If the construction should be narrowed to cases which might be guarded against by common prudence, the weak and imbecile, the usual victims of these pretenses, would be left unprotected. State v. Mills, 17 Me. 211.

It is none the less a false pretense because the party imposed on might, by common prudence, have avoided the imposition. Com. v. Henry, 22 Pa. 253.

The object and purpose of the law is, to protect all persons alike, without regard to the single capacity to exercise ordinary caution, a condition of mind very difficult of definition, and certainly of very different meaning under the various circumstances that may surround the person supposed to exercise it. Thus, a child entrusted with a watch, money or other valuables, to be borne to an artificer, merchant or friend might be induced by the most flimsy and self-apparent falsehoods, to part with it; still, if these representations were of a character to secure the credit of the child and deprive it of the possession of the goods, however absurd such representations might seem to the more mature and experienced, yet it would be such false pretenses by one person to another as deprived that other of his personal property, as contemplated by the letter and spirit of the law. Bowen v. State, 9 Baxt. 45, 40 Am. Rep. 71.

§ 442. Distinction between Larceny and False Pretenses.The distinction between the two crimes is sometimes very narrow, but yet it is well defined. Where, by means of fraud, conspiracy or artifice, possession of the property is obtained with felonious intent and the title still remains in the owner, larceny is established; while the crime is false pretenses if the title as well as the possession is absolutely parted with.

In Com. v. Barry, 124 Mass. 325, there was evidence that as A was passing a bar-room, the defendant, a girl, called him in, and he, at her request, gave her money to buy a bottle of brandy; they went upstairs together, and she said this bottle would not be enough for the night, and asked for more money with which to buy another bottle. A thereupon gave her a twenty-dollar bill to get a quart of brandy, the price of which was $3, not expecting to receive the bill back, but the change after deducting the price of the brandy; the defendant went out, and soon returned with another girl, saying she could not get it; the other girl said she knew where to get it, and the two girls went out, and he saw

no more of them or his money. Upon this evidence the supreme court of Massachusetts had no difficulty in holding the defendant properly convicted of larceny.

In the case of Loomis v. People, 67 N. Y. 322, 23 Am. Rep. 123, it appeared that Lewis, one of the prisoners, made the acquaintance of Olason, the prosecutor, and under the pretense that he had a check for $500 he desired to get cashed at a bank, invited Olason to go with him; he led him into a saloon, where was the prisoner Loomis, a confederate of Lewis. Lewis proposed to Loomis to throw dice; they did so for $5, and Loomis lost; they then proposed to throw for $100. Lewis asked Olason to lend him $90, saying, "I am sure to beat him again, and you can have your money back. If I do lose I have got the check for $500, and we will go up to the bank and get the check cashed, and you can have the money." Olason let him have the $90, the dice were thrown, and Lewis lost. Olason insisted on the return of his money; the purported check was then put up against $100, and Lewis again lost; Loomis and Lewis thereupon went away. The court charged the jury that if satisfied, that the two prisoners conspired fraudulently to obtain the complainant's money, and to convert it absolutely without his consent, they could convict of larceny; and it was held no error, and that the evidence was sufficient to sustain the conviction, the court observing: "It was a clear case of larceny. . . . The form of throwing the dice was only a cover, a device and contrivance to conceal the original design and so long as there was no consent to part with the money, does not change the real character of the crime. While the element of trespass is wanting, and the offense is not larceny where consent is given, and the owner intended to part with his property absolutely, and not merely with a temporary possession of the same, even although such consent was procured by fraud, and the person obtaining it had an animus furandi; yet, as is well said by a writer upon criminal law: 'It is different where, with the animus furandi, a person obtains consent to his temporary possession of property, and then converts it to his own use. The act goes farther than the consent, and may be fairly said to be against it. Consent to deliver the temporary possession is not consent to deliver the property in a thing, and if a person, animo furandi avails himself of a temporary possession for a specific purpose, obtained by consent, to convert the property in the thing to himself, and defraud

the owner thereof, he certainly has not the consent of the owner. He is, therefore, acting against the will of the owner, and is a trespasser because a trespass upon the property of another is only doing some act upon that property against the will of the owner." "

§ 443. Examination of the English Rule.-"By 24 and 25 Vict., chap. 96, § 88, whosoever shall, by any false pretense obtain from any other person any chattel, money, or valuable security, with intent to defraud, shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servitude for the term of three (now five) years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confine

ment.

"By the same section it is provided 'that if, upon the trial of any person indicted for such misdemeanor, it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor, and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts.'

"By the same section, 'provided also, that it shall be sufficient in any indictment for obtaining, or attempting to obtain, any such property by false pretenses to allege that the party accused did the act with intent to defraud, without alleging any intent to defraud any particular person, and without alleging any ownership of the chattel, money, or valuable security, and on the trial of any such indictment, it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to prove that the party accused did the act charged with an intent to defraud."" 2 Roscoe, Crim. Ev. (8th ed.) *497.

On an indictment for obtaining goods by false pretenses, the government is not held to proof of all the pretenses alleged. See cases cited in 2 Bishop, Crim. Proc., §§ 165-171. But if there is no variance in such case, it certainly would savor of great refinement to hold that there is a variance when the indictment charges a conspiracy to obtain the goods by several false pretenses, and only one is proved. The ground taken in argument is, that in the latter case the agreement between the conspirators is not proved as laid. But the means by which the cheating is to be accomplished are not necessarily to be held to be indivisible. The

specification of them is required in our practice, in cases where the purpose itself of the alleged conspiracy is not criminal or unlawful, in order that it may appear that the means contemplated to carry it out are criminal and unlawful.

According to the practice in England, as we gather from the course of the decisions, it is not necessary to set out the contemplated means for effecting the cheat. Rex v. Gill, 2 Barn. & Ald. 204; Reg. v. Gompertz, 9 Q. B. 824; Sydserff v. Reg. 11 Q. B. 245; Latham v. Reg. 5 Best. & S. 635. But in order to give needed information to the court and to the defendant, where there is merely a general charge of a conspiracy to obtain goods by false pretenses, a specification of particulars is ordered by the court, if moved for. Reg. v. Kenrick, 5 Q. B. 49; Rex v. Hamilton, 7 Car. & P. 448; Reg. v. Brown, 8 Cox, C. C. 69. In Massachusetts, as in others of the United States, it is held that this information should be given in the indictment, in cases where the purpose of the conspiracy itself does not appear to be criminal or unlawful, and that this rule applies to conspiracies to cheat, as cheating is not necessarily criminal or unlawful. Com. v. Hunt, 4 Met. 111; Com. v. Eastman, 1 Cush. 189, 48 Am. Dec. 596; Com. v. Shedd, 7 Cush. 514; Com. v. Wallace, 16 Gray, 221.

444. Partial Review of the Authorities.-In Loomis v. People, 67 N. Y. 329, 23 Am. Rep. 123, it is stated: "Where, by fraud, conspiracy, or artifice, the possession is obtained with a felonious design, and title still remains in the owner, larceny is established. Where title as well as possession is absolutely parted with, the crime is false pretenses." Compare Whart. Am. Crim. L. (9th ed.), §§ 964, 965, and Kellogg v. State, 26 Ohio St. 15.

In People v. Clough, 17 Wend. 351, 31 Am. Dec. 303, false pretenses were used to obtain charity, and it was held that the obtaining money by the applicant for that purpose by such means was not a criminal offense, as they called upon the donor to perform a moral duty, arising out of compassion, and that the statute was designed only to protect persons in their commercial dealings; and in People v. Thomas, 3 Hill, 169, the false pretenses induced the performance of a legal duty, and for that reason constituted no criminal offense.

In Virginia, the statute makes the obtaining of money or other property by any false pretense, larceny. In that state, the court

holds that an indictment for the offense may be either in the form of an indictment for larceny at common law, or by charging the specific facts which the act declares shall be deemed larceny. Leftwich v. Com. 20 Gratt. 716; Dowdy v. Com. 9 Gratt. 727, 734, 60 Am. Dec. 314.

If any of the pretenses are false, to which persons of ordinary caution would give credit, it is sufficient. People v. Haynes, 11 Wend. 557; People v. Thomas, 23 N. Y. 321. Any false pretense, which induces confidence, is sufficient. Thomas v. People, 34 N. Y. 352; Smith v. People, 47 N. Y. 303.

Under the common law a false bank check is not a false token. Com. v. Speer, 2 Va. Cas. 65; Com. v. Swinney, 1 Va. Cas. 146; Rex v. Lara, 6 T. R. 565; Rex v. Flint, Russ. & R. 460; State v. Justice, 13 N. C. 199; State v. Stroll, 1 Rich. L. 244; Whart. Am. Crim. L. §§ 2061, 2065; 2 Russell, Crimes, 285, 286; 3 Archb. Crim. Pr. & Pl. 473, and notes by Waterman.

Even where the evidence shows that the accused had both the intention and the ability to pay for the articles purchased, a conviction must follow. The act is not bereft of its criminality by evidence of intent or ability to pay. Com. v. Coe, 115 Mass. 481; Com. v. Mason, 105 Mass. 163. It is not of the essence of the misdemeanor that the defendant should be unable to restore that which he wrongfully obtains. If, by a false pretense, he had procured the loan of $500 in bank notes, his ability to refund the money would not shield him, and it would not be necessary to aver his inability to repay. State v. Fletcher, 35 N. J. L. 445.

In the English case of Reg. v. Bryan, 1 Dears. & B. C. C. 265, decided in 1867, the prisoner succeeded in obtaining a substantial loan from a pawnbroker on some very inferior spoons by fraudulently and falsely representing them to be as good as "Elkington's A," spoons, to have as much silver on them, that the foundations were of the best material, etc. It was held, however, that he could not be convicted of obtaining money by false pretenses, because his statements were in the nature of "mere praise or exaggeration, or puffing."

"It seems to me," said Lord Campbell, Ch. J., "it never could have been the intention of the legislators to make it an indictable offense for the seller to exaggerate the quality of that which he is selling, any more than it would be an indictable offense for the purchaser, during the bargain, to depreciate the quality of the