be read to the jury. These we think were competent on two grounds. Independently of proof that the- originals were in the handwriting of the defendant, the copies were admissible as documents in his possession, and to which he had constant access. They therefore furnished room for the inference that he was acquainted with their contents, and affected him with an implied admission of the statements contained in them. This is the ordinary rule of law applicable to papers found in the possession of a party. 1 Greenl. Ev. § 198, and cases cited. Evidence of a precisely similar character was admitted without objection in Commonwealth v. Eastman,1 Cush. 189-, 195. Nor are we able now to see any valid reason for excluding it. But upon another and distinct ground we are of opinion that the evidence was admissible. The press copies, as they are called, were in fact proved to have been in the handwriting, of the defendant. They were in truth a part of the original letters as written by him, transferred by a mechanical pressure to, other sheets. But such transfer did not destroy the identity of the handwriting as shown on the impression, or render it unrecognizable by persons acquainted with its characteristics. These to- a considerable extent [562]*562it must necessarily still retain, so that a person having adequate knowledge could testify to its genuineness with quite as much accuracy as if he had before him the original sheets on which the letters were first written. Writings thus transferred are not unlike written documents which have been defaced or partially obliterated by exposure to dampness, rough usage or the wasting effect of time. Such papers may not possess all the distinctive features of the original handwriting, but their partial destruction or obliteration will not render them inadmissible as evidence, if duly identified by testimony. A press copy, it is true, might furnish a very unsatisfactory standard of comparison by which to determine whether another paper, the handwriting of which was in controversy, was written by the same person, because the mechanical process to which it had been subjected in transferring it would, by spreading the ink and blurring the letters, necessarily somewhat affect its general resemblance. For this reason it was rejected when offered for such purpose in Commonwealth v. Eastman, 1 Cush. 217. But although incompetent as a means of comparison by which to judge of the characteristics of a handwriting which is in dispute, it might still retain enough of its original character to be identified by a witness, when its own genuineness was called in question. Such in effect was the nature of the testimony offered at the trial, although the mode of putting the inquiry to the witness was defective and irregular. Strictly he should have been asked if the letters shown to him appeared to be in the handwriting of the defendant; then by proving that they were press copies it would follow that the letter from which the impressions were made were his also. The defect was in so framing the question as to elicit the opinion of the witness concerning the handwriting and the necessary consequence of that opinion in the same answer. But the substance of the evidence was clearly competent. It was accompanied by proof of due effort on the part of the government to procure and produce the original letters, and was thus brought within the principle and reason of the rule on which evidence, in its nature secondary, of the contents of written papers is held to be admissible.
[563]*5632. Objection was also taken to the competency of certain telegraphic messages which were shown to be in the handwriting of the defendant, as tending to prove communications made by him to parties in New York to whom they were addressed. Inasmuch as these papers were entirely competent as admissions by the defendant, it is difficult to see how it was material to show that their contents were made known to the persons to whom they were sent, or in what way the rights of the defendant could have been prejudiced at the trial by the fact that the jury were left to infer that the messages actually reached their destination. But, apart from these considerations, we cannot doubt that they afforded legitimate ground for the inference which the court permitted to be drawn from them. It was affirmatively proved by the operators at the telegraph offices that all these messages were received by them and duly transmitted over the wires, directed to the parties to whom they were addressed by the defendant. No rule of evidence is better settled or more clearly founded in good sense and sound policy than that which authorizes presumptions or inferences of fact to be deduced from the proof of certain other facts, which, according to the common experience of mankind, or the usual course of business, naturally or necessarily lead to the result or conclusion which is sought to be drawn from them. Such presumptions or inferences depend on their own natural force and efficacy in generating a belief or conviction in the mind as derived from those connections which are shown by experience, irrespective of any legal relation. The process of ascertaining one fact from the existence of another is essential to the investigation of truth, and prevails in courts of law as well as in the ordinary affairs of life, especially in cases where there is a well known and established usage or course of business, and primary evidence of the existence of a fact is wanting or difficult to be obtained. On this ground, the ruling of the court as to the effect of the evidence in question was clearly right. It comes within the principle on which it is held that proof that letters were deposited in the post-office duly directed is evidence tending to show that they reached their destination and were received by the persons [564]*564to whom they were addressed. 1 Greenl. Ev. § 40, and cases cited. Dana v. Kemble, 19 Pick. 112. The case of Greenfield Bank v.Crafts, 4 Allen, 447, gives no countenance to any different doctrine. It decides only that the presumption in such case is not conclusive, but that it is open for the jury to draw the inference if they see fit. The ruling in the case at bar went no farther.
3. It is also objected that the court erred in admitting Barnard, one of the prosecutors, to testify to whom he gave credit in negotiating a sale of the merchandise with the defendant. This objection is put on the ground that there was written evidence showing with whom the contract was made, which could not be controlled by paroi testimony. But this is an error. The entry in the vendors’ books did not constitute a'written contract. James v. Spaulding, 4 Gray, 452. It was not even legal evidence of the sale. Certainly the bill of parcels delivered to the defendant cannot be deemed such a contract so as to exclude oral evidence. Hazard v. Loring, 10 Cush. 267. Besides ; the making of such bill is perfectly consistent with the idea that credit was given to persons other than the defendant. Nothing is more common among business men than the issuing of bills in the name of an agent or broker, in cases where a sale is in fact made to a principal. The same is true of the orders for a delivery of the merchandise. These might well be made out to the broker in order to enable him to forward the goods to the supposed- principal, and were wholly distinct from and independent of the contract of sale in pursuance of which they were made.- We are strongly inclined to the opinion that if there had been a written contract between the vendors and the defendant for the sale of the linseed, it would have been competent to show by paroi evidence that the sale was made in fact to an undisclosed principal, and that credit was really given to the latter, unless it clearly appeared by express stipulation that the agent was to be liable to the exoneration of the principal. Higgins v. Senior, 8 M. & W. 834. Huntington v. Knox, 7 Cush. 371. Bray v. Kettell, 1 Allen, 80, and cases cited. But however this may be, we cannot doubt that in the present case, where there was no written contract of sale, testimony of one of the vendors was properly admitted to [565]*565show to whom he gave credit in the transaction, and that it was rightly submitted to the jury to determine on the whole evidence, including the entries on the books and the other documents in evidence, whether the sale was on the credit of the defendant or that of the undisclosed parties in New York. And it may be added in this connection that, in the aspect which the case assumed on the evidence, it would have been erroneous to withdraw it from the jury by a peremptory ruling that there was in law a sale of the merchandise to the defendant, or a legal presumption of such sale, which there was no sufficient evidence in the case to control or overcome. This would have been, under the circumstances, a direct invasion of the province of the jury, by withholding from them the clear and explicit evidence of Barnard, of whose credibility they were the exclusive judges. Nor are we able to see that the facts disclosed concerning the sale, taken together, are absolutely inconsistent with the theory that the sale was made to persons in New York, and not to the defendant. The prominent circumstance on which the counsel for the defendant put this part of the case — that it appeared by the testimony of Mr. Barnard that the defendant was to obtain the notes of the persons in New York for the price of the linseed and get them discounted and pass the proceeds over to the vendors — is by no means decisive of the character of the transaction. He might well undertake to do this as an agent or broker, without becoming the purchaser of the merchandise or receiving-it from the vendors on his own credit. The instructions to the jury on this point, as well as on other parts of the case, were clear and intelligible, and properly left to their determination a pure question of fact.
4. We next come to the consideration of an exception on which great stress has been laid by the learned counsel for the defendant. It is founded on the admission of evidence to prove that at the time of making the alleged false representations the defendant was deeply insolvent This fact was offered in proof by the government as tending to show the fraudulent intent of the defendant in making such false statements, and was held by the court to be competent for that purpose. It is doubtless true [566]*566that in a large class of cases the poverty or pecuniary embarrassments of a party accused of crime cannot be shown as substantive evidence of his guilt. The reason for' the exclusion of such evidence is, that in those cases there is no certain or known connection between the facts offered to be proved and the conclusion which is sought to be established by it. To render evidence of collateral facts competent, there must be some natural, necessary or logical connection between them and the inference or result which they are designed to establish. It does not follow because a man is destitute that he will steal, or that when embarrassed with debt and incapable of meeting his engagements he will commit forgery. The conclusion in such cases is too remote and uncertain a deduction to be legitimately drawn from the premises. It is sometimes difficult to mark with precision the line which separates the limits of just and reasonable inference from those of mere conjecture or surmise. This arises necessarily from the nature of indirect evidence. Being founded- on the observation and experience of the mutual connection between facts and circumstances, the question of its competency is easy or difficult of solution according as such supposed connection is constant or more or less regular and frequent. But as a safe practical rule it may be laid down that in no case is evidence to be excluded of any fact or circumstance connected with the principal transaction, "from which an inference as to the truth of a disputed fact can reasonably be made. This rule is especially applicable when it becomes necessary to show a particular intent in a party as an essential ingredient in the crime with which he is charged. The internal and invisible act or resolution of the mind can be ascertained and judged only by external and visible acts, and by those circumstances which surround a party, and of which he has knowledge when an alleged criminal act is committed. It is upon this ground that in a certain class of crimes evidence that a party has recently committed another offence similar to the one with which he stands charged is held to be admissible. Such evidence is competent in the trial of indictments for uttering forged instruments, passing counterfeit money and receiving stolen goods. Although [567]*567the admission of this species of evidence might seem to be a violation of the cardinal principle that proof of the commission of one crime cannot be offered to support a charge of another offence by the same person, it is nevertheless deemed to be competent from the necessity of the case, for the purpose of showing a guilty knowledge and intention. Limited strictly to this purpose, other criminal acts have a direct relation to the particular accusation under investigation, and tend to prove the substance of the issue, because they show the state of the mind of the accused in committing the act with which he is charged. The application of this principle has been extended by this court to cases of obtaining goods by false pretences; Commonwealth v. Eastman, 1 Cush. 216 ; and to the crime of embezzlement; Commonwealth v. Tuckerman, 10 Gray, 173, 197. In the latter case, it was said by the court that, when the intent of the accused party forms any part of the matter in issue, evidence of other facts not in issue may always be given, provided they tend to establish the intent imputed to him in committing the act. These decisions show that, where the intent of a party charged with crime is to be proved, a wider range of evidence is permitted than is allowed in support of other issues. And this from the necessity of the case; because otherwise there wTould often be no means to reach and disclose the secret design or purpose of the act charged, in which the very gist of the offence may consist. Indeed it may be said generally, that when an act or transaction is of an equivocal kind — one that is not obviously unlawful, from which the mains animus cannot be absolutely presumed, but which may be innocent or guilty according to the intent— not only the acts and conduct of the guilty party on other occasions may be shown, but also the circumstances which surrounded him and the facts affecting his condition may be proved, in order to show the intent with which the alleged criminal act was committed. If it be asked what limit is to be placed on the range of such an inquiry, the answer is obvious. It cannot be extended to facts or circumstances which do not naturally or necessarily bear on the issue to be established, precisely as evidence of all collateral facts and circumstances must be confined [568]*568to the proof of those which have a legitimate and direct connection with the principal transaction. If these views are correct, and we cannot doubt that they are, there is no room for question as to the correctness of the ruling of the court in admitting evidence of the defendant’s insolvency. The making of a false pretence or representation is not of itself criminal. It becomes so only by being accompanied with a fraudulent intent. In the words of the statute, Gen. Sts. c. 161, § 54, it must be made “ designedly, and with intent to defraud.” This intent is part of the substance of the issue, and must be proved. How ? According to the nature of the transaction in or about which the false pretence or representation has been made. If it is a case where such pretence has been used in making a contract for the purchase of goods, and the possession has been thereby obtained from the rightful owner, it is essential to show that the party obtaining them did not intend or was not able to pay for them ; that is, that he intended to get the goods into his possession by a false pretence, for the purpose of defrauding the vendor of the price. The inability of the person making the false pretence to pay for the goods which he has received becomes a significant circumstance bearing on his intent, and tends to show that the pretence, which otherwise would be innocent or harmless, was made for the purpose of accomplishing a fraud. The insolvency of the party has a direct tendency to show the intent with which the false pretence was used. Indeed it is evidence of a most stringent and satisfactory character. The law presumes that every man intends the natural and necessary consequence of his acts. If a person by means of falsehood, under the guise of a purchase either for himself or a third person, obtains the property of another, which he converts to his own use, it is clear that whether the possession thus given is a responsible or irresponsible possession — that is, a possession which will subject the owner to a loss of the value of his property, or one that leaves him secure for its price — becomes a vital question in determining the intent of the party in obtaining the property. If at the time of the transaction he was deeply insolvent, and was cognizant of his condition, the necessary consequence of' the act was [569]*569to deprive the vendor of his property without recompense or the chance of payment, and leads to the just and almost unavoidable inference that it was done with an intent to defraud. Evidence of the pecuniary condition of the accused in such a case is not offered to show that he was under a peculiar temptation to commit the offence, or was more likely to cheat and defraud because he was in embarrassed circumstances, but for the purpose of showing the natural and necessary consequence of his act, which the law presumes he intended. The distinction between the motives which impel a man to commit an act and the effect which he intends his act shall produce on a third party is clear and obvious. Poverty or pecuniary embarrassment may be incompetent to prove the former, but direct and forcible evidence of the latter.
It was conceded by the learned counsel for the defendant, as we understood the argument, that if the false pretences alleged had been concerning the pecuniary responsibility of the defendant, in order to procure a sale of merchandise to himself, the evidence of his insolvency would have been competent. This concession seems to us to give up the point. Such evidence doubtless would have been admissible, not only to prove the falsity of the pretence, but also the fraudulent intent. It has often been so applied in the courts of this commonwealth. But we can see no essential difference between such a case and the one at bar. In either case, the same fact is offered to prove the same intent. The nature of the false pretence is quite immaterial. The real point of inquiry is, did the party by means of it obtain possession of property with intent to defraud, and this is shown with like force and effect by evidence of his insolvency and inability to pay, whether the goods were procured by a false pretence of agency for responsible parties or of his own pecuniary responsibility. For this reason, without enlarging further on the point, it seems to us that the evidence objected to was clearly competent, and had a direct tendency to prove a material issue in the case.
5. It is further objected, in behalf of the defendant, that there are fatal variances between the allegations in the indictment [570]*570and the evidence offered in their support. The first one insisted on is, that the evidence of Barnard does not sustain the averment in the first count, that the defendant represented falsely that he had an order to purchase the linseed al three dollars per bushel. But this is rather a criticism on the testimony of the prosecutor than an absolute variance between allegation and proof. The representation actually made fairly implied an authority to purchase at the price alleged, and well warranted the jury in finding that it was proved as laid. A second variance in the same count is supposed to exist between the allegation and proof of the inducement of the prosecutors to part with their property. But this, like the former, is founded on an ingenious and plausible construction of the evidence given by Mr. Barnard, but does not amount to a variance. Undoubtedly in a certain sense the expectation of receiving the stipulated price for the linseed from the persons in New York for whom the defendant purported to act, and to whom credit was given by the prosecutors, was an inducement by which they were led to part with the possession of their property. The expectation of receiving payment is a motive for every sale of property. But it is always made up of various elements, and is the result rather of other inducements which have produced the expectation than an inducement itself. This is very clearly the sense in which the testimony of Barnard is to be understood, and it was so interpreted by the jury. It was the false pretences made by the defendant, as set out in the indictment, which created the expectation and caused the prosecutors to part with their property. This is the only fair and legitimate inference from the whole testimony of Barnard, and thus understood it well supports the averment in the indictment. As to the first count, therefore, we are of opinion that the supposed variances between the allegations and proof do not exist.
An additional ground of variance as to the second count is insisted on, which seems to us to be well taken. In regard to the lot of linseed therein specified, it does not appear that in making the negotiation for its purchase the defendant purported to act in behalf of parties in New York. The interview [571]*571between Mr. Barnard and the defendant concerning the alleged purchase of the lot was had at a time subsequent to that in which the transaction set out in the first count took place. Nor did the defendant in this second interview pretend that he was acting for the same parties on whose account he purported to act in making the previous negotiation. On the contrary, he expressly stated that he had an order from “ another party.” He did not state who he was or in what place he resided. It would have been perfectly consistent with his statement or representation, if he had been employed to make the purchase by a person in Boston, or Portland, or elsewhere. This evidence therefore does not support the allegation that the defendant represented to the prosecutors that he was acting for parties in New York, or the averment of the inducement as set out in the second count. In this respect there was a fatal variance, and the verdict on this count cannot be sustained. Rex v. Plestow, 1 Camp. 494. The Queen v. Ward, 1 Cox C. C. 101.
It only remains for us to dispose of the motion in arrest of judgment on the first count. This rests substantially on two grounds.
The first is, that the indictment charges the several acts constituting the offence to have been committed by the defendant in his “ capacity as a merchandise broker.” This is certainly an unusual and extraordinary allegation; but we think the maxim, Utile per inutile non vitiatur, is applicable to it. Inasmuch as a man cannot ordinarily commit a crime in any particular capacity or in the exercise of any special occupation, it does not change or in any way affect the nature of the charge to aver that when he was committing it he purported or claimed to act, or actually did act, in a specific capacity, or by virtue of a certain employment. An allegation in due form that a person committed an assault and battery would not be vitiated by the addition of an allegation that he did it as a constable, nor would an averment in technical language that a defendant had committed larceny be rendered nugatory or insufficient by an additional allegation that he committed the act in his capacity as a common carrier. The rule of law as to matters which may be [572]*572treated as surplusage is clear, intelligible and consonant with good sense. It is this: When, in addition to facts which are essential to the charge, others are alleged which are wholly redundant and useless, the latter may be wholly disregarded. As the law does not require the superfluous circumstances to be alleged, so, although they have been improvidently stated, the law, in furtherance of its object, will reject them as mere surplusage, and will no more regard them than if they had not been alleged at all. 1 Stark. Ev. (4th Amer. ed.) 372. The words in the indictment on which this ground of arrest of judgment is founded clearly fall within this principle. The same is true of the subsequent allegation in the same count, that the defendant received and obtained possession of the property in his capacity as a merchandise broker. This is a wholly immaterial averment. The offence which the statute aims to prevent is the obtaining of property by false pretences with an intent to defraud the owner thereof. A possession so obtained is criminal by whomsoever it is accomplished.
The remaining ground on which it is claimed that the indictment is defective and insufficient to support a judgment is, that it avers an actual sale of merchandise to parties in New York, effected by the defendant as their broker, and a delivery of it in pursuance of such sale to him as such broker, and a reception and possession of it by him in that capacity. But this statement of the averments is contrary to the whole scheme and scope of the indictment. It is nowhere averred that the defendant was the broker or agent or authorized to act in any way in behalf of the parties in NewT York. The contrary is distinctly averred, and forms the basis of the false pretence by which the prosecutors are alleged to have been induced to deliver their property to the defendant. Assuming all the averments in the indictment to be true, there could be no sale of property to the parties in New York effected through the agency or intervention of the defendant. All authority in him to act as their broker or agent is distinctly negatived. Taking the averments together, as descriptive of one single transaction which they are designed to set out, they do not allege a real sale to the parties in New [573]*573York through the defendant as their broker, but only a contract of sale on the part of the prosecutors, induced by false pretences made by the defendant by means of which he fraudulently obtained possession of their property. This is the legal effect of all the averments.
The result is, that the verdict on the second count, having been rendered on evidence which did not support the allegations, must be set aside. .The exceptions and motions in arrest, so far as they apply to the first count, are overruled ; and if the attorney general shall see fit to enter a nol. pros, on the second count, the case will stand for judgment on the first count only.