1846. HAMILTON V. The QUEEN. a party made a false pretence, the result of which Queen's Bench. was his gaining an advantage which he did not contemplate; as if he made a false representation in order to obtain an office, but the party to whom he applied, instead of giving him the office, relieved him by a gift in money yet this would not be an offence within the statute. Therefore the "intent to defraud " of "the same" must refer to the pretence as well as to the obtaining. The crime is fully defined by Buller J. in Young v. The King (a). "The ingredients of this offence are the obtaining money by false pretences, and with an intent to defraud. Barely asking another for a sum of money is not sufficient; but some pretence must be used, and that pretence false: and the intent is necessary to constitute the crime. If the intent be made out, and the false pretence used in order to effect it, it brings the case within this statute." In Rex v. Wakeling (b) a pauper falsely told the overseer, with the view of being excused from working, that he had no shoes; and the overseer, believing the falsehood, gave him shoes and it was held by the Judges that the case was not within stat. 30 G. 2. c. 24. s. 1. Secondly: the count ought to have shewn how the false pretence was calculated to effect the obtaining. Where the pretence is such that it at once appears how the pretence operated on the mind of the party defrauded, it is enough but where, as in this case, no such connection is apparent, but only that such an effect might possibly be produced, there should be introductory averments to shew the relevancy. In Young v. The King (a) the connection sufficiently appeared. Witchell's Case (c), (a) 3 T. R. 98. 104. (b) Russ. & R. 504. Volume IX. 1846. HAMILTON V. c. 11. Rex v. Airey (a), Rex v. Perrolt (b), are instances where the pretence obviously would effect the obtaining. But, where, for instance, the obtaining is effected by using The QUEEN. the name of a customer of the party defrauded, there is always in the indictment an introductory averment that the person named was such customer. Thirdly, it ought to have been shewn that in fact the particular pretence did induce the party defrauded to give the security. The averments ought not to be less precise than in an indictment for perjury before stat. 23 G. 2. The two are put on the same footing by Lord Ellenborough in Rex v. Perrott (b). As, therefore, in an indictment for perjury it is necessary to shew that the fact falsely sworn to was material to the question at issue, so here it is necessary to shew that the false pretence was that which effected the obtaining. [Patteson J. We cannot say that there was any other pretence than that by means of which it is alleged that the security was obtained.] On this indictment, nothing is shewn but a naked lie. A similar objection appears to have prevailed in Regina v. Tully (c): and the Judges held a conviction wrong, to which the same objection was made, in Rex v. Reed (d). [Lord Denman C. J. I do not think that case came, as the report states, before the Judges. Patteson J. It is not usual for the Judges to consider alleged defects which appear on the face of the indictment and are therefore ground for a writ of error.] Regina v. Wickham (e), though not directly in point, illustrates the principle now contended for. There the waut of connection between a false pretence (a) 2 East's Pl. Cr. 831. (c) 9 C. & P. 227. (e) 10 A. & E. 34. (b) 2 M. & S. 379. and the effecting the object was held to make the indictment bad, so far as that pretence went. Fourthly, the falsehood of the pretence is not properly made to appear. Rex v. Perrott (a) shews that it is not sufficient simply to state that the party charged falsely pretended, by means of which false pretence he obtained. The question therefore is, whether the words in which the pretence is here specifically negatived be sufficient. The pretence is that the defendant "then" was a captain &c., that is, on the day and year aforesaid, 27th March, 8 Victoria: but the subsequent allegation is that he was not so "at the time of making such last mentioned false pretence." Now the two are compatible. He might have been what he alleged at the early part of the day, but have ceased to be so before he made the supposed false pretence; and, in that case, if he only pretended that he, at some time in the day, was so, the pretence would not be false. The ambiguity of the word "then" appears from Stead v. Poyer (b). Fifthly, the count ought to have shewn that the security was unsatisfied. The words in sect. 53 of stat. 7 & 8 G. 4. c. 29. are indeed "valuable security:" but the question is whether it is enough to follow the general words without shewing what the facts are that bring the case within the words. A security, if satisfied, would not be valuable." Sect. 5 of the same statute, which punishes the stealing of valuable securities, has the words "remaining unsatisfied:" it may be assumed that in the two sections the legislature was referring to securities of the same kind. Queen's Bench. 1846. HAMILTON V. The QUEEN. Volume IX. 1846. HAMILTON v. C. Clark, contrà. The first three objections involve merely matter of evidence. The count here could be satisfied only by shewing that the pretence did operate The QUEEN. in effecting the fraud, and that this was the intention of the defendant. The pretence is here as closely connected with the obtaining as in Rex v. Freeth (a) where the indictment was sustained, or as in Rex v. Crossley (b) where no such objection was made. One pretence only is mentioned: and it is alleged that the goods were obtained by means of that. [Lord Denman C. J. What do you say as to the want of averment *that the security was unsatisfied?] In Regina v. Blake (c) it was held not necessary to describe the goods. [Lord Denman C. J. That was an indictment for conspiring to carry away goods without payment of duty: the gist was the conspiracy: the rule might perhaps be stricter in the present case.] It is enough to shew in evidence that the security was unsatisfied: that is the proof that it was valuable, which is all that the statute makes requisite. The count does state the value, 500. [Lord Denman C. J. After verdict, it is sufficient, by stat. 7 G. 4. c. 64. s. 21. (d), if the offence is described in the words of the statute creating the offence.] Reference has been made to sect. 5 of stat. 7 & 8 G. 4. c. 29.: but that section relates to a different offence, namely stealing. Lord DENMAN C. J. I think none of the objections valid indeed my difficulty is to find a doubt. As to the first I think it is not necessary to state that the false pretence was made with the intention of obtaining the (b) 2 Moo. & Rob. 17. (a) Russ. & R. 127. (c) 6 Q. B. 126. (d) See Regina v. Martin, 8 A. & E. 481. 1846. HAMILTON thing, if it be proved that in fact the party charged did Queen's Bench. intend to obtain the thing, made the false pretence, and did thereby obtain it. I am by no means sure that it is necessary even to prove that the representation was made with the particular intent. As to the second : objection we can easily conceive how a belief that the PATTESON J. I am not sure that the words of stat. 7 G. 4. c. 64. s. 21. may not apply to the first three objections, as well as to the last but that I need not consider; they clearly do meet the last. Then, as to the other objections, it could not be necessary to state that there was no pretence besides that charged. Had the defendant shewn that there was any other which caused the giving of the security, he must have been v. The QUEEN. |