"To constitute this crime there must always be a false representation or statement as to a _fact_, and that _fact_ must be a _past_ or an _existing fact_. These are plain statements of ancient and well settled law, and laid here in this brief, almost in the exact language of our courts. "In this case the vital element of crime is wanting. The evidence fails utterly to show false representation as to any _existing fact_. The prisoner, Barker, at the time of the transaction, positively disclaimed any knowledge of the child, or any ability to produce it. What he did represent was that he would know, and that he would perform certain things, in the future. The question of remoteness is irrelevant. It is immaterial whether the future time be removed minutes or years. "The false representation complained of was wholly in regard to a future transaction, and essentially promissory in its nature, and such a wrong is not, and never has been, held to be the foundation of a criminal charge." "But, if your Honor please," said the senior counsel for the People, rising, "is it not clearly evident that the prisoner, Barker, began with a design to defraud; that that design was present and obtained at the time of this transaction; that a representation was made to Rockham for the purpose of convincing him that there then existed a _bona fide_ intention to produce his child; that money was obtained by false statements in regard to this intention then existing, when in fact such intention did not exist and never existed, and statements made to induce Rockham to believe that it did exist were all utterly false, fraudulent, and delusive? Surely this is a crime." The attorney sat down with the air of one who had propounded an unanswerable proposition. The Judge adjusted his eyeglasses and began to turn the pages of a report. "I read," he said, "from the syllabus of the case of The People of New York vs. John H. Blanchard. 'An indictment for false pretences may not be founded upon an assertion of an existing intention, although it did not in fact exist. There must be a false representation as to an existing fact.' "Your statement, sir, in regard to intention, in this case is true, but it is no element of crime." "But, sir," interposed the counsel for the People, now fully awake to the fact that Barker was slipping from his grasp, "I ask to hold this man for conspiracy and as a violator of the Statute of Cheats." "Sir," said the Judge, with some show of impatience, "I call your attention to Scott's case and the leading case of Ranney. In the former, the learned Court announces that if the false and fraudulent representations are not criminal there can be no conspiracy; and, in the latter, the Court says plainly that false pretences in former statutes, and gross fraud or cheat in the more recent acts, mean essentially the same thing.