State v. Cowdin

The opinion of the court was delivered by Horton, C. J.: The information filed in this case sets forth false pretenses within the statute, and the court committed no error in overruling the motion to quash. We held, In re Snyder, 17 Kas. 542, that it must appear that the pretense relied upon relates to a past event or to some present existing fact, and not something to happen in the future’. Yet we further said in that case, that it is not necessary, to constitute the offense of obtaining goods by false pretenses, that the owner has been induced to part with his property solely and entirely by pretenses which are false; nor need the pretenses be the paramount cause of the delivery to the prisoner. In this case, it is averred in the information that the appellant falsely and fraudulently pretended and said that the money which he was then and there procuring by loan from one S. P. Eobbins, he was so procuring for the purpose and with the intent and design to pay the same to the prosecuting witness, one August Todman, in satisfaction of the notes and mortgage then held and owned by Todman, and to secure the settlement and dismissal of the action brought thereon and then pending in the court against him. It also sets forth in the information that appellant falsely and fraudulently pretended to the said Todman that he had come to him for the purpose of paying the notes held by the latter against him. These statements are false pretenses, as they are the representations of facts calculated to mislead, which are not true, and moreover, they are fraudulent representations of existing or past facts. The appellant was not procuring money from S. P. Eobbins or anyone else to pay the same to Todman to satisfy the notes and mortgage held by him; and the appellant had not come to Todman to pay the notes secured by the mortgage. The mere promise of the appellant to pay the notes and mortgage, not relating [274] either to a past or present event, would not support an information for false pretenses, as a promise is not a pretense; but as there are sufficient false pretenses of existing and past facts set forth in the information, blended, nevertheless, with a promise for the future, the pretenses are within the statute. Bishop says:. “The English judges hold that where the pretense and the-promise, blended together, acted jointly on the mind of the defrauded person as the inducement to part with his goods,, and he would not have parted with them by reason of the pretenses alone without the promise, the case falls within the statute. If this doctrine seems at the first impression to-carry the law far toward the shadowy ground of mere promise, a single consideration added to what has already been-said shows that it does not carry it over the line. Were a promise not permitted to intervene between the pretense and the cheat, without destroying the indictable quality of the-transaction, the statute itself would be rendered almost null. And no construction of any statute is allowable, the consequence of which is to nullify it.” (2 Crim. Law, 6th ed.,, §§ 427, 429; The State v. Dowe, 27 Iowa, 273.) The order and judgment of the district court will be affirmed. ■ All the Justices concurring,