#### The State *v.*Toney.

*False pretenses*— Title *to real estate may be subject of*— •Under *Section 7076, Revised Statutes*— Indictment *apprising party of charge*— Not *void for uncertainty, when.*

1. Section 7076, Revised Statutes, which makes it an offense to obtain by any false pretense, and with intent to defraud, any thing of value, applies to a charge for obtaining by false pretense, with intent to defraud, title to real estate situate in this state.

2. An indictment which apprises the party charged of the charge against him so that he may know from the language of the instrument what he is expected to meet and will be required to answer, alleges sufficient matter to indicate the crime and the person charged and is not void for uncertainty.

(No. 11762

Decided November 9, 1909.)

Error to the Circuit Court of Darke county.

At the January term, 1908, of the common pleas of Darke, an indictment was returned by the grand jury against the defendant in error, Oliver H. Toney, of which a copy follows:

“The State of Ohio, Darke county, ss:

“In the court of common pleas, of Darke county, Ohio, of the term of January in the year of our Lord one thousand nine hundred and eight.

“The jurors of the grand jury of the county of Darke and State of Ohio, then and there duly impaneled, sworn and charged to inquire of and present all offenses whatever committed within the limits of said county, on their oaths, in the name and by the authority of the State of Ohio, do find and present: That O. H. Toney, late of said *131county, on or about the 22d day of November, in the year of our Lord one thousand nine hundred and six, at the county of Darke aforesaid, unlawfully did falsely pretend,, with intent to defraud, to one Emily J. Barcalow Henizer, that he, the said O. H. Toney, and William Smith were the owners of and had a right to convey free of all incumbrances, the following described real estate, to-wit: Being the east half of the northwest quarter of section seventeen (17), township twenty-five (25), range four (4) east, in Oscoda county, state of Michigan, containing eighty (80) acres of land, more or less; and that said real estate was free and unincumbered; and that a certain abstract of the title of said real estate purporting to have been made and certified to by one James A. Browning, abstracter and attorney of Oscoda county, Michigan, and purporting to show a clear title to the lands aforesaid in said William Smith was true and genuine, by which false pretenses the said O. H. Toney then and there unlawfully did procure from the said Emily J. Barcalow Henizer a deed of general warranty for the following described real estate, situate in the county of Darke, in the state of Ohio, and in the city of Greenville, and being lot No. 1165 in Anderson, Riffle & Hart’s Addition to said city of Greenville, Darke county, Ohio, and being of the value of one thousand dollars ($1,000) ; whereas in truth and in fact, the said Oliver PL Toney and William Smith were not the owners of and had not the right to convey free of all encumbrance the above described real estate; and whereas in truth and in fact the said real estate was not free and unincumbered; and *132whereas the abstract of title which was presented to the said Emily J. Barcalow Henizer purporting to show a clear title to the said lands aforesaid, was not true and genuine, but was false, forged and counterfeited; and the said O. H. Toney at the time he so falsely pretended as aforesaid, well knew the said false pretenses to be false.

“Marion Murphy,

*“Foreman of Grand Jury.”*

To this indictment a demurrer was interposed by the defendant.' The same being overruled, a trial was had at the June term, 1908, which resulted in a verdict of guilty, the jury finding the value of the property obtained at the sum of seven hundred dollars. Motion for a new trial being overruled sentence was imposed of confinement in the penitentiary of eighteen months, and costs were adjudged against defendant. On error to the circuit court that judgment and sentence were reversed on the ground that the court of common pleas erred in overruling the demurrer, and defendant was ordered discharged. The state seeks a reversal of that judgment.

*Mr. John F. Maher,*prosecuting attorney, and *Messrs. Robeson & Yount,*for plaintiff in error.

Section 6794, Revised Statutes, defines the term “anything of value,” to include “things which savor of the realty, and are, at the time they are taken, a part of the freehold, whether they be of the substance or proceeds thereof, or affixed thereto,” and also “every other thing of any value whatever.”

*133The word “effects” will embrace lands, tenements, etc. *State*v. *Newell,*1 Mo., 248.

The rule of strict interpretation for criminal statutes does not hinder the courts from searching for the legislative will. *State*v. *Thatcher,*35 N. J. L., 445; *Maxwell*v. *People,*158 Ill., 248.

“Other valuable thing” includes everything of value *(People*v. *Stone, 9*Wend., 182); a nonnegotiable promissory note *(State*v. *Porter,*75 Mo., 171); the endorsement to a promissory *(State*v. *Blauvelt,*38 N. J. L., 306; *Robinson*v. *State,*53 N. J. L., 41); a promissory note is a “valuable thing” *(State*v. *Vandenburg,*159 Mo., 230); a contract and an assignment may be treated as property *(People*v. *Martin,*102 Cal., 558).

The following authorities also sustain the decision of the trial court as to the sufficiency of the indictment: *Woodruff*v. *State,*61 Ark., 157; *State*v. *Tripp,*113 Ia., 698; *State*v. *Patty, 97*Ia., 373; *In re Lazarus,*1 City H. Rec., 89; *People*v. *Turpin,*233 Ill., 452.

When the provisions of sections 7076, 6795, 7215 and 7216 are all considered with a view of ascertaining the clear intent of the legislature, there should be no difficulty in sustaining the holding of the common pleas court in this case. *Kennedy*v. *State,*34 Ohio St., 310; *Tarbox*v. *State,*38 Ohio St., 581; *Williams v. State, 77*Ohio St., 468.

*Mr. T. C. Miller*and *Mr. D. W. Bowman,*for defendant in error.

It is well settled, that we have no common law crimes in this state, and that we must look to the *134statute to ascertain the offense charged. *Johnson*v. *State, 66*Ohio St., 59; *Sutcliffe*v. State, 18 Ohio, 469; *Mitchell*v. *State,*42 Ohio St., 383; *Smith*v. *State,*12 Ohio St., 466.

A statute defining a crime can not be extended by construction to persons or things not within its descriptive terms, though they may appear to be within the reason and spirit of the statute. *State*v. *Meyers,*56 Ohio St., 340; *United States*v. *Wiltberger,*5 Wheat., *76.*

But where the legislature b}^ statute adopts or creates an offense which was a crime at common law, it is proper to resort to common law in order to ascertain the true meaning of the statute. *Railroad Co.*v. *Keary,*3 Ohio St., 202.

And notwithstanding the common law of England and the statutes of the British Parliament were made operative as law in this state by the territorial act of October 1, 1795, and were repealed by the act of January 2, 1806, it does not follow that the common law of England is not of force in this state. *Drake*v. *Rogers,*13 Ohio St., 29.

At common law personal property only was the subject of this offense and it was confined to very narrow limits. *Rex*v. *Wheatley,*2 Burr., 1125; Act of 33, Henry VIII; Statute of 52, George III; Wheeler’s Criminal Cases, 179; 3 Chitty’s Criminal Law, 994-999; *People*v. *Cummings,*114 Cal., 438; *Cross*v. *Peters,*1 Me., 387.

Most of the American statutes are modeled on these two English statutes.' This is true in this state, section 12 of the act of March 8, 1831 (29 O. L., 144, S. & C, 429), being almost an exact duplicate of the act of 30th George II.

*135But it is contended that as the clause, “money, goods, merchandise or effects, whatsoever,” was omitted from section 7076, Revised Statutes, at the time of the revision, and the phrase, “anything of value,” substituted therefor, a radical legislative change in definition was thereby intended, and real property made the subject of false pretenses.

But this by no means follows. The code commissioners had no authority to legislate, and their power to change was very limited and did not extend to matters of substance. *Allen*v. *Russell,*39 Ohio St., 338; 72 O. L., 87.

Where all the general statutes of a state, or all on a particular subject, are revised and consolidated, there is a strong presumption that the same construction which the statutes received, before revision and consolidation, should be applied to the enactment in its revised and consolidated form. *Allen*v. *Russell,*39 Ohio St., 336; *State*v. *Eno,*131 Ia, 621; *State*v. *Black,*75 Wis., 493; *State*v. *Gillespie,*80 N. Car., 397.

The New Jersey statute uses the words “money, wares, merchandise, or other valuable thing,” and it was held that the legislature intended to denounce as a crime the obtaining by deceit of every valuable thing of a personal nature. *State*v. *Thatcher,*35 N. J. L., 445.

Under the English statute, as well as the act of March 8, 1831, the offense of obtaining property by false pretenses stood upon the same ground as larceny. The owner might also be induced by fraud, trick or device to part, not only with the possession, but with the title as well, and then the offense would not be larceny, but obtaining by false pretenses. *136*People*v. *Tomlinson,*102 Cal., 23; *People*v. *Shaughnessy,*110 Cal., 602; *Miller & Smith*v. *Commonwealth,*78 Ky., 15; *Aldrich*v. *People,*224 Ill., 626; *People*v. *Laurence,*137 N. Y., 517; *Commonwealth*v. *Lannan,*153 Mass., 287; *State*v. *Vickery,*19 Tex., 326; *State*v. *Ryan,*47 Oregon, 338; *Kellogg*v. *State,*26 Ohio St., 15.

In some states this distinction beween larceny at common law and obtaining money by false pretenses and embezzlement has been swept away and all made larceny. *State*v. *Henn,*39 Minn., 465; *Mitchell*v. *State,*92 Ten., 670; *Maddox*v. *State,*41 Tex., 205.

Real estate could not be the subject of larceny because incapable of being possessed and asported. *People*v. *Williams,*35 Cal., 675; *Bell*v. *State,*4 Baxter (Tenn.), 428.

Being incapable of larcenous asportation, it was not regarded as requiring the same protection as personal property, and was not therefore the subject of either cheating or false pretenses. *State*v. *Eno,*131 Ia., 620; *State*v. *Burrows,*33 N. Car. (11 Ired.), 477; *People*v. *Cummings,*114 Cal., 437; *Commonwealth*v. *Woodrun, 4*Pa. L. J., 207; *State*v. *Layman,*8 Blackf. (Ind.), 330; 2 Bishop on Criminal Law (4 ed.), section 455; 2 Wharton’s Criminal Law (8 ed.), section 1204.

A reference to 60 O. L., 20; 60 O. L., 341; 66 O. L., 29; 69 O. L., 67'; 68 O. L., 87, referred to in section 6794, will disclose that all related to personal property. That the phrase as used in section 6794 included things savoring of realty, and not the realty itself. *Ball*v. *White,*39 Ohio St., 650.

*137The phrase “anything of value” is found in section 6856, Revised Statutes, defining the crime of larceny. The words “goods or chattels” are not mentioned therein. Yet, it is common knowledge that real estate is not the subject of theft.

The same phrase “anything of value” is found in sections 6835 and 6842, yet no one will contend that real estate is the subject of burglary or embezzlement.

The offense charged in the indictment is, in fact, selling the land without having title to the same, and should .have been framed under section 7079, Revised Statutes. *Kerr*v. State, 36 Ohio St., 614.

Therefore, as ' held by the circuit court, no offense was charged under section 7076. If so, then it is clear that the phrase “anything of value” as defined in section 6794 can have no application.

Spear, J.

The indictment was found and prosecution conducted under section 7076, Revised Statutes, which is: “Whoever, by any false pretense, with intent to defraud, obtains from any person anything of value, or procures the signature of any person, as maker, indorser, or guarantor thereof, to any bond, bill, receipt, promissory note, draft, or check, or any other evidence of indebtedness, and whoever sells, barters, or disposes of, or offers to sell, barter, or dispose of, any bond, bill, receipt, promissory note, draft, or check, knowing the signature of the maker, indorser, or guarantor thereof to have been obtained by any false pretense, shall, if the value o'" the property or instrument so procured, sold, bartered, or disposed of, or offered to be sold, bartered, or *138disposed of, is thirty-five dollars or more, be imprisoned in the penitentiary not more than three years, nor less than one year, or, if the value is less than that sum, be fined not more than one hundred nor less than ten dollars, or imprisoned not more than sixty nor less than ten days, or both.”

It was the opinion of the court of common pleas that the terms of the foregoing section are sufficiently comprehensive to embrace, as a thing of value, the conveyance of real estate, and so overruled the demurrer to the indictment. The circuit court, however, was of the opposite opinion, holding that the statute does not embrace or relate to real estate; in other words that the procuring of title to real estate by false pretense's cannot be punished under our statute; arid the foregoing states the principal question in the case.

We find ourselves in accord with the conclusion reached by the court of common pleas. It can hardly be urged with any show of reason that the term “anything of value” is not in itself sufficiently comprehensive to embrace things which savor of real estate, but it is urged that, taking the present statute in connection with the statute as it stood before the adoption of the section in its present form, it could not have been the intention of the general assembly to make any radical change in meaning. It is true that the language employed prior to the revision of 1880 related to transactions affecting personal property, and did not contain terms the equivalent of “anything of value,” and had it been sought to punish frauds relating to real estate under the statute as it. then stood the *139answer would have been that the alleged offense did not come within the purview of the statute. The words “anything of value” were made to take the place of “money, goods, chattels, merchandise, or effects whatsoever,” and the change is one of substance. The claim in support of the contention that the present statute cannot be held to cover fraudulent transactions relating to real estate is that the change was the work of the codifying commission, which had no authority to make changes in matters of substance, and that, as held in *Allen*v. *Russell,*39 Ohio St., 336, where the statutes have been revised and consolidated, a strong presumption follows that the same construction that would have been given to the statute before revision should be given to the revised and consolidated statute. But there is a possibility of carrying this presumption to unreasonable lengths, and indeed the same case is authority for the proposition that “where one or more sections are repealed and re-enacted in a different form, the fair inference is, in general, that- a change in meaning was intended,” and “if it be clear from the words that a change in substance was intended, the statute must 'be enforced in accordance with its changed form.” We think it would be unreasonable to apply the presumption first stated to the present case. Manifestly there was good reason for an enlargement of the scope of the statute. Frauds in relation to deals in real estate were becoming common, and- the importance of a change in the statute was plain. Nor is it accurate to treat the change in the statute as the work of the codifying commission. Their codification was *140submitted to, considered by, and adopted by the law making body of the state, the general assembly. It should not receive any less respect because the change may have been recommended by three commissioners learned in the law instead of being proposed in the first instance by some single member of the general assembly, and after all is said, the enactment receives its vigor and force as law by reason of its enactment by the general assembly, no matter from what source the inspiration came. Not only is there a change of phraseology in the statute, but there is manifestly a radical and far reaching change in the scope of the act itself. This rendering of the statute finds support, also, in the language of section 6794, where it is provided that in the interpretation of part four (the penal part of the statute) “the term ‘anything of value’ includes * * * things which savor of the realty, and are, at the time they are taken, a part of the freehold, whether they be of the substance or produce thereof, or affixed thereto * * * and every other thing of any value whatever.” It would seem strange if it were the intention to include within the protection of the statute the inferior things of value, such as farm produce, and at the same time to exclude from such protection the farm itself. The vigilant counsel have called attention to a number of authorities, several from other states, bearing with more or less pertinency upon the question in issue, which will be found cited in the reporter’s notes. We have not deemed it necessary to review them, the question being one affecting only the scope and purpose of our own statute.

*141The objection that, even if the statute be broad enough to embrace the fraudulent obtaining of title to real estate, nevertheless the indictment is bad for uncertainty, has not been overlooked. We do not think the point well taken. The test is, has the accused party been apprised in the indictment of the charge against him so that he may know what he is expected to meet and will be required to answer? This test, we think, is substantially and fully met by the averments of the indictment, and that there is. in the language of the statute of jeofails, “sufficient matter alleged to indicate the crime and person charged.”

This conclusion requires a reversal of the judgment of the circuit court and' an affirmance of the judgment of the court of .common pleas, and it will be so ordered.

*Reversed.*

Summers Davis and Si-iauck, JJ., concur.