Evening journal., 1901-12-19

actly the same manner as any other
account, differing in no way from many
Of them;
"rhat the cash book OF the said
Horace G. Rettew, receiver Of taxes
and county treasurer, produced in evil
dence in this cause is a book kept by
Mr.. Rettew. or his agent, for their own
convenience net in any way connected
with the bank books;
"A variance between any essential
allegation of an Indictment and the
proof is fatal to the Indictment CNr.
Bird here cited authorities in defense
of his argumenD.
cone essential to the misdemeanor OF
obtaining money, etc. under false pre-
lenses in this State is the ownership
Of the money etc. which must be an
legged ia the indictment end proved as
alleged;
The Indictment alleges that the
money obtained by the defendant by
the false pretenses was the property
! OF Horace g. kettew receiver of taxes
and county treasurer. etc;
"The proof is that the money OBJ
tanned BY the alleged false pretenses
was not the property Of Horace G. Ret
tew, receiver of taxes and county treas
urer, because it had been deposited in
the Farmers Bank to the credit OF the
County Treasurer of New Castle coun-
ty, and not Horace G. Rettew, receiver
Of taxes and county treasurer:
Because it had been made a general
deposit in the Farmers Bank. and
thereby became the property of the
bank with which Horace G. Rettew, re-
ceiver Of taxes and county treasurer.
had nothing to do The relation of
debtor and creditor between the bank
and the depositor having been there
by established;
THE relation between the bank and
a general depOsitor is not that of
agent and principal but merely that of
debtor and creditor;
AN essential allegation of the in
dictment is that Horace G.. Rettew. re-
ceiver of taxes and county treasurer,
by means of false pretenses, etc. was
deceived and defrauded;
The proof shows, and it is admit
ted that Horace G. Rettew, receiver
Of taxes and county treasurer. was not
deceived or defrauded. and he has
not, nor cannot sustain any loss by
reason of the said false pretenses,
either as an individual or an official
of this county;
THAT in order to constitute a statu-
tory offense Of obtaining money, etc.
under false pretenses, the following
requisites are necessary and must con-
cur;
w1lhe pretense must be false repr-
sentation as to some past or existing
circumstance and not mere expires
r-Ff Ton leo
1T must be knowingly false;
1T must be made with intention to
defraud;
1T must be calculated to de-
fraud;
1T must deceive and defraud; that
is, it must be believed and the prop
erty must be parted with because Of
THE representation;
THAT before a charge Of false pre-
tense can be sustained, it must APP
pear that the person from whom the
property was obtained was actually
defrauded and sustain the Jaw;
From the above and foregoing rea-
sons, it is respectfully submitted 10
the county here. that the motion Of
the defendant by its said attorneys to
instruct the county at this state of the
case to render a verdict of not guilty,
must prevail.
MR.. WARD REPLIES
Attorney General Ward replied to
IMr. Bird. He first showed that the
County Treasurer and Receiver Of
| Taxes are combined in one. He quoted
from the act Of the Legislature Great
ing the office to show that the county
Treasurer and Receiver Of Taxes could
not disburse any money except upon
warrants drawn by the County Comp
troller or the president Of the Levy
Court.
Regarding the question of owner
ship Of the money, Mr.. Ward said he
! believed the act itself decides the ques-
ton and that we have nothing to do
with the relations between Rettew and
the bank.
The only person under heaven who
can disburse the money OF the county
is the County Treasurer and Receiver
Of Taxes, and whatever may be Horace
G. Rettew's conception of his duties
and powers as to disbursing this
money. we stand upon the averment in
the indictment as agreeing with the
statute. The County Treasurer is re-
i quired to give bond, which would
mean nothing if he had no control
over the money. and he is required tc
i deposit all funds in the Farmers Bank
/, yet the meaning OF the act is not thai
the bank is the county treasury, but
lthatthe County Treasurer is the Treas
Jury The drafts are not paid by the
i Farmers Bank as a bank at all. The
warrant in the case shows that it is
! drawn upon the County Treasurer ano
y Receiver Of Taxes by the Levy Court
and is to be charged to the appropria
! ton for the First district. The Farm.
: ers Bank is not mentioned in the draf
at all
The law provides that the Receiver
of Taxes and County Treasurer car
disburse money only upon the order o
the president of the Levy Court anC
the Comptroller, and the warrant il
this case is entirely in accordance with
the law The County Treasurer or Re
: ceiver of Taxes is the only disbursinl
officer of the county.
Our county system is similar in this
q respect to the system of the State
wherein a warrant on the State Treas