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§ 495. Representation must be more than an expression of opinion. Where the false representation is a mere expression of opinion as to value, quality, etc., or a mere puffing of one's property, it is not an indictable false pretense. Thus, where the defendant was convicted of obtaining money by false pretenses, and the proof showed that he obtained a loan secured by mortgage on his wife's land by stating to the lender that the lots were near the city limits, on a street leading directly to the business district, "nicely located, and would sell any day for twelve hundred dollars to fifteen hundred dollars cash," the conviction was set aside, because the representation that the lots were "nicely located, and would sell any day for twelve hundred dollars to fifteen hundred dollars cash," was a mere expression of opinion.2

24

On the other hand, where the false representation is something more than a mere expression of opinion, amounting substantially to a statement of fact, the false pretense is indictable.25 Where the defendant was convicted of false pretenses, and the proof showed that he defrauded the prosecuting witness by inducing him to purchase a horse which had long been afflicted with swinney, by falsely stating to him that the horse's lameness was the result of recent shoeing, and was merely temporary, a refusal by the trial court to instruct the jury that, if the purchaser could perceive the lameness the principle of caveat emptor was applicable and the defendant was not guilty, was held proper and the conviction was affirmed.26 Again, where the defendant was convicted of this crime, and the proof showed that he fraud

24 People v. Jacobs, 35 Mich. 36. See also, People v. Morphy, 100 Cal. 84, 34 Pac. 623; People v. Gibbs, 98 Cal. 661, 33 Pac. 630.

25 Williams v. State, 77 Ohio St. 468, 83 N. E. 802, 14 L. R. A. (N. S.) 1197, Derby's Cases 504; State v. Chambers, 179 Iowa 436, 161 N. W. 470.

26 State v. Wilkerson, 103 N. Car. 337, 9 S. E. 415. See also, State v. Burke, 108 N. Car. 750, 12 S. E. 1000; State v. Stanley, 64 Maine 157; Watson v. People, 87 N. Y. 561, 41 Am. Rep. 397n; People v. Crissie, 4 Denio (N. Y.) 525.

ulently induced the prosecuting witness to purchase a discased horse that was almost worthless by stating that the horse in question was a real nice driving-horse, was a good one and very fast, that it belonged to a lady, but that it had always worked for him, all of which statements were false, the conviction was sustained.27

It is sometimes difficult, to discriminate between fact and mere opinion. Thus, where the defendant was convicted of cbtaining money by false and fraudulently representing to a pawnbroker that certain spoons he pawned were plated equal to Elkington's A, and on the best foundation material, the conviction was set aside by a divided court, the majority reasoning that it was not the intention of the legislature to make it an indictable offense for the seller to exaggerate the quality of that which he was selling, any more than it would be an indictable offense for the purchaser, during the bargain, to depreciate the quality of the goods and to say that they were not equal to that which they really were; while the minority held that there was a false pretense, namely, that the goods had as much silver on them as Elkington's A, and as to the foundation, that these were matters of fact, not opinion, as to matters of quantity and quality.28

The dissenting opinion in this case, it is submitted, is, upon principle, correct. Moreover, statements relative to quality and value can be statements of fact, as well as statements relative to quantity and weight; and such statements, knowingly false, and which fraudulently induce another to part with his property, may be sufficient to make the offense criminal.29

27 Jackson v. People, 126 Ill. 139, 18 N. E. 286.

28 Reg. v. Bryan, 7 Cox Cr. C. 312. 26 L. J. M. C. 84, 5 W. R. 598, Dears. & B. 265, 3 Jur. (N. S.) 620. See also Reg. v. Ardley, L. R. 1

C. C. 301, Derby's Cases 502, where conviction was sustained on representation that chain was 15 carat gold.

29 People v. Peckens, 153 N. Y.

§ 496. The representation must be knowingly false and made with fraudulent intent.-The representation must be actually false and made with intent to obtain another's property fraudulently. To obtain goods with the intent to defraud is not enough. It must be accomplished by a pretense which is false. If the party who makes it believes it to be. false, when as a matter of fact it is true, the act is not indictable.30 So, where the defendant was convicted of obtaining goods by falsely and fraudulently representing that a certain crop to be raised was not under mortgage, and the proof showed that a mortgage, which the indictment alleged covered the crop in question, did not specify the land on which it was to be raised, the conviction, on appeal, was reversed, because the trial court erred in admitting parol evidence to supply the omission, and therefore there was no false representation.31

The representation must also be known to be false. To give it a criminal character there must be scienter. Thus, where the defendant was convicted of procuring money from a bank by false pretenses and with intent to defraud, and the proof showed that he obtained the money by presenting two checks which were overdrafts, on appeal the verdict was set aside and a new trial granted on the ground that the proof did not establish the element of scienter. "If the checks in question had been passed to a third person, it could not be said that the defendant knew that they would not be paid. On the contrary, he had an open account with the bank, and although he knew there was nothing due to him, yet he might suppose that they would be paid. And the fact that he presented them himself, shows that he did not know that they would be refused. ***They were mere requests to pay to

576, 47 N. E. 883; Williams V. State, 77 Ohio St. 468, 83 N. E. 802, 14 L. R. A. (N. S.) 1197.

30 State v. Asher, 50 Ark. 427, 8 S. W. 177.

31 State v. Garris, 98 N. Car. 733, 4 S. E. 633; Rand v. Commonwealth, 176 Ky. 343, 195 S. W. 802 (statement made recklessly).

him the amount named in them, couched in the appropriate and only language known there; and addressed to the person · whose peculiar province and duty it was to know whether they ought to be paid or not. He complied with the requests, and charged the sums paid, to the defendant, and thus created a contract between the parties. Upon this contract the bank must rely for redress."32 It is to be observed, however, that the drawing and passing a check on a banker with whom the drawer has no account, and which he knows will not be paid, is a false pretense within the statute.33 This doctrine is approved by all the text writers.

Moreover, the representation must be made with fraudulent intent. The defendant was convicted of obtaining a pair of shoes by means of false pretenses, and the proof showed that he and his family received relief from the parish; that the overseers of the parish ordered him to go to work and help maintain his family; that he replied that he could not because he had no shoes; that the overseer thereupon. supplied him with a pair of shoes; that at the time he had, in fact, two pairs of new shoes which he had previously received from the parish. On the case reserved the conviction was set aside on the ground that the representation made by the defendant was rather a false excuse for not working than a false pretense to obtain goods.34 Again, where the defendant was convicted of obtaining money by false pretenses, and the proof showed that he intended to buy a lot; that he told R that he was the owner of it and sold it to him for two hundred dollars; that he then made a contract with the true owner for the purchase of it, paying part of the pur

32 Commonwealth v. Drew, 19 Pick. (Mass.) 179. See also State v. Hicks, 77 S. Car. 289, 57 S. E. 842, Derby's Cases 510; State v. Pilling, 53 Wash. 464, 102 Pac. 230, 132 Am. St. 1080; State v. Miller, 47 Ore. 562, 85 Pac. 81, 6 L. R. A. (N. S.) 365.

33 Rex v. Jackson, 3 Camp. 370; Williams v. Territory, 13 Ariz. 27, 108 Pac. 243, 27 L. R. A. (N. S.) 1032; State v. Crockett, 127 Tenn. 679, 195 S. W. 583.

34 Rex v. Wakeling, Russ. & Ry.

504.

chase-price; that he went into bankruptcy and never paid the full price of the lot nor acquired title to it, but that after his discharge in bankruptcy from liability on his land contract he revived this liability by making a new promise to pay it; the conviction, on appeal, was reversed on the ground that when he made the false representation to R, gave him the deed to the lot and obtained the two hundred dollars, he did not entertain a fraudulent intent.35 So where a congregation invited one not a minister to preach and paid him for his services he was not guilty of false pretenses in obtaining the money, when, beyond representing himself a minister he took no steps to obtain employment.36

The fact that the other party to the transaction is also guilty of false pretenses is no defense. Where the defendants were convicted of obtaining watches by false pretenses, and the proof showed that in the trade the prosecuting witness also overstated the value of his watches, the conviction, on appeal, was affirmed, the court holding that, "If the other party has also subjected himself to a prosecution for a like offense, he also may be punished. This would be much better than that both should escape punishment because each deserved it equally." Some courts have erroneously held the contrary,38 Again, where the defendant was convicted of procuring by false pretenses another's indorsement upon a promissory note and the proof showed that the party who indorsed the note knew that his indorsement was to be used dishonestly, this fact was held to be no defense.39 The pro

35 Fay v. Grat. (Va.) 912. 36 Bowler v. State, 41 Miss. 576, Derby's Cases 508.

Commonwealth, 28

37 Commonwealth v. Morrill, 8 Cush. (Mass.) 571. See also Reg. v. Hudson, 8 Cox Cr. C. 305; Peo* ple v. Watson, 75 Mich. 582, 42 N. W. 1005; In re Cummins. 16 Colo.

451, 27 Pac. 887, 25 Am. St. 291, 13 L. R. A. 752; Commonwealth v. O'Brien, 172 Mass. 248, 52 N. E. 77. 38 McCord v. People, 46 N. Y. 470; Commonwealth v. Henry, 22 Pa. St. 253.

39 People v. Henseler, 48 Mich. 49, 11 N. W. 804.