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§ 2116. An indictment charged the prisoner with attempting, by false pretences made to J. B. and others, to defraud the said J. B. and others of certain goods, the property of the said J. B. and others. On the trial it was proved that the prisoner made the false pretences set forth in the indictment to J. B. only, with intent to defraud J. B. and others, his partners, of property belonging to the firm ; it was held that there was no variance between the indictment and the proof, as the words, “and others," in the allegation that the false pretence was made “to J. B. and others,” might be rejected as surplusage.t
§ 2117. The prosecutor, however, cannot prove false pretences made by a third person, alleged to have been made by the procurement of the defendant, without first showing that the defendant instigated such person to make them ;u nor can the defendant, who fraudulently negotiates spurious paper, be convicted under the statute, for the subsequent act of the purchase of such spurious paper, done innocently and without the defendant's knowledge or instigation, in obtaining money on such paper. v
(9.) They must relate to a Past or Present State of Things.
$ 2118. A false pretence, under the statute, must relate to a past event or existing fact. — Any representation in regard to a future transaction is excluded. w Thus, for instance, a false statement that a draft, which the defendant exhibits to the prosecutor, has been received from a house of good credit abroad, and is for a valuable consideration, on the faith of which he obtains the prosecutor's goods, is within the law; a promise to deposit with him such a draft at some future time, though wilfully and intentionally false, and the means of the prosecutor parting possession with his property, is not. So a pretence that the party would do an act that he did not mean to do (as a pretence that he would pay for goods on delivery), was holden by all the judges not to be a false pretence, within the statute of Geo. 2;x and the same rule is distinctly recognized in this country.y Thus, to take as an illustration an English case, on an indictment for obtaining goods in a market by falsely pretending that a room had been taken at which to pay the market people for their goods, the jury found that the well-known practice was for buyers to engage a room at a public house, and that the prisoner conveyed to the minds of the market people that she had engaged such a room, and that they parted with their goods on such belief : it was held, there being no evidence that the prisoner knew of such a practice, and the case being consistent with a promise only on her part to engage such a room and pay for the goods there, a conviction could not be sustained.z
t R. v. Kealey, 1 Eng. Law & Eq. R. R. v. Lee, Leigh & Cave C. C. 309; 585; 2 Den. C. C. 68.
R. v. Goodhall, R. & R. 461. u Per Bronson, C. J., People v. Par- * R. v. Goodhall, R. & R. 461; R. r. ish, 4 Denio, 153.
Wakeling, Ibid. 504 ; R. v. Oates, I v Post, $ 2140.
Dears. C. C. 459; 29 Eng. Law & Eq. w Dillingham v. State, 5 Ohio (N. 552. S.) 280 ; State v. Evers, 49 Mo. 542;
So also where the prosecutor lent £10 to the prisoner on the false
pretence that he was going to pay his rent, and if the prisoner had not told him that he was going to pay his rent, the prosecutor would not have lent the money : it was held, that, this was not a false pretence of any existing fact, to warrant a conviction. a
$ 2119. But promise does not vitiate if there be accompanying false pretence. — If there be, however, the false statement of an existing fact, the adding to this of false promises does not take the case out of the statute. b And this holds even though the prosecutor would not have yielded to the pretence without the promise.c
(h.) They must have been the Operative Cause of the Transfer.
$ 2120. Where, in Massachusetts, one of the representations proved was, that the defendant gave a false name, and where the prosecutor testified that this misrepresentation had no influence in inducing him to part with his goods, it was held to have been the duty of the court, either at the time or in the charge, to instruct the jury that such misrepresentation was not, upon the evidence, proved to have been an inducing motive to the obtaining of the goods by the defendant. d The same view generally obtains.e
y Com. v. Drew, 19 Pick. 184 ; Com. 6 R. v. Jennison, Leigh & Cave, 159; r. Burdick, 2 Barr, 163 ; People v. R. v. West, 8 Cox C. C. 12; R. v. Haynes, 11 Wend. 565; 14 Ibid. 550; Asterley, 7 C. & P. 191; State v. RowBurrow v. State, 7 Eng. (Ark.) 65; ley, 12 Con. 101. Of this principle Com. v. Lincoln, 11 Allen, 233 ; Glac- a striking illustration is given ante, kan v. Com. 3 Metc. Ky. 232. Ante, $ 2108; and as to promises to marry, $ 2087.
see ante, $ 2098. 2 R. v. Burrows, 11 Cox C. C. 258. c R. v. West, 8 Cox C. C. 12; R. v. a R. v. Lee, 9 Cox C. C. 304. Fry, 7 Cox C. C. 394; Dears. & B. 449.
$ 2121. Yet they need not be the sole motive. — Thus it is not necessary to a conviction that false pretences should be the sole inducement by which the property in question is parted with ; if they have controlling influence, it is enough, although other minor considerations operate upon the mind of the party.f And this is true even though the prosecutor would not have surrendered the goods solely on the pretence alleged.g
2122. Must have been before bargain closed. h - If they were not made use of until after the bargain was consummated, it cannot be said, with truth, that it was by force of them the property was obtained. Thus, where a purchase of merchandise is made, the goods selected, put in a box, and the name of the purchaser and his place of residence marked thereon, and the box containing the goods sent by the vendor, and put on board a steamboat designated by the purchaser, to be forwarded to his residence, the sale is complete, and the goods become the property of the purchaser; and where, after such delivery, the vendor, on receiving information inducing him to suspect the solvency of the purchaser, expressed an intention to reclaim the goods, and the purchaser thereupon made representations in respect to his ability to pay, by means of which the vendor abandoned his intention, and the purchaser was then indicted, charged with the offence of having obtained the goods by false pretences, the representations made by him being alleged as false pretences : it was held, that the sale being complete before the representations were made, the defendant could not be considered guilty of the crime charged against him. i So where a carrier, having ordered a cask of ale, said, after he had possession of it, “ This is for W.”: It was held, that an indictment for obtaining it by falsely pretending that he was sent for it by W. could not be sustained. j
d Com. v. Davidson, 1 Cush. 33; State v. Mills, 17 Maine R. 211; Com. v. Drew, 19 Pick. 179. See State v. Dunlap, 24 Maine, 77; R. v. Com. v. Herschell, Thacher's C. C. 70; Hewgill, Dears. 315; 24 Eng. Law & Schleisinger v. State, 11 Ohio State R. Eq. 556; R. v. English, 12 Cox C. C. 669.
171. See Bowler v. State, 41 Miss. e People v. Miller, 2 Parker C. R. 570; and post, $ 2153. 197; State v. Tomlin, 5 Dutch. 14; R. 9 Ante, $ 2119. v. Dale, 7 C. & P. 352. Post, $ 2162. h State * Vanderbelt, 3 Dutcher,
f People v. Haynes, 14 Wend. 546; 334; State r. Tomlin, 5 Dutcher, 14. People v. Herrick, 18 Wend. 87; i People v. Haynes, 11 Wend. 557; Thomas v. People, 7 Tiffany, 351. 14 Wend. 546; See R. v. Dale, 7 C. & See People v. Stetson, 4 Barbour, 151; P. 352. Post, $ 2162.
$ 2123. When prosecutor resorts to verification. — The prisoner offered a chain in pledge to a pawnbroker, falsely and fraudulently stating that it was a silver chain, whereas in fact it was not silver, but was made of a composition worth about a farthing an ounce. The pawnbroker tested the chain, and finding it withstood the test, he, relying on his own examination and test of the chain, and not placing any reliance upon the prisoner's statement, lent the prisoner ten shillings, the sum he asked, and took the chain as a pledge. It was held, that if the money had been obtained by the statement made by the prisoner, he might have been convicted of obtaining it by false pretences; but that, as the prosecutor relied entirely upon his own examination, and not upon the false statement, the prisoner was properly found guilty of an attempt to commit that offence.k Yet this result would not be reached if the parties were reversed, and if a jeweller made the false pretence as to material, and an ignorant purchaser resorted to some imperfect verification of his own. In the last case, the probability would be that the vendor's false pretence would be operative; in the first case, it would be the contrary. $ 2124. Pretence must operate as direct cause.
If the case is one of post hoc, but not propter hoc, the statute does not apply. This was the reasoning in an English case where the prisoner, by falsely pretending that he was a naval officer, induced the prosecutrix to enter into a contract to lodge and board him at a guinea a week, and under this contract he was lodged and supplied with various articles of food. It was held, that a conviction for obtaining the articles of food by false pretences could not be sustained, as the obtaining of the food was too remotely the result of the false pretence. I
But when statements were made on different occasions, it is for the jury to say whether they were so connected as to form one transaction.m
į R. v. Brooks, 1 F. & F. 502 — 1 R. v. Gardner, 36 Eng. Law & Eq. Wightman.
640 ; 7 Cox C. C. 136 ; R. v. Hamilton, k R. v. Roebuck, 36 Eng. Law & Eq. 9 Ad. & El. (N. S.) 276 ; and see post, 631; Dears. & B. C. C. 24; 7 Cox C. $ 2140. C. 126. Post, $ 2126.
m R. v. Welman, 20 Eng. Law &
§ 2124 a. Goods must have been obtained for defendant and in accordance with his directions ; but if 80, it is no defence that they were obtained instrumentally through a contract which the defendant's false pretence induced the prosecutor to make. - Hereafter it will be seen that the goods must have been obtained for the defendant and in accordance with his directions. n. At this point it is to be observed that the cases are plain to the effect that it matters not whether the goods were obtained immediately by the false pretence, or mediately by a contract to which the false pretence induced the prosecutor to consent. O
§ 2125. Delivery by servant of false accounts of payments. Where the foreman of a manufactory, who was in the habit of receiving from his master money to pay the workmen, obtained from him, by means of false written accounts, more than he had really paid them, or they had earned, it was held within the act; and all the judges, after much deliberation, agreed, that if the false pretence created the credit, the case was within the statute ; and they considered that, in this case, the defendant would not have obtained the credit but for the false account which he had delivered, and, therefore, that he was properly convicted. p
$ 2126. Prosecutor witness to prove preponderating influence.
- The prosecutor in a trial for obtaining an indorsement by false pretences, may testify to the influence of the defendant's representations in inducing him to indorse. 9
$ 2127. Necessary that prosecutor should have believed the representations. — It is an essential ingredient of the offence, that the party alleged to have been defrauded should have believed the false representations to be true, for if he knew them to be false, he cannot claim that he was influenced by them. r
Eq. 588; Dears. C. C. 188; 6 Cox C. p R. v. Whitehall, 2 East P. C. 830; C. 153.
but see post, $ 2149. n Post, $ 2140.
9 People v. Miller, 2 Parker C. R. o R. v. Abbott, 1 Den. C. C. 273; 2 (N. Y.) 197. C. & K. 630; R. v. Dark, 1 Den. C. C. r People v. Stetson, 4 Barbour, 151; 276; R. v. Kenrick, 1 D. & M. 208; 5 R. v. Dale, 7 C. & P. 352; R. r. Mills, Q. B. 49; Com. v. Davidson, 1 Cush. 40 Eng. Law & Eq. 562 ; 7 Cox C. C. 33; Com. v. Hooper, 104 Mass. 549; 263 ; Dears. & B. 205 ; Com. v. HulCom. v. Jeffries, 7 Allen, 549; State v. bert, 12 Metcalf, 446. Ante, $ 2121, Newell, 1 Mo. 248. Post, $ 2162. 2122.