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Delivering flour But in a more modern case (R.v. Haynes, 4 M. & S. 214.) it was not the produce held not indictable for a miller receiving good barley to grind at of the corn sent, his mill, to deliver a musty and unwholesome mixture of oat and not indictable.

barley meal, different from the produce of the barley. In this case, Ld. Ellenborough C. J. said, — “ The allegation that the quantity

(of meal) delivered was musty and unwholesome, if it had alleged Aliter, furnish- that the defendant delivered it as an article for the food of man, ing unwhole- might possibly have sustained the indictment: but I cannot say some food.

that its being musty and unwholesome necessarily and ex vi termini imports that it was for the food of man, and it is not stated that it was to be used for the sustentation of man, only that it was a mixture of oat and barley meal. As to the other point, that this is not an indictable offence, because it respects a matter transacted in the course of trade, and where no tokens were exhibited by which the party acquired any greater degree of credit, if the case had been that this miller was owner of a soke mill, to which the inhabitants of the vicinage were bound to resort in order to get their corn ground, and that the miller, abusing the confi. dence of this his situation, had made it a colour for practising a fraud, this might have presented a different aspect ; but as it is, it does seem no more than the case of a common tradesman who

is guilty of a fraud in a matter of trade or dealing." Selling bread Defendant, being a baker, was indicted for having supplied the made unwhole- Chelsea Military Asylum with loaves, in which alum was so insome with alum, serted as to be noxious, and it was proved that lumps were found indictable.

in the loaves sufficient to injure the health of those who eat them. It was held by Ld. Ellenborough C. J., and afterwards by B. R., that it was clearly an indictable offence at common law, and that it was no defence, that his intention was to have mixed the alum so carefully that it would only have improved the colour of the bread, without injuring its quality. R. v. Dizon, 4 Campb. 12.

3 M. f. S. 11. cit. 2 Russ. 287. False accounts

It has been held indictable to enable persons to pass their acwith govern

counts with the pay-office, so as to defraud the government. ment.

2 Russ. 288., and case there cited. Frauds by So it appears that prosecutions may be maintained against overparish officers. seers for refusing to account, or for rendering false accounts;

also, for a fraud committed by a parish officer, in procuring the marriage of a pauper in order to burthen another parish. Ibid.

So, for other similar fraudulent practices. Ibid. Falsely pre

A person, falsely pretending that he had power to discharge tending to dis- soldiers, took money of a soldier to discharge him; and being incharge soldiers. dicted for the same, the court held the indictment to be good.

Serlestead's case, 1 Latch. 202.

As there are frauds which may be relieved civilly, and not punished criminally (with the complaints whereof the courts of equity do generally abound); so there are other frauds, which in a special case may not be helped civilly, and yet shall be punished

criminally : thus if a minor go about the town, and, pretending to rending to be be of age, defraud many persons by taking credit for considerable

quantities of goods, and then insist on his nonage, the persons injured cannot recover the value of their goods, but they may indict

and punish him for a common cheat. Barl. 100. Qu. de hoc. Cheating

And in the case of Q. v. Orbell it was holden to be an indictable offence to get a person to lay money on a race, and to prevail

A minor pre

of age.

race.

with the party to run booty; for though the cheat was private in this particular, yet it was public in its consequences. 6 Mod. 42. This is considered to have been a case of conspiracy. 2 Russ. 291.

So where two effected a cheat, by means of the one pretending to be a merchant and the other a broker, and, as such, bartering pretended wine for hats, they were convicted. R. v. Macarthy & Fordenborough, 2 Ld. Raym. 1179. But the ground of that judgment was that it was a conspiracy. 2 East's P. C. 824.

Finally, the distinction which, as it seemeth, will solve almost Selling short all cases of this kind, was taken in the case of R. v. Wheatley, measure. ? Burr. 1125. 1 Blac. Rep. 273. S. C. The defendant was indicted and convicted for selling beer short of the due and just measure, to wit, sixteen gallons as and for eighteen. Upon a motion in arrest of judgment, it was said by the court, This is only an inconvenience and injury to a private person, arising from that private person's own negligence and carelessness in not measuring the liquor, upon receiving it, to see whether it held the just measure or not. “Offences that are indictable must be such as affect the public, as if a man use false weights and measures, and sell by them to all or to many of his customers, or use them in the general course of his dealing: so, if there be any conspiracy to cheat ; for these are A mere impodeceptions that common care and prudence are not sufficient to sition is not

indictable as a guard against. These are much more than private injuries ; they

cheat. are public offences.” But in the present case it is a mere private imposition or deception. No false weights or measures are used; no conspiracy; only an imposition upon the person he was dealing with, in delivering him a less quantity instead of a greater, which the other carelessly accepted. It is only a non-performance of his contract; for which non-performance the other may bring his action. So the selling an unsound horse for a sound one is not indictable. The buyer should be more upon his guard; and the distinction which was laid down, as proper to be attended to in all cases of this kind is this: that in such impositions or deceits where the general common prudence may guard persons against their suffering from rule. them, the offence is not indictable; but where false weights and Distinction. measures are used, or false tokens produced, or such methods taken to cheat and deceive as people cannot by any ordinary care or prudence be guarded against, there it is an offence indictable.

The distinction, therefore, is this; if a person sell by false false weights. weights, though only to one person, it is an indictable offence; but if without false weights he sell to many persons a less quantity Bad measure. than he pretend to sell, it is not indictable. 3 T. R. 104.

R. v. Lara, 6 T. R. 565. This was an indictment at common Drawing false law, charging the defendant with deceitfully intending, by divers cheques. crafty means and subtle devices, to obtain possession of certain lottery tickets, the property of A., pretending that he wanted to purchase them, 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 defrauded the prosecutor of the value. Judgment was arrested, on the ground that the defendant was not charged with having used any false token to accomplish the deceit ; for the banker's cheque drawn by the defendant himself, entitled him to no more credit than his bare assertion that the money would be paid. i VOL. III.

K

Held indict- But in R. v. Jackson, at Gloucester spring assizes, 1813, 3 Campb. able.

370., on an indictment on stat. 30 G. 2. c. 24., where it appeared that the prisoner had obtained property by giving a draft on his banker, and pretending he had cash there to pay it, Bayley J. (before whom the prisoner was tried) said, that this point had been recently before the judges, and that they were all of opinion that it is an indictable offence fraudulently to obtain goods by giving in payment a cheque upon a banker with whom the party keeps

no cash, and which he knows will not be paid. A false affirm- So in R. v. Gibbs, 1 East, 185., Ld. Kenyon again held that an ation is not indictment for a cheat at common law cannot be maintained enough. unless some false token be made use of: a mere false affirmation

is not sufficient. Frauds affect- All frauds affecting the crown and the public at large are ining the crown dictable, though arising out of a particular transaction or contract and the public. with the party. 2 East's P. C. 821. Unwholesome Therefore, an indictment lies for wilfully, deceitfully, and mafood.

liciously supplying prisoners of war with unwholesome food, not

fit to be eaten by man. Treve's case, 2 East's P. C. 821. Enlistment by So, obtaining the king's bounty for enlisting as a soldier by an an apprentice. apprentice reclaimable by his master is an indictable offence at

common law. In such case, the indenture of apprenticeship must be proved by one of the two subscribing witnesses, in order to warrant the conviction. R. v. Jones, Coventry Lent Ass. 1777,

2 East's P. C. 822. 1 Leach, 174. Indictment It is not suflicient for the indictment to allege generally that the

cheat was effected by certain false tokens or false pretences, but it false pretences, must specify and set forth what they were ; but it does not seem &c.

necessary to describe them more particularly than they were de

scribed to the party at the time the fraud was effected. 2 Russ. 297. Punishment. Some of the above offences are punishable not only by fine and

imprisonment, but further with other infamous punishment; (as in Leeson's case, who was three times set on the pillory (a) for cheating with false dice. Cro. Jac. 497.) Others are punishable by fine and imprisonment only, at the discretion of the judges, which is regulated by the circumstances of each particular case. 1 Haw. c. 71. 9 3.

II. By Htatute. The statutes 33 H.8. c. 1., 30 G. 2. c. 24. $1., and 52 G.3. c. 64., relating to cheats by false tokens and false pretences, are now

repealed. 7 & 8 G. 4. By 7 & 8 G. 4. c. 29. § 53., reciting that a failure of justice fre

quently arises from the subtle distinction between larceny and fraud, Obtaining mo

enacts that if any person shall, by any false pretence, obtain from any ney, chattels, &c., by false

other person any chattel, money, or valuable security, with intent pretence, a mis- to cheat or defraud any person of the same, every such offender demeanor. shall be guilty of a misdemeanor ; and, being convicted thereof,

shall be liable, at the discretion of the court, to be transported Punishment.

beyond the seas for the term of seven years, or to suffer such

other punishment, by fine or imprisonment, or by both, as the Not to be ac- court shall award : provided always, that if, upon the trial of any

must state the

1

c. 29.

(a) Abolished by stat. 56 G. 3. c. 138., except in cases of perjury, or subornation of perjury. See title pillory, &c.

person indicted for such misdemeanor, it shall be proved that he quitted if it obtained the property in question in any such manner as to prove larceny. amount, in law, to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor; and no such indict. ment shall be removable by certiorari; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts.

Some of the cases decided upon 30 G. 2. c. 24. (now repealed) 30 G. 2. c. 24. may assist in the construction of the above sect. in 7 & 8 G. 4. (repealed).

By 30 G. 2. c. 24. $ 1., all persons who, knowingly and designedly, by false pretences, should obtain from any persons money, goods, &c. with intent to cheat or defraud any persons, should be deemed offenders, &c.

R. v. Mason, 2 T. R. 581. The defendant was indicted for The false preobtaining money by false pretences ; and on his trial at the sessions tences must be at Worcester he was convicted, and received sentence of transport- set forth in the

. ation for seven years. The defendant brought a writ of error, and assigned for error that it did not appear by the indictment what the particular and specific false pretences were, by which he obtained the money.-Buller J. The question is not a new one: I remember a case when I was at the bar, and I argued it on the analogy to the case in Strange for obtaining a note by false tokens, which entirely governs this. That was a case on the statute 33 H. 8. c. 1., which makes it an offence to obtain money or goods by false tokens. The statute 30 G. 2. c. 24. only enlarges the description of the offence in the statute of H. 8. Both statutes are made in pari materiâ ; and whatever has been determined in the construction of one of them is a sound rule of construction for the other. The judgment was arrested in the case in Strange, because the indictment did not specify the false tokens : then, by the same reason, an indictment on stat. 30 G. 2. c. 24., which speaks of false pretences, must state what the false pretences are; otherwise the indictment is bad : there is no distinction between the two cases; the same objection which held in the one must also prevail in the other. I am of opinion that the objection is fatal. – Grose J. of the same opinion; observing, that this is a charge for a precise crime, and therefore it must be alleged.-Judgment reversed, and the defendant discharged.

An indictment for obtaining money by false pretences, charged And must be that the defendant did falsely pretend to one Mr. Blome, the proved as laid. servant and clerk of R. M. &c. that he had paid a sum of money into the Bank of England ; whereas in truth and in fact he had not, &c., by means of which said false pretence defendant obtained 1061. of the monies of R. M., &c. with intent to defraud them of the same. Mr. Blome proved that the defendant said to him on the occasion referred to, that the money had been paid at the bank, not that he had paid it. —Lord Ellenborough c. I. held this to be a fatal variance : and observed, that “ in an indictment for obtaining money by false pretences, the pretences must be distinctly set out (R. v. Mason, antè), and at the trial they must be proved as laid. An assertion that money had been paid into the bank, is very different from an assertion that it had been paid into the bank by a particular individual.” The defendant was acquitted. R. v. Plestow, Sittings at Westminster after M. T. 49 G. 3. 1 Camp. 494.

c. 29. s. 53.

The indictment An indictment on stat. 30 G. 2. c. 24. for obtaining money by must negative false pretences, must negative by special averment the truth of the by special aver- pretences. It is not enough to charge that the defendant

falsely of the pretences, pretended, &c. (setting forth the pretences), by means of which

said false pretences he obtained the money, &c.; therefore, for want of such averment in the indictment, the court of K. B. reversed the judgment. R. v. Perrot, H. T. 54 G. 3. 2 M. & S. 379. All that is necessary is to show the false pretences used, and that by means of those false pretences the defendant knowingly and designedly obtained the goods in question, negativing also the

pretences. Knowingly and Thus in R. v. Howarth, York Spring Ass. 1821, 3 Stark. Rep. designedly. 26., which was an indictment on stat. 30 G. 2. c. 24. 01. for obtainN.B. These words are not

ing goods by false pretences, Bayley and Best Js. held it unnecesin 7 & 8 G. 4.

sary to aver that defendant did knowingly and designedly pretend, &c., and that it was sufficient to aver that defendant knowingly and designedly did obtain the goods by means of the false pre

tences. Obtaining mo- R. v. Young, Randall, Mullins, and Osmer, 3 T. R. 98. The deney under the

fendants were indicted on stat. 30 G. 2. c. 24., for obtaining money false pretence of

by false pretences. The first count stated that the defendants, sharing a supposed bet said fraudulently intending to obtain the money of the king's subto have been jects, &c. on the 230 December, in the 28th year, &c. at &c. laid with an- unlawfully, knowingly, wilfully, and designedly, did falsely preother.

tend to one Thomas that Young had made a bet of 500 guineas The name of on each side with a colonel in the army then at Bath, that one such other per- W'. Lewis would on the next day run on the high road leading son not being

from Gloucester to Bristol ten miles in one hour, and that Young stated in the indictment, held

and Mullins did go 200 guineas each of and in the said bet, and not necessary.

Randall the other 100 guineas, and that under colour and pretence of such bet, &c.; they obtained from Thomas, as a part of such pretended bet, 20 guineas of the 500 guineas, with intent to cheat and defraud him thereof; whereas, in fact, no such bet had been made, &c. against the form of the statute. The indictment contained several other counts to the same purport. It was objected in arrest of judgment, first, that the transaction itself was

not the subject matter of a criminal prosecution : for that it did Pretence of a not affect the public, and being the representation of a future future trans- transaction, the party had an opportunity of inquiring into the action,

truth of it, and, therefore, it was his own fault it he were deceived. Secondly, that the offence was not charged with sufficient certainty, inasmuch as the colonel's name was not mentioned. – Ld. Kenyon C. J. said, that the stat. of 30 G. 2. c. 24. was considered to extend to every case where a party had obtained money by falsely representing himself to be in a situation in which he was not, or any occurrence that had not happened, to which persons of ordinary caution might give credit. The 33 Hen. 8. c. 1. requires a false seal or token to be used, in order to bring the person imposing into the confidence of the person imposed upon ; but that being found to be insufficient, the 30 G. 2. c. 24. introduced another offence, describing it in terms extremely general. That when the criminal law happens to be auxiliary to the law of morality, he did not feel any inclination to explain it away. Now this offence was within the words of the act; for the defendants have, by false pretences, fraudulently contrived to

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