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It is not a fatal error that the obtaining of the signature to a promissory note, and the obtaining the money on the same, are stated to be on two distinct days. t
Obtaining from wife or agent. — Obtaining from A.'s wife, on A.'s directions, supports an averment of obtaining from A.u And so obtaining by an agent supports an averment of obtaining by the principal. v
Varying counts. — Counts varying the pretences, and the parties defrauded, may be joined. w
6. Attempts. § 2162 a. The general law as to attempts is hereafter fully discussed. * So far as concerns the particular offence now under consideration, only one or two special points are to be noticed.
§ 2162 b. (a.) Conviction of attempt under indictment for substantive offence. At common law this is not permissible. In England and in several of the United States, however, it is authorized by statute. Hence we have a number of reported cases where there was a conviction of the attempt under the ordinary indictment for obtaining goods by false pretences. y
§ 2162 c. (6.) In attempts the question of prudence or imprudence of the prosecutor does not arise ; but a conviction may be had where there was a fruitless attempt to obtain goods by a false pretence, z
$ 2162 d. (c.) Where only credit on account is proved, the defendant may be convicted of the attempt. — It has been already seen, a that an indictment for the consummated offence cannot be sustained when only a credit on account was obtained. But under these circumstances the defendant may be convicted of an attempt. 6
§ 2162 e. (d.) Question for jury is whether attempt was really made. — Thus where a prisoner, being employed at a hospital,
v. Jeffries, 7 Allen, 549; Com. v. Lin- x See post, $ 2696. coln, 11 Allen, 233. Ante, $ 2124 a. y R. v. Roebuck, Dears. & B. 24;
i Com. v. Frey, 50 Penn. State, 7 Cox C. C. 126; R. v. Ball, C. & M. 245.
249. u R. v. Moseley, Leigh & Cave C. z R. 2. Roebuck, supra;
R. v. Ball, C. 92.
supra. Post, $ 2692. v. Ante, $ 2146.
a Ante, $ 2138. w Oliver v. State, 37 Ala. 134. h R. v. Eagleton, Dears. C. C. 515; Ante, $ 424.
6 Cox C. C. 559. Ante, $ 2105.
wrote to the prosecutor, as manager, for a small quantity of linen, not saying it was for the hospital, and in point of fact he was not manager, and the goods were really ordered for himself, but not sent; on an indictment for an attempt to obtain them, the question left to the jury was, whether he ordered the goods as for and on behalf of the hospital, or in his own name, there being no evidence of an intention to pay cash, but evidence of its absence.c
$ 2162 f. (e.) In an indictment for an attempt to obtain by a false written instrument, a variance as to instrument is fatal. Thus it has been ruled that where the indictment charges the instrument to be a money order, and the proof does not sustain this, a conviction is erroneous. d But the instrument need not, if correctly designated, be set out. e
$ 2162 g. (f.) Nor is it sufficient baldly to aver an “attempt, ” without in some way stating the means. Thus, an indictment was held bad which stated that A. did unlawfully attempt and endeavor to obtain from B. a large sum of money (stating it), with intent to cheat and defraud B. f
7. Receiving Goods obtained by False Pretences. $ 2162 h. At common law, persons receiving goods knowing them to be fraudulently obtained by false pretences, will be indictable as accessaries after the fact, if the obtaining is a statutory felony; or, certainly if cognizant of the original design, as principals, where the obtaining is a statutory misdemeanor. By statutes in England and elsewhere, however, such receiving is made a substantive offence. To sustain a conviction in any view, it is necessary to prove that the defendant knew that the goods were obtained by false pretences.g c R. v. Franklin, 4 F. & F. 94. f R. v. Marsh, 1 Den. C. C. 505; T.
d R. v. Cartwright, R. & R. 106. & M. 192. Post, § 2702–6. Post, $ 2702-6.
g R. v. Rymes, 3 C. & K. 327. e R. v. Coulson, T. & M. 332; 1 Den. C. C. 592.
SECRETING PROPERTY WITH INTENT TO DEFRAUD. — FRAUDI
I. STATUTES. II. OFFENCE GENERALLY. 1. THERE MUST BE AN ACTUAL SE
CRETING, OR ASSIGNING OF THE
GOODS, S 2167. 2. AN INTENT MUST BE SHOWN TO PRE
VENT THE PROPERTY FROM BEING
I. STATUTES. § 2163. By the stat. 13 Eliz., which makes void all conveyances, &c., with intent to defraud creditors, it is provided that the parties to any “such feigned, covinous, or fraudulent feoffment, gift, grant, alienation, bargain, conveyance, bonds, suits, judgments, executions,” &c., “ which at any time shall wittingly and willingly put in use, avow, maintain, justify, or defend the same or any part of them as true, simple, and done, had, or made bona fide, and upon good considerations; or shall aliene or assign any the lands, tenements, goods, leases, or other things beforementioned, to him or them conveyed as is aforesaid," besides the civil penalty, “ being lawfully convicted thereof, shall suffer imprisonment for one half year without bail or mainprise." By stat. 27 Eliz. the same provision is extended to those concerned in similar devices to defraud purchasers. a
§ 2164. In a leading case reported under this statute, b it was held, in arrest of judgment, by Maule, J., delivering the opinion of his brethren, that an indictment lies under the act, for a fraudulent alienation of real estate. c [The statutes of New York and Pennsylvania will be found in
the 6th edition of this work at $ 2165–6.] a See 2 Russ. on Crimes, 315; b R. v. Smith, 6 Cox C. C. 36. Roberts's Digest, Brit. Stat. 294; c See, for form of indictment, Wh. 1 Chitty's Stat. 385.
II. OFFENCE GENERALLY.
§ 2166. These statutes, so far as concerns the secreting of goods, may be treated as creating a new offence, which, though of recent origin, is of frequent occurrence in the courts. To constitute it - and the statutes are throughout so similar as to make the proceedings under them almost identical — it is necessary that there should be,
1st. An actual secreting, assigning, or conveying of goods, &c., or a reception of the same.
2d. An intent to prevent such property from being made liable for the payment of debts, or in case of deception, a guilty knowledge of such intent.
$ 2167. 1st. There must be an actual secreting or assigning of the goods. — It is not enough that the debtor, in his creditor's face, refuses to surrender property which the creditor claims. Thus it was held that a refusal of a defendant to deliver up a watch to the sheriff's deputy was not within the statutes. d The object of the law is not to make a man indictable who resists process, since for this another procedure exists, but to prevent the secret and covinous disposal of property in such a way as to elude the pursuit of the law and baffle an execution. A pointed illustration of this is the case of a trader, who, after obtaining credit by stocking his store with goods, either hides such goods until such time as he may be able, without suspicion or disturbance, to convert their proceeds to his own use, or consign them to auction under such covers as may enable him to turn them into cash without his creditor's knowledge. It would seem, from analogy to the statutes of Elizabeth, that the offence would continue to be indictable, even if a consideration were received, if the intent to defraud was proved.
$ 2168. 2d. An intent must be shown to prevent the property from being made liable for the payment of debts ; or, in case of receivers, a guilty knowledge of such intent. - It is not enough that it should be that the debtor's object was to give a preference to a particular creditor, e
All creditors are protected by the act, and as “creditors," it seems, may be classed even those whose debts are not yet due.f It is clearly unnecessary that the prosecutors should be judgment creditors. Thus in New York, g Bronson, J., said: “The language of the act plainly extends to all creditors, and I can perceive no sufficient reason for restricting its construction to such creditors as have obtained judgments for their demands. The fraudulent removal, assignment, or conveyance of property by a debtor, which the legislature intended to punish criminally, usually takes place in anticipation of a judgment, and for the very purpose of defeating the creditor of the fruits of his recovery. If there must first be a judgment before the crime can be committed, the statute will be of very little public importance. This is not like the case of a creditor seeking a civil remedy against a fraudulent debtor. There the creditor must complete his title by judgment and execution, before he can control the debtor in the disposition of his property ; he must have a certain claim upon the goods before he can inquire into any alleged fraud on the part of the debtor. h But this is a public prosecution, in which the creditor has no special interest. The legislature has relieved the honest debtor from imprisonment, and subjected the fraudulent one to punishment, as for a criminal offence. The crime consists in assigning or otherwise disposing of his property, with intent to defraud a creditor, or to prevent it from being made liable for the payment of his debts. The public offence is complete, although no creditor may be in a condition to question the validity of the transfer in the form of a civil remedy.” į
d People v. Morrison, 13 Wend. e Com. v. Hickey, 2 Parsons, 317. 399.
f Johnes v. Potter, 5 S. & R. 519.
g People v. Underwood, 16 Wend. (511) Fifth count. Same, not speci546.
fying goods, with intent to defraud h Wiggins v. Armstrong, 2 John.
persons unknown. Ch. 144.
(512) Sixth count. Same, with ini See generally, Wharton's Prece
tent to prevent property from being dents, as follows:
levied on. (507) Secreting, &c., with intent to (513) Another form on the same statdefraud, &c.
ute. First count. Intent to defraud, (508) Second count. Same, with in
to prevent property from being made tent to defraud, and prevent such liable, &c. property from being made liable for (514) Second count. Same, with inpayment of debts.
tent to defraud another person. (509) Third count. Same. Not spec- (515) Third count. Secreting, asifying property.
signing, &c., with intent to defraud (510) Fourth count. Averring intent to defraud persons unknown. (516) Fourth count Secreting, &c.,