People v. Hart

Taking as a premise the rule of pleading that the indictment must contain a plain and concise statement of the acts constituting the crime (Crim. Code, § 275), it becomes necessary in the first instance to determine what aré the acts which constitute the crime of larceny by false pretense.

Obtaining property by a fraud which did not amount to a defined felony was not an indictable offense at common law, unless it affected the public. It was said by Lord Mansfield that £C an offense to be indictable must be such an one as affects the public.” Fraud by a false token designed to cheat only the individual was not indictable. It had to be a fraud by a false token designed to cheat the public generally — such as false weights and measures. To protect the individual it was declared by 33 Henry VIII that fraud upon the person by means of privy tokens was a misdemeanor. But this statute was found to be inadequate, as it did not reach a fraud by verbal false pretense where no real or visible token was used.

The statute against false pretenses was then enacted (30 Geo. II, chap. 24), which declared that “ all persons who knowingly and designedly by false pretense or pretenses obtained from any person money or goods, wares or merchandise, with intent to cheat and defraud, should be deemed offenders against law.” By

From an abundance of authorities these essentials may be deduced, as (1) an intent to defrau'd; (2) a false pretense with knowledge of its'falsity; (3) a fjaud committed by means of the false pretense, and (4) reliance on the false pretense by the person defrauded. 2 Bish. Crim. Pro.., § 163; People v. Thompson, 1 Park. Crim. 501; Commonwealth v. Drew, 19 Pick. 179 ; People v. Haynes, 14 Wend. 546 ; Watson v. People, 87 N. Y. 564 . Not only must these essentials be pleaded and the false pretenses negatived, but they must be proved as laid before a conviction can be had. 2 Bish. Crim. Pro., §§ 178-183; 2 Maule & Selwyn, 379. The “ acts ” constituting the crime are, therefore, the intent, the pretense, the fraud and the reliance, and these must be plainly set forth in the indictment. Crim. Code, § 275, supra. That the indictment correctly and sufficiently contains a statement of three of the “ acts,” intent, fraud and reliance, is not questioned, but that it fails to do so as to the “ act ” of false pretense is made the crux of the question raised by the demurrer.

An authoritative definition of a “false pretense” must be ascertained before applying it as a test to the assailed pleading. The term “ false pretense,” when used in a criminal statute, must be taken in its legal and not its literal sense, because in law it has a well-defined and appropriate meaning. State v. De Lay, 93 Mo. 98 ; Chapman v. State, 2 Head, 36 . Roscoe says,. in Criminal Evidence (7th ed., p. 478): “ The false pretense laid in the indictment must be of some present existing fact, and not of some future event, or a mere promise.” Bishop (2 Crim. Law, § 415) defines it as “ Such a fraudulent representation of an existing or

“ The pretense must relate to an existing or past fact.” (People v. Johnson, 12 Johns. 292 ; People v. Tompkins, supra; Scott v. People, 62 Barb. 71 ), and “ a false promise to do an act depends on a future event, and is not a false pretense.” Ranney v. People, 22 N. Y. 414 . “A promise is not a pretense” (People v. Williams, 4 Hill, 9 ), and “ an opinion or profession of intention, even though thereby a fraud be committed, is not a false pretense.” 2 Bish. Crim. Law, § 416; Martin v. State, 36 Tex. Crim. 125 . To the same effect are numerous other authorities, but sufficient have been cited to firmly establish the rule that false pretense must relate to a past or present fact, and not to an opinion, promise or profession of purpose.

The “ statement of acts ” contained in the indictment which must be tested by this rule is, the defendant did “ falsely and fraudulently pretend and represent that he was desirous of entering largely into the ownership and management of saloons and other places for the sale of liquor and for public entertainment, and that he was desirous of so beginning such business venture by the purchase of the liquor saloon, fixtures, stock, license, etc., of the value of two thousand five hundred dollars ” — that he further falsely pretended and represented that he “ was the owner and in possession of two houses and lots of land * * * that he was not then and there possessed of the ready money wherewith to pay the agreed purchase price ' of said saloon, * * * and was desirous of paying therefor by two hundred dollars cash and his certain note for the sum of twenty-three hundred dollars, payable in sixty days * * * and that a certain memorandum in writing * * * exhibited and presented by him * * * was a good and sufficient instrument subjecting and mortgaging the said two houses and lots of land * * * and a good and valid lien securing the payment of the (aforementioned) promissory note * * * and falsely pre

It is then alleged that believing said pretenses and representations the complainant was induced to and did part with his property. These allegations condensed are that the defendant was (1) “ desirous ” of owning saloons; (2) that he was “ desirous ” of purchasing the saloon of the complainant; (3) that he was the owner and in possession of two houses and lots of land; (4) that he did not have the money to pay for the saloon; (5) that he was 4‘ desirous ” of “ paying ” therefor by part cash and his promissory note; (6) that a certain writing was a valid lien on the houses and lots as security for the payment of his note and prevented their sale until the note was paid.

Grouping these allegations, there are three of desires, one of impecuniosity, one of opinion on the legal effect of a writing, and •one of ownership of land.

Each of the. desires is legitimate. A man’s “ desires ” for the acquisition of wealth or property may be boundless, and no law ever was or ever can be enacted which could limit their conception or expression. Such an emotion as “ desire ” cannot- be measured by a penal statute, much less reduced to the concrete form of fact. How can a man’s “ desires ” be proved? How can they When alleged be negatived? And yet this indictment negatives that which cannot be proven: “ Whereas in fact the defendant was not desirous of entering into the ownership of saloons ■or desirous of beginning such business by .the purchase of the saloon, * * ■* or desirous of paying for the saloon.” If these averments were intended as allegations of fact they formed a constituent element of the offense charged, and consequently became material averments which would have to be proved upon the trial. Since material averments must be susceptible of proof, and the proof must coincide with the averments, and it being manifest that these averments are not susceptible of proof, and that no proof could be given which would coincide with them, it logically follows that they are immaterial and in no sense “ a statement of the acts constituting the crime.”

The contention that they may be taken as showing the evil mind of the accused does not enhance their value, as that quality

This is the one representation of an existing fact. Was it the inducing cause of the complainant parting with his property, or was it a statement as to the defendant’s means and ability to pay for the property he had purchased. The indictment says that the complainant “ did then deliver to the defendant the said saloon and property therein, and did then receive therefor from the defendant the sum of two hundred dollars in case, the said written statement (security) and the said promissory note.” From this it is clear that the ownership of the land was not the inducing cause of the complainant parting with his property, but the cash and the note were.

The title and possession passed from the complainant, and he accepted in return part payment in cash and a promise to pay the balance. The principal obligation was the' promise. The ownership of the land was incidental. True, the representation of ownership of the land accompanied the promise, but although the promise be coupled with the statement of an existing fact, yet if the property was obtained by relying on the promise the offense is not committed. People v. Thompson, supra.

Assume that the defendant did own the land. He could have sold or mortgaged it before the maturity of the note, and the complainant could not realize upon. it. In such case the defend

Since, therefore, the defendant was free to dispose of his land — if he owned it —without incurring the penalty for false pretense, the complainant could not be deprived of a security which he never possessed, and it follows that the representation of ownership was not the moving cause. This conclusion is borne out by the pleader, who, in his brief, says: “ The allegation by the defendant of his ownership of the land is not made as a pretense by means of which a purchase of property was made, but in support of the false pretense that the ‘ writing ’ was a good and sufficient mortgage guaranteeing the payment of the note.” It is conceded that the property was not sold to the defendant on the credit of his owning the land, and that if such were the case his representation would have to be in writing. § 544, Penal Code.

By the demurrer the facts are admitted, and from them it can be gathered that by falsehood and dishonest dealing the complainant was deprived of his property. But it is not every lie or dishonest or fraudulent act that comes within the purview of the criminal law, nor can it protect men from the consequences of their own credulity or folly. All moral delinquencies cannot be prevented or" punished, and the only safe rule in the administration of criminal .justice‘is to confine its application to those acts which the law expressly condemns.

This indictment does not contain a statement of the acts constituting the crime of larceny by false pretense, and I, therefore, allow the demurrer.

Demurrer allowed.