curing of the payment of a just debt, already due by false pretenses, is not indictable.40

§ 497. The representation must be calculated to deceive and defraud and actually do so.-Where the representation is plainly irrational or absurd, and the victim is defrauded owing to his own gross carelessness, the crime of false pretenses is not committed. Thus, where the defendant was convicted of false pretenses, and the proof showed that he obtained money by representing to his victim that he was a witch doctor, and could kill and destroy witches; that the person to whom the representations were made was the victim of witches; that unless this person employed him to destroy the witches they would kill him and his family, the conviction, on appeal, was set aside on the ground that the representations were mere expressions of opinion and not calculated to deceive a man of ordinary understanding.11 the other hand, where the defendant was indicted for obtaining money under false pretenses, and the indictment alleged that he obtained two hundred dollars by falsely pretending to sell and deliver two thousand dollars in a box for two hundred dollars well knowing that the box contained only one dollar, a writ of certiorari to review a refusal of the trial court to quash the indictment was dismissed, the court saying, "The third alleged infirmity in the indictment is that the false pretense charged is such that a person of ordinary prudence and caution would not be deceived by it. To this, it is a sufficient answer that it is of common knowledge that many persons. have been deluded by a like artifice. Laws are made to protect weak-minded and credulous, as well as sagacious, per

40 State v. Williams, 68 W. Va. 86, 69 S. E. 474, 32 L. R. A. (N. S.) 420.

41 State v. Burnett, 119 Ind. 392, 21 N. E. 972. See also, Commonwealth v. Grady, 13 Bush (Ky.) 285, 26 Am. Rep. 192. But com

On

pare Lefler v. State, 153 Ind. 82, 54 N. E. 439, 45 L. R. A. 424, 74 Am. St. 300, Derby's Cases 509; People v. McAllister, 49 Mich. 12, 12 N. W. 891; State v. Young, 76 N. Car. 258; State V. Estes, 46 Maine 150.

9142

sons. The wise and wary can protect themselves." As a rule, gross carelessness is a defense, but not mere credulity. 43 Whether the representation is calculated to deceive or not is to be determined by giving consideration to the surrounding circumstances and the intelligence of the victim.44 And it has been held that even where the proof shows that the exercise of ordinary care on the part of the defrauded party would have prevented him from being misled, it is still for the jury to determine whether he relied on the false representation and was thereby defrauded.45 However, it is not necessary that the deceived party should ultimately suffer loss.46

§ 498. Nature of the property obtained.—As a rule, the property obtained by means of the false pretenses must be such as to be capable of being stolen. Hence it can not be land. It is to be observed, however, that there are exceptions to this rule. Thus, the statutes of Wisconsin provide that obtaining by false pretenses a signature to a written instrument, the false making whereof would be punishable as forgery, is indictable.48 Under these statutes, however, which make "money, goods, wares, merchandise or other property" the subject of false pretenses, it has been held that

42 Oxx v. State, 59 N. J. L. 99, 35 Atl. 646; People v. Rosenberg, 200 Ill. App. 13.

43 State v. Fooks, 65 Iowa 196, 21 N. W. 561; People v. Cole, 137 N. Y. 530, 33 N. E. 336.

44 Smith v. State, 55 Miss. 513; People v. Summers, 115 Mich. 537, 73 N. W. 818; State v. Davis, 56 Iowa 202, 9 N. W. 123; Cowen v. People, 14 I11. 348; Bowen v. State, 9 Baxt. (Tenn.) 45, 40 Am. Rep. 71n.

45 State v. Knowlton, 11 Wash. 512, 39 Pac. 966.

46 Commonwealth v. Ferguson,

135 Ky. 32, 121 S. W. 967, 24 L. R. A. (N. S.) 1101, 21 Ann. Cas. 434.

47 People v. Cummings, 114 Cal. 437, 46 Pac. 284; Hayes v. Commonwealth, 173 Ky. 188, 190 S. W. 700; People v. Miller, 278 Ill. 490, 116 N. E. 131, L. R. A. 1917 E, 797n (cashier's check); State v. Ball (Miss.), 75 So 373 (physician's services a "valuable thing"); State v. Freeman, 172 N. Car. 925, 90 S. E 507.

48 Wisconsin Statutes (1913), § 4423. See also, State v. Black, 75 Wis. 490, 44 N. W. 635.

they do not include boarding and lodging.49 And, at common law, obtaining dogs by means of false pretenses is not a crime. Real property does not fall within the statute.50

51

§ 499. Property versus mere possession.—In the crime of larceny the thief acquires only possession of the property. In the crime of false pretenses, however, the wrongdoer acquires, under most of the statutes, the property itself. It has been held, however, that it is not essential that title to the property pass. It has been held that where the wrongdoer obtains the goods by falsely and fraudulently representing that he was sent for them by a customer for whom they are intended, he is guilty of the crime of false pretenses, notwithstanding the fact that the title to the goods does not pass. 52

§ 500. The false pretenses can be by acts as well as words. It has been held that the false pretenses must be either oral or written.53 This view, however, is erroneous. Words are merely signs of ideas. If the ideas are conveyed, the channel of communication, or the garb in which they are clothed, is immaterial.54 In this case the distinctive dress worn by the wrongdoer constituted, in part, the false pretenses. He was convicted of obtaining a pair of boot

49 State v. Black, 75 Wis. 490, 44 N. W. 635. See also, Reg. v. Gardner, 7 Cox Cr. C. 136.

76

50 State V. Klinkenberg, Wash. 466, 136 Pac. 692, Ann. Cas. 1915 D, 468.

51 Reg. v. Kilham, L. R. 1 C. C. 261. See also, Cline v. State, 43 Tex. 494; Kellogg v. State, 26 Ohio St. 15, Derby's Cases 499; 2 Bish. New Crim. L. (8th ed.), § 477.

52 Rex v. Adams, Russ. & Ry. 225; People v. Johnson, 12 Johns. (N. Y.) 292; Whart. Crim. L. (11th ed.), §§ 1405, 1443. See also, Com

monwealth v. Langley, 169 Mass. 89, 47 N. E. 511. (In this case the court holds that it is not essential that title to the property pass to the wrongdoer.)

53 People v. Conger, 1 Wheeler's Cr. C. (N. Y.) 448; People v. Dalton, 2 Wheeler Cr. C. (N. Y.) 161.

54 Rex v. Barnard, 7 Car. & P. 784. See also, Reg. v. Goss, 8 Cox. Cr. C. 262 (displaying false sample); Rex v. Story, Russ. & Ry. 81; Rex v. Freth, Russ. & Ry. 127; Commonwealth v. Drew, 19 Pick. (Mass.) 179.

straps of one V by falsely representing that he was a student at Oxford University and a commoner of Magdalen College. The conviction was sustained upon proof that at the time he obtained the goods he wore a commoner's cap and gown, and falsely stated that he belonged to Magdalen College. So convictions of false pretense have been sustained where there was a mere drawing of a check on a bank where the drawer had no funds, though there was no representation that the check was good, except that implied from offering it.55 But one who merely goes in an eating house and orders food with no money to pay for it is not guilty of false pretense.56

It also has been held that the false pretense must be the sole inducement that causes the party to part with his property.57 This view is contrary to the weight of authority.58 The false pretense must play a material part, however, in defrauding the party, and must have such an influence upon the owner, that, had it not been for the false pretenses, he would not have parted with his property.59

§ 501. The statutes applicable to donations for charitable purposes. It has been held that the statutes relating to false pretenses are restricted in their application to commercial transactions.60 This view, however, is wrong on principle and contrary to the great weight of authority. They are also applicable where the wrongdoer by false and fraudulent

55 State v. Foxton, 166 Iowa 181, 147 N. W. 347, 52 L. R. A. (N. S.) 919.

56 Reg. v. Jones, L. R. (1898) 1 Q. B. Div. 119, Derby's Cases 501. 57 People v. Conger, 1 Wheeler Cr. C. (N. Y.) 448; People v. Dalton, 2 Wheeler Cr. C. (N. Y.) 161.

58 Woodbury v. State, 69 Ala. 242, 44 Am. Rep. 515; State v. Metsch, 37 Kans. 222, 15 Pac. 251;

People v. McAllister, 49 Mich. 12, 12 N. W. 891; State v. Thatcher, 35 N. J. L. 445; State v. Stone, 75 Iowa 215, 39 N. W. 275; People v. Haynes, 11 Wend. (N. Y.) 557.

59 Commonwealth v. Drew, 19 Pick. (Mass.) 179; Whitehead v. State (Tex. Cr.), 196 S. W. 851.

60 People v. Clough, 17 Wend. (N. Y.) 351, 31 Am. Dec. 303.

representations induces another to donate money for charitable purposes.61

§ 502. Confidence games.-In some states there are statutes which make it a crime to obtain money or property "by any means, instrument or device commonly called confidence games." This is in fact a species of false pretense. Confidence games have been defined as "a swindling operation in which advantage is taken of the confidence reposed by the victim in the swindler."62 It seems that the employment of false tokens is unnecessary to conviction for this crime, and that it is sufficient to prove the obtaining of property by false verbal representations."

63

It is immaterial that the scheme by which the accused took advantage of the confidence of the one swindled, was in form a business transaction.64

61 Baker v. State, 120 Wis. 135, 97 N. W. 566. See also, Commonwealth v. Whitcomb, 107 Mass. 486; State v. Mathews, 91 N. Car. 635; State v. Carter, 112 Iowa 15, 83 N. W. 715; Strong v. State, 86 Ind. 208, 44 Am. Rep. 292n; State v. Styner, 154 Ind. 131, 56 N. E. 98; Reg. v. Jones, 1 Den. Cr. C. 551; 2 Whart. Crim. L. (11th ed.), § 1416; 2 Bish. New Crim. L. (8th ed.), § 467; State v. Swan, 55 Wash. 97, 104 Pac. 145, 24 L. R. A. (N. S.), 575, 133 Am. St. 1024, 19 Ann. Cas. 1129.

62 Powers v. People, 53 Colo. 43, 123 Pac. 642; Elliott v. People, 56 Colo. 236, 138 Pac. 39; People v.

Warfield, 261 Ill. 293, 103 N. E. 979; People v. Donaldson, 255 Ill. 19, 99 N. E. 62, Ann. Cas. 1913 D, 90. See also Wheeler v. People, 49 Colo. 402, 113 Pac. 312, and note to Ann. Cas. 1912 A, 758; People v. Weil, 243 Ill. 208, 90 N. E. 731, 134 Am. St. 364; People v. Crawford, 278 Ill. 134, 115 N. E. 901.

63 People v. Bertsche, 265 I11. 272, 106 N. E. 823, Ann. Cas. 1916 A, 729; People v. Miller, 278 Ill. 490, 116 N. E. 131, L. R. A. 1917 E, 797n.

64 Hughes v. People, 223 Ill. 417, 79 N. E. 137; People v. Bertsche, 265 I11. 272, 106 N. E. 823, Ann. Cas. 1916 A, 729.