Semler v. State

Decided April 15, 1905

Ohio Circuit Courts · decided 1905-04-15

BILLS AND NOTES — CRIMINAL LAW — VARIANCE. 1. Teems “Check” and “Draft” Compared. A draft upon a hank, payable on demand, is indistinguishable from a check, and either, considered alone, imports a representation that the drawer has funds to meet it. 2. False Pretenses, Variance between Crime Charged and Crime Proved. Where an indictment for obtaining money by false pretenses charges a representation that the drawer of a draft has funds with the drawee wherewith to meet it, upon which the bank to which it was presented for payment relied, and the evidence discloses that a draft was- drawn and presented and was cashed on the assurance of a statement by tha drawer that he had “arranged for” it, which statement was, in fact, untrue, this is a variance between the offense charged and the. offense proved, and a judgment rendered on a conviction under such an indictment and proof is contrary to law.

Decided 1905-04-15

WINCH, J.,

¶1dissenting.

¶2. I dissent in this case for the reason that J believe that the pretense really made by the accused when he said he had arranged for the drafts was a matter to be determined by the jury from the circumstances connected with the uttering of the words, the conduct of the accused, his past relations with the bank, and all the pertinent facts of the ease. The jury having found that he in fact meant he had money on deposit at Sharon it would seem that it is not for us to say that he might have meant something else.

¶3It is to-be regretted that the prosecutor, having asked a competent witness the meaning among bankers of the words “arranged for” when used as in this case, subsequently withdrew the question and it remained unanswered. Had this question been answered there would have been no trouble or uncertainty in arriving at a conclusion one way or the other in this case*