acts from which the intent may be gathered, even though the latter acts constitute independent offences, provided they are part of a system with that on trial. Thus, upon an indictment for obtaining goods by falsely pretending that the buyer owed but little, and had ample means to pay all his debts, and that his note for $250 was good, it is competent for the State to prove, that within three days after, he mortgaged the greater part of his personal property to another, as bearing upon his intent in making such representations.2

But such proof is inadmissible if relating to a disconnected transaction. Thus when C. was indicted for obtaining a specific sum of money from P. by false pretences, and the evidence was that he was employed by his master to take orders, but not to receive moneys, and he was proved to have obtained the specific sum from P. by representing that he was authorized by his master to receive it; proof of his having, within a week afterward obtained another sum from another person by a similar false pretence, such obtaining not being in any way connected with the transaction under trial, was held inadmissible for the purpose of proving the intent when he committed the acts charged in the indictment.3

Intent to

§ 1184 c. It does not negative the intent to defraud, that the defendant intended to pay for the articles obtained when indemnify able, or that he paid in part, at the time, for the articles no defence. obtained, or that a trap was laid for him by the prosecu

1 See Whart. Crim. Ev. 22 53 et seq., 734, 753; Com. v. Jackson, 132 Mass. 16, 1882; Com. v. Howe, 132 Mass. 250, 1882; People v. Winslow, 39 Mich. 505, 1878.

intent, by the use of such false means, to induce another to part with his possession and confide it to the defendant, when he would not otherwise have done so. Neither the promise to repay, nor the intention to do so, will deprive the false and fraudulent act in obtaining it of its criminality. Com. R. v. Holt, 8 Cox C. C. 411; Bell v. Tenney, 97 Mass. 50, 1867; Com. v. C. C. 280.

2 State v. Call, 48 N. H. 126, 1868, Trogden v. Com., 31 Gratt. 862, 1878. See Whart. Crim. Ev. & 53.

4 R. v. Bowen, 13 Q. B. 790; State

v. Thatcher, 35 N. J. 445, 1872.

Mason, 105 Mass. 163, 1870. The of fence is complete when the property or money has been obtained by such

In Com. v. Coe, 115 Mass. 481, means, and would not be purged by 1874, Wells, J., said:

"The offence consists in obtaining property from another by false pretences. The intent to defraud is the

subsequent restoration or repayment. Evidence of ability to make the repayment is therefore immaterial and inadmissible. The possession of the

5 R. v. Eagleton, Dears. 515; 33 Eng. Law & Eq. 540.

tor, or that the article obtained was not that which it was his principal motive to secure. Nor is it essential that the pretence should have been made lucri causa,3

9. Scienter.

have

§ 1185. Falsity, in the sense of the statutes, must be subjective as well as objective; the statement must not only be false Defendant in fact, but false to the knowledge of its utterer. It must be should be remembered, however, that proof of knowl-shown to edge of a negative is circumstantial and inferential. In known the falsity. what way this proof is constituted has been already partially considered. And proof that the defendant was ignorant of a fact that he stated, sustains a charge of false statement.

10. Prosecutor's Negligence or Misconduct.

Prosecutor

not required to dence be

show pru

yond his

ties.

§ 1186. We have seen that to a cheat at common law it is essential that the fraud should be latent. It was in part to meet this difficulty that the statute of false pretences was passed, and under this statute it has been repeatedly held that it matters not how patent the falsity of a pretence may be if it succeed in defrauding. Thus, in a leading opportunicase, Lord Denman, C. J., said, in answer to the statement that the false pretences, to become the subject of indictment, should be such as would deceive a man of average intelligence, "I never could see why that should be. Suppose a man had just enough (fraud) to impose upon a very simple person, and defraud him; how is it to be determined whether the degree of fraud is such as will amount to a misdemeanor ?" Hence, the fact that the prose

means of payment is entirely con- R. v. Henderson, 2 Mood. C. C. 192; sistent with the fraud charged. The People v. Fitzgerald, 92 Mich. 328, evidence offered on this point did not 1892; Com. v. Devlin, (Mass.) 8 touch the question of falsity and fraud Crim. Law Mag. 53, 1886. of the means by which the loan was 5 See supra, ?? 1165-6. obtained, and was properly rejected." Supra, 2 887.

Reese v. Mining Co., L. R. 4 H. L. 79. Infra, ?? 1225, 1246. 7 See supra, ? 1120.

2 Todd v. State, 31 Ind. 514, 1869. 8 R. v. Wickham, 10 Ad. & El. 34. 3 See R. v. Moland, 2 Mood. 271; Mr. Greaves (2 Russ. on Cr. 9th ed. Com. v. Harley, 7 Metc. 462, 1844; 628) objects to this ruling, on the Cowen v. People, 14 Ill. 348, 1853. ground the question was for the jury. Supra, & 895. It is a question for the jury. People R. v. Philpotts, 1 C. & K. 112; v. Dimick, 107 N. Y. 13, 1887.

cutor did not possess or apply peculiar prudence is no defence when the prosecutor was really imposed upon.' Nor is it any defence that the prosecutor, by searching the records of the courts, might have discovered the falsity of the statement.2

Exceptions to above rule.

§ 1187. To this rule, however, some exception has been taken. Thus, in New York, it was once laid down that a representation, though false, is not within the statute unless calculated to deceive persons of ordinary prudence and discretion. So, in Pennsylvania, it was said: "Broad, however, as is the phrase 'for any false pretence whatever,' it still has a legal limit beyond which it cannot be carried in this or any other case. It extends no further than to a case where a party has obtained money or property by falsely representing himself to be in a situation in which he is not, or any occurrence which has not happened, to which persons of ordinary caution might give credit. Where the pretence is absurd or irrational, or such as the party injured had at the very time the means of detecting at hand, it is not within the act.”4 And the same opinion has been expressed in Arkansas. In Pennsylvania, however, this exception has been qualified, it being now held that "it is no less a false pretence that the party imposed upon might, by common prudence, have avoided the imposition." And in New York the position first taken has been somewhat modified. "Though the language of the statute, 'by any other false pretence,' is exceedingly broad," says Jewett, J., in a latter case," and in its general acceptation would include every kind of false pretence, and though it may be difficult to draw a line which would exclude cases where common prudence would be

1

Supra, 1156; R. v. Woolley, 1 Den. C. C. 559; R. v. Ball., 2 Russ. on Cr. 289; C. & M. 249; R. v. English, 12 Cox C. C. 171; Com. v. Henry, 22 Pa. 253, 1853; Miller v. State, 73 Ind. 88, 1880; Woodbury v. State, 69 Ala. 242, 1881; Smith v. State, 55 Miss. 513, 1878; Colbert v. State, 1 Tex. App. 314, 1876; though see Com. v. Wilgus, 4 Pick. 177, 1826; State v. Simpson, 3 Hawks, 620, 1825. See opinion of Well, J., in Com. v. Coe, 115 Mass. 481, 1874. That in

6 Com. v. Henry, 22 Pa. 256, 1853Tennessee, under statute, common Woodward, J. prudence" must be shown, see Delaney v. State, 7 Baxt. 28, 1872.

a sufficient protection, still I do not think it should be so interpreted as to include cases where the representation was absurd or irrational, or where the party alleged to be defrauded had the means of detection at hand. The object of the statute, it is true, was to protect the weak and credulous against the wiles and stratagems of the artful and cunning. But this may be accomplished under an interpretation which should require the representation to be an artfully contrived story, which would naturally have an effect upon the mind of the person addressed-one which would be equal to a false token or false writing-an ingenious contrivance or unusual artifice, against which common sagacity and the exercise of ordinary caution would not be a sufficient guard."

His con

§ 1188. It is submitted, however, that whether the prosecutor "had the means of detection at hand," or whether "the pretences were of such a character as to impose upon tributory him," are questions of fact, to be left to the jury, as they to be deter must necessarily vary with the particular case. If fraudu- mined by his lights. lent and false pretences were used, and goods obtained by them, the prosecutor's capacity and opportunities must be considered in determining his culpability. It must also be remembered that the statute assumes some defect in caution, for if there were perfect caution no false pretences could take effect. With this view accords a well-considered English case, in which it was held that the offence was made out where the defendant fraudulently offered a £1 Irish bank note as a note for £5, and obtained change as for a £5 note, even though the person from whom the change was obtained could read, and the note itself upon the face of it clearly afforded the means of detecting the fraud.* And it must be remem

3

1 People v. Crissie, 4 Denio, 529, C. 399; D. & B. 422; State v. Mills, 1847. See R. v. Roebuck, supra, ? 17 Me. 211, 1840; In re Greenough, 1158; R. v. Mills, supra, 1138; Peo- 31 Vt. 279, 1858; People v. Haynes, ple r. Stetson, 4 Barb. 151, 1848; infra, 14 Wend. 547, 1835; Smith v. People, 1189; and see People v. Sully, 5 47 N. Y. 303, 1872; Cowen v. People,' Parker C. R. 142, 1860. Supra, 14 Ill. 348, 1853; People v. Pray, 1 @ 1160. Mich. N. P. 69, 1870. Gross carelessness is to be determined by the capacity of the prosecutor. The weaker the mind, the less stringent the rule. Ibid.; R. v. Woolley, 1 Den. C. C. 559; Temp. & M. 280.

2 See supra, 147; Savage v. Stevens, 126 Mass. 207, 1879; People v. Dimick, 107 N. Y. 13, 1887; People v. Rice, 13 N. Y. Sup. 161, 1891; Peopler. Cole, 20 Ibid. 505, 1892.

3 R. v. Hamilton, 9 Ad. & El. (N. S.) 271; R. r.Woolley, 1 Den. C. C. 559; T. & M. 280; R. v. Jessop, 7 Cox C.

bered that the question of carelessness is to be determined from the prosecutor's standpoint. To obtain from a jeweller money, by exhibiting a spurious jewel, might not be within the statute, while it would be within the statute for the jeweller to offer the same spurious stone to an ignorant customer. The simple and credulous are as much under the shelter of the law as are the astute.2

ness

to consent

§ 1189. Yet, on the other hand, carelessness so gross as to amount to a submission to fraud estops the prosecutor Careless- from maintaining a prosecution. Thus, in Massachuamounting setts, in 1865, it was held that obtaining money from estops the prosecutor on the ground that on a former occasion prosecutor. he had not given due change, was not within the statute.1 And in North Carolina, in 1877, a pretence that "certain cotton was good middling," was held not within the statute, in a case where the prosecutor, an expert, had on hand the means of detection.5

Trap set by prose

§ 1190. If the defendant obtain the money by a false pretence, knowing it to be false, it is no answer that by third parties he had been entrapped into the commission of the offence, cutor is no if the prosecutor waived none of his legal rights. It is otherwise, of course, when the prosecutor is aware of the

defence.

1 See supra, 1178.

2 Bowen v. State, 9 Baxt. 45, 1876. See, however, Com. v. Grady, 13 Bush, 285, 1877; supra, ? 1160.

Cf. Criticism in 26 Alb. Law J. 105. 3 See Bonnell v. State, 64 Ind. 498, 1878; State v. De Hart, 6 Baxt. 222, 1873; Buckalew v. State, 11 Tex. App. 352, 1882. Supra, ?? 143-9.

not be sustained. The reasoning of the court seems to have been, that if the prosecutor was guilty of rape, he was in some degree "particeps criminis" with the prisoner, and hence could make out no case; and if he was not guilty, the pretences were not sufficiently reasonable to impose upon a prudent man of average intelligence.

* Com. v. Norton, 11 Allen, 266, People v. Stetson, 4 Barb. 151, 152, 1865. 1848; S. P., McCord v. People, 46 N.

5 State v. Young, 76 N. C. 258, Y. 470, 1871. See contra, Perkins v. 1877.

State, 67 Ind. 270, 1879. Cf. People v. Williams, 4 Hill, (N. Y.) 9, 1842. But this is not law where the prosecutor is simply the victim of ignorant terror, and endeavors under its influence to buy off a supposititious prosecution. Com. v. Henry, 22 Pa. 253,

It was held in New York, on a demurrer, that an indictment for obtaining a watch from a person, upon the false representation that the defendant was a constable and had a warrant against such person, issued by a justice of the peace, for the crime of 1853. Supra, 1151; R. v. Asterley, rape, and that he would settle the 7 C. & P. 191. same if the person defrauded would

6 R. v. Ady, 7 C. & P. 140. See

give the defendant the watch, could supra, ?? 149, 917, 1059.