Thomson v. People

Breese, J. As the record in this case does not purport to contain all the evidence given on the trial, we are left to decide alone upon the sufficiency of the indictment. Before considering the indictment, a preliminary objection, growing out of the rejection of Hiram C. Best, as a juror, will be disposed of. When examined touching his qualifications, he said he had conversed with a witness in the case, and 'formed an opinion as far as he heard—that he believed what he heard, but that he had not formed an opinion as to the guilt or innocence of the prisoner—that he had formed an opinion as far as he had heard. It is not disclosed who the witness was, or on what branch of the case he talked. The juror might have formed an opinion of that matter of which he spoke with the witness, but did not, as he declares, form any opinion of the guilt ■ or innocence of the prisoner. He was clearly a competent juror. The indictment contains two counts substantially alike, in both of which alleging that the defendant, “ intending by unlawful means to get into his possession the choses in action, money, goods, wares and effects, and other valuable things of the people of this State,” etc., without any allegation it was the property of the person sought to be defrauded, which we hold essential in cases of this character. That person must be alleged to be the owner of the property oiit of which he was defrauded. In the case of Sill v. The Queen, 16 Eng. L. & E. 375, the indictment alleged that R. Sill, late of, etc., unlawfully, knowingly and designedly, did falsely pretend to one H. Broome, that, (here setting out the pretenses,) by means of which said false pretenses, the said R. Sill did then and there unlawfully obtain from the said H. Broome, two bills of exchange of the value and for the payment of £120, respectively, and one bill of exchange of the value and for the payment of £240, with intent then and there to cheat and defraud him, the said Broome, of the same; whereas, in truth and in fact, etc., (negativing the truth of the pretenses alleged.) On conviction, the judgment was reversed in Queen’s Bench, on the ground of the omission to state the ownership of the property. This is necessary to exclude the fact of the defendant having obtained his own goods or money, or of their being derelict, in which case there would be no offense in getting possession of them. Nor does the indictment allege in either count, that defendant knew the prosecuting witness was incapable of learning the art he contracted.to teach him. The evidence, as far as it appears on the record, tends rather to show a breach of contract than a criminal act—a private rather than a public wrong; but as all the evidence is not before us, we cannot say what is behind. We think the indictment so defective that no judgment can be pronounced on the verdict, and we accordingly reverse the judgment. Judgment reversed.