State v. Webb

26 Iowa 262

Opinion

Cole, J.

— The indictment does not negative the fact that the defendant was the owner-of the farm, but only that the representations or pretenses that it contained one hundred and seventy-five acres of plow land and had good fences, were not true. The quantity of plow land and the quality of the fences, under the averments of the .indictment, and in the absence of any averment showing the materiality of the alleged misrepresentation as to whether it was one acre or one hundred acres less than represented, were matters of opinion only. The authorities are agreed that, upon mere matters of opinion, an indictment for false pretenses cannot be predicated. People v. Tompkins, 1 Parker, 224, 238; Reese v. Wyman, 9 Geo. 430; Reg. v. Oates, 29 Eng. Law and Eq. 552; State v. Tomlin, 5 Dutcher, 13.

Further than this, it may well be questioned whether the indictment sufficiently charges that the money was obtained by means of the false representations or pretenses stated in the preceding part of the indictment. There is, at least, no averment that the money was paid ,to defendant on account of the rent of the premises.

Reversed.