By the Court,
Cole J.
This is an indictment upon section thirty-three, of chapter one hundred and thirty-four, of the revised statutes, for obtaining goods and money under false pretences. The cause was tried at the November term of the circuit court of Dane county, and the jury found the defendant guilty. A motion was made in arrest of judgment upon the ground that the indictment was not sufficient to sustain the verdict, and that it did not charge the defendant with any crime under the statute. Thereupon the circuit court stayed all proceedings under the conviction and reported the case to this court for a determination of the various questions arising upon the indictment and upon the trial. It is proper also to remark, that several exceptions were taken by the counsel for the defendant to the admission of certain testimony offered on the part of the prosecution, for the reason that there were no [683] averments in the indictment under which such proof could be given, and some of these exceptions will be briefly alluded to before we close our remarks.
The indictment in this case charged in substance that the defendant, on the 22d day of May, A. D. 1858, at the city of Madison, &c., knowingly, unlawfully and designedly did falsely pretend to one John Wright and George Paine, they being then and there co-partners, doing business under the name and style of Wright & Paine, that he was a wholesale grocery dealer in the city of New Orleans, and that he had money to the full amount oí two hundred and fifty dollars at least, belonging to him in the hands of, and on deposit with Clark, Dodge & Co., a certain banking house in the city of New York, (which pretenses were specifically negatived to be false, to the knowledge of the defendant,) and that by color and means of these false pretenses, the defendant did then and there unlawfully and designedly and with intent to cheat and defraud Wright & Paine, obtain from them a check upon the State Bank, &c„ for the sum of two hundred and fifty-one and 25-100 dollars, the property of Wright & Paine, of the value of the amount of the check, &c.
The check which the defendant obtained from Wright & Paine, is set out in hmc verba in the indictment, which concludes as usual, contra forman statuti, &c. This is all there is to the indictment.
It will be at once observed that all the pretenses describe^ in the indictment and alleged to be false, are
1. That the defendant was a wholesale grocery dealer in the city of New Orleans; and 2. That he had money on deposit with Clark, Dodge & Co., in the city of New York, to the full amount of two hundred and fifty dollars. There is no allegation that Wright & Paine relied upon these representations as being true, nor upon looking into the testimony do we think these pretenses were the operating or controlling [684] reasons which led them to give the defendant their draft. Now we are not prepared to say that such bold naked statements or assertions as these, unaccompanied with any artful contrivance or device calculated to deceive, however reprehensible in morals, constitute a criminal offence under the statute^ especially in a case where there is no averment in the indictment that the party defrauded was induced to part with his property by relying upon the truth of the statements thus made. It is very evident that such verbal misrepresentations however ingenious and well calculated to deceive the most cautious, would not be indictable at common law or under the statute of 33 Henry, 8; Rex vs. Lavo, 6 T. R., 565; Rex vs. Beyan, 2 Sira., 866; Hartman vs. Commonwealth 5 Barr. 60. The statutes of 30 Geo., 2 c., 24, and of 52 Geo., 3 c., 64, commonly called statutes against false pretenses, and from which the statutes of Maine, Massacusetts, New York, Pennsylvania and some of the other states, are substantially copied, were found necessary to remedy the defect in the common law, and create a new class of offences. Still it is not always easy to determine the real significance and meaning of the term "false pretences,” as used in the statutes. Does it mean any lie or false affirmation which a person may utter in the dealings of life, or in the exchange of property ? If a man says that he is a wholesale grocery dealer in a neighboring city, and has funds on deposit in another city, when it is not so, does he commit an indictable offence under our statute ? We have no disposition to restrict the language and scope of the statute, by adopting such a rigid and strict construction as takes away or measurably impairs its efficacy in protecting the honest and unsuspecting citizen against the arts, designs and falsehoods of the swindlers who prey upon society. The man who obtains the property of another by means of wilful misrepresentations and deliberate lying, deserves no especial sympathy or consideration from a court of justice. And yet it is [685] most obvious that there must be some limit given to the words and meaning of the statute. Section thirty-three of our statute is copied literally from the statute of Massachusetts, (R, S. Mass., § 32, ch. 126), and in the case of Commonwealth vs. Drew., 19 Pick., 179, the supreme court of that State gave a definition of the term false pretenses as used in their statute, as follows. The court says, “ What is a false pretense within the meaning of the statute ? It may be defined to be a representation of some fact or circumstance, calculated to mislead, which is not true. To give it a criminal character there must be a scienter and a fraudulent intent. Although the language of the statute is very broad, and in a loose and general sense, would extend to every misrepresentation, however absurd and immaterial, or however easily detected; yet we think the true principles of construction render some restriction indispensable to its proper application to the principles of criminal law and to the advantageous execution of the statute. We do not mean to say that it is limited to cases against which ordinary skill and diligence cannot guard; for one of its. principal objects is to protect the weak and credulous from the wiles and stratagems of the artful and cunning; but there must be some limit, and it would seem to be unreasonable to extend it to those who, having the means in their own hands neglect to protect themselves.”
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By the Court,
Cole J.
This is an indictment upon section thirty-three, of chapter one hundred and thirty-four, of the revised statutes, for obtaining goods and money under false pretences. The cause was tried at the November term of the circuit court of Dane county, and the jury found the defendant guilty. A motion was made in arrest of judgment upon the ground that the indictment was not sufficient to sustain the verdict, and that it did not charge the defendant with any crime under the statute. Thereupon the circuit court stayed all proceedings under the conviction and reported the case to this court for a determination of the various questions arising upon the indictment and upon the trial. It is proper also to remark, that several exceptions were taken by the counsel for the defendant to the admission of certain testimony offered on the part of the prosecution, for the reason that there were no [683] averments in the indictment under which such proof could be given, and some of these exceptions will be briefly alluded to before we close our remarks.
The indictment in this case charged in substance that the defendant, on the 22d day of May, A. D. 1858, at the city of Madison, &c., knowingly, unlawfully and designedly did falsely pretend to one John Wright and George Paine, they being then and there co-partners, doing business under the name and style of Wright & Paine, that he was a wholesale grocery dealer in the city of New Orleans, and that he had money to the full amount oí two hundred and fifty dollars at least, belonging to him in the hands of, and on deposit with Clark, Dodge & Co., a certain banking house in the city of New York, (which pretenses were specifically negatived to be false, to the knowledge of the defendant,) and that by color and means of these false pretenses, the defendant did then and there unlawfully and designedly and with intent to cheat and defraud Wright & Paine, obtain from them a check upon the State Bank, &c„ for the sum of two hundred and fifty-one and 25-100 dollars, the property of Wright & Paine, of the value of the amount of the check, &c.
The check which the defendant obtained from Wright & Paine, is set out in hmc verba in the indictment, which concludes as usual, contra forman statuti, &c. This is all there is to the indictment.
It will be at once observed that all the pretenses describe^ in the indictment and alleged to be false, are
1. That the defendant was a wholesale grocery dealer in the city of New Orleans; and 2. That he had money on deposit with Clark, Dodge & Co., in the city of New York, to the full amount of two hundred and fifty dollars. There is no allegation that Wright & Paine relied upon these representations as being true, nor upon looking into the testimony do we think these pretenses were the operating or controlling [684] reasons which led them to give the defendant their draft. Now we are not prepared to say that such bold naked statements or assertions as these, unaccompanied with any artful contrivance or device calculated to deceive, however reprehensible in morals, constitute a criminal offence under the statute^ especially in a case where there is no averment in the indictment that the party defrauded was induced to part with his property by relying upon the truth of the statements thus made. It is very evident that such verbal misrepresentations however ingenious and well calculated to deceive the most cautious, would not be indictable at common law or under the statute of 33 Henry, 8; Rex vs. Lavo, 6 T. R., 565; Rex vs. Beyan, 2 Sira., 866; Hartman vs. Commonwealth 5 Barr. 60. The statutes of 30 Geo., 2 c., 24, and of 52 Geo., 3 c., 64, commonly called statutes against false pretenses, and from which the statutes of Maine, Massacusetts, New York, Pennsylvania and some of the other states, are substantially copied, were found necessary to remedy the defect in the common law, and create a new class of offences. Still it is not always easy to determine the real significance and meaning of the term "false pretences,” as used in the statutes. Does it mean any lie or false affirmation which a person may utter in the dealings of life, or in the exchange of property ? If a man says that he is a wholesale grocery dealer in a neighboring city, and has funds on deposit in another city, when it is not so, does he commit an indictable offence under our statute ? We have no disposition to restrict the language and scope of the statute, by adopting such a rigid and strict construction as takes away or measurably impairs its efficacy in protecting the honest and unsuspecting citizen against the arts, designs and falsehoods of the swindlers who prey upon society. The man who obtains the property of another by means of wilful misrepresentations and deliberate lying, deserves no especial sympathy or consideration from a court of justice. And yet it is [685] most obvious that there must be some limit given to the words and meaning of the statute. Section thirty-three of our statute is copied literally from the statute of Massachusetts, (R, S. Mass., § 32, ch. 126), and in the case of Commonwealth vs. Drew., 19 Pick., 179, the supreme court of that State gave a definition of the term false pretenses as used in their statute, as follows. The court says, “ What is a false pretense within the meaning of the statute ? It may be defined to be a representation of some fact or circumstance, calculated to mislead, which is not true. To give it a criminal character there must be a scienter and a fraudulent intent. Although the language of the statute is very broad, and in a loose and general sense, would extend to every misrepresentation, however absurd and immaterial, or however easily detected; yet we think the true principles of construction render some restriction indispensable to its proper application to the principles of criminal law and to the advantageous execution of the statute. We do not mean to say that it is limited to cases against which ordinary skill and diligence cannot guard; for one of its. principal objects is to protect the weak and credulous from the wiles and stratagems of the artful and cunning; but there must be some limit, and it would seem to be unreasonable to extend it to those who, having the means in their own hands neglect to protect themselves.”
This rule of construction or definition of the words “ false pretences,” may be somewhat vague and uncertain, yet it is as precise, and definite as it is safe to employ when treating of the nature and ingredients of an offence which assumes a thousand different phases, and changes with the almost infinite variety of human affairs. We feel in the present case the necessity of applying some limitations or qualifications to the language of the statute and we could adopt none more cautious than the remarks just cited. The offence of obtaining money and goods under false pretences has been fully and ably dis[686] cussed in the following cases, which may be usefully consulted. Commonwealth vs. Call, 21 Pick., 515; Commonwealth vs. Strain, 10 Met., 521; Commonwealth vs. Stone, 4 do., 43; Stole vs. Mills, 17 Me. R., 211; The People vs. Stone, 9 W. R., 182; The People vs. Haynes, 11 id., 557; same case in court of errors in 14 id., 547; Rex. vs. Young, 3 T. R., 98; Coleman’s case, 2 East P. C., 672 ; Rex vs. Parker, 2 Moody C. C., 1; same cases, 7 C. & P., 825; Regina vs. Eagleton, 2 Bennett & Heard’s Leading C. C., 88; Rex vs. Flint, R. & R. C. C., 460. We are therefore of the opinion that the bald, naked statements, set forth in the indictment, are too general and uncertain to constitute an offence under our statute. And upon looking further into the testimony of the case another difficulty presents itself to sustaining the conviction. The evidence satisfactorily shows that Wright & Paine were not induced to part with their draft chiefly upon the faith of the misrepresentations and false pretences laid in the indictment. George Paine, who was offered as a witness in support of the prosecution, testified to substantially the following facts: That the defendant was introduced to him, by Mr. De Forrest, a respectable citizen of Madison (who was well known to Mr. Paine), on the day named in the indictment, when the defendant stated that he was getting short of funds, and wished to sell a draft upon Clark, Dodge & Co., of New York City; that after a little conversation Paine gave him the check of the firm of Wright & Paine on the State Bank, for a draft drawn by the defendant upon Clark, Dodge & Co., of New York city, for two hundred and fifty dollars, with whom he said that he had this amount of money deposited. All this testimony was objected to by the counsel for the defendant as tending to prove the obtaining of the property of Wright & Paine under circumstances entirely different from the pre-tences set forth in the indictment. We do not suppose there is any room for doubt as to the inadmissibility of this evidence [687] under the indictment It is an elementary principle that the prosecution must prove the pretence as stated in the indictment and that any variance in substance between the pretence laid and that proved, will be fatal. Arch. C. PL, 294, and authorities cited. It is certainly strange that the pleader did not, in the case at bar, set forth, verbatim, in the indictment, with the usual averments, the draft drawn by the defendant upon Clark, Dodge & Co., which seems to have been the real and paramount inducement or motive for Wright & Paine giving him their check upon the State Bank. It was not the pretence that the defendant was a wholesale grocery dealer in New Orleans, or that he had money on deposit with Clark, Dodge & Co., in New York, which caused them to part with their property, but the material fact that he sold them his draft upon Clark, Dodge & Co., for two hundred and fifty dollars, representing that he had funds on deposit sufficient to meet it and that it would be promptly paid when presented. His draft was the decisive inducement, the material representation, the real false pretence that caused them to part with their property, and constituting the substantive part of the offence, should have been set forth in the indictment It is very evident that the defendant ought not to be convicted under this indictment upon such a state of facts, and we have no other course left but to set aside the conviction and discharge the defendant.