Year: 1877

Case Of william Fay w. Common.


wealth.


This is a prosecution in fact, for obtain
mo money on false pretenceS, which Is mace
larceny bv the statute; and the indictment
is for larceny. 1t is n reasonable PROPOSE
tion that upon this indictment 1t is neces-
sary for the Commonwealth to prove every
fact which would be required to be alleged
in an indictment for obtaining money on
false pretences; and in such indictment 1t
would be n material allegation that the
money was obtained by the false pretence
alleged. and therefore was necessary to be
nroyed in this indictment in order to con-
r;ction, The false pretcnce must be the in
strument OF the cheat. (Bishop on Crimi-
nal Law. section 437.) The pretence need
moi have been the only inducement. II ope-
rating either alone or with other causes 1t
had controlling influence; so that but for
il the person TO whom it was addressed
would not have yielded, it is sufficient. In
n note to the above section the author says:
LIN Commonwealth rs. Drew 10 Pick,
I19) Morton ). stated the true doctrine thus:
That the false pretences, either with or
without the cooperation Of other causes, had
decisive influence upon the mind OF the
owner, so that without their weight he would
not have parted with his property" In
People U.s.. Haynes Q1 Wend., 557; Il
Wend.. 546) Chancellor Walworth employed
much the same language, saying: "1t is not
necessary to constitute the offence OF OBJ
tanning goods by false pretences that the
owner should have been induced to part
with his property solely and entirely by
pretences which were false, but il the jury
are satisfied that the pretences proved to
have been false and fraudulent were part
OF the moving causes which induced the
owner to part with his property, and that
the defendant would not have obtained the
goods il the false pretences had not been SUI
peraddcd to statements which may have
been true, or to other circumstances having
4 partial influence upon the mind OF the
owner, they will be justified in finding the
defendant guilty OF the offence charged
within the letter as we'll as the spirit Of the
statute on the subject" Other inducements
may have combined with the false pretences
TO induce the owner to part with his prop
ertv, but it must appear that but for the
false pretences the owner would not have
parted with his property; that they had the
controlling, prevailing influence. (Arnold's
case, X Graft, 561.)


The only proof OF any false pretence in
this case, or that the prisoner made any
statement that was not strictly true, is that
he said he was the owner OF the lots. 1t
appears from the certificate OF facts that in
the spring OF 1873 the prisoner had an
interview with George Z. Bowden, the
owner of two lots of land, in which Bow
den expressed his willingness to sell the
two lots together for $500, but declared
that he would not sell them separately, and
that afterwards in the latter part of JAN
umy. 1874, the prisoner sold one OF them to
Nelson Randolph "a colored many for 5000,
telling him he owned them; that Randolph
paid him so in cash. and agreed to pay the
balance in monthly instruments OF S15 each.
Ii is contended for the Commonwealth
THAT telling him that he was the owner Of
the lot - was a false pretence. But it is
not proved that lie (Randolph) was in
fuenced by that declaration to make the
purchase, and that he would not have pur-
chased and made the cash payment but for
that declaration OF prisoner. Nor can II be
inferred. 1t is rather to be presumed that
Randolph, desiringto have the lot, would
have accepted the offer Of the.prisoner if he
had said nothing to him about the owner
ship as lie made no inquiry or him about it
so far as the record shows. 1t does not ap-
pear that the declaration made by the pri-
Soner was made in response to an inquiry
made by Randolph, but seems to have been
incidentally mentioned by the prisoner
This defect in the proof, if it had been in
the allegations Of an indictment for OBJ
tanning money on false pretences, would
have been fatal on demurrer, and
it would seem ought to avail the
prisoner as effectually in this proceeding.
The Court is of opinion, therefore, that
upon this ground the verdict was contrary
TO the law and the evidence, and ought to
have been set aside. The Court is further
OF opinion that unless the selling was by
false pretence, 1oith intent to defroad the
buyer, the case is not within the statute. It
follows that the fraudulent intent must have
existed at the time the false pretences were
made by which the money was obtained.
/! there was an intention by the prisoner
to defraud Randolph he could not have in
tended. when he sold to him the lot and re-
ceiyed fifty dollars in part of the price, ever
TO paSs to him title for the same. But the
facts as certified by the Court show the
contrary 1t is fair inference from them
that he had previously been in treaty with
Bowden for the purchase of the lots, and
ascertained that he could purchase them
together for $500, aad was we'll satisfied
that all that was necessary for him to do
was to accept Bowdes's offer and the lots
were his. And finding that he could sell
each lot for $500, and make handsome
speculation. he determined to take them at
Bowden's offer, and considered them as
virtually his. 1t is evident that he had no
purpose to cheat Randolph by inyeigling
him to pay hum his money for property
which he had no right TO sell him, and
for which he could not and did not intend
to make him title. This is shown by the
fact that few days after the sale to Ran.
dolph he went to Bowden and completed
the contract OF purchase with him, paying
him in cash fifty dollars, the money or the
amount he had received from Randolph,
and executing his notes for the deferred
payments, and entering into articles of
agreement with him setting out the terms
OF the sale and purchase, Informing him
that he had sold each OF the lots for S200, mt
an advance OF $l0o on the price he was to
pay him for them, and requesting him wi hen
the purchase-mOney Ras paid to convey the
lots respectively TO bis vendees. BY this
conduct he showed bona .fde intention
that Randolph should get ghat he sold him,
ane for which be had received the cash pay.
menf, and eonclusiyely repe]s the idea Of
an Intent TO cheat or defraud him In the
sale. IT. in his subsequent dealing with
nim, there Was evidence to shoW, that he
had ehange6 bis purpose and sought to
cheat and deffand him--Which we think
there is not-itcould not make the previous
actfraudulent and criminal which was bona
fds and lawful. TIE payments which he