State v. Lathrop

The opinion of the court was delivered by ‘

As one of the grounds of the demurrer is fatal to this indictment, the court do not deem it necessary to go into the other parts of the case.

The indictment is for obtaining certain goods and chattels of Blake & Hammond by false pretences. In an indictment for larceny it must be distinctly and positively alleged that the goods and chattels stolen were the property of some person named, or else some excuse must be stated for not naming the person who owned the property, as that it belongs to some person to the jurors unknown, &c. Archbold) C. P., in treating of the proof under an indictment for obtaining goods, &c., says that the prosecutor must prove the *282goods as stated in the indictment, for the rule in this respect, is the same as in larceny. In King v. Douglass, 1 Camp. 212, it was said to be a fatal variance if, on an indictment for obtaining money under false pretences, it appeared in evidence that the money did not belong to the person stated in the indictment, but to his servant; and the rule, in this particular was recognized to be the same as in an indictment for larceny. A more direct authority is found in the case of Regina v. Norton, 8 Car. & Payne, 350, in which, on an indictment under the statute 7 and 8 Geo. IV, c. 29, similar to the statute under which this indictment was found, it was held that the indictment was not good unless; in addition to the false pretences, it contains the requisites of a count for larceny; and if it do not allege the money, &c. obtained tó be the property of any person, it will not be sufficient, inasmuch as it could not, in that state, be pleaded in bar to a subsequent indictment for larceny. The precedents to which we have been referred, particularly those for obtaining money, &c. by false tokens or pretences, either contain the allegation directly “ of the moneys, &c. of the * said A. B.,” or that which is equivalent to a direct allegation of property. In this indictment, although it is sufficiently alleged that the intent was to obtain the goods and chattels of Blake & Hammond, and to defraud them of the same, it is not averred that the stoves, &c. were the property of Blake & Hammond. The indictment is defective in this particular, and should have been so adjudged by the county court, when the demurrer was decided. The judgment of the county court is reversed and judgment rendered that the indictment is insufficient.