False pretenses or obtaining property by false pretenses is a common law crime in the United States, where its statutory forms handle situations not covered by the definition of larceny. In English law, these are deception offences defined in the Theft Act 1968 and Theft Act 1978.
[top]The law in the United States
This offence consists of (1) obtaining title (2) to personal property of another (3) by an intentional false statement of past or existing fact (4) with intent to defraud the other.
Under common law, false pretense is defined as a representation of a present or past fact, which the thief knows to be false, and which he intends will and does cause the victim to pass title of his property. That is, false pretense is the acquisition of title from a victim by fraud or misrepresentation of a material past or present fact.
Note that it is essential that the victim of the false pretenses must actually be deceived by the misrepresentation, and the fact that the victim is deceived must be a major (if not the only) factor of the victim granting title to the defendant. Simply making a false promise or statement is not sufficient.
The misrepresentation has to be affirmative. A failure to disclose a fact does not fit this misrepresentation in common law, unless there is a fiduciary duty between the thief and victim. Courts have also held that the representation be of a present or past fact. The policy here is that to rely on a future fact is more foolish. People who deceive using present facts are more dangerous than those who deceive by false promises. At trial, the prosecution must show not only that the misrepresentation was false, but that the thief knew of the falsity. Additionally, the thief must intend to defraud. Moreover, opinion and puffing are not considered misrepresentation as they color the facts but do not misrepresent them.
Additionally, title must pass between parties. So, deceiving a third party to pass property for a specific purpose, courts have held that this is larceny by trick in that larceny by trick simply uses a deception to deprive the owner of possession, not title.
False pretences as a concept in the criminal law is no longer used in English law. It used to refer to the means whereby the defendant obtained any chattel, money or valuable security from any other person with intent to defraud. It used to be an indictable misdemeanour under the Larceny Act 1861 as amended by the Larceny Act 1916. The modern concept is a deception and it is used as the common basis of the actus reus (the Latin for "guilty act") in the deception offences under the Theft Act 1968 and in the Theft Act 1978.
United States statutes on this subject are mainly copied from the English statutes, and the courts there in a general way follow the English interpretations. The statutes of each state must be consulted. There is no Federal statute, though there are Federal laws providing penalties for false personation of the lawful owner of public stocks, &c., or of persons entitled to pensions, prize money, &c. (U.S. Rev. Stats. 5435), or the false making of any order purporting to be a money order (Id. 5463).
In Arizona, obtaining money or property by falsely personating another is punishable as for larceny (Penal Code, 1901, 479). Obtaining credit by false pretences as to wealth and mercantile character is punishable by six months imprisonment and a fine not exceeding three times the value of the money or property obtained (id. 481).
In Illinois, whoever by any false representation or writing signed by him, of his own respectability, wealth or mercantile correspondence or connections, obtain; credit and thereby defrauds any person of money, goods, chattels or any valuable thing, or who procures another to make a false report of his honesty, wealth, &c., shall return the money, goods, &c., and be fined and imprisoned for a term not exceeding one year (Crim. Code, 1903, ch. xxxviii. ~ 96, 97). Obtaining money or property by bogus cheques, the confidence game (Dorr v. People, 1907, 228, Ill. 216), or three card monte, sleight of hand, fortune-telling, &c., is punishable by imprisonment for from one to ten years (Id. ~ 98, 100). Obtaining goods from warehouse, mill or wharf by fraudulent receipt wrongly stating amount of goods deposited by imprisonment for not less than one nor more than ten years (Id. 124). Fraudulent use of railroad passes is a misdemeanour (Id. 12 5a).
[top]Massachusetts
In Massachusetts it is simple larceny to obtain by false pretences the money or personal chattel of another (Rev. Laws, 1902, ch. ccviii. 26). Obtaining by a false pretence with intent to defraud the signature of a person to a written instrument, the false making whereof would be forgery, is punishable by imprisonment in a state prison or by fine (Id. 27).
In New York, obtaining property by false pretenses, felonious breach of trust and embezzlement are included in the term larceny (Penal Code, 528; Paul v. Dumar, 106 N.Y. 508; People v. Tattlekan, 2907, 104 N.Y. Suppl. 805), but the methods of proof required to establish each crime remain as before the code. Obtaining lodging and food on credit at hotel or lodging house with intent to defraud is a misdemeanour (Pen. Code, 382). Purchase of property by false pretences as to persons means or ability to pay is not criminal when in writing signed by the party to be charged (Pen. Code, 544).
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