such a sale is indictable as a false pretence, it is not cognizable at common law unless a false measure is used.1 Adultera tions, to be indictable, must be latent, directed to the public generally. § 1120. It is not indictable at common law for a miller, receiving good barley at his mill, to deliver a musty and unwholesome mixture of oat and barley meal, differing from the produce of the barley; and Lord Ellenborough, C. J., in a case of this class, said: "The allegation that the quantity (of meal) delivered was musty and unwholesome, if it had alleged that the defendant delivered it as an article for the food of man, might possibly have sustained the indictment; but I cannot say that its being musty and unwholesome necessarily and ex vi termini imports that it was for the food of man; and it is not stated that it was to be used for the sustentation of man, only that it was a mixture of oat and barley meal. As to the other point, that this is not an indictable offence, because it respects a matter transacted in the course of trade, and where no tokens were exhibited by which the party acquired any greater degree of credit; if the case had been that this miller was owner of a soke-mill, to which the inhabitants of the vicinage were bound to resort in order to get their corn ground, and that the miller, observing the confidence of this, his situation, had made it a color for practising a fraud, this might have presented a different aspect; but as it is, it seems no more than the case of a common tradesman who is guilty of fraud in a matter of trade or dealing." Putting a stone, also, in a single pound of butter, has been held not indictable at common law, the offence not being of such a general character as to make it a common law cheat.3 Yet it is otherwise where an adulteration is latent, so that no suspicion is aroused by it, and is diffused, so as to address the public as such. Thus it has been held an indictable offence at common law for a baker to sell bread containing alum, which renders it noxious, although he gave directions to his servants to mix the alum. in a manner that would have rendered it harmless. And even 1 R. v. Eagleton, 33 Eng. L. & Eq. 545; 6 Cox C. C. 559; S. P., Hartman v. Com., 5 Barr, 60. See infra, § 1127. 2 R. v. Haynes, 4 M. & S. 214. See, also, R. v. Eagleton, 33 Eng. L. & Eq. 545; 6 Cox C. C. 559. 3 Weierbach v. Trone, 2 W. & S. 408. See Com. v. Warren, 6 Mass. 72; 2 Russ. on Crimes, 6th Am. ed. 276. 4 R. v. Dixon, 4 Camp. 122; 3 M. & Infra, § 1126. S. 11. latency is not a necessary requisite when the use of the adulterated. product is compulsory. Thus an indictment will lie for wilfully, deceitfully, and maliciously supplying prisoners of war with unwholesome food, not fit to be eaten by man.1 Cheats by public false news may be indict able. § 1121. Writers of false news are indictable for its publication, as an offence at common law, when such publication is likely to affect injuriously the public, or to provoke a breach of the peace; and it may also be held that the fabrication of false news, calculated to produce any public detriment, is an indictable offence. Yet here again must we apply the tests already given. (e. g., got up in such a way as not to manifestly excite the suspicions of the public), and it must be addressed to the public at large. In this way, the false but skilful dissemination of a report of the loss of a steamer, so as to make money out of the depression of the stock, would be a cheat at common law. The falsity must be latent And so of § 1122. As long as there is no statute giving an illicit taint to the use of dice in public places, and hence nothing to legitimately throw suspicion upon those offering to play false dice. with dice, it is indictable at common law to employ false dice, offering to play with whomsoever may come.3 And so of calculated to affect public at large. § 1123. As to false notes, also, must be invoked the tests of latency and publicity of aim, both of which must exist in an indictable common law cheat. In the case of a person false notes offering to another a cheque on a bank where he has no funds, neither of these ingredients exists. The fraud is not so latent as not to call up inquiry, for the very fact of a man offering his own paper is notice putting the person to whom the paper is offered on his guard. The fraud is not addressed to the public at large, but only to the person invited to take the cheque. Hence, passing such a cheque on an individual is not a cheat at common law.1 1 Treeve's Case, 2 East P. C. 821. duce disaffection is indictable. Steph. Infra, § 1434. Dig. C. L. art. 95. Infra, § 1448. 2 See Stark. Libel, 546; 2 Russ. Cr. 278; State v. Williams, 2 Tenn. 108. Infra, § 1442. Under 3 Edw. I. c. 34, spreading false news in order to pro 3 R. v. Lesser, Cro. Jac. 497; R. v. Madox, 2 Roll. R. 107. 4 R. v. Jackson, 3 Camp. 370; R. v. Wavell, 1 Moody, 224; R. v. Lara, 6 But it is otherwise when there are issued false bank notes so closely resembling genuine bank notes as to deceive the public at large. Here there is latency, for there is nothing on the face of the transaction to invite inquiry; and here the offence is addressed to the public at large, for no one gets up such notes to cheat solely a particular individual. We have here, therefore, the essentials of a cheat at common law.1 And so of false personation. § 1124. The apparent obscurity in the cases of cheats by false personation is removed by the application of the same tests. If a pretender (e. g., Perkin Warbeck, or the Tichbourne claimant) palm himself off on a community as another person, and under the guise of his assumed character obtain credit from the public at large, he is indictable as a cheat, assuming that he imposes upon persons who have no notice that his claims are disputed, and also that he addresses his imposture to the public at large. The offence is then one aimed at the public generally, and is, supposing there is no notice to put others on their guard, aimed as much at the careful as the careless. Hence it is a cheat at common law. The same rule applies when a person, apparently a major, gets money from the public at large as a major, T. R. 565. See Ranney v. People, 22 N. Y. 413; State v. Allred, 84 N. C. 749. See, however, R. v. Thorn, C. & M. 206, where it was held that false personation, coupled with a false order, is a common law cheat. 1 Com. v. Boynton, 2 Mass. 77. ment purporting to be a five dollar bill of the Bank of Tallahassee, in Florida, the blanks of which were filled up, except those opposite the words "Cashier" and "President;" but in these blanks an illegible scrawl was written, which, on careless inspection, might have been mistaken for the names of those officers and the defendants knew, before they passed the instrument, that it was worthless; it was held, in South Carolina, that they were guilty, at common law, of cheating by a false token. State v. Stroll, 1 Rich. 244. And such is the law in Pennsylvania, in respect to a counterfeit bank note of another State. Lewis v. Com., 2 S. & R. 551. As to forgery in such cases, see supra, § 660. Thus, in Virginia, it has been held that the procuring goods, etc., by means of a note purporting to be a bank note of the Ohio Exporting and Importing Company, there being no such bank or company, is a cheat, punishable by indictment at common law, if the defendant knew that it was such a false note. It is necessary, in such case, to aver the scienter in the indictment. Com. v. Speer, 2 Va. Cas. 65; State v. Grooms, 5 Strob. 158; supra, § 748; but see State v. Patillo, 4 Hawks, 348. Where the defendants purchased goods from the prosecutor's clerk, and gave in payment an instru- § 1149. 2 As to false personation under statutes, see infra, §§ 1135, 1139, 1149. As to false pretence of infancy, see infra, when really a minor; and when a married woman obtains general credit by pretending to be unmarried. But suppose the pretender goes simply to an individual, and with that individual uses his pretended character as a basis for getting money, while there is nothing about the pretender's appearance or general reputation to sustain such character. In such case, there being no latency, since there is a direct subject tendered to the prosecutor on which to make inquiry, and the fraud being pointed at a single individual, it is not a cheat at common law.3 And so of false stamps and trademarks, and authors' § 1125. A false stamp or trade-mark, so made as to deceive the public generally, is clearly on this reasoning indictable.1 More doubtful is an English ruling, that it is a cheat at common law for a painter falsely to put the name of an old master on a copy. Yet this may be accepted on the supposition that the work was skilfully and subtly done, so as to give no notice of falsity, and the fraud was addressed to the public at large, by means of its adoption as a trade by the fabricator, enabling him to throw fraudulent pictures generally on the market. if names. cheats whose fal sity is not latent, and addressed § 1126. Indictability, therefore, cannot be predicated of cheats where the falsity is not latent, and the fraud not addressed But not to the public at large; e. g., false warranties, reading false papers to an individual and obtaining his signature, and false pretences to an individual. In other words, a cheat is not of such a general character as to address to the pubthe public, and is not executed by means of latent false devices, it is not indictable at common law ; for, as has tences not been seen, if, without false weights, a party sells to another a less quantity than he pretends to sell, it is no public offence." Thus falsely warranting an unsound horse to be sound, knowing it 1 See 1 Gab. Cr. L. 204. lic at large; False pre cheats. Watkins, 3 Ibid. 441: Ranney v. Peo R. v. Hanson, Say. 229; 2 East P. ple, 22 N. Y. 413; Wright v. People, Breese, 66; State v. Stroll, 1 Rich. 244. C. 821; Trem. P. C. 101, 102. * See 1 East P. C. 1010. 4 See 2 East P. C. 820; Whart. Confl. of Laws, § 326. 5 R. v. Closs, Dears. & B. C. C. 460. * R. v. Wheatley, 1 W. Bl. 273, Burr. 1125; U. S. v. Porter, 2 Cranch C. C. U. S. v. Hale, 4 lbid. 83; U. S. v. 60; R. v. Young, 3 T. R. 104; R. v. Eagleton, 33 Eng. L. & Eq. 540; 6 Cox C. C. 559; Hartman v. Com., 5 Barr, 60; State v. Justice, 2 Dev. 199. Supra, § 1121. to be otherwise, is no offence at common law, unless there be a conspiracy to defraud, and then an indictment might stand for a conspiracy. Nor is it an offence to cause an illiterate person to execute a deed to his prejudice, by reading it over to him in words different from those in which it is written, unless there be a conspiracy.2 On the same reasoning, the deceitful receiving of money from one man for the use of another, upon a false pretence of having a message and order to that purpose, is not an offence at common law in a private transaction, because it is accompanied with no manner of artful contrivance, but only depends on a bare naked lie; and it was supposed to be needless to attach punishment to such mischief, against which common prudence and caution might be a sufficient security. On the same principle, it is not indictable at common law to get possession of a note, under pretence of wishing to look at it, and then to carry it away, and refuse to return it; nor to pretend to have money ready to pay a debt, and thereby obtain a receipt in discharge of the debt, without paying the money; nor to obtain, in violation of an agreement, and by false pretences, possession of a deed lodged in a third person's hand as an escrow ; nor to obtain goods on credit by falsely pretending to be in trade, keeping a grocery shop, and by giving a note for the goods in a fictitious name; nor to put a stone into a pound of butter so as to increase 1 R. v. Pywell, 1 Stark. 402; State r. Delyon, 1 Bay, 353; and see R. v. Codrington, 1 C. & P. 661. See 2 East P. C. c. 18, s. 5, p. 823; 1 Hawk. c. 71, s. 1; and see R. v. Paris, 1 Sid. 431; Com. v. Sankey, 22 Penn. St. 390; Wright v. People, 1 Breese, 66; State v. Justice, 2 Dev. 199; per contra, State v. M'Leran, 1 Aiken, 311; Hill v. State, 1 Yerg. 76, where the ignorance of writing of the party defrauded was held to constitute the cheat. See comments on these cases, 1 Ben. & H. Lead. Cas. 16; and see supra, §§ 674, 676, 702. Where two persons pretended, the one to be a merchant, the other a broker, and, as such, bartered bad wine for hats, it was considered that they were guilty of the offence of a conspi- 91 Hawk. c. 71, s. 2; 2 East P. C. 4 People v. Miller, 14 Johns. 371. Com. v. Warren, 6 Mass. 72. See |