Opinion
(June Term, 1829.)
A fraud perpetrated upon an individual, without the use of false tokens, or any deceitful practice affecting the community at large, and without the aid of a conspiracy, but the result of a false assertion, is not indictable.
The defendant was indicted in the following form:
Attorney-General, for the State.
Gaston, for the defendant.
FROM IREDELL.
"The Jurors, etc., that Moses Justice, being an evil-disposed person, and designing fraudulently to cheat and impoverish one Anne Fox, on, etc., did become the surety of the said Anne Fox in a bond then and there executed by her for the faithful performance, etc. And the jurors, etc., that the said Moses Justice afterwards, to wit, on, etc., did write and cause to be written a certain deed of bargain and sale from her, the said Anne to him, the said Moses Justice, purporting to sell and convey a certain tract of land belonging to her, the said Anne, situate, etc., to him, the said Moses Justice, in fee simple etc., and also purporting to be in consideration of the sum of three hundred dollars, then and there well and truly paid by him, the (200) said Moses Justice, to her, the said Anne Fox. And the jurors, etc., that the said Moses Justice did then and there fraudulently, etc., pretend to said Anne that the same deed of bargain and sale was nothing but a receipt to him, acknowledging that he was the security of the said Anne, etc., by means of which false, etc., the said Moses Justice did fraudulently, etc., procure the said Anne to sign, seal and deliver the said deed of bargain and sale to him, the said Moses Justice, for the said tract of land, containing, etc., and the value, etc., and so the jurors, etc., that the said Moses Justice, her, the said Anne, of the land, etc., of the value, etc., fraudulently, etc., did cheat, deceive and defraud, to great damage, etc., and against the peace and dignity of the State."
After a verdict for the State, his Honor, Judge MANGUM, on the motion of the counsel for the defendant, arrested the judgment, and Mr. Solicitor Wilson appealed to this Court.
The defendant having become the surety of Anne Fox on a bond given for the guardianship of her son presented to her an instrument of writing to be executed by her, representing it as a mere receipt, acknowledging that defendant had become her surety. She executed it without reading, or requiring it to be read; and when executed it was an absolute deed conveying land to the defendant in fee for the consideration of three hundred dollars.
The indictment sets forth these circumstances in technical form, charging the defendant with a cheat at common law. It is not pretended that the transaction involves any fraud on the public at large, nor has it been perpetrated by the aid of any deceitful practice or false token which might affect the public at large. Had it been a direct and immediate fraud on the public it might have been indictable, although effected without the use of any false or (201) public token. But on this point it is unnecessary to express an opinion. 2 East. P. C., 821; 2 Chitty, Crim. Law, 559; 3 M. S., 11; 1 Dal., 47; 6 East. 136; 3 Chitty, 701, 704; 5 Mod., 179; 2 Camp., 269; 4 Bur., 2106; 3 Chitty, 666; 1 Leach, 208.
This fraud is flagrantly marked with moral turpitude, and an individual has been the victim of base imposition. But to the subject of criminal prosecution it should have been effected by the use of some false token or deceitful practice calculated to defraud numbers, and against which ordinary prudence could not provide. Common care, ordinary vigilance, would have prevented its commission. Indeed, it could not have been practiced without gross negligence on the part of the person injured. It does not even appear that the prosecutrix was an illiterate person, and could not read. It is an instance of mere false assertion, deceiving confiding credulity. There was not even any artful contrivance to lull suspicion and impose on prudence; no false token was used. Cheats of a private nature, effected without the use of false tokens, are indictable, when the result of conspiracy — when practiced by two or more persons who conspire to effect them. 2 Ld. Raym., 1179. No conspiracy is charged in this indictment. Rex v. Skirret, 2 East. P. C., 823, cited in behalf of the prosecution, was for conspiracy.
This is a mere civil injury, for which the suffering party has a civil remedy; and if the fraud can be proved, without the testimony of the prosecutrix, redress may be obtained. It is a foul fraud, and in civil action an honest jury will give ample damages.
Civil injuries should not be the subjects of criminal prosecutions. Good policy does not require the multiplication of public offences.
PER CURIAM. Affirmed.
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