ness to consent estops § 1189. Yet, on the other hand, carelessness so gross as to Careless- amount to a consent to fraud, estops the prosecutor amounting from maintaining a prosecution. Thus, in Massachusetts, in 1865, it was held that obtaining money from prosecutor. the prosecutor on the ground that on a former occasion he had not given due change, was not within the statute.2 And in North Carolina, in 1877, a pretence that "certain cotton was good middling," was held not within the statute, in a case where the prosecutor had on hand the means of detection.3 Trap set by prose cutor is no § 1190. If the defendant obtain the money by a false pretence, knowing it to be false, it is no answer to show that the party from whom he obtained it laid a plan defence. to entrap him into the commission of the offence, if the prosecutor waived none of his legal rights. It is otherwise, of course, when the prosecutor is aware of the falsity of the pretences, and does not bona fide part with the possession of the goods. And carelessness or complicity amounting to consent, as we have just seen, estops the prosecutor.5 ecutor § 1191. There may be cases where both parties employed That pros- false representations; but if so, while each can be conmade false victed on an independent prosecution, neither can set tions is no up the other's guilt as a defence to an indictment against himself.6 representa bar. 1 See Bonnell v. State, 64 Ind. 498. Supra, §§ 143-9. 2 Com. v. Norton, 11 Allen, 266. 8 State v. Young, 76 N. C. 258. It was held in New York, on a demurrer, that an indictment for obtaining a watch from a person, upon the false representation that the defendant was a constable and had a warrant against such person, issued by a justice of the peace, for the crime of rape, and that he would settle the same if the person defrauded would give the defendant the watch, could not be sustained. The reasoning of the court seems to have been, that if the prosecutor was guilty of rape, he was in some degree "particeps criminis" with the prisoner, and hence 104 could make out no case; and if he was not guilty, the pretences were not sufficiently reasonable to impose upon a prudent man of average intelligence. People v. Stetson, 4 Barb. 151, 152; S. P., McCord v. People, 46 N. Y. 470. See People v. Williams, 4 Hill (N. Y.), 9. But this is not law where the prosecutor is simply the victim of ignorant terror, and endeavors under its influence to buy off a supposititious prosecution. Com. v. Henry, 22 Penn. St. 253. Supra, § 1151; R. v. Asterley, 7 C. & P. 191. R. v. Ady, 7 C. & P. 140. See supra, §§ 149, 917, 1039. Supra, § 149. 6 Com. v. Morrill, 8 Cush. 571; though see contra, McCord v. People, 46 N. Y. 470. The same remark applies, as has been seen, to cases where a trap was laid to catch the defendant in case he should attempt the cheat.1 prosecu § 1192. That gross credulity is no defence is illustrated by the prosecutions sustained against conjurors and fortune Nor is tellers. Nothing but gross credulity could be imposed tor's gross on by such pretenders; yet it is on behalf of those credulity. thus imposed on that prosecutions have been sustained.2 3 "brag and loose talk are not within statute. § 1193. While a false affirmation may be within the statute, such is not the case with loose talk, or the statement But of vague conjectural opinion. Thus, where a servant went into the prosecutor's store, and said he wanted some money for his master to buy some wheat, and the prosecutor gave him ten pounds, this was held not within the statute. And so where the indictment alleged that the defendant falsely pretended that a sum of money, parcel of a certain larger sum, was "due and owing" to him for work which he had executed for the prosecutors, this was held not to be an allegation of a false pretence of an existing fact, as the allegation in the indictment might be satisfied by evidence of a mere matter of opinion, either as regarded fact or law, and therefore the indictment was bad.6 A loose statement, also, that a third person owed the defendant, without saying how much, has been held not to be an adequate pretence. § 1194. That the prosecutor was indebted to the defendant in an amount equal to the value of a chattel obtained by Indebtedthe false pretences is no defence. But it is otherwise 1 Supra, § 1190. 2 R. v. Giles, L. & C. 502; 10 Cox C. C. 44. See State v. Phifer, 65 N. C. 321; and supra, § 1140. 3 Supra, § 1154; R. v. Hamilton, 9 Adol. & El. (N. S.) 271; Com. v. Henry, 22 Penn. St. 253; State v. Phifer, 65 N. C. 321; Johnson v. State, 41 Tex. 65. 4 R. v. Williamson, 11 Cox C. C. 328. See State v. Tomlin, 5 Dutch. 14. See supra, §§ 1154, 1160, as to "puffs." ness of prosecutor 5 R. v. Smith, 2 Russ. on Cr. 312; Com. v. Barker, 8 Phil. 613. 6 R. v. Oates, 29 Eng. L. & Eq. 552; Dears. C. C. 459; and see also R. v. Wakeling, R. & R. 504, where the defendant, as an excuse for not working, said he had "no shoes," upon which a pair was given to him. 7 State v. Magee, 11 Ind. 154. People v. Smith, 5 Parker C. R. See supra, § 884. 490. to defendant no defence. paper within when money is paid in satisfaction of a debt actually due.1 11. Property included by Statutes. § 1195. Under the New York statute, making it indictable to Negotiable obtain by false pretences "signatures to a written instrument," it is necessary, to constitute the offence, that the instrument should be of such a character as likely to work a prejudice to the signer, though the fact that it would have been void for fraud will be no defence.2 statute. An indorsement of a negotiable promissory note is within the statute.3 It is not necessary that any actual loss should be sustained by the maker of the signature fraudulently obtained.* Thing obtained must be of some value. § 1196. Value, however, is a necessary essential of the article, in order to bring it within the statute. Thus in Pennsylvania it was held that obtaining a receipt in discharge of a debt, by means of a worthless note of a broken bank, is not within the 21st section of the Act of 12th July, 1842, the reasoning of the court being apparently that the receipt was a thing of no account, not being an extinguishment of the debt.5 Value, however, is to be inferred from facts. But no special value need be averred, unless required by statute.2 Money isfaction of paid in satdebt not § 1197. A false representation, as has been already incidentally noticed, which induces a party to pay an honest lawful debt is not within the statute. And where an indictment charged that T., who held a promissory note against J., which was due, called for payment, statute. 1 Com. v. Coe, 115 Mass. 481. See supra, § 955. 2 Infra, § 1221. 3.Com. v. McDuffy, 126 Mass. 467. In this case, Lord, J., said: "The only question in this case upon which we feel called upon to give an opinion is whether the instructions requested by the defendant, or either of them, should have been given. Those prayers for instructions were as follows: 1. If McDuffy only received, at the time of the settlement with Sweetser, money enough to pay what was actually due him, then this indictment cannot be maintained. 2. If McDuffy made representations only for the purpose of getting the money due him, and not for the purpose of obtaining money not due him, then this indictment cannot be maintained.' These instructions were not given in terms, but instead thereof the court 'did rule that if the defendant made the false representations for the purpose of obtaining money that he believed to be due to him, and believed that he had a right so to obtain the money, the indictment could not be sustained.' It is not easy to understand why, in view of the law as stated by the presiding justice, evidence of the exact amount of indebtedness to the defendant was excluded; for such evidence would be apparently competent upon the issue of the defendant's belief. Nor do we see how the question whether the defendant believed that he had a right so to obtain the money can of itself be a de n cisive test of his guilt or innocence. We understand the word right to signify legal right and not moral right, although its use might perhaps tend to mislead the jury, and lead them to suppose that, in order to acquit the defendant, he must have believed that he had a moral right to lie and deceive for the purpose of obtaining what was justly due him. We do not, however, decide the case upon any criticism of the particular form of language in which the instruction was given, nor upon any apparent inconsistency between the instructions given and the rules previously laid down as to the admissibility of evidence. We understand the broad and naked question to be presented, whether the offence of obtaining property by false pretences can be committed when the party charged obtains no more than is rightly due him by whatever fraudulent means or devices he thus obtains it. We are not aware that the precise question now presented has ever been considered by this court; and we have not been able to find any decision in any court of last resort that a party may be convicted of the crime of obtaining property by false pretences, when he has obtained nothing in value which he would not be entitled to as of right. Com. v. Drew, 19 Pick. 179; Com. v. Jeffries, 7 Allen, 568; Rex v. Williams, 7 C. & P. 354; People v. Thomas, 3 Hill, 169; Com. v. Henry, 22 Penn. St. 253; People v. Getchell, 6 Mich. 496; Com. v. Thompson, Penn. Law Jour. 250; People and with intent to defraud J. falsely represented the note to have been lost or burned up, whereby the latter was induced to pay it; it was held insufficient to sustain a conviction, as not showing any legal injury resulting to J.1 § 1198. It has been held that merely obtaining credit was not within the statute in its original shape.2 Thus where, Credit on account will not dictment. to induce his bankers to pay his checks, a defendant sustain in- drew a bill on a person on whom he had no right to draw, and which had no chance of being paid, in consequence of which the bankers paid money for him, the statute was held not to cover the case, because he only obtained credit, and not any specific sum on the bill. But when the money or goods ultimately pass on the credit so obtained, the statutory offence is consummated, and even for the credit, the defendant may be convicted of an attempt.5 v. Genning, 11 Wend. 18; 2 Russ. on Cr. 312; 1 Bishop's Crim. Law, § 525; 2 Ib. § 442. We are, of course, not to be understood as deciding that a mere pretence of indebtedness, by the person from whom the property is obtained, is sufficient; nor is anything which we decide to be construed as in conflict with the well established rule of law, that a party is to be presumed to intend all the natural and ordinary consequences of his acts, and fraud and falsehood are always evidence tending to show that the party had a dishonest purpose; and the question for the jury to decide is, whether, upon all the facts and circumstances, the defendant had an intent to defraud and effected that purpose, and whether, in order to accomplish it, he made use of fraudulent representations and succeeded by means of such representations. We think, therefore, that the defendant should have been allowed to offer evidence in support of the facts upon which his prayers are predicated, and the jury should have been instructed that, if proved, the defendant was entitled to an acquittal, and for this reason the exceptions must be sustained." S. P., Com. v. Thompson, Lewis C. L. 197; Com. v. Henry, 22 Penn. St. 253; State v. Hurst, 11 W. Va. 54. In R. v. Williams, 7 C. & P. 354, C. owed D. a debt, of which D. could not get payment. S., a servant of D., obtained from C.'s wife two sacks of malt, saying that D. had bought them of C. S. knew this to be false, but took the malt to D., his master, so that he could be paid the debt due him from C. It was ruled that if S. did not intend to defraud C., but merely to put it into his master's power to compel C. to pay him a just debt, S. ought not to be convicted of obtaining the malt by false pretences. 1 People v. Thomas, 3 Hill (N. Y.), 169. 2 R. v. Eagleton, Dears. C. C. 515; 6 Cox C. C. 559. 8 R. v. Wavell, 1 Mood. C. C. 224. See R. v. Bryan, 2 F. & F. 567. 4 R. v. Kenrick, 5 Q. B. 49; R. v. Abbott, 1 Den. C. C. 273. Supra, § 1180. 5 Supra, §§ 173–199. |