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CHALLENGING TO FIGHT.

Venue

339

What amounts to
Proof of intent

338
339

What amounts to. It is a very high offence to challenge another, either by word or letter, to fight a duel, or to be the *messenger [ *339 | of such a challenge, or even barely to provoke another to send such a challenge, or to fight, as by dispersing letters to that purpose, containing reflections, and insinuating a desire to fight. Hawk. P. C. b. 1, c. 63, s. 3. Thus, a letter containing these words, “You have behaved to me like a blackguard. I shall expect to hear from you on this subject, and will punctually attend to any appointment you may think proper to make," was held indictable (1). Phillips' case, 6 East, 464 ; Rice's case, 3 East, 581.

No provocation, however great, is a justification on the part of the defendant ; Rice's case, 3 East, 581; although it may weigh with the court in awarding the punishment.

On an indictment for challenging, or provoking to challenge, the prosecutor must prove—Ist, the letter or words conveying the challenge ; and 2d, where it does not appear from the writing or words themselves, he must prove the intent of the party to challenge, or to provoke to a challenge.

Proof of the intent.] In general the intent of the party will appear from the writing or words thernselves; but where that is not the case, as where the words are ambiguous, the prosecutor must show the circumstances under which they were uttered, for the purpose of proving the unlawful intent of the speaker (2). Thus, words of provocation, as “ liar,” or “knave,” though a mediate provocation to a breach of the peace, do not tend to it immediately, like a challenge to fight, or a threatening to beat another. King's case, 4 Inst. 181. Yet these, or any other words, would be indictable if proved to have been spoken with an intent to urge the party to send a challenge. 1 Russell, 276 (3).

Venue.) Where a letter challenging to fight is put into the post-office in one county, and delivered to the party in another, the venue may be laid in the former county. If the letter is never delivered, the defendant's offence is the same. Williams's case, 2 Campb. 506.

(1) A challenge to fight a duel out of the state is indictable, for its tendency is to produce a breach of the peace. State o. Farrier, 1 Hawks, 487. State o. Taylor, 1 Const. Rep. 107. The declarations of the second are admissible against the principal. State o. Dupont, 2 M'Cord, 334.

(2) It is a question for the jury whether the party intended a challenge or not. Gibbon's case, 1 Southard, 40, Commonwealth o. Levy, 3 Wheeler's C. C. 245. Wood's case, 3 Ro. gers's Rec. 133. Parole testimony is admissible in explanation of the note. Comm. d. Hart, 6 J. J. Marsh. 120. Expressing á readiness to accept a challenge does not amount to one. Comm. o. Tibbs, 1 Dana, 5:24.

(3) Words insinuating a desire to fight with deadly weapons, as they tend to provoke such combat, may amount to a misdemeanor at common law. Comm. o. Tibbs, 1 Dana, 524.

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Under this head, the evidence required to support an indictment for a [ 340 ] cheat or fraud at common law will be considered. The proofs *regarding prosecutions for false pretences, are treated of in a subsequent part of this work.

In order to support an indictment at common law for cheating, the prosecutor must prove-1st, that the cheat was of a public nature; 2d, the mode in which the cheating was effected; thus if it was by a false token, the nature of such false token must be stated in the indictment, and proved in evidence; 3d, that the object of the defendant in defrauding the prosecutor was successful.

The punishment of this offence is, as in cases of other misdemeanors at common law, fine and imprisonment.

Proof of the nature of the cheating or fraud-affecting the public.] Frauds affecting the crown, and the public at large, are indictable, though they may arise in the course of particular transactions with private individuals (1). 2 Russell, 285. The selling unwholesome provisions, 4 BI. Com. 162, or the giving any person unwholesome victuals, not fit for man to eat, lucri causa, 2 East, P. C. 822, is an indictable offence. Where the defendant was indicted for deceitfully providing certain French prisoners with unwholesome bread, to the injury of their health, it was objected in arrest of judgment, that the indictment could not be sustained, for that it did not appear that what was done was in breach of any contract with th public, or of any civil or moral duty; but the judges, on a reference to them, held the conviction right. Treeve's case, 2 East, P. C. 821. The defendant was indicted for supplying the Royal Military Asylum at Chelsea, with loaves not fit for the food of man, which he well knew, &c. It appeared that many of the loaves were strongly impregnated with alum, (prohibited to be used by 37 G. 3, c. 98, s. 21,) and pieces as large as horse-beans were found; the defence was, that it was merely used to assist the operation of the yeast, and had been carefully employed. But Lord Ellenborough said, “Whoever 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.” Dixon's case, 4 Campb. 12, 3 M. and S. 11.

There is also another head of public cheats indictable at common law, which are directed against the public justice of the kingdom ; such as the doing judicial acts without authority, in the name of another. 2 East, P.

(1) Resp. o. Teischer, 1 Dall. 338. Comm. o. Eckert, 2 Browne, 251. Resp. o. Powell, 1 Dall. 47.

C. 821. There is the precedent of an indictment against a married woman for pretending to be a widow, and as such, executing a bail-bond to the sheriff. This probably was considered a fraud upon a public officer in the course of justice. Ibid. Trem. P. C. 101 ; Cr. Cir. Com. 78. So it was said by Lord Ellenborough, that he had not the least doubt that a person making use of a false imprisonment for the purpose of perverting the course of justice, was guilty of an offence punishable by indietment. Omealy v. Newell, 8 East, 364. So it was held, that a person who, being committed under an attachment for a contempt in a *civil cause, counterfeited a pretended discharge as from his [ *341 ] creditor to the sheriff and gaoler, under which he obtained his discharge from gaol, was guilty of a cheat and misdemeanor at common law, although the attachment not being for non-payment of money, the discharge was a nullity. Fawcett's case, 2 East, P. C. 862. Doubts were entertained by some of the judges whether this was not a forgery at common law. Vide post, title Forgery.

Fraudulent malversations or cheats in public officers, are also the subject of an indictment at common law (1), as against overseers of the poor for refusing to account; Commings' case, 5 Mod. 179; 1 Bott, 332; 1 Russell, 288; or for rendering false accounts. Martin's case, 2 Campb. 269; 3 3 Chitty, C. L. 701; 2 Russell, 288. Upon an application to the Court of King's Bench, against the minister and churchwardens of a parish, for misapplying monies 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, . &c. of St Botolph, 1 W. Bl. 443. Vide post, title, Offices.

Again, where two persons were indicted for enabling persons to pas their accounts with the pay-office, in such a 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. Bembridge's case, cited i East, 136.

Another class of frauds affecting the public, is cheating by false weights and measures, which carry with them the semblance of public authenticity. Thus, the counterfeiting the general seal or mark of a trade upon cloth of a certain description and quality is indictable. Worrel's case, Trem. P. C. 106; 2 East, P. C. 820. So where the defendant 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. Per Cur. Pinkney's case, 2 East, P. C. 820.

What cheats are not indictable.] It is not, however, every species of fraud and dishonesty in transactions between individuals which is the subject matter of a criminal charge at common law; but in order to constitute it such, it must be an act affecting the public, such as is public in its nature, calculated to defraud numbers, and to deceive the people in general. 2 East, P. C. 816.

Where an imposition upon an individual is effected by a false affirmative or bare lie, in a matter not affecting the public, an indictment is not sustainable (2). Thus where an indictment charged the defendants with

(1) Resp. o. Powell, 1 Dall. 47. Commonwealth o. Wade, Whart. Dig. 166.

(2) Commonwealth v. Warren, 6 Mass. 72. But when a man induces another by false rep. resentations, and false reading, to sign his name to a note for a ent amount han that

selling to a person eight hundred weight of gum, at the price of seven pounds per hundred weight, falsely affirming that the gum was gum seneca, and that it was worth seven pounds per hundred weight, whereas it was not gum seneca, and was not worth more than 31. &c., the indictment was quashed. Lewis's case, Sayer, 205.

So where the party acompanies his assertion with an apparent ( *342 | *token of no more value than 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) &c., 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 had 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. Lara's case, 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, 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 measure, but so much less, &c., the indictinent was quashed on motion, as containing no criminal charge. Wilders' case, 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. Channel's case, 2 Str. 793 ; 1 Sess. Ca. 366 ; 2 East, P. C. 818. So, selling sixteen gallons of ale as eighteen-Lord Mansfield said, “it amounts only to an unfair dealing, and an imposition on 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.” Wheatly's case, 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, &c. this was held not to be an indictable offence. Lord Ellenborough said, that if the case had been, that the iniller 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

agreed upon, it has been held to be a cheat for which he may be indicted. Hill o. State, 1 Yerger, 76.

Wheatly's case, (supra) and the other cases, as not being indictable Haynes's case, 4 M. & S. 214; vide Wood's case, 1 Sess. Ca. 217; 2 Russell, 296 (1).

*The indictment stated that the defendant came to M. in the [ *343) name of J., to borrow 51., on which M. lent her the 5l., ubi revera 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 he was, upon which he, let him have the goods, and upon an action, he pleaded infra ætatem, 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.” Glanvill's case, 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 might be supposed, from using the words, “ does with others conspire," of an indictment for conspiracy.

CHILD STEALING.

The offence of child-stealing is now provided against by the 9 G. 4, c. 31, s. 21, which enacts, "if any person shall maliciously, either by force or fraud, lead or take away, or decoy or entice away, or detain any child under the age of ten years, with intent to deprive the parent or parents, or any other person having the lawful care or charge of such child, of the possession of such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong ; or if any person shall, with any such intent as aforesaid, receive or harbor any such child, knowing the same to have been, by force or fraud, led, taken, decoyed, enticed away, or detained as hereinbefore mentioned, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned with or without hard labor in the common gaol or House of Correction, for any term not exceeding two years; and if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment. Provided always, that no person, who shall have claimed to be the father of an illegitimate child, or to have any right to the possession of such child, shall be liable to be prosecuted by virtue hereof, on account of his getting pos

(1) Poople o. Babcock, 7 Johns. 201. Commonwealth o. Warren, 6 Mass. 72. People o. Stone, 9 Wend. 182.

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