Gambar halaman

So that

pretences, and that the same rule applies to a married woman passing herself off as unmarried, or the converse.'

§ 1150. It has been frequently held that to present a false claim of indebtedness may be a false pretence. Thus, where the secretary of an Odd Fellows' Society falsely pre- defendant tended to a member of the society that the sum of 138. 9d. tain claims was due by him to the society for fines incurred by him against

prosecutor. as a member, by means of which such secretary fraudulently obtained from him such sum of money, it was held to be a false pretence within the statute 7 & 8 Geo. IV. c. 29.3

$ 1151. To extort money by a false statement of an existing prosecution is within the statute. Thus it was held a

So that the false pretence to extort money by pretending falsely to the defendant prosecutor that his daughter had committed a public tle a proseoffence, that a warrant had been issued for her, and that cution

falsely prethe defendant had come with the warrant." But it has tended to

be pending been said to be otherwise when the payment is made to against illegally compound the offence.


" There are, indeed, no direct adju- that the annuity covenanted to be dications on these points, but the fol- paid by the husband was duly paid, lowing is on the same principle: and that the house which she gave as

An indictment charged that the her address, and which was found prisoner was living separately from shut up after the goods had been sent her husband, and receiving an income to it, had been taken by her whilst in from him for her separate maintenance company with a man with whom she under a deed of separation, which had been living as his wife from the stipulated that he should not be liable middle of July till the end of August. for her debts; and that she falsely It was held that there was sufficient pretended to U., a servant of W., that evidence to support a conviction. R. she was living under the protection of v. Davis, 11 Cox C. C. 181–C. C. R. her husband, and was authorized to 1868. Supra, & 71. See, also, R. v. apply to W. for goods on the credit of Jennison, supra, g 1148. her husband, and that he was willing ? R. v. Cooke, L. R. 1 C. C. 295; 12 to pay for them; and that she wanted Cox C. C. 10; R. v. Leonard, 3 Ibid. them to furnish a house in his occupa- 284; R. v. Bull, 13 Ibid. 608. tion. It was proved that on the 4th 3 R. v. Wooley, 1 Den. C C. 559; of August she called at W.'s shop, and 4 Cox C. C. 193. See R. v. Byrne, 10 on being served by U., selected certain Ibid. 369. goods, and being asked for a deposit, * See Perkins v. State, 67 Ind. 270, said it was a cash transaction, that 1879; and see infra, 2 1189, note. her husband would give a cheque as 5 Com. v. Henry, 22 Pa. 253, 1853. soon as the goods were delivered. The Infra, 7% 1164–5. deed was proved, and it was also shown 6 Infra, & 1189, sed quære.

tion that

was an

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§ 1152. The unauthorized assumption of the dress of an Oxford

student, thereby obtaining money, is a false pretence And so of assump

under the statute. And so of the assertions that the dedefendant fendant was a clergyman of standing, or an officer of the “ Oxford

dragoons, or an officer of a charitable institution. At student." the same time it should be remembered that there must or “clergyman," or be in such case an intent to defraud; and that no indictofficer.”

ment will hold for a misstatement based on an honest mistake of law.

§ 1153. An indictment, it has been ruled in New York, will not False beg

lie when the money is parted with as a charitable donaging letters tion, although the pretences moving the gift are false and within

fraudulent; and a statute was passed to cover the supposed

deficiency. In Massachusetts and England a sounder view has been taken, it having been there expressly held that a begging letter, making false representations as to the condition and character of the writer, by means of which money is obtained, is a false pretence under the statute.?

§ 1154. Assuming a “puff” to mean a loose exaggeration of A false value, to make it an indictable false pretence would bring pretence to

almost every sale within the statute, for there are few guished sales about which there is not some affirmation, either exfrom a puff. press or implied, that is not exactly true. Some features must be specified, therefore, which distinguish the mere puff from

may be


be distin



Infra, & 1170.

5 Beattie v. Lord Ebury, L. R. 7 2 Thomas v. People, 34 N. Y. 351, Ch. App. 777. 1866; Bowler v. State, 41 Miss. 570, 6 People v. Clough, 17 Wend. 351, 1867.

1837; and see explanations in McCord 3 Hamilton v. Queen, 9 Ad. & El. v. People, 46 N. Y. 470, 1871. (N. S.) 271. See R. v, Jennison, 9 Cox Com. v. Whitcomb, 107 Mass. 486, C. C. 158; L. & C. C. C. 157; People 1871 ; R. v. Jones, 14 Jur. 533; 1 Eng. v. Cooke, 6 Parker C. R. 31, 1864. Law & Eq. 533; T. & M. 270; 4 Cox

4 Com. v. Howe, 132 Mass. 250, C. C. 198; R. v. Hensler, 11 Ibid. 570. 1882. An indictment for falsely im- So, also, a threatening letter. People personating an officer should allege v. Tonielli, 81 Cal. 27 1889. See, to that defendant undertook to act as same effect, Strong v. State, 86 Ind. such. People v. Cronin, 80 Mich. 646, 208, 1882; State v. Matthews, 91 N. 1890; U. S. v. Curtain, 43 Fed. Rep. C. 635, 1884. 433; 1890. It should appear that

8 See State v. Estes, 46 Me. 150, erty was delivered to defendant under 1858; State v. Webb, 26 Iowa, 262, idea that he was the person falsely 1868; People v. Morphy, 100 Cal. 84, personated. Goodson v. State, 29 Fla. 1893. 511, 1892.


the false pretence. And the first to be here noticed is that the puff is a general estimate, loosely given as a matter of opinion for which there may be probable grounds, whereas a false pretence is a false statement of a fact known to be false. Thus it is a mere puff, and not indictable, to say of a flock, “This is a first-rate flock;" but to say that a certain lameness, observed by a purchaser, is not disease, but the result of an accident, which statement the defendant knows to be untrue, is a false pretence. So it is a mere puff, and not indictable, to say lumpingly of an article in gross that it is of a certain weight; but to pretend to have weighed it, and to have found it to be of a particular weight greater than it actually is, is a false pretence.

§ 1155. We may therefore hold generally that mere exaggerated praise is not a false pretence. Thus to say of a horse that he is a “ first-class animal," or "a fine trotter," or "is all gerated

praise not right,” is a puff which is not indictable ;- but the statute a false preapplies where the defendant makes a specific false statement as to soundness; and when he falsely pretends to the prose

Mere exag


See infra, & 1193. Nor is a mere adopt an illustration of Merkel, for a statement of opinion indictable. State series of years announced " Washingr. Daniel, (N. C.) 19 S. E. Rep. 100, ton's nurse as among his curiosities 1894.

on exhibition, and the part was peri People v. Crissie, 4 Denio, 525, sonated by an old negress named Joyce 1847 ; State v. Lambeth, 80 N. C. 393, Heth. She was not really Washing1879; State v. Hefner, 84 Ibid. 751, ton's nurse, and a person paying 1881 ; State v. Webb, 26 Iowa, 262, money to see her, if he paid money 1868. As to “brag” and loose talk, for nothing else, paid money without see infra, & 1170.

a true equivalent. But was the money * R. v. Ridgway, 3 F. & F. 838. truly paid for seeing Washington's Infra, 2 1159.

nurse? Was it not really paid for * People v. Jacobs, 35 Mich. 36, the excitement of the show, with a 1876; State v. Holmes, 82 N. C. 607, consciousness that each particularitem 1880; State v. Case, (N. J.) 18 Atl. in the show-the "nurse," the merRep. 972, 1889. Infra, & 1193. maid, the woolly horse--might be a

IUusireness has been laid down as deception ? If so, though the parthe test of the falsity of the pretence. ticular items were illusory, there was Is the thing offered, by means of which a real equivalent, and no indictment the deceit operates, illusory? If it be could be sustained for obtaining the an equivalent to the thing obtained, admission money on false pretences. and if it be that which the party 5 R. v. Keighley, Dears. & B. C. C. taking it practically calls for, then 145; Watson v. People, 87 N. Y. 561 ; an indictment cannot be sustained. 26 Hun, 76, 1882; State v. Lambeth, Cases, also, may happen when proof of a 80 N. C. 393, 1879. But see State v. real equivalent obtained will work an Holmes, 82 Ibid. 607, 1880. Cf. other acquittal, though the equivalent named cases cited infra, & 1160. would be illusory. Thus Barnum, to

But otherwise as to false sample.

cutor that a certain horse is the famous horse “ Charley,” which it is not. And it is a mere "puff" to say of a mixture that it is “good,” or “first-class ;" but it is an indictable false pretence to declare falsely that it is a non-explosive burning fluid.? § 1156. But while it is not indictable to say of a particular arti

cle that it is “good;" to sell it by a false sample is indictable. Thus, A. bought cheese of B. at a fair, and paid for it. Before he bought it, B., offering cheese for sale

there, bored two of the cheeses with an iron scoop, and produced a piece of cheese, called a taster, at the end of the scoop, for A. to taste; he did so, believing it to have been taken from the cheese, but it had not, and was from a superior kind of cheese, and fraudulently put by B. into the scoop, the cheese bought by A. being very inferior to it. It was held that B. was indictable for obtaining the price of the cheese from A. by false pretences.* $ 1157. As to false quality, more difficult questions arise. In

an English case, the prisoner induced a pawnbroker to Opinions

advance him money on some spoons, which he represented always

as silver-plated spoons, which had as much silver on them pretences.

as “Elkington's A.” (a known class of plated spoon), and that the foundations were of the best material. The spoons were plated with silver, but were, to the prisoner's knowledge, of very inferior quality, and not worth the money advanced on them. It was held by the court (Willes, J., dissenting, and Bramwell, B., doubting) that obtaining the money by the false representation as to the quality of the spoons was not an indictable offence within the statute against false pretences, as the article the prisoner delivered to the pawnbroker was the same in specie as he had professed it to be, though of inferior quality to what he had stated. This decision may be justified on the ground that the statement as to

Elkington's A.” was regarded on both sides as only a conjectural estimate, and that "best" material is a term which might be interpreted in several ways. Much less defensible is a decision by Chambers, C. S., that pretending a chain to be gold, when in fact it was

are not

State v. Mills, 17 Me. 211, 1840. As to value, see R. v. Williamson, ? In re Greenough, 31 Vt. 279, 1858. 11 Cox C. C. 328; Wallace v. State, 11 See infra, % 1192.

Lea, 542, 1883. 3 Cowles v. State, 50 Ala. 454, 1874. 6 R. v. Bryan, 40 Eng. Law & Eq.

* R. v. Abbott, 2 C. & K. 630; 1 589; Dears. & B. C. C. 265; 7 Cox C. Den. C. C. 273; R. v. Goss, 8 Cox C. C. 312. C. 262; Bell C. C. 208.

But use of

is within statute.

only a cheap amalgam, is not within the statute. This, however, is now practically overruled. And it is now settled that selling with a false affirmation of quality may be a false pretence. But a mere opinion or estimate, given as conjectural, is not a false pretence.

§ 1158. The use of a false brand or trade-mark is indictable. Thus, a false representation that a stamp on a watch was the hall-mark of the Goldsmith's Company, and that the false brand number 18, part thereof, indicated that the watch was made of 18-carat gold, is within the statute, and is not the less so because accompanied by a representation that the watch was a gold one, and some gold was proved to have been contained in its composition.”

The same conclusion was reached in a case already noticed where the evidence was that B. was in the habit of selling baking powders, wrapped in printed wrappers entitled “ B.'s Baking Powders,” and having his printed signature at the end, and the prisoner had printed a quantity of wrappers in imitation of those of B., only leaving out B.'s signature, and sold spurious powders wrapped up in these labels as B.'s powders.

$ 1159. On the question of false weight, we again encounter the distinction already noticed. If a man, selling an article by weight, falsely represent the weight to be greater than ment as to it is, and thereby obtain payment for a quantity greater weight is

specific than that delivered, he is indictable for obtaining money by false pretences. It is otherwise, however, if he is selling the article for a lump sum, and merely makes the false repre


within the statute.

1 R. v. Lee, 8 Cox C. C. 233. knew they were not, he would have

? R. v. Suter, 10 Cox C. C. 577 ; R. been rightly convicted; and in R. v. 7. Roebuck, 36 Eng. Law & Eq. 631 ; Suter, supra, where the jury had found D. & B. 24; 7 Cox C. C. 126 ; and see that the prisoner represented a chain R. o. Ball, C. & M. 249.

as in fact 18-carat gold, when he knew * R. v. Ardley, L. R. 1 C. C. 301 ; R. in fact that it was nothing of the sort, t. Foster, 13 Cox C. C. 393.

he was held rightly convicted. Ros* Scott v. People, 62 Barb. 62, 1872. coe's Crim. Ev. p. 487.

* R. v. Suter, 10 Cox C. C.577-C. * R. v. Smith, Dears. & B. C. C. C. R. See supra, 8% 1116 et seq. 566 ; 8 Cox C. C. 32; 4 Jur. (N. S.)

In R. v. Ardley, L. R. 1 C. C. 301, 1003 ; see supra, 2 690. 40 L. J. M. C. 85, it was noticed that 7 R. v. Goss, 8 Cox C. C. 262; Bell if the defendant in R. v. Bryan had C. C. 208; R. v. Ragg, Ibid. 214; 8 represented the spoons as being in Cox C. C. 262; R. v. Kerrigan, L. & fact Elkington's manufacture when he C. 383; 9 Cox C. C. 441. VOL, II.-5


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