State v. Mills

| Me. | Jun 15, 1840

The opinion of the Court, was drawn up by

Weston C. J.

The false pretences charged are, that the horse of the defendant was sound when it was unsound; and that he pretended it was the horse called the Charity, when in fact it was not that horse. Whatever conflict of testimony may exist, as to the first part of the charge, and assuming that it was not supported by the evidence, the second part of the charge is well sustained, and is not controverted by the defendant. The falsity practised by Mills, is alleged to have been done scienter; and it is stated that the case was proved. The Judge instructed upon the point of the defence, namely, that the other party was not deceived.

The jury must be understood to have found, that the defendant obtained from the injured party his colt and five dollars, upon the false pretence, that the defendant’s horse was known by the name of the Charley. And the question is, whether it presents a case, under the statute of 1821, c. 13, for the suppression and punishment of cheats, which corresponds with the English statute of 30 George 2, c. 24.

The authorities cited for the defendant, appear to- maintain the position, that the facts were not indictable at common law, or under any of the English statutes, prior to the one last cited. English cases under that statute are in point, and deserve respectful consideration. Decisions arising in civil suits, to several of which we have been referred, are calculated to afford very little aid in the determination of the question.

In Rex v. Young et als. 3 T. R. 99, it was said by Lord Kenyon, that the statute of George was intended to be general, but that it was not easy to draw the line, and to determine to what cases the statute shall extend. But it was held to include a false pretence, that a certain bet had been made, by which tire prosecutor had been defrauded of his money. Ashurst J. said, that the statute was intended to protect the weaker part of mankind. A false pretence by a common carrier, that he had delivered certain goods, and had taken a receipt therefor, which he had lost, whereby he obtained pay for their carriage, was held to be within the statute. Rex v. Aivey, 2 East, 30.

Among the precedents given by Chitty, of indictments under this statute, 3 Chitty on Criminal Law, 1006, are false pretences, that W. R. was a merchant of good fortune, that a child was a pauper of the parish, and that a person, on whom the prisoner drew, was indebted to him, and a gentleman of fortune. A false pretence by Count Villeneuve. that he was employed by the Duke de Lauzun to take some horses from London to Ireland, and that being detained by contrary winds he had spent his money, stated by Duller J. in Rex v. Young, was held to be within the statute. So was a false pretence by the prisoner, that he was sent by a neighbor to borrow money. Rex v. Colman, 2 East, P. C. 673.

In Rex v. Dale, 7 Car. Payne, 352, it was held sufficient to sustain an indictment, for obtaining a filly on false pretences, to prove that any one of the pretences was false, and that the injured party was induced thereby to part with his property. It was held to be a false pretence under the statute of George 2, where the prisoner obtained money from the keeper of a post-office, by assuming to be the person mentioned in a money order, which he presented for payment, though he did not make any false declaration in order to obtain the money. And it was further held, that it was not necessary to prove the whole of the pretence charged, that proof of part of the pretence, and that the money was obtained by such part, is sufficient. Rex v. Story, 1 Russell & Ryan, 80.

But a pretence, that the party would do an act, he did not mean to do, (as a pretence to pay for goods on delivery,) is not a false pretence within that act, the court saying it was a mere promise for future conduct, and common prudence and caution would bave prevented any im'oyy arising from the breach of it. Rex v. Goodhall, 1 Russell & Ryan, 461. In that case the goods were sent by a servant, -pms they were to be paid for on delivery, the falsity of the preteL. Jf became known to the servant, before the goods were finally parted with.

A false pretence to a parish officer, as an excuse for not working, that the party has not clothes, though he really has, which induces the officer to furnish him clothes, is not within the act, the court holding it was a false pretence to avoid work, not to obtain clothes. Rex v. Wakeling, 1 Russell & Ryan, 504. But if the false pretence had been to obtain the clothes, it would doubtless have been regarded as within the statute.

In Rex v. Douglas, 2 Russell & Ryan, 462, the prisoner obtained a sovereign of the prosecutor, whose mare and gelding had gone astray, under pretence, that he would tell him where they were, but did not. The court held the indictment should have stated, that the prisoner pretended to know where they were. And if it had contained such an averment, it would have sufficiently appeared from his conduct, that he pretendedlo know that fact.

In the Commonwealth v. Wilgus, 4 Pick. 177, assuming a false name, and making false representations in regard to lottery tickets, was held to be within the statute. The court say, that a mere naked lie may not be sufficient, but admit that it is difficult to draw the line.

The horse, called the Charley, might have had the reputation of possessing qualities, which rendered it desirable for the party injured to become the owner of him. The defendant produced a horse, which- he affirmed was the Charley. It was a false pretence, fraudulently made, for the purpose of procuring a colt and money from another. The attempt succeeded. These facts the jury have found. It is a case litterally within the statute; and we do not perceive why it is not within the mischief, it was intended to punish. To sustain it would not be going farther than precedents warrant. If the construction sho'uld be narrowed to cases, which might be guarded against by common prudence, the weak and imbecile, the usual victims of these pretences, would be left unprotected. It may not be easy to lay down any general rule, with proper qualifications and limitations; but Áv the case' before us, we are of opinion, that the offence charged has been committed.

Excepttyy, overruled.