CLARK, Associate Justice.
This is an appeal from a conviction under the first count of an indictment charging appellant and his wife with obtaining money by false pretenses.
Of the several points raised by appellant we think one to be of controlling significance. He urges that the indictment failed to charge a crime because the one statement which he is alleged to have made relating to a subsisting fact was not traversed and no evidence was introduced to prove that the one statement was false.
To examine this contention we turn to the indictment. It is there charged that appellant and his wife, co-defendant below, “ * * * with intent to defraud, feloniously did pretend and represent to one Violette McMullen, then and there being, that they, the said Sydney A. Chaplin and the said Dorothy Chaplin, were engaged in the wine and liquor business in Alexandria, Virginia, and that if she, the said Violette McMullen, would advance certain money, they, * * * would purchase certain liquor stamps with said money and * * * would return * * * any money so advanced * * (Italics added.) In the traversing clause, it is charged that the defendants “ * * * would not purchase such liquor stamps and would not return * * * the money advanced * * * as they * * * well knew.”
It appears from the indictment that the prosecution’s case was necessarily founded on the defendants’ intention, at the time of acquiring the money, not to do two things promised: (1) buy stamps, and (2) repay the money. Both of these promises relate to things the defendants were to do in the future. The prosecution did not prove that the defendants misrepresented their business connection. On the contrary, it appears from the record that the appellant and his wife were in the liquor business, that they did own a large quantity of wine for which state stamps were required and that they did buy some small amount of tax stamps. The question for our decision comes down to whether the “present intention” of the defendants not to return the money and not to buy the stamps as they said they would relates to a “present or past existing fact” such as will support a conviction for the crime of false pretenses. The rule stated in Wharton’s Criminal Law, 12th Ed., § 1439, is that: “A false pretense, under the statute, must relate to a past event or existing fact. Any representation with regard to a future transaction is excluded. Thus, for instance, a false statement, that a draft which the defendant exhibits to the prosecutor has been received from a house of good credit abroad, and is for a valuable consideration, on the faith of which he obtains the prosecutor’s goods, is within the law; a promise to deposit with him such a draft at some future time, though wilfully and intentionally false, and the means of prosecutor’s parting possession with his property, is not. So a pretense that the party would do an act that he did not mean to do (as a pretense that he would pay for goods on delivery) was ruled by all the judges not to be a false pretense under the Statute of Geo. II., and the same rule is distinctly recognized in this country, it being held that the statement of an intention is not a statement of an existing fact.” We think the great weight of authority sustains this statement of the rule and compels us to answer the question in the negative.
In its brief, the government was most candid on this point, stating that Commonwealth v. Althause, 207 Mass. 32, 93 N. E. 202, 31 L.R.A.,N.S., 999, from which a quotation of dictum was taken did not represent the weight of authority. The same may be said for the other two cases cited to support the prosecution’s position on the point. It appears from a study of these cases that the courts concerned found no difficulty in applying the rule on “intention” which has long been used in actions at law for fraud and deceit. We think it unnecessary to discuss the advisability of transplanting this concept to criminal actions. There is a vast difference between subjecting a defendant to criminal penalties and providing for the redress of wrongs through civil actions.
A majority of the courts having this problem placed before them have not subscribed to the theory that “intention”, as manifest by false and misleading promises, standing alone, is a fact in the sense required for a conviction on the charge of false pretenses. For illustrative cases see: Biddle v. United States, 9 Cir., 156 F. 759; State v. Ferris, 171 Ind. 562, 86 N.E. 993, 41 L.R.A.,N.S., 173; People v. Orris, 52 Colo. 244, 121 P. 163, 41 L.R.A., N.S., 170; State v. Howd, 55 Utah 527, 188 P. 628; People v. Daniels, 25 Cal. App.2d 64, 76 P.2d 556; Willis v. State, 34 Ariz. 363, 271 P. 725; Chilton v. People, 95 Colo. 268, 35 P.2d 870; Lamb v. State, 202 Ark. 931, 155 S.W.2d 49; State v. Doudna, 226 Iowa 351, 284 N.W. 113; Stephens v. Milikin, 35 Ga.App. 287, 133 S.E. 67; State v. Craft, 344 Mo. 269, 126 S.W.2d 177; Harris v. State, 125 Ohio St. 257, 181 N.E. 104; People v. Widmayer, 265 Mich. 547, 251 N.W. 540; Vaughan v. State, 36 Ga.App. 674, 137 S.E. 854; Id., 36 Ga.App. 675, 137 S.E. 854; McKee v. State, 26 Ala.App. 208, 155 So. 888; People v. Blanchard, 90 N.Y. 314; Cf. State v. Wren, 333 Mo. 575, 62 S.W.2d 853; State v. Ritchie, 172 La. 942, 136 So. 11.
Not only is the rule deeply rooted in our law, but moreover, we think the reasons upon which it is founded are no less cogent today than they were when the early cases were decided under the English statute cited by Wharton, supra. It is of course true that then, as now, the intention to commit certain crimes was ascertained by looking backward from the act and finding that the accused intended to do what he did do. However, where, as here, the act complained of- — -namely, failure to repay money or use it as specified at the time of borrowing — is as consonant with ordinary commercial default as with criminal conduct, the danger of applying this technique to prove the crime is quite apparent. Business affairs would be materially incumbered by the ever present threat that a debtor might be subjected to criminal penalties if the prosecutor and jury were of the view that at the time of borrowing he was mentally a cheat. The risk of prosecuting one who is guilty of nothing more than a failure or inability to pay his debts is a very real consideration. It is not enough to say that if innocent the accused would be found not guilty. The social stigma attaching to one accused of a crime as well as the burdens incident to the defense would, irrespective of the outcome, place a devastating weapon in the hands of a disgruntled or disappointed creditor.
The business policy, as well as the difficulties and dangers inherent in a contrary rule are illustrated by the earlier English cases. In Rex v. Goodhall, 1821, Russ. & R.C.C. 461, the accused was found to have obtained a quantity of meat, promising to pay for it but not so intending. In reversing the jury’s verdict of guilt}- the court said: “It was merely a promise for future conduct, and common prudence and caution would have prevented any injury arising from the breach of it.” Again, in Reg. v. Oates, 1855, Dears C.C. 459, 6 Cox C.C. 540, where the accused was charged with making a fraudulent overcharge for work performed the court discharged the prisoner saying: “Is a shopkeeper who knowingly charges for an article more than it is worth, liable to an indictment under this statute? * * * to hold the statute applicable to such a case would shake many transactions which, though certainly not fair in themselves are still not indictable.”
In Reg. v. Woodman, 1879, 14 Cox C.C. 179, the prosecution advanced precisely the same argument that is urged here, contending that the defendant’s intention was the existing fact about which the misrepresentation had been made. To this the court responded: “How can you define a man’s mind? It is a mere promissory false pre-tence.”
If we were to accept the government’s position the way would be open for every victim of a bad bargain to resort to criminal proceedings to even the score with a judgment proof adversary. No doubt in the development of our criminal law the zeal with which the innocent are protected has provided a measure of shelter for the guilty. However, we do not think it wise to increase the possibility of conviction by broadening the accepted theory of the weight to be attached to the mental attitude of the accused.
In view of the foregoing we do not think it necessary to review the other points raised by appellant.
Reversed.
D.C.Code 1940, § 22—1301.
People v. Ames, 61 Cal.App.2d 522, 143 P.2d 92; State v. McMahon, 49 R.I. 107, 140 A. 359. See also Smith v. Fontana, D.C., 48 F.Supp. 55, 60.
See: 51 A.L.R. 46, 63 ; 68 A.L.R. 635, 637; 91 A.L.R. 1295, 1297; 125 A.L.R. 879, 881.
For other cases see 24 A.L.R. 401, 52 A.L.R. 1170.
Cardozo, The Nature of the Judicial Process, p. 73.
“Perhaps the most significant advance in the modern science of law is the change from the analytical to the functional attitude”. Pound, Administrative Application of Legal Standards, Proceedings of American Bar Association, 1919, pp. 445, 449; quoted by Cardozo, op. cit.