§ 1176. But it is not necessary to a conviction that the false tence alleged should have been the sole inducement by which the property in question is parted with, if it had a not be the preponderating influence sufficient to turn the scale, al- sole though other considerations operated upon the mind of the party. And this is true even though the prosecutor would not have surrendered the goods solely on the pretence alleged. To require that the belief should be the exclusive motive would exclude conviction in any case; for in no case is any motive exclusive.

§ 1177. If the pretences were not made use of until after the bargain was consummated, it cannot be said with truth, that it was by force of them the property was obtained.3 Thus, in a New York case, a purchase of merchandise bargain was made, the goods selected, put in a box, and the name

of the purchaser and his place of residence marked thereon, and the

box containing the goods put on board a steamboat designated by the purchaser, to be forwarded to his residence: it was held that the sale was complete at this point, and the goods became the property of the purchaser. Hence, where, after such delivery, the vendor, on receiving information inducing him to suspect the solvency of the purchaser, expressed an intention to reclaim the goods, and the purchaser thereupon made representations in respect to his ability to pay, by means of which the vendor abandoned his intention, and the purchaser was then indicted, charged with the offence of having obtained the goods by false pretences, these representations being the alleged false pretences; it was ruled that the sale being complete before the representations were made, the defendant could not be considered guilty of the crime charged against him.1 So where a carrier, having ordered a cask of ale, said, after he had possession of it, "This is for W.:" it was held that an indictment for obtaining it by falsely pretending that he was sent for it by W. could not be sustained.2

Until the bargain is closed and property passed no goods are obtained.3

Verification by prosecutor may be a defence.

§ 1178. When the prosecutor resorts to verification, this may be a defence. The prisoner offered a chain in pledge to a pawnbroker, falsely and fraudulently stating that it was a silver chain, whereas in fact it was not silver, but was made of a composition worth about a farthing an ounce. The pawnbroker tested the chain, and finding it withstood the test, he, relying on his own examination and test of the chain, and not placing any reliance upon the prisoner's statement, lent the prisoner ten shillings, the sum he asked, and took the chain as a pledge. It was held, that if the money had been obtained on the statement made by the prisoner, he might have been convicted of obtaining it by false pretences; but that, as the prosecutor relied entirely upon his own examination, and not upon the false statement, the prisoner was properly found guilty of only an attempt to commit that offence. Yet this result would not be reached if the parties be reversed: a jeweller making the false pretence as to material, and an ignorant purchaser resorting to some imperfect verification of his

1 People v. Haynes, 11 Wend. 557, 1834; 14 Ibid. 547, 1835. See R. v. Dale, 7 C. & P. 352. Infra, & 1227. 2 R. v. Brooks, 1 F. & F. 502.

3 See Whart. on Cont. 5 et seq. * R. v. Roebuck, 36 Eng. Law & Eq. 631; D. & B. 24; 7 Cox C. C. 126. Infra, & 1182.

Pretence

cause, and

must have

In the last case the inference would be that the vendor's false pretence would be operative; in the first case, the contrary. § 1179. The pretence must operate as the direct cause of the transfer; and therefore, where it does not, the statute does not apply. This was the reasoning in an English must have case where the prisoner, by falsely pretending that he was been direct a naval officer, induced the prosecutrix to enter into a con- property tract to lodge and board him at a guinea a week, and un- been der this contract he was lodged and supplied with various transarticles of food. It was held that a conviction for obtaining the articles of food by false pretences could not be sustained, as the obtaining of the food was too remotely the result of the false pretence. Hence, as we have seen, the prosecution fails when it is shown that the pretences were made after the goods were obtained.3

ferred.

When statements were made on different occasions, it is for the jury to say whether they were so connected as to form one transaction.* The prosecutor must have intended to part with his right of property in the goods, and not merely with his possession."

When a judgment by consent is obtained by false pretences, and the money collected under such judgment, this, it has been held by the Supreme Court of Massachusetts, is not an obtaining of money by false pretences.

§ 1180. As will be hereafter seen,' the goods must have been obtained for defendant, and in accordance with his direc- No defence tions; if so, it is no defence that they were obtained that the mediately through a contract which the defendant's false goods were pretence induced the prosecutor to make. At this point mediately through it is to be observed that the cases are plain to the effect a conthat it matters not whether the goods were obtained im

See R. v. Jones, 50 L. T. (N. S.) 726, 1884; 15 Cox C. C. 475; Therasson v. People, 82 N. Y. 238, 1880. Transfer of property should be alleged. State v. McGinnis, 71 Iowa, 685, 1887; State v. Clark, 72 Iowa, 30, 1887; Cannon v. State, (Tex.) 15 S. W. Rep. 117, 1890.

R. v. Gardner, 36 Eng. Law & Eq. 640; 7 Cox C. C. 136; D. & B. 40; R. v. Hamilton, 9 Ad. & El. (N. S.) 271; and see infra, 1202.

3 Supra, 1177.

obtained

tract.

* R. v. Welman, 20 Eng. Law & Eq. 588; Dears. C. C. 188; 6 Cox C. C. 153; R. v. Greathead, 14 Ibid. 108; 38 L. T. (N. S.) 691; Beasley v. State, 59 Ala. 20, 1877.

5 Infra, 1203; supra, ? 888.

6 Com. v. Harkins, 128 Mass. 79, 1880-Gray, C. J., Ames and Soule, JJ., diss.

Infra, & 1202.

mediately by the false pretence, or mediately by a contract to which the false pretence induced the prosecutor to consent, provided there be a causal relation between the contract and the false pretence.1 But it must appear that when a sale is averred, a sale on some sort of consideration must be proved.2

False accounts of payments may be a pretence.

§ 1181. Delivery by servant of false accounts of payments is a pretence. Where the foreman of a manufactory, who was in the habit of receiving from his master money to pay the workmen, obtained from him, by means of false written accounts, more than he had really paid them, or they had earned, it was held within the statute; and all the judges, after much deliberation, agreed that if the false pretence created the credit, the case was within the statute; and they considered that, in this case, the defendant would not have obtained the credit but for the false account which he had delivered, and therefore that he was properly convicted.3

1 R. v. Abbott, 1 Den. C. C. 273; 2 C. & K. 630; R. v. Dark, 1 Den. C. C. 276; R. v. Kenrick, 1 D. & M. 208; 5 Q. B. 49; R. v. Greathead, 14 Cox C. C. 108; Com. v. Davidson, 1 Cush. 33, 1848; Com. v. Hooper, 104 Mass. 549, 1870; Com. v. Hutchison, 114 Ibid. 325, 1873; Com. v. Jeffries, 7 Allen, 548, 1863; State v. Newell, 1 Mo. 248, 1822. Infra, & 1229. Thus, to obtain a "trade" by false pretence is indictable. State v. Stanley, 64 Me. 157, 1875. See State v. Hill, 72 Ibid. 238, 1881. It is otherwise when only credit on account was obtained, which was afterward made operative by a distinct transaction. R. v. Wavell, 1 Mood. C. C. 224. Infra, ? 1198.

Of this Sir J. F. Stephen gives the following illustrations, Dig. Crim. Law, art. 331:

money by false pretences from B., though he meant that C. should forward the draft to B., and should obtain payment of the amount, and though his act, if done in England, would have been an obtaining by false pretences from C. R. v. Kilham, L. R. 1 C. C. 261." Supra, & 878; infra, 1203.

"A., by falsely pretending to be a naval officer, induces B. to enter into a contract to board and lodge him at a guinea a week, and under this contract is supplied with food for a week. This is not obtaining food by false pretences, as the supply of food in consequence of the contract is too remotely the result of the false pretence to become the subject of an indictment. R. v. Gardner, D. & B. 40." Supra, ?? 1175, 1179.

2

Wagoner v. State, 90 Ind. 504, 1883; Baker v. State, 14 Tex. App. 332, 1883.

"A. draws a bill upon B, in London, and gets it discounted by C. in Russia, by falsely pretending, by means of a forged authority, that he is authorized 3 R. v. Witchell, 2 East P. C. 830; to draw upon B. for the amount of the Bonnell v. State, 64 Ind. 498, 1878. bill. A. does not attempt to obtain Supra, 1141; but see infra, & 1215.

§ 1182. The prosecutor in a trial for obtaining an in- Prosecutor dorsement by false pretences, may testify to the influence witness to of the defendant's representations in inducing him to in- ponderatdorse. The causal relationship in such cases is a matter

of inference.2

prove pre

ing influ

ence.

that prose

should

§ 1183. It is an essential ingredient of the offence that Necessary the party alleged to have been defrauded should have be- cutor lieved the false representations to be true, for if he knew them to be false, he cannot claim that he was influenced by them.3

8. Intent.

have be

lieved the representations.

from facts.

§ 1184. While an intention to defraud is inferable from all the facts of the case, and need not be substantively proved, Intent to such an intention is necessary to the offence. Thus, a be inferred surveyor of highways, having authority to order gravel for the roads, in ordering gravel as usual, and applying it to his own use, is not liable to a charge of obtaining it by false pretences, nor of larceny, unless it appear that he did not mean to pay for it. § 1184 a. That the pretence was used honestly to collect a just debt has been ruled to be a defence."

To compel payment of debt.

Proof of

system

§ 1184 b. As has been already fully seen, whenever a guilty act is deliberately performed, we may logically infer a guilty intent, and it is always admissible to fortify admisthis presumption by showing guilty preparations, or other

1

sible.

People v. Miller, 2 Parker C. R. That knowledge of falsity is not to be 197, 1854. inferred from independent and de

* Therasson v. People, 82 N. Y. 238, tached false statements to others, see 1830. Supra, 3 1179.

3 R. v. Dale, 7 C. & P. 352; R. v. Mills, 40 Eng. Law & Eq. 562; 7 Cox C. C. 263; D. & B. 205; People v. Stetson, 4 Barb. 151, 1848; Com. v. Dunleay, 153 Mass. 330, 1891. Supra,

1176-7.

* See infra, 1226; R. v. Hamilton, 9 Ad. & El. (N. S.) 271. See, also, R. r. Bloomfield, C. & M. 537; People v. Herrick, 13 Wend. 87, 1834; People

People v. Spielman, 20 Alb. L. J. 96; s. c. under name of People v. Schulman, 14 Hun, 516; 76 N. Y. 624, 1879; referred to in 80 Ibid. 373 n; Whart. Crim. Ev. ? 48.

5 State v. Norton, 76 Mo. 180, 1882; Fay v. Com., 28 Gratt. 912, 1877; Carlisle v. State, 76 Ala. 75, 1884.

6 R. v. Richardson, 1 F. & F. 488— Wightman.

7 Infra, & 1197; State v. Hurst, 11

r. Baker, 96 N. Y. 340, 1884; Bowler W. Va. 54, 1877. r. State, 41 Miss. 570, 1867. As to

proof of intent, see supra, ?? 101- Ev.

122; Whart. Crim. Ev. 53, 734.

See supra, 122; Whart. Crim. 734.