OPINION.

session of her husband, Philip H. Chorman. That there was therefore a fatal variance between the proof and the allegation in the declaration, and the plaintiff was therefore not entitled to re

cover.

Jackson vs. Prescott, Maul and Selwyn, 201.

Mr. White:-Without citing any authorities, our answer to the first point raised is this: The proof is that the husband and wife lived together, and while she gave up to him the use of the land, was that not possession in her as well as in him? She was not dispossessed. She did not remove from the land at all, but was there living on the land and her husband had control of it.

LORE, C. J.:-He testified from the stand that he alone was in possession of it. You allege that Comfort E. Chorman alone was in possession.

Let a nonsuit be entered.

STATE v8. CHARLES HOOD.

Criminal Law-Cheating-Indictment-Common Law-Definition -Cheating by Using False and True Penknife.

I.

In an indictment for cheating it is incumbent upon the State to show that the offense was of a nature not only to deceive the particular individual, but that it was one against which common prudence and care are not sufficient to guard.

2. If the defendant, either by himself or in collusion with another, obtained from the prosecuting witness certain money by using a false or trick penknife in con

CHARGE.

nection with a true penknife, and in such a way as would deceive men of common prudence and care, it would be of such a character as to deceive people generally, and would come within the common law definition of cheating, and constitute an indictable offense.

(November 21, 1901.)

LORE, C. J., and SPRUANCE and GRUBB, J. J., sitting.

Horace G. Eastburn for the State.

Charles F. Curley for the defendant.

Court of General Sessions, New Castle County, November Term, 1901.

INDICTMENT FOR CHEATING (No. 23, November Term, 1901).

LORE, C. J., charging the jury:

Gentlemen of the jury:-1t is charged in the indictment "That Charles Hood, late of Wilmington Hundred, in the county aforesaid, on the nineteenth day of October, in the year of our Lord one thousand nine hundred and one, with force and arms at Wilmington Hundred, in the county aforesaid, being then and there a person of dishonest conversation, and a common deceiver, at the county and hundred aforesaid, on the day aforesaid, contriving, practicing, and falsely, fraudulently and deceitfully intending one John Lucas, with a certain true penknife and a certain false or trick penknife, and with false or fraudulent use of the same, falsely, unlawfully, unjustly, fraudulently and deceitfully, to deceive and defraud, and from the said John Lucas, by means of the said false or trick penknife and the said true penknife and false use of the same, craftily and subtly, falsely, fraudulently and deceitfully, different sums of money to acquire and obtain, then and there did solicit, incite, provoke and procure the said John Lucas to bet and wager certain paper money, the kind and denomination of which

CHARGE.

are to the jurors unknown, of the aggregate value of two dollars lawful money of the United States of America, certain coins, the kind and denomination of which are to the jurors unknown, of the aggregate value of two dollars, like lawful money as aforesaid, the said bet or wager to be contingent upon the ability of him, the said John Lucas, to open the said true penknife, which had then and there been displayed to him, the said John Lucas, by the said Charles Hood, and that the said Charles Hood did then and there, with force and arms, falsely, fraudulently and deceitfully substitute the said false or trick penknife for the said true penknife, by means whereof, and by the false use thereof, he, the said Charles Hood, subtly, fraudulently, falsely and unlawfully did receive, have and obtain into his own hands and possession," said sum of money.

In order to convict the defendant, it is incumbent upon the State to show that the offense was of a nature not only to deceive the particular individual, but that it was one against which common prudence and care are not sufficient to guard.

We go back to common law to ascertain what is cheating, for the common law defines the same. In order to describe to you what character of acts come within the designation of cheating, I will read to you from 3 Greenleaf on Evidence, (13th Edition), Section 84:

"The indictment for this offense, at common law, must show, and of course the prosecutor must prove, first, that the offense was of a nature to affect not only particular individuals, but the public at large, and against which common prudence and care are not sufficient to guard. Hence it was held indictable for common players to cheat with false dice; and for a person to pretend to have power to discharge soldiers, thereupon taking money from them for false discharges. So, obtaining an order from the court to hold to bail by means of a false voucher of a fact, fraudulently produced for that purpose; furnishing adulterated bread to the government, for the use of a military asylum; and selling army bread to the govern

VERDICT.

ment by false marks of the weight, fraudulently put on the barrels' have been held indictable offenses at common law."

So that you have the crime clearly defined. If the prisoner, either by himself or in collusion with another, did obtain from this prosecuting witness certain money by using a false or trick penknife in connection with a true penknife, and in such a way as would deceive men of common prudence and care, then it would be of such a character that it would deceive people generally, and would come within the common law definition and would be an indictable offense.

Verdict not guilty.

STATE vs. JOHN ROLLO.

Criminal Law-Larceny-Indictment; Sufficiency of-Corporation; Property of; Name of-Pleading-Practice.

In an indictment for larceny, where the name of the corporation is stated as owner of the property, there need be no averment that it is a corporation.

(November 26, 1901.)

LORE, C. J., and SPRUANCE and GRUBB, J. J., sitting.

Herbert H. Ward, Attorney-General, and Robert H. Richards, Deputy Attorney-General, for the State.

Robert Adair for the defendant.

ARGUMENTS.

Court of General Sessions, New Castle County, November Term, 1901.

INDICTMENT FOR LARCENY (No. 30, November Term, 1901).

The indictment charged, on August 1st, 1901, the larceny by the defendant of certain books, giving the value of the same, "of the goods and chattels of the Wilmington Institute," etc.

Adair, for defendant, moved to quash the indictment as insufficient because it did not allege that the Wilmington Institute, whose property was alleged to have been stolen by the defendant, was a corporation or an association of persons, or indicate in any way what it was, and, furthermore, it did not aver the correct corporate name thereof.

Stadden vs. the People, 82 Ill., 432; People, vs. Boget, 36 Cal., 245.

Richards, Deputy Attorney-General :

Where the name of a corporation is stated as owner, there need be no averment that it is a corporation.

2 Bishop Crim. Prac., Sec. 718, p. 326; State vs. Fitzpatrick, 9 Houst., 385; State vs. Bench, 68 Mo., 78; Fisher vs. State, 40 N. J. L., 169; P. vs. McDonnell, 80 Cal., 285; 13 Am. St., 159; Stanley vs. Richmond &c. R, R., 89 N. C., 331; Hatfield vs. State, 76 Ga., 499; State vs. Grant, 104 N. C., 908; State vs. Shields, 89 Mo., 259; Braithwaite vs. State, 28 Neb., 832; Reg vs. Stokes, 8 C. & P., 151; 34 E. C. L., 333; Enc. P. & P., Vol. 12, p. 973; 2 Va. Cases, 296.

It is sufficient to allege and prove the name by which a corporation is generally known.