But an averment that the defendant falsely pretended that he had an order from a certain person, whose name he did not disclose, to purchase the goods at a certain price, is sustained by proof that he falsely pretended that he had an order from that person to purchase the goods and bargained for them on his own behalf at that price. But such a count is not sustained by proof that he falsely pretended that he had an order to purchase them, without stating that the order came from a person in New York.' And an allegation that a certificate sold as for one hundred shares, was not such, "but was false, forged, and counterfeit, and of no value," is not a descriptive allegation; and proof that a certificate purporting to be for one hundred shares of stock is in fact a certificate issued for one share and subsequently altered, is no variance.'

(b) Variance as respects the person defrauded.-An indictment for obtaining, under false pretenses, a promissory note alleged to have been executed by the person defrauded is not sustained by evidence showing that the note was jointly executed by him and another. So, upon a trial for swindling a firm styled B. K. & Co., evidence showing the style of the firm to be B. & K., is a fatal variance. Such a variance is not cured in Missouri by a statutory provision, that a variance between the indictment and proof as to the name of any per

the property of the accused was not incumbered by any lien. Held, that the charge was not sustained by proof that, in response to a question as to his ownership of his property, the accused falsely stated that he did not owe a dollar to any man.-Sharp v. State, (N. J.) 21 Atl. Rep. 1026. An indictment for the fraudulent breach of a trust alleged that the trust consisted in safely keeping lumber for A. The evidence was that the trust consisted in sawing lumber in a mill on A.'s premises, and shipping it to market. Held, that the variance was fatal.-State v. Green, 5 Rich. N. S. 65. Where, in an indictment charging defendant with stealing a mule, there was no allegation charging that defendant obtained the property by any false pretext, and the proof showed that he obtained such property with the consent of the owner; held, that evidence to show a false pretext or guilty intent on the part of the defendant, when he borrowed the mule, could not be admitted.-Marshall v. State, 31 Tex. 471.

1 Com. v. Jeffries, 7 Allen 548; 83 Am. Dec. 712.

2 Com. v. Coe, 115 Mass. 481.

3 People v. Reed, 70 Cal. 529.

4 Mathews v. State, 33 Tex. 102.

son therein set forth is not ground of acquittal unless the court before trial find it material or prejudicial.'

But where an indictment charges a false pretense to have been made to H. B. Jones, and that proved was made to Hiram B. Jones, the variance is immaterial if the proof shows that H. B. Jones and Hiram B. Jones are the same person.❜ And under an indictment charging false pretenses to a county, evidence of false pretenses to its officers does not constitute a variance. So, also, an indictment alleging that defendant obtained goods of partners in trade by false pretenses made to them, is sustained by evidence that the defendant made the false pretenses to their clerk and salesman, who communicated them to one of the partners, and that the goods were delivered to the defendant by reason of the false pretenses.*

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(c) Variance as to property or signature obtained.—If an indictment charges the obtaining by false pretenses a note executed by W. to S. and the evidence discloses that the note was executed by W. to J., and by him assigned to S., the variance is fatal. So on an indictment for obtaining credit under false representations, by mortgaging a "dark bay mare mule," and representing it to be defendant's, conviction cannot be had on proof of mortgaging a "mouse-colored mare mule, named Mag." An averment of obtaining a sum of money by false pretenses is not supported by proof of obtaining a certificate of deposit of a bank.' And proof that defendant obtained a package of money in gold or silver coin

1 State v. Reynolds, 17 S. W. Rep. 322. In the case last cited -a trial of an indictment in the words of the statute, for an attempt to defraud one W. W. S., the State introduced in evidence an order purporting to be drawn by Mrs. M. J. S. for the payment of $10 to defendant, but not addressed to any one, accompanied by evidence that such order was presented to the clerks of a firm of which S. was a partner and general business manager, with the representation that M. J. S. was the wife of S. Held, a fatal variance.

* Franklin v. State 52 Ala. 415.

3 Roberts v. People, 9 Colo. 458.

4 Com. v. Harley, 7 Metc. 462. And see Com. v. Mooar, Thach. Cr. Cas. 410.

5 Wallace v. State, 11 Lea 542.

Berrien v. State, 83 Ga. 381.
Com. v. Howe, 132 Mass. 250.

will not meet an allegation that he, by false pretenses, obtained a package of money in "bank bills.” '

But proof that one obtained by false pretenses $500 "in national bank-notes," will sustain an indictment for so obtaining $500 "in money of the currency of the United States." And where an indictment alleges that defendant obtained money by means of false pretenses, and the evidence shows that he obtained a check on a bank, and that the drawer of the check went with defendant to the bank, identified him, and that the bank then took the check from defendant, paid him the money it called for out of money deposited in the bank by the drawer, and charged the same to the drawer's account, there is no variance in the proof.'

(d) Variance as to value, or amount.-On a trial for false pretenses consisting in misrepresenting the value of property, the sum named in the indictment as having been alleged by the prisoner as the value of the property, is material, and should be proved as laid. Thus, an allegation in an indictment that the prisoner pretended "that he had in Macon seven thousand dollars," is materially variant from a pretense "that he had seven dollars less than seven thousand in a bank in Macon."

And where the indictment charged that defendant represented that a firm, of which he was a member, was then in debt to the amount of not more than three hundred dollars, and the representation proved was that the firm did

1 State v. Kube, 20 Wis. 217; 91 Am. Dec. 390. An indictment alleged that the defendant falsely and knowingly presented and pretended to A. that a certain writing, in the form of a bank bill, was a good bank bill for the payment of five dollars; that A., believing the representation, was thereby induced to deliver to the defendant certain goods, and certain genuine bank bills and coins, in exchange for said writing, and that the defendant thereupon delivered said writing to A. for five dollars, whereas said writing was not a good bank bill for five dollars, as the defendant then well knew. Held, that the indictment was not proved by evidence that the writing was a bill of a bank that had failed. - Com. v. Stone, 4 Metc. 43. 2 Edwards v. State, 49 Ala. 334.

3 State v. Palmer, 40 Kan. 474.

4 Todd v. State, 31 Ind. 514; following 1 Cush. 33; 30 Ala. 9; disapprov ing 13 Wend. 87.

5 O'Connor v. State, 30 Ala. 9.

not then owe more than four hundred dollars, the variance was fatal.'

But where the indictment charged the obtaining by false pretenses the signature of a party to a promissory note, by pretending that the defendant had money in the hands of a third person, who was absent, it was held that it was not necessary to prove the amount represented to be the identical sum stated in the indictment, provided it was sufficient to meet the payment of the note which the party was induced to sign.' And where an indictment alleged the false pretense to be that defendant falsely represented that he had "a large amount of money on deposit" in a certain bank, evidence of his representation that he had "$5,000 on deposit" there supported the allegation, which was one of substance. Nor in such case is there a fatal variance between an allegation that $106 was obtained, and proof that the amount obtained was $109.'

CHAPTER XLIX.

INSTRUCTIONS; VERDICT; SENTENCE; PUNISHMENT.

§ 438. Questions of law and fact.

439. Instructions to the jury.

440. Verdict.

441. Sentence.

442. Punishment.

§ 438. Questions of law and fact.-As a matter of pleading, the question of the sufficiency of the representations to

1 Com. v. Davidson, 1 Cush. 33. An indictment charged the obtaining of $9 from one H. by a false pretense that he was indebted to defendant in that amount. Held, not to be sustained by proof of a pretense that H. owed the defendant $6, and obtained $6 thereby.-Marwilsky v. State, 9 Tex. App. 377; Litman v. State, Id. 461.

People v. Herrick, 13 Wend. 87.

Moore v. State, 20 Tex. App. 233.

deceive a man of common understanding is one of law for the court;' and it is not error for the judge to refuse to charge that the pretense must appear upon the indictment to be such as could not be guarded against by an exercise of common sagacity and prudence; the sufficiency of the indictment being a question of law.'

But in New York, the question whether the false pretense was calculated to deceive and was capable of defrauding is one for the jury; unless some inducing circumstance on the face of the indictment shows that the pretense is immaterial.‘ Where representations set forth in the indictment are proved, the sense in which they were used, and what was designed to be, and was understood from them, are questions for the jury; and it is error for the court not to submit to the jury the question whether the act charged was done with intent to cheat and defraud. In determining the criminality of the false pretenses, the jury may take into consideration the ability or capacity to detect them of the person defrauded.'

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§ 439. Instructions to the jury.-In Georgia, on a prosecution for cheating and swindling, under Code, § 4595, it is proper to charge the jury that defendant's statement is not made under oath, and that he is not subject to punishment for perjury, but that they may give it such weight as they deem proper. An instruction that "if the jury find that the bargain in which the alleged false pretenses were made, and its object was to secure the seller for a past debt and a future credit, then the defendant cannot be convicted," is properly qualified by adding: "If the defendant, at the time such representations were made, obtained any of the property * * * by reason of the alleged false pretenses, the indict

1 State v. Burnett, 119 Ind. 392.

2 Smith v. People, 47 N. Y. 303.

3 People ex rel. Phelps v. Oyer & T., 83 N. Y. 436.

Thomas v. People, 34 N. Y. 351.

People v. Blanchard, 90 N. Y. 314.

State v. Norton, 76 Mo. 180; Brown v. People, 16 Hun 535.

* Cowan v. People, 14 Ill. 348.

8 Ratteree v. State, 77 Ga. 774.