have been effectual in accomplishing a fraud on N., in the manner alleged; that neither the omission to allege that G. knowingly made the false pretences, nor the omission to mention any person whom he intended to defraud, rendered the indictment bad; and that there was no objection to the indictment on the ground of duplicity. i

Rule in obtaining money by false weight. — An indictment alleging that the prisoners falsely pretended to A. that some soot which they then delivered to A. weighed one ton and seventeen cwt., whereas it did not weigh one ton seventeen cwt., but only weighed one ton and thirteen cwt., they well knowing the pretence to be false, by means of which false pretence they obtained from A. 88. with intent to defraud, is good, and sufficiently describes an indictable false pretence.j

§ 2151. The amount of property stated by the defendant to belong to him must be proved as laid. Thus where the averment was that the defendant represented a firm, of which he was a member, to be then owing not more than three hundred dollars, and evidence was given of a representation by him that the firm did not then owe more than four hundred dollars; this was held to be a fatal variance. k

A pretence that the prisoner "had in Macon seven thousand dollars," is not sustained by proof "that he had seven dollars less than seven thousand in a bank in Macon." l

§ 2152. Spurious bank note need not be set out at large. In an indictment setting forth that a flash bank note had been passed by the prisoner on the prosecutor, it is not necessary to set forth the note at large. "When the setting out the instrument in the indictment," said Wilde, C. J., "cannot afford the court information, it is unnecessary that it should be set out. Here it is alleged that a certain piece of paper was unlawfully and falsely represented by the prisoner to be a good and valid promissory note, whereas it was not so. It appears to me that all the cases show that where the instrument has been required to be set out in the indictment, something has turned on the construction of the paper." m But the purport must be accurately

i Com. v. Hulbert, 12 Met. 446.

j R. v. Lee, L. & C. 418; 9 Cox, C. C. 460. See ante, § 2105.

k Com. v. Davidson, 1 Cush. 33; Todd v. State, 31 Ind. 514.

1 Langtry v. State, 30 Alab. 537.

m R. v. Coulson, T. & M. 332; 1

stated. Thus if an indictment for attempting to obtain money under false pretences charges it to have been attempted by means of a paper writing purporting to be an order for money, and the instrument cannot be considered as stated in the indictment to be such an order, it is bad. n

§ 2153. Pretences divisible, and only part need be proved. It is not necessary to prove the whole of the pretences charged; proof of part, and that the property was obtained by force of such part, is enough. And the principle derives support from the practice in the analogous cases of perjury and blasphemy.p

§ 2154. Verbal accuracy not required. If the idea of the pretences be rightly laid, a variance as to expression is immaterial. q

When necessary to explain by innuendoes or definition. — When the false pretences consist in words used by the respondent, it has been said to be sufficient to set them out in the indictment as they were uttered, without undertaking to explain their meaning. But this must be taken with some qualification, since, as in perjury and libel, it is proper and necessary that language otherwise unintelligible should be explained for the instruction of the court. Otherwise a court in error or arrest of judgment could not say that the pretences constituted an indictable offence.

An indictment stated that, by the rules of a benefit society, every free member was entitled to five pounds on the death of his wife, and that the defendant falsely pretended that a paper which he produced was genuine, and contained a true account of his wife's death and burial, and that he further falsely

Den. C. C. 592. See, also, § 2148 a, Parker C. R. (N. Y.) 139; Com. v. and § 2150. Morrill, 8 Cush. 571; Cowen v. Peon R. v. Cartwright, R. & R. C. C. ple, 14 Illinois, 348; State v. Dunlap, 24 Me. 77. Ante, § 616, 2121.

106.

pretended that he was entitled to five pounds from the society by virtue of their rule, in consequence of the death of his wife; by means of which "last false pretence" he obtained money; this was held good. s

(d.) Description of Property.

§ 2155. Same as in larceny. generally laid down apply. t

To this the rules heretofore

Value.-In New York it is said that an indictment for obtaining property by false pretences need not allege that the property was of any particular value. u Such, however, is not the general rule, which requires that some value should be alleged, v a variance as to such value being immaterial. w

§ 2156. Description need not be exhaustive. - An indictment need not state all the property which the defendant obtained by the false pretences set forth. x

§ 2157. Property obtained must be individuated. It is necessary that the property obtained should be identified so as to protect the defendant in case of a second prosecution. Thus where an indictment for obtaining the signature of a person to a deed of land did not allege that the grantor in the deed owned or claimed any title to the lands conveyed thereby, and the description of which lands was in the most general terms, as certain land in the State of Texas and United States of America, and the date of the deed was nowhere averred, so that it would be impossible to identify the instrument; and it did not appear that the deed would tend to the hurt or prejudice of the grantor, and there was no averment that the deed could not be more particularly described, it was held, that in these particulars the indictment was defective. y

Owner must be stated. It is necessary to state whose the

s R. v. Dent, 1 C. & K. 249.

t See ante, § 354-63, 610-14; and see State v. Kube, 20 Wisc. 217.

u People r. Stetson, 4 Barbour, 151-2. See, also, Com. v. Lincoln, 11 Allen (Mass.), 233.

w Ante, § 362, 613, 1817.

x People v. Parish, 4 Denio, 153; Com. v. Davidson, 1 Cush. 33. See Skiff v. People, 2 Parker C. R. (N. Y.)

139.

y Dord v. People, 9 Barb. Sup. Ct.

v Ante, § 362, 1817; State v. Ladd, 671. 82 N. H. 110.

property was at the time. z "Of the moneys of B." is a sufficient allegation of ownership. a

с

(e.) "Whereas in Truth and Fact" (negation of Pretences). § 2158. It is generally necessary for the pleader to negative specifically the false pretences relied on to sustain the indictment. b Hence if the proof be adequate as to the offence, though only coming up to a portion of the pretence averred in the indictment, a conviction was good. c In R. v. Perott, the question was thoroughly examined by Ellenborough, C. J., and it was remarked as a reason for the rule above laid down, "to state merely the whole of the false pretence, is to state a matter generally combined of some truth as well as falsehood." Such is the law in New York.d But it would seem to be safer to negative each pretence specifically in the indictment; it being plain that if only one of the assignments is well laid, and is proved on trial to have been the moving cause of the transfer of property from the prosecutor to the defendant, the rest may be disregarded. e It is difficult to say how a court, on demurrer or motion in arrest of judgment, can go behind the indictment and say that the particular assignment, though one among many, which the pleader has omitted to negative, was not the operating motive on the prosecutor's mind. In a case, however, where one portion of the assignment of fraud must necessarily, from its structure, be true,-e. g. where the defendant pretends that, being the servant of A. B., he was employed by him to convey goods to the defendant, for the carrying of which porterage is charged, and where the fact is that the defendant is the servant of A. B., but was not employed by him to carry the goods in question, it is of course only necessary to negative what is in fact the false pretence used.

z R. v. Martin, 3 N. & P. 472; 8 Ad. & E. 481; R. v. Norton, 8 C. & P. 196; Sill v. R., Dears. C. C. 132; 1 EL. & Bl. 553; now unnecessary by 24 & 25 Vict. c. 96; R. v. Parker, 3 Q. B. 292; State v. Lathrop, 15 Verm.

279.

Amos v. State, 10 Humph. 117; R. v. Perott, 2 M. & S. 379; State v. Webb, 26 Iowa, 262.

c R. v. Hill, R. & R. 190; Com. v. Morrell, 8 Cush. 571; State v. Smith, 8 Black. 489.

d People v. Stone, 9 Wend. 182; a R. v. Godfrey, Dears. & B. 426; People v. Haynes, 11 Wend. 563. 7 Cox C. C. 392.

e See ante, § 618.

Tyler v. State, 2 Humph. 37;

(f) Scienter and Intention.

§ 2159. Defendant's knowledge of the falsity of the pretences. -This knowledge is material,f and hence must be averred, unless the pretences stated are of such a nature as to exclude the possible hypothesis of the defendant not knowing of their falsity.g

§ 2160. An intent to defraud must be proved or presumed; h but it is not necessary, in England, to state, to use the language of Lord Denman, C. J., h1 "that the false pretence was made with the intention of obtaining the thing, if it be proved that in fact the party charged did intend to obtain the thing, made the false pretence, and did thereby obtain it. I am by no means sure that it is necessary even to prove that the representation was made with the particular intent."

§ 2161. An intent to defraud the firm necessarily includes an intent to defraud each of its members, and no prejudice can happen to the accused, by a failure to set forth in the indictment the names of all the persons meant to be injured, or that the law would presume it was designed to injure. ¿

An averment that A. " did receive and obtain the said goods of said B. from said B. by means of the false pretences aforesaid, and with intent to cheat and defraud the said B. of the same goods," is a sufficient averment that the goods were designedly obtained.j

(g.) "By means," &c., of which Pretences.

§ 2162. Formal statement of "means."

The property must be distinctly averred to have been obtained by means of the pretence. But the process of reasoning by which the conclusion

f Ante, § 2127 b.

g R. v. Philpotts, 1 C. & K. 112; R. v. Keighley, Dears. & B. 145; 7 Cox C. C. 217; Com. v. Speer, 2 Virg. Cases, 65; though see Com. v. Blumenthal, cited Wharton's Prec. 242; and Com. v. Hulbert, 12 Metc. 446. See as to general pleading of scienter, ante, § 297.

h People v. Getchell, 6 Mich. (2

Cooley) 287; Scott v. People, 62 Barbour, 62.

h1 R. v. Hamilton, 9 Ad. & El. (N. S.) 276. That the omission of the allegation of intent is not fatal, see State v. Bacon, 7 Vt. 219; Jim . State, 8 Humph. 603.

iStoughton v. State, 2 Ohio St. 562. See ante, § 1492-5.

j Com. v. Hooper, 104 (Mass.) 349.