order to convict the defendants in such case, to prove that they, either of them, obtained the goods on their own account, or derived, or expected to derive, personally, any pecuniary benefit therefrom.1 And, generally, the delivery of goods or money to a third person on account of the defendant, is a delivery to the defendant.2

Confeder

acy must

be first

shown.

§ 1172. The prosecutor, however, cannot prove false pretences made by a third person, alleged to have been made by the procurement of the defendant, without first showing that the defendant instigated such person to make them ;3 nor can the defendant, who fraudulently negotiates spurious paper, be convicted under the statute for the subsequent act of the purchaser of such spurious paper, done innocently and without the defendant's knowledge or instigation, in obtaining money on such paper.

Promises

6. They must relate to a Past or Present State of Things. § 1173. A false pretence, under the statute, must relate to a past event or existing fact. Any representation with regard to a future transaction is excluded. Thus, for instance, a false statement, that a draft, which the defendant exhibits to the prosecutor, has been received

made. It was held, that the acts of P. were the acts of K., and admissible against him upon the indictment. R. v. Kerrigan, 9 Cox C. C. 441.

1 Infra, § 1184; Com. v. Harley, 7 Met. 462; R. v. Moland, 2 Mood. C. C. 271; Cowen v. People, 14 Ill. 348; but see infra, § 1202.

An indictment charged the prisoner with attempting, by false pretences made to J. B. and others, to defraud the said J. B. and others of certain goods, the property of the said J. B. and others. On the trial, it was proved that the prisoner made the false pretences set forth in the indictment to J. B. only, with intent to defraud J. B. and others, his partners, of property belonging to the firm; and it was held that there was no variance between the indictment and the proof, as the words,

or predic

tions are

not false

pretences.

"and others," in the allegation that the false pretence was made "to J. B. and others," might be rejected as surplusage. R. v. Kealey, 1 Eng. L. & Eq. 585; 2 Den. C. C. 68.

2 Sandy v. State, 60 Ala. 58. Infra, § 1227.

Per Bronson, C. J., People v. Parish, 4 Denio, 153. • Infra, § 1202.

5 R. v. Lee, L. & C. C. C. 309; R. v. Goodhall, R. & R. 461; R. v. Woodman, 14 Cox C. C. 179; R. v. Burgon, D. & B. 11; Burrell, ex parte, L. R. 1 Ch. D. 552; Sawyer v. Prickett, 19 Wal. 146; Long v. Woodman, 58 Me. 49; Com. v. Stevenson, 127 Mass. 446; Com. v. Drew, 19 Pick. 179; People v. Blanchard, 90 N. Y. 314; Com. v. Moore, 99 Penn. St. 570; Dillingham v. State, 5 Ohio St. 280; Colly v. State, 55 Ala.

from a house of good credit abroad, and is for a valuable consideration, on the faith of which he obtains the prosecutor's goods, is within the law; a promise to deposit with him such a draft at some future time, though wilfully and intentionally false, and the means of the prosecutor's parting possession with his property, is not. So a pretence that the party would do an act that he did not mean to do (as a pretence that he would pay for goods on delivery) was ruled by all the judges not to be a false pretence, within the statute of Geo. II.; and the same rule is distinctly recognized in this country, it being held that the statement of an intention is not a statement of an existing fact. Thus, to take as an illustration an English case, on an indictment for obtaining goods in a market by falsely pretending that a room had been taken at which to pay the market people for their goods, the jury found that the well-known practice was for buyers to engage a room at a public house, and that the prisoner conveyed to the minds of the market people that she had engaged such a room, and that they parted with their goods on such belief. It was held, there being no evidence that the prisoner knew of such a practice, and the case being consistent with a promise only on her part to engage such a room and pay for the goods there, that a conviction could not be sustained."

§ 1174. But a concurrent promise does not neutralize an accompanying false pretence. If there be the false statement of an existing

85; State v. Evers, 49 Mo. 542; Ryan v. State, 45 Ga. 128; Keller v. State, 51 Ind. 111; Gage v. Lewis, 68 Ill. 604; Canter v. State, 7 Lea, 349; Snyder, in re, 17 Kans. 542; McKenzie v. State, 6 Eng. (Ark.) 594; Johnson v. State, 41 Tex. 65. See, as conflicting with this rule, State v. Nichols, 1 Houst. C. C. 114.

1 R. v. Goodhall, R. & R. 461; R. v. Wakeling, Ibid. 504; R. v. Oates, Dears. C. C. 459; 29 Eng. L. & Eq. 552. See Glackan v. Com., 3 Metc. (Ky.) 232.

2 Com. v. Drew, 19 Pick. 179; Com. v. Lincoln, 11 Allen, 233; People v. Haynes, 11 Wend. 565; 14 Ibid. 546; Com. v. Burdick, 2 Barr, 163; Burrow v. State, 7 Eng. (Ark.) 65; Glackan

v. Com., 3 Metc. (Ky.) 232. Supra, § 1136.

Ibid.; People v. Blanchard, 90 N.

Y. 314.

4 R. v. Burrows, 11 Cox C. C. 258.

Where the prosecutor lent £10 to the prisoner, induced by his false pretence that he was going to pay his rent, and the proof was that if the prisoner had not told him that he was going to pay his rent the prosecutor would not have lent the money; it was held that this was not such a false pretence of an existing fact as to warrant a conviction. R. v. Lee, 9 Cox C. C. 304.

5 See R. v. Burgon, D. & B. 11: 7 Cox C. C. 131; State v. Hill, 72 Me. 238; State v. Cowdin, 28 Kan. 269.

pre

But false

pretence is tralized by

not neu

concurrent promis >.

fact, the adding to this of false promises does not take the case out of the statute, when the false pretence was the decisive influence. And this holds, even though the prosecutor would not have yielded to the pretence without the promise. And it is even said by Crompton, J., that the tence need not necessarily be of some alleged existing fact, capable of being disproved by positive testimony, but may depend on the bond fide intention and capacity of the defendant at the time of entering into a contract to perform it, or to do some act at a future period. Hence, as we have seen, it may be a false pretence to utter a post-dated cheque.

Unless ope

statute.

7. They must have been the Operative Cause of the Transfer. § 1175. Where, in Massachusetts, one of the representations proved was that the defendant gave a false name, and where the prosecutor testified that this misrepresenta- rative, not tion had no influence in inducing him to part with his within goods, it was held to have been the duty of the court, either at the time or in the charge, to instruct the jury that such misrepresentation was not, upon the evidence, proved to have been an inducing motive to the obtaining of the goods by the defendant." The same view generally obtains, it being held that there must be causal relation between the pretence and the transfer."

1 R. v. Jennison, Leigh & Cave, lwl; 9 Cox C. C. 158; R. v. West, 8 Id. 12; R. v. Asterley, 7 C. & P. 19; Com. v. Lincoln, 11 Allen, 233; Stare r. Rowley, 12 Conn. 101. Of this privciple a striking illustration is given, supra, § 1163; and as to promises to marry, see supra, § 1148.

6 R. v. Dale, 7 C. & P. 352; Horsfall v. Thomas, 1 H. & C. 90; People v. Miller, 2 Parker C. R. 197; R. v. Larner, 14 Cox C. C. 497; Therasson v. People, 82 N. Y. 238; People v. Baker, 96 Ibid. 340; State v. Tomlin, 5 Dutch. 14; State v. Timmons, 58 Ind. 98; People v. McAllister, 49 Mich. 12. In

2 R. v. West, 8 Cox C. C. 12; R... fra, § 1227. Fry, 7 Ibid. 394; D. & B. 449.

3 R. v. Jones, 6 Cox C. C. 467. • Supra, § 1162.

The cases usually given on this point are those where the prosecutor was, at the time when the false pretence was uttered, fully aware of its falsity. Suppose, however, he was firmly convinced, before the utterance, of the truth of the statements of which the false pretence consisted, and that the

5 R. v. Dale, 7 C. & P. 352; Com. v. Davidson, 1 Cush. 33; Clark v. People, 2 Lans. 329. See R. v. Gardner, 7 Cox C. C. 136; D. & B. 40; Com. v. Drew, 19 Pick. 179; Com. v. Herschell, Thacher's C. C. 70; Schleisinger ». false pretence in no way confirmed or State, 11 Ohio St. 669.

strengthened him in this belief; can it

§ 1176. But it is not necessary to a conviction that the false pretence alleged should have been the sole inducement not be the by which the property in question is parted with, if it had a preponderating influence sufficient to turn the scale, although other considerations operated upon the mind of the party. And this is true even though the prosecutor would not have surrendered the goods solely on the pretence alleged. To require that the belief should be the exclusive motive

would exclude conviction in any case; for in no case is any motive exclusive.1

Must have

been before bargain

closed.

§ 1177. If the pretences were not made use of until after the bargain was consummated, it cannot be said, with truth, that it was by force of them the property was obtained. Thus, in a New York case, a purchase of merchandise was made, the goods selected, put in a box, and the name of the purchaser and his place of residence marked thereon, and the box containing the goods put on board a steamboat designated by the purchaser, to be forwarded to his residence: it was held that the sale was complete at this point, and the goods became the property of the purchaser. Hence, where, after such delivery, the vendor, on receiving information inducing him to suspect the solvency of the purchaser, expressed an intention to reclaim the goods, and the purchaser thereupon made representations in respect to his ability to pay, by means of which the vendor abandoned his intention, and the purchaser was then indicted, charged with the offence of having obtained the goods by false pretences, these representations being the alleged false pretences; it was ruled that the sale being complete before the representations were made, the defendant could not be considered guilty of the crime charged against him.3 So where a carrier, having ordered a cask of ale, said, after he had possession of it, "This is for W.:" it was held that an indictment for obtaining it by falsely pretending that he was sent for it by W. could not be sustained."

Until the bargain is closed and property passed no goods are obtained."

Verifica

tion by

prosecutor

§ 1178. When the prosecutor resorts to verification, this may be a defence. The prisoner offered a chain in pledge to a pawnbroker, falsely and fraudulently stating that it was a silver chain, whereas in fact it was not silver, but was made of a composition worth about a farthing an ounce. The pawnbroker tested the chain, and finding it withstood the test, he, relying on his own examination and test of the chain,

1 Supra, § 119.

2 R. v. Jones, 15 Cox C. C. 475; 50 L. T. (N. S.) 726; State v. Church, 43 Conn. 471; State v. Vanderbelt, 3 Dutch. 328; State v. Tomlin, 5 Ibid. 14. VOL. II.-6

may be a

defence.

3 People v. Haynes, 11 Wend. 565; 14 Ibid. 546. See R. v. Dale, 7 C. & P. 352. Infra, § 1227.

4 R. v. Brooks, 1 F. & F. 502.

5 See Whart. on Cont. §§ 5 et seq. 81