pretences, and that the same rule applies to a married woman passing herself off as unmarried, or the converse.' So that had cer tain claims § 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 13s. 9d. was due by him to the society for fines incurred by him against 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 4 prosecutor. So that the could set tle a prose § 1151. To extort money by a false statement of an existing prosecution is within the statute. Thus it was held a false pretence to extort money by pretending falsely to the defendant prosecutor that his daughter had committed a public offence, that a warrant had been issued for her, and that the defendant had come with the warrant. But it has been said to be otherwise when the payment is made to illegally compound the offence." 1 There are, indeed, no direct adjudications on these points, but the following is on the same principle: cution falsely pretended to be pending against prosecutor. that the annuity covenanted to be paid by the husband was duly paid, and that the house which she gave as her address, and which was found shut up after the goods had been sent to it, had been taken by her whilst in company with a man with whom she had been living as his wife from the middle of July till the end of August. An indictment charged that the prisoner was living separately from her husband, and receiving an income from him for her separate maintenance under a deed of separation, which stipulated that he should not be liable 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, ¿ 1148. her husband, and that he was willing to pay for them; and that she wanted them to furnish a house in his occupation. It was proved that on the 4th of August she called at W.'s shop, and on being served by U., selected certain goods, and being asked for a deposit, said it was a cash transaction, that her husband would give a cheque as soon as the goods were delivered. The deed was proved, and it was also shown 2 R. v. Cooke, L. R. 1 C. C. 295; 12 Cox C. C. 10; R. v. Leonard, 3 Ibid. 284; R. v. Bull, 13 Ibid. 608. 3 R. v. Wooley, 1 Den. C C. 559; 4 Cox C. C. 193. See R. v. Byrne, 10 Ibid. 369. See Perkins v. State, 67 Ind. 270, • & And so of assumption that § 1152. The unauthorized assumption of the dress of an Oxford student, thereby obtaining money, is a false pretence under the statute.' And so of the assertions that the dedefendant fendant was a clergyman of standing, or an officer of the dragoons, or an officer of a charitable institution.* At the same time it should be remembered that there must be in such case an intent to defraud; and that no indictment will hold for a misstatement based on an honest mistake of law." was an or "clergy- § 1153. An indictment, it has been ruled in New York, will not lie when the money is parted with as a charitable donaFalse begging letters tion, although the pretences moving the gift are false and may be within fraudulent; and a statute was passed to cover the supposed statute. 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 value, to make it an indictable false pretence would bring almost every sale within the statute, for there are few sales about which there is not some affirmation, either express or implied, that is not exactly true. Some features must be specified, therefore, which distinguish the mere puff from A false pretence to be distinguished from a puff. 1 Infra, & 1170. 2 Thomas v. People, 34 N. Y. 351, 1866; Bowler v. State, 41 Miss. 570, 1867. 3 Hamilton v. Queen, 9 Ad. & El. (N.S.) 271. See R. v. Jennison, 9 Cox C. C. 158; L. & C. C. C. 157; People v. Cooke, 6 Parker C. R. 31, 1864. 8 5 Beattie v. Lord Ebury, L. R. 7 Ch. App. 777. People v. Clough, 17 Wend. 351, 1837; and see explanations in McCord v. People, 46 N. Y. 470, 1871. 7 Com. v. Whitcomb, 107 Mass. 486, 1871; R. v. Jones, 14 Jur. 533; 1 Eng. Law & Eq. 533; T. & M. 270; 4 Cox C. C. 198; R. v. Hensler, 11 Ibid. 570. So, also, a threatening letter. People v. Tonielli, 81 Cal. 275, 1889. See, to same effect, Strong v. State, 86 Ind. 208, 1882; State v. Matthews, 91 N. C. 635, 1884. * Com. v. Howe, 132 Mass. 250, 1882. An indictment for falsely impersonating an officer should allege that defendant undertook to act as such. People v. Cronin, 80 Mich. 646, 1890; U. S. v. Curtain, 43 Fed. Rep. 433, 1890. It should appear that property was delivered to defendant under idea that he was the person falsely 1868; People v. Morphy, 100 Cal. 84, personated. Goodson v. State, 29 Fla. 1893. 511, 1892. 8 See State v. Estes, 46 Me. 150, 1858; State v. Webb, 26 Iowa, 262, the false pretence.1 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.3 Mere exag gerated § 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 right," is a puff which is not indictable; but the statute applies where the defendant makes a specific false statement as to soundness; and when he falsely pretends to the 1 See infra, ? 1193. Nor is a mere statement of opinion indictable. State v. Daniel, (N. C.) 19 S. E. Rep. 100, 1894. * People v. Crissie, 4 Denio, 525, 1847; State v. Lambeth, 80 N. C. 393, 1879; State v. Hefner, 84 Ibid. 751, 1881; State v. Webb, 26 Iowa, 262, 1868. As to "brag" and loose talk, see infra, 1170. praise not tence. prose adopt an illustration of Merkel, for a series of years announced "Washington's nurse" as among his curiosities on exhibition, and the part was personated by an old negress named Joyce Heth. She was not really Washington's nurse, and a person paying money to see her, if he paid money for nothing else, paid money without a true equivalent. But was the money * R. v. Ridgway, 3 F. & F. 838. truly paid for seeing Washington's Infra, & 1159. People v. Jacobs, 35 Mich. 36, 1876; State v. Holmes, 82 N. C. 607, 1880; State v. Case, (N. J.) 18 Atl. Rep. 972, 1889. Infra, 1193. Illusiveness has been laid down as the test of the falsity of the pretence. Is the thing offered, by means of which the deceit operates, illusory? If it be an equivalent to the thing obtained, and if it be that which the party taking it practically calls for, then an indictment cannot be sustained. Cases, also, may happen when proof of a real equivalent obtained will work an acquittal, though the equivalent named would be illusory. Thus Barnum, to nurse? Was it not really paid for the excitement of the show, with a consciousness that each particular item in the show-the "nurse," the mermaid, the woolly horse-might be a deception? If so, though the particular items were illusory, there was a real equivalent, and no indictment could be sustained for obtaining the admission money on false pretences. 5 R. v. Keighley, Dears. & B. C. C. 145; Watson v. People, 87 N. Y. 561; 26 Hun, 76, 1882; State v. Lambeth, 80 N. C. 393, 1879. But see State v. Holmes, 82 Ibid. 607, 1880. Cf. other cases cited infra, & 1160. 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.2 But otherwise as to false sam ple. § 1156. But while it is not indictable to say of a particular article 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.* Opinions are not § 1157. As to false quality, more difficult questions arise.5 In an English case, the prisoner induced a pawnbroker to 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 1 State v. Mills, 17 Me. 211, 1840. 2 In re Greenough, 31 Vt. 279, 1858. See infra, 1192. 3 Cowles v. State, 50 Ala. 454, 1874. R. v. Abbott, 2 C. & K. 630; 1 Den. C. C. 273; R. v. Goss, 8 Cox C. C. 262; Bell C. C. 208. 5 As to value, see R. v. Williamson, 11 Cox C. C. 328; Wallace v. State, 11 Lea, 542, 1883. 6 R. v. Bryan, 40 Eng. Law & Eq. 589; Dears. & B. C. C. 265; 7 Cox C. C. 312. 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.3 But a mere opinion or estimate, given as conjectural, is not a false pretence.1 But use of is within statute. § 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. 6 specific § 1159. On the question of false weight, we again encounter the distinction already noticed. If a man, selling an article Falsestateby weight, falsely represent the weight to be greater than ment as to it is, and thereby obtain payment for a quantity greater 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 1 R. v. Lee, 8 Cox C. C. 233. 2 R. v. Suter, 10 Cox C. C. 577; R. v. Roebuck, 36 Eng. Law & Eq. 631; D. & B. 24; 7 Cox C. C. 126; and see R. v. Ball, C. & M. 249. weight is within the statute. knew they were not, he would have been rightly convicted; and in R. v. Suter, supra, where the jury had found that the prisoner represented a chain 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, v. Foster, 13 Cox C. C. 393. * Scott v. People, 62 Barb. 62, 1872. * R. v. Suter, 10 Cox C. C. 577—C. C. R. See supra, ?? 1116 et seq. In R. v. Ardley, L. R. 1 C. C. 301, 40 L. J. M. C. 85, it was noticed that if the defendant in R. v. Bryan had represented the spoons as being in fact Elkington's manufacture when he VOL. II.-5 he was held rightly convicted. Roscoe's Crim. Ev. p. 487. |