State v. Asher

50 Ark. 427

• Court: Supreme Court of Arkansas
• Decided: November 15, 1887
• Status: Published

Opinion

Cockrill,C. J.,

1. Criminal Law: False pretenses.

2. Same ; Same: Indictment. (after stating the facts as above set forth.) ;To constitute an offence within the meaning of section 1645 Mansfield's Digest, something of value must be obtained by means of a false pretence with the intent to defraud. To obtain goods with the intent to defraud is not enough. It must be accomplished by a false pretence.

“By the terms of the statute the pretence must be false. And the doctrine undoubtedly is, that if it is not false, though believed to be so by the person employing it, it is insufficient." 2 Bish. Cr. Law, sec. 417. The false pretense charged in this case is Asher’s representation that the mortgage, upon the security of which he got the mules from Moore, was the first lien on the land. If the representation is true, there is no foundation for this prosecution, however reprehensible Asher's motive may have been, because the false pretense would not be established. Now, construing all the allegations of the indictment together, is it shown that the representation was false? It is charged that Asher had previously executed a mortgage to his co-defendant, Fitzpatrick, for the full value of the land and that it was the prior lien; but it is also charged that Fitzpatrick counseled Asher to make the representation that the land was free from incumbrance and aided him in obtaining the mules from Moore on the faith of it. The demurrer admits that these allegations are true. Being true, the legal conclusion is that Fitzpatrick waived the priority of his lien and is estopped from asserting'it against Moore. Scott v. Orbison, 21 Ark., 202; Gill v. Hardin, 48 Ark., 412; Shields v. Smith, 37 Id., 47.

Asher’s representation that Moore’s mortgage was the prior lien was therefore true. Moore got just what he bargained for, according to the allegations of the indictment, and he has not, therefore, been injured in any way. The statutory offence has not been committed. Morgan v. State, 42 Ark., 131. It is not, as counsel for the state argues, an attempt to have an offense condoned by repairing the injury done in its commission. There has been no criminal offense.

Moore might have been injured by the transaction if Fitzpatrick’s mortgage-note had been negotiated according to the law merchant and assigned to an innocent holder for' value before maturity. But there js no allegation of the existence of either of these facts, and there is no presumption that that state.of facts exists. People v. Stone, 11 Wheaton, 182-190.

Affirm.