14 Wend. 546 | Court for the Trial of Impeachments and Correction of Errors | 1835
We are called upon in this case to revjew a decision of the supreme court, upon a bill of exceptions taken on the trial of the plaintiff in error, upon an indictment for obtaining goods by false pretences. No bill of exceptions can be taken in a criminal case, to authorize a superior court to correct an erroneous opinion of the court below, or the decision of a jury, upon matters of fact merely. The recent provision of the revised statutes only authorizes the defendant, on the trial of an indictment, to except to decisions of the court in the same cases, and in the manner provided by law in civil cases, 2 R. S. 736, § 21; and it is well settled, in civil cases, that the charge of the court or the decision of the jury upon matters of fact, cannot be reviewed on a bill of exceptions, where there has been no erroneous decision of the court upon matters of law. The remedy of the party who is injured by a misdirection of the court, or an erroneous verdict of a jury, upon mere questions of fact, is by an application for a new trial, and not by writ of error. Graham v. Cammann, 2 Caines’ R. 168. Buller's N. C. 316. Mr. Justice Story, in delivering the opinion of the supreme court of the United States, in the case of Carver v. Jackson, 4 Peters’ R. 80, says, the court to which a writ of error is brought has nothing to do with the charge of the court below upon mere matters of fact, or with its comments upon the weight of evidence. Such observations are understood to be addressed to the jury, as the ultimate judges of matters of fact, merely for their consideration; and are entitled to no more weight or importance than the jurors in the exercise of their own judgments choose to give them. But if the court, in summing up the evidence to the jury, should misstate the law, it would furnish a proper ground for an exception to the charge of the court. Even in that case, however, the exception should be strictly confined to such mistake in the law which was applicable to the case. Whether it is competent for the court before which an indictment for felony is tried, to grant a new trial at the instance of the defendant, where there has been a palpable misdirection of the court upon mere matters of fact,
It is insisted, however, by the counsel for the plaintiff in error, that the charge was erroneous in point of law, because the jury were instructed that it was not necessary for the public prosecutor to establish the falsity of all the pretences charged in the indictment as false ; but that it was sufficient to authorize a conviction, if the jury were satisfied that some of the pretences were false, and that the accused obtained the goods solely and entirely on these pretences, which were proved to be false, with an intent to cheat and defraud the pérsons from whom the goods were thus obtained. On this point I agree with Mr. Justice Nelson, who delivered the opinion of the supreme court, thaV the charge in this respect was more favorable, to the accused than a correct construction of the statute would warrant. It is not necessary, to constitute the offence of obtaining go6ds'1$y""false -pretences; that”the "owner should have been induced to part with his property solely and entirely by pretences which were false; but if the jury are satisfied that the pretences proved to, have been, false and fraudulent were a part of the moving causes which induced the owner to part with his property, and that the defendant would not have obtained the goods, if the false pretences had not been superadded to statements which may have been true, or to other circumstances having a partial influence up
Neither is it necessary, to constitute the statutory offence of which the plaintiff in error was convicted, that any false token should be used, or that the false pretences should be such that ordinary care and common prudence were not sufficient to guard against the deception. Such was undoubtedly the rule in relation to cheats which were punishable by indictment by the common law in England. On this subject our English ancestors originally adopted a laser rule of morality than their Scottish neighbors, who very properly held the crime of swindling, or obtaining goods by wilful lying or other false pretences, as on a par in point of moral turpitude with stealing •, and it was punished acordingly under the common law of Scotland. Thus in Hall’s case, 1 Hume’s Crim. Law, 173, the prisoner was convicted, and transported for seven years, for the crime of falsely assuming the character of a merchant, by hiring a shop and filling it with fictitious bales; by which pretence he induced several persons to furnish him with goods on a credit, when he had in fact no intention of carrying on business as a trader. In Scott’s case, 1 Alison’s Crim. Law, 365, the swindling for which the prisoner was convicted, and sentenced to 18 months imprisonment, was the obtaining of hay from a farmer, upon the false and fraudulent pretence that he was the contractor’s clerk, taking up forage for the use of the cavalry. Joanna Richerby was also convicted of swindling in obtaining wearing apparel, by assuming a false name and falsely pretending that she had lost her clothes by shipwreck. In Reid’s case, Burnet, 173, the fraud consisted in falsely assuming the character of an excise officer, and thus obtaining money under the pretence of compounding for the forfeiture on goods that had been smuggled. In Harvey’s case, 1 Alison, 364, the prisoner was convicted, and transported for seven years, for obtaining goods deposited with another by the owner for safe keeping, under the false pretence that he was employed by such owner to receive the goods so deposited ; and
It was found in England, as early as the reign of George the 2d, that the rule of the English common law was not sufficiently rigid to protect the honest and unsuspicious— l that class who stand most in need of protection—against the 'falsehoods and impositions of swindlers ; and a statute was thereupon passed, to remedy the defect of the common law, which is the origin of our own statutory provisions, and of the subsequent English statutes on this subject. These statutes have adopted the principles of the Scottish common law, and the decisions under them, both in this state and in-England, have been substantially the same as in the cases above referred to from Hume, Burnet, and Alison, who are the principal writers upon the criminal law of Scotland, Under these statutes, as in the law of Scotland, the offence consists in intentionally and fraudulently inducing the owner to part with his goods, or other things of value, either by a wilful falsehood or by the offender’s assuming a character he does not sustain, or by representing himself to be in a situation which he knows he is not in. Thus in Aivey’s case, under the English statute, the prisoner was convicted, and transported for seven years, for obtaining pay for the carriage of goods, upon the false pretence that he had delivered the goods and taken a receipt for the same, which he had lost or mislaid, 2 East’s R. 30. So in Witchell’s case, 2 Easts P. C. 830, the obtaining of money upon a false account of the number of workmen employed in the business of a manufacturing establishment, by which the prisoner, who was entrusted to pay them, obtained a larger sum than was due to them for their wages, was held to be within the statute. In Rex v. Jackson, 3 Campb. R. 370, upon an indictment for obtaining goods under the false pretence of immediate payment, by giving in payment a check on a banker with whom the prisoner had no funds, and with whom
I am aware, from numerous cases which have come under my observation, judicially and otherwise, that the rule of morality established by the decisions under these statutes, and by the common law of Scotland, has been deemed too strict for those who, in 1825 and subsequently, have been engaged in defrauding widows and orphans, and the honest and unsuspecting part of the community, by inducing them to invest their little all, which in many instances was their only dependance for the wants and infirmities of age, in the purchase of certain stocks of incorporated companies, which the vendors fraudulently represented as sound and productive, although they at the time knew the institutions to be insolvent, and their stock perfectly worthless. But I am yet to learn that a law which punishes a man for obtaining the property of his unsuspecting neighbor by means of any wilful misrepresentation, or deliberate falsehood, with intent to defraud him of the same, is establishing a rule of morality which will be deemed
It appears from the testimony that the plaintiff in error had been in the habit of dealing with Cochran, Addoms & Co. previous to the time when these goods were obtained, and upon credits of about four months; that when he applied for these goods, they entertained no suspicion as to his credit; that the goods were selected, packed up in a box marked Charles Hayness Boston, which was the place of his residence, and sent on board of the Providence steamboat, according to his direction, to be transported at his expense to the latter place, and taken from thence to his place of residence; and that a receipt was taken therefor from the master of the steamboat, stating that the box of goods was to be transported to Providence and delivered to the Boston waggoner, who receives goods at Providence and delivers them at Boston according to the marks and addresses on the packages; and one of the prosecutors, who was a witness, testified that after the box was delivered on board the steamboat, as directed by Haynes, he considered it as being at the risk of the latter if it was lost or stolen. After the box had thus been delivered on board the boat, but before Haynes was aware of that fact, the witness heard a report respecting the latter, which induced him to suspect his credit 5 and upon Haynes coming to the store, the witness, without informing him that the goods had already been sent to the steamboat, told him they could not deliver the goods in consequence of having heard that he had a note protested. Upon which occasion the false representations as to his situation and credit were made; and the witness being satisfied therewith, handed to him the receipt and invoice of the goods, and took his note for the same at thirty days. The counsel for the prisoner insisted, and asked the coui't so to instruct the jury, that delivery of the goods on board of the boat was a complete delivery, and that as the
The supreme court considered the delivery of the goods as incomplete and conditional, because the invoice had not been delivered, nor the security for the purchase money given, and because the receipt of the master of the boat was still in the hands of the vendors. I do not understand from the testimony, however, that there was any agreement or understanding between the parties, either express or implied, that the goods should be retained until the invoice should be delivered and a note given for the purchase money; and the receipt of the master of the boat was merely taken by the vendors as a voucher, to show that they had sent the goods on by the boat as directed. From the testimony, it also appears that the possession of the receipt was not necessary to enable the purchaser to obtain the goods upon their arrival at the place of destination. Even where goods are sold upon the understanding that they are to be paid for on delivery, if the goods are delivered without insisting upon payment at the time of delivery, the title passes absolutely to the purchaser, unless there is a special agreement or a usage of trade showing the delivery to be conditional. Delivery of goods also to a servant or agent of the purchaser, or to a carrier or master of a vessel, when they are to be transported by a carrier or by water, is equivalent to a delivery to the purchaser; and the property, with the correspondent risk, immediately vests in the purchaser, subject to the vendor’s right of stoppage in transitu, if the purchaser becomes insolvent before the goods arrive at their place of desti
The right of the vendor to reclaim his goods, as a security for the unpaid purchase money, while in the hands of the middleman, was orginally derived from the court of chancery. It is a mere equitable authority to repossess himself of the goods, upon the insolvency of the vendee; and it cannot be exercised at the mere caprice of the vendor, when no such insolvency exists. Per Lord Stowell, in the case of The Constantia, 6 Rob. Adm. R. 321. To invest the vendor with the right of property and possession of the goods after they have been absolutely delivered to the carrier or middleman, there must be an actual stoppage by a positive exertion of the right, by the vendor or his agent, either by taking corporeal possession of the goods, or by a notice to the carrier not to deliver them to the vendee, or by some equivalent act; and until such right is actually exercised, the right of property and possession remains in the vendee, who may maintain an action of trover against any one withholding the goods from him. But the actual exercise of the right revests the title to the property in the vendor, and enables him thereafter to maintain trover against any one who subsequently to the exercise of this right, obtains possession of the goods and refuses to deliver them to him. Litt v. Cowley, 7 Taunt. R. 169. In the present case the right of possession and of property was actually vested in Haynes, by the delivery on board the steamboat at the time the false and fraudulent pretences were put forth by him; and the vendors had not in fact re-invested themselves with the title to the property by stopping it in transitu. He did not, therefore, in legal contemplation, obtain the possession or delivery of the property by means of the
I therefore, for this reason only, think the judgment of the court below was erroneous, and that it should be reversed.
I think some of the exceptions to the charge of the recorder were well taken, and that the supreme court has erred in deciding otherwise.
The indictment was under the statute against obtaining property by false pretences with intent to defraud. The proof on the trial went entirely to show that the goods were obtained on a previously established credit, without any pretence or representation whatever, and at most, that after being so obtained the defendant succeeded in retaining the possession of them by means of false pretences. If this be the true character of the transaction, the defendant was convicted of an offence not prohibited by law, and for which he certainly was not indicted. Whether it be so or cot, depends on the fact of the delivery of the goods. Addoms, the principal witness for the prosecution, testifies that Haynes had a very good credit with the house of which the witness was partner, that he (Haynes) selected the goods himself, that they were put aside from the rest of the goods, packed up in a box, which was marked on the outside and addressed to Charles Haynes, Boston, being the place of his residence; that the, goods wore afterwards sent to the Provieence steamboat, according to Haynes’ directions, and a receipt taken by the cartman,
But the, supreme court thinks that although the property was undoubtedly for some purposes to be considered delivered, yet the delivery was “ incomplete and conditional,” so that the vendors had the right to resume the possession. If this were conceded, I do not see how it affects the present question, unless the offence charged wras that of preventing the vendors from resuming the possession by means of false pretences, which it requires no argument to show would not sustain an indictment. But I find nothing in the case to show that the delivery was “ incomplete and conditional;” indeed I am not sure that I comprehend what is meant by an incomplete delivery, but presume it means, at most, no more than a conditional delivery ; and to constitute a conditional delivery, it is necessary the condition should be express. 4 Mass. R. 405. Furniss v. Hone, 8 Wendell 247. The circumstances from which the supreme court infer that the delivery was conditional, are, I. The invoice had not been delivered; 2. Security for the purchase money had not been given; and 3. The receipt of the master of the boat was in the hands of the vendors. The first and last of these circumstances no way affect the fact or character of the delivery; the invoice or bill of the goods was immaterial, and., the receipt of the master of the
I am also satisfied that another exception was well taken ; it is that to the instruction to the jury, that if some of the pretences were false, and they (the jury) believed the goods were obtained solely by means of them, the indictment was sustained, notwithstanding other pretences alleged to be means of obtaining the goods and averred to be false, were not proved to be false. My impression, on the argument, was against this exception; but on re-examining the opinion of the supreme court, their views on this point appear to me plainly erroneous. The offence of obtaining goods by false pretences is combined of two distinct elements, to wit, false pretences and obtaining the goods; neither of them alone constitutes an offence. An indictment, therefore, must set forth the pretences by which the goods were obtained, and expressly aver them to be false ; and when so set forth and averred to be false, they, together with the obtaining of the goods, constitute the offence charged. It follows necessarily, that every pretence thus set forth and charged to be false, is made a substantive part or constituent element of the offence for which the indictment is found, and of course cannot be deemed immaterial, much less impertinent. The distinction between material and immaterial averments in an indictment is settled to be, that if the averment be connected with the charge, it must be proved ; but if it be wholly immaterial, or if the averment be totally unconnected with the charge, it need not be proved. 1 Chit
] have another strong objection to the conviction, which is founded in the belief that the false declarations proved were not, under the circumstances in which they were made, false pretences within the meaning of the statute. They were direct answers to distinct interrogatories put to the defendant, and are, I think, distinguishable from those artfully contrived stories, against which only, in my opinion, the statute was designed to guard. To say, as in this case, that an untrue reply to an inquiry made of a person how much he is worth,
It was many years after the act of 30 George 2, before the English courts made any considerable advance towards the construction that is now so much favored. Young v. The King, 3 T. R. 102, may in this respect be considered a pioneer case; and when the facts in it are compared with those of some modern cases, it will be seen how fast of late the new doctrine has been travel-ling. In that case four persons conspired to defraud another, by concertcdly and falsely representing to him, that a large bet had been laid with a colonel in the army that a certain pedestrian would be performed, and that they or some of them had a shares in the bet, thereby inducing him to advance to one of them a sum of money, and become a share-holder in the wager. This, which in truth was indictable at common law as a conspiracy, was held to be within the statute, and the rule was then laid down, that when a party has obtained money or goods, by falsely representing himself to be in a situation in which he was not, or
It can be said, I know, there will be no difficulty if men are honest and tell the truth. All will admit the obligations of truth and honesty; all have admitted them from the beginning of lime; but how feeble have human laws proved in their efforts to enforce them. Does it follow, if men are not honest and will not tell the truth, that they are to be arraigned, and tried, and convicted as felons ? What scheme of criminal jurisprudence could carryout this principle? What prisons could contain the convicts ? We have it from the highest authority that by nature “ all men are liarsand a master judge of the human character has said that “ to be honest, as the world goes, is to be one man picked out of ten thousand.” To punish as a crime, then, what the multitude of offenders make a custom, is to attempt what we can never hope to execute. It is the remark of a profound philosopher, that “ the operation of the wisest laws is imperfect and precarious; they seldom inspire virtue; they cannot always restrain vice; their power is insufficient to prohibit all that they condemn, nor can they always punish the actions which they prohibit.” Though the laws will not justify, yet they must recognize the frailties and imperfections of human nature, and they do deal with men as beings, subject to propensities and passions which they may aid to restrain, but which it is impossible to extirpate. How inconsistent would it be, when the law will not receive a man’s oath if he has sixpence at stake upon it, that it should send him to the state’s prison for an untrue answer to an inquiry into his pecuniary affairs, which he may have the strongest motive for concealing. And how disturbed and uncomfortable would be the condition of a community like ours, where traffic and credit arc infinitely ramified and unceasingly active, if every person dissatisfied with a bargain, or disappointed by a misplaced confidence in the responsibility or punctuality of another, shall be quickened, b}r the prospect of redress or revenge, to recollect some untrue representation made in the course of the transaction—stimulated by the hope of rescinding a bad bargain or of securing a doubtful debt, or irritated by the unexpected loss of what he had supposed a
I cannot concede or conceive that a construction is sound, or fitted to advance the general welfare, which proposes to protect property from loss by impositions which the owners can easily guard against, and exposes reputation and liberty to invasions which no prudence or integrity may always repel. Besides, it is an eutopian idea, that the sanctions of criminal justice can be made co-extensive with moral delinquencies. However agreeable to our sentiments of natural justice it might be to punish every immoral act, it would be quixotic to attempt it. No community ever assumed the obligation of protecting, by penal laws, every member of it from the consequences of his own credulity, imprudence or folly; and if any one should, it would be but following “ false images of good,” that could make no promise perfect. It is impossible for the public to sustain the burthen of redressing every injury or loss which individual credulity or cupidity may bring upon' itself. The most it can do, and what by the statute under consideration it proposes to do, is to protect individuals from those ingeniously contrived frauds and unusual artifices against which common sagacity and an ordinary experience of mankind will not afford a sufficient guard. Beyond this men must trust to their own prudence and caution, with such aids? and redress as may be obtained from the civil tribunals.^
For all and each of the objections I have stated, I am for reversing the judgment of the supreme court.
Opinions were also delivered by Senators Edmonds, Edwards and Maison, concurring with the Chancellor and
On the suggestion of the Chancellor, the court agreed in the first instance to pass only upon the question whether the delivery of the goods on board the steamboat, under the circumstances of the case, was an absolute delivery, and invested the purchaser with' the title as well as the possession of ¡he goods ? and on the question being put, the members of the court unanimously expressed the opinion that the delivery xvas absolute. Whereupon the judgment of the supreme court was reversed.
Judgment reversed.
See note at the commencement of this case.