Proposed Jury Instructions for False Pretenses

NOTICE TO COUNSEL AND JUDGES: As provided in the Court's Order accepting the proposed jury instructions for a period of working review, the Court's provisional approval "is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit[,]" according to law. (emphasis added).

FELONIOUS FALSE PRETENSE OF GOODS, MONEY, PROPERTY    


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Felonious False Pretense. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Felonious False Pretense; and (2) not guilty.
    Felonious False Pretense is committed when any person obtains from another person by any false pretense, token or representation with intent to defraud money, goods, or other property, which may be the subject of larceny and which money, goods or other property had a value of $1,000.00 or more.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Felonious False Pretense, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.     The Defendant, ______________________________,
2.     in _______________ County, West Virginia,
3.     on or about the _____ day of _______________, 199__,
4.     did obtain from ______________________________,
5.     possession and title to: __________________________________________________

6.     of a value of $1,000.00 or more,
7.     which (money) (goods) (property) belonged to ______________________________,
8.     by falsely pretending and representing to ______________________________,
9.     that ________________________________________________________________ _____________________________________________________________________
10.     which pretense and representation did induce ______________________________ to part with said (money) (goods) or (property),
11.     with intent at that time to defraud and permanently deprive ______________________________ thereof.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Felonious False Pretense, you may find ______________________________ guilty as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Felonious False Pretense, you shall find the Defendant ______________________________ not guilty.

COMMENT

FELONIOUS FALSE PRETENSE OF GOODS, MONEY, PROPERTY    


1.     W.Va. Code §61-3-24(a)(1) and (a) (3).
2.     State v. Barnes, 177 W.Va. 510, 354 S.E. 2d 606 (1987), State v. Moore, 166 W.Va. 97, 273 S.E. 2d 821 (1980); State v. Martin, 103 W.Va. 446, 137 S.E. 885 (1927). These cases discuss the elements of the crime of obtaining Money, Goods or Property By False Pretenses.
3.     State v. West, 157 W.Va. 209, 200 S.E. 2d 859 (1973); State v. Smith, 97 W.Va. 313, 125 S.E. 90 (1924); State v. Pishner, 72 W.Va. 603, 78 S.E. 752 (1913); State v. Williams, 68 W.Va. 86, 69 S.E. 474 (1910); State v. Edwards, 51 W.Va. 220, 41 S.E. 429 (1902). These cases indicate that a larceny indictment will support a False Pretenses instruction and conviction.

FELONIOUS FALSE PRETENSE OF GOODS, MONEY, PROPERTY    

(including lesser offenses)


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Felonious False Pretense. One of three verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Felonious False Pretense; (2) guilty of Misdemeanor False Pretense and (3) not guilty.
    Felonious False Pretense is committed when any person obtains from another person by any false pretense, token or representation with intent to defraud money, goods, or other property, which may be the subject of larceny and which money, goods or other property had a value of $1,000.00 or more.
    Misdemeanor False Pretense is committed when any person obtains from another person by any false pretense, token or representation with intent to defraud money, goods, or other property, which may be the subject of larceny and which money, goods or other property had a value of less than $1,000.00.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Felonious False Pretense, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,

2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did obtain from ______________________________,
5.      possession and title to: __________________________________________________
6.      of a value of $1,000.00 or more,
7.      which (money) (goods) (property) belonged to ______________________________,
8.      by falsely pretending and representing to: ________________________________,
9.      that ______________________________________________________________ ________________________________________________________________________
10.      which pretense and representation did induce ______________________________ to part with said (money) (goods) or (property),
11.      with intent at that time to defraud and permanently deprive ______________________________ thereof.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Felonious False Pretense, you may find ______________________________ guilty as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the

charge as to any one or more of these elements of Felonious False Pretense, you shall find the Defendant ______________________________ not guilty of Felonious False Pretense (and deliberate on the lesser included offense of Misdemeanor False Pretense as hereinafter instructed).
    Before the Defendant, ______________________________ can be convicted of Misdemeanor False Pretense, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did obtain from ______________________________,
5.      possession and title to: ___________________________________________________
6.      of a value of less than $1,000.00,
7.      which (money) (goods) (property) belonged to ______________________________,
8.      by falsely pretending and representing to: ___________________________________,
9.      that ______________________________________________________________ ________________________________________________________________________
10.      which pretense and representation did induce ______________________________ to part with said (money) (goods) or (property),
11.      with intent at that time to defraud and permanently deprive ______________________________ thereof.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Misdemeanor False Pretense, you may find ______________________________ guilty as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Misdemeanor False Pretense, you shall find the Defendant ______________________________ not guilty.

COMMENT

FELONIOUS FALSE PRETENSE OF GOODS, MONEY, PROPERTY    

(including lesser offenses)


1.      W.Va. Code §61-3-24(a)(1) and (a)(3).
2.      State v. Barnes, 177 W.Va. 510, 354 S.E. 2d 606 (1987), State v. Moore, 166 W.Va. 97, 273 S.E. 2d 821 (1980); State v. Martin, 103 W.Va. 446, 137 S.E. 885 (1927). These cases discuss the elements of the crime of obtaining Money, Goods or Property By False Pretenses.
3.      State v. West, 157 W.Va. 209, 200 S.E. 2d 859 (1973); State v. Smith, 97 W.Va. 313, 125 S.E. 90 (1924); State v. Pishner, 72 W.Va. 603, 78 S.E. 752 (1913); State v. Williams, 68 W.Va. 86, 69 S.E. 474 (1910); State v. Edwards, 51 W.Va. 220, 41 S.E. 429 (1902). These cases indicate that a larceny indictment will support a False Pretenses instruction and conviction.

 

FELONIOUS OBTAINING MONEY, GOODS , PROPERTY

OR SERVICES BY FRAUDULENT PRETENSES WHERE

COMMON SCHEME EXISTS     


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is FELONIOUS OBTAINING MONEY, GOODS, PROPERTY OR SERVICES BY FRAUDULENT PRETENSES WHERE COMMON SCHEME EXISTS.. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Felonious Obtaining Money, Goods, Property or Services By Fraudulent Pretense Where Common Scheme Exists; and (2) not guilty.
    Felonious Obtaining Money, Goods, Property or Services By Fraudulent Pretense Where Common Scheme Exists is committed when any person willfully deprives another person of any money, goods, property or services by means of fraudulent pretenses, representations or promises by a common scheme or plan and the cumulative value of the money, goods, property or services so obtained is $1,000. or more.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant can be convicted of Felonious Obtaining Money, Goods, Property or Services By Fraudulent Pretense Where Common Scheme Exists, the State of West Virginia must overcome the presumption that the Defendant is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,

2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 2____ through the ______ day of __________________, 2____;,
4.      did obtain from and willfully deprive ____________________________,
5.      by common scheme or plan
6.      (money)
    (goods) to-wit: ____________________________________
    (property)    to-wit: ____________________________________
(services)     to-wit:_____________________________________
7.      with a cumulative value of $1,000 or more.
8.      by fraudulently pretending and representing to ____________________________,
9.      that ____________________________________________________ _______________________________________________________________.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Felonious Obtaining Money, Goods, Property or Services By Fraudulent Pretense Where Common Scheme Exists, you may find the Defendant guilty as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Felonious Obtaining Money, Goods, Property or Services By Fraudulent Pretense Where Common Scheme Exists, you shall find the Defendant not guilty.

  COMMENT

FELONIOUS OBTAINING MONEY, GOODS , PROPERTY

OR SERVICES BY FRAUDULENT PRETENSES WHERE

COMMON SCHEME EXISTS     

1.      W.Va. Code §61-3-24d

 

MISDEMEANOR FALSE PRETENSE OF GOODS, MONEY, PROPERTY     

______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Misdemeanor False Pretense. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Misdemeanor False Pretense and (2) not guilty.
    Misdemeanor False Pretense is committed when any person obtains from another person by any false pretense, token or representation with intent to defraud money, goods, or other property, which may be the subject of larceny and which money, goods or other property had a value of less than $1,000.00.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Misdemeanor False Pretense, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did obtain from ______________________________,
5.      possession and title to: ___________________________________________________

6.      of a value of less than $1,000.00,
7.      which (money) (goods) (property) belonged to ______________________________,
8.      by falsely pretending and representing to:__________________________________,
9.      that _____________________________________________________________ ________________________________________________________________________
10.      which pretense and representation did induce ______________________________ to part with said (money) (goods) or (property),
11.      with intent at that time to defraud and permanently deprive ______________________________ thereof.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Misdemeanor False Pretense, you may find ______________________________ guilty as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Misdemeanor False Pretense, you shall find the Defendant ______________________________ not guilty.

COMMENT

MISDEMEANOR FALSE PRETENSE OF GOODS, MONEY, PROPERTY    


1.      W.Va. Code §61-3-24(a)(1) and (a) (3).
2.      State v. Barnes, 177 W.Va. 510, 354 S.E. 2d 606 (1987), State v. Moore, 166 W.Va. 97, 273 S.E. 2d 821 (1980); State v. Martin, 103 W.Va. 446, 137 S.E. 885 (1927). These cases discuss the elements of the crime of obtaining Money, Goods or Property By False Pretenses.
3.      State v. West, 157 W.Va. 209, 200 S.E. 2d 859 (1973); State v. Smith, 97 W.Va. 313, 125 S.E. 90 (1924); State v. Pishner, 72 W.Va. 603, 78 S.E. 752 (1913); State v. Williams, 68 W.Va. 86, 69 S.E. 474 (1910); State v. Edwards, 51 W.Va. 220, 41 S.E. 429 (1902). These cases indicate that a larceny indictment will support a False Pretenses instruction and conviction.

 

 

FELONIOUS FALSE PRETENSE OF LABOR AND SERVICES     


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Felonious False Pretense. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Felonious False Pretense; and (2) not guilty.
    Felonious False Pretense is committed when any person, firm or corporation obtains from another person by any false pretense, token or representation with intent to defraud, services or labor, and which services or labor had a value of $1,000.00 or more.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Felonious False Pretense, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did obtain from ______________________________,
5.      (labor) (services), to-wit: ______________________________________________

6.      of a value of $1,000.00 or more,
7.      by falsely pretending and representing to ________________________________,
8.      that _____________________________________________________________ ________________________________________________________________________
9.      which pretense and representation did induce ______________________________ to provide said (labor) (service),
10.      with intent at that time to defraud and permanently deprive ______________________________ thereof.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Felonious False Pretense, you may find ______________________________ guilty as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Felonious False Pretense, you shall find the Defendant ______________________________ not guilty.

COMMENT

FELONIOUS FALSE PRETENSE OF LABOR AND SERVICES    


1.      W.Va. Code §61-3-24(d).
2.      State v. Barnes, 177 W.Va. 510, 354 S.E. 2d 606 (1987), State v. Moore, 166 W.Va. 97, 273 S.E. 2d 821 (1980); State v. Martin, 103 W.Va. 446, 137 S.E. 885 (1927). These cases discuss the elements of the crime of obtaining Money, Goods or Property By False Pretenses.
3.      State v. West, 157 W.Va. 209, 200 S.E. 2d 859 (1973); State v. Smith, 97 W.Va. 313, 125 S.E. 90 (1924); State v. Pishner, 72 W.Va. 603, 78 S.E. 752 (1913); State v. Williams, 68 W.Va. 86, 69 S.E. 474 (1910); State v. Edwards, 51 W.Va. 220, 41 S.E. 429 (1902). These cases indicate that a larceny indictment will support a False Pretenses instruction and conviction.

 

FELONIOUS FALSE PRETENSE OF LABOR AND SERVICES    

(including lesser offenses)


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Felonious False Pretense. One of three verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Felonious False Pretense; (2) guilty of Misdemeanor False Pretense and (3) not guilty.
    Felonious False Pretense is committed when any person, firm or corporation obtains from another person by any false pretense, token or representation with intent to defraud, services or labor, and which services or labor had a value of $1,000.00 or more.
    Misdemeanor False Pretense is committed when any person, firm or corporation obtains from another person by any false pretense, token or representation with intent to defraud, services or labor, and which services or labor had a value of less than $1,000.00.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Felonious False Pretense, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:

1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did obtain from ______________________________,
5.      (labor) (services), to-wit: ________________________________________________
6.      of a value of $1,000.00 or more,
7.      by falsely pretending and representing to __________________________________,
8.      that _____________________________________________________________ _________________________________________________________________________
9.      which pretense and representation did induce ______________________________ to provide said (labor) (service),
10.      with intent at that time to defraud and permanently deprive ______________________________ thereof.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Felonious False Pretense, you may find ______________________________ guilty as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Felonious False Pretense, you shall find the Defendant ______________________________ not guilty of Felonious False Pretense (and deliberate on the lesser included offense of Misdemeanor False Pretense as hereinafter instructed).

    Before the Defendant, ______________________________ can be convicted of Misdemeanor False Pretense, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did obtain from ______________________________,
5.      (labor) (services), to-wit: _____________________________________________
6.      of a value of less than $1,000.00,
7.      by falsely pretending and representing to _________________________________,
8.      that ______________________________________________________________ ________________________________________________________________________
9.      which pretense and representation did induce ______________________________ to provide said (labor) (service),
10.      with intent at that time to defraud and permanently deprive ______________________________ thereof.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Misdemeanor False Pretense, you may find ______________________________ guilty as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Misdemeanor False Pretense, you shall find the Defendant ______________________________ not guilty.

COMMENT

FELONIOUS FALSE PRETENSE OF LABOR AND SERVICES    

(with lesser included offenses)


1.      W.Va. Code §61-3-24(d).
2.      State v. Barnes, 177 W.Va. 510, 354 S.E. 2d 606 (1987), State v. Moore, 166 W.Va. 97, 273 S.E. 2d 821 (1980); State v. Martin, 103 W.Va. 446, 137 S.E. 885 (1927). These cases discuss the elements of the crime of obtaining Money, Goods or Property By False Pretenses.
3.      State v. West, 157 W.Va. 209, 200 S.E. 2d 859 (1973); State v. Smith, 97 W.Va. 313, 125 S.E. 90 (1924); State v. Pishner, 72 W.Va. 603, 78 S.E. 752 (1913); State v. Williams, 68 W.Va. 86, 69 S.E. 474 (1910); State v. Edwards, 51 W.Va. 220, 41 S.E. 429 (1902). These cases indicate that a larceny indictment will support a False Pretenses instruction and conviction.

 

MISDEMEANOR FALSE PRETENSE OF LABOR AND SERVICES     


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Misdemeanor False Pretense. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Misdemeanor False Pretense; and (2) not guilty.
    Misdemeanor False Pretense is committed when any person, firm or corporation obtains from another person by any false pretense, token or representation with intent to defraud, services or labor, and which services or labor had a value of less than $1,000.00.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Misdemeanor False Pretense, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did obtain from ______________________________,
5.      (labor) (services), to-wit: ________________________________________________

6.      of a value of less than $1,000.00,
7.      by falsely pretending and representing to __________________________________,
8.      that _______________________________________________________________ ________________________________________________________________________
9.      which pretense and representation did induce ______________________________ to provide said (labor) (service),
10.      with intent at that time to defraud and permanently deprive ______________________________ thereof.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Misdemeanor False Pretense, you may find ______________________________ guilty as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Misdemeanor False Pretense, you shall find the Defendant ______________________________ not guilty.

COMMENT

MISDEMEANOR FALSE PRETENSE OF LABOR AND SERVICES    

 1.      W.Va. Code §61-3-24(d).
2.      State v. Barnes, 177 W.Va. 510, 354 S.E. 2d 606 (1987), State v. Moore, 166 W.Va. 97, 273 S.E. 2d 821 (1980); State v. Martin, 103 W.Va. 446, 137 S.E. 885 (1927). These cases discuss the elements of the crime of obtaining Money, Goods or Property By False Pretenses.
3.      State v. West, 157 W.Va. 209, 200 S.E. 2d 859 (1973); State v. Smith, 97 W.Va. 313, 125 S.E. 90 (1924); State v. Pishner, 72 W.Va. 603, 78 S.E. 752 (1913); State v. Williams, 68 W.Va. 86, 69 S.E. 474 (1910); State v. Edwards, 51 W.Va. 220, 41 S.E. 429 (1902). These cases indicate that a larceny indictment will support a False Pretenses instruction and conviction.

 

MISDEMEANOR FALSE PRETENSE

THEFT OF SERVICES BY STOP PAYMENT ORDER     


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Misdemeanor False Pretense. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Misdemeanor False Pretense; and (2) not guilty.
    Misdemeanor False Pretense is committed when any person obtains from another person pursuant to a written or oral contract, labor or services or other thing of value provided in good faith and in substantial performance of said contract, and such person having issued a check, draft or order for payment owed for the labor or services, obtains a stop payment order on the check, draft or order for payment, with fraudulent intent to permanently deprive the provider of the labor or services of the payment represented by such check, draft or order, and which labor, services or other thing obtained had a value of less than $1,000.00.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Misdemeanor False Pretense, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,

2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did obtain from _____________________________ victim,
5.      (labor) (service) to-wit: ___________________________________________ ________________________________________________________________________,
6.      pursuant to a (written) (oral) contract,
7.      that this (labor) (service) was provided to the Defendant in good faith and in substantial performance of said contract,
8.      and that the Defendant did issue to ______________________________victim a (check) (draft) (order of payment) therefore,
9.      and that the Defendant did thereafter obtain a stop payment order on the (check) (draft) (order of payment)
10.      with fraudulent intent to permanently deprive ______________________________victim of the payment represented by such (check) (draft) (order of payment).
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Misdemeanor False Pretense, you may find ______________________________ guilty as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Misdemeanor False Pretense, you shall find the Defendant ______________________________ not guilty.

COMMENT

MISDEMEANOR FALSE PRETENSE

THEFT OF SERVICES BY STOP PAYMENT ORDER    


1.      W.Va. Code §61-3-24(d) and (e).
2.      State v. Barnes, 177 W.Va. 510, 354 S.E. 2d 606 (1987), State v. Moore, 166 W.Va. 97, 273 S.E. 2d 821 (1980); State v. Martin, 103 W.Va. 446, 137 S.E. 885 (1927). These cases discuss the elements of the crime of obtaining Money, Goods or Property By False Pretenses.
3.      State v. West, 157 W.Va. 209, 200 S.E. 2d 859 (1973); State v. Smith, 97 W.Va. 313, 125 S.E. 90 (1924); State v. Pishner, 72 W.Va. 603, 78 S.E. 752 (1913); State v. Williams, 68 W.Va. 86, 69 S.E. 474 (1910); State v. Edwards, 51 W.Va. 220, 41 S.E. 429 (1902). These cases indicate that a larceny indictment will support a False Pretenses instruction and conviction.

 

FELONIOUS FALSE PRETENSE

COLLECTING PREVIOUSLY ASSIGNED CLAIM     


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Felonious False Pretense. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Felonious False Pretense; and (2) not guilty.
    Felonious False Pretense is (also) committed when any person obtains from another person by any false pretenses, token or representation, with the intent to defraud, any money, goods or other property which may be the subject of larceny, on credit, by representing that money is due to him or to become due to him, and shall assign his claim for money in writing to another person, and then afterwards collect this claim for money without the consent of the assignee, which money, goods or other property had a value of $1,000.00 or more.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Felonious False Pretense, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,

3.      on or about the _____ day of _______________, 199__,
4.      did obtain from _____________________________ victim, on credit
5.      (money) (goods) (other property)describe ______________________________________
6.      of a value of $1,000.00 or more,
7.      which (money) (goods) (property) belonged to ______________________________________victim,
8.      by assigning to ______________________________victim in writing a claim for money, to-wit: describe claim _________________________________________________________
9.      by falsely pretending and representing to ______________________________ victim,
10.      that said claim for money was due or to become due to him,
11.      which pretense and representation did induce ____________________________ victim to part with said (money) (goods) (property),
12.      and the Defendant did, after said assignment, collect said money assigned,
13.      with intent at that time to defraud and permanently deprive ______________________________ thereof.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Felonious False Pretense, you may find ______________________________ guilty as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Felonious False Pretense, you shall find the Defendant ______________________________ not guilty.

COMMENT

FELONIOUS FALSE PRETENSE

COLLECTING PREVIOUSLY ASSIGNED CLAIM    

(without lesser included offenses)


1.      W.Va. Code §61-3-24(a)(2) and (a)(3).
2.      State v. Barnes, 177 W.Va. 510, 354 S.E. 2d 606 (1987), State v. Moore, 166 W.Va. 97, 273 S.E. 2d 821 (1980); State v. Martin, 103 W.Va. 446, 137 S.E. 885 (1927). These cases discuss the elements of the crime of obtaining Money, Goods or Property By False Pretenses.
3.      State v. West, 157 W.Va. 209, 200 S.E. 2d 859 (1973); State v. Smith, 97 W.Va. 313, 125 S.E. 90 (1924); State v. Pishner, 72 W.Va. 603, 78 S.E. 752 (1913); State v. Williams, 68 W.Va. 86, 69 S.E. 474 (1910); State v. Edwards, 51 W.Va. 220, 41 S.E. 429 (1902). These cases indicate that a larceny indictment will support a False Pretenses instruction and conviction.

 

 

MISDEMEANOR FALSE PRETENSE

COLLECTING PREVIOUSLY ASSIGNED CLAIM     


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Misdemeanor False Pretense. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Misdemeanor False Pretense; and (2) not guilty.
    Misdemeanor False Pretense is committed when any person obtains from another person by any false pretenses, token or representation, with the intent to defraud, any money, goods or other property which may be the subject of larceny, on credit, by representing that money is due to him or to become due to him, and shall assign his claim for money in writing to another person, and then afterwards collect this claim for money without the consent of the assignee, which money, goods or other property had a value of less than $1,000.00.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Misdemeanor False Pretense, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,

3.      on or about the _____ day of _______________, 199__,
4.      did obtain from ____________________________________ victim, on credit
5.      (money) (goods) (other property) describe______________________________________
6.      of a value of less than $1,000.00,
7.      which (money) (goods) (property) belonged to ___________________________victim,
8.      by assigning to ______________________________victim in writing a claim for money, to-wit: describe claim _________________________________________________________
9.      by falsely pretending and representing to ______________________________ victim,
10.      that said claim for money was due or to become due to him,
11.      which pretense and representation did induce ____________________________ victim to part with said (money) (goods) (property),
12.      and the Defendant did, after said assignment, collect said money assigned,
13.      with intent at that time to defraud and permanently deprive ______________________________ thereof.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Misdemeanor False Pretense, you may find ______________________________ guilty as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Misdemeanor False Pretense, you shall find the Defendant ______________________________ not guilty.

COMMENT

MISDEMEANOR FALSE PRETENSE

COLLECTING PREVIOUSLY ASSIGNED CLAIM    


1.      W.Va. Code §61-3-24(a)(2) and (a)(3).
2.      State v. Barnes, 177 W.Va. 510, 354 S.E. 2d 606 (1987), State v. Moore, 166 W.Va. 97, 273 S.E. 2d 821 (1980); State v. Martin, 103 W.Va. 446, 137 S.E. 885 (1927). These cases discuss the elements of the crime of obtaining Money, Goods or Property By False Pretenses.
3.      State v. West, 157 W.Va. 209, 200 S.E. 2d 859 (1973); State v. Smith, 97 W.Va. 313, 125 S.E. 90 (1924); State v. Pishner, 72 W.Va. 603, 78 S.E. 752 (1913); State v. Williams, 68 W.Va. 86, 69 S.E. 474 (1910); State v. Edwards, 51 W.Va. 220, 41 S.E. 429 (1902). These cases indicate that a larceny indictment will support a False Pretenses instruction and conviction.