quently executed, to use it otherwise, does not make the act criminal under these statutes. One does not violate these statutes who puffs the goods he is selling, so long as what he says is mere general commendation and opinion. A man who borrowed money on an outlying city lot, and at the time of the loan said to the lender, that the lot was nicely located, an excellent residence lot, only a little way from the business part of town, on a street leading right to the center of the city, and easily worth $1,200, was prosecuted for obtaining money by false pretenses; but the court held that all he said was mere general puffing and matter of opinion, which are no basis for a criminal charge under these statutes. Nicely located means one thing to one man, another to another, and it is doubtful if either party could say what it meant or had any definite idea on the subject; the value was clearly nothing but matter of opinion (57). But if there be a false pretense as to matter of fact, the criminality is no less by reason of the fact that it is united with matter of promise or opinion. One who obtained money by pretending that he was a single man and promising to marry the prosecutrix was guilty of obtaining money by false pretenses. Though it is probably true that his promise to marry helped to obtain the money, yet it is quite certain that without the false pretense he would not have obtained it (58). The pretense may be by action as well as by word or writing. One who dressed in the college uniform to induce a tradesman to think that he was a

(57) People v. Jacobs, 35 Mich. 36.

(58) Queen v. Jennison, 9 Cox C. C. 158.

student in the college, and thereby obtained goods on credit, was held to have obtained them by false pretense within the meaning of these statutes, though he said not a word about it (59).

§ 156. What is obtaining. If by false pretense one induces another to part with the possession only of his property and the taker then converts the property to his own use, this is clearly larceny at the common law; and as the statutes were enacted to supply the defects of the common law, what is criminal at the common law would seem not to be within the scope of the statutes. Such has been the interpretation by the courts.

§ 157. What are goods, wares, and merchandise. What could not be the subject of larceny cannot be the subject of the offense under these statutes. Therefore, obtaining a receipt by pretense would not be within the intent of the statute. The debt still remains, the fraud avoids the receipt, and the facts may be shown by parol. If a dog could not be stolen, which we have seen is a debated point, it is not within the statute to obtain one by false pretense. As one could not be convicted for stealing another's services, obtaining personal services by fraud would not be within the statute. As land is not a subject of larceny, a conveyance of the title obtained by fraud is not within the statutes. To all the statements above made, the qualifications should be added that the legislature might make such acts criminal, and it may be that this has been done in some of the states.

§ 158. The essential intent. This is a crime with two

(59) Queen v. Barnard, 7 Car. & P. 784.

essential criminal intents, the same as larceny, and these are to acquire the property and deprive the owner of it permanently. If the intent was not to acquire the property or not for the purpose of defrauding the owner the statute is not violated. A pauper who fraudulently told the overseer of the poor that he had no shoes, designing thereby to avoid being set to work on the road, was supplied with a pair; and it being then discovered that he had a pair before, he was prosecuted for obtaining goods by false pretense. The court held that he could not be convicted, for he made the fraudulent statement without any design to obtain goods thereby (60).

An intent to return the stolen property to the owner at some indefinite future day is held not to be sufficient to prevent the act of taking being larceny if the taker has not the power to return it after executing the purpose for which he took it, as if he took it to pawn. The same rule would seem to apply to this crime. But it was held that one who obtained money from another for a piece of land on representation that he owned it, intending at the time to buy it and immediately making a contract to purchase it and paying part of the price, was not guilty under this statute, though he never completed his intended purchase (61).

SECTION 10. MALICIOUS MISCHIEF.

§ 158a. In general. Malicious mischief is a common law offense, and consists in killing the animals or injur

(60) Rex v. Wakeling, Russell & R. 504. (61) Fay v. Commonwealth, 69 Va. 912.

ing other property of another, without hope or desire of gain, but out of a spirit of wanton cruelty or wicked revenge. The absence of motive and expectation of gain distinguishes it from larceny. If the animal of another is killed on the premises of the defendant to prevent it doing injury to him or his property, and when no other suitable means appears to be available and sufficient, the offense is not made out; it has even been held that if an owner of a pleasure resort destroys a boat on his pond to prevent continued trespasses by it, and after repeated removals of it, he is entitled to have submitted to the jury the question as to whether he did it out of revenge or to protect his possession (62). One who shoots a dog approaching him in a vicious and threatening manner on the highway and causing him to fear that he will be bitten by it, is not guilty of malicious mischief, though he well knew that the dog was in the habit of rushing out in this manner when anyone passed in the road, and other dogs in the community had the same habit (63). It has been said that at the common law no injury to real property would be more than a civil wrong; but, however this may be, there are now statutes in most of the states making it criminal to injure maliciously any orchard, tree, shrub, or building, etc. (64). If the injury is done by the accused under a claim of ownership, the necessary malice is evidently lacking and the injured party must seek his redress in his action for the tort.

(62) People v. Kane, 131 N. Y. 111.

(63) Nehr v. State, 35 Neb. 638.

(64) State v. Watts, 48 Ark. 56.

1

CHAPTER X.

CRIMES AGAINST THE PUBLIC PEACE AND WELFARE.

§ 159. Common barratry, maintenance, and champerty. One who frequently stirred up suits and quarrels between the people was considered guilty of a misdemeanor in England called common barratry. One who officiously meddled in a suit that in no way belonged to him, by assisting either party with money or otherwise to prosecute or defend it, was considered guilty of another misdemeanor called maintenance, unless the party he assisted was his near kinsman, servant, or poor neighbor. Champerty was a species of maintenance, being a bargain with the plaintiff or defendant to divide the land or other thing sued for between them if they should prevail, in consideration for the assistance to be furnished. Prosecutions for such acts are practically unknown in this country; though it cannot be supposed that the acts themselves are any less frequent now than formerly; and it has been declared in a number of cases, in which the matter has arisen incidentally, that there are no such crimes in this country.

§ 160. Breach of the peace. Any unnecessary disturbance of the public by noises or violence is a common law misdemeanor. It may amount to some other crime; but it is at least a breach of the peace. To discharge fire