Slike strani
PDF
ePub

FRAUD AND
CHEATING.

Pretending to have official character.

Personating another.

Assuming a character or position.

and Fraud, or of Falsehood, Fraud, and Wilful Imposition.

Pretending to have an official character is criminal. Convictions have taken place for pretending to be a notary (1), a clergyman (2),-an exciseman (3),—a tax-gatherer (4), and a sheriff-officer (5). An official under suspension acts criminally if he pretend to be able to fulfil his office (6).

It is criminal to personate another for any purpose of advantage, e.g., personating another before a court of justice (7); or personating a tradesman to get goods (8); or personating the owner of goods to get delivery from the custodier (9).

It is criminal for a purpose of advantage to assume a character, though not official, or that of a known person: e.g. to pretend to be a collector for a public office or charity (10); or to be the agent, or housekeeper, or servant of a person in order to get goods (11); or a messenger sent by the owner of goods to get possession from the custodier (12); or to pretend to be a farmer in order to deceive into the belief

1 Hume i. 159 and case of Marjoribanks there.

2 Hume i. 172 and case of Craighead there.

3 Hume i. 172 and case of Reid in note 2.-Alison i. 363.

4 Will. Cruickshank, Perth, Nov. 30th 1829; Shaw 227 and Bell's Notes 17.

5 Donald MacInnes and Malcolm Macpherson, Inverness, April 25th 1836; 1 Swin. 198.

6 Rob. Millar, H.C., Mar. 15th 1843; 1 Broun 529 and Bell's Notes 65.

7 John Rae and Andrew Little, Ayr, Sept. 10th 1845; 2 Broun 476. An Act has been passed recently to make this a crime, 37 & 38 Vict. c. 36, but such an enactment was quite unnecessary for Scotland.

8 Hume i. 176 and case of Clerk there.

9 Sam. Michael, H.C., Dec. 26th 1842; 1 Broun 472 and Bell's Notes 8.--Henry Hardinge and Lucinda Edgar or Hardinge, H.C., Mar. 2d 1863; 4 Irv. 347 and 35 S. J. 303. 10 Will. Cruikshank, Nov. 30th 1829; Shaw 227 and Bell's Notes 17.

11 Hume i. 174, case of Hamilton in note 1.-Burnett 170, case of Fraser there.-Alison i. 364, 365, case of Scott there.-Geo. Walker, Jedburgh, April 1839; Bell's Notes 64.

12 Hume i. 174, case of Harvey in note 1. Alison i. 364. — Henry Hardinge and Lucinda Edgar or Hardinge, H.C., March 2nd 1863; 4 Irv. 347 and 35 S. J. 303. (Note, this was held to be relevantly charged as theft.)

that horses offered for sale are sound (1); or to pretend to be a pensioner, in order to obtain payment of a pension (2) or to get credit (3); or to pass one'sself off as a person of means and position, to get credit or advances (4)—or as a person of influence, to obtain money on pretence of getting a situation for another (5); or as a person appointed by a society as inspector of schools, to obtain board and lodging, loans, &c. (6); or as a friend of a person's relations abroad, to obtain money on the pretext of having brought presents from them, the freight of which had to be paid (7).

FRAUD AND

CHEATING.

excite compas

Fortune telling.

Telling false stories to excite compassion (8), or Falsehoods to imposing on the simple by pretending to tell fortunes, sion. or to teach how to make money or recover lost property by enchantments (9), are common modes of cheating. Cardsharping falls under this denomina-Cardsharping. tion. A case has occurred where confederates acted as if they did not know each other, and got money in a railway carriage, by one of them pretending to have lost money to the other at cards, and begging a loan to enable him to recover his losses (10). Cases have occurred of apprentices obtaining bounty when enlist- Falsehood to ing on the false statement that they were not apprentices (11), and of men labouring under disqualifying

1 Hood v. Young, H.C., June 10th 1853; 1 Irv. 236 and 25 S. J. 446.

2 Hume i. 172, case of Beaton and Macdonald in note 2.-i. 174, case of Gillies in note 1.

3 Rob. Meldrum and Catherine Reid, H.C., May 8th 1838; 2 Swin. 117 and Bell's Notes 64.

4 Hume i. 174, case of Kirby in note 1.-i. 173, case of Hall there. Alison i. 363, 364.-Thos. R. M'Gregor, and Geo. Inglis, H.C., March 16th 1846; Ark. 49.-Adolf Kronacher, H.C., June 21st 1852; 1 Irv. 62.

5 Hume i. 174, case of Douglas in note 1.-Alison i. 364.

6 Hume i. 174, case of Campbell in note 1.-Alison i. 365.

7 Hume i. 172, case of Graham there.

8 Hume i. 174, case of Rickaly in note 1.-Alison i. 365.

9 Burnett 173, case of Warren there.-Hume i. 174, case of Hutchison or Arrol in Note 1.-Alison i. 363, 364.-See also 9 George ii.

c. 5.

10 Will. Clark and others, Aberdeen, May 3rd 1859; 3 Irv. 409.

11 Hume i. 174, case of Munro & Macfarlane in note 1.-Alison i. 364.

obtain bounty.

FRAUD AND
CHEATING.

Obtaining

another's letter.

diseases swearing they were healthy in order to get bounty on enlistment (1).

Many other cases of fraud have occurred, where there was no assumption of a false character, such as a person obtaining a letter addressed to another on pretence that he would deliver it, and opening it (2); Overcharging charging more than the proper postage on letters, and appropriating the overcharge (3); and falsely accusing another to the authorities as guilty of a crime (4).

postage.

with intention

This may suffice to illustrate the cases of this class, which depend on false representations directly made. But there are others in which there is no spoken or Obtaining goods written falsehood. It is a crime to obtain goods or credit for board and lodging, with the preconceived intention not to pay for them, though no false inducement have been held out (5), and stamped obligations to pay have been granted (6). Passing off as genuine an article which is not so is also criminal; e.g.: If a

not to pay.

adulterated

article.

Supplying highly person undertake to supply an article according to sample, or an article which has been inspected, and intentionally send a totally different thing, or an adulterated mixture (7). It has been held criminal to win prizes at a cattle show, by inflating the skins

Placing false horns on cattle.

1 Hume i. 174, case of Kinnaird in note 1.-Alison i. 364.

2 Hume i. 174, case of Borland in note 1.-Alison i. 367, 368, and case of Morrison there.

3 Hume i. 174, case of M'Nab in note 1.-See also John Reeves, Glasgow, Sept. 22nd 1843; 1 Broun 612, where a post office servant altered the addresses of letters by substituting "via Falmouth" for "per Overland Mail," and appropriated the difference between the postages.

4 Elliot Millar, Jedburgh, Sept. 17th 1847; Ark. 355. This offence, as being of the nature of a personal injury, will be noticed specially afterwards.

5 Jas. Smith, Aberdeen, April 18th 1839; 2 Swin. 346 and Bell's Notes 64.-Jas. and Rob. M'Intosh, H.C., January 29th 1840; 2 Swin. 511 and Bell's Notes 65.-John Harkins or Harkisson, Glasgow, Sept. 22nd 1842; 1 Broun 420.Jas. Hall and others, H.C., July 25th 1849; J. Shaw 254.-Adolf Kronacher, H.C., June 21st 1852; 1 Irv. 62-Will. E. Bradbury, H.C., July 28th 1872; 2 Couper 311 and 45 S. J. 1.-Alison i. 362 contra.

6 William Rodger, H.C., June 8th 1868; 1 Couper 76.

7 Hume i. 173, case of Macfarlane there.-Alex. Bannatyne, Glasgow, Sept. 29th 1847; Ark. 361.

CHEATING.

of cattle, and affixing false horns to them (1). And FRAUD AND where a person tried to prevent the enforcement of a Raising fictitious judicial decree for payment, by raising a summons in summons. a fictitious name, and on a false narrative, against the person holding the decree, and procuring the arrestment of the sum due under the decree in his own hands, he was held properly charged with falsehood and fraud (2).

Any vitiation of an existing and genuine deed in Vitiation of deed. any essential part, to the prejudice of the interests of others, is a highly criminal offence (3). If an obligation by John Brown for £20 is changed into one for £200 by the addition of an 0, or the date 1850 altered to 1859 by adding a stroke, that which was really signed by John Brown becomes a document setting forth a falsehood (4). It is a crime to fill Filling in testing in a testing clause with a false date (5). And the date. same holds of erasing a material portion of a deed, Erasing. e.g., scratching out a figure so as to make 200 20. It is also a crime if the writer of a deed secretly

1 Jas. Paton, Ayr, Sept. 22nd 1858; 3 Irv. 208.

2 Geo. Kippen, H.C., Nov. 6th 1849; J. Shaw 276.

3 Hume i. 160, 161, and cases of Aitken and Dunbar and Leatch there.-i. 160, case of Lindsay and others in note 2.-i. 161, case of Falconer in note 1.-Simon Fraser, H.C., Nov. 21st and Dec. 5th 1857; 3 Irv. 467 and 32 S. J. 148, (Lord Justice General M'Neil's and Lord Neaves' opinions). Sir Archibald Alison (i. 384,) incorrectly states this as falling properly under the denomination of forgery. It would appear that such offences have been prosecuted as forgery. (See Simon Fraser, supra, Lord Deas' opinion). But it is important to keep in view the true distinction which exists between such cases and the forgery or fabrication of false writs. Where a person commits

clause with false

Inserting unau

into thorised provi

fabrication or forgery, that is per se
no offence. It is wholly his own
and within his own power, and it is
only when he utters it that he is
guilty of an indictable crime. But
in most cases of vitiation of an exist-
ing document, no uttering is neces-
sary. The wilful vitiation is of
itself an overt act of fraud. The
operation is performed upon a thing
already practically existing, and for
a fraudulent purpose. There is no
locus pœnitentiæ as in the case of a
fabrication or a forgery, where
practically as regards all other per-
sons, the fabrication or forgery has
no existence till it is uttered.

4 John Hutchison, H.C., Oct.
28th 1872; 2 Couper 351 and 45 S.
J. 40 and 10 S. L. R. 25.

5 Duncan Stalker and Thos. W. Cuthbert, H.C., Jan. 22d 1844; 2 Broun 70.

sions.

FRAUD AND
CHEATING.

False entries in
books.

Destruction or

mutilation of documents.

False weights and measures.

insert unauthorised provisions with a fraudulent intention (1). And of a similar nature is the offence of making false entries in an employer's books to conceal defalcations, although this is generally considered to fall under another head,* the appropriation of the money being the principal offence, and the false entries only treated as a mode of concealment (2). Wilful destruction of documents, whether valuable in themselves or as evidence, (3), and mutilation of business books (4), if done to suppress evidence, or for any other fraudulent purpose, are crimes. Of course if the documents are the property of the accused, the destruction or mutilation will not be criminal, except it form part of some otherwise criminally fraudulent scheme or proceeding; but where some one else has a right or substantial interest in the documents, or where they form part of a legal process or the like, the mere act of destruction or mutilation is criminal, if there be the necessary intent to defeat other interests, whether those of an individual or of public justice (5).

The use of false weights and measures is criminal. Three things are requisite to the charge. First, there must be a substantial difference between the weight or

[blocks in formation]

are many provisions in the Bank and Excise and other Statutes in reference to offences by vitiation or mutilation or transposing of stamps or the like with fraudulent intent. But prosecutions under them are quite unknown, as the common law of Scotland reaches all such cases without its being necessary to refer to statutory enactment, the strict terms of which only lead to miscarriages in prosecutions, where a conviction at common law would be certain.-See Hume i. 169, and case of Brown and M'Nab there, and cases of Ferguson: and Hughan in note 2.

* Vide 67.

« PrejšnjaNaprej »