accounted for the same, may be shown. We shall see that, in cases of pure larceny, the judges do not quite agree upon the effect of this evidence; it is the same in burglary. In reason, its effect is not matter of law, but is purely of fact for the jury. And there are cases which so hold.3 § 153. Other Evidence. The other evidence may assume varying forms; as, Another Breaking — may be so connected with the one complained of as to be admissible in explanation of it. Or Combination. — Evidence of a corrupt combination, and what was said or done by one of the conspirators, is admissible in this offence the same as in others.5 I Post, $ 739-746. 8 The State v. Hodge, 50 N. H. 610, Knickerbocker v. People, 43 N. Y. 526 ; Prince v. The State, 44 Texas, 480. 177; People v. Boujet, 2 Parker C. C. 11; 4 Osborne v. People, 2 Parker C. C. The State v. Reid, 20 Iowa, 413; Houser 583; Reg. v. Cobden, 3 Fost. & F. 833. v. The State, 58 Ga. 78; Billinglea v. See The State v. Adams, 20 Kan. 311; The State, 56 Ga. 686; Methard v. The Vol. I. § 1120-1129. State, 19 Ohio State, 363, 368; Reg. v. Vol. I. $ 1248 ; Commonwealth v. Farr, 4 Fost. & F. 336; People v. Beaver, Scott, 123 Mass. 222; Mason v. The 49 Cal. 57; Walker v. Commonwealth, State, 42 Ala. 532. See The State v. supra ; Walker v. The State, 58 Ala. Adams, 20 Kan. 311. 893. For BURIAL, see SEPULTURE. BURNING BUILDINGS, see ARSON AND OTHER BURNINGS. 72 CHAPTER XI. CHAMPERTY AND MAINTENANCE.1 . § 154. Form of Indictment. — Maintenance so far includes champerty 2 that from an indictment for the one we can see how the indictment for the other should be. Chitty's form for maintenance avers, that, at a time and place, the defendant “did unjustly and unlawfully maintain and uphold a certain suit which was then depending in the court [describing it], contrary to the form of the statute in such case made and provided, and to the manifest hindrance and disturbance of justice, and in contempt, &c., to the great damage of the said A. D., and against the peace, &c.” 3 $ 155. "Against Form of Statute." — "Maintenance," says Chitty, “is an offence at common law,5 and further prohibited, on pain of fine and imprisonment, by 1 Edw. 3, c. 14."6 As, if this statute is of force in this country, it is here common law, this conclusion would seem needless with us, whether required in England or not; except when the indictment is on a statute of the State. § 156. Sufficiency otherwise. There is reason for doubt whether it is sufficient simply to say, as in the above form, that the defendant “did unjustly and unlawfully maintain and uphold ” the suit. The forms in Tremaine 8 are, in this, somewhat more minute. § 38. 1 For the law of these offences, see 4 2 Chit. Crim. Law, 234, note. Crim. Law, II. § 121 et seq. 51 Hawk. P. C. Curw. ed. p. 462, 2 Crim. Law, II. $ 122, 131. 32 Chit. Crim. Law, 231. This is 6 Referring also to 20 Edw. 3, c. 4; 1 substantially the form in Burn. Just. tit. Rich. 2, c. 4; 32 Hen. 8, c. 9. Maintenance. For forms somewhat more 7 See ante, $ 17 et seq. elaborate, see Rex v. Langrish, Trem. 8 Ante, $ 154, note. P. C. 176; Rex v. Price, Trem. P. C. 177. 73 ! CHAPTER XII. CHEATS AND FALSE PRETENCES.1 § 157. Introduction. § 157. What for this Chapter How divided. - As, for convenience, the law of these offences was treated of in separate chapters in “Criminal Law;" so, for the same reason, the procedure in both will be here considered in this one chapter, as to, I. The Indictment for the Common-law Cheat; II. The Indictment for the Statutory Offence; III. The Evidence; IV. The Procedure for the Attempt; V. Questions of Practice. I. The Indictment for the Common-law Cheat. $ 158. In General. — The forms of indictable cheat at the common law are numerous; so, therefore, must be the forms of the indictment. Still, in principle, and by the combined authorities, the several elements of the offence must be alleged, and with due particularity ; namely, the symbol or token, set out in a manner to appear on the face of the averment to be of the indictable sort, how it was addressed to the person operated upon, and how it accomplished a fraud, and what fraud. Or, if the defendant did not succeed in what he undertook, the indictment may stop short and show a punishable attempt.8 1 For the law of Cheats at Common Archb. Crim. Pl. & Ev. 10th Lond. ed. Law, see Crim. Law, II. § 141 et seq. ; 296; Rex v. Worrell, Trem. P. C. 106; for the law of statutory False Pretences, Reg. v. Eagleton, Dears. 376 ; People see ib. & 409 et seq. v. Fislı, 4 Parker C. C. 206; Rex v. 2 Crim. Law, II. § 143–160. Bonny, Trem. P. C. 106; Rex v. Ed. 8 Ib. § 168; post, $ 191-196. And see, wards, Trem. P. C. 103; Rex v. Saunders, for forms, Matthews Crim. Law, 472; Trem. P. C. 100; Rex v. Taydler, Trem. $ 159. How specific. — To say, in an indictment for selling beer without paying duty, that the defendant thus disposed of “divers quantities,” has been adjudged ill, because too general. But it was held adequate to charge the sale as made to “divers liege subjects of the king ;” because, it was observed, " the informer may not know the name of the person ;” and, it was added, an "indictment for the murder of a person unknown is good."! Whence we may infer, that, where the name is known, it must be set out; and so it has been held on an indictment for selling by false weights, — “to divers persons," not being sufficient. The Token, it appears, need be described with such minuteness only as to bring it affirmatively within the law.3 $ 160. Common Cheat." — To allege simply, that the defendant is a “common cheat,” specifying no acts, is insufficient.4 $ 161. Averment and Proof - must correspond; as, where the cheating was charged to be in an executed contract, and the evidence showed an executory one, which was abandoned before consummation, the variance was adjudged fatal.5 II. The Indictment for the Statutory Offence. $ 162. In General. The indictment, being upon a statute, must conform to the particular statutory terms; varying with them, and following in all other respects the rules for indictments on statutes laid down in the preceding volume. Still, $ 163. What allege. — In spite of somewhat varying terms, the essential elements of most of the statutes defining this offence are the same. And the indictment, to cover them as construed, must set out a pretence or pretences, which it alleges to be false, and known by the defendant to be so, made to a person named, for the purpose of defrauding him or another, by means whereof P. C. 94; Rex v. Betsworth, Trem. P. C. 3 The State v. Woodson, supra; The 93; Rex v. Arnope, Trem. P. C. 91; Rex State v. Boon, 4 Jones, N. C. 463. And v. Govers, Say. 206; Rex v. Bower, Cowp. see this case as to other ingredients of 323. And see further, as to the form, the offence. The State v. Boon, 4 Jones, N. C. 463. • Vol. I. § 530; The State v. Johnson, 1 Rex v. Gibbs, 1 Stra. 497, 8 Mod. 58. 1 D. Chip. 129; Reg. v. Hannon, 6 Mod. See Vol. I. 8 545-553. 311. 2 The State v. Woodson, 6 Humph. 55. 6 The State v. Corbett, 1 Jones, N. C. And see People v. Fish, 4 Parker C. C. 264. And see ante, $ 120; post, § 260. 206. 6 Vol. I. $ 593 et seq. he obtained from the defrauded person some specified thing of value of a sort included in the statutory inhibition. Herein the statutory words and phrases should be employed, and the facts be given with such minuteness and directness as to satisfy the common-law rules of criminal pleading. And, § 164. "Contrary to Statute." There must be the conclusion “contrary to the form of the statute."2 Thus, § 165. First. Specifying the Pretences : “False Pretences" only. – To charge simply, in the statutory words, that the thing was obtained by “ false pretences,” is not adequate ; what the particular pretences were must be stated, both as notice to the defendant of what he is to answer to,4 and as enabling the court to discern their indictable quality. And $ 166. Sufficient in Law (Existing Fact Direct). — A pretence, as set out, must be adequate in law; for example, it must be of an existing fact, not a promise. And it must be stated in a form direct, not argumentative.? Therefore an allegation which did not distinguish clearly whether it was promise or fact, was adjudged ill.8 Still — $ 167. Considered with other Allegations. The allegation of the pretence is to be considered in connection with the other allegations; so that, on the former alone, the crime need not fully appear. I See, for example, Archb. Crim. Pl. v. Commonwealth, 3 Met. Ky. 232; & Ev. 10th Lond. ed. 289; Reg. v. Giles, Hamilton v. The State, 16 Fla. 288; Leigh & C. 502; The State v. Locke, 35 Commonwealth v. Frey, 14 Wright, Pa. Ind. 419; Baker v. The State, 31 Ohio 245; Warrington v. The State, 1 Texas State, 314; Reg. v. Bowen, 13 Q. B. 790; Ap. 168. But see The State v. Joaquin, Hamilton v. Reg. 2 Cox C. C. 11, 9 Q. B. 43 Iowa, 131. 271; Oliver v. The State, 37 Ala. 134; 4 Vol. I. § 517-531. Commonwealth v. Hulbert, 12 Met. 416; 5 March v. People, 7 Barb. 391 ; The Reg. v. Kerrigan, Leigh & C. 383, 9 Cox State v. Lambeth, 80 N. C. 393, 395; The C. C. 441 ; Rex v. Airey, 2 East 30; State v. Dyer, 41 Texas, 520; Fuller's People v. Sully, 5 Parker C. C. 142; Case, 2 East P. C. 837. Maley v. The State, 31 Ind. 192 ; The 6 Crim. Law, II. § 415-428. State v. Call, 48 N. H. 126; White v. The 7 Vol. I. § 325, 508. State, 3 Texas Ap. 605. And see The 8 Reg. v. Henshaw, Leigh & C. 444, State v. Scott, 48 Misso. 422 ; The State 449. And see Reg. v. Walne, 11 Cox r. Pritchard, 35 Conn. 319; The State v. C. C. 647; The State v. Webb, 26 Iowa, Pryor, 30 Ind. 350 ; Todd v. The State, 31 262. Ind. 514; The State v. Dowe, 27 Iowa, 273. 9 Commonwealth v. Coe, 115 Mass. 2 Reg. v. Walker, 10 U. C. Q. B. 465. 481 ; Oliver v. The State, 37 Ala. 134; 3 Rex v. Mason, 2 T. R. 581, 1 Leach, Lesser v. People, 73 N. Y. 78; Cowles v. 4th ed. 487; Rex v. Munoes, 7 Mod. 315; The State, 50 Ala. 454. See, as illustra. 8. c. nom. Rex v. Munoz, 2 Stra. 1127; tive, and query, Commonwealth v. Wol. Burrow v. The State, 7 Eng. 65; Glackan cott, 10 Cush. 61. |