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practices, known as mock auctions, most fraudulently obtained great sums of money from unwary persons, to their great impoverishment, each and every person who shall, through or by means of any other gross fraud or cheat at common law, designedly and with intent to defraud, obtain from any other person any money, or any goods, wares, merchandise or other property, or shall obtain, with such intent, the signature of any person to any written instrument, the false making whereof would be punishable as forgery, is guilty of a felony; provided always that if, upon the trial of any person indicted for such fraud, it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to an acquittal, and no person tried for such fraud shall be liable to be afterwards prosecuted for larceny upon the same facts."

The above mentioned statute to prevent gross frauds and sup press mock auctions extends to no other frauds than those indictable at common law, except mock actions.2

XXX. MALICIOUS INJURY TO RAILROADS.

The Revised Statutes provide that every person who shall willfully, with malicious intent, remove, break, displace, throw down or destroy, any iron, wooden or other rail, or any branches or branch ways, or any part of the tracks, or any bridge, viaduct, culvert, embankment or other fixture, or any part thereof attached to or connected with such tracks of any railroad in this State, in operation at the time of the passage of the act, or which should thereafter be put in operation; or who shall willfully, with like malicious intent, place any obstructions upon the rails or tracks of such railroad, is guilty of a felony.3

But the preceding section is not to be so construed as to extend to cases where death to a human being shall result from the commission of either of the offences mentioned in said section.4

XXXI. PASSENGER TICKETS UPON STEAMBOATS AND OTHER VESSELS.

By the Laws of 1860, chapter 103, page 177, various frauds in relation to the making and vending of passenger tickets upon

1 Laws 1853, ch. 138, § 1; 1 R. S., 535, §§ 58, 59.

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steamboats, steamships and other vessels, are made felonies. As the act is lengthy it is not deemed necessary to insert its provisions here.

XXXII. PRODUCING PRETENDED HEIR.

Every person who shall fraudulently produce an infant, falsely pretending it to have been born of parents whose child would be entitled to a share of any personal estate or to inherit any real estate, with the intent of intercepting the inheritance of any such real estate, or the distribution of any such personal property from any person lawfully entitled thereto, is guilty of a felony.1

This offence divides itself into the following questions: First, Was it a fraudulent production of the child; Second, Did the defendant falsely pretend that it was born of certain parents; Third, Would a child of the parents of whom the defendant pretended it was born be entitled to inherit; Fourth, Was it the defendant's intention by the fraudulent production to intercept the inheritance.2

XXXIII. POISONING.

The following sections of our statute declare it to be felony to administer or expose poison in the cases therein mentioned. Of all the different modes by which death is effected, that by poison, willfully administered, may be considered as the most detestable; because it can of all others be least prevented by courage or forethought. The act itself necessarily implies the most cool and deliberate malice in the prepetrator, and no provocation is allowed to justify it. On account of its singular enormity, the English statute formerly made it treason, but it was subsequently made willful murder. The perpetrators of murder by poison were anciently punished more severely than the accomplishment of death by any other means; one sentence was to be boiled to death.3

(a) Administering Poison to Human Beings.-Every person who shall be convicted of having administered, or having caused and procured to be administered any poison to any other human being, with intent to kill such human being, and which shall

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have been actually taken by such being, whereof death shall not ensue, shall be punished by imprisonment in a State prison.1

Where, upon an indictment for poisoning, it was proved that the prisoner administered two berries of the colocus indicus to a child of nine years old, with intent to murder it, it was proved that the kernel, which is a strong narcotic poison, is inclosed in a strong shell or pod, very difficult to break, which is innoxious; and that the digestive powers of a child of that age would not break or affect the pod, so as to allow the kernel to act; but that it would either be ejected from the stomach, or pass through such a child without harm, and in fact such was the case; one berry was thrown up and the other passed through without injury to the child. It was objected that, under these circumstances, the berries could not be deemed poison; for being in the pods they could not effect injury to any such child; the prisoner was convicted, and the question being reserved for the criminal appeal court, the judges held it sufficient that these berries were poison, and that they were administered with intent to kill, to bring the case within the statute and that the conviction was right.2

(b) Exposing Poison to Cattle, etc.-Every person who shall willfully administer any poison to any horse, cattle or sheep, or shall maliciously expose any poisonous substance, with intent that the same should be taken or swallowed by any horse, cattle, or sheep shall, upon conviction, be punished by imprisonment in a State prison not exceeding three years, or in a county jail not exceeding one year, or by a fine not exceeding two hundred and fifty dollars, or by both such fine and imprisonment.3

(c) Poisoning Food, Springs, etc.-Every person who shall mingle any poison with any food, drink or medicine, with intent to kill or injure any human being, or who shall willfully poison any spring, well or reservoir of water, is guilty of a felony.

(d) Administered by Physicians.-The statute further declares that if any physician, while in a state of intoxication, shall, without a design to effect death, administer any poison, drug or medicine, or do any other act to another person which shall pro

12 R. S., 665, § 39.

R. v. Claderoy, 1 Car. & K., 176; 1 Arch. Cr. P., 258.

2 R. S., 689, § 16.

2 R. S., 665, § 40.

duce the death of such other, he shall be deemed guilty of manslaughter.1

XXXIV. PERJURY.

Lord COKE defined perjury at the common law to be a crime committed when a lawful oath is administered in some judicial proceeding to a person who swears willfully, absolutely and falsely in a matter material to the issue or point in question.2

But by our Revised Statutes the offence is defined to be the willful and corrupt swearing, testifying or affirming falsely to any material matter upon any oath, affirmation or declaration legally administered.

1. In any matter, cause or proceeding depending in any court of law or equity, or before any officer thereof.

2. In any case where an oath or affirmation is required by law or is necessary for the prosecution or defence of any private right or for the ends of public justice.

3. In any matter or proceeding before any tribunal or officer created by the constitution or by law, or where any oath may be lawfully required by any judicial, executive or administrative

officer.3

1. Of the Oath.

It is immaterial in what form the oath is administered, provided the party at the time professes such form to be binding on his conscience.4

An oath administered by mistake, e. g., upon Watts' Psalms and Hymns instead of upon the Gospel, is a valid oath. If the party taking it makes no objection at the time, he is deemed to have assented to the particular form adopted, and is liable to perjury as if the oath had been regularly administered. The legal effect of an affirmation is the same as that of an oath."

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2 R. S., 662, § 17. For other cases of administering poison, see Misdemeanors," post.; for history of the art of poisoning, see 1 Beekman's History of Inventions, p. 74, et seq.; for characteristics and symptoms of different poisons, see Wharton & Ste'le's Medical Jurisprudence.

1 3 Inst., 164.

* 2 R. S., 681, § 1.

Com. v. Knight, 12 Mass., 274; Campbell v. The Peo., 8 Wend., 636; 2 Hawks., 458; 2 Rob., 795; 1 Rob., 729; 2 Murphy, 320; 3 Id., 153.

Peo. v. Cook, 4 Seld., 67.

• Pendergrast's case, 2 City H. Rec., 11.

C. P.-43.

2. Before a Person Authorized to Administer an Oath. The oath must be taken before a person having competent authority to administer it, otherwise the false statement would be no offence.1 Therefore, no false swearing before individuals acting merely in a private capacity, or before officers who have no legal jurisdiction to administer the particular oath in question, will amount to the offence of perjury.? And although the officer stands colorably in the situation which confers a power of receiv ing an oath on such an occasion, if in fact he is not duly appointed the proceedings will be of no avail. For though it is sufficient prima facie to show the ostensible capacity in which he acted when the oath was taken, the presumption may be rebutted by other evidence, and the defendant if he succeed will be entitled to an acquittal.*

Perjury cannot be committed by taking a false oath in a case before a justice of the peace of which the justice has not jurisdiction. Perjury may be assigned upon a false oath taken before a grand jury. No indictment for perjury will lie in one State for a false oath administered in another. A judge in New York has no authority to administer an oath in Canada."

The general rule as to jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be so, and on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.

A mere voluntary oath is not perjury. Thus, perjury cannot be assigned of a false oath to a protest taken before a notary public, as part of the preliminary proofs in case of a marine loss. The oath in such a case is a voluntary and extra-judicial proceeding. So no breach of an oath made in a mere private concern, as in entering into a contract, however malicious, is an indictable

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1 Hawk., ch. 59, § 4.

• 3 Inst., 166.

Id.; 3 Camp., 432.

3 Camp., 432.

State v. Alexander, 4 Hawks., 182; State v. Furlong, 26 Maine, 69.

• State v. Fassett, 16 Conn., 457; 2 R. S., 725, § 31.

' Jackson v. Humphrey, 1 John., 167.

1 Saund., 74, Bac. Abr., tit. Pleas, E. 1.

Peo. v. Travis, 4 Park. Cr. R., 213.

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