delivered the opinion of the Court :

Undoubtedly, defendant made exaggerated statements as to what the battery could or would accomplish. But, in establishing a fraudulent intent, the circumstances under which the statements are made, the relation of the parties, and the ability of the parties to deal at arm’s length, are important. It is for this reason that we have detailed the evidence at length.

Coming to the assignments of error, it will be unnecessary, in our view of the case, to review them all. Material error was committed in admitting, over the objection and exception *475of defendant’s counsel, 'the testimony of the witness Wenner, who testified that he is a physicist in the Bureau of Standards; that he witnessed a demonstration of the battery at the factory in company with a man named Canada, and that the demonstration was made by one Normandy, an employee at the factory, who stated that “the claim was made that the battery would replace the ordinary means for supplying heat and light to houses and also that it would replace the ordinary means for propelling vehicles of the automobile type, and also trains.” This statement was not shown to have been made, either in the presence or hearing of defendant, or by his authority. It was, therefore, hearsay, and erroneously admitted.

We think, however, that the case falls within a broader scope. False pretense or representation within the meaning of the law must relate to some subsisting fact, past or present. A statement as to the future by way of opinion or expectation as to what can be accomplished does not constitute false pretense. Defendant never stated that the battery had accomplished the things ho is alleged to have said it would. He had never heated a building nor propelled an automobile to the Pacific coast with it. Indeed, Nicol testified that he represented to him that to accomplish these things he intended to enlarge it “by increasing the number of cells and putting them together by means of which he would remove the internal resistance.”

Nor do we attach great importance to the statement that it was “a perfected invention,” or “a battery that was perfect.” The court below stated to the jury in the charge that “this primary battery is an ordinarily good primary battery.” One of the experts stated that the primary cell “is far superior to any other primary cell on the market.” The Nicols examined the papers in the Patent Office, and acquainted themselves with the invention for which defendant had applied for a patent. They saw the invention; they saw what it would do; they saw the invention, so far as perfected, tested by experts; they had the reports of the experts, and they knew of the proposed Bureau of Standards test which brought discredit upon the enterprise. Notwithstanding they knew this test was being made, they paid *476tbeir money without waiting for a report. The letters of the Nicols, written to prospective purchasers of stock, as well as the lectures of defendant, contained much of what is called by the courts “dealers’ talk” or “barters’ talk,” more properly denominated in this case as “inventor’s talk” or “promoter’s talk.”

Considering the relation of the parties and their conduct in respect of this transaction, we deem it unnecessary to decide whether representations such as were alleged to have been made by defendant would, under any circumstances, constitute false pretense. It is sufficient to say that in this case the government has failed to establish that degree of criminal intent essential to sustain a judgment of guilt.

The judgment is reversed, and the cause is remanded for further proceedings. Reversed and remanded.