taken there. Offence held proved. Allegation in indictment that prisoner "feloniously had taken and carried away," the goods does not impose any additional burden of proof on the Crown: R. v. Jewell, 6 Man. L. R. 460.

PUNISHMENT IN OTHER CASES.

356. Every one is guilty of an indictable offence and liable to seven years' imprisonment who steals anything for the stealing of which no punishment is otherwise provided, or commits in respect thereof any offence for which he is liable to the same punishment as if he had stolen the same.

2. The offender is liable to ten years' imprisonment if he has been previously convicted of theft. R. S. C. c. 164, ss. 5, 6 & 85. (Amended).

As to previous convictions, see ss. 628, 676. The words any felony" stood in lieu of the word "theft" in the repealed clause. The words in italics are superfluous.

PUNISHMENT WHEN VALUE EXCEEDS $200.

357. If the value of anything stolen, or in respect of which any offence is committed for which the offender is liable to the same punishment as if he had stolen it, exceeds the sum of two hundred dollars, the offender is liable to two years' imprisonment, in addition to any punishment to which he is otherwise liable for such offence. R. S. C. c. 164, s. 86. (Amended).

The indictment must specially aver that the value exceeds two hundred dollars. The additional punishment was seven years by the repealed clause, which also applied to obtaining by false pretenses.

PART XXVII.

OBTAINING PROPERTY BY FALSE PRETENSES AND OTHER CRIMINAL FRAUDS AND DEALINGS WITH PROPERTY.

DEFINITION.

358. A false pretense is a representation, either by words or otherwise, of a matter of fact either present or past, which representation is known to the person making it to be false, and which is made with a fraudulent intent to induce the person to whom it is made to act upon such representation.

2. Exaggerated commendation or depreciation of the quality of anything is not a false pretense, unless it is carried to such an extent as to amount to a fraudulent misrepresentation of fact.

3. It is a question of fact whether such commendation or depreciation does or does not amount to a fraudulent misrepresentation of fact.

This definition is taken from the English draft, where it is given as existing law.

PUNISHMENT,

359. Every one is guilty of an indictable offence and liable to three years' imprisonment who, with intent to defraud, by any false pretense, either directly or through the medium of any contract obtained by such false pretense, obtains anything capable of being stolen, or procures anything capable of being stolen to be delivered to any other person than himself. R. S. C. c. 164, s. 77. (Amended).

As to what things are capable of being stolen, see remarks under s. 353, ante.

The first part of this section is based on 24 & 25 V. c. 96, s. 88, the second part on s. 89 of the Imperial Act.

Section 198 of the Procedure Act, which allowed a conviction for obtaining under false pretenses on a trial for larceny, and s. 196 of the same Act which enacted that on a trial for obtaining under false pretenses, if a larceny was proved the defendant could nevertheless be found guilty of the offence charged, have not been re-enacted: 3 Stephen's Hist. 162; R. v. Adams, 1 Den. 38; R. v. Rudge, 13 Cox, 17; R. v. Bryan, 2 Russ. 664, note; R. v. Solomons, 17 Cox, 93; R. v. Gorbutt, Dears. & B. 166.

By s. 711, upon an indictment under this section, the jury may return a verdict of guilty of an attempt to commit the offence charged, if the evidence warrants it: R. v. Roebuck, Dears. & B. 24; R. v. Eagleton, Dears. 376, 515; R. v. Hensler, 11 Cox, 570; R. v. Goff, 9 U. C. C. P. 438.

By ss. 613 and 616 post, in indictments for obtaining or attempting to obtain under false pretenses, a general intent to defraud is a sufficient allegation, and it is not necessary to allege any ownership of the chattel, money or valuable security.

To constitute the offence of obtaining goods by false pretenses three elements are necessary. 1st, the statement upon which the goods are obtained must be untrue; 2nd, the prisoner must have known at the time he made the statement that it was untrue; 3rd, the goods must have been obtained by reason and on the representation of that false statement: R. v. Burton, 16 Cox, 62; see R. v. Buckmaster and R. v. Solomons, Warb. Lead. Cas. 158, 160; R. v. Russett, 17 Cox, 534.

The distinction between larceny and false pretenses is that, if by means of any trick or artifice the owner of property is induced to part with the possession only, still meaning to retain the right of property, the taking by such means will amount to larceny; but if the owner part with not only the possession of the goods, but the right of property in them also, the offence of the party obtaining them will not be larceny, but the offence of obtaining goods by false pretenses.

Indictment.- that J. S., on unlawfully, and with a fraudulent intent, did falsely pretend to one A. B. that he, the said J. S., then was the servant of one O. K., of tailor, (the said O. K. then and long before being well known to the said A. B., and a customer of the said A. B. in his business and way of trade as a woollen draper), and that he, the said J. S., was then sent by the said O. K. to the said A. B. for five yards of superfine woollen cloth, by means of which said false pretenses, the said J. S. did then unlawfully and fraudulently obtain from the said A. B. five yards of superfine woollen cloth.

A form is given in schedule one, F. F.: see under s. 611. Under s. 982, an indictment drawn upon that form is sufficient. But, to avoid the necessity of giving particulars, which the court will not refuse to the defendant, ss. 616, 617, the false pretenses should be averred in the indictment. It is not necessary, however, as heretofore, to aver that the false pretenses were not true.

The pretense must be set out in the indictment: R. v. Mason, 2 T. R. 581; R. v. Goldsmith, 12 Cox, 479; see now s. 616, post. And it must be stated to be false: R. v. Airey, 2 East, 30. And it must be of some existing fact; a pretense that the defendant will do some act, or that he has got to do some act is not sufficient: R. v. Goodhall, R. & R. 461; R. v. Johnston, 2 Moo. 254; R. v. Lee, L. & C. 309. Where the pretense is partly a misrepresentation of an existing fact, and partly a promise to do some act, the defendant may be convicted, if the property is parted with in consequence of the misrepresentation of fact, although the promise also acted upon the prosecutor's mind: R. v. Fry, Dears. & B. 449; R. v. West, Dears. & B. 575; R. v. Jennison, L. & C. 157, Warb. Lead. Cas. 167.

Where the pretense, gathered from all the circumstances, was that the prisoner had power to bring back the hus band of the prosecutrix, though the words used were merely promissory that she, the prisoner, would bring him back, it was held a sufficient pretense of an existing fact, and that it is not necessary that the false pretense should be made in express words, if it can be inferred from all the circumstances attending the obtaining of the property: R. v. Giles, L. & C. 502.

Where the indictment alleged that the prisoner pretended to A.'s representative that she was to give him twenty shillings for B., and that A. was going to allow B. ten shillings a week, it was held that it did not sufficiently appear that there was any false pretense of an existing fact: R. v. Henshaw, L. & C. 444.

An indictment alleged that the prisoner obtained a coat by falsely pretending that a bill of parcels of a coat, value £0 14s. 6d. of which £0 4s. 6d. had been paid on account, and £0 10s. Od. only was due, was a bill of parcels of another coat of the value of twenty-two shillings. The evidence was that the prisoner's wife had selected the £0 14s. 6d. coat for him, subject to its fitting him, and had paid

£0 48. 6d. account, for which she on received a bill of parcels giving credit for that amount. On trying on the coat it was found to be too small, and the prisoner was then measured for one to cost twenty-two shillings. When that was made it was tried on by the prosecutor, who was not privy to the former part of the transaction. The prisoner when the coat was given to him handed the bill of parcels for the £0 14s. 6d. and also £0 10s. Od. to the prosecutor, saying "There is £0 10s. Od. to pay." The bill was receipted, and the prisoner took the twenty-two shillings coat away with him. The prosecutor stated that believing the bill of parcels to refer to the twenty-two shillings coat he parted with that coat on payment of £0 10s. Od. otherwise he should not have done so: Held, that there was evidence to support a conviction on the indictment: R. v. Steels, 11 Cox, 5.

So the defendant may be convicted although the pretense is of some existing fact, the falsehood of which might have been ascertained by inquiry by the party defrauded : R. v. Wickham, 10 A. & E. 34; R. v. Woolley, 1 Den. 559; R. v. Ball, C. & M. 249; R. v. Roebuck, Dears. & B. 24; or against which common prudence might have guarded: R. v. Young, 3 T. R. 98; R. v. Jessop, Dears. & B. 442; R. v. Hughes, 1 F. & F. 355. If, however, the prosecutor knows the pretense to be false: R. v. Mills, Dears. & B. 205; or does not part with the goods in consequence of defendant's representation: R. v. Roebuck, Dears. & B. 24; or parts with them before the representation is made: R. v. Brooks, 1 F. & F. 502; or in consequence of a representation as to some future fact: R. v. Dale, 7 C. & P. 352; or if the obtaining of the goods is too remotely connected with the false pretense, which is a question for the jury: R. v. Gardner, Dears. & B. 40; R. v. Martin, 10 Cox, 383, Warb. Lead. Cas. 173; or if the prosecutor continues to be interested in the money alleged to have been obtained, as partner with the defendant, R. v. Watson, Dears. & B. 348; R. v. Evans, L. & C. 252; or the object of the false pretense

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