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14 Neb. L. Bull. 129 (1935-1936)
Criminal Misrepresentation: Obtaining by False Pretenses

handle is hein.journals/nebklr14 and id is 133 raw text is: UNIVERSITY OF NEBRASKA SECTION CRIMINAL MISREPRESENTATION: OBTAINING BY FALSE PRETENSES LESTER B. ORFIELD Associate Professor of Law University of Nebraska, Lincoln, Nebraska There is no specific crime in Anglo-American law known as mis- representation or fraud. The words misrepresentation and fraud are capable of infinitely varied meanings. Slander and libel are forms of misrepresentation. So are forgery and perjury. But slander and libel are not usually nor necessarily committed with the object of obtaining pro- perty, though they may frequently result in property injury to the victim. Forgery is designed to secure property, but necessarily involves the altera- tion of written documents. It was a cheat at common law. Perjury is limited to misrepresentations in judicial proceedings. Obtaining by false pretenses may be accomplished by oral or written statements or even by conduct. It is primarily a crime against property1 whereas libel is primarily against personalty and perjury against the administration of just- ice. Obtaining by false pretenses is perhaps the leading type of crime involving misrepresentation. In most states today, however, there are several statutes covering the crime. There is likely to be one rather generic statute patterned after 30 Geo. II, Chap. 24, the eighteenth century English statute laying down the modern law of false pretneses. In addition there often are more specialized statutes, such as those penalizing the obtaining of signatures 2 and the passing of worthless checks.3 Swindling devices of various kinds are frequently punished. Often there are statutes against false advertising.4 In recent years representations made in the sale of securities have been singled out.' The Federal Securities Act of 1933 is a notable illustration of the latter. The lack of any broad underlying concepts of fraud in the United States is graphically illustrated by the fact that in 1933 there were 215 sections in the New York Penal Code covering misrepresentation.6 At the other 1 Likewise the tort of deceit usually involves commercial, financial or economic ad- vantage. Francis H. Bohlen, Misrepresentation as Deceit, Negligence or Warranty, (1929) 42 HARV. L. REv. 733. 2NEB. COMP. STAT. 1929, § 28-1207; Roby v. State, (1901) 61 Neb. 218, 85 N. W. 61; Moline v. State, (1903) 67 Neb. 164, 93 N. W. 228 (variance when information alleges false pretenses and proof is of obtaining signature); Moline v. State, (1904) 72 Neb. 361, 100 N. W. 810 (history of act sketched). 3Lahners v. State, (1929) 118 Neb. 184, 233 N. W. 951. 4 Milton Handler, False and Misleading Advertising, (1929) 39 YALE L. JouR. 22, 28-34. 5False statements as to the value of certificates of stock are penalized under NEB. CoMP. STAT. 1929, § 28-1217, construed in Joseph v. State, (Neb. 1935) 260 N. W. 803. 6John W. MacDonald, The Classification of Crimes, (1933) 18 CORN. L. QUART. 524, 551.

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