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Precedents of indictments and pleas, adapted to the use both of the courts of the United States and those of all the several states; together with notes on criminal pleading and practice, embracing the English and American authorities generally (Volume 1) online

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a single man or an unmarried man, nor was he, at either of
those times or at any other time, entitled to bring or maintain
an action for breach of the said promise of marriage against the
said A. C, etc., against, etc. {Conclude as in hook 1, chapter 3.)

(547a) Pretence that a certain coat was a particular uniform^ etc.

The jurors for, etc., upon their oath present, that J. F. B., on,
etc., unlawfully and knowingly did false'ly pretend unto S. C, a
station-master in the employment of the L., B., and S. C. E.. Co.,
that the great-coat which he, the said J. F. B., then handed to
the said S. C. was the same great-coat, and part of the uniform
clothing which had been supplied to him the said J. F. B. by
the said company. By means of which said false pretences the
said J. F. B. did then unlawfully obtain from the said S. C. one
pound in money, with intent to defraud. Whereas, in truth and
in fact, the said great-coat was not the same great-coat, nor did
it form part of the uniform clothing which had been supplied to
him the said J. F. B. by the said company, against, etc.(/)
{Conclude as in book 1, chapter 3.)

(/) It appeared in evidence on tlie trial of this indictment that the prisoner,
J. F. B., on entering the service of the said company, signed a book of rules, a
copy of which vyas given to him. One of the rules was: "No servant of the
company shall be entitled to claim payment of any wages due to him on leaving
the company's service until he shall have delivered up his uniform clotliing."
On leaving the service the prisoner knowingly and fraudulently delivered up to
an officer of the company, as part of his own uniform, a great-coat belonging to
a fellow servant, and so obtained the wages due to him. It was held, that the
defendant was properly convicted of obtaining the money by false pretences.
R. V. Bull, 13 Cox, C. C. 608.

VOL. I.— 35 545



(548)



OFFENCES AGAINST PROPERTY.



(548) Pretence that defendants 7oe?r the agents of P. H., who was the
owner of certain stock and land^ etc., the latter of which was in
fact mortgaged.{g)

That R. H. and J. C, etc., on, etc., at, etc., being persons of an
evil disposition, and devising and intending by unlawful ways

(^) This form was sustained in Com. v. Harley, 7 IVIet. 464.

Dewey, J. : " As to the first exception taken to the instructions given to the
jury, at the trial, we think the principle stated in Young and others v. the King,
3 T. R. 98, referred to by the counsel for the defendant, sustains the ruling,
rather than the objection to it. The argument for the plaintifls in error there
was, that the words could not have been spoken by all, and that one of them
could not be affected by words spoken by another, each being answerable for
himself only. But it was held, that ' if they all acted together, and shared in
the same transaction,' they committed the offence jointly. Grose, J., said:
' Every crime, which may be in its nature joint, may be so laid. Here it is
stated that all the defendants committed this offence, by all joining in the same
plan ; they were all jointly concerned in defrauding the prosecutor of his money.'
Now it seems to us, that if two may be indicted for the words spoken by one in
the presence of the other, it appearing that they came to act in concert, it
establishes the position that all which is necessary to cause the liability to attach
to an individual of having participated in making false pretences, is his co-opera-
tion and acting in concert in the general purpose ; and the concert and co-opera-
tion may be shown, although one said nothing by way of assenting to or express-
ing his concurrence in the false pretences. If this be so, it seems necessarily to
follow that if A. procures B. to go to C, and with a false pretence, of which A.
is conversant, to obtain the goods of C, A. is guilty in the matter of obtaining
these goods by false pretences ; and whether A. be outside or within the door of
the sliop of C. is immaterial ; all that is necessary to be proved is, that he is at
the time acting in concert with B., and aiding in putting forth the false pretences,
and that tlie precise false pretences and representations charged in the indict-
ment be made with his knowledge, concurrence, and direction. The instruction
on this point was therefore correct.

"The next instruction to the jury, which is objected to, was in these words:
' It is not necessary for the government to prove that the defendants, or either of
them, obtained the goods on their own account, or that they, or either of them,
derived, or expected to derive, personally, any pecuniary benefit therefrom ; but
that if the jury were satisfied that the defendants obtained said goods by means
of said false pretences, for the sole use and benefit of said P. Harley, this was
sufficient to sustain the allegation in the indictment, that the defendants obtained
said goods by said false pretences.'

" It is not contended by the defendant's counsel that it was necessary, in order
to support the indictment, for the government to prove that the defendant in-
tended any pecuniary gain or personal benefit. That the contrary is the rule is
very clear, and was fully conceded in the argument. But the ground assumed
is that of a variance between the matter set forth in the indictment, and the
proof showing that the goods were obtained for the sole use of P. Harley. I
should doubt, from the report of the case, whether the (question of variance was
distinctly raised at the trial. The point seems rather to have been, whether a
party charged with obtaining goods by false pretences must not be shown to have
obtained them thus for his own use or pecuniary benefit. If, however, we look
at the ([uestion as one of variance, we think the exception cannot pi-evail. The
only allegation which is supposed to conflict with the evidence that the goods
were obtained for the use of P. Harley is this, that the defendants, ' devising

546



FALSE PRETENCES. (5^8)

and means to obtain and get into their hands and possession the
goods, merchandise, chattels, and effects of the honest and good
citizens of this commonwealth, and with intent to cheat and
defraud one G. B. B., one D. IST., and one E. H. R. L., all of said
Boston, Massachusetts, and copartners in trade, transacting busi-
ness under the name, firm, and style of G. B. B. and Company,
did then and there unlawfully, knowingly, and designedly falsely
pretend and represent to said G. B. B. and Company, that they
were in the employment of one P. H., of said Boston, trader ;
that said P. II. was possessed of, and was the rightful owner of
the stock of goods which then were in a certain shop, situated
at the corner of Hanover street and Union street in said Bos-
ton, and was solvent and in good credit, and they were author-
ized to buy goods in the name of said P. H. by said P. H,, and
that said R. H. was authorized to give promissory notes for such
goods, in the name of and in behalf of said P. H., that said P. H.
was a man, and wanted to buy goods on credit of said G. B. B.
and Company, in the fair and usual honest course of trade, with
intent to pay honestly for them at the expiration of the term of
credit upon wdiich they should be sold.

And the said B., JST., and L., then and there believing the said
false pretences and representations, so made as aforesaid by the
said R. H. and J. C , and being deceived thereby, were induced,
by reason of the false pretences and representations so made as
aforesaid, to deliver, and did then and there deliver, to the said
R. 11. and J. C. for said P. H., sundry goods and merchandise of
great value, to wit, of the value of one hundred and forty-seven
dollars and sixty-six cents, to wit, one piece of wool black cloth,

and intending by unlawful means to get into their hands and possession,' etc.
But the evidence fully sustained the allegation. By means of these ialse pre-
tences, the defendants did actually obtain and get into their hands and possession
these goods ; and although they might have had a further purpose of eventually
delivering them to P. Harley for her sole use, that fact, if shown by the defend-
ants, would not avail them to escape from this indictment.

"The remaining exception was, that the false pretences were not, as shown
by the evidence, made personally to either of the members of the firm of George
B. Blake & Co., but to a clerk acting for them in their shop, and by him com-
municated to one of the firm. This objection was not much relied on, ;ind it
cannot be sustained. It was directly overruled in the case of Com. v. Call (21
Pick. 515), where it was held that a false representation to an agent who com-
municates it to his principal, who is influenced by it, is a false pretence to the
principal."

547



(548) OFFENCES AGAINST PROPERTY.

one piece of ribbed cassimere cloth, one piece of mixed doeskin
cloth, six pounds' weight of thread, and one pound of beaux-
sewings, of the proper goods, merchandise, chattels, and eftects
of said B., N., and L.

And the said C. and R. H. did then and there receive and ob-
tain the said goods, merchandise, chattels, and effects of the said
B., N"., and L., by means of the false pretences and representa-
tions aforesaid, and with the intent to cheat and defraud the
said B., N., and L., of the same goods and merchandise, chat-
tels, and effects.

"Whereas, in truth and in fact, said P. H. was not possessed of,
and was not the rightful owner of, said stock of goods in said
store, at said corner of Hanover Street and Union Street, but,
before that time, had made, executed, and delivered divers, to
wit, five, mortgages on said stock and her property, conditioned
for the payment of large sums of money, to wit, sums of money
collectively amounting to more than the value of said stock of
goods and her mortgaged property aforesaid ; all of which mort-
gages are recorded in the city clerk's office of said city of Bos-
ton, according to law, one of which is dated on the fourteenth
day of July, in the year eighteen hundred and forty-one, to R.
H., administrator on the estate of one C. H. ; another is dated
on the tenth day of May, in the year eighteen hundred and
forty-two, to the same administrator; and another is dated on
the second day of June, in the same year, to the same adminis-
trator; and another of said mortgages is dated on the twenty-
ninth day of September, in the same year, to the same adminis-
trator ; and another of said mortgages is dated on the thirty-first
day of October, in the same year, to the same administrator ;
and said P. H. was not a solvent person in good credit, but was
poor, embarrassed, and unable to pay the debts P. H. owed, and
the said P. H. was not a man but a woman, named P. H., who
was insolvent and unable to pay her debts, and she did not want
to buy goods honestly on credit in a fair way of business, and
said G. and R. H. did not want for her to buy goods honestly in
a fair course of trade on credit of said B., jN"., and L., with in-
tent to pay for them as aforesaid, but to cheat them.

And so the jurors aforesaid, upon their oath aforesaid, do
say, that the said R. H. and J. C, by means of the false pre-
548



FALSE PRETENCES. (5-19)

tences aforesaid, on the said fourth day of iN^ovember, in the
year of our Lord eighteen hundred and forty-two, at Boston
aforesaid, unlawfully, knowingly, and designedly did receive
and obtain from said B., N., and L. the said goods, merchan-
dise, chattels, and effects of the proper goods, merchandise, chat-
tels, and effects of the said B., N., and L., with intent to defraud
them of the same, against, etc., and contrary, etc. {Conclude as
in book 1, chapter 3.)

(549) That defendant possessed a capital of eight thousand dollars,
ivhich had come to him. through his wife, it being her estate,
and that a part of it had already come into his possession,
and a jpart would come into his possession in the month then
next ensuing, etc.{h) First count.

That J. A. B., late of the said county, trader, maliciously and
•wickedly devising and intending to cheat W. H. A. and E. R.

{h) This was the Indictment in Com. v. Burdick (2 Barr, 163), with the ex-
ception of the introduction in the text of the "scienter" after the allegation of
the falsity of the pretences. The statute in this case received an extremely-
liberal construction from Gibson, C. J. : "The rule of the common law," he said,
" that cheating in private ti'ansactions without affecting the public, must, to be
indictable, have been effected by artful devices or false tokens, was found to be
too narrow for the business of the world, and the English statute, 20 Geo. II.
c. 29, which has given place to the 7 Geo. IV. c. 92, s. 53, was enacted to extend
the limits of the offence. From these, our act of 1842, § 21, seems to have been
taken, and decisions on the clause in the first, whicli declares it an indictable
offence to get money, chattels, or securities from anotlier, ' by false pretence or
pretences,' or in the second, ' by any false pretence,' may be advantageously ap-
plied to cases here. Tlie distinctions taken under these statutes, between cases
sometimes differing in almost imperceptible degrees, are nice and well founded;
and though not authoritative here, may help us in attaining a sound construction
of our own statute, which differs from either of its models very little in sub-
stance or in form. It would be a waste of time to pass those decisions in review,
as they are collected and arranged in all the text books of criminal law ; but it
may be collected from them, that a professed intent to do an act whicli the party
did not mean to do, as in Rex v. Goodall (R. & R. 461), and Rex v. Douglass
(1 Mood. C. C. 462), is the only species of false pretence to gain property wliieh
is not indictable. These two cases, having been decided by the twelve judges,
are eminently entitled to respect ; but I think it at least doubtful whether a naked
lie, by which credit has been gained, would not, in every case, be deemed Avithin
our statute, which declares it a cheat to obtain money or goods by any false pre-
tence whatsoever. Its terms are certainly more emphatic than those of either of
the English statutes ; but whether a false pretence of mere intent be within them
or not, it is certain that a fraudulent misrepresentation of the party's means and
resources is within the English statutes, and, d fortiori., within our own. In Rex
V. Jackson (3 Campb. 370), it was held to be an offence to obtain goods by giving
a check on a banker with whom the drawer kept no cash. Of the same stamp is
the King?;. Parker (2 C. & P. 825) ; but Regina v. Henderson and another (1 C.
& M. 183) is still more to the purpose. The prisoners falsely pretended that one

549



(549) OFFENCES AGAINST PROPERTY.

of their goods and merchandise, on, etc., at, etc , did falsely, un-
lawfully, knowingly, designedly, and fraudulently pretend to
the said W. H. A. and the said E. R., that he the said J. A. B.
possessed a capital of eight thousand dollars, that the said eight
thousand dollars had come to him through his wife, it being her
estate, and that a part of it had already come into his posses-
sion, a part would come into his possession in the month then
next ensuing, and that for the remaining part thereof he would
be obliged to wait for a short time ; whereas, in truth and fact,
he, the said J. A. B., did not then possess a capital of eight
thousand dollars, nor had eight thousand dollars come to him
through his wife, it being her estate, a part of which had already
come into his possession, a part would come into his possession
in the month then next ensuing, while for the remaining part
thereof he would be obliged to wait for a short time, as he, the
said J. A. B., did then and there falsely pretend to the said W.
II. A. and the said E. R. ; of the falsity of which said pretences
he, the said J. A. B., then and there well knew. And the in-
quest, etc., do further present, that the said J. A. B., afterwards,
to wit, on the day and year aforesaid, at the county and within
the jurisdiction aforesaid, by the said false pretences aforesaid,
did then and there unlawfully, fraudulently, and designedly
obtain from the said W. H. A. and E. R. divers goods and mer-
chandise, to wit, six pieces rich satin stripe silk, being together
of the value of one hundred and four dollars, and one piece of
striped cloaking, of the value of fifty dollars, being then and
there the property of the said W. H. A. and E. R., with intent
to defraud the said W. H. A, and E. R. of the same, to the
great damage of the said W. H. A. and the said E. R., contrary,
etc., and against, etc. {Conclude as in book 1, chapter 3.)

of them -was possessed of twelve pounds, which he agreed to give for his con-
federate's horse, for which it was proposed that the prosecutor shoidd exchange
his mare ; and this was held to be clearly a false pretence within the statute.
Now the defendant is charged in the indictment before us, with having wilfully-
misrepresented that he had a capital of eight thousand dollars, in right of his
wife; that a part of it was already received; that another part of it would be
received in the course of a month ; and that the residue would be received
shortly afterwards; and if, as was said in Mitchell's case (2 East, P. C. 80), a
false pretence is within the English statute, wherever it has been the efficient
cause of obtaining credit, the false pretence before us is within our own." See
in general Wh. Cr. L. 8th ed. §§ 1135, 1173.

550



FALSE PRETENCES. (^51)

(550) Second count. Tliat defendant has a capital of $S00O, which
came through his wife.

And the inquest, etc., do further present, that the said J. A. B.,
wickedly and fraudulently devising and intending as aforesaid to
cheat and defraud the said W. H. A. and E. R. of their goods
and merchandise, on the day and year aforesaid, at the county
and within the jurisdiction aforesaid, did falsely, designedly, and
fraudulently pretend to the said W. H. A. and E. R., that he the
said J. A. B. possessed a capital of eight thousand dollars, which
said eight thousand dollars had come to him through his wife, it
being her estate ; whereas, in truth and fact, he the said J, A. B.
did not then and there possess a capital of eight thousand dol-
lars, nor had eight thousand dollars come to him through his wife,
nor had she, his wife, as aforesaid, an estate of eight thousand dol-
lars, as he the said J. A. B. did then and there falsely pretend to
the said W. H. A. and the said E. R., of the falsity of which
said pretences, he the said J. A. B. then and there well knew.
And the inquest, etc., do further present, that the said J. A. B.,
afterwards, to wit, on the day and year aforesaid, at the county
and within the jurisdiction aforesaid, did, unlawfully, know-
ingly, and fraudulently obtain from the said W. H. A. and the
said E. R. divers goods and merchandise, to wit, six pieces of
rich satin stripe silk, together of the value of one hundred and
four dollars, and one piece of striped cloaking, of the value of
fifty dollars, being then and there the property of the said W.
H. A. and E. R., with intent to defraud the said W. H. A. and
E. R. of the same, to the great damage of the said W. H. A.
and the said E. R., contrary, etc., and against, etc. {Conclude as
in book 1, chapter 3.)

(551) Ihird count. That defendant had a capital of $8000.

That the said J. A. B., wickedly and fraudulently devising and
intending as aforesaid to cheat and defraud the said W. II. A.
and E. R. of their goods and merchandise, on the day and year
aforesaid, at the county aforesaid, and within the jurisdiction
aforesaid, did falsely, designedly, and fraudulently pretend to the
said W. H. A. and the said E. R., that he the said J. A. B. then
and there possessed a capital of eight thousand dollars ; whereas,

551



(552) OFFENCES AGAINST PROPERTY.

in truth and in fact, the said J. A. B. did not then and there
possess a capital of eight thousand dollars, as he the said J. A.
B. then and there did falsely pretend to the said W. H. A. and
the said E. R. And the inquest, etc., do further present, that
the said J. A. B. did then and there unlawfully, knowingly, and
fraudulently obtain from the said W. H. A. and the said E. R.
divers goods and merchandise, to wit, six pieces of striped silk"-,
being together of the value of one hundred and four dollars,
and one piece of striped cloaking of the value of fifty dollars,
being then and there the property of the said W. H. A. and the
said E. E,., with intent to defraud the said^W. H. A. and the
said E. R. of the same, to the great damage of the said W. H.
A. and the said E. R., contrary, etc., and against, etc. {Conclude
as in book 1, chapter 3.)

(552) Pretence that defendant was well off and free from debt, etc.[i)

That A. Gr. D.,etc., on, etc., at, etc., unlawfully and wickedly
devising and intending to cheat and defraud one W. F. of his
goods, moneys, chattels, and property, unlawfully, fraudulently,
and designedly did falsely pretend to the said W. F., that he
the said A. G. D. had paid every dollar of the old score that he
owed in Philadelphia, that he was well oft', and that he was
very rich, and had a great deal of property in Kentucky.
Whereas, in truth and in fact, he the said A. G. D. had not paid
every dollar of the old score that he owed in Philadelphia, and
was not well off", and w^as not very rich, but on the contrary
was very poor, and did not own a great deal of property in
Kentucky ; and he the said A. G. D. then and there well knew
the said pretence and pretences to be false ; by color and means
of which said false pretence and pretences, he the said A. G. D.
did then and there unlawfully obtain from the said W. F. one
black mantilla of the value of twenty-five dollars, one garnet
mantilla of the value of twenty dollars, one black silk mantilla
of the value of fourteen dollars, one black embroidered mantilla
of the value of fourteen dollars, two plain silk mantillas of the

(^■) Com. V. Daniels, 2 Parsons, 352. Under this indictment the defendant was
convicted in Philadelphia, and sentenced. A writ of error was afterwards taken
in the supreme court (the assijinment of error being confined to the sentence),
and the judgment of the court below was affirmed. Wh. Cr. L. 8th ed. §§ 1147,
1170.

552



FALSE PRETENCES. (553)

value of twenty-four dollars, two figured silk mantillas of the
value of eighteen dollars, twenty-six yards and a half of striped
silk of the value of forty-three dollars and six cents, two silk
shawls of the value of twenty-four dollars, two cashmere shawls
of the value of twenty dollars, two net bags of the value of
eight dollars, two velvet bags of the value of eight dollars,
twelve yards of figured silk of the value of nineteen dollars
and fifty cents, one trunk of the value of one dollar and fifty
cents, being together of the value of two hundred and thirty-
nine dollars and six cents, being then and there the property of
the said W. F., with intent to cheat and defraud the said W.
F., to the great damage of the said W. F., contrary, etc., and
against, etc. {Conclude as in book 1, chapter 3.)

(553) Second count. Negativing the pretence more fuUi/.

That the said A. G. D., etc., on, etc., at, etc., unlawfully and
wickedly designing and intending to cheat and further defraud
the said W. F. of his goods, moneys, chattels, and property,
unlawfully and designedly did further falsely pretend to the
said W. F., that he the said A. G. D. had paid every dollar of
the old score that he owed in Philadelphia (meaning thereby
that he paid and discharged all the old debts which he owed
in Philadelphia, and all debts which he had previously con-
tracted in Philadelphia), that he was well off (meaning thereby
that he had ample means), that he was rich, and had a great
deal of property in the state of Kentucky (meaning thereby
that he was a person of great wealth). Whereas, in truth and
in fact, he the said A. G. D. had not then and there paid ofl^
every dollar of the old debts which he owed in Philadelphia,
and had not paid off all debts which he had previously con-
tracted in Philadelphia, but on the contrary then and there
owed and still does owe large sums of money to various per-
sons, as follows: Seven hundred and fifty-eight dollars and
seventy-eight cents to J. M. 0., J. T., and S. B, D., trading as
0. and T. ; ten hundred and forty dollars and eighteen cents to
S. W. A., G. W. J., and W. F., trading as A., J. and Co. ; eight



Online LibraryUnknownPrecedents of indictments and pleas, adapted to the use both of the courts of the United States and those of all the several states; together with notes on criminal pleading and practice, embracing the English and American authorities generally (Volume 1) → online text (page 60 of 65)