Wheeling daily intelligencer. [volume] (Wheeling, Va. [W. Va.]) 1852-1859, 1857-09-12
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From The \. Y Daily IImes.I
Nudge RuaaeIIs ChnFEe 10 she Grand Juf:
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From the n. " Daily Tttne9.l
| Judae RusaeITs Charge 10 she Grand Jury
in abe Case Of Mrs. Cunningham
After a few preliminary remarks, Judge Rus
sell said, in reference to to the case OF Mrs Gun
ningham
Upon the calendar is case which will be, as
I I learn from the District-A ttornev, the hrst
4 brought before you. 1t is charge of false pre-,
fences as to personal Circumstances connected
| with rights Of property; and as It Is the hFst
! time the charge has ever been made under the
Statue. l deem it my duty to apprise you OF the
Law of the case. Whether the fact meets the law,
is for you to determine, by examining the VII,
inesses II seems to me to be a very plain and.
concise Statute. Twill read it
The 5lst section reads thus:
tEvery person who shall fraudnlently produce
nm 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 dis
tribution of any such personal property, from
any person lawfully entitled thereto, shall, upon
conviction, be punished by imprisonment in
State Prison not exceeding ten years:
In my judgement the Statute embraces the
following cases: First-Ibat OF a husband or
wife who shall fraudulently produce an infant.
The survivor of laSCul marriage may offend
against this Statute. Second-That of man
or a woman who shall petend falsely that mar
rage existed, and who should fraudulently pro-
dnce u child MS the issue of the marriage, with
tile view stated by the Statute, wherein if the
marriage had been real its issue would have been
entitled to Inherit
Whether the marriage be real or pretended,
any person who produces child. with the fell
OnIous view stated, oiTends against il. In other
words, the statute may be violated by palming
off upon real marriage spurious issue, or by
falsely alleging the existence of n marriage, the
Il o,NE
property, and producing n child or children as
the issue of this spurious marriage. In the one
case the marriage is real and tho issue spurious;
in the other, both the marriage and the issue are
spurious. The statute is meant to be read MS
though all after the word "pretending," to the
words with the intent, exclusive, was matter
of pretencc except the conclusions law as to
heirsnip. If the marriage pretended to have
existed, is such All one as that lit had existed,
could have produced children entitled to GER
tain inheritance, then, 10 falsely allege its ex-
istence, and fraudulcntly to produce Infant as
the result oft, is within the inhibition of the
Statute As to the meaning fthe word pro-
ducc, it would seem TO be to exhibit, and assert
or insist that an infant was born Of a particular
marriage, at time when, if there We're issue of
such marriage, it would be entitled TO dis.
tributive share Of personal estate, or to an in
heritable interest in real estates; as where the
person from where the estate was to come, was
c1p3JtteF D10rIuS Oy Delng sent 10 Inc STATE RrlS-
on for life, or was actually dead. Cases may be
conceived or where thozo llosed =PFo5e1itor was
not actually dead, and yet the Statute might be
successfully broken; where, for instance, the
alleged progenitor becomes insane, with lucid
intervals, not having made will of his proper
ty during sanity. To fraudulently produce an
infant to intercept the inheritance, when for
every legal purpose the alleged progenitor is
dead and could not turn his property from that
channel in which the law would place 1T if he
was actually dend, would seem to violate the
statute. The statute does not so much aim at
the tins when the infant is produced, as at the
spirit with which the act WINS DONE Was the
child produced for n certain purpose? Still, the
time must be so far considered, as it must be
seen that il things remained ms they were at the
time the infant was produced the fraudulent
act, but for being detected, would have been
successful 1t has been said that to forge will
in the name of living party is a felony. Strict
ly speaking, however, there can beno will of
living person, for such an instrument takes cf-
feet only from death. The spirit Of the act is
looked at, for it is part of the felonious pre-
fences, that the party whose will is forged is
dead why cannot all necessary facts although
not existing in reality be falsely pretended in
relation to false heir, so as to come within the
statute in question. The crime in question is
species of quasi forgery. The statute looks at
the attempt to cloud the title to personal or real
estate, by the production of a spurious distribu-
tee or false heir. Whether married or unInarri-
ed, the act in alleging marriage and producing
child as the offspring of it, must satisfy the
statutory word produce" and be a producing
within the meaning of the statute.