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of the act passed March 3, 1899 (chapter 429, 30 Stat. 1260), entitled, “An act to define and punish crimes in the district of Alaska and to provide a code of criminal procedure for said district,” Congress has enacted that obtaining money or property from another by any false pretense shall constitute a crime, subjecting the offender to punishment by imprisonment in the penitentiary not less than one nor more than five years. So, also, under, section 842 of the act of March 3, 1901, entitled "An act to establish a code of law for the District of Columbia," obtaining from any person anything of value by means of false pretenses is made a crime, and, where the value of the property so secured is $35 or upwards, subjects him to imprisonment not less than one year nor more than three years; or, if less than that sum, to a fine not more than $200, or imprisonment for not more than six months, or both. Chapter 854, 31 Stat. 1326.
In addition to these statutes, section 2 of the act of July 7, 1898 (chapter 576, 30 Stat. 717 [U. S. Comp. St. 1901, p. 3652]), which is, in substance, a re-enactment of section 5391, Rev. St., provides:
“That when any offense is committed in any place, jurisdiction over which has been retained by the United States or ceded to it by a state, or which has been purchased with the consent of a state for the erection of a fort, magazine, arsenal, dockyard or other needful building or structure, the punishment for which offense is not provided for by any law of the United States, the person committing such offense shall, upon conviction in a circuit or district court of the United States for the district in which the offense was committed, be liable to and receive the same punishment as the laws of the state in which such place is situated now provide for the like offense when committed within the jurisdiction of such state, and the said courts are hereby vested with jurisdiction for such purposes; and no subsequent repeal of any such state law shall affect any such prosecution.”
Under this statute, any act committed in any place under the jurisdiction of the United States, if made an offense by the laws of the state in which such place is situate, when committed elsewhere in the state, is an offense agianst the United States, and punishable as in the state law provided. Sharon v. Hill (C. C.) 24 Fed. 731; U. S. v. Wright, Fed. Cas. No. 16,774; U. S. v. Pridgeon, 153 U. S. 48–53, 14 Sup. Ct. 746, 38 L. Ed. 631.
At the date of the passage of the act of July 7, 1898, just quoted, the act of obtaining money or goods by false pretenses was made a crime by the laws of most of the states of the Union, and is, therefore, under this statute, also made a crime against the United States, in all places over which the United States exercises exclusive legislative jurisdiction, within the several states, having laws providing for the punishment of such an act as a crime.
In view of the legislation of Congress to which we have referred (the acts relating to Alaska and the District of Columbia, and the statute of July 7, 1898), our conclusion is that obtaining money or goods under false pretenses is an offense against the laws of the United States, within the meaning of the statute conferring jurisdiction upon the United States Court for China, and that an American citizen guilty of the commission of such an act in China is subject to trial and punishment therefor by that court.
2. But we are of opinion that the information upon which defend
ant was convicted does not state facts sufficient to constitute the offense of obtaining money under false pretenses. The information, so far as is necessary to be here set out, charges that the defendant, "on or about the 31st day of October, 1906, in Shanghai, China, unlawfully and knowingly did falsely pretend to Woo Ah Sung, Zung Yu Young, Ng Sih Yiek, and Sz Yung that the municipal authorities of the international settlement of Shanghai, China, would allow and permit in the building known as Nos. 4 and 5 Mohawk Road, Shanghai, China,
Chinese gambling games to be played during the autumn race meeting of 1906, in Shanghai, China, which pretenses were false, as the said C. A. Biddle then and there well knew, and by said false pretenses the said C. A. Biddle, with intent to defraud, unlawfully did obtain from the said Woo Ah Sung, Zung Yu Dong, Ng Sih Yiek, and Sz Yung the sum of Tls. 3,000.00 Shanghai Sycee as rent for the said premises to be used for the said gambling games."
It will be noticed that the alleged false pretenses relate wholly to some future action of the municipal authorities of the international settlement of Shanghai in permitting Chinese gambling to be played during the autumn race meeting of 1906, in Shanghai. There is no averment that defendant made any false representation as to any existing fact, or past fact, and without such an averment the charge of obtaining money under false pretenses cannot be sustained. In order to constitute the crime of obtaining money under false pretenses, the alleged false representation must be of some past or existing fact. Says Mr. Bishop (section 401, vol. 2), in his work on Criminal Law (3d Ed.):
"Both in the nature of things, and in actual adjudication, the doctrine is that no representation of a future event, whether in the form of a promise or not, can be a pretense, within the statute, for the pretense must relate either to the past or the present.”
This statement is well sustained by decided cases. People v. Miller, 169 N. Y. 339, 62 N. E. 418, 88 Am. St. Rep. 546; Cook v. State, 71 Neb. 243, 98 N. W. 810. Our attention has not been called to any case which holds to the contrary. People v. Wasservogle, 77 Cal. 173, 19 Pac. 270, which is cited by the learned attorney for the United States, is in harmony with the rule as we have stated it. In that case the defendant obtained money upon a draft drawn by him; he falsely stating at the time that he had credit with the firm upon which it was drawn, for the amount of the draft, and that the draft would be honored. In that case it will be perceived there was the false representation of an existing fact, to wit, that the defendant had an existing credit to the amount of the draft with the firm upon which the draft was drawn, and the court, in its decision upholding the conviction in that case, said:
"It is true that, to come within the statute, a representation must be of some fact, past or present; but the statement of the defendant that he had credit with the firm named for the amount of the draft, and that the firm would honor the draft, when he knew that he had no credit with the firm, and that the draft would not be honored or paid, was sufficient."
Passing from the information to a consideration of the evidence: It was wholly insufficient to justify the conviction of defendant. It appears that on May 29, 1906, the defendant in his own name, but in fact acting for the Hotel Metropole Company, Limited, entered into a contract with the firm composed of the Chinese named in the information, whereby the defendant "let during the four days of the autumn race meeting of 1906 the whole of the second floor and verandah of the building Nos. 4 and 5 Mohawk Road, for the purpose of running Chinese tables for the sum of taels six thousand—Tls. 6,000— fifteen hundred taels of which to be paid on the signing of the contract by the said Yik Che as bargain money, the balance to be paid on or before the first day of November, 1906. This contract to be null and void should the municipal authorities prohibit the running of the said building as a Chinese grand stand during said race meeting and the above mentioned fifteen hundred taels bargain money be returned to the said Yik Che."
It is very clearly shown by the evidence that, when the payments were made under this contract, the parties knew that gambling was not then permitted in Shanghai, and would not be during the approaching autumn race meeting of 1906, unless the municipal authorities should in some manner remove the prohibition. There was also some evidence tending to show that the council had refused, before the making of the above lease, to give its consent to the suspension of the ordinance against gambling in Shanghai, and that this fact was known to the defendant and not communicated by him to the lessees; and that he and others were endeavoring to get the council to recede from its position against gambling, during the time the several payments were made under this lease; but there was no evidence that defendant ever made any express or implied representation that the ordinance against gambling had been repealed or suspended. There was no false representation of any existing fact.
The judgment is reversed, with directions to discharge the defendant.
(156 Fed. 765.)
PENNSYLVANIA R. CO. v. INTERNATIONAL COAL MINING CO.
(Circuit Court of Appeals, Third Circuit. November 13, 1907.)
APPEAL AND ERROR-REVIEWABLE OPDERS-REQUIRING PRODUCTION OF Doci"
An order made by a Circuit Court under Rev. St. $ 724 (U. S. Comp. St. 1901, p. 583), requiring a party to an action at law to produce books or writings at the trial, is an interlocutory and not a final order, and is not reviewable on a writ of error prior to final judgment in the cause.
[Ed. Note.--Orders, decrees, and judgments reviewable. See note to Salmon v. Mills, 13 C. C. A. 374.]
In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.
l'or opinion below, see 152 Fed. 557. See, also, 152 Fed. 554.
Francis I. Gowen, for plaintiff in error,
GRAY, Circuit Judge. The International Coal Mining Company, the defendant in error, hereinafter called the plaintiff, brought its action in the court below against the Pennsylvania Railroad Company, the plaintiff in error, hereinafter called the defendant, under the interstate commerce act, to recover damages against the defendant, for its alleged violation of certain provisions of that act, by discriminating against the plaintiff in the allowance of freight rates upon coal.
To the statement of claim filed by plaintiff, defendant pleaded the general issue of "not guilty," the statute of limitations, and a special plea, which set up a judicial sale under a special fi. fa., issued in execution of a judgment rendered by a court of common pleas of the state of Pennsylvania, against the said plaintiff, the defendant in said judgment, it being alleged that, by virtue of said sale, the right of action under the interstate commerce act, as alleged in the case at bar, was sold, and plaintiff's title thereto divested, and that that fact was a bar to the further prosecution by the plaintiff of its suit. To this special plea, the plaintiff filed several replications, to which the defendant demurred. These demurrers were overruled, and, after an intervening continuance of the cause, and at that stage of the suit, upon the petition of plaintiff's attorney, the following order was made by the court below:
“And now, January 30, 1907, on the filing of the affidavit of J. Chester Wilson, secretary of the plaintiff and International Coal Mining Company, and on motion of James W. M. Newlin, attorney for the plaintiff, and for Edward D. McLaughlin, Esq., trustee in bankruptcy for plaintiff as an intervener, the court grants a rule on the defendant to show cause why it should not be required to produce on the trial of this cause the papers and writings specified in said affidavit or to satisfy the court why it is not in its power to do so, returnable February 13, 1907, at 10 a. m."
On the return day of the rule, the defendant made answer, suggesting, first, that the plaintiff was not entitled to the orders sought by it, because of the facts averred and set forth in the special plea filed by the defendant, and, second, that no warrant existed under the statutes of the United States for the making of any such order as was sought by the plaintiff in an action of the character of the present one, being an action to recover damages in the nature of penalties. On March 25, 1907, the court below filed an opinion, in which the objections urged in the defendant's answer were overruled, and, asserting the right of the court to make the order, as asked for by the plaintiff, it was said:
“The plaintiff in this case is entitled to the production of such books and papers as are relevant and pertinent to the issues involved; but the court will not make the rule absolute, as the question of the relevancy of whatever books and papers are called for must be passed upon at the trial. It is ordered, therefore, that the defendant be required to produce the books and papers specitied in the petition, at the trial of the cause, unless it shows cause at the trial why the same should not be produced.”
On April 3, 1907, the court below filed the following opinion and order:
“On March 25, 1907, an order was made on the defendant in this case, to produce books and papers at the trial of the case. A petition had been presented, under section 724 of Revised Statutes (U. S. Comp. St. 1901, p. 583], by the plaintiff for the production of books and papers. The defendant made answer, with other matters, that the action being one for the recovery of damages, in the nature of a penalty under the interstate commerce act, the motion should be denied. The order to produce was not made absolute, but the question of requiring the production was left open for settlement at the trial. In this, I think the order was not in proper form. It was the intention of the court to require the production of the books, for the reason that the action is not for a penalty in a sense to exempt the defendant from the production of books in an action of this kind, and even if it be regarded as a suit for the recovery of damages as a penalty, or in the nature of a penalty, the defendant, being a corporation, is not entitled to the privilege of refusing to produce its books and papers in a suit of this kind. Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, 50 L. Ed. 652; Nelson v. U. S., 201 U. S. 92, 26 Sup. Ct. 358, 50 L. Ed. 673.
“And now, April 2, 1907, on motion of James W. M. Newlin, for the plaintiff, and the answer, filed by the defendant to the rule returnable February 13, 1907, on the defendant to show cause why it should not produce upon the trial the documentary evidence set forth in the affidavit of J. Chester Wilson, the secretary of the plaintiff, upon which the rule to show cause was granted, having been determined by the court to be insufficient, it is ordered that the defendant shall produce the said documentary evidence at the trial of the cause, and the rule to show cause is made absolute."
Thereupon, April 4, 1907, the defendant filed his petition for a writ of error, which being allowed by the court below, the following assignments of error were duly filed :
"First. The Circuit Court erred in entering the order of March 25th, requiring the plaintiff in error to produce at the trial of the cause the books and papers referred to in said order.
"Second. The Circuit Court erred in entering the order of April 3d, requiring the plaintiff in error to produce at the trial of the cause the books and papers referred to in said order."
The return to the writ of error so sued out, brings before this court the record of the case, as far as it had proceeded in the court below, terminating with the order above referred to, of April 3, 1907, “that the defendant shall produce the said documentary evidence at the trial of the cause.”
Prior to the argument on the assignments of error, the defendant in error, by its counsel, moved this court to dismiss the writ of error for want of jurisdiction, on the ground that the orders complained of in said assignments of error are interlocutory orders of the court below, and not final decisions of said court, within the meaning of section 6 of the judiciary act of March 3, 1891 (26 Stat. 1110, c. 566 [U. S. Comp. St. 1901, p. 339]). The plaintiff in error, however, contends that the said orders, one or both, are final, within the ratio decidendi of the judgment rendered by this court in the recent case of Cassatt et al. v. Mitchell Coal & Coke Co., 150 Fed. 32, 81 C. C. A. 80. As both orders cannot be treated as final, we may consider the order of April 3, 1907, modifying that of March 25, 1907, as the order complained of in the assignments of error. This was an order, absolute on its face, to produce the books and papers set