81 Tenn. 294 | Tenn. | 1884
delivered the opinion of the court.
The prisoner has appealed in error from a judgment of conviction for the crime of obtaining goods under false pretenses. The indictment charges the prisoner with feloniously obtaining, with intent to defraud the owners, certain specified articles of jewelry, the property of a firm named, of the aggregate value of $1,178, by false pretenses made to the agent of the firm, which pretenses were: “That he had in his store, where he and the agent then were, pledges and pawns upon which he had loaned the sum of $5,000, then and there pointing out to said agent what appeared to
Motions were made in .the court below to quash the indictment, and in arrest of judgment, and it is now insisted that these motions should have been sustained. The argument is that all of the alleged fraudulent pretenses are matters of opinion except those relating to the pawns and pledges and the solid gold .goods, and that these latter, as well as the others, are •confined to the ‘ subject of the ability of the defendant to pay for his purchases, and amount only to falsehoods on that subject, and are not sufficient under the ■statute.
The statute is: “Every person, who, by any false pretense, or by any false token, or counterfeit letter, with intent to defraud another, obtains from any person .any personal property, ^ * shall on conviction be
The statute was not intended to apply to every case of falsehood or dishonesty by which one party-gets an advantage over another, for such a construction would be entirely too sweeping, and include many cases |clearly not within the evil intended to be provided against. It was accordingly held, in one of” the earliest cases in our books, after a conviction, that the obtaining of a quart of whisky by falsely pretending to be sent for it by another would not be sufficient if there fwas the least doubt whether the prosecutor was| deceived by the pretense: Chapman v. The State, 2 Head, 36. But, in the very next case, it was held to be within the statute, to obtain goods upon the pi‘etense.;[of a verbal order from another, with intent to-defraud, and under such circumstances as to impose upon a man of ordinary prudence and caution: McCorkle v. The State, 1 Cold., 333. And it was afterwards-held not to be proper prudence and caution to accept, without! resorting to other sources of information, the representation of the defendant, upon which he obtained, the goods, that he §had received by express a package of goods of a named value, somewhat less than the-
In Moulden v. The State, 5 Lea, 577, it was held that the obtaining of goods by giving an order on his employer for wages afterward to become due to the defendant, and subsequently collecting the wages himself, concealing the fact that he had given the order, would not constitute the offense of obtaining goods under false pretenses. And in Canter v. The State, 7 Lea, 349, a judgment of conviction ,under the statute was arrested, because the indictment did not show that the title of the goods was parted with, and because the pretense alleged for obtaining possession of the goods •consisting of a suit of clothes, namely that he could not try them on at the prosecutor’s store, was one not likely to deceive any person, the merchant being as well qualified to judge of this as the defendant. The indictment contained a further charge that the defend•ant represented that a third person named owed the defendant and would get the goods, when they were returned by the defendant, and pay for them. The ■court said that the pretense must consist in the statement of some existing fact, and not be a mere promise •of something to be done in the future. The representation, it was added, that the person named owed the defendant money was a representation of an existing fact, but which, taken alone, related only to the
From this review of our decisions, it will be seen that they bear mainly on the question of the prudence and caution to be exercised by the person from whom •the goods were obtained, and that they seem to settle that the representation relied upon as a false pretense, must be as to an existing fact, and not amount only •to a promise of something to be done in the future either by the defendant or some third person. There is a suggestion in Oanier’s case that if the representation of an existing fact relate only to the defendant’s •ability to pay, it would be insufficient. But this suggestion must be taken in connection with the facts of ■the particular case, that the representation consisted in the statement that a third person named owed defend■ant a small sum of money, and would pay for the .goods, and that it was not so much a false pretense as a false affirmation. An indebtedness, moreover, from •a person of unknown means is not such a fact as, if it were true, would induce any person of ordinary prudence to part with his money: State v. Magee, 11 Ind., 154.
The false pretense, the authorities agree, must be of some existing or past fact, in distinction alike from a mere promise and a mere opinion, and this fact must be such in its nature as is known to the person employing the pretense: 2 Bish. Crim. Law, secs. 429, 415. If there is a sufficient false pretense of an ex
Tested by these rules, the averment in the indictment that the defendant could buy on credit all the-goods he wanted, and that his business was prosperous and increasing, would be the mere expression of' an opinion. The averment that the defendant would soon enlarge his business would amount only to a promise of future action. Other averments, such as-“that he had trouble formerly but was all right now,”" and “that he had a lease upon the whole store room,” and rented part of it, taken by theihselves would amount to nothing. But the indictment may be divided into two] averments, each o 1 which may be considered as embodying a false pretense, viz:
First. That .he, defendant, had in his store room, where he and the prosecutor then were, pledges and pawns-upon which he .had loaned $5,000, then and there-pointing out to said agent what appeared to be a large-quantity of goods which he represented to be said pledges..
The first of these alleged false pretenses is undoubtedly the statement of an existing fact. The • second is a statement of the defendant’s pecuniary condition at the time, sustained by the representation •of certain existing facts bearing on that condition. When the representation is in words, and there are conversations at different times, they may be connected to show a false pretense, though what was said on any one occasion would not be alone sufficient. And the question is for the jury whether the •different conversations can be so connected as to constitute one transaction: 2 Bish. Crim. L., sec. 431. ■ A fortiori, where the conversations are all at one time, or the various . statements parts of the same •conversation. All of these statements relate, it is true, to the ability of the defendant to pay for the ..goods obtained. And if that fact renders them insufficient to constitute a false pretense within the •statute, then the indictment is bad. But in that view there never can be a statement of' facts touching the pecuniary condition of a person upon the faith of which goods are parted with, which could
There being no error in the proceedings, the judgment must be affirmed.