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AMERICAN

CRIMINAL REPORTS.

A SERIES DESIGNED TO CONTAIN THE LATEST
AND MOST IMPORTANT

CRIMINAL CASES

DETERMINED IH

THE FEDERAL AW STATE COURTS IN THE UNITED STATES,

AS WELL AS

SELECTED CASES,

iMPORTAJrr TO American Lawyers,

FROM THE ENGLISH, IRISH, SCOTCH AND CANADIAN
LAW REPORTS,

WITH

NOTES ANT> EEFEREI^^OES.

JOHN GIBBONS,

Of the Chicaoo Bar.

Vol. IV.

CHICAGO:

CALLAGHAN AND COMPANY,
Law Book Pubushers.

1885.

l^t

Entered according to Act of Congress in the year eighteen hundred and eighty-Hve, by

CALLAGHAN AND COMPANY,

in the office of the Librarian of Congress, at Washington, D. C.

DAVID ATWOOD,

miNTER AND STEREOTYPER,
MADIiON, WW,

WAV 2 8 J576

PREFACE.

The volumes of American Criminal Reports heretofore published wero
received by the profession and legal press with gratifying manifestations of
favor and approval; and, in undertaking the editorial work at this juncture
in the series, I entertair 'he hope that this volume will be welcomed with
no less cordiality, and prove no less useful, than its predecessors.

In discharging the duty of compiler, I have aimed to collate the latest
and most imi^rtant cases, and to give in full the decisions of the courts I
have sought, also, to make accurate, reliable and valuable the notes that it
lias seemed fit to insert. To this end, indeed, I have deemed it my duty to
examine carefully the different cases cited. If I have given license to the
expression of my views on certain questions, my apology must be that,
having given earnest consideration to the points in controversy, and the
decisions bearing upon them, it appeared to be hardly less than a duty to
state what I regard as the better rule of law in the premises.

The index, which is very full, has been prepared with a view to present-
ing to the practitioner, and enabling him to determine at a glance, the con-
tents of the volume bearing upon each topic treated.

I take great pleasure in acknowledging indebtedness to my esteemed
friend and former schoolmate. Col. William Hoynes, Professor of Law in
the Univereity of Notre Dame, Indiana, for many valuable suggestions
during the progress of the work. ^^^^ ^^^^^^^

Chicago, October 30, 1885.

TABLE OF CASES

EEPORTED IN THIS VOLUME.

PAGE.

Adams v. State 331

Adams v. The State 309

Adams et al. v. The People 351

Adams, The State v 392

Ah Wah and Ah Yen, TeiTitory v. 574

Aldrich et al. v. The People 534

Allen V. The State 252

Amery, State v 112

Anderson v. Com 460

Ashton V. The State 90

Balch, state V 516

Blackwell v. Tlie State 183

Boyd V. The Com 143

Brittain, State v 458

Brittleton et al.. The Queen v . . . 605

Brosnahan, Jr., In re 16

Brown, State v 299

Buckrice v. The People 106

Burke v. Tlie State 579

BuzzeU, State V 410

Campbell v. The People 838

Carll, Ex parte 253

Carll, United States v 246

Carpenter et al.. State v 559

Casey, The People v 312

Cheaney v. The State 264

Cook, The State v 485

Corkin, Com. v 15

Costin, State v 169

Coylev.Com 379

Dame,Statev 444

Daniel et al. v. State 247

PAQS.

D'Argencour, The People v 240

Davis, People v 514

Day, State v 104

De Banks, The Queen v 601

Dickey v. The State 249

Dolan, The People v 308

Donovan, State of Iowa v 25

Dowlen V. The State 49

Downs, State v 42

Drake v. The State 320

Dreesv. The State 571

Dunaway v. Tlie People 60

Dunn V. The People 52

Edwards v. Com 460

Exnicios, The State of Louisi-
ana V 160

Fanning v. The State 6dl

Fay.Statev 300

Feoms et al.. Appellants, v.

O'Brien 611

Fleetwood v. The Com 36

Fletcher, State of Illinois v 157

Flores, People v 485

Freeman v. The State 470

Fulford, The State V 43

Garvey's Case 254

Gedicke, State V 6

Gonce, The State V 68

Gordon, State v 1

Graham, State v 276

Graves V. State 386

Grise v. The State 146

Guthrie V. State 78

mL^>:

AMEBICAN CRIMINAL REPORTS.

PAOE.

Haflev. State 09

Hairv. State 127

Hall,Peoplev 357

Hamilton, United States v 477

Hannett, State v 38

Hartnett, The State v 572

Herron V. The Cora 238

Hess V, State 178

HUI and Blake, State v 102

HoUis, The Queen v 609

Holmes, The Queen v 591

Hoptv, People 305

Hopt V, Utah 417

Hutcliinson, State v 162

Jackson, In ro 508

Jacobs V. State 405

James, State v 318

Jenkins, State v .... 330

Johnson v. The Com 140

Keenan v. The People 434

Ker V. The People 211

Landsberg, United States v. .7.. 474
Leong Quong, People v 334

Magrath, State v 279

Malloiy, The Queen v 580

Manning, The Queen v 583

Martin, The State v 86

Maurer, The Queen v 588

McDaniel v. The Com 369

McGinnis, State v 349

Moore, Com. v 230

Moran, The People v 476

Mosley, State v 529

Mullen, State of Louisiana v 181

Muller, The People v 453

Munday, State v 234

Murphy v. The People 323

O'Laughlin, People v 542

Oliver v. The State 583

PAOE.

Payne v. The State 155

Priest, Ex parte 13-1

Railroad Co., State v 137

Raymond, The People v 124

Reese and others. People v 527

Reynolds v. The State 152

Rice V. Com 562

Richardson v. The Com 479

Ritzman v. The People 403

Robinson v. State 570

Rolfs, Petitioner, In re 446

Rooks V. The State 483

Scarlett, State v 278

Shaffer, State v 83

Shipley, Territory v 491

Sifred v. Com 304

Simmerman v. State 91

Smith, Statev 275

Sontag, Ex parte 523

State of Nevada v. Charley Hing 375
State of Nevada v. District Court 230

Steisiger, The State v 482

Stephenson and others, The

Queen v. 593

Stewart, State v Ill

Stewart v. The State 271

Swanv. Com 188

Taylor v. The State 30

Tobin V. The People 555

TraHlt V. The People 293

Trczevant, State v 566

Upstone V. The People 395

Vanderpool, The State v 203

Van Houten v. State 272

Vines et al., The State v 296

■V
\
■V
\
■V

'.>

TABLE OF CASES.

Vll

PAOE.

Walters V. Tlie State 33

Watson V. State 71

Wheeler, People v. 191

Wiggins V. People, etc., in Utah 494

Williams v. The State 65

Williams v. The State 293

PAOE.

Williams v. The State 415

Wilson, Ex parte 283

Woodson V. The State 477

Ziebold, In re 118

TABLE OF CASES

CITED AND REFERRED TO.

PAOR.

Abhott, People v., S3 Cal., SM 841

Abcrnathy v. Latlmore, 10 Ohio, 880 ... . 17(1

Adams, State v., 03 Ind., 110 310

Addington, State v., 77 Mo., 110 St

Adriance v. Lugrave, 50 N. Y., 110. . . .'.'05, 8111

Aguila, State v., 11 Mo., 130 4tf

Ah Lee, In re, f) Fed. Hop., 800 1*1

Alden v. The State, IH Fla., 187 77

Alexander, Stote v., GO Mo., 131 87

Alexander V. Com., 10.-)l'a. St., 1 318

Allen, The People v., 6 Denio, 70 177

Allen V. State, 5» Ind., 401 578

Anderson, State v., 83 Minn., 00 38.')

Anderson v. The Com 401

Andrews, Com. v., 07 Mush., MS 470

Angelo V. People, 00 111., 800 3115

Anonymous, 31 Me., 508 470

Anon., 7 Mod. Rep., 15 670

Anthony, People v., 50 Cal., 400 515

Archer, State v., 54 N. H., 405 413

Arkell v. Ins. Co., 00 N. Y., 108 43

Armstrong V. State, 1 Coldw., 33S 10(1

Arnold, People v., 15 Cal., 470 400

Arnold v. State, Tex. Ct. App., 4!n. . . . 6'W
Ashworth v. Kitteiidgc, 18 Cusli., 103 (00

Mass.) 100

Atherton, People v., 51 Cal., 405 877

Atkins V. State, 10 Ark., tm 613

Attorney-Gen. v. The Qlass-Plato Co,,

1 Anstr., 30 801

Austin, Com. v., 07 Mass., 505 413

Austin V. People, 108 111., 801 680

Avery, U. S. v., 13 Wall., 8B1 477

Aveson v. Kinnaird, East, 188 7

Bacon v. Charlton, 7 Cush., 881 7

Bailey, Rep. v., 18 Cox, C. C, 50. . 170

Bniley, State v., 81 N. H., 581 441

Bailey, State v., 81 N. H., 313 415

Bailey v. The State, 58 Ala., 414 885

Bakeman, Com. v., 105 Mass., 63 413

Baker v. Bramen, Hill, 47 113

Baker.State v.,80Mo.,838 687

FAOE.

Boker, State v., 1 Jones (N. 0.), 278 607

Bolbo V. People, 80 N. Y., 484 314

Bald, Regina v., 8 Den. C. C, 430 487

Baldey, Regina v., 5 Cox, 0. C, 583 483

BaKly, State v., 17 Iowa, 30 89

Ball, Rex v., Russ. & R. Cr. Cas., 188. .. . 83

Bunk V. Com., 10 Barr, 448 305

Biirbee v. Hereford, 48 Mo., 883 303

Barbler V. Connolly, 113 U. S.,87 184

Barber v. Men ian, 11 Allen, 383 7

Barker, The State v., 04 Mo., 883 87

Bamett v. People, 54 III., 385 801, 414

Ilurret, People v., 1 Johns., 60 807

Barrle, People v., 40 Cal., 843 433

Burron v. The ':!lty of Boltlmore, 7 Pe-
ters, 873 183

Barry, Com. v., 184 Moss., 385 38')

llortemeyer v. State, 18 Wall., 133 23

Burton v. The State, 18 Ohio, 881 100

Burton, The State v. , 71 Mo., 888 30 1

Uutchedor v. Tenny, 87 Vermont, 378 .. . 177
Buiigh, United States v., 4 Hughes, 501 . . 888

Bean, Com. v., 11 Cush. (Mass.), 414 810

Bean, Com. v., 14 Gray (Mass.), 53 240

Bflencitt, People v., 81 Cal., 544 307

Bull V. Mallory, 01 III., 107 534

Hell, The State v., 05 N. C, 314 330

Bell V. Stole, 44 Ala., 8a3 578

Bcller, In re, 1 Kan. Law J., 830 183

Ben V. The Stote, 37 Ala., 103 153

B -nnett v. Bullock, 85 Pemi. St., 304. .. . 573

Bennett v. People, 90 III., 003 550

Bernard v. Porvin, 1 Morris (lowo), 399.. 170

Berry. Com. v., 09 Mass., 438 175

Bertrand, Reg. v., L. R., 1 P. C, 680 33

BIgelow, Ex parte, 1 13 U. 8., 338 883

BInkemon. Reg. v., 18 Cox, C. C, 467. . . 10
Blakemore, Reg. v., 8 Den. Cr. C, 410. . . 413

Blotichard v. Fisk, 8 N. H., 39S 310

Blonford v. The State, 10 Texas, 087 ... . 809
Block, United States v., 4 Sawyer, 811 . . 288

Bogart, People v., 30 Cal., 845 170

Boliammon v. Com., 8 Bush, 488 613

Boles V. I'lnkerton, 7 Dano, 453 68

Bond V. State, 17 Ark., 800 118

AMERICAN CRIMINAL REPORTS.

PAGB.

Bonner, Com. v., 07 Mass., 687 475

Boone Co. v. Jones, 54 lowo, 699 104

Boornclt v. Com., 8 Leigh, 745 89J

Borland v. Mayo, 8 Ala., 101 154

Bostick, State v., 4 Harr., 503 4*3

Bower v. The State, 5 Mo., 334 392

Bowles V. State, 5 Sneed ( Tenn. ), 300 . . . . 578
Bowman v. Woods, 1 O. Green Rep., 443. 193

Boyli', The State v., S8 Iowa, 523 3:)t

Bradford, Com. v., 180 Mass., 42 1.".

Brandt, State v., 41 Iowa, 007 177

Brandt v. Com., 13 Norris, 290 190

Brayman, Com. v., 13G Mass., 438 433

Bren, Reg. v., 9 Cox, C. C, 303 170

Brewster, State v., 7 N. II., 118 311, 219

Bridges, State v., 29 Kan., 133 531

Briilgman, State v.. 49 Vt., 203 82

BrigRs V. OaiTfltt, 18 Cent. Law J.. 103. . 523
Brow V. Hathaway, 95 Mass. (13 Allen),

239 5:3

Brown, Cora, v., 121 Mass., 81 197

Brown v. Com., ^3 Pa. St., 3.'5 131

Brown v. County Commissioners, 9 Har-
ris, 37 395

Brown's Case, Vent., 213 4

Brown v. State, 8 Bl.iclif .. 501 570

Brown v. State, 10 Ind., 490 578

Brown V. State, 52 Ala, 3 19 l.)4

Brown. State ex rel. v. Stewart, Circuit

Judge, (» Wis., 587 110, 21 1

Bruce, State v., 48 Iowa, .',3D 35

BrulTey, Stute v., 75 Mo., 3 59 8 <

Bunnels, Com. v., 10 Mass., 518 6.jO

Burdett, Rex v., 4 D. & A., 05 .592

Burdick, Com. v., 2 Ban-, 104 £31

Burgess, Reg. v., 9 Cox, C. C, 303 170

Burke, Com. v., 14 Gray, 100 413

Burrell's Case, 7 Barr. ,31 380

Burrows, State v., 11 Irrd., 477 831

Burt V. lHnj:iud, 99 U. S., ISO 319

Burt et al.. State v., 35 Vt . 373 5«)

BuARex v.,Russ. & R. C. C, 372 80

Button, Rpg. v., 11 A. & E. (N. S.), 929 . . 414
Buxton, State v., 8 Swann (Tenn.), 57 . . . 1 10

Buzzell, State v., .5S N. 11., 2.-»7 412

Buzzo, United States v., 18 Wall., 133 .. . 2S7
Bryan, Kx parte, 17 Nev., 139 570

Cain V. State, 18 Tex., 387 433

Caldwell, United States v., 8 Blatchf.,

131 20.5,219

Calkins v. State, 18 Ohio St., .300 531

CuUahan v. The State, 21 Ohio St., 31(i . . 03

Calvin, The State v., Zobr. (N. J.), 807 . . 187

Campbell v. Com., 15 Norris, 314 3B0

Campbellv. People, 10111., 18 4!W

Campbell, People v. , 40 Cal. , 120 558

PAOB.

Campbell v. The State, 33 Ohio St., 70. . . 170

Cartile V. Wood, o;i Mo., 513 09

Carlisle v. The United States, 10 Wall.,

147 403

Carll, Ex parte, 100 U. 8., 521 883

Carman, The State v., (Hi Iowa, 130 118

Carpenter v. Calvert, H3 111., 0.1 400

Carpenter v. State, 4 How. (Miss.), 103. . 578

Carroll v. State, 23 Ala., 33 50:

Cass v. Randall, 4 Gray (.Mass.), 13S fil

CoKsody, State v., 12 Kan., .'wO 620

Cttucemi V. People, 18 N. Y.. 13^ 575

Chase v. The People, 40 lil ,, 3"3 57

Chesley, Com. v., 107 llass , 2;.3 414

Choate, Com. v., 103 Mass.. 451 15

City of Ripon v. Bettel, 3) Wis., 019. ... 800

Clapp, Com. v., 4 Mass., 1C3 683

Clark v. Com. , 5 Casey, 1 ,'8 380

Clark V. Peiiam. 2 Atk.. ;«) 415

Clark V. State, 8 Humph. (Tonu.>, 071 .. . .392

Claryv. Ciary, 2Ire(1..78 399

Clerk, Reg. v., 1 Sal k., 377 597

Cleveland, State v., 5 f Jle., 5!H 630

Clewes. Hex v., 4 Carr T< Vayue, 221 .... 428

ClilTord, Com. v., H Cusli. (Muss), 21.">. . . 210

Cofh, People v.. .M Cal , 027 5.W

Cocheco v. StralTord. 51 N. H., ISl 319

Cocks V. Purday, 2 Cinr. & K. , 209 101

Codd V. Cabe, 1 Ex. Div., 332 8"

Cohen, People v.. 8 Cal , 1> 170

Coleman v. The People. .33 N. J., 81 513

folcmaii V. The it;i!i>. 13 Ala., m.' 251

Colia V. State, 10 AIo., 7H1 ... mi

Collier V. Simpson, 5 C. & P., 71 194

Collins. State v.. 3.' Iowa, 3< 518

Collyer, State v.. 17 Nev., 273 570

Connaghan v. Thu I'tv pli-. 88 III., l(i;), . . 5<
Ciimpton, Aidt & Co. v. Wilder, 40 Ohio

St., I.'IO 210

Cook, United States v.. 17 Wallace, 173. 278

Cooke, Rex v., 5 B. & C, .';'!* WS, ,381

Cooke, Reg. v., 1 F. & F., 01 59.', 593

Coon, People v., 1 Wend.. 277 140

Cooper, State of Missouri v., 43 Mo., 01. 3!18

Cooper, State v., 1 Green (X. J.), 3il . . . . 414

Cooper. State v., 8 Zab., ,32. 8

Copp, State v., 15 N. II., 21 .' <) 14

Corkin, Com. v., ant •, p. 13 ]01

CornettI, People v., 92 N. V., 83 314

Corning, The People v , 2 N. V., I H'i

Cotta, People v., 49 Cal., 107 377

Cowan V People, 14 III., 3H S3 J

Cox V. People, 80 N. Y., 5:)() 314

Craft V. Com., 81 Ky., 230 la-j

Cranch, Ex parte, 1 12 U, S,, V,A 883

Cross, United States v., 1 MucArthur,

>49 888

Crouch, The Queen v., 1 Cox's Cr. Cases,

»4 195

Crozier, State v., 13 Nov., 3J0 370

TABLE OF CASES CITED.

PAOB.

.. 176
.. 69

HI.,

403
883
113

400
078

aor.

61
620
575

87
414

15
800
843
3«)
415
393
3!M)
897

g:«

42S
!MU
B.-)K

3 m

191
3"

17(!

M'i

851

SWJ

194

81 3

870
5,<

210

37H

3'18
414
8
•i44
101
314
33
377
S3 J
314
Via

PAOB.

Cniikslmnk, United States v., 02 U. S.,

581 118,810

Cubitt V. I'utin, 8 Barn. & Cress., 857. .. . 573

Cu(ldinj,'ton v. Wilkins, Hobart, 81 401

Cuniiiiiiii^s. Com. v., 3 Cnsh., 313 3 J

CuniminKS v. Nichols, 13 N. H., 420 349

Cunningham, Com. v., 13 Mass., 345 897

Curioy V. Com., M Pa. St., 151 545

Curtis, Ex jwrte, 100 U. S., 371 853, 883

Curtte, The State v., 77 Mo., 207 444

Dailoy, Com. v., 13 Cush., 80 578

Dalton, rcoplc v., 15 Weml., 5S1 171, 889

Darmer v. The State, 51 Ala., 137 848

Daviess V. Fairburn, 3 Mow. U. 8. R., 030 305

Davis, le"pIo v., 31 Wend., ;«» 243

Davis, People v., W N. Y., 103 14

Davis V. State, 3 Humph. (Tenn.), 439. . . 393

Davis V. State, 3 Tex. App. , .'>88 433

Davis V. The State, 5S Oa., 171 00

Davis v. The People, 1 Parker, C. C, 447 85

Davis, The People v., .JO N. Y., 95 108

Davis, Tennessee v., 100 U. o., 357 ICO

Davis, Rex v., Car. & P. , 177. 543

Davis' Case, 18 Pa. St., 37 211

Davidson v. New Orleans, Oil U. S., 107. . 117

Davidson, The State v., 30 Tex., 335 893

Day, ReRina v., 9 C. & P., 733 633

Day V. The State. 03 Ga., 6119 18.")

Dean, Com. v., 109 Mass., 349 413

De Coursey, People v., 01 Cal., 184 8 J8

Denton, State v., Coldw., !,3^ 107, 110

Dewitt v. United States, 9 Wall., 41 83

Dias v. The State, 7 HIackf ., 80 800

Dick v. State, 3 Ohio St., 89 5.50

Dickson, State v., Kan., 809 ... 487

Dill V. State. -,5 Ala., 15 807

Dlllenbnek v. Jerome, 3 Cow., 293 »«

Dingoe, The State v., 17 Iowa, S33 29

Di.\on, Rex v., 10 Mod., .330 445

Dixon V. Richards, 8 How., 771 870

Doherty, Retina v., 13 Cox, C. C, 23 . . . 43:1

Dotan, People v., 9 Cal., 570 370

Dorr, State v., 33 Me., 498 S!)")

Dorsey, Com. v., 103 Moss., 413 807

Dowers. State v., 45 N. H., 513 44'>

Downer et al., State v., 8 Vt., 434 5«J

Doyle, Com. v., 110 Mass., 103 293

Drake, State v.. 1 Vrooni, 438 11

Drew, United States v., 5 Mass., 88 807

Drum, Com. v., 88 Pa. St., 9 893

Dnini, Com. v., 68 Pa. St., 507

Duncan, Reg. v., 14 Cox, C. C, 571 33

Dupreo V. State, .33 Ala., 380 613

Dyson V. State, 86 Miss., 303 607

Edwards, Rex v. , 6 Cor. & P. , 681 650

ElUott V. Com., 13 Bush, 170 8.>6

PAGE.

Elwe ', Com. v., 2 Met., 100 30

Emci-son, State v., 63 N. II., 019 413

Evans. Com. v., 101 Mass., 85 413

Falrchild v. Bascomb, .35 Vt., 403 883

Font V. Cathcart, 8 Ala., 725 I5i

Farrell v. The People, 16 III., 500 3*1

Farrell, Reg. v., Cox, C. C, 440 873

Feaster, State v., 25 Mo., 325 393

Felton, The State v., 85 Iowa, 67 113

Fennell, Regina v., 14 Cox, C. C, 007. . . 433

Feriter v. State, 83 Ind., 883 308

Ferrler, Petition of, lOT III., 307 107

Field, State v., 14 Me., 844 510

Field, United States v., 21 Blatchford,

3.39 288

Filburn, Com. v., 119 Mass., 297 240

FiUionv. State, 5 Neb., 354 180

Fishback v. Brown, 10 III., 74 837

Fitzgerald, State v., 75 Mo., 671 71

Fitzpatrick v. The People, 08 Rl., 270. .. . 60

Flagg V. People, 40 Mich., 706 4.33

Flanigan v. The People, 80 N. Y., 654. . . 402

Fleetwoodv. Com., p. 30 501

Folke, State v., 8 Ann., 744 40

Fooks, State v., 81 N. W. R. aowo), 501 S33

Ford V. The State, 12 Md., 614 410

i^nl. State v., 3 Strobh. (S. O, 517. .. . 304
Forsythe, United States v., McLean,

584 177

Foster v. Neilson, 8 Pct.,253 807

Fouts V. The State, 8 Ohio St., 08 393

Fox v. Ohio,5 How., 410 285

Fox V. Ohio, 5 How., 484 18J

Fox, People v., 85 Mich., 493 ... 400

Francis, Rex v., 12 Cox, C. C, 01 J .... 83
Franklin County v. Railroad, 13 Lea

(Tenn.), 581 115

Ji-eeland v. The People, 16 111., 380 813

Freeman, Rex v., 5 Car. & P., 531 175

Frost, Reg. v., C. & P., 147 803

Fulwood's Case, Cro. Car., 4^3 4

Qaige, People v., 20 Mich., 30 460

Gallagher, Com. v., 126 Mass., 54 80

Galliard v. Laxton, 8 B. & S., 303 37

Oallhnore, State v., 8 Ired., 375 40*

Garcia, People v., (a Cal., 19 156

Gardenshlre v. Parks, 3 Yorg. ,23 133

Ganlner v. People, 8 Scam., 83 645

Garland, Ex parte, 4 Wall., 3;M 463

C: .1, ner, Iv. v., 1 Den. C. C, 339 438

Garner, Reg. v., 4 Fost. & F., 316 88

Gnrnctt, People v., SO Cal., 630 648

Gorrity v. The People, 107 111., 102 85

Garvey (the petitioner) v. The People ... 860

Genet, The People v. , 69 N. Y 478

Gibbons, Reg. v., Cox, C. C, 105 475

3di

AMERICAN CRimNAL REPORTS.

PAGE.

GibbB£StantonT. State,45N. J.,879... 891

Gilbert, People v., GO Cal., 108 658

Gfllbert, State v., 87 N. C, 827 103

Gilbert v. The State, 05 Ga., 449 658

Gilbert /Armstrong, Town of Madison t. 471

Gile V. People, 1 Col., 80 8G8

Gill, Rex v., Russ. & R., 431 445

Glllon, Com. v., 8 Allen, 503 108

Gilooley v. State, 58 Ind., 188 811

Glass V. The State, 30 Ala., 539 850

Ooerson v. Com., 3 Ont., 388 . 189

Golden v. Prince, 8 Wash. C. C, 813 113

Goldsmith, In re, 84 Kan., 757 447

Goodenow, State v. , 05 Me. , 30 39

Goodhue v. People, M 111., 87. .176, 826, 330, 5.55

Goodrich, State v., 40 N. H., 186 819

Grady v. State, 11 Ga., 253 507

Graham, State v., 17 N. W. Rep., 192. .580, 6:«

Granberry v. State, 61 Miss., 410 29

Grant, The State v., 76 Mo., 230. . 37

Gray V. Com., 101 Pa. St., £30 433

Gray V. State, 63 Ala., 06 250

Green, Com. v., 1 Ashmoad (Pa.>, 889. .. . 3^2

Green v. Cornwell, 1 City Hall R , 14 . . . . 201

Griffith V. The State, 37 Ark., 334 13:1

Groomo, The State v , 10 Iowa, 898 113

Gross, State v., N. W. R. (Wis.), 802 HXi

Guild, State v, 10 N. J., 103 433

Gunnarssohn v. City of Sterling, 98 111.,

509 303

Gustafson, State v., 60 Iowa, IM 27

Hadley, Ex parte, 31 Cal., 108 174

Hagan, State v., M Mo., 193 43;!

Ilagan v. The State, 10 Ohio St., 459 393

Haile v. State, 11 Humph. (Tenii.), 151. . 307

Hall, People v., 48 Mich., 491 106, 477

Hall V. State, a5 Ga., 3b 433

Hamilton, State v., 57 Iowa, 698 83

Hammond, Town of Washington v., 76

N. C, 83 459

Ilandly, State v., 4 Harr., 506 895

Hannah, Reg. v., 18 Cox, C. C, 648 9

Hannan v. Edis, ) Mass., 347 53

Hardy v. Merrill, j N. H., 8s7 400

Harmon v. Com., 12 S. & R., 09 830, 5,'i3

Harney, Com. v., 10 Met., 483 237

Harper, State v. , 83 Ohio St., 78 14

Harriden, People v., 1 Parker, 314 55fl

Harris, The People v., 45 Barb., 494. .. . 108

Harris, State v., 4 Jones, luo 507

Harris, The King v., 8 Barn. & Alderson,

<B8 473

Hartung v. The People, 88 N. Y., 95. . 113, 202

Harvey v. The State, 40 Ind., 516 108

Ilassall, Reg. v., L. & C, 68 604

Hatch V. State, 8 Tex. Ct. App., 410 ... . 530

Haughton, Queen v., 1 El. & Bl., 601 .. . 413

Hawei, Com. v., 13 Bush, 700. 807, j»)

PAQB.

Hawkins, Com. v., 3 Gray (Mass.), 463. . . 367

Hayden, State v., 45 Iowa, 11 84, 388

Hayes, The State v., 78 Mo., 307 42

Hector V. State, 8 Mo , 160 4.33

Hemrick, State v., 62 Iowa, 414 85

Hendmarsh, Rox v., 8 Leach's C. C, 560 149

Henke, State v., 58 Iowa, 457 28

Hennessey, The People v., 15 Wend., 147 842

Henry, State v., 59 Iowa, 390 ... KO

Heskew v. The State, 14 Tex. App., OOO 444

Hester v. Com., 4 Norris, 139 187

Hlcklin, Regina v., L. R., 3 Q. B., 809. . . 455

Hicks, State v., 87 Mo., 588 398

Highland v. People, 1 Scam.', 393 558

Hildebrand v. People, 50 N. Y., 394 335

Hill, Com. v., 11 Cush., 137 80

Hill V. People, 10 Mich., 351 118, 588, 577

Ilillv. State, 43 Ala., 833 251

Hill, United States v., 1 Brock., 150 237

Hilliard, Com. v., 8 Gray, 294... 511

HiU'sCase, 2Gratt.,593 371

Hind, Reg. v., 8 Cox, O. C, .390 14

Hincr V. People, 34 111, 897 5.30

Hinson v. Lott, 8 Wall., 148 21

Hinson, Statev.,83N.C.,510 138

Kite V. State, 9 Yerger, a37 207

Hodgfc.- Rex v., 1 Moo. & M., 311 43

Hogg V. The State, 3 Blackf . (Ind.), 380 . . 175

Hogg V. Ward, 3 H. & N., 417 87

Holler V. State, 37 Ind., 57 490

Holliday v. The People, 4 Oilm., 113. .. . 330

Hollis, Reg. V. , 13 Cox, C. C. , 4ft3 10

Holmes v. State, 83 Ala., 24 607

Holmes, Reg. v., Cox, C. C, 216 273

Hopps V. The People, 31 111., .385 57

Horning, State v. , 49 Iowa, 158 87

Ilonisby, State v., 8 R., 651 47

Hough, Rex v., Russ. & R. C. C, 120 83

Howell, The United States v., 11 Wall.,

4')2 s;47

Howell's Case, 26 Gratt., 995 371

Hoyt, State v., 40 Conn., .339 ,394

Hughes, People v., 41 Cal., 230 3;18

Hughes, The State v., 4 Iowa, 554 113

Hughes, The State v., 58 Iowa, 1(13 71

Hughes, The State v., 71 Mo., 0;W 578

Hughes, Regina v., 1 Ci r. & Kir., 619. .. . 473

Hughes, Reg. v., 9 C. & P., 758 533

Hughes, Rex v.. 1 Moody, 370 171

Huguefs Case, 29 L. T. (N. S.), 41 . . . .589, 590

Humphrey v. Whittcn, 17 Ala., .30 409

Hunter v. State, 40 N. J., .ViS lac

Hurd, Com. v., 133 Mass., 433 825

Ilurtado v. California, 110 U. S., 510. .118, 184,

801

Ingall V. state, 48 Wis. , 047 8S

Ingalls, State v., 59 N. H., 88 808

Isaacs, Reg. v., 9 Cox, C. C, 238

iBham, United States v., 17 WoU,, 400. . . 28T

TABLE OF CASES CITED.

Xlll

PAQB.

367

338

433

143

543

330

441

187

455

. . .

393

558

. . •

335

• • •

588

,577

251

387

511

• • •

871

• ■ •

• . •

550

138

207

0..

175

498

507

> • •

373

, ,

xll.,

S47

394

• • • •

3:)a

. . . .

113

578

. . ..

473

• • • •

633

171

.580

,500

409

. . .

156

• • • •

333

.U8

184,

«M

. .. .

SOS

• • • •

8...

28T

?AOE.

Jackson, Com. v., 133 Mass., 16 15

Jackson v. State 570, 578

Jacobs, State v., 5 N. C. Bep., a>9.. ...... la")

Jacobs and others v. Com., 8 Leigh, 709. 146

Jamison, The State v., 37 Ark., 445 S3a

J'Anson v. Stuart, 1 T. R., 748 445

Jarvis, The Quec. v., L. R., 1 C. C, 90. . 433

J. B., State v., Tyler (Vt.), 309 478

Jennings, Com. v., 131 Mass., 47 69

Jensen v. The State, 60 Wis., 577 109

Joe Allen, The Town of Madison v 471

Joel V. State, 2S Tex., 013 392

Johnson v. State, 47 Ala., 9 l.M

Johnson v. State, 38 Ark., 343 336

Johnson, State v., 3 Harrington (Del.),

601 ;«0, 555

Johnson, State v., 40 Conn., 138, and 41

id.,!>»l 367

■Johnson, State v., 67 N. C, 59 568

Johnson, State v., 13 Nev., 131 131

Johnson, State v. , 7 Blackf., 49 . 407

Johnson, The State v. , 49 Iowa, 139 175

Johnson v. State, 1 Tex. App., 3.33 131

Johnson v. The State, 08 Ga., 399 580

Johnson, State v., U Ohio St., 334 178

Johnson's Case, ante, p. 131 391

Johnston, State v., 30 Ann., 901 40

Jones' Case, 1 Leigh, 598, 611 371, 373

Jones, Com. v., 1 Leigh, 010 393

Jones V. Com., 75 Pa. St., 403 3(17

Jonc-8, People v., 31 Mich., 815 300

Jones V. Bobbins, 8 Gray. 389 301

Jones, State v., 30 Mo., 53 398

Jones V. State, Parker, 1 85 . . . »>

Jones V. The State, 15 Ark.. 881 31

Jordan v. Osgood, 109 Mass., 457 191

Jordan v. Overseers of Dayton, 4 Ohio,

'-9.-1 30

Jordan v. State, 31 Miss., 3S3 43:j

Jukes, Rex v., 8 T. R., 538 178

Kalnv. The State, 8 Ohio St., 330 393

Kano, State v., 33 Ann., 999 44

Karstendick, Ex parte, 93 U. S., 3:M5 . . . . 381

Kate Marsh, State v., ante 3ri0

Kaufntan, Slate v., 51 Iowa, 578 118, 57'H

Kearley, State v., 80 Kan., 87 531

Keeler, State v., 38 Iowa, 551 141

Kelly V. Com.. 1 Grant, 484 387, 393

Keenan v. Com., 44 Pa. St., 55 .387

Keener v. SUite, 18 Ga., 191 394, 4».'>

Knanedy v. People, 39 N. Y., 315 550

Kenney et al., The People ex rol. v., 00

N. Y.,'394 115

Kent, State v., 33 Minn., 41 178

Kibs V. The People, HI HI., ,599 177, 3J7

Kimball, Com. v., 31 Pick., S.'iO 114

King, Com. v., 3 Va. Cas., 78 303

PAGE.

King V. People, 83 N. Y., 587. 445

King V. Ford, Yelv., 99 280

Kingen V. State, 4(i Ind., i3i 311

King's Case and note, 3 Va. Cas., 84.. 371

Kirby v. Com., 77Va., 081 150

Kirk V. State, 1 Cold w., 31.5 107

Kirkham, State v., 1 Ired., 384 483

Kite V. Com., 11 Mete, 685 509

Klinck V. Colby, 40 N. Y., 437 523

Knight V. Morse, 51 Vt., 43i OH

Kramer v. Com., 87 Pa. St., 899 83

Kramer v. State, 01 Miss., 158 we, 433

Kribs V. People, 83 III., 435 838

Kring V. Missouri, 107 U. S., 321 439

Ladd, State v., 32 N. H., 110. 319

Lamb, People v., 3 Keyes, 480 513

Landis v. The State, 70 Ga., 051 35

Lane, State v., 78 N. C, 517 33, 138

Lang, State v., C3 Me., 315 413

Lange, Ex parte, 18 Wall., 103 353,383

Langston, State v., 88 N. C, 093 450

Larkin, State v., 11 Nev., 314 378

Larned v. Com., 18 Mete., 240 It

Lrfiwrence, United States v., 13 Blatchf.,

335 205, 210

Lavey, Reg. v., 3 Car. & K., 20 475

Lawrence v. The State, 2 Tex. Ct. App.,

479 » 474

Leach, Rex v., 3 Stark., 70. , 175

League v. State, 38 Md., 3)7 113

Leoth, Com. v., 1 Va. Cases, 1.>1 509

Leavitt, State v., 33 Me., 183 413

Lederer v. Wagner 295

Leftwich V. Com., 20 Grattan, 710 479

Legg V. Drake, 1 Ohio St., 380 199

Levy V. People, 80 N. Y., 3J7 5:31

Lewis V. Chapman, 10 N. Y., 309 52:1

Likes V. Dike, 17 Ohio, ^Vl 53

Lincoln, Com. v., 11 Allen, 233 2:»

Lines, Reglna v. , 1 C. & K. , 393 .53 J

Little, State v., 1 N. H., '357 333

Locke V. State, 33 X. H., 100 349

Logg V. The People, 93 III., 598 403

Logue V. Com., 3S Penn. St., 205 5«)

Long V. State, 15 Ind., 183 531

Long V. State, 50 Ind., 183 .530

Lord Gortlon, Rex v„ 3 Doug., 591 3U8

Losee v. Losee, 3 Hill (N. Y.), 009 133

Love, State v., 21 W. Va., 783 110

Lovell, The State v., 23 Iowa. 301 37

Low's Case, 4 Me., 439 524

Lowenthal v. The People, 33 Ala., 5-(9. . . 389

Lowry v. McMillan, 8 Pa. St., 184 'JO

Lowry v. Polk Co.. 51 Iowa, 50 185

Lowry v. State, 18 I.*a (Tenn.), 113 l.W

Luning V. State of Wis., 1 Chand., 187. . 201

Lyon v. The People, 08 III., 271 318

Lyons et al. v. The People, 03 III., 271,

875 826,6.18

II i

XIV

AMERICAN CRIMINAL REPORTS.

PAGE.

Macino v. People, 19 N. Y., 137. 335

Maden v. Emmons, 83 Ind., asi 811

Mahler v. Transportation Co., 35 N. Y.,

353 853

Maine, State v., 37 Conn., 881 1 18

Mann, United States v., 1 Gallison, 3, 177. 8S7

Mansfreed, State v., 41 Mo., 470 670

Marigold, United States v., How., 500. 851

Marion v. State, ante, p. 319 188

Marshall v. The State, 19 Ohio St., 303. . 3>^>

Martin, State v., onte, 781 £31

Mash, Cora, v., 7 Met., 478 3)

Mason, Rex v., 1 Leach (4th ed.), 487. . . 415

Matt«r of Common, 47 Mich., 481 309

Maxwell, United States v., 3 Dillon, 875. 88r(

May, Rex v., 1 Doug., 193 414

May V. The People, 00 III., 119 58

Mayer, U. S. v., Deady, 13" 473

Mazou, State v., 90 N. C, C70 35

McCaller, Peoplo v., 8 Cal., .3ft} 517

McCarthy, Com. v., 119 Mass., .r<l 15, i:;o

McClear, State v., 11 Nev., 39 57H

McCoal V. Smith, 1 Black, U. S. R., 4.59. . 3 ):,

McCormick, The State v., 50 Iowa, rm.. 3.'9

Mccormick, The State v., 87 Iowa, 403. . UK

McCoy, State v., 14 N. II., Ul 175, 414

McCue V. Com., 78 Pa., 191 5(;8

Mcculloch V. The State, 48 Ind., 109 1 IS

McDonald, Peoplo v., 43 N. Y., 01 3.5

McDonald, State v., 35 Mo, 170 «9

McFarland, The State v., 49 Iowa, 99. . . . 3.9

McGhce, United States v., 1 Curtis, 1 . . . 40>

McGiue, United States v., 1 Curt., 1 307

Mclntyre v. The People, 33 III., 514 408

McKflte, Reg v., Law Rep., 1 C. C. R.,

185 CIO

McLeod, People v., 1 Hill, 430 507

McMath V. The State, 55 Ga., 303 303

McPherson v. State, 9 Yerg., 379 55ii

McPherson v. The State, 39 Ark., 835. ... 300

McPike, Com. v., 3 Cush., 181 201,413

Mead, Com. v., 18 Gray, 109 510

Mead, Rex v., 4 C. & P., 535 319

Medlicott, State v., 9 Kan., 257 487

Merkle v. The Stote, 87 Ala., 139 301

Merrill v. Nary, 10 Allen (Mass.), 410. . . 809
Merwin v. The People, 30 Mich., 298. .170, 403

Meyers, Ex parte, 44 Mo., 379 570

Middleton, Reg v., Law Rep., 3 C. C. R.,

38 010

Miles V. United States, 108 U. S., 801 70

Miller V. Allen, 11 Ind., 3^9 570

Miller, In re, S3 Fed. Rep., 33 310

Miller V. People, 89 111., 457 58, 433

Miller V. State, 40 Ala., M 4ia

Miller, United States v., 8 Hughes, 568. . . 888

Mills V. The State, 30 Ala., 80 851

Mills, The State v., 17 Mo., 811 gai

Milton V. State, 46 Ala., 50 889

PAOB.

MinaQueenv. Hepburn, 7 Cranch, 390.. 483

Mitchell V. Milholland, 100 III., 17.5 403

Mitvhell V. State, 5 Yerger (Tcnn.), 310. . 393

Mockabee v. Com., 78 Kentucky 87

Moore v. Fowler, 1 Hemp., .53) 113

Moore, The Peoplo v., 16 Wend., 419. .. . 183

Morey, State v., 3 Wis., 494 177

Morgan v. Burr, 58 N. H., 470 414

Morris, Regina v., 9 C. & P., 317 849

Morrison v. State, 40 Ark. ,448 115

Moses V. State, 33 Ala., 431 1.50

Moss, State v., 8 Jones, 00 Ill

Moye V. The State, 05 Oa., 754 *'5

Mulholland. Stote v., 10 Ann., 377 808

Mullany, Reg. v., Leigh & C, 593 470

Mullen, The State v., 35 Iowa, 109 251

Munn V. Illinois, 04 U. 8., 115 118

Munster v. Lamb, 83 Am. Law Reg. (N.

S.),88 583

Murphy, The Com. v., 1 Mete. (Ky.), 305. 578

iHurpliy, State v., 3 Dutcher, 113 8

Murphy. Peoplo v., 45 Cal., 137, 143 . . .131, 377

Murphy v. The People, 37 III., 447 1,50

Murphy's Case, S3 Oratt., 973 374

Murray, People v., 10 Cal., .303 370

Murry, Com. v., 8 Ashmead (Pa.), 41 ... . 393
Murray's Lessee v. Iloboken Land Co.,

18 How., 373 117

Mycock, Regina v., IS Cox, C. C, 88 5

Neale. Reg. v., 1 C. & K., 591 414

Neitzel v. Concordia, 1 1 Kan., 400 4 18

Nelson v. State, 1 Tex. Ct. App., 551) . . . 3!t3

Nettleton, Rex v., 1 Moody, S59 175

Nevens, Peopla v., 1 Hill (N. Y.), 151. . . . S^4

Newcomb v. State, 37 Miss., 400 513

Nol)le V. The State, Hi Ohio St., 5 11 873

Northrup, State v., 4< Iowa, 5!-3 87

Nott, Com. v., 1.35 Mass., 378 43)

Nye, Ex parte, 8 Can , lOl) 447

O'Brien, State v., 7 R. I., a38 190

O'Connell v. The Queen, 11 CI. & F., 1.16,

?• 838 6.>-3, 685

O'Connor v. The Stote, 01 Go., 185 .37

Oddy, Reg. v., 6 Cox's C. C, 810 lui

Okely, Bank of Columbia v., 4 Wheat.,

»« 118

Olllier, Regina v., 10 Cox, C. C, 403 6

ONcll, Peoplo v., 4S Cal., 8,58 .. . 678

Ortwein v. Com., 70 Pa. St., 414 515

Osborn v. State, 84 Ark., 089 100

Osljorn V. United States, 91 U. S,, 474. . . . 401

Ostraiider, The Stole v., 18 lowo, 435 .. . 119

Owens, State v., 10 Rich. (S. C), 100 175

Palmer v. People, 10 Wend., 106 883

Palmer v. The State, 39 Ohio St., 830 ... . 85

TABLE OF CASES CITED.

PAOK.

I.. 423

.. 409

.. 303

.. 87

.. 113

.. 133

.. 177

.. 414

.. 310

.. 115

.. ISO

.. Ill

.. 4H5

.. aw

.. 470
.. 8M
... 118

;n.
. . . r,83

85. 678
8
,131,377
. . . iriO
. . . 374
... 370
. . . 39i

;o.,

... 117
5

414

448
31hi
175
S+J
513
S?J
27
4:)J
447

lUl

118
S
678
515
100
401
llii
175

833
SB

PAOE.

Parks, Ex parte, 03 U.S., 18 883

rarineleo, State v., 9 Conn., 858 413

Pattoi-son V. Kentucky, 07 U. S., GDI 20

Pattci-son V. People, 40 Barb. , 035 507

Pattfrson v. State, 70 Intl. , 341 311

Patza, State v., 3 Ann., 512 208

Paul V. Detroit, 32 Mich. , 108 107

Payne v. The People, Johns. ,103 310

PcaboJy, People v., 85 Wend., 478 818

Peats cose, 1 Kast, P. C. , 389 103

Peirce, State v., 43 N. II., 270 415

Pendock v. McKinder, Willes, 005 2S)

Pennoyer v. Neff, 05 U. S., 714 184

People V. City of Rochester, 50 N. Y.,

585 113

I'erry et al. v. The People, 14 111., 40G . . . 03

Petit, United States v., 11 Fed. Rep., 58. 288

Petty, In re, 28 Kan., 477 447

Petty V. County Court, 45 Cal., 840 838

I'cvcn'lly V. People. 3 Park., 50 43

Pfifer, StJite v.. <m N. C, 3.'1 835

Phelps, i-'tate v., 11 Vt., 110 105,433

Phillips. E.\ parte, 7 Kan., 18 447

Phipoe's Case, 8 Leach, 7i3 5.")0

Pif^inan v. State of Ohio, 14 Ohio, 555.. 3(i7

Pike, State v., 40 N. H., 408 400

Pippi'tt, Rex v., 1 T. R., 235 414

Pirtlc V. State, 9 Humph. (1 Tenn.), 00:3.. 3117

Pitman v. State, 28 Ark., iW 513

Pollard, State v., 83 N. C, 507 , 138

Poison, The State v., 89 Iowa, 133 118

Porter v. State, .'i5 Ala., 95 433

Poteet, suite v., 80 N. C, 018 488

Potter, People v., 5 Mich., 1 3!>8

Potter, State v. , 15 Kan . . 3.)2 3(iS

Pow V. Bcckner et al., 3 Ind., 475 37

I'owell V. Stati>, 10 Ala., 577 518

Powell , State v. , 80 N. C. , (ilO 13^

Pratt V. Price, 1 1 Wend., 187 407

Price, Com. v., 10 (iray, 478 88

Price, Reg. v., 13 Q. U.' D., 317 605, .590

Prichett V. State, 88 Ala.. 39 511

Priddle, The King v., 1 Leach (4th ed.),

448 285

Prince v. Same, 7 A. & E., 027 13

Piitchard, State v., 15 Nev., 79 370

Pryor's Cas»', 87 Oratt., 1010 370

Queen's Case, 3 B. & B., 397 13

Quinn V. Ilalbert, 52 Vt., 305 528

Rafferty v. The People, 00 111., 134 408

Railroad v. The State, 3.' N. H., 815 13:)

Redlnger, The People v., 55 Cal., 290. .. . 470

Reed v. The State, 8 Ind., 201) 200

Reed. State v.. 47 N. II., 400 510

Ri'ed, State v., 08 Iowa, 40 3 >

Reeve, The Queen v., L. R, 1 C. C, 308 . 4!J3

PAOE.

Reeve, Reg. v., Lond. Leg. Obs. (Feb.

li>, 1845), p. 312 300

Reid, The State v., 80 Iowa, 413 118

Reley v. Stote, 9 Humph. (Tenn.), 040. . . SJ8
Rex V. Justices of Kent, 11 East, 889. .500, 59V

Reynolds, People v., 10 Cal., 138 545

Richmond v. Stat», ante, 388 S3

Richmond v. State (S. C, 80 N. W. Rep.,

888) 93

Ridley and Johnson, The State v., 48

Iowa, 370 33 >

Ridley, State v., 48 Iowa, 370 »4

Rivers, The State v., 58 Iowa, 108 4J8

Robinson v. Robinson & Lane, 1 Sw. &

Tr., 308 58;), 684

Robinson, State v., 14 Minn., 447 108

Robinson, State v. , 40 Me. , 285 113

Roby, Com. v., 12 Pick., 490 344

Rockwood's Case, 13 How. St. Tr., 139.. 381

Roe V. Taylor, 45 III, 4*5 400

RoRcrs, People v., 18 N. Y., 9. 307, 408

Rogier, Rex v., 1 B & C, aW 445

Rohtrischt, State v., 12 Ann., 383 398

Rosenburgh, U. S. v., 7 Wall., 580 477

Ross' Case, 2 Pick., 105, 178 113

Ross V. Irving, 14111., 171 107

ROS.S, State v., 81 Iowa, 4(i7 817

Ross, The SUUe v., 8 Dutchor (N. J.I, 22.4 52

Koth, The State v., 17 Iowa, SUn 30

Rouch V. Zehring, P. F. Smith, 74 388

Rowe, The People v., 4 Parker's Cr. Rep.,

853 217

Rowland, Ex parte, 104 U. S., 004 853

Ruby, Com. v., 12 Pick., 400 88

Runyan v. Price et al., 15 Ohio St., 1 ... 133

Rutherford v. Morris, 77 III., 307 400

Rj-au & Jones, The State v., 4 McCord

(P.C), 10 175

Sanabrla v. People, 24 Hun, 270 343

Sanders, State v.. ») Iowa, m^i 2«

Sanford, People v., 13 Cal., 80 388

Sartor, The State v., 8 Strobh., (10 201

Sawyer v. People, 3 Gilni., SVi 558

Sawyer, State v., 50 N. II., 175 ICO

Seaife, Reg. v.. 17 Q, B. Div., 888 38

Schuler, People v., 88 Cal., 400 515

6ch»i-eiter, State v., 87 Kan., 409 490

Schwuchow V. Chicago, 08 HI., 444 808

Scott, Com. v., 183 Mass., 833 620, 531

Scott, Ex parte, 9 Bam. & Cress., 440. . . 218

Scott, The Territory v., 2 Dak., 218 278

Scott, State v., 4 Ired., 400 507

Serafford, In re, 81 Kan., 735 447

Scribes v. Beach. 4 Denio, 448 58

Scroggins. People v., 37 Cal., 083 513

Scroggins, Peupl' v., 37 Cal., 070 400

Seeley v. Engell, 13 N. Y., 543 4

Shadd, State v., 80 Mo., 338 178

XVI

AHIERICAN CRIMINAL REPORTS.

FAOE.

Sheldon v. Newton, 3 Ohio St., 480 3J-'

Shepaid, State v., 7 Conn., 54 413

Shopard v. The People, 2.> N. Y., 400 . . . . 2C3
Shepard, United States v., 1 Abbott (U.

S.), Wl 2S«

Sherman v. Com., 14 Grattan, «r7 47!)

Sherman, People v., 10 Wend., S99 38!)

Shines v. State, 43 Miss., &3t 55li

Sholler v. State, 37 Ind., 01 513

ihorter v. People, 3 Conist., 197 507

ihortpr V. State. (13 Ala., 13!) 151

iiebold. Ex parte, 1()0 U. S., 371 SWJ

liimmerman v. State, 14 Neb., 508 fti

Himmons v. State, 01 Miss., 3-13 43J

Simmons, United States v., 00 U. S.,300 SKI

Simms, State v., 71 Mo., .WS 1)0

Bloan, State v., 47 Mo., 013 507

Smart, Com. v., Gray, 15 177

Smith V. Biinis, Johns., 198 :«.'

Smith, City of St. Louis v., 3 Mo., 113. 3)3

Smith, Regina v., 33 Eng. L. & £<!., 507. 03

Smith, Rex v., 3 Douff., 441 .597

Smith, Rex v., 1 Moody, C. C, 2S9 <m

Smitli, Rex v.. Russ. f: R., 307, 510. . . .171, 177

Smith, People v., Mich., 1!)3 113

Smith, People v., 57 Barb., 40 414

Smith V. State, 10 Ind.. 100 433

Smith. State v.. Bailey's iS. C.i I..a\v

Rep.. 3HI. and note 319

Smith, State v., 43 Vt., 3'4 4l:i

Smith. State v.. 49 Conn.. 370 l.V)

Smitli V. The State, ») Ind.. l.")9 170

Smith V. The State. 01 (ia., Ui.) 100

Smith V. Tlie State ot Maryland, 18

How.. 70 I'M

Smith V. United States, 94 U. S., 97. . . . 47!)

Snow. State v.. 3 R. I., 04 n (

Snj-der. State v.. .50 X. H., 1.50 .n;)

Snyd r. United States v.. 113 U. S., 310. . SHI

Solgard. Rex v.. 3 Str., 1097 ,59T

Spears v. State. 3 Ohio St., .5*3 .m

Spencer. Rex v.. Rush. & R., 510 in

Spencer's Case 3:) i

Squire, Com. v., 1 Met., SW 41:)

Stacy V. Graham, 1 1 N. Y., 493 131)

Standeld v. The State, 43 Tex., 107 51

Staidey, State v.. 04 Jte.. 157 •,';!,-)

Starr. State v., 3H Mo., 370 ;;,) >

Stanp V. Com.,74 Pa. St., 1.5H ,'•,4.-,

SterllUK V. Sterling. 41 Vt.. HO «;

Stewart. People v., 7 Cal., 140 37;

Stewart v. People. Sup. Ct. .Allch., 3 \.

W. Rep., mm (,.

Stinson V. The People, 43 111.. 397 .30,-,

St. Jliohnels, Rex v., 3 BlaeU., 719 ,570

Stocking V. State, 7 Indiana, 3;1) 141

Stokes V. State, 8J Amer. Rep., 73 ir-,

Stokes V. People of New York, .53 N. Y.,

''■'* 405,.513

StoUer, State v., 38 Iowa, 331 177

PAOE.

Stone V. Segtir, 11 Allen, 508 ,540

Stone V. State, 30 Ind., 115 HO

Stone V. Stone and Appleton, 3 Sw. &

Tr.. flOS 584

Stone, The TeiTitory v., 3 Dak., 1.55 445

Stoudenmeier v. Williamson, 39 Ma.,

.5,58 19.3,301

Straw, State v., .3.') Me., 5,54 5H

Strong, People v., 3) Cal., 151 515

Sturdivant, Com. v., 117 Mns.H., 1.39 197

Sturge V. Buchanan, 10 A. & E., .5!)S-Ca5. 13

Sullivan, People v., 3 Seld., 400 .507

Sullivan, South & North Ala. R. R. v.,

.5!) Ala., 373 230

Sullivan v. The State, .30 Ark., 04 104

Swain v. Cheney, 41 N. H., Sir. 349

Swan V. State, 4 Humph. (Tenn.), 1.30. . . HK

.swarth v. Kimball, ■Hi Mich., 143 100

Sweeney v. Baker, 13 W. Va., 100 53:J

Taleaferro v. Com., 77 Va., 411 Si

Taylor, Com. v., 10 Gray, 1!K) 43:1

Taylor, People v., .5!) Cal., (i40 19!)

Taylor v. Porter, 4 Hill, 14.5, 149 118, 119

Taylor, Reg. v., 13 Cox's C. C, 77 1!H1

Taylor, State v., 58 N. II., 331 39

Taylor, United States v., 3 McCrary,

.■>oo lis

Thayer, Pei pie v., 1 Parker, Cr. R., .595. 517

Thayer v. Thayer. 101 Mass., Ill Hi

The State Freight Tax Case, 15 Wall.,

333 S3

Thody's Case, 14 II<'n. 0, 3.5 b .581

Thomas v. State, 5 How. (Mi.ss), S;) 5:0

Thomjjson, Reg. v., 10 Q. B., Kji .. .5S.3, .581,

585
Thompson, Reg. v.. Law Rep., 1 C. C. R.,

377 (liH

ThiMiipson v. State. 10 Ind., 510 S;i7

Thompson. Stat<! v,. 13 Nev., 140 3;(l

Thompson v. The State, .37 Ark.. 408, .. . 378

Thorn v. Insurance Co.. Hi) Pa. St., 15. 70

Toler V. State, 10 Ohio St., .583 3.-,

Tompson, Com. v.. 3''u»h.. R.''-; HO

Townsciid v. The People, 3 Scam., 3.'9. 33«

Tralnor, Corn, v., 133 Moss., 415 .3,35

Twitchell v. Com., 7 Wall., 331 133

Tyler, People v., 3'i Cal., 533 530

Tyra v. Same, 3 Jletc., 1 57H

tr.

Udderzook v. The Com., 26 Pa, St,

3'" 143

United States v. Canada 477

United States v. Case of Ilair Pencils,

1 Paine, 400 305

Utioy V, Merrick, 11 Met,, 303 285

■I

TABLE OF CASES CITED.

XVU

,301
5.VI
515

507

250

104

31!)

3<.r

lOli

5*1

4;»

io»

i, 119
l!Nl
30

113
517

.Wl

5-«

I, 5HI,

5S5

(!;W

air
:m

TO
.35

138
530
5ffl

PAGE.

Von Buri'n v. State. 34 Jliss., 513 4.33

Vnno.', rei)i)le v., 31 Cal., 400 370

Viiiulenuui'k ct ul. v. The reople, 47 111.,

133 01

Vumieipool, State v., 1« Vol. C. L. N., 34 330
Van Dyke v. Thompson, 1 Hi'.rrlngton

R., 10!) 1.33

Vasquez, Pc'ople v., 4!) Cal., 5(K) 377

Vuux's Case, I't. 4, Co. 4,5U, Coin. Dig.,

Indict. L 343

Virginia, Ex iinrtc, loo U. S., 31(1 117

Volnier, City of Eniituria v., 13 Kan.,

032. 44!)

Woildell, United States v., 113 U. S., 70. •»<!)

Wade, Com. v., 17 rick., 3;»5 315

Wade V. DeWitt, 30 Te.\Hs, 4i)l 300

Waki'lield. Ke.\ v., 3 I.ewi.i, C. C, 379. . . 4

Walker v. Sa\ivinet, 93 U. S.. 90 119

Walker, State v.. 31 Vt.. VM. im 10.5, 4.'{3

Walker v. Tlie State, 8 Inil , 390 (i3

Wallaee v. Has.sett, 41 Barb.. !)3 3 i5

Waller, United States v., 1 Sawyer, 701. 287
Walsli V. United States, 3 Woodb. &

Minn., 341 887

Ward V, Farwell, 97 111.. .■)!)3 107

Wanl. Suite v., 49 Coiui., 439 513

Warner, Ke.x v., 3 Kiiss. on Crimes

(Sluirswood's ed.). 43i 438

Wuslilmrn V. Cuddiliy, K (iray, 431 I!)7

WasliinKton, State v., 1 Bay, 155 .507

Walkins, Kx parU', 3 Pet., I!t3 3H:i

Watts. Uniti'd States v., 8 Sawyer. 370 317

Watts, United States v., 14 Ked. Uep., 130 390

Webb V. Tlie State, 8 Te.\. Ct. App., 310 175

Webber v. VirKinia, 10:1 U. S., 314 30

Webster Ca>. v. Hntehinson, 9 N. W.

Rep.,lM)l lUI

Webster, Com. v., 5 Cnshinff, 397, 310. 1 II. 515

Webster, HeK. v., I) Cox, C. C, 13 170

Welburne, State v., 7 .lere Baxter, 57. . . 103

Welsli et al. V. The People, 17 III., .'W9. . 335

Welton V. Slate, 1 Otto, 375 :i50

Wesley v. The State, 01 Ala., 383 349

West V. State, 3 Zabr , 313 5ii7

Westervelt v.dri'gK, 13 N. Y.. 303 118

Weyrieh v. Tlie People, 89 111., 00 107

Wheeler v. State, 34 Wis., .53 lOfi

Whiteoml), The Slate v., 53 Iowa, m. . . ,30

White V. Nieholls, 44 U. S. (3 How.), 31)0 .533

Wliite, Uex v., 8 Car. & P., 743 175

White V. State, 1 S. & M., 149 407

Whiteford's Case, « Rand., 731 371

Whitehead, Reg. v., 8 Car. & Payne, 338 473

PAGE.

White's Case, 52 Miss., 210 8.53

Whitlield, State v., 70 N. C, 3.')» 4;«

Whitson, People e.\ rel. v.. 71 111., 20... 804

WiKKins V. The People, 93 U. S., 405. . . . 395

Williams, People v., 34 Jlieh., 1.50 177

Wilkes, Rex v., 4 Burr., 3.577 509

Wilkinson, Rex v., Russ. & Ry., 471.... .334

Williams, People v., 43 Cal., 311 307

Williams et al. v. The People, 101 111.,

3S3 143, 4;«, 511

Williams et al. v. The People, 41 III., 478 5.50
Williams, Rex v., Ro.seoc's Cr. Ev. (7th

Amer. ed.), 51 438

Williams v. State, 13 Ohio St., 03.'.. 113, .57.S

AVilliams and Avery, State v.. 07 N. C, 13 150
Williamson, State v., 1 Iloust. Crlni. C,

1.55 335

Willshire, llej;. v., 14 Cox, C. C, .511 70

Willson, Com. v., 1 C.ray, im 197

Willson, State v., 3S Conn., 130 545

Wilson, Ex parte, ante, 38.3 508

Wilson. In re, 18 Fed, Rep.. .3:} 288

Wilson V. State, 10 Ark., COI 112

Wilson V. State, 24 Conn., .57 88

Wilson V. The Peojile, 91 111., 3))9 347

Wilson. The St^ite v., '^i Iowa, 314 89

Wilson, I'nitcd States v., 7 Peters, 150. . 462

Winder V. The State, 35 Ind.,231 175

Windham v. State, 30 Ala., 09 S.51

Winslow's Case. 10 Am. Law Rev., 017. . 207

Wish, State v.. 15 Neb., 4l:^ 138

Withers v. Hnekley and others, 30 How.,

iK) 138

Wixon, In re, 13 N(!V., 31!) 23S

Wood, Com. v., 11 (iray, 85 11

Woodruff v. Parham, 8 Wall.. 123 81

Woleott, People v., 51 Mieli., 013 4:1.3, 581

WriKht V. State, 5 Ind., 390 311

WriKht V. State, 7 Ind., 331 311

Wright's Case, 8:j ( i ratt. , 881 371

Wright's Case, 75 Va. R., 914 371

Wroe V. State, 30 Ohio St., 400 1.55

Wynian, Peoi)lo v., 15 Cal.. 70 520

Wynehanier v. The People, 13 \. Y., 433 118
Wynn, United States v., 3 McCrary,

800 288

YarbronRh, Ex porto, 110 U. H., 051 ..... 8KJ

Yates, United States v., Fed. Rep., 801 288

Yeo V. People, 49 111., 413 198

York, Slate v., .37 N. 11., 175 4.3:1

Younpf v. Martin, 8 Wall., .3.5-1 ,307

Zabriskio v. State, 14 Vroom, 040 370

.305

AMERICAN

CRIMINAL REPORTS.

State v. Gordon.

(46 N. J., 433.)

Abduction: Jurisdiction— Witness.

1. Person abducted competent ■vvitness for state. — On trial of an in-
dictment for unlawfully convoying or taking away a woman child under
the age of fifteen years, with intent to seduce, etc., under section 83 of
the crimes act, she is a competent witness to testify on behalf of the
state.

3. Jurisdiction op offense. — If the defendant brought her witliin this
state from another, and here, with the intent set out in the statute, in-
terposed his will or persuasion between her and her guardian's control,
so as to overcome her intention to return to her home, the abduction is
accomplished, .and he may be indicted in this state.

On error to the Court of General Quarter Sessions of the
Peace of Hudson County.

Argued at June term, 1884, before Beasley, Chief Justice,
and Justices Depue, Scudder and Eeed.

For the state, C. II. Winfidd.

For the defendant, Puster, Daly <fh Ryerson.

The opinion of the court was delivered by

ScuDDKu, J, The defendant was indicted under section 82
of the act for the punishment of crimes, for the abduction and
seduction of a girl under the age of fifteen years. He Avas
found guilty and sentenced to the state prison for the term of
five years. Many objections were taken at the trial to the
admissions of testimony, and requests to charge were made to
the trial judge, some of which Avere granted and others refused.
Two exceptions only Avere argued on the return to the writ of
Vol. IV— 1

AMERICAN CRIMINAL REPORTS.

error, the others having been abandoned. The first was an
exception to the admission of the witness A, R, tlie cliiUl in
question, on the part of the state, tagainst the defendant, because
she was alleged to be the wife of the defendant, and tlien fore
an incompetent witness. "When this objection was made by
the defendant's counsel the court directed that the witness be
examined on the voir dire as to the alleged marriage. She was
questioned as to the form of a marriage ceremony extracted in
part from the nuirriage service used in the I'rotcstant Episco-
pal Church, and said to have been repeated b}- the parties when
they were together, without any witness, in Brooklyn, Long
Island, state of Xew York, She denied that there was auv
such ceremony. She was shown a certificate in writing, signed
by her and the defendant, dated Xovember 2, l8s;{, which
stated that they had been married by repeating certain por-
tions of the Episcopal marriage service. She testified that
when she signed it he told her it was only a joke. Certain let-
ters wore shown her, Avhich she admitted had been written and
signed by her after Xovember 2, 1SS3, in which she addressed
him as her husband and called herself his wife. These, she said,
were addressed and signed in that way because he told her to do
so, and she had agreed and intended to marry him in the f(jllow-
iug rpring. On December 3, 1S83, she left her home in Astoria,
and went with him to the mavor's office in the citv of Xl ^v York
to be married, but the mayor declined to marry them because
of her youthful appearance. On the same day she went with
him to Jersey City, where she was introduced as his wife by
the defendant to friends of his residing there. She was silent
before them. They occupied the same bed-room at a hotel in
that city for a night, a day and part of the second niglit, wlien
the defendant was arrested on pursuit and comi)laint of her
ado])ted father, who had never given his consent to a mar-
riage between them. Her parents were both dead. It had alst»
been testified by her older sister that she was bom in October,
1800. and was under the age of fifteen years when the alleged
abduction took place. The defendant's counsel offered section
1 of the Xew York marriage act (R, S,, vol. Ill, p. 227), by
which marriage in that state is a civil contract, to whiclj
the consent of parties capable in law of contracting shall be
essential ; and also section 3 of the same act, making void a

sta

wit

ent

ye;

pai
otl

inc

STATE V. GORDON.

marriage Avhorc cither of the parties to a h^.arriage shall Le
incai)ablc, lor want of age and understanding, 01 consenting to
a marriage, etc., or when the consent of either pauy shall have
been obtained by force or fraud ; also sectirsn 20 of the New
York crimes act, making it criminal to take away any female
under the age of fourteen years from her father, mother,
guardian or other person, without their consent, either for the
purpose of prostitution, concubinage or marriage. After the
above examination the court allowed the witness to bo sworn
on the part of the state, and to this an exception Avas prayed,
allowed and sealed.

There was no error in the admission of this witness to testify.
If slie hid, in her examination, admitted that she was the wife
of the defendant, and that his allegations were true, a different
question might have arisen under the statutes of the state of
Kew Yoi'k, where it was claimed the ceremonj' of marriage
took place ; but she denied them, and whether they were mar-
ried or not was a disinited question in the cause. The court did
right, at that stage of the trial, in accepting her statements on
the voif dire for the purpose of allowing her to be sworn in
behalf of the state against the defendant. It Avould be a jxti-
tio princijyii to assume, on a bare allegation, that she was the
wife of the defendant, and therefoi'e disqualified to be a wit-
ness against him, when one of the questions at issue was
whether there was ever a valid marriage between them, lie
was undoubtedly a competent witness, by statute, to prove his
defense, and there was therefore the greater reason why the
state should not be deprived of her testimony. The contrary
rule would exclude the most important testimony on the jiart
of the state, and leave the defendant to prove his own case
without possibility of contradiction, when they only were pres-
ent, and artifice, constraint or force was used to extort apparent
consent to marriage from a mere child by the overpowering
will of a man so nmck older than she. He was forty-seven
veal's old.

It is only where there has been a valid marriage that the
parties are excluded from giving evidence for or against each
other by the common law. Ros. Crim. Ev., 124; 1 Greenl. Ev.,
§ 339; Whart. Crim. Ev., 390. It has therefore been held in
indictments for bigamy, after proof of the first marriage, that

AMERICAN CRIMINAL REPORTS.

the second woman married is a competent witness against her
husband, for the second marriage is void and she is no wife.
To test this competency the woman may be examined on the
voir dire as to this void marriage. Whart. Crim. Ev., §§ SOS-
SOT; 1 East, P. C, 4G0 ; Seelei/ v. Kiujell, 13 N. Y,, 542.

Courts have even gone further and lield that on the trial of
an indictment for the forcible abduction and man-Jigc of a
woman, under the statute prohibiting such marriage, she may
be a witness for the crown, and that this is not a case Avithin
the general law excluding tlio testimony of a wife against her
husband, for she is not legally his wife, a contract of marriage,
like any other contract obtained by force, having no obligation
in laAV. Brown^s Case, Vent., 243 ; Fiilwoocrs Case, Cro. Car.,
483; liexv. Walcefield, 2 Lewin, C. C, 270; 1 Hale, P. C, 301;
2 Hawk. P. C, ch. 40, § 78; 2 Russ. Cr., 084.

Our statute enacts that every such marriage, as therein de-
scribed, of any woman child within the age of llftocn years
shall be void if tlic man contract matrimony with her without
the consent of her father, mother or guardian. In any view
that may be taken of the alleged contract of marriage and the
acts attending and following it, it is evident that there are
some facts to which slie must necessarily testify to prevent tliis
statute, intended for the protection of parents and their young
female children, from becoming useless. The court were right
in admitting the girl's testimony, and leaving its credibility to
the jury.

The second point of exception that was argued by counsel
was that the court charged in effect, among other tilings, that
if the jury found that the defendant brought the girl to Jersey
City, and there detained her either by force or by persuasion,
it was such an unlawful conveying and taking away within
this state as is contemplated by the statute. This infraction
was correct. A girl, within the protection of the statute, is in
the possession, custody or governance of her parent or guard-
ian though she be not in the same house with them. If
not in their actual i)ossession when in the street, in school
or in some place of public resort, or visiting in Jie house of
friends, slie is so constructively. She is still in their custody for
care, keeping and security, and unde.' Iheir governance, for
they may control her will by their conanand. If she go upon

STATE V. OORDON.

i:-y

;
\

a journey, they may follow her and <lirect her return to them.
The mere fact that she entered anothcu' state does not alter
her relations or obligations with her [Kirents or guardian.
Whenever the defendant, with the intent set out in the statute,
interjjosed his will or persuasion between her aiul her guard-
ian's control, so as to overcome her purpose and intention to
return to her home, the abduction is accomplished. Xor can
her willingness to come to this state Avith him take away his
offense, for, by our statute, he can give no consent, and when-
ever she intends to return to her guardian, he may not dissuade
or oi)))oso her. In this sense I understand the words used by
the court in Eef/lna v. Mi/coak, 12 Cox, C. C, 28, where it is
said that a girl who is away from her homo is still in the cus-
tody or possession of her father if she has the intention of
returning to him. Earon J'ramwcll, in liiijhia v. (Jlijier, 10
Cox, C. C, 402, says: " If, finding she lias left her home, ho
[the defendant] avails himself of that to induce her to continue
av.ay from her father's custody, in my judgment he is guilty if
his i)ersuasion operated on her miiul so as to induce her to
leave." Nothing can be i>l:!iner in this case than that his per-
suasion induced her to leave her home in Astoria and come
with him to Jersey City, and wIkmi there, after, as she testifies,
he had read to her the account in the papers of her elopement
with him, she wished to return to her lionie, ho sought, by ])er-
suasion, to keep her, and opposed her expressed wishes to go
back. The mere fact of her leaving her guardian's homo and
coming to this state with the defendant might not complete
the crime with which he was charged, but when tho intent was
here manifested to seduce or contract matrimony with her by
proclaiming her as his wife in the presence of his friends, and
keei)ing her a day and night in a sh^jping room at a hotel, and
oi)p(».sing her wish to return home, he became amenable to the
pimisliment allixed by our law to this statutory crime. These
facts, which appear in tho case, if found by the jury, Avould
constitute the crime of abduction within this state, and there
was no error in tho direction of the court.
The judgment is affirmed.

AMERICAN CBIMINAL REPORTS.

State v. Gedicke.

(43 N. J., 80.)

Abortion: Administering noxious drugs— Evidence — Indictment

1. Declakatioxs to rtivsiciAN ^oucmxo PREGNANCY.— Declarations made

to a physician of bodily feelings and symptoms of pregnancy at the
time of examination, are admissible in evidence as paii of the facts on
which his opinion is founded.

2. Same — Cross-examination.— A witness of the state, cross-examined as

to the declarations of the patient concerning her pregnancy, made to
him as a physician during his examination of her condition, cannot
be re-examined as to other unconnected assertions in the same conver-
sation, charging the defendant with criminal acts to produce mis-
cr.rriage.

8. Noxious nature of drugs.— The thing administered or prescribed to
procure the miscarriage of a woman then jiregnant with child (Crimes
Act, § 7"i) must be noxious in its nature; but it is not necessary to prove
that it will produce that effect.

4. Inok'tment, when objection must be taken to.— If the negative alle-
gation that the mother or child did not die, wliich lessens the jjunish-
ment under the statute, be necessary in the indictment, section 53 of
the criminal procedure act requires that any objection to the oiuLssion
tihall be taken before the jury is sworn, and it is then amendable.

Oil error to the Quiirter Sessions of the County of Essex.
Aririicd at November Term, 1880, before Justices JJcpuo,
Scudder and Knapp.

Tor the defendant, J. Franh Fort and 8. KallKoh.
Vi)Y the state, G. iY. Alcel and E. F. Siodion, J)\

The opinion of the court was delivered by

ScuoDER, J. The indictment in this case, found under kpc-
tion 75 of the act for tlie punishment of crimes, ('har;.'-es that
the defendant did, maliciously and without lawful jiistilieulion,
administer, prescribe for, advise and direct one S. S., then and
there being pregnant with child, to take and swallow eei-tain
pjisons, drugs, medicines and noxious things, witli intent tlien
and tlierc to cause and procure the miscarriage of the said S.
S., contrary to the form of the statute, etc.

The second count charges the use of certain instruments and
means, with like averments of intent.

The defendant was found guilty, and judgment and sentence
were pronounced. Error has been assigned, founded on admis-

STATE V. GEDICKE. f

sions of evidence, exceptions to the charge of the court, and
on the record.

Tlie fust exception is to allowing Dr. Bleye, a consulting
pliysician, who was called in by her father, to testify how he
I examined the complaining Avitness, S. S,, to ascertain her preg-

1 nancy, and to relate what she said to him. These declarations

i were made by her to the physician at the time ho was called

I upon as an expert to determine the state of her health, and were

? statements of her bodily feelings, and the symptoms of her

I supposed pregnancy. This evidence was admissible. It is an

I exception to the usual rule excluding hearsay evidence, and it

I is foimded on the necessity of learning from the patient herself

facts within her own knowledge, Avhich the physician should
Icnow to f(jrm an intelligent and accurate opinion of her present
health and situation. The usual symptoms of pregnancy in its
early stage must be obtained from the patient herself, such as
the ol)struction of tlie usual course of nature, morning sickness,
headache, nervousness, and other indications hidden from the
observation of otliers ; these, in connection with a physical ex-
amination of the ])arts of the body ordinarily affected by en-
largement ami other changes, are the facts on which the opinion
of the oxi)ert witness is founded. It is right that he should
have tliese facts and state them to the jury, that they may
f know wliether his conclusions arc careful, skilful and reliable.

; If tlie object of the examination is to care for her health, there

\ is tlic strongest inducement for her to speak the truth; if she

; i)e infhioiuMul by any other ccmsidei'ation, the jury must dcter-

:; mine the W(M<j:ht of tlir evidence, as in other cases. This was

i tlie kii\d of testimony received in this case, to which objection

I was nuide, and it was properly admitted. Bnrlcr v. 2fe)'rian,

] 1 Allen. M'i'i; Ihicon v. (J/i(ii'lton, 7 (hish., 581; Aveson v. Ktn-
na/fd,{'> Kast, ISS; 1 Greenl. Ev., 102; Wharton's Cr. Ev., 271.
It is fiu'tlier objected that there was error in the charge of
the court, " that it was not necessary that the medicine, drug
or noxious thing advised to be taken, administered to or pre-
scribed for her should be capable of lu'ocuring a miscarriage,
because that would be graduating the guilt of the defendant
by the success or failure of the attempt, wlien tlie statute
makes the attem])t a crime regardless of the success." The
collocation of the words in this statute retpiires that the thing

AMERICAN CRIMINAL REPORTS.

used to effect the miscarriage should be noxious — that is,
hurtful. The words " poison, drug, medicine or noxious thing,"
indicate the cliaracter of the means that must bo used. The
rule copulatlo verho?'um indicat acceptailoneni in eodem sensu,
and the maxim noscitur a socils (Broom's Maxims, ■'■^:>0), gov-
ern the construction of these words as they stand connected
in this statute. The poison, drug, medicine or other thing
must be noxious or hurtful; if it possesses this quality, and
is administered, prescribed, advised or directed to bo taken
with the intent to cause or procure a miscarriage when the
woman is then pregnant with child, the crime is complete,
wliether in the opinion of others it is capable of producing
that result or not. It is dangerous to the life and hcaltli of
the mother and to the existence of the child to experiment
with any drug, medicine or noxious thing to produce a miscar-
riage. Tlie ignorance of the operator may lead him to select
something tliat will not have the effect he designs; but, if it bo
noxious in any degi'ce, though in the judgment of others wlio
have greater Imowledge it cannot produce the effect intended,
it is witliin the statute. Tlie words defining the means to be
used were brought into our statutes by the act of ^^Farch 1,
1849. Pamph. L., p. 190. It Avas passed to remedy an ad-
Judged defect in our law, that to cause or procure abortion be-
fore the child is quick was not a criminal offense at common
law or by any statute of our state. State v. Cooper, 2 Zab., 52.
As soon as the question was raised and the doubt suggested,
this act was passed to punish the offense. The design of tho
statute was not so much to prevent the procuring of abortions,
however offensive these may be to morals and decency, as to
guard tlie health and life of the female against tlio conse-
quences of such attempts. The guilt of tho defendant is not
determined by the successor failure of tlie attenq)t; but tho
measure of his punishment is graduated by the fact Avhether
the woman lives or dies. /State v. Jliirplii/, 3 Dutclior, 112.

This law was further extended March 2(5, 1872 (ranq)h. L,,
p. 45, Rev., p. 240, § 75), to protect the life of the child also,
and inflict the same punishment, in case of its death, as if tho
mother should die. The statute of 1849 introduced tho words
" any poison, drug, medicine or noxious thing," and tUcy aro
still retained in that form.

thing a

STATE V. GEDICKE. 9

It n]')pears that they originated in the statute 9 Geo. IV.,
c. 31, § 13, where we find in the first clause, relating to pro-
curing the miscarriage of a Avoman quick with child, the
Avords " any poison or other noxious thing;" Avhile in the second
cUiuse, relating to miscarriage of a woman not quick with
child, tlic woi-ds "any medicine or other thing" are used. In
a later statute (2-lr and 25 Yic, c. 100, § 59), the Avords "any
poison or other noxious tiling" are used, Avhether the woman
be or be not quick Avith child, the intent to procure the mis-
carriage in its effects on the health of the Avoman being looked
upon as ih'i main element of the offense. This change from
"other thing" to "other noxious thing," in all cases is hn-
portant Avhen considering the proper construction of our OAvn
statute, Avhich so closely resembles it.

The Massachusetts statute referred to in one of the aboA'c
cited cases, as similar to ours, found in LaAvs of 18-15, ch. 27, uses
the same words. In General Laws, ch. 105, § 9, the terms are,
j " any poison, drug, medicine, or other noxious thing," the Avord

i "other" b.'ing put before "noxious," as in the latest EnglisK

^ statute, thereby changing the effect, so as to emphasize the rule

of construction before named. In an indictment under tlio
former act of 18-15, it AA'as held that it Avas not required that
the govevuMient should prove what the medicine Avas, or
,^ Avhcther it was such as Avould teiul to produce tiie effect in-

^ tended, or Avhether it Avas actually taken by the Avoman ; nor

l that the liquids and pills procured for her, and Avhlch slie avjij

a advised to take for the purpose of producing a miscarriage,

:; Avcro noxious things. The reasoning of the court is, that it

4 may well be that the legislature has tlioug])t fit to ])unlsh per-

sons for thus tampering with a wonum's health and life, though
they may be utterly mistaken as to the character and eU'ect of
the medicine; antl if it were necessary for the government to
prove the (juality of the medicine, It might often be difficult to
convict oU'enders Avho had used tlie most noxious drugs. This
is a very good reason for striking the AVord "noxious" out of
the statute, l)ut as long as it renuiins it must have a meaning,
and all'ect tlie constructi(ni of the act.

In 7Av/. r. Isaacs, 9 Cox, Cr. Cas., 228, the court says,
"The thing intended by the statute must bo noxious in its
nature;" and in Reg. v. Hannah, 13 Cox, Cr. Cas., 5-18, "the
thing administered must bo noxious in itself, and not merely

AMERICAN CRIMINAL REPORTS.

when taken in excess;" in Beg. v. BMeman, 12 Cox, Cr.
Cas., 4GT, BramwcU, B., said, during the argument: "A nox-
ious thing, Avithin the statute, moans a thing tliat >vill pro-
duce the effect mentioned in the statute; that is, a miscarriage.
This appears to have produced tliat effect." Tlic objection
to this doctrine in the last case is that the statute does not
say that tlie tiling administered nmst be such as will jh'o-
duce tlie miscarriage, but only that it shall be noxious; and it
was not called for in the case, for the thing used was clearly
noxious and produced the designed effect. Noxiousness may
be inferred from the effects. lierj. v. JfuUls, 12 Cox, Cr. Cas.,
403. But where the miscarriage is not produced the bui'den
must be on the prosecution to show that the thing used was
noxious in its character — notliing more. As a rule of evidence
this can make but little practical diiliculty, for, if pregnancy
be shown, as it must be, under the statute, and the person
charged, snj)posing it to exist, administers anything to effect
it, very slight proof of the character of the thing administered
will be required. Such things are usually known, or their
effects are apparent. In this case an unmarried woman went to
the defendant's drug-store to learn of him, as she says, Avhetlier
she was in the family-way, being Avell assured of the fact her-
self, for she further says, " I told him I wanted to see if I
could get clear of the child." He i)rescril)ed for her, or gave
her Dr. Clarke's female periodical i)ills. He had studied medi-
cine, and knew that the medicine given her was an emniena-
gogue. She gave him SIO, said she would probably come
again; did go afterwards, and he examined hei' with a catheter,
or something hke it, in a nuuiner dangerous to a woman in her
supposed condit'on, according to the testimony of [)liysic'ians
who were examined in the cause. These Avere her statements,
and they illustrate the kind of evidence that is commonly at-
tainable, even Avhen tlie miscarriage is not accom])lished, as it
Avas not in this case. But if the diiliculty of obtaining proof in
those c;;sos were greater, yet the statute will admit of no other
construction than that the thing administered must be noxious
or hurtful in some degree, though it does not require, by its
terms, that the thing should bo capable of producing a miscar-
riage. There was, therefore, no error in the refusal of the
judge to charge as rocpiostod.
In answer to the error assigned on the sufliciencv of the in-

STATE V. GEDICKE.

(lictment because it docs not state -whether the patient died or
not in consequence of the thing prescribed or the operation
porfornicd, tills is not necessary. The general rule is that
■\vlicro, by the statute, there is a gradation of offcusos of the
same species, as in the degrees of })unishinent annexed to the
offense, it is not required to set forth a negative allegation as
in tills case, that slie or the child did not die. It is no objec-
tion that it cluu'gcs the acts which constitute the minor offense
unaccompanied by any averment that the aggravating cir-
cumstances did not exist. In such cases the offense charged
is to be deemed the minor ofteiise and punishable as such.
O >iinn(»iic('<tlth V. Wood, 11 Gray, 85; Lamed v. Coininonwcalth,
VI :\Ietc., i24().

Ml'. IJisliop, in liis Statutory Crimes, § 107, says, although
the indictment must sot out every element of crime which
enters into the inmishment, since otherwise it does not set out
fully the offense, the true view as to this question of plead-
ing seems to liavo been expressed by Lord Dcnman thus: "It
i^ the oli'ense which is the subject of indictment and not the
punishment."

In State v. Dralce, 1 Yroom, 422, the Avoman died, and it "was
necessary to plead that fact in the indictment to reach the
greater crime and ])unishmont; in this case she did not die, nor
did the cliihl die, and the derendant, if guilty, Avould only bo
amenable to the lighter punishment. The indictment charges
him, in the words of the statute, with attempting to procure a
miscarriage, and it is allicient without the negative averment
that he ilid not cause the death of the woman or child. Dut
if it wer(!i otherwise, and this exception were good, it comes
too l;it(^: for, by section 53 of the criminal procedure act, every
objection to any indictment for any defect of form or sub-
stance apparent on the face thei'oof, shall be taken by demurrer
or motion to (piash such indictment before the jury shall be
sworn, and not afterwards, and it is made amendable b}' the
court. This objection is but formal, it was amendable, and
was not taken in time.

Another error assigned is to the admission of the evidence
of Dr. Herman C. Bleye, in ])ermitting him to testify to a
conversation had on February 20, 1ST!*, with the complaining
witness, and in corroboration of her testimony, Avherein she

AMEKICAN CRIMINAL REPORTS.

stated to hun facts criminating the defendant. It is not
claimed on the part of the state that tliis evidence woukl have
been competent until it was made so by the course of exam-
ination and testimony offered by the defendant. The proof of
the defense was principally that given by the defendant him-
self, denying the pregnancy at the time alleged, his knowledge
of it, and the giving of medicine or the use of instruments to
produce miscarriage. Some additional proof Avas offered to
show that the woman's motive in asserting her pregnancy was
to bring about a marriage between her and her alleged seducer,
and that Dr. Bloye Avas brought in by the father to determine
her condition. During the cross-examination of some of the
defendant's witnesses there was a continued effort to get into
the case the declarations of S. S., to her fatlier and to Dr.
Bleye, as to her visits to Dr. Gedicke, and liis conduct to-
Avards her. Dr. Bleye AA'as called by the state in rebuttiil, and
asked concerning his examination of S. S., and tlie st;itcmcnts
she made to him of her symptoms and feelings. This was
objected to, but admitted, and legally admitted, as luis l)eou
aboA'e determined. This testimony Avas relevant on the ques-
tion wlietlier she Avas pregnant at the time it Avas said tlie de-
fendant prescribed for her. The Avitness Avas cross-examined
briefly and cautiously as to his iuA-estigation of the pregnancy,
and no further tlian he had gone in the chief examiiuition.
On the part of the state it Avas then claimed that, as tlie de-
fense had gone into the conversation between her and Dr.
Bleye about her pregnancy, all that she had said to him at
ll>r' time, including her statement of her visits to Dr. (iedieke,
/n-[y.g of medicine, and use of an instrument to procui'o
nn.. LiUi'c, Avas made competent, and that they were cut it led to
*tv \v\-;.; conversation. This evidence Avas finally admitted,
tlioiiri!. the defendant's counsel objected. Its purpose and
effect Avas to strengthen the evidence of the principtil Avitness
by her declarations to others of the guilty acts of the defeiul-
ant made several Aveeks after they Avere said to have occurred.
This is hearsay evidence in its most objectioiuible form. Ad-
mitting, as it is claimed by the prosecution, that ])arts of this
conversation concerning j)regnancy during the examination of
the physician to determine the fact, Avere introduced by tho
defense, and in the confused condition of the evidence sent up

STATE V. GEDICKE.

■with the hill of exceptions it is difficult to tell exactly how it
(lid come into the case, the cross-examination or re-examina-
tion would be limited to what she said to the physician con-
cernin;!^ licr feelings and symptoms of i>regnancy, Avliich was
the subject-matter of his inquiry a3 an expoi't, and could not
be extended to distinct charges of crime made against the de-
fendant when they were alone, and afterwards in the presence
of her father, concerning which the defendant's counsel had
aslcod no questions, and permitted no statement to be nuide.

In Prtnce v. Samo, 7 A. & E., 027, the court says that a wit-
ness of the plaintiff cross-examined as to declarations of the
plaintiff in a particular conversation cannot be re-examined as
to other unconnected assei'tions of the plaintiff in the samo
conversation, although connected with the subject of the suit.
It must not, therefore, be assumed that cross-examination in
part of a convei-sation necessarily lets in proof of the whole of
it. This case qualifies the language of the court in Queen's
Case, 2 B. & B., 297, where Abbott, C. J., says, " I think the
counsel has a right on re-examination to ask all questions
which may be proper to draw out an explanation of the sense
and menning of the expressions used by the witness on cross-
examination, if they are in themselves doubtful, and also of the
motive by Avhich the witness Avas induced to use tliose expres-
sions; but he has no right to go further and inti'oduco nuitter
new in itself, and not suited to the purpose of explaining either
the expressions or the motives of the witness. I dislinguish,"
he says, '' between a conversation with a party to a suit, crim-
inal or civil, and a conversation with a third person," "What
follows, as to conversation with a party to the suit, is qualified
by the case above cited. See, also, Sturge v. .Buclnnum, 10 A.
& E., 598-G05; 1 Taylor's Ev., 042; 1 Greenl. on Ev., § 407;
Whart. on Ev., § 572 ; Whart. Cr. ICv., § 493, n. 1.

This evidence of the charges nuule I)y S. S., in the conversa-
tion with Dr. Bleye, was illegal and manifcstl}' prejudiced the
defendant in maintaining his defense upon the merits. It was
corroborating the evidence of the principal witness on the part
of the state, by her own declarations made to another in the
absence of the defendant, on the main point in the case, where
she was the only witness. Her charge was met by the direct
denial of the defendant, and this evidence was forced in to

AJIERICAN CEBHNAL EEPORTS.

give the effect of a second witness sustaining her. ITowcvcr
reluctant the court may be in setting aside the verdict of a jury-
in a case like this, yet we feel bound to say, as Lord Dennian
once said to counsel who put in inadmissible testimony : " You
should have taken care not to put in bad evidence."

Other objections are not regaixled as having any iirportance.
The conviction of the defendant was under section 75 of tlio
act for the punishment of crimes, and not under section 193,
relating to attempts to commit crimes. The judgnient for
both fme and imprisonment was according to the statute, and
legal.

The punishment imposed by section 75 is not cruel and un-
usual, witliin the prohibition of the constitution. Tlie penalty
is a fine not exceeding $500 and imprisonment at hard lalor
for a term not less than two years, where the Avoman or child
do not die in consequence of the malpractice of the defend-
ant. It is a reasonable punishment for a heinous crime, which
in almost every case endangers the life and health of the
woman, and the destruction of the foetus or child, which may
be quickened or instinct with the beginning of life. It is not
cruel nor unusual, but the kind and degree of punishment im-
posed for crimes which are injurious to the persons of iiidivid-
uals. Fine or imprisonment, or both, is the usual form, while
for this crime, which manifests a recldess disregard of human
life, both must be inflicted. When a proper case arises for dis-
cussing what is a cruel and unusual punishment Avithin the
constitutional inhibition, the matter will be examined further,
but this is not such case.

For the error of admitting illegal evidence prejudicial to the
defendant, the judgment avUI be reversed, the record remitted
and a new trial ordered.

Note.— In The State v. Harper, 35 Ohio St., 78, which was an indictment
for unlawfully using an instrument witli the intent of producing an nhor-
tion, and not for homicide, the court held that the dying declarations of the
woman were inadmissible in evidence against the defendant. ' ' This," says
this court, in People V. Davis, 56 N. Y., 103, "is the settled rule, and it is
uimecessary to discuss the reasons upon which it is founded." See, also,
lieg. V. Hind, 8 Ck)x, C. C, 300.

COMMONWEALTH v. CORKIN.

Commonwealth v. Coktcin.

(136 Mass., 429.)

Abortion: Indictment — Evidence.

1. DERcniBixa the offense.— An indictment which alleges that the dc-
fi'iulant unlawfully used an instrument with intent to procure a miscar-
ria,';o of a woman named, and whicli descriliOH the instrument anil the
maimer in which the defendant used it, is sufficient.

3. EviDF.xcE AS TO PRIOR ACTS. — Acts of the defendant at other times may
he shown as tending to prove the intent of defendant, and if competent
to prove the crime chai'ged, it is no objection that it also tended to prove
other crimes.

JV. B. Bryant, for the defendant.

K J. Sherman, Attorney-General, for the commonwealth.

W. Allkx, J. The indictment must be construed as alleg-
ing lliat the defendant unlawfully used an instrument Avith in-
tent to procure the miscarriage of a Avoman named ; and it
sulliciently describes the instrument, and the manner in Avhich
the defendant used it. This is a suificient desci'iption of the
statutory offense of using an instrument AA'ith intent to pro-
cure the miscarriage of a AA'oman.

Tiie evidence objected to Avas clearly competent for the pur-
pose for Avhich it Avas admitted. Whether it Avas of acts Avhich
formed part of the principal transaction, or of acts of the de-
fendant at other times, it tended to prove attempts of the de-
fendant to procure the identical result the intent to procure
Avhich constituted the gist of the oifense charged, — that is, to
prove the intent Avhich Avas charged in the indictment. Being
competent to prove the crime charged, it is no objection that
it also tended to prove other crimes. 3 Euss. on Crimes (5th
cd.), 377 ct seq.; Commonwealth v. Choate, 105 Mjiss., 451 ; Com-
monwenlth v. McCarthy, 119 Mass., 351; Commonwealth v.
Bradford, 12G Mass., 42; Commonwealth v, Jackson, 132

Mass., IG.

Exceptions overrided.

AMERICA: CRIMINAL REPORTS.

In ee Brosnahan, Je.
(4 McCrary, 1.)

Adulteration: Federal jurisdietion — Constilutional laiv — Habeas cor-
pus — Patent laws.

1. Habeas corpus — Power op federal courts— State criminal stai •

UTE.— Tho circuit court of the United States may issue the writ of
habeas corpus upon the application of any person who is imprisoned in
violation of tlie constitution, or of any law or treaty of the United
States; and if a i^rson be imprisoned under a state statute which is
in conflict with either, that court has power to dischaige him.

2. State statute held not in violation of the constitution op the

United States.— Tlie statute of Missouri providing for the punishment
by fine and imprisonment of any person who shall manufacture "out
of any oleaginous substance or any compounds of tho same, other than
that produced from unadulterated milk, or cream from the same, any
article designed to take the place of butter or cheese produced from
pure, unadulterated milk, or (!ream of the same," or who sliall sell or
offer for sale the same as an article of food, is not in violation of any
provision of the constitution of the United States.

3. Patentee not protected against violation op state laws. — Tho

solo object and purpose of tho patent laws is to give to the inventor a
monopoly of what he has discovered. What is gianted to him is the
exclusive right, not the abstract right; but the right in him to tho
exclusion of everybod}' else. lie is not authorized by tho patent laws
to manufacture and sell the patented article in violation of tho laws of
the state. His enjoyment of the right may be modified by tho exigen-
cies of the community to which he belongs, and regulntod by laws
wliich render it subservient to the general welfare, if holu bubject to
state control.

4. Patent— In what sense a contract.— A patent is a contract only as

between tho parties to it, namely, the United States on one side and the
patentee on the other, and the rights conferred thereby can extend
no further than the right granted to the patentee under tho patent
laws.

5. Deprivation of liberty or property— Fourteenth ajiendiient to

the constitution.— The statute above named does not deprive any
person of liberty or property without due process of law, within the
meaning of the fourteenth amendment to the constitution.
C. Habeas corpus— Jurisdiction.— The federal courts have no jurisdic-
tion to discharge a prisoner held under a state statute, upon the ground
that such statute is in violation of the constitution of the state, or in
excess of the powers which the people of the state have conferred tm
their legislature. If it does not violate the federal constitution, tho
question is for the state courts.

On writ of Habeas Corpus.

IN RE BROSNAHAN, Jr. It

MiLLKR, Justice. The prisoner in this case is brought before
us by virtue of a writ of habeas corpus issued under the author-
ity of this court, and directed to John W. Rucker, in whose
custody the petitioner stated liiniself to bo. To this writ Mr.
Kucker, at the time of producing the body of his prisoner,
makes return that he liokls him in custod}' by virtue of a pre-
cept to him directed as constable by A. AV. Alhni, a justice of
the peace of Jackson county, lV[issouri, and lie annexes a copy
of the mittimus as a part of his return. From this it appears
that a criminal proceeding had been instituted against Brosna-
han for a viohition of the statute of ]\Iissouri concerning the
sale of oleomargarine, and that on being arrested and brought
before the justice of the peace, the latter had set the hearing
or trial at some future day, several months off, and had fixed
a reasonable sum as bail for the prisonei''s appearance at that
time. The prisoner refused to give bail, whereupon the magis'
trate made the order committing him to custody. The present
writ of habeas corpus Avas thereupon sued out.

As the courts of the United States are of limited jurisdic-
tion, and, in ordinary cases, can have no control of the courts
or judicial officers of the states while engaged in enforcing
their criminal laws, the counsel representing Eucker on behalf
of the state deny the jurisdiction of this court in the case.

For the prisoner the jurisdiction is asserted on the following
grounds : First, that the statute of ^Missouri is void, because
the article, oleomargarine, the sale of which it forbids in
^lissouri, is made and sold under a patent of the United States
issued to Ilyppolyte ^lege, December ;}(), 1ST3, for a new and
useful discovery under the patent laws on that subject ; second,
it is void because it impairs the obligation of the contract evi-
denced by that patent ; third, it is void because it is a regula-
tion of commerce among the several states ; fourth, because it
deprives a man of his property without due process of law
(section 1, article 14, of the Amendments to the Constitution
of the United States ) ; Jifth, because it is without any authority
in the constitution of the state of Missouri, and is outside of
any legislative power whatever.

The statute thus assailed is in the folloAving words :

" An act to prevent the manufacture and sale of oleaginous
Vol. rv — a

AMERICAN CRIMINAL REPORTS.

substances, or compounds of the same, in imitation of the

pure dairy product.

"Section 1. Whoever manufactures, out of jiny oUniftijious
substances, or any compounds of the same, otiier than tiiat
pro(hiced from unadulterated milk, or cream fi-om t\w same,
any article desi<,mod to take the place of i)utter or cheese
produced from imre, unadulterated milk, or cream of the same,
or Avhoever shall sell or offer for sale tiie s:ime as an article
of food, shall, on conviction thereof, be confined in the county
jail not exceeding one year, or fined not exceeding $1,000, or
both." Approved Wdrch 24. 1881.

The acts of congress concerning the writ of hnl)caf< corjnin
have been brought together in chapter IP. of the Revised
Statutes, and are included in sections 751-700.

That Avhich relates to the jurisdiction of the circuit courts is
found in sections 751 and 753:

"Sec. 751. The supreme court, and the circuit and district
courts, shall have power to issue writs of Jmhms corjintfi"

"Sec. 753. The writ of halem eot'pus shall in no case ex-
tend to a prisoner in jail, unless when he is in custody under
or by color of the authority of the United States, or is com-
mitted for trial before some court thereof, or is in ci^stody for
an act done or omitted in pui-suanco of the law of the United
States, or of an order, process or decrce of a cornet or judge
thereof, or is in eusfofli/ in vittlntion of the eonxtltHflon, or of a
law or treatij (f the United States, or boiug a subject or citizen
of a foreign state," etc.

The words italicized above, namely, " m* is in custody in vio-
lation of the coustituti(m, or a law or treaty of the United
States," confer the only power under which, in tliis case, juris-
diction can be exercised by the circuit couit.

It is quite clear that if the ^[issouri statute is justly obnox-
ious to either of the four objections first named, it is void, and
the person held for violating that statute is in custody in vio-
lation of the cimstitution of the United States; and the power
and duty of this court to discharge him are unquestionable.

We proceed 1o inquire if the law is so objectionable.

1. As to the (jffect of the patent. The patent is introduced
in evidence, and proof is offered to show tliat the ai'ticlc sold

IN RE BUOSNAHAN, Jr.

l>y tlio prisoner, and for wliicli salo ho is i)rosocutc'(l, is tlie
article specilied in Mege's patent, an<l tliat the prisoner has
siicli anthority as the |)atent eonl'ers to sell it. The validity of
tiie patent is not disputed, lias tiie i)risoner, then, a righ*^^ to
sell the article thus patented, not\vithstandin<^ the statute of
Missouri Avhieh foi'liids such sn\v{ The constitution (art. 1, § 8,
cl. 8j gives congress power "to proiriote Die progress of science
and useful arts by securing, for u limited tinu', to authors and
inventors, the <\tchi.slt'{> rhjht to their respective writings and
discoveries;" and the act of congress which is tlesigned to give
effect to this clause declares that in every case where a patent
is issued under it, the patentee shall have the exdmive right to
inah\ nse and sell Am subject-matter of his patent, whatever
it may he.

It is to be observed that no constitutional or statutory pro-
vision of the United States was, or ever has been, necessary
to the right of any person to make an invention, discovery or
machine, or to use it when made, oi' to sell it to some one else.
Such right has always existed, and would exist now if all
patent laws /ere repealed. It is a right which may be called
a natural right, and which, so far as it may be regulated by
law, belongs to ordinary municipal legislation; and it is un-
affected by anything in the constitution or patent laws of the
Tnited States.

The sole object and purpose of tlu! laws which constitute the
patent and copyright system is to give to the author and the
inventor a monopoly of what he has writtcMi or discovered, that
no one else shall nuike or nso or si^ll his writings or his inven-
tion without his permission; and what is granted to him is the
exclusive right; not the abstract right, but the right in him to
the exclusion of everybody else.

For illustration, an author who h ,<1 written or in'inted a
book always had the right to do so, and to nuike and sell as
many copies as he pleased; and he can do this though he takes
out no copyright for his work. Jhit if he wishes to have the
benefit of the exclusive right to do this, he can get it by secur-
ing a copyright under the act of congress. All that he ob-
tains, then, by this copyright, all that he asks for or needs, and
all it was designed to confer on him, is to make the right which
ho had ah'eady in common with everybody else, an exclusive

AMERICAN CRIMINAL REPORTS.

ri^ijlit in him —a monopoly in which no one can share without
his permission.

But let us suppose that the book which he has thus copy-
righted is an obscene and immoral book, which by the law of the
state in which it is published may be seized and destroyed, and
for tliat reason ; does this statute, whiclf forbids any one else
but him to print or publish it, autlioi ly.e him to do so? Can lie
violate the law because no one else or :i do it ? Does the copy-
right confer on him a monopoly of vice, and an immunity from
crime? Suppose a discovery of a cheap mode of producing
intoxicating liquor, in regard to which tlie inventor obtains a
patent for the product ; docs this authorize him to defy tlie en-
tire system of state legislation for the suppression of the use
of such drinks ? The answer is tliat the purposes of the patent
law and of the constitutional provision are answered when the
patentee is protected against competition in the use of his in-
vention by others ; and Avhen the law prevents others from
infringing on his exclusive right to make, use or sell, its object
is accom])lished. This pro})03ition is fully supported by the
supreme court in the case of Patterson v. Kenttichj, 97 U. S., 501 .
That case also cites with approval the following language from
the opinion of the supreme court of Ohio in the case of Jordan
V. Overseers of I)a>/t.o)i, 4 Ohio, 295 :

" The sole operation of the statute (the patent law) is to en-
able him I' ii ' inventor) to prevent others from using the prod-
uct of his labors, except with his consent. But his own right
of using is not enlarged or affected. There remains in him, as
in every otlier citizen, the power to manage his property or
give direction to his laborers at his ])lcasure, subject only to the
paramount claims of society, which requires that his enjoyment
may be modified by the exigencies of the community to wliicli
he belongs, and regulated by laws Avhich render it subservient
to the general welfare, if held subject to state control."

The principle is reaffirmed in WeUcr v. Virqinia 103 IT 8

Mi. , . .,

2. Does the Missouri statute impair the obligation of any
contract? The only one to which we are referred as aflTectcd
by It is the contract found in the patent between the United
States and the patentee. Some reference is made to a contract
between the puUlc and the patentee. We know of no such

lug an(
tion, w
state wi
than th
would I
by the f
liam, 8

IN RE BROSNAHAN, Je.

contract in a case like this, except such as may be found to
exist between the parties to it, namely, the United States on
one side and the patentee on the other. If we concede such a
contract to exist, it can extend no further than the right granted
to the patentee under the patent laws. We have already
sliown tliat this is not tlie original or absolute right to make,
to use and to sell, whicli is a right not dependent on the patent,
but the right to l)e protected against the manufacture, use or
sale cf this product by others without his permission. When
the state of Alissouri shall pass a law that everybody may
manufacture, use and sell oleomargarine, it will probably im-
pair the obligation of the Mege patent. If it does not, it will
certainly authorize the infringement of his right under the
patent, and will be void for that reason. It will be, then, imma-
terial whether it impairs the obligation of his contract or not.
3. We are unable to see that it is a regulation of commerce
among the several states. If it can be called a regulation of
commerce at all, it is limited to the internal conmierce of the
state of Missouri. Being a criminal statute there i^ no pre-
tense that it can have any operation outside the boundary of
the state. The person Avho manufactures or sells the article
outside of the state is not liable to the penalties of law. The
statute does not forbid its importation or exportation, the
bringing of it into the state, or carrying it out of the state ;
nor is its use in the state forbidden to those who cliooso to use
it even for food. It is only forbidden to manufacture it or to
sell it for food, to take the place of butter for that purpose.
For all otlier purposes it may be made and sold in the state,
and for that purpose, or any other, it nuiy.be imported or ex-
ported without violating tlie laAV. If it could be seen that the
law was directed by way of discrimination against the prod-
uct of a sister state, while no such prohibition existed against
tlie same ])v )duct in Missouri, or was intended to prevent buy-
ing and selling between the states, or importation and exporta-
tion, whereby the citizens or the productions of a neighboring
state were placed in a worse position in regard to that article
than the citizens or the productions of JVlissouri, the argument
would not be without force. Such is the doctrine laid down
by the supreme court of the United States in Woodruff v. Par-
/lam, 8 Wall, 123; and in Ilimon v. £ott, id., 148; and The

AMERICAN CRIMINAL REPORTS.

State Freight Tax Case, 15 Wall, 232; United States v. Dewitt,

9AVall,41. ^ . .

4. We are next to inquire whether the statute deprives the
owner of this product of his property, within the meaning of
the clause of the fourteenth amendment which says: "Nor
shall any state deprive any person of life, liberty or property
without due process of law."

The statute does not, in direct terms, authorize the seiz.ure
or taking of any property, not even that whose manufacture
is forbidden. The party is not, in fact, deprived of this prop-
erty by the statute, or by any proceeding which it authorizes.
The personal punishment, by fine and imprisonment, which
the statute imposes, must be inflicted according to the law of
Missouri, Avhich allows a trial by jury, with all the other
forms which from time immemorial have been held to be duo
process of law. The moneyed line, then, and the liberty of
Avhich the party may be deprived, are undoubtedly imposed by
due process of law.

If it be urged, as it has in some cases, that the offcct of the
statute upon tlie right to sell tlie property is sucli as to destroy
its value, and therefore to deprive the owner of it, tliero are sev-
eral answers to the proposition : First, the value of tlie property
can hardly be so alfected that tlie party may be said to be de-
prived of it, while it can readily be transported into some
other state, and sold without restriction; secondly, and conclu-
sively, that as to the product made or imported into the states
after tlie passage of the statute, the statute was and must bo
taken as part of the due process of law, and deprived tlie
party of nothing which he owiunl when it was passed, or which
he had a right to make or acipiire for sale as food at the time
he did so make or buy it. The law in such case did not de-
prive him of his projierty. If he is injured in relation to that
property, it is by his own acti(ni in buying or making it, with
the statute before his eyes. That statute was, as to him and
to this property, due [)i'ocoss of law, of which he had due
notice. Bai'temeijer v. Sfufe, 18 Wall, 132. Ilis injury or
loss, "f any, arises out of his determination to defy the law,
and it is by the law and its mode of enforcement, which, ex-
isting at the time, is due process of law, that he must be tried.
5. The evidence in favor of the petitioner is abundant, and

IN RE BROSNAHAN, Jr.

of the liighcst character, to prove that the article which he
sells, and which he is forbidden to sell by the statute of Mis-
souri, is a wholesome article of food prepared from the same
elements in the cow which enable her to yield the milk from
which butter is made, and Avhen made by Mege's process is the
equal in quality for purposes of food of the best dairy butter.
No evidence is offered by counsel for Rucker or for the state
to contradict this, because they say it is wholly immaterial to
the issue before the court. A very able argument is made by
counsel, whoso abilit}' commands our respect, to show that, such
being the character of the article whose manufacture and sale
is forbidden by the statute, the legislature of Missoui'i exceeded
its po\vers in i)assing it. It is not so much urged that any-
thing in tlie constitution of ^[issouri forbids or limits its power
in this respect by express language, as that the exercise of such
a power in regard to a property shown to be entirely innocent,
incapable of any injurious results or damage to public health
or safety, is an unwarranted invasion of public and private
riglits, an assumption of power without authoi-ity in the nature
of our institutionSj and an interference with the natural rights
of t'le citizen and of tlie public which does not come within
the [)rovinco of legislation. The proposition has great force,
and, in the absence of any presentation of the matters and
circumstances which governed the legislature in enacting the
law, we should have difficulty in saying it is unsound. For-
tunately, as tlie case before us stands, we feel very clear that,
even if well founded, this objection to the statute is one which
we cannot consider in this case.

As already stated, Avlien a writ of habeas corpus is issued by
the circuit court in behalf of one in custody of a state officer,
under judicial ])roceedings in state courts and under state
laws, the only inquiry Ave can make is, whether he is held in
"violation of the constitution, or of a law of congress, or a
treaty of the United States." The act in question may be in
conflict with the constitution of the state Avithout violating the
constitution, or any law or treaty of the United States. It
may be in excc^ss of the ])owers which the i)eople of Missouri
have conferred on their legislative body, and therefcn-e A'oid,
without infringing any ])rinciplo found in the constitution,
laAvs or treaties of the United States.

AMERICAN CRIMINAL REPORTS.

"We have, in the four objections to this statute first consid-
ered, examined all the points in which it is supposed to con-
flict Avith the constitution and laws of the United States, and
Ave know of no others, and no others have been suggested. The
jn-oposition now under consideration, if well taken, is one for
the consideration of the state court when this case comes to
trial. It is, in a habeas eoqms case in the federal courts, ex-
cluded by the express language of the statute conferring juris-
diction in such cases. This court does not sit here clothed with
full and plenary powei-s either of common law or of criminal
jurisdiction. Its criminal jurisdiction is still more limited than
its jurisdiction at common law and in chancery. It has, in
comuion Avith the district court, jurisdiction of all offenses
affainst the statutes of the United States. Such is not the case
before us.

Section 753 goes further, and authorizes the court to issue
Avrits of habeas corpus in all cases Avliere a ])erson is in custody
in A'iolation of the laws of the United States, including its
constitution and its treaties. The prisoner in t'lis case is not
])rosocute(l for a crime or offense against the United States.
We have, therefore, no general jurisdiction of the case.

We have endeavored to show that Avhile held inider a law of
Missouri by Missouri officials, it is not in violation of, it is not
forbidden by, the constitution, or any laAV or treaty of tlie
United States; and the act of congress, under Avhich alone
Ave can exorcise the special power of issuing Avrits of habeas
corpus, ])crmit3 us to go no further.

The return of the constable, Iluokcr, to the Avrit is sufficient,
and the prisoner must be remanded to his custody ; and it is so
ordered.

McCkauv, J., concurs.

Note.— In The State v. Addington, 77 Mo., llO, the court hold the act
prohibiting the manufacture or sale of oleoiuargju-ino or any other article in
imitation of butter or cheese constitutional. Held, also, that the offer, on
the part of the defendant, to show that oleomargarine was as Avholcsomo as
any other article of food, could not avail the defendant for the purpose of
testing the constitutionality of the law; that the object of the net was
the prevention of facilities for selling or manufacturing a spurious ai-ticle
of butter, resembling the genuina article so closely in its external appear-
ance as to render it easy to deceive purchasers into buying that which they
would not buy but for the deception; that the law was salutary in its ol>

STATE OF IOWA v. DONOVAN.

jccts, and that the legislature had a right to pass it in the exercise of tho
police power of the state.

In Palmer v. The State, 39 Ohio St., 236, the court held that, for the pur-
jiose of promoting the public welfare, the legislature had the power to pro-
hibit the sale of substances having the semblance of butter or cheese, but
not wholly made from pure cream or millc, unless each package of such
substance should have pamted, stamped or marked thereon, in the maimer
prescribed by the statute, the name of every ai-ticle used in, or entering into,
the composition of such substance, and that this power is possessed by the
legislature over the sale of aiticles protected by letters patent as well as
those not thus protected.

Adultery:

State of Iowa v. Donovan.
(61 Iowa, 278.)

Institution of prosecution for — Admissions -
character — Prior acts of adultery.

■Previous good

1. Adultery EFFECTED BY FORCE. — To constitute the crime of adultery as
agiiinst the man, the consent of the woman to the carnal intercourse is
not indispensable, but the oifense maj' exist as against him, though the
connection was effected by force and against her will.

•v'. Institution op prosecution for, by husband or wife.— Under a statute
which provides that no prosecution can be commenced but on the com-
I^laint of the Imsband or wife, appearing before the grand Jury as a wit-
ness in obedience to a subpoena is not a sufficient compliance witli the
requirements of the statute to authorize a conviction of the dctV'ndant;
but it is not incumbent on the state to establish the fact of the insti-
tution of the prosecution by the husband or wife beyond a reaaonable
doubt.

3. Admissions. — It is not erroneous to instruct tlie jury that " admissions

made in ordinary or random conversations are not generally considered
jx law as satisfactory proof."

4. Previous good character. — Previous good character is not of itself a

defense, but is a circumstance which should be considered by the jury
in connection with all the other evidence, and it may be sullicient to turn
the scale in favor of the accused, but its value as defensive evidence in
any given case is to be determined by the jmy.

5. Other acts op adultery. — The rule of law is that where the cli.- :go is

of one act of adultery only, in a single count, to which evidence has
been given, the prosecution is not permittetl afterwards to introduce
evidence of other acta committed at different times and places.

Appeal from Mitchell District Court.

The (lefendiint was indictetl for the crime of adultery, was
tried, convicted, ami sentenced to imprisonment for two years.
He appeals. The material facts appear in the opinion.

25 AMERICAN CRimNAL REPORTS.

Z. M. liyce, for appellant.

Smith McPherson, Attorney-General, for the state.

Day, C. J. 1. The person with whom the offense is alleged to
have been committed was the sister of the defendant's wife, fif-
teen years of age. SL 13 testi .led that the defendant accomplished
the connection wit-\ ) e .'"I'ce and against her will. The
court instructed the ju. ic \.ws: "To constitute the crime
of adultery as against the man, the consent of the woman to
the carnal intercourse i. j>ot indispt'usable, but the offense nuiy,
as against him, exist, though rhe c, .u.ection was effected by
force and against her will." The giving 'X tliis instruction is
assigned as error. It is fully in accord with the rule established
in State v. Sanders, 30 Iowa, 582. We are content with the
doctrine recognized in that case.

2. The court, after charging the jury that no prosecution for
adultery can be commenced but on the comi)laint of the hus-
band or wife, and directing them as to what acts on the part of
the defendant would constitute such complaint, instructed the
jury as follows : " Eut if she appeared before the grand jury in
response to a subpecna, and testified before them in the case,
but not intending to prefer the charge of adultery against the
defendant, but gave lier testimony supiiosing she was required
to do so, this would not be a complaint by her against her hus-
band, within tin; meaning of the law."

It is objected that this instruction is uncertain and mislead-
ing. It is not, we think, vulnerable to the criticism made. It
announces a correct rule, and was really in the interest of, and
beneficial to, the defendant.

3. The a})pellant complains of the following instruction:
" The burden is on the state to show tiiat the indictment was
found on tlie complaint of the wife, and failing to do so the
jury should acquit." The objection made to this instruction
is that it does not direct tliat the fact referred to must be
proved beyond a reasonable doubt. In State v. Jlcnh', 58 Iowa,
457, it was held that an averment in an indictment that the
prosecution was commenced on tlio complaint of the wife,
must bo proved by the state. Such fact is essential to the
conviction of the defendant, but it docs not enter into or con-
stitute any part of the facts which go to make up the crime.

STATE OF IOWA v. DONOVAN.

Whilst, thei'efore, the defendant cannot be convicted without
proof that the indictment was found on complaint of tlie wife,
we do not think it is incumbent upon the state to establish the
fact beyond reasonable doubt. The thirteenth instruction
asked by the defendant was correctly refused, if for no other
reason, because it required the fact of the wife's complaint to
be established beyond a reasonable doubt.

4. The defendant complains of the instruction of the court
thai " admissions made in ordinary or random conversations
are hot generally considered in law as satisfactory proof."
JJcfeiulant insists that the court should have instructed that
"ordinarily such admissions are Aveak and unsatisfactory
])roof." Wliilst the court might, without error, l»ave couched
the instruction in the language suggested by counsel, it was
not error to employ the language used.

a. The court instructed the jury as follows : " It is compe-
tent for a person accused of crime to prove, as a circumstance
in his defense, tJiat his previous character as to the trait in-
volved in the charge was good. Previous good character is
not of itself a (U^fense, but is a circumstance which should be
considered by tlie jur}' in connection with all the otlier evi-
dence, and it nuiy bo suHicient to turn the scale in his favor,
but its value as defensive evidence in any given case is to be
determined by the jury." It is claimed that this instruction
docs not place sulKcient emphasis upon proof of good charac-
ter, and that the court should have given an instruction asked
by the defendant upon the subject. We think the instruction
of the court gives all the effect to proof of good character
which the authorities warrant. See /State v. Wortkrvj), 48 Iowa,
5S3 ; State v. Horning, 49 id., 158 ; State v. Gustafson, 50 id.,
194.

G. The defendant complains of the refusal of the court to
instruct tlie jury as follows : " In this case it is claimed by the
defense that tliere are some circumstances in proof tending to
show that tl 10 Avas a combimition or conspiracy between the
wife of the defendant and her mothcu*, and the wife's sister,
Kate Corcoran, to fasten this crime upon the defendant, from
motives of malice, pecuniiiiy gain, or other motives. If you
Ihul, from the evidence, such to bo the fact, then it will bo your

«^

AMERICAN CRIMINAL REPORTS.

duty to acquit. Or if the evidence raises even a reasonable
doubt thereon in favor of the accused, you should acquit."
This instruction was properly refused. If the defendant com-
mitted the crime with which he was charged, it was the duty
of the jury to convict him, without any regard to the motives
which led to his prosecution.

7. The delcndaut assigns as error the refusal of the court to
permit the intmcUiction in evidence of a letter written by ono
John Callagan, to the wife of the defendant, stating that he
would ^nve the old lady, her mother, a span of colts as soon as
he was able to get Kate ; that he was bound to have Kate any
Avay. This letter was wholly immaterial, and it was properly
rejected.

8. The state introduced as a witness one St. John, who testi-
fied to certain conversations he had with defendant, in Avhich
he admitted having had intercourse with Kate Corcoran. Upon
cross-examination, he stated that he couUl not give the lan-
guage used by defendant, but could testify only from the
impressions received and the ideas formcil from the conversa-
tions. The defendant moved to exclude his testimony from
the jury. The motion 'vas properly overruled. The testimony
was properly left to the jury, to be given such weight as they
might deem it entitled to in view of the facts elicited upon the
cross-examination.

9. The witness, Kate Corcoran, testified to one act of inter-
course between herself and the defendant, m January, 1882.
The court permitted her to testify to another act of intercourse
occurring one week afterwards. This action of the court is
assigned as error. The rule of law is that where the charge is
of one act of adultery only, in a single count, to whicli evidence
has been given, the prosecution is not permitted after\N-ards to
introduce evidence of other acts, committed at different times
and places. 2 Greenl. Ev., § 47, and authorities cited. The
abstract shows, however, that, at the close of the argument,
the district attorney said he elected to rely upon the transaction
first testified to by Kate Corcoran. This, in effect, withdrew
the evidence of the second transaction from the jury, and cured
whatever error there may have been in its admission.

10. It is claimed that the evidence does not support the vcr-

STATE OF IOWA v. DONOVAN. gf

diet. The evidence is not of such a character as to justify us
in disturbin*^ the verdict.
The judgment is affirmed.

Note. — In Granhcrry v. State, 61 Miss., 440, under a st.itute which roads:
" If any man and woman sliall unlawfully cohabit, whctlior in adultery or
fornication, they shall be fined in any sum not more than $500 each and
imprisoned not more than six months, at the discretion of the court, and
it shall not be necessary to constitute the offense that the parties dwell to-
gether publicly as husband and wife, but it may lie proved by circumstances
which show habitual sexual intercourse," it was held tliat it must be shown
that the parties, whether dwelling together or not, habitually indulged in
sexual intercourse. The facts disclosed by the record were, that the defend-
ant was a school teacher, and it was shown by the testimony of the woman,
with wliom the offense was charged to have been committed, that on five
or six occasions during a scliolastic term of three months she remained at
the school-room after the other pupils had returned to tlieir homes, .at which
times and place, but at no other, the defendant had sexual intercourse with
her. On the facts of the c.ise, admitting all tlu; testimony proved and all that
might be fairly inferred from it, the court w.as of opinion that habitual sex-
ual intercourse was not proved. The coiu't held, however, that it was not
necessary that they should dwell together, nor that they should publicly
avow the relationship which existed between them — that it would be suf-
ficient to show that condition or relationship, whether avowed or concealed,
which, if pxibliclj'known, would lead men to char.ictei'izo the woman as the
mistiess of the man. " It i*habitual concubinage or lying together wliich
constitutes the cohabitation meant by the statute."

Upon a motion to quash an indictment for fornication against an unmai'-
ried man who was charged with having had sexual intercourse with a mar-
ried woman, it was held tliat defendant could not be convicted of fornication,
but that he might be convicted of adulteiy. " Adultery is committed when-
ever tliore is an intercoui'se from which spurious issue may arise. State v,
Tai/lor, 58 N. H., 331. See, also, The State v. Wilnon, 23 Iowa, 364.

What in sufficient commencement of the pronecntion by the httsband or
wife? Under the Iowa statute it is provided that "no prosecution for
adultery can be commenced but on the complaint of the husband or wife."
In The State v. Dingce, 17 Iowa, 232, it was held, where a wife filed an in-
formation before a justice of the pe.'ice, charging her husband with the
crime of adultery, that the prosecution was commenced by the wife within
the meaning of the statute, and that her appearance before the grand jury,
by which an indictment was found against him, was not essential to the
validity of the indictment.

After the prosecution is commenced by the husband or wife, it may be
continued without further co-operation on their part, and even without
their presence or consent. State v. Baldy, 17 Iowa, 39. And it is immate-
rial whether the prosecution is commenced before the examining magistrate
or the grand jury. It is then in the complete control of the courts, and
further voluntary prosecution by the husband or wife is unnecessary. State
r. Dingce, 17 Iowa, 233.

«tt

AMERICAN CRIMINAL REPORTS.

An avcrraont in an indictment for adultery, tliat the prosecution was com-
menced l.v the Imsband or wife of the defendant, h not conclusive upon,
but m;iy be controverted by, such defendant. The State V. Hath, 17 Ii)wn.

836. , , .

Marviagr. after void decree of divorce. The defendant procured a decree
of divorce from his wife and mm-ried again. Upon proceedings by the
former wife the decree of divorce was hold void for fraud and annulled.
In a criminal i)ro8ecution. held that the defendant was guilty of adultery
in cohabiting with the second wife. The decree of divorce being adjudged
void, it was so from the beginning, and neither that nor the good faith with
which it was contracted gave any validity to the second marriage. The
State V. Whitcomb, 53 Iowa, 85; State v. Goodenow, 05 Me., 30; Com. v. El-
well, 2 Met., 190; Com. v. Mash, 7 id., 472.

Taylor v. The State.

(36 Ark., 84.)
Adultery: Ai^pcal by state.

1, New trial.— A defendant acquitted of a misdemeanor punishable by fine

only may, upon sufficient grounds, upon motion of the state, be again
put on trial, without any violation of the constitutional provision against
putting one twice in jeopardy of life or lin^J for the same offense.

2. Cohabitation.— Sexual intercourse between persons not maiTied, though

living in the same house, is not sufflcient, alone, to constitute the offense
of cohabiting together as luisband and wife without being married.

Appeal from Mississippi Circuit Court. Hon. L. L. Mack, cir-
cuit judge.

Zyles, attorney for appellant.

Harkisox, J. Dempsey Taylor and Josie Eogan were, at
the November term, 1878, of the circuit court of ^Mississippi
county, indicted for cohabiting together as husband and wife
without being married. At the May term, 1879, Taylor was
separately tried and was acquitted by the '}avy. The court set
aside tlie verdict on the ground, as the record states, that it was
contrary to the law and the evidence, and continued the case.
At the jMay term, 1880, he was again separately tried upon the
plea of not guilty, Avas found guilty, and his fine assessed at $20.

He moved for a new trial, upon the ground that the verdict
was not Avarranted by the evidence. His motion was over-
ruled, and he appealed.

TAYLOR V. THE STATE.

■\

■'.

The cvuloncG AVas, substantially, that Josie Ilof^an lived in
Taylor's family, in ^linsissippi county, as a hireling, and did
the cooking lor the family, and she had been living there about
two years when the iu(li(!tment was found. She hiid five or
six children, the ohlest about sixteen and the youngest born
about the time of tlio iinding of the indictment, all of whom
Taylor recognized as his chiUh-en, and admitted himself to be
their father, and thoy called him papa. She and her cliildren
ate at the same table with him and his wife. The house in
which he lived was a dtmble house, having two rooms, with a
stack chimney between, but with no inside door or entrance
from one to the other.

Taylor and his Avife slept in one room, and Josie ]iOgan and
her children in the other. Tavlors wife had no children ; and
the witnesses knew of no unfriendliness of his wife towards her.

It is insisted that the court had no authority to set aside the
verdict of acquittal. The statute provides that appeals may
be takei by the state, as well as by the defendant, in criminal
cases, but there civn l)e no reversal of the judgment in felonies,
and only when the punishment is not imprisonment, in misde-
meanors, (iantt's Digest, sections 21 27, 2129, 21:52, 2U1, 2143.

And it was held, in the case of Jones v. The State, 15 Ark.,
201, that where a defendant indicted for a misdemeanor, pun-
ishable by fine only, has been tried and acquitted, and, on ap-
l)eal or writ of error to this court, the judgnient is reversed,
and the cause remanded, he may be tried again, without any
violation of the constitutional provision, that no person shall,
for the same otfense, be twice put in jeopardy of life or limb.

If, notwithstanding a verdict of acquittal, a new trial may,
after a reversal of judgment in this court, be had, we can see
no gootl reason, nor any reason whatever, why the circuit court
niay not correct the error, by setting aside the verdict and
granting a new trial, and so avoid the occasion for an appeal.

A new trial must be applied for in the court below, or there
can be no reversal for errors occurring at the time, and if it
should be granted, there can be no reason for an appeal.

There was no evidence that the appellant and Josie Bogan
claimed to be husband and wife, or that they sustained to each
other a relation in the house like that of husband and Avife.
lie had a wife living with hinj in the house, with whom he slept.

33 AaiERICAN CRIMINAL REPORTS.

Josio Bogan and her chlldion slept in anotlior room, and notli-
ing, so far as the testimony goes, was ever seen, in his and lier
demeanor and conduct towards each otlier, of an improper or
immoral nature. Sexual intercourse between ]>orsons not nnii--
ried, though living in the same house, is not sutHcicnt to con-
stitute the'^offcnse of cohabiting together as husband and wife,
without b-^ing married.

The verdict, we think, was without evidence to sustain it.
The judgment is, therefore, rov(>rsed, and tlie cause remanded.

Note.— A'o opjical or itrit of nror on behalf of the stntc. It sooins to be
well Kottleil .at the present time, in tliis country and in En,'(liuul, tlmt an
apiieal or writ of error will not lie in l)eii;ilf of the state, except where it is
given hy statute, and tlion only when the defendant has not been tried an<l
ac(iuitted.

This ipiestion came before the court of aj^iieals of New York in 1848 in the
case of The People r. Corning, 2 N. Y., 1. Bronson, J., after reviewing the
cases on the subject, says: "The weight of authority seems to be against
the right of the gcncrr ment to bring error in a criminal case. The absence
of any precedent for it, either here or in England, until within a very recent
period, fully countorb,alanees, if it docs not outweigh, the fact that the right
hiis lately been exercised, in a few instances, without objection. And in
three of the four states where the question has been made, the courts liavt>
decided that the right does not exist.

In Com. V. Cummings, 3 Cush., 212, decided in 1849, Shfiw, C. J., in an
elaborate and learned opinion, denies the right of the commonwealth to
prosecute a writ of error in a criminal case.

In State v. Lane, 78 N. C, 547, the court holds that no appeal can be
taken by the sttite to any court from the .action of an inferior court in sus-
taining a plea of former acquittal, although such plea is a mixed question of
law and fact, and that the court erred in not leaving the question to the jurj-.
The only gi-ounds of appeal recognized in that state are : 1. Wliere judgment
has been given for the defendant upon a special verdict; and 2. Where a like
judgment has been given upon a demurrer to an indictment, or upon a
motion to quash. Since the decision in Coming'' s Caw, 2 N. Y., supra, an
act has been passed in that state, providing that writs of eiTor to review any
judgment in favor of any defendant, upon any indictment for any criminal
offense, except when such defendant shall have been acquitted by a jury,
may be brought in behalf of the people, etc. Similar statutes exist in many
of the states.

This question came before the Queen's Bench Division in 1881 {Reg. r.
Duncan, 14 Cox, C. C, 571). Lord Coleridge, C. J., says: " With one single
exception, no new trial has ever been granted, as far as we can find, when
a defendant has been at his first tri.al in peril of imprisonment. The single
exception is Reg. v. Scaife, 17 Q. B. Div., 238, which was a case for felony;
but not, I think, on that accouui, of any greater or less weight as an au-
thority here. . . . Tliis case, however, was considered at great length in
Reg. V. Bertrand, L. Rep., 1 P. C, 520, an appeal in a case of felony from

New Soutl
the ]>rivy <
Iwiieh deei
I'pon ex
writ of err
a court of
foumled uj
land iK'fon
one shall Ix
certainly a:
country.

The burden
undertii
lation t<
entitled
the alib

Error t(

Pr'doJta
B.A.

Okt.v, J
and enteri
from, y
itentiarj^
meat stole
the door o
get the wl
door. ViW
store-hous^
prove the
fense char
showinar t
break an
be that tl
the store-1
Voi

WALTERS V. THE STATE.

New South Walos; and Sir John ColoriilKo, who (Iclivered thfl jiulgmont of
the inivy council. expresMKl <lisai)iirnvul and rc^n'et in rt'Hi)oct of tlio (juoen's
ImuiIi decision in wliich he had takt-n part, and lU-elint'd to follow it."

Upon exaniinntion of the ca.scs in tluH country holding that an appeal or
writ of error will lie in any ease when tlip defendant has Ixjen a<'(iuitted in
a court of coni|ietent juriHdiction, it will aj)jM'ar (ivident that they are
founded ui)on a mistaken construction of the practicxj jw it jn-evailed in Eng-
lanil iH'foH! Ijonl llale's time. It is a rule of the connnon law that no
one shidl be lirought twice in jeoi)ardy for one and the sanie offense, and
certainly such a rule should he enforced with peculiar eniphaaia in this
country.

"Walters v. Thk State.

(30 Ohio St., 215.)

Alibi: Burden of jwoof.

The burden of proof is not changed in a criminal case, when the defendant
undertakes to prove an alibi, and if, by n'ason of the «'vidence in re-
lation to such alibi, the jury should doubt tli(! defendant's guilt, he is
entitled to an accpiittal, although the jury may not Ikj able to sjiy that
the alUn is fully proved.

Error to tlio Court of Common Picas of llicliliind County.

Pritchard (6 Wolfe,, for plaintilf in error.

B. A. lIolIhujHioorth, Attorncy-G(!noriil, for the state.

1. The indictment cliar^^es burfrlary in breaking

Okey, J

and entering a barn in the night season, and stealing there-
from. Verdict guilty, and senteiu;e imprisonment in the pen-
itentiary, under Eevised Statutes, ^ (is;};"). The wheat and
meat stolen were in a store-house, and the evi<lence shows that
the door of such store-house was locked, and that in order to
get the wheat and meat it was necessary to break open such
door. But it was wholly immatei'ial whether the door of the
store-house Avas open or fastened. There was evidence to
prove the breaking and entering the l)ai'n, which was the of-
fense charged, and the crime was not (lis})i'oved by evidence
showing that in order to complete the theft it was necessary to
break and enter the store-house. We understand the proof to
be that the store-house was within the barn, and the door of
the store-house coukl not be reached except by first passing
Vol. IV — 3

AMERICAN CEimNAL REPORTS.

into the barn. In other words, that the store-liouse was merely
part of the barn. But if it was not necessary, in order to reacli
the door of the store-house, to pass into the barn, the result wouhl
be the same, for " wlien, on the trial of an indictment, there
appeai-s to be any variance between tlie statement in such indict-
ment and the evidence offered in proof tliereof, ... in the
name or descri[)tion of any matter or thing- tlierein named or
<lescriljed, sucli variance shall not be deemed ground for an
acquittal of the defendant, unless the court before Avliich the
trial is had find that such variance is material to the merits of
the case or may be prejudicial to tlie defendant." E. S., § 7210.
Under the circumstances appearing by tliis record, tlie alleged
variance could not, in any view, be matei'ial or prejudicial.

2. Evidence was given tending to sliow that the defendant
committed tlie alleged burglary and larceny on the night of
May 5, 1882. The defendant offered evidence tending to prove
an aVihi The court charged the jury, among other things, as
follows: "Ihider the plea of not guilty, the defendant Wal-
ters interposes the claim and defense that at the very time of
the alleged commission of the crime ho was elsewhere; that
is, that he was at that identical time either in the city of Mans-
field or in the village of Ashland, or in a railroad car journey-
ing between the two places; so that, being elsewhere, it was
physically impossible for him to be coniinitting crime at the
same time at Ealliet's barn. This defense, in hiAV, is called
alibi. The defendant need not make out his defense of alihi
by convincing you beyond reasonable doubt. If be established
this defense of aVtJn by a preponderance of evidence, that is
enough — you must acrpiit him. A preponderance of evidence
for the al'ihi will be when it outweighs what the state has pro-
duced to the contrary, jmd all the evidence to the contrary.
The credibility of the aUhl is gri^atly strengthened if it bo set
up at the moment of first accusation, and if it be consistently
maintained throughout subsequent proceedings; otherwise its
weight is lessened." To which charge the defendant excepted.

"We hold this charge to be erroneous. It is, in effect, that
evidence tending to show such alibi is not to be considered in
favor of the defendant unless it outweighs all the evidence in
opposition to it. We think it was the duty of the judge to
have said to the jury that they must consider all the evidence

in the cj
from th(
able doi
which h
^\•hen tl
reasoii o
doubt til
tal, alth(
was full;

Note.—
the oiitire
tiiid if, up
not rcmovi
sufli(;ioiit 1
considcrocl
whether a
It is, there
rant a cow
souglit to 6
strong as
truth of tl

To estal)
fied of its
derates. ,1

Alibi is
niert! fact f
lore, denui
40. It is \
devolves u
lished bef(
case again!
evidence 1-
unrelial)le.
cause setti
establish t
Iowa, 5110;
The hun
State V. Mi

WALTERS V. THE STATE.

;

in the case, including that relating to the alihi, and determine
from the whole evidence whether it was shown beyond reason-
able doubt that the defendant had committed the crime with
wiiicli he was charged. The burden of proof was not changed
when tlie defendant undertook to prove an aNM, and if, by
rcasoii of the evidence in relation to sucli alibi, the jury should
doubt the defendant's guilt, he would be entitled to an acquit-
tal, although the jury might not be able to say that the alihi
was fully proved. Tola' v. State, IG Ohio St., 583; 1 Bish. Cr.
Fro., §§ 10G1-10G8; AVhart. Cr. Ev., § 333.

Judgment reversed.

Note. — Ordinarily the defendant in a criminal case is entitled to have
the entire case left to the jury, upon the evidence introduced by both sides,
and if, upon consideration of all the evidence, every reasonable doubt is
not removed, he should te ac(iuitted. If the defendant submits proof in-
sufli( i(Mit to establish an nlihi, as such, still the jnoof submitted may be
considered by the jurj' in connection with tiie other evidence in deciding,
wlictlicr a reasonable doubt as to the guilt of the accused luus been raised.
It is, therefore, error to chai'ge that, if the evidence was suflicient to war-
rant a conviction, irrespective of tiie question of tilibi, and if the defendant
sought to set up an alibi, the evidence to suftport such defense should be so
strong as to convince tlie jurors' minds beyond a reasonable doubt of the
truth of the alibi. LamliH r. The State, 70 C5a., 051.

To establish an alibi it is not necessary that the jury should be fully satis-
fied of its truth. But the evidence of an alibi canot avail utdess it prepon-
derates. <S7tt^e V. lived, 02 Iowa, 40; State i'. IlamiUon, 57 Iowa, S98.

Alibi is not a defense within any acciu'ate meaning of the word, but a
mere fact shown in rebuttal of tlie state's evidence; and it does not, there-
fore, demand a specific instruc tion from the court. State v, Eecd, 02 Iowa,
40. It is well settled that the ouuh of proving an alibi in a criminal case
devolves upon the accuscil, and it must be clearly and satisfactorily estab-
lished before it can avail, where the evidence otherwise makes out a clear
case against him. This defense cannot be made out in a case where the
evidence to show the same is, in many important particulars, conflicting or
uineliable. Garvitu v. The reoi)le. 107 111., 103. A defendant in a crinnnal
cause setting up as a defense alibi or insanity has the burden of proof to
establisli this defense. State v, Ilemriek, 03 Iowa, 414; State v. Bruce, 48
Iowa, 5;iO; ,S7rf/c v. Hamilton, 57 Iowa, 51)0.

Tlie burden of jiroving matter of mitigation rests upon the defendant.
State V. Mazoii, 00 N. C, 076.

IlSS

AMERICAN CRIMINAL REPORTS.

Fleetwood r. The Cosimonwealth.

(80 Ky., 1.)

Arrest: Killing officer— Murder— Mnmlanghtcr.

Killing OF OFFICER— Want of knowledge op his official character
REDUCES crime TO MANSLAUGHTER.— A poaco officer lias the right to
arrest one who is committing a breach of tlie peace in his presence, au'l
to use such force as is necessary to make it; and if the person so dis-
turbing the iieace knows that the person attempting the arrest is an
officer, and kills him, it is murder; if he does not know the fact, it iy
manslaughter.

W. C. p. Breckinridge, for appellant.
P. W. Hardin,, Attorney-General, for appellee.

Judge IIiNEs delivered the opinion of the court.

Appellant was indicted for the murder of IMefford, tried,
convicted, and sentenced to the penitentiary for life.

Appellant was at a public gathering, with a pistol in his
hand, disturbing the peace by cursing, loud talking, and
threatening to shoot a certain person, when JMefTord, a con-
stable, attempted to arrest him, and being resisted, was, by
appellant, shot and instantly killed.

A peace officer has the right, and it is his duty, to arrest one
who is committing a breach of the peace in his presence, and
to use such force as may be necessary to effect the arrest ; and
if the person disturbing the peace resists arrest, and in so doing
kills the officer, he is guilty of murder, if he knew that th(>
person attempting to make the arrest was an officer; and guilty
of manslaughter, if he did not know it. The law of self-
defense, as api)licablo to rencounters between private persons,
does not apply, unless the person resisting the jirrest has
reasonable grounds to believe, and does believe, that the officer
is not acting in good faith in the attempt to arrest, but is using
his official [josition to gratify pei-sonal feeling against the person
sought to be arrested, and that by submitting to arrest and to
being disarmed he will, by reason of tliis fact, be in danger of
great bodily harm or of losing his life. Tlie officer being in
the riglit, and in the discharge of his duty, the person resisting
arrest does it at his peril, and if ho kill, ho is guilty of murder
or manslaughter, as it nniy appear that he know or did not

FLEETWOOD v. THE COMMONWEALTH.

IcnoAV the character in which the officer was acting. This view

of the law was presented to tne jury more fully and with more

clearness than in any case that has come under our observation.

The accused has no ground of complaint that the law was not

properly expounded, or that the whole law was not given.

Mochihce V. Commonwealth, 78 Kentucky ; Earl's Pleas of the

Crown, vol. 1, p. 302.

Judgment affirmed.

Note. — An officer has no riglit to arrest without process for a past misde-
meanor. In Pow V. Bcckncr et al., 3 Ind., 475, the court held that a statute
wliich makes it the duty of peace officers to suppress all riots, disorders, dis-
turbances and breaches ot the peace, and with or without pi'ocess to appre-
hend all disorderly persons or disturbers of the peace, and convey them before
a magistrate, etc., does not authorize such otHcei*s to aiTcst tlie offenders
without process, for a breach of the peace, after the offense has been com-
iiiitted and the disturbance has cei\sed.

To justify an ofiicer in making an arrest for a past offense, whether it be a
misdemeanor or felony, he can dispense with a waiTant only when he has
grounds of reasonable suspicion, such as would justify him at common hiw
in arresting for a past felony, llic State v. Grant, 76 Mo., 230.

Altliough a warrant has been issued to apprehend a person for an oflfensc!
Ii'ss than felony, and placed in the hands of the officer, unless lie has it in
his possession wlicn he undertakes to make the arrest, tlie i)risoner would
not be guilty of an assault, nor of resisting an officer in the discharge of his
duty, as the ollicer in making the arrest without tlie wiurant in his ])osses-
sion would not be in the execution of his office. Cudd r. Cube. 1 Ex. Div.,
353; The State v. ImvcU, 23 Iowa, 304.

In Codd V. Cabe, Draiuwell, B., says: "I have always held t to be clear
law that a person not charged with felony shall have the oiiportunity of
seeing the warrant when ho is taken into custody; and I should have arrived
at the conclusion that the present ajipellant is entitled to jvdginent. even
althtnigh there had been no authority in his favor. We liave <'onsulted
some of the other judges, and they agree with us that the decision of the
justic.i's cannot be ui)lield although tlie appellant displayed gi'eat violence.
Yet it is not expressly found by the justices that he used more for<'e tlian
was necessary to prevent his apprehension, wliich was unlawful; and, there-
fore, as tlie ciise stands, he has not been guilty in law of even a common
assault." See, also, Oalliard v. La.vton, 3 B. & S., 3(53; Hogg v. Ward, 3 H.
& N., 417.

Wiiere a police officer aiTested a man without a warrant, wlio was guilty
of no ollVnse, and, in preventing an escape, struck and Idlled the i»risoner, it
was iield that these facts would at least warrant a verdict for involuntary
manshuighter in the commission of an unlawful act. O'Contior r. The State,
(54 Oa., 125.

AMERICAN CRIMINAL REPORTS.

State v. Hannett.
(54 Vt., 83.)

Arson: Evidenc —Stenographer — Arguments to he confined to the evi-
dence.

1. To BURN one's own HOUSE %VHEN RIGHTFULLY IN POSSESSION, NOT ARSON.

Our statute has not changed the definition of the crime of arson as given
by the common laAV — tlie wilful and maheious burning of the dwelling-
liouse of anotlier; hence, when one burns tlie dwelhng-liouso that he is
lawfully occupying, in legal sense, it is not arson; for arson is a crime
against the security of the dweUing-house as such, and not as property.

2. Motive may be shown.— To prove that the respondent had a motive for

burning the building evidence was admissible to show liis ill-feeling
and its intensity towai-ds his wife, who had an interest in it; but not the
cause, merits and consequences of the quarrel; hence, it was error to
admit proof that the wife had procured a divorce for intolerable severity ;
that the respondent had been restrained by injunction from inflicting
personal abuse upon her; and that, subsequently, the marriage was
annulled on the giound of bigamy.

3. Error to read record of divorce. — It was error to read in the hearing

of the jury the record of the court in the divorce proceedings to estal)-
lish the competency of the wife as a witness, it being a question solely
for the court to determine.

4. On cross-examination ill-treatment op wife cannot be shown.— It

was error to allow the state's attorney to go into an inquiry, against an
exception, on the cross-examination of the respondent, as to whether ho
had been complained of and fined by a town grand juror for ill-treat-
ment of his wife.

5. Admissibility op stenoqrapher's notes.— To contradict the respondent

by proving that he had testified differently on the former trial under
the same indictment, the admissibility of the stenographer's notes of his
cross-examination depended on their relevancy; if relevant, admissihliv,
otherwise, not; hence, it was the duty of counsel to have selected those
passages contradictory to his last evidence.

6. Same —• Stenographer should be sworn.— A stenographer, although a

sworn ofllcer of the court, when he reads his notes of the testimony of a
former trial, ad evidence, must be sworn like any other witness; but if
not, if known to the oiiixjsite counsel, the objection should Ikj raised in
season, so that the over.siglit may be coiTected.

7. Counsel must confine their arguments to the evidence.— Counsel, in

their arguments to tlie jury, are bound to keep within the limits of fair
and temperate discussion of the evidence in the case. Any violation of
this rule entitles the adverse party to an exception.

Indictment for burning a dwelling-house, Caledonia county,
Ross, J., presiding.

The facts are sutRciently stated in the opinion, except the

STATE V. HANNETT.

following: At the close of the charge to the jury, the respond-
ent's couns6l claimed that the court had not reviewed his evi-
dence and claims as fully as it had those of the state, and
requested the court to do so ; but the court declined to modify
its charge.
The opinion of the court was delivered by

PowEES, J. The respondent was indicted and tried for the
crime of arson in burning a dwelling-house of Joseph M. Ste-
vens, executor of Francis Oliver.

The exceptions state that the fire occurred January 10, 1880,
and that the respondent was then living in the house, and had
the right to occupy the same until April 1, 1880.

These facts appearing on the trial, the res])ondent requested
the court to rule and hold that the i-espondent could not be
convicted of the crime of arson; but the court ruled other-
wise. At the common law, arson was de lined to be the wilful
and malicious burning of the dwelling-house of another. Our
statute has left the delinition of the crime as it stood at com-
mon law. The oU'enso is a crime against the security of a
dwelling-house as such, and not against the building as prop-
erty. In cases Avhere the ownership is in one, and the occu-
pancy in another, the indictment properly avers that the
dwelling-house belongs to the latter.

If the occupant is in i)ossession rightfully and burns the
house, he cannot, in legal sense, be guilty of burning the
dwelling-house of another — he burns his own dwelling-house.

The authorities supporting this proposition are too numerous
to be cited. They are collected in the text-books.

In order to show a motive for the respondent to burn the
house, evidence was offered tending to show ill-feeling between
the respondent and his wife Mary, and threats of the respond-
ent that he would " lay everything low," rather than permit
Mary's brother to occupy the house. No question is niade as
to the right of the state to show these facts. Mr. Hathaway,
a witness for tiie state, was permitted, against the respondent's
exception, to testify that, in 1870, he brouglit a petition for a
divorce in behalf of said IMary against the respondent, based
upon the ground of the respondent's intolerable severity; that
in 1879 he brought a ])etition to annul the said Mary's mar-

AMERICAN CRIMINAL REPORTS.

riage with the respondent, on the gi'ound that the respondent
had another wife living at the time of such marriage; that the
respondent was restrained from inflicting personal abuse upon
said Mary by injunction; and that in June, 188(>, the marriage
was annulled. This testimony we think went further than ^he
rule allows. Any evidence tending to show a family cpuirrel,
or a state of hostile feeling, between the respondent and his wife,
Avho would be a loser by the burning of the house, is within
the rule. But the merits of that quarrel cannot be investigated.
The independent fact of a hostile feeling and its intensity may
be shown. The cause, the merits, and the consequences of it,
cannot be shown.

The evidence in question Avas well calculated to inflame the
minds of the jury against the respondent, by showing him
guilty of other ofl"enses than the one on trial.

In order to establish tlie competency of the said Mary as a
witness, the state produced and read aloud in the hearing of
the jury the record of the court in the divorce j)roceedings,
showing that a petition was hied aiul decree obtained as testi-
fied to by Mr. Hathaway. It is apparent that the jury had
nothing to do with this record. It was ollered to the court
that the court might determine upon inspection whether the
marriage relation had been dissolved and thus the witness
made competent. AVe can inuigine no reason for reading it in
the presence of the jury except a desire upon the part of coun-
sel to prejudice the minds of the jury by proof that the court,
in the divorce proceeding, had found the charges testified to
by IlatluiAvay to bo true. AVhile it may bo doubtful whether
this was such error as Avould sustain an exception, still in the
evident view in which it was offered by counsel, wo think, in
a criminal ease, that such practice is unwarrantable and tends
to break down tiie safeguards which the law throws around
persons on trial for crime.

On cross-examination of the respondent, the state's attorney
Avas permitted, against exception, to go into an inipiiry to show-
that the respondent Avas complained of by the grand juror of
Walden, for ill-treatment of his Avife, and, being ])rosecuted
therefor, Avas fined. This evidence is of the same character as
that of Mr. HathaAvay above referred to, and like that Avaa
inadmissible.

STATE v. HANNETT.

To contradict the evidence of the respondent, the stenog-
rapher was called to the stand, and asked to read his notes
of tlie respondent's testimony in cross-examination on a former
trial under this same indictment. The respondent insisted that
only such parts of the former testimony, as related to subjects
u]ion Avhich the respondent had testified to on the present trial,
should be read by the stenographer, but the court ordered the
fitcnograi)her to read the whole cross-examination of the re-
s[)on(lont on the former trial. Much of tlie foriucr cross-
examination was irrelevant to the case; much of it foreign
to any inquiries addressed to the respondent on tliis trial ; and
much of it calculated to prejudice the respondent's case. For
the purpose of contradicting the respondent's testimony on the
])rescnt trial, it was the duty of counsel to select such passages
iu the notes of his former testimony as were claimed to be in
conflict with his present stoiy. It was error to go further.
He could not be contradicted upon immaterial issues, any more,
by ])i'oof of his declarations in court respecting them, than by
liis (loclarations out of court. If the objection that the ste-
nographer had not been sworn as a witness had been sooner
raised, it would have been sound. But the case shows that the
rosjiondcnt's counsel knew while he was reading liis notes that
he had not been sworn as a witness, and made no t)bjection
till the argument had commenced. The objection Avas then
raised, and the court ruled that, as he was a sworn officer of
court, it was unnecessary that he should be swoi"n as a witness.
Xo exception was taken to this ruling. If counsel had persisted
in their objection the court might have deemed it }>roper to
stop the argument and correct the oversight. It is clear that
any sworn officer of court, whether it be the reporter, clerk,
sheriff, attorney or other officer, when he takes the witness
stand as a witness must take the oath of a witness, lie is
then not discharging his official duties ; his oath of office is no
protection to the party against perjury. The reporter reads
his notes of a former trial as an attorney Avould read his ; in
either event their authenticity and correctness should be at-
tested by his oath.

It is argued that counsel for the prosecution ovei*stepped the
limits of legitimate argumentation in his comments upon the
facts testified to by Mr. Hathaway. The fact that counsel com-
mented vigorously upon the offenses of the respondent referred

AMERICAN CRIMINAL REPORTS.

to by Mr. Hathaway illustrates the purpose of counsel in
oifering the evidence. It is difficult to see why counsel may
not comment upon any evidence in the case. If the evidence
is not fit to be talked about, it is not fit to be admitted. But
no exception was taken to the argument of counsel.

Counsel in their arguments to the jury are bound to keep
within the limits of fair and temperate discussion. The range
of that discussion is circumscribed by the evidence in the case ;
any violation of this rule entitles the adverse party to an ex-
ception which is as potent to uj^set a verdict as any other error
committed during the trial. We think the charge of the court
did not fully answer the respondent's request to have his claims
explained and reviewed as fully as those of the state had been.
This request was one the respondent had the right to make,
and, in a criminal case, especially, was one that should be fairly
answered.

The sentence is vacated, the judgment is reversed, and the
case remanded for a new trial.

Note.— In Tlie State v. liases, 78 Mo., 307, it was urged that tho indict-
ment was bad because it alleged the ownersliip of the property in the
defendant. And in aiiswei-ing the objection thus urged tho court says:
" The indictment is not bad for charging the ownership of the house in the
defendant. It distinctly charges that the house at tho time was occupied by
certain families named, human beings, other than the defendant. The
statute denounces the act of burning 'any dwelling-house, in which there
shall be at the time some human being.' It was not even necessary to name
the person occupying the iiouse. State v. Aguila, 14 Mo., 130."

charge.

State v. Downs.

(59 N. H., 320.)

Arson: Indictment — " Adjoining," etc.

Variance -"Adjoining," "adjacent to," etc.- An indictment charging
that the respondent attempted to set fire to an out-building, adjoining a
dwelling-house, is not supported by evidence that tho building was
near to, but not in contact with, the dwelling-house.

Cogswell di Stone, for tho i-espondent.
Bogersy solicitor, for the state.

Stanley, J. The motion for the discharge of tho respond-
ent should have been granted. There was a variance between

Theo]

Levy,
for the (

THE STATE v. FULFORD.

the indictment and the proof. The out-building did not ad-
join tlie dwelling-house. " Adjoining " is a synonym for " ad-
jacent to," " contiguous." It was not adjacent to or contiguous ;
that is, in contact with the house. ArJcell v. Lis. Co., GO N.
Y., 192 ; Rex v. Ilodrjes, 1 Moo. & M., 341 ; Pemrelly v. Peo-
2>le, 3 Park., 59 ; 2 Kuss. Cr., 557, 561.

The statute upon which this indictment was found specifies
three distinct offenses, although the punisliment is the same in
all of them. Tlioy are — first, burning a dwelling-liouse ; sec-
ond, burning any out-building adjoining a dwelling-house;
third, burning any building whereby a dwelling-house shall be
burned. The Avords an out-building adjoining a dwelling-
house are words of description, and must be proved. A con-
viction under this indictment, upon the ovidenco received,
would be no bar to an indictment for attempting to set fire to
an out-buildiiig whereby a dwelling-house might be burned,
and tlie evidence received in this case would support such a

charge.

Judgment arrested.

BiNouAM, J., did not sit ; the others concurred.

The State v. Fulfoed. '

(33 La. Ann., 679.)
Arson: Practice — Deposition.

1, Copy of indictment and list of jurors have to be served on the accused

two days before trial, but not before arraignment. Previous decisions
affirmed.

2. The granting of a continuance is within the legal discretion of the court

a quo, with which this court will not interfere without manifest cause.
!i. So of the refusing of a new trial to tho accused.

4. Arson at common law and in this state.

5. Accused is, under no law, entitled to a commission to take the testimony

of witnesses residing in another state.

The opinion of the court was delivered by

Levy, J. The accused, William M. Fulford, was indicted
for the crime of arson, tried, convicted, and sentenced to im-

AMERICAN CRDIINAL REPORTS.

prisonment at hard labor in the state penitentiary for the
period of ten years. From this sentence and judgment he has
apiiealcd. The record presents an array of multitudinous ob-
jections and bills of exception, all of which are elab.H-ately,
ably and ingeniously argued by counsel of accused, in their
brief, which, while coiunumding admiration for the zeal, in-
genuity and ability displayed, fail to convince us that there
fs such error to the prejudice of their client as would justify
us in setting aside the verdict and revei-sing the judgment
appealed from.

We shall pass upon the bills of exception in the order in
which they were taken.

1st. As to failure to serve copy of indictment and list of
jury two days before arraignment. The law does not require
this serWce to be made two days before arraignment. It is
required to be made two days before trial, and this appears
from the record to have been done. State v. Kane, 32 Ann.,
999 ; 7 Ann., 507.

2d. As to fixing the case for trial before passing upon the
application for change of venue. The reasons stated by the
court sliow to our satisfaction that this action of the court did
not operate to the injury of the accused, it being stated at the
time that the fixing for trial was without prejudice to the
rights of accused to file his application for change of venue or
any other pleadings desired by him.

3d. As to overruhng the motion for change of venue, and
application for a commission to take the testimony of Avitncsses
under commission, there was no evidence introduced by the
defense on the motion for change of venue, there being thus a
virtual abandonment, and the want of diligence and manifest
intention to delay the trial, which are given as his reasons for
refusal by the judge a quo, justified that refusal.

4th. As to the denial of the continuance. The court a quo,
in the exercise of sound discretion, refused the continuance.
We will not interfere with this ruling, made in virtue of the
discretion with which the court Avas vested, and the reasons
for the ruling fully justify the action taken.

5th, 6th, 7th. The question propounded by the district attor-
ney, relative to the arrest of the Avitness Russell, Avas proper as
being in rebuttal of the attempt on the part of the defense to

THE STATE v. FULFORD.

show that said witness was actuated by malice in making the
affidavit against accused.

8th. There was not suificient reason to sustain the objection
to the question of the district attorney to the witness Sherrard.
The preface of the question did not cause the question itself to
assume the character of an objectionable or leading one.

9th. This exception has no merit. It was relevant to the
offense charged, and notwithstanding the lapse of time between
the conversation of witness and accused, and the burning, was
competent to show a pre-existing intent and malicious design
in connection with the offense with which accused is charged.

10th. This exception is also witliout merit. It was compe-
tent for the state to ask the Avitness Kussell why ho made the
affidavit for the arrest of tlie prisoner, in rebuttal of the at-
tempt of the defense to show that witness was actuated by
malice therein.

11th. The question propounded to the witness Jones in re-
gard to conversation and remarks made b\' one ^lurphy was
properly overruled, as tending to introduce hearsay and elicit-
ing the moi'e opinion of witness as to the motives of another
person.

12th. The reasons given by the district judge for sustaining
the objection of the district attorney to the question propounded
to the Avitness Kussell, viz., that a suificient basis had not been
laid for tlie impeachment of the testimony of said witness,
who had stated he could not give the substance of his conver-
sation witli one Burroughs, justified the judge in his ruling.

13th. Tlio special charge asked for by prisoner's counsel
has been substantially given by the judge in his written charge
to the jury, to the effect tliat where the defense seeks to prove
an aJihJ, tiio rule in regard to a reasonable doubt in regard
thereto is applicable alike to such proof as to that introduced
by the state.

14th. The reasons of the judge, as given in this bill, for his
ruling, are conclusive. In his written charge he had sub-
stantially charged as desired in the request for the special
charge.

15th. The court correctly charged in regard to weight or
consideration to be given to the law of the case as charged by
the judge, and the charge in that connection is fidly sustained

AMERICAN CRIfflNAL REPORTS.

by the decision of the supreme court in the case of State v.
Johnston, 30 Ann., 904.

loth. The special charge asked for and referred to in this
bill had been substantially given in the written charge.

17th. The same reasons apply to this as to the preceding
bill (IGth).

18th. So, also, as to this bill.

10th. The judge a quo, in overruling the motion for a new
trial, exercised the discretionary power with which he is in-
vested, and his reasons embodied in this bill convince us that
no grounds exist to justify us in setting aside liis ruling on the
motion.

The motion in arrest of judgment was urged on these
grounds :

1st. That the offense charged is not arson, and therefore is
prescribed by one year.

The crime of arson is not denounced by the statutes of this
state, eo nomine. The definition of this crime at common law-
is, " the wilful and malicious burning the house of another."
Both in England and in this country, by statutory enact-
ments, this offense has been enlarged and comprises several
grades and descriptions, just as the offense of homicide con-
tains distinctive grades. In this state we consider that, under
the generic term of arson, are included the offenses prescribed
in sections S-ll, 842 and 84.3, each of Avhich is but one class of
arson, and to Avhich different measures of punishment are at-
tached. The commission of any one of the distinctive offenses
enumerated in these sections constitutes the crime of arson.
Section 980 excludes, among other offenses, that of arson from
the prescription of one year, which is applicable to all others
than those specially excepted in this section.

2d. That the bill of indictment is invalid because " it is not
indorsed by the foreman of the grand jury in his official capac-
ity, but is simply indoi-sed John AV. Jones, foreman." This
indorsement was sufficient. This question w^as decided in the
case of State v. Folke, 2 Ann., 744. See, also, 12 Ann., 382,
743.

3d. That the bill of indictment does not allege who was in
possession of or had control of the building alleged to have
been burned, and does not state what kind of incorporation

case 1

exercise(
trict; th

THE STATE v. FULFORD.

the parish of Jackson is, how or by whom it was represented,
or is now represented. The allegations in the bill iis to the
ownership of the property, its character and dcscrii)tion, are
sufficient. The parish of Jackson is a political corporation
created by the state, the existence and "kind" of which is
defined by law and presumed to be fully known.

-Ith. That the bill does not show that the ^I'and jury had been
charged. AVe do not think that the ouiission in the bill itself
of the statement that the grand jury ha<l heen sworn is fatal.
The minutes of the coui't, as copied in the record, explicitly set
forth that the grand jury had been "duly impaneled, sworn
and charged."

In the assignment of errors, in addition to the objections
contained inth •ineteen bills of exception hereinbefore passed
uj)on, the following are urged :

That "the record shows that a foreman of tlio grand jury
was selected, l)ut does not sliow that he was sworn." We think
the entry on the minutes, which sets forth the siHection of the
forcnuin and the drawing of tlic; other graml jurors, and that
they were duly iiajjaneled, sworn and chai'ged, imnustakably
shows that the Avhole grand jury was sworn, and the bill of
indictment itself alleges that the grand jury of which the fore
man was a mcm])er had been " <luly sworn."

It i' ;i.-<si^ ' as I rror that the judge a */ito r«>fused to issue
« 'TV issions to take the testimony of cei'liiiu witnesses, on

.lalf of defen int, residing in the state of J^lississippi. In the
brief of counsi i the decision in thetase of iSfafe v. JFovnsby, 8
Jt., 551. is relied upon in support of his application. In that
case ii was held: " That, the courts of criminal jurisdiction not
being vested with power 1 yond a certain prescribed and de-
fined limit, compulsory prociess cannot issue beyond said limit;
that the accused has an undoubted right, imder the constitu-
tion, to have his witnesses heard, whether they bo found within
or beyond said limits; that the provision of the constitution
allowing the accused to be confronted with the witnesses against
him is a personal privilege which he may waive ; that being
entitled to a sj>eedy trial and to conipulsory ]>rocess to enforce
the attendance of his witnesses, this latter I'ight can only be
exercised when the witness resides or is found within the dis-
trict; that the legislature having failed to provide means to

AMERICAN CRIMINAL REPORTS.

coerce the personal attendance of the witnesses, it follows as a
necessary corollary, that recourse must be had to the ordinary
and only remaining method of procuring testimony, viz., by

commission."

Tliis clearly had reference to the testimony of vritncsses re-
siding within the state and beyond the jurisdictional limits of
the court before which the trial was had. It is l)!iscd upon the
reason that, under the constitution then existing, the accused
then, as now, liad the right to compulsory process to enforce
the attendance of his witnesses, and then the legislature hav-
ing failed to pass proper law s to carry out the provision of the
constitution, the court, ex projv'h wo^a, recognized, for the rea-
sons given in the opinion, the right to issue commissions to
take the depositions of witnesses Avithin the state, but beyond
reach therein of its process. This right was recognized in view
of the absence of means to enforce compulsorily the attend-
ance of such witnesses. The state can only ju-ovide for com-
pulsory process within its own limits and jurisdiction. She is
powerless to execute, or to cause to be executed, sucli process in
a foreign country, or even in another state. Under the laws
in force on the trial of this case, compulsory process, in certain
criminal cases, of which this is one, may be executed throughout
the state, and under the decision cited and the reasoning tlierein
depositions of witnesses absent, but within the state, would not
be admissible. Any constitutional or legislative provisions,
enforcing the attendance of witnesses outside of the state
by comymlsory process, to be executed outside of the state,
would be in vain and inoperative, and we tliink with the dis-
trict judge that there is no law authorizing the issuance of the
commission applied for, or the admissibility of evidence taken
thereunder. No such right exists under statutory law. and,
we think, cannot be derived from common law. In Alabama
it has been held that " at common law a commission to take
the deposition of a non-resident Avitness cannot issue at the
instance of the defendant in a criminal case." Ex parte Ilas-
l-lns, 6 Ala., 63.

We do not think there was error in the verdict, sentence
and judgment of the lower court.

The judgment of the lower court is, therefore, affirmed, with
costs.

DOWLEN V. THE STATE.

DowLEN V. The State.

(14 Texas Ct App., CI.)

Assault: Teacher upon a pupil.

1. AaORAVATED ASSAULT — EVIDENCE.— The prosccution for aggravated

assault wa.g based upon a chastisement inflicted by an adult school
teacher upon an infant pupil. The prosecution was permitted, over the
objection of the defense, to prove that the pupil, two or tlu-ee nights
after the chastisement, told his father that he could not sleep, because
Ills hips were so sore it pained him to turn in bed. Held, that this dec-
laration was made too long after the injury to be admissible in evidence.

2. Same.— Rules regulating the admissibility in evidence of the declara-

tions of an injured party respecting his injuries, stated and discussed.

3. Same. — See the statement of the case for special instructions requested

wliich, embodying correctly the law applicable to the facts, were im-
properly refused in the trial of a teacher for chastising liis pupil.

Appeal from the County Court of Collin. Tried below be-
fore the Hon. T. C. Gooclner, County Judge.

J. A. L. Wolfe and Garnctt c& Mxise, for the appellant.
J. 11, Burts, assistant attorney-general, for the state.

"White, Presiding Judge. This prosecution was by an in-
formation which charged appellant with an aggravated assault,
he being an adult male, committed upon the person of one D.
II. Wisdom, a child. Appellant was a school teacher and D.
11. AVisdom one of his pupils ; and it appears by the evidence
that the castigation was inflicted on account of a violation of
the rules of the school by the i)upil.

By the first bill of exceptions it is shown that the prosecu-
tion was allowed to prove, over objections, that, two or three
nights after the whipping, the injured party told his father
that he could not rest or sleep because his hips were so sore
that it hurt him to turn over in bed. This evidence was inadmis-
sible, because the statements Avere made too long after the in-
fliction of the injury. Mr. Wharton has discussed this subject
in one of his standard works. lie says : " The character of an
injury may be explained by exclamations of pain and terror
at the time the injury is received, and by declarations as to its
cause. AVhen, also, the nature of a party's sickness or hm*t is
in litigation, his instinctive declarations to his physician or
other attendant during such sickness may bo received. Imme-
VoL. IV — 4

PQ AMERICAN CRDHNAL REPORTS.

diate groans and gestures are, in like manner, admissible. But
declarations made after convalescence, or when there lias been
an opportunity to think over the matter in reference to pro-
jected litigation, are inadmissible. . . . Bnt where such
subsequent declarations are part of the case, on which the
opinion of the physician as an expert is based, tliey have been
received." AVhart. Crim. Ev. (8th ed.), sec. 271. Xot coming
witliin any of the exceptions pointed out, it was error in the
court to admit the testimony.

Comi)laint is made, in the second bill of exceptions, of the
charges given by the court at the request of the county attor-
ney,°in the following terms, viz.: "1. Whon an injury is
caiiscHl by violence to the person, the intent to injure is pre-
sumed, and it rests with the person inflicting tlie injury to show
the accident or innocent intention. The injury intended may
be either bodily pain, constraint, a sense of shame, or other dis-
agreeable emotion of the mind. 2. When violence is permitted
to elTect a lawful purpose, only that degree of force must be
used which is necessaiy to effect such purpose."

The proposition announced in the first iiaragrr.ph, tliough
unquestionably correct in tlie abstract and dcchircd as law in
terms by our statute (Penal Code, art. 485), it; not !ipi)li cable,
without further explanation, to cases such as the one under con-
sideration. It has direct application only to acts of " unlawful
violence," in the first instance, such as are essential to consti-
tute the assaults and batteries defined in article 481, Penal
Code.

But " violence used to person " is not xmlawf ul, and " docs
not amount to an assault and battery in the exercise of mod-
erate restraint or correction given by law to the j)arent over
the child, the guardian over the ward, the master over his ap-
prentice, the teaclior over the scholar." Penal Code, art. 490.
In all such cases the law presumes, from the relation of the
parties, an entire absence of any criminal or unlawful intent
to injure; and, in order to effect laAvful purposes, ])ermits tho
parent, guardian, master or teacher to restrain and correct tho
child, ward, apprentice and scholar. When tho teacher cor-
rects his scholar the presumption is that it is in the exercise
and within the bounds of his lawful authority, and it does not
" devolve upon him to show accident or his innocent intention."
Neither is it any criterion of his act or intention that " bodily

pain, com
tion of tl
law, to in
of restrai
. violence i
gree of f<
purpose."
It bein«
Wisdom,
that tlie f
the whip
tion, the i
, roc lion or
•that the
sumcd int
not coiK'l
case, the
■"vliich wci
the court
crate, (lef(
If it was 1
vated assii
his le lal i
a stnuigei
moiisure c
nor is it |i
cossive m
and dispo
rounding
the direct
V. The Sk

It was
refuse the
as given,
iiciently ]

lor th(
cause ren

Note.—]
,iiiry "that
t!iat t'lc cai
iiiiliciLvl; t

DOWLEN V. THE STATE,

ftlt

pain, constraint, a sense of shame or other disagreeable emo-
tion of the mind " is produced. He has the right, under the
laAV, to inflict moderate corporal punishment for the purpose
of restraining or correcting the refractory pupil. But " where
• violence is permitted to effect a lawful purpose, only that de-
gree of force must be used which is necessary to effect such
purpose." Penal Code, arts. 490, 491.

It being established that appellant was an adult male — that
Wisdom, the party alleged to have been injured, was a child —
that the former was a teacher and the latter his scholar — that
the whipping took place at the time chai'ged in the informa-
tion, the main question to be determined was, "Was the cor-
.rcction or whipping moderate or excessive?" If it be shown
■that the force is excessive, then, indeed, the rule as to pre-
Binucd intention may apply ; but this presumption of the law is
not conclusive even then. Upon this supposed state of the
case, the third and fourth requested instructions of defendant,
-'vhicli were refused, presented the law most aptly and fully, and
the court erred in not giving them. " If the correction was mod-
erate, defendant was not guilty of an assault and battery at all.
If it was not moderate, but excessive, he was guilty of an aggra-
vated assault and battery, by liaving exceeded the boundary of
his le -al right as teacher, and placed himself in the attitude of
a stranger. It is true the law has not laid down any fixed
measure of moderation in the lawful correction of a scholar,
nor is it practicable to do so. Whether it is moderate or ex-
cessive must necessarily depend upon the age, sex, condition
and disposition of the scholar, with all the attending and sur-
rounding circumstances to be judged of by the jury, under
the direction of the court as to the law of the case." Stanfield
V. The State, 4;J Tex., Km.

It was error to giv(5 the instruction we have discussed and to
refuse the third and fourth si)ecial instructions; and the cluirgo
as given, which was also excepted to, did not properly and suf-
liciently present the issues and law of the case.
; lor the eri'ors pointed out, the judgment is reversed and the
cause remanded. lievcrsed and remanded.

Note.— In Cass v. Randall, 4 Gray (Mass.), 130, the court instnicted fclio
.i»i'y " tlmt u teacher liatl a right to inflict coriwral punishment upon a scholar;
t'int tie case provjd was one in wliich such piuiiiilunent might properly bo
iaUiciuJ; that iu inflicting cor[K>ral punishment a teacher must exercise roa-

AMERICAN CRimNAL REPORTS.

Bonable judgment and discretion, and must be governed, as to the mode and
Beverity of the punishment, by the nature of tlie oflfense, by tlio age, size
and apparent powers of endurance of the i^upil; that the only question in
this case was whether the punishment in this case was excessive and im-
proper; that if tliey sliould find the punishment to have been reasonable and
proper, the defendant could not be deemed guilty of an assault and battery;
but if, upon all the evidence in the case, they should find the punishment to
have been improper and excessive, the defendant might properly bo found
guilty ui)on this complaint." To the credit of the jury, bo it said, they
evidently found that the pupil was not blessed with the " apparent powers
of endurance" of a mule, as they brought in a verdict of guilty. Tho
supreme court, passing upon exception alleged by tho defendant to tho
above charge, saj's: " The instructions given tended to justify the defend-
ant in punishing his pupils with greater severity than is consistent with a
just and humane exercise of the authority conferred on him by law. To say

the least, they were sufficiently favorable to the defendant

Whether, under all the facts, the punishment of the pupil is excessive, must
be left to the jury." The rule is, that one who has the right to inflict phys-
ical chastisement on another, and who proceeds with it to an unreasonable
extent, becomes guilty of an assault and battery. Hannan v. Edis, 15 Mass.,
347; Scribres v. Beach, 4 Denio, 448; Likes v. Dike, 17 Ohio, 454; Doles v.
Piakciion, 7 Dana, 453; The State v. Ross, 2 Dutcher (N. J.), 224.

Dunn v. The People.

(109 m., 035.)

Assault with INTE^^' to kill: Change of venue — Continuance — Rea-
sonable doubt — Instructions — Evidence.

1. ClIANQE OF VENUE ON THE GROUND OF PREJUDICE ON THE PART OF THB
PEOPLE OF THE COUNTY. — A jictition for a change of venue in a crimi-
nal case was based on the alleged prejudice in tho minds of the people
of the county, caused by the publication in certain newspapers of
prejudicial accounts of tho alleged offense, sucli newspapers having a
Btaiidiug and large circulation in the county. Tise state's attorney filed
a denial of tlie statements in the petition, supported by countLr afilda-
vits, going to show that such prejudice did not oxi.st from tho publica-
tion of the ai'ticles, among which aflldavits was that of the sheriff, to
the effect that ho talked about criminal cases with people from all parts
of the county, and had found there was but comparatively little in-
terest taken in the case, and that from his knowledge of tho temper of
the people of the county he had no hesitation in saying that tho de-
fondant could have his case tried as fairly and impartially in that
county as in any one in the state. It was held that this court was not
prepared to say the circuit court, in denying the petition, had decided
contrary to the right of the case.
2. CONTINUANCE — ABSENCE OP WITNESSES.— Ono ground for a continuance
in a criminal case was the absence of witnesses; but it did not appear
from the affidavit but that the same facts might be proved by other
witnesses. Held, that tliis ground was not sufflcient.

DUNN V. THE PEOPLE.

3. Same — Want of time for attorney to prepare the nEPENSE.— An

offense was alleged to have been committed on March 31, and the de-
fendant was arrested on the same day, so that both lie and liis counsel
wore then infoi-med of the nature and character of the offense with
wliich the defendant was charged, and the indictment was not found
until forty-seven days thereafter, and the trial was had twenty days
later. It was apparent from the nature and character of the case, as
shown by the record, that the defendant had ample time to prepare for
trial. It was held no error to refuse a continuance on the giound that
defendant's counsel had been so occupied with other casen in the circuit
and appellate courts that he had not sufficient tune and opportunity to
prepare the case for trial.

4. CiiniiNAL LAAv — Insanity as a defense — As to the test of responsi-

bility. — Where reason and judgment ai-e not overcome, Lut the
person charged with crime at the time retains the power to choose be-
twoon riglit and wrong as to the particular act done, ho cannot escape
ii'sponsibiHty for his acts under the plea of insanity.

5. So, if at the time a deadly assault is made, the person making the as-

sault knew that it was wrong to commit such an act, and had the
power of mind to choose eitlier to do or not to do, and of controlling
his conduct in accordance with such choice, he will be held amenable
to the law, although ho was not entirely and perfectly sane.
C. Same — Reasonable doubt — Defined. — A reasonable doubt, as vised
in instructions in criminal trials, is one arising from a candid and im-
paitial investigation of all the evidence, and such as in the graver
transactions of life would cause a reasonable and prudent man to hesi-
tate and ]iause.

7. Same — Of an instruction attempting to define a reasonable

DOUBT. — On a trial of one for an a.^sault witli intent to mnrdcr, the
court instnicted tlie Jury: "Tliatthe guilt of the defendant nuift bo
proved beyond a reasonable doubt, as used in the inKtnutions in tliis
case, means not a possible doubt, not a coiijei-tural doubt, not an im-
aginary doubt, not a doubt of the absolute certainty of tiie guilt of
the accused, because everything relating to human ad'airs and depend-
ing uix)n moral evident'o is open to conjectural or imaginary doubt,
and because absolute certainty is not reciuircd by law. A n asonablo
doubt exists in that state of tlie case wliich, alter considering and
comparing all the evidence in the case, leaves the minds of tlie jury in
that conditicm that they cannot say tiiat they I'eel an abiding convic-
tion of the truth of tlie charge; but when the evi<lence in the case es-
tabliiihes tlie truth of tlie charge to a reasonable and moral certainty,
that convinces the understanding and satisfies the reason and judg-
ment of the jury of the tnith of the charge, then, in law, there exists
no reasonable doubt." Ilild, that the instruction was more like an
argument than a proposition of law, and was erroneous.

8. Instruction — As to form of verdict in criminal case — As ignor-

ing THE right to find for 4. lesser offense — Duty of defense
to ask a counter instruction.— An uistruction given for the people,
on the trial of one for an assault with intent to murder, directing the
jury as to the form of their verdiit in c;ise of conviction, was oh ji'cted
to as error, inasmuch as the direction to fix the term the defendant

AMERICAN CRimNAL REPORTS.

Bhould serve in the penitentiary, if iound guilty, ignored the riglit of
the jury to find him guilty of a lesser offense. Held, that while not
concurring in such view, if it were correct it was the duty of counsel
for the defendant to have asked an instruction that the jury might
find a verdict for an assault with a deadly weapon, etc., and not hav-
ing done so, they were in no position to complain.
0. Same— Too many instructions.— On a trial upon an indictment for
an assault with intent to murder, the court, for the defense, gave
eleven instructions as asked, and twelve others after modifying them,
and refused twenty-three. It was held that the mlcs of law applicable
to the case were simple and plain, and that the practice of incumber-
ing the record with so many instructions was a vicious one, and it
ought not to bo encouraged.

10. Same — In tiie language Oi? the statute.— On a criminal trial, an

instruction following the language of the statute, wliich declares that
drunkenness is no excuse for crime, is not erroneous.

11. New trial- Verdict against the evidence — In criminal case.—

Where one was convicted of an assault on his wife with intent to kill
and murder her, and the proof was clear that tho accused did shoot
his wife, it was held that the question whether the shooting was an
accident, or was intentional, was a question of fact for the jury; and
that when they have settled that fact adversely to the defendant, with-
out passion or prejudice, in accordance with the evidence, it was not
the province of this court to disturb the verdict.

12. Evidence — Weight of defendant's testimony in criminal case,

WHEN testifying IN HIS OWN BEHALF.— Ou the trial of one Uiv au
assault with intent to murder, the court instructed tho jury that tho
credibility and weight to be given to the testimony of the defenilant
testifying in his own behalf, was a matter with the jury, and that in
weighing tho defendant's evidence they had a right to take into con-
sideration his manner of testifying, the reasonableness of his account
of the transaction, and his interest in tho result. Held, that there was
no error in giving the instruction.

Writ of Error to tho Circuit Court of McLean County ; the
Hon. Owen T. Eeoves, Judge, presiding.

3L\ Thomas F. Tqjton, for the plaintiff in error.
Mr. liobert B. Porter, state's attorney, for the people.

Mb. Justice Ckaio delivered the opinion of tho court.

This was an indictment in the circuit court of McLean
county, against Kobbins P. Dunn, for an assault on Phoebo
Dunn, with intent to commit murder.' Upon a trial before a
jury the defendant was found guilty, and his term of imprison-
ment in the penitentiary was iixcd at seven years. To reverse
tho judgment of the circuit court tho defendant sued out this
writ of error.

; Tho first alleged error is the decision of the court overruling

DUNN V. THE PEOPLE.

clcfcniUiiit's petition for a change of venuo. The ground set
up and mainly relied upon in the petition was, that certain
newspapers published in Blooinington had published prejudicial
accounts of the alleged assault, and as they had a standing
and liii'ge circulation in the county, by reason of such publica-
tions the minds of the inhabitants of the county were preju-
diced against the defendant. The state's attorney filed a denial
of the allegations contained in the petition, and in support of
the denial ho also filed counter allidavits of certain citizens who
were well acquainted in the county, who state, in substance,
that no ]>reju(lice exists in the county against the defendant.
Among the allidavits filed was one made by the sheriff of the
county, who btatcs that he talks about criminal cases with
peo[)lo from all parts of the county, and finds that there is but.
comparatively little interest taken in what is called the " Dunn
case," and from his knowledge of the temper of the people of
the county he has no hesitation in saying that Dunn could have
his case tried as fairly and impartially in McLean county as in
any county in the state.

Section 22, of chapter 140, of the Revised Statutes of 1874,
provides : " When the cause for the change of venue is the
prejudice of the inhabitants of the county against the defend-
ant, his petition shall set forth the facts on which ho founds
his belief, and the attorney on behalf of the people may deny
the facts stated in the petition, and support his denial by
counter alfidavits, and the judge may grant or deny the peti-
tion, as shall appear to be according to the right of the case."
Here there was no dispute in regard to the publication of the
newspaper articles, but the question was, whether these articles
had produced a prejudice in the minds of the inhabitants of
the county against the defendant. If they had, he would bo
entitled to a change of venue ; if they had not, then it was
the duty of the judge to overrule the petition. The affidavits
filed by the people in suppoi't of the denial of the allegations
of the petition, u])on which the circuit court rendered the de-
cision, tended to show that there was no prejudice of the in-
habitants of the county against the defendant, and we are not
prepared to hold that the decision of the court was contrary
to the right of the case.

The alleged offense was committed on March 31, 1883. The
indictment against the defendant Avas returned into court oa

AMERICAN CRIMINAL REPORTS.

the 27th day of Apni, 1883. On the 17th day of May foUow-
ing, the defendant entered a motion for a continuance of the
cause until the next term of court. The court overruled the
motion, and the decision is relied upon as error. One gi'ound
stated in the affidavit for a continuance is the absence of two
Avitnesses, in the state of Pennsylvania ; but it is not seriously
contended that the affidavit Avas sufficient upon this point, as
it does not appear from the affidavit but the same facts might
be proven by other witnesses. The main ground relied upon
in the affldaAdt for a continuance Avas, that counsel for defend-
ant had been so occupied Avith other cases in the circuit and
appellate courts that he had not sufficient time and opportunity
to prepare the case for trial. A defendant, as a general rule,
should not be compelled to go trial, after an indictment has
been found, until he has had a reasonable time to prepare his
case for trial ; but in this case the alleged offense Avas commit-
ted on March 31, and the defendant Avas then arrested, lie
and his counsel then kneAV the nature and character of the
offense, and then kncAV as Avell Avluit the defendant Avould bo
called upon to meet, as they did after the indictment Avas found.
Here was a period of forty-scA'en days from the time of arrest
before the defendant Avas required to go to trial, and twenty
days after indictment, in Avhich he might prepare for trial, and
from the nature and character of the case, as disclosed by the
record, it is apparent that defendant had ample time to pre-
pare for trial.

The court gave ten instructions on behalf of the people, and
objection is made to all of them except the first, fourth and
eighth. The second instruction announced the Avell-known
rule that the credibility and Aveight to be given to the testi-
mony of the defendant Avas a matter for the jury, and in
Aveighing the defendant's evidence they had the right to take
into consideration his manner of testifying, tlie reasonableness
of his account of the transaction, and his interest in tlic result.
The rule applied to the defendant may be adopted in regard to
the testimony of any Avitness called to testily in a case, and no
error is perceived in this charge to the jury. The third merely
folloAvs the language of the statute, which declares that
drunkenness is no excuse for crime, — and Ave held in Fitzpat-
rick V. The People, 98 III, 270, that such an instruction was not
erroneous. The fifth, sixth and seventh Avere as folloAvs :

«5.

DUNN V. THE PEOPLE.

" 5. If 3'ou believe, from the evidence, beyond a reasonable
doubt, that at the time of committing the alleged act the de-
fendant was able to distinguish right from wrong, then you
cannot acquit him on the ground of insanity.

" 0. If you believe, from the evidence, beyond a reasonable
doubt, tliat the defendant committed the crime in manner and
form as charged in tlie indictment, and at the time of commit-
ting such act was able to distinguish right from wrong, you
should find him guilty.

" 7. If from all the evidence in the case you believe, beyond
a reasonable doubt, that the defendant committed the crime of
whicli he is accused, in manner and form as charged in the in-
dictment, and that at the time of the commission of such
crime tlie defendant knew that it was wrong to commit such
crime, and was mentally capable of choosing cither to do or
not to do the act or acts constituting such crime, and of gov-
erning his conduct in accordance with such choice, then it is
your ihity, under the lav*', to find him guilty, even thougli you
should believe, from the evidence, that at the time of the com-
mission of i\ie crime he Avas not entirely and perfectly sane, or
that he was greatly excited or enraged, or under the influence
of intoxicating liquor."

It is claimed that these instructions conflict with the law as
declared by this court in IIopps v. The People^ 31 III., oS5, and
Cham V. The PeopU,, 40 id., 353. "Wo do not so mulerstand the
instructions. In the IIopps Caf^i', in discussing the question of
insiinity, it is said: ""We have come to the conclusion that a
safe and reasonable test in all such cases would be, that when-
ever it should appear from the evidence that at the time of
doing the act charged, t!ic prisoner was not of sound mind,
but afi'ected with insanity, and such affection was the efficient
caurio of the act, and that he Avould not have done the act but
for that airection, he ought to be acquitted. But this unsound-
ness of mind, or aU'ection of insanity, must be of such a de-
gree as to create an uncontrollable impulse to do tlie act
charged, by overriding the reason and judgment, and obliter-
ating the sense of I'ight and Avrong as to the particular act
done, and depriving the accused of the power of choosing be-
tween them." Under this decision, where reason and judg-
ment were not overcome, but the person retained the power to
choose between right and wrong as to the particular act done,

AMERICAN CRIMINAL REPORTS.

he could not escape responsibility for his acts untlor the plea
of insanity. This, too, is the doctrine of the instructions, if
we undei-stand them correctly. Under the iifth and sixth, if
defendant was able to distinguish between right and wrong,
he should be held liable. So, too, if at the time the crime was
committed the defendant knew that it was Avrong to commit
such a crime, and had the power of mind to choose cither to
do or not to do the act, and of controlling his conduct in ac-
cordance with such choice, then he ought to bo held resjion-
sible, although he was not entirely and perfectly sane. This,
in substance, is the principle announced in the seventh instruc-
tion, and we regard it correct. "Where a man knows that it is
wrong to do a certain act, and possesses the power of mind to
do or not to do the act, it would be a dangerous doctrine to
hold that such person should not be held responsible because
he might not be regarded entirely and perfectly sane.
Instruction Iso. D, given for the people, is as follows :
" That tlie guilt of the defendant nmst be proved beyond a
reasonable doubt, as used in the instructions in this case,
means, not a possible doubt, not a conjectural doubt, not an
imaginary doubt, not a doubt of the absolute certainty of tlie
guilt of the accused, because everything relating to human
affairs, and depending upon moral evidence, is open to con-
jectural or imaginary doubt, and because absolute certainty is
not required by law. A reasonable doubt exists in that state
of the case Avhich, after considering and comparing all the evi-
dence in the case, leaves the minds of the jury in that condition
that they cannot say they feel an abiding conviction of the
truth of the charge; but where the evidence in the case estab-
lishes the truth of the charge to a reasonable and moral cer-
taint}^, that convinces the understanding and satisfies the reason
and judgment of the jury of the truth of the charge, then, in
law, there exists no reasonable doubt."

This court has had occasion, in a number of cases, to de-
termine the scope and meaning of the term "reasonable doubt,"
and it has been uniformly held that a reasonable doubt is one
arising from a candid and impartial investigation of all the
evidence, and such as, in the grave.- transactions of life, would
cause a reasonable and prudent mxn to hesitate and pause.
Mai/ V. The People, 60 111, 119; MUler v. The People, 39 id.,
457; Comiaghan v. The People, 88 id., 400. In a number of

DUNN V. THE PEOPLE.

cases in this court an instruction given for the people, contain-
ing the above proposition, lias been sustained; but wo are
aware of no case Avhoro an instruction like the one given in
this case has been sustained by this couit. The instniction is
not a proposition of law, but it is more in the nature of an
argument than anything ^ve can lilccn it to, and in a case wliere
the testimony is conflicting, or such as to leave the minds of the
jury in doubt, it would bo likely to prejudice the jury. While
we do not hesitate to condemn the instruction, still wo do not
think it did any harm in this case, for the reason that the evidence
did not leave the guilt of tlie defendant in doubt. The guilt of
the defendant was so clear and palpable, from the evidence, that
no question of doubt could arise, and while the instruction was
erroneous, the error could work no injury in the case.

The tentli and last instruction given for the people, merely
directs the jury as to the form of the verdict. But it is said
tliat the direction to fix tlie term defendant should serve in the
penitentiary, if found guilty, ignored their right to find the de-
fendant guilty of tlie lessor offense, and hence was erroneous.
Wo do not concur in this view, but if counsel for defendant are
correct, it was for them to prepare an instruction informing the
jury that they should bring in a verdict of guilty, only, if they
find, from the evidence, that the defendant Avas guilty of tlio
lesser offense, — an assault Avith a deadly weapon ; and as they
did not i»sk for an instruction of that character, they are in no
position to complain.

The court gave to the jury, on behalf of the defendant,
eleven instructions as asked, twelve others were modified by
tlie court, and given as modified, and twenty-three were re-
fused. It would be extending this opinion to a greater length
than we have the time to do, should we undertake to review
the decision of the court on the thirty-five refused and modi-
fied instructions, and it would serve no useful purpose to do so.
We are satisfied, aftdf a careful examination of the record, that
the jury was fully and fairly instructed in regard to the law
involved in the case, and if it be true that some of tlie refused
instructions contain correct propositions of law, no harm was
done in refusing them. The rules of law applicable to a case
of this character are simple and plain, and the practice of in-
cumbering the record with so many useless instructions is a
vicious one, and it ought not to be encouraged.

AMERICAN CRimNAL REPORTS.

It is also claimed that the verdict of the jury is against the
evidence. There is no controversy in regard to the fact that
the defendant shot his former Avife. lie claims that the re-
volver which he had in his possession was discharged by acci-
dent, while engaged in a sculUe with his son. In this, however,
he is contradicted by his wife and several nionibers of his family,
who were present at the time the shooting was done. Wliether
the shooting was an accident, for which the defendant should
not be held responsible, or whether it was done intentionally,
was a question of fact, purely for the determination of the jury ;
and when they have settled that question Avithout passion or
prejudice, in accordance with the evidence, it is not the province
of this court to disturb the verdict of the jury.

The judgment of the circuit court Avill be airirmcd.

Judgment affirmed.

Dpnaavay v. The People.

(110 111., 333.)

Assault avith intent to kill: Shooting a third person.

1. Assault to murder a person other than the one intended, or

AVITHOUT intent AS TO ANY PARTICULAR ONE — RECKLESSNESS — GEN-
ERAL malice. — Whore a person deliberately shoots at A., and in tho
direction of B., and tho ball misses A. and strikes B., inflicting a wound,
these facts will sufficiently show tho intention of the person shooting
to kill and murder B., although ho has no actual malice or ill-feeling
toward B., and he may bo convicted of an assault uix)n B. with intent
to kill and murder him.

2. Where an act, unlawful in itself, is done with deliberation and with tho

intention of killing or inflicting serious bodily harm, though tho inten-
tion bo not directed to any particular person, and death onsuo, it will Ijo
murder at common law. Thus, if a party fires a gun-shol into a crowd
of persons with intent to murder some one, or when it is done Avith
criminal recklessness, tho killing Avill bo mui'dw, although no intention
existed to kill any particular person.

3. Where one, without provocation, disch;irged his pistol dirortly at a group

of persons, it matters not what person ho intended to kill; or if, under
such circumstances, he shoots a person other than the one intended, tho
act, from its recklessness and want of provocation, will bo referred to
no other cause tlian malice. Such reckless acts imply general malice.

"Writ of Error to the Circuit Court of Williamson County ;
the Hon. D. M. Browning, Judge, presiding.

in the
that Av
about

DUNAWAY V. THE PEOPLE.

3fr. James 31. Gregg, for tho plaintiff in error.
J//'. William W. Clemens, state's attorney, and J//*. Jamea
McCartmy, attorney-general, for tho people.

Mb. Justice Scorr delivered tho opinion of the court.

In tho indictment presented by tho grand jury of Vrilliam-
son county, against James A. Dunaway, ho is cliargcd with an
assault, with intent to commit murder, upon tlio powon of
Ilartwell Ilendrickson. On tho trial at tlu; Noveiu!)or term,
1SS3, of the circuit court of that county, delcndant v.a;} found
guilty, and sentenced to the penitentiary for a period oi six
years.

There is very little conflict in tho evidence, and tlio material
facts can be readily ascertained. It appears that on tho even-
ing of January 4, 1SS3, defendant was at tho dtjor of a store
in the village where the parties reside, talking witli r.omo ono
that was sweeping tho sidewalk, when Dow llavLwoU was
about to pass into tho store. Some conversaticm not of an
angry character occurred between defendant and Ilartwell, as
to Avhether tho latter would commence other ])i'ococdings
against defendant. Shortly afterwards defendant entered the
store where Ilartwell and several other persons wore standing
or sitting aroimd the stove, among whom was IJarLwell Ilen-
drickson. It seems Ilai'twcll is an attorney at law, and had
commenced proceedings on boluilf of defendant's wife for
divorce from him, but whether defendant (mtertainod any ill-
will against Ilartwell on that account does not certainly appear.
But little was said by defendant after he entered the store and
approached the stovo where the ])artios were, before he drew a
revolver and shot towards Ilartwell, the bail taking effect on
Ilartwell Ilendrickson, inflicting a very serious wound. A
second shot was fired, but it did not hit any one.

Defendant Avas no doubt under the influence of intoxicating
liquors at the time of the shooting, yet not so drunk but Avhat
he knew most, if not all, that occurred. It is not pretended
by defendant, or any ono for him, tho pistol was accidentally
discharged. His own testimony is : "I shot it because I wanted
to." He also says ho "had no feeling against either Ilendrick-
son or IlartAvell." Tho judgment might be sustained on tho
ground the intention Avas sufficiently i)roved to kill and murder
Hendrickson. Ho shot in the direction ho was standing, and

AMERICAN CRIMINAL REPORTS.

the Ita is, a party intends the necessary consequences of an
act (lelil , lately done. Giving tliat construction to the evidence,
the instructions given by the court for the people contain
nothing calculated to mislead the jury.

Section 24 of the Criminal Code, under which defendant was
indicted, provides: "Whoever attempts to commit murder,
... by any means, shall be guilty of the crime of an as-
sault with intent to commit murder," and the theory of the
defense is, that if defendant intended to kill and murder any
one, it was Ilartwell. The evidence, in some degree, at least,
warrants this view of the case. The conversation at the door
of the store, before the parties entered, shows defendant had
some ill-feeling towards Ilartwell. His inquiry Avhether Hart-
well was going to "get up another suit" against him, shows un-
kind feeling, to say the least of it. On the hypothesis the
defendant intended to murder Ilartwell, the argument is, the
shootinff of Ilendrickson was not intended, and therefore de-
fcndant could not bo guilty, under the statute cited, of an as-
sault with an intent to murder Ilendrickson. The law is, that
had defendant shot at Ilartwell with intent to murder him,
but killed Ilendrickson, the killing of the latter would have
been murder at common laAV. The rule in such cases rests on
the fact there was a felonious intent to commit murder. It is
said when an unlawful act in itself is done with deliberation,,
and with the intention of killing or inflicting serious bodily
harm, though the intention be not directed to any particular
person, and death ensue, it Avill be murder at common law.
Thus, if a party fires a gun-shot into a crowd of persons, with
intent to murder some one, or when it is done with criminal
recklessness, tlic killing will be murder, altliough no intention
existed to kill any particular person. As the argument is un-
derstood, it is not denied that had the wound on Ilendrickson
proved fatal the killing Avould have been murder, could it havo
been established the defen lant intended to kill Ilartwell. Tho
charge is, defendant assaulted Ilendrickson with intent to
commit murder, and the insistence is, no such intent is shown,
because the intent was to murder Ilartwell. Tho roasoninir on
this brancli of tlio case is too subtle to bo adopted with safety.
Undoul)tcdly there are cases that hold tlie doctrine contended
for, and co many of tho early text writers wrote, but the bet-
ter and more modern doctrine is against tho position taken.

Concedir
Iloiuh'icl
severe av(
Avitli into
crime th
cither in
In tho
ant was i
Avhicli de
sault, or
ickmy, s;
state prif
ant did n
fore tlie :
proven,
of person
AA'as woun
intended
held, defe
Avitncss A\
autliorizci
tliat on 1
necessary
The State,
unlike the
pistol Avas
Avoumlod
])osition o
ably appr
viction or
Avilh inter
A\as not <
]it'(j!na V.
Dut the
J^cpi'ij et
dieted am
dor. On
instructed
tliat one
prepense,
Avould bo

DUNAWAY V. THE PEOPLE.

Conceding, as is done, had the shot fired by defendant killed
Iloiulrickson it would have !ieeii murder, the proposition the
severe Avounding by the same shot Avould not have been done
Avilh intent to commit murder, — that is, to commit the greater
crime that might have been the result, — finds no sanction
citlier in reason or the analogies of the law.

In the case of Walker v. The State, 8 Ind,, 290, the defend-
ant was indicted and convicted under the statute of that state,
which declares : " Every person Avho shall perpetrate an as-
sault, or an assault and battexy, with an intent to commit a
i'(.>i()ny, shall, upon conviction thereof, bo imprisoned in the
state prison," and the defense insisted upon was, that defend-
ant did not intend to shoot tiio prosecuting witness, and there-
fore tlie intent to murder, as laid in the indictment, was not
proven. It appeared defendant deliberately shot into a crowd
of persons, among whom was the prosecuting witness, and who
was wounded by the shot. Althougli defendant may also have
intended to murder another person in the same crowd, it was
held, defendant having committed a batteiy on the prosecuting
Avitucss Avith a weapon likely to cause death, the jury Avero
authorized to iind the intent as charged in the indictment, and
that on the principle every man is su])posed to intend the
necessary consequences of his 0\vn act. The case of i'aJh.ihan v.
The State, 21 Ohio St., 300, is a case arising under a statute not
unlike the one in the case last cited, and it was ruled, where a
pistol was discharged with criminal intent at one person, and
Avoundod another, who was at the time known to be in such
])osition or proximity that his injury might have been reason-
ably ai)prehcndcd as a probable consequence of the act, a con-
viction on an indictment averring tlie shooting of the latter
Avith intent, is good under the statute of that state, and that it
Avas not error, on the trial, to instruct the jury accordingly.
Ju'(jlna V. Smith, 33 Eng. L. & Eq., 5(57.

Ihit the question involved is not new in this court. In
l^cri'ij et al. v. The People, \\ 111., 49(5, defendants Avcro in-
dicted and con\'icted of an assault Avith intent to commit mur-
der. On the trial, at the instance of the prosecution, the court
instructed tlie jury that if tliey believed, from the evidence,
tliat one of defendants iired the ])istol, oitlier Avith malice
])r('i)enHe, or a total disregard of human life, then the hiAV
would bo for the people. In remarking on that instruction

AMERICAN CRIMINAL REPORTS.

the court said : " Where the act is committed deliberately, and
is likely to bo attended witli dangerous consequences, the mal-
ice requisite to murder will be presumed." The instruction
was a|)])roved because predicated upon that principle of law
wliicli attributes malice to reckless acts of homicide, Avhere no
particular motive can be traced.

The case of Vanclermarh d al. v. The People, 47 111., 122, is
analogous, both in principle and in its facts, with the case now
before tliis court. Defendants were indicted for an assault
with an intent to commit murder, and it was insisted in that case,
as here, that defendants shot at another person, and it was
accidental the prosecuting witness was hit. There Avas a con-
llict in the evidence Avhether the defendant who lircd the shot
intended to slioot another person. Tlio affray occurred be-
tween one of the defendants and Hand, and it seems another
defendant drew his pistol, and the shot fired struck tlic prose-
cuting witness, wlio was not in the crowd. Under tlieso cir-
cumslances, it was said by the court, tlie jury woi'o warranted in
the conclusion defendant was actuated by malice against the
party injured, or if not, his conduct was so reckless tliat it im-
plied a total disregard for tlie lives of others. The act was
such as implied general malice, and as defendant evidently in-
tended to shoot some one, when it Avas apparent it Avas Avith-
out any provocation, the act Avas referred to malice, antl the
conviction of the party that did the shooting Avas sustained.
The facts in the case being considered bring it precisely \vithin
the doctrine of the case cited. Here, defendant discharged
his pistol directly at the group of men around the stove, and
Avhether he intended to kill Ilartwell or llendrickson, ho must
haA'e intended to kill and murder some one of the number.
The act Avas deliberately done, and Avas done Avilh such an
utter, reckless disregard for the lives of others, Avhero no ap-
parent provocation existed for the shooting, it can be referred
to no other cause than malice, and that is suflicient, on the
authority of the previous decisions of this court, to sustain the
conviction. The instinictions given by the court, at the in-
stance of the prosecution, conform so nearly to this a'Ioav of
the hiAV it is not possible they could liaA'e misled tlie jury, to
the prejudice of defendant. Indeed, the evidence so fully
Avarrants the conviction, it is plain to be seen the jury Avero
not misled. That some of the instructions are subject to criti-

WILLIAMS V. THE STATE.

cism on account of the pliruscology in which they arc ex-
pressed, may be conceded. Entire accuracy in the use of
liing'uago in an instruction containing a correct proposition of
law wouid. of • .iirse, be desira^jlo, but it is not always attain-
able, 11' i bo reasonably expected. It is not, and ought
not to be, tiie practice to re\'erse a judgment in a criminal case
because some iiuiccuracy in word or phrase nuvy be found to
exist in an instruct!' u which contains ii correct proposition of
law, although not \ery h;ip])ily expressed. Such a practice
would render the administration of the criminal law so technical
and diliicult as to defeat the ends of justice. The conviction of
defendant is wai i; led both by law and the evidence, and the
judgment again i Jsiui ought not to be reversed on account of
slight inaccuracies in the statement of the law, that could in
nowise affect the merits of the defense.

The judgment will bo allirmed.

Judgment ajjlrmcd.

"Williams v. The State.

(G7 Ga., 187.)

Bastardy: Jurisdiction.

Gist Oi* offknse is the refusal of the putative father to orvE eond.—
The K'«t 1)1" tlu! offt'iiHi.! of biustanly is tin; rofusal ol' tlio putative father
to givo bon<l for tlio support of the child. A prosecution for Lastardy
is a srecicri of protective measure to i)revent couutios becoming; cluirge-
able with pauper bastards. Therefore, the county to wliich the l)astard
is likely to Imhouig chargeable has jurisdiction of a bastaidy case, and
not the county in which the child was begotten or born.

Before Judge Sneed. ^McDuflie Superior Court.

Thos. E. Watson and Jlarrlmn <& Pecj^les, for plaintiff in
orror.

Boijl'hx Wriff/it, solicitor-general, by F". L. Haralson, for
defendant.

SiMOKU, TttsTirK. On the ?,0[\\ Se])tembor, ISSO, Mamie "Will-
iams nuide allidavit before W. (). Morreli, a justice of the
peace of McDulHe county, charging tiie defendant in erior with
Vol. IV — .-)

AMERICAN CRIMINAL REPORTS.

being the father of her bastard child, born on the 2Gth April,
1880, and that said child was lilcely to become chargcnible to
Taliaferro county. A warrant was issued on said affidavit, the
defendant was arrested, and he was recognized to appear at
the county court of jIcDuffle county. Said county court, on
his refusal (after a hearing) to give bond for the supjwrt of said
child, required him to give bond and security for his appear-
ance at the next term of the superior court of McDufRo county.
At said term an indictment was had against defendant charg-
ing him with "being the father of the bastard child, which
was begotten in McDulfie county, but born in Taliaferro
count}'; and the said child was then and there living, and of
the age of five months, and it was probable would become
chargeable to the county of Taliaferro, and defendant refused
and failed to give bond and security for the maintenance and
education of such child (he, the defendant, being then and there
in the county of McDuIHe), in terms of the law."

The defendant, on being arraigned, pleaded to the jurisdic-
tion of the court, alleging that the charge as set forth gave
jurisdiction to the county of Taliaferro, which plea on demurrer
was disallowed by the court, and defendant excepted.

Under the evidence and charge of the court the defendant
was found guilty, Avhereupon he made a motion for a new
trial, wliich was overruled by the court, and defendant ex-
cepted.

Under our view of the case, we do not consider it necessary
to notice the other grounds of alleged error set forth in the
record, save the question of jurisdiction raised by the })lea of
defendant The indictment charged that the child was bo-
gotten in McDuffie, born in Taliaferro, and was likely to
become chargeable to the county of Taliaferro. The indict-
ment was found and trial had in McDuflie county. In an
indictment for bastardy the gist of the olfense is the refusal or
failure on the part of the alleged fatiicr to give the bc^ul and
security to support the child sworn to be his. 58 Ga., 1U7. In
the case of Davis v. The State, 58 Ga., 171, Davis was in-
dicted for the offense of bastardy, in the county of Webster,
charged with being the father of two bastard cliildren, one
born and the other to be born, the one already and the other
likely to become chargeal)le to the county of AVebster. Tlio

WILLIAMS t'. THE STATE.

evidence shows that one of the cliiklren was begotten in Web-
ster county and born in Terrell, and the other child was be-
gotten in Terrell county and born in Webster county. The
court said : " The question in the case was not Avhere the chil-
dren were begotten, nor Avhere they Avere born, but the ques-
tion was, AVere the children born and likely to become charge-
able to Webster county? Was the defendant the father of
them, and did he fail or refuse to give the bond and security
when required in terms of the law, for their maintenance and
support in the county of Webster ? "

So in this case, it docs not matter where the child was be-
gotten or born, but in Avhat county was it likely to become
cliargcable as a bastard ? This is the county to protect by the
indictment and trial of tlie olfunder. The great object of such
an indictment is to protect the county from the support and
maintenance of a pauper bastard, or one who is likely to be-
come chargeable as such. The object sought, primarily, is not
to punish tlio olfender so much as it is to provide for such a
cliild that is or may become cliargcable. This is sought to
be done by indictment when the father refuses. Where should
this indictment be had? In the county sought to be protected,
and where the burtlicn is likely to fall. Each county, under
tlie law, is to provide for its poor, and this is one mode of pro-
viding for this class of its ])oor — by compelling the father to
do so. On a conviction had for this offense, the law provides
" tliat the line shall be paid over to the ordinary of the county,
to be by him improved and applied from time to time, as occor
sion may require, for the maintenance and education of such
ciiild or chihlren." Our conclusitm then is, the indictment and
trial must be ha<l in the county where the child is likely to be-
come chargeable, and that an indictment cannot be maintained,
tiled in one county, that alleges the bastard is likely to become
chargeable in another county.

By what authority does the county of ]\[cT)ufHe assume to
protect the county of Taliaferro from the cxi)cnse of a bastard
likely to become chargeable to tlu; latter county ? Why should
the county of A[cl)ullie bo taxed with the costs and ex|)ense3
ot ;i prosecution which is to inure solely to the benefit of Talitir
fcrro county? Sn(!h an interference with the regulations of
another county, anl such assumed guardianship of its interest,

AilERICAN CRIMINAL REPORTa

if not deemed to be officious, we must hold to bo at least un-
warranted in law.

Wo think, thevctore, the court erred in not sustaining the
plea filed to the jiirisdicticju. and, as a consequence, erred in not
granting- a new trial on this ground.

Let the judgment of tlio court below be reversed.

Note.— Defendant will not be pprrnitted to show that the plaintiff had
sexual intercourse with otliers outside of the time witliin which, according
to the cciurse of nature, the child could have been begotten. Kniijht V.
Morse, 51 Vt., 432; Sterling v. HUrUiirj, 41 Vt., SO.

The State v. Goxce.

(79 Mo., COO.)

Bigamy: Indictment — Evidence.

X. Indictment. — An indictment for bigamy drawn in the language of tho
statute is sufficient.

8. : Evidence. — On a trial for bigamy, the state, to prove the first mar^

riage, gave evidence tliat defendant and the woman lived together and
held themselves out to the world as man and wife for j'cars; that they
Lad a family of children living with them as their children; that sho
had signed and acknowledged deeds as his wife; and that after the
bigamous marriage she had sued for .•. divnice, he had answered, and
the court had granted her a divorce. Held, that tliia evidence was all
competent.

8. Parol evidence is admissible to show that a paper offered as a certified
copy of a decree is a forgevy.

4. Reason ADLE doubt.— In every criminal case the defendant is entitled to
an instruction as to reasonable doubt; and it is error for the court to re-
fuse it, no matter how cleai' the evitlence may K"em against him.

Appeal from Stone Circuit Court. Hon. W. F. Geigcr,
Judge.

Davis <& ITefernan^ for appellirnt.

D. II. 2feJntyre, attorney -general, for the state.

EwiNo, C. In 1870 the appellant was indicted for bigamy
In Stone county, was convicted and sentenced to imprisonment
in tho penitentiary for two years. He brings the case here
and asks its reversal : 1st. Because tho indictment is insuifi-
cient. '2d. Because the court admitted incompetent evidence.
fid. Because the court gave and refused improper instructions.

I. The indictment is sufficient. It charges the ollense spe-

riiE STATE V. GONCE.

cifically in the Irmguago of the Rtatuto. It contains all tho
elements necessary to constitute a valid indictment for bigamy,
" The grand jurors for the state of ]\lissouri, summoned from
the botly of Stone county, impaneled, charged and sworn, upon
their oaths present that Abraham K. Gonce, late of tho county
aforesaid, on the 10th day of April, 1877, at the county of
Stone aforesaid, did, unlawfully and feloniousl}', marry and
take to wife, one Martha Ann Keithley, and to her, tho said
Martlia Ann Keithley, was then and there married ; lie, tho
said Abraham R. Gonce, then and there having a Avifo liv-
ing, to V, it : JSlary A. Gonce ; against the peace and dignity of
the state." 2 Arch, Crim. Plead, and Prac, p. 181!), Poni-
croy's notes ; Commonwealth v. Jcnnin(js, 121 !Mass., 47 ; S. C,
23 Am. Rep., 219.

II. The evidence of tho first marriage consisted of livi.^g
together and holding out to (lie world the relation of man and
wife for years; that defendant called Mary A. Gonce his wifo
and treated her as such ; had a family of children living with
them as their children ; also tending to prove that the woman
had signed and aclcnowledged deeds as his wife; alio i-ccorda
of Olu'istian county, sliowing a petition for divorce by Mary
A. Gonce against A. 11. Gonce, his answer thereto, and tliD
judgment of the court granting the prayer of the petition in
September, 1878. Cai-(j!le v. Wood, OIJ ]\Io., 513 ; 11 Me., 391 ;
State V. McDoiurld, 25 Mo., 17<>. Tiie proof of the second
marriage was by the minister who solemnized it on the 10th
day of April, 1877, and al>;o tlie record of the marriage certifi-
cate.

Tlie defendant offered a copy of a decree of divorce of a
Kentucky court, dated in I8r)7, of A. II. Gonce against Mary
A. Gonce, whicli was not certified as tho law directs (R. S.,
1S7i>, ^ 2321), and was not com]vtent evidonce. but it was
introduced witliout objection on the part of the i»n>secution.
In rebuttal tiiereof the state called various witnesses, wlu»se ov'^
dence very strongly tendinl to prove that this pretended n^conl
and clerk's certill<'ate were in the handwriting of the defend-
ant. To this evidence the defendant objivted. There is nj
ol)jecti<m to this evidence. W barton, Crim. Ev. (Sth ed.\
^ji .">52, 5.'')3. There was no contradiction here of a vecord of a
court. If a genuine record, its contents cannot be changed o>

AMERICAN CRIMINAL REPORTS.

modifu d by parol. But any evidence is admissible to show, or
that tends to show, it is a fraud ; that it is, in fact, not a record,
but a forgciy. Thorn v. lamrmxce Co.^ SO Pa. St., 15 ; S. C,
21 Am. Rep., 89 ; Lowry v. McMillan, 8 Pa. St., lOi ; Wharton,
Crim. Ev., § 595.

III. Tlie instructions given on the part of the state were
substantially correct, and defendant was not injured by iliem.
But the defendant asked the court to declare the law in his be-
half as follows : " The burden of proof to establish the guilt
of defendant devolves upon the state, and the law clothes him
with a presumption of innocence which attends and protects
him until it is overcome by testimony wliich proves his guilt
beyond a reasonable doubt. By a reasonable doubt is meant
a substantial doubt, based upon the evidence or want of evi-
dence in the case, ar^d not a bare possibility of defendant's
innocence." This instruction should have been given. It is
the law in all criminal cases. That part of the instruction as
to a reasonable doubt is usually asked and given on the part of
the state, delining what is meant by a reasonable doubt. But
even though it may appear to the court there can bo no
grounds for a rcat;onable doubt, yet the accused must have the
opinion of the triers of the fact upon that question. This in-
struction should have been given for the defendant, and the
court committed error in refusing it.

The judgmen': must, therefore, be reversed and the case re-
manded ; the other commissioners concurring.

Note.— Evidence of fimt viarriagc. On fin indictment for bigamy, tho
first marriage may bo proved by tlie admissions of tlio jn-isoner; and it is
for the jury to determine wlietlier wliat ho said was an admission tiiat lio
had been legally married according to the laws of the country where tlio
marriage was solemnized. Miles v. United States, 103 U. S. , 304, and cases
cited.

As long as the fact of his first marriage is contested, the second wife is an
incompetent witness. Miles v. United Slates, supra. In Leg. v. Willshirc,
14 Cox, C. C, Ml, it appeared that tho jtrisoner in 1804 married E. In 18G8
prisoner was indicted and convicted for marrying A., E., his wife, being
then alive. In 187i) prisoner married B., and in 1830 he married C.

Prisoner was indicted for marrying C. in 1880, his wife B. alleged to be
then alive, and upon the trial the prisoner proved by a witness and the jiro-
duction of the record, that in 1808 his first wife, E., was then alive. The
judge, at the trial, ruled that this was no evidence tiiat E. was alive in 1879
when the prisoner mai-ried B., and that the prisoner was bound to show

WATSON V. STATE.

tlifit E. was alive in 1879 to entitle him to an acquittal. Ileld, on appeal,
that tlio qiu'stion was one for the jury wliotlior E. was alive or dead in 1879,
at tlic time of the last marriage, and that the conflicting presumptions of
the continuance of the life of E., after 1808, there being no evidence to the
contrary, and of the i>risoner being innocent and free to contract the mar-
riage in 1879, wore evidence for the jury to consider in determining the
question.

Jiiritidiction of the offense. The Missouri statute provides that "every
person, liaving a husban<l or wife living, who shall marry another person
without this state, in any case where such marriage would be punisliable if
contracted or solemnized within this state, and shall afterward cohabit with
such person within tliis state, shall be adjudged guilty of bigamy, and pun-
ishetl in the same manner as if the second marriage had taken place within
this state." And in State v. Fitzgerald, 75 Mo., 571, it was held that cohab-
itation within the state, by persons unlawfully married, does not of itself
constitute the commission of tlie crime of bigamy in the county where such
cohabitation took place, unless the second unlawful marriage was con-
tracted or solemnized without the state; that when such second unlawful
marriage was contracted within tlie state, the offense was cognizable only
in the courts of the county where it was contracted.

The Iowa statute provides that " if any person who has a former husband
or wife living, mairy anotlier person, or continue to cohabit with such
second Inisbund or wife in tliis state, he or she, except," etc., "shall be
guilty of bigamy," etc. And in Tlie State v. Iliiglies, 58 Iowa, 105, it was held
tliat a i)er.son may be indicted for bigamy in the county where the unlawful
mai'riage took place or in any county where he cohabited under the uiarriage.

"Watsox V. State.

(;]9 Ohio St., 123.)

BniBEnT: Indictment — DiqMcity — Instrudion — Vahie.

1. Tndictmknt not bad for unckutaintv.— An indictment, under section

0900, Revised Statutes, which charges that defendant corniptly offered
and promised to B., a member of tlie house of representatives of the
general assend)ly of tlie state, with the intent to corruptly and feloni-
ously influence iiis vote uijon a certain bill then jiending in such house,
"a valuable thing, to wit: stock of ihe Cincinnati Union Railway
Company, of the amoiuit and value of ij! 0,000, and a large amount of
money, of great value," is not bad for unc ^rtainty. It is not necessary,
in addition to such allegation, to recite the facts which give the thing
olfcred a value, nor to charge that a definite sum of money was offered.

2. Same — That dkfkndant was a memheu or the house.— A single count

in such indictment, which charged that B. was a member of the house,
and also a member of a standing committee of such house to which the
bill was referred, and that the offer or promise was made to influence
his vote therefor in the house, and his vote for a favorable report thereon

72 AMERICAN CRIMINAL REPORTS.

in tho comniittoo, is not bad for duplicity. Tho charge thus m.idc con-
stitutosi but one ofTon^io under the statute.
8. iNSTiiccTioN AS TO VALUE OF THING oFi •EUKD.— To charRO tho .iiuy, in a
trial upon bucIi inilictment, that the thing offered or promised must
have a value at the very time it is oilered or promised, and while tho
bill is peiuiiiig, is error, but not to tho prejudice of the defendant. It is
a crime, under section 0900, to offeror jironiisea thing valuable at that
time, cr which will be valuable when, according to tho promise, it Ls to
be given or delivered.

Dov:.!-, J. "Watson was indicted, under section 0900 of the
Revised Statutes, for offering a bribe to a member of the house
of rei)ie;entatives, to inlluence his vote upon a bill then pond-
ing in said house. The indictment contains two counts. Tho
first count charged, in substance, that tho defendant on tho
23d of March, 1SS3, during tlio pendency before said house
of a bill "Providing for the extension of the Miami and Erio
canal, and building and maintaining a railway through tho
city of Cincinnati," known as Iiouse bill No, 209, to corruptly
influence one William Bloch, a member, etc., to vote for said
bill, did corruptly olferand promise to said Bloch "a valuable
thing, to wit: stock of the Cincinnati Union Railway Com-
pany, of the amount and value of .320,000, and a largo amount
of money of great value."

Tli'e second count charged that JJloch Avas also a mem-
ber of the standing committee of the house on public works,
to which committee the bill aforesaid was referred. And that
for the purpose of influencing him as a member of the house
to vote for the bill, and as member of the committee to vote
for a favorable report on the bill, did corruptly offer and
promise, etc., repeating the offer in the language already quoted
from the first count.

At the January term, 1SS3, of the court of common jileas of
Franklin county, the defendant was tried and convicted on both
counts of the indictment. A motion for a new trial was made
and oviMTuled, and the defendant sentenced to a term in tho
penitentiary. He thereupon filed in this court a motion for
leave to lile a petition in error, to procure a reversal of that
judgment. During the progress of the case after tho indict-
ment, the defendant filed in the order named, a motion to
quash, a demurrer to each count of tho indictment, and a mo-
tion to require the state to elect, under the second count of the

WATSON V. STATE.

indictincut, which oiTcnse it wouhl proceed upon, assuming that
two distinct oircnscs were therein charged, each of wliich was,
at the projjcr time, overruled by the court, and exceptions
talcon by said derenchmt.

Tlic30 several ralings and orders of the court arc alleged to
be eri'or, and will be considered together, as each of said mo-
tions and demurrers Avas intended to present the question as to
the si'.lliciency of the indictment.

1. It is claimed that the second count of the indictment is
l):i(l for duplicity; that it cliarges separate and distinct oU'enscs.
That iittempting to bribe a member of a legislative committee
as to his action as such, was an olfenso at common law, and
tliat, as tlie indictment charges that this bill Xo. 209 was, at
the date alleged, in the committee, an ofl'er to bribe him as
such committeeman is a diU'erent oll'ense from an offer tobribo
hiiu as a member of the house. Hence, it is urged, the two
oH'cnses, both being indictable at common law, cannot bo
cliarged in one count.

Conceding that these acts constituted distinct offenses at
connnon law, the logishiturc has the power to make them ono
offense by statute. As v/e have no common law crimes in
Ohio, tlie inquiry is. Are there two crimes, made such by stat-
ute, charged in this count of tlio indictment^

The provision of the statute, § Ol)i)0, R. S., is as follows:
"Whoever corruptly gives, promises or offers to any member
ov ollicer of the general ass(imbly, or of either house thereof,
. . . either before or after his election, qualillcatiou or ap-
pointment, any valuable thing ... to inlluence him with
rei'.poct to his ollicial duty, or to influence his action, vote, opin-
ion or judgment in any matter pending or that might legally
come before him," etc.

What is charged in this second coimt is that the offer was
made to Bloch, a membcu' of the house, and also a member of
the committee of such house, to induce him to vote for the bill
aiul to vote for a favorable report in the committee. AVithin
the meaning of this statute the meml)er does not occupy tho
dual character claimed for him. What he does in committee ho
does as a represi^ntativc, the committee being but a subdivision
of the legishitive body for certain j)urposes. among which is
that of examining hills and repoi'ting to the whole body upon

IMAGE EVALUATION
TEST TARGET (MT-3)

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14.0

2.5
2.2

2.0

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fliolographic

Sciences

Corporatton

23 WIST MAIN STRin

WIISTIR.N.Y. 14SM

(716)S72-4S03

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J^^

AMERICAN CRIMINAL REPORTS.

their merits. To attempt by a bribe to influence his vote upon
a pending bill, either in tlie committee of which he is a mem-
ber, or in the house when the bill is put to a vote, is a crime
under this statute. To allege eitlier, without the other, would
be good. To allege the bribe was ollered to induce the member
to do both is certainly good.

2. It is further urged that the indictment does not sufR-
ciently charge that anything of value was offered, because it is
not cliargcd that the Cincinnati Union Eailway Company was,
when the offer was made, legally incorporated oi: authorized
to issue stock, nor any fact which imported present value to
such stock; nor, it is said, is it charged that any si)ecillc
amount of money, having a value expressed by a sum certain,
was offered; the term "a iai-gc amount of money of great
value " being too indefinite for good pleading. AVe think the
objection is not Avell taken. It is not necessary to allege or
prove the quantity of value, where that is not an essential cle-
ment of the crime. Under the statute it is not material whether
the value of the thing offered is great or small, if it is in fact
valuable. To offer $1 for the corrupt purpose- of ii llucncing
the vote of a legishitor is as complete an offenso as to offer
$100. Money necessarily imports value. Tlic term "any-
thing of value" includes money, in this state, by express
statutory provision. R S., § OTOJ:. Hence, the distinction
does not exist here, which is found in some states, botweeu "a
thing of value " and " money " in an indictment. IJcudiiig these
two sections of the Revised Statutes together, and testing
thereby this part of the offer, the result is the same as if § iVMO
read: "Whoever corruptly offers any money." The rei|uiro-
ments of the statute, to constitute the crime, are fully met by
allegation and proof that the defendant olTercd a large sum of
money. A promise or offer in just that language, without
naming any definite sum, with the corrupt purpose of in llucnc-
ing the vote of the member, would bo a crime under this stat-
ute, and the indictment need not charge more.

We will consider the offer of the stock when wo como to
treat of the charge of the court.

3. Upon the trial, and before the close of the argument, the
defendant asked the court to chai'ge the jury as follows :

" The jury, bef.ire they can convict the defendant, must find

that aboil
to corrup
of Wiliiai
offer him
you musi
antl that
if there \
sustain tl
fondant, ;
Bloch a
offers, or
WJ's actui

Tills cl
jury that
was a ])rc
controUii
this bill ;
Avas proir
was of s?
little it 1
timo of tl
that you
timo it w

The re;
sitions, '
a spesilio
pending 1
claim ma
tlio house
of. As a
quest, wli
refused,
that llief
time it w
language
error, tlu^
ant; it w
evil of til
uni)rovi(l
forms of

WATSON V. STATE.

that about the 23d of March, 1882, the defendant, with intent
to corruptly influence the vote, opinion, judgment and action
of William Bloch as a member of tlie general assembly, did
olTer him stock of Cincinnati Union Railway Company, and
you must further find that there was suc'.i stock in existence,
and that it had some value ; or if there was no such stock, or
if thoi-e was such stock and it had no value, then, in order to
sustain the indictment and warrant a conviction of the do-
fuiulaut, you must find that the defendant olferod to William
Bloch a spociliod or delinite sum of money, and that such
offers, or one of them, were made while house bill No. 209
W!'s actually pending bofoi-e the house of representatives."

Tliis charge the court rofusctl to give, but did ciiarge the
jury that " the state, in order to convict, must show that there
was a ])romiso or offer made to said Bloch for the purpose of
controlling or influencing his vote and legisk.tive action upon
this bill ; and it must further show, if you iind that anything
was pi'omiscd oi* olfored, that the thing promised or offered
was of some value. It docs not matter how much or how
littlo it may have been, but it must bo of some value at the
tinn of the promise or offer." And again, " I will charge you
that you must find that the thing offered had a value at the
tinio it was so offeredj and the bill ponding."

The re:piest of the defendant containeil three distinct propo-
sitions. Two of them, vi/.., tliat the offer of money must be
a s[)e3iliod and definite sum, and that the bill must be actually
pending before tlie house, hy which was meant (in view of the
claim made thereon by defendant's counsel on the trial) before
the house, and not in the committee, we have already disposed
of. As all of the propositions were contained in a single re-
quest, which, in these respects, was erroneous, it was properly
refused. The third proposition in defendant's request, vi/.,
that (ho stock or thing offered must have a value at the very
time it was offered, was given by the court in much stronger
language than tliat contained in the re(piest. There was no
error, therefore, in the charge to the prejudice of the defend-
ant; it was much more favorable to him than the law is. Tiio
evil of the charge is, that it so construes the statute as to leave
unprovided for, and allow to go unpunished, the very worst
forms of bribery.

AMERICAN CRimNAL REPORTS.

It was proved on the trial that the organization of the Cincin-
nati Union Railway Company had not boon legally porfectcd as
provided by section 3211 of the Revised Statutes, and henco
its stock had not yet been legally issued. The effect of the
charge given, tlierefore, was practically to take this part of the
case from tlio consideration of the jury. Bat the proposition
to a legislator, in a case of this kind, may be, in effect, that if
he will use Lis influence and vote, as a representative and coni-
mittcoman, to obtain a grant of a valuable franchise from the
state, he sliall be paid therefor a part of the grant, or that
which represents a part of the grant, to wit, stock in the com-
pany incorporated to receive the gi*ant; a very dangerous
species of bribery, although such stock may not at the time of
the promise be in existence.

The offer in this case, if it was made, to give stock in this
company to the amount and of the value of $20,0:)0, involved
a promir^e that at the time of delivery it should be legal stock
and valuable. To offer or promise to give a thing, and, in
connection therewith, to promise to do some act before the
time the thing is to be given, Aviiich will give it value, or to
offer a thing in the future whicli, at tlie time agreed upon for
delivery, will hav^e a valu'o, is to offer a valuable thing.

Suppose tliere was nothing illegal or improper in the contract
proposed in this case, but it could be enforced as any other
valid contract in an action by Eloch agninst defendant for the
contract price for his services, alleging that it had been entered
into and fully performed by him. AVould it be any defense to
say: "True, I promised you stock in the railway company, not
only to the amount but of the value of $20,000; but the com-
pany was not then legally organized, and its stock then liad no
value; hence I did not agree to pay you any tiling of value?"
Would he not rather be held to have agreed that when the time
of performance on his part arrived, there should be such stock
legally issued, and that it would be of the value named, and
upon his failure to fulfd such agreement be lial)le to a judg-
ment?

This statute, like other criminal statutes, must be strictly
construed, so that no act shall be hold under it to be a crime
not within its letter; but it must also bo reasonably construed,
and the words used in it be given their fair import and mean-

ing. The
would ])er
was rocor(
isor wouk
procure A
for the ca]
the projec
or give hi:
out of so
thereby t(
thing offo
it may be
ered, and 1
have its c
l)i'ibcry.

AVhen t
promising
when it is
of the off(

4. It is
mony. "\^
termining
amended .
sections 4
prohibits
fore the p:
its place <
of the sec

Note.— Ii
for cnil)czzl(
the corpora
owner of th
law should 1
there is a in
the officer o

WATSON V. STATE. ff

ing. The construction given to it by the court in this charge
would ])erinit a man to promise a legislator that after, his vote
WHS recorded a p;ivticular way upon a pending bill, the prom-
isor -would execute to him a negotiable promissory note, or
procure A. or V>. to execute and deliver sucli note, or subscribe
for the capital stock of a corporation, which the promoters of
the project were about to organize, and deliver him such stock
or give liim a poi'tion or jiercentage of whatever was realized
out of some venture, to be aided by the legislation sought
thereby to be corruptly influenced, and escape liability. Tlio
thing offered must be a thing of value; but of value when?
It may be a thing of great value at the time it is to be deliv-
tn-ed, and have no existence at the time of the promise. It wiU
JKive its evil iulluenco and be as pernicious as any form of
bi'ibcry.

AVhen this statute, therefore, prohibits giving, offering or
prouiising anything of value, it must be held to mean of value
wlien it is given, offered or promised, or when, by the terms
of the offer or pi'omise, it is to be given.

4. It is claimed the verdict is against the weight of testi-
uiony. "We cannot examine the record for the purpose of de-
termining that question. Section T35G, Revised Statutes, as
aniended April IS, 1883, by the act entitled " An act to amend
sections 455,0710,0711 and 7350 of the Revised Stotutes,"
prohibits such examination. While this motion was filed be-
fore the passage of that act, if we grant it, and the case takes
its place on the docket, it Avill be governed by the provisions

of the section as thus amended.

• Ifotion overruled.

Note.— In Alden v. TJie State, 18 Fla., 187, it is held on an indictment
for cnihczzlement of public funds by an officer, that the corporate name of
the corporation as fixed by law should appear in the indictment as the
owner of the funds, and the name of ofRce of such officer as juescribed by
law shovdd bo truly stated. That judgment will be arrested when it appears
there is a misnomer in either the name of the corporation or in the title of
the officer of the corporation so charged with embezzlement.

78,

AMERICAN CRIMINAL REPORTS.

GuTUEiE V. State.

(10 Neb., 607.)

Bribery: Indictment— Variance— Evidence.

1. Indictsient referring to third person as unknown.— At common

\a.\\ , in cases where an indictment referred to third parties as persons to
the gi-and jury unknown, if, upon the trial, it was made to appear tliat
the grand jury did know the names of the persons referred to, the ac-
cused would have to be acquitted on the ground of a variance between
the allegations of the indictment and tlie proofs. But it was not neces-
sary for the state to prove the truth of the allegation beyond a reason-
able doubt.

2. Same — Variance not fatal.— The indictment in this case alleged that

the sum of $300 was paid to plaintiff in error as a bribe by one C. B.,
" and others whose names ai-e to the giand jurors unknown." The
proof showed that the money was paid by C. B. for the purpose alleged
in the indictment. Held, that the variance was not fatal, and tlir.t the
district court was justified, under the provisions of section 413 of the
Criminal Code, in disregai'duig it.
8. Bribery — Evidence. — Under the allegations of the indictment, and
the circumstances of the case as shown by the testimony, it was
held competent for the state to prove other acts of bribery than those
alleged in the indictment, for the purpose of corroborating the principal
witness upon material facts involved in the original contract of bribery,
and also for the purpose of showing the system, plan and design of the
parties involved in the transact ° i alleged iu the indictment.

Error from Douglas County.

C. A. Baldwin, for plaintiff.

Isaac Powers, Jr., attorney-general, for defendant.

Reese, J. The plaintiff was indicted by the grand jury of
Douglas county for the crime of receiving a bribe. Upon trial
he was convicted and sentenced to the penitentiary. lie now
prosecutes error in this court, alleging vai'ious errors, which
will be noticed in the order presented by his brief. As the
principal objections made by plaintiff in error either apply
directly to or in some way refer to the allegations of the indict-
ment, Ave quote the charging part thereof, which is as follows-
"That the said Roger C. Guthrie, in the city of Omaha," etc.,
" being then and there a ministerial ollicer, to wit, the city mar-
shal of the city of Omaha, duly and legally appointed, con firmed,
qualified and sworn to discharge the duties of that office, it
being an office of importance and trust concerning the admin-

GUTHRIE V. STATE.

istration of public justice, law and order within said city,
count}'^ and state, contriving and intending the powers and
duties of his said office, and ^ he trust and confidence thereby re-
posed in him, to violate, prostitute and betrt^y, and contriving
and intending then and there the powers and duties of his said
ollice to discharge and perform with partiality and favor, and
contrary to laAv, did then and there, Avith the intent aforesaid,
unlawfully, knowingly, corruptly and feloniously take, accept
and receive from Cliarles Branch and others, whose names are
to the jurors unknown, the sum of $300 in money, of the value
of $300, as a bribe and pecuniary reward offered and given by
the said Charles Branch and others, and by the said Ilogcr C.
Guthrie talcen, accepted and received with tlie intent and pur-
pose Lo induce him, the said Roger C. Guthrie, in his office
aforesaid, to permit, authorize and allow certain gamblers, to
Avit, Cluii'los S. Iliggins, Sctli C. Baldwin, Hiram B. Kennedy,
Goodley Bi'ocker, James Morrison, William Soderstron, Charles
Brancli and otlicrs to tlie grand jurors unknoAvn, to keep, use
and occupy buildings and rooms for the purpose of and devoted
to gambling, to exhibit gaming tables, gaming establislnnents,
gaming devices, and other apparatus to Avin and gain money,
and to carry on, conduct and prosecute the habit, practice and
profession of gambling in the corporate limits of the city
of Omaha, and to induce and influence him, the said Eogcr 0.
Guthrie, then and there and thereafter, not to arrest nor cause
to be arrested the said gamblers, and to keep and protect them
from arrest and punishment, and free, clear and exempt from
municipal or police molestation, interference or attack Avhile
engaged in the business, ])ractice, and profession of gambling
as aforesaid, in violation of laAV,'" etc.

The first ])oint presented is tJiat the indictment charges that
the contract of bribery Avas made Avith, and the money paid by,
Charles Branch, " and other persons to the grand jurors un-
knoAvn;" and no proof AA-as offered by the state, on the trial, to
show that the allegation referring to the persons " to the grand
jurors unknoAvn" Avas true. Plaintiff in error requested the
court to instruct the jury as folloAvs : " Tiie jury are instructed
that one of the allegations of the indictment is that the money
charged to haA'e been receiA^ed by the defendant as a bribe Avas
so paid to him by Charles Branch, and other persons ay hose

AMERICAN CRIMINAL REPORTS.

namos are to the jurors unknown, Tliis is a material allega-
tion in the indictment, and unless you are satisfied beyond a
reasonable doubt that that allocation of tijo indictment is true,
it is your duty to acquit the defendant." This instruction was
refused by the court, to which plaintiff in error excepted, and
now as3i<i;ns such refusal as error.

Upon the question liere presented avo have only to say that
if the doctrine of the common law was in force in this state,
yet wc could not hold the action of the court in refusing the
instruction to bo erroneous, for the reason that the instruction
does not correctly state the law. It attaches too much iinpor-
tanco to the allegation in question. While it is, perhaps, true,
at common law, that if it was shown that this particular
allegation was untrue, — that the grand jury did know the
parties whose names were omitted, — then that an acquittal
must follow ; but it by no moans follows that this allegation,
like those which are met by the presumption of innocence,
must bo proved by the state beyond a reasonable doubt. Upon
the contrary, quite a different rule is to be applied, and the
burden is on the defendant to show that the grand jury, at the
particular time of linding the indictment, knew the names of
the parties described as imknown. Cotii. v. Gallo'/hei', 120
Mass., 54:; Com. v. Hill, 11 Cush., 137; Com. v. Tompxnn^'i
Cush., 551; Rex v. Bush, Russ. & 11. Cr. Cas., 372; Whart.
Crim. Ev., § 97. The doctrine contended for by plaintiff in
error can bo found in Stime v. State, 30 Ind., 115 ; but Wharton,
in his work on Precedents of Indictments and Pleas, vol. 1,
p. 18, refers to this decision as pushing the doctrine to a " ques-
tionable extreme ; " and such is evidently the case.

The indictment in this case specifies the payment of tlio
money by Branch, and this allegation is fully sustained by the
proof. Branch testilies that ho paid the money to plaintiff in
error for the corrupt purpose stated in the indictment. The
fact that the pleader, prompted, possibly, by overcaution on
account of the peculiar character of his testimony and the
uncertainty which naturally suggested itself as to its reliability,
followed the name of Brancli by the words referred to, could
not possibly work any prejudice to plaintiff in error. IhiT,
suppose the doctrine of the common law ajjplied ordinarily to
the clause in question with all the force claimed by plaiiitiff

m error,
under tl
That sec
ment foj
between
offered i
both Chi
any pers
name or
named o
for an j
which th
material
dcfendan
l)efore ua
result in
It is in
mitting t
bribery v
pal contr
it must b
money b\
at ion foi
tlioir busi
not only
(luring a
that plaii
stand tlia
would ha
Branch p
that the
business s
$300 was
the busin
was paid,
the agent
as the re
them pla
would tej
liim mon(
Vo

GUTHRIE v. STATE.

in ciTor, the decision of the district court would still be correct
under the provisions of section 413 of the Criminal Code.
That section is as follows : '* Whenevei, on trial of any indict-
ment for any offense, there shall appear to be any variance
between the statement of such indictment and the evidence
offered in proof thereof, in the Christian name or surname, or
both Christian and surname, or other description whatever of
any person whomsoever therein named or described, or in the
name or description of any matter or thing whatsoever therein
named or described, such variance shall not be deemed ground
for an acquittal of the defendant, unless the court before
which the trial shall be had shall find that such variance is
material to the merits of the case, or may be prejudicial to the
defendant." Tliis section ends all dispute as to the question
l)cfore us, as the variance is one whicli could not in any event
result in any prejudice or injury to plaintiff in error.

It is insisted by plaintiff in error tliat the court erred in per-
mitting the state to prove other, separate and distinct acts of
bribery which it is claimed were not connected with the ])rinci-
pal contract alleged in the indictment and proved on the trial.
It must bo observed that the indictment charges the receipt of
money by plaintiff in error as an inducement to and consider-
ation for allowing certain persons to carry on and jirosecute
their business of keeping gambling-houses unmolested by him,
not only at the time at Vv'hich the money was received, but
(luring a time in the future. The testimonv of Branch shows
that plaintiff in error approached him and gave him to under-
stand that money would have to be paid or the gambling-houses
would have to close up. The testimony shows further that
Branch paid him the $000, and at the same time it was agreed
that the gambling-houses might continue to carry on their
husiness so long as they paid $50 per month each ; that the
$300 was only to pay up to a certain date, and after that date
the business should bo continued, providing the $50 per month
was paid. The testimony shows that Branch was in one sense
the agent of plaintiff in error in these transactions, as well
as the representative of other gamblers. When accosted by
tliem plaintiff in error directed them to see Branch, who
would tell them what to do, and when they wanted to pay
him money in pursuance of the contract made with Branch,
VoL,IV-6

AMERICAN CRBUNAL REPORTS,

he told them to do as they had done before — see Branch. It
is clearly shown that the agreement was a continuing one, and
contemplated a system of payments to bo made in the future,
and for whicli the same course was to be pursued by plaintiff
in error as for the $300. It was known by plaintilf in error
when Branch received money, and no gambling-house was
molested after its share of the money had been paid. Ho was
fully advised of what occurred in the workings of the plans
and designs, not only at the time of the receipt of the §300,
but at all times, so long as the system under which they were
working continued. This system was fully developed and ex-
posed by Branch in his testimony. It was properly admitted
as a part of the transaction in which the $300 was paid by
Branch to plaintif" in '^iTor. The fact of the carrying out of
this system was propar evidence for the purpose of corrobo-
rating the testimony of Branch and showing the purpose,
underetanding, and intent with which the money was received
as alleged in the indictment, and for the puqiose of showing
the system under which these several transactions were had.
For these purposes the testimony was competent. State v.
Bridgman, 49 Vt., 202 ; Thayer v. Thayer, 101 Mass., Ill ;
Kranwr v. Com., 87 Pa. St., 299 ; Rex v. Ilough, Russ. & R.
O. Cas., 120 ; Rex v. Ball, id., 132 ; Com. v. Prlce^ 10 Gray,
473; Rex v. Francis, 12 Cox, Crini. Cas., G12 ; Reg'uia v. Gar-
ner, 4 Fost. A: F., 34G ; Whart. Crini. Ev., § 38 ct seq.

It is next claimed that the prosecution should have been
under section 105 of the act for the incorjioration of cities of
the first class (Comp. St., 102), instead of under section 175 of the
Criminal Code. Section 175 of the Criminal Code makes
the act of receiving a bribe by an oilicer a crime, and provides
the punishment tlierefor. This section is of unifonn operation
throughout the state, and applies to all cases of the kind.
Section 105, above referred to, is limited to city oflicers, and is
mainly intended to prohibit the officers of such city from being-
interested in contracts for improvements, etc., entered into by
the city, and to prohibit them from accepting or receiving
anything of value for their influence or vote. It has no appli-
cation to cases of tlie kind under consideration.

The judgment of the district court is affirmed.

STATE V. SHAFFER.

State V. Shaffeb.

(59 Iowa, 290.)

BonaiiAKY: Indictment for compotind offense — Possession of goods recently

stolen — Presumption.

1. Burglary— Indictment, avhen not bad for duplictty.— Wlicre de-

fendant was found guilty on an indictment charging that he broke and
entered a barn in which wore certain goods, etc., with the felonious in-
tent to take, steal and carry away said goods, etc., and did feloniously
take, steal and carry away certain of the goods, etc., and the court in-
structed the jury that " the charge in the indictment that the defend-
ant stole goods is for the purpose of charging the public offense he
intended to commit, and the larceny, if any, may be shown and consid-
ered for the purpose of showing the intent of the defendant in break-
ing and entering said building," a motion in arrest of judgment, because
the indictment cliargod two offenses, was denied; following State ?>.
Hai/den, 45 Iowa, 11, and distinguishing A^tefe v, Ridley, 48 Iowa, 370.

2. Possession of goods recently stolen not of itself sufficient to

WARRANT conviction OP BURGLARY. — Tho presumptiou of guilt which
arises from the possession of goods recently stolon is applicable to the
crime of larceny, but not tho crime of burglary; and while it is compe-
tent evidence tending to show that the defendant committed the burg-
lary, it is not, of itself, sufficient, even if tmexplained, to warrant a
conviction.

Appeal from Henry Distinct Court.

The indictment in this case charges that the defendant broke
and entered the burn of J. M, Holland, in which barn goods
and merchandise and other things of value were kept for use,
sale and deposit, witli the felonious intent to take, steal and
carry away the goods, merchandise, and other valuable things,
and twenty bushels of wheat of the value of $14, six sacks of
tiic value of 82, and one bridle of the value of $1.50, of the
goods of J. ]\r. Holland, did feloniously take, steal and carry
away, etc. There was a verdict of guilty and judgment thereon,
from wliich the defendant appeals.

Z. O. ib L. A. Palmer, iav appellant.

Smith IlcPherson, attorney-general, for the state.

HoTHRocK, J. 1. The defendant, after verdict, moved in
arrest of judgment on the ground that the indictment is in-
sufficient and void. The motion was overruled, and the de-
fendant assigns the action of the court in overruling the same

AMERICAN CRIMINAL REPORTS.

as error. He insists that the indictment is bad for duplicity,
in that it charges a felonious breaking with intent to connuit
larceny, and also tlie commission of larceny.

In State v. llaijden, 45 Iowa, il, an indictment which was in
substance the same as that in this case was sustained. It was
held that the cliarge of stealing might be regarded as a mere
pleadiiig of evidence or surplusage, whicli might have been
properly introduced in support of the char<,o of an intent to
steal. That case was tried upon that theory in the district
court, and the jury were instructed that the defendant was on
trial for breaking and entering the building Avith intent to
steal, and he a as found guilty of that offense. The some may
be said of the case at bar. The court instructed the jury tluit
"tlie charge in the indictment that the defendant stole
goods is for the purpose of charging the public offense he in-
tended to commit, and the larceny, if any, may be shown and
consi<lered for the purpose of showing the intent of the de-
fendant in breaking and entering said building." This case is,
then, in strict accord with the rule laid down in IlaydevUs Case.
Afterwards, in State v. Bidley, 48 Iowa, 870, in an indictment
substantially the same as in Hayden^s Case and the case at bar,
the court instructed the jury that three crimes were charged
in the indictment : (1) Larceny in a store in the night-time ;
(2) breaking an^l entering a store with intent to steal; and (.*>)
simple lai'ccny. The defendant was found guilty of larceny
from a store in the night-time. It was urged in that case that
the conviction Avas proper, under the indictment, because the
crime charged was a compound offense, and that, under section
4300 of the code, the several offenses included in the compound
offense could properly be charged ,n the same indictment. We
there held tliat burglary and larceny were not a compound
offense, and that, as the defendant was convicted of the lar-
ceny on an indictment for feloniously breaking and entering a
building, the conviction could not stand. The question in the
last-named case, so far as it involved the sufficiency of the in-
dictment, Avas confined to the inquiry Avhether or not the crime
charged Avas a compound offense. It having been held that it
Avas not a compound offense, under the rule in IlayderHs Case,
the defendants Avere convicted of a crime Avith Avhich they
were not charged. We think the indictment in this case Avas

vi:

STATE V. SHAFFER.

sufficient to support a verdict of guilty of the felonious break-
ing of the building.

2. Upon the question of the possession of the goods recently
stolen, the court instructed the jury as follows : " And if the
burn was closed up at night, so that it could not be entered
without breaking, and it was so closed at 9 o'clock at night,
and at about 12 o'clock of the same night some of the goods
kept in said barn during this time were found in the possession
of the defendant, or the defendant and others, this would be
prima facie evidence that the defendant broke and entered
said building ; and this alone, in the absence of othor evidence,
and the possession not explained, showing it to be an innocent
jtossession, would be sutHcient to warrant a conviction of the
crime charged." The substance of this instruction is that the
possession of goods recently burglariously stolen is, of itself,
if unexplained, suiiieieut evidence upon which to find the de-
fendant guilty of the burglary. We think the presumption
wliicli ai'ises from the possession of goods recently stolen is ap-
plicable to the crime of larceny, but not the crime of burglary.
The most that can be said of it is tluit it is evidence tending
to show that the defendant committed the burglary. It surely
was comj)etent evidence bearing upon the guilt of the defend-
ant; but that it was, of itself, sufficient, if unexplained, to
warrant a conviction, appears to be without the support of au-
thority, but directly contrary thereto, -/ones v. /State, Parker,
125 ; Whait. Crim. Ev., § 703 ; Inf/all v. State, 48 Wis., 047 ;
Steicart v. People, Sup. Ct. Mich., 3 K W. Rep., 803 ; 2 Bishop,
Crini. Proc, § 747, note 3.

For the error in this instruction the judgment of the district
court must be reversed.

Note.— In Taliaferro v. The Commomrcalth, 77 Va.,411, it is held tliat
the ijdssossion of goods recently stolen creates a presumption that the person
found in possession of them is the thief. " But it has never been decided
in this state that such possession is even prima facie evidence of guilt in
ciuses of burglary ai:d house-breaking."

But where gootls have been feloniously taken by means of a burglary,
and they are immediately or soon thereafter found in tlie actual and ex-
clusive possession of a person who gives a, false account, or refuses to give
any account, of the mamier in which he came into possession, proof of such
possession and guilty conduct is presumptive evidence not only that he stole
the goods, but that he made use of the means by which access to them waa
obtained. Dan's v. The People, 1 Paiker, Cr. Cas., 447.

AMERICAN CRIMINAL REPORTS.

The State v. Martin.

(76 Mo., 337.)

Burglary and larceny: Autrefois convict— Crime, grades of.

1. Autrefois convict— When no bar.— As burglary and larceny com-

mitted at the same time are separate and distinct offenses, a conviction
of one is no bar to a prosecution for the other.

2, Burglary and larceny — Crime consisting of deorees.- Under the

Revised Statutes of Missom-i, sec. 1053, wliich provides " that if upon
the trial of any person for any misdemeanor it shall appear that the
facts given in evidence amount in law to a felony, such person by reason
thei-eof shall not be entitled to be acquitted for such misdemeanor; and
no person tried for such misdemeanor shall be liable after^vard to bo
I prosecuted for felony on the same facts, unless the court shall think fit
I in its discretion to discharge the jury from giving any verdict upon such
trial, and to direct such person to bo indicted for a felony, in which case
such person may be dealt with in all respects as if he had not been put
upon his trial for such misdemeanor," lield, that this section has no ref-
erence to independent offenses, but has application to that class of
offenses of which there are different degrees or grades, and of which
grades or degrees the misdemeanor charged is one — that it would apply
to petit and giand larceny, but not to burglary and larceny.

Error to Jackson Criminal Court. Hon. Henry P. White,
Judge.

3L Campbell, for plaintiff in error.

D. II. Mclntyre, attornej'^-general, for the state.

Norton, J. The defendant was indicted at the November
term, 1881, in the Jackson county criminal court, for burglary
and larceny. The indictment contained but one count, which
charged the commission of both burglary and larceny.

The defendant, in addition to his plea of not guilty, also put
in a special plea in bar, averring therein that on tlie 17th day
of October, 1881, J. W. Childs, a justice of the peace within
and for said county, issued his warrant for the arrest of defend-
ant on a charge preferred for petit larceny; that he was
arrested by virtue of said warrant, was tried and convicted of
petit larceny of the same goods and chattels whicli he is
charged with stealing in the said count of said indictment; that
on the trial before said Childs all the facts of the transaction
on which the indictment is founded were brought out in evi-
dence, but that said Childs nevertheless proceeded to try

THE STATE v. MARTIN.

defendant for petit larceny, of which he was convicted and
punishment ausessed.

Upon the trial of the cause defendant was convicted of
burglary, and his punishment assessed at five years' imprison-
ment in the penitentiary, the court having in effect instructed
the jury that un<ler the defendant's plea of autrefois convict
they could not lind defendant guilty of the larceny charged,
but might iind him guilty of the burglary, if they believed
from the evidence that he committed it. From the judgment
rendered det'cncUint has prosecuted his writ of error, and the
sole question presented by the record is whether the convic-
tion of the defendant of petit larceny, as set forth in his special
plea, was a bar to a subsequent prosecution for the burglary?

The solution of this question depends upon the fact as to
whether the indictment charges but one or two distinct and
separate offenses. If the larceny charged, in law, is so com-
bined Avith the burglary as to make the charge simply an ag-
gravated burglary, the plea relied upon is an effectual bar to
the prosecution. But, if the said burglary and larceny are
each distinct offenses, the plea, while good as to the larceny, is
bad as to the burglary, as tlie plea of mitrefois convict must
allege and the proof must show the offense for which the defend-
ant was convicted is the offense alleged in the indictment. 62
Mo., 592. That the burglaiy and larceny alleged to have been
committed by defendant are separate offenses has been decided
by this court, in the case of State v. Alexander, 50 Mo., 131,
where defendant was in the same count charged with burglary
in the first degree and also with larceny. He Avas convicted
of burglary in the second degree and also of larceny. The
judgment was affirmed as to larceny, but reversed as to the
burglary, on the sole ground that defendant was convicted of
burglary in the second degree, while the indictment charged
burglary in the first degree. They were thus treated as sep-
arate offenses. So, in the case of The State v. Barker, CA Mo.,
283, where thr indie cmcnt contained one count charging defend-
ant with burglary and larceny, it was held that the court prop-
erly instructed the jury that they might find defendant guilty of
the larceny and acquit him of the burglary. It necessarily fol-
lows from the ruling in said cases that the two offenses are dis-
tinct, for if they constituted but one offense, an acquittal of the
burglary would also be an acquittal of the larceny, and vice versa.

TH"^ ; SO?; «Y OF

JilE Ui ;«OCif.TY

AMERICAN CRIMINAL REPORTS.

This conclusion is not, however, left to logical deduction, as
in the case of State v. Bruffey, 75 Mo., 880, it was expressly
held that " burglary and larceny are two distinct and inde-
pendent oifcnses. The Eevised Statutes, section 1301, permits
a prosecution for botli in the same count or in separate counts,
but nowhere intimates that the two may be regarded as one
offense. On the contrary, provision is made in the same sec-
tion for a separate assessment of punishment for each of the
two crimes." The case last cited and that in 02 Mo., 502, fully
sustained the action of the trial court in holding that the plea
in bar, while good as to larceny, was bad as to the burglary.

In the case of Wilson v. State, 21 Conn., 57, after an ex-
haustive examination of tlie question, it was held that the con-
viction of a person for petit larceny committed at tlie same
time a burglary was committed, was not a bar to a subsequent
prosecution for the burglary ; and in case of Com. v. liahi/, 1 2
Pick., 400, it was held that a plea in bar is bad if the offenses
charged in the two indictments be perfectly distinct in point
of law, however closely they may be connected in point of fact.

It is claimed by counsel that tlie plea in Ijar was effectual
as to both offenses under section 1053, Eevised Statutes, which
provides " that if upon the trial of any persiMi for any misde-
meanor it shall appear that the facts given in evidence amount
in law to a felony, such person by reason thereof shall not
be entitled to be acquitted of such misdemeanor; and no
person tried for such misdemeanor shall bo liable afterward to
be prosecuted for felony on the same facts, urdess the court
shall think fit in its discroti(m to discharge the jury from giv-
] \g any verdict upon such trial, and to direct such person to
be indicted for a felony, in which case such person may be
dealt with in all respects as if ho had not been put upon liis
trial for such misdemeanor."

This section has no reference to an independent offense which
may be disclosed by the evidence relating to the misdemeanor
charged, and for Avhioh a party is on trial, but has ai)plication
to that class of offenses, of which there are different degrees
or grades, and of which grades or degrees the misdemeanor
charged is one. The present case affords an illustration of its
meaning. There are two grades of larceny, one grand and
the other petit larceny, one a felony and the other a misde-
meanor. Defendant was tried by the justice on a charge of

THE STATE v. MARTIN.

petit larceny ; the evidence adduced in siippor<^ of the charge
showed that the larceny being committed at the same time a
burglary was committed, was grand larceny, and, therefore, a
felony. The justice might, under the statute, have discharged
the jury and bound the defendant over to answer an indictment
to be preferred for the higher offense. Thib '\e did not do, but
tried and sentenced him for the misdemeanor, and thereby
exempted him from further prosecution for the higher grade
of larceny charged by the indictment. Judgment affirmed,
all concurring.

Note.— In Tlie State v. Bmffey, 11 Mo. App., 79 {S. C, affirmed, 75 Mo.,
liSO), the defendant wa.s indicted for burglary and larceny i'- one count, as
permitted by the statute, and convicted of larceny. His mol^jn for a new
trial was allowed, and he was subsetpiently placed on trial for both offenses,
f!onvieted and sentenced to tlie penitentiary thiee years for the burglary, and
two for the larceny. The appellate court reversed the case as to the burglary
iiiul affirmed it as to the larceny. Lewis, P. J., delivering the opinio" of
the court, said : " The defendant was indicted for burglary and larceny, both
otlenscs being chargeil iii one count. Upon trial before a jury he was con-
victed of tlie larceny, but acquitted as to the burglary. His motion for a
new trlfil w;is sustained, and at a subsequent term he was again tried on the
same indictment and found guilty of botli burghuy and larceny. It is
assigned for error that the defendant coukl not lawfully be convicted of
burglary on the second trial, after his ac(piittal of that offense on the first.
Burglary and larceny are two distinct, separate and independent oifenses.
The statute (R. S., § IJJOl) permits a prosecution for both in the same count,
or in separate counts of the same indictment, but nowhere intimates that
the two may bo regarded as one offense. On t' :e contrary, provision is made
in the same section for a sei)arate assessment of punishment for each of the
two crimes. In State, v, Alexander, 50 Mo., 131, the defendant was convicted
of burglary and larceny in ono proceeding. The supreme court affirmed
the judgment as to the larceny, and reversed it as to the burglary. If there
had been two indictments, one for each of the crimes charged, and two
separate trials, it will hardly be questioned that the granting of a new trial
in the one case would not reopen a verdict of acquittal in tlie other. Such
an acipiittal would be a perpetuid bar under article 2, sei.tion 2'i, of our
state constitution. . . .

" ' Nor shall any person, after being once acquitted by a jury, be again, for
the same offense, put in jeopardy of life or liberty.' We are unable to perceive
how the general assembly can, by a statute regulating crimiiuil proce<lure,
deprive any citizen of a constitutional right. No such effect wiis intended,
and none can follow a law which simply provides for the triid of two of-
fenses (iharged imder ono indictment. Tlie i)rosecution for burglarj', in thie
case, was ended forever by the verdict of not guilty.

" It is claimed for the state that the familiar constitutional rule has been
changed by a provision in the scLtiou above referred to, that ' ." judgment

AMERICAN CRIMINAL REPORTS.

be arrested after a verdict of guilty on a defective indictment, or if judg-
ment on a verdict of guilty be reversed for error in law, nothing herein
contained chall prevent a new trial of the prisoner on a proper indictment,
or according to correct principles of law.' Tliis provision has no application
whatever to the quL-stion before us. As to the ' offense,' touching which
defendant claims constitutional exemption from second trial, there was no
' verdict of guilty,' and no arrest of judgment or reversal of such verdict,
for eiTor of law or otherwise. The constitutional exemption distinctly ap-
plies to the offense, and not merely to the procedure. There was a verdict
of guilty as to the offense of lai'ceny, and no doubt exists that the second
trial upon that charge was proper upon well established principles.

" We are referi'ed to State v. Siniins, 71 Mo., 538. In that case it was held
that where a conviction of murder in the second degi'co on an indictment
charging ni.urder in the first degi-eo has been set aside, the defendant may,
under the present constitution, be tried a second time for the murder in the
first degree. Tliere the indictment charged but one offense — murder, in-
cluding all the grades. The prisoner was found guilty of that offense,
though in a degree inferior to the charge. The effect was very different
from that of a conviction for a totally different offense, which the statute
might have permitted to bo tried by the same jury. No lawyer will say
tliat larceny is a grade of burglary, or vice versa. We find notliing in this
decision to disturb our conclusions in the present case."

The supreme court, after quoting the foregoing paragraphs affirming the
case, say: " Tliis opinion of the St. Louis court of ajipeals, with its reason-
ing, conclusiveness and citation of authorities, wo have also carefully con-
sidered and examined, and deem it a just, true and faithful exposition and
presentation of the law of the case, with which wo are well satisfled."

AsHTON V. The State.

(08 Ga., 25.)
Burglary: Dwelling-house.

1. Dwelling-house occupied in part by servant.— Wliero a dwelling-

house was occupied by one in charge of a plantation, and he ordinarily
slept in one room of it, the enth-e house was his dwelling-house,
although another room mny have been occasionally occupied as an office
or bedroom by another who while there was tlie master.

2. Burglary at common law and under the statute.— The act of 1870

(page 05) did not alter the law of burglary otherwise tlian to put burg-
lary, whether committed in the day or night, on the same plane in
respect to punishment.

Burglar}^, Master and Servant, Laws. Before Judge Sncad.
Eichmond Superior Court, April Terra, 1881.

SIMMERMAN v. STATE.

Jackson, Chief Justick. 1. The defendant was convicted
of burglary ; ho broke and entered a dwelling-house ; it must
have been with the intent to steal, though he was caught be-
fore he committed the felony. The house belonged to Mrs.
Moore, as charged in the indictment ; it was used as a dwelling-
house by Alfred Maddox as cliarged, because he occupied one
room of it generally, and had charge of it as foreman of the
hands on the plantation. It made no difference that Wm. H.
Warren, occasionally when visiting the plantation, lodged in
one room, even if he were master, and jMaddox servant, when
he was there. It was more constantly used by JMaddox as a
residence or domicile than by Warren. We see no material
error in the ruling of the court on these points.

2. The act of 1879 (Laws of 1879, page G5) leaves the defini-
tion of burglaiy as it stood before in the code. Its effect is
simply to alter the law of burglary in respect to punishment,
putting burglary in the day-time and at night on the same
footing, and leaving it to the judge to ])unlsh either at his dis-
cretion within the extremes of the penalty prescribed — any
term of time between the shortest and longest time prescribed.

It loaves burglary a crime, whether the breaking and enter-
ing with felonious intent be made day or night.

Judgment ajlrtned.

SiMMEKMAN V. StATE.

(16 Neb., 615.)

Change op venue: Arrest by private person — Argument of prosecutor.

1. Change op venue. — An affidavit for change of venue on the ground of
the bias and prejudice of the people of a county should be made by one
knowing the facts which he swears to. One made by a non-resident,
who shows no means of knowledge, is not sufficient.

3. Obtaining affidavits. — If a party is unable to obtain affidavits from
residents of a county he may state to whom he applied for the same, the
reasons given by each for refusing, and that he was unable to jirocure
affidavits in support of his motion because of the refusal of the citizens
to give the same.

;5 Felony — Arrest by private person. — Where a felony has been com-
mitted, and there is good cause to believe that a certain party committed
the same, a private person may arrest such piirty until a warrant can be
procured.

«^

92 AMERICAN CRIMINAL REPORTS.

4. Argument of district attorney.— Where the testimony showed that
the plaintiff was a lierdor on the plains, carried two revolvers and a
knife, and made a display of them, and his companion carried four
revolvers, held, that it was not error for the district attorney to speak of
him to the jury as " Billy the Kid, or Jesse James sort of a cow boy,"
as the testimony warranted the language.

Error from Kearney County.

Burr <£ Parsons, for plaintiff in error.

77ie Attorney-Geiural and IF. S. Morlaii for defendant.

Maxwell, J. The case of Simnierman v. State was before
this court in 1883 (14 J^eb., 568; 17 K W. Kep., 115), the judg-
ment of the court below being reversed, and the cause re-
manded for a new trial. A second trial was then had, which
resulted in the conviction of the plaintiff of murder in the
first degree. The errors relied upon in the plaintiff's brief will
be considered in their order :

1. That the court erred in overruling the motion for a change
of venue. The motion was supported by four affidavits. That
of A. F. Parsons stated in substance that he was an attorney at
law residing at Lincoln; tliat he w^ent to Kearney county prior
to the term of court at Avhich the defendant was tried the last
time, and was unable to procure the affidavits of citizens of
said county as to the bias or prejudice of the citizens; that
they told him they would hang Simmerman if he was tried and
acquitted, and that Simmerman would not leave IMinden alive ;
that they had ropes in the court-room with which to hang him.
L. C. Burr also swears that he is an attorney at law residing in
Lincoln ; that ho has been and is acquainted with the sentiment
of the citizens of Kearney county ; that the killing of Woods
has caused a public discussion in the newspapers of the state
of general circulation in -iaid county. A number of extracts
from leading papers in t'.ie state condemning the murder and
tending to incite violence are copied in the affidavit. He also
states that one Watkins, editor of one of the county papers of
Kearney county, told him that he Avas employed by an Omaha
paper to write a full account of the lynching of Simmerman
by a mob, and that the article was then written, even to the
date of the hanging. Simmerman also swears that, during the
former trial, guards, who had rifles and pistols in sight of

SIMMERMAN v. STATE.

the jury, were in the court-room, and that a rope was seen
there. lie also swears that he cannot have a fah' and impai'tial
trial in that county, by reason of the prejudice of the citizens,
his information being derived from the newspapers, Francis
Ilair also makes an affidavit to the same effect. On the part
of the state, an atfldavit with twenty-four names of residents
of the county was filed, stating that there had been a large
increase of the population of the county by immigration since
the murder was committed, of men who knew nothing what-
ever about the case, and that there was no bias or prejudice
against the plaintiff.

The constitution guaranties to every one accused of crime a
fair trial before an impartial jury, and whenever it is made to
a])poar satisfactorily, from the evidence of leading citizens of
tlie county, that there is a bias and prejudice in that county
against a ]^arty accused of crime, so strong as to prevent a fair
trial, it is the duty of the court to grant a change of venue
{Richmond v. State, ante, J?S8); because, if the excitement in
a community is great, or the bias so strong as to prevent the
jury from dispassionately weighing the evidence and render-
ing a vei'dict accordingly, the accused has been deprived of his
constitutional rights, and may not have been found guilty upon
the evidence alone. Courts should be very careful to see that
a fair and imj^artial trial is had in every case. But a party
seeking a change of venue must show, by the best evidence that
can be obtained, the bias and prejudice against him. Thus, in
Rlehnond v. State {S. C, 20 X. W. Eep., 282), certain citizens
of Plattsinouth made affidavits setting forth how long they
had resided there, their several occupations and means of ac-
(|uiring knowledge of public sentiment, and then stated from
their own knowledge the facts in relation to the bias and prej-
udice of the public. The affiants swore to facts within their
own knowledge. But in this case there is not a single affidavit
in support of the motion filed by a citizen of Kearney county.
It is true, it is stated that the plaintiff was unable to procure
such affidavits, but whether or not an effort was made to that
effect is left entirely to conjecture. It is possible in some cas5s
affidavits cannot be obtained in the county in support of such
a motion, and where such is the case the party must state the
facts; that is, what efforts he made to procure the same, to

AMERICAN CRIMINAL REPORTS,

whom he apphed, and the reasons given by the several per-
sons whose affidavits were sought, for refusing to give the
same. Such evidence, while not very satisfactory, may be
sufficient to establish bias and prejudice, and show that a fair
trial cannot be had. But sweeping allegations of persons re-
siding a great distance from the county, and whose knowledge
is derived alone from a casual visit or from newspapers, as to
the state of public sentiment therein, is of very little value,
and tlie same may be said of the extracts from newspapers.
Most of the papers from which the extracts were taken are of
general circulation in the state, and it is apparent that, witli
the exception of the Minden paper, have no greater circu-
lation in Kearney county, in proportion to population, than
in the surrounding counties. It will not bo contended that
because the newspapers have published an account of a murder
and enlai'ged upon it somewhat, that, therefore, the ])erson who
committed the murder cannot be tried. If that was the law,
then the more atrocious the crime the greater the immunity
from punishment. As to the arms in the court-room, sworn
to by the plaintiff as being seen on the former trial, the purpose
does not appear, and there is no presumption of wrong.

Such arms should not be permitted in a court-room during a
trial, and we cannot believe the judge knew of their existence;
and had his attention been called to the matter, undoubtedly
he would have ordered them removed. In any event, it is not
ground for reversal that on a former trial a few guns or other
things were left in the court-room during a portion or the whole
of the trial. It is due to the judge beforo Avhom the case was
tried, to say that it is to be presumed tliat if it had appeared
to him that from any cause a fair and impartial trial could not
be had in Kearney county, that ho would have ordered a change
of the place of trial. It must affirmatively appear, therefore,
that the court erred in overruling the motion, and as it does
not, the point is not well taken.

2. A few days previous to the Icilling of Woods, one Wray,
a resident of Hitchcock county, lost about thirty-five head of
horses out of the county ; the brand on the horses, he states,
was " a lazy L." The horses were missing from the county,
and as they seem to have been running at large, lie stated, in
substance, that he had lost that many ; that ho telegraphed

SIMMERMAN v. STATE.

Jack Woods, tho sheriff of Hitchcock county, who seems to
have been at Kearney, " to look out for them, as they Avere
stolen." Two telegrams Averc sent from Hastings to Kearney,
and one from Culbertson to Kearney, and a portion of these
dispatches, at least, were received and answered by Woods.

One Nelson, a resident of Hitchcock county, testifies that
"in the forepart of October, a year ago" (18S3), the plaintiff,
with "three others, avIio were about as rough looking fellows
as he Avas, drove a bunch of horses into my pens on my ranch.
I saw them Avhen they were driving them in and started down
there, but by the tiuie I got there they had them in and one
of the horses caught." He also states that they had about
thirty or thirty-live head, and that tho only brand he recog-
nized Avas " a lazy L." Ho also states that about the 18th or
10th day of October, 1882, he met Wray returning from
]\Iinden with the same horses. Also Frank Eldridge, residing
in Hitchcock county, testified as follows : " I had been in the
hotel there [at Culbertson] and had my dinner, and Avas sitting
out on the porch in front of tho hotel, and some persons came
out and asked Avho Avas the sheriff of the county. Question.
Who asked that question? Atifiwcr. Simmerman; this man
here. He asked that question, and some one that stood there
pointed to me, and I said, ' Jack Woods is sheriff of this
county.' Simmerman said, 'He is an Englishman and a great
foot-racer.' I said, ' Yes.' He said, ' I knew him in Texas. I
knoAV him like a book.' Q. Did you know Jack Woods per-
sonally ? A. Yes, sir; I knew him Avell. Q. State Avhat kind
of a man Jack Woods Avas, physically. Was he a foot-racer ?
A. Yes, sir; ho could run Avell; there Avore A^ery few that
could outrun him." There is also other testimony tending to
shoAV that the plaintiff Avas Avell acquainted with Woods, and
that he Avas sheriff of Hitchcock county. On the 15th of Oc-
tober, 1882, tho plaintiff, Avith thi'ee others, Avent to Minden,
taking Avith them a portion of the horses belonging to AYray.
The plaintiff Avas armed with two revolvers, of thirty-four and
thirty-eight caliber, and Avith a knife. Belmont, one of his
companions, carried four roA^olvcfS. It is pretty evident, too,
from the testimony, that they made no secret of the number
of Aveapons they carried ; tho i)iaintiff, in particular, having
shoAvn his to certain residents of the toAvn. Belmont and tho
plaintiff took supper at the Commercial Hotel in Minden.

AMERICAN CRIMINAL REPORTS.

One lilinnie Dobson, who was in the dining-room while they
were at supper, testifies as to their conduct there as follows :
" Question. State where you saw him (Simmerman). Annoer.
I saw him in tlie Commercial Hotel, in tliis town, in the dining-
room. Q. State whether the defendant here made any re-
marks there about being arrested. A. He did at the supper
table. They were at the table, eating their supper. They
were blackguarding and talking noisy, and Tuy husband came
in and attended to them ; then tliey tiiliced between themselves
not quite so loud. I was brushing off the other table and I
heard some words that I thought were not right, and I listened
to it. Simmerman said to Belmont : ' You know what we are
looking for and what we must do. You want to keep your
eyes sldnncd, and the first damned son of a bitch that walks
up to arrest you, shoot him like a dog. Don't let him get the
drop on you.' Q. What arms did they have? A. Each had
a six-shooter. They were lying on their laps. They sat facing
each other, so one could look into the kitchen and the other
into the dhiing-room."

Also one Carson testified that on the evening of the 15th of
October, 1SS2, seeing a light in the court-house at Minden, the
plaintiff " wanted to kno\v who was under arrest for stealing
horses. I said Hair was. He said : ' The first damned son of a
bitch that tried to aiTCst him for horse stealing he would kill
him, or he would kill him.' "

About 6 o'clock on the evening of the 10th of October,
1882, the plaintiff and Belmont went into the dining-room of
the Prairie Home, a hotel in Minden, and sat down at the
table to eat supper, each one drawing a revolver and laying it
on his lap. There is a conflict in the testimony as to their rel-
ative positions ; the plaintiff and a number of witnesses stating
that the plaintiff sat at the right of Belmont, while an equal
number of witnesses testify that he sat at the left. While
they were at supper. Jack Woods came in and stepped up to
them, saying that they were to consider themselves under
arrest. The testimony of the landlord, who was waiting on
the table and saw the entire affair, is very clear as to the rela-
tive situations of the parties and what transpired, and is as
follows : " I was waiting at the table at the time ; several were
there eating supper. Just as they were sitting, eating, I saw
these two men, Simmerman, with another man, come in the

SIMMrRMAN V. STATE.

door, and they soon sat drvvn to snpper. Q. Did they Imvo
any arms on their persons ? A. Yes, sir ; they had two re-
volvers, or three, and a big knife. They took a napkin and
hiid in their laps, and laid their revolvers in their laps. Then
a man came in and shut the door after him, and walked in
])otwocn them and told the man on the east to hold up his
hands. Then the fellow on the west grabbed "Woods by the
avm and threw him round so that he faced him, or to the west.
Tiion the fellow on the east shot him in the back, and the fel-
low on the west said, * Give him another one and shoot him
dead.' Then another ball was fired and the lights went out."
On cross-examination he testifies that the plaintiff sat to the
left of Belmont, and that Woods placed his left hand on the
plaintiflf's shoulder and "put his right hand in between them,
and said: 'Throw up your hands,' and 'You are my pris-
oners.' "

Tills testimony is corroborated by a number of witnesses,
and by tlie wounds that caused the death of "Woods, both of
wliicli were in the back. The testimony showing that the
plaintiff killed "Woods is clear and conclusive, and the jury
Avovo not only justified in finding that the pMntiff was guilty
of the murder, but could not well have found otherwise. But
it is said that even if he did kill "Woods, that he did so while
resisting an unlawful arrest, and therefore was justified ; and
that evidence that certain horses were stolen and in possession
of the plaintiff and Belmont was improperly admitted. The
object of this evidence was to show that certain horses had
boon stolen, and that a poi'tion of them, at least, were in the
possession of the plaintiff ; in other words, that the plaintiff
was guilty of a felony. This, in connection with the evidence
that the plaintiff on the previous day had threatened to kill
any one that attempted to arrest him, and that he was well
acquainted with "Woods and knew that he was the sheriff of
Hitchcock county, show that the plaintiff was expecting an
attempt to arrest him, and also show an intention tb kill who-
ever should make the attempt. The evidence, therefore, was
properly admitted as showing a cause for attempting to make
the arrest, as well as the threats to kill.

It is objected, however, that "Woods had no warrant, and
was acting in a county where he had no official character, and
Vol. rv — 7

AMERICAN CKIMINAL REPORTS.

thereforo he was without authority. Section 284 of the Crim-
inal Code provides that " any person not an officer may with-
out warrant arrest any person if a petit larceny or felony lias
been committed, and there has been reasonable ground to be-
lieve the person arrested guilty of such offense, and may
detain him until a legal warrant can be obtained." The testi-
mony shows that Woods was the sheriff of Hitchcock county ;
that he had been informed by telegraph that the horses in pos-
session of the plaintiff and Belmont had been stolen, and find-
ing them in their possession certainly was sufficient to lead
him to believe that they were the thieves. He therefore Avas
justified in attempting to arrest them. In saying this we do
not intend to modify the opinion in Slimncrmaii v. State, 14
Keb., 5G8 ; 17 K. W. Rep., 115. A person may resist an iin-
lawful attempt at arrest, and if necessary, rather than submit,
may lawfully kill the person making it ; that is, there must be
a cause for making the arrest, — a crime committed, and rea-
sonable ground to believe that the person sought to be arrested
committed the offense. When these conditions exist, the law
clothes any person with power to make the arrest until a Avai*-
rant can be obtained. As these conditions existed in this case,
the attempt of Woods to arrest the plaintiff Avas not unlawful
and is no justification for tiie murder. In addition to this, it
is apparent that the plaintiff was expecting to meet Woods, as
there is evidence tending to show that on the day preceding
the murder, when some one mentioned the name of Wood,
both Belmont and the plaintiff placed their hands on their re-
volvers. Some one then asked, " What Wood ? " Just then
Lawyer Wood of the town came up, and some one called him
by name, when Belmont and the plaintiff went away ; evi-
dently showing that they supposed the person spoken of was
the sheriff of that name.

3. Misconduct of the district attorney in speaking of the
plaintiff to the jury as "Billy the Kid, or Jesse James sort
of a cow-boy." The plaintiff, in his testimony, freely stated
that he had been tending stock in New Mexico and on the
plains ; that he cnrried two revolvers and a butcher-knife, and
that his comparion, Belmont, carried four revolvers. It is also
apparent tlat the plaintiff displayed his weapons with some-
thing approaching braggadocio; and, in fact, by his conduct

HAILE f. STATE.

justified the district attorney in speaking of him in the way he
did. Peaceable and law-abiding men do not find it necessary,
in a peaceable community, to load themselves down with
deadly Avcapons, and their conduct is open to criticism when
they do so. There was no error, therefore, in using the words
conri)lainod of.

4. Objections are made to the instructions ; but it would sub-
serve no good purpose to review them at length, as we find no
error in them. It is very clear, from the evidence, that the
plaintiff intended to kill Woods, or any one who attempted to
arrest him, and that in pursuance of that intention the shots
Avero fired by him, and that they were the cause of the death ;
thus making deliberate and premeditated murder.

The plaintift has had a fair trial, and there is no doubt of
his guilt, and there is no material error in the record. The
judgment is affirmed.

Judgment affirmed.

IIaile V, State.

(38 Ark., 564.)

Concealed weapons.

CAUityiNO PISTOLS — Act of April 1, 1881, constitutional.— Sections 1
iiiul 2 of the act of April 1, 1881, prohibiting tlie carrj-ing of army
pistols, except uncovered and in the hand, is not unconstitutional.

En-or to Pope Circuit Court. Hon. "W. D. Jacoway, Circuit
Judge.

Ilailo was convicted in the circuit court of Pope county, for
can-ying a pistol, upon the following agreed facts :

" On the 20tli day of September, 1881, in the county of
Pypc and state of Arkansas, the defendant did carry uncov-
ered, and buckled around his waist, but not uncovered and in
his hand, a large revolving pistol, known as the Colt's army
pistol, and such as is used in the army and navy of the United
States, when ho was not an officer ; and said carrying was not
under the directions of an officer, and when he was not upon
a journey nor upon his own premises."

This was all the evidence. He appealed.

100

AMERICAN CRIfflNAL REPORTS.

G. B. Moore, attorney-general, for the plaintiff in error, cites
Act April 10, 1881, sections 2 and 4; Acts 1881, p. 102.

Eakix, J. The defendant below was charged bofoi'e a jus-
tice of the peace with the offense of carrying a pistol, contrary
to the statute, and upon conviction appealed to tlio circuit
court.

lie was then tried, de novo, and convicted upon the agreed
state of facts contained in the reporter's statement, and lined
$50. From this judgment he appeals.

The proof shows all the essential elements of the offense, as
defined by section 2 of the act of April 1, 1881, which pro-
hibits the wearing or carrying any such pistol as is used in the
army or navy of the United States, in any manner, except un-
covered and in the hand, save under the circumstances which
in this case did not exist.

The appellant has no brief, but Ave suppose his exceptions
refer to the validity of the act as unconstitutional.

The lirst two sections are complete, in tliemselves, to consti-
tute and prohibit the offense, and may stand without reference
to otlier sections of the act, concerning which no opinion is
now expressed. The question is, Can the legislature regulate
the motle of carrying any arms which the citizens have the
constitutional riglit to keep and bear for their common defense ?
We have decided that it may to some extent, which means
that it may, in a reasonable manner, so as, in effect, not to
nullify the right, nor materially embarrass its exercise.

The constitutional provision sprung from the former tyranni-
cal practice, on the part of governments, of disarming the
subjects, so as to render them powerless against oppression. It
is not intended to afford citizens the means of prosecuting
more successfully their private broils in a free government.
It would be a perversion of its object, to make it a protection
to the citizen, in going, with convenience to himself, and after
his own fashion, prepared at all times to inllict death upon his
fellow-citizens, upon tlie occasion of any real or imaginary
wrong. The '' common defense " of the citizen does not require
that. The consequent terror to timid citizens, with the counter
violence which Avould be incited amongst the more fearless,
Avould be worse than the evil intended to bo remedied.

rights.
Tlio cc

HAILE V. STATE. 101

The legislature, by the law in question, has sought to steer
between such a condition of things and an infringement of
constitutional rights, by conceding the right to keep such arms,
and to bear or use them at will, upon one's own premises, and
restricting the right to wear them elsewhere in public, unless
they be carried uncovered in the hand. It must be confessed
that this is a very inconvenient mode of carrying them habitu-
ally, but the habitual carrying does not seem essential to
" common defense." Tlie inconvenience is a slight matter com-
pared Avith the danger to the Avhole community, Avhicli Avould
result from the common practice of going about with pistols in
a belt, ready to be used on every outbi-eak of ungovernable
passion. It is a police regulation, adjusted as wisely as the
legislature thought possible, with all essential constitutional
riglits.

Tlie constitutional right is a very valuable one. "We would
not disparage it. A condition of things Avithin the experience
of men, still very young, illustiates the importance of keeping
alive in the mind, and well defined, these old landmarks of
Saxon liberty. " Semj)cr paratiis " is a good motto. Yet if
every citizen may keep arms in readiness upon his place, may
render himself slcilful in their use by practice, and cany them
upon a journey Avithout let or hiiulrance, it seems to us, thci
essential objects of this particular clause of the VAW of Rights
Avill be preserved, althougli the citizen be required to carry
them uncovered and in tlie hand, otf his own premises, if he
should deem it necessary to carry them at all.

The clausCj upon this point, of the Tennessee Bill of Rights, is
similar to ours, except that it expressly reserves to the legisla-
ture the power, '' by hiAV, to regulate the Avearing of arms, Avith
a view to prevent crime." Wo think this reservation a matter
of superabundant caution, inserted to prevent a doubt, and
that, unexpressed, it Avould result from the undefined ]iolice
powers inherent in all governments, and as essential to their
existence as any of the muniments of the Bill of Rights. ( >nly
the legislature must take care that, in regulating, it does not
destroy, nor materially interfere Avitli the objects of the consti-
tutional provision.

A Tennessee laAV, passed under this constitution in 1871, pro-
hibiting the carrying of any army weapon, except openly and

102 AMERICAN CRIMINAL REPORTS.

in the hand, was hekl constitutional. State v. Welburne, 7 Jere
Baxter, 57. AVe think the first and second sections of our act
of ISSl as free from objection.

Tliore need be no fear from anything in these sections, that
the citizen may not always have arjns, and be skilled in their
propter use, whenever the common defense may require him to

take them up. . „. ,

AJjivmed.

jTOTE.— A merchant who buys a pistol for a sample, and carries it in his
pocket from one store to another for the pmpose of liaving it packed witli
other goods, may show such facts to rebut the presumption of the statute,
that possession is prima fade evidence of conceahnent. State v. Gilbert,
87 N. C, 527.

State v. Hill and Blake.

(58N. H.,475.)

CorJCEAMNO DEATH OF CHILD.— The crime of endeavoring to privately con-
ceal the death of a bastard child, in violation of Gen. St., ch. 2.")(i, sec. 8,
may be committed, althou.j;]! the facts are frona necessity made known
to some one who is requested to keep them secret.

Indictment of Mrs. Ilill, upon Gen. St., ch. 2r)('>, sec. 8, for l)oing
privately delivered of a bastard child, and endeavoring ])rivately
to conceal its death and the cause thereof ; and of j\Ir. Blalce as
an accessory. The defendants lived together, but were not
married. AVhcn IMrs. Hill was delivered of the child, ^Ii's. C,
a neigld:)or, at Blake's recjuest, came to the defeiulant's house
to remler assistance ; was there inforuied 1)V J»lalvc ol" the facts ;
Avas requested by hiui to keep the nuitter secret ; saw tlie cliild
dead in tlie presence of the defendants ; cut the uuibilical cord ;
atlvised Mrs. Hill to send for a physician, but she refused to
have any one else called in. No clothing had been prepared
for the child; and Blake buried the body in the cellar. Sub-
ject to the defendants' exception, the court instructed the jury
that Mrs. CVs knowledge, obtained from the defendants, would
not necessarily prevent a conviction; that tho defendants
anight be guilty, although they did not conceal the facts from
everybody ; that the crime consists in the intent and endeavor

STATE V. HILL AND BLAKE.

103

to conceal ; and that the jury should consider all the evidence,
including the fact that Mi'3. C. was called in, and the circum-
stances under which she was called. Verdict against the
defendants. Bill of exceptions.

Blab' c6 Burleigh, for the defendants.

The object of the statute is, to prevent the concealment of
evidences of infanticide. In Peafs Case, 1 East, P. C, 229, it
was held that the presence of any second person, even an accom-
plice, negatived the charge of concealment ; and this case was
afterwards overruled only where the second person was an
accomplice. 2 Arch., 128. If the information given by the
defendants to one innocent person does not disprove the charge
of concealment, the law cannot determine how many must be
informed in order to avoid a violation of the statute.

Farr, solicitor for the state.

The endeavor to conceal the death is the essence of the of-
fense. If absolute concealment were necessary, conviction
would bo impossible. Success in the attempt is safety from
punishinont, even if the death was by murder. The instruc-
tions given to the jury were correct. 2 Arch., 128, n.; 2 Whar-
ton, Cr. L., sec. 1235.

Doe, C. J. The gist of the crime is not a concealment of
the death and the cause thereof, but an attempt to so conceal
them that they may not come to light. Such a concealment
may be attempted by one who is unable to keep knowledge of
the facts from others whose assistance is necessarily called for,
and upon whoni secrecy is enjoined. With these limitations,
knowledge of the facts may be communicated to others by one
who is making every prudent effort of concealment, amount-
ing to such an endeavor as the statute was designed to prevent.
A reasonable regard for the mother's health and life might
have required aid from the neighbor who was enlisted in the
safe-keeping of the secret.

Exceptions overruled.

Clauk, J., did not sit.

Note.— Tho statute of Arkansas provides: "If any woman shall en-
deavor privately, eitlier by herself or the procurement of others, to conceal
the death of any issue of her body, male or female, that it may not como

104

AMERICAN CRIMINAL REPORTS.

to light, although it cannot be proved that it was murdered, every such
mother sliall suffer the same punishment as for manslaughter.

" Nothing in tlie last preceding section sliall be so construed as to prevent
such mother from being indicted for the murder of such bastard child."

In Sullivan v. The State, 30 Ark., 64, the court held tliat, construing the
sections together, and giving them both hai-monious effect, tho fii-st section
must be undci-stood as if the word bastanl wore used in it; it must be sup-
pUed by intendment. And, therefore, that an indictment which omitted to
allege that the cliild was a bastai'd, whose death tlie mother was chai-ged
with attempting to conceal, was bad.

State v. Day.

(55Vt., 510.)

Confession: Evidence — Inducement — Practice.

1. Confession siade under projase.— The sheriff and state's attorney

talked with the respondent while in jail. Tlie sheriff first testilied that
no inducements to confess were hold out, but ;iftcrwards syiiil "that he
presumed he and the state's attorney both told the respondent it would
be better for her to tell the whole story, and the punishment would bo
likely to be lighter." Held, that his testimony was not atlniissible.

2. Same. — When there is no conflicting testimony as to what tho induce-

ment was, the decision of the court below may be revised by the supreme
court.

Information filed by the state's attorney for stealing. Trial
by jury, December term, 1882, Itoss, J., presiding. Ycrdiet,
guilty. Questions of evidence and practice stated in the
opinion.

Ilarry Blodgeit and Henry G. Lie, for the state.
El'mJia May and M. Montgomery, for the respondent.

The opinion of the court was delivered by

Veazey, J. This is an information for stealing a horse,
■wagon, harness and buffalo robe. Numerous exceptions were
taken on the trial, but the only one which we are all agreed
must be sustained is that to the admission of the evidence tend-
ing to show a confession by the respondent. It appears that
while she was under arrest and in jail in Sherbrooke in Canada,
she was visited by the sheriff and state's attorney, who there

STATE V. DAY.

105

had conversation with her. The sheriff was sworn as a wit-
ness by the state, and testified first that on one occasion when
he visited the respondent with the state's attorney, no induce-
ments to confess Avere held out to her by either of them, but
afterwards said " that he presumed he and tlio state's attorney
botli told respondent it would be better for her to tell the
whole story, and the punishment would be likely to be lighter."
Tliis was not contradicted. Objection was, therefore, made to
tlie witnpss' testifying to what she said; but the objection
was overruled, and the witness was allowed to testify to the
conversation which tended to show admissions of guilt, to all
which the respondent excepted. She Avas quite J'oung, in jail,
away from friends, and without counsel to advise her. We
think the admission of this evidence Avas a Adolation of the
settled rule in this state, " that a confession must never be re-
ceived in evidence Avhcn the respondent has been influenced
by any threat or promise." The discussion of the question by
the late Chief Justice Pierpoint, in State v. Walker^ 31 A^t.,
300, is so applicable to this case it is sufiicient to refer to that
opinion.

Another question is made, that the judgment of the county
court, that the confession Avas A'oluntary and the evidence
should be admitted, is conclusive and cannot be revised by this
court. .

The same question AA'as raised in State v. ^Vall'cl\ sxqyra; and
Ave think the true view Avas there expressed to the effect,
tliat when the testimony' as to the promise, threat or induce-
ment is conflicting, and the court must pass iq)on the character
and Aveight of the testimony upon each side, in order to deter
mine Avhetlicr the confession is voluntary or not, the decision
tliei-eon is final. But in a case like this, Avhere there is no con-
flict in the testimony or dispute about the facts, the decision
of tlie county court admitting the testimony may be revised in
this court. State v. PheJps, 11 Yt., 110.

Tlie judgment of the county coui't reversed, new trial granted;
and the case renuinded.

106

AMERICAN CRIMINAL REPORTS.

*s^"

5'^,

BucKEicE V. The People.
(110 lU., 29.)

Constitutional law:

Jury of the vicinage — Offeme committed near
county line.

Jury seuvice confined to the county.— There is no authority in any
statute for the selection of grand and petit jurors in one county to serve
in another countj'.

As TO KIOHT OF TRIAL BY JURY; AND IN VHHAT COUNTY A PERSON
CHARGED WITH CRIME MUST BE TRIED.— Tlie right of trial by jury,
guarantied by the constitution to one accused of crime, includes the
right cf being tried by jiu'ors selected from the county in which the
offense is alleged to have been committed.

3. Section 5, division 10, of the Criminal Code, in so far as it authorizes a

party to be tried for an offense committed entirely within one county,
but one hundred rods from the county Une, in the adjoining county, is
unconstitutional and void.

4. There is a class of offenses that may be committed by a pai-ty being in

one county, upon a person or thing being at the same time in another
county, when the offense may not inaptly be delined as having Iwvn
committed in either county; and offenses committed on the county line,
or so near thereto as that the distance therefrom is inappreciable, may
with proprietj' be regarded as having been committed in either county,
and by doing so no one is deprived of any constitutional riglit.

5. But where the entire offense is committed within one county, and at an

appreciable distance from the county line, as in tliis case, at a distance
of seventy rods, the party accused cannot bo indicted and tried in an-
other county for that offense.

Appeal from the Circuit Court of Kane County ; tlio Hon.
C. AV. Upton, Judge, presiding.

Ifessrs. liuhcns, MaGqfei/ db Ames, for the appellant.

A citizen of this state can be tried for a criminal olfense
only in the county or district where the offense has been com-
mitted. Const, of 1870, art. 2, sees. 5, 9.

Tlie statute providing that " where an offense sliall be com-
mitted within one hundred rods of a county line, it may be so
alleged, and the trial may be in either county " (sec. 390 of the
Criminal Code), is in direct contravention of the constitutional
guaranties relating to trials by jury, and, therefore, void.
Anmfroi^g v. State,! Coldw., ZZ%{Swarth v. Kimball, 43
Mich., 143; State v. Saiojer, 50 N. II., 175; Wheeler v. State, 2i
Wis., 52; Oshoni v. State, 24 Arlc, 029.

The word " district," in article 2, section 9, of the constitu-

BUCKRICE V. THE PEOPLE.

lOT

tion, does not include a bolt of one hundred rods in another
county from which no jui'ors are drawn. Weyrich v. The
People, 89 111., 90,

The first constitutional provision which we invoke against
the operation of this statute is section 5 of article 1 of the
constitution of 1870 : '• The right of trial by juiy, as hereto-
fore cujoycd, shall remain inviolate." The meaning of this
constitutional provision has been held to be that the common
law mode of trial by jury must remain inviolate. Petition of
Ferncr, 103 1)1, 3(57 ; Ward v. Fai-well, 97 id., 593. And it
was held that the mode of trial, as it existed at the time of the
adoption of the constitution, was preserved by this provision.
Poss V. L'vlng, 14: 111., 171.

There can be no question that at common law no man could
be taken out of the county Avliere the offense was committed,
and \vliere he resided, to an adjoining or distant county. 4
Blackstone's Com., 319. And this right of trial by juiy in-
cludes the grand as well as the petit jury, and both must bo
drawn from the county Avliore the offense was committed. 4
Blackstone's Com., 303 ; Ilallam's Const. Hist., 15, iO ; Bacon's
Abr., title "Juries;" 2 Hawkins' Pleas of the Crown, 300, ch.
25, soc. 28.

The courts of other states have held acts of the legislature
authorizing the trial of pci*sons out of the county in which the
offense was committed as unwarranted by the constitution and
void. Sicarth v. KlmlxiU, 43 Mich., 413; Paul v. Detroit, 32
id., 108; We>/)'lc7t, v. The People, 89 111., 90; Annstt'ong v.
State, 1 Coldw., 338 ; 0,sljorn v. State, 24 Ark., G29 ; Wheeler v.
State, 24 Wis., 52; State v. Saioijer, 5G N. II., 175; State
V. Denton, G Coldw., 539 ; Kirh v. State, 1 id., 315.

The framers of our constitution did not content themselves,
however, with the provision above cpiotcd. They gave a still
inoro definite expression of their determination to uphold this
constitutional guaranty by declaring : " In all criminal prose-
cutions the accused shall have the right . . . to a S])eed3''
puljlic trial by an impartial jury of the county or district in
which the offense is alleged to have been committed." Const.
1870, art. 2, sec. 9.

Mr. Franh Croshj and 2L\ Terrence E. Pyan, state's attor-
ney, for the people.

The statute attacked is no novel experiment in legislation.

108

AMERICAN CRIMINAL REPORTS.

It has existed among the legislative enactments of sister states
for many years, and has frequently been confirmed by their
judicial tribunals. Commonwealth v. Glllon, 2 Allen, 502 ; The
People V. Harris, 45 Barb,, 494 ; State v. BoUnsoii, 14 Minn.,
447 ; The People v. Davis, 50 N". Y., 95.

" The right of trial by jury " may be regulated by tbe legis-
lature in certain ways, provided its fundamental requisites are
not impaired or destroyed, — that is, provided the number com-
posing the jury, its unanimity and its impartiality are not vio-
lated. Proffatt's Trial by Jury, sec. 100, p. 149.

Me. Justice Scholfield delivered the opinion of the court.

A])pellant sold spirituous liquors in violation of chapter 43,
entitled " Dram-shops," in Cook count}^, but at a point Avithiu
seventy rods of the line between that county and Kane county.
For this he was indicted by a grand jury of Kane county, and
tried and convicted in the circuit court of that countv. lie
objected on the trial to the jurisdiction of that court, and by
plea and motion raised the question of its power to render any
judgment against him for the offeuse so committed. The action
of the court is claimed to be authorized b}^ section 5, division
10, of chapter 38, entitled " Crimiual Code," of the Eevised
Statutes of 1874, page 400, which reads as follows : '""Where
an offense shall be committed on a county line, or within one
hundred rods of the same, it may be so alleged, and the trial
may be in either county divided bj'^ such line." Undoubtedly,
if valid, this is broad enough to embrace the present case ; but
counsel for appellant insist that so much of it as assumes to
authorize the trial of a party in one county for an olf ense com-
mitted in another county (no right in that regard having been
waived), is unconstitutional and void, and this presents the
only question for our determination.

It Avill to observed no county lines are changed by this en-
actment, and no provision is made for the selection of jurors
beyond the county line, and within the one hundred rods
thereof, and, we may add, there is no authority in any statute
for the selection of grand and petit jurors in one county to
serve in another county. See R. S., 1874, ch. 78, entitled
" Jurors," p. 630. "^^

The constitution of 1870 declares in section 5, article 1:
" The right of trial by jury, as heretofore enjoyed, shall re-

BUCKRICE V. THE PEOPLE.

109

main inviolate." And in section 9, ai'ticle 2 : "In all criminal
prosecutions the accused shall have the right . . . to a
speedy public trial, by an impartial jury of the county or dis-
trict in which the offense is alleged to have been committed."
Su])stantially the same provisions were in the constitutions
of ISIS and ISiS, and they have been hcM to guaranty the
right of trial by jury, in conformity with the principles of the
common law as it was enjoyed at the adoption of the constitu-
tion. Jioss V. Irving, 14 111., 171; Ward v. J^arwell, d7 id.,
rm-, Petit ioti of Ffrrler, 10;{ id., P.07. And this right of trial
by jury included that of l)cing tried by jurors selected from
the county in which the offense is alleged to have been com-
mitted. Weyrlch v. The l^eojyle, SO III., 90. It Avas the settled
common law doctrine that jurors in one county were not com-
petent to pass upon the guilt or innocence of a party in regai'd
to a crime alleged to have been committed by him in another
county. See 3 Eeeves' Hist, of English Law, 135; 2 Hale's
Pleas of the Crown, 2(i4 ; 2 I f awkins' Pleas of the Crown, 103 ;
4 Hlackstone's Com. (Sharswood's ed.), 349, * 350 ; 1 Wharton on
Crini. Law (Tth ed.), 277.

There is a class of offenses committed by a party being in
one county, iipon a person or thing being at the same time in
another county, where the offense m.ay not inaptly be defined
as being committed in either county, and we are not to be un-
derstood as questioning but that offenses comuiitted on the
county line, or so near thereto that the distance thei'efi'om is
inappreciable, may Avith propriety be regarded as committed in
either county, and that by so holding no one is deprived of any
constitutional right; but it is obvious such cases are not analo-
gous to the present case. Here the entire offense is committed
within one county, at a distance of seventy rods from the
county line. It is not only possible, but probable, that many
persons reside within one hundred rods of the county line
who are competent jurors in their own county, but none of
whom, in any possible contingency, would be competent to sit
as such upon the trial in Kane county. And so, if it could be
said this is a new district for criminal purposes, it is unconsti-
tutional, in that there is no provision authorizing it, but, on the
contrary, there is a positive provision excluding the selection
of juiics in so much of the territory as is included in this strip

110

AMERICAN CRDHNAL REPORTS.

of one hundrecl rods in Cook county. But if it may be salt! the
districts simply remain as they were, then it would seem too
plain to admit of argument, the constitution is violated by au-
thorizing parties committing offenses wholly in one county to
be indicted and tried therefor in another county. If this may
be done as to one hundred rods of territory, why may not it
be done as to one mile? And if it may bo done as to one mile,
wli}'- may it not be done as to the entire county, and thus drag
men for trial to Cook or Jo Daviess county for offenses com-
mitted in Alexander or Pulaski county?

It may be that it would work no inconvenience, and be
greatly promotive of a rigid enforcement of the Criminal Code,
if a strip of two hundred rods in Avidth on all county lines
(one hundred rods on each side) might be, for the purjiosc of
criminal trials, regarded as Avithin either county; but it is
enough for the present to say this is not warranted by the con-
stitution, and its mandate is, that " in all criminal prosecutions
the accused shall have the right to a speedy public trial, by an
impartial jury of the county or district in which the offense is
alleged to have been committed." Wo have no more riglit to
tlisrcgai'd this mandate as to one hundred rods than as to tliat
many miles, and our opinion of its wisdom or convenience can-
not in the sliglitest affect the question of its obligatory force.
Like questions were presented and like conclusions reached in
Swarth v. KhribaU, 43 ]\[ich., 443 ; Armstrojig v. State, 1 Coldw.,
338; Xiric v. State, id., 34.j; State v. Denton, 6 id., 530; Wheeler
V. State, 24 "Wis., 52; Oshot^n, v. State, 24 Ark., 029; State v.
love, 21 W. Va., 783 (45 Am. R., 570).

The constitutions of Massachusetts and !N"ew York do not
contain like provisions to those in our constitution which we
have been considering, and hence the cases cited by counsel for
the people from those states are not relevant. As to the decis-
ion cited from Minnesota, we are unable to concur in the rea-
soning by which it is sustained, notwithstanding the high
respect we entertain for the ability and learning of those com-
posing the tribunal by which it was announced.

The judgment is reversed.

Judgment reversed.

Note.— In State ex rcl. Drown v. Stewart, Circuit Judge, 60 Wis., 587, it
is held that the statute providing that offenses committed witliin one Lun-

STATE I'. STEWART.

Ill

(Ircd rods of the tlivuling line between two counties may be prosecutofl and
punished in either, is not in violation of sec. 7, art. 1, Const., seciiring to the
accused the right to a trial " by an impartial jury of the county or district
wliorein the offense shall have been committed; which county ordtHtrict
sliiiU liave been previously ascertained by law." See, also, People v. Davis,
m N. Y., 05.

Statk t. Stewakt.

(89 N. C, 563.)

CoNSTiTtmoNAL LAW: Trial by jury — Waivcr.

1. A trial by jury in a criminal action cannot be waived by the accused.

2. On trial of an indictment for an fissault and battery, a jury trial was

waived, and the court, by request, found the facts .and declared the Law
arising thei'eoo. Held, that such a procedure is not warranted by law,
and the case will be remanded for trial.

Attonieij-General, for the state.
No counsel for the defendant.

Asm:, J. It is a fundamental principle of the common law,
declared in " ]\[agna Charta," and again in our Bill of Eights,
that " no person shall be convicted of any crime but by the
unanimous verdict of a jury of gooa and lawful men in open
court." Art. 1, § 13.

Tlie only exception to this is, where the legislature may pro-
vide other means of trial for petty misdemeanors with the right
of appeal. Proviso in same section. This is not one of the
potty misdemeanors embraced in the proviso ; and if it Avas, no
such means of tri.al as that adopted in this case has been pro-
vided b}^ the legislature. The court here has undertaken to
serve in the double capacity of judge and jury, and try the
defendant without a jury, which it had no authority to do,
even with the consent of the prisoner. 1 Bish. Cr. Law,
§759.

The action of the court in this respect was in violation of
the constitution, and in subversion of a fundamental principle
of the common law. State v. Jfoss, 2 Jones, GG.

There is error. The case must bo remanded to the superior

112

AMERICAN CRIMINAL REPORTS.

court of Stokes county, that it may be proceeded witli by a
jury trial according to tlio regular practice of the court. Error.

Reversed and remanded.

Note.— In Tlie State v. Carman, 03 Iowa, 130, defendant was indicted for
an jissault with intent to rape, which is felony. The defendant waived, in
writiiif?, liis riglit to a jury trial, and after a trial by the court and a finding
of guilty, the defendant claimed that he had no power to waive such right.
Under the Code of Criminal Procedure of that state it is provided that " an
issue of fact must be tried by a jurj' of the county in which the indictment
is found, unless a change of venue has been awarded." Adams, J., deliver-
' (ig the majority opinion of the court (Seevers, J. , dissenting), says : " If the
language of the statute were less imperative than it is, the adjudications
would support us in reaching the same conclusion. Hill i'. The People, 10
Mich., 331; State v. Maine, 27 Conn., 281; Bond v. State, 17 Ark., 290; Wil-
son V. State, 10 Ark., 001; League v. State, 30 Md., 257; iViUiamn v. State, 12
Ohio St., 022; People v. Smith, 9 Mich., 193; United States v. Taijlor, 3
McCraiy, 500. We think the judgment of the district court must bo re-
versed."

Seevers, J., in support of the point that a personal right or statutory privi-
lege confen-ed on a person accused of crime may be waived by the person
so accused, cited the following cases: The State \\ Ilnglies, 4 Iowa, 't'A:
The Slate V. Groome, 10 id., 308; The State v. Ostrander, 18 id.. -135; The
State V. Rpid, 20 id., 413, and The State v. Fclton, 25 id., 07. " The ('onstitu-
tion provides that the accused ' shall have the right ... to i)o con-
fronted wltli the witnesses against him.' This language is just as mandatory
as that contained in the statute in question, and yet it was held in The State
V. Poison, 29 Iowa, 133, that a personal privilege only was conferred on the
accused, which he could waive, and that such waiver did not affect the
jurisdiction of the court. The constitution provides that ' the riglit of trial
by jury shall remain inviolate.' Every one admits that this meiuis a jury
composed of twelve men. But it was held in The State v. Kaufman, 51
Iowa, 578, that such a jury might be Avaived by the accused, and the trial
be had by a jury comj)osed of eleven men," etc.

State v. Amekt.

(12 R. I., 04.)

Constitutional law: Statute void in part.

A statute which prohibits the sale and the keeping for sale of intoxicat-
ing liquors, and which contains no exception in favor of importers
whose imported liquors remain in the original packages, or of dealers
holding outstanding licenses, although void as to such importers, and
perhaps void as to Ucense holders, is valid as to otiiers. If a law which
is constitutional under certain limitations exceeds those limitations, it
may still be operative witliin them and void only for the excess.

Constit

DURFKI

ing is, W
tutional ?
and quali
intoxicati
tlie sclliu;
porters ii
that, inas
is unconsi
plies to ii
totally so
lie is not
he is coi
original \.

That il
for sale a;
of the su]
cense cas^
285. But
porters, is
all other ]
that a sta
still be va
connected
tended to
Const. Lir

And so,
offenses p
stitutiona]
offenses ;
to past CO
be entirel;
Cooley's
Hartung \
Ur, 50 N.
V. Fowler,

These c

the case a

Vol

STATE V. AMERY. 1|$

Constitutional questions certified to the supreme court.

DuRFKK, C. J. The question submitted to us in this proceed-
ing is, AVhctlicr chapter 70 of the General Statutes is consti-
tutional? CMuiptcr 70 prohibits, subject to some exceptions
and qualifications, the selling and keeping for sale of certain
intoxicating liquors. Jt does not except from the prohibition
tJie selling and keeping for sale of imported liquors by the im-
porters in the original packages. The I'cspondent contends
tliat, inasmuch as the chapter does not make this exception, it
is unconstitutional and void, and not only so in so far as it ap-
plies to imported liquors sold or kept for sale as aforesaid, but
totally so, and consequently so in respect to himself, though
ho is not an importer and does not claim that the liquors which
he is complained of for selling were imported, and in the
original packages.

That the chapter is void as to importers selling or keeping
for sale as aforesaid cannot be doubted, in view of the decision
of the supreme court of the United States in the so-called li-
cense cases. 5 IIow. (U. S.), uOi ; State v. Robinson, 49 Me.,
285. Eut because no exception is made in favor of such im-
porters, is it therefore void, as the respondent contends, as to
all other persons ? We think not. It is perfectly well settled
that a statute Avhich is unconstitutional or void in part may
still be valid as to the residue, unless the parts are so intimately
connected that it caimot be supposed that one part was in-
tended to be enforced independently of the other. Cooley's
Const. Lim., *78.

And so, also, a statute which is ex j)ost facto as to acts or
ofTenses previously committed, and therefore as to them uncon-
stitutional cud void, may yet be valid as to subsequent acts or
offenses ; and a statute which is unconstitutional and void as
to past contracts, because it impairs their obligation, may yet
be entirely valid as to contracts entered into after its passage.
Cooley's Const. Lim., *180; lioss Case, 2 Pick., 105, 172;
Hartung v. The People, 22 N. Y., 95 ; People v. City of Eoches-
ter, 50 N. Y., 525 ; Golden v. Prince, 3 Wash. C. C, 313 ; Moo^e
V. Foxohr, 1 Hemp,, 536 ; Baker v. Brameti, 6 HiU, 47.

These cases are not distinguishable in point of principle from
the case at bar. The doctrine of them is, that if a law, which
Vol. IV— 8

114

A5IERICAN CRIMINAL REPORTS.

is constitutional under certain limitations, exceeds those limita-
tions, it may still be operative within its legitimate sphere and
void only for the excess. The doctrine is applicable in t\w
case at bar, and under it chapter 79 should be sustained, except
in so far as it goes beyond the proper limits.

Indeed the statutes of Ehodc Island and Massachusetts,
under Avliicli two of the cases reported in 5 How. (U. S.), 504,
arose, did not contain exceptions in favor of importers, and
yet convictions under them were sustained by the supreme
court of the United States.

It is true the objection here presented does not appear to
have been explicitly made ; but the fact that it was not made
by the counsel, considering who they Avcre, nor suggested by
the court, is in itself almost equivalent to a decision that the
objection lias nothing in it. In Commonwealth v. KhnhiU, 24
Pick., 8r)!>, the objection was taken and was declared to be un-
tenable, tliough in that case the statute was sustained on the
broader ground that it was not unconstitutional or void in any
particular. l>ut, said Chief Justice Shaw, "supposing the law
could be construed to be repugnant to the constitution of the
United States, in so far as it prohibited the sale of imported
spirits by the importer in the original packages, it would bo
void thus far and no farther, and in all other respects conform-
ing to the acknowledged power of the state government, it
Avould be in full force." See, also, State v. /Snoio, 3 R. I., 04.
AVe think the rule as thus stated is correct, though doubtless
there are cases where a diiTcn^ent rule has been declared. We
must therefore decide that cha[?ter TO is not totally unconstitu-
tional and void for not reserving " the right to importers to sell
in the original package," but that on the contmry it is coni^ti-
tutional and valid, notwithstanding the oiiiission of any suclt
reservation, as applied to all persons except such importers.

The Siimo course of reasoning applies with the same effect to
the other point, namely, that chapter 7!) contains no exception
in favor of the holders of unexpired licenses^ Supposing, what
we do not decide, that the cluj.pter is unconstitutional as to th(^
holders of such licenses, still it is not on that account unconsti-
tutional as to any jiersons but them.

The respondent objects that everything alleged in a com-
plaint under the statute may be true, and yet the accused be

innocent,
to the CO
this proc
rule is, tl
it is for Ii
in the coi
ercnce in

Eil.mur,

for defon

Note.— '
In construi
an cnactmc
anything ct
it nugatory
rel. V. Kcm
governing i
tional, that
unless the j
the otlier, o
pose that tl
jKiraniount
effeet of th
or ])arts \\a.\
tivo. If th
the nianifes
acc'ordancc
of a sound
tions, page
out, that \v)
in accoi-ilan
that which a
road, 12 Lcj
tional ami v
V. State, 40
though the
peace exclu
nnconstituti
dealing witl

STATE V. AMERY.

115

innocent. This is an objection to the form of complaint, not
to the constitutionality of the statute. It cannot be made in
this proceeding. We may remark, however, that the general
rule is, that if the accused is entitled to any special exemption,
it is for him to show it in defense, and it need not be negatived
in the complaint, unless it is expressed or incorporated by ref-
erence in the enacting or prohibitory clause of the statute.

Edmund S. Ilophins, assistant attorney-general, for ]ilaintiff.
W'dliam B. Beach, Charles E. Gorman and Henry W. Allen,
for defendant.

Note. — When aiid how far a statute will he declared unconstitutional. —
In construing statute.? courts aim to ascertain the true meaning and spirit of
an enactment from a consideration of the whole; and if they discover in it
anjthing equivocal or unconstitutional, they eliminate the same or declare
it nugatory, and do not sufler it to vitiate the entire act. In The People ex
rcl. V. Kcnncij ct at,, 00 N. Y., 21)4, the court of appeals states the principle
governing such cases as fellows: "Where part of a statute is unconstitu-
tional, that fact does not authorize tlie court to adjudge the remainder void,
unless the provisions are so interdependent that one cannot operate without
the other, or so related in substance and object that it is impossible to sup-
pose that the legislature would have pa.ssed the one without the other." The
jiaraniount riuestion for the courts to consider is whether the meaning and
('ffec:t of the statute will I'emain uniin])aired after the unconstitutional part
or ])arts have been subjected to a searching analysis and declared inopera-
tive. If the void parts can be scjparated from the good, without changing
the manifest intention of the law-making power, courts may prune them n
accordance with the general canons of legal i>xegesis, and the suggestic ns
of a scnuid and cautious discretion. In Cooley on Constitutional Limita-
tions, page 178, it is said: " If, when the unconstitutional portion is stricken
out, that which remains is complete in itself, and capable of being executed
in accordance with the apparent legislative intent, wholly independent of
tliat which was rejected, it must be sustained." In Franklin Countij v. Rail-
road, 12 Lea(Tonn.), 531, it is held that pai-t of a statute may be unconstitu-
tional and void, and the rest be valid, if the parts are separable. In Morrison
V. State, 40 Ark., 448, the same principle is maintained. It is held that
though the first section of the act of March 15, 1879, giving justices of the
peace exclusive jurisdiction of certain misdemeanors, had been declared
unconstitutional, yet it had no effect whatever upon the second section,
dealing witii appeals, and this continued in full force and effect.

116

AMERICAN CRIMINAL REPORTS.

In ke Ziebold.

(U. S. C. C, 23 Fod, Rep., 791.)

Constitutional law : Due process of Imo — Kansas act of March 7, 1885 —

Habeas corpus.

Wliere a person is imprisoned for refusing to testify or appear before a
county attorney in a proceeding under section 8 of the act of Marcli 7,
1885, wliich is amendatory of the act prohibiting the manufacture and
sale of intoxicating liquors, he is restrained of his liberty without " dins
process of law," within the meaning of the fourteenth amendment to
tlie constitution of the United States, and entitled to be released on
habeas corpus issued by the United States circuit court.

The petitioner was committed to jail for refusing to testify
before the county attorney, and sued out a writ of habeas cor-
pus. Further facts appear in the opinion.

B. P. Wagge7ier and Thomas P. Fenlon, for petitioner.
W. D. Gilbert, county attorney, for the state.

FosTEE, J. The petitioner in this case alleges that he is im-
prisoned and deprived of his liberty, in violation of the pro-
visions of the fourteenth amendment to the constitution of
the United States. That amendment provides, among otlior
things, that no state shall deprive any person of life, liberty
or property without " due process of law."

The federal courts and judges are authorized, among other
causes, to issue the writ of haleas corpus for a person in cus-
tody and imprisoned in violation of the constitution, or of {•
law or treaty of the United States. E. S., § 753. The juris-
diction of this court to issue the writ and hear the case de-
pends upon the truth of the averments in the petition, and
therefore the jurisdiction of this court and the main question
are so inseparably connected together that the determination
of one must determine the other. It appears from the petition
and the return to the writ that the petitioner is held in custody
and imprisoned by the sheriff of Atchison county by virtue of
a commitment issued to him by the county attorney, commit-
ting the petitioner to the county jail for refusing to obey a
subpoena issued by said attorney, and refusing to be sworn and
give testimony before him in proceedings under the eiglith
section of the act of the legislature of Kansas, approved

Ifarch 7,
ing the ir
is admitt(
ticcordan(
is fairly \
a])pear oi
iiigs is re
within th

The fin
])rocess oJ
l)rcscribe(
But such
iinty mei
deprive a
shall cho(
adjudicati
the land
oi'iginatet
operate a;
Murray's
XI. New
310. In
in the cor

"They
liominatei
modes tlu
ture, its e
other wa
mean thai
wliom its
its jurisdii
virtue of
iuiotlier c
law, vioh
he acts in
the state's
or the coi

These v
terms by
same gem

IN RE ZIEBOLD.

117

Ifarch 7, 1885, being an act amendatory to the act prohibit-
ing the manufacture and sale of intoxicating liquors, etc. It
is admitted that the county attorney acted and proceeded in
ticcordance with the provisions of the law ; and the question
is fairly presented whether a person imprisoned for refusing to
a])pear or testify before the county attorney in such proceed-
ings is restrained of his liberty without " due process of law,"
within the meaning of the constitution of tlie United States.

The first matter of inquiry is the meaning of the term " due
jM'ocess of law." If it has no broader meaning than process
prescribed by act of tlie legislature, it is the end of the case.
But such a construction would render the constitutional guar-
anty mere nonsense, for it would then mean no state shall
(lci)rive a person of life, liberty or property, unless the state
shall choose to do so. It has repeatedly and uniformly been
adjudicated that the terms "due process of law" and "law of
the land " have a broad and comprehensive meaning, and
originated in that great bill of rights, Magna Charta, and
operate as a restriction on each branch of civil government.
Murray's Lessee v. Jlohol'en Zand Co., 18 How., 272 ; Davidson
V. M'w Orleans, 96 U. S., 107 ; Fx parte Virginia, 100 U. S.,
31G. In the last-cited case the court, speaking of these words
in the constitution, says :

" They have reference to the actions of a political body de-
liominated a state, by Avhatever instruments or in whatever
modes that action may be taken. A state acts by its legisla-
ture, its executive, or its judicial authorities. It can act in no
otlier way. The constitutional provisions, therefore, must
mean that no agency of a state, or of the officers or agents by
wliom its powers are executed, shall deny to any person within
its jurisdiction the equal protection of the laws. Whoever, by
virtue of a public position under a state government, deprives
another of pi'operty, life or liberty, without due process of
law, violates . . . the constituticmal inhibition, and, aa
he acts in the name of and for the state, and is clothed with
tlio state's power, his act is that of the state. This must be so,
or tlie constitutional provision has no meaning."

These words in the constitution have been defined in various
terms by different courts, but all the definitions tend to the
same general idea. Mr. Justice Edwards has said in one case :

1X8

Al^IERICAN CRIMINAL REPORTS.

" Due process of law undoubtedly means in the duo course
of legal proceedings, according to those rules and fonns which
have been established for the protection of private rights."
Westervelt v. Grcgcj, 12 N. Y., 209.

Mr. Justice Johnson, of the supreme court of the United
States, says :

" As to the words from JVIagna Charta, incorporated in the
constitution of Maryland, after volumes spoken and written
witli a view to their exposition, the good sense of mankind lias
at last settled down to tliis : That they were intended to secure
the individual from the arbitrary exercise of the power of gov-
ernment, unrestrained by the established principles of private
rights and distributive justice." Banh of ColumVm v. OJcehj,
4 Wheat., 235.

Tliis dclinition has been several times approved by that court.
U. S. V. Crulkshank, 92 U. S., 554 ; Ilurtado v. California, 110
U. S., 527 ; S. C, 4 Sup. Ct. Rep., 111.

Judge Cooley says :

" Due process of law in each particular case means such an
exertion of the powers of govern'.nent as the settled maxims of
law permit and sanction, and under such safeguards for the
protection of individual rights as those maxims prescribe for
the class of cases to whicli the one in question belongs."
Cooley, Const. Lim., 35G ; Wynehamcr v. The People, 13 N. Y.,
432 ; Taijlor v. Porte)', 4 Hill, 145.

With this general principle established, and the moaning of
those words defined, the dilliciilty remains of applying the
principle to any particular case. In the case of Ilurtado v. Cali-
fornia, supra, Mr. Justice Matthews, in a very learned and ex-
haustive opinion, speaking for the court (Mr. Justice Harlan
dissenting), held that the words " due process of law," in tliis
amendment, do not necessarily require an indictment by a grand
jury in a prosecution by a state for murder; and in J/»n;i y.
Illinois, 94 TJ. S., 115, the chief justice says :

" A person has no property, no vested interest, in any rule
of the common law. Tiiat is only one of the forms of the
nmnicipal law, and is no more sacred than any other. . . .
The law itself, as a rule of conduct, may be changed at tlie
will, or even the mere whim, of the legislature, unless pre-
vented by constitutional limitations."

IN BE ZIEBOLD.

119

And in Wall'cr v. Sauvinet, 92 TJ. S., 90, the court held that
this amendment did not guaranty the right of trial b}' jury in
all cases in the state courts. These cases tend to establish the
doctrine that the rules and forms known to the common law,
in judicial proceedings not affecting the ultimate rights of the
party, are not necessarily guarantied to a person under the
constitution ; and it has long been established that the remedial
process of the law may be altered at the will of the legislature,
so it does not impair a vested right, or cut off tlie remedy
altogether. The words '• due process of law," then, must be
directed at something deeper than the mere rules and forms by
which courts administer the law. They evidently were intended
to guaranty and protect some real and substantial right to life,
liberty and property, as tlie ultimate result, and probably to
prohibit any arbitrary and oppressive proceedings by which the
individual is deprived of either. There are certain things that
are manifestly obnoxious to this provision. For instance, the
property of one pcison cannot be taken from him for private
use and given to anuvher, even though he is compensated for
it, and is given every opportunit}^ to be heard through all the
forms and solemnity of judicial proceedings. 2\i>jlo)' v. Porter,
4 Hill, IJrO; (.'ooley, Con^>t. Lim., 357.

Kor can a ])erson be condemned without an ojjportunity to
be heard and make his defense, although he may be guilty.
Wlien we go beyond a few well defined landmarks in this
direction we are upon a broad sea of uncertainty. In any case,
u'c have to incpiire if the person is imprisoned in violation of a
due course of legal proceedings, according to those settled
maxims, rules and forms established for the protection of
private rights against the arbitrary exercise of power, unre-
stricted by established principles applicable to such rights, and
to the administration of justice.

By section 1, article o, of the constitution of Kansas, the
judicial power of the state shall be vested in certain courts
therein named, and such otlier courts, inferior to the supremo
court, as may be provided by law. Undoubtedly the legisla-
tui'e has the constitutional right to establish inferior courts
and define and limit tlieir jurisdiction, powers and proceedings.
J udicial powers may bo conferred without expressly naming

120

AMERICAN CRIMINAL REPORTS.

the tribunal a court, and these powers may be confined to one or
more subjects of adjudication. They may be very limited or
very extensive in their scope, and I am not prepared to say
that a ministerial officer may not be selected to perform these

tidicial functions. The coroner of a county has both minis-
It ■ vl and judicial duties to perform. County commissioners
ha^ e to some extent both duties imposed upon them, and prob-
ably the same is true of a sheriff of a county. That the duties

npos .1 tlie county attorney under the eiglith section of the
act in eoiHi'c crsy ai'e judicial powers must be admitted. He
is to hear and determine, compel the attendance of Avitnesses
by subpoena and attachment, and to punish them for disobedi-
ence to his writs. The power of courts, actinj^ within their
jurisdiction, to punish witnesses for contempt is a necessary and
admitted power. It goes with the judicial attribute, and with-
out it a court is powerless to enforce its orders or protect its
dignity. The serious objection urged to the law under consid-
eration is that the county attorney is the public prosecutor for
the state, lie is the informer against offenders, and on his in-
formation parties charged with crime are put u})on trial. The
judicial powers conferred on him by this law are not to hear
and deterinuie matters in which he stands indifferent between
the parties, but are given to aid and assist him in the per-
formance of his ministerial duties, and have no otlier purpose,
making the judicial powers auxiliary and subordinate to the
ministerial duties, and are given to him as a means by which
he can more successfully procure evidence to institute and
carry on prosecutions; and in this respect the powers given
him are very great, and in the hands of an unscrupulous man,
stimulated by animosity or avarice, could be used as an instru-
ment of sore oppression.

On the mere unsworn statement of any person, and without
any case pending before him, it is made liis duty, under sever
penalties, to set this judicial machinery in motion, with no re
striction as to whom he shall summon before him to testify,
and no limitation but his own good will as to the scojio of his
investigation ; fortified by a power to exact answers to any
questions he sees proper to ask, almost despotic in its severity.
The witness must answer the questions or go to jail for con-

tempt.

March

IN RE ZIEBOLD.

121

tempt. It may be answered that such is tl'.o oaso in all trials,
but there is this wide difference : In trials in opon court on is-
sues made up betAveen the parties, the relevancy and compe-
tency of the question is submitted to the court, and argument
of counsel is heard ; the riglits of the witness, as well as the
party, are discussed, considered and decided. And what makes
the power given by this law still more dangerous and objec-
tionable, is that the law makes it to the interest of the judge
(county attorney) to find evidence of an offense committed.
Tie is offered a reward to excite his vigilance and cupidity, and
threatened with severe punishment if he fails or neglects to
faithfully perform these dm ies. In some respects these duties
ai'c similar to those of a grand jury and court comoined. The
proceedings are preliminary, to ascertain if there is a probable
cause to charge the party with the offense. But a grand juror
may be challenged on the ground that he is a prosecutor or
complainant or a witness upon a charge coming before him for
investigation. St. 1879, p. 812, § 79. Nor can a grand jury
issue a subpoena for a Avitncss, or decide the competency of a
question asked, or punish for contempt. These matters rest
with the court. Sees. 85-88. This provision of the act of
March 7, 1885, is a strange combination of judicial and minis-
terial duties, aided Avith rewards and penalties, and, so far as I
have been able to ascertain, is an anomaly to all tlie judicial
proceedings known to the land. It attempts to unite the judi-
cial Avitli the executive branch of cIauI goveriimcnt ; and Avlien
the law-making power and the power Avhich declares and ap-
plies, as Avell as that Avhich executes and administers the law,
are united and vested in one person or body, it becomes a
despotic and not a constitutional goA^ernment.

Are these objections suiRcient to justify a court in the con-
clusion tliat a person restricted of his liberty under these pro-
ceedings is depriA'^ed of his liberty'' Avithout " due proco 3 of
law ? " I am compelled to answer in the affirmative. I believe
no precedent can be found for the application and use of judi-
cial power in the manner and for the purpose contemplated
by this act, and that it is a dangerous innoA'ation on the fixed
naxims and rules in the administration of justice, established
for the protection of priA^ato rights. In this conclusion I am
also sustained by a recent decision of Judge Crozier, of the

122

AMERICAN CRIMINAL REPORTS.

first judicial district of this state. In re Belkr, 1 Kan. Law J.,
220.

It is, therefore, ordered that the petitioner bo discharged
from custody.

Note.— In Twltcliell v. The Commonwealth, 7 Wall., 321, which was a
petition f(jr a writ of oiTor to tlio court of oyer and terminer of the city
and county of Pliiladelphia, and the supreme court of Pennsylvania, witli
a view to tlio revision of a judgment of the former, aflirmed by the latter
court, which condemned the petitioner to suffer death for tlie crime of mur-
der. The case presented was that the constitution of the United Stater., by
its fifth amendment, ordains that no person shall bo held to answer lor a
capital crime, nor be deprived of hfe, etc., "without due process of law;"
and, by its sixth, that in all criminal prosecutions the- accused shall enjoy
the right '"to be informed of the nature and cause of the accusation," etc.

With these provisions of the constitution in force, the legislature of Penn-
sylvania, by a statute of the 30th March, 1800, to consjolidate, amend and
revise its laws relative to penal proceedings and pleadings, enacted that,
" In any indictment for uuirder or manslaughter it shall not bo necessary to
set forth the manner in which, or the means by which, the death of the de-
ceased was caused, but it shall be sufficient in every indictment for murder
to charge that the defendant did feloniously, wilfully and of bis malice
aforethought, kill and murder the decca.sed." Tlie ])etition set forth that,
pending tlic suit, the petitioner had set up and claimed the rights and
privileges secured him under said amendments, etc.; that t!ic statute above
quoted was in derogation of said amendments. Tiio decision of the court
was delivered by Mr. Cliiof Justice Cliase, and in the course of it he said:

"We are by no means prejjared to say, that, if it were an open question
whether the fifth and sixth amendments of the constitution apply to the
state governments, it would not bo our duty to allow the Avrit aj^plied for
and hear argument on the question of repugnaniy. We think, indeed, that
it would. But the scope and application of these amendments are no hunger
subjects of discussion hero."

To show that these ameudments were not designed as limits upon the state;
governments in reference to their own citizens, but excilusively as restrictions
uixin federal power, the learned chief justice cite-i Barron v. The City of
Baltimore, 7 Peters, 273; Fox v. Ohio, 5 How., 434; Smith v. The State of
Maryland, 18 id., 70; and Withers v. Bucldey and others, 20 id., 90.

Witli those constitutional amendments in force, and the uniform and un-
broken line of decisions of the supreme federal tribunal declaring that they
contain no expression indicating an intention to apjily them to state govern-
ments, the fourteenth amendment to the constitution was adopted, whicli
ordains that : " No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the Unite;! States; nor shall any
state deprive any person of life, liberty or pro]iert.> vvlthout due process of
law," etc. The scope and aiijjlication of this amendment have not been
definitely ascertained or determined by the courts. Tlie (piestion was dis-
cussed with great learning and ability in the Slaughter-House Caseti, 10
Wall., 36, but as the court was nearly equally divided, the decision in that

IN RE ZIEBOLD.

123

case can hardly bo regarded as a precedent. Much of the decision is taken
up with the contention as to the status of American citizenship. But it
would seem that it can make little difference whether the object of the
amendments was to confer citizenship upon the ncgi'o race and to i)rotect them
against hostile legislation of the states or not — since their language is broad
enough to include all classes of citizens — it would bo a dangerous rule of
construction to narrow the words of these amendments to tlie exclusion of
cases which those words, in their ordinary acceptation, would comprehend.
Tlic logical, and, as it would seem, kresistible conclusion to bo drawn from
the language of the fourteenth amendment is as expressed by Mr. Justice
Bradley in liis dissenting opinion; that is : " That the (luostion is now settled
by the fourteenth amendment itself, that citizenship of the United States is
the primary citizenship in this countxy, and that state eitizonship is secondary
and derivative, dejjending upon citizenship of the United States and the
citizen's place of residence. The states .have not now, if they ever had, any
power to restric^t their citizenship to any classes or persons. A citizen of
the United States has a perfect constitutional right to go and reside in any
state ho chooses, and to claim citizenship tlu'rein, and an equalitj' of rights
with every other citizen; and the whole power of the nation is pledged to
sustain him in that right. Ho is not bound to cringe to an}- sujierior, or to
pray for any act of gi-ace, as a means of enjoying all the rights and privi-
leges enjoyed by other citizens. And when the spirit of lawlessness, mob
violence, and sectional hate can bo so completely repressed as to give full
practical effect to this right, we shall bo a happier nation, and a more pros-
perous one, than we now are. Citizenship of the United States ought to be,
and, according to the constitution, is, a sure and undoubted title to equal
rights in any and every state in this Union, subject to such regulations as
the legislature may rightfully prescribe. If a man bo denied full equality
before the law, ho is denied one of the essential rights of citizenship as a
citizen of the United States."

If wo owe allegiance to the United States it follows that the United States
owes us protection. Even under tho feudal system " the essential principle
of a lief was a mutual contract of support and fidelity. Whatever obliga-
tions it laid upon tho vassal, of service to his lord, corresponding duties of
protection were imposed by it on the lord towards liis vassal."

It is provided by the first amendment to the constitution that "congress
shall make no law respecting an establishment of religion, or prohibiting
tho free exercise thereof." According to tho well-settled rule of construc-
tion as applied to tho fifth and sixth amendments above referred to, this
amendment was not designed " as a limit upon tho state governments with
reference to their own citizens," but exclusively as a restriction upon the
federal power. Therefore, unless I can look to the federal government,
through the fourteenth amendment, tho state of Illinois may set up a state
church, compel me to attend it and to pay tribute to it. This new charter
of liberty, purchased at so great a price, ought not to be rendered practically
nugatory by narrow and restricted constructions. The word " freeman" in
Magna Charta, although it had a well-defined meaning when tliat great
eluuter was framed, by process of judicial construction was extended so as
to include every British subject.

124

AMERICAN CRIMINAL REPORTS.

In 1879 the state of Califomia amended its constitution, providing tlint
" offenses heretofore required to be prosecuted by indictment shall be prose-
cuted l)y information, after examination and commitment by a magistrate,
or by iadictinont with or without such examination and commitment, as
may be prescribed by law," etc. And it was held by the supreme court of
the United States, Mr. Justice Hiu-lan dissenting, that a conviction for nmr-
der in the first dcgiee upon such infonnation was not illegal by virtue of
tlio clause in the fourteenth amendment which prohibits the states from de-
priving any person of life, hberty or property without due process of law,
Hurtndo v. California, 110 U. S., 510. See cases cited. See, also, Pcnnoijer
V. Ncff, 95 U. S., 714; Barbier v. Connolly, 113 U. S., 27; In re Ah Lee, 5
Fed. Rep., 899.

The People v. Raymond.

(96 N. Y., 88.)

Construction: Habitual criminals' act.

1. CONSTKCCnON OF PENAL CODE WITH REFERENCE TO PERSISTENT CRIMI-

NALS.— The provision of the Penal Code, increasing the punishment
where the offense charged is a second offense, applies to cases where the
first offense was committed before said code went into eff act. The first
offense is simply a fact in the past liistory of the criminal to be taken
into consideration in proscribing punishnment therefor. The provision,
tlierefore, is not limited in its application by tlie provision of said code
<leclaring that none of its provisions apply to an offense committed or
act done before it went into effect.

2. Same. — Nor is the provision first mentioned limited to cases where the

second conviction is for an offense of the s.ame character and grade as
that which resulted in the first. Where, therefore, ''efendant was con-
victed of the ci-ime of forgciy in the first degree, charged as a second
offense, and it appeared that he had been previously convicted of forgery
in the third degree, held, that as the " subsequent crime was one which,
upon the first conviction, might be punished, in the discretion of the
court, by unprisoimient for life," it being the second conviction, such a
punislunent was imperative under the law.

James Johnston, for appellant.
John Vincent, for respondent.

The material facts are stated in the opinion.

Finch, J. Many of the objections taken to the conviction
and sentence of the accused admit of brief answers. There
was proof tending to show that the alleged altered coupon was
in fact altered ; enough at least to carry that question to the

that"'

THE PEOPLE V. UAYMOND.

125

jury and sustain their verdict when rendered. That there was
no evidence of an intent to defraud on the part of the prisoner
is maintained on tlie ground that the railroad comjiany could
not be defrauded by the payment of their own coupon, although
it had been stolen from the true OAvncr. But the bonds and
coupons were numbered and so could bo identified, and the evi-
dence warrants the inference that notice of the theft had been
given; and a payment to the agent of the thief, induced by a
forgery of the number, would expose the debtor to a second
demand from the true owner. To the claim that the altered
coupon Avas not put in evidence, the answer is that the fact is
otherwise. It appears to have been attached to the indictment,
was proved to have been one of the twelve in the prisoner's
envelope, and was afterward made the subject of cross-exami-
nation by the prisoner's counsel. That no offense can be con-
sidered a second offense under the Penal Code unless it appears
tliat the first offense charged is a crime under such code by
reason of section 719, and the first offense hero was before the
code went into operation, is a contention without adequate
foundation. The tirst offense was not an clement of or in-
cluded in the second, and so subjected to added punishment,
but is simpl}^ a fact in tlio past history of the criminal, which
the law takes into consideration Avhen jn'escribing punishment
for the second offense. That only is punished.

The more important question, however, is the one which
bred a difference of opinion at the general term, and respects
the validity of the sentence impose<l on the prisoner. The
proof showed that his first offense was forgery in the third de-
gree, for which he was sentenced to imprisonment in the state
prison for five years, which was the extreme limit of the pen-
alty before the code. His conviction in the present case was
for forgery in the first degree, for which, if a first offense, the
penalty prescribed was imprisonment for not less than ten
years, and, therefore, might be for life. So much of section
688 of the Penal Code as is essential to our purpose provides
that " a person, who, after having been convicted within this
state of a felony, . . . commits any crime within this state,
is punishable upon conviction of such second offense as fol-
lows: (1) If the subsequent crime is such that, upon a first
conviction, the offender might be punished, in the discretion of

126

AMERICAN CRIMINAL REPORTS.

tho court, by imprisonment for life, ho m-nM bn sontcnccd to
imprisonment for life; and (2) if tho sulr^oriuent crimo is such
that, ui)on a Ilr.st conviction, tlic oifondcr would bo punisliabic
by impi'isonniont for any t(n'm less than his natural life, tlion
such person must be sontcncod to imprisonment for a term not
less than the lon^^ost term, nor more than twice tho longest
term proscribe;! ui)on a first conviction." Hero tho prisoner,
after haviu'^' connnittcd a felony for wliich ho had been con-
victed, committed tho crime of forgery in the first degree.
That became in his case what the Penal Code denomin ; the
"subsequent crime." That is of such character that vas

a first conviction of the prisoner ho miglit bo punishcti in tlio
discretion of tho court by imprisonment for life, but having
been previously convicted of a felony tho statute makes tlio
life penalty no longer discretionary but imperative. The trial
court so held and the general term approved. Tho dissenting
opinion and the argument here go on the ground that section
688 was meant only to provide for cases where the second con-
viction was for an offense of the same chai-acter and grade as
that which resulted in the first. The principal reason assigned
is that, by the code, " potit larceny," Avhich is now but a mis-
demeanor, may have constituted tlie first offense, and that the
legislature could not have intended that because of a previous
misdemeanor a subsequent felony should involve ncces:sarily an
imprisonment for its longest term. But the very next section
(689) shows exactly that intention. It reads, " a person who,
having been convicted Avithin this state of a misdemeanor,
afterward commits and is convicted of a felony, must bo sen-
tenced to imprisonment for the longest term prescribed for the
punishment upon a first conviction for the felony." The lan-
guage of tlio code makes no reference to second offenses of the
same character or grade with the first. It contains no such
limitation, and we think none such Avas intended. Its reason
was obviously independent of any such similarity. That the
accused has alreaily been convicted of a felony or an attempt
to commit one, or of a " petit larceny," shows that punishment
has done him no good; that no reformation was effected; that
he is a persistent criminal, toward whom mercy is misplaced ;
and by reason of this character of the man, thus shown by his
conduct, greater severity of punishment is prescribed. The

HAIR V. STATE.

I'oason is tho saiiin whether both crimes are of similar char-
actor or of tho same grade or not. Both are crimes, and the
perpetration of tlio second, however different, shows such a
persistence in evil, such a continued criininahty, as to Justify
and make prudent a severer penalty than slioukl bo inflicted
upon a iirst oll'ender. If Ave adopted the construction sought,
a prisoner miglit have boon convicted of many felonies, and
yet by judicious changes from one to niiother, or running up
or down the dilFerent grades, escape entirely the penalty of a
second otTense.

We think no error was committed and tho judgment should
be ailirmed.

All concur.

Judgment affirmed.

IIatu v. State.

(lONeb.,G01.)

CoNSTniTCTiON OF STATUTE: Absence of prisoner — Verdict — Evidence of
deceased witness — Ileporta^s notes.

1. Construction of statutes — Repeal of— Effect of AjrcxDMENT. —

Tlic repeal of a ci'iminal law by an amcndatoiy act wliich changes the
repealed act only by reducing the punishment, Avhen tlie repeal and re-
enactment were intended to continue in force the uninterrupted opera-
tion of tho old statute, will apply to crimes committed before the new
act took effect; and tho offender may be punished under the law as
amended.

2. Absence of prisoner.— Tlie voluntai-y withdrawal of a prisoner from

tho court-room during tho progress of his trial, and during the exam-
ination of a witness, will not entitle him to a new trial on account of
his absence, when it is shown that upon his absence being discovered
all further proceedings were suspended until his return, which was but
a few minutes, and upon his return the witness was re-examined cover-
ing the questions asked during the absence of the prisoner,
' ?>. Verdici' — Entering jury room.— Tlie fact that a man was seen to enter,
through a window, a room in which a jurj' had been sent to delibei'ate,
without proof that the jury were still in the room, will not invalidate a
verdict subseciuently returned by tho jurj', where it is shown by the tes-
timony of tho jurors that no person other than the jurors and bailiff
entered the room in which the jury were actually confined during their
deliberations.

128

AMERICAN CRIMINAL REPORTS.

4. Evidence of witness deceased since former trial.— Wlioro a de-

ceased witness testified, upon a former trial of the same party for the
same offense, being brought " face to face" with the accused, and cross-
examined by him, it is competent upon a subsequent trial to provf> the
testimony of such deceased witness; and such proof does not violate
the provisions of tlie constitution of the state which gives to the accused
the right to " meet the witnesses against him face to face."

5. Evidence of court reporter at former trial. — Wliere a court re-

porter is sworn as a witness for the puqwse of proving the testimony of
a deceased witness, and where such reporter testifies that the notes of
the testimony of sucli deceased witness were accurately taken by liim
at tlie time the testimony was given, such notes may be used by the re-
porter in giving the testimony of tlie deceased witness, for the purpose
of refresliing his memory, and if necessary he may read the testimony
to the juiy.

Error from Kearney County.

Burr & Parso7is for plaintiff in error.

The Attorney-General and W. S. Morlan, for defendant.

Eeese, J. This is a proceeding to review the judgment of
the district com-t of Kearney county, by which the plaintiff in
error was convicted of the crime of horse-stealing. The errors
alleged by j^laintiff in error Avill be noticed in their order.
The first point presented is that the indictment was presented
at the October term, 18S2, charging the commission of the
offense on the IGth day of May, 1882, and that on the 18th day
of October, 1883, and after the repeal of the law which made
the act criminal, and which was done June 1, 1883, plaintiff in
error was put upon his trial and convicted. This question
arose in the case of State v. Wish, 15 Neb., 448 {S. C, 19 N. W.
Eep., 686), and was decided adversely to the position assumed
by plaintiff's counsel. Upon a reinvestigation of the question
we are satisfied with the decision in that case. The only
change made in the law was to the benefit and advantage of
plaintiff in error, the punishment having been decreased. This
question also received the attention of this court in Marlon r.
State, ante, p. 349. In this action of the district court there
was no error.

The next question presented is that while the jury were de-
liberating upon their verdict a man was seen to enter " the
court-house through the open window thereof into the room
where the said jury had been sent by said court and ordered

to be kc
Tpon thi
'• I was i
on the 01
and saw
window t
the distri
ing tlioir i
that this I
the jury
tliat thisi
luul l)ocn
place, hoi
baililT, an
Tlic ixWuh
that anyt
was inad(
affiant, w'
wlio ooul(
not. ]jut
affidavits ^
one had ;
room, cx(
cliargo."
fori'cd to
man just i
freshed," <
It is ins
plaintiff ii
trial, and
attorney,
oner requ(
and nccos
acconipan
questions,
of the dis
prisoner 1:
turn, and t
and they \
form bein
Vol

HAIR V. STATE.

to bo kopt (luring thoir deliberation of the case aforesaid." '
Upon this point we iind the affidavit of R. St. Clair, as follows:
" I was in the town of Minden, in said county, and saAV a man
on the outside and south side of the court-house in said county,
and saw the said man enter said court-house through the open
window thereof into the room where the said jury had b?en, l)y
tlic district court of said county, sent and ordered to be kept dur-
ing thoir said deliberation aforesaid in the cause afoi'csaid ; " and
that this occurred on the morning of October 21, 1S83, and while
the jury were considei-ing their verdict. But it is not shown
tliat this occurred while the jury were in the room to which they
had l)i^on sent, nor that they had not been removed to another
place, nor that the person referred to was not the sheriff or
bailiiT, and making the entry for a lawful and proper purpose.
The alii(hivit was not sufficient in itself to convince the mind
that anything irregular or unusual was being done. The entiy
was made on the morning of October 21, Avas soon by the
affiant, who was one of the counsel for plaintiff in error, and
who could have ascertained who the intruder was; but he did
not. But this matter is fully and satisfactorily settled by the
affidavits of two of the jui'ors, Avho testify positively that "no
one had access to the said jury, or was allowed in the jurj^-
room, except tlie mend)ers of the jury and the bailiff in
charge." It is suggested by plaintiff in error that the num re-
ferred to was a juror who "went over to the saloon to see a
man just for a moment, and was returning to his duties duly re-
freshed," etc. This suggestion is not sustained b}'' any proof.
It is insisted that a new trial should be granted because the
plaintilF in error was removed from the court-room during the
trial, and while a witness was being examined by the district
attorney. The affidavits show that during the trial the pris-
oner requested the sheriff to allow him to retire for a proper
and necessary purpose. The request Avas granted, the sheriff
accompanying him. The district attorney asked tAA'o ov three
questions, AA^hich were ansAvered by the witness. The attention
of tlie district attorney was then called to the fact that the
prisoner had stepped out, upon Avhich ho ceased until his re-
turn, and then re-asked the questions (Avhich Avere unimportant)
and they Avere re-answered by the Avitness, no objection in any
fonn being made by the prisoner or his counsel. IS'othing
Vol. IV— 9

130

AMERICAN CRimNAL REPORTS.

occurred which coiikl be in the least to the prejudice of plaint-
iif in error. It appears from the record that the jury, while
deliberating, were uncertain as to the testimony of the two
principal witnesses for the defense, and they were brought into
court and the examination in chief of those witnesses was read
by the reporter. This is now complained of. It is quite clear
to our minds that this could not possibly have worked any
prejudice to the plaintiff in error. But no objection was made
at the time, and no exception was taken. So far as tlie record
shows it was done with the consent of plaintiff in error. The
presumption is it was, F'dUon v. State, 5 Xeb., 354.

The plaintiff in error was convicted of the ofTenso charged
on a former trial, and which was set aside by this court, and is
reported in 14 K^eb., 503 {S. C, IG N, W, Rep., 829), On the
former trial, one A. T. Shinneman was a witness on behalf of
the state. This witness was the sheriff of Cowley county, in
the state of Kansas, and arrested plaintiff in error at Winfield,
in that state, and at the same time recovered from him the
horses alleged to have been stolen. The arrest and recovery
were made soon after the alleged theft. After the first trial, .
and prior to the second one, Shinneman died. The fact of his
deatli was shown, and his testimony, as given on the first trial,
was reproduced on the second. It is insisted that the recep-
tion of this evidence was in violation of the constitutional pro-
vision of this state which guarantees to a defendant tlie right
"to meet the witnesses against him face to face." Section 11,
art. 1, Const. Neb. It is conceded that at common law the
testimony was competent, but is insisted that this rule of the
common law is changed by this constitutional provision. In
"Whart. Crim. Ev., § 227, it is said: "What a decciised witness
testified to on a former procedure against the same (k>fendant
for the same offense as that under trial, or for an offense sub-
stantially the same, may be proved by witnesses who h(?ard the
testimony of the witness ; nor is such oral evidence excluded
by the fact that the original testimony was reduced to writing,
nor, in criminal cases, by +he constitutional provision that the
defendant is entitled to be confronted with tlu; witnesses against
him." In this case, the witness had tcstiflod to the facts sought
to be proven, and had done so in the presence of the accused ;
had been cross-examined by him, and had met him " face to

HAIR V. STATE,

131-

face" in giving liis testimony, and that in the same cause as
the one in which the proof of tlie former testimony was made.
Tiie evidence was competent and properly received. Broivnv.
Com., 73 Pa. St., 325; Johnson v. State, 1 Tex. App., 333; State
V. Johnson, 12 l^c\., 121; People v. Murphy, 45 Cal., 137, and
cases cited in note to AYhart. Crim. Ev., supra.

Objection is also made to the manner of proving the testi-
mony of this deceased "witness. The record shows that the
roi)orter of the court was placed upon the witness stand, and
tostilied tliat he Avas the reporter of the district, and that he
Avas present and reported the evidence on the previous trial.
That the witness Shinneman testified on that trial, and his tes-
timony was accurately reported by him. He was then requested
to read the testimony of the deceased witness, which he did by
reading the questions and answers as they were given on the
former trial, excepting a part which was objected to by plaint-
iff in error, and, the objection being sustained, the testimony
was excluded. Plaintitf in error claims tluit a copy of tlie re-
porter's notes was introduced in evidence in tlie IVn-m of an
exhibit, as documentary evidence, and as such Avas incompe-
tent. AVe do not so consider it. It is true, the reporter was
v.'A asked to give tlie testimony from memory, for the ivas<m,
perha])s, that such a thing was known to be impossible. But
the testimony was simply ]'e))eated by the reporter, using his
notes as a guide to refresh his memory. The right to cross-
examine the reporter at all stages of the testimony was pre-
served, together with the right to object to any objectionable
questions, which latter right Avas exercised, as shown by the
record. The correct method of introducing such testimony
Avould, perhaps, be to first ask the Avitness if he coidd state
from memory the testimony of the deceased Avitness, and, if
the answer should be in the negatiA'^e, the memory of the Avit-
ness could bo refreshed by the notes he had taken. AVhart.
Crim. Ev., § 231. In the case at bar there Avas no substantial
<loparture fiom this rule. In People v. Mnrphu, supra, it is
distinctly held th it a jierson who kept notes of the testimony
of a deceased Avitness nniy read such notes to the jury as the
testimony of the deceased Avitness. It must also be observed
that no objection Avas made in the court beloAv to the manner
of proving the testimony of Shinuoman, but to the proof

.132

AMERICAN CRIMINAL REPORTS.

itself, upon the constitutional ground above referred to. "We
see no error in the ruling of the district court upon the admis-
sibility of the evidence.

The last contention of plaintiff in error is that the verdict
of the jury is not sustained by sufficient evidence. The testi-
mony is quite voluminous, and cannot be reviewed at length
here. It is claimed b}-- plaintiff in error that he purcluiscd the
horses alleged to have been stolen, and that his purchase was
made on the 25th of May, 1882, at Chapman, Kansas, in good
faith, etc. The proof upon this point is by the testimony of
one witness, who claims to have been present and witnessed
the trade, and by the wife of plaintiff in error, who testilicd
that ho was out talking with a stranger, and came into the
house saying they were nice horses; that ho had bought tlicm,
and wanted her to get tlie money; and she got it for him to
pay for them. On the part of the state, it is testified by
Mathew Ilawkenson, the owner of the horses, that they were
stolen on the night of the Kith of ]May, in Kearney county,
Nebraska, and by Mrs. Patterson, Ilcnry Erickson and Oscar
Carlson that plaintiff in error was seen by them in the imme-
diate noigliborhood in wliich the horses were stolen but a
short time before they were taken — from sixteen to forty-
eiglit hours; that he was in company with another num, and
tliat they claimed to be hunting employment at brealcing
horses. They called at the house of Mrs. Patterson and Irjiiglit
some bread, and while tliore their conduct and appeariinco was
siich as to specially attract her attention. None of this proof
is contradicted, and no effort is made to show the whorea bouts
of jilaintiff in error at that or at any other time previous to
his arrest at Winfleld, Kansas, in June following, where ho
was trying to sell the horses. The evidence tliat he was in the
neighborhood from which the horses were taken is quite satis-
factory, and, being uncontradicted, must be taken as true. The
evidence that he bought the horses is quite unsatisfactory, and
lacks those convincing qualities which are usually found in the
statements of credible witnesses.

The testimony was sufficient to sustain the verdict, and the
judgment of the district court is affirmed.

NOTK.— Evidence— Testimony of deceased witness.— ^Yhora tho testimony
of a witness given on a former trial is roproduooJ, tho witness having died,

testimony
stated that
tent. Cra
rule that b
statements
as to such
ent. In ai
witness soi
is no repori
nuuicrous <
sition and (
that such
tent, since
tion to tho
must first I
contradicto

Even in f
posite partj
court of O
proof of at:
yan v. Prie

In tho cai
Iiad been ti
ant oirored
in whieli he
under threii
mony tlie C(
has been ox
afterwards ,
timoiiy, anc
the rule afTt
of this Icind
bo often rej

But when
ment for coi
evidence. '.
introductioi
?'. L'Mco, 2 I
GanJcnhire
facts laying
will hear o
pr()i)er foun
return undt

HAIR V. STATE.

laa

testimony to tho effect that the witness, subsequent to the former trial,
stated that the evidence given by him on that trial was false, is not compe-
tent. Craft V. Com., 81 Ky., 250. The court bases its decision uiwn the
nile that before evidence can bo adduced to impeach a witness by proof of
statements contradictory of what he has testified, he must be inquired of
as to such statements with circumstances of time, place, and persons pres-
ent. In answering the argument that this rule does not apply when tho
witness sought to be impeached is dead, the court says: " In tliis state there
is no reported case in which the question has been presented, but there are
numerous cases in which the evidence of a deceased witness, both by depo-
sition and orally, has been reproduced, and tliis fact is strongly pcrsniisive
that such impeaching testunony has been uniformly considered incompe-
tent, since it could not have been introduced without making it an excep-
tion to the well established rule that the witness sought to be iini)eached
must first be inquired of as to the cu'cumstances of time and place of the
contradictory statements."

Even in an ex i)arte proceeding for the probate of a will, where the op-
posite party had no ojiportunity to cross-examine the witness, the supreme
court of Ohio refused to allow the deceased witness to be impeached by
proof of statements in conflict with his evidence given under oath. Ean-
yan v. Price ct ah, 15 Ohio St., 1.

In the case of Stacy v. Graham, 14 N. Y., 492, the testimony of a witness
had been taken de bene esse and read on the trial, whereupon the defend-
ant olfored to prove conversations with tho witness after his examination,
in which he confessed that his evidence was false, that it had b^en given
uuJer threats, and that ho regretted having testified as lie had ; which testi-
niony the court refused. In its opinion the court says: " When a witness
has been examined and cross-examined, if we allow him to be approached
afterwards and declarations to be drawn from him inconsistent with his tes-
timony, and then receive those in evidence without the protection which
the rule affords, there will bo nosafetj' in trials. When the first experiment
of tliis kind shall be sanctioned by the courts, there is no doubt that it will
be often repeated and with greater or less success."

But when a witness I'efuses to be cross-examined, and while in commit-
ment for contempt, an admission that his evidence was false may be given in
evidence. The People v. Moore, 15 Wend. , 419. Nor does the rule exclude the
introiluction of evidence as to the general character of the witness. Losee
V. Dmc, 2 IIill(N. Y.), 009; Van Dijkc v. Thompson, 1 Harrington R., 109;
Ganknhire v. Parks, 3 Yerg., 2t}. If the magistrate's notes fail to show
facts laying the grounds for impeachment of a deceased witness, the court
will hoar evidence on the subject, and if it is made to appear that tho
pr()[)er foundation was laid, the magistrate will be compelled to ameml his
return under tho direction of the court. Griffith v. The State, 37 Ark., !J24.

13i

AMERICAN CRDUNAL REPORTS.

Ex Pakte Peiest.

(76 Mo., 229.)

Contempt: Habeas corpus— Power of notary public to commit for.

1. Notary public — Power to comnT for contempt. — Tlie statutes con-

fer authority on notaries public to commit to prison any witness who
refuses, wlien duly summoned, to give his deposition. R. S. 18T9,
t(g 2133, 2150, 4027.

2. . A party to a suit is under the same obligation to give his deposition

as any other person.

3. . That a witness resides within the jurisdiction of the court in which

the suit is pending, is in good health, and contemplates no prolongeil
absence, but expects to be present at the trial, is not made by the stat-
ute an exception to the right of a party to the suit to have his deposi-
tion.

A. J. P. Garesche, for the petitioner.

Herman cfc lieyhiwih and G. 2£. Stewart, contra.

IIkxrv, J. The petition alleges that petitioner is restrained
of his hberty by Isaac M. Mason, slierilf of tlie cit}' of St.
Louis, under and by virtue of his comniitnient by Francis
YaUe, a notary public Avithin said city, duly comniissioiKMl,
etc., for the refusal of said petitioner to testify in a cause
Avherein said petitioner is })laintitf and Charles P. Chouteau is
defendant, pending in the circuit court of the city of St. Louis,
said defendant having given due notice that he would take the
depositions of witnesses in said cause, before said notary, and
said Priest having been duly subpxuiacd to appear bef<n'c said
notary and testify therein; that there Avas then pending in tlie
St. Louis court of appeals a suit in ejectment in Avhich Preil-
erick R. Priest Avas plaintilf and said Chouteau Avas defendant,
for the possession of a certain leasehold interest, situate in the
city of St. Louis, Avhich Avas purchased by said plaintiff under
a deed of trust conveying the same to August L. Priest, as
trustee, to secure the payment of two promissory notes in the
aggregate amounting to 8^,000 and interest, executed by Jion-
edict De Bar to John G. Priest. In that suit, Chouteau, among
other defenses, alleged that said leasehohl was the partnership
property of a firm composed of himself, I)e Par and the trustee
of Alice B. Wakelield ; that the lirm Avas largely indebted to
sp.id Chouteau as surviA'ing partner ; that the debt secured by

illegal.

EX PARTE PRIEST.

135

said deed of trust made by De Bar Avas not a partnership debt.
After Cliouteairs answer Avas filed in said snit, tlie petitioner,
John G. Priest, sued him on said note, alleging that the money-
was borrowed for and used by the said firm, and alleging that
said Chouteau was a member of that firm. In the ejectment
suit the petitioner's deposition was taken, and the petition
alleges tliat petitioner therein testified fully in relation to all
matters at issue in said suit; that said deposition was not read
at the trial thereof, but that petitioner was introduced as a
witness by the plaintiff therein, and cross-examined by Chou-
teau's counsel, and his testimony subsequently written out at
full length, and that the notes thereof are still extant and
within the power of said Chouteau ; and also that the substance
of said testimony was embodied in the bill of exceptions filed
in said cause, and copied into the transcript filed in the office
of the clerk of the St. Louis court of appeals. It is also
alleged that the suit of F. R. Priest against Chouteau, and
that of John G. Priest against Chouteau, are under the same
loan based on the same facts ; that the former suit was for
the recovery of the possession of said leasehold, and the latter
to recover the debt secured by said deed of trust. He further
states that after the institution of the latter suit it was agreed
between the parties that any deposition taken in the former
might be read by either party at the trial of the latter cause,
lie further states that there is no necessity to take his deposi-
tion, he being a resident of the said city, in good health, and
contemplating no prolonged absence from the city; but, on the
contrary, intending to bo present at the trial.

On the foregoing facts we have determined that the restraint
of petitioner's personal liberty by the sheriff, Mason, is not
illegal. Our statute, section 2130, provides that : " Any party
to a suit pending in any court in tliis state may obtain the dep-
osition of any witness to be used in such suit conditionally."
The conditioiis upon whicli such depositions may be read Avill
be found in section 2157, and do not affect the (piestion before
us. Section 2133 confers authority on notaries public to take
depositions, and 2150 provides tliat: "Every person, judge or
other officer of the state required to take the depositions or ex-
aminations of Avitncsses, in pursuance of this chapter, . . .
shall have power to issue subpoenas for witnesses to appear and

136

AMERICAN CRIMINAL REPORTS.

testify, and to compel their attendance in the same manner
and under like penalties as any court of record in this state."
Said section further provides that: "Any person summoned
as a witness, in virtue of the provisions of this chapter, and
attending, who shall refuse to give evidence which may law-
fully bo required to be given by him, on oath or affirmation,
may be committed to prison by the officer or person authorized
to take his deposition or testimony," etc. The same power is
also conferred by section 4027 of the act in relation to wit-
nesses. Revised Statutes, C91. "With regard to the power of
the notary to commit a contumacious witness for contempt,
the above section is explicit.

It only remains to consider the reasons alleged by petitioner
for his refusal to testify before the notary. His deposition had
never been taken, nor had he ever testified in the cause in which
he was summoned b}^ the notary to testify; and the ])osition of
petitioner's counsel, that when a witness has once deposed or
testified in a cause he cannot be required to depose or testily
again without an order of the court in which the cause is ]iend-
ing, has no foundation on the facts presented by this petition,
saying nothing as to its correctness as a legal proposition. Xor
did the stipulation between the pai'ties, that all depositions
taken in the case of F. R. Priest against Chouteau might be
read by either party as evidence in the case of Jno. G. Priest
against Chouteau, deprive Cliouteau of tlie rig] it to take peti-
tioner's deposition in the latter cause. It was not tlie same
suit. The cause of action is not tlie same, and it by no means
follows, because some of the issues were the same in botli, that
Chouteau might not have desired, and been entitled to, peti-
tioner's testimony on other matters tlian that to whicli liis tes-
timony related in the other cause. Xor was it a sufficient
reason for his refusal to testify that his oral testimony had
been given in the other cause and reduced to writing, and sub-
stantially embodied in a bill of exceptions filed in tluit cause.
The testimony delivered could only have been proved by wit-
nesses who heard it, and lie had the right to call on petitioner
to testify to the facts, as by far more satisfactory evidence than
that of a third person relying upon his memory or notes of the
testimony taken to state Avhat petitioner's testimony was. The
bill of exceptions did not, as appears from this petition, con-

tain the
stance.

A par
may be c
cisely as
same rig!
witness A
Priest ag
cause of
refused tt
by tlie pt
"That tl
contenq)!;
to bo pi'oj
to the rig
op])rc.ssio;
may bo s
statute w"
the ])cace
and we si
until it sh
under seel
writ of hn

The propor
cri'.uiiia!

process

Indictm
Gudger, J

The Ati
No coui

Smith, (
delivered

STATE V. RAILROAD CO.

tain the entire testimony given by petitioner, but only the sub-
stance.

A party to a suit is a competent witness for lilmself, and
may be called as a ^vitness by his adversary, and stands pre-
cisely iis any other witness, in relation to that suit, with the
same rights and duties, neither more nor less; and if any other
witness who had given his deposition in the cause of F. R.
Priest against Chouteau had been summoned to testify in the
cause of John G. Priest against Chouteau, he could not have
refused to testify, for that, reason, or any other reason alleged
by tlie petitioner in this petition.

That the petitioner resides in St. Louis, is in good health, and
contemplates no prolonged absence from the city, but expects
to be present at the trial of the cause, is not made an exception
to the riglit of a party to a suit to have his deposition. The
op])re.ssioii and annoyance to which witnesses and suitors who
may be summoned as witnesses ma}"^ be subjected under the
statute wliieh confers such power upon notaries and justices of
the peace, is a matter for the consideration of the legislature,
and we sliall withhold an expression of opinion on such a case
until it sliall have come before us. For the foregoiiig reasons,
under section 2020, Pevised Statutes, wo decline to grant the
writ of habeas coi'j)us. All concur.

State v. Railroad Co.

(89 N. C, 584.)

Corporations: Process to compel appearance of.

The prnpor iiioilo of bringing into court a corporation charged with a
criiuiiial olfonso is by sorvice of a copy of the siiininons upon one of its
cfllcerd or agents. Tlie acts of assembly in reference to service of
proccas iu civil and criminal cases reviewed.

Indictment for obstructing a public highway, tried before
Gudger, J.

The Attorney-General, for the state.
No counsel for the defendant.

Smitu, C. J. A copy of the bill of indictment having been
delivered by the sheriff to a local agent of the defendant com-

138

AMERICAN CHIMINAL REPORTS.

pany, without process of any kind in his hands, and the com-
pany failing to appear and answer the charge at the next term
of the court, the solicitor moved that a plea of " not guilty " be
entered and the accused put on trial. The motion was refused,
and the solicitor, on behalf of the state, was allowed to appeal
from the ruling to this court.

It has been too often declared to need reiteration that no
a])peal lies from any ruling of the court in the conduct of a
criminal prosecution until its determination by a final judg-
ment, which, unreversed, puts an end to the cause, and only by
the state, in a few specified cases, to no one of Avhich docs this
belong. State v. Lane, 78 K C, 547; State v. Illnson, 82 K C,
5-10 ; State v. Pollard, 83 K C, 597 ; State v. Poicell, 80 K C, <U0.

The ruling of the court, that the defendant had not been
brought into court, left the cause to be proceeded with as if
no action to that end had taken place, and the indictment was
still depending. The appeal must, therefore, be dismissed.

But it is not improper that we should express an o]>inion as
to the proper mode of bringing into court a cf)rp()rati(m
charged with a criminal offense — the point intended to be
presented, and one of practical importance in the administra-
tion of the criminal law. At common law this was done by
the issue of a summons and its service upon the principal or
head olficor of the company, and if it did not appear, as it
only could apjiear, by a duly constituted attorney, a distvituidH
was awarded, under which its goods and lands were seizeil to
compel an appearance. 1 Tidd, Pi\, IIG; 2 Sellon, Pr., liS;
Aug. & Am. Corp., § G37; 1 Whart. C. L., § 89.

But a method of procedure is prescribed by statute in this
state, as Ave presume it has been in most, if not all, of the
others, Avhicli dispenses with that furnished by the common
law, if not itself obsolete, to be found in C. C. P., § 82, and
in the Code, § 217.

It is there provided that the summons issued by the clerk of
the superior court shall be served by delivering a copy thereof,
" if the suit be against a corporation, to the president or other
head of the corporation, secretary, cashier, treasurer, a director,
or managing or local agent thereof;" the italicized words, as
well as the superadded definition of them, having been intro-
duced as an amendment by the act of March IG, 1875.

If it be
president
sufficient
agents, w
arose the
visions a
api)licabl
this conn

The en
ily intern:
is C([uall_v
sulHcicntl
step was
when the
sity, as a
taken iut(
a mandat

A corp(
and iucaj;
by attorn
same proc
why it sh

aVc tin
Ilampshii
decided, i
feature, t
against a
indictinci

In our
of the bil
eireet tha
Would ha
and in bo
any legal
should ha
in his refi
pear that

The a[i
cause ma

curiam.

STATE r. RAILROAD CO. 139

If it be a foreign corporation, service must bo made upon its
president, treasurer or secretary found within the state, and is
sufficient when made ui)(>n the other corporate officers and
agents, Avhcn it has pro|)erty in the state or the cause of action
arose tlierein, or tlie plaint iff resides in tfio state. Tliese pro-
visions apply to coi'porations generally, but there are others
api)licable specially to insui'auco companies, unnecessary in
this connection to be noticed. Acts 1SS3, ch, 57.

Tlic enactment from which avc have recited, though primar-
ily intended as a regulation in the institution of a civil action,
is equally appropriate in a criminal action, and its terms are
sufficiently comprehensive to embrace both. The former initial
step was by sunnnons and not by vajHUs, as Avas necessary
when the oifender was a natural pei-son, and this from neces-
sity, as a corporation has no bodily existence capable of being
taken into custody by the officer, and could only be reached by
a mandate directed to it and served upon its principal officer.

A corporation having existence only as a legal conception,
and incapable of being present in court except as represented
by attorney, Avould seem, from its nature, to be subject to the
same process in criminal and civil actions, and we see no reason
Avhy it should not be.

AVe find this view taken by the supreme court of New
Hampshire in RdUroad i\ Sfidi\ 82 N. IL, 2f 5, Avhere it expressly
decided, under legislation essentially similar to our own in this
feature, that a summons is the only i)rocess that can issue
against a corporation to compel it to appear and answer to an
indictment, the common law not being there in force.

In our case no summons issued, and the delivery of a copy
of the bill of indictment to its local agent could have no more
oirect than a delivery of a copy of a complaint in a civil action
Would have, without an accompanying mandate from the court,
and in both the act would be inoperative and meaningless for
any legal purpose. If the appeal could be entertained, we
should have no hesitation in affirming the ruling of the judge
in his refusal to proceed Avith the trial, until it is made to ap-
pear that the proper process has been served on the defendant.

The appeal is dismissed, and this Avill be certified, that tiie
cause may proceed in the court beloAV Avhere it is pending. Pet'
curiam. Ajyjjeal dismissed.

^pp

1^0 AMERICAN CRIMINAL REPORTS.

Johnson v. Tue Commonwealth.
(81 Ky., 825.)
Corpus delicti: Circumatamtial evidence.

1. Circumstantial evidence is competent to establish the fact that the per-

son charged to have been murdered is dead. The production of the
body is certainly the best evidence of that fact; but this is not always
possible.

2. The conclusiveness of cu-cumstantial evidence to establish the fact of

death is for the jury, and not the court, to determine. The court is
only concerned in seeing that improper evidence does not go to tlie jury,
and that they are properly instructed in such cases.

Appeal from Edmonson Circuit Court.

Edicardn t6 ILizelq), for appellant.

P. IF. JLinfhi, attorney-general, for appellee.

Judge IIiXKs delivered the oi)inion of the court.

Appellant was convicted and sentenced to the penitentiary
for life on the charge of murdering his child. The evidence
is entirely circumstantial. A])pL'llant left liis father's house,
having- in his arms his two children, aged respectively three
years and one 3'ear, with the avowed intention of goin;'' to
Shakertown. He did not go in the direction ol" Sli. .cert()\> .,.
nor is there any evidence that ho went the • .m his re-

turn to his father's some three or four days lie had left

having with hir^l only the elder of the two ch. n-en, and being
asked about the youngei*, replied that he left it w itli ci'rtain
widow woman near Shakertown. A brother of appellant then
went to the house of the woman with whom appellant stated
he had left the child, and ascertained that the child had not
been left there. After these inquiries had been made, and the
suspicion becoming general that the child had been murdered,
appellant stated to a member of his father's family that he was
going to Shakertown and get the child ; but instead of doing
so, he went in another direction under an assumed name, and,
Avhen arrested, denied his identity, and when tohl that he was
charged with murdering his child said: "They may try me
and send me to the penitentiary, but they can't hang me unless
they prove the child is dead."

The only question presented is, whether the corjms delicti,
the fact that the crime of murder has been perpetrated, must

bo cstabli
of the bo
circumsta
lished
evidence
charged t
the body
den CO of
not alwa}
courts set
necessity
establish
the devel
the dang(
person ch
counted f
dence is a
did the ki

It may
be greatei
not all'ect
such cases
of the fac
jury alone
proper tes
properl}' i
potent in
the jury :
the jury 1
case.

The CO]
fact of de:
its conclui
of the coi
Commonu
7 Indiana
cumstanti

Note.— J5
V. Com., 10]

JOHNSON V. THE COMMONWEALTH.

be establislied by direct proof of tlie kilb'ng, or by an inspection
of the body, or wbetbcr tbe doatli may not be established by
circtunstantial evidence as any other fact in the case is estab-
lislicd. We think tliero can l)e no doubt that circumstantial
evidence is competent to establish the fact that the jjerson
charged to liavo been murdered is dead. The production of
the body is certainly the most conclusive, if not the best, evi-
dence of that fact; but, in the very nature of crimes, this is
not always possible. He who meditates and perpetrates crime
courts secrecy that punishment nuiy not follow; hence tho
necessity that circumstantial evidence should bo admitted to
establish tho fact of death as of any other fact necessar}-- to
the development of truth. It is true that experience illustrates
the danger of convictions for murder when the body of the
person charged to have been murdered is not produced or ac-
counted for; but a like danger arises when circumstantial evi-
dence is admitted to establish tho identity of the person who
did the killing.

It may be that tho danger of an erroneous conviction would
be greater in tho first instance than in the last, but that can-
not aU'ect the question of tho competency of such evidence in
such cases. Under our system, where the jury are the triers
of the facts, tho weight to be given to testimony is for tho
jury alone, the court being concerned only in seeing that ini-
projjor testimony does not go to tho jury, and that they are
proi)erly instructed in the law. "Where there is evidence, com-
petent in its nature, tending to justify the conclusion at Avhich
the jury arrives, this court cannot disturb the verdict, unless
the jury have not been properly instructed as to the law of tho
case.

The competency of circumstantial evidence to establish the
fact of death is acknowledged universally, and, under our code,
its conclusiveness is for tho jury and not for tho determination
of the court. Bishop on Criminal Procedure, vol. 1, sec. 1057;
Commonwealth v. Webster, 5 Gushing, 310; Stoddng v. State,
1 Indiana, 330 ; State v. Keeler, 28 Iowa, 551 ; "Wills on Cir-
cumstantial Evidence, sec. 3, page 1G2.

Judgment affirmed.

Note. — Established by circumstantial evidence. — In a recent case, Gray
V. Com., 101 Pa. St., 380, the principal eviJouce relied ou to prove the corjius

142

AMERICAN CRI^nNAL REPORTS.

delicti was as follows; May McCready, a daughter of the deceased, was
asked by the prosecution, " From what you know of your mother's lower
jaw, state whether or not you believe this jaw to be that of j'our mother."
After objections which were overruled the witness stated: " That lower jaw
looks very familiar to me. From my knowledge of my mother's jaw, the
appearance of that jaw, I believe it to bo my mother's." Upon cross-
examination she said: " Mother had just a few teeth in her upper jaw, here
in front She had none back, only decayed teeth, roots like, back. I don't
know how many ; there was nothing back of the eye teeth on each side, only
roots like, decayed teetlu I can't just tell whether the lost teeth were the
eye tcetli, but I know all she had was a few in front. There was no'doublo
teeth on either side above, tliat I can remember, but there was some roots
of decayed teeth back on each side." Another witness, who had been in the
habit of eating at the same table with deceased for alx)ut two years, testified
that tliere were certain marks about her head, and particularly about licr
lower jaw bone, and tlie teeth therein, and that witness was able to identify
this particular jaw bone and skull, from these peculiarities.

It was also shown that the deceased disappeared about the middle of Feb-
ruary, 1879, under cu-cumstances which pointed strongly to her death by
violence. She was a woman of about fifty years of age, in humble life, liv-
ing with her son, a lad of about twelve years of age, in a small log cabin
near a river bank. Tlie little boy tcstiiioil tliat he last saw his niotlier on
the morning of her disappearance, at about 8 o'clock ; that they ate break-
fast together, and that when he returned from school about 4 o'clock in the
afternoon, his mother was not there, and that he never saw or heard of lier
since. Everything about the house and the woman's wardrobe wore
undisturbed, and the deceased v%-as not in the hubit of going from home.
It further api^eared that prior to her disappearance the prisoner, on one
or more occasions, had threatened to take lier life ; he knew lier and had
several times visited her house, and it was proved that some time be-
fore her disappearance he had been in the neighborhood. On the
4th of April, 1878, a human skull was found on the river shore near
the house in which the deceased had lived. The hair attached to the
skull was evidently that of a woman ; it was black and gray, corresponding
to the hair shown to have belonged to her : the skull showed marks of vio-
lence ; therr; were two wounds, either of which would be suflicient to pro-
duce dcatlu The court, upon this evidence tending to prove the corpus tlcUcti,
admitted the confession of the defendant And the jury found him guilty
of murder in the first degree, which finding the supreme court refused to
disturb. See cases cited : Rex v. Hendnwrsh, 2 Leach's Cr. Cas., 569 : McCul-
loch V. The State, 48 Ind., 109; Udderzool: v. The Com., 26 Pa. St., 310.

In Williams v. The People, 101 111., 383, held, tliat it was absolutely neces-
sary to a conviction for having received stolen goods, knowing tliem to Iiave
been stolen, that the prosecution should prove beyond a reasonable doubt
that a larceny of the things stolen had been committed. " This fact, being the
corpus delicti, cannot be established alone by the confession of the accused."

1. Pr.vctici

ciri'iiiu^

2. Same.— '

general
st'entl t'

3. Same — (

tlie act
niotivcf

./. J). (

F. S. h

Lkwis.

The pli
Pittsylviii
at Slioc'lco
there lieli
cutiou is I'

AvllicU [)!'(

sou oil \vl
or speciiil
sueh duty
same, ho s
niisdoinea
meat, as t
provides t
beoponed
vided tha'
of electio
prescribei
may solcc
of such a
luc nu
of tlio jud
2d (hiy of
duly selcc
of his sai

BOYD V. THE COMMONWEALTH.

Boyd v. The Com^ioxwealth.

(77 Va,, 53.)

Corruption in office: Statutory offense.

1. Practice — Pleading. — An indictment under a statute must state all tlio

cii.uaistaiices which constitute the offense as defined in the statute.

2. Same. — Tliough the offense, at common law or by statute, is defined in

general terms, yet the indictment nuist charge it specifically, and de-
scc'iid to particulars.

3. Same — Officials. — In an indictment for corrupt misbehavior in office,

the act must be distinctly charged as done knowingly and with corrupt
motives.

J. 1). Coles and W. W. ITcfirj/, for the appellant.

I\ S. Blah', attorney -general, for the common wealth.

Lewis, P., delivered the opinion of tlie court.

Tlic i)luintilf in error was indicted in the county court of
Pittsylvania county, for corrupt conduct as a judge of election,
at Shoekoo voting place, in said county, at a general election
tlierc lield on the 2d day of Xovemher, 1880. The ])rose-
cutiou is founded on section 4;J. chapter 8, of the Code of 187;),
wliich provides that "if any otlicer, messenger, or oilier per-
son on whom any duty is enjoined by law relative to general
or special elections, shall be guilty of any wilful neglect of
such duty, or of any corrupt conduct in the execution of the
same, lie shall, upon conviction thereof, be deemed guilty of a
misdemeanor,'' and shall be punished b^' line and imprison-
ment, as tlierein prescribed. Section 12 of the same chapter
provides tliat at all elections held under that act, the polls shall
be o|H'iied at sunrise on election day. And by section 8 it is pro-
vided lliat in tlio event of the failure of any judge or judges
of election to attend at the polls for one hour after the time
prescribed for opening them, the judge or judges in attendance
may select one or more qualified persons to serve in the ])lace
of sucli alisent judge or judges.

The iiulictment charges that tlio plaintiff in error, l)eing one
of the judges of election at the said voting place, on the said
2d day of Xovember, 1880, "at the general election aforesaid,
duly selected and appointed as aforesaid, and in the execution
of his said oilico, . . . then and there with threats, oppro-

AMERICAN CRIMINAL REPORTS,

brious language and menaces, did unlawfully, corruptly and
Avilfully prevent Edward B. Moon and James B. Fitzgerald
from qualifying and acting as judges of said election, at said
voting place, and from entering upon the performance of the
duties imposed upon tliem by law touching the holding, con-
ducting and certifying t]ie same." It avers that the said
Edward B. Moon and James B. Fitzgerald, together with tlio
plaintilF in error, had been appointed judges of election for the
said A'oting place, by the county court of the said county, at its
preceding April term, and that the acts complained of were
done within the space of one hour after sunrise on the said
2d day of Xovember, It then further charges as follows:
"That he, the said William B. Boyd" [the plaintilT in error],
. . . then and there, "and Avhilo in the discharge of the
functions of his said office, did unlawfully, wilfully aiul cor-
ruptl}^ select and appoint two other male citizens of said dis-
trict, to Avit, Willis II. Shields and Larkin D. Atkinson, to act
as judges of said election, in the place of the said Edward B.
Moon and James B. Fitzgerald, he, the said William B. Boyd,
Avell knowing, and at the time of said selection and appoint-
ment of said Shields and Atkinson as judges as aforesaid, that
the said Edward B. ]\[oon and James B. Fitzgerald were then
and there desirous to qualif}'^ and act as judges at said election
in conjunction Avith [him] the said Boyd, and were then and
there endeavoring to qualify and act as judges at said election
and to enter upon the performance of the duties imposed upon
them by hiAv as such judges."

These are all the facts and circumstances set forth in the in-
dictment upon Avhich the chargo of corrupt conduct on the
part of the plaintiff in error is based. Upon his ai)pea ranee in
the county court, he moA'ed to quash the indictment, but the
motion Avas OA'erruled. He then demui'red to the indictment,
and the demurrer AA'as overruled; and having been found
guilty by the jmy, and sentenced b}^ the court in accordance
Avith the A'erdict, he applied to the judge of the circuit court
of Pittsylvania county for a Avrit of error ; Avhich Avas refused.
Thereupon, a writ of error Avas awarded him by one of the
judges of this court.

The first error assigned, and the only one avo deem it neces-
sary to consider, is that the court erred in OA'erruling the mo-

tion to
demurrc

It is a
ing that
cumstanc
the act.
the intlic
guiltv of
insullicie
bo at coi
not sulHc
the sanu
the specie

Api)ly
conclusio
sufficient
acted unl
of unlaw
conduct, 1
thoi'ofore,
even by
selected a
their dutii
the ofTens

]\[oreov
and Fitzg
election a
that they
month of
to act as
may have
flees to 1:
expressly
visions of
Avere qual
show that
lau'fully li
ing. or in

In an ii

in ofilcc, f

Vol

BOYD r. THE COMMONWEALTH.

tion to quash the indictment, and also in overruling the
demurrer to the same.

It is a familiar and elementary principle of criminal plead-
ing that an indictment upon a statute must state all the eir-
cunistances which constitute the definition of the offense in
the act. so as to bring the defendant precisely within it. If
the indictment may be true, and still the accused may not be
guilty of the offense described in the statute, the indictment is
insufficient. So, where the definition of an offense, Avhothcr it
he at common law or by statute, includes generic terms, it is
not sulficient that the indictment shall charge the offense in
the same generic terms as in the definition; but it must state
the species — ^it must descend to particulars.

Ap])ly tlioso principles to the indictment before us, and the
conclusion is irreslstiljle that it is fatally defective. It is not
sufficient to sustain the indictment that the plaintiff in error
acted unlawfully merely. A judge of election may be guilty
of unlawful conduct, and yet not necessarily guilty of corrupt
conduct, in the discharge of his official duties. Conceding,
therefore, that the plaintiff in error unlawfully, by threats, or
even by acts of violence, prevented those Avho liad been
selected as his associate judges of election, from discharging
their duties, it docs not necessarily follow that he is guilty of
the offense for which he was indicted and convicted.

^[oroover, for aught that appears in the indictment, IVfoon
and Fit/gerald may have been disqualified to act as judges of
election at the time and place specified. It is true it is averred
that they had l)een duly appointed judges of election in the
month of A])ril preceding; but non constat they wercqualified
to act as such on the 2(1 day of Xovember, ISSO. The fact
may have beiMi that on that day they were candidates for of-
fices to bo filled at the election then held, and therefore
expressly forbidden to act as judges of the election by the pro-
visions of th(^ statute relating to election. But conceding they
were qualified to serve, there is nothing in the indictment to
slioM' that the jilaintiff in error acted cn)'ri'j)f/>/ — however un-
lawfully he may ha\e acted — in preventing them from so serv- ,
ing. or in selecting Shields and Atkinson to act in their places.

In an indictment against an ofiicer for corrupt misbehavior
in office, says AVharton, " it is necessary that an act imputed
Vol. I V— 10

146

AMERICAN CRIMINAL REPORTS.

as mibbehavioi' be distinctly and substantially charged to have
been done with corrupt . . . motives, and, above all, with
knowledge that it was wrong, though there are no technical
words indispensably required in which the charge of corruption
shall be made. It is otherwise, however, in neglects and in
cases where bare acts are made indictable irrespective of in-
tent." 2 "Whai't. Criminal Law, sec, 2518. See, also, JacoU
and others v. Commomoealth, 2 Leigh, 709; Pco])le v. Coon, 1
Wend., 277; Slate v. Buxton, 2 Swann (Tenn.), 57.
' It is needless to say more. It is plain that the indictment
lacks the certainty and precision required by the established
rules of criminal pleading, and that the county court erred in
overruling the defendant's motion to quash the indictment,
and afterwards in overruling his demurrer to the same.

The judgment of the county court must thei'cfore be reversed,
the verdict of the jury set aside, and the plaintiff in error dis-
charged from further prosecution under the said indictment.

Gkise v. The State.

(37 Ai-k., 450.)

Cruelty to ammals.

1. Cruelty to animals— Construction op statute.— Tlie terra "nocd-

leasly," in the act "for the prevention of cruelty to animal!^," means an
act done without any useful motive, in a spirit of wanton cruelty, or
for the mere pleasure of destruction.

2. Same — Burden of proof.- The burden of proof was upon tho state to

show not only tho killing, but that it was done under such circuinstancrs
a3, unexplained, would authorize tho jury to believe that it was }ieccUcss
in the sense of the statute.

3. Same— Useful object in killing.- However unlaAvful the act may he,

and whatever penalties might be incurred under other sections of tho
statute, tho defendant should not be convicted under an indii-tnicnt upon
the particular section of the statute, if he had some useful object in tho
killing, such as the protection of his wheat and corn.

Appeal from Logan Circuit Court. Hon. J. II. Rogers, Cir-
cuit Judge.

G. B. Moore, attorney-general, for the state.

The opinion states the case.

Eakin, .
]\rarch 11
TIio first 1
Icssly mut
indictmcn
needlessly
tiiro. No

The pro
appolliint J
on the he
was in a fi
Avcra grow
tvc:i|);issinf
cdly a})pli
tliom out
were ar'air

(>gain in a]
circuiustan
at one \Ao\

On defei
pig luul be
tended far
could easi!
fence, and

There w
tending to
all of whic
of tho res
Payment t
the sense o
tion aggra

Upon th
refused tin
own niotio:
giiilty and
trial upon
asked; in
because tin
Avas refuse*

This cou

GEISE V. THE STATE.

147

E.vKiN, J. The appellant was indicted under an act approved
IMarcli 11, 1879, "For the prevention of cruelty to animals."
The first section, infer alia, makes it a misdemeanor to need-

lessly mutilate or kill "

any living creature." The

indictment simply charges that appellant did, unlawfully and
needlessly, kill a hog, of the value of $5, being a living crea-
ture. No allegations of value or ownership were essential.

The proof on the part of the state tended to show that the
appellant had killed a pig belonging to a neighbor, by a blow
on tlie head with a stick, producing sudden death. The pig
was in a Hold belonging to appellant in which corn and wheat
Avcro growing. It had, before that time, been in the habit of
trc:ipassing tliere with others, and the defendant had repeat-
edly a})plied to the owner, a lady, to pen her hogs or keep
tlioni out of his field. This for a while she did. But they
were again turned out, and the one in question being found
5^gain in appellant's lield, he killed it on the spot, Avith no more
circumstances of cruelty than would attend the taking of life
at one blow.

On defendant's part the proof — besides showing that the
pig had been several times i if the field eating corn and wheat —
tondo'l farther to show that it was a very small one, which
could easily get between the rails of any ordinary country
fence, and that there was around that field a very good fence.

There was proof on both sides as to the value, aiul some
tending to show that appellant had paid the value to the owner,
all of which was entirely irrelevant, save as it might, as part
of the res (jcstcc, show the purpose or motive of the killing.
Payment to the owner coidd not atone it if it Avcre need/ess in
the sense of the statute, nor would failure to make compensa-
tion aggravate the offense.

Upon the trial, defendant asked six instructions, which were
refused throughout. In lieu thereof the court gave two of its
own motion — all against objection. The defendant was found
guilty and sentenced to a fine of $2. lie moved for a new
trial upf)n the grounds of error in refusing the instructions
asked; in giving those by the court of its own motion; and
because the verdict was against law and evidence. The motion
was refused and he appealed.

This court is called for the first time to construe a now stat-

lis

AMERICAN CRIMINAL REPORTS,

ute, belonging to a class which must ever be more or ]ck; vague
in their meaning, and extremely difficult of administrulion.
The_y are the outgrowth of modern sentiment, and arc of com-
paratively recent origin. They attempt to transcend what
had been thought, at common law, the practical limits of nui-
nicipal government. They sprung, originally, from tentative
efforts of the Xcw England colonists to enforce impt rfect, but
well recognized moral obligations; a thing much more practi-
cable in small, isolated communities than in populous govoin-
ments. They first had in view only to compel bcnevolcuco
and mercy to those useful animals, which, being domesticated
and Avasting their lives in man's service, Avere supposed to l)o
entitled to his kind and humane consideration. Sucli statutes
appealed strongly to the instincts of humanity. They were
adopted in many of the states, and recently in England ; and
tlie impulse Avhich favored them has endeavored to enlarge
their beneficence, until, in our laAV, they are made to embrace
" all living creatures."

It is obvious that laws of this class, pressed to this extreme
limit, must be handled by the co^u'ts with great care, and wo
feel it due the legislature to do so, to prevent their becoming
dead letters. They must be rationally construed Avitli refoienco
to their true spirit and intention. It must be kept in mind that
they are not directed at all to the usual objects of muuicij)al law,
as laid down by Elackstone. For example: Thoy are not made
for the protection of the absolute or relative rights of ])ersoiis,
or the rights of men to the acquisition and enjoyment of prop-
erty, or the peace of society. They seem to recognize an attempt
to protect some abstract rights, in all that aninuito creation,
made subject to man by the creation, from the largest and
noblest to the smallest and most insignificant. The rights of
persons and the security of property and the public peace are
all ])rotected by other laws, Avith appropriate sanctions. Tlie
objects of the two classes should not be confounded. It Avill
lead to Iiopeless confusion. The peculiar legislation Ave are
now called to discuss must be considered wholly irrespective of
property, or of the public peace, or of the inconveniences of
nuisances. The misdemeanors attempted to be defined may
be as well perpetrated u])on a man's own property as another's,
or upon creatures the property of no one, and so far as one act

is concern
refined nn
or in the s

It is in 1
tliem, if p
such absui
letters. I
Society, fc
Avhich mi<i
impale a I
kittens, to
Such laws
their obje(
pro]icrty, (
.sequences
intemled.
ful in elev;'
all Ciod's
fthough res
judge fron
guiue hope
may pract
co-operate
Avarrant.

There ai
pass, and c
chief and
indictment
ai)[)licable
They shou]
the Individ
damages f(
lout aggrt
indictment
a substituti
•needlessly
state to sh(
such circui;
believe tha
coutrovers

GRISE V. THE STATE.

149

is concerned, it is all the same Avlicthcr the acts bo done amongst
renucd men and women, Avhose sensibilities Avould be shocked,
or in the solitude of closed rooms or secluded forests.

It is in this view that such acts are to bo construed to give
them, if possiljle, some bcnellcent effect, without running into
siicli absurdities as wouhl, in the end, make them mere dead
letters. A literal construction of them would have that effect.
Society, for instance, could not long tolerate a system of laws
which might drag to the criminal bar every lady Avho might
impale a butterfly, or every man who might drown a litter of
kittens, to answer there, and show that the act Avas needful.
Sucli laws must be rationally considered, with reference to
their objects, not as the means of preventing aggressions upon
property, (otherwise unlawful; nor so as to involve absurd con-
se(piences which the legislature cannot be sup]iosed to have
iutomled. So construed, this class of huys may be found use-
ful in elevating hunuiuity by enlargement of its sympathy Avith
all God's creatures, and thus society may be improved. Al-
♦though results in other states and in England have not, as wo
judge from the paucity of decisions, been such as to ex'cite san-
guine hopes, yet to a limited extent the objects of the huvs
may })ractically be obtained. It is the duty of the coui't to
co-o[)erate to that end, so far as the rules of construction may
warrant.

There arc civil laws for the recovery of damages foi* tres-
pass, and criminal laws for the punishment of malicious mis-
chief and tre;-!i)ass and injury to projjerty. In a suit or
imlictnieut under these, there are appropriate defenses, not
applicable to an indictment for cruelty or for needless killing.
They should, one or the other of them, have been resorted to by
the individual or tiio state, if the object had been to recover
(huiiages for the loss of the pig, or to protect society from vio-
lent aggressions on ])roj)erty. The law under which this
imlictMient was framed has no such object, and cannot lie nnido
a substitute for the others. The issue was, did the defendant
needlessly kill the pig? The burden of proof was upon the
state to show not only the killing, but that it Avas done under
such circumstances as, unexplained, would authorize the jury to
believe that it Avas needless in the sense of the statute. The
controversy does not turn at all upon the lawfulness or unlaw-

150

AMERICAN CRIMINAL REPORTS.

fulness of the act, except in so far as the statute itself might
make it unlawful as needless.

From the view we have taken of the nature and scope of
this class of acts, it it obvious that the term "needless" cannot
be reasonabl}^ construed as characterizing an act which miglit
by care be avoided. It simj)ly means an act done witliout
any useful motive, in a s])irit of wanton cruelty, or for tho
mere pleasm'e of destruction. Other portions of tho act arc
directed to prevent undue torture or suffering, which do not
come here in question. However unlawful the act may bo, and
whatever penaltief might be incurred under the statute:^, llio
defendant should not, under this indictment, have been con-
victed if he had some useful object in tho killing, such a;i tho
protection of his wheat and corn.

The provisions of different statutes must bo regarded, iuid
acts really criminal must be punished under appropriate indict-
ments. Malicious mischief and needless killing are distinct.

The defendant, in effect, asked tlie court to insti'uct :

Fli'st. That the burden was on the state to show not only
the killing, but that it was needless, and tliat " needless " nu-aiit
a killing in mere idle wantonness, without being in any sense
whatever beneficial or useful to defendant.

Second. That it was for the jury to determine whollior or
not it was " needless," and that they might consider tlio fads
that the pig was found in the field where there Avas corn and
wheat, that it had frequently been there before, and all other
facts and circumstances in evidence.

Third. That the jury nmst find before conviction tluit ihvw.
was no necessity or cause wliatevcr for the defendant to kill
the animal.

Fourth. That considering the circumstances, if the jury
found that the animal was trespassing upon tho defendant's
crops and destroying them, and that ho had up to the tinu! of
the killing used all reasonable means to prevent it, and that llui
act of killing did prevent it, they would be warranted in find-
ing that it was not needless.

Fifth. That the Avord " needlessly," used in tho statute, re-
lates to a wanton and cruel act, and not to one which is tho
result of necessity, or reasonable cause.

8ixth. That unless the defendant was guilty of wanton and

GRISE V. THE STATE.

161

neccllcss acis of cruelty to the animal, resulting in unjustifiable
physical pain, they should acquit.

We think that the spirit of all the foregoing instructions,
except tlic last, was in harmony with the true intent and mean-
injr of the act — as nearly so as moral acts can be characterized
by the formulas of language — at all times a difficult task. They
are very nearly in accord Avith the views we take of the statute.
The last was erroneous. A needless killing could not be justi-
fied by an easy death. Cruelty was no part of the charge,
althouirh it is made criminal under the other sections.

The instructions given by the court, of its own motion, were
as follows :

First. That the proof of killing a pig would support the
allegation of the killing of a hog.

This is unquestionably correct.

Second. "If the jury believe fi'om the evidence that de-
fendant, in this county," etc., . . . "needlessly killed the
animal mentioned in the indictment, they should convict, not-
withstanding it may have been trespassing within defendant's
inclosurc at the time it was killed. 'Keedlessly' means with-
out necessity, or unnecessarily; as where one kills a domesti-
cated animal of another, either in mere wantonness or to satisfy
a depraved disposition, or for sport or pastime, or to gratify
one's anger, or for any other unlawful purpose."

But for the last clause of this instruction, it would not be,
in the abstract, subject to criticism, but it is, we think, errone-
ous in holding all killing needless, in the sense of the statute,
done for an unlawful purpose. For unlawful trespasses, other
remedies are provided. There are other statutes for their pro-
hibition. All acts of killing are not " needless," in the mean-
ing of the statute, which are unlawful. A man, for instance,
might kill his neighbor's sheep for food, Avhicli would be un-
lawful, and either a trespass or felony, according to the cir-
cumstances; but such killing could not, Avith any show of
reason, come within the intention of the act in question. The
lawfulness or unlawfulness of the act has really no bearing
upon its character as charged.

Had the last clause been omitted in this instruction, it would
not, however, have been sufficiently instructive in all points to
have caused the refusal to give the defendant's first five in-

152

AMERICAN CRIMINAL REPORTS.

structions, in substance, as asked. He was entitled to have
tliem pui'ticularly impressed upon the jury in a matter wliich,
being new, they might misapprehend.

The lirst of the English statutes directed to the enforcement
of benevolence and kindness to inferior animals was i)assed in
1822. It was to prevent " cruel and improper treatment of
cattle." It contained a provision that, " if the complaint
should appear to the magistrate on the hearing to be fiivolous
or vexatious, then the complainant was to be ordered to pay to
defendant any sum of mone^', not exceeding the sum of twenty
shillings, as compensation for the trouble and expense to
which said party may have been put by such complaint."

This was a wise precaution. The case now before us is
strongly suggestive of the necessity of some such safeguard in
the administration of the statute of much wider scope, em-
braciig all living creatures. This is a inatter, however, for
the legislative department. The power of the judiciary only
extends to see that a statute, so well intended, shall not be ex-
tended to absurd consequences, and brought into contempt by
too literal a construction of language.

For error in overruling the motion for a new trial, reverse
the judgment, and remand the cause for further proceedings,
consistent with law and this opinion.

Eevkolds v. The State.

(68 Ala., 502.)

Dying declarations: Other evidence of same facts.

1. Dying declarations are admissible only in cases of homicide, when the

death of the deceased is the subject of the charge, and the circumstances
of the death the subject of the declarations.

2. They are inadmissible when they relate to facts unconnected with the

declarant's death.
8. If they wore made under a sense of impending dissolution, it matters not

that death did not ensue for a considerable time thereafter.
4. There is no rule which would exclude them because the circumstances

producing and attending the death can be shown by other evidence.

From t
II. C. Spt

//. 0. 'i

HoMK'.iV

cases of li
joct of til
subject o
Cr. Cases
"to ident
circunisla
fvo;u wlii
Brick. ])i/

AVlion,
tions, and
tra'-ing o
iualiuissil
sou, there
himself a:
conip..'ten
Ala., 103.

Tlioy m
dissohitioi
until a CO
Whart. Ci
hnuicdiat(
in point o
Ev., § 15S
made afte
tluit lie wj
thorize th'
JoJuimn. V

And, al
on the })i'i
exclude it
of witness
producing
impractie;
reasons w
deuce. 1

KEYNOLDS v. THE STATE.

From tliG Circuit Court of Limestouo. Tried before tlic Hon.
II. C. Speiike.

//. 0. TomJans, attornej^-goneral, for the state.

Su^rI;!iVILU•;, J. Dying declarations are admissible only in
cast's of homicide, Avhere the death of the deceased is the sub-
ject of the charg-e, and the circumstances of the death arc the
subjocfc of such declarations. 1 Greenl. Ev., § 150; 2 Lead.
Cr. Cases (IJ. A: II.), 2152, In other words, they are adndtted
"to identify the prisoner and the deceased, to establish the
circums'uuices of the res gedtv, and to show the transactions
from which the death results." AVluirt. Cr. Ev., § 2TS; I
Brick. Dig., p. 511, § 801; Clark's Cr. Dig., § 355.

When, however, they relate to former and distinct transac-
tions, and embrace facts or circunistances not immediately illus-
trating or connected with the declarant's death, they are
ina Imisslble. Id. The dying declarations of a deceased per-
son, therefore, showing the state of feeling existing between
himself and a defendant charged with his homicide, are not
conipLitent evidence for the prosecution. Ijoi v. Tlte State, 37
Ala., 103.

Tliey must, of course, be uttered under a sense of impending
dissohition, and it does not nuitter duit death failed to ensue
until a considerable time after such declarations were made.
Whart. Cr. Ev., §§ 282, 280. '' It is the impression of almost
inmiediato dissolution, and not the rapid succession of death
in point of fact, that renders the testimony admissible." 1 Gr.
Ev., j5 158. If it appear from the statement of the deceased,
made after he was fatally wounded, that ho knew or thought
that lie was in extremis, this Avould clearly be sufliciont to au-
thorize the introduction of his declarations made at such time.
John mil V. State, 47 AJa., 9.

And, altliough it is often said that such evidence is tolerated
on the principle of necessity, we know of no rule Avhich would
exclude it where there is other, and even undisputed, testimony
of witnesses detailing the cause of death and the circumstances
producing and attending it. A rule of this character would be
impracticable in its application, and antagonistic to the weighty
reasons which sanction the admission of this species of evi-
dence. 1 Greenl. Ev. § 15G; Whart. Cr. Ev., § 276.

154

AMERICAN CRIMINAL REPORTS.

Tho (lying declarations of the tleceased, in this case, were
clearly admissible in the light of the above principles. He
knew that he Avas in extremis, and his utterances related to the
circumstances immediately attending tho killing, except the
declaration that "he had nothing against the defendant, and
did not know that defendant had anything against him," This
part of the evidence should have been excluded, if properly
pointed out and objected to as illegal. But the objection wan
to the declarations as a whole, and a part of the evidence beiny
admissible there was no error in refusing to exclude it. Shorter
V. State, G3 Ala., 129; Brown v. State, 52 Ala., 349.

Tho admission by the court of the cumulative testimony
elicited on tho rebutting examination of McClellan v/as not
sm-h. an error as will authorize tho appellate court to rcncrso
the judgment in tho cause. It is true, that, as to new matter,
a party cannot ordinarily re-examine a witness in rebuttal;
but, if tlie nt'fil pr/'iis court, in its discretion, sees fit to pevmit
it, such ruling is not reviewable on appeal. 1 "NVhait. Ev.,
§§ 572, 571:; Borland v. 2Lai)o, 8 Ala., 104; Fant v. Cathcart,
id., 725.

Exceptions are required to bo taken during the progress of
tho trial and before tho jury leave tlie bar of the court; other-
Avise tlioycomo too late. A statement, therefore, in the bill of
exceptions, that "the defendant excepts" to any ruling or
action of tho court, may not ah\'ays bo sufficient. 1 iJrick,
Dig., p. 21(1, §§ 58-61.

Tho judgment entry in this case is regular, reciting tlio
proper organization of the jury, tho arraignment of tiio pris-
oner, tho plea of " not guilty," and the other incidents of tho
trial. The record is, however, contradicted by tho bill of ex-
ceptions, which shows that the jury was selected and sworn
before tho prisoner was arraigned and pleaded to the indict-
ment. If this ^'— -e an error, there was no objection interposed
at the timo to tlie proceeding, in the form of an exception or
otlierwise, and hence no (piestion is presented for tho consider-
ation of the appellate court.

The prisoner has nothing to complain of in the sentence of
the court. Tho first sentence, it is true, was erroneous, by
reason of a failure on the part of the presiding judge to first
ask the prisoner if he had anything to say why the sentence

PAYNE V. THE STATE.

155

of the law should not bo pronounced upon him. But this ir-
regularity was fully cured by again calling- him to the bar and
re-imposing the sentence in accordance with the retpiircments
of law.

We find no error in the record, and the judgment of the cir-
cuit court is hereby affirmed.

Payne v. The State.
(ClMiss.^101.)

DYINa DEC'L-IBATIONS.

1. DYiN'a DncT-.VRATiONS — Other evidence op same facts.— Dying decla-

rations are admissible in evidence, although the facts which they tend to
estal)lish may be proved by other testimony.

2. Samr — Opiniom or in-ferkn-ce.— Tlie declarant's assertion that the ac-

cused shot him without cause is not an inference or opinion, but lu3
statement of a fact, and is admissible in evidence.

Appeal from the Circuit Court of Do Soto County. Hon.
A. T. Iloane, Judge.

W/iifc ct" Morgan, for appellant.

T. C. Catchings, attorney -general, for the state.

Campuell, C. J., delivered the opinion of the court.

It is not a valid objection to the admission of dying declara-
tions that the facts sought to be established by them may be
proved by other witnesses than the decedent. Such declara-
tions are admissible only as to the circumstances of the killing,
and are restricted to a statement of facts and opinions, and in-
ferences are to bo excluded ; but the dying declaration admitted
in this case was of a fact and not an opinion or inference of
the declarant. It was that the defendant shot him without
cause. It was not error to admit this declaration. Wroe v.
State, 20 Ohio St., 400.

Judgment affirmed.

Note. — Dying declarations are admissible when made under a sense of
impending dissolution although death may not in fact ensue for seventeen
days afterward. Loivry v. State, 13 Lea (Tenn.), 143.

It is not necessary that each witness testifying to a dying declai-ation

156

a:vierican criminal reorts.

should definitely fix the belief of the person making the declaration that
death was imminent. Tlie sense of impending dissolution may be shown by
one witness, and the declaration proved by another. People v. Garcia, 63
Cal., 19.

Such declarations are admissible only as to those things to which the de-
clarant would have been competent to testify if sworn in the case ; and whore
deceased, who was shot at night m the house, from tlie outside, through
iiu aperture, declared while in extremis " it was E. W. wlio shot me, tliougli
I did not sec him," held, that the declaration was inadmissible, being merely
the expression of the opinion of the deceased. State v. Williams aiulAveri/.
67 X. C, 13.

Declarations to the effect that the prisoner, who was one of his emi)loyer";i
slaves, " was the only slave on the place who was at enmity wltli him,"' an'
not competent evidence against the prisoner. Muses v. State, oo Ala., 4'.21.

The weak condition of mind of the dednrant does not render his stab-
ments inadmissible, but wlieu it appears that ho was in .such condition of
mind that he did not fully comprehend all that was said to him at the time
of making tlie statements, they are not entitled to much weight and would
not alone sustain a vei'dict of guilty, Murphy r. The People, o7 111., 117.

Dcelurations of the deceased of the eireitmstaiiecs attendiiiy the difji-
cidtjj. The narration of the deceased of tlio circumstances of the dilliculty,
several minutes after it had ended and the accused bad withdrawn- from
the scene, are not admissible unless part of tlie res gesta'. Kramer v. Slate,
Gl Miss., 158.

TJie declaration of the injured jiarly. made a few minutes after the
eiK'ounter in which he was shot, under circumstniices wliii'li it was un-
reasonable to suppo.so that there was time or cajtacity to fjibriciite a story,
are admissible as part of the res (jest'r. Kirb// r. Com., 77 Va., 081.

On tlio trial of an indictment for the murder of an olUcer in the dis-
charge of his duty, the wife of the deceased, l)eing called as a witness for
the prosecution, vas permitted to state that the iirisoner's fatlier ( iune to
the house of the deceased in tlie evening of the day of the homicide, and
informed hiin that the accused had Just been committing a breach of the
peace, and reipiested the deceased to go and arrest him. and that tlie de-
ceased said, as he left the house with the fatlier of tlie prisoner, tliat be was
going to arrest " Chip Smith," meaning tlie prisoner, it was held the evi-
dence was admissible; that if the ofTicer believed a Invaeh of tb(> peace iuid
been committed, as the father of the prisoner stated, and as lie made tlio
arrest witliout a warrant, it was proper for the state to show that lie acted
in good faith, and upon speedy information of some one claiming to have
per'.unal knowleilge of the facts. AVhat the deceased said, when leaving liis
bouse, was manifestly admissible as ])art of the res ycsta'. State v. Smith,
49 Conn., 370; Iliinter v. State, 40 N. J., 538.

STATE OF ILLINOIS v. FLETCHER.

157

State of .Illinois v. Fletcher.

(23Fed. Rep., 77C.)

Electiox: Commission of crime by United States officer — Jurisdiclio7i.

Federal election — Cojunssiox op cuijie — United States officer,
ETC. — Pctitiouois wero indicted bj' the gi'aud jury of the criminal court
of Cook county for the crime of nuirder, and petitioners alleged inter
alia that they were duly appointed and qualified deputj'-niarshtils of the
United States, and assigned to duty at an election to choose a represent-
ative in congress of the United States ; that as sucli officers it was theii'
dutj' to keep thy peace and in-eser%-e order at the polling place; that a
disturbance occurred at said election between one Smith, a deputy-mar-
shal of the United States, and a lai'gc number of oth(>r percons incited
thereto by special constables of Cook county ; that in order to cpiell said
disturbance petitioners took said Smith into custody and were proceed-
ing with him to the office of the United States commissioner to make
complaint against him for distui'bing the peace, when assaulted and fired
ui)on by a large number of armed men, among whom was the deceased,
who threatened petitioners and said Smith unless petitioners turned
over said Smith to tlie state authoi-ities ; that, refusing to comply with
this dcTuand, they were fired upon, and some one of the attacking party
killed deceased. The petitioners prayed that a writ of Judtcas corpus
cum causa issue, directed to the criminal court of Cook county, requir-
ing that c()urt to stay .all further ])roceedings against petitioners, and
thai, the suit be renioved under the iirovisions of section 013 of the
Revised Statutes of the United St ;tes. Held, that the mere holding of
a commission .as deputy-marslials of the United States, under the cir-
cumstances set forth in the jietition, did not withdraw the case from the
Jurisdicti:)!! of the state courts; that there is no federal statute making
a disturbance at the polls an offense against the United States, .ind an
Smith wiis violating a state law, petitioners had a right to arrest him
and turn him over to the state authorities; that the fact that he was a
deputy-ma "shal of the United States entitled him to no more considera-
tion or protection tlhin others eng.aged in the same disturbance. Held,
also, tliat the case differed from one in which depnty-Tuarshals of the
United States, in repelling force by force in defense of themselves or
their prisoners, shot and killed an assailant.

Petition for rcnioval of case to circuit court.

lilehard S. T"f/u'/l, United States district attorney, and C.
II. Ddiceti, assistant United States district attorney, for peti-
tioners.

Gkksiiam, J. The sworn petition of John Flotclier and Julius
Yattaw states that on the 2Uth day of November, 1SS4, they
aEd_ James Smith were jointly indicted in the criminal court of

158

A3HERICAN CRIMINAL REPORTS.

Cook county, Illinois, for the crime of murder upon one "Will-
iam Curnan, by which a criminal prosecution Avas begun in
the name ami by the authority of the people of the sl;ii <»f
Illinois, against the petitioners, which is now pendin<4 lu iJio
state court, and upon which they are confined in the county
jail of Cook country awaiting trial. After further stating that
at the time the alleged killing and murder occurred, namely,
on the 4th day of I^^ovember, 188-i, the petitioners and James
Smith, their co-defendant, were duly appointed and qualified
deputy-marelials of the United States, and assigned to duty at
the third clcctiou district of the second ward of the city of Clu-
cago, at an election to choose a representative in the congress
of the United States, the petition proceeds :

" And that each of your petitioners Avas then acting under
color of said oflice, and in pursuance of said law ; and that the
act, for the alleged commission of which said arrest was made
and said subsequent proceedings against your petitioners were
had, was done, if done at all, in their own necessary self-defense,
and while engaged in the discharge of their duties as deputy-
marshals as aforesaid ; . , . that, as such officers, it was their
duty to keep the peace and preserve order at the polling place
aforesaid; that, on the said itli day of November, iit said poll-
ing place, a disturl)ance and breach of the peace occurred
between said James Smith, then and there a deputy of the
marshal of the United Stiites for said northern district, and a
large number of persons incited thereto by special constables
of said Cook county, Avhose names are, to your petitioners, un-
known; that said constables and said large numl)er of ])ersons
were then threatening said Smith with personal violence and
injury; that your petitioners, as such olficers aforesaid, in order
to quell said disturbance, and to protect said Smith, and to
preserve order at the polling place aforesaid, then and there
arrested said Smith and took him into custody; tliat Avliilo
your petitioners so had said Smith in custody, and were, Avith
liim, peacefully and lawfully proceeding to the ollicc of i'liili])
A. Iloyne, Esq., commissioner of this court, therv) to make
complaint against him, said Smith, for disturbing the i)cace at
•said })olling place, they Avere assaulted and fii'cd upon with
pistols and other deadly AA^eapons in tiie hands of a largo body
of armed men, among whom Avas said Curnan, greatly out-

numl)erin
and said 1
Harrison-
petit ionei
and niailo
nan; but
known, tl
said Ciirn
mciitionei
prosccutic
done, if (.1
aforesaid,
lawfully
Statutes t
The in-i
issue, dire
that cour
tioncrs; t
anil deter
the Unite
his custo;
indictmen
The moti
So nuicli (
any civil i
any ollice
of any ac
jcct of th
or author!
any of tli
at any tii
moved foi
district w
of such d
uro of the
on the do
cause oriti
prosecuti(
ing by wli
to issue I

STATE OF ILLINOIS v. FLETCHER.

159

numbering your petitioners, who threatened your pot i Honors
and said Smitli, unless your petitioners took said ISmitli to tlie
lIiuTison-strcct pohee station, in the city of Cliicago; and your
petitioners aver that they iired no shot at their said assailants,
and nuido no attack upon them whatever, or against said Cur-
nan ; but they aver and state that some poj'sun to them un-
known, then attacking your petitioners, did shoot and kill the
said Ciirnan, as they believe, which is the murder and killing
mentioned in said indictment ; and your petitioners aver the said
prosecution was begun and commenced against them for acts
done, if done at all, by your petitioners as deputy -marshals as
aforesaid, and while in the performance of their duty while
lawfully acting under the provisions of title 20 of the llevised
Statutes of the United States — the 'Elective Franchise.'"

Tlie prayer is that a writ of haheas corpus cum causa may
issue, directed to the criminal court of Cook county, requiring
that court to stay all further proceeding against the ])eti-
tioners ; that the suit bo removed into this court for hearing
and determination ; and that this court direct the marsiial of
the United States for this district to take the petitioners into
his custody, and hold them for further orders. A copy of the
indicUuout is attached to the petition, and made a })ai't of it.
The motion is based upon section Gi?> of the Ecvised Statutes.
So nuich of this section as need be noticed provides that when
any civil suit or criminal prosecution is commenced against
any ollicer of the United States, or other person, on Jiccount
of any act done under the provisions of the act upon the sub-
ject of the elective franchise, or on account of any right, title
or authority claimed by such officer, or other person, under
any of tlie ])ro visions of that act, such suit or prosecution may,
at any time before the trial or final hearing thereof, be re-
moved for trial into the circuit court next to be holden in the
district where the same is pending, upon the veriiied ])etition
of such defendant to such circuit court, setting forth the nat-
ure of the suit or prosecution. The case is thercu))on ontcrctl
on the docket of the circuit court, and proceeded with as a
cause originally commenced in. that court. When the suit or
prosecution is commenced by capias, or any form of proceed-
ing by which a jjcrsonal arrest is ordered, the clerk is requested
to issue a writ of habeas corpus cum causa, a duplicate of

Th' .Vi^-^W OF

iist"i-Ai.«Qcim

100

AMERICAN CRIJIINAL REPORTS.

Avliich is delivci'od to the clerk of the state court, or left at the
office by the marslial of the district or his deputy, or by some
person didy authorized tliereto ; and thereupon the state couvt
is obliged to stay all further proceedings in the case; and tlic
suit or prosecution, on the delivery of such process, or leaving
the same as aforesaid, is lield to be removed to the circuit
court, and any further proceedings, trial or Judgment therein
in the state court become void. If the defendant in tlie suit
or prosecution be in actual custody on mesne process tlierein,
it is the duty of the marshal, b}' virtue of the writ of haleas
corpus cum causa, to take the bod\' of the defendant into his
custody, to be dealt -with in the case according to law and the
order of the circuit court, or, if in vacation, hy any judge
thereof.

If the petitioners have been indicted in the state court for
an act done by them Avhile fairly in the lino of tljcir duty as
doputy-nuu'shals of the United States, at one of the polHng
places in the city of Chicago at the late election, at wliicli a
representative in congress was voted for, aiul tliat fact ap-
pears in tlic petition, the case may bo removed to this court
for hearing. IC the petition simply averred that the defend-
ants stood indicted in the state court for an act done by tliem
as deputy-marshals, or undei* color of their oilice, or the law
autliorizing their appnintniont and defining tlieir po\v(>rs and
duties, without descril)ing the act or circumstances under wliich
it was committed, it would, perhaps, be the right and duty of
this court to assert jurisdiction of the case; at least, until it
should appear that the claim was iinfounded. 2\>nnessee v.
Davis, 100 U. S., 257.

It is charged in the indictment that the petitioners shot and
murdered William Curnan on the 4th day of Xovemlx'i', 1SS4,
in the county of Cook and state of Illinois, and the petition
distinctly asserts that "neither of them fired any shot or did
any act by reason of which the said Curnan came to his deatli,
as set forth in the indictment." If they neither did tlie shoot-
ing nor in any way contributed to Curnan's dcatli, it follows
that they have not been indicted for any act or acts done by
them as de|)uty-marshals of the United States, and this court
has no liglit to mterfero with the jurisdiction of the state
court. It iS truo, the petition contains an averment that tho

indictmen
them, if t
while in t
the killing
short of i
they stanc
(leputy-mi
autliority
case from
liolding o
States at 1
offense an
ground fc
case. Th(
ant in the
and a nun
stahlcs of
breach of
l)y the spc
violence;
said Smith
the petitio
iug with h
tlie United
(hstuvlting
upon by a
deceased, '
ilarrison-s
tlu'eatened
and that, r
u{)t)u, and
Curnan.
pears for
duty as a (
of the ])ea
against tli
might hav
the Unite(
Instijad of
engaged ii;
Vol

STATE OF ILLINOIS v. FLETCHER.

161

indictment was found against the petitioners for acts done by
them, if done at all, as deputy-marshals of the United States,
while in the performance of their duties as such. They did
the killing or contributed to it, or they did not ; and nothing
short of a positive averment that they did the act for which
tlicy stand indicted, and did it in the line of their duty as
(leputy-nuirshals of the United States, or under color of their
aiitliority as such officers, will entitle them to a removal of the
case from the state court to this court for trial. The mere
liolding of a commission as a deputy-marshal of the United
States at the time a party is indicted for murder, or any other
oircnse against the laws of a state, is not of itself sufficient
ground for depriving the state court of jurisdiction of the
case. The petitioners state that James Smith, their co-defend-
ant in tlie iiulictment, and also a deputy .United States marshal,
and a number of other persons incited thereto by special con-
stahlcs of Cook county, were engaged in a disturbance and a
hroach of the peace at the polls; that Smith was threatened
by the special constables and such other persons with personal
violonco; that "in order to (jucll said disturbance and protect
said Smith, and to ])reserve order at the polling place," they,
the petitioners, took Smith into custody; that while proceed-
ing with him to the office of Philip A. lloyne, a commissioner of
the United States, there to make complaint against him "for
(listini)ing the peace at said polling place," they were fired
upon by a large body of arn^ed men, including Curnan, the
deceased, who demanded that Smith should be taken to the
Ilarrison-street police station, in the city of Chicago, and
threatened both them and Smith unless he was taken there;
and that, refusing to comjily with this demand, they were fired
upon, and some one of the attacking party shot and killed
Curnan. It is not claimed by the district attorney, who ap-
pears for tlie petitioners, that Smith was in the line of his
duty as a deputy-marshal when he was engaged in the breach
of the peace at the polls, or that he had committed an offense
against the United States for which Commissioner lloyne
might have held him for trial, or for which any court of
the United States had jurisdiction to try and punish him.
Instt;ad of doing his duty as a deputj'-marsiial, Smith Avas
engaged in a disturbance and breach of the peace ,it the polls.
Vol. IV — 11

AMERICAN CRIMINAL REPORTS.

The petitioners liad a right to arrest him for this offense, and.
i:i a reasonable time, turn liim over to the proper state autlior-
ities. He was simply a lawbreakei', and the fact that he was
a deputy-marslial of the Uii'ted States entitled him to no more
consideration or protectior than others engaged in the same
disturbance and breach of the peace. The district attorney
admits that there is no federal statute making a disturbance at
the polls amounting to a breach of the j)eace an offense
jigainst the Ignited States. This is not a case in which doputy-
marslials of the United States, in repelling force by force in
defense of themselves or their pi'isoner, sliot and killed an as-
sailant. Smith had violated the laws of the state, and the
petitioners refused to turn him over to the state authorities.
They held him, it miiy be fairl}' inferred, to protect him ho-
eauso he was a deputy United States marshal, and to take him
before Connnissionerlloyne, who had no jurisdiction to hear ;i
complaint against him or to detain him.

The order prayed for is denied, and the petition is dismissed.

State v. IlrrcniNsoK".

(CO Iowa, 478.)

EiiBEZZLEMFTNT: Emdciicc — Estoppel — Limildiions.

1. Estopped does not apply to criiIINAL cases. — Tln^ (Icfendant, wlio

had been a comity tr'-asuror frf)m liiOS tolSTS, was indicted for cni-
bczzlemont> and the state introduced in f vidence tlie Ketllcment shoct.
which was made at the coinnu'iiceincnt of the dcfendnnt's last term nf
oftice, witli his certificate tliereon lliat it was a tnu> slateuu-iit of ca-sfi
then in his. hands as treasurer. Wliereuiion dt-fendailt sought to sfiow
that the shortage coniphuned of in tlio indictment occurred during lii-
prior terms of oflice, wmI more than three years htloiT the indi( tnuri!
wa-s foimd, and that, tl»ert>fore, the jirosecntion was barred by tlie Ktal-
Bte of Umitations, which testimony the court refased. Held, ihi\\ Un
defendant should have been allowed to show, if he could. Ibiit mo (IcImI-
cation took place within throe years next before the tindim; of the i'
dictment.

2. Same. — A defendant in a crinn'nal case may prove the actual factji in

dispute, notwithstanding anj' admissions or confessions ho may have
made to the contrary. Conclusive i)resumptions and estojipels have no
place in the cruuiual law cstablishuig the body of the (.'riijiu charijeil.

Appeal

Tliibhat

Smith .

KoTHRO

county fo
ing in Ja
case Avas
embezzlin
his liands
The sta
was made
of office,
was a tru(
The accoi
the office :
upon its fi
thereby si
up this sh
scttlemeni
the last si:
Upon this
term of o

S4n.soo.

We do

the trial tl
wli(>n he V
to showth
more thai
tiiat, there
limitations
d('tif(> to t
1><7(5. and
small amn
thai tiieci
iiaiids in
deposit an
catcs of d(
use of hy
the Jindini

STATE r. HUTCHINSON.

Appeal from Webster District Court.

Tliibhat'd, Clarh S Daidey, for appellant.

Smith McPherson, attorney -general, for the state.

EoTiiRocK, J. I. The defendant was treasurer of Webster
county for ten years, commencing in January, 18GS, and end-
ing in January, 1878. In April, 1S7S, the indictment in this
case was returned against him, in which he was charged with
embezzling about $48,000 of the public money which came into
his Iiands as such treasurer,

Tlie state introduced in evidence the settlement sheet which
was made at the commencement of the defendant's last term
of oilico, in January, 1ST<>, ^vith liis certificate thereon that it
was a true statement of casli tlien in his hands as treasurer.
The account or settlement sheet embraced the transactions of
the office for the six months next preceding the settlement, and
upon its face it appenred to be correct, and the defendant was
thereby shown not to be in arrears. The state then followed
up this showing by an exhibit of the subsequent semi-annual
settlement sheets, and then from the books of the office for
the last six months of the last term, ending in January, 1878.
Upon this l>asis it appenred that, at some time during the last
term of office, the defendant became short in his cash some
$4r.,800.

We do not understand that the defendant contended upon
the triiil that he was not short in his casli and largely in arrears
wlicn he went out of office in .January, 1S78. I'ut he sought
to show that this shortage occurred dni-ing his prior terms, and
more than tlnx'e years before the indictment was found, and
that, tlierel'ore. the prostvution was barred by the statute of
limitations. To make this proof the det'endanl olVered evi-
dence to the effiH't that, at the setth-tuent made in January,
1><T'>, and at those previously and subsecpiently made, but a
sm;ill amount of cash was prodiiet^d at each scttlenicnt. and
thai the cash ktlaiu'e, which should ha\e been actually in his*
liaii(l> in money, was largely m«de up of bank certificates of
deposit and other vou« hers, lie offered to sliow that certifi-
cates of (lc|H)sit and other evidfiices ol' debt had been made
iis(( of l»v him in liis setllenu-ni: more than three years prior to
tlic iindiug of the iutUetuient. lie further oll'ered to prove

164

AMERICAN CRimNAL REPORTS.

that he had no funds in the hauls vjhich issued the certifeat's.
In other words, he offered to show and prove tluit he inudo
his settlement Arith the hoard of supervisors by the use of
worthless and spurious certificates of deposit instead of cusJi.
and that whatever money was converted to his own use, was
so converted more than three years before the indictment was
presented. This evidence was objected to by the state and tlio
objection was sustained. This rulinj^, as we infer from the ob-
jections made to the evidence, was based upon the idea that tlK>
defendant was criminsilly bound by the settlement sheets, itiid
by his cei'tificates that he had the cash actually on hand at tlic^
time the several settlements were made.

In Boone Co. v. Jones., 54 Iowa, 099, it was held that a county
treasurer and tlie sureties on his bonds Avere bound by a settle-
ment and accounting made according to laAV, and where at
such settlement, for aught that appeared, the cash which should
have been on hand Avas produced by the treasurer, such settle-
ment could not be impeached by showing that the defalcation
complained of previously existed. In other words, it was held
that Avhere a treasurer produces the funds Avhich should be in
his hands at a settlement, the settlement is conclusive, and (he
treasurer and his sureties cannot be permitted to proA'c that tlio
treasurer deceived the board of supervisors in such settlenuMit
by producing money not belonging to the office nor to tlir
treasurer. That Avas a civil action to recover upon the bond
of the treasurer, for an alleged defalcation. In Wehster Co. r.
Ilutchinson, 9 N. AV. Fvep., 901, and 12 N. W. Rep., 534, whioli
Avas a civil action to recoA'er on the defendant's bond for tlic
same alleged defalcation for Avhich the defendant Avas indicted
in this case, it appeared tliat the settlement Avas made Avith tli(>
treasurer Avithout producing the money Avhich shoidd have bcni
on hand, but by producing certificates of deposits from baid<s,
and other evidences of indebtedness. It was held that tliis
constituted no settlement, because the laAV required tlie cash lo
be produced. It was further held that as the board of sujmt-
visors Avere not deceived by the production of the money, it
was allowable for the sureties upon the defendant's bond to
shoAV that the defalcation existed, in fact, prior to the settle-
ment in question. It Avas also held in that case that the <le-
fendant was concluded by the settlement, upon the very obvious

STATE V. HUTCHINSON.

165

ground that he could not be allowed to take advantage of his
own Avrong and fraud to the injury of the public, even though
the board of supervisors knew that the settlement was not
made in compliance with the law.

Wc are now required to determine whether or not the above
rules, which are applicable to civil liability upon a treasurer's
bond, should be held to obtain in a criminal prosecution for
embezzlement. "We are clearly of the opinion that they
should not. If the claim of the defendant be true, he was
guilty of embezzlement as early as 1872. lie offered to prove
that from that time forward he made his settlements, not with
money, but largely Avith certilicatcs of deposit, and Avith other
])roniiscs to pay. This was wholly unauthorized by law. Even
if the defendant had actually deposited money with the banks^
and the certilicatcs rei)resented the deposits, such a disposition
of the funds in his hands was unauthorized. Lowvy v. Polh
tb., 51 Iowa, 50. But when the defendant offered to prove
that he had no deposits in the banks, he, in effect, offered to
show that he had converted the money Avhich had been in his
hands to his own use. At least this would have been tlie log-
ical inference, in the absence of proof, that he had lost it, or
that it had been stolen, or the like. The fact that at each set-
tlement he failed to produce the money, was a sullicient failure
to account for the funds in his hands to constitute the crime of
embezzlement, in the absence of exculpatory proof.

We think the defendant should have been allowed to show,
if he could, that no defalcation took place within three years
next before the finding of the indictment. AVe know of no
rule that estops a defendant in a criminal prosecution from
])roving the actual fact in dispute, notwithstanding any admis-
sion or 'Confession ho may have made to the contrary. Con-
clusive ,)resumptions and estoppels have no place in the
criminal law in establishing the body of the crime charged.
The statement and certificate showing that the cash was actu-
ally on hand and produced at the settlement in 1870, amounted
to no more than an implied confession that the defalcation
took place after that time, and to deny to the defendant the
right to dispute the confession thus made is, in our opinion,
fimdamentally wrong.

2. There are other questions in this case which are argued

106

AMERICAN CRIMINAL REPORTS.

by counsel. Tlioy pertain to the manner of obtaining the jury
and the impaneling the jury in the alleged absence of any
counsel for the defendant, and other objections which we need
not discuss, inasmuch as the alleged errors will not likely arise
ui)on a re-trial. In view of a new trial, however, it may not ho
improper to say that, in our opinion, the demand made by tli;;
county auditor (if a demand was necessary) for the payment
of the alleged shortage was a sufficient demand, in view of
the authority given to him by the board of supervisors.

For the error first above discussed the judgment of the dis-
trict court will be reversed. .

NoTK. — A sentence of the court ought not to be modifled by any arrange-
ment between defendant or his counsel and the court, looking to hi.s
abatidonnicnt of the right to move for a new trial, and if so modified the
defendant will not be estopped from his right to move therefor during the
time allowed bylaw. Smith v. The State, 64 Ga., 439.

Tliere is no legal presumption, for the purpose of a criminal prosecu-
tion, tliat bank-notes, checks, bills of exchange, and other securities for
mono}', are worth the sums wluch they represent, or any sum. Peojyle v.
Hall, 48 IMich., 491.

State of Louisiana v. Exnicios.

(33 La. Ann., 233.)

Embezzlement: Officer or " other person" — Comititutional law.

Constitutional law— Title of acts.— A statute is not unconstitu-
tional as a whole, under the constitution of 1808, because all its objects
are not expressed in its title. Those parts of the law which are indi-
cated by the title must stand, while only those not so indicated will
fall, uidess they are so interwoven with, and dependent upon, eacli
other that they cannot be sejjarated.

Embezzlement of any officeu or "other person."— Act No. 43 of
1871, providing for the punishment of "any officer or other person,
charged with the collection, receipt, safe-keeping, etc., of public money,
who shidl convert it to hia own use," etc. , clearly covers the case of a
clerk of the administrator of finance of the city of New Orleans, guilty
of such an act.

Appeal from the Criminal District Court, Parish of Orleans.
Luzenberg, J.

STATE OF LOUISIANA r. EXNICIOS,

101

William L. Thompson, for defendant and appellant.
J. C. Fjjan, attoiney-general, for the state, ai)pellee.

The opinion of the court was delivered by

Fknnku, J. The only errors assigned in this case appear
from a motion in arrest of judgment, made in behalf of do-
fondant, on the following grounds, viz, :

F'lrd. That act No. 42 of 1871 is unconstitutional because
said act does not contain in its title the object of said act, nor
docs its title mc>ntion or attach any responsibility to clerks
wliose duties are ministei'ial.

Second. That defendant was not an officer known to the
law, and charged by law with the collection of taxes.

Third. That defendant was only a clerk employed by the
administrator of finance of the city of Xew Oi-leans, and that
act -12 a])plies only to officers charged by law with the collec-
tion of taxes, and not tlieir clerks or subordinate agents.

Fourth. That the administrator of iinance was the sole
lawful agent of the city to collect and receive its revenues,
and could not delegate its power to others, and thus cause
res])onsibility under the law to attach to them.

Act No. 42 of 1871 was ])asse(l under the regime of the con-
stitution of 18G8, which, wliile requii'ing that "every law shall
express its object or objects in its title," contains no inhibition
against the inclusion of several objects in the same law, pro-
vided they bo expressed in the title.

The title of this act, under the broadest division, contains at
least twelve distinctly expressed and ditferent objects. The
act itself contains no less than one hundred and three sections,
which have reference, some to one, some to another of the
objects expressed in the title.

It is settled, beyond dispute, that in the application of this
constitutional i)i'()vision, those parts of the law which are indi-
cated by the title must stand, while only those not so indicated
will fall, unless they are so interwoven with, and dependent
upon, each other, that they cannot be separated. Cooley,
Const. Lim. (4th ed.), p. 181.

It may well be doubted whether a ])leading, based on the
broad charge that such an act as this, containing a multiplicity
of objects in its title and of provisions in its body, is unconsti-

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168

AMERICAN CRIMINAL REPORTS.

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tutional, without specification of any particular provision in-
tended to be assailed, could form a proper basis for any judicial
inquiry or determination. It is manifest, at a glance, that tlio
allegation is not true as pleaded, because the act is not uncon-
stitutional, though some particular provision thereof may bo.

"Waiving this objection, however, in this case, wo find from
the brief of counsel that his objections to the constitutionality
of the act, as well as we can understand them, are direct<.nl
against section 90 of the act, and are twofold, viz.:

First. That the object expressed in the title, viz.: "To
punish certain crimes and misdemeanors," does not express tho
persons or class of persons who are to be punished therefor,
and is, therefore, insufficient to cover the designation of sucli
offenders in the body of the act.

The objection can hardly be seriously considered. It is ob-
vious that " crimes and misdemeanors " can only be committed
by persons, and that ])ersons only can bo punished for the com-
mission thei'eof. Certain persons, or persons occupying certain
relations, can alone commit certain crimes. Only persons in-
trusted with the money of another can commit the crime of
embezzlement.

The crime defined in section 00 qf the act imder considera-
tion is the embezzlement of public funds, and it can only bo
committed by "officers or other persons" charged in some
manner with the collection or custody of such funds In de-
fining and punishing the crime, it was necessary to designate
how and by whom the crime might bo committed, and such
designation is aptly covered by the title.

Second. It is objected that in a certain part of the section
provision is made as to what facts shall constitute ^^ prima facie
evidence " of the crime ; and that such provision is not covered
by the title,

There is no occasion to pass upon this constitutional question
in the present case. Even if this provision as to evidence were
held to bo unconstitutional, it would not affect the validity of
the remaining portions of tho section. Nothing in the record
informs us that this rule of evidence was applied in tho instant
case. Had it appeared that the judge had charged the jury that
the facts stated in the act cor\^i\ixxiQ{\. prima Jfacie evidence of
guilt, and had a bill of exception been properly taken to such

STATE f. COSTIN.

1C9

charge, wo might have examined this question ; but no founda-
tion for its examination is laid here.

So much for the objections to the constitutionality of the
law.

The other grounds for arrest of judgment are comprised
in the proposition that, not being a statutory officer, but acting
only as a clerk employed by such an ollicer, he is not covered
by the provisions of the act. The act provides that " if any
ollicer or other person, charged with the collection, receipt, safe-
keeping, etc., of public money, or any part thereof, shall fail to
])ay over the same according to law, or shall convert .o his own
use," etc. .

It is impossible to explain th use of the words "or other
person," not once onh*, but several times, u];on the theory
that the act Avas intended to apply to " oiRocrs " only. The
law-maker unquestionably had in view the self-evident fact
tlii'.t olHcers charged with the collection of taxes could not
perform their functions without necessaril}' delegating some of
their duties to subordinate agents, and it was the intention to
prevent and punish the embezzlement of public funds by such
employees as well as by the officers themselves.

The case of defendant is covered by the letter and clear
meaning of the law.

Tiie judgment appealed from is, therefore, affirmed.

Eehcaring refused.

Note. — When a Bt.atuto provides that "if nuy tavorn-kooiicr or otlier
person Bhall sell" intoxicating liquors on Sunday, he sliall he Kuilty of a
misdomcanor, etc., held, that a " tavcrn-koeiier," withhi the meaning of
the act, is a person whoso business, in part at lea.st, is to sell su ;h litjuors,
and the w/rds " or other i)crsons" must refer to a similar classj of persons,
and includes, therefore, only those engaged in the business of eelllug liquors.
Jeiiscre r. The. State, CO Wis., 577.

State v. Costin.

(89N. C, 511.)

Embezzlement: Muster and servant

One employed to sweep out store, etc. — Where goods come into the
iwssession of a servant, out of the ordinary course of his employment,
but in pursuance of special directions from the master to receive them,

170 AMERICAN CBIMINAL REPORTS.

ajid the servant embezzles the same, he is indictable under the statuto.
Therefore, where one employed by a merchant to sweep out and wait
about the store, but not as clerk, was authorized by the merchant to
take a lot of shoes and sell them during his visit to a neighboring town,
which he did, and converted the money to his own use, held, that ho
was a servant within the meaning of the embezzlement act, and received
the goods by virtue of his employment.

Attorney-General, for the state.
No counsel for the defendant.

Meekimon, J. In this case the defendant is indicted for em-
bezzlement under Eat. Rev., ch. 32, § 136.

On the trial ho prayed the court to give the jury this in-
struction : " That if the defendant was employed only for the
purpose of sweeping- out the store and waiting about the store
of E. G. Gause ife Co., and during such employment lie was
allowed to take the shoes to Point Caswell for the purpose of
selling them at lifty cents per pair, and he sold them at twenty-
five cents per pair, he could not be convicted, because he Avas
not a servaiit in contemplation of the statute at the time of
the sale, and because he sold for a less price than he was author-
ized to do."

The court declined to give the jury such instruction, and the
defendant excepted.

The exce])tion cannot be sustained. In our judgment, the
defendant was a servant within the meaning of the statute,
and what he did constituted the offense of embezzlement
under it.

The manifest purpose of the statute is to protect individuals
and partnerships against frauds upon them in respect to money,
goods and chattels, and the several species of credit mentioned
in it, on the part of their agents, clerks and servants; and cor-
porations in like manner, against their olHcei's, agents, clei'ks
and servants; and other persons and corporations in like man-
ner, when money, goods and cliattels, and such other things,
shall come into their possession, or under their care, by virtue
of such olHco or such other employment. It is intended by it
to sustain, protect and preserve the integrity of an essential
and important confidential relation, that is almost universal in
the business ramifications of life. It is broad and comprehen-
sive in its purpose, and it is scarcely less so in its terms, as

STATE V. COSTIN.

171

we shall see. And it must be construed in this broad view of
the purpose of the legislature in enacting it.

Trust and confidence are raised by the relation specified in
the statute, and a bi*each of this trust and confidence is of the
essence of the offense denounced. In their absence, there can
be no offense. Whenever the oflficer, agent, clerk or servant,
by virtue of such relation, directly or indirectly, in the regu-
lar course of his business, or ^o hac vlee^ a special service is
assigned him and he accepts the same, and money, goods and
chattels, or any of the credits specifi-ed in the statute, shall
come into his possession, or under his care, and ho commits a
fraudulent breach of the trust and confidence so subsisting,
the offense is complete. The language of the statute in respect
to the possession of the money, goods and chattels and credits
named is, " which shall have come into his possession or under
his care hj virtue of such office or employment." The posses-
sion and care are not confined to such as come in the ordinary
course of business, but as well such as come hy virtue of the
relation. The words " hy virtue " are very broad, and serve
well to eft'ectuato the object for which they were employed.
Hence, it has been held, in construing a statute similar to
the one under cor -jidoration, that where the thing embezzled
came into the possession of the servant, out of the ordinary
course of employment, in pursuance of a special direction from
the master to receive it, the act came within the meaning of
the statute. Jiex v. Smithy Euss. & K., 516 ; People v. Dalton,
15 Wend., 581 ; Rex v. Hughes, 1 Moody, 370.

The relation of employer and agent or cleVlc, or master and
servant, does not depend on the length of time it shall con-
tinue, if it is establislied at all ; if for but one occasion or trans-
action, that will be sufficient. There are no words of limitation
in this res[)ect in the statute. Rex v. Hughes, supra; Rex v.
Spencer, Euss. & E., 299; Whart. C. L., § 1905 et seq.; 2 Eussell,
178; 2 Bish. C. L,, § 359 et seq.

In the case before us, it appears that the defendant " had
been in the employment of the firm of E. G. Gauso tfe Co.
about six weeks, and that he was em])loyed for the purpose of
sweeping the store, and waiting ahout the store, but not as clerk.

Now, to xiHiit ahout the store implies that ho who is to so wait
is ready to do and will do such service, and in variety, as his

172

AMERICAN CRIMINAL REPORTS.

employer may command him to do, generally or specially, in
connection with the business of the store. lie is not regularly
a sal(!sman, but very considerable trust must be reposed in him.
He is essential about such a business, and, in many instances,
indispensable. He must come in contact with goods of greater
or less value each day of his service ; especially his duties are
varied. He is to sweep the floor, ma,ke the fires, bring water,
put packages of goods in order, go on errands, deliver pack-
ages of goods to customers, and receive the money for them
when commanded to do so. He is to be in and around the
store, and a man-of-all-work in that connection. lie is not
regularly a salesman, and yet, occasionally, he might do spe-
cial service of that character, if commanded. His place is
one of considerable responsibility, requiring integrity of char-
acter. His employer might necessarily repose a considerable
degree of confidence in him. That he waits about the store, a
place where merchandise is set up in greater or less quantities
to be sold, makes such employment the more important. We
think this not an unreasonable sphere of duties for one who
" waits about the store."

Such employment establishes the relation of master and
servant, in contemplation of tlie statute. It would be uni'cason-
able to suppose that it was not intended to embrace and - 'o-
tect such a business relation. It is a common one, an esscn. d
one, and one of importance. There are small, insignificant
stores, and no great importance attaches to the servants about
them, and there are great ones too ; but the statute embraces
and protects the proprietore of all against the frauds of fuitli-
less servants.

The defendant was the servant of his employers in the sense
of the statute, imd if he got possession of their money by
virtue of this relation to them, then he would be guilty.

We think, also, that apart from the defendant's relation to
his employers, as servant waiting about the store, the same re-
lation was established as to the transaction developed by the
evidence as to the shoes. He agreed with his employers to
take the shoes to Point Caswell, sell them for fifty cents a pair,
and deliver the money he might get for them to his employers.
If he did not accept the service as to the shoes by virtue of
being servant about the store, he was entitled to compensation

STATE V. COSTIN. 173

specially for i5olling them, and the relation of master and serv-
ant as to the shoes was raised in the eye of the law. In any
view of the case, the defendant Avas a servant, as charged in
the indictment. I?e.v v. Iluf/hes, sxipra; 2 Bish. C. L., § 340.

The defendant insists that as he sold the shoes for a less sum
than fifty cents per pair, as he was instructed to do, but sold
them for twenty-five cents per pair, and received the money
for them at that price, he is not guilty of embezzlement.

The defendant agreed to sell the shoes as instructed, get the
money for them and deliver it to his employers. He sold them
for a less price than he was authorized to do, received the
money for them for his employers, and fraudulently disposed
of and applied it to his own use. The money was not his; he
received it for his emploj-ors; it belonged to them, at all events,
until they disowned the sale, and this tiiey did not do.

An agent, clerk or servant cannot thvis throw off his rela-
tion to his employer and evade the statute. It does not lie in
the mouth of the defendant to say that he did not sell the shoes
for his employers, and the money was not theirs. He is es-
topped in this respect. He cannot bo allowed thus to take ad-
vantage of his OAvn wrong and evade the law. Nnlhis commo-
dum capcve potest de hxjur'm sua lyropria is a wholesome
maxim of tljo law, and wo see no substantial reason why it
should not apply in a case like this.

The statute is too comprehensive, too practical and thorough
in its spirit and purpose to allow .so subtle a distinction as that
insisted upon to impair, indeed destroy, in large measure its
purpose and usefulness.

If sucli a shift could be held to save offenders from its
penalties, the statute would become almost a practical nullity
in some of its most important features. Pishonest agents,
clerks and servants would constantly contrive to repudiate —
throw off — their relation to their emplo^'er by a fraudulent
departure from thei r instructions in respect to property in their
possession and control, and thus evade the law. We cannot
think that the leg alature, or the statute in its terras or spirit,
ever contemplated such an interpretation of its meaning. We do
not think it reasonable, and we cannot so construe its meaning.
There is no good reason that we can conceive of why the
statute should receive the construction contended for by the

174

AMERICAN CRIMINAL REPORTS.

defendant. All the considerations that prompted its enactment
lead us to construe it as we have done. 2 Bish., supra, §§ 351,
367; Ex parte IladUxj, 31 Cal., 108.

There is no error, and the judgment must be affirmed, and
it is so ordered. Let this be certified.

Affirmed.

Note. — The doctrine of the common law was that fraiululcnt breach of
trust is not a crime, and that a felonious taking is an essential element in
larceny. When property was stolen, the person who lost it could proceed
against the supposed thief, either " by word of felony," in which case battle
was waged, and the appellee juight, if defeated, be hanged ; or the owner of
the goods, "if he pleases, may bring an action for his goods as lost ; and then
he shall not sue judgment of felony but of trespass only." In describing the
form of an appeal of larceny, Britton siiys that if the appellee '' pleads that
the horse was his ov.'n, and that he took him as his own ; and as his chattel
lost out of his possession, and can prove it, the appeal shall be changed from
felony to the nature of trespass. In this case let it be awarded that tlie
defendant lose his horse forever." It Avas only on a conviction on appeal
that the property was restored, till the 21 Hen. 8, c. 11, gave the owner a
suit of restitution in such cases. It was more advantageous, tlierefore, for
the appellee to sue for trespass than " by words of felony," as, in the latter
case, he might have to do battle. Upon this state of the law the technical
rule was established that there can be no larceny without a trespass. The
reason of the rule practically ceased when the owner, who proceeded against
the thief for the felony, was no longer compelled to risk his life in trial
by combat, but the rule itself remained. As the inconvenient and ab-
surd consequences of the doctrine revealed themselves, statutes were en-
acted from time to time beginning with the 21 Henry 8, c. 7, which made
it a felony in any servant, not being an apprentice or under eighteen years
of age, to embezzle any money or chattel intrusted to him by his master to
be kept for his use. As trade and commerce flourished and extended, new
statutes were enacted designed to punish every fraudulent breach of trust.
As the crime of embezzlement is purely statutory, the statutes numerous,
and their provisions diverse from one another in many respects, the value
of a decision of a foreign state will depend largely upon the similarity of
the statute of that state with the statute of the state where it is quoted as a
precedent. We will doubtless serve the profession Ijest by presenting a few
of the more technical points decided. It may be added that there is no
branch of the cruninal law which is moi'e intricate, and few are more tech-
nical, than that of embezzlement — statutory larceny.

Clerk, servant, agent, etc.— In a trial for embezzlement of money, the
evidence showed tliat the defendant was furnished witli sewing macliinca,
for sale in towns, requiring him to account for them to Ids principal in
money, or in purchase-money notes, payable to his principal; but, by con-
tract, outside of the terms of his agency, he was authorized to sell machines
for live-stock, on condition that he would sell the stock and account to his
principal for the money. Dofeudont tendered his principal horses received

STATE V. COSTIN.

in triV'lo for macliincn, which he refused to accept ; whereupon defendant
sold the horses and retained the money. Held, that the money was not the
property of the principal, and the law of embezzlement did not apply.
Webb V, The State, 8 Texas Ct. App., 310.

The prisoner had worked for the prosecutor, sometimes as a regular laborer
and sometimes as a roundsman ; but, at the time in question, not being at
all in the prosecutor's service, he was sent by the prosecutor to get a check
cashed at a banker's, for which he was to be paid sixpence. He got the cash
and mixde off. Held, no embezzlement, as the prisoner was not a servant
of the prosecutor within the meaning of Stat. 7 & 8 Geo, 4, c. 29, s. 47.
Rex V. Freeman, 5 Car. & P., 534; Rex v. Ncttleton, 1 Moody, 239.

The servant or employee must have been authorized to receive the prop-
erty, or the nature, scope and extent of the employment must have been
sucli as to wan-ant the receipt of the property embezzled. Where a party
waa authorized to convey prisoners to the penitentiary, and received certain
BUiur. of money belonging to the prisoners, which he embezzled, it was held
that the nature of his employment was not such as to embrace the receipt
of such money. The State '^. Johnson, 49 Iowa, 139.

The servant of a firm is the servant of the individual partners, and, if he
embezzle the private property of one, may be charged as the servant of that
indivit.ual. Rex v. Leach, 3 Stark., 70; Rex v. White, 8 Car. & P., 742.

The servant of a copartnerehip fraudulently appropriated money which
he had received from one member of the firm under the direction to carry
it to another member ; held, not liable for embezzlement. Coin. v. Berry,
99 Mass., 428.

Ownership, partnership jn'operty — Variance. — Where the property was
described as the proi'crty of A., and the proof showed that it was the prop-
erty of A. and B. as copartners, but in the possession of A. as a copartner, it
was held that the possession of the propertj' (goods and chattels) by one of
the partners does not authorize the goods to be charged as the goods of the
individual partner who thus possesses them, because he does not stand upon
the footing of a bailee. That he could not maintain an action in his o\rn
name for a trespass comm itted upon or injury done to the gootls and chattelsi
as bailee. " His possession is the jxissession of the whole of the partners,
and the doctrine of special propei-ty cannot arise," Hogg v. Tlie State, 3
Blackf. (Ind.), 326.

It is sufficient if one only of several joint owners is named in the indict-
ment under the Indiana statute, but when the stolen property is alleged to
belong to two pcreons, proof that it is the Beparato property of one of them
will not support the indictment. Whider v. The State, 25 Ind,, 234,

Describing the propei'ty as the property of A,, B, and C, proof that defend-
ant stole some of the goods of each o£ them respectively, in which they had
no joint interest, does not correspond witli the allogatiofn. The State v.
Ryan and Jones, 4 McCord (S. C), 16.

An indictment alleging the goods to be the projicrty of A., not sustained by
proof that they are owned jointly by A., B. and C. State v. Owens, 10 Rich.
(S. C), 109; State V. McCoy, 14 N. H., 304.

And when property is laid in the name of the firm without the names of
all the partners or joint owners, the inrlictment will be bad, in the absence

176

AMERICAN CRIMINAL REPORTS.

of a statute authorizing tlic partners to sue in their firm name. People v.
Bogart, 36 Cal., 245; Abernathy v. Latimore, 19 Ohio, 280; Bernard v. Pur-
vin, 1 Morris (Iowa), 309,

Interest in the property embezzled. — If the defendant has an interest in
the property of which he is accused of embezzling, as, for example, when
the party was to receive five per cent, of all tho pew rents, no matter who
collected them, this is not embezzlement, because to constitute embezzle-
ment the property must belong to another than the defendant. State v,
Kent, 22 Minn., 41 ; Reg. v. Bren, Cox, C. C, 898.

But we think the better rule is as stated by the supreme court of Missouri
in a very recent case (State v. Shadd, 80 Mo., 358). In that case it is held
that one Avho auctions off "pools "upon a horse race, and receives the
money of the purchaser, is the agent of such purchaser, and if he fraudu-
lently converts such money to his own use he is guilty of embezzlement —
and that this is so although the money was placed in his hands for an im-
moral purpose. It was alao held in that case that the per cent, which the
"pool" seller was to receive migJit be deducted from the amount deposited
with him. Campbell v. The State, 35 Ohio St., 70. See, also, Reg. v. Bailey,
12 Cox, C. C, 50.

The member of a co-operative society may bo guilty of larceny in steal-
ing money from the person in charge of the store, who has to account to
the treasurer for all moneys received by him, and the person there in charge
has sufficiont pro])erty in the money stolen to sustain the allegation of ovni-
ership. Reg. v. Burgess, 9 Cox, C. C, 302; Reg. v. Webster, 9 Cox, C. C, 13.

Allegation of value. — " Being then and there tho bailee of four hundred
thousand dollars, the moneys, goods and chattels," etc., held, bad, as the
court cannot know that by four hundred thousand doUai-s was meant so
much lawful money of tho United States; " for aught we may know, it is
the currency of some other state or nation, and not sufficient in amount to
charge the defendant, under our statutes, with grand or petit larceny."
People V. Cohen, 8 Cal., 42. See, also, Menvin v. The People, 26 Mich., 298;
Smith V. The State, 38 Ind., 159.

On the trial of an indictment which charges the embezzlement of money
only, it is error to admit evidence of the embezzlement of county orders.
Goodhue v. The People, 94 111., 37.

Tim indictment. — An indictment for embezzlement under the statute must
aver that the defendant was a clerk or servant of some person (or an officer
or agent of a corporation), and that the property he is charged with embez-
zling came to his possession or under his care by virtue of such employment.
The indictment alleged that the defendant on, etc., as the agent of W. II.
S., had collected and received certain money for him, the said S., to wit, etc. ;
that said defendant, after having received said money, and which came to
liis possession and under his care by virtue of his employment as .such serv-
ant of said S., and while he was such servant of said S., did feloniously
embezzle, etc. It was proved on the trial that tho defendant, who was a
constable, was employed by S. to collect several small accounts against dif-
ferent individuals. In reversing the case, Beardsley, Ch. J., speaking for
the court, says: But the first count of this indictment charges " that the de-
fendant, as the agent of S., collected and received the money alleged to have

STATE V. COSTIN.

177

been embezzled, and not that it was collected and received as his clerk or
servant. Nor is the averment that the money was received as agent, at all
changed or qualified by the subsequent allegation that it came to the pos-
session of the defendant ' by virtue of his said employment as such servant
of the said S., and wliile ho was such ser\'ant as aforesaid.' This only
amounts to an allegation that the money was received by the defendant as
such servant, as an agent is or may be, and not that ho in fact received it .is
the servant of S."

" Tlie term agent is nomcn general issimum, and although it includes clerks
and servants, who are properly agents of their employers and masters, it is
by no means restricted to such persons. Paley on Agency, by Dunlap, p. 1,
and note." The People v. Allen, 5 Dcnio, 76, cited. Kiba v. Tlic People, 81
m., 599. Sec, also, Bish. Cr. Law, sees. 341, 341a.

An indictment which avers that the defendant " was intrusted by J. S. with
certain property and to deliver the same to sa'.d S. on demand," and after-
wards " refused to deliver the said prop(>rty to said S., and feloniously did
embezzle and fraudulently convert to his own use, the same then and there
being demanded of him by said S.," etc., is fatally defective by reason of
omitting to state the purpose for which the defendant was intrusted with
the property, and for the further reason that it did not name any property,
either that belonging to S. or any other jiorson, which was then and there
feloniously converted and embezzled. Com. v. Smart, 6 Gray, 15, citeil.
Kibs V. The People, 81 111., 599.

Tlie indictment must set out the acts of embezzlement. The defendant's
fiduciary character, which is the distinguishing feature l)etween embezzle-
ment .and larceny, must l)e specirically averred. Klbs v. The People, 81 111.,
ROO; The State v. Johnson, 49 Iowa, 141.

Some general points. — The owner must be produced, to show the taking
to have been without his consent, and the evidence of a third person wUl
not suflSce. State v. Morey, 2 Wis. , 494.

Construction of tlie words in the Iowa statute " or if any other person "'
intrusted with such property, etc. The State v. Stoller, 38 Iowa, 321.

See full discussion a.s to the alh>gations necessary to charge embezzlement
by officers. State v. Brandt, 41 Iowa, 007.

Refusal to pay over funds collected is not sufficient, even under a statute
which makes it prima facie evidence of embezzlement for an officer not to
pay over funds collected. United States v. Forsythe, 6 McLean, 584; Rex
V. Smith, Russ. & R., 267; Batehedor r. Tenny, 27 Vt., 378.

A servant who receives from his master goods or money to use for a spe-
cific purpose, lias the custody of them, but the possession remains in the
master, and a fraudulent and felonious appropriation of them would be lar-
ceny. CommonipeaUh v. Berry, 99 Mass., 428. See, also, Kibs v. The People,
81 111., 599.

Money is "property," within the meaning of a statute which enacts
that if any person shall feloniously steal the property of another, " in any
other state or county, and shall bring the same into this state," he shall be
guilty of larceny. People v, Williams, 24 Mich., 156.

Bank-notes are not " goods or chattels" within the meaning of a statut*
which provides that " if any person shall receive or buy any goods or chat-
V0L.IV — 18

178

AMERICAN CRIMINAL REPORTS.

tela tliat shall be stolen or taken by robbery," etc. Tlte State v. Calvin, 3
Zabr. (N. J.), 207.

Bank-bills cannot be regarded as money within the moaning of a statute
which piovides that if any person shall steal " any money or other personal
goods or chattels," etc. Johnson v. '^le State, 11 Ohio St., 834.

Hess v. State.

(45 N. J., 445.)

Evidence: Quarantine.

Sale of cattle ttnder (jCARAimirE — Belief that quaranttne had been
UEMOVKD may BE SHOWN. — On an indictment for selling cattle, knowing
them to be under quarantine, evidence was given on the trial of facts
tending to create a belief in the mind of defendant that the quarantine
had been removed when the sale was made. It was held error in the
court to refuse, on rcfiucst, to charge for an acquittal if the jury found
that tlie defendant did so believe on those facts.

On error to the Essex Quarter Sessions. Argued before
Beaslcy, Chief Justice, and Justices Depue, Van Syckel and
Knapp.

Charles Bried, for the plaintiff in error.
Oscar Keen, for the state.

The opinion of the court was delivered by

Knapp, J. By the first section of a supplement approved
March 17, 1882, to the act establishing a state board of health,
passed March 9, 1877, it is enacted that if any person shall
knowingly buy or sell any animal that is in herd held in quaran-
tine, or that has been e.xiK)sed to a contagious disease, ho shall
be subject to the penalties contained in section 8 of the supple-
ment approved March 1% 1880. Section 8 of the act referred
to enacts that if any person or persoiis shall knowingly either
buy or sell, or cause to be bought or sold, any animal affected
with the pleuro-pneumonia or other contagious or infectious
disease, such person shall be deemed guilty of a misdemeanor,
and, upon conviction thereof, shall be punished by a fine not
exceeding $200, or imprisonment not exceeding one year, or
both, in the discretion of court. Section 2 of the last named

act auth(
of any c(
of the ex
the suspe^
and take
necessary
ants to ai

The de
ingly selli
an tine by
the legisli

It was \

of the boa

cers, had i

them quai

herd was i

1882. In

the cows !

quarantine

the trial I

verbally t

were, as 1

fore the

of criraini

by a defc

had been

this tcstiii

tion of de

of notice

ban of tl

adopted a

the (juarai

defendant

was to ex J

to exorcist

was made

present or

and then,

he was tol

he made

HESS V. STATE.

179

act authorized tho state board of health, upon the breaking out
of .iny contagious or infectious disease, or upon the suspicion
of tho existence of such disease in any locality, to proceed to
the suspected place and to quarantine said animal or animals,
and take such precautionary measures as sliould bo deemed
necessary. The act also authorized the appointment of assist-
ants to aid and supervise in tho duties of inspection.

The defendant was mdicted, tried and convicted for know-
ingly selling a cow out of a herd then and there held in quar-
antine by said board under the authority conferred upon it by
the legislature referred to.

It was proved on the trial of the indictment that the secretary
of the board, together with one Dr. Hawk, one of its medical offi-
cers, had in June, 1882, examined defendant's cattle and ordered
them quai'antined, giving notice thereof to the defendant. The
herd was attended by Dr. Hawk through the summer and fall of
1882. In September of that year, the defendant sold one of
the cows so ])laccd under quarantine, no formal act raising the
quarantine having then been promulgated by the board. On
the trial Dr. Hawk testified that he informed the defendant
verbally that his cattle were no longer sick, and that they
were, as he expressed himself, " then all right." This was be-
fore the date of the alleged sale. A conviction of this form
of criminality could be had only upon evidence showing a sale
by a defendant who know when he made it that interdict
had been put upon such sale and was then continuing; and
this testimony of Dr. Hawk became important upon the ques-
tion of defendant's knowledge. The statute provided no form
of notice to be given to parties who were placed under this
ban of tho removal of the restriction. If the board had
adopted any settled method of notifying cattle-owners when
the (juavantine was removed, it was not made known to this
defendant, nor was he informed, so far as appears, of wh.at ho
was to expect as assurance of his release from the prohibition
to exercise full ov/nership and control over his property. He
was made to understand that because of sickness in his stock,
present or anticipated, he must not put them upon the market,
and then, by one of the officers who officiated in this business,
he was told that his cattle were no longer sick, and after that
he made the sale for which the grand jury presented him.

180

AMERICAN CRIMINAL REPORTS.

Kow, under these facts of the case, the court was asked to in-
struct the jury that if, from what Dr. Hawk said to the de-
fendant, the jury should find that the defendant believed the
quarantine had then been raised, the} must acquit him. This
instruction the judge declined to give to the jury, holding,
virtually, that his acquittal must depend upon the power of
Dr. Hawk to remove the quarantine, and the fact of its re-
moval by him. This charge, I think, should have been given
as requested by the defendant. Guilty knowledge of the de-
fendant in the act of sale Avas an essential element of crim-
inality. The statute makes the existence of the quarantine
and the defendant's scienter facts jointly essential to guilt.
Dr. Hawk may not have had conferred on him the right of
revocation which the board of health possessed, or, having it,
may not, in fact, have exercised such right, and yet his posi-
tion was such that declarations of a character kindred to those
which he admits to have made to defendant, might have led
the defendant to the honest belief that he was no longer held
under the restrictions which had been upon him three months
prior by the officers of the board of health; and if he did so
believe, and under that belief n^ade the sale, it cannot be said
that he, within the meaning of the act, knowingly sold an ani-
mal from his herd then held in quarantine. As a gcnciii'.
rule, intent and knowledge is of the very essence of crime, and
wherever a statute makes a guilty knowledge part of the
definition of an offense, knowledge is a material fact to bo
averred and proved. Rex v. Juhes, 8 T. K., 536. And the
burden of prof^f, which, in such case, does not shift, is cast
upon the state. 1 Lead. Cr. Cas., 553.

The sale of cattle is in itself an innocent, lawful act. The
statutory offense is selling in violation of a known interdict.
When the case shows that a defendant, on fair and just
grounds, believes the legal imj)ediment to be out of the way,
guilty knowledge is disproved, and a defense is made.

Upon the testimony referred to a jury would have been jus-
tified in finding that there was reasonable ground upon whicli
the defendant could have rested an honest belief that the quar-
antine had been removed, and that thereby such belief had
been created in his mind under which he acted ; consequently,
that the sale by the defendant was outside of the statutory

STATE OF LOUISIANA v. MULLEN.

181

misdemeanor. The jury should have beea permittecl to pass
upon the question.

The trial judge did charge the jury pointedly upon the ne-
cessity of finding guilty knowledge as a requisite to conviction ;
but he did not permit the jury to give the proper or, indeed,
any, effect to an honest, well-founded belief of the non-exist-
ence of a fact, the conscious existence of which avjis of the
very essence of guilt.

Other errors have been assigned upon this recoi'd, but their
consideration is deemed unnecessary, inasmuch as we think the
roquestcd charge should have been given, and withliolding it
was error such as must have prejudiced the defendant in his
trial upon the merits. For that cause the judgment must be
reversed and a venire de novo awarded.

State of Louisiana v. Mullen, i

(83 La. Ann., 159.)

Evidence : Testimony of convict.

CtoNViCT CANNOT BE swouN IN A CAUSE.— The (listi-ict court having ad-
mitted the testimony of a convicted felon, notwithstanding the defend-
ant's objection, the verdict of the jury must be set aside and a new trial
granted, although the objectionable witness testified ho knew nothing
about the case.

Appeal from the Second Judicial District Court, Parish of
Bossier. Drew, J.

/. A. W. Lowru^ district attorney, and «/. C. Eagan^ attorney-
general, for the state, appellee.

ir. O. McDonald and J. Ilenry Shepherd, for defendant and

appellant.

Tiie opinion of the court was delivered b/

PociiK, J. The defendant, having been convicted of the
crime of rescuing persons committed to prison for capital
crimes, and having been sentenced to imprisonment for two
years in tlie state penitentiary, has taken this appeal, and relies

182

AMERICAN CRIMINAL REPORTS.

for reversal of the judgment on a bill of exceptions taken from
the ruling of the district judge in admitting as a witness on
behalf of the state one Thomas Campbell, a convicted and un-
pardoned felon.

The bill shows that defendant objected to the witness on ac-
count of his alleged incompetency, which was proved by tho
record of the court by which he had been convicted and sen-
tenced, notwithstanding which objection and proof the witness
was sworn and allowed to testify.

The judge assigns in the bill, as reasons to justify his course,
that the accused was not injured by the obnoxious witness,
who stated that he knew nothing of the case, as he was asleep
in the jail at the time that the re3cue was effected.

We are at a loss to conceive how such a circumstance could
justify the court in allowing an incompetent witness to testify
in the case.

We are yet to learn that the nature or character of the tes-
timony which may or may not be given by a pvoffeved witness
can be used as a test of his competency to bo heard in evidence.

Under tho commoi. law, felons are incapacitated from testi-
fying by reason of their infamy, and because of their want of
honor and honesty their oath is entitled to no weight.

As soon as proof is made of the witness' conviction and sen-
tence of an infamous ciime, his mouth is scaled, and ho cannot
be heard, without considering the nature or effect of the tcs
timony which he might give.

In this case, proof having been given of tho conviction and
sentence of Thomas Campbell, objection having been made l)y
the defendant to his being sv orn and heard as a witness, for
reason of his infamy, it was Liie boundon duty of the judge to
exclude his testimony. Under the ruling of tho judge the
accused has not had a fair and impartial trial (IG Ann., 273), and
he is, therefore, entitled to relief.

It is, therefore, ordered, adjudged and decreed that the ver-
dict of the jury be set aside, and the judgment of the lower
court nnnuUed, avoided and reversed. And it is further ordered
that the cause be remanded to the lower court for a now trial
according to law, and to the views herein expressed.

Dii Bos~

BLACKWELL v. THE STATE.

183

Blackwell v. The State.

(67 Ga., 76.)

Evidence : Erroneous assumption of fact by court.

1. COMPELLINa PRISONER TO MAKE PROFERT OF HIMSELF. — In a Criminal

Ctose, the place at which the prisoner's leg was amputated being a ma-
terial point, it was error for the court to require him to make profert of
himself, so that a witness could see him and describe his condition to the
jury. A defendant in a criminal case cannot be required to give evi-
dence against himself, either by acts or words.
3. Error to state that a contested point is conceded.— To state to
the jury in a murder case that it was conceded that the deceased was
killed with a pistol was error, where no such concession was made, and
the weapon used was a material question in the case. That the de-
fendant denies altogether that ho committed the homicide does not
admit its commission in the manner claimed by the state.

Before Judge Pottle.

Elbert Superior Court.

Mc Whorter cfe Mo Whorter, Worley <& Carlton and D. M.
Da Bose, for plaintiff in error.
George F. Pierce, solicitor-general, for the state.

Si'eek, Justice. The plaintiff in error was indicted for the
offense of murder. On arraignment and trial had, the jury
found him guilty, and the sentence of death was pronounced
against him. During the term of the court a motion for a new
trial (subse(|uently amended) was made on various grounds, as
set forth in the record, which was overruled by the court, and
defendant below excepted.

The evidence upon which the defendant was convicted was
wholly and entirely circumstantial.

The third ground of the motion for a new trial was as
follows :

" Because the court erred in ordering and directing the de-
fendant to stand up for the purpose of allowing a witness for
the state then on the stand, to wit, R. E. Adams, to see and
testify where his (defendant's) leg was cut off, and in admitting
the testimony based on said inspection."

The liftli ground of the motion was as follows:

" Because the court instructed and charged the jury that it
is conceded in this case that the woman, McMahan, is desid; it
is conced<'d that site was shot with a pistol, and came to hor

184

AMERICAN CRIMINAL REPORTS.

death by a pistol shot, and the only question for you to deter-
mine is, who did the killing (no such admission or concession
having been made by the defendant or his counsel)?" In refer-
ence to this fifth ground of the motion, the court certifies thus
in explanation: "Tliis ground does not appear in the original
motion which was made at the term soon after the conviction.
There was no word said expreanhj conceding that the death
was caused hj a pistol shot, but the whole defense and argu-
ment went to tlie point that the defendant did not do the hill-
ing. I so undei'stood the counsel. No point was made upon
the mode of her death. When the charge was read to tlio
jury, counsel did not call the attention of the court to that
part of the charge. If I had misconstrued them I would have
gladly recalled the remark, if my attention had been called to
it. I had the impression from the general line of the defense
that such was conceded."

I. In reference to the third ground of the motion, it appears
that E. E. Adams, a witness for the state, w.as being examined,
who, as appears in the record, was testifying as to tracks and
impressions, as they appear to have been made on the ground
at and near the house at Avhich the deceased was slain the
night before. He said : " The track we saw was left foot of
man, and like he was on his knee of other leg ; I saw where
he got on the horse ; there were three places where he had
mired about six inches ; we tracked the horse on out and found
where it had run up against a chestnut limb ; I knew the de-
fendant ; I knew the defendant, Allen Blackwell ; his right leg
is out off ; he has a left foot, but no right foot ; [apron pro-
duced] that is a part of an apron such as shoenu^ker3 gener-
ally wear [the apron produced was a piece of old, striped
cloth, about one-third or one-half yard long, with a string at
upper end long enough to go around a man's neck]; shoe-
makers generally wear aprons from material of that sort ; the
death occurred in Elbert county. Question (by the court):
Iloio muoh of his leg has the prisoner had cut offf Answer: I
don't know, sir; I just know he is one-legged; / canH «<?<?."
[Here, by order of the court, the prisoner stood up and showed
his leg, and then witness answered :J "■ Ilia leg is cut off bo-
low vhe knee."

The testimony thua quoted makes it clear that a portion of

BLACKWELL v. THE STATE.

185

this testimony, thus allowed to be given by the witness against
the prisoner, was in consequence of the order and command of
the court in directing the prisoner " to stand up " before the
jury that the witness might be enabled, from inspection, to tes-
tify as to the character and extent of the amputation of pris-
oner's right leg. Was this evidence admissible, and did the
court have authority to compel the prisoner to make a jprofert
of his person before a Avitncss and the jury in order to supply
what the court must have deemed testimony material to the
issue on trial?

Let it be borne in mind tliat a most material and important
part of the testimony against the prisoner was the character
of the track and signs nuide the niglit of tlie murder by the
one who, in the dark, approached tiio house Avhere deceased
was and fired the fatal shot that caused her deatli. The track
and signs indicated the assassin had but one leg, but the char-
acter of the other print on the ground depended materially
upon the character of the amputation of the other limb, and it
no doubt was to establish the correspondence between the
amputated limb of prisoner and the signs on the ground, as
testified to by the witness, that influenced the court to order
prisoner to make profert of his limb to the Avitness testifying
and necessarily to the jury.

In the case of Day v. The State, 03 Ga., GG9, this court hold :
"Evidence M«^ a witness forcibltj \A'Acci\. defon hint's foot in
certain tracks near tlie scene of tlie burglary, and tluit they
were of the same size, is not admissible. A defendant cannot
bo compelled to criminate himself by acts or words." The
court say: "By the constitution of this state no pei'son shall
be compelled to give testimony tending in any manner to
criminate himself; nor can one by force compel another against
his consent to put his foot in a shoe-track for the purpose of
using it as evidence against him on the criminal side of the
court."

In the case of State v. Jacobs, 5 N". C. Rep., 259, the court
says: " A judge has not the right to compel a defendant in a
criminal prosecution to exhibit himself to the inspection of the
jury for the purpose of enabling t/iem to determine his status
as a free neffro."

So in the case of Stolces v. State, 30 Araer. Rep., 72, the court

180

AMERICAN CRIMINAL REPORTS.

' ■ ■ . ■ ...03

held : " On an accusation of murder, it being claimed that cer-
tain footprints were those of the prisoner, the prosecuting
attorney brought a pan of mud into court and placed it in
front of the jury, and having proved that the mud in the pan
was about as soft as that where the tracks were found, called
on the prisoner to put his foot in the mud in the pan. On
objection, tlie court instructed the prisoner that it was optional
with him whetlicr he Avould comply. The prisoner refused,
and the court instructed the jury that his refusal was not to be
taken against him. The prisoner being convicted, held, lie wm
entitled to a new triaV See, also, Y-t N. C, G4G ; 21 Am. Rcj).,
493; 33 id., 540.

II. Was there error in stating to the jury in the charge, as
set forth in the fifth ground of the motion, " It is conceded in
this case that the woman, Caroline McMahan, is dciid ; it is
conceded that she was shot with a pistol, and the only question
for you to determine is, who did the lulling?" The only evi-
dence on this subject as appears in the record, as to the imple-
ment used in shooting deceased, was the testimony of the
witness Katie Henry, who was Avith deceased at the time.
They were engaged at the time at night in work on a quilt,

Katie Henry testified: "Aunt Sukey went round to make
up a liglit ; while she was there a pistol or gun shot off, and
Caroline (deceased) fell under the quilt ; I saw the flash of tlus
pistol ; she fell as soon as I heard the report."

Eoebuck testified he was present; she was shot about
or 10 o'clock at night ; she was shot with a pistol or a gun or
a rifle — it shot a ball.

In the absence of all other testimony, and in the absence of
any admission by prisoner or his counsel that tlie killing was
done with a pistol, was there error in the court instructing tlio
jury " that it was a conceded fact deceased was shot with a
pistol?" The court, in his explanatory note to thii ground,
says : " There was no word said expressly conceding that tho
death was caused by a pistol shot, but the whole defense or
argument went to the point defendant did not do the killing.'"
But surely it cannot be insisted that because defendant and his
counsel utterly denied the homicide, they thereby admitted it
was done with " a pistol." The liomicide was, under the evi-
dence, an assassination. The deceased was engaged after supper

BLACKWELL v. THE STATE.

181

in quilting, and the assassin crept near the house and fired
(whether through a door or window does not appear), and de-
ceased fell, shot through the head. 'No face Avas seen, but a
man was seen to run off, getting over tlie fence and running
up a gully. Charging the jury that the concei^.sion had been
made by the prisoner or his counsel, that the killing was done
witli a pistol, pointed, with startling significance, to the pris-
oner {IS the murderer, taken in connection witli the other cir-
cumstances proved. Next morning after the Icilling his house
and trunk are searched, and a pistol is found in his trunk with
one barrel recently discharged, the other barrels not loaded
except one, and aU these rusty except the bai'rel recently dis-
charged.

To tell the jury that defendant admitted deceased was killed
Avitli a pistol, when no one could have known in tlie dark, but
the assassin, the Aveapon used, and then to prove the prisoner
was in possession of a pistol recently fired off in one of its
barrels, and all the other facts that point so significantly to his
guilt, was to leave scarcely a hope for any other A-erdict but the
one rendereil. How much this "admitted concession" stated
by the court nuiy have infUicnccd the verdict Ave cannot tell.
It formed a most important link in the damaging circumstances
that point so strongly to defendant's guilt. AVe cannot have,
nor do avo express, any sympathy for this dai'k assassination.
We Avill not say the verdict rendered Avas not abundantly sus-
tained by the testimony, but we are constrained to rule that
the same Avas not rendered upon a fair and impartial trial
tmder the lata. The errors of law constrain us to order a rehear-
ing. Better that the vindication of outraged justice be postponed
for a season than that a human being, however deeply stained
with crime, be convicted and punished contrary to law.

It is the duty of courts to hold over every citizen, hoAA'ever
humble, Avhen arraigned for crime, tlie broad oigls of the laAv,
and to see to it tliat he has the full measure of its humane pro-
tection, until, on a fair and impartial trial, under its rules, h©
has been duly convicted.

Let the judgment of the court below be reA^ersed on the
ground that the court erred in refusing a noAv trial.

Judgment reversed.

188

AMERICAN CRIMINAL REPORTS.

Swan v. Commonwealth.

(104 Perm. St., 218.)

Evidenck: Other offenses.

1. Other offenses cannot be shown unless connected.— Evidence of
the perpetration by tlie defendant of a crime other than that on trial is
not admissible miless such connection be shown between the two of-
fenses as tends to prove that if the defendant were guilty of the one, lie
was also guilty of the other.

3. Circumstances explanatory op such evidence are admissible.— a.
and B. were jointly indicted for robbing C.'s store. On the same day
and in the same locality, D.'s house was also robbed, to wliich offense A.
liad pleaded guilty on another indictment. The commonwealth, on the
theory that A. and B. were members of an organization banded together
to commit burglary, offered evidence of A.'s complicity in the robbing
of D.'s house to support the indictment against A. and B. There was
some evidence that on the day in question A. and B. were seen together
in that locality. Held, that no such connection was established between
the offenses as warranted the submission to the jury of the evidence of
A.'s complicity in the robbery of D.'s house, so as to affect B.

Before Gordon, Trunkey, Sterrett, Green and Clark, JJ.
Mercur, C. J., and Paxson, J,, absent.

Error to the quarter sessions of Armstrong county.

Indictment of Charles Swan and F. E. Lynch for burglary
and larceny.

David Barclay, for the plaintiff in error.
31. F. Leason, for the defendant in error.

Mr. Justice Clakk delivered the opinion of the court, Octo-
ber 29, 1883.

We are of opinion that there was error in the refusal of the
court to limit the effect of the testimony of Koss Ecynolds,
Esq., and in allowing it to go to the jury to affect Charles
Swan, the plaintiff in error.

Testimony had been received showing the perpetration of
other similar crimes in the vicinity, at and about the same
time Lynch had plead guilty to one of these, the Eeynolds
robbery, and the testimony was admitted "to throw what
light" the jury might "discover from it, of the parties
charged, composing or being a part of an organization, banded
together for the purpose of committing crimes of the kind
charged."

SWAN V. COMMONWEALTH.

It is certainly true that, in a criminal trial, evidence may bo
received of any one of a system of crimes, mutually de-
pendent, but there must be a system established between the
offense on trial, and that introduced, to connect it with the de-
fendant. Ilentcr V. Commonxcealth, 4 I*f orris, 139. To make
one criminal act evidence of another, some connection must ex-
ist between them ; that connection must be traced in the gen-
eral design, purpose or plan of the defendant, or it may bo
shown by such circumstances of identification as necessarily
tends to establish that the person who committed one must
have been guilty of the other. The collateral or extraneous
offense must form a link in the chain of circumstances or proofs
reUed upon for conviction ; as an isolated or disconnected fact
it is of no consequence ; a defendant cannot bo convicted of the
offense charged simply because he is guilty of another offense.

In the case of Goerson v. Commonxoealtli, 3 Out., 388, Mercur,
J., giving the result of all the cases upon the admissibility
of sucli testimony, sa^-s : " Yet, under some circumstances, evi-
dence of another offense by the defendant may be given.
Thus, it may bo to estal)lish identity'; to show the act charged
was intentional and wilful, not accidenttal; to prove motive; to
show guilty knowledge and purpose, and to rebut any inference
of mistake ; in case of death b}'^ poison, to prove the defend-
ant knew the substance administered to be poison ; to show
him to be one of an organization banded together to commit
crimes of the kind charged, and to connect the other offense
with the one charged as part of the same transaction."

The only connection shown between the two offenses was
the fact that they were counnitted in the same town, on the
same day.

Lynch had confessed his guilt as to one of the felonies,
and there was some proof as to his guilt in the other. But
what evidence was this as to Swan, who as yet was presumably
innocent of both?

There was no system established or shown between the two
offenses that could have raised any presumption of Swan's con-
nection with the robbery, charged in the indictment, from the
identification of the articles which Lynch confessed he had
stolen from Reynolds. If these articles had been found, wholly
or in part, in Swan's possession, that would have connected

190

AMERICAN CRIMINAL REPORTS.

him with the Eeynolds robbery, and this, taken in connection
with Lynch's confessed guilt of that crime, v>'ould liave shown
such a confederacy in this character of crime at the time and
place of the offense on trial as Avould perhaps have rendered
the evidence competent ; but it is a rule of criminal evidence
that an extraneous crime cannot be put in evidence against a
defendant without proof in some form that he was concerned
in its commission.

It is said that Lynch and Swan were frequently seen to-
gether, during the day-time of the l-ith of September. Tliis,
as an independent fact, v:as properly for the consideration of
the j'uy, but their association, so far as observed, was for
lawful purposes, and proved no connection between the two
offenses. It was, of course, competent for the commonwealth,
as the defendants were jointly indicted and tried, to introduce
any evidence tending to establish the guilt of either, although
it might incidentally prejudice the other ; but the testimony
so introduced should be expressly limited in its effect. Brandt
V. Commonicectlih, 13 Korris, 290.

There Avas, we think, sufficient evidence in this case, as
against Charles Swan, to justify a submission to the jury,
although it certainly was very slight ; inasmuch, however, as
the record contains no bill of exceptions to the charge of the
com't, that question is not properly before us.

Judgment can only be arrested in criminal cases for causes
appearing upon the face of the record. This is a general rule,
and is well settled ; an exception exists when pardon is pleaded
before sentence.

For the reasons assigned in the former part of this opinion,
the judgment is reversed, and a venire facias de novo awarded.

Note. — It is a well-settled nile that, in the trial of an indictment for a
specific criminal act, evidence tending to prove the commission of other
ofifenses is inadmissible. An exception, however, is made in respect to the
malicious burning of a building or buildings, at a prior time, with a view
to the fraudulent collection of the insurance money. Commonwealth v,
McCarthy, 119 Mass., 354. As pertinent to the subject, attention maybe
called to the case of Barton v. The State, 18 Ohio, 231, where the court held
that, although an indictment may contain counts for horse stealing and the
grand larceny of other property, the offenses being of the same nature, and
differing only in degree, yet offenses separate and distinct in character can-
not be BO joined. It is never admissible to prove that a person has pre-

viously com
the crimina
Jordan v. (
gold and d(
sale upon tl
testimony t
the defenda
and liabiliti
and fraudul
said: "The
collateral isi
.-pal issue in
requires hiii
opiwrtunity
prove tlie it
of one scJioi
ixise." In (
dence of sir
a sliort time
showing tht
In Reg. v. C
ously receiv
goods, not (
of guilty ki

Evidence—

TRODCCI

On a tri
the jury
tion of d
Jurispm
and no t
work of

Appeal
San Franc

Darwin
A. L. L

PEOPLE V. WHEELER,

viously committed a crime of a similar cliaracter to show that he comn/tted
the criminal act for which he is on trial. The principle is also well stat?'* in
Jordan v. Osgood, 100 Mass., 457, an action in which the plaintiffs, b.,ivinR
gold and delivered certain goods to the defendant, sought to rescind the
Bale upon the ground of fraud. At the trial, the presiding judge admitted
testimony to the effect that at or alxnit the time the purchases were made
the defendants falsely and fraudulently represented their standing capital
and liabilities to the plaintiffs, and that they made the »amc and other false
and fraudulent rcpresentationB to others. In reference to this the court
Raid: " The admission of such evidence would introduce a multiplicity of
collateral issues, calculated to withdraw the attention of the jury from the
rpal issue in the case ; and it would operate unjustly to the defendant, as it
requires him to explain his transactions with others, without any notice or
opix)rtunity for preparation. , . . Another act of fraud is admissible to
prove the fraud charged only when there is evidence that the two are parts
of one Bchemo or plan of fraud, committed in pursuance of a common pur-
IKise." In Commonwealth v. Jackson, 133 Mass., 10, it was held that evi-
dence of similar pretenses, maile by the defendant in sales to other persons,
a sliort time prior to the sale in question, is inadmissible for the purpose of
showing the intent with which tho defendant made the sale of the animal,
hi Reg. v. Oddy, 5 Cox, C. C, 310, it wiu* held that, upon a charge of feloni-
ously receiving stolen gomls, testimony as to the possession of other stolen
goods, not connected with the immediate charge, is not admissible in proof
of guilty knowledge, But see Com. v. Corkin, ante, p. 15.

People v. Wueelee.

(CO Cal., 581.)
Evidence: Scientific hooks.

Evidence— Reading from a book on medical jurisprudence not in-
troduced IN evidence or proved to de op standard authority. —
On a trial for murder, the district attorney, in his closing argument to
the jury, read, "as a portion of his argument," and against the objec-
tion of defendant, various sections from a book called ' • Browne's Medical
Jurisprudence of Insanity ; " the book was not introduced in evidence,
and no testimony had been introduced to show that it was a standard
work of recognized authority on the subject of insanity ; held, error.

Appeal from the Superior Court of tho City and County of
San Francisco. Ferral, J.

Darioin dc Dunphy, for appellant.

A. L. Ilavty attorney-general, for respondent.

192

AMERICAN CRIMINAL REPORTS.

MclviN'STRY, J. This cause was submitted for decision June
5, 1882.

Tlie district attorney, in his closing argument to the jury,
said he would read, "as a portion of his arguniont," from a
book called "Browne's ^fedical Jurisprudence of Insanity."
The bill of exceptions proceeds: " No testimony had l)een in-
troduced to show that this was a recognized woric or standard
authority, or that it was a scientiHc work. The defense ob-
jected to said book or any part thereof or to any opinion of
said alleged writer, on the ground that it had not been estab-
lished to bo a scientific work, or a standard or recognized
authority, and that it was incompetent. The court overruled
the objections, and defense then and there duly excepted, and
the district attorney did read from said book various sections
thereof, commenting upon and treating of the subject of in-
sanity, and sustalnimj the prosecntwn^s theory of the case.''''

An expert has sometimes been defined to be a witness who
testiiies to conclusions from facts, while an ordinary witness
testifies only as to facts. Mr. Wharton thinks this definition not
sufficiently exact, since no witness called to testify to facts
rejiroduces them precisely as they exist, more or less of inference
being mingled with almost every detail of ordinary ol)serva-
tion. "The true distinction is this: the non-expert testiiies as
to a, subject-matter readil}^ mastered by the adjudicating tri-
bunal; the expert to conclusions outside of such range. The
non-expert gives the result of a process of reast)ning familiar
to every-day life ; the expert gives the result of a process of
reasoning which can be mastered only by special scientists."
Criminal Evidence, 404. Whatever the exact distinction, it
is well settled that where the object is to ascertain Avhether a
supposed case is to be regarded as indicating insanity, only
experts in insanity are to be called, since only experts arc
competent to describe the differentia of insanity scientific-
ally. Id., 417, cases cited.

But the question in the particular case, " sane or insane," is a
question of fact for the jury. The expert is called to assist the
jury in reaching a just conclusion ; his testimony is necessarily
subject to the supervision of the jury. They must determine,
not only whether the hypothetical case on .vhich his opinion
is based is the case before them as established by credible

PEOPLE r, WHEELER.

193

testimony, but must consider the reasons ho lias given for
his opinions, and by his whole testimony test his credibility
and llio correctness of his judgment. Inasmuch as the cir-
cumstances on which the jury are to determine the weight
to be given the opinion of an expert are more numerous and
complicat(<l than those by reference to which they are to
(locido on the consideration to be accorded to the statements
of a witness with respect to facts, and inferences involved, if
any, Avhicli are within the reach of those possessed of no spe-
cial or scientific acquirements, it follows that it is peculiarly
important that a defendant charged with crime should be
"confronted " by the expert witnesses against him, and that they
should be cross-examined in his presence. But where the
opinions of a writer as to the picsenco or absence of insanitv,
upon facts more or less analogous to those claimed by the
prosecution or defense to be established in the case, are per-
mitted to go to the jury, the writer is not sworn or cross-
examined at all. Such evidence is equalh' objectionable, whether
introduced by the pef)ple or by the defendant. If held admis-
sible, the question of insanity may be tried, not by the testi-
mony, but upon excerpts from works presenting partial views
of variant and perha]>s contradictory theories. In the case
before us, too, there was no evi<lence that the work from which
the district attorney read " various '' sections was a standard
authority in the medical profession, or that the author was an
expert.

Medical books are not admissible as evidence. The contrary
was at one time held in Iowa and Alabama. The Iowa de-
cision {liincman v. Woods, 1 G. Green Eep., 445) was based
upon the idea that inasmuch as the opinions of medical wit-
nesses are formed in part upon the books they may have read,
the books themselves are " better evidence." A reference to
what is said hereafter as to the reasons for rejecting such books
will point out the fallacy on which the conclusion of the loAva
court was based. In Bowman v. Wooih it Avas conceded that the
admission of such books is not in conformity to the prevailing
decisions. The Alabama case {Stoudenmeier v. Williamson, 29
Ala., 558) will bo hereinafter noticed.

Medical witnesses, as observed by Briand, " do not usurp the
functions, but servo to enlighten the conscience of the judge
Vol. IV— 13

194

AMERICAN CRIMINAL REPORTS.

and jury." The practice is to ask the opinion of the expert
upon a h^'potlietical state of facts, but not to permit him to
quote from books of authority in his profession to fortify his
opinion. Against this exclusion of -written authorities medical
men have protested very vehenently. As long ago as the trial
of Spencer Cowper, Doctor Crell remonstrated with the bench
when it was intimated that the practice of reading from books
was improper. In Beclc's Medical Jurisprudence (vol. 2, p. 903)
is a citation from an article in the Edlnhury Medical and Sur-
ffiml Journal, where the editors say: " It appears to us no one
can follow this advice " (not to read from medical treatises in
giving testimony) " Avithout compromising the right and dignity
of his profession as well as the force of his evidence, for it
Avould not be diificult to show that medical evidence is little
else than a reference to authority." But one of the editors of
the Eevision of Beck by Gilman shows (vol. 2, p. 9-']3) that the
effect of the rule is not to deprive parties of medical or scien-
tific evidence, but that Tindal's dictum, in CoUicr v. St'/nj)son,
5 C. & P., 7-i, opened the door Avide enough to satisfy any rea-
sonable man. "You may ask," said tliat judge, ''tlicj Avituoss
Avhether in tlie course of his reading he has found this laid
down; you may ask him his judgment and f/u- (/roif/,.l^: <>/ tf,
Avhich may, in some degree, be founded upon books as part of
his general knowledge."

A similar rule obtains AA'ith respect to a Avitness called to
prove a foreign law; he should state, on his respoiisiliility,
Avhat the foreign law is, and not read fragments of a foreign
code. Cocl's V. Purday, 2 Carr. & K., 209.

But while a Avitness cannot be permitted to read as inde-
pendent proof extracts from books in his department, he iiuay
refresh his memory, Avhen giving the conclusions arrived at in
his specialty, by turning to standard Avorks. 1 Whart. L. Ev.,
438. And as Ave shall see hereafter, it AA'ould seem to have been
held in Wisconsin that a Avitness haA'ing cited scientific authori-
ties they may be put in e\ddence to discredit him.

Quotations from medical books are not admissible as evi-
dence Avhen offered independently, or Avhcn read by witnesses.
It foUoAvs that counsel ought not to be allowed to read such
to the jury; a fortiori Avhen they arc not proved to come
from Avorks of standard authority in the profession. A gen-

PEOPLE t'. WHEELER.

195

eral liistory may be read from, but this is only to refresh the
mcinorv of the com-t as to something it is supposed to know.
^o, iin ler appropriate restrictions, domestic law books are per-
mitted to be read to the jury. The court can always correct
the counsel as to liis law, or the application of it. But the
opinions of medical experts are in their nature farts to be
estublislied by living witnesses. They cannot be proved by
hearsa\', alleged to come from those not pi-esent and not even
sliown to be competent to express scientific opinions. Xor are
they established by the mere statement of counsel.

The full report of The Queen v. Crouch, 1 Cox's Cr. Cases,
9-t, is as follows :

'• The prisoner was indicted for the wilful murder of his wife,
and the defense set up was that of insanit}'.

"Clarkson, for the prisoner, in his address to the jury,
attempted to quote, from a work entitled ' Cooper's Surgery,'
the author's opinions on the subject.

" Alderson, B., thought that ho was not justified in doing so.

"Clarkson — I quote it, my lord, as embodying the senti-
ments of one who has studied the subject, and submit that it is
admissible in the same way as opinions of scientific men on
iiiii!!o;.s appertaining to foreign law may be given in evidence.

"Alderson, B. — I should not allow vou to read a work on
forc'xjii law. Any person who was properly conversant with
it might be examined, but then he adds I^is own personal
knowledge and exi)erienco to the information lie may have
derived from books. We must have the evidence of individuals,
not their written opinions. "We should bo inundated Avitli
books if wo were to hold otherwise.

" Clarkson — I shall prove the book to be one of high au-
thority.

" Alderson, B. — But can that mend the matter? You surely
cannot contend that vou nuiv give the book in evidence, and if
not, what right have you to quote from it in your addrc^ss, and
do that indirectly which you would not be permitted to do in
the ordinary course?

"Clarkson — It was certainly done, my lord, in JVauf/hten's

"Alderson, B. — And that shows still more strongly the
necessity for j, stringent adherence to the rules laid down for

190

i\MERICAN CRIMINAL REPORTS.

our observance. But for the non-interposition of tlie judge in
that case, you -would not prol)ably have thought it necessary
to make this struggle noAV."

Anjtl in Reglna v. Tai/Ior, 13 Cox's Cr. Cases, T7, it was held:
" Cases cited in books on medical jurisprudence are not admis-
sible even to form part of an address to the jury." Counsel
for defense, in addressing the jury, proposed to read from
Taylor's Medical Jurisprudence. Brett, J., said : " Tliis is no
evidence in a court of justice. It is a mere statement by a
medical man of hearsay facts of cases at which he was in all
probability not present."

To the same effect are the American cases, in whicli tlie
question is fully considered and decided. In Slate v. D'Hr'tcn,
7 E. I., 338, the court said : " The book offered to be road
to the jury Avas not admissible as evidence. N^o evidence
in the nature of parol testimony could properly pass to
them, except under the sanction of an oath ; and upon this
ground books of science are excluded, notwithstanding the
opinions of scientific men that they are books of authority and
valuable as treatises. Scientific men are permitted to give
their opinions as exi)crts, because given under oath, but tlie
books which they write containing them are, for want of such
oath, excluded."

The suggestion, that such books may be read " as part of the
argument of counsel," did not receive much consideration
from Chief Justice Shaw, in AsJncorth v. Klttrldgc, 12 Cusli.,
193 {QQ ]\[ass.). That distinguislied judge there said : " Tlio
court are of opinion that it was not competent for counsel
for the plaintiff, against the objection of the other side, to
read medical books to the jury. . . . AVc consider the
law to this effect to be well settled, both upon principle and
authority. "When books are thus offered, ihoj arc, in <ff<'d,
used as evidence, and the substantial objection is that they are
statements wanting tlie sanction of an oath; and the statement
thus ]n'0[)osed is made by one not present and not liable to
cross-examination. If this same autlior Avcro cross-examined
and asked to state the grounds of liis opinion, lie might him-
self alter or modify it, and it would be tested by a comparison
with the opinions of others. Medical Avritcrs, like Avriters in
other departments of science, have their various and conflict-

PEOPLE V. WHEELER.

197

Ing theories, and often sustain and defend them Avitli ingenuity.
But as the whole range of medical literature is not open to
persons of common experience, a passage may bo found in one
book favorable to a particular opinion, Avhen, perhaps, the same
opinion may have been vigorously contested, and, perhaps,
triumphantly overthrown by other medical writers, but autliors
whose works would not be likely to be known to counsel or
client, or to court or jury. Besides, medical science has its
own nomenclature, its technical terms and words of art, and
also common words used in a peculiar manner, distinct from
their received meaning in the general use of the language.
From these and other causes, a person not versed in nu'dical
Uterature, though having a good knowledge of the general use
of the English language, would be in danger, without an in-
terpreter, of misapi)rehcnding the true meaning of the author.
Whereas, a medical witness Avould not only give the facts of
his opinion, and the grounds on which it is formed, under the
sanction of his oath, l)ut would also state and explain it in
language intelligible to men of common experience. If it be
said that lU) books should be read except books of good and
cstal)lislied authority, tlie dilficulty at once arises as to tho
question, wliat constitutes 'good authority;' more especially
whether it is a (piestion of competency, to be decided by tho
court, whether the particular book shall bo received or re-
jected; or a question of weight of testimony, so that any l)ook
may be read, leaving its weight, force and effect to the jury.
Either of these altcM-natives would be atteiuled with obvious,
if not insuperable, objections."

And in Vdnimonirinlth r. W/'/son, indicted for murder, 1
(tray, iVAH, the learned chief justice also said: ''Opinions on
the subject of insanity cannot be laid before the jury except
uiider the oath of persons skilled in such matters. "Whether
stated in the language of tho court or of the counsel in a former
case, or cited from the works of legal or medical writers, they
ai'c still statements of fact and must be proved on oath."

These views are reafllrmed in Washhwnv. CHddllnj, 8 Gray,
431, and in Comnwnwealth v. Ih'oioi, 121 ]\fass., 81. So, also,
it was held in CoDunonwrnlth r. Sfitrfh'anf, 117 ^Mass., 130, that
ail expert should not be allowed to read extracts from a work
on medical jurisprudence.

198

AMERICAN CRIMINAL REPORTS.

J)ida are to be found in the reports of the courts of several of
the states which, disconnected from the context, would seem to
support the i)roposition that counsel may be permitted to read
from medical works of established credit intlie profession "as
part of his argument." But in one only of the cases, so far
as we have been able to find, was it decided that this practice
was proper, such decision being necessary to the conclusion
reached by the court.

In Yoe V. People^ 49 111., 412, it was said that where the attor-
ney for the people, against the objection of the prisoner, read
copious extracts from medical works, the court (without s|)oi'ial
recpiest on the part of the prisoner) should have instructed the
jury that such books are not evidence, but theories simply of
medical men. Even if we should accept this as law, the judg-
ment in the present case must bo reversed, since the court l)e-
low did not so instruct the jury. In Yoe v. The l\'o2ilc, the
reading of such books by the attorney for the })eople 'in tlio
absence of the instruction mentioned) was held to bo error
and tlie judgment was reversed. In our view the court canio
to tile proper conclusion — that error had occurred.

But lK)oks treating of insanity contain more than abstract
speculations or general expositions of the science of niediciiio
as applicable to mental diseases. They contain reported cases
and opinions as to the elfect to be given to asserted facts in
determining the presence or absence of insanity; statements
of the views and oi)inions of their writers, which partake of
the nature of facts in the same degree as do the oi)inions of
ex))ei't witnesses who are subject to cross-examination. /A//vvy
'V. The Sf(if(', 40 Ind., .510, was a case in which it was held not
to be error for the trial court to ])ermit counsel to read from a
book purporting to be a medical work, the court instructing
the jury " that the extract was to be regarded not in anywise
as evidence," etc. The objections to the practice so clearly
pointed out by Chief Justice Shaw and others do not seem to
have occurred to the judges; and the court, in Jfanrt/ v. T/n'
Stnt<\ supposed that any evil which might arise from it would
be overcome by the direction to the jury to disregard the ex-
tract as evidence. In the case at bar, as wo liave seen, the
court below did not so instruct the jury. It has been held here
that ordinarily a judgment will not bo reversed because of the

PEOPLE t'. WHEELER.

199

omission of the trial court to give a certain instruction unless
the instruction was requested. ]3ut the rule certainly would
not bo a[>i)licable to a case in which counsel should be pei*-
niitted to state facts not in evidence to a jury, against the
objection of the opposite party. See People v. Taylor, 59 Cal.,
64i>. Here the district attorney was permitted to read the
opinions of one whose opinions (even if we assume the book to
be of recognized authority) were, like the opinions of experts
upon tiio witness stand, in the nature of facts.

We do not think Harvey v. The iState was well decided ; but
if it can be considered law, it will not justify an affirmance of
the judgment in the case now before us. In Legg v. DraJce, L Ohio
St., ii5i(», the bill of exceptions did not show that the passage
from Youutt's work on " Veterinary Surgery," which counsel
wa^ prevented by the court from reading to the jury, had any
relevancy to the cause on trial. The action of the court
below in refusing to permit it to bo read was sustained for this
reason; as if the supreme court had said: "Assuming that
passages from such works may properly be read, they should
at least have some bearing on the issue being tried." V/hat is
said in the opinion of the ])roi)riety of the practice is mere
Jtduiii ()). 2S9). The bill of exceptions before us shows that
the sections read by the district attorney to the jury, from
Ih'owne's woi'k, were relevant. He read "various sections
theivof, commenting upon and treating of the subject of in-
sanity, and sustaining th.j prosecution's theory of the case.'''
Moreover, in Legg v. Drake, the court only said: "Although
unlimited license in range and extent is not allowed to counsel
in thcii' a(l<lresses to the court and jury, yet no pertinent and
logitiinate process of argumentation, within the appropriate
time allowed, should be restricted or prohibited. And it is not
to be denied, that a pertinent quotation or extract from a work
on science or art, as well uj from a classical, historical, or other
publication, nuiy, by Avay of argument or illustration, be not
only admissible, but sometimes highly propei-. ... It
would be an abuse of this privilege, however, to maJce it the
pretense of getting imjn'oper matter before the jury as evidence
in the cause.''^ A pertinent quotation, used by Avay of illustra-
tion, is a very different thing from a report of facts connected
with a particular case, and the opinion of an author thereon

200

AMERICAN CRIMINAL REPORTS.

that they did not indicate or establish insanity; a different
thing from the reading the opinion of a medical writer as
to the effect of particular facts upon the determination of the
question of insanity. Such must be presumed to have been
the nature of the matters read by the district attorney in the
present case, since they sustained the prosecution's theory of
"the case" — this case. The ruling in Wcuie v. Be Wltt^^o
Texas, 401, was based upon a similar bill of exceptions to that
before the Ohio court, in Le<jg v. D/'al'c, and was to the same
etfect. In Clti/ of Iil_pon v. Bettel, 30 Wis., G19, the bill
of exceptions did not show for Avhat purpose a certain treatise
on surgery had been admitted. JS'oh constat, said the court,
but a medical expert had stated that the treatise sustained his
conclusion, and the book was admitted as evidence in the nature
of impeaching testimony, to show that the witness was mis-
taken.

Mr. Bishop, in liis work on Criminal Procedure, section 1100,
says : " An expert may testify to what lie has learned, not
merely from personal experience and observation, but also fi-om
books, and may give an opinion derived from reading and
study alone. But it does not follow that the books tlieniselves
are evidence. AVe have seen that the law of the case should
be given to the jury by the judge and not through law books;
because the books state the law abstractly, wliile the jury are
to be instructed upon the rules governing tlie particular facts.
For the like reason it is the hctte/' dudi'lne that no books of sci-
ence, or other book of the sort, however high or well attcstiid
n ■ i . 'ority, should be submitted to the jury. Yet c(]ually in
t e y' '"■ charge to the jury, and in the testimony of cx-
i'f- •■..-!!. xr'{ oven in the arguments of counsel, passages from
tsicd- ■-( ol's, explained and applied to the case in contro-
versy, are, under limitations varying in some degree in our dif-
ferent courts, pei'mitted to be read."

We need not here pause to inquire whether, in view of tiio
clause in our constitution Avhich prohibits any cliargo as to
facts, a California judge would ijo pennitted to determine what
books are "standard authorities" in tlie medical proFossion;
to read from such, and to explain and apply tlieir contents.
Witli respect to the statement that passages from standard
books may be read by witnesses and by them explained and

PEOPLE V. WHEELER.

201

applied, " under limitations varying in some degree," the lan-
guage employed by the very al)le writer indicates how difficult
he found it to derive any definite rule from the instances
■\vhcrc such practice had a]>]iai*ently been permitted. The cases
cited by Mr. Bishop are T/ie State v. Sartor, 2 Strobh., GO, and
Merlle v. The State, 37 Ala., 139. In the first it was simply
held that although an indictment for obstructing a highway
was at common law, it was permissible for the state solicitor to
refer to the public statutes, not to give character to the offense
as aija'nist the datute, but to show what were ])ublic Avays. 37
Alabama, 139, is based entirely on Stondemneler v. Wdliamfion,
29 Ala., uGO, in which the question considered was not whether
an expert coidd read from medical works, but whether such
boolvs could themselves be introduced as evidence. In the
opinion in the case last named the only English cases cited are
Collier V. Simj)so)i, sujora, and Attorney-General v. The Glass
Plate Co7nj)ani/, 1 Anstr., 39.

Of these the first is directly adverse to the proposition that
a witness can be allowed to read from scientific treatises; the
secoid, which holds that parol evidence is not admissible to
explain the meaning of a Avord used in an act of parliament,
is admitted to have no bearing upon the question under con-
sideration. It is further admitted by the learned Alabama
judge that Greenleaf (vol. 1, sec. 410, note 5) is an authority
against the admissibility of the evidence. Xeither the Mas-
sacluisetts nor lihodo Island cases are mentioned. The Amer-
ican decisions by him referred to arc Boicman v. Woods,
already commented on; LMnhuj v. The State of Wheon^ln, 1
Chand., 178, spoken of as "a very loose opinion," and Green v.
CornweU, 1 City Hall Eccoi'der, l-t. In the last, Avhich Avas a
trial by jury in the mayors court of Kcw York city, a table
from IJlunt's Coast Pilot and Bowditch's Xavigator Avas re-
ceived to proA'e the condition of the tide at a certain time and
place, the presiding judges saying "the testimony is of equal
A'alidity Avith the almanac." But, clearly, Stoadeiiweier v.
Williamson is not authority to the point that a Avitncss may
fortify his opinion as exi)ert by reading from books, since that
question Avas not decided in that case. There an extract from
a medical book Avas itself admitted in evidence, and, as Mr.
Bishop says, it is noAV Avell settled that the books themselves, or
extracts from them, are not admissible as evidence.

202

AMERICAN CRIMINAL REPORTS.

If the last clause of tlie above nitation from Bishop is to be
construed as implying that counsel can read to a jury extracts
from medical works, and explain them, the great weight of
authority is decidedly against so dangerous a license.

In Merlde v. The State, supra, the book read from by the
prosecuting attorney was first proved by the testimony of a
practicing physician to be a book "recognized by the medical
profession as good authority on all subjects therein treated of."
The prosecuting attorney did not read from a book not intro-
duced in evidence nor proved to be authoritative, as was done
in the case now before this court. In Mcrkle v. The State, the
Alabama court, solely on authority of Stoiulenmekr v. Will-
iamson, held that it was proper to receive such a book in evi-
dence. This ruling is in conflict with the established law on
the subject, as stated by Mr. Bishop himself. As to the otlicr
cases referred to in the note to the clause quoted from Bisliop,
some have been hereinbefore mentioned and commented upon,
others have no relevancy to the immediate question. JlcMath
V. The State, 55 Ga., 303, only holds that, under the supervisidu
and subject to the correction of the court, counsel may read
from books treating of the law of this countrv.

Our conclusion is that the court below erred in pei'mittiiig
the district attorney, in his closing argument to the jury, in the
absence of any evidence that the work was of reci^gnized au-
thority in the medical profession, and against the objection of
counsel for the defendant, to read from Browne's ^fedical Ju-
risprudence of Insanity " various sections treating of tlie sub-
ject of insanity, and sustaining the prosecution's theory of the
case."

Judgment and order denying new trial reversed, and cause
remanded for a new trial.

Ross, J., concurred.

McKek, J., concurring.

Books of science or art oxe prim a facie evixlence of facts of
general notoriety and interest. But the court beloAV eri-od in
permitting the district attorney, against the objection ol' the
defendant's counsel, to read to the jury extracts, " commenting
upon and treating of the subject of insanity," from a book
which was not proved to be a recognized or scientiiic work or

THE STATE v. VANDERPOOL. 203

standard autliority, — was not offered in evidence in the case, nor
made part of the testimony of any of the witnesses examined ;
and on tiuit ground, I concur in the judgment of reversal.

TnE State v. Vanderpool.

(30 Oliio St., 273.)

Extradition : Construction of treaty.

1. Prisoner can be tried only for the offense for which EXTRAorrED.

A person extradited under the provitsions of the treaty of 1843, between
the United States ajid Great Britain, tried, convicted and sentenced for
the crime uixin which ho was extradited, cannot be detained in custody
and prosecuted for a different crime than the one specilied in tlie war-
rant of extratlition.

2. Construction of treaty. — Under the constitution of the United States,

the ju-ovisions of this treaty are part of the law of tlie land, enforceable
by the judicial tribunals in behalf of a person bo detained and prose-
cuted.

]\[()tion for leave to file a bill of exceptions to the judgment
of tlie court of common pleas of Belmont county.

I). A. JFoUhujfiworth, attorney -general, and A. II. Mitchell^
prosecuting attorney, for tlie state.
6'. II. Ulackhui'H, for the defendant.

Johnson, C. J. The demurrer to the plea presents the ques-
tion whether the facts stated exemi)ted the accused from pros-
ecution in lielmont county until a reasonable time has elapsed
after the expiration of their sentence for the crime committed
in lUitlcr county. The state had obtained possession of the
accused from the authorities of Canada, under the provisions
of the Ashburton^ treaty, for trial in Ikitler county. They
were there tried, convicted and sentenced for the crime u])on
which they were extradited. Before the expiration of this
sentence, the state souglit to place them on trial for another
criuH?, charged to have been committed before extradition in
Bohnont county, the latter crime being one for which the
accused might have been extradited.

The court of common pleas held that proceedings on the
indictment in Belmont county must be susiiended until a rea-

204

AMERICAN lRIMINAL REPORTS.

sonable time after the expiiation of the sentence in tlio Cutler
county case; or, in otlier words, that the state, having obtained
jiossession of tlie criminals under the extradition treat}', could
not detain them in custody and put them on trial for another
crime. It was also held that the obligations of this treaty
created a personal right in favor of the person extradiled,
which he could plead in suspension of a ])rosccution for such
other crime.

By the tenth article of the Ashburton treaty it Avas " agreed
that the United States and her Brittanic ;>[ajcsty shall, ui)on
mutual requisitions by them or their ministers or authorities,
respectively made, deliver up to justice all persons who, being
chargect with the crime of murder, or with assault with intent
to commit murder, or piracy, or arson, or robbery, or forgery,
or the utterance of forged paper, committed within the juris-
diction of either, shall seek an asylum, or be found within tlie
territories of the other: Provided, that this shall oidy be done
upon such evidence of criminality as, according to the laws of
the place where the fugitive or person so charged shall bo iouud,
would justify his apprehension and commitment for trial if the
crime or offense had been there coinmitted; and the res[)ectivo
judges and other magistrates of the two governments shall
have power, jurisdiction and authority, upon comi)laiut mailo
under oath, to issue a warrant for the ap])rehension of the
fugitive, or person so charged, that he may bo brought before
such judges or other magistrates, respectively, to the end th;it
the evidence of criminality may be heard and considered; and
if, on such hearing, the evidence be deemed sulliciont to sustain
the charge, it shall be the duty of the examining judge or
magistrate to certify the same to the proper executive autlior-
ity, that a warrant may issue for the surrender of such fugi-
tives. The expense of such apprehension and delivery shall
be borne and defrayed by the party who nuikcs the retpiisitiou
and receives the fugitive."

Independent of treaty stipulations, the obligations to sur-
render fugitives from justice was of an imperfect nature. It
rested on comity between states. Each determined for itself
the extent of this obligation, and the nature of the crime and
mode of surrender.

Prior to, as well as since, the treaty of 1842, it has been the

THE STATE v. VANDERPOOL.

205

settled policy of both the United States and G rcat TJritain to
furnish an asylnm for persons charged in other states witli
religious or political offenses. Eacli zealously vied with the
otlicr in maintaining this right of asylum. Hence it was that
in the treaty of 1842 it was expressly' limited to seven well-
defined crimes. Hence it was, al^, that the riglit to demand
a surrender in the specific cases named Avas so carefully
guarded. The accused was protected in his asylum, unless the
authorities there should find him guilty of one of the crimes
specified in the treaty.

By the terms of the treaty, the judge or other magistrate
of the government upon whom the demand was made, is to
hear and determine, accoi'ding to the laws of his own countrj-,
whether there is a case made, and, if so, to report to the proper
executive authority, Avho shall issue a warrant for his extra-
dition.

The right of the United States to demand the surrender of
fugitives from justice found Avithin the British dominions is
purel}^ conventional; hence the correctness of the ruling of the
court below depends on the true construction of the treaty,
and, also, how far the judicial tribunals of the demanding gov-
ernment arc required to give effect to treaty stipulations,
especially how far the judicial tribunals, federal and state, can
take cognizance of and enforce the ])rovisions of the treaty
upon the i»lea of the person surrendered.

In United States v. Caldwell, 8 Blatclif., 131, and United
Stages V. Lawrence, 13 Blatclif., 295, Judge Benedict held that
Avhile the abuse of the provisions of the treaty, or want of good
faith by the demanding government, might furnish cause of
complaint by the surrendering government, yet such complaints
do not form a proper subject for judicial cognizance. See,
also, Adriance v. Lxigrave, 59 N. Y., 110. Other cases to the
same effect might be cited, but as the decisions and the views
of writers upon the subject differ so widely, Ave are free to de-
termine the questions from the terms of the treaty itself,
guided by the Avell-established rules for the construction of
such instruments.

By section 2, article C, of the constitution of the United
States, " This constitution, and the laAvs of the United States,
made in pursuance thereof, and all treaties made, or which shall

200

AMERICAN CRIMINAL P.EPORTS.

le made, muJer the author tfy of the United States, .shrdl he tie
supi'eme hue of the land, and the judges of every atafe nhall le
lot/nd thereby, anything in the constitution and laws of any
state to the contrary notwitlistanding."

This treaty is, therefore, the law of the land, and the judges
of every state are as much bound thereby as they arc l)y the
constitution and -iws of the fedci'al or state government. It
is, tlierefore, tlie imperative duty of the judicial ti-ibiiiiiil;; of
Ohio to take cognizance of tlie rights of persons arising under
a treaty to tlie same extent as if they arose under a statute of
the state itself.

"While authority is not wanting to support the dociHJons in
CaldiceWs Case and Zawrence's Case, sujjra, yet we submit that
these decisions ignore the provisions of the federal constitution
just cited.

Again, if it be true that the abuse of extradition proceed-
ings, iradcr this treaty, is an olTonse for whicli the surrciulor-
ing government alone can complain, the remedy is totally
inadequate, and the treaty itself may be rendered nugatoi'v.

When, as in the present case, tlie surrender is to one of tlie
states of the United States, the prisoner ' passes be vond the
control of the federal government and into that of Lliis state.
Upon complaint made by the British government to the fed-
ei'al government of an abuse, by the state of Ohio, of the
process under the treaty, the federal government could only
answer, as it has done in many instances heretofore, that, under
our system of state and federal government, the latter is
powerless to control the state authorities. If the riglit under
the treaty to be protected from other prosecutions can only be
enforced by the surrendering nation by protest or otherwise
against the one making the demand, that is, if it is a question
not cognizable in the courts, it is of little value under our
system of federal and state governments.

After the United States has secured the surrender, for an
offense against state law, the accused is delivered to the au-
thorities of the state for prosecution, Avhen all federal con-
trol is lost. If the accused is of little or no political influence,
the difficulty of giving him that protection which was intended
by the treaty is so great, if the courts cannot intervene, that it
is of little or no value as a protection to the person extradited.

THE STATE v. VANDERPOOL.

207

TTo conclude, therefore, and both reason and the weight of
autliority support tliis view, that the judges of this state are
bound by tlie provisions of this treaty, and that if it secures
to llio person extradited exemption from trial for crimes and
otfcnsos other than those specified in the warrant of extradi-
tion, it is the duty of the courts to take cognizance of his plea.
]u)sf(-i' V. Nellson, 2 Pet., 253; CummomoeaJth v. Haives, \^^
Bush, 700; Winslow'a Case, 10 Am. Law Rev., G17; llnlied
States V. Watts, 8 Sawyer, 370; 14 Fed. Rep., 130; North Am.
Eev., :May, 1S83, page 497.

II. As to the right of the demanding government to hold the
accused and prosecute him for a different crime or offense.

This treaty is to bo subject to the same rules for ascertaining
the intention of the contracting parties as in case of other
contracts. It enumerates seven well-defined crimes for which
extradition may be had. It thereby excludes all non-enumer-
ated crimes and offenses, whether of a political or other char-
acter, and leaves the surrender in such other cases to the
disci-etion of the government where he is found. It limits the
duty of surrender to those cases specified in the treaty, in
whicli the evidence of guilt is sufficient, according to the laws
of tlio nation where the fugitive or person charged is found, to
justify his committal for trial, if the act charged had been
committed there. The right of the nation where the fugitive
is found to first hear and determine the case, and to decide
upon the evidence whether, according to its own laws, the crime
cliarged has been committed, i. e., whether a case for com-
mittal has been made out, secures to the government upon
which the demand has been made the right to determine for
itself whether the demand shall be complied with. This nec-
essarily excludes the idea that the demanding government can
decide for itself to trj"- the prisoner, after obtaining custody,
for other crimes ; otherwise the purpose of the treaty is defeated.
If the demanding government can so decide, the whole inten-
tion of the treaty could be defeated, and the right of asylum,
which has been the boast of both governments, Avould depend
entirely on the action of the demanding government.

To extradite under the treaty for an offense named therein,
and then to retain the prisoner for a non-extraditable offense,
or for a different one, though extraditable, u])on which no

203

AMERICAN CRIMINAL REPORTS.

hearing had been had as provided in the treaty, would ho, not
onl}' a breach of good faith by the demanding government,
Init a viohition of the right of asylmn in favor of the accused
guai'autied to liim by tlie treaty. The sole object of tlie treaty
Avas to enable each government to protect its citizens and
inhabitants in the right of asylum, except they come within
the provisions named. The legislatiort of both governments
clearly supports this construction.

Ey tlio act of congress of 1841, United States Ecvised Stat-
utes, section 5273, " It shall be lawful for the secretary of state,
under his hand and seal of office, to order tlie person so com-
mitted to be delivered to such person as shall be authorized in
the name and behalf of such foreign government, to he tried
for the crime of which such j^cfsoii shall he so accused.^^

Again, by section 5275, "Whenever any person is delivered
by a foreign government and brought into the United States
and tried for any crime of which he is duly accused," it is the
duty of the president to take proper measures for his " trans-
portation and safe-keeping until the conclusion of his trial, for
the crimes or offenses specified in the warrant of extriidition,
and until his final discharge from custody or imprisonment,
for or on account of such crimes or offenses, and for a reason-
able time thereafter, and may emplo\" such porti(jn of the land
or naval fore. A the United States or of the militia thereof as
may be necessary for the safe-keeping and protoctio:i of the
accused."

In like manner, the British parliament, in 1843, for tlie pur-
pose of carrying into effect this treaty, enacted tliat the i)ers()n
to be extradited should be delivered to the person authorizcnl
by the United States to receive him, "to be tried for the crime
of which such person sliall be accused."

While legislative interi)ret'ition of statutes is not conclusive
upon the courts, yet in the case of a treaty, which is in its
nature a contract between nations, enactments lilco tliese by
the high contracting parties ai'o of persuasive power in the
construction of the treaty.

The ri^ht of the state of Ohio over the accused, who had
sought an asylum in Canada, is derived from the provisions,
express or implied, of the treaty of 1842.

In view of the provisions of this treaty, the safeguards

THE STATE v. VANDERPOOL.

209

thci'oin provided against the infringement of the right of
asyhun save in the specified cases, and the legislation by both
goveiMunents to carry out those provisions, we think it clear
tlijit the court below did not err in refusing to put the accused
on trial for a crime for Avhich they wei'e not extradited.

In the correspondence bstwccn the United States and Great
Britain, which took phice in 1SG7, growing out of the refusal
of tlie latter to surrender AV^inslow, except upon a stipulation by
the former that he should not be tried for another offense, the
conflicting views of the two governments are stated. Winslow
had been domanrled as a fugitive, charged Avith forgery. Great
Britain refused to deliver him unless the United States would
stipnlato that he should not bo tried except for the crime
cliarged. This was refused, and an extended correspondence
wiis the result. Finally the British government, as a tem-
porary measure, and until a now treaty was made, suspended
its claim to require such a stipulation.

Time will not permit an analysis of the claims of the two
governments. It is suflicient to say that it discloses a con-
trariety of views by eminent statesmen and publicists upon the
question at issue, and that the refusal by the United States
to ma Ice the stipulation demanded was based chiefly on the
ground tliat the demand was unusual, and was a reflection upon
our government, after a successful execution of the treaty for
nearly forty years without such a stipulation. If it be con-
cedi'd tluit the United States asserted the right to retain an
extradited prisoner and try him for another crime, that claim
is not conclusive upon the courts. Nothing was then settled as
to tlie true construction of the treaty.

If, as we hold, the question is one of personal right under
the treaty, as well as of international law, it follows that the
courts can hear and determine sudi right when it is invaded.

Much more miglit be said in support of our conclusion, but
we content ourselves witli a reference to the following de-
cisions and discussions on the subject : (Jominou tnodlth v. Hawes^
13 Bush, (;i»7; United iStateii v. WtdtH, 14 Fed. Uei)., 130; Letter
of Wm. Beach Lawrence on "Extradition," 10 Albany Law J.,
:52!»; North Am. llev.. May, 18S3, i)age 407, title " Extradition;"
Whart. Crim. Plead, tfc I'l-ac, ijjj :iS-57. and cases note<l; 'ilarir
foril i\ Sta.t,\ 10 Texas, <;-J7; Mutter of (\ihiioh. 47 Mich., 481;
VuL. IV - 14

210

AMERICAN CRBUNAL REPORTS.

Spear on Extradition, ch. 4, pp. G5-74; 10 Am, Law Rev., G17;
Compton, Ault c& Co. v. Wilder, 40 Ohio St., 130.

Leave refused.

Note. — We think the reasoning of the court in the above case, upon its
facts, is unanswerable. Tlie same may be said of Judge Aclieson's decision
in In re Miller, post, for it would seem that under the facts in that case the
return of the wai'den of the penitentiary to the writ, setting up an order of
commitment of a court of competent jurisdiction, was all that was nccos-
sary. It is to be regretted that there is so much conflict in the decisions on
a question of this nature. Until the question is Anally and autlKnutativcly
settled each case must bo governed to a greater or less degree ui)on its own
peculiar facts. It will not do to say that " extradition treaties ai'o not made
in the interest of fugitive criminals," for the same might be said of all con-
stitutional provisions. No mutter how atrocious the crime charged against
a man, the courts see to it that, when arraigned for trial, ho has the full
measure of the humane protection of the law, until, on a fair trial, he has
been duly convicted. It cannot be the proper construction of treaty pro-
visions that an abuse of extratlition proceedings is an offense for which the
surrendering government alone can complain. All treaties mode under tlio
authority of the United States are part of the law of the land. They are
made such by the constitution of the United States. Tlie law of the land,
then, is as much for the benefit of the person who claims any riglit, privi
lege or imumnity under treaty provisions as it is for the beneiit of the
parties to it. It follows, therefore, that the learned judge who wrote the
decision in State v. Vaiiderpool simply obeyed the mandate of the constitu-
tion in giving force and effect to the treaty provisions in favor of the extra-
dited defendant.

Judgo Hoffuian in United States v. Watts, 14 Fed. Rep., loO, and tlie su-
preme court of Kentucky in Commonwealth v. Haitrs, 13 Bush, C!)7, have
held that an extradited person, under the treaty with Great Britain, cannot
be tried for any offense other than extradition crimes.

In 1)1 re Miller, 23 Fed. Rep., 'd'i, the petitioner wa.s convicted of burglary in
the court of oyer and terminer. Clarion county, Pennsylvania, and sciiti lucd
to undergo imprisonment for seven years. After he entered uiion liis
term he escaped from the penitentiary and lied to Canada. Burglary not
being an extradition crime, informations were made in said county, chorg-
ing him with robbery and assaidt with intent to connnit nmrder, and under
extradition proceedings had on these cluirges, he w;u» surrendered liy tlio
Canadian government and taken 1 Kick to the penitentiary. Bills of iuiliit-
ment against him on the !-aid charges were ignored by the graml jury, and
the petitioner alleged that said informations were gotten up by the poiiit'ii-
tiary authorities aa a mere pretext to secure liis surrender, to the eiiil that
they migiit seize and imprison him on his conviction for burglary. The re-
turn of the warden of the penitentiary set up, as his authority for holding
him, his commitment to the penitentiary by the court of Clarion tounty
under his convic!ti(m anil sentence for burglary.

The iH'tition for ajiplication for a writ of habeas eorptiH was presented to
Judge Achesun, who refused to releiune the petitioner. " Clearly," he says:

KER V. THE PEOPLE.

211

" An offender can acquire no rights against the claims of justice by flight to
a foreign jurisdiction ; and extradition treaties are not made in the interest
01 fugitive criminals." Citing United Slates v. Caldwell, 8 Blatch., 131;
United States v. Lawrence, l!3 Blatch., 29."); Adriancev. Lagrave, 59 N. Y.,
110; State v. Brewster, 7 Vt., 118; Davis' Case, 18 Pa. St., 37. "It may
have been open to the petitioner," ho says, " when before the Canadian
courts, to show that the extradition proceedings were not prosecuted in
good faith. But, having been surrendered, it is not for him to raise that
qucj^tion before the tribunals of his own country."

In the absence of any compact or other arrangement between the states,
a person extradited from one state to another for a certain offense, after
being tried, accpiitted and discharged, may be arrested and tried for another
offense before ho is allowed to return to the state from which he was
brought. State ex vcl. Brown v. Stewart, Circuit Judge, CO Wis., 587.

Ker v. The People.

(110 111., 627.)

Extradition : Jurisdiction — Treaty — Variance — Embezzlement — Eleo-
tion — Evidence — Various acts of embezzlement — Indictment — Ver-
dict — Larceny at common laiv,

1. fLE.v TO JURISDICTION — Illegal AiiuEST in foreign country. — To an
inilictmeiit for embezzlement and larceny the defendant pleaded to the
jurisiliction of the court, in substance, that the president of the United
States, upon th(? written request of the governor of this state, issued nn
extradition warrant to the government of Peru for the suiTender of
the defendant, under the treaty with that government, to be brought
back to this country on a charg(} of larceny ; that on the same day this
warrant was issued, the secre'nry of state made a written request upon
the United States consul acting at Ijima, to procure the executive of
Peru to surrender tlie defendant to one Jtilian. under said treaty: that
no n'(|iu'st was ever made by said consul, or by Julian, or by any
other perM>n, upon any of the authorities of the government of Peru
for the stuTcnder of defendant, nor was any consent or authority
piveji by any of the authorities or agcMits of Peru, to Julian or to any
other person, to arrest and remove defendant from Poru; and that
on April 3, 1883, while the defendant was domiciled at Lima, in Peru,
Jidiaii, with {he aid of persons whose names were unknown, without
any authority or warrant from the authorities or diplomatic agents of
Pern, arrested the defendant, and forced him to go toCallao, and there
placed him on board a vessel and carried him to Honolulu, and at
that poii; transferreil him to another vessel which carried him to Sun
Francisco, California, where he was arrested on a rcMjuisitiou from
the governor of this state, and brought to this state for trial. Tlie
court below sustained a demurrer to tliia plea. Held, that the de-
murrer was properly sustained.

212

AMERICAN CRIMINAL REPORTS.

8. On requisition, reqularity op arrest not open to question.—
Where a person cliargoJ witli crime in this state was arrosteJ in a
Bister state and brought licre for trial, on a requisition of the governor
of this state, it was held tliat our courts, on the trial of such fugitive,
would not in(}uire into the regularity of his aiTest and surrentlor i i such
sister state, and tliat it did not matter if he had been illegally arrested
in a foreign country and brought forcibly to such sister state.

3. Fugitive from justice — Legality of arrest not a question fob

THE courts. — Whei'e legal steps have been taken for the apprclu^nsion
and return to this country of a fugitive from justice, and he is brought
back to the United States, where he is arrested on a requisition of the
executive of this state and brought here for trial, the fact that he may
have been illegally arrested in such foreign country and brought to the
United States does not deprive the courts of this state of jurisdiction
to try him for any offense charged against him, the state not being a
party to such illegal arrest and abduction.

4. Legality op arrest of a fugitive froji justice in a foreign coun-

try NOT necessary TO GIVE COURT JURISDICTION. — The rulo at com-
mon law is, that the court trying a party for crime committed within
its jurisdiction will not investigate the manner of his capture in a for-
eign state or country, tliough his capture and return may have been
plainly without authority of law.

6. RiGUT OP ASYLU.M TO FUGITIVE Fr.oM JUSTICE. — A fugitive from jus-

tice has no asylum in a foreign country when he is guilty of an offense
for which lie is liable or subject to extradition, by treaty between this
and the foreign government. If he ia illegally and forcibly removed
from such foreign country, that country alone has cause of complaint,
and he cannot complain for it.
C. Extradition of fugitives depends on treaty. — Where no treaty
exists between two governments for the extradition of criminals fleeing
from justice, there is no obligation existing that can bo insisted upon
to suiTender them for trial to the government from which they have
fled ; but as a matter of comity between friendly nations, gicat offend-
ers are usually suiTendered on retjucst of the govei-nment claiming the
right to punish them.

7. Fugitive, when extradited, must be tried only for the crimes

NAMED IN TREATY. — Where a fugitive from justice has been brouglit
back to the country from wliich ho has floJ, on a warr.ant of extradi-
tion in conformity with the <orms of a treaty existing between two
governmentH, ho cannot bo proceeded against or ti'ied for any other
offenses tlian those mentioned in the treaty, and for which he was ex-
tradited, without first being afforded an opportunity of returning.
But this doctrine has no np[)li('<ation where the fugitive has been
brought back forcibly, and not under the terms of the treaty, or under
an extradition warrant.

8. Variance as to ownership op securities embezzled.— An indict-

ment for embezzlement and larceny charged the money, funds and
Bocurities embi'zzled and stolen, as tlie goods and personal ]>ro]icrty of
A, B and C, partners under the name of A, B & Co. The i)roof showed

KER V. THE PEOPLE.

that Ix'forc t!i(^ iill!',";'.'il oftt'tiso tlio firm w.is coinposcd of A. ]i. C and
D, (loinp; business undor tlie s.inie name, the latter being a special
partner, and that the iuticles of jiartnership were a matter of record}
but that before tlie alleged (Jlense, D retired from the lirm, although
the dissolution of the lirm of the f<;ur was not made a matter of reo
ord, and notice given, as retiuired by law. Held, tiiat there was no
variance, as, after D retired, the property in fact belonged only to A,
D, and C.
9. Embezzle JiKN'T — CoMPELLiNO an election as to a single act.— On
an indictment for embezzlement and lax'ceny of moneys, funds and
eocurities, there is no error in the court refusing to compel the prosecu-
tion to elect upon what alleged act of embezzlement or larceny a con-
viction will be asked, as emlczzlemcnt may, and most often does,
consist of many acts done in a series of years by virtue of the confi-
dential relations existing between the employer and employee.

10. Indictment for emisezzlemknt — Evidexce op various acts.— The

statute (section 82 of the Criminal Code) makes it sulHcient for an in-
dictment for embezzlenunit to allege, generally, an embezzlement,
fraudulent conversion, or taking, with intent to convert to the defentl-
a;it's own use, the money, funus cr serurities of the employer to a cci^-
tain amount or value, without specifying any particulars of such
embezzlement, and on the trial evidence may b'> given of any such
embezzlement, fraudident conversion or taking witi. such intent ; .and
it is made sufflcient to maintain the indictment, taat any bullion,
money, note, bank-note, check, draft, bill of exchange or other secu-
rity for money of the euiploytr, of Avhatever value or amount, waa
fraudulently converted or taken with such intent by tlu' clerk or em-
ployee. In such case it is ^iroper to allow proof of any t ud all acts of
embezzlement to go to the jury.

11. New trial — Question ok fact and of law. — Ordinarily, whether

there is evidence to warrant a conviction in a criminal case is a ques-
tion for the Jury, the court taking care always to see that no manifest
injustice has been done : but whether the verdict is contrary to tho
law, is a question for the court.

12. When verdict is aoainst the law. — A verdict in a criminal case is

against tho law when, admitting all tho evidence tends to prove, it
docs not show the crime charged.

13. Indutment good, in language of the statute.— An indictment for

eud)ezzlement substantially in the language of the statute is sufft-
cient.

14. Statute defining ejibezzlejient, construed.— Tlie word "care," aa

used in section 75 of the Criminal Code, relating to embezzlement, ia
the equivalent of " custody," and may mean "charge," "safe-keep-
ing," " preservation," or " security." The word " possession," as used
m the same section, has, perhaps, a different and broader meaning
than the wonl "care;" but it may also mean "to keep," "to take or
seize hold," "to hold or occupy," as tho owner of property would or
might do. And it matters little whether one or both words are used
in an indictment.

"Tl»^^"

214

AMERICAN CRIMINAL REPORTS.

15. What is possession of goods by an employee, belonoino to em-

ployer. — A bank clerk 'lavinp: access to the funds and Hecnritios of
tlie bank in its vaults, anc. trubted with their keejiinfj for various ))ur-
poscs, may Ije said to liare their possession by virtue of liis emjJoy-
ment. within the nuanin^ of paction 75 of the Criminal Code.

16. Embezzlement — Laucevy 'T ' muon law.— The fact that the felo-

nious taking of inom/s m ^ rities out of a bank vault by a bank
clerk, and converting thei. 'n' nvn use, may be larceny at com-
mon law, makes it no less emlK>z;;lement under the statute. It is
entirely comi)eteut for the 'egislaturo to declai-e what acts shall cou-
stitute the crime of embez /.lemciit, ana i'l \ 'ho jninishment.

Writ of Error to the Criminal Court of Cook County; the
Hon. Joseph E. Gary, Judge, presiding.

Mr. Bolert Ilervey and J//*. C. Stuart Beattie, for the ap-
pellant.

Mr. Luther Laflin Mills and Messrs. Swett, Ilaslcell cfc Gross-
<yn,p, for the jieople.

Mr. Justice Scott delivei'cd the opinion of the court.

It appears i'roui the record before tliis court that at the
Eebiuary term, 1883, of the criminal court of Cook county,
the grand jury presented, in open court, an indictment against
Frederick M. Ker, whicli contained foui' counts, in the first of
which he is charged with embezzlement as bailee; in tlie
Becond with embezzlement as a clerk; in the third, witli lar-
ceny as at common law; and in the fourth, with receiving
stolen property. In the several counts, the money, funds and
securities alleged to have been embezzled and stolen are al-
leged to be the personal goods and property of David Preston,
iSamuel A. Ivean and Elisha Gray, a copartnership firm under
the name of Preston, Xean & Co. On the 13th day of
October, 18S3, defendant, on being arraigned, filed a plea to
the jurisdiction of the court over his person, the effect of
which was to ask immunity from prosecution on the indict-
ment tiien ])ending against him, for the reasons set forth in
his plea. To that plea a general demurrer was sustained, and
defendant was, by the court, required to plead over. Against
the protest of defendant that he was entitled to immunity
from prosecution for the oifenses alleged against him in the
indictment, on account of the matters set forth in his ])lea,
and because he refused to plead over, the court entered a ])lea

gov(>n
the Ui

KER V. THE PEOPLE.

215

of not gnilty for him. On tlio trial the jury found defendant
o-nilty of cniljczzlomcnt, as charged in tlie indictment, and
li.ved the term of punishment at ten years in the penitentiary.
A motion for a new trial entered by defendant was overruled,
and the court pronounced judgment on the verdict, and de-
fendant brings the case to this court on error.

One ground of error relied on with much confidence is the
decision of the court sustaining the demurrer to defeiulant's
plea calling in question the right or jurisdiction of the court
to proceed with the trial against him, — or, what is the same
thing, it is insisted it was error in the court not to grant him
immunity from prosecution. Of course, the demurrer admits
tlie facts alleged in tlie ])loa, and there can be no controversy
as to wliat they are. Sliortly stated, the principal facts are,
tluit. upon the written recjuest of the governor of Illinois, the
president of the United States issued an extradition warrant,
(Urectcd to the government of the republic of Peru, for the
snrrendei" of defendant, under tlie treaty of our government
Avith tliat govei'umeiit. and named therein Henry G. Julian as
m(>sscuger to receive defendant from the autliorities of Peru.
The crime of larceny, with which defendant stood charged, is
one of the oll'enses specified in the treaty for which a party
slioidd be surrendered, and it was specified in the president's
warrant as the crime for which his surrender was demanded.
On the same day the executive warrant was issued, the secretary
of state at Washington made a written request upon the United
States consul acting at Lima, to procure the executive of Peru
to surrender defendant to Julian, under the treaty between the
United States and Pei'u of September 12, 1870, which, it is
averred, was and is tlie only treaty in force between the two
governments. It is tlien averred no request was ever made by
the United States consul at Lima, or by .Tulian, or any other
person. ujKm any of the authorities ordi})lomatic agents of the
governmei . of Peru, for the surrender of defendant, in com-
pliance with the president's warrant, nor was any consent or
autliority given by tlie authorities or <liplomatic agents of Peru,
to Julian or to any other person, to ai-rest and remove defend-
ant from l*eru, for any cause, and that on the 3d day of April,
l!^s;], while defendant was (.omiciled at Lima, in Pei'u. Julian,
with the aid of ])ersons whuse names are unknown, without any

216

AMERICAN CRIMINAL REPORTS.

authority or warrant from the autliorities or diplomatic a'.^onts
of rem, arrested det'en(hint, and forced him to go to Culluo,
and there placed him on board the steamship " Essex," iuid
kept him a close prisoner on such voss '1. Afterwards tlio
" Essex " sailed to the port of Honolulu, with defeiKJiiiit on
board, and there, at that port, but i)erliaps outside the liai'l)()i',
defendant was transferred to the " City of Sidney," an j\mori-
can ship about to sail for San Francisco, in California. Tlio
steamship " Essex" was a vessel belonging to tho navy of the
United States, and was at the time commanded by ollicciv, of
the navy. Tho " City of Sidney " was perhaps an Americm
merchant vessel, — but how that is, matters little. While tliesc
events were transpiring, the })arties prosecuting procuriMl from
the governor of the state of Illinois a requisition upon tl:o gov-
ernor of California, for the arrest of defendant, in whicli Frank
Warner was named a suitable person to receive defendant from
the authorities of Californijiand bring him to this state for trial.
Afterwards tlie governor of California issued his wai'i'ant, in
pursuance with the requisition of the governor of the state of
Illinois, for the arrest of defendant. On his jvrrival at San
Francisco in the " City of Sidney," defendant was arrested, on
the warrant of tho governor of California, and delivered to
Frank AVarncr, the messenger named to receive him, and was
by him brought into this state, and delivered into the custody
of the slieriif of Cook county, Avhere the indictment on wliicli
he Avas afterwards tried was found, and was then pending in
the criminal court against him. Other mattei-s are contained
in the ])lea, but as they are not necessary to an understanding
of the discussion that is to follow, they need not be stated.

One proposition asserted by counsel for the defense is, tho
criminal court of Cook county never obtained jurisdiction of
defendant by " due process of law," for the purpose of trying
him for larceny, or any other crime. The position taken on
this branch of the case is much weakened by the consideration
it appears from the averments of the plea itself the bringing
of defendant info the state trying him for an offense com-
mitted within its limits, was by " due process of law," what-
ever wrong may have been done to him elsewhere. The
governor of the state of Illinois made a requisition upon the
governor of the state of California for the surrender of (1(>-

KER V. THE PEOPLE.

217

fondant as a fugitive from tlio justice of the state, and desig-
nated Frank Warn(!r to i-eceive defendant and bring him back
to this state. In coin])liance with that requisition, the gov-
eiiior of CaUfornia did issue his warrant, upon which defend-
ant was arrested within tlie jurisdiction of that state, and
dehvercd into the custody of Frank Warner, who brouglit him
into tliis state, and dehvercd him to the sheriff of Cook county.
That was in accordance with usage and hiw. It is not allow-
able, on the trial of one who has been surrendered by a sister
state, under the laws of congress, as a fugitive from justice, to
iiKjuiro as to the regularity or irregularity of such surrender.
It ail'ects neither the guilt nor innocence of the accused nor tho
juiisdiction of the court to try him. Conceding, as may bo
(lone, defendant was arresteil in l*eru, and brought into tho
state of California, without warrant of law, tho state now
pi'usix'uting defendant was not a party to any violation of any
treaty or other public law. The ajjplication the state made
to the executive de|)artment of the general government was
for the legal arrest of defendant, and if there was any abuse
of tlie wai'iant of tlie federal government, or any treaty ob-
ligations with a friendly power violated, it was not done by
the state now conducting the prosecution against defendant.
Julian, whom it is alleged nuide the illegal arrest of defendant,
and brought him within the jurisdiction of tho state of Cali-
fornia, was acting either under the warrant of the president or
on his own responsibility. He did not bring defendant into
this state at all. It was done b}'^ another person, on a requisi-
tion from the governor of Illinois, and on a warrant issued by
the governor of California for his arrest in that state. Of tho
action of tho state prosecuting him, defendant can have no
just ground of complaint that he was brought within its juris-
diction without " due process of law." T/ie People v. lioioe, 4
Parlccr's Cr. Rep., 2r»;>; Ailriance v. Layrave, 59 N. Y., 110;
The State v. lioss, 21 Iowa, 407.

But waiving every objection to the ])lca that may seem to bo
technical, and considering it on the broadest grounds taken in
its support, it is thought the demurrer was properly sustained.
Three propositions are stated, which, if they can be maintained,
it is insisted lead to the ecmclusion the ei-iminal court of Cook
county never obtained jurisdiction of defendant to try him for

218

AMERICAN CRIMINAL REPORTS.

larceny or any other crime: First, that the ITnitorl States, by
its treaty with the roi>ublic of Peru, provided " duo pi-ocess of
law" for getting jurisdiction of jiersons domiciled in that
country chai'ged with liaving committed certain crimes, among
whicli is hirceny, of which defonchmt was charged in one count
of the indictment against him ; second, that such " duo process
of law" must be obeyed in all its terms, expressed or implied;
and third, that such " due process of law " for the purpose of
getting jurisdiction in such cases, by necessary implication ex-
cludes any other mode of getting jurisdiction. As has beca
seen, defendant was not, in fact, brought within the juris-
diction of the United States under its treaty with Peru ; but
the argument assumes that if defendant was brought back to
the United States otherwise than under the treaty between
the United States and Peru, his capture and detention would
be unlawful, as being in violation of a right of asylum he is
supposed to have had, under the treaty, at the place he was
domiciled hen ciiptured. Xo principle is suggested on which
this proposition can bo maintained as broadly as stated, nor is
anj^ case, Engliih or American, cited where the decision was
rendered, on analogous facts with the case being considered,
that holds the doctrine contended for. Und<jubtcdly at com-
mon law the rule is, the court trying a party for a crime com-
mitted within its jurisdiction will not investigate the manner
of his capture, in case he had Hod to a foreign country and had
been brought back to its jurisdiction, although his ciiptui'O had
boon i)hiinly without authority of law. It is sulficicMit tlie ac-
cused is in court, to require him to answer the indictment
against him. It is thought, and with good reaso:i, any other
rule would work great embarrassment in the ailministraticm of
the criminal law. In E,c parte Scott, 9 Barn. t*c Cress,, 410, the
accused was arrested at Brussels by a police ollicer, Avithout
any warrant of law, and brought back to England. The
prisoner was brought up on halfeaa corpus, that she might be
discharged. It appeared a true bill had been found against her
for a misdemeanor, and Lord Tenderden, before whom the writ
was heard, refused to inquire into the circumstances of her ar-
rest, whether it was legal or illegal, and hold the accused
amenable to justice. It wassaidin thatcaso, if theact comi)laincd
of were done against the law of a foreign country, that country

KER I'. THE PEOPLE.

210

iiiiiilit liiivc vindicated its OAvn law. It does not seem to be
doubted that this case accurately states the common law on this
subject, nor is it doubted that many well-considered American
cases declare the same doctrine. TJte State v. Smith, Hailoy's
(S. C.) Law Rep., 281, and note; The State v. Brewxtei', 7 Vt.,
118; A<l nance v. Zat/mve, 59 N. Y., 110; The Slate v. liim, 21
Iowa, 407; United States v. CnMwell, 8 Ulatchf., 131; United
Stdftfi V. Lawrence, 1.3 id., 2l>5. The rule is ditrerent in civil
cases, 1'or the reason a party guilty of fraud in bringing a party
within the jurisdiction of the court will not be permitted to
have a personal advantage from his own wrongful conduct.

It may be well to recur again to the distinction taken by
counsel which it is insisted takes the case being considered out
of the rule esta*l)lished by the English and Ameiican cases
cited, that some further discussion nuiy be had upon it. The
position talvcn is, that where a tr(>aty exists between two gov-
cnnnent. , as no capture can lawfully be had of a party accused
of crime, in the c .untry to which he has tied for asylum, ex-
cept under the terms of such treaty, if a capture and removal
(»f a l)iirty is made in violation of the treaty it is without
"due process of law," and the court witliin whose jurisdiction
the accused is wrongfully brought obtains no rightful jurisdic-
tion to try him for any crime, — either for the crime for which
it was attempted to extradite him, or for any other crime. The
exact question arising in this case was not involved in either
of the cases vt ,s)/j>ra, nor, indeed, has the attention of the
court Ix^en called to any case where the facts were precisely
analogous.

It is confidently insisted all through the argument for the
defense, that defendant's right of asylum, under the treaty be-
tween the two governments, was complete when he was domi-
ciled in Peru, and that he has been deprived of that right by
sheer force, without "due process of law." But is that posi-
tion tenable? Upon what principle can it be maintained? As
a question of law, on the facts as stat(>d in the plea, defendant
never had any right of asylum in Peru that would secure him
innnunity from ari-est cm account of offenses mentioned in the
treaty, and for which a party was subject to extradition. Conced-
ing, as may be done for the pur|)oses of this decision, the propo-
sition insisted upon, the enumeration of certain crimes in the

220

AMERICAN CUDUNAL REP0IIT3.

treaty for which a party may bo cxtraditcil implies that as to
all other offenses he is guarantied asylinu in the country where
ho is domiciled, how does that, if true, affect the question bcin"
considered? vVs to the crime of larceny, with which defend-
ant was charged, he could have no right of asylum in Peru,
as that is one of the crimes enumerated in the treaty, and what
right sccnired by treaty was violated when ho was arrcitcd,
either with or without duo process of law? The accused was
subject to extradition at any time, under the treaty, and wliat
difference can it malce, in law, as to the right of a state court
to try del"e:i(hint for an extraditable crime, wiiether the existin""
treaty was, in fact, observed in all its forms i Tliat Avhich was
done, if wrong, was in violation of international law, and if
the government of Peru does not com])hun of the arrest of de-
fendant within its jurisdiction, as an infraction of international
law, it does not Me in the moiitli of defendant to make com-
plaint on its behalf. Questions arising under international law
c;)ncern principnHy the nations involved, and their settlement
is a national affair.

Ilejecting, as must bo done, tho erroneous assumption de-
fendant had the right of asylum in Peru under tho treaty be-
tween the two governments, and tho argument for the defense
is wholly without force. It is plain he had no right of asylum
the law of either government would pi'otect. The treaty, as
to the crime of larceny, with which defendant stood indicted,
had provided no asylum that would secure him immunity from
arrest for that crime in the country whore ho was domiciled.
The utmost that can be claimed is, that the person having tlio
president's warrant for tho extradition of defendant prooce led
irregularly, and may have rendered himself liable as for a per-
sonal trespass, but he deprived defendant of no right of asyliuii
in the country of his temporary domicile, for the simple rea-
son he had none secured by any public law, of which he could
be dispossessed.

The attention of the court has been called to Commonwealth
V. IMnes, 13 Eush, 700; The State v. Vanderpool, 16 Vol. C.
L. N., 31, and other analogous cases, upon which great stress
is laid, as holding principles it is insisted ought to control tlie
present decision. These cases have been examined, and it is
found they hold the doctrine a fugitive from the justice of tho

state wlio 1
ho had \\w
tli(> terms <
cannot be
offcMisos th
was cxtrad
return to t
these cases
law, tliat t
from ano) '
who hai
upon tr^..
no treaty (
to surrend(
they have
jrrcat offer
govcrnmer
ning throu
itself to a
extraditior
named in \
obtains no
out bad fa
tion, and
reparation
letter and
conceded
weiglit of
considered
served in t
by force, c
issued by
feudant sh
luiglit be t
midor the
tliat charfj
victed of ]
contained
convicted,
larceny," i
trial of th

KER V. THE PEOPLE.

221

stiito who has been brought buck from the country to which
ho liad fleil, on a wurrant of extradition, in conl'ormity with
till' terms of Ji treaty oxistin;jf betwor^n the two governments,
cannot bo i)roc(';Mled against or tried by tlie state for any other
olTonscs than those mentioned in the treaty, and for which he
was extra(Uted, without tirst being alforded an opportunity to
return to the country whence he had boon brouglit. Some of
these cases also dcchire tlio familiar principle of international
law, that the right of one government to demand and receive
tioin anot' (^r the custody of an offender against its laws, and
who has ght an asylum in such foreign country, depends
upon tr^.. >iipulations between such governments. Where
no treaty exists, no obligation that can be insisted upon exists
to surrender criminals for trial to the government from which
tbey have Jled; but as a matter of comity between nations,
great offenders are usually surrendered on request from the
government claiming the right to try them. A principle run-
ning through this latter class of rases has much that commends
itself to a sense of justice. It is, that where a person whose
extradition has been granted for trial for a particular crime
nauiod in the extradition warrant, the demanding government
obtains no lawful right to try him for any other offenses, with-
out bad faith to the government that consented to his extradi-
tion, and for which it would have just grounds to demand
reparation. Such an act would be in violation of both the
letter and spirit of the treaty. But this doctrine, if it shall be
conceded it has for its su[)port natural justice, and even the
weight of authority, can have no application to the case being
considered. Here, the complaint is, the treaty was not ob-
served in the capture and detention of defendant. It Avas done
by force, outside of its provisions. The extradition warrant
issued by the executive of the United States demanded de-
fendant should be surrendered on a charge of larceny, that he
miglit be tried for that olfense. That is an extraditable crime
under the treaty with the government of Peru. It was on
tiiat charge he was put on trial. It is true he was not con-
victed of larccn}' as at common law, but the same indictment
contained counts for embezzlement, an olfense of which, if
convicted, the statute declares "ho shall bo deemed guilty of
larceny," upon which he was tried at the same time of the
trial of the charge of larceny, and was convicted.

222

AMERICAN CRIMINAL REPORTS.

Tliere is another reason tliat leads to tlie same conclusion
the case in hand is not within tlie rule declared in the latter
lino of decisions. It is, that defendant, as has been seen, was
not surrendered by the government of Peru under its treaty
with the United States. According to the averments in the
plea, no ell'ort was made to obtain defendant on the extra-
dition warrant, and the official authorities of Peru were not
aslced to, and never did, consent to his capture within the juris-
diction of that government. It was done by sheer force, aiul
not imder the treaty at all. That brings the case more nearly
under tlie decisions first cited, and they must be regarded as of
controlling authority.

But aside from all authority, on principle defendant has
shown no right to inimunity from prosecution for the offenses
for which he was indicted. The federal government has itself
violated no treaty with the republic of Peru. The arrest and
detention of defendant was not by any authority of the gen-
eral government, and no obligation is implied on the })art of
the federal or any state government, to the rei)ublic of Peru,
to secure defendant immunity from prosecution for any olfensc.
What Avas dor.e was done by individual wrong, precisely as
was done in E.i', parte Scott, mqjra, and 27ie St^ft>' v. Brcicxtrr,
supra. The invasion of the sovereignty of Peru, if any wrong
was done, Avas by individuals, perhaps some of them OAvingno
allegiance to the United States, and not by the federal govern-
ment. Should the government of Peru comphiin its sover-
eignty had been invaded by citizens of the United States, that
would be a question arising under international law and not
under any act of congress <n* treaty of the United States. Nor
will defendant be permitted to comj)lain that his right of iisy-
lum in Peru has been violateil, for, as before stated, he h;ul no
right of asylum, as against the crime of larceny, under the
treaty with Peru, nor any absolute right to asylum under
comity existing between nations. Whether a nation Avill sur-
render a fugitiA'e from justice that seeks with it an asylum, is
a question of national comity resting in discretion. In no view
that ciin be taken is defendant entitled to immunity from pros-
ecution on the indictment under Avhich ho Avas convicted.

Errors have l)een assigned that affect the merits of the case
on the trial, that must be considered. That defendant con-
verted to his own use large sums of monev and securities be-

KER V. THE PEOPLE.

223

longing to tho firm of Frc«ton, Kean & Co., or to other persons
in their care or custody, admits of no doubt. There is no pre-
tense he is not guilty of criminal conduct. The objections
taken to the legality of his conviction are of the most tech-
nical character.

The ])oint is made there is a variance in the pleading and the
proof. It is alleged in the indictment the funds and securities
cnibez/lod were the personal goods of David Preston, Samuel
A. Kcan and Elisha (^h'liy, — a copartnership under the name
of Treston, Kean & Co., — and the insistence is, the lirm, in
law, was composed of David Preston, Samuel A. Kean and
James Payne, with Elisha Gray as special partner. Certified
copies from the record and files of the county clerk's office
show the formation of a limited partnership, pursuant to tho
provisions of the statute, and that the firm was at one time
composed of David Preston, Samuel A. Kean and James Payne,
as general partners, with Elisha Gray as special partner.
That was in May, ISSl. The oral testimony given shows that
in Xovember, 18S1, the special partnership ceased, and since
then the firm, as a matter of fact, has been composed of David
Preston, Samuel A. Kean and Elisha Gray. The partnership
articles of ^lay, 1881, wore made a matter of record, but it
does not appear there were any partnership articles after that
date, and it is insisted it is not legal to show by oral evidence,
as was done, that Payne ceased to be a partner in November,
1881. The objection taken rests on section 12, chapter 84, of
the Revised Statutes of 1874, which provides no dissoluti(jn of
a limited partnership shall take place, except by operation
of law, before the time si)eci(ied in tho certificate made a mat-
ter of record, unless a notice of such dissolution is also re-
corded in tlie same registry, and other ])rovisions of the statute
complied with. The time for the duration of the partnership
under tlie articles of May, 1881, had not ex[)ired in 2s'oveud)er,
1881, when an agreement was made between the pai'tners that
Payne sliould cease to be a partner, and Gi'ay should become
a j^eneral partner. The firm name continued as it was, but
no notice of the change of the persons composing the firm
was made a matter of record, nor was any other public notice
given, as the statute reciuires shall be given. On account of
the non-com] diance with the statute in tliis regard, it is said

224

AMEiaCAN CRIMINxVL REPORTS.

the firm should be regarded as still being composed cf the
same persons as composed it under tlie articles of May, 1881.
That may be true as to creditors and ])erson8 dealing with
the firm without actual notice, but as between the partnera
themselves, Payne had no interest whatever in the firm assets
after the agreement he should cease to bo a partner. Ii is
suilicient, under the law^ of this state, that the property is
alleged in the indictment to belong to the persons w^ho in fact
own it, or have a special interest in it. That was done in tliis
case, and there is no variance between the proof and the allega-
tions of the indictment in this respect.

It is insisted the evidence shows a cumulation of offenses, and
for that reason it was error in the court to deny defendant's
motion to compel the prosecution to elect upon what alleged
act of larceny or embezzlement a conviction would be asked.
The court, by its ruling, submitted all the evidence touching
the embezzlement of funds and securities by defendant, to the
jury, and it is not perceived how it could properly have done
otherwise. Embezzlement is a crime defined by statute, and
it was entirely competent for the legislature to declare what
acts would constitute the crime, and fix the measure of punish-
ment. One element that enters into the statutory definition
of embezzlement is the fiduciary or confidential rflation.
Such relations afford the amplest opportunity to misappropri-
ate money, funds and securities, and often present great diffi-
culty in proving exactly when and how^ it was done. This is
especially true with regard to clerks and confidential agents in
banks, or otlier corporations or firms doing a large business,
and who are intrusted, in wliole or in part, with tlic care or
custody of funds, securities and property belonging to banks or
other corporations, or to a coi)artnership. It is difficult, in
such cases, if at all ])ossible, to prove with certainty when or
how the embezzlement was efTccted. It is, of course, done
with a view to avoid detection, and the confidential relations
existing ward off snsj)ici(m. Embezzlement may, and most
often does, consist of many acts done in a sei'ies of years, and
the fact at last disclosed that the emjiloyer's money and funds
are embezzled is the crinu? against which the statute is leveled.
In such cases, should the jM'osccution l)e {'ompelled to elect it
would claim a conviction for only one of the mitny acts of the

series tli
if a con^
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Vol

KER v. THE PEOPLE.

225

scries tluit constitute the corpus delicti, it Avould be doubtful
if a conviction could be had, under sections 75 and 76 of the
Criminal Code, against a clei'k in a bank or other corpora
lion, or a copartnership, although the accused might be con-
ceded to be guilty of embezzling large sums of money in the
aggregate. It might be otherwise or ditferent, under section
7-i of the Criminal Code, where distinct sums of money or
articles of personal property are or may be delivered to the
accused on different occasions wide apart. Such distinct acts
might very readily bo susceptible of direct proof, for the act
of delivery implies actual knowledge in some one who could
be a witness. But no such opportunity is afforded to make
direct proof as to acts done, under sections 75 and 76, de-
fining embezzlement. The bodv of the crime consists of manv
acts done by virtue of the confidential relations existing be-
tween the employer and the employee, with funds, moneys
or securities over which tlie servant is given care or custody,
in whole or in part, by virtue of his employment. The sepa-
rate acts may not be susceptible of direct proof, but the ag-
gregate result is, and that is embezzlement. To avoid the
(liiHculty, no doubt, that might be encountered in making
proof in sucli cases, it is provided by statute (section 82 of
the Criminal Code), in the ])rosecution for the offense of em-
bezzling, fraudulently converting to one's own use, or fraud-
ulently taking or secreting with intent so to embezzle and
convert, the bullion, money, notes, bank-notes, checks, drafts,
bills of exchange or other security for money, by a cashier
or other officer, clerk or agent of such person, bank, incorpo-
rated com])any, or corporation or copartnership, it shall be
sufficient to allege, generally, in the indictment, an embezzle-
ment, fraudulent conversion or taking, Avith such intent, funds
of such person, bank, incorporated company or copartnershii).
to a certain value or amount, without specifying any particu-
lars of such embezzlement. Indeed, in the very nature of the
crime, it would be impracticable in most v?;ises to do more.
Tiie case being considered shows, in a marked degree, the
necessity for the rule provided by statute, otherwise it would
bo difficult to make the proof and the allegations of the in-
dictment correspond. On the trial the same liberal rule for
the detection and punishment of persons guilty of misconduct,
Vol. IV — 15

226

AMERICAN CRIMINAL REPORTS.

by reason of their confidential relations with their cniployor,
l)revails, for it is provided in the same section of tlie Criminal
Code, evidence may be given of any such embezzlement, f i aiul-
ident conversion or taking, with such intent ; and it sliall be
sufficient to maintain the charge in the indictment if it is
proved that any bullion, money, note, bank-note, check, draft,
bill of exchange, or other security for money, of such person,
bank, incorporated company or copartnership, of whatever
value or amount, Avas fraudulently embezzled, converted or
taken, with such intent, by such cashier, or other officer, clerk,
agent or servant. Under this rule, which is certainly a Avise
one, it was proper the court should permit all the evidence of
what defendant did by reason of his confidential relations with
the banking firm whoso clerk he was to go to the jury, as was
done, and if the jury found, from the whole evidence, any funds
or securities for money had been embezzled or fraudulently
converted to his own use by defendant, it was sufficient to
maintain the charge of embezzlement as that crime is defined
in the seventy-fifth and seventy -sixth sections of the Criminal
Code. Any other rule would render it exceedingly difficult
to secure a conviction under either of these sections of the
statute. The view talcen by the defense of this statute is too
narrow and technical to be adopted. It has a broader mean-
ing, and, when coi-i-ectly read, it will embrace all wrongful
conduct by confidential dorks, agents or servants, and leave
no opportunity for escape from just punishment on mei'c tech-
nical objections not alFecting tho guilt or innocence of the
party accused. Tho cases of Krihs v. The People, 82 111., 425,
and Goodhue v. The People, 0-t id., 3T, cited by the defense,
were prosecutions for eml)ozzlcment under other sections of
tho Criminal Code, and illustrate no phase of the case being
considered. There was no error in the court refusing to
require the prosecution to elect for what particular act of em-
bezzlement a conviction would bo asked.

The last ground of objection is, tho verdict is without evi-
dence, and against the law. Ordinarily, whether there is
evidence to warrant a conviction is a question for the jury, the
court taking cai-e always to see that no manifest injustice is
done, With that view the evidence has been considered. It
is seen the testimony of other witnesses, taken in connection

care,'

KER V. THE PEOPLE.

227

with defendant's letter to the banking firm, written on the eve
of his departure, with the schedule attached of securities and
money embezzled, constitutes ample proof of the corpus delicti.
It would answer no good purpose to enter upon an analysis of
the evidence, — it is sulficient to state the conclusion reached.
But Avhether the verdict is contrary to law is a question for
the court, and that has been fully considered. The objection
in this regard goes to the extent that, admitting all the evi-
dence tends to prove, it does not constitute embezzlement,
under the seventy-fifth section, or any other section, of the
Criminal Code. The argument on this branch of the case is
based on a misconstruction of that section of the Criminal Code
defining the crime of embezzlement. There are two counts in
the indictment that charge defendant with embezzlement. On
examination it Avill be seen they are both substantially in the
language of the statute, and tliat is all the law requires. In
the first count it is charged defendant embezzled securities for
money, gold coin and other funds and property of Preston,
Kean & Co., "then and thei^e intrusted" to defendant; and in
the second count it is charged defendant, being then and there
a clerk in the employ of Preston, Kean & Co., fraudulently and
feloniously did, without then and there having the consent of
such iirm, embezzle and fraudulently convert to his OAvn use a
large auKnmt of the personal good^, funds and money, — all of
which is described with sufficient ])articularity, — wliich per-
sonal goods, money and funds " then and there came to the
possession" of defendant " by virtue of such employment." It
will be observed the seventy -fifth section of the statute, under
which the second count in the indictment Avas eA'idently framed,
nuikes it an offense for a person occupying such confidential
relations to embezzle property of his eniployer, or that of
another that comes to his possession or under his care, or to
secrete the same Avitli intent to do so, by " viz'tue of his em])loy-
inont" Avith the owner or owners. The Avords "under his
care," found in the seventy-fifth section of the statute, are not
used in this second count of the indictment, and it is contended
the proof fails to show the funds and property alleged to have
been embezzled were ever in the possession of defendant by vir-
tue of his employment, and for that reason it is said he is not
fiuilty under this c>unt. The Avord "care," as used in the

228

AMERICAN CRIMINAL REPORTS.

statute, is the e;iuivalont of " custo:ly," and may mean "charge,"
" safe-keeping," '• preservation," '• security," and it would seem
it was in that sense it was used in the statute. " Possess io)i,''^
as used in the same section, has perhaps a slightly different and
broader meaning than the word " care," but it may also mean
'• to keep," " to take or seize hold," " to hold or occupy," as the
owner of property would or might do. It matters little whether
one or botli words were used in the indictment. A close read-
ing of the testimony will show tlie funds embezzled were quite
as much in the possession of defendant as under his care. It is
idle to say, in view of the relations defendant sustained to the
banking firm, as disclosed by the testimony, that the funds and
securities in the vaults were not in possession of defendant and
other pereons employed about the bank, and who had access to
such funds and securities, for one purpose or another. If tlie
indictment cannot be maintained on the ground the funds and
securities embezzled were in the possession of defendant, as tliat
term is used in the statute, by virtue of his employment, it
could not had it been alleged they were under his care, or had
it been charged they came both to his possession and under
his care by virtue of his employment ; and the case would be
presented where^ a clerk converted to his own use $14,000 of
his employer's money and securities, and yet guilty of no
crime, within the meaning of this section of the statute. So
narrow a construction as that insisted upon would render nuga-
tory this section of the statute which defines embezzlement by
clerks and confidential agents.

It seems to be claimed as to the money, bonds and property
alleged to have been embezzled of his employers, the taking of
them out of their vaults by defendant was larceny at common
law, and therefore couhl not be embezzlement, under the sev-
enty-fifth section of the Criminal Code. No such subtle rea-
soning as that will satisfy the common understanding. It is
not denied that defendant converted to his own use large sums
of money and securities belonging to the bank while he was in
its employ as a clerk, and that such funds did in some way
come to his possession. How did he come to get possession of
such funds and securities for money, if it were not by virtue of
his employment? Had he not been in the employ of this
banking house he could have had no access to thoir vaults. No

KER V. THE PEOPLE.

229

attempt will be made to ascertain defendant's c::act relation
with the bank. It is enough to know his position, whatever it
was, gave him access, for some purposes at least, to the vaults
wiiere the funds and securities were kept, and that brought the
funds and securities embezzled into his possession, or, Avhat is
really the same thing, under his care, in a measure, by virtue
of employment. It was simply by virtue of his employment,
and not otherwise, that he got possession of his employers'
niouoy and securities, and converted the same to his own use,
and that is embezzlement, under the seventy-fifth section of
the Criminal Code. It is that for which he was indicted and
convicted, and it is the offense defined by the statute.

It is to l)e observed the statute of this state defining the
(lime of embezzlement is much more comprehensive than any
Kn<>]ish statutes on the same subject that we have examined,
and especially that section which defines embezzlement by a
clerk or confidential agent who converts to his own use funds
belonging to his emi)loyer which may come to his possession
or under his care by virtue of his employment, and the decis-
ions of the English courts, construing their own statutes, do
not in any Avay assist to a correct understanding of the stat-
utes of this state on the same subject. Much of what is said
hy text-writers to which the attention of the court has been
called was said Avith reference to English statutes, which are
niatei'ially ditfei'ent from that section of the statute of this
state under which defendant was indicted. On account of the
dissimilarity of the statutes, it has not been thought necessary
to remark upon English .embezzlement statutes, nor upon the
decisions of English courts construing them. Decisions have
boon rendered by courts of some of our sister states construing
statutes substantially like section 75 of the Criminal Code
of this state, that make the embezzlement of money or per-
sonal goods larceny, among Avhich are 27ic l*eople v. Slwf-
man, 10 AWmd., 299; T/ie l\opU v. JMfon, 15 id., 581, and
Loicenthal v. IVic People, 32 Ala., 589. So much of the reason-
ing in the opinions in the cases cited as is apjdicable to the
present decision may be read as being in harmony Avith the
views expressed in this opinicm.

Xo error affecting the merits of the case appearing in the
record, the judgment is affirmed. Judgment affirmed.

230

AMERICAN CRIMINAL REPORTS.

Commonwealth v. Moore.

False pretense : Promise ■

(99 Pa. St., 570.)

— Indictment — Constructive larceny — Gen-
eral verdict.

1. False tuetense— Promise to perform some act in the future.—

A false pretense, to be within the statute, must be the assertion of an
existing fact, not a promise to perform some act in the future.

2. Indictment. — Tlie particular act alleged in the indictment was the pro-

curing *i the prosecutor's indorsement of the defendant's promissory
note, and the false pretense chai-ged consisted in the defendant repre-
senting to the pi-osecutor that he would use the note so indorsed to take
up and cancel another note of the same amount then about maturing,
and uiKJn wliicli the prosecutor was liable as indorser, and for no other
purpose, and the indictment charged that the defendant, instead of
uyiiig it for this purpose, as he pretended he would, used the same for liis
own private purpose. Held, that the indictment did not set out an bi-
dictable false pretense under the statute.

8. Constructive larceny. — By proviso of section 111 of the act of March
31, 1800 (P. L., 410), it is provided " that if, upon the trial of any person
indicted for such a misdemeanor (false pretenses), it shall be proved that
he obtained the jjroiierty in question in such manner as to amount in
law to lai"ceny, he shall not, by reason thereof, be entitled to be acquit tod
of such misdemeanor," etc. Held, that the distinction between tlio
offenses of constructive larceny and cheating by fabe pretenses is ckarly
defined, and as neither of the counts in the indictment would sustain a
charge of larceny, the defendant could not be convicted of that oireiise.

4. General verdict op guilty. — A general verdict of guilty, ui)on an
indictment, is a findmg only of the facts sufficiently pleaded.

Certiorari to the court of quarter sessions of Dchiwiu-e
county. Indictment of llobert M. More for cheating by false
pretenses. Plea, not guilty.

V. Gilpin liohlnsoH, district attorney, for the commonwealth.
E. II. Hall, for the defendant in error.

Mr. Justice Paxson delivered the opinion of the court Feb-
ruary 27, 1882.

The only question presented by this record is, whether tlio
indictment sets forth an indictable offense. It contains two
counts, in each of which the defendant below is charged with
cheating by false pretenses. The particular act alleged was
the procuring of the prosecutor's indorsement of the defend-
ant's promissory note, and the false pretense charged consisted

COMMONWEALTH V. MOORE.

231

in his representing to the prosecutor that he would use the
note so indorsed to take up and cancel another note of the
same amount then about maturing, and upon which the prose-
cutor Avas liable as indorser. In other words, the note was
ji'iven in renewal of another note of like amount, and the in-
dictnient charges that the defendant, instead of using it for
this purpose, as he promised to do, procured it to be discounted,
and used a portion of the proceeds for other purposes.

A false pretense, to be wutliin the statute, must be the asser-
tion of an existing fact, not a promise to perform some act in
the future. The man who asserts that he is the owner of a
house states a fact, and one that is calculated to give him a
credit. But a mere failure to keep a pro:iiise is another and
very different affair. That occurs whenever a man fails to pay
his note.

It is true Chief Justice Gibson doubted, in Commomcealth v.
Bio'dlch, 2 Barr, at page 104, whether every naked lie by
wliich a credit has been gained is not a false pretense within
the statute. This doubt has run its course, and has long since
ccastsl to disturb the criminal law of the state. There was
notliiiig in Commomcealth v. Biirdlch to suggest such doubt,
as the deroiuhint had wilfully misrepresented that he had a
capital of $8,000 in right of his wife, while, in all the cases
cited therein, there was a misrepresentation as to existing
facts, by means whereof a credit was obtained. The decisions
upon tills subject are uniform, and it would be an affectation of
learning to cite the cases. Many of them may be found in the
foot-note to Purdon.

In the case in hand, there was no assertion of an existing
fact. Nor was there anything done by which even a credit
was given. The credit had been obtained when the original
note was indorsed ; the pi'esent note was indorsed in lieu of
and for the ])urpose of taking up the original ; the failure to
use it for such purpose was certainly a dishonest act on the
part of the defendant, but we do not think it punishable under
the statute defining false pretenses.

It was urged, however, that, if it was not cheating by false
pretenses under the statute, it was constructive larceny, and
therefore within the proviso of section 111 of the act of 31st
starch, 1860 (P. L., 410), which is as follows : " Provided, always,

232

AMERICAN CRIMINAL REPORTS.

that if, upon the trial of any person indicted for such a mis-
demeanor (false pretenses), it shall be proved that he obtained
the property in question in such manner as to amount in law
to larceny, ho shall not, by reason thereof, be entitled to be
acquittetl of such misdemeanor; and no person tried for such
misdemeanor shall be liable to bo afterwards prosecuted for
larceny upon the same facts."

The fourth assignment of error avers that "The learned
court erred in not holding that the facts set forth in the indict-
ment, and proved on the trial, showed that the defendant ob-
tained the pro|)erty in question in such manner as in law would
amount to larceny, and in not giving judgment for the com-
monwealth," etc.

AVti do not think it necessary to discuss the line of cases
cited in the able and interesting argument of the learned dis-
trict attorney, detining the distinction between the offenses of
cheating by false pretenses, an<l constructive larceny. AVliile
the distinction is a nice one, it is, nevertheless, clearly defined.
The difficulty upon this head is not in the law, but in the appli-
cation of the law to the facts of a particular case. We are
not called upon to pursue this inquiry in tiio present instance.
It requires but a moment's reflection to see tluit we could not
reverse the court below upon this ground. How can we, as an
appellate court, say whether it was proved upon the trial be-
low that the defendant obtained the property in question in
such nuinner as to amount in law to larceny, when not one
word of the evidence is before us? IJut, it is said, the jury hav-
ing convicted the defendants of the ofreuse of cheating by false
pretenses, we must assume that the facts proved amounted to
larcenv. This does not follow. A general verdict of Lniiltv
upon the indictment is a finding only of the facts sufficiently
pleaded. Neither of the counts would sustain a charge of
larceny. The first count contains no averment that Horace P.
Green, the prosecutor, was, or ever had been, the owner of the
note in question, and if never the owner, it could not have been
stolen from him. The second count was evidently intended to
cover both offenses, but such criminal pleading is rarely a success,
and certainly is not so in this case. It contains an averment
at the close, that the said note was " then and there the prop-
erty of the said Horace P. Green." Unfortunately for this

COMMONWEALTH v. MOORE.

233

averment, the prior portions of the same count show the f.act
distinctly that tlie note in question was the note of the defend-
ant, drawn by him in favor of the prosecutor, and by the
latter indorsed for the accommodation of the defendant and
handed back to him. It was, therefore, the property of the
defendant and not of the prosecutor. The secontl count con-
tradicts itself upon the facts, and the finding- of the jury is
wliolly insufficient to enable us to say the facts proved upon
the trial amounted to larceny.

We are, therefore, of opinion that the learned judge of the
court below committed no error in arresting the judgment, and

ins ruling must be

Affirmed.

Note.— Obtaining money under false pretenses is not sustained by proof
that, by the false pretense alleged, he procured the satisfiution of his indebt-
edness to another, though sufficient to sustain an action by the defrauded
party against him for money lent. The money must have been actually, and
not merely impliedly or constructively obtained, and must have come into
the (Icfeni hint's possession. Jamison v. The State, 37 Ark., 445.

An information which charges in substance that on November 5, 1883, at
the city of La Crosse, tlie defendant falsely pretended to one Frank Thayer
tliat he was a contra(;tor, engaged in the business of teaming at Stevens
Point, in this state, and desired to employ teamsters to work for him at that
])liR'e during the following winter; tiiat he made certain other false pre-
tenses, specifled in the information, to Thayer, to satisfy the latter of the
truth of such statements, and i)roposed to employ Thayer to go to Stevens
Point and work for him as a teamster; that thereupon Thayer engaged to
do so; that Gross then>falsely j^retended that he had not sufficient money to
pay Thayer's railroad fare to Stevens Point, and desired Thayer to advance
him a sufficient amount to jjiu-chase the necessaiy railroad ticket, and agreed
to return the money when Thayer should reach Stevens Point ; that there-
upon Thayer advanced him $8 for that purpose. The information specific-
ally alleges that each and all such pretenses were false, to the knowledge
of the defendant, and were so made with intent to defraud ; but that
Tliayer lielieved them to be true and advanced the money on the faith of
them. This information undoubtedly charges a criminal offense under sec-
tion 4423, R. S. This is perfectly obvious from a perusal of the informa-
tion, and no discussion can make it plainer. State v. Gross, 21 N. W. R.
(Wis.), 803.

In State v. Foolcs, 21 N. W. R. (Iowa), 561, it is held that the representa-
tion of a party wlio borrowed money, that his brother was to ai'rive with
money, coupled with a promise to use it in payment of the sum borrowed,
amounts to a prt^tense that he had the money, and may be alleged in the
indictment and i)roved on the trial.

To support a conviction it need not appear that the false pretenses were

234

AMERICAN CRIi'INAL REPORTS.

the only inducement for giving credit or delivering property to the aocnsod.
It is sufficient, if they had such effect, that without their influence upon tlio
mind of the party defrauded, he would not have given the credit.

If the false pretenses are made with the design of deceiving, and thoreliy
obtaining credit or property, and have that effect, the guilty party cannot
escape on the ground of the weak credulity of his victim.

State v. Mundat.

(78 N. C, 460.)

False pnETENSEs: Sale of land.

An indictment for obtaining goods under false pretenses can bo maintained
against one avIio sells and conveys land for a price, by falsely represent-
ing it to bo free from incumbrances and the title thereto perfect, wlii-n
the land is in fact incumbered with a mortgage known to the defend-
ant.

Attorney-General, for the state.
Mr. G. N. Folh, for the defendant.

Ekadk, J. A. says to B., here is a tract of land which bo-
longs to me, and to which. I have a perfect title, free from in-
cumbrance; I will sell it to you and make you a perfect title
for ^300. B. says I will give it, and he does give it. It turns
out that A. had no title, or an incumbered one, and that he
knew it at the time, and intended to cheat and defraud B. out
of his money. And B. was defrauded. Is that a false pre-
tense indictable in A. ? The defendant says it is not, because
false pretense is akin to larceny, and that land is not the subject
of larceny, and that neither land or any transaction conveying
land is the subject of false pretense. And for this, State v.
Burrows, 11 Ired., 477, is cited.

In that case the defendant had by a false pretense induced
the prosecutor to convey to him twenty acres of land, and the
charge was '* to cheat and defraud the prosecutor of twenty
acres of land." It was held that to obtain land by false pi'c-
tense was ^ fraud, but that it was not indictable under the
statute which embraced only such personalities as were the
subjects of larceny.

How does that affect this case? Here is no charge of ob-

taining li
false i)ret(

It is su/
tion, and '
may bo w
punished
indictable
not indici
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Wo wei
and his bi
other alio;
called to i
ment is n(

Tiiere ii
tilied, to ti
Htate V. P

Per Cu

Note.— Y
falsely and \
bfloiifjs to 1
he will w.r, 1
!ij?aii>' him
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lu uii iiidi
|ii'operi pa

Toe lain
Stankij, 01

When it
tenses, it is
proof of pa
The State v

Wlien, or
horse repres
for propert;
not the ho
he obtained
the indictni
e(jual in va
the Charlei
had the rep
the party ii
should be r

STATE V. MUNDAY.

taining land by a false pretense, but of obtaining money by
false pretense, and surely money is the subject of larceny.

It is suggested that title to land is often an abstruse ques-
tion, and that one who is not a lawyer, and indeed one who is,
may be innocently mistaken about it, and therefore may be
punished for an innocent act. Not at all. K miHtake is not
intlictable. K ^retcme is not indictable. A. fahe j^retense is
not indictable. It must be a false pretense with intent to
cheat and defraud, and which does cheat and defraud.

We were not favored with an argument for the defendant,
luul his brief refers only to State v. Butwows. If there is any
otiier allegcKl defect in the indictment, our attention was not
called to it, and w^c have discovered none, although the indict-
ment is not very well framed.

There is error iti the arrest of judgment. This will be cer-
tified, to the end tliat there may bo judgment upon the verdict.
Htate V. r /lifer, 05 N. C, 321.

Per Curiam. Judgment reversed.

Note. — Wliero, upon an excliange of personal property, one of the parties
falsely and fraudulent! j' pretends that the property which he is parting with
bt.'I(jii^s to hiuisolf and is unincumbered, and at the same time afHrms that
lie will warii' ' H against all incumbrances, an indiciment may be sustained
i^'aii liim, 11 ilin fal^c pretense, and not the waiTanty, wiis the induce-
\i liieh opuratfMl upon the other party to make the exchange. State v,

,ir, ;W ^ic, 40S 'oin. v. Lincoln, 11 Allen, 233.

lu an indictmeui for such an offense, it is not necessary to aver that the
)>iopei' parted with by the defendant was of any value. Id.

To I lain a trade by false pretenses comes within the statute. State v.
Stmhu, 01 Me., 157.

When it is alleged goods v :c obtained by several specified false pre-
tenses, it is not necessary to prove the whole of the pretenses charged ; but
proof of part thereof, and that the goods were obtained thereby, is sufficient.
The State v. Mills, 17 Me., 211.

When, on the trial of an indictment, it was proved that the owner of a
horse represented to another at his horse, which he offered in exchange
for property of the other, waw called the Charley, when he knew that it was
not the horse called by that name, and that by such false representation
he obtained the property of the other person in exchange, it was held that
the indictment was sustained, although the horse said to be the Charley was
ecjual in value to the property received in exchange, and as good a horse as
the Charley, The court say: "The horse called the C/mr?ej/ might have
had the reputation of possessing qualities which rendered it desirable for
tlie party injured to become the owner of him. ... If the construction
should be narrowed to coses which might be guarded against by common

'2M

AMERICAN CRIMINAL REPORTS.

lu-iulence, lap woak and imbecile, the usual victims of these pretenses, would
be left unprotecteil." The State v. Mills, 17 Me., 211.

It is as criminal to defraud the unwary as the wary. Johnson v. The
State, 30 Ark., 242.

If the party deceived by the false pretenses is proved to have been un-
acquainted with the kind of property passed upon him, it is proper for a
jury to consider that fact in determining the quo animo of the party
accused. Cowan, v. The People, 14 111., 348.

It matters not whether the goods were obtained immediately by the false
pretense, or mediately by a contract, to which the false pretense induced
the prosecutor to coiisent, provided there be a casual relation between the
contract and the false pretense. Wharton's C. L., 8th ed., sec. 1180.

Where two are indicted for obtaining money under false pretenses, evi-
dence that one of them, with the knowledge, approbation, concurrence and
direction of the other, made the false pretenses charged, warrants the con-
viction of both. Wharton's C. L., 8th ed., sec. 1171.

State of Nevada v. District Court.

(ICNev., 76.)
Fine and impkisonment : Costs — Certiorari.

1. Fine and imprisonment — Costs — Judgment for. — Relator was con-

Aictod of an assault. The court imi>osed a fine of $500, taxed the costs
at !{!300.50, and ordered relator to be imprisoned, ass by statute provided,
for the fine. Hchi, that section 46 of the act concerning crimes and
jiunishment (I Comp. L., 2352) authorized the imj)osition of the line,
and section 074 of the criminal practice act (id., 2290) authorized the
judgment for costs.

2. JiDGMENT— How enforced.— Relator could be imprisoned for the line,

The judgment for costs can be enforced only by execution.

3. Certiorari — Leoauty of costs not reviewable. — If the court erred

in allowing any costs that were not taxable against the I'ehuor, it was
not an excess of jurisdiction, and its action, in tliis resi)ect, cannot be
reviewed upon certiorari.

Ca'tiorari before the Supreme Court.
Tlie facts appear in the opinion.

C. S. Vari((/i, for rehitor.

M. A. JIurj>h]/, attorney-general, for respondent.

By the Court, ITawley, J.

Kelator contends that the district court exceeded its juris-
diction in rendering the following Judgment: "Defendant,

STATE OF NEVADA v. DISTRICT COURT.

237

J. J. Quinn, having been duly convicted of the crime of an
assault, it is hereby ordered, adjudged and decreed that the
said J. .T. Quinn do pay a fine of 8''>00, gold coin, and costs of
tliis action, amounting to $300.50, making in all $800.50, gold
coin; and it is furtlier ordered that the defendant be confined
in tlie common jail of "Washoe county, Nevada, one day for
cacli two dollars of said fine, so long as the whole, or any part
thereof, sliall remain unpaid."

From the views we entertain of this case, it is unnecessary
to decide the question, argued by relator's counsel, whether
tlie amendment to section 1 of the act in relation to fines
(Stat. 1S()7, 44), as made in tlie amended act (Stat, 1809, 9G), is
unconstitutional or not. There are other sections of the stat-
ute, against wliich no objections have been urged, that gave
the court authority to render the judgment. Section 46 of the
act concerning ci'imes and punishments (1 Comp. L., 2352)
authorized the imposition of the fine, and section G74 of the
criminal practice act (id., 2200) autliorized the judgment for
costs. Tlio imprisonment of relator is only for the fine. He
couhl not be imprisoned for the cost. Const., art. 1, sec. 14;
Thomjhson v. State, 10 Ind., 510. The judgment for costs can
only be enforced and collected in the same manner " as costs
in civil cases," that is, by execution.

It is claimed that the court exceeded its jurisdiction in ren-
dering judgment for the costs, because no cost bill was regu-
larly made out and filed, and because " a large proportion of
tlie amount adjudged as costs . . . was for fees not allowed
by law."

Although it would be a proper, and perhaps the better, prac-
tice to require the prosecution to make out a regular cost bill
in the same nuinner as is provided in civil cases, yet there is
no provision of the criminal practice act requiring such a course
to bo pursued, and in the absence of any statute regulating
this uuitter, we think the court would have the right to deter-
mine the amount of costs, as it seems to have done in this
case, from an examination of the fees charged by the ro-
s])ective officers.

The petition sets out, in detail, the fees allowed to the several
officers which are claimed to l)e illegal. It does not appear
that any motion was made in the court below to correct any

238

AMERICAN CRIMINAL REPORTS.

of those alleged irregularities. "We are of opinion that these
questions cannot be reviewed upon certiorari.

The question of the imposition of costs antl the amount to
be allowed was a proper matter for the court to consider. It
had jurisdiction to determine Avhat items of costs should bo
taxed. If any error Avas made it could have been I'omodied
by a proper motion in the district court. Relator was eniitlod
to have his day in court and to make any objections to the
judgment for costs, or to the allowance of any illegal fees.
The fact that no cost bill was regularly filed did not deprive
him of that right. If the court erred in allowing any costs
that were not taxable against tlic relator, it was not an excess
of jurisdiction, and its action in this respect cannot be reviewed
upon certiorari. In re Wixom, 12 Nev., 219, and authorities
there cited; Petty v. Connty Court, 45 Cal., 21r0.

The writ must be dismissed. It is so ordered.

IIerkon v. The Co^imonwealth.
(79 Ky., 38.)
Fine and isiprisonment : Verdict.

1. ALTEIlN'ATIVr: PUNISHMENT — FINE AND IMPRISONMENT, OR BOTH.— Wlicn

a Btatute provides an alternative punishment for an offense, and further
provides that the jiiiy, in rendering .1 verdiet of guilty, shall " fix the
degree of punishment to he inflicted, unless the same he jixed hy law,''
the jury must be instructed and required to fix tho kind and extent of
the punishment within tlie limits prescribed by the law.

2. General verdict of guilty. — It was error for the court to receive n

general verdict of " guilty as charged in the indictment," and assess a
line thereon.

Appeal from Daviess Cii'cuit Court.

W. W. Sweeney, for appellant.

/*. ir. Ilardin, attorney-goneral, for appellee.

Judge IIakois delivered the opinion of the court.

It is provided by section 0, art. 1, ch. 47 of the General Stat-
utes, that the penalty for setting up, exhibiting or keojiing faro
banks shall be a fine of $500 and costs, and imprisonment until

HEREON V. THE COMMONWEALTH.

239

the same are paid, or imprisonment not more than one year,
or both such line and imprisonment, etc.

The indictment was for a violation of this section, and upon
tlie trial the jury, by their verdict, found the appellant " guilt}'
us charged in the indictment."

This verdict was received, and judgment rendered thereon
by the court for $500 and costs, and declaring the appellant
infamous, and incapable of holding any office of honor, trust
or profit in this commonwealth, and forever disqualified from
exercising the right of suffrage. To the reception of the ver-
dict and rendition of the judgment the ap|)ellant objected and
excepted.

By section 258 of the Criminal Code it is made the duty of
the jury, in rendering verdicts of guilty, to " fix the degree of
l)iinishmcnt to be inflicted, unless the same he fixed hrj law.^^

This section means that if the law lixes the punishment,
leaving no room for discretion on the part of the jury as to its
kind or extent, then the law does not require them to fix the
degree of punishment in their verdict.

l>ut where an alternative or indefinite punishment is de-
nounced by law for a given offense, there the jury must be
instructed, allowed and required to fix the kind and extent of
the punishment within the limits prescribed by the law.

It will be observed at once that if the jury had been directed
to fix the punishment in this case, they might have imprisoned
the appellant without the fine which the court assessed without
the imprisonment. In this class of cases, the punishment is
not fixed by law, and the coui't erred in receiving tlic verdict
and fixing the degree of appellant's punishment.

The judgment is reversed and cause remanded, with direc-
tions to set aside the verdict and award a new trial.

Note.— In tho case of Milton v. The State, 45 Ala,, 50, the court says:
" Section 37.17 of tlio Revised Code requires tho jury to fix and determine
the amount of the fine in prosecutions by indictment. When they omit to
iini)08o tt fine for an offense, whicli, in addition, may be puuislied by im-
priKonniont or hard lal)or for the county, by returning a verdict of guilty
niorcly, tho power to fine cannot bo exercised by the court. Tlie defendant,
by iipiJOiUing from the county court, manifested his desire to claim all the
benefits to be derived from the trial by jury. Among these were the de-
cision by them, whether he would be fined ut all or not, and the amount."

240

AMERICAN CRIMINAL REPORTS.

The People v. D'Aroencour.

(95 N. Y., 624.)

FohuEKY : Indietment — Evidence — Foreign corporations — Practice

1. Incorporation maybe shown by indirect evidence.— Upon the tri;il

of an indictment, charging forgery in the second degree, in the makinj;
and engraving of a plate in the form and similitude of a note of a hank
incorporated in HaAana, under the laws of Spain, a witness on belialf
of the prosecution testified that he had been at the bank in Havana ami
saw business carried on there; tliat the bank issued notes which were
received as money ; that he saw the articles of association, and from them,
and what he sjiw in a newspaper, the official organ of tlie government,
he believed the bank wa.s incorporated under the laws of Spain. An
engraver, connected with the American Bank Note Company, also testi-
fied that he engraved the plates from which the genuine notes were
printed, and that they were then in the vaults of that company. Held.
that the evidence was sufficient to establish the legal existence of the
bank.

2. Civil practice act not applicable.— The provisions of the Code of

Civil Procedure, making certified copies of the records of foreign coun-
tries evidence, and prescribing the manner of authentication, are not
applicable.

3. The indictment cluu-ged that the note so alleged to have lieen forged was

"for the payment of Mty centavon." Held, that it was not necessary
to define the meaning of the word centavos.

4. Under tlie statute defining forgery in the second degree, the making and

engi'aving of an unfinished plate constitute the offense.

5. Want of authority of defendant to make the plate.— Testimony

that the genuine plates of the bank were engraved and retained liy tin-
Bank Note Company, with the testimony of the agent of the bank in
this country that no one, except said company, had been authorized ti)
do any engi'aving for the bank, was sufiicient to establish prima facie
that the defendant was not authorized to make the plate.

6. Not necessary to allege intent to defraud. — As the offen.se charged

was committed before the Penal Cotle went into effect, it was not essen-
tial to charge in the indictment an intent on the part of defendant to
defraud some individual or corporation.

7. Waiver. — Assuming that the provisions of the Penal Cotle, defining

forgery in the second degree, were applicable, as the Code of Criminal
Procedure requires such question to be raised by motion before or at tlie
time defendant was called for judgment, by failing so to present it the
right to object was waived, and defendant could not avail himself of it
upon appeal.

8. Supreme court may grant new trial, although no exceptions

were taken below. — The power conferred upon the supreme court by
the Code of Criminal Procedure (§ 527, as amended by chap. 306, Laws of
1882), on appeal in a criminal action, to grant a new trial where tlio

THE PEOPLE V. D'ARGENCOUR.

241

judgment is against evidence or law, or where justice requires it,
althougli no exceptions were taken in the court below, is discretionary,
and where it docs 'not appear that the discretion has been abused, the
decision of tliat court is not reviewable.

Appeal from judgment of the general term of the supremo
court, in the first judicial department, entered upon an order
made March 7, 1884, which affirmed a judgment of the court
of general sessions of the peace for the city and county of
'^ew York, entered upon a verdict convicting defendant of the
crime of forgery in the second degree. '

Miller, J. The defendant was indicted and convicted for
the crime of forgery in the second degree, on the first count
contained in the indictment. Tliis charged that the defendant
made and engraved, and caused and procured to be made and
engraved, a ])late in the form and similitude of a promissory
note, issued by a bank at Havana, in the island of Cuba, for
the payment of fifty ccnfavos, said bank being a bank incor-
porated under the laws of the kingdom of S])ain, without the
authority of said bank, and in violation of the statutes of this
state.

Tlie counsel for the appellant insists that the court erred in
refusing to advise the jury to acquit, on the ground that there
was no legal evidence oifcred by the people that the alleged
l)ank was incorporated under the laws of the kingdom of
Spain.

Upon the trial a witness was introduced and sworn on be-
half of the people, who testified that he was a banker in K'ow
York city ; that he had been in the bank named in the alleged
forged note ; that the bank issued notes which were received
as money ; that his firm were the agents of said bank in the
city of N^cw York; that when he was in this bnnk at Havana
he saw banking business carried on. He further testified that
the said bank was incorporated under the laws of Spain ; that
he saw the articles of incorporation in a book Avhich Avas in the
court room on the day of the trial ; that from what he saw
there, and also from what he saw in the official organ, the paper
of the Spanish government, he believed it to be so ; that this
official paper was published b}' the government and only con-
tains official news, the chief laws, and any change in the ad-
Vol. IV — 10

242

AMERICAN CRIMNAL REPORTS.

ministration that interests the public. The fact of the bank
being incorporated was also proved by the engraver connected
with the American Bank Note Company ; that it had engraved
the plates from which the genuine notes of the bank were
printed, and Avhich plates were then in the vaults of said com-
pany.

We think that this evidence was suiRcient to show the ex-
istence of the bank without producing the laAV to establish the
fact that the bank had been incorporated, and the act of in-
corporation, and that there was no error in the refusal of the
court to advise the jury as requested. The rule has long been
established in this state that it is not necessary, on an indict-
ment for forgery of bonk-notes, to prove by direct evidence
the incorporation of the bank, and that testimony of the most
general character is sufficient for such a purpose. In People v.
Davis, 21 Wend,, 309, it was held, on an indictment for having
in possession, Avith intent to pass, bank-notes purporting to liave
been issued by a banking corporation of a state other than
that of Xew York, that it was not necessary to show that
there was in fact such a corporation in existence; at all events
proof of the most general character of its existence Avould be
sufficient. The same rule is applicable here, and the proof in-
troduced AA^as clearly sufficient to establish the legal existence
of the bank Avithin the authority cited. Anyotlier or diiferent
rule AA'Ould cause great difficulty on a trial of this dosciiption,
and A'ery greatly interfere Avith the administration of justice in
such cases. The general practice has been, in cases of this
character, to produce general evidence as to the incorporation
of the bank upon Avhich the alleged forgery Avas committed.
Such being the rule in this state, it Avould seem to be unneces-
sary to examine Avhether the same or a different rule exists clse-
Avhere. The case of People v. Peahody, 25 Wend., 472, cited by
the appellant's counsel, is not adverse to the rule laid down in
People V. Davis, supra, as that Avas a case Avhere an intent was
charged to defraud the bank, and it is there laid down that to
constitute the offense of forgery, in counterfeiting the notes of
a bank, it is not necessary that such bank, as the notes purport
to have been issued by, should haA'e a legal existence; it is
enough that the notes purport to haA'e been issued by a cor-
poration ^r company duly author' zed to issue notes.

THE PEOPLE V. D'ARGENCOUB.

243

The provisions of the Code of Civil Procedure (§§ 950-958
and 942) have no application to an indictment for coiinterfeit-
in^' bank-notes. The rule in civil cases in regard to proof of
tliis character is different, and the proof of the existence of
tlic bank upon which the forgery was committed was entirely
sufficient in the case at bar.

It is further insisted that the court erred in refusing to ad-
vise the jury to acquit upon the ground that the indictment
docs not set forth any instrument Avhich purports to be a pecun-
iary obligation of the bank. Tliis point relates to the allega-
tion in tlie indictment tliat the note, alleged to have been made
and engraved, was for tlxe payment of " fifty centavos,-^ and the
claim is that the terms employed do not show, of themselves,
tliat crntovos are money, or tliat tlie alleged promise involved
any pecuniary obligation to pay on the part of the bank. Tlie
charge in the indictment which is referred to is for making and
engraving, and causing and procuring to be made and engraved,
a plate in the form and similitude of a promissory note, in
violation of the statute (3 E. S. (7th ed.), 2488, 30 and 31), and
it was not necessary, to sustain the allegation, to define the
meaning of the word referred to. It is of no importance
\vh;;thcr an explanation was given to the Avord ccnfavos or not.
If that word had not been engraved upon the plate, the en-
graving and making of the plate unfinished would have been
in violation of the statute, and the indictment was clearly good
without defining or attempting to give a definition to the word
reiitavos.

The appellant's counsel relies upon the case of Sanahrla v.
People, 24 Ilun, 270, but that case is entirely different from
the one at bar. The indictment there was for attempting to
forge an instrument purporting to be a pecuniary obligation of
the empire of Brazil, which was set forth in the Portuguese
language with an English translation, which did not define
what was meant by the terms there used for money in the
Portuguese language, and it was held that as the term used
was not money of this country, and as the court could not take
judicial notice that it was a coin at all, it did not appear that
the instrument involved any pecuniary demand or obligation
upon the part of the empire of Brazil, and that the indict-
ment was insufficient. It will be observed that the charge re-

214

AMERICAN CRDIINAL REPORTS.

luted to the forging of an instrument which created a pecuniary
obligation, and sulficient did not appear upon the face of the
indictment to, show that any such obligation was forged, and
thus no crime was alleged. The allegation here is entirely
difTeront, and a crime would be made out if the engraving had
been but partially completed, and hence the case cited is not
applicuble.

Xor was any error committed by the court in refusing to
advise the jury to acquit upon the ground that there was no
evidence showing the want of authority on the part of de-
fendant to make the plate. The evidence of such want of
authority, we think, was sufficiently established by the agent
of the bank in this country, who testified that no one save tlie
IJank Xote Company had been authorized through him to do
any engraving for the bank, and the lithographer whose com-
pany had the genuine plates in its possession. The proof was
positive that plates had been manufactured for the bank by the
American Bank Note Company, who retained possession of
the same, and the agent's testimony, therefore, tends to show
that the defendant had no autliority for any such purpose. In
view of this testimony', it is not probable that any other per-
son was authorized to engrave plates for the bank, and it de-
volved upon the defendant to establish to the contrary if such
was the fact. The people were not bound, in view of tlio proof
given, to show a negative, and the evidence introduced by the
defendant, for the piu-pose of establishing authority, was not,
of itself, sufficient for that purpose. As the case stood it was
for the jury to determine whether a want of authority was
established, and it cannot, as a matter of law, be held that
there was a failure of the prosecution in this respect.

It is further objected that the indictment Avas fatally defect-
ive in not charging an intent to defraud some individual or
corporation. The indictment charged an offense in violation
of the provisions of sections 30 anrl ol of tlie "Revised Statutes,
sujyra. There is nothing in these provisions which requires
that there should be an intent to defraud any individual or cor-
poration. The offense was committed in September, 18S2, be-
fore the Penal Code went into effect, and hence the charge made
in the indictment must be in accordance with the provisions of
the statute cited, and, therefore, it was not necessary to allege

THE PEOPLE V. D'ARGENCOUR.

245

any such intent. But aside from this view of the question pre-
sented, and assuming that the provisions of section 511 of the
Penal Code are applicable, it is a sutKcient answer to the point
urged to say that tlio cpiestion was not raised so as to be avail-
able to the defendant. Section 4()9 of the Code of Criininal
Procedure required a motion to be made for that purpose before
or at the time when the defendant was called for judgment.
This was not done, but a motion was made in arrest of judg-
ment and for a new trial, tlie grounds of which were con lined
to tlie exceptions talcen at the trial, and to the judge's cliarge,
and did not, tlierefore, include this alleged defect. By failing
to present the question the defendant waived the riglit to ob-
ject tliat tlie indictment was defective for want of an averment
of an intent to defraud. The provisions of section 527 of the
Code of Criminal Procedure do not aid the defendant, as tlio
power conferred upon the supreme court to grant a new trial
when tlie verdict is against the weight of evidence, or against
law, or when justice requires a new trial, whether any excep-
tion shall have been taken or not in the court below, is a dis-
cretionary one, and as it cannot be said that the discretion has
been abused by the general term of the suprcniio court, the
decision is not reviewable upon appeal to tliis court.

It is also insisted that there was no proof of an intent (in
the part of the defendant to defraud. The question of intent
was one for the jury. Although the plate was not entirely
complete, yet it was sutticiently so to evince that it was
intended for the printing of notes of the description of those is-
sued by the bank named thereon. This is shown by the descrip-
tion given by one of the witnesses upon the trial. It conforms
to similar parts of a gen nine plate. The question of defendant's
good faith was for the jur}-, and in view of the evidence it can-
not be said that there Avas no ground for claiming that the
act of the defendant was without any intent to defraud or
commit a crime in violation of the statute.

The judgment should be affirmed.

All concur.

Jxiclgment affirmed.

246

AMERICAN CRIMINAL REPORTS.

United States v. Cakll.

(103 U.S., Oil.)

Forgery : Language of statute.

SciENTEn MUST BE ALLEGED. — An indictment on section 5431 of the Re-
\iaed Statutes, alleging, in words of the statute, that the defendant felo-
niously, and with intent to defraud, did pass, utter and publish a falsely
male, forged, counterfeited and altered obligation of the United States,
must further allege that the defendant knew it to be false, forged, coun-
terfeited and altered, or it is insufficient, even after verdict.

Certificate of Division in Opinion between the Judges of the
Circuit Court of the United States for the Southern District of
New York.

The Solicitor-General, for the United States.
Mr. William C. Roberta, for the defendant.

Mr. Justice Gkay, after stating the case, delivered the opinion
of the court.

In an indictment upon a statute, it is not suificiont to set
forth the offense in the woi'ds of the statute, unless those words
of thcuiaelvcs, fully, directly and expressly, without any uncer-
tainty or ambiguity, set forth all tlie elements necessary to
constitute the offense intended to be punished; and the fact
that the statute in question, read in the light of the common
law, and of other statutes on the like matter, enables the court
to infer the intent of the legislature, does not dispense with
the necessity of alleging in the indictment all the facts neces-
sary to bring the case within that intent. United Stales v.
Cruilcshaiilc, 92 U. S., 542; United States v. Slmmonfi, 9(5 id.,
3G0; Commonioealth 'V. C//^o/yZ, 8 Cush. (Mass.), 215; Common-
wealth V. Bean, 11 id., 414; Commonwealth v. Bean, 14 Gray
(Mass.), 52 ; Commonwealth v. Filburn, 119 Mass., 297.

The language of the statute on which this indictment is
founded includes the case of every person who, with intent to
defraud, utters any forged obligation of the United States. But
the offense at which it is aimed is similar to the common law
offense of uttering a forged or counterfeit bill. In this case,
as in that, knowledge that the instrument is forged and coun-
terfeited is essential to make out the crime ; and an uttering,
with intent to defraud, of an instrument in fact counterfeit,

DANIEL V. STATE.

247

but sii Imposed by the defendant to be genuine, though Avithin
the words of the statute, would not be within its meaning and
object.

Tliis indictment, by omitting the allegation contained in the
indictnicut in T/ie United States v. Howell, 11 "Wall., 432, and
ill all ai>i)rovcd precedents, that the defendant knew the instru-
ment which ho uttered to be false, forged and counterfeit, fails
to chiirgo him with any crime. The omission is of matter of
substance and no', a "defect or imperfection in matter of form
only,'' within the meaning of section 1025 of the Eevised Stat-
utes. By the settled rules of criminal pleading, and the author-
ities above cited, therefore, the question of the suilicicncy of

tlic indictment must be

Answered in the negative.

Daniel et al. v. State.

(61 Ala., 4.)

Fraudulent packing or cotton: Indictment— Technical terms.

Not neckssauy to show concealment of substance mixed with the
COTTON. — A penal statute, which provides that "any person who
frauilulently packs or Imles any cotton by plating, or otherwise," is vio-
lated when jwrsonfl, who gin cotton for toll, with intent to defraud the
owner or the purchaser thereof, mix sand or other substances with the
cotton ; nor is it necessary to show a concealment of the sand or other
substances in order to make out the offense.

Indictment — Generic or technical terms — Words generally under-
stood AMONG THE PEOPLE. — Where a statute creating an offense de-
clares that it may be committed by certain specified acts or means, "or
otherwise," the acts "otherwise" or different from those specified must
be alleged in such a manner as to enable the court to determine from
the indictment whether or not they constitute an offense.

Same. — In alleging the acts assumed to be criminal, they should be set
forth in unambiguous words, understood by court and jury and by the
people generally ; not in slang words or vulgarisms, or words used in a
technical sense in some particular employment or business, but in
words belonging to the plain and proper language of the community.

Appeal from the Circuit Court of Barbour.

J). If. Seals, for appellants.

JI. C. ToinpJc'ms, attorney-general, for appellee.

248

A3IERICAN CRIMINAL REPORTS.

Manning, J. The statute (sec. 4398 of the Code of 1S7G) de-
nouncing a penalty against "any person wl") fraudulently
juicks or bales any cotton by plating, or otherwise," is un-
doubtedly violated when persons who gin cotton for toll,
with intent to defraud the owner of seed-cotton sent to them
to be ginned or packed, or to defraud a purchaser thereof, mix
sand or other worthless foreign substances with the cotton
when ginned, in the bales into which it is packed. It is not
necessary, in order to nuike out the offense, to show that the
sand is put into the interior of the bale and concealed by sur-
rounding or plating it with clean cotton ; nor does it matter
whether the sand is put into the cotton while in the gin-house,
or being carried out to the press, or at the press when packed
or about to be packed into bales. The charges of the circuit
judge are not inconsistent witli these views, and were not
erroneous; nor did he err in refusing to give to the jury the
charges 2, 3 and 3J that were asked on behalf of defendants.

About the indictment, we have had some diiliculty. It
charges that appellants "did fraudulently jnick or bale one
bale of lint cotton, the i)roi)erty of Hester Ann Jones, by
plating or otherwise, to wit, by fttaul-jta/'l'aifj,'^ etc.

When a statute creatiu": an t>trense declares that it may be
committed by certain si)ecilied acts or means, " or otherwise,"
the acts otherwise or different from those speeiJled, and which
are to be put in evidence, must be so described or alleged in
the indictment that the court shall be able to see whether or
not they constitute the offense. Darmer v. The State, 54 Ala.,
127. If, in the latter of such alternative averments, the acts or
means by which the offense is supposed to have been committed
are not mentioned, — it may turn out that the grand jury, in
finding the indictment, and the petit jury, in their venlict sus-
taining it, have imputed to certain acts a character of crim-
inality Avhich does not belong to them in the e^'es of the law,
and upon which the judge would not bo justified in passing
sentence against the accused.

It follows, of course, that in alleging the acts assumed to bo
criminal, they should be set forth in unambiguous Avords, un-
derstood by court and jury and by people generally ; not in
slang Avords or vulgarisms, or Avords used in a technical sense
in some peculiar employment or business, but in Avords belong-

mg or

DICKEY V. THE STATE.

249

ing to the plain and proper language of the community. "We
have hesitated over the question whether the expression "sand-
packing " is not of a technical character, and as such not gener-
ally known in popuhir use. But considering how generally the
peoi)le of this state are concerned in the raising of cotton, and
in pre[)aring it for nnirket, and in the sale and purchase of it,
we tliink the meaning of " sand-packing" has become so gen-
erally understood that wo cannot say the indictment is had
for ambiguity. It would have been better to have alleged that
the fraudulent packing of the cotton was done by intermix-
ing or putting sand with the cotton in the bale, with the in-
tent, etc.

Solicitors should use more thought and care in preparing the
brief indictments which are authorized by our statutes.

Let the judgment of the circuit court be alhrmed.

Note. — In the grave and f oimal accusation of a grand jury, by which a
person is put on trial for lii:i liberty or life, things which arc the subject of
an alleged ollense should bo called or set forth by names or words wliich
properly designate or describe them. " Greenbacks " is but a niclniame,
originally, or slang word, derived from the color of the engi'aving on the
backs of the currency so denominated, and not either the legal designation
or a proper description of the things alleged to have been feloniously taken.
The fact that the word has, from its conveniency, come into common use,
does not make it by itself, without comiection with something else indicat-
ing the notes called by that name, a projier denomination for them in an
indictment. Wculey v. The State, Gl Ala., 282.

DicKET V. The State.

(08 Ala., 508.)

GAMiNa: Ilifjlncay — Public place — Jurisdiction over navigable stream.

1. Gamixo — Highway — Naviqable stream not.— A navigable stream is
not a hiijlnvaij within the meaning of the statute against gaming (Coile,
sec. 4207). >

' Suction 4207, Code of Alabama, provides : " Any person who plays at any
game with cards, dice, or any device or substitute for either cards or dice,
at any tavern, inn, store-liouso for retailing sijirituous liquors, or house or
place where spirituous liquors are retailed, sold or given away; or in any
public house, highway or other public place, or any outhouse where people
resort, must, on conviction, bo fined," etc.

250

AMERICAN CRIMINAL REPORTS.

2. Sajie — Public place.— Playing a game of cards in a ferry boat, which

carried passengers across a public licensed ferry, is a " public place," al-
though the boat was not that day engaged in cai'rying passengers by
reaijon of an overflow in the river, and a person standing on the bank
of the river could not see the game going on.

3. Jurisdiction over navigable stream. — The playing having been in

the middle of the river dividing two counties, the courts of either county
had jurisiliction of the offense under the statutes.

Appeal from County Court of Madison.
Hon. W^illiam Richardson.

Tried before the

II. C. Tomjjhlns, attorney-general, for the state.

SoMERviLLE, J. The general charge given by the court in
this case asserts several distinct legal propositions, some of
which are certainly correct. The exception reserved is to tlio
whole charge, and not to any particular part of it whicli is
specified as being obnoxious to objection. Such exceptions
have frequently been coiidemned by this court as defective,
and they Avill not, therefore, be considered, except in cases
wliere evxry pi'oposition announced in the general cliar/j;e is er-
roneous. South and XodhAla. 11. It. Co. v. SuIUvan, 5!) Ala.,
272; Gr<n/ v. State, 03 Ala., 00.

The indictment in this case cliarges the defendant with Inlay-
ing at a game with cards, in one of the places proliibited by sec-
tion -1207 of the code; and the form of indictment used is llio
one prescribed in section -IS24 for card jilaying at public places.
Code 1870, p. 994, form Xo. 27. The playing is proved tt) luivc
taken place in a ferry boat, which carried passengers across
a public licensed ferry over Paint-Eock river, Avhicii is a naviga-
ble stream, constituting the boundary line between the coun-
ties of IMarshall and IMadison. The ferry boat was at the
time about sixty yards above the ferry, in the middle of the
river, and about half a mile from either bank. The river be-
ing very high by reason of an overflow, and it being Sunday,
no passengers were being transported on that day over the
ferry.

We think that, under this state of facts, the defendant was
properly convicted. It is true, as held by the court in 6'A<w y.
The State, 30 Ala., 529, that a navigable stream is not a hlgh-
toay within the meaning of the above statute, and the court

DICKEY V. THE STATE.

251

below so charged the jury. But it may become a "public
place" by force of circumstances. In Coleman v. The State,
13 Ala., 002, it was held that a steamboat carrying- passengers
and freight on a navigable river was a public place. So, like-
Avise, a neighborhood road has been held to be a public place.
Mills V. The State, 20 Ala., 80. And it is manifest that the rea-
son upon which these cases are based would embrace a fci'ry-
boat plying across a public licensed ferry.

Xor does it matter that the playing was at the time unseen
by any observers other than the participants. It is not the
fact of being seen, but the liahility to be seen, which is con-
templated by the statute. No matter Avhat degree of scci'ecy
may be ])reserved, or how few the number of spectators present,
if the place comes within the statutory prohibition, any game
at curds there is in violation of law, and indictable. Windham
V. State, 2G Ala., 09.

The playing having been in the middle of the river dividing
tlie counties of Marshall and Madison, the courts of Madison
clearly had jurisdiction of the offense, under the provisions of
the statute. Code 1870, § 4030; mil v. State, 43 Ala., 335.

A proper regard for tliese well-settled legal principles re-
quired the refusal of the charges requested to be given by the
appellant, and the court below ruled correctly in refusing
them. Its judgment is, therefore, alHrmed.

Note. — Jurisdiction over navigable streams.— In The State v, Mullen, 35
Iowa, 1"J9, the boat, whose keo[)er was indicted for keeping a house of ill-
famo, tamo up the Mississippi river, during high water, and for several
months prior to the linding of the indictment ?iad been resting on the ground
on tilt! east side of an island, east of the main ';hannel of the river — the
county of the state in which the indictment was found being west of the
river. It was run in for repairs, and was left agrouu'l by the receding of
the waters, though at times it was afloat. At the tune of trial it was
iiRround, but tlune was ice on both sides of it. When the water is high it
ovcrllows the island. A portion of tlie channel of the river, from one hun-
ihed and lifty to three hundred feet in widtli, flows on the cas^. or Illinois
sitle of the island, and, in a good stage of water, boats passed on that side.
When the water is low, there is no current on the east side of the island,
although there is water. The trial court instructed the jury "that if tho
boat or water-craft mentioned in the indictment, and described by tho name
■gun-boat,' was constructed for tho purpose of floating it from pcint to
j)oint upon the Mississippi river, and for tho jiurpose of using it as a place
of resort for prostitution and lewdness, and if said boat has been kept and
used for that purpose upon said Slisaissippi river, between the Iowa Mid

252

AMERICAN CRIMINAL REPORTS.

Ulinois shores, and north of the southern boundary line of the state, and
south of the north Hne of ]\Iontrose townsliip (being the boundary line of
that part of the county within wliich jurors were to be drawn) in this county,
at any time within three years preceding the finding and presentation of the
indictment, then the court cliargos you tliat the owners thereof, and those
aiding and abetting in tlie commission of the offense, are amenable to the
laws of this state, and the fact that such boat or water-craft is at tlie present
time on the east side of the main cliamiel of the Mississippi river, resting
temporarily in the rear of the island, in the river, because the water has re-
ceded from it, or for purposes of rei)tiir, will not take it out of the jurisdic-
tion of tlie court over it and over its owners and inmates," which instruc-
tion was held to be correct. See, also, Mahler v. Transjiovtution Co., 35 N.
Y., 352.

Allen v. The State.

(61 Miss., 027.)
Grant) juror: Intoxication of — Counsel — Right of, to consult u'itncss.

1. Intoxication of grand juror.— An indictment will not be alnited or

quashed because one or more of the grand jury were intoxicated wliilo
it was under consideration.

2. Same — Control of court over. — A grand jury Is not under the con-

trol of tlie court, lilio a petit jury is, wliile considering of their verdict,
and should not be so judged.

3. Witnesses — Under the rule — Ekhit of counsel to consult.— It is

error in a criminal casc^ for tlio tlie court to refuse to allow counsel for
the accused to consult his witnesses, for no other reason than that tliey
have been jjut under tlie rule.

Chalmers, J., delivered the opinion of the court.

It lias never been held, here or elsewhere, so far as we cim
find, that an indictment could be abated oi* quashed because
one or more of the jury were intoxicated whiki it was under
consideration by that body. The graiul jury is not under the
o'uidance and control of the court, like a j)etit jury is, wliilo
considering- of their verdict, and should not be so judged. Tin;
plea in abatement was properly demurred to.

The court refused to let counsel for the accused consult witli
his own witnesses upon the ground that they were under the;
rule, and for no other reason.

That this was error is settled hv WhJfes C<ti^c, .^)2 IVfiss., 21*1

licvei'sed and rcmaiuhd.

EX PARTE CARLL.

253

Ex Pakte Carll.

(lOG U. S., 521.)

Habeas corpus : Certiorari.

Tlic reviewing power of the supreme court of the United States in a crim-
inal case, on a writ of habeas corpus, is restricted to the consideration
and determinatiou ut the question Avliether the court whicli passed sen-
tence upon the prisoner liad jurisdiction to try him for tlie offense for
which he was indicted and to pass sentence of imprisonment upon Inm.
Tliere is no general power vested in tlie .^-upreme court to review tho
judgment; <"'' t!ie inferior courts of the United States in criminal cases,
whetlier by t iie vise of tlic writ of habeas corjjws or otlierwise.

Petition for a writ of Juibeas corjytis and a certiorari.

Mr. Cliief Justice Waite delivered the opinion of the court.

We liave had occasion to saj*^ at the present term, in Ex- i^arte
C»?'«;«5, that " we have no general power to review the judg-
ments of the inferior courts of the United States in criminal
cases, b}' the use of the writ of Juiheas corjnis or otherwise.
Our jurisdiction is limited to the single question of the power
of the court to commit the prisoner for the act of Avliich he has
been couvicted." This ndc is well settled. Ex parte Laufje,
18 AVall., It;;!; Ex parte Hoiclancl, 104 U. S., C(M.

Tlie grounds of the present application, as stated in the pe-
tition, are that tlie circuit court had no juivisdiction to try tho
prisoner for the olfense of which he has been convicted and to
cominit him to prison therefor, because —

1. The instruments described in the indictment, and charged
to liave been forged, show on their face tliat tliey are wot
bonils or ol)ligations of the United States, and, even if genuine,
possessed no validity; and

2. It was conceded on the trial that the instruments set forth
in the indictment were genuine registered bonds, and that the
forgery complained of consisted in erasing the name of tho
original payee and substituting that of tiie prisoner.

All tho bonds described in the indictment, except that in tho
third count, purport to be issued under tlio act of July 14, 1870,
ch. 2.j(), as amended by the act of January 20, 1871, ch. 23.
This act provides foi' an issue of bonds by the secretary of the
treasury "in such form as he ma3^ proici'ibe." Tho bonds
now in (piestion appear to be signed by the register of tho

254

AMERICAN CRIMINAL REPORTS.

treasury and not by the secretary. They also have the " im-
print and impression of the seal of the department of the treas-
ury of the United States."

In the indictment it is averred that the connterfoits were of
bonds of the United States. This is enough for the ])uri)osos
of the jurisdiction of the circuit court. Whether tlie bonds
counterfeited are in the form of those actually issued by the
secretary of the treasury under the authority of the act re-
ferred to, is a question of fact to be established on the ti-ial.
Errors committed on the trial of this issue do not deprive tlie
court of its power to imprison upon conviction, and, as has
been seen, such errors are not subject to correction here, cither
in the present form of proceeding or any otlier.

What has just been said applies equally to the instrument
described in the third count, which purports to be signed by
the acting register of the treasury. By the act of Foln-uaiy
20, 18G3, ch. 45, the president was authorized to designate some
officer in a department to perform the duties of another in case
of death, resignation, absence or sickness.

The second ground of application presents no jurir.dictional
question. The indictment charged the in'isoner with a crime
against the laws of the United States. United Stafi's v. Jlnri-
gold, 9 How., 5G0. We have nothing to do with questions aris-
ing on the evidence presented to sustain the charge.

Petition cloiicd.

Gaevey's Case.
(7 Col., 384.)

Habeas corpus: Indictment — Grades of crime — Jcojmrdi/ — Verdict —

Judgment — lictrial,

1. The ■wniT of habeas corpus.— ffafjcas cor/)?/s lies wlicretho petitioner

is coHlined under the judgment of a court entered when Buch court had
no jurisdiction.

2. GiivDES OP CRIME, — Thorc ire certain crimes, including murder, wliieh

arc arranged in gr.ades one above another, luid each higher oirciiso. or
grade of an offense, contains all that is embraced in the one next lower,
and Bometlung more. It is unnecessary that an indictment sliould
specify the name of the offense for which it ia found, providing it is in

GARVEY'S CASE.

255

all other respects sufficient. Whatever the offense alleged in the in-
dictment, there may be a conviction of any other if witliin the words
of the allegation. An indictment for murder charges likewise all the
lower gi-ades of felonious homicide, and a conviction for manslaughter
may be had upon it.

3. ISDicTJiEST — Less offense included in qreateu.— An indictment for

murder was found by the grand jury. Afterward an act of the legis-
lature was passed, without a saving clause, which rendered it illegal to
convict the accused of the crime of murder, but did not affect the law
as to the punishment foi manslaughter. Held, that, under that indict-
ment, the prisoner might be tried for the latter offense.

4. Sahe — Jeopardy. — The fact that the accused had been tried under such

iiulictment, convicted of murder, and judgment pronounced upon the
verdict, which judgment was reversed because of error in entering the
same (the law having been so modified as to forbid the judgment), will
not warrant his discharge on the ground of former jeopardy when sub-
scfiiiently tried for mansljiughter on the same indictment.

5. Sajif. — Verdict — .Iudoment — Retrial.— A verdict is the b.asis of the

judgment, and whcsn the latter is reversed because the law does not
authorize the former, both are set aside and are of no effect ; judgment
for murder being revei-sed and the cause remanded for further proceed-
ings, the court cannot, upon such verdict for murder, enter judgment
for manslaughter without a retrial of the cause. One so convicted may
be released from the penitentiary on habeas corpus, and remanded to
the custody of the sheriff to await trial.

Application for release from penitentiary on lialcas corjms.

Messrs. Wells, Smith <J& Macon, for petitioner.
D. F. IfYmy, attorney-general, for the people.

Beck, C. J. The petitioner was indicted for the murder of
one George Wolf, alleged to have been perpetrated on the 23d
(lay of May, 1 880. The indictment Avas found by the grand
jury on the l.">th day of March, 1881, on which he was tried at
tlic s])ecial November term of the district court of Arapahoe
county, 1 88 1, found "guilty of murder as charged in the indict-
ment," and sentenced to imprisonment for life in tlio state
penitentiary.

A writ of error to the judgment was prosecuted to this
court, and at the April term, 1883, wo reversed tlio judgment
nnd reiuiUHled the; cause, for the reason thu*^, after tlie commis-
sion of the oU'ensc, the legislature had so anwrnled the statute
concrniiug murder as to alter the situation of the prisoner to
his disadvantage, without a saving clause as to the repealed

256

AMERICAN CRIMINAL REPORTS.

provisions, tliui making the law ex post facto as to the case of
the petitioner.

The petition is demurred to by the attorney-general on be-
half of tlie people, and it is stipulated by counsel reprcsentino-
the respective parties, that the cause be heard upon this demur-
rer, and that the record upon the writ of error of Garvey (tlie
petitioner) v. The People, recently heard and determined in
this court, together with the judgment of the district coi rt of
Arnpahoo county, subse(piently rendered, denying the motion
to quash the indictment, and entering judgment upon the former
conviction, be considered as a part of the present petition for
writ of liaheas corpus.

Upon the return of the record in the district court, the peti-
tioner moved to quasli the indictment, upon tlie ground tliat it
was insullicient in law, as ajipcarcd from the judgment of re-
versal. The petition alleges tlitit the court denied the motion
to quash, and gave judgment on tlie same verdict, Avitliout any
furtlier trial of the prisoner, that lie be confined in the state
penitentiar}' for the term of eight 3'ears. TTj)on tliis judgment
t)ie prisoner Avas committed to the penitentiary, wliei-c lie still
remains in confinement, and to be released from which he has
sued out, from this com*t, the present writ of haheas corpus.

The judgment complained of is a judgment for man-
slaughter.

The grounds of the present npplication a]ipear to be:

First. That the condition of the law ai)p1icable to the case
of the prisoner, at and since the time of his trJMl for nvirdcr,
has been such that he could not lawfully be tried for any of-
fense charged in the indictment in question.

Second. That the action of the district court in pronouncing
judgment for manslaughter without a ti'ial by jury was with-
out jurisdiction, and therefore null and void.

Upon the first proposition, it is contended that the rejieal of
the provisions of the law of homicide, above alluded to, < jiutshed
the indictment, or left it in the same condition it would have
been if no law authorizing an indictuumt for murder had ever ex-
isted. That, if this be true, there could be no record in the district
court upon which punishment for any ofl'ensc charged in the
quashed indictment could bo inflicted. The repeal of the stat-
utory' provisio.MS had the same eiTect upon the indictment as if

GARVEY'S CASE.

257

a domurrer tliei'eto had been sustained on the ground that it
clmrged no crime. There could not be a conviction of man-
slaughter, because it was quashed in toto and not in part only.
A (lemuri'or, it is argued, would not have been sustained as to
the cliarge of murder, and overruled as to the charge of man-
slaughter involved in the allegations constituting murder, but
the in<lictment would have been quashed and the prisoner dis-
cliarged.

Much prominence is given the proposition that an indictment
or any pleading, under a statute Avhicli is repealed after the
tiling thereof, is, for all purposes, al)solutely null and void.

The act amending the Criminal (^ode was approved IVFarch
1. 1S8I ; and while it did not go into effect until after the filing
of the indictment, on the 15th day of March, 1881, still the
aniciubnent of the statute did not wholly repeal or annul the
iiulictment. The law of homicide was not repealed. Two
sections concerning the ])unishment of murder were repealed;
hut no change Avas made in the jirovisions rehiting to man-
slaughter. This is but a lower grade of the same offense, or a
constituent part of it, and necessarily committed in the ])erpe-
trntion of a murder. It is held, in this class of cases, tliat a
count, ])rf»p(M^]y framed, foi* the higher grade or offense con-
tains all the essential elements of a count for the minor offense.

In illustration of this princi])le, it was said in ('ommonwealth
)'. /[(triici/, 10 Met., 425, that an indictment for murder or
manslaugliter contains a full and technical charge of an assault
and battery.

l)Ut it is fiu'ther contcndiMl tlint the effect of the legislation
referred to was to nhollsh the offense of murder, so far as the
|i('titionor is concerned; and this being done, he could not be
convicted of manslaug]it(M\ u]>on this indiorment; for, while
manslaughter is includfd in every indictment for murder, there
was here no indictment for murder; ;md it cannot be^iid that
one crime contains another vhon there is no cimtainin.: crime,
or that an indictnumt for murder includes manslaughter, when
there is no such offense as muidcr.

It would seem to be an extravagant proposition that, as to

the petitioner, there is no such offense as murder. As stated

in Ga)'i'{'if r. 77ir /*<oj>/f\ si//>r(i, there remained unreivalcil of

the law of homicide, in a<ldition to the provisions relating to

Vol. IV— 17

25S

AMERICAN CRIMINAL REPORTS.

inanslaiightci' and its punishment, the sections defininjr tho
crime of murder, providing tho form of indictment, and iiiijios-
ing tlie death penalty upon such as should bo convicted. Tiuo,
the cliange made was such that the petitioner could not be law-
fully convicted of murder, but there existed no space of time
wherein the crime of murder was not an indictable statutory
oU'ense. The statutory definition of the crime of murder was
substantially the common law definition as given by Elackstone
and (Joke, 4 JJl, Com., 105, The same was true of the form of
the indictment under tho statute. It was substantially the
common law form.

The statutory definition of manslaughter was tho same as
defined at common law. 4 VA. Com., "IDl. The law of man-
slaughter was amended in 188.'?, but there Avas a saving clause
as to all cases pending, so that tho amendment does not alfcct
the petitioner. jS'ow, counsel for j)etitioner say : "It is ad-
mitted that in every valid indictment for murder, voluntary
manslaughter is also contained; but not in an indictment that
has been quaslicd, repealed or rendered void as to the murder
therein charged."

But the indictnu^nt, as a pleading, has never been quashed,
repealed, or rend(!red void, either by legislative action, or by
the order of any court. The fact that circumstances have
transpired since tho offense was commiit(!(l, which render the
charge of murder therein contained inapplicable to the case of
the petitioner, does not necessarily discharge him of man-
slaughter, wliich is a lower grade of the sanu? ofTense. J lis
liability to answer for the latter does not depend iilone on the
princi])lo tluit it is an included offense, but that it is cluirgcd
in the indictment as well.

We apprehend that tho true tests, in such a case, by Aviiich
to determine tho validity of the indictment are: Is tho offense
for which the convicti(m is Sf>ught included in the crime
chargisd in the indictnu^nt; and, if so, is it sulliciently alleged <

Our constitution provides that in criniinal prosecutions the
accused shall have the right to demand L o nature and cause of
the accusation against him, which is nothing nu)ro than was
recpiired by tho rules of the common law. AVo have S(!cn that
the Stat utoiy definitions of murder and manslaughter, as the
same renuiined uni-epealed after tho legislation of 1881, weri:

synonyii

fenses; i

accordin

other UK

test the 1

At cc

api^ear t

grades c

hunuin b

were tht

sec. 4(i8.

In liis

Bishop s;

called t\\

ideas,"

Certair
one abov
offense, m
next Iow(
the indict
offense, ]>
class of ci
then; nii<^
of the all
:Mr. Hi,-
offense w
elude the
"We hav
(listinctio
slaughter
which arc
murder,
homicide
must con
hij;her fr
1 I5ish.
sec. TilS.
]\rr, \M
with fchji
fact of m

(

GARVEY'S CASE.

259

synonymous with the common law definitions of the same of-
fenses; and since tlie statute requires all trials to be conducted
iiccording to the course of the common law, except where an-
other mode is pointed out in the C'l-iminal Code, Ave may safely
test the suiiiciency^ of this indictment by its principles.

At cc union law, the words "murder" and "manslaughter"
appear to have been terms emplo^'ed to designate different
o-rades of the same oflfense, viz. : The felonious killing of a
human being. All that distinguished one grade from the other
were the words "malice aforethought." Bishop, Stat. Cr.,
sec. 4r.8.

In his work on Criminal Procedure, vol. 2, sec. 570, Mr.
Bishop says: "Whether mui'der and manslaughter are to be
called two crimes, or one, is matter only of words, not of
ideas."

Certain crimes, including murder, were arranged in grades,
one above another, and each higher olfense, or grade of an
otTcnse, was said to contain all that was embraced in the one
next lower, and something more. It was not necessary that
the indictment for any olVcMise siiouhl sjiecify the name of the
offense, provided it was in other respects sullicient; and in this
dass of crimes, whatever the olfeiise alleged in the indictment,
then^ might be a conviction of any other, if within the words
of the allegation.

Mr. l>ish()|) says the indictment for the higher form of the
offense would iilmost necessarily be in such liinguage as to in-
clude the 1()W(U'; and, relV^rring to the subject of murder, says:
"We have alreadv considered what, in general terms, is the
distinction between the indictment for murder and for num-
slaiightcr ; the former merely recpiii'ing some allegations added,
which are not in the latter. In otlru' words, the indictnu'ut for
lunrdei', being founded (m the statu\ 3 which divided f(^lonious
homicide into the two degrees of n.urder and numslaughter,
must contain those statutory terms which distinguished the
hijjher from the lower." 2 IJish. (Jrim. Troe., sees. 5T<i, 540;
1 P.ish. Crim. Troc, sees. 4l(!, 417,418; 1 Eish. Crim. Law,
sec. 7!)S.

Mr. Wharton illustrates it as follows : " Thus, if A be charged
with feloniously killing J', of nuilice prepense, and all but the
fact of malice prepense be proved, A may clearly be convicted

260

AMERICAN CRIMINAL REPORTS.

of uuinsljui^hter, for the indictineiit contains all the allega-
tions essontinl to tliut cliarf,fc; A is fully apprised of the naturo
of it; the verdict enables the court to pronounce the proper
judgment, and A nuiy i)lejid his acquittal or conviction in liar
of any subsequent indictment founded on the same facts."
1 Wharton, Crim. Law, sec. 027.

In McPhermn v. The State, 29 Ark., 225, 233, the court say:
" An indictment for murder charges, also, all the lower grades
of felonious homicide, and a conviction for manslaughter may
be had u])ou it."

I^o objection has been raised as to the form of the indict-
ment in the present case, so far as the charge of murder is con-
cerned, and we feel warranted in saying that if any indictment,
in the common law form, contains all the allegations essential
to the charge of manslaughter, then the indictment in this case
is sutlicient to sustain a conviction of that olfcnse. If tlie
proposition of petitionei-'s counsel Avas to be conceded, that the
amendment of the statute abolished the crime of murder so
far as the prisoner is concerned, the force of the proposition is
expended when it is declared that he cannot be lawfully con-
victed of that grade of crime. But mu'der, as a criminal
offense, was not abolished, and being primarily charged in tlie
indictment, and the indictment being suificient in form, it fol-
lows, under the authorities cited, that the offense of man-
slaughter is substantially charged therein.

In so far as the terms descriptive of the offense, in the present
case, exceed tlie description of manslaughter, they do not
vitiate the indictment, but may be treated as surplusage. 1
Bish. Crim. Proc, sees. 478, 470.

It was held in Eecdv. The State, 8 Ind., 200, that in an indict-
ment for a liomicide, charging munlor, but defective as to that
gra<le of crime, the word "murder'' might be rejected as sui*-
plusage, and the prisoner put upon his trial for manslaughter.
The same rule was announced in JXins v. The State, 7 Biaclcl',,
20, respecting the words " with malice aforethought."

The indictment in the case at bar, though not defective in
form as to the higher offense or grade of the offense chai'ged,
charges an existing statutory grade of homicide, of which the
petitioner cannot be convicted.

But there is no force in the suggestion that, if put upon ti-ial

qnji

GARVEY'S CASE.

261

for manslaughter, and the evidence should disclose that the
killing was perpetrated with malice aforethought, there could
be no conviction of the minor olfense. This point was expressly
adjudged in Coiniiionwealth v. IFcPtke, 3 Cush., 181, Avherein
it was held that it is no defense to an indictment for man-
slaughter that the homicide therein alleged appears by the
evidence to have been committed with malice aforethought,
and was, therefore, murder. Also, in Baimett v. T/ie P(opU\
54 111., 325, in reference to the subsequent trial of the prisoner,
who had been convicted of manslaughter upon an indictment
for murder, the court say : " lie could not be convicted on this
trial for mm-der, but, a new trial having been granted ( \ the
conviction for manslaughter, he might be, and was, properly
tried again for the latter-named crime. And, although tlie
l)ioof might show that the crime was perpetrated deliberately
and with malice, still, after such acquittal, the conviction could
only be for the lower grade of crhne."

The foregoing conclusions and authorities sntficiently answer
the propositions urged in behalf of the petitioner, that, had a
domiuTcr been filed to this indictment, it must have been
quashed hi toto; that an original trial for manslaughter could
not be had thereon, and that if the prisoner had been put to
his trial for the minor ollense, and the evidence disclosed a case
of murder, he must have been discharged.

The proposition that the prisoner has been once in jeo])ardy,
and, for that reason, could not have been put upon his trial for
manslaughter, is equally fallacious. Counsel say, if the in-
dictment Avould support a conviction for numslaughter at all,
it would have done so in the first instance, and, not being con-
victed of this crime on the first trial, he cannot be ])ut in
jeo})ardy of it again. If the prisoner had been wholly accpiitted
there would be force in this assertion; but the fallacy of the
reasoning is exposed by the authority cited in its support, viz. :
1 AVharton's Criminal Law, sec. 551.

]\[r. Wharton says : " The rule is that if the prisoner could
have been legally convicted on the first indictment, upon any
evidence that might have been legally a(hluced, his acquittal on
that indictment may be successfully pleaded to a second indict-
ment; and it is immaterial whether the proper evidence were
adduced at the trial of the first indictment or not."

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(71*)t7a-4S03

262

AMERICAN CRIMINAL REPORTS.

The whole section proceeds upon the supposition that the
prisoner has been acquitted on the first indictment. The fact
here is otherwise. The prisoner was convicted, and the judg-
ment was reversed because the conviction v/as illegal.

The only other instance, mentioned in this section, as consti-
tuting a bar to further proceedings, is where there has been a
conviction on a defective indictment, followed by judgment
and a performance of the sentence. This, likewisOj is inap-
plicable to the case of the petitioner.

The cases of Shejycwd v. The People, 25 K Y., 40G, and the
IlaHumj Case, are nuiinly relied upon in support of the position
assumed, that the petitioner cannot be subjected to another trial,
but must bo unconditionally discharged upon this writ. We
agree with the attorney-general and assistant counsel foi* tlio
state, that the Ilartung Case may be clearly distinguished from
the case at bar.

Every step in the Ifartung Case, from its inception, is sliowu
to have been regular and legal. There was no error in tiio in-
dictment, verdict or judgment. Tlie conviction and judguiont
were, in all respects, valid when had and pronounced. Tlio
judgment was reversed l)ecause the legislature liad subsequently
enacted a statute Avhich forbade the execution of the death
sentence that had been pronounced. The reversal of the jiidg-
raent, therefore, was not not based upon eri'or in any of tlio
proceedings in court, but upon matter wholly dehors the recoiij.
When it is considered that the prisoner might have been exe-
cuted before the repeal of tlio law, the cause of the reversal.
and which may be termed an acci<Iental circumstance, it is hwt
rational to say that ho was once in jeopardy.

But it is .asserted that the ITaHiuuj Case was not so stron*''
for an al^soluto discharge of the accused as this case, for the
reason that all the ])r<)cpcdings there were legal, wlujreas every
step in this case was illegal, except the indictment, and that,
say counsel, was valid when found, but, by tho repeal of the
law, it became mere waste i)aper.

These conclusions are evidently based on false premises.
As before stated, the indictment was not invalidated, as a
pleading, by tho repeal of the law. And if the proceedings
attending the trial wore so grossly illegal, as alleged, liow.
upon reversal of the judgment, they would constitute a bar to

in a

mg.

GARVEY'S CASE.

263

another trial, especially in view of the provisions of our con-
stitution, we do not perceive.

The admission of the facts assumed would seem to conclu-
sively establisli the convei'se of the proposition.

Sec. 18, art. 2, of the constitution, provides as follows: .
"Nor shall any person be twice put in jeopardy for the same
offense. If the jury disagree, or if the judgment be arrested
after verdict, or if the judgment be reversed for error in law,
tlie accused shall not be deemed to have been in jeopardy."

This judgment was reversed for erroi's in law, which con-
sisted in the trial, conviction and sentence of the petitioner
for murder, whereas his offense under the law apj)licable to his
case at the time of his indictment and conviction was man-
slaughter.

The case of Shepardv. 2'he Peoj)U, stqjra, docs not seem to
have involved similar constitutional provisions.

It now only remains to inquire whether the petitioner can
bo released from tlie penitentiary upon the present writ.

Tliis inquiry is, we think, answered by divisions 1 and 7,
s:^ction 0, of the haheas corpus act. General Statutes, p. 532.

The statute provides that if it appear tliat the prisoner is in
custody by virtue of process from any court legally constituted,
lie can bo discharged only for some of the following causes :

^^Flrd. Where the court has exceeded the limit of its juris-
diction, either as to the matter, place, scene or person."

'^Seventh. Where there is no general law, nor any judg-
ment, order or decree of a court, to authorize the process, if
in a civil suit, nor any conviction, if in a criminal proceed-

ing.

We are of opinion that the court below exceeded the lim!t
of its jurisdiction, in this, that it pronounced the judgment oi
imprisonment in the penitentiary without any conviction of
the prisoner.

The result of the former trial had been wholly annulled by
this court, and the cause had been remanded for further pro-
ceedings.

It was thcivafter, according to the foregoing views, pending
in tlie district court for trial upon the charge of manslaughter.

The judgment having been reversed without any reservation,

264

AMERICAN CRIMINAL REPORTS.

and the cause remanded, the verdict of the jury fell with the
judgment, and it would seem that no more authority then re-
mained for pronouncing judgment upon such verdict, witliout
submitting the case to another jury, than existed in the first in-
stance to pronounce judgment upon the indictment witliout a
trial of the accused.

It Avas held in People ex rel. v. Whitson, 74 111., 20, that if
the judgment upon which the prisoner is held in custody is
merely erroneous, and subject to be reversed on writ of error,
he will not be discharged upon Avrit of hubetis corpus. But if
the court had no power or jurisdiction to render such judg-
ment, the j)risoner should be discharged.

Our conclusion is that the imi)risonment, under the judgment
complained of, is illegal, for the reason that the judgment of
the district court is not merely erroneous, but void, and for
that reason, and because of the non-observance of the foi'nis
of law in the proceedings of tlie district court, the petitioner
nmst be discharged from the penitentiary. But it appearing to
this court that ho stands legally indicted of a felony, the order
will be that the petitioner be discharged from the penitentiary,
and that ho bo renmnded to the custody of the sherilf of
.Vrapahoe county.

It is further ordered that said sheriff admit the petitioner to
bail upon his executing a bond in the sum of §5,000, with suffi-
cient sureties, and in form and conditioned as required by the
lidheas coipus act, said bond to be approved by the sheriff of
Arapahoe county.

Chkaney v. The State.

(80 Ai-k., 74.)

iMPpisoNMENT : Meaning thereof —^ Fine and costs — Bill of exceptions,

1. Bill op exceptions.— Unless instructions are embodied in the bill of

exceptions the supreme court cannot judge of their alleged error.

2. Imprisonment for fine and cost.— In all our penal l«>gislation the wonl

" imprisonment " means imprisonment in the county jail or Iwal ])ri8on.
unless expressed to be in the i)enitentiary ; and the statutes luoviding
for the UupriHonuient of a defendant until tho flue oud oust be paid

CHEANEY V. THE STATE.

refer to misdemeanors and not to f elonie * ; and a defendant convicted
of a felony and sentenced to the penitentiary for a fixed term, and the
payment of a fine, cannot be continued in prison after tlie expiration of
said term, by reason of the non-payment of the fine and cost, either in
the penitentiary or county jail.

Error to Pope Circuit Court. Hon. W. D. Jacoway, Circuit

Judge.

Z7. J/. 7?os6', for appellant.

English, C. J. At the November term, 1879, of the circuit
court of Franklin county, P. O. Cheaney was indicted for se-
(Uiction under a false promise of marriage.

Tlic indictment charged tluit "said P. O. Cheaney, on the
•>M\ (lay of June, 1879, in the county of Franklin, etc., being
ti single and unmarried man, unlawfully and feloniously did
obtain carnal knowledge of one Mary Head, a single and un-
married female, by virtue of a false exju-ess promise of marriage
to her previously made by the said I*. O. Cheaney, against the
peace,"' etc.

Defendant demurred to the indictment on the ground that it
did not substantially conf(n'm to the statute, and did not state
facts which constituted a public offense.

The court ov^erruied the demurrer; and on the application of
defendant the venue was changed to the circuit court of Pope
county, where the case was trieil at the March term, 1880, on
pica of not guilty, and the jury found defendant guilty and
assessed his punishment at a line of $1,000 and imprisonment in
the penitentiary for one j'^ear.

The coui't rendered judgment that the defendant be im-
prisoned in the penitentiary for one year; and that the state
recover of him the fine of $1,000 assessed by the jury, and the
costs, \\m\ that if the line and costs were not paid by the ex-
piration of his term of imprisonment, he be further imprisoned
in the penitentiary until they were paid, but that his confine-
ment for fine and costs should not exceed one day for each
two dollars thereof, etc.

After defendant was sentenced the court permitted him to
lllo a motion to sot aside the judgment and grant him a new
trial, which the court overruled, and ho took -a bill of excep-
tions and afterward brought error.

'tl RV.

K:i^

266

AMERICAN CKimNAL REPORTS.

I. The indictment was drafted under the following statute :
"Any person who shall bo convicted of obtaining carnal
knowledge of any female by virtue of any feigned or preteiuled
marriage, or of any false or feigned express promise of mar-
riage, shall, on conviction, be imprisoned not exceeding two
years in the penitentiary, and fined in any sum not exceeding
$5,000 ; but no person shall be convicted of said crime upon tlio
testimony of the female, unless the same be corroborated by
other evidence." Act of April 12, 1869 ; Gantt's Digest, sec.
1319.

The indictment alleges, in form substantially good, all tlie
material facts requisite to constitute the crime of seduction by
false express promise of marriage under the statute, and the
demurrer to it was properly overruled.

II. The material allegations of the indictment were suffi-
ciently proved by the testimony of the injured female, tak(Mi in
connection with admissions made by defendant to several
witnesses. The evidence, looking at the whole of it, docs not
make a case of rape as suggested by counsel for plaintilF in
error, but sustains the charge of seduction by false promise of

marriage.

The question of force was submitted to the jury by tlu) sixth
instruction moved for defendant, and given by the co t, wliicli
was as follows:

" If the jury believe that the defendant did obtain carnal
knowledge of the said Mary Head, but that the same was doiu;
forcibly, against the will, and contrary to the desire and con-
sent of said jMary Head, then they nmst acquit."

III. The bill of exceptions shows that eleven instructions
were moved for defendant ; that the court gave the fifth and
sixth and refused the others; then follows the statement tliat
"the court, in lieu of the instructions asked for by dofeiKl-
ant, gave the following" — but none are set out. Those in-
structions sliould have been brought upon the record by tlic
bill of exceptions, so that we could see whetlier the court
erred in giving them in lieu of such of defendant's as were
refused.

IV. On the motion of the prosecuting attorney, the court
gave six instructions, the defendant objecting to the second
only.

CHEANEY V. THE STATE.

267

In the first the court stated to the jury the offense charged,
and the second follows:

" To sustain this charge it must appear from the evidence,
first, that Jie defendant did obtain carnal knowledge of Mary
Head ; second, that ho did so by virtue of an express promise of
marriage which was false, and was made by the defendant alone
for the purpose of obtaining such carnal knowledge ; third, that
such false pi'omise was made in such manner aiul under such
circumstances as to induce said Mary Head to believe that it
was not false, but was sincere and true, and that so believing she
submitted to his embraces, when otherwise she would not have
permitted such intimacy ; fourth, these facts, if proven to the
satisfaction of the jury, satisfying their minds beyond a rea-
sonable doubt, togetlier with the further facts tliat the offense
was committed in Franklin county, etc., and at some time
within three j'cars next before the linding of the indictment,
are suificient upon which to convict the defendant."

Xo objection to this instruction has been made by counsel
here, and we see notliing in it that could bo the subject of a well-
founded o1)jecti(m on tlie pai't of the accused.

V. It was objected in the court below that the court erred
m so mucli of tlie judgment as sentenced defendant to further
imprisonment in the ])enitentiary, after the expiration of the
term of one year fixed by the verdict, for the payment of the
line and costs, at one day for each two dollars thereof, should
the same not be paid by the time the fixed period of imprison-
ment expired.

Under the Revised Statutes, before the penitentiary was es-
tablished, many felonies, as well as misdemeanors, were made
punishable by fines, etc. See Eevised Statutes, Criminal Juris-
prudence.

If, on conviction, a fine and costs were not paid, the defend-
ant was committed to jail until they were paid, but might be
released under the insolvent act; or the court or judge might
order him imprisoned for a limited time in lieu of the fine, etc.
Id., Criminal Practice, sees. 10!) and 201.

By the act of the 17th of December, 1838 (Acts of 1838,
p. 121), modifying the Penal Code to correspond with the
ostnblishmont of a penitentiary, no felony was made punish-
able by tine, but all felonies were made punishable by imprison-

268

AMERICAN CRIMINAL REPORTS.

•I

}

■

ment in the penitentiary or by death. In other words, the act
provided for no line where imprisonment in the penitentiary
was made the punishment for an offense.

So after the passage of this act it was in misdemeanors onlv
that ])ersons were subject to imprisonment in jail for lines and
costs, under the provisions of the Kevised Statutes above cited.

After the passage of the penitentiary act of 17th Decem-
ber, 1S3S, the legislature passed as many as seven acts (includ-
ing- tlie one under which plaintilf in error was indicted) providing
for the punishment of pai'ticular offenses n:uned in tliem by
both lines and imprisonment in the penitentiary. See Gantt's
Digest, pages 330, 343, 348, 351, 350, 307 and 372. But in
none of these acts except the slander act (Gantt's Digest, p. 372)
is there any provision that the person convicted shall be con-
lined in the jjenitentiar}'" until the fine be paid.

The code of practice m criminal cases which went into effect
the 1st of January, 1800, contained two sections providing lor
inij)risonment for fines. The first, under the title "Judg
ment," chap. IX, sec. 283, follows:

" If the punishment of an oirense be a fine, the judgment
may direct that the defendant be imprisoned until the line is
paid, s]iecifying, however, the extent of im})risonment, which
shall not exceed one day for each two dollars of tlie iine."
This became sec. 1001, Gantt's Digest Crim. Pro.

The second, under the title " Execution," chap. X, sec. 20!>
(of Cr. Code), follows:

'' The defendant shall not be held in confinement under the
execution for a fine, for a longer period than at the rate of (»no
day for each two dollars of the fine; but such imprisonment
shall not discliarge the fine, which thereafter can only be col-
lected by proceeding against the defendant's property. But
the provisions of this section shall not ai)ply to judgments in
city or police courts, which may be discharged by confinement
in the work-house, according to the provisions of the special
statutes regulating them." This became sec, 20U0 of Gantt's
Digest Crim. Pro.

Neither of the above sections provides, in terms, for impiis-
onment in the penitentiary for a fine; and the first clause of
the first section: "If the punishment of the offense be a
jf?n<?," and the first clause of the second section : " The defend-

CHEANEY V. THE STATE.

ant shall not bo held in confinement for a Jine,''^ indicate their
ii|)i)licati(>u to misdemeanors.

J5y act of March 25, 1871, it was provided that in all prose-
cutions in cases less than felonies, in courts of justice of the
peace, and in other inferior courts, the i)rosecutor should give
bond for costs, etc., etc. And it was further provided that :
" If the accused be convicted, the court rende^'iug the judg-
ment shall, in addition to the fine or imprisonment which it
shall impose on the person convicted, render judgment against
such person for all costs accrued in the case ; and if such costs
are not immediately paid, such convicted person shall, besides
undergoing the penalty adjudged against him, be confined in
the county jail at the rate of one day for every two dollars
adjudged against him for line and cots, and then the county
sliall pay the '^^ats of said prosecution." See Gantt's Digest,
sees. 2020-22.

On the 21th of IMarch, 1875, the following act Avas passed:

" That section nineteen hundred and ninetj'-one (1991) of
Gantt's Digest be amended so as to read : ' If the punishment
of an oirense be a fine,' the judgment shall direct that the
defendant be imprisoned until tlio line and costs are paid,
specifying, howevei*. the extent of imprisonment, which shall
not exceed one day for each dollar of the fine and costs." Acts
1S71-5, p. 270.

By act of JNfarch 10, 1877, the last act on the subject, a
person convicted of any misdemeanor or petty offense in any
of the courts of this state, and committed to jail in default of
payment of fine and costs, is . eniiired to discharge the same by
manual lal)or on public works, or be hired out until the fine
and costs be paid, at not exceeding one day for each seventy-
five cents of the fine and costs. See Acts 1877, p. 73.

In all our penal legislation, when the word imprisonment
only is used, it is understood to mean imprisonment in a county
jail or local prison, and when the legislature has intended
imprisonment in the penitentiary it has been so expressed.

After a careful review of all the statutes on the subject, our
opinion is that the court below eri'ed in so much of the judg-
ment as sentenced plaintiff in error to imprisonment in the
penitentiary until the fine and costs were paid.

So much of the judgment as is for one year's imprisonment

270

AMERICAN CRIMINAL REPORTS.

in the penitentiary as punishment, and for tlie $1,000 fine and
costs, must be aflirmed, and so much as is for imprif;oniiiont in
the penitentiary at 82 per day until the line and costs are puid
must be reversed.

If tlic legislature shall deem it good policy and just to im-
prison persons in the penitentiary for linos and costs, in sncli
felonies as fines may be imposed as part of tlio punislniiont, it
must be expressly provided for, as was specially done m the
slander act. Gantt's Digest, sec. 1551.

VI. I>ut tlie further question is pi'csented, wliether this court
will render judgment that if the line and costs be not paid by
plaintiff in error before the term of his imprisonment in the
penitentiary for the offense of which he was convicted and sen-
tenced sliall expire, ho bo delivei*ed on the expiration of tlio
term, by tlie keeper of the penitentiary, to the sheritT of Pope
county, to be there imprisoned in the county jail for lines and
costs, etc.

This cannot be done imder the act of March 10, 1877, because
that act exju'essly applies to fines and costs in misdemeanors
and petty offenses only, and not to felonies.

If we go back of that act to the act of ]\rarch 24, 1875,
above copied, we should have to direct that ho be confined
in jail for one thousand days for the line and a day for each
dollar of costs, and that in idleness and at the public ex-
pense; for that act makes no provision to put him at labor
upon public works or to hire him out for the jmyment of the
fine and costs, as does the act of ]\rarch 10, 1877.

Moreover, by the act of the 10th of March, 1877, the legis-
lature seems to have abandoned the former policy of confining
persons in jail in idleness, and at the public expense, for lines
and costs.

Under the present aspect of the legislation, we shall decline
to make any order for his confinement in the county jail for
the fines and costs, and leave the state to her remedy l)y execu-
tion against his goods and chattels, lands and tenements, if he
has or may acquire any.

The clerk of this court will make out and certify to the
keeper of the penitentiary the judgment of this court, modi-
fying the judgment of the court below, as above indicated.

STEWART V. THE STATE.

BISSKNTINO.

Eakin, J. I concur in sustaining the conviction in this case,
ami in holding void so much of the sentence as provides that
defendant shall be retained in the penitentiary until the line
bo paid.

In vioAV, also, of the slight uncertainty of the result of legis-
lation, I think it well to make no specific order for the de-
livery of the defendant to the shorilf of his county, after the
expiration of his term in the penitentiary. It is not necessary.
Tlio duties and pouers of the sheriff are prescribed hy general
provisions of the law ; no ordei's are required. I do not con-
cur in holding the act of starch iii, 1875, to be so far repealed,
by implication, that a fine imposed as a part of the punishment
ill felony can now be collected only by civil process. The act
of the lOth of March, 1877, seems to be confined to misde-
meanor, leaving the former act otherwise intact.

Stewakt v. TiiK State.

I (39 Ohio St., 152.)

Incest: Brotlicr-in-laic and suter-in-law,

A brothor-in-Iaw and sister-in-law are nearer of kin by affinity than cousins,
witliin tlu; meaning of the statute preBcribing the punishment of incest.

Motion for leave to file a petition in error to the court of
common pleas of Washington county.

Nye d; Oldham, for the motion.

J). A. //f^>///«j/.?<w;'//i, attorney-general, and Z. W. Ellenwood,
prosecuting attorney, contra.

l>y the Court. The defendant, Stanton E. Stewart, was in-
dicted for incest, the indictment charging him with having
cominitted adultery with one Etta Drake, " the said Stanton
E. Stewart and the said Etta Drake being then and there
nearer of kin, by allinity, than comiins, to wit, the said Etta
Drake being then and there the sister bv alRnitv, said relation
being commonly known as sister-in-law, of the eaid Stanton E.

272

AMERICAN CRIMINAL REPORTS.

Stewart," and tlie only qnestion presented is wliethcr tlio in-
dictment contains a sufficient statement of the rolationsliip
between the defendant av; 1 Etta Drake. It is claimed tliat the
indictment is in this respect bad: 1st, because it does not state
how the rehitionship was created, and that it still subsists; and
2d, because no relatives by affinity are nearer of kin tlian
cousins by consanguinity, tliere being no mode of comparison
between relatives by affinity and relatives by consanguinity.

The first objection to the indictment is disposed of by the
decision in the case of Nolle v. The State, 22 Ohio St., 541.

The second objection cannot be sustained. The statute pro-
scribes the punishment of persons having sexual intcrcoui-se,
who are "nearer of kin by consanguinity or affinity than
cousins, having knowledge of their relationship," and we are
of opinion that under this statute the degrees of relationsliip
by affinity are to be determined in the same manner as degrees
of relationship by consanguinity, and that a brother-in-law and
a sister-in-law are, within the meaning of this statute, nearer
of kin than cousins.

Any other construction of the statute would exclude from
its operation all relatives by affinity.

Motion overruled.

Van Houten v. State.

(46 N. J., 16.)
Indecent exposure: Intent,

1. The crime of indecent exposure is committed if a person intentionally
makes sucli exposure in the view from tlie windows of two neigliboi-
ing dwelling-liouses.

8. It is not necessary that any person should actitally see such exposure, if
it was made in a public place with the intent that it should be seen, and
persons were there who could have seen if they had looked.

On writ of error to the Essex Sessions. .

Edward M. Colic, for the plaintiff in error.
Oscar Keen, prosecutor of the pleas, for the state.

VAN HOUTEN v. STATE.

The opinion of the court was dolivered by

TJkasi.et, Chief Jttstice. This Avas an indictment charging
the defendant with indecent exposure. The criminal act al-
leged was that the defendant, in urinating, intentionally exposed
his nakedness in a public place. The transaction in question
occurred in the yard of a house which was occupied in part by
the defendant and in pait by the prosecutors. The defendant
himself, when on the stand as a witness, admitted that if he
had done the act in the place designated by the prosecutors in
their testimony, he would have ex[)osed himself to the windows
of two dwelling-houses that were then inhabited and were
close to the locus in quo. The defendant, at the trial, in his
own testimony, denied that he occupied the position in ques-
tion, and asserted that at the time of the occurrence ho had
betalc(ni himself to a place retired from observation.

If tlie state's account of this alTair was the truth, there can
be no doubt that, in a legal sense, the act complained of was
done in a public place. Accepting tluit version as the true
one, tlie defendant ex})osed himself so that he could be seen
from the wiiulows of two dwelling-houses that were within a
few feet of the place of the occurrence. If it were tlie law
that a man could lewdly expose his naked person to the in-
mates of two dwelling-houses, as was said in the case of Beg.
V. Holmes, G Cox, C. C, 21G, " this would not be a country fit
to live in if such an abominable outrage could go unpunished."

According to the law of this offense the place is a public one
if the exposure is such that it is likely to be seen by a number
of casual observers. In the case of Beg. v. Fart'ell, 9 Cox, C.
C, 440, which is an authority relied upon by the defense in
the present instance, it was declared that by an indecent ex-
posure in a place not far from a highway, the common law
otfcnse had not been committed, but the court was careful to
supplement its decision with the remark " that it is not to be
talcen that we lay down that if the prisoner was seen by one
person, but there was evidence that otiiers might have wit-
nessed the offense at the time, we would not uphold the con-
viction."

On the facts of the case, if the jury took them as stated by
the witnesses for the prosecution, the place of the alleged
Vol. IV— 18

274

AMERICAN CRBUNAL REPORTS.

olTensG was a public place, and if the jud^e had so told the
jury his charge in that respect would have been legal, and
would have comprised all that he could be required to say on
the subject. The same testimony proved that when in that
position he was seen by them to make an indecent exposure of
his person. Upon this subject the trial judge charged in these
words: "I think the true principle is, and I so instruct you,
that as a general proposition the place where the exposure is
made should be public; but that it is sufficient if the place is
not ordinarily public, but only so in consequence of persons
being temporarily assembled there; and, further, that there is
no nee;l that the exposure should be actually seen by any one,
provided that it wac made to bo seen, and those who were
there could have seen it if they had looked ; and if so made,
the place being public, it is immaterial whether the exposure
was made to one person or to many."

In my opinion this extract from the charge contains a proper
expression of the law on this general subject, but that part of
it which consists of the declaration that the delinciuont need
not be seen by any one was not germane to the case, for both
witnesses on the part of the state had unequivocally tcstifiod
that they had seen the indecent exposure in question. This
was an essential part of their statement, and it is not within
the range of possibility that the jury could have convicted the
defendant, on their testimony, of the offense charged, and at
the same time rejected their averment that they saw it. (j)n-
sequently, if the charge Avas faulty in holding that the defend-
ant was guilty, although no one actually saw the indecent
exposure made by him, an exception on that ])oint could not
avail in this Avrit of error, as such misstatement of the law
couhl not have prejudiced the defendant on the trial of the
merits of the case. But, as I have said, I do not think that,
even with respect to legal theory, there was any fallacy in the
charge in this particular.

The jury were further instructed, on the subject of ci'iniinal
purpose, in the following language : " I instruct you that the
testimony must show that the exposure was not inercly acci-
dentcal, and. in order to convict the defendant, you ought to Ik
sjitisflcd, from the testimony, that the exposure was intentional,
at such time and place, and in such manner, as to offend against

wan
consi
or an
send

STATE V. SMITH.

275

public decency ; but intent may be inferred from recklessness.
It is not necessary tliat some witness should testify that tho
defendant had said that he intended to commit the act ; you
can infer what he intended to do from what he actually did do."

This also was a correct statement of the law on this branch
of the case, and, taken in connection Avith the previous instruo-
tion above referred to, was all that could be properly required.
The defense, indeed, requested that the court should charge
tlio jury with respect to ci[^;;hteen legal propositions, Avhich
were submitted in writing, but the whole of them were prop-
erly rejected, as all the law appertaining to the matter in issuo
had been, Avith entire clearness and correctness, already ex-
pounded.

Tho judgment should bo affirmed.

State v. Smith.

(40 N. J., 49. .)

Indecent letter to female : Indictment for.

An averment in an indictment that the defendant " unlawfully, wilfully
and wantonly sent " an indecent letter to a female is not sufficient to
show an offense under a statute which makes it a misdemeanor " wil-
fully and wantonly " to send such a letter to a female, without lawful
purpose in sending the same.

On motion to quash indictment.

P. W. Sfaff(j, for the defendant.
A. D. Ca)nj}hell, for the state.

The opinion of the court was delivered by

Dixon, J. The defendant was indicted in the Bergen county
oyer and terminer, under the act to suppress the sending of
indecent communications, approved March 20, 1878. Pamph.
L, p. 211.

This act makes it a misdemeanor for any ]ierson wilfully and
wantonly to send or convey to any female, aj^ainst her will and
consent, any insulting, indecent. lascivious, disgusting, offensive
orannoying letter oi-conmiunication, without lawful purpose in
sending or conveying the same.

276

AMERICAN CRIMINAL REPORTS.

The indictment charges the defendant with unlawfully, wil-
fully and wantonly sending such a letter to R. A., a female,
against her will and consent, but does not allege that ho diil so
without lawful purpose in sending the same. For this defect
the defendant moves to quash the indictment.

As to statutory offenses the invariable rule is that every
fact mentioned in the statute as constituting the crime must be
averred in the indictment. Zahriskie v. State, 14: Vroom, (!40,

The abronce of a lawful purpose in sending the communica-
tion is undoubtedly made by the statute a necessary ingredient
of the offense, and therefore, if the indictment does not charge
it, it is insutficient. The prosecutor, conceding this, claims tliat
the requisite allegation appears in the statement that the de-
fendant unlaicfuUy sent the letter. The question, therefore, is,
whether this is necessarily an equivalent averment, for no in-
tendment can be made against the defendant.

We think that it plainly is not. The statement that the de-
fendant unlawfully sent the letter may be based upon some
idea that the mode of sending it was unlawful. It does not
necessarily indicate a want of lawful purpose in the mind of
the defendant. We therefore cannot see, on the face of the
indictment, that the grand jury were satisfied that the defend-
ant had committed the statutory misdemeanor, and for this
reason the indictment must be quashed.

State v. Graham.

, 3 Ark., 519.)

Indictment: Statnlory offense — Conatntction,

1. Indictment must allege the facts, not a conclusion of law.— An
indictment must allegu the special matter of the whole fact with 8uch
certainty that the ollense may jiulicially appear to the court. It Ls not
Bufficient to charge a conclusion of law.

8. Cuabgino offense in language of the statute.— It is sufficiont. ns
a general rule, to charge a statutory ofTense in tlio words of tlie stat-
ute ; but when a more particjular statemeiit of tlie facts is necessary to
Bet it forth with retjuisite certainty, tliey mu.st be averred.

8. Constuuction of criminal statutes. — Criminal statuttM must lio
strictly construed, and no case is brouj;ht by construction within a stat-
ute unless it is «;ompk'tely within its words.

STATE V. GR/IHAM. 277

Apjieal from Izard Circuit Court. lion. R. H. Powell, Judge.

C. B. Moore, attorney general, for appellant.
J. L. Aheniethy, for appellee.

IlARRisoy, J. The indictment did not set forth the means
by which the defendant Avas informed that Cook had com-
mitted tlie alleged offense. It merely charged a legal concli*-
sion, without setting forth the facts from which it was drawn
or inferable. An indictment siiould set forth the special mat-
ter of the whole fact with such certainty that the offense may
judicially appear to the court, and it is not enough to chargo
a conclusion of law. 1 AVhart. Crim. Law, sec. 285.

The indictment liere, it is true, follows the language of the
statute, act of February 10, 1875, "to prohibit the carrying
of side arms and other deadly weapons ; " and it is, as a general
rule, sulHcient to charge an offense created by statute in the
words of the statute ; but the rule is subject to the qualification
that where a more particular statement of facts is necessary to
sot it forth with requisite certainty, they must be averred. To
set forth the offense with sufficient certainty and deliniteness,
if the defendant were subject to indictment under the statute,
it should have b(ien charged that information of Cook's offense
had been given iiim on tlie oath of some person, or that he had
personal knowledge of it. But we are of the opinion that, as
tlio statute only s})eaks of justices of the peace, it is in its appli-
cation confined to them, and has no application to mayors of
cities and towns, and that the defendant could not be indicted
under it.

Criminal statutes are to be strictly construed, and no case is
to bo brought by construction within a statute unless it is com-
pletely within its words. Hawkins says: "No parallel case,
wliicli comes within the same mischief, shall bo construed to be
within the purview of it (the statute) unless it can be brought
within the meaning of the words." 2 Hawk. P. C, 188, see.
IG. And I'ishop says: "If a case is fully within the mischief
to be remedied, and is even of the same class, and within the
same reason as other cases enumerated, still, if not within the
words, construction will not be permitted to bring it within
the statute." IJish. Stat. Crimes, sec. 220.

The demurrer to the indictment was rightly sustained.

« Affirmed,

Ttv^

278

AMERICAN CRIMINAL REPORTS.

State v. Scaelett.

(38 Ai-k., 503.)

I^fDICTMENT: Exception in statute to be negatived.

An indictment for selling liquor within tbreo miles of Evening Shade Col-
lege must aver that the sale was not for medical purpo? 03 by a regular
practicing physician, who had made and recorded the oi&davit re-
quii-ed by the act of 26th of February, 1879.

Error to Sharp Circuit Court. Hon. E. II. Powell, Circuit
Judge.

IT. B. Ifoore, attorney-general, for plaintiff in error.
Scarlett, pro se.

IIarrisok, J. The indictment in this case is bad. It did not
negative the exception in the act, or aver that the sale of tho
ardent spirits was not for medical purposes by a regular practic-
ing physician, and who had made and recorded the allidavit prc-
Bcribod by the act. 1 Bish. Crim, Pi'oc, sees. 031, C3G; 1 Cliit.
Crim. Law, 284; Thompson v. The State, 37 Ark., 40S. As for
that reason the jmlgment must be affirmed, Ave need not con-
sider the exceptions taken by the state upon the trial.

Ajjinncd.

Note. — Where a statute defining an offense contains an excei;tit)n, in tlio
enacting clause of the statute, which is so incorporated witli tho laiigu:i^'o
defining the offense that tlie ingredients of the oftonso cannot be accuratily
and clearly described if tho exception is admitted, the rules of good pli^ad-
ing require that an indictment founded upon the statute nmst allege or.()u.','li
to show that the accused is not within the exception; but if tlie languagoof
the section defining the offense is so entirely separable from the oxtPiition
that the ingredients coni;tituting tlie ofTonse may be ac(!uratoly and clearly
defined without any referenc3 to the exception, tlie pleader may saloly omit
any such reference, as the matter contained in the exception is matter of
defense and must be shown by the accused. United States v. Cook, 17 Wal-
lace, 173. It is immaterial whether an exception or proviso bo contained in
the enacting clause or section, or be introduced in a different manner, a.s it
Is the nature of the exception or proviso, and not its lo(;aiion, whldi is
material. When, therefore, the exception or proviso is so introduced as to
constitute a part of the definition or description of the offense, it must bo
negatived. Tlie Territory v. Scott, 2 Dak., 813.

STATE V. MAGRATH.

279

State v. Maokatd.

(44 N. J., 227.)

Indictment, "tiiue bill:" Evidence — Parol not culmissible.

1. Indictment, not indorsed true bill. — An indictment will not he quashed

on the ground of its not being indorsed as a " true bill," or signed by the
foreman of the grand jury.

2. Evidence— Parol not admissible to snow resolution op cosimou

council. — Tlie defendant was a member of the common council of Cape
May, and was indicted, under the statute, for furnishing supplies which
had been paid for by such council ; to prove such payftient, the treasurer
of the city testified that he made such payment, and that the council
had, by resolution, ratified the same. Jleld, that such proof of the con-
tents of such resolution was illegal.

From the Capo May Oyer and Terminer. Motion for a no\r
trial, sent to this court for its advisory opinion.

W. E. Potter^ for the motion.
J. R. Jloagland, for the state.

The o]>inion of the court was delivered by

Beasley, Chief Justice. Before the oyer and terminer, a
motion was made to quash the indictment in this case for tho
reason that it was not indorsed with the sigiiuut:»'o of tho fore-
man of the grand jury, nor marked with tho customary for-
mula of its being a " true bill," and it was strongly pressed on
the argument before this court, that such a mode of authenti-
cation was indisi)cnsable to tho legality of the ])rocedure.

According to the ancient English methods, it may bo rea-
sonably suj)poscd that the form of authentication in ques-
tion was an essential part of criminal practice. In that sys-
tem the indorsement by the foreman was tho only certi-
lication to tho court of what the action of the grand inquest
had been in any given case, and in the absence of such certi-
fication there was nothing on the record, or in any part of
tho conduct of matters, to indicate, cither distinctly or ob-
scurely, whether a bill in a particular case had been found op
not found. The fact that a bill had been ])rosented to the
court in open session, by the grand jury, afforded no intimar
tion whatever touching the views of that body with respect to

280

AMERICAN CRIMINAL REPORTS.

it. This unavoidably resulted from the course of the proco(>(l-
ings, which were conducted in this wise: Bills, or formal accu-
sations of crime, were drawn up and presented to the grand
jury, who, after investigation, if they thought any particular
accusation groundless, indorsed upon it the word iffnoramus, or
the phrase " not found," or if the opposite opinion was enter-
tained, then the bill was indorsed with the words " a true bill,"
and such bills, some being thus certified to have been found,
and others to have been ignored, were, in a promiscuous body,
handed in by the grand jury to the court. It is manifest,
therefore, tlmt in such a state of affairs the court had notliiu""
to guide it in ascertaining the purpose of the grand inquest in
any particular instance except this indorsement upon the bill,
and it is not surprising, therefore, to find the court, as Avas tlie
case in Kiiiff v. Fovd, Yelv., 90, saying that " the indorsoniont
is parcel of the indictment, and the perfection of it." In fact,
however, it is obvious that such an indorsement was no part of
the bill, but was the extrinsic indicium that the grand Jury had
officially decided to make the accusation contained in the in-
dictment. The indorsement that the bill was a "true bill"
was the formal and sufficient certification of that essential fact,
and in the absence of such a certificate there was absolutely
nothing before the court to show such essential fact.

But although this undoul)tcdly was the settled course of the
English practice in this respect, and although, from the niituro
of such practice, the omission of an indorsement, in one of the
usual modes, upon an indictment, would have left it entirely
uncertain whether such bill had been found or not found, I do
not perceive that it was ever decided at common law that such
method of certification of the purpose of the grand jury AViis
the only admissible method. All that appears to have boon
decided is that some certificate in this respect was necessary,
and we also know that the one above described tvas the ap-
proved form in vogue. No judgment has declared that if the
finding of a bill by the grand inquest had been made to appear
in a manner equally certain with that which arises from the
usual indorsed certificate of the fact, that such an authentica-
tion would have been insufficient and invalid. The object
aimed at is, that the court should be informed, with the requi-
site certainty, that the inquisitorial body has found the accusa-

STATE V. MAOKATH.

281

tion true, but the mode of giving such information is but the
form of tlie transaction.

IJut in tliis state, as every practitioner is aware, the mode of
proceeding with respect to the particular in question is very
dilFcrent from the practice above described. In our procedures,
bills are not drawn up beforehand and presented for adoption
or rejection by the grand jury, but, to the contrary, they are
drawn subsequently to the investigation, and consequently
there arc no bills in this course of law which are marked " not
found." The result is, that all the bills which the grand jury
bring into court are such as have been found by them, and
therefore the act of presenting them to the court is a certifica-
tion that they have been oilicially found. The question thus,
then, arises whether such an authentication has not that degree
of trustworthiness that it ought to satisfy all legal require-
ments. I confess that I do not see why such an assurance as
tlie grand jury makes to the court on this subject, in our prac-
tice, should not be held to be sufficient. The bills presented
are in court openly declared by the grand jury to be the bills
which they have found, and such bills aio at the same time
htuuled to the officer of the court to be by him filed. Such a
proceeding, the court and the grand jury being thus in contact,
would seem to exclude all reasonable api)i"ehension of the in-
tervention of error or imi)OPition. It was in this mode that the
bill now before the court was brought into the oyer and ter-
miner, and it seems to me that it is putting a sti'ain upon com-
mon sense to infer that there is the least doubt that it was
duly found by the grand inquest. This being so*, I am unwill-
ing to hold that the omission of a form will vitiate the pro-
ceeding. In liool'toooiVs Case, 13 How. St. Tr., 131), Chief
Justice Holt placed the subject in a very reasonable light. He
Bays : " An indictment is not an indictment till it be foimd ; it
is only a Avriting prepared for the ease of the jury and for ex-
pedition; it is nothing till it is found, for the jury make it an
indictment by finding it; they may alter what they please, or
refuse it absolutely. And if the jury, upon examining the
witnesses, would only present a matter of fact, with time and
place, the court might cause it to bo drawn up into form, with-
out carrying it to the jury. Again, tli(M'e needs no h'tlht vera,
for that is only the jury's owning that which the court has

( ■ ■

ii ■

282

AMERICAN CRIMINAL REPORTS.

prepared for them." The grand jury in the present instance
having owned the bill as their linding, I think it was by that
means sufficiently identified and autlienticated.

Tlie American authorities are in conllict on this subject; but
I agree with Mr. Bishop, as lie expressed himself in his book
on Criminal Procedure, that the foregoing doctrine adopted by
me is that which is " best sustained by reason, and as Avcll sus-
tained by authority as any other." 1 Crim. Pro., § 141.

This first ground of objection cannot bo sustained.

Tlie remaining exception taicen to the proceedings at the
oyer relates to the admission of certain testimony.

The indictment charged that the defendant, being a member
of the city council of Cape May, unlawfully did furnisii sup-
plies to an;l for Ihe city of Cape May, the expense of which
supplies was paid by the city council, of which the said Chris-
topher T. Magrath was a member.

The gravamen of the olfense Avas the payment of these
moneys by the body to which the defendant belonged. It v;ng
therefore incumbent on the pi'osccution to show not only pay-
ment, but payment by this city council.

The testimony on the part of the state on this subject was
this: The treasurer testified that he made the ])ayincnt to the
defendant lor those supplies; that he made it irregularly, with-
out the order of the common council, and, in order to show tlio
assent of the common council to such act, ho proceeded to state
that the council, subscqncntl}^ by a formal rt^solution in their
minutes, ratilied the payment. The defense insisted tliat if
such resolution was passed, the proper proof was the minutes
of the common council, and tliat parol evidence was not ad-
missible, and could not supply its place. The evidence objected
to was admitted, and I think that in this particular an eri-or
in law is exhibited. The action of the common council was a
necessary part of the case of the state, and as there was written
and formal evidence of such action, secondary evidence, under
the circumstances, should not have been introduced.

The rule for a now trial must bo made absolute.

EX PARTE WILSON.

2S3

Ex Parte Wilson.

(114 U. S., 417.)

Lnkamous crime: Ilahcas corpus— Information— Indictment — Sentence.

1. Hadhas corpus from United States suprems court,— It is well

Bcttlod tlijxt the United States supremo court cannot discharge a person
imprisoned under sentence of a circuit or district court in a criminal
case, unless the sentence exceeds the jurisdiction of that coui't, or thero
is no authority to liold liiin under the sentence.

2. Information or indictment.— The provision of the Revised Statutes of

the United States authorizing certain offenses to be prosecuted by in-
dictment or by information does not prechide tlie prosecution, by infor-
mation, of other offenses of such a grade as may be so prosecuted
consistently witli the constitution and hiws of the United States.
8. Record of conviction. — Tlie omission of the record to state that thero
was no suitable penitentiary within the state is no ground for discharg-
ing the prisoner on JiabeuN cor2nis.

4. Same. — A certified copy of tlie record of conviction, if valid upon it3

face, is sufRcient to authorize the keeper of the prison to hold the pris-
oner witliout any warrant or viittimns.

5. Infamous crime. — A crime punishable by imprisonment for a term of

yeara at liard labor is an infamous crime within the meaning of the fiith
amcnJment to the constitution, and a person sentenced to suuli impris-
omnent without having been presented or indicted by a grand jui'y is
entitled to bo discliai'ged on habeas corpus.

II r. Alford /iu.well, for petitioner.

Mr. Assistant Attorncij-General Maury, contra.

Jfr. Justice Gkav, after stating the facts, delivered the opin-
ion of the court.

It is xcgW settled by a series of decisions tliat this court, hav-
int^ no jurisdiction of criminal cases by writ of error or appeal,
Ciinnot discharge on haheas corpus a person imprisoned under
tiic sentence of a circuit or district court in a criminal case,
unless the sentence exceeds tlie jurisdiction of that court, or
tliei'c is no autliority to hold iiim under tlie sentence. lL,e parte
Wittkinn, ?> Pet., 103, and 7 Pet., 5GS; Ec parte Lange, 18
Wull., lO,*]; Ec jmrte Parks, 93 U. S., IS; Ev parte Slehold,
10ft IJ. S., 371; Ev imrtc Gnrth, 100 U. S., 371; J5:« parte
CarU, 100 U. S., 521; Ee jyarte Ynrhrongh, 110 U. S., 051;
Ex parte Crancli, 112 U. S., 178; Ec parte Bigelow, Hi, U.
S., 328.

in'

284

AMERICAN CRIMINAL REPORTS.

None of the grounds on wliich the petitioner relies, except the
first, require extended discussion.

The provision of Eevised Statutes, section 1022, dei'ived from
the Civil Rights Act of May 30, 1870, chapter 114, section 8,
authorizing certain oifenses to be prosecuted either by indict-
ment or by information, does not preclude the prosecution by
information of other offenses of such a grade as may be so
prosecuted consistently with the constitution and laws of the
United States.

The objection of variance between the conviction and the
sentence is not sustained by the record. The first count is for
unlawfully having in possession, with intent to sell, an obliga-
tion engraved and ])rinted after the similitude of securities
issued under autiiority of the United States, and the copy
annexed and referred to in that count is of such an obligation.
Both the verdict and the sentence are general, and therefore
valid if one count is good. Un'di'd States v. Snyder, 112 U. S.,
216. The misrecital of the vei-diet, in the statement of the
intermediate inquiry, whether the ])risoner had aught to say
wliy sentence should not be pronounced against him, is no
more than an irregularity or error, not affect ing the jurisdiction
of the court.

The omission of the record to state, as in Kc parte Knrsten-
dick, 03 U. S., 390, that there was no suitable i)enitentiary
within the state, and that tlie attorney-general had designated
the house of correction at Detroit as a suitable place of im-
prisonment outside the state, is even less material.

The certified copy of the record of the sentence to impris-
onment in the Detroit house of correction, if valid upon its
face, is sufficient to authorize the keeper to hold the prisoner
without any warrant or mltt'uims. People v. JVevens, 1 Hill
(N. Y.), 154.

But if the crime of which the petitioner was accused was an
infamous crime, within the meaning of the fifth amendment
of the constitution, no court of the United States had juris-
diction to try or punish him, except upon presentment or in-
dictment by a grand jury.

AVe are therefore necessarily brought to the determination
of the question whether the crime of having in possession,
with intent to sell, an obligation engraved and printed jittcr

EX PARTE WILSON.

285

the similitude of a public security of the ITuited &ta':es, pun-
ishable by line of not more than $.'>,()( )0, or by imjjrisonment
iit hiirl labor not more than fiftoon years, or by both, is an in-
famous crime within the meanin<j- of this amendment of the
constitution. '

The first provision of this amendment, which is all that re-
lates to this subject, is in these words: " No person shall be
held to answer for a capital or otherwise infamous crime, un-
less on a presentm(;nt or indictment of a grand jury, except
in cases arising in the land or naval forces, or in the militia,
when in actual service in time of war or public danger."

The scope and effect of this, as of many other provisions of
the constitution, are best ascertained by bearing in mind what
the law was before.

Mr. William Eden (afterward Lord Auckland), in his Princi-
ples of Peiuil Law, which passed through three editions in
England and at least one in Ireland, within six years before
the declaration of independence, observed: "There are two
kinds of infamy; the one founded in the opinions of the peo-
ple respecting the mode of punishment, the other in the con-
struction of law respecting the future credibilit}'^ of the
delincpient." Eden's Principles of Penal Law, ch. 7, § 5.

At that time it was already established law that the infamy
which discpialilied a convict to be a witness depended upon the
character of his crime, and not upon the nature of his punish-
ment. Pendoch v. McKinder, Willes, 005; Glib. Ev., 143;
2 Hawk., ch. 4(i, § 102; TI>c King v. Pnddle, 1 Leach (4th ed.),
442. The disqualification to testify appears to have been lim-
ited to those adjudged guilty of treason, felony, forgery, and
crimes injuriously affecting, by falsehood and fraud, the admin-
istration of justice, such as ])erjury, subornation of perjury,
su[)j)ression of testimony by bi'ibery, conspiring to accuse one
of crime or to procure the absence of a witness; and not to
have been extended to cases of private cheats, such as the
obtaining of goods by false pretenses or the uttering of counter-
feit coin or forged securities. 1 Greenl. Ev., § 37!}; Utley v.
Mctrkl; n Mot, 302; Fttx v. Ohio, 5 How., 410, 433, 434.

But the object and the very terms of the provision in the
tit'th amendment show that incompetency to be a witness is
Mot the only test of its application.

5i8(;

AMEIilCAN CRIMINAL UEPOUTS.

)

"Wliotlior ii convict shall ho permitted to testify is not f>;ov.
erned liy a roL;iird to his ri<?hts or to his protection, hut hy tlio
considoratio:i whether the law dconia his testimony worthy of
credit upon the trial of the rig-lits of others. IJnt whctlier a
man shall ho put upon his trial for crime witlioiit a prercntniont
or indictment by a grand jury of his fellow-cili/cns depends
upon the consequences to himself if he shall I)0 found /guilty.

By the law of En^rland informations by the attorney-gcMicial,
without the intervention of a grand jury, were not allowed Cor
capital crimes, nor for any felony, l)y which was understood
any olfense whicli at common law occasioned a total forfeitiiro
of the offender's lands or goods, or both. 4 131. Com., 94, 0.5,
310. The question Avhether the prosecution nuist ho by indict-
ment, or might ho hy information, thus depemled upon tlio
consequences to the convict himself. The fifth amendment,
declaring in Avhat cases a grand jury should bo necessary, and
in effect affirming the rule of the common law upon the saino
subject, substituting only, for capital crimes or felonies, "a
capital or otherwise infamous crime," manifestly had in view
that rule of the common law rather than tho rule on the very
different question of tho competency of witnesses. The lond-
ing word "capital" describing tho crime by its punishmout
only, tho associated words "or otherwise infamous crime"
must, by an elementary rule of construction, include crimes
subject to any infamous punishment, even if they should be
held to include also crimes infamous in their nature, mdepcnd-
ently of tho punishment affixed to them.

A reference to the history of tho proposal and adoption of
this provision of the constitution conlirms this conclusion. It
had its origin in one of tho amendments, in the nature of tlic
bill of rights, recommended by the convention by which the
state of Massachusetts in 1788 ratified the original constitution,
and as so recomxraended was in this form : " No jwrson shall bo
tried for any crime, by which he may incur an infamous pun-
ishment, or loss of life, until he bo first indicted by a grand
jury, except in such cases as may arise in tho government and
regulation of the land and naval forces." Journal ]\Iassiic]ui-
setts Convention 1788 (ed. 1850), 80, 8^, bV; 2 Elliot's Debates,
177. As introduced by Mv. Madison in 1789 at the first session
of the house of representatives of the United States, it stood

KX PARTE WILSON.

287

thus: "In all crimos ]ninis]inl)le with loss of life or member,
nreseiitment or indict incut by a jij^rand jury shall be an essential
preliminary." iiein;^ referred to a committee, of which Mr.
Madison was a member, it Avas rejjorted back in substantially
tlie same form in which it was afterwards approved by congress,
and ratified by the states. 1 Annals of Congress, 4135, 7(50.

Mr. Dane, one of the most learned lawyers of his time, and
who as a member of the continental congress took a principal
part in framing the ordinance of 1787 for the government of the
northwest territory, assumes it as unquestionable that, by virtue
of the amendment of the constitution, informations " cannot bo
used where eitlier capital or infamous punishment is inflicted."
7 Dane, Ab., 280. Judge Cooley has expressed a similar opin-
ion. Cooley, Principles of Constitutiontil Law, 291.

The only mention of information in the first crimes act of
the United States is in the clause providing that no person
" shall be proseouted, tried or punished for an offense not cap-
ital, nor for any ilne or forfeiture under any penal statute,
unless the indictment or information for the same shall be
found or instituted within two years from the time of commit-
ting the offense, or incurring the line or forfeiture," Act of
April 30, 1790, cli. 9, § 32; 1 Stat., 119. For very many years
afterwards, informations were principally, if not exclusively,
used for the recoverv of tines and forfeitures, such as those
hnposed by the revenue and embargo laws. Acts of July 31,
1789, ch. 5, § 27 (1 Stat., 43); March 20, 1804, ch. 40, § 3, and
March 1, 1809, ch. 24, § 18 (2 Stat., 290, 532); United States v.
Hill, I Brock., l.'iO, 1.58; United States v. Jlann, 1 Gallison, 3,
177 ; Walsh v. United States, 3 AVoodb. & Min., 341. Mr. Justice
Story, writing in 1833, said: '"This process is rarely recurred
to in America, and it has never j^et been formally put into
operation by any positive authority of congress, under the
national government, in mere cases of misdemeanor; though
common enough in civil prosecutions for penalties and forfeit-
ure." Story on the Constitution, § 1780.

The informations which passed witiiout objection in United
States V. Ishatn, 17 Wall., 490, and United States v. Buszo, 18
Widl., 125, were for violations of the stamp laws, punishable by
tine onlv. And the offense which Mr. Justice Field and Judcre
Sawyer held in United States v. Waller, 1 Sawyer, 701, might

288

AMERICAN CRIMINAL REPORTS.

be prosecuted by information, is there described as " an offense
not capital or otherwise infamous," and, as appears by the state-
ment of Jud<je Deady in United States v. BlitcJc, 4 Sawyer, 211,
213, was the introduction of distilled spirits into Alaska, pun-
ishable only by fine of not more than $500, cr imprisonment
not more than six months. Act of July 27, 18G8, ch. 273, § 4
(15 Stat, 241).

Within the last fifteen years, prosecutions by information
have i^reatly increased, and the general current of opinion in the
circuit and district courts has been towards sustaining them for
any crime, a conviction of which would not, at common law, have
disqualified the convict to be a Avitness. Un Ited States v. S/iej)ard,
1 Abbott (U. S.), 431; United States v. Maxwell, 3 Dillon, 275;
United States v. Mock, 4 Sawyer, 211 ; United States v. J/itlep,
3 Hughes, 553 ; Un ited States v. Baiigh, 4 Hughes, 501 ; United
States V. Yates, Fed. Rep., 801; United States v. Field, 21
Blatcliford, 330; In re Wilson, 18 Fed. Rep., 33.

But, for the reasons above stated, having regard to the ob-
ject and the terms of the fii'st provision of the fifth amendment,
as well as to tlie history of its proposal and adoption, and to tlie
early understanding and ])ractice imder it, tliis court is of ojjin-
ion that the competency of the defendant, if convicted, to be a
witness in another case is not the true t( st ; and tluit no person
can be hold to answer, without presentment or indictment hy
a grand jury, for any crime for which an infamous punislnnent
may be impos'^d by the court.

The question is whether the crime is one for which tlio stat-
utes authorize the court to award an infamous punislmient, not
whether the punishment ultimately awarded is an infamous
one. "When the accused is in*langerof being subjected to an
infamous punishment, if convicted, he has the riglit to insist
tliat he sliall not be put upon his trial, excei)t on the accusation
of a grand jury.

Nor can we accede to tlic proposition which has been some-
times maintained, that no crime is infamous, within the mean-
injj of the fifth amcncbnent, that lias not been so declared hv
congress. See Unite<l States v. Tly;*//, 3 McCraiy, 2(10, and 11
Fed. liep., 57; United States )\ Petit, U Fed. Rep., 5S; United
States V. Cross, 1 MacArtliur, 14l>. The purpose of the amend-
ment was to limit tlie powers of the legislatun;, as well as of tlie

21,

EX PARTE WILSON.

289

prosecuting officers of the United States. "We are not, indeed,
disposed to deny that a crime, to the conviction and punish-
ment of Avliich congress has superadded a disqualification to
hold office, is thereby made infamous. United States v. Wad-
dell, 112 U. S., 70, 82. But the constitution protecting every
one from being prosecuted, without the intervention of a grand
jury, for any crime which is subject by law to an infamous
punishment, no declaration of congress is needed to secure, or
competent to defeat, the constitutional safeguard. The re-
maining question to be considered is, whether imprisonment at
hard labor for a term of years is an infamous punishment.

Infamous punishments cannot be limited to those punish-
ments Avliich are cruel or unusual ; because, by the seventh
amendment of the constitution, "cruel and unusual punish-
ments " are wholly forbidden, and cannot, therefore, be law-
fully inflicted even in causes of convictions upon indictments
duly presented by a grand jury.

By the lirst crimes act of the United States, forgery of pub-
lic securities, or knowingh'^ uttering forged public securities
witli intent to defraud, as well as treason, murder, piracy, mu-
tiny, robbery, or rescue of a person convicted of a capital
crime, wo s punishable with death; most other offenses were
punished by fine and imprisonment; Avhipping Avas part of the
punishment of stealing or falsifying records, fraudulently ac-
knowledging I)ail, larceny of goods, or receiving stolen goods;
disqualification to hold office was part of the punishment of
briber}"^; and those convicted of perjury or subornation of per-
jury, besides being lined and imprisoned, were to stand in the
pillory for one hour, and rendered incapable of testifying in
any court of the United States. Act of April 80, 1790, ch. 9
(1 Stat., 112-117); Mr. Justice Wilson's Charge to the Grand
Jury in 1791, 3 Wilson's Works, 380, 381. By that act no
provision was made for imprisonment at hard labor. But the
punishment of both fine and imprisonment at hard labor was
prescribed by later statutes, as, for instance, by the act of April
21, 1800, ch. 49, for counterfeiting coin or uttering or import-
ing counterfeit coin; and by the act of March 3, 1825, ch. 05,
for perjury, subornation of perjury, forgery and counterfeit-
ing, uttering forged securities or counterfeit money, and other
grave criiies. 2 Stat., 404; 4 Stat., 115. Since the punish-
VoL. IV— 19

290

AMERICAN CRIMINAL REPORTS.

ments of whipping and of standing in the pillory ^yGro abolished
by the act of February 28, 1839, ch. 36, § 5 (5 Stat., 322), im-
prisonment at hard labor has been substituted for nearly all
other ignominious punishments not capital. And by the act of
March 3, 1825, ch. 65, § 15, re-enacted in E. S., § 55i2, any
sentonce of imprisonment at hard labor may be ordered to be
executed in a state prison or penitentiary. 4 Stat., 118.

AVhat punishment shall be considered as infamous may be
affected by the changes of public opinion from one age to an-
other. In former times, being put in the stocks was not con-
sidered as necessai'ily infamous. And by the first judiciary
act of the United States, whipping was classed witli moderate
fines and short terms of imprisonment in limiting the criminal
jurisdiction of the district courts to cases " when no other
punishment than whipping, not exceeding thirty stripes, a fine
not exceeding §100, or a term of imprisonment not excecdinji-
six months, is to be inflicted." Act of September 21, ITS',), ch.
20, § 9 (1 Stat., 77). ]>ut at the present day either stocks or
whipping might be thought an infamous punishment.

For more than a century, imprisonment at hard labor in the
state prison or penitentiary, or other similar institution, has
boen considered an infamous punishment in Eiigkuid and
America.

Among the punishments "that consist principally in tlioir
ignominy," Sir William Blackstone classes " hard lal)(>i', in tlie
house of correction or otherwise," as well as whi[)ping, tlie
pillory or the stocks, -t iJl. (.'om., 377. And Mv. Dane, wliik*
treating it as doubtful whether confinement in tlie stoclcs or in
the house of correction is infamous, says: '* Punislnncnts,
clearly infamous, are death, gallows, pillory, brandiiig, \\liii)-
ping, confinement to hard labor and cropping." 2 Dane, Ah.
569, 570.

The same view has been forcibly expressed by Cliief Justice
Sliaw. Speaking of imprisonment in the state prison, which,
by the statutes of Massachusetts, Avas required to l)o at hard
labor, he said: "Whether avo consider the words 'infamous
punishment ' in their popular meaning, or as they are under-
stood by the constitution and laws, a sentence to the state
prison, for any term of time, must be considered as falling
within them. The convict is placed in a public place of punish-

EX PARTE WILSON.

291

ment, common to the whole state, subject to solitary imprison-
ment, to have his hair cropped, to be clothed in conspicuous
prison dress, subjected to hard labor without pay, to hard fare,
coarse and meagre food, and to severe discipline. Some of
these a convict in the house of correction is subject to; but the
house of correction, under that and the various names of work-
house and bridewell, has not the same character of infamy at-
tached to it. Besides, the state prison, for any term of time.
is now by law substituted for all the ignominious punishments
formerly in use; and, unless this is infamous, then there is now
no infamous punishment other than capital." Jones v. Rohhhfi,
8 Gray, 32!), 349. In the same case Mr. Justice Merrick, while
dissenting from the rest of the court upon the question whether,
under the words " the law of the land " in the constitution of
i^Iussachusetts, an indictment by a grand jury was essential to
a prosecution for a crime punishable by imprisonment in the
state prison, and talcing a position upon that question more
accordant with the recent judgment of this court in Jhiriado
v. C<i///oniki, 110 IT. S., .510, yet concurred with the other
ju(1l!,cs in holding that such imprisonment at hard labor was an
infamous punishment. 8 (xray, 370, 372.

Imprisonment at hard labor, compulsory and unpaid, is, in
the strongest sense of the words, "involuntary servitude for
crime," spoken of in the provision of the ordinance of 17S7,
and of the thirteenth amendment of the constitution, by which
all other slavery was abolished.

Deciding nothing beyond what is required by the facts of
the case before us, our judgment is that a crime punishable by
imprisonment for a tenn of years at hard labor is an infamous
crime, within the meaning of the fifth amendment of the con-
stitution; and that the district court in holding the petitioner
to answer for such a crime, and sentencing him to such impris-
onment, without indictment or presentment by a grand jury,
exceeded its jurisdiction, and he is therefore entitled to be

discharged.

Writ of habeas corpus to issue.

Note.— In Gihhn and Stanton v. State, 45 N. J., 379, the court held that
a ju(l,i;inent that the defendant " be confined in the state prison for the term
of si.\ montlis," etc., without stating that he bo put to hard labor, was suf-
ficient, as the xienal conaequence would follow the judgment. " Hard labor,"

292

ASIERICAN CRIMINAL REPORTS.

says the court, "is a component part of confinement in the state prison,
and, therefore, when the sentenoo is to subjeit tlio prisoner to such confine-
ment, it necessarily follows that he is thereby condemned to hard labor."
We are inclined to think that it is the character of the punishment, rather
than its severity, wliich renders a crime infamous.

TViLLiAMs V. The State.

(13 Tex. Ct. App., 226.)

Information: Time.

An information is fatally defective which omits to allege that the offense
was committed anterior to the day of the filing thereof, when the stat-
ute requires that the time of the commission of the offense should bo
so stated.

Appeal from the County Court of McLennan,
the Hon. G. E. Gerald, County Judge.

Tried before

Jennings c6 Baker, for the appellant.

II. Chilton, assistant attorney-general, for the state.

WiLLsoN, J. In this case the information and the complaint
both charge that the offense was committed on the 8th (hiy of
June, 1881, and botli are fdcd and i)resontcd in court on the
8th day of June, 1881 ; and tliere is no allegation that tlic
offense was committed anterior to the presentment of the in-
formation.

Repeated decisions, as well as the statute, show this infor-
mation to be fatally defective because of the omission to allege
that the offense was committed anterior to the filing of the in-
formation. Code Crim. Proc, art. 430; Joel v. State, 28 Tex.,
042 ; Nelson v. State, 1 Tex. Ct. App., r>:>C^. The judgment of
conviction is reversed, and the information is dismissed.

Itcversed and dismissed.

Note. — A complaint charging an offense as committed after the date of
the complaint will bo quashed, on objection taken after appeal, notwith-
standing tlio statute which provides that " any objection to a complaint, in-
dictment or other criminal process, for any formal defect apparent on tlie face
thereof, shall be taken before judgment," etc. Com. v, Doyle, 110 JIass., 103.

When by clerical eiTor in drawing the indictment the term of court at
which the indictment was found was made to appear ten montlis prior to

TRASK V. THE PEOPLE.

293

the (late of the commission of the offense, it was held that the error was
not a matter of form, but of substance, and that the defect could not be
cured by amendment. The State v. Davidson, 38 Tex., 325.

A day certain within the time limited by law for the recovery of a pen-
alty, and prior to the filing of the information, must be stated. State v.
Ingalls, 59 N. H., 88.

Tkask v. The People.

(104 m., 5G9.)

iNSTRUCTioy: Based on evidence, error to refvse — Conspiracy.

IssTUUCTiON PRESENTING A PAUTY's THKORY. — On the trial of a party for
conspiracy, when the evidence upon the material jwints in the case is
conflicting, an instruction on the part of the accused, which f.airly pre-
sents the law of the case on the theory contended for by him, ought
not to be refused, having a basis in the evidence on which to rest.

"Writ of Error to the Criminal Court of Cook County ; tlie
Hon. Joseph E. Gary, Judge, presiding.

Jfr. K F. Rnnyaii, for the phiintiff in error.
Mr. Luther Lajliti Jfiils, state's attorney, and Jfr. Georcje C.
Ingham, assistant state's attorney, for the people.

Mr. Justice Sciiolfield delivered the opinion of tlie court.

The plaintiff in error Avas indicted, together with John llorr,
"William Turner, Micnael McDonough and II. M. Cook, for
conspiracy. The indictment contains two counts, varying
from each other only in the ownership of the money, goods,
etc., which it is alleged it was the purpose of the conspiracy
to obtain. Plaintiff in error was put upon trial alone. The
jury returned a verdict of guilty, lixing his punishment at con-
finement in the penitentiary for a term of two A'cars. The
court, after overruling a motion for a new trial, gave judgment
upon this verdict, to reverse which this writ of error is prose-
cuted.

One Lederer was the owner of a house in the city of Chi-
cago, and plaintiff in ei'ror was liis agent for renting the same,
and had heen such agent prior to and including the year IST.").
On the 21th day of Xovember, ISTo, ]\[ary "Wagner rented the
rooms on the second floor of this building, at a rental of $25

294

AMERICAN CRIMINAL REPORTS.

per month, and on the next day she moved into them, and con-
tinued to occupy them thenceforward until near the hist of
April, 1870. On the 20th of February, 1880, plaintiff in error
assumed to assign what he claimed was a balance of 8T5 due
on account of this occupancy of the rooms, to William Turner.
On the Dtli of July, 1880, Turner sued out a writ of attachinoiit
bofoi-e Demars, a justice of the peace of Cook county, in favor
of Ledorer and against Mary Wagner, to recover the amount
so assigned to him. The writ was placed in the hands of
Michael ]\rcDonough, a constable of Cook county, to execute,
and, assuming to act by virtue of Hs authority, he seized goods
belonging to John Taylor, in the possession of I^Iary Wagner,
and one or more articles of insignilicant value belonging to Iior,
The venue was changed from Demars to Matson, another jus-
tice of tlie peace of Cook county, and plaintiff in error a{)i)OiU'ed
in obedience to a subpa'na, and testified on the trial before
Matson. While this attachment suit was pending, somebody
representing liimself to be Franklin J. Spencer sued out a writ
of replevin before Smull, also a justice of the peace of Cook
county, for the same ])ropcrty upon which the writ of attacli-
ment was levied. This writ was placed in the hands of Jcjlni
llorr, a constable of Cook county, to execute, llorr, assuming
to act by virtue of the writ, took the attached property fi'oni
]\[cDonough and placed it in a warehouse belonging to Iloj-ncr,
who issued duplicate receipts therefor, one to ^[cDonou;:;h and
ono to Miller — the latter a name not in anywise identified by
;< ■•: of the witnesses as connected with the transactions. II.
'hi. \>ok was bondsman for Turner in the attachment suit, and
•t'^( :< 'I employee of plaintiff in error. The writ of attacliniont
%i !-• 'U tlie hearing before the justice of the peace, ([uaslied.
McDonough appeared at the return dny of the writ in the
replevin suit, and there being no prosecution, judgment was
given for the defendant, and tluit the property bo returned to
him. The warehouse receipt issued in the name of 'Oliller"
sul>sequently came into possession of Mary Wagner, and by
means of it she regained possession of the property which had
been taken from her by virtue of the writ of attachment.

The theory of the prosecution is, that there was nothing duo
from Alary Wagner to Lederer for the occupancy of the rooms ;
that the assignment to Turner was colorable only, and the suit

TRASK V. THE PEOPLE.

295

brought pursuant to a previous agreement or understanding
with plaintilf in error; that the replevin suit instituted in the
name of Frankhn J. Spencer was, in fact, instituted by plaint-
iff in error in person, under that name, and that both suits
were instituted as a means whereby to enable plaintiff in error
and one or more of .his co-defendants to obtain this property.
On tlic question of the indebtedness of Mary Wagner, there
was a conflict of evidence. Tliere v/as also evidence tending
to si low that the attachment suit was commenced by Turner of
his own voliti<jn and without the knowledge or encouragement
of i)laintiff in error, and also that the suit in the name of
Franklin J. Spencer was not commenced by plaintiff in error,
but by another person. If the jury were warranted in finding,
on these several matters, in favor of the plaintiff in error, wo
think it clear tlieir verdict should have been for the defend-
ant, for there is no other theory, warranted by the evidence,
upoa which there could be a verdict of guilty.

The plaintiff in error asked the court to instruct the jury as
follows:

" The court instructs the juiy that if they believe, from the
evidence, that on the 1st day of May, A. D. 1870, the witness
Mary L. AVagner was owing to tlie witness Lederer a balance
for rent of the premises ))reviously occupied by hei-, at the
corner of Des[)laines and Washington streets; and they further
believe, from the evidence, that she had not paid that balance
that was by her so owing to said Lederer on the 20tli day of
Februar}', A. D. 1880; and they further believe, from the
evidence, tliat on that day the defendant Trask assigned all of
the interest of said Lederer and himself in and to said claim to
William L. Turner, and that said Turner, of his own motion,
without consultation Avitli the defendant Trask, on the Otli day
of July, 1880, commenced a suit by attachment, of Lederer v.
WiKjner, before Justice Demars, and that up to the trial of said
cause said Trask was not advised witli or about said suit, and
only appeared at the trial of said cause in response to a sub-
poena, and ujion the trial of said cause only testified as to
the amount that was due from said Wagner to said Lederer ;
and they further believe, from the evidence, that said Trask
was. on the morning of the 12th <lay of July, A. D. 1880, in
Chicago, and not in Austin, and that he did not appear in

urn

AMERICAN CRIMINAL REPORTS.

Austin on that clay and obtain the writ of replevin at the suit
of Fi'anklin J. Spencer against M. B. McDonough, their ver-
dict should be not guilty. "

The court refused to give the instruction, and plaintiff in
error excepted. "We think in this there was error. The
instruction fairly presented the law on the theory of the case
contended for by plaintiff in error, and had a basis in the
evidence on which to rest.

For this error the judgment is reversed, and the cause re-
manded.

Judgment reversed.

The State v. Yines et al.

(34 La. Aim., 1079.)

Intent: Autrefois acquit — Autrefois convict.

What toentity of the offenses charged is necessary to support
the pleas of autrefois convict and op autrefois acquit.— Proof of
a different crime from the one charged, though generally ol)joctionablo,
is admissible when both offenses are closely linked or connected, espe-
cially in the res gestce, and also when such proof is jjcrtinent and nec-
essary to show intent.

Conspirators held responsible although they did not intend to
commit the particular crime. — When ixirties are engaged in the com-
mission of a crime with malicious intent, and in the execution thereof
perpetrate another criminal act not originally intended, the unintondod
act derives its character from the mtended crime, and the original mali-
cious intent affects both acts.

Appeal from the Eleventh District Court, Parish of Sabine.
Pierson, J.

The opinion of the court Avas delivered by

Fexner, J. Briefly stated, tlie facts essential to an under-
standing of the points of law raised are the following :

The defendants, Lee Vines and George L. Vines, in execution
of a conspiracy to kill one John Pye, lay in wait upon a road
along which Pye, Avho had been arrested upon the affidavit of
one of them, was conducted, in official custody, to the office of

THE STATE v. TINES.

297

the ma^^istrato. Pye was accompanied by liis son-in-law, "W.
T. Smith.

On the approach of the party, Lee Yincs shot and killed
John Pye, and, in the course of the affair, George L. Vines, it
is charged, shot and killed AV. T. Smith.

Separate indictments wei'e filed against both ; one charging
them with the murder of Pye ; the other, with the murder of
Sinitli.

Tlie case for the murder of Pye was first tried, and resulted
in a verdict convicting Leo A^'ines of manslaughter, and acquit-
ting George L. Vines.

The case now before us is for the murder of Smith.

In bar of the prosecution, the defense interposes the plea of
autrefois convict in behalf of Lee Vines, and autrefois acquit in
■ behalf of George Vines.

Error is assigned in the ruling of the court setting aside these
pleas.

The principle of the law underlying such pleas is, that the
law Avill not suiTer a man to be twice put in jeopardy for the
same offense. 1 Archbold's Cr. Pr. and PL, 111.

Tlie principle is embodied in our constitution, in the folloAV-
ing language : " nor shall any person be twice put in jeopardy
for the same offense."

Identity of the offense charged is an essential element m sup-
port of tlie plea.

By tills is not meant formal, technical, absolute identity, but
only such substantial identity that the evidence necessary to
support the second indictment Avould have been sufficient to
procure a legal conviction upon the first. Peojjie v. Bari'et, 1
Johns., GO ; Com. v. Cunningham,, 13 Mass., 245 ; Jliie v. State,
9 Yergor, ;;.-;7; AVharton's Cr. Pr. and PL, § 471; 1 Archbold's
Cr. Pr. and PL, p. 112.

In the instant case, it is clear that the indictment for the
murder of Smith might have been supported by evidence, not
including proof, even of the killing of P3'e, and, therefore, ut-
terly insuflicient to sustain an indictment for the murder of the
latter.

The cons]>iracy and the malicious intent may have been com-
mon elements of both crimes, but this is not sufficient to con-
stitute identity of the crimes themselves, which comprise not
only those elements, but also objective acts.

293

AMERICAN' CRIMINAL REPORTS.

The killing of Smith by Georn^o Vines is a totally distinct and
different offense from the killing of Pye by Leo Vinos, althou<,'h
both acts Averc done in execution of the same conspiracy. Tlicy
a,re not different grades of the same crime. They are not t\vo
felonies resulting from the same identical act. They are not
different aspects of the same unlawful act. They bear no rela-
tion to each other, in which one of them can be said to bo
moujoil in the other. They are included in none of the liair-
splitting distinctions which have involved this subject ; in the
lan^-uatire of Mr. AVharton, "in a labvrinth of subtleties.'"

The eop^ins delicti in each is, in every respect, distinct and
inde})endent.

We are not concerned, and it is not necessary to reconcile
the conclusions of the juries in the two cases on the fact of the
conspiracy. The vei'dict against George Vines, at least. nii<>ht
rest without any proof whatever of conspiracy, if Smith was
killed by his hand ; which is alone sufficient to show the un-
soundness of the plea, so far as based upon the element of
cons[)iracy. But holding that the pleas of twice in jeopardy
Avere properly overruled, tlie jury was vested with the power
of deciding all questions involved.

Tln-ee bills of exception are found to rulings of the court
upon reception of evidence:

1. The first exception Avas to permitting the state's witness
to "narrate the whole occurrence, as it took place at the time
of the killing of Smith," the objections being that this included
the killing of Pye, which, being, a distinct felony, wa.^ not ad-
missible; and because conspriacy was not expressly charged.

The court overruled the objections, because the evidence was
admissible as part of the res gestw, and because the accused
were all charged as principals.

The ruling is fully sustained by authority. As a general
rule, all that occurs at the time and place of the killing, in
homicide cases, is admitted as res f/estw. Wharton's Cr, Ev.,
sec. 202 ct seq.

Proof of a different crime from the one charged, though gen-
erally objectionable, is admissible when both offenses are closely
linked or connected, especially in the res (jesttv, and, also, Avhen
such proof is pertinent and necessary to show intent. Siate v.
IfulhoUnnd, IG Ann., 377; State v. Patza, 3 Ann., 512; State v.
Jiohfrlsoht, 12 Ann., 382 ; Wharton's Cr. Ev., sec. 262 et se^.

STATE V. BROWN.

299

2. Exception was taken to a question propounded by the
state to a witness, asking if he knew of any ill-feeling existing
between Vines and Pyo, which was objected to on the grounds
tliat it was res inter alios and not admissible to discover malice
as to deceased, Smith.

The judge, in overruling the objection, recites that the evi-
dence had established the facts, already substantially stated by
us iu tlio beginning of tliis opinion, and admitted the evidence
as tending to sliow ujjon wliat malice the accused lay in wait
and acted, holding that whether the malice was against Pye or
Smith was immaterial, if the killing of Smith was the result
of such malice.

This is sound law; the principle being, that when parties are
enffajjcd in the commission of a crime Avith malicious intent, and
in the execution thereof pei'jwtrate another criminal act not
originally intended, the unintended act derives its character
from tlie intended crime, and the original nuilicious intent af-
fects both acts. 1 AVharton's Cr. L., sec. 12S.

3. The last bill of exceptions, as to the admissibility of evi-
dence showing when the trial of Pye, ui)on the charge on
wliieli he was under arrest at the time of the killing, was fixed,
seems to us immaterial and frivolous.

Judyinent affirmed.

State v. Bkown.
(00 N. H., 205.)

iNTOXiCATixa LIQUORS: Pharmacists.

iNTOxiCATixa LIQUORS — Phakmacists.— A statute which authorizes phar-
miioists lawfully rogljitorod to keep spirituous liquors for compound iug
iiiedicinos does not confer the right upon thom to sell the liquors to
otlicrs over whom they have no control, to bo by them compounded
with medicines.

Jewell cf? Stone, for the respondent.
B. A. Hogers, solicitor, for the state.

Smith, J. The sale of spirituous or intoxicating liquors, ex-
cept by an agent of a town, is forbidden by statute. Gen.

300

AMERICAN CRIMINAL REPORTS.

Laws, cli. 109, sec. 13. But pharmacists lawfully registered
may keep spirituous liquors for compounding their medicines.
Gen. Laws, ch. 133, sec. 7. The right to keep spirituous licpiors
for a specific purpose undoubtedly includes the right to sell the
medicines so compounded. What the pharmacist himself may
do he may dc '.y his servant or agent. But the statute nowliere
confers the right upon the pharmacist to sell spirituous li(piors
before it is compounded with medicine, or to bo compounded
with medicine by the purchasers or others not his servants.
The right to sell such liqr.ors for the purpose of being com-
pounded Avith medicines is not to be inferred from the riglit to
keep them for the purpose of being so compounded. When tlie
materials are delivered uncompounded the vendor has no longor
any control over them; the purchaser is under no legal obliga-
tion to mix the materials, and opportunities for defeating tlio
object of the statute — the suppression of the sale of intoxicat-
ing liquors — are thereby increased.
Whether this is a case wliich the attorney-general ought to

•,'0 o

allow to go to judgment is a question for him to consider.

Ju'cej^tions overruled.

FosTiiij, J., did not sit. The others concurred.

State v. Fay.

(44 N. J., 474.)

Intoxicatixo liquors : Single sale— " rrohibillon"—" Regulation."

1. Single sale.— Under the "Malt Liquors Act," aiiprovotl April 4, ISTi

(Rev., p. 494, g 13), a, single sale of any of the liquors mentioned witii-
out license makes the seller Uablc to indictment as keeper of a di'or-
derly house.

2. Construction of license law with p.efeuence to charter.— The

act is operative throughout the state except in townships, cities and in-
corporated towns, where laws arc in force regulating the sale of such
li(juors outside of inns and taverns.

3. Same — "Prohibition" — "Regulation." — Authority conferred upon a

town to prohibit all traffic in or sale of intr.xicating driidis, with i'.i;-
thority to license, regulate or prohibit inns or taverns, held, not to lin-
brace authority to regulate the sale of liquors outside of inns and
taverns.

STATE V. FAY.

301

On Error to tlio Atlantic O^-cr and Terminer, TJeforo Bcas-
Icy, Chief Justice, and Justices Dixon, Magic and Parker.

A. IT. Sharp, for the state.

//. L. & A. L. Slape^ for the plaintiff.

The opinion of the court was delivered by

Dixox, J. The defendant Avas indicted for keeping a disor-
derly house in the town of Ilamnionton, Atlantic county. The
offonse proved was the sale of lager beer in less quantity than
a quart, to bo drunk upon the premises where it was sold, with-
out license ; and the court charged that such a sale on more than
one occasion constituted guilt under the indictment. The de-
fendant by writ of error comj)lains of this instruction.

The charge can bo sustained onl}" by force of the thirteenth
section of the act to regulate the sale of ale and other malt
liquors, approved April 4, 18T:J (liev., p. 404), which provides
tliut if any person shall sell any of the liquors aforesaid (among
thoni being lager beer) without license first obtained, accord-
ing to the act, then such person shall bo held as a keeper of a
disorderly house, and be liable to indictment and punishment
as such.

Tiiis statute, if applicable, ])lainly rendered the defendant
subject to conviction of the oll'ense alleged and justiiied the
charge. But it is claimed to bo inapplicable, because its four-
tccntli section declares that none of its pi-ovisions shall apply
to any township, city or incorporated town in which laws are
in force regulating the sale of any of the liquors mentioned in
tlie act.

The question, therefore, becomes resolved into this: Avhether
in the town of llammonton there were in force any laws (e. e.
any laws other than the general law) regulating the sale of
these liquors. The only law referred to by the defendant is
the act incorporating the town (Pamph. L. 1800, p. 188), the
twenty-third section of which provides that the corporation
may have power to pass, enforce, alter and repeal ordinances
to take effect within the town for the following purposes, to
wit: . , , to license, regulate and prohibit inns or taverns,
and to prohibit all traffic in or sale of intoxicating drink or
drinks.

302

AMERICAN CRIMINAL REPORTS.

The cl.iuse in this charter concerning inns and taverns
should not be permitted to exclude from the town the opora-
tion of the " Malt Liquors Act," for the reason that in our
legislation the keeping of inns and the retail tralRc in malt
liquors are treated as distinct subjects of regulation. Although
iim-keepors may under their licenses retail malt liquors, and
so, in a sense, laws regulating ini»e regulate the sale of these
liquors, yet we think that the laws regulating such sale, Avhich
are intended by this fourteenth section, are those laws refer-
ring to the traffic apart from inn-keeping, laws which in tliis
respect resemble the " Malt Liquors Act " itself. Ilencc, no
support for the defendant's contention is to bo derived from
this clause of the charter.

But does the clause for the pi'ohibition of all traflTic in intox-
icating drinks constitute a law for the regulation of the sale of
these liquors, and so save the town from the operation of the
statute ?

The leading rules for the construction of municipal charters
are well summed up by Mr. Dillon as follows: *' A municipal
corporation possesses and can exercise the following powora
tand no others: First, those granted in express words; second,
those nettessarily or fairly implied in or incident to tlio powers
expressly fjranted; third, those essential to the declared objects
and pur, ies of the corporation, not simply convenient, but
indispensable. Any fair, reasonable doubt concerning the ex-
istence of power is resolved by the courts against the corpora-
tion, and the power is denied." 1 Dill, on Mun. Corp. (3d ed.),
§ 89.

In the charter now before us the power expressly granted is
the power to prohibit the sale. This is not equivalent to nor
does it fairly embrace a power to regulate. The exercise of
the latter power provides for the continuance of the traffic
under prescribed rules; the former power is to bo wielded only
for its suppression. As was said in Sc/iwxf/iow v. Chhuujo, G8
III., 444: : " To suppress must mean to prevent and not to license
or sanction the act to be suppressed. It would bo a contusion
of tei ms to say that a thing is suppressed when it is protected,
licensed or encouraged." And in C'dy of Sf. Louh v. Sni'dh, 2
Mo., 113, the court, speaking of authority to restrain and pro-
hibit tippling-houses, said: "The legislature intended to give

STATE V. FAY.

303

the corporation, by the words 'restrain and prohibit,' two
powers; one was to prohibit their existence altogether, if they
thought it best to do so, and the other was to keep them
witiiin certain limits, as to the number and order, as they
should think best."

In Gnnnarssohn v. City of Sterling, 92 111., 5G9, it was indeed
said that a general power to prohibit is sulRcient to authorize
any i)artial prohibition deemed advisable, but the court was
speaking of an oi'dinance which merely forbade sales in quan-
tities loss than five gallons, and did not attempt to regulate
permitted sales. By carrying out this notion of partial inter-
diction to its furthest extent, it might be made to ai)pcar that
a])r()hibition of all sales which wore not made in courormity
Avith designated requirements would operate as a ro:^ulation of
the tratUc ; but an exercise of the power to prohibit, with this
end of regulation in view, would be a manifest strain of'author-
ity, and of such doubtful propriety as to come under the con-
demnation of the rules before mentioned. For intrinsically,
regulation and prohibition range in di tie rent sphei'cs; no sale
which is prohibited is regulated, and none regulated is ])rohib-
itcd. This interpretation of the grant of power in this charter
is enforced by the context. The power immediately preceding
this is, "to license, regulate and prohibit inns and taverns."
The power immediately following is, "to license, regulate and
prohibit hawkers and peddlers." This power is merely " to
prohibit all traftic in or sale of intoxicating drinks." Such
language is tantamount to a declaration that the legislature
gives authority to prohibit, but withholds authority to license
or regulate the traiHc.

;^^y conclusion therefore is, that in neither of these clauses
which • L'latc to inns and intoxicating drinks, is there expressed,
or by fair implication to bo found, any law for regulating the
sale of malt liquors in the town, outside of inns and taverns.

The other provisions of the charter relating to nuisances and
vice and immorality have been noticed, but it is not i)erceived
that they contain any warrant for regulating the mere sale of
malt li(piors ; such sale, of itself, except so far as it is interdicted
by positive statute, is not, under our law, cither a nuisance or
vici(jus or immoral. Xor is there any declared object or pur-
pose; of the corporation to which this power of regulation, in

304

AMERICAN CRIMINAL REPORTS.

addition to the power of prohibition or suppression, scorns in-
dispensable. Hence the " Malt Liquors Act " prevails in the
town of Ilammonton, and under its provisions the defendant
■was, for a single sale, rightly convicted of keeping a disorderly
house, and the judgment below shoidd be affirmed.

SiFKED V. CoMMONWEALXn.

(104 Pa. St., 179.)'

iNTOXiCATiNa liquors: Sunday — statutory construction.

1. Tlio act of April 12, 1875, prohibiting the sale of liquor on Sunilay, and

providing a penalty by fine, docs not repeal, by implication, the prior act
of February 20, 1855, prohibiting the sale of liquor on Sunday, and pro-
viding a penalty by line and imprisonment.

2. Repeal by implication of a prior statute by a later one.

Before Mercur, C. J., Gordon, Trunkey, Sterrett. Green and
Clark, JJ.

Paxon, J., absent.

JIazlctt (0 Williams (with Eocl^), for plaintiffs in eri'or.
W. II. Klingensmith (with Silas A. Kline, district attorney);
for the defendant in error.

Chief Justice Mercitu dclivei'ed the opinion of the court.

The plaintilfs in error plead guilty to an indictment contain-
ing two counts. It is framed under section 1 of tlie act of 2nth
of February, 1885 (Pur. Dig., 040, pi. 38). The flr!;t count
charges them Avith selling liquors on Sundny; the other count
charges that they did unlawfully' and knowingly allow and
permit liquors to be drunk on Sunday, on and within the house
and premises kept and maintained by them. The court there-
upon sentenced them to imprisonment for a period of sixty days,
imposed a fine of $100 and the costs of prosecution on cacli,
under section 3 of said act.

The plaintiffs in error claim that in so far as this act of 1855
prescribed the punishment for selling liquors on Sunday, it was
repealed by the act of 12th April, 1875 (P. L., 40). Error is
assigned to the sentence.

It is well settled that express provision of a subsequent Irv

SIFRED V. COMMONWEALTH.

305

is not absolutely necessary to repeal a statute. It may be re-
pealed by necessary implication. The leaning, however, of the
courts is strongly against repealing the positive provisions of
a former statute by construction. Dwarr. on Stat., 154. The
more natural, if not necessary, inference in all such cases is,
that the legislature intend the new law to be auxiliary to and
in aid of the purposes of the old law. There should therefore
be such a manifest and total repugnancy in the provisions of
the new law as to lead to the conclusion that the latter law
abrogated, and was designed to abrogate, the former. There
are cases, however, in which it is held that although the latter
statute be not repugnant to the former one, and there be no
express provision in the latter repealing the former, yet if the
latter prescribe the only rules which shall govern, it repeals
the former one in all those respects in which it differs from the
latter in the governing rule. Daviess v. Fairhurn^ 3 How. U.
S. K., 030. The general rule, however, is that there must be
such a positive repugnancy between the provisions of the new
statute and the old that they cannot stand together or be con-
sistently reconciled. Walhxcc y. Bassett, 41 Barb., 92; MeCool
V. Sinifh, 1 Black, U. S. R., 459; Bank v. Cormnonwealf/i, 10
Barr, 442; Brown v. Gonnfij Commissioners, 9 Harris, 37. If
it be possible that both can stand by construction, then the
proper inquiry is, what was the intention of the legislature?
Did it mean to repeal the former law, or was the new law in-
tended to be merely cumulative ? United States v. Case of Hair
Pencils, 1 Paine, 400.

The act of 1S75 referred to contjiins twelve sections, yet no
one of them makes any reference to the act of 1855. Section
1 expressly repeals the act of 27th IVfarch, 1872, which author-
ized a vote to be taken every three years on the question of
granting licenses to sell intoxicating liquors. Section 2 pro-
vides when and under what rules licenses for the sale of liquors
may be granted. Section 3 provides for the classification of
hotels, inns and taverns, and sjieciiies the sum which those of
each class shall pay. Then section 4, inter alia, declares "that
any sale made of vinous, spirituous, malt or brewed liquors, or
any admixture thereof, contrary to the provisions of this law,
shall be taken to be a misdemeanor, and upon the conviction of
the offense in the court of quarter sessions of the peace of any
Vol. IV — 20

300

AMERICAN CRIMINAL REPORTS.

city or county, the person so offending shall bo sentenced to
pay a fine of not loss than $200, nor more than 8">00."

The previous sections of the act changed the classification
tand increased the sums which the keepors of hotels wei'o re-
quired to pay for licenses under pi'ovious laws, and section 4
imposed the penalty stated for their violation. Section 5 pro-
vides tliut the lines, ])enalties and proceeds of forfeited bonds
be ])aid to the city or county treasurer. Section G directs every
constal)lo to make return of retailers of liquors, and also uiulor
oath of iiny unlicensed place within his bailiwick, within his
knowledge, kept and maintained in violation of this act, and
upon his wilful failure to do so, after being duly notified in
writiiig, he shall be deemed guilty of the crime of j)crjurv. and
subject to its penalties. Section 7 provides, when a person has
the habit of drinking intoxicating liquor to excess, that eitlier
member of his family therein specified may give written notice
to any person not to sell or deliver intoxicating litpior to the
person having such habit, and if the person so notified docs
sell and deliver such licpior to the person having such habit, the
person giving the notice may in action of tort recover ol' the
pereon notified any sum not less than $50, nor more than
$500, as may be assessed by " the court or judge," as danuigos.
Section 8 prohibits non-residents of this commonwealth how
engaging in selling, trading or vending intoxicating licnioi-
within the commonwealth. Section 1> provides for the cancel-
lation of bonds given under the act, and the releasing of sure-
ties therefrom. Section 10 [)resci'il)os the form and condition
of the bond which shall be executed to obtain a license to soil
intoxicating drinks. Secticm 11 declares "it shall not be law-
ful fcM'any person, with or withoiit license, to sell to any per-
son any intoxicating drink, on any day on wliich elections are
now or hereafter may be requii-od to be held, nor on Sunday,
nor at any time to a minor, or to a person visibly affected by
intoxicating drinks." This is the Avhole section. Neither it
nor the subsequent section ])rescribes any penalty for its viola-
tion. It is bv virtue of this section, standiu"- as it does re-
moved from section 4, and making no reference thereto, that
the plaintiffs in error claim the punishment prescribed by the
act of IS.k") is repealed.

We have thus referred to the act of 1875 at length and in

SIFRED V. COMMONWEALTH.

307

l»y
it
olii-
\v-
W.d
tlio

detail to show that no part thereof in any manner refers to
the act of 1855. Tliat no repeal of the latter was intended is
apparent from the whole act of 1875.

1. Any existin;;^ act supposed to he in conflict therewith or
sui)er.se(led tliereby was oxjiressly repealed by the first section.

2. The act clearly indicates an intention to present sepa-
rate] v the different requirements of the law, and to provide a
specilic penalty for the violation of eacli. Thus the punish-
ment prescribed in section 4 was desij^ned to ai)ply to violations
of the law under })revious sections of the act. Section 6 made
certain acts a crime, and immediately provided a specific pen-
alty therefor. In like manner, section 7 created an offense,
and prescribed the penalty to bo imposed on the offender.

No section prior to section 11 in any manner refers to any
of the offenses therein stated. We are satisfied there was no
intention to subject a person guilty of the acts mentioned in
the eleventh secticm to the penalties prescribed in the fourth
section. The reasonable conclusion is tiiat section 11 was
iulded tlir<)U<^-h abundance of caution to negative any pre-
sumption that the licenses granted under sections 2 and 3
would authorize the sale of li(pior on any of the days men-
tioned in section 11.

The act of 8th May, 1854, authorized the imposition of a
fine and imprisonment for wilfully furnishing intoxicating
drinks to any person of known intemperate habits, to a minor
or to an insane person, for use as a beverage. The act of 26th
February, 1855, l)efore cited, authorizes the imposition of a
fine and imprisonment on one selling li(pu)r on Sunday, or on
one i)ermitting it to be drank on that day on his premises.
The act of IHth March, 1S72, makes it a misdemeanor to sell,
furnish or give away, to be used as a drink, any intoxicating
beverage on election days, when by law an election is in
progress in said district, an<l subjects the offender to imprison-
ment for a term of not more than one hundred days, and to a
fine of not more than ^5(i().

Although the act of 1875 does not refer to any of these for-
mer acts, nor to the punishments ]>rovided for those offenses,
yet the construction claimed for the act of 1875 by the plaintiffs
in error would modify all those several acts and strike there-
from all power of the courts to sentence to imprisonment persons

308

AMERICAN CRIMINAL REPORTS.

convicted of the offenses therein stated. This is asking us to
assume too much. We are not questioning legislative power
to repeal or modily the sentences to be imposed. Wo are
merely considering the question of implied intention to be
gathered from tbe lin'"'"'i<];e used. We think the power given
to the court to senter .n :or the act of 1855 was in no miinner
repealed by the act . .7..

Judgment affirmed.

The People v. Dolan.

(51 Mich., 610.)
Jeopardy: Jury — Challenge.

1. A peremptory challenge is not allowable in a criminal case after the jury
has been sworn.

S. After the jury in a criminal case was sworn the prosecuting attorney was
allowed a ijeremptory challenge, and a new juror being chosen, the jury
was again sworn. Held, that so long as the jury first swon wius not
legally discharged, there could not be two juries sworn to try the .sumo
case : and a conviction by the latter jury was set aside and the prisoner
discharged.

Cramer i& Corhin, for responden*^^. appellant.

SuERwoon, J. The respondent in this case was convicted in
the Washtenaw circuit court of a violation of the statute re-
lating to closing saloons on election days. Act 259, Pub. Acts
1881. The consideration of the first exception taken by dofonil-
ant is alone sufficient to dispose of this case, and it will bo un-
necessary to consider any of the other exceptions, altliougli wo
think several are well taken.

After the jurx-- was impaneled, the prosecuting attorney was
absent from the court-room a few moments, and during sucli
absence the jury was duly sworn by the court to try the cause.
Immediately thereafter the prosecuting attorney returned into
the court-room and insisted upon his right to still examine tlie
jurors before they were impaneled and sworn, and the conit
thereupon permitted him to challenge peremptoi'ily one of the
jurors impaneled, and another was called and sworn in li"s
place, and the jury, as thus constituted, was thereupon sworn
to try the case. The proceedings were objected to by defiMid-
ant's counsel on the ground that a jury had already beo:i rog-

ADAMS V. THE STATE.

309

ularly impaneled and sworn in the cause, and further objected
to tlie serving of the jury in the case as then constituted.
The court overruled the objection, and defendant's counsel ex-
cepted, and the court then proceeded with the trial. This was
error.

The statute clearly points out the various steps required to
be taken in obtaining, impaneling and swearing a jury for the
trial of a cause in a court of record. 2 Comp. L., pp. 172G-

i7;n.

There can be no departure from these requirements without
tlie express consent or stipulation to that effect of the parties.
Only one jury can bo impaneled and sworn to try a case,
unless the jury first impaneled has, for some n ason, been
le^ially discharged.

In this case two juries were sworn to try the case, and the
(irst had not been discharged by the court when the trial com-
menced before the second, which rendered the verdict com-
plained of. We know of no practice or statute which will
allow a proceeding of this kind.

Tiic conviction should be set aside and the respondent dis-
charged.

The other justices concurred.

Note.— In Reg. v. Reeve, Lond. Leg. Obs. (Feb. 15, 1845), p. ni2, a case of
felony, a juror was taken sick and had to be removed after part of tho evi-
(lonco for the prosecution had been received. Sir. Justice Creswell there-
upon required a pliysician's testimony as to the juror's inability to continue
on duty, and then had another man sworn in his place. The prisoners were
allowed their challenge, and tliose witnesses who had been already exam-
ined were again called and sworn, and the judge read to each his own note
(if tho witness' evidence and had Ixim state whether it was correct. 3 West.
Law Journal, 95. — [Rep.

Adams v. The State.

(99 Ind., 244.)

Jeopaudy : Disclmrging jury — Release of prisoner.

Where, after the impaneling and swearing of a jury, it is ascertained that
a juror is incompetent to act as such on account of not being a free-
holder or a householder, and the accused refuses to object to the juror,
and the court thereupon, of its own motion, discharges tho jury, the ac-
cused has been once in jeopardy and should be released.

310

AMERICAN CRimNAL REPORTS.

J. 0. Branyan, M. L. S^encei', B. A. Kaufman and TF. A.
Branyan, for appellant.

G. W. Gibson, ])rosecuting attorney, «/. lu. Il'ddebrand and
61 IF. Wat /i- ins, for the state.

NiRLACK, J. This was a prosecution by indictment ac^ainst
Joseph J, Adams, under section 2204, K. S. 1881, for selling a
promissory note to the Citizens' Bank of Huntington, at Hunt
ington, Indiana, knowing that one of the signatures to tlie noto
had been obtained by false pretenses. Upon a former a])])oal
to this court the indictment was held to bo sufficient, and tlio
judgment below quashing it was reversed. iSuiie v. Adams, 92
Ind., 116.

After the cause had been remanded, and issue had been
formally joined by the entry of a plea of not guilty, a panel
of jurors was called to try it. A man known as Luther f 'ran-
dall was one of 'he persons tlnis called to serve as jurors in
the cause. Crandall was not specially interrogated as to his
qualifications as a juror, but others called with him were so
interrogated in his ])resonco and hearing. Before tlio jury
were sworn the court iufpiired whether all were cithei' free-
holders or householders of the county, to wliicli there was a
general response in the affirmative. After the jury were sworn,
but before any statement of the case had been made to them,
and before any further proceedings of any kind had been had,
Crandall informed the court that he had, by inadverten(".\ in-
correctly answered the court's inquiry as to some of his ([iiali-
fications as a juror; that he wr.s, in fact, neither a freijholder
nor a householder. The court then inquired of the defendant
whether he objected to Crandall as a juroi' on account of tlie
information which he, Cran(hill, had thus communicated to tlio
court, to which the defendant, tlirough his attorneys, responded,
"We decline to change the jury." The court, thereupon, over
the objection and exception of the defendant, discharged tlio
jury. The defendant then moved tliat lie be discharged and
permitted to go hence witliout day, upon the ground that he had
once been jdaced in jeoj)ardy, and that ho ought not, for that
reason, to bo longer held to answer the charge which a jury
had been imjjaneled, as above, to try. But the court ovci-
ruled the motion and proceeded to impanel another jury to ti'V

ADAMS r. THE STATE.

311

the cause, which resulted in finding the defendant guilty as
cluirgcd, and in sentencing him to the state's prison for a term
of two yt?ars.

It is a well settled rule that all objections to the competency
of a juror are waived by neglecting to use due diligence in
urging them, as well as b}' the failure of the party, afterward
complaining, to avail himself of such objections at the proper
time, after they have come to his knowledge. Kingoi v. State,
M\ Ind., lo2; (jIIooJoj v. State, .58 Ind., 1S2; Pattemjn v. State,
70 Ind., ;541; I IJishop, Crim Proc, sec. 040.

That rule applies especially to that class of disqualifications
whicli arise from a jiroposed juror not being either a freeholder
or liouseholdcr or a voter of tiie county. It is al;u) well settled
tliat when tlie ordinary forms of law have been complied with,
jeopardy attaches whon the jury are swoi'n. 1 Bishop, Crim.
Law, sec. lol-i; I Bishop, Crim. Proc, sec. 901; Muden v. Em-
moiist, So Ind., ;531.

When jeopardy has begun, and the jury are unnecessarily
and witliout tlio consent of tlie ])risoner discharged, such dis-
charge of the jury is e(]uivalont to an accpiittal, and the pris-
oner thereby becomes entitled to exemption from further
prosecution for the same olfense. Wn'(//it v. State, 5 Ind., 200;
Wt'i(jht V. State, 7 Ind., 324; Maden v. I'Jinmoufi, .sapra.

On that subject Bishop, in his work on Criminal Law, vol. 1,
section 1037, says: " The general doctrine, let it be repeated, is,
that if, after the jeopardy already explained has attached, the
jndge discharges the jury without the prisoner's consent, the
prisoner is entitled to be set at liberty, and he is not to be again
l)rought into danger for the same olfense."

As deducible from the authorities herein above cited, Adams,
the apjiellant in this case, waived' all objections in the first in-
stance to Criwulall's (pialifications as a juror by failing to make
any incpiiry upon the subject at the proper time, and when the
action afterwards taken by the court resulted in bringing out
the fact that Crandall was neither a freeholder nor a house-
holder, he still nuido no objection on that account. In all such
proceedings a failure to object is construed as implying con-
sent, and the declination of the appellant to " change the jury "
ought, under the circumstances, to have been interpreted as
meaning that ho was willing to proceed Avith the jury as it was

:}12

AMERICAN CRIMINAL REPORTS,

then constituted. There was, consequently, no sufficient cause
for discharging the jury at tiie time it was discliarged, and
the action of the court in that respect, having been without
the consent of tlie appellant, either express or implied, was the
equivalent of an acquittal of the offense which the jury were
impaneled to try.

It follows that the court below erred in overruling the apjKjl-
hmt's motion for his discharge from his arrest upon the indict-
ment against him, and that all subsequent proceedings based
upon that indictment were, in consequence, erroneous.

The judgment is reversed, and tlie cause remanded with in-
structions to the court below to discharge the appellant.

The clerk will give the necessary notice for the return of the
prisoner to the custody of the sheriff of Huntington county.

Note. — In Alexander v. Com., lOl Pa. St., 1, after the names of forty-
iiino jurors had been (h-awn from the box, which had contained sixty, and
«ight juror.s had been separately sworn, it appoiued tliut eleven of the pajjer
pellets had b jen clandestinely removed ; whereupon the court directed the
clerk to prepare eleven jjcllets in place of those which had been renioveiJ,
and aj^ain put all the pellets in the box; and furtlier ordered that the draw-
ing of the jury bo commenced de novo. It was held that the prisoner was not
in jeopardy at the time of making the order. " The trial begins when the
jury is charged, with the defendant, and that is at the moment a full jury
is impaneled and sworn ; he is not in jeopardy before. Up to that i)oint the
court may postpone the trial as lawfully at one stage of the proceedings as
another. A man is not in peril from the verdict of a jury till the full num-
ber are qualified to harken unto the evidence and make deliverance."

The Puople v. Casey.

(96 N. Y., 115.)

Juror: Qualifications of, ttndo' code.

1. Under code practice, as formerly, juror must declare on oath that
HIS verdict will not be ixpluen'ced by preconceived opinion.—
Under the Code of Criminal Procedure, 370, a man who has formed or
expressed an opinion in reference to the guilt or innocence of the defend-
ant is still, as formerly, disqualified to sit as a juror, unless ho declares
on oatli that ho believes such opinion will not influence his verdict, and
that he can render an impartial verdict in accordance with the evidence.
It is not sufficient to suppose merely that ho can determine the ca.se
according to the evidence, or tlmt his opinion ought not to influence \m
verdict.

THE PEOPLE V. CASEY.

313

8. Same. — Uiwn the trial of an indictment for murtlcr, a man called as a
juror, and challenged for bias, testified that ho had formed and expressed
an opinion as to the prisoner's guilt; that ho supposed ho would have to
determine tho cjiso according to tho evidi;nce, and wouUl have to go
accxirduig to the witnesses, but that ho still hatl an opinion which would
go with him into the jury box, and this he could not get out of his mind ;
that he could not help it; and tiuit it might assist in influencing his ver-
dict. To a (|uc3tion as to whether he would give liis verdict in accordance
with tho testimony of tho witnesses, ho did not reply. The challenge
wiis overruled. Held, error ; and that the juror was disqualilied.

3. Sami:. — Another juror testilied that he had heard and read about the case,

and had formed and expressed an opinion and still held it. He was then
asked if, notwithstanding such opinion, lie could sit as a juror and deter-
mine the case upon the evidence. To this he answered, " Well, I sup-
pose I could." Held, that tliis was not a responsive answer, and that
the juror was incompetent.

4. Same. — Another juror stated that ho had formed and expressed and still

entertained an opinion, and that he would go into tho jury box, if
accepted, witli a prejudice in his mind, which it would require evidence
remove. He was tiien iisked if tho impression lie had would at all
biitipe or influence his verdict. Ho answered, " Well, I would go accord-
ing to the e^ Idenco." Ho was iiskcd again if, apart from the evidence,
his previously formed impression or prejudice would aid at all in shap-
ing and forming his verdict. He answered, " Well, I dun't know that it
would." Ho wiis then asked, "Are you sure tiiat it would not V" He
answered, "No, 1 am not sure about that." Held, that it was error to
overrule the challenge.

5. Sami;. — Another juror who declared that ho had foriiKnl, expressed, and

still lield an opinion, wiis asked if, notwithstanding this, he could, as a
juror, determine the cixso according to tho evidence. He answered,
" Yes, I suppose I could." The challenge was overruled. Held, error.

6. Same. — All of said jurore, after the court had ruleil that they were com-

petent, were challenged peremptorilj- ;uid excluded from tlie panel. It
ai)peared that before the jury was fully impaneled all of tlie peremptory
challenges allowed defendant by law were exhausted. Held, that as by
the erroneous rulings he was obliged to uso his penniiittory challenges,
and was thus deprived of the right to cliallongo other jurors, he was
injured, and was entitled to a reversal.

Appeal from judgment of the general term of the supreme

COVU't.

Eakl, J. The defendant was put upon his trial for the crime
of murder, and interposed challenges for actual bias to several
persons who were called to act as jurors, which his counsel now
claims were improperly overruled.

The Code of Criminal Pi'ocedure, section 370, provides that
"the previous expression or fornuition of an opinion or im-

AMERICAN CRIMINAL REPORTS.

prossion, in rcforonco to the guilt or innoccnco of the dcfoiul-
ant, or a ])resent opinion or im[)ression in rcforonco tlieroto, is
not a suliicicnt <^T(>nn{l for challenge for actual bias to any per-
son otliovwise legally qualilied, if he declare on (uilJi tliat he
believes that sucli opinion or impression will not inllueiu'o liis
verdict, and that he can render an ini])artial verdict according
to the evidence, and the coui-t is satisliod that he does not en-
tertain such a pi'oscnt opinion or impression us wouhl inlhicnce
his verdict." That provision is substantially a re-enactuuMit of
soction 1 of the act, chapter i75 of the laws of iSTi*. Not-
withstanding the in'ovision, a person who has foriiictl or ox-
pressed an oi)inion or impression in reference to the guilt or
innocenc;^ of the dolendant is still, as formerly, distpialilicd to
sit asa juror, uidess three things shall concur: (1) lie must de-
clare on oalh that he believes that such opinion or im})vo.ssion
will iu)t inllucnce his verdict; (i^) he must also declare on oalh
that he helices he can render an impartial verdict according
to the evidence ; and (.'5) the court must be satisfied that ho docs
not entertain such a prcrsent opinion or hnpression as would in-
fluence his verdict. I'ldess these three things concur thu per-
son must now, as before, be excluded from the jury box.
Bulho V. P,i>i>h\ SI) X. Y., 481; C(m v. JVydc, id., noi); /'.•nj>I('
V. Coi'ne/f/\ [)'2 id., 85. The cases cited also hold that the de-
cision of the trial judge in such a case, overruling the challenge,
is reviewable in this court, and that it is our province and duty
to determine, upon the evidence elicited by the examination of
the person, whether or not he was a comi)etent junn*.

Charles Diividson was called as a juror, and upon his examina-
tion testilied that he had heard and read about the case; that
what he had read left an imj)ression on his mind, for or against
the defendant; that he had talked the case over with his neigh-
bors; that in conversation with them he had ex])re;sso(l un
opinion in reference to the guilt or innocence of the defendant;
that he still had the opinion thus expressed, and that he wiis
pretty sure he had said that he thought the defeiulant \v;u-;
guilty. This question was ])ut to him by the district attorney:
"Notwithstanding that you have heard or read of it, or niaV
have formed or expressed an opinion or impression, can you sit
as a juror, if selected, and determine this case upon the evi-
dence as you shall hear it from the witnesses ? " and he an-

THE PEOPLE V. CASEY.

315

gwcred : " 'Well, I suppose I could." The court ruled that ho
wiis a ^ood juror. .lamos Waldron was culled as a juror, and
tcstilicil upon his cxauiiuiition that ho liad heard and read of
tlio c'as(% and formed an opinion or iin})i'ession in reference to
it; and then the district attorney asked him this (juestion:
"Notwitlistandinj^ tliat, couUl you, in your opinion, sit here
as a juror and determine it entirely upon the evidence in the
cascT' and he answered: "Yes." Tpon his cross-examina-
tion ''e testified that he liad read in tlie newspapers a criticism
11} disscntini.;' juror upon a previous trial; that he had

f(,., .1 distinct impressicm as to the guilt or innocence of the
(lot'cn(hint; that he still iiad that impression; that it wouhl re-
(luire evidence to remove it ; and that he would go into the
jury hox, if acc{'])ted as a jm-or, with a prejudice in his mind,
as the result of the newspaper reading and the iulverse criti-
cism that he liad seen in the public press. lie was asked this
(iuesti(jn; "Would that dellnite, distinct impression that you
have in your mind, would it shape or shadow your verdict at
all.' " and he aunwered : " Well, I would go according to the evi-
dence, 1 think." There were further (ju<!stions and answers as
follows: Q. "• A])art from the evidence as it might he disclosed
to you on the trial, would this previously formed impression or
prejudice arising fi-om your newspaper reading aid at all in
shaping and forming your verdict?" ^1. " Well, I don't know
that it would." Q. ''Are you sure that it would not?" A.
"No, sir; 1 am not sure about that." Q. " And the impression
that you had, after thinking this matter all over, after reading
the newspaper articles, and after the conversation that you had
had with your neighbors, was a distinct impression, is with
you yet, and it would go with you into the jury box, and you
think might change, shade or shadow the verdict which you
would give on the evidence?" A. "Well, it might, but it
hadn't ought to.'' Q. "But you say that it might; you are
not sure that you could divest your mind entirely of that prej-
udice?" A. "Xo, sir.'t The court sustained the competency
of the juror. Warren Willis was called as a juror, and upon
his examination testified that he had heard and read of the
case, and this question was jnit to him by the district attorney :
"Notwithstanding that fact, could you determine it according
to the evidence if selected as a juror ? " and he answered : " I

310

AMERICAN CRIMINAL REPORTS.

suppose I could." Q. " That is your opinion, is it, that vou
could ? " A. " Yes, I suppose I could."' lie was then cross-
examined by the defendant's counsel, and ttjstilied that ho Jiad
read accounts of the homicide in newspapers, and then ho uas
(questioned, and answered as follows : Q. " Did the result of
your newspaper reading, or of any conversation that you mitrht
have had with any person, make any distinct impression on
your mind concerning the guilt or innocence of the accused?"
A. " Yes, sir." Q. "That impression is with you jet, is it?"
^1, " Yes, sir; I think it is." Q. " In addition to the formation
of an opinion, did you express any opinion as to the guilt or
innocence of the prisoner?" A. "Yes, sir; I did, here in the
court-room." Q. "Did you say you thought the defendant
Avas guilty, or words to tiiat effect?" A. " I might." Q. " You
did make that statement?" A. " Yes, sir; I think he is guilty,
from what I read." Q. "I am not asking what you think; I
ask you Avhether you said so?" ^.1. " Yes, sir; I thinlc I have
sjiid so."

The court sustained the competency of the juror.

Isaac Johnson was called as a juror, and, upon his examina-
tion by the district attorney, testified that ho had heard about
the case, and had an impression about it. These questions were
then put to him, and answered : Q. " Could you sit there as a
juror, and determine it according to the evidence in the case
without regard to anything that you may have heard outside ? "
^1. •' Well, according to what I have heard outside, I have my
mind about made up, I suppose." Q. " Notwithstanding that
fact, that your mind is about made up, could you sit there as a
juror and determine it entirely from the evidence which you
would hear in the trial ? " A. " I suppose I would have to."
Q. " AVithout any regard to what you liavc heard outside?"
^1. '* I suppose I would have to go according to the witnesses,
of course." Q. " And you would do it, wouldn't you ? " (No
answer.) Upon his cross-examination he tcstilied that he had
had conversation about the homicide with other people; tluit
there was an expression of opinion on the part of the other
})eople about it; that he concurred with them; that the way
ho heard the story, it seemed to him that the defendant was
guilty ; that he so stated, and that he was still a good deal of
that opinion. Q. " Was that opinion to the effect that the do-

THE PEOPLE 1-. CASEY.

317

fendant was guilty of the offense?" A. "It was." Q. " You
havecxprcssetl your opinion then?" A. "Yes, sii'." Q. "You
are of the same opinion now?" A. "Yes, sir." Q. "If you
were now accepted as a juror in this case, would you take
your seat in this box, having that opinion still in your mind?".
A. "Well, it would be still in my mind — I could not get it
out." Q. " Would that impression be in your mind during the
progress of the trial? " A. " It would still be in my mind, sir;
I could not help it." Q. " You could not help it ; and would
that opinion assist in framing or inducing you to frame your
verdict?" A. "It might, sir; I could not say about that."
Q. " It might tinge your opinion?" A. "It might change my
opinion." Q. " And assist in the formation of your verdict? "
A. " It might, sir."

The court held that the juror was competent.

It will be perceived that not one of these persons testified
that he believed that the impression or opinion he had formed
would not influence his verdict, or that he could render an im-
partial verdict according to the evidence. While the juror
Johnson stated that he supposed he woiild have to determine
the case according to the evidence, and that he would have to
go according to the witnesses (by all of which he evidently
meant tliat that would be his duty), yet he testified that he
had an opinion which would go with him into the jury box,
whicli he could not get out of his mind; that he could not
help it; that it might assist in forming his verdict, and he met
with silence the question whether he would go according to
the witnesses. Such a person is clearly incompetent to sit as
a juror. It would be grossly unfair and unjust, and against
all the traditions of our race, to compel any person to go to
trial before a juror in such a frame of mind. It is the object
of the laws, so far as possible, to obtain impartial, unbiased,
fair-minded men for jurors, who can divest themselves of all
previous impressions and try a case submitted to them upon
its merits and decide it according to the evidence. It is clear,
therefore, that he should have been held incompetent to sit as
a juror.

The other jurors named were not so clearly incompetent;
but they had all formed and expressed opinions as to the guilt
of the defendant, and their answers were not such as to qualify

318

AMERICAN CRIMINAL REPORTS.

them. It is impossible to say upon their cvidenco tliat they
were impartial jurors, who could fairly sit in jndgmeut upon
the defendant. AVhen persons called to sit as jurors are otlior-
wise incompetent from actual bias, they must be required to
make the declarations specified in tlie section of tlie code
quoted. They need not malce those declarations literally, but
they must make them in substance; that is an absolute pre
requisite; and then if there is nothiu*^ in their further exam-
ination materially impeaching such declarations, the court inav
receive them as jurors, if satisfied that their opinions and im-
pressions will not influeuce their verdict. These jurors did
not literally, nor in substance, make the declarations rccpiircd,
and hence it was the duty of the court to hold them incom-
petent for actual bias.

But these jurors, after the rulings of the court that tlicy
were com])etent to sit as jurors, were peremptorily challenged
by the defendant and excluded from the panel; and hence it is
claimed on the part of the ])eoplo that the defendant was not
harmed, and that ho was thus dei)rived of any objection wliicli
he would otherwise have. It is, however, admitted in the rec-
ord, tliat before the jury was fully im])ancled the defeiulant
had exluiustcd all the peremptory challenges allowed him by
law. lie was, therefore, by the erroneous rulingr of the trial
judge in holding these persons to be competent jurors, obliged
to use his peremptory clmllenges in case he desired to. If,
{"ifter Lhe ])laintiff had used as many ])erem])tory chalh^nges as
he desired, he had not yet exhausted all his challenges, it could
Avell be said that he had not been harnu?d. Hut where, by the
eiToneous rulings of the court, a defendant is obliged to ex-
haust his peremptory challenges, it is clear that ho is hai-nied,
that his rights are abridged, and that he has just cause to
complain.

This homicide Avas committed on the 1 1th day of March,
1SS8. On the 10th day of April the defendant was indicted.
On the 2;>d d.ay of April ho was [mt u])on his trial, and the jury
disagreed. The case was much discussed in the public press
and in the comnmnity, and there was adverse critiiisni of some
one or more members of the jury, lie was again put upon
his trial on the 21st day of May, while the homicide and the
former trial were still the subject of much criticism and con-

THE PEOPLE v. CASEY.

319

vci'sation. Under such circumstances it can be seen that the
defendant's right to challengo peremptorily was of groat value
to him, and it cannot be said that rulings of the court Avhich
abridged that right were not harmful. In the case of Burt v.
Panjaudy 09 U. S., 180, it was held that an error committed in
overruling an objection to a juror as legally disqualified is
cured where it api)ears aflirmatively that he was not a member
of the panel which tried the case, and it does not appear that
by his exclusion therefrom the party's right of challenge was
abridged. JMiller, J., writing the opinion of the court, said:
'•We are of opinion that since Holmes did not sit on the jury
no harm Avas done to defendant. The object of both motions
was to exclude him as one incompetent to sit. It is immatei'ial
to the defendant how this was Ijrouglit about. It is possible
that if defendant had shown ailirmatively that he was excluded
bv reason of his peremptory cluillenge, and that in doing so
the exei'cise of his right of jieremptory challenge had been
abridged, the result miglit be otlierwise. It is sullicient to say
that tlie record docs not sliow tluit he was on the jury, but in
fact that he was not, or that in getting rid of liim any right of
defendant was abridged or lost."

Jose[)li 1). Dowd was also called as a juror, and upon his
examination he testified tliat he had heard and read about the
case, and this tpiestion was put to him : " Notwithstanding what
you have heard and read about it, could you sit as a juror, and
determine this case upon the evidenced' And he answered:
*'Well, I sliould, of course." Upon his cross-examination, he
testilied tliat he luul read about the case in the newspapers,
and tliat it Iiad made an impression upon him which still re-
mained; tliat ho would bring that impression into the jury
Ikix, and that he thought it wouhl reipiire evidence to remove
it; that he had expressed the opinion that tiie defendant was
f,milty of murder, and that he still had that opinion.

The court sustained the competency of this juror, and he
was sworn and served as a juror. A\'e are of opinion that
this juror was not com[)etent. He was not asked to and did
not declare on oath that his opinion or impression would not
influence Iiis verdict, and that lie could render an impartial
verdict according to the evidence, or that he could weigh the
evidence impartially, lie diil not so declare in words or in

320

AMERICAN CRIMINAL REPORTS.

substance. Unless he did so declare, and could so declare, he
was incompetent, and in the absence of such a declaration he
should have been excluded. It is not sufiicient for a juror
simply to declare that he supposes he can determine the
case according to the evidence, or that he would go accord-
ing to the evidence, or that his opinion as to the defendant's
guilt ought not to influence his verdict, or that he supposes
that he Avould have to go according to the witnesses. The de-
fendant has the right to have the conscience and mind of the
juror tested by a declaration under oath, not simply that he
will be governed by the evidence, but by declarations wliich
chow that he believes he is in such a state of mind, so free
from bias and prejudice, that he can weigh the evidence im-
partially,' uniuHuencod bv any opinion or impression which he
has formed. As said in Bacon's Abridgment (Juries, E, 5),
" An honest but weak man may be so much biased as to think
he goes by the evidence Avhen his affections add weight to the
evidence." IndilTerency is one of the common law cliaracter-
istics of a juiy, and it is inviolably secured by the constitu-
tional guaranty of jury trial. A party put upon trial for a
crime has a constitutional right, by challenge, or in some other
mode, to protect himself against a biased jury.

Other exceptions taken during the trial to rulings upon
questions of evidence, and relating to the cliarge of the judge,
have been brought to our attention. But we do not regard
them as important, and they need not now be considered.

The judgment of the general term and of the oyer and

terminer should be reversed and a new trial granted.

All concur.

Judgment reversed.

Drake v. The State.

(08 Ala., 510.)

Justice of Tinj peace; Jurisdiction of — Autrefois convict.

1. Justice of the peace — Has no juuisdiction until a complaint is
FILED. — The power conferred on justices of the peace to hear and dotor-
mine prosecutions for misdemeanors cannot bo quickened into activity
until a complaint is made — until a cose is presented he cannot cxcrclso
jurisdiction.

DRAKE V. THE STATE.

321

Plea of guiltt when no complaint is made no bar to prosecution. —
A iKirty knowing himself guilty of a misdemeanor, who becomes his
own prosecutor, selects his own judge, confesses his guilt, and submits
to a judgment entered upon such a confession, cannot escape prosecution
in the appointed mode by pleading a former conviction brought about
under such circumstances — such judgment of conviction is a nullity.

From County Court of Madison. Tried before Hon. William
Richardson, Judge.

John D. Weid^n, for appellant.

IT. C. Tompkins, attorney-general, for the state.

Bbickell, C. J. The appellant was indicted in the circuit
court of Madison county, tlie indictment containing two counts ;
the first charging gaming, the offense denounced by the
statute (Code of 1876, § 4207); the second charging the offenge
of hotting at a game of cards or dice, or at a gaming table,
etc., denounced by the statute (Code of 1870, § ■i'2'Jd). The in-
dictment, under the statute organizing the county court of
Madison county, was transferred from the circuit court to
that court for trial. The appellant interposed a plea of former
conviction, before a notary public and ex ojlcio justice of the
peace. The plea averred that, on the 0th day of February,
1882, the defendant was by the notary convicted of the offense
charged in the indictment, and set out tlie record of the pro-
ceedings and judgment; from which it appears that, on the 0th
(lay of February, 1882 (the first day of the term of the circuit
court at which the indictment was found), the defendant ap-
peared before the notary public, without complaint having been
made, or process issued against him, and stated that, within
the preceding twelve months, he had at a particular place,
within the county of Madison, violated four different times the
statute against gaming, and the statute against betting at a
f^anie of cards or dice, etc., but the particular times or occa-
sions he could not remember. To such violations of the statute
he pleaded guilty, and the justice sentenced him to pay a fine
of i^loo. The state demurred to this plea; the solicitor speci-
fying, as the sole ground of demurrer, " that the plea does not
show that there ever was a legal conviction of the defendant
in any court of the state of Alal)iinui authorised to try such
cuses." The demurrer was sustained; a trial was had on the
Vol. IV — ',»!

322

AMERICAN CRIMINAL REPORTJ

plea of not f^uilty, and there was a verdict of guilty as;;or)3in"
a fine of $100 against the defendant, upon which judgnioat
was rendered.

The constitution authorized the* general assembly to confer
jurisdiction of prosecutions of misdemeanors on justices of tlio
peace, or such other inferior courts as may be established by
law, dispensing with the presentment of a grand jury. By an
act approved February 8, 1877 (Pamj)!!. Acts 1S7C-7, p. 107),
justices of the peace in ^ladison, and several other counties,
were clothed with original jurisdiction, concurrent with that of
the circuit court, of all misdemeanors committed in the comity.
It is expressly provided, however, that all proceedings under
the act must conform to, and bo governed by, the general stat-
utory provisions embodied in the code regulating proceedings
in criminal proceedings before justices of the peace. The sub-
stance of these proceedings is, first, a com])laint on oath,
charging the person accused of an offense of which the jn:;tico
had jurisdiction. This is the first step taken in the initiation
of the prosecution, and it must be taken before the jurisdiction
of the justice can be called into exercise. The power con-
ferred on the justice is the power residing in the circuit court.
It is power to hear and detei-mine prosecutions for misde-
meanors. The power cannot be quickened into activity until
a complaint is made — until a case is presented, bringing it
into exercise. The power to hear and determine a cause is juris-
diction. "Before the power can bo ailirmed to exist, it nnist
be made to appear that the law has given tlie tribunal capiicity
to entertain the complaint against the person and tiling sought
to be charged or affected; that such complaint has iu-tuiilly
been preferred ; and that such ])erson or thing has been biouglit
properly before the tribunal to answer the charge tlicrcin con-
tained." Sheldon v. Newton, 3 Ohio St., 480. It cannot bo
admitted, for a moment, that the constitution or statutes con-
template sucli a proceeding as that now relied on as a bar to
this indictment; that a party, knowing himself guilty of a
misdemeanor, should become his own prosecutor, select liis
own judge, without notice to the state or any otiicer authorized
to prosecute in its behalf, confessing his guilt, submitting to
judgmont, and esca|)e prosecution in the appointed mode, in
])roce(!dings in form and effect adversj'.ry, in which the state

MURPHY V. THE PEOPLE.

S23

has tlio opportunity of bein,;j hoard and of vindicating its laws.
If the proceeding was civil, involving private rights, it would
not be pretended that a plaintiff could be barred of his right
to a fair trial in the modes ajjpointed by law, by the appear-
ance before a court and the confession of judgment by tho
defendant, of which he had no notice, and in tho rendition of
which lie haol no agency. The ])rococding and judgment before
tlic notary were coram nonjndlce., — a mere nullity, — and can-
not oi)erate as a bar to tho present indictment. State v. Little^
1 N. II., 257.

The demurrer was properly sustained, and tho judgment of
conviction must bo allirmed.

MuKPUY V. The Peoplts. '

(104 111., 528.)

Larceny: Fraudnlent convernion — Joinder of counts — Variance — Newly
discovered etndence — Questioning competency of counsel.

1. Larceny — Pautino voluntarily with possession and title.— If the

ownt'v of the goods alleged to have boon stolen parts with both the
possession and tlife title to the goods to the alleged thief, then neither
the taking nor the convei-sion is felonious.

2. Otherwise when the owner intends that they shali. be returned

TO iilM. etc. — But if the owner parts with the possession volun-
tarily, Init <l(!es not part with the title, expecting and intending that
the goods shall be returned to him, or that they shall be disposed cf
on his account, in u particular way, as directed or agreed upon, for
liis benefit, then the goods m >y Ik.' feloniously converted by the bailee,
Ko as to relate back and make the taking and conversion a larceny.

3. Joinder op counts — Larceny and embezzlement.— Joinder of em-

hozzloment with larceny is in accordance with the well-est.ablished
practice.

4. Variance. — One C. entered a place of business kept by F. to make a

purcliiuse, and handed a twenty-dollar coin to F. for the purpose of
paying for the article purchased by him and receiving his change. P.
being unable t,i make the change handed the coin to M. and requested"
M. to g.>t it changed. M, tfM)k the coin, went out and never returneJ
with it or the change. He'd, that the property in tluj coin was properly
laid in C, as no title «'ver passed to F.

5. Newly DISCOVERED evidence.— Where the la'isoner, ui)on a motion for

ii new trial, jiresented attiilavits of persons wlio stated that the prisoner
did. on the day of the alleged larceny, nuike elforts to get " change" of

TT^r.-T^-.

824

AMERICAN CRIMINAL REPORTS.

a certain coin, held not material, as the offense charged was not in fail-
ing to get the money "changed," but in failing to return it, and in
appropriating it to liis own use.
6. Questioning competency of counsel assigned to defend an accused
PEKSON. — Wlien the court below assigns counsel for the defense of an
accused person, it will be presumed that he was fully competent to dis-
charge the duty assigned him. His competency cannot be made an
issue on a motion for a new trial.

AVi'it of Evi'or to the Circuit Court of "Will County; t'ae
Hon. J. McRoberts, Judge, presiding.

Messrs. Ilaley <& O'Donnell and Mr. J. R. Flcmders, for the
plaintiff in error.

Mr. James McCartney^ attorney-general, for the people.

Mr. Justice Scuolfield delivered the opinion of the court.

Plaintiff in error and John Fay were jointly indicted for
the crime of larceny. They were jointly tried, and the jury
found plaintiff in error guilty, and Fay not guilty. Judgment
ivas entered upon this verdict, after overruling a motion for a
new trial, and this writ is prosecuted to reverse that judgment,
for several errors alleged, which we shall proceed to briefly
consider.

First. It is claimed the verdict is not sustained by the evi-
dence. The undisputed facts, as proved on the trial, are : One
Coskey, and a friend accompanying him, entered a saloon in
Joliet, kept by Fay, and procured drinks, and Coskey, not
having the exact amount of money with which to pay for the
drinks, handed Fay a twenty-dollar gold coin. United States
coinage, for the purpose of making " change." Fay, on look-
ing over his money on hand, said he couhl not "change" it,
and thereupon jjushed the coin towards plaintiff in error, who
was at the time standing by the bar, and re(|Uostcd him to go
and get tlie coin "changed." Plaintiff in error took the coin,
left the saloon, and never returned or accounted for the coin.

The case seems, in all its essential features, })rocisoly hke
Farrell v. The Peitple^ 10 111., 500. There one Ilennis gave
Farrell, who was a hack-driver, a five-dollar bill to 1)(>
^'changed," in order that Ilennis might pay Farrell twenty-
five cents. Farrell did not return with the bill or the " chang(>."
This court held he was guilty of larceny.

MUKPIIY V. THE PEOPLE.

325

In Weliih et al. v. The People^ 17 111., 339 (a case similar in
the controlling principle to that in the present case), it was
said : " Where, as in this case, the alleged larceny is perpetrated
by obtaining- the possession of the goods by the voluntary act
of the o\vner, under the influence of false pretenses and fraud,
when the cases are carefully examined and well understood,
there is no real difficulty in deducing the correct rule by which
to determine whether the act was a larceny and felonious or a
mere clieat and swindle. The rule is plainl}"^ this : If the owne?*
of the goods alleged to have been stolen parts with both tho
possession and the title to tho goods to the alleged thief, theu
neither the taking nor the conversion is felonious. It can but
amount to a fraud. It is ol)taining goods under false pretenses.
If, however, the owner parts with the possession voluntarily,
but does not part with the title, expecting and intending that
the same thing shall bo returned to him, or that it shall bo dis-
posed of on his account, or in a particular Avay, as directed or
agreed upon for his benefit, then the goods may be feloniously
converted by the bailee so as to relate back and make the tak-
ing and conversion a larceny. The pointed inquiry in such a
case must always arise, did the owner part with the title to the
things, and was the legal title vested in the prisoner?"

Again, in Sthisoti v. The People, 43 111., 3U7, the same doo-
trine was reiterated. It was there, among other things, said:
"If, however, the owner parts with the possession voluntarily,
but does not part with the title, expecting and intending tho
same thing shall be returned to him, or that it shall be disposed
of on his account, or in a particular Avay, as directed or agreed
upon, for his benefit, then the goods may be feloniously con-
verted by the bailee so as to relate back and make the talcing
and conversion a felony, if the goods \vere obtained with that
intent."

This settles the law in this state, but analogous rulings, else-
where, may l)e found in the following cases, referred to in
argument by the attorney-general: Ba'dei/ v. The State, 58
Ala., -ill; Commonwealth v. Barnj, 124 IVIass., 325; State v.
W/'/h'aninoH, 1 Iloust. Crim. C, 155; State v. Anderson, 25
^linn.. «(»; People v. Abbott, 53 Cal., 284; Elliott v. CommoTir
W'd/fh, 12 Ihisii, 176; Maehw v. People, 19 N. Y., 127; Com-
moinocalfh r. I find, 123 Mass., 438; People v. McDonald^ 43 N-
Y., (}1; midehmnd v. People, 56 id., 394.

82C

AMERICAN CRIMINAL UEPOliTS.

No mitigjitinj[^ or cxtcniuiting circumstance was given in evi-
dence, and no ground is tljerof<>]'o appaient upon which it can
bo said the verdict is not susla'nod by tlicevid;>nco. Tlic proof
on belialf of the prosecution made a case, and that proof is in
-no manner overcome or impaired by countervaihng proof on
behalf of phiintiff in error.

SccoaiL It is argued the second count in the in<lictuK;nt is
.for embezzlement, and it is bad. Sup})ose it is, the lirst count
is undoubtedly good, and that is sullicient to sustain the gen-
eral verdict of guilty. Toicnscnd v. The Penph,^ Scam., 1)2!);
iJIolliday v. The People^ 4 Gilnj., 113. But if the counts bo both
good, and wo tliink thoy are, inar.m'.ich as it is evidently but tho
Statement of tho same felony in different forms, tho joinder is
not objoctionablo. L;jom ct al. v. The People^ G8 111., 275.
Joinder of embezzlement Avith larcenv is in accordance with
the well established })ractic3. 1 Wharton's Criminal Law (Ttli
ed.), latter part of section 42t>, and cases I'cferred to in note v.

And it may also bo pro])ei"ly here added, tho objection tliat
thoro is a varianco botweon tho proof and tho second coiuit (if
it were important to consider such a (juestion when it docs not
f.lso lie to the first count) is untenable. The averment that tho
dolivci-y was to the piaintilf in error is literally su.^taino;! as
to that act. Fay is to bo regarded as tho agent of C^jslcc y. and
the rule applicable is, what tho principal docs by an agent ho
docs by himself.

Third. Coanrjol for plaintilT in error contend tlio property
tore was not properly laid in the indictment as the pi-opcrty of
Coslcey. Wo cannot yield our ar.sont to this view of tho law.
In all tho cases before reforred to on tho (piestion of tho ciiar-
acter of tho olfenso made out by the un(|uestioned facts, a
contrary doctrine is announced. Tho projioty may bo alleged
in the indictment as tho proi)crty of the real owner, or of any
person having a special ])roj)erty in it as bailco. 2 liussisU on
/Crime.'? (7th Am. ed.), >^'i, JK); 2 Wharton's Criminal Law (7tli
cd.), sec. 1818 ei seq. I'ut clearly no titlo here pansed to plaint-
iff in error. There was no intention he should become owner.
lie was simply to perform a duty in regard to the juoixMty,—
*' change" it, — that is, convey it to one who would give what,
in popular language, is denominated "change," viz., bills, or
gold or silver coins, or some of each, of lessc/ denomina-
tions, in amount of oqu.al value, in exchange li r it. and return

MURPHY V. THE PEOPLE.

327

tliia "cliango" to Coskoy. FiMxtch v. Brown, IC 111., 7-4,
cited juid relied upon l>_v coimsol for a|);)clliint, doos not airecit
the (juration. In that case, Avliat was decided was simply that
a i>arty '" changinj^" money for an asjent, supposin;^ him to bo
acting as principal, may proceed against cither the a'jfcnt or
the i)rinci[)al, when he discovers him, in the event of a right of
action growing out of such "changing" of money. The agent
Avas there held liable because the ])rjnci))al was not known and
trusted, but there wouhl not have been the slightest objection,
had the party so elected, to holding the real ])rincipal liable.

It may bo, had this coin l)een alleged to have been the prop-
erty of Fay, plaintiff in error could not have objected to his
title, but this furnishes no ol)jection to the property being
alleged in the real owner. In point of fact, no title ever passed
to Kay. It was passed to him just as he passed it to plaint-
iff in error, not to invest title, but to procure it to be changed
into (or, to speak more accurately, exchanged for) bills or
coins, or a combination of each, of smaller denominations, in
an aggre ;'at(5 amount and value equal to it, and as to that act
he was, legally, the agent of ( •oskey.

We cannot perceive that AVA,* t'. The People, 81 111., 500, has
any bearing \\\w\\ the case. There the indictment was for lar-
cany only, as at common law, while here we have a count for
larceny as at common law, and a count for embezzlement, and
hence if the proof su:;tains either the conviction must stand.
B.it from the authorities cited, and what has been said, it must
b^ evident, we are of opinion, the evidence sustains the count
for larceny as at common law.

The alHdavits in suj)port of the motion for a now trial dis-
close no sullicient ground. Two of thom merely show efforts
of the plaintiff in error to get money " changed" — v.'hat money
is not coadusively shown. Ikit even if it were this for tho
stealing of which he is convicted, that fact does not even tend
to sliow his innocence. Ilis offense is not in failing to get tho
money "changeil," but in failing to return it, and in appropri-
ating it to his own use. Doubtless his own convenience required
that it b;? '* ch;inged." The only other affidavit is that of plaint-
iff in error that he was intoxicated, and. by reason thereof, ob-
livious of all he did in regard to this money. Waiving comment
upon some inconsistencies and improbabilities in this allidavit,

828

AMERICAN CRIMINAL REPORTS.

"we deem it snfTlcient to say, the court below assignefl plaintiff
in error counsel for his defense, who, wo must prcsunio, was
fully competent to the duties assij^ned him. Neither plaintilf
in error nor that counsel deemed it advisable to inti'oduco
plaintiff in error, or any other witness, to make that proof upon
the trial, nor was a continuance aslced to ol)tain evidence in
that regard. We cannot permit the competency of counsel to
defend j)ersons charged with crime to bo thus introduced as in
issue on motion for a new trial.

Perceiving no error in the record, the judgment is affirmed.

Judijitient affirmed.

Note. — Joinder of counts — Larceny — Embezzlement, — In People v. De
Course!/, 01 Cal., 134, it is lield that larceny and embezzlement are sejjarate
and distinct oiTenses, — tliat in the case of larceny the taking must be with
a felonious intent, but that in embezzlement the original taking is lawful,
and the crime consists in the fraudulent appropriation of property by a per-
Bon to whom it has been intrusted, and, therefore, it is error to join counts
for larceny and embezzlement in the same information. The decision wa.s
based upon a statute of that state which provides " that the indiitnieiit
must charge but one offense, but the same offense may be set forth in dif-
ferent forms under different counts, and, where the offense may be com-
mitted by the use of different means, the means may be allegeil in the
alternative in the same count." In Iowa the statute is substantially the same
as in California, with a, proviso "tliat in case of compound offenst^s, whert;
in the same transaction more than one olTejiso luis been committed, the
indictment may charge the several f)ffensea, and the defendant may Ihj con-
victed of any offense included therein."

In the case of The State v. Hni/den, 45 Iowa, 11, the defendant was found
guilty upon an indictment for breaking and entering a store with intent to
commit larceny, and which also alleged that the defendant did tal:e, steal
and carry away the goods described; the tourt held that the indictment
charged but one offense, that of breaking and entering with intent, etc.,
and that the allegation that ho actually committed the larceny v.onld be
regarded as surplusage. It is evident from the language of the court that
the indictment contained but one count, and the motion in arrest was pro|)-
erly overruled, whatever the rule might be on a motion to quash the in-
dictment. In the later case of The State v. Ridley and Johnson, 48 Iowa,
370, the indictment contained but one count, in which it was alleged that
the defendants in the night-time unlawfully, feloniously and burglariously

did break and enter the store of one John Slatten, etc with intent

then .ami there the goods, chattels, money and property of the said John
Slatten, in the said store then and there being, then and there unlawfully,
feloniously and burglariously to steal, take and carry away ; and two cad-
dies of tobiicco of the value of $12 each, ... of the personal goods,
chattels and property of, etc., in the siiid store then and there being found,
then and there unlawfully and burglariously did steal, take and carry away,
etc.

MURPHY V. THE PEOPLE.

329

Tlio trial court instnictftl the jury tlint in the fuctH set forth in thn in«lict-
nicnt were included the t-riine of liirceny in a Htoro in the nipht-time, the
crime of brcakin<^ and entcrinp; a store witli intent to commit larceny, and
the crime of simple larceny. The defendants were found f^iilty of larceny
fioiii a Htore in the ni<^l>t-tinu', and the sniiromo court reverseil the case on
tlie f:;r<mnd that hreakin.j; and eiitiTinj; witii intent to commit larceny, and
Inrceny, were not "compound olfcnHes" within the meaning of the statute.
Tiuf learned jud-^es who wrote ojtinioas in the case I'ecognize the difliculty
in (Icliiiing, with exactness, the meaning of "compound olfeuse-s," but con-
tend tl.it the breaking and entering witli intent and the larceny are not
coniiMittcd by the same act or tr.ansuction at the same point of time. Upon
the authority of the latter cas;\ in The Sliitc. v. McFurland, 49 Iowa, 99, the
«!ourt held that an indictment which charged burglary and larceny in two
counts wiis bad for duplicity. In Tlie State v. McCormick, 50 Iowa, 585,
an 1 also ni ^':tte v. Henri/, 59 Iowa, i390, the court held that forgery and the
uti ringof forged paper, et(\, are separate and distinct oltenses, and tnat
tlicy cannot both 1)0 charged in one imlictment.

TItc general rule. — The general, and, as it would seem, the better rule,
would be in cases of breaking and entering with intent, etc., to hold the
l)iv:iking and enti'ring as aggravations of the ulterior offense. It might
happen, as it lias happened in many instances, that the prosecutor could not
jnove beyond a doubt a t.'chnical breaking, and if the indictment contained
agooil count for larceny, and tliat offense wiis fully proved, it would serve
ti) prevent a faiime of justice. No prejudice could result to the accused
from such a rule, a:< the prosecutor, after introducing his testimony and before
the .hcuschI would be i)ut to his defense, wouM ordinarily be compelled to
I'l' > t \lii( II count he would claim a conviction.

Mr. Cliici .fustice Tilghman. in Uiirmoa v. The Com., 12 S. & R. (Pa.), 69,
liiys down safe rule for tiie guidance of courts in matters of this nature,
la tliat c. ( here were two counts in tiio indictment, t>ne for rape and the
I'tlier for an assault with intent to ravish. The court, overruling the objec-
liou iaise<l a-sto the joinder of the counts, say: "There could be no surprise
t'> him, nor any dilUcuIty in defending himself against both charges. In-
deed, if he was guilty o'' the rape, he must have been guilty of the assault
witli intent to ravish; and, if he wis not guilty of the assault with intent
to ravish, he could not be guilty of the rape. So that when he jirepared for
defense against one count, he must n(!cessarily prepai'e for defense against
the otiier. ... It may be i)roper to remark, here, that when two of-
fenses are charged in -I'liate counts, if tlie defendant can make it appear
that this mode of prot ding will subject him to unreasonable difficulty or
eiubarrassment on his trial, the court have it iu its power to protect him by
quosliing the indit;tment, or compelling the prosecutor to elect on which
count he will ])roei>ed, iind discharge the defendant from the other."

Motion to elect. — There is considerable conflict of opinion to be found in
the decisions as to when a motion will lie to compel the prosecutor to elect
on wiiich count lie will proceed, when the indictment charges several felo-
nies; and, as ty the time when such motion should be made. The following
is Mr. Wharton's deduction from the authorities;

1. Cognate ollenses may be joined in separate counts in the some indict-
ment.

330

AMERICAN CRIMINAL REPORTS.

3. If this is done in such a way as to oppress the defendant, the remedy
is a motion to quaah.

8. It is permissible, in m;wt states, to join several distinct olTunses, to
each of which fine or im;jiisaiim.»:it is attajliablu; auJ upon conviction on
cac!i count, to impose a sentence on each,

4. Yet as to oiTenses of hi^h grade in all the states, and in some states as
to all offenses, the court will not permit more than a single issue to go to
the jury, and hence will respiire an election on the close of the prosoju-
tion's case, except in tliojL* cases in which the offenses are so b!ende:l tliat
it is eminently for the jury to determine which count it is that the evi k'ai;o
fits. V/harton's C.'im. PI. anl Pr., soo. 2D1, CMi eJ. Sjo, al;)o, 1 Bisliop
Ciim. Pro., oh. 33, 3i ed.

In State v. Johnson, 3 Harrington (D3I.), 531, the court say: " When sav-
cral felonies of tin sama kind are chargjJ in several counts, the court will,
on motion, compel tlia attjr;ioy-;jenaral to elect oa wliich count ho will pro-
ceed."

In Coodhue v. The People, 9t 111., 37, the court nay: "If two or more of-
fensos form pai't of one transaction, and are sujh in nature that a defcnidant
may bo guilty of botli, the prosecution will not, as a general rule, bo ])ut to
an election, but may proceed under one indictmLiut for the several oir.'a.sus,
thou ;h t'.u'y h?, felonious. The ri^ht of donianLliu,^ an election, and tlio
limitation of the proaejutl >n to one off-'iise, is confine.l to char,;o^ \\\\\c\\
are actually distinct fiom ea.-li other, and do not form parts of on(! and tlio
same transaction. In misdemeanors the prosecution may, in the discretion
of the court trying the case, be re;iuireJ to confine t'.iu evidence to one
offjnse; or wlicn the evidonce is given of two or m:)re off in.ieo, may bu ro-
quh'c 1 to elo.:t one (ihai^je to b:> su'oni'.tte 1 to t!i3 jury ; but in ca ji.vi of fel-
ony it is the ri,"jht of tlie a?cuse.l, if he d<;man 1 it, that he be not put u])on
trial at the sani,' time for m )rj t'lan o:\i olfjn.^j, exv'pt in ca les where t'ao
several oiijas.M are rej;)jjtivjly pari^j of thj sa.uj transaiitio-i," Hjj, also,
Wharton's C. L. (fjth eJ.), sec. l^JJr.

The expre:!sion, "char;;!S which are actually distinct from each ollior,"
leaves the above opinion somewhat, involve;!. But its evident m(>aniii,"; is
"charges which are actually distinct from each other" oidy in jioiiit of
time, because it would be highly improper to introduce in an iudiclnicnt
for murder a count for larceny, although both offenses mi,';lit form part of
one transaction.

It is evident that much discr;'tion mnrit be repoied in tlu? trial comt as to
tliose "cases in which tho offenses are so blended that it is eminently for
the jui-y to determine which count it is that tlie evidence fits;" but a niani-
fe.;t e.-ror of judgment prejudicial to the riglits of the accused, like otlier
errors of a judicial nature, slionld be tho uubjejt of review. Tii." tiuie
when the motion should be entertained must rest lar ;;ely in the discn'tion
of tlie court. But it would seem fair to the prosecutor that in thotic cases
where a joinder of counts is permissible, that hn be not compelleJ to elect
until after his evidenco ij Lntroduvied, and buforo thu accused is put to liiB
defense.

ADAMS V. STATE.

331

Adams v. State.

(15 N. J., 449.)

Lauceny: General owner — Stealing from special.

1. A general owner of goods may be guilty of larceny in stealing such goods

from a special owner.

2. To constitute a crime of larceny in such cases, tha taking m^:2t bo felo-

nious.

A. Kalisch, for plaintiff in error.
W. li. Wilson, for the state.

Tiie opinion of the court was dclivcrod by

Knapp, J. The plaintiff in error v/as indicted for grand lar-
ceny at tlie May term of the Union oyer and terminer, tho
indictment charyiiii'' hor with havin;^ feloniously stolen certain
goods and chattels as tiie property of Thomas W. Sloan, abovo
tho value of $20. She was tried before the quarter sessions of
that county, convicted upon the trial, and sentenced to nine
months' imprisonment at hai'd labor. Tlie property was levied
upon by Sloan as tlio property of (^'atherine Adams, under an
execution wliich Sloiin hehl, .is constable, against her; the con-
stable allowed the goods to remain at the house of the plaintiff
in error, the j)laco of tho levy, she bojig informed of the levy.
Before the time for sale under tho execution, the plaintiff in
error toolc and disposed of the goods.

The case comes uj) on exceptions to the refusal of the court
to charge as requested, and upon the charge as made. Tho
assignments of error i)resent the question whether larceny may
bo committed by the general owner of property in taking it
from one \\\\o has the sjiecial ownership, without felonious
intent in such taking.

It is impossible, under ordinary circumstances, for one to
commit larceny in taking possession of his own property, and
the general owner of goods, in their lawful possession, has full
dominion and control over such goods: but it seems to bo well
settled in the law that larceny may be committed by a man
stealing his own pi'OjHn'ty, if iho taking be an lino fnramU, or
with a fraudulent design to charge the bailee with the value of
it. There is a passage found, as eaily as the time of the Year

332

AMERICAN CRIMINAL REPORTS.

Books, in which it is said, " if I bail to you certain goods to
keep, and then retake them feloniously, that I should be hung
for it, and yet the property was in me." This passage is found
repeated in all the leading criminal treatises, but with the addi-
tion that the goods be taken with the fraudulent design to charge
the bailee with their value. 1 Hale, P. C, 513 ; 4 Bl. Com.,
331; 2 East, P. C, 558 ; Ros. Crim. Ev., 650. As if one delivers his
goods to another, as his servant or bailee, and tlien steals them
from sucli servant oi* bailee, with a fraudulent intent to charge
him with their value, this would be larceny in the owner, al-
though he might have had their possession through the lawful
assertion of his title. On an indictment for larceny against
such general owner, the property in the goods stolen may he
laid as that of the si)ecial owner. The general property of
goods levied on by execution is in the debtor, and renuiins in
him until they are sold for the purpose of satisfying the execu-
tion; but the officer who levies acipiircs a special property in
those goods which entitles him to their possession uutil satis-
faction be made of the execution. JJ'dlenhack v. Jerome, 2
Cow., 293; Smith v. Burtis, G Johns., 19<>. The defendant
asked tlie court to charge the jury that there was a variance
in the allegation of property in Sloan, and the proof U{)on the
trial; that, therefore, the defendant should not bo convicted.
This the court refused to charge, and the evidence is brought
here for examination as to the correctness of the court's action in
so refusing; but upon the evidence it appears that Sloan, as
ah'eady stated, had a special property in the goods, and they
were, thcT'cfore, pi'operly laid as his goods in the indictment.
There was no error in refusing so to charge.

The next exception is as to what the court did charge on the
subject of ownershij). By tlie bill of exceptions it api)ears
that the court said that by virtue of the execution and levy
"the constable became the owner of the goods levied upon
until sold by him, and that if she took the goods, or assisted
any one else in the taking, she is guilty." The part of the
charge contained in this bill of exceptions is all wo have of it.
It would seem to be a sufficient statement of the law defining
the rights which the constable acquires in virtue of a levy.
It was made by the court in answer to the objection that the
true ownership was not alleged in the indictment, and, as re-

ADAMS V. STATE.

333

>]>ccts that question, the instruction of the court was correct.
The constable's ownership was a qualified one, it is true, but it
was sufficient to support the averment. The further statement
in that portion of the charge, namely, " that if she took the
goods, or assisted any one else in taking them, she is guilty,"
may be subject to more criticism. It certainly is not a full
presentation of the law. It is not every sort of taking of
tlicse goods that would make her criminally liable. It might
have amounted to no more than a trespass or a conversion of
tlie property as against the officer. The goods were left in her
custody by the officer. As between them she may have been
considered as a mere receiptor for the goods, with the right in
the officer to de})rive her of her possession and assume it him-
self. But she not onl}'^ had their actual custody but was as
well tlie general owner, .'ind could at any time before sale, by
paying the judgment, remove the officer's hands entirely from
lier property. Now, unless her taking the goods was under
sucli circumstances as in some way to fraudulently charge him
witli their value, it is difficult to find any recognized rule of
criminal law that would hold her answerable for larceny.

This case fails in resemblance to that of Palmer v. People^
10 Wend,, 106, in this important feature: Palmer was con-
victed of having feloniously stolen property of one Jennings,
'who, as constable, had levied upon property by virtue of an
execution against Palmer. The goods, by the officer's consent,
remained with Palmer, who subsequently sold the shingles and
charged the constahle with having taken them away, and
brought suit against him for their value upon that false allega-
tion. This proof was held sufficient on the ground that it
charged a felonious taking of his own property, with intent to
charge the constable with the value of it, bringing the case
within the rule above stated as the ground of criminal liabil-
ity. Tn this charge is found the broad pro})osition that any
sort of taking or conversion by the general owner of property
loft in her possession l)y a coiistable possessed of the I'ights
which a levy gives him, is a criminal act, and that of larceny.
No fraudulent or evil design existing in the mind of the de-
fendant is charged or intinuited to be a necessary element of
guilt. It would not be every taking by a mere stranger of
these goods from the possession of the constable that would

"W"

334

AMERICAN CRIMINAL RI^PORTS.

amount to larceny. A felonious intent would bo a rcqiiisito
ingredient in sucli crime. A convcivsion of the goods i)y a
stranger wlio ha I baen appaintod their kei^per by a con5tiil)lo
would not have been a crime but a civil wrong merely. To
hold the general owner in possession to a severer rule seems to
mo to savor of illegal severitv. I am unable, in the researcjies
I have made, to find any case which wiirrants the ascripti;)n of
criminality to such facts. The case of /icx v. WUkhison, Iluss.
& Ry., 471, Avhich goes as far as any other that I have found,
presented the features of ilagrant fraud on the part of the de-
fendants, who Avero the real owners of the property, upon
cither the prosecutors or upon the crov>n. As to which, tlio
judges were divided in opinion. If Ave are permitted to look
into the evidence which is handed us Avith the record, one can
scarcely escape the conclusion that, if the rule had been stated
to the jury Avith the proi)er qualidcation, they must have failed
to find in it CAudence of such felonious design as Avould have
raised the o!Tense above that of a mere civil injury.

Whether the judge in other parts of his charge qualified
the expressions in the opinion excejited to, Ave have no means
of knowing; the charge is not before us. Wo have nothing
but this pointed statement of his views of the law. AVe must
assume that this embraced his entire instruction to the jury
upon the legal requisites of guilt, and it was erroneous in a
Avay that must have prejudiced the defendant in her trial. I
think the judgment for this error should be reversed and a
new trial ordered.

Peoi'lk v. Lkono Quo:ro.

(GO Cal., 107.)

L.\uceny: Aaine — Variance.

1. Larceny— Name— Vaiiiance as to alleged ownership op PRorEUTV.
Appellants were convicted of the crime of grand larceny, for stealing a
horse and wagon, the alleged proiserty of one Sang Hop. On the trial
of the C!;se tlio owner of the property ntolen testified that ho had two
names — a husiness nmne and a jM^rsonal one. Ilchl, that jus the owner
of the property was known by tlie name of S'.ing Hop, that name wan
BuHieient. in legal proceedings, whether he had another name or not.

PEOPLE V. LEONG QUONG.

335

2. Samk. — The name of the owner of property stolen is not a material pai t
of the olFeiiso cliarge;!. It is only required to identify the transaction,
so that the dof(;n.lant, by proper plea, may protect liimself against au-
otlier prosecution for the same offense.

Appeal from the Suporior Court of the City and County of
Sail Francisco. Fcj'ral, J.

Thomas F. Barry, for appellants.

JIcKkk, J. The appellants, in this case, were convicted in
the court below of the crime of grand larceny, for stealin;^ a
horse and waoon, the al]e;j;ed property of one San;^ Hop.
The commission of tlic oiTcnsc was proved by unquoitioned
evidence. No exception is taken to the charge of the court
to tlic jury, but it is contended that the verdict is contrary to
law, because of a variance bstwecn the information and evi-
dence as to the name of the injured party.

On the trial of the case the owner of the property stolen
testified that he had two names — a business name and a per-
sonal one. His pei'sonal name was Yup Chin, and his business
name Sang Hop; and that in all his business transactions and
dealings, for years, he has been known by his business nanio
only.

The name of a pei'son is the designation by which lie is
known. As, therefore, the owner of the property was known
by the name of Sang Hop. tliat name was sufficient, in legal
proceedings, whether ho had another name or not. As is
said by the supreme court of Afassaclmsetts: " The name which
was given to a ])crson at the time he was baptized is to be taken
as originally, and presumed to continue, his name; but if after
liis baptism he adopts and uses another name by Avhich he is
subsequently well known in the community where he resides,
prior to and at the time of the aUeged sale, it is sullicicnt if ho
is described by that name in tlie comphiint." Commonvicalth
•6. Tra'mor. 1'23 Mass., 415. The name of the owner of prop'
erty stolon is not a material part of tlie otfense cliarged. It is
only rctpiired to identify the transaction, so that the defendant,
by proper ]>lea, may protect himself against another prosecu-
tion tor tlie same olfense. The owner nuiy have a name by
reputation, and if it is proved that he is better known by that

336

AMERICAN CRIMINAL REPORTS.

name than any other, the charge in the information by that
name is sufficient. The State v. Bell, 05 N. C, 314.

There was therefore no variance between the information
and proof in the case which affected any substantial right of
the defendant. People v. Hughes, 41 Cal., 236.

Judgment and order ajjirmed.

Morrison, C. J., and Eoss, Mykick, Thornton and Sharp-
stein, JJ., concurred.

State v. Jenkins.

(78 N. C, 478.)

LiAiiCENY: Ownership of property.

In an indictment of the larceny of certain meat belonging to a railroad com-
pany, the property was laid in a depot-agent of the company who had
possession and control of it for the company for the use of its hands;
TieZd, that the indictment is defective; the property should have been
laid in the railroad company, the agent in such case not being a bailee.

Indictment for larceny. Buike Superior Court, before
Schenck, J.

Keade, J. The only question Avhich it is necessary to con-
sider is, whether the property in the goods stolen is properly
laid in the indictment.

It is settled by all text-writjers, and it is familiar learning,
that the property must be laid to be either in him Avho has the
general proi)erty or in him who has a sjyec'lal property. It must,
at all events, be laid to be in some one who has a jj^'opertij of
some kind in the article stolen. It is not sufficient to charge it
to be the property of one who is a mere servant, although he
may have had the actual possession at the time of the larceny ;
because, having r\o jM'oj)ertg, his possession is the possession of
his master. These are the only general pi'inciples that can be
laid down; and any given case must be governed by them.

In this case the meat stolen belonged to the railroad, and
w^as in its })ossession in its depot-hous(N for the purpose of feed-
ing its hands. The pr<)}>erty is not laid to be in the railroad,
but in its depot-agent, who had nothing to do with it and did

STATE V. JENKINS.

nothing with it except to give it out to the railroad hands to
eat. Ifis testimony was that he wa^j "the agent at the depot
and had possession and control, /b;* ikem, as their bailee of the
bacon alleged to have been stolen by defendant; that on Fri-
day evening he issued rations of bacon to the railroad hands,
nnd in the hogshead where the bacon was, he left one and a
half sides of bacon loose; and that hev locked the depot and
took the key," etc.

It is true he says he was their bailee ; but what is a bailment
is a question of law, and the facts which he states do not
make h'm a bailee. A bailee has a special property in the
thing bailed. He does not pretend that he had any property
in it, or that he held it for any use of his own. He states ex-
pressly that he was the railroad's agent and had possession and
control of the meat '\for them."' It was in their house, for their
use, to feed hands, and was issued to their hands by their agent
or servant. The agent himself might have committed larceny
of the bacon, which could not have been the case if he had
been the bailee.

It has been decided in this court that one who gets staves on
my land on shares may steal them before they are divided.
So an overseer who is to have a part of the crop for his Avages.
So witli a ci'ojiper. So with a clerk in a store. So with a
servant or agent of any kind, who has Xio property in the thing
stolen, althougli he ma}'^ have the possession. It is otherwise
if he has a property, general or special. A. is the general
owner of a horse; B. is the special owner, having hired or
l)orrowed it, or taken it to keep for a time ; C. grooms it and
keeps the stable and the key, but is a mere servant and has no
property at all. If the horse be stolen the property may be
laid to be either in A. or B., but not in C, although he had the
actual possession and the key in his pocket.

Why Avas not the property laid in the railroad ? Then there
could have been no difficulty. Or there might have been tAvo
counts if there Avas any uncertainty.

There is error. This will bo certified.

Per Curiam. Venire de novo.

Vol. IV— 23

TTW

iifi^

338 AMERICAN CRIMINAL REPORTS.

Campbell v. The People.
f

(100 m., 565.)

Larcent: Receiving stolen goods — Autrefois acquit — Pica of — General
verdict — Improper remarks of state's attorney — Waiver — Instruc-
tions,

1. Larceny — Receiving stoi-en goods— Local jurisdiction op of-

fenses— Exceition TO the rule.— Under the consstitutiim ami laws
of this state, as at couimon law, the local jurisdiction of all olfciscs is
in tlie county whei-e the olfense is committed. The crime of larcenv
is made an exception, and the offender may be tried in any county
to which he can-ies the stolen property, or where it mny be found, as
well as in the county in which the propei'ty was first taken. This rule
has no api)lication, however, to any crime other than larceny. The
oifeiiso of receiving stolen property, or aiding in itn conccidnient,
knowing it to have been stolen, is not embraced in hc ction 31)3 of tlio
Criminal Code, and the person must be tried in the comity where th(»
olTense was committed.

2. Same — Former acquittal- Whether a bar to a skcond proseci-

TioN — Jurisdiction essential — Former acquittal in ani^theu
coi'NTV. — The trial and acquittal, in one count}', of one cliar;;cd witli
receiving stolen goods, knowing them to have been stc len, is no bar to
an indictment for the same olfense in a different county, unless it slinll
ap]H>ar tiiat tlio offense was committed in the county in which the ac-
quittal was had, so as to give the circuit court of that touiity .iurisdic-
tion. An ac(iuittal of a crime by a court having no jurislii ti( n is no
bar to a prosecution for the same offense in a court having jurisdic-
tion.
8. The general rule at common law is, that an acquittal in one county (an
only be pleaded in the same county, for the reason tliat all indict uuiits
are local; and if the first is laid ui the wrong coiinly, the dcfi'iiilant
cannot be found guilty, and could not have been in h\i;al jcopimly.
To this rule thei'e are a few exceptions, as, in larceny, and in casi' of a
change of venue, as in this state.

4. Same — Former acquittal, to be a bar, must have been is re-

spect TO the same identical offense — And tiik plea must i-o
SHOW. — To make a plea of a former acquittal or couvii tion a bar to a
second indictment, [jroof of the facts alleged in the second must be
sufficient in law to have wanumted a conviction upon tl'.e iirs.t intHct-
ment of the same offense chai'ged in the second one, and iu)t of a dif-
ferent offense; and the plea must show that the offense charged in
both cases is the same in law and in fact, and the (lucstion must be de-
termined by the facts appearing from the record, without the aiil of
extrinsic circumstances.

5. Same — Of a plea of formi^r acquittal — Its requisites.— A plea

of an acquittal of the same offense in a different county is defective,
in substance, if it fails to show that the court of such other county

CAMPBELL V. THE PEOPLE.

ha 1 in aom? legal way a-jquiroil .jurislit-tion of the subject-matter, anl
how such jurisdiction was aciiuiro I, as, by a change of venue, or, in
case of larceny, by the defendant having taken the stolen property
into H icli county.
0. Same — A plka must answer all it professes.— A special plea (as,
a former acquittal) to an indictment containing several counts, if it
fails to answer any one count, is bad on demurrer.

7. Same — Concealing stolen property.— A party knowing property to

have been stolen has no riglit to conceal the same, even with tlie in-
tention to save him sulf from h)ss; and a clause in an instruction, on
the part of the defendant, announcing a different rule, will vitiate the
entire instruction.

8. Same — General verdict on several counts.— On an indictment for

receiving stolen ])ropeity, and also for aiding in its concealment,
clitirged in two separate ct)unts, both of which relate to but one and
tlie same transaction, the punislmient for each offense, even if distinct
ones, being the same, a general verdict of guilty is good, and will sus-
tain a judgment inflicting a single punishment.
{). Puactice — Improper remarks of state's attorney — Waiver by
• FAiLixo TO OBJECT. — A party on trial upon a criminal chargi," will not
be permitted to remain quiet without calling the attention of the court
to it, and permit the state's attorney to indulge in improper language,
and afterwiird assign the same for error. He must object at the outset,
or his t)bjection will be deemed to have been waived. But the fact
defendant's counsel may have traveled outside of the recoi'd. and made
statements not warranted by the evidence, affords no justification for
the state's attorney to do the same thing.

10. Instruction — GiviNd undue prominence to particular facts, and

GIVING improper CONSTRUCTION TO A LETTER. — Ou the trial of Ono

for receiving, and also for aiding in ct)ncealing, stolen property, an in-
struction directing the attention of the jury to a pai'ticular part of the
evidence, and giving it undue importance, and which also gives a con-
struction to a letter of the defendant not warranted by any correct
reading, is properly refused.

11. Same — Should i.i: applicable to the case. - Although an instruc-

tion contains a correct principle of law, yet if it has not the slightest
application to the fai'ts of the case, its refusal is proper.

Writ of Error to tlio Circitit Court of Jackson County; the
Hon. Daniel M. Jirowning. Judge, presiding.

Messr-i. AJhi'hjht tC* llarhcn and Mi\ R. M. Davis, for the
plaintiff in error.

Mi\ Jaitics McCartney, attorney-general, and IFr. Wdliam
Srhamrtz, state's attorney, for the people.

^[r. Justice Scott delivered the opinion of the court.
The indictment presented by the grand jury in the circuit
coui't of Jackson county, at the December term, 1882, against

340

AMERICAN CRIMINAL REPORTS.

Thomas Ciiiupbell, contains two counts. The first one cliaroos
defendant with receiving stolen goods, knowing tlie same to
have been stolen, and the second charges him witli nnlawfullv
and feloniously aiding in concealing stolen property, knowiii"-
the same to have been stolen. On being arraigned at the
March term of the court, 1SS3, defendant entered a motion to
quasli the indictment, which motion being overrule! by the
court, he entered a plea of not guilty, on "which a trial Avas
had. l)ut the jury failing to agree, they were discharged, and
the cause continued. At the August term of court, Issp,,
defeiulant seems to have tiled a special plea, in Avhicli it is
averred, in substance, he was indicted in tlie county of Perry,
at the October term, 1882, of the circuit court of tliat county,
Avith one Kobert C. ]\rilburn, for the identical same offense,
and that on the trial in the circuit court of that county ho was
acquitted. To the plea setting forth, with the usual formality,
the proceedings had against defendant in the circuit court of
Perry county, and his acquittal of the olTenso charged against
him in the indictment by the verdict of a jury, and the judg-
ment of the court thereon, the state's attorney prosecuting
tiled a demurrer, which was by the court sustained. On the
trial at that term of the court, on the plea of not guilty, filed
at a former term, defendant was found guilty by the jury, and
the term of punishment llxed at a period of three yenrs in the
penitentiary. Motions for a new trial and in arrest of judg-
ment Avere severally overruled, and the court pronounced
judgment on the verdict.

The points made upon which defendant most confidently
relies for a reversal of the judgment against him are, the court
erred, first, in sustaining the demurrer to the plea of auttv-
fols acquit^ second, in refusing certain instructions asked by
defendant; and third, in permitting the state's attorne}^ in his
closing argument to the jury on behalf of the people, to make
remarks concerning defendant not warranted b}'^ the evidence,
and Avhich were calculated to prejudice his defense.

The principal question in the case arises on the decision of
the court sustaining the demurrer to the plea of autrefois
acquit. The plea contains a copy of the indictment found
against defendant in the county of Perry, and it is seen it is an
exact copy of the one found against defendant by the grand

rega

CAMPBELL V. THE PEOPLE.

Oil

jui'V of tlio county of Jjickson, and under Avliich ho was con-
victed, except the venue is laid in tlio county of Peny, Tlio
indictments in both counties contain two counts, — one for
rccoiviny stolen property, knowing it to have been stolen, and
one tVti' aiding in concealing' stolen property, — and were foujul
under section 2'.]\) of the Criminal Code {U. S. 1874). It is
licirdly necessary to state a pi'inciple so elementary, that if the
circuit court of Ferry county had no jurisdiction to try defend-
ant for tlie crime with which he is charg-ed in Jackson county,
its judgment would be no bar to the present prosecution.
Undrr tlu; constitution and laws of this state, as at common
law, tlie local jui'isdiction of all otleiises is in the county wIkmo
the od'enso is committed. See art. 2, sec. 9, Const. ISTO, and
sec. 'Mo of the Crim. Code (11. S. 1ST4). The statute, it will
be seen, follows cl<»sely tlie constitution, and declaivs, "tlio
local jurisdiction of all otl'enses not otherwise provided by law
sliall be in the county where the offense was committed.''
Among tlie jirovisions for jurisdiction of the same oll'cnse in
more than one county is where, as in section .'U);» of the Crim-
inal Code, which ])i'ovides, concerning jurisdiction in la.rceny,
that "where pro[)(>i'ty is stolen in another state or country, and
brought into this state, or is stolen in one county of this state
and cari'ied into another, the jui-isdiction shall be in any county
into or through which the property may have passed, oi' where
the same may be found." This latter statute is simidy declara-
tory of the common law on the same sidiject. Larceny. Viuder
the laws of this state, '"is the felonious stealing, taking and
carrying, leading, riding or driving away the personal goods
of aiKjther."' The common law — which contained the same
definition of larceny — seems to have regarded the felony as
having been committed where the goods were fehmiouslv
stolen, but f<n" the i)urposes of jurisdiction the olFense was
treated as having been committed within any jurisdiction iiito
which the projierty was afterwards carried. The rule on this
suhject ])rocee(ls on the legal assumption that where tlie prop-
erty has been feloniously taken, every act of removal may bo
regarded as a new taking and asportation. 3 (J ray, 4;)4. That
is the meaning of the statute of this state concerning juris-
diction in larceny cases. It has no application, however, to
imy crime other than larcen}'. The offense or olFenscs with

312

AMERICAN CKIMINAL REPORTS.

which defendant stands charged are not embraced within tlio
terms of the statute.

The plea of autrefois acquit is grounded on that prin('i])Io
of the common hiw, and which has been incorporated in tlio
constitution of this state, no pcrscm shall "be twice ])tit in
jeopardy for the same offense." A former accpiittal niav
always bo pleaded to a secoml indictment for the samo ollVnsc,
which implies that the court that pronounced the judgment of
acipiittal had jurisdiction of the cause. The priiK'ii)li> is of
course familiar, but there is often some dilliculty met witli in
its applicaticm. Generally the rule is, as at common law. jui
acquittal in one county can only be ])leadod in the same county,
and the reason assigned is, because all indictnumts are loi;il,
and therefore if the lirst were laid in a wrong county the do-
fendant could not be found guilty upon it, and consecjucntly
was in no danger, and therefore could not ])lead an acunittal
u])on it in bar of a subsequent indictment for the oH'cmisc in
the proper county. Yaii,ex ^V.sr, Tt. 4, Co. 4r)d, Com. Di'^.,
Indict. L. ; 1 Wharton on Ci-im. Law, ]). 5.').5, ed. of 1S74;
2I((i'.<Ji(ill )\ Tito Sfati', 10 Ohio St., ',W.\. j>ut at common law
there ^wqyq excei)tioiis to this general rule, and one; of tlic ex-
ceptions most frequently noted is in cases of larceny where
the jurisdiction might be where the felony was in fact com-
mitted, or in that jurisdiction into which the pro])erty m!;jlit
be carried, and that c.\cei)tion, as well as some others, exists
mider the hnvs of this state. Among the othei- (wceptions,
under our laws, is where the venue is changed, under the stat-
ute, from one county to another.

It is said by text-writers, the crown may either traverse or
demur to the plea of auinfoix avqnlt. The same praeitico
would no doubt prevail under oar system of jin'ispru(leiie:\
In this case the (pu'st'on as to the suHiciency of the plea to bar
the j)rosecution arises on a demurrer to it, interposed l>y tlic
l)eople. The rule laid down by I'lackstono as to pleas of this
character has been adopted by this court in FrctUmtl r. Tin'
reo[)le, 1(5 111., 3S(), and is, with reference to former ac(]iiittal
or conviction, it ''must bo upon a prosecution for the same
iaenticalact and crime." All the authorities hold that, to en-
title a defendant to the benefit of this plea, it is necessary the
crimes charged in the first and second indictments should bo

CAMPBELL t'. THE IJEOPLE.

343

the same, ami tluit if the crimes charged in the first and second
i.:(littments are so distinct tliat the evidence of the ono will
not support the other, a conviction or accjuittal of the one will
not bill' a pros:!ciition of the other, — or, adopting the language
of tliis court in Fri'dnnd v. Tho PtnpJc^ the rule may be stated
to be, lliat, to make the plea a bar, proof of the facts alleged
in Ihe second indictment must be sutfici(mt in law to have war-
nmicd a conviction upon the first indictment of the same
olTcn •(• cliargcd in the second, and not of a difTeront offense.
Tlio genei'al rule adopted fin* ascertaining the identity of the
olfcnsi'S is as stated by Archbold in his work on Criminal
I'lcading, li'i, where it is said: "The true test by which the
(piestiou whelher tlie plea is a bar in any particular case may
1)0 tried is. wlicther the evidence necer>sary to support the
second indict nuMit would have been suilicient to procure a
loiiid conviction on the first." Sub.stantiallv the rule has been
stated in the same way by Chitty in his work on Criminal
Law. and as stated by both authors it has been adopted by
this court. Applying these well understood principles to
the plea be"ng considered, the case ought not to present any
groat dilliculty. "Wouhl pi'oof of the facts alleged in the in-
<lictnient in -lackson county have warranted a legal conviction
OR the indie! nient in Peri-y county? That is one of the tests,
it is said, must be a])i>lii'(l, and it is obvious the question admits
of oidv a negative answer, ('(n-tainlv the ofTenso of receivin<r
stolen pvoi)erty in IVrrv county, kn(^wing it to have been
stolen, is not the same offense as receiving stolen propert}' in
.hickrfon county with a like guilty Icnowledge, As a nnitter of
law they ar(^ distinct offenses — as much so as a murder com-
nutted in one county is a distinct crime from a murder com-
mitted in another county. Pi'oof of a mmxlcr committed in
ono county woidd not sustain a prior indictment for the same
murder in another county; nor could the first acquittal be
pleaded in bar of a second indictment found in the county
where the ci'inie was in fact peri)etrated, and the reason is, be-
cause in the judgment of the law the accused was not in jeop-
ardy on the first indictment. The principle is, as at common law,
if the offense charged in the second indictment is in one kind's
roign, and the first indictment was confined by the i'oniru,
[iitvim to the preceding reign, an acquittal upon the first could

?jU

AMERICAN CRIMINAL REPORTS.

not be pleaded in bar to the second. The ground upon Avhich
tliat principle is said to rest is, the contra pacem tied up tlie
prosecution to proof of an olFeuse in a particular reign. Jiy
our system of pleading, the venue, as laid in the indictment
confines the prosecution to proof of an offense committed in a
particular county, as effectually as the proof was limited bv
tlic contra pacem regis at common law to an offense committed
in the reign of a particular king.

It is the settled law that an acquittal on one indictment, in
order to be a good defense to a subseqent indictment, must be
an acquittal of the same identical offense as that charged in the
second indictment. That fact must in some way appear I'lom
the i)lea itself, and that the offenses charged in both cases were
tlie same in law and in fact. Coinmoiiioeidth v. Jloljij, 12 Pick.,
•iOG. The question must be determined by the facts appearing
from the record, without the aid of extrinsic circumstances.
All questions arising on demurrer to pleadings must, of coiiise,
be determined witliout rei'erenco to any evidence tiiat may
thereafter be given on the trial of the cause. It is not always
enough the two indictments may appear to be in precisely the
same words. That may well be, anil j'et the oflenses distinct
felonies; as, for instance, wliere there are two indictmenls lor
rape, it might be the same person committed a rape u[)on two
women of precisely the same name, and an acipiittal on one
indictment would not bar a ]»rosecution on another, unless it
was nuide to appear in some way it was identically llu5 s;iino
offense. IJut the best, and pei'liai)s the most accui'ate, test
given in the books is, as before stated, Avould the evidence nec-
essary to sustain the facts alleged in the second indictment
luive been suflicient to sustain a legal conviction on the lirst
indictment!' In the case being considered it is .so plain it need
not be elaborated further, tiiat proof defendant had J'eceived
stolen property in Jackson county, knowing it to have been
stolen, would not iiave sustained an indictment foi* I'k- identi-
cal same offense in J 'erry county. Tbe jdea miglil have shown,
]>ad there been tiie fact, that the Terry county circuit court
got jurisdiction by change (.f venue to try th'iendant on a
})roper indictment for I'eceiving stolen goods in Jackson ccmnty,
and such a plea would have been a bar to a prosecution on a
second indictment in Jackson county for the same offense.

CAMPBELL r. THE PEOPLE.

345

That was not dono, simply because it would liavo availed
notliiny. It has been seen original jurisdiction of an oirense,
like the one charged in the first count of the indictment against
defendant, is necessiirily local, and is confined to the courts of
the county where the olTeuse is committed, and an acquittal
elsewhere is as nothing in law. The plea in this case is in the
usual form given where it is lilcd in the same county where tlie
trial was had on the first indictment, to a second indictment in
the same court for the same olfense. But that is not suilicient
in a case like the one being considered. Here the plea is de-
fective, because it does not show, by way of averment, that the
circuit court of Perry county in any way, or for any cause, ob-
tained jurisdiction to try defendant for the crime of receiving
stolen goods, with guiUy knowledge, in the county of Jackson,
and therefore it is obnoxious to the demurrer.

A question might arise as to whether the plea miglit not bo
good as to the second count of tlic indictment, whicii charges
defendant with aiding to conceal stolen goods. It miglit be
lie aided in concealing the i)roperty in Peny county, and that
fact would have conferred jurisdiction. How the law may be
on tliat (piestion it will not now l)e necessary to decide, for it
does not appear from tlie ])l('a the jn'operty was ever in Perry
county. Tliat fact is jurisdictional, and must ap[)eai', or the
plea will be bad. It will be observed the former actpiittal
pleaded took place in nnother county, and not within the juris-
diction of tlie court v.'liere the second in<lietment was found,
and it is necessary the [)lea should show the c<jart had juris-
diction to try defendant for the identical olfense charged in the
second indictment. It is a|)[)i'eli'Muled it must appear, from
tlu! plea itsell", how the court obtained jurisdiction, otherwise
the pK'ii will be no bar. Lord Jlale states the rule to bo, that
a |)l(':i of i'oi'mer accpiittal is no bar to an indictment for lar-
ceny in the county of (\, for though the accused be acipiitted
in I)., il may be because the goods werone\er brought into that
county, and so the felony in C, was not in question.

Dut another view renders any further consideration of this
brancli of the; case unnecessary. The plea of auti'i^foli^ ae^nit,
it will be observed, is to the whole indictment. Palling to
answer any one count of the indictment, the [)lea would be bad
on demurrer, Coininonttralth r. llWt', IT Pick., oOo. As has

346

AMERICAN CRIMINAL REPORTS.

been seen, it was clearly bad as to the first count of the indict-
ment, because it did not show how, or for what reason, the
circuit court of Perry county obtained jurisdiction to try de-
fendant for receiving" stolen goods in Jackson county, knowing
the same to have been stolon. As a matter of law, that court
couhl have no original jurisdiction. Kad defendant i)!(>;uled
" not guilty " to the first count of the indictment, and "-'/c/yc-
fo'hs arqult^'' ivi to the second count, which charges him with
aiding in concealing the stolen goods, then the question Avlietlicr
the circuit court of Perry county had jurisdiction on the lirst iu-
dictuient to try defendant for that offense, on tho gi'ound it
was an offense that might be committed in any county into
which the property was carried and concealed, would liavo
been fairly pi'esented, and might have been definitely dctoi'-
mined. ]]ut that was not done, and the demurrer was pi'{)[)erly
sustained.

Passing now to tho consideration of tho instruction ; given
by the trial court, it does not appear from tho transcript ol' tho
record in this case that moi'O tlian one instruction was liivmon
behalf of the people. That has relation to the foiMii of tho
verdict, and it is so cleai'ly actrarate no ([uestion is nv.iilc con-
cerning it. On belinlf of defendant a g-rcat nuinl»ei' of in-
structions were given, stating tho law very favoi'aldy foi- tho
defense souglit to biMiKide. Of the insti'uctions refniuvl that
were asked for by defendant, it is insist(Ml it was error in tlio
court not to give the first, second and third of the si^rics as
they api)ear in tlic transcript of the record. Tiie lii'st in-
struction is faulty, because it directs the attenti(m of t!ie jury
to a particular pi(>ce of evidence, and gives an undue impor-
tance toit,iind for the further reason it gives a construction to
the letter to which attention was called, not wi'rrantcd by any
correct reading of the sam(>. The {jr^sposition contiiined in tlio
second charge, if d(>fendant concealed the stolen ])rop(>rty
'• with an intention to save himself IVoin loss,'' is not the law,
and that vicious clause rendered the whole instruction had. If
it be cone(Mled the third chai'ge contains a correct pi-inciple of
law, it couhl not have tho slightest api)licatio>i to the facts of
the case, and tho court very pi'operly refused it.

In supi)ort of his motion for a new trial, dofimdant (lied his
own allidavit of matters stated and accusations nuuh' bv tho

stf
fei

CAIilPBELL t'. THE PEOPLK

347

state's attoni<\v in his closing ar^iment to the juiy, against de-
fondiint. not warranted by any evidence in the case. If the
.uLorncy said all that is imputed to him, his conduct in
ui;it respect is not free from blame. It is no sort t)f justifica-
tion for him tlnit counsel for defendant may have traveled out
of the rp(" •'! nn I made stateuuMits not warranted l)v the evi-
dence. I>ii. iidiK'snot appear from anything in this record
that defendant called the attention of the court to the objec-
tionable language at the time. Had he done so, no doulit the
court vrc (Id have checked counsel at once, and admonished
him r;>( tc repeat the objectionable language. A jjart}^ on
trial will not be permitted toreuuiin ([uiet, without calling the
attention of the court to it, and permit counsel to indulge in
improper language, and afterwards assign the same for error,
lie must object at the outset, or his objection will be deemed
to have been waived. Counsel say, in the case .it bar, that at
the tiuu^ the objectionable language was being used, the atten-
tion of the trial judge was c:di(>d to the fact, and the judge
not only raJlcMJ to eh(\,'k counsel, but gave him license to pro-
c'MhI. Xo such <(bj(!clion is found in the abstract. The tran-
script of the record has also been examined, and no such thing
is (lis('over(Ml, if any exists. Failing to call the iittention of
the court to the imiu'oper language at the tiiiu! it was used, it
is now too late to insist u[)on it as error. The fact it was em-
bodied in an ailidavit in sup[)oi't of ,a motion for a new trial
docs not dis[)(>nse with the necessity for calling the attention
of tli(> court at the time tliat counsel might he conlinecl to the
record in th(! argument of the case. Omitting to do so, the
ohjection cannot now prevail. UlLwii v. The J\(>j>le, Ui 111.,
2!)t).

AVithout entering npon any analysis of the evidence, it may
Ix'said, wlien it is subjected to a careful consideration it is
seen it fully justifies the verdict. Ordinarily, the (piestion of
the guilt oi' innocence of the accused on trial for ci'ime is a fact
p(M'uliarly within the pi'ovince of the jury to liud. It is the
duty of the court, however, to see that no injustice is done the
accused, and for that reason th<i court must consider the evi-
dence in all criminal cases that come before it. That has been
done in this case, and no reason L i^vceive^l for disturbing
the verdict.

348

AMERICAN CRIMINAL REPORTS.

It has been observed tlie indictment contains two counts,—
one for receiving stolen property, and the other for aiding in
concealing stolen property, — and it is insisted a general ver-
dict of guilty is bad. Both counts in this indictment relate
to the same transaction, and the punishment, even if the
offenses are distinct, is precisely the same. Tluit being so,
under the decision of this court in Lyon v. The People^ OS 111.,
271, a general verdict is good in law, and will sustain a judg-
ment imposing a single punishment, as was rendered in tills
case.

Iso serious error is discovered in the admission of testimony
against defendant, that Avould justify any complaint on tliat
score. The suggestion the letter read in evidence was written
under such circumstances as made it a " privileged comnunii-
cation," has so little in its sui>port it need not be remarked
upon. On the whole record, when considered, no error matci'i-
ally affecting the merits of the case is ])erceived, and the judg-
ment of the cu'cuit court must bo allirmed.

Judytaciit ajjinncd.

State v. Jamks.

(58 N. H., G7.)
Larceny: Value of chattel.

1. Chattel. — A printed list of names und dales is <a cliaitel, but not a

"writing containing ovidt'iicc of any existing debt," within the .sliitii-
tory definition of the sub jeets of larcenj'.

2. Value op chattel. — Its vahie, us a (statutory subject f)f iareeny, is its

niiirkct value. To be of tlie market value of !?'J0 it must be eaiiable of
being sold for tiiat sum at a fuirly-condueted sale.

Solicitor, for the state.
Mat'ston, for the respondent.

EixGUAAt, J. The (|uestions reserved were, vhctlior the list
was a writing containing evidence of an existing (k'l)t, wltiiiu
sec. 3, ch. 2(!<), Gen. St. ; whether, If it was not sueii a writing, It
was a chattel within said section; and, if such a cliattel,
whether evidence was admissible to pi'ove it worth to IIkj
owner )?2(>, although to others it was oi no value.

STATE V. JIcGINNIS.

349

The statute of Doccnibor, 1SI2, so far as material, was the
same as sec. 0, eli. 2(!<), of tlie General Statutes. In Bhmchard
r. Fhk, 2 X. ir., 308, 4J)<t, it Avas held, in construing the act of
1812, that to make the talcini^ of a file of bills larceny it must
contain evidence of unsatisfied debts, or subsisting contracts,
covenants or promises, or of the discliarge, pa^'mcnt or satis-
faction of such debts.

AVas the list a vriting containing evidence of an existing
debt Avithin said section 3? It contains no evidence of a con-
tract, promise or covenjint subscril)ed. If evidence, it must be
as a book of accounts, but as a Ixjok of accounts it is wanting
in nearly all the elements required by the rule to make it evi-
dence. Cionmlngs v. JVic/io/s, 13 N. II., -120; Sicaiu v. Cheney,
41 X. II., 235.

It was a chattel. 2 Ttussell on Crimes, 00, 75 and note; 4 Bl.
Com., 234; Blnnchard v. Fhl', before cited; Payne v. The
People, Q* Johns., 103; 3 Greenl. Ev., sec, 153; Bex v. Mead,
4 C. k P.. 535; Reijhm v. Jforrh, 9 C. & R, 347.

Its value as a statutory subject of larceny is its market

value; and evidence that it is worth f>20 to its owner, and

Avortli nothing to anybody' else, <loes not show its market value

to 1)0 S20. To 1)e of the market value of s20 it must be

capable of being sold for that sum at a fairly-conducted sale, —

at a sale conducted with reasonable care and diligence in

respect to time, place and circumstances, for the purpose of

ol)taining the highest price. Locl'e v. State, 32 X. II., 106;

State V. Ladd, id., IK); State v. Goodrich, 4G N. IL, 18G;

Coclu'co V. Strafford, 51 X. II., 481.

Case discharged.

State v. McGinxis.

(37 Ark., 303.)

License: Peddlers.

License— PEDDT.ERS— Act imposino license is rNTONSTrruTioNATi.— An
act whlcluliscriminatos against the i>rodiict8 nnd manufactui'es of other
sfiitos, by reiiuiriug peddlers to obtain a licouse to sell the same, ia un-
constitutional and void.

S50

a:jerican criminal reports.

Appeal from Nevada Circuit Court. Hon. Dan W. Joucs,
Speciiil Judge.

C B. Mo/nr, attorney-general, for appellant.
MonhjoiifU'ij <(• ILiinbij, for appellee.

ExoLisu, C. J. On the 24th of January, ISftl, Thomas
^McCrinni:! was cliarged and convicted before a justice of tlio
peace of Nevmlii county, "with the olFeuse of ^oiniii: fi'om
place to i)hu'0 ]KMldling and sellin^^ good^, wares and nierehim-
<lise, other tlian tlie g-rowth, produce or manufacture of ihi;;
state, in sai<l county," etc.; fined .^-JJt), and appoaied to the cir-
cuit ctrart.

In tli:? circuit com't a demurrer was inter])osed to tlie elKii-nv,
which t'.iL' court sustained, discharged defendant, and the stac
appealivl.

Tlie statute provides that:

"Whoever shall deal in selling of goods, wares or niereliiin-
dise, other than the grovt'th, ])ro(luco or nuiuul'actiiiv of this
state, by goiug from place to place, either by land or v.aU'r, to
sell the same, is declared to be a peddle/." (iantL's Dig., sec.
4:J7<i. etc.

Other sections reiiuiro jx^ldlers to obtain licens;'', and pi'o-
scribe the j»eiuilty for selling without, etc. Id., sees. [."iVT, J-JN."),
5or)(i-r)l, 14!»1; Miller's Dig., pj). 4, n.

Thci'o is no subseipuuit act deliuing a peddler, and no itct
rcfpiiring ])eddlers of goods, n-ures or merchandise, which iii'o
the growth, produce or manufact;n*e of this state, to (jbtaiii
license.

The al)ovc act clearly discriminates against the proiliicis iiiid
manufactures of other states, and in favor oi the ])r«i(liicls mid
nuuiufa(,'tui'es of this state. h\ Wr/fo/i. 'i\ St'f<\ 1 Otto. -'T">.
just such an act of Missouri was held by the supreme eomi of
the United States to bo in conllict with the coniniei-ee chiiisc
of the constitution of the United States, and, therefore, null
and void. See also, Sfati^ r. Kutc Mai'sh^ aido.

If tlui legislature deems it e.\|)ediciit to reipiire |)eil(llers to
obtain license, and to punish them for pechlling without license,
no diseriniination must be nuule against goods, etc.. of the
growth, produce or manufacture of other states, etc.

Affli'inid.

ADAMS V. THE PEOPLE.

351

Adams et al. v. The Pkople.

(109 111., 444.)

McRDER : Continuance — Intent — MnJicn — Ecidence — Reasonable doubt —
Instruction as to policy of the law, etc.

1. Continuance — Absence of avitxesses — Matkuiauty of the pro-

I'osKi) TESTIMONY. — Preliminary to the trial of two defoudants on u
c'liarf^c of murder, alle;:;ed to have been committed on the nififlit of the
10th of July, by compellin}^ the deceased to jump from a railroad car
wliile in i"ai)id motion, tlu^ court refused a continuance on behalf of
tlie ai'cnsi'd, asked on the ground of. the absence of two witnesses re-
sidini; in Indiana, by whom the defendiints expected to prove tliat such
witnesses saw the defendants at the town of Godfrej', in Miidison
county. Illinois, cm the eveninj; of July 0. a place distant some twenty-
fivr or thirty miles from where the oifenso was charf;i;(nl to have been
connnittc 1. Held, no i'rror, as the allidavit failed to show any incom-
patil)ility l)etween the fact alle;^eil. as expecte<l to be i)rove(l, and the
commission of llie offense by tlie defen<lants. Tiie absent testimony
was immaterial.

2. ^VlIAT CONSTITUTES MURDER — OP THE INTENT.— Intent to kill docs not

enter into the delinition of murder. It is enoui^h if the unlawful
killing be done with malice afori'thonght. either exprt-ss or implied.

3. If a party of men board a railway car, and while the train is running

draw deadly weapons on a i)assen};er, and make him hold up his hands
w)iil<- they rob his person, and then by threats and intimidation cause
liini to jnmi) from tlie car door, tliey commanding him to do so, and
he is tliereby killed, they will be guilty of murder. In such case it is
not eisenlial tluit death should be t\\o i)rol)able and reasonable result of
the a< t the deceased is forced to do. It is sulUci(>nt tliat death or great
boilily harm was the natural result. Forcing a person to do an a<'t
wlii<'ii causes his death renders the death the guillv deed <>( bun who
coinpeiled the deceased to do tlie act.

4. ^lalice may be inf(>rr(Ml when an act unlawful in itself is don(> deliber-

ab'ly, and with intention of mi-ii-liief or great bodily harm to those on
wiiom it may c-hance to liubt. if death is vH'casioned by it. By the
st:itute. if an involunta'-\ killing shall happen in the tiommission of an
unlawful act wbi'-h in its consiMiucnces naturally tends to destroy the
life of a human being, or th(< act is commit(»'d in tlie exccidion of a
felonious iidcnt, the olTense is declared n\urder.

5. Ok tuk KVini'.NCK aoainst one ciiakuki) with mukdeu.— On the trial

of two persons on a charge of nvurder comniillcd on July 10. issi), by
compelling a passeu'^n- to Jump fnnn a I'ailway (rain while it wa.s in
nuition, two witnessi^H for tl\>* people were allowe I to testify, over an
objection, that tlu\\ naw the defendants, and two otiiers. with whom
the defeudant < \\v>i\' indicted for the nuu'der, ttigether on the raiiroail
track on July S, ISS;t, and that one of them had a revolver. Held, that
tiiere was no legal objection to tl\i^ testin\ony.

imm

352

AMERICAN CRIMINAL REPORTS.

6. In tho saino case, the state's attorney, in the examination of one of

thest? witnesses, in-oihiceil a wateh chain, and the Avitness said it was
his <'liain, and that lie had it on wlien he met tlie defendants and the
two otliers wlio wore indicted, on tlio evening of July 8, 1883, — wliich
was ()l)jec(('d to. ITchl, that wliile tlie evidence as to the watch cliain
ini!j,ht laoiiorly enongli liave been exchided as irrelevant, yet it was not
suflicieutly liarmful to the defendants to make its admission material
error. It would not justify an inference tliat the witness had been
robbed )j}" tho four men.

7. So, too, one of these witnesses, in answer to the inquiry wliether there

was anything unusual to cause him to remember tlio time of seeing
one of tho defendants on the morning of Julj' 8, 1883, said a man was
found dead that morning, — a stock man, who had fallen from a train.
Ilelil, that tho concluding i)art of this evidence repelled any iiiferenco
that this 7nan, too, had been thrown from the train by tho same men,
and its admission was not error,

8. Of a reasonahle doubt. — On the trial of one for murder, an instruc-

tion for the defense that the law in regard to reasonable doul)t applies
with greater force to circumstantial tlian to other classes of eviilencc,
is erroiieuus, and pro])erly refused.
0, It is error in an instruction for the defense to say that if the circum-
stances are capal)le of being explained on a theory consistent with the
innocence of the accused, the jury should acquit. A theory miglit be
.assumed that the testimony as to his guilt was false, and on such a
theory there could be an exjilanaticjn of tlio circumstances consistent
with Ills innocence.
10. And iiek!;ix, of thr policy that many gl'ilty mkx siiour.n EscArE

RATIIF.U THAN ONE INNOCKXT PEllSON SHOULD SUFFER. — On the trial of

two ])ersons upon a charge of murder, the defendants asked the court
to instruct the jury tiiat tho policy of the law is, that it is belter that
ninety and nine, or anj' number of guilty persons, should escajie, tliaii
tliat one innocent man should be convicted, and that it is not siilliciciit
to authorize a conviction that the greater weight or ijrepnnderance of
evidence supports the allegations of the indictment, — whicii tlie court
refused to give. Held, that the instruction was properly refusinl, tliere
being no policy of the law on tho subject, or for the considcralion of
tho jury; that it is not within the puri)ose of tho law that any guilty
person shovdd escape or any innocent one be convicted; and that if the
greater weight or preponderance of tho evidence be such as to satisfy
the jury, beyond a reasonable doubt, of the defendant's guilt, then it
would be sufficient to authorize a conviction.

Writ of Error to the Circuit Court of Groeno County ;
Hon. George W. Herdman, Judge, presiding.

tho

Mcssi's. DooUttlc (& English, for the plaintiffs in erroi*.
Mr. James IlcCaHney, attorney-general, for the people.

ADAMS V. THE PEOPLE.

353

]\rr. Chief Justice Siitcldon delivered the opinion of the
court.

Frank Adams .and Benjamin F. Pritchard, at the September
term, A. D. 1883, of the Greene county circuit court, were in-
dicted for the crime of murder, and found ^niilty, and sentenced
to imprisonment in the penitentiary for the terms of twenty
and fourteen years respectively. They bring this writ of error
to reverse the judgment.

The refusal of a continuance is assigned for error. The
defendants were indicted on the fith of September, 1883, and
on the iVtii of September, 1883, made their motion and affida-
\nt for a continuance, on the ground of tlie absence of two wit-
nesses, who resided in Indianapolis, in the state of Indiana, by
wliom they expected to prove that said witnesses saw the
defendants at the town of (iodfrey, in the county of Madison,
in this state, on the evening of the 9tli of July, 1883, the day
before the night on which the offense charged in the indictment
was alleged to have been committed; that said place was a dis-
tance of twenty-five or thirty miles from the place where the
offense was said to liave been committed, and in a different
direction from which the train upon which the offense alleged
to have been committed came. The crime was charged in the
indictment to have been committed on the 10th day of July,
1883, by forcing the deceased, one Patrick Knight, to jump
from a freight car on a certain railroad while the car was in
motion. The alfidavit, so far as we can see, does not show any
incompatibility between tlie fact alleged as expected to be
proved by the witnesses, and the commission by the defendnnts
of the crime charged, and we think the motion for a continu-
ance was properly overruled en the ground of the materiality
of the absent testimony not sul.'ciently ap])earing.

Objection is taken to the adm ssion of the testimony of the
witnesses Curtis and Thompson. The testimony of these wit-
nesses was upon the point of having seen the defendants, and
Hogan and Ryan, with whom they were mdictod, together on
the railroad track on the 8th of July, and that one of them had
a revolver. There could be no objection to this ; but in the
examination of Curtis, the state's attorney produced a watch
chain, and the witness said it was his chain ; that he had it on
when he met these men, on the evening of the 8th of July.
Vol. IV— 88

;i5i

AMERICAN CRIMINAL REPORTS.

This evidence as to the watch chain might properly cnougli
liave been exchuled as irrelevant, but we do not seo that it was
suiKciently harmful to the defendants to ninko its adini^.Mion
material cirror. It is said the implication wouhl be that tlio
Avitncss was robbed by these four men. Wo thiidi that avouUI
be a strained inference from the evidence, and one not justified.

Thompson, in answer to the inquiry whether there was any-
tliin<>' unusual to cause him to remember the time of seein"'
llyan on Sunday morning, July S, said a man was found dead
tha morning — a stock man had fallen from tlio train. It is
said that was calculated to produce the impression that tliis
man, too, had l>eon thrown from the tniin by these men; but
the concluding portion of the statement, that a stock man had
fallen fi'om the train, repels such an idea.

It is contended that the evidence does not support the ver-
dict. The witness, Patrick Coughlin, testilied that ho left (.'hi-
cago with Patrick Knight, going to St. Louis; that on tlie way
they, at (Treendeld, on the line of tlio Cliicago, Burlington «fe
Quincy Railroad, got into a box car on a freight train on that
raiboad, in v.-]Hch were Adams, one of the do feiu hints, and
Kyan, and as t!ie train started, Pritchard, the otlier defendant,
and Ilogan, jumped into tlie car, and the doors were shut; that
some time afterwards^ while the train was running, the four
other men "covered'' witn(>ss and Knight with four revolvers,
two of them also havhig razors in their left hands; that tlioy
ordered witness and Knight to hold up their hands, and
searched them; that tliey got nothing from witness, for lie
had nothing, but they took alxjut >>'► from Kniglit. After that
they opened the door of tlu; ear and told witnes.s and Knight
to jump; that witness jumped lirst, and some one kiclced him;
that witness was not hurt; that he walked along a littk; way
and came to the body of Knight; ho was dead; the bcnly was
lying at right anghss with tin; track, the feet out, and the head
between the ties, alx)ut an inch and a half or two inch(!s from
the rail; the back jxirt of his head had been crushed in. The
testimony of this witness, if believed, wouhl sustain the verdict-
It is insisted th.it the testimony is not entitled to credit. The
jury appear to have given credence to it, and after a careful
consideration of it, with the other evidence in the case, and the
circumstances which are adverted to as detracting from the

ADAMS V. THE PEOPLE.

356

credibility of tlio witness, avo find no sufficient reason for dis-
turbinf? tlio conclusion of the jury.

Objection is taken to the givin<^ and rcfusinf^ of instructions.
This instruction was given upon the part of tlio people:

"Tlic court further instructs the jury, for the people, that
to prove the charge in the indictmcmt there need be no laying
of luuuls on the j)crson of Patrick Knight, by the defendants,
to put him from the car, in order to constitute the force therein
alleged; but that if defend.ants did, by threats of violence to
the person, intimidation, or by displaying deadly weapons in a
threatening manner, caur.e the said Patrick Knight to leap or
jump from the car while in motion, as alleged in the indict-
ment, under circumstances whicli would have caused a prudent
man to do so, aiul thereby lie was killed, as charged in the in-
dictment, and if the jury so believe, from the evidence, beyond
a reasonable doubt, that such are the facts, they should find the
defendants guilty."

The exception taken to this instmiction is, that it is defective
in not having the quali(icati(m that the defendants forced the
deceased to jump from the car with intent to kill him, or that
the killing was the ))robable and reasonable result of such
jmnp. Intent to kill (l(x;s not enter into tlie definition of mur-
der. It is enough if the unlawful killing be with malice afore-
thought, either express or implied. Nor was it essential that
dcati) should have been the ])r()bable and rensonable result of
tiic act whicli the defendants forced the deceased to d(j. It is
sulllcient that death or great bodily harm was the natural re-
sult. Foi'cing a person to do an act which causes his death
renders the death the guilty deed of him who comi)elled the
deceased to do the act. 3 Greenleaf on Evidence, sec. 142.
Malice may be proved by evidence of gross recklessness of
human life, where, in any manner, the life of anotlier is
knowingly, cruelly and grossly endangered, whether by actual
violence or by inhuman privation or exposure, .and death is
caused t]u':rel)y. Ibid., sec. 117. Malice may be inferred
where an act unlawful in itself is done deliberately, and with
intention of mischief or great bodily harm to those on whom
it may chance to light, and death is occasioned by it. 2
Starkie on Evidence, 951. The definition of murder, by our
statute, is: "The unlawful Icilling of a human being, in the

IMAGE EVALUATION
TEST TARGET (MT-3)

1.0

1.1

11.25

lit m

2.2

lit

2.0

RMII^H

1.4 11.6

KiDlDgraphic

Sciences

Corporation

23 WBT MAIN STRUT

WitSTiR,N.Y. MSN

(716)«72-4S03

35(5

AMERICAN CRIMINAL REPORTS.

peace of the people, with malice aforethought, either express
or implied. . . . Malice shall be implied where all the cir-
cumstances of the killing show an abandoned and malignant
heart." And in the statutory definition of involuntary man-
slaughter there is this provision: ^^ Provided, always, that
where such involuntary killing shall happen in the commission
of an unlawful act, which, in its consequences, naturally tends
to destroy the life of a human being, or is committc<l in tlio
prosecution of a felonious intent, the offense shall be deemed
and adjudged to be murder." The instruction presents fully a
case of murder as thus defined by the statute.

It is the same objection, substantially, which is made to tlie
other instructions on behalf of the people, except the sovcntii,
which informs the jury " that if the defendants . . . con-
spired to rob Patrick Knight, . . . and with the intent fo
coi'Scal said crime of robbery did force him to jump," etc.,
they should find the del'cndants guilty. The further exception
is taken to this instruction that there is nothing in the evidence
upon which to base it. There was evidence of a robbery of
Knight, and that immediately upon its commission ho was
forced to jump from the car. We do not think it can well ho
said there is nothing in the evidence upon which to base the
instruction.

We ])ercei ve no error in the refusal of instructions asked by tlie
defendants. The first was erroneous in saying to the jui-y tliiit
the law in regard to reasonable doul)t applies with greater force
to circumstantial than to other classes of testimony. AVo are
aware of no such rule of law. Tliere was furtlier error in say-
ing that if the circumstances wore capable of being ex])lainc(l
on a theory consistent with the innocence of the defendants,
the jury should acquit. A theory might be assumed that the
testimony as to the defendants' guilt was fal,;o, and on such a
theory there could be an explanation of tlic circumstances con-
sistent with the innocence .of the defendants.

The second refused instruction asserted that the jiolicy of
the law is, that it is better that ninety and nine, or any lunn-
ber of guilty persons, should escape, than that one innocent
man should be convicted, and that it is not sufficient to author
izo a conviction that the greater weight or preponderance of
evidence supports the allegations of the indictment. There is

PEOPLE V. HALL.

357

no policy of the law upon the subject, or for the consideration
of the jury. It is not within the purpose of the law that any
guilty person should escape, or any innocent one he convicted.
The question for the determination of the jury is that of the
guilt or innocence of the accused, and it is not for them to in-
quire what is politic to do. If the greater weight or prepon-
derance of the evidence be such as to satisfy the jury, beyond
a reasonable doubt, of the defendants' guilt, then it would be
sufficient to authorize a conviction.

The third refused instruction laid it down as the duty of a
juror not to yield to the mere importunities or persuasions of
other jurors, but only to yield to his own sound and mature
judgment, based solely upon a fair and candid consideration
of the evidr ice. Tliis instruction was properly refused, as
holding out encouragement to the jurors to adhere obstinately
to tlioir individual opinions, and not to be influenced by the
views of, or deliberation with, their fellow jurors.

Finding no material error in the record, the judgment must

he a Hi r mod.

Judgment affirmed.

People v. Hall.
(48 Midi., 482.)

Murder by poison: Degree of murder — Order of proof — Malice — Draxc-
ing jur;/ — Witnesnes — Separate examination — Credihilitij — Convic-
tion of fcloni/ — Heading books to jiiri/ — Expert evidence.

1. Deoree or jniRDER. — Muv<lor hy poisoninpj is murder in the first dogroe,
iuid a jury should ho so charf^od where the information does not state
its def;reo or the mode of its commission; and whei j a jury does not
liud that a crime is in the first degree it is error for tht judge to punish
it its if it were.

!?. Coiipus DEMCTI.— In prosecutions for homicide the corpus delicti must
he sliown first, so far as the testimony ran be separately given, and
especially so far as can ho shown from post-mortem examinations.

3. Mamc'E. — In a prosecution for murder proof of malice alone has no tend-

ency to i)r()ve that death was caused hy crime, until the fact of death
hy criminal means has been shown ; proof of malice may then bccomo
relevant to show a motive.

4. I)RAWiN(t OP JURY.— The jury act of 1877 (act 125 of 1877) requires the

names of juroi-s to be drawn in turn from septu-ate parcels oontaining

f-^m'i

358

AMERICAN CRIMINAL REPORTS.

names from each precinct in the county. There is also a provision
for ordering talesmen to be drawn from a single township where the
emergencies of the term do not leave time for summoning thorn from
the county at large. But a jury drawn threo weeks before trial for a
particular case of homicide is illegal if taken from only part of the
townships in the county and those not adjoining the county scat nor
including the locality of the offense.

5. Witnesses to be sepahated, — Resjjondent's request, in a case' of hom-
icide, that the witnesses may be examined separately and not in one
another's presence, should bo gi-anted, if seasonably made.

C. Apuino names op wiTNlfSSES TO INFORMATION. — In a criminal prosecu-
tion the names of witnesses cannot, against objection, bo added to the
information without a showing that they were not known earlier, and
in time to give defendant notice in season to anticipate their presence
before trial.

7. Testimony as to conduct ok prosecutor. — It is error, in trying a

criminal case, to exclude questions as to the conduct of the prostKutioii
in seeking to induce the witness to suppress testimony or voluntet-r
imi)roi)er testimony.

8. Expert testimony — Scientific books, etc.— Experts cannot be exam-

ined upon theories that are contrary to the uncontradicted facts of the
case; sucli testimony is legally admissible on the gi-ound only, that
ordinary jurymen have no such sjiecial knowledge as will enable Wwm
to understand the facts shown, without interpretiition ; it nmst, there-
fore, be given by living witnesses who can be cross-examined; and the
reading of scientific books to the jur}', as evidence ui itself, is erroi'.

Error to Oakland.
Information for murder.

Camprkll, J. Hall brings error from a judgment on convic-
tion for the murder of his wife. The case was twice tried —
first in June, 18S1, and afterwards in October, 18S1, — the liist,
jury having disagreed. We find in the outset a defect wlii(!li
docs not seem to have been noticed by the parties, but which,
under our advisory duty in ciiminal cases under the statute, we
cannot very well overlook- in passing upon the exceptions. Tho.
information, which conforms to the statute and is in the usual
form, merely charges murd(!r, witliout charging in what way
it was committed or in what degree. Under the statute; the
jury must find the degree of the offense, and it cannot hv.
treated as murder in the first tiegreo unless expressly so found.
Murder by poison, under tlie statute, is always murchn- in I he
first degree, and the jury should have been so chai-ged. They
were, however, by this charge, left at liberty to lind the degree,
and did not find it to bo the first dotfrco.

PEOPLE V. HALL,

359

The sentence, however, expressly treated it <as murder in the
first degree, not only by so naming it, but also by inflicting the
statutory punishment for that crime. If this error had been
assigned, we might have been compelled to determine to what
extent the proceedings could be opened or reversed. As there
are other defects which must lead to a new trial, we need not
now go further in this discussion beyond the suggestion tluit
this is only one of several indications that the trial lacked some
of the elements of a calm judicial proceeding, and that nuitters*
appear to have been lost siglit of which the rules governing
the administration of justice required those conducting the
prosecution to keep in mind.

The first of these, and one which in several different ways
Avas brought to the attention of the court below, but ruled
against, was the rule wliich requires the corpus delicti to bo
shown befoi'o any other testimony is directed against the pris-
oner. In many, and perhaps in most, cases the order of proof
is not very essential. But in cases of homicide, and in others
where justice demands it, the prosecution sliould not bo allowed
to proceed furtlier until the death and its character shall have
been shown, as far as the testimony can be separately given,
{\x\'\ especially so far as can bo shown from the ])ost-mortcm
examinations. Under our system of informations the prosecu-
tion must always have knowledge, in advance of the trial, con-
cerning the case intended to be made out, and there can be no
good reason for ])ursuing the course which was allowed to bo
taken here. Instead of showing in the outset the death of
Mrs. Hall, the examinations of her remains and their several
analyses, and the medical opinions, indicating or not indicat-
ing death by poison, the lirst testimony introduced was for the
oidy and obvious purpose of creating a prejudice against the
accused by i-aising suspicions — Avhich this particular testimony
was not legally sullicient to establish — that he had been at
some former })eriod intimate with another woman. The testi-
mony did not tend to prove any lack of harmou}" or kindness
between the ])risoner and his wife before her death; but had it
done so, it was improper to show it until the evidence that she
ha<l b(>en poisoned and died from poison had been introduced.
All the nuilico inuiginable is no proof in itself tending to
show that death was caused by crime. When there is legal

r-l

300

AMERICAN CRIJUNAL REPORTS.

evidence loading to the belief that homicide has been com-
mitted, the motive of the criminal becomes important, and the
relations of parties may therefore become relevant. This
difficulty was not confined to the question of the order of
])roof, for in \vhat was done in charging and in refusing to
charge the jury did not receive that careful instruction which
the cii'cumstances called for, against allowing the crime itself
to be presumed or to be ascertained by any but distinct and
adequate proof.

Before referring to the more definite defects in the proceed-
ings at the trial, some notice must be taken of the preliminary
proceedings.

Wo have not sufficient facts before us to render it proper to
say whether the venue should have been changed on the show-
ing made, which is not brought up with the record. But the
proceedings to summon jurors wore, we think, in violation of
the jury law of 1S77. That law, in order to i)roveut unfair-
ness or ino(]uality in tho distribution of jurors, required the
names of jurors from each precinct to be kept in sei)arate par-
cels, and one name to be drawn from each, before a second
name should be drawn from any, and so successively, in like
manner, Jiowever many jui'ors should be drawn. Laws 1877,
pp. 113, 11-1. There is only one case in wiiich a diU'erent rule
is permitted. It is })rovided by section -' ' (amending Conq),
L., g <5U0l) that when gi'an<l or petit jurors . avo not boon sum-
moned, or a sufficient number of qualified jurors shall fail to
appear, tho court may cause a sufficient numbiu* to be sum-
nioned forthwith, and may, for the purpo.se of ol)l.aining a jury
or talo.imon near tlui ct)unty seat, direct from which township
or supervisor district such jurors shall be drawn. The evident
object of this is to enal)le the court to call neighboring juroi-s
when tho pressure of business will not allow time to summon
them from tho county at large. This section, before its
amendment, left it in tho [)owerof tho court to allow tho sher-
iff to summon such jurors as he chose, or to have jurors
drawn from tho county at largo. Its object was exi)lained in
People V. Jones, 34 Mioh., 215, as designed to meet tho exigen-
cies of the term, and not of partieular causes. In tho present
case the jury was ordered to be drawn from eleven specified
townships (out of the twenty-five townships and such other

II'

ti
n

PEOPLE V. HALL.

301

supervisor districts as existed in Pontiac), more than three
weeks before the time of their appearance, and therefore with
a much longer interval than that allowed for summoning the
ordinary panel for a term. The order does not purport to be
made for the purpose of getting jurors^ near the county sect,
but on the contrary does not rc(iuire a ay juroi-s to be drawn
<Mthcr from the city or township of Pontiac, nor from the four
a<ljacent towns lying south, southwest, west and northwest, —
while the towns actually selected included six towns separated
from Pontiac townsliip by entire intervening tiers of towns,
and distant from six to over fifteen miles at the nearest point
of contact. The order excluded the entire vicinage of the al-
leged offense, not only leaving out the town of Springfield,
but every one of the eight towns surrounding it, two of which
border or corner on Pontiac. The order was not made by the
judg(! of his ov"i motion for general purposes, but on the
suggestion of the prosecuting attorney for this particular case,
hi which it is entitled. The jury was therefore neither a jury
of the vicinage nor a jury of the county at large, nor one
near tlie county seat, nor one desired by tlie judge himself for
the general purposes of the term. It was therefore not sanc-
tioned by law.

The defendant before the testimony was put in requested
tiiat the witnesses might be examined separately and not in
presence of each other, but his re(][uest was denied. There is
no difference of opinion among the authorities on the ])oint
that such a request, seasonably made, should not be refused.
There is some difference as to whether such a refusal, standing
alone, should necessarily bo held illegal so as to require a re-
versal. Without going so far, inasmuch as we may dispose of
the case on the other grounds, we need only say that there is
nothing in this record which tends to show that the request
was not a proper one to Le granted.

Tlie court allowed the names of several witnesses to be added
to the information during the trial, under objection, without
any showing that they were not Irnown earlier and in time to
give defendant notice in season to anticipate their presence bo-
fore trial. Tho sLctuto is explicit that this shall be done before
trial Avhero witnesses are known. Sec. 7938. This is not a
mere formality; and wlierever it has been provided for by

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302

AMERICAN CRIMINAL REPORTS.

statute it lias been treated as a substantial right. Hog. v. Frost,
9 C. & P., 147; Hex v. Lord Gordon, 2 Doug., 591. Two of
these witnesses were the chemists who were emplo^'ed by the
prosecution to make an analysis of portions of the body of the
deceased. Others of them were called to testify concerning
the i)rcparations for making it. One Avas called on to testify
to alleged conversations with defendant more than a month
before the trial.

It appeared b}^ the testimony of Drs. Prescott and Duflicld
that they were employed by the prosecution about three
months befoi'o the second trial, and it appeared furtlier that
their testiuumy was the chief testimony, and practically the
only testimony, tending to show arsenic in the body. The
others were of less consecpicnce.

So far as llickcy is concerned it appeared by his own cross-
examination that he was confined in jail for the felony of
breaking and stealing 8^00 from a safe, and had served a term
in state's prison for a previous felony several years befoi-e.
From a careful examination of the record we think it at least
highly j)robal)le that the conviction was had on this man's tes-
timony. It is very evident that if the defendant bad been
able to hunt up the history of such a witness, the search would
have been important.

In regard to the chemists the facts show that on the first
trial the testimony failed to convict, and that the analysis
which Avas made ])reviously discovered no poison. Aftei- the
failure of the first trial the body was examined again, being
found in another place under very suspicious circumstances,
with no evidence except that of llickey distinctly bringing tlie
removal home to defendant. Ther > was testimony from the
medical witnesses having a tendency to show that the poison
last foimd might have been put in the body after death; and
there were facts showing bad blood between defendant and
some of his neighbors Avho were somewhat zealous against
him. Practically the case on the second trial n-as a new case;,
and the defendant wr.s not informed of the witnesses to it
until the trial began. This was an unfair suppression, in con-
travention of law.

We think it was error to prevent witnesses from answering
questions as to conduct of the prosecution in seeking to induce

PEOPLE V. HALL.

them to suppress testimony or volunteer improper testimony
not admissible and not asked for. There is no more reason for
exomptin*^ tlie prosecution than the defense from scrutiny con-
cerning tampering with witnesses,

Tlierc were several questions answered by medical experts
upon theories put to them wliich were contrary to the positive
and uncontradicted facts. Such questions were improper and
misleading. Some other rulings might be referred to, but
we do not thinlc it inn)ortant to dwell upon them except as to
some refusals to charge.

A witness, Clifford, was called ostensibly to show that Hall
was concerned in the removal of his wife's body from the
grave-yard. lie stated that llall did not know it was to be
put where it was fouiul, but to a series of questions concerning
Hall's complicity in it he refused to answer on the ground that
it might crimimite him. The court refused to tell the jury
they iiad no right to infer anything against Hall from Clifford's
silence. This was clearly wrong. Clitford had not testified to
any fact whatever indicating that he or any other person
naniod either removed the body or had any ])art in it. lie re-
fused to answer at all bcvoiul the single answer that Hall did
not know where it was to be placed. H moved without Hall's
consent it would have been a crime. If otherwise, it might or
might not be, according to its purpose.

If the silence of a witness can be treated as evidence against
a party Avho cannot compel him to answqr, it would not be dif-
ficult to make out a case against any one on mere insinuations.
It was the duty of the court to caution the jury against this,
but this was not only refused, but that removal was dwelt on
far enough to lead them to regard it as significant, which ren-
dered the caution itself more necessary.

Wo thi'ik, also, that it would have been highly proper that
the couru should, when recpiested, have called the attention
of the jury to II ickey's position as affecting his credit. For-
niorl}^ he could liave not been sworn at all. The statute did not
abrogate entirely the effect of conviction of an infamous crime
on a witness, but still allows it to be shown as a distinct fact
bearing on his credit, (/onip. 1.., Jj tyiHW.

We observe that resort was had to reading medical books to
the jury, the record not showing, however, what matters were
thus laid before them. If this was anything it was evidence,

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364

AMERICAN CRIMINAL REPORTS.

and probably evidence which was used with some effect. The
practice is not permissible. Scientific or expert testimony
must be given by living witnesses, who can be cross-examined
concerning their means of knowledge, and can explain in lan-
guage open to general comprehension what is necessary for the
jury to know. The only legal reason for allowing the evi-
dence of opinions is found in the presumption that an ordinary
juryman or other person without special knowledge could not
understand the bearing of facts that need interpretation.
Medical books are not addressed to common readers, but re-
quire particular knowledge to understand them. Every one
knows the inability of ordinary persons to understand or dis-
criminate between symptoms or groups of symptoms, which
cannot always be described to those who have not seen tlioni,
and which with slight changes and combinations mean some-
thing very different from what they mean in other cases. The
cases must be very rare in which any but an educated pliysi-
cian could understand detached passages at all, or know how
much credit was due to either the author in general or to ])ar-
ticular parts of his book. If jurors could be safely trusted
with the interpretation of such books, it is hard to see on wliat
princii)le living witnesses would be required. Scientific men
are supposed to be able, from their study and experience, to
give tlie general results accepted by the scientific world, and
the extent of their knowledge is tested by their poisdiial
examination. But the continued changes of view br<>, r'lt
about by new discijveries in most matters of science, and the
necessary assumption by scientific writers of some tecliiiieal
knowledge in their readers, render the us(> of such woiks
before juries — especially in detached ])ortions and sclcclcsd
passages — not only misleading but dangerous. Tlie weiglit of
authority as well as of reason is against tlieir reception.

While we feel it oiu* duty to direct a reversal and a new trial,
if the prosecuting autiiorities think it pi'oper to have one, we
think the case is not of such a character that the prisoner
should be deprived of bail.

The judgment must be reversed and the prisoner remanded
to the custody of the sheriff of Oakland county, with the
right at any time of being let to bail in the sum of $3,000.

GooLET and Makston, JJ., concurred.

IIOPT J'. PEOPLE.

3C5

' HoiT V. Pkoplk.

(104U. S., 631.)
Murder: Drunkenness — Instructions imoriting.

1. Intoxication may be shown. — Where, under a statute fixing the de-

grees of crime in murder, and making provision tliat wilful, deliberate,
malicious and premeditated killing shall be murder in the first degree, if
it ai)pear that the accused was intoxicated at the time of the killing, it
is iK'rmissible to olTor testimony of that fact, leaving it for the jury to
determine whether Ills mind was in a condition capable of deliberate
premeditation.

2. An instruction not reduced to writing must refer to authority.—

Where a statute requires instructions to be reduced to writing before
being given by the judge to the jury, and provides that such instruc-
tions shall be taken as part of the record and deemed subjects of appeal,
the judge cannot gi^'C an instruction not reduced to writing otherwise
than by citing the page of the book or law magazine whence it is
taken.

Error to the Supremo Court of the Territory of Utalx.

3fr. R. Mc Bride and J//*. J. G. Sutherlard, for plaintiff in
error.

The Solicitor-general, contra.-

Mr. Justice Gray delivered the opinion of the court.

The phiintifT in error was indicted, convicted and sentenced
for the crime of murder in tlie first decree in the district court
of the tliird judicial district of the territory of Utah, and
})rcsented a bill of exceptions, wliich was allowed by the pre-
siding judge, and from his judgment and sentence appealed to
the supreme court of the territory, and that court having
affirmed the judgment and sentence, he sued out a writ of
error from this court. Of the various errors assigned, we have
found it necessary to consider two only.

The Penal Code of Utah contains the following provisions :
" Every murder perpetrated by poison, lying in wait, or any
other kind of Avilful, deliberate, malicious and premeditated
killing; or committed in the perpetration of, or attemrt to
perpetrate, any arson, rape, burglary or robbery; or perpe-
trated from a premeditated design unlawfully and maliciously
to effect the death of any other human being, other than bim
who is killed ; or perpetrated b}-^ any act greatly dangerous to
the lives of others, and evidencing a dei)raved mind regard-
less of human life, — is murder in the first degree ; and any

3G0

AMERICAN CRIMINAL REPORTS,

other honiicldo, committed under such circjinustancos as would
have constituted murder at common hnv, is nuu-der in the sec-
ond degree." Sec. 89. " Every person guilty of muidcr in
the lirst degree shall suffer death, or, upon the recomiiujiida-
tion of the jury, may bo imprisoned at hartl labor in the })eni-
tentiary for life, at the discretion of the fourt; and every
person guilty of murder in the second degree shall be impris-
oned at hard labor in the penitentiary for not less than live
nor more than iifieen years." Sec. 90. Compiled Laws of
Utah of 1S7(!, pp. 585, 5S().

By the Utali C-odo of Criminal Procedure, the charge of the
judge to the jury at the trial "must bo reduced to writing bo-
fore it is given, unless by the mutual consent of the parlies it
is given orally" (sec. 257, cl. T); the jury, u[)on retiring for
deliberation, may take with theui the written instructions given
(sec. 28'.>); and '' when written charges have been presented,
given or refused, the questions presented in such charges need
not be excepted to or embodied in a bill of exceptions, but tlie
written charges or the rejmrt, with the indorsements siiowing
the action of the court, form pai't of the i-ettord, and any error
in the decision of the court thereon may by taken advantage
of on appeal, in like manner as if presented in a bill of excep-
tions." Sec. 3i:*, Laws of Utab of 187S, pp. 115, 121, 12(1.

It api)oars by the bill of excei)tions that evidence was intro-
duced at the trial tending to sliow that the defendant was in-
toxicated at the time of the alleged homicide.

The defendant's iifth request for instructions, which was
indorsed "refused" by the judge, was as follows: "Drunken-
ness is not an excuse for crime; but, as in all cases where a
jury find a defendant guilty of murder they have to determine
the degree of crime, it becomes necessary for them to inquire
as to the state of mind under which ho acted, aiul, in the pros-
ecution of such an inquiry, his condition as drunk or sober is
proper to be considered, where the homicide is not committed
by means of poison, lying in wait, or torture, or in the perpe-
tration of, or attempt to pei-petrate, arson, rape, robbery or
burglary. The degree of the oll'ense depends entirely upon
the question whether the killing was wilful, deliberate and
premeditated; and, upon that question, it is pro|)er for the jury
to consider evidence of intoxication, if such there be; not upon
the ground that drunkenness renders a criminal act less crimi-

HOPT V. PEOPLE.

sef

nal, or can be received in extenuation or excuse, but upon the
irround that the condition of tlio defendant's mind at the time
tiio act was committed must bo inquired after, in order to
justly determine tlio question as to whetlier his mind was ca-
pable of tliat (k']il)eration or premeditation which, according as
tliey are absent or presont, determine tlie degree of the crime."

Upon tliis subject tlie judge gave only the following written
instructit)n: "A man who voluntarily puts himself in a con-
dition to have no control of his actions must 1i; held to intend
the conso(]nences. The safety of the community requires this
rule. Intoxication is so easily counterfeited, and when real is
,;u often resorted to as a means of nerving a person up to the
commission of some desperate act, and is withal so inexcusable
in itself, that law has never recognized it as an excuse for
crime."

The instruction recpiestcd and refused, and the instruction
"iven, being matter of record and subjects of appeal under the
provision of the LFtah Code of Criminal Procedure, sec. 015,
above quoted, their correctness is clearly open to consideration
in this court. Young v. Martin, 8 AVall., !?54.

At common law, indeed, as a general rule, voluntary intoxi-
cation affords no excuse, justification or extenuation of a crime
committed under its influence. United States v. Drew, 5 Mass.,
28; United Stafea v. 3 fc Glue, 1 Curt., 1; Commonwealth v.
TIawl'inH, 3 (iray (>Iass.), 4(5;); People v. Rorjers, 18 K Y., 9.
l?ut when a statute establishing different degrees of murder
requires deliberate premeditation in order to constitute nmrder
in the first degree, the question whether the accused is in such
a condition of mind, by reason of drunkenness or otherwise,
as to be capable of deliberate premeditation, necessarily be-
comes a material subject of consideration by the jury. The
hnv has been repeatedly so ruled in the supreme judicial court
of Massachusetts in cases tried before a full court, one of which
is reported upon other points {Cammonwcalth v. l)ori<e>j, 103
Mass., 412), aiul in well-considered cases in courts of other
states. Plrtle v. State, 9 Humph. (Tenn.\ 003; Jlaile v. State,
11 id., 1.^)4; /u'l;/ v. Comviomoealth, \ CJrant (Pa.) Cas., 484;
Iveenan v. C'ommonioealth, 44 Pa. St., oo; Jones v. Common-
wealth, 75 id., 403; People v lielcncia, 21 Cal., 544; Peoj)le v.
Williams, 43 id., 344; State v. Johnwn, 40 Conn., 130, and 41
id., 584 ; J* if/man v. State of Ohio, 14 Ohio, 555, 557.

368

AMERICAN CRIMINAL REPORTS.

And the same rule is expressly enacted In tlio Penal Code of
Utah, sec. 20: " No act committed by a person whih) in a state
of vohmtary intoxication is less criminal by reason of his
having been in such condition. But whenever the actual ex-
istence of any particular purpose, motive or intent is a lUM^cssary
element to constitute any particular species or de^r(>e of crime,
the jury may take into consideration the ' M-t that the accused
was intoxicated at the time, in determining the j)ui pose, mo-
tive or intent with which he committed tlu; act." ('oiupiled
Laws of Utah of IS TO, pp. r)('.S, 5(5!).

The instruction retpiested by the defendant clearly and ac-
curately stated the law applicable to the case, and the refusnl
to give that instruction, taken in connection with the uiupial-
ifled instruction actually given, necessarily preju«liced him
'with the jury.

One other error assigned presents a question of practice of
such importance that it is proper to express an oi)inion upon
it, in order to prevent a repetition of the eri-or upon anotiier
trial. By the provisions of the Utah Code of Criminal Pro-
cedure, already referred to, the charge of the judge; to tlio jury
at the trial must be reduced to writing before it is giv(Mi, unless
the parties consent to its being given orally ; and the written
charges or instructions form part of the record, may be taken
by the jury on retiring for deliberation, and are subjects of
appeal. The object of these provisions is to re<piire all tli(!
instructions given by the judge to the jury to be reduc(Ml to
writing and recoriknl, so that neither the jui'v, in deliber-
ating upon the case, nor a court of lu-ror, upon exceptions (ti-
appeal, can have any doubt what those instructi(ms wen;; and
the giving, without the defendant's consent, of charges or
instructions to the jury, which are not so i-ediiced to writing
and recorded, is error. Fevitcr v. State, 33 Ind., 2S3; Stutc of
Missouri V. Coojx'r, 45 iVfo., 04; People v. Sanfon/, 43 Cal., 2!>;
Gifev. People, 1 Col., 00; Stater. Potter, 15 Kan., 3(»2.

The bill of exceptions shows that the presiding judge, after
giving to the jm*y an instruction recpieste*! in writing by the
defendant upon the general burden of proof, proceeded of his
own motion, and without the defendant's consent, to I'cad
from a printed book an instruction which was not rechiced to
writing, nor filed with the other instructions in the case, but
was referred to in writing in those words only: " Follow this

McDANIEL V. THE COMMONWEALTH.

309

from ]\raoazino American Law Tlegistor, Jul}'', 180S, page 550;"
and that to tlie instruction so given an exception was taken
and allowed.

This Avas a clear disregard of the provisions of the statute.
The instruction was not reduced to writing, filed, and made
part of the record, as the statute required. If the book was
not given to the jury when they retired for deliberation, they
did not have with them the Avliole of the instructions of the
judge, as the statute contemplated. If they were permitted
to take the book with them without the defendant's consent,
that would of itself be ground of exception. Merrill v. JS^ari/,
10 Allen (^Fass.), 410.

For these reasons, the judgment must be reversed, and the
case remanded with instructions to set aside the verdict and
order a now trial.

McDaxiel v. TnE Co^rMONWEALTn.

(TTVa., 281.)
SIi'RDER : First degree — Second degree.

1. Pr.vctic'E — New tiuvls. — Much caution is used by this court in granting

a now trial wlicro it is aski'il Ht)lcly on the ground that the verdict is
contrary to evidence, great weight being given to the verdict of the

2. 0.\rs ox rnosECUTiON to snow murder is in the first degree.— To

constitute the olTense of murder in the first degree, the kilUng nuist be
predetermined, and not xmder momentary impulse of passion; tliough
the determination need not have existed any particuhu' Uuigtli of time.
Prima facie, all liomicide is murder in the second degree. Onus on
prosecution to raise the offense to the first degree.

3. What the record must show. — To sustain a verdict of murder in the

first degree, the recoid must show proof, direct or inferential, sullicient to
justify the jury in coming to the conclusion that the death of the de-
ceased was the ultimate result which the concurring will, deliberation
and premeditation of the prisoner sought.

Wm. B. T'lnsleij and Z. S. Manje, for plaintiff in error.
F. S. Blair, attorney -general, for the commonwealth.

HiNTON, J., delivered the opinion of the court.
This is a writ of error to a judgment of the circuit court of
the county of Amherst, convicting Frederick McDaniel, the
Vol. rv — 24

370

AMERICAN CRIMINAL REPORTS.

plaintiff in error, of murder in tlie first degree, and sentencing
him to be hanged therefor. The accused moved the court to
sot aside tlie verdict and grant him a new trial ; but the court
overruled the motion, and to this ruling tlie prisoner excepted.
The 1)111 of exceptions contains a certificate of what is stated to
be tlie "facts and all the facts proved upon the trial." Tlie
only assignment of error is the refusal of the coiu't to set aside
the verdict and to award a now trial.

Upon an application of this kind, this court is always lf)th
to disturb the judgment of the trial court. On this point,
Christian, J., delivering the opinion of the court in l^ri/ors
C(xs<?, 27 Gratt., 1010, said, "this court has always acted with
great caution in granting new trials in castss where the new
trial is asked solely upon the ground that the verdict is con-
trary to the evidence, and great weight is always given, and
justly so, to the verdict of the jury and judgment of the court
in which the case is tried. Tlie eases arc very rare in which
this court interferes, and it is only in u case wluM'o tlu^ (nidoiice
is plainly insullicient to warrant the linding of tho jury.'' I
fully recognize the salutary intluence of this ruhs and liaw^ no
])urpose to relax its operation. l>ut I think we may remand
this case for a new trial without being amenable- to the charge
of violating its spirit or provisions in the si)ecial ciiruiiistanc(>s
of this case. I [)roceed to state as brielly as I can sonu? gen-
eral doctrines of the law of homicide, which will, I think, ma-
terially assist us in ari'iving at a correct conel'isinn upon this
point. Every homicide under our statute is yy/v'^/^^/'^^'A- a case
of murder in the second degree. And it is incumlxMit u|t<»u
the commonwealth, in a case like the present, where the olb'iist'
was not committed by any of tho speciilc means emnuci--
ated in tho statute, that is, " by poison, lying in wait, imprison-
ment or starving, nor in the commissic u of, or attempt to
commit, arson, rape, robbery or burglary," in order to elevate
it to murder in the first degree, to prove by evidence. (mIIkt
direct or circumstantial, beyond rational doubt, that the killing
was "wilful, deliberate and premeditated." And on the (»tlicr
hand, the l)urden is upon the accused, if ho would reduce the
offense below murder in tho second <legree, to sh(>w the absences
of malice and the other mitigating circumstances necessary for
that purpose.

McDANIEL V. THE COMMONWEALTH.

Oil

Xow to constitute a "wilful, deliberate and premeditated
killing," it is neecssaiy that tiie killing should have been done
on purpose, and not by accident or without design; that the
accused must have reflected with a view to determine wlicther
he would kill or not, and that he must have determined to kill,
as the result of that reflection, before he does the act — that is
to say, the killing must be a predetermined killing upon con-
sideration, and not a sudden killing upon the momentary ex-
citement and impulse of passion, upon provocation given at
the time, or so recently before, as not to allow time for reflec-
tion; and this design to kill need not have existed for any
pjirticular length of time, it may l)o formed at the moment of
the commissifm of the act. K'ni'ft^ Gfi^e and note, 2 Ya. Cas.,
84; l]7>J/r;ror<r.s <\is>; (i Kand., T-H ; Jvik'-s Case. 1 Leigh,
5!»S; JIUFx ('<Ks,\ 2 Graft., .'!).'); Iloicirx Case, 20 Gratt., O'.)";
Wn'r//>fs Case, .'5:5 (Jratt., ssf ; ]\'n)//>rs Case, T.") A^a. 11., 01*.
"With these familiar principles of the law of homicide in mind
we now come to examine the facts of this case.

From the cerf ificate thereof, it appears tliat the prisoner, Avho
livi'il in a cabin in the yard, and u])()n the hind of the <leceased,
near Pedlar Mills, in the county of .Vndierst, went on the 2+tli
day of January, 18S2, to a mil) a few miles distant, and that
one of the horses which he drove to the wagon on that occa-
o'nm was loaned trt him by the deceased; that he retui'ned
Avilli the wagon about two hours after sundown, and that at
that time the deceased was absent from home; that the wagon
AVi's then sent for a load of wood, a small s(m of the prisoner
driving it. It I'eturned with the wood a little v. idle after dark,
and the prisonei' commenced unhitching the team, when the
deceased went out to the wagon, and may have assisted in un-
hitching. A quarrel ensued between the ])risoner and the de-
coaseil, both of whom were in li(pior, although not drunk.
Tile deceased had ♦aken a drink at a negro man's cabin just
bt'fore night. The dece:>s(Ml charged that the prisimer had
neii'leeted his horse in not feeding him during the dav. Loud
and violent language was used, in the course of which the
jirisoiuM'gave the lie to thedeceasedas to the charge of not feed-
ing his horse. The deceased ai)i)lied harsh and profane language
to the ]M'isoncr. The prisoner having unhitched the horses
carried them to the creek to water them. After the prisoner

3T2

AMERICAN CRIMINAL REPORTS.

got buck with the horses from the creek, which was some <lis-
tiince oir, lie led the horses around the road, just outside of the
fence, on the way to the stable, and when he came to the wood-
pile by the side of the yard-fence, the deceased, whoso wife
had vainly tried to detain him in the house, came towards the
fence and towards the prisoner with a walking-stick of dog-
Avood, light and not long, in his hand; that whilst his wife
was trying to detain him in the house, the deceastul said he
icouhl not stand what the p/usoner had said. She followed liiui
to the fence. There was a stick used in plowing, commonly
called a leai'lnf/stiel; about four feet and a half long, and about
three and a half inches in circumference, of seasoned white oak,
lying on tiie wood-}>ile. And this stick the prisoner ])ieke(l up.
That the deceased demanded to know why the priscuier stood
holding the stick in his hand; to which the prisoner said: "If
vou come here I Avill show vou." The fence around the vard
at this })oint was a low one, not more than about two and a
half feet high, so that a man could step over it, and this ])oint
Avas about twelve or lifteen yards from the house of the de-
ceased. This was about Jifteen or twenty minutes aftei" the
lirst quarrel at thi^ wagon. The deceased raised his sticlc to
Avard olf a blow from the prisoner, and maybe, ho struck at or
struck the lU'isoner. The prisoner then stepped over the fence,
struck at the deceased and knocked the walking-stick out of his
hand; and with the bearing-stick struck the deceased two blows
over the head. From the llrst blow, which Avas above tli(! left
eye, the deceased was a})parently made insensilde, l)ut did not
fall. The second blow fractured and indented the skull beliiiid
and above the left ear. He never si)oko afterwards, and died
Avithin about two hours from the ed'ects of the blows.

These being all the facts proved on the trial, as the jiitlge
certities, do they make out a case of " wilful, deliberate and
premeditated killing ?"

The prisoner certainly killed the deceased, and it is equally
certain that this was not accidiMitally <lone by him. I>ut this is
not enough to constitute a case of murdei* in the first degree.
]>efore Ave can pronounce him guilty of murder in the lirit
degree Ave nuist be able to iuul, in the certiiicate of facts,
proof, dii'cct or inferential, suflicient to justify the jury in (oin-
in": to the conclusion that the death of the deceased was the

McDANIEL V. THE COMMONWEALTH,

373

ultimate result which the concurring will, deliberation and pre-
meditation of the prisoner sought. Jones'' Case, 1 Leigh, (>11.
If we fail to liiul this measure of proof the case falls short of
murder in tlic first degree. For it is laid down and helieved
to 'be undoubted law, that, in all cases of slight and insufficient
provocation, if it may be reasonably inferred from the wea]ion
made use of, or the manner of using it, or from any other circum-
stance, that the party intended merely to do some gi'oat bodily
liarm, such liomicide will bo murder in the second degree, in
lilce manner as if no provocation luid been given, but not a case
of uup'der in the first degree. Davis' Cr. L., 99.

In tliis case there liad been a quarrel between the prisoner
and tlie dec(>ased, wliilst lie and, porha[)s, the deceased were
unliitoliing tlie liorses, but there was no disposition shown by
tlie })i'isoner to strike tlu' <leceased eitlier with Ids lists or Avitli a
Avca|)()n at tluit time. On the contrary, he unhitches tlie horses,
leads tliem to Avater, and is in the act of quietly leading tliom
to the stable, wlien just as lie arrives at the wood-pile, wliore,
doubtless, the wagon-load of wood had just been deposited, lie
peiveives the deceased, in spite of the entreaties of his wife,
armed with a walking stick, coming towards him and bent
ui)on having a diflieidty with him. In this condition of alTaii';-,
instead of selecting from the load of wood a stick of wood,
one blow with which would have been certain death, ho stops
and ])icks up a stick of c(>nij)ai':<tively insignilicant prop; )rt ions,
which he finds lying on tlio wood-pile. It is true that when
the deceased asked him why he stood there holding that stick
in his hand, he replied, ''If you come here I will show you,"'
I>iit this language, in the light oF what subseijuently happened,
can only be interpreted to mean something like this, namely:
"Whilst I shall not seek you, yet if you shall attack me with
that cane, I shall repel your attack with this stick. This lan-
guage, instead of revealing a deliberate and preconceived i)ur-
pose to kill, would imply, it seems to me it might well l)e
argued, that in the event the deceased kei)t away from liiin. it
was not his purpose to bring al)out a dilHculty. At any rate I
do not think that, from this language, even if coupled with the
blows inflicted on the deceased, without anv other acts or
declarations shedding light upon the intention of the prisoiuM*,
the jmy were warranted in finding, or that this court would

0»:

AMERICAN CRIMINAL REPORTS,

be justified in holding, that the prisoner killed the deceased
in pursuance of a deliberate and preconceived purpose to kill
him, and that, therefore, this was a case of murder in the lirst
degree.

It is not intended to intimate in anything that has been said
in this ojjinion that the stick used by the prisoner in his en-
counter Avith the deceased was not a deadly weapon, for the
fatal effect of its use in this case but too surely establishes its
deadly character when used by a person of the prisoner's
strength, nor is it intended in anywise to contravene that wise
and wholesome rule, " that a man must be taken to int nd that
which he does, or Avhieh is the nature and necessary coiis(!-
queiK'o of his act." Mm-pJufH C<m\ 2:? Gratt., 972 ; /////'.v rW.sv,
2 (iratt., .")!).■), All that I do mean to say is, that giving to tliis
rule its jn'oper scope, in the meager and peculiar circumstances
of this particular case, tliis court is not warrantrnl in presum-
ing fi'om the mere use of this weapon, witliout any words
otlior tlian those heretofore mentioned, or circumstance either
l)cfoi'(i or after, or at the time of, th(! Icilling, going to show the
intention of the piisoner that the j)ur[)os(^ of the pi'isoiu>r was
not eitiier to foi'cil)ly repel the attack of tlie deceased nor to
indict grievous bf)dily harm upon him, but to kill liim.

For these reasons I am of opinion that the judgment of tlio
cii'cuit court of Andierst county be reversed and aiinu]i(>d, the
verdict of the jury set aside, and that a new trial be awarded
the plaintilf in error.

RicHAnosoN- and Fauxtl]:uov, JJ., concurred in the opinion
of Ilinton, J. ^

Lkwis, p., and Lacv, J., dissented.

The order was as follows:

Tliis day came again as well as the ])lainti(f in error ]>y liis
counsel, as the attorney-general on beiialf of the coi.inu)n-
wcaltli, and the court having matur(;ly considered the tran-
script of the record of the judgmentaforesaid and the arguments
of counsel, is of opinion, for reasons stated in writing and liled
Avith the record, that the judgment of the said cii'cuit court is
ei-roneous in refusing to set aside the verdict of the jury and
to grant a new trial to the plaintilf in error.

STATE OF NEVADA v. KING.

3Y5

ill

lid

Ml-
llO

its
•r's
iso

1S(!-

/■s/\

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1111-

W.IS

1' U>

It is tlicroforc considered by tlic court that the said judg-
ment be revei'sod and annulled, the verdict of the jury set
aside, and a new trial awarded the plaintiff in error.

Which is ordered to be certilied to the said circuit court of
the county of Amherst.

JRevei'secl.

State of !Nevada v. Charley IIino.

(10 Nov., 007.)

MuKDER: IiKlictmcnt — Challenge of jurors — Conscientious convictions —

Vrcdibilitij of witness.

1. MnniKU — iNOU'TMENT FOR — WU.FUL, DELIBERATE AND PREMEDITATED —

MalU'K AKoirvrnouutiT. — In roviewing an indictment for murder,
/(('/(/, llir.t cliuif^ing the liomifide to have heen with "malice afore-
th( )ii;:;li I, " is tiuitanumnt to an avoriucnt tliat the act was " wilful, delib-
erate and jireiiK'ditated."

2. Tiie jiUowaiue of a challenge for implied bias is not the subject of an

exceiition.

3. Gei.t.iial ou PARTicrr.AR CAUSE OF CHALLENGE — Conscientious opin-

U)Ns. — A juror was excused upon the ground that he entertained sudi
(•oii.sriciitiuus o]>inioiis concerning capital punishment as would ])re-
clude his Ihiding defendant giiilty ot an offense punishable with death.
i/(7(/, that the objection to the juror did not go to the general cause of
challenge, that lie was dis([uali)ied from serving in any case, but to the
l)iirtkii!ar cause, that he was dis(iualiried from serving on the case on
triiil.

4. CREDiniLiTV OF WITNESSES — INSTRUCTION.— In reviewing an instruction

relative to the credibility of a witness jointly indicted with defendant,
held, that the attention of the jury may be directed to the peculiar
circumstances surrounding any witness tliat are proper to be considered
in determining the weight to be attached to his testimony.

X, A. Iiii<'lne)\ for appeUant.
M. A, Murphy, for res[)ondent.

By the court, Bklkxap, J.

A])pellant was convicted of the crime of murder of the first
degree and sentenced to be executed. He appeals from the
judgment and from an order overruling his motion for a new
trial. The first assignment of error arises upon the action of
the court in overruling a motion in arrest of judgment, founded
upon the alleged insulficicncy of the indictment to support a
judgment of conviction of murder of the first degree.

376

AMERICAN CRIMINAL REPORTS.

The indictment charges that the defendants Charles IIin£r and
Tang Yan, " on the Sth day of May, A. D. 1881, or tlioreabouts,
and before the finding of this indictment, at the said connty of
Humboldt, state of Nevada, without autliority of law, with
malice aforethought killed," etc. The statute defining the
degrees of murder provides, '"all murder wliich shall be ])Ln'-
l)etrated by poison, or lying in wait, torture, or by any other
other kind of wilful, deliberate and premeditated killing, or
Avhich shall be committed in the perpetration, or attempt to
perpetrate, any ai-son, rape, robberv or bui'glar}', shall bo
deemed murder of tlie first degree ; and all other kinds of nmr-
der shall be deemed murder of the second degree. . . ."

Frtmi this definition of murder of tlio first degree, it is ai'gued
that as the indictmeiit failed to avor wilfulness, delibei'ation
and premeditation, Avhich are essential constituents of the criiuo
of murder of the first dcigive, it does not sup[)ortthe judgment
rendered. Tiie statute declares that the indictment shall be
sufficient if it can be miderslood therefrom " that the act or
omission charged as the olfeiise is clearly and distinctly set
forth, in ordinary and concise language, without repetition, and
in such a manner as to enable a pei'sonof common uuflerstand-
ing to know what is intended." Sec. 2^^'2'>^, Comp. L.

The indictment meets all of the rctpiirements of this section
of the statute; it follows the form prescriluKl l>y the legislature
for indictments for murder in charging the act to have been
done with "malice aforethought," and such charge is tanta-
mount to an averment that the act was "wilful, delilterate
and ])remeditated." People v. Dohin, 9 Cal., 57*1; People i\
Jf ((/'/■(()/, 10 id., 309; Ptvjde v. Va/iee, 21 id,, 100; iSfatc r.
77iompson, 12 Xev., 110; Sfafe v. 6'/-a:/<r, id., 3U(».

The next pohit relied upon is the allowance of a challenge
l)y the district attorney for implied bias to one .Tames A. Itob-
inson, who had been returned u[)on the venire, and who was
excused upon the ground that he; entertained such conscien-
tious o})inions concerning capital punishment as would preclude
liis finding a defendant guilty of an olfense punishable with
death.

In State v. Za?'lin, 11 K'ev., '514, and in State, v. J*/u'!<7tar//,
15 id., 79, this court held that the allowance of a challenge for
implied bias was not the subject of an exception. So it has

STATE OF NEVADA v. IIING.

been repeatedly held by the supremo court of California, iind.ir
a statute similar to ours. Peo^de v. Jlui'p/tt/, 45 Cal., 137; Peo-
p/c V. Cutta, 49 id., 107; People v. Vunfjue^, id., 500; People v.
Athei'toH, 51 id., 11)5.

The reason ui)on which this ruling is based is well stated in
People i\ MuipJoj^ 15 Cal., 112, in the following language:

"J»y tlie criminal practice act (sec. i;5o), it is provided that
an exce])ti()u may be taken to the decision of the court upon a
matter of law in distdhncliKj a clidlhtuje to a juror for uupl'ied
h'ui.s. Th(ia(;lion of the court in (</Aj//.v*/iiy such a challenge is
not included. but is omitted, an<l e.r tndiixtria omitted; in other
words, excluded by the statute itr.elf as forming the subject of
an excei)tion. This distinction was pointed out by the attor-
ney-general in People r. Steuxirt, 7 Cal., 110, but was then
ai)i)ai'ently overlooked by the court; at least it was not ad-
verted to in the opinion delivered in that case. The reason,
and it is a sensil)le one, upon which the statute proceeds, is
that when a competent jury, comi)osedof the recpiisite number
of persons, has been impaiu'led and sworn in the case, the pur-
pose of llie law in that I'espect has been accomplished; that
tlioiigh in the impaneling of the jmy one competent person 1)0
rejected, yet, if another competent pers<m has been substituted*
in his stead, no injury has been done to the prisoner, certainly
no injury which a new trial would repair, because even should
a Venire tie iioro be awarded, it is not pretended that the pris-
oner c(nild insist upon the excluded person being sjjecially
returned upon the panel. The result would be that the prisoner
would probably be tried again by another competent jury, of
Avhich the excluded jxn'son would not be a mend>er, and so the
new trial would oiUy be to do over again that which had been
doiu» already.''

L'pon this subject it is further contended that the action of
the court sliouhl be reviewed because the ground of challenge
is, in fact, gemn-al rather than ]>articular.

Section ii)Ol declares: ""A challenge for cause may bo taken
by either party. It is an objection to a particuhir juror, and
is either: First, general, that the juror is discpialiiied from
serving in any case; or, second, particular, that he is disquali-
lied from serving in the case on trial."' Section 1903 defines
implied bias to bo such a bias us, Avhcn the existence of the

■^^PJl"

378

AMERICAN CRIMINAL REPORTS.

facts is nscci'tainod, in jiul<j;iiiont of law disqualifios flic juror,
and this is ])i'<»i)(>i'ly n\a(loono of tlie ])arti('ulai" causes I'oi- clial-
len<^t'. Tlio sul)soqiiont section, in itsnintli sulxlivision, declares
that if the olfenso charged be punishable with death, the entor-
tainin<^ of such conscientious opinions l)y the juror as would
preclude his finding the defendant guilty, shall bo cause for
challenge for inii)lied bias. It is apparent that the oltjt'ction
to the juror did not go to the general cause of challenge, that
he was distpialilied from serving in any case, but to th(' pai-tic-
ular cause, that ho was discpialilied from serving on tlie raso
on trial.

The third objection is taken to the giving of an instruction
touching the nr.itters proper for the jury to consider in deter-
minin<>' the credibilitv to be •'•iven to the testimonv of Taiiir
Yan, who was jointly indicted with appellant.

The instruction is as follows: "The defendant, Tang Van,
has olfered herself as a witness in behalf of the defendants in
this ti'ial, and in considering the weight and etfcsct to Ik^ given
to her evidence, in a<ldition to noticing Ian' manner and
the probability of her statements, taken in connection with
the evidence in the cause, you should coitsidcr her ivlation
and situation under which she gives her testimony, t lie eousf^-
(juences to' her relating from the result of this trial, and all the
inducements and temi)tations which would ordinarily iiillueiicc?
a person in her situation. You shouUl carefully determini! tiie
amount of credibility to which her evidence is iMititled. Jf
convincing and carrying with it a belief in its truth, act upon
it; if not, you have no right to reject it."

The point of the objection appears to be that Avhilst this in-
struction was correct in so far as the testimony of Tang Yan
applied to herself, it ])laced her testimony rekiting to appellant
in a less favorable light before the jury than that of the otlier
witnesses. The objection is untenable. Whilst it is customary
for courts to instruct juries in reference to the testinjony of
defendants in criminal cases, who olfer themselves as witnesses,
the attention of the jury may be directed to the peculiar cir-
cumstances surrounding any witness and proper to bc^ consid-
ered in determining the weight to be attached U) his testimony.
Finally, it is claimed that the facts of the case required the ap-
plication of a rule of law upon which no instruction was given.

COYLE V. COiniONWEALTH.

370

This objection is answered bv the fact that no instruction on
the subject was requested. The oniisjlon to instruct, when not
definitely recjuested, is not tlie subjiict of an exception.

Tlierc beiiif^' no crrcjr in tlio reconl, the order and judgment
are atfirnied, and the district court directed to ai)j)oint a day
for the execution of its sentence.

COTLE V. CoMMON'WKALTH.

(104 Pa. St., 117.)

MuKDEU : Indictment — Pructiee — Ecidcncc — E.rimvts — Authority of judge.

1. AUTICOUITY OP JUIKIE NOT TO BE QLESTIONKT) BY I'KIVATE PARTY.— Ill

tilt' I'xiTciso of liis i>ublic jiulioial liiiictiuiis t!io liiwCul authority of i\
ju(l^(> c.iiinot bo (jiu'stioniMl by a private ih'1*s(>ii. Th.- attiiriK'y-g(?noral,
acting ou behalf of tho state, can alone <ni(>stion, by a A\n*it of qito war-
ranto, Ins oonstitiitioniU rij;ht to exert'is)? his jmlicial functions.
3. At'T i;>rA»usniN(i coukt caxndt he attacked by special plea. — A
lirirtoner, luiiler indictment for murder, cannot, by a s[)ecial \>lea to the
jurisdiction of the c^nirt, impeach the constitutionality of an act of
assembly which desiijnated the county in which sai<l court was held as
a separate JudiciiU district, tipon tlu! allej;ation that saifl county con-
tained less than the number of inhal)itants reiiuired under article V,
si'(.'tion 5, of the constitution, to entitle it to Ix^ constituted u separate
Judicial district.

3. PUDPEU FUNCTION OF EXPERTS.— Tlio proper function of v.-itncsso3 siil>

])o:>naeil to f^ivo testimony jw '•oxpiils" is to instnict the coiu't and
jury in matters so far repioved from the ordinary pursuits of life, that
accurate knowk'd};e «jf theuj cjui only be j^ainetl by study luid ex-
perience; the object being to enable both court tuid jury to jutlKc intel-
li;;ently of the force and api)lication of the several facts introduced in
evidence.

4. Same — Opinion op, when evidence not conflicting.- In a proper

case for expert testiniony, where the facts ai'e admitted, or provetl by
evidence not conilicting, the opinion of an expert upon s^uch facts is ad-
nussil)le as a scientific deihiction.

5. Same — But when conflicting, he cannot be asked opinion drawn

FROM WHOLE EVIDENCE. — But where the evidence is contlictinj?, an ex-
pert cannot be iisUed his opiiuon, as derived from the whole evidence.
The questions to him should state specifically the particular facts in
evidence, hypothetically assuming them to be true, upon which he is
to express his oi)inion. He should be asked, by indi'pendent (piestions,
his opinion as to facts testified to on the one hand, and his opinion
as to opposing facts testified to on the other hand, in such manner
that the jiny can know u^jou what particular state of facts liis several
opinions were based.

380

AIHERICAN CRI5IINAL REPORTS.

Indictment of John Coylo, Jr., for murder in the first degree
of Emily Myers.

II. I. Fixlicr and TT". C. Chapman, for plaintilT in error.

S. 21. Sicojh', (li.strict jittoi'iioy for AdiUiis county, and FJ-
van! />. Zliijh'i-, district attorney for Yorli county, for tlio
commonwealth, defendant in error.

]\rr. Justice Ci.akk delivered the opinion of the court Janu-
ary 7, 1.SS4,

The question sou<^ht to be raised l)y the prisoner's sjx'cial
plea to the jtnisdiction is not pi'opiM-ly before us. Tiu> vi^lit-
ful authority of a jud^^-e, in the full exercise of his public judi-
cial functions, cannot be questioned by any merely privato
suitor; nor by any other, exce|)ting in the form ('specially pro-
vided by law. A judge di' facto assuuus the exercise of a, j)art
of the prerogative of sovereignty, and the legality of that iis-
sumptiou isojK'u to the attack of the sovereign power ahme. If
the question nuiy be raised by one private suitor it may be raised
by all. and the administration of justice would under such cir-
eumslances prove a failure. It is not denied that Judge ^^('-
Lean was a judge ile facio; and if so he is a judge tie jnt'>' iis
to all parties except the commonwealth. The attoi'ucy-gen-
cral, representing the sovei-eignty of the state, by a writ of
quo warranto., m\\f^\i pro[)erly present this constitutional (pies-
tion for our consideration, but it cannot conu; bef»)i'e us from
any other source, oi in any other form. This is not a Ui'w
question; it came before this court \\\ Ihirrdr'i ('(f.<<i\7 ^h\r,
04, and in the case of (larl' v. Conuixunrcdltli, ;) ('iis(>y. 1■J'^.
The same principle is distinctly asserted in Camj>h>ll r. ('nin-
monwcalth, 15 Norris, 344, and has been rej)eatedly appiictl in
many others. This point was not pressed in the oi-al argunu'iit
of counsel, but as it was the subject of the second assignment
of error, we have been obliged to dispose of it. As the pica
to the jurisdiction could not in any event have availed the;
prisoner, even to raise the question intended, it is not only un-
necessary to discuss the grave constitutiomil question suggested,
but the first assignment of error falling with the second, we
need make no further reference to cither.

The third and fourth a'^.si^nments of error are without mei'it.

COYLE V. COJLMON WEALTH.

3S1

It was proppr for tlio crmi't, in tlio cxoreiso of its (liscrction,
to allow the witness, John C'oylc, Sr„ to be ivciillcd for further
cross-exiuninntion ; the olfor was, in part at least, t<) lay ;;round
foi" contra«lietion, and the testimony of Inisweiler was after-
wards properly received for that ])urpose.

\oi' can wo (ind a)iy merit in the fifth or sixth assii^nments.
The testimony on the pai't of th(> defense, as to the prisoner's
habit of resorting- to the woods, and renraining there in an ap-
parently melanclioly state, was ^'•(•neral. not specilic. and the
commcmwealth was thei-c^fore at lil)erty, by the introdiicticm of
siM'cilic facts, to explain the causes wliich, on some occasions,
led to this result. If the proof on part of the prisoner had
been of specific instances, the course of examination insisted
upon by the jirisoner's counsel ini<;ht, perhaps, have been the
])roper one. The testimony of Philip A. Altland was stricken
out of the case bv the court, and the iurv was instructed to
disre<,^ard it; but, if it liad not been stricken ont, it was cer-
tainly competent, by the testimony of Jerry Altland, to con-
tradict John Coyl(\ Sr., and his wife, Avho testified for the
prisoner, in their statem(>nt that they were not present at the
alleged interview in the jail.

The counsel for the prisoner havinf^, in their opening ad-
dress to the jury, referred to concussion of the brain from the
discharge of a gun. as one of the original causes of the mental
disturbances of the pi-isoner, and introcUiced evidence tending
to show that, from that time, his conduct Avas such as to indi-
cate unsoundness of mind, it was, we think, proper to inrpiire
of competent witnesses, Avhether tlie cause thus assigned, and
attempted to be shown, was sufficient to produce the alleged
result. The seventh assignment is, therefore, not sustained.

This bring^s ns to the substantial and important question in
the cause, as raised by the eighth and tenth assignments of
error.

In the examination of experts it is only necessary to keep
constantly in view that their proper office is to instruct the
court and jury in mattci's so far removed from the ordinary
pursuits of life that accnrate knowledge of them can only bo
acquired by continued stndy and experience; the pnrpose is to
enable both the court and jury to judge intelligently of the
force and application of the facts introduced in evidence, as

3S3

AMERICAN CRIMINAL REPORTS.

tlioy would litivo been ablo to do if tlioy liiul ])Qvn j)or.sf>r.s
j)i'o[)ei']y iiistruc'tcd ujxm tlus subjects involved. Kxpcrt testi-
mony, owin^', pei'hiijjs, to the greater extent of reeent scicntilic
reseiircli, is uiucli more fronuently i-esorted to th;>n foi-nierly, and
the rules reyuJating its introduction may bo considered cstal)-
lislied ; there .seems to bo no great conllict of autiiorities on tlie
law ai)])lieab]e thereto.

lu cases involving the question of insanity a uiedieiil expert
may, of course, give his opinion, based upon ))ers(>na] examin;i-
tion and knowledge of the ])atient; but wliere ho is not pos-
sessed of a personal knowledge, his opinion niit.it, as we liavc
said in lionch v. Zt'h)'ln(j, !) P. F. Smith, 74, "be ])rj;!:cate(l of
the facts jtroved or admitted, or of sncii as ii]>|)eiir in evidence
hypothetically stated,'' and this must bo* accepted with some
modification.

Tlie credibility of the witnesses is in all cases a rpiestion
for the jury ; wliat is " pj'oved '' is ior tiieir determination. An
exi)ert cannot, therefore, if the witnesses are conti'ydiclory, be
interrogated as to the eU'ect i)roduce(l upon his mind by all tiie
evidence in tlie cause; and, upon similar ground-!, wjiei-e tlu^
testimony, although not contradictory, is inconsistent or otlier-
wise conflicting, an expert is not allowed to ex])ress an opinion
upon the effect of it, oven assuming the truth of the whole, as
the (juestion of the preponderance of the testimony is also for
the jury; where the truth of the evidence in such case is as-
sumed or admitted, before the (juestion uj)on matters of science
can arise the witness must <letei"mino a (juestion of fact, which
is not a nuitter of science, and it is impossihle foi' the jury to
<letermineof what conclusion of fact the oj)inion <jf the witness
is j)re(licated.

AN'here the facts arc not conflicting, however, and are cither
admitted or proved, the o'pinion of an oxjiert, Innng a coiu;lii-
sion drawn h'oni facts that are known, is admissible as a scien-
tific deduction, according to the skill, exj:c.'ience ami knowledge
of the witness.

The mode of examination which is generally ]MU'sued, how-
ever, is to interi'ogate the witness in hyjiothetical form as to
Avhat state of mind is indicated by certain facts assumed, as
t(.'stifie(l by certain of the witnesses, or by all of them where
they are not in conflict. Thus, by means of the liy[)othesis, the

COYLE V. COMMONWEALTH.

3S3

jury is enabled to detcrinino by the mere form of tlio question
Avliat specific facts are assumed by the expert in his conchi-
sioiis, iWid of wluit liis opinions are predicated; and these
opinions \vill be regarded by the jui'ors in their dehheration,
just as tlioy may iind the facts assumed in eacli interrogatory
to be true oi' not. Even liy[)othetical (questions, liowover, may
pei'haps be framed in such form as, practically, to call ujion the
witness (o pass upon the merits of the case, and if so framed
tliey are as objectioiudde as if they directly interrogated the
witness uj)on the wIkjIc case presented. The examination must,
of ci»;n'si;, be conlined to the laws and conditions of the
specialty in which the exi)ert is skilled, and the hypc^thesis
must he consistent with what api)ears, or what may bo fairly
claimc^d to apj)ear, in the proof; the interrogatories may be
propouiuled from the whole of the evidence, if not conflicting,
or any part of it; but when facts on one side are in conllict with
facts on the other, they ought not, as stated by Aldis, J., in the
case of Juiii'ch'dd v. BitscoiDh, 35 Vt., -tOii, to be incorpoi-ated
in oiu; question, ''Ijut the attentiim of the witness should be
called to their opjxjsing tendencies, and if his skill or knowledge
can furnish the exi)lanation which harmonizes them, he is at
lih;'i'ty to state it."

]\lr. Kedlield, in his treatise on the Law of Wills, page IT)**,
says: "TIk' most convenient mode of ]mtting the incjuiry, and
the least exceptionable one, in our judgment, is to incpiire what
state of mind is indicaied by certain facts assumed or testitied
bv cei'tain witnesses, or in anv other hvpothetical form of
bringiiig the .point of inquiry to the mind of the witness. If
the witness says the facts assumed indicate mental unsound-
ness. h(> may l)e intpiii'ed of in regard to the state and degree
of mental unsoundness thus indicated, and how far it will dis-
qualifv the ])erson for business or render him unconscious of
the nature of his conduct."

At the trial of this case, in the court below, the interroga-
tories to the expert witnesses were put in hypothetical t\)nu:
th{>y were so propounded that the jury would without dilliculty
discover the particular facts uium which the several opinions
W"re given; w]u}ther they were meagerly stated for tiie o])in-
ion of the witnesses thereim was a sui)ject for discussion to
the jury. Each side had the right to an opinion from the

384

AMERICAN CRIMINAL REPORTS.

Avitness upon any hypothesis rcasonahl}' consistent Avith tlie
evidence, and if meagerly presented in the examination on one
side, it may be fully presented on the other; the whole exami-
nation being' within the control of the court, "whoso duty it is
to see that it is fairly and reasonably conducted.

The questions Avere perhaps leading in form, but they Avere
not objected to on that ground, nor Avould this defect in form
ai)]M>ar to have produced any misehicvous results, if avc may
judge of this from the results of the cross-examinations.

It is true, perhaps, that Avhat is merely indicated by cei'tain
facts may not be shown by them. Although the words " show "'
and "indicate" are sometimes interchangeable in popular use,
they are not always so. The present ordinary use of the Avords
discloses a dilTerenco in signification, and that dilference is per-
haps more recognizable Avhcn these terms are applied to the
law or to medical science. "To show" is to make apparent
or clear by evidence, to prove; Avhilst an "indication " may be
merely a symptom, that Avhich ]H»ints to or gives direction to
the mind. The commonwealth, however, had a riglit, we
think, to inquire in projier form, of a competent exj)ei't. Aviiether
any condition of facts assumed, either proved or indicated in-
sanity; whether such facts Avere conclusive, or mere sympto-
matic, or neither. Although tlie commonwealtli's counsel in
the several examinations used the Avord show, the distinction
Avas in each instance fully brought out in the cross-exauiinalion.

The ninth assignment of ei'i'or is to the admission of a ])or-
tion of tlie evidence of Dr. .1. W. (\ O'Xeal. It would iqipear
that the jirisoner had for a, number of years practical the
secret vice of self-abuse, and on Monday ])revious to the lionii-
cide had applied to Dr. JI. K. Noi'ris for treatment, in an
atlliction resulting from that A'ice, Avhich Doctor Xorris Ici-med
"the loss <;f manhood." Dr. Xorris, who Avas ca]l(Ml by tlie
prisoner in his examination and cross-examination. i)articularly
descril)ed the conduct, manner and appearance of the prisoner
at th(> time he a])plied for treatment. In response to a variety
of questions, he says:

" Of course I could not see into his mind, into the intrica-
cies, but Avhat I saw of him that ]Sronday morning, Aviien his
condition was called to my attention, he had the ap[)earaucc of
an abject man, almost on tho A'crgo of despair."

COYLE V. COMMONWEALTH.

385

Q. "When was that?"'

A. "On Monday previous to the commission of this act; and
I there — well, I took particular notice, and contrasted his
appearance then, to all other times, — and I had met him occa-
sionally, as he had been, to the best of my knowledge, under
drink, lie generalh' met me, ' How are you, doctor?' 'xVbout
as middling, ' and ' (live me ten — I want to get a drink? ' He
seemed sad, and with his head down, but at the other times he
seemed to be in better spirits."

Q. " Do I understand that to bo John Coyle's condition ou
the ]\ronday morning i)revious to the act?"

A. " lie presented then to be a man — an abject, des])airing
man."

Q. " Abject aiid despairing, with his head bowed, and what
else?"

.1. "Soliciting help from me, and if not helped would kill
himself."

Q. (l>y Mr. Swope.) "When patients come to consult with
you ^ that is, remembering the ])atient that yftu spoke of — on
occasions as delicate as that, is it not a suf>ject approached
with a great deal of reluctance and regret?"

.1. "Generally so."

Q. " Is it not the custom of every man, always, to approach
tliat subject with sorrow and rei^ret?"

.1. "Sometimes; it is not universal, it is not general, I
ciinnot say that there are mt exceptions to that general rule;
there may be some. I have had sometimes, but they do not
present this invariably, sir, — I cannot say that."

Dr. O'Xeal was called as an expert on the })art of the com-
mon wealtli, and was incpiired of in rebuttal as follows:

Q. " Stat(i whether or not in your practice you are consulted
by persons for the loss of manhood, and cm account of the
secret habit, — this ])rivate vice,— if so, ])lease indicate how
frequently as nearly as you can — and tell the jury, if you
jilease, the way patients approach physicians when they speak
iiljout a complaint of such a character as that."

The i)ur|)ose of this offer, as stated, was to explain the ap-
pearance of the defendant as test i lied to by Dr. Xorris.

A. "I am consulted often, and I think I may say through
the whole period of m}' service, in the practice of medicine,
Vol. IV — 25

mm.

3SG

AMERICAN CRIMINAL REPORTS.

that is, the first part of it, they ' come cliaractovistically.'
AVJion I say 'come characteristically,' I lucan a])i)r<>ach the
subject ^vith a good deal of regret — seem troiililed — their
countenimco indicates; largely their situatitm — they are back-
Avard, they approach the subject by degrees, — tlu^y have ex-
])ressiou of unhappiness, based upon the fact of their having
lost their manhood."

AVe cannot agree with the learned counsel for the prisoner
that tlie admission of this testimony was error. If tin? vice
of self-abuse has such a peculiarly depressing effect upon the
mind, which becomes apparent and obvious to the eye of tlic
expert; if, in general, the conduct and behavior of perscms set
aillicted. influenced by their nu'utal coiulition, is ''ciiaractcr-
istic" and peculiar, it is certainly proper for the ex])ert, wlii>
has the skill from ex])erieuce to detect it, to descrii)e its ex-
ternal manifestations in the conduct and behavior of tlic
patient. The testimony of Dr. O'Xeal had a tendency to ex-
plain wliy, at this ]iarticular time, the prisoner presented
ai)pearance of '»an ahjinrt and despairing man.''

We have examtned with great care the whole record in tliis
case, liled with tiut writ, and we are unable to lind ai\y error
upt>n which we feel justilied in reversing the: judguu'iit of the
court below. The. jury liave found, after a fair, d(*lil»erate and
patient trial, thattlie i)risoner was possessed of a. full knowledge
of the criminal nature of his act, at the time of its commission,
and we cannot (listurl> their finding. It is <uir i)ainl'ul duty,
therefore, to allirm the judgment.

Judgment afiirmed, and it is oi'dei-ed that the record l)e re-
mitted to the court of over and terminer of Adams count v
for the purpose of execution.

Graves v. State.

(45 N. J., 203.)

Mi'KDER: Indictment — InmiiH;/.

1. iNDicTsrENT—McuDKB — Statutory form — Dr.LinEnATKi.Y, etc.— An
incUettuent charging murder in the l.inguiige of tiie forty-liftli sectifni
of the cruuinal procedui-e act is constitutional and logal, aud sufU-

GRAVES V. STATE.

387

cicntly sots forth the nature and canse of the accusation without tht>
use of the words with "deliberation and premeditation."
2. Insanity — When inteupi)SED as a defense.— The defense of insanity-
must be ei-tahhshed liy a ja-ejuinderinu'e of proof; and, in such case, the
Imrtheu is not on the slate to satisfy the jurj' of the sanity of tlio pris-
oner bi-yond a reasonable doubt.

Sioinid Kdlisch, for the plaiiititf in error,
F. \V. Stei'cn-i and (hear Keen, for the state.

The opinion of the court was delivered by

P.i.Asi.Kv. CnncF .IrsricK. The first objection taken to the
proceedings in tl'.is case is, that tlie indictment (k)es not legally
charge the crime of murder in tlie first degree. The pleading
tints challenged is in exact conrornuty Avitli the requirements
ol' the iVc.'ly-lil'th section of the act regulaiing proceedings in
criminal cases (Ilev., p. 2T.V), with the exception that it intei'-
polates the adverl.) "delii)i'rately " in its description of the of-
fense. It follows the statutory language in the essential
particuhu's of charging ''that the deftMidant did AvilfuUy, felo-
niously and of his malice aforethought kill ami murder the
deceased;" so that if there be any illegality in the mode of
charging the crime, as a matter of pleading, the fault is not in
this formula, but in the statute itself. And, in ])oint of fact,
it is this act which the arguuuMit addressed to the court puts
to the test, the first exception to it being that it is repugnant
to section S of article I of the constitution of this stat(\ The
provision thus invoked contains the declaration that in "all
criiuiri^d pi'osecutions the accused shall be infornuMl of the
nature ami caus(> of the accusation." It is also ai'gued that
section \) of the same article rellects a light on the nature of
the jirivilege thus guarantied, in the regulation that "• no ])er-
son shall be held to answer for a criminal offense unless on the
presentment or indictment of a grand jury,'' except in certain
enuuu'rated cases which (U) not touch the present nuitter of
intpiii'V.

The ingenious and elaborate reasoning on which the jiosi-
tion here taken is sought to be held can be thus summai'ized:
That the statute of this state which defiiu's the crime of mur-
der has altered the comnum law t-y adding to the constituents
of the crime in its higher form those of ''deliberation and pre-

388

AMERICAN CRIMINAL REPORTS.

inoditatioii." and tliat as a cotisoqucnce the offense of that
rank must be laid in the indictment witli a special averment of
the presence of such characteristics; and tliat, by the same
statute, tlie offense is divided and made two substantive and
distinct felonies, — the one punishable with death, the other
with imprisonment for a definite period; and that, there^or(^
an indictment which charges in a general form the perpetra-
tion of a murder, without indicating which of these two
separate crimes is meant, does not fulfil the constitutional i-o-
quirement of informing the defendant of the " nature and cause
of the accusation,"

If the l>asis of this reasoning be sound, it is apparent tliat
the result is that there has never been in this state, since tlu^
enactment of this ancient law defining the crime of murder,
and the adoption of the constitution of 1844, a legal iiulict-
ment or a legal conviction with respect to this offense.

There have been no indictments drawn, treating the pro-
vision assigning degrees to the crime of mui'der as having tlio
effect wliicli is now claimed. Such a course Avould be incon-
sistent with the statute itself, for it is drawn with the evident
purpose that the charge should be in the general form, as at
common law. of an accusation of murder, indicating the crime
in its most heinous degi'<>e. This is clearly a))parent from tiie
statutory dii'cction contained in the .section delining tin; crime,
"that the jury before whom any person indletcd for iiiiir<l<i'
shall be tri(Ml shall, if they find such persoii gnilty thereof,
designate l»y their V(M'dict whetlKU' it be murder of the first oi'
second degree." Tliis duty assigned to the jury nectessit.'ites
the crime to be laid in a form that embraces it in both its de
grees. The effect of the statute in (piestion, according to tli<'
entirely--;ettled construction. Avas neither to ad<l any case to
noi' take any case from the class of crimes wliich at common
law was denominated murder, for every act that was murdci-
at common law is still mui'der in this state. AVhat this statute
effected was to distribute the offense into two classes foi* tlie
sake of adjusting the punishment. Those facts that consti-
tuted murder in the second degree were all necessary parts
and constituents of murder in the first degree, and the con-
viction of the lesser crime under the char'''e of the hiiilier
crime wliich embraced it. was, upon well-kuo'

!•

GRAVES V. STATE.

3S0

entirely normal. The practice is consistent with scientific
rules, and, at all events, has been too long established by usage
and judicial recognitions to bo now open to inipeacliment, and
it is manifest tliat tliis interpretation of the statute tak(!S
away from the objection to the late act, which simplifies the
formula of the cliarge of murder, on the ground of its alleged
unconstitutionality, every semblance of plausibility, for the ab-
breviated statement which is authorized plainly informs the
defendant of the nature and cause of the accusation. It does
not interfere with the substance and ])ith of the pleading.
What it effects is to sti'ip it of its teclinical jargon and un-
meaning circinnstances. When, in its succinct accusation, it
avers that the (l(>fendant ''did wilfully, feloniously and of his
malice aforethought kill and mm*der the deceased," its plain
iiicaiiing is that the charge is of murder in the first degree, as
tliiit crime is defined by the laws of this state, and has the
same effect as the old and verbose form of ]ileading in com-
mon use in this respect had possessed. The intention of the
legislature is plain, to substitute a simi)le ])lea(ling for a cum-
brous aiul useless one, and such an amelioration of the law is,
fortuniitely, not iiic<)mi)atible with the constitution.

The objection cannot i)revail.

The remainiii"' <>i'ound of allewd error resides in the refusal
of the court, at the trial, to charge, at the instance of the
counsel of the defenchii.t, the following proposition, that is to
siiy :

" That if the jury have any reasonable doubt as to whether
the prisoner was sane or insane at the time he committed the
;i('t, the doubt should be resolved in favor of the prisoner's in-
simity." The bill of exceptions states " that this pro[)osition
llie court refused to charge otherwise than as had been
charged," ami thereu[)on an exce[)tion was taken.

Fi'om this statcMiu'iit it will be noted that the exception
taken has no connection with the charge actually made to the
jury, except in the respect that a ]'eference to it is necessary
to ascertain whether or not it contained, in substance, the
legal rule as ))roi)ounded by the defense. That it did not con-
tain such rule is evident, and hence the only cpiestion now
before the court for solution is, not whether what the court
said upon this subject to the jury was legally correct, but

390

AMERICAN CRIMINAL REPORTS.

Avhetlier the refusal to instruct tlie jury us rei^uosted was loyal.
Ts it tlie law of this state that when, in a criminal case, the
defense of insanity is inter[)()se(l, if the jury have a reasonable
doubt on the subject, after looking tlirou«ifh the proofs, that
sucli defense shall prevail? Every one versed in the practice
of the criminal law is aware that the proposition claimed to
be law l)y the counsel of the pi'isoner in this case is one, so
fai' as authority is concerned, of the most doubtful of lenal
})roblems. The judicial mind has been so i)er[)lexed with the
subject that it is ditHcult to say whethei' on the allirmative or
the negative side of the (piestion thei'c is a i)rep()nderaiice of
o|tini()n. The elaborate aiid well-considered briefs of thi; re-
sju'ctive counsel in this case are replete with antagonistic de-
cisions on this })oint, many of which are ably ivasoned. iiyd
are, fiom every consick'ration, entitled to the highest icsjiect.
r>ut ahhough the law on this head is thus shown to l)e else-
where in this coiKJition of uncertainty, it does not seem to me
that it can convtly be said to be in such a condition in tliis
state. It is safe to say that for over half a century this prop-
osition now claimed to be law has been i-ejected in our ])ra('-
tice. Our reports show that such re])udiation occurred in
Sjhiir, r\s ('iis)\ which is a case of mark in the criminal aininls
of the state, and which took place in tli(> year 1S|;5. 1 /al)..
3'.)<i. And. indeed, as far as <*.\|)erience or tradition extends, it
has been the invariable course to insti'uct the jury that the law.
y>/v'///(/ /'r/f//. presumes mental sanity, and that when, in llir
given case, the prismier would overcome such presumption, h"
must exhibit a cleai' pi'(>pondei'ance of ]»roof in favoi- of such
<lefense. After such an i)ivcterateand miivei-sal acceptance of a
rule of pi'actical impoi'tanee and fre(pient application, it must
be considered that tiie tinu.' has ])assed for testing its coireei
ness l)y the criterion of sj)eculation. If such a I'ule of evi-
dence, aftei" so consjiicuous and ])i'otracted an existence, is (o
be pushed aside, or even is to be considci'ed as liable to chal-
lenge on theoretic grounds, it is diHicult to divine ujion what
stable l)asis the administration of the law is to be conducted.
Very many of the legal i-eguiations whicli belong to the tiial
of causes, both criminal and civil, are the creatures of custom
ami usage, and if such regulations, after liaving been unipies-
tioned and enforced for half a century, are to be deemed.

GRAVES V. STATE,

391

with respect to their lo<^ality, subject to assault, the utmost
uncertainty and confusion wouhl be introduced. The course
taken by the jud^e on tlie trial in this case was in accordance
witli tlie setth'd law of this state.
Let the judgment be allirmed.

Note. — ^fll)•lIp^• at rommnn lav: and under the sfiitutc. — Sir Edward Coki-'s
(k'linition of inurdt;r is: " VVhoii ii iK'rspn of sound memory and discretion
unlawfully killeth any rea.sonalile creatui-c in beinj;, and luider the king's
licace, with malice aforethought, either express or ini])lied." A purpose or
design to kill was not an essential iufj^edient in nmrder, at eonunon law.
Tlie statutes of many of the states have materially altered the common law
(li'tinition of nuuxler, and have classified the crime into decrees. A^ain, in
many of the states classifying the crime into degrees, the}' have closely fol-
lowed the common law (lescrij)tion, so that in those latter states the form
of th<' indictment for miirder at common law would seem to be sufHcient.
/ As the above decision, therefore, seems to be based upon the i)rovisions of
tile statute of that stale, to make the case of any particular value to tlie jiro-
IVssiou, it is deemed necessary to (piote them. They are as follows: '"AH
murder which shall be ]ierpetrated by means of ]ioison, or by lying in wait,
or any other kind of wilful, delibenite and premeditated killing," etc., " shall
lie deemed murder of the iirst degree."

"In any indictment for murder >r manslaughter it shall not bo necessary
to set forth llie manner in which, or the means by which, the death of the
deceased was caused, but it shall be sullicient in every indictmeut i'or murder
to charge that tlu! defendant diil wilfully, feloniously, and of his malice
aforethought, kill and murder the deceased," etc. Under these iirovisions,
the words used as descriptive of the offense and those which may be em-
ployed in the indictment are essentially different. The lej'islature, proljably,
had the power to jilace the form above the substance, and thus dispense with
the use of the words "(lelii)erate and premeditated" in the indictment, but
without legislation dispensing with their use in the indictment, it would
Neem that a common law form would not be good for murder in the tii'st
d^gree, in lliose stales that liave departed fnmi the common law delinition
and have classitii'il the crime into degrees.

In Iowa the statute di-lining the crime of murder in the first degive is
substantially tlu^ same as the New Jersey statute, and the supnMiie I'ourt of
that state, in Tin' State r. Jitii/le, 28 Iowa, 022, held that an indictment whidi
charged that the killing was "Avilful, felonious, premeditated and with
malice aforethought" was bad as an indictment for murder in the lir&t
degiee, because the word "deliberate," which entered into the definition of
the crime, was oniitted. Beck, J., in analyzing and defining the words of
the statute, says: "The first of these words used, describing the crime,
•wilful," i!ii|)lies that the act was (^//^'f/ by the perpetrator of jmrjiose, with
the intiiit that the life of the party killed should be destroyed. By the use
of the word •deliberate,' in describing the crime, the Idea is conveyed that
the perpetrator weighs the motives for the act and its conseiiuences, the
nature of the crime, or other things connected with his intentions, with a
view to a decision thereon ; thtit ho carefully considers all these, and that

392

AMERICAN CRIMINAL REPORTS.

the act is ii >t -uddenlj' coniiuitted. It implies that the jwrpetrator niiLst be
capable (if iIm' exorcise of such mental powers as are called into use by de-
liberation and the consideration and weij^hiufj; of motives and consequences.
However, if the mind be not in a condition to deliberate, from intoxication
or frt)m any other cause, the offense wt)uld be murder in the second degree.
The word ' itveinrditatcd' implies that the act is done in pursuance of :i
l)rior intention — a premeditation. We observe that these three words con-
vey distinct and indejiendent itleas, and that neither of the others ciui convey
the meaning and force of the word ' «leliberate,' omitted in the indictnieiit."

An indictment which charKeil that the assaidt was wilful, deliberate and
premeditated, and that the blow causinfij death was dealt, wilfully, delilicr-
atelj- and iiremedilatedly, but which <lid not cl\arf;t.' that it was thus dealt for
the piu'pose or with the intent to kill, or that the killing was wilfjil, deliber-
ate and ])remeditated, was held bad as an indictment for nuuvler in the first
degree. The intent to kill nuist Ix; alleged, or words from which the law in-
fers this intent. The State v. McConnich; 37 Iowa, 402; FuuIh v. TlicStutt .
8 Ohio St., 98; Kain v. The State, 8 id.. ;$0«.

And when the 2>itrpi)sc to kill is not averred in the stating part of the indict-
ment, the defect is not cureil by the formal concluding jiart in which it is
averred, " aHci .so the jiirorti . . . do aiiij that 'the ucetixi'd,'' in the
^manner mid 1)1/ the iiiraiis (ifoirmid, . . . jtuvpoHclji, ottd of delibwiite
and premeditated maliec, did kill and murder" tlie drcetised; such aver-
ment being a conclusion of law, and not a statement of facts. Kaiit r.
The State, .•mprn.

Naming the offense nmrder in the lirst degiet' in the introductory and con-
cluding itortions of the indictment is not sutlicient. unlt^ss tlie facts charged
constitute it such. The State r. MeCormiek, mipra. And see generally,
flaf/aii V. The State, 10 Ohio St.. 45!); Bower v. The State, 5 Jlo., 'oM; State
r. Joues, 20 Mo., ".8; St<ite r. Feaster, 25 M>.. '.Vir,; State r. Jlieks. 27 Mo.,
.■)88; State v. Starr, 88 Mo., 270; Com. v. Jones, I J.eigh, 010; JJoornett r.
Com., 8 lA'igii, 74."); Com. v. Green, 1 Ashme.ad (Pa.), 280; Com. v. Murri/,
2 -\shme.ad (Pa.), 41; Com. r. Drum, 28 Pa. St.. »; Kelli/ r. Com., 1 Grant.
4ai; Com. v. Kimj, 2 Va. ('as., 78; Mitehell v. State, .") Yerger (Temi.),
!?40; Davis v. State, 2 Humph. (Tenn.), 430; Swan v. State, 4 Humpli.
(Tenn.), VMi; Chirk r. State, 8 Humi)h. (Tenu.), 071 ; lieleif v. State, 9Huuii)h.
(T(mn.), 040; I'eojtle v. Potter, 5 Mich., 1.

The Statk v. Adams.

Murder: Infants-

(70 Mo., 355.)

■ De(*h pcnaltji — Threats uncommunicated — Threats,
conditional.

1. Infants under eighteen years. — The Revised Statutes of Missouri,
which exempts infants under eighteen years, who commit crime, from
imprisonment in the penitentiary, does not exempt them from the deatii
penalty.

THE STATE v. ADAMS.

393

tlx-

Jon

2. Conditional threats made by the prisoner aiUninsiWe.

3. Between the ages of seven and fourteen yeai's, the law presumes au in-

fant incapable of committing crime, and the onus is on the state .-o
o\ crcome this presumption, which the law 8up[)lies, by satisfactory e^ i-
dence.

Error to ^for^an Circuit Court. Hon. E. L. Echvards, Judge.

James A. iSjmrlock and ^1. W. Anthony, for plaintilT in error.
J). If. Mclntijre, attorney -general, for the state.

Siii;kwood, J. The defendant, a negro boy, twelve years
old tit the time of the trial, October 21, 1882, was indicted for
imu'dcr in the lirst degree, having killed Henry Oslerniann,
:il)()ut seventeen years old, by stabbing him with a pocket
knife, August 1st of that year.

Walton ^McXair, a small boy, twelve years of age, was the
only witness who saw the stal)bing, and testilied that he saw it
(K'c'ur on the hay lield as follows: Henry and Tom were fuss-
iiiH'. Tom called Henry a liar. Henry said if Tom called
him a liar again he wouhl knock him down with the jntchfoi'k.
Tom called Henry a liar again, and then Henry jumi)ed out of
the wagon and took Tom hy the arm and struck him over the
head with the handle of his pitchfork. He hud Tom by the
anil, and Tom had one hand in his pocket and pulled out the
kiiil'e, open, and reached up and stabbed Henry. After Henry
was stabbed, Tom g(jt loose and started to run; then Henry
picked up a rock and knocked him down and then went and
Ix'at him witli a pitchfork. Lev. Smith halloocil to him to
quit. Then Henry (piit and came back and said he v/as cut in
two, and went and laid down and died in a few minutes. The
evidence shows that he was stabbed in the heart with the pen-
knife of Airs. Silvey, his mistress, the blade being about two
inches and one-half long, and slender; also, that when Henry
lay down, sick from the wound, Tom got water and poured it
on his head, trviu": to revive him. But when he died Tom
started off and was traveling the main road to Tipton, when he
was arrested about a mile cfF, and brought back. After he
was arrested ho confessed the stabbing, but said he did it be-
cause Henry struck him with his ])itchfork.

The state proved by Frank AVilliains, a small boy, that he
heard Tom say if Henry did not quit fooling with him he

39-t

AMERICAN CRIMINAL REPORTS.

would cut him witli liis knife, and lie told Ileiii'v of it, and
told hini to (juit fooling' with him. Also "NVm. ('. Silvcy hoard
them fussing- one m(nnin;j: at his barn, and told them to (|iiit
and not I'epeat it in the I'litui-e. This was two months oi* nidie
1)i'f(»i'e the sliihhin^', and tlu! evidence of it and the conditional
thi'cat were ohj(>cted to by (h'femhmt's counsel.

The jury, under the instructions of the court, fouiul defend-
ant guilty of murder in the iirst degree and he was sentenced
accord inii'lv.

I. T/k' <Sf<it>- V. Jho'foti, 71 ^[c, 288, has settled thiit defend-
ant issubjei't to the death ])enalty iu)twithstan<ling he is under
tlieage of sixteen years. The statute is the same tlirn as now.
except the age now is eighteen, histead of, as formerly, sixteen
years. U. S. ls7l>. >J \Wa\.

IF. Tnder the ruling in JoIm-sotiH C(is<', <nif(', ]). I'il, coii-
ditioiial tiii'eats made l)y defendant were admissible. Nor Avas
tlie com[)eteucy (^f the threats alfeeted by their nearness or
rem(»teiu'ss. Kinnr o. St(it<\ IS (la., 11>1; Shftd v. Furd^ '<\
Strobh. (S. C), r.lT; Stnte v. Jlof/f, 4(5 Conn., ;];5<».

III. W(i incline to the opinion that the instructions should
have permitted the jury to have I'oiiml the defemlaiit giulty of
a less grade; ')f homiiide than mui'der in the iii'sl degree, pro-
vided t\u) circumstaiu-es. to be ])i'eseMlly noticed, were sucli as
would admit of his being found guilty of any oll'ense. I!iit
notwithstanding that we say this, we do not say l»ul that there
Avere incidents in the evidence which, if defendant is to he
treated as an adult, would justify an insti'uction foi' niuvder in
the Iirst degree, in addition to those for a lower grade ol
homicide.

IV. And we thiidc that the instructions as to self-defense
were very properly given.

y. Ihit we ai'e very clearly of ojiinion that the coiu't eri-ed
in its view of the law touching tlu^ age <d" defendant. We
refer to the third and seventh insti'uctions given at the instance
of the state. Thos(! instructions virtually told the jiu'v that
defendant's age should not all'ect the coiu-lusion at which lliey
should arrive, anymore than if lie had been of mature; years.
This is not the law. IVtween the ages of seven and of fourteen
yeai-s, the law ])resumes the infant <AV/ i/i<-(f/M.r. If the state
Avould establish the infant to be dolt cajMix (for somethncs

UPHTONE I'. THE PEOPLE.

395

iinilUla siipph't wUitem), the prhixi fmue case of iiiciip.icity to
coimnit ci'iiuo must 1h) overcomo by "ovidonco strong iiiul clear
beyond all (loiil)t and contrjidiclion." 4 IJhiek. Com., :i4; Misliop,
Crim. l.a\v, ^',^ 2^4, I's."), I's.^^/y Stufr r. llidulhj, 4 llarr., utid;
AiKjeloc. J^n/ilc, 1m; JU., '■>\)\). h\ such cases the oii>i.s is on the
state. The evidence in the present case cannot bo regarded of the
cliaract<'r indicated by lilackstone. Indeed, no ell'ort seems to
have been made at the trial to show the delendiint ])()ssesscd
criminal capacity. And the instructions mentioned \V(U'e well
calculated to U'ad tiie jury to iiU'er that without evidence show-
ing such ci'iminal capacity, still they wiM-e justified in convict-
ing d(>iendant even of murder in the lirst degree. And if we
treat the sixth instruction asked by dei'eiulant as given, which
is marked on the margin "refused" {Itarhai v. //r/'/o/v/, 48
Mo., ',Vl'-\), this would not hell) the matter, as it teaches a dilfer-
ent doctrine' from those; already mentioned respecting the
(picstion of age, ami would oidy have been but too well cal-
culated to mislead the jury. Therefore, judgment reversed
and I'ause remanded. All concur.

.\()TK. — By tilt' .stiilutc of Illinois ail infant under tho a^c of ton yi'urs
is iiicupalile of coniMiittiii}^ crinu', and cannot lie eouvictcd of any crinic or
niisdi'nu'anor. At tlic a^n of foiirti'i'U tho law luvsiiinos caiiaeily, without
proof of a knowli'dj^o of j^ood and evil, hut hot ween these a;j,i s tin.' evideueo
of that nialiee whieh is to supply af;o nuist ho stronj; and dear heyond all
(louht and oontradietion, as the priiiid favie i)resuini)tiou is thiit tho party
is iloli iiinipti.c. Aiit/ilo r. Tlir Pcojilf, i)0 111., »'()!).

riicdiiuiiiiiiirdtcd tliinitH. — In }\'iijyiiis v. The Piopk; Q'-i U. S., 405, it
was hold (tJlilVord, Justiee, dissenting) that iu a trial for honiieido, where it
is left in (louht whether tho defendant or tho di'ee;used coniuieneed tho en-
counter which resulted in death, it is conipotoiit to ]rt'ove, under certain cir-
ciunstauces, threats of violence made hj-tho deceased against the defendant
though not provioubly brought to dofondiuit's knowledge.

UrsTONE V. Thk People.

(109 III., 169.)

McuniCR: Insanity produced by into.ricdtion — Emdence — Instnictions —

E.vpiiin.

1. Insanity puoduced by intoxication, as a defense.— Temporary in-
sanity jiroduced immediately hy intoxication furnishes no excuse for
tho conunission of a homicitle or t)ther crime, but u fixeil insanity does.

390

AMERICAN CRIMINAL REPORTS.

A\nicthcr a party committing a crime is imdor tlio influence of a fixod
insanity, or a ti'mpoi-ary one induced immediately l)y intoxication, is
a ([uestion of fact for the jury, and their verdict will not 1k' disturhcd
unless it is clearly against the evidence.

2. While it is true there must be a joint imion of act and intention, or
criminal negligence, to constitute a criminal olfense, yet when without
intoxication the law will imiiute to the act a criminal intent, — as, in
the case of a wanton killing of another without provocation, voluntary
drunkenness is n>t nvailable to disjjrove such intent, so as to re<hice
the crime from nmrder lo manslaiighter,

y. Voluntary intoxication furnishes no excuse for crime committed under
its influence, even if the intoxication is so extreme ti-s to make the
author of the crime unconscious of what Lo is doing, or to create a
teniporiu'y insanity.

4. Samk — Eviui;xi'K of defendant's previous habits of intoxication.—

On the trial of a defendant for nmrder, when insanity is si't u|) in de-
fense, and he is shown to have been intoxicated at the tim(! of the
homicide, evidence of his ])revious intoxication will be pMperly re-
ceived from the prosecution, as bearing upon the (|Ui'stion of iiiln.xica-
tion at the time of the killing, and of the conduct of the defendant
while in that state.

5. SaMF-; — KlCSTRAlXlNO VIOI.ENt'E OK A I'HISONEU I'ESDINO MOTION lOrt

A NEW TRIAL. — After the trial and conviction of a prisoner, upon a
charge of murder, uptin the hearing of a motion for a new trial, wliicli
had been contiiuicd to a subseciuent t<'rm, the |iris<iner bi'oke out iiili>
manifestations of rage and vioU'iice towards theoflicers, and attemiitcil
to break awaj'. Thereupon handcuffs wei-e placed iipon his wrists to
restrain him. It was held there was no error in tiuis preserving ordii-
and protecting the sheriff and his bailiirs from violence, and that it
could not aHect the justness of the verdict at the jireceding term, nor
the sentenci' following the overruling of the motion for a new trial.

6. Instructions — Statixo abstract proposition of law.— The giving of

an instruction stating an abstract prin( iple of law not appli("il)Ie in a
criminal case is not error unless the principle stated is erroneous.

7. Same — CoNSTiiUED, as excixdino defense of insanitv.— On the trial

of (me for murder, insanity being relied on as an excuse, the court in-
structed the jury that if the killing had been shown by the evidence,
beyond a reasonable dimbt, to have been tlio act of the defendant, the
law presumes it nnu'der, ]irovitle(l they further believe, from the evi-
dence, that no circumstances existed excusing or justifying the a( t, or
mitigating it so as to make it manslaughter. Jlclil, that tlu* itistrin-
tion was not liable to the objection of excluding the defense or excuse*
of insanity, but, on the contrary, it recogjii/.ed tiie fact there might he
an excuse for the act.

8. jVnd in the same ca.se, an instniction contained a proviso that if the jmy

further believed, from the evidence, beyon<l a re.isonable doubt, tluil
the blows were struck with malice aforethought, eitlier express or im-
plied, to find the defendant guilty. Ifi'hl, that the instruction did not
exclude Iho defense of insanity, which, if it existed, would show an
absence of malice aforethought.

UPSTONE i: THE PEOPLE.

307

0. Evidence — In rebuttal — Time of admission.— Tlic time of receiv-
ing evidence is so much a matter of discretion with the court tiying a
case, that it will not be a ground for reversing a judgment that evi-
dence is allowed in rebuttal which in strictness is not iiroperly so
receivable.

1(1. Same — Opinions of persons not experts, as to sanity. — On the trial
of one for crime, the opinions of neighbors and acquaintances of the
defendant, who are not experts, may bo given as to Lis sanity or insan-
ity, founded on their actual observations.

Writ of Error to the Circuit Court of Winnehaffo Countv:
the Hon. William Brown, Judge, presiding.

M/: A. J. iropl'hiHy 3rr. ?r. J. Aldrieh and 2£r. John L.
Pratt, for the ])laintifr in error.

JAr. Jtfi)i<\i JfcCartnci/, attorney -general, Jfr. Charles A.
iro/'Z's', slate's attorney, Mr. Charles E. Fuller and Messrs.
Carnes <£' Denton, for the ]ieoplo.

Mr. Chief Justice SnF.i.nox delivered the opinion of the court.

The grand jury of \)q Kail) county found an indictment
against Walter Upstone for tlie niurdiU" of one Peter !^[elson.
A change of venue was taken bv the defendant to Winnebaoo
county, and a trial had in tlu^ circuit court of that county, at
its January term, 1SS3, resulting in a verdict of guilty, and
fixing the ])unishment at ini[)i'is()nnient in the penitentiary for
seventeen years. A motion for a ncnv trial was made and
overruhnl, ami sentence was piisscd upon the defendant in ac-
cordance with the verdict. It is insisted that the evidence was
insulHcient to sustain the verdict.

The iH'.micide occurred undtM* these circumstances: It took
place on Suiulay. February '», 1SS2, in the blacksmith shop of
the defendant, situated on the main street and at the most pub-
lic ])lace in the village of Fielding, in De Kalb county. About
2 o'clock in the afternoon of that day one of the witnesses.
George Clark, passing along the street on horseback, saw the
defendant standing in his blacksmith shop door swinging a
liammer and singing, and as the witness approached near, the
defendant said to him: " George, look here." The defendant
then went inside the shop, and witness saw him strike some-
body on the lloor twice with a scoop shovel, and afterwards
f.vico with a sledge-hammer. lie then told witness to go and

398

AMERICAN CRIMINAL REPORTS.

toll soiiip one tliere Avas a dead man there. The witness wont
and gave in formation of what he luid soon, and on his return
a crowd liad collected, and Peter ^lelson was found lyint"' on
the floor hadly bruised, and his skull fractured. The killing'
was undisputed. The theory of the defense^ was, that the de-
fendant was insane; that of the prosecution, that lie was intox-
icated.

It was in evidence that the defendant and the dcn'oasod were
intimate friends; that on the day before (Saturchiy) they wont
to ]Monro(\ iive miles distant, to a pi>;oon-sho!)t; that a!)f>ut 1
o"clt»ck on the Suiulay of the homicide, a witness saw the de-
fendant in his yard, and he called to the witness to come ov( r.
Avho did so, and went into dolondant's house; defendant mixed
nj) a drink for them l)oth to take, which was alcohol, as witness
thoug-ht; witness remarked that his was too warm; d(>fondaiit
rei)lied, i)orhaps it was not strong- enough for him, and put in
some more li(pioi'. and tlion it was too strong; witness could
not drink it all; defendant di'ank his. Dofondant said, " Dutch
Pete is in the slio]) taking a little naj)," and h<» would take wit-
ness' glass <mt and I(>t Jiini driidc it; he tool' it out, and witness
went with him to th(> shoj); Melson was there asleep, as tlie
witness judged, his head ami siiotddors ieaning against liio
sho]), and partially sitting on tla; vice-boncb ; defendant st>t the
glass on the bench and went up and talked t(> ^lelson, pubed
him a little, and Melson ])artially fell, and settled down on the
floor among a lot of rubbish, "so druidc he couhhi't stand."
"Witness did not hoar him say a woi'<l; saw no bi'uises on iiini
then; witness holp(>d him up and put him on the clean llooi.
and defendant doulik'd U[> his cloth apron and [)ut it mnhT
^Felson's head; witness then loft tliem; the glass was left sit-
ting there. Aljout tlii'ee-(piarters of an hour after, the alarm
was given that defendant ha<l murdered somolxtdy. Dob'ud-
ant had Ijoou soon on that day stamling in the doorway of his
shop driidving something out of a tmid>ler, and then sto|)|)iMg
back in the shop. An empty (juart bottle was found in tlio
stove, which had contained what the witness thought was alco-
hol. On Thm'sday or Friday befoiv, dofetnlant, together with
two othei's, had purchased a gallon of alcohol, one paying for
a half gallon, an<l defendant and the other for one-half, which
they divided between thenL

UPSTONE V. THE PEOPLE.

399

Thcro was in evidence a conversation had with defendant
some two or more years before, when he said tliat if he let
li(|nor alone ho was all rio-ht, and that wlien he (h-ank liquor it
made him '' crazy wild."' The concurrent testimrny of the
many witnesses ])resent on the occasion of the liomicide was,
tliat the defendant was intoxicated. The manifestations of con-
duct on tlie ])art of the defendant at the time Avero of a very
stran<«e. wild and irrational character. Very much evidence
was <>iven as to insanity in memhers of the family; that his
mother, a sister and three brotiiei'S were insane, the mother,
sister and one brother dying in insane hospitals; that an aunt
of the mothei' Avas insaiu*, and two of iier sisters died in insane
JKtspitals, ^luch testimony of neiohbors and acquaintances
was given. — on one side, that del'eiulant was insane, on the
otiicr side, that he was saiu?. The superintendent of the insane
asylum at Klgin, a medical man, gave it as his opinion, as an
expert, that fi'om the testinumy, taking it to bo true, defendant
was iiisane. This was before the rebutting testimony of the
l)i'(»seciilion.

The (piestion in the case Avas, whether there Avas but a tem-
porary insanity, produced immediately by intoxication, or fixed
insiinity. If it Avas tlie former, it fui'uishes no excuse. Ques-
tions of this kind are pecidiarly (piestions for a jury to deter-
iiiine, and upon settled jjrinciph^ tiiis court shfiuld not interfere
to disturb the verdict, tmless it is clearly contrary to the evi-
dence. AVe camu)t say tliat is so in this case.

Vari()n:; rulii\gs of the coiirt were excei)ted to, as. tiuit evi-
(l(MU'e was received in relnittal improperly; tliat opinions as to
(iel'endant's sanity were admitted, and evidence of defendant's
previous Iial>its of intoxication. The tini(> of receiving evidence
is much in a coiu't's discretion, and it would not be ground for
reversing a judgment that evidence was permitted to bo intro-
(hiced in rebuttal which in strictness was not properly so re-
ccivalth'. Hvidence Avas given, on both si(U.'s. of o[)inions of
(iefeiuhint's neigliliors and aciiuaintances as to his insanity,
fuiMKh'd np(»n them- own kno^vledge. E.xception is taken tosuch
testimony admitted on tlie part <)f the [teople. AVeare of opinion
that witnesses who are not ex[)erts iiuiy give their opinions,
founded upon observation, on the question of sanity. "Whar-
ton on Crini. Evidence, sec. -117; 2 Ired., 78, Chiry v. Clary;

ioo

AMERICAN CRIMINAL REPORTS.

"Wharton & Stille's Med. Jur., sec. 272; dissoiitinj^ opinion of
Doe, J., in State v. Pike, 49 N. II., 408, whore the authorities
are extensively collated; Ilarfly v. Merrill, 50 l!^. II., 2'>7; Iii»
V. Taylor, 45 ill., 485; Rutherford v. ^Ln-rh, 77 111., 3<.>7; Car-
penter V. Cah'ert, S3 id., 03. Evidence of previous intoxication
on the part of defendant was properly enouf>li admitted, iis
bearing upon tlie cpiestion of intoxication at the time of the
homicide, and of the conduct of defendant wlien in tliat stiite.

The second instruction given to tlie jury, for the people, Avas:

"That if the kilhng of the person mentioned in the indict-
ment has l)ecn satisfactoi-ily shown by the evidence, lieyond
all reasonable doubt, to have been tlie act of tlie defendant,
then the law presumes it to liave been murder, provided tlie
jury further believe, from the evidence, beyond a reasonalile
doubt, that no circumstances existed excusing or justifying the
act, or mitigating it so as to make it manslauglitcr."

It is objected to this, that it tells the jury they must convict
the defc^ndant of murder or manslaughtei\ "We do not so read
the instruction. It left the jury free to accpiit, if thei'e w(M'e
circumstances wliich excused or justified the act. It is fiu'tlier
said tlie instruction Ignores the (piestion of the insanity of the
defendant. Wo do not thiidc so. The instruction recogniz(>s
there might be an excuse for the act, and instructions for the
defendant abundantly informed the jury that insanity would
be a defense, which the jury would take to i)e an excuse. It
does not matter what may bo the technical meaning of excus-
able, but how the jury woidd understand it, and whatever was
a defv'Mse they would understand as matter of excuse.

It is objected to the third instruction, that it states an abstract
principle of law not ai)plicable to the case. This would not
bo error unless the priiu'i])le stated were erroneous.

It is objected to the fourth instruction, that it substantially
instructed the jury to lind the defendant guilty, regardless of
the qviestion of his mental condition at the time of the homi-
cide. The question of mental condition was covenul by the
proviso to the instruction, "provided you further beli(ne, from
the evidence, beyond a reasonable doubt, tliat the blows were
struck with malice aforethought, either expressed or implied."
If there was the insanity which was claimed, then there would
bo the absence of malice aforethought.

UPSTONE V. THE PEOPLE.

401

The followiii<^ further instructions were given on behalf of
the people:

'' 7. Altliough it is the law in this state that a criminal of-
fonse consists in a violation of a pul)lic law, in the commission of
wliich there must be a union or joint operation of act and in-
tention, or criminal negligence, yet wlierc, without intoxica-
tion, tlic law Avill impute to tlie act a criminal intent, as in tlie
case of wanton killing without pi'ovocation, voluntar}'^ drunken-
ness is not avaihible to disprove such intent.

" 8, That if you believe, from the evidence, beyond a rca-
soniible doubt, tliat the defendant, when voluntarih^ intoxi-
cated, committed the liomicide charged in the indictment,
under such circumstances as would have constituted such an
act, by one not intoxicatetl, murder, then you are instructed
that such intoxication would not reduce the crime of the de-
fendant from murder to manslaughter, nor would such intoxi-
cation 1)0 any excuse or defense to tlie act.

" 9. Tlie court further instructs you, that if you believe, from
the evidence, beyond a reasonal)le doubt, each of the following
])ropositions, to wit: that at about two hours before the com-
mission of the alleged homicide defendant was sane, and had
the power to abstain from drinking alcohol; that defendant
then knew that the drinking of alcohol by him would have the
effect to render him insane or crazy; that <lefendant, so know-
ing the (^(Tect of alcohol upon him, and being sane, and having
the power to abstain from taking alcohol, did then and there
voluntarily drink alcohol; that the alcohol so drank by the
defendant then and there made him insane or crazy; that while
insane or crazy from the effects of such alcohol defendant
committed the act charg<>d in the indictment, at the time and
place, and in the manner and form therein charged,- — then you
should find defendant guilty."

The same criticism is made with respect to these first two as
before — that they ignore the prisoner's defense. There clearly
is no foundation for saying this as to the eighth, and as to the
seventh that was only laying down the abstract principle of
law as to voluntary drunkenness being an excuse for crime;
and in doing that merely it was not necessary to incumber the
instruction with any exception of the defense that was made
Vol. IV -20

AMERICAN CRIMINAL REPORTS.

for the prisoner, 3Iitchell v. JfU/iolIatid, IOC III., 175; J^o;/;/ 1'.
Th'i People, 02 id., 598.

The le^al j)rinciple asserted in tlioso instructions is disputed.
The principle is sustained by tlie decisions of this court, and is
the svell settled doctrine of the common law. lioffertij v. Thr
People, •;!', 111., 121; JL-Inti/re v. The People, ;],S id., 511; The.
P,:,y . Voyr/v.', 18 X. Y., 9; United States v. 2[i:Ghce, 1
Curt' , HHiijanv. The People, SON. Y,, 551. In Bishoji

on Crim. Law. sec. -100, the author lays it down : " When a man
voluMtunlv bet. )rMos drunk, there is the wronpful intent, and
if, while lo.j fiu ^;une to have any further intent, he does a
wronui'ul act, the !Ut(Mit to drink coalesces with the act while
drunk, and for this combination of act and intention lie is
liable criminally. It is, therefore, ti le<2;al doctrine, a()plical)le
in ordinary eases, that voluntaiy intoxication furnishes no ex-
cuse for crinu^ conuuilted under its iniUience. It is so, even
Avhen tlu! intoxication is so extreme as to malce a person im-
conscious of what he is doii><>", or to create a tempoiary in-
sanity/' Our statute declares that "d' ankcnness shall not he
an excuse for any crime or misdemeanor."

We do not think the last above instruction is objectionable
in the res[)cct, as claimcHl, of its jiartial I'ecital of the evidence^
nor in the res))ect that there is no i)asis in the evidence for the
propositions stated. There was evidence of the defendant's
acts and conduct alH)ut an hour before the homicide, affording
ground of inference us to his mental state ivlK>ut two hours he-
fore. As to his power to al)stain from di-ink-in/j; alcohol, there
was evidence of his having once abstained for the ])eriod of
about a year, after sifi^ninf^ a pledij^e not to <lriidc; an<l as te
whether the alcohol drank by the defendant made him insane
or crazy, his conduct at the time, and what he had done shortly
before, were in evidence for the jury to judn^c from, as well as
kis own prior statement "that when he drank liquor it nuuhi
him era,zy wild."

We perceive no error in refusin<^ or modifying- instructions
asked l>y the defenilant. The jviry were instnicted, on the
part of the defendant, most fully and most favorably for him
upon the subject of insanity as a defense, in all aspects heav-
ing upon the case.

RITZMAN V. THE PEOPLE.

403

At tlic next term after the verdict the defendant was brought
into open court, when the motion for a new trial, made at the
])revious term, was disposed of, and as the court was about to
pass sentence tlie prisoner broke out into manifestations of vio-
lence, and had a struoole with tlu^ ollicers to break away from
them, and was attempting to comnnt acts of violence upon
them, whereupon tliey placed a pair of handcuffs on his Avrists,
and he ceased his struggles. At this treatment defendant's
counsel made objection, but the court overruled the objection,
and suffered what had been done, deeming it necessary to pro-
tect the sheriff and his bailiffs from the violence of defendant,
and for the preservation of order in court. This is alleged as
error. What was done could have had no influence in the
finding of the verdict the term before, nor upon the sentence,
it following as a consequence upon the verdict and the over-
ruling of the motion for a new trial. It did not affect the just-
ness of the verdict or the sentence, and we fail to see why it
should be any ground f(n" the reversal of the judgment.

Finding no material error in the record, the judgment must

be affirmed.

Judfjment affirmed.

KrrzMAX v. Tnt: People.

(110 111., 363.)

Murder : Joint trespassers — Evidence — Instructions.

Encouragino commission of unlawful act. resulting in iiomicidk —
LiAKiLiTV FOR coNSKijUENCES. — Sevoral iKTSons of a party pas.sing along
a highway got out of tlio wagon in which thoj' were traveling .and went
into an orcliard without i)ernussioii. The owner ordered them to leave,
whii'li they r(>fused to ilo, when others from the wagon entered the
orchard, armed with clods of dirt, and assaulted the owner, using very
ofTensive languiige to him, and one of the i arty struck the owner, with
a clod, upon the hack part of the neck, felling him to the ground, from
which hlinv death ensued in a few minute's. It apjieared that one of the
intruders, who wa.s tried sepaiately, took a piut in the affray, and tried
to kick the decciiseil while lying prostrate from the blow. It was held
that it was not necessary to show that he threw the missile which caused
the death, in order to sustain his conviction for manslaughter. It was
Kufik'ient that ho was i)resent, encouraging the perpetration of the
offense, to nialvo liim equally guilty with the pai'ty who struck the fatal
blow.

401

AMERICAN CRIMINAL REPORTS.

2. Exclamation op one of several persons xriio ilvd committkd an

UNLAWFUL ACT. — Spvorul jjcrHons, incJuding one who was put upon trial
for murder, while traveling along the road entered an orehard by the
road side, when, without justification, in a ditHoulty with the owner,
who ha<l ordered them to j^n ohl oi I.N orchard, some one of the parly,
by a blow with a clod, killed the owner, and they all then got into the
wagon and started toward th(>ir homes. A party in pursuit of tlu'in.
seeking to Imve them arrested, passed the wagon, when some one of
them called out, " Hello, good-looking fellow! " or soinething like tiiat,
but such witness so addressed could not say the defendant was in tlm
wagon at that tiuie. It aj)peared, however, from the defendant's own
testimony, that he did not get out of the wagon until after llu y
reached the next iH)int where they stopped. Held, that the court jnop-
erly refused to strike out of the testimony the words so spoken to the
witness.

3. CRO.SS-EXAMINATION — LATITUDE ALLOWED.— Gre.at latitude shoul<l always

be allowed in cross-examination, especially in a capital case, ami tlie
court sliiaild never interjiose except where there is a manifest abuse of
the right.

•I. Same. — Where a witness, on a second examination as to a ])arti(ular
transaction, states an im|)ortant fact omitted in his previous account of
the matter, his attention, on cross-examination, may i)roj)erly !)(> called
to the fact, and he. \>e reiiuired to explain why the omission was made
in Ills lirst statement.

i). Conflicting statements.— .So, on the trial of one for murder, the deatii
having been caused by a blow with a clod from the hand of snme une
of .several trespassers, a witness who was i)rt>sent at the time of the
killing, stated, on his examination in chief, that the defendant then
being tried, (hiring the transaction cidled the deceased "a son of a
bitch." On cross-examination the witness was asked if in liis former
examination he had made any such statement as that. On objection,
the court below held that the in(iuiry should bo limited to the (pn'stinns
actually a.sked and the answers given in the former examination, and
that the <piestion wa.s improjjcr. Held, that the rule laid down by the
court was rather stringent. The incpiiry might well \>c made, with the
view to a.scertain the motive of the witness in omitting the slat(!ment
on his examination in chief, in ca.se it should turn out he liad done so.

«. Error will not always reverse — Exclusion of evidence. — Although
the court, on the trial of a cause, may err in the exclusion of evidence.
or in refusing to allow certain questions to Ik) jnit on cros.s-cxamination,
yet if this court is fully satisfied, under the facts of tiie ca.se, that the
error could not have affe(;ted the result, the error will afTonl no gronml
of reversal.

7. Instructions — Whether sufficient as a whole.- It Iwing imjn-aeti-
cable to require absolute, literal accuracy in instructions, it is therefore
sufficient if the instructions, considered as a whole, substantially i)re-
sent the law of the case fairly to the jury.

Writ of Error to the Criminal Court of Cook Ci>unty ; the
Hon. T. A. Moran, Judge, presiding.

RITZMAN V. THE PEOPLE.

405

Messrs. Moore <£• Purnell, for the plaintiff in error.
Mr. Luther Laflbi Mills and Mr. Charles B. Morrison, for
the people.

Mr. Justice !Mulkky delivered the opinion of the court.

The [)lainti(r in error, Xicliohis Ititznian, and William Spies,
were indicted in tlie criminal court of Cook county, at its Sep-
t(Muber term, 1SS3, for the murder of Chai'les Lovett. At the
following- Deceml)er term Ritzman was tried separately, before
the court and a jury, upon said cliarge. The trial resulted in
his conviction for manslaughter, tlie jury iixing the term of
confinement in the peuiteiitiary at eight years. The usual
motions for a new trial and in arrest of judgment having been
made, considered and overruled, tlie court thereupon entered
final judgment in pursuance of the verdict, to reverse which
Uitzman has brought this writ of error.

Till! errors assigned (piestion the rulings of the court upon
(lucstions of evidence, and upon the giving and refusing of
instructions. Jt is also claimed the evidence is insulUcient to
sustain the conviction, and a reversal is asked on these several
grounds.

The circumstances under which the homicide occurred are as
follows: About 5 o'ch)ck in the afternoon of August 5, 1888,
the accused, together with ten other young men, was retmm-
ing to Chicago by way of Grand avenue, from a picnic which
they had attended that day on the Desplaines river, and wlien
within some ten or eleven miles of their destination they came
opposite the premises of the deceased, on the north side of the
avenue. Here some of the ])arty left the express wagon in
which they were travelling, and entered an uninclosed apple
(trchard, being a part of said premises. The dwelling of the
deceased was about twenty feet north of the road, and on the
west side of the orchard, .lust at this time the deceased was
passing from his house through the orchard, in an easterly
direction, when ho encountered those of the party who had
entered the orchard. Upon discovering them he ordered them
off the i)remises, which attracted the attention of those Avho
remained outside, whereupon others of the party, arming them-
selves with hard clods of earth, also entered the orchard, going
in tiic direction of the deceased. Mrs. Lovett, and a young

406

AMERICAN CRIMINAL REPORTS.

man by the naiuo of narry, wlio was boarding with tlic deceased
at the timo, being informed of the dilficulty by the children of
the deceased, left the house and proceeded in haste to wliei'c
the parties Averc, Barry being somewliat in advance. 1I(>
swears, in substance, that, when he got there, he saw a clod,
or what he sui)p()sed to bo a clod, bound off Lovett's shoul-
der; that he then ran to Lovett as fast as ho could, and, as ho
came up to him, Lovett foil; that Spies being nearest to the
deceased, witness "made for him," when the former stepped
back and struck at witness; that, at this juncture of all'airs,
witness discovered llitzmaii, the accused, standing near or over
deceased, and in the act of kicking him, when witness jinnpcd
over and shoved IJitzman back; that Lovett died in about live
minutes after he fell; that witness saw as many as throe of the
party in the orchard, and th(!i'e might have been more; that
they used profane and foul languiige both to the deceased and
witness; that witness ne.xt morning picked up a clod of diil
close to where Lovett lay the evcMiing before; that the iKiily,
haviiig ])roi;eeded on their way, were pursued and ovei'tulaui,
and all arrested that evening except the accused and one otiiei',
who succe;>ded, for the time being, in eluding arrest.

The testimony of ]\rrs. Lovett is substantially the same as
Barry's, so far as the transaction in the orchard is concerned.
She j)ositively identilies the (h^fendant as being in the orchar.l
at the tiuK! her husband was killed, and actively partici]);itiii^'
in what was done. She says; " D(!fendant was trying to kick
my husban<l after ho fell. Barry was standing near my has
band, and he pushed this young num (referring to tlio acciiscili
back when he tri(><l to Icick my husband while ho lay on the
ground, dead ; 1 saw other ])(M'sons there, but his face is tW.
only one I looked at that I recognize. . . . AVhile defend
ant stood over my husband \w called him a God damned soil
of a bitch, and tried to kick him at the same time. I /()')/,■> i/
him in the face and said, 'you Inive killed him.' He looked at
me. T hiMird some one say. ' you have killed a man,' and he
started and ran." Mis. Lovett also identilies two clods of dirt
as having l)een picked up n(!ar where her husband lay, wliidi
were produced in court on the trial, and with which the med-
ical testimony shows the wounds causing Lovett's death might
have been produced. She also locates the wound from which

RITZMAN V. THE PEOPLE

407

lio (lied on tlic right side of the neck, back of his ear, and
Doctor- 1 JhithiU'dt swears that Lovett died from tlie wounds
described by her.

Cleaver, one of the party, admits he was in the orchard,
and says lh(^ accused was tl)ere also, and near the deceased
when ho fell, though lu; did not see the deceased receive any
blow. He fui'tlici' savs, when thev returned to the wii<'on and
got into it, Spies remarked: "]My first one didn't count, l)ut
my second one did." To which Kitzniiin replied: "Afy second
one counted; my fii-st one didn't hit, juid my second one
counted." To which Spies rejoined : " AVill you stick to that? "
and Ritzman said he would. The witness, on cross-examina-
tion, states tliat lie understood from this conversation tliat
Spies and Ritzman iiad thrown something at Lovett.

The case tlius made by the people is met almost exclusively
by the sim])]e denial of the accused, who testitied on his own
l)chalf. The defendant himself admits he was j)resent when
Lovett was killed; tliat his (h:'ath occurred at the time and
place fixed by the other witnesses, and also that it was caused
by a blow gi\eu by one of the ]>arty to which he belonged,
without any excuse or justification whatever. lie further
admits that he, in com[)any with Cleaver, without any author-
ity, entered the orchard of the deceased for the purpose of
getting ap[)les, and that they were ordered out by Lovett. So
far there is no mat(>rial controversy. Tlie accused, however,
claims that, when he and Cleaver were ordered out of the
orchard. Spies jumped out of the wagon, picked up two lumps
of dirt and tlirew them at the deceased, the first one missing
liim and the second taking effect and causing his death, as
stated by the otiier witnesses. While he denies the language
attributed to him by (cleaver in the conversation which oc-
curred after the ])artics had returned to the wagon, with re-
spect to tin-owing at tlie deceased, yet he admits there was such
a conversation, iMit claims tliat it was between Spies and
Cleaver, and not between Spies and himself. lie also corrobo-
I'ates the stalement of J>arry to the effect that Spies assaulted
IJarry while in the orchard. Thus it will be seen the case
made by the people, in several essential features, is greatly
strcngtheneil by the testimony of the defendant himself.
There is other evidence we have not commented upon, or even

408

AMERICAN CRIMINAL REPORTS.

SO much as adverted to, for the reason wo do not consider it of
sutliciont inipoi'tance to demand special notice. Takin;^' it as u
whole, wo think the evidence not referred to rather stren<^th('ns
the case made by that part of the testimony specially luiticcd.

Fnnn the for<'<jfoin^- outline it satisfactorily ai)i>(uir.s that on
the ."tth of Au;.>'ust, issii, while the deceased was at home,
(piietly and peuceahly attendin*^- to his own atl'aiiN, his ])remis('s
were unlawfully invaded by a party of ti'espassiu's, the arcuseij
l)ein<i' oiU! of the lunnher; that when ordered olf th(» premises,
instead of l(>a\ iu;^'. as they slK)uld havt> done, they set upon him,
and wantonly slew him in the ])i'esi»nce of his own family,
without a shadow of justification <»!• excuse, — -and yet w(^ are
tohl the;"e can he no convicticm in this ease, because the evi-
dence does n(»t show, ht'youd a i-easonahlcMlouht, the very hand
that hurKul the fatal missile which sent him intoetei-uity with-
out a moment's warning'. So far as thes accused is concerned,
under the [troofs in this case, we think it wholly immatei'ial
whetlKM" the missile in (piestion was thrown by th(i hand of the
accused or of some one of his co-trespassers. That the de-
fendant was present, — and, t(» say the least of it, encom'a<^in;4'
the pei'pelration of the olfense, — caniu)t be denied, mdess we
are pi'e[)ared to set aside the testimony of .Mrs. Lovett ant!
liai'ry, two wholly disinterested witnesses, and accept the un-
supported statements of the aconsed, which, of course, we can-
not do. Ami if the defendant was so present (iucoura^in^^the
i)en)etrat!on of the offense, it is hardiv necessarv to sav that,
by the express provisions of our statute, lu; is made a princi[)al,
and etiually guilty with the one who personally <^ave the fatal
blow. l>oth these witnesses, as we have; already seen, swear
positively he was not oidy [U'esent, usine- abusive, profaiu) and
obscene language, but, even after the <l(;ceased was knocked
down, and while in a. <lyin<^' condition, IJarry had to interpose
to prevent the defendant from kicking- his ])i'ostrate form,
and yet we are, in effix-t, asked to say he was not present aid-
ing or encouraging the offense. This wo cannot do.

It appeal's that Earry, as already stated, in\modiately after
the homicide, went in pursuit of the party, passing them on
the Avay, s»)me lil'teen minutes afterwards, b(,'tween Lovett's
and Whisky I'oint, whei-e the arrest was made. Witness says
all of the party that he saw were in the wagon when ho passed

RITZMAN V. THE PEOPLE.

40J»

them, but ho could not say tliat ho noticctl the defendant, oi'
wliother he was in the wa^on or not; that in passing, ono of
the ]»ai'tv lialloocd out, " IleUo. good-lookin<^' fellow!" or
souK'tlnng like that. The court was asked to strike this out of
the testimony and exclude it from the jur}^, on the ground it
did not allirmatively appear the accused was present, which the
court refused to do, and this is assigned for error. There is no
ci'i'or in the ruling of the court on this question. The evidence
clearly shows that the accused got into the wagon at Lovett's,
and he swears himself that he was with the party, and got out
of the wagon at Whisky Point, so that ho must have been
j)resent when the language complained of Avas used. There is
nothing in the ol)jection. Indeed, it seems frivolous.

The next objection relates to the exclusion of evidence.
I'iirry having stated, on his examination in chief, that liitzman,
(luiing the altercation in the orchard, called Lovett a ''son of
a bitch," was asked, for the pur[K)ses of im[)oachment, if, in
his former examinations, he had made any such a statement
as that. On objection by the people, the court ruled, in etfcct,
that the in(juiry should be limited to the cpiestions actually
asked and the answei's given in the former examinations, and
that the questi(m, therefore, in the form put, was improper.
We are of opinion the rule, as laid down by the court, is
rather stringent. Great latitude should always be allowed in
cross-examination, especially in a capital case, and the court
should never int(>rpose, except Avhoi-e there is a manifest abuse
of the right. The right of cross-examination is justly esteemed
one of the most etlicient means of eliciting the truth, and
of exposing fabrication and falsehood. AVe think, where a
witness, on a second examination, as to a particular trans-
action, states an important fact omitted in his previous account
of the mattei', his attention, on cross-examination, may pr^>p-
(irly be called to the fact, and ho bo required to explain why
the omission was nuulo in his first statement. If, in such case,
the fact in (piestion was forgotten, or omitted through inad-
vertence, and the attention of the witness was not directed to
it, as it often happens, the witness, of course, would so state,
and that woidd end the matter. But if the discrepancy was
intentiojuil, the cross-examination, as a general rule, would de-
velop the fact, and in such case it would, and properly should.

410

AltfERICAN CRIMINAL REPORTS.

affect the witness' credit before tlie jury. While we tliink, us
Jih'cady indicated, the riilin<i; of the court ou tiiis subject was
not sullieiently liberal, yet we are fully satislied, under the
facts in this case, the error in question could not have ad'ectod
the result, and it therefore affords no ground foi' I'evei'sal.

One or two other objections of a similar character are made
by plaintiff in error, which, for the reason just stated, must be
dis[)osed of in the same way.

Numerous exceptions have been taken, and elaboriilcb,-

argued, to the instructicms of the court, most of which we re

gard as highly technical, and affording no reason for a I'evci'siil

or even just criticism. It has often been said, and we re|)('iit here.

that to roiiuire absolute, litei-al, technical accuracy in insti'iic

tioi!s, would, as a general rule, defeat the cuds of justice;, iiiid

biing the administiation of the crimial law into dis.'('|)ul(' mid

just conti'mpt. It is sullicicnt when the instructions, considci'cd

as a whole, subitanliiilly ])resent liie law of tlu; case faii'ly lo

the jury. That, we thiidc, has beini done in this cas(\ The

criminal laws of this state must be enforced. And if it is not

already undcvstood, it is high time it should be, that where a

case is clearly madc^ out against the accused, and tliii jury iiavc

so found, this court will not reverse for a niei-e tecIiMical (M'ror,

which it can s(>e could not have affected the result.

The judgment will be alllrmed.

Jadijment ajjinncd.

Statk v. BiJ//i:r,r..

(69 N. II., 05.)

MURDEU : Principal avd acccsfiori/ — I'hndmcc — Iiistriiclinns — A iiUrfois
acquit — Merger — lyesence of drfemimtt — Verdict.

1. MuRnru — rKixcn'AL and AfiM-.ssouv — Kvidknci;.— U|»()n <li(< triiil dl' K.

as !U'<MVS(>ry before tlio fact to tlie iiuirder of II., cvidciu'c wii.s rcccivctl
as part of C.'s tt stiiiiony toiuliiij^ lo juovo tlio iillcKation of (lie iiidkl-
iiicnt tliiil (!. nmrdcrctl IT., and for no other inirpose; lnhl. llml as it-
(;oini'(>teiu'y for tliat jnirpose, and iln incoiniu'leiicy for any nllnr imr-
posc, wore dintinotly (leclared hy tlie <'ourt wlien it was received, flien
was no error.

2. Same — Instructions. — A jud^nK'nt will not bo reverHcd bei anse of (lie

refusal of tho court to repent a ruling once dl»{inclly made during the
progress of the trial.

STATE V. BUZZELL.

411

.■5. Same— Autrefois acquit— Merger.— If the defendant was in fact
both a principal and an accessory, and if, in law, on the plea of former
conviction, ho could not be convicted of either crime after ho had been
convicted of the other, he could, on the i)lea of not guilty, bo convicted
of either whore he had been previously convicted of neither.

•I. Presence of DEi'ExnAXT ix a caimtal case. — When the defendant de-
clineil an invitation to tie jn-esent at a view taken by the Jury in a capital
ca.se the judfjjment should not be reverseil on that grouiul.

■). Verdict not KiNoixd the DE.iui'.E ok the oeeense.— Uiidi-r a statute
which makes the bill of exceptions part of the record, and it appeal's
that the <'har;;e was nmrder in the first degree; that tlie evidence was
of that degnv! and no other; and that no (piestion was raised as to the
degree, a gi neral verdict of murder will be suliicieutly certain as to the
degree.

Copclant? iuul E<1(jc)'hj, attorneys for the dcfendaut.
The Attorn: if-ilencnd., for the stato.

niNouAM, J. I. The cvidoiico tondini:;' to show that the de-
i'ciHliUit was |»ic.sont at the inurdor, aiding' and iibettiiiii," C, was
ollVred and received, not for the j)ni'})ose of showing tliat the
•lerendiint was present as a |)i'incii)al, nor for the pin-pose of
inlerrino' from liis pr(\scni:0 that he liad been an accessory, but
as a pitrt of C^."s testimony, tendin;^- to [)rove the allegation of
the indictment that ('. mui'<hM'c(l II. It was as necessary for tlie
state to prove that (-. committed the miu'der as to prove that
the delemhint liad previously incited liini to commit it; and
there was no error of law hi the acbnissionof the whole of the
narrative of the transiietion given by C. It was for the jury to
say what part of his testimony, if any, was true, and what part,
if any, was false. AV^hile they might well believe that C. com-
mitted the murder, and that the defendant had ])reviously liired
him to commit it, they luight well doubt, upon all the evidence,
whether the defendant was ])resent when C. lired the gun. The
evidence to wliich the defendant objected was competent for the
special purpose for whidi it was oll'ered. Its competency for
that purpose, and its incompetency for any other ])urpose, were
distinctly declared by the coiu't when it was received. IVo other
use was made of it than as it boi'e upon the (piesiion of C.'s
guilt. The law being once declared by the court, the defend-
ant had no more right to reipiire it to be repeated once than
to recpiire it to be rei»eate<l twice, or ten tinu's. AV^hether the
statement of law, once distinctly made and acted upon by

412

AMERICAN CRIMINAL REPORTS.

■I

counsel throughout the trial, should have been repeated, and
how many times, is not a question of law. If tlie statement
was correct, it might be repeated ; but the judgment cannot bo
reversed because it was not repeated, — es[)ecially when no
other use was made of the evidence than the legal one an-
nounced bv the state's counsel and by the court. The refiisiil
to repeat the law once hiid down was not error in law.

Whether evidence that the defendant was jiresent, aidiM«i'
and abetting C. in the murder, might tend to i)rove that al
a j)revious time and in another place he instigated C. to com-
mit the crime, is a question there is now no occasion to con-
sider. It might be improbable that the instigation began at
the time and place of the murder, and that they met there
accidentally, or on other business.

II. The del'e!i(lant pleaded the general issue, and not his
former acquittal of being a principal, because the latter ])lea
would have been bad on demurrer. Sftife v. Buz:idl, 58 N. II..
ii.")?. On the iornier indictment, charging him as |)riucipal. he
could not be convicted or ac(piitted as accessory. On this indict-
ment, charging him as accessory, he could not bo convicted of
ac(piitted as princi|)al. He now contends, not that his ac(piil-
tal is a defense, but tiiat if he was guilty of the crime of wliicii
he was ac(|uitted, he could not be guilty of the ci'ime of which
he was convicted. It is not apparent how he could be entitled
to the instruction recjuested on this ])oint, when his oitjectioii
to tiie evidence of his being a princi[)al had been acci>|»te(l l»y
the state, sustained by the court, and acted upon by iMith
parties, and the whole trial had proceeded, as he desired and
])roposed it should, on the ground that tlieciuestion of hisbciii;/
a ])rinci[ial was excluded from the considei'ation of the jurv.
Under the resti'ictions asked by him, adopted by tln^ state, and
conlinned by tiie court, there was in the case no evidence to
which such instruction couhl be applied.

If one who is a principal cannot bo convicted as accessory
l)efore the fact in tiie same felony, the reason must be that tiic
crime of being accessory merges in the crime of being princi-
pal, and the t-wo crinuis become one, as C's crime of assaidt
with intent to kill merged in his crime of murder, for the pur-
pose of ])reventing the j)unishment of both. Had the defend-
ant been convicted as a principal on the former indictinent.

STATE V. BUZZELL,

the judgment would have been conchisive evidence for the
state, and against him, in any other case between the same
parties, that he waa a principal. Com. r. M^PUcc, 3 Cush.,
181; Com. v. Austin, 97 Mass., 51)5, 507; Com. v. J'Amnn, 101
Mass., 25; State v. Lang, G3 Me., 215, 220; Reg. v. BlaJcemore,
•1 Den. Cr. C, 410; Queen v. Ilanghton, 1 El. & Bl,, 501. If,
on tliis indictment, the judgment of accpiittal on the former
indictment is conclusive evidence for him, and against the
state, that ho was not a principal, and if it is evidence for the
state as well as for him,— if the estoppel is mutual, — the fact
is incontrovertibly established, in this case, that he was not a
principal; and it is a point adjudicated between these parties
tiiat there was no crime of his in which liis crime of being
iiccossorv could merge ; that merger was impossil »le because he
was not a ])i'incipal. Tlie question could have been raised by
a ploa of his guilt as a principal, a replication of his acquittal,
and a denuirrer to the replication. As such a plea Avould be
had, it is not necessary to consider whether such a rc[)lication
would ])(> good. On tliis indictment f<n" being accessory, the
(lof(Midant would neither ])lead nor prove that he was not guilty
of tlui crime charged, by pleading and proving tliat he was
guilty of the other o'ime of Ijeing a principal.

If the acquittal dot's not render a merger impossible, and if
the crimes of principal and ac(;cssory so merge that a convic-
tion of either is a bai* to an indictment for the other (a point on
which we expi'ess no opinion), such a merger is no defense in
this case. One may be convicted of cither of two felonies
which liave so mergcnl that if tlie proper j)1ea Avere interposed
iio could not be convicted of both. If the defendant was, in
fact, both a ]irincipal and an accessory, and if, in law, on the
plea of former conviction, he could not be convicted of either
crime after ho had been convicted of the other, he could, on
the plea of not guilty, l>o convicted of either when lie had
heen previously convicted of neither. State v. Archer, 54 N. II.,
4(1.-), 408; Stffte v. Sni/Jer, 50 K II., 150, 155, 159; State v.
Emerson, 53 X. II., «U9; State v. Zeai'/'tt, 32 Mc, 183; State v.
Smith, 43 Yt., 324; Com. v. Squire, 1 Met., 258, 204,205; Com.
V. J/'/V/v>, 3 Cush., ISl, 185; Com. v. BurJce,U Gray, 100;
Com. V. Baheman, 105 Mass., 53, 01 ; Com. v. Bean, 109 Mass.,
'iVd, 351, 352; State v. She^urd, 7 Couu., 54; State v. Parmelee,

414:

AMERICAN CRIMINAL REPORTS.

9 Conn,, 259 ; People v. Smith, 57 Barb., 40 ; Bamett v. People,
nt lU., 3-^5, 3.30, ,331; Peg. v. JSTeale, 1 C. & K., .501; 8. 6'., 1
Den. Cr. C, 30; Peg. v. Button, 11 A. & E. (N. S.), 929, 047,
948; I>ank rrosecutions, liuss. it Ry., 378; 3 Inst., 130; 2
Hawk. r. C, ch. 29, sec. 1; 1 Iluss. CiC, 31; 1 Eisli. Cr. L., sec.
COS; Lewis, Cr. L., .')99; Bick. Cr. Pr., 15.

If he wei'o accused of connnitting the crimes of arson and
murder by tlie single act of ilring' a liouse, tliore would be a ques-
tion on a ])lca of former conviction wlictlier lie could be tried
for either crime after he had been convicted of the other. A'/r/^
■y. Cooper, 1 (Jreen (N". J.), 301. If he were acquitted of either
on the ground that iu! did not set the fire and was not present
■when it was set, and then, being indicted for the other, pleaded
the judijmeut of acquittal, and proved his necessary averment
of the identity of the alleged act (1 Cr. Ev., sec. 532; 3 Gr. Ev..
sec. 30; Morgan c. Burr, 58 X. 11., 470), there would be a ques-
tion whetlun' he could be twice put in jeopardy for the single
alleged act. lie would contend that for all the purposes of the
criminal law between the same parties such a judgment was con-
clusive, and that the fact of his not being a principal in (iring
the house was established by such a judgment acquitting him of
either crime, and was an indisputable fact ow an indictment for
the other. If he was not such a principal in one case, he could
not be in the other. But if he were accpiitted of the murder on
the ground that the person alleged to have been murdered was
not killed by the lire, or was wrongly named in the indictment
{State V. MkUnj, 14 N. II.. 304, 300; ^ Com. v. Cliesleg, 107 Mass.,
223; 1 Bennett ct IF. Cr. Cas., 2d cd., 53.5), the acciuittal would
not sustain his plea of not guilty to a subsequent indictment
for the arson. If, not having been convicted of the murder,
he were indicted for the arson, and pleaded that the act
ciiarged was murder as well as arson, his ph^a would be had
on dcMuurrei', and if, not having been convicted of tiie ai-son,
he were indicted for the murder, and pleaded that tlie act
charged was ars;)n as well as murder, his plea woidd be bad on
demurrer. I'here would be no such merger as v.'ould prevcMit
his l)eing convicted of either of the crinu's committed by the
single act. At the ti-ial of this case, on the plea of not guilty
of an act of an accessory committed at one time and place,
proof of another act, committed by the defendant as a princi-

WILLIAMS V. THE STATE.

415

pal, at a subsequent time and at a different place, AVould not
maintain his plea.

III. "VVlictliGv a verdict of guilty of murder, not in terms
tinding the degree, is insudicient when the record shows the
degree found by the jury, is a question not raised in this case.
Section 2 of ch. 204 of the (Sreneral Statutes is applicable only
to a case in which the defendant is found guilty of murder.
But if the record did not show that the jury found C. guilty of
murder in the first degree, it might be argued that the judg-
ment against the accessory could not bo capital. It appears by
the bill of exceptions, which is a part of the record (Gen, St.,
ch. 189, sec. !)), that the cliarge was that C.'s crime was murder
[n the first degree; tliat the evidence was of that degree and
no other; and that no (pu>stion was raised as to the degree. It
appears, therefore, with certainty, by the record, that the ver-
dict of the defendant's guilt included the finding of C.'s guilt
of the first degree.

IV. The defendant's non-accejjtancc of the invitation to ac-
company the juiy a portion of the time on the view is no

ground for reversing the judgment.

Excejytions overruled.

Foster, Stanley and Clark, JJ., did not sit; the others con-
curred.

Wrr.MAMs V. The State.

(60 Md., 403.)
Murder : Polling jury — Void verdict.

Whore the jury is polU^il in a murder ease, it is the duty of each juror to
say for liiiiiself whether he finds the prisoner guilty of iimrdcr in the
first or second der/rce.

Each juror must desionatf, DEauKE.-— Where the respcmse of each juror
in such ease is simply "guilty," without a de)ii;;iiation of the degree of
guilt, such verdict is a luiUity. And the fact that the clerk, immediately
after polling the jmy, called upon them to hearken to the verdict as the
court had recorded it — " your foreman saith that J. W., the prisoner at
the bar, is guilty of murder in the first degree, and so say you all" —
(lous not ailtict the question.

416

AMERICAN CRIMINAL REPORTS.

Appeal as upon Writ of Error from the Circuit Court for
Howard County. •

Wm. A. Hammond and Henry E. Wootton, for the plaintill'
in error.

Charles J. 21. Gwinn, attorney-general, for tlie defendant in
error. *

RoniNsox, J., delivered the opinion of the court.

The i)la'mt[f in error was tried in the circuit court foi-
Howard county on an indictiiuMit for murder; and the jury,
when tliey came to the bar to (h^liver their verdict, declared l)y
their foreman that he was guilty of murder in f/tejird degree.
IJefore the verdict was recorded, the plaintiff in error de-
manded a poll of the jury; and each juror, when called upon
to answer for himself and in his own language, responded
"• guilty,'' without specifying the degree of murder. Xow.
murder in the iirst degree is ))unishable by death, and murder
in the second degree by continement in the penitentiary. The
code, therefore, provides that on an indictment for murder the
jury shall, if they lind the ])ei'son " guilty," ascertain in their
verdict ivhether It he murder In the first or second degree. \
general verdict of " guilty " on an indictment for mui'der is ii
f/ad verdict, i\nd on such a verdict no judgment can be pro-
nounced. Ford V. Thi' State, \2 Md., 511.

The prisoner wns entitled, as a matter of right, to a poll ol'
the jury, and he could not be convicted exc(>])t upon the con-
currence of each juror. Upon the poll, it was the duty of
each juror to say for himself wh(!th(ir he found the prisonei'
guilty of murder in the first or second degree. AVe all know
that jurors sometimes, upon the poll, dissent from the verdict
declared for them by their foreman, and it is for the jjui-posc
of compelling each juror to declare his own verdict, in his own
language, that a j)oll of the panel is allowed. Upon the \M)\\
in this case, there was not a single juror, who, in finding the
prisoner guilty, ascertained the degree of murder as requirful
by the code. On the contrary, the verdict was "guilty," and
such a verdict is, as we have said, on an indictment for murder.
a nullity.

The fact that the clerk, immediately after polling the jury,
called upon them to hearken to the verdict, as the court had

HOPT r. UTAH.

417

recorded it — "Your foreman saith that Jason Williams, the
prisoner jvt the bar, is guilty of murder in the first degree, and
so say you all," — does not affect the question. It was to this
verdict as delivered by the foreman, and to which the assent of
each juror was to l)e inferred from his silence, that the plaintiiT
had objected, and to test which ho had demanded the panel
should be polled. And when polled not a single juror declared
the prisoner guilty of murder in the first degree.

AVe do not see how this case differs in principle from ForcTn
Case, 12 ]\rd., .'iU. TTjnm the poll in that case, the foreman
answered, ''(Juilty of murder in the first degree," and each of
the remaining jurors responded "guilty," without specifying
the degree of murder. And the court held tliis to be a bad
verdict, and bad, too, because each juror did not, in answer to
the poll, specify the degree of murder.

In this case, as in that, the verdict rendered on the poll is a
defective verdict, and we must I'overse the judgment and award
a new trial.

Judgment reversed, and new trial awarded.

IIoPT v. Utah.

(110 U. S., .574.)

MuuDEU: Triers — Evidence — Covfei^sion — Witnesses — Statute in refer-

ciiee to.

1. MniDKR — DEfiREE OF, TO BE roiND BY THE .itTiY. — Under a statute

which (U'lines the crime of umnhr and lixes the degrees tliereof, it is
error for the <"ourt to say, in its cliarf^e to the jury, that the offense, by
wlionis(R'ver eonunitted, was that of murder in the first depree.

2. Trieiis — Presence of AtcrsED before. — Under a statute wliieh pro-

vides that, '• if the indictment is for felony, the defendant must l)e per-
sonally ])n'sent at the trial," the presence of the defendant cannot be
disjR'nsed with before triers appointed l)y tlie court for the triid of the
snfflci(Miry of a cause of challenge to a juror.

3. Evidence, hearsay. — On the (luestion as to the identification of the

body of the j)erH«)n alleged to lune been nnirdered, it is not competent
to show by the .surgeon who made the 2v>st-inortem examination of tlic
body of a corpse claimed by the ]>rosecu(ion to be that of the murdered
person, that the body was identified to liim by another.
Vol. IV -27

AMERICAN CRIMINAL REPORTS.

Confession of acccsed, when admissible against him. — The .idmis-
sibility of a confession of Ruilt is addressed, in the first instance, to the
discretion of the court. It must be subjected to careful scnitinj% and
received with great caution. "When freely and voluntarily made, it is
evidence of the most satisfactory character, but the presumption upon
which weight is given to such evidence, namely, that one who is imio-
cent will not imperil his safety or j rejudice his interests by an untrue
statement, ceases when the confession appears to have been made either
in consequence of inducements held cut by one in authority (ouchin;!;
the charge preferred, or because of a threat or promise by or in the
presence of such person, with reference thereto.

■Witnesses — Statute wnir ii removes common law pisabimty of, not
EX POST facto. — Statutory alterations which do not increase the pun-
ishment, nor change the ingredients of the offense or the ultimate facts
necessai-y to establish guilt, and which only remove existing restrictions
upon the competencj- of certain classes of persons as witnesses, relate
to modes of procedure only, in v>hich no one can be said to have a vested
right, and which the state, upon grounds of public policy, may regulate
at pleasure.

Error to the Supremo Court of the Territory of Utuli.

Thomas J/an/uiIl and Zee J. S/iarj), for i)laiiifin" in error.
2faurij, assistant attorney -general, for defendant in error.

]\rr. Justice IIaklan delivered the opinion of the court.

AVe are now required to determine whether the court of
orioinal jurisdiction, in its conduct of the last trial, comniilted
any error to tlie prejudice of the substantial rights of the de-
fendant.

I. The validity of the judgment is questioned upon the
ground that a part of the ])roeeedings in the trial court were
conducted in tlie absence of the defendant.

The Crimiiud Code of Proccdui'c of Utah, section 21 S. pro-
vides that, " If the indictment is for a felony, the defendant
must be personally present at the trial; but if for a misde-
meanor, the trial may bo had in the absence of the defendant;
if, however, his presence is necessary for the purpose of identi-
iication, the court nuiy, upon application of the ])rosc('nting
attorney, by an order or warrant, require the pcr,sonal attend-
ance of the defendant at the trial."

The same code provides that a juror may be challenged by
either party for actual bias, that is, "for the existence of n
state of mind which leads to a just inference in reference to

IIOPT V. UTAH.

419

llie case tluit lie will not act with ontire impartiality " (sections
239, 241); such a challenge, if tho facts he denied, must bo
ti'ied by tliree impartial triors, not on the jury panel, and ap-
pointed by the court (section 24^(>); the juror so challenged
'• may bo examined as a witness to ])rovc or disprove the chal-
lenge, and must answer every question pei'tinent to the in-
(juir}' " (section 249); " other witnesses may also be exa.niined
on cither side, and the rules of evidence applicable to tlio trial
of other issues govern the admission or exclusion of evidence
on the trial of the challenge" (section S.'O); "on the trial of
the challenge for actual bias, when tho evidence is concluded,
the court must instruct the triers that it is their duty to find the
cliallenge time, if in their opinion the evidence wan-ants tho
conclusion that the juror has such a bias against the party
challenging him, as to render him not impartial, and that if
from tho evidence they believe him IVee from sucli bias, tliey
must find the cluiUenge not true; that a hy[)othetical oj)inion
on hearsay or information supjiosed to be true is of itself no
evidence of bias suHicient to disijualify a juror. Tlie court
can give no other instruction" (seciion 2.") 2); "tho triers must
thereui)on find tho challenge either true or not true, and their
(leciriion is final. If they find it true the juror must bo ex-
cluded" (section 2r.n).

It a])pears that six jurors were sejiarately challenged by the
defendant for actual bias. The grounds of challenge in each
case wero denied by the district attorney. For each juror
triers were appointed, who. being duly sworn, were, " before
proceeding to try the challenge," instructed as recpiired by
seclicm 252 of tho Criminal ("ode; after which, in each case,
the triers took the jui'or from the court room into a difFei'cnt
room and tried tho grounds of challenge out of the presence
as well of tho court as of the defendant and his counsel. Their
findings wore rotui-ned into court, and tho challenge, being
found not true, tlie jurors so clinllengod resumed their seats
among those summoned to try the case.

Of the six challeng(nl for actual bias, four Avere subsequently
challenged by tho <lefendant peremptorily. The other two
wei'o swoi'ii as trial jurors, one of them, however, after the
defendant had exhausted all his peremptory challenges.

1^0 objectiou was made to tho triers leaving tho court room,

420

AMERICAN CRIMINAL REPORTS.

nor was any exception taken thereto during tlie trial. Tlio
jurors ])ro})ose(l were examined by tlic trioi's without any tes-
timony l)eing offered or produced, either by the prosecution or
the (Uil'ense.

It is insisted, in l)ehalf of the defendant, that tlie action of
tlie court in permittinf>" the trial, in his absence, of those clial-
Icui^es of jurors was so iri'e<;ular as to vitiate all t!>e subso-
([uent proceedings. This point is well taken.

The Criminal (.'ode of Utah does not authorize the trial by
triers of grounds of challenge to bo had apart fi'om the court,
and in the absence of tlu; defendant. The specific |)rovision
made for the examination of witnesses "on either si<le,"' sul)-
ject to the rules of evidence applicable to the trial of other
issues, shows that the prosecniting attorney and the defendant
were entitled of right to l)e present during the examinaticm by
the triers. It certainly was not contem])lated that witnesses
should 1)0 sent or brought before the triei's without the party
producing them having the privilege, under the su])ei'vision of
the court, of ])ropounding sucli (juostions as would elicit the
necessary facts, or without sin o])poi'tunity to the opposite side
for cross-examination. These views lind some sui)poi't in the
further provision making it the (hity of the court, " wh(>n the
evidence is concluded," and before the triois nud\(> a linding,
to instruct them as to their duties. In the case boiore us tlio
instructions to the triers were; given before the latter proceeded
Avith the trial of tlie challenges.

l?ut all doubt up<m the subject is removed by the express re-
quirement, not that the defendant may, but, where tlu^ indict-
ment is for a felony, must bo "• juM'sonally |)rosont at the ti'ial.''
The argunuMit in behalf of the govi'rnment is that the trial of
the inilictment began after and not bofoi'o the jury was sworn;
conse(|uently. that the defendant's personal ])resonce was not
re(|uirod at an earlier stage of the proceedings. Scnne warrant,
it is suj)pos(>d l>y counsel, is found foi* this position, in decisions
coustruing particular statutes in which the woi'd "trial" is
used. Without stop])ing to distinguish thoscM^ases from the
one before us. oi' to examine llioi grounds upon which they are
placed, it is suHiciont to say lliat the pui'posi? of tla^ foregoing
])rovisions of the Utah Criminal ("ode is, in prosecutions for
felonies, to prevent any steps being taken, in the absence of

IIOPT r. UTAH.

421

the accused and after tliocasc is called for trial, which involves
Ills substantial ri«>lits. The i'(>(]uii'enient is, not that he must ho
j)ers()nall\' j)reseiit at the trial by the jurv, but "at the trial."
The code, we have seen, prescribes /^rounds for challenjie by
either party of jui'ors proposed. And |)rovision is ex))i'essly
made for the " ti'ial " of such challen,i>es, some by the court,
others l)y trici's. The prisoner is entitled to an impartial jury
ccunposed of persons not discpialilied l)v statute, and his life or
liberty may depend upon the aid which, by his personal prcs-
eiu'e, he may j^ivcsto counsel and to the court and trici-s, in the
selection of jurors. The lu'cessities of the defense may not bo
nu't by the ))resence of his eounsel only. For every ])ur))ose,
therefore, involved in the i-etpiirement that the defeiulant shall
be ])('isonally ])resent at the trial, where the indictment is for
felony, the trial commences at least from the tinu^ when the
work of impanelin<>' the jury beg-ins.

Hut it is said that the riyht of the accused to be ]>resent
before; the triers was waived by his failure to object to their
retirement from the court room, or to their trial of the several
challeng-es in his absence.

"We are of opinion that it was not within the jiower of the
accused or his eounsel to dis])ense with the statutory reipiirc-
nuMit as to his persoiud presence at the trial. The argument
to the contrary lUH'ossarily proceeds u|)on the <iTound that ho
alone is concerned as to the mode by which he nuiy b(> de-
prived of his life or liberty, and that the chief object of the
])rosecution is to ])unish him for the; crinu' cliarii'ed. I'ut this
is a mistak(Mi view as well of the relations which the accused
holds to the public as of the end of human punislunent. The
iiatiu'al life, says l)laclvstoiu\ "cannot legally be (lis|)ose(l of or
destroyed by any individual, lU'ither by Ihe person himself, nor
by any other of his fellow civatures, nu>rely upon their own
authority." 1 151. Com., l.').''). The public has an intei'cst in
his life and libei'ty. >>either can be lawfully taken except in
the mode prescribed by law. That which the law makes es-
sential in i)roceeding's involving* the de])rivation of life or lib-
erty cannot be dis|)ensed with or aifected by the consent of the
accused, much less by his mere failure, when on trial and in
custody, to object to unauthorized methods. The great end of
punishment is not the expiation or atonement of the oll'ense

422

AMERICAN CULMINAL REPORTS.

ooininittcd. but the ])revonti»)n of future olTonsos of the samo
kind. -I- 151. Com., 11. Such I)(>in<,f the rehition which the citi-
7/JU holds to the public, and the; ((bjcct of punishment for pub-
lic wrong's, the le«^-islatui'e has deenu^d it essential to the
protection of one whose life or liberty is involved in a prosecu-
tion for felony, that he shall bo pci'soiudly present at the ti-ial,
that is, at evei'y sta<^'e of the trial vv-Iumi his substantial rights
may bo ad'ected by the ])roceedings a<j;ainst him. Jf he be de-
])rived of his life or liberty without biMii"^- so present, such dei)-
I'ivation would bo without that duo process of law reipiiied
by the constitution.

For these reasons Avo are of opinion that it was error, which
vitiated the verdict and judi;ni(^nt, to permit the trial of the
challeng'es to take place in tlu> absence of the accused.

2. Another assignment of error relati^s to the action of tlit!
court in jjci'mitting the surg(H)n who lind made a jxisl-niiifli m,
e.xainination of the i)ody of a corpse whicli was claimed by the
])ro:-;ecution to be that of .lohn V. Turner, to state that one;
F«)\vl(>r identilled tlu> !)ody to him.

The surge(jn testilied that the l>ody examined by him v.m;; on
the platform at tlu^ raili'oad (h^pot in Salt Lake ("ity, in a
wooden case and coilin. The fe.tlier of the deccMsed t(>stilii>d
that he did not communicate p{>rsonally with the surgeon, noi'
see that his son's bodv was delivered to him; that he Ii"i it ;
the railroad depot in Salt hake ("ity, in a W(jo(len
closed in a box; and the fact that the body of the dec . was

originally placed in such a colIin was ])roved by a wi, ; wlm
])ut it in the coilin. And yet there was testimony siiowiii^ (h;
there was a body in the same depot, at or about the time re-
ferred to by the surge, )n, which, having been i)laced in a metal-
lic case covered by a wooden box, liad been shipped from
EcIkj, by rail, to Salt Lake City; also that it showed injuries
" generally similar " to th<we described by the surgeon. AVere
there two bodies of deceased persons at the samo dei)ot, about
the same time, one ''in a wood c<jllin inclosed in a box," and
the other ''in a metallic case covered by a Avooden boxT'
There would be some ground to so contend did not the bill of
exceptions, in its reference to the body shipped from Echo in a
metallic case, imply that there was testimony showing it to be
the one that " had been identilied as the body of the deceased,

HOPT V. UTAH.

i2i

.Tolni F. Tiinior." Tlio confusioji ujion the subject arises from
tlio fiiiliirc to s(at(! that the body wliicli the father of tl>o de-
ceased l(>tt at th(! raih'oad depot was tlie same as that shij)ped
from Kc'hcj to Salt Lake City. It was. perhaps, to this part of
tlie case the court referred when, in tlic eharge to the juiy, it
said tliat the ])rosecutiou "has inti-oduced a vast amount of
circumstantial evidence." Be this as it may, it was a material
(jucstion before the jury whether the body examined by the
sui',ii;'eon was the same one that the fatlier of the deceased liad
left at the (le[H)t, and, therefore, the body of tlic ])erson for
whose murder the defendant and Emerson were indicted. If
it wi;s uot, then all that he said was imnmterial. If it was, the
»>vid('iic(> otiicrwise connecting defendant with the death of John
K. TunuM', tiie statements of that witness as to the condition
of the corpse, the nature of the injuries — whether necessarily
fatal oi' not — observable npon the body examined by him, and
how the blows, apparent upon inspection of it, were probably
indicted, became of great consequence in their bearing upon
the guilt or innocence of the defendant of the crime of mur-
<ler.

Xo propiH" foundation was laid for the question propounded
to the sinvj,(M)n as to who pointed out and identified to him the
])ody he examined as that of John F. Turner. lie had ])revi-
ously stated that iic did not personally know the deceased and
(lid not recognize the body to be his. lie did not know that
it was the body which the father of the deceased desired hhn
to examine; ct>nsequer.tly his answer could only place before
the jury the statement of some one not inider oath, and who,
being absent, could not bo su])jected to tlic ordeal of a cross-
examination. The question plainly called for hearsay evidence,
which, in its legal sense, "denotes that kind of evidence which
does not derive its value solely from the credit to be given to
the witness himself, but rests, also, in part on the veracity and
('omi)etency of some other person." 1 Greenleaf, Ev., § 09; 1
Phil. Ev., lil'.t. The general rule, subject to certain well estab-
tablished excei>ti()ns as old as the rule itself — applicable in
civil eases, and, therefore, to be rigidly enforced where life or
liberty is at stake, — was stated in 2[tma Queen v. Hepburn^
7 ('ranch, 290, 295, to be, "that hearsay evidence is incompe-
tent to establish any specific fact, Avhich fact is in its nature

424

AilERICAN CRIiHNAL REPORTS.

susceptible of being proved by ^vitnesses who speak from their
own knowledge." " That this species of testimony," the
court further said, si)eiiking by Chief .fustico JMarsliall, " sui)-
posed some better testimony whicli miglit be a(Uluced in the
j)articular case, is not the sole grounil of its exclusion. Its in-
trinsic wealaiess, its incompetency to sjitisl'y tiie miiul of tlie
existence of the fact, and the frauds whicli might be i)racticed
under its cover, combine to support the rule that lu.«irsiiy evi-
dence is inadmissible." The s[>ecillc fact to bii estal>lish(Ml by
proof of what some one else siiid to the sui-geon as to the iden-
tity of the body submitted to his examuuitiou was that it was
the body of John F. Turner.

AVhat Fowler — who was not even sliowtj to have been placed
in charge of the body nor commissioned to deliver it to the
surgeon, ncu' to be ac(piainted witli the deceased - said in tlie
absence of the prisoner as to the identity of the body, was
plainly heai-say evidence witiiin th(5 rule rec(»gnized in all the
adjudged cases. As such it slioukl, upon the showing nuide,
have been excluded.

!). The next assignment of error relates to that pru-tion of
the eliarge which represents the court as siiying: "That an
atrocious and dastardly murder has been committi'd by .some
l)ers(m is appaivnt, but in your deli b(!rat ions you should bo
careful not to be inlluenced by any hiding."

Uy tlie statutes of Utah. " mui'ck^r |)(!r|)('t rated \ty poison,
lying in wait, or any other kind of wilful, (h-libcratc, malicious
or premeditated killing; or committed in the p 'i|K!ti"ilion of,
or attem[>t to ])erpetrate, any arson, rape, burglary <»/■ roldx'i'v;
or peri)etrated fi'om a premeditated design, unlawfully and
maliciously to ell'ectthe death of any other human b(Mng other
than him who is killed; or perp(!ti'at(>d by any act greatly dan-
gerous to the lives of otluii's, and evideiu-ing a dcpi-aved mind,
regardless of human life, is murdisr in the lirst dcgrci!; and
any other homicide, conunittcMl under such (;ii'ctimslaiic(s as
would have constituted murd<>r at common law, is murdei- in
the second degree." ('om|)iled Laws Utah, lsT;5, p. ."isr*. The
])nnishment ui nuu'der in the (irst degnn^ is death, oi-, upon the
recommendation of t\u) jury, impi-isonment at hard labor in
the i)enit(!ntiary, at tin; discretion of the court; whih? the pun-
ishment for umrder in the second ilegroe is impi'isonnu;nt ut

IIOPT V. UTAH.

rt25

hard labor in tlio penitentiary for not loss than live nor more
than iifteen years. Id., 5SG.

In view of tliese statutory ])rovisions, to which the attention
of the jury was called, it is clear that the observation ])y the
court, that "an atrocious and dasfardly murder has been coni-
niitled by some ])erson,'' was, naturally, regarded by them as
an instructicin that the olfense, by whomsoever committed, was
murder in tlie iii-st degree, whereas it was for the jury, having
been infoi-med as to what was murder, by the laws of Ttah, to
s;iy wlu>tlu>r the facts made a case of murder in tlie lirst degree
or murder in the seccnid degree.

It was competent for the judge, under the statutes of Utah,
to state to the jury "all matters of law necessary for their in-
foi-mation," and, couseipiently, to inlorm them what those stat-
utes dt'lined as murder in the lirst degree and murder in the
secdiid degree. J.atvs of Utali, 1S7S, p. 1:>0; Code of Crim.
]'r(»c., >,',^ L*^.")— k Ihit it is (^x|)ressly declaivd by the Code of
Criiuiiiai Procedui'c^ that, while lie may "state the testimony
and tU'clare tiie law," he "must not charge the jury in respect
to matters of fact." Sec. :i.')7. The error committed was not
cuivd l)y lh(( ]>revious ()l)servatiou of the judge that by the
lausof I'tiih the jury are "the sole judges of the credibility
of the witnesses and »»f tiie weiglit of the evidence and of the
facts." It is rather more correct to say that the elfect of that
ol)servatiou was destroyed l>y liie statement at iiie conclusion
of the charge that tiie murder, by v, liomsoever committed, was
an atrocious and dastardly one, and therefore, as the jury
niiglit infei', in view of tlu^ hmguage of the statute, was mur-
der ill the lirst (h'gree. The [)risoner had the right to the judg-
ment of the jury ujioii the facts, uninHuenced by any direction
from the court as to the weight of evidence.

For the reasons stated the judgment of the supreme court of
tlie territory must bi> revei'sed and the case remanded, with
directions that tiie verdict and judgment bo set aside ami a
new trial ordered.

The assignments of error, however, present other cpiestions
of iiiiportance, which, as they are likely to arise upon another
trial, we deem projier to examine.

4. The Jirst of these (piestions relates to the action of the
court in permittin>«-Carr, called us a witness for the defense, to

420

amehican criminal reports.

give m evidence a confession of the pi'isoner. That confession
tended to implicate the accused in tlie crime charged.

Tlie adinissibihty of sucli evidence so hirgely depends npon
the special circumstances connected with the coni"es:;ion that it
is dillicult, if not impossible, to formulate a rule that will com-
prehend all cases. As the question is necessarily aihlresscd, in
the lirst instance, to the judge, and since his discretion nu;st ho
controlled by all the attendant circumstances, the courts have
Avisely forborne to mark Avitli absolute precision the limits of
admission and exclusion. It is unnecessary, in this cas(\ that
Ave should lay down any general rule on the su])ject; for we
are satisfied that the action of the trial court can bo sustained
upon grounds which, according to the weight of autlinrity, are
suillcieut to admit confessions made by the accused to one in
authority.

It appears that the defendant Avas arrested at the railroad
depot in Cheyenne, Wyoming, by the witness Carr, wh;) is a
detective, on the charge nuulo in the indictment. Tiic falln'r
of the deceased, pi'escut at the time, was ujuch excited, and
may have made a motion to draw a revolver on the <lefeM(hiiit;
bat of that facl: the witness did not speak jtositively. 'i'h(> w it-
ness m;;y have ])revented him from drawing a wcaniu. and
thiidvs he told him to do nothing i-ash. At the a!'re^;t a lai'ge
crowd gathered around the defendant: (^ii'r hurried him n[\' ti»
jail, sending Avith him a policeman, while he remaine(l behind,
out of the hearing of the policeujan and the defendanl. In
two or three minutes ho joined them, and immediately the
accused commenced making a confession. What conversation,
if any, occui'red betwei-n (he latter and the ])oliceman during
the brief period of two or three minutes jn'eceding the confes-
sion Avas not known to the witness. So far as witness knew,
the bill of exc(>|)tions stales, ''the confession Avas voluntary
and unindueiu'ed by hopes of reward or f(Mr of piuiishmeiit;
Ik; held out no indueenient, and did not know of any induee-
nnmt IxMiig held out to defendant to confess." This was all
the evideiu'e showing or tending to sliow that the confession
Avas A'oluiuary or uninlhienced l)y hope of reward or fear of
punishment.

While s(nu<' of the adjudged cases indicate distrust of con-
fessions which aj'o not judicial, it is certain, as observed by

IIOPT v. UT.VH.

427

Baron Pnrlcc in Hcrjhm r. DaM. 2 Den, Cv. Cas., 430, 445, tliat
the I'lilo against their admissibility has been sonietin^os cavi'iecl
too fai', and in its application jnstico and common sense have
too fi'e(]uently boon saci-ificnl at the slirino of mercy. A con-
fession, if fi'cely and voluntivvily made, is evidence of the most
satisfactoiy character. Such a confession, said Eyro (C. B., 1
Leach, 2^V.)\ "is deserving!: of the liighest credit, because it is
]iresun\ed to flow from the stroiii:;-(>st son-;o of g"uiU, and, tliei'O-
fore, it is admitted as ])ro()f of tlie crime to wliich it refers."

Ek'mentary writei-s of authority concur in sayin<>' that,
■while from the very nature of such evidence it must be sub-
jected to carefid scrutiny and received witli ,;rreat caution, a
(lehbci'ate, voluntary confession of ^-uilt is anion;.'' the most
elfectuid ])r(»ofs in the law. und constitutes the stron'i,-e.;t evi-
dence ayainst the party ma.king' it that can Ik; iviven of tho
facts stated in such confession. 1 Greeideaf. Ev., -;$ L*15; 1
Arc]d)old, Cr. PL, 1-2.5; 1 rhillipps, Ev., 5:i;5-:U; Starkio,
Ev.,73.

But the ])resum])tion npon which Avciglit is !j;iven to such
evidence, numely, that one wlio is innocent will nof imperil his
safety or prejudice liis interests by an mitriie stntenient, ceases
when llie confession appears to have been made either in con-
siMiueiu':> of inducements of a teu»poral na'ure, liehl out by
one in autliority, toueiiin,i>' the char_v;e preferred, or bt^eause of
a tlu'eat oi- promise by or in Ihe pr(\-!{Mice of such person,
which, opci'ating' upon tlie tears or ho]ies of tlu) accused, in
refei'enec to the chai^g'e, (le[)rives liim of tliat freedom of will
or self-control essential to mal:e his confc^ssion vohmtary
within tlio meaning of tlio hiw. Tested by these conditions,
tlu-re secuis to have been no reason to e.\clud(^ the confession
of tlie accused; for tho existence of any sucli inducements,
threats or pi'omises seems to have been n(\g'atived by tlie stato-
lueut of the einaimstances iiiuh-r which it was made.

But it is coiiteiKhHl that the court ei-red in not excluding this
proof until the prosecution produced the policeman and proved
that nothing was said or done by him, in the ;ibsence of Carr,
wliii-h unduly inlluenceil the making of the confession. Tho
argument is that, jiossibly, the ]ioliceinan olfered such induco-
ineuts, or made such threats or promises, that the prisoner,
Avhen joined by CaiT, was not in a condition of mind to niako

428

AMERICAN CRIMINAL REPORTS.

a confession wliich tlie law would deem volimtiiry. This posi-
tion, although plausible, is not sustained by authority', nor c(ju-
sistcnt with sound reason. The circumstances narrated by tlie
Avitness ])roved the confession to be voluntary, so far as iuiy-
tliing- was said or d(me by him on the immediate occasion.
There was nothini,' disclosed which made it the (hity of tlie
court to require, as a condition precedent to the admission of
the evidence, that the prosecution should call the policeiuiiu
and show tliat he had not, when alone with the accused, unduly
inlluenced him to make a confession.

In Pn.i- V. Chirrs, 4 CaiT. cV: I'ayne, L'lM; X C, .'} Kussell on
Ci'imes (Sharswood's ed.), 4.'>I, 4.'):*, the i)rosecution pro[)osc(l
to give in evidence a confession made by the accused before
the coroner. It ap])earin,<'' that a magistrate had ]>reviously
an intei'view with the prisoner, it was suggested that, iis li(>
may have b(>en told liy that oHicer that it was lu'ttei' to con-
fess, the prosecution should call him. Hut the court said that,
■while it would l)e fair in the prosecutoi's to call th(? magistrate,
it would not compel them to do so, but, if they <lid not. llie
lu'isnner might do so if he chose. In Ium: v. Willluiiix, Kos-
coe's Ci'im. Ev. (7th Amer. ed.), 54; ?> Kussell (»n Crimes, id..
4:!:*, it appeared that a jn-isoner, being in the custody of two
constables on a charge of arson, a third peison went into the
room. The prisoner imnuvliately asked him to go into anotln r
room, as he wished to speak to him. They went into tiiat
room and the pt-isoner made a, statement to that person. It
was contended that tiie constabl(>s ought to be called to prove
that they ha<l done nothing to induce the j)i'isoner to confess.
But Taunton, .!., after consulting with Litlledale. .!.. said :
"We do not think, according- to the usual practice, that we
ought to exchuU^ the evidence because a constal)l(> may have
induced the prisoner to make the statement; otherwise lie
must, in all cases, call the magistrates or constables before
whom or in whos(> custody the prisoucM- has been."

In Jiex V. \V(ifii('i\ ;{ Iluss. on Crimes (Sliarswood's ed.),
^'.Vl, the ])risoner, when before the committing magisti-ati',
having' been duly cautioned, madc^ a. confessioii, in which he
alluded to one j)reviously made to a constable. It was i-e-
niarked by the C(mrt that although it was not deenunl neces-
Bary that a constable, in whose custody a prisoner had been,

IIOPT V. UTAH.

429

sliould 1)',^ onllod in ovoiy cnso, yet, in view of tlio reference to
liini, he should be called. The constable bein;;- called proved
that lie did nf)t nse any undue means to obtain a confession,
but he disclosed the fact that he had i-eceived the prisoner from
another constable, to whom the jM-isoner hvA made some state-
ments. As it did not a]ipe;ir that any confession was nuido to the
latter, and only a])peared that ;i statement was made that mi<^ht
either be a ccmfession or a denial, or an exculpation, the court
would not riMjuire him to be calh^l. S. ('., lIosco(>'s ('rim. ]']v.
(7th Amer. ed.), ~)4~^>. Jiosco(( (p. 'u>i) states the rule to be,
that, "in order to induce the court to call another olllcer in
whose custody the ]U'isoner has been, it must appear either that
souK^ inducement has been used by or some express reference
made to such oHicer." JJussell says: " Vov the purpose of in-
tnuhicin;."' a conH^ssicm in evidence, it is unnecessary, in gen-
eral, to do more than negative any ])romise or inducement held
out hy the person to whom the conl'es.sion was made." A"ol. 3,
p. 4:{'l.

While a confession made to one in authority should not go
to the jury unless it app(Nirs to the court to have been volun-
tary, yet as the plaintilf in ei'ror chose to let its admissibihty
rest upf)n the case nuidc by the detective, without any intima-
tion that it would be dilferent if the ])oliceman was examined,
and since there was nothing in the circumstances suggesting
collusion between the onicers. we do not thiidc the court was
bound to exclude the confession n[)on the sole ground that the
1)()1 iceman was not introdu(!ed.

5. The last relates to the action of the court in admitting,
as a witness in behalf of the prosecution, Emerson, then serv-
ing (mt a sentence of conlinement in the penitentiary for the
crime of murder, and the judgment against whom had never
been reversed. ]Iis testimony tended to implicate the defend-
ant in the crime charged against him. Objection was made
to his competency as a witness, but the objection was over-
ruled.

At the time the homicide was committed, and when the
indictment was returned, it was provided by the criminal
j)rocedure act of Utah of ISTS, that " the rules for determining
the competency of witnesses in civil actions are ap[)licable also
to criminal actions and proceedings, except as otherwise pro-

430

AMEPtlCAN CRIMINAL REPORTS.

vidod in this act." Ami tlio civil pvacticc act of that territory
provided, section 374, tliat ''all persons, withont exception,
otherwise than as specified in tliis cha])ter, may l)e v/ilnesscs
in any action or proceeding-. Facts which, by the eomnion
law, would cause the exclusion of witnesses, may still beslKnvn
for (he purpose of affecting their credibility." Compiled L:i\vs
T'tah, .")(>.'». Further, section 378, that " ]iersons against whom
judgment has been rcndere<l u])on a conviction for felony,
unless pardoncil by the governor, or such judgment lias been
reversed on aj)i)eal, shall not be witnesses."

On the !ith day of ]\larch, 1S-S2, after the date of the rJleged
homicide, but prior to the trial of the case, an act was ])nsse(l
which repealed the section of the civil practice act last f;iii)ted.

It is contended that such repeal, by Avhich convicted Anions
were made competent witnesses in civil cases, did not m;\]n'
them competent in criminal cases; in other words, for such is
the e'l'ect of the argument, those who were excluded as wit-
nesses, under the civil practice act, at the time the criminal
procedure act of 1S7S Nvas adopted, remained incomi:cl(-nt in
criminal cases, xmless their incompetency, in such cases, wiis
removed by some modification of the civil practice actexpr;::sly
declared to have reference to criminal prosecutions.

In this view we do not concur. It was, wc think, intcMided
by the criminal ])rocedure act. of 1S7S, to make thecomjietcncy
of witnesses in criminal actions and proceedings d(>pend upon
the inquiry whether they were, when called to testify, excluded
by the rules determining their comi)etency in civil action ;. If
competent in civil actions, when calh'd, they were, for that
reason, competent in criminal proceedings. The pai'pose was
to have one rule on the subject applicable alike; in civil and
criminal proceedings.

But it is insisted that the act of 1SS2, so construed, would,
as to this case, be an ex j^od facto law, within the meaning of
the constitution of the United States, in that it permitted the
crime charged to be established by witnesses whoui the law,
at the time the liomicide was committed, made incompetent to
testify in any case whatever.

The provision of the constitution which prohibits tin* slates
from passing ex ptMfado laws was examined in J\fhuj v. Mis-
soui'i, 107 LT. S., 221. The whole subject was there fully

KOPT V. UTAH.

431

and carefully consitlored. The court, in view of the adjudged
cases, as well as upon principle, held that a provision of the
constitution of ^lissouri denying to the prisoner, cliarged with
murder in the first degree, tlio benelit of the law as it was at
tlie commission of offense — under wliich a conviction of mur-
der in tlie second degree was an acquittal of niurdor in the
'first degree, even though such judgment of conviction was
subsecjucntiy reversed — was in conllict with the constitution of
tlie United States.

Tliat decision proceeded upon the ground that tlie state con-
stitution (le[)rivod the accused of a substantial right which the
law gave him when the offense was committed, and, therefore,
in its ap[)lication to that offense and its consequences altered
the situation of the party to his disadvantage.

15y the law as established when the oU'ensc was committed,
Kring could not have been punished with death after his con-
viction of murder in the second degree, whereas, by the abro-
gation of that law by the constitutional provision subsequently
adopted, ho could thereafter bo tried and convicted of murder
in the lii-st degree, and subjected to the punishment of death.
Thus the judgment of conviction of murder in the second degree
was de])rived of all force as evidence to estaitlish his absolute
immunity thereafter from punishment for murder in the lirst
degree. This was held to be the deprivation of a substantial
right which the accused had at the time the alleged olfense
was committed.

But there are no such features in the case before us. Stat-
utes which simply enlarge the class of persons who may be
competent to testify in criminal cases are not ex post facto in
their application to prosecutions for crimes committed prior to
llieir passage; for they do not attach criminality to any act
]>feviously done, and which was innocent when done; nor ag-
gravate any crime theretofore committed ; nor provide a greater
l)unishment therefor than was prescribed at the time of its
commission; nor do they alter the degree, or lessen the amount
or measure, of the proof wliich was made necessary to con-
viction when the crime was committed.

The crime for which the present defendant was indicted, the
])unislimeut prv^scribcd therefor, and the ([uantity or the degree
of proof necessary to establish his g'uiltj all remained unaf-

482

a:\ierican crdiinal reports.

footed by tlio subsoqucnt statute. Any statutory altovation of
the Ic^gjil rules of evidence which would authorize conviction
iil)on less ])roof, in amount or dei^ree, than was re(|uired when
the olfense was coniniittod, nii^ht, in respect of that olfense.
be obnoxicnis to the constitutional inhibition upon er pout fmio
laws. I'ut alterations which do not increase the punishniont.
nor ohauiie the in<iro(lients of the offense or the ultinuite facts
necessary to establish guilt, but — leavin<^ untouched the nature
of the crime and the amount or de<>i'ee of proof essential to
conviction — only remove existin<; restrictions ui)on the ooni-
petoncy of certain classes of ])ers(ms as Avitnesses, relat(\ to
modes of pi'ocedure only, in which no one can be said to h;ive
a vested right, and which the state, upon grounds of ]nil)lic
policy, may regulate at pl(?nsure. Such regulations of llic
mode in which the facts constituting guilt nuiy he placed
before the jury can b(nnad(Mi)iplical)le to ])rosecutioiis oi'ti'iiils
thereaft(M' had without reference to the date of the connnissioii

of the oll'onse chariicd.

Jndymi'nt rti'e):s(ul.

NoTF.. — I'lrliiiiiiiar;/ inquiry. — Tlu> iiKjuiry whetlu'r confessions wero
inado under such cireunistiinces as to nialie tlicni comitetcnt cviilencc is a
preliminary one to be niado by tlie court, in whicli a full investi,i:jation
slioultl be liad, with a view to determine the competency of the ])ropose'l
confi's;.ions. and it is for the juiIko, after such investi};atioi), to determine
wliether the confession, or any part of it, shall be admitted in evidence or
n(jt. Such an investigation o\iji;ht not to be made within the hearing of the
jury. SimmoHS V. State, 61 Miss., 21:5.

•' While the jury is a component of the vourt, it is not Ji part f>f its duty
to determine upon the comjietency of evidence, nor is it necessary that it
should be present while the jiidj^o examines a witn(>ss to tletcrmiiu! upon
the competency of his tc.-itimony." Kniincr v. State, 01 Miss., l.")S; Hall r.
State, O.TOa., 00.

It is a (piestion for the jmlge, in every case, to determine whether or not
the alleged words of inducement were aitually such as to inchice tho prisoner
to make a confession of guilt. 1{. v. Garner, 1 Den. ('. C, !]2!). Admissions
by a jn'isoner chargoil with murder, induced i)y a promise from the i)rose-
cuting attorney, that, if the prisoner would tell what he knew of tho nnu-der.
he would do all he couM to save him, are not admissible; nor can state-
ments made by the ])risoner to other jx^sons before such promise is with-
drawn be received against him. Simmons r. State, 01 Miss., 213.

The words, "you had better tell the truth," have sometimes been lield or
said to render a subsecpicnt confession inadmissible, because they would
probably bo understood to mean that it would be better to say somethin;r.
and til ;t "tho truth" in the mind of tho speaker implied a confession of

HOPT r. UTAH.

433

ffnilt The Qiiecn r. Jarvis, L. R., 1 C. C, 90, 09; Rcrfina v. Fennel! , 14
Cox, C. C, 607; Begina r. Doherfij, 13 Cox. C. C, 23. But similar words,
wiien not implying that the speaker expected a confession, but only the
truth, have been held or said not to render a subsequent confession inail-
uussible. The Queen v. Reeve, L. R., 1 C. C, 303; S. C, 12 Cox, C. C, 179;
Ite'jina v. Baldey, 5 Cox, C. C, r)23-529. The words, " you had better own
up," were held to be equivalent to saying, "you had better confess," sind
therefore rendered a confession inadmissible. Com v. Nott, 135 Ma.ss., 272.

When it apjx^aied that in the middle of thij night, after the officer who
liad arrested the prisoner had retired for rest, the prisoner, instead of being
allowed the same privilege, was visited by three persons in succession, whose
mission appears to h.ave l)een to obtain confessions by impressing upon the
mind of the prisoner that it would be better for him and he would get off
easier by making a confession. None of tliese iwrsons was the ofiicer in
charge ; but their admission to the cell at such an unreasonal)le hour car-
ried with it an implication of the officer's consent to their admissimi, etc.
Mr. Justice Cooley, commenting ujioii this state of facts, in delivering the
opinion of the court in People v. WoJeott, 51 Mich., 612, says: " No reliance
can he placed upon admissions of guilt so obtained ; for the very obvious
reason that they are not made because they are true, but because, whether
true or false, the accused is led to believe it is for his interest to make them.
The cases of Fitatc v. Phelps, 11 Vt., 110: S. C. 34 Am. Dec, 072: Shite v.
Walker, 34 Vt., 290; Heetor v. State, 2 Mo.. 100: S. C, 22 Am. Dec, 454;
Stater. Bosticic, 4 HaiT., 503; State v. Guild, 10 N. J., 103: S. C, 18 Am.
Dec, 404; Spears v. State, 2 Ohio St., 583; Coii). v. Tai/lur, 10 Gray, 190;
Smith V. State, 10 Ind., 100; Miller r. People. 39 111., l.-iT; Cain v. State, 18
Tex., 387; Darin i\ State, 2 Tex. App.. 588; Van liuren v. State. 24 Miss.,
.-.12; Jordan v. State, 32 Miss., 382: People v. Barrie, 49 Cal.. 342: State v.
York, 37 N. H., 175; Miller v. State, 40 Ala., 54; Porter v. State, 55 Ala.,
95; State v. Whitfield, 70 N. C, 3.")0, :uid State v. Hagan, 54 Mo., 192, may
all be cited in sujiport of tlic \ icw.s here expressed, and the list might easily
te iiicrc.'i.sed very considerably. The ciuse of Flagg v. People, 40 Mich., 700,
has sufficient resemblance to the one before us to render what is there said
ill iK>iut, and we refer to it for a further expression of our views on the gen-
eral subject."

CorpuH dclieti. — A confession is not evidence in any case m the absence
of i)r()of of the corpus delieti, but that fact need not be proved beyond the
jKissibility of a doubt, but is to be found by the jury like any ether fact in
the case. Gray v. Com., 101 Pa. St., 380. See, also, Williams et al. v. The
People, 101 111., 382.

Mental condition of accused at time of making. — Wlien confessions of
the accused are introduced in evidence against him, if qualified to testify
under the statute in his own behalf, he ought to be permitted to explain his
mental condition at the time he made the confessions, and the inducements
and motives operating upon his mind, in order that the jury may be afforded
an opportunity to judge of their proper value as evidence. Simmons v.
State, 61 Miss., 243. See, also, Com. v. Brayman, 136 Mass., 438.
Vol. IV — 28

434

AMERICAN CRIMINAL REPORTS.

Keenan v. The People.

(104 111., 385.)

New trial : Newly discovered evidence.

New trial granted when witness discovers that he was honesti^t

MISTAKEN IN HIS TESTIMONY AS TO CERTAIN JfATERIAL FACTS.— On the
trial of ono for murder, the only evidence connecting the accused with
the crime, which was committed in the city of Cliicago, was the testi-
mony of a saloon-keeper of that city, who testified to facts and circum-
stances pointing very strongly towards his guilt or participatio-.i in the
homicide, no witness seeing the murder or identifying the party who
committed the act. The prisoner denied all the material facts in tins
witness' testimony, and testified to being absent in the country on the
night of the murder, when the sal(X)n-kecper said lie was in his place of
business, about 10 or 13 o'clock, the accuse«l stating that early in
the morning after the murder took place he boarded a freight ti'ain going
into the city, as it was moving slowly, and conci^iled himself in a car,
the contents of which ho descrilied, to some extent. In this he was in
some measure corrol)orated by other witnesses as to the facts and cir-
cumstances detailed by him, and as to the contents of one of the cai-s on
that morning train, thus presenting a question to the Jiu'v ns to whose
story and version were true, or ontitlefi to belief. To rebut the prison-
er's statement, witnesses were called who testirK;d that the car doors on
such freight train were shut, and sealed with tin sejils, which, on exuin-
in.ation, after the arrival of the train in Chicago, were found to in<licat<>
no evidence of having Iwen broken, the witnesses exi)ri'.«siiig tlie opinion
tliat the car could not have l)een entered without disturbing the seals so
as to be readily detected. The jury found the accused guilty, thereby
giving no credit to his evidence. On motion for a new trial, allidavits
of several persons were protluced, one of them being a witness who had
testified for the people, who, after exiwrimenting with car doors
fastened and sealed as the cars on the train sj)oken of were, state<l on
oath that they found that cai-s fastened the same as the ont* the accused
claimed to have entered could be ojwned and closed leaving the seals in
apparent good order, and without breaking or injuring the same, and
that they would so testify if a new trial should be gi'ante<l. Tlie facts
stated in these affidavits were not contradicted, nor was anything pre-
sented to break their force. The court denied the motion for a new trial.
Held, that the court erred in refusing a new trial, in order that the
newly discovered evidence might be heard.

Writ of Error to tho Criminal Court of Cook County ; the
Hon. George Gardner, Judge, presiding.

John Keennn was indicted in the court below for murder,
and upon trial was convicted. A motion for a new trial was
denied, and the accused was sentenced to death. He thereupon
sued out this writ of error.

the

KEENAN V. THE PEOPLE. 435

Messrs. Storch c& Shuman, for the plaintiff in error.
Mr. LutJier Lafihi M'dls^ state's attorney, for the people.

Mr. Justice Dickey delivered the opinion of the court.

The 12th of November, 1870, was the date of the assembling
of an immense concourse of people in the city of Chicago.
Every part of the city was crowded with strangers. At such
times evil-doers abound, and become active. During the night
of that day, and about 4 o'clock in the morning of the 13th
day of November, the residence of ]\[r. Ilensley, situated on
Be Kalb street in the western part of the city, Avas entered by
burglars, and Ilensley received three gunshot or pistol wounds,
producing almost immediate death. The other members of the
family, aroused from their slumbers, came to the scene, and
found Ilensley in a d^-ing condition. He said nothing tending
to identify the murderer or murderers. His mother saw one
uuin escape througli the front doors, which were at the time
opened. A revolver was found near where the deceased fell.
A slioe was also found in tlie vestibule, between tlie doors
leadinir to the street. A window in the basement storv was
found to have been forced open, and a screw-driver was also
left by the invadei's. Some clothing was taken from tlie room
in which deceased had lodged, wliich was afterwards found,
hut there were no circumstances shown in connection witli tlie
•screw-driver or the clothes in any way tending to the identifi-
cation of the offenders.

Alth6ugh the police officers made every effort to solve the
pi'ohlem, and ascertain who committed the terrible crime, no
lurtlier light was discovered on tliat subject until about the
montli of June or July, 1881; nearly a year and a half after
tho mtu'der. About that time, Ilabercorn, the principal wit-
ness in this case, gave to the police a statement, in substance
thp same as that sworn to by him on the trial. The substance
of his testimony on the trial was, that for a short time before
the murder Keenan and two other men (Conners and Riley)
were often together at a saloon kept by the witness, and that
on tlie night of the 12th of November, between 10: 30 o'clock
that night and midnight, these three men were at that saloon
and cnTOffed in " a fuss among themselves," or animated dis-
putc, about some matter ; that at that time the witness was en-

430

AMERICAN CRIMINAL REPORTS.

gn<^c(l in playing poc^l on a billitird tabic, with a man by tlio
name of Wallace, and did not hear what these men said to
each other, or know what was the subject of their dispute;
that while witness was so engaged playing pool, Keenan called
him to one side, and asked the witness for the loan of his
" gun," and that the witness stepped behind the coiuiter and
gave Keenan a revolver. Soon after this Keenan again called
him aside, and asked him for a bottle of whisky, and the Avit-
ncss went again behind the bar and gave Keenan a bottle of
Avhisky, and the three men, Keenan, Conners and liiley, at
once went out together, Keenan taking with him the revolver
and the whisky; and the witness returned to the billiard table,
and for a short time continued the game with AVallace, but
very soon quit. AVallace went away, and the witness cIosimI
the saloon for the night and slept that night in the saloon, and on
the billiard table. The revolver Avhich was found shortly aft(;r
the murder on the floor near where the deceased fell was pre-
sented to the witness at the trial, and he testified that the same
Avas his ])roperty, that he had owned it for several years, and
that it was the same revolver that he loaned to Keenan the
night of November 12, 1879, as befoi-e stated.

The witness also testified that it was about midnight when
he closed the saloon, and that Keenan and his companions left
the saloon that night about ten minutes before midnight. lie
further testiiied that on the next morning, about 5 o'clock, ho
Avas roused by a rap upon a rear or side door of the saloon,
and, on opening the door, Keenan, Conners and Ililey came in
together and called for drinks; but, before getting the spirits,
approaching steps on the sidewalk were heard, and these
three men at once concealed themselves in a stairway' beliitid
the bar, one of them saying, "Cheese it — cheese it," which he
said was a phrase among thieves ; that the footsteps proved to
be those of some teamsters who habitually came into this
saloon very early for their drinks before going to their work;
that the teamsters stayed but a few minutes, and when thoy
left the three men in question came from their hiding place
and got drinks, and soon went away together.

The Avitness testified further that Avhile those three men
Avere in liis saloon on that morning, he observed that Riloy
had on but one shoe, and he asked hira, " Where is your other

KEENAN V. THE PEOPLE.

shoe?" to wliieli Riloy replied, *' Keenan or Conners thro wed
it down tlio sewer." llilev asked for a pair of shoes, and tlio
witness f^ave Iiini a pair of liis oUl sHppers which were behind
tho bar, and Riley wore them away that mornin*^. Ifo also
testilled that while these men were at his saloon on that <K'ca-
sion, ho asked Keenan for his pistol, and Keenan rei)lied : " Wo
had a priitty hard time; I got tho run; I lost it; I will s(piare
up with you, or I will got you another." IIo further testified
that during that day (Xovembor 13, 1870) ho read in a city
newspa})er an account of tho murder of Ilcnsloy, and that
after that, and about (5 o'clock that afternoon, Keenan and
Kiley came to him, and Keenan, calling him aside, said, " Can
you keep si secret ? " and the witness replied, " I know what
the secret is — I will keep it," and they said, " AVe will depend
on you," The talk was here interrupted by othei's coming up,
and they went away, lie further testified that on tho 11th of
December, 1S70, ho was himself arrested and put in jail in
Chicago; that Keenan was arrested and put in jail about a
month before ho was; that ho was kept in jail until the Kith
of July, 1S8<>, when he gave bail and was enlarged; that Kee-
nan was in the same jail with him, until about three weoks
before the witness got out on bail, but not in the same cell ;
that some time in June, 18S0, Keenan was taken from the jail
to the penitentiary; and on the morning of the da}' Keenan
was talcen away, Keenan stopped at the door of witness' cell,
and hiinded to him certain ])ai)ers and a package of clothing
to take home, saying, when he gave the papers: "Kead that,
and don't let any one see it." These notes the witness pro-
duced, and they were read to the jury, and were as follows;

"Friend Lot: When you Avrite to me sine your name
Frank Younjir, In all vour letters send vour address if them
])iirtys should turn up, let me know by saying business is bad,
and if they should trow up their guts you put a mark on the
end of the paper like the one is on this but not so big, just so
that I can see it. If them parties sliouhl turn up, and say that
thing is yours and that you gave it to mo, you keep still and I
will say it is mine and get you out of it, if I got to put myself
onto it don't fail to write and sine vour name Frank voung by
by."

" Friend Lot : tell Kitt Mcquaind and Frank McQuaid to

438

AMERICAN CRIMINAL REPORTS.

write to me good by lott I liope that you will get out you may
have ray best regard to all friends. You dont noe how bad I
feel as bad as a stub-tail mule in fly tinie. I wish to god that
you was out lott I will feel weary until you will get out good
by."

Ilabercorn further testified that he and Ivcenan, while in
jail together, often talked about the TIcnsley murder; that ho
was afraid the revolver would bo traced to him, an<l often told
Keenau so, and that Keenan always told him "not to be
scared, — that they could not prove it;" that witness often said
to Keenan, "if those other fellows were caught they might
peach, and he (the Avitness) would be in a fix," and that Koeiian
never told him anything else about this mui'dor. This witness
further testified that in ISSl, after Keenan had been brouglit
back from the penitentiary to the jail, and after the witness
had told the police what he knew, and before the indietincnt
in this case Avas found, he went to the jail to take Kccnan's
clotJies to him (which witness liad ke[)t for liim wJiilc lie was
away), and at the jail had another conversation with KeiMiau,
in which Avitness expressed apprehensions that Kilev woiild he
captured and Avould turn state's evidence, and put tin? Avitiicss
into the thii\g as deep as any of them, to v.'liicli Keciian i'e])li('(l,
" You are always troul)ling yourself about that revolvei'; Ililey
never Avill weaken, liiley will never say anything." ( )n cross-
examination this Avitness said he was still under indictment for
receiving stolen property and for biwglary.

There Avas no other evidence introduced by the i)ros(H'ution
tending in any Avay to connect Keenan with this miirdcir, Tiiis
testimony, if true, presents circinnstantial evideiUM! tending
strongly to convince the mind that Keenan was the mui'dcrei",
or at least one of the party by Avhom the murder was ci>m-
mitted.

"Wallace, of Avhom llabercoi'u spoke as playing pool Avitli
him, was not called by the prosecution. I'eing called by tho
defense, he testified that he had been an em[iloye(! of the linn
of Fuller & Fuller for six years; had known the witness
Ilabercorn for about three or four years, and utjcd to be in his
saloon nearly every night ; that on the night of the murder
(November 12, 187D) he played pool in Ilabercorn's saloon, and
it must have been along towards midnight before he left, and

KEENAN r. TEE PEOPLE.

439

mn'

that he does not remember of seeing Keenan there that night ;
that he supposes if lie had come up and spoken to Ilabercorn
he woukl have seen liim, but might not remember it. If there
had been (puirreling he would remember it. If Keenan had
interrupted the game to borroAv a revolver of Ilabercorn, and
soon after again interrupted the game to get a bottle of ■\vhislcy,
it is likely it would have attracted his attention, — but he saw
no such thing as that. Witness said his memory was not very
good.

Keenan testifies, in his own behalf, that he had known
Ilabercorn some eight months before the date of this murder;
thai lie spent much time at his saloon; that he knew Conners
and Kilcy, and associated with them; had roomed awhile with
Kilcy, and had been with them at Ilabercorn's ; tha't he saw
Ilabercorn on the 11th and 12th of N^ovember, 1ST9, — on the
12tli in the forenoon and also about 4 or 5 o'clock in the after-
noon, — and that he was again .it the saloon and saw him there
about 1(» o'clock on the morning of the 14th of Xovembcr,
shortly before he was arrested on the bridge, but he sweai's ho
was not at that saloon on the evening of the 12th in company
with Kilcy and Connei's; that Ilabercorn never lent to him a
rcvol'.er in his life; that he met Ilabercorn often while they
were in jail at the same time; that lit had sent notes by Ilaber-
corn to other fellows around the jail when Keenan was con-
(incd ill his cell and Ilabercorn was working in the halls; that
he never saw the notes read in evidence until they were pro-
duced on the trial ; that he never wrote such a thing in his life;
that the handwriting of the notes is not his, although in some
respects it is like his writing, but something different; that he
never wrote tl:em or gave them to Ilabercorn; that he did
giv(; Ilabercorn his clothes, and may have given him a note
with them; that ho had given him a note about a burglary,—
the Finiger matter, — and he thinks the end of it was ''good
l)ye." It was that burglary to which he (witness) had pleaded
guilty, and he did so to keep Ilabercorn out of trouble; that
Ilabercorn and others were with him when that burglary was
committed on tho 11th of Xovember, 1870; that it is true
Ilabercorn brought to him his clothes after the return of wit-
ness from the penitentiary, but nothing was said about the
Ilensloy murder, and that he does not know where Riley or
Conners is.

AIMERICAN CRIMINAL REPORTS.

Keenan also testified that in the afternoon of the 12th oi
November, 1879, at about 4 or 5 o'clock, he left Ilabercorn's
saloon and went to the corner of Kinzio street and Westein
avenue, and between G and 7 o'clock heboiu'ded a freight train
and went to Oak Park, a station about nine miles Avest <n
Chicago, getting there about 10 or 11 o'clock at night; that
tlu'ce other men (whose names he gives) were with him ; that
tliey went out there for the purpose of committing a burglary
upon a house about a mile and a half south of that station ;
that on arriving in front of the house they made no attempt
to enter, because of the barking of a fierce dog on the prom-
ises, and because there was a light burning in a windo\v on
one side of the house, and so the}' loitered about awhile and
then returned to Chicago. On their return, after reachin<>-
Oak Park, they cauglit a f roiglit train there. It was moving
slowly, and they got on about 4 o'clock on the morning of the
13th; that they went into a freight car through the end doors,
between the cars; that that car was not em})ty, but contained
some stove-pipe and some bales or bundles of some kind, con-
taining something soft, it a[)[)eared like; it was dark in tlu>
car; they staid in the car till it readied (Miicago, about (! or 7
o'cloclc in tl»e morning (it was about dayliglit), and they got
f»ff on Kinzic street, west of Western avenue, and that al'tci'
getting off tluit train that morning, he, Keenan, came d jwii
on Ilalstead street, near Jackson, and there got his breaklast.
The Avitness also testified that he loitered aliout tlie city
through the dav of tlie l-'Uli, and or that nljAit lie lod-icd at
his own room on Harrison street, coming in about S or !'
o'clock, and that on the 1-ttli, about noon, Avhen ciossing the
river, going oast, he was ai-rosted on the bridge, and aCtci-u
few days' confinemont at the station was coinmittod to jail upon
two charges of burglary, and has been a pj'isoner ever since.

In corroboration of Koenan's story as to his whoroabouts on
the night of the 12th and the nioi-ning of the l.'Uluthe tiaic
of the mui'der), he produced crodiblci witnesses, oni[)ioyeos ol
the railroad coni[)any, who testified, in substance, that freight
trains did pass on the railroad leading fi'om Chicago to Oak
Park, towards Oak Park, on the night of iho, I'ith, and returned
to Chicago through Oak Park on the morning of the l"th
about the time indicated bv his testimony; and by other wit-
nesses, that about one and a half miles south of Oak i'ark, on

KEENAN V. THE PEOPLE.

the roadside, tliere Avas at that time a house occupied by a
family, and that at that ])hice there was then kept alierco dog,
mucli yiveu to barking in a threatening manner at niglit; and
that at tiiat time there was an invalid in that family whoso
Avants rctpiired attention frequently through the night, and
that it was the custom on such occasions to have a light iu the
room occM[)iod by the invalid.

To fiirtlier corroborate this story of Iveenan, Mr. Birdsall, a
clerk in the freight department of the company oi>crating the
railroad in quosiion, testilied that in June or July, 1881, the
attorney employed in Keenan's defense called upon him with
a memuraiulum, and at his request witness examined the
record to ascertain the contents of the freight cars which came
in through Oak Park on the train indicated on the morning of
November 10, ISTi', and that to do so he had to search books
of that year wliich had been ])ut away for safe-keeping; that
on examination it was fountl tiiat a freight car, lunnbered
r)(!l4, of that train contained, among other freight, twenty-
eight biigs <if rags and a lotot" household goods and stove-pi])e,
and that no other car of that train contained I'ags or stove-
pipe. On ('■•OSS-examination he said rags were a very conunon
article of transportaticm. Such freight comes on nearly every
train, and slove-pipe is freipiently an article of transportation
of tliat I'oad. Mv. Jh-inkerlioil', the local freight agent, and
.Mr. Waite, tlie tally clerk, gave testimony showing the same
thing. It was also shown, on examination of Mr. JJirdsall,
tiiat there are at least two books in which the record of the
contents of ari'iviug cars are kej)t; that oiu^ of those is called
the delivery book, and that this book was kei)t in the delivery
ollice, accessible to almost anybody wishing to examine it, and
geneially oi)en to the public for inspection.

To show that Keenan did not return that morning from Oak
Park in car number "MJU, and that his story and its corrobora-
tioiv were manufactured, the ])i'osecution called Charles IJoe-
decUei', who, in Novend)er, I87t), was night watchumn aiul
switchman at Tark station, which is a short distance further
east than Western avenue, where Keenan says he got off the
ti-ain on tiio morning of the loth, and Frank C. AVaite, the
custodian of the seal record kept at the State street station, which
is some two mll^.,- jVu'ther east than Park station, and Mr.

442

AMERICAN CRIMINAL REPORTS.

Brinkerhoff, the local freight agent at Chicago, who, after au
examination of the seal I'ecords of the company, testified, in
substance, that the railroad company had at that time, and
now, a mode of scaling the do<>rs of freight cars in such a
manner that, in their opinion, the door so sealed could not be
opened and closed again Avithout ^naking the violation of the
seal apparent to an inspector, and also showing that the cars
of the train which brought in on that morning this car num-
ber 5G14 were duly inspected at Park station, and also at the
station on State street, and the result of the inspection then
and there Avas entered on their seal records, and that from
those seal records it appeared that both at Park station and at
the State street station, the end doors of the car numbored
5014 Avere both scaled Avith a tin strip, in the manner described
by the Avitnesscs, and that the seals Avere on the doors on both
ends of the car in good order on the arrival of the train at
both of these stations.

On this evidence it became absolutely necessary tliat the
jury should determine Avhothcr Ifabercorn or Kconan had
spoken the truth in tlie matters Avherein their testimony is at
variance. The jurv found tlie prisoner guilty, and thereby nec-
essarily found that his (Keenan's) story of his trip to Oiik
Park Avas manufactured and false. It cannot be known that
they would have so found in the absence of the testimony <jf
the three Avitnesses, Birdsall, Waite and Brinkerliolf, sliowing
that they all Avere familiar Avith this mode of sealing cars, and
that, in their opinion, the sealing was of sucli a character that
the car could not be opened and closed Avitiiout making tlio
A'iolation of the seal ])lain to the ins[)octor. This evicU'uce, it"
correct, seems most forcibly to lead to the belief that Keenan's
story in tliis regard was false, and entirely manufactured.

After the verdict came the motion for a new triah On the
hearing of that motion allldavits Avere read of Frank C. Waite,
the employee of the railroad company who on tlie trial had testi-
lied to the security of this mode of sealing cars, and, also, of
Frank ]\rcQuaid, a friend of Keenan, showing that after the
trial, and on the 8th of September, 18S1, JVIcCjuaid Avent Avith
]\rr. Sturck, one of Keenan's attorneys, and e.xperimented upon
cars fastened and sealed precisely as Avas car 5(514 when it came
into Chicago on tlie morning of the 13th of November, 187t),

KEENAN V. THE PEOPLE,

443

and found that the same could be opened and closed leaving-
the seals in apparent good order. Tlicse affidavits also show
that like experiments wei'e made by Mr. Waite in tlie pi'csenco '
of Mr. Shiunan, Mr. Storck and other gentlemen, Avitli like re-
sult, and Mr. AVaite swears that by such demonstrations he
ascertained tliat "it is an easy thing to open the end window
or door of a box freight car which is secured or fastened with
a tin seal," as described, " without breaking or in any way in-
juring or imi)airing the seal," and that a car door of tliis kind
sealed in tliat way can easily bo opened and the car entered,
and after coming out the door can be closed witliout injmy to
the seal, or showing to an inspector in any way tiiat the car
hiis been opened, unless ho actunlly tried the door or window.
Mr. Waito swears tluit lie is familiar with this mode of fasten-
ing, and understands what he is speaking about, and tluit if a
new trial l)e gi'anted he will so testify.

Tlio affidavit of an expert was also presented, tending to
sliow that the notes i)ro(luce(l as i>iven to Ilabercorn bv Keenan
in tli<^ jail are probably forgeries, and not in the handwriting
of Keenan.

Xotliing Avas presented on the hearing of the motion tending
to break the force of tliese alKiUivits, and no reason is sng-
gested why tliey are not entitled to belief. The trutliiulness
of Waite is conceded by the prosecution, wlio produced liim as
a witness. If it be not true that tliese seaknl cars can be thus
opened without detection in that way, it is a fact easy of proof,
"We must believe it is true. If this be so, it is plain that Kee-
nan (lid not have a fair trial before that jury. Ilis story had
at the trial to bo Aveighod against that of Ilabercorn by the
jury, Avhile under the belief that it Avas impossible that this car
could have been opened and closed in the Avay he stated Avith-
out immediate discoA'ery of the fact that the car had been
oponed. This of itself Avas decisive against the trutli of liis story.

The motion for a neAV trial ought to have been granted. It
Avas error to deny it. For this error the judgment of convic-
tion is reversed, and the cause renuuuled for a new trial.

Jvdijment reversed.

Walker, Sueloox and Scuolfield, JJ., dissent.

Note. — Tlio decision in the aliovo v\wv will coninicnd itself to the pinfes-
sion 08 eminently just under its own peculiar circumstances. The witness,

U4:

AMERICAN CRI5IINAL REPORTS.

on the trial of the cause, testified to a conclusion which he himself believed
to he true, derived from his daily observations in the usual and ordinary
course of his busineas. He had not experimented as to whether the car
doors could be opened without appreciable injuiy to the seals, and in this
respect the case ditlers from tlie one wherein a witness would make affidavit
that he had knowingly testified falsely upon the trial.

See the following recent cases wliich sustain the views expressed in the
nia.jniity ojtinion: Ileskeiv v. The f^'ate, 14 Tex. App., COO; 'The State v. Uui--
tis, 77 Mo,, 207.

State v. Dame.

(CO N. H., 479.)

Nuisa;;ce : Disorderly house — Character of its frequenters.

1. Nlisance — Immatkuial AVKiniENT. — It is necessary to prove mattm- of

descripti«m only where the averment, of which the descriptive matter
forms a part, is material.

2. Same — Dis()Ri>KRi,v housk — Chauacteu ov those who frequent it.—

The indictment being for keeiniig a disorderly house, an aveniicnt
therein that " in the sjiid house c<'rtiiin evil-disposed jiersons, as well
men as women of evil Jiame, lame and conversation, to eonu' together,"
etc., is immaterial — miglit be rejected as sur^jlusaye, and it was, lliere-
fore, uimecess^uy to prove it.

Cojxiand t5 Edtjerhj, lor tlie di'tVtuliuit.

I'ke Attovney-Gcnert'l and Solicitor, for the state.

Stanley, J. Tlie validity of the defendant's exception de-
pends on \\'Iietlier there was a variance between the alleviations
in the indictment and the proof. The iiHlictnient was for
keeping jt disoiderly lioiise; and it contained an avernient lliat
'"in the said lioii.se certain evil-disposed [x-i'sons, as wel' men
as women, of evil name, fam(> and conveisatioii. to coitic to-
gether, did caTise and procure, and the said ]»cinoiis in the said
lionse, at unlawful times, as well in the night as in tiic day. on
the days and times aforesaid, there to lie and remain, drinlvini;.
ti[)pling, cursing, swearing, «]uarreling and otherwise iiiisheiiav-
ing themselves unlawfully, did permit and suH'er." If lliis
averment was unnecessary, the reipiest was [tropei'ly rel'iiscd.
It is necessary to prove matter of d('scri})tion only when the
averment, of which the descriptive matter forms a part, is
material. Bish. Cr. Prac. sees. 4S4, IST; Stat)' r. (ojip, V> N.
ir., 212; State e. Ballr,/, ;31 X. H., r>21; AV.r >'. .)/,/>/, I Doug,,
193; Hex v. rij>pctf, IT. R, 2?,r>.

STATE V. DAME.

445

Ecjccting tho averment recited, and the indictment charges,
with proper allegations of time and place, tlic keoj)ing of a dis-
orderly lionso, to the great injury and common nuisance of all
tlie peaccal)]e citizens of tho state there residing, inliahiting and
passing, contniry to the statute, etc. The olfcnse is keei)ing a
disorderly house. The allegation rejected is of facts which go
to show that tho general cliarge is well founded, or, in other
words, a statement of the evidence upon which tho charge is
based. Hawkins says that "an indictment chiii'ging a man
witli a nuisance in respect of a fact Avliich is lawful in itself, as
the ei'ecting of an inn, etc., and only becomes unlawful from
the particular circumstances, is insuUicient, nnless it sot forth
some circumstances which make it unlawrul in its own nature,
as keeping a bawdy house. 2 Hawk. P. C. (ed. 1824), 311. It
is no more necessary to allege the facts which go to show it to
bo a disorderly house, than it is to allege who are disturbed
thereby, and this, it is said, is unnecessary. ICinfj v. P('oj)/e, S3
N. Y., 587. In tho case of a common scold, it is not necessary
to prove the expressions used. It is sutlicient to pi'ovo generalh^
that she is always scolding. J'Anmii i\ Stiuirt, 1 T. II., 748,
7r)4: Rexv. ^';//,"Russ. & U., 431; Clavhv. IW!a/>}, 2 Atlc, 330;

1 IJuss. Cr., 43(1; J?ex v. Rof/icr, 1 B. & C, 272; l^ex r. Bivon,
10 Mod., 32(1; L\'.v v. Mason, 1 Leach (4th ed.), 487, 401, 403;

2 Hawk. P. C, ch. 25, sec. 50; Dav. Prec. Ind., 140, 108; Shtto
r. BaUrij, 21 X. IT., 343; !^t<tfe v. Peh'oo, 43 X. II., 270; State
v. Do'C'-r.-t, 45 X. II., 543, 515. The indictment is sulHcient if
it set out so much of fact as to make the criminal nature of
what is charged against the defendant ap[)ear. If the thing
against which the indictm<>nt is aimed is not a nuisance in itself,
but becomes so only by reason of particular circumstances, this
special matier must 1h» shown (2 Pish. C. L., sec. 813^ but tho
n\\) is otherwise if the thing is m itself a nuisance. The avcr-
ni(H\t referred to might have been rejected as surplusage. It
was, Iheri'foro, not necessary to prove it.

Judgment on the verdict.

Tt.AKK, .1,, did not sit; tho others concurred.

N'vnK, — Kvidonoe of general n^putation of a house is admissible as tending
to show the fact that it is kept as a bawdy house. The Territory v. Stone,
2 Dftk., 155.

44C

AMERICAN CRIMINAL REPORTS.

In rb Rolfs, Petitioner.

(30 Kan., 738.)

Nuisance : Ordinance — Habeas corpus — Trial by jury — Appeal.

1. The police judge of the city of Leavenworth has exclusive jurisdittion

over all oiTcnses against the city ordinances, and the city 1ms iK)\vor to
jninish them by fine, imprisonment, or lal)or on the streets.

2. The keeping of a hog-peii may bo a nuisance, and as such a violation of

the criminal law, and punishable under the statute.

3. Wliere a party is held under process issued upon any final judgment of a

court of competent jurisdiction, the inquiry in habeas corpus is limited
to the validity «f the judgment, or to the question whetlter it is stayed
or has spent its force; more irregularities will not justifj' a di.schoi-ge.

4. The legislature cannot deprive a party of his right to a ti'ial by jury, in a

criminal charge, before a jtistice of the peace. Such trial must be given
cither there or on appeal, the constitution guarantying a trial by jury
in all prosecutions,

5. There Ixiing no specific provision in the charter of the city of Leaven-

worth concerning appeals, where the fine is $20 or less, such right may
be foimd under the laws regulating the proceedings in justices' coiu-ts in
criminal cases, and the petitioner is entitled to his appeal in this ca.se
upon filing a proper bond.
C. The appeal being formally denied by the police judge, the failure to fur-
nisli the bond should not i>rejudice the petitioner, if he supply the omis-
sion promptly.

At Chambers.

77. T. Green and W. Green, for petitioner.
il/. 3nies Moore, for respondent.

Brkwer, J. This is an application in habeas corpus brought
by the petitioner, alleging that he is illegally restrained by one
W. D. Shallcross, marshal of the city of Leavenworth. The
respondent returns that he holds the petitioner in custody by
virtue of a commitment issued by the police judge of the city
of Leavenworth, reciting u conviction of the petitioner on a
charge of locating and maintaining a nuisance, and a sentence
to pay a fine of $10 and costs. Upon tlie heai'ing before nic,
the facts of the case have been fully developed, and a nuinbor
of (picstions presented and argued. As a sulKcient statoment
of the fact.?, it may be siiid that the petitioner was brouglit
befoi'e the police judge on a charge of locating and maintuiu-
ing a nuisance, the particular nuisance complained of being a

IN RE ROLFS, PETITIONER.

447

hog-pcn ; that upon the calling of the case for trial he challenged
the surticicncy of the complaint, which challenge was overruled.
He entered a plea of not guilty and demanded a trial by jury,
which demand was also refused. The case was tried before
the police judge, and the petitioner found guilty and sentenccil
to pay a fine of $10 and costs. All these facts appear on tlie
docket of the police judge. A commitment was issued on the
sentence to the city marslial, who placed the petitioner in
the city jail, and has since compelled him to work on the pub-
lic streets. Immediately after the conviction the petitioner de-
manded an appeal to the district court, which was refused
during the same day. For the purpose of prosecuting pro-
ceedings in error in the district court, he tendered a bond to the
police judge, ■with sufficient securities, which bond the police
judge declined to receive or approve, or in any manner to stay
the o]ieration of the sentence. This states all the facts nec-
essary to present the questions discussed by counsel, and in
reference to many of them I have little doubt, and shall simply
state, in a word, the propositions which I think dispose of those
questions:

1. Wliere a party is held under process, issued upon any final
judgment of a court of competent jurisdiction, the incpiiry in
habeas corpus is limited to the question, was the judgment void,
or has it been stayed, stqierseded, or otlierwise spent its force.
No mere errors or irregularities in the proceedings will justify
a discharge. Code Civil Proc, § 071, par. 2; E.v parte Pltil-
lips, 7 Kan., 4S; Ex parte Nije, 8 Kan., 100; In re Scrafonl, 21
Kan., 735; In re Pettij, 22 Kan., 477; In re GohhmUh, 24 Kan.,
757.

2. The police judge lias exclusive original juris:liction over
all offenses against the ordinances of the city. Citv Charter,
§51.

3. The ci'v has power to punish any criminal violation of its
ordinances ly line, conlinement in the city prison, or lal)or on
the streets. Chapter 17, ^§ 417, 418, 410, Dassler and Shafer's
Compilation of City Ordinances, i;]2. These sections are within
the powers conferred by article 3, § 11, par. 37, of the act in-
corporating cities of the first class, passed in 1S81, and amended
by chapter 34, Laws 1SS;>, and do not trespass upon any con-
stitutional provision. For it is undoubted that the legislature

AMERICAN CRIMINAL REPORTS.

may punish any criminal violation of its statutes by confine-
ment and hard labor, and may likewise delegate to municipal
corporations similar powei's in reference to violation of their
ordinances. 1 Dill. Mun. Corp. (3d ed.), §§ 411, 428, Avith au-
thorities cited in the notes.

4. The keeping of a hog-pen may be a nuisance, and, as such,
a violation of criminal law; one which was punishable as a
nuisance at the common law, and is punishable under our stat-
utes. Steph. K P., §§ 2350, 2303; City Charter, § 11, par. 11.

5, Said paragra]>h 11 authorizes the city council " to make
regulations to secure the general health of the city; to prevent
and remove nuisances; and to make, prescribe and enforce
regulations for the clearing and kee[)ing in order of all
slaughter-houses, ... or other places where offensive
matter is kept or permitted to accumulate." Under this grant
of power the city council may ]>rovide for punishment by fine
and imprisonment of any party guilty of a nuisance, which,
like the keej)ing of a hog-pon, may bo dangerous to the public
health. 1 Dill. :N[un. Corp. (3d ed.), §§ 375, 370, and cases cited
in the notes.

Passing by these general propositions, which, to my mind,
are clear, and which dispose of many of ttio questions dis-
cussed by counsel, I come to the only matter Avhich presents
any dilficult}' or causes me any embarrassment. That question
may be thus stated : The constitution, in its bill of righlf? (soctioii
5), provides that "the right of trial by jury shall be inviolate,"
and section 10, that "in all prosecutions the accused shall be
allowed to appear and defend in person or by counsel; to de-
mand the nature and cause of the accusation against him; to
meet the witnesses face to face; and to have conpulsory proc
ess to compel the attendance of witnesses in his behalf; and
a speedy public trial by an impartial jur}' of the county or
district in Avhich the offense is alleged to have been committed."
Again, the maintaining of a public nuisance, Avhich is of a
character to endanger the public health, is a criminal act, and
a prosecution therefor is a prosecution for a criminal olfense,
and not a proceeding to collect a debt or enforcement of a
mere municipal regulation, and therefore is to be controlled by
the ordinary rules concerning criminal prosecutions. ]Veif.~> I-
V. Concordia, 14 Kan., 4GG. Again, the city charter, sec. 53,

IN RE ROLFS, PETITIONER.

449

authorizes summary trials by the police judge, without a jury,
of all violations of city ordinances, and by section 00 denies
an appeal unless the fine assessed exceeds $20, or the imprison-
ment one month. ITence, the petitioner having been lined
only $10, has, notwithstanding his demand for a public trial
by an impartial jury of the district, been convicted of a crim-
inal offense and punished in defiance of the constitutional
guaranty. Can such a judgment be sustained ? Was he con-
stitutionally entitled to a jury? If so, was the deprivation of
tliis constitutional right a mere irrefjularitv, which did not
avoid the judgment, and is not subject to review in haheas cor-
pus? In the case of C/fi/ of Fmpoi'id v. Volmer, 12 Kan., 022,
it was held by the supreme court that a summary trial without
a jury, in a municipal court, could be sustained if the defend-
ant lia<l an appeal, clogged by no unreasonable restrictions, to
an iippcllivte court in which he had a right of trial l)y jury.
That is as far as the decisions in this state have gone. Hut the
diiim is now made that a piirty may be subjected to a summary
trial before a police judge for a violation of a city ordinance
involving an act of a criminal nature, without any appeal to a
liiglier coui't, and this notwithstanding the constitutional guar-
;inty of a ])ublic trial by an impartial jury of the district
where the otfenso is charged to have boon committed.

I cannot assent to this claim; and while I may not be able
in the I)rief time at my comnumd to state all the reasons which
control my judgment, I shall endeavor to state some of the
more important. The constitutional provision that the right of
trial by jury shall be inviolate is conimon to many constitu-
tions, and has received frequent interpretations. It means that
a jury trial is preserved in all cases in which it existed prior
to the adoption of the constitution. It does not extend the
right of trial by jury; it simply ])reserves it. It remains in-
violate, that is, not disturbed or limited. Where this is the
only provision, as in some constitutions, summary convictions
in petty offenses without appeal have been sustained; and this
upon the theory that at common law, or in the state prior to
the adoption of the constitution, such convictions were author-
ized. See, specially, the case of Biji't's v. Com., 42 Pa. St., 89,
in which is a very clear and foi'cible discussion of the subject
l)y Strong, J. But our constitution contains the further pro-
VoL. IV— 20

IMAGE EVALUATION
TEST TARGET (MT-3)

^-^^-41^

1.0 ^^ ^

I.I

u
lit

Photographic

Sciences

Corporation

23 WIST MAIN STRUT

WIISTIR,N.Y. 14SM

(716)S72-4S03

4>60

AMERICAN CRUHNAL REPORTS.

vision that in all pt'osccntions the accused shall be entitled to a
speedy public trial by ixn impartial jury, Kow, the Pennsyl-
vania coustitution reads that in prosecution by indictment oi-
infonnation the accused shall be entitled to a speedy publi(^
trial by an imparti.'il jury. And of similar import is the })ro-
vision in other constitutions. Obviously, thi!4 rcsti'icts the
right of jury trial to cases which at common law were prose-
cuted by indictment or information, and these, as is well
known, were offenses of the higher grade, while ordinary
petty offenvses were tried upon a simple complaint. Such a
constitutional provision is not as bi'oad as ours, which says, iv
all proHecutiotis. I know that there is to-day nuich hostih*
criticism on juries, a criticism intcnsilied by the not infrecpK^nt
failure of juries to ignore prejudice and res|)ond to the de-
mands of absolute justice. But whatever theories I may have
individually as t<» the proi)riety of jury trials, or what notions
I may have of the wisdom of the system, I may not as an
officer of the law disregard its j)Iain i>rovisions. Ifti h,f M'i'ipio
4'iit IS as to a judge the beginning and tlui end, the <tli)li<( and
omega of official duty, I find in the constitution a gnaraiity
of a jury trial hi all prosmut'ionH. That constitution is tlu;
organic law, binding upon Ic^gislaturcs and courts, ov(;rriding
all conflicting statutes, and is tlie final rule and measure of
rights and powers. Tliat wiiich a legislature? nuiy not do
directly, it may not do iudireetly. It may n(»t deprive a ])arty
charged with a criminal act of his constitutional right to have
the truth of that charge (hrtermined by an impailial jury of
the district. It could not sul>ject a party ti> trial befoiv a jus-
tice of the peace <»n a criminal diargi? witluMit a right of triiil
by jury, either there or on api)eal. No more can it authorize
a municipal coi'poration, one of its creations, to j)uuish a party
for a criminal matter witix<mt in s«)m(Mvay sec^n-ing to him a
jury trial. So long, therefore, as the fnndamental law contains
the guanmty which it do«js, I tliiidc n<» |)arty can be subje(;t<Ml
to a pr(»secution f<»r an act i/f a criminal nature, whetlier tiiat
prosecution lK>brfnight by the state tliroctly or any por|)oi'ation
created by the state, without in some way and before some
tribunal being secure<l an opportunity of having the trntli of
that charge inrpjired into by an impartial jury of the district.
A. distinction sliould bo noticed here. A prosecution which

IN RE ROLFS, PETITIONER.

451

involves nothing of a criminal nature, as, for instance, where
one is charged with acting as an auctioneer without a license,
in violation of a city ordinance (such an ordinance heing a
inere municipal rcg;dation), is not a criminal offense in the true
legal sense of the term. As to such proceedings the constitu-
tional guaranty may not be a))plicable, but where the charge
is of an act like the one at biir, criminal at counnon law,
criminal in its nature, and an offense against the public, the
constitutional guaranty is applicable;, and cannot be ignored
or disregarded,

in I Dill. Mun. Corp, (.^d ed.), § 433, the author thus clearly
states the distinction I have been sutjfjestinfl: : "One of the
(juestions which most frccpiently arises is whether the defend-
ant is entitled ♦ > a trial by jury, and the cases on this subject
cannot all be rc(!onciUMl, The general ])rinciples applicable to
its solution, however, are plain. Violations of municipal by-
laws pr(>per, such as fall within the description of municipal
police regulaticjns, as, foi' exam|)le, those concerning markets,
streets, water-works, city otllces, etc., aiul which relate to acts
and omissions that are not eud»raced in the general criminal
legislation of the state, the legislature may autliorize to be
|)rosccuted, in a summary mii.nnei', by and in the name of the
corporation, and need not i)rovide for a trial by jury. Such
acts and omissions are not crimes or misdemeanors to which
the constitutional rights of trial by jury extetul,"

And again: "Where the actor omission sought to be pun-
ished by imi)risonment under a municipal ordiiumce is in its
nature not peculiai'ly an offense against the municipality, but
rather against the public; at large, where it falls within the
l(*gal or counnon law noti(m of a Ciime or misdemeanor, and
especially where, biding of such a nature, it is emb'-aced iti the
(Viminal (^xle of the state, there the constitutional guaranties
int(in(led to siscure the lilnM-ty of the citi/.en, and the right to
a trial by jury cannot be ('vaded by the nature of the powers
vested in the municipal corporation or the nature of the juris-
diction conferred up(m the municipal courts,"

l>ut the ((uestion now occurs whether the defendant is, by
tlie statutes, denied an appeal to the district court. There is
('(M'tainly no express denial; but it is claiuunl that no appeal is
giv(uj, and, therefore, that the summary conviction before the

452

AMERICAN CRIMINAL REPORTS.

police judge is final. Section GO of the charter provides that.
" in all cases before the police judge wherein the line assessed
exceeds >y20, or the inij)risonnK'nt one month, an appeal may
be taken by the defendant." This is tlie single provision of
the charter in respect to appeals. By implication, and upon
the rule, crpressio nnius exduslo alterhifi, it is contended tlitit
an appeal in a case like the one at bar is denied, the line being
under $20. Conceding this to be a fair construction of tlio
section, if there wore notliing else toucliing on the matter, yet.
as such a construction would overthrow some of the powois
conferred by otlier sections of the charter upon tlie ])olici'
judge, and is therefore to be avoided, if })ossible, I tliinlc a way
of escape from the difficulty may be fouml witiiout resorting'
to any judicial legislation. Section 0."> provides that, "in iill
cases not specilically herein provided for, the process and |)i«)-
ceedings shall be governed b}- the laws regulating ])rooeodin^s
in justice's court in criminal cases." Now, there is no spei-ilic
provision in the city charter concerning appeals in cases wIkmc
the line is i?iio or less. They are neither, in terms, granted
nor denied. The only denial claimed is one by implication,
and from the silence of the charter. There being no spi'cilic
provision, 1 think we may fairly look to the statute concci'iiin^-
proceedings in justices' courts in criminal cases. Here we find
appeals allowed, but under somewhat ditferent conditions, and.
in that respect, establishing a dilFerent rule from that pre-
scribed by the charter in the cases to which it applies Tliat
statute controls this case, provides an appeal, and, under tlie
rule laid down in ('itij <>f Knqxn'la v. J^o/jihr, ,suj>ra, auatams
the validity of the [lowers conferred upon the police judge. I
think, therefore, without any judicial legislation, it can prop
erly be held that the petitioner was entitled to an appeal; and
ii entitled to an appeal, and if he has taken the proper st(>ps
to secure such a[>peal, the judgment and sentence must be held
to have been vacated, and he thereaftei" hn properly held in
custody. It is true the testimony fails to show that an a))|ieiil
bond was tendered within time, but, as an apjieal was foi'ni.illy
denied by the police judge, I think the petitioner should not
be prejudiced l>y such omission, jn-oviding one be tcn«lei'ed
immediately. My conclusion, therefore, is that the petitioner
IS entitled to a discharge, upon tendering an appeal bond, with

THE PEOPLE V. MULLER. 45?,

suflBcient securities, conditioned according to the requirements
of the justices' act in criminal cases.

Tlie conclusion which I have announced has been readied
with some embarrassment and considerable doubt, and if tlie
city desires to have the opinion of my associates on the supreme
bench, the (piestion will be reserved for their consideration at
tiie ensuing September term, and the case continued for final
(irder until after its adjournment; the petitioner in the mean
time being- required to give his personal recognizance to appear
at such time and abide the further order.

The Pkople v. Muller.

(9G N. Y., 408.)
Obscene literatukr : Evidence — Experts.

1. Expert testimony not admissible, etc.— On the trial of an indictment

uiiiliT tlio clause of the Penal Code wliich makes the selling, loaninp;.
j^ivin^ away or showing of an ohscene or indecent book, writing, pict-
ure or i»liotograi)h a misdemeanor, the question of obscenity or inde-
cency is one that falls within the range of ordinary intelligence, and
does not rerniire the testimony of an expert in literature or art.

2. Same. — On the trial of an indictment for selling obscene and indecent

photographs, the defendant called as a witness an artist, and asked him
wiiether there is a distinguishing line, as understood by artists, between
pure and obscene and indecent art. Tliis was objected to and excluded.
IMd, no error. If the qui'stion was intended simply to bring out the
fact that pictures might be either decent or indecent, and tiiat the canons
of jiuro art would accept tlioso of one class and reject the others, it was
properlj' rejected an an attempt to prove a self-evident proposition; but
if the (piestion was intended to be followed by proof that, according to
the artist's standanl, the photograplis w^ere not obscene or indecent, it
was propi'rly rejected, aa such proof was incompetent. It was likewise
held tliat tiio intent of tlie defendant in selling the ph()tograi»hs was
not an element in determining his guilt, and that therefore evidence of
intent was incompetent.

Ai»pcul fr(jm judgment of tlie General Term of the Supreme
Court.

John D, Toicnxond, for appellant.
John Vincent, for respondent.

AxDHKWs, J. Tbe first count in the indictment charges the
defendant with selling indecent and obscene photograplis, rep-

154

AMERICAN CRIMINAL REPORTS.

resenting nude females in lewd, obscene, indecent, scandalous
and lajcivious attitudes and postures, and in the second count
charges him with having in his ])ossession divers lewd, scandal-
ous, obscene and indecent photogra])hs of the same chaiactor,
with intent to sell the same. Section 317 of the Penal (Jodo
declares, among other things, that a person who sells, lends,
gives away, or offers to give away, or shows, or has in his pos-
session with intent to sell or give away, or to show, or adver-
tises, or otherwise offers for loan, gift, sale or distribution, an
obscene or indecent bock, writing, paper, picture, drawing oi-
photograph, is guilty of a misdemeanor. The evidence on the
trial in support of the indictment related to nine photographs
produced before the jury, which were proved to have boon
sold by the defendant in the onfinary course of his employ-
ment as a clerk in a store for the sale of books, pictures and
])hotographs, in the city of New York. The record ctjntiiins
no special description of the photographs, except that it ap-
pears that they represented nude females, and were j)h()t<)
gra])hic copies of painting's which had been exhibited in tiu!
salon in Paris, and one of them at the centennial exhibition in
Philadelphia, and that among them were pictures »lesignat(!!l
'•La Asphyxie," "After the liath,"' and "La IJaigneuse."

The jury by their verdict of guilty necessarily found tliut
the photographs were obscene and ind 'cnt. The exliil)its
were produced on the argument of the apj-eal at the general
term, and the court in its o})inion expressed its concurn'iKu!
with the linding of the jury, saying that they might very W(^ll
have found that the photographs were both indecent and oh
scene. They were not ])ro(luced in this court, and we aro
unable to pass uymn the (piestion of their obscenity or indc
cenoy from an inspection of tlio pictures themselves.

If the defendant's counsel desired to insist in this coui't that,
the photograplis were not in fact indecent or obscene, and that
tiiis a])poared from the photographs themselves, and that the
finding of the jury was thei'cfore without evidencie to su|)i)urt
it, it was his duty to have furnished them as a ])art of tlui
record, or to have insiste;l upon their production by the dis
triet attorney. Upon the case as presented wo must assume
that the pictures were of the character described in the indict-
ment.

But exceptions were taken by the defendant on the trial

THE PEOPLE V. MULLER.

455

which render it necessary to consider to some extent the
scope of tiie statute, the method of tryin;:^- the issue of obscen-
ity and indecency, and the relevancy of proof of an innocent
intent on the i)art of a defendant changed with a viohition of
the statute. It is to be observed tliat tlic statute does not un-
dei'take to define obseene or inck^cent pictures or publications.
liut tlie words used in the statute are themselves descri[)tive.
They are words in common use, and every person of ordinary
intelli<j;enco understands their meaning, and readily, and in
most cases accurat<^ly, ap[)lies them to any object or thing
brought to his attention which involves a judgment as to the
(juality indicated. It does not retpiire an e::port in art or lit-
erature to determine whether a picture is obscene, or whether
printed woi'ds are olfensive to decency and good morals. These
arc matters whicli fall within the range of ordinary intelli-
g(Mice, and a jury tioos not re(piire to be informed by an expert
l)ofore pronouncing upon them. It is evident that mere nudity
in painting or sculpture is not obscenity. Some of the great
works in painting and sculpture, as all know, rejjresent nude
human forms. It is a false delicacy and mere prudery which
would condemn and banish from sight all such objects as ob-
scene, sim])ly on account of their nudity. If the test of ob-
scenity or indecency in a ])icturo or statue is its capability of
suggesting impure thoughts, then indeed all sucli representa-
tions might be cousidercMl as indecent or obscene. The presence
of a woman of the purest character and of the most modest
behavior and bearing may suggest to a prurient imagination
images of lust, and excite impure desires, and so nniy a picture
or statue not in fact indecent or obscene.

The test of an obscene book w\is stated in Rerjind v. WcJdin,
ii. II., 15 Q. I*., .'5(50, to be, whether the tendency of the matter
charged as obscenity is to deprave or corrupt those whose
minds are o[)en to such immoral influences, and who might
come into contact with it. We think it would also be a proper
test of obscenity in a painting or statue, whether the motive of
the })ainting or statue, so to speak, as indicated by it, is pure or
impun;, whether it is naturally calculated to excite in a spectator
iinpui'o imaginations, and whether the other incidents and
(pialities, however attractive, were merely accessory to this as
the primary or main purposes of the representation.

456

AMERICAN CRIMINAL REPORTS.

The defendant, on tlie trial, called as witnesses an artist Wlio
had practiced painting for many years, and also a person who
had been engaged in the study of ai*t. Tliey Avere asked by
defendant's counsel Avhether there was a distinguishing line, as
understood by artists, between pure art and obscene and inde-
cent art. The question was objected to by the prosecutor and
excluded by the court.

The issue to be tried was whether the particular photographs
in question were obscene or indecent. The <lefendant was
entitled to i)rove in his defense any facts legitimately bearing
upon this issue.

The fact that tlie original pictures of which the photographs
were copies had been exhibited in the salon in Paris was ad-
mitted by the |)rosecuti()n, and it was ]>roved that one of them
had been publicly exhibited in Phihuleli)liia.

But this did not, as matter of law, exclude a linding by the
jury that the photograplis were obscene and indecent. It is
not impossible, certainly, that the public exhibition of indecent
pictures may have been permitted in Paris or Philadelphia, and
the fact that a picture had been publicly exhibited would not
necessarily determine its character as decent or indecent. In-
deed there is but little scope for proof bearing u])on the issue
of decency or t)l)acenity, beyond the evidence furnished bj' the
picture itself. The question which was excluded, if intended
to bring out the fact that pictures might be either decent or
indecent, and that the canons of pure art would accept those
of one class and reject those of the other, was proj)erly ovef-
ruled as an attempt to prove a self-evident proposition. If the
(piestion was intended to be followed by proof that, according
to the standard of judgment atlopted anil recognized by artists,
the photogi'aphs in question were noi. obscen<i or indecent, it
was ])roperly rejected, for the reason that the issue was not
whether, in the opinion of witnesses, or of a class of people,
the photographs were indecent or obscene, but whether they
Avere so in fact; and upon this issue witnesses could neither be
permitted to give their own opinions, or to state the aggregate
opinion of a particular cl.iss or part of the community. To
permit such evidence would i)ut the witness in the i>laco of the
jury, and the latter would have no function to discharge. The
testimony of experts is not admissible upon matters of jutlg-

TUE PEOPLE V. 3IULLER.

467

ment within the knowledge and experience of ordinary jury-
men. 1 Greenl. Ev., 440. Tlie question wlictlier a picture or
writing is obscene is one of the plainest that can be presented
to a jury, and. under the guidance of a discreet judge there is
little danger of their reaching a wrong conclusion. The opin-
ions of witnesses would not aid the jury in reaching a conclu-
sion, and their admission would contravene the general rule
that facts and not opinions are to be given in evidence.

The defendant's counsel at the conclusion of tlie evidence
made several requests to charge, which were denied by the trial
judge. The leading purpose of those requests was to induce
the court to lay down the rule that the intent of a defendant
in selling a picture claimed to be indecent and obscene is an
important element in determining his guilt. The statute makes
tlie selling of an obscene and indecent picture a misdemeanor.
There is no exception by reason of any special intent in mak-
ing the sale. The object of the statute was to sup[)ress the
ti'utfic in obscene publications, and to pi'otect the community
against tlie contamination and pollution arising from their ex-
hibition and distribution. It would, Ave conceive, be no answer
to an indictment under the statute for the sale of an obscene
picture, that it was sold to a person not liable to be injured by
it, or that it was a picture, in respect to execution, of dis-
tinguished merit. In Jicf/ina v. Jllcldln, siqn'a, the question
was whether a curtain book was obscene and liable to seizure
for that reason under an English statute. It ai)peared that it
was i)ublished to expose the alleged immoralities of private
confession in the Roman Catholic church. But the court hav-
ing found that passages purporting to be extracts from the
\vritings of Iloman Catholics were obscene in fact, it was held
that the intent of the publication, however innocent, was no
answer to the proceeding.

We do not doubt that whether a publication is obscene or
not may in some cases depend on circumstances. For example,
a medical book for the instruction of medical men may con-
tain illustrations suitable and proper as a part of the work, but
which, if detached and published alone for circulation, might
be deemed indecent within the statute. In the present case
there was no evidence to which the requests to charge were
applicable. The pictures in question were kept for general

458

AMERICAN CRIMINAL REPORTS.

sale, except tliat thoy were not sold to boys undor twenty -one
years of a',^o. The requests, as applied to the cas(\ were ji
series of abstract propositions having no relation to the issii(\
and Avere on that ground, independently of any other consid-
eration, pro})erly denied. We find no error in the recoi-d.
Tlie case seems to have been fairly tried, and was submitted to
the jury in a careful charge, and with the verdict of the jurv
this court cannot interfere. The statute is an important one.
and while it should have a reasonable, and not a sti-ained, con-
struction, at tlie same time it ought to have such a jn'actical
interj)retation by the court and jury as will subserve the im-
portant purpose of its enactment.

The judgment should be alllrmcd.

All concur.

Juclfjmcnt affirmed.

State v. BurrrAix.

(89N. C, 571.)

Ordinance: Toinis and cities — lidailing.

1. Town ordinancos must be subordinate to and harmonize with the f;oii-

eral law of the state,unless special ix)wers ai'e conferred upon tlie town
by its charter.

2. Therefore, in the absence of special authority over the subject, it mtx

held that an ordinance prohibiting the sale of liquor within the cdrpo-
rate limits of a town is void, as the general law allows retailing upon
obtaining license.

Attomeij-GciK'ral, for the state.
Mr. J. C. L. llarr'tH^ for defendant.

IMkukimox, J. .Municipal ordinances and by-laws must al-
ways be subordinate to and harmoni/.e with the genei-nl laws
of the state, unless in cases where special powers are conferred
upon the municipality to pass ordinances inconsistent with the
general law. Nor can numicij)alities, by ordinances, create
offenses known to the general laws of the state, and provide
for the punishment of the same, unless they have s|)ecial au-
thority so to provide, conferi-ed either by some general or
special statute. Hence, when an offense is indictable in the

STATE V. BRIITAIN.

459

superior court, a city or town ordinance, making the same act,
or substiiiitially tiio same act, an offense punisluible by lino or
imprisonniont, sucli ordinance is void. It may bo tliat the
legislature lias power to authorize a town to make an offense
against the state a separate offense against the town, but this
could bo done only by an express grant of authority. Towtt
of WasliliKjtoii V. IIavimo)t(l, 70 N. C, y;>; State v. Lamjston,
88 N. C, (;!J2.

The statutes of this state make it indictable to soil spirituous
licpiors by a measure less than a (piart witiiout Jirst having ob-
tained a license so to do. The Code, g^ 107(5, 15701. These
statutes embrace and apply to "the town of Henderson ville."

It ai)i)ears from the record that that town has an onlinance
that prohibits, within its corporate limits, the sale of "spiritu-
ous, vinous aiul malt li(piors;" declares such a sale a imlsance^
and that all |)(>rsons offending against it shall be punished by
a fine, or imprisoned in the town prison.

Now, "the town of Henderson ville" has no special power
conferred upon it by law to prohibit the sale of liquors; it
cannot do so, certainly, as to retailing spirituous liquors by a
measure less than a (piart, by virtue of its general powers, be-
cause the general laws of the state have provided that persons
may so retail there, lirst having obtained a license so to do,
and made it indictable to retail without a license.

The ordinance in question, first, prohibits a business allowed
and I'egulated by the general law of the state; secondly, it
creates an otfense and provides the punishment therefor, em-
l)raced by an offense punishable by the like general law. It is
plainly inconsistent witli and undertakes to supersede a law of
the state. It is therefore void.

It nuiy be said that if the ordinance is void as to spiritnous
iicpiors, it is not so as to vinous and malt liquors. We are not
(;alled upon to decide that question. The proof was that the
defendant sold liquors, and it must be taken that he sold
spirituous licpiors. Most generally the term "liquors " in.;.iiea
spirituous liijuors; and besides, if the prosecutor insisted that
the defendant sold vinous and malt liquors, the onus was on
him to show the fact.

The warrant is informal, but it is unnecessary to decide the

;<;'H*;vif ',

460

AMERICAN CRIMINAL REPORTS.

question raised as to its validity, as the exception we have con-
sidered disposes of the case.

Tliere is no error, and the judgment must be affirmed. Let
this be certified.

No error. Affirmed.

Edwards v. Co^raoN wealth.
Andekson v. Same.

(78 Va„ 39.)
Pardon: Ita effects.

1. PARDONBYGOVEnNOR.— The governor's pardon relieves the offender not
only of the punishment annexed to the offense of whioh he vas ton-
victed, but, also, of all penalties and consequences, inclusive of the ad-
ditional punishment imposabic, not byjoason of tlie scnti'Tict) for the
second offense alone, Juit in consecjuence of that sentence a\td the sen-
tence in the former case, v.x'ccpt, liowever, political disabilities growinj;
out of his conviction and sentence. Such pardon does not restore an
office forfeited, or rights that have become vested in otiiers by reason of
tlie conviction and sentence.

li STATKStENT. — E. wius couvictcd in corporation court of D. of felony in
M.nrch, 1883, and sentenced to confinement in the jienitentiary. In
July, 1883, lie was arraigned in the circuit court of Uiclimond, ui)on an
information alleging that he had been before convicted and sen-
tenced for a like offense, to wit, in March, 1881. He pleaded a full p.-u-
don from the governor for the first offense, granted in A])ril, 1882. A
demurrer to tliis i)lea was sustained, and lie was senteiict'd to a furtlicr
term of five years in the penit'Mitiary, under Co<le 1873, ch. 1!).'), 2.'). On
eiTor, it was held that, 1st, the governor's pardon having, in a legal
sense, blotted out the first offense, it must be regarded iis tliougli it hfi.I
never been committed ; 2d, that the demurrer to the plea should have
been overruled.

Error to judgment of Circuit Court of Kiclimond.

George Bryan, for the prisoners.

F. S. Blair, attorney-general, for the commonwealth.

Lewis, P., delivered the opinion of the court.

The statute provides that Avhen a person is convicted of an
offense and sentenced to confinement therefor in the peniten-
tiary, and it appears in the manner prescribed that he has be-

EDWARDS r. COMilONWEALTH.

461

foro been sontcncofl in i lie Uiiitccl States to a like punishment,
a term of live yeai*s' confinement shall bo added to the term
for which ho is or would bo otherwise sentenced. Code 1873.
oh. 105, 25; Acta of AssenU)ly 1877-78, p. 315, 25.

At the .A[arch term, 1883, of the corporation court of the
town of Danville, the plaintiff in error was convicted of a
felony, and sentenced to imprisonment therefor in the peniten-
titiry. On the Cth day of July foUowinj^, under the pi-ovisions
of chapter 208 of the code (now Acts of Asr-iiibly, 1877-78.
]>. 371), he was arraigned in the circuit court of the city of
Kichmond, upon an information filed by the attovne} for the
c«jiamon\voalth, alleging that he had been convicted of a
felony in the said corporation court on the 0th day of ^larch,
1881, and sentenced therefor to iuiprisoinnent in the peniten-
tiary. Tlie information was filed upon information given to
the said circuit court by the superintendent of the penitentiary,
in whose custody the accused then was in pursuance of the
sentence pronounced by the said corporation court at its March
term, 188;}. The accused, upon his arraignment, pleaded in
bar of the proceedings a full pardon of the governor for the
lirst offense, which was granted on the 25th day of April, 1882.
The attorney for the common wealtl demurred to the plea, and
the demurrer was sustained, and the accused afterwards sen-
tenced to undergo a further confinement in the penitentiary
for the term of five years, commencing from the expiration of
the term of confinement he was then undergoing.

The single question now to be determined relates to the
operation and effect of the pardon relied on.

A pardon is defined to be a remission of guilt. Its effect,
under the English law, is thus stated by Ilawkins in his Pleas
of the Crown : " The pardon of a treason or felony, even after
a conviction or attainder, does so far clear the party from the
infamy of all other consequences of the crime that he may
not only have an action for a scandal in calling him traitor or
felon after the time of the pardon, but may also be a good
Avitness notwithstanding the attainder or conviction; because
the pardon makes him, as it were, a new man."

In the early case of CmJdlngton v. Wi/h'ns, Ilobart, 81, the
plaintiff brought an action against the defendant for denounc-
ing him as a thief. The defendant pleaded that the plaintiff

TK'^- i'ROPttrtY OF

m l^.W SOCIETY

462

AMERICAN CrJMINAL REPORTS.

had been guilty of stealing six shoop. The plaintifT replied
that after the felony, and before the jmblication of the oljjee-
tionable \vor<ls, he had l)een i)ar(Uiiied by a general pardon.
Upon denmrrer the repl:e;ition was held good. The whoh;
court were of opinion that tlunigh the plaintiff were a thief
once, yet the elTect of the king's pardon was not only to relievo
him of the ])unishmcnt imposed, but to clear hin» of the crime
and infamy.

J'lackstone says the elfect of a pardon by the king is to make
the offender a new man, to ae([uit him of all cor|)oral penalti(>s
and forfeitures annc^xed to the offense for which the i)ardon is
granted, ami to give him a new credit and capacity.

The same ])rinciples apply to a panhm of the president of
the United States, (hiifcil Stati's v. Wilm/i, 7 Peters, 15(». In
En parte (utrlaml^ 4 Wall., :>."»l). the supreme court held the
petitioner, having received a full pardon for all offenses by him
committed arising fi'oiu ])articipation in the rebellion, was re
lieved from all jienalties and disabilities attached to the com-
mission of his offense, and was placed beycmd the reach of
punishment so far as the offense was concerned; that it was not
within the constitutional power of congress to inflict punisli
ment beyond the reach of executive clemeiu'v, and accordingly
that ho could not be excluded, by reason of the offense for
which he had been pardoned, from continuino- in the enjoy-
ment of the right previously accpiired to api)ear as counselor
and attorney in tlnit court.

In delivering the opinion of the court, Afr. Justice Field said:
'' A i)ar(lon iviu-hes both the punishment prescribed for the
offense and the guilt of the olfen<ler, and when the pardon is
full, it relieves the punishment and blots out of existence the
guilt, so that in the eye of the law the offender is as innocent
as if he had never committed the offense. If granted Ix^foro
conviction, it i*revents any of the penalties and disabilities
consecpient upon convictit>n from attaching; if granted after
conviction, it removes the ])enalties and disabilities, and re-
stores him to all his civil rights — it makes him, as it were, a
new man, and gives him a new credit and capacity. There is
only this limitation to its operation: it does not restore ollices
forfeited, or property or interests vested in others in conse-
quence of the conviction and judgment." And the same

EDWARDS V. COMMONWEALTH,

463

learned judge, in dolivcrinfr the opinion of the court in the
later case of Varlme v, Tlie IDuted Sto.te.% 10 AVall., 147, said:
"There has been some difference of opinion among the mem-
bers of the court as to cases covered l>y the pardon of tlie
president, but there has been none as to the elFect and opera-
tion of a pardon in cases wliere it apphes. All have agreed
that tlic pardon not merely releases the olfender from punish-
ment prescribed for the olfense, but that it obliterates in legal
contemplation tiie offense itself."

In Ofthoni v. United St<itrn, 01 U, S., 474, the court say: "It
is of the very essence of a pardon that it releases the offender
from the conse(|ucnces of his offense."' And to the same effect
are all the authorities,

r>y the constitution of Virginia, the govemor is empowered
to grant reprieves and pardons after comj'id'ion, except when
the j)i'ose('ution has been carried on by the house of delegates,
and to renut fines and penalties in such cases and under such
nil(?s and regulations as may be i)rescribed by law. lie is also
(Mn|t(>wered to remove political disa1)ilitios consequent upon
convicticm for offenses, and to commute capital ])unishment.
('oust., art. IV, 5,

It will tiius be seen that certiiin restrictions are here imposed
ii|)on the exercise of the i)ardoning i)ower whicli are not found
in the laws of England or of the United States. r>ut subject
to these rest I'ict ions, the effect of the governoi's ])ardon must
\\o. determined by the Siimo rules which apply to a pardon by
the British crown or by the president of the United States.

By the pardon in question, ther(>t'ore, the plaintdf in error
was not oidy mlieved of the ])unishment annexed to the offense
for which he had been convicte<l, but of all penalties and con-
secpiences, except political disabilities, growing out of his con-
viction and sentence. One of those consequences was the
liability to which it sidijected hiui to receive the additional
punishment presci-ibed by the statute, in case he slu>uld be
afterwards sentenced to the penitentiary in this state. And
that additional puuishmer*^ ha , been imposed in this case, not
hy reason «>f the sentence for the second offense alone, but hi
conseciuence of that sentence ond the sentence in the former
case, Both causes must exist together to produce the effect
contemplated by the statute; in the absence of either, no case
is made for the imposition of the additional punishment the

464

AMERICAN CRIMINAL REPORTS.

i ^'Jttiily. f.'-

statute prescribes. But as the first offense was in legal con-
templation blotted out, and its consequences removed by tlie
pardon of the governor, it must be regarded, for the pur|)()S(\s
of this case, as though it had never been committed. It fol-
lows, therefore, that the judgment of the circuit court, sustain-
ing the demurrer to the prisoner's plea, is erroneous and nuist
be reversed.

A like order will be entered in tlie case of Anderson v. Tin-
Commonwealth^ in which tlie same question is involved, and
was heard with tliis.

The judgment was as follows:

This day came again as well the plaintiff in error by liis
attoi'uey, as the attorney -general on behalf of the common-
wealth, and the court, having maturely considered the tran-
script of tlio record of the judgment aforesaid and tlie
arguments of counsel, is of opinion, for reasons stated in
writing and filed with the record, that the said circuit court
erred in sustaining the demurrer to the special plea of pardon
of the said plaintilF in error, ami in rejecting the said plea, and
in overruling the said plaintiff's motion in arrest of judgment,
and in sentencing him to confinement in the })enitentiary for the
term of five years, commencing from the expiration of the
term of confinement therein to which he bad l)een sentenced
by the said corporation court of the town of Danville, on tlic

day of ]\rarch, 1883; and that, instead of doing so, the

said circuit court ought to have overi'uled the said denuu-rcr
and sustained the said plea, .and dismissed and <lisciiarged the
said plaintiff of and from the premises in the said information
specified, according to the true intent, meaning and effect of
the said pardon.

Therefore, it is considered that the said judgment l)e re-
versed and annulled; and this court, proceeding to enter such
judgment as the said circuit court ought to have entered, it is
further considered that the said demui'rer be overruled, the said
plea of pardon be sustained, and the said plaintiff be dismissed
and discharged of and from the premises in the said information
specified, according to the true intent, meaning and effect of
the said pardon, and go thereof without day, etc., which is
ordered to be certified to the said circuit court of the city of
Richmond.

Judgment reversed.

JACOBS V. STATE.

465

Jacobs v. State.

(61 Ala., 448.)

PERJUnY: Ajjldavit — Materiality of —Indictment — Misnomer.

1. Perjury — False affidavit. — A plaintiff in an action of detinue, who is

without right or title which will support the action, and who wilfully
and corruptly swears falsely to an affidavit of ownership, thereby pro-
curing an order of seizure from the officer issuing the summons., — an
order the officer cannot withhold if the plaintiff also executes a proper
bond,— is guilty of legal perjury.

2. Materiality of matter falsely sworn to,— An affidavit made at the

commencement or pending a suit to procure the exercise of some partic-
ular power from the court, or from some officer thereof charged with
tlie exercise of power, and which can exert no influence in any subse-
quent stage of the proceeding, constitutes indictable perjury, if the mat-
ter falsely sworn to be material to the point of inquiry at the time it is
made.

3. Indictment — What it must show.— Although the Alabama statute

has disjjensed with many of the allegations essential to an indictment
for i)erjury at common law, i*^ !s still necessary, in addition to the gen-
eral averment of authority in the court or officer to administer the
oath, to set forth the substance of the proceedings, that it may distinctly
apjwar the oath was not extra-judicial, that it was taken on an occa-
sion, in reference to a fact material, and before a court or officer having
lK)wer to administer it. An indictment which does not set forth enough
of the i)rocecding8 to disclose these facts is insufficient under the statute.

4. Misnomer — Names of parties to proceedings in which the false

OATii was taken. — The names of the parties to the proceedings in
which the false oath was alleged to have been taken are essential to
its identity, and, if incorrectly stated, the variance is fatal to the prose-
cution.

Appeal from Montgomery City Court.

J. S. c6 John Gindrat Winter, for appellant.
JI. C. Tompkins, attorney-general, for appellee.

Brickell, C. J. 1. Justices of the peace have jurisdiction
of actions of detinue, dependent on the value of the property
in controversy. When an action of detinue is instituted in the
circuit court, the plaintiff, on making affidavit that the prop-
erty sued for belongs to him, and the execution of a bond, with
surety, for the payment of all such costs and damages as the
defendant may sustain from the wrongful suit, can obtain an
order directing the officer executing the summons to take pos-
VOL. IV — 30

^QQ

AMERICAN CRimNAL REPORTS.

session of the property. Code of 1876, § 2942. Statutory
provisions regulating civil suits in the circuit court, so far as
applicable, are declared in full force as to the rights of parties
and to suits before justices of the peace. The purposes of the
statute — the security and preservation of the property, pend-
ing the suit for its recovery, so that it may be forthcoming to
answer the judgment, or the successful party indemnilied
against injur^^ from its convei*sion or loss — extend with like
force to an action of detinue before a justice as to the action
when commenced in the circuit court. While some of its pro-
visions may seem to indicate that it was designed to be limited
to suits in the circuit court, yet it is capable of a just applica-
tion to suits before justices, and such application renders the
jurisdiction of the justice more beneficial to suitors. Wo
therefore regard it as a rctjulation of suit, falling within th(>
operation of section .']G02 of the code.

2. The affidavit the plaintiff in an action of detinue is re-
quired to make serves its purpose when the order of seizure is
made. It is purely cavtlonfiry — a pledge of good faitli in the
comniencoment of the suit, required to prevent an al)useof the
extraordinary power to disturb and displace the possession of
tlie defendant, before he has had the opportunity of being
heard in defense of it, and before judgment ])ronouncing it
wrongful. When the order is made, the force of tlio affidavit
is exhausted, and it is not evidence in any subsequent stage of
the suit. To constitute indictable perjury, the matter or thing
sworn to must bo material to the issue, or to the point of
inquiry. The mnferiality is not, as is argued by tlio counsel
for appellant, confined, when the oath is taken in a judicial
proceeding, to matters which are involved in the issues of facts
formed during the coui-se of the proceeding. Nor is it essen-
tial that the affidavit should be capable of being used as evi-
dence on the trial of such issues. It is enougli that the mattei-
falsely sworn to is material to the jwint of inquiry at the time
it was made. Oaths are of frequent necessity at the com-
mencement or during the progress of judicial proceedings.
Avhich are matters of evidence only to procure the exercise of
some particular power from the court, or from some officer
charged with the exercise of power, and which can exert n(»
influence on the final judgment, or in any subsequent stage of

JACOBS V. STATE.

467

the proceeding. Thus, formerly, an affidavit to hold a defend-
ant in civil case to bail may have been false, and may have
been made at the commencement, or pending the suit ; or bail
may falsely swear, or others may falsely swear as to their suffi-
ciency ; or an affidavit may be falsely made to procure a writ of
arrest, or as foundation for proceeding to compel another to keep
the peace. The force of the false oath, as matter of evidence,
is exhausted when the point of inquiry is determined. Yet, in
each case, the essential quality of indictable perjury, m((ferJi(lity
to the point of inquiry, exists. Hawkins, bk. 1, ch. 00; Pratt
V. Price, 11 Wend., 127; State v. Johnson, 7 Blackf., 41); Whit"
V. State, 1 S. & M., 149. All such false oatlis tend to the abuse
of the administration of justice, .and are indictable perjuries,
though not affecting the principal judgment to be rendered in
the cause. A plaintiff, in an action of detinue, Avlio is without
riglit or title which will support tlie action, and Avho wilfully
and corruptly swears falsely to an affidavit of ownership,
thereby procuring an order of seizure from the officer issuing
the summons — an order the officer cannot Avithhold if the
plaintiff also executes a proper bond — is guilty of legal perjury.
J5. It is said by Mr. Chitty that, " in former times, indict-
ments for ])orjury were exccodingly prolix and d;uig(M'ous,"
And it seems certain that at common law it was deemed
necessary the indictment should with great particularity set
fortii the proceeding in whicli the oath was taken, and the
character and jurisdiction of the court or officer administering
it. Prosecutions for the offense were embarrassed by this par-
ticularity, and as is recited in the preamble to the act of 23
Geo. 2, c. 11, § 3, sometimes thereby the guilty were en-
abled to escape unpunished. 2 Russ. Cr., 021; 2 Bish. Cr.
Vw, § 901. The evil, it was the purpose of that act to remove;
ami it dispensed with the necessity of setting out in the indict-
ment the pleadings, or any part of the record or proceedings,
or the commission or authority of the court or person before
Avhom the perjury was committed; declaring it sufficient to set
forth the substance of the offense charged upon the defendant,
and by what court, or before whom, the oath or affirmation was
taken, averring such court or such person or persons had com
p(^tent authority to administer the samo, with proper averments
to falsify the matter or matters wherein perjury was assigned.

468

AMERICAN CRIMINAL REPORTS.

This act was adopted in terms by the territorial legislature
in 1807 (Aik. Dig., 118, § 22), and it was part of the Penal
Code of IS-tl (Clay's Dig., 445, § 35). The present statute is
not materially variant, and reads: "In an indictment for per-
jury, or subornation of perjury, it is not necessary to set fortli
the pleadings, record or proceedings with which the false oath
is connected, nor the commission or authority of the court or
pei*son before whom the perjury was committed ; it is sufficient
to state tlie substance of the proceedings, the name of the
court or officer before whom the oath was taken, and that such
court or officer liad authority to administer it, Avith the neces-
sary allegations of the falsity of the matter on which < le per-
jury is assigned." Code of 1870, § 4813. It is said by Judge
Gaston, the principal effect of the act of 23 Geo. 2 "was to
substitute in the indictment the general averment of a compe-
tent authority to administer the oath, in the place of a specilic
averinent of the facts showing such authority, and to make
the question whetlier the oath was or was not taken before a
competent jurisdiction a compound question of fact and law,
to be decided by the petit jury under the advice of the court."
State V. Gall'imore, 2 Ired., 375-0. Under the present statute a
general averment of autlu)rity to administer tlie oath is suffi-
cient. In addition to this general averment, the indictment
must set forth the snhsfanec of the proceedings, that it may dis-
tinctly apj)ear the oath was not extra-judicial — that it was
taken on an occasion, in reference to a fact material, and before
a court or officer having authority to administer it ; when if false,
it is the subject of legal perjury. An indictment not setting
out enough of the proceedings to disclose these facts is not
sufficient under the statute. Or if it sets out the proceedings.
and does not disclose the oath was lawfully administered, it is
insufficient.

The present indictment avers only that the appellant had
commenced an action of detinue before a justice of the peace,
and had made affidavit of his ownership of the chattels sued
for, which is averred to be false. The purpose of making the
affidavit is not shown, nor is it shown that it was used, or
attempted to be used, in the course of the suit. The affidavit
was not authorized by law, unless the apjiellant had applied for
an order of seizure of the chattels. If no such application was

JACOBS V. STATE.

469

made or no sncli order obtained, the affidavit was extra-judicial,
the justice was without authority to take it, and it is not the
subject of indictable perjury. People -y. i^oj?, 25 Mich., 492;
People V. Gulfje, 20 Mich., 30. The allegations of the indict-
ment may bo true, and the affidavit may have been improperly
extorted by tlie justice as a condition on which he would enter-
tain the suit, and issue process for the appearance of the defend-
ant. Or it may have been ignorantly made, to be used as
evidence on behalf of the appellant on the final trial before the
justice. Tiiere must be an oath authorized by law, and the
indictment must show it alfirmatively. It does not appear
fi'om the present indictment that the justice had authority to
administer the affidavit, and it could only be made to appear
by the averment that the appellant had applied for an order of
seizure under the statute. If such application and oi'dor of
seizure was made, the substance of the proceedings are not
stated, and tlie indictment is not in conformity to the statute.

4. The occasion of administering the oath must be correctly
stated in the indictment. The proceeding, if judicial, in which
it was administered must be accurately described, so that it is
capable of being identified. 2 Chit. Cr. Law, 307. The names
of the i)arties to the proceeding are essential to its identitj', and,
if incorrectly stated, the variance is fatal to the prosecution.
The suit described in the indictment was against Cobbs, while
that of which evidence was given was against Cobb. The
n.'imes are not idem sonans, Humphrey v. Whltten, 17 Ala., 30.
The api)ellant Avas entitled to the fourth charge requested.

We do not deem it necessary, in the present state of the rec-
ord, to consider any other question which the case may involve.
If they should arise again, it will be probably in a different
mode. The judgment must be reversed and the cause re-
manded.

The prisoner will remain in custody until discharged by due
0001*80 of law.

hv!

470

AMERICAN CRIMINAL REPORTS.

.(■'..

Freemaii v. The State.

(10 Fla., 553.)

Perjury : Different statements.

1. It is not sufficient to show that defendant made different

STATEMENTS. — In tlio trial on an indictment for perjury, to secure a con-
viction it is not sufficient to prove that the defendant, at different times,
testified to two opposite things irreconcilable with each other. There
must he testimony outside of liis own contradictory statements as to
which of such statements is false.

2. Ordinances must be proved. — Courts cannot take cognizance of the

ordinances of an incorporated town. They are subjects of proof. In
an indictment for jierjury, a.ssigned upon testimony given in a mayor's
court jn the trial for a violation of a municipal ordinance, the indict-
ment should so charge it, and tlie evidence should prove it.

Writ of Error to the Circuit Court for Madison County.

O. J. StnpUng, for pliiintiff in error.
The Attorney-General, for the state.

Mr. Justice Van Valkenuuugu delivered the opinion of the

COUl't.

On the 13th day of April, 1882, the grand jury of Madison
county found a bill of indictment against Eli Freeman for
perjury.

The perjury alleged consisted in this: On the Ttli day of
January, 1882, one Gilbert Armstrong was tried before F. AV.
Pope, mayor of the town of Madison, for betting with one Josei)h
Allen at a game of chance called "pulling the string." Tiiis
plaintiff in error, Eli Freeman, was called as a witness, and
testified "that they (meaning the said Armstrong and Allen)
were betting, and there was money up, and I held th o stakes,
and that they and each of them then and there had money in
his hands to abide the result of said game of chance." I'hat
afterwards, and on the same day, in another matter wherein
one Joseph Allen was tried before F. W. Pope, mayor of the
town of Madis(m, for betting with one Gilbert Armstrong at
a game of chance called "pulling the string," the plaintiff in
error was called as a witness to prove such betting, and wil-
fully and corruptly swore " that there was no betting done
and I did not see any money staked," meaning thereby to say
that there was no money bet by the said Joseph Allen and the

FREEMAN v. THE STATE.

471

said Gilbert Armstrong, or staked upon the result of the saiti
game of chance called " pulling the string," on the said 7th
day of January, 1882.

The cause was tried and the prisoner found guilty.

Counsel then moved for new trial, which motion was denied,
and the cause comes here on writ of error. The errors assigned
are as follows:

I. The court erred in overruling defendant's motion for new
trial, for that J. L. Bunting, a juror, had pronounced and ex-
pressed an opinion in such cause.

II. The evidence was insufficient to support a verdict of
guilty.

III. The verdict was contrary to law.

IV. And for other causes.

Nothing appears in the record to sustain in any way the
fust alleged error. It is made one of the grounds of the mo-
tion for a now trial, but the bill of exceptions is silent upon
the subject, having in it no suggestion or evidence to support
it. The second error assigned depends entirely upon the evi-
dence takon upon the trial of the cause. The first witness, B.
C. Pollard, testified that the town of Madison was incorpo-
rated; that he was marshal of the town; that on the 7th
day of January, 1882, he arrested Gilbert Armstrong and Joe
Allen and took them before F. W. Pope, mayor of said town,
for betting and gambling at a game of chance called "pulling
the string;" that Eli Freeman, this plaintiff in error, was a
witness before such mayor in the cause of The Town of Mad-
ison V. Joe Allen, and swore that there was no betting or gam-
bling at the game of chance called "pulling the string"
between Gilbert Armstrong and Joe Allen on the said 7th of
January, 1882, and that there was no money up or staked be-
tween them,

AY. A. Baker testified that he was present at a mayor's court,
in the town of Madison, on the 7th day of January, A. D.
1 S82 ; that Eli Freeman was sworn in the case of Town of
Madison v. Gllhert Anmtwng, charged with betting and gam-
bling at a game of chance called " pulling the string," and
stated under oath that there was betting and gambling between
the said Armstrong and one Joe Allen ; that money was up ;
that he, Freeman, held the stakes.

472

AMERICAN CRIMINAL REPORTS.

Afterwards, and on the same day, Joe Allen was arrested
and taken before the mayor for betting and gambling at the
game of chance called " pulling the string;" that before the
trial Eli Freeman was sworn as a witness, and testified tluit
there was no betting and gambling at the said game, and tliat
there was no money up to abide the result of the said game of
cluince ; was present at both trials ; supposed it to be half an
hour between the trials. F. W. Poi)e, mayor of the towii of
Madison, administered the oath to Freeman in both cases.

C. S. Church testified that he was present at the mayor'-j
court, in town of Madison, on the 7th day of January, 1882 ;
that Gilbert Armstrong and Joe Allen were tried by F. W.
Pope, mayor of the town of Madison, on that day for bntting
and gambling at a game of cl)ance called "pulling the string."
Freeman was sworn as a witness in both cases. In the case
against Armstrong he swore there was betting and gambling
done between the said Armstrong and Allen; that he. Free-
man, held money staked to abide the result of the said game
of chance. In the case against Allen, Freeman stated that
there was no betting; that ho did not hold the stakes, nor did
he see any money up. Madison is an incorporated town, and
F. W. Pope is tlie mayor. Freeman was sworn in both cases
by the mayor. This is the substance of all the evidence, and
it ap[)ears that the plaintiff in error made two distinct state-
ments under oath regarding one transaction, that is, the bet-
ting and gambling of Armstrong and Allen at a game of
chance called " pulling the string." There is no evidence to
prove which of the two statements is the true one, or which
is the false one. " Where the defendant has made two distinct
statements under oath, one directly the reveree of the othei', it
is not enough to produce the one in evidence to prove tlio oath
to be false." Wharton, Crim. Law, § 2275. (3ther evidence
should luive been produced to show which statement was the
true one and which the false, in order to convict the prisoner.
Mr. Bishop in his Commentaries on the Criminal Law, § lo-ll,
says : " If a witness testifies either in two different causes, or
in one cause at different examinations, or at one examination, to
two opposite things irreconcilable with each other, he commits
perjury in making the false statement, but not in making the
true one, and though what he said when he told the truth may

FREEMAN v. THE STATE.

473

be shown in evidence against him on an indictment for the
falsoliood, yet there must be testimony outside of his own con-
tradictory statements as to which of tV jm is false." J?<yina
V. llnyhes, 1 Car. & Kir., 519 (47 E. C. L., 519); The King v.
JIai'i-ii, 5 IJarn. & Ahlcrson, 920 (7 Eng. C. L., 304); State v.
J. B., 1 l\vler (Vt.), 209; U. S. v. Jfui/cr, Deady, 127.

In Jii'f/iiia V. Whitehead, 8 Car. & Payne, 238 (34 Eng, Com.
L. R., 309), tlie court said: "It is not suHicient that it should
bo ])rovod that the defendant has on two different occasions
given directly contradictory evidence, although he may have
wilfully done so; but you must in this case be satisfied affirm-
atively that what ho swore at the quarter sessions was false ;
and I am of the opinion that that would not be sulHcieutly
shown to bo false by the mere fact that the defendant had
sworn the contrary at another time ; it might be that his evi-
dence at the quarter sessions was true, and that his deposition
before i^fr. Croft, tho magistrate, Avas false, and if so, he must
be acquitted."

This complaint before the mayor, for gambling, against
Armstrong and Allen, seems to have been made under an or-
dinance of the town of Madison, and one of the causes is en-
titled in tho indictment as The Town of 2Iadisoii v. Gllhert
Armstrong, and tho other IVie Town of JIadison v. Joe
Allen.

The courts may, perhaps, take judicial notice of the fact
that the town of Madison is an incorporated town, under the
general statutes enacted for the purpose of incorporating cities
and towns. But they cannot take cognizance of the ordi-
nances passed under and by virtue of such incorporation. They
arc subjects of proof. There is no evidence contained in the
record that either Armstrong or Allen Avere guilty of the
breach of any ordinance of the town of Madison, or that they
were either of them on trial for the breach of any municipal
law. Unless they were tried for such a breach of municipal
law, the mayor could not have had jurisdiction, and conse-
quently this plaintiff in error could not have been guilty of
perjury, for the reason that the oath must be administered by
one having legal authority. Otherwise there is no perjury
in false testimony given under it. The indictment and the
record are silent upon the subject of such an ordinance. The

AMERICAN CRIMINAL REPORTS.

fact that it existed should have been alleged in the indictment,
and the proof of it should have appeared in the evidence.
Lawrenoe v. The State, 2 Tex. Ct. App., 479.
The judgment is reversed.

United States v. Landsbero.

(23 Fed. R., 585.)

PEiuunY: Material matter.

Perjury — Denial of having been in prison is, if paij5e. — Whoro a party
accu8c;l of criino testifies on cross-exaiuiiiation hefoiv a Uiiiteii States
conimiasioncr tliat he liail never been in prison, wlien tlie fact was that
he had been, Hiieh false answer amounts to "material matter" witliin
the meaning of R. S., sec. 5392, and ia indietablo.

Circuit Court of the United States, Southern District of New
York.

J. G. Agar, assistant United States attorney, for the United
States.
li. N. Walte, for defendant.

Before Wallace, Benedict and Brown, J J.

Benedict, J. The accused having been convicted of perjury,
now moves for a new trial and in arrest of judgnuMit. Tlio
principal question presented for determination is Aviujthor the
crime of perjury was committed l)v the accused when ho niiulc
the false statement under oath which is set forth in tlio indict-
ment. This statement was made under the following circum-
stances, as shown at the trial: The accused had been arrested
by virtue of a commissioner's warrant upon the charge of hav-
ing uttered counterfeit coin. lie demanded an examination,
and u{)on such examination duly held before the commissioner
he offered himself as a witness in his own behalf and was duly
sworn as such. Upon his cross-examination, in answer to a
question put without objection, he testified that he had not
been in prison in this state or any other state, when the fact
was that he had been imprisoned in the state prison of this
state, and also in the state prison of New Jersey. Thereafter,

UNITED STATES v. LANDSBERO.

:ti>

■

the present indictment Avas found against him, in Avliicli the
j)orjury assignod is the testifying, under the circumstances
iibovo stated, that ho never was in prison in this state or any
other state.

Oil the jM-rt of the accused tlio point made is that tho false
nuitter so stated by tho accused before tlio commissioner was
not nuiterial matter, witliin the meaning of the statute, and,
therefore, tho crime created by the statute was not committed.

An essential clement of tho otfensf^ created by the statute
(section r>;5J)2, II. S.) is tho materiality of tho matter charged
to have been falsely stated. The words employed in the stat-
ute are "nuiterial matter." Those words were, doubtless,
adopted from the common law, and thoy must be given a sig-
nilication broad enough to cover at least cases of i)erjury at
conuncm law. Tho rule of the common law, in regard to ])er-
jury, is thus stated by Arc] i bold: "Every question in cross-
exiunination, which goes to the witness' credit, is nuiterial for
this purpose." Archb. Crim. PI. & Proc., SIT (Eng. ed.). Tho
same rule Avas declared by the twelve judges in licfj. v. Gih-
W.V, 9.Cox,C. C, 105.

The in(]uiry hero, therefore, is Avhethor the imprisonment of
the accused in this state and in IS^ew Jersey was calculated to
injure his character and so to impeach his credit as a Avitness;
for it is not to bo doubted that, Avhen the accused oiFered him-
self as a Avitness, he placed himself upon the same footing as
any other Avitness, and was liable to be impeached in liie same
manner. Upon this question our opinion is that the matter
stated by the accused as a witness had an obvious bearing upon
the character of the Avitness, and could properl}^ bo considered
by the commissioner in determining Avhat credit Avas to bo
given to the testimony of the Avitness in respect to the crime
with Avhich ho stood charged. In liefj. v. Lnveij, 3 Car. *fe K.,
'in, the accused, Avhen a Avitness, had falsely sworn tliat she had
never been tried in the Central criminal court, and had neA'or
been in custody at tho Thames jwlice station. On her trial for
perjury these statements Avero ruled to be material nuitter, and
the conviction Avas sustained. In Com. v. Bonder, 97 Mass.,
587, a Avitness had been asked " if ho had been in the house of
correction for any crime." Objection to tho question on the
ground that the record Avas the best evidence Avas AvaiA-^ed, and

476

AHIERICAN CRimXAL REPORTS.

the case turned upon the materiality of the question. The
matter was held to be material. The present case is stronger,
for here no objection wliatever was interposed to the inquiry
respecting the imprisonment of the accused. Having made no
objection to tie inquiry, and gained all the advantages to bo
secured by his false statement, it may perbaps be tliat it dt-'s
not lie in liis mouth now to say that his statement was not
material. See lierj. v. Gihhons, svjfra; Reg. v. ^lullanij, Leigh
& C, 503. But, however this may be, it is our opinion that
tlie statement he made was material matter, within the moan-
ing of the statute, because calculated to affect his credit as a
witness.

The otlier points discussed have received our attention, and
are thought to be untenable. They are not such as require
attention in this opinion. The motions are denied.

The PEorr.i: v. !Morax.

(-18 Mich., 639.)

Practice: Additional icitncsscs pluccd on information.

The indorhkmknt upon an information, after going to trial, of the names
of additional witnesses, is giound for a new trial, if done without leave
of court.

Exceptions before judgment from Recorder's Court of De-
troit.

Information for burglary.

lint.

Jacob J. Van, JUper, attorney -general, for the people
John C. Donndbj (Jh'ennan & Donnelly), for defenda

On filing the information the prosecuting attorney indoi'scd
on the information the names of certain witnesses, and when
the case came on for trial and l)eft)re the trial was entered u[)(tii
or jury called he indorsed on the inf()rmation the names of a
number of other witnesses. This was done without any appli-
cation to or ])ermission from the court. On the trial theso
witnesses wei*c called on behalf of the people and the defend-

WOODSON V. THE STATE.

ant's counsel objected to their being sworn. The objection
was ovt Tilled and tlie witnesses were examined.

The coiu't held that the case came Avithin the ruling of Peo-
ple V. JMl, 48 Mich., 482 (4 Amer. Cr. Eep., 000), with refer-
ence to the indorsing the names of witnesses on the information,
and directed a new trial.

United States v. IIathilton'.
(109 u. s., m.)

Practice; Certificate of division — Motion to quash — Discretion of court.

On certificate of division of opinion between tlie judges of
the circuit court of the United States for the middle district
of Tennessee.

3Ir. Justice Bradley delivered the opinion of the court.

The certificate of division in this case was made on a di-
vision in opinion between the judges on a motion to quash
the indictment. As a motion to quash is always addressed
to the discretion of the court, a decision ujHm it is not error,
and cannot be reviewed on a writ of error. In the case of United
States V. Iioxcnhurgh, 7 Wall., h%% avc decided tlie precise point
that this court cannot talce cognizance of a division of opinion
between tlic judges of a circuit court upon a motion to quash
an indictment. This decision was reatiirmed in United States
V. Avery, 13 Wall., 251, and in United States v. Canda, de-
cided at October term, 1881.

The case, not being properly before us, is dismissed.

WooDsox V. The State.

(19 Fla., 549.)

VRfLdiCE: EscajKil convict.

An apprllate court will dismiss appeal of escaped cojtvict.— An
appellate court will refuse to hear a criminal case on a writ of error
where the plaintiflE in error has escaped and is not within the control of
the court below, either actually, by being in custody, or constructively,
by being out ou bail.

478

AMERICAN CRDHNAL REPORTS.

2. Same. — On a motion, where it appeared to the court fli.at the plaintiff in
error liad broken jail and escaped from custody, leaving his cansc
pemling in court : Ordered: That the writ of error be disniisseil at tlio
next term of the court, unless it is made to appear to the court on or
before that time that the plaintiff in error is in the custody of tlie
proper officer of the law.

Motion to dismiss writ of eri'or to the Circuit Coui't for
Franklin County.

T/te Attorney- General, for the motion.
John, W. Malone, contra,

Mr. Justice Van YALKEXBunan delivered the opinion of the
court.

Thomas "Woodson was indicted, tried and convicted of a
felony at the spring term of the circuit court held in and ft)r
Franklin county in May, A. D. 1882, For tlic olfcnso lie was
sentenced to six montlis' imprisonment in the penitentiary.
Afterwards he applied for and obtained a writ of error to this
court, assigning certain errors as appearing in the indictment
as well as upon the trial of the cause. AVhile the cause was
tlius pending in this court he broke jail and absconded. The
sheriff of Franklin county certilies to tliis court that he broke
jail on tlie night of the 7th of June, 1882, and that lie has no
knowledge or information of his whereabouts; that he came
from Columbus, Georgia. The attorney -geneial now moves
that an order be made directing that the writ of error bo dis-
missed on the third Monday of January next, unless tlie said
Woodson shall, in the mean time, surrender himself to the cus-
tody of the shorilf of Franklin county or of the court. The
rule is well settled that an appellate court will I'ofuso to hear a
criminal case on a writ of error wiion the plaintilF in error has
escaped and is not within the control of the court below, either
aetuallv, bv bcin}; in custody, or constructivelv, by being out
on bail. In the case of The PtapU v. Genet, 5!) N. Y., the
court in discussing this (piestion use this language: "AVhen a
jierson charged with felony has escaped out of custody, no
order or judgment, if any should be made, can bo enforced
against him, and courts will not give their time to proceedings
which, for their elfectiveness, must depend upon the consent of
the person charged with the crime." ..." All the cases

RICHARDSON v. THE COMMONWEALTH.

479

which consider the question seem to concur in the view that an
escaped prisoner cannot take any action before the court." In
Common ivealth v. Andrews, 97 Mass., 543, Bigelow, C. J.,
speaking for the court, says: "Tlie defendant, by escaping
from jail, where he was held for tlie purpose of prosecuting
these exceptions, and abiding the judgment of tlie court
thereon, has voluntarily withdrawn himself from the jurisdic-
tion of the court. He is not present in person, nor can he be
heard by attorney. A hearing would avail nothing. If a new
trial should be ordered, he is not here to answer further; if the
exceptions are overruled, a sentence cannot be |)ronounced and
executed upon him." The supreme court of the United States,
in Smith v. United States, 94 U. S., 97, adopted the same rule,
holding that the court will refuse to hear a criminal caso unless
the convicted party suing out the writ of error is whore he can
be made to respond to any judgment which may be rendered.
See, also, Sherman v. The Commonwealth, 14 Grattan, 077;
Zeftwiehv. The Commomvealth, 20 Grattan, 710; Anoni/nious,
31 j\[c., .592. See, also. The People v. liedinger, 55 Cal, 290,
where the authorities are all cited and the question fully dis-
cussed.

The motion of the attorney-general is granted, and an order
will be entered that the writ of error be dismissed on the third
Morulay of January next, unless it shall bo made to appear to
this court, on or before that day, that the said plaintiff in error
is in custody of the sheriff of Franklin county or other proper
officer of the law.

RicnAKDSoN V. The Commonwealtk.

(70 Va., 1007.)

Practice: Grand juries — Intoxicating liquors — Sale hy the gallon.

Plea in abatement. — A pica in abatement will not lie to an indictment
for that the court, if a suflicient number of the jurors summoned are
not in attendance, causes tlie required number to be returned from the
couutij (it large. Nor for tliat two or more of the gi'and jury which
foiuid the indictment had served on another grand jury at the same
term. How they voted on the indictment as members of the first grand
jury could not properly be inquired into. Nor for that the sheriff or

480

AMERICAN CRIMINAL REPORTS.

his deputy were in the grand jury's room when they were deliboratin(»
and examining witnesses upon whose testimony the indictment waa
found.
3. Sai^ bv the gallon — Deltverv in rARCEl^,— At trial of indictment
founded on a statute proliibiting the sale of liquor by retail in quantities
less than one gallon, the jury asked of the court the question: "As a
distiller, has the defendant a right to sell one gallon of liijuor, and
receive pay therefor, and deliver it in less (|uantities at dilTorent times?"
To which the jury received for answer, " The court doth instruct tho
jury that, to constitute a i,;ile by tho gallon, there muKt bo. a sale and
delivery to the buyer of an entire gallon; that a contract for a gallon,
and the delivery of the same in parcels at dilTerent times, is a violation
of the law. Held: The instruction correctly expounded the law. Salts
of liquor, in the mode suggested in the question of the jury, would bo
mere shifts to violate tho statute.

Bohert A. Richardson, for the a]>pellant.

F. S. Blah', attorney -general, for the commonwealth.

AxDKUsox, J., delivered the opinion of the conrt.

The court is of opinion that there is no error in therulinp^of
the court below rejecting the first plea in abatement. The
statute expressly authorizes and recpiires the court, if a sutfi-
cient number of tlie jurors summoned are not in attendance to
constitute a grand jury, to cause a sulficient number to bo re-
turned from the bystanders, or from the county or corporation
at large. They may be summoned from a list, but tiu^ Judge,
if he thinks jn-oper, is ex]m>ssly authorized to dispense with tiie
list. Code of 1873, ch. 200, § 5.

The court is further of opinion that the court did not err in
rejecting the defendant's second plea in abatement. The fact
that two of tlie jurors who were mend)ers of the grand jury
which found the indictment against the defendant had served
on anotlier special grand jury at the same term of the couit
did not disqualify them to serve upon the grand jury which
found the indictment. How they voted upon the indictment
as members of the former grand jury was a matter which could
not be properly inquired into.

The court is further of opinion that there is no error in the
ruling of the court below rejecting tho defendant's thii-d ])left
in abatement. There is no case that we are aware of which
has held that the indictment by a grand jury is vitiated merely
because the sheriflf or his deputy were in their room while they

RICHARDSON v. THE COMMONWEALTH

Avere doliberating and examining witnesses upon whose testi-
mony tlie indictment was found. They are olhcers in attend-
ance u})on the grand jury, and in the performance of their
(Uities it is often necessary for them to enter the grand jury
room, and it may he whilst they are engaged in deliberating
or hearing testimony on the case before them. There is no
averment or intimation in the plea that they excited or at-
tcmj)tcd to influence the jury in any way in the formation of
their opinions.

After the jury had retired to consider of their verdict, they
sent into the cou** he following question: " As a distiller, has
the defendant a right to sell one gallon of liquor, receiving
pay therefor, and delivering it in less quantities at different
times?" The court called the jury in and gave them the fol-
lowing instruction: "The court doth instruct the jury that to
constitute a sale by the gallon, there must be a sale and de-
livery to the buyer of an entire gallon — that a conti'act for a
gallon, and the deliveiy of the same in parcels at different
times, is a violation of the law." To the giving this instruc-
tion to the jui'v the defendant exce))ted, and his bill of excep-
tions was signed, sealed an<l made a ])art of the record.

l>y section I of act ai)proved March 8, 1880, that no person
shall sell wine, ardent spirits, etc., within the limits of this
commonwealth, either by wholesale or retail, or to be drunk at
the place where sold, or in any other way, without having
first obtained license, and then only in the manner thereinafter
provi*' 'd in said act; and by secticm 1'2 of the same act, a
liceuse*! distiller or manufacturer of alcoholic liquors, on the
payment of his specific license tax, "shall have the privilege
of selling the ))roducts of his distillations in quantities not less
than one gallon, at any j)lace within the state of A'irginia."
The distiller, then, has the privilege of selling in no other
way — that is, in quantities not less than one gallon.

It was evidently the design and i)ut'pose of the legislature
to so i»rovide that distilleries should Jiot be a place of resort for
idlers and drunkards and tipi)lers to procure ardent spirits for
immediate use, and which would be promotive of di-unkenness,
and lead to disorder and disturbances of the |)eace, whilst the
legitimate wants of sober people should not be denied, it gave
to the distiller, who had i)aid his license tax, the pi-ivilege of
Vol.. IV — ;n

4S2

AMERICAN CRIMINAL REPORTS.

1 JT

selling in quantities of not less tlian one gallon. But the pur-
pose of the law would be defeated by the interpretation tiiat
the distiller might contract to sell to a party a gallon of
whiskey and mete it out to him in small quantities, an.}, of a
pint or half pint at a time, as he might call for it. AVe are of
opinion that such sales of spirituous liquor would bo more
dhifts to violate the statute.

In State V. Poteet, SG N. C, 012, one received sundry drinks
of spirituous liquor in payment of a debt — the seller to have
credit for each drink until the debt was satislied. Held a vio-
lation of the statute against retailing in quantities less than a
quart without license. The court observed that the instruction
given the Jury by the court is fully sustained by the decision in
State V. Klrkham, 1 Ired., 381: the facts of which were that
the defendant was applied to by the prosecutor to purchase
some spirituous liquor; the defendant told him he could not
sell less than a quart. The prosecutor agreed to purchase a
quart, provided the defendant would permit him to take it in
small quantities, as he might want it, until the quart was taken ;
to which defendant agreed. During that day the prosecutor
took three half-i)ints, and some twelve months or more there-
after he got the other half-pint, and paid for the quart. It
was held that this was a violation of the law prohibiting the
sale of spirits by the small measure without a license.

The court is of opinion that there is no error in the instruc-
tions given by the court below to the jury in the case in hand.

Upon the whole the court is of opinion to alllrm the judg-
ment of the court below.

Judgment ajjlnned.

TnE State v. Steisiqek.

(61 Iowa, 633.)
PnAcncE: Indictment — Copy.

Wlien an inrlictment is lost or miKlaid, aftor arrai;::nment of tlio accused,
the court has power to substitute a copy and prcK-eed to trial upon tho
record thus mode, the same as upon the original indictment.

ROOKS V. THE STATE.' 433

C. W. Kirl'patrich, for appellant.

Smith McPherson^ attorney -general, for the stato.

RoTiinocK, J. In the case of The State v. liivers, 58 Iowa,
102, it was hold that wliere an indictment had been lost or mis-
laid after the arraignment of the accused, it was within tho
power of the court to substitute a copy and proceed upon the
record thus made the same as upon an original indictment. It
is claimed in this case tluit there was no proper evidence that
the paper offered as a copy was a true copy of the original ia-
dictmont. It is true the record does not show that the copy
was ccrtillcd to be a true copy by the clerk of the court. But
it appears that the original was in the files of the court during
all the in'climinary proceedings, and the evidence showed that
the paper presented was a true copy. This evidence was in no
way controverted or denied. The court found it to be a copy
upon such evidence, and, for aught that appears, the evidence
offered was the best evidence which was obtainable. No othcar
question is presented in the case.

Affirmed.

Rooks v. The Statk

(C5 Ga., 330.)

VnAcncE: Separating witnesses — Venue.

1. DlfiOREDIKNCE TO RULE SEPARATINO, RENDERS WITNESS axm^': 7 OP COW-

TEMPT, BUT NOT INCOMPETENT. — Wliile we think it a sound rule of pra»-
ticc, in putting witnesses under the rule, to swear all of them on both
sides and send them out of hearing until called to testify, still we know
of no law which renders a witness in<'0Tui)etent because he has heard
Bome of the testimony on the side omxised to that on which he was
called. It might be a ground to attach the witness, but not to exclude
him.

2. In a criminal case the venue must be proved beyond a reasonable doabtk

Before Judge Speer, Monroe Superior Court.

Berner cfe Turner and IT. C Peeples^ for plaintiff in error.
F. D. Dismuke, solicitor-general, and Stvtoart i& JIall, for the
state.

484

AMERICAN CRIMINAL REPORTS.

Crawford, Jistice. Homy Rooks was convicted of ma-
licious mischief in the court below, and by his bill of exceptions
claims that the errors committed entitled him to a new trial.
He submits :

1. That Robert Lyon, a witness for liim, was not ])ermitted
to testify in his behalf, because, after havin<>; been sworn and
" put under the rule," he was present in the court room and
heard the testimony of the witnesses on the part of the state.

The law is that " in all cases either party has the right to
have the witnesses of the other party examined out of the
bearing of each other." Whilst this is the rule of law upon
this subject, yet it is the practice of the courts, whenever re-
quested, to have all the witnesses, both for the state and the ac-
cused, called in and sworn, and then instructed to retire beyond
the limits of the court room, and there remain without com-
munication with any one as to what may have been sworn in
the case, until they are called to the stand themaelvcs to
testify.

We recognize this as a sound rule of practice, and think that
the court should take proper care to effect this object as far as
practicable and convenient; yet we know of no legal riglit ex-
isting in one party to have a witness excluded from the stiind
because he happened to be present when the witnesses of the
other party were testifying. Nor do we think that the court
itself should go to the extent of depriving a party of the testi-
mony of his witness, because that witness has disobeyed tlie
order given touching his presence in the court room at an im-
proper time. At most it was only an irregularity, and nuiy
have amounted toa contemj^t for which the witness might have
been lined; but to e,rrhi<lc him, might deny the ])arty of tlie
testimony of the only person in the world by whom he could
prove his innocence. Such is not law. Code, § o8<!;{; 27 Ga.,
288.

2. ft is claimed on this groun<l that the verdict is contrary to
law, because it nowhere appears in the testimony that the
venue is proven. An examination establishes the fact that it
was not shown by any of the witnesses that the crime, if com-
mitted at all, was committed in the county of iMonroe. No
conviction is legal unless the venue is made to ap|)ear beyond
a reasonable doubt; and a verdict has been held contiary to

THE STATE v. COOK.

48S

law wliovo the testimony does not show tliat the offense was

committed in the county wliere the defen(hint was tried. 48

Ga., 43; 5(5 id., 30; Moi/e v. The State, September Term, 1880

(05 Ga., 754).

Judgment reversed.

Peoi'lk v. Floue3.

(04 Cal., 420.)

PRA(moE : Information.

Wlion tbe insertion of an niinocfssary word in an infomiation does not
tend r,o the prejudice of tlie defendant, and does not prejudice the in-
formation or tiie description of tlie offense, it should be disregarded.
Penal Code, g§ 900, 1404.

AiUmuy-G encral Mnrxhall and Dhtrlct Attorney Farrar^
for appellant.

S. W. Gels and Ostrander cfi Knox, for respondent.

McKkk, J. Eliminating from the information the word " ac-
commodation," the description of the otfense charged against
the defenihmt was unol)jectional)le. It may be conceded that
the word 1 as no common acce])tation; it was therefore useless
in connection with the charge; and as its insertion in the in-
formation did not tend to the pi-ejudice of the defendant, in
respect to a sulistantial right, and did not prejudice the infor-
mation nor the description of the otfense, it should have been
disregai-ded. Sections OOO, 14*i4, Penal Code.

Jutlgment reversed and cause remanded with instructions to
overrule the demurrer.

The State v. Cook.

(30 Kan., 83.)

Practice: Evidence — Intoxicating liquors.

1. COUKT MAY PKUMIT NAMES OP ADDITIOXAL WITNESSES TO BE PLACED OH
iXFOiiMATioN.— It is within the discretion of the court to permit the
name of a witii' s. known to the prosecutmg attorney at the time of

486

AMERICAN CRllMINAL UEPOHTS.

Gio DliriK i>r the information, to bo indorsed thorpon nftcr tlio ronimcnoo-
mont. of 1 1' trial, and to |)i^rinit Hiit;h witnow to testify <>ii tlio part of
tlio stalo ill a criminal proaouutiim over dofendant's objection,
t. Secondary evidence held incomi'ktent to show defendant had no
PEKMiT. — In a criminal prosecution against a dt.'fendaiit forsellinj; in-
toxicatinj^ liipiors without taking out or having a permit, tho county
attorney ti'stilled that he was ac(|uainto.l with tho probate Jnd'^c? of tho
county; that he understood Im wjui absent from home; that the book
which ho [iroduced was the joinnal of permits l.ept by the i)robate
judge; tiiat it contained all the druggists' permits issued by the i)robato
judge; that he had looked into tho other journals kept by tho i)ro-
bate judge, and had been unable to llnd any reconl of permits therein;
tliat he hail freipiently licard tho probate ju<lge testify in licpior cases
tliat all of tho records of permits were kept in the book produced by
iiiui ; that the probate judge had another journal in which he ke|)t a
record of the business of liis court; that he went into the office of tlio
probate judge and got tho Ikio'.c wlien the judge wiis not there; that
there were other journals in his ollico; that tho l)ook contained nothing
but blanks for recording druggists' permits, and thereupon, against the
Cfcjection of tlio defendant, the court permitted such buuk or jouiual of
Itermits to be iutroduced in evidence. Jlckl error.

Error irom A7yaTi(lotto County.

Duchan cf? Gray and Tfale tG M'dlet% for appellant.
W. A. JohiiHf.o)i, attornoy-ooncral, for the state.

EToRro.v, C. J. Tho defendant, Lawson Cool:, was cliarged
With bavin<j sold intoxicating liquors witljout takin;^- out and
having a permit, as provided in tho proliibitory act of 18S1.
IIo Wiis convicted of tho offense alleged against him, and ad-
judged to pay a fine of $1U0 and the costs. lie brings the case
here by api)eal.

1. The lirst assignment of error is in auowing the name of
tho county attorney, one Gibson, to be indorsed u[)on the in-
formation after the commencement of the trial, and to tho
admission of stiid (libson as a witness on the part of the state.
"When the defendant ol)jected to the rorpiest for the name of
this witness to bo indorse;! upon the information the witness
gtated to the court that he had not expected to bo used as a
witness at the time of liling the infonnation; that up to a short
time before the commencement of the trial he lia<l su])posed
that he could prove the facts within his knowledge by K. E.
Cable, whoso name was indorsed as a witness upon the infor-
mation, but he had discovered that II. E. Cal)lo had not been

Tin: STATE y. COOK.

487

.s!i1n)a'n:io(l, and was then outside of the jurisdiction of th')
coui't, Tlie court thereupon allowed the name ol' Gibson to
bo indorsed upon the infonnation, and allowed him to testify*
on the part of the state. It was witiiin the discretion of the
coui-t to permit the name of the witness to be indorse<l on the
infonnation, and to allow him to testify over the defendant's
ol)jection. Section C7 of the Criminal Code reads: "Infor-
mations may be tiled during term time, or ivithin twenty days
preceding the term, in any court having jurisdiction of the
olfense specified therein (except in cases of fugitives from jus-
tice, which may bo liled with the clerk in vacation) l)y tho
prosecuting attorney of tho proper county as informant. IIo
shall subscribe his name thereto and indorse thereon the names
of the witnesses known to him at tho time of tiling the same,
lie shall also indorse thereon the names of such other wit-
u('ss(;s as may afterwards become known to him at such times
before the trial as the court may, by rule or otherwise, pre-
scribe. All informations shall bo verified by the oath of the
prosecuting attorney, comjdainant, or some other person."

In construing the ])rovisions of this statute it was said in
lS!<itt'. P. Dirhoii, ('► Kan., 2U1): " l>ut, as we understand it, there
is nothing in them or any other statute which would have tho
elfect of prohibiting a witness from testifying whoso name had
become known to the prosecution after the commencement of
the trial, and without his name being indorsed upon the infor-
miition at all. Nor tlo we think that such a prohibition, if it
did exist, would, as a rule, bo calculated to promote justice.
Cases, as is well known to every practitioner at the bar, often
occur where during tho pi'ogress of a trial a necessity arises
for the introduction of certain kinds of testimony which could
not have been known or anticipated on tlie part of the prose-
cution before the commencement of the trial; as, for example,
if it siiould bo within the power of the prosecution, and justice
should re(|uiro the impeachment of a witness sworn on the
defense, and such witness had boon hitherto entirely unknown
to the prosecuting attorney. Tn such a case the universal
practice has boen to call and examine witnesses without regard
to their having been previously named and summoned, or even
thought of."

In State v. Medlicott, Kan., 257, this decision was approved,

488

AMi:UIC'AN CIMMINAr. UKPOIMS.

and it was licld not er.or t(» permit a witness on tlio part of the
state in a criminal prosecution, wlioso name lias become known
to the pi(jsecutor after the commencement of the iriai, to
testify, even thougli the name of tiie witness has not been
indorsed upon the information. While the names of the wit-
nesses upon the information will inform a defendant by wiiom
it is expected the char^Lje therein set forth is to bo sustained,
and thus enable him, to some extent, to prejKire for his defenst;,
uiid while it is the duty of the prosecuting attorney to indorse
upon such information the names of the witnesses known to
him at the time of liling of the same, and expected to be used
upon the trial, yet the court, in the furtherance of justice, within
its discretion, ou<^ht to have the power, and, in our o|)inion,
does have the ])ower, to ])ermit the name of any witness to be
indorsed upon the information at any time, even after tlie trial
has actually commenced. Said section 07 is not a condition to
the qualification of a witness. As a j^eneral rule, the court
should allow the names of the witnesses of the state to be in-
dorsed up(m the information after the commencement of the
trial, if it be important so to do; but. of course, if the defend-
ant is taken by surprise thereby, the court should extend to
him all possible facilities for a fair, full and impartial trial,
and, if necessary, may delay or even continue the heai'in<j; of
the case until he has ample opportunity to prepare to meet the
evidence of the witnesses indorsed upon the information aft(>r
the commencement of the trial. The |)rosecution ou^ht not
to be defeated sim])ly l)ecause the county attoi'ney does nf»t
indorse the names of the witnesses at the time of the lilinu^ the
information, or before the trial; for often, during tht; ijrot^ress
of the trial, a necessity arises for the introduction of evidence
which could not have been anticipateil on the part of the pi-os-
ecution before the commencement thereof. If the court shall
be convinc(!d that the county attorney had purposely failed to
indorse on the information the names of the witnesses known
to him at the time of lllin*^ the same, to render it dillicult for
the defendant to prepare his defense, the court may, un<l(!r
such circumstances, within its discretion, refuse to <j^rant the
recpiest of the county attorney to indorse on the infoi-mation
the names of the additional witnesses; but in all cases where
the request to indorse the names of witnesses on the infoi ma-

TUE STATE c. COOK.

489

tion (lLiri?i;j; tlie trial is mado in good faith, and to j)ioinoto
jii.sti(!o, tho court has tlio authority to grant tho sanie, ivooping
in view tho just adnnnistration of the ci-iujinal hiws, and tho
right of the «lefen(hint for reasonalilo time to prepare to meet
unexpected evichmce.

± The second and third errors alleged concern the admis-
sion of certain evidence given by tho v.'itness Gibson, and the
pnxhiction of a book by him, called the "Journal of Permits."
(iii)son testified, among other things, that he was acquainted
with It. E. Cable, the |)r<)bate judge of Wyandotte county;
that he understood he was away from home. A book was
then i)resented to him, and ho was asked if he knew what book
it w;is. The witnes>; answered ho did. The (luestion was
tiicn asked what book it was. AVitness answered that it was
the "Journal of Permits" kept by tho ])rolKite judge; that it
contuined all the druggists' jx'rinits issued by the probate judge
of Wyandotte county; that he had looked into the other
jom-nals ke[)t by the probate judge and had been unable to
lind any record of permits therein; that he had frequently
liciird f'abh? testify in licpior cases, and he had always testilied
that all of the records of pi'ruiits were k('[)t in tliis book.
Thereu|)on the defendant moved the court to strike out all of
this testimony, but the court overruled the motion. On cross-
examination the witness testilied as follows: "The probate
judge litis another journid; one in which ho keeps a record of
the l)usiness of his court. K. E. Cable is the custodian of this
book; I am not. I went into his ollico to-day and got the
book. Cable was not there. There were other joui'nals in
his oillce. The one he kept the rc'cord of his court in was
th(>re. This book contained nothing but blanks for recording-
druggists' permits.'' The defendant moved also to strike out
this evidence. This motion was also overruled, and the state
then olFered in evi'V'Uce the book produced by the witness as
the " Journal of Permits." To the introduction of this book
tho (h^fendant objected. This objection was overruled.

Most of the evidence of (ribson was wholly incompetent;
but some of it immaterial. That which was hearsay was
prejudicial. Even if it were ])()ssil)le for the witness to iden-
tify the book produced by him. he was not competent to in-
form the court or its contents or to state wiiat was co|)ied in

490

A]MERICAN CRIMINAL REPORTS.

the other journals of the probate judge, nor ouf:jht lie to have
testiiied as to the statements made by Cable in other cases.
As the introduction of the journal of permits ^vas ])i'cce(led
and based upon hearsay and incompetent evidence, the boolc
ought not to have been received. It is claimed, however, that
the county attorney h a competent witness to testify to the is-
suance or non-issuai'co of permits to sell intoxicating liquors,
because section 30 of the prohibitor}"- act makes it the duty of
the probate judge, when application is made to him for a per-
mit to manufacture or sell such liquors, to notify the county
attorney, who is to appear and advise with the probate judge
Avith reference to tlie issuance of the permit and the ai)i)r()val
of the bond. Notwithstanding this, the statute docs not au-
thorize a county attorney to issue any permit or keep the ivc-
ords thereof. If he sliould advise the probate judge not to
issue a permit, and tiie probate judge, contrary to his advice,
should grant the permit, such permit would be undoubtedly
valid witliin the statute. Again, if the probate judge should
issue a permit without notifying or advising tlie county attor-
ney, the permit would authorize the applicant to sell intoxicat-
ing li([Uors for the ])urposo namod in the statute. The county
attorney cannot have jjcrsonal knowledge in all cases of the
granting of ^icrmits, and he is not the jjersoa to te.;lify of his
own knowledge as to their issuance or non-issu;ir)c(>.

In S'afe v. Sjhineltn)', 27 Kan., IDO, it was held, where tho
probate judge, who was aocpiainted with tho deteudant, testi-
iied he had not issued to him any permit to sell intoxicating
liquors, that this was prhaa fac'ie evidence the defendii.it hail
no permit. This riding rested upon the fact liiat the i)roliil)-
itory act casts the duty resj)ecting i)ermits ajjon the ]>ei'.s()n
holding the ollice of probate judge, and provides that no p^T-
mits can issue without th.e act of tho judge. A coujity attor-
ney is not tho custodian of the journuls or ollicial I'ccords of
the probate judge, or the pi-obate court, and is not authori/tul
to issue any permit; and, therefore, the rule adopted in ISlala
'0. ISclnocltei', fiuj}ra, does not apply to a county attorney.

For tho error pointed out, tho judgment of tho district court
must bo reversed and the cause remanded for another triaL

(All tho justices concurring.)

TERRITORY v. SHIPLEY.

491

Teijritouy v. Siiiplkt.

(4 Mont., 4G8.)

Practice: Amtujnment and plea — Indictment.

1. Presumed that defendant was arraigned, etc.— Where the record

dooa not disclose thiit the prisoner was arraigned and pleaded, the ar-
raignment and plea will bo presumed, unless there bo something wliich
aflirmatively shows their absence.

2. Dkscuiition of the stolen property.— Where in an indictment the

stt)len ])roperty is described as " sundry bank-bills, issued on the au-
thority of the United States, usually known as ' greenbacks,' amounting
in all to the sum of OWJ," such description is not suflicient to supix>rt
the indictment, or enalile the jury to determine that the stolen chattels
are the s-ame referred to in the indictment. The numlier, kind and do-
nomination of the bills ought to be given, or a good and suflicient
excuse for not doing so set forth in the indictment.

From Third District, Lewis and Clarke Counties.

J. K. Toole, for a])})o]lnnt.

T. J. Loioevij^ district attorney, for respondent.

GAMiKAiTri, J. Tlic record in this case does not show that
tlic defoncUint was arraiofned and ])loaded to the indictment.
This is assigned as one of the reasons for the reversal of tho
judguient. No objection appeal'.^ to have been made ujionthis
ground in tho court bek)w, anti the defeniUmt was duly tried
after (Unnurrer. AVe cannot reverse the judgment for the rea-
son alone that the record does not show an arraignment and a
plea by the (U'feiulant. AVhere the record docs not, as in this
case, disclose such arraignment and plea, unless there is some-
thing to show aHirniativcly that tlie defendant was not ar-
I'aigned and did not })lead, such arraignment will be i)resumed.
But the defendant denuuTod lo the indictment, alleging, among
other reasons thoi'cfoi', tho following, viz. : "That there is no
suillcient description of the property alleged to bo stolen to
put the defendant on his defense." The description of the
property all(>ged to have been stolen in tlie indictment was as
follows: " Suiulry bank-bills, issued by nuthority of the United
States of Anuu'ica. usually kiu)wn as ' greenbacks," amounting
in all to the sum of !?IS;», of the value of 8l^'>i" ""'hI sundry
bank-bills, issued by the authority of tlu; Uniteu States of

492

AMERICAN CRIMINAL REPORTS.

America, usually known as ' greenUicks,' amounting, in the
aggregate, to $580, of the value of $581)."

This description fails to give the number, kind, or denomina-
tion of the bank-l)ills. It is this failure which it is claimed
constitutes the insutliciency of the description of the i)roperty,
and renders the indictment consequently bad. One of the
principal objects to be accouiplished by an accurate, precise
and certain description of ])roperty alleged to be stolen, in an
indictment for larceny, is that the jur}' nuiy be able to decide
whether the chattel proved to have been stoleJi is the very
same as that described in the indictment. It should, therefore,
be described with sulficient certaint}' to enabh^ the jury to so
determine. Viewed in the light of this rule the description
complained of does not accouiplish this oi)ject. There is not
such a certainty of description as that a jury t'onld find, if the
property should be proven as dosciibed, that it was the very
same propei'ty alleged to have been stolen in the indictnient.
A general description of the i)ropeii:y as "sundiy bank-bills,
issued by authority of the United States of America, usiiallv
known as 'greenbacks,' amounting in all t«. sSnISO," or '*in tlio
aggregate to 8r)8!t," is plainly not a (l(.>scrij)tion with sullicient
precision and certainty as to be a cttm[)liance with the ab:)VO
rule. The description sliouhl also be such in an indictment as
that if the defendant is tried he may be enabled to plead his
conviction or acquittal to a subsequent indictment relating to
the same pi'operty. It is true that the identity of the property
may be shown by other evidence, but a failure to propei-ly de-
scribe the pro[»LM'ty will riMider the proof of such idcMitity
more diHicult. So far as the defendant could rely upon the
description of the property in this indictment against a subse-
quent accusation relating to the same property, it is obnoxious
to the objection of the insulliciency of the description tiuM'eof.

Again, another object of a description is to iiUorm the de-
fendant, with sulKcient certainty and |)recision, of the partic-
ular transaction constituting the olfense witli which he is
charged, as that lie maybe able to prepare his defense thereto.
We cannot think that this obj(;ct is attained where, as i?i this
case, in which bank-notes or cnrrency are the allegeil subjects
of larceny, the description merely states the kind of money
generally and the aggregate amount thereof, without stating

TEKRITOltY V. SHIPLEY.

493

tlie nmnl>er and kind or denomination ot the notes. This kind
(jf j)n)perty is as susceptible of this kind of description as coin
oi money, and in such a case "the number of the pieces and
their (kuiomination, and wlietiier of silver or gold or copper,
should be stated, and regularly the value of each." Jfenoin
r. The People, 2() :Mich., t>08. The description, therefore, of
the property does not comply with what are regarded as fun-
damental recpiirements in relation to describing the property
alleged to be stolen, in indictments for larceny. These require-
ments have, as their ultimate object, fairness towards the de-
fendant. Any desci'iption, therefore, -which is not set forth
witli suflicient certainty to satisfy the above requirements, or
assign a good and sufilcient reason for the failure so to do,
may be taken advantage of by demurrer. The facts which
are thus required to be set out are not indeed essential con-
stituents of the crime. They are not vital to the accusation,
l)eing merely matters of descri})tion. But where they are not
set forth, the reason for the non-compliance with these rules
should be stated in the indictment. The allegation that such
tacts are "unknown to the grand jury," when such is the case,
would be an excuse for such non-compliance. This is not a
mere formal allegation, for it has often been held that if "it
be known that the particular fact was known to iho grand
jury the indictment would be bad, or that the judgment should
be arrested or reversed, or the defendant acquitted." 1 Bish.
Trim. Pros., I5(»n, ;>,(I2, and cases cited. The indictment under
considej'atifjn does not comply with the above requirements in.
I'elation to ])recision and certainty of description, or assign
any excuse therefor. These recpiirements are, in our opinion,
reasonable, and not only do not conHict, but are in harmony,
with our legislative provisions in relati<m to indictments, as set
forth in article 8 of the criminal practice act.
Judirment reversed and cause remanded.

40i

AMERICAN CRIMINAL REPORTS.

Wiggins v. People, etc., in UxAn.

(93 U. S,, 4C5.)

Pkactice: Evidence — Uncommnnicafrd threats.

1. Writ op ER!tOR. — Section 3 of the act of con!j;ri'ns of June 23. 1874, al-

lows a writ of error from the siiinxMne court to the supreme court of
the territory of Utah, in criminal cases, when the ae( used has been
convicted of bigamy or polj'gamy, or has been sentenced to death for
any crime.

2. Uncommunicated threats ad5iirsii!I,e under c'i;rtain circujistances.—

In a tri.il for homicide, whert; the quo;tii>n is as to wliat was deceiused's
attitude at tlie time of the fatal encounter, recent threats may hcconio
relevant to show that this attitude w.as one liostilo to the defendant,
even thou>:;li such tln-ents were not cojnnuiiiiciited to defendant. Tlio
evidence is not relevant to sliow the »//'(> aniiiio of the; defendant, but it
may bo relevant to sliow th.at, at the time of the meeting, the deceased
was seeking defendant's life.

Error to the Supreme Court of the Territory of Utah.

Mr. George IT. WlUiam!^, for the plaintiff in error.
Mr. Solicitor-General PhiUijJS, contra.

Mr. Justice MiLu:n delivered the opinion of the court.

Section 3 of the act of congress of June 23, ISTl (18 Stat.,
254r), allows a writ of error from this court to the supreme
court of the territory of Utah, where the defendant has been
convicted of bigamy or iiolygamy, or has been sentenced to
death for any crime. The present writ is brought under that
statute to obtain. a review of a sentence of death agiiiust
plaiutiir in error for the murder of John Ki-amer, commonly
called Dutch John, in Salt Lake City. The only error insisted
upon by counsel, who argued this case orally, was the rejection
of testimony offei'cd by the prisoner, as shown by the follow-
ing e.Ktract from the bill of exceptions:

"The defendant, on the trial of this cause, called Robert
IIcslop as a witness in his defense, who testified:

"That, iust a short time before the shootinjj:, the deceased

'o'

showed him a pistol which he (deceased) then liad upon his
person. Deceased at this time was sitting on a box on the
opposite sid(! of the sti-eet from the Salt Lake House, and in
front of Reirirel's store.

WIGGINS V. PEOPLE.

" The prosocntini^ attorney admitted that this was after tho
deceased was ejected from defendant's saloon.

" Whereupon the counsel for the defendant asked witness
the following question :

"What, if any, tlireats did the deceased make against tho
dcfenchmt at this time? — which was objected to by tho prose-
cuting attorney, for the reason it was immaterial.

" Tho objection was sustained by the court, and the defend-
ant, by his counsel, then and there duly excepted.

" Defendant's counsel then asked witness what, if anything,
did deceased then say concerning the defendant?

" (Objected to by prosecuting attorney as incompetent.)

"Defendant's counsel thereupon stated that they expected
to prove by tliis witness that in that conversation, a short timo
pi'ior to the killing, the deceased, in the liearing of said wit-
ness, made the threat that he would kill the defendant before
ho went to bed on the night of the homicide, which threats wo
cannot bring home to the knowledge of the defendant.

"AVhich was objected to by the counsel for tho prosecution,
because it was incompetent.

" The objection was sustained by the court, to Avhich the de-
fendant then and there excepted.

" This witness and several others testified that the deceased's
general character was bad, and that ho was a dangerous, vio-
lent, vindictive and brutal man."

Althougli there is some conflict of authority as to the admis-
sion of threats of tho deceased against the prisoner in a case
of liomicide, where the threats had not been communicated to
him, there is a modification of the doctrine in more recent
times, estiiblished by the decisions of courts of high autliority,
which is very well stated by AVharton, in his work on Crimii^al
Liiw, § 1027. " Where the question is as to what was deceased's
attitude at the timo of the fatal encounter, recent threats may
become relevant to show that this attitude was one hostile to
the defendant, oven though such threats were not communicated
to defendant. Tho evidence is not relevant to show the quo
arumo of the defendant, but it may bo relevant to show that,
at the time of the meeting, the deceased was socking defend-
ant's life." Sfoh's V. People of New Yot'l\ 53 N. Y., \U\
Knmerv. State, \^ Ga., 194; Carn^Ml v. Peojde, IG HI., 18;

496

^XMERICAN CRIMINAL REPORTS.

JToller V. State, ?>7 Ind., 57; People v. Arnold, 15 Cal., 470;
Peoph V. Scro(/f/! )!.><, 37 id., ♦!7r».

Counsel for the government, conceding tliis principle to bo
sound, sustains the ruling of the court below, on the ground
that t' lere is no evidence in the case to show any hostile move-
ment or altitude of the deceased towards the prisoner at the
tii7'e oi /'; tal shot, and that there is conclusive evidence to

the coi. . i'n support of this latter position, he relies on

the testimony of Thomas Dobson, the only witness of the
meetin ; •vhich I'^^ulted in the death of deceased by a pistol
shot from deJ . ndau..

Before criticising jiobson's testimony, it is necessary to state
some preliminary matters.

It appeal's that, on the night of the homicide, the deceased
and a num of similar character, called Bill ]}ean, got into a
quarrel, in a drWdcing-saloon ke])t by defendant, in which they
both drew pistols. Defendant interjMjsed and took their pistols
from them, and turned them out of his saloon by different
doors. He gave liean his pistol as he turned him out. and
asserts that he also returned the deceased ///.«< pistol; but of this
there is doubt. Shortly after this, he started homewards, and
fell in com})any with Dobson, who was a night watchman of
Salt Lake Citv. As thev went along the street. Bean was dis-
covered in the n^cess of a doorway on the sidewalk with a
pistol in his liands, and defendant went up to liim, took it
away from him, and he ran down the street. Passing on,
Dobson and defendant came in front of a hotel, the Salt Lake
House, where the homicide occurred, of which Dobson, the only
Avitness, tells his story thus:

" As I came down street about 2 o'clock in the morning, I
saw Dutch John sitting on the carriage steps of the Salt Lake
House, with his face resting on his hands, apparently in a stupor
or asleep. Wiggins, the defendant, was with me. He (Wig-
gins) jumped to my rear and immediately the tiring com-
menced. I do not know, and cannot tell, who fired the first
shot. At the first report I turned round and saw the blaz(^
of the second shot from a pistol in the hands of Wiggins. I
had advanced to the cari'iage steps and said, '.Jack, don't kill
him.' Wiggins then jumped on the carriage stej)s and fired
another shot, which passed right by in front of me and went into

WIGGINS t'. PEOPLE.

49T

the body of Dutch John. Dutch John grabbed me around the
legs, and we fell over the steps into the street. When I turned
and saw the lirst shot from Wiggins' pistol, I saw Dutch John's
hands raised and heard him cry out, ' Don't kill me, I am not
armed.' Immediately after the firing ceased Wiggins stooped
down as if to pick up something, and when he raised up ho
had something in his left hand, but I cannot tell whether it was
a pistol or not. At the same time Wiggins made the remark
to the deceased, * You wanted to kill me,' or ' You tried to kill
me,' I am not sure which expression was used."

If we are to believe implicitly all that is here said by this
witness, we do not see in it conclusive evidence that defendant
fired the first shot and that no previous demonstration was made
by deceased. On the conti'ary, he sii ys he does not know, and
cannot tell, who fired the fii'st sliot. lie does say that when
the vision of Dutch John mot their eyes the defendant "jumped
behind witness and iuiviedlatehf (tiiat is, just after) "the firing
commenced." He also says that, immediately after the firing
ceased, defendant stooped down as if to pick up something,
and arose with something in his hand.

We do not think that this statement proves at all, certainly
not conclnsiv^ely, that deceased did iwt fire the first shot.
Either there must have been some reason for defendant's jump-
ing behind witness, and he must have picked up a pistol which
fell from the hands of deceased, or he was guilty of consum-
mate acting for the purpose of dec(?iving witness, and making
evidence to defend himself from the charge of murder which
he intended to commit.

It is difficult to believe that, on a sudden encounter, an}"^ one
would have such cool deliberation ; and it is much more rea.
sonable to believe that the seeking of safety by jumping behind
the witness was caused by some movement or other evidence
of hostile intent by deceased which escaped the less vigilant
eye of witness, and that it was the display of tli^ pistol Avhich
the defendant afterwards picked up. This latter vicAV is sup-
ported by other testimony, to be presently noticed. But it is
pertinent here to remark that both the effect of this witness'
testimony and his credibility were to be weighed by the jury,
and that doubt was thrown on the latter by showing that, in
the preliminary examination, he had made statements at vari-
VoL. IV -88

498

AMERICAN CRIMINAL REPORTS.

ance with what ho now stated, which were more favorahlo to
defendant.

Take all those to^^ether, and we think the court had no ri^^iit.
to assume that it was beyond doubt tliat defeiKhint had coin-
inenced the assault which resulted in d<^ath, by lirini;- tlie lirst
shot, without any cause, real or api)arent. In this we are con-
Hrmod by other parts ol' the testimony displayed in the bill of
cxcei)tio?i;-;.

It is nowhere asserted that defendant fired more than three?
shots. A witness, however, who was within lunirinfi^, swears
positively that he heard four shots. In agreeuKMit with this, it
is proved, without contradiction, that when dei'endaut was
arrested, immediately after the shooting-, tlireo pistols were
found on hiui. Of one of these, three l)arrels were em])ty; of
anothei", one; and the third was fidly loaded. The police
officer who arrested defendant says of these pistols: "Tlic
one identilied as Dutch -lohn's had one chamber empty; the
one identilied as IJean's had tlirce chamlKMN empty; and
the deri'in^^erwas loaded,'' It is a fair infer(Mu;e that the three
empty barrels were those lie liad dischar,<j^ed at deceased, and
that tlie other was the one he liad picked up after the shooting.
which had been in the hands of deceased.

AVhence comes tlr^ fourth shot, and who emptied the cham-
ber of dexjeased's pistol { That deceased luid a pi;>tol with him
is a concession uv.uh' by the jn'osccitin;^" attorney on the trial.
It will 1)0 seiMi, in the extract fr<»m the bill of exceptions fii-st
given, that the witness Ileslop testilies positively, that, just a
shoi't time before the shootin<»', the deceased showed him a pis
tol, which he tluni had on his person, while sittin<:;on a l)ox on
the side of the street opposite the sceiUM)f (he homicide; and
the prosecution admitted that this was after the deceast^d had,
been ojtx.'ted from the sidoon. Here, then, was a inan who had
a few hours or minutes l)ef(»re, had adilliculty. in which [)istols
were drawn; who was known to Ik? (*f desperate and vin<lictiv(?
character; who had shown a witness ii plsti>l within a few min
utes precculing- the fatal encounter, and that j»istol was, after
the encounter, picked up (m the sidewalk, where it oc(!urre(U
with a chamber em]>ty. Also, stronf]^ evith^nce to show that
one more shot was fired than defendant had fired. i»nd the
probability that it came from the pistol of deceased at tluit time.

WIGGINS c. PEOPLE.

490

!Now, when, under all these circumstances, the witness, and
the only witness who was present at the encounter, swears tliat
he cannot tell where the first shot came from, though he knows
that defendant only fired three, it must be very apparent that
if the person to whom tjie deceased exliiliited that pistol a few
minutes before the shootin*^ liad been permitted to tell the
jury that deceased tlien said " he would Icill defendant before
lie went to bed that night," it would have tended strongly to
show where that liret shot came from, and how that pistol, with
one chamber emptied, came to be found on the ground. This
testinu)ny might, in the state of mind ju-oduced on the jury by
the other evidence we have considered, have turned the scale
in favor of detendant. At all events, we are of opinion that in
that condition of things it was relevant to the issue, and should
have been admitted.

Judgment reversed, with directions to set aside the verdict,
and grant a new trial.

Mr. .lustice CMKroun, dissenting.

Murder is the charge preferred against the prisoner, Avhich,
at common law, is defined to be, when a person of sound mem-
ory and discretion unlawfully killoth any I'easonable creature
in being, and in the peace of the state, with malice aforethought,
either express or im])lied. Modern statutes defining murder in
many cases allix degrees to the offense, according to the nature
and aggravation of the circmnstances under which the act of
liouiicide is committed.

Oll'enses against the lives and persons of individuals arc de-
fined l)y the statutes of Utah as follows: Whoever kills any
human being, with malice aforethought, the statute of the ter-
ritory enacts, is guilty of nnu'der; and the succeeding section
of the same act ]irovides that all mui'der per])etrated 1\7 ])oison,
or by lying in wait, or by any other kind of wilful, deliljerate
and premeditated killing, or which is committed in the perpe-
tration, or attempt to perpetrate, any one of the offenses
therein enumerated, is murder of the first degree, and shall be
punished with death. Laws Utah, 51, c. 21, tit. 2, sees. 4, 5.

Pursuant to that enactnu;nt, th(^ grand jury of the third
judicial district, in due form of law, preferred an indictment
against the prisoner for the murder of John Kramer, charging

500

AMERICAN CRIMINAL REPORTS.

that he, the jn'isonor, did, at the time and in the manner nnd
by the means therein described, feloniously, wilfully, dnlil)or-
ately, prcmeditatedly, and with malice aforethought, kill and
murder the deceased, contrary to the form of the statute in
such case made and provided, and against the peace and dig-
nity of the people of the United States resident in the said
territory.

Sufficient appears to show that the prisoner was arraigiu^d
in due form of law, and that he pleaded to the indictment that
he was not guilty, as requu'ed by the statute of the teri'itory;
that, material witnesses for the prisoner being absent, the in-
dictment was, on his motion, continued to the next term of tlio
court. Both parties being ready at the succeeding term of the
court, the jury was duly imi)aneled, and sworn well and truly
to try the issue, as provided by law. Witnesses wore called
and examined by the prosecution and for the defense, and the
cause was regularly committed to the jury having the prisoner
in charge.

None of these proceedings are called in question; and it ap-
pears that the jury retired, and, having duly considered tlu>
case, returned into court, and gave their verdict that the
prisoner is guilty of murder in the lirst degree. Sentence in
due form of law was rendered by the court, as more fully
appears in the record; and the prisoner excepted to the rulings
and instructions of the court, and appealed to the supreme
court of the territory, as he had by law a right to do, where
the judgment of the subordinate court was affirmed. Laws
Utah, 6<{, c. 31, see. 5.

Error lies from that court to the supreme court in criminal
cases, where the accused has been sentenced to capital punish-
ment; and the record shows that the prisoner sued out a writ
of error, and removed the cause into this court. 18 Stat., 2.'>4.

Four errors are assigned in the transcript: 1. That the couit,
orred in affirming the judgment of the district court. 2. That
the court erred in holding that the affidavit offered to jH-oeure
a continuance Avas insufficient. 3. That the court erred in sus-
taining the ruling of the district court, that the uncommuni-
cated threats of the deceased, made in connection with the
exhibition of a pistol a short time before the homicide, were in-
admissible in evidence to the jury. 4. That the court erred in

WIGGINS V. PEOPLE.

501

overruling the exceptions of the prisoner to the instructions
given to the jury by the district court. •

Two of the errors assigned — to wit, the second and fourth —
liaving been a})andoncd licro in the argument for the prisoner,
the re-exaniination of the case will be confined to the third as-
signed error, as the only remaining one which deserves any
special consideration.

Exi)ert testimony, not in any Avay contradicted, was intro-
(hiced by the prosecnitor, to the effect that the witness saw the
deceased immediately after he came to his death, and he testi-
fied that he made a. poHt-movtem, examination of the body the
next day; that the deceased received two pistol wounds; that
one shot struck him in the side, a little back of a middle lino
from the hollow of the arm down and just at the border of the
ribs; and the witness stated that he examined that wound, but
that hp did not trace the ball, as the other wound was the one
tliat proved fatal; that the other shot struck him in the chin,
and that, ranging downward, it cut the external jugular vein,
tlic ball burying itself in the muscles of the shoulder, and that
the deceased bled to death from that wound; and the witness
added, to the effect that from the course the ball took, and the
wounds it made in its course, the deceased must have been
sitting at the time with his head bowed down and resting on
his breast.

Deatii ensued immediately, and the record discloses what im-
mediately preceded the homicide and what occurred at the
time it was committed. Beyond doubt, the homicide occurred
al)out 2 o'clock in the morning; and it is equally certain that
it was effected by the described shots from a pistol. Prior to
that time, — say about 1 o'clock or a little Liter, — the deceased,
with six or seven other persons, was in the saloon of the pris-
oner, and it api)ears tljat the tleceased and two of the others
lijid a difficulty, and that one of tlieui was struck over the
liead in tlie affray, llevolvers were drawn • by the deceased
and one Bean, when the prisoner interfered and took the
pistols from both of them, and in the scuffle struck the deceased
over the head. lie then put Bean out of the back door, gave
him his pistol, and told him to go home; and he put the de-
ceased out of the front door, and told him to go home. Half
an hour or more later the prisoner came dow n the street with
one of the witnesses for the prosecution, and when they

SOS

AMERICAN CRIMINAL REl'ORTS.

-:S*5-'!fr§|

arrived in front of the Salt Lake llouso tlio witness states that
lio saw deceased sittinj^- on tliu earria^^esleps of the liotel, witli
his face i-esting on his hands, appaiuMilIv in a stupor or itslecp;
that the prisoner jinn[)ed to tlie rear of tlie witness, and that
the lirin^t^ immediately connneneed; tliat tlie witnes.i did iiui
k)U)w, an<l cannot tell, wlio Hred the lirst sliot; thatat the lirsl
report lie, tlie Avitness, turned round imd saw tlic blaze of the
second shot from a pistol in the hands of the ])ris()iier. AVit-
ncss advanced to the carria<^c-steps, and lie testilles that he said
to the ))risoner, ''Jack, don't kill him," to which it seems no re-
sponse was ^iven. Instead of that, the prisoiu^r then jumped to
the carria<,''e-steps and fired nnother shot, wliieh,as the witness
states, [)assed right in fi'ont of liiin into the body of the de-
ceased. Something may b(> infeiTed as to its clfect from the
fact that the <leceiised I'aised his hands, as the witness states,
and that he heard him say, "Don't kill me, J am not armed."
Immediately after the tiring ceased the prisoner sIoojumI down
as if to ])ick up something, and when ho rose np the witness
lioticed that he had something in his left hand, but the witness
is not able to si:ite what it was.

Thre(! witnes.;es testify that there were three shots fired in
rapid siieeessi(m in front oF the hotel, and one of them st;ites
that he heard a fourlh shot failher down the street. Two of
the witnesses concur that the lii-st shot ranged from east to
west, and that the range of the other two boro a little to the
noi'tli of west.

Several witnesses were examined for the defense, and one of
them testified that the decoiised, when he was put out of the
saloon and told to go home, said he would go if the prisoner
would give him his gun, and that the i)risoner pushed him out
of the door and handed him his pistol, and that the deceased
remarked: "I will make it hot for yon." Testimony was also
given by another witness called for the defense, to the effect
that the deceased, aftei' he was ejected from the saloon, showed
the witness a pistol wh(>n he was sitting in front of a store
op])osite the Salt Lake House.

TvtO <]ucstions were asked the witness, as follows: 1. What,
if any, threats did the deceased make against the prisoner?
2. What, if anything, did the deceased say concerning the
prisoner ?

Objection was made to each question, and both were excluded

WIGGINS V. PEOPLE. WMk

by the court, and the prisonor excepted to tlio respective rul-
iii<^'S, lliul the quest i(jns bccu aduiitted, the prisoner expected
to ])rov(! tluit tlie deceiised made the threat that lie wouhl kill
the piist)ti(!r hi'l'ore he went to bed that night; but the defense
admitted that the evidence would not show that the pi'isoner
had l:.iowled,i>e of the threat at the time of the kiliiui,'. Due
exception was taken to the ruliui^, which is the basis of the
assignment of error not waived by the [n-isonei'. Evidence was
also inlroduced by the defense that the general character of
the deceased was bad, and that he was a (hmgerous, violent and
brutal man.

Subscxjuent to tlie jifTray in the saloon, and before the homi-
cide, the deceased had a conversation with another witness
called and examined by the prosecution. lie said that the
prisoner ha<l taken his pistol from him and beat him over the
head with it, and it appears that he showed the witness
the wounds in his head. About an lionr or kss after that inter-
vi(!W they met again, in front of the hotel, and walked up the
street together, and in the course of the conversation Avitli de-
ceased, witness asked him if lie was armed, and the deceased
gav(! the witness very positive assurance that he was not ; that he
had no weapon about him except a ]H)cket-knife, which ho
showed to the witness. Pi-esently the deceased left and went
down th(! street, and the witness, in about a minute, started in
the same direction, and as he passed the saloon where the affray
occurred, the prisoner came out and commenced conversing
with the witness. Among other things, he said that the de-
ceased and IJean had a dilHculty in his saloon, and that he
took their pistols away from them and beat them over the
head with the pistols; that he put one of them out of the back
(h)or, and the other out of the front door; that he gave Bean
back his ])istol, and told him that they could not have any
trouble in the saloon; that if there Avas to be any killing there,
he was going to do it himself. At that stage of the conversa-
tion the witness asked him what he did with the pistol of the
deceased, and the witness states that the prisoner pulled back
the lapel of his coat, and said: '* I have it here." Immaterial
matters are omitted. Suilice it to say, the prisoner proceeded
down the street, and the witness soon followed; and when the
latter got around Godbe's corner, he heard u shot fired, then

504

AMERICAN CRIMINAL REPORTS.

he turned and ran towards the hotel, and when he turned the
corner he saw tlie flash and hoard the report of two other
shots, and when he got in front of Hale's saloon ho heard an-
other shot farther down the street.

Four shots were heard ; and the witness, who was a ])oUoo
officer, states that when he came in front of the hotel ho was re-
quested to arrest tlie j)risoner, and that he ran towards the cor-
ner whore the prisoner was crossing and called to him to stop,
and that he came back, and that thoy started up the street, when
the following conversation ensued : I said, " Jack, I guess you
have killed Dutch John." Ho said, "If I haven't, I will."
When they got in front of the hotel, I asked him for his
pistol. lie handed mo one, saying: "That is IJill Ijoan's;"
and another, "That is Dutch John's;" and a third one, a sin-
gle-barreled derringer, and said: "This is mine." One cham-
ber was empty in the pistol idontitiod as Dutch John's, and
three chambers wore empty in the one identiliod as Uoan's, and
the derringer was loaded.

Questions of the kind involved in the single assignment of
error to be re-examined cannot bo uitdorstandMigly determined
without a chiiir view t)f what the state of the case was at tho
time the ruling was made; and inasmuch as it is the judgment
of the suiH'ome court of the territory to which the writ of
error is addressed, it seems to bo just and right that the reasons
which tliat court assigned for alllrming the judgment of tho
subordinate court should receive due consideration.

Enimgh appears to sliow that tho })risonor insisted that the
evidence of uncommunicatod threats should have boon ad-
mitted, because there is a conflict in tho testimony as to who
iired the first shot, and that the evidence of tho throats, if it
had been admitted, would have aided the jury in determining
that question. Influenced by that suggesti<m, the first stop of
the court, apparently, was to examine the evi(UMice roi)orted in
tho transcript; ami, having come to tho conclusion that there
is no conflict in the evidence as to Avho lirod tho fii-st shot,
th3y decided that the ruling of the district court excepted to,
in excluding the two (piestions as to tho throats, is correct.

Introductory to tha conclusion, they lind the facts to be,
that the deceased was sitting upon a carriage-step in front of
the hotel, with his hands up to his face and his head bowe<l

Iffil

WIGGINS V. PEOPLE.

506

down, apparently in a stupor or asleep, as the prisoner and the
night-watch came near, and that the prisoner, as they were
passing, jumped behind the witness, and that the firing imme-
diately commenced, the testimony of two witnesses being that
the firing was from east to west, and that the prisoner was
east of the deceased. Obviously, they regarded the statement
of the witness, that he did not know who fired the first shot,
as merely negative testimony ; for they proceed to state that
the positive testimony of tlie two witnesses, that the firing
was from east to west, showed that it was impossible that the
deceased should have fired the first shot.

In the next place they advert to the statement that the
[)risoncr stooped down, jut-t after the shooting, as if to pick up
something, and to the testimony of one of his Avitnesses, that
lie exhibited a pistol shortly before his death, and they remark
that tlie testimony, if no other facts were found, might tend to
])rove that the deceased had a ])ist()l in his possession, but that
it would not be sufficient to raise a doubt as to who fired the
first shot.

Kven conceding the truth of the testimony, they still were of
the ojtinion that the pi'isonor was the aggressor; but they pro-
ceeded to say that they did not think that the deceased even
had a pistol, and gave their i-easons for their conclusion as
follows: "His i)istol was in the hands of the prisoner just be-
fore and just after tlu^ killing, and if the deceased had a pis-
tol, as one witness testifies, shortly before his death, it is
evident that he did not have it when he was killed, for after
the first shot he threw uj) his arms and said, ' Do not kill me,
I am unarmed,' a thing which it is not reasonable to suppose
ho would have said if he had just fired the iirst shot; and, be-
sides, no such i)istol was found on his person or near him after
the killing." "If the prisoner had picked up an additional
pistol it would certainly luive been found upon him, but such
was not the fact ;" and they add, that " this second pistol, if
any existed, could not have been in the possession of the de-
(ioased when he was kilhid."

Suppose the facts to ho, as found by the supreme court of the
territory, then it follows that tliere was no evidence in the
case tending to show that the deceased was the aggressor, or
that tlie act of homicide was periietrated in self-defense, within

506

AMERICAN CRIMINAL REPORTS.

the principles of the criminal law as understood and adminis-
tered in any jurisdiction where our language is .s{)()ken.

Homicide, api)arently unnecessary or Avilful, is presumed to
be malicious, and, of course, amounts to murder, unless the
contrary appears from circumstances of alleviation, excuse or
justilication, and it is incumbent upon the prisoner to nudce out
such circumstances to the satisfaction of the jury, unless tliey
arise from the evidence produced against him by the prosecu-
tion. Fost. Or. L., 255; 1 East, P. C, 22i; 4 Bl. Com., 201;
1 Russ. C. 6c M. (4th ed.), 483.

Cases arise, as all agree, where a person assailed may, witli-
out retreating, o))pose force to force, even to the death of the
assailant; and otlier cases arise in which the accused cantujt
avail himself of tlie plea of self-defense, without showing tliat
he retreated as far as he could with safety, and tlien killed the
assailant only lor the preservation of his own life. Fost. Cr.
L., 275; 1 E;!st, T. C, 27T; 4 HI Com., 184.

Courts and text-writers have not alwavs stated the rules of
decision ap|)Iical)le in defenses of the kind in the same forms
of expression. None more favorable to the accused have been
promulgated ;',!iy where than thos(i which were adopted seventy
years ago, in the trial of Selfridge for manslaughter. Pamph.
Rep., 100.

Three propositions were laid down in that case:

1. That a man who, in the lawful pursuit of his business, is
attacked by aiu)ther, under circumstances which denote an
intention to take away his life or do him some enormous bodily
harm, may lawfully kill the assailant, provided In; use all the
means in his power otherwise to save his own life or prevent
the intended harm, such as retreating as far as he can, oi* dis-
abling his adversary w'ithout killing him. if it be in his |iower.
2. That when the attack u|)on him is so sudden, fierce; and
violent, that a reti'eat would not diminish but increase his
danger, he nuvy instantly kill his adversary without retreating
at all. ;>. That when, froni the nature of tlu; attack, there; is
reasonable ground to believe that there is a design to destroy
his life or to commit any felony u|)on his jierson, the killing
the assailant will be excusabU; homicide, although it should
afterwards appear that no felony was intended.

Learned jurists excepted at the time to the third j)roposition,

WIGGINS V. PEOPLE.

507

as too favorable to the accused ; but it is safe to affirm that
the legal profession liave come to the conclusion that it is sound
law, in a case wliere it is applicable. Support to that proposi-
tion is found in numerous cases of hlgli authority, to a few of
wliich reference will be nuide.

AVhen one without fault is attacked by another, under such
circumstances as to furnish reasonable ground for a])prehend-
ing a design to take away his life or do him some groat bodily
liarui, and there is reasonable gr<jUiid for believing the danger
invminent that such design will be accom])lished, the assailed
may safely act upon the appearances and kill the assailant, if
that be necessary to avoid the apprehended danger; and the
killing will Ix; justified although it may afterwards turn out
that the a])])earaiices were false, and that there was not in fact
either design to do him serious injury, or danger that it would
1)0 dcme. S/ioiic/' V. Pcoj>h\ 2 Comst., 197; Peojjh' v. McLeod,
1 Hill, 420; 1 Hawk. P. C, ch. !», sec. 1, p. TO.

Two other eases decided in the same state have adopted
the same rule of docision, and it appears to bo well founded in
roiison and justice. P(ittri<f<(ni v. /\'(>j/?e,4:C} Barb., OSa ; People
IK SiiUivKn, ;3 Sold., 400; Shite v. S/onn, 47 Mo., ('.12; Wliart. on
Homicide, 212; Sf((f<' v. Ihdyr,! Jones (N. C), 272; Com. v.
Dnint, 58 Penn. St., J».

Unless the party has reasonable ground of apprehension at
the time, thy justilicaticm will fail; it being settled law that a
hare fear, r.naccomi>anied by any overt act indicative of the
sui)[)osed intention, will not warrant the i)arty entertaining
such fears in killing the other party by way of precaution, if
tluu-e be no actual danger at the time. 1 East, I*. C, 272;
Ros. (Jrim. Ev. (7th Am. ed.), TOS; State v. Scott, 4 Ired., 401);
Sf^fe. V. //a./'r/'.s, 4 Jones, H»0; Dill v. State, 25 Ala., 15; Dyson.
V. State, 20 Miss., 302; l/olme.>< r. State, 23 Ala., 24; Carroll v.
State, 23 id., 33.

Two gi'ounds are assumed in support of the proposition that
the evidence of previous threats ought to have been admitted:
1. That itwouUl have conlii-med the other evidence introduced
by th(! ju-isoner to prove that he committed the act of homi-
(Mde in self-defense. 2. That it would have aided the jury in
determining which of the parties lired the lirst shot.

Kenuirks already made are sulficieiit to show that a bare

608

AMERICAN CRIMINAL REPORTS.

fear of danger to life, unaccompanied by any overt act or
manifestation indicative of a felonious intent to tluit effect, will
not justify the person entertaining such fears in killing the
supposed assailant. Such a defense is not made out, unless all
the conditions of the proposition before explained concur in
the immediate circumstances which attend the act of homicide.

When a person apprehends that another, manifesting by his
attitude a hostile intention, is about to take his life, or to do
him enormous bodily harm, and there is reasonable ground for
believing the danger imminent that such design will be ac-
complished, he may, if no other practicable means of escape are
at hand, oppose force by force, and may even kill the assail-
ant, if that be necessarj'^ to avoid the apj)rehended danger; but
he must act and decide as to the necessity and the force of
the circumstances at liis peril, and with the understanding that
his conduct is subject to judicial investigation and review.

Apply that rule to the case before the court, and it is clear
that there was no evidence in the case tending to show that
the prisoner killed the deceased in self-defense. Proof to that
effect is entirely wanting, and every attending circumstance
disproves the theory, and shows that such a defense, if it was
set up in the court below, was utterly destitute of every pre-
tense of foundation, as appears from the following circum-
stances: 1. That the prisoner was not alone. 2. That when
he, in com|)any with the night-watchman, approached the hotel,
the deceased was sitting on the steps asleej) or in a stupe )i', ap-
parently unaware of their approach. t5. That the prisoner
might have pass(;d on, turned back, or stood still, in iJerlVct
safety. 4. That if he feared anything his needful protection
was at hand. 5. That the deceased neither si)ok(! nor moved, and
was as harmless as if he had been inanimate matter. <J. That
the prisoner, better than anyone else, except the sleeping man,
knew that the deceased was unarmed, because lie, the prisoner,
had the pistol of the deceased in his own pocket. 1 Gabb. (/r.
L.' 490.

Viewed in the light of the attending circumstances, it is
anuizing that any one can come to the conclusion that there is
any evidence tending to show that the prisoner, as a reasonable
being, could have believed that it was necessary to take Die
life of the deceased in order to save his own life, or to sa\ c

WIGGINS V. PEOPLE.

509

himself from enormous bodily harm. Zor/m v. Com., 38 Ponn.
St., 205.

Stronger evidence of express malice is seldom or never exhib-
ited, as appears from the fact that he continued to lire after
the wounded man threw up his hands and cried out: " Don't
kill me, I am unarmed," and also from tlie fact that when tlie
police officer remarked to him, " Jack, I guess you have killed
Dutch John," he said, "If I haven't, I will."

Testimony merely confirmatory of a proposition wholly un-
supported by other evidence is not aduiissible as substantive
evidence. Grant that, and still it is insisted by the prisoner
that the evidence of previous threats made by the deceased
shoiild have been admitted to confirm the evidence introduced
by the prisoiier, to prove tiiat the deceased fired the first shot.

IMere theories are not entitled to consideration, unless they
find some support in the evid(Mi(!e. There is no evidence in the
case tending to show that the deceased fired the first shot, or
that he fired at all, or that he manifested any intention to offer
any violence whatever to the prisoner.

Two witnesses testify that the prisoner, when he jumped
behind the night-watchman, was east of the deceased, and that
the range of the firing was from tlio east to the west, fully jus-
tifying the conclusion of the court below that it is impossible
that the deceased should have fired the first shot.

Better reasons for tlu^ admissibility of the evidence must be
given than those suggc^sted in the preceding propositions, else
the assignment of crrois cannot be sustained, as it is clear that
the other evidence in the case discloses no I'eal theory of defense
which the excluded testiuiou}' would tend to confirm.

Some stress is laid upon the fact that one witness testified
that the deceased showed him a pistol after he was ejected
from the saloon; but the answer to that given by the court be-
low is quite satisfactory, which is, that the pistol of the de-
ceased was in the possession of the prisoner just before and
immediately after the killing, and that if the deceased had a
pistol, as the witness testified, it i<; evident he did not have it
when ho was killed, for after the first shot he threw up his hand
and said, " Don't kill me, I am unarmed." Declarations of the
kind, made i/i artlrnh mart /'n, are competent evidence; and,
there being nothing in the case to contradict the statement, it

510

AMERICAN CRIMINAL REPORTS.

is entitlocl to c:'oclit. 1 Greenl. Ev., sec. 150; Ros. Crim. Ev.
(Tth c(l.), 30.

Four shots were fired, and when the prisoner was arrested,
immcdiiitely after the liomicide, ho gave up three pistols to the
officer — liis own, the deceased's and Bean's. There was one
empty chamber in the deceased's pistol, and throe empty cham-
bers in lieau's, showing that the prisoner liad been in no danger
throughout, except from the multiplicity of lire-arms which lu;
had in his own ])ockets.

Attempt is next made in argument to show that evidence of
previous threats made by the deceased is admissible in behalf
of the prisoner, even tliough he did not introduce any other
evidence which it tends to conlirm, the sugg(>stiou being that
the modern decisions su])})ort tliat proposition.

Criminal homicide, in order that it may amount to murder,
must have boon ])ei'[)etratcd witli malice aforetliought; and the
prosecutif)n, to ])rove the ingredient of malice, may introduce
evidence of lying in wait, antecedent menaces, former grudges,
or any formed (h^ign or concerted scheme to do the deceased
bodily harm. Malice is the essential criterion by which mur-
der is dirftinguislied from manslaughter, and of course it must
be charged in the indictmi-nt and proved at the trial. Acts,
conduct and declarations of the kind, if done or made by the
prisoner, ai'c clearly admissible when oll'ered by the prosecu-
tion; but the case is generally ditferent when the eviilence is
offered in res])rct to the deceased.

Years ago, evidence was offered in a case of manslaughter
to show that the deceased was well known by the defendant
and others as a drunken, <piarrelsome man, but the court ex-
cluded the testimony, holding to the effect that the evidence
was inni!at(,M-ial, as it constituted no defense to the accused.
State r. FU'},1, 14 Me., 214.

Later, the defendant in another jurisdiction offered evidence
to [)rove that the deceased was a man of great muscular
strength, jiracticed in seizing persons by the throat in a ])e-
culiar Avay, Avhich Avould render them helpless and shortly
deprive them of life; but the court excluded the evidence, hold-
ing tliat tiie on'y evidence which was relevant and material
was the manner in which the deceased jissaulted the defendant
at the time of the homicide. Co)n. v. Mead, 12 (iray, 109.

WIGGINS V. PEOPLE,

511

Decided (;;ises, too numerous for citation, are reported, in
wliicli it is held that ovidcnce of tlic bad cliaracter of the de-
ceased is not admissible in an indictment for felonious homi-
cide, for the reason that it cannot have any effect to excuse or
palliate the otfense. lleported cases of an exceptional charac-
ter may be found, where it is held that evidence of the dan-
f^erous character of tlic deceased may be admitted to confinn
other evidence offered by the prisoner to show that the killing-
was in self-defense, ii Uishop, Trim. Proc. (2d ed,), sec. G27.

Difficult (piestions also ai-iso in other cases as to the admissi-
bility of previous threats made by the deceased. Judges and
text-writers generally agi'ee that such threats, not communi-
cated to the prisoner, are not admissible evidence for the de-
fense, where the cliargc is felonious homicide.

Courts of justice everywhere .agree that neither the bad char-
acter of the deceased nor any threats that he may have made
forfeits his right to life, until, by some actual attempt to execute
iiis threats, or by some? act or dcuu>nst ration at the time of the
kiUing, taken in connection with such character and threats,
lie induces a reasonable belief on the part of the sla3'er that it
is necessary to deprive him of life in order to save his own or
to |)revont some felony upon his person. Prlvhett v. State, 22
Ala., ;V.); (V>///, r. IIUJUwiK 2 (iray. 2'.)4.

Kxcei)tional cases arise where it is held that the evidence
should 1k5 rcH'eived as conrirnuitory of other evidence in the
case tending to su])[)ort the theory that the killing was in self-
defense. Cases of that character may be found where courts
have ruled that evidence of the kind may be admitted even
though the prisoner l»ad no knowledge of tlie stime at the time
of the allejicd felonious lunnicidc; but there is not a well-con-
sidored cjiso to be found anywhere, in which it is lield that evi-
dence of jtrevious threats is admissible as substantive proof
that the act of homicide was committed in self-defense, nor
which shows that such evidence is achnissilvic for any purpose,
whether the threats were known or unknown to the prisoner,
except to coudrin or explain other evidence in the case, tend-
ing to justify or excuse; the homicidal act, as having been com-
mitted in oi)posing force to force in defense of life, or to avoijl
enormous bodily harm. 2 Whart. Cr. L. (0th cd.), 1020 ; 1 Hale,
P. C, 481.

M-2

AMERICAN CRIMINAL REPORTS.

,' ■ :iS

Provided the uttering of the threats was known to the pris-
oner, the tendency of modern decisions is to admit tlio evi-
dence, even if the other evidence to support the theory of
self-defense is shght, and to exchide it in all cases where the
threats have not been communicated, unless the circumstances
tend strongly to inculpate the deceased as the first aggressor.
People V. Lamh, 2 Keyes, 4(50; Powell v. State, 10 Ala., 577;
Dupree v. State, 33 id., 380.

Examples, almost without number, are found in the reported
cases which support those propositions, to a few of which ref-
erence will be made.

Violent threats were made by the deceased against the
prisoner in the case of StoJces v. l^eople, 53 IS". Y., 174; and the
court held that proof of the same was admissible, whether
known to the jn-isoner or not, inasmuch as otlier evidence had
been given making it a question for the jury whether the
homicidal act was or was not perpetrated by the prisoner in
defending himself against an attempt of the deceased to take
his life or to commit a felony upon his person.

Authorities to sliow that fear only is not sufficient to justify
the taking of tlie life of another have already been referred to,
of which there are many more. State v. Collins, 32 Iowa, 38;
Whart. Homicide, 407.

Pursuant to that rule, it was held in the case of Xeicmmh v.
State, 37 Miss., 400, that the belief on the part of tlie accused
that the deceased designed to kill him is no excuse for the
homicidal fict, unless the deceased at the time made some at-
tempt to execute such a design, and thereby induced the
accused reasonably to believe that he intended to do so iumie
diatel}'. Hence, the court held that it w.as not com[)etent for
the accused to introduce evidence of an assault that the de-
ceased committed on him six weeks before, nor to give evidence
of previous uncommunicated threats, the other evidence sliow-
ing that the deceased at the time of the killing made no hostile
demonstration against the accused calculated to show that the
accused was in any danger of life or limb.

Actual danger of the kind, or a reasonable belief of such
actual danger, must exist at the time, else the justification will
fail. Repeated threats, even of a desperate and lawless man,
will not and ought not to authorize the person threatened to

WIGGINS V. PEOPLE.

513

take tlie life of the threatener, nor will any demonstration of
hostility, short of a manifest attempt to commit a felony, justify
a measure so extreme.

Keasonable doubt upon that subject cannot be entertained ;
but the supreme court of Kentucky decided that, where one's
life had been repeatedly threatened by such an enemy, and it
appeared that he had recently been exposed to an attempt by
tlie same person to assassinate him, an<l that the previous
threats were continued, the person threatened might still go
about his lawful business, and if on such an occasion ho hap-
pened to meet the threatener, having reason to believe him to
be armed an<l ready to execute his murderous intention, and if
he did so believe, and from the threats, the previous attempt at
assassination, the character of the man, and the circumstances
attending the meeting, he had a right to believe that the pres-
ence of his advereary put his life in imminent peril, and that
he could secure his personal safety in no other way than to
kill the suj)posed assailant, he was not obliged to wait until
he was actually assailed. Bohammoti v. Com., 8 Bush, 488.

Beyond all doubt, that is the strongest case to support the
tiioory set up for the prisoner in this case to be found in the
judicial reports, and yet it is obvious that it does not make an
approach to what is necessary to constitute a defense for the
crime charged against the prisoner in the indictment,

Exc<'pt wliere threats are recent, and where accompanied by
acts and conduct indicative of an intention to execute the
threatened |)urpose, the evidence of previous threats is not
admitted by the supreme court of Arkansas. Atkins v. State,
It! Ark., oSi; Pitman v. State, 22 id., .'>5T.

Where the evidence of previous threats is necessary, in con-
nection with the other evidence, to make out a case of self-
defense, the supreme court of Indiana hold that the evidence
is admissil)le. S/io/fer v. State, 37 Ind., (U.

Jurists and text-writers appear to concur that antecedent
threats aJfme, whether communicated oi* not, will not justify a
subsetpient deadly assault by the other pai'ty, unless the party
who made the previous threats manifests, at the time of the
act, a design to carry the thi'cats into immediate effect. I*eoj>/e
V. Si't'oygim, 37 C'al., <t83.

Argument to establish that projjosition seems to be unneces-
VoL. IV — 83

AMERICAN CRIMINAL REPORTS.

sary in this case, as tlio Icgislaturo of tlio territory have enacted
that a bare fear that a folony is about to be committed "shull
not be sullicient to justify tiio killing" in such a case. "It
must aj)])ear that the circumstances were sullicient to excite
the feai's of a reasonable person, and that the party killint^'
really acted under the inlluenco of those feai's, and not lu a
spirit of revenge," showing that the court below could not
have decided otherwise than they did without violating the
statute law of the territory. Laws Utah, p. GO, sec, 112.

Weighed in the light of the adjudged cases, it is clear that
the evidence of previous uncommunicated threats is never
admitted in the trial of an indictment for murder, unless it
appears that other evidence has been introduced tending to
show that the .act of homicide was committed in self-defense.
and that the evidence of such threats may tend to conlinn or
explain the other evidence introduced to establish that defense.
Society, in my opinion, is deeply interested that criminal jus-
tice shall be accurately and firmly administered; and, being
unable to concur in the opinion and judgment of the court in
this case, I have deemed it pro])er to state the reason for my
dissent.

People v. Davis.

(C4Cal.,440.)

Instructions : Reasonable douht.

1. The charge that the jury miist be satisfioil of the guilt of the prisoner "ho-

yond a re.isonablo doubt" is apiilieaVile to all criminal eas(>s as well
where the evidence is direct as where it is circiunstantial. In the lat-
ter case it is projier for the judj^o to further instruct the jury so as to
aid them in reaching a conclusion on the circumstances proved.

2. If any part of a singh; instruction ought not to bo given, tlie action of the

trial court in rejecting the whole will always be aflirmed.

W. A. Ham's and S. M. FranJd'm, for appellant.
Marshall, attorney-general, for res})ondent.

By the Court. Defendant was found gu'^ty of grand lar-
ceny on circumstantial evidence. Counsel for defendant re-

PEOPLE V. DAVIS.

615

qiiostod the court to charge the jury as follows : " The following
principle of law is of universal application m all cases based
on circumstantial evidence. It is not sufficient that the cix*-
cunistances ]iroved coincide with, account for, and thnrelore
render i)robable, the hypothesis sought to be established, but
the hypothesis contended for by the i)rosecution must be estab-
lislied to an ahuolute moral certainty, to the entire exclusion of
any rational prohahllUtj of any other hyjiothesis being true, or
the jury must llnd the defendant not guilty." The ofJ'ered iii-
struction was by the court rejected as "superfluous — included
in other instructions."

An insli'uction with reference to circumstantial evidenco
would not have been "superfluous." The charge, given in
din'f.ont foiins, that the jury must be satisfied of defendant's
guilt "beyond a reasonable doubt," is a legal pro])osition ap-
plicable to all criminal cases, as well where the evidence is di-
rect as where it is circumstantial, and the court might very
pro])et'ly have instructed the juiy fui'ther in such manner as
would have assisted them in reaching a correct conclusion upon
the ciroimfitnneen ]n'oved.

Tlie rule as laid down by Greenlcaf is : "Where a criminal
chai'gc is to l)e proved by circumstantial evidence, the proof
ought to be not only consistent with the prisoner's guilt, but
inconsistent with every other rational conclusion." 1 GreenL
Ev., § ;34. The rule was adopted and approved in People u.
jS-/n/trr, 2^ Cal., 400, and followed in Peoph i\ Strong, 30 Cal^
154. Ami in People v. Ant/ion;/, 5<] Cal., 400, this court held
an instruction not objectionable which read : " It is not suffi-
cient that the circumstances proved coincide with, account for,
and therefore render ])rol)able. the hypothesis sought to be es-
tablished by the prosecution, but they must exclude to a moral
certainty every other hypothesis but the single one of guilt,"
etc.

But Avhen it is urged here that the court below erred in re-
jecting an instruction recpiested, we ai-e justitied m reversing
the judgment only Avhen it appears that it was the duty of the
court to give tlie instruction exactly as rociucstcd. It has been
repcatidly hold that if any part of a single instruction ought
not to luive been given, the action of the trial court in reject-
ing tht whole will be affirmed; and this result must follow

AMERICAN CRIMINAL REPORTS.

when any part of a siny;l« instruction is so worded as tiiat it
may have a tendency to mislead tbo jury, as well as wiien
a part directly declares that to be law which is not law. A
philologist may be able to say that the word "absolute," in the
instruction rei[uested and rejected, adds no force to the words
•'moral certainty." But the Avord suggests a degi'ee of cer-
tainty greater thari tliat moral certainty which can be reiu'hcd
upon such evidence as is securable in courts of justice. If tlic
learned judge of the court below had stricken out the word
''absolute" we certainly couhl not have held that it was erior
on his part. It follows that it was not error to decline to giv(!
the instruction as it was present«Hl.

Judgment and order ajjinned.

State v. Balco.

(31 Kan., 405.)

Practice : Arguvient of prosecutor — Libel.

Prosectjtok should not comment on failure op refendant to tes-
tify. — In a riminal action, wliere the prosecuting attornoj', in niakin«
Lis argument to the jury, chiinis that the defemhmt is guilty J)ecausc lie
failed to testify in the case and deny the facts alleged against him. and
the defend.uit is, i^ftti wards found guilty by the jury, held, that for such
ii-regularity on the pjirt of the prosecuting attorney, the defend.-mt, oii
his motion, should be granted a new trial, and that a mere i" '
from the court to the jury, that the jury should not pay an dh

to what was said by the prosecuting attorney with regard to l nfend-
ant's failure to testify, is not sulKcient to cure the error conniui h d by
the prosecuting attorney.

PRIVILE(iES OF THE PRESS — GOOD FAITH OF PUBLISHER. — In a cHni-

hial prosecution for libel, evidence Wiis introduced tending to show tliat
the defendant, who wsis an elector of Chase county, Kansas, circniatcfl
an article among the voters of such county containing sonii' things tlmt
were untrue and derogatory to the character of the prosecuting wit-
ness, who was then a candidate for the otlice of county attorney of sai<l
county ; held, that if the supi)osed lil)elou8 mticle was circulated only
among the voters of Chase coimty, tuul only for tlie purpose of giving
what the defendant l)elieved to be truthful information, and only for
the purpose of enabling such voters to cast their ballots more intelli-
gently, and the whole thing was don«> in good faith, — such article was
privileged, and the defendant sluiuld l)e acquitted, although the princi-
pal matters contained in the article may have been untrue in fact, ami
derogatory to the character of the prosecuting witness.

STATE f. BALCH.
Appeal from Chase County.

617

S. jV. M'ood, Madden Bran, and ^Yaters c6 Ensv^inger, for
appoUants,

W. A. Johmtoii, attorney-general, and S. P. Young, for the
state,

Vai.entink, J. This -was a criminal prosecution against
George I'alch and R. ]\[. Watson for an alleged criminal libel.
The case was tried before the court and a jury, and the defend-
ants were found guilty and eacii sentenced to pay a line of
$10, and eacli adjudged to ])ay one-half the costs of the suit.
The defendants now ai)peal to this court.

The alleged lil^el was the circulation, on November (!, 1882,
in Cliase coiuity, Kansas, of the following printed article,
to wit:

" Voters of Chase County: The people of Chase county have
not forgotten the mutilation or changing of llie election re-
turns one year ago, and is it not time the people should know
wlio the parties Avere that made tlie clianges? The facts look-
ing in that direction have, as yet, never been made public, and
perhaps never will, but circumstances often show facts that
cannot be controverted, and in this case, if Mr. Norton was
guilty of the said mutilation, was not ]Vlr. Carswcll e(pu\lly
so^ It is said upon reliable authority that ]\Ir. Norton and
Mr. Carswell were together all the evening and the night this
deed was committed, in fact sh^pt together in Mr. Norton's
room in the court-house. If they were together, as it is said,
is it possible that ^Ir. Norton would do so dastardly a trick
without the knowledge and consent, if not the assistance, of
]\ri'. Carswell I Voters, think of this. Also, that it is a well
known fact that this said Carswell worked for and sufjported,
with all his might. Mr. Norton, for the oltice of sheriff of Chase
county. Can you consent to intrust in the hands of a charac-
tor such as an action of this kind would indicate, the most iin-
p >rtant ollice in the county, that of county attorney?

"Gkokoe Balch."

It appears from the evidence, among other things, as follows:
"That the defendant R. M. Watson was given the manuscript
from which the alleged lil)elous article was * set up ' and printed
by ont^ Harris; that the name of George Balch, defendant,

618

AMERICAN CUIMINAL REPORTS.

was signed tlicrcto ; that ncitlior the manuscript nor his sigmv
turo was in the handwriting of tho det'cndaut George ijak;h;
that dc^fendant "Watson set up tlic article alleged to be
libelous, printed it and delivered it, and gave all the printed
copies to the said Harris, and was paid for the same as a job
printer, which was the only connection ho was shown to have
had with the alleged libelous article; that the prosL-cuting wit-
ness, C. 11. Carswell, was at the time tho regular democratic
nominee for county attorney, to be voted for at the Novem-
ber election, A. D. 1.S82; that the prosecuting witne.w, Cars-
weU, did not procure, cause or know of the changes or
alterations made in the election returns, as stated in said
alleged libel; that the defendant George lialch admitted to the
prosecuting witness, Carswell, that ho had published said
alleged libelous article."

In November, 1881, the time rcfernid to in the alleged libol-
aus article, there were three candidates for sherilf — William
Norton, F, II. ijaiTington and the dc'IV'ndant IJalcii, — and llie
changes refen-ed to were niiule by taking votes from IJakli
and i>arrington and adding them to Norton. The evidence
furtluu* shows: "That i)ro.secuting witness, Carswell, sla did
to P. J. Norton, in the presence of oneC. lierst, that ' they iind
made too many changes from IJalch to Norton; that tliey
should have taken less votes from hiin (lialcli) and more iVoni
Barrington; that tho greenbackers were watching every vote
for their candidates;' that Jjalch, the defendiint, was at the
time greenback candidate for sheriff, and has be(?n at all times
and for years past a legal voter of Chase county, Kansas."

Tho defendant George I'alch did not ai)pear j'.s a witnes;;,
and did not testify in the case; and whether the defendant K.
M. Watson was a witness or testiiied in the case the reccji'd
docs not show.

After all tho evidence was introduced in the case, and aft(>r
tlio charge of the coui-t was given to the jury, the county at-
torney proceeded to make an argunu'ut in the case, when the
following proceedings occurred, as is shown by the i-ecord,
ivhich procee(|ings read as follows: "The o])ening aruunu'nt
of tho plaintilf was nuule by the county attoi'ney, who, in tiie
course of his remarks to the jury, said 'that it was in evidence
that tho libel charged in the information was circidated all

STATE V. BALCH.

619

i;u;

over tlio county with the name of the dcfcndnnt George
Etilch printtMl thereto; that tlie dofcuchmt Balch know it was
so circulated; that this tact made a prima fao/'e cix'io agamst
him; tliat tlio defendant Balch had not olFercd any testimony
denyin.>' that he signed and circulated the libel; that he had
failed to go on the witness stand [emphasizing and pointing to
the witness chair] and deny that he had not signed or circu-
lated tliat libel.' Here the county attorney was requested to
stop by defendants' counsel, who then and there excepted to
the remarks of said county attorney ; that upon the attention
of the court being called to the said remarks he informed the
county attorney that they were improper and could not be
made, and stated to the jury that they should not pay any
attention to the same; tliat under the law the defendants, or
cither of them, had a perfect right to refrain from testifying
witlio'it having the failure to testify commented on or even
alluded to by the state; that the jury would violate their duty
if tliev (considered at all the failure of defendant Balch to tes-
tify. That tlun-eap:)n the county attorney turned to the jury
and stated to them ' that he had forgotten, and had probably
gone beyond what he should have done,' and proceeded in his
argument without further allaaion to the defendant Ealch's
failure to testify."

There are several questions involved in this case, and some
of them are dillieult. The lirst question that we shall consider
is witli reference to the statement made by the county attorney
to the jury, calling their attention to the fact that the defend-
ant IJalch had not testified in the case and had not denied, as
a witness, that he had signed and circulated the alleged libelous
article. This statement was in violation of law, and under our
own statutes, and the decisions of other courts under similar
statutes, we think it will require a reversal of the judgment of
the court below and the granting of a new trial. Section 215
of the Criminal Code provides, among other things, that de-
fendants in criminal cases may testify in their own behalf if
they choose to do so; bat also provides "that the neglect or
refusal of the p(^rson on trial to testily . . . shall not raise
any |>rosumption of guilt, nor shall that circumstance be re-
f(MTed to by any attorney pros HUiting in the case, nor shall the
same bo considered by the court or jury before wh.om the trial

520

AMERICAN CRIMINAL REPORTS.

takes place." Laws 1871, oh. 118, sec. 1; Comp. Laws 1879.
eh. 82, sec. 215.

The decisions above referred to are as follows: Loncj v. State,
56 Ind., 182; .S'. O., 26 Amer. Rep., 19; Hatch v. State, 8 Tex.
Ct. A])p., 416; S. C, 34 Amer. Kep„ 751; Comm.onwe<ilth v.
Scott, 123 Mass., 239; S. C, 25 Amer. Eep., 87; Austin v. Peo-
ple, 102 111., 261 ; People v. Tijler, 36 Cal, 522; St<ite v. Giviham,,
decided by the supreme court of Iowa, October 19, 1883 (17
N. W. Kep., 192).

It must bo remembered that this statement of the county
attorney was not provoked or called forth by anythijv*,^ said by
the defendant or his counsel; nor was it said incidentally in
some argument addressed to the court; but it was said in an
argument addressed to the jury, and in an argument upon the
merits of the case, and for the purpose of intiueneing the jury
and obtaining from them a verdict that the defendant was
guilty of the offense charged. In all ]irobability this state-
ment was made innocently and inadvertently by the county
attorney, as he had been acting in that capacity only a very
short time, and tliis was among the first cases prosecuted by
him. But still the rights of the defendant cannot be igiioretl
or overlooked for that reason; nor can the principle be toler-
ated that convictions for violated law nuiy b(! ))r<)cured or
brought about by the inauguration and accoinplisluucut of
other violations of law. It is also true that in this casi; the
court below instructed the jury that the statenu'ut nuule by the
county attorney should not be allowed to work any pri^jiidice
to tlie rights or interests of tlie defendant. But, under tlu^
authorities, the evil done by such an infringement of the law —
an infringement of law by the prosecuting otlicer of the state —
cannot be remedied or cur<!d by any mere instructions from
the court. The only complete remedy, if the defeiidant is c(^ii-
victed, is to grant liim a new trial on his motion. Of coiu'se,
if he does not want the new trial, or does not make a nujtion
therefoi", lie should be sentenced.

The defendants also claim that the case was tried in the
court helow upcm an erroneous theory. The defendants aslced
the court to give several instructions to the jury, embodying
in substance the ])roposition that if the said su|)j)os(>d libelous
article was circulated only among the voters of C'hase county.

STATE V. BALCH.

521

and for the purpose of giving tliem truthful information con-
cerning the character of C. II. Carswell, who was then a can-
didate for the ottice of county attorney, and merely for the
purpose of enabling such voters to vote intelligently upon the
question as to who was the most suitable person to lill such
othce, and the same was circulated in good faith and for no
bad purpose, then that the defendants should be acquitted.
One of said instructions roads as follows: "(I) It is proper,
justifuible, and considered in law privileged, for any voter to
discuss publicly, in writing or orally, the qualifications, attain-
niouts, character and acts of any person who offers himself as
a candidate for a public office, and who as such candidate so-
licits the votes of voters for such oflfice. But such discussion
must be for the purpose of ascertaining the truth in relation to
such candidate, tiiat an intelligent ballot niay bo cast for or
against such candidate, and must be confined to such purpose,
and within roasonaldo limits; and if such discussion shall be
actuated by malice, or for the purpose of injuring such person,
it cannot be considered justifiable or privileged."

The court I'cfiised to give each and all of the instructions
asked for by tlie defendants; and, in lieu of the instructions
asked for by the defendants, gave the following instructions:
" Ihit it is projx'r at this jwint to instruct you that the general
rule that the law ])resumos malice from the fact of the publica-
tion of libelous matter, unless truth and good motives are
shown, is subject to some exceptions. The law recognizes, under
certain peculiar circumstances, what ace termed privileged com-
municati<ms, — that is, certain communications which in their
nature and circumstances are such that, although containing
d(ifamatory matter, they are hold in their general tendency to
be bonoticial rather than hurtful, if made honestly, and with a
view to the public welfare or advantage, and for that reason
the rule is n^laxed as to tlie inference of malice from the
fact of publication. Somewhat of this nature are fair and
pertinent criticisms on the (pialilicationsof candidates for office,
addn^ssod to the electors whose votes the candidates ask. Tlio
true test of such cases is the good faith and honesty of the pub-
lication. AVas it made for tlu> piildic benefit, or was the occa-
sion simply a cloak to cover malice^ Malice in such cases need
not be hatred or ill-will, but any nn-kless or wanton disposition
to do a wrongful act without excuse or justificati(m."

523

AMERICAN CRIMINAL REPORTS.

Prior to tlie giving of the foregoing instructions the court
hiul given all necessary instructions with roft'icnce to the gen-
eral law of libel, and the law of this case, except tliat it luul
not given any instructions with rctercnce to privileged com-
munications or conditionally-privileged communications. Tlieso
yivior instructions, without the modilications contained in these
subsequent instructions, would have icijuired the jury to llnd
the defendants guilty. They were, in substance, tluit, if tlie
sujjposed libelous matter contained in said circular was dcfam-
iitory and untrue, malice should bo pi'esumcd, and the defend-
ants found guilty, notwithstanding the fact that the publication
thereof might have been in good faith, and the defendants
might have believed the same to be ti'ue. And thcsubi,e(pieiit
instructions above quoted, relating to privileg(>d communica-
tions, were given as modilications, explanations, limitations or
exceptions to the rule of law previously enunciated. The court
itself seems to call them " cxcej)tions." It is dilllcult to say
that the instructions of the court below arc erroaeous; and
yet that portion of the instructions relating to privileged com-
munications is so vague and indelinite as i!ossil)ly to i'end(M- tlio
entire instructions, taken as a whole, misleading, delusive; and
erroneous. The court docs not say that any communicalicjns
may ever bo so privileged as to overturn the rule of ])resimip-
tive malice, or to render such rule; inapplicable or not relevant
under the facts of the case; but the coui-t simply s:iys that in
s;)me cases, and under " jieculiar circumstances,"' " the rule is
relaxed." Neither does the court say in express terms that the
communications might under any circumstances be so |)iivi-
legcd as to authorize an acquittal of the defendauls. ^'ouu'-
thing of this kind, wo thiidc. ought to have becMi said. 'J'lie
instructions with regard to constructive or pr»^sumptivi> malid^
recpiired it, and the instructions with reference to pi-ivih^ged
communications should have I)een nuido more explicit and
delinitc than they were. If the supposed libelous article was
circulated only among the votei's of Chase county, iind only
for the purpose of giving what the def(Midants believed to ho
truthful information, and only for tiio ])urpose rtf cnablin;;' such
voters to cast theii- ballots more intelligently, and the whole
thing' was (lo?ie in good faith. W(» think the article was ]ti'i\i-
loged and the defeiidiints should have been aeipiitled. allhougli
the principal uuiW.ers (fintaim'd in the arliele were untnu! in

EX PARTE SONTAG.

523

fact, and (lorofi:atory to tlic charactor of tlie prosocutlng wife-
iiL'SS. Sco Touush. Shuul. 6i Lib., fJ.^ ^41, 24^, 244:, 247, 200; 2
Wliart. Criin. Law (8th cd.), § 1G3G; 1 Kuss. Ci\, 244, 245;
Com. V. Chipj), 4 j\[ass., 103; Sweeney v. B.tker, 13 W. 'Va., 100,
183; 8. 6'., 31 Ainer. IJcp., 758, 75'J; Wh'dc v. Nicholls, 44 U.
S. (3 How.), 200; Brow v. Hatlumay, 95 Mass. (13 Allen), 231);
LewiH v. dnqmuin, 10 K Y., 309; 'KJ'incU v. CoHy, 4!'. K. Y.,
427; note to 2litn8te)' v. Lomh, 23 Amor. Law r.eg. (N, S.), 22
ct scq.; Bi'Hjfjs v. Garrett, 18 Cent. Law J., 109, and note, ])ago
112. Generally, we think, a person may in good I'uith ])ublish
whatever he may honestly believe to be true, and essential to
tlie protection of his own interests, or the interests of the per-
son or persons to whom lie makes the publication, Avitliout
committing any public oll'ense, although what he publishes
may in fact not be true, and may be injurious to the character
of others. And we further think that every voter is interested
in electing to oflice none but persons of good moral character,
and such only as are reasonably qualified to perform the duties
of the ollice. This applies with great force to the election of
county attorneys.

Willi the view that we have taken of the questions already
discussed, it is not necessary to discuss any of the other ques-
tions raised in this case.

The judgment of the court below will bo reversed, and causo
remanded for a new trial.

(All the justices concurring.)

Ex Pautb Sontao.
(C4Cal., 525.)

Practice: Grand juror.

A grand juror cannot be foiupcUod to disclose liow bo Ci- any otbcr juror
voted upon an indictni(!nt, but be may be re luireJtogivo tlio testimony
of a pai'ticular witness in a matter before tbem.

In Bank.

Darwhi <('; Murphy, for petitioner.
Tyltir tC' Fhiornoy, for r(>s|)ondent.

U i

524

AMERICAN CRBIINAL REPORTS.

<i%'

McKiNSTKY, J. The petitioner was committed to prison by
the superior court, as being guilty of contempt in refusing to
answer the question (upon motion to set aside an indictment)
whether he as grand juror voted for ihiding the indictment.
The form of the oath in general use for centuries binds the
grand juror to preserve inviolate the secrets of the grand jury
room. Public policy would seem to forbid vain disclosures
made to gratify idle curiosity. " Eut," says Thompson and
Merriam, " when for the purposes of public justice, or for the
protection of j)rivate rights, it hecmncs neces,sa)'i/, in a court of
justice, to disclose the proceedings of the grand jury, the better
authorities now hold that this may be done. It is obvious that
there are certain transactions of the grand jury room which it
can never be for the interests of justice to disclose ; for examine,
what jHniicuIar J u?'o/'« concnvred in or oi)posed the finding of
the indictment, what opinions were expressed by various mem-
bers of the body. In res])ect to such matters the injunction of
secrecy may well be perijctual." Thouip. it ^I. Jur., § 703.

The furthest any of the cases cited In' the text-writers, from
whom we have (pioted, have gone towards permitting an in-
quiry by means of the testimony of grand jurors themselves
into the mode of finding an indictment, is to allow the ques-
tion, did twelve grand jurors concur in finding the indictment?
Thus, in Loio^s Came, 4 Me., 431), that question was pei-mittcd,
but both the judges wlio delivered opinions in that case were
careful to exclude any infei-ence that it would be pi'()))er to in-
quire how a particidar juror voted. Weston, J., said: "The
oath of the grand juror reipiires him to keep secret the state's
counsel, his fellows', and his own. Of this character may be,
Avhat particular jurors agi-eed or dissented upon tlie (piestions
whether a true bill or not. . . . But the fact wlietiicr twelve
or more concurred or not in the bill is not a wcfet. It is a r< -
suit which they are required, through their organ, the forcniaii,
to make known." And Preble, J., added: "■ Iloir juiy juror
voted is a secret no juror is permitted to disclose; but wlietlici'
twelve of their number concurred in finding a bill in not a
secret of the state, their fellows, or their own. It is a fact they
of necessity profess to disclose every time tliey ])roniulgate
thfir decision upon any bill laid before them." The supremo
court of Maine in effect lield that the fact whether twelve con-

EX PARTE SONTAG.

525

ciuTcd in finding an indictment could be inquired into by tbe
testimony oi tlio grand jurors, on motion, but that, in pursuing
siicli in(]uiry, the grand juror couhl not be required to state
whether he voted for or ngainst the indictment. In other
courts, however, the inquiry has been limited still more. " By
such courts grand juroi's will not be permitted to testify
whether thoy voted at all, how they or their companions voted,
or whetlier twelve concurred in the finding." Thomp. «fe M.
Jur., § 7(»-t, and cases cited in note,

Xo case has been called to our attention in which it has been
held that a grand juror could be compelled to answer how he
voted with respect to tlie finding of a particular indictment.
In this state the whole matter is regulated by statute. The
oath of the grand juror is: "You will keep your own counsel
and that of your fellows and of the government, and will not,
except when recpiired in the due course of judicial proceedings,
disclose the testimony of any witness examined before you, nor
anything which you or any other grand juror nuiy have said,
nor the manner in which you or any other grand juror may
have voted on an}' matter before you." Penal Code, 903.

Secti(m 1)20 of the Penal Code reads: " Every member of
the grand jury must keep secret Avhatever he himself or any
other grand juror mav have said, or in what manner he or anv
other grand juror may have voted on a matter before them;
but nuiy, however, be required by any court to disclose the tes-
timony of a witness examined before the grand jury, for the pur-
j)ose of ascertaining whether it is consistent with that given by
the witness before the court, or to disclose the testimony given
before them by any person, upon a charge against such person
for perjury in giving his testiuumy upon trial therefor."

Section l»20 specifies the exceptional cases in which a court
may re([nire a grand juror to disclose any matter transpiring
in the jury-room, and provides that lie must keep secret other
nuitters, including "in what manner he or any other grand
juror may have voted on a nuitter before them." Eeading
together sections 1>(>;{ and i>2(», it is a])|)arent that the excep-
tion stated in the fornun- section isinteiuled to apply only to the
clause which innnediately succeeds it — "You will not, except
v'lii'i) /v'(/*<//r</ in the due course of judicial proceedings, disclose
the testimony of any witness examined before you, nor [will
you disclose] anything which you or any other grand juror may

5iiG

AMERICAN CKIMINAL REPORTS.

I'.ave said, nor tlie manner in Avhich yon or any other gi-jind
jnror may liavo voted," etc. Thus road, the ;iulm'i>ti:/U section,
920, may bo given its ctTect; tlie last chiuso s]),"cifyin,';^ the
matters with rer.pect towhieh a grand jnror /iiff;//)e tvj n >'/•/'// io
make diseh)sui'e "in the due course of judicial ])roceedings."
The inquiry must be confined to such matters, that is to say,
the grand juror can only be required to state what was the
testimony of a Avitness examined before the grand jury.

It has been argued with much ingenuity that the i)i'ovision
of the law "which authorizes a motion to set aside an indict-
ment Avliero it has not l)een " fouiul "' as i)rescribe(l by the code
is of no benefit to a defendiint unless he is permitted to prove
that it was not duly found by the testimony of the grand jiuors
themselves, who are alone pi'csent when an indictment is voted
upon. Penal Code, 91)5. It is contended that the right to
move on the ground that the indictment was not pi'o])erly
found necessarily includes the right to prove the fact by liio
testimony of those only who can know the fact. IJut there
arc many legal rights which cannot be established by certain
witnesses. Thus it is well settled that a petit juror cannot im-
peach his verdict, although a defendant nuiy move for now
trial on the ground of unfaii'uess in its rendition. P<;nple v.
Wi/man, 15 Cal., 70. AVc can imagine cases in which it might
be possible to prove that less than twelve voted for an indictment
without resorting to the testimony of the grand jurors them-
selves. The mere inconvenience or diiliculty of proving the fact
ought not to overrule the many grave objections to a procedure
not only not directly authorized, but expressly forbidden by the
code, which may interfere with the coui[)lete freedom of ex-
posure of alleged oifensos which it is the design of the inUit'.i-
tion of grand juries to secure, and con'.lict with other )>rineiples
of public ]>oliey, which are subserved by keeping inviolate the
secrets of the grand jury room — exc(^pt when their disclosure
is absolutely necessary. Xo serious injury can arise from pro-
hibiting the question asked the petitioner. The cases must bo
rare, indeed, in which a forenmn will dare altem[)t to practice
fraud upon his fellow juroi-s by indorsiug and presenting a bill
not in fact foiuul, and if siieli a fraud is praxstieed tlui law will
provide a proper punishment by direct proceedings against the
party guilty of the fraud.

Finallv. as said bv Ilvliind. J., in Sf,tf,> r. Bdh »'. '20 Mo..

J-|v,

PEOPLE V. REESE.

627

oJ58, an innocont porson will not bo injured by limiting the in-
([iiiry, for he can always vindicate himself in a trial on tho
merits.
Let tho petitioner bo discharged from custody.

People v. Reese and others.

(2 Pac. Rop. (4 Utah), Gl.)

Practice: Juror — Waiver.

Wlicro, in a criminal procotHlinp:, a man prosents him:^olf in court in obedi-
ence to a siiu\nions requiriiij; Iiiiii to api;e!ir as a juror, and stat< s thrt
lie is a citizen of tiie United Stales, and the defendant h:is no reason to
doulit the truth of tlie statv>inent, tho riglit to a jury of tswlve eitizcr.s
of the United States is not waived by an examination of tlie in'oixwcd
juror touching his other (|ualirications. If, after verdict, the defendant
learns that the juror was mistaken, and that lie was not a citizen of
the United States, ho is entitled to a new trial, it not apjK'aring that
there was any negligence on the part of t!ie defendant that would work
a waiver of the constitutional riglit to a proper jury. A defendant has
the right to presume tliat none but the naaies of citizens of the United
States arc upon the list from which jurors ai-e drawn.

P. J. F«?i Zz7<?, for the people.
Suthedand c£' McJJride, for appellant.

Twiss, J. The indictment in this case charges the defend-
ant, Ellis lieesj, and four others, with the crime of house-
breaking. Upon the trial there was a verdict of guilty. Tho
detendants lilcd a motion for a new trial, based upon several
groumls, one of which was that Joseph S. Morris, one of tho
jury befoi'o which the defendants were tried, was not a citizen
of the United States. The allidavit in support of tho motion
also stated that neither of the def(>ndants knew or had reason
to believe that Morris was not a citizen, until after the verdict.
These statements were not denied by the prosecution, but were
admitted to be true. The juror, upon his examination under
oath as to his qualilications, said he was a citizen of the United
States. The motion for a new trial was overruled, and judg-
ment was rendered on tho verdict. The defendants appealed
to this court.

528

AMERICAN CRIMINAL REPORTS,

Tlie only c|uesti()Ti before us is, Did tlio court below err in
overruling tlie motion^ The act of con;L,'re.ss, approved June
23, ISTl, commonly known as the Poland bill, provides tlmt
the clerk of the district coiu't in each judicial district, and the
judge of })rol)ate of the county in whicli the district court is
next to be holden, shall prepare a jury list of two hundi'ed
names, citizens of the United States, from which j^rand and
petit jurors sliall be drawn. The criminal procedure act of
this territory provides that "every male citizen of the United
States is an eligible juror, who is over twenty -one years of
age, and who possesses certain other tpialifications specifically
stated." The jui'ors being drawn from this list, prepared in
the light of these two statutory [)rovisions, a defendant may
reasonably presume that the names of none but citizer.s of the
United States are ui)on it, and we are of the opinion that wlicu
a man presents himself in court, in obedience to a summons
requiring him to aj)pear as a juror, and, in answer to a (|iies-
tion put to him under the direction of tlic court as to his
qualiiications as a juror, says he is a citizen of the United
States, and the defendant in a criminal cause, charged witli
a felony, has no reason to doubt tiie truthfulness of said state-
ment, such defendant may examine such jiu'or as to his (p;ali-
lications inider tlie territorial statutes without further refei'entc
to the primal or fundamental qualilication of citizensliip, al-
though after the verdict he may learn that the jiu'cn- was
mistaken in his statement, and that in fact he was not a citi-
zen, and not thereby waive his right to a trial by a constitu-
tional jury of twelve men, possessing the qualiiications of
citizenship. Hill v. I^eople, IG Mich., 351; Quhi/i v. IlaUnrt,
52 Vt., 3(»5. As there was not only no intention to waive
this (pialification, but no negligence or want of watchfulness
on the part of the defendants, which ordinarily would work
a waiver of a right, we cannot hold that the facts in this
case are such as should dei)rive the defendants of this impor-
tant constitutional right.

The court is therefore of the o[)inion that the motion for a
new trial ought to have been sustained and a new trial granted;
that the judgment of the district court l)e reversed, the case
remanded, and a new trial ordered.

i:r;;

STATE V. MOSLEY.

529

State v. Moslet.

(31 Knp., 355.)

Practice : Principal and accessory — Retnarks of prosecutor.

1. The statute authorizes the charging of an accessory before the fact aa a
principal. State v. Cassadij, 13 Kan., 550.

'i. Upon tlie trial of an accessory l)ofore the fact, the record of the conviction
of tlie principal is proof i^rima facie of that fact ; hut this is not con-
clusive, and other evitlenco of the commission of the crime by the prin-
cipal is admissible.

3. Upon the trial of a defendant charged with a criminal offense the latter
rested without testifying. Tiio state introduced a witness and offered
to i)rovo certain facts, to which the defendant objected as not being
l)r()i)er rebuttid. Thereui)on the county attorney said to the court, in
the hearing and presence of the Jury: " Your Honor, we liad a right to
presume that the defendant would testify as a witness in his own behalf,
in which case this evidence would have been proper rebuttal, and, he
having failed to do so, we claim the right to introduce it now." Held,
that these remarks to the court were not such an infringement upon the
statute forbidding the prosecuting attorney to refer to the fact that the
ilefeiulant did not testify in his own behalf as requires us, under the cir-
cumstances of this case, to grant a new trial.

Ajipcal from Lyon County.

W. A. Jolniston, attorney -gen oral, J. Jay Buck and ./, W.
F< Ighnn, for tlie state.
I^eyto)), Sanders tt? Peyton, for ap[)ellant.

IIoKTON, C. J. On June 5, 1882, Mary Isabel Martin and
her son, E. D. Afosley, were Jointly cliarged witli the murder
of Loraine M. Iveiger, avIio died May 28, 1882, from the effect
of ])oison. The trial of Mary Isabel ]\Iartin, the mother, was
commenced on June 12, 1882. A verdict of guilty of murder
in the lirst degree was rendered against lier, and on Decem-
ber 29, 1882, she was sentenced. The defendant Mosley was
tried in February following, and convicted of murder in the
first degree for counseling, aiding and abetting his mother in
the commission of the murder of Mrs. Keiger. Upon the trial
the record of the conviction of JVIary Isabel Martin was intro-
duced in evidence, and the court also permitted witnesses to
testify to statements made by her a half hour after Mrs. Keiger
died, tending to show she was guilty of poisoning her. The
court instructed the jury that the record of the conviction of
Mrs. Martin was prhna facie evidence of her guilt. All of
Vol. IV — 84

ci ■;■-:)

530

AMERICAN CRIMINAL REPORTS,

these rulings are complained of. Tbo objections, liowevoi",
are unavailing. Section 287, cli. PA, Coinp. Laws 1ST!>, roads:
"Every person who shall ho a principal in the second device
in the commission of any felony, or who sliall be an ae-
cessory to any murder or other felony bel'oi'e the fiutt, shall,
upon ccmviction, be adjudged guilty of the oU'ense in the same
degree and punislied in the same manner as herein prescrilu'il
with resp(^ct to the principal in the first degree." And section
115, ch. S*2, Comp. Laws 1ST!>, provides: '' Any jxM-son who coun-
sels, aids or abets in the commission of any oU'ense may ho
charged, tried and convicted in the same manner as if he were a
principal." AVhile these sections of the statute auth<tri/.ed tlie
chari!;in<x of defendant — an accessory Itefori! the fact — as a
principal, to convict him it was necessary to establish that tlio
mother, Mary Isabel Martin, had poisoned the deceased, li
was not error to allow facts to ?)e sliown on the trial, there-
fore, tending to prove tiie guilt of tlx^ priiu-ipal, ^lary Isahel
Martin. Sfatc v. Caxxitthj, J '2 Kan., .'».")(). The j-ectml show-
ing her conviction was proof itr'ivia j\me of that fact, but this
was not conclusive, and other evidence of the commission of
the crime by her Avas admissible, [jvij t. J^cojile, 80 N. Y..
.327; AntohJ r. Sfate, 9 Te.K. Ct. Apj)., 4;}."i.

Upon the trial, after the defendant had rested without testi-
fying, the state introduced a witness, — one ^larsli, — and of-
fered to prove certain facts, to which the defciulant objected
as not being proper rebuttal. ThereujxMi the comity attorney
said to the court: "Your honor, we had a right to presiiiiio
that the; defendant would testify as a witness in his own beliaU',
in which case this evidence would liuvo been projier rebuttal,
and he having failed to do so, we claim the right to introduce
it now." It is claimed that in using this language to the court.
in the hearing and presence of tlui jury, tlie county attorney
was guilty of such misconduct that wurrantij tlie granting of a
new trial. This claim is made under the ))rovision of section 1,
ch. 118, Laws 1881, which reads: " And provided further, tlial
the neglect or refusal of the person on trial to testify, or of a
wife to testify on behalf of her husband, shall not raise any
presumption of guilt, nor shall the circumstance be rcl'ened
to by any attorney prosecuting the case." " The neglect or
refusal " of the defendant to testify was not referred to by the

STATE V. MOSLEY.

681

county attorney, except incidentally to the judge of the court,
in his argument favoring the introduction of evidence. Wo
understand the statute is explicit that when a defendant, in a
criminal cause, declines to testify in liis own behalf, absolute
silence on the subject is enjoined on counsel in their argument
on the trial, and that the courts will hold prosecuting attorneys
to a strict observance of their duty in this respect {State v.
(imham, 17 N. W. Kep., 192; Long v. Stat<;, 15 Ind., 182; Cam.
V. Scott, Vl^ Mass.. 215!)); yet we do not think the incidental
allusion to the court by the county attorney, under the circum-
stances, was such misconduct as requires us to grant a new
trial. The remarks of the county attorney were not made in
an address to the jury, were not directed to the jury, nor in-
tended for the jury. It is possible, and more than probable,
that the members of the jury lieard the renuirks, as tliey were
uttered in their presence, but the county attorney evidently did
not intend to infringe upon the ])rovisions of the foregoing
statute, and we cannot rcgai-d his remarks, made as they were,
as mato'ial ei-ror. Call-'niK n. State, IS Ohio St., 3GG. An ex-
amination of the atndavits does not satisfy us that the county
attorney, in his closing argument to the jury, referred to the
defendant's failure or refusal to testif}' in his own behalf. The
language of the county attorney was concerning the trial of
Mary Isal)el Martin, and the failure of her son to testify as a
witness in that case. This was made in ansvcrto the remarks
of one of the attorneys for the def(Mulant tnat the latter was
not present, aiul had not testilied on the trial of his mother,
and therefore her conviction should not be conclusive of her
guilt against him.

In view of the decisions of this court in State v. Kcarley, 20
Kan., 87, and State v. BrhhjcH, 29 Kan., 138, nothing further
need be said regarding the refusal of the court to delino the
phrase " reasonable doubt." AVe have already held that thei'e
was sufHcient evidence to warrant the jury in iinding Mary
Isabel Martin guilty of the nmrder of JNIrs. Keiger ^State v.
Martin, ante, 781), and we cannot, upon the record, say that
there was no evidence in this case to sustain the verdict against
the defendant.

The judgment of the district court must be affirmed.

(All the justices concurring.)

533

AMERICAN CRIMINAL REPORTS.

Oliver v. The State.

(45 N. J., 46.)

Rape: Caitial knmeledge of female child under ten years — Consent no de-
fense — Evidence — Instructions.

1. Consent of female child undeu ten years no defense. — Upon trial

of an indictment for abuse and carnal knowledge of a female cliild
under the age of ten years, it is not error to refuse to charge the jury
that, in order to convict under a count for indt'cent assault, the evidence
must satisfy the jury that the accused conunitted the alleged indecent
act against the will of the child.

2. There may he submission by a child of tender years without legal con-

sent.

8. Testimony of witness not excluded because coxtuadicted in part.—
It is not error to refuse to exclude the whole testimony of a witness I'r ni
the case, because parts of his evidence are contradicted by other wit-
nesses.

4. Charge of the court to the effect that the accnscMl was to be considered
innocent until proved guilty, and that if there was reasonable doul)t,
and the disclosures did not satisfy the jury of his guilt, they should
acquit him, is sufluncnt.

J. IT. Gd-iUfl and M. R. Soot/, for tlie plaintiflf in error.
C E. Ifcndrhihmn, for the state.

The oDinion of the court was dolivorod by

Parker, J. The record sliows tliat the plaintiff in error \v;is
indicted for assault and carnal knowledoe of a fcmah^ cliild
under the aiie of ten years. There were counts for abusiuii'
and knowino^ the child without her consent, and other counts
charoino; such abuse and knowledoe with her consent. TIk!
la; t count charged an indect^nt assault. There was a general
verdict of <^uilty as charj^ed.

There are numerous cxce})tions on which error has been as-
signed, but those relied upon to revei'se the judgment relate to
the charge of the court an<l refusals to charge.

Tiie lir.st three requests were charged in a modified foi-ni.
The modifl(!ations made by the court relate to the degicM'
of penetratitm, and state cori-ectly the I; • on that subject.
liegina •}). JJp-'.s, 1 (\ tfc K., .'>'.»,".; Rnjlna v. JlmjIhK, V. <k I*.,
752.

The fourth projjosition was chargc^l as requested by counsel
of the accused.

OLIVER V. THE STATE.

533

The court refused to charge the f/th and sixf/i requests, and
in so doing it is insisted that the court erred.

By the Jifth request the court was asked to charge that, in
order to convict under tlie count for assault, the evidence must
satisfy the jury that the accused conunitted the alleged in-
decent act wjaind the lo'dl of the child.

This the court refused to charge, and in such refusal there
was no error. An act such as is charged in that count, cotu-
niitted upon a child of such tender years, is criminal whether
Avith or witliout her consent. Legally she had no will to resist
or consent.

Tlu^i'e may be actual submission of a child with«)ut consti-
tuting legal consent, lughni v. Jhri/, 9 C. (k P., 722.

That case a})])lies directly to the (juestion now before the
court. The counsel for the prisoner in that case contended
that the count being for assault, consent or non-c(nisent on \)nvt
of the girl, although she was of tender years, was material,
iuid that if she olfered no resistance, but submitt(>d quietly,
it nuist be taken that she was consenting to the act, aiul that
tiie ]»ris()ncr shouhl be accpiitted. l>ut the court refused so to
charge, and said tliat the nu're submission of a child when in
the power of a sti'ong man, and most probably acted ajM)!! by
feai', can by no means be taken to be such consent as will
justify the pi'isoner in ])oint of law.

The .s/'.i'/h aiul last re(|uest was, in substance, that tiie court
charged tliat the ell'eet of certain statements of two of (I(>fend-
ant's witut^sses, whicli had been contradicted by other wit-
nesses, should discredit their testinutny to such extent as to
oblige the jury to disregard not only their statements which
had been contiadicted, but the whole evidence of those wit-
i\esses. This rwiuest was too broad, and llu; court did right in
not charging as ret] nested.

The witnesses reierred to were exaniiiu'd fully, and the con-
tradiction related only to part of their evidence. They were
not impeadu'd by proof of geiu'ial had character for veracity,
but by showing tliat they had made pi-eviously some state-
nu'nts on a material point in direct antagonism with what they
stated on the trial. Tortious of the testimony of those wit-
nesses ju>t contradicteil were unlavorable to the accused. One
of these witnesses was a physician, who saw the child soon after

OO-i

AMERICAN CRIMINAL REPORTS.

the crime was alleged to have been committed, lie gave evi-
dence on the question of penetration, and also as to symptoms
of a disease which, it was alleged, the child was afflicted with
soon after the occurrence. He also swore that defendant was
diseased. These portions of his testimony were favorable lo
the state, and the state had the right to have such evidence re-
main in the case.

The counsel of the prisoner also excepted to the charge as
delivered on the question of reasonable doubt. On this sub-
ject the court not only said to the jury that the defendan*
should have the benefit of anv reasonable doubt, but also t( 'd
them what such benefit was. The language used by the pro-
siding judge was, " You should recognize the well-settled jirin
clple of law, that every man is ijinocent until proved guilty,
and give him the benefit of the I'casonablc doubt. Having
done this, if you are sati:;fied of his guilt, you should return
your verdict, or, if the disclosures arc not sullicicnt to satisfy
you, you should acquit him."

The judgment is affirmed.

Alduicu iri' Ai.. V. Tnio Pkopi.e.

(U)l 111., 10.)
Receivixo S'nn.KN Cioons: ('(inccahnoitofsamc — Erklciicc.

1. Receivixo stolen ooods and conceaunu saju^ for gain, etc.— Puooi

Nr.CESSAUV. — III order to convict uii<lcr section 2oJof thcC'iiniiiiiil ('nil!',
for rccc'lvinp; ami aitiinf; in C()iic('iilin;j; stolen }.',ooil,s for gain, or to pre-
vont the owner from receivin,'^- tli<'s;inie, etc., it Ih ossential, first, to show
that the proiu'i-ty alle<^e(l to liavt^ heeii rei'eived or concealed was in fa( (,
stoliui; secondly, that the accused received the goods knowinj; them t"
have been stolen, guilty knowledf;<^ hcin.n; an esi-cidial ingredient of the
crimt!; ami lastly, that the .■iccusei', for his own gain, or to i)revciit,
the owner from recovering the same, honght, received, or aiiled in con-
cealing i\w stolen goods,

2. When till* owner authorizes ov licenses another to receiver stolen goods,

and such other ijor.son receive!! the goods from the thief knowing th; ni
to have been stolen, with a felonious intent, he will he guilty of afelo:i>
in riH'eiviiig th(^ ])ro|)erty, notwilhstanding the license.

3. RECElVlNd STOLEN I'ltorKUTV — Ml'ST BE WITH CHIMINAI. INTENT.— Wlnic

a defendant, on behalf of the owner, reicives h(ol(>n goods from the
thiuf, for tlio houcbt purfioLio of rtstoriug theui to the owaer without

ALDRICH V. THE PEOPLE.

535

fee or reward, or the expectation of any pecuniary compensation, and
in fact imnioiliatcly after obtaining; tlioir possession restores all lie re-
ceives to the owner, and is not acting in concert or connection with the
yai-ty steal ing to make a profit out of the transaction, he will not be
guilty, under the btatute.

Writ of Error to the Criminal Court of Cook County; the
1 Ton. Elliott Anthony, .Judge, presiding.

John Lyle Kiiuj^ for the plaintiff in error.

Mr. Luther Laflln Mills, state's attorney, for the people.

Mr. Chief Justice Craig delivered the opinion of tlie court.

This was an indictment in tlie criminal court of Cook county
against Charles Aldi'icli and Emanuel Isiuics. for larceny. In
two of the counts it was charged, in the indictment, that for
their own gain, and to prevent the owners from again ])ossess-
ing their pro[)erty, the defendants did buy, receive and aid in
concealing tlie goods of certain named persons, lately before
feloniously stolen, the defendants well knowing they were
stolen. Tlie jury before whom the cause was tried returned a
verdict of guilty of receiving stolen property, and found the
property to bo of the value of $(5,000. The court overruled a
motion for a new trial, and rendered iiidgment on the verdict,
and tlie defendants sued out this wj'it of error. In order to
obtain a chnir understanding of the ipiestions presented by the
record, a brief statement of the facts seems necessary.

On Friday night, November 20, 1880, four persons, ]\riko
Bauer, Nick IJauer, Herman Schroeder and IMathew Ash, stole
a trunk from the Clifton House, in Chicago, belonging to J. 11.
Morrow, which contained jewelry belonging to Eaton & Faas,
and Ernest Tlioma, of Xew York, of the value of from $7,000
to $8,000. l\[orrow had the goods for sale as agent of the
owners. ( )n th(> night the trunk was stolen, one of the thieves,
Mike IJauer, told the <lefendant Isaacs, who was a pawnbroker
in Chicago, that ho had a (juantity of jewelry for sale, and
offered to sell to the defendant, but he declined to buy. leaner
desired {\w dc^fendant to see the goods, which he promised to
do at a future day. On the following Sunday, Isaacs, in com-
pany with Bauer, went to a room where the latter had the
goods concealed, and looked them over, and was offered the

536

AMERICAN CRIMINAL REPORTS.

property for $000 or 8700. Isaacs declined to buy, but told
him not to bo in a hurry, he would talk to him the next day-
On Satuixlav ni^-ht before this occurred, defendant Aldrich, a
policeman, and one Levi, were at Isaacs' place, and the robbery
havin<^ been mentioned, Isaacs ^ 'marked tliat he could luive
had the ^-oods for a small sum of money. After ol)tainin^' tliis
information from Isaacs, Aldrich and Levi conceived tlie
sclieme to recover the pro])erty and return it to tlie owners
throu;^h Isaacs. On ^londay a meeting' was Iiad between
Aldrich and Morrow, at the I'nion National IJank, in the pres-
(ince of Pinkei'ton, where Aldricli was cmpkn'ed as special
[)oliceman, wliich resulted in an arrangement that Aldricli
should obtain the goods belonging to Tlioina for i^TOO, or less
if he could, without disclosing tlie name of the ])erson with
whonj he should deal, and without leuai'd to liimsell', save only
the reputation which he anticipated would follow the transac-
tion, as a detective of stolen pro])erty.

On the following Wednesdiiy Morrow paid over to Aldrich
§700, on the guaranty of th(> vic<>-presi(lent of tli(^ Union ,\;i.
tional I'ank that the goods or money should !)(> retui'ued. On
the same day Aldrich paid ovei' to \a\\\ si;(M> of the money, to
l)e paid to the party who had the goods, through Isaacs, u ho
alone knew such party.

Out of the money thus reciMved l)y Levi he paid over >>ir»0
to Isaacs. Tln^ !i^+'>'* Isaacs paid to I'auer. who had thc! goods,
as he testilied; hut IJauer says he only i-cccIvcmI of Isaacs ."<:!( mi.
However that may l)e, upon tln^ i)ayment ol' the money 1<»
Bauer, on AVednesflay evening, he took the goods, and, in com-
pany with Isaacs, carried them to a cigar store and barlter
shop on States street. Then Isaacs nolilied Levi wIkm'c the
goods could be found, and he notified .Mdrich. who went to
the place designated, found the goods, and within ten mimites
cai'ried them in unopened packages. j>recisely as he had fomid
them, to the Clifton IIous(^ ami delivered them to Morrow.

I5au(M^ i-epresented to Isaacs that the packages returned eon
lained all theg'oods which had hcen stolen; those helonging tc
Eatim & Faas, and also those belong-ing' to Thoma, and Isaacs
and Aldricih both understood this to be the case; hut, upon a
subse(jucnt examination, it is claimed there was a shortage of
aomc ^Ij^OO.

ALDRICH V. THE PEOPLE.

537

These are, in brief, the substantial facts, as we understand
the testimony.

In the argument a number of questions have been presented
in regard to tlie admission and excUision of evidence, but we
have concUidcd to base our decision on tlie merits of tlie case,
and hence it will not be necessary to notice these (luestions.

The indictment in this case was found, and tlie conviction
had, under section 2:59, cha]>ter 38, of tlie Criminal Code, lie-
vised Statutes 1874, p. 388, which declares: "Every person
who, for his own gain, or to prevent the owner from again
possessing his property, shall buy, receive or aid in concealing
stolen goods, or anything the stealing of which is declared to
be larceny, or property o1)taine<l by rol)bery or burglary,
knowing the same to have been so obtained, shall be imprisoned
in the penitentiary," etc. On an indictment under this section
of the statute for receiving stolen goods, the first tiling to be
proven is, tliat tlie profierty alleged to have been received Avas
stolen. In this case, however, tiiei-e is no conti'oversy over that
(juestion. It is conceded that tlie goods in question were
stolen. Indeed, several of the thieves who stole the })roperty
were introduced as witnesses, and testilied to the larceny of
the goods. After the larccMiy has been [H'oveu it becomes
necessary to establish the fact that those accused of the crime
received the stolen goods knowing them to have been stolen,
(fuilty knowledgi^ on the part of the defendant is essential to
the constitution of the olfense. Wharton, vol. '2. sec. iSS'.t.

The intent, as in hirceny, is the cliief ingredient of the
offense. Tims, wlieie A. aiitliori/.es or licenses 1». to receive
property lost or stolen, and iJ. receives the prv)[)erty from the
thief knowing it to be stolen, with a fe]oni«)ns intent, he is
guilty of a f(>h)ny in receiving the jirojierty, notwithstanding
the license. Wharton, sec. 181»1. Under our statute there is
another essential fact t(j be proven — that is. that i!ie dcK'iid-
ant, for iiis own gain, or to prtnciit the owner fioni again pos-
sessing his property, bought. receive(l or aided in coiU'(>aHng
stoUai <>'oods. There is no doubt. IVomi tJHM'viiUMU'e in tiiiscase.
in regard to tlie fact that the dffendants knew the goods were
stol(Mi. Theii- knowledge is a conceded fact. It is also an un-
disputed fact that the stolen goods, in passing from the custody
of the thieves to Moi'row, the agent of the owners, passed

■i'- ';.

688

AMERICAN CRIMINAL REPORTS.

through the hands, first, of defendant Isaacs, and second,
through tlio hands of defendant Aldrich.

The question in the case is then narrowed down to this:
Whether defenchmts received the goods for tlieir own gain or
to prevent the owner from again possessing his property. Tliis,
in our judgment, is the turning point upon wliich the decision
of the case must hinge. In the disposition of tlie question
we will consider the case, first, as to the defendant Aldrich,
and second, jis to the defendant Isaacs, as the facts relating to
e;u;h deiVndant are somewhat different.

It is not claimed that Aldrich undei'took to secure the return
of the goods for any fee or reward whatever, or that lie ex-
pected to make any money out of the transaction. On the
contrary, it was proven by the prosecution that all he wanted
Avas the reputation of recovering the goods. I'pon this point
^Fori'ow testified : " Prior to the time the goods were returned
Aldrich said he didn't exi)cct to make a cent out of the trans-
action; said this on Monday; he nevci" asked for any compen-
sation, or made offer, bargain or ])roposition for compensation;
he said all he wauled was the glory of beating the otlii^r fel-
lows in getting the goods." The city authorities and Pinker-
ton were after the goods. He never asked a dollar. It is true
ho retained in his jjossession SlOOof the money which ^[orrow
gave to him, 1)ut this was not kept for his own benejit, but for
the benelit of Morrow. Upon this jjoint t!ie s;ime witness testi-
fied ; "On Wedncsslav niiilit he said he had <>'ot all the {"'oods,
instead of a ])art, and tliat he had saved me sKlo." How could
ho save for JMorrow -^100 if the money was retained for his
services? This could not b(( the case, as Ik; had paid over to
Levi all he received of Morrow (\\;cei)t this isloo.

It is aj)parent, fi-om the evidence, thai no agr(»ement was
ever made under whicii Aldi-ieh was paid anything foi" his
services — that he expect(Ml nothing and i'e('(Mve(l nothing for
the s(M'vices he r(Mid(n'ed in securing the I'eturu of the goods.
How can it then be said that iu' receivi'd tlie goods for his
own gain? Xor did lu; i'eceiv(^ the goods to i)revent the owner
from again possessing his proi^uM'ty. but, on the other liami, he
received tluMu for the V(M'y purpose of restoring llieni lo tin
ownci', which he did within ten luinutes from the time tlio\
carao intL- his possession.

ALDRICH V. THE PEOPLE.

539

Wo will now consider the testimony as to the dofcndant
Isaacs. lie was a ])awni)i"()kcr, and on the ni^^lit the goods
were stolen lie was approaelied by one of the theivos, and re-
quested to buy the goods. This he i-efused to do, but, having
obtained information as to tlie cust«}dy of the goods, he under-
took, afterwards, to assist Aldrieh in the consummation of his
scheme to obtain the goods and restore them to llie owner.
There was no contnict or agreement inider wliicli he was to
receive any pay for what he miglit do in tlie ])!'emises. All
that he did was done as a favor to lielp Aldrieli, wlio wanted
the credit of getting the goods returnc'l. Levi, who iiekl §000
to be paid for the return of the goods, luuuhHl Isaacs $450,
and retained the l»a1aneo until it coukl be ascei'taimnl that all
the goods weri! returned. Tliis sum Isaacs test i lied he paid
over to IJauer, but I'auer sweai's that Isaacs oidy paid him S300,
l)i'omising to ])ay the l)alance tlie next day. This is the only
evidence contained in the record tending to show money m
the hands of Isaacs as compensation for what he did in the
transaction. ^^'(Mlo not regard tlie evidence sutHcient. Con-
(teding that the credibility of the two men is cMpial, whicli is
iiuite as favorabk* a view on the side of the jirosecution as
they could aslc, it would leave the matter standing one oath
a,gainst another, which, under the circumstances of the case,
(jould iu)t be regarded as establishing the fact beyond a rea-
sonable doubt.

Again, if Isaacs had been endeavoring to make money out
of the transaction, it is strange he did not avail of the oppor-
tunity to buy all the goods for the S(>(IU for himself, and say
nothing to tin' detectives in regard to the nialter.

This would have been the course he doubtless would have
adopted had li< undtM'takeii to get the gooils for his own gain.
The fact that he did not take this eoui'se is a circumstance
tending to corroborate his evidence that all he did was without
pa,y or reward. If, then, Isaacs received no compensation, and
laid no arrangement undei' which he was to bo paid for what
he miglit do, we p(>rceive no ground upon which it can be deter-
mined that he receiv»>d the goods tor his v)wn gain, ov that ho
received theii\ to prevent the owner iVom again possessing his
proptM'ty, within the meaning of the statute.

It may, however, be said, that as the goods passed through

AMERICAN CRimNAL REPORTS.

■si*

A
iff

■ defendants' hands they should bo held liable for the shortage
of §;1,J}00, and in this way they received the goods for their
own gain. If tliey retained the goods that were missing there
might be force in the position, but from the evidence that was
impossible. Isaacs only saw the property on two occasions,
lirst on Sunday, when he looked it over in tiio ])resence of
Eauer, who docs not pretend that Isaacs olfered to take any
part of the goods; again on Wednesday evening, Avhon tlu^
goods were curried by liauer from Fourth avenue, in ]iaclcages,
to the cigar store. AVhile Isaacs was in company with IJauci',
at the time, it docs not appear that he in any manner handled
the goods. As to Aldrich, his oidy posscssicm of the property
"was during the ten minutes which it took him to carry the
goods from the cigar store to tiie hotel, wlien the propei'ty was
in ])ackag('s and unopened. We can see no gi'oiind upon which
it can, from the evidence, be claimed that either of the de-
fendants can be held liable for the shortage in the goods. The
more reasonable view is, that the missing articles were taken
by the thieves an<l appropriated to their own use while they
had the goods in i)()ssession.

It is, however, urged that tlie fact that the property could
have bccMi I'eturncd soon after the larceny for ^.")0(>, and the
fact tiiat .Mdrich, in his first interview with Morrow, in sub
stance said it would reijuirc ^1,40() to obtain the property, the
long p(>ndency of the negotiations as to the amount to be i)ai(l.
and the fact that ^ritto more "'as ]»aid to Aldrich than was
demanded by the thieves, ai'e facts which prov(! motive of
gain. As we undei'stand the evidence, the defendants could
not at any tinu^ have ol)tained possession of the pro|)erty so it
coidd be returned without paying the thieves tlu^ amount of
money <lemanded by them. The defendants cannot, therefore,
be blamed for the delay, as they acted as s(»on as Moitow
furnished th(> money to be j)aid to the thieves, it is ti'ue,
Ahlrich, in his lirst interview with Mt>i'row. expivssed the opiii
ion that !?1,40(> would be ivipiired to obtain the i)i'operty, au'l
this nuiy be regarded as a circumstam*e against him; but his
subsecpient conduct, agreeing to obtain the property for one-
half that sum, or as much less as he could, clearly repels tlw
inference that he was seeking to uv.ika any gain out of the
transaction. It has been suggested that Levi was a myth -

ALDRICH c. THE PEOPLE.

541

that no such pei-son ever lived. Tlio fact tliat ho was never
seen or heard of after the night the goods wei'e returned looks
somewhat siis])icioiis, but we must bo controlled by the evi-
dence i?i the recoi'd, and unless Isaacs, Aldrich, and also the
I'atlier of Aldrich, are guilty of Avilful perjury, theu Levi was
no myth, but was in Cliicago at tlie time of this occurrence,
and ])articii)ated therein, as testilied by the dofoiidants.

We have given the evidence in the record a carelul consider-
ation, and the only conclusion we have been al)le to reach is
that it has not boon establishe<l tliat the defendants were re-
ceivers of the goods for th(>ir own gain, or to prevent the
owners from again possessing their ])roperty. On the other
hand, the only logical conclusion that can reasonably bo
reached from the evidence is that defendants undei'took, on
l)ehalf of the owners, to obtain a return oF llie goods without
coinjuMisation or reward, and that all the goods which came
into tluMr possession weiv in good faith returiunl to the owners.
If it had been proven in this case tliat the defendants had
entei'od into negotiations with Morrow to secure a retiu'n of
the stolon goods in ])ursuanc(^ of a ))iior arrangement or under-
standing with the persons who had stolon* the property, with
the intent or ])urposo of making a, profit out of the transaction,
we would not hesitate to hold that they were guilty, under the
statute.

A i)arty cannot shield himself behind a supposed agency,
growing out of an agreement made with the owner of stolen
goods for their return, whore it appears ho is acting in con-
jmiction with the thieves to make a gain or ])ro(lt out of the
trausaction. Hut whore the defendants are not actuated by
the motive of gain, ;ts they were not in this case, and do not
aid in socrc^ting the propoi-ty, we do not understand that a
conviction can be had.

The judgnent will be reversed and the cause remanded.

Judijinent reversed.

Note. — It is absolutely essential to a conviction for having received
stolen money for gain, knowing it to have been istolen, that the prosecution
should prove, beyond a reasonable doubt, that a larceny of the money had
been conunitted. This fact, being what is known n.s the co/'jjk.s' dclidi, could
not be established alone by the confession of the accused that the money
foiuul on them was part proceeds of u robbery. Williams et at. v. The.
People, 101 in., 832.

542

AJIERICAN CRIMINAL REPORTS.

In The rcnple v. Hennessey, 15 \V(>nil., 147, tho court, in Inyinp it down
that tlio c-onfi'ssion.s of a party to an individual niiri-ly, uncorroborated by
circumstances, and without proof aliimdc tliat a criin«> Iina been coniniitted,
will not Justify a conviction, observeil: "The truth is, no court will ever
rely upon a confession nlone, when it is ajiparent that there is evidence
aliiiiKle to [id\e that an olTeiise has been couuuitted," See, also, 1 Grcenleaf,
Ev., sec. 217.

Gvilti/ liiioirlrdrfc — Ofhrr oc/'*. — To show guilty knowledijjo, other in-
stances of receiviuf;; may be jn-oved, even though they be tho subject of
other indictments antecedent to the receiving in <iuestion. Hex v. Davis,
Car. & P.. 177.

If the aci'used knows, when he receives g(M)(ls, that ho receives them
from a jirofessional thief, who has made him a receiver of tho proceeds of
various thefts befoie, it adds no force to tlu^ evideiict? that the thefts were
all from the same juirty, or that the stolen goods were similar in character.
State V. Wavd, l!) Coim., 4'J9.

But in order to jirove the w(V(i^cr the property must h.avc been received
fronj the same person from whom the goods in (juestion were received.
Coleman v. The I'copk, C5 N. J., 81.

4m.

Pj'orr.K V. O'Laucjiiux.

(;j Utah, 1.3:5.)

Riot : Juror — ( 'haJIciuje — Wifnei^s,

1. Opinion op .irnoR formed from hkaiuxg rei'ort of cnnir:. — A juror

who has formed an opinion upon hearing an undis]iut(nl report of a
crime, but the opinion vvas such a onc^ as would be changed by the state-
ment of any credible jxtsou, has not the uncpialified belief and con-
viction that would dis<iualify him from ac ting impartially as a juror.

2. DKFF.NDANTS TRIED JOINTLY ENTITLED T() I!IT SINGI.K CIIAI.I ENOE.—

Where several defendants are tried jointly for a crime, haviuf^ waived
their right to separate trials, they are only entitled to challenge jointly,
and ma.v have the same number of challenges a.s if it were a single de-
fendant being tried.

3. Where the court orders witnesses to be excluded from the court room

during the opening statement and the taking of testimony, it is a mat-
ter of discretion with tho court to allow ji witness, who 1 is remained
through a misun<lerKtanding of the order, to testif}', and then remain
during tho rest of the trial.

4. Acts Y"i('" w^i^TiTiTK riot.— Where two or more persons, acting to-

gether v.'ithout authority of law, use- or threaten either force or violence
accompanieil by immediate power of exeeiition, and thereby disturb the
public peace, they arc guilty of riot. Sutricient force is used to make
out tho charge of riot, if their recpiests or orders are obeyed through
a reasonalile fear of injury to person or property.
B. Testimf)ny of a general feeling of alarm and dis(iuiet is properly received
to show that the defendants disturbed the public peace.

PEOPLE V. O'LAUGIILIN.

543

Arthur Droum, for appellants.

Philij) T. Van. Zile, iJnited States attorney, Zrm Snow,
assistant United States attorney, and Presley Denny, for re-
spondent.

Twiss, J. The indictment in this case charges the defendants,
and divers other persons whose names arc unknown to the
grand jurors, to the number of about two hundred ai\d lifty,
with the crime of riot, ow the 1st day of February, iSSl.at the
county of AVashington, in tlie territory of Utah; tiiat by the
use of force and vii^lence, and by threats to then and there
use force and violenci;, accompanied l>y the immediate power
of execution, and acting together without autliority of law,
did then and there feloniously disturlj the public ])eace, . . .
and did taia> unlawful and forcible ])ussession uf the jiroperty
of the Stormout Mining Company, . , . and did by the
use of force and violence, and threats to use force and violence,
accompanied by the immediate power of execution, unlaw-
fully, forcibly a)ul feloniously drive away from the possession
of said property, to wit, the J>uckeye and Savage mines, one
W. «T. Allen, and other em))loyees of said coni])any, having
charge and control of said property and mines and engaged
at work thereon, and did feloui*nisly ami unlawfully, by the
use of force and violence as aforesaid, compel and force said
Allen and said employees to stop and tpiit woi'k thereon, and
leave the same, and then and there took forcil>lc possession of
the same, to the gi'cat danuige of said company, and to the
terror and disturbance of said employees, and of the public
])eace, conti'ary to the form of the statutes of Utah territory
in such case nuule and provided, and against the peace and
dignity of the ])eople aforesaid. Each of the defendants
l)leaded '' not (jnUtyT No one of the dcil'endanls requiring a
separate trial, they v,(M'e jointly tried, and the jury found a
verdict of guilty as to all of them. A motion for a new trial
was overruled and the case was ai)peale(l to this court.

The error fii'st alleged is the overruling of the challenge,
on the i)art of the defendants, ol" John kowder, one of the
jurors, who upon his t-oh- dire said he had heard a report of
the facts of the case, from which he had formed an opinion,
which he believed to be true, but he did not know that he had

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AMERICAN CRIMINAL REPORTS.

ever expressed it; that it would take evidence to overcome such
belief. " I believed it like other reports I hear," — that it was
a conditional and not an unconditional opinion. The condition
was as to the trutli of the storv that he had hcjird; it was un-
conditional if the report was true. "When I licai'd tlie story
I believed there was something in it, of course;" and the con-
ditions about it were, " in case the transaction did i-eally take
place," that he would recpiro proof in the case l)cf()rc he would
be willing to act ; that he had no opiniori, l»ias or prejudice,
or belief, as to the guilt or innocence of either of the defend-
ants, that would prevent liim from acting impartially as a
juryman. Tlie cliallcnge was made under tlie statutory pro-
vision disqualifying a juror who luis '' foj-med or expressed an
unqualified opinion or belief that tlie ])risoner is guilty or not
guilt}' of the oifensc charged." AVe are of tlie opinion that
there was no error in ovcrrulino- the challenge. Tlie condition
of this juror's mind was such as would usually or naturally be
formed by any person upon hearing a report of an alleged
commission of crime; ho had heard a story; he believed it. He
says: "I lieiie^^Ml there was something in it, of course; no-
body disputed it. 1 bolievc<l it like other reports I hear." It is
obvious, that this opinion or belief was liable to be changed by
the stf.tements of the next pereon lie might meet. This is not
a con v'iction of the mind, a fixed conclusion, " an unqualilicd
opinion or belief." Imiu'cssions, or qualified or conditional
opinions, formed upon the mere hearing of a report, which, in
the mind of an honest man. capable of acting as a jnror, easily
yield to the testimony of witnesses under the sanction of an
oath, having personal knowledge of the facts, constitute no
objection to a juror; but an unqualilicd o])inion or belief
which clo.ses the mind against the testimony presented in oj)-
position to it, resists its force, and perverts the ju<l^ment, does
constitute a good and valid objection. An unqnalided opinion
or belief is fixed and certain, and is incompatible with reasonable
doubt and uncertainty, and is not dependent upon the existence
or non-existence of any extrinsic fact. The defen<lants were
entitled to a trial b}' an impartial jur3\ This provision of our
statute is a simplification of the common law, and the opinions
of the state courts where no statute exists, or where the same or
similar statutes are in force, are authority with us in applying

PEOPLE r. O'LAUGHLIN.

545

the facts of this case to the law, and deducing conclusions. Tlie
question at issue is, do the statements of the juror upon his
voir dire show him to have had at the time an unqualified
opinion or belief as to the guilt or innocence of the defendant ?
In Com. V. W-jhster, 5 Cush., 297, Chief Justice Shaw said:
*' The opinion or judgment must be something more than a
vague impression formed from casual conversations with others,
or from reading abbreviated newspaper reports. It must be
such an opinion upon the merits of the question as would be
likely to bias or prevent a candid judgment from a full hear-
ing of the evidence." This is clearl}'^ the law. State v. Willson,
38 Conn,, 120; Curley v. Com,, 84 Pa. St., 151; StiU(j> v. Com.,
74 Pa. St., 458; Peo2)le v. BeynoMs, 16 Cal, 128; Gardne>^ v.
People, 3 S' im., S3. In closely balanced cases, the appearance
of the juror, the mannei* in which he is examined by the
counsel, and its effect upon him, sometimes justly have great
weight with the trial judge. In view of this, the court, in
Ortwein v. Com., 76 Pa. St., 414, said : " Much Aveight, there-
fore, is to be given to the judgment of the court below, in
whose presenco the juror appears, and by whom his manner
and conduct, as well as his language, are' scrutinized."

The defendant Murphy for himself alone, and not for him-
self and the other defendants, peremptorily challenged the
juror Pairg, which challenge was objected to by the prosecu-
tion, and the objection sustained by the court. In support of
this challenge it was claimed under the act of congress, June
23, 1874 (known as the Poland bill), providing that "each
party, whether in civil or criminal cases, shall be allowed three
peremptory challenges, except in capital cases, where the
prosecution and defense shall each be allowed fifteen chal-
lenges," that each individual defendant had the right to three
peremptory challenges, and in support of this ^laim the coun-
sel urges that in criminal cases eacli defendant must plead for
himself in person ; each makes a separate issue with the people
on the question of his guilt. If convicted, each must suffer
punishment for himself, or each may be pardoned on his own
merits. One can appeal without affecting another. In all
this, it is claimed, there is a distinction between criminal and
civil cases. In a civil case one judgment only is recorded ; one
satisfaction pays for all ; and therefore, in a criminal case, tho
VOL.IV — 85

5iG

AMERICAN CRIMINAL REPORTS.

•Is ,

trial is necessarily separate, to a certain extent ; in other words,
the word " party," as used in the statute, means each individual
defendant. This reasoning, although plausible and ingenious,
is not good. If it is, these thirteen defendants had the right to
make in the aggregate thirty-nine peremptory challenges. The
vords "each party " seem to have the same force in the first
clause of the provision above quoted as the words " prosecu-
tion and defense " have in the last clause. Each of these ex-
pressions are s\'nonymous with either party to the action, — the
plaintiff and defendant, — regardless as to whether one or
more than one person is included as plaintiff or defendant.
The word " party " has its legal and technical import and sig-
nification, Avhich is to be given to it at all times, except when
by its use it is clearly intended that some other meaning or in-
tent is given to it. State v. Heed, 47 N. II., 4<)(>. Bouvior says :
" A party in law may be said to be those united in interest in
the performance of an act ; it may then be composed of one
or more persons. . . ." In /Sloiie v. Segur, 11 Allen, 5GS,
the court says : "It imports the person or persons in whom
a joint legal right, interest or title is vested, or against wliom
a joint liability exists, and is properly applio'l to one person or
many persons, according to the subject-matter of tiie eontruct
or cause of action, and relates to or embraces a sole or joint
interest or title or liability."

With this definition, accepted and announced by high legal
authority in both civil and criminal cases as the correct import
of the word, it is not at all probable that, if the use or ftirco
intended to bo given to it in the statute had been such as is
claimed by appellants, such intention would not have been
expressed in unmistakable language, and such an important
matter not left open to construction, with the ordinary legal
and technical sense of the word opposed to such intended use.
If our national legislature intended that the words "each
party," in the provision in question, should mean one thing in
a civil action and another and quite different thing in a crim-
inal action, the language used is. an instance of negligent and
bungling legislation never before equaietl, we believe, in any
act passed by that body. But such was not the intent, and
the construction claimed by a[)j)ellants is an instance of ex-
treme forced construction inconsistent with the letter and

PEOPLE V. O'LAUGHLIN,

'cjich

spirit of the statute, and the intention of its makers. The
right of peremptory challenge is sanctioned by the statute, and
the defendants were entitled to the full benefit of it, but no
greater than the legal signification of the language used gives
to them. By this claim of the appellants we are asked in
effect to interpolate in the statute an exception containing a
provision that the word "party" in crimti.rl cases means each
individual defendant, whether one or 7»i( re. This we cannot
do. We have no pov.^er to insert qualifications, engraft Gxce[>-
tions or make modifications with the intenvion of creatinff a
provision not expressed in the statute, Sedg. St. & Const. Law,
320. By the statute riot is made a felony, and section 202 of
the criminal procedure act give^ to any defendant jointly in-
dicted with another or others, for a felony, the right to a
separate trial, if he requires it. All the defendants having
waived this privilege and declared their election to bo tried
jointly, their defense was joint and not several, and no one of
them had authority to control the conduct of the defense.
Their challenges should have been joint, not several. People v.
JlcCdller, 8 Cal., 303; People v. lluujer, 1 Parker, Crim. II.,
505.

The defendant Enright ])ercmpt()rily challeged the jni'or
Sander. This challenge was nuide under the provision of sec-
tion 238 of the crimiiuil procedure act of 1878, which, by its
terms, purports to give the defendant in a case like this
five peremptory challenges. The defendants having jointly
availed themselves of the provisions of the act of congress
fixing the number of peremptory challenges at three, could not
be allowed to make individual peremptory challenges under the
statute of the territory. The challenge was properly over-
rubd.

li l)on the request of the counsel for the defendants, with the
assent of the counsel for the people, the court ordered that all
witnesses should be excluded from the court room during the
opening statement of counsel for the prosecution and the ex-
amination of witnesses. After the opening statement on the
part of prosecution had been ma<le, W. I. Allen was called as
a witness by the prosecution. The defendants' counsel objected
to his being sworn, because he had remained in the court room
during the opening statement of the counsel for the people, in

^■^ -,

648

Ai'JERICAN CRIMINAL REPORTS.

violation of the order of the court. The counsel for the people
and the witness Allen stated that they did not understand that
the order of the court applied to the exclusion of witnesses
during the opening statement for the people, but only while
evidence was being offered and received. Allen said he did
not intentionally violate the order of the court; that if he had
undei*stood the order as applying to the opening statement of
the prosecution he would not have been present. The counsel
for the people then asked the court to so modify the order as
to allow the witness to testify, and to remain in the court rooiii
during all the trial, as he was necessary to them in aid of the
prosecution, Avhich request was granted. The Avitness Allen
testiHed, and remained in the court room during the trial. This
ruling of the court is assigned as error. We are of the opinion
that there was no error in this ruling permitting the witness to
testify, and to remain in the court room during the trial. As
he did not undei*stand the order of the court to apply to the
opening statement of the counsel for the people, he was not in
intentional contempt. The modification of the order was a
matter of discretion, as was also the making of it at first.
Allowing the witness to testify and to afterwards remain in
the court room Avas a matter of discretion and not error.
1 Greenl. Ev., § 432, and notes; People v. Gamctt, 20 Cal., 021).
Although the appellants have placed on record forty -one
assignments of error, the brief of c^l. nsel contains but six
])oints or divisions of argument, and no allusion is made to the
greater part of the assignments. The fn*st three points have
been considered and decided. The fourth, fifth and sixth, in
which are grouped such of the errors assigned as are undis-
posed of, and relied upon in argument, remain to bo considered,
an intelligent understanding of which necessitates a cognizance
of the following portion of the record: "The evidence of the
prosecution tended to show, among other things, that on the
morning of the 1st of February, 18S1, the Stormout ^Mining
Company, mentioned in the indictment, by its manager and
olficei's issued an order reducing the wages of the miners work-
ing for it from $4 per day to $3.50 per day, in all its works
excei)t at the Savage shaft, where it was announced the old
rate of Avages, to Avit, $4 per day, would be contiimed, which
reduction came to the knowledge of an organization then ex-

PEOPLE V. O'LAUGHLIN.

549

isting in Silver Reef known as tlio * Miners' Union.' Thereupon
the defendants and others comprising tliis union met together,
to tlie number of about one Imndred and fifty, in Miners' Union
Hall, in Silver Reef, in Washington county, Utah, at which
meeting the defendant O'Laughlin, president of said union,
presided; that after discussion it v/as unanimously voted,
among other things, that the miners' union and all its mem-
bers would reject and resist such reduction, and would, as a
miners' union, and in a body, order the works of said Stormout
Company to cease and shut down, and that if they, the said
company, did not shut down, that they, the union and its mem-
bers, would shut down the Savage works for them ; that in
pursuance of said voting said meeting immediately adjourned
and organized in the streets of the village of Silver Reef, and
nuirclicd in a column of twos to the Barbee & Walker mine,
through the st'-octs, and there ordered out all the miners there
working, and Avho were members of the union, who joined the
])r()cession, and from there back through tiio village to the
Tecumseh mine, in lower Silver Reef, and there ordered out all
union men to join the procession, and from there, having col-
lected three hundred and four miners, among whom were all
those defendants, nuirched in a body, in a colunm of twos, —
the president, O'Laughlin, riding horseback in the lead or in
command; the defendant Hanley carrying the United States
Hag, — to the Savage shaft, and surrounded the shaft building,
and the president thereupon selected a committee of ten fi'om
said miners, among whom were the defendants O'Laughlin and
Deo, ah'a.'i Chatham, which committee proceeded inside, and,
in presence of the miners outside, ordered the fires of the
engines to be drawn, and the works to close down and cease,
which oi'ders were obcn'cd. The works Avere dosed down, and
the shaft began to fill with water, Avhile the enij)loyees of said
comj)any were ordere(' from the building, the committee re-
maining in possession of the property; the defendant Chatham
remarking, in the presence of the committee, to the employees,
* Vou nuiy go now, right off; we have possession.' "

The defendant O'Laughlin, while a witness on the stand,
among other things, testified that the union had power tocariy
out its orders. The witness Fleming, among other things,
testified he Avas in the em;)loy of the Stormout Company at

550

AMERICAN CRIMINAL REPORTS.

the Savage shaft when the miners' union came there ; so, also,
■vvas David McKelvey, the engineer, in charge. The ordera
given by defendant O'Laughlin were : "You are to cease all
Avork in the Savage shaft and draw the fii'e, and not start up
until ordered by the union." I asked to go into the mine and
])ut out the light, and after consultation one of the committee
told me no one would be allowed in the mine, and ordered
McKelvey not to move his engine. AVhen the orders came to
cease work McKelve}* replied : " All right ; I know what that
means ; I have been there before ;" or something to that effect.

The defense claims that, " to constitute riot, the public peace
must be disturbed. Disturbing the public peace means actual
physical violence. The public peace cannot be disturbed by an
orderly, quiet meeting, by the procession of miners walking by
twos and making a gentlemanly request of an engineer. Even
if the acts complained of Avere unlawful and were trespass,
they could not constitute riot unless done in a tumultuous man-
ner calculated to disturb the public peace."

Let us examine this position in the light of the statute of the
territory and other recognized authorities. In Co)ii. r. Ihin-
lids, 10 Mass., 518, the court says: " To disturl) another in the
enjoyment of a lawful right is a trespass, and if it is done by
members unlawfully combined the same act is a riot." JJisli.
Crim. Law, § 11-13, defines riot as follows: "A riot is sucli
disorderly conduct, in three or more assembled })crsons uctuully
accomplishing some object, as is calculated to terrify others."
This learned author, in quoting Lord Coke's definition of riot,

says :

Riot in the common law siunifieth when thi'ce or more

do any unlawful act; as, to beat any man, or hunt him in his
park, chase or warren, or to enter or take possession of another
mans land, or to cut or destroy Irs corn, grass or other profit,"
etc. In section 1147 Mr. Bishop says: '' The princijial point to
be here considered is that the act must be one calculated to
create apprehension of danger in the minds of pei-sons otiicr
than the rioters." And again, in section 1148, the same author
says: "The ingredient of terror excited, necessary in a riot,
does not require that more jwrsons than one be alarmed."

The court below instructed the jury as to the definition of
riot, and the force necessary under the statute to make out tlio
element of force in case of riot, as follows; "Kiot, by the

PEOPLE V. O'LAUGHLIN.

551

sOj also,

ordei-s
coaso all
start up
nine and
Humittee

ordered
i canio to
hat tliat
at effect.
)lic peace
ns actual
)cd by an
liking i)y
M". Even
trespass,

ous llUVIl-

ito of tlio
. r. It II II-
ler in the
done l)y
." IJisli.
t is such
i actually
' others.''
II of riot,
} or more
ini in liis
f anotlicr
r prolit,"

1 point to
idated to
>ns other
10 author
n a riot,
led."
nition of
e out tlio
t, by the

statute of this territory, is defined to be any use of force or
violence disturbing the public peace, or any threat to use such
force and violence, if accompanied by immediate power of exe-
cution, by two or more persons acting together and without
authority of law." Comp. Laws, p. 614, § SOo-l. From this
definition we can determine Avhat it is necessary to prove in
order to make out a case of riot : (1) A riot cannot be com-
mitted by one person alone. The statute provides that there
must be two or more pei-sons. Therefore, in order to make out
a case, it is incumbent upon the prosecution to prove beyond a
reasonable doubt that there were two or more of the defend-
ants engaged in what they allege was the riot. (2) That two
or more persons acted without the authority of law, and that
they so acted together. (3) That the two or more persons so
acting without authority of law used or threatened to use
either force or violence, either one or the other. (4) That the
two or more persons so acting together without authority of
law, and using or threatening to use force or violence, were
accom[)anied with — liad present with — them the immediate
power of executing their purpose. (5) That two or more per-
sons so acting together without authority of law, and using
force or violence, or threatening to use force or violence, ac-
companied by immediate power of execution, disturbed the
public peace." One of the elements of riot as defined by our
statute is the use of force or violence, or threatening to use
force or violence, if such threatening is accompanied by imme-
diate power of execution. It was not necessary, in order to
use the force meant by the statute, that the defendants and
those accomi)anyjng them should have been armed with guns,
pistols or clul>s, or any kind of weapons. The facts, if you
find such to be the facts, that they, accompanied by a large
body of men, marched in a procession, under the command or
direction of these persons, to the Savage mine and hoisting
works, and there were halted by their commanding officers, who
selected from among them a committee who ordered or de-
manded, or stated the demand of this body of men to the per-
sons in charge of the works, namely, that they must cease
working, or that in substance, and that this large body of men
remaining outside, near to and in view of the persons employed
by the Stormout Company, and in charge of said works,— these

AMERICAN CRIMINAL REPORTS.

facts, if you find them to exist, and find from thorn, and all
the circumstances in evidence in the case, that the officers and
men having in charge said works and property of said com-
pany feared or believed that bodily hai'm to thenisolves, or
sevei'e injury or damage to the said works or property in tlieir
charge, would result from a refusal to comply with the com-
mand or request, and that the circumstances in which suclj
officers and men in charge of such works or property were
placed were such as would in your opinion justify such belief
in the minds of persons possessed of ordinary lirmncss and rea-
son, are a sufficient use of force to make out, so far as the ele-
ment of force is necessary, a charge of riot."

In regard to what constituted a disturbance of the public-
peace, within the intent of the statute, the court instructed the
jury in substance as follows: " If the defendants, with others,
met in Miners' Union Hall on the 1st day of February, 18S1.
and resolved to march in a body through the town of Silver
Reef, and to close down the works and mining machinery and
property of the Stormout Company, and that they did so
march, and by the use of such force as I have before metitioned
did order or direct to be closed down tlio said works, and ditl
hinder, obstruct and prevent, without authority of law, the
said Stormout Company from operating the Savage shaft, and
the hoisting works mentioned in the indictment; and if you
further lind that by means of and from the manner in which
said defendants, and others associated with them, mot in said
hall, and from the nuinner in which said marching was done
and said works closed down, feelings of fear or terror, of dis-
quiet or unrest, and insecurity as to the safety of proj)erty,
were created or engendered among the residents of Silver
Reef, — then, and in such case, I instruct you that tliis is such u
disturbance of the public peace as is contemplated by the stat-
ute defining riot, under which the defeniUmts staiid charged."

It is claimed with much earnestness that these instructions
are erroneous, as they do not correctly state the law as to the
amount of force necessary as a component i)art of riot; that
there must have been " such actual force or violence as was
calculated to inspire people with terror, such as being armed,
using threatening speeches, turbulent gestures, or the 'like.''
Our statute in defining riot says, " any use of force or vio-

PEOPLE V. O'LAUOHLIN.

553

lence, disturbing the public peace, or any threat to use force
or violence, if accompanied by immediate power of execution,"
is riot. The words do not imply that such use of or that to
use force or violence should be noisy, boisterous or tumultuous,
or be accompanied with threatening speeches, or turbulent, or
that the men using force, or threatening to use it, need be
armed. A riot does not so nmch depend upon the strength of
voice as ujjon the intent orpurjjose and the power of immedi-
ately executing the purpose. Force in animate or inanimate
nature is not necessarily boisterous, nor the execution of it at-
tended with noise and turbulence. The man who silently, and
perhaps with extreme politeness of numner, administers a few
grains of str^'chnine to his unsuspecting victim, uses force, and
is just as much an assassin, as the man whose murderous at-
tempt is accompanied by the Hash and explosion of gunpow-
der in the shot-gun. It is not so much the manner in which a
thing is done as tlie execution of intent tluit constitutes the
crime. A half dozen brigands may denmnd the pocket-book
of a travekH" without the least exliibition of tuibulence or vio-
lence in iiiiuiner or gesture, and this demand may be in the
form of a re([uest, couciied in terms of the most exquisite po-
liteness, and behind it all exists a diabolism that does not lies-
itate to take human life u[»on the least resistance or hesitation
to delivci'. And is it any the less robbery because the victim
chooses to give up his money rather than to further risk his
life, allliougli there is in fact no twhibltion of violence, yet
every act and word imi)lies not only violence but power and
force, a resistance to which endangers human life?

O'Lauglilin, in giving the order to tiiose in charge of the
Savage shaft, " V<m are to cease all work on the Savage shaft
and draw the lire, and not start up until ordered by the union,"
was carrying out the vote adopted by tlie union, and the union
had i)()wer to carry out its orders. This was an order full
of signiiicance, expressing an unlawful purpose, and being
backed by tliree hundred men, resistance by those to whom it
was directed would have been useless, undoubtedly, and have
been followed by consequences which the men in charge were
wise in avoiding. The evidence does not show that the defend-
ants or their associates, at their meeting in Miners' Union

554

AMERICAN CRIMINAL REPORTS.

Hall, on their march through the streets, or at the timo the or-
der of O'Laughlin to cease Avork, etc., was made, were cither
boisterous or noisy; but it does show that these defendants,
and those acting with them, Avere regardless of the rights and
property of othei's; that they voted to stop tiio works and
business of theStorniout Mining Company ; that they went to the
premises with force sufficient to do it, and without right obta ined
possession of them, closed down the works, stopped business, re-
tained possession and excluded the lawful occupants therefrom.
The question whether the acts of ti\e defendants and those
with whom they were acting were a sufficient use of force, or
a threat to use force with the power of immediately executing
the same, and were such a breach of the public peace as to bo
Avithin the intent of the statute defining riot, was proper!}' sub-
mitted to the jury by the court. Bell v. MaUorij, CI 111., 107;
State V. Sfmw, 133 Me., 'uA; 3 Greenl. Ev., g§ 231-233; 1 Bisli.
Crim. Law, $;§ 54(5, 548, 500, 502.

The testinxmy of Allen, the superintendent of the mining
Avorks of the Stormout Company, that defendant Chatham, one
of the committee a|)pointed to shut down and stop the works at
the Savage shaft and premises, refused to allow Allen to enter
the Avorks on the same day, but after the i)rocession and crowd
had left, Avas properly admitted. His possession, Avith that of
others of the committee Avith him, AA'as in obedience to the
A'ote at the hall, and AA'as carrying out the purpose for which
the procession Avas formed, the march performed and the com-
mittee selected. His acts in executing the expressed will of
his associates and co-defendants Avas competent evidence, not
only against himself, but them also.

Testimonv tending to shoAV that the marching of the minei-s'
union, their vote at the hall, and the proceedings at the Savage
shaft, caused a general feeling of insecurity and alarm, and
that the Avitnesses themselves had such feelings, and that they
at the time heard others express the same, Avas rightly admit-
ted. It Avas competent to proA'e in this Avay that the actions
of the defendants and their associates did disturb the public
peace.

The defense asked for a large number of instructions, a great
portion of Avhich Avere given. Upon an examination of them

TOBIN V. THE PEOPLE,

555

and the other inntructions contained in the charge of the court,
wo are all of the opinion that the charge to the jury was (juito
as favorable to the defcMiso as the law permitted, and that there
was no error in refusing those not given.
The judgment of the district court is affirmed.

ToBix V. The PKorLE.

(104 111., 5G3.)
RoBBEKY: Larceny — Receiving Molen goods — Verdict.

1. Finding party guilty of two offenses orowino out of a single

TRANSACTION. — A party cannot Iw Kiii'ty of rulibory and of bavin}? re-
ceived the same goods obtained by the rubbery, knowing theia to have
been so obtained, where there is but a single transaction invijlved, and
a verdict finding him guilty of the robbt-ry, and of the lai-ceny of the
goods so taken, and of receiving them, knowing them to have been
stolen or m:quired by robbery, is inconsitstcnt. Tlie latter offense im-
ports a subseijuent and distinct transaction from the robbery, and in-
volves some other person who had previously obtained the property by
robbery.

2. Veudict must FIND THEIR VALUE. — Tliero ciinnot be imprisonment in

the penitentiary for the oftenso of receiving property obtainwl by rob-
bery, unlets the value of the property exceeds $15 ; luid to authorize
such punishment the verdict of the jury must find the value of the
proi)erty.

Writ of Error to the Criminal Court of Cook County; the
Hon. Jolni G. llogers, Judge, presiding.

Mr. John G'Mom, for the plaintiff in error.

As to the joinder of olfenses in one indictment, and com-
pelling an election: Wharton's Criminal PI. and Pr. (Sth ed.),
sec. 'Jl)4; 1 Pishop's Criminal Procedure, ch. 30 (.3d ed.); Ilar-
mon V. CommonweaH/i, 12 S. & E., 00; State v. Jolimon,
3 Harrington, 501; Goodhue v. Peoj)k, 94 111., 37; Wharton's
Criminal Law, sec. 1387.

It cannot be contended that robbery or larceny, and receiv-
ing stolen goods, are cognate offenses,— that they can form
part of the same transaction, or that they are such in their
nature that the defendant might be guilty of both. Peoj^le v.

550

AMERICAN CRIMINAL REPORTS.

Ilarrideii, 1 Parker, 3i-4; 1 Bishop's Criminal Procedure, sees.
189, 213.

To constitute robbery, the property must not only be valu-
able, but it must be also taken from the person and the peace-
able possession of the owner Phqwcs Case, 2 Leach, 773;
Jiex V. Edwards, G Car. & P., 521; Moore's Criminal Law, 54;
Wharton's Criminal Law, ucc. 878.

The verdict is defective in not finding tlie value of the
stolen property received. This is necessaiy wliere the punisli-
ment depends on value of property, etc. IViomas v. State, 5
IIow. (Miss.), 20; Shines v. State, 42 . ':iss., 331; State v. Cleve-
land, 58 ]\[e., 504; Bkk v. State, 3 Oliio St., 80; Colla v. State,
10 Ala., 781; 31cPhe)'soih v. State, ^ Yerg., 270; Keimedij v.
reo_ple, 39 K Y., 345 ; Williams ct al. v. People, 44 111., 478.

Mr. Justice Sheldon delivered the opinion of the court.

At the ]\Lay term, 1882, of the criminal court of Cook
county, an indictment, consisting of three counts, charging re-
spectively, robbery, larceny and receiving stolen property, was
found against James Tobin, Allen Cummings and Frank Will-
iams. Upon trial had, the jury returned the following ver-
dict: "AVe, the jury, find the defendants James Tobin and
Frank AVilliams guilty, in manner and form as charged in the
indictment, and fix their terms of imprisonment at four years
each in the penitentiary of this state." The court, having
overruled a motion for a new trial as to Tobin, sentenced him
to four years' imprisonment in the penitentiary, and this writ of
error was brought to reverse the judgment.

As the verdict reads, the jury found the two defen(hints
guilty of each one of the three offenses chin'ged in the indict-
ment. l>ut this could not properly have been, under the evi-
dence in the case. It is an inconsistc^ncy that where there is
but a single transaction involved, as the ])roi»f shows to have
been here, the same jjcrson could have been guilty of botii of
the offenses of robbery, and of having received goods obtained
by robbery, knowing them to have been so obtain(>d. The ob-
jection is not from the joinder of counts, — they are well
enough joined. Bennett v. l*e<>pl<', 00 111,, Oo2; I.tjonx v. People,
08 id., 271; Hiner v. People, 34 id., 207. The difliculty is
brought into the case by the evidence. The three offenKcs

TOBIN V. THE PEOPLE.

557

sees.

cliargecl in the indictment are not comprised in robbery. Lar-
ceny mij^ht be em\)race(l in it, but it is otherwise witli receiv-
ing property obtained by robbery. This imports a distinct and
subsequent transaction, and involving anotlier })erson, the re-
ceiver receiving the property from some other jwrson Avho had
previously obtained it by robbery. The statute implies this
in providing that in the prosecution fortius offense it shall not
be necessary to aver or to prove that the person who obtained
the property by robbery has been convicted. As, then, the
prisoner could not, under the evidence in this case, have been
guilty of both these offenses, of v. hi 'h one did the jury find
him guilty? The proof renders this uncertain.

The prosecuting -witness testified that on the night of the
10th day of ^lay, 1SS2, about half-past 10 o'clock, he was, in
the street in Chicago, set upon by three men and robbed of a
watch and chain. A pawnbroker in Chicago testified that on
the morning of the llth of May, 1SS2, Tobin sold him the
watch and chain for $4. The defendant Williams testified
that he knew nothing of the robbery; that the morning after
the robbery was said to have been committed he was eating
l>reakfast in a certain restaurant at tlie tal)le with Tobin; that
a man, whose name he afterwards learned was Ileaney, came
to Tobin and asked him if he knew where he could sell his
watch and chain ; that Tobin inquired of witness if ho knew a
place, and witness mentioned the pawnbroker's place; that
tliereupon IFeaney gave the watch and chain to Tobin to sell,
and tliat witness went with Tobin to the pawnbroker's office,
where Tobin sold the watch and chain for 84, and gave the
money to Ileaney. Tobin testified substantially to the same
facts as Williams, and denied all connection with the robbery.
It will thus be seen that there was evidence tending to show
thnt there was committed but merely the offense of receiving
goods obtained by robbery, and, as before remarked, the pris-
oner could not properly liave been found guilty of both the
offenses of robbery, and of receiving the property obtained
by the robbery wl'^re the proof shows that there has been but
a single transaction involved. It is uncertain, then, from the
evideiice, of which one of these two offenses the prisoner was
found guilty. It might have been of the last named one, and
if so the judgment of imprisonment in the penitentiary is not

;«'

558

A5IERICAN CRIfflNAL REPORTS.

■warranted by the verdict, as the value of the property obtained
by the i-obbery, or received, was not found by the verdict.
There cannot be imprisonment in the penitentiary for the
offense of receiving property obtained by robber^', unless the
value of the property exceeds $15, and in such a case, to jus-
tify a sentence of imprisonment in the penitentiary, this court
has always held that the verdict must find the value of the
property, so as to show it to be a case where, under the law,
the punishment of imprisonment in the penitentiary is author-
ized. n!yhl<iiid V. People, 1 Scam., 392; Sawyer v. I*eoj}Ie, 3
Gilm., 53.

The judgment will be reversed and the cause remanded.

Judgment reversed

Note.— It was decided in Gilbert r. The State, C5 Ga., 449, that burglary
and larceny may properly be joined in an indictment, and so may larceny
and receiving stolen goods, but that counts for burglary an<l receiving stolen
goods ought not to be joined. And with reference to coniiiclling the prose-
cutor to elect upon which count to proceed, the court held that, if it appears,
from the indictment, that the charges are diiTerent, the election may bo
made when the indictment is read to the jury, and, if the difference appears
from the evidence, the election may then lie made, but that it must be called
for before the defendant opens his case.

The verdict . — Ujion the trial of an information for 7obl)ery the verdict
was: "We, the jury, find the defendant guilty, as charged in the informa-
tion," and it was urged that the crime of robliory, as charged, also involved
the crimo of grand larceny, of wliiih it was within the power of the jury
to find the defendant guilty, anj that the verdict sliould have specified
of which of these two crimes tlie defendant wiis found guilty ; held, that as
robbery was the crime charged, there could be no unccilainty. People r,
Oilbert, mCal, 108.

In People v. Coch, 53 Cal., 627, the defendant was indicted for arson, and
the verdict was "guilty, as charged in tl>« indictment;" hchl that, as the
Clime of arson, under the code, was distinguishable into degi-ees, the ver-
dict was too general in not finding the degree of the crime of which the
defendant was foi'nd guilty. For the same reason, in People v. Coviplwll,
40 Cal., 129, which was a trial for murder, the court helil that the rt ■• '■ '
was too general.

STATE V. CARPENTER.

559

State v. Carpenter et al.

(54Vt., 551.)

Resistinq an officer : Indictment — Judgment — Assmdt.

1. Not necessary to aver how officer acted. — The respondents were

indicted for hindering an officer. One of them pleaded guiltj', and
moved in arrest of judgment for the insufficiency of the indictment.
Held, that it was not necessary that the manner in which the officer
was attempting to discharge liis duty sliould be averred in tlie indictment.

2. But it must be alleged that the accused knew, at the time of the hin-

drance, that such officer v.-as one of the officers described in the statute,
whom it is made a crime to hinder. And if it is not so alleged, such
defect may be taken advantage of in arrest of judgment.

G. B. Shmo, for the respondent.
M. A. Bingham, for the state.

The opinion of the court was delivered by

RoYCE, J. The respondents were indicted under sec. 4284 of
the Revised Laws for hindering an officer in the execution of
his office. Fassett was tried and found guilty. Carpenter then
witliiU-ew his plea of not guilty and pleaded guilty, and, after
verdict and before judgment, moved in arrest of judgment for
the insufficiency of the indictment, fjccause it is not alleged
tliorein with sufficient particularity and accuracy :

1st. The nature of the officer's official duty and the manner
of its execution.

It is provided by sec. 2794, R L., that a pcliceman appointed
by tlic trustees or bailiffs of an incorporated village shall have
the same powers witliin the limits of tlie village in criminal
matters as constables. A constable may, without warrant (and
it is his official duty virtute officii), interfere to prevent a breach
of the peace, and, when an affray takes place in liis presence,
may keep the parties in custody until it is over, or take them
immediately before a magistrate. 1 Chitty's Crim. Law, 17.
And it is not necessary that the manner in wliich he was
attempting to discliarge that duty should be averred in the

indictment.

2d. Tliat tliero is no sufficient allegation that Carpenter, at
tlic time of the alleged assault, hindrance and obstruction,

'I^T'

5G0

AMERICAN CRIMINAL REPORTS.

knew tliat Laroso was a police officer or acting in such
capacity.

To constitute the crime, under the statute, of hindering an
officer in the execution of his office, it must be shown that the
party accused knew, at the time he is charged with hindering
such officer, that he was one of the officers described in the
statute that it is made a crime to hinder; and that being a fact
that must be found to justify a conviction, it was necessary
that it should be alleged in a travci*sable form in the indict-
ment that the party had such knowledge.

It was l;e!d in State v. Downer ct al., 8 Vt., 42+, that it sliould
be alleged that the respondent know of the character in whicli
the officer claimed to act ; and in State v. Burt ct al., 25 Vt., J)73,
an indictment in which no sucli averment was made was held
bad upon demurrer. It cannot be presumed that the respondent
had such knowledge; and the possession of it was a necessary
element to constitute the crime. The indictment was, therefore,
fatallv defective for not alleging it. The defect, being one of
substance, was not cured by the jilea; and, although it might
have been taken advantage of by demurrer, it may l)e urged
in arrest of judgment. 4 Bl. Com., .'37.5; 1 Chitty's Crim. Law,
539.

The indictment being bad for the reason stated, as charging
the respondent with the statute crime of hindering an olllcor
in the execution of his office, it is nnnecessarv to notice the
other objections that were made to it. The court ovei-rulod
the motion; and although the indictment was defective in (he
particular above stilted, yet, if it c(mtaine(l a complete desci-ii)-
tion of such facts and circumstances as constituted a crime, it
Avas properly overi'ubd. In State v. Bxtrt et al., suj»-(i, there
was only one count in the indictment, and that was based
upon the statute against hindering an officer in the execution
of his office; and, although it was held to be bad as charging
the commission of a crime under that statute, it being alleged
that the respondent made an assault upon the officer, the court
held that it was sufficient for a common assaidt at common
law, or under the general statute upon the subject of breach
of the peace. Here the respondent is charged with having
committed an assault and battery upon the officer. That case
and State v. Downer et ah, svjpra, are full authorities for hold-

^imm

FANNING V. THE STATE.

561

tho

ing that the indictment was sufficient as charging tho respond-
ent with the crime of having committed an assault and battery
upon the officer. There was no error in overruling the motion,
and the respondent takes nothing by his exceptions.

Note.— See note to Fleetwood v. Com., page 30, " Arrest."

Fanning v. TnE State. Ife

(CGGa., 107.)

KoBBERY: Larceny from the person.

Distinction between bobbeuy and lauceny fuom the perron.— To con-
fititute robbery, as «listingiiished from larceny from the pci-son, thero
must be force or intimidation in the act ; therefore, where a thief slipped
his h.ond into ihe pocket of a lady and got his finger caught therein,
and she felt the hand, and, turning, saw h.iui unconcernedly looking at
the houses, and caught him by the oat, which was left with her in
making his escape, held, that tho crime is larceny from the person, and
not robbery, though the lady's pocket was torn in extracting liis hand.

Before Judge Simmons, Fulton Superior Court.

Frank A. Arnold, for plaintilf in error.

li. II. Hill, J/'., solicitor-general, tor the state.

Jackson, Ciiikf Justice. The substantial facts in this case
are, that the defendant slipped his hand into a lady's pocket,
and furtively took therefrom a purse of money. Before he
got the pui-se entirely out, she felt the hand and tried to seize
it, but the thief had succeeded and the purse was gone. In
extracting hand and purse, the pocket was torn, and when the
lady turned she saw the thief looking unconcernedly at the
houses on Whitehall street. She rushed upon hiai ajul caught
him by the coat, which, in his struggle to escape, was left torn
in her possession. Afterwards a policeman arrested and secured
him.

Tho sole question is. Do these facts make a case of robbery
or larceny from the ])orsou under our code?

The criminal deed was consummated when the purse was
taken from the lady. The subso<nient struggle to recapture it
by seizing the thief (cannot be consid«M-ed to deteriuino whether
Vol. IV — 80

5G2

ABIERICAN CRIMINAL REPORTS.

the taking itself was forcible, or private and furtive. The mci-e
fact that the pocket was torn in the effort to get the furtive
hand out with the purse when the lady felt it and tried to seize
it, is not sufficient, wo think, to show such force and open
violence as makes the crime of robbery.

Under the code of this state robbery is "the wrongful,
fraudulent and violent taking of money, goods or chattels,
from the person of another, by force or intimidation, without
the consent of the owner." Code, § 40S0. There was no in-
• timidation here at all, nor was there such force or violence as
to constitute robbery as distinguished from larceny, under
sections 4392 and 4410 of the code. That distincti* i is, that
larceny from the person is the stealing privately or without
the knowledge of the person wronged, or, as the dclinition of
robbery would make it, without violence and force, or intimida-
tion. The attempt and intent in this case was private, and the
deed was done without the knowlege of the lady, except that
she felt somebody's hand, and, turning, saw the thief, and then
with the knowledge came the effort, not to prevent the capture
of, but to recapture, the stolen jiurse.

There being no attempt on the part of the thief to use force
or to intimidate the lady, but the whole facts showing that his
purpose was to take the pui-se ])rivately and without her
knowledge, with intent to steal it, and the nature of the ci'ime
being ascertained by that intention which is alwa^'s an element
in it (Code, § 4202), as well as by the consummatiim, which in
this case was, in the act itself, private and furtive and not
forcible, avo conclude that the defendant should have been
found guilty, not of robbery, but of larceny from the i)erson,

and a new trial must bo g]'antcd.

Judgment reversed.

Rice v. Commonwealth.

(102 Pa. St., 408.)

Seduction: Evidence.

1. SOCIAIi ATTENTIONS NOT SUFFICIKNT CORROIIORATION.— In a trial for
seduction under jjromiHe of niarriiiKO, ovid(^nce of such social attcmtioiia
on the part of the defendant to tlu; prosecutrix, as acc-ompanying her
from clmrch, uilling on her at tlie Iiouhc of her parents, and tliere wail-

RICE V. COMMONWEALTH.

§63

ing on her now and then for two ycara, is not sufficient to corroborate
the prosecutrix's testimony to the effect tliat a promise of marringe waa
made to her, and will not wairunt the jury in finding that fact in the
affirmative.

2. Contrition op defendant.— Whore there is testimony that the defend-
ant called on the prosecutrix's mother and expressed contrition for what
he had done, and declared his willingness at the same time to make
amends by marrying the prosecutrix after a time, such testimony is not
evidence from vluch a jury could safely find a previous promise to
marry.

8. WiTiiiiOLDiNa TESTIMONY BY mosECUTioN.— Failure on tfiepart of the
prosecution to call the father of the prosecutrix, who was present at the
conversation, to testify to particulars tlioreof, was a circumstance wliich
would have justified an inference unfavorable to the prosecution, and
the court would have been warranted so to instruct the jury.

4. Statement to third person. — Testimony of a conversation between

the defendant mid a third person, in tlie course of wlxich the defendant
said, in reference to tlie matter in liand, that " he would give $200 tO
settle it, and no more ; tliat he was guilty of the cruue," was not evi-
dence of a pronuse of marri.ige.

5. Conviction for fornication. — While the evidence did not warrant

a conviction for seduction under promise of mju'riage, yet a conviction
for fornication, etc., miglit be sustained under the same indictment.

Error to the Court of Quarter Sessions of Lackawanna

County.

Corndim Smith, for the plaintiff in error.
//. M. Hannah, witli J. F. CoanolUj, for the defendant in
error.

Mr. Justice Paxson delivered the opinion of tho court, April
% 1883.

When this case was here upon a former writ of error, we
said pointedly that "the mere evidence of his (plaintiff's) at-
tentions was not suflicient to carry the case to the jury." In
other words, they were not such attentions as would justify a
jury in presuming a promise of marriage, or would amount to
such corroboration of the prosecutrix as the act of assembly
requires in cases of seduction. Upon a state of facts in no es-
sential features differing from those of the former trial, the
learned judge below charged the jury (see seventh assignment):
" But there is evidence of social attention of various kinds, if
you believe it. If it is true that tliis young man did accom-
pany this young lady from churcli and waitetl upon her home,
and called at the house of her parcjiits, and there waited upon

AMERICAN CRIMINAL REPORTS.

her now and then for two years, that is such social attention,
within the moaning; of our supreme court, as would warrant
you in findinjj that fact in tlie ullirniativo," The fact to whicli
the learned judge referred was the promise of marriage. IIo
has entirely mistaken our language and moaning. Wo re-
peat now wliat we said then, that the evidence of attentions
Ou the part of the plaintiff to the prosccutrbc was not sulli-
Cient to submit to the jury upon the question of corrobora-
itton. And the jury should be so instructed in the future, if
oc.cessary, upon tlie same or a similar state of facts.

But one otlier matter remains. We said lufore with some
reluctance thf't " wo cannot say it was error to refuse to with-
draw the question of seduction from the jury. There was
some proof that plaintiff in error admitted the promise to
marry." The evidence was exceedingly weak, but as the case
had to go back for other reasons, we thought best to allow
this question to bo again submitted to the jury. It has not
been strcngtlioned upon the second trial. The mother of the
prosecutrix sent for tlie plaintiff in error, after slie h>arned her
daughter was in trouble. He camo to her house and h.ad an
interview with her in the pre.senc3 of her husband and her
daughter. Mrs. Tlobartson thus relates what occurred:

Q. What did you say to him (plaintiff); what were the
words?

A. I told him this was a nice job he had done; I told him
lie must fuKil his promise and not to bring the rest of the
family to shame.

Cross-examined: Q. I want you to tell the first thing said,
who said it, and the answer ?

A. IIo bid good evening with mo and said ho was sorry for
what he had done.

Q. Told you ho was sorry for wliat lie had done ; who spoke
next?

A. Himself; ho said ho would marry if I waited two weeks,
because ho said he owed his sister some money; I told him to
fulfil his promise and not bring my family to shame.

There is nothing here from which a jury could safely find a
previous promise to marry. This view is strengthened by wliat
followed. Upon her re-direct examination the same witness
related what occurred as follows :

RICE V. COMMONWEALTH.

Q. Tell us v.'hat took placa at tlio cimo Eico cama to yoiD*
liouso, whoii you sent for him?

A. lie came to talk to mo.

Q. AVliat Avas the lirst thin;^ said ?

A. Wo bid •^ood evening to_!^ctlicr, and lio told rne ho was
sorry for what he had done, and if I should leave it for two
weeks, he would marry her; I told him I would not leave it
two days; I said I ha<l a small family coming up, and did ntJt
want to bring them to shame ; ho said he hadn't money enough
to got married now, he owed his sister board. I soad he coulfl
get married and have hor homo there, and not to bring my
little family to shame.

Cross-examined: Q, Then, if I understand it now, it waJs
this Avay: Kicc said he owed some money for board, and
could not many short of two weeks? , ■

A. Yes, sir.

Q. And then you went on and said ho could fulfil his prom-
iso, that he would have a home thore ? '

A. I said, if he would fulfil his promiso, and let her com©
homo, as ho promised, that her homo was thore for her, and
not bring my family to sliamo, as I told you bofore.

As the case now stands, it is our duty to express a dccidefl
opinion \\\toxs. this evidence. The implication which might bo
gathered from the examination in chief, that the plaintiff re-
ferred to a previous promise to marry, is entirely removed by
the cross-examination, which shows that the plaintiff was merely
e:q)ressing a regret for what he had done, and a willingness to
repair the ^ATong by mai-rying the girl. And when we exam-
ine the subsequent re-examination and recross examination,
there cannot be a doubt upon this matter. There is nothing
here u])on which this verdict can stand. The evidence was at
most a scAut'dla, and it will not do to send a man to the peni-
tentiary upon a scintilla.

It was said, however, that the case was strengthened by the
testimony of Ody Biglin, who stated that he had a conversar
tion with the |)laintiff, in which the latter said " he would givB
§200 to settle it. and wouldn't give no more; that ho was guilty
of the crime." It would be straining this language to say tho
l)laintiff referred to the promise of marriage. The crime of
which ho admitted his guilt was evidently the illicit inteiw

fi66

AIHERICAN CRIMINAL REPORTS.

course. That was not seriously denied; indeed tlio plaintiff
acknowledged it on his forinei* trial.

Thoro was one feature of the trial below that wo cannot
pass without commout. It was tho failure of the comnion-
•wealth to call tho father of tho prosecutrix in regard to tho
conversation we have referred to between the mother of tho
prosecutrix and the plaintiff. The prosecutrix and her father
wore present at that interview. Neither was called. It matters
little about the prosecutrix, as her evidence in regard to the
promi.se of marriage could not be aidenl by placing her upon
tho stand again. But under the circumstances of tliis case, it
was tho plain duty of tho commonwealth to have call'.xl her
father. This was tho more necessary by reason of the equiv-
Gcal character of Mrs. Ilobortson's testimony, as well as that
of her daughter. The common weal tli demands justice, not
victims. Tills belongs to a class of cases where the whole
truth should be brought out if possible. ITpon so vital a ques-
tion as whether, at the interview referred to, tho plaintiff ad-
mitted a promise of mai-riago prior to the seduction, the neglect
by tho commonwealth to call the father of tho girl, who was
present at the interview, an;l lu.ird all that was said, would
Lave justilied tho jury in drawing an inference seriously un-
favorable to the pi'osecution, and tho court below would have
been at least justified in saying so.

If the plaintiff in error has been guilty of fornication, of
which there seems little doubt, ho may bo convicted of that
offense under this bill.

The judgment is reversed, and it is ordered that tho record,
with this opinion, setting forth the causes of tho reversal, bo
remanded to the court below for further proceedings.

State v. Tkiczevant.

(20 S. C, 303.)

Sentence: Practice.

EaaOJl WHICH AFFECTS SENTENCE ONLY. — The failure of tlic cirruit judge to
ask a prisoner convictetl of munler, " If lie has anything to say why
judginHnt nhould not be pronounced on liiin," is rrror, and ri'i|uiro!j u

■■--M-'

STATE V. TREZEVANT.

plaintiff

! cannot
iomnion-
l to tho
>r of the
LT fiitlier

matters
I to tho
icr upon
H case, it
H'mI her
e cquiv-

as tliat
tico, not
10 wholo
il a quos-
intiir ad-

neglect
who was
(1, wouhl
ously uii-
)ul(l have

nation, of

1 of that

record,
•ei'sal, bo

t judge to
say why
ri-ijulrei) u

resentence, aUhouRh the prisoner did not demand that this question
should bo asited. But as tliis error alTocted tlie sentence only, the pris-
oner is not entitled to a new trial, but must l)e resentenced utter being
BO u^ked.

Tills was an indictment agair.it William Trczcvant for mur-
der.

Mr. Andrew C. Dlhble, for appellant.
J/r. Solicitor Jervey, contra.

Tho opinion of the court was delivered by

Mr. Chief Justick Snrpsox. The defendant was tried and
convicted of murder at the May term, 1883, in tho court of
sessions for Orangeburg county. AVhen called for sentence, tho
question " whether he had anytliing to say why judgment
should not be pronounced on him," was omitted. The appeal
assigns error on account of this omission.

There is no doubt that in capital cases the practice of asking
this question before sentence has been universally recognized
and followed in this state from the earliest period of our judi-
cial history. State v. WnahiiKjfon, 1 Bay, 155. And it seems
that it has been the practice, not simply because it was
formal and seemly, but because of legal requirement founded
upon wise consideration, and, therefore, necessary and indis-
pensable. Mr. Archbold (1 Cr. Pr. & PI., G7G) says that in
capital cases, before judgment is pronounced upon the defend-
ant, it is indispensably necessary that he should bo asked "if
he has anything to say why judgment should not bo pro-
nounced on him," referring to 1 Chitty, Crim. L., TOO; West v.
State, 2 Zabr., 212, and GraiJi/ v. State, 11 Ga., 253; and, also,
that this should appear upon the record to have been done. 3
Salk., 358; Mill. Comp., 157; 3 Mod., 205.

This is necessary, because, on this occasion, tho defendant
may allege any ground in arrest of judgment, or he may
plead a pardon, etc. 4 131. Com., 370. He further says, that
the omission to do this in cases of minor felonies is not a suf-
ficient ground for reversing tho judgment, provided it appears
that the prisoner and his counsel were both in court when the
sentence is pronounced, and urge nothing against the judgment
or in mitigation of the defendant's guilt. Gradij v. State, 11

5<!8

AMEIilCAN CHIMIN A L UKl'OUT.i

Ga., 2r»;?. The samo dootrino is found in 1 IJish. Cr. Pro.,
§ 805, wlicre ho says that "It is now indispensably necessary,
oven in clor<^yablo felonies, that the defenchint should b;; asked
if ho has anything to say why jud^^niont of death should
not be pronounced on him." 4 Burr., 2080; 3 Salk,, 3!)S;
3 Mod., 2(55. Under this uniform practica, founded, aa wo
have seen, upon the law, the defendant hero had tho right to
have* this question propounded to him before sentence; and,
although it was not doinandod, yet, m a case of such serious
magnitude, tho omission to have tho question asked, wo think,
was error.

Next, as to tho clTcct of this error. "Wo do not S30 why it
should affect tho whole proceeding, and, therefore, render a
new trial necessary. The error occui-r- d a Uu' trial and con-
viction, and applied to the subsofjuent proceeding, to wit, tho
sentence only ; and in reason the remedy should extend only
BO far iis the error extended. The weight of authorities sus-
tains this view. 1 I3ish. Cr. Pro., ^ 12!);5; MoCne v. Commoji-
wealth, 78 Pa., 191; 21 Am. Hep., 7; 'State v. Johntion, G7 N.
C, 59.

It is tho judgment of this court that the judgment of tho
circuit court, as to pronouncing sentence, be rovci-sed, and that
tho case be remanded for resautenco after tho question above
is asked the defendant.

Note.— See i7a;j)arfe Wi7so», an^c, 233.

In ue Jackson.

(3 MacArtlmr (D. C), 24.)

Sentence: Several terms of imprmmment — Process cannot enlarge judr/-

ment.

1, Sentence on conviction on seveual cnARCJES. — \Vlion a prisoner was
aJjudf^od ts bo imprisoned for tlirco several terms of one hundred and
eiglity days each, without any spocift^iation as to tlie time of beginning
or ending of the two last terms of imprisonment, held, t!iat ho could
not be imprisoned for a period exceeding that of a single sentenic :
lielcl, also, tliat there would bo no error in a judgment making one term
of imprisonment commence wlion another terminates.

IN KE JAC'KKON.

5G0

9. Pnor;Kis ov ooMin-ninvT cannot rnlatwik nrcconn.— All prooors after
jiul'^inont mint purs-jo, but cannot l»o usn 1 to vary or control, tho juds-
inunt. An.l inomoraniluin upon tliB tioniinitmoiita t-annot bo resorted to
for tho purpode of unlargin,:; what tho court has aoleninly adjudsoJ.

Appoiil from an ortloi' disinisiing a writ of ha^^eas corpus.

C. M. Smith, for pctitionor.

Fi'diicis Millet', a^jis'aui distriot attornay, for raipDn Jont.

15y Iho Counr. The relator appeal's to bo imprisoned for tliroo
Keveral terms of one hundred and eiglity days each, without
any specifications as to tho timo of bo;^inning or ending of tho
two last terms of imprisonment, Tho sentences pronounced
by the court do not provide that tho periods of imprison-
ment under thojio convictions arc to commence at any futuro
period or after tho expiration of tho period ment'.oncd in
tho former judgment. This omission is fatal to any impris-
onment which ex(!eeds that of a single sentence. The law
is well settled that in a criminal case there is no error
in a judgment making one term of imprisonment commence
when another terminates, and when this forms part of tho sen-
tence, tho judgment is then considered sutllciently certain as to
the time wlum the successive sentences are to bo carried into
oxecution. Hex v. Wilkes, 4 Burr., 2577-8; Kite v. Common-
we:il!h, 11 ^tetc, 5S5; lite Commonwealth v. Lmth, 1 Va. Cases,
151.

It was contended at the argument that the commitment
might bo resorted to as part of the record for tho purpose of
justifying the imprisonment beyond the first conviction, and it
was sought to fjive elTect to a memorandum on the commit-
ments that they were to lake effect after each other. In tho
lirst place, it is a rule that all process after judgment must
strictly pursue tho hitter. A mittimus is merely to furnish tho
olficor to whom it is directed a justilication for the detention
;)f the prisoner. It cannot be used to control or vary the judg-
ment, which is tlie only matter that can be carried into effect.
So that oven if this memorandum wei'o embodied in tho com-
mitment, it could have no effect, for the reason that more
|)rocess can never be resorted to for the i)urpose of enlarging
what the court has solemnly adjiid;;'ed. The sentences in tho

570

AMERICAN CRIMINAL REPORTS.

Second and third cases do not state that each imprisonment is
to commence from and after the expii-ation of tlie imprison-
ment in those which precctled, and that important modification
coukl not be added by a memorandum on the process.

Tlie order dismissing the writ must bo reversed, and as the
rchitor hr.o undergone confinement for the full period of a
single sentence, ho must be discharged from further custody.

Note. — A judgment of conviction on two separate indictments which
read: " It is considered by the court that the prisoner bo confined in the
jail and ponitentiiuy house of tliis coniuionwealth, to luud luUn-, for tlio
space of five years ui)on each indictment," it was licld that the legal effect of
the jn.l;^mcnt was that the prisoner should he confmod only for five years;
that such confinement shouhl be upon each indictment, and that both ternw
of five years should commence and terminate at the same time.

In Miller v. Allen, 11 Iiid., ysi), tlie petitioner wiis sentenced to imprison-
ment in the state prison for two years in each of two several indi( tinents.
It was hi'Id t)i:it botli terms commenceil and run concurrently. It was licld
in that case, and also in Ex parte Mct/crs, 44 Mo., 270, that in the absence of
statutory provision authorizing it to be done, tlie couits liave no autiiority
to order a term of imprisonment in the penitentiary to commence at the
exi)iration of another.

If a prisoner is held under a le,::;al and valid commitment, tlie illegality of
other commitments need not be considered until his term of service under
the valid commitment has expired. Ex parte Uijnn, 17 Nev., i;J9.

Verdict, "tlie Juiy found defendant guilty of an assault with a deadly
weniion, to indict a bodily injury," etc. Held, thiAt the omission of th(! words
" witli intent" after the word " weapon" did not invalidate the inJictmont.
Slate V. Colhjcr, 17 Nov., 275.

IlouixsoN V. State.

(38 Ark., 518. "»

Sunday: Judicial notice of day of urcJ: or month.

1. Tlio courts take judicial notice of the day of the week a certain day of

the month came on.

2. Sauuatii iiREAKiNa — Indictmknt Fon.— The charging p.-irt of an in-

dictment for Sabbath breaking must show that the olfenso wa:i com-
mitted on some Suad.ay, tlum;^h the particular Sunday is not important

Error to Pope Circuit Court. Hon. W. D. Jucoway, Circuit
Judge.

C. Jj. Moore, attornoy-gonoral, for appellant.

DREES V. THE STATE.

571

Eaictx, J. Tlio indictment in this case was not good and tho
demurrer should have been sustained. Tlic courts, judicially,
know tliat tho 12th day of Js'ovember, 1880, was a Friday.

It was not a misdemeanor for a licensed vendor to sell
whisky on that day. The charging part of tho indictment
should have shown that, on some Sunday, ho did the act con-
stituting the offense, although the particular Sunday was not
important. Tho designation of the crime in the commence-
ment is merely prefatory, and, to bo valid, must bo sui)ported
by tho charging portion. It is not charged that tho defendant
sold liquor on any Sunday at all.

Reverse and hold for naught.

Dress v. The State.

(37 Ark., 122.)

TRE'iVASS: Partition fencs.

Trespass — BuEAKixa PAUTrrioN fenck.— A person cannot bo convicted of
niisdcinoanor for knocking a board oil of a partition fence, between
tho lots of himself an 1 tho pvosoiuting witness, and tho common prop-
erty of botli. But it seems that to pull down and destroy it would be
criniiiud trespiuss.

Appeal from Pulaski Circuit Court. lion. J. "W. Martin,
Circuit Judge.

C. B. Moore, attorney-general, for appoUco.

IIaijkisom, J. This was a prosecution under the act of Jan-
uary 21, 1875, to protect inclosures from trespasses.

The act declares, " That if any person shall ride, range or
hunt within tho inclosed grounds of another, without tho con-
sent of the owner previously obtained, or shall pull down or
break the fence, or leave open the gate of the farm, plantation
or other inclosed grounds of another, the party so offending
shall be guilty of a misdeuioanor, and, upon conviction thereof
before a justice of peace, or other court, liaving jurisdiction of
such offense, shall bi^ (iiu'd in any sum not less than ten dollars
nor inoro than one liumbed dolhirs. and, in default of the pay-

AMEKK AN ClilMlNAL KEPORTo.

r 1%

mont of such line, sluill b» imprisoned in tlio county jail not
less than ten nor more than tiiirty clays."

The evidence showed that the fence tho defendant was
charged with breaking was the partition fence between tho
lots of himseli; and DemaT-sh, the prosecuting witness, and tho
common property of them both.

Having the same right in the fence, and equal power and
control over it, with Demarsh, ho did not commit a trespass in
knocking oif the plank Demarsh had added to it. 2 Hill on
Torts, 277; Cooloy on Torts, 327; Freem. on Coten. and Part.,
sees. 208, 299; Cuhltt v. Putin, 8 Barn. & Cross., 257; Bennett
V. Bulloch, 35 Penn. St., 301.

Had he, however, pulled down and dosti'oyed tho fence, such
destruction of the common i)roperty would liavc boon a tres-
pass, but we are not callerl ui)on to say wliotlicr he would havo
been liable to an indictment or prosecution therefor.

As the fence was common property of tlie defendant and
Demarsh, the (hiding of the court that it was broken by tho
defendant witliout the consent of tlio owner was not sustained
by the evidence.

Tho judgment is rovei'sed and tho caur.e is remanded, with
instructions to grant the defendant a now trial.

The Statk v. HAnTNETT.

(75 Mo., 251.)
Venue: Kvidcuce — Rape.

1. Vexce siust be provei) as i-.VTi) IN THE INDICTMENT.— No principlo is

better settled than tliat in a (TJminal ciuw the venue must he jiroved aa
laid in the indictment. It is as in)])()i-tant to prove that the olTense waa
committed in tiie county where it in chargoJ to havo been committed,
as to prove that the defendant committed it.

2. Evidence — Puoof ok vknue. — Proof of vonut', like any other fart, may

be proved by direct or indirect evidence, but it must bo cstablislicd
eitlier by the on(* or tlie other.
8. Same — Rape.— Prosecutrix may be interro;;ated oh to her object In go-
ing to tlie place where tlus rape; wiw alleged to havo l»eea committoJ.

From Colo Circuit Court. Hon. E. L. Edwards, Judge.

THE STATE v. HAltTNETT.

573

Belch tfi Silver and J^iohiff d; TTongh, for appellant.
D. II. IIcLityre, atloi-ney-goiieral, for the state.

. Norton, J» Defendant was indicted in the Cole county
circuit court at its December term, 1S81, charged with the
crime of rape. Upon this indictment he was tried and con-
victed, and brings the case here by appeal, assigning among
others, as a reason for reversing the judgment, th.\t the record
failed to show that the offense charged was committed in Cole
county.

No principle is better settled than that in a criminal case
the venue must be proved as laid in the indictment, and that in
order to a conviction it is as im))ortantto prove that the offense
was committed in the county where it is charged to have been
committed, as to prove tiiat the defendtmt committed it. This
fact, like any otiier, may be established either by direct or in-
diiect evidence, but it must be estal)lislied either by one or the
other of tlieso methods. After a careful examination of the
bill of exceptions, we fail to iind either direct or indirect evi-
dence of the fact that the crime charged was committed in
Cole county, the evidence introduced, as shown by the record,
only tending to prove that the offense was committed near
Scott's station. There was no evidence that Scott's station
was in Cole county. As the fact of venue is always suscepti-
ble of direct proof, it may have been made in this case, but if
so, the record before usUipon which we alone can act), Avhether
through inadvei'tence or otherwise, fails to disclose it, and
under authority of the case of The State v. Ihujhes, 71 Mo.,
(i33, the record in which case is similar to the one in this, the
judgment will be reversed and cause remanded.

It is proper to state, as the cause will be retried, that while
I do not think error was committed l)y the court in refusing to
allow the ])rosecuting witness to state, in answer to a question
asked by defendant's counsel, what was her object in going to
Scott's station, a nuijority of the coui't are of opinion that the
([uestion was a pi-oper one aiul that the witn(>ss ought to have
been permitted to answer it.

Except in the particulars nientioru'd the cause seems to
have been fairly and properly tried. All concur.

574

AJIERICAN CRIMINAL KEPOKTS.

TKKBiTOKy V. An "Waii and Aii Yen,

(4 Mont., 149.)

Verdict: Jh/v/ — \Vnircr.

1. Verdict OF eleven persons in capital cask a nullity. — Tlio consti-
tution guaranties a jury of twelve men, the common law jury, and tho
right to be tried for crime by a jury of that number is not a mere privi-
lege of the prisoner, but a legal re(iuu'ement, which cannot be changed
by tho consent of tho prisoner. Tho verdict of eleven jurymen in a
capital case is a mere nullity, and any judgment rendered thereon
against the prisoner is witliout jurisdiction and void.

From First District, Madison County.

ArmMrong <& Toole, for respondent.
Blake t5 Calloway, for appellants.

Wade, C. J. This is an indictment for murder. During tho
progress of the trial one of the jurymen was excused on
account of sioknoss in his family, and thereupon, with thecon-
Bcnt of the defendants, the trial proceeded to a linal conclusion
before the remaining eleven jurymen, who returned into court
a verdict against tho defendants of murder in the first degree.
Had the defendants, with tho consent of the ])rosecution and
the court, in a capital case, tho right or authority to waive a
trial before a jury of twelve men? A common law jury con-
sists of twelve persons. That is tho jury secured and guaran-
tied by tho constitution. ]>y the law of the land twelve per-
sons form a ]iart of the tribunal before whom a defendant
charged with a capital crime is to be tried. Can a defendant
on his own motion change the tribunal and secure to himself
a trial before a jury not authorized by and unknown to tho
law? "We know of no authoi'ity authorizing anything of the
kind in a capital case. Tnstanc<\s may bo found in tho books
in cases of misdemeanors, and also. l)ut more rarely, in cases
of felonies, where it has been held that a defendant might
waive his right to a jur}' of twelve and consent to be tried by
a less number, but the weight of authority in cases of felony is
clearly against the proposition. The law has established cer-
tain tribunals, with defines] powers and forms of proceedings,
for the trial of persons chaigc d with eritne. Security to tlu^
defendant and to the j)ubli(; is only found in a strict compliance

TERRITORY v. AH WAH AND AH YEN.

575

with tho law of the land. Jurisdiction comes by following
the law. Disorder and uncertainty follow a departure there-
from. Neither the prosecution nor the defendant, by any act
of tlieir own, can change or modify the law by which criminal
trials arc controlled. If, with the consent of the court and tho
prosecution, the defendant may have a trial with one juryman
less than a constitutional jury, why, with like consent, might
he not have a trial with one juryman more than a constitutional
jury ? If by his own act the defendant might take one from a
lawful jury, we do not see why he might not add one thereto.
In either case there would bo a failure of jurisdiction, because
jurisdiction aLiaches to and makes valid a verdict when ren-
dered by a jury, and a jury is twelve men. In civil actions tho
statute expressly provides that in case a jurynum becomes sick
and is excused, the trial, with the consent of the parties, may
proceed before the remaining eleven jurymen; but even in civil
actions this could not bo done except by virtue of a statute au-
thorizing it, and hence the statute was enacted. In the absenco
of a statute, consent would not confer jurisdiction. By tho
consent of the court, prosecution, and defendant, a criminal
trial ought not to be converted into a mere arbitration.

In the case of Caucemi v. People, 18 N. Y., 130, the court
says: "Criminal prosecutions involve public wrongs, a broach
of public rights and duties which affect the whole comnumity,
considered as a community in its social and aggregate capacity.
3 Bl. Comm. (2d ed.), 45. The end they liavc in view is tho
prevention of similar offenses, not atonement or expiation
f(,. crime committed. Id., 11. The penalties or punisliments,
for tho enforcement of wliich they are a moans to the end, are
not within the discretion or control of the parties accused; for
no one has a riglit, by his own voluntary act, to surrender his
liberty, or part with his life. Tiie state, the public, have an
interest in the preservation of the lil)erties find lives of tho
citizens, and will not allow them to be taken away ' without
due process of law' (Const., art. 1, § 0), wlien forfeited, as they
may be, as a punishment for crimes. Criminal prosecutions
proceed on the assumption of such a foi-feiture, which, to sus-
tain them, must bo ascertained and declared as the law has
prescribed. . . . These considerations make it apparent
t !iat the right of a defendant in a criminal prosecution to affect,

670

AMERICAN CRiailNAL REl'ORTS.

j|.^:i.i ';.?%..■

by consent, tlic conduct of the caso, sliould bo much more lim-
ited in civil actions. It should not be permitted to extend so
fill' as to work radical changes in great and leading provisions
as to the organization of the tribunals, or the mode of proceed-
ing prescribed by the constitution and the laws. Effect may
justly and safely be given to such consent in many particulars,
and the law does, in respect to various matters, regard and act
upon it as valid. Objections to jurors may be waived; the
court may be substituted for triers to dispose of challenges
to jurors; secondary, in place of primary, evidence may be
received; admission of facts are aUowed; and in similar par-
ticulars, as well as in relation to mere formal proceedings gen-
erally, consent will render valid what, without it, would l)e
erroneous. . . . But when issue is joined upon an indict-
ment, the trial must be by the tribunal and in the mode which
the constitution and laws provide, without any essential change.
The public ollicer prosecuting for the people has no autiiDvity
to consent to such a change, nor has the defendant. Ap})ly'!".g
the above reasoning to the present case, the conclusion neces-
sarily follows that the consent of the plaintiff in error to the
withdrawal of one juror, and that the remaining eleven might
render a verdict, could not lawfully be recognized by tiie court
at the circuit, and was a nullity. If a ditference of one juror
might be waived, there appears to bo no good reason why a
dcliciency of eleven miglit not be; and it is diHicult to say
why, upon the same principle, the entire jianel might not b(^
dispensed with, and the trial committed to tJie lowrt alone. It
would be a highly dangerous innovation in reference to crimi-
nal cases, upon the ancient and invaluable instituti(m of trial
by jury, and the constitution and laws establishing and secur-
intr that mode of trial, for the court to allow of any number
short of a full i)anelof twelve jurors, and wo think it ought not
to be tolerated."

In the case of Sfnfc v. M<f>}>ffrfVff, 41 Mo., 470, Wagner, ,1..
says: " A jury must consist of twelve -men, — no more, no less;
no other number is known to the law, — and they Tuust appear
upon the record to have rendered their verdict. Jii',r v. Sf.
Michaels, 2 Hlack., TM>; Di.ron r. U'lchnnh, 2 llow.,. 771 ; Jiwh-
Hon V. Sfot(\iS P.lackf. (Md.), 4*!l; Bi'innt v. Sfatc. f^ liiackf.,
601. ' The petit jury,' says Chitty, 'must consist of pre(!isely

TERRITORY v. AH WAH AND AH YEN.

57t

twelve, and is never to be more or less, and this fact it is neces-
sary to insert upon the record. If, therefore, the number re-
turned be le.5S than twelve, any verdict must be ineffectual, and
the judgment will be reversed on error.' 1 Chit. Crim. Law.,
505."

After commenting upon the reasons given in the case of
Cancemi v. People, Kupra, Judge Wagner furtlier says: "An-
other good and sufficient reason, it occurs to us, is that the
prisoner's consent cannot cliange the law. His riglit to b(i
tried by a jury of twelve men is not a mere privilege; it is a
positive requirement of the law. He can unquestionably waive
many of his legal rights and privileges. He may agree to
certain facts, and dispense with formal proofs; he may c(msent
to the introduction of evidence not strictly legal, or forbear to
interpose cliallenges to the jurors; but he has no power to con-
sent to the creation of a new tribunal, unknown to the law, to
try his offense. The law, in its wisdom, has declared what
shall be a legal jury in the trial of criminal cases; that it shall
be composed of twelve; and defomlant, when he is upon trial,
cannot be ])ei'mittcd to change the law, and substitute another
and a ditrcrent tribunal to pass upon his guilt or innocence.
The law as to criminal ti'ials should be based upon fixed stand-
ards, and should be clear, delinite and absolute. If one juror
can be withdrawn there is no reason why six or eight may not
be, and thus the accused, through persuasion or other causes,
may have his life ])iit in jeopardy, or deprived of his liberty
throutrh a bodv constituted in a uumner unknown to the law.
Aside from the illegality of such a procedure, public policy
condemns it. The prisoner is not in a condition to exercise a
free and iiulependent choice without often creating prejudice
against him.'"

In Hill V. People, 10 Mich., 357, the court says: "The true
theory, we think, is that the po()])1e. in their political or sov-
ereign capacity, assume to provide by law the pro])er tribunals
and modes of trial for offenses, without consulting the wishes
of the defendant as such ; and upon them, therefore, devolves
the responsibility, not only of enacting such laws, Init of carry-
ing them into effect, by furnishing the tribunals, the panels of
jurors, and other safeguards for his trial, in accordance Avith
the constitution, which secures his rights. The government,
VoL.IV-37

578

AMERICAN CRimNAL REPORTS.

'Wi-

the officers of the law, bring the jurors into tlio box ; he has
no control over the matter who shall be summoned or c(mipos(^
the panel, upon Aviiich ho may exercise the vi<rlit «)f chullouf^c;
and the prosecution must see that electors only arc placed
thereon, as the law rccjuires. But independent of all theories,
and as a practical question, wc think there would bo great dan
ger in hohling it comiwtont for a defendant in a crriniinal case,
by waiver or stipulation, to give authority Avliich it could not
otherwise possess, to a jury of less than twelve men for liis trial
and conviction; or to deprive himself in any way of the safe-
guards whicli the constitution luis provided him, in the unani-
mous agi'eement of twelve men, qualified to serve as jurors by
the general laws of the land. Let it once he settled that a
defendant may thus waive his constitutional rights, and no one
can foresee the extent of the evils which might follow ; but the
whole judicial history of the past must admonish that very seri-
ous evils shouhl lx> apprehended, and that every step taken in
that direction would tend to increase the danger. One act or
neglecjt might lie recognized as a waiver in one case, and
another in another, until the constitutional safeguards might
be sulxstantially frittered away. Tlie only safe course is to
meet the danger in litiilnr, and prevent tlic first step in tlx!
wrong direction. It is the duty of courts to see that the con-
stitutional rights of a defendant in a criminal case shall not 1»(^
violated, however negligent he may be in raising the objection.
It is in such cases, empliatically, that consent sliould not be
allowed to give jurisdiction." J^ee, also. Peaiile v. (fJVetf, 4H
Cal., 25S; Carpenter r. /Sfatc, 4 llow. (Miss.), 1(»3; Jar/,sfm r.
State, Blackf., 4G1; Brmrn r. Staf(\ 10 Ind., 49fi; Boiclen v.
State, 5 8nocd (Tenn.), SOO; Bell r. State, 44 Ala., J'.O.'J; WUh'ams
V. Stat<>, 12 Ohio St., i\±l; AUm v. State, 54 Ind., 4(51 ; 1 liisli.
Orim. Proc, § 701; Protf. Jur., § 113; State v. MeCleai', 11
Nov., :?(>, (50.

The opiKJsition to these authorities is that of State v. Kauf-
man, 51 lowii, 57s {S. C, 2 X. W. Hep., 275), whore it is held
that, upon a trial for crime, the dcfcnchmt may waive his right
to a trial l»y a jury of twelve men, and with his consent may
be tried before eleven jurors. This decision cites for its sujv
port the cases of Com. v. Dailcy, 12 Cush., 80; Murphy v. Com.''
I Mete. (Ky.), 305; lyra v. Same, 2 Mete, 1; which caseawcro

BURKE V. THE STATE.

579

; ho has

C()lnpoS(^

c placed
tlicorios,
I'CJit dan
inal case,
jould not
I'liis trial
the safe-
lie unani-
jurors by
d that a
id no one
; but the
very seri-
takon in
10 act or
*ase, and
ds might
rse is to
}p in tli(!
t the con-
ill not 1)(^
:)bjcction.
d not be
rjVeU, 4H
acl'mn v.
Boxcles r.
WiUlamn
; 1 Bish.
Cleav, 11

•: V. Kavf-
it is held
■ his right
sent may
ar its sujv
yv. Com.-'
laseswcrc

misdemeanors, and expressly limit their application to misde-
meanors only, and therefore cannot properly be cited as author-
ity in cases of felony, and especially not in capital cases. Wo
therefore hold that the court erred in permitting the trial to
proceed to a verdict after the withdrawal of one of the twelve
jurors. The verdict of eleven jurymen in a capital case is a
more nullity, and any judgment rendered thereon against the
defendants is without jurisdiction, and void.

This conclusion renders it unnecessary for us to consider any
of the other questions presented in the argument of counsel.

Reversed and remanded.

BuRKK v. The State.

(66 Ga., 157.)

WrrNESSEs: ^rrcsi o/ — Forgery,

1. Brevity and un'ceiitainty of forcjed instrument no bar to convic-
tion. — For forging iin instrument in these terms : " George, let the boy
luive $2 worth of wliat ho wants," an indictment will lie; the other con-
stituents of forgery concurring, the brevity and uncertainty of this
instrument will not prevent a conviction. Such paper was not inad-
missible in evidence on account of uncertainty.

L'. Arrest of defendant's witnesses in presence of jury.— It is error
for the court to order the arrest of the defendant's witnesses in the
presence of the jury before whom they have just given their testimony,
.and to have them then and tliere arrested on account of what they
liave testified. To do so amounts to an intimation from the bench that
their evidence is faJse.

Before Judge Ilillyer. Fulton Superior Court.

L. J. Gk'nn cfe Son and E. A. Angler, for plaintiff in error.
H. II. Hill, Jr., solicitor-general, by brief, for the state.

(JuAWFortn, Justick. The plaintiff in error was indicted in
Fulton superior court for forgery and counterfeiting, and on a
second count with uttering and publishing as true a certain
forged order, of which the following is a copy :

" George, please let the boy have $2 worth of what he Avants.

" October the 1st, 1878. W. C. Peck."

5S0

AMERICAN CRIMINAL REPORTS.

1. The defendant demurred to the indictment upon tlie
groiinl tiiat the order wliich was charged as a forgery was so
incoiuploto and imperfect that no one couhl have been de-
frauded by it, and no recovery could have been had upon it by
suit. The court overruled the demurrer, and this constitutes
the first assignment of error. This ruling of the court was
fully sustained and covered bj' the decision in the case of John-
son V. The State, G2 Ga., 299.

2. The second objection to the ruling of the court was in
admitting in evidence the order itself to the jury, which we
hold was legal.

3. Because the court erred in commanding the sheriff to iw-
rest Ed. Martin, Bcttie l\rartin and Elizabeth Ward, matciTil
witnesses for the defendant, in this, that the order of an'(>st
was given in the presence and hearing of the jujy, and said
arrest being made in the presence of the jury trying the case,
said arrest being made because of the evidence just given in
by said witnesses, and such arrest tending to throw discredit
upon their testimony to defendant's injury.

This ground, when aiudyzed, states that after these wit-
nesses had testified the court commanded the sheriff to avrent
them, and that the order to arrest was given in the presence
and hearing of the jury, and that the arreM was made in the
presence of the jury, an<l made because of the evidence just
given in by them. The defense of the accused rested u})on an
alU)'i', these witnesses liad just sworn to its truth; whether it
was so or not must rest alone with the jury.

Tlie iiilluence and power of a j.ist and upright judge over
the minds of jurors in his court, jointly trying with liimseH"
the guilt or innocence of a party charged with crime, is
scarcely to be estimated. Indeed, in all cases, to their cr<'dit
bo it s[)oken, they listen with attention to his utteranc<'s, and
endeavor to follow what tlHjy conceive to be his views of the
justice of the particular cause before them. Hence, our law
provides that if a judge, during the progress of a case, or in
his charge to the jury, shall exjn'ess or intimate his opinion as
to what has or has not been proved, or as to the guilt of the
accused, then a new trial shall be granted. We think that the
arrest of witnesses who had just testified for the defendant,
under the circurastancos stated in the bill of exceptions, and

BURKE V. THE STATE.

581

which arc testified to be true by the judge, is such an expres-
sion of o})inion, not only as to what had been proved, Init also
as to the guilt of the accused, as to bring this case within the
meaning of section 3248 of the code, and therefore we are re-
(juired to grant a new trial therein.

Judgment reversed.

Note.— In The People v. Wolcott, 51 Mich., 613, one George Harrison, a
witnesH for the defendant, wa.s asked, on cross-examination, whetlier ho had
ever been arrested, and whether he did not know there w.as a wai'rant out
for him, and whether he did not know that the slicriff had such a warrant
then. The record then proceeds as follows:

Counsel for Respondent: "What did you insinuate that for?"

Prosecuting Attorney : " It is true."

The witness then left the stand, and was immediately arrested by the
sheriff in court, in presence of the jury, and taken to jail.

Cimnsel for Respondent to the Court: "I would like to know what kind
of a performance this is, for the sheriff to take my witness out of the court
r<K)m."

The Cotirt : " You excused liim from the stand, and he said he had a wiu:-
rant for him, and he took him on the warrant."

Counsel for ResiKUident : " I supposed I had a right to liave him here." By
direction of the court he was produced in custody of the sheriff.

Mr. Justice Cooley, speaking for the court, says : " It is very plain that the
court iierceived the wrong of this theatrical arrest, and its necessary tend-
ency to prevent justice, and it is to be regretted that he did not promjjtly
and decisively rebuke it. No one can feel assured that a trial in the course of
which such a transaction can take place has })een fair or just : there is a
suggestion about it of brow-beating and terrorism that may have affected
witnesses and jurors beyond what can be shown; and it was so entirely un-
necessary to any proi)er purpose that it cannot be overlooked." For this and
other improper things which transpired on the trial, a new trial was gi-anted.

582

AMERICAN CKIMINAl REPORTS.

RECENT CROWN CASES RESERVED.

The Quken v. Manning.

(12 Law Rop., Q. B. Div., 241.)

CoNSPraACY — Indictment and trial op two, both must be convicted
OR acquitted. — Wlicre twojicrsons aro indicted for conspiring together
and they are tried together, both must be ac(iuittcd or both convicted.

This was a rule obtained on behalf of the defendant Man-
ning, calling on the ])rosecutor to show cause why the verdict
for the crown should not bo set aside and a new trial liad.

An indictment was ]>referred against the defendants Man-
ning and Ilannam for cons[)iring togetiier to cheat and defraud
the prosecutor. The case was removed by certiorari and tried
on the civil side at the last summer assizes at Winchester before
Lord Coleridge, C. J., and a special jury. The jury wore di-
rected that on this indictment they might find one prisoner
guilty and accpiit the other. Th(>y returned a verdict of guilty
against Manning, but were unable to agree as to Ilannam, and
were discharged from giving a verdict. Manning was put
under recognizance to surrender to receive judgment in tlui
queen's bench division, and the trial of JIannam was postponed.
This rule was obtained on the ground of misdirection.

Matiikw, J. In this case 1 have come, after considerable
doubt, and I confess with great reluctance, to the conclusion
that there must be a new trial. The man who was convicted
had a perfectly fair trial, and a summing up distinctly in his
favor, and every precaution was taken which could be taken
to ])revent any evidence being acted on by the jury which
could not be legitimate evidence against him. Nevertheless,
I am satisfied by the argument of Mr. Charles that there is an
imperative rule of law which should have prevented my lord
froni informing the jury, as he did, that it was possible in such
a case to convict one of the men and to acquit the other. The
rule appears to be this: In a charge for consj^iracy in a case
like this where there are two defendants, the issue raised is,
whether or not both the men are guilty, and if the jury are

«■

Tnr; queen v. manning.

583

not satisfied as to the guilt of either, thoji both must be ac-
♦juittcd.

In Hex V. Cooke, 5 W & C, 538, the court could not liavo pro-
nounced the jud;,Muent they did unless they had assumed the
existence of the rule. So in Itog. v. Thompson, 10 Q. B., 832,
it appears that the court were of opinion that this rule ex-
isted. The authority does not rest there. There is, in addi-
tion, a ])assa<^e in the judgment in liohlnxon v. lioh'atnon, and
Ijine, 1 S\v. k, Tr., 302, in which tlie rule of law is treated as
perfectly clear. 1 Sw. «fe Tr., at p. 31)2. Lastly, there is the
judgment of the house of lords in iTConnell v. The Qncnn, 11
( 'I. it v., 155, which seems to me to be another clear illustration
of the rule. It ai)pears to me, tlierefore, that the direction given
here was one which should not have been given to the jury,
and that there must be a new trial.

SfKiMiKX, .1. I have arrived at the same conclusion with
great reluctance, aiul entirely upon the autliority of the pas-
sage in aConnell v. The Queen, 1 1 CI. k F., 155, p. 230. The
decision is of tluOiigliest autliority, and clearly shows that it
is a legal impossil»ility that when several persons are indicted
For a conspiracy, any verdict should be found which implies
that some weiu^ guilty of one conspiracy and some of another.
With regard to the other two cases which bear upon the mat-
ter, nanu'ly, Uee r. ('aoke, 5 15. »fc C, 5r>S, and Jieff. v. Thomp-
son, 10 (i. B., H32, I should have had no difficulty in saying
that I thought they left open the matter which O'Connell v.
The Queen, 11 ("1. k. V., 155, p. 2;)0, ajjpears to have decided.
In Rohlnxon v. Hohinmn and Lone, 1 Sw. & Tr., 3(;2, 1 think
the i)art of the judgment relating to the criminal law is a mere
dictum. The rule applicable to divorce cases is, as it ajipears
to me, founded on common sense, and general principles would
be in favor of the contention which is raised on the present oc-
casion by the prosecution. I cannot, however, see any distinc-
tion between the rule that should apply to the present case and
that cited from (TConneU v. The Queen, 11 CI. & F., 155,
p. 230, and that being so, I think the direction cannot be sup-
ported.

Lord Colkridok, C. J. I have some time ago come to the
conclusion that I misdirected the jury. At the trial I had not

584

AMERICAN CRimNAL REPORTS.

the cases of Rex, v. Cool'e, 5 B. & C, 538, or Reg. v. T/tomj)son,
16 Q. B., 8o2, before me, wliicli I confess seem to me much in
point. But wliat influenced me at the time was that it scome<l
difficult to distinguish in principle between the rules thaf
sliould govern such a case as the present, and the practice
which had obtained in the divorce court in Rohhison v. Roh'n>-
soti and Lane, 1 Sw. & Tr., 3(52, and Stone v. Stone and Apple-
ton^ 3 Sw. *fc Tr., (JOS, and other cases of that description, and
which is based on the fact that tliat wliich is evidence against
one person is by no means necessarily, by om* law, evidence
against another. It follows that wheix) there is a joint offense
which has to be proved against each person separately, tlie evi-
dence which is surtieient to c(mvict one person of the offense
may not by any means be sullicient to convict the other. The
princi[)les of the practice of the divorce court in this nuitter
seem to me to be sound, and they ought to be ai)plled to anal-
ogous cases. I am by no means prepared to say that if th«'
nuitter were ven Integra, and even in this case if there could
have been an appeal from this decision to some other ti'ibunal.
[ might not have adhered to my view, and left the i)oint to be
settled by higher authority. But 1 feel bouiul by what I now
understand to be the e.itablished rule of practice. The earlier
cases, it is true, ar*; stated shortly and without much particulai-
ity of detail. It may be. if we had all the facts of those cases,
they niight turn out to be less in point than they appear to be
at present; but still from the time of the 14 lien. 4 {Tliodifs
Oa.se, 14 Hen. <», ii.") b), and in note to /**(./• v. Cooh\ 5 B. & ('..
.')41, it has been taken for grant(>d by the judges of these
<!ourts, that in cases of an indictment for conspiracy, whei-e
two people are indicted and are tried together (because differ
ent considerations arise where i)eople a'-e not tried together),
either both must be convicted oi- both must be acipiitted. That
seems to me to have been determinetl, or, if not determined,
taken for granted, from very early times.

Coming <lown to later times, the same thing must have been
in the minds of the Jud^^^cs who decided the cases of Rex r.
Cooke, 5 B. & C, 538, and Reg. v. Thompson, 1(5 Q. B., 832.
There are distinctions, I quite agree, which prevent either of
those cases being directly in point; but in 182(] the court of
king's bench, though it did not decide, certainly seems to have

THE QUEEN v. MANNING,

585

assumed, as the principle underlying this whole matter, the
rule which has been contended for on behalf of the defendant.
In lieg. v. llioinpsoii, IG Q. B., 832, although Erie, J., differed
on a particular point from the three other members of the
court, he dillered on a pure point of pleading, and not from
the principle which the other three judges assumed or laid
down. Erie, J., does not say a word to the contrary of that
[)rinciple; in fact, he rather assumed it, because he tried to
supi)ort the conviction upon a ground on which, technically as
a uuitter of pleading, I should think he was wrong, namely,
that " persons unknown " could be construed to mean tiie two
persons who, in the particular circumstances of that case, the
jury were unable to agree about. Then there is the case of
( y Connell v. The Queen, 11 CI. & F., 155, which assumes this
point as the rule of practice, and upon that, although there
was a ditreienco of opinion upon other points, the judges
agreed. The principle which underlies that decision is that
where there are one or more persons charged with conspiracy,
the count is a single and complete count and cannot be sepa-
rated into i)art3. The principle is the same here. I certainly
directed the jury conti'ary to that pi'inciplo: therefore I mis-
directed the jury, and the rule must be absolute for a new
trial. I think it riglit to mention that I have not forgotten in
sitting in this court the rule as to hearing apjilications for a
new trial (Ord. XXXIX, r. 2), but in those rules there is an
exception of criminal proceedings, and as this is a criminal
proceeding, I have thought it right to take part in this judg-
ment.

Rule absolute for a iiew trial.

Solicitors for prosecution: Sole, Turner cfe Knight, for H. R
Hooper, Newport, I. W.

Solicitors for defendant: John Turner & Son, for F. P.
Henry, Newport, I. W. A. M.

58G

AMERICAN CRIMINAL REPORTS.

The Queen v. Malloky.

(13 Law Rep., Q. B. Div., 33.)

Evidence : Husband and wife — Statement of wife in presence of husband —

Admission.

Upon the trial of a prisoner for feloniously receiving stolen property, a list
of the stolen articles which the prisoner, who was a marine store dealer,
had bought, wiis received in evidence in order to sliow that he liad
bought at an under value. Tlio circumstances under whicli tlie list was
written were as follows : A police constable asked the prisoner to con-
sider when he liad bouglit the stolen property, to whit;h tlie i)risoner re-
plied that his wife should make out a list of it, and on tlie n(>xt day tlie
prisoner's wife, in her husband's presence, handed to anotlu'r constable
the list tendered in evidence, sajing in her huslwind's hearing, "This is a
list of what we Inniglit, and wliat we gave for tliem.' The question
reserved wtis wliethcr such list was properly admitted in evidence.
Held, by the court (Lord Coleridge, C. J., Grove, Field, Steplien and
Smith, JJ.), that the list was clearly admissible in evidence.

The followinj^ case was stated for the opinion of this court:

" Tlie prisoner, tieorge ^lallory, was tried at the cast riding
of Yorksliire quarter sessions, held at Jjcverley, on tlic 9th
of April, l:ss+, for receiving certain articles, the property of
Agnes Fitzpatrick, knowing the same to have been stolen.
The prisoner was a marine store dealer, and it ap[)eared from
the evidence that the stolen articles v ere such as he might
have bought in the lawful exercise of his business. It was not
disputed by the prisoner (who was represented by counsel i
that the goods had been actually stolen by the man who
brought them to his shop, and the price given by the prisoner
for the articles thus became a material (]uesti<m in the case.
With the object of shewing that the amount so paid was mudi
less than the real value of the stolen goods, the counsel for the
prosecution proposed to put in evidence a list of the articles
bought by the i)ris()ner, with the amount paid by him for each
of the sevwal articles.

" The circumstances under which the list was tendered sulli
ciently ap|)ear from the following notes taken at the trial:

"John Duke, police-constable (after explaining the tracing',
etc., of the stolen property), says: ' I asked Mallory when he
bought them. lie was much put out, and said ho could npt
say, and I asked him to consider, and he said ho would, and his
wife would make out a list.' This was on the JJOth.

lusband —

crty, a list
ore dealer,
lilt ho liad
ho list was
lor to oon-
>risoner ro-
'xt day the
■ constable
"This is a
quoHtioii
evidence,
eplieu and

lis court:
st riding
tlic 9tli
oi)orty of
■11 htolcn.
ircil Iroin
lie iniglil
t WHS not
f counsel i
nan who
) prisoiK.T
tlio case.
WiXS iiuicli
;el for tlic

articles

1 for each

ered sulli
trial:
le tracinj.',
f when h(>
could npt
Id, and his

THE QUEEN v. MALLORY. ggf

" William "Winterbottom, superintendent of police, said: 'I
went to the prisoner's house on the 31st; prisoner and his wife
were there, and the wife in her husband's (Mallory's) presence
handed me a list of goods with dates and prices ; she said, " this
is the list of wliat we bought and what we gave for them."
The prisoner did not speak, but he heard what she said, and
saw the list handed to mo. I believe the whole of it is in the
wife's handwriting.' This witness then produced the paper,
and the counsel for the prosecution tendered it in evidence.

" The counsel for the prisoner objected to its admission on
the grounds :

" 1. That the wife would be the proper person to prove its
contents, and the evidence of a wife is not admissible against
or fpr the husband.

" 2. The pa[)er is neither more nor less than the evidence of
the wife against the husband, and is therefore inadmissible.

" 3. There is no evidence that the husband knew or saw the
contents before it was handed to the superintendent, nor that
it was made by his direction, and in a criminal case the wife
cannot be the agent of her husband.

" I admitted the paper (^wliich was read to the jury by the
clerk of the peace), reserving for the consideration of the court
of crown cases reserved the question as to whether or not I
was right iu doing so. It was proved that the value of the
stolen pro[)erty was greater than the sum shown by the paper
to have been paid by the prisoner. There was no other evi-
dence of the price ho paid.

" The jury convicted the prisoner. The question for the
court is whether the paper above mentioned was rightly ad-
mitted in evidence. If so, the conviction is to stand ; otherwise
to be quashed. The list was as follows :

1884. £. s. d.

!23 January. Brass rods 1 6

23 " Sheets, table cloths, towels

24 " Blankets, canvas, knives, forkrt, spoons, 3 pillows. . 13

25 " Tea service, 2 cruets, o pillows, piece carpet 13

20 " Featherbed 14

28 " Two feather beds, small looking ^liiss 1 12

20 " One lookinK Rlass ornaments 6 0"

liORD CoLKKiDOE, C. J. If tliis luul 1)0011 comuiunicated to
the ix)lice in the absence of the pris(jiior by the prisoner's wife,

688

AMERICAN CRIMINAL REPORTS.

I niiglit have doubted whether the evidence could have bo(Mi
admitted ; but here the prisoner, upon being asked questions,
says, in substance, " my wife will make out my answer for mo,"
and then on the next day another policeman goes there, sees
the liusband and the wife together, and then the wife hands over
the statement which her husband had ordered her to make out
for him. She hands it over as her husband's stateuicnt, and in
hie presence, and he never denies this or says that there is any
mistake with regard to it. Had he wished to contradict the
list or his wife's statement, he could have done so; he did not.
and the evidence is clearly admissible.

Gkove, Field, Stephen and SMrni, JJ., concurred.

Conviction affirmed.

The Queen v. Maurer.

(10 Law Rep., Q. B. Div., 513.)

ExTKADiTioN : Jurisdiction — Habeas corpus.

The court has no i>ower to review decision of magistrate on ground
IT IS AGAINST WEIGHT OF EVIDENCE. — Upou an applitation for a habcan
corpus in tlic caso of a fii>j;itive criniinal conuniltod by a police magis-
trate, under the extradition act, the court lias no power to review
the decision of the magistrate on tlie ground that it wjis against tlic
weight of the evidence hiid before liim, there being sufiicient evidcnic
before him to give him jurisdiction in the matter.

This was an aj)plication for a haheas corpufi in the case of
one Maurer, for whose extradition tlio (Jerman government
had applied under the treaty between (Jermany and this coun
try, in respect of an alleged crime against the bankruptcy
laws of Germany, and who had been committed by a police
magistrate to await the warrant of the secretary of state for
his extradition for such crime.

Bowen liowlands, Q. C, moved for a rule nisi accordingly.
lie contended that there was no evidence upon the deposition
before the magistrate that the prisoner bad been guilty of any
bankruptcy crime according to the law of England, and con

lavc boon
questions,
V for Hie,"
here, socs
ands over
make out
nt, and in
ere is any
[•adict tiic
e did not.

affirmed.

: ON GROCM)
for a hubcor.
olico magis-
T to review
against the
iut evidfiit (■

10 case of
>vernmcnt
this coun
[inkruptcy
y a i)olico
I state for

cordinglj.
ilcposition
Ity of any
, and con

THE QUEEN v. MAURER.

scqiiontly no evidence of an extradition crinie within the ex-
tradition act, JS70, sec. 2G, He further contended, in effect,
that the nia<^isti'ate was wrong in deciding, upon the evidence
before him, that there was a prima facie case against tlie
prisoner of a bankruptcy crime according to the law of this
country, and tliat sucli decision was against the weiglit of the
evidence. [He cited Ilaguet's Case, 2!) L T. (N. S.), 41 ; Chii-ke
on Extradition, 2d ed., p. 15G.]

FiRLD, J. I think that this ap[)lication must be refused. It
is clear that the provisions, both of the extradition act and the
treaty, require that the crime for which the extradition of
the criminal is to take place, should be a crime according to the
laws of both the contracting states. The ninth and tenth sec-
tions of the act provide that, when a fugitive criminal is
brought before the police magistrate, lie sluill hear the case in
the same manner, and have the same jurisdiction and powers,
as near as may be, as if the jn'isoner were brought before him
cliarged with an indictable olfonsn in England; and if the for-
eign warrant authorizing the arrest of such criminal is duly
authenticated, and such evidence is produced as (subject to the
provisions of this act) would, acccmling to the law of England,
justify the committal for trial of the prisoner if the crime of
which he is accused had been committed in England, the pohce
magistrate shall commit him to prison, etc.

The counsel for the pris(mor has put forward two grounds
for this api)lication. Taking the second ground first, it is that
on the balance of the evidence laid before the magistrate such
evidence was not suificient to justify the conclusion to which
the magistrate came. On that question we were referred to
IIiKjucfs Case, 29 L. T. (N. S.), 41, and the observations made
on that case in Clarke on Extradition, 2d ed., p. 150, The
author there says: "The very important question was raided
in that case whether the court woidd examine the suificiency
of tlio evidence before the police magistrate, and the court held
that it was not called upon to do so. In that case, Martin, IJ.,
said, in giving judgment: ' The question is, whether this was
a proceeding within the jurisdiction of Sir Thomas Henry. I do
not say that if there had been no evidence before him, or ho
had acted contrary to law, wo would not have discharged the

590

AMERICAN CRIMINAL REPORTS.

^i)

prisoner ; but it appears to mo that all the procccflinf^s have
been properly taken. This is not a court of appeal from his
decision, and it is for him to decide whether or not the evi-
dence is sufficient.' This question of the ])o\ver of the court
to examine tlie Aveight as well as the competency of the evi-
dence before the police magistrate has been much ari^ued and
VTr''- ^ly decided in the United States, and will probably bo
d' •' i i-^ ' further in England. The case mentioned above is
g' y loah' i' not conclusive of the matter."

It appears to me, however, that the decision in Ifngurfs
C/isc. '"> L. f (N^. S,), 41, is completely in accordance with the
princii)les u[«()n \vlr.;h the courts act and have always acted
with reference to the adjudications of justices in general, and
without that decision I think wo should have come to the same
conclusion. The statute savs tiiat the majjistrato shall have
the same jurisdiction, as nearly as possible, as if the prisoner
were brought before him charged with an indictable offense in
England. So long as the magistrate keeps within his jurisdic-
tion we have no j)ower to interfere with his decision. It is only
when there is no jurisdiction, as when there is no evidence
before the magistrate, that we can interfere. It seems to me
that in ffiifji(,'f>i Cmr, 29 L. T. (X. S.), 41, all the judges
intended to decide that it was not for this court to weigh the
evidence, if there was any rcasouable evidence of an extradi-
tion crime for the nuigistrate to act upon. If there is such
evidence the magistrate is not going beyond his jurisdiction in
committing the prisoner upon such evidence.

The remaining point is, whether there was any reasonable
evidence for the nuigistrate that the prisoner had committed
an extraditi<m crime. [His lordship then discussed the facts
as appearing on the dejjositions laid before the magistrate.]
It seems clear to me that, upon the facts appearing from the
depositions, there was evidence against the prisoner of the
crime alleged against him.

Matukw, J. I am of the same opinion. Tlie conditions
of the ma,";ist rate's jurisdiction are clearly indicated by the
extradition act. The crime in respect of which extradition is
sought must be a crime against the law of both the contract
ing states, and there must be prima facie evidence that the

THE QUEEN v. HOLMES.

591

Tigs havo
. from his
b the cvi-
tho court
f the cvi-
<^uo(l and
>bal)ly 1)0
above is

I witli the
lys acted
icral, and

tlie saino
hall have
3 prisoner
offense in
} jurisdic-
It is only

evidence
sms to nie
10 judges
ivcigh the
n extradi-
c is sucli
diction in

easonahle
ommitted
the facts
Lgistrate.]
from the
er of the

conditions
:mI by the
■ad it ion is
contract-
5 that the

prisoner is guilty of such crime. There must be sucli evidence
as, according to the law of England, Avould justify the magis-
trate in committing the prisoner for trial if the alleged crime
had been committed in England, It appears to me that in
the present case there was such evidence. I agree with my
Brother Field that, there being such evidence, we have noth-
ing to do with any question as to the weight of the evidence.
There is no provision in the act giving any right of appeal to
us against the magistrate's conclusion. The only application
open to the prisoner is for a writ of haheas corpus, and that
a[)plication can only succeed when the magistrate has exceeded

his jurisdiction.
• Application refused.

TiiK Queen v. Holmes,
(12 Law Rop,, Q. B. Div., 23.)

Fai£E pretkn'ses — Venue — Piace of trial,— H. wrote and posted at N.,
in England, a letter addressed to G,, at a place out of England, con-
taining a false pretense, by means of which he fraudulently induced G.
to transmit to N. a draft for ir)0?,, which he there cashed, Held, by
the court (liord CoUn-idge, C. J., Denman, ILawkins, Williams and
Mathcw, JJ,), that there was jurisdiction to try IL at N. ; that the
pretense was made at N., where also the money obtained by means of
it was received.

Case stated by lIunnLEs^rox, B,

'' The prisoner was tried and convicted before me at the
assizes at Nottingham, on Thurs<lay, the 2()thof July, 1883, for
obtaining from Louis Gabct 150/, by false pretenses.

" Tlic prisoner, who was a machine manufacturer at Kotting-
ham, had entered into a contract at Cawdry, in France, to build
at Nottingham, for (iabet, a lace machine, to be completed
within a certain time, to l)c paid for on certain terms, and to
be sent to France to Gabet. The prist>ner had written at Not-
tingham a letter containing the pretense, which was proved to
bo false, and in consequence ol" which the prosecutor had
pjirted with his money.

"The letter was written and posted at Nottingham, and re-
ceived by the prosecutor, Gabct, at Cawdry, in France, from

592

AMERICAN CRIMINAL REPORTS.

whence a d'-aft for 150^. was sent according to and in com-
pliance with the directions of the prisoner contained in his
letter. The draft was received by the jn'isonor in Nottingham
and cashed there.

" It was objected on the part of tlio prisoner that, as the false
pretense was made in England, but did not op.orate to obtain
the money until it reached its destination in France, no offense
was committed over which the English court had jurisdiction.

" For the prosecution it was contended that, as the reprcsen
tation was made in England and the money received there, tiu;
offense was within the English jurisdiction. Jte^j. v. Coolr, 1
F. & F., (54, was quoted.

"The only (piest ion for the court is, whether the prisoner
could be indicted and tried for the offense in Xottingham. If
he could, the conviction is to stand ; if not, the conviction is to
be quashed."

Lord Coi.kridgk, C. J. This conviction is perfectly proper.
The charge was of fraudulently obtaining money by false pre-
tenses, and that charge was proved ; but a question is reserved
as to whether the ])lace of trial was a corn^ct place in which
to try the prisoner. There is no doubt that it was correct; it
appears, if authority bo needed, from the case of Hex v. livv-
dett, 4 B. & A., 05, that when a letter such as the one in ques-
tion is posted the pretense is made, and here it appears the
money is actually received and obtained .as well as the letter
■[X)sted in Nottingham. Of the two necessary ingredients of
the offense both take place in Nottingham. It maybe that
one important part of the offense taking place in Nottingham
would be sufficient, but here both ingredients take place at
Nottingham,

Dexman, J. I think the conviction should be affirmed, and
I am disposed to think the case covered by AVr/. v. CooJce, 1 F.
& F., 0-1-. In that case it seems to have been hold the man ob-
tained the money in Northampton, whore he wrote the letter,
though it was paid over in Westminster, so that this would bo
an a fortiori case as compared with that.

Hawkins, J. There is no doubt about this cas' : the convic-
tion is right ; every element occurred at Nottingham ; whatever

THE QUEEN v. STEPHENSON,

593

the prisoner did, he did there. If the conviction were quashed
it would enable fraudulent people to carry on a profitable
trade in false pretenses with impunity.

"Williams and Matiiew, JJ., concurred.

Lord Colekidgk, C. J. I prefer not to rest my judgment
upon lieff. V. Cooike^ 1 F. & F., Gl, because perhaps that convic-
tion may have proceeded on the third count of the indictment.
In saying this I do not intend to cast any doubt upon the case
of Reg. V. Cooke, 1 F. & F., 04, but my judgment is independ-
ent of that case.

Conviction affirmed.

The Queen v. Stephensox and another.

(13 Law Rep., Q. B. Div., 331.)

Inquest — Destruction of body to prevent.

Destroying dead body to prevent holding of inquest thereon.— It
ia a misdemeanor to burn or otherwise dispose of a dead body with in-
tent thereby to prevent the holding u^wn such body of an intended
coroner's inijuost, and so to obstruct a coroner in the execution of his
duty, in a case where the inquest is one which the coroner has jurisdic-
tion to hold. A coroner has jurisdiction to liold, and is justified in
liolding, an inquest, if he honestly believes information which has l^eon
given to liim to be true, wliich, if true, would make it his duty to hold
such inquest.

The following case was stated by Hawkins, J. :
" These defendants were tried before me at the assizes
holden at Leeds on the 1.5th day of May last, upon an indict-
ment in substance charging them Avith having burnt the dead
body of an illegitimate infant child (named George Stephen-
son), to which the defendant, Elizabeth Stephenson, had re-
cently given birth, with the intent to prevent the holding of
an inquest upon it. The defendants were both found guilty ;
but I deferred passing sentence, and admitted them to bail
until the opinion of the court of criminal appeal could be ob-
tained upon certain questions of law which I reserved at the
request of their counsel. The defendant Elizabeth was, on
the 17th of December, 1883, confined of the child in question
Vol. IV— 38

AMERICAN CRIMINAL REPORTS.

at tlio house of a ]\rrs. Atkinson, at Cayton, near Scarborough,
in the north riding of Yorkshire, with Avhom it lived until its
death on the morning of the 12th of January last.

'" On the 9th of January tlie defendant, Elizabeth, took it
out for the day — it was then quite well — but on the follow-
ing day it was very poorly and had fits, and it remained ill
until its death. The dead body remained in the house of Mrs.
Atkinson until the night of the following ^londay, when it
Avas surreptitiously taken away by the two defendants and
burnt, with intent to jii-event the coroner from holding an in-
quest upon it. The defendant Ann is the mother of Elizabeth,
and they lived together at Cayton in a cottage opposite Mrs,
Atkinson's.

" It is fair to the defendants to say that there Avas no evi-
dence bef<n'e me to show that the death of the child was du(!
to any misconduct of tiieirs, but nevertholess the police, in the
discharge of their duty, communicated to the coroner for the
north riding the fact of the death of the child, and such in-
formation respecting it, the honesty and loim Jiih'>t of whic \
he had no reason to doubt, as led him to the conclusion that
it was his duty to hold an intpiest upon the body. There was
no pioof that the inforriiation given to tlie co/cdier vas true,
bat the coroner honestly belicn'od it to bo so, aiid it nuist be
taken as a fact that if the information was true it Avas the im-
poratiA'e duty of the coroner to hold an incpie.-it. The coroner
accordingly appointed the afternoon of the following day —
Tuesday, the 15th of January — for the holding of sucli inquest,
and of this the defendants had kno\v]ed<j:c on the ^londav
e\'cning. The jury Averc duly assembled and the coroner
attended pursuant to his a])pointment. The inquest, howe\'er.
could not be holden because the body Avas not forthcoming, it
having boon, on the night of the Monday, secretly taken from
the house of Mrs. Atkinson and burnt l>y the two defend-
ants as above stated. At the close of the case for the prose-
cution the learned counsel for the defendants (^[r. Stuart-
Wortley for Ann, and Mr. Millor for Elizabeth) ol)jected to th(~
sullicicncy of the indictment that the ])reliminarv averments
do not allege that the case AA'as not a proper one for an inquest.
or that the proposed inquest Avas one Avhich ought to be held ;
that the information on Avhich the coroner acted should havt;

THE QUEEN v. STEPHENSON.

50.")

borough,
until its

1, took it
e follow-
liiined ill

of Mrs.
, when it
iints iind
vr an in-
slizabeth.
•site Mrs.

IS no evi-

1 was clu(;
ce, in the
T for tlic
1 sucli in-
of w])ic I
ision that
'liore Avas
Vs .IS true,
:, nuist he
[IS the ini-
coroner
1"^ dav-
'h inquest.
! ^londay
3 coroner

however,
coniin*^, it
iken from
o defend-
tlio prose-
>. Stuart-
tcd to the
avernientsi
m inquest,
o be held ;
lould hav(^

been set out, and it ouglit to have been shown that the case
was one in wliich the coroner was bound to hold an inquest.
I reserved these objections for tlie opinion of this court. It
was then objected tliat there was no evidence of tlie truth of
the information given to the coroner. I overruled that ob-
jection, and held tluit if the information given to the coroner,
and honestly believed by him to be true, was such as, assum-
ing its truth, to make it his duty to hohl an inquest, lie was
fully justified in directing the inquest to be holden; and that
the jurisdiction of a coroner to hold an inquest does not de-
pend upon the truth of the information furnished to him, but
upon his hona fide belief in the existence of circumstances
communicated to liim. which, if true, would make it hi.-, duty
to interfere and hold a court of inquiry on view of the body.
I gave Ml*. Stuart-Wortley leave, however, to raise this question,
if he thought fit, on the argui ^nt of this case.

" It must, however, be taken that, assuming the circumstitnces
brought to the attention of the coroner to be facts, he was
al)un(l;intly justified in the course he took. The learned coun-
sel for the defendants further objected that, assuming the coro-
ner to have rightly determined to hold the inquest, and the
defendants to luive secreth"^ obtained, and burnt and disposed
of the body, with the intent to prevent the inquest being held,
and so to obstruct the coroner in the execution of his duty,
that did not amount to a criminal offense. I held that it did.
and, having directed the jury in accordance with these rulings,
the jury found both defendants guilty.

" I reserved the questions of law above raised for the opin-
ion of this court. If my rulings are correct, and any one or
more counts of the indictment are good, the conviction is to
stand. If otherwise, 'it will bo reversed."

S'lrnrf-Worfl^;/ and //. G. T(i>/'o)\ for the defendants. In
order to create the offense charged, it is essential to prove that
the inquest which the coroner proposed to hold was one which
it was his duty to hold. H'cj. v. Prke, 12 Q. B. D., 2-17, 2-lS.
It can be no offense to prevent a coroner holding an inquest
which it wouUl bo improper or illegal for him to hold. The
office of the coroner existed before the Statute do Officio Co-

500

AMERICAN CRIMINAI REPORTS.

ronii^oi'is (4 Echv. I., St. 2, A. D. 1270). In that statute (Iki
phrase used is "suddenly dead," but the expression has re-
ceived a recoju^nizcd nicanin<^, and does not inehide cases of
death without violence and from ordinary natural causes. The
case of Hex v. JunttvcH of Kent, 11 East, 229, 231, where a man
apj)arently in <^o<)d health sat down in a cluiir, in a s!iop, com-
plained of a pain in his hip, and suddenly died, hear:^ out this
view. The coroner, in that case, held an inquest on the body,
and was disallowed his fees bv the majjistrates, on the "round
that the in(^uest Wiis not duly hehl; and, upon an application
bei .," made to the lvini»;'s bench to interfere by nnuuhtmns to
compel the allowance of such fees, that court refused, Lore'
Ellenborou^h observin"- that it was hiyflilv illey,al for coronc
to obtrude themselves into private families, without any pre-
tense of the deceased havinu: died otherwise than bv a natural
death. Tn East's Pleas of the Crown it is said: "There ought
at least to be a reasonable sus[)icion that the party came to his
death by violent or unnatural means." 1 East, P. C, '5S2. In
Hide's Ilistoria Placetorum Corona?, it is said: "For though a
man die suddenly of a fever, or apo])lexy, or other visitation of
(iod. tlie township shall not be amerced, for then the coroner
sliould be sent for in every case; but if it bo an unnatural oi'
violent death, then, indeed, if the coroner be not sent for to
view tlu^ body, the town shall be amerced." Hale, 2 Hist. P.
C, 57. In Jarvis on Coronei's (Jarvis on Cor., 4th ed., p. 31) it
is said that there is no occasion (except in the case of a person
dying in gaol) for the intopfercnce of the coroner, unless there
be a reasonable ground of suspicion that the party came to his
death by violent and unnatural means. In the present case
the child died a natural death, so that the incpiest was one
which would have been illegal and unnecessary, had it been
held. It is not said that the coi-oner had reasonable ground
for believing the alleged facts communicated to him, but
merely that he did honestly believe them. The defendants
knew, it may be urged, that there was no ground for holding
the inquest. Reasonable belief, however, of a coroner in
statements made to him will not Justify such coroner in hold-
ing an inquest, for his jurisdiction depends upon the fact of
a sudden, that is, a violent, death.

■

THE Vt'EEN V. STEPHENSON.

jO)

["Williams, J. Is it n('C(>ssiiry for you to go so fivr iis that?
It is (]uit() possible for tlit' coroner to be justified in holding an
inquest, althou]L!,h it should turn out, when it is held, that it was
unneeessarv. It is eiU)Uj^h for you to contend that the par-
tics may be justilied in removinjj the body if the inquest is, in
fact, needless.]

Certainly a case of this land depends upon different consid-
erations fi'om a proceeding against a coroner for iin])ro]nM'ly
and vexatiously holding an iiKpiest. In /?('./• v. JiiHtlaii of
lunt, 11 East, 220, ij:)!, the court exculpated the coroner from
intentional iinproi)er practice. In An<m., 7 Mod. Rep., 15,
Holt, C J., says: " It is matter indictable to bury a man that
dies of a violent denth before the corcmcr's inquest;" and this
tends to show that to make the offense it has to appear that
the death was violent ; it is not suggested to be enough if tho
death is honestly believed by the coroner to be violent. Tho
following authorities, R<'<j. v. CleA\ 1 Salk., o77; R<'x v. Sol-
(jard, 2 Str., 1<»1)7; Hawk. P. C, book 2, ch. 9, sec. 23; Fitz. Nat.
Brcv.; Kussell on Crimes, 5th cd., vol 1, p. 020; Arch. Cr. P.,
[)p. 1, 3, were also cited.

[Stkimikn, J., referred to the Reports of the Criminal Law
Commissioners: Report 8, ch. 5, sec. 5; Rei)ort 7, p. 02.]

Mael', for the ])rosecuti()n. The statute is merely directory.
Hawk. P. C., book 2, ch. 0, sec. 21. Tlie common law duties of
a coroner are not in any way reduced by the statute.

If the law is that inquests are unlawful except where the
death was from violence, a coroner should hold a preliminary
in(piiry, and examine witnesses to see whether he ought to hold
an inquest. The jurisdiction of the court does not depend upon
the truth of the information. In lle.c v. Justice-! of Kent^ 11
East, 22t>, 231, the court thought the coroner acted unreason-
ably and vexatiously, whereas hero the information, if true,
abundantly justified, it is said, the inquest. It is always an
offense to obstruct tho execution of an act of parliament, l^'x
r. Snuth, 2 Doug., 441, per Ashurst, J.; Arch. Cr. P., p. 3;
East's P. C, vol. 1, p. 382.

Stuart- Wortley rei)lied.

GuovK, J. This conviction should be affirmed. There are
two points raised by the case which has been stated ; lirst, is it

598

AMERICAN CRIMINAL REPORTS.

indictable at common law to prevent the holding of a coroner's
inquisition? and, secondly, is there enough before us to show
that the coroner had jurisdiction to hold the inquest?

Xo case that has been referred to is absolutely in point,
but there are many cases which shew that interference with
statutory duties and the preventing of their perfornuuico is
a misdemeanor in general at the common law. It is so in
cases where statutory provisions arc, as here, for the public
benefit, and especially where, as here, the matter is one con-
cerning life and death. It is most important to the public
that a coroner who on reasonable grounds intends to hold an
inquest should not be prevented from so doing. The <,'oiise-
quences would otherwise be most formidable, especially iu the
case, I fear, of young children, for any one might prevent the
holding of an inquest by the destruction of a dead body with
impunity, unless it could bo proved that the death had been
caused by violence. The only evidence might be the exam-
ination of the body itself. It might be that the only witness
of the death, vras the murderer of the ])erson found death To
hold it no 'jlfense to prevent the administration of the law by
preventing an inquest being held, uidess pi'oof could be given
of the cause of death, and that it was a violent cause, would
sot at naught the i)rotecti(m which there is at ])resent to the
jiublic. The intjuest is itself an inquiry into the cause of death,
and the ])resent indictment is framed upon this view. The con-
trary view involves this i)rop()sit ion: that a coroner should bo
certain of the cause of death before he ventures to hold iiis
inquest. This is certainly not the law. It is certainly not
what the statute governing this matter says. A coroner acts,
and ouglit to act, upon information, not upon conclusive evi-
dence. He intpjires in cases of su(hlen death whore such in-
(juiry is desirable. Ih'octfm (Lib. Ill, l)e Conma, ch. V) and
The ^[irrour (Tlie ]\Iirrours of Justice, by Home, p. JJS) show
that the statute is but an attirmation or a con(irinati«m of tlu^
common law. In the statute there is notliing about murder.
The words are, " suddenly dead ;" and the statute requires an ex-
amination of the dead body. The whole wording of the statute
shews that it is the bodies that are to be e.xanuned to lind the
cause of death. A coroner's intpiiry would be useless if tlu;
coroner previously had, by evidence, to satisfy himself of

THE QUEEN v. STEPHENSON.

590

the cause of death. In the present case it a]>pears that there
was at the least a reasonable suspicion, and, indeed, probably
more than a reasonable suspicion. The police informed the
coroner ; the information came from parties whose business it
was to look into these matters ; probably the coroner honestly
lielieved the information thus given to him. It is clear to my
mind that in holding an inquest the coroner would onl}' in
such a case bo doing his duty, and in this duty the defendants
obstruct him by surreptitiously taking away the body and
burning it. Their object was to prevent the inquest. The case
in 7 Mod. Hep. (case 15) seems to me in point. In the partic-
ular case tlic death was violent. That either means appeared to
have been a violent one, or it means was discovered to have
been a violent one when the inquest Avas held; but Lord Holt
seems to indicate that the offense was the burying the child
before the inquest so as to obstruct the inquest. If it is a crime
to bury, a fortiori it is one to burn a body ; because if you
bury, exluunation is possible; but if you burn, the body is de-
stroyed and examination is no longer possible. However, here
it is enough to say the coroner had a right to hold the inquest,
and the ])ris()ners were wrong in secretly and intentionally
burning tlic body to obstruct him in his duty of holding such
inquest.

Stkimiicn-, J. I am of the same opinion. It is a misdemeanor
to destroy a body upon wliich an inquisition is about to bo
properly lield, with intent to ju'cvent the holding of that in-
quest. This appears from many authorities and from the case
in 7 Mod. Kep. (case 15). Is it true that it is a misdemeanor
to interfere in a case where the coroner is of opinion that an
inquest must be held, or is it necessary that the facts should
be such that the inquest ought to be held? This matter is not
absolutely covered by authority. In one sense we do create
new ()(T(Mises, that is to say, that, as a court, we can and do de-
fine the law from time to time and apply it to the varying
circumstances wliich arise. In Iic(j. v. Price, 12 Q. B. D., 247,
248, I said, " It is a misdemeanor to prevent the holding of an
inquest which ought to be held, by disposing of the body. It
is essential to this offense that the inquest which it is proposed
to lu)!(! is one which ought to be held. The coroner has not

600

AMERICAN CRimNAL REPORTS.

absolute riglit to hold inquests in every case in which he
chooses to do so. It would be intolerable if he had power to
intrude without adequate cause upon the privacy of a family
in distress, and to interfere with their arrangements for a
funeral. Nothing can justify such interference except a rear
sonable suspicion that tliere may have been something peculiar
in the death, that it may have been due to other causes than
common illness. In such cases the coroner not only may, but
ought to, hold an inquest ; and to j)revent him from doing so by
disposing of the body in anyway — for an inquest must be
held on the view of the body — is a misdemeanor." I say the
same thing now, and I concur in my brotlier Grove's view; in-
deed, any other view would, in my opinion, bo absurd. If a
person destroys a dead body, or removes it to prevent an in-
quest being held, lie is guilty of an offense if tlio in{|uest in-
tended to be held was one that mi<2,ht lawfullv be hold. As
has been said in the course of the argument, a nuin who ob-
structs an inquest in this way takes his clianco of the incjuest
being one that it was right to hold. It is an obstruction
of an officer of justice ; it prevents the doing of that which
the statute authorizes him to do.

Williams, J. I concur upon the case as reserved. Other
collateral questions have been mo< ted and discussed, but what
is reserved is, lirst, whether a bona jiih belief in the coroner in
information which has been given to him, and winch informa-
tion, if true, could justify an in((uest, is suilicicnt. It is (piite
clear to me tluit a honujide l)elief in information from reliable
sources, which, if true, renders it a coroner's duty to hold an
inquest, suiiices to give the coroner jurisdiction. Tlie next
(juestion reserved is, wliethor obstruction of the coroner in
this duty of liis is, under such circumstances, a misdemeanor;
and to that I answer, it most clearly is. With regard to the
other questions, wliich, as I say, do not actually arise for
decision, I do not propose to discuss them.

Mathew, J. I am of the same oi)inion. It is clear, I think,
that the coroner must act upon information of other i)ersons,
and must hold his inquest, if he believes honestly, and has
reasonable grounds for believing, that tluit information is such

THE QUEEN v. DE BANKS.

601

as to call for an inquest. It will never do to allow other per-
sons to decide for themselves whether they will permit an
inquest to be held or not.

IIawkixs, J. At the trial I had not any serious doubt upon
the matter, but the general importance of the question, as well
as its. importance to tlie persons charged, induced me to reserve
the case. If a coroner has information Vv'hich, if true, makes
it his dut\- to hold an inquest, and he bona fide beUeves that
infornuition, he must, 1 think, hold such inquest. Jurisdiction
does not depend on actual facts. Jurisdiction to inquire can-
not depend upon the actual result of the inquiry. Destroying'
tlie body was to make it impossible to hold the inquest — in-
(juests being- lield upon the body. 1 am clearly of opinion
that the ilercudants committed tlie olfense charged in making
it, as tliey did, inq)ossible to hold the inquest, and that the
conviction must certainly be aiiirmed.

Conviction ajjirined.

TuE Ql'ken V. De Banks.

(13 L:i\v Rep., Q. B. Div., 20.)

Lakceny by bailee.

A prisonor was oonviftod of huci'iiy under the following circumstances:
Tlie i)rosefUt()r )j,uve a mare of his into tlio care of tlie prisoner, telling
hiui that it waa to Ijj nold ou tliu next WedneaJay. On the next
Wednesday the proseeutor did not go himself to sell his mare, but sent
liis wife, wlio went to wiiere the prisoner was and saw liim riding the
mare about a horse fair, and sell lier to a third party, and receive on
sucli sale some money. The prosecutor's wife, after such sale, asked
the prisoner to give her the money, saying she would pay his expenses.
This the i)risoner declined to do, and eventually ho absconded with the
money and without accounting. IhhJ, by the court (Lord Coleridge,
C. J., tlrove. Field, and Smith, JJ., Stephen, J., dissenting), that there
was evidence tlu.t the prisoner Avas a bailee of the money thus paid
to him, and that the conviction could be 8Ui>ported.

The following case was stated by the deputy chairman of
the quarter sessions for the county of Salop :

602

AMERICAN CRIMINAL REPORTS.

" The evidenc3, so far as it is material to the point reserved,
was as follows:

*' Joseph Suker, the prosecutor, proved : ' On Friday, tlie 11th
of January, I drove a cliestnut mare into Chester with pris-
oner. I left her at Mr. ^\'^ild's, a butcher. I engaged the i)ris-
oner to look after her. I said to him, '^Do the niaro avcU, and
I will be here on Wednesday morning and will pay yon for
your work." He was to have charge of her till I came. I
told liim to pay for the keep till I came. I meant him to look
after her altogether. I should not have objected to his doing
anything else. On Saturday, tlie liitli of January, I saw pris-
oner. I asked him how the inare looked, and he said she was
as lame as a cat; he said he had removed her to his fat hers
house. I said I should l)e at Chester by the lirst train. I told
him the mare sliould be sold on the AVednesday morning when
I went, as she would not do for me. I sent my wife on that
morning. I have never received a farthing from prisoner on
account of the mare.'

" Annie Sukor, wife of prosecutor, proved: ' I went on "Wed-
nesday, the 1 nth of January. I saw prisoner in th(^ street. I
asked hi ni if he had sold the mare; he said he had not. I
went with him to Wild's sta I )les. Saw mare taken out of the
stables into the street. Prisoner Avas riding the mare about
the fair, ^h: Foster bought her. Prisoner, ]\[r. Foster and
Arthan went to the Queen's Head together. I was outside the
door and watched. I saw Foster give prisoner some money.
Prisoner came out and shewed me a check. He did not give
it me. lie said lie would go to the bank and get it cashed. I
asked him for it several times, but he Avould not part. He told
me he had sold the mare for I'JA He came out of the bank
and said they would not cash him the check. I asked him to
give it to me and said I would pay his expenses, lie would
not do so. I said he must come with me to Whitchurch, and
I must have either the money or the mare. I had great difli-
culty in getting him to the station. At AVhitchureh, when we
got to the gas works, he bolted down a little alley which leads
to the canal. I ran after him and called, but ho did not
answer. I have never received any money for the mare.'

" Joseph Arthan proved side of chestnut marc by prisoner
to Foster, and payment of 15^. to prisoner.

THE QUEEN v. DE BANKS,

603

" Robert Thomas, sergeant of police, proved that prisoner
absconded from Whitchurch on the 18th of January; prisoner
was arrested at Cliester on the 31st of January.

" I held there was no evidence to go to the jury of tlie de-
fendant's employment as a servant so as to make hin\ guilty of
embezzlement. It was then contended on beluilf of the de-
fendant that there was no evidence of the larceny of 15^, I
left the case to the jury, who found ' that the prisoner had
authority to sell the marc and converted the money to his own
use,' and a vordict of ' guilty of larceny ' was recorded,

"The question reserved for the opinion of the court is
whether there was any evidence of larceny which could prop-
erly be left to tlio jury."

No counsel appeared, ,

Lord Colkuidok, C. J, This case raises some nice questions
of law, I could wish that we had had the advantage of the
ar<rumcnt of counsel. The conclusion at which I have arrived
is, that the conviction may be allowed to stand. The question
which we have to consider is not whether the prisoner was a
servant, and embezzled, but whetlier there was evidence to jus-
tify a conviction for larceny. Probably the prisoner was
intrusted with the horse for sale ; the jury have so found, and
the evidence of the prosecutor would seem to shew tliat that
linding was correct. He was tlien to sell the mare, and to
receive the money derived from such sale, and then to hand it
over to the prosecutor or to his agent, who in this case was his
wife. It seems to me that as soon as the prisoner had sold the
mare the wife was entitled to the money, and being asked by
the wife for the money, ho became bailee of the money, and
was guilty of larceny of that money of which he was bailee.

GuovE, J. I must say I have some doubt upon this matter,
but upon the whole I tliiuk there was evidence tliat the pris-
oner took the prosecutor's money and carried it away, being a
bailee of it.

Field, J, I am of the same opinion, I had considerable
doubt about the point, and my doubt was whether the prisoner
was in truth a bailee. Now it was the fair, horses were being

604

AMERICAN CRIMINAL REPORTS,

:-;i i:.

sold for cash at that fair, and the prisoner, in Avhoso charge
the mare had been put by the prosecutor, sold her, and accord-
ing to the evidence received some money for her, which was,
as a witness proved, 15/. Xow was he a bailee ? In the pres-
ent case, there was no usual course of dealing between the pur-
ties by virtue of which the prisoner had a right to mix the
money he received with his own moneys, so tluit no specific
money was his employer's. On the contrary', in the present
case, the ))risonor ought to have handed over the money that
he had received at once, as I read it, to the prosecutor, or to
his wife. The conviction, therefore, can be supported.

Stkimikx, J. I am sorry to be compelled to differ from ray
lord and the m:ijority of the court; the diffcM'ence, however, is
upon the view v.e take of the facts, ^ty view is that the num
Avho has been convicted was not the bailee of the money. I
think he received the money with no obligation to return the
identical coins, and that the jiresont case is governed by lie;/.
r. Ilcmall, L. & C\, 58; 30 L. J. (M. C), 175. Cock burn, C. J.,
in that case states that which it is not disputed is the law, that
"the word bailment" must be understood as meaning, in tiu;
larceny act, "a de})osit of something to be returned in specie."
Was this man bound to return the precise coins he received ?
As I read the evidence such supi)osition is expressly negatived.
I must say I do not understand why the chairman directed tlu'
jury that tiiere was no evidence that the man was servant to the
prosecutor; but, however that may be, that is not the cpiestion
for us, though it certainly seems to me that the man was author-
ized to sell the mare in the ordinarv wav; that his action wa:;
not interfered with by the wife, who never objected to a check
being, as she 3ui)|K>sed, cashed, thus shewing that he was not
supposed to be obliged to hand over the ])articular check cm-
particular coins he might have received, the parties consider-
ing that what was rocpiired was that the amount received
should be paid, not the specific coins.

SMirrr, J. I agree with tlie majority in this matter. The
difflculty is on a question of fact, viz., whether the prisoner
was a bailee of the money or not. I think tluM-e was some
evidence t^iat ho was bound to hand over the particular money ;

THE QUEEN v. BRITTLETON.

605

the wife asks for tlic money ; the prisoner in no way objects to

pay the money, thoug-li ho will not and does not do it, and the

jnry may have found all those statements of the prisoner about

the check to bo entii-ely untrue.

Co>ivictio7i afj'irmed.

* C. D.

TiiK Qi:k!:x v. Bimttlktox et al.

(12 Law Rep., Q. B. Div., 2G0.)

Larceny by wife of husband's property: Evidence — Married icoman's

act.

Upon the trial of a married woman jointly with another person for larceny
of the property of her husband, the husband was called as a witness
against his wife. Held, by the court (Lord Coleridge, C. J., Hawkins,
Lopes and Mathew, JJ. ; Stephen, J., doubting), tliat the evidence of
the husband was improperly received, and that the conviction which
had taken place founded upon it was bad as against both tlio prisoners.

The following case was stated by the chairman of the quar-
ter sessions of the county of Lancaster, holden at Liverpool:

"These prisoners were tried before me and other justices
at the quarter sef:sions for the county of Lancaster, held by
adjournment at Liverpool on the IHth of Juiuuirv, 1S8L

" The prisoners Averc tried under one indictment, charging
them with stealing certain wearing apparel, household goods,
aiul money, the property of Thomas James Ih'ittletou.

" The indictment also contained a count for receiving.

" Thomas Janu?s Lrittleton was called and sworn as a wit-
ness for the prosecution, and stated in evidence tliat the pris-
oner, Maria Jane Brittleton, was married to him on the 3d of
July, ISSO. It was then objected by counsel, who at my re-
quest appeared for prisoner, that Thomas James Brittleton was
an incompetent witness against the prisoner, INIaria J ane Brittle-
ton, on the ground that sec. 10 of the Married Women's Prop-
erty Act, 1SS2 (45 and 40, A^ict., c. 75), did not directly render
the evidence of a husl)and admissible against his wife in the
cases in which she was subjected to criminal proceeding by the
same section, and that the words ' in like manner ' did not

coc

Al^IERICAN CRIMINAL REPORTS.

i '4

y ";■

operate to make the husband a competent witness a^inst his
wife.

" "Without expressing any opinion as to the validity of the
objection, I decided to admit the evidence in order that the
point miglit be reserved for the consideration of the court of
criminal appeal.

" The evidence of Thomas James Brittleton was then ad-
mitted, and the case proved ^^'as in substance that the prisoner
]\[aria Jane Urittleton and the prisoner George Bate together
left the house of the witness Thomas James Brittleton, on the
29th of December, 1882, taking with them the j^roperty and
money mentioned in the indictment.

" I left the case to the jury, directing them that if they Avero
satisfied that the prisoners feloniously took and carried away
the property mentioned in the indictment, they were both
guilty of larceny. The jury convicted both prisoners of lar-
cen}', and the court sentenced each of (hem to nine months'
imprisonment with hard labor.

" The questions for the consideration of the court are :

" 1. "Was the evidence of Thomas James Brittleton admis-
sible against his wife, the prisoner Maria Jane Brittleton?

"2. If the evidence of Thomas James Brittleton was im-
pi-operly admitted aga'nst his wife, can -the conviction of the
prisoner George Bate be supported — the two prisoners being
jointly indicted ?

" If the lirst question be answered in the negative, the con-
viction of the prisoner Maria Jane Brittleton is to Ix; quashed.

" If the second question be also answered in the negative,
the conviction of the prisoner George Bate is also to be
quashed."

Loud CoLKurooE, C. J. I should have been glad in this case
to have had the assistance of the argument of counsel, since the
question raised is one of general importance and depends upon
the meaning to be given to a statute which is not absolutely
clear. It is a question arising upon the Married "Women's
Property Act, 1882, sees. 12 and 1(5.

The twelfth section enacts that every woman, whether mar-
ried beToye or after the act, shall have in her own name against
all persons whomsoever, including her husband, the same civil

THE QUEEN v. BRITTLETON.

COT

rcincdies, and also (subject as regards her husband to the
proviso hereinafter contained) the same remedies and redress
by way of criminal proceedings, for the protection and security
of her own separate property, as if such property belonged to
her as a feme sole. And then it proceeds, that in any indict-
ment under the section, it shall be sufficient to alleire such
property to be her property, and that in any proceeding under
the section a husband or wife shall either of them be compe-
tent to give evidence against the other. It is difficult to say
that this section refers to a case in which the husband is in-
dicted ; the section has for its primary object the protection
and security of the sepai'ate property of the married woman ;
but I suppose the section must mean that where there is an
indictment with regard to the wife's separate property, cither
may be competent to give evidence, so. that it seems as though
a wife could give evidence against her husband.

The sixteenth section of the same act* provides that a wife
doing any act with respect to any property of her husband,
which, if done by the husband with respect to property of the
wife, would nuike the husband liable to criminal proceedings
by the wife under the act, shall, in like manner, be liable to
crimluable proceedings by her husband. Xow, docs that make
a husljand a competent witness in an indictment against his
wife where the wife is charged with stealing the husband's
property ? It does not do so expressly ; it does not in fact so
enact ; but only says that the wife stealing her husbaiul's prop-
erty shall be liable to criminal proceedings just as the husband
when he steals the wife's. I cannot say the matter is free
from doubt, but it is always best to adhere to the rule by
which we construe the words of acts of parliament to mean
that which, in their natural sense, they would be construed to
mean, and not to import meanings of their own, or words of
our own, into acts of parliament.

The legislature has not said that the husband may give evi-
dence against the wife in cases of this descrii)tion, and the
law apart from this act is that ho cannot. If parliament had
altered the law they should and they would have said so ; but
they have not said so. I ani therefore of opinion that the evi-
dence is not receivable and that the conviction must be quashed
against both prisoners.

008

AMERICAN CRIMINAL REPORTS.

Hawkins, J. I am of the same opinion, and only wisli to
add one tiling, viz.: I think that if the legislature had intended
the husband to become an admissible witness against his Avife,
the legislature would have expressed itself in clear and intel-
ligible terms, and I do not find any expression in clear and in-
telligible terms of any such intention. There are no words
making the husband an admissible witness, in my opinion.
There is a second question here — whether the indictment, being
also against another pei-son, the fact of the woman's husband
giving evidence will vitiate the conviction as against such other
person. The case of Hex v. Smith, 1 Moody, C. C, 289, ap-
pears directly in point in this matter, and there is another case
which I think also in point, 7iV/. v. Thxympmn, Law Eep., 1 C.
C. E., 377, and these cases appear to me to shoAV conclusively
that the conviction cannot stand.

LoPKS, J. I also think that if the legislature had intended
to make so great an alteration in the law the legislature would
have expressed itself in unequivocal terms, and that it certainly
has not done.

Stkphk.v, J. I cannot take quite tlie same view as has been
taken by my lord and my brothers, llawkins and Lopes, but
at the same time I cannot feel so decided an o[»iiii<m upon the
matter as to induce me to dissent or to desire an argument be-
fore the whole bench of judges, and therefore I give up the
opinion to which I am rather inclined. Had I been alone to
decide this nuitter I should have been disposed to interpret the
section thus: The husband and wife shall be competent to give
evidence against each other subject to the general rules of evi-
dence, as, for example, that the party indicted cannot give
evidence at all. The wife, if her husband is indicted, is not
denied the benefit of the section against her husband if he
steals her goods, and it seems somewhat odd that under pre-
cisely similar circumstances the husband should not be able to
give evidence against his wife should she steal his goods. Then
I come to section 10, and that says that a wife shall be liable to
be prosecuted if she does anything to her husband's property
which would render her husband liable to a prosecution if done
by him with regard to her property. This I should have been

THE QUEEN v. IIOLLIS.

009

dis])()stHl to siiy nioant subslantially that if a wife is to bo
prost'cutod l»y \wr Jiusbaiul, slio is to bo treated in a similar
■way to a liiishand i>i'oseciited by a wife for any lliinji,' done with
i-esiK'ct lo lier sepai-ate property. I admit that siieli a view
goes somewhat l)eyond tlie exact words, and I do not insist
ni)on my (*\vii view, and especially as in this jiarticular case
the husband and wife were livin<^' together when or immedi-
ately before the olfense was committed.

Math i;\v, .1 . This conviction must, in my opinion, be quashed ;
the act is an aci lor the protection of tlie wife ancl of her
projierty, and tlie present case is not, in my judgment, within
the act.

Conviction quashed.

The Qukkn v. IfoLLis.

(12 Q. B. Div., 25.)
Larceny: rntpcrti/ itvucurLd from unuUter hy a series of tricks.

The two iirisoncrs by a scries of tricks fraudulently induced a bar-maid to
pay over money of lier master to tliem, without liaving received from
them in return the proper change. Tlie bar-maid liad no authority to jiay
over money witliout receiving the pi-oper diange, and had no intention
of or knowledge that slie was so doing. Ilvhl, b}' the court (Lord Cole-
ridge, C. J., Denman, Hawkins, Williams and Matliow, JJ.), that the
inisoners were properly convicted of larceny.

This was a case stated by the chairman of the Worcester-
shire (piarter sessions.

" At the last cpuirter sessions, Tliomas ITollis was tried on a
charge of larceny of money, the property of Charles Parkes.
lie was indicted jointly with AVilliam Wicks, who pleaded
guilty.

" The: money, the subject of the indictment, Avas obtained
by the trick commonly known as 'i-inging the changes.' The
prisoners, IFollis and Wicks, went to an inn kept by'the prose-
cutor; Wicks asked the l)ai'-maid for six-penny Avorth of
whisky — he put down a half sovereign; the bar-maid gave
Vol. IV— 39

610

AMERICAN CRIMINAL REPORTS.

him 9.<f. Or/, change. Wicks then said, vDid I frivo you a half
sovoi'e.'i;n ? I wish you would give it me hack; I think 1 have
change.' The bar-maid gave him the half sovori'igii, but he
did not return the 9*. Cu7. At that moment the other prisoner.
I loll is, asked for a cigar, which the l)ar-maid gave him. Il(^
handed her a shilling in payment, and she retuDied him the
change. "Wicks then gave the bar-maid l(>.y. in silver (J).v. M.
of which was the change she had previously given him) and a
half sovereign, and asked her to give him a sovereign for it.
She took the money to her mast(>r and rec(Mved from him a
sovereign, which she gave to Wicks. Wicks then asked her to
fasten his glove, u])on which TloUis remarked, ' Isn't he fussy.'
The two prisoners then left, ami in a few minutes afterwards
the bar-mai<l discovered the fraud. The bar-maid stated in her
evidence that she did not intend to part with Iw.v master's
money excej)t for full change of the prisoner's money, and her
master also stated in his evidence that she had no authority to
part with it except for full consideration.

" It was contended by couns(;l for the ])risoner that the bar-
maid had general authority to act for her masfer in such a
matter as giving change, and that the transaction was com-
plete before she discovered the fraud; therefore that the proj)-
erty in the money had passed, and that the priscmer could not
be convicted of stealing it.

"After referring to /Ay. /•. MiK<ih\ Law Kep„ 1 C. (\ 17. ,
12.'); ;J7 L. .1. (M. C), 1)7, and /Ay. r. Mldillrfon, I v ' p., l>
C. 0. II.. ns; 42 L. J. (M. V..), 7:5, 1 overruled .,.rtion.

and the jury fcjund the prisoner guilty; and in iv to ques-
tions put by me, also found specially that the bar-iniid lijnl no
intention to part with the pi'o])erty in the sovereign exc(\ I for
full change of the ])risoner's money, and that her master had
given her no authority to part with it for other than full con-
sideration." The (piestion reserved for the consicUu'ation of
the court was, whether the prisoner was properly convicted of
larceny.

A. F. Go(Is(m, for the prosecution, submitted tliat liq/. v.
Middldon. Law Rep., 2 C. (\ !{., ;58; -t2 L. J. (M. C), 73, was
decisive of the present case, and that the finding of the jury,
that the bar-maid had no right to part Avitli the property,

FE0M8 r. O'BRIEN.

(!11

I a half
k 1 liiivc
1, but lie
|)ris()n(M'.
im. Il(^
him the
I- (t).v. Cul
n) ami si
;n for it.
Ill him ii
'd her to
10 fussy.'
terwai'ds
0(1 in her
master's
, ami her
hority to

; the bar-
u such a
was com-
the proj)-
ciouhl not

c.(" i;.

'V ' p., 2
jection.
y to qncs-
1(1 1i;m1 no
;x(;c I for
aster had
I full con-
U'ation of
nvicted of

it licfj. r.
'.), n, was

the jury.

property,

coui)lc'd with the fact that she never intended to do so, pre-
vented any dilliculty as to the conviction.
No ccumsel appeared for the prisoner.

Loiii) (Joi.KiMiuiK, \j. (J. .1. I cannot see if a person goes into
a place and fraudulcMitly, by a series of tricks, obtains posses-
sion of propci'ty from another which that other lias no inten-
tion of parting with, how the offenses can fail to bo larceny.
It is clearly stealing, and the conviction must boaifirmod.

1)k.nma_n, Hawkins, Williams and Matiiew, J J., concurred.

Conviction affirmed.

FkOMS KT at.., AlM'KLT.ANTS, V. O'BlJIKX.
(tl Law Rep., Q. B. Div. 21.)

Lauceny : Water stored in pipes.

Water siipi)lie<l by a water coinpiiny to a consunier, ami standing in his
pijKJS, may be tlie sub jet.t of a larceny at common law.

(Jaso stated by justices under 20 and 21 Vict., cli. 4, and 42
and 43 Vict., ch. 4'.>. At the hearing of an information before
two justices of the county of Durham, charging the respond-
ent with having feloniously stolen, taken and carried away
two buckets of water, the property of the aj)pollants, and of
the value of \(1., it was proved that the a])pellants wore the
ownei's of a colliery in the county of Durham, which was
luipjilied with water by the Wcardale & Shildon AVater Com-
pany, Limited; that the colliery being out of the district in
which the water comi)any were authorized to supjily water by
their act of parliament, a motor was placed upon the water
(•om])any's ground, and the water was brought from the meter
to the colliery by moans of underground pipes laid down by
the api)ellants ; that the water was then supplied to houses
occupied by the appellants' workmen by means of branch
l)il)es, to which taps were attached, the workmen being allowed
to take watei- from the taps on payment of a fixed price, and
that the resijondent was seen to take the water in question

C12

A]MERICAN CRIMINAL REPORTS.

from one of the taps without having agreed to pay for the
same.

The respondent having pleaded " not guilty," and desired to
i)i' dealt with summaril}'^, the justices declined to convict her of
the otrense charged.

The (piestion of law for the opinion of the court Avas whether
or not water could be the subject of larceny at common law.

E. Il'idU'ij, for tlie .appellants, was not required to argue.

Gi'(iii<i>i\ for the justices, contended that water could not l>o
the subject of hirceny at comnum law, and that this contention
was su[)ported by the fact that the legislature had thought it
necessary to impose statutory penalties for the taking of water
from ])i|)es bohtnging to water eom})anies by lo ami 11 Yict.,
ch. IT, sec. 5t>, anu'uded by 2(3 and 27 Vict., ch. "j;>, sec. IG.

The court (Fiki.d and Matukw, JJ.) were of opinion that

water, under the circumstances and in the condition described

in the case, could be the subject of a larceny at comnu)n law,

and they directed the case to be remitted to the justices with

a statement of this o[»inion.

Case reiiiitted.

IJiDEX.

ABDUCTION. ,

1. Persox abducted cojtPETENT WITNESS FOR STATE.— On trial of ati in-

(lictiiu'iit i'dv unliiwi'ully conveying or takiii;^ away a woman child
UHilcrtlu' a,i;(> ol' lil'ti'cn years, with intent towiluic, i»tc.,nn(ler section
H'J of tlic crinu's act (New Jersey), she is a competent witness to tes-
tily on heliail' of the slate. Sliitcv. Gordon, 1

2. Same — .TrmwDicriON of offense. — If the defemlant bronsht her within

this stiile troni another, and herewith the intent set ont in the statute,
iMterjKised his will or ])ersuasion between lier and her Rnardian's con-
trol, so as to overcome her intention to return to her home, the
abduction is accomplished, and lie may be indicted in this state. Id.

ABORTION.

NoxTors NATt'RE OF Dr.rfis. — The Uiins administered or prescribed to
i)ro(ure llie miscarriage of a woman tlien ])re;;iiant with child must
be noxious in its natun>: but it is not necessary to prove that it will
]n-oduce that elTect. State r. Gcdickc,

DEsciMiUNd THE OFFENSE. — An indictment wliich alleges that the de-
fenihiiit unlawfully useil an instrument with intent tojirocurea niiscar-
riaije of a woman named, and which di^st'rilies the instrument and the
nianai'r in which the
Vorkiii,

Evidence as to riuou acts.— Acts of the defendant at other times may
be shown as tending to jaove the intent of defemlant. and if competent
to prove the crime charged, it is no objection that it also tended to

t hel' *'i'iiin's -* ^'*

defendant used it, is snlUcient.

Com. V.
15

prov(
Declarations t<

crnnes.
pliysicians touching pregnancy, see Evidence, 8 and 9.

ADMISSIONS AND CONFESSIONS.

1. Al>MlS:^toNS.— It is not erroneous to instruct tlie jury that " admissions

' made in ordinary or random conversations are not generally considered

in law as satisfaltory proof."' State of Iowa v. Iioiioraii, 25

CoM-Ks^inN JtADE fNDER pifOMiSE.— Tlic shcrillf and state's attorney
tallied with the respondent while in jail. Tliesheritf first testified that
no induciMncnls to confess were held out. but afterwards said "that he
iire-mned he and the state's attornev both told the res|ioiident Jt would
be hetter for her to t"ll the whole story, and the punishment ^^'mld be
lihely to be lighter." Ildd, that his tcBtiuiony was not adunssible.
Stair i'. Daij, !"•*

8 SvMl' — When there is no conllicting testimony as to what the induce-
mi'iit was, the decision of the court below may be reversed by the sti-
liiH'ine court. ^

4 CoNI'i-'-SlON OP ACCUSED. WHEN ADMISSIBLE AGAINST HIM.— The aduiis-

si'bihlv of a confession of guilt is addressed, in the first instance, to tho
discretion of the court. It umst bo subjected to careful scrutiny, and

t)14

AMERICAN CRIMINAL REPORTS.

reooivorl Avith preat caution. When freely and voluntarily mado, it ia
evi(l«>nco of tlio most satisfactory chaiactcr, but tlic ])rcsuni].tion upon
wliich wci,<;lit is given to such evidence, namely, that one wlio is iinio-
ccnt will not imperil his safety or j)re,judico his interests by an unlrue
statement, ceases when the confession apjiears to hav*> been made eitlier
in cDnseciuence of inducements held out by one in authority tonciiing
the cliaiKO ]>referred, or because of a threat or jironiise by or in the
juesenc*.' of such jjcrson, with reference thereto. Ihqtt w Utah, 417

Rules regulatinj^ the adinissil)ility in evidence of the declarations of an
injin-ed jtarty respectinj; his injuries. Doirlcn r. The Slate, 49

ADULTERATION.
See Habeas Corpus, ;}. C'onstitltion'at, Law, 10, 11, 13, 13.

ADULTERY.

Adultery effkctf.d by force. — To constitute tli(> crime of adultery as
against the num. the conscMit of tiie woman to tlie carnal intercourse is
not indis|jensuble. but the odeiise may I'xist as against him. though the
connection was elFected by force and against her will. State v. Donn-
faii, 25

2. Institution of prosecution for, by husband or wife.— Under a statute
which provides tiiat no pros<'culion can lie connnenced but on tlu' com-
plaint of the husl)aiid or wife, appearing i)efore tlie grand jury as a wit-
ness in olx'dience to a subjxena, is not a sutlicieiit c<)mpliance with tlie
reiiuin^meiits of tlie statuti' to autiiorize a conviction of tiie (U^feiidant;
biu it is not incumlpcnt on the state to establisii the fact of the insti-
tution of the j)ro;iecntion by tlie husband or wife beyond a reasonable
doubt. /(/.

Otiii:r acts of Aini.TERY. — Tlu> rule of law is that where the charge is
of one act of adultery only, in a single count, to wjiii-h evidence has
been given, the jirosecution is not permitted alterwards to introduce
evidence of other acts committed at different times and places. /(?_

4. Coiiabit.vtion. — Sexual intercourse betw(>en persons not married, though
living in tlie same house, is not siilllcient, alone, to con.stitiitc the od'ense
of cohabiting together as husliand and wife without being maiTied.
Taylor v. The State, 'M

ALIBI.

Burden of proof not oiianoed.— The burden of proof is not changed in a
criminal case, when the defendant undertala-s to prove an atihf, and
if, by rea.sou of the evidence in relation to such alibi, tlie jury shoul(i
doubt the defendant's guilt, he is entitled to an acipiittal, altbougli the
jurv may not be al)le to sav that th»' alibi is fully prov<;d. ]\'aiter.'< v.
The State, ' 83

APPEAL AND WRIT OF ERROR.

When an api)eal or writ of error will lie in behalf of state. Taylor v.
The State, ;J0

If there be no specilic jirovision in the charter of a city (in this ciuse
the city of Leavenworth) concerning appeals, where the line is !>2(>or
leas, sui'h right may be toiiiid under tiu; laws regulating the proceiMl-
ings in justices' courts in criminal cases, and in that event the peti-
tioner would be entitled to his ai>|H<al ujion tiling a proper boiul. //(
re Jiolf.% 440

Same. — The appeal l«Miig formally denied by the police judge, the fail-
ure f< furnisn the bond should not prejudice the petitioner, if he supply
the omission promptly. id.

Appellate coui't will dismiss appeal of escaped convict, see Practice, 7, 8.

Writ of error, certiflcate of division, etc., in United States courts, see
Practice, 9, 10.

INDEX.

G15

ARREST.

1. KirxTNO OF opncEB — Wantof kxowlkdoe op his official character

reduck; ('i;i.me to MANSLAuaiiTER. — A peace ofKc-er has the riglit to
an-est oiu; who is comiuitthig a breivch of tlia jjeaee in his presence, and
to UHt,' Hiich lorct; as»is iiecessavy to make it; ami if tlio person so dis-
turbing; the iwaco knows that the person attempting tlie arrest is an
orticer, and kills liini, it is murder; if he does not know the fact, it is
maaslaugliter. Fleetwood v. Com., !50

2. Arrest by private person.— Whore a felony has been committed,

and there is good cause to believi; that a certain party committetl the
same, a private person may arrest such party until a waiTant can hv
procured. Siinmerman v. flic State, 91

Arrest of defendant's witness in presence of jury, see Witness, 5,

ARSON.

To BURN one's own HOUSE WHEN RIGHTFUIXY IN POSSESSION, NOT ARSON.

Our statute has not changed the delinition of the crime of arson as given
by the comuion law — the wilful and malii'ious bvtrning of the dwelling-
house of another; Ikmicc. when one burns the dwelling-house that he is
lawfully occupying, in legal sense, it is not arson; for arson is a crime
against tlie security of the dwelling-house as such, and not as property.
State V. Haniiett, 38

JIOTIVK JIAV 15E SHOWN. — To prove that the respondent had a motive for
burning tiie Imilding evitlence was admissible to sliow his ill-feeling
and its intensity towards his wife, who had an interest in it; but not the
cause, merits ah(l conseipiences of the (iiuu-rel; hence, it was error to
admit proof tl at llu! wife had procunnl a divorce for intolerable severity;
that the respondent had Ihh'U restrained by injunction froni inflicting
personal almse upon her; and that, subsecpiently, the mamage was
annulled on the ground of bigamy. T<f-

VAHiANcr.—" ADJOINING," " AnJACENT TO," ETC.— Au indictment charg-
ing thai the respondent attempted to set lire to an out-building, adjoin-
ing a (l\velling-h<mse, is not supported by evidence that the bviilding
was near to, but not in c-ontact with, the dwelling-house. State i\
Dou-iit^, ^'^

law and under the statute. The State v. Ful-

Arson at
ford,

common

/VSSAULT.

1. Aggravated assault of teachf.ii upon a pupil— Evidence.— The
iirosecution for aggravated assault was based upon a chastisement
inflicted by an adult school teacher ui)on an infant pupil. The prose-
cution was' jicrmitted. over the objection of the defense, to prove that
tlie i)ui)il, two or three nights after the chastisement, told his father
that he coidd not sleep, because his hi|)s were so sore it pained him to
turn in bed. Held, that this declaration was made too long after the
injury to be admissible in evidence. Dowlen v. The State, 49

'> Same — Rules regulating the admissibility in evidence of the declara-
tions of un injured party re^4)ecting his injuries, stated and discussed.

!1 Same — Sim> the statement of tiie case for special instructions requested
which, embodying corr.-ctly the law applicable to the facta, were irn-
proiwrly refused in the trial of a teacher for chastising lua pupil. Id.

GIG

AMEPJCAN CRIMINAL REPORTS.
ASSAULT WITH INTENT TO MURDER.

ASSATTT TO MrUO::!! A PF.KSOV OTHER THAN' THE ONE INTKXOED, Oil
WITKOI'T INTKXT AS TO ANY rAUTIClTAU OXK — RECKLESSNESS — (JeX-

EUAI. MAi.ici:.— Wlicrc a ixtsoii di'libt'i-iitoly wlioots at A., and in the
direction of 1?., ami tlu' ball misses A. and strilces H., inflictin.LC a wound,
these lacts will siiHicient ly show the intention ol' tlu; person shootin;.;;
to kill and murder [{.. aUliou;;li he has no actual nialiee or ill-leriinj;-
tow.-ird B., and lie may be convicted of an assiuilt upon B. with intent
to kill and murder him. Dinitiniji v. Tlir. People, GO

The INTENT. — Where an act, unlawful in itself, is done with delibera-
tion and with the intention of killinn' or inllictiiijj; s(>ri(ius boilily harm,
though the iiitentioi) be not directed f o any particular jierson. and death
ensue, it will lie murdei' at common law. Thus, if a |)arty lircs a j;'""-
shot into a ci-owd of jiei-sons with intent to miuMler some one, or when
it is done with criminal rei-klessness, the killin;^ will be nnirder, al-
though no intentina exisfeil to kill any partitailar lu'rson. /</.

lyiAT.TCE T>n'I,li'l>. — Where one. without provocation, dis(har.u;eil his ]>is-
tol directly at a i;roup of ptTsons. it matters not what |)erson he in-
tended to I.ill; or ii'. under such circumstanc<'s, he shoots a person
(>thertiian tlie one intended, the act. from its recklessness and want of
provocation, will be referr<' 1 to no other cause than malice. Such rei'k-
less acts imjily j^eneral malice. Jd.

Insanity AS A DKEENsi; — .\s to the ti'.st of lU'sroxsimi.iTY. — Whore
roasf)n and judi;iueMt ar.' not overcome, but the iierson charj;'ed with
crime at the lime retains the power to choose between rij^iu aibl wronj.;'

as t<* the pai'ticiilar a' t doiie. he (•.■mnot escajie responsll
acts under the plea of insanity. I>inia r. The People,

lltv for

his

,12

So if, at the time .a dcidly assault is made, the person makin.; the .as-
sault kntwi'-at it was wron.L;- to counnit such an act. and had the
power of mi: .1 to chuo-c either to do or not to do it. and ol controllin;;;
his <()iiducl in accoriiance with such choit'c, ho will Ih; held anienabi(-
to the law, altliou;j;li he w,is not eiilirely and [lerfeclly j;ane. Id.

AUTIIEFOIS ACQUIT— AUTREFOIS (X)XVirT.
What niKNTiTY of the offkxsks chauoei) is neckssaky TO srri^tRT

THE n.EAS Ol' Al TKEl'dlS CONVICT AND OF ACTltEFolS AC(,H IT.— Proof of
a din'cri'nt ( I'ime iVoiii the one cliarj;'ed. thon.Lih generally objiM-tionable.
is aduiissihlc when both oll'elises JU'e closely linked or comieclcd, espe-
cially in tlie rex (/exlir, and also when such pi'oof is pertinent and nec-
essary to show intent. .S7i'/*' i\ I'iiien ft III., j>!)0

P'oU.MEIt ACijl ITTAE- W'METIIEll A IIAU TO A RECONII TOOSECFTIOX —
JriilSDICTloX ESSEXTIAI. — l''oi::«IE|{ AC(jriTTAI, IN ANoTHI'.k colXTV. —

The trial and a'i|uitt:d. in one county, of one ch;ii';j:ed with receiv-
ing' stolen j;o(ids, knowin;;' tiiein to liaxc been stolen, is no ii.n' to an
indiciment for t!ie same olfeMse in a diilVrent county, uidiss it shall
aj)pear tluil the i.U'ense was committe I in the county in which the ac-
uniltal wMs had. so as to .nive the circuit court of that conr.ty Jmisdic-
tion. An acquittal of a crime by a court havinjj; no jurisdii tinn is no
bar to a pro;,. •cut ion for the same oll'ense in a court havinj; Jurisdic-
tion. Ctdiiplii II L'. 'I'lie J'eojile, ;i;jH

The <;'ener,d rule at r-omtnon law is. that an acipiittal in one co'.nity can
only be pie ided in the s!im(^ <'ount,\ , for the reason that all indictments
are local ; and if tbi' lirst is laid in tlH> wroii;;' county, the defendant
cannot i>e found guilty, and could not liavo been in' le;;';il jeopardy.
To this rule there are a tew exceptions, as, in larcony, and in (^aso of a
chaii.ne of venue, as in this stati'. " Jd.

Samu — Former AcyrirrAi.. to he a iiar, mi'st have uekn in kf.-

SI'ECT TO THh; SAME IDENTICAL OFFENSE- .VXI) Till', I'I.EA Ml'ST SO

SHOW. — To maku u plcu of a former ucijuittal or conviction a bur to a

- Wlioro

p'll willi

111 wroiijj;

V for liis

Cy2

INDEX.

017

RproTiil iiiilictmpiit. jironf of tli;^ facts nllosP'I in tho soroivl must l)n
siillii'i(>nt 111 law to have warrautfil a corivictinn upon tlio first iiidift-
nioiit of tlii' sami' olfeuso (•liiir;,^!!! in tlic .•iccorHl one, and not of a dif-
i^civnt o(ri'iis(- and tliP jil.-a must show tliat tlio offense c'iiartjc I in
liolh cases IS the same in law and in fact, and tlie question nmst lie de-
termnied l)y tiie facts appearing from tlie record, witliout tiie aid of
extrmsic circumstances. 7,;_

r>. Same — Op a plea op former acquittal— Its rkqitisitrs.— A plea
of an aiMpMttal of tlie same olfenso in a different countv is defective,
in sul)stance, if it fails to show that tlie court of suclf other county
had in some le.L^al way a<;(£uir(!d jurisdiction of the snhject-matter, and
how such Jurisiliction was acquired, as, liy a chan^^e of venue, or. in
case of lurceay. by the defendant haviui,^ taken the stolen i>roi)ertv
into such comity. j j.

(5. Samk — A I'l.i'.A Mi-ST answer all it rROFi-ssES.— a Kjiecial plea (as
a I'ormer aciinittal) to an indictment coiitaiiiinj; several counts, if it
fails to answer any one count, is had on ileniurrer. Id.

T. Upon the trial of r?. as accessory before the fact to the murder of IT.,
evi<Ience was received as ))art of C'.'s testimony tendiiij;- to ])rove the
alle.ixation of the indictment that G. murdered li., and i'or no other
purpose: JhIi}. that as ils comiietency for that purjiose, and its iiicom-
jietency for any other pnrpo-c. were distinctly declared by the cimrt
when it was nceived, there was no error. State l\ Buzzdl, iW

H. Samk — ^rKR(!KU.— If the defenilant was in fact both a principal ami
an accessory, and if, in l;iw. on the i)lea of former conviction, he could
not be convicted of eitlier crim(> after he had been convicted of the
other, he could, on the jilea of not ,!:;iiilty, be convicted of either where
he had been previously convicted of neither. Jri,

Indecent assault on female child, see K.vi'K, 1.

See BuuiiLAKV, ;J. Jkoparoy. Jurisdictiox.

bastardy.

CrlST OP OI'FKNSr. IS THE REFUSAL OF THE PUTATIVE FATHER TO OIVE ROXD.
The n'ist of the oir"iise of bastardy is the refusal of tlie |)ulative father
to ni\<' bond for the siii)port of the child. A prosecntion for bastardy
is a spi'cies of ]iroti'ctive measure to ]iri'veiit counties beconiiiiL;cliar;;e-
able with ]iaiiper bastards. Therefore, the I'onnty to which the bastard
is likely to become chargeable lias Jurisdiction of a bastardy case, and
not the countv in wliich the child was beyolten or born. ]\'illi<niis r.
The Slate, " 05

bi()a:siv.

1. iNincTMlWT. — An indictment for bij^amy drawn in the lan;;uaj,^e of the

statute is suliicieiit. Slate r. (loKee. (iS

2. Evii>i';\('i;. — On a trial I'or bi-amy. the state, to (irove the first mar-

riaire. ;;ii\e evidence that defenilant and the woman lived toju'ether and
held ihemselves out to the world as man and wife for years: that they
had a family of cliililren li\ iii,^ with them as their children: tliatshe
had si.nned ami acknnwleil.ucl deeds as his wife: and that alter the
l)ij;-;unons niarria.^e she had sued for a divorce, he had answered, and
the conit had H'nnited her a divorce. Ilcltl, that this evidence was all
competent. 1(1.

3. Parol evidence is admissible to show that a paper ofTored as a certilied

copy of a decree is a foi'K'er.v. Id,

BILL OF E.Xf'EPTIONS.

Unless instructions are einliodied in the bill of exceptions, the supremo
court cannot judge of their allegod error. Clmiuey v. The State, 204

618

AMERICAN CRIMINAL REPORTJ.

BRIBERY.

1. Indictment not bad for uncektainty. — An indictment, under section
6000, Revised Statutes, which charges that delendant C()rrui)tly olTeied
and promised to B., amend)er of the liouso of represeutativis of tiio
general assembly ot tlie state, with the intent corruptly and feloniously
to infiuenee his vote u[)on a certain bill then pending in siu:h house,
"a valuattle thing, to wit: stock of the Cinciimati Union Rjiilwivy
Comi)any, of the amount and value of $20,000, and a huge amount of
money, of great vaUu'," is not bad for uncertainty. It ts not necessary,
in addition to such allegation, to recite the facta which give the tidng
offered a value, nor to charge that a delinite sum of money was offereil.
Watson V. State, 71

8. Same — That defendant was a mesiber of the housr.— A single count
in such indictment, which charged that B. was a member of the house,
and also a member of a standing connnittee of such house, to which the
bill was refen'(;d, and that the olfi-r or jiromise was mad(! to iniluenco
his vote tlierefor in the hoiise, and his vote for a favorable rej)ort thereon
in the CDmiuittee, is not bad for dui)licity. The charge thus made con-
stitutes but one offense under the statute. Id.

3. iNSTRt'CTiON AS TO VALUE OF THING OFFERED. — To charge the jurv, in a

trial iqion such indictment, tliat the thing ofTcnnl or ])roinis('(l imist
liavi- a value at the very time it is olFered or promised, and while (Ins
bill is pending, is error, but not to the ]>rejiidice of the defenihint. It is
a crime, under sectii>n (i'.WM). to offeror promise a thing valuable at that
time, or whicii will be valuable when, according to the promise, it is
to be given or delivered, IiL

4. Variance not fatal. — The indictment in this case alleged that the

sum of ^;>(M) was paid to plaintiff in error as a l)ribe l)y one C. B.,
"ami otiiers whose? names are to the gnuid jnrors imkiiown." Tin;
proof showed tiiat the money was |)ai<l by C. B. for the jmrpose alleged
m t\u\ indictment. //(■/(/, that the variance was not fatal, ami that th<!
district court was justified, under the jirovisions of section 4 13 of th<'
Criminal Code, in disregarding it. (iiithriev. The State, 78

5. EviDi"N(;e. — Unili>r tin? allt>g'''tions of the indictment, an<l the circum-

staiire:s of the case as shown by the testimony, it was /((■/(/ com-
petent for the state to prove other acts of bribery than those alleged
HI the indictment, for the purpose of corroborating the principal wit-
ness upon material facts involved in the original contract of bribery,
and also for the purpose of showing the system, phui and design of tlie
parties involved in tue tran.saction alleged in the indictment. /'/.

',«■

BURGLARY.

DwELLiNO-HOfSE occii'iED IN PART RY SERVANT. — WHiero a dwelling-
house was (H'ciipied by one in charge of a plantation, and he ordinarily
nlej)t in (me room of it, the entire house was his dwelling-house,
allliough another r(M)m may have been (K'casionally CMrcupicMl as an
ofiic<! or bedroom by another who while there was the master. AhUIdii
V. The. State, «0

BUROLARY AT COMMON LAW AND VNDER THE STATUTE.— TIu> act of 1870

((icorgi.'i) did not alter the law of burglary otherwi.se than to put biu'g-
lury, whether <(>nunitted in the day or night, on the same plane in
respect to punishment. Id.

Autrefois convict— When no rar. — As burglary and larceny com-
mitted at the same time are separate and distinct offenses, a (conviction
of one is no bar to a i>roso(;ution for the other. The State v. Mar-
tin, m

BUROLARY AND LARCENY — CRIME CONSISTINO OF DEOREES. — Under the

Revised Statutes of Missouri, sec. 1053, which provides " that if ujion

INDEX.

01!)

the trial of any person for any misdemeanor it shall appear that the
facts Riven in cvidcMu^e amount in law to a felony, such person bv reason
tliereol" sliall not be entitled to lie acquitted for such misdemeanor; and
no jierson tried for sucli misdemeanor shall be liable afterward to be
j»rosecuted for felony on the sanu? facts, unless the court shall think fit
m its discretion to discrliarKc the Jury from Kivinji any verdict upon sucli
trial, and to <lirect sucli iierson to bt; indicted for a felony, in whicii ciise
such iK'ison may l)e dealt with in all respects a« if he liad not been put
uiHUi bis trial for such misdemeanor." held, that this section has no
reference to independent offenses, but hai api)licatioii to that class
of <ill'enses of wiiicli there arc (lillVrent de};i-ees or grades, and of
which iL,'ra(!es or dejjrees the misdennNinor cliarged is one — that it
would ajijily to petit and yi-and larceny, but n(jt to burghuy and
larieny. /rf.

i. Indictment, when not bad fou diplicity.— Wliere defendant was
found Kuilty on an indictment chiiigiii}; that he broke and entered a
barn in wliich were certain goods, etc., with the felonious intent to
take, steal and <aiTy away said goods, etc., and did feloniously take,
steal and cany away certain of llie goods, etc., and the court instructed
the Jury tluit " the charge in the indictment that the defendant stole
goods is for the purpo.sc of charging the public oifense he intended
to coMiiiiit, and the larceny, if any, may Im^ shown and considered for
the puriiose of showing the intent of "the (h.-feiidant in Itreaking and
entering said building," a motion in arrest of judgment, because the in-
dictment charged two olfi'hsi's. w;is denied. State i'. Shaffer, 8;{

1. Possession of (ioods reckntia' stou:n not of itself sufficient to
WAUiiANT conviction OF BUUdi.AKV.— The presumption of guilt whicli
arises from the possession of goxis recently stolen is aiiplicable to the
(•rime of larceny, but not the crime of burglary; and while it is compe-
tent evidi'iicc tending to sliow that the defendant committt^d the burg-
lary, it is iu)t, of itself, snffieieiit, even if inie.vjilaiiieil, to warrant a
conviction. /<'.

CERTIORARI.

I,E(JAMTY OF Jl'DOMENT FOR COSTS NOT UEVIKWABT.E. — If the Court en'cd

in allowing any costs that were ii'it taxable against the relator, it was
not an «'.\cess of Jurisdiction. twA its action, in tliis resjiect, cannot be
reviewed upon eertiorari. St'de r. Distriet Court, 236

CHANGE OF VENUE.

1. CHANOF. OF VENUE ON THE OROUND OF PRFJUDK'E ON THE PART OF THE
PEOPLE OF THE COUNTY. — A jictition for a change of venue in a crimi-
nal case was based on the alleged prejudice in the minds of the people
of the county, caused by the ])uhlication in certain newspapers of
prejudicial accounts of the alleged olTense, such newspapers having a
standing and large cinulation in the conntj-. The state's attorney filed
a denial of the statements in the jM'tition, supported by counter affida-
vits, going to show that such prejudice did not exist from the publica-
tion of the articles, among whii-h atHdavits was that of the sheriff, to
the effect that he talked about criminal ciuses with people from all parts
of the county, and bad found there was but comjiaratively little in-
terest taken iii tlie case, antl that from his knowledge of the temper of
the i)eople of the county he had no hesitation in saying that the de-
fenclant could have his' case tried as fairly and impartially in that
coimty a.s in anv one in the .state. It wa.s held on error that the court
was not ja-eparcd to siiy the circuit court, in denying the petition, liad

• decided contrary to the right of the case. Dmm r. The People, 52

•J. Affidavit should be made by one knowing the facts.— An affidavit
for change of venue on the ground of the bias and prejudice of the
people of a county shouM be made by one knowing the facts which he
swears to. One niiwU' bv a non-resident, who shows no means of
knowledge, is not sufticitnt. Simmcniian r. The State, 91

020

AMERICAN CRIMINAL REPORTS.

3. UxABLK TO OBTAIN AFFIDAVITS.— If a party is uiinlilo to olilain .iCili'r.vit.i
from rtsidfiits of .a county lie may state to wlioiu lu' ajjplicil for tlii>
Haiiic. tlic reasons Kivt'ii by each for refusinjir, and tliat In- was unalilo
to iirocnrc afHdavits in sui)i)ort of his motion because of the n'fusai of
tlie I'itizens to f;ive the same. Jd.

CHARACTER AND REPUTATION.

Pi-evious Rood character may be shown. See State of Iowa v. Dono-
van, 'iT\.

COIMMITMENT.

Proc'K'^s of co:\i:mitmf,xt cannot kni,akok nF.roRO. — All ]irocoss after
.judniueiit must iiursffe. butcamiot be used to vary orcontrol, tlie Jiidp;-
nieiit. And a niemoranduni u|)on tlie commitmejit (•;iniint lie i'esnr(e(l
to fiir t'le purpose t)f enlarj^inj;; what the court has solemnly adjudged.
lu ir Jdvksoii, 568

Infamous crime, iis to record of conviction for, 2, 3.

CONCEALED WEAPONS.

Cakryino nsToi.s — Act of Aprii, 1, 1H81, constiti'tionat,. — Sections 1
and 2 of the act of A|)ril 1. 1881 (Arkaiisa.s), |)roliil>ilinj; llie carryinj;
of arniv pistols, exrejit uiict)vered and in the haml, is not unconstitu-
tional. ■ Hull r. Stale, Ol»

Cf^NCEALTNf} DEATH OF CHILD.

CONCKAt.lXf! DEATfl OF CiiiM). — The crime of eiideavcriugiirivatcly to con-
ci'id t!u' death of a liaslard cliiiil. in violation of (ieii. St.. eh. 'J.^iti. sec.
8 (New Hampshire), may be conunitted, altliougli the lads .are from
necessity made known to some one who is re(^uested to iieep them
secret. Stater. Hill (tat., 10'2

CONCEALINCl STOLEN PHOPKKTY.

A partj' knowinp: property to have been stolen has no right to conceal the
same, even with the intention to save iiiiii.-ictl' frnni lo-.s; and a ''huise
in an instruition, on the part of the defendant, announcing a ditferent
rule, will vitiate the entire instruction. VaiiqibL'll v. I'lic J'cople, ^38

CONSPIRACY.

1. Ixdktmf.nt and triaf. of two, both mcst bi', convicted or acqfit-
Ti;i). — Where two persons are indicted for cons) liring together and
they are tried together, both imist be acipiittcd or both convicted.
Till' (fhii'm I'. Maitiiiiiij, ,'58:2

3. CoNSt'IRATOR-S HKT.r) RI'SI'ONPTBI.E ALTHOrOTf TlfEV DID NOT INTEND TO

COMMIT THE PAHTlci'l.AKCKiME. — When part ies are eng.ageil in the com-
mission of a crime with malicious intent, and in Uw execution thereof
per|ietrate another criminal act notorigin;dly intended, the rniintended
act derives its character from the intended crime, and the original
malicious intent alfects both acts. The State v. Vines et al., 20(»

CONSTITUTIONAL LAW.

1. Jury sf.rvice confixed to the county.— There is no authority in the
statutes of Illinois for the selection of grand an<l petit jurors in one
county to sei've m anotlier county. Buckrice v. The People, 100

INDEX.

C21

;5.

As TO i:!<urr or tisiai- by ji-ry, and in ^v^AT county a i-kk'^on
CIIAKOKI) WITH ciUMK Mi'ST MR TUIKD.— Tli(! ri^lit of trial l)v jury.
HiiMraiiticil l)y tlic coiistitutioii to oiic iU'cusi'd of criiiu', iiuhi'ilcs the
rijilit (il ln'in..;- tricl l>y jiirnrs scli-ctcil iroiii the fouutv in which tlio
oiFi'iise iH alli'<;('(l to liiive liecii coiiimitti'd. ' Id.

Section '}. (livisi.)ii 10. of tlic Criminal Code (Illinois), in so far as it au-
thori/(sa iiartyto he tried for ;in oU'eiisc conunitted entirely witliin
one connly. hut oiu; hundred rods from the cuuuty line, hi the ailjoin-
in^;' county, is unconstitutional and void. ' Id.

Tliere is a class of oll'eiises that may he conunitted by a I'arty heinK in
one county, upon a jierson or tliinj;- hein;;' at tlu' sanie time i'li iinother
county, when tlie olfense may not inaptly he deliued as having;- heeti
coinmitlcd in eiiher county ; and offenses c'onunittt'd on the county line,
or so neur tlierclo as that the distance therefrom is ina|ipreciahle. may
with propriety he re.uardeil as havin;^' been conunitted in eitlier county,
and hy doin;.;- so no one is deiirived of any constitutional riylit. Id.

But where the entire olfense is eomnutted within one county, and at an
a|)preciahle diNtiuice from the comity line, as in this case, at a <listance
of seventy rods, the jiarty aci'Usc'd caimot he indicted ami tried in an-

other comitv for that olfense,

Id.

0. A trial hv jiirv in a criminal action cannot he waived by the accused.
.S7<(/c r.' stiinn-t. 111

T. On trial of an indictmetit for an assatdt and battery, a jury trial was
waiveci.and the court, by re(|Uest. foimd the Caclsand declared the law
arising- thereon. IlvId, {hat such a ]irocedure is not wanaiiled by law,
and the case will be remanded for (rial. Id.

8. A statute which jirohibits the sale and the keeping for sale of intoxicat-
WiX liquors, and which contains no exception in favor of imjiorters
whose inijiorted liipiors remain in tiie ori^^inal iiacka>;t's, or of dealers
holdin;;' onlstamlinj;' licenses, althon.uli voiil as to such importers, and
perhajis void as to license holders, is valid as toothers. If a law wliii'h
is constitutional under ccitain limitations exceeds those liinitatio;is. it
inav still be oiierative within tlu'ui and void only for the excess. State,
r. Aiiuiii. 113

II. Where a person is imprisoned for refusin.<;- to testify or ai>])ear before a
couidv attornev in a proceedinii- under section 8 of the act of March 7,
18S.') (kansaN). which is amendatory of the act i)rohibitinj;' the iuanu-
facture and sale of intoxicating- liijuors. he is restrained of his lilierty
without "ihw )irocessof law." within the meaniuK of the fonrteeiith
amendment to the constitution of the United States, and entitled to
be released on liabcitH corpus issued by the United States circuit court,
III ir Zichotil, 110

Vr.UDICT dK K.I.F.VICN PKHSOXS IN CAPITAL CASE A NULLITY.— -Tho Consti-
tution K'lJiranties a jurv of twelve men, the common law jury, and the
ri^ht to be tried for'criine by a jury of that number is not a mere privi-
h'i;-e of the i)risoiier. but a le<;i>l i't'<l"'''t''"t'"t! which cannot he chanj^ed
by the consent of the prisoner. The verdict of elevL'ii jurymen in a
capital case is a mere mdlity, and any judgment rendered thereon
a-ainst the prisoner is without jiu-isdictiou and void. Terntiii!/ i: Ah

574

prisoner is witnoui ji
Wall and Ah Yen,

STATI: STATUTE HF.LD NOT IN VIOLATION OF TIIE CONSTITUTION OF THE

UNlTt:» StatI'.s.— The statute of Missouri ])roviding for the punishment
bv line an<l imiirisonment of any jn'i-son who shall maimfactiire "out
of anv olea^iinous substance or aiiv coin))ouiidsof the same, other than
that produced from unadulterated milk, or cream from the same, any
article desi-ned to take the place of butter or cheese prodmrd trom
imre. unadulterated milk, or cream of the same," or who shall sell or
olfer for sale the same as an article of food, i, not in violation ot any
in-ovision of tlie constitution of the United States. In re Brosnahan,
Jr., 1«

AMERICAN CRIMINAL REPORTS.

18. Patentee not rROTEfTED adainst violation of state laws. — The
sole objoct anil purixwo of tlie patent laws is to give to tlio iiivt'ntur u
monopoly ot° wiiat lu' lias disoovmHl. What is Ki'aiit('(l to him is tlu'
exclusivo rif;;lit, not tlu' al)stra<t riKl't; l>"t tlio ri^'lit in liiiii to th<>
oxchision of I'verybotly I'lsc. Ho is not aiithori/.oti by llu! jiatcnt laws
to mannfactinL' anil sell the patented aitieie in violation of tlie laws of
the state. His enjoyment of the iif;ht may bo inixliliod by the exi>;en-
eies of the eoiiumuiity to whieh he beloiiKf^, and re^nlated by laws
whieh render it snbservient to the j;eneral welfare, if held subject to
state control. lil.

13. Patent — In what sense a contract.— A patent is a eontract only as
betwei'n the parties to it. namely, the United States on one side and the
patentee on the <ither, and the rifj;hts eonferri-d thereby can I'xteiul
no further than tlie rif^ht granted to the patentee under tho patent

tf).

10.

17.

IH.

19.

20,

laws.

Id.

14. DEI'iaVATION OK MIIEKTV OR i'llOPERTV — FOURTEENTH AMENDMENT TO

THE (.ONSTITITION. — The statute above named dot-s not dt!privo any
person of lilierty or property without due process of law, within tho
meanint!; of the fourteenth amendment to the constitution. Id.

Title of acts. — A statute is not unconstitutional as a whole, inider
the constitution of 1H(;8 (Louisiana). I)ccanse all its objects are not ex-
ju'essed in its title. Those jiarts of the hiw which are indicated by the
title nnist st;uid, while only those not so indicated will fall, unless
thoy are so interwoven with, and dependent upon, t'ach other that they
cannot be separated. Stale r. Kniicio.'^, l(i(i

I'r.F.SKNC'K (IF DEFENDANT IN A CAI'ITAI, lASF.— When the defendant (h'-
clined an invitation to be present at a view taken by the jury in a capital
ea.se the judf^ment should not bo reversed on that K'"ii"il- Stale r.
BuzzcU, 410

Trieiw — PuKSENCE OF A<( FSED itKFoRE.- Under a statute which pro-
vides that, " if the indictment is for felonj', the defendmit must be per-
sonally ](resent at the trial," the prcsi'uce of the defendant cannot be
disjiensed with before triers appointed by the court for tlie trial of tlu^
suliiciency of a cause of challen<;e to a juror. Ilaiit e. Utah, 417

Witnesses — STATiTE which removes common law disaisimtv of, not
K.K I'OST FA(TO. — Statutory alterations which do not increase the pun-
isiuneiit, nor change tlu' inn'redients of the olfense or tlie ultimate facts
necessary to establish Kidlt, and which only remove existint;- restrictions
upon the competency of certain cla.-si's of persons as witnesses, relate
to modes of procedure only, in which no one can be said to have a vested
ri.u^ht, and whieh tiie slate, upon grounds of jmblic policy, may reyidati^
at jiloasure. Id.

The lof^islature cannot deprive a jiarty of his ri;^ht to a trial by jury, in a
criminal charge, before a just ice of the pi-ace. Suih trial nnist be given
cither there or on appeal, the constitution guarantying u trial by jury
ill all jiro.ivcut ions. I n re liolj'n, 440

A<T ESTAULISIHNO COURT CANNOT IJE ATTACKED BY SPEC:IAI< PLEA. — A

prisoner, undcsr indictnient for murder, c'annot, by a special [ilea to the
jurisdiction of the court, imiieaeh the constitutionality of uu a<'t of
assend)ly wliich dtisignated the county in which .said court was held as
a separate judicial district, uiion the allegation that said county con-
tained less than the number of inhabitants reipiired under article V,
section ."». of the constitution, to entitle it to be con.stiluted a separate
judicial district. Coyk' v. Com. , 870

21. License — P'^ddlers. — An act which discriminates against the proclucts
and mamifactures of other states, by requiring jieddlers to obtain a li-
cense to sell the same, is uncuuutitutiuuul and void, titate v. McOinuis,

349

See Evidence, 3. '

INDEX.

(!2l

CONSTntJCTION OF STATTTTES.

1. Construction of • i:.\Ai. codk with uefkuencr to persistent nuMi-

NAIA—Tlic provision of the PoiiaK-'odo (New York), imrojiHiiiKthi'imn-
iHliiiK'iit wlicri- tilt' oiloiiHC! fliar}j;iMl isasocoiid oircnsc, applios to c-aaoa
wlicri' tlio lirst olFi'iisi^ was (•oimiiittcd iK'fon'saiilfoih^ wont intoolFwt.
The first oifonsc is simply a fact in tiic past liistory <>f tliu criminal tO
l)c> taken into consideration in prescriltin;; punislin'ment tlicrefor. The
|)r<)visi()n, tlierelure. is not limited in its application hy the provision of
said code declariiif; that none of its jn-ovisioiis ai>ply to an oft'er.se com-
mitted or act done l)el"ore it went into effect. Tltc People v. llaijtnvnl,

124

2. Same. — Nor is the ju-ovision first mentioned limited to oases wliore tho

second conviction is for an offense <»t' the same character and v;rado as
that which resiiUi'd in the first. Where, therefore, defendant was con-
victed of tlu^ crime of for;;('ry in the first de<;ree, charged as a second
offtnise, and it appi ared that he had heen jirevionsly convicted of f'or,>;ery
in the tliird de,i;rei', held, tliat as tiie " snhse(|uent crime was one which,
upon the first conviction. nii;;lit he jiunisiieil, in tlie discretion of tho
court, hy imprisonment for life," it lieinj; the second conviction, such
punishment was im])erative under the law. Ji{.

W. liErEAL OF — I'ii'FECT OF AMicxDMENT.— TIio repeal of a criminal law
hy an anienilalory act whicli chan};-es the repealeil act only hy reduc-
ing:; the punishment, when the repeal and re-enactment were intended to
contiime in force the uninterrupted operation of tlie old statute, will
apply to crimes committed hefore the new act took effect; and theof-
feiuler may he punished under the law as amended. Hair v. State,

127

■t. (Jriminal statutes nuist he strictly construed, and no case is brought hy
construction within a statute unless it is completely within its wctrds.
State, I'. (Iralidiii, 270

r>. Repeal hy implication of a prior statute bj- a later one. Sifred v. Com.,

See (JRUEi.TY TO Animals. Ejiuezzlement, 7. Civil Puaotice Act —
Pkactice, 20.

CONTEilPT,

1. Notary pukmo — Povv'er to commit for contempt. — The statutes coi;-

fer authority on notaries pul)lic to con\mit to prison any witness who
refuses, when dulv sununoned, to give liis tk>i)osition. U. S. (Mis-
souri) 187i), i-;^ 2l:!;5; 215(), 4027. E.v parte PricNt. V.U

2. . A ])arty to a suit is under the same ohlif^ation to give hisdeposition

as any otlu^r person. Id.

;j. . That a witness resides within the jurisdiction of the court in which

the suit is jieiKling. is in good health, and contemplates no prolonged
absence, hut expects to be present at tlie trial, is not made by tho stat-
ute an exi-eption to the right of a jiarty to the suit to have his dei)osi-
tion taken.

CONTINUANCE, ,

Id.

Absence of wiTNESsr.s. — One ground for a continuance in a criminal
case was tin; al)sence of witnesses: l)ut it did not appear from the affi-
davit but that tiu! same facts might be [n-oved by other witnesses.
Held, that this ground was not sufficient. Dunn v. The People, .W

Same — Want of time for attokney to prepare the defense.— An
offense wa.s alleged to have heen connnitted on March 31, and tlie de-
fendant wiis arrested on the same day, so that both lie and his counsel
were then informed of the natuie and character of the offense with

624

AMKRICAN CIU.MINAL KKl'OUT.S.

■■

Mliicli till' <l('tViiil;iiit w«s fliarf^fd, iiiid llic iiKlictinciit was iii)t found
initill'orty-scvcii diiys tlicrcal'tcr, iiiid tlic triiil wii^i had twenty ilays
later. It was apparent from llie nature and cliaraeter <>( tlie ease, as
hliiwn Ity the recDi-d. that the del'endant lia 1 anijili' time tn |i|('|)aie t'nr
trial. It WAS liclil m> ern>r to refuse a <'<)nlhni;iiice on the ;j,ronnd that
(lelViidaiit's counsel had heen so oeeiipied with otiicr cases in tlie circuit
nufl appellate coiu'ts that he had not sullicieut time and opportunity to
jirepare the case lor trial. J<l.

;i. AllSI'.XCK Ol- WITNKSSKS — :\I .VTKItlAl.lTY Ol'' Till'. ri!()I'OSi:i) 'riXriMONV.—

Preliminary to tlie trial of two derendants on a charj;i' ol' murder,
alle;;ed to have heen committed on the ni;:;ht of the lOtli of tinly, liy com-
peliiii:; the deceased to jump from a raiii'oad car while in I'apid nm-
tiiai. the court refusecl a ciaitimiance on liehalf of the aceiiseil, asked
on till' ;;ronnil of thi' ahseiice of two witnesses residin-^ in Iniiiaiia, hy
\\hoiii tlie defendimts e.\pected to prove that sui-ll witnesses saw the
del'eiidants at the town of (iodfrey, in Madison county, Illinois, on
the cveiiinj:; of .Inly !t. a place (list ;m it senile t uenty-livi- or thirty miles
from where the oli'eiisc was char,i;(Ml to lia\e heen i-ommilted. 11(1(1.
no eri'or, as the allidavit failed to show any inconipal ihilily lietwcen
the fact alle;.;('d. as expei'ted to he proved, , and till' conunissii in of the
oli'eiise hy till' defend'ints. 'J'lie alisent testimony was immat"rial.
AtldiiiHct (il. r. Th(J'((>i)l(\ ' Jiol

4. The jiraiitiii":: of a <'oMtiiiuance is within the le;;;!! discri'tiou of the court
<i <iii(). with which the supreme I'ourt will not interfere without mani-
I'esi cause. The Sttitc c, FulJ'urtl, \'-\

COUONER,

See lNvri:sT.

r()RP01?.\TK)NS.

Tlie iirojier mode of l)rin;;in;i; into court a corporati<')n charp;ed \vith a

criminal offense is hy service of a copy of the Mimmons upon one of its

odiccrs or a;;ents. The acts of assemhly in reference to ser\ ice of

jirocess ill civil and criminal cases reviewed. Stale r. linilvadd ( 'o., i:!T

Foreiyu iucorponitiou uiay be shown by indirect evidence, see EviDlCNci'., oi.

CORPUS DELICTI,

1, Circumstnntial evidence is com|ietent to establisli the fact that thi> per-

son ch a rj;t'd to have liei'ii murdered is dead. Tlu^ ](roduclion of the
body is certainly the best evidence of that fact; but this is not always
possible, JuhiisDii v. Co///,, I in

2. The conclusiveness of circumstantial evidence to establish the fact of

death is for the .jury, and not the court, to determine. Thi' court is
only concerned in secinuc that iniproiier evidence docs not ,';o to the Jury,
ami that they are properly inslriicti'd in such cast's. ///.

;]. In iirosecutions for homicide tlie ('(irjiiis (tclicti nuist be shown tirst, so
far as the testimony can be separately .!;ivcn, and especially so far as
c!in be shown from iK)iit-iiiini('iii examinations. The J'coplv v. Hall, Wu

4. As to ideiitilication of body of the person alleged to have been murdered.
7/oy// c. Utitli, 4i:

See Receivino Stolen (ioous, \.

CORRUPTION IN OFFICE,

1, Plkadino. — An indictment under a statute must state n\\ the rirctim-
stances whicli constituto the oileuse aa defined in the statute. Ikijid r.
The Com,, 14;]

INDEX.

025

2. Same.— Tlimifch the ofTonsc, at common law or by statute, is defined in

KiMicral term.s, yet the indictment must t!lnirj,'o it suetilicully, and de-
Mcend tt) particulars. /d.

3. Same — Officials.— In an indietmont for corrupt misbehavior in ofHce,

thu act must be distinctly charged jus done knowiuL'ly and witlicorruiit
motives. jfji^

COUNSEL.

QUESTlOXIJfa COJIPETENCY OP f'OUXSKL ASSIGNED TO DEFEND AN ACCUSED

PERSON.— When the court below assigns counst'l for tlie ilciense of an
accusetl person, it will be presumed that he was fully comjjetent to
discliarKe the <lnty jusslKiied him. His competencv cannot be made
an issue on a motion for a new trial. Murphy v. the People, 323

See Practice, 13, 13, 14. Ui},'ht of, to consult witness, see Witness, 1.
Want of time to prei)are for defense, see Continuance, 2.

CRUELTY TO ANIMALS.

1. Construction of statute.— The term " needlessly," in the act " for the

j)revciition of cruelty to animals," moans an act done without any
useful motive, in a si)irit of wanton cruelty, or for the mere pleasure
of destruction. Griae v. The State, 146

2. Same — Burden op proof.- Tlie burden of proof waaupon the state to

show not only the kllUnjj;, Init tliat it was done under such circumstances
JUS, unexplained, would autliorize the jury to believe that it was needless
in the sense of the statute. Id.

8. Same — Useful ob.iect in kii.lino.— However unlawful the act may be,
and whatever penalties mi.t;ht be incurred under other sections of the
statute, the defemlant should not be convicteil under an indictment upon
the particular section of tlie statute, if he had some useful object in the
killing, such a.s the protection of his wheat and corn. Id.

DISORDERLY HOUSE.

1. Immaterial averment.— It is necessary to prove matter of description

only where the averment, of which the descriptive matter forms a
part, is material. Stale v. Dame, 444

2. Same— Character of those who frequent it.— The indictment being

for keei)iiig a disorderly house, an averment therein that " in the
said house certain evil-disposed persons, a.s well men tus women of evil
name, fame and conversation, to come together," etc., is immaterial —
might be rejected as surplusage, and it was, therefore, unnecessary to
prove it. Id.

DYING DECLARATIONS.

11;]

1. Dying declarations are admissible only in cases of homicide, when the
death of tlie deceased is the subject of the charge, and the circumstances
of the death the subject of the decilarations. Reiinoldsv. The State, 153

8. They are ina<lmissible when they relate to facts unconnected with the
declarant's death. Id,

3. If they were made under a sense of iini)ending dissolution, it matters not

that death did not ensue for a considerable time thereafter. Id.

4. There is no rule which would exchide them because the circumstances

producing anil attending the death can be shown by other evidence.

Id.
Vol. IV — 40

C2G

AMERICAN CRIMNAL REPORTS.

G. Otiisti EViD^rias 07 s.vmi: fact.?. — D/in-; cle^lar ition^ nra a-luiiasible in
eviile:i(!0. altlioii ^ii tin* fa !ts wIiLcli tlicy t?n I to ULitabllsh may bj provo I
by otliur tujtiiiu.iy. i'ujae v. Tke State, 15 j

0. 0?I^JION o:i iM7.'3:tJ:\jj:.— Tiia ilaolavxit's iniorfiTi that tin .T,;:!m-j;l sli)t
him witlDLit ci'.iijis not a'l itif(>i',;a.',3 or o^);iiiaa, bu!; hL> atatjai vit
of a fajt, aai u u.Luisjiblo in evid jacj. Id.

ELECTION.

Fedt:rat, et.^.ttion — Co^rMTSiioM 07 cm^i:: — Umittid Rtate'; oi^ric:::*.,
ETC. — Potitioncr.-i w^nv in lictaJ by thu grand jury of thpcriaiiaalcouit

duty to lveL'[)
disturbiacoo
Rhal of the Uaitc

1> . ....

arr,' hit siiJ olu..'ti )n b.'t.w.Ki oajS.n,t'i,adc\)aty-.n ir-
l Ktat(.'-i. an I a largo niun!)L'r of otliur i),'!'.io.is inrit:' I

tliercto liyspcrial roastabhvi of Cm'.i county; that in or^Icr tixjuiill said
disturbance iK'titiosiLTs t)olv said S nitli int) crust :).ly and w^>re proce- 1-
ing with him to tho olU 'e of the Unite 1 StatiM commissioner to miik >
complaint ajjainst him for disturbing the pt'acc, wlienassaulte I and lired
upon by a large number of armad m;>;\, ain)ng whom was tli'i decea'.ed,
who tlireatene 1 petitioner.s and saiil Kaiitli unless ])etitioners tunic. 1
over said S.uith to the state authorities; that, rcfu.-iing to tromply with
thisdeinan 1, tliey were lu-(> I upon, and som • one of the atta'-kiiig])arty
killed deceased. Tiie petitioners ]n'ay(> 1 that a writ of lidbcns C)rj>ii:)
cniu c'tnii.i issue, directed t > the criminal court of (',)ok county, re piir-
ing tiial; court t:» stay all further proi',-;' line's against petitioning, an 1
that the suit be rem )ve 1 under the [irovisions of scL-tion (H;5 of the
R 'vise 1 S: itutiM of the Unit.' I St.ite.i. //■/ 1. that the m n-e lioidiu ; of
a commisiion as deputy-mir.^hals of the United State.-!, Uiider t!ie cir-
cumstance.s set forth in the ])etition, ilid not with Iraw th'.> (rase from the
jurisdiction of th;' state courts; that there is no fe leral statute malcing
a (li.sturbauce at the polls an oifense against t!ie Uiiite I Siate.s, and as
Smith wa.^ violating a state law, |ielitioners had a right to arrest him
and tur.i him over t) the state anthoritit's; tint the fa,.'t tliat h ' w.is a
deputy-marshal of the United Wtate.s entitled him t.» no morectnsi 'o 'a-
tionor protection tlian otlua's engageil in the same disturbance. Hi'ld,
also, that the ctuse diir.-ro.l from o!i,' In which de;)uty-nlarsllal^^ of the
Unite 1 State.-!, in repelling tVn-ce by force in defen.se of them-
th^'lr prisoner.5, sh;jt aiid kille 1 an as.sailant. Stat^'. v. Flflchcr,

i.-olves or
157

e:\ibezzle.mcnt.

1. E^TorPiCL nOF.r-? not a pity to cuiMTNAr, {"Asix— The dcr(nlant, who

hi I be.'n a i-onnty trea-auvr from IS! I t.) ISiS, w.u in lii't.' I t'nr c n-
bezzlemeiit, and the state introduce. 1 in evidenci' the seltlcment sheet
wliicli wa.s ma le at the commeiicenii'iit of the defen hint's hist term of
olTice, with his certilicate thereon that it wa.s a true statement of cash
then in his h 1 1 Is a^ treasurer. VViiereiri m defc 1 laat si>a.;!it t i s'i;)w
that the shortage complained of in the indictment o<'(ana'e I duviiig his
prior t'-rms of oHice, and more than three years Ud'ore the indict. lunt
wa.s fouiiil, and th; '. therefore, the pro.setaitinn was barred by the stat-
ute of lim!titioa-i. which tstiin >ay t!i.' c;)nvt refin • 1. IF!l\ th.it t'...^
.. defendant should have been allowed to show, if le could, that ii<> defal-
cation took pla<'e within three years next before the linding of the in-
dictment. State r. lliitvliiiisitii, KiJ

2. Same. — A dt^feiidant in a criminal case may prov<» the actual facts in

dispute, notwithstanding any admissions or confessions lu may have
made to the contrary. (Conclusive presumptions and estopjiels have no
place in the cruuiiial law ostublisliing tlie ho.ly of the crime charged.

Id.

INDEX.

C27

fads ill
lay liavc
I liav.' iii>

Id.

8. EMUK^ZLEMnNT OP ANY 0FFIC7.U OR " OTIIKR PKRSON."— Act No. 43 of
1871 (Louisiana), providinj; for tlic i)uniKlinient of " any offu-er or other
person, cliarsvd with tlu'c-olU'ction, roccii t,safc!-koL'i)in;^, otf., jf iiubliB
money, who shall convert it to his own use," et<\, <;learly covers the
case o\' a dork of the ailministr.itor of finance of the city of Now Or-
leans, guilty of such an at.-t. State v. Exniclos, 1G8

4. One employed to sweep out store, etc.— Wlion goods come into the

possession of a servant, out of the ordin.iry course of his employment,
but in ])ur.suanco of sjjecial flirections from the mii.stor to receive them,
and the servant embezzles the same, \w is indictable under the statute.
Til c re fore, where on»* employed by a merchant to swec^) out iiml wail
about the store, but not a.s clerk, was authorized by the merchant to
tak(! a, lot of shoes and sell them during his visit to .a neighboring to\vn,
wliich he did. iuid convertOLl the money to his own use, held, tiiiitho
wa.s a servant within the meaning of tiie embezzlement act, and re-
ceived tlie gtKKls by virtue of his emjyloyment. Stutii v, Contiu, 1C9

5. V.'ii.vT IS POss:',:i:^ioN of oood;; p.y an employee, belonoinq to em-

PLOYICR. — A bank clerk iiaving accets to the funds and becurities of
the bank in its vaults, and trusted with their keeping for various puiv
looses, may be said to have their poi-set^sioii by vhtue of his employ-
ment, within the meaning of sottion T5 of the Cnmimd Code of lUiuoiFi.
Ker V. The People, 211

G. Ejiijezzlement — Larceny at common law. — The fact that the felo-
nious talcing of monej's and securitii's out of a bank vault by a bank
clerk, and converting them to his own use, may bo liUceny at coiit-
mt)n law, makes it no kio embezzlement under the statute. It is
entirely com]jetent for the legislature to declare what acts shall con-
stitute the crime of embezzlement, and fix tho punishment. Id.

7. Statute defining emp.ezzlejient. construed. — The word "ctu-e," aa

used in sedion 75 of tiie Criminal Code, relating to embezzlement, is
the e(iuivaleiit of "custody," and may mean "charge," "safe-keep-
ing," "jireservation," or "security." Tito word "possession," as u^:cil
in the same section, has, ])erh;ii;s, a dilferent trnd brotulev meaning
than the word "care;" but it may also mean "to keep," "to take or
seize bold," "to bold or occui>y." s ilie owner of ])ro|ierty would or
nnglit do. And it maiters U{tle wlidlier one or both words ai'e used
in an indictmei:t. 1(1.

8. Variance as to ownership of se( i. hities EMBT.zzLi:b. — An indict-

meiil i< r eiiiliezzlemcnt ami larcc'iy charged tl'o moiiej', funds and
securities embezzled and stolen, as the goods and personal property of
A, H and C. partners under tiie name of A, B & Co. The proof showed
that lid'ore tlie alleged offense the firm w;i.s composed of A, B. C and
D. <U)in;v business under tiie MUiie name, the latter beuig a speciid
jartner, and tliat the articles of partnership were a matter of record;
but that bd'ore the alleged effeiise. D retired fr< mi the firm, although
tlie dihyolulion of the livm of the f"ur was ii(;t made a matter of roo-
ord, iind nitice given, as reciuired by iaw. Held, tliat there was no
varifuici', as. alter D retired, the iiroperty iu fact belonged only to A,
B and C. ^<*.

0. EviDi-.NCE OF various act^;.— The statute (s-edion 83 of the Crim-
inal Code) makes it siillitient for an in<li(lment for embezzlement
to allege, generailv, an emliezzlenienl, lrau<hdent conversion, or tak-
ing, with intent to convert to the di'fendant's own ute, tiio moiwy,
funds or securities of the employer to a e(>rtain amount or vauui,
without siiecifviiig .my I'.artieulaVs of siidi emliezzlenn>nt, and on
the trial evidence n.av lie given of any riieh enibezzlemei.t, frauil-
ulent conversion or taking with such intent; aiul it is made mdfl-
cient to niaiiitain the iMiiidnunt. that iuiy bullion, money, not«,
bank-note, cluvk, draft. I'ill of ex.liMii .•,.• ov other i! ■unity for menty
of the eni|)lov('r. of whiitever value or aiiioui.t, was I raudulently con-
verted or taken with siidi intent by thederU or employee. In suoh

628

AMERICAN CRDIINAL REPORTS.

case it is proper to allow proof of any and all acts of embezzloniont to
go to the jixry. if'

10. An indictment for embezzlement substantially in the language Ci the

statute is sufficient. Jd,

11. When coukt will not compel an election as to a single act.— On

an indictment for embezzlement and larceny of moneys, funds ami
securities, there is no error in the court refusing to compel the j)ri)secu-
tion to elect upon what alleged act of embezzlement or larceny a con-
viction will be asked, as embezzlement may, and most often does,
consist of many acts done in a series of years by virtue of the confi-
deutiid relations existing between the employer and employee. Id.

ERROR,

1. Error will not always reverse — Exclusion of evidence. — Although

the court, on the trial of a cause, maj' err iu the exclusion of evidence,
or in refusing to allow certain (luestions to be i)ut on cross-examination,
yet if the supreme court is fully satisfied, under the facts of the ca.se,
that the error coul.l not liave affected the result, the error will afford no
gi'ound of reversal. Ritziuan v. The People, 403

2. Same — Instructions. — A .ju<lgment will not lie reversed because of the

I'efusal of the court to repeat a ruling once distinctly made diu'ing tlie
progress of the trial. IStatc v, Duzzcll, 410

The doctrine of
Hutchinson,

ESTOPPEL.

estoppel does not apply to criminal cases.

EVIDENCE.

State V.
162

1. Sale of cattle under quarantine— Belief that quarantine had heen
REM()Vl:d may be shown. — On an indictment for selling cattle, knowing
them to be under (luarantine. evi<l('!ice was given on the trial of f.-tcls
tending to create a belief in the mind of ilefendant that the(|uar!intint>
bad been removed when tlie .sale was made. It wiis held error i.' the
court to refuse, on reiiuest. to cliarge for an iic<|uittal if the Jury found
that the defeiKlaut did so be"

State,

■iiove and acted upon that belief.

i/C.'.S /".

178

2. Cona'ICT cannot be sworn in a cause. — The district court having mI-
mittecl tlie testimony of ;i convii'teil felon, notwithstanding tliedefcml-
ant's objection, the verdict nf the jury nnist be set aside and a new trial
gi'aiitcd, altliongli tlie oliirrtioiinbli' wilni'ss teslilii'<l he knew nothing
about the ca.se. State of Lutdfiidiia r. Mullen, ISl

8. CoMi'KLLiNU prisoner TO IWAKE PRoFKKT OF HIMSELF.— In a criminal
case, the place at wliicli tlie prisiPiier's leg was ani)iutaled being a ma-
terial tioiiit, it was error for the cMint to re(|nire liiiii to make profert of
liimself, so that a w itiiess cuilil see li inland deserilie his condition to the
jury. A defenilaiit in ii eriiiiinal I'ase cannot be n><juii'ed to give evi-
dence against liimself, either by acts or words. Jilaekivll r. The State,

IHil

4. Error to state that a contested point is concekei). — To state to

the jury in a imn'der ease that it was conceded that tlie ileecdsed wiis
killed with a pistol was error, where no such coi'.<'ession was made, and
the weapon us"(l was a luateiial (piestion in the case. That tli(> de-
fendant denies alt<tgether that be conunittel the homicide does not
admit its connnission in the manner claimed Ity the slati'. J (I.

5. Other offences cannot he shown unless connectei).— Kvidence of

the perpetration by the del'endaid of a crinii- other tlian that on trial is

INDEX.

029

not ndniissible unless such oonnoction bo shown botwoon tbo two of-
feiisoa MS tends to prove that if Ibe detent lunt were guilty of the one, he
was also guilty of the other. Sican v. t'nin., ' 188

6. Circumstances explanatory of such evidence are ADJUssiBUi;. — A.

and B. were jointly indicted for robbinji; C.'s store. On the same day
and in tlie same locnlity, D.'s Itonse was also roi)hed, to which olfense A.
had j)leaded guilty on another indictment. The commonuealth, on tlifi
theory that A. and B. were members of nn organization banded together
to commit burglary, f)lfered evidence of A.'s complicity in the robbing
of D.'s house to support the indictment against A. aiid B. There was
some evidence that on the day in ([uestion A. and B. were seen togetlur
in that locality. Held, that no such <.'onnection was established between
the oiFenses as warranted the sulnnission to the jury of tbe evidence of
A.'s comi)licity in the robbery of D.'s house, so as to affect B, Id.

7. Reading i i!OM a book on medical .iuuisprudenx'e not introduced

IN evidence or proved to ue oe standard authority. — On a trial
for mnrder, the <listrict attorney, in his closing arguinent to tbe
jury, n^ad, " as a ])ortion of his argument," and against the objection
of ilefcndant, various sections from a book called "Browne's ^Afedical
Jiu'is]irnden(<' of Insanity;" the book was not introduced in evidence,
and no testini<iny had been introdui-ed to sh()w that it was a standai'd
work of recounized authority on the subject of insanitv; Iteld. error.
People v. Wheeler, ' ' 191

8. Declarations to physician touciiinc} piuxsnancy. — Declarations made

to a ])hysician of bodily tVelings and symptoms of preg lancy at tbo
time of examination, are admissible in evidence as piirt of the facts on
which his opinion is founded. Stuic v. Gcdiekc, (3

9. Same — Cross-exajiination. — A witm-ss of the state, cross-examined as

to the declarations of the patient concerning her pregnancy, ma«le to
him as a i)hysician din-ing liis examination of her condition, cannot
bo re-examined as to other unconnei ted asseilions in the sanu' conver-
satii n, charging the defendant with criminal acts to produce mis-
carriage. Id.

10. EviDi.NCE AS TO PRIOR ACTS. — Acts of tho defendant at other times

may be shown as temling to prove the intent of defendant, and if com-
IH'tent to prove tbe crime charged, it is no objection that it also tended
to jirove other crimes. Com. v. Coikiit, 15

11. Previous oood character. — Previous goo<l character is not of itself a

defense, but is a circumstance which should be considered by the jury
in connection with all the otlieri'videnie, and it may besuliicient totum
till' scale in favor of tbe a<cuseil, l)Ut its value as (iefensive evidence in
any given case is to be determined by the jury. State of loica v. Don-
oriin, 25

12. EvioENCK of witness deceased sinx'E former trial. — Where a dtv-

ccascd witness testilied, upon ii former trial of the same party for tho
same oll'ense, being brougiit " face to face'" witb the accused, and ('ross-
examint'd by him, it iscom|ieteMt upon a subseipient trial to jirove the
testimony of such deceased witness; and such proof does not violate
the provision of the constitution of the state which givi>s to the accused
tbe right to " meet the witnesses against him face to face," Iliiir v.
State, 127

13. EviDi'.NCE OF COURT RF.PoRTP.R AT FoitMKR TRIAL. — Wbero a court re-

porter is sworn as a witness fortbe purpose ol proving the testimony of
a deceased witness, and where such reporter testifies that tbe notes of
tbe testimony of su<-li deceased witness wei'c accm-ately taken by liim
at the time tbe tc.-,timony was given, sucb notes nuiy be used by the re-
pnner in giving the testimony of tbe deceased witness, for the purpose
of n'freshing his memory, uud if necessary ho may road the testimony

to tbe jury.

id.

5''.' '

030

AJIEHICAN CRIMINxiL REPOUTS.

:|i#

14. E.1U0II TO itEAD nF.couD OP Divoncn. — It was ormr to roail in tlio hcarinj?

of tlio Jury the rocoivl «t' the court in the <livoire prooee'lings to ot;talJ-
llsh tho co'mpetoiicy of tlio wile »» a v»itiie.«, it being u <,uet.tiou bolely
for tho court to determine. IState v. Ilminctt, 38

15. On CIIOSS-EXAMINATION ILL-Tr.EATMENT OF WIFE CANrrOT liT: SllOWn.— It

was error to allow the state's attorney to go into an in((Vi!i'v, a;;ainst an
cxeoption, on the erosi--exa,niination of tlx' r(!,s|,()n(l(>nt, a« to whether he
lijid been eoniplained of and lined by a town grand juror l't)r ill-treat-
ment of bis wife. Id,

16. AD:iussiiiiLiTY OF STENOCiUAriiEU's NOTFs. — To eonlva(li( t the resjondent

by proving that he had te.-tilie. I ditt'erently on the loriner trial under
Uiesunieindi(tnii!nt, thea.dniissihility of the stenographer's notes of bis
crosri-oxaniination de[)tMided on their r(>K'vaney; if relevant, admissible;
otherwise, not; hence, it was the du|y of counsel to have selected those
passaged contra lietory to his last ev'ideucL;. Id.

17. SAira — STENOO?iAPiiEU siioui.D CE swoiiN. — A t tenographov, although a

Bworn officer of the court, when he reads his notes of the tc^liinony of .i
former trial, as evidence, nuist be sworn like any other witness; but if
not, if known to the opj'osite counsel, tlie objection should be raised in
season, so that the oversight may l)e corrected. Id.

Weio:it Oj' defendant' -i t.c-itim )NY in criminal case, when testi-
F»'1N(» IN HIS OWN BEHALF. — On the trial of one for an assault with
int(!nt to murder, the c-onrt inslrn<ted the jury tha.t th(> credibility
and weight to be given to the testimony of the defendant testifying
m bis own b<'half, was a matter fcr the jury, and that in weighing
the defendant's e\ i<lence they )ind ii right to take into consideration
liis manner of testilMng. Ihi' rc;isonal)ieriess ol his ac<'(iuiit of the
U'ansaction, and his mlere.-t in the result. Ililil. that there was no
error in giving the instruction. Dunn v. Tin' I 'eo pic, 5J

PAROI, NOT ADMlSSIin.E TO SHOW K::S!)IA'TI()N ok COMMON OOFNCII,. —

13.

1(1 ilelcMi

lant

wius a nicnioer oi

U' coinni i:i (•(MUicil of C ipe M;iv, and

wa.s indicted, under the statute, for furnishing supjilies which had l:een
paid for b\- such council ; to jirove sncli payment, the trcasurei' of the
city testified that he made such i>avm(>:it, and that the council had,
Iiv resohition, ratdie 1 the same, llrld, thit such proof ol the contents
of su:!li resohition w;us illegal. Hlnte r. Mit'jnttli, x!7'.>

80. Ol'" THE EVIDENCE AOAINST ONE CHAR lED WITH MUUDK;:. — On the Iri.al

of t\v,) pens;).'!-; oa a (;h irg ' Ol' mar ler eomnitt.' 1 on .July 10, IHi!!. by
compelling ;i pasuviger t ) jii n i i'ro;u u r.iihv.iy tr.iiii while it wa.'i in
motion, t.vo witnc.-i.ivM for th' pe:>;)li! \v>'re allow.- 1 to ti'.tily, over an
ol)ie^'tio'.i. th;it thev s:v\v tlio «b'le i hints, an I two ollu'r.i, with whom

tJio (1.

llMtl

in lict '1 for th ! m I/ ler. tojj'ilu'ron t^

■anroaii

track on .July 8. l^Hl, and that one of tiiem hid a revolver. Held, th; t

i-s no legal olijeclion to this te.stimony. Adiiiiis ct id. r. 'I In

■)1
St. Same. — Tn the same case, thi' state's attorney, in the examination of on(>of

til
I'rople,

tbes(! witni'-'Ses, prodm-e I a watch chain, and the witn

nd it

Lis chain, and that he ha 1 it on wlien he met th(> d<'rcMdaMt.'< and the
two ()th(;rs who W(>re indict, 'd. on the evening of July f. 1MS;5, — which
Wiis objectisl to. lli'lil, that while the evidence as to the watch chain
might properly enough have been exclude I as irrelevant, yet it was not

etilH 'i(Mt1v harmlnl t > t'l ' il

li it-i t I m I'i

its a bni.' slon materia

Ci'ror. It w.)nld nut justify an inl'e.-.'.ice tliat the witness had been

robbed by the four men.

Id.

23. Ramf. — So, too, one of thesis wilncsse:'-, in answer to the incpiiry whether
tliere was anything unusual tocanse him to reme;nliei' the t nieof seeing
Que of the defendants on the morinng of July H. IKH'i. saiti a man wa.s
found (h.-ad that morning, — a stock man, who hail fallen from a train.
Held, that the eonciluding part of this evidence repelled any inference
tliut this man, Iih), hail been thrown from the train by the .'-ame men,
and its adiui::sioa was not error. Jd.

INDEX.

G31

23. At to conduct of nor-fficurou. — It iscTor, in trying: .1 criminal cnso, to

i>X(ludo qiK'stions ni ti' tho condiu-t of the prosi'cntion in sookinj!; to
indui'o till" witness to '-niijircsLS totitlinony or volunt.iiT im^n'ojicr testi-
luony. The People v. Hall, 357

24. ExPFRT test;m iny —Scientific books, f.tc.— Exjicrts cannot bo exiim-

incvl u;)on tliy u-ics that ave contrary to tho nnciatrii licte I fu'ts of tlio
case; sncli testimony is lo;.;ally iulmisHihle on the tvi"<>u'>il <"'ly, that
ordinary jui-ynien have no uncii si>ecial lino\vle(l.u,e as will cnaltle tlicni
t.) understand the facts uliown, witliout interiiretation; it must, tliere-
fore, he jciven }»y livin;;' witn(>ssos who can l)e cross-examined ; and tho
roadiny of ai'ientilic hoolcs to tlie jury, Jis evidence in itsi^lf, is error. Ill,

25. Prophu function of experts.— The pro;)er funirtlon of witnesses sub-

lueaajd to j^ive testimony as "experts" is to instruct t'ae court iind
jury in matters so far reniDve.l from the onlimuy i)ur;;uits of life, that
ju;curato kiiowled.i^e of ilieai can only he .-ralne I by study and ox-

fierience; the object bein.u,- 1) ena'.)lel)oth court and jury to ju;l;;e intol-
ifj;ently i)f the force and a;)i)licatio:i of the several fauts inti'oduced in
evidence. Coijle v. Com., 5)T9

20. Samf. — Opinion of, wiif.n evid::nc;e not confltctini.— In a v»*opcr
ca-ic for expert testimony, where the facts are a Imitt vl, or proved by
evidence not conllictin;;-, the opinion of an expert upon such facts 13
a Imlssible as a si'ie.itili • dedut-tion. Id.

£7. Sa'.if, — I3ut when coxflkting, he cannot nr. asxe!) opinion drawn
FitoM wiioi.K EViiK'.Ncr:. — But where the evidence is conllictin.!?, an ex-
jieit caimot be aslicd his opinion, aa derived from the whole evidence.
T.ie ([ncstions to him shoulil state specili ally the particular facts in
evide.ice, hypothelically assumin;? them to b^i true, u;)on which he is
to express his opinion. lie should be iislced, l)y independt^nt (jucstions,
his opinion as to facts te^lilied to on the o.ie lian<l, and his opinion
ius to opposin;; fads tentilicd to on the other band, in such manner
that the jury can kiiov,- upon what particular state of facts his several
oninions were based. Id.

28. InvVNITY — When inte:iposi;3 as a defense. — Tho defense of insanity
imist 1)0 establish;' 1 by a i)r>'|)on Iv-rance of proof; anrl, in sucli ciuio, tho
burth 'n is not on the st it ■ t) satisfy tlio jury of th'.'stuiity of the jnas-
oner beyond a reasonable doaUt. Gi'jvjs u. Tin; Sl(ili\ 333

23. Insanity produce:) by intoxication, as a d:::':;nse. — Temporary in-
sanity iirotuce.l innnc liat;'iy by intoxication furnishes no excuse for
th<' commission of a homicide or other crime, but a lixed insanity does,
Uj)iil<)iie 1: The People, 395

C3. Same — Qi'Eation of iwrT. — Whether a party committin-j; a crimo is
under th(! iidlnence of a lixel iinanity, or a temiorary one induced
immediately by intox'cation, is a (iU(;stion of fact for the jiu\v, and
their verdict will not be ilisturbed unless it is ck^arly a.^ainst the evi-
diMice. Id.

ni. Same. — While it is true th(>r<? nuist be a jcMnt union of act and int(>ntion,
or criminal nc.;li,u;eace, to constitute a (a'iminal olfense. yi't when with-
out intoxication the law will impui.- t ) the ail a criminal inte;it, — jus,
in tlie case of ;i wanton killiu'; of another witliout jirovocatioii, volun-
tary tlrmdcenness is not a\ ai!abl(> todisprnve such intiMt, so as to reduce
the crime from murder to manslan rhter. Id.

83. Same. — Voluntary intoxicatioi furnishes noex aue for crime committed
u'l ler it-i inllu 'ni';', even it th' int.ixication i< s) extreiuis as to mako
th ' an lior ol' the crim • uni'onsiuous of what lio is iloin^, or to t;reute a
teniporary insanity. Id.

33. Same — I'iViDENcE of Di'.Fr.NDVNT's PHEVioFs iiAiiiT.'^ OF intoxication.—
0,1 the trial of a delendaul foi- nninler, when insmiity is set up in de-
fense, and he is hiiowii to iui\e bittui intoxicated at the time ot the

632

AMERICAN CRIMINAL REPORTS.

homicide, evirlence of his previous intoxication will ho projiorly re-
ceived Irom the prosecution, as bcarinfj; upon tlie ((lU'stion of intoxica-
tion at tiie time of the killmg, and of the conduct of the (kifendant
while in that state. Jd.

84. EviDENCF, — In rebuttal — Time of admis«iox.— Tlie time of rcceiv-

iuK evidence is so niucli a matter of discretion witli tlio court trvin;^ a
case, that it will not be a K''""'id for reverriinp; a judf^mciit 1 hat evi-
dence is allowed in rebuttal which in strictness is n<it proi)crly so
receivable. Id.

85. Sami: — Opinions of persons not experts, as to sanity.— On the trial

of one for crime, tlie opinions of ncif^-liliors and ac((uai!itanccs of the
defendant, who are not experts, nniy be j^iven iis to his sanity or insan-
ity, founded on their actual observations. Id.

86. EXCT.AMATION OF ONE OF SEVERAL PERSONS WHO HAD COMMITTED AN

UNi-vwi'TTii ACT. — Several persons, incluilin;; one who was put njion trial
for murder, while traveiinK aion^ the road entered an orchard l»y the
road side, wlien, without juslilication, in aditticulty witli the owner,
who had ordei'etl them to k<' "'it of his orchard, some one of tli(> party,
by a l)lo\v with a clod, killed tiie owner, and they all (Ikmi .L!;ot into the
wa-;'(in and started toward their homes. A |)arty in pursuit of tluim,
8eekin;j;' to have them arrested. ))assed the w;iji;oii, when ^ome one of
them caile 1 out, "Hello, good-lookinj;- fellow! " or soniethint;- liUc tliat,
but snvh witness so addressed could not say the defendant was in the
wa'j;oii at that time. It appeared, however, from the defendant's own
testimony, that lie did not net out of tiie wa.y;on until after tliev
reached the next point wliere they stoppeil. Ilrld, that the court prop-
erly refused to strike; out of tlic; testimony the words .so spoken to the
witness. Ritzman v. The People, 40;}

87. Cross-examination — LATiTrnE allowed. — Great latitude should al-

ways be allowed in cross-examination, esiiecially in a capitiil c;ise, and
the court should never interpost! exce[>t wiiere there isa manifest aliuse
of the rif;:ht. Id.

88. Sjvme. — Where a witness, on a second examination as to a particular

transaction, states an imp4)ita d fact omitie(l in jiis previous ;ircnunt of
the mattei-, his attention, on ei-oss-exiunination, miiy properly be called
to the fai t. and he be required to exjjlain why the omission was made
in bis lir;t statement. /(/.

89. CONELicTLNd STATKMKNTS. — So, Oil tile trial of one for nuu'der, the dciith

haviii;^' been caused by a blow with a clod from the liaiwl of s')me. one
of several trespassers, a witness who was present at the time of the
killini;. stated, on his exnmiiiiition in chief, tliiit the deren<l;int then
beini;- trieil, during the tr;msaetii>n called tla; deeeased "a son of a
V)itcli." On cross-examination till! witness was iiskecl it in bis I'drmer
oxamintition he bad made any such st;ilemeiit ns that. On objeclidii,
the court Ix'low lielil that tlie in(|iiirv should be limited to tli<' (piestions
actually asked and the answers L;ivi'n in the former ev:iiiiin;it inn. and
that tlie ipiestion was improper, llcid. (Iiat the rule laid down by tlie
court wiis rather sti'inj;-ent. The iii()iiiry mii^bt well be made, with the
view to as •> rtain the motive of the witness in omittiii.L;- the stat<'meiit
on his examinalion in chief, in i'a.se it should turn out Ik; had done so.

Id.

40. Hearsay. — On the ipiestion ns to the identification of t!ie body of

the person alle.i^cil to have been niin'dered. it is not competent |o
show by till' siirp'oii who niiide the paxl-niorfeiii examiintioii of the
body of a corpse cliiimed by th" prosecution to b<> that of the mnrdeivd
l)erson. that the body was iilentitied to him by anotner. lltmt v.
Utah, ■ 4ir

41. Em'kut Ti'sTHfONY NOT ADMissiULE, ETC. — Oil the tri;il of Mil indictment

under tlie clause of the Penal Code which makes the sellinij,', loiuiiiin',
giviii^,' away or showiiij;- of an obscene or indecent book, svritiny;, pict-

INDEX.

633

Ure or photo,iji-ap1i a inisflemennor, tlio qupstion of ohsi-otiity or indo-
coiicv is one tluit lalls witliiii tlu> vaii;j;(' i)f onliiiarv iiit('lli;4<'ii(X', and
docs not rcipiiro tlie toHtiiuouy of an oxnert in litoratni-i- ov art. Tlie
People r. Midler, ioi

43. Samk. — On tlio trial of an inilictinpiit for scllin?;; ol>srpne and indocpnt
j)li()to<^raphs, the dcfundant callcil as a witness an artist, and askod liim
wlu^tlior tlioro is a distin,i;iiisliin,t!; line, as under^^tood l)y artisis, Ix'twi-en
pare anil oliswno and indeceiit art. This was oiijecteil to and exelndeil.
JTild, no error. If the (inestion was intended simply to l)rin.Lj ont the
fact tliat pictnrosnii.s^iit l)c citiier decent or indecent, aiid tliat tiic<-anons
of [>nre art wonld accept tlioso of on(! class and reject the others, it was
jiroperly rejecteil as an attempt to prove a self-evident jiroposition: hut
if the (piestion was intende I (o he followed hy proof that, according;' to
tlie artist's standard, the ]»hotoj;'raplis were not oiisceiie or indecent, it
was [)roporly rejected, assncli proof was incoinpctont. It was liivcwiso
licid that the intent of tli(> defendant in selhn;j; the photoj^'raphs waa
iioi an element in det;'i'mininK his f^uilt, and thai therefore ovidenco of
intent wius ineoni])i'tent. Id.

43. SkcoXIIAUY EVIDEXllK III'.LD INCOMPKTKNT TO SHOW DEFENDANT TI.VD NO

I'KKMrr. — In a criminal prosecution aicainst a <lefendant for sellinj^ in-
toxicating; liipiors wiiiiout takinu; ont or liavinu; a [lermit, the county
attoriK'V testilied tliat h(^ was acquainted with t!ie, prohati; jud.ije of tho
county; that lie understood Ik; was absent from home; tiiat tiie book
wiiicii lie pi-odnced was th;' Jonrnal of permits kept by the prohato
,ind<;(>; that it contained all thedrnuiijists' iieniiits issued l)y the probate
,iudj;e; that Ik^ had looked into the other joiu'nals kept by the pn)-
l)a(e judj;e, and had been unalile to linl any record of ])ermit.i therein;
that lie had fre(|uently heard the iirobab^ jnd.i^e testify in lii|nor cases
that all of the records of permits were kept in the book produicil by
liim; that the jirobate jud'.ve had another Journal in which lu; kept .1
record of the business of iiis court; that lie went into t!u> ollice of tin*
])rohat(! Judji'e and ^ot the book when the .judj>'e was not there: that
there were other jonrtiais in his ollice : that the book containe(l nothin<;
l)ut blanks for recordin;; dru'4';-ists' ](ermits. aii(l tlu'renpon, a.u;aiiist tho
objection of the defendant, the court periiiitti' I such book or journal of
permits to bo introduced in evidence. jIlJU error. Tlic State V. Vank.

485

44. Te^T1:\IONY OE witness not excluded RErAl'SE n^NTRADtrTED IN PAKT. —

It is not error to refuse to exclude the whole ti'stimony of a witness
from tile case, because parts of his evidence are contradicted by other
witnesses. Olifcr v. The Slide, ').\i

45. SED'.i'TKIN — SOCIAE ATTKNTHiNS nut Sl-EKICIENT C'OliRO!U)I{ATI0N. — In

a trial for sedii'tioii under pr uniMf of iiiarria.ni", evidence of such so-
cial attentions on the part of the defemlant to the prosecutrix, !us
nccompaiiyinii' Ikv from elinrch, caliinn' on her ;il lite house of her par-
ents, and I here wait inn' on her now and i hen fur two vcars. is not snlli-
fi«nl to conolioiale the prmeciitriv'^. testimony to the eifcct that a
|>o>mi-.e of marria.;!' was made to her, and will not warrant tho Jnry
in lindint;' that Vact in the altirmative. Rier r. Cimi., r)02

4t5. CoNTlMTioN OK l>i".l'i',Nl)A\T.— Where there is testimony chat the tlefend-
aiil called on th" pro-\cntrix' ■ mother and expressed i-ontrition for wliat
lie had done, and deflai'cd his willinuiiess at the same time to inako
amends by innrr> iiii;- the prosei-iitriv altera time, such te-t iinonv in not
e\iilence from which a jury could safely tuid a iirevions ])iM'iiisc to
marry. Id.

47. Wiiimoi.DlNti Ti:sTiMONV \\\ iMto.-M t TiciN.— Failure on the part of (h,.
pvoM'ciition tocidi thefatherv>r the proseciitilv. who was pr<'seiit at the
eoiivcrsatioii. loii'>tity to iiarticnlars thereof, was a circiiiiistani'e which
Would have jtistili • I ao inrerciice nnl'a\ orahle to tli'' prosrcntion, and
tlieioiirl Would !ia\(b''n warranted so to iiist'-uct the jnry Id.

G31

AMEKICAN CnnilXAL REPORTS.

i.3. Sr\Tr:Mr-NT to Tiimo rnn'^ON. — Tratimonyof a convorsntlon h'^twnon
t!io (luit'jidait anil a tliiivl i)L'r.;i)!i, in tin) cimrso of wliidi tlio d.-roMljiiit
uaiil, i.i roiViviico to tlu; iiuiIUt in li;i;itl, iW.ii " lio vv.nil.l };ivi' (','00 t)
f:otUo it, iiii I no inorj; tint liu w.is guilty of th3 criuu," w.u not (svi-
dwico of a proniiHu of inarriajo. Id,

A"). U.v::'3MM-jNic\TE:)Tim';.\T.^Ar)5iis5inT,'5u:fD-j:ncE!irAiNCiu?rijnTANC?.'5.—
In a tri:il for li(vni(;ivlo, wIi.t,' tlu (^ii > itia.i is u< t ) w'.\ it w u ilo -.vLij I'.-i
uttitii le at tho tinnj of thu fat'il eiiLvnintcr, voL'ont tlnvat) may bu -oniu
ivlok'a.it to s'lUiw tliat tliis attitu 11* wai o:\.' hostile t » tli.' iL'icnlant.
even t'lou j;li sir-li tlinvit.-t WlTo not coininirnral.u I to (U-foadarit. Tlio
eviilunuj is not rolcva it t> show tli.; <fto aninit of tlio <lyrca'laiit, Imt it
ni'iy l)Li ivkivant to show th it, at th ■ tini." of t!iu in '.'tin;^, thj tloooai;.' 1
was sj,;:;ing (h;f(mJaat'rf lifo. Wijjina v. The Pcoi>lc, 41)1

CD. Rap;!. — Proii-.-utrix may bo iiitjriMjitj 1 ai to \\>x ohJL':!t in p;oin.; t:)
tlu plajL' wilier J t!i3 ra;).> wa.i alio pi tj lia/objjn cj.u.ulltjJ. Tlia
State V. Ilartnctt, " 07i

CI. IlJiiUNO AN'O wi;';; — STATr^nDNT or wik:', in pn7.-',2Mc;H o? iiUinANi) —
Aa.Ml-i-ilo.N'. — U.);):it'i;.' trial or" ajiriso it forfi^loaiouily roL'oivin\;st.>lo:i
pro,i;Tty, a list of tiie st )K':i a"ti::lts waicli t'.u jn'iso.usr, wlio w.u a
marine stoiv dcalpr, ha I b >ii v'>t. ^^'i-* r.'V'ivol in cvLU-ac!! in or.IiT
to •il'.o.v th itli;' lia;l l)i>u ;ht t scaiat a'.i nailer v.iluc. Tli ^ciicainstaaeea
u 1 lor wiiieli tlie list was Wi'itl.' i \\\:\\' as follows: A [inlicj coastaUlo
nslvc 1 t!iL' i>ris;)aer txio i-iiil -r wliea h > In 1 b.m^ht th.) st )!ea prajK-rty,
to wliieh tiK' prisoaor i\' ;)li(vl tint his wife sh;)iil I m I'vo oat a list of it,
aa 1 oa t!r.' next day tlr.) i>r'sii "/'s wif<', in Inr liinb la I's pr.>;'a',!.
haade 1 1 ) an )lluT coastabk- tlr.' list t.'nleri,' I inovideace, siyi:i:^ in her
hin'-iaail's liearin ', " T ais is a list of what Wis Ikhi 'iit, aa I wint wa

Ravo lor t.ieai.

a.! ([iie-.tioa r.

1 w

1 i w 1 !t.i ir

sn -h list VV.13

l)ro;K>vly a Imitte I in evi leacL-. ILid, that thcj list w.is dearly a Imis-
dble. Tlic Que ■!> v. ]iJ<illofj,

C2. FonuoN' iN'.':>;i:' :>:!\Ti')N' ji^vm s'i;)'.v:i nv iNm

■T fa'i1)::n':

■U:

th;> trial of ail inlictauat, t;!iar ;in'^ fov^ery ia Ihe sL'.;-oa:l de;^r<

:)»

III

m ilcin.:

a'l

1 ea'ir:

of a plat • in t!ie form a a 1 similitii le of a

ni't • of a lianl; itirorporate 1 in Havana, nader the laws of Sjiain,
wti3;ioi b_^h I'f ol' t'l !'»:•)! >;a!;i ) » tMlili'lt'nt k; in 1 b.va at l!

ill II ivaiia an.l saw basiuiss earrie 1 oa tlr.-re: that th.

oaa i If

•u 'J

note-, wiiich wer

'ive las in ) lev: t'nt he saw t!ie;irtir!(Mof a -.sa ria-

tioa, aa 1 fraai t!r' n, ;i 1 1 w'l it In saw in a new.

, tlu' oHi -ial orrai

of the pioveriimeat. In b.'liev.il th > baa'; wa-i in-oraorate 1 u i ler t'lJ

»f S;

);im.

a e;i vrav.

<'oaii.' -te 1 with the Aai -rieaa D v.x'.i Noli

C ampaiiy, also testili;,' 1 that ho ea;:;ravod the i)lates from wlii'h tin

Keauine notes weiv; ))rinte 1. an 1 that they

th •!! in th > vault i of

tliat coaiaaiiy. //'/'/, tint th' (!vi It

wa* sulli -iv-at to e.;t ihlish t'n

lo.Jjal oxii teneo of the bank. The l\'oplc c. D'Arjeimoiii; 2VJ

C3. Ctvii. PJtvc'Trcc A'.t not AP:'i,ir',\nr.^.— The provisio!is of the Cado of
Civil Proet! lure, in lAin'ciertiii ■ 1 copii's of th;> re 'or Is of forei ra eouti-

trio

dunce,

applicable.

ind ia\'.;eribiir.; the ii

laaaer of autlieat;e:ilioa, a;'.; iii>t

CI. A

1 1 is. nnil'M" no law cat 'tie 1 to a conrn's^ion to ta'ce thi' t;' ■timany

of witaeises residin,.; in aiiota;!r state. The Slate (\ Fidj'ord,

;:3

AaoRTioN, other attemats to com nit may be shown, 3. Admiwio?!^ an.t
C;)Ni<\'w;ioN's. Adi-'LTKUT, nroaf of oth-a-aets inadmissiule, !J. Aii^ori,

inativo !iny bo show;

li.l JKZ-^i.HMUNT, variounu-ts of. !). B.UAMY,

proof of first iinrria !,e, ct-., 2, ;5. 1?.!IUK,UV, othur actj of, 5. I.MMA-

TERIAL AvEini!:.Nr,

Dbioui):i;iLY llou.;::, 1.

EXPERTS.
Eeo Evn)::NCE, '24. 2."), ','(}, ::7, 41, 4.0. 0;;s(;i:ne LiTRnATUiiE, 1, S.

INDEX.

C35

)in'j; to

. TUc,

07J

: 111 iicr

lit \V>)
st WW
a liiiis-

530

EirTRADITION.
1. rrjso::r,n can ee 'rrjT:D o:;[,y roi? rii;-, ovvii,:

.v.o,,...,.. ^,.., i,^ ......^ >...... .>.,. ...r, v,ii-^.,.„. Foil WinCII EXTKADITED.

A jK-rsan cxtnuiite.I iin Icr llii- pmvisioMsof tlio tn-atyof 18k'. Iwtwoen
tlu' Ullit.^l Stiit.'s till 1 (!/i';it Di'itJiin, trie 1. cojivicto I iui:l ssiMit'nciMl for
tlic crime n;)();i v/iiicli lu- w.is i'x(»m lit '.1, (■.■innot l):Mlct:iiii;' I in ciisto.ly
an I prosi'ciiti' 1 for a (lilf-'iv' it crini • tli;i;i tlie o;n; siKviti.'.l in tliu war-
rant of t'xtnulition. State r. Vandrrpool, SO;!

2. Con ^Tii'j ;'Ti(>N ov tu :i vr v.— U.i k-r tli-j c;i)-,iHtitutio:i of tlio Unite 1 Stato:%
tlic |nv)visio;is of tliis trc.ity nw. part of tlio law of tlic iaml, ciiforc -jihlo
by tlie jihlicial tribnniils ia bjlialf of a pjr.iDH :«) clL'taiiiuJ uuJ prose-
c'liteil. /(/.

0. Pl.!^.>. TO JUr.ISDI?TION' — T'.LTVIAI. AT^UV.-iT IX l'On''i:JN COUNTIIV. — To .in

iii'lictiiioit for (Mnl)i'Z/,lc:ii',':it an;l huv'ony tlie<k'fi'nilaiit |)lfa,k'(l to tlio
jurisliction of the ivmrt. in siil)st;inc(.', tliat tlio pr>'siili'!it of the UnltoJ
States. u;)OTi t'l;; writt.'ii r^'in^'stof tlio j:;ov('riior of this state, issuoJ an
fxtrailitioii warrant I > th:' <;-.)veriini.,'at of IVru for the surroa.lor oE
tlie ilelViHlait. nailer t!ie tiv'aty with that ^'overnnieiit, to be brou.'^lit
baelv to tills eouatry on a ehar,-;(' of huveny ; t'lat on the same day tliia
warrant was issiit^l, the se 'r.'tary of state niaik' a written repiest upon
tlie Unit:' I States eoasiil aetiii'^ at Lima, to procure tlu? executive of
Peru to surrender the ilefeailaat to o:w .Jalian. U!i ler saiil treaty; that
no re |U '.4 wa-i vwn- m.i ie by said c;)n>ial, or by JuUan, or by any
otiier person, u;)'>:i any of the authoritie i of t'la jj;.>vernm(>nt of Peru
for the siirreiiiier of (lelV i lant. nor was any consent or authority
given liyaiy of the autliorities or avents of Pern, to Julian or to .any
other person, to ai'rest an 1 reni,>ve defendant from Peru; atul tliat
Oil A;iril !>. ISS !, wliile t'le di'fen ia:it was domicile 1 at Lima, in Peru,
Julian, witli the aid of per«)ns whose nam -s were unlcnown, without
nny authority or warrant Irom the aatlioritie s ov diplom.atic a.';,ents of
Pv-ru. arreste 1 the defendait. and foreed liini to;,;o tot'alhio, and there
place. 1 him on bo;ird ii, vi'ssel and cairied him to Ifonolulu. and at
that port liansferre 1 him to anotlier vessel which carrie.l him to !Jan
Francisco, California, where he was iirresteil on a re|uisitioa from

a I broiu'at to t!iis state for trial. Tlio

le irovi'rnor ol

lis slat;

court below siHlaine 1 a de;imrrer t() tliis |)Iea. Held, tliat the do-

luu

•rer w.is projjcrly suslaiae.l. Kcr v. Tlie Peo;>!e,

211

4. Os iu:gi"isiTi(iN, uiaHM.AiMrv ov auu^wt not oim'.n to question. —

:> I

lerson cliai

' 1 with (a'ime in this stat;

arreste 1 in a

Bister •Stat ■ an 1 bran.^lit here for trial, on a re niisition of the ;;overnor
of this state, it was licld that our courts, on tli ■ trial o'i such fugitive,
would not in(|uiri' into t'le re,j;ularity of his arrest ;ind surn-nder in such
sister state, an 1 tint it di I n )t m itt a- if he ha 1 bv-n illej; lUy arrestJ.l

111 a Corel

111 country and broicdit forcibly ta sueli sister stati

Id.

r». FiTfirnvi'. I'uoM .nsririo — Ij/Ujamty of aukest not a qukstiox for
Till", cornTs. — Wilt re le,^a! steps have been talcen for theaiiprehension
and return tothis country of a fu,.;itive from Justice, and he is brou'^ht
bacli to tile United Slates, where he is arrest(>d on a requisition of tlio
exetaitive of this state and liroir^^ht here for trial, the fact that he may
lia\" been ille;,;ally arreste 1 in such foreisu country and ltrou'-;lit to the
Unii '1 Stales does not deprive the courts of this state of jurisdiction
to tr.> him for any olfense cliarj;ed :i;:;aiiist him, the state not beinsj; a
party lo su;di illegal arrest and abduetion. Id.

C. LKIIAUTY of AHllKST OF A Fl'UrnVI'; FROM .Il'STIC'K IN A FOllKION CO'JN-
TUY NOT NK( KSSAUY To (IIVK ((HIIT .IlIJISniCTlON. — The lulc Sit COIU-

nion law is, that the court trvin,^ a party for crime committed within
>t invent ii;at(.' the manner of his capture in a for-

its Juris liction wi

ei^^n state or country, thou ;li his ca;)tiire and return may have beei

jilaiiily without a' •liority of law,
7. Right of asym'm to flumtivk fi;om .h stic

Id.

A fuj:;ilive from Jus-

tice hiu no asylum in a forci'^n country when he is guilty of an t>lfen.ie

630

AMERICAN CRIMINAL REPORTS.

for whioli lio is liabln or subject to extradition, by treaty between thin
ariil the forci;;!! t;ovevmneni. If he is ille^allv and forcibly removed
from sueli fori'l^n country, that country ulono has cause of comphiint,
and ho cannot comphiin for it. Id,

8. ExTRAnrnoN of FUdrnvES depends on treaty. — Where no treaty

exists Itetwccn two governments for tiie extradition of criminals ttei'in;^
from justice, there is no obligation existing that can bo insisted upon
to surnniler them for trial to the government from which they havo
tied; but as a matter of comity between friendly nations, yreat olfend-
ers are usually sin-rendered on request of the government claiming tho
right to punisli them. Id,

9. FUCJITIVE, WHEN EXTRADITED, MUST BE TRIED ONLY FOR TIIE CRIMES

NAMED IN TREATY. — Where u fugitive from justice has been brought
back to the country from which he has lied, dh a warraut of extradi-
tion in conformity with tiie terms of a treaty existing between two
governmeats, he cannot be iirocceded against or tried for any other
otfeiisi's than those mentioned in the treaty, and for which he wa.s ex-
tradited, without lirst btung atfordeil an opportunity of returning.
But tills doctrine has no ap|)lication where tlie tu,^itive has been
brought back forcibly, antl not under the terms of the treaty, or under
an extradition warrant. Id,

10. The COURT has no po\vi:r to reviiow decision of maoistrate on
GROUND IT IS AOAINST WEiOHT OF EviDiCNCE. — Upon an apjilication for
a hiihcan corpKs in the case of a fu_citive criminal comnntted Ity a \k>-
lice magistrate, under the extradition act, the court has no power
to review the decision of the magistrate on tlie ground that it wa.S
against tlu; weiglit of tlie evidence laid bet'nn,' him, there l)eing sulli-
cient evidence before him to give him jurisdiction in the mattiir, Tlie
Qticeii, V. Muiircr, OaS

FALSE PRETENSES.

1. False puktexse — Promise to perform some act in the future. —

A false pri'ti'use, to be within the statute, nmst be the assertion of an
existing fact, not a promise to perform some act in the future. Coin.,
V. Ahiove, 230

2. Indictment. — The jiarticular act alleged in the indictment was the pro-

curing of tile pi'osecutors indorsement of the del'endaul's )>ri>missory
noti\ and the false pretense charged consistecl \n the dele-nlaiit repre-
senting to the ))roserutur tliat he would use tht; note soir»t)rsed to take
11]) anil cano-1 aimtlier note of the same amount then abi iit maturing,
and ui)on which the |)rose<-iilor was liable as indorser, and for no other
purpose, and the indictment charged that tiie defend mt. instead of
using it for this purpose, as he pretended he would, used the same for
liisown private jan'i)ose. Ilclil. that the indictment did not set out an
indictabh; false pretense under the statute. Id,

8. Constructive larceny. — Bv jiroviso of section 111 of the act of ]\Iarch
31. IHliOd'. L.,41(t. Pennsylvania), it is provided "that if, upon the trial
of any p.Tsoii indicted for such a misdemeanor (false pretenses), it shall
bejiroved that he obtained tlu' iiroperty in (luestion in such manner as
to amount in law to larceny, he shall not, by reason thereof, be entitled
to be aiMpiitted of such misdemeanor,"' etc. IJcltl, tiiat the distinc-
tion between the offenses of constructive larceny and cheating by I'also
pretenses is clearly delined, and as neither of the counts in the indict-
ment would sustain a charge of larceny, the defendant could not lio
convicted of that olFense. Id,

4. An indictment for obtaining goods under false pretenses can bo main-
tained against oni; who sells and conveys land for a price, by falsely
rejiresenting it to be free from incumbi-anees and the title thereto i)er-
fect. when the land is in fact incumbered with a mortgage known to
the defendant. State v. Miniduy, 2;)4

INDEX.

n;]7

^on tin's
oniovod
iipliiint,
Id.

tri'fity
< rtwiiig

■y liiivo
olFc'i id-
ling tho
Id.

ATE ON

tion for

)y a pi)-

powor

it was

ly blllli-

)r. The
f.«8

5. Venur — Pr,ACR OP tiual.— TI. wrnto and posted at N.. In England, a
k'tter addressi'd to (}., at a |>laco out of England, rontninin<; a falf-e
pri'tonse, by means of wliicli he frandulciitlv iiidurod (J. to transmit
to N. a flraft for 150/., wliirli lie there oaslied. Hfld, tlint there
Wius jurisdiction to try II, at N. ; tiiat tlie j)relei)se was made at N.,
where also the money obtained by means of it wjia received. Tlie
Qiteen i\ Holmes, 691

FINE AND IMPRISONMENT.

1. Fine and impihsonment — Costs — Jl'D(Iment for.— Relator was con-

victc:l of an ass;iult. The court iinijused a fine of !?5()0. taxn 1 the costs
at s:{()().5(), and ordered njlator tol)e imprisoned, as by statute provided,
for tlic lino. Held, that section 4(i of the a<'t coneenung cnmes and
Iiunishment (1 Comp. L., ;.';i.V.>) autb(n-ized tla; imposition of the fine,
and section 074 of the criminal practice art (id., 221)9) authorized the
judgment for costs. Staie of \efuda v. District Court, 236

2. JUDfiMENT — IIow ENFOiHEi).— Relator could be imprisoned for the fine.

TJie judgment for costs can be enforced only by e.vecution. Id.

8. Alternative i'unisiimext — Fine or imprisonment, or both. — When
a statute jmivides an alternative jainishment for an olfense, and further
provides that the Jury, in rendering a verdict of guilty, shall " fix the
degree of punishment to be inflicted, itidcss tlie mime be Jixed by law,"
tho jury nmst be instructed and recjuired to lix the kind and extent of
the punishment within the limits prescribed by the law. Herron v.
The Com., 238

4. General verdict of guilty. — It Avas error for the court to receive a
general verdict of " guilty as charged in the indictment," and assess a
fine thereou. Id.

FORGERY.

1. Scienter must be alleoed. — An indictment alleging, in words of the

statute, that the defendant feloniously, and with intent to defraud, did
pa.ss, utler and publish a falsely made, fo'';;i-ii, counterfeited and altered
obligjitif)nof the United States, nmst further allege that the defendant
knew it to be false, forged, counterfeited and altered, or it is insuffi-
cient, even after verdict. United States v. Carll, 240

2. The existence of a foreign incorporation may be shown by indi-

rect EVIDENCE. — U|)on the trial of an indictment, charging forgery
in the second degree, in the making and engraving of a plate in the
form and similitude of a note; of a bank incor[Kwate(l in Havana, under
the laws of Spain, a witness on behalf of the prosecution testified that
he had been at the bank in Hav;..ia ami saw business carried cm there;
that the bank issued notes which were received as money; that he saw
the articles of a.ssociation. and from them, and what he saw in a new»-
paper, the ollicial organ of the government, he believed the bank was
incorporated under the laws of Si>ain. An engraver, connected with
the American Bank Note Company, also testified that he engraved the
plates from which the genuine notes were printed, and that they were
then in the vaults of that com|)any. Held, that tlu> evidence was suf-
ficient to establish the legal exi.steiice of the bank. The People V. UAr-
geueour, 240

8. The indictment chiU'ged that the note so alleged to have been forged was
" for the i>ayment of iifty eeiitaro.s.''' Held, that it was not necessary
to ileline the meaning of the wonl eeiduvos. Id.

4. Under the statute defining forgery in the second degree, the making and

engraving of an ludinishcd plate constitute the olfense. Id.

5. Want of aitiiouity of defendant to make the plate. — Testimony

that thegeiuiine plates of tho bank were engraved and retained by the

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038 AMERICAN CRIJIINAL IlL:i't>liTS.

Bank Noto Cumpnny. with the tt';.timony of tho ii';cnt of Iho l::ii»k in
tliis country tt'.nt .10 on(\ ox< o\.t sai<l t (iiiipnny, had been aulhdrizcd to
do any ('!i'j;raA'iiig for tlic hank, was siillificiit to cstalilii^li j-ir//utf fitcia
that the dcrciidant was not authorlzui to mako llio phiti'. Id.

0. Not nec'e wauy to ATj-r,aE intkxt to D'lFr. aud. — As the ofTciif.o chavfjed
was coniiMittod hoforo tlio l\'Ui\l C'odc wi'Ut into cfu'ct, it was not essen-
tial to cIiarp;o in tlio iudiitnioiit an iiitont on Iho jiart of doloadant to
defraud sinne individual or corporation. Id.

7. Waive::. — As;;uniin;v tliat tlio ])rovisio!^n of tlio Penal Code, ('efinin}?

for/^ery in the second (h>;;Tee, were ai);ili(:ihk', as tlie Code of Criiniiial
Procedure re;(uires such <iut stion to be raiso I l)y niei 'on h(;fori! or iit t lio
time defendant was called for Ju Iitment, hy failiii;.; so to jireient it tho
ri;^ht to object was waived, and del'eai'.ar.t could net avail hiniLiilf of it
upon upijoal. Id.

8. Brevity and u:cn'r.TAiNTY 01^ Foi:n:'n ixst;:ument no rau to convic-

tion. — For fort^inj; an instrur.iejit in tiiei^(^ tonus : " (!(» )rfre, let the b( y
have !?2 worth of wliat he wants," an indi< t meat will li(>; the other con-
etituents of for,i;erv concuriinj;, th(» brevity and uncertainty of this
instrument will not ju'cvent a conviction. Such ]a;i('r was not inad-
miuaible iu evidence on .account of unceilaiiily. Bnr.'.c v. Tie btnlr,

679

FORMER ACQUITTAL, ETC.

Sco AcTrir:Fo:3 Acquit — Autrefois Convut. Jziopahdy. Jueisdiction.

Lauleny, 8-1!:.

FORNICATION.

A conviction for, may Lc Buataiuod under an indictment fcr ecduction.
Ui(M V. Com., . GG:)

FRAUDULENT PACKIITG OF COTTON.

Not NrcERSAUY TO SHOW conct^ai.mi^nt ov si:n?;TANCE mixed ■mTiT the
COITON. — A [)cnal statute, which provide) tliat "a.iy person wl o
fnuidulently packs or bales any c< Iton by platinij, or otherwise," is vio-
lateil when persons, who j:;in cotton for toll, witli intent to delraud the
owner or the imrchaser thereof, mix sand ur other sui)stanc(>s with tho
cotton; nor is it necessary to slmw a concealment of the sand or other
bubi-tances in order to ni;d;o out the ofu'iiKo. Uuiiid ct ul. v. tStutc, !J17

8co Indictment, and 7.

OAMINO.

1. Oamino — NAViOAr.T.E STREAM NOT A iiioiiwAY. — A navif^ahlc rtrcam IS
not a /t?V///(Crtv within the meaning of the statute against gannny (Code
of Alubiuna, sec. -i'M::). DicWi/ v. The .SUilv, 121t»

8. JunisDK'TtoN OVER NAViciAiu.E STREAM. — The I'lavinR liaviuR been !'n
the middle of the river dixiiliii;; two counties. 1 he coiutj of either couni y
hail jurisdiction of the olfense under the statutea. id.

INDEX.

G30

G^tAND JUR0R3.

I?:TOXTr.\TiO!J or" cnANn JCRon.— An iiuliclincnt will not Ic abatod or
quiisluul Iccauso one or nioro of the yrnnd jury wore intoxicated wliilo
it was under consideration. Allen f. The l^tate, 253

S.VM3 — C )NriiOL OJ" CTJKT ov;;;^ — A Rranl jurjr in not under the con-
trol of the court, like a petit jury is, wliile considering of its verdict,
and sliould not be so judged. Id,

A grand juror cannot be comjielled to disclose liow lie or any other juror
vtited ujon an indii^tnicnl, but le may Ic re<juircd to give the te^t!-
mouy of a particular witness. Ex iniite Sontci'j, 5:23

HABEAS CORPUO.

1, Uahcait corpva lies v.here the jctitioner is confined tinder the judgmoTit

ol a court eutereil when such court had no juris.liction. Gcirccifn
Vase, 2.>4

2. Samk — Veudict — JurxniKNT — T!r:TniAT., — A verdict is the b.^si;', of V.\o

judgment, a-d when the hitter is reverted because the law uoes net
autliorize tl f.,ruu'r, both are kI aside and areuf no ellVtt; ,|iiilgnicnfc
for murder Ijcing reverseil an<l tlii' (au.se remajided for lurther \ n i I'cd-
ings, the <■< int ( annot, tijon Mich verdict fcr murder, enter jtidgment
for niaiisla»ighter without a retrial of the cause. One so conviete I may
be released from the i)eniteatiary on habeas corpus, ttad remanded to
the cujto.ly of the sherilf to aw.iit trial. Id,

8. Power of Fnor.RAL couiitr — Statu ciuminal statute.— The circuit
court of iIm! United States may issue tiie writ of habeas corpus upon
tlu? a|>plication of any j.erson who is imjirisoned in violation of tho
constitution, or of any law or tre;ity of the United States; and if a
person b(> imprisoncul under a state statute which is ia coullict with
either, that court haj power to discharge him. In reDi'usiiahaii,Ji:. iO

4. JuiusnicTio.v. — The federal courts have no jurisdiction to discharge a
prisoner held under a state statute, n\)im the ground that such staluto
IS in violation of the constitution of the state, or in excess of the ])ow-
crs which the people of tiie sl;\tt' have conferred on th(>ir legisl.iture.
If it <loes not violate the federal constitution, tho question is for tho
state courts. Id.

C. Ukviewin!} ro'.VEii oy Tiin sui'U"/ii3 cdviit 07 t:ie Uxiteo State? in
ucinunal case, on a writ of halieas eoi'iiiis, is restricted to the consid-
eration and determination' of the ([pestion whether the court which
pa.ssi'd seiitenct! upon the prisoner hai! jurisdiction to try hii;i tor tho
oil'ense I'orwliich he was indicted and to] ass sentence of imi)risonine!it
upon him. There is no geiuu-al jiowcr vested iu the su|)reiiie court
to review the judgments of the iid'i rior courts of tlie United Stiites in
criniinal cases, whether bv tho use of the writ of ha'was cuipiis or
otherwise. Ex parte Wilson, Cyj

0. Where a party is held under ])roce.->s issued upon anv final judgment of a
court of competent jurisdiction, the iiuiuiry in litihcas eor/nis is liiiiited
to the validity of the judgment, or to llie ipiestion whether it is stayed
or lijus spent its force; mere irregularities will not justify a discharge.
In re nolfs, 440

7. The c:>uut iia; no powkti to u'Iview P/Ionion o7 maotstuath on
OKOUNU IT IS AGAINST WEIGHT (>/ E.vii)i:NCE.— Upon an a^»i)hcation
for a liabeas corpus in the case of a fugitive criminal committiHl by a
police magistrate, uniler the extradition act, the court has no |)ower to
review tin; decision of the magistrate on the ground that it was against
the weight of tluM'videniv laid before him, there being iulllcient evi-
denie before him to give him jurisdiction in the tuuttcr. The Queen v.
Maurer, 583

640

AMERICAN CRIMINAL REPORTS.

HUSBAND AND WIFE.
See Arson, 3. Bigamy, 2. Evidence, 14, 15, 51. Larceny, 17.

IMPRISONMENT.

Imprisonment for fine and cost. — In all our penal legislation the word
" imjjiisonment " means iuiprisoninent in the county jail or local i)rison,
unless expressed to be in the penitentiary; and the statutes providing
for the imprisonment of a defendant until tlie fine and costs be paid
refer to misdemeanors and not to felonies; and a defendant convicted
of a felony and sentenced to the penitentiary for a tixetl term, and the
payment of a fine and costy, cannot be continued in jirison after tlia
expiration of sjiid term by reason of the non-payment of the fine and
costs, either iu the penitentiary or county jail. Cheaney v. The State,

See Sentence, 3.

INCEST.

A brother-in-law and sister-in-law are nearer of kin by affinity than cous-
ins, witliin tlie meaning of tlie statute prescribing the punishment of
incest. Steivart v. The State, 271

INDECENT EXPOSURE.

1. The crime of indecent exiM)sure is committed if a person intentionally

makes such exposure in tlie view of the windows of two neigliboriiig
dwelling-houses. Van Houten v. State, '212

2, It is not necessary that any person sliould actually see such exjiosme. if

it was made in a public! place witli the intent that it sliould be seen, and
persons were there who could have seen if they had looked. Id.

INDECENT LETTER TO FEMALE.

An averment in an indictment that the defendant "unlawfully, wilfully
and wantonly sent " an indecent letter to a fem.ale is not suHicieMl to
show an offense under a statute whi<li makes it a misdemeanor ' wil-
fully and wantonly" to send such a letter to a female, without lawful
purpose in sending the same. State v. Smith, 275

INDICTMENT.

that the offense may judicially aj)|>ear to the court,
to charge a conclusion of law. Slate v. Graham,

1. Must alleoe the facts, not a conclusion op law.— An indictment
must allege the sjiecial matter of the whole fact with such certaiiity

It is not sulliciiiit
376

2. ClIAUOINO OFFENWK IN LAXOUAOE OF TUF. STATUTE.— It is fillfricieilt. ilS

a general rule, to charge a statutory offense in the words of the stat-
ute; I'lit when a more jiarticular .statement of the facts is necessary to
soi. it forth with recjuisite certainty, they must be averred. I<1,

8. An indictment for st'Uing Ii(|u<)r within three miles of Evening Shade
College must aver that tlie sale was not for medii-al purposes by a reg-
ular jaacticing |)hysi(iaii, who had made and recorded the afhdavit
required by the act. State v. Scarlett, 278

4. Not indorskd true mix. — An indictment will not lie qnaHhed on the
ground of its not being indorsed as a "true bill," or signed by the fore-
man of the grauil jury. .S7(r/f' r. Ma;/nith, 279

6. Referkino to tiiikd I'KitsoN AS UNKNOWN.— At common law. incases
where an indictment ri'iVrred to third parties as jiersoiis to the grand
jury unknown, if, upon the trial, it was uuwle to appear that the grand

lilMiiiMtt

INDEX.

C41

iiirj'diil know the names of the persons referred to. the accused would
liavo to be ac(iuitted on the ground of a variance between the allega-
tions of the indictment and tlie proofs. But it was not necessary for
the state to i)rov(! the truth of the allegation beyond a reasonable
doubt. Onlhrie v. The State, 78

6. Gfnekic ou technical terms— "Words generally understood amono

THE PEOPLE. — Wliere a statute creating an offense declares tlu.t it
may be coirniitted l)y certain specified acts or means, "or otherwise,"
the acts " otlierwise" or different from those specified must be alle;j;ed
in siicli a manner as to enable the court to determine from the inilict-
ment whether or not they constitute an offense. Daniel et al. v. State,

247

7. Same. — In alleging the acts assumed to be criminal, they should be set

forth in unainl)iguous words, understood oy court and jiiry and by the
people generally; not in slang words or •u garisms, or words use(l in a
technical sense in some i)articular employment or biisiness, but in
words belonging to the plain and proper language of the community.

I'd.

8. Wilful, deliberate and premeditated — Malice aforetiiouijiit. —

In reviewing an indictment for murder, held, that charging the
homicide to have been with "malice aforethought" is tantamount
to an averment that the act was " wilful, deliberate and premeditated."
State V. Iling, 375

0. MriinER — Statutory form — Deliberately, etc.— An indictment
cbarging murder, in the lang'tage of sec. 45 (New Jersey) of the
criminal ])r(K'edure act, is constitutional and legal, and sufficiently
sots forth the nature and cause of tlie accusation without the use of
the word.s with "deliberation and premeditation." Graves v. The
State, 380

10. What it must show. — Although the Alabama statute has dispensed

with many of the allegatitms essential to an indictment for ])er,)ury
at common law, it is still neci^ssary, in addition to the general aver-
iiiciit of aufhority in the court or officer to administer the oath,
to set forth tlie substance of the proceedin.'^s, that it may distinctly aj)-
pear the ojitii was not extra-judicial, that it was taken on an occa-
sion, in reference to a fact material, and before a court or officer
liaving ])ower to adminisfer it. An indictment which does not set
forth enough of the proceedings to disclose these facts is insufficient
under tlu; statute. Jacul}s c. State, 405

11. Misnomer- Names of parties to proceedings in which the false

oath was taken. — The names of the j)arties to the imjceedings in
which the false oath was alleged to have been taken ai-e essential to
its identity, and, if incorrectly stated, the variance is fatal to the prose-
cuti<m. Id.

12. Descriition of the stolen property. — Where in an indictment the

stolen jn-ojierty is described as " sundry bank-bi!'/-, issued on the au-
tliority of the United States, usually known as ' greenbacks,' amounting
in all to tlie sum of $589," such description is not sutlicient to supjjort
the indictaient, or enable the jury to<letermine that the stolen chattels
are the siune as referred to in the indictment. Tiie immber, kind and
denomination of the bills ought to be given, or a good and sufficient
excuse for not doing so set forth in tlie indictment. Teviitory v.
Shijtley, 4U1

Less offense included in greater, Ganjs Case, 354.

Abortion, 2. Hioamy, indictment in language of statute, 1. Bribery, not
bad for uncertainty, 1, 2. BrimLAiiY, n<»t bad for duplicity, 5. Cor-
ruption in Office, 1, 3, 3. Embezzlement, 10. For<ierv, 1, 3. In-
decent liETTER to Female. Infamous Crime. Lost indictment, see
Practice. 5. Placing names of additional witnesses on, see Practice,
1, 2, 3. Copy of indictment and list of jurors, see Practice, 18. Ke-

SISTINU AN OFFICEK.

Vol. IV— 41

642

AMERICAN CRDIINAL REPORTS.

mm-r

^■■■.r

INFAMOUS CRIME.

1. Information or indictment.— The provision of the Revised Rtatutoa of
the United States authorizing certain offenses to be prosecutod l)y in-
dictment or by information, does not prechide the prosecution, by infor-
mation, of other offenses of such a grmle as may 1h3 so prosecuted
consistently with the constitution and laws of the United States. Ex
parte Wilson, 283

3. Record of conviction.— ITie omission of the record to state that there

was no suitable penitentiary within the state is no ground for discharR-
ing the prisoner on habeas corpus. Id.

8. Same. — A certified copy of the record of conviction, if valid upon its
face, is sufficient to authorize the keeper of the prison to hold the pris-
oner without any waiTant or mittimus. Id.

4. Infamous crime. — A crime punishable by imprisonment for a term of

years at hard lalxir is an infamous crime withm tlie meaning of tlie fifth
amendment to tlie constitution, and a person sentenced to such inipris-
onme-.it without having been ])resented or indicted by a grand jury is
entitled to bo discharged on habeas corpus. Id.

INFANTS.

1. Infants under eiohteen years. — The Revised Statutes of ^rissonri,

wliidi exemi)ts infants under eigliteen years, who commit crime, from
imprisonment in the ])enitentiary, does not exempt them from tlte
dciith penalty. The State v. Adtiins, 'YJi

2. Between the ages of seven and fourteen years, the law presunu>s an in-

fant incajiable of committing crime, and the onus is on the state to
overcome tliis presuuiiition, wliicii the law supplies, by siitisfactoiy evi-
dence. Id.

INFORMATION.

1. An information is fatally defective which omits to allege that the olTcnso

was committed anterior to the day of the filing thereof, wlien tlu< stjit-
r.le rtM|uires that the time of the commission of the olfense should lie
so stated. Williams v. The State, 2[*2

2. WJU'u the irs'ition of an unn('<'essary word in an . fomintion does not

tend to the prejudice of the defendant, and does not prejudice tlie in-
formation or tiie description of the olfense, it sliouhi lie disreganlcil.
People V. Flores, 485

Placing names of additional witnesses on, see Practice, 1, 2, 3.

INQUE.ST.

DESTRO'iayq DEAD DODY TO PUKVENT HOLDINO OF INQUEST THEREON.— It
is a misdemeanor to burn or otherwise dispose of a dcatl ImmIv with in-
tent thereby to prevent th(! holding upon such body of an iiitciidtil
coroner's inquest, and so to olstruct a coroner in tlie execution of liis
duty, in a ca.se where ihe incpiest is one which the coroner \\i\s jnrisdic-
tioii t > hold. A coroner luis jurisdiction to hold, and is jiistitied in
holding, an inquest, if he honestly iR-Iieves information which hn-i Ih'i'u
given to him to l)e true, which, if true, wouUlmalio it his duty to hold
such inquest. 27ie (^ueen r. Stephenson et al., 5U!{

INSANITY.

1. Insanity as a defense — The test of responsibiuty. — Where reason
and judgment are not overcome, but the person ihaiged with < rime at
the time retains tlu' jiower to cIkmisc between right and wniiig as to
the particular act tloiie, lie cannot escape responsibility for his acts
under tlie idea of insanity. Dunn i: The People, 0~

INDEX.

G43

2. So if, nt the time a deadly asaault is made, the person making the as-
sault knew that it was wrong to commit sucli an act, and liad tlie
iiower of mind to choose eitlier to do or not to do, and of controlling
his conduct, in accordance with such choice, he will be held amenable
to the law, although he was not entirely and perfectly sane. Id.

See Upntone v. The People, 895; Graves v. State, 380.

Murder, intoxication of person on trial for, maj be shown, 8.

uVs to insanity produced by intoxication, see Murder, 9, 10, 11, 12, 13.

INSTRUCTIONS.

1. Instruction presextino a party's theory.— On the trial of a party for

cons)»iracy, wlien the evidenie upon the material jjoints in the case is
contliiting, an instruction on the jiart of the accused, which fairly pre-
sents the law of the case on the theory contended for by him, ou<;;lit
not to lie refused, liaving a basis in the evidence on wliicli to rest.
Trask v. The People, 2i)i{

2. KiCASON'Anr.E noUDT. — In every crimiiial case the defendant is entitled to

an instruction as to reasonalile (Umbt: and it is error for the court to
rcliise it. no matter how clear the evidence may seem against him.
.S7((/t> V. aonce, (JS; The People v. Davis, 514

3. Di'.i'iNED. — A rea-..in:'ble doubt, as used in instructions in crimin.al trials,

is one iirisiiig from a candid and impartial investigation of all the evi-
dence, and .' uili as in the graver transactions of life would cause a
rciisonable ami prudent man to hesitate and pause. Dunn v. The Pcn-
2>l(\ ori

4. Same — Too many instructions.- On a trial upon an indictment for

an assault with intent to nuu'der, tlie court, for the defense, ^avo
eleven instructions as asked, and twelve others after modifying tliem,
iiud refused twenty-three. It was held that tiie rules of law applicable
I > till- case weiH' simple and i)l:iiM. iim! (liat the practice of incnmhiT-
ing the record with so many instructions was a vicious one, anil it
iiu,!;lit not to be enc(Uiraged. Id.

5. Sami: — In the language of the statute.— On a criminal trial an

ii.ht: action following the language of the statute, which declares tliat
ilruiilvcnness is no excuse for crime, is not eiToneous. Id,

6. If any part of a single instruction ought not to be given, the action of the

trial court in rejecting the whole will always be afflrmed. 'The People
V. Da via, 514

7. As TO form of verdict in criminal case — As ignoring the rkuit

to find for a lesskr offense — Duty of defense to ask a counter
INSTUUCTION. — All instruction given for the people on the trial of one
lor an assault with intent to murder, directing the jury as to Use lorm
(if their verdict in case of conviction, was objected to as error, inas-
nunh as the direction to lix the term the defendant sltould serve in
the penitentiary, if found ;uilty, ignoreil the right of the jury to liiid
liini guilty of a lesser ollensi'. Held, that while not concuri'iiig in siu'li
vit'W, if it were correct it was the duty of counsel for the defendant
to have asked an instruction that the jury might lind a verdict f<a'
an assault with a deadly wea|)on, etc., anil n!)t having done so, they
were hi no position to complain. Dunn v. The People, 53

8. Giving undue prominence to particular facts, and giving im-

proper CONSTRUCTION TO A LETTER. — Ou the li'ial of oiic for rect'iv-
ing, and also for aitling in concealing, stolen ])roiierty, an instruction
(lirecting the attt>iition of the jury to a |)articular part of the evidence,
and givuig it undue imi)ortance, and which also gives a construction
to a letter of the defendant not warranted by any correct reading.
ia proiierly refused. Campbell v. The People, 338

I?'*':.

G44

AMERICAN CRIMINAL REPORTS.

0. Same — SiioCLD be ArrucABLE to the case.— AUIioukIi an instruc-
tion contains a correct principle of law, yet if it has not the sli;j;lit('st
application to tlie facts of tlio ca^jo, ita refusal is proper. lil.

10. Op a reasonable dol'BT. — On the trial of one for murder, an iiiKtmc-

tion for the defense that the law in re}j;ard to rejusonable douht applies
with f?i'eater force to circunwtantial than to otlier classes of evidence,
is erroneous, and properly refused, Adams ct al. v. The I'voplc, ;j.")l

11. It is error in an instruction for the defense to sny that if the <'ircnni-

stances are cap.nble of l)einR explained on a theory consistc >t with the
innocence of the accused, the jury should accjuit. A theory niinlit lie
assumed that the testimony as to his ynilt was false, and on such a
theory there could be an explanation of the circumstances consistent
with his innot.ence. Jd.

12. And herein, of the policy that many guilty men sHorr^n escai-e

rather THAN ONE INNOl'ENT PERSON SHOULD SUFFER.— Oil the triid of

two persons uixm a charge of murder, the <U'fen<lants asketl the court
to instruct the jury that the i)olicy of the law is. that it is better that
ninety and nine, or any mnnber of Ruilty persons, should i-scaiie. than
that one innocent man should Ik? convicted, and that it is not suliicicnt
to authorize .a conviction that the >:n't">ter weight or pre])on(lerau<(' (if
evideiu-e sup|M)rts the allegations of the inrlictment, which the court
n fused to Kive. Held, that the instruction was properly ri liiscl. (luic
iK'infj no policy of the hiw on the subject, or for the cousiderntiun of
the jury; that it is not within the puri)ose of the law that any .:;>iilty
p»'rson shouhl escape or any iuuoi'eut one b«> convicti'd ; and that il' the
f^reati'r weight or i)re|i<>nilerance of the evidence Ik," such as to satisfy
the jury, iK'yond a rea.sonabie doubt, of the defendant's guilt, then it
would 1k! suflicient to authorize a conviction. /(/.

12. An instruction not reduced to writing must refer to AUTHOniTY.—

Where a statute reijuires instructions to be rediui'd to writiii;^ lielore
behi^c given by the .pulge to the jury, and provides that such iustruc-
tions shall be taken as jiart of the record and deemed subjectsof a|i|ieal,
tin? jtidgo cannot give an instruction not reduced to writing utlierwise
than by citing the ))age of the Inxik or law nuigazine whiiit e it is
taki'u. Ilopt V. The People, ;!(;,")

14. CuEDimLlTY OF WITNESSES.— In revi(>wing an instruction relative to tlie

crediiiility of a wituess jiiutly indicted with defemlaut, held, that tlu;
attention of the jury may be directed to the peculiar circuiii'-taiicis
surrounding any wittiess that are pro|)er to be considered in ilctirmiii-
ing the weight to lie attached to Ins testimony. Stiite t: Iliii'j, :i75

15. Stating ABSTRACT PUoi'osiTioN OF LAW.— The giving <if an ini-tiu(|i(in

stating an abstract principle of law not applitalile in a criuiiiial cape
is not error unless the lu'inciple stated is erroneous. Cj)stoiic r. The,
People, ;!!).-.

10. Same — Construed, as excluding defenskof insanity.— On the trial
of oiu.' for murder, insanity being relied on as an excuse, the court in-
structed the jury that if the killing had l)een shown by the evidence,
beyond a reasonable doubt, to have be«'n the act of the defendan'.. the
law i)resumes it nnirder, jirovided they further believe, fmrn the evi-
dence, that no circumstances existed excusijig or jtistifying the act. or
mitigating it so as to make it manslanghter. Jleld, that the instruc-
tion was not liable to the objection of excluding the defensi? or excuse
of insanity, but, on the contrary, it recognized the fact there might be
an excuse for the act. Jd.

17. And in the same ca.se, an instniction contained a proviso that if the jury
further believed, from the evidence, beyond a reasonable doubt, that
tiie blows were struck with mali<'e aforethought, either expr'ss or im-
plied, to ilnd the defendant guilty. Hehl, that the in.structiou did not
exclude the defense of insanity, wliicli, if it existed, would show .an
absence of malice aforethought. Jd.

INDEX.

645

18. WriETHKR SUFFICIENT AS A WHOLE.— It Ihmiir iniiirrirticalil(> ti roqniie
absolute, literal aceuriu-j' in iiiKtiuctions, it is therefore Huflleient it' the
instructions, eoiisiflerwl as a whole, sulistantially present the law of tie
cast? fairly to the jury. liitzman v. The People, 408

19.

20,

Murder — Degree of, to be found hy the jury.— Under a statute
which defines the ci-inie of nmrder and fixes the de^iees thereof, it is
error for the court to say, in its charge to the jury, tliat tlie olfcnHe, l.y
whomsoever couimitted, was that of murder in the lirst degree. Uopt
V. Utah, 417

Charge of the court to the effect that the accused was to be considered
innocent until proved guilty, and that if there was reasonahle dciibt.
and the disclosures did not satisfy the jurv of Ids guilt, they sliouhl
ac(iuit him, is suflicient. Oliver v. The State, i:):'0

Bribery, as to value of thing offered, 3.

INTENT.

Conspirators held responsible althouoh they did not intend to
COMMIT the particular CRIME. — When parties are engaged in the
eonunissiou of a crime with malicious intent, and in the exectition
tii(;reof perpetrate another criminal act not originally intended, the
unintended act derives its character from the intended' crime, and the
original malicious intent affects both acts. Stater. Vhiea et al, 290

Assault with Intent to ^Murder, 1, 2, 3, 11. Concealing Stolen Frop-
euty, 1. Cruelty to Animals, 3. Evidence, 1, 3, 43. Indecent
Exposure. Libel. Keceivino Stolen Goods.

INTOXICATING LIQUORS.

1. Intoxtcatino liquors — Pharmacists. — A statute which authorizes

pharmacists lawfidly registered to keep si)irituou8 licjuors ft)r c^om-
pojinding me<licines does not confer the right upon them to sell the
Ii(|nors to others over whom th(>v have no control, to be bj'them com-
pountled with medicines. State r. Brown, 21)9

2. Single sale.— Under the "Malt Li(iuors Act," approved Ajn-il 4, 1873

(l{ev., p. 4!(4, ij 13,New Jersey), a single sale of any of the li(|Uors men-
tioned without license makes the seller liable to indictment as keeper
of a disorderly house. State v. Fay, 300

3. Construction of license law with reference to charter. — The

act is operative throughout the state except in townships, cities and iu-
ocriMmited towns, where laws are in force regulating the sale of such
li(juors outside of inns and taverns. Id,

4. Same — " PROiiir.iTiON "' — " Regulation."- Authority corfen-ed upon a

town to prohibit all traffic in or sale of intoxicating drinks, with au-
thority to license, regidate or orohibit inns or taverns, held, not to em-
brace authority to regulate tlie sale of li(iuor8 outside of inns and
taverns. Id,

5. The act of April 12, 1875 (Pennsylvania), prohibiting the sale of liciuor

on Sunilay, and ])r()vi(ling a penalty by fine, does not repeal, by im])li(a-
tio'i, the jnior act of February 2(), iH.")5, prohibiting the sale of li<jUor on
Sunday, and providing a i)eiialty by line and imprisonment. Si/red r.
Com., 304

fi. Repeal by implication of a prior statute by a later one. Id.

7. Sale by theoallon — Delfvery in parcels.— At trial of indictment
fomiiled t)n a statute jn'ohibiting the sale of li(|uor by retail in t|uaiitities
less than one gallon, the jiuy asked of the court the question : " As a
distiller, lias the defendant a right to sell one galhm of li(|Uor, and
receive pay therefor, and deliver it in less quantities at different times i" "

640

AMERICAN CRIMINAL REPORTS.

To wliioh the jury received for answer, " Tlie court doth instnict the
jury that, to constitute a sale by tlie unJlon, there must be a sah> and
delivery t«) tJie buyer of an entire Kiill*Jn; that a contract for a gallon,
and the delivery of the same in parcelH at different times, is a violiition
of the law. Held: The instruction correctly expounded the law. Sales
of li(]Uor, in the mode suggested in the (juestion of the jury, would ht)
mere shifts to violate the btatute. Eichardsun v. Com., 479

Secondary evidenck held incompetent to show defendant had no
PEitMiT. — In a criminal prosecution against a del'enilant f»>r selling in-
toxicating li(|tior8 without taking out or having a ju'rmit, the countj'
attorney testified that he was ac(|uainted with tlie jirobate judge of tiio
county; that he understtKxl he waa absent from home; tliat the book
which he i>r<Mluced Wiw the journal of ]terinits kept by the prolmte
ju(lg(>; that it contained all the dnij^gists' ix'rmils issued by the Jiroliate
judge; that he had looked into the other journals kept by tlu- pro-
bate judge, and had been unable to find any record of j)eiiiiits tiici. in;
thiit lie had freijuently heard the probate judge? testify in liipKir cases
that all of the records of nerniits were kejjf in the b-iok produced by
him; that the probate juoge lia<l another journal in which he kept a
n-cord of the business of his court; that he went into the oflite of (li(»
]»robate juilge and got the lH)ok when tlu? judge was not tin re; tli;it
there were other journals in his oflice; that the book contained iintli-
ing but blanks for recording druggists' permits, and thereupon, against
the objection of the defendant, tlie court permitted such lK»ok or Juin-
nal of permits to be introiluced in evidence, livid error. Tlic Stuti'
1". Cook, 4»5

See Indictment, 3.

JEOPARDY.

1. Where, after the impaneling and swearing of a jury, it is ascertained tli.it

a juror is incoiiipt'teiit to act as such on account of not being a trcc-
liolder or a iKuiseholder, and the accused refuses to object to the jiinir,
and the<'ourt thereupon, of its own motion, discharges the jury, tlie :ic-
ciised has lieen once in jeopardy and should lie released. Aduiiis r.
The State, :«)«

2. After the jury in a criminal case was sworn the prosecuting .attorney was

allowed a peremptory challenge, and a new juror being clioseii. the jury
was again sworn. Jlcld, that so long as tlu^ jury first sworn wjis not
legally dischargeil. there could not be two juries sworn to try the siiiiie
case: and aconviction by tlu' latter jury was nut a.siile and the prisoner
discharged. The People r. Dohiii, JS'W

8. A jieremptory challenge is not allowable in a crimin.al case after the jury
has lieen sworn. Id.

4. A defendant acipiitted of a misdemeanor punishable by fine only niiiy,

U])on siitHcient grounds, upon motion of the state, be iigaiii put on
trial, without any violation of the constitutional jirovision against put-
ting one twice in jeoiiardv of life or limb for the same ollense. Toiiloi'
V. The State, ' 'M

5. Less offense inoU'DED in niiEATER. — An indif-tment for niunler was

found by the gi'and jury. Afterward an act of the legislature was
jiassed, without a saving ilanse, which rendered it illegal to conviit
the accused of the crime of murder, but did not affect the law as to
the ])unisliment for manslaughter. Held, that, under that indictnieiit,
the prisoner might be tried for the latter offense. t/a>'ir//.s Case, 254

6. Same.— The fact that the a<'cused hail lK>en tried under such indictnieiit,

convicted of murder, and juilgnieiit jironounced ujiim the verdict, which
juilgment was reversed because of error in entering the same (the law
having bwn bo modified as to forbid the judgment), will not warrant
liis discharge on the gi'ound of former jeopjmly >vhen subseiiuently
tried for manslaughter on the Hume indictment. Id,

INDEX.

C47

Plea of arii-TY whrn no complaint is made no bar to pkosecution.—
A j)arty kniiwinp; liiinsolf guilty of a misdemeanor, who bocomi-a h\a
own prosecutor, selects his own judge, confesses his guilt, and submits
to a judgment entered iipon such a confession, cannot eseaiw i^rosecution
in the aitpointed mode by jdeading a former conviction brougiit about
under sucli circumstances — such judgment of conviction is a nullity,
Drake v. The State, 320.

Autrefois A pquit — Autrefois Convict.
KismcTioN. Lakceny, 8-11.

Justice of the Peace. Ju-

JUDGE.

Authority op judoe not to be questioned by private party.— In
the exercise of his i)ul)lic judicial functions the lawful autliority of a
judt^e cannot Im? (luestioned by a private person. The attorney-general,
acting on belialf of the state, can alone question, by a writ of (jtio mtr-
ran to, his constitutional right to exercise his judicial functions.
C'ui/le V. Com., 379

JUDICIAL NOTICE.

Courts take judicial notice of the day of the week a certain day of the
montli came on. Hubiiison v. State, 5W

Courts will not take judicial notice of ordinance, see Perjury, 4.

JURISDICTION.

1. Abduction. — I f a person abducts and carries away a woman child within

tlu- statutory age, with intent to seduce, etc., from one state to another,
he may be indicted and convicted in the latter state, if it be shown
tbat he iiiti'r|)os('d his will or jwrsuasion between her and her guard-
<liair.s coiiln)!, wliile in the latter state, so as to overcome her inten-
tion to return to her home. State l\ Gordon, 1

Federal Ei-f,ction. — Commission of crime by United States officer, see
Election.

2. Jurisdiction over navigable stream. — Gaming at cards in a fen-y-boat

in tlie mid<lle of the river dividing two counties, the courts of either
couiitv have iuris<liction of the offense under the statutes of Alabama.
Dickey V. Ttie State, 249

8. Justice ok the peace — Has no jurisdiction until a complaint is
filed. — The power conferred (m justices of the peace to hear and deter-
mim; pro.secutions for misdemeanors cannot Ije quickened into activity
until a complaint is m.ade — until a case is pxesented he camiot exercise
juristliction. Di^atce r. Tlte State, 320

Justices of the Peace. False Pretenses, 5. Larceny, 8.

JURORS.

1. Under code practice, as formerly, juror must declaub on oaxH that
HIS verdict will not be influenced by preconceived opinion. —
Under Code of Criminal Procedure (New York), a man who has formed or
expressed an opinit)n in reft^rence to the guilt or innocence of the defend-
ant is still, as formerly, disqualified to sit as a juror, unless he declares
on oath that he believes such opinion will not influence his verdict, and
that he can render an impartial verdict in accordance with the evidence.
It is not sufticient to suppose merely that he can determine the case
according to the evidence, or that his opinion ought not to influence his
verdict. Tlie People v. Casey, 313

648

ASIERICAN CRIMINAL REPORTS.

¥i 1

S'i'

2. Sasie. — Unon tho trial of an indirtniont for munlor, a man <'u11i'(1 ns a

juror, anu clialleiigod for biiw, tcvstilieil that he had fornied and fxincssfd
an o]iinion as to the priHoner's ^uilt ; that he HUppoM^l ]ie would iuivi> to
detennino the case aocorduig to the evidonoo, and woiiM hiiv<.' to jro
according to tlio witnessoH, but that lie ntill had an opinion whidi wnnM
go with liini into tho jury box, and tliis he t-ould notK^'t out of" iiin mind ;
that lie oould not lit-Ip it ; and that it nii^j^ht aMsist in inthunuunj^ his mt-
dic't. To a cjuostion as to whether he would Kive Ids verdift in acconlaiici'
' with the toHtimony of the witneHses, he did not rej'ly, Tlu' (•lia!icn>,'e
was overruled, tield, error ; and that the juix>r waifdisijualiiiiHl. JU.

3. Samk. — Another juror teotifled that he ha<l heanl and read about tiic <a.se,

and had fonniHl and ex|)ressed an opinion and Ktill held it. IIo was tin ii
asked if, notwithstanding; such ojnnion, lie coidd sit Jks a juror and dctcr-
mine the case ujjon the evidence. To this ho answeit"*!, " Well, 1 sh|)-
pose I could." lleld, that this was not a responsive answer, and tliat
the jui'or was incompetent. Id.

4. Same. — Another juror stated tliat he hatl formed and express*^! and still

entertained an opinion, and tliat he would ^o into the jury box, if
accepted, with a prejudice in his mind, which it would rcMiuin- evidence
to remove. IIo was tJ-.en asked it' the imitrossion he luul woultl ill all
shajjc or influence his venlict. nciiiiswered, " Well, I woiddnoiiccord-
inn to the evi<lence." He was a.sked aj^ain if, a])art from the cvidciice,
his previously formed imja-essioii or ))rejudiie would aid at alt in shap-
ing and forming his verdict. He answered, " Well, I don't know tlial it
would." He vjus then asked, "Are you sure that it would not?" He
answered, " No, I am not sure about that." Held, that it was error to
oveniile the chalh>nge. Id.

5. Same. — Another juror who declanMl that ho had formed, expressed, and

still held an opinion, was aski!<l if, notwithstanding this, he could, as a
juror, determine the case lU'cording to the evidence. He answered,
" Yes, I 8upiK)8e I could." The challenge was overruled. i/cW, error.

Id.

6. Same. — All of said jurors, after tho court had ruled that lliey were coni-

lietent, were challenged jieremptorilv and t'xcluded from the panel. It
api)eared that iMifore t he jury was fully impiuieled all of the peremptory
challenges alloweil defendant by law were exhausted. Held, that as by
the erroneous rulings he was obliged to use his i)eremi)tory challenges,
and was thus <leprive<l of the- right to challenge other jurors, he was
injured, and was entitletl to a reversal. Jd,

7. The allr)wance of a challenge for implied bias is not the subject of an

exception. Sttde v. Hiny, ;]T">

8. GeNEUAL or particular cause of CHAI-I.ENOE — OlNSCIKNTIOUS f)I'IN-

lONs. — A juror was excusetl upon the ground that he entertained such
conscientious opinions concerning capital i)unishment as would pre-
clude his finding defendant guilty of iui otf(>nse punishable with death.
llel<f that the objetition to tlie juror did not go to the gem lal cause of
challenge, that he was disqualified from serving in any cas<\ but to the
particular cause, that he was disiiualitied from serving in the ciise on
trial. /(/.

9. Opinion of juror formed from iiearino report of crime. — A juror

who hiis formed tui opinion upon hearing an undisputed report ol a
crime, but the opinion was such a <»ne as wouUl Ik* changed by the state-
ment of any credible ixn-son, has not tho unciualitied bidief and con-
viction that woidd disqualify him froiu acting iuipartiiUly as a juror.
People V. O'Limghlin, i>42

10, Defendants tried jointly entitled to but singij? challenoe.—
Where several defendants are tried jointly for a crime, having waived
their right to separate trials, they are only entitled to challenge jointly,
and may have the same number of challenges as if it were u single de-
fendant being tried. Id.

INDEX.

G40

11. WrrRV NEW TRUTi •WlMi BK GRANTED BY RKASOX OF MISTAKE OP .lUROB
AS TO HIS QUALIKICATIOXS. — Wlioi'o a iiiiui pivsoiits liimHelf in court in
olK3(liuiico t() a Hununoiis ruijuirinj^ liini to appear as a juror, and istatoH
thiit lui is a c'itizon of tlie United States, and the defendant has no reason
to doulit the trutli of tlie stateuient, the riyht to a jury of twelve litizi'iia
of the United States is not waived by an examination of the innposed
juror toucliinK his other iiualitieations. If, after verdiet, the defenchuit
learns that the juror was mistaken, and tiiat lie v.-as not a eitlzi'ii of
the United States, he is entitled to a new trial, it noi ;i,)peariun that
there w;us any nej;ligence on the part of the defendant tiial would work
a waiver of the constitutional rijj;ht to a projier jurv. A defendant has
the rif^lit to ])resume that none hut the uani(>s of ( ilizens of the United
States are ui»on the list from which jurors are di iwn, i\'o>jj/c i\ Hccse
and others, 537

JURY.

1. Drawing of jury. — The jury act of 1877 (act 135 of 1877, Michigan) re-
<(uires the names of jurors to bo drawn in turn from separates parcels
cuiitiiining names from each precinct in the county. Tlure is also a pro-
vision for ord»'rin;c talesmen to bo drawn from a sinj^h; township whero
the emergencies of the term do not leave time for snmmonin};; tlu-ni
from tlie county at lar^e. Hut a jurv drawn three weeks before trial
for a particular case of homiciilo is illegal if taken from only part of
the townships in the county and those not .ailjoininj? the county seat
nor iiiLludinjj tho locality ot the olfense. The I'eoi^lc v. Hall, '3o7

3. Where tho jury is polled in a murder case, it is the duty of each juror
to answer for himself whether he finds tho prisoner guilty of murder
in th(> lirst de^reo or in the second decree Whero tho response of
each in such case is simply KW''ty without a designation of tho degree
of guilt, the verdict is a nullity. Williams v. Hie State, 4ir»

JUSTICE OF THE PEACE.

Justice of the peace — Has no jurisdiction until a complaint is
Fii.K.i). — The jiower conferred on justices of tho ])eace to hear and de-
termine prosecutions for misdemeanors cannot betpiickened intoactiv-
ily until a coiniilaint is made — until a case is presented ho cannot
exi'rcise jurisdiction. Drake v. Slate, 320

Pi.EA OF (iUII-TY WHEN NO COMPLAIN* IS MADE NO BAR TO PROSECU-
TION. — A party knowing himself guilty of a misdemeanor, who be-
coiiu's his own prosecutor, selects his own judge, ccmfesses his guilt,
ami submits to a judgment entered upon such a confession, cannot
escape |)rosecution in tiie appointed mt)do by pleading a former con-
viction brought about under such circumstances — such judgment of
conviction is a nullity. Id,

LARCENY.

1. PaUTIN'O VOLUNTARILY \VYXK POSSESSION AND TITLE. — If tllO Owner of

tlie goods alleged to have been stolen parts with both the possession
and tiie title to the goods to tho alleged thief, then neither the taking
uor the conversion is felonious. Murphy v. The People, 323

2. Otherwise when the owner intends that they shall be returned

TO HIM, ETC. — But if tho owuer parts with the possession volun-
tiirily, but d(X>s not part with the title, expecting and intending that
the goods shall bo returned to him, or that they shall be disposed of
on his account, in a i)artiiular way, as directed or agreed upon, for
liis bonellt, then tho gcMids may lie feloniously converted by tho bailee,
60 as to relate back aud make the taking and conversion a larceny.

Id.

650

AMERICAN CRIMINAL REPORTS.

-1 B-

8. A general owner of goods may be guilty of larceny in stealing such goods
from a special owner. Adams v. Hiate, 331

4. To constitute the crime of larceny in such cases, the taking must be

felonious. Id,

5. Name— Variance as to alleged ownership of property.— Ap-

pellants were convicted of the crime of grand larceny, for stoaliiig a
. horse and wagon, the alleged projierty of one Sang Hop. On the trial
of the case the owner of the property stolen testified that ho had two
n.ames — a business name and a ijereonal one. Held, that as the owner
of tlie pro^ierty was known by the name of Sang Hop, tliat nanio was
BufRcient, in legal proceedings, whether he had another name or not.
People V, Leong Qiiong, 'dH

6. Same, — The name of the owner of property stolen is not a material i)avt

of the offense cliarged. It is only reipiired to identify the transaction,
so that tiie defendant, by jjrojjor plea, may protect himself against an-
other prosecution for the same offense. Id.

7. Receiving stolen goods- Local jurisdiction op offenses — f:x-

ception to the rlTiE. — Under the constitution and laws of tliis
state, as at common law. the local jurisdiction of all offensrs is in
the county where the offense is conunitttHl. Tlie crime of larceny
is made an exception, and the offender mav lie tried in any county
to wiiich he carries the stolen ])roiHM'ty, or wfiero it may be fouml, its
well as in the county in which tlie property was first taken. Tiiis rule
has no ajiplication, however, to any crime other than larceny. The
offense of receiving stolen property, or aiding in its coiiceahncnt,
knowing it to have lx>en stolen, is not embraced in section 3!);$ of the
Criminal Ct)de (Illinois), and the i)erson must be tried in tlie county
where the offense was committed. Campbell v. The People, 338

8. Same — Former ACQUITTAL in another county, whether a rar to a

SECOND PRosKci'TiON. — The trial and ac(^uittal, in one county, of one
charged with receiving stolen goods, knowing tiiein to have lu'cn stolen,
is no l)ar to an indictnieiit for the same offense in a didcrcnt cnnnty,
unless it sliall apju'ar that tin; offense was committed in the cimnty in
which the ac(iuittal was had, so as to give tlie circuit court of that
county jurisdiction. An ac(|uittal of a crime by a court liaving no
jurisdiction is no bar to a proset.utioii for the same offense in a court
having jurisdiction. Id.

9. The general rule at common Jaw is, that an ac^juittal in one county can

onlj- be pleaded in the same county, for the reason that all indictments
are local; and if the first is laid in the wrong county, tiie defendant
cannot be found guilt}', and could not have l)een hi legal joopanly.
To this rule there are a few exi-eirtions, as, in larceny, and in case of a
change of venue, as in this state. Id.

10. Same — Former acquittal, to be a bar, stost have been in rksi-ei t

TO THE same identical OFFENSE — ANU THE PLEA MUST SO SHOW. —

To make a i>lea of a former acquittal or conviction a bar to a second
indictment, jtroof of the facts alleged in the second must be sullicicnt
in law to have warranted a conviction ujwm the first indictment of the
same offense charged in the second one, and not of a different offense;
and the plea must show that the ofTi'iiso chnrge<l in lM)th cases is the
same in law and in fact, and the (piestion must lie deterininiHl by the
facts apiiearing from the reconl, without the aid of extrinsic circuni-
Btances. Id.

11. Same— Op a plea of former acquittal — Its requisites.— A plea

of an acquittal of the same oflfeiise in a different county is defective,
in substance, if it fails to show that the c;ourt of sucli other comity
had in scmie legal way acquired jurisdictiim of tlie subjcM-t-matter, aiid
how such jurisdiction was ac(|uirod, as. by a change of venue, or, in
case of larceny, by the defendant having' taken the stolen property
into such county. Id.

INDEX.

651

12. Same — A plea srrsT jvsweb all it professes. — A special plea (as

a former aoc[uittal) to an indictment containing several counts, if it
fails to answer any one count, is bad on demun-er. Id.

13. Chattei.. — A iirintetl list of names and dates is a chattel, but not a

" writing containing evidence of any existing debt," witliin tlie statu-
tory definition of the subjects of larceny. State v. James, 348

14.

15.

16.

17.

18,

Value op cHATTEii. — Its value, as a statutory subject of larceny, in its
luarliet value. To be of tlie market value of §20 it mast be capable of
being sold for that sum at a fairly-conducted sale. Id.

Descriition op the stolen property.— Wliei-e in an indictment the
stoU'u projwrty is descrilied as " sundry banlt-bills, issued on the au-
thority of the United States, usually known as ' greenbacks,' amount-
ing in all to the sum of !J58!>," such description is not sufficient to
siippc^rt the indictment, or enable tlie jury to determine that tlie stolen
chatti'ls are the same referiH'il to in the indictment. Tlie munbcr, kind
and denomiiiation of the bills ought to l>e given, or a good and sutti-
cii'iit excuse for not domg so set forth in the indictment. Territory r.
ShqAcy, 491

Larceny by bailee. — A prison*!* was convicted of larceny under the
following circumstances : Tlie [irosecutor gave a mare of his into the
care of the prisoner, telling tiim that it w£js to be sold on the next
Wednesday. On the next WcHlnesda.y the prosecutor did not go him-
self to sell liis mare, but sent his wife, who went to where the prisoner
was and saw hun riding the mare about a horse fair, and sell her to
a third party, and receive on such sjvle some money. The ])rf)secu-
tor's wife, after such sale, asked tlie jn-isoner to give lier the mtmey,
saying she woubl pay liis expenses. Tliis the prisoiier decluiefl to do,
and eventually lie 'bsconde<l with the money and without iiccounting.
Ilcltl, by the court that tliere wiis evidence that the prisoner was a
bailee of the money thus jiaid to him, and that the conviction coulil
be supixnieil. llic Queen v. De Hanks, 001

Larceny by wiiti: of husband's property — Married woman's act.
UiM)n the trial of a married woman jointly with another person for
larceny of the jiroiMTty of her husband, the husband wsis c,alle<l as a
witness against his wife. Held, by the court that the evidence of
tiie husband was impr<)peiiy received, and that the conviction whicli
had taken place fouiuh'd upon it wjvs bad as against both the prisoners.
I'lte Queen r. Brittleton et ul., 605

Property procuped from another by a series op tricks. — The
two i)risonei's by a serit*s of tricks fraudulently induced a bar-maid to
l»ay over money of her ina.ster to them, witliout having received from
tliem in return the i)roper change. The bar-maid liaxl no authority to pay
over money without receiving the proi)er change, and had no intention
of or kiiowliMlge that she was so doing. //('/(/, that the prisoners were
l)roi)erly convicted of liuceny. I'he Queen v. Hollis, 609

19. "Watku stdkkd in pipes. — Water supplied by a water company to a
consumer, and standitig in his pipes, may be the subject of larceny
at common l^w. Feoms ct at. v. O'liricn, 611

Larceny from the Person. Distinction between robbery and larceny from
the jierson, see Robbery, 1.

LIBEL.

Privile(»es OF THE PRESS — GooD FAITH OP PUBLISHER. — In a criminal
prosecution for HIm'I, I'vidence was introduced tending to show that
the defendant, who was an elector of Chase county, Kansas, circulated
an article among the voters of such county containing some things tliiit
were untrue and derogatory to the character of the prosecuting wit-
ness, who was then a candidate for the oflice of county attorney of said

662

AIMERICAN CRIMINAL REPORTS.

county; held, that if the supposed libel: nis article was circulated only
among the voters of Chiisu county, and only for the i)ur[)ose of giving
what the defendant helieved to 6e truthful information, and only for
the purpose of enabling such voters to cast their Ijallots moie intelli-
gently, and the whole thing was done in good faith. — such article was
privileged, and the defendant should be ac(juitted, although the princi-
])a. matters contained in the article may li ive been untrue in fact, and
derogatory to the character of the prosecuting witness. IState v. Batch .

510

LICENSE.

Peddlkus. — An act which discriminates against the jmidiKts anil manu-
factures of other states, bj' requiring peddlers to obtain a license to
sell the same, is unconstitutional and void. State v. McUiunis, 'MS

Gee Intoxicating Liquoks.

MANSLAUGHTER.

KlLLTXfl OF OFFICKR — WaNT OF KNOWLKDCiE OF HIS OFFICIAL ('(lARACTF.U

RKULCES CRIME TO MAXSLAUOIITER. — A )R'ace otticer has tlie rigiit to
arrest one who is cnunitting a breach of the peace in his j)ri'si'iu-e, and
to use such force as is necessary to make it: ami if the person so dis-
turl ling the p^-ace knows that the ]ierson attempting tlie arrest is an
ofticer, and kills him. it is nuirder; if he does not know the fact, it is
manslaughter. Fleet wood i: Com., 30

See Murder, 17.

MITTIMUS.

See Commit.mf:,t.

MUNICIPAL CORPORATIONS.

1. The police judge of the city of Ijcavenworth lias exclusive jurisdiction

over all oifenses against the city ordinaiUMs, and the city has jiowcr to
]iunisU them by tine, imprisonment, or labor on the streets. In re
Jiotfx, no

2. There being no S])ecific provision in the charter of the city of T,eav(n-

worth concerning apjieals, where (he line is $20 or less, such rigid may
iHi found under the laws regul.'Vcing tlie proce<'diiigs in justices' courts
in criminal cases, anil the p'.titioner is entitled to his appeal in tliis
case uiK>n tiling a. proiK'r bond. Jii.

3. The a])peal being formally denied l)v the police ju<lge, the failure to fur-

nish the bond should not jirejudice the petitioner, if he sup[ily the
omission jn'omiitly. Jd.

4. Town ordinances must be sulM>rdinate to and h.armonize with the gen-

eral law of the state, ludess siiecial powi'is are conferred upon the town
by its charter. ISiate r. Brit tain, -I'ty

6. Then'fore, in the absence of special authoritv over .the subject, it von
held that an ordinance j)roliil)iting the sale of liipior within the corpo-
rate limits of a town is void, as tlie general law allows retailing ujion
obtaining license. Jd.

See Intoxicating Liquors, 3, 4.

MURDER.

1. What constitutes muroeh — Of the intent. — Intent to kill does not
enter into the definition of murder. It is enough if the unlawful
killing Ikj dona with mali(!o uforethought, either express or implieil.
Adams et at. v. The Peojjie, 851

INDEX.

2. Same.— If a party of men board a railwaj' car, and while the train is run-

ning draw (lofi'lly weapons on a pasHoii;;er, and make him hold up his
hands while they rob his person, and then by threats and intimidation
cause him to jump from the car door, thev commanding him to dc -o, and
lie is thereby killed, tliey will be guilty of nmrder. In sucli ease it is
not essential that death should be the probable and reasonable result of
the act the deceased is forced to do. It is sulHcient that deatli or great
bodily harm was the natural result. Forcing a person to do an act
which <auses his death renders the death the guilty deed of him who
compelled the deceased to do the act. Id,

3. Malice WHEN INFERRED.— Malice maybe inferred when an act unlaw-

ful in itself is done deliberately, and with intention of mischief or gieat
bodily harm to tiiose on whom it may chance to light, if death is <jcca-
sioned by it. By tlie statute, if an involuntary killing shall happen in
the commission of an unlawful act which in its consecpiences naturally
tends to destroy the life of a human being, or the act is connnitted in
the execution of a felonious intent, the offense is declaretl minder. Id.

4. Same. — In a prosecution for murder proof of malice alone has no tend-

eiicy to prove that death was caused by crime, until the fact of death
by criminal means has been shown; proof of malice may then become
relevant to show a motive. People v. Hall, 857

5. Degree of mi'RDER. — Murder by poisoning is murder in the first degi'ee,

and a jiuy should be so diarged where the information does not state
its degree or the mode of its commission ; and where a jury does not
find tliat a crime is in the first degree it is error for the judge' to punish
it as if it were. Id.

6. Onus on proseci-tion to show murder is in the first degree. — To

constitute the oifenseof murder in the first degi'ee, the killing must be
jwedetermined, and not under mojncntary impulse of passion; though
the detiriiiination need not liave existed anj' particular length of time.
Prima fitcie, all homicide is nuuxler in the second degree. Ohms on
l)rosecution to raise the ollense to the first degi'ee. McDaniel v. The
Cum., 369

7. What the record must show.— To sustain a verdict of murder in the

first degree, the record nuist show proof, diiect or inferential, sulficMcnt to
justify the jury in coming to the conclusion that the death of the de-
cciisfd was the ultimate result which the concurring will, deliberation
and premeilitation of the prisoner sought. Id.

8. Intoxication may he shown.— Where, under a statute fixing the de-

grees ot (lime in murder, and making provision tlui., wilful, deliberate,
malicious and ineineditated killing shall be murder in the first degree,
if it npp(-ar that the accns"d was intoxicated at the time of the killing,
it is permissilile to olfer testimony of that fact, leaving it for the jury
to determine whether his mind was in a condition capable of delib-
erate premeditation. Ilojyt v. PeojAe, 365

9. Same — Insanity produced by intoxication, as a defense.— Tempo-

i-ary insanity produced immediately by intoxication furnishes no
excuse for the commission of a homicide or other crime, but a fixed in-
Biuiity does. Upntone v. The People, 395

10. Same,. — Whether a party committing a crime is under the influence of

a fixed insanity, or a temporary one induced immediately by intoxica-
tion, is a question of fact for the jury, and their verdict will not be
disturbed unless it is clearly against the evidence. Id.

11. Same.— While it is true there must be a joint union of act and inten-

tion, or criminal negligence, to constitute a criminal offense, yet when
without intoxication the law will impute to the act a criminal intent, —
as, in the case of a wanton killing of another without pn)vocation, aoI-
untary drunkemiess is not availahle to disprove such intent, so as to re-
duce the crime from murder to manslaughter. Id,

654

AMERICAN CRIMINAL REPORTS.

!«'

iUl

■hiJiA^

l%]

12. Same. — Voluntary intoxication fumishcH no excuse for crime committed

under its influence, even if tlie intoxication is so extreme as to inuke
tlie author of tlie crime unconscious of what he is doinjj;, or to creiite a
temjwrary insanity. Id.

13. Sajie — Evidence of defendant's previodh habits of intoxication.—

On the trial of a defendant for murder, when insanity is set up in de-
fense, and he is shown to liave been intoxicated at the time of tlic
homicide, evidence of his previous intoxication will l)e proprly re-
ceived from the pr«»ecution, as bearing uiion the question of intoxica-
tioii at the time of the kjllin^, and of the conduct of the defeiidiint
while in that state. Id,

14. Insanity — When interposed as a defense.— The defense of insanity

must Ihj established by a preponderance of proof; and, in such case,
tlie burthen is not on the state to satisfy the jury of the sunity of tlic
jirisoner beyond a reasonable doubt. Gntvat c. iitute, tJKti

15. Infants inder eiohteen VEAIts.— Tlie Revised Statutes of !\Iiss(iuri,

whidi e.xemjit infants uiulor ei}j;hteen yearn, who commit crime, from
imprLsoument in the i)enitei;tiary, do not exempt them fr(jm the deatii
penalty. T/ie Utate v. Aiktms, ^ ;i!V.'

16. Between the ages of seven and fourteen years, the law presumes an in-

fant incapable of committing crime, and the otitis is on the state to
overcome this presumption, which the law supitlies, by satisfactory
evidence. Id.

17. Joint trf.spas."Ks — Enoouraoino commission of rsrAWFUL act. rk-

sultino in homiciue — Liabimtv for consequences.— Several iicrsons
of a party pa.ssing along a highway got out of tiie wagon in wiiich tiny
were traveling und went into an orciianl without permis.sion. Tlie
owner ordered them to leave, whicji tliey refused to do, when otlicrs
from the wagon '.'utered the orciiard. armed with cloils of dirt, and
assaulted the owner, using very offensive language to him, and one of
the 1 (arty struck the owner, with a clod, u|)on tlie liaclc part of the
jH'ck, (elling liini to tlie ground, from whicii blow death cnsiu'd in a
few minutes. It appeared tliat one of the intnuh'is, who was tried sep-
arately, took part in the alfiay, and tried to kick tlie ♦leccased wliile
lying prostrate from tlie blow. It was helil that it was not necessary
to sliowtluit he threw tiie missile wiiicii caused tlie death, in order lo
sustain his conviction for manslaughter. It was sulH ient that lie was
present, encouraging tlie perpetration of the oU'ense, to malu^ liim
e(|ually guilty with the jiinty who struck the fattd IjIow. Rilzinaii r.
Tlie People, 40:1

18. Principal and accessory— Evidence.— Upon the trial of B. as acces-

sory iR'fore the fa<t to tlie murd'.'r of II., evidence wius received as part
of C.'s testimony tending to prove tiic allegation of tlie indie tineiit
that V. murdere(l H., ancl for no other purpose: held, that jis its eom-
l(etency for tiiat purpose, and its iiicompeteiiey for any otin'r purpose,
were distinctly (h-clared l>y the court when it was received, tiicie was
no error. State v. Biizzelt, 410

19. Degree of, to be found by the .ivry.— Tender n statute winch de-

iines tlie crime of murder and fixes the degrees thereof, if is e.vor for
the court to say, in its cliarge to the .jury, tiiat tiie olVense. l>y wlioiii-
soever committed, was tliat of murder in tlie tirst degree, lloiit r.
Utah, 417

20. Same — POLLINO jury.— Where the jury is pcdled in a murder case, it

is the duty of each juror to say for iiiniself whether he linds the pris-
oner guilty of JUHrficr ut </icyt;'.s< or ne.eoiid detjree, Williunis r. Tin'

'Hate.

415

21. Each JUROU must designate DEOREE. — Where the resiH)nse of caeli juror
in such case is simjtly "guilty," without a designation of the degree of
guilt, such verdict is a nullity." And the fact that the clerk, imuiediatily

INDEX.

655

after polling the jury, called upon them to hearken to the verdict as the
court had recorded it — " your foreman saith that J. W., the prisoner at
the bar, is guilty of murder in tlie fii'st degree, and so say you all " —
does not affect the question. Id.

23. Indictment FOR — Wilful, deliberate and premeditated — Mauce
AFORETHOUGHT. — In reviewing an indictment for murder, held, that
cliarging the liomicide to liave been witli " malice aforethought " is
tantamount to an averment that the act was " wilful, deliberate and
premeditated." State v. Hing, 875

NEW TRIAL.

New trial granted when witness discovers that he was honestly
mistaken in his testimony as to certain material facts.— on the
trial of one for murder, the only evitlence connecting the accused with
tlie crime, wliich was committed in the city of Chicago, was tlie testi-
mony of a saloon-keeper of that city, who testified to facts and circum-
stances pointing very strongly towards liis guilt or participation in the
liomicide, no witness seeing the murder or identifying tlie party who
committed the act. Tlie prisoner denied all the material fa< ts m this
witness' testimony, and testified to l)eing absent in the country on tlie
night of tlie murder, wlien the saloon-keeper said lie was in his place of
business, about 10 or 13 o'clock, the accused stating that early in the
Diorning after tlie murder took place he boavdeu a freight train going
into tlie city, as it was moving slowly, and concealed liimself in a car,
the contents of wliich he described, to some extent. In this he was in
some measure corroborated bj- other witnesses as to the facts and cir-
cumstances detailed by him, and as to the contents of one of the cars on
that morning train, tlius presenting a question to the jury as to whose
story and version went true, or entitled to belief. To rebut the prison-
er's statement, witnesses were called who testified that the car doors on
such freight train were shut, and sealed with tin seals, which, on exam-
ination, after the arrival of the train in Cliicago. were found to indicate
no evidence of having been broken, the witnesses expressing the opinion
that the car could not have been entered without disturbing the seals so
as to Ik.' readily detected. The jurv found the accused guilty, thereby
giving no credit to his evidence. (3n motion for a new trial, affidavits
of several ])ersons were jiroduced, one of them being a witness who
had testified for the i«'ople, who, after experimenting with car doors
fastened and sealed as the cars on the train spoken of were, stated on
oath that they found that cnrs f istened the same as the one the accused
claimed to have entered coidd be opened and closed leaving the seals in
apparent good order, and without breaking or injuring the same, and
that they would so testify if a new trial should be granted. The facts
statiid in these affidavits were not contradicted, nor was anything pre-
seiiteil to break their force. Tiie court di'iiied the niotion for a new
trial. Itchl, that tlie court erred in refusing a new trial, in order that
the newly disct)vered evidence might be heard. Keenan v. The People,

484

VKltniCT AGAINST THE EVIDENCE. — Where one was convicted of an as-
sault on his wife with intent to kill and murder her, and the proof
was clear that the accused did shoot his 'vite, it was Iteld that the
question whether the shooting was an accident, or was intentional, was
a »|uestion of fact for the jury; and that when they have settled that
fact adversely to the defendant, without passion or pfejiidice, in accord-
ance with the evidence, it was not the province of tliis court to disturb
the verdict. Dunn v. Tin' reoplc, 53

Enti;uin(j juuv rooji. — The fact that a man was seen to enter, through
a window, a room in wliicii a jiuy had been sent to deliberate, without
jiniof that the jury were still in tlie room, will not invalidate a verdict
subsequently returned by the jury, where it is shown by the tcbtiniony

056

AMERICAN CRIMINAL REPORTS.

^S'-'

of the jurors tliat no person other than the jurors and bailiff entered
the room in wliicli the jury were actually confined during their delib-
erations. Hair v. The State, 127

4. Question of fact and of law. — Ordinarily, whether tliero is evidence

to warrant a conviction in u criminal case is a <|uesti<m for the jury,
the court taking care always to see that no manifest injustice has lu'en
done; but whether tlie verdict is contrary to the law, is a (juestion
for the court. Ker v. The People, 211

5. When verdict is aoaixst the law. — A verdict in a criminal case is

against the law when, admitting all the evidence ten«ls to prove, it
does nt)t show the crime chargetl. Id.

6. Much ciintion is used h.y the reviewing court in granting a new trial

whei-e it is asked solely on the ground that the vi'rdict is contrary to
evitlence, gi-eat weight being given to the verdict of the jiu'y. Mv-
Danicl r. The Com., 'MQ

7. Ignorance of disqualification of juror.— Where, in a crit iial pro-

ceeding, a man jtresents himself in coia't in obedience to a .-iiimuKms
reijuiring him to appear as a juror, and states that he is a <iti/.en of
the United States, and the defenihiiit has no reason to doubt tiie truth
of the statement, the riglit to a jury of twelve citizens of llu' United
Stati's is not waived by an examination of tlu' proiM)sed juior touch-
ing his other (jualiiications. If, after verdict, tiie defemlant learns
that the jiu'or was mistaken, and that he was not a citi/en of the
United States, he is entiti«'d to a new trial, it not ajipea'-iiig liiat there
was any negligence on tlie i)art of the defendant tliat would work a
waiver of the constitutional right to a i)roper jury. A (U'lendiiiit has
the right to presume tliat none luit tin' names of citizens of tlie United
States are upon the list from which jiu'ors are drawn. Vcoiilc v. liccse
et al., ' 527

See Practice, 1, 13, 14, lo, 19, 23. Sentence, 1.

NUISANCE.

1. Immaterial averment. — It is necessary to prove matter of iles'ription

only where the avermi'iit, of which the descriptive m;!tt t furnis a,
part, is material. Sintc r. Dame, 444

2. Same — Disorderly house — Ciiaracteu of those who rRi:<.>ui;NT it. —

The indictment i)eing for kee])ing a disorderly house, an a\erment
tiierein that "in tiie said house certain evil-disposed persons, as well
men as women of evil name, fame and convi rsation, to come l(i;;ctiier,"'
etc., is immaterial — might be rejected as surplusage, and it w;is, tiiere-
fore, unnecessary to prt)ve it. Id.

3. IIon-i'EN. — The keeping of a hof;-])en may be a nuisance, and as such .a

violation of the criminal law, and ijunishable under the ttatuti'. In
re Jiulfs, Petitioner, 440

OBSCENE LITERATURE

1. Expert testimony not admissiule, ¥.tc. — On the trial of an indict-

ment under the clause of tlie Penal Codewliich makes tin- selling,
loaning, giving away or showing of an obscene or indecent book, writ-
ing, jncture or photograph a misdemeanor, the (piestion of obscenity
or indecency is one that falls within the range of ordinary intelligence,
and does not require the testimony of an exjiert in literature or art.
TtiC People v. MuUcr, Ah'S

2. Same. — On the trial of an indictment for selling ol)seene and indecent

photogi'aphs, the defendant called as a witness an artist, and asked liim
wliether there is a «listinguishing line, as understood by artists, between
pure uud obBceue and iudeceut ai't. This was objected to uud vxcludeil.

INDEX.

ITcM, no error. If the question was intended Bimply to brinp; oiit the
fact that i)ii'tiiro9 might Ix! eitlier decjent or indecent, and that the
taiions of jmn! art would a^'cojjt those of oneclasH and reject the otliera.
it was jirojK'rly reje<-t<'d as an attenij)t to prove a self-evident i»ro|K)8i-
tion; hut if the (|Uestion was intended to l)e followed by prodf that,
accordiii}!; to the artist's standard, the photo^aphs were not olweene or
indecent, it was properly rejected, ixa such proof was incompetent. It
was likewise held that the intent of the defendant in sellinf? the pho-
tographs was iKit an element in determining his guilt, and that there-
fore evidence of intent was incomi»etent. Id.

OFFICER.
See Arrest. Bribery. Corruption in Office. Election. Man-

SLAUOHTER. UESISTINO AN OFFICER.

ORDINANCE.
See Municipal Corporations.
Coiu'ts cannot take cognizance of ordinance, see PEltlURY, 4,

PARDON

1 . Pardon by ooverxor. — The governor's ])ardon relieves the offender not
only of the jiunisliment ani\exed to the offense of which he was con-
victed, hut. also, of all jH'nalties and conseipiences, inclusive of the ad-
ditional ]iunishmeiit iin])osal)le. not hy reiison of the sentence for the
second olfensc alone, hut in conseijuence of that sentence and the sen-
tence in the former ciise. crcrpt, however, |M)Iitical disabilities growing
cmt of his conviction and sentence. Such pardon does not restore an
otlice forfeited, or rights that have Ix'come vested in others by reason
of till' conviction and sentence. Edirardx v. Com., 460

J. Statkmf.nt. — E. was convicted in corjioration court of D. of felony in
March. 1HH;{, and sentenced to <'oiihiienient in the iK'niteiitiarv. In
.Inly. 1HS!{. h(' was arraigned in the circuit court of Ricliinond, upon an
infonnation alleging that he had been before convicted and sen-
tem-eil for a like otfeiise. towit. in ibircli. 1H8I. He jileaded a full pai'-
don from the governor for the first olfense, granted in April, 1HH3. A
(h'lnurrer to this [tleawas sustained, an<l he was sentenced to a further
term of live years in the jienitentiary, under Code 1878, cli. l!).j, 2."). On
error, it wa.s held that, 1st. the govenior's jiardon having, in a legal
sense. blottc<l out the first tjtfeiise. it must be regarded as though it had
never been coininitted; 2d, that the demurrer to the plea should have
been ovi'rruled. Id.

PATENT LAWS.

1. Patentee not protected a(iainst violation op state laws.— The

sole object and jmrpose of the patent laws is to give to the inventor a
iiiono|ioly of what he has iliscovered. What is granted to him is the
exclusive right, not the abstract right; but the right in him to the
exclusion ol eveiybody else. He is not authorized by the ])atent laws
to nianul'acture and sell the patented article in violation of the laws of
the state. His enjoyment of the right may be modified by the exigen-
cies of the community to which lie bi^longs, and regulated by laws
wliich reii<!er it subservit>nt to the general welfare, if held subject to
state control. In re Bi-o.tmdian, 16

2. Patent — In what sense a contract.— A patent is a contract only as

iH'tween the parties to it, namely, the United States on one side and the
patentee on the other, and tlie rights conferred thereby can extend no
further than the right granted to the patentee under the patent laws.

Id.
See Constitutional Law, -1-14. Habeas Corpus, 3, 4.

^. Vol. IV — 42

(158

AMERICAN CRIMINAL REPORTS.

PERJURY.

1. False AFB'iDA\nT. — A plaintiff in an action of detinue, who is with-

out right or title whu-li will supimrt the action, and who wilfully
and corruptly swears falsely to an aflldavit of ownership, thereby i)ro-
curinj;; an order of seizure from thet)Hicer issuing the summons, — an
order the ollicer caimot withhold if the plaintitf also executes a proper
bond,— is Kui'tj' of legal i)t>rjury, Jacixys v. Stati', 465

2. Materiality op matter falsely sworn to.— An affidavit made at the

commencement or |)endingasuit to prtx-ure the exercise of some partic-
ular |M)\ve'.' from tlw* court, or fi-om some olHcer ther(Y)f charRed with
the exercise of |K)wer, ami which can exert no influence in any suhse-
(jueiit stiige of the ])roceedine:, constitutes indictable perjury, if the
matter falsely sworn to be materiitl to the point of incjuu-y at tlie time
it is made. Id

3. It is not SrKFKaEXT to show that nEKKNDANT MADE DIFFEltKNT

STATi'MKNTS. — In the trial on an indictment for per jury, to secure a
conviction it is not sufficient tt) prove that the defendant, at different
times, testified to two opposite things irrec()ncilai)le with each other.
Till ic must be testimony outside of his own contradictory statements
as to whicli of such statements is false. Freeman v. The State, 470

4. Ordinances must he proved. — Courts cannot take cognizance of the

ordiiianct's of an incf>rporated town. They are subJiHts of jiroof. In
an indictment for jicr jury, assigned ujxhi testimony given in a mayor's
court ivu the trial for a violiUion of a municipal ordinan(!e, the indict-
incJit should so ehai')<e it, iUid the evidejice should prove it. hi.

5. Denial of having been in PitisoN ls% if faksk. — Where a party ac-

cused of crime testifies on cross-t'xamination before a United States
connnissiorier that he had never been in prison, when thefiict was that
he had Imcu, such false answer amount.s to " material matter" within
the meaning of \i. S., sec. ."tliU:?, and Ls indictable. United Statett v.
Lamhsbenjy 474

PRACTICE.

1. The indorsement iton an infoiuiation, after going to trial, of the
names of additi<inal witnesses, is groun(l for a new trial, if done with-
out leave of court. Tlte People v. Movan. 47(i

3. Court jl\v permit names op additional witnesses to be plactcd on
information. — It is within the discretion of the court to permit the
niune of a witness, known to the jinxsi-cuting attorney at the tim(! of
the filing of the iid'ormation, to Im* indorse<l tlu-iijon after the conunence-
ment of the trial, and to pernut such witness to testify on the part of
the state in a criminal ynxiecutitut over ilefendant's obji!ction. The
State V. Cwk, 485

3. But the names of witnesses caimot. against objection, he wlded to the

information without a showing that they were not known earlier, and
in time to give defendant notice in seatujn to anticipate their presence
before trial. Pe.opCe v. Hall, 5<57

4. When the insertion of an iMiiKvessaiy ■\Tord in an information does not

tend to the prejudice of the defendant, and does not incjudice the in-
formation or the description of the offense, it should be disii'gtn'dcd.
Peojde V, Flores, 4K5

5. When an indictment Ls lost or mislaid, after arraignment of the ac-

cused, the tt)urt baa jMJwtn- to substitnto a <;oi»y and |)roc;e<>d to trial
upon the reconl thus made, the same as uiK>n the origmal indictment.
The State v. Steisiger, 4i*2

6. Presumed that defendant was arraigned, etc.— Where the record

does not disclose that tlie prisoner was arraigned and pleaded, the at-

INDEX.

C59

raij^nmont and plea will be presumed, iinlcas there be Homothing whicii
afHrniativoly shows tlieir ansenee. Territoru v. Shiphij, 491

7. Appeal and writ of ekkor— An appellate couut willdismish ap-

peal (>!<' escaped convict.— An nppollatu cimrt will i-L-fusc! to hour a
criiiiiiial fusn on a writ of error where the ])laintifr in error lias escaped
and is not witiiiu the control of tlie court below, either actually, by l»e-
inj; in custody, or constructively, by being out on bail. Wuudmn v.
The .State, 477

8. Same. — On amotion, where it ai)peared to the court that the plaintitF in

error had broken jail and escap(!d from custody, leaving iiis cause
pending in court: Ordered: Tliat the writ of error be dismissed at the
next term of tlie court, unless it is made to appear to the court on or
before that time tiiat the plaintiff in error is in the custody of the
proper ollicer of the law. Id.

ft. United States courts — Writ ob' error,— Section 3 of the act of con-
gress of June 2iJ, 1874, allows a writ of error from the supreme court
to the supreme court of tlie territory of Utah, in criminal Ciuses, when
t\w accused has l)een convicted of bigamy or jiolj'gamy. or has been
sentenced to deatli lor any crime. Wigginn v. The People, etc., 494

10.

II.

Certificate of division -
U. S. V. Hamilton,

\-i.

-Motion to quash — Discretion of court.

477

Generally — Plea in abatement. — A plea in abatement will not lie to
an indictment for that tlie court, if a suiticient numl)er of the jurors
suuuiioned are not in attendance, causes the reipiired nuud)er to be re-
turned from tlie coniitif at targe. Nor for that two or more of the
graiiil jury which found the indictment had served cm another gi'and
jury at tli(^ same term. How tliey voted <m tlie indictment as mem-

lU.

14.

15.

bcrsof tlie first gland jury could not proju'rly be in(}uired into. Nor
for tiiat the shi-rilf or his deputy were in the grand jury's room when
they wcredelilu'raUng and examining witnesses upon whose testimony
the hulictment wa« found. Jiiehardsoii v. Tlie (Jem., 479

DiSOnEDIENCE to RULE SEPARATING, RENDERS WITNESS OUILTY OF CON-

TEMlT, BUT NOT INCOMPETENT. — While We tliink it a sound rule of pra<>
tiee, in jaitting witnesses under the rule, to swear all of tluan on both
sides and seiul them out of hearing until i-alled to testify, still we know
of no law whicii renders a witness incomi)etent because he has heard
some of the testimony on the sid(s opposed to that «m which he wa«
called. It niigiit lie a ground to attach the witness, but not to excludes
him. Rookti v. The State, 483

Counsel must confine their arouments to the evidence.— Counsel, in
their arguments to the jury, are bound to keep within the limits of fair
and temjH'rate discussion of the evidence in the ciise. Any violation of
this rule entitles the adverse partv to an exception. State i\ Haiitietf,
'd'6; Campbell c. The People, ' 338

Prosecutor should not comment on failure of defendant to tes-
tify. — In a criminal action, where the prosecuting attorney, in making
his argument to tlie jury, claims that the defendant is guilty because he
failed to testify in tins case and deny the facts alleged against him, and
tlie defendant is afterwards found guilty by the jury, held, that for such
irregularity on the iiart of the prosecuting attorney, the defendant, on
Ids motion, should lie gi'anted a new trial, and that a mere instruction
from the court to the jury, that the jury should not pay any attention
to what was said by the prosecuting attorney with regard to the defend-
ant's failure to testify, is not suflk'ient to cure tlie error committed by
the prosecuting attorney. State v. Batch, 516

Same. — Ujion the trial of a defendant charged with a criminal offense
the latter rested without testifying. The state iiitro<hiced a witness and
offered to prove certain facts,' to whi(;li the defendant objcted as not
being proper i-ebuttol. Theremin the county a t torney said to the court,

it:

660 AMERICAN CRIMINAL REPORTS.

in the hearinR and jn't'senco of the jury : " Your Ilonor, we had a ripjlit
to prosunio tlmt tluMlvfondant woiild towtify iih a witiu'ss in )iiH own l)c-
hulf, in wliic'h cuho this cvidciico would hnvold'cnproiMT rt'tnittul, and,
lie haviii;; failed todo so, we claim the ri;j;ht to iiitro<luri' it now." Jit Id,
that these lenuirks to the court were not such n\i infrin;;eineiit upon the
Btatute forhiddiuK the j)rosecutin); attorney to refer to the fact tiiat tlie
defendant <lid not testify in his own In-half a.s re(|iih('s us, luider the cii-
cunistances of this case, to grant a now trhil. State v. Masley, !^)2\)

16. A grand Juror cannot he compelled to disclose how he or any other juror

voted U|M)n an indictnu-nt, hut he may he re(|uired to give the testimony
of a particular witnt>ss. Ex iHtrto. StnitiKj, .Wl!

17. WnKN oaiECTioN MUST UK TAKKN TO iN'incr.MKXT.— If the negative alle-

gation that the mother or child did not die, which lessens the puuisli-
nient under tliH statute, he necessary in the indictMient. se<'tioii 5:! i>f
the criminal |ir<M'eilure act re(|uiri's that any olijection to the "iiiissi'in
shall 1h3 taken hefoi-e the jury is sworn, and it i;i tliee. amcndahi".
Stdtt- V. aedickv, ((

IH, Copy of indictment and list of jurors have to he served on the accused
two days before trial, hut not lM'fori> arraignment. Tlie Stdtc ii. t'lil-
fonl, rt

n>. The granting of a contituiancje is within the legal discretion of the court
« (/»o, with which this <'ourt will not interfere without manifest cause,
So of th(^ ii'fusing of a new trial to the accused. hi,

20. Accused is, luider no law, entitled to a commission to take the t"stimony
of witnesses residing in another state. /(/.

il. Civil. I'RACTK'E .VCT NOT AiM'l.K!Ain,r,. — The provisions of the Code of
Civil l*i"o<'eihu'e. making certilie(l copies of the records of foreign coun-
tries evidence, and prescribing the manner of authentication, are not
apj)li<'uhle. IVic l'vo}iU' i\ IfAiyviiciHii', 2)0

•i'i. Ri:STKAIMN<J VIOI.KNCK OV A I'lUSOXKIl PKNOINO MOTION I'OR A NKW

THIAL.— After the ti'ial and conviction of a prisoner. u|>on a chiirne
of nuirder, upon the he.iringof a motion for a new trial, which lia<l
iM'en continuiii to a Kul>sei|uent term, the prisoner hi'oke out into
nianif(^statioiisof ragtwuid violence towards theotUceiM, and attem|>tecl
to break Jiway. Thereupon handcuffs wer(> jilaced upon his wrists to
restrain him. It was lielii there was no error in thus jireserving order
and |irot(H-ting the sheriff arid his bailiffs from violence, and that it
could not affect the justness of the verdict at the preceding term, nor
the sentence following the overruling of tiie motion for a new trial.
Ui>Ht(me i\ The Pvaplc, :«».■)

3!$. Where the court ordei-s witnesses to be exclud(>d from the <'ourt roirtn
during the op»>ning statement and the taking of tesliniony, it is a mat-
t<'r of discretion with tluM-ourt to allow a witness, who has remained
through a ndsunderstanding of the order, to testify, anrl then remain
during the rest of the trial, i'eoyj/c r. O'Ldiiyhliu, .>)-,>

PRESUMPTIONS.

Presumption of guilt, see BrKul.AKV, 0. As to t-apacity of infant to com-
mit crime, see ISKANTS, 1, 2. As to ai-raignment of defendiuit, see
Practice, 6.

PRINCIPAL AND ACCESSORY.

1. Tl»e statute of K.ansjw authorizes tin.' charging of aii accessory before the

fact us 11 principal. State r, Munleif, ii'JSl

2. Upf>n the trial of an accessory before' tlu.' fact, the record of the conviction

of the principal is i)r<H)f jtriina facie of that fact; but this is not <'on-
clusive, and other evidence of the connnission of the crime by the prin-
cipal is admissible. /''•
See Autrefois Acquit— Autrefok Convict, 7. Murder, 18.

INDEX.

001

PROSECUTION.

TIjo coniliirt of proscputfon in Booking to indnce a witness to sujiiircss tos-
timony. or to voluntoor imi)rop('r testimony, may bo sliown. People r.
H<tU, 857

Withholding tostlniony, see Evidence, 47.

PROSECUTINf* OFFICER.

Prosecutor not to comment on failure of detondant to testify, see Practice,
18, 14, 15.

RAPE.

1. Consent of female ciiu.d under ten years no defense.— Ujwn trial

of iin indictmont for abuse and carnal knowledge of a foiiialo child
under tlio age of ton yoarH, it Ih not error to refuse to charge the jury
that, in order to convict under a count for indecent assault, the evidence
must satisfy tlu' Juiy that tlu> accused committeil the alleged indecent
act against the will of the child. Oliver v. The State, 533

2. There may bo submission by a child of tender years without legal con-

sent. Id.

3. Prosecutrix may be interrogated as to her object in going to the place

where the rape was alleged to have been committed. The State v.
Iliirtnett, 573

RECEIVIN(} STOLEN GOODS.

1. RECEmNO stolen goods and ('(INCEALINO SAME FOR OAIN, E^C— pROOF

NECESSARY.— In order to convict under section 23!) of the Criminal Code
of Illinois, for receiving and aiding in (;oncealing stolen goods for gain,
or to ])ri'vent the owner from receiving the same, etc., it is essential,
first, to show that llu- pn)))erty alleged to have been received or con-
ceaK'cl was in fact stolen; secondly, that tlieaccusoil received the goods
knowing tli(>m to have been stolen, guilty knowledge being an essential
ingredient of the crime; and lastly, that the accused, for his own gain,
or to prevent tlu- owner from recovering the same, liought, recoivecl,
or aided in concealing tlie stolon goods. Aldrich et ul. v. The People.

2. When the owner authorizra or licenses another to receive stolen goods,

and such other jjorson receives the goods from the tiuef knowing them
to hiivo been stolen, with a felonious intent, ho will be guilty of a felony
in receiving the proi)orty, notwithstanding the license. Id.

:i. Must re wini criminai- intent.— AVliero a defendant, on behalf of the
owner, receives stolen goods from the thief, for the honest purpose of
restoring them to tlie owner without fee or reward, or the expectation
of any ju'cunjarv compensation, and in fact inunediately after obtain-
ing their possession restores all lie receives to the owner, and is not act-
ing in concert or connection with the i)arty stealing to make a profit
out of the transaction, he will not be guilty) under the statute. Id.

RESISTING AN OFFICER.

1. Not necessary to aver how officer AcrrED.— The resiiondents were
indicted for hindering an olTicer. One of them pleailed guilty, and
moved in arrest of judgnu'iit for the insufficiency of the indictment.
Held, that it was not necessary that the manner m which tlie officer
was attempting to discharge his duty should be averred in the indict-
ment. State V. Carpenter et al., ' 559

662

AMERICAN CllIMINAL REPORTS.

2. BtJt it must be alloKo«l thnt the accused know, nt llio time of tin- liiii-
dranct'. tliat sucli olHccr wasonoof tiio olHiJ-rHdcHcrilicd in tlic Hlatutc,
whom it is ma(Ui a crimo to hinder. And if it is not so allcgod, micli
defect may Ihj taken advantat;o of in arrest of judgment. Id.

RIOT.

1, Acts wiikii coxstititte hiot. — Where two or nioro persons, acting to-

f^ether without autiioritvof l.-iw, use or tlireaton either force or violence
accomjiiinied hv immediate jiowerof execution, andtlierchy disturii tlie
pnhlic peiKc. tliey are Kidlty of riot. Snllicient force is used to make
out tile charge of riot, if tlieir re(|iu'sts or orders are olieyed through
a re!u«>nahle fear of injury to pertjou or property. I'coplc v. O'ImikiIi-
liii, hii

2. Testimony of a general feehnRof alarm and disijuiet is properly received
to show that tliu defendants disturbed the iniblic peace. /(/,

ROBBERY.

DiSTINfTION BETWKKN ROnilERY AND I.AIU'KNY FROM THE PERRON.— To
constitute rolilu'ry. as tiistin^iished from larceny from the p«'rson, tliere
must Ih' force or intimidation in the act ; therefore, whereathief slipped
his hand into the pocket i)f a lady anil pd his (I ii>;er caught tliercin,
and she felt the hand, and, turnin;^, saw liim unconcernedly lookinj:; at
the hojises, and caught him l>y tlie coat, which waH left with her in
makinfi' his escape, Intd, tiiat the crime is larceny from tlie person, and
not rohlu'ry, thou>::h the lady's pocket was torn in extractiuf^ his hand.
Fanuiiij r. Tlie Sliitc, "((il

FlNDlNd TARTY (lUlI/rY OF TWO OFFENSES OROWINO OITT OF A SIN(iLE

TRANSACTION. — A party cannot Im' Ki'i'ty of rohhery ami of havint; re-
ceived the same ^oods ohtained by the rohlu'ry, knowinicj them to have
been so obtained, where there is but a Min).clc transaction involved, and
a verdict fitulinj^ him ^'li'ty of the robbery, au<l of the larceny (if the
jijoods KO taken, and of receivin^; them, knowinfi; them to have been
stolen or accpiired by robbery, is inconsistent. The latter olTcnse ini-
jmrts a sid)se(|uent and distinct transaction from the robl>ery, iind in-
volv(>s some other jierson who had previtnisly obtained tlie property by
robbery. Tobin r. The I'eiqtle, 650

SEDUCTION. .

SOCIAI, ATTENTIONS NOT STTFICIKNT CORROnORATION — In a trial for
si'duction under jn-omiseof marriaice. evidence of such social attentions
on the )>art of the defendant to the prosecutrix, as accomjianyinfr her
from church, callin;:: on her at the house of her ])arents, and then^
waitiu}:: on her now and t'len for two years, is not fiiiflicitnit to corrolt-
or.ate the jirosecutrix's testimony to the elfect that a promise of niiir-
ria^e wits made to her, and will not warr.ant the jurj- in iindinp; that
fact in the allirmative. Rice r. Com., .Wa

Contrition of defenpant.— Where there is testimony tliat the <lefend-
ant called on the; jirosei-utrix's mother .and oxpn'ssed contrition for what
he had done, and deckired his williiif^ness at the same time to make
amends by marry iii^j; the ])iosc(ntrix after a time, such testimony is
not (!viderice from which a jm-y could safi'ly find a previous i)romise to
man-y. ' Id.

Withhoi.dino testimony ry prosecution.— Failure on the part of the
prosecuti<m to call the father of the pnwetaitrix, w1k» was ja-esent at
the convei-sation, to testify to i)artit ulars thereof, was a ciriainist.inc(!
which would have justified an inference unfavorable to the nrosecu-
tion, and the court woukl have been warranted so to instruct the jury.

Id.

INDEX.

(503

4. STATRMr.NT TO THIRD PRRSON.— Testimony of a convcrHiitioa l)ctw(H«n

tilt' (li'lcuiliint iiii'I a thiril luTHon, in tlit« coursi' of wiiich tlio defurt*!-
ant wild, in nfVrnnci' to tlic matter in liaiul, that " iii! would K've $'HM
to Hcttlf it, and no more; that ho Wiw guilty of tho mmc," wiw not
ovidi'nco of a promist! of maniagc. Id.

5. Conviction I'oii roRVicATioN.— Wliile the evidonce did not warrant

a conviction for seduction tinder promise of marriage, yet a eonvit'tion
for fornication, etc., niigiit Iju sustained inulorthe same indictment. Jd,

-SENTENCE.

1. EimoH wnicii AFFF.rrs skntenik only.— Tlie failure of tho circuit judge

to aHk a prisoner convicted of nuirder, " If he hiut anything to say why
Judgment should not be iironounced on him," is error, and reiiuires a
resentence, although the prisoner did not demand that tliis (luestion
Hliould 1)0 anked. But as this error alfected the sentence only, tho pris-
oner is not entitled to a new trial. Init nuist be resentenced after being
BO iusked. State v, Tirzvrdiit, W(\

2. Sr.NTKNCK ON CONVICTION ON sicvKUAi, CHAUUKS. — When a i)risoner wa.s

adjudged to be imprisoneil for three several tt'rms of ono hundred and
eighty d.-iys ea(!h, without any specification as t(» the time of iM-ginning
or ending of tiu; two hust ti'rms of imprisonment, lield, that he could
not lie imprisoned for a period exceeiling that of a single sentence;
lirlil, idsn, thut there would be !io error in a Judgment making one term
of imprisonment commence when iinother terminates. In re Juclcmm,

;{. Procf-ss op commitment CANNOT ENi.AROR RECORD. — All process aftcr
Judgment must jmrsue, but cannot be used to vary f>r control, tho judg-
ment. And memorandum upon the commitments cannot be resorted
to for tho [>uri)osc of enlarging what the court haa solemnly adjudgod.

Id,

STENOGRAPHER.

See Evidence, 10, 17.

SUNDAY.

1 . The courts take judicial notice of tho day of the week a certain day of

the month camb on. Robinson w State, 570

2. SAnnATil BREAKiNd — INDICTMENT FOR. — The cliarging ])art of an in-

dictment for Sabbath breaking must show that the offense was com-
mitted on sortie Sunday, though the particular Sunday is not important.

Id.
See Intoxicating Liquors, 5.

THREATS.

UNCOMMCfNICATED THREATS ADMISSIBLE UNDER CERTAIN CIRCU5IRTANCES. —
In a trial for homicide, where the ((Uestion is ;is to what was decca.sed's
attitude at the time of the fatal encounter, recent thre.its may become
relevant to show that this ;ittituile wiis one hf)stile to the defendant,
even though such threats were not communicated to defendant. The
evidence is not relevant to show the quo auinio of the defendant, but it
may be rel<>vant to show that at the time of the meeting, tho deceased
was seeking dofiuidant's life. Witjoiiut v. People, 494

C!onditional threats made by the prisoner are sometimes admissible. The
State V. Adams, 393

<](I4

AMERKJAN CRIMINAL REPORTS.

TRESPASS.

Breaking partition fenck.— A person cannot bo ronvictod of niisilc-
moanor for knocking a hoanl off of a jmrtition fcnci', l)('t\v('(>n llu-
lots of hinisolf and tlic i)r()si'(iitinK witness, and Ihc coinnion prnp-
erty of both. Bnt it seems that to pnll down and destroy it would Ik-
criminal trcspitss. Drees v. The State, 5T1

VARIANCE.

MiSNOAIER — NaM!i;S OF PARTIES TO PUOCKKOINCiS IN Wlliril THE FAl.SK
OATH WAS TAKEN ON TRIAI, OF AN INDICTMENT FOR t'EIMlHY.— Tin

names of tlie parties to tlie proceediiij^s in wliicli lh(» fnlse oalh wns
alleged to lja\o lH>en taken are essenliid to its identity, ami. il' incor-
rectTy stated, the varianee is fatal to the prosecution. JaetihH r. Thr
State, Km

See Arson. "Adjoinino," " Adjacent," etc. Rhihery, 4. Indictment, "i.
Lar(;eny, 5, 6.

VENUE.

1. Venue must be proved as laid in the inpictment. — No prin(i|)le is

better settle<l than that in a (Timinal case the veinie must be proved as
laid in the indictmod. It is as important to prove that the olfease \va<
committed in the county where it is charj;t'(l to have tu-en coiiimitteil,
as to j)rove that the defendant committt'd it. The Slate v. Jlartiidl.

2. Proof of — Proof of veniie, like any other fact, may be jiroved by

<lirect or indirect evidence, but it nuist be t>slablished eitiicr i»y the
one or the oilier. Jil.

S. It nnist be proved beyond a reasonable doubt. J^ooJiH r. State, .|s:i

4. False iretenses — Peace of thiai,.— II. wrote and jiosted at X., in
Enjj;la!iil, a letter ad<li'cssed to ( <.. at a place out <>(' I'in;;land, eunlaininu'
a false pretense, by means of wliicli he ('randulciitly induced (i. lo
transmit to N. a (iral't for 1.")!)/., which he tliere cashed. //(/(/. thai
there was juiisdict ion to try II. at N. ; that the pretense was made ai
N., where idso the money ohtaineil hy nu'ans of it was n'ceived. Tin'
Queen v. J lot men, .V,)!

VEROKT.

1. \ Roneral ver<lict of K"'bv. upon an indiclmeiil, is a tinding only of the
facts sutHciently jileailed. Coin, i: ^fol>re, 'SW

3. Alternative I'lNisiiMENT — KiNE ou imi'iusonment, or both.— AVIkh

a statide provides an allernati\(' pnnishment for an (id'en^e. and rnillirr
provides that the Jury, in rendering' a verdict cf jiuilt\'. viliall " lix llic
deuree of putushmi'Ut to he iidlicied. inilcsn the ..■niK' lie Ji.nil hi/ Imr."
tite Jury must he instructed and rci|uii'ed to lix (lie kind and exteiil nf
th(^ punishment within the limits prescribed liv the law. Ilernui r.
The Com.. ' •j;iS

;(. (lENEKAli VEUDU'T oFOiil.TV. — It Was error for the court to receive a
H'cueral verdict of "^•uilty as chart;(Ml in the iudii'tmeut,'' and assess a
line thereon. Jil.

4. Same — When good. — (in an indictment for receiving; stolen jiroiierlv.

and also for aidiuf; in its conceahiu'ut, char;;-ed in two sepai-atc
count.f, both of which ri'lati- to bid one and the same transaction, the
imnishment for e;i<'h otl'ense. even if distinct ones, he! ni; the same, a
genin-al vt^rdict of f;'dlty is pxmI. and will sustain a Judgmeid inlliit-
ing a single punishment. Campbell v. Tlte People, ^;W

INDEX.

■|s:l

Not finding tiik ukorkk ok thk okfensk. — Uiulcr a statute which
niiikcs tht* lull of «'xc(![>ti<)ns part of tiio roionl, iinil it apjjeaxs that
tln! fharj^t' was iimrdiT in tlu^ lirst tk-^^rci-; that tho evidence waa
of (hat (It's^Tcc! iinil no otlu-r; and that no (iiifstion was raised iia to tho
decree, la general vi-rdiet of minder will bo sulliiiently certain aa to tlio
degn-e. Stdfe r. Jiiizztll, 410

Where the Jury is polled in a murder ciuse, it is the duty of each juror
to say for himself whether he tiiids the prisoner guilty of muvdvr in.
tlicjirnt or scvoiKldiyrir. WilliantH v. I>''iifc, 415

Hach .HKoit Mi;sT dksionatk 1)I'.<iI{EK.— When' the response of each
Juror in such case is simply "guilt}'," without a designaftioii of the de-
gree of guilt, such verdict is a nullity. And the fact that the clerk,
imniediately after polling the Jury, called ui)on tliem to hearken to the
verilict an thecoint had reconled it — "your foreman saitli that.!. W.,
tlu! prisoner at the liar, is guiliy of nunder in the first degree, and so
say you all " — does not alfect the (HU'stion. /(/.

In i.auchsy and UKCF.lVlNti SToi.F.N (JOODS.— There cannot he iniitris-
orunent in the penitentiarv for the olfense of receiving projierty ob-
t:i!;it'd by robbery, unless tlie value of the propi'rty e.\<'eeds Sjil"); and
to authorize such pTuiishment the verdict of tlu* Jury nuist find the
\alue of till' i)ro))er(y. Tnhin i\ The I'ctijile, ,>'},')

Vkukict (»f f.i.f.vf.n TKitsoNS IN cAi'iTAi, CASF, A NrM.iTY.— The con-
stitution guaranties a Jury of t\velvi> men, the conunon law Jin-y. and
t!ie rigid to l)e tried for crime by a jury of that number is not a mere
privilege of the prisoner, but a legal re(|uirement, which cannot be
ehanged by tiie consent of the prisoner. The verdict of eleven jin\v-
men in a capital case is a nu-re indlity, and any Judgment rendered
tlieri'on ag.iinst the prisoner is withont jurisdiction and vt)id. Tvrri-

idi-ji V. All Willi (iikI All )'<)!,

l''inding defendant gtiilty of two oirenscs
tion, see HoiUtKKY.2.

See IXSTUUCTIOXS, 7.

574
growing «)ut of a single Irausac-

WITNESSES.

Undku Till'. lU'M'. — KiuiiT OF ((»iNSF.i. TO CONSULT. — It is error in a
criminal case for the court to I'cfuse to allow counsel foi the ■•iccused
to considt his witnesses, for no other reason than that they have been
put under the rule. Allm r. The Sliili; 2i\2

To lU". SF.PAUATF.P. — l{es|)ondent"s rei|nest, in a case of homicide, that
the witnesses may be exanuned separately and not in oiu^ another's
presence, should be grantetl. if seasoiiidtlv made. Tliv J'coplf v.
Hull, ' :!57

STATITI'. WIIUII KF.MOVKS I'OMMON LAW DISAIIIMTY OF, NOT F,X I'OST

FACTO. — Statutoiy alti'rations which do imt increase the i>uiiishment,
nor change tht> ingreilients of the otVens(> or tlie idtinnde l.icts neces-
.sary to establish guilt, and which only remove e.\i^ting restrictions
upon the competency of certain classes of persons as wit nesse;;. i-elate
to modes of pro<'ednre oidy, in which no one ciui be said to have a
vested right, and which the state, upon grounds of public policy, may
ri'gnlate at pleasure, llopt r. lliili. ' 417

DlSdUF.lUF.NCK TO Uri.l-: SKl'AHATINO. KF.NDF.ItS WITNESS (M'lf.TY OF CON-

TF.MI'T, HIT NOT INCOMIM'.TKNT.— While we thiidv it a sound rule of prac-
tice, in putting witnesses under the rnle, to swear all of them on both
sides and sfnd them out of hearing until called to testify, still we
know of no law which renders a witness incompetiMit because he has
heard some of the testimony on the side opnosed to that on which he
was i-alled. It might be a groimd to atla<h theVitness, but not to
exclude him. Honks i: Sddi', 48:5: I'cople t: W LauijIiUn, 54s)

666

AlVIERICAN CRIMINAL KEPORTO.

Arrkst op defendant's witnesses in presence of jury.— It is en-or
for the court to order the arrest of the tlcfendant's witnesses in tlie
presence of the jury before whom they liave just f^iveu tlieir testimony,
and to have them then and there arrested on ac(;ount of wliat tliey
have testified. To do so amoimts to an intimation from the bench that
their evidence is false. Burke v. The State, 579

WRIT OF ERROR.
SeeAppFAL AND Writ ci ■ Error.

;ky.— It is eiTor
witnesses in the
tlieir testimony,
It of wJiat tliey
u the bench that
579