People v. Dalton , 2 Wheel. Cr. Cas. 161 ( 1823 )

Per Curiam.

The law which governs this case, and all others under the statute, which makes it an indictable offence to obtain property by false pretences, with intent to cheat, is laid -ably down by Mr. Colden, Mayor, in the ease of the People v. James Conger, decided May Sessions, 18-19, (4 C. H. R., 65.)

That case, and others to which it refers, decide,

1. That the statute has a very extensive application, and embraces a variety of false pretences not punishable at common law. (People v. Johnson, 12 Johns. Rep. 292. Rex v. Young and others, 2 Leach, 574. 2 East’s Pl. Cr. 829.)

2. The false pretence must he by words, by writings, or by signs, and cannot consist in mere show or appearance—by equipage, dress, &c. (Conger’s case, 4 C. H. R., 69, 70.)

3. The pretence must be made before the property is delivered. (John Stuyvesant’s case, 4 C. H. R., 156.)

4. The pretence must be of an existing fact. (Conger’s case, 4 C. H. R., 68.) and not a mere promise or representation that such or such a thing shall be done— as to pay cash—that a check shall be good or paid, &c. (Ibid. 68, 69, Stuyvesant’s case, 4. C. H. R., 156.)

5. But, where J. S. pretended that he was the captain of a vessel from a foreign port, just arrived, and by that means obtained goods, his oifence was held indictable under the statute. (Samuel Smith alias Captain Juben’s case, 5 C. H. R., 180.)

7. We are of opinion, that the authorities, on the whole, warrant the decision in the case last cited. It is also supported by the precedents to be found in English works of acknowledged correctness -and high reputation. (Cr. C. Comp. 303.) This is a precedent where the defendant pretended that he was a merchant of great fortune, and was a housekeeper, residing at Penjo Conmon. The tast count charged the pretence that he was a merchant only. (6 Went. S. P. Index, tit. “ Frauds,” Eng. ed. 2 Starkie, 473. 3 Chitty’s C. L. 1006., Eng. ed.)

Applying the principles above stated to Dalton’s case, the court .is satisfied that the pretence charged in the indictment, i.* e. “ that he was a grocer residing in Chat-ham-street,” is sufficient to bring him within the statute.

7. The pretence must not be so absurd and irrational that no nian of common sense would believe it to be true. But still it need not be so cunning and artful as to deceive a man of ordinary caution. (Abraham Collin’s case. 4 C. H. R., 149. Conger’s case. ib. 71.

8. We are of opinion that, whether the false pretence be of a nature calculated to deceive a party or not, is a question for the jury. (Abraham Collin’s case, 4 C. H. R 143. 149. Congers case, 4 ib. 72. 2 East’s Pl. Cr. 828.)

We are of opinion, therefore, that the second ground taken by the counsel for the prisoner is not tenable, and, accordingly, the motion in arrest of judgment is overruled.

9. The false pretence must be the sole inducement for parting with the goods. (John Davis’ case, 4 C. H. R., 61. 2 East, 831.)

10. Though such false pretence must be the sole inducement, and must be fully set forth in the indictment, yet accidental circumstances, which in conjunction with the false pretence influenced the delivery, need not be set out. (Robert W. Steel’s case, 5 C. H. R., 5—7.) As the dress of the defendant, having seen him before, and the like.

We are satisfied, from an attentive examination of the authorities, that dress, style in appearance or living, keeping genteel company, resorting to fashionable places, and, perhaps, even former dealings with the party injured, though these circumstances may facilitate the fraud, need not be set out if they be not necessarily connected with the false pretence, and if they do not form part of the fraudulent scheme or res gesta. In such case they do not, in judgment of law, constitute any part of the inducement, and, consequently, need not be laid in the indictment.

In this case, however, the witness is understood to have said in substance, that he would not have trusted Dalton on the false pretence alone; and as the motive which, in addition to the false pretence, operated on the mind of the witness when he gave credit to Dalton, may have constituted part of the res gesta; and as this was one of the points reserved for the opinion of the court on its materiality, we, on this ground, direct a NF.W TRIAL.