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was reached is matter of argument, not of pleading.k It is said in Missouri that the phrase, "by color of said false pretence,"

is bad. l

Substantial statement. - There must be always something to show adequately that the party defrauded was induced to part with his property by relying upon the truth of the alleged false statements. m And it is not, as a general rule, as has been seen, n enough to aver false statements as to the value of property sold, and then to aver the obtaining of money. A sale of the property should be averred, as the chain connecting the other averments.o

In an indictment against A., for obtaining goods from B. by false pretences, an averment that B. " was induced, by reason of the false pretences so made as aforesaid, to purchase and receive, did then and there purchase and receive of the said A.” certain property, "and to pay and deliver, and did pay and deliver therefor, and as the price thereof," certain goods, sufficiently charges that B. was induced by the false pretences to pay and deliver, and that induced by false pretences he did pay and deliver, and is not defective for not repeating the words "then and there" before the words "to pay and deliver," or before the words "did pay and deliver."

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The allegation of "a sale on credit," is supported by proof of a sale for a note payable in four months. q

The indictment need not charge that any false token or counterfeit letter was used, even where false token, or writing, is alternately used in the statute.r

Delivery of goods must appear. A delivery of the property must be averred, as the result of

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the false pretences. 8

fries, 7 Allen, 549. Contra, State v. Vanderbilt, 3 Dutch. 328; Clark v. People, 2 Lansing, 330. Ante, § 2149. p Com. v. Hooper, 104 Mass. 549 (1870).

q Com. v. Davidson, 1 Cush. 33. Ante, § 2124 a.

r Skiff v. People, 2 Parker C. R. (N. Y.) 139. Ante, § 2124.

s Com. v. Strain, 10 Metc. 521; Com. v. Lannan, 1 Allen, 590; State v. Philbrick, 31 Maine, 401; Com. v. Goddard, 4 Allen, 312. See also Com.

It is not a fatal error that the obtaining of the signature to a promissory note, and the obtaining the money on the same, are stated to be on two distinct days. t

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Obtaining from wife or agent. Obtaining from A.'s wife, on A.'s directions, supports an averment of obtaining from A. And so obtaining by an agent supports an averment of obtaining by the principal. v

Varying counts.- Counts varying the pretences, and the parties defrauded, may be joined. w

6. Attempts.

§ 2162 a. The general law as to attempts is hereafter fully discussed. So far as concerns the particular offence now under consideration, only one or two special points are to be noticed.

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§ 2162 b. (a.) Conviction of attempt under indictment for substantive offence. At common law this is not permissible. In England and in several of the United States, however, it is authorized by statute. Hence we have a number of reported cases where there was a conviction of the attempt under the ordinary indictment for obtaining goods by false pretences. y

§ 2162 c. (b.) In attempts the question of prudence or imprudence of the prosecutor does not arise; but a conviction may be had where there was a fruitless attempt to obtain goods by a false pre

tence. z

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§ 2162 d. (c.) Where only credit on account is proved, the defendant may be convicted of the attempt. It has been already seen, a that an indictment for the consummated offence cannot be sustained when only a credit on account was obtained. But under these circumstances the defendant may be convicted of an attempt. b

§ 2162 e. (d.) Question for jury is whether attempt was really made. Thus where a prisoner, being employed at a hospital,

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wrote to the prosecutor, as manager, for a small quantity of linen, not saying it was for the hospital, and in point of fact he was not manager, and the goods were really ordered for himself, but not sent; on an indictment for an attempt to obtain them, the question left to the jury was, whether he ordered the goods as for and on behalf of the hospital, or in his own name, there being no evidence of an intention to pay cash, but evidence of its absence.c § 2162 f. (e.) In an indictment for an attempt to obtain by a false written instrument, a variance as to instrument is fatal. Thus it has been ruled that where the indictment charges the instrument to be a money order, and the proof does not sustain this, a conviction is erroneous. d But the instrument need not, if correctly designated, be set out. e

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§ 2162 g. (f.) Nor is it sufficient baldly to aver an "attempt," without in some way stating the means. Thus, an indictment was held bad which stated that A. did unlawfully attempt and endeavor to obtain from B. a large sum of money (stating it), with intent to cheat and defraud B. f

7. Receiving Goods obtained by False Pretences.

§ 2162 h. At common law, persons receiving goods knowing them to be fraudulently obtained by false pretences, will be indictable as accessaries after the fact, if the obtaining is a statutory felony; or, certainly if cognizant of the original design, as principals, where the obtaining is a statutory misdemeanor. By statutes in England and elsewhere, however, such receiving is made a substantive offence. To sustain a conviction in any view, it is necessary to prove that the defendant knew that the goods were obtained by false pretences.g

e R. v. Franklin, 4 F. & F. 94. d R. v. Cartwright, R. & R. 106. Post, § 2702-6.

e R. v. Coulson, T. & M. 332; 1 Den. C. C. 592.

f R. v. Marsh, 1 Den. C. C. 505; T.

& M. 192. Post, § 2702-6.

g R. v. Rymes, 3 C. & K. 327.

585

CHAPTER XI.

SECRETING PROPERTY WITH INTENT TO DEFRAUD. — FRAUDULENT INSOLVENCY.

I. STATUTES.

II. OFFENCE GENERALLY.

1. THERE MUST BE AN ACTUAL SECRETING, OR ASSIGNING OF THE GOODS, § 2167.

2. AN INTENT MUST BE SHOWN TO PRE

I. STATUTES.

VENT THE PROPERTY FROM BEING
MADE LIABLE FOR THE PAYMENT OF
DEBTS; OR, IN CASE OF RECEIVERS,
A GUILTY KNOWLEDGE OF SUCH IN-

TENT, § 2168.

§ 2163. By the stat. 13 Eliz., which makes void all conveyances, &c., with intent to defraud creditors, it is provided that the parties to any "such feigned, covinous, or fraudulent feoffment, gift, grant, alienation, bargain, conveyance, bonds, suits, judgments, executions," &c., "which at any time shall wittingly and willingly put in use, avow, maintain, justify, or defend the same or any part of them as true, simple, and done, had, or made bona fide, and upon good considerations; or shall aliene or assign any the lands, tenements, goods, leases, or other things beforementioned, to him or them conveyed as is aforesaid," besides the civil penalty," being lawfully convicted thereof, shall suffer imprisonment for one half year without bail or mainprise." By stat. 27 Eliz. the same provision is extended to those concerned in similar devices to defraud purchasers. a

§ 2164. In a leading case reported under this statute, b it was held, in arrest of judgment, by Maule, J., delivering the opinion of his brethren, that an indictment lies under the act, for a fraudulent alienation of real estate. c

[The statutes of New York and Pennsylvania will be found in the 6th edition of this work at § 2165-6.]

a See 2 Russ. on Crimes, 315; Roberts's Digest, Brit. Stat. 294; 1 Chitty's Stat. 385.

b R. v. Smith, 6 Cox C. C. 36.

c See, for form of indictment, Wh. Prec. 518.

II. OFFENCE GENERALLY.

§ 2166. These statutes, so far as concerns the secreting of goods, may be treated as creating a new offence, which, though of recent origin, is of frequent occurrence in the courts. To constitute it and the statutes are throughout so similar as to make the proceedings under them almost identical-it is necessary that there should be,

1st. An actual secreting, assigning, or conveying of goods, &c., or a reception of the same.

2d. An intent to prevent such property from being made liable for the payment of debts, or in case of deception, a guilty knowledge of such intent.

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§ 2167. 1st. There must be an actual secreting or assigning of the goods. It is not enough that the debtor, in his creditor's face, refuses to surrender property which the creditor claims. Thus it was held that a refusal of a defendant to deliver up a watch to the sheriff's deputy was not within the statutes. d The object of the law is not to make a man indictable who resists process, since for this another procedure exists, but to prevent the secret and covinous disposal of property in such a way as to elude the pursuit of the law and baffle an execution. A pointed illustration of this is the case of a trader, who, after obtaining credit by stocking his store with goods, either hides such goods until such time as he may be able, without suspicion or disturbance, to convert their proceeds to his own use, or consign them to auction under such covers as may enable him to turn them into cash without his creditor's knowledge. It would seem, from analogy to the statutes of Elizabeth, that the offence would continue to be indictable, even if a consideration were received, if the intent to defraud was proved.

§ 2168. 2d. An intent must be shown to prevent the property from being made liable for the payment of debts; or, in case of receivers, a guilty knowledge of such intent. It is not enough that it should be that the debtor's object was to give a preference to a particular creditor. e

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All creditors are protected by the act, and as "creditors," it seems, may be classed even those whose debts are not yet due.ƒ d People v. Morrison, 13 Wend. 399.

e Com. v. Hickey, 2 Parsons, 317. f Johnes v. Potter, 5 S. & R. 519.

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