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with loaves not fit for the food of man, which he well knew, etc It appears that many of the loaves were strongly impregnated with alum (prohibited to be used by repealed statute 37 Geo. 3, c. 98, *s. 21), and pieces as large as horse-beans were found; the de- r*oqj fence was, that it was merely used to assist the operation of the *■ yeast, and had been carefully employed. But Lord Ellenborough said, "Who ever introduces a substance into bread, which may be injurious to the health of those who consume it, is indictable if the substance be found in the bread in that injurious form, although, if equally spread over the mass, it would have done no harm." R. v. Dixon, 4 Camp. 12; 3 M. & S. 11.
False accounting, etc., by public officers. Fraudulent malversations or cheats by public officers, are also the subject of an indictment at common law: thus, overseers of the poor are indictable for refusing to account;1 R. v. Comming, 5 Mod. 179; 1 Bott. 232; 2 Russ. Cr. 514, 5th ed.; or for rendering false accounts. R. v. Martin, 2 Campb. 269; 3 Chitty, C. L. 701; 2 Russ. Cri. 514, 5th ed. Upon an application to the court of King's Bench, against the minister and churchwardens of a parish, for misapplying moneys collected by a brief, and returning a smaller sum only as collected, the court, refusing the information, referred the prosecutors to the ordinary remedy by indictment. R. v. Ministers, etc., of St. Botolph, 1 W. Bl. 443. Vide post, tit. "Officers."
Again, where two persons were indicted for enabling persons to pass their accounts with the pay-office, in such way as to defraud the government, and it was objected that it was only a private matter of account, and not indictable, the court decided otherwise, as it related to the public revenue. R. e. Bembridge, cited 6 East, 136.
False weights and measures. Another class of frauds affecting the public, is cheating by false weights and measures, which carry with them the semblance of public authenticity.
It has never been doubted that selling by false weights and measures is at common law an indictable offence, though selling a less quantity than is pretended is not so. Per Buller, J., R. v. Young, 3 T. R. 304; 2 Russ. Cri. 5th ed. Thus, if a person has measured corn in a bushel, and put something in the bushel to fill it up, or has measured it in a bushel short of the stated measure, he is indictable. R. v. Pinkney, 2 East, P. C. 820. See R. v. Wheatley, infra, p. 396.
Cheating with cards, dice, etc. This was considered an indictable offence at common law, but it is now regulated by the 8 & 9 Vict. c. 109, s. 17, which provides that "every person, who shall by any fraud or unlawful device, or ill practice in playing at or with cards, dice, tables, or other game, or in bearing a part in the stakes, wagers, or adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of any game, sport, pastime, or
1 Resp. v. Powell, 1 Dall. 47; Commonwealth v. Wade, 1 Whart. Dig. 347.
exercise, win from any person to himself, or any other or others, any sum of money or valuable thing, shall be deemed guilty of obtaining such money or valuable thing from such other person by a false pretence with intent to cheat or defraud such person of the same, and, being convicted thereof, shall be punished accordingly."
Tossing with coins was held by the C. C. R. to be a pastime or exercise if not a game within the meaning of this section. R. v. O'Connor, 15 Cox, C. C. R. 3. When it was stated in the indictment that the defendant won certain moneys from one H. F. B., but did not say to whom the money belonged, the indictment was held good, *39"1 *because followed the words of the statute. R. v. Moss, J Dears. & B. C. C. 104. A doubt was also raised in that case, whether the offence was not completed by winning, even if the money was not obtained.
Using false tokens. The using of false tokens is a cheat at common law. The question was much considered in R. v. Closs, Dears. & B. C. C. 460; 27 L. J., M. C. 541. There the prisoner was indicted for keeping, and exposing for sale, and for selling to one H. A. F. a picture, upon which he had unlawfully painted the signature of J. L., intending thereby to denote that the picture was an original picture by J. L. This was held, on a motion in arrest of judgment, to be a fraud at common law. Cockburn, C. J., said, in delivering the judgment of the Court of Criminal Appeal, "we have carefully examined the authorities, and the result is, that we think, if a person, in the course of his trade openly and publicly carried on, puts a false mark or token upon an article so as to pass it off as a genuine one, when in fact it was only a spurious one, and the article is sold, and money obtained by means of that false mark or token, that is a cheat at common law." But the indictment was held bad for not alleging with sufficient clearness that it was by means of such false tokens that the defendant was able to pass off the picture as genuine, and obtained the money.
What cheats are not indictable. The following cheats have been held not to be indictable at common law; though many of them would now be so by statute. Most of these decisions are considered as resting on the ground that the cheats to which they relate are not of a public nature.
Where an imposition upon an individual' is effected by a false affirmation or bare lie, in a matter not affecting the public, an indictment is not sustainable.1 Thus, where an indictment charged the defendants with selling to a person eight hundredweight of gum, at the price of seven pounds per hundredweight, falsely affirming that the gum was
1 Commonwealth r. Warren, 6 Mass. 72. But when a man induces another, by false representations and false reading, to sign his name to a note for a different amount than that agreed upon, it has been held to be a cheat, for which he may be indicted. Hill v. State, 1 Yerg, 76. The offence of cheating, when the subject-matter is land and the title to it, ia.not indictable at common law. Commonwealth v. Woodrun, 4 Clark, 207. 8.
gum seneca, and that it was worth seven pounds per hundredweight, whereas it was not gum seneca, and was not worth more than three pounds, etc., the indictment was quashed. R. v. Lewis, Sayer, 205.
So where the party accompanies his assertion with an apparent token of no more value llian his own assertion. Thus, where an indictment at common law charged that Lara, deceitfully intending, by crafty means and devices, to obtain possession of divers lottery tickets, the property of A., pretended that he wanted to purchase them for a valuable consideration, and delivered to A. a fictitious order for payment of money subscribed by him (Lara), etc., purporting to be a draft upon his banker for the amount, which he knew he had no authority to do, and that it would not be paid; but which he falsely pretended to be a good order, and that he liad money in the banker's hands, and that it would be paid, by virtue of 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 check drawn by himself entitled him to no more credit than his bare assertion that the money would be paid. R. v. Lara, 2 East, P. C. 819; 6 T. R. 565; 2 Leach, 652. But such an offence is punishable, as a false pretence under the statute. Vide post, *title "False Pretences." So where the defendant, a brewer, r*ggg was indicted for sending to a publican so many vessels of ale, marked as containing such a measure, and writing a letter, assuring him that they did contain such a measure, when in fact they did not contain such a measure, but so much less, etc., the indictment was quashed on motion, as containing no criminal charge. R. v. Wilder, cited 2 Burr. 1128; 2 East, P. C. 819. Upon the same principle, where a miller was indicted for detaining corn sent to him to be ground, the indictment was quashed, it being merely a private injury, for which an action would lie. R. v. Channell, 2 Str. 793; 1 Sess. Ca. 366; 2 East, P. C. 118. So selling sixteen gallons of ale as eighteen; Lord Mansfield said, "It amounts only to an unfair dealing, and no imposition upon this particular man, from which he could not have suffered but for his own carelessness in not measuring the liquor when he received it; whereas fraud, to be the object of a criminal prosecution, must be of that kind which in its nature is calculated to defraud numbers, as false weights and measures, false tokens, or where there is a conspiracy." R. v. Wheatley, 2 Burr. 1125; 1 W. Bl. 273; 2 East, P. C. 818. Where a miller was charged with receiving good barley, and delivering meal in return different from the produce of the barley, and musty, etc., this was held not to be an indictable offence. Lord Ellenborough said, that if the case had been, that the miller had been 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 he, abusing the confidence of his situation, had made it a color for practising a fraud, this might have presented a different aspect; but as it then stood, it seemed to be no more than the case of a common tradesman, who was guilty of a fraud in a matter of trade or dealing, such as was adverted to in R. v. Wheatley (supra), and the other cases, as not being indictable.1 R. v. Hayne, 4 M. & S. 214; vide R. v. Wood, 1 Sess. Ca. 217; 2 Russ. Cri. 523 (n\ 5th ed. A baker had contracted with the guardians of a parish to deliver loaves of a certain weight to the poor people. The relieving officer gave the poor people tickets, which they were to take to the baker. He was to give them loaves on their presenting their tickets to him, and afterwards to return the tickets, as his vouchers, once a week, with a statement of the amount of the loaves, to the relieving officer, who would give him credit in his account for the amount. The baker was to be paid by the guardians some months later; and by a clause in the contract, the guardians had the power, in case of a breach of contract by the baker, of deducting any damages caused by such breach from the amount to be ultimately paid. The baker supplied the poor people who presented tickets, with loaves short of the contract weight. It was held, that this was a mere private fraud, and not a fraud indictable at common law. R. v. Eagleton, 24 L. J., M. C. 158. Dears. C. C. 515. The prisoner was, however, convicted of attempting to obtain money by false pretences. See that title, post.
The indictment stated that the defendant came to M. in the name of J., to borrow 51., on which M. lent her the 5/., ubi re. verd she never had any authority from J. to borrow the money. The defendant being convicted, on motion in arrest of judgment,' the whole court thought this not an indictable offence. Holt, C. J., put the following case: A young man, seemingly of age, came to a tradesman to buy some commodities, who asked him if he was of age, and he told him *^971 *ne was' uP°n which he let him have the goods, and upon an J action he pleaded infra cetalem, and was found to be under age half a year; and afterwards the tradesman brought an action upon the case against him for a cheat; but, after a verdict for the plaintiff, judgment was arrested. Powell, J., said, "If a woman, pretending herself to be with child, does with others conspire to get money, and for that purpose goes to several young men, and says to each that she is with child by him, and that, if he will not give her so much money, she will lay the bastard to him, and by these means gets money of them, this is indictable." Holt, C. J., added, "I agree it is so when she goes to several, but not to one particular person." R v. Glanvill, Holt, 354. From the last observation of Holt, C. J., it appears that Powell, J., was speaking of an indictment for cheating, and not, as
6pire," of an indictment for conspiracy.
1 People ii. Babcock, 7 Johns. 201; Commonwealth v. Warren, 6 Mass. 72; People v. Stone, 9 Wend. 182; State v. Stroll, 1 Kich. 244 S.
words "does with others con
Abandoning children • •
Neglecting children ......
Abandoning or exposing children. The ill-treatment of children by persons who are their parents or guardians has frequently been the subject of criminal prosecution, and in many cases without success.
In some cases it has been attempted to make the abandonment itself the ground of a criminal prosecution, but it is now definitely settled that abandonment alone, without proof that the child's health was thereby injured, is not sufficient. R. v. Friend, Buss. & Ry. 20; R. v. Cooper, 1 Den. C. C. 454; R. v. Hogan, 2 Den. C. C. 277; 20 L. J., M. C. 219; R. v. Phillpot, Dears. C. C. 179. From what was said by Jervis, C. J., in delivering judgment in the last case, it appears also that the injury must be such as permanently to affect the health of the child, in analogy to the provision of the 14 & 15 Vict. c. 11, s. 1 (24 & 25 Vict. c. 100, s. 26).
These cases, however, assume that if the child's health were permanently injured the parent or guardian would be guilty of a misdemeanor.
The law on the subject is now contained in the 24 & 25 Vict. c. 100, s. 27, which provides that, "Whosoever shall unlawfully abandon or expose any child being under the age of two years, whereby the life of such child shall be endangered, or the health of such child shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for the term of three [now five] years, or to be imprisoned for any term not exceeding two years, with or without hard labor."
Where the mother left the child at the door of its father's house to his knowledge, and he left it there, this was held an "abandonment" by the father. R. v. White, L. R. 1 C. C. R. 311;*40 L. J., M. C. 135.
Where the child was packed up in a hamper, labelled "with care," and directed to the lodgings of the father, and the parcel was delivered in less than an hour, it was held that the life of the child was "endangered." R. v. Falkingham, L. R. 1 C. C. R. 122; 39 L. J., M. C. 47.
Neglecting childron.1 The point whether a person is indictable
1 The course of procedure under the statutes in the several States, in cases of bastardy, is of a civil character, rather than criminal, the object being to determine the paternity, so as to fix the liability for the support of the child, and relieve the community from this burden. Requisites of the allegation under bastardy act. Andrew