Commonwealth v. Johnson

Mr. Justice MAXEY filed a dissenting opinion.

Argued March 28, 1933. Defendant was charged in an indictment with attempting to obtain money by false pretenses. He was convicted and sentenced. On appeal to the Superior Court, judgment against him was arrested and he was discharged. Because of the fundamental questions of criminal law which the record presents, we allowed an appeal by the Commonwealth. These questions are: (1) Is the crime of attempting to obtain money by false pretenses committed where the prosecutor knows that the pretenses are false? (2) Can a conviction be sustained where the defendant receives a part of the money which he sought to obtain by false pretense; does this make the crime a completed one instead of an attempt?

Defendant is a regularly licensed practicing physician. The prosecutor is a county detective of Allegheny County. It is apparent that defendant had been practicing his profession in a way that attracted the attention of the police authorities. Drexler, the prosecutor, and another called upon defendant and represented to him that they had a sister (which was not the fact) who was failing in health. Defendant told the prosecutor to write her name on a piece of paper. The prosecutor accordingly wrote the fictitious name. Defendant placed this paper on the knob of what was apparently an electrical instrument and rubbed it. Having done so he informed the prosecutor that he found his sister had been suffering from sarcoma. He rubbed again several times and then informed his visitors that the sister had a blood clot on the brain, that she had beef worms, that she was anemic and that her gall duct was in good condition. The prosecutor then stated that he would bring his sister in to see defendant, who replied that he did not think it necessary, that he had patients he had never seen who were taking his treatment and being cured, that he had just received a telegram from Europe informing him that his treatments had helped a woman to give birth to a child and that he had patients in England, France, South America, India and Africa, and practically all over the United States. Defendant asked from his visitors for treating their supposititious sister a fee of $65 a month for a period of from nine to twelve months if they were financially able to pay it, and if not, of $41.60 a month. Thereupon the prosecutor and his ally departed promising to return, which they did in a few days, told defendant they had decided to take the $65 treatment, and paid him on account $25 in marked bills, promising the remainder later. They then left defendant's office and shortly thereafter two other county detectives entered and arrested him, finding the marked bills in his possession.

It was testified that the instrument in the defendant's office on which he had placed the handwriting and which he had rubbed for the apparent purpose of diagnosing the supposed sister's ailments was found on investigation not to be wired to any electric current.

Textbook authorities are apparently in unison on the proposition that the completed crime of false pretense is not established unless it appears that the person alleged to have been defrauded believed the false representations to be true. Thus in Wharton's Criminal Law, volume 2, 11th edition, section 1447, page 1629, it is said: "It is an essential ingredient of the offense that the party alleged to have been defrauded should have believed the false representations to be true, for if he knew them to be false, he cannot claim that he was influenced by them." In Clark's Handbook of Criminal Law, 3d edition, page 368, it is stated: "Not only must there be a false pretense made with intent to defraud, but the prosecutor must part with the property relying on the pretense. If, therefore, he knows that the pretense is false when he parts with the property, the offense is not committed." In 25 C. J., page 589, the completed crime is thus defined: "A criminal false pretense may be defined to be the false representation of an existing fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and does, in fact, deceive, and by means of which one person obtains value from another without compensation."

It is argued in the defendant's behalf that, as he could not have been legally convicted of the consummated offense had he done everything he intended to do, because the prosecutor was not deceived, he cannot be lawfully convicted of the attempt. To sustain this position, we are referred to 16 C. J. 117; People v. Jaffee, 185 N.Y. 497, 9 L.R.A. (N.S.) 263, 7 Am. Cas. 348; 1 Bishop's Criminal Law, 7th edition, section 747.

We assume that there are many instances in which there can be no conviction of an attempt to commit a crime, where, if the project had been fully carried out, no crime would have been consummated, but we think this rule does not apply to attempts to commit the crime of obtaining property by false pretense where the prosecutor was not deceived, because he knew when the attempt was made that the representation was false. The law on the subject, with authorities to sustain the text, is thus summed up in 25 C. J., page 614, section 46: "An attempt to commit the crime of obtaining money by false pretenses or the like is an indictable offense. Such an attempt consists in: (1) An intent to obtain by the false pretense, or the like; (2) the doing of some act, toward obtaining the property by means of the false pretense, or the like; (3) the failure so to obtain the property. It is not necessary that the prosecutor should have relied upon the false pretenses and parted with his property. But on the contrary, if property is actually obtained in consequence of the prosecutor's reliance upon the false pretenses, the offense is complete and an indictment for an attempt will not lie. . . . . . If accused with the requisite intent has done some act toward obtaining the property, it is none the less an attempt because for some reason unknown to him he could not have completed the crime, or because the falsity of his representations is discovered before he has an opportunity to proceed further in his endeavor to obtain the property." The text is supported by the following illustrations: (1) A person falsely pretended to a pawnbroker that a chain was silver. The pawnbroker, without relying on the prisoner's statement, but upon his own examination and test, lent him ten shillings on the chain which was made of a composition worth about a farthing an ounce. It was held that while not guilty of the substantial offense, he committed the offense of attempting to obtain money by false pretenses: Reg. v. Roebuck, 7 Cox's Criminal Cases 126. (2) Where the accused called up a store and fraudulently arranged for the delivery of goods to herself in the name of a credit customer, she was guilty of an attempt to commit larceny by false pretenses, although the employees of the store were not deceived, and made arrangements for the apprehension of accused when the delivery should take place, the attempt to deceive by the telephone order having been as much a part of the offense as was the attempted taking of the goods on delivery, which failed: State v. Peterson, 109 Wn. 25,186 P. 264. (3) A man went into a pawnbroker's shop and laid down eleven thimbles on the counter, saying, "I want five shillings on them." The pawnbroker's assistant asked the man if they were silver and he said they were. The assistant tested them and found that they were not silver, and in consequence did not give any money, but sent for a policeman and gave the man into custody. It was held that this was an attempt to commit the offense of obtaining money under false pretenses: Reg. v. Ball, 1 C. M. 249, 41 E. C. L. 140.

The classic instance of an attempt to commit a crime which is in fact impossible, due to some extraneous circumstances beyond the control or knowledge of the defendant, is that of the pickpocket who seeks to pick the pocket of an impecunious person. It was first held in England that no conviction for an attempt could lie under such circumstances: Reg. v. Collins, 169 Eng. Reprints 1477. This case was overruled in Reg. v. Brown, 16 Cox's Criminal Cases 715, and Reg. v. Ring, 17 Cox's Criminal Cases 491.

In Rogers v. Com., 5 S. R. 462, it was held that an indictment for an assault with the intent to steal from the pocket was sufficient, although it failed to state that there was any money in the pocket. In other states the ruling has been that a conviction for an attempt to commit larceny will lie where there is no money in the pocket of the prosecutor: Com. v. McDonald, 59 Mass. 365; State v. Wilson,30 Conn. 500; People v. Jones, 46 Mich. 441; and for an attempt at burglary where there was no money in the house: State v. Beal,37 Ohio 108; for an attempt to steal from a cash register though there is no money in the drawer: Clark v. State (Tenn.)8 S.W. 145. On the contrary, it has been held there can be no attempt to commit the crime of receiving stolen property where in fact the property is not stolen: People v. Jaffee, 185 N.Y. 497.

In People v. Gardner, 144 N.Y. 119, 38 N.E. 1003, the defendant was indicted for an attempt to commit extortion. In New York, an essential element of the full crime is that the victim part with the money under the influence of fear. In that case, the prosecutrix was in fact a decoy of the police and was not put in fear by the defendant. After conviction, the defendant appealed to the general term of the Supreme Court and it was there held that no attempt had been committed. (It is interesting to note that many text writers have cited the opinion of the general term as expressing the law of New York.) Upon appeal to the Court of Appeals, the judgment was reversed, that court holding that the attempt was complete, saying, "the question whether an attempt to commit a crime has been made is determinable solely by the condition of the actor's mind, and his conduct in the attempted consummation of his design." In Reg. v. Francis, 12 Cox's Criminal Cases 612, the prisoner was indicted for an attempt to obtain money by false pretense. The evidence showed that he had presented a ring to a pawnbroker, stating that it was a real diamond. The latter recognized the falsity of the jewel and refused to lend money. The defendant was then apprehended and his trial resulted in a verdict of guilty, which on appeal was affirmed. A similar case arose later, with the exception that the defendant there attempted to obtain money upon a false bank note. The conviction was affirmed by the court of Appeals: Reg. v. Jarman, 14 Cox's Criminal Cases 111.

All of the English authorities seem to be in accord in holding that the fact that the prosecutor is not deceived does not prevent a conviction for an attempt at false pretense.

In State v. Wilson, 30 Conn. 500, page 506, it is said: "Indeed, upon principle, it would be a novel and startling proposition, that a known pickpocket might pass around in a crowd, in full view of a policeman, and even in the room of a police station, and thrust his hands into the pockets of those present with intent to steal, and yet not be liable to arrest or punishment, until the policeman had first ascertained that there was in fact money or valuables in someone of the pockets on which the thief had experimented. The statement of such a proposition is a sufficient refutation of it; and the only safe rule is, that the attempt is complete and punishable when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption, or because there was nothing in the pocket, or for other extrinsic cause."

In the instant case, there was no legal impossibility of consummating the offense, only a factual impossibility — the failure to deceive the intended victim. In such a case, the requisite intent is present. The means are adapted to the end, and the purpose of the criminal laws being to protect society against those whose intentions are to injure it or its members, no sound reason exists why an attempt such as that here made, the purpose of which was by means of pretensions which were false to obtain money, should not lead to punishment Certainly the situation is well within our definition of an attempt as stated in Com. v. Crow, 303 Pa. 91, 98: "An attempt is an overt act done in pursuance of an intent to do a specific thing, but falling short of completion: Com. v. Eagan, 190 Pa. 10; or as defined in 8 R. C. L. 277: 'An indictable attempt, therefore, consists of two important elements: first, an intent to commit the crime; and, second, a direct ineffectual act done towards its commission. It will be observed that a failure to consummate the crime is as much an element of an attempt to commit it as the intent and the performance of an overt act towards its commission.' " If this were held to be no attempt because there was no deception, then criminals of this kind, committing this offense, which is a subtle form of larceny, could go on plying their illicit trade, until they find a dupe, and would thus have a favored status in the law over other thieves.

We think the legal conclusions summed up by Bishop in his Criminal Law, 9th edition, volume 1, section 752, should cover the field in cases of this kind: "Where the nonconsummation of the intended criminal result is caused by an obstruction in the way, or by want of the thing to be operated upon, if such impediment is of a nature to be unknown to the offender, who used what seemed appropriate means, the punishable attempt is committed."

Turning briefly to the position assumed by the Superior Court, that the representations were not such as to deceive a man of ordinary understanding, it is sufficient to say that the reason for creating the crime of false pretense is to protect not the shrewd and capable but the simple and gullible from the designs of those who live by preying upon the ignorance of the public. The principle was re-announced in Pennsylvania in Com. v. Henry, 22 Pa. 253, where it was said (page 256): "Nor is it less a false pretense because the party imposed upon might, by common prudence, have avoided the imposition." This principle was re-affirmed in Com. v. KoEune, 69 Pa. Super. 176, from which we quote this language (page 181): "The statute was not enacted for the protection of the shrewd and capable only. . . . . . It is, of course, conceivable that a pretense might be so trifling or absurd as to warrant a court in saying that it was not calculated to deceive but where the pretense is such as might well mislead the confiding and unwary a fraud ought not to be ignored because care and circumspection were not exercised by the person imposed on."

A further contention advanced by the appellant is to be considered. He argues that he could not be lawfully convicted of the attempt because in fact he received $25 from the prosecutor. His contention in this respect is unavailing. His purpose was to obtain a greater sum, not only to obtain it at the time he made the representation, but to obtain sums of money in the future from the prosecutor as a result of his false pretension. His attempt to obtain the larger and further sums remains an attempt, notwithstanding lie received part of the money he was endeavoring to collect.

The judgment of the Superior Court is reversed and the judgment of sentence of the court of quarter sessions is reinstated.