The only question in this case is whether the false pretenses charged in the indictment were capable of defrauding, or, in other words, whether the court can say, as matter of law, that Ludington could not have been, and was not, deceived by them. The representation charged to have been made by Thomas, that he would give Ludington an order for the repayment of any money he might loan him, obviously is not a false pretense, within the meaning of the statute, for it is a mere promise. His statement that he wanted money to get home with, is not averred to have been *Page 354 untrue in fact. But the false representations made by him, to the effect that he was a chaplain in the army, and that he was a friend of Wise Co., of Lafayette, were of such a nature that it is impossible to assert that Ludington was not deceived by them in respect to Thomas' ability to pay. In Regina v. Hamilton (1 Cox Cr. Cas., 244; S.C. on appeal, 9 Ad. El. [N.S.], 376), the pretense consisted of a false statement by the defendant, that he was a captain in her majesty's fifth regiment of dragoon guards. Lord DENMAN, Ch. J., with the concurrence of all the judges, said: "We can easily conceive how a belief that the defendant was a captain in the army, might lead the other party to give the security; but it is a matter to be shown by the evidence."
Even if the objection that the indictment does not aver how the false pretense was calculated to do the mischief, were available on demurrer, or at the trial, by objection to the evidence, still the defect would be cured by verdict. It is matter of evidence, and it would be intended after verdict, that the evidence was sufficient. The case is the same after judgment on a plea of guilty, for the plea, by admitting all the substantial facts alleged in the indictment, admits also the existence of evidence by which such facts could be established.
The judgment should be affirmed.
Judgment affirmed. *Page 355