to believe that it would be paid, or that he had the funds to pay it; he was held to be properly convicted.'

§ 1164. As the person who advances money or goods on a forged cheque parts absolutely with his property in the thing passed, it is not larceny but false pretences so to obtain Obtaining money or goods."

money by forged paper not

larceny

but false

Such has been held to be the law in a case where a servant, who had authority to buy goods, and was to be repaid pretences. on producing a ticket containing a statement of the purchase, produced such a ticket, and obtained the amount stated therein, no purchase having been in fact made.3

Cases, however, can be readily conceived where the defendant brings the order ostensibly for a third person, in which, as only possession of the money or goods is passed to the defendant by the prosecutor, the defendant is guilty of larceny, if he fraudulently appropriate the property.*

It may happen, however, that where forgery is a felony, and false pretences a misdemeanor, the latter, when the two coalesce, may merge at common law in the former.5

False

govern

§ 1164 a. By the Revised Statutes of the United States claims to (§ 5438), it is made an indictable offence to present a ment a false claim to the government, knowing it to be false.o

3. Falsity of the Pretences.

statutory offence.

§ 1165. It is generally impossible to prove an absolute negative, and it is sufficient, therefore, for the prosecution to ap- Only proximate, as far as is in its power, to such negative, strong leaving it to the defendant, if he can, to break this down ity of falsby proving the affirmative fact. This may be illustrated shown.

1 R. v. Parker, 7 C. & P. 825; 2 Mood. C. C. 1. See infra, ? 1174. That passing half a bank note may be a false pretence, see R. v. Murphy, 13 Cox C. C. 298.

* R. v. Prince, L. R. 1 C. C. 150; 11 Cox C. C. 193; so as to obtaining goods by forged or flash notes or coin; R. v. Coulson, T. & M. 332; 1 Den. C. C. 592; 4 Cox C. C. 227; R. v. Byrne, 10 Ibid. 369; Com. v. Hulbert, 12 Metc. 446, 1847; Com. v. Stone, 4 Metc. 43, 1842; Com. v. Nason, 9 Gray, 125, 1857; Tyler v. State, 2

probabil

ity need be

by cases where the note of a broken bank is passed. The prosecution must, as has been seen,1 prove that the bank is broken; and if it appear that, though the bank has stopped, there are still solvent parties who are liable for its paper, there can be no conviction on a count alleging the note to be worthless. Yet where the pretence is that a note is worth its nominal value, or that it is good, it is not necessary for the prosecution, where the bank is insolvent, to negative every possibility of payment by showing that all the stockholders of the bank had paid in their stock.3

The same position, i. e., that proximate proof is enough, was reached where the allegation was that B. obtained twenty yards of carpet by falsely pretending that "a certain person who lived in a large house down the street, and had had a daughter married some time back, had been at him about some carpet, and had asked him to procure a piece of carpet, whereas no such person had been at him about any carpet, or had any such person asked him to procure any piece of carpet." The evidence was that B. obtained twenty yards of carpet by stating to the prosecutor, who was a shopkeeper in a village, that he wanted some carpeting for a family living in a large house in the village, who had had a daughter lately married; that B. afterward sold the carpeting so obtained to two different persons, and a lady was called, who lived in the village, whose daughter was married about a year previously, and who stated that she had not sent B. to the prosecutor's shop for the carpet. It was held, that there was a sufficient false pretence proved and negatived, and the case of the prosecution was made out. And where a postman falsely pretended that the sum of 2s. was payable

at interest, on the security of a bill of and that he had sold a good business sale on furniture, a promissory note of for a certain large sum, whereas the C. and another person, and a declara- business was worthless, and he had tion made by C. that the furniture been bankrupt, it was ruled that the was unincumbered. The declaration indictment could not be sustained was untrue at the time it was handed upon either of the representations. to P., C. having, a few hours before, R. v. Williamson, 21 L. T. (N. S.) given a bill of sale for the furniture 444-Byles. to another person, but not to its full value. It was held that there was evidence to support the prosecution. R. v. Meakin, 11 Cox C. C. 270.

But where it appeared that C., on engaging an assistant from whom he received a deposit, represented to him that he was doing a good business,

1 See supra, 1162.

2 R. v. Spencer, 3 C. & P. 420; R. v. Evans, Bell C. C. 187; 8 Cox C. C. 257.

3 Com. v. Stone, 4 Metc. 43, 1842. R. v. Burnsides, Bell C. C. 282; 8 Cox C. C. 370.

on a post letter, intrusted to him for delivery, whereas 18. only was payable, it was held that the offence was complete when he made the pretence, and that the absence of any evidence to show positively that he did not pay over the extra 18. to the superior officer was immaterial to his guilt or innocence.1 That the defendant knew the statement to be false, is also to be inferentially shown.2

cution.

§ 1166. The burden of approximating a negative is on the prosecution, though when this is done, any matter peculiarly Burden of within the defendant's knowledge is to be supplied by the negative is defence. In other words, while the prosecution must on prosemake out all the elements of its case, this is to be done inferentially as closely as possible; and when a reasonable certainty is reached, it is for the defendant to produce the affirmative proof requisite to break down the prosecution's approximate negative.* Thus, in a Mississippi case, it was correctly held error, on an indictment against a person for pretending to be a Baptist minister in good standing, to charge the jury "that if the accused made the false representations as stated, and thereby obtained the money, they will find him guilty, unless the accused has shown the truth of these representations." Yet it would have been sound law to have told the jury, that if, from the evidence of the prosecution, it was to be inferred with reasonable certainty that the defendant was not a Baptist minister, the burden was on him, by producing his license, or proving his authority, to show that he was what he thus pretended to be.

§ 1167. The pretence must be squarely negatived. Thus it is not enough, in order to prove the insolvency of a partnership, to show the private indebtedness of particular partners.7

But prebe squaretived.

tence must

ly nega

Sufficient

§ 1168. While each particular pretence on which conviction is sought must be thus negatived, it is not necessary to negative all the pretences. Any one proved and negatived, to disprove if it supplied a preponderating motive, is sufficient to one preconvict.s

1 R. v. Byrne, 10 Cox C. C. 369.

Whart. on Ev. 39, 725. As to scienter, see infra, 1185. As to ignorance as a defence, see supra, ?? 84

et q.

* See Whart. Crim. Ev. & 321; State v. Wilbourne, 87 N. C. 529, 1882. See Whart. Crim. Ev. ?? 321-2,

329, 341.

tence.

Expecting to pay no negation.

Conduct is

3

§ 1169. When the pretence is false, it is no defence that the defendant expected to pay when he should be able.1

4. Pretences need not be in Words.

§ 1170. The conduct and acts of the party will be sufficient, without any verbal assertion,2 and words, written or a sufficient spoken, imperfectly setting forth a pretence may be suppretence. plemented by proofs of facts completing the false pretence. Where a man assumes the name of another to whom money is due on a genuine instrument, this by itself is indictable. Where, as we have already seen, a person at Oxford, who was not a member of the University, went to a shop for the purpose of fraud, wearing a commoner's cap and gown, and obtained goods, this was held within the act, though not a word passed as to his status. And so where the defendant, an employé in a hospital, wrote to a manager for linen, not saying in words that it was for the hospital, but knowingly creating that impression in the manager's mind. The mere passing business paper, also, at its nominal value, is an affirmation that such value is real.

127 Mass. 446, 1879; Webster v. People, 92 N. Y. 422, 1883; Beasley v. State, 59 Ala. 20, 1877; State v. Vorbeck, 66 Mo. 168, 1877; Com. v. Lundberg, 43 Leg. Int. 260, 1886.

1 R. v. Naylor, L. R. 1 C. C. 4; 10 Cox C. C. 149; People v. Weiger, 100 Cal. 352, 1893.

2 R. v. Giles, L. & C. 502; 34 L. J. 50, M. C.; 10 Cox C. C. 44; R. v. Hunter, Ibid. 642. That there is no distinction in this respect between written and unwritten words, see Com. v. Stevenson, 127 Mass. 446, 1879.

3 R. v. Cooper, L. R. 2 Q. B. D. 510; 36 L. T. (N. S.) 671 ; R. v. Powell, 51 L. T. (N. S.) 713, citing R. v. Giles, supra. As to variance, see infra, 81214.

4 R. v. Story, R. & R. 81; R. v. Barnard, 7 C. & P. 784. See supra, ? 1161.

5

But to make silence a pre

6 R. v. Franklin, 4 F. & F. 94. In an English case determined in 1877, the prisoner, on entering the service of a railway company, signed a book of rules, a copy of which was given to him. One of the rules was, "No servant of the company shall be entitled to claim payment of any wages due to him on leaving the company's service until he shall have delivered up his uniform clothing." On leaving the service he knowingly and fraudulently delivered up, as part of his uniform, to an officer of the company, a great-coat belonging to a fellow-servant, and so obtained the wages due to him. It was ruled that he was properly convicted of obtaining the money by false pretences. R. v. Bull, 36 L. T. (N. S.) 376; 13 Cox C. C. 608. Advertisement in paper. R. v. Randell, 57 L. T. 718, 1887.

tence, it must be part of conduct or acquiescence involving an affirmation.'1

Silence in acquiescing in another's statements may amount to a false pretence. But the silence must be of a character to imply an affirmation of such statements.3

1 People v. Baker, 96 N. Y. 340, 1884. See People v. Baker, 19 Week. Dig. 316, 1884.

2

from the owner. If the opposing view were to obtain, no bargain could be closed without exposure to criminal prosecution. We all of us have reasons, personal to ourselves, for every bargain we make. It is difficult for us always to detail these reasons; if we did, it would often expose us to the placing the goods at an exorbitant price. If everything is thus to be told, it would require the man of caution and sagacity, who, before entering on any business, examines all the attainable facts, to deliver to the other contracting party a lecture which, if nothing were suppressed,might occupy days. It would make every one the

Young v. R., 3 T. R. 98. See Whart. Crim. Ev. 679; People v. Cline, 44 Mich. 290, 1880. The fact that I stand by while B. is lending money to A., who I know is insolvent, will not make me liable to B. unless I do something to corroborate A.'s statements of his solvency. There is no causal relation between my silence and B.'s loan. It is otherwise with my silence when such silence is in any way an affirmation of A.'s statements. But to action, in this sense, words are not necessary. As we have seen, the man who buys goods in a guardian, in business, of every one military uniform, which he is not entitled to wear, and who gets these goods on the credit of the uniform, under circumstances which make credit of this kind reasonable, is as responsible as if he said, "I am a military man."

else. See Merkel's Criminalistische Abhandlungen, and see 5 South. Law Rev. 374.

A mere use of another's error will not make a false pretence, unless there is something done by the deceiving party to confirm such error. OtherOn the other hand, suppression of wise, a person selling stock in the facts by one of the parties to a contract market, he possessing exclusive infordoes not impose criminal liability, mation (honorably acquired) of cirunless there be an active (as distin- cumstances calculated to make the guished from a passive) negation of stock less valuable, would be indictfacts. The Rothschilds incurred no able. In no case, in fact, where there criminal liability when they bought is a sale, is the information of the parlarge masses of consols on the receipt ties the same; hence, if the concealof private intelligence, which they ing of information is a false pretence, kept to themselves, of the defeat of there is no sale which would not be Napoleon at Waterloo. I may believe open to an indictment for false prea particular piece of china, which I tences. Whart. on Cont. ?? 232 et seq. offer to buy at a farm-house, to be of Yet there are, as we have seen, cases peculiar antiquarian value, but I am in which suppression of a fact by a not indictable if I conceal this belief vendor is an indictable false pretence.

3 Supra, ¿ 211 d.