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Kube, 20 Wis. 217, 91 Am. Dec. 390; State v. Vickery, 19 Tex. 326; Zink v. People, 77 N. Y. 114, 33 Am. Rep. 589; Cline v. State, 43 Tex. 494; People v. Rae, 66 Cal. 423, 56 Am. Rep. 102; Com. v. Eichelberger, 119 Pa. 254; Smith v. People, 53 N. Y. 111, 13 Am. Rep. 474; State v. Hall, 76 Iowa, 85; Ross v. People, 5 Hill, 294; Miller v. Com. 78 Ky. 15, 39 Am. Rep. 194; March v. State, 117 Ind. 547.

At the trial of an indictment against a person charged with obtaining money by false pretenses, letters written by him tending to show that he committed the crime, are admissible in evidence against him, although they also tend to show that he committed other crimes. Com. v. Blood, 141 Mass. 571.

And if there is any evidence in support of an allegation in an indictment there is no variance between the allegation and the proof, although the evidence is contradictory; and, if the question of variance is submitted to the jury under proper instructions, the defendant has no ground of exception. Com. v. Blood,

supra.

The mere statement of an intention to do a certain thing, although made to induce the sale and although the buyer had not the intention stated is not a false pretense within the statute. Ranney v. People, 22 N. Y. 413; Rex v. Goodhall, Russ. & R. 461; Rex v. Douglas, Mood. C. C. 462; Scott v. People, 62 Barb. 62; Reg v. Lee, 9 Cox, C. C. 304; Rex v. Dale, 7 Car. & P. 352; People v. Tompkins, 1 Park. Crim. Rep. 224; Com. v. Fisher, 9 Phila. 594; Johnson v. State, 41 Tex. 65; Reg. v. Archer, Dears. C. C. 453, 1 Jur. N. S. 479; Reg. v. Bates, 3 Cox, C. C. 203, 204; Reg. v. Johnston, 2 Mood. C. C. 254; State v. Magee, 11 Ind. 155; Glackan v. Com. 3 Met. (Ky.) 233; Mich. 496; Cowen v. People, 14 Ill. 348; 245; 2 Russell, Crimes (6th ed.) 300; Bishop, Crim. L. (5th ed.) 419, 479.

People v. Getchell, 6
Com. v. Frey, 50 Pa.

The indictment must show what the false pretenses were, and state them with reasonable certainty and precision. Rex v. Mason, 1 Leach, C. C. 487; Reg. v. Henshaw, Leigh & C. 444. It is not necessary that the prosecution should prove them all. State v. Mills, 17 Me. 211; Rex v. Hill, Russ. & R. 190.

By reference to Cowen's Criminal Digest at page 320, we find it stated that "a false pretense must relate to an existing fact, any representation as to what will or will not happen cannot be con

sidered as a false pretense. So that if a man obtains goods by promising to pay cash for them, or to pay for them at a future time, or gives his note for them with assurances that it will be paid at its maturity, when at the same time he does not intend to pay, these are false promises because there is no pretense that any fact exists; there is no representation as to what is then untrue." And again he says: "As a general rule, there must be a false representation by words, written or spoken by the accused, or by some one for him, to which he gives his assent. A mere false show or appearance, however specious or successful it may be, will not support a prosecution under the statute. The false pretense must not only be a misrepresentation as to an existing fact, but it must be a willful misrepresentation; or, in other words, the party must know that he is making a false misrepresentation, and it must be so alleged in the indictment. . The false pretense must be one, to which the jury may believe the person defrauded might and actually did give credit." And again he says, at page 326: "An allegation by speech is necessary to constitute false pretense." And again: "No false pretense made after the delivery of goods, can support an indictment for obtaining such goods by false pretenses. Then, also, pretenses must be predicated on some matter or thing pretended then to be in existence, but which in truth was not." People v. Conger, 1 Wheel. Crim. Cas. 448; Allen's Case, 3 City Hall Rec. 118; Ranney v. People, 22 N. Y. 413; Conger's Case, 4 City Hall Rec. 65; 1 Colby, Crim. L. 561

563.

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In 2 Russell on Crimes at page 288, it is said: "Barely asking another for a sum of money is not sufficient, but some pretense must be used and that pretense false, and the intent is necessary to constitute the crime."

Wharton in his work on Criminal Law (7th ed.) says: "There must be always something to show adequately that a party defrauded was induced to part with his property by relying upon the truth of the alleged statements." Section 2162. And again, at section 2113, he says: In certain cases "the conduct and acts of the party will be sufficient, without any verbal assertion. Where a man assumed the name of another to whom money was due, required to be paid by a genuine instrument, it was held indictable. And where a person at Oxford, who was not a member of the university, went for the purpose of fraud, wearing a com

moner's cap and gown and obtained goods, it was held within the act though not a word passed. And so where the defendant, an employé in a hospital, wrote to a manager for linen, not saying in words that it was for the hospital, but knowingly making that impression on the manager's mind." But in all of these cases it was by means of false token or writing.

Bishop, in his work upon Criminal Procedure, vol. 2, § 165, says that the allegation in the indictment that the money or other thing was obtained by means of false pretense, which are the statutory words, is not sufficient. The allegation must state what the pretenses were. People v. Moore, 37 Hun, 84.

Mere silence or suppression of the truth, a mere withholding of knowledge upon which another may act, is not sufficient to constitute false pretenses. People v. Baker, 96 N. Y. 340.

In prosecutions for false pretenses the evidence must show that the pretense complained of relates to a past event, or to some fact at present existing; and not to something that may happen in the future. And a false promise to do some particular act at some future time is not sufficient. Burrow v. State, 12 Ark. 65; Scarlett v. State, 25 Fla. 717; Keller v. State, 51 Ind. 11; Re Snyder, 17 Kan. 542; State v. De Lay, 11 West. Rep. 443, 93 Mo. 98; State v. Magee, 11 Ind. 154; Ranney v. People, 22 N. Y. 413; State v. Green, 7 Wis. 676; Com. v. Drew, 19 Pick. 179; Dillingham v. State, 5 Ohio St. 280; Johnson v. State, 41 Tex. 65; State v. Rowley, 12 Conn. 101; Lesser v. People, 12 Hun, 668; Reg. v. Pickup, 10 L. C. J. 310; Reg. v. Bertles, 13 U. C. C. P. 607; Reg. v. Giles, 10 Cox, C. C. 85; Rex v. Young, 3 T. R. 98; Reg. v. Lee, Leigh & C. 309; Reg. v. Jennison, Leigh. & C. 157; Reg. v. West, 8 Cox, C. C. 12; Rex v. Asterly, 7 Car. & P. 191; Rex v. Parker, 7 Car. & P. 825; Reg v. Gemmell, 26 U. C. Q. B. 314; Reg. v. Crab, 5 U. C. L. J. N. S. 21, 11 Cox, C. C. 85; Desty, Crim. L. 581.

§ 437. Intent to Defraud must be Shown.-To constitute the offense, there must have been an intent to defraud, in connection with a false representation calculated to mislead; it is an essential part of the offense. Com. v. Drew, 19 Pick. 179; Low v. Hall, 47 N. Y. 104; O'Connor v. State, 30 Ala. 9; Fay v. Com. 28 Gratt. 912; Brown v. People, 16 Hun, 535; Com. v. Jeffries, 7 Allen, 548, 83 Am. Dec. 712; Anable v. Com. 24 Gratt. 570; Trogdon v. Com. 31 Gratt. 872. See 2 Bishop, Crim. L. (6th ed.)

§ 471; Whart. Am. Crim. L. (8th ed.) § 1184; Desty, Am. Crim. L. 588.

The essence of the crime of obtaining property under false pretenses is the intent to deceive and defraud; and it is therefore competent to show that defendant acted only under a misapprehension of the facts, and not with a deliberate fraudulent intent. State v. Garris, 98 N. C. 733.

It is a well settled and rational rule that the false pretenses, in order to sustain an indictment, must be such that, if true, they would naturally and according to the usual operation of motives upon the minds of persons of ordinary prudence, produce the alleged results or in other words, that the act done by the person defrauded must be such as the apparent exigency of the case would directly induce an honest and ordinarily prudent person to do, if the pretenses were true. People v. Stetson, 4 Barb. 151. Hence, in order to convict a man of obtaining money or goods, etc., by false pretenses, it must be proved that they were obtained under such circumstances that the prosecutor meant to part with his right of property in the thing obtained, and not merely with the possession of it; if the prosecutor part with the possession only, and not the right of property, we have seen that the offense is larceny, and not an obtaining of the property by false pretenses. 2 Archb. Crim. Pr. & Pl. 467.

The intent to defraud is the 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. v. Tenney, 97 Mass. 50; Com. v. Mason, 105 Mass. 163. The offense is complete when the property or money has been obtained by such means; and would not be purged by subsequent restoration or repayment. Evidence of ability to make the repayment is therefore immaterial and inadmissible. Com. v. Coe, 115 Mass. 481.

In order to constitute the crime of obtaining property by false pretenses, it is not sufficient to prove the false pretenses, and that property was obtained thereby; but the evidence must show that the false pretenses were made with intent to cheat and defraud another. Another essential element of the crime, which the people in all cases of this kind are bound to establish, is that the

money was paid, or the property parted with in reliance upon and under the inducement of the false pretenses alleged. People v. Baker, 96 N. Y. 340; Scott v. People, 62 Barb. 71; Reg. v. Gard ner, 1 Dears. & B. C. C. 43; Therasson v. People, 82 N. Y. 240; Dilleber v. Home Ins. Co. 69 N. Y. 256; Ranney v. People, 22 N. Y. 417; People v. Tompkins, 1 Park. Crim. Rep. 239; People v. Conger, 1 Wheel. Crim. Cas. 448; People v. Blanchard, 90 N. Y. 314.

A representation, though false, is not within the statute against obtaining property, etc., by false pretenses, unless calculated to mislead persons of ordinary prudence and caution. People v. Williams, 4 Hill, 9, 40 Am. Dec. 258.

Upon the trial of an indictment for obtaining goods by means of false representations, it is not necessary that the prosecution should prove all the false representations alleged in the indictment. Where representations set forth in the indictmeut are proved, the sense in which they were used, and what was designed to be, and was understood from them, are questions for the jury. An indictment for false pretenses may be founded upon an assertion of an existing intention, although it did not in fact exist; there must be a false representation as to an existing fact. People v. Blanchard, 90 N. Y. 314.

In order to justify a conviction upon the trial of an indictment for false pretenses, it must appear that the prosecutor parted with his property, or signed the written instrument, as the case may be, by reason of some of the pretenses laid in the indictment, or if not solely by reason of such pretenses, that they materially influenced his action. Therasson v. People, 82 N. Y. 238.

So, where the property is obtained by false pretenses as to several things, and the prosecutor establishes as a fact that he was induced to part with his property by means of any one of the false inducements made, the conviction is supported. Com. v. Morrill, 8 Cush. 571; People v. Wakely, 62 Mich. 297; State v. Dunlap, 24 Me. 77; State v. Vorback, 66 Mo. 168; Cowen v. People, 14 Ill. 348; State v. Mills, 17 Me. 211; People v. Blanchard, supra; Beasley v. State, 59 Ala. 20.

There are numerous cases in the books of indictments under the statutes against fraud by false pretenses, and they are not all agreed in principle or result. Some of them seem to require more, and others less, of art or contrivance in the means of ac

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