Goods must § 1202. It has been already seen that the pretences have been need not be made, or the goods obtained, by the defenfor defend- dant personally, but that it is sufficient if he be represented in this respect by agents directed by himself. obtained ant, and in accordance with his directions. 2 At the same time, the defendant is not criminally responsible for acts of independent third parties in the subsequent use, without any privity with him, of instruments of fraud constructed by him. And the goods must be obtained "according to the wish or to gain some object of the party who makes the false pretence." § 1203. While it is immaterial whether the property was obtained by an absolute or a conditional sale, yet the statute does Property must pass, not apply where only the use of a chattel passes, as in mere use of cases of bailment or hiring, or where possession only passes, not property. And if only possession passes and not property, and the property is afterward feloniously appropriated, then the party taking may be guilty of larceny, in which case the cheat ordinarily merges in the felony." and not chattel. Delivery of property, either actual or constructive, to the defendant, must be proved.8 Property § 1204. As we have seen, property not larcenous was not at first covered by the statutes, and hence the words "money," not larcen- 66 "goods," "property," have been held not to include or "land." It is otherwise, however, by special statutes in most jurisdictions." ous not within statute. dogs "9 1 See supra, 1171. 2 See supra, 22 160-9, 1179. 9910 3 Lord Campbell, C. J., R. v. Garrett, 6 Cox C. C. 260; Dears. 232; 22 Eng. Law & Eq. 607; supra, 279; infra, 1207; and see, to same effect, People v. Parish, 4 Denio, 153, 1847; Willis v. People, 19 Hun, 84, 1879. * Com. v. Lincoln, 11 Allen, 233, 1865. 5 R. v. Kilham, L. R. 1 C. C. 261. See R. v. Crossley, 2 M. & Rob. 17; Cline v. State, 43 Tex. 494, 1875. 6 State v. Anderson, 47 Iowa, 142, 1877; Canter v. State, 7 Lea, 349, 1881. Tex. 326, 1857. As to merger, see R. v. Martin, London Law Times, Dec. 13, 1879, p. 109. Infra, 1344. 8 See Ex parte Parker, 11 Nebr. 309, 1881; Morgan v. State, 42 Ark. 131, 1883. ' R. v. Robinson, 8 Cox C. C. 115; Bell C. C. 34. See Jackson v. Com., 86 Ky. 1, 1887. 10 State v. Burrows, 11 Ired. 477, 1850. 11 Supra, 1195. In Indiana boarding and lodging are within the statute. State v. Snyder, 66 Ind. 203, 1879. See R. v. Burton, 54 L. T. (N. S.) 765, 1886. Contra, State v. Black, 75 7 Supra, 964; State v. Vickery, 19 Wis. 490, 1890. 12. Where the Offence is triable. § 1205. Cheats by false pretences being often, from their very nature, spread over several jurisdictions, it may become important to determine before what court the offence is to be tried. In answering this question, the following points will be of use: Venue, in cases of may be laid inany place conflict, § 1206. Where a false pretence is uttered in A., and the money obtained in B., the venue may be laid either in A. or B.1 This, in England, is finally settled by statute, which, however, is in this respect only affirmatory of the common law. In several instances it has been held that the forum that first takes cognizance of the offence, whether it be the forum of the uttering of the pretence, or that of the forwarding of the goods, attaches to itself jurisdiction.3 of offence. pare R. v. Cooke, 1 F. & F. 64. Supra, 288. 1 See supra, ? 288. In Stewart v. Jessup, 51 Ind. 413, 1875, it was held that the place where the goods were In R. v. Holmes, L. R. 12 Q. B. D. obtained alone had jurisdiction. In 23; 49 L. T. (N. S.) 540 (cited supra, Norris v. State, 25 Ohio St. 217, 1874, % 288), it was held that the English it was held that the place where goods were delivered to a carrier had jurisdiction. The question of conflict of jurisdiction in such cases is examined supra, 279, 284, 288, and more in detail in an article in Crim. Law Mag. for March, 1885. C., the defendant, in a begging letter, which contained false pretences, and was addressed to P., who resided in Middlesex, requested him to put a letter, containing a post-office order for money, in a post-office in Middlesex, to be forwarded to the defendant's address in Kent. It was ruled that the venue was rightly laid in Middlesex, as C., by directing the money order to be sent by post, constituted the postmaster in Middlesex agent to receive it there for him. R. v. Jones, 1 Den. C. C. 551; 4 New Sess. Cas. 353. courts had jurisdiction in a case where the letter containing the false pretence was mailed in England and received in France, the money being sent from France to England. State v. Lichliter, 95 Mo. 402, 1888. 3 Supra, 263. See this ruled as to the forum in which the pretences were uttered in Skiff v. People, 2 Parker C. R 139, 1853; R. v. Cooke, 1 F. & F. 64; R. v. Leech, 36 Eng. Law & Eq. 539; Dears. C. C. 642; 7 Cox C. C. 100; and as to the forum in which the money was obtained in R. v. Jones, 1 Den. C. C. 551; 4 Cox C. C. 198, where the county in which money was mailed to the defendant, living in another county, was said to have jurisdiction. In R. v. Garrett, 22 Eng. Law & Eq. 607; 6 Cox C. C. 260; Dears. C. C. 232; People v. Adams, 3 Denio, 190, 1846; 1 Comst. 173, 1846; Com. v. Tuyl, 1 Metc. (Ky.) 1, 1856, See further, R. v. Leech, Dears. C. C. 642; 7 Cox C. C. 100; R. v. Standbury, 9 Ibid. 94; L. & C. 128. Com- it was held that the place of the re VOL. II.-7 97 1 Principal agent's act. § 1207. When the pretences were uttered in one place, and the goods obtained by an agent in another place, the principal indictable may be tried in the latter place. Hence, as we have in place of just seen, a non-resident principal, who in a foreign land utters a false pretence, is responsible in the land in which such false pretence is used to obtain goods by an agent under the principal's directions, though such principal was not personally present in the latter land until after the goods were obtained." Doctrine of § 1208. Unless made so by statute, the common law asportation doctrine of asportation has no application to cheats by apply. false pretences.3 does not Several de fendants may be joined. 13. Indictment.* § 1209. All the parties concerned in the offence may be joined as co-defendants. And, as has already been seen, evidence under a joint indictment that one of them, with the concurrence and approval of the other, made the false pretences charged, warrants the conviction of all." Parties who have concurred and assisted in the fraud may be convicted as principals, though not present at the time of making the pretence and obtaining the money or goods." Technical § 1210. An indictment averring that the defendant did "falsely and feloniously pretend," etc., is at common law bad. In averments those States, however, as in New York, where the offence necessary. is a felony, the averment is of course essential. 'Designedly," when in the statute, must be inserted. The word For Forms, see Whart. Prec. 528 ceipt of the property has jurisdiction, although the pretence on which the et seq. money was obtained was uttered in another State. Supra, 2 288. 1 51 Gabbet Crim. Law, 214, 215; State v. Thaden, 43 Minn. 325, 1890. Supra, 1171; Com. v. Harley, 7 Metc. 462, 1844. 6 Supra, 279. The obtaining of the property is the consummation of the offence, and the prosecution must R. v. Moland, 2 Mood. C. C. 276. be instituted where that takes place. See supra, 223. Whart. Cr. Pl. & Connor v. State, 29 Fla. 455, 1892; Pr. ?? 221 et seq. State v. Schaeffer, (Mo.) 8 Crim. Law Mag. 530, 1886. 8 R. v. Walker, 6 C. & P. 657. State v. Baggerly, 21 Tex. 757, 1858. See Whart. Prec. 528 et seq. as to the importance of this averment. 3 R. v. Stanbury, L. & C. 128; 9 See, generally, infra, ? 1224; Mathena Cox C. C. 94. v. State, 15 Tex. App. 473, 1884. "pretend" is indispensable, though the word "falsely," according to the English practice,' is not essential, the truth of the pretences being subsequently negatived. It is much safer, however, to insert it, and its omission has been held in this country fatal.2 Party in § 1211. The party injured must be described with the same accuracy as has been shown to be requisite in larceny.3 Any variance in his name is at common law fatal. What jured must are variances are elsewhere considered.* be described as in larceny. Pretence to agent is pretence to principal. § 1212. Pretences alleged to have been made to a firm are proved by showing that they were made to one of the firm and a pretence made use of to an agent, who communicates it to his principal, and who is influenced by it to act, is a pretence made to the principal. A pretence made to A. in B.'s hearing, by which money is obtained from B., may be laid as a pretence made to B. Money paid by or to an agent is rightfully laid as money paid by or to a principal. And so where money is paid to the wife for the husband.' 8 § 1213. The pretences must be specially averred,1o though their 1 1 R. v. Airey, 2 East, 30. the principal did not act upon the * Hamilton v. State, 16 Fla. 288, representations made otherwise than 1877. 3 See supra, & 977; State v. McChesney, (Mo.) 9 Crim. Law Mag. 78, 1886; R. v. Sowerby, L. R. 2 Q. B. D. 173, 1894. 4 Whart. Crim. Ev. 91. through the agent. People v. Wakely, The money of a benefit society, whose rules were not enrolled, was kept in a box, of which E., one of the 5 Stoughton v. State, 2 Ohio St. 562, stewards, and two others, had keys; 1853. the defendant, on the false pretence that his wife was dead, which pretence he made to the clerk of the society in the hearing of E., obtained from the hands of E., out of the box, five pounds; it was held that in an indictment the pretence might be laid as made to E., and the money as the property of "E. and others," obtained from E. R. v. Dent, 1 C. & K. 249. 6 Supra, 1171; Whart. Crim. Ev. 102; R. v. Lara, 1 Leach C. C. 647; 6 T. R. 565; Com. v. Call, 21 Pick. 515, 1839; Com. v. Harley, 7 Metc. 462, 1844. See, also, R. v. Keely, 2 Den. C. C. 68; R. v. Tully, 9 C. & P. 227; R. v. Dewey, 11 Cox C. C. 115; Com. v. Bagley, 7 Pick. 279, 1828; Com. v. Mooar, Thacher C. C. 410, 1834; Stoughton v. State, 2 Ohio St. 562, 1853; Britt v. State, 9 Humph. 31, 1848; Whart. Crim. Ev. ?? 91 et seq. It is proper to allege that the false representations were made to an agent, and if he had authority to sell the article obtained by such false pre- 10 R. v. Mason, 2 T. R. 581; R. v. tence, it will be sufficient, although Henshaw, L. & C. 444; R. v. Gold 8 Whart. Crim. Ev. ?? 94-102. 9 R. v. Moseley, Leigh & C. 92. See R. v. Carter, 7 C. & P. 134; Sandy v. State, 60 Ala. 58, 1877. Infra, 1227. Pretences must be omission is now in England cured by verdict. But at common law they must be accurately and adequately set specially. forth, so that it may clearly appear that there was a false pretence of an existing fact.' averred An indictment was also held defective in a case where it was charged that C. falsely pretended to P., whose smith, 12 Cox C. C. 479; L. R. 2 C. C. 74; R. v. Jarman, 14 Cox C. C. 48; 38 L. T. (N. S.) 460; State v. Jackson, 39 Conn. 229, 1872; Com. v. Whitney, mare and gelding had strayed, that (Ky.) 3 S. W. Rep. 533, 1887; Dwyer he, C., would tell him where they v. State, 24 Tex. App. 132, 1887; were, if he would give him a soverPeople v. McKenna, 81 Cal. 158, 1889; eign down. P. gave the sovereign, Territory v. Underwood, 8 Mont. 131, but the prisoner refused to tell. It was 1888; U. S. v. Hess, 124 U. S. 483, 1888; said that the indictment should have Com. v. Rosenberg, 3 Lanc. L. Rev. 75, stated that he pretended he knew where 1886; State v. Chapel, 117 Mo. 639, they were. R. v. Douglass, 1 M. C. 462. 1893; Com. v. Brocken, 14 Phila. 342, 1880. See People v. Cline, 44 Mich. 290, 1880; Thomas v. People, 113 Ill. 531, 1885. 1 Ibid.; R. v. Henshaw, L. & C. 144; 9 Cox C. C. 472; Bonnell v. State, 64 Ind. 498, 1878; See State v. Dickson, 88 N. C. 643, 1883; Hirshfield v. State, 11 Tex. App. 207, 1881. In a case already cited on the merits, the indictment charged that C., contriving and intending to cheat P., on a day named, did falsely pretend to him that he, C., then was a captain in her Majesty's fifth regiment of dragoons; by means of which false pretence he did obtain of P. a valuable security, to wit, an order for the payment of £500, of the value of £500, the property of P., with intent to cheat P. of the same; whereas in truth he (C., the defendant,) was not, at the time of making such false pretence, a captain in her Majesty's regiment; and the defendant, at the time of making such false pretence, well knew that he was not a captain. This was held sufficient after conviction and judgment. It was held not necessary to allege more precisely that the defendant made the particular pretence with the intent of obtaining the security; nor how the particular pretence was calculated to effect, or had effected, the obtaining; and it was further held The pretences were held inadequately stated in an indictment in which the first count charged that C. unlawfully did falsely pretend to P. that he, C., was sent by W. for an order to go to T. for a pair of shoes, by means of which false pretence he did obtain from T. a pair of shoes, of the goods and chattels of T., with intent to defraud P. of the price of the said shoes, to wit, nine shillings, of the moneys of P. The second count charged that he falsely pretended to P. that W. had said that P. was to give him, the defendant, an order to go to T. for a pair of shoes, by means of which false pretence he did obtain from T., in the name of P., a pair of that the truth of the pretence was shoes of the goods of T., with intent to defraud T. of the same. R. v. Tully, 9 C. & P. 227-Gurney; though compare R. v. Brown, 2 Cox C. C. 348per Patteson, J. well negatived, it appearing sufficiently that the pretence was that the defendant was a captain at the time of his making such pretence, which was the fact denied; and that it was |