By statute conviction may be By statute in England and in several of the United States, there may be a conviction of an attempt under indictment for the substantive offence, though at common law this is not permissible. Hence we have a number of reported cases where there was a conviction of the attempt under the ordinary indictment for obtaining goods by false pretences.1 had of atunder in tempt dictment for complete offence. may be § 1230. In attempts, the question of prudence or im- Conviction prudence of the prosecutor does not arise; and a conviction be had where there was a fruitless attempt to obtain goods by a false pretence.2 may had irreprosecu spective of tor's prudence. Attempt may be sustained where only obtained. credit is § 1231. The same distinction applies where only credit on account is shown to have been secured. It has been already seen that an indictment for the consummated offence cannot be sustained when only a credit on account was obtained. But under these circumstances, as is elsewhere more fully noticed, the defendant may be convicted of an attempt.4 Question of attempt is for jury. § 1232. It is for the jury to determine whether the attempt was really made. Thus where C., being employed at a hospital, wrote to the prosecutor, as manager, for a small quantity of linen, not saying it was for the hospital, and the goods were really ordered for himself, but not sent; on an indictment for an attempt to obtain them, the question left to the jury was, whether he ordered the goods as for and on behalf of the hospital or in his own name, there being no evidence of an intention to pay cash, but evidence of the absence of such intention.5 General character of instru § 1233. In an indictment for an attempt to obtain by a false written instrument, a variance as to the instrument is fatal. Thus it has been ruled that where the indictment charges the instrument to be a money order, and the proof does not sustain this, a conviction is errone 1 R. v. Roebuck, Dears. & B. 24; 7 Cox C. C. 126; R. v. Ball, C. & M. 249; R. v. Hensler, 11 Cox C. C. 570; R. v. Francis, L. R. 2 C. C. 128; 12 Cox C. C. 612. VOL. II. ment must be designated. 2 R. v. Roebuck, supra; R. v. Ball, supra. Supra, § 199. 3 Supra, § 1198. 4 R. v. Eagleton, Dears. C. C. 515; 6 Cox C. C. 559. Supra, § 1159. 5 R. v. Franklin, 4 F. & F. 94. 129 ous. But the instrument need not, if correctly designated, be set out.2 Means of attempt must be averred. § 1234. Nor is it sufficient baldly to aver an "attempt," without in some way stating the means. Thus, an indictment was held bad which stated that A. did unlawfully attempt and endeavor to obtain from B. a large sum of money (stating it), with intent to cheat and defraud B. Receiving goods so obtained is 15. Receiving Goods obtained by False Pretences. § 1235. At common law, persons receiving goods knowing them to have been fraudulently obtained by false pretences will be indictable as accessaries after the fact, indictable. if the obtaining is a statutory felony; or, if cognizant of the original design, as principals, where the obtaining is a statutory misdemeanor. By statutes in England and elsewhere, however, such receiving is made a substantive offence. To sustain a conviction, in any view, it is necessary to prove that the defendant knew that the goods were obtained by false pretences.4 1 R. v. Cartwright, R. & R. 106. Supra, §§ 190 et seq., 1217. 2 R. v. Coulson, T. & M. 332; 1 Den. C. C. 592. Supra, § 1217. 130 8 R. v. Marsh, 1 Den. C. C. 505; T. & M. 192. Supra, §§ 190 et seq. 4 R. v. Rymes, 3 C. & K. 327. CHAPTER XIX. FRAUDULENT INSOLVENCY. I. FRAUDULENT CONVEYANCES. Under statute Eliz. making fraudulent II. SECRETING GOODS. Secreting goods made indictable by Secreting or assigning must be actual, § 1240. Intent or scienter must be shown, § 1241. I. FRAUDULENT CONVEYANCES. ute Eliz. making fraudulent ance is in convey dictable. § 1238. By the statute 13 Eliz., which makes void all conveyances, &c., with intent to defraud creditors, it is pro- Under statvided that the parties to any "such feigned, covinous, or fraudulent feoffment, gift, grant, alienation, bargain, conveyance, bonds, suits, judgments, executions," &c., "which at any time shall wittingly and willingly put in use, avow, maintain, justify, or defend the same or any part of them as true, simple, and done, had, or made bona fide, and upon good considerations; or shall aliene or assign any the lands, tenements, goods, leases, or other things before mentioned, to him or them conveyed as is aforesaid," besides the civil penalty, "being lawfully convicted thereof, shall suffer imprisonment for one half year without bail or mainprise." By statute 27 Eliz. the same provision is extended to those concerned in similar devices to defraud purchasers.1 Similar statutes have been adopted in several States of the American Union. In a leading case reported under the statute of 13 Eliz.,2 it was held in arrest of judgment, by Maule, J., delivering the 1 See 2 Russ. on Crimes, 315; Roberts's Digest Brit. Stat. 294; 1 Chitty's Stat. 385. to the English statute on fraudulent bankruptcy may be consulted Steph. Dig. C. L. art. 388; Brett, ex parte, 2 R. v. Smith, 6 Cox C. C. 31. As L. R. 1 Ch. D. 151. opinion of his brethren, that an indictment lies under the act for a fraudulent alienation of real estate.1 II. SECRETING GOODS. § 1239. By statutes in force in many States, the secreting of goods with intent to defraud creditors is an indictable offence. To constitute this offence it is necessary that dictable by there should be, Secreting goods is made in statute. 1st. An actual fraudulent secreting, assigning, or conveying of goods, &c., or a fraudulent reception of the same. 2d. An intent to prevent such property from being made liable for the payment of debts, or, in case of reception, a guilty knowledge of such intent.2 Secreting or assign ing must § 1240. 1st. There must be an actual secreting or assigning of the goods. It is not enough that the debtor, to his creditor's face, refuses to surrender property which the cred be actual. itor claims. Thus it was held that a refusal of a defendant to deliver up a watch to the sheriff's deputy was not within the statutes. The object of the law is not to make a man indictable who resists process, since for this another procedure exists, but to prevent the secret and covinous disposal of property in such a way as to elude the pursuit of the law and baffle an execution. A pointed illustration of this is the case of a trader, who, after obtaining credit by stocking his store with goods, either hides such goods until such time as he may be able, without suspicion or disturbance, to convert their proceeds to his own use, or consigns them to auction under such covers as may enable him to turn them into cash without his creditors' knowledge. It would seem, from analogy to the statutes of Elizabeth, that the offence would continue to be indictable, even if a consideration were received, if the intent to defraud were proved. § 1241. 2d. An intent must be shown to prevent the property Intent or from being made liable for the payment of debts; or, scienter in case of receivers, a guilty knowledge of such intent.a shown. It is not enough that the debtor's object was to give a preference to a particular creditor.5 must be 1 See, for form of indictment, Wh. Prec. 518. 2 See State v. Marsh, 36 N. H. 196; Com. v. Damon, 105 Mass. 580. 132 People v. Morrison, 13 Wend. 399. See People v. Underwood, infra. 4 See Com. v. Brown, 15Gray, 189; Com. v. Strangford, 112 Mass. 289. 5 Com. v. Hickey, 2 Parsons, 317. All creditors are protected by the act, and as "creditors," it seems, may be classed even those whose debts are not yet due. It is unnecessary that the prosecutors should be judgment creditors.2 1 Johnes v. Potter, 5 S. & R. 519. 2 People v. Underwood, 16 Wend. 546, citing Wiggins v. Armstrong, 2 John. Ch. 144. no creditor may be in a condition to question the validity of the transfer in the form of a civil remedy." Ibid. See generally Wharton's Precedents, Thus, in New York, Bronson, J., as follows: said: "The language of the act plainly extends to all creditors, and I can perceive no sufficient reason for restricting its construction to such creditors as have obtained judgments for their demands. The fraudulent removal, assignment, or conveyance of property by a debtor, which the legislature intended to punish criminally, usually takes place in anticipation of a judgment, and for the very purpose of defeating the creditor of the fruits of his recovery. If there must first be a judgment before the crime can be committed, the statute will be of very little public importance. This is not like the case of a creditor seeking a civil remedy against a fraudulent debtor. There the creditor must complete his title by judgment and execution, before he can control the debtor in the disposition of his property; he must have a certain claim upon the goods before he can inquire into any alleged fraud on the part of the debtor. But this is a public prosecution, in which the creditor has no special interest. The legislature has relieved the honest debtor from imprisonment, and subjected the fraudulent one to punishment, as for a criminal offence. The crime consists in assigning or otherwise disposing of his property, with intent to defraud a creditor, or to prevent it from being made liable for the payment of his debts. The public offence is complete, although (507.) Secreting, &c., with intent to defraud, &c. (508.) Second count. Same, with intent to defraud, and prevent such property from being made liable for payment of debts. (509.) Third count. Same. Not spec- (510.) Fourth count. Averring intent persons unknown. (513.) Another form on the same stat- (514.) Second count. Same, with in- (516.) Fourth count. Secreting, &c., (517.) Fifth count. Same, in another shape. (518.) Fraudulent conveyance under statute Eliz. c. 5, § 3. (519.) General form. (520.) Averring collusion with an other person. (521.) Same, but averring collusion with another person. |