Innuen

does and definitions proper when explanation

is re

quired.

§ 1220. 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 constitute an indictable offence. § 1221. The description of property obtained is required to be the same as in larceny. But unless required by statute the indictment need not allege that the property was of any particular value. When, however, the punishment depends upon value, some value should be alleged," a variance as to such value being immaterial if within the

Description of property

to be as in

larceny.

statute."

If a signature to negotiable paper be obtained, it must be stated as such."

An indictment need not state all the property which the defendant obtained by the false pretences set forth.

1 State v. Call, 48 N. H. 126, 1868. See Skiff v. People, 2 Parker C. R. 139, 1853.

In a case already cited to another point, the 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 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. R. v. Dent, 1 C. & K. 249.

Nesbitt, 102 Cal. 327, 1894; Hagerman v. State, 54 N. J. L. 104, 1892; Jamison v. State, Ibid. 445, 1881. That a description as a "certain lot of dry goods" is inadequate, see Redmond v. State, 35 Ohio St. 81, 1878.

People v. Stetson, 4 Barb. 151, 1848; State v. Gillespie, 80 N. C. 396, 1879; Whart. Cr. Pl. & Pr. 215. See, also, Com. v. Lincoln, 11 Allen, 233, 1865.

2 See People v. Oyer & Terminer is a sufficient description. Com. v. Coe, Court, 83 N. Y. 436, 1881.

See supra, & 977; and see Com. v. Howe, 132 Mass. 250, 1882; State v. Kube, 20 Wis. 217, 1866; Treadaway v. State, 37 Ark. 443, 1881; People v.

115 Mass. 481, 1874. But see Bonnell v. State, 64 Ind. 498, 1878.

People v. Parish, 4 Denio, 153, 1847. See Skiff v. People, 2 Parker C. R. 139, 1853.

must be

uated.

§ 1222. The property obtained must be identified so as to protect. the defendant in case of a second prosecution.' Thus, Property where an indictment for obtaining the signature of a obtained person to a deed of land did not allege that the grantor in individthe deed owned or claimed any title to the land conveyed thereby, and a description of the land 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. Goods, as a rule, should be described with the same particularity as in larceny.3

§ 1223. It is necessary to state whose the property was at the time. "Of the moneys of B." is a sufficient allegation Owner of ownership. A special property is sufficient to sus- must be

tain an averment of ownership."

stated.

§ 1224. It is necessary for the pleader to negative specifically the false pretences relied on to sustain the indictment;7 Pretences but if the proof be adequate as to the offence, though must be only coming up to a portion of the pretence averred in negatived.

1 State v. Crooker, 95 Mo. 389, 1888. Dord v. People, 9 Barb. 671, 1851. * State v. Reese, 83 N. C. 637, 1880. Indictment should aver that defendant acquired the goods. Cannon v. State, (Tex.) 15 S. W. Rep. 117, 1890.

* R. v. Martin, 3 N. & P. 472; 8 Ad. & El. 481; R. v. Norton, 8 C. & P. 196; Sill v. R., Dears. C. C. 132; 1 El. & Bl. 553. See State v. Lathrop, 15 Vt. 279, 1843; Halley v. State, 43 Ind. 509, 1873.

People v. Haynes, 11 Wend. 557, 1834; R. v. Perrott, 2 M. & S. 379; Under 8 & 9 Vict. c. 109, s. 17, an Redmond v. State, 35 Ohio St. 81, indictment charging that the prisoner, 1878; Tyler v. State, 2 Humph. 37, by fraud in playing at cards, did win 1840; Amos v. State, 10 Ibid. 117, from A. a sum of money with intent to 1849; State v. Webb, 26 Iowa, 262, cheat A., need not necessarily allege 1868. See Com. v. Rosenberg, 3 Lanc. that the money won was the property L. Rev. 75, 1886. The negation must of A. R. v. Moss, Dears. & B. C. C. be specific. Keller v. State, 51 Ind. 104. But an indictment for a con- 111, 1875; State v. Bradley, 68 Mo. spiracy to obtain goods by false pre- 140, 1878; State v. De Lay, 93 Mo. tences, not stating whose property the 98, 1887; State v. Palmer, 50 Kans.

the indictment, a conviction is good. In fact, as is well said by Lord Ellenborough, "to state merely the whole of the false pretence is to state a matter generally combined of some truth as well as falsehood." Where, however, there are several distinct pretences, it is better to negative each pretence specifically in the indictment; since if only one of the pretences thus negatived be well laid, and be 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.3

Scienter

averred.

§ 1225. The defendant's knowledge of the falsity of the pretences is material, and hence must be averred, unless must be the pretences stated are of such a nature as to exclude the possible hypothesis of the defendant's ignorance of their falsity. A reckless statement of a fact of which the narrator is ignorant may be equivalent to a statement he knows to be false."

§ 1226. An intent to defraud must be averred and proved; but

318, 1893; State v. Metsch, 37 Kans. alleged that the defendant "did un222, 1887; State v. Trissler, 49 Ohio lawfully falsely pretend," etc., it was St. 583, 1892; People v. Reynolds, 71 held that the omission of the word Mich. 343, 1888; People v. Behee, 90 "knowingly" was no ground for arMich. 356, 1892. resting the judgment. R. v. Bowen, 4 New Sess. Cas. 62; 13 Q. B. 790; 3 Cox C. C. 483.

1

Supra, 1218; R. v. Hill, R. & R. 190; Com. v. Morrill, 8 Cush. 571, 1851; People v. Stone, 9 Wend. 182, 1832; People v. Haynes, 11 Ibid. 557, 1834; State v. Smith, 8 Blackf. 489, 1847.

2 R. v. Perrott, ut supra.
3 See Whart. Crim. Ev.

Supra, 1218.

4

5 R. v. Philpotts, 1 C. & K. 112; R. v. Keighley, Dears. & B. 145; 7 Cox C. C. 217; Com. v. Speer, 2 Va. Cas. 65, 1817; State v. Bradley, 68 Mo. 140, 1878; though see Com. v. Blumenthal, 131-3. cited Whart. Prec. 242; and Com. v. Hulbert, 12 Metc. 446, 1847. See, as to general pleading of scienter, Whart. Cr. Pl. & Pr. 164. That "designedly" implies a scienter, see State v. Snyder, 63 Ind. 203, 1879.

Supra, 22 1165, 1185, 1210. State v. Blauvelt, 38 N. J. L. 306, 1876; People v. Spiegel, (N. Y.) 38 N. E. Rep. 284, 1894; People v. Fitzgerald, 92 Mich. 328, 1892.

6

Supra, 1185. See Reese Mining Co. v. Smith, L. R. 4 H. L. 79. Infra, 1246.

7

Thus an indictment for obtaining money under false pretences must allege that the defendant knew the falsehood: "falsely and fraudulently" is not enough. R. v. Henderson, 2 M. C. C. 192; Car. & M. 828; State v. Bradley, 68 Mo. 140, 1878. Supra, 21185. But where the indictment Nebr. 33, 1890; State v. Lewis, 41 La.

Supra, 2 1184; People v. Getchell, 6 Mich. 496, 1859; Scott v. People, 62 Barb. 62, 1872; State v. Jackson, 112 Mo. 585, 1892; State v. Clark, 46 Kans. 65, 1891; Jacobs v. State, 31

Intent to

must in

it is not necessary, in England, to state, to use the language of Lord Denman, C. J., "that the false pretence defraud was made with the intention of obtaining the thing, if it some way be proved that in fact the party charged did intend to appear. 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."

An intent to defraud a firm necessarily includes an intent to defraud each of its members, and hence it is enough, when a firm is defrauded, to aver an intent to defraud a member of the firm.2

An intent laid to defraud any one having an interest in the property is enough.3

An. 590, 1889; State v. Switzer, 63 Vt. 604, 1891; State v. Garris, 98 N. C. 733, 1887; State v. Burke, 108 N. C. 750, 1891; U. S. v. Bradford, 53 Fed. Rep. 542, 1893; U. S. v. Beatty, 60 Fed. Rep. 740, 1894; State v. Kain, 118 Mo. 5, 1893.

The intent to defraud is not sufficiently set forth in a statement that A. did unlawfully attempt and endeavor fraudulently, falsely, and unlawfully to obtain from the Agricultural Cattle Insurance Company a large sum of money, to wit, £22 108., with intent to cheat and defraud the company. R. v. Marsh, 1 Den. C. C. 505; T. & M. 192; 3 New Sess. Cas.

699.

1 R. v. Hamilton, 2 Cox C. C. 11; 9 Ad. & El. (N. S.) 276; cited fully, supra, 1213. That the omission of the allegation of intent is not fatal after verdict, under statute, see State t. Bacon, 7 Vt. 219, 1835; Jim v. State, 8 Humph. 603, 1848. That it is no variance that the proof goes only to a part of the money, to which the intent to defraud relates, see R. v. Leonard, 3 Cox C. C. 284; 1 Den. C. C. 304.

Under the English statutes the following rulings have been made, which are applicable to the corresponding statutes of this country.

Under 7 Geo. IV. c. 64, s. 21, an indictment for obtaining goods by means of false pretences, with intent to defraud a specified person, was bad, unless it stated whose property the goods were, and the defect was not aided after verdict. R. v. Martin, 3 N. & P. 472; 8 Ad. & El. 481; S. P., R. v. Norton, 8 C. & P. 196.

By 14 & 15 Vict. c. 100, s. 8, it shall be sufficient, in an indictment for obtaining property by false pretences, to allege that the defendant did the act with intent to defraud, without alleging the intent of the defendant to be to defraud any particular person. By section 25, every objection to an indictment for any formal defect apparent on the face thereof shall be taken before the jury shall be sworn.

It was ruled that section 8 did not render it unnecessary, in an indictment for obtaining money by false pretences, to state whose property the money was, and that the omission was not a formal defect within section 25. Sill v. R, Dears. C. C. 132; 1 El. & Bl. 553. 24 & 25 Vict. c. 96, s. 88, renders an allegation of ownership unnecessary. See State v. Neimeier, 66 Iowa, 634, 1885.

2 Stoughton v. State, 2 Ohio St. 562, 1853. See supra, ?? 743, 1212.

3 Mack v. State, 63 Ala. 138, 1879;

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," has been held a sufficient averment that the goods were designedly obtained.' But there must be a specific averment of intent to defraud.2

§ 1227. The property must be distinctly averred to have been obtained by means of the pretence. But the process of reasoning by which the conclusion was reached is usually matter of argument, not of pleading. At the same time, there must always be something sufficient to show that the party defrauded was induced to part with his property by relying upon the truth of the alleged false statements. And it is not, as a general rule, as has been seen, enough to aver false state

Obtaining "by means " of pretence must be averred.

Stringer v. State, 13 Tex. App. 520, 1883; Com. v. Dunleay, 153 Mass. 330, 1891.

5

not follow from the premises. The only allegation of an intent to defraud is made argumentatively, and as a

1 Com. v. Hooper, 104 Mass. 549, legal inference from facts stated, and 1870. But see supra, ? 1210. that inference is unsound. Com. v. Whitney, 5 Gray, 85; R. v. Rushworth, R. & R. 317."

2 Com. v. Dean, 110 Mass. 64, 1872. In this case it was said by Morton, J.: "The indictment does not charge any offence with the precision requisite in criminal pleadings. There is no sufficient allegation that the defendant obtained the signature of Sears to the note with an intent to defraud. The intent to defraud is an essential element of the crime intended to be charged, and must be distinctly averred by a proper affirmative allegation, and not by way of inference or argument merely. Com. v. Lannan, 1 Allen, 590, 1861.

3

3 R. v. Kelleher, 14 Cox C. C. 48; 2 Ir. L. R. Q. B. D. 11; Ladd v. State, 17 Fla. 215, 1879; State v. Lewis, 26 Kans. 123, 1881; Pendry v. State, 18 Fla. 191, 1881; Cook v. State, 83 Ind. 402, 1882; Hightower v. State, 23 Tex. App. 451, 1887; State v. Conner, 110 Ind. 469, 1887; State v. Chapel, 117 Mo. 639, 1893.

* R. v. Hamilton, 9 Ad. & El. (N. S.) 271; Com. v. Hulbert, 12 Metc. 446, 1847; Com. v. Coe, 115 Mass. 481, 1874; Baker v. State, 14 Tex. App. 332, 1883. See supra, ? 1215.

It is said in Missouri that the phrase, "by color of said false pretence," is bad. State v. Chunn, 19 Mo. 233, 1853. See R. v. Airey, 2 East, 30.

"The concluding clause that 'so the jurors aforesaid, upon their oaths aforesaid, do say and present the said Dean' in the manner aforesaid, designedly, by a false pretence and with intent to defraud, obtained the signature of said Sears,' is a statement of a legal conclusion from the facts previously charged. The conclusion does 1845; Norris v. State, 25 Ohio St. 217,

5 State v. Philbrick, 31 Me. 401, 1850; Com. v. Strain, 10 Metc. 521,