Higler v. People
| Decision Date | 06 October 1880 |
| Citation | 44 Mich. 299,6 N.W. 664 |
| Court | Michigan Supreme Court |
| Parties | HIGLER v. PEOPLE. |
Falsely representing one's self as a "storekeeper" may be a "false pretence" within the meaning of the statute, (Gen.Laws 1879, p. 197,) in regard to obtaining money and goods under false pretence.
Error to recorder's court of Detroit.
Miller & Clarke, for plaintiff.
Otto Kirchner, Att'y Gen., for the People.
The plaintiff in error has been convicted in the recorder's court of Detroit upon an information charging him with obtaining $25 of one Burley by false pretences. The pretence alleged was "that he, the said John Higler, was then and there engaged in store keeping in Cadillac, Wexford county Michigan." [*] No further representations are set up as accompanying this false pretence, whereby it was made effective.
The question now is whether the information will sustain the conviction. The statute under which the information was filed is as follows: "Every person who, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretence, cause any person to grant, convey, assign, demise, lease, or mortgage any land, or obtain the signature of any person to any written instrument, the making whereof would be punishable as forgery, or obtain from any person any money, personal property, or valuable thing, or, by means of any false weights or measures, obtain a larger amount or quantity of property than was bargained for, shall be punished by imprisonment," etc. Gen.Laws 1879, p. 197.
It is said that this statute enumerates certain kinds of false pretences, and that, according to a familiar rule of construction, the "other" pretences which the statute intends can be those only which are of a kindred nature to those which are mentioned. People v. Harris, 3 Hawks, 620; State v Summer, 10 Vt. 599. But the rule has no application, because this statute does not attempt an enumeration of the pretences that shall be held criminal. False tokens are mentioned, but the term is general, not particular; and the same may be said of false writing. The idea suggested to the mind by them is something cognizable to the sight or touch. "Any other false pretence" is a specification equally general, and will embrace other classes.
It said further that the pretence, to be within the statute, must be one calculated to deceive a man of ordinary prudence, and that if it be a false representation of facts, these facts must be such as were calculated to influence a person of common caution to part with that which was obtained. Is the false representation that one is a "store-keeper" a pretence of this sort? It may be true, and yet the man be utterly without responsibility and without character; and in that case the fact of the business would offer no security that a loan made in reliance upon it would be repaid. The term is indefinate: it may mean a wholesale merchant, or a petty dealer in toys or candies, it may imply a principal, or an agent or servant; it may be applied to one notoriously without capital, and who lives by his wits rather than by legitimate trades; in short, disconnected from all else, it can never indicate that the person who bears the designation is one who can safely be trusted with a loan. All this is true; and if the reliance in accomodating another person with a loan were pecuniary means or responsibility, it might be very conclusive. But, notoriously, the fact is otherwise. Men are trusted in large amounts every day who have no pecuniary responsibility, and are known to have none. Sometimes the reliance for repayment will be a supposed business ability sometimes on business that would be injured by the existence of overdue debts; but most often, perhaps, a reputation for integrity. And if in any case the existence of any particular fact would be likely to beget confidence, there is no reason why a false assertion of its existence should not be a criminal pretence, as much as would be a false assertion of pecuniary responsibility, provided it is equally relied upon, and equally effectual to accomplish the fraud designed.
Pecuniary responsibility is no more a necessary attendant upon a commission in the army than upon the keeping of a store, but the false assertion that one holds such a commission has been held a false pretence. Reg. v. Hamilton, 1 Cox, C.C. 244; S.C. on appeal. 9 Q.B. 271; Thomas v. People, 34 N.Y. 351. So the pretence that one is buying horses as a gentleman's servant may be a criminal false pretence though the fact of service by itself would not be likely to inspire confidence, except in connection with the further fact, expressed or understood, that the master was to pay the purchase price. Reg. v. Dale, 7 C. & P. 352. Now, it is unquestionable that the fact that one is a store-keeper is one which would be likely to give a degree of confidence and credit. There is an implication, if not of solvency, at least of the possession of considerable money, in the very idea that one is keeping a store. With no knowledge of his responsibility, one would sooner trust him for small sums than if he had no business, or if his business were unknown. A store-keeper is not expected to refuse payment of small debts, whether payment can or cannot be enforced. It is inconsistent with business prosperity that he should do so, and, prima facie, he will have in his hands the means whereby such debts may be paid; and if such a person, when away from home, had occasion to borrow a few dollars for expenses, a lender would trust, not to his responsibility, but to his honor, for repayment, and would probably ask no...
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