falsity of the pretences, and does not bonâ fide part with the goods. And carelessness or complicity amounting to consent, as we have just seen, estops the prosecutor.' That prose cutor made § 1191. There may be cases where both parties employed false representations; but if so, while each can be convicted on an independent prosecution, neither can set up the other's guilt as a defence to an indictment against himself if the sentations transactions are disconnected. It may be otherwise when is no bar. the transaction is one of fraud against fraud.3 false repre prosecu § 1192. That gross credulity is no defence is illustrated by the prosecutions sustained against conjurors and fortune-tel- Nor is lers. Nothing but gross credulity could be imposed on by such pretenders; yet on behalf of those thus imposed on prosecutions have been sustained.* tor's gross credulity. But and loose not within statute. § 1193. While a false affirmation may be within the statute, such is not the case with loose talk," or the statement of vague conjectural opinion. Thus, where a servant went "brag" into the prosecutor's store, and said he wanted some talk are money for his master to buy some wheat, and the prosecutor gave him ten pounds, this was held not within the statute. And so where the indictment alleged that the defendant falsely pretended that a sum of money, parcel of a certain larger sum, was "due and owing" to him for work which he had executed for the prosecutors, this was held not to be an allegation of a false pretence of an existing fact, as the allegation in the indictment might be satisfied by evidence of a mere matter of opinion, either as Supra, 149. 2 Com. v. Morrill, 8 Cush. 571, 1851; Cummins v. People, 16 Colo. 451, 1891; People v. Watson, 75 Mich. 582, 1889; though see contra, McCord v. People, 46 N. Y. 470, 1871; People v. Stetson, 4 Barb. 151, 1848. Supra, 140. R. v. Giles, L. & C. 502; 10 Cox C. C. 44. See State v. Phifer, 65 N. C. 321, 1871; Miller v. State, 73 Ind. 88, 1880; Bowen v. State, 9 Baxt. 45, 1876; State v. Montgomery, 56 Iowa, 195, 1881; Johnson v. State, 36 Ark. 242, 1880; and supra, 1140. People Contra, State v. Cameron, 117 Mo. 641, 1893. 5 Supra, 1154; R. v. Hamilton, 9 Ad. & El. (N. S.) 271; Com. v. Henry, 22 Pa. 253, 1853; State v. Phifer, 65 N. C. 321, 1871. 6 R. v. Williamson, 11 Cox C. C. 328. See State v. Tomlin, 5 Dutch. 13, 1860; People v. Jacobs, 35 Mich. 36, 1876. See supra, ?? 1154, 1160, as to "puffs." The question of how far an erroneous opinion is a false statement is discussed at large in Whart. on Contracts, ?? 215, 259–63. 7 R. v. Smith, 2 Russ. on Cr. 312; r. Cole, 20 N. Y. Sup. 505, 1892; State Com. v. Barker, 8 Phil. 613, 1871. v. Fooks, (Iowa) 19 Rep. 43, 1884. regarded fact or law, and that therefore the indictment was bad.1 A loose statement, also, that a third person owed the defendant, without saying how much, has been held not to be an adequate pretence.2 Indebted ness of § 1194. That the prosecutor was indebted to the defendant for an amount equal to the value of a chattel obprosecutor tained by the false pretences is no defence. But it is otherwise when money is paid in satisfaction of a debt actually due.* to defend ant no de fence. paper within statute. 11. Property included by Statutes. § 1195. As will be hereafter seen, under the statutes as first Negotiable drafted, only larcenous property is protected. By the statutes now existing in most jurisdictions, however, this limit is obliterated, and the obtaining by false pretences, both of land and of written securities, is made indictable. Under the New York statute, making it indictable to obtain by false pretences "signatures to a written instrument," it is necessary, to constitute the offence, that the instrument should be of such a character as likely to work a prejudice to the signer, though the fact that it would have been void for fraud will be no defence." An indorsement of a negotiable promissory ncte is, in many jurisdictions, within the terms of the statute, and so is the signature to contracts binding the signer.8 A check on a bank is a "thing of value" under the statute." 1 R. v. Oates, 29 Eng. Law & Eq. 552; Dears. C. C. 459; and see, also, R. v. Wakeling, R. & R. 504, where the defendant, as an excuse for not working, said he had "no shoes," upon which a pair was given to him. 2 State v. Magee, 11 Ind. 154, 1858. 3 People v. Smith, 5 Parker C. R. 490, 1863. See supra, ? 884. 4 Infra, & 1197. 540, 1837. See State v. Layman, 8 Blackf. 330, 1846. In re Eberle, 44 Kans. 472, 1890. 8 Ibid.; People v. Gates, 13 Wend. 311, 1835; People v. Chapman, 4 Parker C. R. 56, 1858; State v. Thatcher, 35 N. J. L. 445, 1872; State v. Blauvelt, 38 Ibid. 306, 1876; Ellars v. State, 25 Ohio St. 385, 1874. But see R. v. Danger, D. & B. 307; 7 Cox 5 State v. Burrows, 11 Ired. 477, C. C. 303, where it was held that the 1850. See supra, 22 1130, 1137; Baker v. State, 14 Tex. App. 332, 1883; People v. Reed, (Cal.) 8 Crim. Law Mag. 653, 1886. 1 People v. Crissie, 4 Denio, 525, 1847; People v. Galloway, 17 Wend. English statute does not cover the cases of inducing another party to indorse a note. And see R. v. Brady, 26 Up. Can. Q. B. 13. Infra, 1838. Tarbox v. State, 38 Ohio St. 581, 1883. It is not necessary that any actual loss should be sustained by the maker of the signature fraudulently obtained.1 Thing ob tained must be § 1196. Value, however, is a necessary essential of the article, in order to bring it within the statute. Thus in Pennsylvania it was held that obtaining a receipt in discharge of a debt, by means of a worthless note of a broken bank, of some is not within the 21st section of the Act of 12th July, 1842, the reasoning of the court being apparently that the receipt was a thing of no account, not being an extinguishment of the debt.2 3 value. Value, however, is to be inferred from facts. But no special value need be averred, unless required by statute.* 5 Money § 1197. A false representation, as has been already incidentally noticed, used to induce a party to pay an honest lawful debt, is not within the statute. And where an indictment charged that T., who held a promissory note against J., which was due, called for payment, and with intent to defraud J. falsely represented the note to have been lost or burned up, whereby the latter was induced to pay it; it was held paid in of debt not within satisfaction statute. 1 State v. Pryor, 30 Ind. 350, 1868. a servant of the company, so as to enaInfra, & 1200. ble the holder to travel on the line, is an obtaining a chattel by false pretence, within the stat. 7 & 8 Geo. IV. c. 29, s. 53. R. v. Boulton, 2 C. & K. 917; s. c. 1 Den. C. C. 508. But see as to this point, supra, ? 878. * Moore v. Com., 8 Barr, 260, 1848. G., secretary of a burial society, was indicted for falsely pretending that a death had occurred, and so obtaining from the president an order on the treasurer as follows: "Bolton United Burial Society, No. 23. "Bolton, September 1st, 1853, "Mr. A. Entwistle, Treasurer, Please pay the bearer £2 108., Greenhalgh, and charge the same to the above society. "Robert Lord. "Benjamin Beswick, President." It was held that this was a valuable security under the 7 & 8 Geo. IV. c. 29, s. 53, as explained by the 5th section of the same statute. R. v. Greenhalgh, 25 Eng. Law & Eq. 570; Dears. C. C. 267; 6 Cox C. C. 257. A railway ticket is a "chattel," and the obtaining it by false pretence from 3 Com. v. Coe, 115 Mass. 481, 1874. See supra, 955. ♦ Infra, ? 1221. 5 C. & P. 354; Com. v. McDuffy, 126 In Com. v. McDuffy, Lord, J., said: "We are not aware that the precise question now presented has ever been considered by this court; and we have not been able to find any decision in any court of last resort that a party may be convicted of the crime of obtaining property by false pretences when he has obtained nothing in insufficient to sustain a conviction, as not showing any legal injury resulting to J.1 Credit on account will not dictment. § 1198. It has been held that merely obtaining credit is not within the statute in its original shape. Thus where, to induce his bankers to pay his cheques, a defendant sustain in- drew a bill on a person on whom he had no right to draw, and which had no chance of being paid, in consequence of which the bankers paid money for him, the statute was held not to cover the case, because he only obtained credit, and not any specific sum on the bill.3 But when the money or goods ultimately pass on the credit so obtained, the statutory offence is consum which his prayers are predicated, and the jury should have been instructed that, if proved, the defendant was entitled to an acquittal, and for this reason the exceptions must be sustained." S. P., Com. v. Thompson, Lewis C. L. 197; Com. v. Henry, 22 Pa. 253, 1853; State v. Hurst, 11 W. Va. 54, 1877; State v. Gillespie, 80 N. C. 396, 1879. And see Moulden v. State, 5 Lea, 577, 1880; Jamison v. State, 37 Ark. 445, 1881. value which he would not be entitled dence in support of the facts upon to as of right." Com. v. Drew, 19 Pick. 179, 1837; Com. v. Jeffries, 7 Allen, 568, 1863; R. v. Williams, 7 C. & P. 354; People v. Thomas, 3 Hill, 169, 1842; Com. v. Henry, 22 Pa. 253, 1853; People v. Getchell, 6 Mich. 496, 1859; Com. v. Thompson, 3 Penn. Law Jour. 250, 1843; People v. Genning, 11 Wend. 18, 1833; 2 Russ. on Cr. 312; 1 Bishop's Crim. Law, 525; 2 Ibid. 442. We are, of course, not to be understood as deciding that a mere pretence of indebtedness, by the person from whom the property is obtained, is sufficient; nor is anything which we decide to be construed as in conflict with the wellestablished rule of law, that a party is to be presumed to intend all the natural and ordinary consequences of his acts, and fraud and falsehood are always evidence tending to show that the party had a dishonest purpose; and the question for the jury to decide is, whether, upon all the facts and circumstances the defendant had an intent to defraud and effected that purpose, and whether, in order to accomplish it, he made use of fraudulent representations and succeeded by 6 Cox C. C. 559. means of such representations. We think, therefore, that the defendant See R. v. Bryan, 2 F. & F. 567. should have been allowed to offer evi In R. v. Williams, 7 C. & P. 354, C. owed D. a debt, of which D. could not get payment. S., a servant of D., obtained from C.'s wife two sacks of malt, saying that D. had bought them of C. S. knew this to be false, but took the malt to D., his master, so that he could be paid the debt due him from C. It was ruled that if S. did not intend to defraud C., but merely to put it into his master's power to compel C. to pay him a just debt, S. ought not to be convicted of obtaining the malt by false pretences. 1 People v. Thomas, 3 Hill, (N. Y.) 169, 1842. 2 R. v. Eagleton, Dears. C. C. 515; 3 R. v. Wavell, 1 Mood. C. C. 224. mated,' and even for the credit, the defendant may be convicted of an attempt.2 Goods not in existence are and within statute. § 1199. The statute includes the obtaining of a chattel not in existence when the pretence was made, if the pretence is continuous. Thus where the defendant, by false pre- at the time tences, induced the prosecutor to enter into a contract to build and deliver a van for a certain sum of money, the prosecutor, on the faith of those pretences, built and delivered the van in pursuance of the original order, although there was a question as to countermanding the order after the building, and before the delivery, the offence was held to be made out. It was ruled that, to bring the case within the statute, it is not necessary that the chattel should be in existence when the false pretence is made, if the pretence is a continuing one, so that the chattel is made and delivered in pursuance of the pretence; that the question whether the pretence is or is not such a continuing one is one of fact for the jury, and that in this case there was evidence from which the jury might infer that the pretence was continuous.* Actual in jury to § 1200. When the goods have been obtained, only an intent to defraud need be proved, and not an actual defrauding ;5 and hence it is not necessary to charge loss or damage to the prosecutor, the offence being complete when the goods are obtained by false pretences, with intent to cheat and proved. defraud. ownerneed not be Goods must belonged to the defensonally, or not have § 1201. We must, in this relation, recall the doctrine already laid down in respect to larceny, that the prosecution fails if it appear that the goods obtained, at the time of obtaining, belonged to the defendant, either jointly or severally. This rule applies equally to prosecutions for false pretences in all cases involving partnership accounts. The prosecution, also, does not lie when the taking was under honest claim of title." 1 R. v. Kenrick, 5 Q. B. 49; R. v. Abbott, 1 Den. C. C. 273. Supra, 1180. 2 Supra, 33 173–199. * R. v. Martin, L. R. 1 C. C. 56; 10 Cox C. C. 383. • Ibid. 5 R. v. Bloomfield, C. & M. 537. People v. Herrick, 13 Wend. 87, dant per as a mem ber of a taken on a claim of title. and larceny, supra, 22 696, 714, 739, 887. But see, on the question of lucri causa, Com. v. Harley, 7 Metc. 462, 1844. See supra, & 935. 8 R. v. Evans, L. & C. 252; 9 Cox C. C. 238. 9 Supra, 884, and cases cited, 1197; People v. Getchell, 6 Mich. 1834. See parallel rulings in forgery 496, 1859. |