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in directing the jury to render a verdict for the defendants.

By an examination of the plaintiff's testimony, it will be seen that the defendant acted in strict conformity to his warrant. While it is true that Summers


Quarter Sessions.

Commonwealth v. Howard.

Representations by a defendant that the wife of the prosecutor had cancer of the stomach which he could cure absolutely by his radio treatment if begun immediately, are within the statute relating to false pretense, and to obtain money by such means is indictable.

Such indictment need not state that the treatment was actually undertaken.

A pretense and a promise made, together and both operating in the inducement, are

within the statute.

Demurrer to indictment No. 57 for False Pretense. Q. S. of Lancaster Co. September Sessions, 1914, No. 154.

James Hale Steinman and John E. Malone, for demurrer.

testified that he thought he had told False pretense - Promise — Cure of disSteigerwalt, before the arrest, that the woman was a middling-old lady and had married children, yet nevertheless the warrant itself directed Steigerwalt to arrest Mary Yeager, who lived at the place designated therein, and, as has been said, the plaintiff informed the defendant that she was the only one of that name living at 221⁄2 East King Street. In Jones v. Hughes, 5 S. & R., 299, Gibson, J., said: "Then, as to Miller, the other defendant, who acted as constable, and, as stated in the case, strictly according to the command of the warrant, there can be no pretense, let the defense of the magistrate be as it may, that the suit could be maintained against him. Where a constable has pursued his warrant, he can be affected with want of jurisdiction in the magistrate only where he is sued alone, having, after a proper demand, refused to furnish a copy of the warrant for the space of six days." In Barr and Daugherty v. Boyles, 96 Pa., 31, Mr. Justice Mercur said: "When an execution, regular in form, and nothing on its face. indicates want of jurisdiction in the justice, is directed to the constable and placed in his hands, it is sufficient to protect him in duly executing it according to its commands. He is not required. to examine the record to ascertain whether the justice had jurisdiction, and whether the proceedings are all regular. The apparent regularity and presumed jurisdiction, as evidenced by the execution, not only protect him in its due execution, but make it his duty to proceed to execute the writ."

We are convinced that there was no error in entering judgment of non-suit, and we now refuse to take it off. Rule discharged.

Oliver S. Schaeffer, F. Lyman Windolph, J. W. Brown and John M. Groff, District Attorney, contra.

January 9, 1915. Opinion by HASS-. LER, J.

The defendant's demurrer to the indictment in this case raises but a single question, which is, whether it charges an indictable offense.

The indictment charges that the defendant did "unlawfully and knowingly devising and intending to cheat and to defraud one, James E. Hambleton, of his goods, moneys, chattels, valuable security and property, then and there unlawfully, knowingly, recklessly, and designedly falsely pretend to the said James E. Hambleton that Mary Hambleton, wife of said James E. Hambleton, had then and there cancer of the stomach in the first stage and that he, the said L. Howard, could cure absolutely said cancer of the stomach with his Radio Treatment, and if he would let it go another day longer he, the said L. Howard, could not cure it and would not undertake the case, and if he wanted to save

his wife's life she must begin the Radio | In other words, the defendant is alleged Treatment that day, to wit, February 11, to have said, in effect: 'I have the 1914; Whereas, in truth and in fact said power; I have it now; I will exert that Mary Hambleton, wife of said James E. power in the future to cure you.' This, Hambleton, did not then and there have it was contended, amounts only to a cancer of the stomach, and whereas, in future promise or a promise to cure in truth and in fact said L. Howard could the future, but it is apparent that there not cure cancer of the stomach by a is a false representation as well as a Radio Treatment, and whereas, in truth promise, a false representation of an exand in fact it was not necessary to begin isting fact and promise to cure in the the defendant's Radio Treatment on future. It would be difficult to find in February 11, 1914, to save the life of actual life any case wherein a man parte l said Mary Hambleton, as said L. How- with his property on a mere representaard then and there well knew, by color tion of fact, whether true or false, withand means of which said false pretense out an accompanying promise. If, therehe, the said L. Howard then and there fore, we look at the promise simply as a unlawfully, knowingly and designedly nullity, it does not impair the simultanobtained from the said James E. Ham- eous false pretense considered as the bleton the sum of Sixty Dollars ($60.00), foundation for an indictment.' 2 Bish. the property of said James E. Hamble- New Cr. Law, Sec. 424. And the same ton, with intent to cheat and defraud the learned author says:Nor does it matsaid James E. Hambleton, to the great ter that a promise by the accused operdamage of the said James E. Hamble- ated as a part of the inducement under ton." which the prosecutor parted with his property. The consequence attached to the false representation was not overthrown by the promise.' Id., Sec. 461.' In Com. v. Wallace, 114 Pa., 405, it is decided that, where the money or property was obtained by both a pretense and a promise, the offense of false pretense is committed. Justice Trunkey says: "It is settled that when a pretense and promise are made together, and both operate in the inducement, the case is within the statute, if the pretense of a false existing or past fact be sufficient. Indeed, when they are blended, it may be difficult to prove one without the other; and equally difficult to state the pretense without the accompanying promise, in the indictment. Both may be proved, and the jury determine whether the prosecutor would have parted with his property without the pretense. If the grand jury act intelligently, they would no more likely find a true bill on the promise alone than the petit jury would a verdict of guilty. They hear the testimony of the blended pretense and promise, and that both are in the indictment can work no prejudice to the defendant."

It is contended that the pretenses alleged are only promises of a future course of conduct, or expressions of opinion, and not representations of a past or existing fact.

That promises of future conduct and , opinions are not such pretenses as are contemplated in the Act of Assembly defining the offense of false pretense, but that the representations must be of a past or existing fact, is settled by a long line of decisions of the courts of this and of other states where statutes simi- | lar to ours are in force. It is then necessary for us to ascertain whether the representations in this indictment are of existing facts, or, as is contended by counsel for the defendant, merely promises of future conduct or opinions.

We are unable to find a case decided in this State where the facts are similar to those involved here. In Jules v. State, 36 Atl. Rep., 1027 (a Maryland case), the Court of Appeals decided that it was a representation of an existing fact to say: "You suffer from stomach trouble, and I can and will cure you within six weeks." The Court said: "The alleged existing fact is that he then and there had the supernatural and extraordinary power to cure in the manner claimed.

People . Arberry, 114 Pac. Rep., 411. is a case very similar to this one. The

defendant represented that a man had
valvular disease of the heart which en-
dangered his life, and that he, the de-
fendant, could and would cure it for two
hundred dollars. The Court said: "The
statement that defendant was suffering
from a valvular disease of the heart was
a statement of a fact. It was not given
as an opinion, but it was a statement
voluntarily made by defendant. . . . It
is not pretended that the statement is
true, and it was made just at the time
and contemporaneous with the attempt to
get an additional $200 from the aunt.
. . . He made a false statement as to
an ailment that had no existence; and
not only this, but stated that he could
cure it.
A conviction of the defendant
for false pretense was sustained.

and the representation of fact as to the disease with which the prosecutor's wife was suffering were made together, and both operated together to induce the payment of money by the prosecutor to the defendant; and, as a representation of fact as to the disease is sufficient to sustain the indictment, the case is within the statute. Com. v. Wallace, supra. In 19 Cyc., 398, the rule is stated that a false pretense of having ability, power or authority to do an act is within the statute, and to obtain property by such means is indictable."


The defendant's counsel has cited two cases which seem to be at variance with these views. In State v. Burnett, 21 N. E. Rep., 972 (an Indiana case), the representations were that the defendant was a witch doctor and could kill and destroy witches, and that the person to whom the representations were made was the victim of witches, and that unless he employed the defendant to destroy them they would kill him and his family. The court held that the representations were not sufficient to constitute the offense of false pretense, for the reason that they "were not such as a man of common understanding was justified in relying upon, and because the representations consisted principally in expressions of opinion and not of existing facts." It is not contended that the indictment in our case is bad because the representations are such as would not deceive a man of common understand

In the case we are considering, the indictment charges the defendant with having made two representations, and they, in the light of the above cases, are of existing facts: First, that the prose cutor's wife had cancer of the stomach in the first stage; and second, that he could cure absolutely said cancer with his Radio Treatment. The statement of the disease was more than an opinion; it was a positive statement of fact; it left nothing doubtful about it. The allegation in the indictment that the defendant knew it was false (and we must consider both together in disposing of this demurrer) is equivalent to alleging that it was not an opinion, but a deliberate false statement of fact. That he could cure it absolutely with his Radio Treat-ing, and we are not convinced that the ment was not an opinion nor a promise of what he would do; it was an assertion that he had power to cure the disease with his Radio Treatment. As in the other representation, the fact that the indictment alleges that he knew the assertion was false (which must be considered with it in this proceeding) is equivalent to saying that he deliberately misstated the fact that he possessed the power to cure with his Radio Treat


But, even though we consider this latter pretense a promise as to what he would do in the future, as defendant contends we should, though we do not think it capable of that construction, it

finding of that court that the representations are mere expressions of opinion, is correct. In State v. Daniel, 19 S. E. Rep., 100 (a North Carolina case), the defendant, a physician, pretended that certain medicine was too strong to be used on a sore of the face of the prosecutor, and thereby obtained possession of it, "the inference being that it was his intention to temper or weaken it." The Court held that this was but an expression of opinion, and therefore not such a representation as was necessary to make out the offense of false pretense. Neither one of these cases convinces us that the views we have expressed above. are erroneous, in view of the fact that

they conform to the opinions of the courts in the cases which we have cited.

The fact that the indictment does not allege that the defendant treated the prosecutor's wife for cancer of the stomach, which is one of the reasons alleged in the demurrer, we do not consider necessary for us to discuss. Such an allegation is not necessary to make the indictment good.

For the reasons herein expressed, we overrule the demurrer.

Commonwealth v. Howard (No 2).

Demurrer to indictment No. 6 for False Pretense. Q. S. of Lancaster Co. November Sessions, 1914, No. 6.

January 9, 1915. Opinion by HASSLER, J.

For the reasons given in the opinion filed this day in the case of Com. v. Howard, to September Sessions, No. 154, Indictment No. 57, we overrule the demurrer in this case.

Demurrer overruled.

Commonwealth v. Snavely and Nissley. Indictment-Motion to quash-Larceny.

An indictment can be quashed only for

reasons apparent in the indictment or on the records.

An indictment for larceny of a piece of pipe cannot be quashed, because the pipe was attached to the land, and therefore not personal property, this being a matter of defense on the trial.

Motion to quash indictment No. 51 for larceny. Q. S. of Lancaster County. September Sessions, 1914, No. 20.

S. R. Zimmerman, for motion.

M. G. Schaeffer and J. M. Groff, District Attorney, contra.

January 9, 1915. Opinion by HASSLER, J.

The indictment in this case charges the defendants with the larceny of a piece of pipe. We are asked to quash it for the reason that, having been attached to the land, it was not personal property, but real estate, and therefore not the subject of larceny. Depositions have

been taken to show this.

The general rule is that Courts can only quash indictments where it is plain that no judgment can be rendered in case of conviction, and that it is error to quash for matters of defense not apparent in the indictment or on the record: Wharton's Criminal Practice and Pleading, 9th Edition, 388. This principle has been followed in a number of cases in this State, among which are the following: Com. v. Church, 1 Pa., 105; McCullough v. Com., 67 Pa., 30; Com. v. Frey, I D. R., 175; Com. v. Frescoln, 11 L. L. R., 161.

In Com. v. Bradney, 126 Pa., 199, it is decided that courts have power to quash an indictment for misconduct on the part of the grand jury finding it. even though it does not appear on the records.

The reason urged why this indictment should be quashed neither appears on the record nor arises out of any act of the grand jury which found it. The indictment charges the offense of larceny. Whether the property alleged to have been stolen is the subject of larceny is a matter of defense, which should be passed upon by the jury, and cannot be decided by the Court in a proceeding such as this. We, therefore, overrule the motion to quash the indictment.

Legal Miscellany.

Martial Law in South Africa.

The English Law Journal of January 24th writes thus of martial law in South


"While, of course, there is no resemblance between the condition of South Africa at present, threatened as it is with a general strike and outrages by dynamitards, and that of Alsace-Lorraine, English jurists must view with equal concern the use of martial law in either country. It is a serious matter, even in times of civil commotion, for the ordinary law courts of the country to be divested of their jurisdiction-however partially-in favor of military tribunals. In times of actual warfare, of course, when the country is invaded by a foreign enemy, the rule is different; then martial law supersedes the ordinary law until the invader is expelled and peace restored (Ex Parte Marais [1909]). Then the maxim comes into play, Salus republica suprema lex. But in times of peace no Government has power to substitute military for civil courts where British law prevails. Such is the Common Law of England as laid down in a long series of constitutional cases, and a careful examination of the South Africa Act, 1909, which created the Union of South Africa, reveals, in its one hundred and fifty-two sections, no statutory provision over-riding this rule. Indeed, by section 17 the command of naval and military forces throughout the Union is expressly reserved to the King or the Governor-General as his representative: military affairs are taken out of the province of the Colonial Government. It follows, then, that acts done in South Africa by military tribunals in pursuance of the powers conferred upon them by the recent proclamation are all subject to revision in due course by the civil and criminal courts of the Colony. Only two pleas can be used in defense of any such acts before an ordinary court. One is the Common Law plea that the persons entrusted with the execution of martial law has used no greater amount of force

than was reasonably necessary to safeguard life and property. That is always in a proper case a justification of acts which would otherwise be criminal whether or not martial law has been proclaimed. The second plea is that an Act of Indemnity has been passed, either by the Cape or the Imperial Parliament, excusing such acts, otherwise illegal. It is authoritatively announced that the South African Government is about to introduce into the Cape Parliament such an Act of Indemnity. It may be assumed that, in accordance with constitutional precedents, the proposed Indemnity Act will expressly provide for compensation to persons injured by the operation of martial law, and for redress where abuse of the powers entrusted to any officer may be proved."

Declarations Made in Sleep

In a case in the Supreme Court of Colorado, Martiney v. People, 132 P., 64, the prisoner was charged with the murder of a woman. One of the witnesses for the state testified that a few days after the killing he slept in a bunkhouse with the prisoner, and that about. half-past one in the morning he heard him exclaim: "I shot her! I shot her! I shot her! I had to do it to save myself from the pen!" and that he thought he was asleep, but did not know. The Court holds that it is only the voluntary statements of a party that may be used against him, and one is not responsible for what he says in his sleep, because he is unconscious and it is not voluntary, and that where there is a question as to whether defendant was asleep or awake when he made the uterances, it should be left to the jury under proper instructions.

"The witness said that he did not know whether the defendant was asleep or awake, but thought he was asleep when he spoke. Under such circumstances, the giving of the following instruction was erroneous: Verbal testimony of admissions of guilt, verbally made by defendant, when he may or may not have been conscious of what he was saying, should be considered by you with great caution,

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