People v. Cummings

Henshaw, J. The indictment charged the obtaining of the property of C. Schnelle by means of false and fraudulent pretenses. Defendant was convicted, and appeals from the judgment and-from the order denying him a new trial.

His first attack is upon the form of the indictment. It will serve no beneficial purpose to set out in full this pleading, which is of great length, and, without doing so, no satisfactory analysis of appellant's objections thereto can be made. It must suffice to say, that after a critical examination we hold the indictment to be sufficient in law to charge the appellant with the designated offense.

The gravamen of the charge is this: That in an exchange of property induced to be made by Schnelle under the fraudulent representations of Cummings, Schnelle was defrauded of “his, C. Schnelle’s, promissory note for the sum of one hundred and seventy-five dollars, which said note was dated October 3,1894, and was payable thirty days after date in gold coin of the United States, and said note was paid by said C. Schnelle in gold coin of the United States on or about the sixteenth day of November, 1894, to the assignees of said James H. Cummings, which said note was the [499]personal property of said C. Schnelle, and was of the value of one hundred and seventy-five dollars, and of the goods and personal property and moneys of the said C. Schnelle.” Under the proofs it was disclosed that the note was executed by C. Schnelle and L. W. Schnelle as joint makers. The instructions followed the indictment, and proceeded upon the theory that the note was the promissory note of C. Schnelle. In this respect the cause is identical with People v. Reed, 70 Cal. 529, where it was held that an indictment for obtaining under false pretenses a promissory note alleged to have been executed by the person defrauded is not sustained by evidence showing that the note was jointly executed by him and another.

It is not sufficient answer to this to say, as is here urged on behalf of the people, that, as between C. Schnelle and L. W. Schnelle, L. W. Schnelle was but a surety. The question is the simple one of a variance between a criminal pleading and the proofs made thereunder.

The only other objection which we deem necessary to be considered is that which goes to the form of the verdict, and of necessity to the judgment which must be supported by it. The jury found that; “The defendant is guilty of defrauding C. Schnelle of the note of one hundred and seventy-five dollars in the indictment mentioned.” A good verdict must contain either in itself or by reference to the indictment all the elements of the crime. If silent on some element of the crime, the verdict will not sustain a judgment. (1 Bishop’s New Criminal Procedure, sec. 1005.) It is quite apparent that this verdict, standing alone and without reference to the indictment, is not sufficient. The defendant is found “guilty of defrauding C. Schnelle” of a promissory note. There is no such crime known to the law. The only reference to the indictment is a reference whereby the identity of the note is fixed If the jury had found the defendant guilty of defrauding C. Schnelle of the note for one hundred and seventy-five