56 P. 275 | Or. | 1899
delivered the opinion.
The indictment in this case charges, in substance, that the defendant, George Renick, did on the tenth day of November, 1896, in Multnomah County, Oregon, willfully and feloniously, with intent to defraud, by means of a certain false token, towit, himself, the said George Renick, falsely and fraudulently present himself, the said George Renick, and represent and pretend to one Carrie Meyer, an unmarried woman, that he, the said George Renick, was one Charles Smith, that he was unmarried, and competent and in a position to lawfully contract marriage with her, whereas, in truth and in fact, the said George Renick was not Charles Smith, and was not then unmarried, but had a lawful wife then living; by means of which false token, fraudulent pretense and false representations, coupled with a promise to marry her, the said Carrie Meyer, he, the said George Renick, did then and there obtain of Carrie Meyer divers gold coins, of the value of $190. A demurrer to this indictment was sustained, and the state appeals. It is claimed that the money was obtained by false pretenses, through and by the use of a false token, and that the rise by defendant of himself as such false token was sufficient in law to constitute the offense. This presents the only question to be determined.
There was a species of cheat or fraud at common law which was effectuated through the use of deceitful or illegal symbols or tokens, such as were calculated to affect the public at large, and against which common prudence could not have guarded. It was not sufficient upon which to found the offense if a mere privy token was employed, — a counterfeit letter in another person’s name, or a private check upon a bank in which the drawer had no funds (Lara’s Case, 2 Leach, 647, 652)
There is an old case of Reg. v. Macarty, 6 Mod. 301, wherein it was charged that Macarty, one of the defendants, falsely represented himself to be a broker, and Fordenborough, the other of such defendants, falsely. pretended to be a merchant, of London, and as such traded in Portugal wines, and that, through such pretensions and representations, they induced one Chown to barter a quantity of hats for a quantity of a spurious and unwholesome wine, represented to be a good and wholesome Portugal wine. In deciding the case upon exceptions to the indictment, Holt, C. J., says: “The crime is not the selling one thing for another, but here is a false token, the one pretending to be a broker and the other a merchant, and a combination to cheat.” Rex v. Govers, Sayer, 206, is another old case wherein the defendant was indicted for falsely assuming to be a merchant, and producing divers counterfeit commissions purporting to be from Spain, and thereby induced another person to extend him credit. Upon a rule to show cause
But, whatever may be the rule and definition touching the common-law cheat, the statutes of England early began to distinguish between the different species of cheat, and to carve out a distinct offense for obtaining money or property by falsely personating another. Such an offense has been widely adopted in the American states, and our own statute has made the act punishable : Hill’s Ann. Laws, § 1776. The statute has also made it an offense for any person to obtain, or attempt to obtain, with intent to defraud, any money or property whatever, by any false pretense, or by any privy or false token : Hill’s Ann. Laws, § 1777. The evidentiary matter necessary to support a charge under the latter section must consist of a false token or writing accompanying the pretense : Hill’s Ann. Laws, § 1372. Construing the two sections together, the crime known to our statute is much the same as that constituted by 33 Hen. VIII, which extended the common-law cheat so as to include one accomplished through the use of a false privy token
But it is contended that he is guilty of a false pretense by the use of himself as a token. If that were so, he must be regarded as a privy token, as his personation was not calculated, nor was it his purpose, to deceive or impose upon the public in general; the fraud being an imposition upon an individual only, and not extending to the injury of the public, in the sense of a public cheat. In the Jones Case, 1 Leach, 174, the personation was of a class capable of enlistment in the public service, and the act operated as a fraud in the procurement of public moneys. So, in Rex v. Hanson, Sayer, 229, the woman obtained general credit by pretending to be unmarried, thus affecting the public. Mr. Wharton puts a case : “ If a pretender (e. g. Perkin Warbeck or the Tichborne claimant) palm himself off on a community as another person, and, under the guise of his assumed character, obtain credit from the public at large, he is indictable as a cheat, assuming that he imposes upon persons who have no notice that his claims are disputed, and also addresses his imposture to the public at large. The offense is aimed at the public generally, and is, supposing there is no notice to put the others on their guard, aimed as much at the
But is the defendant himself even so much as a privy token? Within St. 33 Hen. VIII, such a token was taken to denote “a false mark or sign, forged object, counterfeit letter, key ring, etc., used to deceive persons, and thereby fraudulently get possession of property.” Black, Law Diet. See, also, note to Commonwealth v. Speer, 2 Va. Cas. 67. Mere words are neither symbols nor tokens. Hence it has been held that one who obtains a credit by falsely representing himself to be in trade, and keeping a grocery, utters a mere falsehood. Commonwealth v. Warren, 6 Mass. 72. So, if one falsely pretends to another that he has been sent by a third person for money, and obtains it (Reg. v. Grantham, 11 Mod. 222); or, in selling a horse he knows to be blind, willfully represents him to be sound (State v. Delyon, 1 Bay, 353 ) ; or if he knowingly disposes of wrought gold under
Now, were the representations which the defendant made to the prosecutrix more than wicked falsehoods, under our statute, or may it be affirmed that his presence when uttering the falsehoods was the exhibition of a Mse privy token, which induced her to part with her money and assisted him in consummating the fraud ? It was a matter susceptible of proof and demonstration, upon inquiry, for she was not bound to take his word touching his assertions that he was an unmarried man or that his name was Smith. His physical presence had no tendency to establish the one fact or the other, and was, therefore, not an agent, in the sense of a token or a symbol, in consummating the deception and accomplishing the fraud. He may have been both a liar and the symbol of a liar, but he himself, considered as a token, did not contribute, by reason of his personal appearance, to the deception. By the statutes of England and many states of the Union the element of a false token or symbol is eliminated, and the laiv is broadly cast that whoever, by any false pretense, obtains money, etc., with intent to defraud, shall be guilty of the offense. The case of Reg. v. Jennison, 9 Cox, Cr. Cas. 158, is cited, wherein it appears that defendant was indicted for having obtained money from an unmarried
Affirmed .