In State v. White, 48 Or. 416, 87 Pac. 137, ant into the "deal," if it was satisfactory to the syllabus in part is:

land. O'Donovan objected to doing so, but the defendant told him that he would incur no liability at all on the note or mortgage, and that all that the holder of the note and mortgage could do would be to take the land. O'Donovan yielded, and the defendant made to him a deed for the 40-acre tract and had it recorded, and O'Donovan executed to the defendant said note and a mortgage on said mountain land for said $4,500. This was all done for the express purpose of placing in the defendant's hands a note and mortgage for $4,500, to be by him transferred to Dr. Denny as a part of the purchase price of the Denny tract, and for no other purpose. It was a sham and fraudulent transaction. O'Donovan did not want said land and the whole transaction was fraudulent and done as a part of the scheme to obtain from Dr. Denny and his wife their signatures to the deed for the 60-acre tract of land. This mortgage was executed on or about December 2, 1912, but falsely dated November 2, 1912. It contains the following false state"This mortgage is part of the purchase price of the above described property." There was no purchase price to be paid for said property, and O'Donovan never paid or promised to pay anything therefor.

ment:

When the exchange of property was made, the mortgage for $4,500, last above referred the mortgage for $4,500, last above referred to, was assigned by the defendant to Dr. Denny as $4,500 of the price to be paid him for

his 60-acre tract of land.

Dr. Denny and wife, when they made the deed for the 60-acre tract of land, left the names of the grantees blank, with the understanding that the defendant and Mr. Smith should write therein the names of such grantees as they should desire, and they wrote therein the names of the defendant and the Trader's Trust Company as grantees. Said deed was made December 2, 1912, and at the time that it was made the defendant assigned to Dr. Denny the said fraudulent mortgage for $4,500, referred to supra, and the note referred to therein, and Mr. Smith assigned to Dr. Denny a mortgage and note for $2,500, and the grantees of said 60-acre tract assumed the payment of the $7,000 mortgage on said premises. The consideration stated in the deed was $15,000.

In order to prevail upon Dr. Denny and his wife to sign said deed of conveyance referred to, the defendant exhibited and delivered to Dr Denny, when said fraudulent representations were made, an assignment of said note and mortgage to Dr. Denny, subscribed by the defendant. Said assignment states that said mortgage bears date of November 2, 1912, and that it was executed by C. O'Donovan to the defendant, to secure the payment of the sum of $4,500, together with the promissory note therein described, and the money due or to grow due thereon. The defendant was named in said assignment as the party of the first part, and Dr. M. J. Denny as party of

the second part. Said assignment contained inter alia the following provision:

"And the party of the first part [the defendant] does hereby covenant to and with the said party of the second part [Dr. Denny] that the said party of the first part is the lawful owner and holder of the said note and mortgage, and that he has a good right to sell, transfer and assign the same as aforesaid, and that there is now due and owing upon said note and mortgage four thousand five hundred ($4,500) dollars, with interest from the 2d day of November, A. D., one thousand nine hundred and twelve."

This assignment was subscribed and sealed by the defendant, attested by two witnesses, and acknowledged before a notary public in proper form. Both the mortgage and the certificate of acknowledgment are dated November 2, 1912; but said instrument was not made until about December 2, 1912. The date was false. While the proposition for the exchange of Dr. Denny's land for mortgages was pending, and when said assignment of mortgage was presented to Dr. Denny for consideration, the defendant, for the purpose of inducing Dr. Denny and his wife to sign the deed for said 60-acre tract, orally and falsely represented to Dr. Denny and his agents that he had recently sold the 40-acre tract of land in Skamania county, Wash., and described in said $4,500 mortgage, for $9,000, and that it was worth that sum; that the person to whom he had so sold said land had paid him $4,500 on the purchase price thereof, and that said mortgage for $4,500, cuted for the remainder of said purchase mentioned in the said assignment, was exeprice of the tract so sold; that said 40-acre tract covered by said mortgage was a beautiful tract of land; and that it had improvements thereon, consisting of a house and a barn and an orchard, and that he had just sold said land.

The evidence shows that the 40-acre tract described in said mortgage is located five miles north of Stevenson, Wash., in the mountains, and that the nearest road is about a mile and a half from it. A pack horse can get through to said land, but a wagon cannot. It once had timber on it, but the timber was destroyed by fire several years before said mortgage was made. There is no house, barn, orchard, or other improvements thereon. During the winter season, snow falls thereon to a depth of from five to six feet. The land is about 2,200 feet above sea level, and it is very rocky, and it is called "scab” land.

The evidence shows that the land is practically valueless, or worth not to exceed $1.25 per acre. The evidence shows that said representations were false and fraudulent, and that the defendant knew them to be false and fraudulent when he made them, and that he made them with the intent to defraud Dr. Denny and his wife and to obtain their signatures to said deed. The evidence tends to show that Dr. Denny and his wife believed said representations to be true, and acted on them and signed said deed.

The evidence tends to show that Dr. Denny | a false token or writing. It is not always and his wife were influenced by said false easy to determine what constitutes "a false representations and by said assignment of token or writing," as that phrase is used mortgage to sign and execute said deed, and in our statute. that said deed was delivered to the defendant and Mr. Smith. We find that the evidence tends strongly to prove the allegations of fraud contained in the indictment.

12 Am. & Eng. Ency. L. (2d Ed.) 809 says: "Equally as at common law, the use of a false token was essential to constitute a cheat of a private nature, under the statute (33 Hen. VIII, c. 1) providing punishment for obtaining property by cheats effected by privy tokens. What was such symbol or token was sometimes difficult to determine, but it was settled that it guished from mere words, as a ring, a key, or a should be something real and visible, as distinwriting, and even a writing would not suffice, unless it was in the name of another, and of such a character as to afford more credit than the mere assertion of the party defrauding. In order to constitute the offense, there must be a false pretense or representation of an existing or past fact."

[4] A token is a mark or sign; a material evidence of a fact. Cheating by "false tokens" implies the use of fabricated or deceitfully contrived material objects to assist the person's own fraud and falsehood in accomplishing the cheat. tionary (2d Ed.) p. 1159.

Black's Law Dic

It will be observed that section 1964, supra, does not require the false pretenses to be evidenced by any writing; but section 1541, supra, contains certain provisions as to the kind of evidence necessary to support an Under section 1541, supra, where the false indictment for that crime. Where the false pretense is expressed orally, and no note or pretense is expressed orally and is accommemorandum thereof is in writing subscribpanied by a false token or writing, it is noted by the defendant or in his handwriting, necessary that there be any note or memorandum thereof in writing, either subscribed by the defendant or in his handwriting. Where, however, the false pretense is expressed orally and is not accompanied by a false token or writing, there must be some note or memorandum thereof in writing ei

ther subscribed by or in the handwriting of

the defendant. This court in State v. White

aker, 64 Or. 302, 129 Pac. 536, construed said

section 1541 thus:

"There are two ways in which the crime defined by section 1954, L. O. L., may be accomplished: By false pretense, or by privy or false token. Section 1541 distinguishes the evidence essential in establishing each: If the false pretenses are expressed orally, they must be accompanied by a false token or writing: if not accompanied by a false token or writing, then the false pretense, or some note or memorandum thereof, must be in writing, signed by or in the handwriting of defendant. The meaning of section 1541, L. O. L., is not rendered obscure or doubtful by the latter clause. That clause cannot be held to refer to a false pretense expressed orally and accompanied by a false token or

writing.'

In People v. Gates, 13 Wend. (N. Y.) 320,

the court says:

"Writing, as used in the statute [concerning false pretenses], must mean some instrument, or at least letter-something in writing, purporting to be the act of another, or certainly of some but the paper presented in this case person; does not answer any such description. It was no writing at all, because it did not purport to be the act of any person. Writing, as used in the statute, cannot mean anything written upon paper, not purporting to be of any force of efficacy; but some instrument in writing, or written paper, purporting to have been signed by some person; and such writing must be false."

If a false pretense is expressed orally, it is sufficient to support an indictment under

it must be accompanied by "a false token or writing." As is stated in the authorities, a false writing may be a false token. This certainly is true under said section. But the writing, to constitute a false token, must be false. This does not mean that the writing must be a forgery.

[5] In his Law Dictionary (2d Ed.) p. 480,

Mr. Black defines "false" thus:

"Untrue; erroneous; deceitful; contrived or calculated to deceive and injure. * * * In law, this word means something more than untrue; it means something designedly untrue and deceitful, and implies an intention to perpetrate some treachery or fraud."

The mortgage made by O'Donovan to the defendant for $4,500 upon the 40-acre tract of land in Skamania county, Wash., was a false writing within the foregoing definition. The defendant knew the land to be practically worthless, and he deeded it to O'Donovan, and had O'Donovan execute to him the note for $4,500 and the mortgage upon said land, to create a pretended security to be assigned to Dr. Denny to pay $4,500 of the purchase

price of the latter's land. It was a sham and a fraud from beginning to end, and said pretended security was practically worthless. Said land was not worth enough to pay the expense of a suit to foreclose said mortgage and sell said land.

During the negotiations leading up to the making of the deed in question, and just before the deed was signed by Dr. Denny and his wife, the defendant executed an assignment of said mortgage to Dr. Denny. It was subscribed by the defendant and by two witnesses and sealed, and it had attached thereto a certificate of a notary public show

ferred testified that he had not paid him anything for said land. The defendant knew said mortgage to be a sham and a fraud, and, when he made said assignment, he did

the execution thereof. That document had price thereof. The person to whom he rebeen executed with all the usual formalities. It was presented and delivered to Dr. Denny by the defendant for the purpose of transferring to him said mortgage and the note described therein. It recites that it was execut-it with the intent to defraud Denny and his ed in consideration of the payment to the defendant by Dr. Denny of the sum of $4,500. It describes the note and mortgage for $4,500 that it purports to assign to Dr. Denny. Near the end of the instrument, it contains the following false provision:

"And the said party of the first part [the defendant] does hereby covenant to and with the said party of the second part [M, J. Denny] that the said party of the first part is the lawful owner and holder of the said note and mortgage, and that he has a good right to sell, transfer and assign the same as aforesaid, and that there is now due and owing upon said note and mortgage four thousand five hundred ($4,500.00) dollars, with interest," etc.

* * *

Black, in his Law Dictionary (2d Ed.) p. 481, defines false pretenses thus: "False representations and statements, made with a fraudulent design to obtain money, goods, A representation of some fact or circumstance, calculated to mislead, which is not true. A pretense is the holding out or offering to others of something false or feigned," etc. [6] The rule is elementary that a false pretense, to constitute a crime, must relate either to past or present facts, and that representations or promises as to things to be done in the future by the party making them are not false pretenses, within the Criminal Code. In re Snyder, 17 Kan. 542; State v. Tull, 42 Mo. App. 324; Allen v. State, 16 Tex. App.

150.

[7] Referring to the said assignment of mortgage, counsel for the appellant says:

wife. We cannot agree with appellant's counsel that said assignment was not false. It was a false token and writing, and it ac companied the making of the false pretenses. The evidence tends to show that it was relied on by Dr. Denny and his agents. They read and considered it before the deed was executed. A person purchasing a $4,500 mortgage would be likely to place some reliance on the assignment.

4. The covenants in the assignment that the defendant is the lawful owner and holder of said note and mortgage, that he has a good right to sell, transfer, and assign the same, and that there is now due and owing to the defendant on said note and mortgage $4,500 are shown by the evidence to be false. The defendant was not the lawful owner of said fraudulent mortgage, under the facts shown by the evidence, and he did not have a good right to convey it to Dr. Denny, and really nothing was due or owing to him upon it. The note and mortgage were vitiated by fraud. The covenants referred to facts then existing and not to things to be done in the future. To make a solemn covenant that certain facts are true is equivalent to representing or -pretending that they are true. We hold that said assignment was a false token or writing, and that it accompanied the false pretenses orally made, and that there was sufficient evidence to require the case to be submitted to the jury and to sup

instructed verdict was properly denied.

"Besides being genuine and not false, the state's evidence shows affirmatively and posi-port the verdict found. The motion for an tively that no reliance was placed on the assignment of the $4,500 mortgage (State's Exhibit A), and therefore the court erred in admitting in evidence said exhibit."

[8] 5. The appellant filed a motion for a new trial, and the trial court overruled it. It is a well-settled rule of practice in this state, in criminal as well as civil cases, that an order of a trial court denying a motion for a new trial is not an appealable order. Hence we cannot review the action of the court below in overruling said motion.

[9] 6. There are some other points mentioned in the brief; but we do not deem it necessary to discuss them at any length. After the jury retired to consider the verdict that should be rendered, they returned into court and asked for instructions as to whether they should take into consideration the civil remedy that Dr. Denny may have against the defendant for the damages done him by the defendant's fraud, etc. The court properly instructed them that they should not.

We cannot agree with counsel for the appellant as to said assignment. While it was not a forgery, we hold that it was false, within the meaning of the statute relating to false pretenses and false tokens or writings. The term "false," in law, signifies, as shown supra, "something designedly untrue and deceitful, and implies an intention to perpetrate some treachery or fraud." The mortgage and note that it purports to assign were executed for the express purpose of being transferred to Dr. Denny for $4,500, and the defendant knew that it had no real value. He represented that the land had been "just sold" by him for $9,000, and that it was worth that, when he knew that it was practically valueless. He represented that there were a house, a barn, and an orchard on the land; but the evidence shows that there The defendant's ability or inability to rewere no improvements whatever on it. He spond in damages for the injury done by the represented that it was a pretty piece of fraud neither exonerated him from convicland; but the evidence shows that it is tion nor mitigated his guilt to any extent. "scab" land and mostly rock. He represent- Those matters had no relevancy to the issue ed that the person to whom he had "just to be determined.

sold" it had paid him $4,500 of the purchase [10] 7. We have read the instructions given

thereupon, without hearing counsel further or examining the record herein, ordered and adjudged that the writ of review herein be and the same is hereby quashed," etc. From this judgment the plaintiffs appeal.

and think that they, as a whole, submitted decide such cases in favor of the city, and the case to the jury as favorably for the defendant as the law relating to the matters in issue would permit, and we do not think that there was any error in rulings upon the evidence that was prejudicial to the defendant. A judgment can be reversed only for error that was prejudicial to the appellant.

Section 1626, L. O. L., governs the action of the court on appeals in criminal actions.

It is as follows:

"After hearing the appeal the court must give judgment, without regard to the decision of questions which were in the discretion of the court below, or to technical errors, defects, or ex; ceptions which do not affect the substantial rights of the parties."

We find no reversible error in the record, and the judgment of the court below is af

firmed.

R. R. Duniway, of Portland, for appellants. L E. Latourette, of Portland (Frank S. Grant, of Portland, on the brief), for respondents.

BURNETT, J. (after stating the facts as above). It is disclosed by the record that the city published notice of its purpose to pass a reassessment ordinance to cover the expenses of the improvement named, and that the plaintiffs filed their objections to the proposed action setting forth many errors of law and others based on questions of fact. At

MCBRIDE, a J., and BURNETT and the time and place appointed for hearing, the MOORE, JJ., concur.

(73 Or. 299)

COOK et al. v. CITY OF PORTLAND et al. (Supreme Court of Oregon. Oct. 20, 1914.) MUNICIPAL CORPORATIONS (8 514*)-PUBLIC IMPROVEMENTS - ASSESSMENTS - HEARING. Where objections were filed to a reassessment ordinance, for errors of law and raising questions of fact, and the council, without any determination of the questions involved, on the next day referred the proposed ordinance and objections to a committee which, after delay, advised the overruling of all the objections, which was done without further hearing, and without making any findings respecting the facts, it was error.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1207-1215; Dec. Dig. § 514.*]

McBride, C. J., dissenting.

Department 2. Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Writ of review by George H. Cook and others to determine the regularity of the proceedings of the Council of the City of Portland. From a judgment dismissing the writ, plaintiffs appeal. Reversed and remanded with instructions.

council, without any determination at all of the questions involved, adjourned until the next day, when the proposed ordinance and the objections were referred to a committee. This committee, after considerable delay, reported in general terms advising the overruling of all the objections. The council, without making any findings respecting the facts involved, ignored the objections and passed the ordinance. No notice was given of any proposed action of the council after the first one already mentioned.

Much space in the plaintiffs' brief is devoted to the discussion of the action of the circuit court in declining to hear argument on the question and summarily dismissing the writ. In the view we take of this case it is not necessary to consider this question. In refusing to make specific findings on the questions of fact involved in the objections and in disposing of all the objections both of law and of fact by a mere omnibus denial of them, the council was in error as decided by this court in Hochfeld v. City of Portland, 142 Pac. 824. The principles involved in this case and in that are identical, and our decision there is controlling here. The substance of that precedent is that in such cases the taxpayer who must meet the expenses of public improvements is entitled to know for what This is a writ of review to determine the he is taxed and to have nothing charged regularity of the proceedings of the council against him except what has been actually of the city of Portland in attempting to make expended. It is the duty of the council to a reassessment for the improvement of Karl defend the citizen against willful violations street from the east line of Milwaukie street of contracts and the omission of work agreed to the west line of East Twentieth street in to be done in making public improvements. that city; a former assessment having been It is for the protection of the taxpayer that declared void by the judgment of the circuit the provisions of law involved have been court of Multnomah county in a proceeding enacted. In short, he is entitled to a record similar to this. The plaintiffs complain here, showing in detail for what he is taxed and among other things, that the circuit court the items going to make up the burden imerred "in refusing to examine the record and posed. This is a matter which the council in announcing that the proceedings of the cannot delegate for final action to a mere city would be presumed regular, that it was committee, nor dismiss with a wave of the useless to rehash these reassessment proceed-hand. It is required to make and place its ings over and over, and that the court would findings on record for the information of