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statements of facts likely, under the particular circumstances of the case, to deceive.

pretence, fraudulently causes or in- Fay's Dig. 272; People v. Crissie, 4 duces any other person to: execute Denio, 525, 1847; People v. Galloway, any valuable security, or to write, 17 Wend. 540, 1837. But while obimpress, or affix his name, or the name taining goods by false pretences is of any other person,* upon any paper thus called larceny, its former characor parchment, in order that the same teristics are retained. may afterward be made or converted Under the Virginia statute an ininto, or used or dealt with as, a val- dictment for the offence may be either uable security.

in the form of indictment for larceny “ It is not an offence to obtain by at common law, or by charging the false pretences any chattel which is specific facts which the act declares not the subject of larceny at common shall be deemed larceny. Leftwich law, but it is immaterial whether such v. Com., 20 Gratt. 716, 1870.

chattel so obtained is or is not in By prior statute in Virginia, the existence at the time when the false merely giving a man's own draft on a pretence is made, if the thing, when banker in whose hands the drawer has made, is obtained by the false pre- no funds is no more than his bare tence.

assertion that the money will be paid. " It is not an offence to obtain credit Com. v. Speer, 2 Va. Cas. 65, 1817; in a partnership account by false pre- Ibid. 149, 151. tence as to the amount which a part- But an indictment was held good ner is entitled to charge against the which alleged the obtaining from the partnership funds.” To this is cited Bank of Virginia, by false pretence, of R. 0. Evans, L. & C. 252, 1862, of "fifty dollars in money, current in the which case Sir J. F. Stephen says he Commonwealth of Virginia, although is “unable to follow the reasoning of it was contended that, as the preamble this judgment.”

of the statute recited a pre-existing As to Maine, see State v. Mills, 17 evil, etc., as the cause of its enactment, Me. 211, 1840. In Connecticut the it could not extend to banks which did statute (title 21, 2 114, ed. 1835) em- not exist in Virginia until many years braces the provisions of 33 Hen. VIII., after the date of the statute. Com. v. 32 Geo. II. and 52 Geo. III.; and the Swinney, 1 Va. Cas. 150, 151, 1806. English decisions are there adopted. See, also, State v. Patillo, 4 Hawks, State v. Rowley, 12 Conn. 101, 1837. 348, 1826.

By the N. Y. Penal Code of 1882, In Vermont, under a statute limited (541, larceny, embezzlement, and ob- to false tokens, it was held that fraudtaining goods by false pretences are ulent and false representations of a made a common offence, under the man's property and resources were not title of larceny. (See supra, 7% 888, indictable; the language of the statute 1009, 1029.) For prior statutes, see being narrower than that of 30 Geo.

? Make, accept, indorse, or destroy the whole or the seal of any body corporate, company, or any part of

or society. 4 Or of any company, firm, or copartnership,

1

Supra, l 1126-1127; infra, 2 1186. For English statutes, see 2 Russ. on Cr. (9th Am. ed.) 619 et seq.

Statutes

Before proceeding to an analytical examination of the constituent elements of the statutes, it may not be out of place to notice some of their general features, as judicially settled. § 1131. In the first case reported on the subject,' Lord Kenyon

said: “This indictment being founded on the statute 30 are to be Geo. II. c. 24, is different from a common law indictconstrued in accord- ment.

When it passed, it was considered to extend to ance with

every case where a party had obtained money by falsely object.

representing himself to be in a situation in which he was not, or any occurrence which had not happened, to which persons of ordinary caution might give credit. The statute of the 33 Hen. VIII. c. 1, requires a false seal or token to be used to bring the person imposed upon into the confidence of the other; but that being found to be insufficient, the statute 30 Geo. II. c. 24, introduced another offence, describing it in terms exceedingly general. It seems difficult to draw the line, and to say to what cases the statute shall extend, and therefore we must see whether each particular case as it arises comes within it. In the present case, four men came to the prosecutor, representing a race as about to take place; that William Lewis should go to a certain distance within a limited time; that they betted on the event, and they should probably win; he was perhaps too credulous, and gave confidence to them, and advanced his money; and afterward the whole story proved to be an absolute fiction. Then the defendants, morally speaking, have been guilty of an offence. I admit there are certain singularities which are not the subject of criminal law. But when the criminal law happens to be auxiliary to the law of morality, I do

II. State v. Sumner, 10 Vt. 587, 1838. slave, did falsely, etc., cheat and deSubsequently, however, the statute fraud one A., by selling said mulatto was amended by introducing the to him for a slave, when said mulatto words“ false pretences.”

was free. State v. Wilson, Rep. Con. The statute 33 Hen. VIII. has been Ct. 135. But it is swindling, within recognized in New York, 12 Johns, the purview of this statute, to obtain 293, 1815; 9 Wend. 188, 1832; in horses from an ignorant man, by Massachusetts, Com. v. Warren, 6 threats of a criminal prosecution, and Mass. 72, 1809; though not in Penn- also by threats of his life. State v. sylvania, Resp. v. Powell, 1 Dall. 47, Vaughan, 1 Bay, 282, 1791. The 1780.

same rule, however, does not apply Under the South Carolina Act of when a blind horse is sold as a sound 1791, an indictment was held bad one. State v. Delyon, 1 Bay, 353, which merely alleged that the defen- 1791; Code, 1849 ; c. 192, & 30. dant falsely, fraudulently, etc., pre- | Young v. R., 3 T. R. 98, 1789. tending that a certain mulatto was a

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not fed any inclination to explain it away. Now this offence is within the words of the act, for the defendants have by false pretences fraudulently contrived to obtain money from the prosecutor, and I see no reason why it should not be held to be within the meaning of the statute." Ashurst, J., said: “The statute 30 Geo. II. c. 24, created an offence which did not exist before, and I think it includes the present. The legislature saw that all men were not equally prudent, and this statute was passed to protect the weaker part of mankind.” Buller, J., remarked : “ The ingredients of this offence are the obtaining money by false pretences and with intent to defraud. Barely asking another for a sum of money is not sufficient, but some pretence must be used, and that pretence false ; and the intent is necessary to constitute the crime. If the intent be made out, and the false pretence used in order to effect it, it brings the case within the statute.'

$ 1132. In an early case on the New York statute, Walworth, Chancellor, when commenting in the Court of Errors on the law as above laid down, said: “I am aware from numerous cases which have come under my notice, judicially and otherwise, that the rule of morality established by the decisions under these statutes, and by the common law of Scotland, has been deemed too strict for those who, in 1825 and subsequently, have been engaged in defrauding widows and orphans, and the honest and unsuspecting part of the community, by inducing them to invest their little all, which, in many instances, was their only dependence for the wants and infirmities of age, in the purchase of certain stocks of incorporated companies, which the vendors fraudulently represented as sound and productive, although they at the time knew the institutions to be insolvent, and their stock perfectly wortbless. But I am yet to learn that a law which punishes a man for obtaining the property of his unsuspecting neighbor by means of any wilful misrepresentation or deliberate falsehood, with intent to defraud him of the same, is establishing a rule of morality which will be deemed too rigid for the respectable merchants and other fair business men of the city of New York, or any other part of the State. Neither do I believe that any honest man will be in danger of becoming a tenant of the State prison if the statute against obtaining money, or

See, also, the interesting and well- Pennsylvania in which the law was digested opinion of Recorder Vaux, settled. Recorder's Decisions, 47, 75. in Hutchinson and Turner's Cases, People v. Haynes, 14 Wend. 546, which are, in fact, the first instances in 1835.

other things of value, by false and fraudulent pretences, is carried into full effect, according to the principles of the decisions to which I have referred. But it may indeed limit and restrain the fraudulent speculations and acts of some, whose principles of moral honesty are regulated solely by the denunciations of the penal code. The law on this point, as laid down by the Supreme Court in this and numerous other cases, is unquestionably the settled law of the land, in conformity with both the spirit and the intent of a positive legislative enactment.”

$ 1133. “ It should be remembered, however," to quote from a judge whose opinions on criminal jurisprudence are entitled to peculiar weight," that the term 'false pretence' is of great latitude, and may be made to embrace any and every false representation made by a party fraudulently obtaining property from another which a prosecutor will swear has induced him to part with such property. Is this act to have a range so wide and sweeping as this, or is it to be limited in its operation ? and in what does such limitation consist? Although in ethics every misrepresentation is morally wrong, yet if so severe a standard of conduct is to be introduced into our criminal code, it is plainly to be seen that breach of contract and crime will be scarcely divided by an appreciable line, and that criminal tribunals will hereafter be employed in punishing infamously acts which have heretofore been understood as only creating civil liabilities. A rule of such extreme urgency might, in some instances, justly chastise a bad man; but it could not fail to be terribly abused by exasperated or reckless creditors, smarting under losses, and stimulated by the fierce spirit of revenge, for wrongs supposed or real.”’l

$ 1134. To the same effect remarks Rogers, J., of the Supreme Court of Pennsylvania, in a case of malicious prosecution : “The act is intended to punish a criminal offence, not to be used as a means of collecting debts, however just; and to suffer it to be perverted for that purpose will necessarily lead to great injustice and oppression. We are not without reason for believing that it has been already used as an instrument to wring money from the sympathy and fear of friends, as well as a means of extortion, from the timid on pretended demands. A stranger from another or distant State may or has been compelled to pay unjust, or at least contested demands, rather than encounter the risk, expenses, and mortification

1

King, J., Com. v. Hutchinson, 2 Pars. 309; 2 Penn. L. J. 242, 1843.

of attending a prosecution for fraud, knowing that the charge may be supported by the oath of the prosecutor himself. When, therefore, we find that the creditor, instead of pursuing the supposed criminal to judgment, stops short on receiving the amount of his demand, and discharges the accused from any other proceeding, what is the rational inference? What are we to conclude but that his design was to collect his debt, rather than punish the offender in promotion (violation ?) of the very object and intention of the act."1

A false pretence, under the statute, is such a designed Definition. misrepresentation of an existing condition as induces the party to whom it is made to part with his property.

fendant was a per

wealth
and credit

statute.

2. Character of the Pretences. § 1135. Hence the rule may be broadly stated, that any designed misrepresentation of an existing condition, by which a party obtains goods of another, is a false pretence under Pretence the statute.?

Whether or not the pretence that the defendant is a son of man of wealth and credit is enough to support an indictment is a question which does not appear in England to is within have received an express decision; though a case already cited certainly goes a great way to establish the affirmative doctrine. In an early New York case, 4 it was held that fraudulently obtaining goods on such a pretence is indictable. And the same was held in a later case, where the defendant represented himself to be in successful business as a merchant in Boston worth from $9000 to $10,000 over and above all his debts; and, to give weight to this assertion, represented that he had never had a note protested in his life, and had then no indorsers; the truth appearing in evidence that he was at the time wholly insolvent. And it may be

1 Prough v. Entriken, 11 Pa. 84, 1841. See Pasley v. Freeman, 3 T. R. 1849-Rogers, J.

51, 1789. : See Com. v. Drew, 19 Pick. 179, * People v. Conger, 1 Wheel. Cr. 1837; State v. Phifer, 65 N. C. 321, Cas. 449, 1813; approved by Nelson 1871. As to distinction between false J., in People v. Haynes, infra. pretences and larceny, see Zink v. Peo- 6 People v. Haynes, 11 Wend. 565, ple, 77 N. Y. 114, 1879.

1834. • R. v. Henderson, 11 C. & M. 328,

6 Ibid.

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