Imágenes de páginas
PDF
EPUB

CHAPTER XVIII.

CHEATS.

I. CHEATS AT COMMON LAW. Cheats affecting public justice are indictable, § 1117.

And so of cheats by false tokens and devices calculated to affect public, § 1118.

But not by short weight without

false token, § 1119.

Adulterations must be latent, directed to public in general, § 1120.

Cheats by public false news may

be indictable, § 1121.

And so of false dice, § 1122.
And so of false notes calculated to
affect public at large, § 1123.
And so of false personation, § 1124.
And so of false stamps and trade-
marks, and author's name, §
1125.

But not cheats whose falsity is not
latent or addressed to the public
at large, § 1126.
False pretences not cheats, §
1126 a.

Nature of distinction between pub-
lic and private cheats, § 1127.
When only possession is obtained,
offence may be larceny, § 1127 a.
Indictment for public cheat need

not name party cheated, § 1128. Mode of cheating should be specified, § 1129.

II. STATUTORY CHEATS BY FALSE PRE

TENCES.

1. General Rules of Construction. Statutes are to be construed in accordance with object, § 1130.

2. Character of the Pretences. Pretence that defendant was a person of wealth and credit is within statute, § 1135.

And so that defendant posesessed certain specified assets, § 1136. So when negotiable paper is obtained, § 1137.

And so when indorsement is obtained, § 1138.

So generally as to defendant's status, § 1139.

So as to pretension to supernatural power, § 1140.

So as to pretence that defendant had delivered certain goods, or paid certain money, § 1141.

That defendant was sent for
certain goods, § 1142.
Of being a certain physician,
§ 1143.

That defendant represented a
principal of means or influ-
ence, § 1144.

That defendant was an auctioneer in search of a clerk, or a storekeeper, § 1145. That defendant was a certain attorney, § 1146.

That defendant was a certain

payee, § 1147.

That defendant was unmar

ried, § 1148.

That defendant had certain

legal rights, § 1149.

That the defendant had claims

against prosecutor, § 1150. That defendant could settle a prosecution against prosecutor, § 1151.

That defendant was an "Oxford student," or "clergyman," or officer," § 1152. False begging letters may be within statute, § 1153.

A false pretence is to be distin

guished from a puff, § 1154. Mere exaggerated praise is not a false pretence, § 1155.

But otherwise as to false sample, § 1156.

Opinions are not always pretences, § 1157.

But use of false brand is within

statute, § 1158.

And so of statement as to specific weight, § 1159.

And so of statement as to property

offered for loan or sale, § 1160. And so of false warranty, § 1161. And so of negotiating worthless or spurious paper, § 1162. And so of uttering post-dated cheque, § 1163.

Obtaining money by forged paper not larceny but false pretences, § 1164.

False returns by officers of govern

ment a statutory offence, § 1164 a. 3. Falsity of the Pretences.

Only strong probability of falsity

need be shown, § 1165.

Burden of negative is on prosecution, § 1166.

Pretence must be squarely negatived, § 1167.

Sufficient to disprove one pretence, § 1168.

Expecting to pay is no negation, §

1169.

4. Pretences need not be in Words. Conduct is a sufficient pretence, § 1170.

5. Need not be by Defendant Personally.

Pretence by one confederate is pre

tence by all, § 1171.

Confederacy must be first shown, 1172.

6. They must relate to a Past or Pres

ent State of Things.

Promises or predictions are not false pretences, § 1173.

But false pretence is not neutralized by concurrent promise, § 1174.

7. They must have been the Operative Cause of the Transfer.

Unless operative not within stat

ute, § 1175.

But need not be the sole motive, § 1176.

Must have been before bargain closed, § 1177.

Verification by prosecutor may be a defence, § 1178.

Pretence must operate as direct cause and property must have been transferred, § 1179. No defence that goods were obtained mediately through contract, § 1180.

False accounts of payments may be a pretence, § 1181. Prosecutor may be witness to prove preponderating influence, § 1182.

Necessary that prosecutor should have believed the representations, § 1183.

8. Intent.

Intent to be inferred from facts, § 1184.

To compel payment of debt, § 1184 a.

Proof of system admissible, § 1184 b.

Purpose to indemnify no defence, § 1184 c.

9. Scienter.

Defendant must be shown to have known falsity of pretences, §

1185.

10. Prosecutor's Negligence or Misconduct.

Prosecutor not required to show diligence beyond his opportunities, § 1186.

His contributory negligence to be determined by his lights, § 1188. Carelessness amounting to consent estops prosecutor, § 1189. Trap is no defence, § 1190. That prosecutor made false representations is no bar, § 1191. Nor is prosecutor's gross credulity, § 1192.

But "brag" and loose talk are not within statute, § 1193. Indebtedness of prosecutor to de

fendant is no defence, § 1194.

[blocks in formation]

§ 1116. CHEATS, punishable at common law, are such cheats (not amounting to felony) as are effected by deceitful or illegal symbols

I See, for forms of indictment, Whart. Prec. tit. CHEATS..

or tokens which may affect the public at large and against which common prudence could not have guarded.1

fecting public justice indict

able.

§ 1117. Cheats affecting public justice, thus executed, have Cheats af- always been held misdemeanors. Thus where a person committed to jail under an attachment for a contempt in a civil cause counterfeited a pretended release, as from his creditor, to the sheriff and jailer, under which he obtained his discharge, he was held guilty of an offence at common law, in thus effecting an interruption of public justice; although the attachment not being for non-payment, the order was, in itself, a mere nullity, and no warrant to the sheriff for the discharge. Obtaining the queen's bounty for enlisting as a soldier, by an apprentice reclaimable by his master, is also an offence at common law.3 And so where a person, pretending that he had power to discharge soldiers, took money of another to discharge him as a soldier.1

§ 1118. Independently, however, of cheats affecting the administration of public justice, frauds effected by any general And so of false device or token, calculated to affect the public, are false tokens punishable at common law. Thus, selling unwholesome

cheats by

12 East P. C. c. 18, s. 4, p. 821; 2 Hawk. P. C. c. 22, s. 1; 2 Russ. on Cr. 6 Am. ed. 275; U. S. v. Watkins, 3 Cranch C. C. 441; Cross v. Peters, 1 Greenl. 387; Com. v. Hearsey, 1 Mass. 137; Com. v. Morse, 2 Mass. 139; Com. v. Warren, 6 Mass. 72; People v. Babcock, 7 Johns. 201; People v. Miller, 14 Johns. 371; Lambert v. People, 9 Cow. 588; People v. Stone, 9 Wend. 187; State v. Wilson, 2 Mill's Rep. Con. Ct. 135; State v. Vaughan, 1 Bay, 282; Hill v. State, 1 Yerg. 76; Com. v. Speer, 2 Va. Cas. 65; State v. Stroll, 1 Rich. 244; State v. Patillo, 4 Hawks, 348.

As to Texas statute against "swindling," see Popinaux v. State, 12 Tex. Ap. 140; Davison v. State, Ibid. 214. The subject is discussed with much

ability in Lord Macaulay's report on the Indian Code, title "Cheats."

2 R. v. Fawcett, 2 East P. C. 862; and see O'Mealy v. Newell, 8 East, 364; 1 Russ. on Cr. 275, 6th ed.; and see, as to falsely personating bail, 1 Burn's, J. P. 330.

3 R. v. Jones, 2 East P. C. 822; 1 Leach, 174.

4 Serlestead's Case, 1 Latch, 202.

Sir J. F. Stephen's definition, Dig. C. L. art. 338, is as follows:

"Every one commits the misdemeanor called cheating who fraudulently obtains the property of another by any deceitful practice, not amounting to felony, which practice is of such a nature that it directly affects, or may directly affect the public at large. But it is not cheating, within the meaning

and devices calculated

to affect public.

provisions, without notice, has been held a misdemeanor, though perhaps the reason of this may be that such an act is a nuisance as well as a cheat. So the defendant being indicted for changing corn given to be ground, and returning bad, the indictment was held good; for "being a cheat in the way of trade, it concerned the public."2

But not by

sure without false token.

§ 1119. It is not, however, an offence at common law to sell provisions with short measure, where no false weight or token is used. In an early case in Pennsylvania, it is short meatrue, an indictment was sustained against a baker, in the employ of the United States army, for baking two hundred and nineteen barrels of bread, and marking them as weighing eighty-eight pounds each, when in fact they severally weighed but sixty-eight pounds; but here there was a false token placed by the defendant upon the barrels as a mass, and this false token was equivalent to a false measure. In 1855 the whole subject of selling under weight, to a public institution, was under consideration before the English Court of Appeals, and it was then held, that though

of this article, to deceive any person in any contract or private dealing by lies, unaccompanied by such practices as aforesaid."

livering a mixture of oat and barley
meal. R. v. Haynes, 4 M. & S. 214.
"Selling as a Winchester bushel a
sack of corn which is not a Winchester

The following are among the illus- bushel, but greatly deficient.
trations given by him :-
ney's Case, 2 East P. C. 818."

[blocks in formation]

"Selling clothing with the alnager's seal forged upon it. 2 Russ. Cr. 609. "Selling a picture by means of an imitation of the name of a well-known artist inscribed upon it. R. v. Closs, D. & B. 460.

"Maiming one's self in order to have a pretext for begging. 1 Hawk. P. C. 55; 2 Russ. Cr. 609.

"Selling unwholesome bread as if it were wholesome. 2 East P. C. p. 822; R. v. Dixon, 3 M. & S. 11."

On the other hand, the following cases have been held not to be cheats at common law :

Pink

[blocks in formation]
[ocr errors]

'Receiving barley to grind, and de- Am. ed. 605 et seq.

« AnteriorContinuar »