the Code, as they are not representations of a matter of fact either present or past. The King v. Nowe, 8 Can. Cr. Cas. 441, 36 N.S.R. 531. A representation by the person obtaining goods that he would pay for them the following week is not a representation of fact, either past or present, and any belief by the prosecutor that such a promise was a false pretence within the meaning of the Criminal Code is unreasonable. Mott v. Milne (1898), 31 N.S.R. 372. And where prisoner obtained a sum of money from the prosecutor by pretending that he carried on an extensive business as an auctioneer and house agent, and that he wanted a clerk, and that the money was to be deposited as security for the prosecutor's honesty as such clerk, and the jury found that the prisoner was not carrying on that business at all. It was held that this constituted an indictable false pretence. R. v. Crab, 11 Cox, 85; R. v. Cooper, 13 Cox, 617. On the trial of an indictment against the prisoner for pretending that his goods were unencumbered, and obtaining thereby eight pounds from the prosecutor with intent to defraud, it appeared that the prosecutor lent money to the prisoner at interest, on the security of a bill of sale on furniture, a promissory note of prisoner and another person and a declaration made by prisoner that the furniture was unencumbered. The declaration was untrue at the time it was handed to the prosecutor, the prisoner having a few hours before given a bill of sale for the furniture to another person, but not to its full value. It was held that there was evidence to go to the jury in support of a charge of obtaining money by false pretences. R. v. Meakin, 11 Cox, 270. The word "owner" following the signature of the accused in a letter written by him inviting negotiations for the charter of a vessel in his possession and managed by him, does not in itself constitute a representation by the accused that he is the "registered owner." R. v. Harty (1898), 2 Can. Cr. Cas. 103. The prisoner representated to the prosecutor that a lot of land on which he wished to borrow money had a brick house upon it, and thus procured a loan, when in fact the land was vacant. It was held that he was properly convicted of obtaining the money under false pretences. R. v. Huppel (1861), 21 U.C.Q.B. 281; R. v. Burgon (1856), 1 Dears. & B.C.C. 11, 7 Cox C.C. 131; R. v. Eagleton (1855), 6 Cox C.C. 559. 405. Every one is guilty of an indictable offence and liable Obtaining to three years' imprisonment who, with intent to defraud, by by false any false pretense, either directly or through the medium of pretense. any contract obtained by such false pretense, obtains anything capable of being stolen, or procures anything capable of being stolen to be delivered to any other person than himself. 55-56 V., c. 29, s. 359. Jurisdiction.]-The offence consists in obtaining the goods, and not in making the false pretences whereby they might be obtained, and therefore a court has jurisdiction to try a charge of obtaining goods by false pretences, where the goods have been obtained within the jurisdiction of the court dealing with the charge, although the false representations may have been made beyond the jurisdiction. Reg. v. Ellis, [1899] 1 Q.B. 230. In cases of false pretences the crime is completed where the goods are obtained. R. v. Cooke, 1 F. & F. 64; R. y. Holmes, 15 Cox C.C. 343. Form of charge.]-The following form of stating the offence is provided by Code form 64, (c):-"A. obtained by false pretences from B. a horse, a cart, and the harness of a horse at on Indictment.]-It is not necessary that the indictment should allege an intent to defraud a particular person. Cr. Code 885 (c). And before the Code an indictment for obtaining money by false pretences by means of fraudulent post office orders was upheld upon a general allegation of “intent to defraud." R. v. Dessauer (1861), 21 U.C.Q.B. 231. The intent to defraud is necessary to constitute the offence, and yet the statutory form contains no allegation of such intent. Section 863 of the Code made an indictment which charges any false pretence, etc., valid, although it does not set out in detail in what the false pretence consisted. This, it is submitted, does not mean that the false pretence need not be set out at all. While Meredith, C.J., in his judgment in R. v. Patterson (1895), 2 Can. Cr. Cas. 339, speaks of the "addition of the words unnecessarily setting out in what the false pretences consisted," and expresses the view that the indictment would have been fully authorized if laid “without alleging in what the false pretence consisted," it will be observed that Rose, J., limits his opinion to the case of an indictment in which the false pretence is not set out in detail. By Code sec. 1152 the several forms varied to suit the case, or forms to the like effect, shall be deemed "good, valid and sufficient in law." It is submitted, however, that the form 64 cannot override the express requirement of sec. 852, which demands that every count of an indictment shall be in "words sufficient to give the accused notice of the offence with which he is charged” (sub-sec. 3). Section 853 is in its terms confined to the setting forth of details of the circumstances of the alleged offence, and it is submitted that to state what the false pretence was, is a matter rather of describing the offence. than of detailing the circumstances. Moreover, the false pretence, and not the mere fact of obtaining the property, would seem to be the gist of a charge of obtaining goods by a false pretence. It seems probable also that sec. 863 applies only where the false pretence, etc., is charged against the accused, and if the charge were for knowingly "receiving" goods obtained by false pretences, it would be necessary to look at the law as it was before the Code to find whether or not the false pretence should be particularized. In the case of Taylor v. The Queen, [1895] 1 Q.B. 25, it was held that an indictment for receiving goods, knowing the same to have been unlawfully obtained by false pretences, is good without setting out the false pretences, for, the gist of the offence being the receipt of the goods with knowledge that they had been unlawfully obtained by some false pretence, it is sufficient to so allege without specifying the nature of the pretence (Mathew, J., and Charles, J.). The court there refused to treat as a binding authority the unreported case of Reg. v. Hill decided in 1851 and noted in 2 Russell on Crimes, 5th ed. 482, 6th ed. 437, in which the contrary had been held at the Gloucester Assizes. Mathew, J., said that for many years it had been the practice not to set out the particular false pretences by which the money or goods were alleged to have been obtained, in an indictment for "receiving"; and Charles, J.. decided the case "on the broad ground that the indictment contains all the allegations which it is necessary to prove in order to bring home the offence charged to the defendant." In The Queen v. Broad (1864), 14 U.C.C.P. 168, it was held by the Court of Common Pleas of Upper Canada that an indictment was valid where a prosecutor had been bound by recognizance to prosecute and give evidence upon a certain trial, notwithstanding that there was a variance between the specific perjury charged in the information and the specific charge of perjury contained in the indictment, and although the statute then in force, 24 Vict. (Can.), ch. 10, sec. 10, forbade an indictment for certain offences named, including perjury, unless a recognizance had been given "to prosecute or give evidence against the person accused of such offence," or unless the accused had been committed or bound over to "answer to an indictment to be preferred against him for such offence," etc. John Wilson, J., in delivering the judgment of the court, said: "If the indictment set forth the substantial charge contained in the information, so that the defendant had reasonable notice of what he had to answer, we should incline to think this a compliance with the statute, and would refuse to quash the indictment." Intent to defraud.]—Evidence is admissible of facts which are subsequent to the false representation, to prove the insolvency of the defendants a very short time after the false representation had been made, as an evidence of their knowledge of its falsity when they made it. R. v. Boyd (1896), 4 Can. Cr. Cas. 219 (Que.). Other similar acts as evidence.]-Upon a charge of obtaining goods under false pretences, evidence of other similar acts committed by the accused is not admissible in corroboration of the fact that he committed the act charged, but upon due proof of the act charged such evidence may be given in proof of criminal intent or of guilty knowledge. R. v. Komiensky (No. 2), 7 Can. Cr. Cas. 27, 12 Que. K.B. 463. Other false pretences at other times to the same person are admissible, if they are so connected as to form one continuing representation, which it is the province of the jury to determine. R. v. Welman, Dears. 188, 6 Cox 153. R. v. Ollis, [1900] 2 Q.B. 758, was a prosecution for obtaining money by falsely pretending that three cheques which the accused gave to the prosecutors were good and valid orders for the payment of money. The accused had been previously acquitted on a similar charge on the prosecution of another person. It was held that the facts connected with the charge on which the accused had been acquitted could be given in evidence to shew that he had no reasonable ground for believing that there would be funds to meet the cheques on which he obtained the money from the prosecutors in the case then being tried. The fact that the accused had on another day passed a cheque which had been dishonoured was a circumstance to shew a course of conduct on the part of the accused, and that the passing of the cheques in question was not a matter of forgetfulness, but that they were bad to his knowledge. R. v. Ollis, [1900] 2 Q.B. 758. In the case of R. v. Rhodes, [1899] 1 Q.B. 77, the prisoner had been indicted for obtaining from one William Bays a number of eggs by false pretences, to the effect that he was a farmer and dairyman and required them for his business. The prisoner had advertised in various newspapers, under the style of Norfolk Farm Dairy, High Street, Mitcham, for newlaid eggs, and had obtained consignments of eggs at different dates, extending over two months, from Bays and from other persons named Ellston and Chambers. He was indicted for the single transaction with Bays. It was proved on the part of the prosecution that the prisoner's business at Mitcham was an entire sham, and he was found guilty and sentenced to a term of imprisonment. It was held on a case reserved that the evidence of Ellston and Chambers of dealings with the prisoner, the one a week and the other two months after the offence charged in the indictment, was, on the whole, admissible. It was not too remote, since the transactions of these witnesses with the prisoner were the result of the same advertisement, and went to shew the prisoner's intention to carry out one entire scheme of fraud by means of a business which was a sham. Execution of valuable security obtained by fraud. To prove intent to defraud, evidence of similar frauds having recently been practised by the defendant upon others is admissible. R. v. Durocher, 12 L.R. 697 (Que.). And see notes to secs. 259 and 386. Attempt to obtain by false pretence.]-On an indictment for the offence of having obtained money by false pretences, the defendants cannot be convicted of the full offence when the evidence proved only that by the discount of their promissory note they had only obtained a credit in account, such credit in account being a thing not capable of being stolen, but they might, if the evidence should establish an attempt to obtain the money, be convicted of such attempt. R. v. Boyd (1896), 4 Can. Cr. Cas. 219 (Que.). On an indictment for obtaining money under false pretences, the accused may be convicted of an attempt to commit the offence. Code sec. 949; R. v. Goff (1860), 9 U.C.C.P. 438. Extradition.]-By the Extradition Convention of 1901 with the U.S.A. "Obtaining money, valuable securities, or other property by false pretences," was added to the list of extraditable crimes between the British Empire and the United States. Where the basis of a charge of extradition is an alleged falsification of a written document, either the document itself must be produced or a foundation must be laid for secondary evidence of its contents; and a commitment for extradition is invalid as not disclosing a prima facie case unless this has been done. Re Harsha (No. 1) (1906), 10 Can. Cr. Cas. 433; Re Johnston (1907), 12 Can. Cr. Cas. 559. 406. Every one is guilty of an indictable offence and liable to three years' imprisonment who, with intent to defraud or injure any person by any false pretense, causes or induces any person to execute, make, accept, endorse or destroy the whole or any part of any valuable security, or to write, impress or affix any name or seal on any paper or parchment in order that it may afterwards be made or converted into or used or dealt with as a valuable security. 55-56 V., c. 29, s. 360. Valuable security.]-For statutory definition see sec. 2(40), and presumption as to value, Code sec. 4. A lien note is a "valuable security" within the meaning of sec. 406 of the Code. The King v. Wagner (1901), 6 Can. Cr. Cas. 113, 5 Terr. L.R. 119. By false pretence.]-Where two parties enter into a voidable betting or gaming contract, each putting up his own cheque post-dated the day on which the result of the bet would be ascertained, the fact that the loser's cheque was dishonoured because he had no account at the bank will not support a charge that he obtained the execution of the winner's cheque delivered to the stakeholder for a like amount by false pretences with intent to defraud. The giving of a post-dated cheque implies no more than a promise to have sufficient funds in the bank on the date thereof and is not, in itself, a false representation of a fact past or present. Intent to defraud could not be found because the complainant was legally entitled to withdraw from the voidable contract even after the event upon which the bet was placed. R. v. Richard (1906), 11 Can. Cr. Cas. 279 (Que.). Evidence.]-On the charge of obtaining the giving of a note by false representations, evidence is receivable that at the same time the prisoner was engaged in practising a series of systematic frauds upon the farming community by similar representations, for the purpose of explaining motives and intention on the part of the prisoner. R. v. Hope (1889), 17 O.R. 463; R. v. Francis (1874), L.R. 2 C.C.R. 128; Blake v. Albion Ins. Co., 4 C.P.D. 94, 14 Cox 249; R. v. Gordon (1889), 16 Cox 622; and see note to Code sec. 405. Converted into a valuable security.]-The document need not be a valuable security at the time of the signature obtained by the false pretence, and the decisions in R. v. Brady, 26 U.C.Q.B. 13, and R. v. Rymal, 17 O.R. 227, no longer apply. R. v. Burke (1893), 24 O.R. 64. inclose 407. Every one is guilty of an indictable offence and liable Falsely preto three years' imprisonment who, wrongfully and with wilful tending to falsehood, pretends or alleges that he inclosed and sent, or money in caused to be inclosed and sent, in any post letter any money, letter. valuable security or chattel, which in fact he did not so inclose and send or cause to be inclosed and sent therein. 55-56 V., c. 29, s. 361. It is not necessary to allege, in any indictment against any person for wrongfully and wilfully pretending or alleging that he inclosed and sent, or caused to be inclosed and sent, in any post letter, any money, valuable security or chattel, or to prove on the trial, that the act was done with intent to defraud. Code sec. 846. Personation. 408. Every one is guilty of an indictable offence and liable Offence. to fourteen years' imprisonment, who, with intent fraudulently Penalty. to obtain any property, personates any person, living or dead, or the administrator, wife, widow, next of kin or relation of any person. 55-56 V., c. 29, s. 456. Form of indictment.]-That A. on and deceitfully did personate one B. with intent fraudulently to obtain trary to the form of the Criminal Code sec. 408. Evidence.]-Although the fund, to obtain which the personation takes place, has in fact been previously paid to the party entitled there may be a conviction of the personator endeavouring to obtain payment. R. v. Cramp (1817), R. & R. 324. See also the definition of "property" in sec. 2. But it would appear doubtful whether a conviction could be supported for personation in respect of a supposed property or fund which had never existed. Cf. R. v. Pringle (1840), 2 Mood. C.C. 127, 9 C. & P. 408. The intent must be "fraudulently to obtain" the property, and it would seem doubtful whether a personation at the instance of the personated party would be included. Under the English Army Prize-Money Act, 2 & 3 Wm. IV., ch. 53, sec. 49, it was declared an offence to knowingly and willingly personate or falsely assume the name or character of a soldier in order to receive prize-money, and it was held that it was no defence that the prisoner was authorized by the soldier to personate him or that the 22 CRIM. CODE. |