*1 C., also en- Attorney, Washington, D. appellee. appearance v. UNITED STATES. tered an CHAPLIN No. Justice, and GRONER, Chief Before CLARK, Associate EDGERTON and Jus- Appeals States Court tices. District Columbia. Argued 18, 1946. CLARK, Associate Justice. Jan. un- appeal from a conviction This is an April 15, 1946.
Decided charg- indictment der the of an first count ing appellant wife with and his money by pretenses.1 by appellant points Of the several raised signifi- controlling we think one to be failed urges that the indictment cance. He charge because the one state- a crime re- alleged ment which to have he is subsisting lating fact traversed to a was not and no evidence was introduced to that one false. was statement To examine this contention turn we charged is there that indictment. below, appellant wife, and his co-defendant “ * * * defraud, felonious- ly pretend represent Violette did McMullen, they, being, and there then Chaplin Sydney the said said and the Dorothy Chaplin, engaged were wine liquor Alexandria, Virginia, business McMullen, she, and that the said Violette if * * * money,they, would advance certain purchase liquor stamps would certain EDGERTON, dis- Justice, Associate ** * money return senting. * * * * * any so advanced clause, (Italics added.) traversing “ * * * it is defendants purchase liquor stamps such * * * would not return ad- * * * * * * vanced knew.” apрears from the indictment prosecution’s necessarily case was Bilbrey, C., Mr. H. of Washington, D. J. intention, on the defendants’ founded at the Keliy,
with whom Mr. Frank Wash- J. acquiring time of not to do two C., ington, appel- brief, D. was on the (1) buy things promised: stamps, (2) lant. money. Both promises of these McLaughlin, things Mr. Arthur Assistant relate to defendants to do were J. Attоrney, Washington, United States D. in the future. Curran, prove whom misrepresented C. with Edward Mr. that the defendants M. Attorney, Washington, contrary, On the United States their business connection. C., brief, record appellee. D. appel Mr. Murray, wife were liquor lant and his in the Charles B. Assistant United States busi- 1940, § 22 — 1301. D.C.Code *2 698
ness, quantity of which large long been in actions they that used did own a stamps required for it unnec- state fraud and deceit.3 We think wine for which were buy essary advisability amount of trans- they small and that discuss the did stamps. question planting concept tax deci- criminal actions. our for this subject- “present There a difference between sion down to the vast comes whether ing penalties and a intention” the not to return defendant criminal defendants wrongs buy stamps providing the not to the for the redress of they “present through civil they said would relates to a actions. past support or fact” will existing such as this having A majority of the courts pre- for the crime of false conviction problem placed them have not sub before Crim- tenses. rule stated in Wharton’s “intention”, as theory scribed to the that “A Law, Ed., 1439, inal 12th is that: § promises, by misleading manifest false statute, pretense, the must re- false under alone, re standing the sense fact Any past existing late to a fact. event quired charge on for a conviction the representation regard future to a pretenses. cases For illustrative Thus, in- transaction excluded. Cir., 156 States, see:4 9 v. Biddle stance, statement, a false that a draft 759; Ferris, 562, 86 F. v. 171 Ind. State prosecutor the exhibits the defendant 173; 993, L.R.A.,N.S., People v. 41 N.E. has been from received a house of L.R.A., Orris, 244, 163, 121 52 41 Colo. P. abroad, and consid- credit is for а valuable N.S., 527, 170; Howd, 55 Utah State v. eration, faith of on the which he obtains 628; People Daniels, 188 Cal. 25 P. v. law; prosecutor’s goods, the within the 556; State, 34 App.2d 64, 76 Willis P.2d v. deposit with him a draft such 725; People, 363, Ariz. P. Chilton 271 v. time, though wilfully and at some future 870; State, 268, 95 35 Lamb P.2d v. Colo. false, intentionally pros- the 49; 931, 202 v. 155 State Ark. S.W.2d possession prop- parting ecutor’s with his 113; 351, Dоudna, 226 284 Iowa N.W. erty, pretense party that the is not. So Milikin, 287, 133 Stephens Ga.App. 35 v. that he do do an act not mean to did 67; Craft, 269, 126 v. 344 S.E. Mo. State (as pretense goods that he 177; State, 125 S.W.2d Harris v. Ohio St. judges not delivery) on was ruled all 104; 257, People Widmayer, 181 N.E. v. pretense to be a false under the Statute 540; 547, Vaughan 265 251 v. Mich. N.W. II., distinctly same rec- Geо. and the rule is Id., State, 674, 854; Ga.App. 36 137 S.E. ognized country, it being held this 854; 675, Ga.App. 36 137 v. S.E. McKee not a intention is state- statement 208, 888; State, Ala.App. 155 Peo 26 So. existing fact.” We think ment of ple Blanchard, 314; 90 v. N.Y. State Cf. great weight of sustains 853; Wren, 575, 62 v. 333 Mo. S.W.2d compels rule and an- statement of us to 942, Ritchie, 172 La. 136 State v. 11. So. question negative. in the swer the deeply our only Not rule is the rooted moreover, law, most brief, government we think the reasons In its stating point, upon cogent that Common founded are no which it less candid on this Althause, 32, today early 207 N. 93 were cases wealth Mass. than when L.R.A.,N.S., 999, 202, 31 from which were under statute E. decided rep Wharton, supra. was taken quotation did course of dictum cited now, authority. then, as weight of same the intention to true resent commit certain crimes two cases cited was ascertained the other may be finding from act and position looking prosecution’s backward on support the intended to do what study these
point.2
However, where,
here,
aсt
no
do.
concerned found
the courts
-namely,
complained
failure
difficulty
applying
“intention”
of-—
Fontana,
143 P.2d
107,
2
People
See:
140
D.C.,
92;
51 A.L.R.
Ames,
State
359. See
F.Supp. 55,
61
McMahon,
Cal.App.2d
also
;
68 A.L.R.
Smith v.
49 R.I.
L.R.
by present the ever that a debtor threat po- government’s we accept If were to the might subjected penalties if criminal way every vic- open sition would be the prosecutor the view jury were of the tim bargain of bad to resort to the time borrowing of he was men- judg- proceedings to awith even the score tally a prosecuting сheat. The risk of proof adversary. ment in No doubt the guilty who is nothing of a fail- more than development zeal our criminal of law the inability very ure or is a his debts which has protected the innocent are with real enough say consideration. It is not provided a guilty. of measure shelter the that if innocent the accusеd would found However, do wise to in- not think it we guilty. not stigma The social attaching to possibility crease the of conviction one accused of a crime the as well as bur- broadening accepted theory of the dens incident would, to the defense irre- weight to be to the mental attitude attached speсtive outcome, place of the a devastat- of the accused. ing weapon in disgruntled hands of In view of foregoing we do think not disappointed or creditor. necessary it points to review the other policy, The business diffi as the by appellant. raised dangers contrary culties and inherent Reversed. rule are illustrated earlier In cases. Rex v. Goodhall, 1821, & Russ. 461, the R.C.C. accused was found to have EDGERTON, (dissent- Associate Justice quantity meat, obtained a of promising to ing). pay for intending. it not so revers In great weight that “the court holds The jury’s guilt}1- verdict of the court * * * compels This authority us”. merely promise said: “It was for future important I a new rule and one. conduct, prudence and common and caution think it is erroneous. prevented any injury would have arising Usually there reasons for a Again, Reg. from the breach of it.” accepted, widely which and uni- doctrine Oates, 1855, Dears C.C. 6 Cox C.C. formity itself some value in crim- even 540, where with Accordingly we inal should considеr law. making overcharge a fraudulent for work weight elsewhere for what performed discharged pris the court But we not it worth. deter- saying: shopkeeper oner “Is who know foreign mine our a count action ingly charges for an article more than it consistency, regardless logic, and social worth, to an liable * indictment under this need. social value a rule has be- “The ** to hold appli statute? the statute growing power impor- come a test cable to such a case many shake question tance”.1 We decide the be- which, though certainly transactions present-day with fore “in accordance us fair in themselvеs are still indictable.” justice standards of wisdom and than rather Woodman, 1879, Reg. 14 Cox C.C. with outworn in accordance and anti- precisely quated past” advanced rule of the which was never urged here, argument that is adopted judges same contend- To here. let who lived and 1 Cardozo, ceedings Association, Nature of Judicial Bar American p. Process, 445, 449; quoted pp. by Cardozo, “Perhaps significant op. the most advance cit. the modern science of analytical change States, from the func- Funk 290 U.S. Pound, 212, 215, attitude”. L.Ed. tional Administra- 54 S.Ct. Legal Application Standards, Pro- tive places meaning died in make our It other times and fiction. obvious judges decisions is- be to words abdicate is the author whether their same prosecuted and serve tellers. civilly criminally or all. with- fiction that a court, American every This like other embody out perform court, when its decisions overrules own misrepresentation facts, with the conflicts need courts arises.3 of other Decisions cases, deceit interest Only last binding more on us. of society protecting itself fraud. sup- month rejected we a rule which was Congress An Act of crime in makes ported by overwhelming weight of au- the District of- Columbia obtain thority adopted contrary “by any pretense, with intent to de- thought we logical and useful.4 more *4 exempt, Congress fraud”.8 Appeals As the New York has Court of exempt, pretense the court a said, disregard “we over- well as conveyed by convey which also a words whelming weight of elsewhere promise. plain English a of As matter own, and start with rule of consistent our there could be no of clearеr case practical experience”.5 court’s This pretense fraudulent than a borrower’s against new new rules to tense that he intends to which mean part that this must take no court actually repay. to intend development of the law. promise old illusion that a no The states regard foreign Considered withоut to the only facts not the is source of toler- relies, the old on which indict- ance regarding of intention. falsehoods plainly promise ment is No doubt a valid. parted That a are fool and his soon commonly undertaking, an al- is is accepted was once of law. as a sort natural ways present an intention to assertion of In 1821 prudence the fact that “common perform. among “I will” other prevented any- caution would have in- things “I intend to”. It so understood is jury” seemed an to court a and it meant be so In- is to understood. refusing penalize injury reason for to an present tention is a fact and intention is a intentionally which hаd by a been inflicted present promise A fact. made without an promise. agil- fact that common perform therefore a false intention to is ity dodging an intentional blow would present statement about a fac- This fact. prevented any injury have have would not aspect promise tual of a declarative refusing penalize a reason seemed to discovery. It come to be is a new has battery. game though were fair Fools widely recognized in civil for de- actions cripples times, were not. But in modern ceit.6 talking likely no one not law would be to most courts and text criminal cases deny society protect mental as clung to an illusion that writers have old helplessness physical against inten- embody cannot the same both a words injuries. tional promise a statement of fact. But this Though in criminal state- the court tradition that case “the decides the case on authority, opinion of basis ment an intention is a statemеnt of concludes- existing begun prevailing with a defense fact” has break down.7 But an rule. 7 Capital 3 George’s Radio, Inc., Morrison, g., Commonwealth E. v. v. 252 187, 116, Co., U.S.App.D.C. 588; 126 Mass. 147 N.E. Transit 75 Commonwealth 219; McKnight, 530, Hartman, v. 289 v. U.S. Mass. 195 N.E. F.2d Ross 78 499, 506, petition 217,
App.D.C.
14,
F.2d
A.L.R.
dis
139
158
certiorari
245,
1370,
790,
660,
64
missed
denied 321 U.S.
296 U.S.
56 S.Ct.
L.
80
certiorari
470;
McMahon,
107,
790,
Ed.
R.I.
State
49