The New York herald., 1869-01-20

A Case of False Prctence-Probable Cause
Sufficient to Jastify Detention for Trinl.
Before Judge Barbour.
writ OF habeas corpus and certiorari was sued
cut in tho Superior Court before Chief Justice
Barbour In behalf OF one Patrick Welsh returnable
yesterday morRing before Justice Barbour, at
ten O'Clock. At the opening OF the court the
prisoner was brought up from the prison, in obedt
ence to the order OF the Court Assistant District
Attorney George W. Blunt appeared upon behalf OF
the people, while william +. Kintzing appeared
~ counsel for the prisoner.
Mr.. Kintnng said that upon the 3lst day OF last
December the prisoner--an old man, somewhere In
tho neghborhood OF sixty years OF sge-was arrest
cd upon alleged charge OF false pretence preferred
by one Myers. He was committed for trial, since
or ovef three weeks; that he asked Tor the dis. lis
q m sSan naHn S% s wSo nn sns
warrant his further detention. The facts as con-
taned In the afndavit showed that upon the 10th OF
November hast the prisoner purchased a looking
glass from the complainant for Twenty-Five dollars
payfrg three dollars cash down at the time and
the glass was all paid for, alleging at the time that
he was the proprietor Of the Shewell House, we'll
turned our the defendant was not
the propsietor and the consequence was that
the complainant was dcfrauded ont Of the bal
ancc OF his money. For the purposes OF this motion
counsel demurrcd to the ailidavit admitting all the
facts therein contained, and contended It was no
false pretcnce within the meaning OF the statate.
IL has been decided That false pretence Is not with
in the statute when the exercise or common pExl
dence and caution the part OF the person deceived
would have enabled him to avoid the Imposition The
statute Was passed TO protect the weaker part of
mankind II Is true the defendant may have tod lie
when he said that Ne was the proprietor of the
shewell House, but something more than that
must be established TO justify conviction.
II IN not every lie that will constitute the
crime. Counsel then cited the case OF the People
stetson a Barbour), where an Indictment was found
against party for obtaining watch from party
rpOn the false repre- cseutation that the defendant
was constable and had warrant against such per-
son. issued by justice OF the peace for the crime OF
rape aud that he would settle the SAME II the per-
son defraudcd would give the defendant the watch;
Ali these facts conceded an n their falEty, and
yet the Court held that II dd not amount TO crime.
It not such pretencc as was calculated TO de-
ccive person OF ordinary prudence and discretion
than the now before the court The comps lnant
trusted the defendnnt--ln other words gave him
credit. III he was OF even ordinary intelligence
he ought 10 have known that " was not likely
that the proprietor OF the Shcwell House would
want 10 buy looking glass on such terms rs
the complainant parted with his property in this
case Prosecutions OF this chafac arc getting TO be
looked upon with O great deal or disfavor by the
brought for no other purpose than that OF collect
ing uept or satisfying private malice. Coun-
rel then asked for the discharge or the prisoner at
the same time repretting that any police magistrate
magistrate acted IN this case. District Attorney
Blunt said he Thought the alJlGavit showed that n
false preeuce had been committed, ana that the
magistrate acted properly In the matter IN holding
the accused for trial.
chef Justice Barbour said that the af,ldavit
showed probable cause. ana that ali that was re-
uuircd 10 appear before o magistrate 10 Justify
eommittal for trial The prisoner obtained the pro-