People v. Babcock

7 Johns. 201

Opinion

Per Curiam.

Lord Kenyon said that the case of the King v. Wheatley (2 Burr. 1125.) established the true boundary between frauds that were, and those that were not indictable at common law. That case required such a fraud as would affect the public; such a decep? tion that cpmmpn prudence and care were not sufficient to guard against it, as the using of false weights and measures, or false tokens, or where there was a conspiracy to cheat. Thus, in the case of Jones, (1 Salk. 379.) who obtained money of A., pretending to have a command from B., whereas B. did not send him; but as he came tvith no false token, it was held not to be indictable. The offence was nothing more than telling a lie. So in the case of The King v. Lara, (6 Term Rep. 565.) the defendant got possession of certain lottery tickets, the property of A., pretending that he wanted to purchase thein, and he delivered to A. a fictitious order on a hanker, knowing that he had no authority to draw it, by ’ , . , , . _ . , . , means of which he got possession of the lottery tickets. On the argument in arrest of judgment, it was admitted, that as this xvas a fraud upon a private individual, the prosecutor must show that the fraud xvas effected by means of a false token, as well as a false pretence, and one of such a nature as that ordinary prudence could not guard against it. The counsel for the croxvn contended, that the false pretence xvas the alleged xvish to purchase, and the false token xvas the order. But the court said that there xvas no false token; that it xvould be ridiculous to call the check a false token, and that all depended upon the credit due to the defendant’s assertion, and the judgment xvas arrested.

In the present case xve search in vain for the false to ken. There xvas nothing beyond the defendant’s false assertion that he xvas ready to pay the judgment. There xvas not even the production of either note or money; and common prudence xvould have dictated the withholding of the receipt until the money xvas paid and the note drawn. To support this indictment xvould be to overset established principles.

The judgment must, therefore, be arrested.

Judgment arrested..