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objection, saying, that a basket answered the general description of a parcel well enough, but that if the indictment had been on the 39 Geo. 3, c. 58, (which enacts, that if any porter, or other person employed in the porterage, or delivery of boxes, baskets, packages, parcels, trusses, game or other things, shall take any greater sum, &c.) it would have been a fatal variance. Douglas's case, i Campb. 212.
The rule that the false pretences averred in the indictment must be proved as laid, is subject to the qualifications that all the pretences need not be proved, but that a single false pretence, proved as laid, though joined with others, is sufficient to support the indictment (1). The defendant was indicted under the 30 Geo. 2, for obtaining money under pretence of assisting two seamen to procure a pension, and it was alleged that he pretended that “two guineas must be sent up to the under clerks as fees, which they always expected, and that nothing could be done without it.” The part of the pretences printed in italics was not proved, and it was objected that this was a fatal variance, but the defendant being convicted, the judges held the conviction right. Hill's case, Russ. and Ry. 190 (a). See also Perroti's case, 2 M. and S. 379.
But it must appear that the prosecutor parted with his property, by reason of the false pretences, or one of the false pretences charged. The prisoner was indicted for obtaining a filly, by the *false pretence [ *426 ] that he was a gentleman's servant, and had lived at Brecon, and had bought twenty horses in Brecon fair. It appeared that the prisoner bought the filly of the prosecutor, and made him this statement, which was false, and also told him that he would come down to the Cross Keys and pay him. The prosecutor stated that he parted with his filly because he believed that the prisoner would come to the Cross Keys and pay him, and not because he believed that the prisoner was a gentleman's servant, &c. It was held by Coleridge, J. that the prisoner must be acquitted. Dale's case, 7 C. and P. 351 (b).
Where the false pretences are contained in a letter, and such letter has been lost, the prisoner, after proof of the loss, may be convicted on parol evidence of its contents. Chadwick's case, 6 C. and P. 181 (c).
Proof of the falsity of the pretence.] The falsity of the pretence must clearly appear on the prosecutor's evidence, and must not be left to inference. The prisoner bought from the prosecutor at Rugeley fair a horse for £12, and tendered him in payment notes to that amount on the Oundle bank. On the prosecutor objecting to receive these notes, the prisoner assured him they were good notes, and upon this assurance the prosecutor parted with the horse. The prisoner was indicted for obtaining the horse by false pretences, viz. by delivering to the prosecutor certain papers purporting to be promissory notes, well knowing them to be of no value, &c. It appeared in evidence, that these notes had never been presented by the prosecutor at Oundle, or at Sir J. Esdaile's in London, where they were made payable. A witness stated, that he recollected Rickett's bank at Oundle stopping payment seven years before, but added,
(1) People o. Haynes, 11 Wend. 557. The pretences proved false need not be the only inducement to the credit or delivery : it is enough if without them, the credit would not have been given, or the delivery made. Ibid.
(a) 1 Eng. C. C. 190. (6) Eng. Com. L. Rep. xxxii. 539. (c) Id. xxv. 344.
that he knew nothing but what he saw in the papers, or heard from the people who had bills there. The notes appeared to have been exhibited under a commission of bankrupt against the Oundle bank. The words importing the memorandum of exhibit had been attempted to be obliterated, but the names of the commissioners remained on each of them. The jury found the prisoner guilty, and said, they were of opinion, that when the prisoner obtained the horse, he well knew that the notes were of no value, and that it was his intention to cheat the prosecutor. case reserved, the judges held the conviction wrong, and that the evidence was defective in not sufficiently proving that the notes were bad. No opinion was given, whether this would have been an indictable fraud, if the evidence had been sufficient. Flint's case, Russ. and Ry. 460 (a). The defendants were indicted for obtaining money under the false pretence of their being collectors of the property tax. It appeared in evidence, that they had in fact been appointed collectors by the commissioners, but that their appointment was informal. This was held not to be a false pretence within the statute, 30 Geo. 2, c. 24; Dobson's case, 7 East, 218. The defendant was indicted for obtaining money by falsely pretending that a note purporting to be the promissory note of Coleman, Smith, and [ *427 ] Morris, *was a good and available note of C. S. and M., whereas it was not a good and available note. The defendant gave the note to the prosecutor in payment for meat. A witness proved that he had told the defendant that the Leominster Bank (from which the note issued) had stopped payment. It was also proved that the bank was shut up, and that Coleman and Morris had become bankrupts; but it appeared that Smith, the third partner, had not become bankrupt. Gaselee, J., said, that upon this evidence, the prisoner must be acquitted, because, as it appeared, that the note might ultimately be paid, it could not be said that the defendant was guilty of a fraud in passing it away. Spencer's case, 3 C. and P. 420 (6).
Proof of intent to cheat or defraud.] It must appear that the defendant obtained the money, &c., with intent to cheat or defraud some person of the same. Thus, where in an indictment for obtaining money under false pretences, the allegation of the obtaining the money did not state that it was with intent, &c., the judges, on the point being reserved for their consideration, were of opinion that the indictment was bad. Rushworth's case, Russ. and Ry. 317 (c); 1 Stark. 396 (d).
The primary intent must be to cheat or defraud. Thus, where the prisoner was indicted for having procured from the overseer of a parish, from which he received parochial relief, a pair of shoes, by falsely pretending that he could not go to work because he had no shoes, when he had really a sufficient pair of shoes; and it appeared in evidence, that on the overseer bidding him to go to work, he said he could not, because he had no shoes, upon which the overseer supplied him with a pair of shoes, whereas the prisoner had a pair before; the prisoner being convicted, the case was considered by the judges, who held that it was not within the act, (30 Geo. 3, c. 24,) the statement made by the prisoner being rather a false excuse for not working, than a false pretence to obtain goods. Wakeling's case, Russ. and Ry. 504 (e). (a) 1 Eng. C. C. 460. (b) Eng. Com. L. Rep. xiv. 376. (c) 1 Eng. C. C. 317. (d) Eng.
Com. L. Rep. ii. 442. (e) 1 Eng. C. C. 504.
A. owed B. a debt, of which B. could not obtain payment. C., a servant of B., went to A.'s wife, and got two sacks of malt from her, saying that B. had bought them of A., which he knew to be false, and took the malt to his master, in order to enable him to pay himself; it was held by Coleridge, J., that if C. did not intend to defraud A., but only to put it in his master's power 10 compel A. to pay him a just debt, he could not be convicted of obtaining the malt by false pretences. Williarns' case, 7 C. and P. 354 (a).
Proof of the obtaining some chattel, money, or valuable security.) Ju order to render it an offence within the statute, the property obtained must come within the description of “chattel, money, or valuable security.” An unstamped order for the payment of money, which ought to be stamped under 55 Geo. 3, c. 184, is not a valuable security within the statute. Yates' case, I Moody, C. C. 170 (6).
Obtaini credit with a banker by false pretences, and thus procuring him to pay drafts to third persons, is not an obiaining money, *chat- | *428) tel, or valuable security within the 7 and 8 Geo. 4, c. 29. The defendant was indicted for obtaining money under false pretences. The first count stated the false pretences by which the defendant procured the prosecutors to cash a check in favor of one Jacob, and concluded thus, " and obtained from them the amount of the check to be paid to the said Jacob, and further advances to him to answer other checks drawn by him on the prosecutors, viz. &c., with intent,” &c. In the second count it was alleged, that the defendant by means, &c., obtained a large suin of money, to wit, &c., from the prosecutors, and also the check mentioned to be paid to the said Jacob, with intent, &c. It appeared in evidence, that in order to induce the prosecutors, who were the defendant's bankers, to give him credit, and honor his checks, he delivered to them a bill drawn by him upon a person with whom he had no account, and which had no chance of being paid. The prosecutors paid the amount of the check to Jacob. The defendant was convicted, and on a case reserved for the opinion of the judges, they were of opinion that the prisoner could not be said to have obtained any specific sum on the bill; all that was obtained was credit on account, and they therefore held the convic
Wavell's case, 1 Moody, C. C. 224 (c). Obtaining money by way of loan, by means of false pretences, is within the statute. See Crossley's case, ante, p. 423.
It is sufficient for the prosecutor to prove that some part of the goods, &c., stated in the indictment, (for the rule in this respect is the same as in larceny, see that title,) were obtained from himn by the false pretences used.
Proof of the ownership of the property.) The property obtained by means of the false pretences, must be proved to be the property of the party mentioned in the indictment. The prisoner was indicted for obtaining the sum of 3s. 4d. of the monies of the Countess of Ilchester. It appeared in evidence, that the prisoner brought a basket of fish, which he delivered to the servant of the countess, with a false ticket, charging 38. 4d. too much for the carriage. The servant paid him the full amount,
(a) Eng. Com. L. Rep. xxxii. 540. (6) 2 Eng. C. C. 170. (C) 2 Id. 224.
and was repaid by lady Ilchester. On it being objected that at the time of payment, this was not ber inoney, Lord Ellenborough said, that her subsequent allowance did not make the money paid to the defendant her money at the tinie. She was not chargeable for more than was actually due for the carriage, and it depended upon her whether she should pay the overplus. The servant, however, afterwards swore that at the time of this transaction, he had in his hands upwards of 9s. 10d., (the whole sum charged) the property of his mistress, which Lord Ellenborough considered sufficient to sustain the averment. Douglas' case, 1 Campb. 212.
The indictment must state that the money, &c. obtained, is the property of the person whom it was intended to defraud; since otherwise a conviction or acquittal on such indictment, could not be pleaded in bar to | *429] a subsequent indictment for larceny, in respect of *the same transaction. Norton's case, 8 C. and P. 197 (a). And this defect is not aided by verdict. Martin's case, Q. B., T. T. 1838. Archb. P. 279, 7th ed.
Proof of all being principals. Where several persons were indicted for obtaining money under false pretences, it was objected, that although they were all present when the representation was made to the prosecutor, yet the words could not be spoken by all, and one of them could not be affected by words spoken by another; but that each was answerable for himself only, the pretence conveyed by words being like the crime of perjury, a separate act in the person using them ; the Court of King's Bench, however, held, that as the defendants were all present, acting a different part in the same transaction, they were guilty of the imposition jointly. Young's case, 3 T. R. 98.
Defendant not to be acquitted where the offence appears to be a larceny. By the 7 & 8 Geo. 4, c. 29, s. 53, (vide ante, p. 417,) if it appears on the trial that the defendant obtained the property in question, in any such manner as to amount in law to larceny, he shall not be entitled to be acquitted by reason thereof. In all cases, therefore, where it is doubtful whether in point of law the offence is a larceny, or a misdemeanor, the safest course is to indict the party as for a misdemeanor, for should it appear upon an indictment for larceny, that the offence is, in fact, that of obtaining money, &c., under false pretences, the prisoner must be acquitted.
Restitution of the property obtained.] The court had not the power, formerly, of ordering the restitution of property obtained by false pretences, the statute 21 Hen. 8, c. 11, extending only to stolen property. But now by the 7 & 8 Geo. 4, c. 29, s. 57, it is enacted, that in cases of misdemeanors the court has power to award the restitution of the property. See this section stated, post.
(a) Eng. Com. L. Rep. xxxiv. 350:
TAKING OR DESTROYING FISH.
It will be seen (post, title, Larceny,) that larceny might be committed at common law of fish in a trunk or net, or as it seems in any inclosed place, where the owner might take them at his will. 2 East, P. C. 610. But it was no larceny to take fish in a river, or other great water, where they were at their natural liberty. Hawk. P. C. b. 1, c. 33, s. 39. Property of this kind was protected by *various statutes, (4 & 5 [ *430 ] Win. 3, c. 23, s. 5. 22 & 23 Car. 2, c. 25, s. 7. 9 Geo. 1, c. 22. Geo. 3, c. 14,) but those statutes are now repealed by the 1 & 8 Geo. 4, c. 27, and the substance of them is re-enacted in the 7 & 8 Geo. 4, c. 29. By s. 34, “ if any person shall unlawfully and wilfully take or destroy any fish in any water which shall run through, or be in any land adjoining or belonging to the dwelling-house of any person being the owner of such water, or having a right of fishery therein, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be punished accordingly; and if any person shall unlawfully and wilfully take or destroy, or atteinpt to take or destroy, any fish in any water not being such as aforesaid, but which shall be private property, or in which there shall be any private right of fishery, every such offender, being convicted thereof before a justice of the peace, shall forfeit and pay, over and above the value of the fish taken or destroyed (if any,) such suin of money, not exceeding five pounds, as to the justice shall seem meet : provided always, that nothing herein-before contained shall extend to any person angling in the day-time; but if any person shall by angling in the day-time unlawfully and wilfully take or destroy, or attempt to take or destroy any fish in any such water as first mentioned, he shall, on conviction before a justice of the peace, forfeit and pay any such sum not exceeding five pounds; and if in any such water as last-mentioned, he shall, on the like conviction, forfeit and pay any sum not exceeding two pounds, as to the justice shall seem meet; and if the boundary of any parish, town. ship or vill shall happen to be in or by the side of any such water as is herein-before mentioned, it shall be sufficient to prove that the offence was committed either in the parish, township, or vill named in the indictment or information, or in any parish, township, or vill adjoining thereto.”
On an indictment under the above section, the taking of the fish need not be such a taking as would be necessary to constitute larceny. See Glover's case, R. and R. 269 (a).
The words “ adjoining” any dwelling-house, import actual contact, and, therefore, ground separated from a house by a narrow walk and paling, wall, or gate, is not within their meaning. Hodges' case, M. and M. 341 (6)
And by s. 35, “ if any person shall at any time be found fishing, against the provisions of this act, it shall be lawful for the owner of the ground, water, or fishery where such offender shall be so found, his ser
(a) 1 Eng. C. C. 269. (b) Eng. Com. L. Rep. xxii. 330.