100

the criminal intent. passing other counterfeit money may be proved against him for the same purpose. But evidence of similar offenses is only admissible to prove guilty knowledge, never solely to show that the bill or coin was a counterfeit.' The inference of guilty knowledge which the jury may draw from such evidence may be rebutted. Thus the defendant may bring out facts and circumstances tending to show that he was so drunk as not to know what he was doing;2 he supposed the money was genuine; that it was so, in fact, and may also prove that his belief in the genuineness of the money was founded upon information derived from the most approved sources.3

And the defendant's declarations when

§ 433. Evidence to show that counterfeit money or implements for its manufacture were found in the possession of the accused.The possession of implements or appliances, such as plates and dies adapted or designed for making counterfeit coin or bills, or the possession of the counterfeits, with a knowledge of their spurious character, and with an intent to pass them, is, in many states, a felony by statute. And the finding of tools or machinery for the coining of money, or of spurious coin," in defendant's

session must be proved. People v.
White, 34 Cal. 183, 187; Hutchins v.
State, 13 Ohio 198, 200. See United
States v. Taranto, 74 Fed. 219.

(S.

State v. Antonio, 3 Brev. Car.) 562; Hess v. State, 5 Ohio 5, 9, 22 Am. Dec. 767n; United States v. Provenzano, 171 Fed. 675. Whether he knew the false character of the money in his possession is for the jury. United States v. Stevens, 52 Fed. 120.

Stalker v. State, 9 Conn. 341, 343; United States v. Hinman, 1 Baldw. (U. S.) 292, 26 Fed. Cas. 15370; People v. Thoms, 3 Park. Cr. (N. Y.) 256, 262, 270; State v. Twitty, 2 Hawks (N. Car.) 248, 258; State v. Bridgman, 49 Vt. 202, 210, 24 Am. 124; People v. White, 34 Cal. 183, The counterfeit money found

'The criminal intention of the pos- 189.

8

possession, even subsequently to the act for which he is indicted," may always be proved for the purpose of showing guilty knowledge and criminal intent. But the accused must be allowed to explain his possession, in order to rebut any presumption that may arise against him. His failure to explain how he became possessed of counterfeit money may be proved.10 The possession must be exclusive and actual. The fact that counterfeiter's tools were found in the possession of the wife of the accused is not relevant where he exercised no control over them.11

§ 434. Resemblance to the genuine.-This is a question for the jury,12 and must be proved by evidence that will show an imitation or a resemblance that will deceive persons of ordinary in

must, it seems, be similar in kind to that for uttering which he is on trial. Bluff v. State, 10 Ohio St. 547.

7 Commonwealth v. Price, 10 Gray (Mass.) 472, 476, 71 Am. Dec. 668n; Reg. v. Forster, 6 Cox C. C. 521; Bottomley v. United States, I Story (U. S.) 135, 3 Fed. Cas. 1688; Elliott Evidence, § 2955; 25 Am. St. 387, 389. Defenses in prosecution for counterfeiting, see Elliott Evidence, § 2961.

8

"The object of the testimony is not to convict or accuse him of other crimes, but to establish the fact of such a knowledge, on his part, of the true character of the bill uttered by him, and which is proved to be counterfeit, as will justify the jury in inferring his guilt in the case on trial. And so far as this may be deemed a departure from the technical rules of evidence, it is a departure justified by the peculiar nature of the crime of passing counterfeit money; consisting not in the fact of passing, which may be done by an innocent person, but in the guilty knowledge connected with such passing." Commonwealth v. Bigelow, 8 Met. (Mass.) 235: United State v. Mitchell, Baldw. (U. S.) 366, 26 Fed. Cas. 15787; United

State v. Noble, 5 Cranch C. C. (U.
S.) 371, 27 Fed. Cas. 15895; State v.
Brown, 4 R. I. 528, 70 Am. Dec. 168

'United States v. Burns, 5 McLean (U. S.) 23, 24 Fed. Cas. 14691: United States v. King, 5 McLean (U. S.) 208, 26 Fed. Cas. 15535; United States v. Craig, 4 Wash. C. C. (U. S.) 729, 25 Fed. Cas. 14883.

10 United States v. Kenneally, 5 Biss. (U. S.) 122, 26 Fed. Cas. 15522.

" People v. Thoms, 3 Park. Cr. (N. Y.) 256, 262. It may be proved that the prisoner attempted to utter the note at different times and places, where it had been suspected and challenged as false, that he had declared it to be genuine and true; or that he attempted to secrete himself, or to destroy a note found on him. State v. Smith, 5 Day (Conn.) 175, 178, 5 Am. Dec. 132. A person who, in concert with the police, buys counterfeit money of the accused for the purpose of entrapping him, is not an accomplice, and the rule requiring corroboration does not apply to him. People v. Farrell, 30 Cal. 316.

12 United States v. Stevens, 52 Fed

I20.

telligence and powers of observation.13 Expert evidence is admissible to prove the genuineness of the alleged counterfeit," though it seems that experience acquired in judging bank notes when receiving, handling and paying them out does not necessarily qualify a witness as an expert upon the genuineness of the signatures.15 The money which it is alleged has been counterfeited ought to be produced in court. Evidence that bills or coin were counterfeit is not ordinarily received unless this is done, though if the money has been lost or destroyed secondary evidence may be received to show what sort of money it was.1 It is not usually necessary in the case of the counterfeiting of bank bills to produce an officer of the bank to prove that the signatures of the bank officers to the bills are forged or to prove that the bills are counterfeit.17

§ 435. False pretenses.-At common law defrauding a person of money or of other property by mere lying was no offense. It was necessary to prove that the fraud was accomplished by means of some false token1s or writing, or by means of false weights or measures, or that there was a conspiracy to defraud. In other words, besides the intention to cheat, it must be shown that the means employed were such as would deceive persons who used due diligence and precautions.19

"State v. McKenzie, 42 Me. 392, 394: People v. Osmer, 4 Park. Cr. (N. Y.) 242, 244. See ante, § 430. "United States v. Keen, 1 McLean (U. S.) 429, 26 Fed. Cas. 15510; Hess v. State, 5 Ohio 5, 7, 22 Am. Dec. 767n; Keating v. People, 160 Ill. 480, 43 N. E. 724; Elliott Evidence, § 2959. State v. Allen, 1 Hawks (N. Car.) 6, 10, 9 Am. Dec. 616n. ante, § 429.

13

See

"State v. Orsborn, 1 Root (Conn.) 152: State v. Phelps, 2 Root (Conn.) 87; Armitage v. State, 13 Ind. 441; State v. Potts, 9 N. J. L. 26, 17 Am.

Dec. 449.

State v. Hooper, 2 Bailey (S. Car.) 37; Martin v. Commonwealth,

2 Leigh (Va.) 745; Commonwealth v. Carey, 2 Pick. (Mass.) 47; Commonwealth V. Taylor, 5 Cush. (Mass.) 605; Sarles, In re, 4 City H. Rec. (N. Y.) 107.

18 Elliott Evidence, § 2977.

19

Commonwealth V. Warren, 6 Mass. 72, 73; People v. Johnson, 12 Johns. (N. Y.) 292, 293; People v. Babcock, 7 Johns. (N. Y.) 201, 204, 5 Am. Dec. 256; Rex v. Lara, 6 T. R. 565; State v. Patillo, 4 Hawks (N. Car.) 348; State v. Stroll, I Rich. (S. Car.) 244; State v. Justice, 2 Dev. (N. Car.) 199, 201; Hughes v. People, 223 Ill. 417, 79 N. E. 137; Commonwealth v. Burton, 183 Mass. 461, 67 N. E. 419; Elliott Evidence,

Four essential facts must be proved to constitute the crime of false pretenses. First, the intent to defraud some particular person or people generally. Second, an actual fraud committed. Third, the false pretense, and fourth, that the fraud resulted from the employment of the false pretense.20 But this rule that to obtain money or property by mere lying did not constitute a crime, was found inadequate as soon as the employment of commercial credit became general in consequence of the increase of commerce, domestic and foreign. Hence by statute, 30 George II., ch. 24, it was enacted that "All persons who knowingly and designedly, by false pretense or pretenses, shall obtain from any person or persons money, goods, wares or merchandises with intent to cheat or defraud any person or persons of the same * shall be deemed offenders against law and the public peace." The crime of false pretenses is distinct from larceny in the following particulars: If the evidence shows that the trick or fraud practiced resulted only in inducing the owner of the property to part with the naked possession of the same, he intending to retain in himself his right and title as owner, the taking will be larceny only; but if the owner intended not only to part with possession but with the title or right of property in the goods, the offense is false pretenses.2

21

§ 2978. Evidence to prove the false pretense, see Elliott Evidence, § 2980; 10 L. R. A. 307, note.

20

Commonwealth v. Drew, 19 Pick. (Mass.) 179; State v. Clark, 46 Kan. 65, 66, 26 Pac. 481; People v. Jordan, 66 Cal. 10, 12, 4 Pac. 773, 56 Am. 73; People v. Wakely, 62 Mich. 297, 303, 28 N. W. 871; State v. Bingham, 51 Wash. 616, 99 Pac. 735; Morris v. State, 54 Fla. 80, 45 So. 456; Young v. State, 156 Ala. 670, 46 So. 580; Ryan v. State, 104 Ga. 78, 30 S. E. 678; Griffin v. State, 3 Ga. App. 476, 60 S. E. 277; State v. Wedbee (N. C., 1910), 67 S. E. 60; People v. Pointdexter, 243 Ill. 68, 90 N. E. 261. To constitute the offense of obtaining property by false pretenses there must be an intent to defraud, there must be an actual fraud committed, false pre

22

tenses must be used for the purpose of perpetrating the fraud, and the fraud must be accomplished by means of the false pretenses made use of for that purpose. Clawson v. State, 129 Wis. 650, 109 N. W. 578, 116 Am. St. 972.

21 Which obviously in modern times at least would include a corporation. State v. Briscoe (Del.), 67 Atl. 1545 State v. Harnett (Del., 1909), 74 Atl. 82.

22

2 Russell on Crimes (9th Am. Ed.) 618; Smith v. People, 53 N. Y. 111, 114, 13 Am. 474; Lewer v. Commonwealth, 15 S. & R. (Pa.) 93; Cline v. State, 43 Tex. 494, 497; Miller v. Commonwealth, 78 Ky. 15, 19, 39 Am. 194; State v. Anderson, 47 Iowa 142, 145; People v. Rae, 66 Cal. 423, 425, 6 Pac. I, 56 Am. 102; Zink v. People,

If the accused, having obtained legal possession of the goods with the owner's consent, and, as a bailee or trustee, afterwards converts them to his own use he is guilty of embezzlement only. To constitute the crime of false pretenses it must be proved that the accused, at the time of the taking of the property, was acting dishonestly and with a fraudulent intent and that he then and there, by false pretenses, induced the owner to part with both the title and the possession and not with the possession alone.2 23

24

§ 436. Evidence to show the intention of the owner.-It will thus be seen that the intention of the owner as respects his title to the property is of the greatest importance, for it is upon his intention that the character of the crime depends. He may always testify to the intention with which he transferred the property to the accused. He may relate in evidence at length the circumstances under which the transfer was made, including everything that was said or done, either by him or by the accused, as a part of the res gesta; and from these circumstances the jury may infer that he consented to divest himself of his title in the property upon the strength of the false representations."

25

$437. The intent to defraud.-An intent to defraud must always be proved beyond a reasonable doubt. The intent is always a

77 N. Y. 114, 33 Am. 589; Canter v. State, 7 Lea (Tenn.) 349, 350; People v. Martin, 102 Cal. 558, 36 Pac. 952; Jones v. State, 93 Ga. 547, 553, 19 S. E. 250; Commonwealth v. Call, 21 Pick. (Mass.) 515.

23 Commonwealth V. Barry, 124 Mass. 325, 327; State v. Keyes, 196 Mo. 136, 93 S. W. 801, 6 L. R. A. (N. S.) 3690; Day v. Commonwealth (Ky.), 110 S. W. 417, 33 Ky. L. 560; State v. Dickinson, 21 Mont. 595, 55 Pac. 539; Beckwith v. Galice Mines Co., 50 Ore. 542, 93 Pac. 453, 16 L.

Ky. 510, 513, 18 S. W. 358, 775, 13 Ky. L. 929, 36 Am. St. 609. Cf. State v. Vaughan, 1 Bay (S. Car.) 282, 283; State v. Benson, 110 Mo. 18, 21, 19 S. W. 213; State v. Bingham, 51 Wash. 616, 99 Pac. 735; People v. Snyder, 110 App. Div. (N. Y.) 699, 97 N. Y. S. 469.

23

Sharp v. State, 53 N. J. L. 511, 513, 21 Atl. 1026; Carlisle v. State, 76 Ala. 75; Todd v. State, 31 Ind. 514, 516; State v. Fields, 118 Ind. 491, 492, 21 N. E. 252; Bowler v. State, 41 Miss. 570, 578; People v. Kendall, 25 Wend. (N. Y.) 399, 401,

R. A. (N. S.) 723. 24 Commonwealth V. Drew, 153 37 Am. Dec. 240; Commonwealth v. Mass. 588, 595, 27 N. E. 593.

Devlin, 141 Mass. 423, 430, 6 N. E.

* Commonwealth v. Schwartz, 92 64; People v. Baker, 96 N. Y. 340,