OUJI-CR 5-45

FALSE PRETENSE

(FELONY, SECTION 1542, ALTERNATE) - ELEMENTS

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

First, obtaining;

Second, a signature of another;

Third, to any written instrument;

Fourth, by means of a false token/writing/representation;

Fifth, known by the defendant to be false;

Sixth, with intent to cheat or defraud.

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Statutory Authority: 21 O.S. 1991, § 1542.

Committee Comments

Sections 1542 through 1545 were codified in the same legislation in 1910. In 1913, section 1541, now replaced by sections 1541.1 through 1541.5, was added to the Oklahoma law. The Court of Criminal Appeals has stated that the impetus for the passage of section 1541, even though section 1542 already provided a crime of false pretense, was to dispel any doubt as to whether giving a false check was a false representation. The court intimated that use of a false check to obtain property would have constituted the crime of false pretense anyway under section 1542, especially in light of the definition of false token given by section 1545. Douglas v. State, 15 Okl. Cr. 648, 179 P. 947 (1919). Through the years, therefore, the court has interpreted sections 1541 and 1542 to be almost identical in coverage. Since most false-pretense crimes were covered by both statutes, the court held that the State was permitted to elect under which statute the charge would be prosecuted. State v. Layman, 357 P.2d 1022 (Okl. Cr. 1960), overruled on other grounds, Broadway v. State, 818 P.2d 1253, 1255 n.1 (Okl.Cr. 1991); Riddle v. State, 97 Okl. Cr. 206, 261 P.2d 469 (1953). It is safe to assume that the prosecutor would generally elect to prosecute under section 1541.1 through 1541.4, because corroborating evidence is not required for conviction under these sections but is required under section 1542. See Nix v. State, 453 P.2d 309 (Okl. Cr. 1969) (construing section 743 of title 22).

The elements of false pretense under either element instruction for section 1542 are therefore substantially similar to the elements of the felony and misdemeanor false pretense crimes outlined supra.

It should be noted that, in terms of coverage, section 1542 is not as broad as sections 1541.1 through 1541.3 because of the absence of the "valuable thing" language in the statute. Under section 1542, it has been held that it is not a crime to obtain professional services by means of false representations, because services are not money or personal property. Ex parte Wheeler, 7 Okl. Cr. 562, 124 P. 764 (1912). A different result seemingly would be reached under section 1541.1. Cf. Stokes v. State, 366 P.2d 425 (Okl. Cr. 1961) (telephone service protected).

An alternate element instruction for section 1542 has been drafted to indicate that the prohibited activity of section 1542 not only includes obtaining title to money or personal property, but also obtaining a signature to a written instrument. Thus, if a defendant lies to another in order to obtain the signature of the other to a negotiable instrument, the defendant has committed the crime created by this section. Phenis v. State, 28 Okl. Cr. 142, 229 P. 652 (1924). It would seem that obtaining another's signature to a real estate deed would also be covered by this section.

Section 1542 makes no distinctions based on the value of the property obtained. Thus, no element on value is present in either instruction. Conviction under section 1542 is a felony in all instances.

The fourth element lists the alternative means given in the statute by which the deception can be accomplished. A false token and false writing could be considered specific kinds of false representation, but the Commission has included all the statutory alternatives. It is the opinion of the Commission, however, that the deceptive means under section 1542 are coextensive with the deceptive means listed in section 1541.1.

The statutory language of section 1542 indicates that the defendant must "designedly" use a false representation to obtain the property or signature. The Commission has interpreted the word "designedly" to mean that the defendant must know that the representation is false. Hence, the fifth element in both section 1542 instructions requires a known false representation. See R. Perkins, Criminal Law 309 (2d ed. 1969).