§ 32.10 FALSE PRETENSES

• Jurisdiction: United States

§ 32.10. False Pretenses

[A] In General

The offense of "obtaining property by false pretenses" or, simply, "false pretenses," is statutory in nature. Originally, it was a misdemeanor in England. In the United States, it is now a felony or misdemeanor, depending on the value of the property obtained.

The original false pretenses statute was enacted in England in 1757.¹⁰² According to that statute, any person who "knowingly and designedly" by false pretenses obtains title to "money, goods, wares or merchandizes" from another person "with the intent to cheat or defraud" the other person is guilty of false pretenses. A "false pretense" is a false representation of an existing fact.¹⁰³

[B] Distinguishing False Pretenses from Larceny and Embezzlement

Larceny, embezzlement, and false pretenses may occur as the result of fraud. False pretenses and larceny-by-trick are alike in one critical way: Fraud is used to obtain the property. In contrast, an embezzler obtains property lawfully, but thereafter fraudulently converts it to his own use. The primary difference between larceny and false pretenses is that a thief who uses trickery to secure title, and not simply possession, of property, is guilty of false pretenses; one who merely secures possession through fraud is guilty of larceny-by-trick.¹⁰⁴

The line between larceny-by-trick and false pretenses is sometimes clear. For example, in Pear's Case,¹⁰⁵ P fraudulently rented a horse from V, intending from the outset to steal the animal. Clearly, this was not false pretenses: The existence of the rental arrangement demonstrates that title to the horse did not pass with possession.

Often the line between the two offenses is thin. Frequently, a court will rule that, although the thief obtained possession of property through fraud, title to it did not transfer because some condition had not yet been satisfied. For example, in one case,¹⁰⁶ H drove his car to V's gas station and asked the operator to fill his tank. H did not intend to pay for the gasoline. After the tank was filled, H drove away without paying. The court determined that H committed larceny-by-trick rather than false pretenses because V did not intend title to the gas to pass until payment was made. In contrast, if H had paid for the gasoline with counterfeit money, title would have passed, and the offense would have been false pretenses.

One who provides money to another for a special purpose does not transfer title to it until that purpose is met. For example, in Graham v. United States,¹⁰⁷ G, a lawyer, obtained money from V, his client, for the stated purpose of bribing X, a police officer, for V's benefit. Instead, G converted the cash to his own use. The court held that G was guilty of larceny, not false pretenses: V did not intend to part with title to the money until it was delivered to X as a bribe.

[C] Elements of the Offense

[1] False...