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Where goods are obtained on the faith of the buyer's cheque given in payment therefor, a charge of false pretence of an existing or present fact, as distinguished from a future event, is sustainable, although there may have been funds in the bank to the credit of the drawer at the precise time of delivery of the cheque or of the receipt of the goods, if it be shewn that the drawer issued other cheques at about the same time, the payment of which had been planned to so reduce the fund that the ch que in question would be dishonoured and that the diawer had no credit arrangements with the bank for an overdraft. R. v. Garten, 22 Can. Cr. Cas. 21, 13 D.L.R. 642.
A charge of obtaining goods by false pretences through the giving in payment by his agent of a worthless cheque against the principal's account will lie against the principal if it be shewn that the latter deliberately planned that the cheque should not be paid for lack of funds at his credit in the bank and had re-sold the goods and applied the proceeds to his own use, and this whether or not the agent was aware of the fraud. R. v. Garten (1913), 22 Can. Cr. Cas. 21, 29 O.L.R. 56, 13 D.L.R. 642; R. v. Garrett, 6 Cox C.C. 260; R. v. Hazelton, L.R. 2 C.C.R. 134, 13 Cox C.C. 1.
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. R. v. Richard, 11 Can. Cr. Cas. 279.
False pretences may be founded on the false idea conveyed fraudulently by the accused; it is not requisite that the false pretence should be made in express words. R. v. Holderman, 23 Can. Cr. Cas. 369, 19 D.L.R. 748.
A person may be convicted of obtaining the return to himself of his own promissory notes from the payee if such return is obtained under false pretences, and it is not a ground of defence that the notes were overdue when so obtained. Abeles y. The King (1915), 24 Can. Cr. Cas. 308, 24 Que. K.B. 260.
In Stephen's Digest of the Criminal Law, p. 161, it is said:
"The words, 'Whosoever shall, by any false pretence, obtain, from any other person, any chattel, and with intent to defraud, seem simple enough, but they are obviously open to an interpretation which would make any dishonest breach of contract criminal. A man who buys goods, which he does not intend to pay for, may be said to obtain them by a false pretence of his ability and intention to pay. The Courts, however, soon held that this was not the meaning of the statute, and that, in order to come within it, a false pretence must relate to some existing fact. A mere lie, told with intent to defraud, and having reference to the future, is not treated as a crime. A lie, alleging the existence of some fact which does not exist, is regarded as a crime, if property is obtained by it."
In Alderson v. Maddison, 5 Ex. D. 303, Stephen, J., said, and Lord Selborne referred to it, on the appeal, with approval:
“To say, 'I have cancelled the bond,' when you have not, is to tell an untruth. To say: 'I intend to cancel the bond' is to make a statement as to a present revocable intention. If a person chooses to act on such a representation, without having it reduced to the form of a binding contract, he knows, or ought to know, that he takes his chance of the promisor changing his mind, and therefore he is in no worse position, if the statement is false when it is made, i.e., if the intention is not really entertained, than if it is true when it is made, i.e., if the intention exists, and the person making the statement intends to revoke it, if he pleases.'
Where a defendant hired a bicycle, of the value of $20, representing that he wished to use it to go to L., for the purpose of visiting his sister, and, instead of returning the bicycle, sold it to C.:-Held, that evidence which shewed these facts, was not sufficient to support a conviction for having "unlawfully, and by false pretences obtained from X. one bicycle, of the value of $20, the prosecutor not having been induced and not intending to part with his right of property in the goods, but merely with the possession of them, and there being no representation as to a present or past matter of fact. Rex v.
Rer v. Nowe, 36 N.S.R. 531, 8 Can. Cr. Cas. 441. But see Code sec. 347 as to the offence of theft by conversion of the property. Tremeear's Criminal Code, sec. 347; R. v. Kelly, 27 Can Cr. Cas. 94, 140 and 282, 34 D.L.R. 311.
A person who does not otherwise make a false representation himself but who is present when it is made, knows it to be false, and gets part of a sum of money obtained by such false pretence, is guilty of obtaining such sum of money by false pretences. The Queen v. Cadden, 4 Terr. L.R. 304, 5 Can. Cr. Cas. 45.
In order to establish the offence of obtaining money by false pretences it is necessary to prove what was laid down by Buckley, J., in Re London and Globe Finance Corporation, (1903] 1 Ch. 728. He said: "To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury.” R. v. Bennett (1913), 9 Cr. App. R. 146 at 154.
On an indictment for obtaining money by false pretences it is essential that the jury should understand that there should be no conviction without an intent to defraud, and, unless such intent is clear from the facts, they should be directed on the point; they should also be directed that the obtaining must be due to the false pretense alleged. R. v. Ferguson, 8 Cr. App. R.. 113; R. v. Boyd, 4 Can. Cr. Cas. 219; R. v. Brady, 26 U.C.Q.B. 13.
But where the statement relied upon and shown to be false could not have been made with any other object than that of defrauding the prosecutor, it is not reversible error that the jury was not instructed specially on the question of intent. Rex v. Carr (1916), 12 Cr. App. R. 140.
An intent to defraud may be inferred from the wilful use of a forged instrument to support a genuine claim. Rex v. Hopley, 11 Cr. App. R. 248.
In Rymal's case, 17 Ont. R. 227, the defendant, by untrue representations, made with knowledge that they were untrue, induced the prosecutor to sign a contract to pay $240 for seed wheat. The defendant also represented that he was the agent of H. whose name appeared in the contract. H. afterwards called upon the prosecutor and procured him to sign and deliver to him a promissory note in his H's favour for the $240. The contract did not provide for giving of a note, and when the representations were made the giving a note was not mentioned. The prosecutor, however, swore that he gave the note because he had entered into contract. The defendant was indicted for that he, by false pretences, fraudulently induced the prosecutor to write his name upon a paper so that it might be afterwards dealt with as a valuable security; and upon a second count for, by false pretences, procuring the prosecutor to deliver to H a certain valuable security --Held, upon a case reserved that the charge of false pretences can be sustained as well where the money is obtained or the note procured to be given through the medium of a contract, as when obtained and procured without a contract; and the fact that the prosecutor gave a note instead of the money, by agreement with H. did not relieve the prisoner from the consequences of his fraud; the giving of the note was the direct result of the fraud by which the contract had been procured; and the defendant was properly convicted on the first count as being guilty of an offence under R.S.C. ch. 164, sec. 78; Regina v. Rymal, 17 O.R. 227.
In Regina v. Hope, 17 Ont. R. 463, the defendant was indicted in the first count of the indictment for obtaining from one H. a promissory note with intent to defraud, and in the second count with inducing H. to make the said note, with like intent. The evidence shewed that on May 4th, 1887, the defendant's agent called on H. and obtained from him an order addressed to defendant to deliver to H. at R. station 30 bushels of Blue Mountain Improved Seneca Falls Wheat, which H. was to put out on shares, and to pay defendant $240 when delivered, and to equally divide the produce thereof with the holder of the order, after deducting the said amount. On 23rd May defendant called, produced the order, and by false and fraudulent representations as to the quality of the wheat and his having full control of it, its growth and yielding qualities, and that a note defendant requested him to sign was not negotiable, induced H. to sign the note. Evidence was received, under objection, of similar frauds on others shewing that the defendant was at the time engaged in practicing a series of systematic frauds on the community. The defendant was found guilty and convicted:Held, on a case reserved, that the conviction should be affirmed on the second count, as the evidence shewed that the note was signed by H., not merely to secure the carrying out of the contract contained in the order, but on the faith of the representations made; and it was immaterial that a note was taken when the order called for cash; and, also, that the evidence objected to was properly receivable. R. v. Hope, 17 Ont. R. 463.
The defendant was foreman of works on roads, and certified to the inspector A. that certain persons had worked under him and were entitled to pay. He also produced orders for this pay purporting to be signed by those persons, but which in fact were not genuine. The inspector A. delivered the money to D. his agent, with instructions to pay it to the defendant if satisfied of the genuineness of the orders. On an indictment for obtaining money under false pretences from D. the defendant was found guilty, and the conviction was upheld on a case reserved. Regina v. Cameron, 23 N.S.R. 150.
There may be an intent to defraud although the prosecutor got something which was of real value for his money. Where money is obtained by pretences that are false, there is, primâ facie, an intent to defraud, although this presumption may by displaced. R. v. Hammerson (1914), 10 Cr. App. R. 121.
In a New Brunswick case, the prisoner wrote to the prosecutor to induce him to buy counterfeit bank notes. The prosecutor, in order to entrap the prisoner and bring him to justice, pretended to assent to the scheme, arranging a meeting place of which he informed the police, and had them placed in position to arrest the prisoner at a signal from the prosecutor. At such meeting the prisoner produced a box which he said contained counterfeit bank notes, which he agreed to sell the prosecutor on payment of a sum agreed upon. The prisoner gave a box which he pretended to be the one containing the notes to the prosecutor, who then gave the prisoner $50 and a watch as security for the balance which he agreed to pay.
The prosecutor immediately gave the signal to the police and seized the prisoner and held him until they arrested him and took the money and watch from him. On examining the box given the prosecutor it was ascertained that he had not given him the one containing the notes as he pretended, but a similar one containing waste paper. The box containing the notes was found on the prisoner's person. It was clear and undisputed that the motive of the prosecutor in parting with the possession of the money and the watch, as he had done, was to entrap the prisoner. The prisoner was found guilty of obtaining the money and watch of the prosecutor by false pretence of giving him the counterfeit notes, which he did not give.
On a case reserved for the opinion of the Court the minority opinion given by Allen, C.J., and Palmer, J., was that in order to complete the crime of obtaining property by false pretence, there must not only be the false pretence but an actual parting and intention to part with the property of the person imposed upon by the pretence; that the prosecutor here never intended to part with his property in the money and watch, and that the conviction should be quashed.
They were also of the opinion that as the prosecutor only expected to receive from the prisoner counterfeit notes which were of no value, it was extremely doubtful whether he could be said to have been defrauded because he received worthless goods of another kind. But it was held by the majority of the Court of six Judges that the prisoner was rightly found guilty, and that the conviction should be affirmed. Regina v. Corey, 22 N.B.R. 543.
On a charge of obtaining goods by false pretences by giving a bill of exchange due in seven weeks where some of the averments made were that the accused professed to be a man of financial strength and able in due time to meet the bill, it was held to be proper to admit in evidence for the prosecution the bank account of the accused and proof of the number of cheques on it being dishonoured during the time of the transaction. R. v. Fryer (1912), 7 Cr. App. R. 183.
Upon a trial for false pretences, it is competent, in order to prove intent, to shew that the accused made similar representations about the same time to other persons, and by means of such false representations obtained goods: Wharton, Crim. Law, 8th ed., sec. 1184; and other acts, part of the same system of fraud, may be put in evidence. Reg. v. Francis, 12 Cox C.C. 612, 43 L.J. Mag. Cas. N.S. 97, L.R. 2 C.C. 128; R. v. Wyatt, (1904] 1 K.B. 188; Tremeear's Cr. Code, sec. 404.
If there is evidence of two persons acting together and one assents to a false representation made by the other as an inducement to a contract, such assent may amount to a false pretence by conduct. R. v. Grosvenor (1914), 10 Cr. App. R. 404.
A postmaster transmitted to defendant several post office orders, which defendant in connivance with him presented and got cashed. The orders were fraudulently issued as no moneys had been received by the postmaster for transmission to the defendant, and frauds to a large extent had been thus committed. Defendant was held properly convicted of having obtained these sums with intent to defraud. And, semble, that defendant might also have been properly convicted under another count of indictment charging him with having obtained the money by false pretences. Regina v. Dessauer, 21 U.C.Q.B. 231.
When in an indictment for obtaining by false pretences, one of the pretences alleged was that defendant was carrying on a