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POINTS REQUESTED FOR THE DEFENCE IMPROPERLY
REFUSED, AND ERRONEOUS CHARGES.

The defendant during the night in the absence of the tenant of a shop quietly went to the shop and under claim of right removed the locks on the doors and substituted new ones. It was held error for the judge to fail to instruct that the entry was not made with violence, and a strong hand or other circumstances of tenor, and that defendant should be acquitted. Thompson v. Com., 116 Pa. 155, 1887.

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 trademarks, and author's name, @ 1125.

But not cheats whose falsity is
not latent or addressed to the
public at large, ? 1126.
False
? 1126 a.
Nature of distinction between pub-

pretences not cheats,

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 PRETENCES.

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 possessed

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 auc-
tioneer 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.

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5. Need not be by Defendant Personally.

Pretence by one confederate is

pretence by all, ? 1171. Confederacy must be first shown,

? 1172.

6. They must relate to a Past or Present 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 statute, & 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 ob-
tained mediately through con-
tract, 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.

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10. Prosecutor's Negligence or Mis

conduct.

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

1194.

within statute, 1193. Indebtedness of prosecutor to defendant is no defence, 11. Property included in Statutes. Negotiable paper within statute, 1195.

Thing obtained must be of some value, 1196.

Money paid in satisfaction of debt

not within statute, & 1197. Credit on account will not sustain

indictment, 1198.

Goods not at the time in existence

are within statute, % 1199. Actual injury to owner need not

be proved, 1200.

Goods must not have belonged to defendant, nor taking under claim of title, 1201.

Goods must have been obtained for defendant and under his directions, 1202.

Property must pass, not mere use, ? 1203.

Property not larcenous not within statute, 1204.

12. Where offence is triable.

Place of any overt act may take
cognizance, 1206.
Principal indictable in place of
agent's act, 1207.
Doctrine of asportation does not
apply, 1208.

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In bargain relation of fraud to bargain must appear, 1215. Defendant's allegation of property

must be proved as laid, ? 1216. Spurious bank note need not be set out at large, & 1217.

When pretences are divisible only part need be proved, § 1218. Verbal accuracy not required, 8 1219.

Innuendoes and definitions proper

when explanation is required, ? 1220. Description of property to be as in larceny, 1221.

Property obtained must be individuated, 1222.

Owner must be stated, ? 1223. Pretences must be negatived, ? 1224.

Scienter must be averred, & 1225. Intent to defraud must in some

way appear, 1226. Obtaining "by means

" of pre

tence must be averred, ? 1227. Varying counts may be joined, ? 1228.

14. Attempts.

By statute conviction may be had of attempt under indictment for complete offence, & 1229. Conviction may be had irrespective of prosecutor's prudence, 1230.

May be attempt when only credit is obtained, 1231.

Question of attempt is for jury,
1232.

General character of instrument
must be designated, ? 1233.
Means of attempt must be averred,
1234.

15. Receiving Goods Obtained by False Pretences.

Receiving goods so obtained is
indictable, 1235.

POINTS FOR DEFENCE IMPROPERLY
REFUSED, AND ERRONEOUS
CHARGES. (See end of chapter.)

I. CHEATS AT

COMMON LAW.1

§ 1116. CHEATS, punishable at common law, are such cheats (not amounting to felony) as are effected by deceitful or illegal symbols or tokens which may affect the public at large and against which common prudence could not have guarded.2

Cheats affecting

public justice indict

able.

§ 1117. Cheats affecting public justice, thus executed, have 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. And so where a person, pretending that he had power to discharge soldiers, took money of another to discharge him as a soldier."

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

2

2 East P. C. c. 18, s. 4, p. 821; 1 Hawk. P. C. c. 23, s. 1; 2 Russ. on Cr. (6th Am. ed.) 604; U. S. v. Watkins, 3 Cranch C. C. 441, 1829; Cross v. Peters, 1 Greenl. 387, 1821; Com. v. Hearsey, 1 Mass. 137, 1804; Com. v. Morse, 2 Mass. 139, 1806; Com. v. Warren, 6 Mass. 72, 1809; People v. Babcock, 7 Johns. 201, 1810; People v. Miller, 14 Johns. 371, 1817; Lambert v. People, 9 Cow. 588, 1827; People v. Stone, 9 Wend. 187, 1832; State v. Wilson, 2 Mill's Rep. Const. 135, 1818; State v. Vaughan, 1 Bay, 282, 1792; Hill v. State, 1 Yerg. 76, 1824; Com. v. Speer, 2 Va. Cas. 65, 1817;

3

State v. Stroll, 1 Rich. 244, 1844; State v. Patillo, 4 Hawks, 348, 1826.

As to Texas statute against “swindling," see Popinaux v. State, 12 Tex. App. 140, 1882; Davison v. State, Ibid. 214, 1882.

The subject is discussed with much ability in Lord Macaulay's report on the Indian Code, title "CHEATS."

3 R. v. Fawcett, 2 East P. C. 862; and see O'Mealy v. Newell, 8 East, 364, 1807;1 Russ. on Cr. (6th ed.) 275 ; and see, as to falsely personating bail, 1 Burn's J. P. 330.

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