And so of false § 1118. Independently, however, of cheats affecting the administration of public justice, frauds effected by any general false device or token, calculated to affect the public, are cheats by punishable at common law. Thus, selling unwholesome tokens and provisions, without notice, has been held a misdemeanor, devices calthough perhaps the reason of this may be that such an affect public. 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."3 culated to But not by § 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 true, an indictment was sustained against a baker, in the employ of the United States army, for baking two hundred and 1 Sir J. F. Stephen's definition, Dig. Crim. Law, 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 of this article, to deceive any person in any contract or private dealing by lies, unaccompanied by such practices as aforesaid." short without measure false token. "Maiming one's self in order to have a pretext for begging. 1 Hawk. P. C. 55; 2 Russ. on Cr. 609. "Selling unwholesome bread as if it were wholesome. 2 East P. C. 822; R. v. Dixon, 3 M. & S. 11, 1814." On the other hand, the following cases have been held not to be cheats at common law : "Receiving barley to grind, and delivering a mixture of oat and barley meal. R. v. Haynes, 4 M. & S. 214, 1815. "Selling as a Winchester bushel a The following are among the illus- sack of corn which is not a Winchestrations given by him: ter bushel, but greatly deficient. Pinkney's Case, 2 East P. C. 818." "Selling by a false weight or measure, even to a single person. R. v. Young, 3 T. R. 104, 1789. False packing of a bale of cotton is indictable. Jones v. State, 22 Tex. App. 680, 1887; Anderson v. State, 30 Tex. App. 699, 1892. "Selling clothing with the alnager's seal forged upon it. 2 Russ. on 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, 1858. In State v. Phifer, 65 N. C. 321, 1871, the distinctions in the text are supported with much clearness by Reade, J., criticising State v. Simpson, 3 Hawks, 620, 1825. See, also, State v. Jones, 70 N. C. 78, 1874. 24 Bl. Com. 162; 2 East. P. C 822. Infra, 1434. 3 R. v. Wood, 1 Sess. Cas. 217. See infra, 1127. R. v. Wheatly, 2 Burr. 1125, 1761; R. v. Eagleton, 33 Eng. Law & Eq. 545; 6 Cox C. C. 559, 1855; R. v. Young, 3 nineteen barrels of bread, and marking them as weighing eightyeight pounds each, when in fact they severally weighed but sixtyeight 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 such a sale is indictable as a false pretence, it is not cognizable at common law unless a false measure is used.2 Adultera must be latent, directed to gener ally. § 1120. It is not indictable at common law for a miller, receiving good barley at his mill, to deliver a musty and unwholetions, to be some mixture of oat and barley meal, differing from the indictable, produce of the barley; and Lord Ellenborough, C. J., in a case of this class, said: "The allegation that the quanthe public tity (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 an 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 T. R. 104, 1789; Hartman v. Com., 5 2 R. v. Eagleton, 33 Eng. Law & Eq. Barr, 60, 1846; State v. Justice, 2 545; 6 Cox C. C. 559, 1855; S. P., Dev. 199, 1828. See infra, ? 1127; Hartman v. Com., 5 Barr, 60. See State v. Kellner, 22 Nebr. 668, 1888. infra, & 1127. Resp. v. Powell, 1 Dall. 47, 1780. See 3 Rep. Con. Ct. 139; 2 Russ. on Cr. (9th Am. ed.) 605 et seq.; Smith v. State, 90 Tenn. 575, 1891. 3 R. v. Haynes, 4 M. & S. 214, 1815. See, also, R. v. Eagleton, 33 Eng. Law & Eq. 545; 6 Cox C. C. 559, 1855. law, the offence not being of such a general character as to make it a common law cheat.1 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 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.3 may be . § 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 Cheats by public breach of the peace; and it may also be held that the false news fabrication of false news, calculated to produce any public indictable. detriment, is an indictable offence. Yet here again must we apply the tests already given. The falsity must be latent (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. 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." 1 Weierbach v. Trone, 2 W. & S. 408, 1841. See Com. v. Warren, 6 Mass. 72, 1809; 2 Russ. on Cr. (6th Am. ed.) 276. 2 * R. v. Dixon, 4 Camp. 12; 3 M. & S. 11, 1814. Infra, 1126; Com. v. Holt, 5 N. Eng. Rep. 538, 1888; People v. Mahaney, 24 Week. Dig. 72, 1886; People v. Schaeffer, Ibid. 193, 1886; People v. Kibler, 27 Ibid. 58, 1887; Com. v. Gordon, 159 Mass. 8, 1893; Betts v. Armstead, L. R. 20 Q. B. D. 771, 1888. And so of false notes 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 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 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.2 § 1124. The apparent obscurity in the cases of cheats by false per be a five dollar bill of the Bank of Tallahasse, in Florida, the blanks of which were filled up, except those opposite the words "Cashier" and 1 R. v. Jackson, 3 Camp. 370, 1813; the prosecutor's clerk, and gave in R. v. Wavell, 1 Mood. 224, 1829; R. payment an instrument purporting to บ. Lara, 6 T. R. 565, 1796. See Ranney v. People, 22 N. Y. 413, 1860; State v. Allred, 84 N. C. 749, 1881. See, however, R. v. Thorn, C. & M. 206, 1841, where it was held that false personation, coupled with a false order, is a common law cheat. 2 Com. v. Boynton, 2 Mass. 77, 1806. 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, 1817; State v. Grooms, 5 Strob. 158; supra, 748; but see State v. Patillo, 4 Hawks, 348. Where the defendants purchased goods from 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, 1844. And such is the law in Pennsylvania, in respect to a counterfeit bank note of another State. Lewis v. Com., 2 S. & R. 551, 1816. By means of a chattel mortgage; Hardin v. State, 25 Tex. App. 74, 1888; Ferguson v. State, 25 Tex. App. 451, 1888. As to forgery in such cases, see supra, ? 660. sonation is removed by the application of the same tests.1 And so of sonation. If a pretender (e. g., Perkin Warbeck, or the Tichbourne false perclaimant) 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, when really a miner 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.1 And so of false and trademarks, and stamps authors' names. § 1125. A false stamp or trade-mark, so made as to deceive the public generally, is clearly on this reasoning indictable. 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 mea..s of its adoption as a trade by the fabricator, enabling him to throw fraudulent pictures generally on the market. § 1126. Indictability, therefore, cannot be predicated of cheats where the falsity is not latent, and the fraud not addressed to the public at large; e. g., false warranties, reading false cheats papers to an individual and obtaining his signature, and falsity is 1 Hall v. Com., (Ky.) 9 S. W. Rep. 409, 1888. As to false personation under statutes, see infra, ¿? 1135, 1139, 1149. As to false pretence of infancy, see infra, 1149. See 1 Gab. Cr. L. 204. * R. v. Hanson, Say. 229; 2 East P. C. 821; Trem. P. C. 101, 102. See 2 East P. C. 1010. But not whose 'See 2 East P. C. 820; Whart. Confl. of Laws, 326. False letter-heads. Taylor v. Com., 94 Ky. 281, 1893. R. v. Closs, Dears. & B. C. C. 460, 1858. |