Слике страница

defraud one Edward Hammond, get into his possession from Vol. VII. Hammond, fifteen dollars of his property, by the following false Ch. 203. pretences and tokens, viz. : 1. That his naine was H. Cleuit : Art. 7. 2. That he was agent for the managers of the Maryland Grand

Con. State Lottery : 3. That the quarters of tickets which the deft. offered to Hammond, signed H. Cleutt, were genuine quarters 4 Pick. 177– of tickets, corresponding with the numbers in quarters, de 178, Commonposited in a bank in Boston. Held, the dest's. assuming a

gers. false name, and delivering spurious quarters of lottery tickets to Hammond for sale on commission, with a declaration the dest. had in a bank the genuine corresponding whole tickets, were false pretences within the said act: 2. Held, also, those facts were sufficient evidence of an intent to defraud Hammond.




§ 2. On an indictment against the deft. for-compounding a Art. 1. felony; taking the dest’s. noie for one hundred dollars, as a Con. consideration for not prosecuting the larceny. Held, this was 16 Mass. R. sufficient to constitute the compounding of a selony. The note

91-94, Con

monwealth o. was not paid, and the promissor's executor refused to pay it, Pease. hence it was objected by Pease's counsel that there was no valuable consideration for the supposed compounding of the felony, and that the facts alleged and proved did not constitute the offence anciently called theft bote. The chief justice observed Judge Blackstone said, theft bote is when the party robbed, not only knows the felon, but also takes his goods again, or other amends upon agreement not to prosecute.' The chief justice thought that the taking the note satisfied the terms other amends. For the deft. it was said the note was not, because void in law, nothing might ever be received. The court thought there was no reason for this nice construction of the words. The note, though voidable, was in fact of value to the holder, until it was avoided, that it might never be disputed. Indeed it would be hazardous ever to dispute it; for then the promisee would be released from his engagement, not to prosecute. Further the gist of the offence, is the concealment of the crime, and abstaining from prosecution, to the detriment of the public.

$ 3. The indictment charged the dests. with conspiring falsely Art. 3. to indict A B, with intent to extort money, and the jury found Con. them guilty of conspiring to indict with that intent, but not falsely. 4 Bam. & Held, that enough of the indictment was found to enable the Cres. 329. court to give judgment. The King v. Hollingsberry and others.

mon law.

[ocr errors]

Vol. VII. In many of our States, conspiracy is punished by statute
Ch, 204. lawas
Art. 3. In Rhode Island, by fine not exceeding $500, and imprison-
Con. ment not exceeding six months, common barratry, and embracing

the same.

In New Jersey. Conspiracy to indict any person, or to cause him to be indicted; fine not exceeding $500, or by law of 1824, solitary confinement, not exceeding six months, or both, &c.

however in most of the States, this offence is punished by comART. 4. Con. § 5. In Pennsylvania, a conspiracy to defraud by means of

false pretences, &c. is punishable with hard labour under the acts of April 5, 1790, and April 4, 1807. And an indictment charging a conspiracy to defraud by means of false pretences, and false, illegal, and unauthorized writing, in the form and similitude of bank notes, which were of no value, and purported

to have been promissory notes, and to have been signed, &c. 3 Serg. & R. and stating the overt act to consist in passing a note, pur220, Collins & porting to be a bank note, and to have been signed, &c. is al. o. Common. wealth.

good. It is not necessary in such case, to charge, in the indictment, the actual defrauding of any person. It is enough the act be said to have been done for the purpose of defrauding. Proof of any overt act by one in pursuance of a conspiracy by

several, is sufficient to convict all concerned. id. ART. 6.

$ 9. New York act of Nov. 5, 1816, declaring, that any Con.

person convicted of challenging another to fight a duel, &c.

shall be incapable of holding, or being elected to, any post of profit, trust, or emolument, civil or military, under the State,' is constitutional ; and a conviction and judgment of disqualification under this act, are legal and valid. Barker v. the People, 20 Johns. R. 457, affirined in the court of errors. 3 Cowen, 686-709.

$ 10. A challenge to fight in another State, delivered in South Carolina, is within the act against duelling : 2. Where the dest. had referred A to the bearer of a letter, as a person authorized to make arrangements in respect to the subject of the letter,

which contained expressions equivalent to a challenge. Held, State o. Tay lor, 1 Const. that evidence of conversations between A and the bearer of the Rep. 107. letter, was adinissible.

§ 11. The principal who sends a challenge, or fights a duel, is embraced in the act of 1812: 2. The declarations of the

second are admissible against the principal : 3. The penalty of State o. Du- the act, which prohibits the offender from holding any office of pont, 2 Mc

honor, &c. does not constitute a part of the sentence to be passed Cord, 334.


convicted. This crime, duelling, is punished in most of the States, by statute law-further, as

In Vermont, killing a person in a duel is death. Sending or

on the

accepting a challenge to fight a duel is fine not exceeding $1000 Vol. VII. nor less than $50, and perpetual exclusion from offices of honor Ch. 204. or profit in the State.

Art. 6. In Rhode Island, though death does not ensue, carried pub Con. licly in a cart to the gallows, with a rope about his neck, and setting thereon one hour, and to be imprisoned not longer than one year, or either, or both.

In New Jersey, duelling, giving or accepting a challenge, carrying or delivering such challenge, engaging in and fighting a duel, or being a second, whether the duel takes place or not, or shall be any way concerned in aiding or encouraging, fine $1000, imprisonment three months, and forever disqualified holding any office in the State.

In Maryland, killing an antagonist or wounding himn in a duel, so that he shall die thereof within a year and a day, and aiding and abetting, penitentiary, not less than five nor more than eighteen years.

ART. 11. $ 9. Éxtortion by a justice of the peace. A dest., sum- Con. moned, appeared before the justice two hours; plt. did not The People v.

Whaley, 6 appear, when the justice told the deft. he must tax the plt.

Cowen, 661with costs; deft. departed; afterwards the justice adjourned 664. the cause to another day, and gave judgment, as on the summons, for $3 or $4 costs. The deft. paid to the justice the amount of the note sued, and the justice demanded the costs, which the deft. refused to pay in full, but paid twelve and a half cents to the justice. Held, this was the extortion in the justice, for which he was indictable and punishable, criininally : 2. The motives of the justice, as whether corrupt, or whether he acted through a mistake of the law, were proper questions for the jury. Extortion, defined, not necessary to state in the indictment the justice took the money as fees, or to his own use, he took it for his judgment.

ART. 12. 1 con. The possession of my tenant at will, is not my Con. possession so as to enable me to maintain forcible entry and 3 Pick. R. 34, detainer against a stranger for expelling my tenant at will. Commonw’lth.

v. Bigelow. And where a writ of restitution has been executed and the proceedings quashed on certiorari, the supreme judicial court has power to award a writ of restitution. Not necessary in the indictment, to allege seisin in the locus in quo. Is part of the common law of Maine. Forcible entry into a dwellinghouse, is indictable at common law, though the force is alleged to be vi et armis only in the formal manner. See ch. 11, a. 9, the authorities. 1 Greenl. 22–27. 5 Pick. 2, ch. 7.

§ 3 con. Forcible entry and forcible detainer, are distinct offences. Deft. may be convicted of one and acquitted of the other, though charged in the same indictment; so is one be set out defectively, and the other correctly, on this he may

Vol. VII. be convicted : 2. There may be a forcible detainer, though Ch. 204. the entry be peaccable ; and it is sufficient if it appears on the Art. 12. indiciment, that the aggrieved party was forcibly kept out of Con. possession. On this subject the English statutes are generally

adopted in practice, or enacted in substance, in the several States. Commonwealth v. Rogers, 1 Serg. & R. 124.

s 25. Froin the evidence of forcible detainer, the jury may Burt v. State, find the deft. guilty of forcible entry. Though the entry may 2. Const. Rep. have been surreptitiously obtained, yet if continued with force,

it will be regarded as forcible. State v. Burt, id.

§ 26. Justices of the peace in South Carolina have jurisdiction, in cases of forcible entry and detainer, grounded on British statutes, expressly, made of force in that State. State v. Huntington, Const. Rep. Tr. Ed. 315 ; see statutes made in force there in 1712, ch. 196.

§ 27. An indictment lies for a forcible entry and detainer, against a third person who intrudes bimself on the land, or enters after judginent against a former intruder; and the sher

iff, who has the writ of restitution, may lawfully turn liin out 2 Bay, 355. of possession, as well as he might lave done the original in

truder, had he found him in possession of the premises.

§ 28. When a person against whom an indictment has been found for a forcible entry, traverses the force, a writ of restitution will not be granted till the question of force is tried ;

but the dest. will not, as a matter of course, be allowed a term, 2 Nott & Me as in other misdemeanors. Though these cases in Carolina Cord, 121.

were decided on British statute, there expressly adopted, yet they apply, gecerally, in the other States, because in them, generally, they bave so adopted those statutes, or in practice, or bave enacted them into American statutes, verbatim, or al

ways in substance, where not verbatim. ART. 14. § 16 con. See an important case of this kind, ch. 218, a. Con. 2, s. 26 con., of Ravara, the consul of Genoa, indicted and

punished at common law, in a federal court.


ART. 6.


These branches of the law, however necessary and valuable in themselves, have almost ceased to be put in execution, even in England, of course we find little or nothing of late years on the subject; yet one would think on reading the case of the King v. Waddington, before stated, and decided in the nineteenth century, there must every year be occasions for putting these laws in force, in both countries. A case held to



be an offence at common law, in England. In this case, Vol. VII. which occupies twentythree pages, in the first volume of East's Ch. 205. Reports, it was contended for the defi. that even before the Art. 6. 12 George 3, ch. 71, the facts charged against the deft. never Con. constituted any offence, but if they did, the offences stated in each count, and all other such ejusdem generis, were done away by that statute, which went to repeal not merely the particular acts of parliament therein enumerated, but the whole system of laws respecting forestalling, regrating, and engrossing. Also in this case near all the old statutes and decisions on these subjects were cited. The opinion of the court was given at great length, and concluded thus : “The court, having taken into consideration the nature and extent of the offence, and the time at which it was committed, when a punishment is peculiarly called for, that may operate as an example to prevent others committing the like crime, which so materially concerns all classes of men, at the same time having respect to the imprisonment the deft. has already suffered, do order and adjudge ihat he pay to the King a fine of £500, and be further imprisoned in the prison of this court for one month, and until that fine is paid.' It was also contended for the deft. that engrossing was confined to victuals, and that it had formerly been decided that hops were not victuals. The court said that decision was made when hops were considered noxious weeds.

v. Dean.

CHAPTER CCVI. GAMING, GAMING HOUSES, &c. IDLERS, &c. 6. The deft. was indicted for keeping and suffering to be Art. 2. kept in a certain yard by him actually occupied,' a ninepins Con. alley, for his proper gain, contrary to stat. 1798, ch. 20, s. 2.1 Pick. R. 387, Evidence a shed kept for playing ninepins contiguous to a pas

Commonw'lth. sage way between that shed and the dest's. store. The shed was not kept by him; he lived at some distance from it, but by one Covill, who hired it of the deft. and paid him $4 a week for the use of it, and of a room C. lived in. Many persons resorted to the shed to play for money, and paid C. for the use of the bowling alley. Held, the facts did not show an actual occupying, within the act. Deft. discharged.

§ 7. Held; that keeping a common gaming house, and for 1 Barn. & Cres. lucre and gain, unlawfully causing and procuring divers idle 272. and evil disposed persons to frequent and come to play together at a game at cards, called • Rouge et Noir,' and permitting the said idle and evil disposed persons to remain playing at the said game, for divers large and excessive sums of money, VOL. IX.


« ПретходнаНастави »