Gambar halaman
PDF
ePub

and ad

dressed to the public at large.

False pretences not cheats.

not latent, false pretences to an individual. In other words, if a cheat is not of such a general character as to address the public, and is not executed by means of latent false devices, it is not indictable at common law; for, as has 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 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.3 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.1

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

1 R. v. Wheatly, 1 W. Bl. 273, Burr. 1125, 1760; U. S. v. Porter, 2 Cranch C. C. 60, 1812; U. S. v. Hale, 4 Ibid. 83, 1830; U. S. v. Watkins, 3 Ibid. 441, 1829; Ranney v. People, 22 N. Y. 413, 1860; Wright v. People, Breese, 102, 1825; State v. Stroll, 1 Rich. 244, 1844.

2 R. v. Young, 3 T. R. 104, 1789; R. v. Eagleton, 33 Eng. Law & Eq. 540; 6 Cox C. C. 559, 1855; Hartman v. Com., 5 Barr, 60, 1846; State v. Justice, 2 Dev. 199. Supra, 1121.

3 R. v. Pywell, 1 Stark. 402, 1817; State v. Delyon, 1 Bay, 353, 1794; and see R. v. Codrington, 1 C. & P. 661, 1825.

State v. M'Leran, 1 Aikens, 311, 1826; Hill v. State, 1 Yerg. 76, 1824; 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 conspiracy to cheat, but not of the offence of cheating. R. v. Mackarty, 2 Ld.Raym. 1179, 1184; 3 Ibid. 325, 1706; 2 Burr. 1129; 2 East P. C. 824. It has been held, however, indictable to get a person to lay money on a race, and to prevail with the party to run booty; yet the ground of the decision appears to have been that the offence amounted to conspiracy. Queen v. Orbell, 6

* See 2 East P. C. c. 18, s. 5, p. 823; 1 Hawk. c. 23, s. 1; and see R. v. Paris, 1 Sid. 431, 1684; Com. v. Sankey, 22 Pa. 390, 1853; Wright v. People, 1 Breese, 102, 1825; State v. Justice, 2 Dev. 199, 1828; per contra, Mod. 42, 1704.

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;2 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;3 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 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."

8

Nature of

§ 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 due and just measure, to wit, sixteen gallons as and for eighteen. This "is only an inconvenience and injury to

distinction public and cheats.

between

private

11 Hawk. c. 23, s. 2; 2 East P. C. 2 Ld. Raym. 1013; 1 Salk. 379, 1704; 818. and see R. v. Bryan, 2 Stra. 866, People v. Miller, 14 Johns. 371, 1730; R. v. Gibbs, 1 East, 173, 1800. 1817. That this may be larceny, see supra, 'People v. Babcock, 7 Johns. 201, 916. "It seems the same doctrine 1810.

U. S. v. Carico, 2 Cranch C. C. 446, 1824; Com. v. Hearsey, 1 Mass. 137, 1804.

* Com. v. Warren, 6 Mass. 72, 1809. See People v. Gates, 13 Wend. 311, 1835.

408, 1841. Supra, § 1120.

will hold good, though the defendant made use of an apparent token, which in reality was, upon the very face of it, of no more credit than his own assertion, and was not of a public nature. 2 East P. C. c. 18, s. 2; 2 Russ. C. & M. (3d ed.) 283. See State v. Sumner,

6 Weierbach v. Trone, 2 W. & S. 10 Vt. 587, 1838; People v. Miller, 14 Johns. 371, 1817." The indictment in any case must allege a false token or device. R. v. Lara, 6 T. R. 565, 1796; and see R. v. Flint, R. & R. 460, 1821. Supra, & 1120.

State v. Patillo, 4 Hawks. 348, 1826. See Com. v. Speer, 2 Va. Cas. 65, 1817; State v. Stroll, 1 Rich. 244, 1844.

In 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,

9 See R. v. Searlestead, 1 Latch, 202, 1661; R. v. Jones, 2 East P. C. 822; R. v. Mawbey, 6 T. R. 619, 1796; People v. Gates, 13 Wend. 311, 1835.

The offence

As if a man

a private person, arising from that private person's own negligence and carelessness in not measuring the liquor upon receiving it, to see whether it held the just measure or not. that is indictable must be such as affects the public. use false weight 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 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 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.2

When only

§ 1127 a. Where, by means of the cheat, possession only of goods is obtained, the owner retaining the property, and afterpossession ward the property is feloniously appropriated by the taker, is obtained 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.3

offence

may be larceny.

§ 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 com

Indictment for public

1 R. v. Wheatly, 2 Burr. 1125; 1 ple v. Morse, 7 Crim. Law Mag. (N. W. Bl. 273, 1760.

Y.) 211, 1885.

2

Supra, 1117–9.

State v. Woodson, 5 Humph. 55,

3

Supra, 964; infra, & 1344. Peo- 1844.

not name

mon law rule, is not only inconsistent with authority,' but cheat need with sound reason, if it means anything more than that party when an overt act of cheating has been executed the cheated. 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.3

Mode of

§ 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.* 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 cheating 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."

6

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

1 R. v. Gibbs, 8 Mod. 58, 1723.

2 R. v. Closs, Dears. & B. 460, 1848. 'See State v. Corbett, 1 Jones, (N. C.) 264, 1853, which case simply holds that when a cheat is executed the execution must be set forth.

* R. v. Closs, Dears. & B. 460, 1848. $2 East P. C. c. 18, s. 13, p. 837. Ibid. p. 838. Infra, 2 1213 et seq. State v. Johnson, 1 Chipm. 129, 1797.

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 strategems, etc., fraudVOL II.-4

ulently obtained divers sums of money, etc., to the great injury of industrious families, and to the manifest prejudice of trade and credit, enacts:

Obtaining Goods, etc., by False Pretences.-"That all persons who knowingly 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.

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

The statute of 7 and 8 Geo. IV. c. prises "any chattels, money, or val30, s. 53, provides: uable security." In the second place, what constitutes the main point of difference, and what the preamble of the latter statute indicates when it states

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.

Same, provided if Offence amount to Larceny there be no Acquittal.-"That if any person shall by any false pretence obtain from any other person any that a failure of justice frequently chattels, money, or valuable security, arises from the subtle distinction with intent to cheat or defraud any between larceny and fraud, is, that person of the same," such person shall under the 30 Geo. II. c. 24, whenever be guilty of a misdemeanor, and pun- the offence on trial proved to amount ished as therein required: "Provided to constructive larceny, the common always, That if upon the trial of any law, by merging the misdemeanor in person indicted for such misdemeanor, the felony, worked the acquittal of 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 afterward prosecuted for larceny on the same facts." 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 equally applying to the other. In the 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 merchandise;" by the 7 & 8 Geo. IV. c. 29, s. 53, it com

By 24 & 25 Vict. c. 96, those statutes are modified in modes hereafter noticed.

Sir J. F. Stephen thus summarizes the English law on this topic : DIG. CRIM. LAW, 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)' By any false pretence obtains from any other person any chattel, money, or valuable security, with intent to defraud; or who,

"(b) With intent to defraud or injure any other person by any false

1 24 & 25 Vict. c. 96, s. 88, S. as explained by 1857, and greatly extends the old law on the

the cases.

2 Ibid. s. 90, S. This section was meant to cover such cases as R. v. Danger, D. & B. 307,

subject. See Mr. Greaves's note to the section in his edition of the Acts.

« SebelumnyaLanjutkan »