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of mere matter of opinion. u Thus, where a servant went into the prosecutor's store, and said he wanted some money for his master to buy some wheat, and the prosecutor gave him ten pounds, this was held not within the statute. v And so where the indictment alleged that the defendant falsely pretended a sum of money, parcel of a certain larger sum, was “due and owing” to him for work which he had executed for the prosecutors, it was held that this was not an allegation of a false pretence of an existing fact, as the allegation in the indictment might be satisfied by evidence of a mere matter of opinion, either as regarded fact or law, and therefore the indictment was bad. So, also, has it been held that the loose statement that third

person owed the defendant, without saying how much, is not an adequate pretence. y

a

(g.) Indebtedness of Prosecutor to Defendant no Defence. § 2133 a. That the prosecutor was indebted to the defendant to an amount equal to the value of a chattel obtained by the false pretences, is no defence.z But it is otherwise when money is paid in satisfaction of a debt actually due. a

3. Property included by Statutes.

(a.) Obligations, &c. § 2134. The construction of the New York statute, as to "signatures to a written instrument,” has been already noticed, and, as has been seen, the law in that state now is, that it is necessary, to make up the offence, that the instrument should be of such a character as likely to work a prejudice to the signer, but that the fact that it would have been void for fraud will be no defence.

An indorsement of a negotiable promissory note is within the statute. c

u See State v. Tomlin, 5 Dutcher, shoes,” upon which a pair was given 13. See ante, $ 2102, as to “puffs.'

to him. v R. v. Smith, 2 Russ. on Cr. 312. y State v. McGee, 11 Ind. 154. Com. v. Barker, 8 Phil. R. 613.

2 People v. Smith, 5 Parker C. C. x R. v. Oates, 29 Eng. Law & Eq. 490. See ante, $ 1770. Rep. 552 ; 1 Dears. C. C. 188; and see a Post, $ 2137. also R. v. Wakeling, R. & R. 504, b People v. Crissie, 4 Denio, 525; where the defendant, as an excuse People v. Galloway, 17 Wend. 540. for not working, said he had “no c People v. Chapman, 4 Parker C.

C. 56.

It is not necessary that any actual loss should be sustained by the signer of the signature fraudulently obtained. d

In Pennsylvania it was held that the obtaining a receipt in discharge of a debt, by means of a worthless note of a broken bank, is not within the 21st section of the act of 12th July, 1842, the reasoning of the court seeming to be, that the receipt was a thing of no account, not being an extinguishment of the debt, e

§ 2135. G., secretary to a burial society, was indicted for falsely pretending that a death had occurred, and so obtaining from the president an order on the treasurer in the following form :

“Bolton United Burial Society, No. 23. “ Bolton, September 1st, 1853.

“Mr. A. Entwistle, Treasurer, - Please pay the bearer £2 108., Greenhalgh, and charge the same to the above society. " Robert Lord.

Benjamin Beswick, President.”:

It was held that this was a valuable security under the 7 & 8 Geo. 4, c. 29, s. 53, as explained by the 5th section of the same statute. f

§ 2136. A railway ticket is a “chattel,” and the obtaining it by false pretence from a servant of the company, so as to enable the holder to travel on the line, is an obtaining a chattel by false pretence, within the stat. 7 & 8 Geo. 4, c. 29, s. 53.g

(6.) Money paid in satisfaction of a Debt actually due. § 2137. A false representation to induce a party to pay an honest debt is not within the statute, though payment be thereby obtained. h Accordingly, where an indictment charged that T., who held a promissory note against J., which was due, called for payment, and with intent to defraud J., falsely represented the note to have been lost or burned up, whereby the latter was induced to pay it; it was held insufficient to sustain a conviction, as not showing any legal injury resulting to J., nor an intent on the part of T. to work such injury. ¿

d State v. Pryor, 30 Ind. 350. h Com. v. Thompson, Lewis's Crim. e Moore v. Com. 8 Barr, 260. Law, 197, cited Com. v. Henry, 10 f R. v. Greenhalgh, 25 Eng. Law & Harris, 256. Eq. 570; 1 Dears. C. C. 267; 6 Cox C. i People v. Thomas, 3 Hill N. Y. C. 257.

169. g R. v. Boulton, 2 Car. & Kir. 17; S. C. 1 Den. C. C. 508.

565

(c.) Credit on Account will not sustain Indictment. § 2138. It would seem also, that the mere obtaining of credit is not within the statute. j Thus where, to induce his bankers to pay his checks, a defendant drew a bill on a person on whom he had no right to draw, and which had no chance of being paid; in consequence of which the bankers paid money for him, it was holden not to be within the act, because he only obtained credit, and not any specific sum on the bill. k But when the money or goods ultimately pass on the credit so obtained, the statutory offence is consummated, I and even for the credit, the defendant may be convicted of an attempt. m

(d.) But otherwise as to Goods not at the Time in existence.

$ 2138 a. The statute includes the obtaining of a chattel not in existence when the pretence was made. n Thus a prisoner was indicted for obtaining by false pretences a spring van. By false pretences, he induced the prosecutor to enter into a contract to build and deliver a van for a certain sum of money, and the prosecutor on the faith of those pretences, built and delivered the van in pursuance of the original order, although the prisoner countermanded the order after the building, and before the delivery. It was held, that to bring the case within the statute, it is not necessary that the chattel should be in existence when the false pretence is made, but that the obtaining is within the statute if the pretence is a continuing one, so that the chattel is made and delivered in pursuance of the pretence; that the question whether the pretence is or is not such a continuing one is one of fact for the jury, and that here there was evidence from which the jury might infer that it was such a continuing one.o

(e.) Actual Injury to Owner need not be proved. § 2139. When the goods have been obtained, an intent to defraud need only be proved, and not an actual defrauding ; P and hence it is not necessary to charge loss or damage to the prosecutor; the offence being complete when the goods, &c., are obtained by false pretences with intent to cheat and defraud ; it not being essential that actual loss or injury should be sus

j R. v. Eagleton, Dears. C. C. m Post, $ 2686-92. 515; 6 Cox C. C. 559.

n R. v. Martin, Law Rep. 1 C. C. k R. v. Wavell, 1 Moody C. C. 224. 56; 10 Cox C. C. 383. I R. v. Kenrick, 5 Q. B. 49; R. v.

o Ibid. Abbott, 1 Den. C. C. 273; ante, p R. v. Bloomfield, 1 C. & M. 537. $ 21 24 a.

tained.

(f.) Goods must not have belonged to the Defendant, in whole or

as a Member of a Firm. § 2139 a. On this point it is only necessary to recall the doctrine already laid down in respect to larceny, that the prosecution fails if it appear that the goods obtained, at the time of obtaining, belonged to the defendant, either jointly or severally. r This rule applies equally to prosecutions for false pretences, in in all cases involving partnership accounts. 8 (g.) Goods must have been obtained for Defendant, and in

accordance with his Directions. § 2140. It has been already seen that the pretences need not be made, or the goods obtained by the defendant personally, but that it is sufficient if he is represented in this respect by agents, directed by himself. t At the same time, the defendant is not criminally responsible for acts of independent third parties in the subsequent use, without any privity with him, of instruments of fraud constructed by him. u

The goods must be obtained for himself. Thus, in an English case, tried in 1853, the prisoner, who had a circular letter of credit for £210 from a bank at New York, authorizing him to draw for that sum on the Union Bank of London, in favor of certain named correspondents in foreign countries, went to St. Petersburgh, and having fraudulently altered the figures in the letter of credit, so as to make it appear to be a letter of credit for £5,210, presented it so altered to W. & Co., St. Petersburgh, one of the specified correspondents, and drew in their favor on the Union Bank a check for the sum of £1,200. This check was cashed for the prisoner by W. & Co., who sent it to London, and had it presented at the Union Bank ; but the bank, discovering the fraud, refused to pay it. It was held that the prisoner was not indictable for an attempt to obtain £1,200, by false pretences from the Union Bank, since, if W. & Co. had obtained payment, it would not have been in pursuance of the prisoner's wish or desire; and they would have obtained the money for their own and not for the prisoner's use or benefit, and therefore there would have been no obtaining of any money by him. Lord Campbell, C. J., said: “I am of opinion that this conviction cannot be sustained. The question is, whether, supposing the Union Bank had honored the check, the prisoner could have been indicted under this act of parliament for obtaining money by false pretences. I am clearly of opinion that he could not. I do not proceed on the ground of the offence having been committed beyond the jurisdiction of the criminal courts of this country; for a person abroad may, by the employment as well of a conscious as an unconscious agent, render himself amenable to the law of England, when he comes within the jurisdiction of our courts. But I am clearly of opinion that this would not have been an obtaining money by false pretences within the meaning of the statute. I think the act means that the money should be obtained according to the wish, or to gain some object of the party who makes the false pretence. Here the obtaining it was not to gain any object of the prisoner; no advantage could arise to him from the check being honored. v He had gained his full object when he was in St. Petersburgh. It was a matter of perfect indifference to him whether Wilson & Co. did or did not obtain payment from the Union Bank. It would have been much more for his benefit had the check been lost at sea on its passage from St. Petersburgh to London. As has been observed by my brother Coleridge, the object of the statute was, that in cases where there were nice distinctions between larceny and fraud, the party should not go unpunished ; and it was with a view to the case of larcency that this enactment has been adopted by the legislature. Now, with regard to larceny, we must always see that in the act alleged to constitute the offence, the person committing had some advantage, not necessarily a pecuniary advantage, but the gratification of some wish, otherwise it would not be larceny. We are pressed by the finding of the jury, that the prisoner meant Wilson & Co. to present the v But see on this point Com. v. Harley, 7 Metc. 462. Ante, $ 2115.

9 People v. Herrick, 13 Wend. 87. 8 R. v. Evans, L. & C. 252 ; 9 Cox See parallel rulings in forgery and C. C. 238. larceny, ante, § 1444 j, 1789.

t See ante, $ 2114. p See ante, $ 1822.

u See ante, $ 751 b, 2124 a.

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