Principal indictable in place of agent's act. § 1207. When the pretences were uttered in one place, and the goods obtained by an agent in another place, the principal may be tried in the latter place. Hence, as we have just seen, a non-resident principal, who in a foreign land utters a false pretence, is responsible in the land in which such false pretence is used to obtain goods by an agent under the principal's directions, though such principal was not personally present in the latter land until after the goods were obtained.2 §1208. Unless made so by statute, the common law doctrine of asportation has no application to cheats by asportation false pretences.3 13. Indictment." Doctrine of does not apply. Several defendants may be joined. § 1209. All the parties concerned in the offence may be joined as co-defendants. And, as has already been seen, evidence under a joint indictment that one of them, with the concurrence and approval of the other, made the false pretences charged, warrants the conviction of all." Parties who have concurred and assisted in the fraud may be convicted as principals, though not present at the time of making the pretence and obtaining the money or goods." Technical § 1210. An indictment averring that the defendant did "falsely and feloniously pretend," etc., is at common law bad. In those States, however, as in New York, where the offence averments is a felony, the averment is of "Designedly," when in the statute, must be inserted. The word "pretend" is indispensable, though the word "falsely," according 1 Supra, § 279. 2 Supra, §§ 248, 279; and also People v. Adams, and R. v. Garrett, supra, § 1203; R. v. Jones, 1 Den. C. C. 551; 4 Cox C. C. 198. course essential. necessary. 7 R. v. Moland, 2 Mood. C. C. 276.. See supra, § 223. Whart. Cr. Pl. &. Pr. §§ 221 et seq. 8 R. v. Walker, 6 C. & P. 657. 9 State v. Baggerly, 21 Tex. 757: 3 R. v. Stanbury, L. & C. 128; 9 See Wharton's Precedents, 528 et seq.,. Cox C. C. 94. 4 For Forms see Whart. Prec., 528 et seq. 1 Gabbet Cr. Law, 214, 215. as to the importance of this averment.. "Knowingly" is essential in Texas.. Maranda v. State, 44 Tex. 442. See, generally, infra, § 1224; Mathena v. 6 Supra, § 1171; Com. v. Harley, 7 State, 15 Tex. Ap. 473. Met. 462. VOL. II.-7 97 to the English practice, is not essential, the truth of the pretences being subsequently negatived. It is much safer, however, to insert it, and its omission has been held in this country fatal." § 1211. The party injured must be described with the same accuracy as has been shown to be requisite in larceny. Any variance in his name is at common law fatal. What are variances are elsewhere considered. Party injured must be de scribed as in larceny. Pretence to agent is principal. § 1212. Pretences alleged to have been made to a firm are proved by showing that they were made to one of the pretence to firm; and a pretence made use of to an agent, who communicates it to his principal, and who is influenced by it to act, is a pretence made to the principal. A pretence made to A. in B.'s hearing, by which money is obtained from B., may be laid as a pretence made to B. Money paid by or to an agent is rightfully laid as money paid by or to a principal. And so where money is paid to the wife for the husband." § 1213. The pretences must be specially averred, though their omission is now in England cured by verdict. But at common law they must be accurately and adequately set forth, so that it may clearly appear that there was a false pretence of an existing fact.11 Pretences must be averred specially. R. v. Airey, 2 East, 30. 2 Hamilton v. State, 16 Fla. 288. 3 See supra, § 977. 4 Whart. Cr. Ev. § 91. 5 Stoughton v. State, 2 Ohio St. 562. 6 Supra, § 1171; Whart. Cr. Ev. § 102; R. v. Lara, 1 Leach C. C. 647; 6 T. R. 565; Com. v. Call, 21 Pick. 515; Com. v. Harley 7 Met. 462. See, also, R. v. Keely, 2 Den. C. C. 68; R. v. Tully, 9 C. & P. 227; R. v. Dewey, 11 Cox C. C. 115; Com. v. Bagley, 7 Pick. 279; Com. v. Mooar, Thach. C. C. 410; Stoughton v. State, 2 Ohio St. 562; Britt v. State, 9 Humph. 31; Whart. Cr. Ev. §§ 91 et seq. 7 R. v. Dent, 1 C. & K. 249. 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. R. v. Dent, 1 C. & K. 249. 8 Whart. Cr. Ev. §§ 94-102. 9 R. v. Moseley, Leigh & C. 92. See R. v. Carter, 7 C. & P. 134; Sandy v. State, 60 Ala. 58. Infra, § 1227. 10 R. v. Mason, 2 T. R. 581; R. v. Henshaw, L. & C. 444; R. v. Goldsmith, 12 Cox C. C. 479; L. R. 2 C. C. 74; R. v. Jarman, 14 Cox C. C. 48; 38 L. T. N. S. 460; State v. Jackson, 39 Conn. 229. See People v. Cline, 44 Mich. 290. "Ibid.; R. v. Henshaw, L. & C. 144; § 1214. If the pretences explain themselves, and require no innuendoes,' it is enough to state them in the terms in which they 9 Cox C. C. 472; Bonnell v. State, 64 Ind. 498. See State v. Dickson, 88 N. C. 643; Hirshfield v. State, 11 Tex. Ap. 207. The pretences were held inadequately stated in an indictment in which the first count charged that C. unlawfully did falsely pretend to P. that he, C., was sent by W. for an order to go to T. for a pair of shoes, by means of which false pretence he did obtain from T. a pair of shoes, of the goods and chattels of T., with intent to defraud P. of the price of the said shoes, to wit, nine shillings, of the moneys of P. The second count charged that he falsely pretended to P. that W. had said that P. was to give him, the defendant, an order to go to T. for a pair of shoes, by means of which false pretence he did obtain from T., in the name of P., a pair of shoes of the goods of T., with intent to defraud T. of the same. R. v. Tully, 9 C. & P. 227-Gurney; though compare R. v. Brown, 2 Cox C. C. 348-per Patteson, J. An indictment was also held defective in a case where it was charged that C. falsely pretended to P., whose mare and gelding had strayed, that he, C., would tell him where they were, if he would give him a sovereign down. P. gave the sovereign, but the prisoner refused to tell. It was said that the indictment should have stated that he pretended he knew where they were. R. v. Douglass, 1 M. C. C. 462. In a case already cited on the merits, the indictment charged that C., contriving and intending to cheat P., on a day named, did falsely pretend to him that he, C., then was a captain in her Majesty's fifth regiment of dragoons; by means of which false pretence he did obtain of P. a valuable security, to wit, an order for the payment of £500, of the value of £500, the property of P., with intent to cheat P. of the same; whereas in truth he (C., the defendant) was not, at the time of making such false pretence, a captain in her Majesty's regiment; and the defendant, at the time of making such false pretence, well knew that he was not a captain. This was held sufficient after conviction and judgment. It was held not necessary to allege more precisely that the defendant made the particular pretence with the intent of obtaining the security; nor how the particular pretence was calculated to effect, or had effected, the obtaining; and it was further held that the truth of the pretence was well negatived, it appearing sufficiently that the pretence was that the defendant was a captain at the time of his making such pretence, which was the fact denied; and that it was unnecessary to aver expressly that the security was unsatisfied, at any rate since 7 Geo. IV. c. 64, s. 21, the objection being taken after verdict, and the indictment following the words of the statute creating the offence. R. (in error), 9 A. & E. (N. S.) 271; 10 Jur. 1028; 16 L. J. M. C. 9; 2 Cox C. C. 11. Hamilton v. D. was one of many persons employed whose wages were paid weekly at a pay-table. On one occasion, when D.'s wages were due, C. said to a little boy, "I will give you a penny if you will go and get D.'s money." The boy innocently went to the pay-table, I See infra, §§ 1220, 1303. were expressed to the prosecutor at the time of the fraud. But verbal exactness is not required, as it is enough if the effect be substantially given; nor need all that was said be stated if the operative pretence is averred. Substantial variance is fatal. But a variance between the indictment and the evidence as to the effect of the pretences, will be fatal. It is not necessary to set out, as in forgery, the tenor of a bad note by which property is obtained. But if set out, a variance may be fatal." In bargains relation of § 1215. The relation of the fraud to the bargain, in cases of sale, must appear. Thus it was held insufficient, in an indictment for the sale of a spurious watch as genuine, pretence to to aver merely that S., the defendant, falsely pretended to the prosecutor "that a certain watch which he, the said S., then and there had, was a gold watch, by means bargain must be averred. and said to the treasurer, "I am come for D.'s money:" and D.'s wages were given to him. He took the money to C., who was waiting outside, and who gave the boy the promised penny: it was ruled that C. could not be convicted on the charge of obtaining the money from the treasurer by falsely pretending to the treasurer that he, C., had authority from D. to receive his money, or of obtaining it from the treasurer and the boy, by falsely pretending to the boy that he had such authority, or of obtaining it from the boy by the like false pretences to the boy; though he might be convicted on a count charging him with fraudulently obtaining it from the treasurer by falsely pretending to the treasurer that the boy had this authority. R. v. Butcher, Bell C. C. 6; 8 Cox C. C. 77. 12 East P. C. c. 18, s. 13, pp. 837, 838. See Com. v. Hulbert, 12 Met. 446; Glackan v. Com., 3 Metc. (Ky.) 232; State v. Webb, 26 Iowa, 262; State v. Eason, 86 N. C. 674. Infra, § 1219. If they are not self-explaining, their meaning must be supplied. Infra, § 1220. 2 R. v. Scott, cited in R. v. Parker, 2 Mood. C. C. 1; 8 C. & P. 825; State r. Call, 48 N. H. 126. Infra, § 1219. In R. v. Powell, 51 L. T. N. S. 713, Huddleson, B., adopted from R. v. Giles, 34 L. T. 50, M. C., the following from Blackburn, J.: "It is not requisite that the false pretence be made by exact words if the idea be conveyed." As to wordless and obscure pretences see supra, § 1170. 3 R. v. Hewgill, Dears. C. C. 351; Cowen v. People, 14 Ill. 348. See Kirtley v. State, 38 Ark. 543. 4 Whart. Crim. Ev. § 131; R. v. Plestow, 1 Camp. 494; R. v. Bulmer, L. & C. 476; 9 Cox C. C. 492; R. v. Speed, 46 L. T. N. S. 177; Com. v. Pierce, 130 Mass. 31; State v. Locke, 35 Ind. 419; State v. Anderson, 47 Iowa, 142; Wallace v. State, 11 Lea, 542; Jones v. State, 8 Tex. Ap. 648; Marwilsky v. State, 9 Ibid. 377; Litman v. State, Ibid. 461; Kirtley v. State, 38 Ark. 543. 5 Infra, § 1217. 6 Infra, § 1233. 7 R. v. Reed, 7 C. & P. 848; R. v. Martin, L. R. 1 C. C. 56; State v. Philbrick, 31 Me. 401; Com. v. Jeffries, 7 Allen, 549; Enders v. People, 20 Mich. 233; State v. Orvis, 13 Ind. 569; State v. Anderson, 47 Iowa, 142. As to causal relations see supra, § 1175 et seq. whereof said S. then and there unlawfully, etc., did obtain from said B. (the prosecutor) sundry bank bills, etc.,. of the value, etc., with intent the said B. then and there to cheat and defraud of the same; whereas in truth and fact said watch was not then and there a gold watch, and said S. then and there well knew that the same was not a gold watch, to the damage," etc. "The indictment,' said Dewey, J., "does not allege any bargain nor any colloquies as to a bargain for a watch; nor any propositions of B. to buy or of the defendant to sell, a watch; nor any delivery of the watch, as to which the false pretences were made, in the possession of B., as a consideration for the money paid the defendant. It seems to us that when money or property is obtained by a sale or exchange of property, effected by means of false pretences, such sale or exchange ought to be set forth in the indictment, and that the false pretence should be alleged to have been with a view to effect such sale or exchange, and that by reason thereof the party was induced to buy or exchange, as the case may be." In In fine, when the case is one of sale or exchange, the indictment should set forth the sale or exchange, and aver that the false pretences were made with a view to effect such sale or exchange, and that by reason thereof the party was induced to part with his property; and when a false token or writing was the pretence, the indictment must aver that the defendant delivered the token or writing, to the prosecutor, who took it in exchange for the goods. New York the law is less stringent ; and where an indictment for obtaining property under false pretences charged that the prisoner, with an intent to defraud one A. G., Jr., did falsely pretend and represent to the said A. G., Jr., for the purpose of inducing the said A. G., Jr., to part with a yoke of oxen, of the goods and chattels of the said A. G., Jr., that," etc., "by which said false pretences he," the prisoner, "then did unlawfully obtain from the said A. G., 1 Com. v. Strain, 10 Met. 521; S. P., Philbrick, 31 Me. 401; Enders v. PeoCom. v. Lannan, 1 Allen, 590. ple, 20 Mich. 233. Com. v. Strain, supra. See Com. v. Nason, 9 Gray, 125; Com. v. Jeffries, 7 Allen, 549. As to bad pleading of false agency, see R. v. Henshaw, L. & C. 444. R. v. Reed, 7 C. & P. 848; State v. 4 Wagoner v. State, 90 Ind. 504. But see Baker v. State, 14 Tex. Ap. 332. Skiff v. People, 2 Parker, C. R. 139. See R. v. Martin, L. R. 1 C. C. 56; Com. v. Howe, 132 Mass. 250; State v. Jordan, 34 La. An. 1219. |