State v. Church.

STATE vs. CHARLES W. CHURCH.

Upon a prosecution for obtaining property by false pretences, held that false statements made by the accused with regard to the transaction six months after it occurred, were not admissible as going to show that he acted at the time with a fraudulent intent.

The accused and one F had agreed to exchange certain lands, the latter to pay to the former a certain sum in cash, and the former to make a mortgage back, upon the land received by him, to secure a note for an agreed amount to be made by some responsible person. F executed a deed of his own land to the accused, and delivered it with the money to an agent, who was to deliver the same to the accused if the conditions were complied with, and get his deed and the mortgage. The agent delivered the deed and money and received from the accused his deed and mortgage. The agent then enquired whether the note was a valid one and the maker of full age and responsible. The accused replied that he was entirely responsible and of full age. In fact he was without property and a minor. The agent believed the statement of the accused to be true, and but for its being so made and believed would have demanded back the deed and money. The statement was not communicated to F until the next day. Held, upon an information for obtaining the property of F by false pretences, that as the false representations were made after the delivery of the deed and money, they could not be regarded as having induced the delivery.

Whether the statute with regard to false pretences, under the terms "any money, goods, chattels, or other valuable thing," embraces land-(discussed in the argument).

INFORMATION against Charles W. Church and Newton S. Waldo, upon several counts, for obtaining land and money by false pretences; brought to the Superior Court in Hartford County, and tried to the jury, on the plea of not guilty, before Culver, J.

Upon the trial the Attorney for the State offered evidence to prove, and claimed to have proved, the following facts: In May, 1873, one John W. Finley was the owner of a farm in Glastonbury, and employed his daughter, Mrs. Lincoln, to sell the same, and she placed the farm in the hands of the defendant Waldo for sale. Waldo proposed to Church, who was the owner of a piece of land in Hartford, to exchange the farm for his land. The farm was unincumbered, and the property of Church was mortgaged to the amount of $4,000, which indebtedness Church had assumed and agreed

State v. Church.

to pay, and was liable therefor. The farm was valued at and worth $7,000, and the land of Church was valued at and worth $8,000, including the mortgages. Church proposed that Finley should assume the mortgages, and that he would thereupon give Finley a mortgage for the same amount upon the farm, and Finley should pay the $1,000 difference in cash; but Finley refused to assume the mortgages. Church thereupon proposed to Waldo that he should give Finley a mortgage upon the farm, for $1,000, to secure a note signed by some person other than Church, and Waldo communicated this proposal to Finley, who approved of the same, provided the note should be signed by some person who was responsi ble. Finley thereupon executed a deed of his property to Church, and delivered the same to Mrs. Lincoln, and authorized her to deliver the same to Church, and pay him $1,000, upon the following conditions: that Church should deliver to her a deed of his property; also a note of some responsible person, for $4,000, and a mortgage of the farm by Church to secure the same; also an agreement by Church that Finley should only be obliged to pay seven per cent. on the mortgage on the property of Church, upon which it had been originally agreed that ten per cent. should be paid, and that Church should agree to hire the property so conveyed to Finley, for a year, at a rent of $600; and Mrs. Lincoln came to Hartford and gave the deed and the thousand dollars to Waldo, with directions to him to deliver the same on the above conditions. Waldo thereupon delivered the deed and money to Church, and Church delivered to Waldo a deed of his property, an agreement in relation to interest, and to hire the house; also a mortgage of the farm, and a note secured thereby, which note was not the note of a responsible person, but of a minor, who had no property.

Church stated to Waldo, that if Mrs. Lincoln was not satisfied with the deeds and papers, he would exchange them if he would bring them back. Waldo delivered them to Mrs. Lincoln, who on receiving them asked Waldo whether the maker of the note was responsible, and of full age, to which Waldo replied that he was responsible, was a man of large

State v. Church.

means and perfectly good, and was of full age. These statements were not communicated to Mr. Finley until the next day, and Mrs. Lincoln testified that if these statements had not been made to her, and she had not believed them to be true, she should have demanded the money and deeds back from Church, and if necessary would have taken proper legal steps to recover the property.

The counsel for the defendants thereupon asked the court to charge the jury, that even if they found the matters stated by Mrs. Lincoln, and claimed to be proved by the State, to be true, there could be no conviction upon the information, for several reasons.

1st. That upon the evidence it appeared that the false representations claimed were made after the delivery of the deeds, and after the transaction had been closed, and that it must be proved, to sustain the information, that the false representations were made before the $1,000 was paid, and the deed of the farm delivered to Church, and his deed and mortgage and note delivered by him.

2d. That unless the State proved that the false representations were known to Finley before he authorized the transaction, and before the deeds and money were actually delivered, so that thereby he was induced to authorize them to be delivered, no conviction could be had; and that as it was not claimed that the representations made to Mrs. Lincoln were known to Finley when he authorized the delivery of the money and deed, no conviction could be had.

3d. That the allegations in each count being that the false representations were made to Finley, and induced him to part with his property, those allegations, were not sustained by evidence that he had authorized an agent to convey the property before the false representations were made, and that such agent was induced to convey the property under the circumstances alleged, and without Finley's having any knowledge of a reliance upon the representations.

4th. That to authorize the admission of the evidence, or its effect as tending to prove any allegation in the information, it should have been alleged that the representations were VOL. XLIII.-60

State v. Church,

made to Mrs. Lincoln as the agent of Finley, and induced her to deliver the deeds.

But the court overruled all the claims of the defendants, and refused to charge as requested, but charged the jury that each of the counts was sufficient in law to warrant a convic tion, that the evidence was admissible, and that if the jury found the facts as claimed by the State, they were in law warranted in finding a verdict of guilty, on each and every count in the information; and also charged as follows:

"To convict either of the prisoners, you must be satisfied beyond a reasonable doubt that representations calculated to deceive were made by him; that these representations were false, and were made with intent to defraud; and that they induced Finley to part with his property. If any one of these conditions is not proved, the State fails to make out a case. If the representations were false, and the accused did not know it, or if Finley were not induced to part with his property by the false representations, the State must fail. Fraudulent intent must be proved as alleged. It is claimed that the State must fail because the statements were made to Mrs. Lincoln. If you find the statements were made to her, knowing she was acting as agent of Finley, it is the same in law as if they were made to Finley. The charge is, that the defendants conspired together to defraud Finley, and represented that the note in question was a genuine note. Very much depends on that fact as giving a coloring, for if they palmed off a forgery, knowing it to be such, it shows an intent to defraud. The State claims that the offense may have been committed if the signature is genuine. If you find that the prisoners made false representations as to the character and responsibility of the signer, and by means thereof obtained property with intent to defraud, the case is within the statute. You must be satisfied that the declarations were made before the transaction was consummated.”

The Attorney for the State in his opening evidence offered to prove a conversation between one Joslyn and Church in November, 1874, the deeds having been delivered in May preceding, in which it was claimed that Church said to Joslyn

State". Church.

that the signer of the note came here from New York, and had gone back; that he did not know him, or what his address was; and that he was a curbstone broker; which statements the Attorney for the State claimed were untrue. To the admission of this evidence the defendant Church objected as irrelevant and not admissible for any purpose, but the court overruled the objection, and admitted the evidence as tending to show that Church, at the time the money and deed of the farm were obtained, was actuated by an intent to defraud Finley, provided the jury should be satisfied that Church knew, as the Attorney claimed, that the statements so made to Mr. Joslyn were in fact untrue.

The jury having returned a verdict of guilty against both defendants, they filed a motion in arrest of judgment on the ground of the insufficiency of the information, which motion was overruled by the court. The defendant Church thereupon filed a motion for a new trial for errors in the rulings and charge of the court, and also a motion in error.

C. E. Perkins, in support of the motions.

1. The first two counts of the declaration, which charge the obtaining of land by false pretences, are insufficient. The statute under which this prosecution was brought, punishes the obtaining by false pretences "any money, goods, chattels, or other valuable thing." Rev. Stat. of 1866, p. 278. We believe no case can be found where obtaining real estate has been held to be included under such a statute. On the contrary, it has been distinctly held that it did not. State v. Burrows, 11 Ired. Law, 477; Commonwealth v. Woodrun, 4 Penn. Law J. Rep., 207. It is a well known rule of construing statutes as well as contracts, that general words added to particular only include other particulars of the same kind. State v. McGarry, 21 Wis., 496; State v. Sumner, 10 Verm., 587; Sandman v. Breach, 7 Barn. & Cress., 96; Queen v. Neville, 8 Adol. & El. N. S., 452.

2. It appears upon the motion, that Mr. Finley authorized his daughter to deliver the money and deed to Church upon certain conditions; that she gave the deeds and money to