In Wasservogle, the court stated, at page 176: "[T]here was testimony tending to establish all of [the] four requisites, and therefore... the judgment cannot be reversed for want of evidence."Summary of this case from People v. Mason
Appeal from a judgment of the Superior Court of Santa Clara County, from an order denying a new trial, and from an order denying a motion in arrest of judgment.
W. H. Layson, for Appellant.
Attorney-General Johnson, for Respondent.
JUDGES: In Bank. Belcher, C. C. Foote, C., and Hayne, C., concurred.
The defendant was charged with obtaining money under false pretenses, and convicted. He moved for a new trial, and has appealed from the judgment and order denying his motion.
1. The demurrer to the information was properly overruled. The offense is charged in the language of section 532 of the Penal Code, and the false pretense is particularly set forth. It is true that, to come within the statute, a representation must be of some fact, past or present; but the statement of defendant that he had credit with the firm named for the amount of the draft, and that the firm would honor the draft, when he knew that he had no credit with the firm, and that the draft would not be honored or paid, was sufficient.
Among the definitions of the word "credit" are the following: "Credit is confidence or trust reposed in one's ability to pay what he may promise." (Abbott's Law Dict.) "The ability to borrow, on the opinion conceived by the lender that he will be repaid." (Bouvier's Law Dict.) "Credit is the capacity of being trusted." (Dry Dock Bank v. Am. Life Ins. and Trust Co ., 3 N.Y. 356.) And a false pretense has been defined to be "a representation of some fact or circumstance calculated to mislead, which is not true." (Commonwealth v. Drew, 19 Pick. 184.) After quoting this definition, Mr. Bishop says a fuller and practically better one would be: "A false pretense is such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the person to whom it is made to part with something of value." (2 Bishop on Criminal Law, sec. 415; and see People v. Jordan , 66 Cal. 10; 56 Am. Rep. 73.)
The claim that [19 P. 271] "credit" implies only a future, and not a present fact, cannot be supported.
2. The evidence was sufficient to support the verdict, and the testimony that defendant before this transaction had drawn other drafts on the same firm which had not been paid was admissible, as tending to show that he had no credit with the firm, and must have known that the draft in question would not be honored. The pretense need not be in words; that is, it was not necessary for the defendant to say in so many words that he had funds to his credit with the New York firm. The pretense may be gathered from the acts and conduct of a party. It has been held that the drawing and passing a check on a banker with whom the drawer had no account, and which he knew would not be paid, was a false pretense within the statute. (Rex v. Jackson, 3 Camp. 370; 2 Bishop on Criminal Law, sec. 430; People v. Donaldson , 70 Cal. 116.)
It is true, as claimed for appellant, that to constitute the offense charged, four things must concur, and four distinct averments must be proved:
" 1. There must be an intent to defraud;
" 2. There must be actual fraud committed;
" 3. False pretenses must be used for the purpose of perpetrating the fraud; and,
" 4. The fraud must be accomplished by means of the false pretenses made use of for the purpose; viz., they must be the cause which induced the owner to part with his property." (Commonwealth v. Drew, supra .)
We think there was testimony tending to establish all of these four requisites, and therefore that the judgment cannot be reversed for want of evidence.
3. We see no material error in the charge of the court, or in the instructions given and refused. The court used the word "funds," and in this it is claimed that it went outside of the record. But we think the word "credit," as used in the information, includes "funds."
Looking at the whole record, we find no reason for a reversal of the judgment, and therefore advise that it be affirmed.
The Court. -- For the reasons given in the foregoing opinion, the judgment and order are affirmed.