State v. King
| Decision Date | 29 July 1892 |
| Citation | 34 A. 461,67 N.H. 219 |
| Parties | STATE v. KING. |
| Court | New Hampshire Supreme Court |
Motion to quash indictment of Joseph King, charging him with obtaining money by false pretenses. Motion denied.
Indictment for obtaining money by false pretenses. The Indictment charged that the respondent, at Concord, on the 12th day of January, 1892, "with force and arms, with intent to cheat and defraud one Erzemia Sawyer, did falsely and fraudulently represent to said Erzemia Sawyer that he, the said King, was a doctor of medicine, and for the sum of three dollars and fifty cents he would furnish her with medicine, which he would bring the next morning, by means of which false and fraudulent pretense he, the said K ing, did then and there wrongfully and fraudulently obtain from the said Erzemia Sawyer the sum of three dollars and fifty cents in money, whereas, in truth and in fact, the said King was not a doctor of medicine, and did not intend to furnish her with any medicine, but on the contrary his aforesaid false statement was a contrived plan to cheat and defraud said Erzemia Sawyer, all of which the said King then and there well knew, to the great damage of the said Erzemia Sawyer, and contrary to the form of the statute," etc The respondent moved to quash the indictment because there was no allegation that the person alleged to be cheated and defrauded relied on the promise made by the respondent to furnish the medicine, and because his representation that he would bring it the next morning was only a promise to furnish a thing in the future, and not a representation of an existing fact.
D. B. Donovan, for the State.
W. A. J. Giles and P. H. Gould, for defendant.
This proceeding is founded upon section 1, c. 273, Pub. St., which provides, "If any person, with intent to cheat or defraud, shall, by personating or representing another, or by means of any false pretense or false token, counterfeit letters, or other false means, wrongfully obtain any money or other property, * * * he shall be fined * * * or be imprisoned" as therein specified. Under this statute, four things are necessary to constitute the offense described: First, there must be an intent to defraud; second, there must be a false pretense; third, the property of another must be wrongfully obtained; and, fourth, the false pretense must be the operative cause of its transfer. All these things are set forth in this indictment. The fraudulent intent, the false pretenses, the actual perpetration of the fraud, and its accomplishment by means of the pretenses used, are distinctly and formally charged and alleged. It is nevertheless contended by the respondent that the indictment is fatally defective, upon its face, because (1) it does not aver that the owner of the property relied upon the alleged false and fraudulent pretenses, and by relying upon them was defrauded; and (2) that the promise to bring the medicine the next morning was only a promise to furnish a thing in the future, and not a representation of an existing fact.
The first objection is not well taken. It is not necessary for the indictment to allege in specific words that the defrauded party relied upon the defendant's false pretenses as true, and, by relying upon them, was defrauded. This is a matter of proof, rather than of averment. The statute describes and defines the offense, and the indictment charges it against the defendant in substantially the words of the statute. This is sufficient. State v. Gove, 34 N. H. 510; State v. Abbott, 31 N. H. 434, 439; State v. Thornton, 63 N. H. 114, 115. It is, however, a necessary implication from the allegation, "by means of which false and fraudulent pretenses, be, the said King, did then and there wrongfully obtain," etc., that the owner of the property so obtained did rely upon the pretenses as true, and was induced by them to part with the property, and the allegation of the fact is sufficient State v. Hurst, 11 W. Va. 54; People v. Jacobs, 35 Mich. 36; State v. Penley, 27 Conn. 587; Norris v. State, 25 Ohio St 217.
The second objection is well taken. A promise is not a pretense. "Both in the nature of things, and in actual adjudication, the doctrine is that no representation of a future event, whether in the form of a promise or not, can be a pretense, within the statute, for it must relate either to the past or to the present." 2 Bish. Cr. Law (7th Ed.) § 420, and authorities cited. "The essence of the offense is that the false pretense should be of a past event, or of a fact having a present existence, and not of something...
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