Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1901-12-26
said bank to the credit OF The county

IN saln Dank 10 tne credit oil the county
treasurer,
(g) That the said Rettew, as receiver of
taxes and county treasurer, or either OF
them, or us an individual, had no power to
draw any of said moneys out of said bank
by any check or order made and signed by
himself or otherwise, not even his own
salary.
(h) The said account of said county
treasurer in said bank was entered and kept
In the general banking book or deposit
ledger of the said bank In exactly the seme
manner as any other account, differing In
no way from any of them.
| ID That the cash book of the said Horace
q. Rettew, receiver of taxes and county
treasurer, produced in evidence in this
cause Is book kept by MIR. Rettew, or his
agent, for their own convenience, not In
any way connected with the bank books.
3. A variance betwean any essential al
legation of an Indictment and the proof is
fatal to the in1ictinent. MIR. Bird here cited
authorities in defence ofhis argument.
One essential to the f,isdemeanor of OBJ
tanning money, &c. ufluer false pretences
in this State in the owNfrship OF the money,
&C., which must be alihged in the indict-
ment and proved as aisHWed
a. The indictment allN2es that the money
obtained by the dsfeDT3st by the false pre-
fences, was the propef$N Of Horace q. Ret
tew, receiver of taxes Hn<1 .ounty treasurer, DC.
The proof is that tn *snOney obtained by
the ALLEGED false preteA4fs whs not the prop
erty OF Horace q. Ketttf, receiver OF taxes
and county treasurer, bNcause it had been
deposited in the FarmeN Bnnk TO the credit
OF the county treasuffr OF New Castle
county, and nos HpracN3, Rettew, receiver
of taxes and county treasurer.
Because it had bee4 made general de-
post In the Farmerss Bank and thereby
became the property OF tha bank, with which
Horace q. Rette~, rdfeiyer of taxes and
county treasurer had Nothing to do, the
relation ot debtor and frreqitOr between the
bank and the depositlo8 having been thereby
esta ablished. III
The relation betwe& the bank and
general deposition is subt that OF agent and
principal, but merelyKthat of debtor and
creditor.
An essential allegatibn uf the indictment
Is that Horace q. Rettew, receiver OF taxes
l and county treasurer, BY means of false pre-
tences DC, was deceiyai and defrauded.
The proof showed ID Is admitted, that
Horace q. Rettew, Wceiver of taxes and
, county treasurer, was x>ot deceived or de-
fTauded RnG he has MI nor cannot sustain
any loss by reason Wi the said false pre-
tences, either as an in4 ividual or an official
OF this county.
8. That in order to CONSTITUTE statutory
offence of obtaining money, &c., under false
nretences the following requisites are neces-
, sary and must concur:
(al The pretence must be false repre-
sentation as to some past or existing cir
cumstance and not a mere expression of
opinion or promise.
(b) It must be knowingly false.
tc) 1t must be made with intention to de-
, fraud.
(d) 1t must be calculated to defraud.
lei 1t must deceive ana defraud that is, it
must be believed and the property must be
parted with because of the representation.
That before charge of false pretence can
be sustained it must&ppear that the person
from whom the property was obtained was
actually defIauded and sustain the law.
For the above and foregoing reasons il Is
: respectfully submitted to county here that
the motion of the defendant, by its said
attorneys to instruct the jury at this State
of the case to render verdict of not guilty
must prevail.
, In concluding, the attorney said that
if the law was NOT sufficient to allow
} the Indictment OF the. defendhnt, it was
not the fault of the attorney general,
! and no ones fault except the Legis-
lature. And il there were any doubt
, in the minds Of the court OF the suffi-
cienoy of the indictment. that doubt
} should be 10 the benefit of the de-
fendaut.
ATroRSEY-GENERAL WARD REPLIES.
" Attorney General Ward replied to Mr..
. Bird and first disposed of the poiut that
there are two Offices in the receiver Of
taxes and county treasurer. He showed
from the act that the two ars combined
in one officer, the legal title being
receiver of taxes and county treas
! urer." He quoted from the act to show
that the receiver OF taxes and county
treasurer must not disburse any money
except upon warrantsa drawn by the
= county comptroller OF the president OF
the Levy Court.
Coming to the question Of the title
: of Mr.. Rettew in the money, Mr.. Ward
said he believed the act itself decides
. the QUESTION, and that we have nothing
. to do with the relations between Rettew
and the bank. The only person under
heaven who can uisburse tie money OF
the county is the county treasurer and
> receiver of taxes. And whatever may
: be Horace g. Rettew's conception oil
his powers as to disbursing this money,
we stand upon the averment in the in
dictment as agreeing with the statute.
The county treasurer and receiver oil
taxes is required to give bond, which
s would mean nothing If he had no
o control over it, aud he. is required to
deposit all funds in the Farmers Bank.
= Yet the meaning OF the act ia not that
!. the bank is the county treasury, but
that the county treasure ia the treasury.
The drafts are not paid by the Farmers
: Bank as bank at all. The warrant in
. the case shows that it is drawn upon
= the county treasurer and receiver oi
4 faxes by the Le y Court, and is to be
charged to the appropriation for the
o First district The Farmers Bank is
I not mentioned in the DRIFT at all.
9 The law provides that the receiver ol
= taxes and county treasurer cap disburse
: money only upon the order OF the presi.
y dent of the Levy Court and comptroller,
9 and the warrant in this case is entirely
: in accordance with the law, and the
= county treasurer and receiver of taxes
7 is the only disbursing officer of the
county.
y Mr.. Ward hold that neither the presi.
( dent o. the Levy Court nor the comp
v troller had possession of the county
!, money, their duty being to sign the
y warrant directed to the receiver oi
y taxes and county treasurer.
!. He declared that the act made it i'm.
4 perative on the State to lay the title o
9 the monsy in the receiver of taxes and
!. county treasurer. The question i:
:, whether, as representing the treasury
of New Castle county, Mr.. Rettew 10
9 his official capacity. was defrauded
4 Mr.. Ward held that John Lynn,
e knowing the manner of getting money
/, from the county, submitted a false bill,
8 bearing his "O.K which deceived
Comptroller Kelley, and ON which Lynn
= eventually received the money through
$ a bank. 1t amounted in effect to the
v payment OF the money by the county
Z treasurer direct.
The attorney general presented author.