9 Wend. 182 | N.Y. Sup. Ct. | 1832
By the Court,
The cheat, or fraud, charged in this indictment, is not an offence punishable at common law. A fraud, to be indictable at common law, must be such as affects the public, or is calculated to defraud numbers, and which ordinary care and caution cannot guard against: as if a man uses false weights and measures, and sells by them to
The better opinion seems to be, that in order to render a cheat or fraud indictable at common law, on the ground that it was effected by means of a false token, the token must be such as indicates a general intent to defraud, and therefore is an injury to- the public. A mere privy token, or counterfeit letters in other men’s names, seem not to come within the meaning of the term false token, as used at common law. Mr. Chitty, 3 Chitty’s C. L. 995, says, the cases in which fraud is indictable at common law, seem confined to the use of false weights and measures, the selling goods with counterfeit marks, playing with false dice, and frauds affecting the course of justice, and immediately injuring the interests of the public. Forgery and conspiracy he considers distinct offences.
Mr. East, East's C. L. 817, 820,says,that the generalproposition that frauds effected by means oíf ales tokens ave indictable at common law, applies only to such false tokens as affect the public at large ; such as are calculated to (jefraud numbers, to deceive the people in general, as false weights and measures. Cowp. 323. This view of the common law offence of cheating derives strong confirmation from the provisions of the statute of 38 Hen. 8, ch. 1. By that statute the obtaining goods by privy tokens, or counterfeit letters in other men’s names, &c. is expressly made an indictable offence. As to privy tokens, at least, this statute has always been considered as creatiug a new offence, though counterfeit letters of a certain description were perhaps indictable as forgeries at common law. 2 Lord Raym. 1466. 3 Chitty’s C. L. 997.
It is objected to this indictment, considered as an indictment under the statute: 1. That all the counts are bad for uncertainty, in not alleging that the notes which Filley was induced to endorse for the defendant, by the false pretences set forth in the indictment, were ever negotiated, or that the defendant ever received any money from them, or when and where it was received; 2. That the circumstances stated in the indictment do not sufficiently show the fraudulent intent of the defendant, admitting the representations made by him and by which the endorsements of Filley were procured to have been false, and that a mere general allegation that the act was done with the intent to defraud, is not sufficient; 3. That endorsements of promissory notes are not goods and chattels, or other effects, within the meaning of the statute; 4. And principally, that the pretences are not all negatived in either count of the indictment.
The circumstances stated in the indictment sufficiently show the fraudulent intent of the defendant.
It is not necessary to negative all the pretences set forth in the indictment. Those relied upon by the pleader, and which he expects to prove were false, must be specifically and directly negatived. It is not sufficient to charge that the defendant falsely pretended, &c. setting forth the means used, and then to aver that by the means of such false pretences he obtained the property ; but the pleader must go on as in an assignment of perjury, and falsify by specific and distinct averments such of the pretences as he intends to prove upon the trial were used and were false. 3 Chitty’s Cr. L. 762, 999. 2 id. 163, 311. 2 Maule & Selw. 379. The object of this specification is to give notice to the defendant of what he is to come prepared to answer; and although there be several assignments in one count, it will be sufficient to prove one of them. 2 Ld. Raym. 886. 2 Campb. 138. Croke Ch. 622. If it were necessary to negative all the pretences in the indictment, it would be necessary to prove them all false upon the trial. This it clearly is not. The objection to the indictment on this ground is therefore unfounded.
The only remaining question is whether the court of oyer and terminer had authority to permit a record to be made up in this case as of a judgment upon demurrer. In June term, 1829, the court below quashed the indictment. In November term following, upon the application of the district attorney, and in pursuance of the advice of this court, they vacated the rule quashing the indictment, and permitted the district attorney to make up and file a record, in the same manner and form as if the defendant had demurred to the indictment and judgment had been rendered in his favor thereon. This course was pursued for the purpose of enabling the district attorney to bring a writ of error, as no writ of error can be brought upon an order quashing an indictment. It is like an arrest of judgment for the insufficiency of the declaration; there is no judgment to be affirmed or reversed. In the latter case it is perfectly well settled that the plaintiff has a right
On the whole, therefore, I am of opinion that the two first counts of the indictment are good, and that the judgment of the-court below ought therefore to be reversed.
Judgment reversed.