ed the check to the credit of the plaintiff when the check was received, and if they had done their duty in this respect the plaintiff would have been merely a general creditor of the bank and entitled to no preference right. The mere fact that the bank officers did not do their duty gave him no greater rights than he would have had, if they had performed their duty fully. We are of the opinion, therefore, that the trial court erred in establishing this claim as a preference claim over general creditors.

The second cause of action, upon which the plaintiff has appealed, was one where one Hunter, who was at that time an officer of the bank, executed certain bonds, and secured them by mortgage upon real estate. Four of these bonds were purchased by the plaintiff. The bonds have The bonds have not been paid. Plaintiff is seeking to hold the bank therefor. It is claimed that the officers of the bank represented to the plaintiff at the time they purchased these bonds that they were A-1, secured by a mortgage double the value of the bonds, without any other liens thereon. The evidence of the plaintiff upon this question was to the effect that he asked the manager of the

bank, at the time he bought the bonds, as to the value thereof and as to the security, and was informed that the bonds and security were A-1. There was evidence to the effect that at that time the security was in fact good. There was evidence, also, that there were improvement liens against the property, which is not now worth the amount of the bonds. The trial court, after hearing the evidence on this question, evidently concluded that there was no fraudulent representation; that the expressions made by the bank officers at the time plaintiff purchased these bonds were in effect expressions of opinion merely. The bank -liability for did not indorse the representations bonds. They were simply agents for the purpose of collecting the interest and principal and paying it to the bondholders.

of officer.

We are satisfied from the record here that the trial court properly found upon this cause of action, and the judgment of the trial court thereupon is affirmed.

The defendant, being successful in this court, is entitled to costs.

Holcomb, Ch. J., and Fullerton, Tolman, and Bridges, JJ., concur.

The right to a preference in the assets of an insolvent bank arises in many situations and raises many questions. No case has been found in which a preference was sought under the precise facts existing in the reported case (ZIMMERLI V. NORTHERN BANK & T. Co. ante, 192). The two following cases have, however, some interest in this connection: In Sunderlin v. Mecosta County Sav. Bank (1898) 116 Mich. 281, 74 N. W. 478, there was held to be no trust fund created to the amount of a check which the insolvent bank had charged upon its books against the drawer, and for which it had sent to the remitting

bank a draft upon its correspondent, which was subsequently dishonored. "There is nothing," says the court, "to show that any tangible thing was received by the bank upon these checks, and consequently there is no such fund in the hands of the receiver." The drawer of a draft which is paid by the drawee by a check on the bank to which the drawer sends it, and which remits to the drawer by means of a New York draft, which is dishonored upon presentation, is held not entitled to a preference in the funds of the insolvent bank in AnheuserBusch Brewing Asso. v. Clayton (1893)

28 L.R.A. (N.S.) 162, 101 Pac. 115; Pilgrim v. State, 3 Okla. Crim. Rep. 49, 104 Pac. 383; State v. McDonald, 10 Okla. Crim. Rep. 413, 137 Pac. 362.

Messrs. S. P. Freeling, Attorney General, and R. McMillan, Assistant Attorney General, for the State.

Armstrong, J., delivered the opinof the court:

The plaintiff in error, B. A. Helsey, hereinafter called defendant, was by information charged with the offense of obtaining money from Lloyd Henry by false pretenses, convicted, and sentenced to imprisonment in the state penitentiary at McAlester for a term of three years. To reverse the judgment rendered, he prosecutes this appeal.

The material uncontradicted evidence is as follows: That the defendant went to the home of Lloyd Henry, which is situated 4 miles from Miami, Ottawa county, stated to him that he (defendant) was representing the Menke Grocery Company of Kansas City, exhibited to him samples of groceries, stated the prices of same, and induced the said Henry to give him, the defendant, a check for groceries to be shipped to the said Henry by the said company, and which he promised would reach the said Henry in five or six days, for which said groceries said Henry gave the defendant a check on the bank of Miami for $4.95, which defendant cashed, and applied the money so received to hist own use, and did not send the order for the said groceries to said company to be filled as he stated he would. That the said Henry bought the said groceries "because the prices were reasonable, and he believed the company responsible." There was also undenied evidence that the defendant, about the same time, had transactions with several other persons identical with the transaction had with said Henry, and that in each instance he appropriated to his own use the cash or checks so received from said several transactions. That defendant, prior to having said transactions with said Henry, went to the place of

business of said Menke Grocery Company, and there saw officials of said company, stated to them that he had heretofore been a salesman and desired to sell groceries for said. company, and in consequence was furnished by said company blank orders on said company for goods, samples of the goods he was to sell, the prices he was to sell them for, and furnished a book entitled "Menke's Salesmen's Companion," which in great detail instructed how a salesman was to conduct business in taking orders, described the goods to be sold, and stated therein that the articles in "Menke's Salesmen's Companion are for the salesman who sells from our house, and should any party or parties, firm or corporation, be found infringing such or copying any of these articles, they will be prosecuted," and promised defendant to fill all regular orders that he might send to them, Menke Grocery Company. It was also testified by the secretary of the company that the company would have filled any orders sent in by the defendant that were regular, but that defendant was not the agent of and the company not responsible for his acts. It was also shown by the evidence that, after the defendant had the transaction herein stated with the said Henry, he was arrested in Texas, and, while in the police station at Ft. Worth, stated that he was guilty of "jipping" the farmers out of their money, and he was going to plead guilty.

The defendant demurred to the evidence upon the ground that it was insufficient to sustain conviction for obtaining money by false pretenses. The court overruled the demurrer, and the defendant excepted. Timely motion for a new trial was made by the defendant, which was overruled, and exceptions saved. The defendant, in his brief, urges only one error: "That the evidence is insufficient to sustain the conviction of the defendant, and that the court committed reversible error in refusing to instruct the jury to acquit the defendant."

It is earnestly insisted on the part of the state that the evidence shows that the defendant was not authorized to represent the Menke Grocery Company in making said transaction with Henry, was not its agent, and that, when defendant stated to Henry that he was representing the said company, he falsely represented as to an existing fact upon which Henry relied. With this contention we cannot agree. The evidence shows that the defendant had authority to represent said company as a special agent, to make said deal with Henry in the manner in which he did. The evidence shows that the company had authorized the said defendant to take orders, and had furnished him with blank order forms, samples of goods he was to sell, the prices thereof, and directed him to follow the instructions contained in Menke's Salesmen's Companion, a copy of which was delivered to the defendant at the time.

It is true that the secretary of the company testified that the defendant was not an agent of said company, and the company was not responsible for his acts, but this testimony does not in any way tend to show that the defendant was not authorized to represent said company in making the transaction he did with Henry.

That the defendant, in making the transaction with Henry hereinbefore set out, was guilty of practising a confidence game upon Henry in obtaining said check for $4.95, is certainly true; but, after a most careful consideration of all the evidence germane to the issue involved, we are unable to see that, in perpetrating said fraud upon Henry, he did so by falsely representing as to any existing fact or past event.

False pretenses elements of

offense.

It has been repeatedly held by this court that there must be a false representation as to an existing fact or past event proven in order to sustain a conviction for obtaining money under false pretenses. Taylor v. Territory, 2 Okla. Crim. Rep. 1, 99 Pac. 628; Jones v. State, 9 Okla. Crim. Rep. 621, 132 Pac. 914; 2 Whart. Crim. Law, 11th ed. §§ 1397-1437.

The doctrine that the misrepresentation must be of a past event or fact having present existence, and not a misrepresentation of something to take place in the future, finds support in the following authorities: State v. De Lay, 93 Mo. 98, 5 S. W. 607; 2 Bishop, Crim. Law, §, and authorities there cited; Hurst v. State, 39 Tex. Crim. Rep. 196, 45 S. W. 573; State v. Tanner, 22 N. M. 493, L.R.A.1917E, 849, 164 Pac. 821; People v. Cerrato, 99 Misc. 256, 165 N. Y. Supp. 694; Re Snyder, 17 Kan. 542, 2 Am. Crim. Rep. 228.

-obtaining money on

delivered.

We are of the opinion that the evidence germane to the issue involved in this appeal is entirely insufficient to show beyond a reasonable doubt that the defendant was guilty of the offense of which he was convicted, and orders not to be hence the court committed reversible error in refusing to advise the jury to acquit the defendant, because, if the evidence proves the defendant guilty of an offense, it is one materially different from that charged and of which he was convicted.

The judgment of the trial court is reversed, and the case remanded.

Doyle, P. J., and Matson, J., con

cur.

As to false representations in business transaction as within statute relating to "confidence game," see

annotation following People v. Santow, 9 A.L.R. 1524.

The holding in the reported case

(HELSEY V. STATE, ante, 197) to the effect that one cannot be convicted for obtaining money by false pretenses, by obtaining money on orders for goods which he does not intend to deliver, is an application of the general rule in relation to false pretenses, that a conviction cannot be based on a misrepresentation of something to take place in the future. And in State v. Haines (1885) 23 S. C. 170, where defendant obtained advances from a factor upon representations that he was then planting cotton, and that when the crop was harvested he would ship the same to the factor, it was held that the false promise to deliver goods in the future, alone, involved no criminal consequences, and that there could be no conviction of false pretenses unless there was a false representation as to an existing fact, such as whether or not he was, as a matter of fact, planting cotton at the time. See this case as quoted, infra. And the conclusion reached in the reported case (HELSEY v. STATE) to the effect that one cannot be convicted for obtaining money by false pretenses, by obtaining money on orders for goods not to be delivered, finds support in the somewhat analogous case of Com. v. Tidwell (1915) 162 Ky. 114, 172 S. W. 102, wherein it was held that an agent who represented that if the prosecuting witness would purchase a picture and frame from him, his principal would deliver a sewing machine to the purchaser, was not guilty of false pretenses, there being no allegations of misrepresentations as to existing facts, but merely the false promise to perform an act in the future. The court said: "It is not alleged in the indictment that the representations as to the existing facts were false; that is, that there were any false representations made by appellee as to the character or value of the picture or frame, or as to appellee's ownership thereof, or his right to sell same to Mrs. Champion; nor is it alleged in the indictment that Mrs. Champion was not a person of ordinary intelligence and prudence.

The indictment, it is true, alleges that the statement of appellee that Mrs. Champion would receive the

sewing machine was a false representation, and that the machine was never, in fact, delivered to her, but this false representation was solely as to an event to happen at an uncertain time in the future, and was therefore a mere promise of future performance, unconnected with a false statement as to a past or existing fact; for, as already said, there was no false statement or representation made by him as to his right to sell her the picture and frame, or as to its value. We are of opinion, therefore, that the facts alleged in the indictment do not bring the acts of appellee within the statute denouncing false pretenses." But compare Rex v. Provost (1918) 29 Can. Crim. Cas. 247, wherein the owner of a motor car told defendant that he would sell it for a certain price, and the defendant, representing that he had a right to sell the car as his own, although it was still in the possession of the owner, obtained money in reliance upon the representation that the accused could deliver the automobile to the prosecutor, and in which the court applied the rule that if the delivery of the article obtained was the object and aim of the false pretense, there is a sufficient direct connection between the pretense and the obtaining, even though what was immediately obtained by the false pretense was not the delivery, but merely the contract, and held that the defendant was properly convicted of obtaining money by false pretenses under Quebec Crim. Code, § 405. The court said that the prosecutor gave his money in the belief that the accused could deliver him the automobile, otherwise he would neither have signed the contract nor given his money, and, consequently, that the accused got his money "under false pretenses by means of a trick."

Without departing from the general rule that to convict there must be a false representation as to an existing fact or past event, and that a mere representation of something to take place in the future is not sufficient, it has been held under some facts that a conviction may be had, although the promise on its face in a sense relates