§ 1214. If the pretences explain themselves, and require no innuendoes, it is enough to state them in the terms in which they were expressed to the prosecutor at the time of the fraud. But verbal exactness is not required, as it is enough if the Substaneffect be substantially given ;3 nor need all that was said tial varibe stated if the operative pretence is averred. But a variance between the indictment and the evidence as to the effect of the pretences will be fatal. It is not necessary to set out, as in forgery, the tenor of a bad note by which property is obtained. But if set out, a variance may be fatal.7 unnecessary to aver expressly that the security was unsatisfied, at any rate since 7 Geo. IV. c. 64, s. 21, the objection being taken after verdict, and the indictment following the words of the statute creating the offence. Hamilton v. R., (in error) 9 Ad. & El. (N. S.) 271; 10 Jur. 1028; 16 L. J. M. C. 9; 2 Cox C. C. 11. D. was one of many persons employed whose wages were paid weekly at a pay-table. On one occasion, when D.'s wages were due, C. said to a little boy, “I will give you a penny if you will go and get D.'s money." The boy innocently went to the pay-table, and said to the treasurer, "I am come for D.'s money;" and D.'s wages were given to him. He took the money to C., who was waiting outside, and who gave the boy the promised penny: it was ruled that C. could not be convicted on the charge of obtaining the money from the treasurer by falsely pretending to the treasurer that he, C., had authority from D. to receive his money, or of obtaining it from the treasurer and the boy, by falsely pretending to the boy that he had such authority, or of obtaining it from the boy by the like false pretences to the boy; though he might be convicted on a count charging him with fraudulently obtaining it from the treasurer by falsely pretending to the treasurer that the boy had this authority. R. v. Butcher, Bell C. C. 6; 8 Cox C. C. 77. 1 See infra, ?? 1220, 1303. ance is fatal. 2 State v. Call, 48 N. H. 126, 1868; 2 East P. C. c. 18, s. 13, pp. 837, 838. See Com. v. Hulbert, 12 Metc. 446, 1847; State v. Eason, 86 N. C. 674, 1882. Infra, & 1219. If they are not self-explaining, their meaning must be supplied. Infra, & 1220. 3 R. v. Scott, cited in R. v. Parker, 2 Mood. C. C. 1; 8 C. & P. 825; State v. Call, 48 N. H. 126, 1868. Infra, ? 1219. In R. v. Powell, 51 L. T. (N. S.) 713, Huddleson, B., adopted from R. v. Giles, 34 L. T. 50, M. C., the following from Blackburn, J.: "It is not requisite that the false pretence be made by exact words if the idea be conveyed." As to wordless and obscure pretences, see supra, ? 1170. 4 R. v. Hewgill, Dears. C. C. 351; Cowen v. People, 14 Ill. 348, 1853. 5 Whart. Crim. Ev. 131; R. v. Plestow, 1 Camp. 494; R. v. Bulmer, L. & C. 476; 9 Cox C. C. 492; R. v. Speed, 46 L. T. (N. S.) 177; Com. v. Pierce, 130 Mass. 31, 1880; State v. Locke, 35 Ind. 419, 1871; Wallace v. State, 11 Lea, 542, 1883; Jones v. State, 8 Tex. App. 648, 1880; Marwilsky v. State, 9 Ibid. 377, 1880; Litman v. State, Ibid. 461, 1880, Kirtley v. State, 38 Ark. 543, 1882; Honeycut v. State, 23 Tex. App. 71, 1887. 6 Infra, & 1217. Infra, & 1233. Prehm v. State, 22 Nebr. 673, 1888. pretence to bargain must be averred. § 1215. The relation of the fraud to the bargain, in cases of sale, must appear. Thus it was held insufficient, in an In bargains relation of indictment for the sale of a spurious watch as genuine, to aver merely that S., the defendant, falsely pretended to the prosecutor "that a certain watch which he, the said S., then and there had, was a gold watch, by means whereof said S. then and there unlawfully, etc., did obtain from said (the prosecutor) sundry bank bills, etc., of the value, etc., with intent the said B. then and there to cheat and defraud of the same; whereas in truth and fact said watch was not then and there a gold watch, and said S. then and there well knew that the same was not a gold watch, to the damage," etc." "The indictment,' said Dewey, J., "does not allege any bargain nor any colloquies as to a bargain for a watch; nor any propositions of B. to buy, or of the defendant to sell, a watch; nor any delivery of the watch, as to which the false pretences were made, in the possession of B., as a consideration for the money paid the defendant. It seems to us that when money or property is obtained by a sale or exchange of property, effected by means of false pretences, such sale or exchange ought to be set forth in the indictment, and that the false pretence should be alleged to have been with a view to effect such sale or exchange, and that by reason thereof the party was induced to buy or exchange, as the case may be."3 In fine, when the case is one of sale or exchange, the indictment should set forth the sale or exchange, and aver that the false pretences were made with a view to effect such sale or exchange, and that by reason thereof the party was induced to part with his property; and when a false token or writing was the pretence, the indictment must aver that the defendant delivered the token or writing to the prosecutor, who took it in exchange for the goods." 1 R. v. Reed, 7 C. & P. 848; R. v. Martin, L. R. 1 C. C. 56; State v. Philbrick, 31 Me. 401, 1850; Com. v. Jeffries, 7 Allen, 548, 1863; Enders v. People, 20 Mich. 233, 1870; State v. Orvis, 13 Ind. 569, 1859; State v. Anderson, 47 Iowa, 142, 1877; State v. Williams, 103 Ind. 235, 1885. As to causal relations, see supra, ?? 1175 et seq. 2 Com. v. Strain, 10 Metc. 521, 1845; S. P., Com. v. Lannan, 1 Allen, 590, 1861. 3 Com. v. Strain, supra. See Com. v. Nason, 9 Gray, 125, 1857; Com. v. Jeffries, 7 Allen, 548, 1863. As to bad pleading of false agency, see R. v. Henshaw, L. & C. 444. * R. v. Reed, 7 C. & P. 848; State v. Philbrick, 31 Me. 401, 1850; Enders v. People, 20 Mich. 233, 1870. 5 Wagoner v. State, 90 Ind. 504, 1883. But see Baker v. State, 14 Tex. App. 332, 1883. In New York the law is less stringent; and where an indictment for obtaining property under false pretences charged that the prisoner, with an intent to defraud one A. G., Jr., did falsely pretend and represent to the said A. G., Jr., for the purpose of inducing the said A. G., Jr., to part with a yoke of oxen, of the goods and chattels of the said A. G., Jr., that," etc., "by which said false pretences he," the prisoner, "then did unlawfully obtain from the said A. G., Jr., the oxen mentioned; it was held that there was a substantial averment that the prisoner had obtained the property from the prosecutor by means of the false pretences made, and the latter's belief therein, and that the indictment was not defective in that particular.2 Skiff v. People, 2 Parker C. R. 139, 1853. See R. v. Martin, L. R. 1 C. C. 56; Com. v. Howe, 132 Mass. 250, 1882; State v. Jordan, 34 La. An. 1219, 1882. Clark v. People, 2 Lans. 329, 1870. See, to same effect, State v. Vanderbilt, 3 Dutch. 328, 1859; Baker v. State, 14 Tex. App. 332, 1883. Infra, & 1227. An indictment alleged that G. designedly and unlawfully did pretend to N. that A. wanted to buy cheese of N. and had sent G. to buy it for him, and that a certain paper described, purporting to be a ten dollar bill on the Globe Bank, in the city of New York, was a good bill, and of the value of ten dollars; by means of which false pretences said G. unlawfully obtained from said N. forty pounds of cheese, of the value of four dollars, and sundry bank bills and silver coins amounting to and of the value of six dollars, with intent to cheat and defraud; whereas the said A. did not want to buy cheese of said N., and had not sent G. to him for that purpose, and the paper was not a good bill of the Globe Bank, in the city of New York, and was not of the value of ten dollars, but spurious and worthless. It was held, on motion in arrest of judgment, that the false pretences set forth were such as might 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. Com. v. Hulbert, 12 Metc. 446, 1847. In Com. v. Coe, 115 Mass. 481, 1874, an indictment was sustained which alleged that the defendant falsely pretended that a certain certificate of shares of corporate stock was good and genuine, and of value as security for a loan of money which J. F., the prosecutor, was induced to make to him thereon. The pretended certificate was then set forth, and purported to be a certificate that the said J. F. was the owner of the shares of stock which it represents. "The offer of the certificate for such a purpose," said Wells, J., "is a representation that it is what it purports to be upon its face. Cabot Bank v. Morton, 4 Gray, 156, 1855. Com. v. Stone, 4 Metc. 43, 1840. The indictment sufficiently sets forth in what manner Ferris was defrauded by means of the certificate." It was further held that the "certificate is an instrument complete in Defen dant's allegation § 1216. 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 of prop erty must be proved as laid. variance.' A pretence that the defendant "had in Macon seven thousand dollars" has been held not sustained by proof of a pretence "that he had seven dollars less than seven thousand in a bank in Macon."2 § 1217. In an indictment setting forth that a bad and spurious note or coin had been passed by the prisoner on the prosecutor, it is not necessary to set forth the note at large or specifically to describe the coin.3 "When the setting out Spurious or bad note or coin need not be set out at large. can the instrument in the indictment," said Wilde, C. J., itself, and requires no further allega- obtained in the form of a loan. Comtions to fully set forth the right or monwealth v. Lincoln, 11 Allen, 233, contract of which it is a symbol, as 1865; Com. v. Coe, 115 Mass. 481, was necessary in Commonwealth v. 1874. Ray, 3 Gray, 441, 1855, and Commonwealth v. Hinds, 101 Mass. 209, 1869. And besides, this offence consists in the use of false tokens, and not the forgery of a written instrument." 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 It was also held "unnecessary that seventeen cwt., but only weighed one the indictment should set forth in its ton and thirteen cwt., they well knowterms, or by description, the cheque ing the pretence to be false, by means received for the loan. It is presumed of which false pretence they obtained to have been given and received as from A. 8s., with intent to defraud, is payment of the sum of money agreed good, and sufficiently describes an into be lent. Its designation as a dictable false pretence. R. v. Lee, L. 'cheque and order for the payment of & C. 418; 9 Cox C. C. 460. See money' sufficiently indicates its char- supra, 1159; and see Whart. on acter; and as a description of the Cont. 23 232 et seq. property obtained by the false pretences, would be good. Commonwealth v. Brettun, 100 Mass. 206, 1868." It may also be considered as settled by the same court that a false pretence is none the less a fraud because 1Com. v. Davidson, 1 Cush. 33, 1848. See Todd v. State, 31 Ind. 514, 1869. 2 O'Connor v. State, 30 Ala. 9, 1857. 3 Supra, 22 1129, 1162; infra, 1222; R. v. Coulson, 1 Den. C. C. 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." But the purport or generic designation must be accurately stated. Thus if an indictment for attempting to obtain money under false pretences charge the attempt to have been by means of a paper writing purporting to be an order for money, and the instrument as stated in the indictment cannot be considered to be such an order, it is bad.3 When pre § 1218. 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." tences are divisible, only part need be proved. Verbal ac curacy not § 1219. As has been already seen, if the effect of the pretences be rightly laid, a variance as to expression is immaterial." But the offence must be substantially required. averred." 592; 4 Cox C. C. 227; T. & M. 332; State v. Boon, 4 Jones, (N. C.) 463, 1857; State v. Dyer, 41 Tex. 520, 1874. See Baker v. State, 14 Tex. App. 332, 1883. 1 R. v. Coulson, ut supra. lap, 24 Ibid. 77, 1844; Com. v. Morrill, 8 Cush. 571, 1851; People v. Stone, 9 Wend. 182, 1833; People v. Haynes, 11 Ibid. 565, 1834; Skiff v. People, 2 Parker C. R. 139, 1853; People v. Oyer & Terminer Court, 83 N. Y. 436, 1881; People v. Blanchard, 90 Ibid. 314, 1882; Com. v. Daniels, 2 Pars. 332, 1847; Britt v. State, 9 Humph. 31, 1848; Cowen v. People, 14 Ill. 348, 1853; Beasley v. State, 59 Ala. 20, 1877; Smith v. State, 55 Miss. 513, Where it is charged in the indictment that the prisoner obtained the property upon the security of his promissory note, through false and fraudulent representations as to his ability to pay the same, an averment of his neglect to make payment of 1878; State v. Vorbeck, 66 Mo. 168, the note is not essential. Clark v. 1877. Supra, 1168; Whart. Crim. Ev. 131. People, 2 Lans. 329, 1870. et seq. * R. v. Hill, R. & R. 190; R. v. Ady, 7 C. & P. 140; R. v. Hewgill, Dears. 315; 24 Eng. Law & Eq. 556; R. v. English, 12 Cox C. C. 171; State v. Mills, 17 Me. 211, 1840; State v. Dun 5 Lord Raym. 886; 2 Camp. 138-9; Cro. C. C. (7th ed.) 662; State v. Haskall, 6 N. H. 352, 1833; Com. v. Kneeland, 20 Pick. 206, 1838. Infra, 1316. 6 Supra, 1214; State v. Vanderbilt, 3 Dutch. 328, 1859; State v. Goble, 60 Iowa, 447, 1883. 7 State v. Lambeth, 80 N. C. 393, 1879; Musgrave v. State, 133 Ind. 297, 1892. |