
    Dalilah Middleton ads. The State.
    Selling a promissory note, which the party selling knew had been paid, but represented to the purchaser that it was still due according to its face, is not an indictable offence, but a mere civil injury to be redressed by action.
    BEFORE RICHARDSON, J., AT MARION, FALL TERM, 1837.
    This was an indictment for swindling, of which the defendant was convicted. The report of the presiding Judge having been lost, the- following statement was submitted by agreement.
    The indictment contained three counts, the first of which was in these words: — “ That Dalilah Middleton, late of Marion, in the district and State aforesaid, on the first day of November, in the year of our Lord one thousand eight hundred and thirty-six, at Marion, in the district and State aforesaid, unlawfully, knowingly, and designedly, did overreach one Alexander L. Gregg, by receiving from the said Alexander L. Gregg sundry articles of great value, to wit, one piece of calico of the value of five dollars, one pair of shoes of the value of two dollars, and various other articles of the value of five dollars, in exchange for a certain written paper, commonly called a promissory note, in which said promissory note one L. G. Smith, and one Job Eoxworth promised to pay to certain persons therein mentioned, a certain sum of money, to wit, in these words: “ $10.00. By the first day of June next, we, or either of us, promise to pay Wm. EL Grice and John D. Jones, administrators of Thomas Avant, deceased, the sum of ten dollars, value received. L. G. Smith, Job Eoxworththe said Dalilah Middleton then and there falsely pretending, that the said written paper was of great value, to wit, of the value of ten dollars, and that the said L. G. Smith and Job Eoxworth, mentioned in the said written paper, were indebted to her in the said sum of ten dollars, and would be bound in law to pay, and would pay, the said sum of ten dollars, to any person to whom she should deliver the said written paper; with intent to overreach him, the said Alexander L. Gregg, of the articles aforesaid; whereas, she, the said Dalilah Middleton, well knew, that, in truth and in fact, the said written paper was of no value, and that neither the said L. G. Smith, nor the said Job Eoxworth, would be bound in law to pay, nor would pay, the said sum of money, or any portion of it, to any person to whom she might deliver it — to the great damage and deception of the said Alexander L. Gregg, to the evil example of all others in like cases offending, contrary to the form of the Act of Assembly of the State aforesaid, in such case made and provided, and against the peace and dignity of the same State aforesaid.”
    The second count charged, “ That Dalilah Middleton, late of Marion, in the district aforesaid, on the first day of November, and year last aforesaid, at Marion, in the district and State aforesaid, unlawfully, cunningly, and designedly, did cheat one Alexander L. Gregg, who unwarily gave certain articles, to wit, dry goods of great value, to wit, of the value of ten dollars, in exchange for a certain written paper, by which paper the said Dalilah Middleton falsely pretended that certain persons therein named, to wit, L. G. Smith and Job Eoxworth, were bound to pay her a certain sum of money, to wit, the sum of ten dollars, and which said sum of money the said Dalilah Middleton falsely pretended that the said L. G. Smith and'Job Eoxworth, or one of them, would pay to the said Alexander L. Gregg, after he had received the same; whereas, in truth and in fact, the said Dalilah Middleton well knew, that neither the said L. G. Smith, nor Job Eoxworth, was indebted to the said Dalilah Middleton, by reason of the said paper, and that neither the said L. G. Smith, nor Job Foxworth, wonld pay the said sum of money, or any part of it — to the great damage and deception of the said Alexander L. Gregg, the evil example of all others in like case offending, contrary to the form of the Act of Assembly of the State aforesaid, in such case made and provided, and against the peace and dignity of the same State aforesaid.”
    The third count was as follows : “ That Dalilah Middleton, on the day and year last aforesaid, unlawfully, cunningly, and designedly, did defraud one Alexander L. Gregg, who, ignorantly, gave the said Dalilah Middleton certain articles of great value, to the said jurors unknown, in exchange for a certain written paper, commonly called a promissory note, which the said Dalilah Middleton falsely pretended constituted her evidence of a debt due to her by L. G. Smith, which debt she had a right to assign and transfer to any person to whom she should deliver the said paper: whereas, in truth and in fact the said Dalilah Middleton well knew, that the said L. G. Smith was. not indebted to her by reason of the said paper, and that she could not transfer any debt or claim to any person whatsoever, by delivering the said written paper to such person — to the great damage and deception of the said Alexander L. Gregg, the evil example of all others in like case offending, contrary to the form of the Act of Assembly of the State aforesaid, in such case made and provided, and against the peace and dignity of the same State aoresaid.”
    R. Barnwell Smith, Attorney-general.
    
    The indictment was found by the grand jury at Fall Term, 1836, and there was no evidence that the prosecution had been instituted earlier than the first of November of that year.
    The prosecutor, A. L. Gregg, having first executed a release of all interest, was sworn and examined. He produced the promissory note described in the indictment; and testified that he had received it from the defendant, Mrs. Middleton, who represented it as her own property, and obtained goods from his store in payment of it. Did not recollect the time precisely. It was some time in 1836, but he was unable to' say at what time. Witness, from some circumstances, was induced to think it must have been m the spring or summer. There was a calculation of interest on the back of the note, in the writing of witness, and if that calculation were correct, the transaction must have occurred in 1835; but in taking a note in this way, witness would not bring down the calculation of interest to the exact time.
    L. G-. Smith, one of the makers of the note, was sworn, and testified, that he had paid the note to John D. Jones, one of the payees. Witness deposited it in a desk, which was subsequently broken open, and this note, with other papers was taken out by some person to him unknown. At the time, his suspicions had fallen on a young man, who had lived with him. Some time afterwards the defendant, Mrs. Middleton, offered the note to witness in payment of a debt she owed him; on which occasion he informed her that be had paid it to John D. Jones, and referred her to Jones for the proof.
    Mary Coleman, a daughter of defendant, swore that her mother received the note as a present from one Davis, a young man, who had removed from the country. She knew of the note having been passed to Gregg for goods; and this was a month, or two months, before the 4th of July, 1836.
    His Honor charged the jury, that unless they were satisfied that the offence had been committed within six months previous to the commencement of the prosecution, they ought to acquit the defendant. The evidence might, perhaps, have sustained a prosecution under the old English statute, 33 Hen. 8; but the indictment in this case was under the Act of Assembly of 1791, which prescribed a pecuniary penalty only; and in all such cases the law was settled, that the prosecution was barred, unless commenced within six months from the time when the offence was committed. On this point his Honor stated that the evidence was uncertain. If the calculation of interest were correct, the prosecution was too late; but that might be erroneous, and it was for the jury to determine the question, after duly weighing all the evidence.
    The jury rendered a verdict of guilty; from which the defendant appealed and moved to arrest the judgment, on the following grounds:
    1. That the acts charged in the indictment no not constitute an indictable offence.
    
      2. That .the indictment does not set. forth any offence within the meaning of the statute, 33 Hen. 8.
    3. That it does not charge the act of swindling to have been committed by means of a false token, &c.
    4. That the indictment is, in other respects, informal and insufficient.
    And should that motion fail, the defendant further moved for a new trial, on the following grounds:
    1. That the évidence was not sufficient to prove the offence charged.
    2. That the offence was not proved to have been committed within six months previous to the prosecution.
    3. That it was, in fact, proved to have.been committed more than six months previous to the commencement of the prosecution.
    Dargan, for the defendant,
    Argued that, at common law no mere fraud, not amounting to felony, is an indictable offence, unless it affect the public. 1 Hawk, P. C. c. 71. Bac. Abr. Fraud. E. In King ■vs.Wheatley. 2 Burr. 1125, Lord Mansfield said, “ an offence, to be indictable, must be such a one as affects the public as in the case of false weights and measures, in the general course of dealing, &c. See 1 Salk. 379. 1 East. Rep. 185. 2 Stra. 866. ■
    It was held, that, at common law, -no indictment will lie for giving a check in payment on a banker with whom the party has no funds. 2 Leach, 647. “The cases in which fraud is indictable at common law, seem to be confined to the use of false weights and measures- — the selling of goods with counterfeit marks — playing with false dice — and frauds affecting the course of justice, and immediately injurious to the interests of the public.” 3 .Chitty-s C.rim. Law, 995. “The first three of the above classes, seem to come under the denomination of false tokens, often used in the old authorities. They seem to depend on the principle, that they betoken a general intent to defraud; and support the rule laid down, that tbe injury must be to tbe public.” 3 Cbit. Crim. 995.
    The indictment in this case was under “ the Act of Assembly.” Can the indictment, by the words, “Act of Assembly,” embrace a case coming under the British statute of 33 Hen. 8, made of force in this State? .The words import, that the defendant was indicted under our own Act of Assembly.
    Again, is the offence charged in this indictment, indictable under the statute 33 Hen. 8 ? The preamble of that statute recites, as the mischief to be remedied, the frauds committed through the instrumentality of “ privy tokens, and counterfeit letters in other men’s names.” The enacting clause directs the penalty against the getting possession of money, &c., “by any.such false token, (i. e. privy token, see preamble,) or counterfeit letter.” The words, “any such,” make the offence created, the use of privy false tokens in other men’s names. P. L. 56.
    The offence here charged is not a “ counterfeit letter,” nor is it a “privy token,” that is false. Nor is it a false token, such as that word imports'at common law. For the false tokens that were indictable at common law, were confined to the classes above enumerated, and depended upon their betokening a general intent to defraud. 3 Ghitty Grim. Law, 995. The act here charged is a single act, and was not accomplished by any means which show a general system of fraud. See Gowp. 324.
    Chitty, in reference to this statute, remarks, that the effect of it was “ to make a fraud on an individual by means of privy tokens, a misdemeanor; whereas, at common law, the deceit must affect the public interests.” 3 Obit. Gr. Law, 997.
    So letters declaring a falsehood, with intent to defraud, are not privy tokens within the meaning of tge statute. See the case of the King'ys. Wilders, cited 2 Burr. 1128.
    It seems very clear, that the act charged is not an offence under the statute 33 Henry, 8.
    Is the act charged in the indictment an offence created by Act of Assembly, 1791 ? If it is embraced in this Act, it must be under the general clause, which reads as follows: “ Or overreach, cheat, or defraud, by any other cunning, swindling arts and devices, so that the ignorant and unwary, who are deluded thereby, lose their money, or other property.” 1 Faust, 79. The language of this clause is so general, that it embraces every act of fraud or dishonesty. If the offence charged be an indictable offence under this Act, then every other imaginable case of fraud would be an indictable offence.
    It has been held in this State, that a selling a blind horse, as a sound horse, is not an indictable offence under this Act. 1 Bay, 588.
    The Stat. 14 Geo. 3, c. 6, which made it felony to “ steal sheep or other cattle,” was, in its construction, confined to stealing sheep only; and parliament the next year passed another statute, extending the penalty to all other species of cattle by name. 15 Geo. 2, c. 34.
    He did not mean to say, that penal provisions may not be expressed in general terms. The true principle on this subject is the rule laid down in the United States vs. Fisher, 2 Oranch, 335, and referred to by our own Court in the State vs. Holman, 3 M’Cord, 306, as superseding all other rules upon this subject. Where a law is plain and unambiguous, whether it be expressed in general, or limited terms, the legislature should be intended to mean what they have plainly expressed, and subsequently have left no room for construction.
    Does this clause of'the Act of 1791, come under this rule, or within this principle ? Is the law plain and unambiguous in its import ? It will not be denied but that the language of the clause is comprehensive enough to embrace every imaginable case of fraud; and on the other hand it will not be .contended that the legislature intended to make every such case an indictable offence. Of the innumerable species of frauds, which did the legislature intend to make misdemeanors ? This clause does not make the necessary specifications, and consequently, as creating a new office, it is void. If the clause be considered as fixing the penalties of this Act to those frauds that were indictable at common law, then the answer is, that the offence charged does not come under either of the classes of frauds that are indictable at common law, as we have already seen.
    But suppose the transaction proved on the trial, to have been an indictable offence, the defendant objects that she cannot be convicted under this bill of indictment. In order to make the offence .of the defendant complete, it was necessary to prove, and it was proved, that the note which was given in payment of the goods, bad been previously paid to the payees of the note. This note was a genuine paper; it was not stated in the bill, that it became worthless by such previous payment, yet this was proved. It was not stated that the defendant bad acquired the possession of it in a surreptitious manner; yet circumstances were admitted in evidence, leading to such conclusion. The indictment should have stated this note bad become worthless by being paid, that the defendant bad no right to it, and bad passed it off, &c.
    The cheat depended entirely upon these two facts; therefore it was necessary to state them. The indictment merely states that the note was of no value, but not the reasons of its being of no value, It may have been of no value from a want, or a failure, of consideration, illegality of consideration, infancy, Statute of Limitations, &c. It was necessary to state why it was of no value.
    It has been frequently decided, that in all indictments under tbe 30 Geo. 2, it is necessary to set forth the false pre-tences employed by tbe defendant, precisely as they will appear at tbe trial. 2 T. E. 581; 1 Campb. 495; 3 Ohitty’s Crim. Law, 999.
    Chitty, 3 vol. 999, says, on general principles, it seems necessary, not only to set forth tbe circumstances, so as to show on the record that tbe offence is such a one as the Legislature intended to punish; but also to describe it in. the technical words used in tbe provision. Now, in tbis case, tbe offence is not charged in the words of the Act. The same author proceeds to observe, “ that it has been holden in an act of indictment, under 33 Hen. 8, that it is not necessary to allege that the fraud was effected by means of a privy token, if that be a necessary inference from the facts stated; but at tbe present day this seems doubtful.” It does not appear that any necessary inference arises from the facts stated, that tbis fraud was effected by means of a privy token.
    There were strong reasons for believing that the prosecution was barred by tbe Statute of Limitations. If tbe prosecutor was correct in bis recollections in regard to tbe quantity of interest then due upon the note, it was unquestionably barred. And his was tbe only evidence that was material as o tbe date of tbe transaction. Tbe prosecutor was bound to sbow clearly that the prosecution was commenced within the time. So far from this, however, he showed that it was the reverse.
    Bailey, Attorney-general, contra.
   O’Neall, J.,

delivered the opinion of the Court.

The indictment charges the defendant in three counts, as follows; to wit: 1st. That she did overreach. 2d. That she did cheat. 3d. That she did defraud one Alexander L. Gregg of sundry articles of property, by passing to him a promissory note on one L. G. Smith and John Foxworth for ten dollars, pretending that it was of that value, and that the makers were in law liable to pay, and would pay the same, when she in fact knew that they were not liable to pay, and would not pay the same. This is the substance of the charges.,

The first inquiry arises, is any offence at common law charged ? I think it is very clear there is not. It is a mere civil injury, for which the party injured might have his remedy by action of deceit. It is a mere false representation of a thing to be of value, which the defendant knew to be valueless. There is in this no offence against the public. It is in its consequences and effects confined to the parties to the transaction, and thus at once shows that no prosecution at common law can be sustained. The definition of a cheat at common law, given by Russell, in his 2d vol. 139 — the fraudulent obtaining of property of another, by any deceitful and illegal practice or token (short of felony) which affects or may affect the public, seems to give, in general terms, the most proper notion of the offence, which I have been able to meet with. It has the support of the case of the King vs. Wheatly, 2 Burr. 1125, in which the defendant was indicted for selling sixteen gallons of amber, when it had been represented by him at eighteen gallons, and sold accordingly, the defendant well knowing that the true quantity was sixteen gallons; it was held, that this was no offence, and that the judgment must be arrested. In that case, Lord Mansfield stated the rule to be, that “ The offence that is indictable must be such an one as affects the public — as if a man uses false weights and measures, and sells by them to all or many of his customers, or uses them in the general course of his dealings; so if a man defrauds another, under false tokens. Eor these are deceptions that common care and prudence cannot guard against.

Speaking of the case then before the Court, and applying to it the test of the rules which he had stated, he said, “ it is a mere private deception.” The definition given in Russell, and 'the case of King vs. Wheatly, sustain fully the remarks which I made in the outset of my opinion, and show that the indictment cannot be sustained at common law. The statute 33 Henry 8, c. 1, P. L. 55, it has been supposed in the argument, may sustain the conviction; it is, therefore, now necessary to look to it. The preamble to the statute states the mischief to be, that many light and evil-disposed persons, “ had falsely and deceitfully contrived, devised and imagined privy tokens and counterfeit letters in other men’s names, unto divers persons, their special friends and acquaintances, for the obtaining of money, goods, &c.,” it is therefore enacted, that, “ if any person or persons, falsely and deceitfully, obtain or get into his or their hands or possession, any money, goods, chattels, jewels or other things, of any other person or persons, by color and means of any such false token or counterfeit letter, &c,” he should on conviction be punished by imprisonment, pillory, or other corporal pain (except pains of death) at the discretion of the Court.

Under this statute, as well as at common law, the obtaining money or goods by a false token is punished.

It is, therefore, now necessary, in this connection, to inquire what is a false token. It is somewhat difficult to define with precision, or rather to describe, a false token in all cases. Taking the preamble of the statute as our guide, we would say it must be something false and purporting to come from one not the bearer, and having in itself some private mark or sign, calculated to induce the belief that it is real, and thus to cause the person to whom it is delivered to part with his money or goods to the bearer or person delivering it. On looking into 2 Russell, 1384, I find the definition, which I have given, is substantially that which he approves. This would be enough for this part of the' case, for it is manifest that the note set out in the indictment could not be a privy false token, according to the definition or description which mas been given. But it may be well here to notice what is meant by a false token at common law; for it will, perhaps, aid us in the view which we may have to take of this case under the Act of ’91. It seems to me that it is any thing which has the semblance of public authority, as false weights, measures, seals and marks of produce and manufactures, false dice, marked cards, and things of a similar kind, false and deceptive, used in unlawful games; 2 Russ. on Crimes, 1368. It is true, in looking into the books, we find, many eases of indictment, in which fraud is an essential requisite, as in cases of common cheat, forgery, and conspiracy; and some confusion has arisen from such cases being often spoken of under the general head of cheats at common law, and, therefore, mingled with the offence of cheating or swindling by false tokens. But each of them constitutes an independent and distinct offence.

It remains to consider the case under the Act of 1791, 1 Faust, 79, which provides, “if any person or persons shall inveigle or entice, by any arts or devices, any other person or persons, to play at cards or dice, or any other game, or bear a share or part in the stakes, wagers or adventures, or bet on the sides or hands of such as do or shall play as aforesaid, or shall sell, barter or expose to sale any kind of property which has been before sold, bartered or exchanged by the person so selling, bartering or exchanging, or by any person or persons to his or their benefit or advantage, in any house or other place within the State, or be a party thereto, or overreach, cheat or defraud, by any other cunning swindling act and devices, that so the ignorant and unwary, who are deluded thereby, lose their money or other property, every such person exercising such infamous practices, shall, on conviction thereof in any Court in this State, exercising criminal jurisdiction by trial by jury, be deemed guilty of enticing, inveigling, defrauding and swindling, and shall forfeit a -sum at the discretion of the Court and jury, besides refunding to the party aggrieved double the sum he was so defrauded of; and if the same be not immediately paid with costs, every such person shall be committed to the common jail, or house of correction of the district or county where such person or persons shall be convicted, there to continue for any time not exceeding six months, unless such fine or fines, with costs, be sooner paid.” What is meant in the definition of the offence of swindling in this Act, by the words, “other cunning swindling arts and devices?” The Act prohibits the inveigling or enticing of a person. 1st. To play at cards or dice, or any other game. 2d. To bear a share or part in the stakes, wagers or adventures. 3d. To bet on sides or hands of such as do or shall play at cards or dice, or other games. It next prohibits the second sale, barter or exchange of the same property by the same person, and then by a sweeping clause it prohibits the overreaching, cheating or defrauding of a person by any other “ cunning, swindling arts and devices.” After this analysis of the Act, it would be plain that any cunning, swindling arts and devices in games of cards and dice, or any other unlawful game, would be within the prohibition; and this construction would be much strengthened by the preamble, which points out the mischief to be that “ a number of idle persons of ill-fame, who have no visible means of obtaining an honest and reputable livelihood, have of late infested this State, and have been too successful in carrying into effect their deceitful gambling and swindling practices, drawing into their wily snares many ignorant and unwary persons, to their prejudice.” If the question, as to the meaning of the terms alluded to, were entirely res integra, I should be inclined to think their meaning ought to be confined to cunning swindling arts and devices, in games of cards, dice or other unlawful games. But the statute has in some degree been heretofore construed. The State vs. Vaughn & Holcombe, 1 Bay, 282, would favor the idea that any mere cheat was embodied in the words of the Act; for there the obtaining horses from an ignorant countryman by threats of a criminal prosecution for horse stealing, and also by threats of his life, was held to be within the Act. But it is to be remarked that that was a mere nisi prius decision, which has never been followed. The offence certainly was mistaken. It was a clear case of conspiracy and not of swindling. In a subsequent case, The State vs. Delyon, 1 Bay, 353, it was held that the sale of a blind horse as a sound one, when the defendant knew of the defect, was not within the Act, on the ground that it was a mere civil injury. To this case all subsequent ones have yielded. In The State vs. Strange & Wilson, 2 Con. Rep. (by Mills) 138, it was held, that to overreach, cheat or defraud, by any other cunning, swindling arts and devices, was the offence of cheating or swindling at common law, which were, 1st. Frauds in matters of public concern, or, 2d. Frauds in private concerns, as conspiracy, forgery or false tokens, calculated to deceive the public. It is to be noticed here that conspiracy and forgery, although frauds at common law, constitute distinct offences from that which we are considering. The offence under which this indictment endeavors to bring the defendant, is that 'of a private fraud by false tokens, calculated to deceive the public. We have already seen that the offence at common law is not charged. The Act of 1791, if extended beyond cunning, swindling arts and devices, in games of cards, dice, or other unlawful games, has been very plainly confined to private frauds, effected by false tokens. From these views, the offence charged in the indictment, is not criminal — it is a case not to be redressed by punishment, but by damages to the party injured, in the action.

The motion in arrest of judgment is granted.  