¶1 (dissenting). I find ignorance on the
¶2 part of defendant, but no intent to defraud. I think the conviction should be reversed.
¶3*358 Defendant owed the bank $7,000 and other parties $3,000. The bank pressed for security. He owned an undivided half interest in property; his brother owned the other half interest and their father held a writing giving him possession for life. Defendant would not give the bank preference, but was willing to mortgage his half interest if the bank would lend the $3,000 to pay the other creditors. The bank lent that sum in two items and took defendant’s notes with a guaranty of payment by each creditor. Later the bank foreclosed the mortgage and bid the property in at the sum of $7,500 and later filed a bill for partition alleging title and that defendant’s father was a mere trespasser. The record does not disclose what, if anything, was done in that case. Then the bank charged defendant with the crime of false pretenses in obtaining the $3,000 because he represented that his half interest in the property was unincumbered, when in truth it was incumbered by the life lease to his father.
¶4 At the time the mortgage was executed defendant informed the bank that his father occupied the property, but said nothing about his right to do so for life. One not skilled in law might honestly believe that the right of the father to occupy the property for life was not an incumbrance. Defendant, however, did not disclose the fact, but it is quite probable that had he done so it would not have led the bank to forego taking the mortgage for the old debt and to advance the $3,000 on the guaranty of two other persons to pay if defendant failed, and especially considering the fact that the life of the father was pretty well run, for he was 87 years of age.