E. False Pretenses

LibraryThe Criminal Law of South Carolina (SCBar) (2014 Ed.)

E. False Pretenses

If one obtained possession of property by means of deceit with a fraudulent intent to deprive the owner of the property, he committed larceny by trick. However, if he obtained not only possession of the property but also title, he could not be convicted of larceny because there was no trespassory taking. The statutory offense of false pretenses came into being to plug this gap in the law of theft. It first appeared in England in the mid-eighteenth century. 30 Geo. II, c.24 (1757). LaFave, 1006-07 (5th ed. 2010). It first appeared in South Carolina in 1791, 1 Faust 78, V St. at Large 177. It was first cited in State v. Wilson, 9 S.C.L. (2 Mill) 135 (1818).

1. The Statute and Its Penalties

A person who by false pretense or representation obtains the signature of a person to a written instrument or obtains from another person any chattel, money, valuable security, or other property, real or personal, with intent to cheat and defraud a person of that property is guilty of a:

(1) felony and, upon conviction, must be fined not more than five hundred dollars and imprisoned not more than ten years if the value of the property is ten thousand dollars or more;
(2) felony and, upon conviction, must be fined in the discretion of the court or imprisoned not more than five years if the value of the property is more than two thousand dollars but less than ten thousand dollars;
(3) misdemeanor triable in magistrate's court . . . if the value of the property is two thousand dollars or less. Upon conviction, the person must be fined not more than one thousand dollars, or imprisoned not more than thirty days.

S.C. Code Ann. § 16-13-240 (Supp. 2012). Third or subsequent convictions, regardless of the amount involved, are treated as class E felonies (ten year maximum). S.C. Code Ann. § 16-1-57 (2003). False pretenses is a "serious offense." S.C. Code § 17-25-45(C)(2) (Supp. 2012). See Chapter I.C.7., "Most Serious Offenses" and "Serious Offenses," supra. Prior to January 1, 1994, the effective date of the Crime Classification Act of 1993, the false pretenses statute provided for magistrate's court penalties if the amount in question were $100 or less, and fine of not more than $500 and imprisonment for not more than three years if the amount in question were more than $100.

As evidenced by the law of other jurisdictions (see LaFave, 1012-16 (5th ed. 2010)), it is often difficult to determine whether title or only possession passed in the transaction; this creates the opportunity for some cases to fall between the cracks if improperly brought as the one offense or as the other. South Carolina has a companion statute providing that a person indicted for the misdemeanor of false pretenses is not entitled to an acquittal should the evidence indicate that he had committed larceny instead. S.C. Code Ann. § 16-13-250 (2003). This statute would be of no utility in a false pretenses case involving more than $2,000 because these offenses are all felonies, as of July 1, 1993; prior to that time all false pretenses offenses were misdemeanors.

This statute demonstrates once more the tendency of this jurisdiction to provide overlap between the three primary property offenses in order to preclude a technical avenue of escape from a case of obvious theft. Compare the offenses of larceny and breach of trust discussed in the preceding sections. In Bell v. United States, 462 U.S. 356 (1983), the Court construed a bank theft statute, 18 U.S.C. § 2113(b), broadly enough to include acquiring property by false pretenses even though the statute refers to one who "takes and carries away" the property.

Traditionally, the elements of the offense of false pretenses were that the defendant (1) made a false representation of fact (2) with the intent to defraud (3) by which the victim was deceived and (4) which caused the victim to pass the title to property to the wrongdoer. LaFave, 1006 (5th ed. 2010). The fourth element, concerning passage of title, was repudiated by the Court of Appeals in State v. Dickinson, 339 S.C. 194, 528 S.E.2d 675 (Ct. App. 2000), discussed in subsection 5, Must the Victim Pass Title to the Property to the Wrongdoer?, infra. Each of these elements will be considered in turn.

2. False Representation of Fact

The false representation must relate to a past or present fact. Representative South Carolina cases include the following in meeting this criterion: that the defendant had planted a cotton crop which was to serve as security for a loan from the victim, State v. Haines, 23 S.C. 170 (1885); that a certain amount was still due from a third party on a note given to the victim in exchange for his property, State v. Freeman, 43 S.C. 105, 20 S.E. 974 (1895); and that a horse was sound when the defendant knew that it was virtually blind. State v. Stone, 95 S.C. 390, 79 S.E. 108 (1913). In State v. Jeffcoat, 279...

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