Pretence by one 5. They need not be by the Defendant personally. § 1171. Where two persons are jointly indicted for obtaining goods by false pretences, made designedly and with intent to defraud, evidence that one of them, with the knowledge, ate is pre- approbation, concurrence, and direction of the other, made the false pretences charged, warrants the conviction of both.1 confeder tence by all. A jeweller, for instance, sells a spurious ring as of true metal. He may not say, "This is gold," but he asks for it the price of gold, and from his whole conduct the assertion that it is gold is implied. He is as much indictable for false pretences as if he had actually said, "This is gold." Suppose, however, that the sale is not of a gold ring, but of a mass of bullion, at a time when specie payments are suspended. If the bullion be sold as gold, but is of base metal, then an indictment lies. But an indictment does not lie because it turns out that the vendor has secret information from which he has reason to conclude that gold will materially fall in value soon after the sale. The distinction is this: By the usage of trade, he who sells an article as of a particular class warrants it to be of that class, so that he becomes responsible if it is spurious; but if the article be genuine, there is no warranty as to its value. He who enters into a bargain of any kind implies: I. The existence of all conditions essential to the validity of the transaction on his part, so far as such conditions are, or ought to be, within his knowledge. Thus, he who calls for the payment of a debt implies the existence of a right on his part to make the demand. He who takes a receipt implies that he made a payment to which the receipt corresponds. II. The existence of analogous conditions in the other party. He, for instance, who buys a particular article implicitly expresses the opinion that the seller is capable of disposing of the article. III. A bargaining party also implies the existence of the conditions on which the other party depended when entering into the transaction. Thus, the manufacturer who delivers to his customers particular articles implies the existence of qualities which go to make up the value of the goods when ordered. The grocer who delivers a package to a purchaser calling for a pound of coffee implies that the package contains the article called for, in the required quantity. Of this kind of implicit assertion Mittermaier gives us the following illustration: In interpreting words when used as false pretences, we must take them in the sense in which they are understood by the person deceived. The deceiver cannot shelter himself by the pretext that the words had a double meaning, and that they might, in one sense, be truthful, though not in the sense in which they were accepted. Ibid. "A customer sees an ornament, ex?? 627 et seq. 1 quisitely elaborated, set with cut 1 R. v. Moland, 2 Mood. C. C. 276; Com. v. Harley, 7 Metc. 462, 1844; Cowen v. People, 14 Ill. 348, 1853; State v. Grant, 86 Iowa, 216, 1892; Com. v. Blood (Mass.), 8 Crim. Law Mag. 89, 1886; Whart. Crim. Ev. 102. Infra, 1202, 1211-2. An allegation in an indictment that the defendants obtained goods of A., B., and C., partners in trade, by false pretences made to them, is supported by proof that the defendants made the alleged false pretences to their clerk and salesman, who communicated them to B., and that the goods were delivered to the defendants in consequence of those false pretences. And it is not necessary, in order to convict the defendants in such case, to prove that they, or either of them, obtained the goods on their own account, or derived, or expected to derive, personally, any pecuniary benefit therefrom. And, generally, the delivery of goods or money to a money to assumptions by the other party which are essential incidents of the bargain. Whart. on Cont. ?? 232 et seq. 1 Com. v. Harley, 7 Metc. 462, P. with falsely pretending to B. that they had a quantity of tobacco, which they proposed to sell, and did sell to him, and thereby obtained money from him. The evidence was that K. and P., acting together, were the chief parties by whom the false pretences had been made. It was held, that the acts of P. were the acts of K., and admissible against him upon the indictment. R. v. Kerrigan, 9 Cox C. C. 441. stones; he supposes they are jewels, no assent by the party receiving the and offers $100 for the ornament; the vendor sees the error of the purchaser, but does not undeceive him, and takes the money." This is a case of obtaining money on false pretences. The offering of $100 for an ornament 1844. An indictment charged K. and which would not be worth one-tenth that sum if the stones were not jewels, is equivalent to a statement by the purchaser that they were jewels, and to a silent admission by the vendor to the same effect. At the same time, it must be remembered that a bare entrance into a particular transaction is not in itself such an affirmation of the opinion of the other contracting party as to amount to a false pretence, even though the transaction be entered into fraudulently. It is possible to take an attitude of absolute "non-committalism" as to such expressions, and it would be absurd to treat a refusal to affirm as an affirmation. A.-to take another of Mittermaier's cases-imag- An indictment charged the prisoner ines that he has made a large sum in a with attempting, by false pretences speculation in which he was engaged; made to J. B. and others, to defraud exhilarated with his supposed good the said J. B. and others of certain fortune, he pays a debt of 500 florins; goods, the property of the said J. B. the creditor takes the money, knowing and others. On the trial, it was at the time that the debtor is in error proved that the prisoner made the as to the success of the speculation, false pretences set forth in the indictbut without undeceiving him. Put- ment to J. B. only, with intent to deting aside the fact that obtaining fraud J. B. and others, his partners, payment of a debt cannot be made, by of property belonging to the firm; itself, indictable, there is in this case and it was held that there was no 2 Infra, 1184; Com. v. Harley, 7 Metc. 462, 1844; R. v. Moland, 2 Mood, C. C. 276; Cowen v. People, 14 Ill. 348, 1853; but see infra, ? 1202. third person on account of the defendant, is a delivery to the defendant.1 Confederacy must be first shown. § 1172. The prosecutor, however, cannot prove false pretences made by a third person, alleged to have been made by the procurement of the defendant, without first showing that the defendant instigated such person to make them; nor can the defendant, who fraudulently negotiates spurious paper, be convicted under the statute for the subsequent act of the purchaser of such spurious paper, done innocently and without the defendant's knowledge or instigation, in obtaining money on such paper. 3 6. They must relate to a Past or Present State of Things. Promises or predic tions are not false § 1173. A false pretence, under the statute, must relate to a past event or existing fact. Any representation with regard to a future transaction is excluded. Thus, for instance, a false statement, that a draft, which the defendant expretences. hibits to the prosecutor, has been received from a house of good credit abroad, and is for a valuable consideration, on the faith of which he obtains the prosecutor's goods, is within the law; a promise to deposit with him such a draft at some future time, though wilfully and intentionally false, and the means of the prosecutor's parting possession with his property, is not. So a pretence that the party would do an act that he did not mean to do (as a pre variance between the indictment and 127 Mass. 446, 1879; Com. v. Drew, the proof, as the words, " and others," in the allegation that the false pretence was made “to J. B. and others," might be rejected as surplusage. R. v. Kealey, 1 Eng. Law & Eq. 585; Den. C. C. 68. 2 19 Pick. 179, 1837; People v. Blanchard, 90 N. Y. 314, 1882; Com. v. Moore, 99 Pa. 570, 1882; Dillingham v. State, 5 Ohio St. 280, 1855; Colly v. State, 55 Ala. 85, 1876; State v. Evers, 49 Mo. 542, 1872; Ryan v. State, 1 Sandy v. State, 60 Ala. 58, 1877. 45 Ga. 128, 1872; Keller v. State, 51 Infra, 1227. Ind. 111, 1875; Gage v. Lewis, 68 Ill. 2 Per Bronson, C. J., People v. Par- 604, 1873; Canter v. State, 7 Lea, 349, ish, 4 Denio, 153, 1847. 1881; In re Snyder, 17 Kans. 542 3 Infra, 1202. Bracey v. State, 64 1877; McKenzie v. State, 6 Eng. Miss. 17, 1886. (Ark.) 594, 1851; Johnson v. State, 41 Tex. 65, 1874; State v. Thaden, 43 Minn. 325, 1890; State v. Colly, 39 La. An. 841, 1887; Scarlett v. State, 25 Fla. 717, 1889; Rothschild v. State, 13 Lea, 294, 1884. See, as conflicting with this rule, State v. Nichols, R. v. Lee, L. & C. C. C. 309; R. v. Goodhall, R. & R. 461; R. v. Woodman, 14 Cox C. C. 179; R. v. Burgon, D. & B. 11; Ex parte Burrell, L. R. 1 Ch. D. 552; Sawyer v. Prickett, 19 Wall. 146, 1873; Long v. Woodman, 58 Me. 49, 1870; Com. v. Stevenson, 1 Houst. C. C. 114, 1862. tence that he would pay for goods on delivery) was ruled by all the judges not to be a false pretence, within the statute of Geo. II.;1 and the same rule is distinctly recognized in this country, it being held that the statement of an intention is not a statement of an existing fact. Thus, to take as an illustration an English case, on an indictment for obtaining goods in a market by falsely pretending that a room had been taken at which to pay the market people for their goods, the jury found that the well-known practice was for buyers to engage a room at a public house, and that the prisoner conveyed to the minds of the market people that she had engaged such a room, and that they parted with their goods on such belief. It was held, there being no evidence that the prisoner knew of such a practice, and the case being consistent with a promise only on her part to engage such a room and pay for the goods there, that a con viction could not be sustained.1 § 1174. But a concurrent promise does not neutralize an accompanying false pretence. If there be the false statement of an existing fact, the adding to this of false promises does not take the case out of the statute, when the false pretence was the decisive influence. And this holds, even though the prosecutor would not have yielded to the pretence without the promise. And it is even said by Crompton, J., that the pretence need not necessarily be of some alleged existing promise. 1 But false pretence is not neutralized by concur rent 1 R. v. Goodhall, R. & R. 461; R. was held that this was not such a v. Wakeling, Ibid. 504; R. v. Oates, false pretence of an existing fact as to Dears. C. C. 459; 29 Eng. Law & Eq. warrant a conviction. R. v. Lee, 9 552. See Glackan v. Com., 3 Metc. Cox, C. C. 304. (Ky.) 232, 1860. 2 5 Com. v. Wallace, 114 Pa. 405, 1886; Thomas v. State, 90 Ga. 437, 1892. See R. v. Burgon, D. & B. 11; 7 Cox C. C. 131; State v. Hill, 72 Me. 238, 1881; State v. Cowdin, 28 Kans. 191, 1882. People v. Haynes, 11 Wend. 557; 14 Ibid. 547, 1835; Com. v. Burdick, 2 Barr, 163, 1845; Burrow v. State, 7 Eng. (Ark.) 65, 1851; Glackan v. Com., 3 Metc. (Ky.) 232, 1860. Supra, 1136. 6 R. v. Jennison, Leigh & Cave, Ibid.; People v. Blanchard, 90 N. 157; 9 Cox C. C. 158; R. v. West, 8 Y. 314, 1882. * R. v. Burrows, 11 Cox C. C. 258. Where the prosecutor lent £10 to the prisoner, induced by his false pretence that he was going to pay his rent, and the proof was that if the prisoner had not told him that he was going to pay his rent the prosecutor would not have lent the money; it Ibid. 12; R. v. Asterley, 7 C. & P. 191; fact, capable of being disproved by positive testimony, but may depend on the bona fide intention and capacity of the defendant at the time of entering into a contract to perform it, or to do some act at a future period. Hence, as we have seen, it may be a false pre tence to utter a post-dated cheque. Unless operative statute. 7. They must have been the Operative Cause of the Transfer. § 1175. Where, in Massachusetts, one of the representations proved was that the defendant gave a false name, and where the prosecutor testified that this misrepresentation not within had no influence in inducing him to part with his goods, it was held to have been the duty of the court, either at the time or in the charge, to instruct the jury that such misrepresentation was not, upon the evidence, proved to have been an inducing motive to the obtaining of the goods by the defendant. The same view generally obtains, it being held that there must be causal relation between the pretence and the transfer.* 2 1 R. v. Jones, 6 Cox C. C. 467. Supra, 1162. 3 R. v. Dale, 7 C. & P. 352; Com. v. Davidson, 1 Cush. 33, 1848; Clark v. People, 2 Lans. 329, 1869. See R. v. Gardner, 7 Cox C. C. 136; D. & B. 40; Com. v. Drew, 19 Pick. 179, 1837; Com. v. Herschell, Thacher's C. C. 70, 1824; Schleisinger v. State, 11 Ohio St. 669, 1860. which the false pretence consisted, and that the false pretence in no way confirmed or strengthened him in this belief; can it be said that he parted with his goods on the faith of the false pretence? Or, to put the case in the concrete: A. is firmly of the belief that B. is a rich man, worth $100,000. B. comes to A. and says: "Lend me $10,000; I am worth that * R. v. Dale, 7 C. & P. 352; Hors- sum." B.'s statement that he is worth fall v. Thomas, 1 H. & C. 90; People $10,000 has no effect on A., who is v. Miller, 2 Parker C. R. 197, 1854; already convinced of B.'s great wealth, R. v. Larner, 14 Cox C. C. 497; Ther- outside of this declaration. A. lends asson v. People, 82 N. Y. 238, 1880; B. the money. Supposing that B.'s People v. Baker, 96 Ibid. 340, 1884; statement was knowingly false, can State v. Tomlin, 5 Dutch. 13, 1860; he be convicted of obtaining money State v. Timmins, 58 Ind. 98, 1877; on false pretences? Certainly not, if People v. McAllister, 49 Mich. 12, A. declare he lent the money solely 1882; State v. Kealy (Iowa), 56 N. W. from what he knew by himself. Rep. 284, 1893. Infra, 1227. Falsehoods, also, told by a party as The cases usually given on this to matters not part of the considerapoint are those where the prosecutor tion of a bargain, and which were not was, at the time when the false pre- operative in its concoction, are not tence was uttered, fully aware of its false pretences under the statute. This falsity. Suppose, however, he was applies peculiarly to false statements. firmly convinced, before the utter- as to motives which induce the party ance, of the truth of the statements of to sell or to buy. |