The State v. Moses Justice.

om Iredell.

A fraud perpetrated upon an individual, without the use of false tokens, or any deceitful practice affecting’ the commun.ty at large, and without the aid of a conspiracy, but the resuit of a false assertion, is not indictable.

The Defendant was indicted in the following form :

The Jurors, &c. that Moses Justice being an evil disposed person, and designing fraudulently to cheat and inh overbli one Anne Fox, on &c. did become the security of thejsaid Anne Fox in a bond then and there executed by her for the faithful performance, &c. And the jurors, See. that the said Moses Justice, afterwards, to-wit. on &c. 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, &c. to him the said Moses Justice in fee simple, &c. and also *200purporting' to be in consideration of (he sum of three hundred dollars, then and there well and truly paid by him the said Moses Justice to her the said Jlnne i'ox. And the jurors, &c. that the said Moses Aistice dW then and there fraudulently &c. pretend to the said Jlnne, that the same deed of bargain and sale was nothing but a receipt to him, acknowledging that he was the security of the said Jlnne, &c. by means of which false &c. the said Moses Justice did fraudulently &c. procure the said Jlnne 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 &c. and of the value &c. and so the jurors, &c. that the said Moses Justice her the said Anne, of the land &c. of the value &.C. fraudulently &c. did cheat, deceive and defraud to the great damage &.c, and against the peace and dignity of the State.”

June, 1829.

After a verdict for the State, bis honor Judge Man-gum, on the motion of the Counsel for the Defendant, arrested the judgment, and Mr. Solicitor Wilson, appealed to this Court.

The Attorney-General cited the case of Rex v. Skirret et al. (2 East. P. C. 823) and said if that case did not sustain the indictment, he knew of none that would.

Gaston, for the Defendant.

Toomer, Judge.

The Defendant having become the surety of Anne Fox, on a bond given for tiie guardianship of her son, presented to her an instrument of writing to be executed by her, representing jt as a mere receipt, acknowledging that Defendant bad become her surety.— She executed it, without reading, or requiring it tobe read ; and when executed, it was an absolute deed, conveying land to the Defendant in fee for the consideration of tilree 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 *201have been indictable, although effected without the use of anv false or 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. Rep. 136—3 Chitty 701, 704—5 Mod. 179—2 Camp. 269—4 Bur. 2106—3 Chit. 666—1 Leach 208.)

This fraud is flagrantly marked with moral turpitude, and an individual has been the victim of base imposition. But to be tiie 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 practised 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, arc indictable, when the result of conspiracy — when practised by two or more persons who conspire to effect them. (2 Ld. Raym. 1179.) No conspiracy is charged in this indictment. The case referred to of Rex v. Skirrct el al. in behalf of the prosecution, is one of 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 a civil action, tut 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. — Let the judgment be arrested.