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3. Changing corn by a miller, and returning bad corn instead of it, is punishable by indictment; for being in the way of trade, it is deemed an offence against the public. (1 Sess. Ca. 217.) So also, to run a foot race fraudulently, and by a previous understanding with the seem. ing competitor to win money. (6 Mod. 42.) So also, if an indented apprentice enlists as a soldier, and receives the bounty, and is discharged on his master's demanding him, he may be indicted. See 2 Leach's Hawk. (7th edit.) 114.

4. As there are frauds which may be relieved civilly, and not punished criminally (which are properly.cognizable in courts of equity) so there are other frauds, which in a special case may not be helped, and yet shall be punished criminally. Thus, if a minor goes about the town, and pretending to be of age, defrauds many persons, by taking credit for considerable quantities of goods, and then insists on his nonage, the persons injured cannot recover the value of their goods, but they may indict and punish him for a common cheat. Barl. 100.

5. In the case of K. v. Wheatly, a distinction was taken between cheats merely of a private nature, and such as affect the public. The defendant was indicted and convicted of selling beer short of the due and just measure, to wit: sixteen gallons as and for eighteen. By the court; this is only an inconvenience and injury to a private person, arising from that private person's own negligence and carelessness in not measuring the liquor, upon receiving it, to see whether it held out the just measure or not. Offences that are indictable must be such as affect 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 usual course of his dealing; so, if there is a conspiracy to cheat: for these are deceptions that common care and prudence are not sufficient to guard against. These are much more than private injuries, they are public offences. But in the present case it is a mere private imposition or deception. No false weights or measures are used; no conspiracy; only an imposition on the person he was dealing with, in delivering him a less quantity instead of a greater; which the other carelessly accepted. It is only a non-performance of his contract, for which non-performance he may bring his action. So, the selling an unsound horse for a sound one is not indictable: the buyer should be more upon his guard. And the distinction which was laid down as proper to be attended to in all cases of this kind is this: That in such impositions or deceits, where common prudence may guard persons against their suffering from them, the offence is not indictable, but the party is left to his civil remedy for the redress of the injury that has been done to him; but where false weights and measures are used, or false tokens produced, or such methods taken to cheat and deceive, as people cannot, by any ordinary care or prudence, be guarded against, there it is an offence indictable Burr. 1125. Bl. Rep. 273.

6. Some of the above offences are punishable by fine and imprison ment, and other infamous punishment; others by fine and imprisonment only. See 2 Leach's Hawk. (7th edit.) 114.

II. BY STATUTE.

By the laws of Virginia (1 Rev. Code, p. 45) which agree substantially with the stat. 33 H. 8. c. I. it is enacted, "That, if any

person shall falsely and deceitfully obtain, or get into his or their hands or possession, any money, goods or chattels of any other person or persons, by colour and means of any false token, or counterfeit letter, made in any other man's name; every person so offending, and being thereof lawfully convicted in the court of the district in which such offence shall have been committed, shall have and suffer such correcrection and punishment, by imprisonment of his body, without bail or mainprise, for any space not exceeding one year, and setting upon the pillory, as shall be unto him limited, adjudged, or appointed by the said court."

Saving to the party injured such remedy by action, as if this act had never been made, &c.

In the construction of the stat. 33 H. 8. c. 1. above referred to, lord Coke was of opinion, that the offender could not be fined, because it is expressly declared that some corporal punishment shall be inflicted, and no other is mentioned. (See 3 Inst. 133.) But, in Terry's case (Cro. Car. 564.) the offender was sentenced to stand on the pillory, to pay a fine of five hundred pounds, and to be bound with good sureties for his good behaviour. See 2 L. Haw. (7th edit) 116. "If any person shall fraudulently obtain, or aid, or assist in obtaining, from the bank of Virginia, or any of its offices of discount and deposit, any bank or post note, or money, by means of any forged or counterfeited check or order whatsoever, knowing the same to be forged or counterfeited, then every such person, being duly convicted thereof, shall be sentenced to suffer imprisonment in the jail and penitentiary house, for a period of time not less than two, nor more than ten years. 2 Rev. Code, p. 118.

To bring an offender within the statute, there must be a false token used; and therefore, where one man went to the house of another, and pretended that such a person had sent him to receive a sum of money, and he received it, whereas such person did not send him, it was held no offence. 2 L. Haw (7th edit.) 116.

And it is not sufficient to aver in an indictment, that the offence was effected by a false token, it must shew what the false token was. 2 Stra. 1127. Rex v. Munoz.

The false token must be used; and therefore, if a person endeavour, by a counterfeit letter, to defraud another of goods, and is apprehended on suspicion of such fraud, before he has got the goods into his possession, he is not within the statute. 2 L. Haw. (7th edit.) 117.

For cheating, in gaming, see title GAMING.

For precedents, see WARRANT, COMMITMENT, RECOGNIZANCE, and CRIMINALS.

CLERGY. [BENEFIT OF]

THE privileges and disabilities of clergymen, as such, are confined within such narrow limits since the American revolution, that they do not seem to require any particular notice. The most important distinctions between that class of citizens and others are, their exclusion from a seat in the legislature, and the privy council, by the fourteenth article of the constitution of this state, their exemption from service in the militia (see 1 Rev. Code, p. 284. sect. 11. 2 Rev. Code, p. 45. sect. 14.) and their privilege from arrest, while performing religious worship. See 1 Rev. Code, p. 276. sect. 3.

But the benefit of clergy, which, during the times of papal usurpation, originated in an exemption claimed by those in holy orders, from criminal process before the secular judge, merits a considerable degree of attention; as the phrase is adopted in our laws to signify a commutation of capital punishment for burning in the hand.

The various mutations which this benefit of clergy has undergone 'from its first introduction into England may be seen in 4 Bl. Com. p. 365, 369.

At present, it is sufficient to observe, that the privilege is equally allowable to males and females; who, for the first offence, shall be discharged of the capital punishment of felonies within the benefit of clergy, on being burnt in the hand. 4 Bl. Com. 373.

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But by the penitentiary law of 1796 (1 Rev. Code, p. 357, sect. 13.) All claims to dispensation from punishment by benefit of clergy shall be and are hereby for ever abolished; and every person convicted of any felony, heretofore deemed clergyable, shall undergo an imprisonment at hard labour and solitary confinement, in the said jail and penitentiary house, for any time not less than six months, and not more than two years. By the twenty-fourth section, a person convicted of a crime not clergyable, who shall be convicted of such offence a second time, shall be imprisoned for life. And by act of 1799 (1 Rev. Code, p. 402.) it is declared, that from and after the period when the above mentioned act should go into operation (which was on the twenty-fifth of March, 1800) "If any free person shall be convicted (either as principal or accessory) of any felony or offence whatsoever, not already provided for by the said recited act, the punishment whereof by the laws in force, at and before the commencement of the said recited act, may amount to death, without benefit of clergy, every such offender, from whom the benefit of clergy would have been taken away, shall be sentenced to undergo a confinement in the jail and penitentiary house, for a period not less than one, nor more than ten years."

From the tenor of the above acts, as well as from the circumstance that the penitentiary law does not extend to slaves, it becomes necessary to ascertain what the law was, respecting the benefit of clergy, BEFORE the passing of those acts.

I. Of clergy, by the common law. II. Of clergy, by statute. III. At what time it must be demanded. IV. The effect of clergy allowed.

I. OF CLERGY, BY THE COMMON LAW.

It has already been observed, that this privilege was peculiarly claimed by the clergy, or those in holy orders; and, until it was modified by several statutes, it was almost exclusively granted to them.

But in some cases it was not allowed by the common law, even to the clergy; as, in trespass, petit larceny, and high treason. 2 Hale 326.

Yet it was allowed, by the common law, in all cases of felony, except robbery on the high way, and arson, or house-burning. 2 Hale 333.

A woman by the common law could not have the benefit of clergy, but this is now remedied by statute.

II. OF CLERGY, BY STATUTE.

By act of 1789 (1 Rev. Code, p. 45.) "The benefit of clergy shall not be allowed to principals in the first degree; 1st, in murder; (a) 2d, or in burglary; (6) 3d, or in arson at common law; (c) 4th, or for the wilful burning of any court-house, or county or public prison, or of the office of the clerk of any court within this commonwealth; (d) 5th, or for the felonious taking of any goods or chattels out of any church, chapel, or meeting-house, belonging thereto; (e) 6th, or for

(a) Murder in the first degree is still punishable with death (1 Rev. Code, p. 357. sect. 14.); but murder in the second degree, by confinement in the peni tentiary, for a period not less than five nor more than eighteen years. (1 Rev. Code, p. 356. sect. 4.) For the definition of murder in the first and second degrees, see 1 Rev. Code, p. 356. sect. 2.; and for a further definition, see 2 Rev. Code, p. 15. sect. 1.

(6) Burglary, by act of 1796 (1. Rev. Code, p. 356. sect. 5.) was punishable by confinement in the penitentiary, for a period not less than three nor more than ten years; but by act of 1803, which commenced on the first of April, 1804 (see 2 Rev. Code, p. 70. sect. 1) it is now punishable by confinement, for not less than five nor more than ten years.

(c) Arson, by act of 1796 (1 Rev. Code, p. 356. sect. 4.) was punishable by confinement, for not less than five nor more than twelve years; by act of 1803 (2 Rev. Code, p. 70. sect. 1.) for not less than ten nor more than twenty-one years; but by act of 1804 (2 Rev. Code, p. 80. sect. 8.) it is now punishable with death.

(d) The fourth class of offences is not provided for by the penitentiary law ; of course it is punishable under the act of 1799 (1 Rev. Code, p. 402 ) by confinement, for not less than one nor more than ten years.

(e) The remarks in the preceding note equally apply to this class of offences.

the robbing of any person or persons in their dwelling-houses or dwelling place, the owner or dweller in the same house or dwelling place, his wife, his children, or servants, then being within, and put in fear and dread by the same; (ƒ) 7th, or for the robbing of any person or persons, in or near about any high way; (ƒ) 8th, or for the felonious stealing of any horse, gelding, or mare; (g) 9th, or for the felonious breaking of any dwelling-house by day, and taking away of any goods or chattels, being in any dwelling-house, the owner or any person being therein and put in fear. (h)

II. The benefit of clergy shall not be allowed to principals in the second degree, in any of the cases abovementioned..

III. It shall not be allowed to accessories before the fact; 1st, in murder; 2d, or burglary; 3d, or arson at common law; 4th, or for the wilful burning of any court-house, or county or public prison, or of the office of the clerk of any court within this commonwealth; 5th, or for the robbing of any person or persons in their dwelling-houses or dwelling places, the owner or dweller in the same dwelling-house or dwelling place, his wife, his children or servants then being within, and put in fear and dread by the same; 6th, or for the robbing of any person or persons in or near about any highway. (¿)

IV. It shall be allowed to principals and accessories in all offences which would otherwise be without clergy, whether the same be newly created by any act of the General Assembly, or exist under the common law, unless it be taken away by the express words of some act of Assembly.

V. It shall not be allowed to any person more than once, except in the following case, that is to say: Whensoever any person shall have been admitted to the benefit of clergy, such admission shall not operate as a pardon or discharge for other offences of a clergyable nature, committed by him before that admission to the benefit of clergy, but he shall be again allowed the benefit of clergy for every other offence of a clergyable nature committed by him, before that admission to the benefit of clergy, and shall be burned in the hand for every such offence.

VI. But if any person, who shall have been once admitted to the benefit of clergy, shall before that admission have committed any offence, in which the benefit of clergy is not allowed by law, or shall after that admission commit any offence in which the benefit of clergy is even allowed by law, he shall suffer death, without the benefit of clergy.

(f) Robbery has undergone the same mutations as burglary, and by the same laws; see, therefore, nɔte (5)

(g) Horse stealing, by the act of 1796 (1 Rev. Code, p. 556. sect. 6) was punishable by confinement, for not less than two or more than seven years; but by act of 1803 (2 Rev. Cole, p. 70. sect. I) for not less than five nor more than

ten years.

(h) See 4 Tucker's Bl. 240; and the editor's note (9) Ibid. 243. note (11) (i) See title "PENITENTIARY," for those cases in which a specific punishnent is prescribed for accessories; where they were not deprived of the benefit of clergy, their punishment is regulated by the thirteenth section of the act of 1796 (1 Rev. Code, p. 357.) which prescribes imprisonment in the penitentiary, for not less than six months nor more than two years.

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