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within the statute. The prisoner, for the purpose of defrauding the prosecutor, gave him, in payment for goods, a check upon a banker with whom he kept no cash and had no account. He was indicted upon the statute 30 Geo. 2, c. 24, and Lara's case (ante, p. 342,) was cited. Per Bayley, J., “ This point has been recently before the judges, and they were all of opinion that it is an indictable offence, fraudulently to obtain goods by giving in payment a check upon a banker with whom the party keeps no cash, and which he knows will not be paid.” Jackson's case, 3 Campb. 370. Henry Jackson's case, York Sum. Ass. 1830, coram, Bayley, J., Matthews's Dig. C. L. 167.
So where the prisoner was charged with falsely pretending that a postdated check, drawn by himself, was a good and genuine order for £25, and of the value of £25, whereby he obtained a watch and chain; and the jury found, that before the completion of the sale and delivery of the watch by the prosecutor to the prisoner, he represented to the prosecutor that he had an account with the bankers on whom the check was drawn, and that he had a right to draw the check, though he postponed the date for his own convenience, all which was false ; and that he represented that the check would be paid on or after the day of the date, but that he had no reasonable ground to believe that it would be paid, or that he could provide funds to pay it; the judges held that he was properly convicted. Parker's case, 7 C. and P. 825 (u).
The prisoner was indicted for a felony. It appeared that she went to a tradesman's house, and said that she came from Mrs. Cook, a neighbor, who would be much obliged if he would let her have half-a-guinea's worth of silver, and that she would send the half-guinea presently. The prisoner obtained the silver, and never returned, and this was held no felony. It was said to be, in trụth, a loan of the silver upon the faith that the amount would be repaid at another time. It might be money obtained under a false pretence. The same determination has been made in similar cases at the Old Bailey. Coleman's case, 2 East, P. C. 672.
Although there may have been a previous confidence between the parties, yet if the particular money or goods in question were obtained under false pretences, it is an indictable offence within the statute.
The prisoner was indicted under the 30 Geo. 2, for obtaining money under false pretences. The prosecutors were clothiers, and the prisoner, a shearman in their service, and employed as superintendent to keep an account of the persons employed, and the amount of their wages and earnings. At the end of each week he was supplied with money to pay the different shearmen, by the clerk of the prosecutors, who advanced to him such sums, as,. according to a written account or note delivered to him by the prisoner, were necessary to pay them. The prisoner was not authorised to draw money generally on account, but merely for the sums actually earned by the shearmen ; and the clerk was not authorised to pay any sums, except ( *421 ] such as he carried in, in his note or account. *The prisoner delivered to the prosecutor's clerk, a note in writing, in this form,“ 9 Sept. 1796, 441. 11s. Od.,” which was the common form in which he inade out the note. In a book in his hand-writing, wbich it was his business to keep, were the names f several men who had not been employed, who were entered as having earned different sums of money, and also false
(a) Eng. Com. L. Rep. xxxii. 755.
accounts of the work done by those who were employed, so as to make out the sum of 441. 118.0d. The prisoner being found guilty, on a case reserved for the opinion of the judges, it was argued that the statute did not extend to cases where there was a previous confidence. At first, there was some diversity of opinion, but finally, they all agreed, that if the false pretence created the credit, the case was within the statute. They considered that the defendant would not have obtained the credit, but for the false account he had delivered in; and, therefore, that he was properly convicted. The defendant, as was observed by one of the judges, was not to have any sum that he thonght fit on account, but only so much as was worked out. Witchell's case, 2 East, P. C. 830.
The indictment charged, that one Barrow, at K., &c., delivered to the prisoner, a common carrier, certain goods to be carried by him from K. to one Leach, at L., there to be delivered, &c. ; that the defendant received the goods under pretence of carrying them, and delivering them, and undertook so to do, but that intending to cheat Barrow of his money, he afterwards unlawfully, &c. pretended to Barrow, that he had carried the goods from K. to L., for the purpose of delivering them to Leach, and had delivered them to Leach at L., and that Leach had given him, the defendant, a receipt, expressing the delivery of the goods to him, but that he had lost, or mislaid the same, or had left it at home, and that the defendant thereupon demanded of Barrow 16s. for the carriage of the said goods, by means of which false pretences he obtained the money, &c. On a writ of error after conviction, the judgment was affirmed. Airey's case, 2 East, P. C. 831 ; 2 East, R. 30. The defendant, Count Villeneuve, applied to Sir T. Broughton, telling him that he was employed by the Duke de Lauzun, to take some horses from Ireland to London, and that he had been detained so long by contrary winds, that all his money was spent; by which representations Sir T. Broughton was induced to advance some money to him, after which it turned out that the defendant never had been employed by the Duke, and that the whole story was a fiction. The defendant was convicted. Villeneuve's case, coram Moreton, C. J., at Chester, cited by Buller, J., in Young's case, 3 T. R. 101, 103.
Where an attorney who had appeared for J. S., who was fined 21. on a summary conviction, called on the wife of J. S., and told her that he had been with J. N., who was fined 21. for a like offence, to Mr. B. and Mr. L., and that he had prevailed upon them to take 1l. instead of 21., and that if she would give him ll. he would go and do the same for her; and she thereupon gave him a sovereign, and afterwards paid him for his trouble ; and it was *proved that the attorney never applied to [ *422 ] Mr. B. or Mr. L. respecting either of the fines, and that both were afterwards paid in full; it was held, that the attorney was guilty of obtaining money by false pretences. Asterley's case, 7 C. and P. 191 (a).
It is said by a writer of authority, that a man cannot be guilty of a forgery, merely by passing himself off as the person whose real signature appears, though for the purposes of fraud, and in concert with such real person, for there is no false making. But this appears to be a false pretence within the statute 30 Geo. 2, c. 24, 2 East, P. C. 856.
The mere breach of a warranty, or a false assertion at the time of a bar.
(a) Eng. Com. Law Rep. xxxii. 490.
gain, cannot, as it seems, be construed into an obtaining money under false pretences. The indictment stated, that the defendant, by falsely pretending to a person named Varlow, that he was entitled to a reversionary interest in one-seventh share of a sum of money left by his grandfather, obtained the sum of 291. 38. Od., whereas he was not entitled to any interest in any share, &c. (negativing the pretences.) To prove the pretences, a deed, assigning the defendant's interest in one-seventh share of the interest to Varlow was put in, and in this deed was contained the usual covenant for title; Litlledale, J., observed, that a covenant in a deed could not be taken to be a false pretence. The prosecutor stated, that the defendant asked him to purchase a seventh part of some money which he would be entitled to under his grandfather's will, on the death of one of his relatives, and that he agreed to purchase it, and got a deed of assignment executed to him, and thereupon paid the defendant the purchase money. To prove the falsity of the pretences, a previous assignment by the defendant to a person named Peck, was put in. After argument, Littledale, J., said, " The doctrine contended for, on the part of the prosecutor, would make every breach of warranty, or false assertion, at the time of a bargain, a transportable offence. Here the party bought the property, and took as his security a covenant, that the vendor had a good title. If he now finds that the vendor had not a good title, he must resort to the covenant. This is only a ground for a civil action." Codrington's case, 1 c. and P. 661 (a). The indictment charged that the defendant, having in his possession a certain weight of 28 pounds, falsely pretended to C. that a quantity of coals which he delivered to C. weighed 16 hundred weight (meaning 1,792 pounds weight,) and were worth ll., and that the weight was 56 pounds, by means of which he obtained a sovereign from C., with intent to defraud him of part thereof, to wit, 108.; whereas the coals did not weigh 1,792 pounds, and were not worth il. ; and whereas the weight was not 58 pounds; and whereas the coals were of the weight of 896 pounds only, and were not worth more than 108.; and whereas the weight was 28 pounds only. The prisoner being convicted, it was moved, in arrest of judgment, that all the pretences mentioned in the indictment, except that which related to the false weight, were no more than mere false affirmations; and that [*423] as to the weight there was no allegation in the indictment to *connect the sale of the coals with the use of the weight. The judges held the conviction yon the indictment wrong. Reed's case, 7 C. and P. 848 (b).
The prisohad acuopted a bill drawn on him by the prosecutor for 2,6381., Wobe owed to the latter. The bill was negotiated, and when it became due, the prosecutor asked the prisoner if he was prepared to pay it. The prisoner answered that he was prepared with sufficient funds, all but 3001., and that he expected to get the loan of that sum from a friend. The prosecutor expressed his willingness to advance the 3001. himself, and ultimately did so, but the prisoner, instead of taking up the bill, applied the 300l. to his own purposes, and suffered the bill to be dishonored, and the prosecutor eventually had to pay it. Evidence was also given, that at the time the prisoner obtained the money, he was not in possession of funds sufficient to make up the balance between the 2,6381. and the 3001., but was in insolvent circumstances. For the prisoner it was contended
(a) Eng. Com. Law Rep. xi. 518. (b) Id. xxxii. 766.
that the representation was not a false pretence within the statute, being a mere mis-statement, or at the worst a naked lie, and Codrington's case, ante, p. 422, was cited ; and, secondly, that the act did not extend to cases where the prosecutor had only lent, not parted with the property of the goods or money. Patteson, J. said, “ The words of this act are very general, and I do not think I can withdraw the case from the jury. if they are satisfied that the prisoner fraudulently obtained the 3001. from the prosecutor by a deliberate falsehood, averring that he had all the funds required to take up the bill, except 3001., when in fact he knew that he had not, and meaning all the time to apply the 3001. to his own purposes, and not to take up the bill, it appears to me that the jury ought to convict the prisoner. In Rex v. Codrington, it does not appear that the prisoner did distinctly allege that he had a good title to the estate which he was selling. Then as to the money being advanced by the prosecutor only as a loan ; the terms of the act of parliament embrace every mode of obtaining money by false pretences, by loan as well as by transfer." The jury acquitted the prisoner. Crossley's case, 2 Moody and Rob. 17. "2 Lew. c.'c. 164. S. C.
What shall amount to—not necessary that words should be used.] The statute 33 Henry 8, c. 1, (now repealed) related to false pretences, by means of a false seal or token, and under the general words " false pretence,” in the statute 30 Geo. 3, c. 24, it was held that the offence might be effected by other means than by words. The prisoner was indicted for unlawfully producing to A. B. &c., at the Nottingham post-office, a inoney order for the payment of one pound to one John Storer, and that he unlawfully pretended to the said A. B. that he was the person named in such order, with intent, &c., whereas, &c. It appeared in evidence, that the prisoner had gone to the post-office, and inquired for letters for John Story, whereupon by mistake, a letter for John Storer, containing the money order, was delivered to him. He remained a sufficient *time to read the [ *424 ) letter, and then presented the order to A. B., who desired him to write his name upon it, which he did in his real name, John Story, and received the money. The terms of the letter clearly explained, that the order could not have been intended for the prisoner, who on being apprehended, denied that he had ever received the money, but afterwards assigned the want of cash as the reason of his conduct; Chambre, J., left it to the jury to find against the prisoner, if they were satisfied that he had, by his conduct, fraudulently assumed a character which did not belong to him, although he made no false assertions. The jury found him guilty. The judges held the conviction right, being of opinion, 1st, that the prisoner writing his own name on the order, did not amount to a forgery; and 2dly, that by presenting the order for payment, and signing it at the postoffice, he was guilty of obtaining money by a false pretence within the statute. Story's case, Russ. and Ry. 81 (a). See Freeth's case, Id. 127 (6), S. P. stated infra. So whete a person at Oxford, who was not a member of the University, went for the purpose of fraud, wearing a commoner's gown and cap, and obtained goods; this was held a sufficient false pretence to satisfy the statute, though nothing passed in words. Barnard's case, 7 C. & P. 784 (c).
(a) 1 Eng. C. C. 81. (6) 1 Ibid. 127. (c) Eng. Com. L. Rep. xxxii. 736.
What shall amount to-goods obtained upon an instrument void in law.] Although the instrument by means of which the prisoner carries his intent to defraud into effect, may be on the face of it illegal, and of no value, yet if the prisoner fraudulently obtains the goods, &c., he may be convicted. The prisoner was indicted in one count, upon the statute 30 Geo. 2, c. 24, and in another, as for an offence at common law. It appeared in evidence, that the prisoner came to the prosecutor's shop, and asked for a loaf, which he served to bim for five pence, that the prisoner then asked him for some tobacco, and the prosecutor served bim with an ounce for three pence. The prisoner then threw down a note for ten shillings and sixpence, upon which the prosecutor said, he had no change, but in copper. The prisoner said copper would do. The prosecutor then gave him nine shillings and ten pence in copper, which the prisoner took with the loaf and tobacco, and went away. The note was forged. The same evening, and the following morning, the prisoner put off several similar forged notes. The notes purported to be made by Sparrow, who was a person of good credit, and whose notes under 20s. were generally circulated in the neighborhood. It was contended for the prisoner, that this was not within the statute, which was confined to cases of false suggestions, but it appeared to the learned judge, that the uttering the note as a genuine note was tantamount to a representation, that it was so. also objected that a note of this sort being void, and prohibited by law, it was no offence to forge such a note, or to obtain money upon it when forged, as the party taking it ought to be upon his guard. The learned judge, however, left the case to the jury, who found the prisoner guilty on [ *425 ) both counts, and the case was reserved *for the opinion of the judges. All being present (except Rooke, J.,) the majority of them thought that the conviction was right, and that it was a false pretence, notwithstanding the note, upon the face of it, would have been good for nothing in point of law, if it had not been false. Lawrence, J., was of a different opinion, and thought that the shopkeeper was not cheated if he parted with his goods for a piece of paper, which he must be presumed in law to know was worth nothing, if true. Freeth's case, Russ. and Ry. 127 (a).
Proof of the false pretences.] The pretences, which must be distinctly set out in the indictment, 2 Russ. 309, must be proved as laid. Where, in the averment of the pretence, it was stated, “ that the defendant pretended that he had paid a certain sum into the Bank of England," and the witness stated, that the words used were, “the money has been paid at the bank,” Lord Ellenborough said, “In an indictment for obtaining money by false pretences, the pretences must be distinctly set out, and at the trial they must be proved as laid. An assertion, that money had been paid into the bank, is very different from an assertion, that it had been paid into the bank by a particular individual. The defendant must be acquitted.” Plestow's case, 1 Campb. 494. But where the indictment charged, that the defendant having in his custody a certain parcel to be delivered, &c. for which he was to charge 68., delivered a ticket for the sum of 98. 10d. by means, &c., and it appeared in evidence that the parcel mentioned in the indictment was a basket of fish, it was objected that this was a variance, but Lord Ellenborough overruled the
T (a) 1 Eng. C. C. 127.