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Perritt v. State9/23/2005
river v. State, 589 P.2d 391 (Wyo.1979), this Court acknowledged that it had not yet decided whether a false promise of future action, which at the time of its making the promisor does not intend to perform, will constitute a false pretense under the Wyoming statute. Id. at 393. It remains an open question. At one time, most courts limited the crime of obtaining property by false pretenses to those cases of a misrepresentation of existing fact, but an increasing number of states are applying it to future acts. The reasoning for the change has been explained as follows:
While a large number of jurisdictions, sometimes invoking the danger of persons who are guilty of no more than a breach of contract being held criminally liable, have continued to adhere to the traditional rule that the crime of obtaining money or property by false pretenses can only be predicated upon a misrepresentation of a past or existing fact and not upon an intention not to comply with a promise or a statement as to a future act, an increasing number of jurisdictions, usually stressing the opportunities for fraud with impunity under the traditional rule, have held that a present intent not to comply with a promise or a statement as to a future act can be the basis of the crime of obtaining money or property by false pretenses.
Michael A. DiSabatino, Annotation, Modern Status of Rule That Crime of False Pretenses Cannot Be Predicated Upon Present Intention Not To Comply With Promise Or Statement As To Future Act, 19 A.L.R.4th 959, 964 (1983).
Because early common law did not recognize the crime of obtaining property by false pretenses when the pretenses amounted to "merely a promise of future conduct, and common prudence and caution would have prevented any injury arising from it," it became a generally accepted notion that the failure to pay back money or use it as specified at the time of borrowing raised the concern that disgruntled creditors will instigate criminal proceedings against those who blamelessly encounter ordinary commercial defaults. People v. Ashley, 42 Cal.2d 246, 267 P.2d 271, 280-82 (1954), cert. denied, 348 U.S. 900, 75 S.Ct. 222, 99 L.Ed. 707 (1954). It is thought by some that allowing the crime to include cases involving future conduct would create a considerable risk of prosecuting one who is guilty of nothing more than a failure or inability to pay his debts. Commonwealth v. True, 16 Mass.App.Ct. 709, 455 N.E.2d 453, 454 (1983); Ashley, 267 P.2d at 282.
We, however, agree with the conventional wisdom of Ashley, and a growing number of courts that this result is avoided because something more than mere nonperformance is required to prove the defendant's intent not to perform his promise, and proof of nonperformance alone is not sufficient in criminal prosecutions based on false promises. True, 455 N.E.2d at 454; State v. Aurgemma, 116 R.I. 425, 358 A.2d 46, 49-50 (1976); Ashley, 267 P.2d at 282. Specific intent is an essential element of the crime of obtaining property by false pretenses in Wyoming. In order to succeed in a prosecution for a promise to perform future acts, the State is required to prove that a defendant had the intent not to perform a promise as well as the falsity of the promises/pretenses, that property was obtained by reason of the pretenses, and the knowledge of the accused of their falsity. Lopez v. State, 788 P.2d 1150, 1152 (Wyo.1990); Miller v. State, 732 P.2d 1054, 1063-64 (Wyo.1987).
[ ] All of these authorities are instructive, although neither the parties nor the district court made much effort to steer the evidence toward proving, or disproving, the elements of the crime. We have over 1500 pages of transcripts and hundreds of pages o
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