saved.] The sole question now is, was there a legal duty on the part of the prisoner to procure, or attempt to procure, for the deceased such assistance? Before the act simplifying the forms of indictments, the act by which the prisoner destroyed the life of the deceased must have been shown on the face of the indictment; in this case the duty must have been shown, and also that the prisoner had the means of complying with it. [WILLIAMS, J. If the indictment had stated the facts, it would have been quite sufficient, and so now the question is, "Do the facts create the duty?"] The duty must arise, if at all, from the relation of the parties, or by virtue of a contract. Here there was no duty arising from contract, and it was submitted that there was no legal duty on the prisoner as the mother of the deceased, who was an emancipated child, or her husband as the stepfather. The obligation imposed by the statutel on relations to support one another, extends only to blood relations. And it has been expressly held that a stepfather is not bound to support his wife's children by the first marriage.3 Then the 4th and 5th William IV.4 fixes the age of sixteen as that up to which time a stepfather shall be bound to support the children of his wife by a former marriage. If there is no obligation after that age to supply food a fortiori there is no obligation to find medical assistance. In Rex v. Friend and Wife,5 the neglect to supply an apprentice of tender years with sufficient food was held to be indictable on the ground that there was a breach of duty created by contract. In Rex v. Squire and Wife, where the prisoner was charged with murder of an apprentice, who died from debility, and from want of proper food and nourishment, a married woman was held not to be responsible for not providing an apprentice with sufficient food and nourishment, though, if the husband had allowed her sufficient food for the apprentice, and she had willfully withholden it from him, she would have been. That decision has been since acted on in Rex v. Saunders,1 and Regina v. Edwards. There is no allegation in the case that the prisoner prevented her daughter from obtaining medical assistance. [WILLIAMS, J. The verdict must be taken as finding that the prisoner might have got a midwife if she pleased. There were two living near the spot, and one did come when sent for.] Again, there was no evidence that the prisoner had the means of providing such assistance. In Regina v. Chandler, an indictment for neglecting to provide an infant with sufficient food alleged that the prisoner, who was the mother of 9 1 43 Eliz. 2 Rex v. Munden, 1 Stra. 190. 3 Cooper v. Martin, 4 East, 76. 4 ch. 76, sec. 57. Russ. & R. 20. 61 Russ. on Cr. 19. 77 C. & P. 277. 88 C. & P. 611. 1 Dears. C. C. 453; 6 Cox, Cr. Ca. 519. the child, had the means of doing so; it was not proved that she actually had the means of doing so, but only that she might have obtained relief by applying to the relieving officer, and it was held that this was not sufficient to support a conviction. And in Regina v. Hogan,1 it was held that an indictment for abandoning a child without having provided any means for its support, should state that the prisoner had the means of supporting the child. Carter (M. Bere with him) for the prosecution. The jury have found criminal neglect on the part of the prisoner, and it is submitted that there was a duty on the part of the prisoner sufficient in law to sustain the conviction. There is a natural duty recognized by law in parents to support their children, and there is no time pointed out when that duty is to cease. If parents have not the means for providing proper food and nourishment for their infant children, who are incapable of taking care of themselves, it is their duty to apply for parochial assistance, and, therefore, when a married woman, who having a child under such circumstances, willfully neglected for several days going to the union for the support of it, she knowing that such neglect was likely to cause the child's death, she was held to be guilty of manslaughter.3 ERLE, C. J. The proposition I am reported to have laid down in that case contemplates death, which I apprehend was a tolerably safe proposition. 4 Carter. In Regina v. Middleship, upon an indictment against the prisoner for the manslaughter of a new-born child, which had dropped from her whilst on the privy and had been smothered in the soil, it was hinted that if the jury were of opinion that after it had been born the mother had the power of procuring such assistance as might have saved the child's life, and she neglected to procure it, she was guilty of manslaughter. The following cases were also quoted: Regina v Marriott,5 Rex v. Cheeseman,6 Rex v. Ferguson, Rex v. Walters, Rex v. Huggtns, Rex. v. Simpson.10 8 ERLE, C. J. We are to consider whether, on the facts in this case, there has been an omission of duty on the part of the prisoner, making the prisoner liable to the felony of manslaughter. It is extremely important that the boundaries of crime should be defined as far as they reasonably can be, and it is obvious that there is very much indefiniteness in the use of the terms neglect and want of ordinary care. Taking the facts to be that the prisoner did not ask for the aid of a midwife at 1 2 Den. C. C. 277; 5 Cox, Cr. Ca. 255. 22 Steph. Black, 296, 297; 43 Eliz., ch. 2, sec. 7; 4 & 5 Will. IV., ch. 76, sec. 56. Reg. v. Mabbett, 5 Cox, C. C. 339. 45 Cox, C. C. 275. 68 C. &. P. 425. 7 C. & P. 455. 8 Russ. on Cr., 488. 10 1 Lew. C. C. 172. a time when her daughter was suffering the pains of child-birth, and in the course of which a difficulty occurred, which terminated in her death, was that a breach of duty for which she is responsible, in a criminal court, for not asking a midwife to come and attend her daughter? If she had used ordinary care, she might have known where a midwife was to be found, and who would have come; but there is no evidence that she had any means at her command to pay for such professional aid. It can not be a ground of indictment that she failed to ask for aid which might, perhaps, have been given, without her incurring any expense. In a great many cases child-birth occurs without the necessity of any professional aid at all. It is enough to say that this case does not fall within any of the authorities or the principle of them. In the case of persons imprisoned, and who are under the care of those who have the custody of them, there is a duty cast by law on the part of those who have such custody to provide them with all the necessaries, and so in respect of the relation of parent and child, and some other cases. So, also, where the relation by contract of master and apprentice exists, the same duty may arise. But this case is that of a parent and daughter beyond the age by which a duty is cast by the statute to maintain and support her, the daughter being entirely emancipated. In my judgment, therefore, the question must be answered in the negative, as I can not find any authority or principle according to which the prisoner has been guilty of a breach of duty, making her criminally responsible. WIGHTMAN, J. I am of the same opinion. I put my judgment on the ground that the circumstances stated do not show any legal duty to do that for the omission of which the prisoner was charged. WILLIAMS, J. I am of the same opinion. No doubt, morally speaking, the prisoner has been guilty of a shocking crime, but not of a legal 1. To Constitute the Crime of Obtaining Property by false pretenses, in addition to proving the false pretenses, and that the money was paid or the property parted with in reliance thereupon and under the inducement thereof, it must also be proved that the false pretenses were made with intent to cheat and defraud another. Whether or not there is a fraudulent intent is to be found as a fact by the jury. 2. Mere Silence and Suppression of the Truth or withholding of knowledge upon which another may act is not sufficient to constitute the crime of false pretenses. 3. Case in Judgment.-Defendant purchased some railroad stock for complainant, and agreed that he would carry the same for complainant on a margin, complainant to pay for the same by installments. After the receipt of the margin and several installments, defendant, who was at that time solvent, without notifying complainant sold the stock, and continued thereafter to receive installments of the price from complainant, who was ignorant of the sale, and who received accounts from time to time from defendant by which it appeared that defendant still was carrying the stock. For the obtaining of one of these latter installments defendant was indicted for false pretenses. Held, that in the absence of representations made by him at the time, defendant was not guilty of obtaining this installment of the price by false pretenses. Appeal by defendant, Lorenzo Baker, from a judgment of the General Term of the Supreme Court, in the Third Department, of December 27, 1883, affirming a judgment of Court of Sessions of Rensselaer County, of December 15, 1881, Hon. JAMES FORSYTH, County Judge, presiding, convicting defendant of obtaining money by false pretenses, upon an indictment found February 18, 1880. The facts sufficiently appear in the opinion of the court. It was stipulated by the prosecution and defendant that all proceedings on the appeal should be governed by the Code of Criminal Procedure. Smith & Wellington, for defendant, appellant. I. No false pretense, as set forth in the indictment, was ever made. No false representations were made for a year at least prior to the receipt of the $575 named in the indictment, and for over two months before the $575 was received there was absolute silence, and the money was sent without Baker asking for it or even knowing it was to be sent.1 II. It will not avail the prosecution to say the false pretenses were that Baker had bought the stock on April 9, 1873, whereas, in fact, he had not bought it, for such a pretense is not charged in the indictment. The contrary is alleged to be the truth. And there is no proof of such a pretense later than April 21, 1873. III. If there is fraud in the transaction Baker was only guilty of a fraudulent concealment of facts, which is not indictable.2 IV. To sustain the conviction it must appear that the prosecutor parted with his money by reason of some of the pretenses laid in the indictment. In the absence of direct proof the reliance may be inferred from the facts and circumstauces proved, provided the inference can be legitimately drawn therefrom.3 There is no direct proof whatever in this case that Meeker was relying on the pretenses laid in the indictment, to wit: that Baker was carrying 1 Reg. v. Gardner, 1 D. & B. Crown Cases, 43. 2 Whart. Cr. L., Vol. II., sec. 1170, note; Ranney v. People, 22 N. Y. 416. Therasson v. People, 82 N. Y. 240. stock for Meeker which, in fact he had sold. There is direct proof that Meeker was not relying on the pretenses laid in the indictment — even supposing them to have been made as charged. This is the testimony of the prosecutor himself on cross-examination; that he relied solely on Baker's promise to deliver the stock to him when it should be paid for. The qualification expressed by Meeker that he would not have sent the money had he known Baker had never purchased the stock, does not modify this position, for the People had no right under the indictment to prove the stock was not purchased, and the proper objection by the defendant was taken to that line of evidence.1 The indictment does not make the non-purchase, but the non-carrying of the stock the negative of the false pretense. Further, it mattered not whether Baker had bought the stock on April 9, 1873, so long as he on that day sold the stock to Meeker, and so notified Meeker and carried it as Meeker's stock. The only direct proof of Meeker's reliance offered by the prosecution in no way relates to the pretenses laid in the indictment. We have then the extraordinary circumstances of months elapsing between the alleged representation and the delivery of the money; no direct proof whatever that the prosecutor relied on the pretense laid in the indictment; circumstances pointing to a reliance on everything but the pretenses alleged in the indictment; and finally the direct, unequivocal declaration of the prosecutor that he was relying solely and entirely on a promise. A promise, however false, is no foundation for a criminal charge.2 V. There was a contract by which Meeker was obliged to pay Baker the purchase price of the stock. Any false pretense by which one is induced to pay a debt will not warrant a conviction under the statute. The carrying of the stock continuously was no part of the original contract. And also, the alleged pretenses were made after the contract between Baker and Meeker was completed, and the payments were all made pursuant to this contract.3 VI. It was an error to refuse to strike out the alleged statement made by Baker that he never had bought the stock, as the pretenses must be proved as laid, and any matter admitted in the indictment need not be proved by the defendant and can not be disproved by the prosecution.4 The court erred in allowing a witness to testify that Baker had admitted he had never bought the stock, which, under the indictment, 1 Dilleber v. Home Ins. Co., 76 N. Y. 567. 2 Ranney v. People, supra; People v. Tompkins, 1 Park., 239; People v. Conger, 1 Wheel. 448; People v. Blanchard, 90 N. Y. 314. 8 People v. Thomas, 3 Hill, 169; People v. Haynes, 14 Wend. 560. 4 Glachan v. Com., 3 Met. (Ky.) 234; Paige v. Willett, 38 N. Y. 31; Van Dyke v. Maguire, 57 N. Y. 429. |