4 Barb. 151 | N.Y. Sup. Ct. | 1848
The formal objection to the indictment, that it does not state any particular value of the watch, is not sustained by any authority that I have been able to find. The statute under which the indictment was found does not require that the property obtained should be of any particular value— the words are, “ any money, personal property, or valuable thing.” There is no reason why the particular value should be alleged. There are cases where it is necessary to allege the value of the property in an indictment, where the offence, or its grade, may depend upon- the value—as in an indictment for larceny—that it may appear whether the crime charged is grand or petit larceny. In the present case I think it is sufficiently alleged that the watch was a “ valuable thing.” The more important and difficult question relates to the substance of the offence charged ; and whether the facts alleged in the indict
In addition to the special causes of demurrer, the defendant’s counsel makes the following points. (1.) “That there is nothing in the false pretences showing the defendant authorized to settle the rape or the warrant therefor. Those pretences do not even indicate that the defendant was agent for the injured female. (2.) That the pretences show that the defendant had no such authority, but that his duty was to arrest Barlow, not to settle with him. (3.) The law makes such settling void, even when made with the injured person ; much more so when made with the officer executing process therefor. (4.) The watch was delivered for a void consideration, and one equally void, whether the pretences were true or false. (5.) That consideration is settling the warrant for the rape, and is not lost to Barlow in consequence of the pretences being false. As to Barlow’s right under the settlement, or any benefits to him growing out of or connected with it, it is immaterial whether those pretences are true or false.” The remaining points for the defendant, made upon the' argument, are substantially embraced in the special causes of demurrer. A fraud, to be indictable at common law, must be such as affects the public, or is calculated to defraud numbers, and which ordinary care and caution cannot guard against; as the use of false weights and measures, defrauding another under false tokens, or by conspiring to cheat. Where the fraud at common law is charged to have been effected by means of a false token, the token must be such as indicates a general intent to defraud ; a mere private token, or counterfeit letters in other mens’ names does not come within the meaning of the term false token, as used at common law. (People v. Babcock, 7 John. 201. People v. Stone, 9 Wend. 182.) To obtain money by false pretences, or by private false tokens, was not punishable by the common law as a crime, however fraudulent the intent might have been. Hence the statute of 33 Henry 8, ch. 1, § 2, which is as follows : “ If any person falsely and deceitfully get into his hands any money or other things of any other persons, by color of
Under the foregoing statutes there have been a great number of adjudged cases, both in the courts of England and this country, among which I have met with several which were clearly within their letter, and yet have been held to be not .within their spirit, or the mischief which they were intended to prevent. In the case of The People v. Clough, (17 Wend. 351,) the defendant was indicted for obtaining money by false pretences. The indictment charged that by means of certain false feigning, deceitful motives, signs and gestures, the defen
In The People v. Williams, (4 Hill, 9,) it was held that a. representation, though false and made with intent to cheat and defraud the complainant, and by means of such representation, the defendant obtained the signature of the complainant to a deed of his farm, was not within the statute, unless they were calculated to mislead persons of ordinary prudence and caution. In the case of The People v. Clough, Justice Cowen raises the question, whether the statute was intended to protect the citizen from frauds beyond his commercial dealings, <fcc. He does not decide, in so many words, that its operation is to be thus limited, but in the conclusion of the opinion he says— 11 On the whole, we all feel quite clear that this indictment is not sustainable. We all agree that the pretence, had it been exercised in a case of trade or credit, would have fallen within the statute.” He lays stress upon the recital of the statute of Geo. 2d, as showing the class of persons who were to be projected—“ industrious families,” as the evil which it was designed to prevent, “ prejudice of trade and credit”—and argues from the language employed in the commencement of the enacting clause—“ Therefore for the punishment of all such offenders, be it enacted,” &c. that the offence, to be within the purview of the statute, must have been committed against a class of persons which could be indicated by or embraced within the expression “ industrious persons,” and must be an offence
In all the numerous reported cases under the English and American statutes to prevent the obtaining money, &c. by false tokens or pretences, I have not found one which was held to be within the statute, in which the transaction on the part of the person injured, would not have been lawful provided the representations or pretences were true, nor where such representations or tokens, if true, were not in violation of law. I cannot believe the statute was designed to protect any but innocent persons, nor those who appear to have been in any degree particeps criminis with the defendant. To determine what attitude he occupies in that respect, it should be assumed that all the representations made to him, whether in words or tokens, were true, because it is an essential ingredient of the case that he believed them to be true; otherwise he could not claim that he was influenced by them. Looking at his conduct in that light, and with that assumption, if in parting with his money or property, or yielding his signature, he was himself guilty of a crime, it cannot be that he is within the protection of the statute. Testing the case under consideration by these rules,
Again; on the supposition that Barlow was innocent of the supposed charge of rape, the pretences of the defendant, and the exhibition of the supposed warrant, were not calculated to induce him to part with his property in consideration of the defendant’s undertaking to do what he clearly had no right to do, and which, if he assumed to do it, the transaction was utterly void, and Barlow liable to be arrested again on the same warrant the next moment. Nor can his conduct, in my opinion, be reconciled with the exercise of common prudence or caution, on the ground that it was competent for him to buy his peace. He is not to be so absolutely stultified, as to be supposed to have parted with his watch for no valid consideration—for that which could secure him no benefit whatever—even upon the supposition that the representations of the defendant were in all respects true.
In my opinion the defendant is entitled to judgment on the demurrer.
Maynard, P. J. (After stating the facts:) It is a well settled and rational rule that the false pretences, in order to sustain an indictment, must be such that, if true, they would naturally and according to the usual operation of motives upon the minds of persons of ordinary prudence, produce the alleged results; or in other words, that the act done by the person defrauded must be such as the apparent exigency of the case would directly induce an honest and ordinarily prudent person to do, if the pretences were true. Applying this rule to the case in hand, it will, I think, appear that the false pretence, even if believed to be true, could not by any course of reasoning, have induced any person to do what the prosecutor did. No man
Selden, J. concurred.
Judgment for defendant.