its weight; nor to obtain money by falsely representing a spurious note of hand to be genuine ; nor to obtain goods by falsely pretending to be sent by a third person. Undoubtedly there are old cases which seem to give a wider scope to common law cheats. These cases, however, were before the statutes making false pretences indictable, and thereby settling on a clear and permanent basis the distinction between cheats at common law and statutory cheats by false pretences.* Nature of between private public and cheats. § 1127. The reasons for the distinction between public and private cheats are thus given by Lord Mansfield in a case where the defendant was convicted of selling beer short of the distinction due and just measure, to wit, sixteen gallons as and for eighteen. This "is only an inconvenience and injury to a private person, arising from that private person's own negligence and carelessness in not measuring the liquor upon receiv ing it, to see whether it held the just measure or not. The offence that is indictable must be such as affects the public. As if a man use false weights and measures and sell by them to all or to many of his customers, or use them in the general course of his dealing; so if a man defrauds another, under false tokens, for these are deceptions that common care and prudence are not sufficient to guard against. So if there be a conspiracy to cheat: for ordinary care and caution is no guard against this. These cases are much more than private injuries; they are public offences. But here it is a mere private imposition or deception; no false weights or measures are used; no false tokens given; no conspiracy; only an imposition on the 1 Weierbach v. Trone, 2 W. & S. 408. Supra, § 1120. State v. Patillo, 4 Hawks. 348. See Com. v. Speer, 2 Va. Cas. 65; State v. Stroll, 1 Rich. 244. 3 Iu a case where this was decided the court said: "We are not to indict one man for making a fool of another; let him bring his actions." R. v. Jones, 2 Ld. Raym. 1013; 1 Salk. 379; 6 Mod. 105, S. C.; and see R. v. Bryan, 2 Strange, 866; R. v. Gibbs, 1 East, 173. That this may be larceny, see supra, § 916. It seems the same doctrine will hold good, though the defendant made use of an apparent token, which in * See R. v. Searlestead, 1 Latch, 202; R. v. Jones, 2 East P. C. 822; R. v. Mawbey, 6 T. R. 619; People v. Gates, 13 Wend. 311. person he was dealing with, in delivering him a less quantity instead of a greater, which the other carelessly accepted. It is only a non-performance of his contract; for which non-performance the other may bring his action. The selling an unsound horse for a sound one is not indictable; the buyer should be more upon his guard." The distinction which is laid down as proper to be attended to in all cases of this kind is this: that in impositions or deceits where common prudence may guard persons against their suffering from them, the offence is not indictable; but where false weights and measures are used, or false tokens produced, or such methods taken to cheat and deceive, as people cannot by any ordinary care or prudence be guarded against, then it is an offence indictable. The same position has since been repeatedly reaffirmed." When only § 1127 a. Where, by means of the cheat, possession only of goods is obtained, the owner retaining the property, and afterwards the property is feloniously appropriated by the taker, this is larceny; and if the indictment be for the cheat, there is at common law a merger in those jurisdictions where cheats are only misdemeanors. § 1128. It has been said in Tennessee, under a statute, that an indictment for selling by false weights must specify the person to whom the sale was made. But this, as a common law rule, is not only inconsistent with authority, but with sound reason, if it means anything more than that when an overt act of cheating has been executed the person cheated is to be named, or averred to be unknown. For it is the essence of the common law cheat that it should be addressed to the public generally. The true course is to aver that the cheat was devised to defraud the public generally, and then to aver that it was operative in the particular case, supposing that the cheat was consummated. Indictment for public cheat need not name party cheated. § 1129. Where the fraud has been effected by false tokens, and the offence is so charged, the false tokens must be specified and set forth, and it must appear that by them the goods were obtained. 1 R. v. Wheatly, 2 Burr. 1125; 1 W. Bl. 273. 2 Supra, §§ 1117-9. Supra, § 964; infra, § 1344. State v. Woodson, 5 Humph. 55. R. v. Closs, Dears. & B. 460. 7 See State v. Corbett, 1 Jones (N. C.), 264, which case simply holds that when a cheat is executed the execution must be set forth. R. v. Closs, Dears. & B. 460. Mode of cheating It is not sufficient to allege generally that the cheat was effected by certain false tokens or false pretences. But it is unnecessary to describe them more particularly then as they were shown or described to the party at the time, in consequence of which he was imposed upon; and it is also said not to be necessary to make any express allegation that the facts set forth show a false token. To charge the defendant simply as a "common cheat" is clearly insufficient.3 should be specified. II. STATUTORY CHEATS BY FALSE PRETENCES. 1. General Rules of Construction. § 1130. By statutes existing in the several States of the American Union the obtaining goods by false pretences is made indictable. The object of these statutes was not to expand the common 12 East P. C. c. 18, s. 13, p. 837. 2 Ibid. p. 838. Infra, §§ 1213 et seq. $ State v. Johnson, 1 Chipm. 129. 4 The statute of 30 Geo. II. c. 24, the original from which most of our statutes are drawn, after reciting that divers evil-disposed persons had, by various subtle stratagems, etc., fraudulently obtained divers sums of money, etc., to the great injury of industrious families, and to the manifest prejudice of trade and credit, enacts : obtain from any other person any chattels, money, or valuable security, with intent to cheat or defraud any person of the same," such person shall be guilty of a misdemeanor, and punished as therein required: "Provided always, That if upon the trial of any person indicted for such misdemeanor, it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor; and no such indictment shall be removable by certiorari; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny on the same facts." Obtaining Goods, etc., by False Pretences."That all persons who know ingly and designedly, by false pretence or pretences, shall obtain from any person or persons money, goods, wares, or merchandise, with intent to cheat or defraud any person or persons of the same, shall be deemed offenders against law and the public peace," and shall be punished as therein required. The statute of 7 & 8 Geo. IV. c. 30, equally applying to the other. In the s. 53, provides : Same, provided if Offence amount to Larceny there be no Acquittal.—“That if any person shall by any false pretence VOL. II.-4 The distinction between the two statutes, it will be observed, consists in two features, and, with these exceptions, the interpretation given by the courts to the one may be considered as first place, by the 30 Geo. II. c. 24, the subject matter, the obtaining of which by false pretences is made indictable, is limited to "goods, wares, or mer. 49 law definition of cheats, but to create a new offence which that definition, when properly stated, did not cover. The distinction is this: No cheat is indictable at common law unless effected by conspiracy, or unless it be marked by latency, subtlety, and generality of operation, as to affect all likely to come within its range; whereas, under the statutes now before us it is made indictable to obtain money or goods from individuals by any designedly false chandise;" by the 7 & 8 Geo. IV. c. 29, s. 53, it comprises " any chattels, money, or valuable security." In the second place, what constitutes the main point of difference, and what the preamble of the latter statute indicates when it states that a failure of justice frequently arises from the subtle distinction between larceny and fraud, is, that under the 30 Geo. II. c. 24, whenever the offence on trial proved to amount to constructive larceny, the common law, by merging the misdemeanor in the felony, worked the acquittal of the defendant; whereas, by the 7 & 8 Geo. IV. c. 29, s. 53, it is provided that by reason of such merger, he shall not be entitled to acquittal. By 24 & 25 Vict. c. 96, those statutes are modified in modes hereafter noticed. "(b) 2 With intent to defraud or injure any other person by any false pretence, fraudulently causes or induces any other person to execute any valuable security, or to write, impress, or affix his name, or the name of any other person, upon any paper or parchment, in order that the same may afterwards be made or converted into, or used or dealt with as, a valuable security. "It is not an offence to obtain by false pretences any chattel which is not the subject of larceny at common law, but it is immaterial whether such a chattel so obtained is or is not in existence at the time when the false pretence is made, if the thing, when made, is obtained by the false pretence. "It is not an offence to obtain credit in a partnership account by false pre Sir J. F. Stephen thus summarizes the tence as to the amount which a partner English law on this topic: DIG. CR. L., ART. 329. Obtaining Goods, etc., by False Pretences." Every one commits a misdemeanor, and is liable, upon conviction thereof, to five years' penal servitude as a maximum punishment, who, "(a) 1 By any false pretence obtains from any other person any chattel, money, or valuable security, with intent to defraud; or who, 24 & 25 Vict. c. 96, s. 88, S. as explained by the cases. is entitled to charge against the partnership funds." To this is cited R. v. Evans, L. & C. 755, of which case Sir J. F. Stephen says he is "unable to follow the reasoning of this judgment." As to Maine, see State v. Mills, 17 2 Ibid. s. 90, S. This section was meant to cover such cases as R. v. Danger, D. & B. 307, and greatly extends the old law on the subject. See Mr. Greaves's note to the section in his edition of the Acts. 3 Make, accept, indorse, or destroy the whole or any part of. 4 Or of any company, firm, or copartnership, or the seal of any body corporate, company, or society. statements of facts likely, under the particular circumstances of the case, to deceive.1 Before proceeding to an analytical examination of the constituent elements of the statutes, it may not be out of place to notice some of their general features, as judicially settled. Me. 211. In Connecticut, the statute (title 21, § 114, ed. 1835) embraces the provisions of 33 Hen. VIII., 32 Geo. II. and 52 Geo. III.; and the English decisions are there adopted. State v. Rowley, 12 Conn. 101. By the N. Y. Penal Code of 1882, § 541, larceny, embezzlement, and obtaining goods by false pretences are made a common offence, under the title of larceny. (See supra, §§ 888, 1009, 1029.) For prior statutes, see Fay's Dig. 272; People v. Crissie, 4 Denio, 525; People v. Galloway, 17 Wend. 540. But while obtaining goods by false pretences is thus called larceny, its former characteristics are retained. Under the Virginia statute an indictment for the offence may be either in the form of indictment for larceny at common law, or by charging the specific facts which the act declares shall be deemed larceny. Leftwich v. Com., 20 Grat. 716. By prior statute in Virginia, the merely giving a man's own draft on a banker in whose hands the drawer has no funds is no more than his bare assertion that the money will be paid. Com. v. Speer, 2 Va. Cas. 65; Ibid. 146, 151. But an indictment was held good which alleged the obtaining from the Bank of Virginia, by false pretence, of "fifty dollars in money, current in the Commonwealth of Virginia, although it was contended that, as the preamble of the statute recited a preëxisting evil, etc., as the cause of its enactment, it could not extend to banks which did not exist in Virginia until many years after the date of the statute. Com. v. Swinney, 1 Va. Cas. 150, 151. See, also, State v. Patillo, 4 Hawks, 348. In Vermont, under a statute limited to false tokens, it was held that fraudulent and false representations of a man's property and resources were not indictable; the language of the statute being narrower than that of 30 Geo. II. State v. Sumner, 10 Vt. 599. Subsequently, however, the statute was amended by introducing the words "false pretences." The statute 33 Hen. VIII. has been recognized in New York, 12 Johnson, 293; 9 Wend. 188; in Massachusetts, Com. v. Warren, 6 Mass. 72; though not in Pennsylvania, Resp. v. Powell, 1 Dall. 47. Under the South Carolina Act of 1791, an indictment was held bad which merely alleged that the defendant falsely, fraudulently, etc., pretending that a certain mulatto was a slave, did falsely, etc., cheat and defraud one A., by selling said mulatto to him for a slave, when said mulatto was free. State v. Wilson, Rep. Con. Ct. 135. But it is swindling, within the purview of this statute, to obtain horses from an ignorant man, by threats of a criminal prosecution, and also by threats of his life. State v. Vaughan, 1 Bay, 282. The same rule, however, does not apply when a blind horse is sold as a sound one. State v. Delyon, 1 Bay, 353; Code, 1849, c. 192, § 30. 1 Supra, §§ 1126-1127; infra, § 1186. For English statutes see 2 Russ. on Cr. 9th Am. ed. 619 et seq. |