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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 Pretence by one to defraud, evidence that one of them, with the knowledge, ate is pre- approbation, concurrence, and direction of the other, tence by

made the false pretences charged, warrants the conviction of both.1



A jeweller, for instance, sells a spuri- He who enters into a bargain of ous ring as of true metal. He may any kind implies : not say, “ This is gold,” but he asks I. The existence of all conditions for it the price of gold, and from his essential to the validity of the transwhole conduct the assertion that it is action on his part, so far as such congold is implied. He is as much in- ditions are, or ought to be, within his dictable for false pretences as if he knowledge. Thus, he who calls for had actually said, “ This is gold.” the payment of a debt implies the Suppose, however, that the sale is not existence of a right on his part to of a gold ring, but of a mass of bul- make the demand. He who takes a lion, at a time when specie payments receipt implies that he made a payare suspended. If the bullion be sold ment to which the receipt corresponds. as gold, but is of base metal, then an II. The existence of analogous conindictment lies. But an indictment ditions in the other party. He, for does not lie because it turns out that instance, who buys a particular article the vendor has secret information implicitly expresses the opinion that from which he has reason to conclude the seller is capable of disposing of that gold will materially fall in value the article. soon after the sale. The distinction is III. A bargaining party also implies this: By the usage of trade, he who the existence of the conditions on sells an article as of a particular class which the other party depended when warrants it to be of that class, so that entering into the transaction. Thus, he becomes responsible if it is spuri- the manufacturer who delivers to his ous; but if the article be genuine, customers particular articles implies there is no warranty as to its value. the existence of qualities which go

In interpreting words when used as to make up the value of the goods false pretences, we must take them in when ordered. The grocer who dethe sense in which they are understood livers a package to a purchaser callby the person deceived. The deceiver ing for a pound of coffee implies that cannot shelter himself by the pretext the package contains the article called that the words had a double meaning, for, in the required quantity. Of this and that they might, in one sense, be kind of implicit assertion Mittermaier truthful, though not in the sense gives us the following illustration : in which they were accepted. Ibid. “A customer sees an ornament, ex2% 627 et seq.

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, 8% 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

stones; he supposes they are jewels, no assent by the party receiving the and offers $100 for the ornament; money to assumptions by the other the vendor sees the error of the pur- party which are essential incidents of chazer, but does not undeceive him, the bargain. Whart. on Cont. 2% 232 and takes the money.” This is a case et seq. of obtaining money on false pretences. | Com. v. Harley, 7 Metc. 462, The offering of $100 for an ornament 1844. An indictment charged K. and which would not be worth one-tenth P. with falsely pretending to B. that that sum if the stones were not jewels, they had a quantity of tobacco, which is equivalent to a statement by the they proposed to sell, and did sell to purchaser that they were jewels, and him, and thereby obtained money to a silent admission by the vendor to from him. The evidence was that K. the same effect. At the same time, it and P., acting together, were the must be remembered that a bare en- chief parties by whom the false pretrance into a particular transaction is tences had been made. It was held, not in itself such an affirmation of the that the acts of P. were the acts of K., opinion of the other contracting party and admissible against him upon the as to amount to a false pretence, even indictment. R. v. Kerrigan, 9 Cox C. though the transaction be entered into C. 441. fraudulently. It is possible to take an Infra, & 1184 ; Com. v. Harley, 7 attitude of absolute“ non-committal- Metc. 462, 1844; R. v. Moland, 2 ism” as to such expressions, and it Mood, C. C. 276; Cowen v. People, would be absurd to treat a refusal to 14 Ill. 348, 1853; but see infra, affirm as an affirmation. A.-to take & 1202. 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


third person on account of the defendant, is a delivery to the defendant. § 1172. The prosecutor, however, cannot prove false pretences

made by a third person, alleged to have been made by the Confederacy must

procurement of the defendant, without first showing that be first the defendant instigated such person to make them;"nor shown.

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. $ 1173. A false pretence, under the statute, must relate to a past Promises

event or existing fact. Any representation with regard or predic- to a future transaction is excluded. Thus, for instance, tions are

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

not false


variance between the indictment and 127 Mass. 446, 1879; Com. v. Drew, the proof, as the words, " and others,” 19 Pick. 179, 1837 ; People v. Blanchin the allegation that the false pre- ard, 90 N. Y. 314, 1882; Com. v. tence was made“ to J. B. and others,” Moore, 99 Pa. 570, 1882 ; Dillingham might be rejected as surplusage. R. v. State, 5 Ohio St. 280, 1855 ; Colly v. Kealey, 1 Eng. Law & Eq. 585; 2 v. State, 55 Ala. 85, 1876; State v. Den, C. C. 68.

Evers, 49 Mo.542, 1872 ; Ryan v. State, 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, Lee, L. & C.C. C. 309; R. v. 41 Tex. 65, 1874 ; State v. Thaden, 43 Goodhall, R. & R. 461; R. v. Wood- Minn. 325, 1890 ; State v. Colly, 39 man, 14 Cox C. C. 179; R. v. Burgon, La. An. 841, 1887 ; Scarlett v. State, D. & B. 11; Ex parte Burrell, L. R. 1 25 Fla. 717, 1889; Rothschild v. Ch. D. 552; Sawyer v. Prickett, 19 State, 13 Lea, 294, 1884. See, as conWall. 146, 1873; Long v. Woodman, flicting with this rule, State v. Nichols, 58 Me. 49, 1870; Com. v. Stevenson, 1 Houst. C. C. 114, 1862.

4 R. v.

But false

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. ;' 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 conviction could not be sustained.4

$ 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 pros- pretence is ecutor would not have yielded to the pretence without the not nem

tralized by promise. And it is even said by Crompton, J., that the concurpretence need not necessarily be of some alleged existing promise.

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.

5 Com. v. Wallace, 114 Pa. 405, * People v. Haynes, 11 Wend. 557 ; 1886 ; Thomas v. State, 90 Ga. 437, 14 Ibid. 547, 1835; Com. v. Burdick, 1892. See R. v. Burgon, D. & B. 11; 2 Barr, 163, 1845 ; Burrow v. State, 7 7 Cox C. C. 131 ; State v. Hill, 72 Me. Eng. (Ark.) 65, 1851 ; Glackan v. 238, 1881 ; State v. Cowdin, 28 Kans. Com., 3 Metc. (Ky.) 232, 1860. Supra, 191, 1882. 2 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.

Ibid. 12; R. v. Asterley, 7 C. & P. 191 ; R. r. Burrows, 11 Cox C. C. 258. Com. v. Lincoln, 11 Allen, 233, 1865 ; Where the prosecutor lent £10 to State v. Rowley, 12 Conn. 101, 1837. the prisoner, induced by his false pre- Of this principle, a striking illustratence that he was going to pay his tion is given, supra, § 1163; and as to rent, and the proof was that if the promises to marry, see supra, % 1148. prisoner had not told him that he was R. v. West, 8 Cox C. C. 12; R. v. going to pay his rent the prosecutor Fry, 7 Ibid. 394 ; D. & B. 449. would not have lent the money ; it


fact, capable of being disproved by positive testimony, but may depend on the bonâ 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 pretence to utter a post-dated cheque.

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 operative

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.4




1 R. v. Jones, 6 Cox C. C. 467. which the false pretence consisted, Supra, & 1162.

and that the false pretence in no way 3 R. v. Dale, 7 C. & P. 352; Com. v. confirmed or strengthened him in this Davidson, 1 Cush. 33, 1848 ; Clark v. belief; can it be said that he parted People, 2 Lans. 329, 1869. See R. v. with his goods on the faith of the Gardner, 7 Cox C. C. 136 ; D. & B. false pretence? Or, to put the case 40; Com. v. Drew, 19 Pick. 179, 1837 ; in the concrete : A. is firmly of the Com. v. Herschell, Thacher's C. C. belief that B. is a rich man, worth 70, 1824; Schleisinger v. State, 11 $100,000. B. comes to A. and says: Ohio St. 669, 1860.

Lend me $10,000; I am worth that 4 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.

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