Majority
p. 201The People against Babcock. NEW-YORK, Nov. 1810.
Headnote
To constitute a anTidietaMe oft monlaw^itmust 1)0 suc,‘ a as would anect the public,- such a deception that where there is cheat.P Where common prudence cannot guard against; as by using false weights and measures, Qr false tokens, or A. bad a judgment against f bYpay]u«'lemo' ».ei in im(t giving a note for the residue, on a receipt in full the*'1 ju'fginentf PpSf receipt without paying the mo«cy or giving the note; and the indictment with^having'ob-under false acts, colours and protcnce?, and unthat hojiaiTthe pocket, slid ll's j"™1¡!¡IPí'y .", iv e the residue, it was held that ihcre was no faU<* token * bul only a false assertion, and that an Indictment would not Re.THE defendant was convicted, at an oyer and ter iner held in Oneida county, in June last, of a cheat. The indictment stated, that one Rufus Brown and Ira Dickinson had obtained a judgment before one of the ° ° .justices of the peace, in and for the county of Oneida, • n 7 , , , , . , _ , ... „ against Babcock, and that the said Babcock, being an evil-disposed person, on the 4th of August, 1807", at, &c. falsely, fraudulently, and deceitfully, and by false arts, colours and pretences, did obtain, acquire, and get into his hands and possession of and from the said Rufus Brown, who was a partner with the said Dickinson, and had a joint interest with the said Dickinson in the said the cost. Utica, August 4th, 1807. Rufus Bn judgment, a certain paper writing, being a receipt for eighteen dollars, and discharge of the said judgment in the words and figures following: “ Mr. Reuben Leaven- . worth, Esquire, Sir, Lhave received of Oliver Babcock eighteen dollars, for that judgment obtained before you, in favour of Rufus Brown and Ira Dickinson, and wish you to discharge the same by the said Babcock’s paying 9 under colour and pretence that he the said Babcock , . , - , . , ,, , . would then and there pay ten dollars m cash immediately towards the said judgment, and give his note for the residue immediately, and under pretence that he had the money in his pocket; and that the said Babcock did then and there fraudulently and unlawfully carry off the e .... \ said paper writing without paying the said ten dollars, which he pretended that he was then and there ready to pay, and without giving his note for the residue as aforesaid, with an intent to deceive and defraud the said Rufus Broxun, and also the said Ira Dickinson, of the v '
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money due by virtue of the judgment aforesaid, to the, great damage, &c.
Gold moved in arrest of judgment, on the ground that the offence, as charged, was not indictable at common law.. Words or assertions, however artful and false, if unaccompanied with such visible and false tokens as may affect and deceive the public at large, will not amount to an indictable offence. In the case of The King v. Wheatley,[10] Lord Mansfield, held that the offence, to be indictable, must be such a one as affects the public; as ^ man uses false weights and measures',., and sells by them,, or uses them in the general course of his dealing;. so if. he defrauds another, under false tokens; for these are deceptions against which common, prudence cannot sufficiently guard. Mr. East,[11] in his Treatise on the Crown Law, has adopted this distinction between such frauds or cheats as are indictable, and suck as are not; He has examined all the cases on the subject,, and shown most clearly, that a private cheat, though accompanied with false assertions, is not indictable. He has laid down a rule,, extracted from a confused mass of cases, which will furnish an- easy and sure guide in regard to such, offences.
Van Vechten, Attorney-General, and N. Williams,, contra. Since the statutes relative to obtaining money or goods by false tokens, or under false pretences, there are very few frauds that do not come within the purview of that statute. For this reason we find very few modern cases of indictments at common law for such cheats. But indictments in cases like the present are to be found in the more ancient books, and are supported by the principles laid down by some of the best elementary writers.
Hawkins[11] says, those cheats “ which are punishable at common law, may, in general, be described to be débcitful practices .in defrauding or endeavouring to d'e-
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.fraud another of his own right, by means of some artful device, contrary to the plain rules of common honesty; as by playing with false dice, or by causing an illiterate person to execute a deed, to his prejudice,, by reading it over to him in words different from those in which it was written,” &c.
Blackstone[10] classes .cheating among -offences against public trade, which are indictable; and he says, “ Any deceitful practice, in cozening another by artful means, whether, in matters of trade or otherwise, as by playing with false dice, or the like, is punishable with line, imprisonment and the pillory.”
Comyns,[11] in his Digest, says, “ Justices of the peace may inquire of any thing done to the fraud or deceit of another; as if a man read a writing to an illiterate person, in other words than those in which it is written, by which means he seals it.tj:
Lord Holt[7] said, “ That all cheats and abuses of tradesmen are indictable.” And in Rex v. Wheatley,
Wilmot, J. said, “ That where false tokens are produced, or such methods taken to cheat and deceive, as people cannot, by ordinary care and prudence be guarded against it, is an indictable offence.”
• In the case of The Spueen v. Crisp,[8] an indictment was held to lie for tearing an account, after it was signed and settled; and the indictment charged that A. got it into his hands per falsas et sinistras insinuationes, and vi et armis tore it, &c. A motion was made in that case to quash the indictment, because it was a private offence, but the court denied the motion.
In the case of The Spleen v. Mackerty and another,[9] the defendants were indicted for selling wine for Lisbon wine, when it was not; one of them pretending to be a wine-merchant and a dealer in Lisbon wine, when he was not, affirmed it to be Lisbon wine, and obtained from the party a quantity of hats; and the indictment was held to lie. The court said there was enough set out
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in the indictment to show the defendants to be cheats, Mr. East treats this as a case of a conspiracy; but there is nothing in the indictment to warrant that assertion.[10] He thinks the indictment must be for a conspiracy, or for using false public tokens, as false dice, false measures, &c. but in the cases he has cited, it is declared that false dice or false tokens, &c. may be adopted as different modes of cheating. Independent of the statute, an indictment would lie at common law for cheating with false tokens, though not for false pretences.[11] In regard to the former, the statute of 33 Hen. VIII. merely authorized corporal punishment to be inflicted; but it was before punishable by fine and imprisonment. It is true no indictment lies for a cheat effected by a bare naked lie; and such arc the cases cited by East, in supjiort of his doctrine; but it is otherwise, where there is an artful contrivance against which common prudence could not well guard. There are precedents of indict? ments alsp to be found in cases similar to the present.[12]
Lord Kenyon said that the case of the King v. Wheatley (2 Burr. 1125.) established the true boundary between frauds that were, and those that were not indictable at common law. That case required such a fraud as would affect the public; such a decep? tion that cpmmpn prudence and care were not sufficient to guard against it, as the using of false weights and measures, or false tokens, or where there was a conspiracy to cheat. Thus, in the case of Jones, (1 Salk. 379.) who obtained money of A., pretending to have a command from B., whereas B. did not send him; but as he came tvith no false token, it was held not to be indictable. The offence was nothing more than telling a lie. So in the case of The King v. Lara, (6 Term Rep. 565.) the defendant got possession of certain lottery tickets, the property of A., pretending that he wanted to purchase thein, and he delivered to A. a fictitious order on a
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hanker, knowing that he had no authority to draw it, by ’ , . , , . _ . , . , means of which he got possession of the lottery tickets. On the argument in arrest of judgment, it was admitted, that as this xvas a fraud upon a private individual, the prosecutor must show that the fraud xvas effected by means of a false token, as well as a false pretence, and one of such a nature as that ordinary prudence could not guard against it. The counsel for the croxvn contended, that the false pretence xvas the alleged xvish to purchase, and the false token xvas the order. But the court said that there xvas no false token; that it xvould be ridiculous to call the check a false token, and that all depended upon the credit due to the defendant’s assertion, and the judgment xvas arrested.
In the present case xve search in vain for the false to ken. There xvas nothing beyond the defendant’s false assertion that he xvas ready to pay the judgment. There xvas not even the production of either note or money; and common prudence xvould have dictated the withholding of the receipt until the money xvas paid and the note drawn. To support this indictment xvould be to overset established principles.
The judgment must, therefore, be arrested.
Judgment arrested..