(539) Another form for same.

(540) Obtaining goods by cheque on a bank where the defendant had no effects.

(541) Pretence that defendant was the agent of A. B., and as such had been sent by A. B. to C. D., to receive certain money due from the latter to the former.

(542) Pretending to be clerk of a steamboat, and authorized to collect money for the boat.

(543) Pretence made to a tradesman that defendant was a servant to a customer, and was sent for the particular goods obtained.

(544) Another form for same.

(545) Pretence that the defendant was entitled to grant a lease of certain free-
hold property.
(546) Pretence that the defendant was authorized agent of the Executive Com-
mittee of the Exhibition of the Works of Industry of all Nations, and
that he had power to allot space to private individuals for the exhibi-
tion of their merchandise.
(547) Pretence that prisoner was an unmarried man, and that having been
engaged to the prosecutrix, and the engagement broken off, he was
entitled to support an action of breach of promise against her, by
which means he obtained money from her.

(548) Pretence that defendants were the agents of P. N., who was the owner
of certain stock and land, &c., the latter of which was in fact mort-
gaged.

(549) That defendant possessed a capital of eight thousand dollars, which had come to him through his wife, it being her estate, and that a part of it had already come into his possession, and a part would come into his possession in the month then next ensuing, &c.

pay money on the prisoner's account to other people, to a larger extent than they would otherwise have done; R. v. Worrell, 1 Mood. C. C. 224.

In the cases which have occurred in this country, the same rules are applied. Thus, where one under a fictitious name delivered to a person to sell on commission, spurious lottery tickets purporting to be signed by himself, and received from the agent the proceeds of the sale; Com. v. Wilgus, 4 Pick. 177; where a keeper of an intelligence office, by falsely pretending he had a situation in view, induced the prosecutor to pay him two dollars as a premium; Com. v. Parker, Thacher's C. C. 24; where the defendant falsely pretended to the prosecutor that a horse he was about to sell him was the horse "Charley," whereas he was not that horse, but another of equal worth; State v. Mills, 17 Maine R. 211; where a person obtained goods under the false pretence that he lived with and was employed by A. B., who sent him for them; People v. Johnson, 12 Johns. 292; Lambert v. People, 9 Cow. 578; where the defendant represented himself to be in a successful business as a merchant in Boston, with from $9,000 to $10,000 over and above all his debts, and to give weight to this assertion represented that he had never had a note protested in his life, and had then no indorsers; where in one count the pretence was, "that he, the said J. A. B., possessed a capital of $8,000, that the said $8,000 had come to him through his wife, it being her estate, and that a part of it had already come into his possession, a part would come into his possession in the month then next ensuing, and that for the remaining part thereof he would be obliged to wait for a short time;" and in the second count, that he, the said J. A. B., "possessed a capital of $8,000, which said $8,000 had come to him through his wife, it being her estate;" and in a third, "that he, the said J. A. B., was then and there possessed of $8,000;" where the defendant pretended to the prosecutor that the goods to be purchased were ordered for a hotel-keeper in Washington, who was a man of credit, and to whom they were to be immediately forwarded; Com. v. Spring, cited 3 Pa. L. J. 89; where the pretence was, that the defendant owned real estate in Passyunk Road worth $7,000, and that he had personal property and other means to meet his liabilities, and that he was in good credit at the Philadelphia Bank; Com. v. M'Crossin, 3 Pa. L. 219; where the indictment charged that N. represented to O. that he possessed four valuable negroes, and that he would let him have them for four bills of exchange on Philadelphia, and that in consequence of this representation the bills were drawn by O., and that this representation was made knowingly and designedly, and with intent to cheat O. of his drafts, and that, in fact, N. possessed no such slaves as he pretended to have; State v. Newell, 1 Mo. R. 177;-in all these cases, there was held to be the false representation of an existing fact, and that the exigencies of the statute therefore were satisfied.

(550)

(551)

Second count. That defendant had a capital of $8,000, which came through his wife.

Third count. That defendant had a capital of $8,000. (552) Pretence that defendant was well off and free from debt, &c.

(553)

Second count. Setting forth the pretence more fully. (554) Pretence that certain property of the defendant was unincumbered, and that he himself was free from debts and liabilities.

(555) Pretence that defendant had then purchased certain property, which it was necessary he should immediately pay for.

(556) Pretence that a certain draft for $7,700, drawn by a house in Charleston on a house in Boston, which the defendant exhibited to the prosecutor, had been protested for non-payment; that the defendant had had his pocket cut, and his pocket-book containing $195 stolen from it; that a draft drawn by a person in Philadelphia, which the defendant showed the prosecutor, had been received by the defendant in exchange for the protested draft, and that the defendant expected to receive the money on the last-mentioned draft.

(557) Pretence that a certain watch sold by defendant to prosecutor was gold. (558) Obtaining money by means of a false warranty of the weight of goods. (559) Obtaining money by a false warranty of goods.

(560) Falsely pretending that goods were of a particular quality.

(561) Pretence that a certain horse to be sold, &c., was sound, and was the horse called "Charley."

(562) Pretence, that a horse and phaeton were the property of a lady then shortly before deceased, and that the horse was kind, &c.

(563)

Second count. Like the first, except that the offering for sale was alleged to have been by T. K., the elder, only.

(564) Other pretence as to the value and history of a horse, which the prisoners sold to the prosecutor.

(565) Pretence, that one J. P., of the city of Washington, wanted to buy some brandy, &c.; that said J. P. kept a large hotel at Washington, &c.; that defendant was sent by said J. P. to purchase brandy as aforesaid, and that defendant would pay cash therefor, if prosecutor would sell him the same. First count.

(566)

(567)

Second count. That defendant was requested by one J. P., who kept a large hotel in Washington City, to purchase some brandy for said J. P., and that if prosecutor would sell defendant two half pipes of brandy, defendant would pay prosecutor cash for the same shortly after delivery.

Third count. That defendant had been requested by one J. P., to purchase for him some brandy, that he (the said J. P.), kept a large hotel in Baltimore, &c.

(568) Pretence, that one of the defendants having advanced money to the other on a deposit of certain title deeds, had himself deposited the deeds with a friend, and that he received a sum of money to redeem them; with counts for conspiracy.

(569) For pretending to an attesting justice and a recruiting sergeant that de-
fendant was not an apprentice, and thereby obtaining money to enlist.
(570) For obtaining more than the sum due for carriage of a parcel by produc-
ing a false ticket.

(571) Pretence that defendant had no note protested for non-payment, that he
was solvent, and worth from nine to ten thousand dollars.
(572) Obtaining acceptances on drafts, by pretence that certain goods had been
purchased by defendant and were about to be shipped to prosecutor.
(573) Obtaining acceptances by the pretence that defendants had certain goods
in storage subject to prosecutor's order.

(574) Receiving goods obtained by false pretences, under the English statute.

(528) General frame of indictment. (m)

That A. B., &c., on, &c., at, &c., devising and intending to cheat and defraud, &c. (stating party intended to be defrauded), of his goods, moneys, chattels, and property, unlawfully, knowingly, and designedly, did falsely (a)

(m) See Wh. C. L. § 2144.

(a) An indictment averring that the defendant did "falsely and feloniously pretend," &c., was held bad; R. v. Walker, 6. C. & P. 657. In those states, however, as in New

pretend(b) to C. D.,(c) that(d) (setting out the pretence), whereas in truth and fact (negativing the pretence), (e) as he, the said A. B., then and there well

York, where the offence is a felony, the averment is of course essential. As to "knowingly," see Com. v. Hulbert, 12 Metc. 446; see Wh. C. L. § 2144.

(b) The word pretend is indispensable, though the word falsely, according to the English practice, R. v. Airey, 2 East R. 31, is not essential, the pretences being subsequently negatived. It is much safer, however, to insert it. See Wh. C. L. § 2144.

(c) The pretence need not be to the party from whom the property is obtained; if made to his agent, who communicates it to the principal, it is sufficient; Com. v. Call, 21 Pick. 515; Com. v. Harley, 7 Met. 462. And in the same case, it was held that an indictment which substantially averred that the false pretences were practised on A. B., and his money obtained thereby with intent to defraud C. D., was good. See R. v. Lara, 1 Leach C. C. 647; Wh. C. L. § 2145.

Where the indictment averred the pretences to have been made to a firm, it is sufficient to show that they were made to one of the firm; Com. v. Mooare, Thach. C. C. 410; and, in a late case, the Supreme Court of Massachusetts held, that a false pretence made use of to an agent, who communicates it to his principal, and who is influenced by it to act, is within the statute; Com. v. Call, 21 Pick. 515; Com. v. Harley, 7 Met. 462; see also Com. v. Bagley, 7 Pick. 279. A false pretence made to A. in B.'s hearing, by which money is obtained by B., may be laid as a pretence made to B.; R. v. Dent, 1 C. & K. 249. And it is said that money paid by an agent is rightfully laid as money paid by a principal.

The money of a benefit society whose rules were not enrolled, was kept in a box, of which E., one of the stewards, and two others, had keys; 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.; ib.

(d) It is not necessary to describe the pretences more particularly than they were shown or described to the party at the time, and in consequence of which he was imposed on; 2 East P. C. c. 18, s. 13, p. 837, 838; Com. v. Hulbert, 12 Met. 446; Wh. C. L. § 2148. It is sufficient to state the effect of the pretence correctly; the very words need not be used; R. v. Scott, cited in R. v. Parker, 2 Mood. C. C. R. 1; 7 C. & P. 825. But a variance between the indictment and the evidence, with regard to the effect of the pretences, will be fatal; thus, where the indictment stated that the defendant pretended he had paid a sum of money into the Bank of England, and the evidence showed that he had said, generally, that the money had been paid into the bank, Ellenborough C. J., held the variance fatal; R. v. Prestow, 1 Campb. 494. Wh. C. L. § 2148.

When the property is obtained by means of a sale, the proper course seems to be to aver such fact specially. Com. v. Strain, 10 Metc. 446; State v. Philbrick, 31 Maine (1 Red.) 401.

But it is not necessary to prove the whole of the pretences charged; proof of part, and that the property was obtained by force of such part, is enough; R. v. Hill, R. & R. 190; R. v. Ady, 7 C. & P. 140. In New York it has been held that where one or more of the pretences are proved to be false, it is sufficient, per se, to constitute the offence; the accused may be convicted, notwithstanding that the other pretences in the indictment are not proved; such pretences being in such case regarded as surplusage; see People v. Stone, 9 Wend. 182; State v. Mills, 17 Maine 211; Com. v. Daniels, 2 Pars. 333; Britt v. State, 9 Hump. 31; Com. v. Merritt, 8 Cush. 571; Cowen v. People, 14 Illinois 348. The same rule exists in the analogous cases of perjury and blasphemy; Ld. Raym. 886; 2 Campb. 138-9; Cro. C. C. 7th ed. 662; State v. Hascall, 6 N. Hamp. 358; Com. v. Kneeland, 20 Pick. 206; Wh. C. L. § 2148. (See next note.) An indictment stated that by the rules of a benefit society, every free member was entitled to five pounds on the death of his wife, and that the defendant falsely pretended that a paper which he produced was genuine, and contained a true account of his wife's death and burial, and that he further falsely pretended that he was entitled to five pounds from the society, by virtue of their rules, in consequence of the death of his wife; by means of which "last mentioned false pretence" he obtained money; it was held good; R. v. Dent, 1 C. & K. 249.

(e) It is necessary for the pleader to negative specifically all the false pretences relied on to sustain the indictment; Tyler v. State, 2 Humph. 37; R. v. Perott, 2 M. & S. 379; Wh. C. L. § 2158. There must be a special averment that the pretences, or some of them, are false; and where none of them are negatived, the case will be reversed on error. It was held, in one case, that if the proof was adequate as to the offence, though only coming up to a portion of the pretence averred in the indictment, a conviction was good; R. v. Hill, R. & R. 190. In R. v. Perott, the question was thoroughly exam

knew (or, which said pretence, the said A. B. then and there well knew to be false), (f) by color(f) and means (g) of which said false pretence and pretences, he, the said A. B., did then and there unlawfully, knowingly, and designedly, obtain (h) from the said C. D. (stating the property obtained), (i) being then and there the property of the said C. D.,(j) with intent to cheat and defraud the said C. D.(k) to the great damage of the said C. D.(1) contrary, &c. (Conclude as in book 1, chap. 3.)

ined by Ellenborough C. J., and it was remarked as a reason for the rule above laid down, "to state merely the whole of the false pretence, is to state a matter generally combined of some truth as well as falsehood." Such is the law in New York; People v. Stone, 9 Wend. 182; People v. Haynes, 11 Wend. 563. But it would seem to be safer to negative each pretence specifically in the indictment; it being plain that if only one of the assignments is well laid and is proved on trial to have been the moving cause of the transfer of property from the prosecutor to the defendant, the rest may be disregarded. It is difficult to say how a court, on demurrer or motion in arrest of judgment, can go behind the indictment and say that the particular assignment, though one among many, which the pleader has omitted to negative, was not the operative motion on the prosecutor's mind. In a case, however, where one portion of the assignment of fraud must necessarily, from its structure, be true, e. g. where the defendant pretends that being the servant of A. B., he was employed by him to convey goods to the defendant, for the carrying of which, porterage is charged, and where the fact is that the defendant is a servant of A. B., but was not employed by him to carry the goods in question, it is of course only necessary to negative what is in fact the false pretence used. Wh. C. L. § 2158.

(f) It is always prudent to allege a scienter, and it is necessary so to do, unless the pretences stated are of such a nature as to exclude the possible hypothesis of the defendant not knowing of their falsity; R. v. Philpotts, 1 C. & K. 112; see also Com. v. Speer, 2 Va. cases 65; see Wh. C. L. § 297, 2159. A contrary opinion, it is true, is expressed by the Supreme Court of Massachusetts (Com. v. Hulbert, 12 Metc. 446) and is sustained by Judge Parsons, in Com. v. Blumenthal, Philadelphia, 1846, to a manuscript copy of which I have had the opportunity to refer.

"But it has been further contended that an indictment for this offence should always aver the scienter, that the accused made the representations charged in the bill knowing them to be false, for non constat, but that in a case like the present, where a defendant is charged with having made a representation as to his means, solvency, and ability to pay, he might not have known of the true condition of his affairs, and if such was the case, he would be guilty of no offence. It seems to me, however, there might be two answers given to this argument, without resorting to authority. In the first place there is nothing said of the scienter in the statute, unless we take it from the words 'intent' and 'designedly,' and we have already given an understanding of them. And in the second place, where the charge on the record is, that the intention was to cheat and defraud, the fact that the accused made a statement of his means and ability, which he honestly believed was true, but in fact was mistaken, it would be matter of proof by him to rebut the assertion upon the record that his intention was to cheat, and the further averment that the representation was false.

"To sustain his position the learned counsel has cited a number of respectable English authorities where it was ruled that in consequence of the scienter not being averred in the bill, the indictment was held bad. But I think on an examination of the forms of most of the English pleaders as given in the elementary writers, and the decisions on this point, the scienter has been required to be averred only, where the statute under which the party was indicted contained that as one of its provisions, or where from the character of the offence it was necessary to state in the indictment the material facts and circumstances which the public prosecutor was bound to prove, in order to make the act criminal.

"The first section of the act of the 30 Geo. II. c. 26, is in these words: That all persons who knowingly and designedly by false pretence or pretences, shall obtain from any person or persons, money, goods, wares and merchandise, with intent to cheat and defraud any persons or persons of the same,' &c. It will be found by a reference to the forms given by Mr. Chitty, of indictments under this statute, the scienter is averred. The fifty-third section of the 7 and 8 Geo. IV. c. 29, is as follows: If any person shall by any false pretence obtain from any other person any chattels, money or valuable security with intent to cheat or defraud any person of the same,' &c. Now I observe that in indictments under this statute, the scienter is not always averred, and does not seem to be, except in those cases where from the facts in the case, it was material in order to constitute the offence, and when without an averment, that the accused knew

of the falsity of the means alleged to have been used, there would have been no crime: and such I am certain was the case of the Queen v. Wickham, 10 A. & E. 38, where the offence charged was in relation to a promissory note, and the representations made about the same, when it was material to aver and prove that the prisoner knew that the note for twenty-one pounds was not a good and valuable security. And not unlike it is the case of the Queen v. Henderson, 1 C. & M. 330, where it was also, from the nature of the offence charged, material to show that the prisoner knew that the allegation was false, for, from the nature of the assertion set forth, the legitimate inference was that it was true.

"But in the case before us the averment of the false statement is one alleged to have been made with regard to the prisoner's own affairs, where from the nature of the assertion, the inference is inevitable that he knew whether what he was stating was true or false, and on proof of its falsity, his guilt might be legitimately inferred, unless by countervailing testimony, he can show that he was innocently mistaken in the representations he made. Therefore it is not a material fact which the prosecution are bound to state in the indictment, or prove on the trial, in order to bring the case within the act of 1842. If the accused could show to the satisfaction of a jury, that he did not know that his asseveration of facts relating to his condition, was untrue, it perhaps might avail him as a defence to the allegation in the bill, of an intention to cheat and defraud, for that is the essence of the charge.

"The second cause assigned for the demurrer, is, that the offence set forth in the bill is not a crime under the laws of this state. In my opinion this case comes within the principles laid down by this court in Com. v. Poulson, 6 L. J. 272, and that case must be considered the law in this county, until it is reversed by a higher tribunal. "The indictment charges that the prisoner did falsely pretend that he and his brother Alexander, trading as Blumenthal and Brother, were then doing an excellent and profitable business at Norfolk, Virginia, and that they were perfectly solvent and prosperous. Now when we have it admitted upon the record that this representation was made 'devising and intending' to cheat and defraud the prosecutors out of their property, that the whole was false and untrue, that by color and means of said false pretence, they obtained the goods mentioned in the bill, with an intent to cheat and defraud the prosecutors and to their damage, it seems to me that it is a pretence within the meaning of the statute, and to hold any different rule would tend to increase the frauds against which the act intended to guard. When we are told by the Supreme Court, It is certain that a fraudulent misrepresentation of a party's means and resources is within the English statutes, and à fortiori, within our own,' it seems to me such a false statement is a crime, when made with an intention to cheat and defraud a party out of his goods.

"I have, after mature reflection, seen no reason for retaining the rule laid down in the case of Poulson; that opinion was formed after a thorough examination of the law, and was the determination of the whole court, and one by which we are all bound until reversed; nor shall I attempt in any case to avoid giving full effect to the law as therein settled. As I view the present record there can be no doubt that this court would be justified in pronouncing sentence upon the prisoner. He is fully apprised of all he has to answer, and after admitting all which is stated to be true, there can be no question but that such acts are a violation of the law. Hence judgment must be entered in favor of the commonwealth on the demurrer, unless it is withdrawn."

This is all very vigorous and true, and though, as before mentioned, it is prudent to insert the scienter in all cases, it can hardly be held necessary in instances in which, like that just noticed, the defendant must necessarily have been conscious of the falsity of his own statement.

(f) "Color" alone is bad. State v. Chunn, 19 Mo. 233.

(g) To omit to aver that it was by means of the pretences as laid that the property was obtained, is fatal; R. v. Airey, 2 East 30. Wh. C. L. § 2162.

(h) The "obtaining" must be alleged in name; State v. Bacon, 7 Verm. 219.

(i) It is necessary that the property obtained should be described with the same accuracy as in larceny. Com. v. Morrell, 8 Cush. 571. Wh. C. L. § 354-363-2155. Where a signature to a note has been obtained by false pretences, and the party defrauded has been obliged to pay the note, it is enough to charge the sum paid to have been obtained, &c., without setting forth the obtaining of the signature; People v. Herrick, 13 Wend. 87.

(j) The indictment must state the goods to be the property of some person named, and where no owner is laid, the indictment will be quashed; R. v. Parker, 3 A. & E. 292; R. v. Norton, 8 C. & P. 196; State v. Lathrop, 15 Verm. R. 279; R. v. Martin, 8 A. & E. 481; 3 N. & P. 472. Sill v. R. 16 Eng. Law and Eq. 375; State v. Lathrop, 15 Verm. 279, Wh. C. L. § 2155.

(k) This is essential under the statutes; see Wh. C. L. & 2159.