The Wilmington daily Republican., 1901-12-19
SIN NE;L,I..,.E,NBURG.
MARKET AND SEVENTH STREETS

Tor either OF them. OF as Slnindigidua
had no power to draw ANY Of sa
'moneS out Of said bank by any chcc
Or Utdcr made and sjgUed Ay himse
ur otherwise not even his own salary
th1 The said account Of aid
ity Treasurer in said band was entel
< ed ana kept in the general banIiin
book or deposit lctgcrpf the aid han
Z in exactly the same manner as an
other account, differing ia no wa
from any Df them
IL That the cash book Of the sai(
Horace &. Rettew, Rcceiyero Of Take
and County Treasure. produced in c
ldcnce In this cause .S a b"Jk kept b,
Mr.. Rcttew or his agent for theiI
own convenience not in any way con
nectcd with the bank books
A variance between any essentia
allegation Of an indictment and lht
proof is fatal to the indictment.
. Mr.. Bird here cited authorities ii
defence Of his argument.
Of obtaining money etc. 'ndet false
prelenceS III this State in The owner.
ship Of the money. etc, which must
be alleged in tic Indictment and
proved rs alleged.
FIRST Fatal. VARIANCE.
4 The indictment alleges that
the money obtained by the deicndent
by the false prctcnses was the prop.
crty Of Horace G. Rettcw, Receiver
Of Taxes and county Treasurer, etc.
TEE proof is that the money obtain
ed by the alleged false prctcnses was
not The property Of Horace G. kettcw
Receiver VI Taxes and County Treas
urer, beCa use 1t had been deposited IN
the Farmers Bank to the credit of
the County Treasurer Of New Castle
County and not Horace e.. ..cttcw,
Receiver Of Taxes and Connty Treas.
urGr.
Because it had been made a gem
cral deposit in the Farmers Bank
aud thereby became the property
OF the bank. with which Horace G.
Rettew, Receiver nt Taxes and
Countv Treasurer had nothing to
do. The relation .! debtor and
creditor between the bank and the
depositor, having been thereby cs-
tab!ished.
The relation between the bank
and general depositor IL not that
OF agent and principal. but merely
that o! debtor and creditor.
Sccondiatal variance--andc cssen-
tial allegation of the Ind'ctmen. is
that Horace G. Rettcw. Receiver Of
Taxes aud County Treasurer. by
means OF false urctences. etc, was
deceived and deirauied
The proof shows and it is admit.
ted that Horace &. Ret,cw, Receiy.
CT OF Take, and County Treasurer
was not deceived or delrauded and
he has not nor cannot sustain anv
loss by reason OF the sad false pre-.
tenccs, either as an individual or
au Official OF this county.
4 That in order to constitute a
stat 'ut0ry offence o. obtaining money
etc, under tHle" prr'rlisCS the follow.
ING requisites are necessary and must
cuIrGr:
Gay The prr'rnrc 'nUSt ,c false
representation ahInS"nr past nyrX.a,-
lug circumstance and not a mere rX.
preston Of opinion or promise.
(D 1t must be knowingly false.
(c) 1t made with intention 10 de-
fraud,
(D 1t must be calculated to dc.
fraud,
(c) 1t must deceive and defraud;
that is, it must he believed and the
property must be parted with because
the representation.
y That before charge Of false pre-.
tense can be sustained, it must appear
that the person from whom the pro.
perty was obtained was actually de-
frauded and sustain the law.
For the above apd foregoingreasons