ments as to the value of the 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.1

A delivery of the property must be averred, as the result of the false pretences, in all cases in which the prosecution rests upon such delivery.2

Obtaining from A.'s wife, on A.'s directions, supports an averment of obtaining from A.3 And so obtaining by an agent supports an averment of obtaining by the principal.*

§ 1228. Counts vary the pretences, and counts varying Varying the parties defrauded may be joined.5

1874; State v. Saunders, 63 Mo. 482, 1876. See Com. v. Parmenter, 121 Mass. 354, 1876; Epperson v. State, 42 Tex. 79, 1875; State v. Green, 7 Wis. 676, 1859; State v. Orvis, 13 Ind. 569, 1859; People v. Brown, 71 Mich. 296, 1888; State v. Stone, 75 Iowa, 215, 1888; State v. Jordan, (La.) 16 Rep. 333, 1882.

Where the representations are made to an agent the indictment must show his connection with person defrauded. Owens v. State, 83 Wis. 496, 1892; Jacobs v. State, 31 Nebr. 33, 1890.

In an averment that B. "was induced, by reason of the false pretences so made as aforesaid, to purchase and receive, and 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." Com. v. Hooper, 104 Mass. 549, 1870.

counts may be joined.

The allegation of “ a sale on credit" is supported by proof of a sale for a note payable in four months. Com. v. Davidson, 1 Cush. 33, 1848. Supra, 1180.

The indictment need not charge that any false token or counterfeit letter was used, even where false token or writing is alternatively used in the statute. Skiff v. People, 2 Parker C. R. 139, 1853. Supra, 1179. 2 State v. Philbrick, 31 Me. 401, 1850; Com. v. Strain, 10 Metc. 521, 1845; Com. v. Lannan, 1 Allen, 590, 1861; Com. v. Goddard, 4 Ibid. 312, 1862. See, also, Com. v. Jeffries, 7 Ibid. 549, 1863; Com. v. Lincoln, 11 Ibid. 233, 1865. Supra, ? 1180.

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. Com. v. Frey, 50 Pa. 245, 1865.

3 R. v. Moseley, L. & C. 92.

14. Attempts.

§ 1229. The general law as to attempts is elsewhere fully discussed. So far as concerns the particular offence now under consideration, one or two special points are to be noticed.

may be

By statute in England and in several of the United States, there may be a conviction of an attempt under indictment for By statute conviction the substantive offence, though at common law this is not had of at- permissible. 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.2

tempt under indictment for complete

offence.

may be

had irre

Conviction § 1230. In attempts, the question of prudence or imprudence of the prosecutor does not arise; and a convicspective of tion may be had where there was a fruitless attempt to obtain goods by a false pretence.3

prosecu

tor's prudence.

Attempt may be sustained where

§ 1231. The same distinction applies where only credit on account is shown to have been secured. It has been already seen that an indictment for the consummated offence cannot be sustained when only a credit on account was obtained. But under these circumstances, as is elsewhere more fully noticed, the defendant may be convicted of an attempt.5

only credit is obtained.

Question

§ 1232. It is for the jury to determine whether the attempt was really made. Thus, where C., being employed at a hosof attempt pital, wrote to the prosecutor, as manager, for a small is for jury. quantity of linen, not saying it was for the hospital, 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 the absence of such intention. § 1233. In an indictment for an attempt to obtain by a false

1 See supra, ?? 173 et seq.

2 R. v. Roebuck, Dears. & B. 24; 7 Cox C. C. 126; R. v. Ball, C. & M. 249; R. v. Hensler, 11 Cox C. C. 570; R. v. Francis, L. R. 2 C. C. 128; 12 Cox C. C. 612.

3 R. v. Roebuck, supra; R. v. Ball, supra. Supra, 199. Attempt to ob

6

written instrument, a variance as to character of the 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.' But the instrument need not, if correctly designated, be set out.2

Means of

§ 1234. 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 attempt and endeavor to obtain from B. a large sum of must be money (stating it) with intent to cheat and defraud B.3

averred.

15. Receiving Goods obtained by False Pretences. §1235. At common law, persons receiving goods knowing them to have been fraudulently obtained by false pretences will be indictable as accessories after the fact, if the goods so Receiving obtaining be a statutory felony; or, if participants in the obtained is 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.*

indictable.

3 R. v. Marsh, 1 Den. C. C. 505; T. & M. 192. Supra, ?? 190 et seq.

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

POINTS REQUESTED FOR THE DEFENCE IMPROPERLY
REFUSED, AND ERRONEOUS CHARGES.

Defendant was indicted for packing sand in a bale of cotton. The court charged the jury: "It matters not at what time the sand or dirt was put into the cotton, provided it was done by the defendant, and so done for the purpose and with the intent to defraud, and in a manner calculated to accomplish such purpose at the time." Held that this was a correct statement of the law, yet the charge was erroneous as commenting on the weight of the evidence. Jones v. State, 22 Tex. App. 680, 1887; supra, ? 1118.

It was proved that the defendant came to R., the prosecuting witness, asked him if he would like to have a job as night watchman at the R. R. depot, said he could give him the position; and on R. agreeing to take the place defendant asked him for $1.25 to send to headquarters. The court VOL. II.-8

113

charged the jury to acquit the defendant. Held error, as the statute does not require that the false pretence be a statement; it may be implied in the conduct. Com. v. Murphy, (Ky.) 27 S. W. Rep. 859, 1894; supra, ? 1142.

Plaintiff in buying a horse told defendant he wanted one which could go from M. to H., a distance of eight miles, in one hour. Defendant said the horse could easily do it. In an action for recovery of the purchase money the court charged the jury that if they believed that the representations alleged to have been made in relation to the speed of the horse were made, and that the plaintiff relying upon them purchased the horse, and that such representations were in fact not true and the horse was therefore unfit for the purpose for which it was bought, that the plaintiff could recover the purchase money, she having offered to return the horse, on the ground of fraud and deceit, which was independent and irrespective of the so-called warranty. Held error. State v. Cass, 52 N. J. L. 77, 1889.

making

ance is in

§ 1238. By the statute 13 Eliz., which makes void all conveyances, etc., with intent to defraud creditors, it is provided Under statthat the parties to any "such feigned, covinous, or fraud- ute Eliz. ulant feoffment, gift, grant, alienation, bargain, convey- fraudulent ance, bonds, suits, judgments, executions," etc., "which conveyat any time shall wittingly and willingly put in use, avow, dictable. maintain, justify, or defend the same, or any part of them as true, simple, and done, had, or made bonâ fide, and upon good considerations; or shall aliene or assign any the lands, tenements, goods, leases, or other things before mentioned, 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 statute 27 Eliz. the same provision is extended to those concerned in similar devices to defraud purchasers.1 Similar statutes have been adopted in several States of the American Union.

In a leading case reported under the statute of 13 Eliz.,2 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.3

1 See 2 Russ. on Cr. 315; Roberts's Dig. Crim. Law, art. 388; Ex parte Digest Brit. Stat. 294; 1 Chitty's Brett, L. R. 1 Ch. D. 151.

Stat. 385.

2

R. v. Smith, 6 Cox C. C. 31. As to the English statute on fraudulent bankruptcy, may be consulted Steph.

3 See, for form of indictment, Whart. Prec. 518. See, also, Com. v. Cronin, 41 Leg. Int. 145, 1884.