State v. Dowe

Beck, J.

i. cbiminai. law : false pretense: promise, The indictment charges the crime in the following words: “ The said C. E. Dowe heretofore, etc., at, etc., designedly and by false pretense, and J . , , _ ’ with intent to detraud one .Nicholas Hunsen, did, etc., designedly and falsely pretend to said Hunfsen that he, the said Dowe, had come to p_ay the said I Hunsen.tKQnty^dollars, a debt due the sai3 Hunsen from the said Dowe, and the said Hunsen believing the said false pretenses and representations so made, as aforesaid, etc., and being deceived thereby, was induced, by reason of the false pretenses and representations so made, to J sign a receipt for the payment of the said sum of twenty j dollars, which said receipt was of the tenor following : ‘ (giving copy of receipt), which said receipt the said Dowe took into his possession and carried away, without the consent of said Hunsen, and did not pay said Hunsen the twenty dollars, or any other sum.” The indictment j further alleged that defendant “ had not come to pay said Hunsen twenty dollars or any other sum.”

The statute under which the indictment is presented is as follows : “ If any person designedly and by false pretense, or by any privy or false token, and with intent to defraud, obtain from another any money, goods or other property, or so obtain the signature of any person to any written instrument, the false making of which would be punished as forgery, he shall be punished,” etc. Rev. § i394.

The false making of the receipt would be an indictable offense, and is classed as forgery by the statute. Rev. ch. 168. The demurrer to the indictment, however, raises no such question. The objection presented by the *275 demurrer is, that the pretense set forth in the indictment was not of a nature to deceive or defraud, under the statute, and was a false promise and not a misrepresentation. This seems to have been the view taken by the court below. It is true that a false promise will not sustain the charge of crime for which punishment is provided in the statute above quoted. It must be a pretense, a representation in fact, that is false, and this must be relied upon by the party who, it is charged, was defrauded; upon this point no objection is made to the indictment. But the fact that a promise is combined with the false pretense does not take away the criminal character of the act."" If the pretense and promise blend together and jointly act upon the defrauded person, whereby he is induced to give faith to the pretense, the case is within the statute. 2 Bishop’s Crim. Law, §§ 348, 352. In the case before us, the pretense was the act of coming, and the averment that defendant had come, to pay the money. These, doubtless, implied ajpromise to pay, otherwise they could not have operated upon the mind of the party defrauded to induce him to make and sign the receipt. The act of the defendant in coming to the other party, proclaiming his intention and purpose to pay the money, is readily distinguishable from a promise so to do. A pretense may be gathered from the acts and conduct of a party. 2 Bishop’s Crim. Law, § 355; see The Commonwealth v. Drew, 19 Pick. 179 . And it was the acts and conduct of the party as charged in the indictment that constituted the pretense. Their fraudulent and false character, and that the defrauded party was deceived thereby, and other ingredients of the crime, are sufficiently averred. In our opinion the demurrer should have been overruled.

Reversed.