State v. Colly

• Decision Date: 01 June 1887
• Docket Number: 1182
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. CLEMENT COLLY

2 So. 496

39 La.Ann. 841

THE STATE OF LOUISIANA v. CLEMENT COLLY

No. 1182

Supreme Court of Louisiana

June 1, 1887

APPEAL from the Twenty-sixth District Court, Parish of St. Charles. Rost, J.

Gervais Leche, District Attorney, and Chas. A. Baquie, for the State Appellee.

James D. Augustin, for Defendant and Appellant.

OPINION

POCHE J.

This appeal is from a conviction under a charge that the accused "feloniously, unlawfully and knowingly did falsely pretend to one Turner Wilson that he, the said Clem. Colly would, for and in consideration of the sum of twenty-five dollars, procure the release upon bail of one Manuel Billup, then in custody charged with murder; by which said false pretence he, the said Clement Colly, did unlawfully obtain from the said Turner Wilson $ 12.50 in cash money, and was then and there entrusted with a certain horse in pledge for the remaining balance of $ 12.50, with intent to defraud, whereas, in truth and in fact, the said Clement Colly, at the time he so falsely pretended, as aforesaid, well knew said pretences to be false."

The information was framed under section 813 of the Revised Statutes, which reads:

"Whoever by any false pretence shall obtain, or aid and assist another in obtaining, from any person, money or any property with intent to defraud him of the same, shall on conviction be punished by imprisonment at hard labor or otherwise not exceeding twelve months."

Among other complaints, the defendant urges in a motion in arrest of judgment that the information filed against him cannot sustain a conviction, for the reason that it does not contain the charge of an offence known to the laws of Louisiana.

The offence denounced by section 813 of the Revised Statutes as construed in conformity with the common law of England (Sec. 976 R. S.) contemplates a false statement by the accused of a past event or of an existing fact, and it excludes any representation in regard to a future transaction. Wharton, American Criminal Law, sec. 2085, 2087, 2096, 2112; Bishop on Criminal Law, vol. 2, secs. 397, 400, 401.

Hence it follows that a promise is not a pretence, and that a promise which a man makes and which he does not intend to keep, does not fall within the scope of the legal definition of a false pretence.

In the case in hand, it is not denied that the person whom the accused offered or promised to have released on bail was then in actual custody on a...