1877. January Term. Fay's Case Richmond, Va., February 1st, 1874. This 1st day of February, 1874, between Geo. E. Bowden, of the city of Richmond, of the first part, and Wm. Fay, of the said city, of the second part, doth agree, in consideration of the sum of three hundred dollars, payable one-fourth cash and the balance in three equal instalments of eight, sixteen and twentyfour months (with interest added) respectively, after date, to convey to Wm. Fay, of the second part, or his heirs or assigns, certain real property in the county of Henrico, state of Virginia, as follows: all that certain lot, piece or parcel of land lying and being in the county of Henrico, near Union hill, on the west side of 25th street, between R and S streets, fronting sixty feet on 25th street, running back between parallel lines one hundred and twenty-five feet to an alley in common fourteen feet, designated as lots Nos. six and seven in square 121 of Adam's plan, being the same land conveyed to the said George E. Bowden, of the first part, by deed dated July 13th, 1868. And we do agree that the title to the above property shall be retained until all the purchase money is paid. GEO. E. Bowden, It was further proved, that on the delivery of this paper, the prisoner said to Bowden, "I have made one hundred dollars to-day, for I have sold those lots to two colored men;" and asked that the deed should not be made until they paid, and then made to them, to save expense; that Bowden replied, "I don't care, as I have got my price;" that the prisoner thenceforward paid the taxes on the lots, Bowden declining to pay when the bills were presented to him, and send 1877. January ing the collectors to Fay, the prisoner, telling them that Fay had bought them; the taxes on Randolph's lot Term. being charged to him, and paid by him to Fay in the first payment to Fay; that when the prisoner's first Fay's Case note fell due he failed to pay it, saying the negroes had not paid him; that he paid it eventually, but in instalments. And that he failed to pay the balance, continuing his excuse for failure to pay on the same ground, and did not pay at all; the balance remaining unpaid until paid by the negro, Randolph, in April 1876, to Bowden, in order to get his title; and that Randolph never knew or was informed that the property did not belong to Fay until he asked for his deed. It was further proved that shortly after the last payment on said note, Fay went into bankruptcy, and has never paid the other notes. It was further proved, that upon Nelson Randolph completing his payments as agreed, Fay gave him the following order on Bowden, to wit: April 3, '76. Mr. Bowden: Sir,-This is to certify that Nelson Randolph has paid all except $1.00 for one lot of land on 25 st., in sq. 121, fronting on 25 st. 30 ft., running back 125 ft., it being the south lot. Is entitled to his deed as soon as he pays the balance and I settle with you. WM. FAY. That Randolph went to see Bowden with Fay's order, but that Bowden refused to give Randolph his deed unless the balance of the one hundred and fifty dollars due on that lot by Fay was paid to him, and 1877. Fay himself, a few days after, went with Randolph to January Term. Fay's Case see Bowden, with the same result, and that Randolph finally paid his balance, amounting to eighty-seven dollars of principal and interest, when Bowden executed his deed to Raudolph, the prisoner telling him that was the best thing to do, and promising to reimburse him; which he had not done. It was further proved that the prisoner had lived in the city for above twenty years, and was a man of good repute. Upon the application of the prisoner, a writ of error and supersedeas was awarded by this court. Crump, Young and Keiley, for the prisoner. The Attorney General, for the commonwealth. ANDERSON, J., delivered the opinion of the court. This is a prosecution in fact for obtaining money on false pretences, which is made larceny by the statute; and the indictment is for larceny. It is a reasonable proposition, that upon this indictment it is necessary 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 it would be a material allegation that the money was obtained by the false pretence alleged, and therefore was necessary to be proved in this indictment in order to a conviction. The false pretence must be the instrument of the cheat. Bishop on Criminal Law, § 437. The pretence need not have been the only inducement. If, operating either alone or with other causes, it had a controlling influence, so that but for it the person to whom it was addressed 1877. January would not have yielded, it is sufficient. In a note to the above section the author says: In Commonwealth Term. v. Drew, 19 Pick. R. 179, Morton, J., stated the true doctrine thus: "that the false pretences, either with Fay's Case or without the coöperation of other causes, had a decisive influence upon the mind of the owner, so that without their weight he would not have parted with his property." In People v. Haynes, 11 Wend. R. 557, 14 Wend. 546, Chancellor Walworth employed much the same language, saying: "It is not necessary to constitute the offence of obtaining 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 if the jury are satisfied that the pretences proved to have been false and fraudulent were a part of the moving causes which induced the owner to part with his property, and that the defendant would not have obtained the goods if the false pretences had not been superadded to statements which may have been true, or to other circumstances having a 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 well 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 property; 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. Anable's case, 24 Gratt. 563, 567. 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. It appears from the certificate of facts that, in the spring of 1873, the prisoner had an interview with Fay's Case 1877. George E. Bowden, the owner of two lots of land, in January Term which Bowden expressed his willingness to sell the two lots together for $300, but declared that he would not sell them separately; and that afterwards, in the latter part of January 1874, the prisoner sold one of them to Nelson Randolph, a colored man, for $200, telling him he owned them; that Randolph paid him fifty dollars in cash, and agreed to pay the balance in monthly instalments of fifteen dollars each. It 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 he, Randolph, was influenced by that declaration to make the purchase, and that he would not have purchased and made the cash payments but for that declaration of the prisoner, nor can it be inferred. It is rather to be presumed that Randolph desiring to have the lot would have accepted the offer of the prisoner if he had said nothing to him about the ownership, as he made no inquiry of him about it, so far as this record shows. It does not appear that the declaration made by the prisoner 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 obtaining 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, with intent to defraud the buyer, the case is not within the statute. It follows that the fraudulent intent must have existed at the time the |