OUJI-CR 5-40

FALSE PRETENSE (FELONY, SECTION 1541.3) - ELEMENTS

No person may be convicted of false pretense unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, obtained title;

Second, to money/property/(a valuable thing);

Third, of another;

Fourth, by means of two or more false checks written for a total amount of ($1,000-$2,499.99)/($2,500-$14,999.99/($15,000 or more);

Fifth, known by the defendant to be false;

Sixth, in pursuance of a common scheme;

Seventh, with intent to cheat and defraud.

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Statutory Authority: 21 O.S. 2011 & Supp. 2019, §§ 1541.1, 1541.2, 1541.3.

Committee Comments

Sections 1541.1 through 1541.5 are statutes passed in 1967 to replace section 1541, the previous false-pretense and bogus-check statute. Although the 1967 law adds section 1541.3 to make it a felony to pass several checks totaling more than $50 (raised to $500 in 2001) in a common scheme, the present statutes are substantially similar to the repealed section 1541. Hence, the cases construing section 1541 are still valid precedent for statutory interpretation of sections 1541.1 through 1541.5.

Two instructions in addition to the attempt instruction are presented under the heading of Felony False Pretense because two sections, 1541.2 and 1541.3, create felony false-pretense crimes. Although the language of section 1541.3 is different from the language of sections 1541.1 and 1541.2, it was the opinion of the Commission that, since these three sections are part of the same legislation, section 1541.3 does not provide a different definition of false pretense. Rather, the Commission has concluded that section 1541.3 is a statute of classification that uses the definition of "false pretense" given by section 1541.1. The elements of the two false-pretense crimes are therefore identical, with the exception of the specific aggravating facts indicated in the fourth element and the means used to accomplish the intended purpose in the fifth element.

The act of obtaining made punishable by the false-pretense crimes involves the passage of title to the accused from the person who has been deceived. As the element of taking in larceny encompasses the concept of transfer of possession, so the element of obtaining in false pretense encompasses the concept of transfer of title. Whether or not title has passed to the accused is primarily a question of the intent of the parties to the transaction, especially the intent of the victim. If the victim meant only to transfer possession, the crime is larceny by fraud. Braswell v. State, 1964 OK CR 28, ¶ 10, 389 P.2d 998, 1001; Warren v. State, 1950 OK CR 162, 226 P.2d 320, 93 Okl. Cr. 166.

The second element indicates what must be obtained in order to constitute false pretense for the purpose of sections 1541.1 through 1541.3. The statutory language reads "money, property or valuable thing." The word "money" presents no difficulty. Mason v. State, 1923 OK CR 62, 212 P. 1028, 23 Okl. Cr. 111 (1923). The words "valuable thing" have expanded the protection of false-pretense to include, for example, telephone service and the cancellation of a promissory note and chattel mortgage. Stokes v. State, 1961 OK CR 76, ¶ 17, 366 P.2d 425, 430; Bright v. State, 1943 OK CR 17, 134 P.2d 150, 76 Okl. Cr. 67. Nothing of value has been obtained, however, when the accused gives a false check for a pre-existing debt. The debt simply is not satisfied by the check and still exists. Jones v. State, 1913 OK CR 155, 132 P. 914, 9 Okl. Cr. 621.

The word "property" has been used without any descriptive adjective in the instruction. The issue is thereby raised as to whether the element should be limited to personal property, or whether real property is protected by the false-pretense statutes. No Oklahoma case has dealt with the issue, and cases in American jurisdictions are split on the issue. W. LaFave & A. Scott, Criminal Law § 90, at 665 (1972).

False pretense, like embezzlement, is a statutory crime created to cover situations not punishable under common law interpretations of larceny. Larceny is limited to personal property. If the legislative intent with respect to embezzlement excluded real property, as concluded in the commentary following the embezzlement instructions, it would follow that the Legislature also intended to exclude real property from the protection of the false-pretense statutes. On the other hand, 21 O.S. 2011, § 104, defines "property" as including both real and personal property.

The issue may actually be moot, because the Court of Criminal Appeals has held that the deed to real property is personal property possessing a value equivalent to the value of the land it represents. Thus, a person could be convicted of larceny when the property allegedly taken is a deed to real property. State v. McCray, 1919 OK CR 7, 177 P. 127, 15 Okl. Cr. 374 (construing section 1709). It would therefore appear that a person who obtains a deed transferring title to real property through false representations has obtained personal property. The person should then be subject to prosecution for false pretense.

The Commission has decided to use only the word "property" in the instructions on false pretenses. The Commission leaves the precise question raised to further court interpretation and decision.

The language "of another" is used in the third element to promote consistency of language with the larceny and embezzlement instructions, although the statutory language actually reads "any person, firm or corporation."

The fourth elements for both sections 1541.2 and 1541.3 are similar. Under section 1541.2, the property obtained by the defendant must be valued at more than $1,000, whereas, under section 1541.3, the total value of the checks must be more than $50 $2,000, although the amount of each separate check need not equal more than $50 $1,000. Morris v. State, 1977 OK CR 267, ¶ 9, 568 P.2d 1303, 1305 (amount in statute at the time was $20). Although the defendant is guilty of a felony if the amount obtained or total value of the checks is $2,000 or more, the range of punishment is dependent on whether the amount obtained or total value of the checks is more or less than $1,000 $2,500 as well as $15,000.

The fifth element lists the alternative means by which the deception can be accomplished. The Oklahoma Court of Criminal Appeals held in Broadway v. State, 1991 OK CR 113, ¶ 7, 818 P.2d 1253, 1255, that the crime of false-pretense may be committed by means other than a "statement," such as by a trick, deception, false or fraudulent representation, or by a pretense. The trial should select the appropriate means of deception in the instruction so that it fits the actual facts of the case being tried. The crime created by section 1541.3 can be committed only by means of false checks. Therefore, the fourth element of the instruction for section 1541.3 lists only that method of deception.

The fifth element of section 1541.2 and the fourth element of section 1541.3 indicate that the representation or check must be false.

The sixth element indicates that the defendant must know that a false representation has been made or a false check has been given. Although the statutory language does not indicate explicitly that the defendant must know that the representation or check is false, section 1541.4 creates a presumption of knowledge of lack of sufficient funds to pay the check if it is not paid within five days from the date the check is presented for payment. The presumption of section 1541.4 in conjunction with the general understanding of the elements of false pretense would indicate that the representation or check must be known to be false by defendant. Ross v. State, 1977 OK CR 340, ¶ 7, 572 P.2d 1001, 1003; W. LaFave & A. Scott, Criminal Law § 90, at 666 (1972); R. Perkins, Criminal Law 309 (2d ed. 1969).

In addition to the mens rea of knowledge concerning the falseness of the representation or check, the defendant must also have the intent to cheat and defraud. This is the specific mens rea of the crimes of false pretense. Dunaway v. State, 1977 OK CR 86, ¶ 9, 561 P.2d 103, 106; Moore v. State, 1952 OK CR 140, 250 P.2d 46, 96 Okl. Cr. 118; Beach v. State, 1924 OK CR 187, 230 P. 758, 28 Okl. Cr. 348. Section 1541.4 also creates a presumption of intent to defraud if the defendant fails to pay the check within the specified period.

Section 1541.1 also creates a specific attempted-false-pretense crime. OUJI-CR 5-39 has been drafted for this offense. The only variance between the false-pretense instruction and the attempted-false-pretense instruction is in the first element where "attempting to obtain title" is substituted for "obtaining title."

Since a specific attempt statute exists for false pretense under 21 O.S. 2001 2011, § 1541.1, the State is prohibited from charging an attempted false pretense under the general attempt statutes. See Ex parte Smith, 1952 OK CR 81, 246 P.2d 389, 95 Okl. Cr. 370.

(2019 Supp.)