6 Mass. 72

November, 1809

Where one by lying only, without using any false weights, measures, or tokens, defrauds another of his property, the injury is a civil one, and an indictment cannot be supported as for a public offence.

AN indictment found by the grand jury, at the last April term at Ipswich, against the defendant, states, that he, being an evil-disposed person, and contriving and intending one Benjamin Adams to deceive, cheat, and defraud, falsely pretended and affirmed to the said Adams, that his, the defendant's, name was William Waterman; that he lived in Salem, and there kept a grocery store; that he wished to purchase, on credit of Adams, fifty pair of shoes, giving his own note as security therefor; that Adams, giving credit to his false pretences and affirmations, sold him the shoes, and took, as security, the note of the defendant, subscribed by him with the name of William Waterman.

Upon conviction, the defendant moved in arrest of judgment, on the ground that the facts charged in the indictment, and of which he had been found guilty, are a private injury only, and do not amount to a public offence.

Story, in support of the motion, cited 2 East's P. C. 819.

PARSONS, C.J. At common law it is an indictable offence to cheat any man of his money, goods, or chattels, by using false weights or false measures; and by the English statute of 33 H. 8, c. 1, passed before the settlement of this country, and considered here as a part of our common law, cheating by false tokens is made an indictable offence. The object of the law is, to protect persons

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who in their dealings use due diligence and precaution, and not persons who suffer through their own credulity, carelessness, or negligence. But as prudent persons may be overreached by means of false weights, measures, or tokens, or by a conspiracy, where two or more persons confederate to cheat, frauds effected in either of these ways are punishable by indictment. And by an English statute of 30 G. 2, c. 24, which is not in force in this state, the same prosecution has been extended to cheating by false pretences.

But if a man will give credit to the false affirmation of another, and thereby suffer himself to be cheated, he may pursue a civil remedy for the injury, but he cannot prosecute by indictment. [Note 1]

If, therefore, Adams was cheated out of his shoes by the defendant, without using false weights, measures, or tokens, and by no conspiracy, but only by his credulity in believing the lies of the defendant, although he may have an action against the defendant to recover his damages, yet this indictment cannot be maintained, whatever false pretences the defendant may have wickedly used.

And it appears that Adams was imposed on by the gross lies of the defendant. He pretended and affirmed that his name was William Waterman, and that he was a grocer in good credit in Salem. Adams, unfortunately believing him, sold and delivered him the shoes on credit; and when the defendant gave his note as security, he used his false name.

We see here no conspiracy, for the defendant was alone in the fraud; and no false tokens to induce a credit; and as for false weights or measures, there is no pretence. We cannot therefore consider the facts stated in the indictment (however injurious they were to Adams) as constituting a public indictable offence. [Note 2]

Judgment arrested.

Bidwell, attorney-general, for the commonwealth.


[Note 1] Vide Hawk. P. C. b. 1, c. 71, ยง 2.-- Rex vs. Wheatly, 2 Burr. 1125.

[Note 2] Rex vs. Lara, 6 D. & E. 565