common door, and his apartment is feloniously broken and entered, it is burglary in the house of the general owner.1 But if the lodger's room has a separate outer entrance of its own, and no other, the room is the house of the lodger.2 And where rooms in a house are let to several tenants, who enter by a common hall door; if the general owner does not inhabit the house, then each apartment is the separate dwelling-house of its own tenant. Such is the case of chambers in the Inns of Court, rooms in Colleges, and the like. If two have the title to two contiguous dwelling-houses in common, paying rent and taxes for both out of their common fund, yet if their dwellings be separately inhabited, and one be feloniously broken and entered, it is burglary in the dwelling-house of the occupant of that one only, and not of both; but if in such case the occupancy also is joint, the entrance for both families being by the same common door, it is the dwelling-house of both. In all these cases, the offence must be laid accordingly, or the variance will be fatal.

§ 82. The felonious intent, charged in the indictment, is sufficiently proved by evidence of a felony actually committed in the house; it being presumed that the act was done. pursuant to a previous intention.5 If none was committed, then the intent to commit the felony charged must be distinctly proved. And it is not necessary that it be a felony at common law; for if the act has been created a felony by statute, it is sufficient.6

§ 83. The time of the breaking may be inferred by the jury from the circumstances of the case; as, for example, if the

11 Hale, P. C. 556; 4 Bl. Comm. 225; 2 East, P. C. 499, 500; Lee v. Gansell, Cowp. 8; J. Kel. 84.

2 Ibid.; 1 Russ. on Crimes, 800-803.

3 Ibid.; 2 East, P. C. 505; Evans v. Finch, Cro. Car. 473; Rex v. Rogers,

1 Leach, Cr. L. 104; 2 Hale, P. C. 358.

4 Rex v. Jones, 2 Leach, Cr. L. 607; 2 East, P. C. 504.

5 1 Hale, P. C. 560.

62 East, P. C. 511.

goods stolen were seen in the house after dark, and at daylight in the morning were missing. And the fact of breaking a closed door may also be inferred from evidence that it was found open in the morning, and that marks of violent forcing were found upon it.2

1 The State v. Bancroft, 10 N. Hamp. 105.

2 Commonwealth v. Merrill, Thacher's Crim. Cas. 1.

7*

CHEATING.

$84. THE indictment for this offence, at common law, must show, and of course the prosecutor must prove, first, that the offence 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; 2 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;5 and selling Army-bread to the government, by false marks of the weight, fraudulently put on the barrels ; have been held indictable offences at common law. On the other hand, it has been held not indictable for a man to violate his contract, however fraudulently it be broken; or to obtain goods by false verbal representations of his credit in society and his ability to pay for them;8

1 This was stated by Ld. Mansfield as indispensably necessary to render the offence indictable. See Rex v. Wheatley, 2 Burr. 1125; cited with approbation by Lord Kenyon, as establishing the true bounds between frauds which are and are not indictable at common law, in Rex v. Lara, 6 T. R. 565. And see 3 Chitty, Crim. L. 994; Cross v. Peters, 1 Greenl. 387, per Mellen, C. J.; The People v. Stone, 9 Wend. 182; The State v. Justice, 2 Dev. 199; The State v. Stroll, 1 Rich. 244.

2 Leeser's case, Cro. Jac. 497.

3 Serlested's case, Latch, 202.

4 Per Ld. Ellenborough, in Omealy v. Newell, 8 East, 364, 372.

5 Rex v. Dixon, 3 M. & S. 14.

6 Respublica v. Powell, 1 Dall. 47.

7 Commonwealth v. Hearsey, 1 Mass. 137.

8 Commonwealth v. Warren, 6 Mass. 72.

4

or, tortiously to retain possession of a chattel; or, tortiously to obtain possession of a receipt;2 or, of lottery tickets, by pretending to pay for them by drawing his check on a banker with whom he had no funds; or, to receive good barley from an individual to grind, and instead thereof to return a musty mixture of barley and oatmeal; or, fraudulently to deliver a less quantity of beer than was contracted for and represented; or, fraudulently to obtain goods, on his promise to send the money for them by the servant who should bring them; or, to borrow money or obtain goods in another's name, falsely pretending to have been sent by him for that purpose; or, falsely and fraudulently to warrant the soundness of a horse, or the title to land.8

6

§ 85. Under this head may be ranked the offence of selling unwholesome food, which was indictable by the common law, and by the statute of 51 Hen. 3, st. 6.9 In such case, it is immaterial whether the offence be committed from malice or the desire of gain; nor whether the offender be a public contractor or not, or the injury be done to the public service or not; nor that he acted in violation of any duty imposed by his peculiar situation; nor, that he intended to injure the health of the particular individual for whose use the noxious articles were sold; the essence of the offence consisting in doing an act, the probable consequences of which are injurious to the health of man.10

1 The People v. Miller, 14 Johns. 371.

2 The People v. Babcock, 7 Johns. 201.

3 Rex v. Lara, 6 T. R. 565. But see contra, 3 Campb. 370.

4 Rex v. Haynes, 4 M. & S. 214.

5 Rex v. Wheatly, 2 Burr. 1125. Goodhall, 1 R. & Ry. 461.

6 Rex v.

7 Regina v. Jones, 1 Salk. 379; Rex v. Bryan, 2 Stra. 866.

8 Rex v. Pywell, 1 Stark. R. 402; Rex v. Codrington, 1 C. & P. 661.

See also, Winsbach v. Stone, 2 Watts & Serg. 408.

9 4 Bl. Comm. 162; 2 East, P. C. 822.

10 Ibid.; 2 Chitty, Crim. L. 557, n.; 3 M. & S. 16, per Ld. Ellenborough; Rex v. Treeve, 2 East, P. C. 821; 1 Russ. on Crim. 109.

§ 86. To cheat a man of his money or goods, by using false weights or false measures, has been indictable at common law from time immemorial. In addition to this, cheating by false "privy tokens and counterfeit letters in other men's names," was made indictable by the statute of 33 Hen. 8, ch. 1, which has been adopted and acted upon as common law in some of the United States, and its provisions are be lieved to have been either recognized as common law, or expressly enacted, in them all. Under this statute it has been held, that the fraud must have been perpetrated by means of some token or thing visible and real, such as a ring or key, or the like; a verbal representation not being sufficient; or else by means of a writing, either in the name of another, or so framed as to afford more credit than the mere assertion of the party defrauding.2

§ 87. In the second place, the indictment must show, and the prosecutor must prove, the manner in which the cheating was effected; as, for example, if it were by a false token, the particular kind of token must be specified; but if several tokens or means are described, it will be sufficient if any one of them be proved.1

3

1 Commonwealth v. Warren, 6 Mass. 72; The People v. Johnson, 12 Johns.

292.

2 2 East, P. C. 689; 3 Chitty, Crim. Law, 997; Rex v. Wilders, cited in 2 Burr. 1128, per Ld. Mansfield. The statute of 30 Geo. 2, ch. 24, was enacted to supply the deficiency of the existing law against cheating, by rendering it an indictable offence to cheat another of his money or goods, by any false pretences whatsoever. Similar statutes have been enacted in many of the United States; but they are generally construed to extend only to such pretences as are calculated to mislead persons of ordinary prudence and caution. See Rex v. Young, 3 T. R. 98; Rex v. Goodhall, 1 R. & Ry. 461; The People v. Williams, 4 Hill, N. Y. R. 9; The State v. Mills, 5 Shepl. 211; Commonwealth v. Wilgus, 4 Pick. 177; Commonwealth v. Drew, 19 Pick. 179; Commonwealth v. Call, 21 Pick. 515; The People v. Galloway, 17 Wend. 540.

3 Rex v. Mason, 2 T. R. 581; 2 East, P. C. 837.

4 Rex v. Dale, 7 C. & P. 352; Rex r. Story, 1 R. & Ry. 80; The State v. Dunlap, 11 Shepl. 77; The State v. Mills, 5 Shepl. 211; 14 Wend. 547, per Walworth, C.; Rex v. Perrott, 2 M. & S. 379.