„ The opinion of the court was delivered by
The defendants were convicted, in September last, upon an indictment, which substantially contained the following statements and averments. That the prosecutor, one Thomas C. Warman, lived in Washington township, in the county of Warren; that the defendants, who lived in the same township, devising and intending to cheat and defraud the said Warman of his goods, chattels, money, and property, on the 28th of May, 1858, unlawfully, knowingly, designedly, and falsely pretended to him that the said Duckworth was a farmer upon the farm of one Smith, at Asbury, in said county; that he, said Duckworth, had then planted fifty acres of land with corn, and that he had all kinds of farming utensils and stock to carry on the farming business; that the said Vanderbilt was named Peter; that he owned ten acres of land near to the village of Asbury, and was the owner of a tavern stand at the village, and was a man of property, substance, and means. The indictment then, by proper averments, absolutely negatives all the facts set forth in the pretences seriatim; and it further avers that the defendants then well knew that all the said pretences were false. It then concludes with the statement that, by color and means of the said false pretences, the defendants did then and there knowingly, unlawfully, and de
After trial and verdict, the Court of Oyer and Terminer suspended judgment, that the advisory opinion of this court might be taken upon three points reserved by that court.
We are now to decide, in the first place, whether, if all the material facts set forth in the indictment were proved, the defendants can be subjected to punishment under the 53d section of the statute of New Jersey, entitled, “An act for the punishment of crimes.”
The whole argument turned upon what is a proper construction of the term “false pretence or pretences,” which is employed in the section. On the one side, it was contended that the pretence must refer to some false token of a visible thing, either public or private, and that mere representations, however false, do not bring the 'party making them within the statute.
It has been argued, on behalf of the prosecution, that the words “ false pretence” mean more than a false token, and include within the penalty of the act some oral representations, where no sign, letter, or token is used. At common law, frauds of this nature are not objects of criminal prosecution, unless they are of a kind calculated to defraud numbers or the public, such as the use of false weights and measures or false tokens which common prudence and care cannot guard against.
To supply the defect of the common law, and to provide punishment for a variety of frauds which were practised, the statute of 33 H. 8 was passed, which enacted that if any one should fraudulently get into his possession the goods, chattels, or other things of another, by color of any false privity, token or- counterfeit letter, he should suffer the punishment therein prescribed.
The construction given to this statute by the courts left unpunishable frauds perpetrated without the use of some
The statute of Pennsylvania, passed in 1842, is as follows : “Every person who, with intent to cheat and defraud another, shall designedly, by color of any false token or writing, or by any false pretence whatsoever, obtain from any person any money, personal property, or other valuable thing, upon conviction thereof, shall be punished,” &c. The act of the legislature of New York is essentially the same, it using the words false pretence.
in settling what should be the proper construction of our statute, we are not, left without light, to be derived from the courts in Great Britain and from those of some of our sister states. We are now to fix, not the lexical, but the technical meaning of the expression false pretence, when used as legal language, and we may properly look for aid to the reported cases, in which its import has been considered when used in like connection.
It was said by a learned judge of New York, iu an
It was further said in the same case, that the false pretence must be practiced by words written or spoken by the person charged, or by another, and assented to by him; and that no specious false show or appearance will support a prosecution under the statute.
In speaking of the act of Geo. 2, Ashurst, J., said, “the legislature saw that all men were not equally prudent, and passed this statute- to protect the weaker part of mankind. The words of the statute are very general, and we have no power to restrain their operation.”
Grose, J., says, in the same case, “the statute created a new offence, in declaring that all persons obtaining money by false pretences, with intent to cheat, shall be offenders against the law and the public peace.”
Justice Buller says, “the ingredients of this offence are the obtaining money by false pretences, and with an intent to defraud. If the intent be made out, and the false pretences used in order to effect it, (he case is brought within the statute.” This doctrine was adopted in New York, by Chief Justice Thompson, in the case of The People v. Johnson.
But it does not follow, from the foregoing citations, that any improbable lie or absurd or irrational assertion, will be sufficient to support an indictment under the statute. The exemption would. not apply to such representations, because (hey are not false pretences, but because no jury would believe that a person of ordinary understanding could be defrauded out of his property by such, palpable falsehoods or improbable means. “The pretences must be such to which persons of ordinary caution might give credit.”
When the act of 1842 first came up for construction before the courts of Pennsylvania, it was decided “ that the fiilse pretences in the contemplation of the statute are such as assert the existence of some fact calculated to impose upon a man of common and ordinary caution, which false' pretences create the credit given to the accused.”
This principle was recognized in the case of the Commonwealth v. Hickey, and in the Commonwealth v. MoCrossen. While the meaning of the term “false pretence” was fully declared, it was ruled that any false promise or statement, made with a view of fraudulently obtaining the property of another, will not amount to a false pretence within the meaning of the statute; but, to constitute an indictable offence, the fraud must be perpetrated by such an artful device as will impose upon a man of ordinary caution. In late years, the English courts have extended the operation of the statute, aud the courts in Pennsylvania incline to adopt that more comprehensive exposition of the law, so as to meet the exigencies of society and the better to protect the community against fraud and deception effectuated through false pretences.
In the case of Regina v. Hamilton, the defendant was tried and convicted for falsely pretending, to one Wood, that he was a captain of her majesty’s fifth regiment of dragoon-guards, and thereby obtaining an order for the payment of £500, with intent to cheat aud defraud the said Wood out of said sum. Lord Denman, after hearing a full argument upon an error assigned, that the pretence set forth in the indictment was not a pretence sufiicient in law to support the charge, concurred in the affirmance
It would be difficult, if not impracticable, to lay down any general rule which could govern every case which is within the statute. Many questions of fact must be settled by á jury, such as the character of the pretence used, the credit given to it, the occasion, and the evil purpose sought to be accomplished by the false device, which matters necessárily. involve the motives actuating the minds of both parties. The conclusion reached by Judge Parsons, of Pennsylvania, in the case of the Commonwealth v. Poulson, with one qualification, expresses the result of my examination of this statute, aud of the decisions in England and in other states of the Union having similar acts. He says, “ I think that the principle to be deduced from all the late decisions of the courts in England is this : any pretence sufficient to impose upon the individual to whom it is made, and thereby induce him to part with his property, is an offence within the statute, if the pretence was used with an intent to cheat and defraud, and created the credit given to the party;” and he adds, that it seems to him that the law laid down in England will be the safe and proper rule to be adopted here. This rule, however, should be limited, I think, to such cases as are not absurd and incredible in themselves. My opinion is, that the term pretence does not involve the use of a visible token, and that the pretences set forth in this indictment are within our statute.
The second point reserved arises out of the charge of
The judge instructed the jury “that the pretences need not be proved in the precise words laid'in the indictment; that entire verbal accuracy was not required, but that the idea conveyed by the defendants and that set forth in the indictment must be identical.”
This instruction was in accordance with the rules which govern the application of evidence, it not being necessary that all the pretences should be proved as laid, and the jury having found a general verdict of guilty, it is to be assumed that they were satisfied that of the pretences set put and negatived in the indictment, sufficient were proved false to subject the defendants to the penalties of a conviction. The Oyer and Terminer should be advised to proceed, and to render the judgment which the statute authorizes.
Cited in State v. Tomlin, 5 Dutch 20.