it is necessary in any jurisdiction to go to the statute in order to find just what acts are indictable thereunder. The earliest English statutes related to the sending of anonymous letters demanding money or property, and threatening injury for noncompliance.2

§ 486. What kind of threats are indictable.-Generally speaking, threats to accuse one of crimes or of committing gross misconduct not criminal, to set fire to property, to do personal violence, to injure one's business, to begin a criminal prosecution, to accuse one of something which would bring him disgrace or contempt are indictable.

6

8

§ 487. Purpose of threats.-In order to convict under almost any blackmail statute, it is necessary to show that the threats were made for the purpose of obtaining money or something of value, or the inducing of another to do something against his will, 10 that they were communicated to and intended to be communicated to, the person against whom they were directed,11 and that the threats were of a

24 Bl. Comm. 144; Robinson's Case, 2 East. P. C. 1110. See also note to 116 Am. St. 457, 475; Commonwealth v. Swartz, 65 Pa. Sup. Ct. 159.

3 Rex v. Pickford, 4 Car. & P. 227; Reg. v. Chalmers, 16 L. T. 363; State v. Louanis, 79 Vt. 463, 65 Atl. 532, 9 Ann. Cas. 194n.

4 Reg. v. Tomlinson, L. R. (1895) 1 Q. B. Div. 706; Reg. v. Redman, L. R. 1 C. C. 12; Reg. v. Miard, 1 Cox Cr. C. 22.

5 Reg. v. Taylor, 1 Fost. & F. 511. 6 State v. Hollyway, 41 Iowa 200, 20 Am. Rep. 586; Reg. v. Murphy, 6 Cox Cr. C. 340.

7 People v. Hughes, 137 N. Y. 29, 32 N. E. 1105.

8 People V. Whittemore, 102 Mich. 519, 61 N. W. 13; Commonwealth v. Buckley, 148 Mass. 27, 18 N. E. 577, 1 L. R. A. 624; Elliott v. State, 36 Ohio St. 318.

9 Motsinger v. State, 123 Ind. 498, 24 N. E. 342, 8 Am. Cr. R. 110n; People v. Tonielli, 81 Cal. 275, 22 Pac. 678. See also State v. Coleman, 99 Minn. 487, 110 N. W. 5, 116 Am. St. 441, and note where subject of blackmail is fully discussed.

318.

10 Elliott v. State, 36 Ohio St. See also cases cited in preceding note.

11 State v. Brownlee, 84 Iowa 473, 51 N. W. 25; Castle v. State, 23 Tex. Cr. 286, 4 S. W. 892.

character such as to produce in a reasonable mind alarm or bodily fear, and of a nature to take away the voluntary action which constitutes consent.12 It is immaterial whether any advantage be actually gained by the threats. 13 Under most statutes conviction may be had for oral threats as well as written. Threats by gestures are insufficient.14

It is immaterial whether the thing threatened was to be done by the accused or another.15 The venue of the prosecution, where the threats were made by a mailed letter, may be laid where the letter was received.10

12 Reg. v. Walton, Leigh. & C. 288; Reg. v. Smith, 1 Den. Cr. C. 510.

13 State v. Bruce, 24 Maine 71; People v. Tonielli, 81 Cal. 275, 22 Pac. 678; State v. Young, 26 Iowa 122.

14 Robinson V. 101 Mass. 27.

Commonwealth,

15 State v. Brownlee, 84 Iowa 473, 51 N. W. 25.

16 Rex v. Esser, 2 East. P. C. 1125.

§ 490. Cheating at common law.-The common-law crime of cheat consists in fraudulently obtaining a pecuniary interest in another's property by means of some false symbol or token of such a nature that common prudence can not guard against it. It is essential that the means of perpetrating the fraud be a false symbol or token, such as a false measure, a false weight, a false stamp, etc., or a conspiracy to cheat. A false statement is not sufficient. Where the defendant delivered sixteen gallons of beer to the prosecutor, falsely representing the quantity to be eighteen gallons, and for which he received pay, the conviction was quashed because the fraud was not perpetrated by means of a false measure. In the case cited Lord Mansfield observed: "The of

1 Rex v. Wheatley, 2 Burr. 1125, 1 Wm. Bl. 273. See also, Com

monwealth v. Warren, 6 Mass. 72; People v. Babcock, 7 Johns. (N.

fense that is indictable must be such a one as affects the public. As if a man uses false weights and measures, and sells by them to all or to many of his customers, or uses them in the general course of his dealing; so, if a man defrauds another, under false tokens. For these are deceptions that common care and prudence are not sufficient to guard against. So, if there be a conspiracy to cheat; for ordinary care and caution is no guard against this. Those cases are much more than mere private injuries; they are public offenses. But here, it is a mere private imposition or deception; no false weights or measures are used; no false tokens given; no conspiracy; only an imposition upon 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 nonperformance of his contract, for which nonperformance he may bring his action. The selling an unsound horse, as and for a sound one, is not indictable, the buyer should be more upon his guard." In the same case Justice Wilmot held, "The true distinction that ought to be attended to in all cases of this kind, and which will solve them all, is this-that in such impositions or deceits, where common prudence may guard persons against the suffering from them, the offense is not indictable, but the party is left to his civil remedy for the redress of the injury that has been done him; but where false weights and measures are used, or false tokens produced, or such methods taken to cheat and deceive, as people can not, by any ordinary care or prudence be guarded against, there it is an offense indictable." Again, where the defendant was convicted of knowingly exposing for sale and selling a gold chain, under the sterling alloy, as and for gold of the true standard weight, a motion in arrest of judgment was sustained.2 In this case Lord Mansfield, C. J. said: "The

Y.) 201, 5 Am. Dec. 256; note, 25
Am. St. 378.

2 Rex v. Bower, 1 Cowper 323.

question is, whether the exposing wrought gold to sale under the standard is indictable at common law? *** It is certainly an imposition, but I incline to think it is one of those frauds only which a man's own common prudence ought to be sufficient to guard him against, and which, therefore, is not indictable, but the party injured is left to his civil remedy." Notwithstanding the earlier rule that a false statement alone is not sufficient, in some recent cases in this country one has been convicted of false pretense who sold as sound a horse which he knew to be unsound.

6

Wharton states broadly that this crime can be committed by means of deceitful and illegal practices and devices, and this view is supported by Stephen;5 but Bishop's view is that the devices used must be symbols and tokens. Again, the former states that the device used must be such as might deceive the public generally, while the latter states that this is not essential.8 By an old English statute, the token used may be a privy one, and this statute is part of our common law.

§ 491. What constitutes a false token.-A false token, at common law, is anything which has the semblance of public authority, as false weights, measures, seals and marks of produce and manufacture, false dice, marked cards, and things of a similar kind, false and deceptive.10 A privy token has been defined as something false and purporting to come from one not the bearer, and having in itself some private

3 State v. Stone, 95 S. Car. 390, 79 S. E. 108, 49 L. R. A. (N. S.) 574, and note, reviewing generally American cases on false pretense.

4 Whart. Crim. L. (11th ed.), §§ 1378-1389.

5 Steph. Dig. Crim. L., art. 338. 62 Bish. New Crim. L. (8th ed.). § 143.

72 Whart. Crim. L. (11th ed.), § 1385.

82 Bish. New Crim. L. (8th ed.), § 157.

933 Hen. VIII, ch. 1, § 2.

102 Russ. on Crimes (9th Am. ed.), 609, 610. See also State v. Hammelsly, 52 Ore. 156, 96 Pac. 865, 132 Am. St. 686, 17 L. R. A. (N. S.) 244n.