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(d.) And so of False Dice. $ 2059 b. Hence, also, 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 with dice, to employ false dice, offering to play with whomsoever may come, is as indictable as is the use of
other false device or token. P
(e.) And 80 of False Notes. $ 2060. On this issue, 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 check on a bank where he has no funds, neither of these ingredients exist. The fraud is not latent so 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 check. Hence passing such a check on an individual is not a cheat at common law.pl
But it is otherwise when a false bank note is used 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. p2
Thus, in Virginia, it has been held that the procuring goods, &c., 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. So, where the defendants purchased goods from the prosecutor's clerk, and gave in payment an instrument purporting to be a five dollar
p R. v. Leeser, Cro. Jac. 497 ; R. v. post, $ 2065. See Ranney v. People, 8 Madox, 2 Roll. R. 107.
E. P. Smith (22 N. Y.), 413. pi R. v. Jackson, 3 Camp. 370; R. pCom, v. Boynton, 2 Mass. 77. v. Wavell, 1 Moody, 224 ; R. v. Lara, 9 Com. v. Speer, 2 Virg. Cas. 65;
but see State v. Patillo, 4 Hawks, 348.
bill of the Bank of Tallahassee, in Florida, the blanks of which were filled up, except those opposite the words “Cashier” and -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.. And such is the law in Pennsylvania, & in respect to a counterfeit bank note of another state.
(f.) And so of False Personation. $ 2061. The apparent obscurity in the cases of cheats by false personation is removed by the application of the same tests. If a pretender (e.g. Perkin Warbeck, or the supposititious Sir Roger Tichbourne, supposing his case to be an imposture) palms himself on a community as a person whom he is not, and thereby obtains credit from the public at large, he is indictable as a cheat just so far as he imposes upon persons who have no notice that his claims are disputed, and just so far as 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 at large as a major, when really a minor ; and when a married woman obtains general credit by pretending to be unmarried. t But suppose the pretender goes simply to an individual, and to that individual offers 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 was a direct subject tendered to the prosecutor on which to make inquiry, and the fraud being pointed singly at an individual, it is not a cheat at common
(g.) And so of False Stamps and Trade-marks, and Authors'
Names. § 2061 a. A false stamp or trade-mark so constructed as to r State v. Stroll, 1 Richardson, 244. i R. v. Hanson, Say. 229. & Lewis v. Com. 2 S. & R. 551. u See 1 East P. C. 1010.
deceive the public generally, is clearly on this reasoning indictable. v More difficult to be received 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. W 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 means of its adoption as a trade by the fabricator and of the fraudulent pictures thrown by him generally on the market.
(h.) But not 80 of Cheats where the Falsity is not Latent, and
the Fraud not addressed to the Public at Large ; e. g. False Warranties, reading False Papers to an Individual and obtaining his Signature, and False Pretences to an Individual.
$ 2062. If, however, 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, x 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. y So falsely warranting an unsound horse to be sound, knowing it to be otherwise, is no offence, unless there be a conspiracy to defraud, and then an indictment might stand for a conspiracy. z Nor is it, it seems, 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. a Thus, where an indictment was as follows: “ The jurors, &c., that Moses Justice, being an evil-disposed person, and designing fraudulently to cheat and impoverish one Anne Fox, did become the security of the said Anne Fox, in a bond then and there executed by her for the faithful performance,
v See 2 East P. C. 820; Wh. Con. of Eng. Law & Eq. 540; 6 Cox C. C. 559. L. $ 326.
Ante, $ 2058. w R. v. Closs, Dears. & B. C. C. 460. z R. v. Pywell, i Stark. 402; and
* State v. Stroll, 1 Richardson, 244. see R. v. Codrington, 1 C. & P. 661. U. S. v. Porter, 2 Cranch C. C. R. a See 2 East P. C. c. 18, s. 5, p. 60; U. S. v. Hale, 4 Ibid. 83; U. S. 823; 1 Hawk. c. 71, s. 1; and see R. v. Watkins, 3 Ibid. 441 ; Ranney v. v. Paris, 1 Sid. 431 ; Wright v. PeoPeople, 8 E. P. Smith (22 N. Y.), ple, 1 Breese, 66 ; Com. v. Sankey, 10
Harris, 390; per contra, Hill v. State, y R. v. Young, 3 T. R. 104; Hart- 1 Yerger, 76; State v. M'Leran, 1 man v. Com. 5 Barr, 60; State v. Jus- Aikens, 311. See comments on these tice, 2 Dev. 199; R. v. Eagleton, 33 cases, 1 Bennett & H. Lead. Cas. 16.
&c. And the jurors, &c., that the said Moses Justice, afterwards, to wit, on, &c., did write, and cause to be written, a certain deed of bargain and sale for her, the said Anne, to him, the said Moses Justice, purporting to sell and convey a certain tract of land, belonging to her the said Anne, situate, &c., to him, the said Moses Justice, in fee simple, &c., and also purporting to be in consideration of the sum of three hundred dollars, then and there well and truly paid by him, the said Moses Justice, to her, the said Anne Fox. And the jurors, &c., that the said Moses Justice did then and there fraudulently, &c., pretend to the said Anne, that the said deed of bargain and sale was nothing but a receipt to him acknowledging that he was the security of the said Anne, &c., by means of which false, &c., the said Moses Justice did fraudulently, &c., procure the said Anne to sign, seal, and deliver the said deed of bargain and sale to him, the said Moses Justice, for the said tract of land, containing, &c., and of the value, &c.; and so the jurors, &c., that the said Moses Justice, her, the said Anne, of the land, &c., of the value, &c., fraudulently, &c., did cheat, deceive, and defraud, to the great damage, &c., and against the peace and dignity of the state :" it was held an indictable offence was not charged, there having been no false token of deceitful practice affecting the community at large, though undoubtedly a gross fraud had been committed. 6
§ 2063. Where two persons pretend, 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. c 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. d
§ 2064. The deceitful receiving of money from one man to 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 is said to be needless to provide severe laws for such mischief,
b State v. Justice, 2 Dev. 199. 1184; 3 Ld. Raym. 325; 2 Burr. 1129; c R. v. Mackarty, 2 Ld. Raym. 1179, 2 East P. C. 824.
d 6 Mod. 42, c.
against which common prudence and caution may be a sufficient security.e On the same principle it is not an indictable offence to get possession of a note, nnder pretence of wishing to look at it, and carrying it away, and refusing to return it;f nor to pretend to have money ready to pay a debt, and thereby obtaining a receipt in discharge of the debt, without paying the money ;g nor to obtain, in violation of an agreement, and by false pretences, possession of a deed lodged in a third person's hands as an escrow ; h nor to obtain goods on credit, by falsely pretending to be in trade, and to keep a grocery shop, and giving a note for the goods in a fictitious name; i nor to put a stone in a pound of butter so as to increase its weight ;j nor to obtain money by falsely representing a spurious note of hand to be genuine. k
§ 2065. Where a party obtained money of another, by pretending to come by the command of a third person to demand a debt, or the like, in his name, showing no voucher or token for his authority, it was holden not indictable, for it was the party's own fault to trust him ; the language of the court being : “We are not to indict one man for making a fool of another ; let him bring his actions." I It seems the same doctrine will hold good, though the defendant made use of an apparent token, which in reality is, upon the very face of it, of no more credit than his own assertion, and is not of a public nature. m Where an indictment charged that the defendant, deceitfully intending, by divers crafty means and subtle devices, to obtain possession of certain lottery tickets, the property of A., pretended that he wanted to purchase, and delivered to A. a fictitious order for the payment of money, purporting to be a draft upon a banker for the amount, which he knew he had no authority to draw,
and would not be paid, by which he obtained the tickets, and de
e 1 Hawk. c. 71, s 2 ; 2 East P. C. See Com. v. Speer, 2 Virg. Cases, 65 ; 818.
State v. Stroll, 1 Richardson, 244. f People v. Miller, 14 Johns. 371. 1 R. v. Jones, 2 Ld. Raym. 1013; 1 g People v. Babcock, 7 Johns. 701. Salk. 379; 6 Mod. 105, S. C.; and see
h Com. v. Hearsey, 1 Mass. 137; R. v. Bryan, 2 Strange, 866; R. 1'. U. S. v. Carico, 2 Cranch C. C. 760. Gibbs, 1 East, 185.
i Com. v. Warren, 6 Mass. 72. m 2 East P. C. c. 18, s. 2; 2 Russ. j Wiesbach v. Trone, 2 Watts & C. & M. 3d ed. 283. See State e. Serg. 408.
Sumner, 10 Vt. 587; People v. Milk State v. Patillo, 4 Hawks, 348. ler, 14 Johns. 371.