dence, said: "This is an exception to the general rule of evidence. But it must be considered that it is to prove a fact not provable by direct evidence, that is, a guilty knowledge and purpose of mind, which can rarely be proved by admissions or declarations, and can in general be proved only by external acts and conduct. The case is strictly analogous to the rule in relation to the proof of scienter on a charge of passing counterfeit bills or coins."

An indictment charging false pretenses made to a certain person, and money paid by him on the strength thereof, is supported by proof that the false representations were made to an agent who communicated the same to the principal. Com. v. Call, 21 Pick. 521, 32 Am. Dec. 284; Roberts v. People, 9 Colo. 458; 1 Whart. Am. Crim. L. § 598; 2 Whart. Am. Crim. L. §§ 2145, 2146.

To constitute the crime of obtaining property by false pretenses under the statute, two things are essential, viz: a false representation as to an existing fact and a reliance upon that representation as true. People v. Tompkins, 1 Park. Crim. Rep. 224.

Every species of fraudulent pretense is included within the comprehensive terms employed by the various statutes in defining this offense. It does not matter what the nature of the transaction is, if money be obtained in the manner and by the means indicated in the statute. So long as there is a false representation designedly made, with the intent to cheat and defraud, it is enough to satisfy the requirement of the law. It is true that it must be a representation which affects and influences the mind of the prosecutor and induces him to sign the instrument, or to part with his money or property, and to surrender it by reason thereof. The question to be determined is, whether the false pretense charged and proven is of such a character that it is capable of defrauding and that the prosecutor could have been deceived by it. In some of the cases decided in New York as well as the English statute which is of a similar import and substantially the same as the first named statute, there was some hesitation as to whether it should not be interpreted, having in view the restriction which existed at common law in cases of a similar character. But this disposition has yielded to a more just construction so as to give full force and effect to the statute and to furnish protection to those who, from undue confidence in others, or inexperience, are liable to become the victims of dishonest, artful and designing dealers. This interpretation is more consistent with the

intention of the law makers and the object in contemplation which was evidently to make a party responsible criminally for any false representation of a material fact designedly made with a fraudulent purpose in view and which did have the effect to cheat and defraud another. This rule has generally been upheld in the decisions with the exception perhaps of People v. Williams, 4 Hill, 9, 40 Am.Dec. 258, which may be regarded as tending in a different direction, although the precise point which now arises was not in that case. The later cases of People v. Crissie, 4 Denio, 525; Thomas v. People, 34 N. Y. 351; People v. Sully, 5 Park. Crim. Rep. 143; People v. Oyer & Terminer Ct. 83 N. Y. 436, are in a contrary direction. Watson v. People, 87 N. Y. 561, 41

Am. Rep. 397.

The English decisions fully sustain the doctrine that it is enough that the pretense was made knowingly and the money obtained thereby with the intent to defraud and that the pretense was false to the knowledge of the person making it. Hamilton v. Reg. 9 Q. B. 271; Reg. v. Wickham, 10 Ad. & El. 34.

Judge Morton in an early Massachusetts case outlines the prevailing rules that govern the production of evidence in actions for false pretenses, I excerpt from his opinion in Com. v. Drew, 19 Pick. 179.

What is a false pretense, within the meaning of the statute? It may be defined to be a representation of some fact or circumstance, calculated to mislead, which is not true. To give it a criminal character there must be a scienter and a fraudulent intent. Although the language of the state is very broad, and in a loose and general sense, would extend to every misrepresentation, however absurd or irrational or however easily detected; yet we think the true principles of construction render some restriction indispensable to its proper application to the principles of criminal law and to the advantageous execution of the statute. We do not mean to say that it is limited to cases against which ordinary skill and diligence cannot guard; for one of its principal objects is to protect the weak and credulous from the wiles and stratagems of the artful and cunning; but there must be some limit, and it would seem to be unreasonable to extend it to those who, having the means in their own hands, neglect to protect themselves. It may be difficult to draw a precise line of discrimination applicable to every possible contingency, and we think

it safer to leave it to be fixed in each case as it may occur. Young v. Rex, 3 T. R. 98; 2 East, P. C. 828.

It is not the policy of the law to punish criminally mere private wrongs. And the statute may not regard naked lies, as false pretenses. It requires some artifice, some deceptive contrivance, which will be likely to mislead a person or throw him off his guard. He may be weak and confiding and his very imbecility and credulity should receive all practical protection. But it would be inexpedient and unwise to regard every private fraud as a legal crime. It would be better for society to leave them to civil remedies. Rex v. Goodhall, Russ. & R. 461; Roscoe, Crim. Ev. (2d ed.) 419.

The pretense must relate to past events. Any representation or assurance in relation to a future transaction, may be a promise or covenant or warranty, but cannot amount to a statutory false pretense. They afford an opportunity for inquiring into their truth, and there is a remedy for their breach, but it is not by a criminal prosecution. Stuyvesant's Case, 4 City Hall Rec. 156; Rex v. Codrington, 1 Car. & P. 661; Roscoe, Crim. Ev. (2d ed.) 422. The only case, Young v. Rex, 3 T. R. 98, which has been supposed to conflict with this doctrine, clearly supports it.

In 3 Archibold, Criminal Practice & Pleading, 467, it is said: "In order to convict a man of obtaining money or goods by false pretenses, it must be proved that they were obtained under such circumstances that the prosecutor meant to part with the right to the property in the thing obtained, and not merely with the possession of it." State v. Anderson, 47 Iowa, 142.

It is not necessary that the proof should be direct but such evidence must be given and such facts established as tend legitimately and necessarily to show the existence of such intent. People v. Pinckney, 51 N. Y. S. R. 310; Lesser v. People, 73 N. Y. 78.

The gist of the offense is that the false pretense must be of a past event, or of some fact alleged to have a present existence, and not of something to happen hereafter. Mere falsification is not sufficient to maintain an indictment for this offense. Jones v. United States, 5 Cranch, C. C. 653; Ranney v. People, 22 N. Y. 413; Keller v. State, 51 Ind. 111; Lesser v. People, 12 Hun, 668; State v. Mills, 17 Me. 211; State v. Rowley, 12 Conn. 101; Com. v. Drew, 19 Pick. 179.

§ 436. Must Relate to an Existing Fact.-The frequency

with which indictments for this offense are found and tried, will excuse an extended examination of the principles that must underlie and characterize the prosecution or the defense, or should govern the juridical view of the crime, when in the charge to the jury it becomes necessary to properly outline its characteristics— or suggest the implications the evidence necessarily involves, or the nature and scope of the facts necessary to be shown in order to sustain a conviction.

A very recent case decided by the supreme court of Pennsylvania, well states the prevailing view in that jurisdiction. And after a critical examination of various statutory regulations on the subject, the phraseology of the Pennsylvania law is found to be similar in import with that employed in several other instances. Under these circumstances, I shall consider myself warranted in citing a somewhat extended extract from the opinion of Mr. Justice Paxson:

"The question is whether the indictment sets forth an indictable offense. It contains two counts, in each of which the defendant is charged with cheating by false pretenses. The particular act alleged was the procuring of the prosecutor's indorsement of the defendant's promissory note, and the false pretense charged consisted in his representing that he would use the note so indorsed to take up and cancel another note then about maturing, and upon which the prosecutor was liable as indorser. In other words, the note was given in renewal of another note of like amount, and the indictment charges that the defendant, instead of using it for this purpose, procured it to be discounted and used a portion of the proceeds for other purposes.

ure.

"A false pretense, to be within the statute, must be the assertion of an existing fact, not a promise to perform some act in the futThe man who asserts that he is the owner of a house states a fact, and one that is calculated to give him a credit. But a mere failure to keep a promise is another and very different affair. That occurs when a man fails to pay his note. It is true Chief Justice Gibson doubted, in Com. v. Burdick, 2 Pa. 164, 44 Am. Dec. 186, whether every naked lie by which a credit has been gained is not a false pretense within the statute. This doubt has run its course, and has long since ceased to disturb the criminal law of this state.

"In the case in hand there was no assertion of an existing fact, nor was there anything done by which even a credit was given. The credit had been obtained when the original note was indorsed; the present note was indorsed in lieu of and for the purpose of taking up the original; the failure to use it for such purpose was certainly a dishonest act on the part of the defendant, but we do not think it punishable under the statute defining false pretenses." Com. v. Moore (Pa.) 3 Crim. L. Mag. 839.

66

False pretense relates not merely to the general mode of dealing of him who makes it, but the nature of the transation in which he is then engaged. If he is the proprietor of a retail store, and buys goods in the usual way, to be sold therein, he is carrying on business and dealing in the regular course of trade;" but if he buys goods to be carried away, and sold at wholesale for half their value, he is not "dealing in the ordinary course of trade." The representation of his intention in regard to the disposition of the property may be an important element in the pretense that he is dealing in the ordinary course of trade. Indeed, it may be the characteristic and distinguishing feature of the false pretense. The act of purchase in its external features is the same whether it is in the ordinary course of dealing or a wrong. ful procurement of property with intent to defraud. The intention of the purchaser in reference to the disposition of the goods makes it the one or the other, and his statement of that intention, in connection with a representation that he is the proprietor of a retail store, may be in itself a statement that he is dealing in the ordinary course of trade, or that he is not, according as he says that he expects to sell the goods in his store in the usual way, or that he intends to devote them to a different kind of use. It must be a statement of a fact, and not a promise, or a mere expression of a purpose. Com v. Walker, 108 Mass. 309. To constitute the offense it is not necessary that the pretense should be made in the express words set out in the statute. It is enough if it is plainly and intelligibly made in any form of words. Com. v. Drew, 153 Mass. 588, 13 Crim. L. Mag. 736.

It must clearly appear in evidence that the accused obtained the title, together with the possession of the complainant's property, by means of false pretense, as it is well settled that mere possession, in the absence of any intent on the part of the owner to renounce the title, constitutes a different offense.

State v.