People v. Gates

13 Wend. 311

Opinion

By the Court,

Savage, Ch. J.

The questions arising out of the record are, 1. Whether the indictment is good in substance ; 2. Whether it should have been quashed for joining several counts, or the public prosecutor compelled to elect which count he would prosecute; and 3. Upon the bill of exceptions, whether improper evidence was admitted.

Is the indictment good 1 An indictment is a brief narrative of the offence charged; it must contain a certain description of the crime, and the facts necessary to constitute it. 1 Chitty’s Cr. Law, 168, 9. In general, the rules of pleading which govern in the structure of a declaration are applicable to indictments. As to the degree of certainty which is requisite, the indictment must state the facts of the crime with as much certainty as the nature of the case will admit. In a criminal charge, in the language of Lord Mansfield, there is no latitude of intention to include any thing more than is charged; the charge must be explicit enough to support itself. 2 Burr. 1127. An indictment charging the defendant with obtaining money by false pretences is sufficient, without stating what those false pretences were. 2 T. R. 581. 2 Maule & Selw. 587. 9 Wendell, 191. 11 id. 557. A considerable degree of particularity in stating the false pretences is necessary, because they must be proved as laid, and slight variances may be fatal to the prosecution, 1 Campb. 494; and if they must be proved as laid, none can be proved but such as are laid. It is not sufficient merely to state that the defendant did falsely pretend, &c.—setting forth the several pretences; but after stating the false pretences at large, the pleader must by averment falsify each pretence which he intends to rely on at the trial, as he would in an indictment for perjury.

The statute upon which the present indictment is framed is as follows : “ Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing or by any other false pretence, obtain the signature of anypersonto any writte?iinstrumentoxobtcdnfiomany person any money, personal property or valuable thing, upon conviction thereof, shall be punished,” &c. 2 R. S. 677, § 63. The indictment now under review charges that the defendant, on, &c. at, dec. with intent to cheat and defraud the minister, elders and deacons of the Reformed Protestant Dutch Church in the city of Albany, did unlawfully, knowingly and designedly, by color of a certain false writing, obtain the signature of John Ludlow, as the president of the consistory of said church, to a certain written instrument, and winch written instrument was the said false writing, and is in the words, letters and figures following, dec. (setting forth the bond.) The indictment then states that the defendant presented the said instrument to the said John Ludlow for his signature, and obtained it; and the said John Ludlow, believing the said written instrument to be true, and that the making and presentation to him had been authorized by the consistory, and being deceived thereby, was induced to give it his signature, &c. This count in the indictment sets out no false pretences, but merely a false writing. The facts and circumstances, as spread upon the indictment, which deceived Dr. Ludlow and procured his signature to the bond, are simply the appearance of the defendant before him, and presenting to him a blank bond, which appeared to have been drawn for him to sign. The defendant says not a word; makes no allegation on the subject, but is perfectly mute. The indictment concludes by averring that the defendant knew the instrument to be a false writing, but it is no where charged that he represented it to be a true writing. It is also averred that the defendant kneiv, when he presented the writing, that it was not authorized by any resolution of the consistory; but it does not appear that he ever affirmed that it was so authorized. It is further averred that the defendant, when he presented the writing, knew that he had no warrant of authority for making it, or obtaining the signature "of Dr. Ludlow. He never affirmed that he had, from any thing alleged in the indictment. Had the count charged, that when the defendant presented the writing to Dr. Ludlow, he had represented that it was one which he was authorized to present to him for his signature, either by a resolution of the consistory or otherwise, then there would have been a fitness and propriety in distinctly falsifying those allegations which he had represented to be true. This count is therefore bad, unless it is sustained by the the allegation that the defendant did, by color of a certain false loriting, obtain the signature of John Ludlow, ¿be.

At common law private cheats were not indictable. The only remedy was by action. The cases in which fraud was indictable at common law were, the use of false weights and measures, the selling goods with counterfeit marks, playing with false dice, and frauds affecting the course of justice and immediately injuring the interests of the public or the crown. 1 Chitty's Cr. L. 995. 7 Johns.R. 201. These depend on the the principle that they evince a general intent to defraud. To remedy the defect which existed, several statutes were passed in England. The statute of 33 Henry 8, ch. 1, after reciting that many evil disposed persons had contrived privy tokens and counterfeit letters in other men's names, by color whereof they obtained great substance of money, &c. creates tire of-fence, falsely and deceitfully to obtain or get into their hands or possession money, goods chattels, &c. by color and means of any suchfalsetoken or counterfeit letter, made in any other man's name. “Some difficulty has arisen as to what shall be considered as a token. It is clearly not amere affirmation or promise, but must be something real and visible—as a ring, a key, or a writing; and even a writing would not suffice, except it was in the name of another, or so framed as to afford more credit than the mere assertion of the party defrauding.” 1 Chitty's C. L. 997. 2 East's P. C. 689. The statute of Henry 8 only embraced frauds committed by means oí false tokens and counterfeit letters. The statute of 30 George, 2, ch. 24, extended to all persons whoby false pretences slioul d obtain money, goods, wares, or merchandise ; and did not, in terms', extend to securities and choses in action. This defect was remedied by the 52d Geo. 3, ch. 64, which extends the provisions of the previous act to bonds, bills of exchange, bank notes and other securities ; and thus rendered criminal every description of fraud by false pretences, whatever property the deception was intended to obtain.1 The principle of the statute of 30 Geo. 2, ch. 24, was first enacted in this state in 1787, that if any person or persons shall knowinlgy and designedly, by false pretence or pretences, obtain from any other person or persons any monies, goods or merchandise, or other effects whatsoever, with intent to cheat or defraud, such person or persons shall be deemed guilty of an offence. The revisions of 1101 and 1813 did not materially change this phraseology. The revised statutes of 1830, created the offence of obtaining by false pretences the signature of any person to a written instrument. It was held, in The People v. Stone, 9 Wendell, 182, that it was not an offenece, under the old statutes, to obtain by false pretences an endorsement of a promissory note, unless it also was shown that the note was used or negotiated, or that the endorser had suffered inconvenience or loss. By the revised statutes, however, the offence is complete when the signature is obtained by any false pretence with intent to defraud. The statute of 33 Henry 8, ch. 1, was never in terms' re-enacted in this state until 1830, nor in substance any further than it is embraced in the subsequent statute of 30 Geo. 2, ch. 24. The language in 33 Hen. 8, ch. 1, is “ that if any person falsely and deceitfully obtain or get into his hands or possession any money, goods, chattels, jewels, or other things, of any other person, by color and means of any such false token or counterfeit letter, made in any other man’s name as aforesaid, (referring to the preamble,) then that every person so offending.” &c. Our revised statutes say, “ Every person who, with intent to cheat or defraud another, shall, designedly, by color of any false token or writing, or by anyother/aZse pretence, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing,” shall be punished. When inquiring what the legislature intended by the expression false token oXwriting, it is probably not presumí n g too much to suppose that they had in view the statute of 33 Henry 8, ch. 1, and intended to embrace not only counterfeit letters made in other men’s names,but any false instrument purporting on its face to be a genuine instrument of any description. It has been adjudged that the word token was not satisfied by an affirmation or promise, but must be something real, visible and substantial ; so I apprehend the words false writing must mean some letter or instrument purporting to be the act of some person, and so framed as to have more weight and influence in effecting the fraud than the mere assertion of the party defrauding. The words false token or writing, or any other false pretence, are all contained in the same section. Suppose the count had charged that the defendant had presented this same blank bond to Dr. Ludlow, without saying any thing or making any other pretence, and that, being deceived thereby, Dr. Ludlow had given the defendant $4000; could such a count come within the rule that the indictment must set forth the facts and circumstances with as much certainty as the nature of the case will admit ? In such case there could be no false pretence, for there would be no pretence at all; nor, in my opinion, would there be any false writing, nor any writing at all. Writing, as used in the statute, must mean some instrument, or at least letter—something in writing, purporting to be the act of another, or certainly of some person ; but the paper presented in this case does not answer any such description; it was no writing at all, because it did not purport to be the act of any person. Writing, as used in the statute, cannot mean any thing written upon paper, not purporting to be of any force or efficacy; but some instrument in writing, or written paper, purporting to have been signed by some person ; and such writing must be false. If this is a correct exposition of the statute, the first count in the indictment is bad, for the writing is not such an one as the statute intended ; and if it were, still there was no falsity about it; it was exactly what it purported to be—a blank bond prepared fox the signature of Dr. Ludlow.

The second count in this respect differs from the first. It states that the defendant, with intent to defraud, &c. did, by color of a certain false writing, obtain the signature of the said John Ludlow, as the endorser upon it, and then sets forth a paper purporting to be a promissorynote,drawn by the defendant and payable to the said John Ludlow for $1500; and avers that the said John Ludlow, believing the said instrument to be true, and that the making it and its presentation to him had been authorized by the consistory, endorsed it. It also avers that the defendant knew it was false, and that the issuing and his sig- ^ o o nature were not authorized, <fcc. But I apprehend both counts are fatally defective, because they do not state the charge, with its circumstances, in such a manner as to show how the false instrument or pretences operated to effect the fraud. Lord Mansfield says, the charge must be explicit enough to support itself; it must relate an intelligible story. It will not do to say that the defendant by a certain false pretence effected a fráud; but the pretence must be particularly stated, with all its material circumstances, as it is intended to prove it upon the trial. 2 T. R. 586. So it is not sufficient to say that the defendant by means of a false token perpetrated a fraud, 2 Sir. 1127, but the indictment must specify at length the particulars of the fraudulent representations, and show how the false token was effectual in accomplishing the fraud. 9 Cowen, 588, per Spencer, senator. And so, too, I apprehend in this case, the pleader should have stated all the circumstances which he expected to prove at the trial. In no other way can a defendant know what he must prepare to meat. I can find no precedent in this general form. They are all the other way, and state with minuteness the pretences put forth by the defendant, with the proper and special falsification of them. The People v. Stone, 9 Wendell, 182, was for fraudulently procuring the endorsement of A. Filley upon promissory notes ; each count of the indictment in that case states, with great particularity, the representations made—the false pretences used so as to present upon paper a case which would appear to the court to contain all the circumstances necessary to complete the offence. If such a statement is necessary, then both counts here are defective, for in neither is there any such statement of the facts and circumstances.

I will now proceed to examine the questions raised by the bill of exceptions.

First. The first question arising upon the trial was, whether the court should have compelled the district attorney to elect which count he would go upon. In Young v. King, 3 T. R. 106, Buller, justice, says, that where different felonies are included in the same indictment, the judge may quash the indictment, lest it should confound the prisoner in his defence; but these are only matters of prudence of discretion. This court has recently said, in the case of The People v. Rynders, that there is no impropriety in trying a prisoner for different offences at the same time, if the offences are charged in the same indictment, and arc of the same grade, and subject to the same punishment.

Second. It is said, that the courtbelow admittedimproper testimony, 1. In permitting Dr. Ludlow to swear that he never signed a bond of this description which was not authorized by the consistory, or which Gatesdid notrepresent wasso authorized. This is objected to for two reasons : first, because it is unsatisfactory, and does not prove the reason of signing the bond in question ; and secondly, because there is no such allegation in the indictment. As to the first reason, it is certainly not of itself sufficient to convict a defendant upon, but, connected with other testimony and other circumstances, it might be sufficient. Offences are often proved entirely by an accumulation of circumstances, when no one circumstance standing alone would justify a conviction. The tendency of the testimony was to prove the defendant’s guilt. If the witness never signed any such bond but what was presented to him by the defendant, and the defendant in all cases made the representations alleged, and the witness did sign the bond in question, and it was presented by the defendant, this is nearly or quite tantamount to saying that the defendant on the present occasion made those representations. But for the other reason assigned, I think the testimony was not warranted. It has been shown that the indictment should set forth all the pretences, upon the falsity of which the defendant must be convicted, if at all. There is no allegation in the indictment that the defendant made any such representations, or any representations at all. It was improper, therefore, to permit any such evidence. 2. An objection was made to the proof of certain admissions made by the defen dant, on thegroundthatthey were confessions made ato clergyman. The answer to this objection is found in the testimony of Dr. Ludlow, that he did not consider the communication made to him in his professional character, or as a clergyman. The provision of the revised stat utes is this: “ No minister of the gospel, or priest of any deshall be allowed to disclose any confessions made to him in his possessional character, in the course of discipline enjoined by the rules or practice of such denomination.” 2 R. S. 406, § 72. The admissions in this instance were not in the course of discipline, 3. It is alleged that the court erred in permitting evidence of a suit against Dr. Ludlow upon the note. Had the indictment been for obtaining money or personal property by false pretences, it has been settled in The People v. Stone, that such evidence would have been proper after proof of the pretences; but this indictment does not charge the defendant with obtaining the money or personal property, or other valuable thing of Dr. Ludlow. It simply charges him with obtaining Dr. Ludlow’s signature to a bond, and his endorsement upon a note. When the signature was obtained, the offence was complete; and whether Dr. L. was sued or not, or paid the money, is entirely immaterial ; such testimony was improper. For the same reason it was improper to go into an examination of the books of the church, or the state of the accounts between the church and the defendant, or what was done with the instruments after the signatures were obtained. The only questions properly before the jury, were, whether Dr, Ludlow signed the bond and endorsed the note upon the pretences stated in the indictment ; whether he was deceived by the blank bond being presented to him, and that alone, and therefore signed it; and whether that bond was a false writing. So likewise of the note ; in respect to which there is no pretence but it was true and genuine.

Third. Itis further allegded by the defendant’s counsel that proper testimony was excluded. But it seems to me unnecessary to pursue this trial further. If I am right in the previous discussion, the present prosecution must fail: 1. Because the indictment is insufficient; and 2. If it be sufficient, then it was unnecessary and improper to receive evidence of any false pretences, because none are laid.

My opinion is, that the indictment should be quashed.