
    
      The State vs. Martin Stroll and Thomas Carr.
    
    Defendants purchased goods from the prosecutor’s clerk, and gave in payment an instrument purporting to be a five dollar bill of the Bank of Tallahassee, in Florida, the blanks of which were filled up, except those opposite the words “Cashier” and “President.” In those blanks an illegible scrawl was written, which, on careless inspection, might have been mistaken for the names of those officers. Defendants knew, before they passed the instrument, that it was worthless. Held, that they were guilty, at common law, of cheating by a false token.
    To sustain an indictment, at common law, for cheating by a false token, the instrument or device by which the cheat was effected, must be calculated to deceive the public; that is, it must be the semblance of a public, and not a private instrument; it must be such as affects, or may affect, the public.
    A false bank bill is a public token, for cheating with which an indictment will lie at common law; and it makes no difference that it purports to be the bill of a bank of another State or Territory.
    
      Before Frost, J. at Charleston, Fall Term, 1844.
    This was an indictment, at common law, for cheating by a false token.
    The report of the presiding judge is as follows:— “ The defendant, Stroll, on the night of the second of October, after nine o’clock, went to the store of D. L. Levy, and purchased from a clerk, fifteen years of age, who had been employed in the store about three months, two shirts and a scarf, for three dollars and a half. He gave in payment a five dollar bill of the Bank of Tallahassee, in Florida, which was in part filled up, but no names were signed in connection with the words, “Cashier” and “President,” printed on the bill. An illegible scrawl was prefixed to them, which, on a careless inspection of the bill, might be mistaken for the names of those officers. As Stroll was leaving the store, Levy came in, and asked the clerk what he had bought, and being shewn the bill, found it an imposition. Levy immediately followed after Stroll, who crossed the street, and joining Carr, was proceeding down Fitzsimons’s wharf, which was opposite Levy’s store. Overtaking them, Levy stopped them, and said to Stroll he had given a bad bill in payment of his purchase, and desired him to change it for a good bill. Stroll replied, that he had just come from his tavern, and had bought nothing. Levy replied, you have the goods now, and tearing off a piece of the paper of the parcel, saw that it contained the articles bought. Stroll threatened to knock him down, and giving the parcel to Carr, desired him to go aboard the brig. Levy called the guardman, who was not far off, who pursued Stroll down the wharf, and took him. Carr went off. He was much intoxicated. Stroll was carried to the guard house, and Carr was afterwards carried there also. The goods were taken from the brig, or a smack alongside, and carried to the guard house. Stroll refused to answer any questions of the Mayor. Carr, at first, said he knew nothing of the matter ; afterwards, he admitted that he had got the bill in St. Augustine, and had given it to Stroll, and was present at the house when Stroll filled it up. He also admitted that he had gone with Stroll, and waited on the opposite side of the street, when Stroll went into Levy’s, and that the shirts and scarf were purchased from Levy. The change given to Stroll, was a one dollar bill and two quarters. A dollar bill was found in Stroll’s possession, which Levy and his clerk identified by a large figure one, of a red color, on the bill. Levy and the clerk both said that bill, or one resembling it, had been taken that evening in payment of a hat. They also said, the shirts and scarf were Levy’s property, though they could not identify them by any mark. They were new. Captain Axworfhy proved that Carr had come to Charleston in his vessel as cook. Carr had possession of a Florida bill, not filled up, and without signatures, which was shewn to Capí. A. on the voyage, and he told. Carr it was worth nothing, and he had better tear it up. Capt. A. could not swear the bill produced in court was the same bill, but it had a strong resemblance to it. The bar-keeper of Prentiss’s house proved that Carr and another man, whom he could not identify, asked him for a pen and ink, and they went to the table and wrote something which he did not see. William Turner testified that he was a passenger with Carr, and had seen a Florida bill in his possession, but he did not think the bill shewn was the same. Levy said the bill could not have been imposed on any prudent person, and-that he would not have taken it.”
    The verdict was guilty.
    The defendants appealed, and now moved in arrest of judgment; and that motion failing, then for a new trial, on the grounds following, to wit.
    1. That an indictment for cheating, in a private transaction between individuals, by a token which is not calculated to affect the public, cannot be sustained at common law; nor for cheating in a public or private transaction by a privy token ; that the instrument in this case is a privy token.
    2. That no cheat could have been effected by the instrument in this case, except by absolute negligence and want of prudence in the receiver.
    Simons, for the motion,
    cited 3 Ch. Cr. L. 756, 758. The indictment here is at common law, and no person can be indicted at common law for passing a false token, where it is not of a character to affect the public ; 2 Russ. 1369, et seq. The deceit must be effected by some device which might affect the public.
    
      The instrument passsed by defendants, was a privy token ; Dud. 275. It purports to be the bill of a private corporation. A public token is the semblance of something of a public nature, as a treasury note, a weight, false scales, <&c.
    Bailey, Attorney General, contra.
   Curia, per

Richardson, J.

The finding of the jury has settled, satisfactorily, the charges set forth in the indictment. That the defendants did cheat and defraud D. L. Levy, by meáns of a false token, is verified. But this question is left open for this court to decide. Was the cheat and fraud effected by the means of a^false token, that is of itself of a public character, so as to put at hazard and peril the public interest or safety in the general trade of the State ? For such a purpose, the false token must have the ostensible appearance of a public instrument, calculated to deceive. The common illustrations of the meaning of the common law in such cases, are found in adjudged cases of cheating by means of false measures, as the bushel, gallon or yard; 2 East P. C. 820. A false seal affixed to cloth, in order to enhance the price ; Russel on C. 1369 ; Chitty C. L. 757. Cheating by false dice ; Cro. Jac. 497. Russ. 1369, is referred to the same general principle. So false certificates or vouchers by an officer; 4 East R. 191 — 2 ; or false copies or certificates of judicial records.

In a word, the cheat or fraud must be effected “by some> deceitful and illegal practise or token which affects, or' may affect, the public Russ. 1380. Under this principle, and by the lights of such adjudged cases, the court must decide the present case.. The same cheat, effected by means of the promissory note of an individual, would not be sufficient, as the court decided in the case of the State vs. D. Middleton, Dudley R. 275.

Is a Bank note to be placed on the same footing ? By no means. Bank notes are the usual representatives of gold and silver coin. Ninety-nine out of an hundred debts, are paid by the tender and acceptance of such bills. They are almost universally used as the practical measure in the purchase and sale of property, as well as in the payment of debts. Every State in the Union, perhaps, and certainly South Carolina, has made Bank Bills a good tender of payment, unless expressly objected to, and coin required in their stead.

To cheat, then, by the mere semblance of a Bank Bill, is calculated to affect, and would greatly affect, the general interest and safety of trade. More so, assuredly, than by cheating by false dice or counterfeit public seals on cloths or inspected tobacco, which would be clear cases.

If the false token in question purported to be the bill of a chartered bank of this State, I could perceive no room for two opinions. For it would then be the false token and semblance of a public an’d legalized measure of debts to the State, and to individuals.

But if the supposed bill be of another State or Territory, can that make any difference in the public character of the false token 1

Such bills are of common use in trade and payment— the interest and convenience of commerce are found in rendering all such bills a part of the common currency, and equal in the measure and for the purpose of exchanges. We have moreover made the forgery of such foreign bills punishable in common with that of our own bank bills. This enactment would seem to recognize them as of the same public measure and character ; as well as in common use in the State.

Arguing, therefore, from reasonable analogy, the conclusion of my understanding is — that the false token in question is to be placed on the footing of the like semblance of bank bills of South Carolina; and that such would affect the public interest, and constitute cheating by false tokens at common law.

This view of the case decides the strict judicial question. Much might be said upon the want of vigilance in the clerk of Mr. Levy, in accepting so imperfect a semblance of a bank bill. But when we consider how many unlearned men and women, children and servants, are in the practice of receiving bank bills at sight, upon the evidence of a figure or common pictorial device, which they have bqfore remarked upon the faces of such bills, we should be slow to say, after a jury have decided the cheat, that it required a simpleton to have accepted such a bill, in order to grant a new trial.

The motion for a new trial, therefore, as well as that in arrest of the judgment, is dismissed.

EvaNs, Wardlaw and Frost, JJ. concurred.

O’Neall, J.

dissenting, said that he did not think this indictment could be sustained at common law. It is clear that there is nothing in the facts of this case, like a false token, according to all the cases.

If there be any possibility of convicting the defendants, criminally, for the fraudulent act charged, it is under the statute of Henry 8, which makes the party obtaining money by false letters or privy tokens, criminally liable, and subjects him to corporal punishment.  