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(i.) Intent. § 2127 a. When to be proved. - Intent in most cases is inferrible from the guilty act, and need not be substantively proved. 8 Yet at the same time it is easy to conceive of cases in which men handling large sums of money may be supposed to use false pretences, inadvertently, and in which, to convict, there should be positive proof of guilty intent. Thus, a surveyor of highways, having authority to order gravel for the roads, ordering gravel as usual, and applying it for his own use, is not liable to a charge of obtaining it by false pretences ; nor for larceny, unless it positively appears that he did not mean to pay for it. t

How to be proved. — Yet, as has been already fully seen, whenever a guilty act is deliberately performed, the law imputes to it a guilty intent, u and it is always admissible to fortify this presumption by showing guilty preparations, or other acts from which the intent may be gathered. v Thus, upon an indictment for obtaining goods by falsely pretending that the buyer owed but little, and had ample means to pay all his debts, and that his note for $250 was good, it is competent for the state to prove that within three days after he mortgaged the greater part of his personal property to another, as bearing upon his intent in making such representations. w It does not negative the intent to defraud that the defendant intended to pay for the articles obtained when able, x nor that he paid in part, at the time, for the articles obtained, y nor that a trap was laid for him by the prosecutor. 2

(j.) Knowledge of the Falsity of the Pretences. § 2127 b. Falsity, in the sense of the statutes, must be subjective as well as objective; the statement must not only be false in fact, but it must be known to be false by its utterer. a It should be remembered, however, that proof of knowledge of a negative is almost always circumstantial and inferential. In what way this proof is constituted, has been already partially considered. 6 2. Position of Prosecutor at the Time, as to Carelessness or

s See post, $ 2160; and ante, $ 631, w State v. Call, 48 N. H. 126 647, 712. See also People v. Herrick, (Bellows, J., 1867). 13 Wend. 87.

2 R. v. Bowen, 13 Q. B. 790. i R. v. Richardson, 1 F. & F. 488- y R. v. Eagleton, Dears. 515 ; 3 Eng. Wightman.

Law & Eq. 540. u See ante, $ 631, 647, 651.

z Ante, $ 2101 a. v See ante, $ 631, 649, 651.

a R. v. Philpott, 1 C. & K. 112; R. v. Henderson, 2 Moody, 192.

Culpability.

(a.) Fraud need not be Latent. $ 2128. We have seen, that to a cheat at common law it is essential that the fraud should be latent.c It was in part to meet this difficulty that the statute of false pretences was passed, and under this statute it has been repeatedly held that it matters not how patent the falsity of a pretence may be, if it succeeds in defrauding. Thus, in a leading case, Lord Denman, C. J., said, in answer to the statement that the false pretences, to become the subject of indictment, should be such as would deceive a man of average intelligence. “I never could see why that should be. Suppose a man had just enough (fraud) to impose upon a very simple person, and defraud him ; how is it to be determined whether the degree of fraud is such as will amount to a misdemeanor ?d Hence want of prudence on the part of the prosecutor is no defence, when the prosecutor was really imposed upon. e Thus on an indictment averring the defendant did falsely pretend that eleven thimbles, which he then produced, were silver, and of the value of five shillings, and more, &c., whereas in fact they were of base metal, a conviction was sustained by several of the judges on this very ground. f

§ 2129. To this rule, however, some exception has been taken. Thus, in New York, it was once laid down that a representation, though false, is not within the statute, unless calculated to deceive persons of ordinary prudence and discretion.g So, in Pennsylvania, it was said : “ Broad, however, as is the phrase • for any false pretence whatever,' it still has a legal limit beyond which it cannot be carried in this or any other case. It extends no farther than to a case where a party has obtained money or property by falsely representing himself to be in a situation in which he is not, or any concurrence which has not happened, to b See ante, $ 2110-2.

R. v. English, 12 Cox C. C. 171; Com. c See ante, $ 2059.

v. Henry, 10 Harris, 256. d R. v. Wickham, 10 Adol. & E. s R. v. Ball, 3 Russ. on Cr. 289; 1 34.

C. & Mars. 240. Ante, $ 2104. e R. v. Woolley, 1 Den. C. C. 559; g People v. Williams, 4 Hill, 9.

which persons of ordinary caution might give credit. Where the pretence is absurd or irrational, or such as the party injured had at the very time the means of detecting at hand, it is not within the act. h And the same rule obtained in Arkansas. ¿ In Pennsylvania, however, such is no longer the law, it being now held that “it is no less a false pretence that the party imposed upon might, by common prudence, have avoided the imposition.”j And in New York, the position first taken has been somewhat qualified. k “ Though the language of the statute, by any other false pretence,' is exceedingly broad,” says Jewett, J., in a later case, “and in its general acceptation would include every kind of false pretence, and though it may be difficult to draw a line which would exclude cases where common prudence would be a sufficient protection, still I do not think it should be so interpreted as to include cases where the representation was absurd or irrational, or where the party alleged to be defrauded had the means of detection at hand. The object of the statute, it is true, was to protect the weak and credulous against the wiles and stratagems of the artful and cunning. But this may be accomplished under an interpretation which should require the representation to be an artfully contrived story, which would naturally have an effect upon the mind of the person addressed, - one which would be equal to a false token or false writing, — an ingenious contrivance or unusual artifice, against which common sagacity and the exercise of ordinary caution would not be a sufficient guard.” 1

It is submitted, however, that whether the prosecutor “ had the means of detection at hand,” or whether “the pretences were of such a character as to impose upon him," are questions of fact, to be left to the jury, as they must necessarily vary with the particular case. If fraudulent and false pretences were used, and goods obtained by them, nothing but very gross carelessness will justify an acquittal. The statutes suppose defective caution,

h Com. v. Hutchinson, 2 Penn. Law k See post, $ 2130. Jour. 243. See also Com. v. Spring, 1 People v. Crissie, 4 Denio, 529, 3 Penn. Law Jour. 89; State v. Estes, Jewett, J. See People v. Stetson, 4 46 Maine, 150; Com. v. Haughey, 3 Barbour, 151; ante, $ 2129; and PeoMetc. (Ky.) 221.

ple v. Sully, 5 Parker C. C. 142; R. i Burrow v. State, 7 Eng. (Ark.) 65. v. Roebuck, ante, $ 2123; R. v. Mills, į Com. v. Henry, 10 Harris, 256, ante, $ 2127. Woodward, J. VOL. 11.

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for if there were perfect caution no false pretences could take effect. m With this view accords a well considered English case in which it was held that the offence was made out where the defendant fraudulently offered a £1 Irish bank note as a note for £5, and obtained change as for a £5 note, even though the person from whom the change was obtained could read, and the note itself upon the face of it clearly afforded the means of detecting the fraud. n

(6.) Carelessne88 amounting to Consent estops Prosecutor. $ 2131. Yet, on the other hand, carelessness so gross as to amount to a consent to fraud, estops the prosecutor from maintaining a prosecution.o Thus, in Massachusetts, in 1865, it was held that obtaining money from the prosecutor on the ground that on a former occasion he had not given due change, was not within the statute. P

(c.) Prosecutor buying off Pretended Prosecution. $ 2132. It was held, in New York, on a demurrer, that an indictment for obtaining a watch from a person, upon the false representation that the defendant was a constable, and had a warrant against such person, issued by a justice of the peace, for the crime of rape, and that he would settle the same if the person defrauded would give the defendant the watch, could not be sustained. The reasoning of the court seems to have been, that if the prosecutor was guilty of rape, he was in some degree "particeps criminis " with the prisoner, and hence could make out no case ; and if he was not guilty, the pretences were not sufficiently reasonable to impose upon a prudent man of average intelligence. q But this is not law where the prosecutor is simply the victim of ignorant terror, and endeavors under its influence to buy off a supposititious prosecution. r

m R. v. Hamilton, 9 Ad. & El. (N. proceeded to a man named Sutton, who S.) 270; People v. Haynes, 14 Wend. kept an oyster cellar, and communi537; Cowen v. People, 14 Ill. 348; cated to him the most extravagant Greenough, in re, 31 Vt. 279. Gross statements of the crowds who were carelessness is to be determined by expected to attend, and of the great the capacity of the prosecutor. The advantage to Sutton, if he could secure weaker the mind, the less stringent the situation of refreshment provider. the rule. Ibid.; R. v. Woolley, 1 Den. This all might have passed without risk, C. C. 559; Temp. & M. 279. Mr. but Jones went further, and informed Vaux's collection of “Recorder's Sutton that he, Jones, had already Cases” gives an amusing illustration received seventy-five dollars for the of this kind of false pretence, i. e. the refusal of the place. This suggestion “ humbugging." A Col. J. S. Jones was at once effectual, and Sutton paid seized the opportunity of the presence, down seventy-five dollars in cash. in Philadelphia, of the President of The result was, that the concert was the United States and the Governor wretchedly attended, “ only nineteen of Pennsylvania, to announce a con- dollars and fifty cents were received cert for the joint benefit of the “ Dart- at the door," and Col. J. Jones was moor prisoners,” certain relics of the bound over for obtaining the seventyWar of 1812, well known in Philadel- five dollars by false pretences. phia on all public celebrations, and of n R. v. Jessop, Dears. & B. C. C. a volunteer company of which he was 442; 7 Cox C. C. 399. the head. Inflated with the belief of o See ante, $ 751 a. the immensity of the attraction, Jones p Com. v. Norton, 11 Allen, 266.

(d.) That Prosecutor made False Representations is no Bar.

§ 2132 a. There may be cases where both parties employed false representations ; but if so, while each can be convicted on an independent prosecution, neither can set up the other's guilt as a defence to an indictment against himself. 8

The same remark applies, as has been seen, to cases where a trap was laid to catch the defendant, in case he should attempt the cheat. t

(e.) Nor is Prosecutor's Gross Credulity. § 2132 6. No more striking illustration can be found of this than in the prosecutions sustained against conjurors and fortune tellers. Nothing but gross incredulity could be imposed on by such pretenders; yet it is on behalf of those thus imposed on that prosecutions have been sustained. t1

(f.) “ Bragand Loose Talk. § 2133. While a false affirmation may be within the statute, such is not the case with loose talk, ta or the bragging statement

9 People v. Stetson, 4 Barbour, & Com. v. Morrell, 8 Cush. 571. 151-2; S. P., McCord v. People, 46 | Ante, $ 2101. N. Y. (1 Sickles) 470. See People v. 11 R. v. Giles, L. & C. 502; 10 Cox Williams, 4 Hill (N. Y.), 9. As to C. C. 44. See State v. Phifer, 65 N. where the goods were parted with as C. 321, and ante, $ 2092 a. a trap, see ante, $ 2101.

to R. v. Hamilton, 9 Adol. & El. (N. r Com. v. Henry, 10 Harris, 253. S.) 270; Com. v. Henry, 10 Harris, Ante, $ 2100. R. v. Asterly, 7 C. & P. 256; State v. Phifer, 65 N. C. 321. 191.

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