Jr.," the oxen mentioned; it was held that there was a substantial averment that the prisoner had obtained the property from the prosecutor by means of the false pretences made, and the latter's belief therein, and that the indictment was not defective in that particular.1 J.Clark v. People, 2 Lansing, 330. See to sanie effect, State v. Vanderbilt, 3 Dutch 328; State v. Alphonse, 34 La. An. 9; Baker v. State, 14 Tex. Ap. 332. Infra, § 1227. An indictment alleged that G. de signedly and unlawfully did pretend to N. that A. wanted to buy cheese of N. and had sent G. to buy it for him, and that a certain paper described, purporting to be a ten dollar bill on the Globe Bank, in the city of New York, was a good bill, and of the value of ten dollars; by means of which false pretences said G. unlawfully obtained from said N. forty pounds of cheese, of the value of four dollars, and sundry bank bills and silver coins amounting to and of the value of six dollars, with intent to cheat and defraud; whereas the said A. did not want to buy cheese of said N., and had not sent G. to him for that purpose, and the paper was not a good bill of the Globe Bank, in the city of New York, and was not of the value of ten dollars, but spurious and worthless. It was held, on motion in arrest of judgment, that the false pretences set forth were such as might have been effectual in accomplishing a fraud on N., in the manner alleged; that neither the omission to allege that G. knowingly made the false pretences, nor the omission to mention any person whom he intended to defraud, rendered the indictment bad; and that there was no objection to the indictment on the ground of duplicity. Com. v. Hulbert, 12 Met. 446. In Com. v. Coe, 115 Mass. 481, an in dictment was sustained which alleged that the defendant falsely pretended that a certain certificate of shares of corporate stock was good and genuine, and of value as security for a loan of money which J. F., the prosecutor, was 'induced to make to him thereon. The pretended certificate was then set forth, and purported to be a certificate that the said J. F. was the owner of the shares of stock which it represents. "The offer of the certificate for such a purpose," said Wells, J., "is a representation that it is what it purports to be upon its face. Cabot Bank v. Morton, 4 Gray, 156. Com. v. Stone, 4 Met. 43. The indictment sufficiently sets forth in what manner Ferris was defrauded by means of the certificate." It was further held that the "certificate is an instrument complete in itself, and requires no further allegations to fully set forth the right or contract of which it is a symbol, as was necessary in Commonwealth v. Ray, 3 Gray, 441, and Commonwealth v. Hinds, 101 Mass. 209. And besides, this offence consists in the use of false tokens, and not the forgery of a written instrument." It was also held " unnecessary that the indictment should set forth in its terms, or by description, the cheque received for the loan. It is presumed to have been given and received as payment of the sum of money agreed to be lent. Its designation as a 'cheque and order for the payment of money' sufficiently indicates its character; and as a description of the property obtained Defend ant's alleproperty gation of § 1216. The amount of property stated by the defendant to belong to him must be proved as laid. Thus, where the averment was that the defendant represented a firm, of which he was a member, to be then owing not more than three hundred dollars, and evidence was given of a representation by him that the firm did not then owe more than four hundred dollars; this was held to be a fatal variance.1 must be proved as laid. Spurious or bad note or coin need not be set A pretence that the defendant "had in Macon seven thousand dollars" has been held not sustained by proof of a pretence "that he had seven dollars less than seven thousand in a bank in Macon." § 1217. In an indictment setting forth that a bad and spurious note or coin had been passed by the prisoner on the prosecutor, it is not necessary to set forth the note at large or specifically to describe the coin. "When the setting out the instrument in the indictment," said Wilde, C. J., "cannot afford the court information, it is unnecessary that it should be set out. Here it is alleged that a certain piece of paper was unlawfully and falsely represented by the prisoner to be a good and valid promissory note, whereas it was not so. It appears to me that all the cases show that where the instrument has been required to be set out in the indictment, something has turned on the construction of the paper." But the purport or generic desig by the false pretences, would be good. Commonwealth, v. Brettun, 100 Mass. 206." It may also be considered as settled by the same court that a false pretence is none the less a fraud because obtained in the form of a loan. Commonwealth v. Lincoln, 11 Allen, 233; Com. v. Coe, 115 Mass. 481. An indictment alleging that the prisoners falsely pretended to A. that some soot which they then delivered to A. weighed one ton and seventeen cwt., whereas it did not weigh one ton seventeen cwt., but only weighed one ton and thirteen ewt., they well knowing the pretence to be false, by means of which false pretence they obtained from A. out at 8s., with intent to defraud, is good, 2 O'Connor v. State, 30 Ala. 9. Supra, §§ 1129, 1162; infra, § 1222; R. v. Coulson, 1 Den. C. C. 592; 4 Cox C. C. 227; T. & M. 332; State v. Boon, 4 Jones (N. C.), 463; State v. Dyer, 41 Tex. 520. See Baker v. State, 14 Tex. Ap. 332. 4 R. v. Coulston, ut supra. Where it is charged in the indictment that the prisoner obtained the property upon the security of his promissory nation must be accurately stated. Thus if an indictment for attempting to obtain money under false pretences charge the attempt to have been by means of a paper writing purporting to be an order for money, and the instrument as stated in the indictment cannot be considered to be such an order, it is bad." § 1218. It is not necessary to prove the whole of the pretences charged; proof of part, and that the property was ob tained by force of such part, is enough. And the principle derives support from the practice in the analogous cases of perjury and blasphemy. When pretences are divisible. only part need be proved. Verbal accuracy not required. averred." Innuendoes and defini § 1219. As has been already seen, if the effect of the pretences be rightly laid, a variance as to expression is immaterial." But the offence must be substantially uttered, without un § 1220. When the false pretences consist in words used by the respondent, it has been said to be sufficient to set them out in the indictment as they were dertaking to explain their meaning. But this must be taken with some qualification, since, as in perjury and libel, it is proper and necessary that language otherwise tions propplanation is required. er when ex note, through false and fraudulent representations as to his ability to pay the same, an averment of his neglect to make payment of the note is not essential. Clark v. People, 2 Lansing, 330. 1 Com. v. Stone, 4 Met. 43; Com. v. Coe, ut supra. Infra, § 1233. 2 R. v. Cartwright, R. & R. 106. See fully, Whart. Cr. Pl. & Pr. §§ 184 et seq. R. v. Hill, R. & R. 190; R. v. Ady, 7 C. & P. 140; R. v. Hewgill, Dears. 315; 24 Eng. L. & Eq. 556; R. v. English, 12 Cox C. C. 171; State v. Mills, 17 Me. 211; State v. Dunlap, 24 Ibid. 77; Com. v. Morrill, 8 Cush. 571; People v. Stone, 9 Wend. 182; People v. Haynes, 11 Ibid. 565; Skiff v. People, 2 Parker C. R. 139; People v. Oyer & Terminer Court, 83 N. Y. 436; People v. Blanchard, 90 Ibid. 314; Com. v. Daniel, 2 Pars. 333; Britt v. State, 9 Humph. 31; Cowen v. People, 14 Ill. 348; Beasley v. State, 59 Ala. 20; Smith Lord Raym. 886; 2 Camp. 138-9; Cro. C. C. 7th ed. 662; State v. Haskall, 6 N. H. 352; Com. v. Kneeland, 20 Pick. 206. Infra, § 1316. Supra, § 1214; State v. Vanderbilt, 3 Dutch. 328; State v. Goble, 60 Iowa, 447. State v. Lambeth, 80 N. C. 393. 7 State v. Call, 48 N. H. 126. See Skiff v. People, 2 Parker C. R. 139. In a case already cited to another point, the 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 unintelligible should be explained for the instruction of the court.1 Otherwise a court in error or arrest of judgment could not say that the pretences constitute an indictable offence. Description §1221. The description of property obtained is required to be the same as in larceny. But unless required by statute the indictment need not allege that the property was of any particular value. When, however, the punishment depends of property upon value, some value should be alleged, a variance as to such value being immaterial if within the statute." If a signature to negotiable paper be obtained, it must be stated as such." to be as in larceny. An indictment need not state all the property which the defendant obtained by the false pretences set forth.7 must be individ uated. § 1222. The property obtained must be identified so as to protect the defendant in case of a second prosecution. Thus, Property where an indictment for obtaining the signature of a per- obtained son to a deed of land did not allege that the grantor in the deed owned or claimed any title to the land conveyed thereby, and a description of the land was in the most general terms, as certain land in the State of Texas and United States of America, and the date of the deed was nowhere averred, so that it would be impossible to identify the instrument; and it did not appear that the deed would tend to the hurt or prejudice of the grantor, and there was no averment that the deed could not be more particularly entitled to five pounds from the society by virtue of their rule, in consequence of the death of his wife; by means of which "last false pretence" he obtained money; this was held good. R. v. Dent, 1 C. & K. 249. I See People v. Oyer & Terminer Court, 83 N. Y. 436. 2 See supra, § 977; and see Com. v. Howe, 132 Mass. 250; State v. Kube, 20 Wis. 217; Treadaway v. State, 37 Ark. 443; Jamison v. State, Ibid. 445; Ladd v. State, 17 Fla. 215. That a description as a "certain lot of dry goods" is inadequate, see Redmond v. State, 35 Ohio St. 81. People v. Stetson, 4 Barb. 151-2; State v. Gillespie, 80 N. C. 396; Whart. Supra, §§ 882, 951 et seq.; Whart. 5 Supra, §§ 951 et seq. State v. Blauvelt, 38 N. J. 396. Supra, § 1195. "Cheque for the payment of money" is a sufficient description. Com. v. Coe, 115 Mass. 481. But see Bonnell v. State, 64 Ind. 498. 1 Com. v. Davidson, 1 Cush. 33; People v. Parish, 4 Denio, 153. See Skiff v. People, 2 Parker C. R. 139. 8 Baker v. State, 31 Ohio St. 314. described, it was held, that in these particulars the indictment was defective. Goods, as a rule, should be described with the same particularity as in larceny." § 1223. It is necessary to state whose the property was at the time. "Of the moneys of B." is a sufficient allegation A special property is sufficient to sus Owner must be of ownership. stated. Pretences must be negatived. tain an averment of ownership." § 1224. It is necessary for the pleader to negative specifically the false pretences relied on to sustain the indictment ;6 but if the proof be adequate as to the offence, though only coming up to a portion of the pretence averred in the indictment, a conviction is good. In fact, as is well said by Lord Ellenborough, " to state merely the whole of the false pretence is to state a mattter generally combined of some truth as well as falsehood." Where, however, there are several distinct pretences, it is better to negative each pretence specifically in the indictment; since if only one of the pretences thus negatived, be well laid, and be 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.9 1 Dord v. People, 9 Barb. 671. State v. Reese, 83 N. C. 637. 3 R. v. Martin, 3 N. & P. 472; 8 Ad. & El. 481; R. v. Norton, 8 C. & P. 196; Sill v. R., Dears. C. C. 132; 1 El. & Bl. 553. See State v. Lathrop, 15 Vt. 279; Halley v. State, 43 Ind. 509; State v. Levi, 41 Tex. 563. Under 8 & 9 Vict. c. 109, s. 17, an indictment charging that the prisoner, by fraud in playing at cards, did win from A. a sum of money with intent to cheat A., need not necessarily allege that the money won was the property of A. R. v. Moss, Dears. & B. C. C. 104. But an indictment for a conspiracy to obtain goods by false pretences, not stating whose property the goods were which it was the object of the conspiracy to obtain, is bad in Supra, §§ 932 et seq.; Mack v. State, 63 Ala. 138. 6 R. v. Perrott, 2 M. & S. 379; Redmond v. State, 35 Ohio St. 81; Tyler v. State, 2 Humph. 37; Amos v. State, 10 Ibid. 117; State v. Webb, 26 Iowa, 262. The negation must be specific. Keller v. State, 51 Ind. 111; State v. Bradley, 68 Mo. 140. 7 Supra, § 1218; R. v. Hill, R. & R. 190; Com. v. Morrill, 8 Cush. 571; People v. Stone, 9 Wend. 182; People v. Haynes, 11 Ibid. 565; State v. Smith, 8 Blackf. 489. SR. v. Perrott, ut supra. 9 See Whart. Crim. Ev. §§ 131-3. Supra, § 1218. |