[now both abolished] cognovit actionem, or judgment, or any deed to be inrolled, every such offender shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years nor less than two years. (1) The Irish statute similar to this, is the 7 Wm. 4, c. 18, the *punishment [*463 ] therein enacted being modified by the 2 and 3 Wm. 4, c. 123, and the 1 Vict. c. 84, s. 2. False personation of soldiers and seamen.] The false personation of soldiers and seamen was made felony by several statutes, the provisions of which are now re-enacted in the 5 Geo. 4, c. 107. By the fifth section of which statute, reciting that, whereas it is expedient that the crime of personating and falsely assuming the name and character of any person entitled to prize money or pension, for the purpose of fraudulently receiving the same, shall no longer be punished with death, it is enacted, that, from and after the passing of that act, "whosoever shall willingly and knowingly personate or falsely assume the name, or character of any officer, soldier, seaman, marine or other person entitled, or supposed to be entitled to any wages, pay, pension, prize money, or other allowance of money for service done in his Majesty's army or navy, or shall personate or falsely assume the name or character of the executor or administrator, wife, relation, or creditor of any such officer or soldier, seaman, marine, or other person, in order fraudulently to receive any wages, pay, pension, prize money, or other allowances of money due, or supposed to be due, for or on account of the services of any such officer or soldier, seaman or marine, or other person, every such person, being thereof convicted, shall be liable at the discretion of the court, to be transported beyond seas for life, or for any term of years not less than seven, or to be imprisoned only, or imprisoned and kept to hard labour in the common gaol or house of correction, for any term not exceeding seven years." (See also the 10 Geo. 4, c. 26, (U. K.) the 11 Geo. 4 and 1 Wm. 4, c. 20, s. 84, (U. K.) and the 2 Wm. 4, c. 53, s. 49.) The statute 5 Geo. 4, c. 107, as well as the former statutes, makes use of the words "some officer, &c., entitled, or supposed to be entitled," &c. Upon a prosecution, therefore, for such false personation, there must be some evidence to show that there was some person of the name and character assumed, who was either entitled, or might prima facie, at least, be supposed to be entitled, to the wages attempted to be acquired. Brown's case, 2 East, P. C. 1007. Where the prisoner was indicted for personating and falsely assuming the character of Peter McCann, a seamen on board the Tremendous, and it appeared in evidence that there had been a seaman of the name of M'Carn on board the vessel, but no one of the name of M'Cann; the prisoner being convicted, the judges held the conviction wrong. They were of opinion that "personating" must apply to some person who had belonged to the ship, and that the indictment must charge the personating of some such person. Tannet's case, Russ. & Ry. 351." It has been held that the offence is the same, though the seaman personated was dead at the time of the offence committed. Martin's case, Russ. & Ry. 324;b Cramp's case, Id. 327.° Under the 57 Geo. 3, c. 127, it has been held, that all persons present aiding and abetting a person in personating a seaman, are principals in the offence. Pott's case, Russ. & Ry. 353. (1) See Renoard v. Noble, 2 Johns. Cas. 293. 1 Eng. C. C. 851. d Id. 353. Statutory provision What shall amount to a false pretence Not necessary that words should be used Goods obtained upon an instrument void in law Proof of the false pretences Proof of the falsity of the pretence Proof of the intent to cheat or defraud Proof of the obtaining some chattel, money, or valuable security Proof of the ownership of the property Proof of all being principals Cheating at play punishable as a false pretence Defendant not to be acquitted, where the offence appears to be larceny 464 465 470 471 472 473 474 475 476 476 477 477 477 Statutory provision.] By the 7 and 8 Geo. 4, c. 29, s. 53, reciting, that a failure of justice frequently arises from the subtle distinction between larceny and fraud, for remedy thereof it is enacted, "that if any person shall, by any false pretence, obtain from any other person any chattel, money, or valuable security, with intent to cheat or defraud any person of the same, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to suffer such other punishment, by fine or imprisoment, or by both, as the court shall award. Provided always, that if, upon the trial of any person indicted for such misdemeanor, it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor, and no such indictment shall be removable by certiorari; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts." The forty-sixth section of the Irish statute, the 9 Geo. 4, c. 55, is the same as the above enactment. As many of the cases hereafter cited, were determined upon the repealed statute 30 Geo. 2, c. 24, it will be useful to give the words of that act, which, after reciting that evil-disposed persons had, by various subtle stratagems, &c., fraudulently obtained various sums of money, goods, &c., to the great injury of industrious families, and to the manifest injury of trade and credit, enacted, that, all persons who knowingly and designedly, by false pretence or pretences, should obtain from any person or persons money, goods, wares, or merchandises, [*465] *with intent to cheat or defraud any person or persons of the same, should be deemed offenders against law and the public peace, and should be punished, &c.(1) The ingredients of the offence are, the obtaining money, &c., by false pretences, and with an intent to defraud. Barely asking another for a sum of money is not sufficient, and the intent is necessary to constitute the crime. If the intent be made out, and the false pretence used to effect it, it brings the case within the statute. Per Buller, J., Young's case, 3 T. R. 98. In Joseph Ady's case, 7 C. & P. 140, where, for the defence, an endeavour was made to show that the prosecutor and his friend went to the defendant, well knowing who he was, for the purpose of making evidence to support a case against him; Patteson, J., is reported to have said, "if the defendant did obtain the money by false pretences, and knew them to be false at the time, it does not signify whether they intended to entrap him or not." It did not appear in the above case, that the prosecutor had gone with any such intention; and he swore that he was induced to part with his money through the representations of the defendant, which he stated he believed. As in order to support the charge it must be shown, that the prosecutor parted with his property by reason of some false pretence used by the prisoner, there seems a difficulty in saying, where a person does not believe the pretence alleged, but parts with his property in order to establish a case against the defendant, that the offence is committed. Where goods are obtained under a false representation, but that representation is in writing, and amounts to a warrant or order for the delivery of goods within the stat. 1 Wm. 4, c. 66, s. 10, it is a forgery, and the offender must be indicted for it as such, and cannot be convicted of obtaining the goods under false pretences. Thus where, upon an indictment for obtaining goods by false pretences, it appeared that the prisoner had procured them under the following forged order : "Mr. B.-Please to let the bearer have, for J. R., four yards of Irish linen. J. R." Taunton, J., directed the prisoner to be acquitted, saying that the offence was a felony, and not a misdemeanor. Evans's case, 5 C. & P. 553. Sed quære as to this being a forgery. See Anderson's case, post, p. 472, and post, tit. Forgery. The cases illustrating the distinction between false pretences and larceny, will be found under the latter head. What shall amount to a false pretence.] "The term 'false pretences,' says Mr. East (2 P. C. 828,) is of great latitude, and was used, as Ashurst, J., remarked, in Young's case, (supra,) to protect the weaker part of mankind, because all were not equally prudent; it seems difficult, therefore, to restrain the interpretation of it to such false pretences only, against which ordinary prudence cannot be supposed sufficient to guard.(1) But still it may be a question, whether the statute extends to every false pretence, either absurd or irrational on the face of it, or such as the party has, at the very time, the means of detecting at hand; or whether the words, which are general, shall be considered co-extensively with the cheat actually effected (1) A representation, though false, is not within the statute against obtaining property, &c., by false pretences, unless calculated to mislead persons of ordinary prudence and caution. The People v. Williams, 4 Hill, 9. An indictment lies for obtaining goods by false pretences where a party represents himself to be the owner of property, which does not belong to him, and thus fraudulently induces the owner to sell the goods to him on credit. The People v. Kendall, 25 Wend. 339. Where it was proved that the owner of a horse represented to another, that his horse, which he offered in exchange for the property of the other, was called the Charley, when he knew that it was not the horse called by that name, and that by such false representation he obtained the property of the other person in exchange; it was held, that the indictment was sustained, although the horse said to be the Charley was equal in value to the property received in exchange, and as good a horse as the Charley. State v. Mills, 17 Maine, 211. It is a well settled and rational rule that the false pretences, in order to sustain an indictment, must be such that, if true, they would naturally, and according to the usual operation of motives upon the minds of persons of ordinary prudence, produce the alleged results; or in other words, that the act done by the person defrauded, must be such as the apparent exigency of the case would directly induce an honest an ordinarily prudent person to do, if the pretences were true. People v. Stetson, 4 Barbour, 151. Eng. Com. Law Reps. xxiv. 453. by the false pretences used. These may, perhaps, be matters proper for the [ *466 ] *consideration of the jury, with the advice of the court." In the following case, however, the judges appear to have been of opinion, that the want of common prudence and caution, on the part of the prosecutor, was an answer to the indictment. The prisoner was indicted for obtaining meat from the prosecutor, who was a butcher, under pretence that he would pay for the same on delivery, and would send the money back by the servant of the prosecutor. The jury found a verdict of guilty, and that, at the tine the prisoner applied for the meat, and promised to send the money back, he did not intend to return the money, but by that means to obtain the meat and cheat the prosecutor. On a case reserved for the opinion of judges, they held the conviction wrong, and it was not a pretence within the meaning of the statute. It was merely a promise for future conduct, and common prudence and caution would have prevented any injury arising from the breach of it. Goodhall's case, Russ. & Ry. 461. So where an indictment charged the prisoner with falsely pretending to the prosecutor, whose mare and gelding had strayed, that he, prisoner, would tell him where they were, if he would give him a sovereign down, and that the prosecutor gave the sovereign, but the prisoner refused to tell. The judges held that the indictment should have stated (which was proved in evidence) that the prisoner pretended he knew where the horses were; and that the conviction upon it was wrong. Douglas's case, 1 Moo. C. C. 464. See also R. v. Henderson, Carr. & M. 328; R. v. Tully, 9 C. & P. 227; Reg v. Gruby, 1 Cox, C. C. 249. The pretence must be of some existing fact, made for the purpose of inducing the prosecutor to part with his property. Therefore a pretence that a party would do an act, he did not mean to do, as a pretence to pay for goods on delivery, is not a false pretence within the act, but merely, as held above, a promise for future conduct. Goodhall's case, supra. So an indictment for obtaining money from H. G. H. under the false pretence that the prisoner intended to marry H. G. H. and wanted the money to pay for a wedding suit he had purchased, is not sufficient to sustain a conviction. Reg. v. Johnston, 2 Moo. C. C. 254; see R. v. Copeland, post, p. 474. But it is no objection that the false pretences are of some fact relating to a future event. Thus, where the four prisoners came to the prosecutor, representing that they had betted that a person named Lewis should walk a certain distance within a certain time, and that they should probably gain, and thus obtained money from the prosecutor towards the bet, it was objected that, although the representation of a thing past or present, against which caution cannot guard, may be within the statute (30 Geo. 3, c. 24,) yet, if it be the representation of some future transaction, respecting which inquiries may be made, it is not an indictable offence, but the subject only of a civil remedy. The court of king's bench, however, were of opinion, that false pretences referring to future transactions, were equally within the statute. Young's case, 3 T. R. 98, see Reg. v. Christey, 1 Cox, C. C. 239. Where a person, with intent to defraud, gives a cheque upon a banker with whom he keeps no account, this is a false pretence within the statute. The prisoner, for the purpose of defrauding the prosecutor, gave him, in payment for goods, a cheque upon a banker with whom he kept no cash and had no account. He was indicted upon the statute 30 Geo. 2, c. 24, and Lara's case, (ante, p. 381,) [*467] was cited. *Per Bailey, J., "This point has been recently before the judges, and they were all of opinion that it is an indictable offence, fraudulently to 1 Eng. C. C. 461. d 2 Id. 464. • Eng. C. L. Reps. xli. 183. Id. xxxviii. 92. obtain goods by giving in payment a cheque upon a banker with whom the party keeps no cash, and which he knows will not be paid." Jackson's case, 3 Campb. 370; Henry Jackson's case, York Sum. Ass. 1830, coram Bayley, J., Matthews's Dig. C. L. 167. So where the prisoner was charged with falsely pretending that a post-dated cheque, drawn by himself, was a good and genuine order for 251., and of the value of 251., whereby he obtained a watch and chain; and the jury found, that before the completion of the sale and delivery of the watch by the prosecutor to the prisoner, he represented to the prosecutor that he had an account with the bankers on whom the cheque was drawn, and that he had a right to draw the cheque, though he postponed the date for his own convenience, all which was false; and that he represented that the cheque would be paid on or after the day of the date, but that he had no reasonable ground to believe that it would be paid, or that he could provide funds to pay it; the judges held that he was properly convicted. Parker's case, 7 C. & P. 825 ; S. C. 2 Moo. C. C. 1. See 2 Russ. by Grea. 300,(n.) An indictment on the 7 and 8 Geo. 4, c. 29, s. 53, stated that the prisoner contriving, &c., to cheat A. B., falsely pretended to A. B. that he was a captain in the East India Company's service, and that a certain promissory note which he then delivered to A. B., was a valuable security for 217.; by means of which false pretences he fraudulently obtained from A. B. 87. 15s., whereas the prisoner was not a captain, &c., and the note was not a valuable security, &c. It was held, as it did not appear but that the note was the prisoner's own note, or that he knew it to be worthless, there was no sufficient false pretence in that respect, and as the two pretences were to be taken together, that the indictment was bad, and the judgment given upon it was reversed in error. Wickham v. The Queen, 2 P. & D. 333; 10 A. & E. 34.h An indictment for obtaining money by false pretences charged that the defendant unlawfully did falsely pretend to C. S. that a certain paper writing, which he produced to C. S., was a good five pounds Ledbury bank note, by means whereof he unlawfully obtained money from C. S. with intent to cheat and defraud him of the same; whereas, in truth, and in fact, the paper writing was not a good five pounds note of the Ledbury bank. It was held that the indictment was bad, as it did not charge that the defendant knew that it was not a good five pounds note of the Ledbury bank, and that this was not aided by the allegation of the intent to defraud. R. v. Phillpotts, 1 C. & K. 112.1 The prisoner was indicted for a felony. It appeared that she went to a tradesman's house, and said that she came from Mrs. Cook, a neighbour, who would be much obliged if he would let her have half-a-guinea's worth of silver, and that she would send the half-guinea presently. The prisoner obtained the silver, and never returned, and this was held no felony. It was said to be, in truth, a loan of the silver upon the faith that the amount would be repaid at another time. It might be money obtained under a false pretence. The same determination has been made in similar cases at the Old Bailey. Coleman's case, 2 East, P. C. 672. Although there may have been a previous confidence between the parties, yet if the particular money or goods in question were obtained *under false [*468] pretences, it is an indictable offence within the statute. The prisoner was indicted under the 30 Geo. 2, for obtaining money under false pretences. The prosecutors Eng. Com Law Reps. xxxii. 755. h Id. xxxvii. 29. i Id. xlvii. 112. |