
    Colly v. The State.
    
      Prosecution for Obtaining Goods under False Pretenses.
    
    1. Obtaining money or goods by “false pretense"; what constitutes. — A “false pretense,” within the meaning of the statute (Rev. Code, § 3714), is a false representation as to some existing or past fact; a mere promise to be performed in future, though not meant to be kept when made, is not a false pretense.
    FROM tbe Circuit Court of Butler.
    Tried before tbe Hon. JOHN K. Henry.
    Tbis prosecution was commenced in tbe County Court, and was carried by appeal to tbe Circuit Court, where tbe following complaint (or charge) was filed: “Tbe State of Alabama, by its solicitor, complains of Spencer Colly, that, within twelve months before tbe commencement of tbis prosecution, being then in tbe actual employ of B. H. Bush, be did falsely pretend to him, tbe said R. H. Bush, with tbe intent to defraud him, that be would remain with him, tbe said R. H. Bush, and labor on bis farm tbe whole of the remainder of tbe year 1876; and, by means of such false pretenses, obtained from him,- tbe said R. H. Bush, goods of the value of ten dollars ; and, within about four days after tbe receipt of tbe goods, abandoned tbe premises and employment of tbe said R. H. Bush, and failed and refused to labor as be represented be would do; against tbe peace,” &c. Tbe defendant de-» murred to tbis statement, on tbe ground that it charged no offense known to tbe law, and also moved in-arrest of judgment on tbe same ground. Tbe court held tbe statement sufficient, and therefore overruled tbe demurrer and tbe motion in arrest; and these rulings, to which exceptions were reserved by tbe defendant, are tbe only matters here urged as error.
    W. A. Duke, for tbe defendant,
    cited Bishop on Statutory Crimes, § 451; 2 Bishop’s Crim. Law, §§ 397-400; Roscoe’s Crim. Ev. (8th ed.) 478-9 ; 2 Russ. Crimes, 290; Regina v. Gardner, 2 Lead. Crim. Cases, 163.
    Jorra W. A. Sanford, Attorney-General, for tbe State.
   STONE, J. —

Tbe charge, or criminal accusation, on which the appellant was tried and convicted in this cause, is insufficient. It charges no more than the making of a promise, to be performed in the future, which the defendant failed to observe and keep. This falls short of the requirements of section 3714 of the Eevised Code. “A false pretense is a false representation, which may be in mere oral words, or it may be in writing, or by signs, or the like, relating to some existing or past fact; and, to be indictable otherwise than as an attempt, it must actually mislead, and so produce such a particular cheat as falls within the words of the statute. A promise, not meant to be kept, is not a false pretense.”— Bish. Stat. Crimes, § 451. See, also, 2 Bish. Cr. Law, sections 400 et seq. The demurrer interposed to the accusation should have been sustained; and the motion in arrest of judgm'ent should also have been sustained.

Under the facts of this case, the defendant can not be convicted ; and we think a remandment of the cause could only result in an increase of expenses, without profit to any one. The judgment of the Circuit Court is reversed, and the prisoner ordered to be discharged from this prosecution.  