People v. Thomas — 3 Hill & Den. 169

Majority

p. 169

The People vs. Thomas.

Headnote

A false representation tending merely to induce one to pay a debt previously duo1 from him, is not within the statatg^ggainSt obtaining property by false pretences, though payment be thereby obtained.

Accordingly, where an indictment charged that T., who held a promissory note against J., which was due, called for payment, and, with intent to defraud J., falsely represented the note to have been lost or burned up, whereby the latter was induced to pay it; held, insufficient to sustain a conviction, as not showing any legal injury resulting to J., nor an intent on the part of T. to work such injury.

So, semble, even had the indictment contained the additional fact that T., after obtaining payment of the note, negotiated it to another for value without no. tice of its having been paid ; especially, if there was no averment that T. designed negotiating it when he made the representation.

Cee.tioe.aui to the Oneida general sessions, where Thomas was convicted of obtaining money by false pretences, of one

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Jones. The case turned upon the sufficiency of the indictment, which charged substantially the following facts : Jones, having executed his negotiable note to Thomas for $28,28, dated ..the 19th of February, 1838, and payable one day~aTEer date, the latter, in March afterward, called fdr payment, falsely pretending to Jones that the note had either been lost or burned up; by which false pretences Thomas unlawfully, &c. obtained from Jones the sum of $28,28,.wdt»h intent to cheat and defraud Jones ; whereas in truth, &c. the note had not been lost or burned up, all which the said Thomas, when he made the false pretence and obtained the money, well knew, &c.

Evidence was given, at the. trial, of the above facts; and also, that in March, 1840, Thomas negotiated the note, for value, to one Anson Shove, without apprizing the latter that it had been paid. The court below instructed the jury that the proof was sufficient to convict; to which the defendant’s counsel excepted. A verdict was rendered, finding the defendant guilty.

C. Tracy, for the.,defendant.

T. Jenkins, (district attorney,) contra.'^'".

Non constat from the indictment, that Jones sustained any damage by the false representation; nor that there was an intent on the part of Thomas, at the timg of the representation, to work any damage. The note wasduejand payment made. This w^^^jinhy^cpps^equence—a thing which Jones was bound to do. A false representation, by which a man may be cheateiPTnto his duty, is not within the statute. It was said in argument that the subsequent negotiation of the note by Thorpas obviated the difficulties adverted to. The note being ovser due when the latter fact took place, it is difficult to see judicially, that Jones would be injured by it. Whether he would or would not, is merely speculative, depending on his precaution in providing himself with proper evidence. It is enough, however, to say that the indictment does

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not charge the subsequent act of negotiation as entering into the defendant’s design when he made the representation - nor is the act itself even mentioned.

New trial ordered.^[1]

(a) (a) The following cases decided since the present statute against obtaining goods &c. by false pretences, (2 It S. 677, § 53,) will, together with the principal case, show the limits within which our courts have thus far inclined to confine it: The People v. Stone, (9 Wendell, 182 ;) The People v. Genung, (11 id. 18 ;) The People v. Haynes, (id. 557 ; S. C. on error, 14 id. 546 ;) The People v. Herrick, (13 id. 87 ;) The People v. Gates, (id. 311 ;) The People v. Clough, (17 id. 351 ; The People v. Galloway, (id. 540 :) The People v. Kendall, (25 id. 399 ;) and see Gary v. Houghtailing, ( 1 Hill, 315 , 316.)