of the frauds which may be committed on the ignorant and unwary are not punishable at common law; as the rule of the common law is confined to those cases merely where the deceit is of a kind calculated to injure the public in general, and does not reach those frauds the operation of which can extend no farther than the individuals affected by them. This defect is, however, amply supplied by the sections of the revised statutes to which we shall presently refer, embracing a class of cases as to which the common law is silent, and extending its provisions to all cheats by false pretences. Under the head of cheats every species of defrauding another by means of false pretences, or false tokens; or as it is sometimes termed, swindling, will be considered. By the article of the revised statutes respecting the false personating of another, and cheats, it is provided that every person who shall falsely represent or personate another, and in such assumed character shall, 1. Marry another; or 2. Become bail or surety for any party in any proceeding, civil or criminal, before any court or officer authorized to take such bail or surety; or 3. Confess any judgment; or 4. Acknowledge the execution of any conveyance of real estate, or of any other instrument which by law may be recorded; or 5. Do any other act in the course of any suit, proceeding, or prosecution, whereby the person so represented or personated may be made liable in any event, to the payment of any debt, damages, costs, or sum of money, or his rights or interests may in any manner be affected, may be imprisoned in a state prison for a term not exceeding ten years.(q) But no indictment for marrying another in an assumed character shall be found, unless upon complaint of the injured party, and within two years after the commission of the offence. (r) Every person falsely representing or personating another, and in such assumed character receiving any money or valuable property of any description intending to be delivered to the individual so personated, is to be punished in the same manner and to the same extent as for stealing such money or property.(s) By the 51st section, the fraudulent production of an infant, falsely pretending it to have been born of parents whose child would be entitled to a share of any personal estate, or to inherit any real estate, with the intent of intercepting the inheritance of any such real estate, or the distri (q) 2 R. S. 676, § 48. (r) Idem, § 49. (s) Idem, § 50. bution of any such personal property from the person entitled thereto, is punishable by imprisonment in a state prison not exceeding ten years. (t) By the 52d section it is provided, that every person to whom an infant under the age of six years shall be confided, for nursing, education, or any other purpose, who shall, with intent to deceive any parent or guardian of such child, substitute and produce to such parent or guardian another child in the place of the one so confided, shall be imprisoned not exceeding seven years. (u) The section respecting false pretences, or swindling, is as follows: Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretence, obtain the signature of any person to any written instrument, or obtain from any person, any money, personal property, or valuable thing; shall be punished by imprisonment in a state prison not exceeding three years, or in a county jail not exceeding one year, or by a fine not exceeding three times the value of the money, property, or thing, so obtained; or by both such fine and imprisonment.(v) If the false token by which such money or property is obtained, be a promissory note, or other evidence of debt, purporting to have been issued by any bank or monied corporation not in existence, the punishment is increased to imprisonment not exceeding seven years. (w) It Previous to the revised statutes, the false personating of another in marrying, was only a misdemeanor. The other cases of false personation mentioned in the 48th section of the statute are offences against public justice, and were felonies before the revised statutes were passed. has been decided, under the English statute, which is similar to ours, that the mere personating of bail before a judge at chambers, which is not filed of record, is a misdemeanor only. (x) And if bail be put in under feigned names, there being no such persons to be defrauded, it is not a felony. (y) Upon a prosecution for a false personation, either under the 48th or 50th sections of the statute, there must be some evidence to show that there was some person of the name and character assumed, who was either entitled, or might, prima facie at least, be supposed to be entitled to receive the money or property delivered; or who was in a situation to be made liable to the payment of any debt, &c. But it has been held that the of (t) 2 R. S. 676, § 51. (u) Idem, § 52. (v) Idem, § 53. (w) Idem, § 54. (x) 1 Hale, 696. 2 Sid. 90. fence is the same, though the person personated was dead at the time of the offence committed. (z) The 51st and 52d sections relate to cases which were not felonies previous to the revised statutes, and for which no provision was made in any previous statute; though such offences would probably have amounted to misdemeanors at common law. It has been decided that the 53d and 54th sections of the statute, which relate to obtaining goods by false pretences, extend to every case where a party has obtained money or goods by falsely representing himself to be in a situation in which he is not, or by falsely representing any occurrence that has not happened, and to which representation persons of ordinary caution may give credit. (a) In an indictment for obtaining goods by false pretences, all the false pretences relied on to sustain the indictment and to convict the accused, must be specially negatived; but to authorize a conviction, it is not necessary to prove all the pretences laid in the indictment to be false, unless all are material to constitute the offence charged. (b) Where one or more of the pretences are proved to be false, and those are sufficient, per se, to constitute the offence, the accused will be con-. victed, notwithstanding there is no proof that the other pretences alleged in the indictment are false. (c) Nor is it necessary to a conviction that the pretences proved to be false should be the sole or only inducement to the credit, or delivery of the property. It is enough if they had so material an effect in procuring the credit or inducing a delivery of the property, that without their influence upon the mind of the party defraud ed, he would not have given the credit, or parted with the property. (d) In an indictment under the statute, for obtaining, by false pretences, the signature of a person to a written instrument, it is not necessary to charge loss or prejudice to have been sustained by the prosecutor. The offence is complete when the signature is obtained by false pretences, with intent to cheat or defraud.(e) But it has been decided by the supreme court, in a more recent case, that to bring a case within the statute, the instrument must be of such a character as that it may work a prejudice to the property of the person signing it, or some other person.(f) The obtaining of an endorsement to a promissory note by false pre (z) Russ. & Ry. C. C. 324, 327. (a) 11 Wend. 557. 3 T. R. 93. (b) ld. ib. (c) Id. ib. 9 Wend. 182. 13 id. 87. (d) 11 Wend. 557. (e) Id. 18. f) 17 id. 540. tences, and with a fraudulent intent, and which the party obtaining it has actually used for his own benefit, is obtaining money, goods, or chattels or other effects, by false pretences, within the spirit of the statute. The words other effects, in our statute, are equivalent to the words or other valuable thing, in the British act. But whether a note or endorsement of which no use has been made can be considered either money, goods, chattels, other effects, or valuable thing, seems somewhat doubtful.(g) By the revised statutes, the obtaining, by false pretences, the signature of another to a written instrument, is classed with the obtaining of money by false pretences. A writing in the form of a bond, not having, or purporting to have, the signature of any person attached to it, is not a false writing, within the meaning of the statute. To constitute it such, it must be some instrument, letter, or other writing false in fact, but purporting to have been signed by some person, and to be his act, and so framed as to have more weight and influence in effecting the fraud of obtaining a signature to a written instrument, or obtaining goods, &c. than the mere naked assertion of the party defrauding.(h) As to the time when the false representations are made, it has been decided in a late case, by the court of errors, that if the false pretences are not made until after the goods are actually delivered, and the sale is complete, the person cannot be convicted of obtaining the goods by false pretences.(i) Where a signature to a note has been obtained by false pretences, and the party defrauded has been obliged to pay the note, the indictment may charge the sum paid to have been obtained by false pretences; without setting forth the obtaining of the signature.(k) An indictment will not lie for obtaining money by false pretences, where the money is parted with as a charitable donation, although the pretences moving to the gift are false and fraudulent.(7) The term "false pretences," used in the statute, is of great latitude. It includes every extortion of money or goods with an intent to defraud; and was used to protect the weaker part of mankind; because all are not equally prudent. It seems difficult, therefore, to restrict the interpretation of it to such false pretences only against which ordinary prudence cannot be supposed sufficient to guard. (m) Barely asking another (g) 9 Wend. 182. (h) 13 Id. 311. (i) 14 Id. 546. (k) 13 Id. 87. And see 13 id. 311, as to form of indictment for this offence. (1) 17 id. 351. (m) 2 East's P. C. ch. 18, s. 8. 3 T. R. 103. for a sum of money is not sufficient; but some pretence must be used, and that pretence false; and the intent to defraud is necessary to constitute the crime. If the intent be made out, and the false pretence used in order to effect it, it brings the case within the statute.(n) It is not necessary that the false pretence should be in words. Thus, if a person obtain goods from another and gives, in payment, a check upon a banker with whom he has no cash and keeps no account, it is a false pretence within the meaning of act. (o) And so where the prisoner obtained money from the keeper of a post office, by assuming to be the person mentioned in a money order, which he presented for payment; though he made no false declaration or assertion, in order to obtain the money.(p) This offence, however, would more properly come within the section of the statute respecting false personation. And where the prisoner obtained pay for the carriage of goods, upon the false pretence that he had delivered them and taken a receipt for the same, which he had lost or mislaid, it was held to be within the statute.(q) So of the making a false account of the number of workmen employed in a certain business, by which the prisoner, who was entrusted to pay them, obtained a larger sum than was due to them for their wages. (r) Obtaining goods from another under pretence that prisoner lived with A., who sent him for them ;(s) obtaining goods and money upon a forged note of hand ;(t) or upon a pretence by defendant that he was entrusted by the Duke of L., to take some horses from Ireland to London for him, and that he had been detained so long by contrary winds that his money was all spent ;(u) all these cases were held to come within the act. But the pretence must be of some existing fact, made for the purpose of inducing the prosecutor to part with his property. Therefore, a pretence that the party would do an act he did not mean to do, as a pretence to pay for goods on delivering, is not a false pretence within the act, but merely a promise for future conduct.(v) The pretence must be for the purpose only of obtaining the property. Therefore, a pretence to a parish officer, as an excuse for not working, that the party has not clothes, when he really has, though it induce the officer to give him clothes, is not a false pretence within the statute; the statement being rather a false excuse for not working, than a false pretence to obtain goods. (w) If a (n) 3 T. R. 98. (0) 3 Camp. Rep. 370. 7 Car. & P. 825, 784. 14 Wend. 559. (p) Russ. & Ry. C. C. 81. 2 East's P. C. 830. (s) 12 John. Rep. 292. (v) Russ. & Ry. C. C. 461. |