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False Personation.

414

through the negligence of the gaoler, but the latter makes such fresh pursuit as not to lose sight of him until he is retaken, this is said not to be an escape in law; but if he loses sight of him, and afterwards retakes him, the gaoler is liable to be punished criminally. It is scarcely necessary to add, that the sheriff or gaoler, though he had no other means of retaking his prisoner, would not be justified in killing him in such a pursuit. Hawk. P. C. b. 2, c. 19, s. 12, 13; 1 Hale, P. C. 602.

Proof of escape from the custody of a private person.] The evidence upon an indictment against a private person, for the escape of a prisoner from his custody, will in general be the same as on an indictment against an officer. A private person may be guilty either of a voluntary or of a negligent escape, where he has another lawfully in his custody. Even where he arrests merely on suspicion of felony, (in which case the arrest is only justifiable if a felony be proved,) yet he is punishable if he suffer the prisoner to escape. Hawk. P. C. b. 2, c. 20, s. 2. And if, in such case, he deliver over the prisoner to another private person, who permits the escape, both, it is said, are answerable. Ibid. But if he deliver over his prisoner to the proper officer, as the sheriff or his bailiff, or a constable, from whose custody there is an escape, he is not liable. Id. s. 3; 1 Russell, 377.

Punishment.) A negligent escape in an officer is punishable now by a fine imposed on the party at the discretion of the court. 2 Hawk. c. 19, s. 31; 1 Hale, P. C. 600.

A voluntary escape in an officer amounts to the same kind of *offence, and is punishable in the same degree, as the offence of [ *415 ] which the prisoner is guilty, and for which he is in custody, whether treason, felony, or trespass. But the officer cannot be thus punished until after the original delinquent has been found guilty, or convicted; he may, however, before the conviction of the principal party, be fined and imprisoned for a misdemeanor. 2 Hawk. c. 19, s. 26: 1 Hale, 588, 9; 4 Comin. 130.

Where a private person is guilty of a negligent escape, the punishment is fine or imprisonment, or both. 2 Hawk. c. 20, s. 6.

FALSE PERSONATION.

Offence at common law .
Offence by statute

415 | Personating bail, acknowledging recove415

415 False personation of soldiers and seamen - 416

ry, &c.

Offence at common law.] The offence of falsely personating another for the purpose of fraud, is a misdemeanor at cominon law, and punishable as such. 2 East, P. C. 1010; 2 Russell, 479. In most cases of this kind, however, it is usual, where more than one are concerned in the offence, to proceed as for a conspiracy ; and very few cases are to be found of prosecutions at common law for false personation. In one case, where the indictment merely charged that the prisoner personated one A. B., clerk to H. H., justice of the peace, with intent to extort money from several persons, in order to procure their discharge from certain misdemeanors, for which they stood committed, the court refused to quash the indictment on motion, but put the defendant to demur. Dupee's case, 2 East, P. C. 1010. It is observed by Mr. East, that it might probably have occurred to the court that this was something more than a bare endeavor to commit a fraud by means of falsely personating another, for that it was an attempt to pollute public justice. Ibid.

Offence by stalute.] In a variety of statutes against forgery, provisions are likewise contained against false personation, which in general is made felony. Thus personating the owner

of stock, &c. is made felony, by 1 Wm. 4, c. 66, s. 7. Vide post, title Forgery.

Personating bailacknowledging recovery, &c.] By the 1 Wm. 4, c. 66, s. 11, "if any person shall, before any court, judge, or other person [ *416 ] lawfully authorised to take any recognizance or bail, *acknowledge any recognizance or bail in the name of any other person not privy ar consenting to the same, whether such recognizance or bail in either case be or be not filed; or if any person shall, in the name of any

other person not privy or consenting to the same, acknowledge any fine, recovery, (now both abolished] cognovit actionem, or judgment, or any deed to be enrolled, every such offender shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years nor less than two years” (1).

False personation of soldiers and seamen.] The false personation of soldiers and seamen was made felony by several statutes, the provisions of which are now re-enacted in the 5 Geo. 4, c. 107, by the fifth section of which statute, reciting that, whereas it is expedient that the crime of personating and falsely assuming the name and character of any person entitled 10 prize money or pension, for the purpose of fraudulently receiving the same, shall no longer be punished with death, it is enacted, that, from and after the passing of that act, "whosoever shall willingly and knowingly personate or falsely assume the name, or character of any officer, soldier, seaman, marine, or other person entitled, or supposed to be entitled to any wages, pay, pension, prize money, or other allowance of money for service done in his Majesty's army or navy, or shall personate or falsely assume the name or character of the executor or administrator, wife, relation, or creditor of any such officer or soldier, seaman, marine, or other person, in order fraudulently to receive any wages, pay, pension, prize money, or other allowances of money due, or supposed to be due, for or on account of the services of any such officer or soldier, seaman or marine, or other person, every such person, being thereof convicted, shall be liable at the discretion of the court, to be transported beyond seas for life, or for any term of years not less than seven, or to be imprisoned only, or imprisoned and kept to hard labor in the common gaol or house of correction, for any term not exceeding seven years.” (See also 10 Geo. 4, c. 26.)

(1) See Renoard o. Noble, 2 Johns. Cas. 293.

The statute 5 Geo. 4, c. 107, as well as the former statute makes use of the words "some officer, &c. entitled, or supposed to be entitled," &c. Upon a prosecution, therefore, for such false personation, there must be some evidence to show that there was some person of the name and character assumed, who was either entitled, or might prima facie, at least, be supposed to be entitled to the wages attempted to be acquired. Brown's case, 2 East, P. C. 1007. Where the prisoner was indicted for personating and falsely assuming the character of Peter M'Cann, a seaman on board the Tremendous, and it appeared in evidence that there had been a seanian of the name of M'Carn on board the vessel, but no one of the name of M'Cann ; the prisoner being convicted, the judges held the conviction wrong. They were of opinion that “personating” *must (* 417 ] apply to some person who had belonged to the ship, and that the indictment must charge the personating of some such person. Tannet's case, Russ. and Ry. 351 (a).

It been held that the offence is the same, though the seaman personated was dead at the time of the offence committed. Martin's case, Russ. and Ry. 324 (b); Cramp's case, Id. 327 (c).

Under the 57 Geo. 3, c. 127, it has been held, that all persons present aiding and abetting a person in personating a seaman, are principals in the offence. Pott's case, Russ. and Ry. 353 (d).

FALSE PRETENCES.

Statutory provision

417 | Proof of the intent to cheat or defraud 427 What shall amount to a false pretence 419 | Proof of the obtaining some chattel, moNot necessary that words should be

ney, or valuable security

427 used 423 Proof of the ownership of the property

428 Goods obtained upon an instrument Proof of all being principals

429 void in law

424 | Defendant not to be acquitted, where the Proof of the false pretences

- 425 offence appears to be larceny, - 429 Proof of the falsity of the pretence - 426 | Restitution of the property obtained 429

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Statutory provision.] By the 7 and 8 Geo. 4, c. 29, s. 53, reciting, that a failure of justice frequently arises from the subtle, distinction between larceny and fraud, for remedy thereof it is enacted, “that if any person shall, by any false pretence, obtain from any other person any chattel, inoney or valuable security, with intent to cheat or defraud any person of the same, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to suffer such other punishment by fine or imprisonment, or by both, as the court shall award. Provided always, that if, upon the trial of any person in

(a) 1 Eng. C. C. 351.

(b) 1 Ibid. 324. (c) 1 Ibid. 327.

(d) 1 Ibid. 353.

dicted for such misdemeanor, it shall be proved that he obtained the pro-
perty in question in any such manner as to amount in law to larceny, he
shall not, by reason thereof, be entitled to be acquitted of such misde-
meanor, and no such indictment shall be removable by certiorari; and
no person tried for such misdemeanor shall be liable to be afterwards pro-
secuted for larceny upon the same facts."
[*418 ] *As many of the cases hereafter cited, were determined upon
the repealed statute 30 Geo. 2, c. 24, it will be useful to give the words
of that act, which, after reciting that evil-disposed persons had, by various
subtle stratagems, &c., fraudulently obtained various sums of money,
goods, &c., to the great injury of industrious families, and to the manifest
injury of trade and credit, enacted, that all persons who knowingly and
designedly, by false pretence or pretences, should obtain from any person or
persons money, goods, wares, or merchandizes, with intent to cheat or de-
fraud any person or persons of the same, should be deemed offenders
against law and the public peace, and should be punished, &c. (1).

The ingredients in the offence are the obtaining money, &c., by false pretences, and with an intent to defraud. Barely asking another for a sum of money is not sufficient, and the intent is necessary to constitute the crime. If the intent be made out, and the false pretence used to effect it, it brings the case within the statute. Per Buller, J. Young's case, 3 T. R. 98.

In Joseph Ady's case, 7 C. and P. 140 (a), where, for the defence, an endeavor was made, to show that the prosecutor and his friend went to the defendant, well knowing who he was, for the purpose of making evidence to support a case against him; Patteson, J., is reported to have said, “if the defendant did obtain the money by false pretences, and knew them to be false at the time, it does not signify whether they intended to entrap him or not.” It did not appear in the above case, that the prosecutor had gone with any such intention ; and he swore that he was induced to part with his money through the representations of the defendant, which he stated he believed. As in order to support the charge it must be shown, that the prosecutor parted with his property by reason of some false pretence used by the prisoner, there seems a difficulty in saying, where a person does not believe the pretence alleged, but parts with his property in order to establish a case against the defendant, that the offence is committed.

Where goods are obtained under a false representation, but that representation is in writing, and amounts to a warrant or order for the delivery of goods, within the stat. 1 Wm. 4, c. 66, s. 10, it is a forgery, and the offender must be indicted for it as such, and cannot be convicted of obtaining the goods under false pretences. Thus where, upon an indictment for obtaining goods by false pretences, it appeared that the prisoner had procured them under the following forged order :

“Mr. B.-Please to let the bearer have, for J. R., four yards of Irish linen.

J. R.” Taunton, J., directed the prisoner to be acquitted, saying that the offence was a felony, and not a misdemeanor. Evans' case, 5 C. and P. 553 (6). Sed quere as to this being a forgery. Vide post, title Forgery.

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The cases illustrating the distinction between false pretences and larceny, will be found under the latter head.

*What shall amount to a false pretence.] "The term ' false { *419] pretences,' says Mr. East (2 P. C. 828,) is of great latitude, and was used, as Ashurst, J., remarked, in Young's case (supra) to protect the weaker part of mankind, because all were not equally prudent; it seems difficult, therefore, to restrain the interpretation of it to such false pretences only, against which ordinary prudence cannot be supposed sufficient to guard. But still it may be a question, whether the statute extends to every false pretence, either absurd or irrational on the face of it, or such as the party has, at the very time, the means of detecting at hand; or whether the words, which are general, shall be considered co-extensively with the cheat actually effected by the false pretences used. These may, perhaps, be matters proper for the consideration of the jury, with the advice of the court.” In the following case, however, the judges appear to have been of opinion, that the want of common prudence and caution, on the part of the prosecutor, was an answer to the indictment. The prisoner was indicted for obtaining meat from the prosecutor, who was a butcher, under pretence that he would pay for the same on delivery, and would send the money back by the servant of the prosecutor. The jury found a verdict of guilty, and that, at the time the prisoner applied for the meat, and promised to send back the money, he did not intend to return the money,

but by that means to obtain the meat and cheat the prosecutor. On a case reserved for the opinion of the judges, they held the conviction wrong, and that it was not a pretence within the meaning of the statute. It was merely a proinise for future conduct, and common prudence and caution would have prevented any injury arising from the breach of it. Goodhall's case, Russ. and Ry. 461 (a). So where an indictment charged the prisoner with falsely pretending to the prosecutor, whose mare and gelding had strayed, that he, the prisoner, would tell him where they were, if he would give hin, a sovereign down, and that the prosecutor gave the sovereign, but the prisoner refused to tell. The judges held that the ins dictment should have stated (which was proved in evidence) that the prisoner pretended he knew where the horses were ; and that the conviction upon it was wrong. Douglas's case, 1 Moo. C. C. 464 (6).

But it is no objection that the false pretences merely relate to a future event. Thus, where the four prisoners came to the prosecutor, representing that they had betted that a person named Lewis should walk a certain distance within a certain time, and that they should probably win, and thus obtained money from the prosecutor towards the bet, it was objected that, although the representation of a thing past or present, against which caution cannot guard, may be 'within the statute (30 Geo. 3, c. 24,) yet, if it be the representation of some future travsaction, respecting which inquiries may be made, it is not an indictable oilence, but the subject only of a civil remedy; the Court of King's Bench, however, were of opinion that false pretences, referring to future transactions, were equally within the statute. Young's case, 3 T. R. 98.

Where a person, with intent to defrand, gives a check upon a *banker with whom he keeps no account, this is a false pretence ( *420 }

(a) 1 Eng C. C. 461. (6) 2 Id. 464.

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