oh ae eal Peete ene yas i! s) rhe aerate on pen oe a va pri + a) ey Ath ay hater ieee rani re aah ee } sarees Bae ede x oo Silesia ure Nt sen pr aye i ripe REPRE Si serene aera Reet Ia noo ‘ re Sai rosie eo Cornell Law School Library treatise on criminal law / A. TREATISE ON CRIMINAL LAW BY FRANCIS WHARTON, LL.D. AUTHOR OF TREATISES ON ‘‘CRIMINAL EVIDENCE,”’ ‘‘CONFLICT OF LAWS,’’ ‘‘MEDICAL JURISPRUDENCE,’ ETC., ETC. ELEVENTH EDITION, WITH LARGE ADDITIONS BY JAMES M. KERR VOL. I. SAN FRANCISCO RocHESTER, N. Y. BANCROFT-WHITNEY CO. THE LAWYERS CO-OP. PUB. CO. 1912 LZ 1S 99 Entered according to Act of Congress, in the | youe 1846, by JAMES KAY, D. BROTH in the Office of the Clerk of the District Court of the “Snitea States, for the Eastern District of Pennsylvania, Entered ea tS to Act of Congress, in the year 1852, by MES KAY, JR., AND BROTHER in the Office of a Clerk of the District Court of the United States, for the Eastern District of Pennsylvania. and and Entered according to Act of Congress, in the year 1855, by KAY AND BROTHER, in the Office of the Clerk of the District Court of the United States, for the Eastern District of Pennsylvania. Entered according to Act of Congr ees: i the year 1857, by KAY AND BROTH in the Office of the Clerk of the District Conte Be the United States, for the Eastern District of Pennsylvania. and and Entered according to Act of Congress, in the year 1861, by KAY AND BROTHER, in the Office of the Clerk of the District Court of the United States, for the Eastern District of Pennsylvania. and Entered according to Bet of Congress, in the year 1868, by KAY AND BROTHER, in the Office of the Clerk of the District Court of the United States, i for the Eastern District of Pennsylvania. and Entered according to Act of Congress, en the year 1874, by KAY AND BROTH in the Office of the Librarian of Ponentt at Washington. Entered according oe oc of Congress, in the year 1880, by NCIS WHARTON, in the Office of bie preven of Congress, at Washington. Entered according i Act_of Congress, in the year 1885, by RANCIS WHARTON, in the Office of tie Librarian of Congress, at Washington. Entered according. to Act of Congress, in ake ee 1896, by HE ESTATE OF FRANCIS W. TON, in the Office of the Librarian of cee Ae Washington. CODEMERS; 1912, NG BANCROFT-WHITNEY COMPAN THE LAWYERS CO-OPERATIVE PUBLISHING COMPANY. PREFACE TO THE ELEVENTH EDITION. It is sixteen years since the tenth edition of Wharton’s Trea- tise on Criminal Law was published. The standard char- acter of the treatise is too well known to need comment. But the developments of the law in the sixteen years since the for- mer edition was published have been too important to be over- looked. The two volumes of that edition have been enlargea to three in the present one. The table of cases shows the im- auense number of authorities that have been considered herein, and it is only by the most careful handling that a much greater bulk has been avoided. Every part of the work has necessarily received much additional value. Nearly five hundred new sec- tions have been added. Indeed, some entire chapters are new, é. g., those on Corpus Delicti, Juvenile Courts, and Defenses. A parallel table of the sections contained in the former and the present editions will readily enable one to trace the citations of the former edition into the present one. The codification of the criminal statutes of the United States has been added to this work as an appendix. This has been done in the belief that every lawyer would deem this a very convenient and valuable accompaniment of the work; and all to whom the matter has been mentioned have emphatically urged it. The present edition has been prepared by Mr. J. M. Kerr, whose name and works are already familiar to the legal profes- sion throughout the entire country. September, 1912. iii. PREFACE. The duties in which I have been recently engaged, as counsel for the Department of State of the United States, have led me to give increased attention to those portions of the following pages which deal with offenses against the United States dis- tinctively, with offenses against international law, and with conflicts of jurisdiction. I have felt myself obliged, also, in con- sequence of the great recent increase of adjudications in respect to statutory nuisances, and to violations of liquor laws, to re- write the chapters embracing the discussion of those topics. The other portions of the book have been subjected to numer- ous modifications, and the text of the whole has been revised. Upward of forty-six hundred new citations have been distributed through the entire work, giving in many instances new aspects to positions previously taken, and in other instances modifying those positions. I trust that in this way the work accurately and exhaustively exhibits the law of which it treats down to the present day. Washington, May, 1885. F. W. vy. CONSPECTUS. VOLUME I. CHAPTER I. BASIS OF CRIMINAL JURISPRUDENCE. I. Revative THEORIES. § 1. Purpose of State in punishing crime ............ 1 § 2. That object of punishment is to prevent the offend- er from further offending .................. 2 § 3. That object of punishment is public self-defense 4 § 4, That object of punishment is the reformation of the: Offender wocsc sits gece eee amass 5 § 5. —Reformation of offender is primary object .... 5 § 6. —Theory of reformation does not make distinc- tion as to crimes sci yee naa des Sue bead swede 6 § 7. That object of punishment is to terrify others 6 § 8. —Criticism of theory applies to terrorism ...... 8 § 9. That penal justice is law teaching by example 10 II. AssotuTe THEoRY. § 10. That punishment is an act of retributive justice, to which reformation and example are inci- dental geese deh eey yee nts sede teateek tities 11 § 11. Crime, as such, is to be punished by de facto gov- PHIMENGS) ads ds Bias dese ayins Siete d cas teen ne eae 12 § 12. Prevention of further crimes to be kept in view .. 12 § 13. —And so the reformation of the offender ...... 13 CHAPTER IT. DEFINITION AND ANALYSIS OF CRIME. § 14. Crime is an act made punishable by law ........ 17 § 15. —Inadequacy of definition ...........-....... 20 vii viii § 31. § 32. § 33. § 34. § 35. § 36. § 37. § 38. § 39. § 40. § 41. § 42. § 43. § 44, § 45. CONSPECTUS. . Immorality and indictability are not convertible . Distinction between public and private remedies . English common law in force in the United States . Want of English common-law authorities does not preclude an offense from being indictable at common law in the United States ......... . Offenses indictable here, though punishable in England by statute only ..............-.-.. . —Disturbances of the public peace indictable at Gommon, laW «iicacescuvens cheawe ress eee ees . —Malicious mischief indictable at common law . Public scandal and indecency indictable at com- TOT LAW! carat do science Se ths Seas ssmhiovan Ih tanguoniale sp axeerapan . Offenses exclusively religious not indictable .... . Offenses at common law are (1) treasons, (2) felonies, and (3) misdemeanors ............ . Felonies include crimes subject to forfeiture .... . “Infamy” is that which impresses a moral taint . Misdemeanors comprise offenses lower than FOL ON IES. a tecsicaca iets wereson aa yanehiian ase Gosmantens Blane - Police offenses to be distinguished from criminal . An act when prohibited by statute is indictable, though indictment is not given by statute .. Statutory provisions as to punishment to be strictly followed .......... cc cece cece eee New statutory penalties are cumulative with common Law vcessseahie s qe ssani needa yee Offenses are divisible—-l. By discharging aggra- vating incidents .............. sees eee eee —2. By diversity as to time ................. —3. By diversity as to place .............. eae ——4, By diversity as to object ............... —5. By diversity as to aspect ............... —6. By diversity as to actors ................. Merger is absorption of lesser in greater offense Penal statutes to be construed favorably to ac- CUBED ae qtsats axeudials, 4 deen G4 as sag va ew aw Eee ders tens Hawes were —lInference of fraud may be refuted by proof of bona fide attempts to find owner ........ —wWhere there are earmarks reasonable dili- gence should be shown ............00..005- —Intent to restore for reward only makes the offense larceny ............eeeeeeeeeee Returning does not purge felony ........ £6 Site —Same rule as to cattle ...........0. 00 ee eee Intent to steal, coupled with belief that own- er may be found, constitutes larceny ........ —But not larceny unless belief that owner may be found and felonious intent and finding CONG sant sedeoiaegmeyesadieg Fa sales oes Larceny for railroad officers to appropriate things found in cars .........-..e eee eee Not larceny for person employed to find goods to appropriate them .............+-...-54- —Nor for assignee of finder to retain goods .. Taking must be in some way proved. Need not be secret, but must be fraudulent .......... Consent of owner does not bar prosecution in cases where consent is that defendant should have fare charge only, or where consent was not ‘specific or voluntary ..... eala'sie sitisene xvii 1353 1353 1353 1353 1354 1354 1354 1356 1357 1359 1360 1362 1363 1365 1367 1368 1369 1370 1370 1370 1371 1373 1373 1374 1374 1374 1376 xlviii § 1154, § 1155. § 1156. § 1157. § 1158. § 1159. § 1160. § 1161. § 1162. § 1163. § 1164. § 1165. § 1166. § 1167. § 1168. § 1169. V. OWNERSHIP. § 1170. § 1171. § 1172. § 1173. § 1174, § 1175. § 1176. § 1177. § 1178. § 1179. § 1180. CONSPECTUS. Consent cannot be given by unauthorized agent No defense that goods were exposed by owner to theft: ses. sis4 aeacocsawons sie omeeecawewe ss Not larceny for wife to take away her hus- band’s goods, or for person merely assisting OL Geaiiauh sie. aceiniah eG aian he aM oie Beare Gaines —But otherwise for person assisting adulterous SWAT ccesrctsigats ots ser Bb tei sar Soduaitl wh even ay ager ORS Hate —In such case defendant must be connected with the taking ............ cee e eee eens Larceny in man to steal his own goods from bailee to charge bailee ..............---+5. Joint tenants or tenants in common of chat- tel cannot steal chattel unless in hands of DAES: cae a sstdeaice ote Oaatnd Gad amaele 0 Feat ahd Distance of moving immaterial ............. Taking need not be by hand ............... Killing of animals, not a sufficient carrying OWAY! ieilscclaalelh ae alive’ ea aeGen ears nee Eee Enticing or trapping animals, not taking, etc., until seizure. of. iccisaeiesaweesscanaenes Party must be present at taking to be principal Thief carrying goods from county to county may be convicted in either county ........ All assisting in asportation are principals .. Conflict of opinion as to whether when goods are stolen in one state, thief may be convicted in another state where goods are brought.... When several things are taken by continuous act, this is a single larceny ................ Either absolute or special, will sustain an in- ICHIMIE NED 9 55 na cnd otha bes dandve tonedale: Sievencisunee ee euasane Counts may vary property .............4... Ownership may be inferentially proved ...... Variance in ownership is fatal ............. Ownership of joint tenants and tenants in com- mon must be jointly laid ................ General owner may be charged with stealing from special owner .......... 0.000. ee eeee Grave clothes and coffins to be laid as prop- erty of executors .......... cece eee eee ee As against strangers, property may be laid either in bailor or bailee .................. Property cannot be laid in servant or child —wNor in married woman ................0.0. Goods of corporation must be laid as such; and so of state ......... SNE SS 8 ERS Cad 1378 1379 1380 1380 1382 1382 1383 1384 1386 1387 1388 1388 1389 1390 1391 1393 1394 1397 1397 1398 1398 1398 1399 1400 1401 1402 1403 § 1181. § 1182. § 1183, § 1184, § 1185. § 1186. § 1187. § 1188, § 1189. VI. VALuE. § 1190. § 1191. § 1192. § 1193. § 1194. CONSPECTUS. xlix Goods levied on may be laid property of officer OF OWNER \sa)s05)s erates Mea Raa eee S 1404 When servant is charged with stealing from master, master’s possession must be proved .. 1404 Specific ownership of stvlen coin must be SHOWN! ei cand ccartrouse nen monited wtinaileule ss ayaa’ 1404 Goods stolen from thief may be laid as prop- erty Of thie® sossiie sane ae pers cstewes sea 1405 Things stolen from mail ................... 1405 Clothes, etc., of child may be laid as property of father of child ...................0045. 1405 Stealing simultaneously goods of different own- ers makes more than one offense .......... 1405 Owner may be laid as unknown ............ 1406 Goods of deceased persons to be averred to be property of executors ...............04. 1407 Some value must be attached to the thing BEOMEN iyi. ca, athe noose Bae ne ech GpigRiar teas 1407 Lumping valuation not sufficient when the con- viction is for stealing a part only ........ 1407 When there is a statutory limit, values must conform to statute ...............ee eee 1409 May be larceny of a piece of paper ........ 1409 Value may be inferentially shown ........... 1410 VII. By Servant AND OTHERS Havina BaRE CHARGE. § 1195. § 1196. § 1197. § 1198. § 1199. § 1200. § 1201. § 1202. § 1203. VIII. By Barer. § 1204. Larceny for servant having bare charge to con- vert to his own use .......... 0.0.02 e eens 1410 —So as to other persons having bare charge 1412 —So as to persons with whom goods are inad- vertently left .......... cc cece cece eee eee 1413 —aAnd so of letter carrier stealing letters .... 1413 —And so of clerk without discretion, stealing goods of employer ..............-.e.eeeu 1413 —Otherwise where property in goods is in Clerk acted esaencddste 4G. 14 Sas baw aus 1416 —And where the master has not had posses- sion of the goods .......... 66-200 eee e eee 1416 Reception. in master’s wagon is reception by master, and so of reception by carrier for MOStER viii) ues head ADS aS ahaSh Bad ean as mei 1416 —And so of reception in master’s immediate control; but not so as to money secreted or pocketed by servant ...................0., 1417 To servant’s subsequent conversion, original fraudulent intent is not necessary; otherwise 88, to bailee icici c ccs eey sissies epee secs 1418 1 CONSPECTUS. § 1205. When bare possession is fraudulently obtained, subsequent conversion is larceny .......... 1419 § 1206. —Otherwise when property in goods is passed 1422 § 1207. No such property passed when possession fraud- ulently obtained from servant or bailee as percludes prosecution for larceny .......... 1423 § 1208. Bailee liable when book or package is fraudu- lently broken, though possession was obtained bona fide js weiiees bags ena eulens Hea ese cd 1425 § 1209. —And so where bailment is determined by fraudulent severance ..............0.000- 1426 § 1210. Exception where the bailment expires of itself 1427 § 1211. By statute bailee open in other cases to prose- CULION. bai dou Debs en sable dau eeee yas heee 1427 IX. By AssIGNEE OR VENDEE. § 1212. Sale obtained by force does not transfer prop- OLby?. Ks waves e see piste ae Babeeenamedaws med 1428 § 1213. Sale must be complete ...................... 1429 § 1214. Transfer by ‘“‘ring-dropping” or trick not such AAS LL ge ater Sade csv ad Sec charts ete chiens ecaes 1430 § 1215. Transfer must be by consent of two minds to: One thing: 2s sccscies voee eves Pea ees 1431 § 1216. Conditional transfer does not bar larceny ..... 1433 § 1217. No defense that goods were obtained by legal process, where such process is fraud ...... 1433 X. INDICTMENT. § 1218. Indictment must be formally correct ...... 1434 § 1219. Various counts may be joined .......... .e.. 1436 § 1220. Ownership must be stated ................... 1436 XI. Vervicr. § 1221. Generally sicccec sacaess eons ce ee ts sete esanes 1437 XII. Resrorine ARTICLES STOLEN. § 1222. By statute articles stolen may be restored .. 1437 § 1223. Goods may be followed in hands of assignee WE MObICE: viccecotin ciactvanad re aves onnwe Haverdaie 1438 XIII. ATrempts. § 1224. Generally acsicnsis acne ees caseee ve case su goa 1439 NIV. Larceny From HOovse, § 1225. Statutory Offense ........... cece eee eee e eee 1439 XV. DEFENSES. § 1226. Generally sac e ence oeeens een ene veeeee 1440 CONSPECTUS. li CHAPTER XXVIILI. RECEIVING STOLEN GOODS. I, OFFENSE GENERALLY. § 1227, § 1228. § 1229, § 1230. § 1231. § 1232, § 1233. § 1234. § 1235. Mmmm § 1240. § 1241. g§ 1242. § 1243. § 1244, II, INDICTMENT. Mm unm MM mM w a i bo on wo § 1254. ITI, DEFENSES. § 1255, 1236. 1237, 1238. 1239. 1245. 1246. 1247. 1248. 1249. 1250. 1251. 1252. Receiving is « substantive offense ........... 1444 Facts of stealing may be proved by testimony of thief, not by his confession .............. 1445 Guilty knowledge is to be proved ........... 1446 —Such knowledge may be inferred ........... 1449 —Inference may be derived from possession .. 1450 If larceny be proved, defendant cannot be con- victed of receiving ..............0. eee eee 1451 Claim of title a defense .................. 1452 Honest intention a defense, but need not be lucri causa if intent be fraudulent .......... 1452 If charge be joint, joint act of reception must be; PROVE esa acaba meus do Aate seni ba 1453 Reception must be substantially proved ...... 1453 Reception must be from thief .............. 1454 Goods must be of some value .............. 1455 Receiving goods with intent of receiving re- ward is within rule ................. 0.45: 1456 Wife cannot be convicted of receiving goods stolen by husband; but husband is responsible for receiving at his wife’s guilty reception 1456 Reception against will of thief is not within RUNS? 4 gr supa s daidit's Pale taps ey gies a wales Gee 1456 Conflict as to whether indictment lies in one state for receiving goods stolen in another .. 1456 Place of reception to be inferentially proved .. 1457 Reception after statutory larceny indictable .. 1457 Name of thief need not be given ............ 1457 Not necessary to aver conviction of thief .... 1459 Scienter and unlawfulness necessary ......... 1459 Time and place need not be stated .......... 1460 “Taking” or “stealing” must be averred ...... 1460 Goods must be accurately described ......... 1460 Value must be averred .......... cc eeeeeaee 1461 Counts may vary with ownership ............ 1462, . Count for larceny and for receiving may be JOMMEDS “as vant Rawal aan owes Da aatecs a teed sen 1462 Simultaneous reception of goods of different owners not one offense ........... seveerees 1463 Generally ...ceceescecceescseece dered e vais 1463 did CONSPECTUS. CHAPTER XXVIIL EMBEZZLEMENT. I. Aqartnst Servant AND OTHERS APPROPRIATING Goops Nor YET COME § 1256. § 1257. § 1258. § 1259. § 1260. § 1261. § 1262. § 1263. § 1264. § 1265. § 1266. § 1267. § 1268. § 1269. § 1270. g§ 1271. § 1272. § 1273. § 1274. § 1275. § 1276. § 1277. § 1278. To THEIR MASTER. Statutes not designed to overlap the common law. Common-law larceny cannot be embez- zlement by statute ............. Sader acim Statute makes it embezzlement for servant or clerk to appropriate master’s goods before he Teéeives them 56 sic ccs wes vee dened as wine Employment need not be permanent ........ —But mere volunteer not within statute ...... Servant employed to change note or sell pro- duce is within statute ..................5- Compensation is requisite to constitute service Members of society or partners in firms not servants within the statute ................ Goods may be followed through successive re- INVESLMENtS. via ti sa eed e aevivewe na enna saad The “servant” need not be the servant of the PTOSECULOT 0... cece tee eet tte enes “Servant” includes employees of all kinds .... —But not those invested with fiduciary dis- CLOUION: 6. kar Le saene ess nS aaaies 2 éeceuss A middleman is not a servant ............... A “clerk” is a person employed to keep accounts and collect money thereon ................ “Agent” is wider in meaning than “clerk.” ... “Virtue of employment” as test of old stetute Not necessary that thing embezzled should have been received in direct conformity with em- ployer’s directions ..............0005. eres Not material as to prosecutor’s title against third parties 0.2.2... cc cece ee cece ences No defense that money received was under re- stricted limit ........6. 0. cece cece ee eee If case is larceny at common law, it is not embezzlement; e. g., when goods are stolen after reaching master ...........-.....0., Embezzlement covers only cases which common- law larceny does not include .............. Diverging view in New York .............. Fraud is to be inferred from facts ........... No defense that money was received from an- other servant ....ccceee scene cece eet eeee 1467 1474 1475 1476 1476 1477 1477 1478 1479 1479 1482 1483 1483 1484 1485 1486 1486 1487 1487 1489 1489 1490 CONSPECTUS. § 1279. Goods must have been received on account of MASLET oo cece ee cccc ce ccee cee etenrereenes § 1280. The goods must not heione to the defendant . § 1281. Middleman may be prosecutor ..............- § 1282. Corporation may be prosecutor, but not illegal COTPOTation .. 0... . cece cect ee eee neers § 1283. No defense that worthless security was given § 1284. Conversion of produce enough ............... § 1285. No defense that principals have no title to the MONEY essed gene eeaend eeu ed eae ne Aas § 1286. No defense that a trap was laid for the de- FONG AME ise sissy pee sdenss by Seip ude d eas asebs § 1287. Defendant may be tried in any place of em- bezzlement. 6 esics wees ieee sewa ne ye se auen § 1288. Embezzlements created by Federal statutes must be tried in Federal courts .......... § 1289, Simultaneous embezzlements may be joined .. § 1290. Fiduciary relation must be averred .......... § 1291. Goods embezzled and ownership must be ac- curately stated 2.0.0... .. ccc cece eee eee § 1292. When “felonious” must be used ............. § 1293. Servant of joint masters may be averred to be servant of either ............ 60. e eee eee § 1294. Embezzlement may be joined with larceny .... § 1295. Bill of particulars should be required ........ Goops ReEcrIvep Bona FIDE. § 1296. Statute covers cases of trustees or agents fraud- ulently appropriating goods received bona fide for principals ................ cece eee § 1297. If case one of larceny at common law, embezzle- Ment: Lawl gy oo oc wikis Sn g.2 se Shas es Sande h eaAgar ede § 1298. “Officer” may be a nomen generalissimum .... § 1299. Trustee is one holding property for another § 1300. Fraud to be inferred from circumstances ..... § 1301. “Agents;” term includes what ................ § 1302. Copartners and members of common society mot: “agents: jie saci ge eee NSd fees suscep dus § 1303. “Bailee” to be used in restricted sense ...... § 1304. Person not capable of contracting may be bailee § 1305. Goods need not have been received directly from PYOSCCUEON: = stay diakercedamis su wien 205 mae § 1306. Conversion must be shown inconsistent with character of bailment .................0.4. § 1307. Some act of conversion must be in the juris- diction: sais mama nodes tance bee ae § 1308. Indictment must conform to statute ......... § 1309. Special facts to be averred .......... oss Sess lili 1494 1494 1495 1495 1496 1496 1496 1497 1497 1498 1498 1498 1503 {I. Aaainst TRUSTEES, AGENTS, BAILEES, AND OTHERS, APPROPRIATING 1503 1504 1505 1505 1507 1508 1509 1510 1512 1512 liv § 1310. g 1311. CONSPECTUS. At common law, indictment for larceny not enough ...... eee cece cere e eae Evidence inferential ............+eseeeeeeeee III. Pustic Orricer. § 1312. Embezzlement by statutory officer ...........- IV. REcEIvVING EMBEZZLED Goops. § 1313. V. DEFENSES. § 1314. § 1315. § 1316. § 1317. § 1318. § 1319. § 1320. § 1321. § 1322. § 1323. § 1324, § 1325. § 1326. § 1327. § 1328. § 1329. § 1330. § 1331. § 1332. § 1333. § 1334, § 1335. § 1336. § 1337. Indictable at common law .........+ ieAiici Generally 1.0... ... cece eee e eee ee eee asco oigabiniene CHAPTER XXIX. MALICIOUS MISCHIEF. Statutes based on common law ....... a REA Offense of wider scope in this country than in England ........ cece cece eee ene eens Offense includes malicious physical injury to the rights of another person or to those of the public. cvs viwawcrcwiesectaaeenar ames —But offense must be with malice to owner, or involve a breach of the peace ........... Distinguishable from larceny by absence of intent to steal ......... 6. cece eee eee eeee Malice is essential to the offense ............ Malice is to be inferred from facts .......... —May be negative by proof of other motives .. Honest belief in title a defense to malicious TTESPASS ancses cman saw waneg sera weg nes Consent of owner is a defense ............... Injury must be such as to impair utility ..... Owner is competent witness ................. All kinds of property are subject of offense ... Owner’s title is immaterial .................. Indictment must contain proper technical aver- MONS. sci anachrdecy areas asea ee Se eNire endal eines Malice must usually be averred ...... Vipicaied Mode of injury must be averred ............ Statutory offense of endangering lives of rail- road ‘travelers: ..ccccses deers Seesed swivdudcee Obstructing engine or railroad carriage in- Gita: seein nvsas mca siawuncniin myers nds Malicious injury to manufactures, material, and machinery indictable ................. —So as to mines ........ cece eee eee e eee 1522 1528 1530 1532 1532 1535 1535 1535 1536 1536 1536 1536 1537 1537 1538 1539 1539 § 1338, § 1339, § 1340. § 1341. § 1342. § 1343. § 1344, § 1345. CONSPECTUS. lv Injury must be serious ...... Gigs Batata at 1546 Omission to kill wounded animals ........... 1546 Instrument of cruelty need not be shown, when 1547 Statutes limit common carriers ............. 1547 Wanton cruelty essential to offense .......... 1547 “Discipline” or necessity as a defense ...... 1548 Indictment must conform to statute ........ 1549 Defenses in general ...........0eeeeeeeecees 1550 CHAPTER XXX. FORCIBLE ENTRY AND DETAINER. I, CHARACTER OF THE OFFENSE. § 1346, § 1347, 1348, § 1349. wa § 1350. § 1351, § 1352. § 1353. § 1354. § 1355. § 1556. § 1357. § 1358. § 1359. § 1360. § 1361. § 1362. § 1363. § 1364. Forcible exclusion of another from his lands and tenements is an offense at common law 1554 Modification of common law by statute ...... 1555 Gist of offense is the violence ................ 1556 Statutory offense requires less force than com- mon law, but either freehold or leasehold Hite. soho sts oe de mee eee, y OER 1556 Any person forcibly putting out another from possession may be indicted ................ 1557 Wife may be so indicted as against her husband 1557 —So as to tenant in common ejecting his com- PATON: ss saesvcasaw eee awins Goda ed ¥oane ee 1557 —S8o as to third person dispossessing officer of the law sssaicsauemceadee ede sam esca ganas 1558 Real estate, corporeal or incorporeal, may be thus protected ........... 00. eee eee eee 1558 To forcible trespass on personalty, force is CSSENUIAL jee oid nals ere Stay ek Ge dea ROS 1558 To forcible entry, force exceeding trespass is NCCESSALY aintas geese ya oew ewe aes ose Gary ae 1559 Force may be inferred from facts ............ 1560 Rule does not apply to outhouses when house has been peaceably entered ............... 1561 Entry by trick not “forcible” ............... 1562 Peaceable entry may be followed by forcible Getainer ac avec dos dyna eggs anes wed Ge Gey ORGS 1562 Forcible continuance by wrongful occupier is forcible entry oo... 0c. cece e tence nnes 1562 When there is right of entry, violence is essen- tial to: OffenS8@: 24.5.4 ccc cis tow tere ee wens 1563 Tenant at will cannot be expelled by force ... 1563 Owner may forcibly enter against a mere in- truder ...ceccvecsccccccccececs BE DG ET c0. 1565 lvi § 1365. § 1366. § 1367. § 1368. § 1369. II, INDICTMENT. § 1370. § 1371. § 1372. § 1373. § 1374. § 1375. § 1376. III. DEFENSES. § 1377. CONSPECTUS. Legal right to enter necessary to writ of restitution ........ 0. cece eee e eee eee eens Forcible detainer to be inferred from facts .... At common law, only possession is necessary to prosecution .......... ec cece eee eee e eee Title not at issue ......... 0. eee eee ence eeeee Prosecution may prove force .......-.+++++++- Indictment must contain technical terms ..... For common law offense, possession only need be BVEIIEd caves vai na avai ors Wheteae baedace Premises must be described as in ejectment .... Entry and detainer are divisible ............ Title is necessary to restitution .............. Indictment for forcible trespass on personalty must aver violence ............++seeeeeee Practice to sustain summary conviction ...... Generally ............ SEAveseusig SMM awINS Sa Sieeie CHAPTER XXXI. I. CHEats aT Common Law. § 1378. § 1379. § 1380. § 1381. § 1382. § 1383. § 1384. § 1385. § 1386. § 1387. § 1388. § 1389. § 1390. CHEATS. As to what constitute ............65- a Soe Cheats affecting public justice indictable ah aes —And so of cheats by false tokens and devises calculated to affect public ................ —But not by short measure without false token Adulteration, to be indictable, must be latent, directed to public generally ............... Cheats by public false news may be indictable —And so of false dice ............ Pied Guat ahs —And so of false notes calculated to affect public at large ......... cece eee eee eee —And so of false personation ..... ie apaeads —And so of false stamps and trademarks, and authors’ names ........ 0... ee eee eee eee eee —But not cheats whose falsity is not latent and not addressed to the public at large. False pretenses not cheats ................ Nature of distinction between public and pri- Vate: cheats: 6.40 wes a aed. eaacmn an vinaln ee When possession only is obtained, offense may be larceny ......... wis aligns Fog swears a tua ava 1565 1565 1566 1566 1567 1567 1568 1569 1569 1570 1570 1571 1571 1577 1578 1579. 1580 1580 1581 1582 1582 1583 1584 1584 1586 § 1391. § 1392. CONSPECTUS. Mii Indictment for public cheats need not name party cheated sss sccn0sceenesoeewass ewes 1587 Mode of cheating should be specified ......... 1588 Il. Sratutory CHEATS BY FaLSE PRETENSES. 1. General Rules of Construction. § 1393. § 1394. § 1395. § 1396. § 1397. Statutes regarding obtaining goods by false pretenses: sasvcciorsveenecderwas seeneas nes 1588 Statutes are to be construed in accordance with ODIO CEs isc sinss.'s waciabsasstecusreresd Sasa eue apes mince 1591 —Chancellor Walworth’s comment ....... oe. 1592 —‘False pretense” is of great latitude ....... 1593 Definition of “false pretense” ............... 1593 2. Character of Pretenses. § 1398. § 1399. § 1400. § 1401. § 1402. § 1403. § 1404. § 1405. § 1406. § 1407. § 1408. § 1409. § 1410. § 1411. § 1412. § 1413. § 1414, § 1415. § 1416. Pretense that defendant, a person of wealth and credit, is within the statute .............. 1594 —And so that defendant possesses certain BPCCiNed Assets. cc siicwaswnvenewaved nwalence x 1596 —Same rule applies when object is to obtain negotiable paper ..............2e cesses eee 1597 —So when endorsement is thus obtained...... 1597 —-So generally as to defendant’s status ...... 1597 —So as to pretenses to supernatural powers .. 1598 —So as to pretense that defendant had de- livered certain goods or money ............ 1598 —So as to pretense that defendant was sent for certain £0008: ..u.ceesvdeweregndaxea sag ews 1599 —So as to pretense of being a certain physician 1599 —So as to pretense that the defendant repre- sents a principal of means and influence ... 1600 —So as to pretense that defendant was an auctioneer in search of a clerk or was a storekeeper suc.sseawss seeing ene eeaeies 1600 —So as to pretense that defendant was a cer- tain attorney .......... 0. cece cece e eee ee 1600 —So as to pretense that defendant was a cer- TAIN PAYEE: cvs se swcdan acta deter sueudyenessewanaeicnacdypiass 1601 —So as to pretense that defendant was un- married, thereby obtaining money ......... 1601 —So as to pretense that defendant had certain legal rights which he did not possess ...... 1601 —So as to pretense that defendant had certain eleim against prosecutor ................. 1602 —So as to pretense that defendant could settle a prosecution falsely pretending to be pend- ing against prosecutor .................05. 1603 —And so of assumption that defendant was “an Oxford student,” or “clergyman,” or “officer” 1603 False begging letters may be within statute ... 1604 Wiii CONSPECTUS. § 1417. A false pretense to be distinguished from a puff 1604 § 1418. Mere exaggerated praise not a false pretense 1605 § 1419. —But otherwise as to false samples ........ 1606 § 1420. Opinions are not always pretenses .........-- 1606 § 1421. Use of false brand is within statute ......... 1607 § 1422. False statement as to specific weights is within the statute ........... cee eee eee eee 1607 § 1423. False statement as to property offered for loan or sale may be within the statute ......... 1609 § 1424. —And so of false warranty when not a mere matter of opinion .........--.-. see eee eee 1610 § 1425. —And so of negotiating worthless or spurious Paper .c4aiesac dimen caudendsnies den esate we 1611 § 1426. —And so of uttering postdated check ........ 1613 § 1427. Obtaining money by forged paper, not larceny, but false pretense ...........--0e ee eee eee 1614 § 1428. False claim to government a statutory offense 1614 3. Falsity of the Pretenses. § 1429. Only strong probability of falsity need be SHOWN. xasictend Gece cases Seay pea 1614 § 1430. Burden of negative is on prosecution ......... 1616 § 1431. —But pretense must be squarely negatived ... 1617 § 1432. —Sufficient to disprove one pretense ......... 1617 § 1433. —Expecting to pay no negation ............. 1617 4, Pretense need not be in Words. § 1434. Conduct is a sufficient pretense ............. 1617 5. They need not be by the Defendant Personally. § 1435. Pretense by one confederate is pretense by all 1620 § 1436. Confederacy must be first shown ............ 1621 6. They must Relate to a Past or Present State of Things. § 1437. Promises or predictions are not false pretenses 1621 § 1438. —But false pretense is not neutralized by con- current, “promise. eciieg sien coca ees s yee 1623 7. They must have been the Operative Cause of the Transfer. § 1439. Unless operative, not within statute ......... 1623 § 1440. Yet it need not be the sole motive .......... 1624 § 1441. Must have been before bargain closed ....... 1625 § 1442. Verification by prosecutor may be a defense 1626 § 1443. Pretense must have been direct cause, and prop- erty must have been transferred .......... 1627 § 1444. No defense that the goods were obtained me- diately through a contract .............. 1627 § 1445. False accounts of payments may be a pretense 1628 § 1446. Prosecutor witness to prove preponderating in- AMUCKCE ssisidmrs des ade nes seanee se wae ees 1629 § 1447. Necessary that prosecutor should have believed the representations .........6. seeeeeenee 1629 CONSPECTUS. 8. Intent. § 1448. Intent to be inferred from facts ........ carla x § 1449. To compel payment of debt .............006, § 1450. Proof of system admissible ....... BR § Oe . § 1451. Intent to indemnify no defense .............. 9. Scienter, § 1452. Defendant must be shown to have known the falsity’ gi; <4 gach geyauntac date oe hbase sees 10. Prosecutor’s Negligence or Misconduct. § 1453. Prosecutor not required to show prudence be- yond his opportunities ................... § 1454. —Exception to above rule .................. § 1455. —His contributory negligence to be determined by his lights. ..cc¢:..veereve ven nes saree ses § 1456. Carelessness amounting to consent estops prose- CULOM osugexessaoieatenves reese See scene § 1457. Trap set by prosecutor is no defense ......... § 1458. That prosecutor made false representations no DAE «soe cata cant aieteedy aa aan sma ay Sa § 1459. —Nor is prosecutor’s gross credulity ......... § 1460. —But “brag” and “loose talk” are not within the: ‘statute ssc pnt son winni satan reaenons § 1461. Indebtedness of prosecutor to defendant no CORGNSE > (is zmcns catanataga feck qaietsta ceed. onde aaa Seana, ll. Property Included by Statutes. § 1462. Negotiable papers within statute ............ § 1463. Thing obtained must be of some value ....... § 1464. Money paid in satisfaction of debt not within BLALUTe). ahead cone adn thames oan segs ane § 1465. Credit on account will not sustain indictment § 1466. Goods not at the time in existence are within Btatltel is 0s cdsg es Ha cep tings Medieae sé § 1467. Actual injury to owner need not be proved § 1468. Goods must not have belonged to defendant personally or as a member of a firm; nor taken on a claim of title ................. § 1469. Goods must have been obtained for defendant, and in accordance with his directions ..... § 1470. Property must pass, and not mere use of chattel § 1471. Property not larcenous not within statute .... 12. Where the Offense is Triable. § 1472: Generally: s2ss00 ees s es x emia 8 ote nae emunle 4 _§ 1473. Venue, in case of conflict, may be laid in any place of offense .............. 0.0 eee ee eee lix 1631 1632 1633 1634 1635 1635 1636 1636 1636 1637 1637 1638 1639 1640 1640 1641 1641 1641 1642 1642 Ix CONSPECTUS. § 1474. Principal indictable in place of agent’s act ... 1644 § 1475. Doctrine of asportation does not apply ...... 1644 13. Indictment. § 1476. Several defendants may be joined ...... sees. 1644 § 1477. Technical averments necessary ...........4-- 1645 § 1478. Party injured must be described as in larceny 1645 § 1479, Pretense to agent is pretense to principal .... 1645 § 1480. Pretense must be averred specifically ........ 1646 § 1481. Substantial variance is fatal ................ 1647 § 1482. In bargains relation of pretense to bargain must be averred ........ 00.0 e eee eee neces 1648 § 1483. Defendant’s allegation of property must be proved as laid ........ 2... cece cee ees 1651 § 1484. Spurious or bad note or coin need not be set Out at: ATO: is os Seek hated os Std baa dee 1651 § 1485. When pretenses are divisible, part only need BG: PROVE. a: siete tia t vonapncdeeacesauens eo Mertatanaw ads 1652 § 1486. Verbal accuracy not required ................ 1652 § 1487. Innuendoes and definitions proper when ex- planation is required .............0.00eee 1652 § 1488. Description of property to be as in larceny ... 1653 § 1489. Property obtained must be individuated ...... 1653 § 1490. Owner must be stated .........-... 2. eee 1654 § 1491. Pretenses must be negatived ................ 1654 § 1492. Scienter must be averred ...........-.0000005 1655 § 1493. Intent to defraud must in some way appear .. 1656 § 1494. Obtaining “by means” of pretense must be AVERTED. wisici aiitpaarn died cexeuchOe Sibaia ye 6 Ave -+. 1657 § 1495. Varying counts may be joined ....... eee 1659 14, Attempts. § 1496. By statute conviction may be had of attempts under an indictment for complete offense .. 1659 § 1497. Conviction may be had irrespective of prose- cutor’s prudence ..............e cece eens 1659 § 1498. Attempt may be sustained where credit only is Obtained: jean ak nate vg nuns Gey wie ee 4 aes 1659 § 1499. Question of attempt is for jury .............. 1660 § 1500. General character of instrument must be desig- MALE hide aisa Sse eases cir seine Head Teves 1660 § 1501. Means of attempt must be averred .......... 1660 15. Receiving Goods Obtained by False Pretenses. § 1502. Receiving goods so obtained is indictable ..... 1660 III. DEFENSES. § 1503. Generally ..... cece sececeeeceeessceccecsesee 166] CONSPECTUS, ksi CHAPTER XXXII. FRAUDULENT INSOLVENCY. I. FRaupULENT CONVEYANCES. § 1504. Under statute Elizabeth making fraudulent con- veyances is indictable .........seeeseeeeee 1663 II. SecReTING Goops. : § 1505. Secreting goods is made indictable by statute 1664 § 1506. Secreting or assigning must be actual ....... 1664 § 1507. Intent or scienter must be shown ............ 1665 CHAPTER XXXIITI. PERJURY. I. WILFUL. § 1508. Definition of perjury ..... siNne is weewe ssa LOTO § 1509. Offense must be wilful ...............++-..- 1671 II. FaLsE aAnp CoRRUPT. § 1510. “Falsely” is knowingly affirming without proba- DIG: CBSE: 04 na. Sac gaice wea eleaoate eee 1673 '§ 1511. Probable cause is to be estimated from de- fendant’s standpoint ..................04- 1674 § 1512. Admissible to prove « mistake of fact induced by erroneous representations of others ..... 1675 § 1513. —And so when advised by counsel .......... 1675 § 1514. General intent may constitute corruption .... 1675 III. Oarn. § 1515. Form of oath is immaterial if legal ......... 1676 § 1516. No matter if oath was on voir dire .......... 1678 IV. Parry To BE CHARGED. § 1517. Two defendants cannot be joined ........... 1679 § 1518. Perjury though witness is incompetent ...... 1679 § 1519. —And though he be a volunteer ............. 1679 V. BerorE A COMPETENT OFFICER. § 1520. The false swearing must have been in proceed- ings authorized by law ..... pe Raw ones cece 1679 § 1521. Officers of court administering the oath must be competent ............ cece eee eee eee 1680 § 1522. Proceedings need not have been strictly regular 1681 § 1523. Perjury may be before court-martial ........ 1682 § 1524. —And in Connecticut, before an ecclesiastical COURT 4 jeer sad Wed sss seeded s caw eee ee seeee. 1682 § 1525. Grand jury may administer oath ............ 1683 § 1526. —But otherwise of unauthorized officer ...... 1683 § 1527. Officer acting as such prima facie competent .. 1683 bai CONSPECTUS., § 1528. Perjury not extraterritorially punishable .... 1685 § 1529. State magistrate under act of Congress inay administer oath ............ 0020 eee eee 1686 § 1530. —And so justice of the peace and arbitrators under rule of arbitration ...............- 1686 VI. In Procerpines AutTiorizep By Law, § 1531. False swearing must be in proceedings author- ized by Iaw acres vcs Steed ewnes as aces aay ee 1686 § 1532. Juror indictable for false swearing on voir dire 1688 § 1533. Voluntary false affidavits are not perjury .... 1688 § 1534. —But otherwise as to statutory affidavit .... 1689 § 1535. Party may be guilty of perjury in his own case 1691 § 1536. No perjury in void suit .................... 1691 § 1537. —Nor on oath as to future official conduct .... 1692 § 1538. Not necessary to show additional enabling proof 1692 § 1539. State court has ordinarily no jurisdiction of false swearing in Federal court ........... 1692 VII. In Marrer Materraz. § 1540. False swearing must have been in matter ma- terial sc waeiedre ire sions weds ¢k0de pede eee eM eee 1693 § 1541. —But circumstantiality of detail may be ma- terial ........ SEM Kage Bee KOE BOGS EOS Sica 1694 § 1542. —And so testimony as to correctness of witness 1697 § 1543. —And so of witness’s answer in his own crogs- VIII. InpictmMents. CXOMINAION, sess. anise teresa osname 1697 § 1544. Inadmissibility no test of immateriality ...... 1697 § 1545. Admission not conclusive as to materiality ... 1698 § 1546. Prima facie materiality is sufficient ......... 1698 § 1547. Irrelevant opinions not subject of perjury .... 1699 § 1548. Materiality is for court .................00.. 1700 § 1549... Generally” 2.5 s-udeas 2s yswae eyes HORSE eka weds 1700 1. Wilful and Corrupt. § 1550. Indictment must charge wilfulness and cor- TUPtION vehi nee rt aed yt tess eatsancan ed eane 1702 2. Sworn before Competent Jurisdiction. § 1551. Oath must be properly set forth ............ 1703 § 1552. Detailed authority of court need not be given 1705 § 1553. —Otherwise with special statutory officer .... 1705 § 1554. Jurisdiction must be averred ............... 1706 § 1555. Time and place must be correctly averred .... 1707 3. In a Judicial Proceeding. § 1556. Judicial proceeding must be averred ......... 1707 § 1557. Must appear that proceedings were regular ... 1708 § 1558. —But irregularities which are cured are not fatal x. 306%: Wag ESAS wiotare NG ar duaul gt ecer brea 1708 § 1559. —Otherwise as to essential conditions ....... 1709 § 1560. CONSPECTUS. By present practice only essential averments of record need be introduced ............ 4. How, and to what Extent, the Alleged False Matter is to § 1561. § 1562. § 1563. be Set Out. Verbal exactness in sworn matter not necessary “Substance” and “effect” enough ............ Only alleged falsity need be pleaded .......... 5. How the False Matter is to be Negatived. § 1564. § 1565. § 1566. § 1567. Negation of false matter must be express .... Several assignments may be incorporated in one COUNG. sng A dGA ae eae Meals erties he “Belief” must be specifically negatived ....... Ambiguities may be cleared by innuendoes .... ‘6. Materiality. § 1568. IX. Evipence, § 1569. § 1570. § 1571. § 1572. § 1573. § 1574. § 1575. 1576. mm 1577. 1578. 1579. 1580. 1581. CO? > i > 1582. 1583. 1584, 1585. Mm MM Mr a § 1586. § 1587. § 1588. § 1589. Materiality must appear on record .......... Oath must be correctly averred and proved .. Whole of testimony may be taken into consid- eration 4 cuas caves Pens wise ook Hae wae wee Rs Substance of assignment must be proved ..... Substantial variance as to evidence is fatal ... Answers in chancery and deposition to be proved by jurat ......... 0... eee eee eee Written evidence may be proved by parol .... —So of lost instruments ................... Jurat of officers administering oath may be proof of oath yeussesecisevocetae bs exaases Substantial variance as to evidence is fatal ... Records must be literally given ............. Not necessary to prove appointment of officer Proving one assignment is sufficient ......... Defendant’s oath to the contrary not sufficient proof of falsity ................... 2... eee Facts admissible to infer corrupt motive ...... One witness not enough to prove falsity ...... Credibility of witnesses for jury ............ Witness may be dispensed with when there is adequate documentary falsification ........ Some one assignment should be adequately falsified) ses ce se en tex sewduin'’s aoe Bde eG aes Necessary only that testimony should be sub- stantially negatived ...................... Perjury not to be prosecuted during pendency of civil suit in which alleged false oath was CARON sled cctdus anes Facer GE ince SHA Std OE ahead Sed Entire facts connected with false evidence ad- missible ........eeeeeees o 8 eiaisionere ames Ixiii 1709 1710 1711 171] 1712 1713 1718 1713 1715 1718 1719 1719 1719 1720 1720 1720 1720 1721 1722 1722 1723 1723 1724 1724 1726 1726 1727 1727 Ixiv CONSPECTUS. § 1590. At common law entire record should be proved 1729 § 1591. Character of defendant for truth admissible .. 1729 X. ATTEMPT To Commit PERgury. § 1592, Attempt at perjury indictable .......... «eee. 1730 XI. SuBornation or PERJURY. § 1593. To subornation corrupt motive is essential ... 1730 § 1594. Testimony must be material .............--- 1731 § 1595. Indictment must aver scienter ........00 02 cease 1731 XII, Atremprs To SuBoRN: DisSUADING WITNESS FROM APPEARING, § 1596. Attempts at subornation are indictable ....... 1731 § 1597. —And so of dissuading witness from attending 1732 XIII. Faprication or EvipEnce, § 1598. In general ......... cece eee eer eee enee eeeee 1782 XIV. DEFENSES. § 1599. Generally ............066- sielejerbaa's) naleys eeeee. 1733 CHAPTER XXXIV. CONSPIRACY. I. GENERAL CONSIDERATION. § 1600. Conspiracies are indictable when directed to accomplishment of illegal object or use of illegal means ..........0 0000s cece seen ees 1739 § 1601. —Offense to be limited to such cases ......... 1743 § 1602. Where concert is necessary to offense, conspi- racy does not lie .......... 0.0 cee eee eee, 1746 § 1603. Conspiracy must be directed to something which, if not interrupted by extraneous in- terference, will result in an unlawful act 1747 § 1604. Not necessary that all the parties should be capable of committing the offense ......... 1749 § 1605. Conspiracy analogous to attempt ...... seeees 1749 § 1606. Averring intent necessary ................06. 1749 II, Conspiracy To COMMIT AN INDICTABLE OFFENSE. § 1607. Conspiracy to commit felony is indictable at common law as a misdemeanor ........... 1750 § 1608. Indictment need not detail means ........... . 1750 § 1609. Gradual abandonment of doctrine of merger .. 1751 § 1610. In conspiracies to commit misdemeanor the in- dictment need not detail means .......... 1753 § 1611. Conspiracy does not merge in misdemeanor ... 1755 § 1612. Conspiracy to cheat is indictable at common law 1756 § 1613. Enough if indictment charge “divers false pretenses? wae os sso eeeoe ames eRe seen 1758 § 1614. On the merits a conspiracy to defraud is punishable ...... cece cee ee esse ee ee cence 1764 CONSPECTUS. xv § 1615. Mere civil trespass or fraud not enough; other- wise as to forcible entry and detainer of PICMISeS gsi see eGeddee yade Awe eka ees 1762 § 1616. Conspiracy in fraud of insolvency or bankrupt law indictable ........... 0c cece eee e eee eee 177u § 1617. —And so of conspiracy to violate lottery laws 177] § 1618. —And so of conspiracy to commit breach of the PACE bo viceiamnas Sema erases ha wae te 1772 § 1619. —And so of conspiracy to assault ............ 1773 § 1620. —And so of conspiracy to falsely imprison ... 1773 § 1621. —And so of seditious conspiracy ............ 1773 § 1622. —And so of conspiracy to commit offense against Federal laws, or to defraud the United States ......... ccc cece ene eee 1774 § 1623. —And so of conspiracy to interfere with civil Tights 25 is cewsrssiee sce wae vrais cesses 1777 § 1624. —And so of conspiracy to make false or il- Tegal TOtES 6 cise sca sseueeie tw e duaele, ¥9:4 wee amin geaLe 1777 III. Conspiracy to Make Use or Means THEMSELVES THE SUBJECT or INDICTMENT, TO EFFECT AN INDIFFERENT OBJEcT. § 1625. When the illegality is in the means, these means must be set forth ................0000000, 1778 IV. Conspiracy To po AN ACT, THE COMMISSION OF WHICH BY AN INDIVIDUAL MAY NoT BE INDICTABLE, BUT THE CoMMISSION OF WHICH By Two or Mors, IN PuRgSUANCE OF A PREVIOUS COMBINATION, IS CaLCULATED TO AFFECT THE COMMUNITY IN- JURIOUSLY. § 1626. Acts which derive their indictability from plurality of actors ............. 0. ee eee eee 1779 § 1627. Conspiracy to commit such acts, is indictable 1781 1. To Commit an Immoral Act; Such, for Instance, as the Seduction of a Young Woman, or to Produce an Abortion. § 1628. Conspiracy to seduce or abduct is indictable .. 1782 § 1629. —So of conspiracy to procure a fraudulent marriage or GiVOTce ........ eee eee eee eee 1783 § 1630. —So of conspiracy to debauch ............... 1783 § 1631. —So of conspiracy to procure abortion ...... 1784 § 1632. —So of conspiracy to prevent interment of dead 1784 2. To Prejudice the Public or Government Generally; as, for Instance, by Unduly Elevating or De- pressing the Price of Wages, or Toll, or of any Merchantable Commodity, or by De- frauding the Revenue; or to Impoverish or Defraud any Individual or Class. § 1633. Conspiracy to forcibly or fraudulently raise or depress the price of labor is indictable .... 1785 Ixvi CONSPECTUS. § 1634, —Unlawful means should be averred ........ § 1635. —So of conspiracy by unlawful means to keep an operative out of employment .......... § 1636. —So of conspiracy to engross any particular business staple or transportation .......... 1637. —To suppress competition at public auction .. 1638. —And so to combine to do public wrong ...... 1639. —So to tamper with an election ............. 1640. —So to defraud revenue .........--.+.eeeee 1641. —So to publish a false statement of the affairs of a banking or trading company ........ § 1642. —So to attempt corrupt bargain with or for BOVEPMMENE 4 sae pcos annie Saeed ace eee teases Ged t& CR tN tH tM . To Falsely Accuse Another of Crime, or use other Im- proper Means to Injure His Reputation, or Extort Money from Him. § 1643. Conspiracy to falsely prosecute is indictable § 1644. Conviction no bar ........... cc cee cece eens § 1645. Indictment need not detail imputed crime .... § 1646. Conspiracy to extort money is indictable: so To; defame? i iuuisiaawee eed neaey ceorea anos 4. Conspiracy to Obstruct Justice. § 1647. Conspiracies to obstruct public justice are in- Midtable. ins x cscs ca wane wek maw ee eae V. GENERAL REQUISITE oF INDICTMENT. 1. Executed Conspiracy, and Herein of Overt Acts. § 1648. Executed conspiracy should be so averred .... § 1649. Overt acts not necessary when conspiracy is per se unlawful wi. ccc ccasie secu asa inn on § 1650. Overt acts useful as explaining the conspiracy CHAT BED «cased wbee sawada case ware eae Hie alese ate § 1651. Overt acts may be required by statute ....... 2. Unexecuted Conspiracies. § 1652. Fact of their omission may be explained ..... § 1653. Bill of particulars may be required .......... 3. Joinder of Counts. § 1654. Count for conspiracy can be joined with count for substantive offense ................... 4, Joinder of Defendants. § 1655. Two or more persons necessary to offense .... § 1656. Prosecution may elect conspirators to proceed ORGINSE. 6c cad nee dona maadeunnnesdeavunate ede § 1657. All contributing with knowledge of common design may be joined ..................... § 1658. Acquittal of one defendant evidence on trial of other scesys:h cna easy ethes Hee dee Mend adees § 1659. Husband and wife without other defendant not sufficient ............. seeeicone Semen 8 god Bait a 1796 1797 1799 1800 1801 1802 1803 1803 1805 1807 1807 1807 1808 1809 1811 1812 1814 1814 1815 1815 1816 1817 1818 1818 CONSPECTUS. kevii § 1660. Unknown co-conspirator can be introduced .... 1818 § 1661. Judgment should be several .........---.+-- 1819 § 1662. New trial for one is new trial for all ........ 1819 5. Enumeration of Parties Injured. § 1663. Parties injured must be named if practicable 1819 6. Venue. § 1664. Venue may be in place of act .............. 1820 Vi. EvIDENCE. Proof of Conspiracy. § 1665. Proof of conspiracy inferential ......... «eee. 1822 § 1666. Complicity in prior stages unnecessary ....... 1824 § 1667. No overt act necessary ........... 6000 e cease 1824 § 1665. Order of evidence at discretion of court ..... 1825 § 1669. Mere cognizance of fraudulent action no con- BPILACY = eines adie thd Ses we Reed as ORES EES 1826 § 1670. Material variance as to means fatal ......... 1827 § 1671. System of conspiracy may be proved ........ 1828 § 1672. Co-conspirators are liable for each other’s acts 1830 § 1673. Declaration of co-conspirators admissible against each other ........... eee eee eee 1830 VII. Veroicr. § 1674, Verdict acquitting all but one defendant is a general acquittal ......... 0. cece eee ee eee 1832 VIII. DEFENSES. § 1675. In general ........ cece eee Sica tiatemeie steist 1833 CHAPTER XXXV. NUISANCE, I, GENERAL CONDITIONS. § 1676. Nuisance must be an offense deleterious to a community at large ...........:ss sees eee 1840 § 1677. —Not enough if offense is special ........... 1840 § 1678. Not necessary that nuisance be detrimental to public: Health. sco vau cee iad sane cas 1841 § 1679. Offensive trades not necessarily indictable .... 1845 § 1680. Annoyance must be reasonably such ......... 1846 § 1681. Prescription no defense, nor is recentness of population ..... jug tal cee bes dein eee L SE 1847 § 1682. Collateral public advantages no defense ...... 1849 § 1683. No defense that similar nuisances coexist .... 1850 § 1684. No defense that thing complained of has other place wax sae Soha yee haw ese wae te eek 1850 § 1685. Prior conviction no defense ................. 1850 § 1686. No defense that there was no evil intent ..... 1850 § 1687. Good intention no defense .................. 1851 Ixviii CONSPECTUS. § 1688, All concerned are principals .....-..seeeeee § 1689. Person undertaking public duties indictable for neglect 2... cee cece eee teeter tenes § 1690. A license from government no excuse for un- necessary nUisance ......... ee eee ee eee eee § 1691. Nuisance must be in causal relation with de- fendant’s act ......... cece eee eee eee II. ABATEMENT For. § 1692. Nuisance may be stopped by abatement ...... III. InpicrMEnt. § 1693. Indictment must conclude to common nuisance § 1694. —Must show a public offense ............... § 1695. Bill of particulars may be required ....... see IV. Poor. § 1696. Nuisance to be proven inferentially .......... V. OFFENSES To RELIGION. § 1697. Whatever shocks common religious sense is a NUISANCE fies coaeinaee 8h SR SESS NOOR SSE See § 1698. Unnecessary labor on Sunday a statutory of- POTIBE 3 sc cietay SG-5 . Spunlal ese ReSsiumneh austcole.Ja lanaiio Sien-antensr’ § 1699. Limitation as to kind of labor to be followed § 1700. Necessary occupations are excepted .......... VI. OrrensEs To Pusiic DrcrNncy. § 1701. Whatever shocks public decency is a nuisance § 1702. Indecent treatment of the dead indictable .... § 1703. Noisy and indecent conduct in public streets VII. Orrenses 10 Haru. § 1704. Whatever is likely to generate disease is a THUISANCE, sete s b:2:30 Siecsetverars auerecd dieva eeeune Pesan 1. Unwholesome Food or Drink. § 1705. Exposure of putrid or infectious food or drink B MUIBANCE. 4.45 dese. eed new danas dae ¢ § 1706. Mere unwholesomeness is not sufficient ....... 2. Contagious Diseases. § 1707. Communication of infectious diseases is a nuis- ANCE ......00- VAea Ns RRR Hee Rate PME VIII. Orrensive INDUSTRIES, § 1708. In general ..........004. a Raieie ais Braale a sions § 1709. Offensive industries cannot be planted in popu- lous community ......... 66. . cee eee e eens § 1710. Offensive industries indictable if placed within Clty MMS: sai0.5 same ss Corowa dees eee eed aes § 1711. Whether such industry must recede, in other cases, when population approaches, is a question of expediency ......... cee eeee ate IX. Explosives AND INFLAMMABLE COMPOUNDS. § 1712. Explosive compounds must be carefully kept .. 1855 1858 1859 1860 1860 1861 1862 1863 1864 1867 1868 1870 1871 1872 1874 1875 1875 1876 1876 1877 CONSPECTUS. lxix X. Nuysances or PersonaL DEPORTMENT, § 1713. § 1714. § 1715. § 1716. § 1717. § 1718. § 1719. Common scold indictable at common law ..... 1878 —And so of common brawlers ..........-.+++ 1879 —And so of common barrators. Common thieves 1879 —And so of eavesdroppers ..........-.-..-+- 1880 —And so of persons habitually and openly lewd 1880 —And so,of common drunkards ............. 1882 —And so of false newsmongers ..........+-- 1882 XI Disorperty, Bawpy, AND TrPPLine Houses. § 1720. Bawdyhouses and disorderly houses indictable at common law .......... 6. cece cece eee 1883 § 1721. —Enough if facts constituting nuisance are BVENTED: seine cise Gaal g eas. Ae eh eke ya elie 1886 § 1722. Character of house to be proved inductively .. 1887 § 1723. Bad reputation of visitors admissible ........ 1888 § 1724. Ownership proved inferentially ............. 1890 § 1725. Tippling-houses indictable at common law .... 1890 § 1726. Married woman indictable for keeping “house” 1891 § 1727. Proof of general nuisance is enough ......... 1891 § 1728. Offense need not be lucri causa .........5.44. 1892 § 1729. A room or a tent may be a “house” .......... 1892 § 1730. Letting house of ill fame indictable at common DAW: acs. aide Se Beardie, wre tye eee Oe ania eens Raa ae 1892 § 1731. —Cognizance of object sufficient to impute in- dictability ........... 0... sees Saeed ee 1894 § 1732. —Indictment must be special ............... 1895 XII. Games. § 1733. Scandalous or disorderly games indictable .... 1895 § 1734. —So of bowling alleys where disorderly ...... 1895 § 1735. —So of billiard rooms ...................... 1896 § 1736. —So of public spectacles .................0. 1897 § 1737. Gaming, when public, may be indictable ...... 1897 § 1738. Gaming is staking on chance ............... 1901 § 1739. Gambling a statutory offense ............... 1907 § 1740. Gaming made unlawful by whatever excites dis- GUED ANCE! ioc ccsyeis secs Seoumee daca pel Reece Greta 1911 § 1741. Receiving minors at gaming tables ........... 1912 § 1742. Statutory requisite must be followed in pleading 1912 § 1743. Evidence is inferential ..................... 1916 § 1744. Betting a statutory offense ................. 1917 XIII. Exposure or Person. § 1745. Indecent exposure is a nuisance .......... «-. 1919 § 1746. Publicity must be averred .................. 1919 § 1747. Place must be open to public .............. 1920 § 1748. Intent to be inferred ....................04, 1921 § 1749. To be a nuisance offense must be at public place 1921 lxx CONSPECTUS. XIV. Osstructine Highways Ann NAVIGABLE STREAMS. § 1750. & § 1751. § 1752. § 1753. § 1754. § 1755. § 1756. § 1757. § 1758. § 1759. § 1760. § 1761. § 1762. § 1763. § 1764. § 1765. § 1766. XV. DErenses. § 1767. § 1768. § 1769. § 1770. § 1771. & 1772. § 1773. § 1774. Obstructing roads over which public has right of way is indictable ............... 0a eee 1922 Whatever interferes with traffic is an ob- BtPUCHION: sspan'geay aid sea. arya nw ER ge eae 1925 —So as to ground dedicated to the public .... 1929 Prescription no defense ................0006- 1930 Unlicensed or excessive obstruction by railroad may be indictable ................-.00005 1930 Nuisance to obstruct or pollute public waters 1932 Collateral benefit no defense ...........++.4- 1934 Not necessary that tide should flow ......... 1934 Indictment may lie for obstructing fish ...... 1935 Wharf may be a nuisance ..........+eeeeeee 1935 —And so may docks ......... 0. cece eee ew eeee 1936 —And so may oyster beds .........---.e eee 1936 License no defense to negligent obstruction ... 1936 Neglect in repairing roads may be indictable 1936 Indictment must aver duty ................ 1937 Court may comp~l repair by fine ............ 1937 Abatement: gies ayia yee awd e engine eee mane 1938 Generally” saucusa ti aee ew esua years eee deals 1938 Bawdyhouse and disorderly house ............ 1939 Drunkenness: 26035954504 Genses wees sea Yass 1940 Exhibiting gaming table .................04. 1949 Gea Up Sais, Bie id lates star seins Ree eh as 1941 Private nuisance ........ ee cee e eee ete e eee 194] Profane swearing ........ eee cece eee eens 1942 Sunday nuisance ......... ccc eee cee ences 1943 CHAPTER XXXVI. LOTTERIES. I. Orrenses INCLUDED IN STATUTE. § 1775. § 1776. § 1777. § 1778. II. Inpiorment. § 1779. § 1780. § 1781. § 1782. Lotteries and sales of lottery tickets indictable by ‘statute: sccysieede ee ee¥elnis vias oe doers 1944 “Lottery” does not include private drawings by CHANCE sss acs ceintate daw aoe eA eae tae oligens 1945 Games of chance to be distinguished from games OF {SKU i Fpuad cre inisai wuckimmve Serban ek oars 1952 “Ticket” includes fraction ...............6.. 1952 Indictment must show ticket to be prohibited 1952 Not duplicity to couple stages of offense ...... 1953 Enough to follow statute ................... 1955 Variance in ticket fatal ...........-.....0.. 1955 CONSPECTUS. Ixxi III. Eviwence. § 1783. Intent proved inferentially .....ssseeeeeeee-- 1955 IV. DEFENSES. § 1784. Generally ....... a aR a a bcwieieletereiersis veivess, 1956: CHAPTER XXXVII. ILLICIT SALE OF INTOXICATING LIQUORS. I. In Generar, § 1785. Tippling-house when disorderly is a nuisance 1959 § 1786. Nuisances defined by statute ..............4. 1960 § 17875 Tevidence: 224 xs san se cawe- eos sean vio wetare ewe 1963 § 1788. Cannot be abated by private force ........... 1965 II. LicensE—Irs N5GATION, PRoor, AND Errecrs. § 1789. License should be negatived in indictment .... 1965 § 1790. How license is to be proved .............+... 1967 § 1791. Construction of license ..............+-0..05- 1969 § 1792. License not assignable ..............eeeeeeee 1970 III. Common SELLERS—DrEALER—TIPPLING-HOUSE. § 1793. Averment and proof ..... see Rowe Soe ee ee 1971 IV. AcEency. § 1794. Principal liable for agent’s act .............. 1972 § 1795. Agent is personally responsible .............. 1975 V. WHaT MAY BE CONSIDERED “SPIRITUOUS” oR “INTOXICATING” LIQUOR UNDER THE STATUTE. § 1796. Intoxicating qualities when notorious need not DO PLONE: 33 24:0 5 faeeiasl docus. Guide dais seeds See ald evel 24 1976 § 1797. Averments in indictment .................... 1982 § 1798. Diversity of knowledge among judges ........ 1982 VI. How Far MenpicaL USE Is A DEFENSE, § 1799. To be w defense drink must be sold in good faith as medicine .............-.0-00ee eee 1985 § 1800. —And so as to opium .............-....004. 1988 § 1801. Liquor derives its type from object of its use 1988 VII. IaNoRANCE. § 1802. Honest mistake of fact is not ordinarily a defense: .isaekesasoscecian vanes deaeye xd 1990 VIII. AUTREFOIS ACQUIT. § 1803. Offense must be indictable to bar ............ 1991 IX. Huspanp anp WIFE. § 1804. Feme covert may be responsible for sales, and husband for wife’s sales .................. 1993 X. AVERMENT AND PRoor oF VENDEE. § 1805. Prevelent opinion is that vendee need not be MAMEO sisieee ses baw twee wt seco Seal erane sl ag ais 1995 § 1806. Vendee may be averred as unknown .......... 1997 § 1807. Vendee when named must be proved ......... 1997 Ixxii CONSPECTUS. XI, AVERMENT AND PRoor oF SALE. 1. How Sale to be Averred. § 1808. Sales to minors and drunkards specially pro- Wibited: nn ccueot a snae.gs Melle taeda mare Me 1998 § 1809. Limitation of statute to be followed ......... 2003 § 1810. Limitation as to neighborhood of schools or Churches 4. sats yawewears yay eere sees tees aieles 2004 § 1811. Statutory description of liquor sufficient ..... 2005 § 1812. —And so as to measure ..........0 eee reece 2006 § 1813. —And so as to retail ........ eee eee eee eens 2008 § 1814. “Sell and offer” not double .........e.eee0. 2008 § 1815. Price need not be averred ........-.--+..00e 2008 § 1816. Sufficient to charge as “common seller”’— License—Sale must be properly averred ... 2009 2. What are Sales. § 1817. Sales on credit are within statute .......... 2010 § 1818. —And so are drinks on “trade” or as collateral 2011 § 1819. Club distribution not sales under statute .... 2013 3. Proof of Sales. § 1820. Sales to be inferred from circumstances ...... 2015 § 1821. Time is immaterial .....................04. 2018 § 1822. Measure is immaterial unless made otherwise Dy! Satu bes sc. 5 canst aneashan ans aia Sie elalea carting 2019 § 1823. Name immaterial ............-e.eeeeeeeeeee 2019 § 1824. To be inferentially shown .................- 2020 § 1825. Sales may be joined .............0 eee eeeeeee 2020 § 1826. Only offenses charged to be proved .......... 2020 § 1827. Bill of particulars may be required ......... 2020 § 1828. Partial license no defense ...............4.. 2021 § 1829. Statutory presumption as to sale ............ 2021 XII. KEerpine Prowisirep Liquor For SALE. § 1830. A statutory offense ......... 6c eee eee eee eee 2021 § 1831. Offense merely statutory ...........-++--.00- 2022 § 1832. Statutes to be strictly construed ............ 2022 § 1833. Drink in the house ..........cecee cee eeeeee 2023 § 1834. Intent essential .......... ec ee eee eee eee eee 2023 § 1835. The indictment .......... cece cece eee eee nee 2024 8 1836. Possession and seizure .........eee essen aee 2025 § 1837. Evidence inferential ............ eek wees sree 2026 XIII, PENAL RESPONSIBILITY OF VENDEE. § 1838. Vendee may be called as witness ............ 2029 NIV. CONSriTUTIONALITY OF Laws RESPECTING. § 1839. License laws to be strictly construed ........ 2030 § 1840. Constitutionality of laws modifying evidence .. 2034 XV. Uniten States REVENUE LICENSE. § 1841. Effect of license .......... ce cee ee eee eee ees 2037 XVI. JURISDICTION. § 1842. Each place of offense has jurisdiction ....... 2037 XVII. Drerenses. § 1843. § 1844, § 1845. § 1846. § 1847, § 1848, § 1849, § 1850. CONSPECTUS. Ixxiii Generally ....... i eeargl da eeeie ie e's eepee ais cocecees 2038 Intent no ingredient ............. 0 cece ee eee 2041 Agency of accused ............ 00. cece eee 2041 Invalidity of the law or bond given .......... 2042 Sale by agent ....... 0... cece cece e eee e eae 2042 Selling on election day ......... ashe saduehen ea 2043 Sale to minors .......... cc eee ee eee e cece 2044 Sale to common drunkard .................. 2046 VOLUME III. CHAPTER XXXVIII. RIOT, ROUT, AND UNLAWFUL ASSEMBLY. I, UNLAWFUL ASSEMBLY. § 1851. II. Rout. § 1852. III. Rror. § 1853. § 1854. § 1855. § 1856. § 1857. § 1858. § 1859. § 1860. § 1861. § 1862. § 1863. § 1864, § 1865, § 1866. IV. AFFRAYS. § 1867. § 1868. Unlawful assembly is an assembly threatening a tumultuous disturbance of public peace .. 2048 Rout is attempt at riot ........ cece eee eee ee 2050 Riot is an executed tumultuous disturbance of public peace .............4.. bua ata a aa 2050 Must be unlawful assembly .................- 2052 Must be likely to inspire terror ............ 2052 Riotously to tumultuously assert legal rights .. 2053 Riot act need not be read .................. 2054 All present and not suppressing are participants 2054 Defendant’s purpose may be material ........ 2055 Enough if individuals only are terrified ...... 2055 Three or more persons necessary to offense ... 2055 Indictment must contain proper technical terms 2057 System must be proved in order to introduce Other Tots xissene ess ceod nad eek aad eae sus 2058 Order of evidence is at discretion of court .... 2058 Force excusable in defense of home .......... 2058 On indictment for riot may be convicted of lesser OffeN5€ .icseuedsaew cesses eetenees 2059 Affray is a sudden “free fight” ............. 2059 Quarrelsome words no affray ................ 2060 lxxiv CONSPECTUS. § 1869. —But wearing dangerous weapons may, with violent language, suffice ..............00-- 2061 § 1870. Indictment must contain technical averments 2062 V. Power oF MAGISTRATE IN DISPERSING. § 1871. Magistrate may disperse unlawful assembly .. 2062 VI. DisTtuRBANCE oF MEETINGS. § 1872. Such disturbances indictable ............... 2065 § 1873. Statute as to religious services ............+. 2066 VII. DEFENSES, § 1874. In. general. sctcc0 ese nie cg nae ne Sepaieiecaieneis 2069 CHAPTER XXXIX. WEARING CONCEALED WEAPONS. § 1875. Wearing concealed weapons indictable by Statute. nisciaadhe Ria dade se eae dee eetgabe es 2071 § 1876. Defenses ................. Bene eweeseeearss: LOT CHAPTER XL. COMPOUNDING CRIMES. § 1877. Compounding crime is agreeing not to prosecute DCE. Sats Aeteneheer eens ena tin atl ceapeneerin ee ates soe eaNteeeS 2078 § 1878. Not necessary that principal should have been CONVICLED, cas yise dares ae ganas a eae exw RaE 2080 § 1879, Defenses: oni sic vee vseaie’s area ns * eeveeness ee 2080 CHAPTER XII. MISCONDUCT IN OFFICE. I. Orrices Basep EXcLUSIVELY on NaruraL Law. § 1880. Responsibility of parent for child, and husband LOR WATE aa sicctic cae loapiewlne nen nes $e ree 2082 § 1881. Misconduct must result in exposure of the per- son neglected to physical danger .......... 2084 § 1882. Party charged must have had means to dis- charge the office ....................0.00, 2084 § 1883. Person neglected must have been incapable of selfchelp: ws s2cgq bs sad neoe ee Ame ed pew eRe s 2085 § 1884. Neglect is a substantive offense ....... seeee. 2085 II. Statutory OFFEensE. 1. Disobedience. § 1885. Officer disobeying law, indictable ............ 2086 CONSPECTUS. Ixxv § 1886. Indictment must be special ..............00-- 2087 § 1887. Appointment need not be averred or proved ... 2088 § 1888. Impeachable officers not subject to indictment 2088 2. Oppression, Fraud, and Corruption. § 1889. Oppression by officer indictable ............. 2090 § 1890. —So is fraud ............ eee c eee e eee 2091 § 1891. —And so of corruption .............-000000: 2091 § 1892. —And so of usurpation .........6.e seen eens 2092 § 1893. De facto officers responsible ..............4.- 2092 § 1894. Indictment must be special ................. 2093 3. Extortion. § 1895. Extortion is taking money unjustly by an of- NOTA op ja n.5d niyn be Ruccer te nasmiias Began and aes 2093 § 1896. Statutes do not ordinarily absorb common law 2094 § 1897. Motive must be corrupt ............-....4-- 2094 § 1898. Act must be complete ..............0..2000- 2095 § 1899. All concerned are principals ........... «eee. 2096 § 1900. How far indictment must be special ......... 2096 4, Neglect. § 1901. Need be no injury caused in case of neglect 2096 § 1902. Need not be malice .................-..04.. 2097 § 1903. Mistake of law or fact no defense ........... 2097 § 1904. Drunkenness in public official indictable ..... 2098 § 1905. —And so of neglect by officer in attempt to sup- PROSE! TOU cs ios eneins yah bar assay tat edna 2098 § 1906. —And so of municipal neglect in repair of TOADS sine sieeve eeu weina as Weied ae wae Hees 2099 III. VoLtuntary OFrFices. § 1907. Guardian, master, or keeper indictable for neg- Jeet hs 255 Gee aes ee hae ide ees Wea oka bee es 2100 § 1908. —So of officers of ships and railroads ....... 2100 § 1909. —So of inn keepers ........... 000 eeeeeceee 2100 § 1910. Ignorance and want of malice as a defense ... 2101 IV. EVIDENCE. § 1911. Not necessary to prove officer’s commission ... 2102 § 1912. Malice and corruption to be inferentially proved 2102 V. Resistance To ILLEGAL ACT OF OFFICER. § 1913. Resistance justified ...................0000. 2103 § 1914. Defenses ......... a aude hehe, aoe aneearesanare seeeeee. 2103 CHAPTER XLII. LIBELS. I. Deramatory LIBELS. § 1915. Defamatory libel is a publication calculated to insult or injure the reputation of any person 2106 Ixxvi § 1916. § 1917. § 1918. § 1919. § 1920. § 1921. § 1922. § 1923. § 1924. § 1925, CONSPECTUS. Test of injury is provocation to wrath or ex- posure to public hatred or ridicule ....... —Hence the imputation of crime is a libel .... —And so of reflecting on a man in his trade or Hvelhood: ssi. 5. cs aoek aehixinen tesa ae —And so of whatever is the subject of civil action without special damage ............ And so of villifying deceased persons .... —But there should be w limit as to time .... Unconscious or helpless persons are thus pro- GOCLED: sei eadises iste, aectase nate maser aoe eutie evant unis, Sunes Corporations may prosecute for libel ......... Unwritten words not usually libels ......... —But otherwise as to pictures or signs ...... {I, BLASPHEMOUS LIBELS. § 1926. Blasphemy indictable at common law ....... III, Ospscene LisExs. § 1927. § 1928. § 1929. § 1930. § 1931. Obscenity indictable at common law ......... Philanthropic or scientific intent no defense .. Procuring obscene prints for distribution is in- GICbADIS ee sania dco | unre Re aveonnien seach auteentieewd 6 Obscenity need not be fully set forth ......... SGLENCOR eo eoa. sensed fo Mae ade mae fa elalohe 8 Sa IV. Sepitious LIBeExs. § 1932. § 1933, § 1934, § 1935. § 1936. § 1937. § 1938. § 1939. V. PUBLICATION. § 1940. § 1941. § 1942. § 1943, § 1944, § 1945. § 1946. § 1947. § 1948, Libels aimed maliciously at the existence of gov- ernment indictable ...................0.. —So of libels on executive ......... doe sroe oY —So of libels on foreign powers ............. —So of libels on legislature ........ siasiemers —So of libels on courts ...............-.0.. Seditious words may be indictable ........... Slander of magistrate ..............-....0.0. Public officer prosecuting need not prove his SPpOintMient: -ocpeiaceg dae sp Gow ae Rear To be seen by third person ....... Hapa ae When libel is in sealed letter, intent to provoke breach of the peace must be charged ...... —Venue may be in place either of mailing or delivery: cadens rid tig can otc ene aneger nage —Postmark may be evidence of mailing ...... Selling is publication ..................005. Instigator is principal ...................0.. Printing not per se publication .............. Circulation proof of publication ............. Of nonobtainable libel parol proof is ad- Missible wciegasediarwage ss awece s PRB e ee 2107 2110 2110 2111 2112 2112 2113 2113 2114 2115 2115 2121 2125 2126 2126 2127 2127 2129 2130 2131 2132 2132 2133 2133 2134 2135 2135 2136 2136 2136 2136 2137 2137 CONSPECTUS. Ixxvii § 1949. Master responsible for servant ...+++02..+.-. 2137 § 1950. Admissions may prove libel ......... eeseecee 2138 § 1951. Corporation may be indicted for libel ........ 2139 VL War CoMMUNICATIONS ARE PRIVILEGED. 1. From the Relation of the Parties. § 1952. § 1953, § 1954, § 1955. § 1956. § 1957. Prima facie confidential personal communica- tions are privileged .............. ee eeeaee Meddlesomeness is the test ................. Master’s character of servant is privileged .... —So of bona fide communication by directors of companies .......... cece etc e reece eaee —So of bona fide business publications ....... —So of communications by commercial agencies, OLG. ry kGuosculetsdauaioas beam teu ehae sean 2. From Public Policy. § 1958. § 1959. § 1960. § 1961. § 1962. § 1963. § 1964, § 1965. § 1966. Legislative speeches and proceedings are privi- NEBOO: cee sks wunabes Gok We AREA «eR dae —So of official reports ................0000. —So of communications to electing or appoint- ing power as to candidate ................ —So of professional publications by counsel .. —And so of evidence of witnesses on trial .... —And so of legal proceedings ............... —So of criticism of public abuses and wrongs, and of literary and artistic criticism ...... —And so of discipline by voluntary societies —So of publishing in legitimate self-defense .. 3. Practice when Privilege is Set Up. § 1967. Question of privilege for court .............. VII. TrorH, WHEN ADMISSIBLE. § 1968. § 1969. § 1970. § 1971. g 1972. § 1973. At common law truth no justification ........ When purpose is honest, truth may be admitted to disprove malice .............- see eeeuee Under statute admissible on condition ........ Truth and honesty no defense when publica- tion is malicious ......... 0... ee eee eee Justification must be as broad as the charge Common rumor or hearsay no justification ... VIII. Matice, How Provep AND REBUTTED, § 1974. § 1975. § 1976. § 1977. § 1978. § 1979. § 1980. Malice need not be special .................. Publisher not excused by his ignorance of Contents. sic seena eas ceed wieaneeunn wal dete alates coh Question of malice for jury ................. Other libels admissible to prove system .,.... Whole publication admissible ................ No defense that libel was a joke ............ Counter evidence of good motive inadmissible 2141 2142 2142 2142 2143 2145 2145 2146 2147 2147 2149 2150 2151 2151 2153 2154 2155 2156 2156 2157 2157 2159 2159 2160 2160 2160 xxviii IX. INDICTMENT, § 1981. § 1982, § 1983. § 1984. § 1985. § 1986. § 1987. § 1988. X. VERDICT. § 1989. XI. THREATENING § 1990. § 1991. § 1992. § 1993. § 1994. § 1995. XII. DEFENSEs. § 1996. § 1997. ESCAPE, CONSPECTUS. Publication must be averred ...... ceeececoss 2161 Libelous matter must be exactly set forth .... 2161 Indictment must profess to set forth words of TDG) «ac. plaisl 2 tesketalhts Ba AA RERI OY cocoon Bede panei 2162 Authorship must be averred ..........-...-. 2162 Libelous matter must be charged to relate to Prosecutor’ 420-2 genes ste emagners cee aaa aeie, 2163 Innuendo can interpret but not enlarge ....... 2164 Truth of innuendoes for jury ............- .. 2166 Unobtainable and obscene libel .......... see. 2166 “Guilty of publishing only” is insufficient .... 2166 LETTERS—BLACKMAILING. Extorting money by threatening letters is in- MiClable: 2.5 sive itoamwdan mera ein NURS ae 2167 Letters may be explained by parol .......... 2169 Material facts must be averred and proved ... 2170 Sending a question of fact .................. 2170 Threats to destroy and kill indictable ....... 2171 Sending letters threatening murder a felony .. 2172 Generally .......... 0. cece eee enes voeeaee eee. 2172 What is not a defense ..........0.eeeeeeees 2174 CHAPTER XLITI. BREACH OF PRISON, AND RESCUE. I, AGAINST OFFICER For ESCAPE. § 1998. § 1999. § 2000. § 2001. § 2002. Escape is permitting prisoner to depart from custody xy shecocier 23 DO cheeses ai 24 Eleventh Present Edition Edition DD led aranlaunide cate 26 QQA- wise 8d 27 DS wee cxweeewes 28 Q8A> ses eeees 29 DAS pSsca te ie aba 30 DD ee urseeuteenig 31 Oe cee ane Meee 32 OF yy ixaluae 33 OT. (2) «caw 34 BYR) acecus 35 QT (4) veces. 36 OF AG cscs 37 OF (Gi-raeess 38 Das: areeveksaetes 39 28) os eew wees 40 DO arp saaussar lafatea sae 41 BO! sc swiaiss esos 49 Billy aseseha et eanal aes 43 Bil By ce wcesee eters 44 B1bi scasase-s 45 Chap. III. BO nt aca 46 5 ph panels 47 Be phoaueses 48 RS Ob, acaesa 49 Dae wee tae 50 Eleventh Present Edition Edition So Ds wate 52 DO. sareieraiahaldcas 53 BU Ga Reser rss tae 54 OB: wy wee wears 55 OO Sis i alesis 56 BO iis aie 3s stay 57 AL dela Seema eaten 58 BD ite sceane ee 59 BD, aia tutte cere ese 60 A oe incaen a aay 61 45 suc wwe saas 62 4G sais ee eee 63 OT stn Renee’ 64 1B ceushdieie seed 65 BO srespegareiaut 66 BO ce pees 67 Dis, ace aetaceetene 68 D2 6 Sku wees 69 DD: so ahs aye eee dong 70 DAN bear duc a 71 BD: ee eiaie sue sevens 72 DOS ars diced ag ane 73 BT iskacars cg see 74 BUA: ee. grew x 75 DS seas oa aceon 76 DD) aioe, sia lads ahaa T7 CO cvcsewesen U8 xeii Eleventh Present Edition Edition Ola cries 6 79 G2: cessor es 80 OS ee Sundss ae anes 81 OF, cc ieacaeea aie 82 65 eS eeibien 83 6G echoed tac 84 OF esc abe we 85 OS vaidseol tal ots 86 69 nate eee 87 (0° es ontenens 88 Tl tesa teserseatiece 89 1D) Rate a Peas 90 WB een ia a ae a 91 A se Tecate dns as 92 Deka aha Ng ree 93 16 ses aawees 94 Ld eee eee ee 95 UB ies arleaceien 96 CD Geshe Sa eaeeys 97 80 esegee 98 81 sacar es 99 82h sce ave Savas 100 BSP eetehs tase ts 101 BAS ae hea eie as 102 85. eiseieea 103 B58 esis 104 SBD. scainacerecs 105 Sts abece, 106 BP dg co uaaheistes 107 88 pt. ..... 108 88 pt. ..... 109 88 pt. ..... 110 88 pt. ..... 111 88 pt. ..... 112 CRIMINAL LAW. Eleventh Present Edition Edition 89. ss csee we 114 DO see Sia tea ohs 115 OV. ew eerie 116 — by iew ees 117 =) ssa wary 118 Se autora nna 119 =. genreaws 120 So ealgtate acs. 121 99 seeceew¥ 122 OS Goearey 123 DAs iccecauatiaker 124 948. eee es oes 125 95 knew aude 126 OG. seeaeess 127 OT win cetins 128 OTA dik cake 129 98: savvewss 130 OO” card aees 181 LOO oe cede 132 LOL veewass 133 LOD vs sires ecdsei 184 10S) ee eves 135 Ba a iret fae 136 Chap. IV. LOG esas 137 LO’ sansa 138 LO Bae bcchate lepac’s 139 109) sees 140 110 eeseeges 141 WD. -s, igevigeee ss 142 SEES Seed bnera aclete 1438 DD ela ess eae 144 LIS vase execs 145 oy tei ei ale tate 146 SS) atetiale -. 147 Eleventh Present Hdition Edition 14 a3 ae eae 148 TIS. ee neges 149 DTG pe igseseana 150 TT eon eue es 151 see es 152 TPB eee 153 TUS wcesieees 154 TG Srccte ees 155 ah dig We Senerens 156 120 .scsewws 157 VOD ere au six 158 Tee iores 159 193 2 swecaws 160 DACs dea 161 Chap. V. 125 coats a8 162 126 wi aarecuaes 163 127 aeaeees 164 128 seecawas 165 D202 oar teas 166 DBO iiagisvarse 167 1808. ssecsas 168 13d gadis 169 LB Uia eas cars 170 182) waeesvws 171 ABS) sees edie 172 LB 4s ase cepenietiets 173 LBD! asics tates 174 Chap. VI. LG) seseseot aces 175 LSC Skea k 176 138 ........ 177 TBO nesahawahe 178 V4 Os aiera'sss 179 1A pee eee .. 180 CRIMINAL LAW. Eleventh Present Edition Edition ITS a eisein, 214 VIG acarvin 215 TTY siete is 216 ANTS Svocxtoaters 217 V9 aacceaces 218 180 x eccews 219 NSD: ssp ecece ote 220 ABD: s.sceeeecene 221 ESS sceeeae’s 222 VS 4 rccte alas 223 TBD bareccseece 224 186 sc ewwarers 225 VB Tire tacchates 226 LBS) aaueiseesi-c 227 189: Ss scwin esx 228 190) sajee Sees 229 VOL wav eweas 230 LOD sx ccemarare 231 1D Breas ee stane 232 TOD es sissies 233 196 weieecne 234 VOT cirowewacs 235 WO Be ie ctsbende ds 236 199) sc enerwe 237 200 sad eens 238 Chap. IX QOD wi coisa yc 239 DOG ewan. 240 DOT eee ees 241 DOB: ies sient 249 DOD 5 ays ahin Ga ae 243 Q1O saxiedas 244 DA saxireseceistiare 245 Q1la....... 246 Q11b....... Q47 xeili Present Edition file aes 248 xciv CRIMINAL LAW. Eleventh Present Eleventh Present Eleventh Present Edition Edition Edition Edition Edition Edition DAB cecacsya ies 283 D2 e.g sae ee 317 eee eee 351 24k ........ 284 DIS vie bl geese 318 a Bea eos 352 245 oxcie aes 285 OTE ease 319 Sieur 353 246 ........ 286 DD ates 320 ek Bi een eh 354 DATE catatonia 287 DEG Kaw ease 321 See ae Rae 355 DAS seseuateaees 288 Die siciocaaes 322 idlew alee 356 DAG os eeserap ae 289 DB sick ee eedts 323 — ..eeeeee 3857 Chap. X QTD caeeaees B94 hve e ees 358 = Kedaieaius 290 280 2ieeeves 325 — .oeee ~.- 359 Saag sie 291 DE seraccdiaty ets 326 ee 360 — hie eeeen 292 282) 4 ee wands 327 eee aes 361 DOD ieee d 293 2828 Auenek 328 SP eager 362 DOB. sieve sala ee 294 DBO) seceieial avs 329 St caplaniatla needle 363 DOA lace eran 295 DBE ee tani: 330 Chap. XII. QOS ws aacea cers 296 285 ....... 331 ap gine 364 DOG sseneaias 297 286 ....... 332 SS horehes tte 3865 DOT deseo 298 DBT teedolcos 333 > os eae ee 366 DOG aieieeiwe ores 299 288 (pt. wove es 334 Sis ete 367 259) eeu eatews 300 288 pts sacs 385 — beer ede 368 260 ....... 301 289) oa cares 336 Sate eee 369 DOA) SP cmecedgias’ 302 290) iene a e's 337 en anlencalevese se 370 DB scare iematin asc 303 DON Sakeg res 338 a 371 268 avai sary s 304 292 pt. ..... 339 geeks 372 DG sake es 305 292 pt. ..... 340 St atl oath euate 37 QOD: gece graneiess 306 292 Pte eines 341 SS aa als We 374 DOG wee cele 307 2920 ...... 342 Bg ed ang tee 375 ORF och B08 998 oo 51.5, 348 Chap. XIII. QOS wei wig ies 309 DOB eosary 2% 344 Sc eipil aatdank 376 ee 310 DOD -otia lay 345 SS epee 377 aka ees 311 Chap. XI. —Gasnend 378 DOO ooo wate 312 SAG aa apace 346 Se ies eres 379 D1O wack s ares 313 Se ianaree 347 Saline raw 380 DUO BS ba wate x 814 —........ 348 Se ahd ce @ aaa 3881 = pageneed 815 ate eiley ass 349 Seine ies 382 QTLs eae Gee 316 oo ete aero 350 SS Shao 383 Fleventh Present Edition Edition CS earth vetoes 384 ieee 4 385 eS pull duns tes Os 386 Seales & 387 ag peut a 388 SS wih fe 389 Sha dea 390 Sai aaaenaelasd 391 ae 392 Sean ee 393 Talents 394 —) Beeman 3895 Ce Te ree 396 == ews ted 397 Sy eieneusiahaus 398 = eveee wn 399 bye anes 400 == Borsa 401 Sieh raed 402 SS aieekaies 403 Fish whe ein AR 404 Se gaatelgueteles 405 seaweed 406 i) Qe tiane de 407 Sh le le lela piece 408 — eee eee 409 SS ele eine 410 SS a ws eat 411 ee ee 412 = wan eo a 413 SS" gawie sacs 414 Bes: Shara eeiseats 415 mS Lape eaenave 416 Chap. XIV CRIMINAL LAW, Eleventh Present Edition Edition 808 ....... 418 Pe dient lalate! & 419 eS ara ics eA 420 804 Dh. sane. 421 Soaie ee ahs 4292 = asthwaaies 423 B04 Dik gauss 494 Sea lal rae 425 BOD gieacwies 426 B06 vie sale ais 427 BOT weave 428 BOS! secscasacs 429 B09 cea aiceia 430 309a ...... 431 309b ...... 432 GLO’ wapewate 433 SLL icici 434 SSS Tedghn shatuses 435 BLD 5 wees 436 B18) wcriwcws 437 DUAS 5 seie 35 cea 438 B15 a saais es 439 3816 ....... 440 317 ....... 441 818 keene 442 319 pt. .... 443 319 pt. .... 444 B20) wwe ae 445 ODL tet aditeas 446 SOD. faletetets au 447 B23: «aiawws 448 BOE we gated 449 BLD” egrets 450 B26 ewe snes 451 BO es witeciaeas ie 452 xcyv Present Edition eee 453 xevi Eleventh Present Edition Edition 868 ....... 488 BGA s neewas 489 365 nev ewes 490 BOO se ecccy ace 491 BOT sawn es 492 BOS! avira 493 BOO! i535 eases 494 BOM caw eiva's 495 Side 2 vewinets 496 OID) oan 497 BB ois be Mace 498 3738a ...... 499 B74 ....0.. 500 SED? saedarey 501 OO ce tehetecele 502 DATE tesatias ier 503 OES Madaceeevesees 504 B19 saexeas 505 BOO geeag pier 506 io) Meeaaeeererars 507 OS ana vas 508 B88 egine we ee 509 S84 oeacnwes 510 O80 wien es 511 BSE wie eae 512 OSU. eabeweeg 513 BOO jeimwdeians 514 BBO wegen 515 BOO! ess wines’ 516 DO Le atin saatots 517 B92) we aecies 518 893 ....... 519 BOA views 520 BOD es ea 521 B96 seceexs 522 CRIMINAL LAW. Eleventh Present Edition Edition BOT eis wes 523 BOB cele ated 524 B99 se ewe 525 399a ...... 526 400 ....... 527 AOD pg Sees 528 402 ....... 529 4O8 heap ei ces 530 AQ A sis ex alans 531 405 ....... 532 AQG icin: siaiycaes 533 A0T ....... 534 AOS: wie ewais 535 BOO. is Sesion vent 536 410! sie cues 537 BVA. -cuspia eine 538 ALD ca sis aierers 539 BIB isc eis ea 540 414 ....... 541 BLD asses 542 ALB) scien 543 BU a eecacacat 544 AB Sen paces tae 545 BAO rca crete 546 420 viaeeis 547 BO \ secretes 548 422 Sas 549 423 ....... 550 a 551 ADD occa ai dap ete 552 46 ee eaces 553 407 1.0.4... 554 B28 eee ica wy 555 BOD oan ate 556 Eleventh Present Edition Edition ABA sc fSee' 558 4239 weiwe es 559 4S) ge ea es 560 BAe ist sheiie 561 435 wise ews 562 ASE: p04 eats 563 ABT soekcainas 564 ABS) i eseie cies 565 ASO” sy sie Bassi 566 440° csewe nis 567 441 ....... 568 ee ae 569 BAD: cma ate 570 444 , 2 571 446 saxewes 572 AAG ceo tiiss 573 BAN ele’ 574 AAS era 575 Co! eee 576 450 wees 577 AO =e Save teiee 578 ADD. eelevisese 579 493 gaaeues 580 BOE cee es 581 455 ....... 582 455a ...... 583 BDC. Areas 584 ADT cena we 585 FOB iced Sars 586 BOO! cera 587 460) sa eneen 588 46). hacyohe gis 589 AOD tea iaceecs 590 463 ....... 591 BGA ss or sie take 592 CRIMINAL LAW. Eleventh Present Edition Edition 497 sees ean 628 BOB ose vies 629 reer 630 500 ....... 631 DOM as esas ous 632 502: coerce 633 BOS eer: 634 DOA 6 seis ech ay 635 DOD. aise eave 636 BOC eicccccin’s 637 50% aie 638 DOB: sseee bis 639 DOO ieee ds 640 D010 wvvine 641 DLL ese awles 642 ee eae lear ee 643 BID ease ax 644 DID4 eweawee 645 DLs seg eee eh 646 O14 vuevans 647 OLD sie ee 648 DG» isi eeta sen 649 BIT: seas 650 DLS wacueers 651 DLO) iste 652 DZO: sass eave 653 B21. vawewe 654 DID Saye Geis 655 DZ. wea elec 656 O24 was eee 657 B20 eye ees 658 5260 secaaes 659 DOT wavs akiats 660 DOB wea chews 661 520 cinco 662 xevii Present Edition ai ielapt as 663 xeviii Eleventh Present Edition Edition DDS sedeies 697 ae 698 DDG sewn esi 699 BOT ibs wetis 700 BOB. ecco wie ane 701 059" sich eis 702 560 ....... 703 OGL. we veuaes 704 562 ....... 705 562a ...... 706 BOS! araieaieare 707 BOS grees 708 = ware eed 709 PSE oan age hau 710 ee eS epato ais 711 SE sth aaiane % 712 Saeed a 713 — eee nw ees 714 SS aus 715 SE ite ease 716 as! eas ew es 717 PST aceetens 718 SS isaiad 719 = ahwaenes 720 BOS. sears es 721 — eaveekas 722 Sia si oem ah 723 566) ces ees 724 BOT aa tewecn 725 and ernsees 726 Hains 727 — eeeeeads 728 a Leary aress 729 ee 730 PE Geld eghwasarahs 731 CRIMINAL LAW. Eleventh Present Edition Edition Galea a 732 ee 733 > wie sie s 734 Se en eeeuary 735 568 ....... 736 See hieus 737 DID x eaeo vs 738 BTA DE occas 739 Ss ean 740 B74 pt... 741 BG. hacen ais 742 DTS cela 743 569) cas nec 744 570 ....... 745 DTD> asec 746 = eeeuaiee 747 B16 sisre wcetes 748 576a ...... 749 BT -eikee es 750 BGs fe feted ta 751 Sai Sse eaeelve 752 Chap. XVI. ha eaenmen 753 579 pt. ..... 154 Sls beaies 755 Se Bea cna ate 756 Seeks 757 579 pt. ..... 758 Ss mig aire take Sates 759 BIO pile wane 760 Ae eS 761 580 ....... 762 SS neh ewes 763 = ge eeeuwe 764 Str csiaiatetes 765 Eleventh Present Edition Edition Chap. XVII. B81 ncn 766 582 ascevan 767 DSS” eanedew es 768 BSA ee svatetere 769 2) a din ee 770 sete sees 771 Chap. XVIII. BBC wc 772 DST ace ges 773 588 ...cese 774 DBO saiwsceiees 775 590 ise ek 776 DOL wae news TTT SS aheee 778 SS wig eared 779 seal dy ye 780 Chap. XIX. 592 sewecews 781 DOO? sowie 782 SS Shes aa ee 783 — biwaee es 784 — Loe eee. 785 BOL weneeeeG 786 DOS asicww we 787 DOS esac 788 BOG ssawee. 789 DOD anh 796 B95 oc ees 791 mS ai Ae aes 792 St eben 793 Chap. XX. 600 ....... 794 GOL. .ckenss 795 GOD esse 796 Chap. X XT. CRIMINAL LAW. Eleventh Present Edition Edition 6845 ais ued one 831 O85 sen wears 832 686 ....... 833 GOT. sasceeen 834 688 cccees. 835 639 ise ges 836 640 ....... 837 640a ...... 838 G41 ceases 839 641a ...... 840 BAD ose aes 841 C438 wesiasas 842 C44. oo odio nus 843 C4. ieireaials 844 6458, ceca vs 845 645b ...... 846 645¢ ...... 847 645d. es. a84 848 G46: sands 849 647 ....... 850 G48: aes wees 851 O49! ates 852 GDO? cuca 853 65) saw cus 854 GOO va ated 855 652a ...... 856 Chap. XXIT. 653 pt. ..... 857 653 pt. ..... 858 604: oes gas 859 65D weww dacs 860 656 aewaa en 861 657 6 wens 862 658 a waseiee 863 xcix Present Edition ates 865 ce Eleventh Present Edition Edition 695) ceceans 900 GIG okies 901 GOT -wenasess 902 OOS ovaea ces 903 699) sce 904 TOO! asec is 905 EOI! Scecchaleoass 906 MOD eset eck 907 COS seeker 908 HOS eo eees 909 HOD: owas eee 910 TOG ce Gaas 911 GOT setate aces 912 108: sak oe ace 913 TOD asci ies 914 MAO” Scotts 915 TL Gi aceieies 916 ELD teens athe oe 917 TAB) os ewes 918 714 ....... 919 POLO bereuuaNs aie 920 TAG! ia cise yo 921 TAT iteecaca 922 ONS: sts 923 MND. eens secs 924 020° seve gestae 925 Mee costs ora dete 926 WDD? sete a 927 (23 wens 928 MDA Sa cia 929 HDD forsee 930 WG ermie ig ects 931 NOT wise 932 128 wigs eontes 933 728a ...... 934 CRIMINAL LAW. Eleventh Present Edition Edition TOO) set utees 935 TBO) Sa witews 936 Be na se tecaia sn 937 (O0% wepawes 938 $88 aeawa ee 939 TOA. sacs yas 940 TBDe Saisie tke 941 TBO eines 942 (BL ea bs Ses 943 188 saawwes 944 939 sepia es 945 740 ....... 946 7:0 eee eee 947 MAD eats hay 948 HAS sve wes 949 T43a ...... 950 T44 ......, 951 TAD pilot 952 TAG cwcdeees 953 TA. ee aaa 954 748 oo... 955 749 1.0.2... 956 TOOe aes ciese ss 957 MOU six ne But 958 102. eee e 959 OO aera 960 TDA seas 961 TDD Seca ees 962 SOS aes 963 Ss eteveraus a bes 964 ee ees 965 (BB wakes 966 ee dg a ae 967 Nees eats 968 Eleventh Edition a eee cene eevee ee eee sew eee een ene eee eae a ry eee ewe ee eee ee reece cee ewe ry eee eee see eee eee eee a see e ee eee ene eee eae ee eee e eee eee soe vee eee eee een eos een cene eee soe eae eee Present Edition . 969 CRIMINAL LAW. Eleventh Present Edition Edition 820 ...... 1039 BPA. seaiecae 1040 B22! comincaners 1041 Sarg ce sears 1042 re ly erase 1043 HS & cams 1044 Aisin muds 1045 Bat NE ae 1046 a Ay aieewl es 1047 tah tehnaetleds 1048 Chap. XXIV. B25: wctewans 1049 Se eateaaweacy 1050 — senna 1051 = gawlend 1052 B26 sce cee 1053 BO cecncicen 1054 B28) sesieisces 1055 Pe etistinlebstiets 1056 829° scwaiae 1057 830 ...... 1058 BO1 tecenas 1059 B89. gece area 1060 Sr thane Giavet 1061 oo aamiates 1062 833 scenes 1063 834 ...... 1064 BSB a leiceccs 1065 835a ..... 1066 836 ...... 1067 BO sesane ets 1068 838 ssecas 1069 839° weseee 1070 3 sesh eine 1071 840 «oe. 1072 ci Eleventh Present Edition Edition AM hs dieters 1073 gigas 1074 B49) ecm 1075 SAB! saiyecnes 1076 eg aeaeta aes 1077 SS yaeeiiatlis 1078 B44 sees 1079 sols talladsiintes 1080 Chap. XXV. 846 ...... 1081 847 ...... 1082 848 ...... 1083 BAO sg wae 1084 850) xeseaes 1085 SOL. si aicesnase 1086 BOD shears 1087 853 ceces 1088 SOL co misyeans 1089 BDO -vsholaaians 1090 856 ...... 1091 87 ew ies 1092 808. scecy cut 1093 Chap. XXVI. 862 pt. .... 1094 862 pt. .... 1095 862a pt. ... 1096 862a pt. ... 1097 B63 sone cals 1098 864 ...... 1099 865 enti 1100 866 ...... 1101 B67 oe seen 1102 868 ...... 1103 869 scenes 1104 870 ...... 1105 cil Eleventh Present Edition Edition STL essees 1106 BLD i oanes 1107 BTS) sess 1108 874 ...... 1109 SID seseias 1110 B16) wisews 1111 SUT. eaeace 1112 SUS swe: 1113 879 ...... 1114 880 ...... 1115 SOM sss 1116 882 ...... 1117 882a ..... 1118 882b ..... 1119 883 weeses 1120 B84 ewan 1121 884a ..... 1122 885 ...... 1123 BBO sieves 1124 BET sea eaes 1125 888 ...... 1126 889 ewes 1127 890 ...... 1128 BOL sashes 1129 S92. we eee 1130 B98 aces 1131 B94 awseas 1132 890s Bees 1133 B96 .ceewn 1134 B97) eaeeas 11385 898 seciws 1136 B99 acetic 1137 900 ...... 1138 901 .... 1139 902 ...... 1140 CRIMINAL LAW. Eleventh Present Edition Edition 903 w2c24: 1141 904 ...... 1142 905 ...... 1143 906 ...... 1144 DOT sissescee 1145 908 weesae 1146 909 ...... 1147 9100 scses 1148 OAS seacerinay 1149 DID. se setsusees 1150 918) seco 1151 914 ...... 1152 QD ba sis ow 1153 916 oe. ees 1154 O1T avasas 1155 91S: bseaers 1156 DLO» sacsseeces 1157 920 ...... 1158 OE athe esa 1159 OF sesnsaesnls 1160 923 ...... 1161 924 cee eae 1162 925. weenie 11638 926) seein 1164 OD G twas 1165 928 Sites 1166 929 aeees 1167 930 ....... 1168 931 sexcse 1169 992 ects eiais 1170 932a ..... 1171 933 ...... 1172 934 ...... 1173 935 ...... 1174 936 oe. 1175 Eleventh Present Edition Edition 93% gsewes 1176 938 ...... 1177 oo ee 1178 940 ...... 1179 94D oka 1180 DAD. wire atte 1181 DEO eacak ener 1182 044 ceeues 1183 945 1.2... 1184 946 ...... 1185 OAT eave seas 1186 O48 we cats 1187 949 ase as em 1188 95.0 J6. letras 1189 901. wexcea 1190 DDD) Ss sere ie 1191 DDB: sierae iste 1192 DE wena aie 11938 ODD. aliases 1194 956 sees xe 1195 OBE sesscs 1196 958 ...... 1197 95 OF ariai ane 1198 960 ...... 1199 961. eassas 1200 962 ...... 1201 962a ..... 1202 962b ..... 12038 963 seenas 1204 964 wae 1205 QOD cous nsts 1206 966 saswars 1207 967 ...... 1208 DOS ware uty 1209 969 ...... 1210 CRIMINAL LAW. Eleventh Present Edition Edition DOT) dwar 1245 998 cesses 1246 0 ase aece 1247 1000 ..... 1248 1001 ..... 1249 1002 ..... 1250 1008 ..... 1251 1004 ..... 1252 1005 ..... 1253 1006 ..... 1254 PSS Sate Net dels 1255 Chap. XXVIII. 1009 ..... 1256 1010 ..... 1257 1011 ..... 1258 1012 ssces 1259 1013 ..... 1260 1014 ..... 1261 1015 ..... 1262 1016 ..... 1263 LOL. esc 1264 1018 ..... 1265 TOLD: s5.6 es 1266 1020 ..... 1267 1021 ..... 1268 1022 ..... 1269 10238 ..... 1270 1024 ..... 1271 1025 ..... 1272 1026 ..... 1273 10987 222s 1274 1028 ..... 1275 1029 ends 1276 1030 ..... 1277 ceili Present Edition 1279 1280 1281 1282 . 1811 Eleventh Present Edition Edition TOGH xcexe 1313 = gyuacas 1314 Chap. XXIX. TOGS nsw 1315 1066 ..... 1316 DOG? Sees ee 1317 TGS 2ebos 1318 1069 ..... 1319 1070" ssa 1320 VOTE sas 1321 1872 -ssaes 1322 1072a .... 1823 VOT. occas 1324 1074 occas 1325 LOTS vase 1326 1076 . axe 1327 TOUT cases 1328 10% seas 1329 1078 saces 1330 1080 ..... 1331 TO8L Sense 1332 1082 cesses 1333 1082a .... 1334 1082b .... 1335 1082c .... 1336 1082d pt. .. 1337 1082d pt .. 1338 1082d pt. .. 1839 1082d pt. .. 1340 1082d pt. .. 1841 1082d pt. .. 1342 1082d pt. .. 1343 1082d pt. .. 1344 oa gets oh 1345 CRIMINAL LAW. Eleventh Present Edition Edition Chap. XXX. 10838 ...... 1346 1084 ...... 1347 1085 ..... 1348 1086 ..... 1349 1087 ..... 1350 1088 ..... 1351 1089 ..... 1352 1090 ..... 13538 1091 ..... 1354 1092: esses 1355 1093 ..... 1356 1094 ..... 1357 L095 siceen. 1358 1096 ..... 1859 1097 ..... 1360 1098 ..... 1361 1099 ..... 1362 1100 ..... 1363 MTO, sep:24.9 1364 VIO}: isece 1365 11038 ..... 1366 1104 ..... 13867 1105 ..... 1368 1106 ..... 1369 DLO \a:2 205 1370 1108 ..... 1371 1109 ..... 1372 L110: -ase.5-0 1373 DITD eesaecae 1374 WDD esa 1375 TIUUS: esa 1376 as See 1377 Chap. XX XI. 1116 ..... 1878 Eleventh Present Edition Edition THOT sone ore 1379 ATS og ces 13880 DAT Oe eosin 1881 1120 ..... 1382 UTD eect ce 1383 F122) esses 13884 TT 23) eee 1885 TID 4 is sais 1386 1195) wins 1387 1126 ..... 1888 T19F sswea 1389 1127a 1390 TLOB. sesso 1891 1129) ssw 13892 1130 « 1393 LISA: ise 1894 a os) eres 13895 1183 ..... 1396 1184 ..... 1397 1138) aie 1398 1136 ..... 1399 DIB. eects 1400 1188 ..... 1401 1139 pene 1402 1140 cc was 14038 1141 ..... 1404 1142 naacs 1405 1143 ..... 1406 LTA. aes 1407 1145) axsas 1408 1146 ..... 1409 MA oan 1410 1148 ..... 1411 LIAS: ceasy 1412 1150 ..... 1413 CRIMINAL LAW. Eleventh Present Edition Edition 1184a .... 1449 1184b .... 1450 1184¢ .... 1451 1185 ..... 1452 1186 ..... 1453 VAST sickens 1454 1188 saaas 1455 T1890! sesdcoaya 1456 1190 ..... 1457 W191 scans 1458 1192) nears 1459 11938 ..... 1460 1194 aca 1461 1195 ..... 1462 LI9G. asescees 1463 W197 canes 1464 1198 ..... 1465 TOO esc 1466 1200 ..... 1467 1209. edges 1468 1202 ..... 1469 12038 ..... 1470 1204 ..... 1471 1205 ..... 1472 1206 ..... 1473 1907 swues 1474 1208 ..... 1475 1909 cece 1476 1210 ..... 1477 TOAD ees 1478 1212 ..... 1479 1218 ..... 1480 W214 cc ses 1481 IQS asics 1482 1216 ..... 1483 ev Present Edition 1484 1485 1486 1487 1496 1497 1498 1499 1500 1501 1502 1503 Chap. XXXII. 1504 1505 1506 1507 1508 1510 1511 1512 1513 1514 - 1515 evi Eleventh Present Edition Edition 1252) wesc 1516 1253 ..... 1517 1254 ..... 1518 1250. 5.20% 1519 1256 ..... 1520 TOS T wicca 1521 1258 ..... 1522 1259 2.25. 15238 1260 ..... 1524 1261 ..... 1525 1262 ..... 1526 1263 ..... 1527 1264 ..... 1528 1265 ..... 1529 1266 ..... 1530 1267 seeass 1531 PIGS: steers 1432 TOO ise as 15338 T2270 seek 1534 TOTS cosets 1535 MOTD) assis 1536 T2738) cues 1537 1274 ..... 1538 IDTS ces 1539 D2 06Y cece 1540 DOT eclucaxs 1541 1208 sexes 1542 1279 .aews 1543 LDS O° vere 1544 1281 eas 1545 1288 > ep aiareys 1546 1283 ..... 1547 1284 ..... 1548 1285. s.wse 1549 1286 ..... 1550 CRIMINAL LAW. Eleventh Present Edition Edition 1287 ..... 1551 1288 owidees 1552 1289 ..... 1553 1290 nee. 1554 T2OA es sacs 1555 102 eects 1556 1D OB smenay ec 1557 1294 ..... 1558 1295 ..... 1559 1296 ..... 1560 LO9T seins 1561 IDO Bon eres 1562 T2909) ease 1563 1800 ..... 1564 13801 ..... 1565 1802 ..... 1566 1803 ..... 1567 1804 ..... 1568 13805 ..... 1569 1306 ..... 1570 1807 ..... 1571 1808 sess 1572 1309 ..... 1573 1310 ..... 1574 ABIL sesxigecs 1575 1312 ..... 1576 1813 seas 1577 PBdA acai 1578 VS15. ececsecs 1579 1316 exes 1580 Bd sacs 1581 1818 ..... 1582 1319: ose. 1583 1320 ..... 1584 1321 .. 1585 Eleventh Present Edition Edition 1322 eipceiers 1586 1828. nasa 1587 1824 ..... 1588 TB 29 esses 1589 1826 ..... 1590 1890 ivews 1591 13828 ..... 1592 1329: sas 1593 18380 ..... 1594 TB BM ves: 1595 13382) se6ee 1596 1833 ..... 1597 13834 ..... 1598 <= werk eu 1599 Chap. XXXIV. 1337 sean 1600 1338 ..... 1601 1339 ..... 1602 1840 ..... 1603 1340a .... 1604 13841 ..... 1605 1341a .... 1606 1342 wean 1607 1343 ..... 1608 1844 ..... 1609 1845 ..... 1610 13846 ..... 1611 1347 ..... 1612 1848 ..... 1613 13849 ..... 1614 1350 ..... 1615 ASSL. ecse wus 1616 1852 ..... 1617 1353 ..868 1618 1354 ..... 1619 CRIMINAL LAW. Eleventh Present Edition Edition 13888 ..... 1655 1889 ..... 1656 1390 ..... 1657 1391 ..... 1658 13892 ..... 1659 13893 ..... 1660 1894 ..... 1661 13895 ..... 1662 1396 ..... 1663 1897 ..... 1664: 1898 ..... 1665 1399) ssc c 1666 1400 ..... 1667 TAOT csseee 1668 1402 ..... 1669 1403 ..... 1670 1404 ..... 1671 1405 ..... 1672 1406 ..... 1673 1407 ..... 1674 BS ee ohiete ii 1675 Chap. XXXV. 1410 w.ace 1676 WATT ese 1677 1412 ..... 1678 T4183 - wees 1679 TAL 4 cc eeg 1680 1415 ..... 1681 1416 ..... _ 1682 1417 ..... 1683 1418 ..... 1684 1419 ..... 1685 1420 ..... 1686 1491 wanes 1687 1422 ..... 1688 evii Present Edition 1689 1690 1691 1692 1693 1694 1695 1696 1697 .. 1698 .. 1699 . 1700 1701 .. 1702 . 1708 1709 1710 1711 Peuey 1712 1713 1714 1715 1716 1717 1721 1722 1723 eviii Eleventh Edition 1408> x ees 1480 ..... Present Edition 1724 1755 1756 1757 1758 CRIMINAL LAW. Eleventh Present Edition Edition 1481 ..... 1759 1482 ..... 1760 1483 ..... 1761 1484 ..... 1762 1485 ..... 1763 1486 ..... 1764 1487 ..... 1765 1488 ..... 1766 PSs eee 1767 ease seas 1768 — swe eeos 1769 tee) 1770 eldest 1771 Boe Leta 1772 aS eee 1773 ee 1774 Chap. XXXVI. 1490) wuss 1775 AAO e seseunie 1776 1491a .... 1777 1492 ...,.. 1778 1493 ..... 1779 14904 seews 1780 1495 ..... 1781 1496 ..... 1782 1497 ..... 1783 watealy 1784 Shap. XXXVILL. 1498 ..... 1785 1498a pt. .. 1786 1498a pt. .. 1787 1498b .... 1788 1499 ..... 1789 1500 ..... 1790! 1500a .... 1791 Eleventh Edition 1501 1524 1525 .. ee eee owen. eee ee eee oe ry ay eee Present Edition 1792 1825 1826 . XX XVIII. CRIMINAL LAW. Eleventh Present Edition Edition Tay gous 1861 i re 1862 Pee so :6ae 1863 Lh: ee 1864 1849. eas 1865 THO ears 1866 Looe 1867 155 vga 1868 TS58 > cowes 1869 16H ies 1870 1 ee 1871 1556 ees 1872 1556a .... 1873 aoe Tk Chap. XX XIX. 1557 ..... 1875 ees! Ti TS Chap. XL. 1559 ..... 1877 1560 ..... 1878 ee ey ne 1879 Chap. XLI. 1563 ..... 1880 1564 cose 1881 TSOS: echsx 1882 1566 ..... 1883 1567 ..... 1884 1568 ..... 1885 1569 ..... 1886 VAIO 2a een 1887 O71 senas 1888 1572 ..... 1889 1572a .... 1890 1572b .... 1891 1572c .... 1892 cix Present Edition Eleventh Edition 1572d .... 1893 1573 ..... 1894 LBTA even 1895 1575 ..... 1896 L576 sare 1897 OTT ciate 1898 1578 ..... 1899 TOTO esi. 1900 1580 ..... 1901 1581. ccsas 1902 T58 2° estate 1903 1583 ..... 1904 1584 ..... 1905 1584a .... 1906 1585 ..... 1907 1586 ..... 1908 158% seus 1909 1588 ..... 1910 1589 ..... 1911 1590 ..... 1912 1591 ..... 1913 — ..... 1914 Chap. XLII. 1594 2aees 1915 1595 ..... 1916 1596 ..... 1917 1597 eens 1918 1598 ..... 1919 1599 ..... 1920 1600 ..... 1921 1601 ..... 19292 1602 ..... 1923 1603 ..... 1924 1604 ..... 1925 1605 ....... 1926 cx Eleventh Present Edition Edition 1606 ..... 1927 1607 ..... 1928 1608 ..... 1929 1609 ..... 1930 1610 ..... 1931 IGI1 sews 1932 1612 - soe acy 1933 1612a 1934 UGS: wscaees 1935 1614 ..... 1936 IGIS wesc 1937 1616 ..... 1938 1617 sa.us 1939 VOUS waceaa 1940 1619 ..... 1941 1620 ..... 1942 1621. ccness 1943 16220 cssc0s 1944 1623 ..... 1945 1624 ..... 1946 1625 ..... 1947 1626 ..... 1948 VG Os seis 1949 1628 ..... 1950 1628a 1951 1629 ..... 1952 1630 ..... 1953 1631 ..... 1954 1632 ..... 1955 16382a .... 1956 1633 ..... 1957 1634 ..... 1958 1635 ..... 1959 1636 ..... 1960 1687 ..... 1961 CRIMINAL LAW. Eleventh Present Edition Edition 1688 ..... 1962 1639 ..... 1963 1640 ..... 1964 TOAD peoesen 1965 1641a . 1966 1642 ..... 1967 1643 ..... 1968 1644 ..... 1969 1644a .... 1970 1645 ..... 1971 1646 ..... 1972 1647 ..... 1973 1648 ..... 1974 1649 ..... 1975 1650 ..... 1976 1651 ..... 1977 1652 ..... 1978 1653 ..... 1979 1654 ..... 1980 1655 ..... 1981 1656 ..... 1982 1657 ..... 1983 1658 ..... 1984 1659 ..... 1985 1660 ..... 1986 1661 ..... 1987 1662 ..... 1988 1663 ..... 1989 1664 ..... 1990 1665 ..... 1991 1666 ..... 1992 1666a .... 19938 1666b .... 1994 1666c .... 1995 Eleventh Present Edition Edition sishenaes 1996 —— ..... 1997 Chap. XLITII. 1667 ..... 1998 1668 ..... 1999 1669 ..... 2000 1670 ..... 2001 1671 ..... 2002 1672 ..... 2003 1673 ..... 2004 1674 ..... 2005 1675 ..... 2006 1676 ..... 2007 WOT eiaccies 2008 1678 ..... 2009 1679 ..... 2010 1680 ..... 2011 ——— ..... 2012 Chap. XLIV. 1682 ..... 2013 1683 ..... 2014 1684 ..... 2015 1685) as. 2016 1686 ..... 2017 1687 ..... 2018 1688 ..... 2019 1689 ..... 2020 1690 ..... 2021 1691 ..... 2022 1692 ..... 2023 1693 ..... 2024 1694 ..... 2025 1695 -...4. 2026 1695a .... 2027 1696 ..... 2028 Eleventh Present Edition Edition 1697 pt. .. 2029 1697 pt. .. 2030 1697 pt. .. 2031 1697 pt. .. 2032 1697 pt. .. 2033 1697 pt. .. 2034 1698 pt. .. 2035 1698 pt. .. 2036 1699) acces 2037 1700 pt. .. 2038 1700 pt. .. 2039 1700 pt. .. 2040 1700 pt. .. 2041 1701 ..... 2042 LOD ss saya 2043 TLO8) avers 2044 1704 ..... 2045 1704a .... 2046 1705 ..... 2047 1706 ..... 2048 PLOT sires: 2049 1708 ..... 2050 1709 ..... 2051 AGO. see 2052 VIDE. esa esy 2053 PTV «eisai 2054 V3 wxwes 2055 1714 ..... 2056 VIALS: aces 2057 == aie 2058 Shas 2059 —— sews 2060 —— ..... 2061 Chap. XLV. 1717 ..... 2062 CRIMINAL LAW. Eleventh Present Edition Edition 1718 ..... 2063 119 Berns 2064 1720 ..... 2065 72 oes 2066 1721a .... 2067 1722 dacecs. 2068 L123» veers 2069 1724 ..... 2070 1725 ..... 2071 L126: eae. 2072 VOT teceess 2073 1728 ..... 2074 VIQ9 cy eter 2075 17380 ..... 2076 UBL cee 2077 132. cokes 2078 1788 ..... 2079 T7384 seis 2080 L785 ase 2081 1736 ..... 2082 VIBE: scAves 2083 1737a .... 2084 LIBS? gcse 2085, Chap. XLVI. 1741 ..... 2086 1742 ..... 2087 1744 ..... 2088 TTAB esteas 2089 1746 ..... 2090 jose’ 2091 Chap. XLVITI. V4T was 2092 1748 ..... 2093 17484 .... 2094 1748b .... 2095 exi Eleventh Present Edition Edition 1749 ..... 2096 1750 ..... 2097 VIBE Bess 2098 L752) awe 2099 1753. gy ecsus 2100 1754 ..... 2101 spattiue 2102 Chap. XLVIII. 1756 ..... 2103 VDT eee 2104 W758 seas 2105 1759 ..... 2106 1760 ..... 2107 1761 ..... 2108 1762 ..... 2109 1763 ..... 2110 1764 ..... 2111 1764a .... 2112 WIGS. canes 21138 — ..... 2114 Chap. XLIX. 1767 ..... 2115 1768 ..... 2116 1769 ..... 2117 VETO! seated 2118 U0 TAS dence 2119 TUT 2 eo cK 2120 VCS hs 2121 UU cea 212% 1774a .... 2123 DET: acesercia 2124 1776 «1... 2125 1777 ..... 2126 1778 ..... 2127 exii Eleventh Present Edition Edition ‘Chap. L. 1782 ecu 2128 1783 ..... 2129 1784 ..... 2130 VTS caccacs 21381 1786 ..... 21382 LSE sewes 21338 1788 ..... 2134 1789 ..... 2185 1790 ..... 2136 1791 ..... 2137 1792 ..... 21388 LOS esecacas 2139 1794 ..... 2140 1795 eae 2141 1796 ..... 2142 VOT ce 21438 1798 ..... 2144 1799 2.245 2145 1800 ..... 2146 1801 ..... 2147 1802 ..... 2148 TEG8. ceecoy 2149 1808a .... 2150 1804 ..... 2151 1805 ..... 2152 1806 ..... 2153 1807 ..... 2154 1808 ..... 2155 1809 ..... 2156 1810 ..... 2157 1811 ..... 2158 1812 ..... 2159 1813 ..... 2160 CRIMINAL LAW. Eleventh Present Edition Edition 1814 ..... 2161 1815 ..... 2162 1816 ..... 2163 1817 ..... 2164 1818 ..... 2165 1819 wesw 2166 1820 ..... 2167 Chap. LI 1822 ..... 2168 1893) suse 2169 1824 ..... 2170 1825) ence 2171 1826 ..... 2172 1826a .... 21738 1827 ..... 2174 1828 ..... 2175 1828a . 2176 1829 ..... Q177 183043604 2178 1831 pt. .. 2179 1831 pt. .. 2180 1831 pt. .. 2181 1831 pt. .. 2182 183la .... 2188 Chap. LII. 1832 ..... 2184 1832a .... 9185 18382b .... 2186 18383 ..... 2187 1834 ..... 2188 18385 ..... 2189 1836 ..... 2190 1837 ..... 2191 1838 ..... 2192 1838a .... 2193 Eleventh Present Edition Edition 1838b .... 2194 DSB 9" ssccey se 2195 1840 ..... 2196 1841 cave 2197 1841a . 2198 1842 ..... 2199 1843 ..... 2200 1844 ..... 2201 1845 sssces 2202 1846 ..... 2208 1847 ..... 2204 1848 saecae 2205 1848a .. 2206 1848b . 2207 ——— ooo, 2208 Chap. LIII. 1849 ..... 2209 1850 ..... 2210 1851 ..... 2211 Chap. LIV. 1853 ..... 2212 1854 ..... 2213 Chap. LV. 1857 ..... 2214 1858 ..... 2915 1859 ..... 2216 — ..... 2217 Chap. LVI. 1860 ..... 2218 1861 cacy B29 1862 ..... 2220 1863 eee 2291 1864 ..... 2229 1865 ..... 2223 Eleventh Present Edition Edition 1866 ..... 2224 VS60 cae 2225 1868 ..... 2226 1869 ..... 2227 Chap. LVIL. AST, wigs ox 2228 1872 ..... 2229 1873 ..... 2230 Chap. LVIIL 1876 2%. 2231 TSE cess 2232 1878 we» 2233 L899 45.04 2234 1880 ..... 2235 ASST asses 2236 CRIMINAL LAW. Eleventh Present Edition Edition 1882 ..... 2237 Chap. LIX. 1885. dca 2238 1886 ..... 2239 1887 ..... 2240 Chap. LX. 1889 ..... 2241 1890 ..... 2943 ESOT, ogee e Soe 2243 1892 ..... 2244 Chap. LXI. 1894 pt. .. 2245 1894 pt. .. 2246 1895. 02s ays 2247 1896 ..... 2248 exili Eleventh Present Edition Edition 1897 ..... 2249 Chap. LXII. 1899 sseas 2250 Chap. LXIII. 1900 ..... 2251 Chap. LXIV. 1901 ..... 2252, 1902 ..... 2253 1903 ..... 2254 1904 ..... 22955 1905 ..... 2256 1906 ..... 2257 1907 ..... 2258 1908 ..... 2259 CRIMINAL LAW. VOLUME IL. CHAPTER I. BASIS OF CRIMINAL JURISPRUDENCE. I. RELATIVE THEORIES. § 1. Purpose of State in punishing crime. § 2. That object of punishment is to prevent the offender from further offending. § 3. That object of punishment is public self-defense. § 4. That object of punishment is the reformation of the offender. § 5. —Reformation of offender is primary object. § 6. —Theory of reformation does not make distinction as to crimes. § 7. That object of punishment is to terrify others. § 8. —Criticism of theory applies to terrorism. § 9. That penal justice is law teaching by example. II. ABSOLUTE THEORY. § 10. That punishment is an act of retributive justice, to which reformation and example are incidental. § 11. Crime, as such, is to be punished by de facto governments. § 12. Prevention of further crimes to be kept in view. § 13. —And so the reformation of the offender. I. Rexvative THEORIES. § 1. Purpose of State in punishing crime. What pur- pose has the State in punishing? Upon the answer to this ques- tion depends not merely the extent of the punishment which we inflict upon conviction, but the conception of justice on which Crim. L. Vol. IL—1. : 2 CRIMINAL LAW. [§ 2 convictions rest.1. It becomes important, therefore, to examine at the outset the several theories which have been propounded as the basis, in this respect, of criminal jurisprudence. These theories may be arranged as follows: § 2. That object of punishment is to prevent the of- fender from further offending. Is it the sole object of pun- ishment to prevent the offender from the commission of future 1 Beccaria’s theory of punishment is that crimes are to be measured only by the injury done to society, and that there ought to be a fair proportion between crimes and pun- ishments. See Essay, Crimes, chap. vi & vii. Punishment should be propor- tioned to the crime.—Men have al- ways sought for some relation be- tween the punishment and the par- ticular offense.. They have not been content to regard merely the effect of the punishment in preventing other like crimes. Thus, in the lan- guage of Horace: “Let’s have a rule Which deals to crimes an equal pun- ishment, Nor tortures with the horrid lash for faults Worthy a birchen twig.” Rossi says: . “Qu’on place Ja conscience humaine en présence d’un délit déterminé, et d’une certaine souffrance infligée 4 l’auteur de ce délit, le moment arrive od elle s’écrie, ‘Cest assez.’ . Ce sentiment dune justice accomplie et satisfaite au moyen d’une certaine souffrance est indépendant de toute pensée rel- ative au besoin de prévenir les délits par la crainte ou par la réforme du coupable. C’est le senti- ment de Vexpiation morale, de la justice absolue, pure, simple, désin- téressée.” 3 Rossi, Traité du Droit Penal, p. 100. He further says: “Cest un fait que l’homme saisit un rapport entre le mal moral et la souffrance méme physique qui est infligée en raison de ce mal. Certes il n’est pas facile a la logique d’ex- pliquer ce rapport entre deux élé- ments aussi étrangers l’un a l’autre que le sont, en apparence du moins, le mal moral et la douleur matérielle. Mais leur liaison n’est pas moins un fait irrécusable: la conscience, au lieu d’en étre choquée, l’approuve et s’en déclare satisfaite.” 3 Rossi, Traité du Droit Penal, p. 99 Primary elements of punishment. —According to the general view of primary elements in all punishments for crime is the moral nature of the act in question. This is incapable of quantitative measurement, and re- course must be had to an inquiry into details in each particular case in which an inquiry is to be made 1. The moral responsibility of the actor, by which I mean not merely the question whether he be sane or insane, but what is the nature of his moral training, his ethical envi- ronment, his knowledge of right and wrong; what is the light against which he has been sinning,—for sure- ly it is as true now as of old, that “he that knoweth his master’s will, and doeth it not, shall be beaten with many stripes, but he that knoweth it not, with few.” 2. What was the relation of the criminal to the injured one? Was it merely that of a fellow man, or did the criminal owe a grudge or a great debt of gratitude to the wronged one? Was there the tie of marriage or of kindred between them, or was there trust reposed, accepted, and betrayed? 3. What was the intention of the act done? If it had, in fact, far- reaching consequences of injury or of evil, were those in the mind of the criminal at the time of the commis- sion of the offense, or were they such as no reasonable man would ex- pect to follow? 4. What was the temptation to the act, or the excuse for the act? Was it done by a rich man in the insolence of his wealth, or by a poor man in the extremity of his need? A difficulty arises here. In prac- § 2] BASIS OF CRIMINAL JURISPRUDENCE. 3 crimes? So has it been argued.? Damages in civil actions, it is urged, are generally only compensatory for past injuries. This is enough by way of compensation, but it is not enough for prevention. The State is bound to take cognizance of the pos- sible and contingent breach of law which is contained in the criminal will; the State must suppress the danger that is thus encountered. By penal jurisprudence this suppression is prop- erly to be worked. By this reasoning the imposition of pun- ishment can be defended. By these tests the extent of punish- ment may be determined. Yet in reply to this we cannot escape the following criti- cism: If the theory be correct, and be logically pursued, then punishment should precede, and not follow, crime.? The State must explore for guilty tendencies, and make a trial to consist in the psychological investigation of such tendencies. This contradicts one of the fundamental maxims of the English com- tice we draw a distinction of a very marked kind between a consummat- ed crime and an attempt to commit the crime. If we did not, an at- tempt to murder would result in hanging, as well as murder itself. But why should a criminal be bene- fited by the fact that his intention was never completely effected? The answer requires us to draw a dis- tinction. There are cases in which it is possible that, between the com- mencement and the completion of the crime, the culprit’s heart might have changed, that the uplifted arm might have been withdrawn, that the attempt might never have become the act. In these cases the intention wants the constancy and the per- severance which in some cases are among its vilest features, and here some difference may well be drawn between an attempt and a crime. But there are other cases in which the act, so far as it relates to the criminal, is complete; the gun has been loaded, the victim has been tracked, the watch has been kept through long hours of patient wick- edness, the gun has been aimed and discharged, but the victim escaped. On the primary principle of punish- ment, that man appears to be worthy to be punished as a murderer. Sir Edward Fry in Nineteenth Century, republished in 5 Crim. L. Mag. 16. Secondary elements of punish- ment appear to be (1) the reforma- tion of the offender, (2) the pre- vention of further offenses by the offender, and (3) the repression of offenses in others. Sir Edward Fry in Nineteenth Century, republished 5 Crim. L. Mag 16. 1See 16 Law Mag. & Rev. 4th series, 97. Preventive justice is a head of jurisdiction, familiar, I suppose, to all reasonable systems of law. It consists in preventing a man from doing a wrong which it is proved he is about to commit. In criminal law this principle is embodied rather in the police than in any action of the courts. In them, Justice is con- tent to follow the offender on her limping foot. This is, no doubt, mainly due to the fact that the occasions when the jurisdiction could be put in force would be few and far between. But now and then exceptional cases demand the invocation of this principle, and such legislation as we have recently seen in force in Ireland, by which un- condemned men were detained in prison, is an assertion of the justice of this principle of action. Sir Edward Fry in Nineteenth Century, republished 5 Crim. L. Mag. 16. 2 See Berner, 1877 ed. § 11, 4 CRIMINAL LAW. [§ 2 mon law, by which not a tendency to crime, but simply crime itself, can be made the subject of a criminal issue. And then, again, the object which the prevention theory sets before it, namely, the creation of right motives, belongs to the sphere of ethics, and not to law.2 Undoubtedly, as will be seen, one of the objects of penal discipline, especially in the case of an in- veterate offender, is to put him in a condition in which he can- not be guilty of future mischief. Often enough, in sentencing old convicts, do judges tell the prisoner that he is to be placed where for a time he can do no harm. It may be questioned whether, at least in some of these cases, the prevention idea has not a little too much consequence assigned to it; because so far as concerns most old convicts, imprisonment for a term usually makes them more hardened and more wary in the pur- suit of crime when they are discharged. Prevention, however, may, in peculiar cases, be a proper point to be considered in molding sentences. But prevention cannot be viewed either as forming the proper theoretical justification of judicial pun- ishment, or as one of its invariable results. § 3. That object of punishment is public self-defense. The right of self-defense has also been invoked as a justifi- cation of punishment.’ As the individual has a right to resort to self-defense to prevent a wrong being inflicted on himself, so has the State. The individual has a right to repel an attack, and even to kill the assailant, it is argued, when his existence is imperiled, and so has the State; and as every crime threatens the existence of the State, by the State every crime may be punished. Replies—First. But to this there are two replies. The first is that there are many crimes which, so far from imperiling the State, strengthen it, being reasons why the State should be in- vested with increased power; and as the State is not imperiled 8 President Woolsey’s objection.— To this theory President Woolsey justly objects that “the cardinal doc- trine, that the motives to be set be- fore the criminal are simple pleasure and pain, and the end, prevention, by overlooking the ill desert of wrong- doing, makes it and all similar sys- tems immoral, and furnishes no measure of the amount of punish- ment, except the lawgiver’s subjec- tive opinion in regard to the suf- ficiency of the amount of preventive suffering.” Woolsey’s Political Sci- ence, § 112. 1 Trendelenburg, Naturrecht, ete. Berlin, 1876, § 56. § 5] BASIS OF CRIMINAL JURISPRUDENCE. $ by such crimes, on the theory now before us such crimes can- not be punished by the State. —Second. The second, and less technical, objection, is that this theory confounds self-defense with retribution. Self-de- fense, as we will hereafter more fully see,” can ward off a threat- ened crime, but cannot be invoked to punish a crime that is con- summated. It may be preventive, but it cannot be retributive. On this theory, therefore, while the State can seize and even destroy a person threatening a crime, it cannot punish a person by whom a crime has been committed. § 4. That object of punishment is the reformation of the offender. That the object of punishment is simply ref- ormation of the offender was the theory of the humanitarian philosophers, of whom Rousseau was the chief, whose eloquent declamation on this topic was one of the preludes of the French Revolution. The good can take care of themselves,—so reads this theory when stated in its baldest terms; it is the duty of the State to take care of and reform only those whom social prejudice is pleased to call the bad. Hence, in inflicting punish- ment, the safety of the injured is not to be considered, but simply the reformation of the injurer. Nor is this to be effect- ed by fear; for fear, as an engine of government, is to be dis- carded. Fear, indeed, it is subtly argued, may produce in- creased cunning in the execution of crime, but cannot prevent crime from being undertaken. Relapsed convicts, it is declared, are most plenty in the land of hard laws. Crime can only be thoroughly repressed by a system of penalties which, from the benignity they breathe, serve rather to soften than to inflame those on whom they are imposed. § 5. —Reformation of offender is primary object. Un- doubtedly the reformation of the offender is one of the objects which a humane judge will have in view in the adjustment of his sentences; but it cannot be viewed as the primary object, or as supplying the sole standard. The protection of the unoffend- ing, if we reduce the question to a mere personal balance, is at least as important an object of humanitarian consideration as is the reform of the offender. And, again, if we examine the the- ory critically, we find we are reduced to this absurdity, that 2See infra, §§ 128 et seq. 6 CRIMINAL LAW. [§ 5 we can punish only when we can reform, and hence that the desperate and irreclaimable offender cannot be punished at all.? § 6. —Theory of reformation does not make distinc- tion as to crimes. Nor does this theory make any distinction as to crimes. While an incorrigible assassin is not to be pun- ished at all, because he is incorrigible, a trespasser who in sud- den heat strikes another, but whose temper it may take twenty years to correct, would be kept in the house of reform for twenty years. Nor is this all. What kind of correction, as has been well asked, is to be applied?! Is it to be preventive, so as to make the supposed offender innocuous? Then we encounter the objections which, as we have just seen, are fatal to the prevent- ive theory. Is it to be purely corrective? Then it is to be gradu- ated by tests which we have no means of applying, and which depend upon the capacity of characters to whose secrets we can- not penetrate. To carry out such a system thoroughly, the State must become a church, undertaking, within the bounds of a prison, to extirpate selfishness and implant moral principle. Aside from the objection that this transcends the functions of the State, it makes the State attempt to effect a moral end by immoral means. For it is immoral to punish except for the purpose of vindicating right against wrong.? § 7. That object of punishment is to terrify others. The barbarism of the old English system of punishment was defended on the ground that cruel and conspicuous penalties are to be inflicted as means of terror. Nor was this peculiar to England. It was the basis of the whole secular jurisprudence of the continent of Europe. Men were to be scared from crime, and therefore punishment was to be made as shocking and ghast- ly as possible.* To this was to be subordinated not only the hu- 1 See criticism in Lorimer’s Inst. convicted, and the second attempt at murder. (1872) 246. The point in the text is well put by Lord Justice Fry in an article in the Nineteenth Century, reprinted in 5 Crim. L. Mag 16. He says: “Prisoner at the bar,” he supposes a judge acting on the principle here criticized to say, “you are an in- corrigible villian; this is the fourth burglary of which you have been It is plain that there is no hope of your reform, and there- fore I discharge you.” 1 Woolsey’s Political Science, § 107. 2See remarks of the author in 4 Southern L Rev. 245. 1 Obedience through fear.—“The State, endeavoring to operate on the fears of mankind, organizes a method of absolutely repressing or of ab- BASIS OF CRIMINAL JURISPRUDENCE. 7 ‘ § 7] mane instincts of the court, but the primary rights of the of- fender. Criminals were to be broken on the wheel before as- sembled multitudes, and their bones hung on gallows on the highway. In nations of imperfect civilization, even now this continues; and throughout Europe, in 1869, were disseminated photo- graphs of the mangled heads, as they had been impaled on posts in Athens, of the assassins by whom certain English travelers had been massacred at Marathon. Crime in others, it was al- leged, is best checked by exhibiting to the public the most hor- rible penalties inflicted on the criminal himself. Gradually in England, in the reduction of capital punishment, and in the in- troduction of privacy in reference to capital executions, has the coarse side of this theory been abandoned. In the United States it has had no foothold since the Revolu- tion, though it was not without influence in instigating bar- barous punishments in our early colonial days. And rightly has mere terrorism been rejected as one of the objects which the judge, in adjusting sentence, is to keep in view. For terroristic penalties, viewing them in their crude shape, undertake to pun- ish the offender not merely for what he has actually done in the past, but for what others may possibly do in the future. feet, that the severe sense of the punishment, and fear of incurring it thereafter, might prevent the faults that should merit it. Our author himself would hardly approve en- tirely of this Turk’s conduct in the government of slaves, and yet he appears to recommend something like solutely commanding certain classes of acts.” Amos Jur. (London, 1872), 297. See also Maine, Ancient Law, 1870, ed. 389. To the same effect speaks Seneca: “Nemo _prudens punit quia peccatum est, sed ne pec- eatur.” Seneca, de Ira, lib. i. cap. 16 Dr. Franklin’s view.—Dr. Frank- lin, in a letter of March 14, 1788, to Mr. Vaughan, argues that “punish- ment inflicted beyond the merit of the offense is so much punishment of innocence;” and when commenting on «a pamphlet just published (“Thoughts on Executive Justice”), which ‘advocated the “example” theory, pure and simple, gives the following characteristic criticism: “T have read of a cruel Turk in Barbary, who, whenever he bought a new Christian slave, ordered him im- mediately to be hung up by the heels, and to receive an hundred blows of a cudgel on the soles of his it for the government of English sub- jects. He applauds the reply of Judge Burnet to the convicted horse stealer, who, being asked what he had to say why judgment of death should not be passed against him, and answering that it was hard to hang a man for only stealing a horse, was told by the judge: ‘Man, thou are not to be hanged only for steal- ing a horse, but that horses may not be stoien.” But the man’s answer, if candidly examined, will, I inagine, appear reasonable, as being founded on the eternal principles of justice and equity, that punisnments should be proportioned to offenses; and the 8 CRIMINAL LAW. [§ 7 Terrorism, also, treats the offender not as a person, but as a thing; not as a responsible, self-determining being with rights common to all members of the same community, to whom justice is to be distinctively awarded as a matter between him and the State, but as a creature without any rights, on whom punishment is imposed so that others should be deterred from acts requiring punishment. Objections to the terrorism theory. The theory, therefore, is open to two fatal objections: (1) It violates the fundamental principle of all free communities,—that the members of such communities have equal rights to life, liberty, and personal se- curity. (2) It conflicts with that public sense of justice which is essential to the due execution of all penal laws. For this rea- son the terroristie system has failed even in producing the re- sult which it sought. For terrorism, as such, has been shown to multiply, rather than diminish, brutal crime. No places are more prolific in crime than the sites of public executions. In- flicting public capital punishment on minor crimes has been found to generate bolder and more ferocious crimes which no capital punishment can suppress. Hence it is that terrorism has of late days ceased to be one of the elements in the measure- ment of judicial punishment. § 8. —Criticism of theory applies to terrorism. But it should be remembered that this criticism applies to terrorism in its coarse and merely sensuous aspect. For there remains to be considered a principle with which terrorism is sometimes unintelligently confounded, but which, when disentangled from the spectacular brutalism and the contempt of personal rights, by which terrorism is marked, forms an important element in penal jurisprudence. This principle will now be noticed.* judge’s reply brutal and unreason- able.” 1It is remarkable, in view of the importance of the question before us in the molding and in the application of criminal law, that it has received such slight attention from English and American jurists. Beccaria—whose treatise on Crimes was translated early in the present century, and who held that, as the State rests on social contract, it has the right to punish only so far as it has power given to it by such contract—took the ground that the object of punishment was simply preventive and deterrent; and what Beccaria taught, it was natural that those who agreed with him in prin- ciple, and who were fascinated by the purity and dignity of his style, should adopt as if it were unques- tionable. General prevention, it was argued, ought to be the chief end of punishment. General prevention was distinguished from particular § 8] prevention in this: that particular prevention has respect to the cause of the mischief, and general preven- tion to the whole community. This system is therefore virtually the terroristic theory of Feuerbach, which is discussed in the text; with this qualification,—that pleasure, as well as pain, is to be used by the law- giver as an inducement to avoidance of criminal acts. To this, as we will soon see more fully, applies with great force President Woolsey’s criti- cism that the preventive theory, “by overlooking the ill desert of wrong- doing, makes it and all similar sys- tems immoral, and furnishes no measure of the amount of punish- ment except the lawgiver’s subjective opinion in regard to the sufficiency of the amount of preventive suffering.” The founders of the Pennsylvania prison system, it should be added, while laying great stress on reform and prevention, fell back on justice as the main end of punishment. Mr, Livingston repeatedly gives his adhesion to the preventive theory “We have established it as a maxim,” he tells us in his Report on the Penal Code (Livingston’s Works, 1873, i. 26), that the object of punish- ment “is to prevent the commission of crime;” and again (Ibid. 31): “No punishments greater than are neces- sary to effect this work of prevention ought to be inflicted, and that those which produce it by uniting reforma- tions with example are the best adapted to the end.” Subsequently, however (Ibid. 83), he quotes with approval the preamble to the statute of the legislature of Louisiana estab- lishing the Code. This preamble con- tains, inter alia, the following: “The only object of punishment is to prevent the commission of offens- es; it should be calculated to oper- ate,— “First, as to the delinquent, so as- by seclusion to deprive him of the present means, and, by habits of in- dustry and temperance, of any future desire, to repeat the offense. “Secondly, on the rest of the com- munity, so as to deter them, by the example, from a like contravention of the laws.” The intermediate theory is main- tained by Dr. Lieber, in his essay on BASIS OF CRIMINAL JURISPRUDENCE, Penal Law, published in Lieber’s Mis- cellaneous Writings (1881), vol. ii. p. 471. The test proposed by this em- inent writer is that punishment “must be just, according to the spirit of the age.” Dr. Paley, in his Moral Philosophy, says that “the end of punishment is twofold,—amendment and example.” Lord Auckland’s view.—The same view is adopted by the great body of English commentators, with the fol- lowing exceptions: Lord Auckland (Mr. Eden), in his Principles of Penal Law, chapter ii, maintains the ab- solute theory. Mr. Bentham, as will be seen, substantially takes the same view. Mr. Lorimer, in his Institutes, page 346, rejects the reformatory theory as inadequate and delusive. Mr. Austin and Sir W. Hamilton follow the modified scheme of Kant, to be presently noticed. The “example” and the “reform” theories were both used with great effect by the defenders of Governor Eyre, when he was charged in Eng- land with permitting reckless and brutal vengeance to be inflicted on all persons suspected of complicity in the Jamaica negro outbreak of 1865. It will be recollected that after order was entirely restored, great cruelties were inflicted, with the apparent per- mission of the governor, on persons who had not borne arms, and who were not proved to have been actual- ly concerned in the revolt. The sub- ject became a matter of active con- troversy in England, and Governor Eyre was defended by Mr. Carlyle, Mr. Ruskin, and others, on the ground that the object of punishment is to prevent crime and reform the com- munity; and that only by atrocious punishment, in cases such as that of the late disorders in Jamaica, could the still more atrocious crime of a universal massacre of the white race be prevented. This position was re- viewed with great ability by Cock- burn, Ch. J., in his charge to the grand jury, which took the ground that punishment could be meted out only in retribution of crime duly established in a court of law. “Professor Huxley,” says Mr. Mc- Carthy, after narrating the procedure, “disposes once for all of that sort of 10 CRIMINAL LAW. Ig 9 § 9. That penal justice is law teaching by example. In another work,’ the educational bearing of penal legislation is largely discussed, and it is there shown: (1) That the an- nouncement of punishment as a consequent on crime is essen- tial to just penal jurisprudence; (2) that such an announce- ment of punishment is futile unless it is followed up, as a rule, by infliction. Two great instrumentalities, it is alleged, are within the law- makers’ control, for the suppression of crime. The first is edu- cation, showing its moral and economical ill consequences. The second is to be found in penal laws; such laws to be humane- ly and justly devised, lucidly expressed, universally promul- gated, and firmly executed. Each of these features is essential to enable these laws to be effective on the public at large. Men will not be deterred from crime by unjust or inhuman laws ca- priciously executed. And the appeal made by a right system of laws is not sensuous, simply agitating the passions, as is the case with the terroristic theory. For just laws, clearly ex- pressed, faithfully disseminated, and firmly executed, address the reason of men. The offender is not to be punished simply to make him an ex- ample to others, for this would be as objectionable as is the ter- rorism just condemned.? But being justly punished, ‘his case is made public that it may become an example. In other words, example is not the object of punishment, but punishment creates example. Of course, we here assume the justice of the punish- ment, and in so doing we advance toward the absolute theories of penal discipline to be presently discussed. And this distinc- tion it is essential for the judge to keep in mind. To sentence a man to a severe and conspicuous punishment, simply to make him an example to others, not only is open to the objections al- ready noticed as applying to the terroristic scheme, but exhibits to the community an example of evil, and not of good. But in imposing a sentence, it is one of the highest prerogatives of justice so to mold and explain it as to make it the means of the argument, by the quiet remark that 47. See discussion in 4th vel. of he knew of no law authorizing virtu- Froude’s Carlyle. ous persons to put to death less 11 Wharton & S. Med. Jur. 147, virtuous persons as such.” McCar- 185, 188. thy’s Own Times, London, 1880, iv. 2See Gisborne, Moral Philos 187. g 10] BASIS OF CRIMINAL JURISPRUDENCE. ll prevention of future crime not merely in the offender himself, but in the community at large. II. Assotute THeory. § 10. That punishment is an act of retributive justice, to which reformation end example are _ incidental. The absolute theory of punishment, on which we must therefore fall back, rests on the assumption that crime as crime must be punished ; punitur quia peccatum est. But then comes the ques- tion, by whom? The State, as representing society at large, springs from a moral necessity. It is not a matter of choice whether we will live under government. Some government, some form of civil organization, we must have. And the State is not to be guided simply by expediency, or by the merely ex- ternal purposes of society. It has an existence of its own to maintain, a conscience of its own to assert, moral principles to vindicate. Penal justice, therefore, is a distinctive prerogative of the State, to be exercised in the service and in the satisfac- tion of the duty of the State, and rests primarily on the moral rightfulness of the punishment inflicted. Penal discipline un- doubtedly is expedient, both for the community and for the in- ‘dividual punished. But the jurisdiction is exercised, not be- ‘cause it is expedient, but because it is right.” Another step remains to be taken, which is this: Each de facto government is to be viewed as representing, for penal pur- poses, the State by which it is sanctioned. The State says: “Crime as crime is to be punished, and I constitute each de facto government as my agent for this purpose.” We have an interesting illustration of this tacit authorization in the recog- nition given by the Supreme Court of the United States, at the close of the late Civil War, to the penal sentences of the Con- federate courts. These courts were de jure nullities. Yet, nul- lities as they were, through their sentences thousands of con- victed offenders were, when the war closed, confined in Southern prisons. To release them, writs of habeas corpus were taken out, ‘and argued before the judges of the Supreme Court of the 1 In this result, though by different exhibited by Berner, Strafrecht, 1877, yprocesses of reasoning, concur Hook- § 17. Infra, § 13, note er, Ecc. Pol. book i., and Hegel, as 12 CRIMINAL LAW. [gs 10 United States. But the reply to these applications was substan- tially that given above: Society, in its large sense, is invested with the right to punish crimes; and each de facto government is the agent of society for this purpose. The penal sentences of such de facto governments therefore will not be disturbed. § 11. Crime, as such, is to be punished by de facto governments. Relieving ourselves, therefore, of all jure di- vino questions as to the right of particular governments to exe- cute penal justice, we reduce what is called the absolute theory of penal jurisprudence to the following propositions: (1) Crime, as such, must be punished by society; (2) Each de facto government must act as the agent of society for this purpose. Consequently, each de facto government is bound to punish crime as crime. And every judge exercising penal jurisdiction is bound to do so as the vindicator of right as such. Crime is primarily to be punished because it is a violation of moral law, and society is to punish crime, because society is the divinely ap- pointed vindicator of moral law. § 12. Prevention of further crimes to be kept in view, But is the absolute theory, as thus delineated, one which is to be nakedly administered? Are the objects which have hereto- fore been specified as relative to be entirely left out of sight? In reply to this, the following answer is to be made: While punishment is based on justice, it must be propor- tioned to guilt. If, however, we resolve guilt into its compo- nent elements, we find among them some of these very quali- ties to which the relative theories are distinctively applied. Thus, for instance, all of these theories rest more or less on the danger of crime to society; and punishment, in accordance with these theories, is to be graduated by the extent of this danger. But if, while accepting the absolute theory, we analyze guilt, we find that it becomes subjectively more or less heinous in pro- portion to the danger to society with which it is fraught. The guilt of drunkenness on the part of a man locked up in his own chamber is comparatively slight. Jf his drunkenness is con- cealed, while he is his own enemy, and the enemy, it may be, of his immediate family, he is the enemy, perhaps, of few others. But drunkenness on the part of the engineer of a steam- er is a far more flagrant, because it is a more dangerous crime. It displays, when deliberate, a heart not only callous to social § 13) BASIS OF CRIMINAL JURISPRUDENCE. 13 duty, but recklessly depraved. So, to adopt another illustra- tion, setting fire to a building at night, when its inmates are un- conscious in their beds, is an act exhibiting a guilt far more heinous and depraved than setting fire to the same building in the day, when, if within doors, they will soon discover the fire, and if they do not extinguish it, can at least escape. Graduating the punishment, therefore, by the guilt involved, a far higher penalty will be imposed in the first case than in the second. And so, with regard to the grade of homicide, as settled by our American law. Homicides by poisoning, and lying in wait, are engendered by a deeper guilt, while produc- tive of greater danger, than most other classes of homicide; and hence they are visited with peculiarly condign punishment. In fact, with intelligent agents, the guilt of an act is proportioned, as a general rule, to its dangerousness, since the audacity and profligacy of the offender are measured by the extent of the mischief he attempts. There is no necessity, therefore, for re- sorting to the ground of expediency, as a means of grading punishability, when we can reach the same result by adopting the right principle of the adaptation of punishment to guilt.’ § 13. —And so the reformation of the offender. And so with regard to the reform theory. The old convict, who has been twice or thrice previously sentenced, needs severer treat- ment, and is sentenced to longer imprisonment, with the least ameliorations; and this because his guilt is of the deeper dye. On the other hand, the boy who is tried for his first offense is committed to a house of refuge, surrounded with benignant in- fluences, which may tend to his reform. In each case the ob- jects aimed at by the reformatory theory are effected; and yet in each case the punishment is graduated simply by the offend- er’s guilt. The old convict is sentenced to a long imprisonment at hard labor, because his guilt is great; but the very greatness of this guilt invokes the severity of sentence that would be pro- duced by a just construction of the reformatory theory, when it was found that all milder measures failed. The youthful culprit is sentenced to a more lenient punishment, under more generous influences, because his grade of guilt is light, and the 10n the question of the grada- Law Mag. & Rev. 4th series, 99; 18 tion of punishment, see 5 Crim. L. Law Mag & Rev. 4th series, 169. Mag. 16; 24 Am. L Rev. 954; 16 14 CRIMINAL LAW. [§ 13 very lightness of this grade calls for that mildness of sentence which the reformatory system in such case recommends.’ 1 See vindications of absolute theo- ry in Hartenstein, Grundbegriffe d. eth. Wiss. 260-274; Rothe, Christ, Ethik, iii. 874, 900. In our own literature the ablest exposition of this view will be found in President Woolsey’s Political Sci- ence, §§ 100 et seq. It is also vindicated by Lord Jus- tice Fry, in the article above quoted in the Nineteenth Century, reprinted in 5 Crim. L. Mag. 16. Kant’s theory.—According to Kant (see Berner, ed. of 1877, § 18), ju- dicial punishment cannot be em- ployed as a means to obtain a collat- eral good, but must always be im- posed on and made commensurate to a violation of law. A man, so he argues, is not to be treated as a thing, to be sacrificed to the policy of the State; from this he is protect- ed by his inherent personality. He must be justly convicted of a crime before the State can punish him for the public benefit. Penal law is a categorical imperative. Punishment is inflicted, not because it is useful, but because it is demanded by rea- son. But he insists that social con- tract is the basis of punishment; and he forcibly illustrates this by saying that even if society, by the consent of all its members, should be on the point of dissolu- tion, a murderer sentenced to death should first be executed, and that this would be right. As a rule, he recommends retaliation; the like is to be punished by the like. This, however, is not to be literally car- ried out, as in the Mosaic system, an eye for an eye, a tooth for a tooth. The principle of equality is to be sub- stantially, not formally, applied. It has, however, been objected to Kant’s theory, that it is inconsistent with itself. In his view law is the ema- nation of the united will of the peo- ple, following in this the social con- tract theory of Rousseau. The secur- ity of individuals is, hy this view, the object of the State It is difficult to reconcile with this conception, that the State inflicts punishment, not primurily for the sake of the indi- vidual, but primarily for the sake of justice. But however inconsistent in this respect Kant may be, his ex- ample shows that it is possible for the absolute theory of punishment to be held by an adherent of the social contract hypothesis. Hegel’s theory.—An analysis of Hegel’s philosophy of punishability is found in the 9th edition of Berner’s Lehrbuch des Deutschen Strafrech- tes, Leipsic, 1877, a work which is one of the most popular and the most authoritative of recent German treatises on criminal law, and which adopts as its basis the Hegelian phil- osophy in this relation. —Punishment, according to Hegel (so writes Berner, § 21), is to be re- garded as an agency to annihilate wrong in its effort to annihilate right. It is therefore the negation of a negation. This is tantamount to saying that punishment is retri- bution (Vereltung). But the punitive negation must be so applied as to do no more than can- cel the prior criminal negation. The punishment must find its measure in the crime. As the right that has been impaired has a specific scope and quality, so the punishment, to be a correspondent negation, must on its side have its quantitative and quali- tative limitations. —tThe identity of crime and punish- ment, however, which is thus re- quired, does not consist in a specific similarity. It is not requisite that the crime should be retaliated on the criminal. All that is asked is that the evil of the punishment should be proportioned in value (nach dem Werthe) to the evil of the crime —It is not the mission of philos- ophy, so continues Hegel, to establish a valuation of punishment so as to apportion it duly to each particular crime. Philosophy deals with the principle, and leaves the application to the practical reason. All that phi- losophy can do is to assign a qualita- tive and quantitative certainty to an impaired right, to which its punish- § 13] ment is to correspond. Rechtsphilosophie, 390 et seq. _ Hegel’s views may in this respect be criticized as speculative, but it must be remembered that they have been accepted and elaborated as-the basis of penal law by some of the most practical of contemporary jur- ists. Bismarck is no idealist, yet we find Bismarck, in a speech in the Prussian Herrenhous, in 1872, adopt- ing the Hegelian theory of punish- ment, and illustrating it by the fam- ous maxim which Meyer has taken as the motto of his late valuable treatise on criminal law: “Laws are like medicines; they are usually nothing more than the healing of one disease by another disease less, and more transient, than the first.” Certainly, Hegelianism, in adopting and sustaining philosophically the theory of a just retribution as the sole primary basis of punishment, exhibits a healthy contract to the sentimentalism of humanitarian phi- losophers who ignore the moral and retributive element in punishment, making its primary object to be the reform of the alleged criminal, and example to the community. To such theorists the final answer is that, until a man is proved to be guilty of a crime, we have no right either forcibly to reform him or to punish him as an example to others; and that neither reformation nor example will be promoted by assigning to him, after he is convicted, a punishment disproportioned to his offense. At the same time, in the application of such punishment, reform and ex- ample are to be kept incidentally in view. Conviction and sentence are to be according to justice; but prison discipline is to be so applied as to make the punishment conduce as far as possible to the moral education of both criminal and community. Limits of punishment.—The gen- eral question of the limits of punish- ment will be found discussed by Plato, in Gorgias (ed. Bipont. 4, pp. 49, 57); and in de legg. (lib. 9, 10, 11); and by Aristotle, Ethics, book 5, chap 8. Bentham advocates the absolute theory, in his treatise on punishment, subject to the following qualifica- tions: Hegel, BASIS OF CRIMINAL JURISPRUDENCE. 15 (1) The evil of the punishment. must exceed the advantage of the of-. fense. (2) The severity must be in- creased as the certainty is dimin- ished. (3) The greater the offense, the more severe may be the punishment adopted for the chance of its pre- vention. (4) Punishments may be varied with the sensibility of the offender. (5) “Real” punishments should be. “apparent” for the sake of example. (6) The power of further injuring, should be taken away or reduced. (7) Recompense to the injured party should be kept in view. See summary in Montague on Punish- ment, i. 211 et seq. Woolsey’s retribution theory.— According to President Woolsey, the retribution theory which he vindi- cates “assumes that moral evil has. been committed by disobedience to rightful commands; that according to. a@ propriety which commends itself to our moral nature, it is fit and right that evil, physical or mental, suffering, or shame should be in- curred by the wrongdoer, and that in all forms of government over moral beings there ought to be a power to. decide how much. evil ought to follow special kinds and instances of trans- gression. Its province (that of the State) is confined to such ac- tions as do harm to the State, or to interests which the State exists to protect. . Its object in punishing is not, in the first instance, to punish for the sake of punishing, because so much wrong demands so. much physical suffering; but to pun- ish—punishment being in the circum- stances otherwise right—not directly for the ends of God’s moral govern- ment, but for ends lying within and far within that sphere.” Woolsey’s. Political Science. § 107. Object of punishment—Sir J. F. Stephen’s view.—Sir J. F. Stephen speaks thus to the same effect: “The infliction of punishment by law gives definite expression and a solemn ratification and justification of the hatred which is excited by the com- mission of the offense, and which constitutes the moral or popular, as distinguished from the conscientious, 16 CRIMINAL LAW. [§ 13. sanction of that part of morality which is also sanctioned by the crim- inal law. The criminal law thus pro- ceeds upon the principle that it is morally right to hate criminals, and it confirms and justifies that senti- ment by inflicting upon criminals punishments which express it.” 2 History Crim. Law, 81. CHAPTER II. DEFINITION AND ANALYSIS OF CRIME. § 14. Crime is an act made punishable by law. § 15. —Inadequacy of definition. § 16. Immorality and indictability are not convertible. § 17. Distinction between public and private remedies. § 18. English common law in force in the United States. § 19. Want of English common-law authorities does not preclude an of- fense from being indictable at common law in the United States. § 20. Offenses indictable here, though punishable in England by statute only. § 21. —Disturbances of the public peace indictable at common law. § 22. —Malicious mischief indictable at common law. § 23. —Public scandal and indecency indictable at common law. § 24. Offenses exclusively religious not indictable. § 25. Offenses at common law are (1) treason, (2) felonies, and (3) mis- demeanors. § 26. Felonies include erimes subject to forfeiture. § 27. “Infamy” is that which impresses a moral taint. § 28. Misdemeanors comprise offenses lower than felonies. § 29. Police offenses to be distinguished from criminal. § 30. An act when prohibited by statute is indictable, though indictment is not given by statute. . Statutory provisions as to punishment to be strictly followed. . New statutory penalties are cumulative with common law. . Offenses are divisible—l. By dischargirg aggravating incidents. —2. By diversity as to time. —3. By diversity as to place. —4. By diversity as to object. —5. By diversity as to aspect. —6. By diversity as to actors. . Merger is absorption of lesser in greater offense. . Penal statutes to be construed favorably to accused. . Retrospective statutes inoperative. . Acts imposing a severer penalty are inoperative. . Procedure and rules of evidence may be retrospectively changed. . State may relieve from punishability by limitation or pardon. . Civil and criminal remedies may be concurrent. oo Ne FSSHAS Ke th th > th i > Uh Uh th hn UD WW) 4) > a PP PP Pw Ww Ww ww ww eo DD oO § 14. Crime is an act made punishable by law. An offense which may be the subject of criminal procedure has Crim. L. Vol. L—2. 18 CRIMINAL LAW. [§ 14 been defined to be an act committed or omitted in violation of public law, either forbidding or commanding it.’ 1[Fed.] Wilkins v. United States, 87 C. C. A. 588, 96 Fed. 837, 1899. [Colo.] Greeley v. Hamman, 12 Colo. 94, 20 Pac. 1, 1888. [Conn.] State v. Bishop, 7 Conn. 181, 1828. [Ga.] State v. Savannah, R. M. Charlt. (Ga.) 250, 255, 1828. [Mich.] Slaughter v. People, 2 Dougl. ( Mich.) 334, 335 note, 1842. [Mo.] Kansas v. Clark, 68 Mo. 588, 1878. [Mont.] Helena v. Gray, 7 Mont. 486, 17 Pac. 564, 1888. [Neb.] Pounder v. Ashe, 36 Neb. 564, 54 N. W. 847, 848, 1893. [N. J.] Campbell v. Su- preme Conclave, I. O. H. 66 N. J. L. 274, 54 L.R.A. 576, 49 Atl. 550, 553, 1901. [Ohio.] State v. Brazier, 37 Ohio St. 78, 1881. [Vt.] State v. Peterson, 41 Vt. 504, 1869. [W. Va.] Moundsville v. Fountain, 27 W. Va. 182, 1885. “An act of omission or commis- sion, punishable as an _ offense against the state.” Campbell v. Supreme Conclave, I. O. H. 66 N. J. L. 274, 54 L.R.A. 576, 49 Atl. 550, 553, 1901. Bohner v. Bohner, 46 Neb. 204, 64 N. W. 700, 1895; State v. Ostwalt, 118 N. C. 1208, 32 L.R.A. 396, 24 S. E. 660, 1896. See 2 Words & Phrases, 1736. Definitions of “crime."—“A crime or misdemeanor (delict) is an act committed or omitted in violation of a public law either forbidding or commanding it.” Stephen, Com. iv. 8, note (d), adopted in Nasmith, Inst. 68. See Amos on Jur. (Lon- don, 1872), 286; 1 Stephens, His- tory Crim. Law, 3. The latter’s defi- nition is, however, too comprehen- sive. —“A criminal act is one which in some way or other subjects the act- or to punishment.” Broom’s Phil. of Law, § 163. To this is added (§ 164) that a “crime is constitut- ed by an overt act done with a guilty intent, or includes a guilty mind, knowledge, or possession, af- fecting or prejudicing the public.” This is defective in not including of- fenses which are criminal from want of intent, i. ¢., from negli- gent omission to perform a duty, or in violation of the positive prohibi- tion of a police statute. See also Hialschner, System, i. p. 19; Whar- ton, Am. Law, chaps. I., II., and III. —tThe word “crime” “comprehends such offenses as are supposed to be directed against the essential wel- fare of the state, or the great funda- mental basis of society, as regards. the protection of person, property, and reputation.” 16 Law Mag. & Rev. 4th series, 65. See also, 28 Am. L. Rev. 368. —“A crime may be provisionally defined to be ‘an act which the State absolutely prohibits, or a forbear- ance from an act which the State absolutely commands to be done, the State making use of such a kind and measure of punishment as may seem needed to render such prohibi- tion or command effectual.’” Amos, Jur. (London, 1872), 286. Sir J. F. Stephen’s definition is as follows: “The criminal law is that part of the law which relates to the definition and punishment of acts or omissions which are punished as be- ing (1) attacks upon public order, internal or external; or (2) abuses or obstructions of public authority; or (3) acts injurious to the public in general; or (4) attacks upon the persons of individuals; or (5) attacks upon the property of indi- viduals or rights connected with, and similar to, rights of property.” 1 History Crim. Law, 3. This, how- ever, is too comprehensive. The last head, for instance, would in- clude trespasses as well as larcenies. “As law is the necessary form in which right is embodied, crime, not indeed in its essence, but in its form, presupposes law, and must, there- fore, be called an unlawful act.” Halschner, System, i. p. 19. Mr. Livingston does not attempt a definition. “All contraventions of penal law,” he tells us, “are denomi- nated by the general term ‘offenses.’ Some division was necessary to dis- tinguish between those of a greater and others of a Jess degree of guilt. No scale could be found for thig § 14] DEFINITION AND ANALYSIS OF CRIME. 19 A wrong of which the law takes cognizance as injurious to the public, or to the public welfare, and punishes it by (1) death, (2) imprisonment, (3) fine, (4) removal from office, (5) disqualification to hold any office of honor, trust, or profit, (6) disfranchisement, or (7) any other penal discipline,’ by any action or proceeding prosecuted in a court of competent jurisdiction, in the name of the government or of the people or the sovereign, for the determination of the guilt of the ac- cused, and for the punishment of the crime.® measure so proper as the injury done to society by any given act.” That “offenses,” however, are not convert- ible with “injuries done to society” is plain, since there are many “in- juries” done to society which are not “offenses,” so far, at least, as to be subject to indictment. I have dis- cussed this subject in greater detail in my Commentaries on American Law, Chapters I., II., and III. 2 [Cal.] People v. McNulty 93 Cal. 427, 26 Pac. 597, 29 Pac. 61, 1892; Wheeler v. Donnell, 110 Cal. 655, 43 Pac. 1, 1896; People v. Holmes, 118 Cal. 444, 50 Pac. 675, 1897. [N. Y.] People ex rel. Shortell v. Markell, 20 Mise. 149, 45 N. Y. Supp. 904, 907, 1897. [N. D.] State v. Hogan, 8 N. D. 301, 45 L.R.A. 166, 73 Am. St. Rep. 759, 78 N. W. 1051, 1899. “A crime is any wrong which the government deems injurious to the public at large, and punishes in a judicial proceeding in its own name.” State v. Ostwalt, 118 N. C. 1208, 32 L.R.A. 396, 24 S. E. 660, 1896. 8[La.] State v. Thibodeaux, 48 La. Ann. 600, 19 So. 680, 1896. [Neb.] Pounder v. Ashe, 36 Neb. 564, 54 N. W. 847, 1893. [N. H.] State v. McConnell, 70 N. H. 158, 46 Atl. 458, 1900. [N. Y.] Landers v. Staten Island R. Co. 14 Abb. Pr. N. S. 346, 1873. [Wash.] State ex rel. Calderwood v. Schomber, 23 Wash. 573, 63 Pac. 221, 1900 [Wis.] Re Bergin, 31 Wis. 383, 1872. As to what act constitutes a crime, see State v. Zichfeld, 23 Nev. 304, 34 L.R.A. 784, 62 Am. St. Rep. 800, 46 Pac. 802, 1896; State v. Pray, 30 Nev. 206, 94 Pac, 218, 1908; Armour Packing Co. v Unit- ed States, 14 L.R.A.(N.S.) 400, 82 C. C. A. 135, 153 Fed. 1, 1907. “An action is criminal when insti- tuted on behalf of a sovereign or commonwealth, in order to vindicate the law by the punishment of a public offense.” lJowa v. Chicago, B. & Q. R. Co. 3 L.R.A. 554, 37 Fed. 497, 498, 1889. —Rebates in violation of the inter- state commerce law, see note in 14 L.R.A.(N.S.) 400-403. Indictment — Misappellation of crime charged is mere defect of form, which cannot prejudice defend- ant, no objection being taken by demurrer. State v. Johnson, 9 Nev. 175, 1874, citing State v. Anderson, 3 Nev. 254, 1867. —Negativing exceptions in stat- ute not necessary unless the excep- tion is such as to render the neg- ativing of it an essential part of the definition or description of the of- fense charged. See [Fed.] Shelp v. United States, 26 C. C. A. 570, 48 U. S. App. 376, 81 Fed. 694, 1897. [Colo.] Poole v. People, 24 Colo. 510, 65 Am. St. Rep. 245, 52 Pac. 1025, 1898; Johnson v. People, 33 Colo. 238, 108 Am. St. Rep. 90, 80 Pac. 136, 1905. [Dak.] Territory v. Scott, 2 Dak. 212, 6 N. W. 435, 1880. [Mont.] Territory v. Burns, 6 Mont. 75, 9 Pac. 432, 1886; State v. Wil- liams, 9 Mont. 181, 23 Pac. 335, 1890. [Nev.] State v. Robey, 8 Nev. 312, 1873; State v. Ah Chew, 16 Nev. 50, 40 Am. Rep. 488, 1881; State v. Buckaroo Jack, 30 Nev. 325, 334, 96 Pac. 498, 1908. [S. C.} State v. Bouknight, 55 8. C. 353, 74 Am. St. Rep. 751, 33 S. E. 451, 1899. [Utah.] State v. Williamson, 20 CRIMINAL LAW. (§ 15 § 15. —Inadequacy of definition. This definition, how- ever, though adequate in those states in which there is no common law, fails in states in which there is recognized, as will presently be seen, a common law, which determines, from the reason of the thing, that a particular act is an indictable of- fense. In such states the definition before us is a petitio principw, it being equivalent to saying that an act is a crime because it is forbidden by law, and that it is forbidden by law because it is a crime. When we seek, however, for a test to determine, in states where the common law obtains, whether a particular offense, as to which there is no statute, or no prior ruling specifically applicable, is indictable, then we must go further than the definition above given, and hold that at common law a wrong which public policy requires to be prosecuted by the state is an indictable offense.1 The wrong, however, must be one which violates the general sanctions of the law, though it is not necessary that it should be prohibited specifically by prior statute or prior judicial decision.* § 16. Immorality and indictability are not convertible. It has been often said that at common law indictability and immorality are convertible terms.’ So far, however, from this being the case, there are indictable acts which are not immoral, and immoral acts which are not indictable. Assaults of all kinds are indictable; but all assaults are not necessarily immoral. An assault in self-defense is the exercise of a right; and waiving this, as presenting a question of con- tingent indictability, there are many cases in which a man may be convicted of an assault which is in itself not immoral, as when he acts under a mistake of fact or of law. 22 Utah, 248, 83 Am. St. Rep. 780, 62 Pac. 1022, 1900. See also notes in 94 Am. Dee. 256, and 95 Am. Dec. 785. 1See Smith v. People, 25 Ill. 17, 76 Am. Dec. 780, 1860; Com. v. Chapman, 13 Met. 68, 1847; Com. v. McHale, 97 Pa. 397, 39 Am. Rep. 808, 1881. Boycotting as a criminal offense, see note in 76 Am. Dec. 783-785. Combination to seduce a female is a criminal conspiracy, although seduction is not a criminal offense at common law. Smith v. People, 25 Ill. 17, 76 Am. Dec. 780, 1860. 2Tllegal acts may be declared mis- demeanors at common law, without precedent. Millar v. Taylor, 4 Burr. 2312, 1769; Jefferys v. Boosey, 4 H. L. Cas. 936, 3 C. L. R. 625, 24 L. J. Exch. N. S. 81, 1 Jur. N. S. 615, 1854; Stephen’s Crim. Dig. art. 160; 3 Stephen History Crim. Law, 359; Pe Am. Law, § 30. Infra, § 41. 1See Lieber, Penal Law, 2 Lieb- er’s Misc. Works, 471 et seq. § 17) DEFINITION AND ANALYSIS OF CRIME. 21 Honcst belief, also, as we see elsewhere,® that an action is right, while it purges the action from immorality, does not relieve it from indictability. The morality of an act depends upon its conscientiousness ; and unless we recognized the rights of the individual conscience in this respect, even as against the opinion of the majority, no ethical system could be constructed. On the other hand, there are numberless immoralities which the State does not and can- not undertake to punish.* We must therefore reject immo- rality as the condition of indictability, and fall back upon the public sense of right and public policy as already stated.* If we are required to supply a further test, we might say that public policy demands the indictability of all immoral acts of which punishment by law is the proper retribution. From this class are to be excluded immoralities which are not of enough consequence to be prosecuted, and immoralities which the public welfare requires should remain unprosecuted. § 17. Distinction between public and private remedies. The common law may be defined to be right reason, appli- cable to present issues, in analogy with prior rulings of the courts and opinions of authoritative jurists. In accord- ance with this view, and adopting the principle that crimes at common law, apart from statute, are offenses which public policy manifestly requires to be prosecuted by the State, we may be able to give logical expression to the distinction between wrongs which can be redressed only by private suit, and wrongs the perpetrators of which may be proceeded against by public prosecution. That such a distinction exists in practice we have numerous instances. I may have a right to have the air about me pure; but this does not make it an indictable offense for a neighbor to invade this right by opening on his Jand a drain whose odors reach to no one but myself. I may exclude trespassers from my grounds; I may sue then for damages caused by their trespass; but I cannot, for the mere trespass, 2Tnfra, §§ 108-113. Meyer, § 4, while concurring in 8 See remarks of Bramwell, J., in the reasoning of the text, makes the Cowan vy. Milbourn, L. R. 2 Exch. test incompatibility with the well- 236, 36 L. J. Exch, N. S. 124, 16 L. being of the Commonwealth. T. N. S. 290, 15 Week. Rep. 750; 2 Stephen, History, Crim. Law, 75 et seq. 22 CRIMINAL LAW. (§ 17 if there be no malicious hurt inflicted, prosecute them criminal- ly. On the other hand, if the drain is such as to affect the community injuriously, or the trespass be conducted in such a way as to threaten the public peace, an indictment lies. The reason for this, if the above definition be correct, is that public policy in the first class of cases does not require the State to intervene, while in the second class of cases it does so require. In other words, in all matters in which the peace, order, or health of the community is not concerned, a sound social economy requires that men should settle their differences by themselves, either by compromise or private suit, just as a gound social economy requires that they should conduct their own business and regulate their own families, provided that in so doing they do not threaten public peace, or disturb public comfort, or create public scandal. As to acts threatening public peace, however, or disturbing public comfort, or creating public scandal, it is the duty of the State to intervene. We have abundant illustrations of this dis- tinction in other departments of social science, the principle being that it is not within the province of the State to enforce duties purely private. A board of health, for instance, may properly forbid unwholesome food to be sold in a market, but it cannot properly forbid an individual from eating food that will probably make him sick. Public scandalous drunkenness, to take another illustration, is indictable at common law; but common drunkenness which is not a public scandal is not indictable. The same distinction applies to remedies. The State js only justified in intervening to protect interests that concern itself directly; and if wrongs be committed strictly private in their character, then these wrongs must be redressed by private suit. It may be said that a distinction of this kind, based on public policy, is one to be laid down, not by the courts, but by the legislature.’ This is no doubt the case where there is a Code which undertakes to cover the whole ground, so that no offense is indictable which is not made indictable by the Code. It is otherwise, however, when offenses are to be defined by the common law. In the latter case, there is a wide range of offenses 1See infra, § 41. § 17] DEFINITION AND ANALYSIS OF CRIME. 23 as to which the judges are obliged to apply the test of public policy. The banks of a canal, for instance, or the embankments of a railroad, are wantonly torn down by a marauder. The case is one of first impression in the courts, as no one has here- tofore been prosecuted for doing this particular thing. Is the offense indictable as malicious mischief? It certainly would not be where nobody but the owner is affected by the trespass, and where no specific malice to such owner is shown. Yet as it is in consequence of the danger to the public if canals or railroads be subject to depredations of this kind,—. e., on grounds of public policy,—such an offense would be held indict- able? I may be standing by a river-side,—to take another illustration,—and see a man drowning. I do not help him out, though I could readily do so; but as omissions to perform acts of charity cannot be made indictable without great disarrange- ment of industry, I am not indictable for this omission, immoral as it is. I am indictable, however, on the grounds of public policy, if, being charged, as a public officer, with the protection of persons bathing on the spot, or having undertaken specially to protect this particular person, I neglect to perform my duty.® the privileges of other persons. 2 See infra, §§ 1315 et seq. 8 Infra, §§ 167, 172. German theories.—Several theo- ries have been proposed in Germany as to the distinction between public and private wrongs. By Stahl a crime assails and defies the dominion and dignity of the State by positive assaults, which are by themselves under all circumstances (in thesi) a violation of law; while there is no such defiance in civil wrongs, since here we have exclusively to do with acts which are only unlawful (in hypothesi) under the given relations. On the other hand, Berner and Kdést- lin, representing the Hegelian School, include under crimes exclusively the conscious resistance of the general will by the individual will; under civil wrongs exclusively, acts whose perpetrators are unconscious of wrong. By Hiilschner crimes con- sist of absolute wrongs, that is to say, wrongs as against the objective existing law; while civil wrongs are merely relative, that is to say, wrongs exclusively directed against Geib, ii. 175. That there is any definable distinction is denied by Bekker, Theorie, s. 108; Geib. ii. 173; Merkel, Abt. i. p. 41; and Bind- ing, Normen, s. 172 et seq. By the latter writer the view in the text is assailed elaborately. Blackstone’s distinction that “civil injuries are private wrongs and con- cern individuals only, while crimes are public wrongs and affect the whole community,” is objected to by Austin on the ground that many crimes are private wrongs, and many civil injuries affect the whole com- munity. See Rex. v. Trafford, 1 Barn. & Ad. 874, 9 L. J. Mag. Cas. 66, 1831; Reg. v. Paget, 3 Fost. & F. 29, 1862; Respublica v. Teischer, 1 Dall. 335, 1 L. ed. 163, 1788; Dobbin’s Distillery v. United States, 96 U. S. 395, 24 L. ed. 637, 1877. Mr. Austin begs the question in his own definition: “The difference” he says, “between crimes and civil injuries is not to be sought for in a supposed difference between their 24 CRIMINAL LAW. (§ 17 This, however, concerns the subject-matter of crime. So far as concerns the form, the distinction is that criminal wrongs are punishable by the State, while for civil wrongs redress is ob- tained at the suit of the party injured.* A wrong, however, may be in one aspect civil, in another criminal.® § 18. English common law in force in the United States. The common law of England was adopted as a part of their own common law by such of the American colonies as were of English settlement, and is operative in the states em- bracing or peopled from such colonies.* seen, even in states where the tendencies, but in the difference be- tween the modes wherein they are respectively pursued, or wherein the sanction is applied in the two cases. An offense which is pursued at the discretion of the injured party or his representative is a civil injury. An offense which is pursued by the sovereign, or by the subordinates of the sovereign, or, as in England, in the name of the sovereign, is a crime.” Austin, Jur. 1863, ed. ii. 72; 1869, ed. 1092, adopted in Na- smith, Inst. 63. The defects of this distinction are pointed out in Wharton, Am. Law, §§ 56 et seq. Sir Henry Maine’s explanation of the origin of the distinction leads to the definition in the text. A crime, he tells us, in the original conception of the term, was an act “involving such high issues that the State, in- stead of leaving its cognizance to the civil tribunal or the religious court, directed a special law or privilegium against the perpetrator.” Maine, Ancient Law, 1870, 372. 4 Mere indictability is not the test, since there are cases in which an indictment is prescribed merely as a civil remedy. Reg. v. Paget, 3 Fost. & F. 29, 1862; Bancroft v. Mitchell, L. R. 2 Q. B. 549, 8 Best & S. 558, 36 L. J. Q. B. N.S. 257, 16 L. T. N. S. 558, 15 Week. Rep. 1132, 1867. Suit for penalty.—Similarly, a suit for a penalty, though civil in form, is really criminal in its nature. Boy d v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524, 1886; Lees v. United States, 150 And, as is elsewhere common law is by legislation U. 8. 476, 37 L. ed 1150, 14 Sup. Ct. ‘Rep. 163, 1893. Provided the action prohibited be an offense either at common law or by statute. Huron v. Carter, 5 S. D. 4, 57 N. W. 947, 1894. 5 Infra, § 45. 1 English statutes in force at date of declaration of American Inde-- pendence, and applicable to our sit- uation, are a part of the common law which we have adopted. See cases cited infra, §§ 20 et seq.[Fed.] See Shively v. Bowlby, 152 U. S. 1, 52, 38 L. ed. 331, 350, 14 Sup. Ct. Rep. 548, 567, 1893. [Ala.] State v. Cawood, 2 Stew. (Ala.) 360, 1830; Barlow v. Lambert, 28 Ala. 704, 65 Am. Dec. 374, 1856; Burt v. State, 39 Ala. 617, 637, 1866; Fergu- son v. Selma, 43 Ala. 398, 1869; Wiley v. Ewing, 47 Ala. 418, 424, 1872; Simpson v. State, 59 Ala. 1,31 Am. Rep. 1,1877; Nelson v. McCrary, 60 Ala. 301, 1877; Ex parte Hardy, 68 Ala. 303 (dis. op.) 1880. [Alaska] Re Burkell, 2 Alaska, 108, 1903, and McFarland v. Alaska Preseverance Min. Co. 3 Alaska, 308, 1907 (in so far as suited to the conditions of the country, and the necessities of the people require). [Conn.] State v. Danforth, 3 Conn. 112, 1819; Card v. Grinman, 5 Conn. 164, 168, 18238; Baldwin v. Walker, 21 Conn. 168, 181, 1851. [Fla.] Stewart v. Stearns & C. Lumber Co. 56 Fla. 570, 24 L.R.A.(N.S.) 649, 48 So. 19, 1908. [1l.] Smith v. People, 25 Ill. 17, 76 Am. Dec. 780, 1860. ([Ind. Terr.] § 18] DEFINITION AND ANALYSIS OF CRIME. declared not to be in force, it nevertheless remains in force for Carter v. United States, 1 Ind. Terr. 852, 37 S. W. 204, 1896. [Iowa] State v. Twogood, 7 Iowa, 252, 1858; Klumpert v. Vrieland, 142 Iowa, 434, 121 N. W. 34, 1909. [Kan.] Parsons v. Lindsay, 41 Kan. 336, 13 L.R.A. 658, 13 Am. St. Rep. 290, 21 Pac. 227, 1889; Arkansas City Bank v. Swift, 57 Kan. 467, 46 Pac. 950, 1896; [Ky.] Lathrop v. Commercial Bank, 8 Dana, 114, 33 Am. Dec. 481, 1839; Atna Ins. Co. v. Com. 106 Ky. 864, 45 L.R.A. 355, 51 S. W. 624, 1899. [Me.] State v. Smith, 32 Me. 369, 54 Am. Dec. 578, 1851. [Mass.] Com. v. Newell, 7 Mass. 245, 1810; Com. v. York, 9 Met. 93, 43. Am. Dec. 373, 1845; Com. v. Chapman, 13 Met. 68, 1847; Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850; Com. v. Macloon, 101 Mass. 1, 10, 100 Am. Dec. 89, 1869; [Mich.] Re High, 2 Dougl. (Mich.) 515, 1847; Stout v. Keyes, 2 Dougl. (Mich.) 184, 43 Am. Dec. 465, 1845; Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435, 1860. [Minn.] State v. Pulle, 12 Minn. 164, Gil. 99, 1866. [Miss.] Vicksburg & J. R. Co. v. Patton, 31 Miss. 156, 66 Am. Dec. 552, 1856; Hemingway v. Scales, 42 Miss. 1, 2 Am. Rep. 586, 97 Am Dec. 425, 1868. [Mo.] Mathieson v. St. Louis & S. F. R. Co. 219 Mo. 542, 118 S. W. 9, 1909; State v. Dalton, 134 Mo. App. 517, 114 S. W. 1132, 1908; State ex rel. O'Malley v. Musick, 145 Mo. App. 33, 130 S. W. 398, 1910. [Mont.] Territory v. Ye Wan, 2 Mont. 478, 1876. [Neb.] Berlet v. Weary, 67 Neb. 75, 60 L.R.A 609, 108 Am. St. Rep. 616, 93 N. W. 238, 2 A. & E Ann. Cas. 610, 1903; Kinkead v. Turgeon, 74 Neb 573, 1 LRA(NS) 762, 7 LRA. (N.S.) 316, 121 Am. St. Rep. 740, 104 N. W. 1061, 109 N. W. 744, 13 A. & E. Ann. Cas. 43, 1906. [Nev.] Hamilton v. Kneeland, 1 Nev. 40, 2 Mor. Min. Rep. 583, 1865 (declared in Re Fair, 132 Cal. 534, 84 Am. St. Rep. 70, 60 Pac. 457, 64 Pac. 1000, 1901, to be against the weight of authority on doctrine as to applica- bility of common law in states con- stituted out of territory not derived from England; see also note to same effect in 16 L.R.A (N.S.) 1150); Ex parte Blanchard, 9 Nev. 101, 1874; Evans v. Cook, 11 Nev. 69, 75, 1876; Burke v. Buck, 31 Nev. 74, 22 L.R.A. (N.S.) 627, 99 Pac. 1078, 1909. [N. H.] State v. Rollins, 8 N. H. 550, 1837; State v. Moore, 26 N. H. 448, 59 Am. Dec. 354, 1853. [N. Y.] Lindenmuller v. People, 33 Barb, 548, 1861; Kernochan v. New York Elev. R. Co. 8 N. Y. Supp. 648, 1890; Loomis v. Edgerton, 19 Wend. 419, 1838. [N. C.] State v. Huntly, 25 N. C. (3 Ired. L.) 418, 40 Am. Dec. 416, 1843. [Pa.] Re Pennock, 20 Pa. 268, 59 Am. Dec. 718, 1853. [Tenn.] Grisham v. State, 2 Yerg. 589, 1831; McGinnis v. State, 9 Humph. 43, 49 Am Dec. 697, 1848. [Tex.] See St. Louis & S. F. R. Co. v. Summers, 51 Tex. Civ. App. 133, 111 S. W. 211, 1908; Hyde v. State, 16 Tex. 445, 67 Am. Dec. 630, 1856. [Vt.] State v. Briggs, 1 Ark. (Vt.) 226, 1826; Clement v. Graham, 78 Vt. 290, 63 Atl. 146, 1903. [Va.] Norfolk & W. R. Co. v. Virginian R. Co. 110 Va. 631, 66 S. E. 863, 1910. [Wash.] State v. Mays, 57 Wash. 540, 107 Pac. 363, 1910. See notes 41 Am. Dec. 301; 43 Am. Dec. 465; 49 Am Dec. 619; 59 Am. Dec. 354, 359; 59 Am. Dec. 718, 728; 97 Am. Dec. 428; 18 Am. St. Rep. 291; 22 L.R.A. 502, 510; 24 LRA. 667; 27 L.R.A. 281; 27 L.R.A. 762; 28 L.R.A. 566; 35 LRA. 41; 39 L.R.A. 82; 57 L.R.A. 426; 59 LRA. 407. —The common law is still the law of the land except in so far as it is changed by statute. Beaver v. Put- nam, 110 Va. 718, 67 S. E. 353, 1910. —Applies to criminal cases as well as to civil cases. [Ala.] Burt v. State, 39 Ala. 617, 637, 1866. [Iowa] State v. Twogood, 7 Towa, 252, 1858. [La.] State McCoy, 8 Rob. (la) 545, 41 Am. Dec. 301, 1844. [Me.] State v Smith, 32 Me. 369, 54 Am. Dec. 578, 1851. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dee, 26 711, 1850 (common-law distinctions between murder, manslaughter, and justifiable homicide are a part of the law of Massachusetts) ; Com. v. Mac- loon, 101 Mass. 1, 10, 100 Am. Dec. 89, 1869. [N. H.] State v. Moore, 26 N. H. 448, 59 Am, Dec. 354, 1853. [N. Y.] Lindenmuller v. People, 33 Barb. 548, 1861. [Tenn.] McGinnis v. State, 9 Humph. 43, 49 Am. Dec. 697, 1848 (statutes and Constitutions must be construed with reference to the common law). [Tex.] Hyde v. State, 16 Tex. 445, 67 Am. Dec. 630, 1856. —Principles of common law not ap- plicable to situation to which not adapted; cessante ratione legis, ces- sat ipsa lew. [Fed.] Van Ness v. Pacard, 2 Pet. 137, 7 L. ed. 374, 1829 (while our ancestors brought with them the general principles of the common law, and claimed it as their birthright, they adopted only that portion of the common law applicable to their situation). [Ala.] Simpson v. State, 59 Ala. 1, 18, 31 Am. Rep. 1, 7, 1877 (repudiating the common- law rule as to spring guns). [IIl.] Boyer v. Sweet, 4 Ill. 120, 1841 (de- claring only that portion of common law applicable to conditions adopted; Seeley v. Peters, 10 Tl. 130,142, 1848 (repudiating the common-law doc- trine requiring owner of cattle to keep them on his own land). [Iowa] Wagner v. Bissell, 3 Iowa, 396, 403, 1856 (refusing to apply common-law rule as to trespassing animals) ; Pier- son v. Lane, 60 Iowa, 60, 64, 14 N. W. 90, 92, 1882 (declining to apply statute de donis). [Mich.] Perrin v. Lepper, 34 Mich. 292, 295, 1876 (common-law doctrine of attornment repudiated). [Neb.] Slattery v. Har- ley, 58 Neb. 575, 79 N. W. 152, 1899, and Crawford Co. v. Hathaway (Crawford Co. v. Hall), 67 Neb. 335, 60 L.R.A. 896, 108 Am. St. Rep. 647, 93 Pac. 784, 1903 (declaring com- mon-law rule as to riparian rights modified by statute). [Nev.] Reno Smelting, Mill. & Reduction Works v. Stevenson, 20 Nev. 269, 277, 4 L.R.A. 60, 63, 19 Am. St. Rep. 364, 368, 21 Pac 317, 319, 1889 (repudiating common-law doctrine of riparian rights). [N. H.] Lisbon v. Lyman, 49 N. H. 553, 582, 1870 (declining to follow the common-law rule as to CRIMINAL LAW. [§ 18 presumptions). [S. D.] Lone Trec Ditch Co. v. Cyclone Ditch Co. 15 S. D. 529, 91 N. W. 355, 1902 (de- claring common-law doctrine of ri- parian rights inapplicable in arid states). —Does not apply to laws of Eng- land since the Declaration of Inde- pendence. See Liverpool & G. W. Steam Co. v. Phenix Ins. Co. (The Montana) 129 U. S. 397, 445, 32 L. ed. 788, 793, 9 Sup. Ct. Rep. 469, 1888; Wickersham v. Johnston, 104 Cal. 407, 411, 34 Am. St. Rep. 118, 120, 38 Pac. 89, 1894. —Does not apply to states erected out of territory derived from coun- tries other than England; and where neither the common nor the statu- tory laws of:-England have formerly prevailed, there is no presumption that the common law does exist, ex- cept as expressly declared by the Constitutions and statutes of such states. Norris v. Harris, 15 Cal. 226, 253, 1860; Re Fair, 132 Cal. 523, 84 Am. St. Rep. 70, 60 Pac. 453, 64 Pac. 1000, 1901; Herr v. Johnson, 11 Colo. 393, 18 Pac. 342, 1888 See note in 16 L.R.A.(N.S.) 1150. Those principles of the common law inconsonant with the circum- stances of the people or the condi- tion of the country, or repugnant to the spirit of American institutions, were not adopted with the common law. Barnes v. Midland R. Terminal Co. 193 N. Y. 378, 127 Am. St. Rep. 962, 85 N. E. 1098, 1908, reversing 126 App. Div. 435, 110 N. Y. Supp. 545, 1908. —Does not apply to United States as a nation. The nation consists of a federation of independent sover- eignties, which each surrender cer- tain of their powers and vest them in the Federal government for the com- mon welfare in governmental mat- ters. The Federal government suc- ceeded to none of the prerogatives of the English Crown under the common law, and can exercise no powers ex- cept such as are specifically delegat- ed and conferred upon it. [Fed.] Martin v. Hunter, 1 Wheat. 304, 326, 4 L. ed. 97, 102, 1816; Scott v. Sandford, 19 How. 393, 532, 15 L. ed. 691, 753, 1856; Legal Tender Cases, 12 Wall. 457, 532, 20 L. ed. 287, 306, § 18] the purpose of interpreting legislative action.? DEFINITION AND ANALYSIS OF CRIME. 27 We have a curious illustration of this in Texas, where it was at one time required that an offense should be “expressly defined” by stat- ute. This was found to be impracticable; and now the common law is resorted to for a definition of statutory terms.* 1871; United States v. Harris, 106 U. S. 629, 636, 27 L. ed. 290, 292, 1 Sup. Ct. Rep. 606, 1883; Re Burrus, 136 U. S. 586, 605, 34 L. ed. 500, 506, 10 Sup. Ct. Rep. 850, 1890; Re Barry, 42 Fed. 113, 1844; United States v. Boyer, 85 Fed. 425, 1898. [Ark.] Hawkins v. Filkins, 24 Ark. 286, 300, 1866. [N. H.] Beavins’s Petition, 33 N. H. 89, 94, 1856. [Va.] Draper v. Gorman, 8 Leigh, 628, 633, 1837. [Wis.] Re Booth, 3 Wis. 18, 125, 1854; Re Booth, 3 Wis. 157, 194, 1854. —There is no common law of the United States distinct from the local common law adopted by the several states. See, among other cases, [Fed.] Pennsylvania v. Wheeling & B. Bridge Co. 18 How. 518, 564, 14 L. ed. 249, 268, 1851; Smith v. Ala- bama, 124 U. S. 465, 478, 31 L. ed. 508, 512, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564, 1887; Bucher v. Cheshire R. Co. 125 U. S. 555, 584, 31 =L. ed. 795, 799, 8 Sup. Ct Rep. 974, 978, 1887; Re Burrus, 136 U. 8. 586, 592, 608, 34 L. ed. 500, 502, 507, 10 Sup. Ct. Rep. 850, 1890; Re Barry, 42 Fed. 120, 1844; Phipps v. Harding (Hudson Furniture Co. v. Harding), 30 L.R.A. 513, 518, 17 C. C. A. 203, 34 U. S. App. 148, 70 Fed. 468, 475, § 1895; United States v. Garlinghouse, 4 Ben. 194, 205, Fed. Cas. No. 15189, 1870; United States v. New Bedford Bridge, 1 Woodb. & M. 401, 447, Fed. Cas No. 15867, 1847. [Iowa] Gatton v. Chicago, R. I. & P. R. Co. 95 Iowa, 112, 132, 28 L.R.A. 556, 563, 63 N. W. 589, 596, 1895. [N. M.] Bray v. United States, 1 N M. 4, 1852. Federai courts—Criminal-law juris- diction.—It is now settled that the Federal courts have no common-law criminal jurisdiction. Re Greene, 52 Fed. 104, 1892; United States v. Eaton, 144 U. S. 677, 36 L. ed 591, 12 Sup. Ct. Rep. 764, 1892. See infra, § 294, —In Indiana the rule is that the criminal-law side of the English com- mon law is not in force; Hickney v. State, 8 Ind. 494, 1856; Marvin v. State, 19 Ind. 181, 1862; Jones v. State, 59 Ind. 229, 1877; Stephens v. State, 107 Ind. 185, 8 N. E. 94, 1886 —In Iowa the criminal-law side of the English common law is in force to a limited extent. See Estes v. Carter, 10 Iowa, 400, 1860. —In Louisiana the English com- mon law has been established by statute. State v. Davis, 22 La. Ann. TT, 1870. —In Missouri the criminal-law side of the English common law is in force to a limited extent. See Ex parte Meyers, 44 Mo. 279, 1869. —The New York Penal Code of 1882 appears to abolish the common law (§ 2); but see § 675, which, but for the insertion of the word “wil- fully” would be a re-enactment of the common law —In Ohio it has been held that the criminal side of the English common law is not in force. Vanvalkenburg v. State (1842) 11 Ohio, 404; Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355, 1861. —In Pennsylvania as to, see infra, 32. The evolution of the common law in America is discussed in Wharton, Am. Law, §§ 24 et seq. Ecclesiastical or canon law, how far effective in this country, is con- sidered infra, §§ 24, 2062, 286. Sce Grisham v. State, 2 Yerg. 589, 1831. 2Wharton, Am. Law, §§ 12, 201. See infra, §§ 41, 296. Act made unlawful, and no pro- ceeding specified, must be prosecuted according to the forms of the com- mon law. State v. Parker, 91 N. C. 650. 1884. 3 Ex parte Bergen, 14 Tex. App. 52, 1883; Prindle v. State, 31 Tex. Crim. Rep. 551, 37 Am. St. Rep. 833, 21S. W. 360, 1893. 28 CRIMINAL LAW. [g 19 § 19. Want of English common-law authorities does not preclude an offense from being indictable at common law in the United States. Certain points of difference, how- ever, between the penal policy of England,’ and that of the United States must be kept in mind in determining how far the want of common-law authority in one country is to weigh upon the courts of the other.? There is a grade of offenses, in the first place, comprehending adultery, fornication, and lewd- ness in general, together with those misdemeanors connected more particularly with the conduct of the rites and observ- ances of religion, which in England is cognizable chiefly in the ecclesiastical courts, but which with us is in many states pun- ished by indictment at common law. In England, in the sec- ond place, from the earliest period of judicial history, statutes were from time to time passed which defined the limits and de- termined the punishment of almost every offense, as it in its turn attracted legislative action. Thus, in the English books, few cases are found of malicious mischief at common law; pen- alties more summary than the common law afforded being pro- vided for the protection of each species of property as it became the object of investment. No case, for instance, is to be found of an indictment at common law for malicious injury done to locks or other improvements on navigable rivers, because, as soon as locks were introduced into England, and canals built, such offenses, by the statute of 1 Geo. II. Stat. 2, chap. 19, were made felonious, and were subject to transportation.’ So, though elementary writers agree that the destruction of an in- fant en ventre sa mere is indictable at common law,* no case is. to be found in England where such is adjudged by the courts, the statute of 43 Geo. III. chap. 58, making it a felony, being Offense not defined by statute— common-law definition prevails —In general, whenever an offense is not defined by the statute prohibiting it, its definition is to be sought at com- mon law. [Fed.] United States v. King, 34 Fed. 302, 1888; Re Greene, 52 Fed. 104, 1892. [Ind.] Wall v. state, 23 Ind. 150, 1864. [La.] State v. Williams, 34 La. Ann. 87, 1883; State v. Hagan, 45 La. Ann. 839, 12 So, 929, 1893. See infra, §§ 754, 758, 760 1 Bl Com. 65 w; 1 Hawk. P. C. chap. 5, § 1; 1 Hast, P. C. chap. 1, § 1; 1 Russell, Crimes, 46. 2Grisham vy. State, 2 Yerg. 589, 1831. 3 See infra, §§ 1816, 1317. 4Bracton, 1. 3, chap. 21; 3 Co Inst. 50; 1 Hawk P. C. 94; Butcher v. Butcher, 1 Ves. & B. 98, 12 Re- vised Rep. 193; 1 Russell, Crimes, 671. Infra, § 781. § 19) DEFINITION AND ANALYSIS OF CRIME. 29 enacted about the time when the offense first required the action of the public authorities. The want of English precedents in such cases does not show that offenses of such character were not cognizable at common law; it shows only that at an early period common-law reme- dies gave way to statutes with provisions more specific and pen- alties more severe. Many offenses, accordingly, which have been punished exclusively by statute in England, have been brought in this country within common-law sanction, and have been considered misdemeanors. We cannot infer the nonin- dictability of such offenses at common law because they are in- dictable in England only under statutes which we have not re- enacted. The want of English common-law authority in many cases of this class is attributable not to the nonindictability of the offenses at common law,* but to the fact that statutes im- posing severe penalties on the offense, and absorbing by their terms the common law, were passed before common-law affirma- tions of the indictability of the offense were reported. As said by the supreme court of Vermont in a case adopted afterward in New York: “The English statutes were so ancient, and the punishment so severe, that they were, of course, resorted to, and 5 All wrong subject to criminal ac- tion.—There is no public wrong that is not the subject of criminal action at common law; e. g., it has been held indictable unlawfully and in- juriously to carry a child infected with the smallpox along the public streets (Rex v. Vantandillo, 4 Maule & S. 73, 16 Revised Rep. 389, 1815; Rex v. Burnett, 4 Maule & S. 272, 16 Revised Rep. 468, 1815); to show a monster for money (Herring v. Wal- round, 2 Ch. Cas. 110, 1683); to put combustible materials on board a ship without giving notice of the contents (1 Russell, Crimes, 441; Williams v. East India Co. 3 East, 192, 201, 6 Revised Rep. 589, 1802); to overwork chil- dren in a factory (2 Twiss’s Life of Eldon, 36); to change contents of samples, so as to make a cargo ap- pear of better quality than it is (Reg. v. Vreones, 1 Q. B. 360, s. c. 17 Cox, C. C. 267, 60 L. J. Mag. Cas. N. S. 62, 64 L. T. N. S. 389, 39 Week. Rep. 365, 55 J. P. 536, 1891); and to solicit another to commit a felony (Com. v. Randolph, 146 Pa. 83, 28 Am St. Rep. 782, 23 Atl. 388, 1892; State v. Bowers, 35 S. C. 262, 15 L.R.A, 199, 28 Am. St. Rep. 847, 14 So. 488, 1892); even though the solicitation is ineffectual, and the crime is not committed (Com. vy. Flagg, 135 Mass. 545, 1883); but a solicitation to commit a misdemeanor is not indictable (Smith v. Com. 54 Pa. 209, 93 Am. Dec. 686, 1867). As to no wrong without a remedy, see Co. Litt. 197 b; 1 Thomas’s Coke, 902; Lord Holt’s language in Ashby v. White, 2 Ld. Raym. 938, 1 Smith, Lead. Cas. *842, *856, 1703; Chief Justice Ames’s language in Reynolds v. Hoxsie, 6 R. I. 463, 468, 1860; quoted with approval in Pierce v. Swan Point Cemetery, 10 R. I. 227, 14 Am. Rep. 667, 679, 1872. 30 «CRIMINAL LAW. [§ 19 the common law thus lost sight of, though the statutes were in- tended as a mere increase of its penalties.” ° § 20. Offenses indictable here, though punishable in England by statute only. It has been held by us, therefore, in application of the reasoning just stated, that whatever, in the first place, is provocative of public disturbance ;* or, in the second place, consists of malicious injury to another’s property in such a way as to provoke violent retaliation ; ? or, in the third place, constitutes a public scandal or indecency,* is indictable in this country, although in England the offense is punishable now only by statute, or in the ecclesiastical courts. § 21. —Disturbances of the public peace indictable at common law. (1) Acts, therefore, provocative of public dis- turbance, are indictable though there be no English precedent for the indictment. Hence it has been held indictable to drive a carriage through a crowded street in such a way as to endanger the lives of the passers-by ;? to disturb a congregation when at religious worship ;* to go about armed with dangerous and un- usual weapons, to the terror of citizens; * to raise a liberty pole in the year 1794, as a notorious and riotous expression of ill-will to the government; * to tear down forcibly and contemptuously an advertisement set up by the commissioners, of a sale of land for county taxes; ° to agree to fight, though no fight takes place; ° to break into a house in the day or nighttime, and disturb its inhabitants; 7 violently to disturb a town meeting, though the _8[Ala.] State v. Cawood, 2 Stew. (Ala.) 360, 1830. [N. Y.] Loomis v. Edgerton, 19 Wend. 419, 1838. [N. C.] State v. Simpson, 9 N. C. (2 Hawks) 460, 1823. [Vt.] State v. Briggs, 1 Aik (Vt.) 226, 1826. See opinion of Shaw, Ch. J., in Com. v. Chapman, 13 Mete. 68, 1847. 1See §§ 1869-1875. 2 See, on this point, Rex v Wheat- ley, 7 Law. Rep. N. 8. 88, 89, 1761, and infra, § 1316. 8 See infra, §§ 1676 et seq. 1701, 1717, 1745. 1 United States v. Hart, Pet. C. C. 390, Fed. Cas. No. 15316, 1817. See infra, §§ 1852 et seq. 2State v. Jasper, 15 N.C. (4 Dev. L.) 3238, 1833. Infra, § 24. 8 State v. Huntly, 25 N. C. (8 Ired. L.) 418, 40 Am. Dec. 416, 1843, Compare, Simpson v. State, 5 Yerg. 356, 1833, Peck, J., dissenting. 4Com. v. Morrison, Addison (Pa.) 274, 1795. See Adams’s Gallatin, 123 et seq. : Compare: Allegheny v. Zimmer- man, 95 Pa. 287, 40 Am. Dec. 649, 1880, where the court appears toa ignore the case in Addison. 5Com. v. Gillespie, Addison (Pa.) 267, 1795. 6 State v. Hitchens, 2 Harr. (Del.) 527, 1832. Infra, § 2116. 7Com. v. Taylor, 5 Binn. 277, set Hackett v. Com. 15 Pa. 95, § 22) DEFINITION AND ANALYSIS OF CRIME. 32 parties engaged were not sufficient in number to amount to riot; * to attempt to kidnap another; ® and, in short, to do any act which may create a public disturbance, provided that such be the natural consequence of the act. § 22. —Malicious mischief indictable at common law. (2) It has also been generally held in this country that acts of malicious mischief, when producing a wanton injury to another’s property, so as to provoke violent retaliation, are indictable. Thus, it has been held indictable maliciously to destroy a horse," a cow,” a steer,® or other beast, which may be the property of another ; * to be guilty of wanton cruelty to animals in general, when the essential ingredient of malice toward the owner is present,® or the offense is a public scandal; ® to cast the carcass of an animal in a well in daily use;7 maliciously to poison chickens, or maliciously break windows; * mischievously to set fire to a number of barrels of tar;° to girdle or otherwise ma- liciously injure trees kept either for use or ornament; to 8Com. v. Hoxey, 16 Mass. 385, 1820. Infra, § 1872. 9Infra, § 776. State v. Rollins, 8 N. H. 550, 1837. 1Infra, §§ 1816 et seq ([Fed.] Respublica v. Teischer, 1 Dall. 335, 1 L. ed. 163, 1788. [Mass.] Com. v. Leach, 1 Mass. 59, 1804. [N. Y.] People v. Smith, 5 Cow. 258, 1825. [N. C.] State v. Scott, 19 N. C. (2 Dev. & B. L.) 35, 1836. [Tenn.] State v. Council, 1 Overt. 305, 1808 (though this case has since been denied); Taylor v. State, 6 Humph. 285, 1845; Shell v. State, 6 Humph. 283, 1845. See also Wharton, Prec. 213. 2Com. v Leach, 1 Mass. 59, 1804; People v. Smith, 5 Cow. 258, 1825. 8 State v. Scott, 19 N. C. (2 Dev. & B. L.) 35, 1836; Wharton, Prec. 213. 4 Test of indictability is whether or not the offense tends to provoke a breach of the peace. [N. Y.] Kilpat- rick v. People, 5 Denio, 277, 1848; Loomis v. Edgerton, 19 Wend. 419, 1838. [Tex.] Illies v. Knight, 3 Tex. 312, 1849. [Vt.] State v. Wheeler, 3 Vt. 344, 23 Am. Dec. 212, 1830. [Va.] Henderson v. Com. 8 Gratt. 708, 56 Am. Dec. 160, 1852. Destroying harness has been held to be malicious mischief. People v. Moody, 5 Park. Crim. Rep. 568, 1864. But see Shell v. State, 6 Humph. 283, 1845. 5 State v. Briggs, 1 Aik. (Vt.) 226, 1826. See Rex v. Wheatley, 7 Law Rep. N. S. 89, 90, 1861. 6 United States v. Logan, 2 Cranch, C. C. 259, Fed. Cas. No. 15623, 1821; United States v. Jackson, 4 Cranch, C. C. 483, Fed. Cas No. 15453, 1834. 7 State v. Buckman, 8 N. H. 203, 29 Am. Dec. 646, 1836. 8 Respublica v. Etischer, 1 Dall. 335, 1 L. ed. 163, 1788. The better opinion now is that, to make such an offense indictable, it must be done either secretly and in the nighttime (Kilpatrick v. People, 5 Denio, 277, 1848) ; or in such a way as to provoke a breach of peace (State v. Phipps, 32 N. C. [10 Ired. L.] 17, 1848). 9State v. Simpson, 9 N. C. (2 Hawks) 460, 1823. 10 Loomis v. Edgerton, 19 Wend. 419, 1838; Com. v. Eckert, 2 Browne (Pa.) 249, 1812. Contra, Brown’s Case, 3 Me. 177, 1824. And see decision, infra, §§ 1317 et seq. 32 CRIMINAL LAW. [§ 22 administer deleterious substances; to discharge a gun with the intention of annoying and injuring a sick person in the im- mediate vicinity; * to break into a room with violence for the same purpose; * to go armed upon the porch of another man’s house, and from thence shoot and kill a dog of the owner of the house, lying in the yard, in the absence of the male mem- bers of the family, and to the terror and alarm of the females in the house; '* though it is not an indictable offense to remove a stone from the boundary line between the premises of A and B with the intent to injure B; ’ nor to shave and crop the hair from a mare’s tail in a stable; '* nor to frequent a neighbor’s house, and grossly abuse his family, if there be no assault.” § 23. —Public scandal and indecency indictable at com- mon law. (3) On the same reasoning it has been held to be indictable to do an act which is a great scandal or public in- sult to the community.’ Under this head it has been held in- dictable to cast a dead body into a river without the rites of Christian sepulture ; * to be guilty of eavesdropping ; * to know- ingly sell noxious food; * to sell a wife;® to disinter a dead body without proper authority;* to give more than a single llInfra, § 805; Com. v. Stratton, 114 Mass. 303, 19 Am. Rep. 350, 1873; People v. Blake, 1 Wheeler, C. C. 490, 1823. At common law—See, however, at common law, Reg. v. Hanson, 2 Car. & K. 912, 4 Cox, C. C. 188, 1849. Reg. v. Walkden, 1 Cox, C. C. 282, 1845; Reg. v. Dilworth, 2 Moody & R. 531, 1845. 12 Com. v. Wing, 9 Pick. 1, 19 Am. Dec. 347, 1829. 13Com. v. Taylor, 5 Binn. 277, 1812. 14 Henderson v. Com. 8 Gratt. 708, 56 Am. Dec. 160, 1852. 15 State v. Burroughs, 7 N. J. L. 426, 1802. Or to remove B’s tree, see Com. v. Powell, 8 Leigh, 719, 1857. 16 State v. Smith, Cheves, L. 157, 1840. Contra, Boyd v. State, 2 Humph. 39, 1840. 17. Com. v. Edwards, 1 Ashm, (Pa.) 46, 1823. 1See infra, generally, §§ 1676 et seq. 2 Kanavan’s Case, 1 Me. 226, 1821. Infra, § 1702. Not a misdemeanor to burn a dead body, unless so done as to cause a public nuisance, or in order to pre- vent the coroner from holding an in- quest. Reg. v. Price, L. R. 12, Q. B. Div. 247, 15 Cox, C. C. 389, 53 L. J. Mag. Cas. N. S. 51, 33 Week. Rep. 45, note, 8 Eng. Rul. Cas. 467, 1884; Reg. v. Stephenson, L. R. 18 Q. B, Div. 331, 15 Cox, C. C. 679, 53 L. J Mag. Cas. N. 8. 176, 52 L. T. N. 8. 267, 33 Week. Rep. 44, 49 J. P. 486, 4 Am. Crim. Rep. 593, 1884. 8 State v. Williams, 2 Overt. 108, 1808; Com. v. Lovett, 4 Clark (Pa.) 5, 1831. See infra, § 1717. 4State v. Smith, 10 N. C. (8 Hawks) 378, 14 Am. Dec. 594, 1824; State v. Norton, 24 N. C. (2 Ired. L.) 40, 1841. 5 Or a girl for prostitution. Rex v. Delaval, 3 Burr. 1434, 1 W. BI. 410, 1763. 6 Reg. v. Lynn, 2 T. R. 733, 1 Leach, C. L. 497, 1788; Reg. v. Vann, 2 Den. C. C. 325, 8 Eng. L. & Eq. § 24] DEFINITION AND ANALYSIS OF CRIME. 33 vote at an election; ” to be guilty of individual offensive drunk- enness,° or notorious lewdness,® though on this point the better rule is that, to make the offense indictable, it must be such as to shock and insult, not an individual, but the community ; to indulge publicly in profane swearing,” or in loud and ob- scene language, so as to draw together a crowd in a thorough- fare,’ though the offense be not laid as a nuisance; * and, in fine, to commit any act which from its nature must scandalously affect the morals and health of the community. § 24. Offenses exclusively religious not indictable. It has sometimes been said that Christianity is part of the common law of the land,’ and from this it has been argued that the State Rep. 596, Temple & M. 632, 21 L. J. Mag. Cas. N. S. 39, 15 Jur. 1090, 5 Cox, C. C. 379, 1851; Reg. v. Sharpe, 7 Cox, C. C. 214, 40 Eng. L. & Eq. Rep. 581, Dears. & B. C. C, 160, 26 L. J. Mag. Cas. N. S. 47, 3 Jur. N. S. 192, 5 Week. Rep. 318, 1857; Com. v. Cooley, 10 Pick. 37, 1830. Or to sell the body of a dead con- vict for dissection. Rex v. Cundick, Dowl. & R. N. P. 18, 1822. See infra, § 1702. 7Com. v. Silsbee, 9 Mass. 417, 1812. 8 Smith v. State, 1 Humph. 396, 1839. 9State v. Rose, 32 Mo. 560, 1862; Brooks v. State, 2 Yerg. 482, 1831; State v. Moore, 1 Swan, 136, 1851. Infra, § 1727. 10Infra, § 1717. State v. Waller, 7 N.C. (3 Murph.) 229, 1819. 11 Infra, §§ 1718-1715. See State v Jones (9 Ired. L.) 38, 31 N. C. 1848; State v. Kirby, 5 N. C. (1 Murph.) 254, 1809; State v. Ellar, 12 N. C. (1 Dev. L) 267, 1827; State v. Pepper, 68 N. C. 259, 12 Am. Rep. 637, 1873; State v. Graham, 3 Sneed, 134, 1855. 12Infra, § 1701; State v. Appling, 25 Mo. 315, 69 Am. Dec. 469, 1857. 13 Barker v. Com. 19 Pa. 412, 1852; Bell v. State, 1 Swan, 42, 1851. 14 Respublica v. Teischer, 1 Dall. $85, 1 L. ed. 168, 1788; People v. Smith, 5 Cow. 258, 1825. Exhibition of an obscene picture Crim. L. Vol. I.—s. for example. Com. v. Sharpless, 2 Serg. & R. 91, 7 Am. Dec. 632, 1815. 1[Fed.] Vidal v. Philadelphia, 2. How. 127, 198, 11 L. ed. 205, 234, 1844. [Ark.] Shover v. State, 10 Ark. 259, 1850. [Del.] State v. Chan- dler, 2 Harr. (Del.) 553, 1837. [La.] State v. Bott, 31 La. Ann. 663, 33 Am. Rep. 224, 1879. [Nev.] State ex rel. Nevada Orphan Asylum v. Hal- lock, 16 Nev. 378, 1882. [N. Y.] Lin- denmuller v. People, 33 Barb. 548, 1861; People v. Ruggles, 8 Johns. 290, 5 Am. Dee. 335, 1811 [Pa.] Updegraph v. Com. 11 Serg. & R. 394, 1824; Mohney v. Cook, 26 Pa. 342, 67 Am. Dec. 419, 1855; Com. v. Sigman, 2 Clark (Pa.) 36, 18438; Granger v. Grubb, 7 Phila. 350, 1870. [S. C.] Charleston v. Benjamin, 2 Strobh. L. 508, 49 Am. Dec. 608, 1846. [Can.] Pringle v. Napanee, 14 Can. L. J. 219, 1878. Compare, Bloom v. Richards, 2 Ohio St. 387, 1853. Search note: See note 8 L. ed. 120; 4 Am. & Eng. Enc. Law, 2d ed. 580; 6 Am. & Eng. Enc. Law, 2d ed. 273, 27 Am. & Eng. Enc. Law, 2d ed. 388, 5 Cyc. 713, 8 Cyc. 371, 10 Century Dig. col. 853, § 4, 2 U. S. Dig. Co.-Ops.) 1497, 2 Words & Phrases, 1150; and exhaustive note in 49 Am. Dee. 616-623. United States a Christian nation. See Church of the Holy Trinity v. United States, 143 U. S. 457, 36 L. ed 226, 12 Sup. Ct. Rep. 511, 1891; State v. Hogreiver, 152 Ind. 652, 45 L.R.A. 504, 538 N. E. 921, 34 CRIMINAL LAW. [§ 24 is in some way bound to punish by indictment offenses against Christianity. Christianity, undoubtedly, has affected the com- mon law in the United States, in the following important par- ticulars: (1) In most jurisdictions we have adopted the prin- ciples of the canon law in relation to matrimony and to suc- cession. The rules which the English ecclesiastical courts im- posed in this connection we have in a large measure accepted as binding us; and in several states we have recognized as indict- able certain offenses, such as adultery and fornication, which in England can be prosecuted only in the ecclesiastical courts.? (2) We have also, adopting the ethical rules of Christianity, as distinguished from those of heathendom, made indictable breaches of domestic duty which were not criminally punishable by the old Roman law. (38) Witnesses, unless they have con- scientious scruples, or believe another form of oath more bind- ing, are sworn as a rule on the Christian Bible. 1899; Cortesy v. Territory, 6 N. M. 695, 19 L.R.A. 353, 30 Pac. 947, 1892. See infra, § 1926, footnote 2. That Christianity is a part of the common law of the land is to be received with appropriate qualifica- tion; this qualification is that its divine origin of truth is admitted, and therefore it is not maliciously and openly to be reviled and blas- phemed against to the annoyance of believers and the injury of the public. See Vidal v. Philadelphia, 2 How. 127, 198, 11 L. ed. 205, 234, 1844; State v. Bott, 31 La. Ann. 663, 33 Am. Rep. 224, 1879; Harvey v. Boies, 1 Penr. & W. 12, 1829; Specht v. Com. 8 Pa. 312, 322, 49 Am. Dec. 518, 1848. Christianity is not established by law. See Lindenmuller v. People, 33 Barb. 548, 1861; Melvin v. Eas- ley, 52 N.C. (7 Jones, L.) 356, 1860. Christianity, or any other system of religion, is not a part of the law of the land in Ohio. Bloom v. Rich- ards, 2 Ohio St. 387, 1853. The only foundation for the prop- osition that Christianity is a part of the law of the country is the fact that this is a Christian country, and that the constitution and laws are made by a Christian people. Board of Education v. Minor, 23 But beyond Ohio St. 211, 13 Am. Rep. 233, 1872. Legal Christianity is a solecism a contradiction of terms. Board of Education v. Minor, 23 Ohio St. 211, 13 Am. Rep. 233, 1872. —A doctrine or form of worship of any particular denomination, church, or sect is not intended; but Christianity, with liberty of con- science to all men. Updegraph v. Com. 11 Serg. & R. 394, 1824; Moh- ney v. Cook, 26 Pa. 342, 67 Am. Dec. 419, 1855; Sparhawk v. Union Pass. R. Co. 54 Pa. 401, 1867. —Christian Sabbath, sanctity of, recognized and enforced. See notes 14 L.R.A. 192; 22 L.R.A. 721; 31 L.R.A. 689; 32 L.R.A. 659; 32 L.R.A. 664; 41 L.R.A. 854; 78 Am. St. Rep. 264-266 —Municipal erdinance prohibiting sale of goods on Sunday was held to be valid in Charleston v. Benja- min, 2 Strobh. L. 508, 49 Am. Rep. 608, 1846. —Christmas Day, ordinance pro- hibiting the carrying on or conduct- ing of business on, is held to be in- valid in Watson v. Thomson, 116 Ga. 546, 59 L.R.A. 602, 94 Am. St. Rep. 137, 42 S. E. 747, 1902. 2Grisham v. State, 2 Yerg. 589, 1831. See infra, §§ 2062, 2086. § 25} DEFINITION AND ANALYSIS OF CRIME. 35 this we have not gone. We make blasphemy of Christianity in- dictable; but this is because such blasphemy is productive of a breach of the public peace, and not because it is an offense against God. We treat a disturbance of Christian worship as indictable, when such disturbance amounts to a private assault or to public disorder ; * but we give the same protection to non- Christian assemblies.* And in no state does the government in- terfere to prosecute offenses consisting of a denial of Christian dogma, or a rejection of Christian sanctions.> Nor in any state is Christianity in such sense part of the common law that the State can determine what are the dogmas of Christianity. That which is part of the common law can be changed by statute; but as the dogmas of Christianity are beyond the reach of stat- ute, we must hold that they are not part of the common law of the land.§ § 25. Offenses at common law are (1) treasons, (2) felonies, and (3) misdemeanors. Offenses at common law are divided into three heads: Treasons, felonies, and misde- meanors.’ In England, under 8 State v. Jasper, 15 N. C. (4 Dev. L.) 328, 1833; Holt v. State, 1 Baxt. 192, 1873 See infra, § 1697, and cases there cited. 4See infra, § 1872. 5[Conn.] Chapman v. Gillet, 2 Conn. 40, 1816. [Me.] Donahoe v. Richards, 38 Me. 379, 61 Am. Dec. 256, 1854. [N. Y.] Lindenmuller v. People, 38 Barb. 548, 1861; People v. Porter, 2 Park. Crim. Rep. 14, 1823. [N. C.] State v. Pepper, 68 N. C. 259, 12 Am. Rep. 637, 1873. [Ohio] Bloom v. Richards, 2 Ohio St. 387, 1853; Board of Education v. Minor, 23 Ohio St. 211, 18 Am. Rep. 233, 1872. [Pa.] Com. v. Du- puy, Brightly (Pa.) 44, 1831; Com. v. Jeandell, 2 Grant, Cas. 506, 1859. [Eng.] See Rex v. Carlile, 3 Barn. & Ald. 161, 1 Chitty, 451, 1819; Rex v. Waddington, 1 Barn. & C. 26, 1822; Story’s Misc. Writings, 451; 2 Life of Story, 431. Infra, § 2077. 6 Reg. v. Ramsay, 48 L. T. N.S 733, 1 Cab. & El. 126, 15 Cox, C. C. 231, 1883; cited infra, §§ 1926, 1949, 13 Alb. L. J. 366, 20 Alb L. J. 265, 285; Sedgw. Stat. & Const. the head of treason were em- Law, 14, and cases cited; Cooley, Const. Lim. 6th ed. 579. See also art. XI. of the treaty with Tripoli of January 3, 1797; U. S. Treaties, 1873 ed. p. 838; 8 U. S. Stat. at L. (Foreign Treaties, Peters’s ed.) 155; vi. Marten’s Rec. de Traités, 298. Sabbath-breaking not an offense. —In State v. Brooksbank, 28 N. C. (6 Ired. L.) 73, 1845, it was held that Sabbath-breaking is not an offense at common law. But this can be true only as to such “Sabbath-break- ing” as does not amount to a nui- sance. Compare, State v. Parker, 91 N. C. 650, 1884. 1 Misdemeanor —Indictment and removal of public officer for, commit- ted in office. State v. Borowsky, 11 Nev. 119, 1876; Bell v. First Ju- dicial Dist. Ct. 28 Nev. 299, 1 L.R.A. (N.S.) 848, 113 Am. St. Rep 854, 81 Pac. 878, 6 A. & E. Ann. Cas. 982, 1905. —“Public officer” in statute re- garding indictment and removal for misdemeanors in office, includes a county superintendent of schools. 36 [§ 25 CRIMINAL LAW. braced, first, under the name of high treason, the compassing of the King’s death, the comforting of the King’s enemies, the counterfeiting of the privy seal, the forging of the King’s coin, and the slaying of the chancellor or either of the King’s jus- tices; and secondly, under the name of petit treason, such of- fenses as were imputable in private life to the same principle of treachery and disloyalty as led, in the affairs of State, to the compassing the Sovereign’s death; comprising the slaying, by a wife, of her lord and husband, and by an ecclesiastic of his ordinary. In this country, however, petit treason as a distinct class of offenses is no longer recognized, the crimes composing it having sunk into a place among homicides; and high treason, under the Constitutions both of the Federal Union and of the several states, is limited to the levying war against the supreme authority, or adhering to its enemies, giving them aid and comfort.* § 26. Felonies include crimes subject to forfeiture. Felonies, in England, as distinguished from misdemeanors, comprised originally every species of crime which occasioned the forfeijare of lands and goods; but though this distinction, ee ae the supposed heinousness of the crime, is still nominally recognized, its continuance, while conducing to much technical difficulty, is productive of no good, and its abo- lition is only a question of time.’ See State v. Borowsky, 11 Nev. 119, 1876; also note in 98 Am. Dec. 168. —Public administrator may be guilty of “misdemeanor in office” by embezzling money received by him after his term of office has expired. See note in 87 Am. St. Rep. 45., 2Infra, §§ 2128 et seq. 1See Amos, Jur. (London, 1872), 302; Stephen, Crim. Law, 56, 57, 105-110; Lyford v. Farrar, 31 N. H. 314, 1855; Shay v. People, 22 N. Y. 317, 1860. “Felony” — Meaning of.—‘‘There is no lawyer,” says Mr. J. S. Mill, “who would undertake to tell what a felony is, otherwise than by enumerating the various kinds of of- fenses which are so called.” —In most, if not all, of the United States, the word “felony” has, either by statute or judicial construction, acquired the meaning of a crime punishable by death or imprison- ment in a state prison. [Fed.] Ex parte Wilson, 114 U. 8. 417, 29 L. ed. 89, 5 Sup. Ct. Rep. 935, 938, 4 Am. Crim. Rep. 288, 1885; Bannon v. United States, 156 U. S. 464, 39 L. ed. 494, 15 Sup. Ct. Rep. 467, 469, 9 Am. Crim. Rep. 338, 1895. [Ala.] Turner v. State, 40 Ala. 21, 1866. [Ark.] Mary v. State, 24 Ark. 44, 81 Am. Dec. 60, 1862; Butler v. State, 34 Ark. 480, 1879; State v. Waller, 48 Ark. 381, 383, 5 Am. Crim, Rep. 631, 1884; Keeton v. State, 70 Ark. 163, 66 S. W. 645, 1902. [Cal.] People v. War, 20 Cal. 117, 1862; People v. Cole, 70 Cal. 59, 11 Pac. 481, 1886. [Colo.] Re Lowrie, 8 Colo. 499, 54 Am. Rep. 558, 9 Pac. 489, 490, 1885; Re Pratt, 19 Colo. 138, 34 Pac. 680, 1893; Will- § 26] DEFINITION AND ANALYSIS OF CRIME. 37 At common law, in addition to the crimes more strictly com- ing under the head of treason, the chief, if not the only, felonies, iams v. People, 26 Colo. 272, 57 Pac. 701, 1899. [Conn.] State v. Setter, 57 Conn. 461, 14 Am. St. Rep. 121, 18 Atl. 782, 1889. [Dak.] Territory v. Godfrey, 6 Dak. 46, 50 N. W. 481, 1888. [Fla.] Holton v. State, 2 Fla. 476, 1849; Walden v. State, 50 Fla. 151, 39 So. 151, 1905. [Ga.] Hinkle v. State, 94 Ga. 595, 21 S. E. 595, 1894. [Idaho] Territory v. Guthrie, 2 Idaho, 432, 17 Pac. 39, 1888. [Ill] Lamkin v. People, 94 Ill. 501, 1880; Baits v. People, 123 Ill. 428, 16 N. E. 483, 1888; Kelly v. People, 132 Ill. 363, 24 N. E. 56, 1890; Brewster v. People, 183 Ill. 143, 55 N. E. 640, 14 Am. Crim. Rep. 661, 1899; Peo- ple ex rel. Johnson v. George, 186 Ill. 122, 57 N. E. 804, 1900; Beattie v. People, 33 Ill. App. 651, 1889. [Ind.] Weinzorpflin v. State, 7 Blackf. 186, 1844; State v. Smith, 8 Blackf. 489, 1847; Short v. State, 63 Ind. 376, 1878; Stevens v. Anderson, 145 Ind. 304, 44 N. E. 460, 1896; Skelton v. State, 149 Ind. 641, 49 N. E. 901, 1898; Sutherlin v. Sutherlin, 27 Ind. App. 301, 61 N. E. 206, 1901. [Iowa] State v. Corliss, 85 Iowa, 18, 51 N. W. 1154, 1892; State v. Grant, 86 Towa, 216, 220, 58 N. W. 120, 1892. [Kan.] Re Stevens, 52 Kan. 56, 34 Pac. 459, 460, 1893; State v. Warner, 60 Kan. 94, 55 Pac. 342, 1898; State v. Allphin, 2 Kan. App. 28, 42 Pac. 55, 1895. [La.] State v. Charlot, 8 Rob. (La.) 529, 1844. [Me.] Smith v. State, 38 Me. 48, 54 Am. Dec. 607, 1851; State v. McCormick, 84 Me. 566, 24 Atl. 938, 1892. [Mich.] People v. Brigham, 2 Mich. 550, 1853; Shannon v. People, 5 Mich. 71, 1858; Drennan v. People, 10 Mich. 169, 1862. [Mo.] State v. Deffen- bacher, 51 Mo. 26, 1872; State v. Mc- Carron, 51 Mo. 27, 1872; State v. Reeves, 97 Mo. 668, 10 Am. St. Rep. 349, 10 S. W. 841, 843, 8 Am. Crim. Rep. 698, 1888; State v. Lehr, 16 Mo. App. 491, 1885; State v. Melton, 53 Mo. App. 646, 1893; State v. Nichol- son, 56 Mo. App. 412, 1894. [Mont.] Territory v. Duncan, 5 Mont. 478, 6 Pac. 353, 1885. [Nev.] State v. Mc- Cormick, 14 Nev. 347, 1879. [N. H.] State v. Felch, 58 N. H. 1, 1876. [N. M.] United States v. Vigil, 7 N. M. 296, 34 Pac. 530, 1893. [N. Y.] Shay v. People, 22 N. Y. 317, 1860; Fassett v. Smith, 23 N. Y. 252, 1861; People v. Park, 41 N. Y. 21, 1869; People v. Johnson, 110 N. Y. 134, 17 N. E. 684, 1888; People v. Hughes, 1387 N. Y. 29, 32 N. E. 1105, 1893; People v. Borges, 6 Abb. Pr. 132, 1858; People v. Shay, 10 Abb. Pr. 413, 1860; People v. Reilley, 49 App. Div. 218, 223, 68 N. Y. Supp. 18, 1900; Mairs v. Baltimore & O. R. Co. 73 App. Div. 265, 76 N. Y. Supp. 838, 1902, affirmed in 175 N. Y. 409, 67 N. E. 901, 1903; People v. Park, 1 Cowen, Crim. Rep. 227, 1869; Park v. People, 1 Lans. 263, 1869; People v. Lyon, 1 N. Y. Crim. Rep. 400, 1883; Keyser v. Harbeck, 12 N. Y. Leg. Obs. 201, 1854; People ex rel. Shortell v. Markell, 20 Misc. 149, 45 N. Y. Supp. 904, 1897; Shay v. People, 4 Park. Crim. Rep. 353, 1860; Andrews v. Dieterich, 14 Wend. 31, 1835. [N. D.] State v. Hogan, 8 N. D. 301, 45 L.R.A. 166, 73 Am. St. Rep. 759, 78 N. W. 1051, 1899. [Ohio.] Matthews v. State, 4 Ohio St. 539, 1855; Griffin v. State, 34 Ohio St. 299, 1878; Mitchell v. State, 42 Ohio St. 383, 1884. [Okla.] Queenan v. Territory, 11 Okla. 261, 61 L.R.A. 324, 71 Pac. 218, 223, 1901. [R. L] State v. Murphy, 17 R. I. 698, 701, 16 LRA. 550, 24 Atl. 473-475, 1892. [S. D.] Re Kirby, 10 S. D. 322, 39 LRA. 856, 73 N. W. 92, 94, 1897. [Tenn.] Rafferty v. State, 91 Tenn. 655, 16 S. W. 728, 1891. [Tex.] Ward v. White, 86 Tex. 170, 23 S. W. 981, 1893; Welsh v. State, 3 Tex. App. 114, 1877; Campbell v. State, 22: Tex. App. 262, 2 S. W. 825, 1885; Pitner v. State, 23 Tex. App. 366, 5 S. W. 210, 1887. [Utah.] United States v. Jones, 5 Utah, 552, 18 Pac. 238, 1888. [Vt.] Corbett v. Sulli- van, 54 Vt. 619, 1882. [Va.] Benton v. Com. 89 Va. 570, 16 S. E. 725, 1893. [W. Va.] State v. Harr, 38 W. Va. 58, 17 S. E. 794, 1893. 38 CRIMINAL LAW. [§ 26 were murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny. By statutes, however, running from the earliest period, new felonies were, from time to time, created; till finally, not only almost every heinous offense against person or property was included within the class, but it was held that whenever judg- ment of life or member was affixed by statute the offense to which it was attached became felonious by implication, though the word “felony” was not used in the statute. In this country, until recently, the common-law classification obtained ; the principal felonies being received as they originally existed, and their number increased as the exigencies of society prompted; * though in the Federal courts noncapital cffenses have been held to be felonies only when made so by statute, expressly or by implication.* In several of the states all offenses subject to death or imprisonment are made felonies; all others are misdemeanors.* In some states the distinction is abolished absolutely. In most of the others it exists only so far as to make it requisite in indictments for felonies, to use the term “feloniously ;” © and to give certain privileges as to challenges, as to joinder of counts, and as to seclusion of jury. But it is impossible not to be amazed at a system which made perjury a [Wis.] State v. Hammond, 35 Wis. 815, 1874. Search note—See 3 Words and Phrases, 2736-2744; 14 Century Dig. col. 644, §§ 29-31; 6 Decen. Dig. p. 180, § 27; 1 Obiter Dig. 748; 12 Am. & Eng. Enc. Law, 2d ed. p. 1030. Grade of offense—What deter- mines.—It is not the actual sentence, but the possible one, that determines the grade of the offense. (People v. Hughes, 137 N. Y. 29, 382 N. E. 1105, 1893); and, accordingly, the infliction of a permissible less punishment will not reduce the of- fense to a misdemeanor (State v. Melton, 117 Mo. 618, 23 S. W. 889, 1893). No crime is felony unless it was such at common law, or has been declared such by statute. State v. Murphy, 17 R. I. 698, 65 L.R.A. 550, 24 Atl. 473, 1892. See United States v. Vigil, 7 N. M. 296, 34 Pac. 530, 1893. 2In Louisiana it has been held that a prior ruling of the late court of errors and appeals, that the term “felony” was not known to the laws of Louisiana, was an _ unadvised dictum, and not law. State v. Roh- frischt, 12 La. Ann. 382, 1857. 3 United States v. Coppersmith, 2 Flipp. 546, 4 Fed. 198, 1 Crim. L. Mag. 741, 1880. 4[Ind.] Weinzorpflin v. State, 7 Blackf. 186, 1844. See [Me.] State v. Smith, 32 Me. 369, 54 Am. Dec. 578, 1851. [Mo.] Ingram v. State, 7 Mo. 293, 1842. [N. Y.] People v. Park, 41 N. Y. 21, 1869. [Va.] Ran- dall v. Com. 24 Gratt. 644, 1878. [Wis.] Nichols v. State, 35 Wis. 308, 1874. 5 See Wharton, Crim. Pl. & Pr. § 260; and see Bruguier v. United Sag 1 Dak. 5, 46 N. W. 502, 7. § 27] DEFINITION AND ANALYSIS OF CRIME. 39 . misdemeanor, and larceny a felony; which, while it made it a felony to steal 5 shillings, made it only a misdemeanor to con- spire to rob a bank. § 27. “Infamy” is that which impresses a moral taint. The question as to what are “infamous crimes”? is now of in- 1 Search note: See notes 17 L.R.A. 764, 16 Am. & Eng. Enc. Law, 2d ed. pp. 246 et seq.; 12 Cyc. 135; 22 Cyc. 501; 14 Century Dig. col. 644, §§ 29-51; 6 Decen. Dig. p. 180, § 27; 3 U. S. Dig. (Co-ops.) 2420, [ff 7-12; 4 Words & Phrases, 3573, 3578. “Infamous crimes,” meaning of, as used in Constitutions and _stat- utes, has been well settled by judi- eations in this country. Among other cases, see [Fed.] Mackin v. United States, 117 U. S. 348, 29 L. ed. 909, 6 Sup. Ct. Rep. 777, 1886; United States v. Maxwell, 3 Dill. 275, Fed. Cas. No. 15750, 1875; United States v. Yates, 6 Fed. 861, 1881; United States v. Wynn, 3 McCrary, 266, 9 Fed. 886, 1882; United States v. Petit, 11 Fed. 58, 1882; United States v. Field, 16 Fed. 778, 1883; United States v. Bare- field, 23 Fed. 136, 1885; United States v. Block, 4 Sawy. 211, Fed. Cas. No. 14609, 1877. [Fla.] King v. State, 17 Fla. 183, 1879. [Ill.] Holmes v. Holmes, 64 Ill. 294, 1872. {Ind.] Polson v. Polson, 140 Ind. 310, 39 N. E. 498, 1894; Sutherlin v. Sutherlin, 27 Ind. App. 301, 61 N. E. 206, 1901. [Ky.] Sodusky v. McGee, 5 J. J. Marsh. 621, 1831. {Me.] Butler v. Wentworth, 84 Me. 25, 17 L.R.A. 764, 24 Atl. 456, 1891. {Md.] State v. Bixler, 62 Md. 354, 1884. [Mass.] O’Connell v. Dow, 182 Mass. 541, 66 N. E. 788, 1903. [N. Y¥.] People v. Parr, 4 N. Y. Crim. Rep. 545, 1886. [Ohio] Webb v. State, 29 Ohio St. 351, 1876; Wick v. Baldwin, 51 Ohio St. 51, 36 N. E, 671, 1894. [Pa.] Com. v. Shaver, 3 Watts & S. 343, 1842; Davis v. Carey, 141 Pa. 314, 21 Atl. 683, 1889; Hess v. Hess, 22 Pa. Co. Ct. 135, 1891. See infra, § 704. The words “infamous crime” have a fixed and settled meaning. In a legal sense they are descriptive of an offense that subjects « person to infamous punishment and prevents his being witness. United States v. Maxwell, 3 Dill. 275, Fed. Cas. No. 15750, 1875; Holmes vy. Holmes, 64 Til. 294, 1872; State v. Bixler, 62 Md. 354, 1884. “Infamous, in a popular sense, is said to be synonyomus with de- testable, odious, scandalous, dis- graceful, base, vile, shameful, igno- minious.” Polson v. Polson, 140 Ind. 310, 39 N. E. 498, 1894; Com. v. Shaver, 3 Watts & S. 343, 1842. Whether a crime is infamous is not determined by its characteriza- tion in the statute, but by the fact whether or not, under the statute defining and denouncing it, an infamous punishment may be in- flicted. Jamison v. Wimbish, 130 Fed. 351, 1904, reversed in 199 U. 8S. 599, 50 L. ed. 327, 26 Sup. Ct. Rep. 747, 1905; People v. Sacramento Butchers’ Protective Asso. 12 Cal. App. 471, 107 Pac. 712, 1910. An offense which is a felony, be cause it may be punished by im- prisonment in the penitentiary, is not reduced to a misdemeanor be- cause a less punishment may be in- flicted. See [Ark.] State v. Waller, 43 Ark. 381, 5 Am. Crim. Rep. 631, 1884. [D. C.] United States v. Evans, 28 App. D. C. 264, 1907. [Me.] State v. Smith, 32 Me. 369, 54 Am. Dec. 578, 1851. [Mo.] John- ston v. State, 7 Mo. 183, 1841; In- gram v. State, 7 Mo. 293, 1842; State v. Green, 66 Mo. 631, 1877; State v. Melton, 117 Mo. 618, 23 S. W. 889, 1893, affirming 53 Mo. App. 646, 1893. See State ex rel. Shanks v. Johnson, 138 Mo. App. 306, 121 S. W. 780, 1909; State v. Ostman, 147 Mo. App. 422, 126 8S. W. 961, 1910. [N. Y¥.] People v. Van Steen- burgh, 1 Park. Crim. Rep. 39, 1845; People v. Borges, 6 Abb. Pr. 132, 1858. [N. C.] State v. Dewer, 65 N. ©. 572, 1871. [Tex.] Huff v. Me- 40 CRIMINAL LAW. [§ 27 terest principally because of the clause in the Federal Constitu- tion which provides that all crimes not infamous may be prose- Michael, — Tex. Civ. App. —, 127 S. W. 574, 1910. “Punishment by death or im- prisonment.”—All offenses punish- able by death or imprisonment in the state prison are infamous. Among other cases, see [Ala.] Cook v. State, 60 Ala. 39, 31 Am. Rep. 31, 3 Am. Crim. Rep. 304, 1897; Clifton v. State, 73 Ala. 473, 1833. (Cal.] People v. War, 20 Cal. 117, 1862; People v. Smith, 143 Cal. 597,. 77, Pac. 449, 1904. [Fla.] Walden v. State, 50 Fla. 151, 39 So. 151, 1905. [Ga] A. v. B. R. M. Charlt. (Ga.) 228, 1822. [Ind.] State v. Smith, 8 Blackf. 489, 1847. [Kan.] Re Stevens, 52 Kan. 56, 34 Pac. 459, 1893. [Ky.] Buford v. Com, 14 B. Mon. 24, 1853; Tharp v. Com. 3 Met, (Ky.) 411, 1861. [Mo.] Nathan v. State, 8 Mo. 631, 1844; State v. Lehr, 16 Mo. App. 491, 1885. LN. Y.] People v. Park, 41 N. Y. 21, 1869; Mairs v. Baltimore & O. R. Co, 73 App. Div. 265, 76 N. Y. Supp. 838, 1902, affirmed in 175 N. Y. 409, 67 N. E. 901, 1903. [N. C.] State v. Dewer, 65 N. C. 572, 1871; State v. Mallett, 125 N. C. 718, 34 S. E. 651, 1899, affirmed in 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730, 1901. [Tex.] Welsh v. State, 3 Tex. App. 114, 1877. [Vt.] Corbett v. Sullivan, 54 Vt. 619, 1882. [Va.] Benton v. Com. 89 Va. 570, 16 S. E. 725, 1893. [W. Va.] State v. Harr, 38 W. Va. 58, 17 S. E. 794, 1893. As to punishment by death and imprisonment for life in penitentia- ty, see [Fed.] Mackin v. United States, 117 U. S. 348, 29 L. ed. 909, 6 Sup. Ct. Rep. 777, 1886; Parkin- son v. United States, 121 U.S. 281, 30 L. ed. 959, 7 Sup. Ct. Rep. 896, 1887; Re Claasen, 140 U. S. 200, 35 L. ed. 409, 11 Sup. Ct. Rep. 735, 1891; United States v. Johannesen, 35 Fed. 411, 1888; United States v. Smith, 40 Fed. 755, 1889; United States v. Sutton, 2 C. C. A. 115, 47 Fed. 129, 1891. [Pa.] Hess v. Hess, 22 Pa. Co. Ct. 185, 1898. [R. 1] State v. Nolan, 15 R. I. 529, 10 Atl. 481, 1887. As to punishment for term of years, see [Fed.] Ex parte Wilson, 114 U. S. 417, 29 L. ed. 89, 5 Sup. Ct. Rep. 935, 4 Am. Crim. Rep. 283, 1885; Mackin v. United States, 117 U. S. 348, 29 L. ed. 909, 6 Sup. Ct. Rep. 777, 1885; Parkinson v. United States, 121 U. S. 281, 30 L. ed. 959, 7 Sup. Ct. Rep. 896, 1887; Ex parte Bain, 121 U. 8. 1, 30 L. ed. 849, 7 Sup. Ct. Rep. 781, 6 Am. Crim. Rep. 122, 1887; United States v. De Walt, 128 U. S. 393, 32 L. ed. 485, 9 Sup. Ct. Rep. 111, 1888; Re Medley, 134 U. S. 160, 33 L. ed. 835, 10 Sup. Ct. Rep. 384, 1890; Re Mills, 185 U. 8S. 263, 34 L. ed. 107, 10 Sup. Ct. Rep. 762, 1890; Re Claasen, 140 U. 8. 200, 35 L. ed. 409, 11 Sup. Ct. Rep. 735, 1891; United States v. Cobb, 43 Fed. 570, 1890. [Ariz.] Territory v. Blomberg, 2 Ariz. 204, 11 Pac. 671, 1864. [Me.] Butler v. Wentworth, 84 Me. 25, 17 L.R.A. 764, 24 Atl. 456, 1891. [Mass.] Jones v. Rob- bins, 8 Gray, 329, 1857. Offense punishable by imprison- ment in the parish prison or jail, or by hard labor in the penitentiary, is a “minor offense.” State v. Wall, 126 La. 400, 52 So. 556, 1910. As to kind of punishment inflict-. ed determining the grade of an of- fense, and whether it is an infamous crime, see [Fed.] Ex parte Wilson, 114 U. 8. 417, 29 L. ed. 89, 5 Sup. Ct. Rep. 935, 4 Am. Crim. Rep. 283, 1885; Re Mills, 185 U. S. 263, 34 L. ed. 107, 10 Sup. Ct. Rep. 762, 1890; Re Claasen, 140 U. S. 200, 35 L. ed.. 409, 11 Sup. Ct. Rep. 735, 1891; United States v. Johannesen, 35 Fed. 411, 1888; Ex parte McClusky, 40 Fed. 71, 1889; Stokes v. United States, 9 C. C. A. 152, 28 U.S. App. 289, 60 Fed. 597, 9 Am. Crim. Rep. 436, 1894; United States v. Maxwell Land Grant Co. 26 Fed. 121, 1886. [Cal.] People v. Cornell, 16 Cal. 187, 1860. [Ind.] Baum v. State, 157 Ind, 282, 55 L.R.A. 250, 61 N. E. 672, 1901. [Kan.] State v. Clark, 60 Kan. 450, 56 Pac. 767, 1899. [N. Y.] People v. Lyon, 99 N. Y. 210, 1 N. E. 763, 5 Am. Crim. Rep. § 27] DEFINITION AND ANALYSIS OF CRIME. 4t cuted by information. At common law, “infamy”? was held to attach to all crimes, a conviction of which impressed such a moral taint on the perpetrator as was supposed to require his incapacitation as a witness * and the suppression of his politi- 10, 1885. [N. C.] Gudger v. Pen- land, 108 N. C. 593, 23 Am. St. Rep. 73, 18 8. E. 168, 1891. A crime is not a felony simply be- cause it is punishable by imprison- ment in the penitentiary. State v. Hill, 91 N. C. 561, 1884. Second offenses——Where a statute provides that on conviction for a second offense, the punishment shall be by imprisonment in the state’s prison, this renders the second of- fense a felony or infamous crime, al- though it is of a character which if it was a first offense, it would be simply a misdemeanor. See People v. Smith, 143 Cal. 597, 77 Pac. 449, 1904; State v. Lehr, 16 Mo. App. 491, 1885. Contra: Ex parte Brown, 161 Fed. 710, 1907; United States v. Evans, 28 App. D. C. 264, 1906; People ex rel. Cosgriff v. Craig, 60 Misc. 529, 112 N. Y. Supp. 781, 1908, 129 App. Div. 851, 114 N. Y. Supp. 833, 1909, 195 N. Y. 190, 88 N. E. 38, 1909. As to being determined by the nature of offense, see [Ala.] Syl- vester v. State, 71 Ala. 17, 1881; Smith v. State, 129 Ala. 89, 87 Am. St. Rep. 47, 29 So. 699, 1900. [Dak.] People v. Sponsler, 1 Dak. 289, 46 N. W. 459, 1876. [N. Y.] People v. Toynbee, 20 Barb. 168, 1855; People v. Whipple, 9 Cow. 707, 1827; People v. Parr, 42 Hun, 313, 1886. Whether a crime is infamous is determi..ed by the fact whether or not the statute authorizes the court to inflict an infamous punishment, not whether the punishment ulti- mately awarded is an_ infamous one. United States v. Evans, 28 App. D. C. 264, 1906. : 2The term “infamous crimes” is a technical one, importing more than degradation or reproach. Sodusky v. McGee, 5 J. J. Marsh. 621, 1831. Grade of offense determined by nature of punishment that may be inflicted. People v. Smith, 143 Cal. 597, 77 Pac. 449, 1904; People v. Lyon, 99 N. Y. 210, 1 N. E. 763, 5. Am, Crim. Rep. 10, 1885. Kinds of infamy.—In his “Princi- ples of Penal Law,” William Eden,. subsequently Lord Auckland, says: “There are two kinds of infamy, the- one founded on the opinion of the. people respecting the mode of punishment, the other in the con- struction of law respecting the future credibility of delinquent.” Eden, Principles of the Penal Law,,. chap. 7, § 5. 8 [Fed.] Ex parte Wilson, 114 U.. 8. 417, 29 L. ed. 89, 5 Sup. Ct. Rep. 935, 4 Am. Crim. Rep. 283, 1884. [Ind. Terr.] Williams v. United States, 4 Ind. Terr. 204, 69 S. W. 849, 1902. [Kan.] State v. Clark,. 60 Kan. 450, 56 Pac. 767, 1899. [Md.] State v. Bixler, 62 Md. 354,. 1884. [Pa.] Com. v. Shaver, 3 Watte & S. 338, 1842; McCafferty v.. Guyer, 59 Pa. 109, 1868. See also authorities cited in first footnote to this section. Conviction of larceny renders a. person infamous in this sense. Williams v. United States, 4 Ind. Terr. 204, 69 S. W. 849, 1902. Infamy disqualifying convict to be- a witness depends upon the char- acter of the crime, not upon the- nature of the punishment. Ex parte- Wilson, 114 U. 8. 417, 29 L. ed. 89, 5 Sup. Ct. Rep. 395, 4 Am. Crim. Rep.. 283, 1884. —A felony is within the rule ren- dering a convict incompetent to tes- tify. O’Connell v. Dow, 182 Mass.. 541, 66 N. E. 788, 1903. —Infamous punishment provided. does not make an offense infamous. Bannon v. United States, 156 U. S. 468, 39 L. ed. 496, 15 Sup. Ct. Rep. 469, 9 Am. Crim. Rep. 338, 1884. Definition of infamy has been given as “a state of incompetency implying such a dereliction of moral principle as carries with it a con- clusion of a total disregard of the obligations of an oath.” See State: 42 CRIMINAL LAW. [§ 27 cal rights.‘ Infamy, in this sense, includes treason, felony, and the crimen falsi; and a conspiracy to commit an infamous of- fense partakes of the character of the offense at which it is aimed. The meaning of the term “infamous offenses” under the Federal Constitution is discussed in another work.’ § 28. Misdemeanors comprise offenses lower than felonies. Misdemeanors comprise at common law all offenses lower than felonies, which may be the subject of indictment. They are divided into two classes: first, such as are mala in se, or penal at common law; and secondly, such as are mala pro- hibita, or penal by statute. § 29. Police offenses to be distinguished from criminal. In all jurisprudences a distinction more or less marked has been made between police wrongs and criminal wrongs.’ The distinction is made to rest sometimes on the tri- bunal having jurisdiction of the wrong; wrongs peculiarly cog- nizable by police courts being called police wrongs, those pe- euliarly cognizable by criminal courts of record being called criminal wrongs. This line, however, is unsatisfactory, many prosecutions which are eminently of a police character involv- ing large interests, and hence made subjects of prosecution in our highest courts. For similar reasons we must reject the dis- tinction that little wrongs are police wrongs, and great wrongs are criminal wrongs, since there are many criminal wrongs (e. g., small larcenies) which are little, and many police wrongs (e. g., such as interfere with liberty of trade) which are great. Nor can we accept as entirely adequate the tests sometimes given, that police wrongs consist of threatened, and criminal wrongs of consummated, injuries; or that police wrongs consist exclu- sively in disturbances of order, criminal wrongs in violations of justice. We may more properly hold, enlarging the last dis- tinction, that by criminal wrongs the existence of the State is assailed; by police wrongs, only the administration of its eco- nomical structure: the first attack the fundamental institutes v. Clark, 60 Kan. 450, 56 Pac. 767, 1As to the distinction in such 1899; People v. Parr, 4 N. Y. Crim. cases, see Oshkosh v. Schwartz, 55 Rep. 545, 1886. Wis. 483, 18 N. W. 552. 1882. 4See Wharton, Crim. Ev. § 363. Police procedure is no bar to a 5Wharton, Crim. Pl. & Pr. §§ 85 criminal prosecution for the same et seq. See United States v. Field, offense. See Wharton, Crim. Pl. & 16 Fed. 778, 1883, with note. Pr. § 440. § 29] DEFINITION AND ANALYSIS OF CRIME. 43 of society, the latter only its modes of operation: the first con- cern principle, the second concern procedure. It is true that the two classes melt undefinably into each other, as is the case with civil and criminal wrongs, and that an offense which in one as- pect is a police wrong is a criminal wrong in another aspect.* But that there is a distinction in ethics there can be no ques- tion, the one case involving, the other not involving, a moral taint. Nor can we refuse to admit a distinction in law. Ac- cessories in criminal offenses, for instance, are involved in the guilt of principals; not so accessories in police offenses.® It is not indictable, for instance, to buy spirituous liquors il- legally sold; * nor is it indictable to contract to sell such liquor in the gross to a person who is to sell it illegally at retail; * nor is it indictable to attempt such offenses. Police offenses, we may further notice, have, in common with offenses of omission, this characteristic.—that they are usually breaches of affirmative, and not of negative, commands. The police law says: ‘You must do a particular thing.” The of- fender, either designedly or negligently, omits to do this thing. A criminal offense, on the other hand, is a breach of negative command: “Thou shalt not steal.” Police offenses, also, as we have just seen, are usually not against the material and moral element in the law, but against its formal structure. It be- comes, therefore, in most police prosecutions, a matter imma- terial whether evil consequences flow from the defendant’s dis- obedience, and whether, if they do, they are imputable to the defendant. It may be made a police offense, for instance, for a man to permit ice to accumulate before his front door on a city street. If so, it is of no consequence whether an injury oc- curred thereby to individuals traversing the street, or whether the offender was cognizant ct the violation of law. The same remarks are applied by a recent leading German jurist” to a series of acts made penal by the German Code, such as the pos- session of unstamped and unverified scales and measures; and the storing of explosive compounds in places forbidden by law. 2Wharton, Crim. Pl. & Pr. §§ 5 Pulse v. State, 5 Humph. 108, 306, 312, 440. 1844, ; 8 Infra, § 1888; Com. v. Willard, 6Infra, § 216. Hill v. State, 53 22 Pick. 476, 1839. Ga. 125, 1874. As to attempts, infra, § 216. 7 Merkel, Kriminalistische Abhand- 4Infra, §§ 216, 1838. lungen, i. p. 97. 44 CRIMINAL LAW. [§ 29 Our own prosecutions of persons concerned in selling intoxi- cating liquors may be placed in the same category. We do not inquire whether any person was injured by the sale or exposure of the liquor. We do not inquire whether the person charged knew that the liquor was intoxicating. These questions are ir- relevant. Certain acts are dangerous to the community, and these acts are unconditionally and absolutely forbidden, as the best way of preventing their deleterious results. Hence, in such cases we have simply to determine whether the acts in question conflict with the letter of the law. We must, at the same time, remember that there are other offenses beside those exclusively of a police character which are punishable, irrespec- tive of the criminal intention of the offender. It is within the power of the legislature to say of the particular acts that they are to be prohibited irrespective of the intention of the person by whom they are committed.® 8 [Ark.] Scales v. State, 47 Ark. 476, 58 Am. Rep. 768, 1 S. W. 769, 1886. [Mass.] Com. v. Starr, 144 Mass. 359, 11 N. E. 583, 1887. [Neb.] Liberman v. State, 26 Neb. 464, 18 Am. St. Rep. 791, 42 N. W. 419, 1889. [Pa.] Specht v. Com, 8 Pa. 312, 49 Am. Dec. 518, 1848. [Tenn.] Parker v. State, 16 Lea, 476,18. W. 202, 1886. See infra, § 1697, and also §§ 108- 114 Sunday.—Establishment of com- pulsory day of rest in each week is a legitimate exercise of the police power of the state. State ex rel. Walker v. Section “A” Crim. Dist. Judge, 39 La. Ann. 132, 1 So. 437, 1887, 58 Am. Rep. 772, note; Scales v. State, 47 Ark. 476, 58 Am. Rep. 768, 1 S. W. 769, 1886; Ex parte Andrews, 18 Cal. 678, 1861; Ex parte Bird, 19 Cal. 130, 1861; Ex parte Koser, 60 Cal. 177, 1882; Shreveport v. Levy, 26 La. Ann, 671, 21 Am. Rep. 553, 1874, Conscientious scruples in keeping another day of the week for re- ligious observance is no defense. Jews, Seventh Day Adventists, and other religious sects, who conscien- tiously observe the seventh day of the week as a religious sacrament or otherwise, are as much bound to comply with such a law and refrain from business or worldly employ- ment on Sunday as is any other person. See [Fed.] Swann v. Swann, 21 Fed. 299, 1884. [Ala.] Frolick- stein v. Mobile, 40 Ala. 725, 1867. [Ark.] Scales v. State, 47 Ark. 476, 58 Am. Rep. 768, 1 S. W. 769, 1886. [Ind.] Johns v. State, 78 Ind. 332, 41 Am. Rep. 577, 1881. [La.] State ex rel Walker v. Section “A” Crim. Dist. Judge, 39 La. Ann. 182, 1 So. 437, 1887, 58 Am. Rep. 772, note; [Mass.] Com. v. Hyneman, 101 Mass. 80, 1869; Com. v. Has, 122 Mass. 40, 1877. [Neb.] Liberman v. State, 26 Neb. 464, 18 Am. St. Rep. 791, 42 N. W. 419, 1889. [Pa.] Com. v. Wolf, 3 Serg. & R. 48, 1817; Specht v. Com. 8 Pa. 312, 49 Am. Dec. 518, 1848; Society for Visitation v. Com. 52 Pa. 125, 91 Am. Dec. 139, 1866. [S. C.] Charleston v. Benjamin, 2 Strobh. L. 508, 49 Am. Dec. 608, 1846. [Tenn.] Parker v. State, 84 Tenn. 476, 1 S. W. 202, 1886. [Tex.] Gabel v. Houston, 29 Tex. 335, 1867. [W. Va.] State v. Balti- more & O. R. Co. 15 W. Va. 362, 36 Am. Rep. 803, 1879. 9See infra, §§ 108-118. § 31] DEFINITION AND ANALYSIS OF CRIME. 45 § 30. An act when prohibited by statute is indictable, though indictment is not given by statute. Misdemeanors which are mala prohibita, and which become penal by statute, may consist not only of acts made specifically indictable, but of acts enjoined or forbidden by statute, though by such statute such omission or commission is not made the subject of indict- ment. If a statute prohibit a matter of public grievance, or command a matter of public convenience, all acts or omissions contrary to the prohibition or command of the statute, being misdemeanors at common law, are punishable by indictment, if the statute specify no other mode of proceeding.’ Thus, wherever a duty is imposed on a public officer, the neglect to perform it is a public offense, and as such is indictable.? And the imposition by statute of a penalty (unless where it is im- posed, as in tax and similar statutes, as a mere alternative) in itself implies a prohibition.* It is otherwise, however, when a civil action is made by statute the specific remedy.* § 31. Statutory provisions as to punishment to be strictly followed. | Whenever a statute creates an offense, and expressly provides a punishment, the statutory provisions must be followed strictly and exactly, and only the statutory penalty can be imposed.’ 12 Hawk. P.C. chap. 25, § 4 [Eng.] Rex v. Davis, Sayer, 163, 1754; Rex v. Harris, 4 T. R. 202, 2 Revised Rep. 358, 1791; Rex v. Sainsbury, 4 T. R. 451, 2 Revised Rep. 433, 1791; Rex v. Gregory, 2 Nev. & M. 478, 5 Barns & Ald. 555, 3 L. J. Mag. Cas. N. S. 25, 1833; Reg. v. Nott, 4 Q. B. 768, Dav. & M. 1, 12 L. J. Mag. Cas. N. S. 148, 7 Jur. 621, 1843. [Ind.] Tate v. State, 5 Blackf. 73, 1839. [Md.] Keller v. State, 11 Md. 525, 69 Am. Dec. 226, 1857. [N.H.] State v. Fletcher, 5 N. H. 257, 1830. [N. J.] State v. Sanford, 4 Crim. L. Mag. 221, 1883. [IN. Y.] People v. Bogart, 38 Park. Crim. Rep. 143, 1856. [N. C.] State v. Lenoir County, 11 N. C. (4 Hawks) 194, 1825; State v. Williams, 34 N. C. (12 Ired. L.) 172, 1851; State v. Parker, 91 N. C. 650, 1884. [S.C.] State v. Thompson, 2 Strobh. L. 12, 47 Am. Dec. 588, 1847. 2Wilson v. Com. 10 Serg. & R. 878, 1824; Gearhart v. Dixon, 1 Pa. St. 224, 1845. For proceedings against a corpo- ration, see infra, § 91; Reg. v. Great North of England R. Co. 9 Q. B. 315, 16 L. J. Mag. Cas. N. S. 16, 10 Jur. 755, 2 Cox, C. C. 70, 7 Eng. Rul. Cas. 466, 1846; People v. Albany, 11 Wend. 539, 27 Am. Dec. 95, 1834; Wharton, Crim. Pl. & Pr. §§ 109, 110, 220 et seq.; 6 Crim. L. Mag. 317. See note in 27 Am. Dec. 98, 99. 8 Bensley v. Bignold, 5 Barn. & Ald. 335, 1822. If no penalty is attached to a for- bidden act, it cannot be punished as a misdemeanor. State v. Gaunt, 13 Or. 115, 9 Pac. 55, 1885. 4See United States v. Brown, Deady, 566, Fed. Cas. No. 14,662, 1869; Woodward v. Squires, 39 Iowa, 435, 1874; Keith v. Tuttle, 28 Me. 326, 1848. 1Rex v. Wright, 1 Burr. 543, 1758; People v. Stevens, 13 Wend. 46 CRIMINAL LAW. [§ 32 § 32. New statutory penalties are cumulative with common law. Where a statute attaches a police penalty to that which was an offense at common law, and where there is. nothing in the statute to show that the statutory remedy is to be exclusive, either the remedy by statute or that at common law can be pursued. And if the statute specify a mode of pro- ceeding different from that by indictment, then, if the matter were already an indictable offense at common law, and the stat- ute introduced merely a different mode of prosecution and punishment, the remedy is cumulative, and the prosecutor has the option of proceeding either by indictment at common law or by the mode pointed out by the statute. Thus, where the: charter of a turnpike road provided a particular penalty for not keeping the road in repair, negligence in this respect followed by injury was held indictable at common law.? But where the 341, 1835; People v. Hislop, 77 N. Y. 331, 1879. Infra, §§ 40, 42. 12 Hale, P. C. 191; Mounson v. Redshaw, 1 Wms’ Saund. 195, note (4); Rex v. Dickenson, 1 Wms’ Saund. 135, 1679; Rex v. Wigg, 2 Ld. Raym. 1163, 2 Salk. 460, 1706; Rex v. Robinson, 2 Burr. 799, 2 Ld. Kenyon, 513, 1759; Rex v. Balme, Cowp. pt. 2, p. 648, 1777; Rex v. Carlile, 3 Barn. & Ald. 161, 1 Chit- ty, 451, 1819. [Md.] State v. Evans, 7 Gill & J. 290, 1835. [Tenn.] Moore v. State, 9 Yerg. 353, 1836. Contra, State v. Boogher, 71 Mo. 631, 1880. See Wharton, Crim. PI. & Pr. §§ 232-281, and cases cited. 2Susquehanna & B. Turnp. Road Co. v. People, 15 Wend. 267, 1836. Where statute prohibits act which was before lawful, and enforces the prohibition with a penalty, and a succeeding statute (Rex v. Boyall, 2 Burr. 832, 1759), or the same stat- ute in a subsequent substantive clause, describes a mode of proceed- ing for the penalty different from that by indictment, the prosecutor may, notwithstanding, proceed by indictment upon the _ prohibitory clause, as for a misdemeanor at com- mon law; or he may proceed in the manner pointed out by the statute, at his option. 2 Hale, P. C. 171; Rex v. Wright, 1 Burr. 548, 1758. See Rex v. Jones, 2 Strange, 1146, 1741; Rex v. Harris, 4 T. R. 202, 2 Revised Rep. 358, 1791; Wharton, Crim. Pl. & Pr. §§ 232, 281. But if the manner of proceeding: for the penalty be contained in the same clause which prohibits the act, the mode of proceeding given by the statute must be pursued, and no other; for the express mention of any other mode of proceeding im- pliedly excludes that of indictment... Rex v. Buck, 1 Strange, 679, 1726;. Rex v. Robinson, 2 Burr. 799, 2 Ld.. Kenyon, 518, 1759. In Pennsylvania it is provided that “in all cases where a remedy is: provided, or a duty enjoined, or any- thing directed to be done by any act or acts of assembly ef this common- wealth, the directions of the said’ acts shall be strictly pursued, and’ no penalty shall be inflicted, or any-- thing done agreeably to the pro- visions of the common law, in such cases, further than shall be neces- sary for carrying such act or acts. into effect.” Act of 21st of March,. 1806, § xiii.; 4 Smith’s Laws, 332; Wharton, Crim. Pl. & Pr. § 232. It has been held by the courts, in conformity with this act, that wher- ever a mode of procedure is at-- tached to a specifie offense by any: act of assembly, the common-law remedy is abrogated, and the indict— § 33] DEFINITION AND ANALYSIS OF CRIME. 47 statute prescribes a penalty which in its terms is exclusive, then no subsequent penalty can be imposed.? § 33. Offenses are divisible—1i. By discharging ag- gravating incidents. Questions frequently arise whether a particular offense is divisible; in other words, whether it is sus- ceptible of being divided into two or more offenses, each to be open to a separate prosecution.’ The first line of cases of this class we have to notice is where one offense is an ingredient in another, an assault in assault and battery, manslaughter in mur- der, and larceny in burglary. Several of such concentric layers may successively exist. Thus, we may take the case of an as- sault, enveloped by a battery, and this by manslaughter, and this by murder. Add the blow to the assault, and it becomes assault and battery. Add a killing to the assault and battery, and it becomes manslaughter. AcJ malice aforethought to manslaughter, and it becomes murder. Or, to take the converse, strip from murder the malice aforethought, and it becomes man- slaughter. Strip from manslaughter the death of the party as- saulted, and the offense becomes assault and battery. Nega- tive the battery, and the case is one of assault. Now this re- jecting of successive aggravations is a function open to juries in all cases where there is presented to them one offense in which another is inclosed. The jury may acquit of murder, and convict of manslaughter; or, as the practice is, convict of manslaughter, which operates as an acquittal of murder.’ Or the jury, on the same prosecu- tion, may convict of the assault, and thereby acquit of the man- ment and sentence must pursue the flicted. White v. Com. 6 Binn. 179, act. It has even been held that when 6 Am. Dec. 448, 1813; Com. v. Van an act of assembly gave a penalty to the party injured by the extorsive and corrupt conduct of a magistrate, to be recovered by a civil suit, the offense ceased to be indictable at common law. Com. v. Evans, 13 Serg. & R. 426, 1826. But. the act in question seems to apply only when a specific mode of procedure is directed by statute; for when a new penalty is attached to a common-law offense, the indict- ment may still be at common law, though in case of conviction none but the statutory punishment can be in- Sickle, Brightly (Pa.) 69, 1845; Com. v. Church, 1 Pa. St. 105, 44 Am. Dec. 112, 1845. See Wharton, Crim. Pl. & Pr. § 232. 3 Wharton, Crim. Pl. & Pr. § 455a, 1Theft committed in connection with a burglary may be treated as a distinct crime, and «a separate prosecution may be maintained for each offense. Smith v. State, 22 Tex. App. 350, 3 S. W. 238, 1886. 2See Wharton, Crim. Pl. & Pr. § 465. 48 CRIMINAL LAW. [§ 33 slaughter and the murder. No question has ever been made as to this right on the part of the jury; * and it is settled by a great preponderance of authority that a conviction of the minor offense, on an indictment which would have sustained a convic- tion of the major, is an acquittal of the major.* It has, how- ever, been much contested whether the prosecution, by dropping the major offense when such offense is a felony, can proceed for the minor offense. At common law it has frequently been held that if on trial a misdemeanor (e. g., assault) turns out to be a felony (e. g., rob- bery), then, on the ground that the misdemeanor is extinguished by being merged in the felony, the defendant must be acquitted of the felony.® A more rational doctrine, however, has been established by statutes, and in some jurisdictions by common law, to the ef- fect that the prosecution may in such cases waive the felony, and prosecute only for the constituent misdemeanor, supposing the misdemeanor be proved.® § 34. —2. By diversity as to time. No matter how long a time an offense may take in its perpetration, it continues but one offense. An explosive package, for instance, may be sent from Maine to California, and may take weeks in the transit, but the transmission is a single act. Difficult questions, indeed, may arise, to be hereafter noticed,’ when gas or liquor is tapped by a pipe through which there is a continuous passage for days. 3 Under indictment for adultery there can be a conviction of fornica- tion. See infra, § 2083. Under indictment for burglary, including larceny, there can be a con- viction of larceny. See infra, § 1038. Under an indictment for felonious assault there can be a conviction of assault. See infra, §§ 748, 839. Under indictment for rape whether there can be a conviction of a minor offense. See infra, § 748. See State v. Burk, 89 Mo. 635, 2 S. W. 10, 1886. Under indictment for robbery there can be a conviction of larceny. See infra, § 1093. Under indictment for murder there can be a conviction of manslaughter, See infra, § 675. 4See Wharton, Crim. Pl. & Pr. § 464. 5 Ibid. Infra, §§ 748, 840, 1609. 6Scee Wharton, Crim. Pl. & Pr. §§ 468-476. As to merger, see infra, § 39. Averments in indictment.—But the averments of the indictment should include the less offense. People v. Adams, 52 Mich. 24, 1883; State v. Yanta, 71 Wis. 669, 38 N. W. 333, 1888, If the offense charged is not a crime under the law, there can be no conviction of a less offense, though properly pleaded. State v. Ryan, 15 Or. 572, 16 Pac. 417, 1888. 1Infra, § 1169; Wharton, Crim. Pl. & Pr. § 474. § 37] DEFINITION AND ANALYSIS OF CRIME, 49 But whatever may be the conclusion as to such cases, it is settled that nuisances, when distinct impulses are given at intermittent successive times, may be the object of successive prosecutions.” The distinction is this: when the impulse is single, but one in- dictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in nwelling a common stream of action, separate indictments lie. § 35. —3. By diversity as to place. An offense which is continued through a series of jurisdictions may be prosecuted in any one of them.’ § 36. —4. By diversity as to object. An offense, also, is capable of division by being directed to a plurality of objects. It has been said, indeed, that to strike A and B at one blow is but one offense.’ But though this may be sustained in cases in which there was no intention to strike more than one blow, it is otherwise when two homicides, of distinct grades, are consum- mated by one act, or when there is an intention to kill two per- sons.” And so the stealing simultaneously of the goods of two persons is divisible.* § 37. —5. By diversity as to aspect. An offense may have several aspects: e. g., it may be a larceny, or it may be an official embezzlement. If an offense of this class can be de- scribed in its several phases in one indictment, then, as a rule, it is not divisible; if it cannot be so described, then it may be indicted in either aspect. There are cases, however, to be else- where discussed,’ in which the State, by selecting one of these aspects to prosecute, is precluded from afterward prosecuting the other. 2 Wharton, Crim. Pl. & Pr. § 475. Cowp. pt. 2, p. 640, 1 Smith, Lead. 8The test is whether the indi- Cas. 8th Eng. ed. 711, 8th Am. ed. vidual acts are prohibited, or the 1079, 1777; Friedeborn v. Com. 113 course of action which they consti- Pa. 242, 57 Am. Rep. 464, 6 Atl. 160, tute. If the former, then each act is 1886. : punishable separately. Reg. v. Scott, 1 Wharton, Crim. Pl. & Pr, § 473. 4 Best. & S. 368, 33 L. J. Mag. Cas. As to conflicting jurisdiction, see N.S. 15, 8 L. T. N. S. 662, 1863; infra. §§ 333-338. Re Hartley, 31 L. J. Mag. Cas. N.S. 1 Wharton, Crim. Pl. & Pr. § 469. 232. 1862; Ex parte Beal, |. R.3Q. 2 Wharton, Crim. Pl. & Pr. §§ 254, B. 287, 9 Best & S. 395, 87 L. J. Q. 468. B. N. S. 161, 18 L. T. N.S. 285, 8 Wharton, Crim. Pl. & Pr. §§ 252, 16 Week. Rep. 852, 1868. 470. —If the latter, there can be but 1 Wharton, Crim. Pl. & Pr. § 471. one penalty. Crepps v. Durden, Crim, L. Vol. I—4. 50 CRIMINAL LAW. [§ 38 § 38. —6. By diversity as to actors. An offense, in the last place, may have several actors, who may be jointly indicted, but as to whom verdict and judgment are to be several." Any one of these, as a rule, may be acquitted or convicted independ- ently of the others; though, in cases of conspiracy and riot, one party alone cannot be convicted unless, in conspiracy, there is at least one co-conspirator to unite in constituting the offense, or, in riot, at least two corioters.” § 39. Merger is absorption of lesser in greater of- fense. Merger is said to exist when a lesser offense is absorbed in a greater, but in criminal practice the only case in which such absorption is claimed to be operative is when a misdemean- or is an ingredient of a felony, in which case the older authori- ties maintain that the trial must be exclusively for the felony, and that the defendant cannot, under an indictment for felony, be convicted of misdemeanor.’ 1 Wharton, Crim. Pl. & Pr. §§ 306- 312. 2 Wharton, Crim. Pl. & Pr. §§ 305- 312. 1See Wharton, Crim. Pl. & Pr. § 464; infra, §§ 521, 748, 840, 1608; State v. Cooper, 13 N. J. L. 361, 25 Am. Dec. 490, 1833; Johnson v. State, 26 N. J. L. 313, 1857; Elkin v. People, 24 How. Pr. 272, 1862. One offense does not merege in an- other unless they are the same, and there exists identity of time, place, and circumstances. Hughes v. Com. 131 Ky. 502, 31 LR.A.(N.S.) 693, 115 S. W. 744, 1909. —Misdemeanor not merged in fel- ony when. [Ga.] Eberhart v. State, 5 Ga. App. 174, 62 S. E. 730, 1908. [Ind.] Harman v. State, 11 Ind. 311, 1858. [Mass.] Com. v. Macomber, 3 Mass. 254, 1807; Com. v. Roby, 12 Pick. 496, 1832. [Mich.] People v. Bristol, 23 Mich. 118, 1871; People v. Arnold, 46 Mich. 268, 9 N. W. 406, 1881; Nichols v. Superior Ct. Judge, 130 Mich. 187, 89 N. W. 691, 1902; [Mo.] St. Louis v. Lee, 8 Mo. App. 599, 1880; St. Louis v. Close, 8 Mo. App. 599, 1880; State v. Livesay, 30 Mo. App. 633, 1888. [N. Y.] People v. Bruno, 6 Park. Crim. Rep. 657, 1865. —Where offense consists of series of acts, part of which constitute a The reason alleged for this is complete misdemeanor, there can be no merger of the misdemeanor in the felony. Elkin v. People, 24 How. Pr. 272, 1862. See State v. Coppen- burg, 2 Strobh. L. 273, 1848. —Where misdemeanor is merged in the consummated act, a conviction on prosecution of the misdemeanor bars prosecution for the felony; as where a person was convicted of mis- demeanor of pointing loaded pistol at another, and the evidence showed that the pointing of the pistol was part of the consummated act, con- viction of the misdemeanor barred prosecution for consummated felony. Eberhart v. State, 5 Ga. App. 174, 62 S. E. 730, 1908. —Rule abolished in Georgia. See Sharp v. State, 7 Ga. App. 605, 67 S. E. 699, 1910. —Offenses of same grade are not merged. See [Cal.] People v. Hatch, 13 Cal. App. 521, 109 Pac. 1097, 1910, [Ill] Lane v. Springfield, 120 Til. App. 5, 1905. [Ind.] Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22, 1871. [Ky.] Keeton v. Com. 92 Ky. 522, 18 8. W. 359, 1892. [Minn.] State v. Vadnais, 21 Minn. 382, 1875. [Or.] State v. Pomeroy, 30 Or. 16, 46 Pac. 797, 1896. [Tenn.] Ricketts v. State, 111 Tenn. 380, 77 S. W. 1076, 14 Am. Crim. Rep, 301, 1903. —Misdemeanor not merged in mis- § 39] DEFINITION AND ANALYSIS OF CRIME. 51 that in those days the incidents of a trial for felony were so different from those of a trial for misdemeanor that it was not right to invest the prosecution with the power of interchanging them at its caprice. A party charged with felony, for instance, was not entitled to counsel, and his right of challenge and his right to a copy of the indictment were restricted. If there were no merger,—if, on the one side, the defendant, on proof of the felony on an indictment for misdemeanor, could be convict- ed of the misdemeanor charged; or if, on the other side, on disproof of the felony on an indictment for the felony, he could be convicted of the constituent misdemeanor,—this would do away with the distinction between felonies and misdemeanors, as above stated. This distinction, however, the courts could not do. away with; the only way to avoid this was to preserve the line of demarcation between felonies and misdemeanors in- tact. This they did by determining (1) that there could be no conviction of a misdemeanor on an indictment for a felony, for this would be to deprive the defendant of privileges to which he would be entitled if the indictment was for a misdemeanor ; and (2) that if the offense charged was a misdemeanor, and the offense proved turned out to be a felony, then there must be an acquittal, which would not bar an indictment for felony, on the trial of which the defendant would be put under due restrictions as to counsel and other privileges. As will be hereafter seen,* since the abolition of these distinctions between felony and mis- demeanor, the doctrine of merger, above stated, has no reason- able basis on which to rest. The consequence is that a defend- ant charged with an assault is no longer, as a rule, held to be entitled to an acquittal because the assault is part of a felony; while by statute, if not by judicial construction, there are now no jurisdictions in which a defendant, on an indictment for felony, cannot be acquitted of the felony, and convicted of the constituent misdemeanor, if duly pleaded. If, however, there is no constituent misdemeanor duly pleaded, then the defend- ant, if acquitted of the felony, cannot be convicted of a misde- meanor proved on the trial, but not averred in the indictment. demeanor. See Berkowitz v. United 2Infra, §§ 748, 840, 1608. States, 35 C. C. A. 379, 93 Fed. 452, 1899. CRIMINAL LAW. [§ 40 § 40. Penal statutes to be construed favorably to ac- cused. The proposition that penal statutes are to be strictly construed is to be applied not to the merely remedial, but only to the restrictive and punitive clauses in penal statutes. A statute operates to enlarge or to restrain liberty: when the for- mer, it is to be largely construed; when the latter, cautiously and strictly. This is a maxim of the Roman law, which, though foreign to the notion of the old English common law, that crime is to be avenged in kind and in full measure, was at an early period adopted by English jurists.’ In construing such statutes, however, we are to look for their reasonable sense, and if this is clearly ascertained it must sense is possible.? The courts 1L. 42, D. de pon. (48. 19.) In- terpretatione legum pene molliendze sunt potius, quam asperande. L. 155, § 2. D. de reg. iur. (50. 17.) In penalibus causis benignius interpre- tandum est. cap. 49. de reg. iur. in VI. (5. 13.) In peenis benignior est interpretatio facienda. See also 1 Bl. Com. 86, 87; Bacon, Abr. Stat. i. 7, 9. [Fed.] United States v. Rags- dale, Hempst. 479, Fed. Cas. No. 16,113, 1847; Andrews v. United States, 2 Story, 202, Fed. Cas. No. 381, 1842. [Mass.] Com. v. Martin, 17 Mass. 359, 1821. [Mo.] State v. Jaeger, 63 Mo. 403, 1876. [N. Y.] Carpenter v. People, 8 Barb. 603, 1850. [Pa.] Warner v. Com. 1 Pa. St. 154, 44 Am. Dec. 114, 1845; Bucher v. Com. 103 Pa. 528, 1883. [S. C.] State v. Stephenson, 2 Bail. L. 334, 1831. [Tex.] Randolph v. State, 9 Tex. 521, 1853. Contra: under New York Penal Code of 1882; under the California Code; Ex parte Gutierrez, 45 Cal. 429, 1878; People v. Soto, 49 Cal. 67, 1874; and in Kentucky; Com. v. Davis, 12 Bush, 240, 1876. 2[Fed.] United States v. Statts, 8 How. 41, 12 L. ed. 979, 1850; Cum- mings v. Missouri, 4 Wall. 277, 18 L. ed. 356, 1866; United States v. Hart- well, 6 Wall. 385, 18 L. ed. 830, 1867; United States v. Jones, 3 Wash. C. C, 209, Fed. Cas. No. 15,494, 1813. [Me.] State v. Smith, 32 Me. 369, 54 Am. Dec. 578, 1851. [Md.] State v. Fearson, 2 Md. 310, 1852. be applied, though a narrower are, on the one hand, to refuse [Mass.] Brown v. Com. 8 Mass. 59, 1811; Com. v. Whitmarsh, 4 Pick. 233, 1826. [N. J.] Stone v. State, 20 N. J. L. 401, 1845. [N. Y.] Hodg- man v. People, 4 Denio, 235, 1847; People v. Mather, 4 Wend. 229, 21 Am. Dec. 122, 1830; People v. Hen- nessey, 15 Wend. 147, 1836. [N. C.] State v. Girkin, 23 N. C. (1 Ired. L.) 121, 1840; State v. Keith, 63 N. C. 140, 1869. [Pa.] Ream v. Com. 3 Serg. & R. 207, 1817; Com. v. King, 1 Whart. 448, 1836. [S. C.] State v. Taylor, 2 M’Cord, L. 488, 1828. [Va.] Angel v. Com. 2 Va. Cas. 228, 1820; Thomas v. Com. 2 Leigh, 741, 1830. This qualification is common to all systems of jurisprudence. Thus, the Roman law: L. 6, § 1. D. de verb. signif. (50. 16.) Verbum: ex legibus, sic accipien- dum est, tam ex legum sententia quam ex verbis. L. 3. D. de L. Pomp. de parric. (48. 9.) Sed sciendum est, lege Pompeia de consobrino compre- hendi, sed non etiam eos pariter com- plecti, qui pari proprioreve gradu sunt. Sed et noverce et sponse persone omisse sunt, sententia ta- men legis continentur. L. 1. § 13. D. ad SC. Turpill. (48. 16.) verum hune, qui hoc ministerio usus est ad mandandam accusationem, non ex verbis, sed ex sententia Senatus- consulti puniri, Papinianus respondit. Quintilian. Declam. 331. Statute borrowed from another state is to be given the construc- § 41] DEFINITION AND ANALYSIS OF CRIME. 53 to “extend the punishment to cases which are not clearly em- braced” in the statutes; on the other hand, to refuse, “by any mere verbal nicety, forced construction, or equitable interpreta- tion, to exonerate parties plainly within their scope.” * At the same time, in matters of reasonable doubt, this doubt is to tell in favor of liberty and life.‘ § 41. Retrospective statutes inoperative. A law can- not impose a penalty on acts committed before its enactment.’ When a punishment is inflicted at common law, then the case is brought within the principle just stated, by the assumption that the case obviously falls within a general category to which the law attaches indictability. It may be said, for instance, “All malicious mischief is indictable. This offense (although enu- merated in no statute, and never in the concrete the subject of prior adjudication) is malicious mischief. Therefore this of- fense is indictable.” Strike out “malicious mischief,” and in- sert “nuisance,” and the same conclusion is reached. It is no reply to this reasoning that we have, by this process, judge- made law, which is ex post facto.” Supposing the minor prem- tion put upon it by the courts of such other state prior to the time at which it was so borrowed or adopted. [Fed.] Robinson v. Belt, 187 U. 8. 41, 47 L. ed. 65, 28 Sup. Ct. Rep. 16, 1902. [Ariz.] Elias v. Territory, 9 Ariz. 1, 15, 76 Pac, 611, 11 A. & E. Ann. Cas. 1153, 1904. [Nev.] State v. Robey, 8 Nev. 312, 1873; Hunter v. Truckee Lodge, No. 14, I. O. O. F. 14 Nev. 24, 36, 1879; Gos- sage v. Crown Point Gold & S. Min. Co. 14 Nev. 153, 1879; State v. Hart- ley, 22 Nev. 342, 28 L.R.A. 33, 40 Pac. 373, 1895; Ex parte Boyce, 27 Nev. 334, 65 L.R.A. 56, 75 Pac. 4, 1 A. & E. Ann. Cas. 66, 1904. See also note in 3 L.R.A. 391. 3 Sedgw. Stat. Law, 282, approved in Atty. Gen. v. Sillem, 2 Hurlst. & C. 430, 531, 548, 1863. 4[Fed.] United States v. Sheldon, 2 Wheat. 119, 4 L. ed. 199, 1817; United States v. Wiltberger, 5 Wheat. 76, 5 L. ed. 87, 1820; United States v. Morris, 14 Pet. 464, 10 L. ed. 543, 1840; United States v. Clayton, 2 Dill, 219, Fed. Cas. No. 14,814, 1871. [Colo.] Bradley v. People, 8 Colo. 599, 1885. [Ill.] Hankins v. People, 106 Ill. 628, 1883, The main point, as in all statu- tory construction, is not to defeat the intention of the legislature. 1Quoties de delicto queareitur, placuit, non eam peenam subire quem debere, quam conditio eius admittit eo tempore, quo sententia de eo fer- tur, sed eam, quam, sustineret, si eo tempore esset sententiam passus, quum del: uisset. L. 7: C. de legg. (1. 14.) L. 65. C. de decur. (10. 31.) Nov. 22. ¢. 1. cap. 2. 13. X. de con- stitt. (1. 2.) can. 38. Can. 32. qu. 4. This is prescribed in the Constitu- tion of the United States, art. I. § 9, el, 8; art. L. § 10, cl. 1. A test oath may, under certain circumstances, be constitutional. Wooley v. Watkins, 2 Idaho, 590, 22 Pac. 102, 1889; Shepherd v. Grim- mett, 3 Idaho, 403, 31 Pac. 793, 1892. Compare, Cummings v. Missouri. 4 Wall. 277, 18 L. ed. 356, 1866; Ex parte Garland, 4 Wall. 333, 18 L. ed. 366, 1866; Washington v. State, 75 Ala, 582, 51 Am. Rep. 479, 1884. 2See. supra, §§ 14, 15, 18; infra, § 296. 54 CRIMINAL LAW. [§ 41 ise be correct, the objection just stated could not prevail with- out being equally destructive to most prosecutions for offenses prohibited by statute under a nomen generalissimum. In most of our statutes, for instance, neither murder, burglary, nor as- sault is so described as to leave nothing remaining to the court by way of explanation or epplication. At the same time, if the offense charged is not one which, by ordinary and natural construction, falls within a prohibited class, it is far better that the criminal should escape, than that by a forced and unnatural construction the offense should be held indictable. So far as concerns statutes, the rule is rigorously applied, and is fortified by the constitutional provision that no statute shall have an ex post facto operation. And this clause has been interpreted as meaning that no person is to be subjected by statute either to a penalty for an act which at the time of its commission was not the object of prosecution,® or to a penalty higher than was attached to such act at the time of its commission.* § 42. Acts imposing a severer penalty are inoperative. While acts imposing severer penalties cannot be applied retro- spectively, doubtful questions as to what is a severer penalty are to be determined in favor of the accused,’ but, as a general 3Re Murphy, Woolw. 141, Fed. Cas. No. 9,947, 1867. 4Or that in any way alters the position of the defendant to his dis- advantage. U. S. Const. art. 1, §§ 9, 10; 2 Story, Const. § 1345; Cooley, Const. Lim. 6th ed. 318 et seq. [Fed.] Re Chin Ah On, 9 Sawy. 348, 18 Fed. 506, 1883. [Colo.] Gar- vey v. People, 6 Colo. 559, 45 Am. Rep. 531, 1883; Garvey’s Case, 7 Colo. 384, 49 Am. Rep. 358, 3 Pac. 903, 4 Am. Crim. Rep. 254, 1884. [Mass.] Com. v. Phillips, 11 Pick. 28, 1881. [Mo.] State ex rel. Blake- man v. Hays, 52 Mo. 578, 1873. [Pa.] Com. use of United States v. Lewis, 6 Binn. 266, 1814; Com. ex rel. Mun- derbach v. Reigart, 14 Serg. & R. 216, 1826; Myers v. Com. 2 Watts & S. 60, 1841. [Va.] Rand v. Com. 9 Gratt. 738, 1852. As to procedure, see Perry v. Com. 8 Gratt. 632, 1846. Ex post facto law defined.—Ac- cording to Marshall, Ch. J., an ex post facto law is one “which renders act punishable in a manner not pun- ishable when it was committed.” Fletcher v. Peck, 6 Cranch, 87, 3 L. ed. 162, 1810. This is adopted in 1 Kent. Com. 409. See full collection of cases in 3 Words & Phrases, pp. 2527-2533. 1 People v. McNulty, 98 Cal. 427, 26 Pac. 597, 29 Pac. 61, 1892; State ex rel. Houston v. Willis, 66 Mo. 131, 1877. What constitutes ex post facto law.—A statute which negatives a matter of defense formerly admissi- ble is ew post facto (Lindzey v. State, 65 Miss. 542, 7 Am. St. Rep. 674, 5 So. 99, 1888); so is one that reduces the credit on fine and costs allowed a convict by his daily labor (Ex parte Hunt, 28 Tex. App. 361, 13 S. W. 145, 1890); one divesting the jury of discretion (Marion v. State, 16 Neb. 349, 20 N. W. 289, 1884); and one imposing a penalty for nonpay- ment of taxes then due (Gager v. Prout, 48 Ohio St. 89, 26 N. E, 1018, 1891). § 42] DEFINITION AND ANALYSIS OF CRIME. 55 rule, changes in a punishment subsequent to the commission of an offense not consisting in a lessening of the prior penalty or some severable portion thereof have no application to such offense.” It is otherwise with statutes mitigating the prior penalty, which statutes are not unconstitutional in respect to acts committed prior to their passage.* Where the punishments are capable of actual measurement, a milder recent statute in force at the time of trial supersedes, so far as concerns the penalty, —Changing place of imprison- ment.—It has been held that a law changing the place of imprisonment from a county to a state prison was not ex post facto. Re Tyson, 13 Colo. 482, 6 L.R.A. 472, 22 Pac. 810, 8 Am. Crim. Rep. 418, 1889; See Peo- ple v. McNulty, 93 Cal. 427, 26 Pac. 597, 29 Pac. 61, 95 Cal. 594, 30 Pac. 963, 1892. But the authority of the Federal courts is against this ruling. Re Medley, 134 U. S. 160, 33 L. ed. 835, 10 Sup. Ct. Rep. 384, 1890; Re Sav- age, 134 U. S. 176, 33 L. ed. 842, 10 Sup. Ct. Rep. 389, 1890. 2 [Ill.] Wilson v. Ohio & M. R. Co. 64 Til. 542, 16 Am. Rep. 565, 1872. [Mich.] People v. Dane, 81 Mich. 36, 45 N. W. 655, 1890. [Miss.] Lindzey v. State, 65 Miss. 542, 7 Am. St. Rep 674, 5 So. 99, 1888. [Mo.] State ex rel. Houston v. Willis, 66 Mo. 131, 1877. [N. Y.] Hartung v. People, 22 N. Y. 95, 1860; Shepherd v. People, 25 N. Y¥. 406, 1862; Ratzky v. Peo- le, 29 N. Y. 124, 1864; Kuckler v. eople, 5 Park. Crim. Rep. 212, 1862. [Tex.] Simco v. State, 8 Tex. App. 406, 1880. See [Fed.] Kring v. Mis- souri, 107 U. S. 221, 27 L. ed. 506, 2 Sup. Ct. Rep. 443, 1882. 8[Fla.] Ex parte Pells, 28 Fla. 67, 9 So. 833, 1891. [Mass.] Com. v. Wyman, 12 Cush. 287, 1853. [Neb.] Hair v. State, 16 Neb. 601, 21 N. W. 464, 4 Am. Crim. Rep. 127, 1884. [N. Y.] People v. Hays, 140 N. Y. 484, 23 L.R.A. 830, 37 Am. St. Rep. 572, 35 N. E, 951, 1894, affirm- ing 70 Hun, 111, 24 N. Y. Supp. 194, 1893. [N. C.] State v. Kent, 65 N. C. 311, 1871. [Tex.] Perez v. State, 8 Tex. App. 610, 1880; McInturf v. State, 20 Tex. App. 335, 1886. a prior statute under which the See Cooley, Const. Lim. 6th ed. 319 et seq.; Wharton, Am. Law, § 473. : Mitigation — What constitutes.— There has been some diversity of opinion as to what constituted a mitigation, Where the punishment of death was changed by statute to fine, whipping, and imprisonment, the law was held to apply to pending cases. State v. Williams, 2 Rich. L. 418, 45 Am. Dec. 741, 1846. In Herber v. State, 7 Tex. 69, 1851, a similar law was held ew post facto. Statutes permitting a conviction for a less offense (State v. Johnson, 81 Mo. 60, 1883); lowering the de- gree of a homicide (Lovett v. State, 83 Fla. 389, 14 So. 837, 1894); and making executions more private (Holden v. Minnesota, 137 U. S. 483, 34 L. ed. 734, 11 Sup. Ct. Rep. 143, 1890), are clearly in mitigation. So is one that renders it impossible to convict the defendant of the degree of crime to which he was liable be- fore its passage. Garvey’s Case, 7 Colo. 384, 49 Am. Rep. 358, 4 Pac. 903, 4 Am. Crim. Rep. 254, 1884; See 5 Crim. L. Mag. 325. Indictability barred by statute— Effect of repeal of statute—When an offense has ceased to be indictable because of « statute of limitations, indictability will not be revived by a repeal of the statute. [Ill.] Gar- rison v. People, 87 Ill. 96, 1877. [N. J.] Moore v. State, 48 N. J. 1. 203, 39 Am. Rep. 558, 1881, revers- ing, 42 N. J. L. 208, 1880. [S. C.] State v. Cooler, 30 8. C. 105, 3 L.R.A. 181, 8 S. E, 692, 1889. 56 CRIMINAL LAW. [§ 42 offense was committed.* Should it happen that between a se- verer statute, during whose operation an offense was committed, and a milder statute which was in operation at the time of the trial, a third statute was intermediately in force, milder than either, the last-named statute is not to be taken into consider- ation, the dominant statute being that which was in force at the time of the trial. But where, after the commission of an of- fense, a statute is passed assigning an inereased penalty to second offenses of a particular type, and then a second offense of such type is committed, the increased penalty may be in- flicted on the second offense.® 4 [Tex.] Veal v. State, 8 Tex. App. 474, 1880, holding that in such case the defendant might elect to be punished under the older statute. Defendant will be permitted to elect between new and old penalty, especially when there is any doubt as to the question of mitigation. Clarke v. State, 23 Miss. 261, 1852; Herber v. State, 7 Tex. 69, 1851; Veal v. State, 8 Tex. App. 474, 1880; McInturf v. State, 20 Tex. App. 335, 1886. No punishment after repeal.— After a law has been repealed, there can be no punishment under it. [Fed.] Yeaton v. United States, 5 Cranch, 281, 3 L. ed. 101, 1809. [Colo.] Hirschburg v. People, 6 Colo. 145, 1881. [Ind.] Whitehurst v. State, 43 Ind. 478, 1873. [Ky.] Com. v. Cain, 14 Bush, 525, 1879. [Md.] Smith v. State, 45 Md. 49, 2 Am. Crim. Rep. 485, 1876. [Miss.] Lindzey v. State, 65 Miss. 542, 7 Am. St. Rep. 674, 5 So. 99, 1888. It follows, therefore, that when an act is repealed, and the repealing act is ew post facto, there can be no prosecution as to crimes committed before its passage. [Cal.] People v. Tisdale, 57 Cal. 104, 1880. [Conn.] State v. Daley, 29 Conn. 272, 1860. [Mass.] Com. v. McDonough, 13 Al- len, 581, 1866. [Minn.] State v. Mc- Donald, 20 Minn. 136, Gil. 119, 1873. [N. Y.] Hartung v. People, 22 N. Y. 95, 1860; Hartung v. People, 26 N. Y. 167, 1863; Hartung v. People, 28 N. Y. 400, 1868. [Vt.] State v. Meader, 62 Vt. 458, 20 Atl. 730, 1890. If judgment noc reached before the passage of repealing statute, the prosecution will be abated. People v. Meakin, 8 N. Y. Crim. Rep. 416, 1892. When the new statute inflicts a punishment milder in some respects only (e. g. lowering the maximum and raising the minimum), the old statute is to be applied exclusively, as otherwise the judge would be lett at liberty to pick out the parts of each statute that suited him, and so virtually make a new law. See Tur- ner v. State, 40 Ala. 21, 1866. But see, on the other hand, Hilschner, System, i. p. 43; Berner, pp. 53, 54; Geib, ii. 47. If the new statute merely re- enacts the old, or continues it in force, it is a continuation, not in any sense a repeal, and applies to crimes previously committed. Sage v. State, 127 Ind. 15, 26 N. E. 667, 1890; State v. Wish, 15 Neb, 448, 19 N. W. 686, 1884; Ex parte Larkin, 1 Okla. 538, 11 L.R.A. 418, 25 Pac. 745, 1891. This applies to all revisions and codes. 5 Geib, ii. p. 46. 6 [Cal.] Ex parte Gutierrez, 45 Cal. 429, 1873. [Me.] State v. Woods, 68 Me. 409, 1878. [Mass.] Plumbly v. Com. 2 Met. 418, 1841; Com. v. Graves, 155 Mass. 163, 16 L.R.A. 256, 29 N. E. 579, 1891; Sturtevant v. Com. 158 Mass, 598, 33 N. E. 648, 1893. [N. ¥.] People v. Butler, 3 Cow. 347, 1824; Wood v. People, 53 N. Y. 511, 1873; People v. Raymond, 96 N. Y. 38, 1884. [Ohio] Blackburn v. State, 50 Ohio St. 428, 36 N. E, 18, § 43] DEFINITION AND ANALYSIS OF CRIME. 57 § 43. Procedure and rules of evidence may be retro- spectively changed. A statute, however, subsequent to an offense, may change the mode by which it is to be prosecuted, provided the punishment attached to the offense is not thereby increased, or the defendant’s rights materially impaired.? The privilege, also, of merely technical objections may be in- termediately withdrawn. The law as to venue may be there- fore retrospectively changed,® and so as to the mode of chal- lenging jurors,* provided no substantial injustice is thereby 1893; Re Kline, 6 Ohio C. C. 215, 3 Ohio C. D. 422, 1892. [Va.] Rand v. Com. 9 Gratt. 738, 1852. [Wyo.] Re Wright, 3 Wyo. 478, 13 L.R.A. 748, 31 Am. St. Rep. 94, 27 Pac. 565, 1891. Compare, Re Ross, 2 Pick. 165, 1824. 1Cooley, Const. Lim. 6th ed. 318 et seq.; Wharton, Am. Law, § 473; Calder v. Bull, 3 Dall. 386, 1 L. ed. 648, 1798; State v. Manning, 14 Tex. 402, 1855. Amendment of statute as to penal- ty inflicted, however, applies to crimes committed after date of pas- sage only. People v. MeNulty, 93 Cal. 427, 26 Pac. 597, 29 Pac. 61, 1892, 149 U. S. 645, 37 L. ed. 882, 13 Sup. Ct. Rep. 959, 1893; People v. Vineent, 95 Cal. 425, 30 Pac. 581, 1892; Re Davis, 6 Idaho, 766, 59 Pac. 544, 1899; See People v. Durrant, 119 Cal. 201, 51 Pac. 185, 10 Am. Crim. Rep. 536, 1897. Statute altering jurisdiction of crime.—A statute or Constitution altering the jurisdiction of crimes is not ex post facto. Duncan v. Mis- souri, 152 U. S. 377, 38 L. ed. 485, 14 Sup. Ct. Rep. 570, 1884; State v. Cooler, 30 S. C. 105, 3 L.R.A. 181, 8 S. E. 692, 1889; State v. Welch, 65 Vt. 50, 25 Atl. 900, 1892. Nor is one that affects the mode of procedure only. Sage v. State, 127 Ind. 15, 26 N. E. 667, 1891. Statute giving power to proceed by information, in addition to the for- mer procedure by indictment, was ex post facto. McCarty v. State, 1 Wash. 377, 22 Am. St. Rep. 152, 25 Pac. 299, 1890. But this has been tacitly overruled. State v. Hoyt, 4 Wash. 818, 30 Pac. 1060, 1892; Lybarger v. State, 2 Wash, 552, 27 Pac. 449, 1029, 1891; Re Wright, 3 Wyo. 478, 13 L.R.A. 748, 31 Am. St. Rep. 94, 27 Pac. 565, 1891. Alteration in the constitution of the Supreme Court, pending an ap- peal or writ of error, is not ex post facto. Duncan v. Missouri, 152 U. S. 377, 38 L. ed. 485, 14 Sup. Ct. Rep. 570, 1894; State v. Jackson, 105 Mo. 196, 15.S. W. 333, 16 S. W. 829, 1891; State v. Bulling, 105 Mo. 205, 15 8S. W. 367, 16 S. W. 830, 1891. Alteration taking away power of the jury to judge of the law of the case is such. Marion v. State, 20 Neb. 233, 57 Am. Rep. 825, 29 N. W. 911, 1886. —An act requiring insanity to be set up by special plea is not ex post facto. Perry v. State, 87 Ala. 30, 6 So. 425, 1888. —An act to increase costs is not ex post facto. Campbell v. Mander- scheid, 74 Iowa, 708, 39 N. W. 92, 1888; Farley v. Geisheker, 78 Iowa, 453, 6 L.R.A. 533, 43 N. W. 279, 1889. Unless the costs in criminal law are to be considered part of the penalty. See Caldwell v. State, 55 Ala. 133, 1876. 2Compare, Com. v. Hall, 97 Mass. 570, 1867; Com. v. Holley, 3 Gray, 458, 1855. Contra. 8 Wharton, Crim. Pl. & Pr. § 602; Gut v. Minnesota, 9 Wall. 35, 19 L. ed. 578, 1869; Cook v. United States, 188 U. S. 157, 34 L. ed. 906, 11 Sup. Ct. Rep. 268, 1890. 4South v. State, 86 Ala. 617, 6 So. 52, 1889; Mathis v. State, 21 Fla. 291, 12 So. 681, 1893. Grand Jurors — Reducing number 58 CRIMINAL LAW. [§ 43 inflicted.’ The rules of evidence, shown elsewhere,® may be in- termediately changed, provided that the effect is not materially to impair the defendant’s rights.’ Hence, a statute enlarging the competency of witnesses’ acts retrospectively in criminal cases,* and so of a statute making certain facts prima facie proof ;° and of a statute making it the duty of the defendant, in liquor cases, to prove a license. But a statute making certain evidence conclusive proof of guilt is in any view unconstitu- tional ;** and it has so been held, also, so far as concerned an- tecedent cases, of a statute doing away with the necessity of corroborating an accomplice.” § 44. State may relieve from punishability by limita- tion or pardon. On either of the theories of punishability which have been heretofore stated, it is within the prerogative of the State, through its proper organs, to limit, to suspend, or to prohibit prosecutions, and to relieve from the penalties im- posed on crime. In exercise of this prerogative, it is ordinarily made essential to the prosecution of an indictment that it should be found by a grand jury, and that the defendant should be entitled to meet the witnesses produced against him face to face. By statutes of limitation and pardons, which are considered more fully in another volume, the State prescribes that prosecu- tions must be brought within a limited time after the commis- sion of the offense, or that the offender is not for the particular offense to be subject to prosecution.’ of.—The same is true of a statute reducing the number of grand jurors. State v. Ah Jim, 9 Mont. 167, 23 Pac. 76, 1890. 5 State v. Doherty, 60 Me. 504, 1872. 6 Wharton, Am. Law, §§ 474, 494; Stokes v. People, 53 N. Y. 164, 13 Am. Rep. 492, 1873; Mrous v. State, 31 Tex. Crim. Rep. 597, 37 Am. St. Rep. 834, 21 8S. W. 764, 1893. 7See Seip v. Storch, 52 Pa. 210, 91 Am. Dec. 148, 1866; Journeay v. Gibson, 56 Pa. 57, 1867; Richter v. Cummings, 60 Pa. 441, 1869. Compare, Calder v. Bull, 3 Dall. 386-390, 1 L. ed. 648-650, 1798. 8 Hopt v. Utah, 110 U. 8. 574, 28 L. ed. 262, 4 Sup. Ct. Rep. 202, 4 Am. Crim. Rep. 417, 1883; Sutton v. Fox, 55 Wis. 531, 42 Am. Rep. 744, 13 N. W. 477, 1882; Wharton, Crim. Ev. § 360a. 9State v. Thomas, 47 Conn. 546, 36 Am. Rep. 98, 1880; Com. v. Wal- lace, 7 Gray, 222, 1856. Compare, People v. Lyon, 27 Hun, 180, 1882; State v. Beswick, 13 R. I. 211, 43 Am. Rep. 26, 1881. 10 Com. v. Kelly, 10 Cush, 69, 1852. 11 Wharton, Am. Law, §§ 494, 596, 1856; see 5 Crim. L. Mag. 325. 12 State v. Bond, 49 N. C. (4 Jones, L.) 9, 1856. 1 Wharton, Crim. Pl. & Pr. §§ 316, 500. § 45] DEFINITION AND ANALYSIS OF CRIME. 59 § 45. Civil and criminal remedies may be concurrent. As is elsewhere seen,’ the English rule is that the policy of the law precludes a person from seeking civil redress for a feloni- ous injury to himself, if he has failed in his duty in endeavor- ing to bring the felon to justice. Whether this rule holds in this country has been much doubted; * and neither here nor in England has it been held to apply to misdemeanors.* In any view, the institution of a civil suit for redress for an injury is no bar to a criminal prosecution for the same offense, though in adjusting sentence in the criminal prosecution the courts take into consideration payments made or amends rendered by the defendant in the civil proceedings.* A prosecution for nuisance, for instance, as an offense against the public, may proceed con- currently with a suit by an individual for special damage in- curred by the nuisance, supposing such special damage to have been sustained; * and a civil suit and a criminal prosecution for the same assault and battery may also proceed concurrently.® The same distinction has been applied mutatis mutandis in cases of perjury.” The courts, however, by granting continu- ances, and ultimately shaping judgment, will endeavor to pre- vent an undue cumulation of process from working injustice.® Nor will a civil suit be permitted to proceed when it is in any way tainted by an understanding that a criminal prosecution shall be compounded or stifled.® 1 Wharton Crim. Pl. & Pr. § 453. But see Wells v. Abraham, L. R. 7 ‘Q. B. 554, 41 L. J. Q. B. N.S. 306, 26 L. T. N. S. 326, 20 Week. Rep. ‘659, 1872. 2See Nowlan v. Griffin, 68 Me. 235, 28 Am. Rep. 45, 1878, and authorities ‘there cited. 3Ibid. Fissington v. Hutchinson, 15 L. T. N. S. 390, 1866. Compare, Keir v. Leeman, 9 Q. B. 371, 15 L. J. Q. B. N.S. 359, 10 Jur. ‘742, 1846. 4People v. Stevens, 13 Wend. 341, 1835; Wharton, Crim. Pl. & Pr. ‘§ 454, and cases cited. 5[Eng.] Jones v. Clay, 1 Bos. & P. 191, 1798; Benjamin v. Storr, L. R.9C. P. 400, 48 L. J.C. P. N.S. 162, 30 L. T. N. S. 362, 22 Week. ‘Rep. 681, 19 Eng. Rul. Cas. 268, 1874. [Fed.] United States v. New Bedford Bridge, 1 Woodb. & M. 401, Fed. Cas. No. 15,867, 1846. [Me.] Portland v. Richardson, 54 Me. 46, 89 Am. Dec. 720, 1866. [N. Y.] Francis v. Schoell- kopf, 58 N. Y. 152, 1873. [Vt.] Ab- bott v. Mills, 3 Vt. 521, 23 Am. Dec. 222, 1831. 6Infra, § Bos. & P. 19 7VInfra, § 1588. 8Infra, § 814. See Reg. v. Will- mer, 15 Q. B. 50, 1850; Dudley & W. B. Bkg. Co. v. Spittle, 1 Johns. & H. 14, 2 L. T. N. S. 47, 8 Week. Rep. 351, 1860; Peddell v. Rutter, 8 Car. & P. 337, 1837. 9 Wharton, Contr. §§ 483 et seq. For instances of the cumulation of civil and criminal actions for the same wrong, see Wharton, Crim. Pl. & Pr. § 453. Also [Fed.] Re Les- zynsky, 16 Blatchf. 9, Fed. Cas. No. 814; Jones v. Clay, 1 1. 60 8,279, 1879. [Colo.] State v. Wal- sen, 17 Colo. 170, 15 L-R.A. 456, 28 Pac. 1119, 1892. [Ind.] State ex rel. Beedle v. Schoonover, 135 Ind. 526, 21 L.R.A. 767, 35 N. E. 119-121, 1893. [Iowa] Welch v. Jugenheimer, 56 Iowa, 11, 41 Am. Rep. 77, 8 N. W. 673, 1881. [Me.] Thayer v. Boyle, 30 Me. 475, 1849. [Mass.] Drake v. Lowell, 18 Met. 292, 1847. [Mo.] Knox County v. Hunolt, 110 Mo. 67, 19 S. W. 628, 1892. [N. H.] Quim- by v. Blackey, 638 N. H. 77, 1884. [N. Y.] Gordon v. Hostetter, 37 N. Y. 99, 1867; Austin v. Carswell, 67 Hun, 579, 22 N. Y. Supp. 478, 1893. [Ohio] New York, C. & St. L. R. Co. v. Lambright, 5 Ohio C. C. 433, 3 Ohio C. D, 213, 1891. [Pa.] Foster v. Com. CRIMINAL LAW. [§ 45 8 Watts & S. 77, 1844. [S. C.] State v. Stein, 1 Rich. L. 189, 1845. [Tex.] Heller v. Alvarado, 1 Tex. Civ. App. 409, 20 S. W. 10038, 1892. In Higgins v. Minaghan, 76 Wis. 298, 45 N. W. 127, 1890, it was tacit- ly assumed that such was the rule. See Minaghan v. State, 77 Wis. 643, 46 N. W. 894, 1890. Under statute creating offense and providing an adequate remedy by tine, as well as imprisonment, a civil action will not lie. Wayne County vy. Bressler, 832 Neb. 818, 49 N. W. 782, 1891. This, however, can only be true of actions for infringement of police statutes, unattended with any special injury to private per- sons, CHAPTER III. FITNESS OF OFFENDER TO COMMIT OFFENSE. I, Persons Non Comporrs MENTIS. § 46. § 47. § 48. § 49. Legal and psychological relations of persons of un- sound mind. —Old English rulings on insanity no longer authorita- tive. Irresponsibility to be determined by exclusion rather than by inclusion. Intellect and freedom of will necessary to responsibility. 1, Incapacity to distinguish between right and wrong. § 50. § 51. § 52. § 53. Party incapable of determining as to right or wrong of act is irresponsible. —Answer of English judges. —Doctrine in this country. “Wrong” means moral wrong. 2. Insane delusion. § 54. § 55. § 56. § 57. § 58. § 59. Delusion excuses act done bona fide and without malice, under its effect. Rule applies to all bona fide erroneous non-negligent con- victions. Actual danger not necessary. Delusion must be mental. Partial insanity no defense as to crime not its product. Delusion, to exculpate, must be non-negligent. 3. Irresistible impulse. § 60, § 61. § 62. “Irresistible impulse,” to be distinguished from “moral insanity” and from “passion.” Insane irresistible impulse a defense. Caution requisite as to this defense. 4. “Moral insanity.” § 63. Moral insanity no defense. 5. Mental disturbance as lowering grade of guilt. § 64. Mental disturbance admissible to disprove malice. 6. Intoxication. § 65. Persons under insanity produced by intoxication may be irresponsible. . Voluntary intoxication does not exculpate. . —Doctrine in this country. . Intoxication admissible to determine condition of mind. . —Especially as to intert to take life. . —And as to other questions of intent. 61 62 § 71. § 72. CRIMINAL LAW. —But not so as to reduce responsibility when malice is shown, “Voluntary” is conditioned by temperament. 7. Practice in case of insanity. § 73. § 74. § 75. § 76. § 77. § 78. § 79. § 80. § 81. § 82. § 83. Witness may give opinion based on observation. Defense may be taken by friends of the accused. In some jurisdictions plea is special. Issue to be tried by jury. Insanity after conviction defers execution. Burden is on party disputing sanity. Conflicting theories as to amount of evidence requisite to prove insanity. —Preponderance of proof theory. Insanity to be inferred from conduct. —And from physical peculiarities. —And from hereditary tendencies. 8. Other forms of unconsciousness. § 84. II. INFANTS. § 85. § 86. § 87. § 88. § 89. § 90. § 91. § 92. Other forms of unconsciousness may be a defense. Infants under seven not penally responsible. Between seven and fourteen an infant capar doli may be convicted. Boys under fourteen presumed incapable of rape. Infant’s liability in special cases. Infant liable for false representations as to age. When infant may appear by attorney. Age is inferable from circumstances. Confessions of infants admissible. III, Feme Coverrs. § 93. § 94. § 95. § 96. § 97. § 98. § 99. § 100. Indictment not bad on its face when against wife alone —So as to indictments against husband and wife jointly. Wife’s misnomer must be pleaded in abatement. Wife presumed to be acting under her husband’s co- ercion when co-operating in crime. —Presumption is rebuttable. For offenses distinctly imputable to husband, he is primarily indictable. For offenses distinctly imputable to wife, she is primarily indictable. In riot and conspiracy there must be others besides husband and wife. § 101. Distinctive rule as to accessories. IV. IaNnoRgant PERSONS. § 102. § 103. Ignorance of law no defense to an indictment for a vio- lation of law. —But on indictments for negligence in application of law, nonspecialist not chargeable with ignorance of specialty. FITNESS OF OFFENDER TO COMMIT OFFENSE, 63 § 104. Mistake of law admissible to negative evil intent. § 105. —And so as to mistakes of subsumption of facts in law. § 106. Statutes not operative until published. § 107. Ignorance or mistake of fact may be proved to negative intent. § 108. But when scienter is irrelevant, ignorance or mistake of fact is no defense. § 109. —Illustrations—Laws prohibiting sale of. intoxicating liquors. § 110. —Analogous cases under statutes regarding abduction, ete. § 111. —Cases under statutes making acts indictable irre- spective of intent. § 112. —Doctrine in Indiana, Ohio, and Texas. § 113. —Function of imposing indictability on pernicious acts irrespective of intent. § 114. —And so where the fact is one of which defendant ought to have been cognizant. § 115. In prosecutions for negligence, party is not required V. CoRPoRaTions. to know facts out of his specialty. § 116. Corporation indictable for breach of duty. § 117. —Indictment for crimina] contempt. § 118. —Criminal liability of stockholders. § 119. —Imputability of crime to corporation. § 120. —Murder and manslaugher. § 121, —Objections to doctrine of imputability of crime. § 122. —Penalty is fine and distress. § 123. Quasi-corporations indictable for breach of duty. VI. Persons UNDER COMPULSION. § 124. Persons under compulsion irresponsible. § 125 . Servant or child cannot defend on this ground. VII. Persons UNDER NEcESSITy; SELF-DEFENSE. § 126 § 127 § 128 § 129 Mmm MD car co» 130. 131. 132. 133. 134. 135. 136. . Necessity a defense when life or other high interests are imperiled. . Culpability does not preclude defense. . Distinction between necessity and self-defense. . Right may be exercised even though public authorities might have been called upon previously. Objects for which self-defense may be exerted. Flight not necessary to self-defense. Defense of property justifiable. But not violent defense of honor. Danger must be immediate, and defense not to exceed attack. Inference to be drawn from weapon. Defense against officer without warrant. 64 CRIMINAL LAW. [§ 46 I. Persons Now Comrotrs Menris. § 46. Legal and psychological relations of persons of unsound mind. Both the legal and the psychological rela- tions of persons of unsound mind are discussed at large in an- other work,’ to which the reader is referred as containing on these topics an exposition fuller than is permitted by the limits of the present chapter. At present it is proposed to do no more than to give a brief synopsis of the practical points which the decisions of the courts, as exhibited at large in the fuller treatise to which reference is made, may be considered as establishing. § 47. —Old English rulings on insanity no longer au- thoritative. At the outset, it should be observed that the in- troduction of compulsory confinement for parties acquitted of guilt on ground of insanity has, to some extent, altered the is- sue which the older text writers and judges discussed. Under the old practice, if the defendant was convicted, he was punished as if he were a perfect moral agent; and if he was acquitted, he ‘was suffered to run at large, though the acquittal was on the ground of a monomania, which would impel him to commit the ‘same act the very next day. Under the present practice, both these alternatives may be avoided, and the jury, by acquitting on the specific ground of insanity, may insure the sequestration of the defendant from society until the sanity be cured. This change of policy should always be kept in view when compar- ing the older with the later cases. Under the old law, the dan- gers ensuing from an acquittal on the ground of insanity made ‘courts reluctant to accept insanity as the ground for an acquittal. Under the present law, these dangers are much diminished, as such acquittal no longer involves the setting at large a danger- -ous lunatic. To this, as well as to the growing force of humane interest in the insane, we may attribute the more lenient atti- ‘tude toward this defense which judges have lately assumed. ‘The old rulings, so far as they are attributable to the then pol- acy of the law, are no longer binding. § 48. Irresponsibility to be determined by exclusion rather than by inclusion. It wil! not be here attempted to Jay down any general definition of insanity as constituting a 1 Wharton & S. Med. Jur. 4th ed. §§ 108 et seq. § 50] FITNESS OF OFFENDER TO COMMIT OFFENSE. 65 defense in criminal trials.’ It is proposed simply to enumer- ate the several cases in which this defense, in any of its phases, has been sustained by the courts, not as conferring irrespon- sibility for crime, but, according to the present practice, as con- stituting such a state of facts as to remove the defendant from the category of sane, to that of insane, transgressors. § 49. Intellect and freedom of will necessary to re- sponsibility. To responsibility (imputability) there are, we must remember, two constituents: (1) Capacity of intellec- tual discrimination; and (2) freedom of will. If there be either incapacity to distinguish between right and wrong as to the par- ticular act, or delusion as to the act, or inability to do or re- frain from doing the act, then there is no responsibility. The difficulty is practical. No matter what may be our speculative views as to the existence of conscience, or of freedom of ac- tion, we are obliged, when we determine responsibility, to af- firm both. The practical tests of capacity will be considered in the following sections: 1. Incapacity to distinguish between right and wrong. § 50. Party incapable of determining as to right or wrong of act is irresponsible. Wherever idiocy or amentia or general mania is shown to exist, the court will direct an ac- quittal; and if a jury should convict in the teeth of such instruc- 1 Mental depravity merely is not insanity, and furnishes no defense in a prosecution for a criminal act. Goodwin v. State, 96 Ind. 550, 1884. 1Freedom of Will—The contro- versy which divides theologians as well as metaphysicians, as to the freedom of the will, is not involved in the discussion in the text. It may be possible that, from a specu- lative point of vision, all acts are necessitated. With this, however, jurisprudence, which is a practical science, has nothing to do, There have been, indeed, leading jurists, such as Feuerbach, who have adopt- ed the principle of necessity as a basis, and have invoked the fear of punishment as a counterweight to the temptation to crime; and Mr. Bain, as is elsewhere shown, has ac- Crim. L. Vol. I.—65. cepted the same view. See Wharton & S. Med. Jur. §§ 188, 540. But this, as is well said by a leading German author (Meyer, § 25), takes not only from _ juris- prudence, but from life, its moral dignity, making the former a mere marshalling of mechanisms, and the latter a mere mechanism of neces- sities. A series of interesting papers on insanity will be found in the pro- ceedings of the New York Med.- Legal Soc. N. Y. 1872. 1As to time of insanity, see 10 Enc. Pl. & Pr. p. 1218; 16 Am. & Eng. Ene. Law, 2d ed. p. 621; 12 Cye. 165; 22 Cyc. 1213; 27 Century Dig. col. 2625, § 146; 10 Decen. Dig. p. 2118, § 83; Am. Dig. title “Insane Persons,” § 83. 66 CRIMINAL LAW. [§ 50 tions, the court will set the verdict aside. While the earlier cases lean to the position that such depravation of understand- ing must be general, it is now conceded that it is enough if it is shown to have existed in reference to the particular act.” § 51. —Answer of English judges. To this effect is the answer of the fifteen judges of England to the questions pro- pounded to them by the House of Lords in June, 1843. ‘The jury,” they said, “ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defense on the ground of insanity, it must be clearly proved that at the time of com- mitting the act the party accused was laboring under such a de- fect of reason, from disease of the mind, as not to know the na- ture and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. 21 Inst. 247; Bacon, Abr. Idiot; Co. Litt. 247 a; 1 Russell, Crimes by Greaves, 18; 1 Hawk. P. C. chap. 1, § 3; 4 Bl Com. 24; Collinson, Lunacy 578, 673 (n.) [Eng.] Reg. v. Oxford, 9 Car. & P. 525, 1840; Burrow’s Case, 1 Lewin, C. C. 238, 1823; Reg. v. Goode, 7 Ad. & EL. 536, 67 Hans. Par. Del. 728, 1887; Bowler’s Case, 1 Collinson, Lunacy, 673, note; Hadfield’s Case, 27 How. St. Tr. 1282, 1800; Reg. v. Barton, 3 Cox, C. C. 275, 1848; Rex v. Offord, 5 Car. & P. 168, 1831; Reg. v. Hig- ginson, 1 Car. & K. 129, 1848; Reg. v. Stokes, 3 Car. & K. 185; Reg. v. Layton, 4 Cox, C. C. 149, 1849; Reg. v. Vaughan, 1 Cox, C. C. 80, 1844; [Fed.] United States v. Ridgeway, 31 Fed. 144, 1887; United States v. Shults, 6 McLean, 121, Fed. Cas. No. 16286, 1852. [Ala.] McAllister v. State, 17 Ala. 434, 52 Am. Dec. 180, 1850. [Cal.] People v. Ferris, 55 Cal. 588, 1879. [Conn.] State v. Richards, 39 Conn. 591, 1872. [Mass.] Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, 1843. [Mo.] State v. Redemeier, 8 Mo. App. 1, 1879; 71 Mo. 1738, 36 Am. Rep. 462, 1880. [Neb.] Hart v. State, 14 Neb. 572, 16 N. W. 905, 1883. [N. J.] State v. Spencer, 21 N. J. L. 196, 1847. 1 Y. 467, 11 Am. Rep. 731, 1873; Free- man v. People, 4 Denio, 9, 47 Am. Dec. 216, 1847; People v. O’Connell, 62 How. Pr. 436, 1881; People v. Sprague, 2 Park. Crim. Rep. 483, 1855. [Ohio] State v. Gardiner, Wright (Ohio) 392, 1833. [Pa.] Com. v. Mosler, 4 Pa. 264, 1846; Brown v. Com. 78 Pa. 122, 1875; Com. v. Farkin, 2 Clark (Pa.) 208, 1844. [Tenn.] Dove v. State, 3 Heisk. 348, 1872; Stuart v. People, 1 Baxt. 178, 1867. [Tex.] Clark v. State, 8 Tex. App. 350, 1880; Petti- grew v. State, 12 Tex. App. 225, 1882. [Va.] Vance v. Com. 2 Va. Cas. 132, 1818; De jarnette v. Com. 75 Va. 867, 1819. 1M’Naghten’s Case, Car. &: K. 134, note, 8 Scott, N. R. 595, 10 Clark & F. 200, 1848. See Reg. v. Layton, 4 Cox, C. C. 149, 1850; Reg. v. Barton, 3 Cox, C. C. 275, 1 Ben- nett & H. Lead. Cas. 94, 1849; Reg. v. Davies, 1 Fost. & F. 69, 1858; Watson’s Case and Edmund’s Case, cited in 1 Wharton & S. Med. Jur. § 166. The rule laid down by the English judges, as above stated, has been adopted and followed by some American jurisdictions. See [Fed.] United States v. Clarke, 2 Cranch, [N. Y.] Flanagan v. People, 52 N. C. C, 158, Fed. Cas. No. 14811, 1818; § 52) FITNESS OF OFFENDER TO COMMIT OFFENSE. 67 § 52. —Doctrine in this country. In this country, what- ever may have been the hesitancy as to the enunciation of other propositions to be hereafter stated, there has been none as to this. There has scarcely been a case where the defense of in- sanity has been taken, in which the jury have not been told that if the defendant was unable “to distinguish right from wrong,” or to discern “that he was doing a wrong act,” or was “incapable of knowing what he was about,” or was “deprived of his under- standing and memory,” or was what is wrong as distinguished “incompetent mentally to know from what is right,” he is irre- sponsible.t And it has been further properly held that when. United States v. Shults, 6 McLean, 121, Fed. Cas. No. 16286, 1854, [Cal.] People v. Coffman, 24 Cal. 230, 1864; People v. McDonell, 47 Cal. 134, 1873; People v. Hoin, 62 Cal. 120, 45 Am. Rep. 651, 1882; People v. Ward, 105 Cal. 343, 38 Pac. 945, 1894. [Del.] State v. Windsor, 5 Harr. (Del.) 512, 1851; State v. Brown, Houst. Crim. Rep. (Del.) 539, 1878. [Ill] Dunn v. People, 109 Tll. 635, 4 Am. Crim. Rep. 52, 1884. [Me.] State v. Law- rence, 57 Me. 574, 1870. [Mo.] State v. Huting, 21 Mo. 464, 1855. [Neb.] Wright v. People, 4 Neb. 407, 1876; Hawe v. State, 11 Neb. 537, 38 Am. Rep. 375, 10 N. W. 452, 1881; Hart v. State, 14 Neb. 572, 16 N. W. 905, 1883; Anderson v. State, 25 Neb. 550, 41 N. W. 357, 1889; Thurman v. State, 32 Neb. 224, 49 N. W. 338, 1891; Knights v. State, 58 Neb. 225, 76 Am. St. Rep. 78, 78 N. W. 508, 1899. -[Tex.] Carter v. State, 12 Tex. 500, 62 Am. Dec. 539, 1854; Thomas v. State, 40 Tex. 60, 1874; Webb v. State, 5 Tex. App. 596, 1879; Williams v. State, 7 Tex. App. 168, 1879; Clark v. State, 8 Tex. App. 350, 1880; Pettigrew v. State, 12 Tex. App. 225, 1882; Giebel v. State, 28 Tex. App. 151, 12 S. W. 591, 1889. In other jurisdictions in this country, the English rule is modi- fied so as to require a knowledge of right and wrong with respect to the especial act for the perpetration of which the prosecution is had. See 16 Am. & Eng. Enc. Law, p. 620; also post, § 52, footnote 3. 1See more particularly [Fed.] United States v. Clarke, 2 Cranch, C. C. 158, Fed. Cas. No. 14811, 1824; United States v. Shults, 6 McLean, 121, Fed. Cas. No. 16286, 1852. [Ala] McAllister v. State, 17 Ala. 424, 52 Am. Dec. 180, 1849. [Cal.] People v. Coffman, 24 Cal. 280, 1863. [Ga.] Choice v. State, 31 Ga. 424, 1861; Anderson v. State, 42 Ga. 9, 1871. [Me.] State v. Lawrence, 57 Me. 574, 1869. [Mass.] Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, 1843; Com. v. Heath, 11 Gray, 303, 1858. [Mo.] State v. Huting, 21 Mo. 464, 1855; State v. Erb. 74 Mo. 199, 1881; State v. Kotovsky, 74 Mo. 247, 1881. [N. Y.] Willis v. People, 32 N. Y. 715, 1865; Free- man v. People, 4 Denio, 9, 47 Am. Dec. 216, 1847; People v. Sprague, 2 Park. Crim. Rep. 43, 1855. [Pa.] Com. v. Mosler, 4 Pa. 264, 1846; Com. v. Farkin, 2 Clark (Pa.) 208, 1844. [Va.] Vance v. Com. 2 Va. Cas. 132, 1818. See also cases cited supra, § 51. Right and wrong test.—It is in England that the right and wrong test is applied with the most ex- clusive rigor; and it is in England that attempts at its formal expan- sion have been most stoutly resist- ed. See 1 Wharton & S. Med. Jur. § 119. Yet, in deciding what is the amount of evidence necessary to prove incapacity to determine be- tween right and wrong, the English judges have practically let in con- structions almost as indulgent as those which have led American 68 CRIMINAL LAW. [§ 52 idiocy or semi-idiocy is proved, it is for the prosecution to es- tablish affirmatively a capacity on the part of the defendant to distinguish right from wrong.? The New York Penal Code of 1882 provides as follows: “A person is not excused from criminal liability as an idiot, im- becile, lunatic, or insane person, except upon proof that at the time of committing the alleged criminal act he was laboring under such a defect of reason as either (1) not to know the na- ture and quality of the act he was doing; or (2) not to know that the act was wrong.” It will be observed that this is an affirmation of the doctrine of the English judges above given.® courts to expand the formal defini- tion of insanity. —Married woman having killed her husband immediately after an apparent recovery from a disease (the result of childbirth) which caused a great loss of blood, and ex- hausted the vessels of the brain, and thus weakened its power, and so tended to produce insane de- lusions of the senses, which, while suffering under such disease, she complained of, and which, by her own account, had been renewed at the time of the act of homicide (al- though they were not such as would lead to it); these facts were held by Erle, J., to be evidence from which a jury might properly find that she was not in such a state of mind at the time of the act as to know its nature or be accountable for it. Reg. v. Law, 2 Fost. & F. 836, 1861. —Married woman, fondly attached to her children, and apparently most happy in her family, poisoned two of them with some evidence of deliberation and design, and it was left to the jury by Wightman, J., as circumstances from which insanity could be inferred, that it appeared that there was insanity in her family; and that her demeanor be- fore and after the act, although not wholly irrational, was strangely er- ratic and excited ; and that from recent antecedents, and the presence of certain exciting causes of in- sanity, and her own account of her sensations, the medical men were of opinion that she was laboring under actual cerebral disease, and that she was in a paroxysm of insanity at the time of the act. Reg. v. Vyse, 3 Fost. & F. 247, 1862. 2State v. Richards, 39 Conn. 591, 1872. 8Legal test in this country is mental ability, at time of commis- sion of offense complained of, to dis- tinguish between right and wrong with respect to the offense charged. See [Fed.] United States v. McGlue, 1 Curt. C. C. 1, Fed. Cas. No. 15679, 1851; United States v. Shults, 6 McLean, 121, Fed. Cas. No. 16286, 1854; United States v. Young, 25 Fed. 710, 1885; United States v. Ridgeway, 31 Fed. 144, 1888; United States v. Faulkner, 35 Fed. 730, 1888. [Ala.] Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193, 2 So. 854, 7 Am. Crim. Rep. 266, 1887. [Cal.] People v. Kelley, 7 Cal. App. 554, 95 Pac. 45, 1908. [Del.] State v. Windsor, 5 Harr. (Del.) 512, 1854; State v. Danby, Houst. Crim. Rep. (Del.) 166, 1864; State v. Pratt, Houst. Crim. Rep. (Del.) 249, 1867; State v. Kavanaugh, 4 Penn. (Del.) 131, 53 Atl. 335, 1902; State v. Jack, 4 Penn. (Del.) 470, 58 Atl. 833, 1908. [D. C.] Travers v. Unit- ed States, 6 App. (D. C.) 450, 1895; United States v. Guiteau, 1 Mackey, 498, 10 Fed. 161, 47 Am. Rep. 247, 1882. United States v. Lee, 4 Mackey, 489, 54 Am. Rep. 293, 1886. [Fla.] Davis v. State, 44 Fla. 32, 32 So. 822, 1902. [Ga.] Roberts’ v. State, 3 Ga. 310, 1847; Choice v. State, 31 Ga. 424, 1860; Spann v State, 47 Ga. 553, 1873; Brinkley v. State, 54 Ga, 371, 1877; Lee y. § 53] § 53. “Wrong” means moral wrong. FITNESS OF OFFENDER TO COMMIT OFFENSE. “Wrong,” in the sense in which the term is here used, means moral wrong. A State, 116 Ga. 563, 42 S. E. 759, 1902; Carter v. State, 2 Ga. App 254, 58 S. E. 532, 1907. [IH.] Dunn v. People, 109 Il. 635, 4 Am. Crim. Rep. 52, 1884; Hornish v. People, 142 Il. 620, 18 L.R.A, 237, 82 N. E. 677, 1892. [Ind.] McDougal v. State, 88 Ind. 24, 1882; Goodwin v. State, 96 Ind. 550, 1884; Plake v. State, 121 Ind. 433, 16 ‘Am. St. Rep. 408, 23 N. E. 278, 1890. [Iowa] Fouts v. State, 4 G. Greene, 500, 1854, [Kan.] State v. Nixon, 32 Kan. 205, 4 Pac. 159, 5 Am. Crim. Rep. 307, 1884; State v. O’Neil, 51 Kan. 651, 24 L.R.A. 555, 33 Pae. 287, 1893; State v. Flowers, 58 Kan. 702, 50 Pac. 938, 1897; State v. Arnold, 79 Kan. 533, 100 Pac. 64, 1909. [Ky.] Graham v. Com. 16 B. Mon. 587, 1855; Shannahan v. Com. 8 Bush, 463, 8 Am. Rep. 465, 1871; Montgomery v. Com. 88 Ky. 509, 11 S. W. 475, 1889; Richey v. Com. 6 Ky. L. Rep. 515, 1885; Farris v. State, 8 Ky. L. Rep. 417, 18. W. 729, 1886. [Me.] State v. Knight, 95 Me. 467, 55 L.R.A. 373, 50 Atl. 276, 1901. [Mich.] People v. Durfee, 62 Mich. 487, 29 N. W. 109, 1886. [Minn.] State v. Ship- pey, 10 Minn. 223, Gil. 178, 88 Am. Dec. 70, 1865. [Miss.] Cunningham v. State, 56 Miss. 269, 21 Am. Rep. 360, 1879; Grissom v. State, 62 Miss. 167,. 1884. [Mo.] State v. Schaefer, 116 Mo. 96, 22 S. W. 447, 1893; State v. Wright, 134 Mo. 404, 35 S. W. 1145, 1896; State v. Pal- mer, 161 Mo. 152, 61 S. W. 651, 1901; State v. Paulsgrove, 203 Mo. 193, 101 S. W. 27, 1907; State v. Porter, 213 Mo. 43, 127 Am. St. Rep. 589, 111 S. W. 529, 1908; State v. Hayes, 16 Mo. App. 560, 1885. [Mont.] State v. Keerl, 29 Mont. 508, 101 Am. St. Rep. 579, 75 Pac. 862, 1904. [Neb.] Wright v. People, 4 Neb. 407, 1876; Knights v. State, 58 Neb. 225, 76 Am. St. Rep. 78, 78 N. W. 508, 1899; Schwartz v. State, 65 Nob, 196, 91 N. W. 190, 1902; Bothwell v. State, 71 Neb. 747, 99 N. W. 669, 1904. [N. J.] State v. Spencer, 21 N. J. L. 196, 1846; Mackin v. State, 59 N. J. L. 495, 36 Atl, 1040, 1897, [N. ¥.] Willis v. . People, 32 N. Y. 715, 1865; Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731, 1873; People v. Farmer, 194 N. Y. 251, 87 N. E. 457, 1909; Wagner v. People, 4 Abb. App. Dec. 509, 2 Keyes, 684, 1866; People v. Pine, 2 Barb. 566, 1848; Pienovi’s Case, 3 N. Y. City Hall Rec. 123, 1818; People v. Kleim, 1 Edm. Sel. Cas. 13, 1845; People v. Divine, 1 Edm. Sel. Cas. 594, 1848; Freeman v. People, 4 Denio, 9, 47 Am. Dec. 216, 1847; People v. Waltz, 50 How. Pr. 204, 1874; People v. O’Connell, 62 How. Pr. 436, 1881; People v. Moett, 23 Hun, 60, 1880; People v. Cole- man, 1 N. Y. Crim. Rep. 1, 1881; Walker v. People, 1 N. Y. Crim. Rep. 7, 1881; People v. Walworth, 4 N. Y. Crim. Rep. 355, 1873; People v. Barberi, 12 N. Y. Crim. Rep. 89, 423, 47 N. Y. Supp. 168, 1906; People v. Sprague, 2 Park. Crim. Rep. 48, 1849. [N. C.] State v. Brandon, 53 N. C. (8 Jones, L.) 463, 1862. [Ohio] Loeffner v. State, 10 Ohio St. 598, 1857; State v. Summons, 1 Ohio Dec. Reprint, 416, 1852; State v. Ferrer, 1 Ohio Dec. Reprint, 428, 1852. [Okla.] Maas v. Territory, 10 Okla. 714, 53 L.R.A. 814, 63 Pac. 960, 1901. [Or.] State v. Murray, 11 Or. 413, 5 Pac. 55, 1884. [Pa.] Brown v. Com. 78 Pa. 122, 1875; Taylor v. Com. 109 Pa. 262, 1885; Com. v. Hallowell, 223 Pa. 494, 72 Atl. 845, 1909; Smith’s Case, 6 Am. L. Reg. 257, 1858; Com. v. Freeth, 5 Clark (Pa.) 455, 1858; Com. v. Farkin, 2 Pars. Sel. Eq. Cas. 439, 1844; Com. v. Moore, 2 Pittsb. 502, 1864. [S. C.] State v. Bundy, 24 S. C. 439, 58 Am, Rep. 268, 1885; State v. Coyle, 86 S. C. 81, 138 Am. St. Rep. 1022, 67 S. E. 24, 1910. [Tenn.] Dove v. State, 3 Heisk. 348, 1872. [Tex.] Clark v. State, 8 Tex. App. 350, 1880; Edwards v. State, 38 Tex. Crim. Rep. 386, 39 L.R.A. 262, 48 S. W. 112, 1897; Cannon v. State, 41 Tex. Crim. Rep. 467, 56 Ss. W. 351, 1900, Nelson v. State, 43 Tex. Crim. Rep. 553, 67 8S. W. 320, 1902; Kelley v. State, 51 Tex. Crim. Rep. 151, 101 8. W. 230, 1907; 70 CRIMINAL LAW. (§ 53 man may want the capacity to distinguish between the various shades of illegality which the law assigns to a particular act. This is no defense. If, however, he was “laboring under such a defect of reason from disease Thomas v. State, 57 Tex. Crim. Rep. 452, 116 S. W. 600, 1909; Moss v. State, 57 Tex. Crim. Rep. 620, 136 Am. St. Rep. 1001, 124 S. W. 647, 1910. [Utah] State v. Brown, 36 Utah, 46, 24 L.R.A.(N.S.) 545, 102 Pac. 641, 1909, [Wash.] State v. Craig, 52 Wash. 66, 100 Pac. 167, 1909. [W. Va.] Gruber v. State, 3 W. Va. 699, 1869. [Wis.] Oborn v. State, 143 Wis, 249, 31 L.R.A.(N.S.) 966, 126 N. W. 7387, 1910. Defense of insanity has exclusive reference to the time of the act charged. United States v. Chisholm, 153 Fed. 808, 1907. —“Defect of reason,” used in the New York Penal Code, § 21, such as to relieve one accused of criminal act for liability therefor, means a disease of the mind. People v. Car- lin, 194 N. Y. 448, 87 N. E. 805, 1909. Delusion or mental weakness which renders mind incapable of knowing character of act relieves from criminal liability; State v. Arnold, 79 Kan. 533, 100 Pac. 64, 1909. Emotional insanity, which is an unbridled passion lasting just long enough to enable the act complained of to be done, and then subsides, does not relieve the accused of ac- countability. People v. Finley, 38 Mich. 482, 1878; Com. v. Wireback, 190 Pa. 138, 70 Am. St. Rep. 627, 42 Atl. 542, 1899. “Insanity” means abnormal con- dition of the mind, preventing the accused from distinguishing between right and wrong as to the particular act charged. Oborn v. State, 143 Wis. 249, 31 L.R.A. (N.S.) 966, 126 N. W. 737, 1910. —Epilepsy, proof of, does not necessarily establish insanity reliev- ing from responsibility for criminal act. Oborn v. State, 148 Wis. 249, 31 L.R.A.(N.S.) 966, 126 N. W. 737, 1910. Insanity caused by blow does not of the mind as not to know the relieve from responsibility for crim- inal act, when. State v. Coyle, 86 S. C. 81, 188 Am. St. Rep. 1022, 67 8. E. 24, 1910. Insanity produced by cocaine or morphine in conjunction with the recent use of intoxicating liquor cannot be regarded as solely pro- duced by the use of such _ liquor, within a statute relating to insanity caused by intoxicating liquors as a defense. Edwards v. State, 38 Tex. Crim. Rep. 386, 39 L.R.A. 262, 43 S. W. 112, 1897. Intermittent insanity is no excuse for crime, unless accused was in- capable at time of act of knowing whether it was right or wrong. Carter v. State, 2 Ga. App. 254, 58 S. E. 532, 1907. “Mental unsoundness” exempting from responsibility for criminal act must be such as to render party unable to distinguish right from wrong as to the particular crime charged. Com. v. Hallowell, 223 Pa. 494, 72 Atl. 845, 1909. Morphine fiend is relieved from re- sponsibility for crime when his mind is incapable of rational action. Moss v. State, 57 Tex. Crim. Rep. 620, 136 Am. St. Rep. 1001, 124 S. W. 647, 1910. Partial insanity excuses homicide, when. State v. Paulsgrove, 203 Mo. 193, 101 S. W. 27, 1907. Temporary insanity from use of drugs, but not from the voluntary use of intoxicating liquors alone de- stroys criminal liability. Cannon v. State, 41 Tex. Crim. Rep. 467, 56 8. W. 351, 1900. Weakness of mind merely is no defense to a prosecution for crime, where defendant knows the nature and quality of the act done. Nelson v. State, 43 Tex. Crim. Rep. 553, 67 8. W. 320, 1902. See also authorities cited supra, § 51. As to insanity after commission of criminal act. See 22 Cyc. 1213. § 54] FITNESS OF OFFENDER TO COMMIT OFFENSE. 71 nature and quality of the act he was doing, or if he did know it, that he did not know he was doing wrong,” he is held to be irresponsible on the ground of insanity.’ And whatever we may think of the second of these alternatives, the first (that in italics) is broad énough to sustain a verdict of insanity in all cases in which the defendant’s mental condition was such as to preclude him from having knowledge of the nature and charac- ter of the act.? 2. Insane delusion.} § 54. Delusion excuses act done bona fide and with- out malice under its effect. The answer of the English judges on the special topic of delusion is as follows: ‘The an- swer must, of course, depend on the nature of the delusion: but making the same assumption as we did before, namely, that he labors under such partial delusion only, and is not in other re- spects insane, we think he must be considered in the same situ- ation as to responsibility as if the facts with respect to which the delusion exists were real.” 1Search Note: See 14 Century Dig. col. 66, § 56; 6 Decen. Dig. p. 189, § 48; Am. Dig. title “Criminal law,” § 48; 16 Am. & Eng. Enc. Law, p. 619; 22 Cye. 1212. See Sir J. F. Stephen’s testi- mony before House of Commons, quoted in Wharton, Homicide, § 573. [Fed.] United States v. Faulkner, 35 Fed. 730, 10 Crim. L. Mag. 885. [Ala.] Parsons v. State, 81 Ala. 577, 60 Am. Rep. 198, 2 So. 854, 7 Am. Crim. Rep. 266, 9 Crim. L. Mag. 812, 1887. [Neb.] Anderson v. State, 25 Neb. 550, 41 N. W. 357, 1889. As te general legal meaning of the word “wrong,” see 8 Words & Phrases, 7547, 7838. 2See 2 Stephen, History Crim. Law 166. 1Search Note: 14 Century Dig. col. 668, § 59, 6 Decen. Dig. p. 190, § 49;\Am. Dig. title “Criminal Law,” § 49; 16 Am. & Eng. Enc. Law, 2d ed. p. 653; 4 Words & Phrases, $644; notes in 63 Am. St. Rep. 72; 37 L.R.A. 261, and 5 Am. Crim. Rep. 307, 317. For example: if under the in- Definition—An insane delusion has been defined to be an incorrigible belief in the existence of facts which are impossible in the nature of things, or impossible under the circumstances of the particular case. State v. Lewis, 20 Nev. 333, 22 Pac. 241, 8 Am. Crim. Rep. 574, 1889. See 4 Words & Phrases, 3644, In other words, an insane de- lusion consists in the belief of a thing as a fact which rational per- sons do not or would not believe. [Tl] Schneider v. Manning, 121 Ill. 376, 12 N. E, 267, 1887; Nicewander v. Nicewander, 151 Ill. 156, 37 N. E. 698, 1894; Huggins v. Drury, 192 Til. 528, 61 N. EH. 652, 1901; [N. Y-.] Morse v. Scott, 4 Dem. 507, 1885. Bull v. Wheeler, 6 Dem. 123, 1888; Colhoun v. Jones, 2 Redf. 34, 1870; Re Tracy, 27 N. Y. Week. Dig. 280, 11 N. Y. S. R, 103, 1887. No defense in a prosecution for crime, when. See authorities, supra, § 52, footnote 3. 2Insane delusion is an excuse for crime when it completely possessed the accused, although he may have 72 CRIMINAL LAW. [g 54 fluence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defense, he would be exempt from punish- ment.® If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to pun- ishment.”* To the same effect speaks Chief Justice Shaw; ° “Monomania may operate as an excuse for a criminal act,” when “‘the delusion is such that the person under its influence has a real and firm belief of some fact, not true in itself, but which, if it were true, would excuse his act; as where the belief is that the party killed had an immediate design upon his life, and un- der that belief the insane man kills in supposed self-defense. A common instance is where he fully believes that the act he is doing is done by the immediate command of God, and he acts under the delusive, but sincere, belief that what he is doing is by the command of a superior power which supersedes all hu- man laws and the laws of nature. been perfectly sane on other sub- jects. In such case he is to be judged as though the facts with re- spect to which the delusion existed were real, and, if real, if they would not have constituted any defense, the delusion cannot amount to a de- fense. People v. Hubert, 119 Cal. 216, 68 Am. St. Rep. 72, 51 Pac. 329, 1897. Delusion overcoming will is a good defense to a prosecution for a crimi- nal act. Flanagan v. State, 103 Ga. 619, 30 S. E. 500, 11 Am. Crim. Rep. 525, 1898; Taylor v. State, 105 Ga. 746, 31 S. E. 764, 1898. Mere belief that act is justified is not such a delusion as in law re- lieves the party accused from crimi- nal responsibility for the act. Com. v. Wireback, 190 Pa. 188, 70 Am. St. Rep. 625, 42 Atl. 542, 1899. Monomania leading to crime, the subject of the mania is immaterial, as affecting defendant’s accounta- bility. Stevens v. State, 31 Ind. 485, 99 Am. Dec. 634, 1869. Partial insanity is a defense to a charge of crime but only in those cages where it deprives the accused 26 of his reason in regard to the par- ticular act charged. [Cal.] People v. Willard, 150 Cal. 548, 89 Pac. 124, 1907. [Mo.] State v. Hunting, 21 Mo. 464, 1855. [Ohio.] State v. Summons, 1 Ohio Dec. Reprint, 416, 1852. [Pa.] Com. v. Winnemore, 1 Brewst. (Pa.) 356, 1867. Transitory mania or temporary insanity as a defense in prosecution for crime. See People v. Ford, 138 Cal. 140, 70 Pac. 1075, 1902. 8 Smith v. State, 55 Ark. 259, 18 S. W. 237, 1891; Fain v. Com. 78 Ky. 183, 39 Am. Rep. 213, 1879. 4People v. Taylor, 188 N. Y. 398, 34 N, EH. 275, 1893. 5 Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, 1844. See [Del.] State v. Danby, Houst. Crim. Kep. (Del.) 166, 1864. [Miss.] Grisson v. State, 62 Miss. 167, 1884; Ford v. State, 73 Miss. 734, 35 L.R.A. 117, 19 So. 665, 1896. [Pa.] Com. v.. Winnemore, 1 Brewst. (Pa.) 356, 1867; Com. v. Freeth, 5 Clark (Pa.) 455, 1858. 6 That this covers Hadfield’s Case, see 2 Stephen, History Crim. Law, 160. § 55) FITNESS OF OFFENDER TO COMMIT OFFENSE. 73 § 55. Rule applies to all bona fide erroneous non- negligent convictions. So far as the law thus stated goes it has been recognized as authoritative in this country.’ Even where there is no pretense of insanity, it has been held that if a man, though in no danger of serious bodily harm, through fear, alarm, or cowardice, kill another under the impression that great bodily injury is about to be inflicted on him, it is neither man- slaughter nor murder, but self-defense; * and though this prop- osition is too broadly stated, as is remarked by Bronson, J., when. commenting on it in a later case in New York,® and should be qualified so as to make it necessary that there should be facts. and circumstances existing which would lead the jury to -be- lieve that the defendant had reasonable ground (in proportion to his own lights) for his belief, yet with this qualification it. is now generally received.* 1Contradiction of authorities.— The supposed contradictions of the authorities on this point have arisen from an attempt to reduce into an inflexible code opinions which, while relatively true in their particular connection, were not meant for gen- eral application. Thus, for instance, when a defendant in whom there is no pretense of mania or homicidal insanity claims to be exempt from punishment on the ground of in- capacity to distinguish right from wrong, the court very properly tells the jury that the question for them to determine is whether he labors under such incapacity or not. The error has been to seize such an ex- pression as this as an arbitrary ele- mentary dogma, and to insist on its application to all other cases. Or, take the converse, and suppose the defense is merely homicidal insanity. In such a case it would be proper to tell the jury that unless they be- lieve the homicidal impulse to have been uncontrollable, they must con- vict; and yet nothing would be more unjust than to make this proposi- tion, true in itself, a general rule to bear on such cases as idiocy. It is by confining the decisions of the courts to the particular state of facts from which they have been elicited that we can extract from the mass of apparently conflicting And, indeed, after the general,, dicta the propositions given in the text. 2Infra, § 620; Grainger v. State, 5 Yerg. 459, 26 Am. Dec. 278, 1833. Fear must be founded on reason- able grounds; the law will not ex- cuse the criminal act of the defend- ant, though under the influence of fear, if his fear was baseless, and the phantoms of the imagination. Morgan v. State, 3 Sneed, 475, 1856; Rippy v. State, 2 Head, 217, 1858.. See [N. Y.] Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286, 1849. [Tenn.] Copeland v. State, 7 Humph.. 479, 1846; Williams v. State, 3 Heisk. 376, 393, 1872. [Vt.] State v. Doherty, 72 Vt. 381, 82 Am. St. Rep. 951, 48 Atl. 658, 1900. [W. Va.] State v. Cain, 20 W. Va... 679, 1882. See also notes in 51 Am. Dec.. 293; 85 Am. Dec. 239; and 3 L.R.A. (N.S.) 539. —Mere belief in necessity not suf- ficient to excuse from responsibility. [Fla.] Gladden v. State, 12 Fla. 562, 1869. [Iowa] State v. Thompson, 9 Towa, 188, 74 Am. Dec. 342, 1859. [Minn.] State v. Shippey, 10 Minn. 223, Gil. 178, 88 Am. Dec. 70, 1865. See also authorities cited infra, § 57, footnote. 1. 3See citation infra, § 620, note. 4See infra, §§ 619 et seg.> Wharton, Homicide, § 490; Cunning- 74 CRIMINAL LAW. [§ 55 though tardy, acquiescence in Selfridge’s Case, where the same view was taken as early as 1805 by Chief Justice Parker, of Massachusetts, and after the almost literal incorporation of the leading distinctions of this case into the Revised Statutes of New York, as well as into the judicial system of most of the states, the point must be considered as finally at rest. Perhaps the doctrine, as laid down originally in Selfridge’s Case, would have met with a much earlier acquiescence had not the sup- posed political bias of the court in that extraordinary trial, and the remarkable laxity shown in the framing of the bill of in- dictment and in the adjustment of bail, led to a deep-seated professional prejudice, which reached even such parts of the charge as were sound. With these cases may be classed that of Levett,® who was in bed and asleep in his house when his maid- servant, who had hired A, the deceased, to help her do the work, thought, as she was going to let A out about midnight, that she heard thieves breaking open the door, upon which she ran up- stairs to the defendant, her master, and informed him thereof. Suddenly aroused, he sprang from his bed and ran down stairs with his sword drawn, the deceased hiding herself in the buttery lest she should be discovered. The defendant’s wife, observing some person there, and not knowing her, but conceiving her to be a thief, cried out, “Here are they who would undo us;” and the defendant, in the paroxysm of the moment, dashed into the buttery, thrust his sword at the deceased and killed her. The defendant was acquitted under the express instructions of the court, and the case has remained unquestioned for 200 years, and in New York and Pennsylvania in particular, after very careful examination, has been solemnly reaffirmed.” It is true that it has been held inadmissible to prove that the defendant was of weak intellect, particularly nervous, and inclined to fright. But if such nervous debility amounts to insanity, it is certainly a defense; and whether the proof reaches this point the ham v. State, 56 Miss. 269, 31 Am. 7See cases cited infra, §§ 619, et Rep. 360, 1879. seq., note. 5 Levett’s Case, Cro. Car. 538, 8[Mo.] State v. Shoultz, 25 Mo. 1640; Hale, P. C. 42, 474. Infra, § 128, 1857. [N. Y.] Patterson v. Peo- 623. ple, 46 Barb. 625, 1865. [Pa.] Jacobs 6See, for a fuller discussion of v. Com. 121 Pa. 586, 6 Am. St. Rep. this case, infra, §§ 595, 626. 802, 15 Atl. 465, 1888. § 57] FITNESS OF OFFENDER TO COMMIT OFFENSE. 15 question is for the jury, under the direction of the court, to de- cide.® § 56. Actual danger not necessary. In none of the cases which have just been noticed is the actual existence of dan- ger an essential ingredient, and certainly, as the intentions of an assailant are incapable of positive ascertainment, such a dan- ger can never be absolutely shown to exist. It is true that in cases to be hereafter noticed,’ dicta have been thrown out to the effect that the danger must be such as to alarm a reasonable man; but whenever the requisite state of facts has been pre- sented, courts have not hesitated to say that the danger mvst be estimated, not by the jury’s standard, but by that of the de- fendant himself. Thus, an enlightened and learned judge in Pennsylvania, one who would be among the last to weaken any of the sanctions of human life, directed the jury to take into consideration “the relative characters, as individuals,” of the deceased and the defendant, and, in determining whether the danger really was imminent or not, to inquire “whether the de- ceased was bold, strong, and of a violent and vindictive charac- ter, and the defendant much weaker, and of a timid disposi- tion.” ? And though it may not be admissible to prove, by way of defense, that the deceased was of a barbarous and vindictive nature and character, unless this tend to explain the defend- ant’s conduct under an apparently sudden and deadly attack,? yet threats uttered by the deceased, and expressions of hostile feeling of which the defendant was advised, may always be re- ceived as explaining the excited condition of the defendant’s mind.* § 57. Delusion must be mental. The principle which may be inferred from the cases is that, if by an insane delusion or depravation of the reasoning faculty, the defendant insanely believes, either that an imagined evil is so intolerable as to make 8 Wharton, Crim. Ev. § 68; 7 Enc. and York’s Trial, 7 Law. Rep. 497, Ev. p. 480. 507, 1845. See also cases cited infra, § 620. Brae Oe 8 Wharton, Crim. Ev. § 69. See 6 2 Infra, § 622; Wharton, Crim. Ev. fyo Ey. pp. 659, 743, 770; 1 Bien §§ 69, 757. See Com. v. Barnacle, Supp. Rae ae Ey. 601, 609, 612. 134 Mass. 216, 45 Am. Rep. 319, 4¢Com. v. Wilson, 1 Gray, 337, 1883, distinguishing Com. v. Hilliard, 1854, See infra, § 620; Wharton, 2 Gray, 294, 1854; Com. v. Mead, 12 Crim. Ev. § 757; 6 Ene. Ev. pp. 707, Gray, 167, 71 Am. Dec. 741, 1858; 783. 76 CRIMINAL LAW. [§ 57 life-taking necessary or justifiable in order to avert it, or that, while the evil is of a lesser grade, life-taking is an appropriate and just way of getting rid of it, he is entitled to such a verdict as will transfer him from the category of sane to insane crimi-' nals. But the delusion must be mental, not moral.® 1See Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62, 1859, where the position in the text is controverted at large. Danger being neither real nor ur- gent, to render a homicide excusable or justifiable within the meaning of the law, there must, at the least, be some attempt to execute the appre- hended design; or there must be reasonable ground for the apprehen- sion that such design will be exe- cuted, and the danger of its accom- plishment imminent. Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62, 1859; State v. Scott, 26 N. C. (4 Tred. L.) 409, 42 Am. Dec. 148, 1844. A party may have a lively appre- hension that his life is in danger, and believe that the ground of his apprehension is just and reasonable; but if he acts upon the same, and takes the life of a human being, he does so at his peril. He is not the final judge, whatever his apprehen- sion or belief may have been, as to the reasonableness of the grounds upon which he acted. That is a question which the jury alone are to determine. Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62, 1859. 2 Reg. v. Burton, 3 Fost. & F. 772, 1862; Reg. v. Townley, 3 Fost. & F. 839, 1862; Willis v. People, 5 Park. Crim. Rep. 621, 1860. Insane delusion as to the value or nature of human life will have this effect, even though the party himself knows when committing the act that he is doing wrong, and is violating the laws of the land. This is illustrated by Lord Erskine in a well-known case: “Let me suppose,” he said, “the character of an insane delusion consisted in the belief that some given person was any brute animal, or an inanimate being (and such cases have existed), and that upon the trial of such uw lunatic for murder, you, being on your oaths, were convinced, upon the uncontra- dicted evidence of one hundred per- sons, that he believed the man he had destroyed to have been a pot- ter’s vessel; that it was quite impos- sible to doubt that fact, although to other intents and purposes he was sane,—answering, reasoning, acting as men not in any manner tainted with insanity converse and reason and conduct themselves. Suppose, further, that he believed the man whom he destroyed, but whom he destroyed as a potter’s vessel, to be the property of another, and that he had malice against such supposed person, and that he meant to injure him, knowing the act he was doing to be malicious and injurious; and that, in short, he had full knowl- edge of all principles of good and evil; yet would it be possible to con- vict such a person of murder, if, from the influence of the disease, he was ignorant of the relation in which he stood to the man he had destroyed, and was utterly uncon- scious that he had struck at the life of a human being” Winslow, Plea of Insanity, 6. Again, in a case which has more than once occurred within the walls of a lunatic asylum, a man fancies himself to be the Grand Lama or Alexander the Great, and supposes that his neighbor is brought before him for an invasion of his sovereign- ty, and he cuts off his head or throt- tles him. He knows he is doing wrong; perhaps, from a sense of guilt, he conceals the body; he may have a clear perception of the legal consequences of his act. In such a case, however, criminal responsibil- ity, in the full sense of the term, does not exist. It was in conform- ity with this view, in a case where it was proved that the defendant had taken the life of another under the notion that he was set about with a conspiracy to subject him to imprisonment and death, that Lord § 58] FITNESS OF OFFENDER TO COMMIT OFTENSE. 17 § 58. Partial insanity no defense as to crime not its product. Partial insanity, however, is no defense when the crime was not its immediate product. Tf the defendant was sane as to the crime, but insane on other topics, the insanity in the latter respect will not save him.’ The crime must have been Lyndhurst told the jury that they might “acquit the prisoner on the ground of insanity, if he did not know, when he committed the act, what the effect of it was with refer- ence to the crime of murder.” What, therefore, he in fact decided, was that a man who, under an insane delusion, shoots another, is irre- sponsible when the act is the pro- duct of the delusion, Such, indeed, on general reasoning, must be held to be the law in this country, and such will it be held to be when any particular case arises which requires its application. Ibid. In England this view has been recognized in several cases, notwith- standing the reluctance of the courts in that country to enlarge the bound- aries of insane irresponsibility. Thus, on the trial of Hadfield, who could distinguish between right and wrong, but who was under a delu- sion that it was his duty to offer himself as a sacrifice for his fellow- men, and that his shortest way of doing so was to kill the King, which he knew to be morally wrong, Lord Kenyon, on these facts being made out, advised a withdrawal of the prosecution. The same course was followed by Chief Justice Tindal in M’Naughten’s Case, when, on a trial for shooting at Mr. Drummond, the private secretary of Sir Robert Peel, a similar delusion was proved. See also Reg. v. Brixey and Reg. v. Touchett, cited in 1 Bennett & Heard’s Leading Cases, 99, 100. It has also been held that on an indict- ment for maliciously setting fire to a building, in order to justify a jury in acquitting a prisoner on the ground of insanity, “they must be- lieve that he did not know right from wrong; but if they find that the prisoner, when he did the act, was in such a state of mind that he was not conscious that the effect of ¢¢ would be to injure any other per- son, this will amount to a general verdict of not guilty.” Reg. v. Da- vies, 1 Fost. & F. 69, 1858—Cromp- ton. In the ecclesiastical courts the ex- istence of delusions or hallucination on material points has frequently been held to so far constitute in- sanity as to pro tanto destroy tes- tamentary capacity. Dew v. Clark, 1 Addams, Eccl. Rep. 279, 1822; Frere v. Peacocke, 1 Rob. Eccl. Rep. 442, 1846; 1 Wharton, & S. Med. Jur. §§ 34-60. In this country the legitimacy of such a defense in criminal cases has been in several instances specifically recognized. [Fed.] United States v. Holmes, 1 Cliff. 98, Fed. Cas. No. 15,382, 1858; Guiteau’s Case, 10 Fed. 161, 1882. [Ala.] Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193, 2 So. ‘854, 7 Am. Crim. Rep. 266, 1887. [Conn.] Andersen v. State, 43 Conn. 514, 21 Am. Rep. 669, 1876. [Del.] State v. Windsor, 5 Harr. (Del.) 512, 1847. [Ga.] Roberts v. State, 3 Ga. 310, 1847; Flanagan v. State, 103 Ga. 619, 30 S. E. 500, 11 Am. Crim. Rep. 525, 1898. [Iowa] Fouts v. State, 4 G. Greene, 500, 1854. [Me.] State v. Lawrence, 57 Me. 574, 1868. [Mass.] Com v. Rogers, 7 Met. 500, 41 Am. Dec. 458, 1843. [Miss.] Bovard v. State, 30 Miss. 609, 1855; Cunningham y. State, 56 Miss. 269, 31 Am. Rep. 360, 1879. [Nev.] State v. Lewis, 20 Nev. 333, 22 Pac. 241, 8 Am. Crim. Rep. 574, 1888. [N. Y.] Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731, 1873; Peo- ple v. Pine, 2 Barb. 566, 1849. [Pa.] Com. v. Freth, 3 Phila. 105, 1849. See also, 1 Wharton & S. Med. Jur. § 134 and see notes in 63 Am. St. Rep. 104, and 37 L.R.A. 266. 1[Fed.] United States v. Young, 25 Fed. 710, 7 Crim. L. Mag. 729, 1885. [Ala.] Boswell v. State, 63 Ala, 307, 35 Am. Rep. 20, 1879. [Cal.] People v. McDonell, 47 Cal. 78 CRIMINAL LAW. [§ 58 the result of a delusion. A delusion, therefore, that arises not. from an irrepressible and absolute chimera, but from imper- fect information or imperfect reasoning which care and dili- gence could correct, does not excuse crime committed under its. influence. It is consequently admissible for the prosecution to show that the delusion was the result of logical processes which, though prejudiced, were not abnormal.’ But it does not follow from this that an insane delusion on a matter not directly at issue may not be part of a chain of evidence from which gen- eral insanity may be inferred.® § 59. Delusion, to exculpate, must be non-negligent. Nor should it be forgotten that a delusion, to be a defense to an indictment for crime, must be non-negligent. When there is rea- son sufficient to correct a delusion, then a person continuing to nourish it, when there is opportunity given him for such cor- rection, is responsible for the consequences.? 3. Irresistible impulse. § 60. “Irresistible impulse,” to be distinguished from. “moral insanity” and from “passion.” 134, 1878. [Ga.] Spann v. State, 47 Ga. 553, 1873. [Iowa] State v. Ged- dis, 42 Iowa, 264, 1876; State v. Mewherter, 46 Iowa, 88, 1877. [Me.] State v. Lawrence, 57 Me. 574, 1869. [Minn.] State v. Gut, 13 Minn. 341, Gil. 315, 1867. [Miss.] Bovard v. State, 30 Miss. 600, 1860. [Mo.] State v. Simms, 71 Mo. 538, 1880. [Neb.] Hawe v. State, 11 Neb. 537, 38 Am. Rep. 375, 10 N. W. 452, 1881. [N. Y.] Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731, 1873; Sindram v. People, 88 N. Y. 196, 1882. [Ohio.1 Blackburn v. State, 23 Ohio St. 146, 1872. [Pa.] Com. v. Mosler, 4 Pa. 264, 1846. [Tex.] Webb v. State, 9 Tex. App. 490, 1880. Sir J. F. Stephen takes the same ground in Crim, Law, art. 27. See also note in 35 Am. Rep. 32-40. Contra, Guetig v. State, 66 Ind. 94, 32 Am. Rep. 99, 1879; Cunning- ham v. State, 56 Miss. 269, 31 Am. Rep. 360, 1879. 2State v. Pike. 49 N. H. 399, 6 Am. Rep. 533, 1849. In order to clear the When an insane delusion is set: up as a defense, it is admissible for the prosecution to offer evidence to- prove that the delusion was sane, a. e@., that it was an opinion that or- dinary reasoning might have pro- duced. State v. Pike, 49 N. H. 399,. 6 Am. Rep. 533, 1849. See 1 Whar- ton & S. Med. Jur. § 144. 8See 2 Stephen, History Crim. Law, 162. 1See this argued at large, 1 Wharton & S. Med. Jur. § 187; and see infra, § 623. 1Search Note: 14 Century Dig.. col. 670, § 62, 6 Decen. Dig. p. 190, § 50, title “Criminal Law;” 16 Am.. & Eng. Enc. Law, 2d ed. p. 564; 4 Words & Phrases, 3774. Irresistible impulse is not a de- fense when the accused at the time: of committing the offense was ca- pable of distinguishing right from. wrong in connection with the offense charged. [Cal.] People v. Hoin, 62° Cal. 120, 45 Am. Rep. 651, 1882; People v. Hubert, 119 Cal. 216, 6%. § 60) FITNESS OF OFFENDER TO COMMIT OFFENSE. 7? question now before us from ambiguities, it is proper to re- mark: (a) “Trrepressible impulse” is not “moral insanity,” suppos- ing “moral insanity” to consist of insanity of the moral system, coexisting with mental sanity. “Moral insanity,” as thus de- fined, has no support, as will hereafter be seen,” either in psy- chology or law. (b) Nor is “irresistible impulse” convertible with passionate ® Am, St. Rep. 72, 51 Pac. 329, 1897. [Del.] State v. Windsor, 5 Harr. (Del.) 512, 1856. [Ill.] Hopps v. Peo- ple, 31 Ill. 385,83 Am. Dec. 231, 1863; Dunn v. People, 109 Ill. 635, 4 Am. Crim. Rep. 52, 1884. [Iowa] State v. Mewherter, 46 Iowa, 88, 1877, [Minn.] State v. Scott, 41 Minn. 365, 43 N. W. 62, 1889. [Miss.] Cunning- ham v. State, 56 Miss. 269, 21 Am. Rep. 360, 1879. [Mo.] State v. Mil- Jer, 111 Mo. 542, 20 S. W. 243, 1892; State v. Berry, 179 Mo. 377, 78 S. W. 611, 1904. [N. J.] Genz v. State, 59 N. J. L, 488, 59 Am. St. Rep. 619, 37 Atl. 69, 1897; Mackin v. State, 59 N. J. L. 495, 36 Atl. 1040, 1897, [N. Y.] People v. Carpenter, 102 N. Y. 288, 6 N. E. 584, 1886; People v. Taylor, 188 N. Y. 398, 34 N. E. 275, 1893; Macfarland’s Trial, 8 Abb. Pr. N. 8. 57, 1870; People v. Waltz, 50 How. Pr. 204, 1874. [Okla.] Turner v. Territory, 15 Okla. 557, 82 Pac. 650, 1905. [Pa.] Com. v. Freeth, 5 Clark (Pa.) 455, 1858. [S. C.] State vy. Alexander, 30 8. C. 74, 14 Am. St. Rep. 879, 8 S. E. 440, 1889. [Tenn.] Wilcox v. State, 94 Tenn. 106, 28 S. W. 312, 1894. [W. Va.] State v. Harrison, 36 W. Va. 729, 18 L.R.A. 224, 15 S. E. 982, 9 Am. Crim. Rep. 626, 1892. Contra, Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193, 2 So. 854, 7 Am. Crim. Rep. 266, 1887; and Plake v. State, 121 Ind. 433, 16 Am. St. Rep. 408, 23 N. E. 273, 1890. —Capacity to distinguish right from wrong, without power of choos- ing between them, is not recognized in law. Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731, 1873; People v. Coleman, 1 N. Y. Crim. Rep. 1, 1881; People v. Walworth, 4 N. Y. Crim. Rep. 355, 1873. —Where mental power is obliter- ated through overwhelming violence of mental disease, and the person’s mental powers are so deficient that he has no will, he is not liable to punishment for his criminal acts. State v. Ferrer, 1 Ohio Dec. Reprint, 428, 1852; Com. v. Winnemore, t Brewst. (Pa.) 356, 1867. Insanity with capacity to distin- guish between right and wrong, but without power to abstain from it, is not recognized in law. Oborn v. State, 143 Wis. 249, 31 L.R.A.(N.S.) 966, 126 N. W. 737, 1910. Irresistible impulse is not of itself a defense to a charge of crime. [Cal.] People v. Owens, 123 Cal. 482, 56 Pac. 251, 1899. [Fla.] Davis v. State, 44 Fla. 32, 32 So. 822, 1902. [Ind.] Sanders v. State, 94 Ind. 147, 1884. [La.] State v. Lyons, 113 La. 959, 37 So. 890, 1904. [Tex.] Cannon v. State, 41 Tex. Crim. Rep. 467, 56 S. W. 351, 1900; Thomas v. State, 55 Tex. Crim. Rep. 293, 116 S. W. 600, 1909. [Wis.] Oborn v. State, 143 Wis. 249, 31 L.R.A.(N.S.) 966, 126 N. W. 787, 1910. Irresistible impulse coexistent with mental sanity is without sup- port either in psychology or law. State v. Lyons, 118 La. 959, 37 So. 890, 1904. 2Infra, § 63. See this discussed in Wharton & S. Med. Jur. § 137. 3 Ungovernable passion is not in- sanity, and does not relieve from criminal responsibility. [Cal.] Peo- ple v. Leary, 105 Cal. 486, 39 Pac. 24, 1895. [Ind.] Sanders v. State, 94 Ind. 147, 1884; Goodwin v. State, 96 Ind. 550, 1884. [Iowa] State v. Felter, 25 Iowa, 67, 1868; State v. Stickley, 41 Iowa, 232, 1875; State v. Mewherter, 46 Iowa, 88, 1877; 80 CRIMINAL LAW. [§ 60 propensity or jealousy, no matter how strong, in persons not in- sane.? § 61. Insane irresistible impulse a defenss. In other words, the “irresistible impulse” of the lunatic, which confers irresponsibility, is essentially distinct from the passion, how- ever violent, of the sane, which does not confer irresponsibility.’ [Ky.] Fitzpatrick v. Com. 81 Ky. 357, 1883. [Pa.] Com. v. Lynch, 3 Pittsb. 412, 1872. —Although it drives reason from its seat for the time being, and urges the accused on with an ir- resistible force for the time being. State v. Felter, 25 Iowa, 67, 1868. —Even though mentally unsound to some extent, through excessive use of intoxicating liquors, and for that reason more liable to give way to passion than a man _ ordinarily reasonable. People v. Leary, 105 Cal. 486, 39 Pac. 24, 1895. 4[Ind.] Guetig v. State, 66 Ind. 94, 32 Am. Rep. 99, 1879. [Iowa] State v. Stickley, 41 Iowa, 232, 1875. [N. H.] State v. Pike, 49 N. H. 399, 6 Am. Rep. 533, 1849. [N. Y.] Free- man v. People, 4 Denio, 5, 47 Am. Dee. 216, 1847. See 1 Wharton & S. Med. Jur. 144, 1Williams v. State, 50 Ark. 511, 9 8. W. 5, 1888. See 1 Wharton & S. Med. Jur. § 144; Com. v. Rogers, T Met. 500, 41 Am. Dec. 458, 1843; Sir J. F. Stephen’s Eng. Crim. Law, p. 91, and Sir J. F. Stephen’s Digest, art. 27; Opinion of Chief Justice Gibson, of Pennsylvania Coin. v. Mosler, 4 Pa. 266, 1846. This was affirmed in Coyle v. Com. 100 Pa. 573, 45 Am. Rep. 397, 1882. See also authorities cited supra, § 60, footnote 3. To the same effect, see People v. Sprague, 2 Park. Crim. Rep. 48, 1855; and rulings by Judge Ellis Lewis, cited in Lewis, Crim. Law, 404; by Judge Edmunds (2 Am. Jour. of Ins.); by Judge Whiting (Freeman’s Trial—Pamph.); and by the Supreme Court of Georgia, Rob- erts v. State, 3 Ga. 310, 1847. Irresistible impulse—In 1862, the text with the cases given in it was cited with approval by the supreme court of Kentucky; and while irre- sistible impulse, as a distinct line of defense, was recognized, it was held that, to sustain it, “it must be known to exist in such violence as to render it impossible for the party to do otherwise than yield to its promptings.” Scott v. Com. 4 Met. (Ky.) 227, 88 Am. Dec. 461, 1863. See also Hopps v. People, 31 III. 385, 83 Am. Dec. 231, 1862; Smith v. Com. 1 Duv. 224, 1864; Kriel v. Com. 5 Bush, 362, 1869. —Illinois rule. See Hopps v. Peo- ple, 31 Ill. 385, 88 Am. Dec. 231, 1862. —Indiana rule. See Stevens v. State, 31 Ind. 485, 99 Am. Dec. 634, 1869. Bradley v. State, 31 Ind. 492, 1869. —Iowa rule. See State v. Felter, 25 Iowa, 67, 1868. —Pennsylvania rule. To the same effect is the judgment of the court of common pleas of Philadelphia, in 1868. Com, ex rel. Haskell v. Has- kell, 2 Brewst. (Pa.) 491, 1868. See also Com. v. Freeth, 5 Clark (Pa.) 455, 1855. —Supreme Court of the United States, in Mutual L. Ins. Co. v. Terry, 15 Wall, 580, 21 L. ed. 236, 1872. Doctrine repudiated. The doc- trine, however, was emphatically re- pudiated in North Carolina, in 1861, State v. Brandon, 53 N. C. (8 Jones, L.) 4638, 1860. In conformity with the text may be cited a case in which Judge Story decided that 4 young woman who, in a violent impulse in puerperal fever, threw her child overboard, though at the time perfectly conscious of the enormity of the act, was entitled to an acquittal. United States v. Hewson, Brunner, Col. Cas. 532, 7 tae Rep. 361, Fed. Cas. No. 15360, FITNESS OF OFFENDER TO COMMIT OFFENSE. 81 § 62] And when it is shown that a party charged with crime com- mitted the crime under an insane irresistible impulse, then he is entitled to a verdict of insanity.” § 62. Caution requisite as to this defense. In the enun- ciation of this conclusion there should be the strictest caution, and in the application of it the most jealous scrutiny. And in connection with it, it is always important to keep in mind the impressive language of Lord Brougham, when discussing the question before the House of Lords: “With respect to the point of a person being an accountable being, that was an ac- countable being to the law of the land, a great confusion had pervaded the minds of some persons whom he was indisposed to call reasoners, who considered accountability in its moral sense aS mixing itself up with the only kind of accountable- ness with which they, as human legislators, had to do, or of which they could take cognizance. He could conceive of the case of a human being of a weakly constituted mind, who might, by long brooding over real or fancied wrongs, work up so per- verted a feeling of hatred against an individual that danger might occur. He might not be deluded as to the actual exist- ence of injuries he had received, but he might grievously and grossly exaggerate them, and they might so operate upon a weakly framed mind and intellect as to produce crime. He could conceive that the Maker of that man, in his infinite mercy, having regard to the object of his creation, might deem him not an object for punishment. But that man was account- able to human tribunals in a totally different sense. He could conceive a person whom the Deity might not dean accountable, but who might be perfectly accountable to human laws.” * The conclusion we must reach, therefore, is that an irresistible homicidal impulse in an insane person is a good defense, though such insane person was able to distinguish between right and wrong.” With a sane person, however, it is not a defense, as 2Reg. v. Oxford, 9 Car. & P. 525, Lord Brougham bases the distinction at pp. 545, 546, 1840; Plake v. State, 121 Ind. 488, 16 Am. St. Rep. 408, 23 N. E. 273, 1890. See authorities cited supra, § 60, footnote 1. 1Hans. Par. Deb. Ixvii. 728. In the speech as reported by Hansard, Crim. L, Vol. I—6. in the text on the preventive theory of punishability, heretofore dis- cussed. This, however, is not es- sential to the validity of his con- clusion. 2Criterion for determining Te- sponsibility in this country is the 82 CRIMINAL LAW. [§ 6 the law makes all sane persons responsible for their impulses.* But mere intellectual power to plan and premeditate does not constitute sanity.* There may be such power, and yet, from an incapacity to form a right view of the relations of the act, the party may be insane.® As insane persons, may be mentioned, in the sense just stated, persons afflicted with idiocy or amentia, the former being con- genital, the latter consisting of a loss of mental power,’ and mania.’ 4, “Moral insanity.”’* § 63. Moral insanity no defense. ‘Moral insanity,” im its distinctive technical sense, ability of the accused, whether sane or insane, to a limited extent, to dis- tinguish between right and wrong with respect to the particular act in- volved. See authorities cited supra, § 52, footnote 3; § 60, footnote 1. 8 As substantiating this conclusion. See [Cal.] People v. McDonell, 47 Cal. 134, 1869; People v. Hoin, 62 Cal. 120, 45 Am. Rep. 651, 1882. [Iowa] State v. Stickley, 41 Iowa, 232, 1875; State v. Mewherter, 46 Iowa, 88, 1877. [Miss.] Cunning- ham v. State, 56 Miss. 269, 31 Am. Rep. 360, 1879. [Neb.] Wright v. People, 4 Neb. 407, 1875; Hart v. State, 14 Neb. 572, 16 N. W. 905, 1883. [N. J.] State v. Spencer, 21 N. J. L. 196, 1847. [N. Y.] Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731, 1873; Walker v. People, 88 N. Y. 81, 1882. [Pa.] Coyle v. Com. 100 Pa, 573, 45 Am. Rep. 397, 1882. [Va.] Dejarnette v. Com. 75 Va. 869, 1880. See also authorities cited under next section. Compare, Com. v. Taylor, 16 Phila. 439, 41 Phila. Leg. Int. 488, 1884. In Blackburn v. State, 23 Ohio St. 165 (decided in 1872), the proper questions to be submitted to the jury where declared to be: “Was the accused a free agent in forming the purpose to kill? Was he at the time capable of judging whether that act was right or wrong? And did he know at the time that it was an of- is a supposed insanity of the fence against the laws of God ang& man?” See the statement by Cockburn,, Ch. J. on this point, given in the Appendix to the Report of the Com- mittee of the House of Commons on the homicide amendment bill. See: also Willis v. People, 5 Park. Crim. Rep. 620, 1860; and also Andrew’s: Case, 1 Wharton & S. Med. Jur. § 162. Act not a crime, when—“No act is a crime if the person who does it is, at the time when it is done, pre-- vented either by defective mental power, or by any disease affecting his mind, from controlling his own conduct, unless the absence of the power of control has been caused by his own default.” 1 Stephen, His-: tory Crim. Law, 168; Williams v. State, 50 Ark, 511, 9 S. W. 5, 1888; People v. Foy, 138 N. Y. 664, 34 N. E. 396, 1893. 4Bennett v. State, 57 Wis. 69, 46 Am. Rep. 26, 14 N. W. 912, 4 Crim. L. Mag. 378, 1883. 51 Wharton & S. Med. Jur. §§ 531-537. 6 Reg. v. Shaw, L. R. 1 C. C. 145,. 1866; Reg. v. Southey, 4 Fost. & F. 864, 1864; McAllister v. State, 17 Ala. 434, 52 Am. Dec. 180, 1849; Vance v. Com. 2 Va. Cas. 132, 1819. 7 United States v. Hewson, Brun- ner, Col. Cas. 532, 7 Law Rep. 361, Fed. Cas. No. 15360, 1844. 1Search Note: 14 Century Dig. § 63] FITNESS OF OFFENDER TO COMMIT OFFENSE. 83 moral system, coexisting with mental sanity.? It is therefore to be distinguished from “insane irresistible impulse,” which has just been noticed, in two respects: (1) “Irresistible im- pulse” is only a valid defense when the party offering it is men- tally deranged, while in “moral insanity,” by its very terms, the patient is always mentally sane; and (2) “irresistible im- pulse” is a special propensity impelling to a particular bad act, while in “moral insanity’ he is impelled to all sorts of badness. It is enough for the present, to say that, as is abund- antly shown elsewhere,* the position that “moral insanity,” as col. 674, § 64; 6 Decen. Dig. 191, § 51; Am. Dig. title “Criminal Law” § 51; 16 Am. & Eng. Ene. Law, 2d ed. p. 563; 5 Words & Phrases, 4579. Moral as contradistinguished from mental insanity. State v. Kring, 64 Mo. 591, 2 Am. Crim. Rep. 313, 1877. 2See 28 Alb. L. J. 40. I have dis- cussed this question in a note to Guiteau’s Case, 10 Fed. 161 et seq. 1882. 81 Wharton & S. Med. Jur. §§ 531- 537. Shortly after Townley’s Case, on a trial for murder, before Erle, J., the defence relied on evidence show- ing a great amount of senseless ex- travagance and absurd eccentricity of conduct, coupled with habits of excessive intemperance, causing fits of delirium tremens, the prisoner, however, not laboring under the ef- fects of such a fit at the time of the act, and the ciroumstances showing sense and deliberation, and a perfect understanding of the na- ture of the act; it was held, that the evidence was not sufficient to support the defence, as it rather tended to show wilful excesses and extreme folly than mental incapac- ity. Reg. v. Leigh, 4 Fost. & F. 915, 1864. And see Reg. v. Southey, 4 Fost. & F. 864, 1864; Watson’s Case, reported in 1 Wharton & S. Med. Jur. § 166; Edmund’s Case, Ibid. § 167. American authorities may be cited as follows: [Fed.] United States v. Holmes, 1 Cliff. 98, Fed. Cas. No. 15382, 1858; United States v. Shults, 6 McLean, 121, Fed. Cas. No. 16286, 1852. [Ala.] Boswell v. State 63 Ala. 307, 35 Am. Rep. 20, 1879. [Cal.] People v. Coffman, 24 Cal. 230, 1864; People v. McDonell, 47 Cal. 134, 1874; People v. Kerri- gan, 73 Cal. 222, 14 Pac. 849, 1887; [Conn.] State v. Richards, 39 Conn. 591, 1872; See Anderson v. State, 43 Conn. 514, 21 Am. Rep. 669, 1876. [Del.] State v. Windsor, 5 Harr. (Del.) 512, 1847. [D. C.J] United States v. Guiteau, 1 Mackey, 498, 47 Am. Rep. 247, 10 Fed. 161, 1882. [Ga.] Choice v. State, 31 Ga. 424, 1861; Spann v. State, 47 Ga. 553, 18738. [Ky.] See Scott v. Com. 4 Met. (Ky.) 227, 83 Am. Dec. 461, 1863. [Me.] State v. Law- rence, 57 Me. 574, 1869. [Mass.] Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, 1843; Com v. Heath, 11° Gray, 303, 1857. [Mich.] People v. Finley, 38 Mich. 482, 1878. [Neb.] Bothwell v. State, 71 Neb. 747, 99 N. W. 669, 1904. [N. J.] State v. Spencer, 21 N. J. L. 196, 1847. [N. Y.] Flanagan v. People, 52 N. Y. 467, 11 Am Rep. 731, 1873; Re Forman, 54 Barb. 274, 1869; Free- man v. People, 4 Denio, 9, 47 Am. Dec. 216, 1847. [N. C.] State v. Brandon, 53 N. C. (8 Jones, L.) 463, 1860. [Ohio] Farrer v. State, 2 Ohio St. 54, 18538. [Pa.] Com. v. Wireback, 190 Pa. 138, 43 W. N. C. 506, 70 Am. St. Rep. 625, 42 Atl. 542, 1899. [S. C.] State v. Cole- man, 20 S. C. 441, 1882. [S. D.] State v. Leehman, 2 S. D. 171, 49 N. W. 3, 1891. [Tex.] Leache v. State, 22 Tex. App. 279, 58 Am. Rep. 638, 3 S W. 539, 1886. [Va.] Vance v. Com. 2 Va. Cas. 132, 1818. Moral insanity as a defense, is 84 CRIMINAL LAW. [§ 63 thus defined, exists, is now almost without a defender among specialists in mental diseases. That it is repudiated by the courts of England and of the United States there is an almost unbroken current of authority to show. Carefully and con- scientiously has the defense, by a vast number of independent courts, been scanned; and in almost every instance the con- clusion is that the theory on which it rests is without support either in jurisprudence or psychology.* clearly defined in some cases. An- dersen v. State, 43 Conn. 514, 21 Am. Rep. 669, 1876. Contra: Is not recognized. Both- well v. State, 71 Neb. 747, 99 N. W. 669, 1904. See tit. “Uncontrollable impulse,” this note. —But must exist in such violence as to render accused incapable of acting otherwise than he has acted. Scott v. Com. 4 Met. (Ky.) 227, 83 Am. Dec. 461, 1863. These cases, though in various terms, unite substantially in declar- ing, as the proposition is stated by an able jurist, Judge Thurman (Far- rer v. State, 2 Ohio St. 54, 1853, “that there is no authority for hold- ing that mere moral insanity, as it is sometimes called, exonerates from responsibility.” See, also, Flanagan v. People, 52 N. Y. 467, 11 Am. Dec. 731, 1873; where it was said by Andrews, J.: “The argument proceeds upon the theory that there is a form of in- sanity in which the faculties are so disordered and deranged that a man, though he perceives the moral qual- ity of his acts, is unable to control them, and is urged by some myste- rious pressure to the commission of acts the consequences of which he anticipates but cannot avoid. What- ever medical or scientific authority there may be for this view, it has not been accepted by courts of law.” S. P., People v. McDonell, 47 Cal. 134, 1874; Cf Reg. v. Haynes, 1 Fost. & F. 666, 1859. A partial exception is to be found in some eccentric opinions delivered in the Court of Appeals of Kentuc- ky; opinions, however, which do not appear to have been sustained by a majority of the court in which they were pronounced. Smith v. Com. 1 Duv. 224, 1864; St. Louis Mut. Ins. Co. v. Graves, 6 Bush, 268, 1870. See 1 Wharton & S. Med. Jur. §§ 175-8, where these cases are dis- cussed. As exhibiting a view diverging from the text, see Andersen v. State, 43 Conn. 514, 21 Am. Rep. 669, 1876. In vindication and fuller elabora- tion of the remarks in the text on “moral insanity,” see 1 Wharton & S. Med. Jur. §§ 186 et seq. “Uncontrollable impulse” or “ir- tesistable impulse” as a defense to a charge for crime, is usually denied any validity. [Ala.] Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20, 1879. [Cal.] People v. Hoin, 62 Cal. 120, 45 Am. Rep. 651, 1882; People v. Ward, 105 Cal. 335, 88 Pac. 945, 1894; People v. McCarthy, 115 Cal. 255, 46 Pac. 1073, 1896; People v. Hubert, 119 Cal. 216, 63 Am. St. Rep. 72, 51 Pac. 329, 1897; People v. Barthleman, 120 Cal. 7, 52 Pac. 112, 1898; People v. Methever, 132 Cal. 326, 64 Pac. 451, 1901. [Mo.] State v. Pagels, 92 Mo. 300, 4 S. W. 931, 1887. [N. J.] Graves v. State, 45 N. J. L, 347, 46 Am. Rep. 778, 1883. [S. C.] State v. Bundy, 24 S. C. 444, 58 Am. Rep. 262, 1885; State v. Alexander, 30 S. C. 74, 14 Am. St. Rep. 879, 8 S. E. 440, 1888; State v. Levelle, 34 S. C. 120. 27 Am. St. Rep. 799, 18 S. E. 319, 1891. [Tex.] Leache vy. State, 22 Tex. App 279, 58 Am. Rep. 638, 3 S. W. 539, 1886. [W. Va.] State v. Harrison, 36 W. Va. 729, 18 L.R.A. 224, 15 S. E. 982, 9 Am. Crim. Rep. 626, 1892. 4Reg. v. Oxford, 9 Car. & P.-525, § 64] FITNESS OF OFFENDER TO COMMIT OFFENSE. 85 5. Mental disturbance as lowering grade of guilt. § 64. Mental disturbance admissible to disprove malice. The old common-law authorities took the ground that sanity and insanity are states as clearly and absolutely distin- guishable as are coverture and noncoverture; and that men are either wholly sane, so as to be wholly responsible, or wholly in- sane, so as to be wholly irresponsible. This principle, how- ever, is now abandoned as based on a psychological untruth. There are many degrees both of sanity and insanity; and the two states approach each other in imperceptible gradation, melt- ing into each other,—to adopt an illustration borrowed by Lord Penzance from Burke,—as day melts into night. There may therefore be phases of mind which cannot be positively spoken of as either sane or insane. Are persons in one of these phases to be acquitted of crime? If so, they would constitute a class not only dangerous, but uncontrollable; for they would not be sane enough to be convicted as felons, and yet would not wet be insane enough to be confined as lunatics. Are they to be convicted, when charged with offenses involving malice and premeditation? At this justice would revolt, for at the time of the commission of the guilty act the defendant, as it could readily be shown, was not in a condition of mind coolly to pre- meditate, or accurately to contemplate, a malicious design. Un- der such circumstances, the better course is to find the defend- ant guilty of the offense in a diminished grade, when the law establishes such grade; or when it does not, to inflict on him modified punishment.’ Nor is this view inconsistent with the analogies of the law. Such considerations (1. e., those of the defendant’s mental constitution) are invoked whenever we have light on either side, attempting to 1840; Reg. v. Barton, 3 Cox, C. C. fix a Jimit at which reason either 275, 1850; Reg. v. Higginson, 1 Car. & K. 129, 1848; Reg. v. Layton, 4 Cox, C. C. 149, 1851; Reg. v. Haynes, 1 Fost. & F. 666, 1859; Reg. v. Townley, 3 Fost. & F. 839, 1862; People v. Kerrigan, 73 Cal. 222, 14 Pac. 849, 1887. 1“We use no mere metaphor when we say that the intellect passes through innumerable gradations from the full glow of noonday to the depth of midnight. He who at- tempts to place a limit to the twi- suddenly ceases or suddenly begins, is in the quandary of those who put to the stoical philosophers the ques- tion what constitutes « heap of corn, and what a bald head, and who were brought at last to confess that a single grain made a heap of corn, and pulling out a single hair made a bald head.” Ideler, Cericht. Psychol. pp. 45-51. 2See 1 Wharton & S. Med. Jur. §§ 126, 181, 200. 86 CRIMINAL LAW. [§ 64 to determine whether a party assailed acted bona fide when re- sorting to violent measures of self-defense. So do we gauge re- sponsibility in cases of sleep drunkenness; so do we estimate the conduct of persons when roused by any great political or religious excitement,® and so do we hold in cases of intoxication, when called upon to measure deliberation and intent.* If, in cases where homicide has been committed during an excitement which the defendant’s peculiar physical state has abnormally protracted and intensified, a verdict of murder in the second degree, or of manslaughter, be given in accordance with these views, a result is reached which not only harmonizes with sound principle, but it is far more consistent with the public idea of justice than would be a verdict either of not guilty, or.of mur- der in the first degree.® Sir J. F. Stephen lends his authority to the same view. “Partial insanity,” he says, “may be evidence to disprove the presence of the kind of malice required by the law to constitute the par- ticular crime of which the prisoner is accused. A man is tried for wounding with intent to murder. It is proved that he in- flicted the wound under a delusion that he was breaking a jar. The intent to murder is disproved, and the prisoner must be acquitted; but if he would have had no right to break the sup- posed jar, he might be convicted of an unlawful and malicious wounding,” ® or, in case of the death of the party so wounded, the defendant might be found guilty of manslaughter” on the ground of negligent homicide. 3 Infra, §§ 514, 515, 622; 1 Whar- ton & S. Med. Jur. § 181. 4See Roberts v. People, 19 Mich. 401, 1869. Infra, §§ 514, 515, 622. 5 As illustrating this. See McGreg- or’s Case, 28 Am. Jur. Ins. 549. 6 Stephen, Crim. Law (1863) p. 92. 7 Want of intelligence—Evil pas- sions—In Jones v. Com. 75 Pa. 403, 1 Am. Crim. Rep. 262, 1874, Agnew, C. J., said: “Want of intelligence is not the only defect to moderate the degree of offence; but with in- telligence there may be an absence of power to determine properly the true nature and character of the act, its effects upon the subject, and the true responsibility of the actor: @ power necessary to control the im- pulse of the mind, and prevent the execution of the thought which pos- sesses it. In other words, it is the absence of that self-determining power which in a sane mind renders it conscious of the real nature of its own purposes, and capable of resist- ing wrong impulses. When this self- governing power is wanting, whether it is caused by insanity, gross intoxi- cation, or other controlling influ- ences, it cannot be said truthfully that the mind is fully conscious of its own purposes, and deliberates or premeditates in the sense of the act describing murder in the first degree. We must, however, distinguish this defective frame of mind from that wickedness of heart which drives the § 65] FITNESS OF OFFENDER TO COMMIT OFFENSE, 87 Whether a man is responsible can be answered only by yes or no. But while, on the general question of amenability for erime, there can be no grades of responsibility, it is otherwise when we view the question objectively, as involving responsibil- ity for crimes of which there are several grades. A man may have capacity, for instance, to be responsible for manslaughter, but not to be responsible for murder; for he may have capacity enough for a blind, passionate killing, but not for a killing that is deliberate and intelligent. In this sense we may hold that there may be modified guilt. Responsibility itself is capable of no modifications. But certain phases of guilt require nigher eapacity than do other phases of guilt.* And there may be properly a verdict of murder in the second degree in cases where there was an intent to kill, and yet, from mental disturb- ance, this intent was not specific.” 6. Intoxication. § 65. Persons under insanity produced by intoxication may be irresponsible. Settled insanity produced by intoxi- cation affects responsibility in the same way as insanity pro- duced by any other cause.? If a man who, laboring under de- murderer on to the commission of his crime, reckless of consequences. Evil passions often seem to tear up reason by the root, and urge on to murder with heedless rage. But they are the outpourings of a wicked nature, not of an unsound or dis- abled mind.” 8 See Meyer, § 25. Berner, § 125, says, “die Verfechter der verminder- ten Zurechnungsfihigkeit wollen Richtiges in unrichtigerform.” 8 Jones v. Com. 75 Pa. 403, 1 Am. Crim. Rep. 262, 1874; Green v. Com. 83 Pa. 75, 1876, infra, §§ 506, 582); Pistorius v. Com. 84 Pa. 158, 2 Am. Crim. Rep. 284, 1877; Willis v. Com. 32 Gratt. 929, 1879. In Indiana the doctrine of the text is not accepted; but the same re- sult is reached by authorizing the defendant to put “his mental condi- tion” in evidence for the purpose of explaining his intent. Sage v. State, 91 Ind. 141, 1883. lIntoxication voluntarily incurred does not destroy criminal responsi- bility. See authorities cited infra § 67, foot-note 1. 2See, on this topic, Wharton & S. Med. Jur. 4th ed. § 204; article by Mr. Lawson in 23 Am. L. Reg. N. S. 1884, pp. 217 et seq.; Territory v. Davis, 2 Ariz. 59, 10- Pac. 359, 1886; State v. Kavanaugh, 4 Penn. (Del.) 131, 53 Atl. 335, 1902. Drunkenness, to be a _ defense, must result in a diseased condition of the mind; e. g., delirium tremens, or other form of insanity. State v. Trapp, — Or. —, 109 Pac. 1094, 1910. Insanity produced by intoxication not a defense in a prosecution for crime where accused voluntarily be- came intoxicated while sane and re- sponsible. People v. Jones, 63 Cal. 168, 1883. Temporary aberration produced by voluntary intoxication, no excuse and furnishes no defense in prosecu- CRIMINAL LAW. [§ 65 88 lirium tremens, kills another, be made responsible, there is scarcely any species of insanity which, on like principles, would not be subjected to the severest penalties of criminal law. A man laboring under this species of delirium may be as utterly insane as a man laboring under any other kind of delirium. The only ground for assigning a higher degree of responsibility in cases of delirium tremens is the fact that in the latter case the delirious person has subjected himself voluntarily to this calamity. But to this the answer is threefold: (1) That de lirium tremens is not the intended result of drink in the same way that drunkenness is; (2) that there is no possibility that delirium tremens will be voluntarily generated in order to af- ford a cloak for a particular crime; (3) that so far as original cause is concerned, delirium tremens is not peculiar in being the offspring of indiscretion or guilt, for such is the case with many other kinds of insanity. These points scarcely need to be expanded. The fact is, delirium tremens runs the same course with almost every other species of insanity known in the criminal courts. It is the result, like many other manias, of prior vicious indulgences; but it differs from intoxication in being shunned rather than courted by the patient, and in being incapable of voluntary assumption for the purpose of covering guilt. Hence the conclusion above given has been re- peatedly affirmed.* And expressly to this point is a case where tion for crime. Byrd v. State, 76 Ark. 286, 88 S. W. 974, 1905; State v. Robinson, 20 W. Va. 718, 438 Am. Rep. 799, 1889. Accused laboring under temporary insanity produced by protracted drinking to excess spirituous liquors, _rendering him incapable of distin- guishing between right and wrong, renders him not amenable to the criminal laws. State v. Hand, 1 Marv. (Del.) 545, 41 Atl. 192, 1894; State v. Riley, 100 Mo. 493, 13 S. W. 1063, 1890. 84 Bl. Com. 26, 1 Hale, P. C. 32. [Eng.] Rex v. Thomas, 7 Car. & P. 817, 1837; Rex v. Meakin, 7 Car. & P. 297, 1837; Rennie’s Case, 1 Lewin, C. C. 76, 1825; Reg. v. Davis, 14 Cox, C. C. 563, 1879. [Fed.] United States v. Clarke, 2 Cranch, C. C. 158, Fed. Cas. No. 14,811, 1824; United States v. Drew, 5 Mason, 28, Fed. Cas. No. 14,993, 1828; United States v. Forbes, Crabbe, 558, Fed. Cas. No. 15,129, 1845. [Ala.] Beas- ley v. State, 50 Ala. 149, 120 Am. Rep. 292, 1873. [Del.] State v. Dil- lahunt, 3 Harr. (Del.) 551, 1844. [Ind.] Bailey v. State, 26 Ind. 422, 1867; Fisher v. State, 64 Ind. 435, 1878. [Ky.] Smith v. Com. 1 Duv. 224, 1864. [Mich.] Roberts v. Peo- ple, 19 Mich. 401, 1869. [Neb.] Schlencker v. State, 9 Neb. 241, 1 N. Y. 857, 1880. [N. Y.] Flanigan v. People, 86 N. Y. 554, 40 Am. Rep. 556, 1881. [Ohio] Maconnehey v. State, 5 Ohio St. 77, 1855. [Pa.] Com. v. Green, 1 Ashm. (Pa.) 289, 1826. [Tenn.] Bennett v. State, Mart. & Y. 133, 1839; Cornwell v. State, Mart. & Y. 147, 1827. See Stuart v. State, 1 Baxt. 178, 1873; § 66] FITNESS CF OFFENDER TO COMMIT OFFENSE, 8 Judge Curtis, of the United States Supreme Court, told the jury “that if the defendant was so far insane as not to know the nature of the act, nor whether it was wrong or not, he is. not punishable, although such delirium tremens is produced by the voluntary use of intoxicating liquors.”* Drunkenness, also, when so complete as to stupefy, may be a defense to a pros- ecution for any offense with the commission of which stupefac- tion is inconsistent. And permanent insanity produced by drunkenness stands on the same footing as permanent insanity of any other type.® § 66. Voluntary intoxication does not exculpate. Temporary insanity produced immediately by intoxication does not destroy responsibility, where the patient, when sane and re- sponsible, made himself voluntarily intoxicated. It may, as we will presently see, lower the grade of guilt in cases in which the defendant did not previously make himself drunk with the crime in view. But it does not, when voluntary, and when not (Where the right and wrong test was applied). [Tex.] Carter v. State, 12 Tex. 500, 62 Am. Dec. 539, 1854; Erwin v. State, 10 Tex. App. 700, 1881. [Va.] Boswell v. Com. 20 Gratt. 860, 1871. [W. Va.] Bales v. State, 3 W. Va. 685, 1864. Compare: People v. Cummins, 47 Mich. 334, 11 N. W. 184, 186, 1882. 4United States v. McGlue, 1 Curt, C. C. 1, Fed. Cas. No. 15,679, 1855. Delirium tremens set up as a de- § fence, the prisoner must show that he was under a delirium at the time the act was perpetrated, there being no presumption of its existence from antecedent fits from which he has recovered. State v. Sewell, 48 N. C. (6 Jones, L.) 245, 1855. As to presumption or continuance of insanity, see Wharton, Crim. Ev. § 730; 7 Enc. Ev. p. 462. Rule as to presumption applies to those cases where the infirmity is chronic or of an apparently con- firmed character only: See 7 Ene. Ev. p. 462. Insanity from drunkenness.— Where it is shown that the defend- ant’s mind has been so far destroyed by long-continued habits of drunk- enness as to render him mentally incompetent for the intelligent com- mission of crime, this mental in- capacity is held a sufficient defense. Bailey v. State, 26 Ind. 422, 1867; Cluck v. State (1871) 40 Ind. 263,. 1871. As to “dipsomania,” see Wharton & S. Med. Jur. § 639; State v. Pike, 49 N. H. 399, 6 Am. Rep. 533, 1869; People v. Blake, 65 Cal. 275, 4 Pac. 1, 5 Crim. L. Mag. 723, 1884, see post 70. 5 Infra, § 71. 6 State v. Robinson, 20 W. Va. 713, 43 Am. Rep. 799, 1882. 1 Defendant made drunk by artifice of another is to be treated as if pro tanto insane, see Bartholomew v. People, 104 Ill. 605, 44 Am. Rep. 97, 1882. Temporary drunkenness as tempo- rary insanity.—In Smith v. Com. 1 Duv. 224, 1864, Judge Robertson held that temporary drunkenness may in respect to responsibility be treated as temporary insanity; but this was repudiated in Shannahan v. Com. (1871) Bush, 463, 8 Am. Rep. 465, 1871; Upstone v. People, 109 Ill. 169, 4 Am. Crim. Rep. 395,. 1883; Gunter v. State, 83 Ala. 96, 3 So. 600, 1887. 90 ' GRIMINAL LAW. [§ 66 amounting to insanity as above stated, destroy responsibility.” This conclusion is sustained not only by reason, but by policy. There could rarely be a conviction for homicide if drunkenness avoided responsibility.2 Few violent crimes would probr ‘ly be attempted without resorting to liquor both as a stimulant and as a shield; * and the very fact, therefore, which shows peculiar malignant deliberation, would be interposed as an excuse. The authorities, however, concur in rejecting this position. Sir E. Coke tells us: “As for a drunkard who is voluntarius demon, he hath, as has been said, no privilege thereby, but what hurt or ill soever he doth, his drunkenness doth aggravate it. Omne crimen ebrietas et incendit et detegit,”* And though casual drunkenness cannot now be said to aggravate a crime in a judicial sense,® yet it is settled that it forms no defense to the fact of guilt. Judge Story, in a case already cited, after noticing that in- sanity, as a general rule, produces irresponsibility, went on to say: “An exception is when the crime is committed by a party while in a fit of intoxication, the law allowing not a man to avail himself of the excuse of his own gross vice and miscon- duct to shelter himself from the legal consequences of such. crime.” Lord Hale said: “The third sort of madness is that which is dementia affectata, namely, drunkenness. This vice doth de- prive a man of his reason, and puts many men into a perfect, but temporary, frenzy; but by the laws of England, such a per- son shall have no privileges by his voluntary contracted mad- ness, but shall have the same judgment as if he were in his right senses.” 7 Parke, B., said to a jury in 1837: “I must also tell you that, if a man makes himself voluntarily drunk, it is no excuse for any crime he may commit whilst he is so; he takes the con- 2People v. Jones, 63 Cal. 168, 5 Co. Litt. 247a. 1883; State v. Wilson, 104 N. C. 6 See McIntyre v. People, 38 III. 868, 10 S. E. 315, 1889. 515, 1864; Ferrell v. State, 43 Tex, 8See 1 Wharton & S. Med. Jur. 503, 1875. §§ 207-10. 71 Hale, P. C. 7; 4 Bl. Com. 26; 4See Nevling v. Com. 98 Pa. 323, 1 Gabbett, Crim. Law, 9; and see a 1881; State v. Robinson, 20 W. Va. learned article in 6 Law Rep. N. S. 713, 43 Am. Rep. 799, 1882. 654, § 67] FITNESS OF OFFENDER TO COMMIT OFFENSE. 91 sequences of his own voluntary act, or most crimes would go unpunished.” ® And Alderson, B., said in 1836: “If a man chooses to get drunk, it is his own voluntary act; it is very different from madness, which is not caused by any act of the person. The voluntary species of madness which is in a party’s power to ab- stain from he must answer for.” ® In harmony with this is the unbroken current of English au- thority.” § 67. —Doctrine in this country. In this country tue same position has been taken with marked uniformity, it being held that voluntary drunkenness not amounting to settled insanity is no defense to the factum of guilt;? the only point about 8 Rex v. Thomas, 7 Car. & P. 817, 1837. 9 Rex v. Meakin, 7 Car. & P. 297, 1836. 10 Burrow’s Case, 1 Lewin, C. C. 75, 1823; Rennie’s Case, 1 Lewin, T. C. 76, 1823; Rex v. Ayes, 1 Russ. & R. 166, 1810; Reg. v. Gamlen, 1 Fost. & F. 90, 1859; 1 Russell, Crimes, 8. 1[Fed.] Respublica v. Weidle, 2 Dall. 88, 1 L. ed. 301, 1781; United States v. McGlue, 1 Curt. C. C. 1, Fed. Cas. No. 15,679, 1855; United States v. Clarke, 2 Cranch, C. C. 158, Fed. Cas. No. 14,811, 1824; United States v. Cornell, 2 Mason, 91, Fed. Cas. No. 14,868, 1825; United States v. Drew, 5 Mason, 28, Fed. Cas. No. 14,993, 1823. [Ala.] State v. Bullock, 13 Ala. 413, 1848; Hill v. State, 62 Ala. 168, 1878; Tidwell v. State, 70 Ala. 33, 1881; Ford v. State, 71 Ala. 385, 1881; Williams v. State, 81 Ala. 1, 60 Am. Rep. 133, 1 So. 179, 7 Am. Crim. Rep. 443, 1887; Cleveland v. State, 86 Ala. 1, 5 So. 426, 1889; Engel- hardt v. State, 88 Ala. 100, 7 So. 154, 1889; Whitten v. State, 115 Ala. 72, 22 So. 4838, 1897; Fielding v. State 185 Ala. 56, 33 So. 677, 1908. [Ark.] Casat v. State, 41 Ark. 511, 1882. [Cal.] People v. Lewis, 36 Cal. 531, 1869; People v. Jones, 63 Cal. 168, 1883; People v. Blake, 65 Cal. 275, 4 Pac. 1, 1884; People v. Dowell, 141 Cal. 493, 75 Pac. 45, 1903. [Del.] State v. Tru- itt, 5 Penn. (Del.) 466, 62 Atl. 790, 1905. [D. C.] Harris v. United States, 8 App. D. C. 20, 36 L.R.A. 465, 1896; lLanckton v. United States, 18 App. D. C. 348, 1901; Ryan v. United States, 26 App. D. C. 74,6 A. & E. Ann. Cas. 633, 1905. [Fla.] Jenkins v. State, 58 Fla. 62, 50 So. 582, 1909. [Ga.] Mercer v. State, 17 Ga. 146, 1854; Choice State, 31 Ga. 424, 1860; Estes State, 55 Ga. 30, 1875; Hanvey State, 68 Ga. 612, 1881; Beck State, 76 Ga. 452, 1886; Cribb State, 118 Ga. 316, 45 8. E. 396, 1908; Brazzell v. State, 119 Ga. 559, 46 8S. E. 837, 1903. [1i1.] Upstone v. People, 109 Ill. 169, 4 Am. Crim. Rep. 395, 1888. [Ind.] O’Herrin v. State, 14 Ind. 420, 1860; Cluck v. State, 40 Ind. 263, 1872; Gillooley v. State, 58 Ind. 182, 1877; Smurr v. State, 88 Ind. 504, 1882; Sanders v. State, 94 Ind. 147, 1883. [Ind. Terr.| Carney v. United States, 7 Ind. Terr. 247, 104 S. W. 606, 1907. [Kan.] State v. White, 14 Kan. 538, 1874; State v. Mowry, 37 Kan. 369, 15 Pac. 282, 1887; State v. O’Neil, 51 Kan. 651, 24 L.R.A. 555, 33 Pac. 487, 1887. [Ky.] Smith v. Com. 1 Duv. 224, 1864; Golliher v. Com. 2 Duv. 163, 87 Am. Dee. 493, 1865; Shannahan v. Com. 8 Bush, 463, 8 Am. Rep. 465, 1871; Mc- carty v. Com. 14 Ky. L. Rep. 285, 20 S. W. 229, 1892; Conley v. Com. 98 Ky. 125, 32 S. W. 285, 1895. {La.] State v. Mullen, 14 La. Ann, SSS Ss 92 CRIMINAL LAW. [§ 67 which there has been any fluctuation being the extent to which evidence of drunkenness is receivable to determine the exact- ness of the intent or the degree of deliberation.? 577, 1859; State v. Coleman, 27 La. Ann. 691, 1875. [Mass.] Com. v. Hawkins, 3 Gray, 4638, 1855; Com. v. Malone, 114 Mass. 295, 1873. [Minn.] State v. Welch, 21 Minn. 22, 1875. [Miss.] Kelly v. State, 3 Sm. & M. 518, 1844. [Mo.] Schal- ler v. State, 14 Mo. 502, 1851; State v. Harlow, 21 Mo. 446, 1855; State v. Pitts, 58 Mo. 556, 1875; State v. Dearing, 65 Mo. 530, 1877; State v. Ramsey, 82 Mo. 133, 1884; State v. Sneed, 88 Mo. 138, 1885; State v. Lowe, 93 Mo. 547, 5 S. W. 889, 1887; State v. Murphy, 118 Mo. 7. 25 S. W. 95, 1893; State v. O'Reilly, 126 Mo. 597, 29 S. W. 577, 1895; State v. Alcorn, 137 Mo. 121, 38 S. W. 548, 1897; State v. West, 157 Mo. 309, 57 S. W. 1071, 1900; State v. Stebbins, 188 Mo. 387, 87 S. W. 460, 1905; State v. Church, 199 Mo. 605, 98 S. W. 16, 1906. [N. ¥.] Kenny v. People, 31 N. Y. 330, 1864; Lanergan v. People, 50 Barb. 266, 1867; People v. Pearce, 2 Edm. Sel. Cas. 76, 1849; . People v. Batting, 49 How. Pr. 395, 1875; People v. Cavanagh, 62 How. Pr. 187, 1881; People v. Robinson, 1 Park. Crim. Rep. 649, 1854; People v. Porter, 2 Park. Crim. Rep. 14, 1823; People v. Hammill, 2 Park. Crim. Rep. 228, 1855; People v. Rob- inson, 2 Park. Crim. Rep. 235, 1855. [N. C.] State v. John, 30 N. C. (8 Tred. L.) 330, 49 Am. Rep. 396, 1848; State v. Keath, 83 N. C. 626, 1880. [Ohio] Cline v. State, 43 Ohio St. 332, 1 N. E. 22, 5 Am. Crim. Rep. 57, 1885; State v. Neil, Tappan (Ohio) 88, 1817; State v. Turner, Wright (Ohio) 20, 1831. [Pa.] Mc- Ginnis v. Com. 102 Pa. 66, 1883; Com. v. Crozier, 1 Brewst (Pa.) 349, 1867; Com. v. Hart, 2 Brewst. (Pa.) 546, 1868; Kilpatrick v. Com. 3 Phila. 237, 1858. [S. C.] State v. Stark, 1 Strobh. L. 479, 1846; State v. Paulk, 18 8. C. 514, 1881; State v. Bundy, 24 8. C. 489, 58 Am. Rep. 263, 1885. [S. D.] State v. Ford, 16 S. D. 228, 92 N. W. 18, 1902. {Tenn.] Cornwell v. State, Mart. & Y. 147, 1827; Swan v. State, 4 Humph. 136, 1873; Pirtle v. State, 9 Humph. 663, 1848. [Tex.] Carter v. State, 12 Tex. 500, 62 Am. Dec. 539, 1854; Outlaw v. State, 35 Tex. 481, 1872; Colbath v. State, 4 Tex. App. 76, 1878; Brown v. State, 4 Tex. App. 275, 1878; McCarty v. State, 4 Tex. App. 461, 1878; Payne v. State, 5 Tex. App. 35, 1878; Poc- ket v. State, 5 Tex. App. 552, 1879; Scott v. State, 12 Tex. App. 31, 1881; Rather v. State, 25 Tex. App. 623, 9 S. W. 69, 1888; Houston v. State, 26 Tex. App. 657, 14 S. W. 352, 1883; Cleland v. State, — Tex. Crim. Rep. —, 65 S. W. 189, 1901. [Va.] Boswell v. Com. 20 Gratt. 860, 1871. As long as the offender is capable of conceiving a design, he is respon- sible. Smurr v. State, 88 Ind. 504, 1883; Kenny v. People, 31 N. Y. 330, 1865. If the person retains mind enough to plan and execute u crime. People v. Robinson, 2 Park. Crim. Rep. 235, 1855. If the person retains intelligence enough to know right from wrong, and know the act in question was wrong. People v. Leonardi, 143 N. Y. 360, 38 N. E. 372, 1894. Except where it has continued so long and to such an excess as to produce delirium tremens or perma- nent insanity. People v. Pearce, 2 Ed. Sel. Cas. 76, 1849; Com. v. Cro- zier, 1 Brewst. (Pa.) 349, 1867. Is a circumstance to be considered by the jury in determining the de- gree of the crime. People v. Jones, 63 Cal. 168, 1883. Person who voluntarily makes himself drunk for the purpose of taking the life of another and, while temporarily insane and unconscious of what he is doing by reason of such drunkenness, takes the life of such person, he is guilty of murder. State v. Robinson, 20 W. Va. 713, 43 Am. Rep. 799, 1882. 2[Ala.] King v. State, 81 Ala. 92, 8 So. 159, 1886. [Ark.] Chrisman § 68] FITNESS OF OFFENDER TO COMMIT OFFENSE. 93 § 68. Intoxication admissible to determine condition of mind. When a particular condition of mind is requisite to constitute an offense, intoxication may be proved to explain such condition.? v. State, 54 Ark. 288, 26 Am. St. Rep. 44, 15 S. W. 889, 1891; [Ky.] Buckhannon v. Com 86 Ky. 110, 5 S. W. 358, 1887. [Or.] State v. Zorn, 22 Or. 591, 30 Pac. 317, 1892. [Tex.] Scott v. State, 12 Tex. App. 31, 1882. 1[Fed.] United States v. Rouden- bush, Baldw. 514, Fed. Cas. No. 16,- 198, 1832. [Ala.] Mooney v. State, 33 Ala. 419, 1859; Engelhardt v. State, 88 Ala. 100, 7 So. 154, 1889; White v. State, 103 Ala. 72, 16 So. 63, 1893; Whitten v. State, 115 Ala. 72, 22 So. 483, 1896; [Ark.] Harris v. State, 34 Ark. 469, 1879; Casat v. State, 40 Ark. 511, 1888; Chris- man v. State, 54 Ark. 283, 26 Am. St. Rep. 44, 15 S. W. 891, 1891. {Cal.] People v. Harris, 29 Cal. 678, 1866; People v. Vincent, 95 Cal. 425, 30 Pac. 581, 1892; People v. Meth- ever, 132 Cal. 326, 64 Pac. 481, 1901. [Conn.] State v. Johnson, 40 Conn. 136, 1873; State v. Johnson, 41 Conn. 584, 1874. [Dak.] People v. Odell, 1 Dak. 197, 46 N. W. 601, 1875. [Del.] State v. Snow, 3 Penn. (Del.) 259, 51 Atl. 607, 1901; State v. Kavanaugh, 4 Penn. (Del.) 131, C3 Atl. 335, 1902; State v. Di Gug- lielmo, 4 Penn. (Del.) 336, 55 Atl. 350, 1903. [I}H.] Crosby v. People, 137 Tl. 325, 27 N. BE. 49, 1891; Bruen v. People, 206 Il. 417, 69 N. E. 24, 1903. [Ind.] Aszman v. State, 123 Ind. 347, 8 L.R.A. 33, 24 N. E. 123, 1890; Booher v. State, 156 Ind. 435, 54 L.R.A. 391, 60 N. E. 156, 1901. [Iowa] State v. Cather, 121 Iowa, 106, 96 N. W. 722, 1903; State v. Williams, 122 Iowa, 115, 97 N. W. 992, 1904; State v. Roan, 122 Iowa, 136, 97 N. W. 997, 1904. [Kan.] State v. Mowry, 37 Kan. 369, 15 Pac. 282, 1887. [Ky.] Kriel v. Com. 5 Bush, 363, 1869; Shannahan v. Com. 8 Bush, 463, 8 Am. Rep. 465, 1871. [Mich.] Roberts v. People, 19 Mich. 401, 1870; People v. Walk- er 38 Mich. 156, 1878. [Minn.] State v. Garvey, 11 Minn. 154, Gil. Great caution is necessary in the application of 95, 1865. [Neb.] O’Grady v. State, 36 Neb. 320, 54 N. W. 556, 1893. [N. J.] Warner v. State, 56 N. J. L. 686, 44 Am. St. Rep. 415, 29 Atl. 505, 9 Am. Crim. Rep. 526, 1894. [N. Y.] People v. Eastwood, 14 N. Y. 562, 1856; People v. Leonardi, 143 N. Y. 360, 38 N. E. 372, 1894. [Ohio] Pigman v. State, 14 Ohio, 555, 45 Am. Dec. 558, 1846; Barber v. State, 39 Ohio St. 660, 1884; Cline v. State, 43 Ohio St. 332, 1 N. E. 22, 5 Am. Crim. Rep. 57, 1885. [Or.] State v. Garrand, 5 Or. 216, 1874. [Pa.] Com. v. M’Fall, Addi- son (Pa.) 255, 1794. [S. D.] State v. Ford, 16 8S. D. 228, 92 N. W. 18, 1902. [Tenn.] Swan v. State, 4 Humph. 136, 1843; Pirtle v. State, 9 Humph. 663, 1849; Haile v. State, 11 Humph. 154, 1850; Cartwright v. State, 8 Lea, 376, 1881. [Tex.] Ferrell v. State, 43 Tex. 503, 1876; Wenz v. State, 1 Tex. App. 36, 1876; Colbath v. State, 4 Tex. App. 76, 1878; Brown v. State, 4 Tex. App. 275, 1878; McCarty v. State, 4 Tex. App. 461, 1878; Payne v. State, 5 Tex. App. 35, 1878; Pocket v. State, 5 Tex. App. 552, 1878; Reagan. v. State, 28 Tex. App. 227, 19 Am. St. Rep. 833, 12 S. W. 601, 1839. [Va.] Boswell v. Com. 20 Gratt. 860, 1871. [W. Va.] State v. Davis, 52 W. Va. 224, 43 S. E. 99, 1902. As to voluntary intoxication in extenuation of crime, see note in 8 L.R.A. 33. As to what intoxication will ex- cuse crime, see note in 36 L.R.A. 465. In the case of crimes involving no specific intent or malice, drunken- ness will form no defense to the prosecution regardless of the nature and character of the mental condi- tion of the accused at the time of the offense resulting from intoxica- tion. Laws v. State, 144 Ala. 118, 42 So. 40, 1905. In all cases where any particular purpose, motive, intent or malice is a necessary element of the crime 94 CRIMINAL LAW. “Tg 68 this doctrine to prosecutions for homicides and other violent crimes, for, as has already been remarked, there are few cases of premeditated violence in which the defendant does not pre- viously nerve himself for the encounter by liquor, and there would in future be none at all, if the fact of being in liquor at. the time were enough to disprove the existence of premedita- tion.* The true view, therefore, is not that the fact of liquor having been taken affects the issue when the offense is shown to have been premeditated,* but that when there is no evidence of premeditation aliunde, and the defendant is proved at the time of the occurrence to have been in a state of mental con- fusion of which drink was the cause, the fact of such mental confusion may be received to show that the defendant was at. the time in hot blood, making him peculiarly susceptible to sup- charged, or of the degree thereof, the fact of intoxication at the time of the commission of the crime may be shown for the purpose of enab- ling the jury to determine the exist- ence or nonexistence of such pur- pose, intent or malice on the part of the accused at the time of the commission of the crime and also for fixing the degree thereof. Nor- man v. Com. 31 Ky. L. Rep. 1283, 104 8S. W. 1024, 1907; State v. Blod- gett (1907) 50 Or. 329, 92 Pac. 820, 1907. Fact of drunkenness may be shown as bearing on the question of wilful intent or malice on the part of accused in committing the act complained of, or a lack of such in- tent or malice. Robb v. Com. 31 Ky. L. Rep. 246, 101 S. W. 918, 1907. Where the drunl:cnness of one ac- cused of larceny is not of such a degree as to effect his ability to form an intent to steal, the fact of the intoxication will be no defense. Ry- an v. United States, 26 App. D. C. 74, 6 A. & E. Ann. Cas. 633, 1905. Where a person becomes too drunk to form an intent to steal, without any intention to steal before becoming intoxicated, such intoxica- tion will relieve from criminal re- sponsibility. Ryan v. United States, 26 App. D. C. 74, 6 A. & E. Ann, Cas. 633, 1905. As affecting criminal responsibil- ity, see Edwards v. State, 88 Tex. Crim. Rep. 386, 39 L.R.A. 262, 43 S. W. 112, 1897; Also note in 40 Am. Rep. 560. As to drunkenness affecting degree. of crime, see note in 6 Am. Crim. Rep. 182. As to drunkenness being no de- fense in a prosecution for crime, see note in 76 Am. St. Rep. 91. As to drunkenness excusing crime or mitigating punishment, see note in 9 Am. Crim. Rep. 534-536. As to drunkenness as defense to homicide, see note in 13 L.R.A.(N.S.) 1024. As to intoxication as a defense in prosecution for larceny, see note in 6 A. & E. Ann, Cas. 636. As to what intoxication will re- lieve from criminal responsibility, see notes in 8 L.R.A. 33 and 36 L.R.A. 465-482. As to what weight the fact of drunkenness should have in deciding criminal responsibility, see note in 3 Am. Crim. Rep. 162-165. 2[D. C.] Ryan v. United States, 26 App. D. C. 74, 6 A. & E. Ann. Cas. 633, 1905. [Iowa] State v. Sparegrove, 134 Iowa, 599, 112 N. W. 838, 1907. [Ky.] Norman v. Com. 31 Ky. L. Rep. 12838, 104 S. W. 1024, 1907. [Or.] State v. Blodgett, 50 Or. 329, 92 Pac. 820, 1907. 8See infra, §§ 71, 515. § 68] FITNESS OF OFFENDER TO COMMIT OFFENSE, 95 posed insult, which would reduce the offense at common law to manslaughter; * or that he was not at the time capable of forming a deliberate or specific intent, which, as will be seen in the next section, affects the question of statutory degree.* “Tf the existence of a specific intention,” says Sir J. F. Ste- phen,® “is essential to the commission of a crime, the fact that an offender was drunk when he did the act which, if coupled with that intention, would constitute such crime, should be 4See cases discussed infra §§ 71, 515; and see also [Eng.] Reg. v. Gamlen, 1 Fost. & F. 90, 1858; [Ala.] Tidwell v. State, 70 Ala. 33, 1881. [Cal.] People v. Williams, 43 Cal. 344, 1872. [Ga.] Jones vy. State, 29 Ga. 594, 1890; Malone v. State, 49 Ga. 210, 1873; Moon v. State, 68 Ga. 687, 1881. [Ill] McIntyre v. People, 38 Ill. 514, 1864. [Ind.] Dawson v. State, 16 Ind. 428, 79 Am. Dee. 439, 1861; Cluck v. State, 50 Ind. 263, 1872. [La.] State v. Trivas, 32 La. Ann. 1086, 36 Am. Rep. 293, 1880. [Minn.] State v. Garvey, 11 Minn. 154, Gil. 95, 1866. [N. Y¥.] People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484, 1859; People v. Cassiano, 30 Hun, 388, 1882. [Pa.] Keenan v. Com. (1862) 44 Pa. 55, 84 Am. Dec. 414, 1862; Jones v. Com. 75 Pa. 403, 1 Am. Crim. Rep. 262, 1874. [Tenn.] Haile v. State, 11 Humph. 154, 1851; Cartwright v. State, 8 Lea, 376, 1881. [Tex.] Ferrell v. State, 43 Tex. 503, 1875; Wenz v. State, 1 Tex. App. 36, 1876; Jeffries v. State, 9 Tex. App. 598, 1880. In New York, on a trial of an in- dictment for murder with a club in a sudden affray, it was held admis- sible to prove that the prisoner was intoxicated at the time; and where a witness, then present, well know- ing the prisoner, after describing his appearance and conduct, was asked to give his opinion whether the pris- oner was intoxicated, and the court excluded such evidence, this was held ground for a new trial. Eastwood v. People, 8 Park. Crim. Rep. 25, 1855. But see Kenny v. People, 31 N. Y. 330, 1868. Instruction as to intoxication.— So on a trial for murder, the de- fendant’s counsel requested the court to charge “that if it appeared from the evidence that the condition of the prisoner from intoxication was such as to show that there was no motive or intention to commit the crime of murder, that the jury should find a verdict of manslaugh- ter.” The court refused, and it was held that the charge should have been given, as the question of intent was material to the degree of the crime. Rogers v. People, 3 Park. Crim. Rep. 632, 1855, in error 18 N. Y. 9, 72 Am. Dec. 484, 1858. For advanced doctrine as to same point, see Smith v. Com. 1 Duv. 224, 1864; Blimm v. Com. 7 Bush, 320, 1871, which cases, however, are greatly qualified in Shannahan v. Com. 8 Bush, 463, 8 Am. Rep. 465, 1871. See State v. Edwards, 71 Mo. 312, 1880. That this excuse is to be received with “great caution,” see People v. Ferris, 55 Cal. 588, 1880. 5 Reg. v. Moore, 3 Car. & K. 319, 16 Jur. 750, 1850; Reg. v. Monk- house, 4 Cox, C. C. 55, 1849; [Fed.] United States v. Bowen, 4 Cranch, C. C. 604, Fed. Cas. No. 14,629, 1835. [Ala.] Cleveland v. State, 86 Ala. 1, 5 So. 426, 1889. [Cal.] People v. Langton, 67 Cal. 427, 7 Pac. 848, 7 Am. Crim. Rep. 439, 1885; People v. Lanagan, 81 Cal. 142, 22 Pac. 482, 1889. [Iowa] State v. Maxwell, 42 Towa, 208, 1875; State v. Donovan, 61 Iowa, 369, 16 N. W. 206, 1883. [Ky.] Carpenter v. Com. 92 Ky. 452, 18 S. W. 9, 1892. [La.] State v. Trivas, 32 La. Ann. 1086, 36 Am. Rep. 293, 1880. [Tex.] Houston v. State, 26 Tex. App. 657, 14 S. W. 352. 1883. 6 Digest Crim. Law, art, 28. 96 CRIMINAL LAW. [§ 68 taken into account by the jury in deciding whether he had that intention.” 7 § 69. —Especially as to intent to take life. Hence drunkenness is material under the statutes resolving murder into two degrees, in which the distinguishing test is a specific intent to take life. In the Philadelphia riot cases of 1844, where it was shown that bodies of men were inflamed by sec- tarian and local prejudices, and blinded by a wild apprehension of danger, to such an extent as to make them incapable of dis. crimination or of precise or specific purpose, it was held that they could not be considered as guilty of that species of “wil- ful and deliberate” murder which constitutes murder in the first degree.? Analogous to this is the case of the drunkard who in a fight slays an antagonist without any prior premeditation. In his intoxication he may be incapable of such mental action as the term “premeditated” describes, or of forming a “spe- cific intent” to take life. And yet, at the same time, at com- mon law the offense might, strictly speaking, fall under the head of murder, for it would possess the incident of malice, would be independent of that of provocation, and would be prompted by a determination to inflict great bodily hurt. Under such cir- cumstances, the offense may be ranked as murder in the sec- ond degree, and this has repeatedly been decided by the courts.® 7To this is cited Reg. v. Cruse, 8 Car. & P. 541, 2 Moody, C. C. 53, 1838. This view is affirmed in [Fed.] or otherwise, as to be capable of de- liberate premeditation, necessarily becomes a material subject of con- sideration by the jury.” Gray, J., Hopt v. Utah, 104 U. S. 631, 26 L. ed. 873, 4 Am. Crim. Rep. 365, 1881; ‘United States v. King, 34 Fed. 302, 1888; United States v. Meagher, 37 Fed. 875, 1888. [Ala.] King v. ‘State, 81 Ala. 92, 8 So. 159, 1886; Engelhardt v. State, 88 Ala. 100, 7 So. 154, 1889. [Tex.] Rather v. ‘State, 25 Tex. App. 623, 9 8. W. 69, 1888. 1Com. v. Dorsey, 103 Mass. 412, 1869. Deliberation required for first de- gree murder.—‘When a statute es- tablishing different degrees of mur- -der requires deliberate premeditation in order to constitute murder in the first degree, the question whether the accused is in such a condition of mind, by reason of drunkenness Hopt v. Utah, 104 U. S. 631, 26 L. ed. 873, 4 Am. Crim. Rep. 365, 1881. 2 Wharton, Homicide, § 191. 3[Fed.] Hopt v. Utah, 104 U. S. 631, 26 L. ed. 873, 4 Am. Crim. Rep. 365, 1881. ([Ala.] State v. Bullock, 13 Ala. 418, 1847. [Cal.] People v. Belencia, 21 Cal. 544, 1862; People v. Williams, 43 Cal. 344, 1872; People v. Blake, 65 Cal. 277, 4 Pac. 3, 1884. [Conn.] State v. Johnson, 41 Conn. 584. 1874, 40 Conn. 136, 1873. [Fla.] Garner v. State, 28 Fla. 118, 155, 29 Am. St. Rep. 232, 252, 9 So. 845, 1891. [Ga.] Jones v. State, 29 Ga. 594, 1859. [Ill.] Rafferty v. People, 66 Til, 118, 1872. [Ind.] Aszman v. State, 123 Ind. 347, 8 L.R.A. 33, 36, 24 N. E. 125, 1890. [Kan.] State v. § 70] FITNESS OF OFFENDER TO COMMIT OFFENSE. 97 And if no malice be shown, the offense would be manslaughter at common law.* § 70. —And as to other questions of intent. The same considerations apply to the question of specific intent in other relations.t Thus, in an Ohio case it was properly held that when the charge was knowingly passing counterfeit money with intent to cheat, the drunkenness of the defendant at the time of the offense was a fit subject for the consideration of the jury, there being no ground to suppose that the defendant knew the money to be counterfeit before he was drunk.? To perjury, also, drunkenness may be a defense,® though not when the false oath was intelligently taken.* Larceny, also, is not imputable to a White, 14 Kan. 538, 1874. [Ky.] Curry v. Com. 2 Bush, 67, 1867. {La.] State v. Trivas, 32 La. Ann. 1086, 36 Am. Rep. 293, 1880. [Miss.] Kelly v. State, 3 Smedes & M. 518, 1844. [Mo.] State v. Har- low, 21 Mo. 446, 1855. [Neb.] Smith v. State, 4 Neb. 277, 1875; O’Grady v. State, 36 Neb. 320, 54 N. W. 556, 1893. [N. Y.] People v. Batting, 49 How. Pr. 392, 1874. [Pa.] Jones v. Com. 75 Pa. 403, 1 Am. Crim. Rep. 262, 1874; Com. v. M’Fall, Addi- son (Pa.) 255, 1794; Com. v. Hart, 2 Brewst. (Pa.) 546, 1868; Kelly v. Com. 1 Grant, Cas. 484, 1858; Com. v. Haggerty, Lewis, Crim. Law, 403; Com. v. Platt, 11 Phila. 421, 1876. [Tenn.] Swan v. State, 4 Humph. 136, 1843; Pirtle v. State, 9 Humph. 663, 1848; Haile v. State, 11 Humph. 154, 1851; Lancaster v. State, 2 Lea, 575, 3 Am. Crim. Rep. 160, 1879. [Tex.] Lyle v. State, 31 Tex. Crim. Rep. 103, 115, 19 S. W. 905, 1892. [Va.] Boswell v. Com. 20 Gratt. 860, 1871; Com. v. Jones, 1 Leigh, 598, 1829. See infra, § 515; and also note in 40 Am. Rep. 565. Compare: Estes v. State, 55 Ga. 80, 1875; Spencer v. State, 69 Md. 28, 42, 46, 13 Atl. 814, 816-818, 1888. The question left to the jury in such cases is whether the defendant’s mental condition was such that he was capable of a specific intent to take life. In Missouri, the rule in the text Crim, L. Vol. I.—7. is not accepted; State v. Edwards, 71 Mo. 324, 1880; State v. Dearing, 65 Mo. 530, 1877. In Vermont the rule in the text is repudiated. State v. Tatro, 50 Vt. 483, 3 Am. Crim. Rep. 165, 1877. 4Hopt v. Utah, 104 U. S. 631, 26 L. ed. 873, 4 Am. Crim. Rep. 365, 1881. See Lyle v. State, 31 Tex. Crim. Rep. 103, 115, 19 S. W. 905, 1892. 1See [Eng.] Reg. v. Monkhouse, 4 Cox, C. C. 55, 1849; Reg. v. Stop- ford, 11 Cox. C, C. 643, 1869. [Fed.] United States v. Meagher, 37 Fed. 875, 1888. [Ky.] Keeton v. Com. 92 Ky. 522, 18 S. W. 359, 1892. [Mass.] Com. v. Atkins, 136 Mass. 160, 1884 (a case of fraud). [Mich,] People v. Walker, 38 Mich. 156, 1878. [Wis.] Ingalls v. State, 48 Wis. 647, 4 N. W. 785, 1880. 2Pigman v. State, 14 Ohio, 555, 45 Am. Dec. 558, 1846, which case was afterwards confined to its pecu- liar state of facts in Nichols v. State, 8 Ohio St. 435, 1858. See, to the same point, United States v. Rou- denbush, Baldw. 514, Fed. Cas. No. 16,198, 1833. But see State v. Avery, 44 N. H. 392, 1862. In a forgery case evidence of “dipo- mania” is admissible for the defense. See People v. Blake, 65 Cal. 275, 4 Pac. 1, 5 Crim. L. Mag. 723, 1884. Supra, § 65. 3 Lytle v. State, 31 Ohio St. 196, 1875. 4People v. Willey, 2 Park. Crim. Rep. 19, 1855. 98 CRIMINAL LAW. [§ 70 person so drunk as to be incapable of a fraudulent intent.® And when the defendant was indicted for an attempt to com- mit suicide by drowning, and it was alleged that she was at the time unconscious of the nature of her act from drunkenness, Jervis, Ch. J., said to the jury: ‘If the prisoner was so drunk as not to know what she was about, how can you find that: she intended to destroy herself? ”® So, again, when the charge was assault with intent to murder, Patterson, J., said: “A person may be so drunk as to be utterly unable to form any intention at all, and yet he may be guilty of very great violence. If you are not satisfied that the prisoners, or either of them, had formed a positive intention of murdering the child, you may find them guilty of an assault.”’ The same distinction applies to attempts.* Whenever, however, the offense is not dependent on intent, e. g., in double voting, then drunkenness is no de- fense.® § 71. —But not so as to reduce responsibility when malice is shown. In an English case decided in 1819,' where Holroyd, J., is reported by Sir W. Russell, who adopts his opinion as text law, to have said that the fact of drunken- ness might be taken into consideration to determine the ques- tion whether an act was premeditated or done only with sudden heat and impulse. Although this has been doubted,? yet it may now be considered as settled in England that where no prior intention to kil] is shown, drunkenness is a condition from which hot blood may be inferred, and therefore deliberateness negatived.* In this country we have repeated rulings to the ef- 5 [Ark.] Wood v. State, 34 Ark. [Ala.] Mooney v. State, 33 Ala. 419, 1860. 341, 36 Am. Rep. 13, 1879. See also [Ind.] Rogers v. State, 33 Ind. 543, 1870. [Iowa] State v. Bell, 29 Iowa, 316, 1869. [Mass.] Com. v. Finn, 108 Mass. 466, 1871. [Tex.] Wenz v. State, 1 Tex. App. 36, 1876; John- son v. State, 1 Tex. App. 146, 1876; Loza v. State, 1 Tex. App. 488, 28 Am. Rep. 416, 1877; Scott v. State, 12 Tex. App. 31, 1882. [Wis.] State v. Schingen, 20 Wis. 75, 1866. See also infra, § 1123. 6 Reg. v. Moore, 3 Car. & K. 319, 16 Jur. 750, 1850, 6 Law Rep. N. 8S. 581. 7 [Eng.] Reg. v. Cruse, 8 Car. & P. 541, 2 Moody C. C. 58, 1838. See [Mich.] Roberts v, People, 19 Mich. 401, 1869. [Minn.] State v. Garvey, 11 Minn. 154, Gil. 95, 1866. [Tex.] Jeffries v. State, 9 Tex. App. 598, 1880. 8 Reg. v. Doody, 6 Cox, C. C. 463; Reg. v. Stopford, 11 Cox, C. C. 643, 1869. SInfra, §§ 108-113, 2189; People v. Harris, 29 Cal. 678, 1865. Contra, State v. Welch, 21 Minn. 22, 1875. 1Rex v. Grindley, Crimes, 12, note t¢. 2 Rex v. Carroll, 7 Car. & P. 145, 1835. 8 Rex v. Meakin, 7 Car. & P. 297, 1 Russell, § 71] FITNESS OF OFFENDER TO COMMIT OFFENSE. 99 fect that where the encounter was sudden, and the defendant, pricr to such encounter, had no intention to kill, intoxication at the time of the encounter can be taken into consideration, to as- certain whether the defendant, when under a legal provocation, acted from malice or from sudden passion,* and whether there was deliberation, or a specific intention to take life. But when an intention to kill formed when the defendant was in pos- session of his faculties is shown, the court will tell the jury that voluntary intoxication does not lower the offense to man- slaughter. And under any circumstances, the intoxication must be coupled with the act. Thus, evidence that the de- fendant was in the habit at times of drinking to excess, and of the’ effect of this habit upon his mind, is incompetent unless confined to a period within a few days of the homicide.” 1836; and see Reg. v. Gamlen, 1 Fost. & F. 90, 1858; Rex v. Thomas, 7 Car. & P. 817, 1837. 4[Fed.] Hopt v. Utah, 104 U. S. 631, 26 L. ed. 873, 4 Am. Crim. Rep. 365, 1881; United States v. Rouden- bush, Baldw. 514, Fed. Cas. No. 16,198, 1888. [Ala.] State v. Bul- lock, 18 Ala. 418, 1847; Mooney v. State, 33 Ala. 419, 1860. [Cal.] Peo- ple v. Belencia, 21 Cal. 544, 1861; People v. King, 27 Cal. 507, 87 Am. Dec. 95, 1865; People v. Williams, 43 Cal. 344, 1872; People v. Blake, 65 Cal. 275, 4 Pac. 1, 1884; People v. Vincent, 95 Cal. 425, 30 Pace. 581, 1892. [Ga.] Golden v. State, 25 Ga. 527, 1858; Jones v. State, 29 Ga. 594, 1859. [Ill] McIntyre v. Peo- ple, 38 Ill. 514, 1864. [Ind.] Asz- man v. State, 123 Ind. 347, 8 L.R.A. 33, 24 N. E. 125, 1890. [Iowa] State v. Bell, 29 Iowa, 316, 1869. [Mass.] Com. v. Hawkins, 3 Gray, 463, 1855. [Mich.] Roberts v. Peo- ple, 19 Mich. 401, 418, 1870. [Miss.] Kelly v. State, 3 Smedes & M. 518, 1845. [Mo.] State v. Harlow, 21 Mo. 446, 1851. [Neb.] Schlencker v. State, 9 Neb. 241, 1 N. W. 857, 1879. [N. Y.] People v. Hammill, 2 Park, Crim. Rep. 223, 1855; People v. Robinson, 2 Park. Crim. Rep. 235, 1855, 55, 84 Am. Dec. 414, 1862; Com. v. M’Fall, Addison, (Pa.) 255, 1794. [Tenn.] Swan v. State, 4 Humph. 136, 1843; Pirtle v. State, 9 Humph. [Pa.] Keenan v. Com. 44 Pa. [ 663, 1848; Haile v. State, 11 Humph. 154, 1851. [W. Va.] State v. Robin- son, 20 W. Va. 713, 43 Am. Rep. 799, 1882. [Wis.] Ingalls v. State, 48 Wis. 647, 4 N. W. 785, 1860. See cases infra, § 515; also note in 40 Am. Rep. 562, 566. 5 Supra, § 69. 6 [Eng.] Rex v. Carroll, 7 Cas. & P. 145, 1835; Rex v. Meakin, 7 Car. & P. 297, 1836; Rex v. Ayes, Russ. & R.C. C. 166, 1810. [Fed.] United States v. Cornell, 2 Mason, 91, Fed. Cas. No. 14,868, 1825. [Ala.] State v. Bullock, 13 Ala. 418, 1845; Tidwell v. State, 70 Ala, 33, 1881. [Conn.] State v. Johnson, 41 Conn. 584, 1874. [Ga.] Mercer v. State, 17 Ga. 146, 1855. [Ind.] Smurr v. State, 88 Ind. 504, 1882. [Ky.] Shannahan v. Com. 8 Bush, 463, 8 Am. Rep. 465, 1871 (qualifying prior cases cited, § 68). [La.] State v. Mullen, 14 La. Ann. 577, 1859. [Mass.] Com. v. Hawkins, 3 Gray, 463, 1851. [Mo.] State v. Dearing, 65 Mo. 530, 1877. [Nev.] State v. Thompson, 12 Nev. 140, 1877. [N. Y.] People v. Robinson, 1 Park. Crim. Rep. 649, 1854; Peo- ple v. Hammill, 2 Park. Crim. Rep. 223, 1855. [Ohio] Nichols v. State, 8 Ohio St. 435, 1858. [Pa.] Com. v. M’Fall, Addison (Pa.) 255, 1794. Va.J] Boswell v. State, 20 Gratt. 860, 1871. See also cases cited supra, § 67. 7Real v. People, 42 N. Y. 270, 1869; and see supra, § 65. 100 CRIMINAL LAW. {§ 72 § 72. “Voluntary” is conditioned by temperament. Interesting questions may arise as to what “voluntary” is. There may be persons who, from constitutional peculiarities are so susceptible to stimulants that on even slight indulgence they become virtually insane. If such persons are aware of this infirmity, and nevertheless voluntarily take the stimulant, their subsequent insane condition, if it be only special and temporary, is no defense. But what if they are not aware of this peculiarity of their constitution? Or how is it if such susceptibility, instead of being constitutional, so that they can have notice of it, is exceptional, induced by some peculiar tem- porary debility or disease? Is a man who, under such abnormal conditions, is maddened by a quantity of wine which on former occasions he wisely and soberly used as a mere tonic, to be regarded as making himself voluntarily mad?* This ques- tion is elsewhere fully discussed.* It is enough now to say that the tendency both of argument and authority is to answer the question in the negative.? And a fortiori in this case, where the stimulant is given through the mistake or misconduct of others.* %. Practice in cases of insanity. § 73. Witness may give opinion based on observation. The mode of examining witnesses called to testify as to sanity is examined in detail in another work.’ At present it may be sufficient to recapitulate the following conclusions : 1. Nonexperts as well as experts may be asked whether in 1See State v. Johnson, 40 Conn. ‘4See Choice v. State, 31 Ga. 424, 136, 1873. 1860; People v. Robinson, 2 Park. “Intentionally,” “wilfully,” and Crim. Rep. 235, 1884; Pearson’s Case, “voluntarily” are thought to be syn- 2 Lewin, C. C. 144, 216, 1826, re- onymous terms in this connection. marks by Parke, J., and see infra, See Gillett v. Wiley, 126 Ill. 310, 9 § 498. Am. St. Rep. 587, 19 N. E. 287, 1Wharton, Crim. Ev. § 417. See 1888. 7 Enc. Ev. pp. 467-479, and Com. v. 21 Wharton & S. Med. Jur. § 211. Brayman, 136 Mass. 438, 1884. 8 Rogers v. State, 33 Ind. 548, Admissible of evidence to estab- 1870; Roberts v. People, 19 Mich. lish insanity is a matter of law for 401, 1869. the court. State v. Patten, 10 La. Compare: Choice v. State, 31 Ga. Ann. 299, 63 Am. Dec. 594, 1855. 424, 1861. § 73] FITNESS OF OFFENDER TO COMMIT OFFENSES: their opinion a party whom they had the opportunity to ob- serve was at the time drunk.” 2. Such being the case, we must also hold that as to condi- tions equally patent to the lay mind,—e. g., stupor, dementia, amentia, paralysis,—a nonexpert as well as an expert may give his opinion.’ 8. When acts of doubtful signification are put in evidence by a nonexpert, he is not entitled to give his opinion as to their effect, since this is a matter of which the jury are as qualified to judge as he is. 4, As to hypothetical cases, an expert * may be examined,° but not a nonexpert. 5. The weight of authority is that intelligent attendants who have lived continuously with a party may give an opinion as to his sanity, though they are not specialists in psychological disease.® 2Intoxication is a fact to be proved by observation, the witnesses being limited to what they saw, al- though they may describe the facts and circumstances leading to conclu- sions formed as to intoxicated con- dition, describing conduct, attitude, tone, words, and gestures, expres- sions, of the eye and face. Whether a man is intoxicated or sober is a matter of common observation, not requiring any special or technical knowledge or skill, and may be testi- fied to by anyone having occasion to see the person, and whose means of judging correctly are submitted to the jury. [Ga.] Choice v. State, 31 Ga. 424, 1860; Pierce v. State, 53 Ga. 365, 1874, [Ill.] Aurora v. Hill- man, 90 Ill. 61, 1878. [Iowa] State v. Huxford, 47 Iowa, 16, 1877; State v. Cather, 121 Iowa, 106, 96 N. W. 722, 1903. [Me.] Stacy v. Portland Pub. Co. 68 Me. 279, 1878. [Mass.] Edwards v. Worcester, 172 Mass. 104, 51 N. E. 447, 1898, [Minn.] McKillop v. Duluth Street R. Co. 53 Minn. 532, 55 N. W. 739, 1893. [N. J.] Castner v. Sliker, 33 N. J. L. 95, 1868. [N. Y¥.] People v. Eastwood, 14 N. Y. 562, 1856; Felska v. New York C. & H. R. R. Co. 152 N. Y. 339, 46 N. E. 618, 1897; Bradley v. Second Ave. R. Co. 8 Daly, 289, 1879; McCarty v. Wells, 51 Hun, 171, 4 N. Y. Supp. 672, 1889; Peo- ple ex rel. Flood v. Martin, 15 Misc. 6, 36 N. Y. Supp. 437, 1895; People ex rel. Kelley v. MacLean, 37 N. Y. S. R. 628, 18 N. Y. Supp. 677, 1891. [Tex.] Pace v. State, —Tex. Crim. Rep. —, 79 S. W. 531, 1904. Evidence as to the condition of another person who had taken the same number of drinks, is inadmissi- ble. Com. v. Cleary, 135 Pa. 64, 8 L.R.A. 301, 19 Atl. 1017, 1890. 8[Fla.] Armstrong v. State, 30 Fla. 170, 17 L.R.A. 484, 11 So. 618, 1892, [Tll.] Upstone v. People, 109 Ill, 169, 4 Am. Crim. Rep. 395, 1883. [Nev.] State v. Lewis, 20 Nev. 333, 22 Pac. 241, 8 Am. Crim. Rep. 574, 1889. [N. Y¥.} People v. Taylor, 138 N. Y. 398, 34 N. E. 275, 1893. [S. D.] State v. Leehman, 2 8S. D. 171, 49 N. W. 3, 1891. [W. Va.] State v. Maier, 36 W. Va. 757, 15 S. W. 991, 1892. #Taylor v. State, 83 Ga. 647, 10 S. E. 442, 1889; Montgomery v. Com. 88 Ky. 509, 11 S. W. 475, 1889. 5[Ala.] Gunter v. State, 83 Ala. 96, 3 So. 600, 1888. | Miss.] Kearney v. State, 68 Miss. 238, 8 So. 292, 1890. [S. C.] State v. Coleman, 20 S. C. 441, 1883. 6 People v. Lee Fook, 85 Cal. 300, 24 Pac. 654, 1890. 102 CRIMINAL LAW. [§ 74 § 74. Defense may be taken by friends of the accused. Whatever may once have been thought, it is now settled that the defense of insanity may be taken by the friends and coun- sel of a prisoner, even though this course be objected to by himself. Thus, in an Engitish case, a man was indicted for shooting at his wife with intent to murder her, and was de- fended by counsel who set up for him the defense of insanity. The prisoner, however, objected to such a defense, asserting that he was not insane, and was allowed to suggest questions to be put by the judge to the witnesses for the prosecution, to negative the supposition that he was insane; and the judge also, at the request of the prisoner, allowed additional wit- nesses to be called on his behalf for the same purpose. They, however, failed to show that the defense was an unfounded one; but, on the contrary, their evidence tended to establish it more clearly, and the prisoner was acquitted on the ground of insanity.* To refuse this right to the guardian or friends of the accused would be to assume his sanity, which is the question at issue. § 75. In some jurisdictions plea is special. In some jurisdictions the defense of insanity must be set up on a special plea.t Where such a plea is entered, it is to be regarded in the nature of a plea in confession and avoidance, when offered as a defense; or as a plea in abatement of the prosecution, on the ground of insanity.” § 76. Issue to be tried by jury. By the common law, if it be doubtful whether a criminal who, at this trial, in ap- pearance, is a lunatic, be such in truth or not, the issne is to 1State v. Patten, 10 La. Ann. 299, 63 Am. Dec. 594, 1855. See Reg. v. Pearce, 9 Car. & P. 667, 1840. Insanity of accused being an issue, evidence on that point offered by his counsel should be accepted by the court, even though such evidence is offered against the accused. State v. Patten, 10 La. Ann. 299, 63 Am. Dec. 594, 1855. 2 Reg. v. Pearce, 9 Car. & P. 667, 1840. 1 Wharton, Crim. Pl. & Pr. § 429 a. See Mitchell v. Kingman, 5 Pick. 431, 1827. Burke v. Allen, 29 N. H. 106, 61 Am. Dec. 642, 1854; Young v. Stevens, 48 N. H. 133, 97 Am. Dec. 592, 2 Am. Rep. 202, 1868. 2[Mass.] Seaver v. Phelps, 11 Pick. 304, 22 Am. Dec. 372, 1831; [Mo.] State v. Pagels, 92 Mo. 300, 48. W. 931, 1887. [N. H.] Burke v. Allen, 29 N. H. 106, 61 Am. Dec. 642, 1854; Dennett v. Dennett, 44 N. H. 531, 84 Am. Dec. 97, 1863; Young v. Stevens, 48 N. H. 133, 97 Am. Dec. 592, 2 Am. Rep. 202, 1868. [N. Y.] Rice v. Pect, 15 Johns. 503, 1818. [Tex.] Allen v. Pannell, 51 Tex. 165, 1879. § 76} FITNESS OF OFFENDER TO COMMIT OFFENSE. 103 be tried by the jury who are charged to try the indictment,* or, being a collateral issue, the fact may be pleaded and re- plied to ore tenus, and a venire awarded, returnable instanter, in the nature of an inquest of office.? If it was found by the jury that the party only feigned himself lunatic, and he re- fused to answer, he was, before the 7 & 8 Geo. IV. chap. 28, § 2, dealt with as one who stood mute, and as if he had con- fessed the indictment; but now, by virtue of that enactment, a plea of not guilty may be pleaded. The principal point to be considered by the jury under that statute is whether the de- fendant is of sufficient intellect to comprehend the course of the proceedings on the trial, so as to be able to make a proper defense.* The question whether the defendant was insane at the commission of the offense is considered at common law under the plea of guilty. As 1 Bacon Abr. “Idiot” (B); Ley’s Case, 1 Lewin, C. C. 239, 1823; 1 Russell, Crimes, 14. See 1 Hawk. P. C. chap. 1, § 4; Rex v. Haswell, Russ. & R.C. C, 458, 1818. An article on this topic by Prof. ‘Ordronaux will be found in 1 Crim. L. Mag. 431 et seq. 2¥Fost. C. L. 46; 1 Lev. 61; Rus- sell, Crimes, by Greaves, 14. 3See Rex v. Pritchard, 7 Car. & P. 303, 305, 1 Lewin, 84, 1836. In Massachusetts, where one, hay- ing committed a homicide, was sent to the house of correction, pursuant to Stat. 1797, chap. 61, § 3, as a person dangerous to go at large, and was then tried for murder, and ac- quitted on the ground of insanity, the court remanded him to the house of correction till he should be duly discharged. Com. v. Meriam, 7 Mass. 168, 1810. See Com. v. Braley, 1 Mass. 103, 1806; Com. v. Hathaway, 13 Mass. 299, 1816; Com. v. Battis, 1 Mass. 95, 1806. Provision of the general statutes that “when any person indicted for an offense is, on trial, acquitted by the jury, by reason of insanity, the jury, in giving their verdict of not guilty, shall state it was given for such cause; and thereupon, if his discharge or going at large is deemed has been already seen, the de- manifestly dangerous to the peace and safety of the community, the court may order him to be com- mitted to one of the state lunatic hospitals; otherwise he shall be dis- charged.” Gen. Stat. chap. 173, § 17. See Com. v. Eddy, 7 Gray, 584, 1856; Rev. Stat. Mass. chap. 138, § 13. In the same state, in case of in- sanity, “the grand jury shall certify that fact to the court,” and there- upon the court is required to take order in the premises. Ibid. chap. 136, § 15. See Gen. Stat. chap. 171, § 15. In New York, it has been judicial- ly held that the test of insanity, when set up to bar a trial, is wheth- er the prisoner is mentally compe- tent to make a rational defense. Freeman v. People, 4 Denio. 9, 47 Am. Dec. 216, 1847. Preliminary trial to determine whether the defendant is sane enough to make a rational defense, the defendant is not entitled to per- emptory challenges; but challenges for cause may be made. Ibid. See as to statute, 1 Crim. L. Mag. 435. In Pennsylvania, the revised act (1860) provides for a special ver- dict in case of insanity on a pre- liminary issue. 104 CRIMINAL LAW. [§ 77 fendant who sets up this defense is required, in some jurisdic- tions, to present it in a special plea to be tried before the plea of not guilty.* § 77. Insanity after conviction defers execution.’ If a party under sentence of death becomes insane after con- viction, execution is to be deferred,’ and in some jurisdictions the issue in such case is referred to a jury for determination.® It has been ruled in such case that evidence of the convict’s mental condition at the time of the commission of the crime is admissible to illustrate his present condition, provided there be other evidence of present insanity, or provided permanent insanity be thereby shown.* § 78. Burden is on party disputing sanity. By the com- mon law, every man is presumed to be sane until the contrary be proved,’ and the better opinion is that when insanity is set up by the defendant, it must be proved as a substantive fact by the party alleging it, on whom lies the burden of proof.” In Tennessee, under the statute, an analogous practice exists. Cold- well v. State, 3 Baxt. 429, 1869. 4See Wharton, Crim. Pl. & Pr. 9th ed. § 429 a; Bennett v. State, 57 Wis. 69, 46 Am. Rep. 26, 14 N. W. 912, 4 Crim. L. Mag. 378, 1883; Coldwell v. State, 3 Baxt. 429, 1869. “Not guilty” in addition is plea of insanity.—It has been held not error to require a defendant to plead “not guilty,” in addition to his special plea of insanity. Long v. State, 38 Ga. 491, 1869. 1 As to time of insanity, see supra, § 50, footnote 1. 2Hale’s Sum. 10; 1 Hawk. P. C. chap. 1, § 3; 4 BI. Com. 24. 8See State v. Lane, 26 N. C. (4 Tred. L.) 434, 1843; State v. Hinson, 82 N. C. 540, 1880; State v. Vann, 84 N. C. 722, 1881. 4Spann v. State, 47 Ga. 553, 1872. In Pennsylvania, when insanity is set up as a bar to sentence, the. ques- tion of a jury trial is at the discre- tion of the court. Laros v. Com. 84 Pa. 200, 1877. 1Dacey v. People, 116 Ill. 555, 6 N. E. 165, 6 Am. Crim. Rep. 461, 1886; Montag v. People, 141 Ill. 75, 30 N. E. 337, 1892. Presumption of sanity and crimi- nal responsibility of accused. See State v. Lewis, 20 Nev. 333, 22 Pac. 241, 8 Am. Crim. Rep. 574, 1889; also note in 36 L.R.A. 722. The presumption of sanity con- trols in the absence of evidence to the contrary, and dispenses with the necessity of the state’s producing evidence of sanity in the first in- stance; but if the defendant gives evidence tending to overthrow the presumption, the state must prove his sanity beyond a reasonable doubt, to warrant a conviction. See State v. Lewis, 20 Nev. 338, 22 Pac. 241, 8 Am. Crim. Rep. 574, 1889; also note in 97 Am. Dec. 178. 2 Wharton, Crim. Ev. § 336; 7 Enc. Ev. p. 460. [Eng.] Reg. v. Stokes, 8 Car, & K. 188, 1850; Reg. v. Tay- lor, 18 Cox, C. C. 77, 1874; Rex v. Haswell, Russ. & R. C. C. 458, 1818; Atty. Gen. v. Parnther, 4 Bro. Ch. 409; Reg. v. Layton, 4 Cox, ©, C. 149, 1850; M’Naghten’s Case, 10 Clark & F. 200, 8 Scott, N. R. 595, 1 Car. & K. 130, note. [Fed.] Hotemaa v. United States, 186 U. 8. 418, 46 L. ed. 1225, 22 Sup. Ct. Rep. 895, 1902; United States v. Holmes, 1 Cliff. 98, Fed. Cas, No. 15,382, 1858; United States v. Lawrence, 4 Cranch, C. C. 514, Fed. Cas. No. 15,576, 1835; Unit- § 78] ed States v. MeGlue, 1 Curt. C. C. 1, Fed. Cas. No, 15,679, 1855; United States v. Ridgeway, 31 Fed. 144, 1887; United States v. Chisholm, 153 Fed. 808, 1907. [Ala.] State v. Brinyea, 5 Ala. 241, 1843; Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20, 1897. [Cal.] People v. Myers, 20 Cal. 518, 1861; People v. Eubanks, 86 Cal. 295, 24 Pac. 1014, 1890; Peo- ple v. Travers, 88 Cal. 233, 26 Pac. 88, 1891 People v. McNulty, 93 Cal. 427, 26 Pac, 597, 29 Pac. 61, 1892; People v. Bemmerly, 98 Cal. 299, 33 Pac. 263 1893; People v. Ward, 105 Cal. 335, 38 Pac. 945, 1894; People v. Findley, 132 Cal. 301, 64 Pac. 472, 1901; People v. Suesser, 142 Cal. 354, 75 Pac. 1093, 1904 [Conn.] Barber’s Appeal, 63 Conn, 393, 22 L.R.A. 90, 27 Atl, 973, 1893. [Del.] Armstrong v. Timmons, 3 Harr. (Del.) 342, 1841; State v. Reidell, 9 Houst. (Del.) 470, 14 Atl. 550, 1888; State v. Danby, Houst. Crim. Rep. (Del.) 166; State v. Pratt, Houst. Crim. Rep. (Del.) 249. [Fla.] Davis v. State, 44 Fla. 32, 32 So. 822, 1902. [Ga.] Holsenbake v. State, 45 Ga. 43, 1872; Danforth v. State, 75 Ga. 614, 58 Am. Rep. 480, 1885. [Idaho] People v. Waters, 1 Idaho, 560, 1874; State v. Wetter, 11 Idaho, 433, 83 Pac. 341, 1905. [Il.] Menkins v. Lightner, 18 Ill. 282, 1857; Fisher v. People, 23 Ill. 283, 1859; Lilly v. Waggoner, 27 Ill. 395, 1862; Lindsey v. Lindsey, 50 Ill. 79, 99 Am. Dee. 489, 1869; Guild v. Hull, 127 Ml. 523, 20 N. E. 665, 1889; Langdon v. People, 133 Ill. 382, 24 N. E. 874, 1890; Montag v. People, 141 Ill. 75, 30 N. E. 337, 1892; Argo v. Coffin, 142 Ill. 368, 34 Am. St. Rep. 86, 32 N. E. 679, 1892. [Ind.] Achey v. Stephens, 8 Ind. 411, 1856; Dear-: mond v. Dearmond, 12 Ind. 455, 1859; Rush v. Megee, 36 Ind. 69, 1877; Guetig v. State, 66 Ind. 94, 32 Am. Rep. 99, 1879; Sanders v. State, 94 Ind. 147, 1833. [Ky.] Kriel v. Com. 5 Bush, 362, 1869; Moore v. Com. 92 Ky. 630, 18 S. W. 833, 1892. [La.] Chandler v. Barrett, 21 La. Ann. 58, 99 Am. Dec. 701, 1869; State v. Scott, 49 La. Ann. 253, 36 L.R.A. 721, 21 So, 271, 10 Am. Crim. Rep. 585, 1897. [Me.] Hovey v. Chase, 52 Me. 304, 83 Am. Dec. 514, 1863; FITNESS OF OFFENDER TO COMMIT OFFENSE. 105. Hovey v. Hobson, 55 Me. 256, 280, 1867; Darby v. Hayford, 56 Me. 246, 249, 1868; Huff v. Curtis, 65 Me. 287, 1876. [Md.] Higgins v. Carlton, 28 Md. 115, 92 Am. Dec. 666, 1868. [Mass.] Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, 1844; Com. v. Eddy, 7 Gray, 583, 1856; Com. v. Heath, 11 Gray, 303, 1858. [Minn.] Bonfanti v. State, 2 Minn. 123, Gil. 99, 1858. [Miss.] Mullins v. Cot- trell, 41 Miss, 291, 1866; Cunning- ham v. State, 56 Miss. 269, 31 Am. Rep. 360, 1879; Ricketts v. Jolliff, 62 Miss. 440, 1884. [Mo.] State v. Redemeier, 71 Mo. 173, 36 Am. Rep. 462, 1879; State v. Schaefer, 116 Mo. 96, 22 S. W. 447, 1883. [Nev.], State v. Hartley, 22 Nev. 342, 28 L.R.A. 338, 40 Pac. 372, 1895. [N. H.] Perkins v. Perkins, 39 N. H. 163, 1859; Young v. Stevens, 48 N. H. 1383, 97 Am. Dec. 592, 2 Am. Rep. 202, 1868. [N. J.] State v. Spencer, 21 N. J. L. 202, 1849; Den ex dem. Trumbull v. Gibbons, 22 N. J. L. 117,. 51 Am. Dec. 253, 1849; Graves v. State, 45 N. J. L. 347, 46 Am. Rep. 778, 1883; State v. Hill, 65 N. J. L.. 626, 47 Atl. 814, 12 Am. Crim. Rep. 191, 1901. [N. Y.] Brotherton v. People, 75 N. Y. 159, 3 Am. Crim.. Rep. 218, 1878; Jackson ex dem. Van Dusen v. Van Dusen, 5 Johns. 144, 4 Am. Dec. 330, 1809; People v. Kirby, 2 Park. Crim. Rep. 28, 1823. [N. C.] State v. Starling, 51 N. C. (6 Jones, L.) 366, 1859; State v. Brandon, 53 N. C. (8 Jones, L.) 463, 1860. [Ohio] Loeffner v. State, 10 Ohio St. 598, 1840. [Pa.] Grabill v. Barr, 5 Pa. 441, 47 Am. Dec. 418. 1846; Werstler v. Custer, 46 Pa. 502, 1864; Lynch v. Com. 77 Pa, 2065,, 1 Am. Crim. Rep. 283, 1874; Egbert v. Egbert, 78 Pa. 326, 1875; Coyle v. Com. 100 Pa. 573, 45 Am. Rep. 397, 1882; Com. v. Woodley, 166 Pa. 463, 31 Atl. 202, 1895. [S. C.] Lee- v. Lee, 4 M’Cord, L. 183, 17 Am. Dec. 722, 1827; State v. Starke, 1 Strobh. L. 479, 1846; State v. Cole- man, 20 S. C. 441, 1883; State v.. Levelle, 34 8S. C. 120, 27 Am. St. Rep. 799, 13 S. E. 319, 1891. [Tenn.] King v. State, 91 Tenn. 617, 20 S. W.. 169, 1892. [Tex.] Carter v. State,. 12 Tex. 506, 62 Am. Dec. 539, 1854; Webb v. State, 5 Tex. App. 596, 1879; Massengale v. State, 24 Tex. 106 CRIMINAL LAW. [§ 78 The finding of an inquisition of lunacy, which is admissible, shifts the burden.® App. 181, 5 S. W. 650, 6 S. W. 35, 1887; Rather v. State, 25 Tex. App. 623, 9 S. W. 69, 1888; Smith v. State, 31 Tex. Crim. Rep. 14, 19 8. W. 252, 1892; Nugent v. State, 46 ‘Tex. Crim. Rep. 67, 80 S. W. 84, 1904; Wooten v. State, 51 Tex. Crim. Rep. 428, 102 S. W. 416, 1907. [Utah] People v. Calton, 5 Utah, 451, 16 Pac. 902, 1888. [Vt.] State v. Kelley, 74 Vt. 278, 52 Atl. 434, 1900. [Va.] Boswell v. Com. 20 Gratt. 860, 1871; Miller v. Rutledge, 82 Va. 863, 1 S. E. 202, 1887. [W. Va.] Hiett v. Shull, 36 W. Va. 563, 15 S. E. 146, 1892; Buckey v. Buckey, 38 W. Va. 168, 18 S. E. 383, 1893; Eakin v. Hawkins, 52 W. Va. 124, 43S. E. 211, 1902. Burden of proof to rebut presump- tion of sanity rests on party dis- puting or denying sanity. [Ill.] Scott v. Scott, 212 Ill. 597, 603, 72 N. E. 710, 1904; Owen v. Crum- baugh, 228 Ill. 380, 405, 118 Am. St. Rep. 442, 461, 81 N. E. 1044, 1052, 10 A. & E. Ann. Cas. 606, 1907. [Nev.] State v. Waterman, 1 Nev. 543, 1865; State v. Lewis, 20 Nev. 338, 22 Pac. 241, 8 Am. Crim. Rep. 574, 1889; State v. Hartley, 22 Nev. 342, 28 L.R.A. 33, 41, 40 Pac. 372, 375, 1895. [Okla.] Maas v. Terri- tory, 10 Okla. 718, 53 L.R.A. 814, 815, 63 Pac, 961, 1901. [R. I.] State v. Quigley, 26 R. I. 270, 67 L.R.A. 322, 327, 58 Atl. 908, 3 A. & E. Ann. Cas. 920, 1904. [Utah] People v. Dillon, 8 Utah, 92, 97, 30 Pac. 152, 1892. [Wash.] State v. Clark, 34 ‘Wash. 485, 494, 101 Am. St. Rep. 1006, 76 Pac. 98, 101, 1904. See notes in 36 L.R.A. 721, and 39 L.R.A. 739. Insanity at a time prior to crime complained of being shown, the burden is on the prosecution to show accused afterwards became sane, and was sane at the time of the com- mission of the act complained of. Wooten v. State, 51 Tex. Crim. Rep. 428, 102 S. W. 416, 1907. As to insanity being an independ- ent and affirmative defense, see State v. Lewis, 20 Nev. 333, 22 Pac. 241, 8 Am. Crim. Rep. 574, 1889; also note in 39 L.R.A. 739. As to test of insanity, see notes in 63 Am. St. Rep. 84; 63 Am. St. Rep. 87; 63 Am. St. Rep. 104; 76 Am. St. Rep. 89; and 37 L.R.A. 262. —Preponderance of evidence neces- sary to establish insanity is the rule laid down by some of the cases. See Ford v. State, 71 Ala. 385, 393, 1882; State v. Clark, 34 Wash. 485, 101 Am, St. Rep. 1006, 76 Pac. 98, 1904. But this is not the law. Any evi- dence sufficient to raise a reasonable doubt in the minds of the jurors is sufficient to shift the burden of proof in a criminal case, and require the state to prove sanity. See People v. Dillon, 8 Utah, 92, 97, 30 Pac. 152, 1892. 3 Wheeler v. State, 34 Ohio St. 394, 32 Am. Rep. 372, 1878. See Banker v. Banker, 63 N. Y. 409, 1875; McGinnis v. Com. 74 Pa. 245, 1873; Lancaster County Nat. Bank v. Moore, 78 Pa. 407, 21 Am. Rep. 24, 1875; but evidence not admissi- ble as to a transaction occurring prior to the inquest determining the status, although the finding fixes the insanity from a time anterior to the transaction. See also Wharton, Crim. Ev. § 366, 7 Enc. Ev. p. 477; note in 21 Am. Rep. 29-35. Inquest of lunacy is an adjudi- cation concerning the status of the person by a court clothed with juris- diction, and, except as otherwise provided by statute, the record im- ports absolute verity. Shroyer v. Richmond, 16 Ohio St. 455, 1866; Wheeler v. State, 34 Ohio St. 394, 32 Am. Rep. 372, 1878. —Extra judicially taken, not ad- missible in evidence. See [Eng.] Sergeson v. Sealy, 2 Atk. 412, 9 Mod. 370; Faulder v. Silk, 3 Campb. 126, 2 Madd. Ch. 378, 13 Revised Rep. 771. [Mass.] Stokes v. Dawes, 4 Mason, 268, Fed. Cas. No. 13,477, 1826. [N. J.] Den ex dem. Aber v. Clark, 10 N. J. L. 217, 18 Am. Dee. 417, 1828. —Presumptive evidence only as § 79] FITNESS OF OFFENDER TO COMMIT OFFENSE. 107 § 79. Conflicting theories as to amount of evidence requisite to prove insanity. Four theories? have been pro- pounded as to the degree of evidence requisite to justify a con- viction on the issue of insanity. The first is that insanity, as a defense of confession and avoid- ance, must be proved beyond reasonable doubt; and that unless this be done, the jury, the case of the prosecution being other- wise proved, are to convict.” This is expressed by Hornblower, Ch. J., as follows: “The proof of insanity at the time of com- mitting the act ought to be as clear and satisfactory, in order to acquit him on the ground of insanity, as the proof of com- mitting the act ought to be, to find a sane man guilty.* Several English authorities are cited to the same effect.* The second is that the jury are to be governed by the pre- ponderance of evidence,® and are to require insanity to be made against persons not parties or privies. Lucas v. Parsons, 23 Ga. 267, 1857; Yauger v. Skinner, 14 N. J. Eq. 389, 1862; Den ex dem. Aber v. Clark, 10 N. J. L. 217, 18 Am. Dec. 417, 1828. Or as to mental condition prior to the inquest. Banker v. Banker, 63 N. Y. 409, 1875. —Prima facie evidence on question of sanity or insanity, only. 7 Enc. Ev. p. 477, and authorities cited. But is such evidence of status at the time of inquest, only. Emery v. Hoyt, 46 Il. 258, 1867; Rider v. Miller, 86 N. Y. 507, 1881; Willis v. Willis, 12 Pa. 159, 1849. See 7 Enc. Ev. p. 479. Not prima facie evidence where party has been on parole for two years or more. Hempton v. State, 111 Wis. 128, 86 S. W. 596, 12 Am. Crim. Rep. 657, 1901. 1See Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20, 1879; Danforth v. State, 75 Ga. 614, 58 Am. Rep. 480, 1885. See also note in 35 Am. Rep. 32- 40. 2 Danforth v. State, 75 Ga. 614, 58 Am. Rep. 480, 1885; State v. DeRance, 34 La. Ann. 186, 188, 44 Am. Rep. 426, 428, 1882. 3 State v. Spencer, 21 N. J. L. 202, 1849. In Graves v. State, 45 N. J. L. 208, 4 Am. Crim. Rep. 386, 1883, however, the court held that pre- ponderance was to determine. See Wharton, Crim. Ev. § 729, 7 Enc. Ev. p. 464. 41 Wharton & S. Med. Jur. §§ 225, 226. 5[Ala.] Parsons v. State, 81 Ala. 577, 68 Am. Rep. 193, 2 So. 854, 7 Am. Crim. Rep. 266, 9 Crim. L. Mag. 812, 1887; Martin v. State, 119 Ala. 1, 25 So. 258, 1898. [Ark.] Mce- Kenzie v. State, 26 Ark. 334, 1870; Coates v.'State, 50 Ark. 330, 7 S. W. 304, 7 Am. Crim. Rep. 585, 1887. [Cal.] People v. Myers, 20 Cal. 518, 1862; People v. Coffman, 24 Cal. 230, 1864; People v. Ferris, 55 Cal. 588, 591, 1880; People v. Messersmith, 57 Cal. 575, 1881; People v. Pico, 62 Cal. 50, 1882; People v. Eubanks, 86 Cal. 295, 24 Pac, 1014, 1890; People v. Travers, 88 Cal. 233, 26 Pac. 88, 1891; People v. McNulty, 98 Cal. 427, 26 Pac. 597, 29 Pac. 61, 1892, writ of error dismissed, 149 U. S. 645, 37 L. ed. 882, 13 Sup. Ct. Rep. 959, 1893; People v. Ward, 105 Cal. 835, 38 Pac. 945, 1894; People v. Allender, 117 Cal. 81, 48 Pac. 1014, 1897 (denying rule in Davis v. Unit- ed States, 160 U. S. 469, 4 L. ed. 499, 16 Sup. Ct. Rep. 353, 1895; People v. Hettick, 126 Cal. 425, 58 Pac. 918, 1899; People v. Suesser, 142 Cal. 354, 75 Pac. 1098, 1904. [Conn.] State v. Hoyt, 46 Conn. 330, 108 1878. [Del] State v. Cole, 2 Penn. (Del.) 344, 45 Atl. 391, 1899. [Ga.] Ryder v. State, 100 Ga. 528, 62 Am. St. Rep. 334, 38 L.R.A. 721, 28 S. E. 246, 1897. [Idaho] People v. Walter, 1 Idaho, 386, 391, 1871; State v. Larkins, 5 Idaho, 200, 46 Pac. 945, 1897. [Iowa] State v. Trout, 74 fowa, 545, 7 Am. St. Rep. 499, 38 N. W. 405, 1888; State v. Thiele, 119 Iowa, 659, 94 N. W. 256, 1903. [Ky.] Moore v. Com. 92 Ky. 630, 18 S. W. 833, 1892. [La.] State v. Lyons, 113 La. 959, 989, 37 So. 900, 1904. [Me.] State v. Parks, 93 Me. 208, 44 Atl. 899, 1899. [Mass.] Com. v. Eddy, 7 Gray, 583, 1856. [Minn.] State v. Grear, 29 Minn. 221, 18 N. W. 140, 1882. [Mo.] State v. Bell, 186 Mo. 120, 37 S. W. 823, 1896. [Nev.] State v. Lewis, 20 Nev. 333, 22 Pac. 241, 8 Am. Crim. Rep. 574, 1889. [N. J.] Graves v. States, 45 N. J. L. 347, 46 Am. Rep. 778, 1883. [Ohio] Kelch v. State, 55 Ohio St. 146, 39 L.R.A. 737, 60 Am. St. Rep. 680, 45 N. E. 6, 1896. [Pa.] Com. v. Woodley, 166 Pa. 4638, 31 Atl. 202, 1895. [R. I.] State v. Ballou, 20 R. I. 612, 40 Atl. 861, 1898; State v. Quigley, 26 R. I. 271, 67 L.R.A. 322, 58 Atl. 908, 3 A. & E, Ann. Cas. 920, 1904. [S. C.] State v. Alexander, 30 S. C. 74, 14 Am. St. Rep. 879, 8 S. E. 440, 1888. [Tex.] Lovegrove v. State, 31 Tex. Crim. Rep. 491, 21 S. W. 191, 1893; Car- lisle v. State, — Tex. Crim. Rep. —, 56 S. W. 365, 1900. [Utah] People v. Dillon, 8 Utah, 92, 30 Pac. 150, 1892. [Va.] Boswell v. Com. 20 Gratt. 860, 875, 1871; Dejarnette v. Com. 75 Va. 867, 1881. |Wash.] State v. Clark, 34 Wash. 493, 101 Am. St. Rep. 1006, 76 Pac. 101, 1904. [W. Va.] State v. Strauder, 11 W. Va. 745, 823, 27 Am. Rep. 606, 1877; State v. Welch, 36 W. Va. 690, 15 S. E. 419, 1892. ' Burden of proving insanity by preponderance of evidence is cast on party setting it up. See [Ala.] Bos- well v. State, 63 Ala. 307, 35 Am. Rep. 20, 1879; Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193, 2 So. 854, 7 Am. Crim. Rep. 266, 1887. [Cal.] People v. Messersmith, 61 Cal. 246, 1882; People v. Travers, 88 Cal. 233, 26 Pac. 88, 1891; People v. MeNully, 93 Cal. 427, 26 CRIMINAL LAW. [§ 79 Pac. 597, 29 Pac. 61, 1892; People v. Ward, 105 Cal. 335, 88 Pac. 945, 1894. [Fla.] Armstrong v. State, 27 Fla. 366, 26 Am. St. Rep. 72, 9 So. 1, 1891. [Ga.] Carter v. State, 56 Ga. 463, 1876; Danforth v. State, 75 Ga. 614, 627, 58 Am. Rep. 480, 482, 1885. [Iowa] State v. Trout, 74 Towa, 545, 7 Am. St. Rep. 499, 38 N. W. 405, 1888. [Mo.] State v. McCoy, 34 Mo. 531, 86 Am. Dec. 121, 1864; State v. Redemeier, 71 Mo. 173, 36 Am. Rep. 462, 1879; State v. Williamson, 106 Mo. 162, 17 8S. W. 172, 1891. [Mont.] State v. Peel, 23 Mont. 358, 75 Am. St. Rep. 529, 59 Pac. 175, 1899. [Nev.] State v. Lewis, 20 Nev. 333, 22 Pac. 241, 8 Am. Crim. Rep. 574, 1889. [N. C.} State v. Payne, 86 N. C. 609, 1882. [Pa.] Ortwein v. Com. 76 Pa. 414, 421, 18 Am. Rep. 420, 1 Am. Crim. Rep. 297, 1875; Lynch v. Com. 77 Pa. 205, 1 Am. Crim. Rep. 283, 1875; Coyle v. Com. 100 Pa. 573, 45 Am. Rep. 397, 1882; Com. v. Gerade, 145 Pa. 289, 27 Am. St. Rep. 689, 22 Atl. 464, 1891. [S. C.] State v. Bundy, 24 8. C. 489, 58 Am. Rep. 262, 1885. [Tex.] Johnson v. State, 10 Tex. App. 571, 1881; Jones v- State, 18 Tex. App. 1, 1882. [Va.] Baccigalupo v. Com. 33 Gratt. 807, 36 Am. Rep. 795, 1880, See notes in 83 Am. Dec. 239; 97 Am. Dec. 176; and 44 Am. Rep. 436. Competency of witness to testify as to insanity is within discretion of trial court to determine. [Cal.] People v. Pico, 62 Cal. 50, 1882; People ex rel. Clough v. Levy, 71 Cal. 618, 12 Pac. 791, 1887; Whee- lock v. Godfrey, 100 Cal. 578, 35 Pac. 317, 1893; People v. Lane, 101 Cal. 513, 36 Pac. 16, 1894; People v. Schmitt, 106 Cal. 48, 39 Pac. 204, 1895; Re Wax, 106 Cal. 348, 39 Pac. 624, 1895; People v. McCarthy, 115 Cal. 255, 46 Pac. 1073, 1896; Re McKenna, 143 Cal. 580, 77 Pac. 461, 1904. [N. D.] State v. Barry, 11 N. D. 428, 92 N. W. 809, 1902. [Or.] State v. Hanson, 25 Or. 391, 85 Pac. 976, 36 Pac. 296, 1894. —Evidence of acts, conduct, and statements of accused, as well before as after the homicide, are admissible to show mental condition. See State v. Lewis, 20 Nev. 333, 22 Pac. 241, 8 Am. Crim. Rep. 574, 1889; § 79) out beyond reasonable doubt.$ FITNESS OF OFFENDER TO COMMIT OFFENSE. 109 This view is now generally accepted in England;7 and is maintained in Maine, ® in Massa- chusetts,® in Pennsylvania,’ in Ohio,” in Michigan," in Minnesota, French v. State, 938 Wis. 325, 338, ‘67 N. W. 710, 10 Am. Crim. Rep. 606, 1896. —A medical expert upon the ques- tion of sanity or insanity need not give all the details upon which his opinion is based, however, as the opinion sometimes depends upon the looks and gestures connected with acts, conduct, or conversation, which ‘would be difficult if not impossible for the witness intelligently to de- scribe. See State v. Lewis, 20 Nev. 333, 22 Pac. 241, 8 Am. Crim. Rep. 574, 1889; also note in 39 L.R.A. 320. A nonexpert witness in a criminal prosecution, who knew the defendant for about four months prior to the ‘criminal act, and saw him every day during the latter part of that time, and sat at the same table and ate with him once or twice, and noticed him and observed his manner of ‘speech and conversation, and saw him the evening before the act, and went with him to a neighboring vil- lage on the morning after it, and had considerable conversation with him on the way, is qualified to form and express an opinion as to his sanity or insanity. See State v. Lewis, 20 Nev. 338, 22 Pac. 241, 8 Am. Crim. Rep. 574, 1889; also note in 38 L.R.A. 731. Proof may be taken from testi- mony for prosecution. Boswell v. Com. 20 Gratt. 860, 1871; State v. ‘Strauder, 11 W. Va. 745, 27 Am. Rep. 606, 1877. 6[Ala.] Gunter v. State, 83 Ala. ‘96, 3 So. 600, 1887; Maxwell v. State, 89 Ala. 150, 7 So. 824, 1889. [Fla.] Armstrong v. State, 30 Fla. 170, 17 L.R.A. 484, 11 So. 618, 1892. [Ind.] Flake v. State, 121 Ind. 433, 16 Am. St. Rep. 408, 23 N. E. 278, 1890. [Mass.] Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, 1843; Com. v. Eddy, 7 Gray, 583, 1857. [Ohio] Loeffner v. State, 10 Ohio St. 598, 1860. [Pa.] Com. v. Gerade, 145 Pa. 289, 27 Am. St. Rep. 689, 22 in Virginia," in West Virginia,” 48 in North Carolina, Atl. 464, 1891. [Tex.] McLeod v. State, 31 Tex. Crim. Rep. 331, 20 S. W. 749, 1892. Beyond reasonable doubt.—EHrror to instruct insanity must be proved beyond a reasonable doubt. People v. Coffman, 24 Cal. 236, 1864. [Fed.] German v. United States, 57 C. C. A. 128, 120 Fed. 666, 1903. [N. Y.] People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642, 1857. 7See Reg. v. Layton, 4 Cox, C. C. 149, 1849; Reg. v. Higginson, 1 Car. & K. 130, 1843. 8 State v. Lawrence, 57 Me. 574, 1868. 8Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, 1843; Com. v. Eddy, 7 Gray, 583, 1857; Com. v. Heath, 11 Gray, 303, 1857. 10 Ortwein v. Com. 76 Pa. 414, 18 Am. Rep. 420, 1 Am. Crim. Rep. 297, 1875. See Meyers v. Com. 83 Pa. 131, 1876; Laros v. Com. 84 Pa. 200, 1877; Sayres v. Com. 88 Pa. 291, 1879; Nevling v. Com. 98 Pa. 322, 1881; Coyle v. Com. 100 Pa. 573, 45 Am. Rep. 397, 1882; Com. v. Winnemore, 1 Brewst. (Pa.) 356, 1867; Com. v. Haggerty, Lewis, Crim. Law, 402. Exacting “clearly preponderating evidence” is error. Ibid. 11 Baccigalupo v. Com. 33 Gratt. 807, 36 Am. Rep. 795, 1880. 12State v. Strauder, 11 W. Va. 747, 27 Am. Rep. 606, 1877. 13 Loeffner v. State, 10 Ohio St. 598, 1860; Bond v. State, 23 Ohio St. 349, 1872; Bergin v. State, 31 Ohio St. 111, 1875. 14People v. Finley, 38 Mich. 482, 1878. 15 State v. Gut, 18 Minn. 341, Gil. 315, 1867; State v. Grear, 28 Minn. 426, 41 Am. Rep. 296, 10 N. W. 472, 1881. 16 State v. Starling, 51 N. C. (6 Jones L.) 366, 1858; State v. Bran- don, 53 N. C. (8 Jones, L.) 463, 1860. See State v. Payne, 86 N. C. 609, 1882. 110 CRIMINAL LAW. [§ 79 in South Carolina, '” in Alabama,” in Georgia,” in Louisiana,” in Texas,”* in California,” in Iowa,”* in. Idaho,™ and in Ar- kansas.” A third view is that in such an issue the prosecution must prove sanity beyond reasonable doubt.”® Thus, in a case in Michigan, in 1869, while it was admitted that sanity was the normal condition of the mind, and that the prosecution might rest upon the presumption that the accused was sane when he committed the act, until it was overcome by the opposite case, it was nevertheless determined that when any evidence which tends to overthrow that presumption is given, the jury are to examine, weigh, and pass upon it, with the understand- ing that, although the initiative in presenting the evidence is 17 State v. Stark, 1 Strobh. L. 479, 1846. 18 Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20, 1879; Ford v. State, 71 Ala. 385, 1882. 19 Carter v. State, 56 Ga. 463, 1876. 20State v. Coleman, 27 La. Ann. 691, 1875. 21, Jones v. State, 13 Tex. App. 1, 1883. See Webb v. State, 9 Tex. App. 496, 1880; King v. State, 9 Tex. App. 515, 1880. 22 People v. Coffmann, 24 Cal. 230, 1863; People v. Hamilton, 62 Cal. 397, 1882; modifying People v. Wreden, 59 Cal. 392, 1881. See People v. Bell, 49 Cal. 486, 1875; People v. Messersmith, 61 Cal. 246, 1882. 23 State v. Felter, 32 Io-a, 49, 1869. 24 People v. Walter, 1 Idaho, 386, 1875. 25 McKenzie v. State, 26 Ark. 334, 1872. As to Indiana, see Mitchell v. State, 63 Ind. 276, 1878. 26 [Fed.] Hotema v. United States, 186 U. 8. 418, 418, 46 L. ed. 1225, 1228, 22 Sup. Ct. Rep. 895, 897, 1902; German v. United States, 57 C. C. A. 128, 120 Fed. 666, 1903. [Ala.] Henson v. State, 112 Ala. 47, 21 So. 80, 1895. [Idaho] State v. Shuff, 9 Idaho, 115, 72 Pac. 664, 13 Am, Crim. Rep. 448, 1903. [Fla.] Armstrong v. State, 30 Fla. 170, 17 L.R.A. 484, 11 So. 618, 1892. [Tl] Jamison v. People, 145 Ill. 357, 34 N. E, 486, 1893. [Ind.] Plake v. State, 121 Ind. 433, 16 Am. St. Rep. 408, 23 N. E. 273, 1890. [Kan.] State v. Nixon, 32 Kan. 205, 5 Pac. 159, 5 Am. Crim. Rep. 307, 1884. [La.] State v. Seott, 49 La. Ann. 253, 36 L.R.A. 721, 21 So, 271, 10 Am. Crim. Rep. 585, 1897. [Mass.] Com. v. Johnson, 188 Mass. 382, 74 N. E. 941, 1905. [Mich.] People v. Finley, 38 Mich. 482, 1878. [Miss.} Ford v. State, 73 Miss. 734, 35 L.R.A. 117, 19 So. 665, 1896 [Mont.] State v. Brooks, 23 Mont. 168, 57 Pac. 1044, 1899; State v. Peel, 23 Mont. 358, 75 Am. St. Rep. 529, 59 Pac. 169, 1899. [Neb.] Furst v. State, 31 Neb. 408, 47 N. W. 1116, 1891. [N. H.] State v. Jones, 50 N. H. 369, 9 Am. Rep. 242, 1871, [N. M.] Aguilar v. Territory, 8 N. M. 506, 46 Pac. 345, 1896; Terri- tory v. Lucero, 8 N. M. 558, 46 Pac. 23, 1896. [N. Y.] Moett v. People, 85 N. Y. 378, 1881. [Tenn.] King v. State, 91 Tenn. 617, 20 S. W. 169, 1892. [Wis.] Revoir v. State, 82 Wis. 295, 52 N. W. 84, 1892. See, also, note in 36 L.R.A. 721,— 741 Burden of proving accused’s sanity rests on plaintiff. Davis v. United States, 160 U. S. 469, 40 L. ed. 499, 16 Sup. Ct. Rep. 358, 1895. Proof of sanity beyond reasonable: doubt before conviction can be had, as to doctrine. Danforth v. State, 75 Ga. 614, 58 Am. Rep. 480, 1885. § 79] FITNESS OF OFFENDER TO COMMIT OFFENSE. 118 taken by the defense, the prosecution is bound to establish this part of the case as fully as it is bound to establish other essen- tial incidents of guilt.” Similar views have been maintained by other American courts; and it has been not infrequently ruled that where there is reasonable doubt as to 27 People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162, 1868. In New York the tendency in the main is to sustain the dis- tinctions of the text, and to hold that, while a reasonable doubt as to sanity is sufficient to require an acquittal in all cases in which sanity is part of the case of the prosecution, yet, when insanity is set up by the defense for the pur- pose of establishing general non- accountability, and of placing the defendant under permanent seques- tration as a dangerous lunatic, such insanity must be established by a preponderance of proof. See People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642, 1858; Walter v. People, 32 N. Y. 147, 1865; Flanagan v. People, 52 N. Y¥. 467, 11 Am. Rep. 731, 1873; Brotherton v. People, 75 N. Y. 159, 3 Am. Crim. Rep. 218, 1874; O’Con- nell v. People, 87 N. Y. 377, 41 Am. Rep. 379, 1882; Walker v. People, 88 N. Y. 81, 1882. These cases are considered in de- tail in Wharton, Crim. Ev. 9th ed. § 338. In Indiana, same as in Missouri. See McDougal v. State, 88 Ind. 24, 1882. See next paragraph. In Missouri the cases may be harmonized by the application of the above distinction. See State v. Klinger, 43 Mo. 127, 1869; State v. Hundley, 46 Mo. 414, 1871; State v. Smith, 53 Mo. 267, 1873; State v. Simms, 68 Mo. 305, 1878; State v. Redemeier, 71 Mo. 173, 36 Am. Rep. 462, 1879. °8 As taking this position may be cited; [Fed.] United States v. Lan- caster, 7 Biss. 440, Fed. Cas. No. 15555, 1875. [Ala.] State v. Marler, 2 Ala. 43, 36 Am. Dec. 398, 1841. [Conn.] State v. Johnson, 40 Conn. 139, 1873. [Fla.] Armstrong v. State, 30 Fla. 170, 17 L.R.A. 484, 11 sanity, the jury must acquit. So. 618, 1892. [Ill] Fisher v. People, 23 Ill. 283, 1859; Hopps v. People, 31 Ill. 385, 883 Am. Dec. 231, 1862; Chase v. People, 40 Ill. 352, 1865; Hornish v. People, 142 Ill. 620, 18 L.R.A. 237, 32 N. E. 677, 1892. [Ind.] Polk v. State, 19 Ind. 170, 81 Am. Dec. 382, 1862; Bradley v. State, 31 Ind. 492, 1869; McDougal v. State, 88 Ind. 24, 1882. [Kan.} State v. Crawford, 11 Kan. 32, 1873. [Ky.] Smith v. Com. 1 Duv. 224, 1864; Kriel v. Com. 5 Bush, 362, 1869; Ball v. Com. 81 Ky. 662, 1884. [La.] State v. De Rance, 34 La. Ann. 186, 44 Am. Rep. 426, 1882. [Miss.] Cunningham vy. State, 56 Miss. 269, 31 Am. Rep. 360, 1878. ([Nev.] People v. Waterman, 1 Nev. 543, 1865. [Neb.] Wright v. People, 4 Neb. 407, 1876. [N. H.] State v. Bartlett, 43 N. H. 224, 80 Am. Dec. 154, 1861; State v. Jones, 50 N. H. 369, 9 Am. Rep. 242, 1870. [N. J.] Graves v. State, 45 N. J. L. 203, 4 Am. Crim. Rep. 386, 1888. [S. C.] State v. McIntosh, 39 S. C. 97, 17 S. E. 446, 1892. [Tenn.] Lawless v. State, 4 Lea, 179, 1880. [Tex.] Webb v. State, 9 Tex. App. 490, 1880 [Vt.] State v. Patterson, 45 Vt. 308, 12 Am. Rep, 200, 1873. [Wis.] Revoir v. State, 82 Wis. 295, 52 N. W. 84, 1892. In Arkansas it is ruled by a ma- jority of the court (Eaken, J., dis- senting) that the burden is on the defendant to “clearly prove” in- sanity. Casat v. State, 40 Ark. 511, 1881. In South Carolina it is held, fol- lowing the distinction of the text, that where the issue is at common law, whether there is capacity to commit crime, this capacity must be proved beyond reasonable doubt by the prosecution. Coleman v. State, 20 8S. C. 441, 1882. 112 CRIMINAL LAW. [§ 79 A fourth view is to the effect that where the defense of insanity is set up in the nature of a plea of confession and avoidance, if the evidence is equally balanced as to sanity and insanity, the general presumption of sanity does not prevail, but that if, on all the evidence, there is a reasonable doubt as to the sanity of the accused, he is entitled to the benefit of that doubt, and must be acquitted.” § 80. —Preponderance of proof theory. It may be said that the position that unless there be a preponderance of proof of insanity, there can be no acquittal on the ground of insanity, is inconsistent with the principle that if there is reasonable doubt of guilt, there can be no conviction. But there is no such inconsistency. Insanity, as a defense in criminal prosecution, has two distinct aspects, subject to very different rules. When the question, as in a charge of murder in the first degree, is whether there was a particular intention in the defendant’s mind at a particular time, then, if such intention cannot be proved beyond reasonable doubt, there must be an acquittal of this grade of murder. An indictment, for instance, is found in Pennsylvania for murder in the first degree. By the law of that state there can be no conviction of murder in the first degree, unless it be proved that the defendant, at the time of the homicide, specifically intended to take the deceased’s life. We will assume a case, however, in which the defendant’s mind, at the time of the litigated event, was so affected by disease that it is questionable whether he was then capable of forming a specific intent to take life. Now, in such a case, if there be reasonable doubt whether the defendant was capable of forming a specific intent to take life, the jury should be instructed (and this has been so done in several cases in Penn- sylvania) to acquit of murder in the first degree, and convict of 29[Fed.] Davis v. United States, 59 Pac. 169, 1899. [N. M.] Aguilar 160 U. S. 469, 40 L. ed. 499, 16 Sup. Ct. Rep. 353, 1895. See Hotema v. United States, 186 U. S. 413, 418, 46 L. ed. 1225, 1228, 22 Sup. Ct. Rep. 895, 1902; German v. United States, 57 C. C. A. 129, 120 Fed. 666, 1908. [Ala.] Henson v. State, 112 Ala. 47, 21 So. 79, 1895. [Mont.] State v. Brooks, 23 Mont. 163, 57 Pac. 1038, 1899; State v. Peel, 23 Mont. 358, 374, 75 Am. St. Rep. 529, v. Territory, 8 N. M. 506, 46 Pac. 342, 1896; Territory v. Lucero, 8 N. M. 557, 46 Pac. 18, 1896. [Pa.] Com. v. Barner, 199 Pa. 344, 49 Atl. 60, 1901. Reasonable doubt, doctrine of, not applicable to defense of insanity in California. People v. Kernaghan, 72 Cal. 609, 14 Pac. 566, 1887; People v. Ward, 105 Cal. 335, 38 Pac. 945, 1894. § 80] FITNESS OF OFFENDER TO COMMIT OFFENSE. 118 murder in the second degree, or of manslaughter.! The same rule applies to all other cases in which it is incumbent on the prosecution to prove a sane intent on the part of the defendant; in which cases such intent must be proved beyond reasonable doubt. It is otherwise, however, where insanity is set up, not to qualify the proof of intent, but as a bar to criminal procedure. In the former case it goes to the question of guilt or innocence ; in the latter case it goes to the amenability or nonamenability of the defendant to criminal jurisdiction. In the former case the defense says, “not guilty of specific act charged;” in the latter case it says, “not the subject of penal discipline.” The plea of insanity, when thus offered in bar of the prosecution, stands, as do analogous pleas of nonamenability, on the ground of want of jurisdiction.* This brings us to the rightful solu- tion of this vexed issue. The test of “reasonable doubt” only applies to questions of “guilt” or “innocence.” The defense of insanity, as a bar, like other defenses based on nonamena- bility to penal discipline, is not one of “guilt” or “innocence.” It is not one, therefore, when offered in bar of an indictment, to which the test of “reasonable doubt” applies. 1Supra, § 70. 2Nonamenability to tribunal.—We may cite, as an illustration, the case of People v. McLeod, 1 Hill, 377, 25 Wend. 483, 37 Am. Dec. 328, 1841, where, in order to sustain nonamena- bility to the New York tribunals, the defendant’s counsel maintained that the defendant, in the transaction which was the subject of the indict- ment, was acting as a servant of the British government, under the direct order of that government. If this had been sustained as a matter of fact, then the conclusion would have been, as a matter of law, that our quarrel was with the British government, and not with McLeod. But if the question of fact in such a case should be disputed, no onc would claim that if there be reason- able doubt as to whether the defend- ant acted as the servant of a foreign government, he should be acquitted. What the jury would be told would be, “Here is a question of fact; if the proof satisfies you that a de- fendant was a British subject, and Crim. L. Vol. L—8. The errors acted under British orders, then he is to be remanded to his own govern- ment for discipline.” Another illustration, already no- ticed in the text, is to be found in those cases in which, on a plea of autrefois acquit, a question of fact, to be determined by a jury, arises, whether the offense of which the de- fendant was acquitted was the same as that on trial. In such a case the jury would not be told, “If you have a reasonable doubt you must find for defendant.” What they would be told is, “If you decide that there is a preponderance of proof to the ef- fect that the cases are the same, then you must so find; otherwise you must find that the cases are not the same.” See Wharton, Crim. Pl. & Pr. § 483. In neither of the cases last men- tioned does the question of guilt or innocence arise, and in neither case, if the defense be properly pleaded, would evidence to show either guilt or innocence be relevant. 114 CRIMINAL LAW. [§ 86 into which judges have been led in this respect have been er- rors arising from the defective way in which the plea is pre- sented. If it were offered specially in bar, as a preliminary issue, as it is in some jurisdictions, then no one would ques- tion that the case would go to the jury to be decided aecord- ing to the preponderance of proof. Supposing that the plea, being special (as is the plea, for instance, of autrefois acquit), should be determined against the defendant, then he would be compelled to plead over, and then, to the questions of facts arising under a plea of not guilty, the test of “reasonable doubt” would be applicable. And it would be easy to conceive of cases in which, after a verdict against the defendant on the special plea of insanity, a verdict acquitting him of the high- est grade of the offense might be had on the ground of the very insanity which was held not to be sufficient to sustain a verdict of nonamenability on the first plea. Suppose, for in- stance, that, in a case of homicide, the proof of insanity on the first trial was not sufficiently strong to transfer the defendant from the category of the sane to that of the insane, and yet that such evidence was strong enough on the second trial to raise a reasonable doubt as to whether the defendant had specifically intended to kill the deceased. In such case, though the issue of insanity had been determined on the first trial against the defendant, he should be convicted only of murder in the second degree, or of manslaughter, on the second trial, which would involve his acquittal of murder in the first degree. By maintaining this distinction we avoid the danger (incident to the application of the test of “reasonable doubt” to all issues of insanity raised in a criminal court) of committing a de- fendant as to whose sanity there is “reasonable doubt” to per- petual sequestration in an insane asylum.® 8 Walker v. People, 88 N. Y. 82, 1876, above cited, is an illustration of this danger. Walker was tried for abduction. Suppose he had been indicted for an assault, and suppose, as it has frequently been decided to be permissible, his relatives or friends, against his protest, had interposed the plea of insanity. We can imagine, in fact, many cases in which this might be a convenient way of disposing of an uncomfort- able relative or neighbor. A defend- ant of this class finds himself, when tried for some minor offense, con- fronted by a plea of insanity inter- posed in his behalf. If the view here contested be the law, the judge would have in such case but one course open to him. He would be obliged to herr the evidence, no mat- ter what ni':ht be the defendant’s protestations; and, what is more, he would be obliged to tell the jury § 81] § 81. Insanity to be inferred from conduct. FITNESS OF OFFENDER TO COMMIT OFFENSE. 115 When insanity of a permanent type is shown to have existed prior to the commission of an act, it will be inferred to have con- tinued, unless the contrary be proved, down to the time of the act.” It is otherwise, however, when the proof is of temporary or spasmodic,” mania,’ or of delirium tremens.* Evidence, therefore, of prior insane conduct and declara- if they have a reasonable doubt of the defendant’s sanity, they must find him insane. The only way to avoid this ab- surdity is to put the determination of the issue of insanity, when set up to bar amenability, on the same basis in criminal as that adopted in civil courts. In both courts the pre- sumption is that persons coming in- to courts of justice are sane, and that the burden of proof is on the parties contesting such sanity. In criminal courts, as well as in civil, the rule should be that to take a particular person out of the cate- gory of reasonable and responsible beings, and to subject him to the sequestration and restrictions im- posed by the law on adjudicated lunatics, at least a preponderance of proof of insanity should be required. The above argument is expanded by me in the Central Law Journal for May 238, 1884. The subject is discussed more fully in Wharton, Crim. Ev. §§ 338 et seq. See also 1 Crim. L. Mag. 445. 1 Wharton Crim. Ev. § 730; 7 Enc. Ev. p. 462; 1 Jarman, Wills, 2d Am. ed. 65; 1 Wharton & S. Med. Jur. §§ 61-64; [Eng.] Reg. v. Stokes, 3 Car. & K. 185, 1850; Reg. v. Layton, 4 Cox, C. C. 149, 1850; Clarke v. Cartwright, 1 Phillim. Eecl. Rep. 100. [Fed.] Hoge v. Fisher, Pet. C. C. 163, Fed. Cas. No. 6,585, 1815. [Ala.] State v. Brinyea, 5 Ala. 241, 1843. [Fla.] Armstrong v. State, 30 Fla. 170, 17 L.R.A. 484, 11 So. 618, 1892. {lll.] Langdon v. People, 133 Tll. 382, 24 N. E. 874, 1890. [Kan.] State v. Reddick, 7 Kan. 148, 1871. ([Ky.] Montgomery v. Com. 88 Ky. 509, 11S. W. 475, 1888. [Mass.] Hix v. Whittemore, 4 Met. 545, 1842. [Mo.] State v. Huting, 21 Mo. 464, 1855; State v. Lowe, 93 Mo. 547, 5 S. W. 889, 1887; State v. Vaughn, 223 Mo. 149, 122 S. W. 677, 1909. [N. J.] State v. Spencer, 21 N. J. L. 196, 1849. [S.C] State v. Stark, 1 Strobh. L. 479, 1846. [Tex.] Webb v. State, 5 Tex. App. 596, 1878. (where it was held that stronger proof of in- sanity would be required as a ground of irresponsibility than would be re- quired to relieve from a contract); Wooten v. State, 51 Tex. Crim. Rep. 428, 102 S. W. 416, 1907. [Wis.] State v. Wilner, 40 Wis. 304, 1876. Presumption arises only where the insanity is continuing and per- manent in its nature, or cause of disorder continuing and permanent. Sims v. State, 50 Tex. Crim. Rep. 563, 99 S. W. 555, 1907. Rule does not apply to insanity other than that of a nature liable to be permanent. Hempton v. State, 111 Wis. 127, 86 S. W. 596, 12 Am. Crim. Rep. 657, 1901; Sims v. State, 50 Tex. Crim. Rep. 563, 99 S. W. 555, 1907. 2 Spasmodic or temporary insanity having been proved to exist prior to commission of act, there is no pre- sumption of continuance to the time of act complained of. People v. Findley, 132 Cal. 301, 64 Pac. 472, 1901. 3Ibid.; Lewis v. Baird, 3 McLean, 56, Fed. Cas. No. 8,316, 1849; People v. Francis, 38 Cal. 183, 1870; State v. Reddick, 7 Kan. 143, 1871. See United States v. Guiteau, 1 Mac- key, 498, 47 Am. Rep. 247, 1882. 4[Cal.] People v. Francis, 38 Cal. 183, 1870. [Kan.] State v. Reddick, 7 Kan. 143, 1871. [N. C.] State v. Sewell, 48 N. C. (3 Jones, L.) 245, 1855. 116 CRIMINAL LAW. {§ 81 tions may be received on a trial for an act alleged to have been insane;* and so may that of subsequent attacks of: derange- ment,° if connected in system with the defendant’s condition at the time of the offense.” Attempt at suicide is one of the incidents from which insanity may be inferred.® § 82. —And from physical peculiarities. As facts from which insanity may be inferred, it is admissible to prove epi- lepsy,’ cerebral peculiarities, and anomalies of sensibility, pulse, secretion;* and to put in evidence the history, conver- sation, writings, and deportment of the patient, so far as they bear on the issue.? Admissible, in order to show mental incapacity when the de- fendant, under trial for larceny, has been shown to be an opium eater, and to have been deprived of his accustomed supply of 5 Wharton, Crim. Ev. § 731; 7 Ene. Ev. pp. 446 et seq. [Eng.] suicide is not, of itself, evidence of the fact of insanity, and raises no Rex v. Haswell, 1 Russ. & R. C. C. 458, 1818. [Fed.] United States v. Sharp, Pet. C. C. 118, Fed. Cas. No. 16,264, 1815. [Ala.] McLean v. State, 16 Ala. 672, 1848; McAllister v. State, 17 Ala. 434, 52 Am. Dec. 180, 1850. [Conn.] Grant v. Thomp- son, 4 Conn. 203, 10 Am. Dec. 119, 1822. [Iowa] State v. Mewherter, 46 Iowa, 88, 1877. [Mass.] Dickin- son y. Barber, 9 Mass. 225, 6 Am. Dec. 58, 1812; Com. v. Brayman, 136 Mass. 438, 1883. [N. Y.] Lake v. People, 1 Park. Crim. Rep. 495, 1854. [N. C.] Norwood v. Marrow, 20 N. C. 578 (4 Dev. & B. L. 442), 1839. [Va.] Vance v. Com. 2 Va. Cas. 132, 1820. Insanity at instant of commission of act.—Insanity of the prisoner, at the instant of the commission of the offense, can be established only by evidence tending to prove that he was insane at some period before or afterward. People v. March, 6 Cal. 548, 1856; State v. Davis, 27 8. C. 609, 4 S. E. 567, 1888. See note in 6 Am. Dec. 59-61. 6 See 1 Wharton & S. Med. Jur. § 378; People v. March, 6 Cal. 548, 1856. . 7Com. v. Pomeroy, 117 Mass. 143, 1875. 8 Attempt to suicide as evidence of insanity—An attempt to commit legal presumption thereof, but may be considered by the jury with all the other facts and circumstances bearing on the question of insanity. Mercur, J., in Coyle v. Com. 100 Pa. 573, 45 Am. Rep. 397, 1882. See 7 Enc. Ev. p. 446. 1 Wharton & S. Med. Jur. §§ 422, 470. See [Ga.] Fogarty v. State, 80 Ga. 450, 5 S. E. 782, 1888. [Iowa] State v. George, 62 Iowa, 682, 18 N. W. 298, 1888 (citing 1 Wharton & S. Med. Jur. § 470); [N. Y.] Peo- ple v. Smiler, 125 N. Y. 717, 26 N. E. 312, 1891. [Pa.] Laros v. Com. 84 Pa. 200, 1877. [Tex.] Lovegrove v. State, 31 Tex. Crim. Rep. 491, 21 S. W. 191, 1893. Epilepsy raises no presumption of insanity, but leaves that fact to be proved as other matters of defense. Com. v. Snyder, 224 Pa. 526, 73 Atl. 910, 1909. 2Wharton & S. Med. Jur. § 347. Family and neighborhood reputa- tion—But it has been ruled that family and neighborhood reputation is not admissible to prove that the prisoner was permanently injured in his mind, by reason of a wound which he had received. Choice v. State, 31 Ga. 424, 1861. 31 Wharton & S. Med. Jur. §§ 378-88. See Wharton Crim. Ev. § 731, 7 Eng. Ev. pp. 467-479. § 83] FITNESS OF OFFENDER TO COMMIT OFFENSE. 117 the drug, to prove by competent testimony the effect of such deprivation on his mental condition.* § 83. —And from hereditary tendencies. As a rule, it is competent to prove insanity in the family of the party whose sanity is under examination.! It has been said that where hereditary insanity is offered as an excuse for crime, it must appear that the kind of insanity proposed to be proven is no temporary malady, and that it is notorious, and of the same species as that with which other members of the family have been afflicted.? But this qualifi- cation cannot be sustained, as insanity rarely descends in the same common type, but varies with individuals.’ Proof of hereditary insanity can only be admitted as cumu- lative evidence. defense.* By itself, the insanity of ancestors is no Evidence that certain causes might induce insanity ig not ad- 4 Rogers v. State, 33 Ind. 53, 1870. 11 Wharton & S. Med. Jur. § 372; 7 Enc. Ev. p. 467. [Eng.] Reg. v. Tucket, 1 Cox, C. C. 103, 1845; Reg. v. Oxford, 9 Car. & P. 525, 1840; Smith v. Kramer, 1 Am. L. Reg. 353. [Fed.] United States v. Holmes, 1 Cliff. 98, Fed. Cas. No. 15,382, 1858. {Cal.] People v. Smith, 31 Cal. 466, 1866; People v. Goldenson, 76 Cal. 328, 19 Pac. 161, 1888. [Colo.] Jones v. People, 23 Colo. 276, 47 Pac. 275, 1896. [Conn.] State v. Hoyt, 47 Conn. 518, 36 Am. Rep. 89, 1880. [Del.] State v. Windsor, 5 Harr. (Del.) 512, 1851. ([Tll.] Snow v. vy. Benton, 28 Ill. 306, 1862. [Ind.] Bradley v. State, 81 Ind. 492, 1869. [Iowa] State v. Felter, 25 Towa, 67, 1867; Ross v. Mc- Quiston, 45 Iowa, 145, 1876. [Ky.] Murphy v. Com. 92 Ky. 485, 18 S. W. 168, 1892; Wright v. Com. 24 Ky. L. Rep. 1838, 72 S. W. 340, 1903. [Md.] Watts v. State, 99 Md. 30, 57 Atl. 542, 1904. [Mass.] Baxter v. Abbott, 7 Gray, 71, 1856. [Mich.] People v. Garbutt. 17 Mich. 9, 97 Am. Dec. 162, 1867; Prentis v. Bates. 93 Mich. 234, 17 L.R.A. 494, 53 N. W. 153, 1892. [N. Y.] Walsh v. People, 88 N. Y. 458, 1882; Cole’s Trial, 7 Abb. Pr. N. S. 321, 1867; People v. Montgomery, 13 Abb. Pr. N. S. 207, 1872. [Ohio] Wheeler v. State, 34 Ohio St. 394, 32 Am. Rep. 372, 1878. [Pa.] Laros v. Com. 84 Pa. 200, 1877; Sayres v. Com. 88 Pa, 291, 1879. [Tenn.] Hagan v. State, 5 Baxt. 615, 1875. [Tex.] McLeod v. State, 31 Tex. Crim. Rep. 331, 20 S. W. 749, 1892. Insanity of uncles has been re- ceived in evidence (Baxter v. Abbott, 7 Gray, 71, 1856); and even of col- lateral descendants from a common ancestor three generations back. Com. v. Andrews, cited in 1 Whar- ton & S. Med. Jur. § 375; Edmund’s Case (Wharton & S. Med. Jur. § 375; and see Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, 1843. 2State v. Christmas, 51 N. C. (6 Jones, L.) 471, 1858. 31 Wharton & S. Med. Jur. § 376; Wharton Crim. Ev. § 731. 4 Snow v. Benton, 28 Ill. 306, 1862. Pennsylvania rule—In Laros v. Com. 84 Pa. 200, 1877, it is ruled that such evidence is not competent until evidence of the defendant’s own insanity is given. See People v. Pine, 2 Barb. 566, 1848; State v. Christmas, 51 N. C. (6 Jones, L.) 471, 1858. 118 CRIMINAL LAW. [§ 83 missible without laying, or offering to lay, a basis of proof to show that insanity actually existed.® 8. Other forms of unconsciousness. § 84. Other forms of unconsciousness may be a de- fense. Other forms of unconsciousness may be noticed as con- stituting a defense to a criminal charge. A man may commit an injury when asleep, as when in a state of sleep-walking or somnambulism.’ Or he may be under the influence of opium, or of ether, or other anodynes.? The question then arises, Was the defendant at the time of the act a free agent? If not, the act is not criminally imputable to him. But we have to keep in mind two possible conditions which may greatly vary the ease. If the abnormal state was artifically induced in order to facilitate the commission of the crime, then the offense is malicious. If such state was negligently induced, then the defendant may be chargeable with a negligent offense. II. Inranrs.! § 85. Infants under seven not penally responsible. Until an infant arrives at the age of seven, he cannot be con- victed of a criminal offense. Under that age the infant may be chastised by his parents or tutors, but cannot be judicially punished, for he cannot be guilty in such a way as involves the ordinary penalty of crime.” 5Sawyer v. State, 35 Ind. 80, Y. Med. Leg. Soc. pp. 298-317, N. 1871; Bradley v. State, 31 Ind. 492, Y. 1872, 8 Wharton & S. Med. Jur. 1869. 1Fain v. Com. 78 Ky. 183, 39 Am. Rep. 213, 1879; and see cases discussed in 1 Wharton & S. Med. Jur. §§ 482-4. As to somnambulism as a defense see Kerr, Homicide § 218; Kerr’s “Before and at Trial” 270; 1 Am. L. J. (Ohio) 68; Brown’s Life of Rufus Choate 174; Ray’s Med. Jur. § 495; 12 Cyc. 168; 16 Am. & Eng. Ene. Law, 2d ed. p. 565. 2Rogers v. State, 33 Ind. 543, 1870. Chloroform as a means of facili- tating crime, see proceedings of N. §§ 245, 594. 1Search note; 16 Am. & Eng. Enc. Law, 2d ed. p. 311; 22 Cyc. 622; 27 Century Dig. col. 1187, §§ 171- 177; 10 Decen. Dig. p. 1723, § 66; Am. Dig. title “Infants” § 66. 21 Inst. 2; Burn’s J. P. 29th ed. title Children; 1 Hale, P. C. 19, 20; 4 Bl. Com. 23; 2 Stephen, History Crim, Law 98 [Eng.] Rex. v. Giles, 1 Moody, ©. C. 166, Car. Crim. Law, 191, 1834; Marsh v. Loader, 14 C. B. N. S. 535, 11 Week. Rep. 784, 1863. [Ky.] Heilman v. Com. 84 Ky. 457, 4 Am. St. Rep. 207, 1 S. W. 731, 1886. [Mass.] Com. v. Mead, 10 Allen, 396, § 86] FITNESS OF OFFENDER TO COMMIT OFFENSE. 119 § 86. Between seven and fourteen an infant capax doli may be convicted. Between the age of seven and fourteen responsibility is conditioned on capacity. If it appear that a child within these limits is capax doli, which is to be deter- mined by the circumstances of the case, he may be convicted and condemned.? 398, 1865. [N. J.] State v. Guild, 10 N. J. L. 168, 18 Am. Dec. 404, 1828. [N. Y.] People v. Townsend, 3 Hill, 479, 1842. [Tenn.] State v. Goin, 9 Humph. 175, 1848. 1[Eng.] Rex v. Owen, 4 Car. & P. 236, 1830; Rex. v. Groombridge, 7 Car. & P. 582, 1836; Reg. v. Vanplew, 3 Fost. & F. 520. [Ala.] Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494, 1858; Martin v. State, 90 Ala. 602, 24 Am. St. Rep. 844, 8 So. 858, 1890; Reynolds v. State, 154 Ala. 14, 45 So. 894, 1908. [Ky.] Willet v. Com. 13 Bush, 230, 1877; Heilman v. Com. 84 Ky. 457, 4 Am. St. Rep. 207, 1 S. W. 731, 1886. [N. J.] State v. Aaron, 4 N. J. L. 231, 7 Am. Dee. 592, 1818; State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, 1828. [Tenn.] State v. Doherty, 2 Overt, 80, 1806. See, also, infra § 90. As to age of presumptive capacity, see 7 Enc. Ev. p. 264. Age of accused being the issue, a witness who has known him for seven or eight years is incompetent to testify that, in his opinion, ac- cused is fifteen or sixteen years old. Martin v. State, 90 Ala. 602, 24 Am. St. Rep. 844, 8 So. 858, 1890. Assault and battery, as to liability of minor for, see infra, § 88. Capacity or want of capacity, in the trial of an accused under four- teen years of age, may be shown by the testimony of witnesses that ac- cused is not of a bright or quick mind. Martin v. State, 90 Ala. 602, 24 Am. St. Rep. 844, 8 So. 858, 1890. Punishment—Place of, is deter- mined by age at time of trial, and not at time of commission of act. Conley v. State, 55 Tex. Crim. Rep. 370, 116 S. W. 806, 1909. —Commitment to industrial home —Requisites of judgment and war- rant. Leiby v. State, 79 Neb. 485, 1138 N. W. 125, 1907. —Detention of woman against her will, for purpose of carnal knowledge, by boy over sixteen, punishment by impri:onment in penitentiary, in- stead of in house of reform, not an abuse of discretion. Davis v. Com. 125 Ky. 454, 101 S. W. 352, 1907. —Female over eighteen, illegal. Ex parte Wood, 5 Cal. App. 471, 90 Pac. 961, 1907. —Male under eighteen guilty of crime other than murder or man- slaughter. Roberts v. State, 82 Neb. 651, 118 N. W. 574, 1908. Confession of infant; as to suf- ficiency of, to convict, see infra, § 92. Criminal intent cannot be enter- tained by an infant until he is able to distinguish between right and wrong and realize the consequences of his act. Beason vy. State, 96 Miss. 105, 50 So. 488, 1909. Felony charge against child of eleven can be established only by the strongest and clearest proof of his capacity to entertain a criminal in- tent. Angelo v. People, 96 III. 209, 36 Am. Rep. 132, 1880. Fraudulent practice, as to liability of minor for, see infra, § 88. Instruction to acquit must be giv- en where there is no evidence to show mental capacity to form crim- inal intent, or physical ability to commit the crime. Beason v. State, 96 Miss. 105, 50 So. 488, 1909. Larceny.—Age of defendant in prosecution for, has nothing to do with his guilt; it is important with reference to the place of confinement only. Colip v. State, 153 Ind. 584, 74 Am. St. Rep. 322, 55 N. E. 739, 1899. Massachusetts provisions for trial of infants, see Com. v. Donahue, 126 Mass. 51, 1879. Murder charged against infant un- der fourteen years of age, conviction 120 The presumption that an infant is not capax doli, CRIMINAL LAW. [§ 86 as to a child under seven, is irrebuttable.? As to a child between seven and fourteen the presumption is rebuttable, the burden of over- throwing it being on the prosecution; the intensity of proof varying with age and other circumstances.* It has been held in North Carolina that, “as the reputed age of every one is cannot be sustained unless evidence shows accused was conscious of fact he was doing wrong when he com- mitted the act. Kear v. State, 84 Ark. 146, 104 S. W. 1097, 1907. No issue as to criminal discretion, accused considerably over thirteen years of age may be convicted of swindling. Neal v. State, — Tex. Crim. Rep. —, 101 8. W. 212, 1907. Non-age being shown—Burden is on state to show accused understood the nature and illegality of the act. Carr v. State, 24 Tex. App. 562, 5 Am. St. Rep. 905, 7 S. W. 328, 1888. Proof of age of discretion may be by circumstantial evider->, and need not be by direct and positive evi- dence. Carr v. State, 24 Tex. App. 562, 5 Am. St. Rep. 905, 7 S. W. 328, 1888. —Education, habits, etc, admissible to show the accused possessed of ordinary intelligence of boys of his age, to establish discretion and crim- inal responsibility. Carr v. State, 24 Tex. App. 562, 5 Am. St. Rep. 905, 7 S. W. 328, 1888. Rape—Presumption boy under fourteen years of age cannot com- mit, see infra, § 87. Swindling—Fact accused not twenty-one years of age will not prevent him from committing crime of swindling. Neal v. State, — Tex. Crim. Rep. —, 101 S. W. 212, 1907. Test of accountability of infant is ability to distinguish between right and wrong. State v. Potts, 100 N. C. 457, 6 S. E. 657, 1888. As to infant’s responsibility for crime, see notes in 70 Am. Dec. 496— 499; 36 Am. Rep. 120; 36 Am. Rep. 132; and 40 Am. Rep. 570. 2 Wharton, Crim. Ev. § 801. See Tleilman v. Com. 84 Ky. 457, 4 Am. St. Rep. 207, 1 8S. W. 731, 1886; Beason v. State, 96 Miss. 105, 50 So. 488, 1909. As to conclusive presumption of incapacity of infant to commit crime, see 7 Enc. Ev. p. 263. 3Ibid.; Hale’s Sum. 48; 1 Hawk. P. C. chap. 1, § 8; 4 BI. Com., 24. [Eng.] Rex v. Wild, 1 Moody, C. C. 452, 1834; Reg. v. Smith, Leigh & C. C. C. 607, 84 L. J. Mag. Cas. N. S. 153, 11 Jur. N. S. 695, 12 L. T. N. S. 609, 13 Week. Rep. 816, 10 Cox, C. C. 82, 1863; Rex v. Owen, 4 Car. & P. 236, 1830; Reg. v. Smith, 1 Cox, C. C. 260, 1846. [Ga.] Hill v. State, 53 Ga. 478, 1876. [Ill.] Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132, 1880. [Iowa] State v. Fowler, 52 Iowa, 103, 2 N. W. 983, 1879. [Ky.] Willet v. Com. 13 Bush, 230, 1877. [Mass.] Com. v. Mead, 10 Allen, 398, 1865; Com. v. Elliot, 110 Mass. 104, 4 Law Rep. 329, 1872. [Miss.] Beason v. State, 96 Miss. 105, 50 So. 488, 1909. [Mo.] State v. Adams, 76 Mo. 355, 4 Am. Crim. Rep. 392, 1882. [N. C.] State v. Pugh, 52 N. C. (7 Jones, L.) 61, 1859. [S. C.] State v. Toney, 15 S. C. 409, 1881. [Tenn.] State v. Goin, 9 Humph. 175, 1848. [Vt.] State v. Learnard, 41 Vt. 585, 1869. See note in 1 Green, Crim. L. Rep. 402. In Illinois the age of irresponsibil- ity is extended to ten. Angelo v. People, 96 Ill. 209, 36 Am, Rep. 132, 1880. In Texas the periods are nine and thirteen. McDaniel v. State, 5 Tex. App. 475, 1879. Under the New York Penal Code of 1884 the limit is placed at twelve. A German view.—According to an enlightened German jurist and states- man, the age of criminal responsibil- ity is postponed in proportion to the extent to which the State assumes the responsibility of the education of its children. “The better the school discipline, the more confident- § 86] FITNESS OF OFFENDER TO COMMIT OFFENSE, 127 peculiarly within his own knowledge,” a defendant setting up infancy has the burden on him to establish it.* An exceptional case is reported in New Jersey, where a boy of twelve years was convicted, on his own confession, imperfectly sustained by circumstantial corroboration, of murder, and was sentenced and executed.® When the age of fourteen arrives, full criminal responsibil- ity, at common law, attaches.® Parerital influence, not amounting to coercion, however much it may affect a jury’s conclusion on the merits, is not a technical defense.’ ly can the State defer to riper years the application of penal justice. Thus, while in the Roman and can- on law responsibility began at seven years, in modern Germany it does not begin till twelve.” Schaper, in Holtz. Straf. ii. 161. Rape—Presumption infant under age of fourteen has not reached age of puberty, and is incapable of com- mitting rape, is rebuttable by proof. [Ala.] Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494, 1858. [La.] State v. Jones, 39 La. Ann. 935, 3 So. 57, 1887. [Miss.] Beason v. State, 96 Miss. 105, 50 So. 488, 1909. [Ohio] Hiltabiddle v. State, 35 Ohio St. 52, 35 Am. Rep. 592, 1878. [Tenn.] Wagoner v. State, 5 Lea, 352, 40 Am. Rep. 36, 1880. See, also, note in 70 Am. Dec. 498. 4State v. Arnold, 35 N. C. (13 Tred. L.) 184, 1853; infra, § 91. 5State v. Guild, 10 N. J. L. (5 Halst.) 163, 18 Am. Dec. 404, 1828. See State v. Bostick, 4 Harr. (Del.) 563, 1847, 6 [Del.] State v. Bostick, 4 Harr. (Del.) 568, 1847; State v. Handy, 4 Harr. (Del.) 566, 1847. [Ga.] Irby v. State, 32 Ga. 496, 1861; Hill v. State, 63 Ga. 578, 36 Am. Rep. 120, 1879. [Tenn.] State v. Goin, 9 Humph. 175, 1848. “The presumption of law in favor of infants under fourteen, and the necessity of satisfying the jury that the child, when committing the act, must have known that he was doing wrong, is well illustrated by the case of Reg. v. Owen, 4 Car. & P. 236, 1830, where a girl ten years of age was indicted for stealing coals. It was proved that she was standing by a large heap of coals belonging to the prosecutor, and that she had a basket upon her head containing a few coals which the girl herself said she had taken from the heap. Littledale, J., in summing up to the jury, remarked: ‘In this case there are two questions: First, did the prisoner take the coals? and sec- ond, if she did, had she at the time a guilty knowledge that she was doing wrong? The prisoner is only ten years of age, and unless you are satisfied by the evidence that, in committing this offense, she knew that she was doing wrong, you ought to acquit her. Whenever a person committing a felony is under four- teen years of age, the presumption of law is that he or she has not suf- ficient capacity to know that it is wrong; and such person ought not. to be convicted unless there be evi- dence to satisfy the jury that the party, at the time of the offense, had a guilty knowledge that he or she was doing wrong” The jury returned a verdict of ‘Not guilty;’ adding, ‘We do not think the pris- oner had any guilty knowledge.’ ” Reg. v. Smith, 1 Cox C. C. 260, 1846; People v. Davis, 1 Wheeler C. C. 230, 1823; Walker’s Case, 5 N. Y. City Hall Rec. 187; Stage’s Case, 5 N. Y. City Hall Rec. 177, cited 5 Boston L. Rep. N. 8. 364; State v. Doherty, 2 Overt. 80, 1806. TInfra, § 125. 122 CRIMINAL LAW. [§ 87 § 87. Boy under fourteen presumed incapable of rape. A boy under fourteen is presumed by law unable to commit a rape, and therefore, it seems, cannot be guilty of it; and though in other felonies malitia supplet aetatem in some cases, yet it seems that as to rape the law presumes him impotent as well as wanting discretion. Nor at common law is any evidence admissible to show that in fact he had arrived at the full state of puberty, and could commit the offense.? But he may be a principal in the second degree, if he aid and assist in the com- mission of this offense, as with other felonies, and if intelli- gent evil purpose on his part be shown by the prosecution,* which must, however, be plainly established. And though an infant under fourteen cannot be convicted of an assault with an intent to commit a rape,* he may be convicted of an in- decent assault under the 7 Will. IV. § 1; 10 Vict. chap. 85, § 11.5 After he passes fourteen the presumption vanishes; and in Delaware a boy just arrived at that age has been held in law capable of the offense.® § 88. Infant’s liability in special cases. An infant, un- der the limitations which have been above expressed, may be guilty of forcible entry, if concerned in actual personal vio- lence,’ and the justices may fine him therefor; though it is doubtful whether under the old English statutes he could be imprisoned for this offense.? 11 Hale, P. C. 360. And see Rex v. Eldershaw, 3 Car. & P. 396, 1828; Rex v. Groombridge, 7 Car. & P. 582, 1836. 2 Reg. v. Philips, 8 Car. & P. 736, 1839; Reg. v. Jordan, 9 Car. & P. 118, 1839; Lewis, Crim. Law, 558. Compare: People v. Randolph, 2 Park. Crim. Rep. 174, 1855; Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536, 1846; Moore v. State, 17 Ohio St. 521, 1867, where the presumption is held rebuttable; and see more ful- ly infra, § 686. See State v. Pugh, 52 N. C. (7 Jones, L.) 61, 1859. 8 Law v. Com. 75 Va. 885, 40 Am. Rep. 750, 1881. 4Rex v. Eldershaw, 3 Car. & P. 396, 1828; Reg. v. Phillips, 8 Car. & P. 736, 1839; Reg. v. Jordan, 9 Car. & P. 118, 1839; Reg. v. Brim- ilow, 2 Moody, C. C, 122, 9 Car. & P. As to other misdemeanors at- 366, 1840. [N. C.] State v. Pugh, 52 N. C. (7 Jones, L.) 61, 1859; State v. Sam, 60 N. C. (1 Winst. L.) 300, 1864. Compare: [Mass.] Com. v. Green, 2 Pick. 380, 1823. [N. Y.] People v. Randolph, 2 Park. Crim. Rep. 174, 1854. [Ohio] Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536, 1845. 5 Reg. v. Brimilow, 2 Moody, C. C. 122, 9 Car. & P. 366, 1840. 6 State v. Handy, 4 Harr. (Del.) 566, 1847. Infra, § 686. 11 Hawk. P. C. chap. 24, § 35. Burglary—Minor under thirteen years of age may be convicted of, when it is shown he had discretion to understand the nature and illegal- ity of the act. Simmons v. State, 50 Tex. Crim. Rep. 527, 97 S. W. 1052, 1906. 21 Hawk. P. C. chap. 64, § 35. § 91) FITNESS OF OFFENDER TO COMMIT OFFENSE. 123 tended with a notorious breach of the peace, such as riot, bat- tery, or the like, an infant is liable under the above limitations,’ and he is indictable for perjury or cheating.* But it is other- wise as to quasi civil suits. Thus, an infant under twenty- one is not responsible for not repairing a bridge or highway, or other such acts of omission of civil duty,’ though he may be convicted on a penal statute. An infant under seven can- not be punished criminally for a nuisance on his land.® § 89. Infant liable for false representations as to age. As will hereafter be seen, an infant over fourteen, who falsely claims to be of age, and thus obtains money, is indicta- ble for obtaining money by false pretenses. But this can only be done when there is nothing in the infant’s appearance to put parties dealing with him on inquiry as to the true facts. § 90. When infant may appear by attorney. Upona presentment against an infant for a misdemeanor, he has a right to appear and defend himself in person or by attorney, and it is an error to assign him a guardian, and to try the case on a plea pleaded for him by the guardian.’ § 91. Age is inferable from circumstances. When age an be ascertained by inspection, the court and jury must de- cide! But ordinarily, opinion of medical experts is admissi- 31 Hale, P. C. 20, 21; 4 BI. Com. 220; Bullock v. Babcock, 3 \Vend. 391, 1829. Infancy no defense for assault and battery. Peterson v. Haffner, 59 Ind. 130, 26 Am. Rep. 81, 1877. See Hill v. State, 63 Ga. 578, 36 Am. Rep. 120, 1879. 43 Bacon, Abr. Infancy (H). Infra, §§ 1411, 1412. . Fraudulent practice made penal by ‘statute, minor of the age of criminal responsibility may be convicted, al- though his contract of services would not be civilly enforceable. Anthony v. State, 126 Ga. 632, 55 S. E. 479, 1906. 5 Rex v. Sutton, 5 Nev. & M. 354, 38 Ad. & El. 597, 1 H. & W. 428, 4L. J. K. B. N.S. 215, 1826; Bl. Com. 22; Co. Litt. 257. 6See People v. Townsend, 3 Hill A479, 1842. lInfra, § 1404. See Anthony v. State, 126 Ga. 632, 55 S. E. 479, 1906. (conviction for fraudulent practices under statute) ; People v. Kendall, 25 Wend. 399, 37 Am. Dec. 240, 1841, infra, § 1398. 1 Word v. Com. 3 Leigh, 7438, 1831. As to Massachusetts, see Com. v. Donahue, 126 Mass. 51, 1879. Minor may plead guilty to a charge of crime. Ex parte White, 50 Tex. Crim. Rep. 473, 98 S. W. 850, 1906. Equivalent to a finding of guilty. Leiby v. State, 79 Neb. 485, 113 N. W. 125, 1907. See State v. Guild, 10 N. J. L. 168, 18 Am. Dec. 404, 1828. As to confession by minor, see supra, § 86, note; infra, § 92, foot- note 2. 1State v. Arnold, 35 N. C. (18 Tred. L.) 184, 1853. See supra, § 88; Wharton, Crim. Ev. § 310. 124 CRIMINAL LAW. [§ 92 ble to prove uge.? And age is generally inferable from circum- stances.® § 92. Confessions of infants admissible. We have else- where seen’ that no conviction should be permitted to rest on a confession without proof of the corpus delicti, and that a con- fession is dependent for credibility on the character and cir- cumstances of the declarant. To children these cautions are peculiarly applicable, as from their immaturity and inexpe- rience they are likely to indulge in loose talk. But a child’s confessions, if not elicited by threats or promises, are tech- nically admissible against him.? Ill. Feme Coverts.! § 93. Indictment not bad on its face when against wife alone. 2State v. Smith, 61 N. C. (Phill. L.) 302, 1867. As to burden of proof, see supra, § 865, 1 Enc. Ev. p. 737. 3 Method of proving infancy, or of disproving it, is not different from the mode of proving age generally. As to mode of proving age, see 1 Ene. Ev. pp. 7382-738; 7 Ene. Ev. p. 268. 1 Wharton, Crim. Ev. § 532. As to corpus delecti, see infra, §§ 346 et seq. 2[Eng.] Rex v. Wild, 1 Moody, C. C. 452, 18384; Rex v. Thornton, 1 Moody, C. C 27; Rex v. Upchurch, 1 Moody, C. C. 465, 1854. [Del.] State v. Bostick, 4 Harr. 563, 1846. [N. J.] State v. Guild, 10 N. J. L. 168, 18 Am. Dee. 404, 1828. [Vt.] Mather v. Clark, 2 Aik. (Vt.) 209, 1828. Confession of minor admissible in evidence against him, when. Carr v. State, 24 Tex. App. 562, 5 Am, St. Rep. 905, 7 S. W. 328, 1888. See, also [Ala.] Amos v. State, 83 Ala. 1, 3 Am. St. Rep. 682, 3 So. 749, 1887; Martin v. State, 90 Ala. 602, 24 Am. St. Rep. 844. 8 So. 858, 1890. [Mich.] People v. Baker, 60 Mich. 277, 1 Am. St. Rep. 501, 27 N. W. 539, 1886. [Tex.] Thompson v. State, 19 Tex. App. 595, 1885; There is no technical objection to an indict- Rice v. State, 22 Tex. App. 654, 3 S. W. 791, 1887. —Corpus delicti being otherwise shown, defendant under fourteen years of age may be convicted on his confession alone. [Ala.] Martin v. State, 90 Ala. 602, 24 Am. St. Rep. 844, 8 So. 858, 1890. [Mass.] See Com. v. Smith, 119 Mass. 305. [N. J.] State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, 1828. —Mere naked confession of an in- fant under twelve years of age will not warrant his conviction of a cap- ital offense. State v. Aaron, 4 N. J..L. 231, 7 Am. Dec. 592, 1818. As to plea of guilty by infant, see infra, § 115, note. 1Search note: 26 Century Dig. col. 1851, §§ 384-388; 10 Decen. Dig. p. 1135, § 107; Am. Dig. title “Hus- band and Wife,” § 107; 15 Am. & Eng. Ene. Law, 2d ed. pp. 807, 901- 904. Married woman cannot be held criminally liable for abandoning crops on rented land before repay- ment of advances of landlord, under N. C. Revisal 1905, § 3367, her con- tract of rental and agreement to cultivate being void. State v. Rob- inson, 143 N. C. 620, 56 S. E. 918, 1907. Conspiracy being gist of offense, § 93] ment naming the wife singly. FITNESS OF OFFENDER TO COMMIT OFFENSE, 125 It is not necessary that the husband should be included as a joint defendant, even though he was living with her at the time,” or was jointly participant with her in the offense, which is a matter of defense.* But it is right and proper, in the latter case, that there should be a joinder, and though a nonjoinder is no defense, and is not demurrable, the court may on motion compel it.* The husband may be singly indicted for his wife’s acts done under his com- mand,° or in case of misdemeanors, in his presence with his husband and wife alone cannot be guilty thereof, because at common law they are regarded as but one person. Jones v. Monson, 137 Wis. 478, 129 Am. St. Rep. 10 Res 119 N. W. 179, 1909. But this does not cat wife from prosecution for acts which are, in and of themselves, subjects of criminal prosecution, although per- petrated in the execution of a con- spiracy jointly with husband only. Jones v. Monson, 137 Wis. 478, 129 Am. St. Rep. 1082, 119 N. W. 179, 1909. Criminal acts being subjects of prosecution, though perpetrated in execution of conspiracy, husband and wife may be prosecuted jointly, with or without any other person being charged, conspiracy not being the gist of the offense. Jones v. Monson, 187 Wis. 478, 129 Am. St. Rep. 1082, 119 N. W. 179, 1909. House of ill fame.—Wife may be guilty of continuing a house of ill- fame, though at the time living in the home with her husband. Hud- son v. Jennings, 184 Ga. 373, 67 8. E. 1037, 1910. Keeping disorderly house in prop- erty used and controlled by husband and wife, latter liable. State v. Jones, 53 W. Va. 613, 45 S. E. 916, 1903. As to presumption of coercion by husband, see footnote 5, this section. 2[Eng.] LeRoy v. Fenner, 1 Sid. 410, 2 Keble, 468; Rex v. Jordan, 2 Keble, 634; Reg. v. Foxby, 6 Mod. 178; Rex v. Serjeant, 1 Ryan & M. 352. [Ga.] Hudson v. Jennings, 134 Ga. 373, 67 S. E. 1037, 1910. [Mass.] Com. v. Lewis, 1 Met. 151, 1841. [S. C.] State v. Collins, 1 M’Cord, L. 355, 1821. See, also, 26 Century Dig. col. 1853, § 386; 10 Decen. Dig. p. 435, § 107; Am. Dig. title “Husband 2 nd Wife,” § 107; 15 Am. & Eng. Ene, of Law, 2d. ed. p. 902. 3 Somerset’s Case, 2 How. St. Tr. 966, 1616; Rex v. Crofts, 2 Strange, 1120. 4Rather v. State, 1 Port. (Ala.) 132, 1833. 5 See Mulvey v. State, 43 Ala. 316, 94 Am. Dec. 684, 1869. Com. v. Barry, 115 Mass. 146, 1873. Coercion—Joining husband in com- mission of crime under degree of murder, wife is presumed to act un- der compulsion. See [Ala.] Bibb v. State, 94 Ala. 31, 33 Am. St. Rep. 88, 10 So. 506, 1891. [Ind.] Ball v. Ben- nett, 21 Ind. 427, 83 Am. Dec. 356, 1863; Choen vy. Porter, 66 Ind. 199, 1879. [Iowa] State v. Harvey, 130 Iowa, 394, 106 N. W. 398, 1906. [Me.] State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422, 1871. [Mass.] Com. v. Neal, 10 Mass. 152, 6 Am. Dec. 105, 1813; Com. v. Gannon, 97 Mass. 547, 1867; Com. v. Adams, 186 Mass. 101, 71 N. E. 78, 1904. [Minn.] Brazil v. Moran, 8 Minn. 236. Gil. 205, 88 Am. Dec. 772, 1868. [Mo.] State v. Ma Foo, 110 Mo. 7, 33 Am. St. Rep. 414, 19 S. W. 222, 1892; State v. Miller, 162 Mo. 253, 85 Am. St. Rep. 498, 62 S. W. 692, 1901. [N. J.J Emmons v. Stevane, 73 N. J. L. 349, 64 Atl. 1014, 1896. ‘IN. YJ People v. Ryland, 2 N. Y. Crim. Rep. 441, 1884. [Ohio] Davis v. Stole, 15 Ohio, 72,45 Am. Dec. 559, 1846, Committing felony in presence of husband — Presumption. — Where a 126 CRIMINAL LAW. [§ 93. knowledge and apparent assent,® or, in cases where the busi- ness of the house is at issue, for her acts in their common home.’ The indictment need not negative coercion.® § 94. —So as to indictments against husband and wife jointly. Indictments against wife jointly with hus- band are good on their face, and will be sustained on demurrer, on arrest of judgment, or in error.! wife commits a felony, except mur- der, treason, and perhaps some other felonies, in presence of her husband, she is presumed to act under coer- cion. State v. Ma Foo, 110 Mo. 7, 33 Am. St. Rep. 414, 19 S. W. 222, 1892. —Delivering pistol to husband in- carcerated in jail under conviction of murder, presumed to be under coercion. State v. Miller, 162 Mo. 253, 85 Am. St. Rep. 498, 62 N. W. 692, 1901. —Murder committed by wife in presence of her husband, or in com- pany with her husband; the pre- sumption of coercion does not arise, and she is held personally liable, and is punishable as much as if sole. Bibb v. State, 94 Ala. 31. 33 Am. St. Rep. 88, 10 So. 506, 1891; State v. Ma Foo, 110 Mo. 7, 33 Am. St. Rep. 414, 19 S. W. 222, 1892. —Wife by telepathy commanding husband to commit murder or other felony; if he do so, she can, of course, not be regarded as acting under coercion. The subject of telepathy in crime is treated in a later sec- tion. Presumption of coercion not con- clusive; and where it does not ap- pear that the husband was the in- citer, but that the wife was, she is liable. People v. Ryland, 2 N. Y. Crim. Rep. 441, 1884. See Mahoney v. Roberts, 86 Ark. 130, 110 S. W. 225, 1908; State v. Ma Foo, 110 Mo. 7, 33 Am. St. Rep. 414, 19 S. W. 222, 1902. As to rebuttal of presumption, see 6 Enc. Ev. p. 827. Conduct of wife committing crime in presence of husband may be such as to overcome presumption of co- ercion. Com. v. Adams, 186 Mass. 101, 71 N. E. 78, 1904. When wife choked a man and told And this rule has been him to keep still while her husband picked his pockets, jury justified in finding she acted independently, and not under coercion. People v. Wright, 38 Mich. 744, 31 Am. Rep. 331, 1878. When wife offends alone, she is responsible for her offense, equally as if sole. State v. Nelson, 29 Me 329, 1849. —False testimony given by wife in presence of husband does not relieve her of penalties for perjury. Smith v. Meyers, 54 Neb. 1, 74 N. W. 277, 1898. —In case of keeping disorderly house wife is not presumed to be acting under husband’s coercion. State v. Jones, 53 W. Va. 618, 45 S. E. 916, 1903. See Hudson v. Jen- nings, 134 Ga. 373, 67 S. E. 1037, 1910. As to liability of husband for crimes and torts of wife, and pre- sumption of coercion on his part, see notes in 6 Am. Dec. 106; 73 Am. Dec. 73; 83 Am. Dec. 776; 33 Am. St. Rep. 89-96. 6 Infra, § 1804; Hensley v. State, 52 Ala. 10, 1 Am. Crim. Rep. 465, 1874, 7TInfra, § 1804. 8State v. Nelson, 29 Me. 1848. 1[Eng.] Rex v. Hammond, 1 Leach, C. L, 444, 2 East, P. C. 1119, 1847; Reg. v. Mathews, 1 Eng. L. & Eq. Rep. 549, 1 Den. C. C. 596, 1847; Rex v. Dixon, 10 Mod. 335; Reg. v. Cruse, 8 Car. & P. 541, 2 Moody, C. C. 53, 1838. [Me.] State v. Nelson, 29 Me. 329, 1848. [Mass.] Com. v. Trimmer, 1 Mass, 476, 1805; Com. v. Tryon, 99 Mass. 442, 1868. [Mo.] State v. Bentz, 11 Mo. 27, 1847. [S. C.] State v. Parkerson, 1 Strobh. L. 169, 1846. [Vt.] State v. Potter, 42 Vt. 495, 1869. 329, § 95] FITNESS OF OFFENDER TO COMMIT OFFENSE. 127 specifically applied to indictments for assault and battery ;* for keeping a bawdy house;* for the keeping of a gaming house ;* for keeping a tippling house;* for forcible entry and detainer;° for stealing and receiving;? for murder;® and for treason.? After a conviction of husband and wife jointly, of a sev- erable offense, the court may affirm the judgment as to the husband, and reverse as to the wife. But where the offense is joint, the wife cannot be convicted without the husband.” § 95. Wife’s misnomer must be pleaded in abatement. If a feme covert be indicted as a feme sole, her proper course is to plead the misnomer in abatement, for if she pleads over, she cannot take advantage of it. She must aver her marriage in her plea, and prove it affirmatively.? The practice on such a plea is elsewhere discussed.* But notwithstanding she is thus precluded from setting up misnomer as a bar, she may,. so it has been held, make the defense of marital coercion, though 2Reg. v. Cruse, 8 Car. & P. 541, 2 Moody, C. C. 53, 1838; State v. Parkerson, 1 Strobh. L. 169, 1846. Assault and battery committed by wife in company of and by command of husband; indictment will not lie against wife. Com. v. Neal, 10 Mass, 152, 6 Am. Dec. 105, 1813. Assault committed by wife in im- mediate presence of husband; the presumption of law is that she acted under his coercion. Com. v. Gannon, 97 Mass. 547, 1867. 8Reg. v. Williams, 10 Mod. 63; 1 Hawk. P. C. chap. 1. § 12; State v. Bentz, 11 Mo. 27, 1847. 4Rex v. Dixon, 10 Mod. 335. In sale of intoxicating liquors by wife in presence of husband, coercion is not presumed, and wife is liable. See State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422, 1871. —Lither as principal or as agent of her husband; if he is near enough for her to be under his influence and control, although not in the same room with her, the wife cannot be punished. Com. v. Burk, 11 Gray, 437. See State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422, 1871. —Sale by wife in absence of her husband; she may be indicted as a common seller. Com. v. Murphey, 2 Gray, 510, 1854. 5Com. v. Murphy, 2 Gray, 510, 1854. Infra, § 1804. 6State v. Harvey, 3 N. H. 65, 1826. 7Reg. v. M’Athey, 9 Cox, C. C. 251, Leigh & C. C. C. 250, 32 L. J. Mag. Cas. N. S. 35, 8 Jur. N. S. 1218,. 7 L. T. N. 8. 433, 11 Week. Rep. 73,. 1863. 8 Reg. v. Cruse, 8 Car. & P. 541,. 2 Moody, ©. C. 58, 1838; Com. v.. Chapman, Phila. Pamph. 1831. 9 Somervile’s Case, Ander. 104. 10 Reg. v. Mathews, 1 Eng. L. & Eq. Rep. 549, 1 Den. C. C. 596, 1847. See Com. v. Neal, 10 Mass. 152, & Am. Dee. 105, 1813. 11 Rather v. State, 1 Port. (Ala.) 132, 1833. 1Rex v. Jones, J. Kelyng, 37, 1841; Wharton, Crim. Pl. & Pr. §§ 96,. 423 et seq. 2Rex v. Atkinson, 1 Russell, Crimes, 35; Rex v. Hassall, 2 Car. & P. 434, 1826; Reg. v. Woodward, 8 Car. & P. 561, 1838; Reg. v. M’Gin- nes, 11 Cox, C. C. 391, 1871; Reg. v. Torpey, 12 Cox, C. C. 45, 1872. 3 Wharton, Crim. Pl. & Pr. § 423; Com. v. Neal, 10 Mass. 152, 6 Am. Dec. 105, 1813; Com. v. Eagan, 103: Mass. 71, 1869. 128 CRIMINAL LAW. [§ 95 she has pleaded not guilty in an indictment charging her as a feme sole.‘ § 96. Wife presumed to be acting under her hus- band’s coercion when co-operating in crime. By the English common law, if a wife is party to a crime under her husband’s direct command and constraint she is entitled to ac- quittal; and though by some of the old writers an exception is made in cases of treason, murder, and robbery,’ the weight of authority is against this exception.* It is also a doctrine of the same law that if a crime of minor grade be committed by a wife in company with or in the presence of her husband, it is a rebuttable presumption of law that she acted under his immediate coercion.® It is, however, conceded, that if she com- mit a crime of her own voluntary act, or by the bare command of her husband in his absence,* or, as it is held by the old writ- ers, if she be guilty of treason, murder, or robbery, or any other crime, malum in se, and prohibited by the law of nature, or which is heinous in its character, or dangerous in its conse- quences, even in company with or by command of her husband, 4United States v. DeQuilfeldt, 5 Fed. 276, 2 Crim. L. Mag. 214, 11 Rep. 455, 1881. Defendant’s name misstated in an indictment or information must be corrected by a plea in abatement; and this rule applies to married woman indicted as sole. United States v. De Quilfeldt, 5 Fed. 276, 2 Crim. L. Mag. 211, 214, 11 Rep. 455, 1881. : —Failure to plead the misnomer in abatement cures the defect. [Fed.] United States v. De Quilfeldt, 5 Fed 276, 2 Crim. L. Mag. 211, 215, 11 Rep. 455, 1881. [N. Y.] People v. Smith, 1 Park. Crim. Rep. 329, 1852. [S. C.] State v. Thompson, Cheves, L. 31, 1839. [Tenn.] State v. Hughes, 1 Swan, 261, 1851; Lewis v. State, 1 Head, 329, 1858. lInfra, § 124; Russell, Crimes, 19- 22; Rex v. Stapleton, Jebb, C. C. 93, 1 Craw. & D. (Ir.) 168, 1841; Rex v. Knight, 1 Car. & P. 116, 1823. As to presumption of coercion where wife commits crime, see supra, § 93, footnote 5. 2Greaves’s Notes to 1 Russell on Crimes, 19-24. As to murder, treason, and other felonies by wife not raising any presumption of coercion, and her lia- bility for the act, see supra, § 93, footnote 5. 3 Infra, § 244; 1 Hawk. P. C. chap. 1. [Eng.] Reg. v. Smith, 8 Cox, C. C. 27, Dears. & B. C. C. 558, 27 L. J. Mag. Cas. N. 8. 204, 4 Jur. N. 8. 395, 6 Week. Rep. 471, 1859; Reg. v. Cohen, 11 Cox, C. C. 99,18 L. T. N.S. 489, 16 Week. Rep. 941, 1869. [Mass.] Com. v. Eagan, 103 Mass. 71, 1869. [N. C.] State v. Williams, 65 N. C. 398, 1871. [Ohio] Davis v. State, 15 Ohio, 72, 45 Am. Dec. 559, 1846. [Wis.] Miller v. State, 25 Wis. 384, 1870. As to rebuttability of presump- tion, see supra, § 93, footnote 5. 4Com. v. Feeney, 13 Allen, 560, 1866; Seiler v. People, 77 N. Y. 411, 1879; State, Hildreth, Prosecutor, v. Camp, 41 N. J. L. 306, 1879. See State v. Haines, 35 N. H. 207, 1859; State v. Potter, 42 Vt. 495, 1869. FITNESS OF OFFENDER TO COMMIT OFFENSE. 129 § 97] then she is punishable as much. as if she were sole. It may be questioned, however, whether the coercive presence of the husband, if a defense at all, is not a good defense in all cases, and whether the exception taken as to the higher grades of felonies can be maintained.* The difficulty, however, is in finding, in the present state of society, when the husband is as likely to support the wife if she is engaged in doing wrong, as the wife is to support the husband, any reason on which the presumption is to rest.” And the presumption of coercion is rebutted by proof of independent criminal action on the part of the wife.® § 97. —Presumption is rebuttable. In any view, while proximity of the husband at the time of the commission of the crime is necessary to enable this presumption to apply,’ such proximity by itself starts the presumption.” It is sufficient if 51 Hale, P. C. 45; Hawk. P. C. bk. i. chap.'1; 1 Bl. Com. 444; Rex v. Knight, 1 Car. & P. 116, 1823; Com. v. Neal, 10 Mass. 152, 6 Am. Dec. 105, 1813. 61 Russell, Crimes by Greaves, 18, 25, note; Reg. v. Manning, 2 Car. & K. 887, 1849; Reg. v. Smith, 8 Cox, C. C. 27, Dears. & B C. C. 553, 27 L. J. Mag. Cas. N. S. 204, 4 Jur. N. 8. 395, 6 Week. Rep. 471; 1858; Rez. v. Wardroper, 8 Cox, C. C. 284, Bell, C. C. 249, 29 L. J. Mag. Cas. N. S. 116, 6 Jur. N. S. 232,1 L. T. N. 8. 416, 8 Week. Rep. 217, 1860; Miller v. State, 25 Wis. 384, 1870. 7Presumption abolished by the New York Code of 1882, §§ 17, 24. Sir James Fitz-James Stephen’s View.—Sir J. F. Stephen, Dig. Crim. Law (note to article 30), writes: “Surely, as matters now stand, and have stood for a great length of lime, married women ought, as re- gards the commission of crimes, to be exactly on the same footing as other people. But owing partly to the harshness of the law in ancient times, and partly to its uncertain and fragmentary condition, it is dis- figured by a rule which is tolerable only because it is practically evaded on almost every occasion where it ought to be applied.” 8 [Eng.] Reg. v. Torpey, 12 Cox, C. C. 45, 1872. [Me.] State v. Crim. L. Vol. I.—9. Cleaves, 59 Me 298, 8 Am. Rep. 422, 1871. [Mass.] Com. v. Eagan, 103 Mass. 71, 1869; Com. v. Pratt, 126 Mass. 462, 1879. [Mich.] People v. Wright, 38 Mich. 744, 31 Am. Rep. 331, 1878. [N. H.] State v. Harvey, 3 .N. H. 65, 1826. [N. Y.] Goldstein v. People, 82 N. Y. 231, 1880. [Va.] Uhl v. Com. 6 Gratt. 706, 1849. See other cases cited, Wharton, Crim. Ev. § 733; 6 Ene. Ev. p. 821. 1Whether proximity is near enough to imply control, see State v. Shee, 13 R. I. 535, 1882. Act done by wife in absence of husband; no legal presumption of eoercion arises. Com. v. Butler, 1 Allen, 4, 1861. Or that her illegal act was done by his authority, even though she acts as his clerk or agent; e.g., the illegal sale of liquor by wife in ab- sence of husband. Seibert v. State, 40 Ala. 60, 1866. 21 Hawk. P. C. chap. 1, § 9; 1 Hale, P. C. 47; Dalton, County Jus- tice, chap. 157; 4 BI. Com. 29. [Eng.] Reg. v. Cruse, 8 Car. & P. 541, 2 Moody, C. C. 58, 1838; Rex v. Dixon, 10 Mod. 335; Rex v. Fen- ner, 1 Sid. 410; Rex v. Jordan, 2 Keble, 634; Rex v. Crofts, 2 Strange, 1120; Rex v. Taylor, 3 Burr. 1679; Rex v. Price, 8 Car. & P. 19, 1837; Reg. v. M’Clarens, 3 Cox, C. C. 425, 1849; Reg. v. Hill, 1 Den. C. C. 453, 130 CRIMINAL LAW. [§ 97 the proximity is near enough to put the wife under the hus- band’s supervision, though the parties are not at the time in the same room.® The presumption is, however, prima facie only, and may be rebutted, either by showing that the wife was the instigator or more active party, or that the husband, though present, was incapable of coercing, as that he was a cripple and bedridden, or that the wife was the stronger of the two, or that she was exercising a free volition,* or that the husband 1849; Reg. v. Cohen, 11 Cox, C. C. $9,18 L. T. N.S. 489, 16 Week. Rep. 941, 1869; Rex v. Hughes, 2 Lewin, C. C. 229, 1818. [Ind.] Jones v. State, 5 Blackf. 141, 1841. [Me.] State v. Nelson, 29 Me. 329, 1849. [Mass.] Martin v. Com. 1 Mass. 348, 1806; Com. v. Trimmer, 1 Mass. 476, 1805; Com. v. Neal, 10 Mass. 152, 6 Am. Dec. 105, 1813; Com. v. Lewis, 1 Met. 151, 1841; Com. v. Butler, 1 Allen, 4, 1860; Com. v. Eagan, 103 Mass. 71, 1869. [Mo.] State v. Bentz, 11 Mo. 27, 1847. [N. H.] State v. Harvey, 3 N. H. 65, 1826. [N. C.] State v. Williams, 65 N. C. 399, 1871. [Ohio] Davis v. State, 15 Ohio, 72, 45 Am. Dec. 559, 1846. [S. C.] State v. Collins, 1 M’Cord, L. 355, 1821; State v. Parkerson, 1 Strobh. L. 169, 1846. [Vt.] State v. Potter, 42 Vt. 495, 1869. [Va.] Uhl v. Com. 6 Gratt. 706, 1849. 3Connolly’s Case, 2 Lewin, C. C. 229, 1829; Com. v. Welch, 97 Mass. 593, 1867; Com. v. Munsey, 112 Mass. 289, 1872. 4[Eng.] Reg. v. Cohen, 11 Cox, C. C. 99, 18 L. T. N. S. 489, 16 Week. Rep. 941, 1869; Reg. v. Torpey, 12 Cox, C. C. 45; Reg. v. Cruse, 8 Car. & P. 541, 2 Moody, C. C. 53, 1838; Rex v. Stapleton, 1 Craw. & D. (Ir.) 163; Jebb, 93, 1841; Rex v. Price, 8 Car. & P. 19, 1837; Reg. v. Cruse, 8 Car. & P. 541, 2 Moody, C. C. 58, 1838; Reg. v. Matthews, 1 Den. C. C. 596, Temple & M. 337, 14 Jur. 618, 4 Cox, C. C. 214, 1847. [Me.] State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422, 1881. [Mass.] Com. v. Trimmer, 1 Mass. 476, 1805; Com. v. Eagan, 103 Mass. 71, 1869. [Mich.] People v. Wright, 38 Mich. 744, 31 Am. Rep. 331, 1878. [N. Y.] Cassin v. Delany, 38 N. Y. 178, 1868; Seiler v. People, 77 N. Y. 411, 1879; Quinlan v. People, 6 Park. Crim. Rep. 9, 1861. [N. C.] State v. Williams, 65 N. C. 398, 1871. [Ohio] Tabler v. State, 34 Ohio St. 127, 1877. [S. C.] State v. Parkerson, 1 Strobh. L. 169, 1846. [Va.] Uhl v. Com. 6 Gratt. 706, 1849. [Wis.] Miller v. State, 25 Wis. 384, 1870. See Russell, Crimes, 21. Under Arkansas statute, see Ed- wards v. State, 27 Ark. 493, 1872. —Wife incited by husband— Where a wife, by the incitement of her husband, but in his absence, knowingly uttered a forged order and certificate for the receiving of prize money, it was held that they might be indicted together, the wife as principal on the statute 49 Geo. III. chap. 1238, and the husband as accessory before the fact, at com- mon law. Rex v. Morris, 2 Leach, C. L. 1096, 1 Russell, Crimes, 18, Russ. & R. C. C, 270, 1814. And see R. v. Atkinson, cited in 1 Russell, Crimes, 35; Reg. v. Hill, 3 New Sess. Cas. 648, 1 Den. C. C. 458. Temple & M. 150, 2 Car. & K. 978, 18 L. J. Mag. Cas. N. 8. 199, 13 Jur. 545, 3 Cox, C. C. 533, 1849. See 1 Russell, Crimes, 21; Rex v. Hughes, 2 Lewin, C. C. 229, 1813. Compare. 1 Russell, Crimes, 21; Reg. v. Hill, 3 New Sess. Cas 648, 1 Den. C. C. 453, Temple & M. 150, 2 Car. & K. 978, 18 L. J. Mag. Cas. N. S 199, 13 Jur. 545, 3 Cox, C. C. 533, 1849. —In a later case, however, the common sergeant, after consulting Bosanquet and Coltman, JJ., held that the wife was entitled to an acquittal on an indictment for counterfeiting, where it appeared that she uttered the money in the § 97] FITNESS OF OFFENDER TO COMMIT OFFENSE, 131 was not so near at the time as to sustain the presumption.’ So, if a woman receive stolen goods into her house, knowing them to be such, or lock them up in her chest or chamber, her hus- band not knowing thereof; if her husband, so soon as he knows the fact, forsake his house and her company, and make his abode elsewhere, he is not to be charged for her offense; though the law otherwise will impute the fault to him, and not to her.® presence of her husband. Rex v. Price, 8 Car. & P. 19, 1887. And a woman who went from shop to shop uttering base coin, her hus- band accompanying her each time to the door, but not going in, was held by Bayley, J., to be under her hus- band’s coercion. MS. Durham Spring Assizes, 1829; Matthew’s Dig. 26; Connolly’s Case, 2 Lewin, C. C. 229, 1829. 5 Seiler v. People, 77 N. Y. 411, 1879, citing Reg. v. Buncombe, 1 Cox, C. C. 183, 1845. 6Dalton, Country Justice, chap. 157. Presumption as to wife acting un- der coercion—Sir J. F. Stephen (Dig. Crim. Law, art. 30) summariz- es the law as follows: “If a married woman commits a theft, or receives stolen goods, know- ing them to be stolen, in the pres- ence of her husband, she is presumed to have acted under his coercion, and such coercion excuses her act; but this presumption may be rebutted if the circumstances of the case show that, in point of fact, she was not coerced. “It is uncertain how far this prin- ciple applies to felonies in general. “Tt does not apply to high treason or murder. “Jt probably does not apply to rob- bery. “It applies to uttering counterfeit coin. “Tt seems to apply to misdemean- ors generally.” In a note it is said: “As to high treason, murder, and robbery, see 1 Hale, P. C. 45; Dalton, Country Jus- tice, chap. 157; 1 Hawk. P. C. 4; Rez. v. Buncombe, 1 Cox, C. C. 183, 1845; but as to robbery, see Mr. Carrington’s argument in Reg. v. Cruse, 2 Moody, C. C. 53, 1838, 8 Car. & P. 556. —As to robbery.—In Reg. v:. Torp- ey, the present recorder of London, held that the doctrine applied to rob- bery. 12 Cox, C. C. 45, 1872. As to misdemeanors in general, see note to Rex. v. Price, 8 Car. & P. 20, 1837, and 1 Russell, Crimes, 5th ed. p. 145, note (b). See too Reg. v. Tor- pey, 12 Cox, C. C. 45, 1872. As to uttering, see Rex v. Price, 8 Car. & P. 19, 1837.. As to false swearing, R. v. Dicks, 1 Russell Crimes, 4th ed. 34.” New York doctrine——In Seiler v. People, 77 N. Y. 411, 1879, it is held that if a wife steals of her own will, or by the bare command or procure- ment of her husband, she is not ex- cused, citing Reg. v. Buncombe, 1 Cox, C. C. 188, 1845; R. v. Hughes, 1 Russell, Crimes, *22 (41). And that, as in. the case before the court, the alleged husband was 200 feet. or more away from the prisoner at the time of the larceny, it was not error for the trial court to call the attention of the jury to the fact, and to charge that it was for them to say whether it did not rebut the presumption of coercion, and whether she was in his presence. Where husband and wife convicted jointly of receiving stolen goods, it was holden that the conviction of the wife could not be supported, though she had been more active than her husband, because it had not been left to the jury to say whether she received the goods in the absence of her husband. Rex v. Archer, 1 Moody, C. C. 143, 1854. —A married woman who swore falsely that she was next of kin to a person dying intestate, and so procured administration to the ef- fects, was held responsibie for the offense, though her husband was with her when she took the oath. R. v. 132 CRIMINAL LAW. [§ 97 And ordinarily the presumption works as much against the hus- band as it does in favor of the wife.” § 98. For offenses distinctly imputable to husband, he is primarily indictable. When the offense is one which, from the nature of things, is imputable to the husband, the pre- sumption of his exclusive agency is peculiarly strong. Hence, a feme covert, on whose premises her nusband has erected a nui- sance, cannot be punished criminally for its existence.’ But the husband and wife together may be indicted for forcible en- try and detainer, though in such case the wife’s punishment will be nominal; * and it is said that a married woman, by her own act (but not in respect to what is done by others at her com- mand, because al! such commands of hers are void), may com- mit and hence be indictable for the same offense. In such case the fine, set upon the wife, shall not be levied upon the husband ; for the husband is to be charged for the act or default of the wife only when he is made a party to the action, and judgment is rendered against him and his wife.® When the injury comes from a breach of duty exclusively imposed on a husband, e. g., providing food to an apprentice, the wife, being merely the servant of the husband, she will not be answerable for the consequences of his breach of duty, how- ever fatal, though she may be privy to his conduct.* § 99. For offenses distinctly imputable to wife, she is primarily indictable. A wife living apart from her hus- ercion, are inadmissible, being hear- Dicks, 1 Russell. Crimes, 4th ed. 34. Where a husband delivered threat- ening letter ignorantly as the agent of the wife, she alone was held to be punishable. Rex v. Hammond, 1 Leach, C. L. 4th ed. 444, 2 East, P. C. 1119, 1787. Liability for selling liquor in ab- sence of husband.—A married woman who, in the absence of her husband, sells liquor illegally, is responsible, unless she proved that she did so un- der his command or influence. Com. v. Murphy, 2 Gray, 510, 1854; Com. v. Butler, 1 Allen, 4, 1860. See Com. v. Welch, 97 Mass. 593, 1867. Infra, §§ 99, 1804. Husband’s declarations to third party, that the wife acted under co- say. Edwards v. State, 27 Ark. 493, 1873. 7 State v. Boyle, 13 R. I. 537, 1882. 1Infra, §§ 1760 et seq.; see People v. Townsend, 3 Hill, 479, 1842. See 26 Century Dig. col. 1851, § 385. 2State v. Harvey, 3 N. H. 65, 1826. 3Dalton, Country Justice, chap. 126; Hussey’s Case, 9 Coke, 71 b; Foster’s Case, 5 Coke, 59 a; Burn’s Justice of the Peace, 29th cd. title Wife. 4R. v. Squire, 1 Russell, Crimes, 3d. ed. 80, 678, infra, § 101; Staf- ford Lent Assizes, 1799; Burn’s Jus- tice of the Peace, 29th ed. tit. Wife. See 1 Russell, Crimes, 490, 491, § 100] FITNESS OF OFFENDER TO COMMIT OFFENSE. 133 band may be indicted alone, and punished for keeping a dis- orderly house, or house of ill-fame;! nor is it any defense that the husband was business manager of ‘the house.? So she may be indicted together with her husband, and punished with him, for the ‘same offense; for the malfeasance relates to the govern- ment of the house, in which the wife has a principal share, and constitutes an offense which may generally be presumed to be managed by the intrigues of her sex. She may be indicted for keeping a gaming-house,* and when, in the absence of her hus- band, though in the house where they live and trade together, she sells intoxicating liquors under such circumstances as would, but for her coverture, prove her to be a common seller, she may be indicted as such, unless it appears that she acted by his com- mand or under his coercion or influence.® As has been already incidentally noticed, the “married wom- en’s” acts, conferring particular business privileges on mar- ried women, do not change the common-law rules of marital criminal responsibility. Hence the husband is indictable for the wife’s act in the illegal sale of liquor in their common domi- cil.” § 100. In riot and conspiracy there must be others besides husband and wife. It kas been held that in cases of conspiracy and riot it will not suffice to join the husband and wife alone; and if all the parties named, except the husband and wife, be acquitted, judgment against the latter will be ar- rested. But if an overt act be performed by the wife apart from her husband, in execution of a conspiracy concerted by her, or concerning matters distinctively belonging to her sex, it 1[Eng.] Rex v. Dixon, 10 Mod. 335. [Mass.] Com. v. Lewis, 1 Met. 151, 1841. [Mo.] State v. Bentz, 11 Mo. 27, 1847. [S. C.] State v. Col- lins, 1 M’Cord, L. 355, 1821. See also infra, §§ 1726, 1804. As to criminal offenses for which 5Com. v. Murphy, 2 Gray, 1854. Supra, § 97. 6Com. v. Wood, 97 Mass. 1867; Com. v. Gannon, 97 Mass. 1867; Com. v. Welch, 97 Mass. 1867; Com. v. Barry, 115 Mass. 146, 1874. See Nolan v. Traber, 49 Md. 510, 225, 547, 593, wife is primarily liable, see 26 Cen- tury Dig. col. 1853, § 386. 2Com. v. Cheney, 114 Mass. 281, 1875. 31 Hawk. P. C. chap. 1, § 12; State v. Bentz, 11 Mo. 27, 1847, supra, § 94. # Rex v. Dixon, 10 Mod. 335. 460, 33 Am. Rep. 277, 1878. Supra, § 96; infra, § 1804. 7TInfra, § 1804. 11 Hawk. P. C. chap. 72, § 8; disapproved, however, in Casper v. State, 47 Wis. 535, 2 N. W. 1117, 1879. Infra, § 1659; Whart. Pl. & Pr. §§ 305, 755. 134 CRIMINAL LAW. [§ 100 may be questioned whether in such case she is not an independ- ent person. § 101. Distinctive rule as to accessories. The better opinion is, that in cases where a married woman incites her husband to a felony, she is an accessory before the fact;* but she cannot be treated as an accessory after the fact for receiv- ing her husband, knowing that he has committed a felony; ? nor for receiving goods feloniously stolen by him;* nor for concealing a felony jointly with her husband.* As we have seen, she will not be answerable for her husband’s breach of duty, however fatal, though she may be privy to his miscon- duct, if no duty be cast upon her, and she be merely passive.® A husband can be convicted of knowingly receiving goods stolen by his wife,® but not of receiving goods which she had previous- ly received without his cognizance, and passed to him.” IV. Ianorant Persons. § 102. Ignorance of law no defense to an indictment for a violation of law. If ignorance of a law were a de- fense to a prosecution for breaking such law, there is no law of which a villain would not be scrupulously ignorant. The more brutal, in this view, a man becomes, the more irrespon- sible would he be in the eye of the law, and the worst classes of society would be’ the most privileged. No penal law could be enforced, because there is no penal law a knowledge of which, by a due degree of self-stupefaction, could not be precluded. As, however, it is a postulate of penal laws that they should be obeyed, it is a condition of those laws that ignorance of them should be no defense to an indictment for their violation.? M’Athey, Leigh & C. C. C. 250, 9 Cox, C. C. 251, 32 L. J. Mag. Cas. N. S. 35, 8 Jur. N. S. 1218, 7 L. T. N. 11 Hale, P. C. 516; 2 Hawk. P. C. chap. 29, § 34. 21 Hale, P. C. 47; Reg. v. Manning, 2 Car. & K. 887, 888, 1849. 3 Reg. v. Brooks, 14 Eng. L. & Eq. Rep. 530, Dears. C. C. 184, 6 Cox, C. C. 148, 22 L. J. Mag. Cas. N. S..121, 17 Jur. 400, 1 Week. Rep. 318, 1854. 4Tbid.; 1 Hawk. P. C. chap. 1, § 10. 5R. v. Squire, 1 Russell, Crimes, 3d ed. 80, 678; Jerv. Arch. 9th ed. 17. supra, § 98. § 1240; 6See infra, Reg. v. 8. 433, 11 Week. Rep. 73, 1868. 7Reg. v. Dring, 7 Cox, C. C. 382, Dears. & B. 329, 3 Jur. N. S. 1182, 6 Week. Rep. 41, 1857. Infra, § 1240. 1See Wharton on Negligence, § 411, where this question is fully dis- cussed. As to presumption of knowledge oo see Wharton, Crim. Law, § 102] As to ignorance of the law not constituting a defense to uw criminal prosecution, see [Eng.] Reg. v. Price, 3 Perry & D. 421, 11 Ad. & El. 727, 9 iL. J. Mag. Cas. N. S. 49, 4 Jur. 291, 1840; Rex v. Esop, 7 Car. & P. 456, 1836; Reg. v. Good, 1 Car. & K. 185, 1842; Reg. v. Hoatson, 2 Car. & K. 777, 1847. [¥ed.] United States v. Anthony, 11 Blatchf. 200, Fed. Cas. No. 14,459, 1873; The Ann, 1 Gall. 62, Fed. Cas. No. 397, 1814; United States v. Learned, 1 Abb. (U. 8.) 488, Fed. Cas. No. 15,580, 1870. [Ala.] Schuster v. State, 48 Ala. 199, 1872; Hoover v. State, 59 Ala. 57, 1878. [Ga.] Levar v. State, 108 Ga. 42, 29 S. E. 467, 1897; Fraser v. State, 112 Ga. 13, 37 S. E. 114, 1900. [Ind.] Winehart v. State, 6 Ind. 30, 1855; State v. Main- ey, 65 Ind. 404, 1879. [Me.] State v. Goodenow, 65 Me. 36, 1 Am. Crim. Rep. 42, 1875. [Md.] Grumbine v. State, 60 Md. 355, 1882. [Mass.] Com. v. Bagley, 7 Pick. 279, 1828; Com. v. Elwell, 2 Met. 190, 35 Am. Dec. 398, 1841; Com. v. Boynton, 2 Allen, 160, 1861; Com. v. Goodman, 97 Mass. 117, 1867; Com. v. Em- mons, 98 Mass. 6, 1868; White v. White, 105 Mass. 325, 7 Am. Rep. 526, 1870; Com. v. O’Brien, 172 Mass. 248, 52 N. E. 77, 1898. [Miss.] Whitton v. State, 37 Miss. 379, 1863. {N. H.] State v. Carver, 69 N. H. 216, 39 Atl. 973, 1898. [N. J.] Cut- ter v. State, 36 N. J. L. 125, 1875. [N. Y.] People v. Powell, 63 N. Y. 8, 1875; People v. Bock, 69 Misc. 548, 125 N. Y. Supp. 301, 1910. [N. C.] State v. Boyett, 32 N. C. (10 Ired. L.) 3886, 1850; State v. Bryson, 81 N. C. 595, 1879; State v. McLean, 121 N. C. 589, 42 LRA. 721, 28 S. E. 140, 1897. [R. I] State v. Foster, 22 R. I. 163, 50 L.R.A. 339, 46 Atl. 833, 1900; State v. Hunt, 25 R. J. 75, 54 Atl. 937, 1903. [Tenn.] Walker v. State, 2 Swan, 287, 1852. [Tex.] Patrick v. State, 45 Tex. Crim. Rep. 587, 78 S. W. 947, 1903; McCallister v. State, 55 Tex. Crim. Rep. 392, 116 S. W. 1154, 1909. —Carrying pistol, ignorance of prohibition of the law, no defense. McCallister v. State, 55 Tex. Crim. Rep. 392, 116 8S. W. 1154, 1909. See FITNESS OF OFFENDER TO COMMIT OFFENSE. 135 People v. Bock, 69 Mise. 543, 125 N. Y. Supp. 301, 1910. —Foreigner cannot set up ignor- ance of the law as a defense, see Reg. v. Barronet, Dears. C. C. 51; Rex v. Esop, 7 Car. & P. 456, 1835. Cambioso v. Maffet, 2 Wash. C. C 98, Fed. Cas. No. 2,330, 1809. —In mitigation.—But that such de- fense may be set up in mitigation of punishment, see Rex v. Lynn, 2 T. R. 733, 1 Leach, C. L. 497; Fraser v. State, 112 Ga. 18, 37 S. E. 114, 1900. Advise of counsel furnishes no ex- cuse or justification for a violation of law. State v. Hunt, 25 R. I. 75, 54 Atl. 937, 1903. Belief—As to the law being wrong.—Belief in the unconstitu- tionality of a law; belief in its vio- lation of higher law; belief in its conflict with conscientious duty,— will be no defense to an indictment for disobedience to such law. Rey- nolds v. United States, 98 U. S. 145, 25 L. ed. 244, 1878. —Conscientious belief that an act is right (e. g., labor by a Jew on Sunday in contravention of the Sun- day laws) will not prevent such act from being indictable when made so by the State. Com. v. Has, 122 Mass. 40, 1877; Specht v. Com. 8 Pa. 312, 49 Am. Dec. 318, 1848. Compare: Cincinnati v. Rice, 15 Ohio, 225, 1846. See infra, § 1697. —The Roman common lav, in this respect, is more tender than the Eng- lish. When an offense is such jure gentium, then all persons are expec- ted to have notice that it is prohibit- ed, and are liable to punishment for its commission. But it is otherwise, by the Roman law, when a govern- ment makes an act, in itself innocent, penal. In this case ignorantia et error juris is a defense, unless there be notice either express or implied. See Savigny, System of Modern Ro- man Law, ili. pp. 111, 326. Indeed, there were certain conditions in which ignorantia legis is charitably assumed. Thus, for instance, .the female sex: “D. de L. Corn. De fals. (48. 10.) L. 38. § 2. D. ad L. Iul. de adulter. (48. 5.) So of infancy: L. 38. § 4. D. eod. So of rusticity: L. 7. § 4. D. de 136 iurisdict. (2. 1.) L. 3. § 22. D. de SC. Silan. (29. 5.) So of military service: L. 5. C. de his qui sibi adscrib. (9. 23.)” —The later doctrine is thus stated by Boehmer, as cited by Geib (Lehr- buch, ete., § 71): “Turis ignorantia contra delicta legibus communibus comprehensa vix allegari potest, tum quod talia ex recta ratione iam innotescant.... Facilius eius ratio habetur circa de- licta solis legibus positivis particu- laribus determinata, quia harum ig- norantia execusatior, nec tantopere culposa est, praeterea his saepe pro- hibetur, de quo ne somniando quidem quis cogitavit.” Compounding misdemeanor, indict- ment for; plea of ignorance of the law is no defense. State v. Carver, 69 N. H. 216, 39 Atl. 973, 1898. Extortion by officer not excused by ignorance of the law. Levar v. State, 103 Ga. 42, 29 S. E. 467, 1897. Ignorance of existence of statute, no defense in a prosecution for its violation. People v. Bock, 69 Misc. 543, 125 N. Y. Supp. 301, 1910. See McCallister v. State, 55 Tex. Crim. Rep. 392, 116 S. W. 1154, 1909. Intent to deceive by false repre- sentations and thereby get posses- sion of property; it is immaterial party did not know he was violat- ing the law. Com. v. O’Brien, 172 Mass. 248, 52 N. E. 77, 1898. Misapprehension of statute, or misinterpretation thereof, furnishes no defense to an indictment for its violation. Fraser v. State, 112 Ga. 18, 37 S. E. 114, 1900. Mistake as to a particular fact may relieve from criminal responsi- bility. State v. Hunt, 25 R. I. 75, 54 Atl. 937, 1903. Officers of a municipality acting outside of the scope of their author- ity in procuring the commission of a felony cannot be heard to say they acted in good faith and in ignorance of the law, because they are bound to know the law and the scope of their authority and official power. State v. McLean, 121 N. ©. 589, 42 L.R.A. 721, 28 S. E. 140, 1897. Presumption—Future interpreta- tions of statute. See Brent v. State, 43 Ala. 297, 1870, to the effect that the presumption of knowledge of CRIMINAL LAW. [§ 102 law does not extend to future contin- gent interpretations of statutes. That ignorance of law is no defense to an indictment for misconduct in office, or usurpation of office, see in- fra, § 1903; Wayman v. Com. 14 Bush, 467, 1877. As to illegal voting, infra, § 2189. As to conscientiousness as a de- fense, see infra, §§ 461, 2057. Illustration of rule in text—Miss Anthony’s Case. Of the rule in the text a marked illustration is to be found in a case decided by Judge Hunt, of the United States Supreme Court, at Canandaigua, New York, in June, 1873. The defendant, Susan B. Anthony, was indicted for illegal- ly voting for representative to Con- gress, in November, 1872. In defense she put in evidence the opinion given to her by learned counsel to the effect that she was so entitled to vote. Judge Hunt, however, in his charge to the jury, after discussing the question on its general relations, said: “The principle is the same im the case before us, and in all crimi- nal cases. The precise question has been several times decided, vie: that one illegally voting was bound and was assumed to know the law.” [N. Y.] Hamilton v. People, 57 Barb. 625, 1867. [N. C.] State v. Boyett, 32 N. C. (10 Ired. L.) 336, 1850; State v. Hart, 51 N. C. (6 Jones, L.) 389, 1858. [Tenn.}] McGuire v. State, 7 Humph. 54, 1846. See Com. v. Bradford, 9 Met. 268, 1844. Judge Hunt continues: “No sys- tem of criminal jurisprudence can be sustained upon any other prin- ciple. Assuming that Miss Anthony believed she had a right to vote,. that fact constitutes no defense if in truth she had not the right. She voluntarily gave a vote which was illegal, and thus is subject to the penalty of the law.” The defendant was convicted, and shortly afterward the inspectors of election, who reg- istered the name and received the votes of Miss Anthony and her co- defendants, were placed on trial. The proof on the part of the prose- cution was similar to that in the case of Miss Anthony. The defense proved the good faith of the parties accused in receiving the votes, and § 103] FITNESS OF OFFENDER TO COMMIT OFFENSE. 137 It is no defense to an indictment for a crime that it was the custom of the country to do the act that constituted the crime.* § 103. —But on indictments for negligence in appli- cation of law, non-specialist not chargeable with ignor- ance of specialty. A distinction, however, is to be noticed in respect to cases in which the gravamen is negligent ignorance of law. It may be stated as a general rule that the proof of motive for the com- mission of the offence charged does not show guilt, and that a want of proof of such motive does not establish the innocence of the accused.® ton & S. Med. Jur. §§ 399-405; Ide- ler, Lehrbuch, pp. 254-266; Specta- tor, July 26, 1879. In Woodburne’s Trial 16 How. St. Tr. 54, 1722, it was held that though the intent was to murder, and not to disfigure, the defendant might be convicted of maiming with intent to disfigure. This, which strains to its extremest tension the doctrine in the text, is sustained by Sir J. F. Stephen in his History of Criminal Law. 1[Fed.] Pointer v. United States, 151 U. S, 396, 38 L. ed. 208, 14 Sup. Ct. Rep. 410, 1894; Schmidt v. Unit- ed States, 66 C. C. A. 389, 133 Fed. 257, 1904. [Ark.] Green v. State, 88 Ark. 304, 1881. [Colo.] Keady v. People, 32 Colo. 57, 66 L.R A. 353, 74 Pac. 892, 1903. [Ind.] Reynolds v. State, 147 Ind. 3, 46 N. E. 31, 1897; Hinshaw v. State, 147 Ind. 334, 47 N. E. 157, 1897. [Miss.] Powell v. State, 67 Miss. 119, 6 So, 646, 1889. [Mo.] State v. Bobbitt, 215 Mo. 10, 114 S. W. 511, 1908; State v. David, 131 Mo. 380, 33 S. W 28, 1895. [N. Y.] People v..Cor- netti, 92 N. Y. 85, 1883; People v. Sliney, 137 N. Y. 570, 33 N. E. 150, 1893. [Or.] State v. Hembree, 54 Or. 468, 103 Pac. 1008, 1909. [Wis.] Cupps v. State, 120 Wis. 504, 102 Am. St. Rep. 996, 97 N. W. 210, 98 N. W. 546, 1893. Motive is presumed for every Crime, because sane men are re- garded as acting from motive only, although it is said there may be motiveless crimes. See Goodwin v. State, 96 Ind. 550, 566, 1884; State v. Cohn, 9 Nev. 179, 1874. —Over-large insurance upon goods may be shown as establishing mo- tive, on trial for arson. See [Ind.] Stitz v. State, 104 Ind. 361, 4 N. E. 146, 5 Am. Crim. Rep. 48, 1885, [Nev.] State v. Cohn, 9 Nev. 179, 1874. [N. H.] State v. Dearborn, 59 N. H. 348, 1879. —Proof aliunde to establish guilt need not be given before the question of motive is considered. See State v. Cohn, 9 Nev. 179, 1874; State v.. Palmer, 65 N. H. 216, 20 Atl. 7, & Am. Crim. Rep. 196, 1889. 2See supra, § 147. 8 Schmidt v. United States, 66 C. C. A. 389, 183 Fed. 257, 1904. 4State v. Hembree, 54 Or. 468, 103 Pac. 1008, 1909. 5 State v. Baldwin, 36 Kan. 1, 12 Pac. 318, 7 Mor. Min. Rep. 377, 1886. 6 Cupps v. State, 120 Wis. 504, 102 Am. St. Rep. 996, 97 N. W. 210, 98 N. W. 546, 1903. § 157] MALICE AND INTENT. 208 § 157. Unintended injury derives its character from purpose to which it is incidental. When an intent ex- ists to do wrong, and an unintended illegal act ensues as a nat- ural and probable consequence, the unintended wrong derives: its character from the general evil intent. A general malevolent purpose to break the law, for instance, or to inflict injury irre- spective of any particular malice, gives color to a particular wrongful act committed in execution of the general malevolent: purpose.? A man out of general malignity may fire on a crowd, or may displace a rail on a railway; and then, if any life be lost, he is responsible for murder, though he may have had no inten- tion of taking any particular life. It has been further ruled’ that if a man shots A by mistaking the person, when intending: to shoot B, he is responsible for shooting A, under statutes. which make it penal to shoot at another with intent to kill the person shot at.* And so has it been held with regard to murder 1See supra, §§ 107-110, 9 Crim. L. Mag. 145. [Fla.] Baker v. State, 30 Fla. 41, 11 So. 492, 1882. [Iowa] State v. McCahill, 72 Iowa, 111, 30 N. W. 553, 38 N. W. 599, 1887; State v. Munehrath, 78 Iowa, 268, 43 N. W. 211, 1889. [S. C.] State v. Le- velle, 34 S. C. 120, 27 Am. St. Rep. 799, 13 S. E. 319, 1890. Administering drug with intent merely to stupefy (State v. Wagner, 78 Mo. 644, 47 Am. Rep. 131, 1883; State v. Wells, 61 Iowa, 629, 47 Am. Rep. 822, 17 N. W. 90, 1883); or to excite sexual desire (State v. Des- champs, 41 La. Ann. 1051, 7 So. 133, 1890); party will be liable if it cause death. Conspiring to commit particular crime; where one of the conspirators associated in the criminal enterprise commits a crime in furtherance of the common object of the conspiracy, all are held equally responsible for such crime. State v. Johnson, 7 Or. 210, 1879. But if one of the conspirators commits a crime not embodied in the general purpose of the conspir- acy, the other conspirators will not be responsible for such crime. Frank v. State, 27 Ala. 37, 1855; Mercer- smith v. State, 8 Tex. App. 211, 1880. Criminal intent must be shown, at common law, in order to convict of offense charged; but it is not necessary to show that accused in- tended to commit the particular: wrong which resulted from his act Com. v. Hawkins, 157 Mass. 551, 32 N. E. 862, 1893. 2State v. Stanton, 37 Conn. 421, 1870; Com. v. Hawkins, 157 Mass.. 551, 32 N. E. 862, 1893; Com. v. Murphy, 165 Mass. 66, 30 L.R.A. 734, 52 Am. St. Rep. 496, 42 N. E.. 504, 10 Am. Crim. Rep. 67, 1896. Commission of greater offense than the one intended; proof of intent. to commit the greater offense is not necessary to a conviction, whether: the offence be malum in se or malum prohibitum. State v. Stanton, 37 Conn. 421, 1870. Different from that intended; par- ty doing the criminal act is respon- sible criminally. Com. v. Murphy, 165 Mass. 66, 30 L.R.A. 734, 52 Am. St. Rep. 496, 42 N. E. 504, 10 Am, Crim. Rep. 67, 1896. 8See supra, § 141; infra, §§ 225, 448, 444; Morgan v. State, 13: Smedes & M. 242, 1849. 4[Eng.] Rex v. Jarvis, 2 Moody & R. 40, 1837; Reg. v. Smith, Dears. C. C. 559, 25 L. J. Mag. Cas. N. 8S. 29, 1 Jur. N. S, 1116, 4 Week. Rep. 202 CRIMINAL LAW. [§ 157 at common law.’ We have the same distinction taken as to burglary, where the intent was to steal something different from that actually stolen; ® and as to arson, where the intent was to get a reward by giving the earliest information of a fire at the police station, and not to injure the owner;” or where an un- intended house was burned.* And so if there be a deliberate intent, when taking lost goods, to steal, no matter who may be the owner, this intent may be viewed as an intent to steal from A, when A is subsequently discovered as owner.® When there is a general intent to do evil, in other words, of which evil the wrong actually done may be looked upon as a prob- able incident, then the party having such general intent is to be regarded as having intended the particular wrong.” A man us- ing a deadly weapon in a crowd, intending to kill, must be regarded as intending to kill all within the range of the weapon, whether as a primary object, or as incidental to such primary object." And a general intent to do evil, such as to cover all 128, 7 Cox, C. C. 51, 33 Eng. L. & Eq. Rep. 567, 1855. [Cal.] People v. Torres, 38 Cal. 141, 1869. [Ind.] Walker v. State, 8 Ind. 290, 1856. [Mass.] Com. v. McLaughlin, 12 Cush. 615, 1853. [Ohio] Callahan v. State, 21 Ohio St. 306, 1876. See also supra § 138, infra, § 845. 5 See infra, §§ 441-445, 845; Reg. v. Saunders, 2 Plowd. 473, 1876; Angell v. State, 36 Tex. 542, 14 Am, Rep. 380, 1872. 6 Infra, § 1024. 7 Reg. v. Regan, 4 Cox, C. C. 335, 1850. Attack to rape; robbery.—It has also been held that when a party intending to commit a rape takes money from the woman attacked, it may be robbery, though no money was demanded. Rex v. Blackham, 2 East, P. C. 711, 1787; infra, § 1091. 8 Rex v Pedley, 2 East, P. C. 1026; 22 Geo. IIT; Proberts’s Case, 2 East, P. C. 1030; 20 Geo. III. Infra, §§ 1067, 1547. ® Reg. v. Moore, 1 Leigh & C. C. C. 1, 1861, 8 Cox, C. C. 416, 1861. 10 Distinction taken in the old books between malum in se and malum prohibitum in this relation is now exploded A man who inflicts injury incidentally to attempting a statutory crime is, on the reasoning of the text, as responsible as is the man who inflicts injury incidentally to a common-law crime. 11 [Eng.] Rex v. Bailey, Russ. & R. C. C. 1, 1800. [Ark.] Scott v. State, 49 Ark. 156, 4S. W. 750, 1886. [111] Spies v. People, 122 Ill. 1, 3 Am. St. Rep. 320, 12 N. E. 865, 17 N. E. 898, 6 Am. Crim. Rep. 570, 1887. [Iowa] State v. Meyers, 19 Iowa, 517, 1865; State v. Adams, 78 lowa, 292, 48 N. W. 194, 1889. [Ky.] Golliher v. Com. 2 Duv. 163, 87 Am. Dec. 493, 1865; Combs v. Com. 14 Ky. L. Rep. 703, 21 8. W. 353, 1893. [Mich.] People v. Raher, 92 Mich. 165, 31 Am. St. Rep. 575, 52 N. W. 625, 1892. [N. C.] State v. Nash, 86 N. C. 650, 41 Am. Rep. 472, 1882. [Wis.] Minaghan v. State, 77 Wis. 643, 46 N. W. 894, 1890. Man is criminally liable for an accident that may happen from shooting in a public street. Sparks v. Com. 3 Bush, 111, 96 Am. Dec. 196, 1867; People v. Fuller, 2 Park. Crim. Rep. 16, 1823. Reckless behavior that shows a criminal disregard for the safety of others; liability for. See [Ala.] Johnson v. State, 94 Ala. 35, 10 So. 667, 1891. [Ga.] Pool v. State, 87 § 157] MALICE AND INTENT. 203 the natural probable consequences of the act, may be inferred from the circumstances of the case.” If, however, as will here- after be seen, it is plain that the offender’s will was directed exclusively to a particular end in which he failed, and that the act done by him was intended in any sense, and was not a natural or probable result of his misconduct, then the more logical course is to indict him for a malicious attempt to do the unperformed act and for negligence in the act performed.” Ga. 526, 13 8. E. 556, 1891; Cook v. State, 93 Ga. 200, 18 S. E. 823, 1893. [Ill.] Mayes v. People, 106 Ill. 306, 46 Am. Rep. 698, 1883. [Ky.] Com. v. Matthews, 89 Ky. 287, 12 S. W. 333, 1889; Brown v. Com. 91 Ky. 472, 16 S. W. 133, 1891; Guinn v. Com. 11 Ky. L. Rep. 615, 12 S. W. €72, 1889. [Mich.] People v. Stuben- voll, 62 Mich. 329, 28 N. W. 883, 1886. [Mo.] State v. Emery, 78 Mo. 77, 47 Am. Rep. 92, 1883; State v. Morrison, 104 Mo. 638, 16 S. W. 492, 1891; State v. Grote, 109 Mo. 345, 19 S. W. 93, 1891. [N. C.] State v. Barbee, 92 N. C. 820, 6 Am. Crim. Rep. 178, 1885. But the offense will not be of the highest grade. Johnson v. State, 94 Ala. 35, 10 So. 667, 1891; Burton v State, 92 Ga. 449, 17 S. E. 99, 1893. 12 Supra, §§ 141-143. [Eng.] Reg. v. Fretwell, Leigh & C. C. C. 443, 9 Cox, C. C 471, 33 L. J. Mag. Cas. N. S. 128, 10 Jur. N. S. 595, 10 L. T. N. S. 428, 12 Week. Rep. 751. [Ala.] Washington v. State, 60 Ala. 10, 31 Am. Rep. 28, 3 Am. Crim. Rep. 171, 1877. [Del.] State v. Sloan- aker, Houst. Crim. Rep. (Del.) 62, 1858. [Me.] State v. Gilman, 69 Me. 163, 31 Am. Rep. 257, 3 Am. Crim. Rep. 15, 1879. [Tex.] Aiken v. State, 10 Tex. App. 610, 1881. See fully cases cited, infra, §§ 441, et seq. 509. Firing own house——Thus, he who sets fire to his own house, intending to defraud the insurers, and burns his neighbor’s house by the commu- nicating of the fire, is indictable for maliciously burning the latter house. Proberts’s Case, 2 East, P. C. 1030, 2098; infra, § 506. That injury must be a probable consequence of the act, see Reg. v. Faulkner, 13 Cox, C. C. 550, Ir. Rep. 11 C. L. 8, 1877, cited infra, § 1057; Com. v. Adams, 114 Mass. 323, 19 Am. Rep. 362, 1873. 13 Reg. v. Pembliton, L. R. 2 C. C. 119, 12 Cox, C. C. 607, 43 L. J. Mag. Cas. N. S. 91, 30 L. T. N.S. 405, 22 Week. Rep. 553, 1874; infra, § 1320. As to concurrence of malice and negligence, see infra, § 165. The killing of A in mistake for B is well settled to be with malicious intent. Infra, §§ 441-447; State v. Smith, 32 Me. 369, 54 Am. Dec. 578, 1851;. State v. Payton, 90 Mo. 220, 28. W. 394, 1886. Aiming at B and killing C—And in spite of the contrary decisions, the great weight of authority is in favor of tho view that if A aims at B and hits C the intent will be transferred to C, and A will be guil- ty. [Eng.] Reg. v. Stopford, 11 Cox, C. C. 648, 1870; Reg. v. Latimer, L. R. 17 Q. B. Div. 359, 16 Cox, C. C. 70, 55 L. J. Mag. Cas. N. S. 135, 54 L. T. N. S. 768, 51 J. P. 184, 1886. [Ill.] Dunaway v. People, 110 Tl. 333, 51 Am. Rep. 686, 4 Am. Crim. Rep. 60, 1884. [Ky.] Burchet v. Com. 8 Ky. L. Rep. 258, 1 S. W. 423, 1886; Jennings v. Com. 13 Ky. L. Rep. 79, 16 S. W. 348, 1891. [Miss.] McGehee v. State, 62 Miss 772, 52 Am. Rep. 209, 1885. [Mont.] Territory v. Rowand, 8 Mont. 432, 20 Pac. 688, 21 Pac. 19, 1889. [Pa.] Com. v. Breyessee, 160 Pa 451, 40 Am. St. Rep. 729, 28 Atl. 824, 1894. Contra: [Eng.] Reg. v. Hewlett, 1 Fost. & F. 91, 1858. [Ark.] Lace- field v. State, 34 Ark. 275, 36 Am. Rep. 8, 1879. [Ky.] Com. v. Morgan, 11 Bush, 601, 1876. [Miss.] Morgan v. State, 13 Smedes & M. 242, 1849; 204 CRIMINAL LAW. [§ 157 A third contingency arises when A, looking out for B, sees C, whom he mistakes for B, and whom he kills. This is murder, be- cause his intent to kill, however mistaken his reasoning, was real- ly pointed at C.* But where one of several utterly distinct in- tents is necessary to constitute an offense, proof of one will not sustain the averment of another. Thus the allegation of an in- tent to steal, in an indictment for burglary, will not be sustained by proof of an attempt to commit a sexual offense.” § 158. Motive need not be proportionate to heinous- ness of crime. It is sometimes argued, “Is it likely that one man should kill another for so small an object? Are we not to infer when there is a homicide which is followed by the stealing of a mere trifle, that the homicide was the result of sudden pas- sion, rather than lucri causa? Or for a mere prejudice or spite is it likely that one man may assassinate another, and thus ex- pose himself to the gallows? Or a person likely to incur the pen- alties of larceny for the sake of an article of no intrinsic worth ?” No doubt when a tender mother kills a child, or a friend kills a friend, and nothing more than the fact of killing is proved, we may be lead to infer misadventure or insanity from the motive- lessness of the act. But we have no right to make such inference because the motive is disproportionate. We are all of us apt to act on very inadequate motives; and the history of crime shows Barcus v. State, 49 Miss. 17,19 Am. N. W. 793, 1885; Pinder v. State, Rep. 1, 1 Am. Crim Rep. 249, 1873. [Utah] People v. Robinson, 6 Utah, 101, 21 Pac. 403, 1889. | The grade of offense is the same as if the criminal had effected his original intention. See [Fla.] Pinder v. State, 27 Fla. 370, 26 Am. St. Rep. 75, 8 So. 837, 1891. [Mo.] State v. Henson, 81 Mo. 384, 1884; State v. Montgomery, 91 Mo. 52, 3 8. W. 379, 1886; State v. Renfrow, 111 Mo. 589, 20 S. W. 299, 1892. [Pa.] Com. v. Breyessee, 160 Pa. 451, 40 Am. St. Rep. 729, 28 Atl. 824, 1894. —Except that it will reduce homi- cide to murder of the second degree. Musick v. State, 21 Tex. App 69, 18 S. W. 95, 1886. Killing C for B justifiable when.— If the killing of B would have been justifiable, the killing of C by- mis- take or accident will be excusable. State v. Spaulding, 34 Minn. 361, 25 27 Fla. 370, 26 Am. St. Rep. 75, 8 So. 837, 1891; Butler v. State, 92 Ga. 601, 19 S. E. 51, 1893. See 10 Cent. L. J. 37, et seq. 14See infra, §§ 441, 442; Meyer, Lehrbuch, 1875, § 30. Burning by mistake—Averments in indictment.—The old doctrine that an intention to burn A’s house will sustain an averment, in an in- dictment for the arson of B’s house, that the intent was to burn B’s house (1 Curwwood’s Hawk. P. C. p. 140), can no longer be sustained. Whar- ton, Crim. Ev. §§ 149-50. See Reg. v. Faulkner, 18 Cox, C. C. 550, Ir. Rep. 11 C. L. 8, 1877. 15 Infra, § 1025; supra, § 88, 108- 113 et seq.; and see Wharton, Crim. Ev. 9th ed. § 149. See, however, State v. Ruhl, 8 Iowa, 447, 1859. Cited supra, § 108; infra, §§ 2103, 2108. § 160] MALICE AND INTENT. 205 that murders are generally committed from motives comparative- ly trivial. A man unaccustomed to control his passions, and un- regulated by religious or moral sense, exaggerates an affront, or nourishes a suspicion, until he determines that only the blood of the supposed offender can relieve the pang. For the smallest plunder, also, murders have been deliberately executed. Crime is rarely logical. Under a government where the laws are exe- cuted with ordinary certainty, all crime is a blunder as well as a wrong. If we should hold that no crime is to be punished except such as is rational, then there would be no crime to be punished, for no crime can be found that is rational. The motive is never correlative to the crime; never accurately proportioned to it. Nor does this apply solely to the very poor. Very rich men have been known to defraud others even of trifles, to forge wills, to ‘kidnap and kill, so that an inheritance might be theirs. When a powerful passion seeks gratification, it is no extenuation that the act is illogical; for when passion is once allowed to operate, reason loosens its restraints, and hence when there is a general wrongful intent, no specific commensurate motive need be shown.* § 159. Malice inferable from facts. Malice, as is else- where abundantly shown,’ is to be inferred from all the facts in the case, as a presumption of fact, and is never to be arbitrarily assumed as a presumption of law.® § 160. Consciousness of unlawfulness not essential. To malice, consciousness of unlawfulness is not essential. At the first glance, it is true, it seems hard to punish a person for doing that which he thinks he has a right to do. And in questions of title to property this is undoubtedly the rule, because a man can- 1See [Eng.] Reg. v. Fursey, 6 Car. & P. 81, 1833. [Ohio] Forsythe v. State, 6 Ohio, 19, 1833. [Pa.] Kelly v. Com. 11 Serg. & R. 345, 1824; Laros v. Com. 84 Pa. 200, 1877; McLain v. Com. 99 Pa. 86, 1881. [Tex.] Preston v. State, 8 Tex. App. 30, 1880; Hubby v. State, 8 Tex. App. 597, 1880. 1See [Eng.] Wharton, Crim. Ev. 8§ 734, 764; Rex v. Harvey, 3 Dow]. & R. 464, 2 Barn. & C. 257, 2 L. J. K. B. 4, 26 Revised Rep. 337, 1823; Rex v. Price, 5 Car. & P. 510, 1833; Reg. v. Selten, 11 Cox, C. C. 674, 1871. [Ga.] Hayes v. State, 58 Ga. 35, 1877. [Pa.] Smith v. Com. 100 Pa. 324, 1882. But see [Tex.] Brown v. State, 4 Tex. App. 275, 1878 2See supra, §§ 146, 147. 3 Wharton, Crim. Ev. §§ 39, 40, 734, 764, 6 Enc. Ev. pp. 587, 625. Same rule is applicable to scienter: Bonker v.-People, 37 Mich. 4, 2 Am, Crim. Rep. 79, 1877. —In cases of homicide. Infra, § 506; also, 6 Enc. Ev. p. 583. 206 CRIMINAL LAW. [§ 160 not be said to intend to steal that which he believes to be his own. In other cases also, the knowledge that a thing is unlawful (in other words, the scienter) is an essential ingredient of the of- fence, as where the charge is an assault on an official person, knowing his legal status. But apart from these exceptions, igno- rance of the law, as is elsewhere shown, is no defense; ? other- wise, the administration of penal law would depend on the un- certain and unascertainable mental conditions of persons ac- cused. § 161. Malice distinguishable from fraud. The task, oft- en pronounced to be impvssible, of exhaustively defining fraud, will not be here attempted.’ It is enough to say, that fraud in a general sense, is the deceitful unlawful appropriation of the property of another, and a fraudulent intent is the intent to ef- fect such appropriation. All fraud, therefore, is malicious, though all malice is not fraud, since may malicious offenses (e. g-, those falling under the head of malicious mischief) exclude the idea of such appropriation. To fraud, also, deceit is es- sential, which is not always the case with malicious offenses. A man may openly before the public rob another, yet, though this would be malicious, and would be indictable as robbery, it would not be fraudulent, as involving no deceit. 1See supra, § 102. 1See 3 Stephen, History Crim, Law, 121, CHAPTER V. NEGLIGENCE: AND HEREIN OF OMISSIONS. 162. Negligence is the omission of usual care. 163. Negligence an intellectual, malice a moral, defect. 164. Tests of indictable negligence. 165. Concurrence of malice and negligence. 166. Negligence cannot constitute accessaryship. 167. An omission, to be indictable, must be a defective discharge of duty. 168. Omissions are breaches of affirmative commands; commissions, of negative commands. 169. Classification of omissions. 170. Omissions may be malicious as well as negligent. 171. Mere omission to render help not indictable. 172. Omission to guard a dangerous agency indictable. 173. Not necessary the riegligence should be in violation of a contract, or the subject of civil suit. § 174. Master may be liable for servant’s negligence. Cm Wr > Wr GM Tn MQ Ln Mr Mr § 162. Negligence is the omission of usual care. A negligent offence is an offence which ensues from a defective discharge of a duty, which defect could have been avoided by the exercise, by the offender, of that care which is usual, under similar circumstances, with prudent persons of the same class.” Negligence is of two kinds: culpa levis, which is the lack of the diligence and care usual with good specialists of the particular class under the circumstances; and culpa lata, which is the lack of the diligence and care exercised by honest and worthy non- specialists, dealing with similar objects.? In criminal cases this distinction operates mainly to determine the degree of evi- dence required to convict. A non-specialist (e. g., a person not claiming to be a physician or lawyer) cannot be convicted mere- 1 Wharton, Neg. chap. i. See dis- conduct described and denounced in cussion in 4 Crim. L. Mag. 8. See statutes, or in language in general State v. Emery, 78 Mo. 77, 47 Am. use. See State v. Fowler, 13 Idaho, Rep. 92, 1883. 317, 89 Pac. 757, 1907. Criminal acts punished with equal 2%See Wharton, Neg. §§ 27 et seq. severity, whether they are acts FA 7 208 CRIMINAL LAW. [§ 162 ly on proof of want of or failure to apply due qualifications; while a person claiming to be a specialist can be convicted on such proof.* Culpa levissima, or that slight aberration from duty incident to all human action, is not punishable, since, as there are no persons to whom such negligence is not imputable, ‘there are no persons, unless we recognize its non-indictability, who could escape punishment.* § 163. Negligence an intellectual, malice a moral, defect. Malice, as is elsewhere noticed,’ arises from an evil purpose, negligence from a failure of purpose; malice is imput- able to a defect of heart, negligence to a defect of intellect.* If what results corresponds to what was intended, then the offence is malicious; if it does not correspond to what was intended, then, if the actor did not at the time exercise due care, the of- fence is negligent. 3 Wharton, § 114. As to physicians, see infra, § 487. 4 Wharton, Neg. § 26. Negligent offenses are defined by Sir J. F. Stephen’s as follows: “Everyone upon whom the law im- poses any duty, or who has by con- tract, or by any wrongful act, taken upon himself any duty tending to the preservation of life, and who neglects to perform that duty, and thereby causes the death of (or - bodily injury to) any person, com- mits the same offense as if he had caused the same effect by an act done in the state of mind, as to in- tent or otherwise, which accom- panied the neglect of duty. “Provided, that no one is deemed to have committed a crime only be- cause he has caused the death of, or bodily injury to, another by neg- ligence which is not culpable. What amount of negligence can be called culpable is a question of degree for the jury, depending on the circum- stances of each particular case. An intentional omission to discharge legal duty always constitutes cul- pable negligence. “Provided, also, that no one is deemed to have committed a crime by reason of the negligence of any servant or agent employed by him.” Neg. § 26; supra, On what we may call, therefore, the sub- Dig. Crim. Law, 5th ed. art. 232. See Rex v. Allen, 7 Car. & P. 153, 1885; Reg. v. Barrett, 2 Car. & K. 348, 4 Mor. Min. Rep. 171, 1846; R. v. Conrahy, 2 Craw. & D. (Ir.) 86, 1844; Rex v. Tindall, 1 Nev. & P. 719, 6 Ad. & El. 143, 6 L. J. Mag. Cas. N. S. 97, 1837. To impose criminal responsibility, Sir J. F. Stephen, 3 History Crim. Law, 11, maintains that there “must be more, but no one can say how much more, carelessness than is re- quired in order to create a civil lia- bility. For instance, many railway accidents are caused by a momentary forgetfulness or want of presence of mind, which are sufficient to involve the railway in civil liability, but are not sufficient to make the railway servant guilty of manslaughter if death is caused.” But the better view is that the only difference be- tween criminal and civil procedure in such case is that in the first there can be no conviction if there be rea- sonable doubt of guilt, while in the second the verdict goes with pre- ponderance of proof. 1Supra, § 187; and see Wharton, Neg. § 7. 2See United States v. Keller, 19 Fed. 638, 1884; Siate v. Smith, 65 Me. 257, 1874; 2 Stephen, Hist. Crim. Law, pp. 95 et seq. § 165] NEGLIGENCE: AND HEREIN OF OMISSIONS. 209 jective side of an offence, there are two phases of indictability, the malicious and the negligent, corresponding to the ancient dolus and culpa. The legislature, however, may make penal dangerous acts irrespective of malice or negligence.® § 164. Tests of indictable negligence. Not every neg- ligent act is necessarily indictable. The following incidents, however, may be noticed as involving indictability : 1. Infractions of police order.—By statute, and sometimes by common law, specific duties become incumbent on all citizens. For non-performance of such duties, unless another special rem- edy be provided, an indictment may lie. 2. Imperfect discharge of official duty. —Wherever a specific duty is imposed on a public officer, there a negligent defect in the discharge of this duty, when inflicting injury on an indi- vidual, is indictable.? 8. Omission to discharge specific duty assumed or imposed by law.—As we will presently see, this kind of negligence, when followed by injury, is indictable.’ 4, Meddling with dangerous agencies.—It is the duty of all men to be cautious in dealing with dangerous agencies; and who- ever, by carelessness in handling such agencies, injures another, is indictable.* § 165. Concurrence of malice and negligence. Interest- ing questions may arise when malice and negligence (or dolus and culpa) concur in a particular transaction. This may hap- pen as follows: 1. When there are two successive acts of the same person, in the first of which there is a criminal intent which fails of execution, and in the second of which, without the intent to ef- fect it, the object designed in the first act is effected. Reg. v. Roberts, Dears. C. C. 539, 1855, 33 Eng. L. & Eq. Rep. 553,. 25 L, J. Mag. Cas. N. 8. 17, 1 Jur, N.. § 212] ATTEMPTS. 271 falsely to accuse another of crime, if any step be taken which, in the usual course of events, would lead to a conviction, even though the accusation take not the form of libel. In this view, the fabrication of mechanical inculpatory evidence is a sub- stantive misdemeanor,” witness.® and a fortiori, the attempt to bribe a But to make an attempt indictable it must be to commit a consummated, not an inchoate, offense. Hence no indictment lies for an attempt to commit an attempt or assault.® S. 1094, 4 Week. Rep. 128, 7 Cox, ©. C. 39. [Canada] Reg. v. Goff, 9 U. C. C. P. 438. [Ala.] Ben v..State, 22 Ala. 9, 58 Am. Dec. 284, 1853 (at- tempt to poison indictable); Berde- aux v. Davis, 58 Ala. 611, 1878. [Ill.] Smith v. People, 25 Ill. 17, 16 Am. Dec. 780, 1860 (combination to accomplish, by unlawful means, act not in itself criminal, is indictable). [Ky.] Ross v. Com. 2 B. Mon. 417, 1841. [Me.] State v. Murray, 15 Me. 100, 1887. [Mass.] Com. v. Kings- bury, 5 Mass. 106, 1809; Com. v. Harrington, 3 Pick. 26, 1824; Com. v. Tolman, 149 Mass. 229, 3 L.R.A. 747, 14 Am. St. Rep. 414, 21 N. E. 377, 1889. [Mo.] State v. Mont- gomery, 109 Mo. 645, 32 Am. St. Rep. 684, 19 S. W. 221, 1892. [N. J.J] State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248, 1849 (attempt to procure abortion indictable). [N. Y.] Demarest v. Haring, 6 Cow. 76, 1826. [N. C.J] State v. Hefner, 129 N. C. 548, 40 S. E. 2, 1901. [Pa.] Smith v. Com. 54 Pa. 209, 93 Am. Dec. 686, 1867; Com. v. Rodman, 34 Pa. Super. Ct. 607, 1907. [S. C.J] State v. Maner, 2 Hill, L. 453, 1834; Willis v. Jolliffe, 11 Rich. Eq. 447, 1860. [Tenn.] Nicholson v. State, 9 Baxt. 258, 1878; Whitesides v. State, 11 Lea, 474, 1883; Thompson v. State, 105 Tenn. 177, 51 L.R.A. 883, 80 Am. St. Rep. 875, 58 S. W. 213, 1900. [Vt.] State v. Keyes, 8 Vt. 57, 30 Am. Dec. 450, 1836. Attempt to commit a crime is a misdemeanor, in and of itself. Willis v. Jolliffe, 11 Rich. Eq. 447, 1860. See State v. Hefner, 129 N. C. 548, 40 S. E. 2, 1901. Attempt to do act which, if ac- complished, would be an indictable offense, is indictable. Com. v. Tol- man, 149 Mass. 229, 3 L.R.A. 747, 14 Am. St. Rep. 414, 21 N. E. 377, 1889. Attempt to commit a misdemeanor is a misdemeanor, whether the at- tempted act is prohibited by statute or constitutes an offense at common law. [Md.] Lamb v. State, 66 Md. 285, 7 Atl. 399, 1887. [Pa.] Smith v. Com. 54 Pa. 209, 93 Am. Dec. 686, 1867; Com. v. Rodman, 34 Pa. Super. Ct. 607, 1907; Com. v. Jones, 22 Pittsb. L. J. 55, 1874. [Tenn.] Thompson v. State, 105 Tenn. 177, 51 L.R.A. 883, 80 Am. St. Rep. 875, 58 S. W. 213, 1900. Attempt to make unlawful sale of human dead body is a misdemeanor. Ibid. Compare Whitesides v. State, 11 Lea, 741, 1883, holding attempt to commit a misdemeanor made so by statute is not indictable. 7Rex v. Simmons, 1 Wils. 329. 8Infra, § 1596. “Attempt to commit crime,” defi- nition—According to Sir J. F. Stephen (Digest Crim. Law, 5th ed. art. 50), “an attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted.” Criticism of definition—This defi- nition has two defects. In the first place, it does not include attempts with unsuitable and yet apparently effective means, which would not, even if uninterrupted, result in a consummated crime. Infra, § 221. In the second place, it includes at- tempts voluntarily abandoned. As to attempts to commit crime, see 1 Words & Phrases, 622-627. 9See [Eng.] Reg. v. King, 14 Cox, CRIMINAL LAW. [§ 213 272 § 213. Mere words do not constitute an attempt. Mere words, unless they are libelous, seditious, obscene, or pro- vocative of breaches of the public peace, are not the subject of penal judicial action. Even when they express illegal purposes, they are often merely speculative; are uttered often by weak men as braggadocio; and always belong to a domain which criminal courts cannot invade without peril to individual free- dom, and to the just and liberal progress of society. This liberty to express thought is recognized in all systems of civilized jurisprudence. “Cogitationis penam nemo patitur’” was a maxim of the Roman law,’ which is now accepted as part of the judicial system of all Christendom, and is adopted in the codes of the most arbitrary nations of Europe.” And by the Roman common law, even talking about a criminal intent, and thus giving to it public expression, does not constitute, unless there be treason, an attempt.® C. C. 484, 1879. [Ga.] Taylor v. State, 50 Ga. 79, 1873; infra, § 611. [Tex.] Brown v. State, 7 Tex. App. 569, 1880. See also infra, § 806. 1L. 18, D. de Peenis, xlviii. 19. Declaratiors of intention do not constitute an attempt. People v. Murray, 14 Cal. 159, 1859; State v. McCarty, 54 Kan. 52, 36 Pac. 338, 1894. Mere words, however, may consti- tute the offense of an “attempt” where they solicit the commission of an offense. See [Eng.] Reg. v. Rainsford, 18 Cox, C. C. 9, 31 L. T. N. S. 488; Rex v. Higgins, 2 East, 5, 6 Revised Rep. 358; R. v. Turney, Holt, 395. [Fed.] United States v. Ravara, 2 Dall. 297, 1 L. ed. 388, Fed. Cas. No. 16,122, 1793. [Conn.] State v. Avery, 7 Conn. 266, 18 Am. Dec. 105, 1828 [Ky.] Com. v. Tibbs, 1 Dana, 524, 1833. [Mass.] Com. v Warrington, 3 Pick. 26, 1825; Com. v. Whitehead, 2 Boston L. Rep. 148, 18389. [N. Y.] People v. Bush, 4 Hill, 133, 1843; Demarest v. Haring, 6 Cow. 76, 1826. [N.C.] State v. Farrier, 8 N. C. (1 Hawks) 487, 1821. [Pa.] Com. v. M’Gill, 1 Ad- dison, (Pa.) 21, 1878; Com. v. Kostenbauder, 1 Sadler (Pa.) 576, 17 W. N. C. 303. [S. C.] State v. Taylor, 3 Brev. 243, 1812. [Tenn.] Collins v. State, 3 Heisk. 14, 1870. [Vt.] State v. Coldwell, 2 Tyler, (Vt.) 212, 1802; State v. Keyes, 8 Vt. 57, 30 Am. Dec. 450, 1836; State v. Carpenter, 20 Vt. 9, 1848. See, also, infra, § 218; and note in 3 LRA. 747. 2See this shown in Holzendorff’s Ency. “Versuch.” 8 Very curious citations on this point are given by Geib, Lehrbuch, ete., § 99, among which are the fol- lowing: Romagnosi Genesi del diritto penale, pp. 221, 222. Tentare un delitto, non é@ soltanto pensarlo, o deliberarlo; o vero dire di averlo pensato, o deliberato; ma bensi egli @ porre in opera tutto quello che ne pud ottenere Jl’esecuzione, Dunque il palesare il pensiero e la deliberazione di un delitto, cui perd si @ desistio di mandare ad esecu- . zione, ovvero la jattanza di volerlo effetuare, sensa perd che s’intrap- renda nulla in fatto colle azioni fisiche ed esterne, sono cose che non si possono veranente riguardare come attentati, né si potrebbero punire come tali. Filangieri, Scienza della legislazione, iii. 87. (T. iii. pp. 326, 327.) Carmignani, Teoria delle leggi ii. pp. 302-304. Boehmer, Meditt. in ©. C. C. art. 178, § 3. § 215] ATTEMPTS. 273 § 214. Not an offense to attempt to commit a non- indictable offense; attempts at suicide. Where a statute makes indictable attempts to commit indictable offenses, this has been held not to include an attempt to commit suicide, consummated suicide being beyond the jurisdiction of the courts.’ But at common law an attempt to commit suicide is indictable.? § 215. Intent necessary. To constitute an attempt, it is essential that there should be an unlawful coincident intention to do the thing attempted, which intention must be logically inferable from the facts. On the other hand, as we have already Wintgens, Diss. cit. pp. 19-24, 81. Leliévre, Comm. cit. pp. 7-18, 26-28. The ‘same view is expressed by Willes, J., in Mulcahy v. Reg. L. R. 3 H. L. 306, 1868. 1Com. v. Dennis, 105 Mass. 162, 1870. Infra, § 254. 2Infra, § 454; Reg. v. Doody, 6 Cox, C. C. 463, 1854; Reg. v. Burgess, Leigh & C. C. C. 258, 1862, 9 Cox €. C. 247, 32 L. J. Mag. Cas. N. S. 55, 9 Jur. N.S. 28, 7 L. T. N.S. 472, 11 Week. Rep. 96, approved in Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109, 1877. As to attempts to commit suicide being indictable, see State v. Carney, 69 N. J. L. 478, 55 Atl. 44, 1903. —As to not being indictable, see May v. Pennell, 101 Me. 516, 7 L.R.A.(N.S.) 286, 115 Am. St. Rep. 334, 64 Atl. 885, 8 A. & E. Ann. Cas. 351, 1906. Com. v. Dennis, 105 Mass. 162, 1870. One accomplishing guilty of an attempt. Royal Circle v. Achterrath, 106 Ill. App. 439, 1903, affirmed in 204 Ill. 549, 63 L.R.A. 452, 98 Am. St. Rep. 224, 68 N. E. 498, 1908. Crime of “felo de se” cannot be ‘committed by a person who loses his memory by sickness, infirmity, or accident; and consequently such a person cannot be guilty of an at- tempt to commit suicide. McMahan v. State, 168 Ala. 70, 53 So. 89, 1910. 1See Infra, § 234. [Eng.] Reg. v. Donovan, 4 Cox, C. C. 399, 1850; Reg. v. Ryan, 2 Moody & R. 213, 1848; Reg. v. Lallement, 6 Cox, C. Crim. L, Vol. I—18. suicide not C. 204, 1854; Reg. v. Cheeseman, Leigh & ©. C. C. 140, 31 L. J. Mag. Cas. N. S. 89, 8 Jur. N. S. 143, 5 L. T. N. S. 717, 10 Week. Rep. 255, 9 Cox, C. C. 100, 1862. [Ala.] State v. Bullock, 18 Ala, 413, 1848; State v. Marshall, 14 Ala. 411, 1848; Prince v. State, 35 Ala. 367, 1860; Gray v. State, 63 Ala. 66, 1879. [Cal.] People v. Murray, 14 Cal. 159, 1859. [Ga.] Griffin v. State, 26 Ga. 498, 1859. [Ill.] Weaver v. People, 132 Ill. 536, 24 N. E. 571, 1890. [Ind.] Hollister v. State, 156 Ind. 255, 59 N. E. 847, 1901. [Mass.] Com. v. Harney, 10 Met. 422, 1845. [Miss.] Jeff v. State, 39 Miss. 593, 1867. [N. C.] State v. Davis, 24 N. C. (2 Ired. L.) 158, 1841. [Tex.] Hart v. State, 38 Tex. 382, 1873; Atkinson v. State, 34 Tex. Crim. Rep. 424, 30 S. W. 1064, 1895. [Wis.] Vosburgh v. State, 82 Wis. 168, 51 N. W. 1092, 1892. See, also, cases cited infra, §§ 221, 229, 234. Mere intention does not consti- tute an attempt. See [Ala.] Gray v. State, 63 Ala. 66, 1879. [Cal.] Ex parte Floyd, 7 Cal. App. 588, 95 Pac. 175, 1908. [Conn.] State v. Wilson, 30 Conn. 500, 1862. [Miss.] Cunningham v. State, 49 Miss. 685, 1874. [N. Y.] People v. Moran, 123 N. Y. 254, 10 L.R.A. 109, 20 Am. St. Rep. 732, 25 N. E. 412, 1890. [N.C.] State v. Jordan, 75 N. C. 27, 1876; State v. Colvin, 90 N. C. 717, 1884. [Pa.] Smith v. Com. 54 Pa. 209, 93 Am. Dec. 686, 1867. [Va.] Hicks v. Com. 86 Va. 223, 19 Am. St. Rep. CRIMINAL LAW. [§ 215 274 seen,” there can be no indictment for an attempt at negligence, for, from the nature of things, the attempt to neglect a duty is in itself, if successful, a malicious offense, and ceases to be a neglect. Hence comes the just principle of the Roman law, that. where there is no dolus there can be no attempt.® ‘There is, however, no arbitrary measure of intent to be inferred from any particular act. Thus an attempted killing may be an attempt to commit murder or an attempt to commit. manslaughter. The attempt to kill in hot blood, but not in self- defense, is an attempt to commit manslaughter; to attempt to: kill coolly on an old grudge is an attempt to commit murder.* An attempt to kill on officer, also, knowing him to be such, may be an attempt to commit murder; an attempt to kill him, not knowing who he is, may be only an attempt to commit man- slaughter.® Intention formed subsequent to the attempt will not be enough, as where a party having in his possession indecent prints (not 891, 9 S. E. 1024, 1889. [W. Va.] State v. Baller, 26 W. Va. 90, 53 Am. Rep. 66, 1885. To constitute attempt, there must be more than mere intention or preparation; there must be some overt act moving directly towards the consummation of the designed offense. State v. Doran, 99 Me. 329, 105 Am. St. Rep. 278, 59 Atl. 440, 1904. —Overt act done need not be last proximate act in consummation of the offense or crime. See [Mich.] McDade v. People, 29 Mich. 50, 1 Am. Crim. Rep. 81, 1872. [N. Y.] People v. Sullivan, 173 N. Y. 122, 68 L.R.A. 353, 93 Am. St. Rep. 582, 65 N. E. 989, 1903. [Va.] Uhl v. Com. 6 Gratt. 706, 1849; Hicks v. Com. 86 Va. 223, 19 Am. St. Rep.. 891, 9 S. E. 1024, 1889. As to what constitutes such acts, see State v. Mitchell, 170 Mo. 633, 94 Am. St. Rep. 768, 71 S. W. 175, 1902; People v. Gardner, 144 N. Y. 119, 28 L.R.A. 699, 43 Am, St. Rep. 741, 38 N. E, 1003, 9 Am. Crim. Rep. 82, 1894; People v. Sullivan, 173 N. Y. 122, 63 L.R.A. 353, 93 Am. St. Rep. 582, 65 N. E. 989, 1903. “Intent” distinguished from “at- tempt.”—“The only distinction be- tween an intent and an attempt to do a thing is that the former implies the purpose only, while the latter implies both the purpose and an actual effort to carry that purpose into execution.” [Ala.] Prince v. State, 35 Ala. 367, 1860. See State v. Bullock, 13 Ala. 413, 1848; State v. Marshall, 14 Ala. 411, 1848; Gray v. State, 63 Ala. 66, 1879. [Cal.} Peope v. Murray, 14 Cal. 159, 1859. [Ga.] Griffin v. State, 26 Ga. 493, 1859. [Ind.] Hollister v. State, 156 Ind. 255, 59 N. E. 847, 1901. [Tex]. Hart v. State, 38 Tex. 383, 1873; Atkinson v. State, 34 Tex. Crim. Rep. 424, 30 S. W. 1064, 1895. 2See supra, § 215, for cases. 8See supra, §§ 162-166. 4Infra, §§ 582 et seq. 5Infra, §§ 540, et seq. See, generally. [Ala.] Meredith v.. State, 60 Ala. 441, 1879. [Conn.] State v. Nichols, 8 Conn. 496, 18380.. [Iowa] State v. White, 45 Iowa, 325, 1877; State v. Conner, 59 Iowa 357,. 44 Am. Rep. 686, 13 N. W. 327, 1882. [Minn.] Bonfanti v. State, 2 Minn. 132, Gil. 99, 1858. [N. Y.] People v. Shaw, 1 Park. Crim. Rep. 327, 1854. : See, also, cases cited infra, § 839. § 217} ATTEMPTS, 275 procured for publication) takes it into his head to publish them, but does not actually publish.® § 216. And so as to attempts at police offenses. It has been further held that an attempt to commit a mere police offense, involving no malice, is not indictable? And this principle covers the attempting to sell liquor in illegal meas- ures. When an attempt is made maliciously to violate the law in this respect, and when the attempt is put into such a shape as, by the natural course of events, to produce a violation of such law, then the attempt is indictable. But when between the at- tempt and the execution is interposed the volition of both buyer and seller, then, by stress of the definition just given, an indict- able attempt is not made out. § 217. The attempt must have causal relation to act. The distinction between conditions and causes has been already largely discussed;* but a recurrence to the principles here- tofore expressed is essential to the elucidation of this branch of 8 Jervis, ©. J., Robert’s Case, Dears. C. C. 539, 33 Eng. L. & Eq. Rep. 553, 25 L, J. Mag. Cas. N. S. 17, 1 Jur. N. S. 1094, 4 Week. Rep. 128, 7 Cox, C. C. 39, 1854. Negligent ‘“attempt.”—While there can be no such thing as a purely negligent attempt, since an attempt cannot exist without design, it is argued that there may be a concur- rence in a single act of a negligent offense and of an attempt. A com- mon illustration offered of this is where A strikes B, conceiving B to be C. Here, it is said, the offense is an attempt as to C, and negli- gence as to B. But to this it is an- swered that at the moment of the injury, A’s intention to hurt was actually directed against B, and that [ if we allow his mistake as to B’s person to change the offense from malicious to negligent, we must al- low the same effect to other mis- takes he might make as to B, in which case there could be scarcely any conviction of a malicious crime. The case is that of the aberratio delicti a persona im personam, or a re in rem, which has been already discussed; and in which it is plain that the party offending is re- sponsible for the malicious injury of the person whom he strikes. Aberratio ictus—It is otherwise, however, so is it argued, with the oberratio ictus, in which through some extrinsic agency, the blow falls upon a person other than the one in- tended. A shoots at B, and C passes in the line of the shot and is wound- ed. Here the will and the act do not coincide. The offense, it is argued, is an attempt as to B, and a negligent wounding as to C. Supra, §§ 157, 165. 1See [Eng.] Rex v. Upton, 2 Strange, 816, 1754; Rex v. Bryan, 2 Strange, 866, 1754 [Ga.] Hill v. State, 53 Ga. 125, 1874. [Ky.] Ross. v. Com. 2 B. Mon. 417, 1841. Mass.] Com. v. Willard, 22 Pick. 476, 1839. [Tenn.] Dobkins v. State, 2 Humph. 424, 1841; Pulse v. State, 5 Humph. 108, 1844; White- sides v. State, 11 Lea, 474, 1883. 2Infra, § 1838. See Pulse v. State, 5 Humph. 108, 1844. In Taylor v. State, 11 Lea, 708, 1883, this is extended to statutory misdemeanors; but unless’ under the peculiar terms of the applicatory statute, this cannot be sustained. 1Supra, §§ 198, et seq. CRIMINAL LAW. [§ 217 276 To enable a gunshot wound to be inflicted, an almost innumerable series of conditions is necessary. It is necessary that the gun should be procured by the assailant. It is necessary that the gun should have been made by the man- ufacturer. It is necessary that the steel of the gun should have been properly tempered ; that the bullet should have been proper- ‘ly cast; that the materials from which bullet, tube, and trigger were made should have been dug from the mine and duly fashioned in the factory. It is necessary that the assailed should be in a position to be shot, and that the assailant should be in a position to take aim. All these are necessary conditions to the shooting, without which the shooting could not take place. No one of them, however, is in the eye of the law the cause. A juridical cause is such an act, by a moral agent, as will apparently result, in the usual course of natural events, unless interrupted by circumstances independent of the actor, in the consequence under investigation.? Hence preparations, as will presently be more fully seen,* unless they are put in such a shape as by the usual course of events to produce the consequence in question, are not attempts.* § 218. Solicitations not indictable. Are solicitations to commit crime independently indictable? They certainly are, as has been seen, when they in themselves involve a breach of the public peace, as is the case with challenges to fight and seditious addresses.’ They are also indictable when their object is inter- jurisprudence. it was held that taking an impres- sion of the lock of a warehouse, and having a key made to fit it, was an indictable attempt, though it was not shown whether the defendant in- 2 Reg. v. Meredith, 8 Car. & P. 589, 1838. See Reg. v. Williams, 1 Den. ©. C. 39, 1 Car. & K. 589, cited infra, § 225; State v. Colvin, 90 N. C. 717, 1883. 8Infra, § 219. 4Preparation and ‘“attempt.”—In Reg. v. Cheeseman, 1 Leigh & C, C. C. 140, 31 L. J. Mag. Cas. N. S. 898, Jur, N. §. 143, 5 L. T. N.S. 717, 10 Week. Rep. 255, 9 Cox, C. C. 100, 1862, Blackburn, J., said: “There is no doubt a difference between the preparation antecedent to an offense and the actual attempt; but if the actual transaction has commenced, which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.” In Griffin v. State, 26 Ga. 493, 1859, tended to use the key himself. But this was a matter of inference for the jury. See infra, §§ 220, 233. 1See infra, § 2121. [Ill] Cox v. People, 82 Til. 191, 2 Am. Crim. Rep. 329, 1876. [IN. Y.] People v. Most, 36 Mise. 139, 73 N. Y. Supp. 220, 16 N. Y. Crim. Rep. 105, 1901, af- firmed in 71 App. Div. 160, 75 N. Y. Supp. 591, 16 N. Y. Crim. Rep. 392, 1902; 171 N. Y. 428, 58 L.R.A. 509, 64 N. E. 175, 1902. [N. C.] State v. Farrier, 8 N. C. (1 Hawks) 487, 1822. [S. C.] State v. Taylor, 3 Brev. 248, 1814. § 218] ATTEMPTS. 277 ference with public justice, as where a resistance to the exe- cution of a judicial writ is counselled ;* or perjury is advised ; * or the escape of a prisoner is encouraged; * or the corruption of a public officer or a witness is sought,® or invited by the officer himself. They are indictable, also, when they are in themselves offenses against public decency, as is the case with solicitations to commit sodomy,’ and they are indictable, also, when they constitute accessoryship before the fact.* But is a solicitation indictable when it is not either (1) a substantive indictable offense, as in the instances just named, or (2) a stage toward an independent consummated offense? And the better opinion is that, where the solicitation is not in itself a sub- stantive offense, or where there has been no progress made toward the consummation of the independent offense at- tempted ; ° the question whether the solicitation is by itself the subject of penal prosecution must be answered in the negative.” ws State v. Caldwell, 2 Tyler (Vt.) 2. 8 See infra, §§ 1592, 1593, et seq. 4State v. Taylor, 44 La. Ann. 967, 11 So. 576, 1892. 5Infra, § 1909. 6 Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569, 1872. Compare: Hutchinson 36 Tex. 293, 1872. 7 Reg. v. Rainsford, 18 Cox, C. C. 9, 31 L. T. N. S. 488, 1874; Reg. v. Rowed, 6 Jur. 396, 2 Gale & D. 518, 3 Q. B. 180, 11 L. J. Mag. Cas. N. 8. 74; Rex v. Hickman, 1 Moody, C. C. 34. 8Infra, § 263. ®8See Higgins’s Case, 2 East, 5, 6 Revised Rep. 358, 1802; R. v. Scho- field, Cald. 397, 1794; Reg. v. Greg- ory, L. R. 1 C. C. 77, 10 Cox, C. C. 459, 36 L. J. Mag. Cas. N. S. 60, 16 L. T. N. S. 388, 15 Week. Rep. 774, 1867; Reg. v. Quail, 4 Fost. & F. 1076, 1864. Infra, § 263. Soliciting engraving of plate— Forgery.—Under this head falls the anonymous case reported in 6 Car. & P. 368, 1834, where soliciting an engraver to engrave a plate for forgery was held indictable, the work being actually begun. 10 See [Ala.] Rivers v. State, 97 Ala. 72, 12 So. 434, 1894. [TIL] v. State, Cox v. People, 82 Ill. 191, 2 Am. Crim. Rep. 329, 1876. [Mass.] Com. v. Willard, 22 Pick. 476, 1839. [Pa.] Smith v. Com. 54 Pa. 209, 93 Am. Dec. 686, 1867. Solicitation to commit adultery is not an attempt, and is not an in- dictable offense. See [Eng.] Rex v. Roderick, 7 Car. & P. 795, 1837. [Pa.] Smith v. Com. 54 Pa. 209, 93 Am. Dec. 686, 1867. [Wash.] State v. Butler, 8 Wash. 194, 25 L.R.A. 434, 40 Am. St. Rep. 900, 35 Pac. 1093, 9 Am. Crim. Rep. 661, 1894. Compare: State v. Avery, 7 Conn. 266, 18 Am. Dec. 105, 1828, in which it is held that a solicitation to com- mit adultery is a high crime. This ease seems to stand alone in this country in holding this doctrine. —tThe same rule applies whether offense of adultery is a felony or a misdemeanor under the statute. State v. Butler, 8 Wash. 194, 25 L.R.A. 484, 40 Am. St. Rep. 900, 35 Pac. 1093, 9 Am. Crim. Rep. 661, 1894. _ Solicitation to commit abortion by inducing a woman to take a drug to produce miscarriage is not an in- dictable offense. Lamb v. State, 66 Md. 285, 7 Atl. 399, 1887. Compare: Lamb v. State, 67 Md. 524, 10 Atl. 208, 298, 1887. CRIMINAL LAW. [§ 218 278 For we would be forced to admit, if we hold that solicitations to criminality are generally indictable, that the propagandists, even in conversation, of agrarian or communistic theories are liable to criminal prosecutions; and hence the necessary freedom of speech and of the press would be greatly infringed. It would be hard, also, we must agree, if we maintain such general re- sponsibility, to defend, in prosecutions for soliciting crime, the publishers of Byron’s “Don Juan,” of Rousseau’s “Emile,” or of Goethe’s “Elective Affinities.” Lord Chesterfield, in his letters to his son, directly advises the latter to form illicit connec- tions with married women; Lord Chesterfield, on the reasoning here contested, would be indictable for solicitation to adultery. Undoubtedly, when such solicitations are so publicly and in- decently made as to produce public scandal, they are indicta- Solicitation to commit arson is an indictable offense. [Mass.] Com. v. Flagg, 185 Mass. 545, 1883. [Mo.] State v. Hayes, 78 Mo. 307, 1883. {N. Y.] People v. Bush, 4 Hill, 133, 1843. [Pa.] Com. v. Hutchinson 6 Pa. Super. Ct. 405, 1898. [S. C.J] State v. Bowers, 35 S, C. 262, 15 L.R.A. 199, 28 Am. St. Rep. 847, 14 S. E. 488, 1892. Soliciting another to commit an assault and battery is a misdemeanor at common law. United States v. Lyles, 4 Cranch, C. C. 469, Fed. Cas. No. 15,646, 1834. Solicitation to commit a felony is a distinct crime from the felony it- self, and is an indictable offense at common law. [Mass.] Com. v. Flagg, 185 Mass, 545, 1883. [Ohio] State v. Davis, Tappan (Ohio) 139, 1817. [Pa.] Com. v. M6Gill, Addi- son (Pa.) 21, 1792. [S. C.] State v. Bowers, 35 8. C. 262, 15 L.R.A. 199, 28 Am. St. Rep. 847, 14 S. E. 488, 1892. —Accompanied with offer of money, and a furnishing of the means necessary, to the person so- licited, it constitutes an attempt to commit a felony. State v. Bowers, 35 S. C. 262, 15 L.R.A. 199, 28 Am. St. Rep. 847, 14 S. E. 488, 1892. Although the person approached declines the persuasion. Ibid. Solicitation to commit a felony is distinct from an attempt to com- mit the felony. State v. Bowers, 35 S. C. 262, 15 L.R.A. 199, 28 Am. St. Rep. 847, 14 S. E. 488, 1892. Solicitation to commit incest is not an attempt to commit that crime, and not indictable as an attempt. Cox v. People, 82 Ill. 191, 2 Am. Crim. Rep. 329, 1876. Soliciting commission of larceny by another. Rex v. Higgins, 2 East, 5, 6 Revised Rep. 358; Reg. v. Quail, 4 Fost. & F. 1076; Reg. v. Daniel, 6 Mod. 99; Reg. v. Collingwood, 6 Mod. 288; Com. v. M’Gill, 1 Addison (Pa.) 21, 1792. Solicitation to commit a misde- meanor is itself «2 misdemeanor, and indictable at common law. State v. Sullivan, 110 Mo. App. 75, 84 S. W. 105, 1904. Contra: Mere solicitation to com- mit a misdemeanor, which is not in fact committed, is not in and of it- self a misdemeanor. Lamb v. State, 67 Md. 524, 10 Atl. 208, 298, 1887. Solicitation to murder, accom- panied by the offer of a gift of money, is indictable at common law. Com. v. Randolph, 146 Pa. 83, 28 Am. St. Rep. 782, 23 Atl. 388, 1891, distinguishing Smith v. Com. 54 Pa. 209, 938 Am. Dec. 686, 1867. See Reg. v. Banks, 12 Cox, C, C. 393; Reg. v. Murphy, Jebb, C. C. 315. Soliciting another to commit rob- bery is indictable as an attempt. Griffin v. State 26 Ga. 493, 1858. § 218] ATTEMPTS. 279 ble as nuisances or as libels. But to make bare solicitations or allurements indictable as attempts, not only unduly and perilously extends the scope of penal adjudication, but forces on the courts psychological questions which they are incompetent to decide, and a branch of business which would make them despots of every intellect in the land. What human judge can determine that there is such a necessary connection between one man’s advice and another man’s actions, as to make the former the cause of the latter? An attempt, as has been stated, is such an intentional preliminary guilty act as will apparently result, in the usual course of natural events, if not hindered by extraneous causes, in the commission of a deliberate crime. But this cannot be affirmed of advice given to another, which advice such other person is at full liberty to accept or reject. Follow- ing such reasoning, several eminent European jurists have declined to regard solicitations as indictable, when there is interposed between the bare solicitation, on the one hand, and the proposed illegal act on the other, the resisting will of an- other person, which other person refuses assent and co-op- eration." To this effect are decisions that indictments do not lie in our own law for solicitations to commit adultery,” and solicitations to commit incest.* It has also been held that a mere effort, by persuasion, to produce a condition of mind con- senting to incest, without any act done toward actual consumma- tion, is not an attempt.* To the same purport is the reasoning cf other tribunals in reference to soliciting to sell liquor. On the other hand, we have from the supreme court of Connecticut a direct decision to the contrary, on the question of soliciting 11 Mittermaier, in note iii. to Feu- erbach, 42; Berner, Strafrecht, 1871, § 102; Schwarze, Commentar. §§ 43- 46. See also the elaborate argument by Bar, Zur Lehre vom Versuch. And see infra, § 2085. 122 Smith v. Com. 54 Pa. 209, 93 Am. Dec. 686, 1867; State v. Butler, 8 Wash. 194, 25 L.R.A. 434, 40 Am. St. Rep. 900, 35 Pac. 1093, 9 Am. Crim. Rep. 661, 1894. See also Kelly v. Com. 1 Grant, Cas. 484, 1858; infra, § 2085. In Stabler v. Com. 95 Pa. 318, 40 Am. Rep. 653, 1880, it was held that A’s handing poison to B, and solicit- ing him to put it in C’s spring, is not an “attempt to administer poison” under the statute. 13 Cox v. People, 82 Ill. 191, 2 Am. Crim. Rep. 329, 1876. 14Cox v. People, 82 Ill. 191, 2 Am. Crim. Rep. 329, 1876. 15Com. v. Willard, 22 Pick. 476, 1839. Infra, § 1838. Solicitation to commit arson.— In Com. v. Flagg, 135 Mass. 545, 1883, it was held that solicitation to arson is indictable; but in this case money was paid to the solicited agent in order to fix and prepare him for the work, and the mode of execu- 280 CRIMINAL LAW. [§ 218 adultery, which in that state is a statutory felony.4® We must, however, remember that such solicitations, when in any way attacking the body politic, either by way of treason, scandal, or nuisance, are, as has already been seen, under any view of the case, indictable as independent offenses. And we must also keep in mind that if the solicitation involves the employment of illegal means to effect the illegal end, it may become sub stantively indictable.” § 219. Mere preparations not indictable. In answering the interesting question whether the mere preparations for a crime are indictable, we must first put aside those preparations which by statute or otherwise are substantive crimes (delicta sut generis); among which we may mention the carrying of concealed weapons, the unlawful concoction or secreting of tion explained. The case was, there- fore, one not of bare solicitation, but of preparation. 16 State v. Avery, 7 Conn. 266, 18 Am. Dec. 105, 1829. See United States v. Lyles, 4 Cranch, C. C. 469, Fed. Cas, No. 15,646, 1836, where it was held by one judge that a solici- tation to commit a battery is in- dictable. As maintaining indictability of so- licitation, see opinion of court in State v. Hayes, 78 Mo. 307, 1883, re- lying on Com. v. Jacobs, 9 Allen, 274, 1864, where, however, the question was adequacy of preparations. 17 [Eng.] Rex v. Hickman 1 Moody, C. C. 34, 1835; Reg. v. Clay- ton, 1 Car. & K. 128, 1843. [Kan.] Re Lloyd, 51 Kan. 501, 33 Pac. 307, 1893. [Pa.] Com. v. M’Gill, Addison (Pa.) 21, 1792. [Tenn,] Collins v. State, 3 Heisk. 14, 1870. Soliciting servant to steal mas- ter’s goods.—It has, however, been ruled that to solicit a servant to steal his master’s goods is a misde- meanor, though it be not charged in the indictment that the servant stole the goods, nor that any other act was done except the soliciting and inciting. But here the word “in- citing” implied accessoryship before the fact. Higgin’s Case, 2 East, 5, 6 Revised Rep. 358. Soliciting boy to commit sodomy— Reg. v. Ransford, 31 L. T. N. S. 488, 13 Cox, C. C. 9, 1874, was a case of solicitation of a man to a boy to commit sodomy, and Kelly, C. B., af- firming a conviction, said: “I am of opinion that to incite or even solicit another to commit a felony, or to do any act with intent to induce an- other person to commit such offense, is a misdemeanor.” Brett, J., said: “The inciting a person to commit a felony is a misdemeanor. The case in 2d East’s Rep. is an authority for that point.” But in this case the person solicited was a boy of twelve, and there was the overt act of the publication of a scandalous letter, which publication is in itself an in- dictable offense. “Encouraging” in newspaper mur- der of foreign sovereign—Reg. v. Most, L. R. 7 Q. B. Div. 244, 1881, 44 L. T. N.S. 8238, 14 Cox, ©. C. 583, 50 L. J. Mag. Cas. N. S, 118, 116, 29 Week. Rep. 760, 45 J. P. 696, af- firming a conviction in a case where the defendant was charged with “en- couraging” and “persuading” in a newspaper the murder of a foreign sovereign, was under the stat. 24 & 25 Vict. chap. 100. Such publications may be indictable at common law when seditious or disturbing do- mestic or international peace. But they are not indictable as common- law attempts. § 219] ATTEMPTS. 281 poison or powder, and the collection of materials for forging.’ These acts, when prosecuted, should be charged as consummated offenses. Their punishability is independent of the existence of any subsequent conditions. For instance, the carrying of concealed weapons, under the statutes, is equally indictable, whether or not the weapons were used for unlawful purposes. So, also, as to the possession of implements of forgery, and preparations for treasonable acts. If the preparation is not of itself indictable, or will not of it- self, if uninterrupted extraneously, result in crime, the weight of reasoning is that it cannot be made per se indictable as an attempt.” For, first, there is no evidence, as a general rule, that can prove that a particular preparation was designed for a 1Com. v. Newell, 7 Mass. 1810, Procuring and retaining dies for counterfeiting.—Peculiarly is this the case with the procuring and re- taining dies and other machinery for counterfeiting. It is on this ground we may sustain both the conclusion and the reasoning in Reg. Robers, 33 Eng. L. & Eq. Rep. 553, Dears. C. C. 539, 25 L. J. Mag. Cas. N. 8. 17, 1 Jur. N. S, 1094, 4 Week. Rep. 128, 7 Cox, C. C. 39, 1854; in which it was held that the procuring of dies wherewith to forge coin is an in- dictable offense. It undoubtedly is; but is is so because it is an inde- pendent misdemeanor, and not an at- tempt. 2[Eng.] Reg. v. Eagleton, Dears. C. C. 515, 24 L. J. Mag. Cas. N. S. 158, 8 C. L. R. 1145, 1 Jur. N. 8.940, 4 Week. Rep. 17, 6 Cox, C. C. 559, 1855; Reg. v. Meredith, 8 Car. & P. 589, 1838; Rex v. Heath, 1 Russ. & R. C. C. 184, 1812; Reg. v. Wood- row, 15 Mees. & W. 404, 2 New Sess. Cas. 346, 16 L. J. Mag. Cas. N. 8. 122; Reg. v. Renshaw, 2 Cox, C. C. 285, 11 Jur. 615, 1848. [Fed.] United States v. Stephens, 8 Sawy. 116, 12 Fed. 52, 1883. [Cal.] Peo- ple v. Hope, 62 Cal. 291, 1881. [Ill] Cox v. People, 82 Ill. 191, 2 Am. Crim. Rep. 329, 1875. [Me.] State v. Bruce, 24 Me. 71, 1844. [Mass.] Com. v. Morse, 2 Mass. 138, 1807. [Miss.] Cunningham v. State, 49 245, Miss. 685, 1874. [N. Y.] People v. Brockway, 2 Hill, 558, 19 Am. Dec. 502, 1842; People v. Lawton, 56 Barb. 126, 1867. [N. C.] State v. Colvin, 90 N. C. 717, 1883. [Pa.] Randolph v. Com. 6 Serg. & R. 398, 1821. [Va.] Com. v. Clarke, 6 Gratt. 675, 1849; Uhl v. Com. 6 Gratt. 706, 1849. Mere preparation not leading proximately to the consummation of the crime or offense intended does not constitute an attempt. Brown v. State, 95 Ga. 481, 20 S. E. 495, 1894; Jackson v. State, 103 Ga. 417, 30 S. E. 251, 1897; Gaskin v. State, 105 Ga. 631, 31 S. E. 740, 1898; Penny v. State, 114 Ga. 77, 39 S. E. 871, 13 Am. Crim. Rep. 77, 1901; Graves v. State, 116 Ga. 516, 59 L.R.A. 598, 42 S. E. 755, 14 Am. Crim. Rep. 42, 1902; Moss v. State, 6 Ga. App. 524, 65 S. E. 300, 1909; State v. Doran, 99 Me. 329, 105 Am. St. Rep. 278, 59 Atl. 440, 1904. Preparatioz for attempt to com- mit crime consists in devising means or measures necessary for accom- plishment of desired object or end. State v. Long, 21 Nev. 209, 37 Am. St. Rep. 505, 28 Pac. 235, 1891. In United States v. Stephens, 8 Sawy. 116, 12 Fed. 52, it was held that purchasing liquor in a place where the sale is legal, for the pur- pose of introducing it into another place where the sale is illegal, is not an indictable attempt in the lat- ter place. CRIMINAL LAW. {§ 219 282 particular end. Thus a gun may be bought as well for hunting as for homicide. Nor can we lay down any intelligible line between preparations which betray more clearly and those which betray less clearly a felonious purpose.’ Secondly, between preparation and execution there is a gap which criminal juris- prudence cannot fill up so as to make one continuous offense. There may be a change of purpose, or the preparation may be a vague precautionary measure, to which the law cannot append a positive criminal intent, ready to ripen into guilty act. Some preparations for crime are of themselves of such a character from their inherent illegal perniciousness, as to afford the subject-matter for independent indictment,* such, for instance, as the procuring of dies for the purpose of coining bad money,’ and procuring indecent prints with intent to publish them. And eminently is this the case when, as has been said, the preparations in question, by themselves, by force of ordinary natural laws, will, if undisturbed, result in crime.’ When such an attempt, if not interrupted by extraordinary 3 See Rossi, Traité de droit pénal, 1855, t. ii. 121. 4Supra, § 218. 5 Roberts’s Case, Dears. C. C. 539, 33 Eng. L. & Eq. Rep. 553, 25 L. J. Mag. Cas. N.S. 17, 1 Jur. N. S. 1094, 4 Week. Rep. 128, 7 Cox, C. C. 39, 1854. 6 Dugdale v. Reg. 1 El. & BI. 435, Dears. C. C. 64, 22 L. J. Mag. Cas. N. S. 50, 17 Jur. 546, 1853; Reg. v. Roberts, Dears. C. C. 539, 33 Eng. L. & Eq. Rep. 558, 25 L. J. Mag. Cas. N. S. 17, 1 Jur. N. S. 1094, 4 Week. Rep. 128, 7 Cox, C. C. 39, 1854. 7To this must be limited Lord Denman’s expressions in Reg. v. Chapman, 1 Den. C. C. 432, 2 Car. & K. 846, Temple & M. 90, 18 L. J. Mag. Cas. N. S. 152, 13 Jur. 885, 3 Cox, C. C. 467, 1846. Merely delivering poison to a per- son, and asking him to put it into the spring of another, does not con- stitute “an attempt to administer poison.” Stabler v. Com. 95 Pa. 318, 40 Am. Rep. 653, 1880. See note in 40 Am. Rep. 656. One act or step towards accom- plishment of unlawful purpose, with intent to do it, and with a physical capacity, constitutes an attempt. [Ind.] Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22, 1871. [Mich.] Peo- ple v. Youngs, 122 Mich. 292, 47 LRA. 108, 81 N. W. 114, 1899. [Mo.] State v. Mitchell, 170 Mo. 633, 94 Am. St. Rep. 763, 71 8. W. 175, 1902. See notes in 10 Am. Rep. 28, 94 Am. St. Rep. 769. Hiring another to commit murder, procuring gun for him, etc., consti- tute an attempt to murder. Stokes v. State, 92 Miss, 415, 21 LRA. (N. S.) 898, 46 So. 627, 1908. Act must be of such character as to advance enterprise beyond sphere of mere intent, and reach far enough to amount to a commencement of consummation of act intended. State v. Hurley, 79 Vt. 28, 6 L.R.A.(N.8.) 804, 118 Am. St. Rep. 934, 64 Atl. 78, 1906. Act done need not constitute last proximate one for completion of of- fense, in order to constitute an at- tempt. [N. Y.] People v. Sullivan, 173 N. Y. 122, 63 L.R.A. 358, 98 Am. St. Rep. 582, 65 N. E. 989, 1903. See [Mich.] McDade v. People, 29 § 220] ATTEMPTS. 283 natural occurrences, or by collateral human intervention, is like- ly to result in crime, then the defendant is indictable. § 220. The attempt must have gone so far that the crime would have been completed but for extraneous intervention. Certainly mere preliminary preparations, in character indifferent cannot, as has been seen, be regarded as guilty attempts.’ Thus, walking down a street to a druggist’s where poison is sold would not be indictable as an attempt to poison; but purchasing the poison and putting it in the way of other human beings would be so indictable.” So purchasing a gun is not indictable as an attempt,’ but an aiming of the gun Mich. 50, 1 Am. Crim. Rep. 81, 1874. {Va.] Uhl v. Com. 6 Gratt. 706, 1849; Hicks v. Com. 86 Va. 223, 19 Am. St. Rep. 891, 9 S. E. 1024, 1889. Procuring tools adapted to jail breaking does not constitute at- tempt to break jail. State v. Hur- ley, 79 Vt. 28, 6 L.R.A.(N.S.) 804, 118 Am. St. Rep. 934, 64 Atl. 78, 1906. See note in 6 L.R.A.(N.S.) 804. Where result aimed at is not ac- complished simply because of ob- struction in way of thing to be ef- fected, which obstruction was un- known to accused at time, criminal attempt is nevertheless committed. People v. Lee Kong, 95 Cal. 666, 17 L.R.A. 626, 29 Am. St. Rep. 165, 30 Pac. 800, 1892; People v. Gardner, 144 N. Y. 119, 28 L.R.A. 699, 43 Am. St. Rep. 741, 38 N. E. 1003, 9 Am. Crim. Rep. 82, 1894. 1 Acts done must not be merely preparatory, but must reach toward accomplishment sufficiently to be a commencement of the commission. Ex parte Turner, 3 Okla. Crim. Rep. 168, 104 Pac. 1071, 1909. 2Mullen v. State, 45 Ala. 48, 6 Am. Rep. 691, 1871. See Reg. v. Dale, 6 Cox, C. C. 14, 1852; Reg. v. Meredith, 8 Car. & P. 589, 1838; Reg. v. Simmons, 1 Wils. 329; Reg. v. Roberts, 33 Eng. L. & Eq. Rep. 553, 1854, Dears. C. C. 539, 25 L. J. Mag. Cas. N. S. 17, 1 Jur. N. S. 1094, 4 Week. Rep. 128, 7 Cox, C. C. 39; People v. Thomas, 63 Cal. 482, 1883. Intent to murder.—‘If a man in- tends to commit murder,” says Jer- vis, C. J., in the last cited case, “the walking to the place where he intends to commit it would not be a sufficient act to make it an indictable offense.” Intent to carnally abuse child.— So also said Lord Abinger, in Reg. v. Meredith, 8 Car. & P. 589, 1838: “Suppose a man intended to carnally abuse a child, and was to take his horse and ride to the place where the child was, that would be a step to- ward the commission of the offense, but would not be indictable.” See an interesting extension of this prin- ciple in Reg. v. McCann, 28 U. C. Q. B. 516, cited infra, § 226; Reg. v. Taylor, 1 Fost. & F. 511, 1859. See State v. Lung, 21 Nev. 209, 37 Am. St. Rep. 505, 28 Pac. 235, 1891. Under a statute prohibiting enter- ing a building, the climbing up a roof and then making a hole is an attempt. Reg. v. Bain, Leigh & C. C. C. 129, 9 Cox, C. C. 98, 31 L. J. Mag. Cas. N. 8S. 88, 8 Jur. N. S. 418, 5 L. T. N. S. 647, 10 Week. Rep. 236, 1862. 3It would be otherwise if the gun was put in process of use for pur- poses prohibited by law. Roberts’s Case, Dears. C. C. 539, 33 Eng. L. & Eq. Rep. 553, 25 L. J. Mag. Cas. N. 8. 17, 1 Jur, N. 8. 1094, 4 Week. Rep. 128, 7 Cox, C. C. 39, 1854. “Attempt” to contract incestuous marriage—Criticism of People v. Murray.—See argument of Chief Jus- tice Field, in People v. Murray, 14 Cal. 159, 160, 1859; a case, however, in which sending for a magistrate to contract an incestuous marriage, fol- CRIMINAL LAW. [§ 220 284 is.* So owning a false weight is not itself indictable, but using it as a means of cheating is evidence, when connected directly with the proposed wrong, of an attempt to cheat.’ So to pur- chase iron to use in making false keys is not an attempt at a particular larceny; but it is otherwise when an impression is taken of a particular warehouse key, and a key, counterfeiting it,. is made, with the intent to steal from such warehouse.’ In other words, to make the act an indictable attempt, it must be a cause as distinguished from a condition.” And it must go so far that it would result in the crime unless frustrated by extraneous circumstances.® lowed by elopement, was held, by an undue extension of the above doc- trine, not to constitute an attempt to contract such marriage. 4See Reg. v. Brown, 48 L. T. N.S. 270, 1882. 5 Reg. v. Cheeseman, Leigh. & C. C, C. 140, 31 L. J. Mag. Cas. N. S. 89, 8 Jur. N. S. 148, 5 L. T. N.S. 717, 10 Week. Rep. 255, 9 Cox, C. C. 100, 1862, stated supra, § 217. 6 Griffin v. State, 26 Ga. 493, 1859. See Reg. v. Roberts, 7 Cox, C. C. 39, Dears. C. C. 539, 33 Eng. L. & Eq. Rep. 553, 25 L. J. Mag. Cas. N. S. 17, 1 Jur. N. S. 1094, 4 Week. Rep. 128, 1855. 7Supra, § 217. 8Sipple v. State, 46 N. J. L. (17 Vr.) 197, 1883. Act with view of committing fel- ony—Buying matches to bum house.—In Reg. v. Taylor, 1 Fost. & F, 511, 1859, cited infra, § 226, Pol- lock, C. B., said: “It is clear that every act committed by a person with the view of committing the felonies therein mentioned is not within the statute; as, for instance, buying a box of lucifer matches with intent to set fire to a house. The act must be one immediately and directly tending to the execution of the prin- cipal crime, and committed by the prisoner under such circumstances as that he has the power of carrying his intention into execution. If two persons were to agree to commit a felony, and one of them were, in exe- cution of his share in the transaction, to purchase an instrument for the purpose, that would be a sufficient overt act in an indictment for con- spiracy, but not in an indictment of this nature.” On the other hand, in Reg. v. St. George, 9 Car. & P. 483, 1840, the prisoner was indicted under 7 Will. IV. and 1 Vict. chap. 85, § 4, for an attempt to shoot; and the proof was that he had put his finger on the trigger of a loaded fire- arm with the intention of shooting, but was prevented from doing so. This was held by Parke, B., not to be an attempt to shoot within the statute. But however this may be under the peculiar statute, the rul- ing cannot be sustained at common law. See People v. Stites, 75 Cal. 570, 17 Pac. 693, 1888. Applying a match which goes out before fire is communicated may be an attempt at arson. See Reg. v. Goodman, 22 U. C. C. P. 338. That the least charring is burning, see infra, § 1053. Carrying concealed weapons.—That it is no defense to an indictment for carrying concealed weapons that the weapon carried could not be used, see Williams v. State, 61 Ga. 417, 34 Am. Rep. 102, 1878; Hutchinson v. State, 62 Ala. 3, 34 Am. Rep. 1, 1878. Preparations which, unless made substantive crimes by statute, are not indictable as attempts, have been classified by a high authority as fol- lows: 1. Acts whose object is to ward off contingent discovery, or to secure to the perpetrator the undisturbed enjoyment of the fruits of the crime. § 221) ATTEMPTS. 285 § 221. Means must be apparently suitable. If the means are apparently adapted to the end, then the public peace, so far as the attempt is concerned, is as much disturbed as if they should be so actually; and hence te indictment for the attempt on such evidence can be sustained.’ Were it other- wise, we would be forced to penetrate to regions beyond the range of practical jurisprudence. For how can we say that any particular means will certainly effect any particular end? The best laid plans, we all know, are frustrated. The best of rifles loaded, capped, primed, and well aimed, may miss fire; or the party shot at may wear a coat of impervious mail, or, as was once suggested by Chief Justice Gibson, when discussing a parallel point, may fall down and die of apoplexy from fright before the ball pierces his heart. How can we under any cir- cumstances do more than say of any particular agency, that it is “apparently” adapted to produce the end? If so, the appli- cation of an agency apparently adapted to produce a crime is an indictable attempt, which, as we have seen, is a deliberate crime begun, but, through circumstances independent of the will of the actor, left unfinished: If the means employed appear both to assailant and assailed adequate, then the offense is complete. Indeed, the very fact, that a man when assaulted is entitled to ward off by blows an attempt at violence, which is apparent only, but not real, is decisive of the issue. A levels an unloaded gun at B; and B is justified in using violence to prevent an injury to himself, which after all is unreal though apparent.? But why? Simply because the leveling of an unloaded gun at another person in such a way as to produce terror in the latter is a breach of the 2. Acts undertaken by the perpe- trator as experiments to determine in Holtzendorff’s Strafrecht, i. 270, where we have an elaborate exami- the possibility of the crime, or to arrange an opportunity for its com- mission. 3. Acts consisting in securing the agencies necessary for the execution of the crime. 4, Acts conducing to the perpe- trators’ physical and mental training for the offense. Zachariae in Meyer, § 39. " 1See Schwarze’s essay on “Ver- ‘such und Vollendung,” incorporated nation of the objective and of the subjective theories -of attempt. There is a condensed translation of this essay, published by me in the Central Law Journal for July 18, 1879. 2See fully, infra, §§ 800, 841; and see Com. v. White, 110 Mass, 407, 1872; United States ex rel. Mc- Sweeney v. Fullhart, 47 Fed. 802, 1892. : 286 CRIMINAL LAW. [§ 221 public peace, as well as an invasion of the rights of the individu- al. The law, therefore, declares the attempt which is the sub- ject of legal intervention to include that which is made with means apparently adequate, whether or no these means are actually such as to be necessarily successful if employed.* On the other hand, the offense is not an attempt if the party threat- ened knew the gun was unloaded and incapable of doing harm.* The same distinction is applicable on principle to indictments for attempts to poison,® and attempts to administer drugs with 8 As sustaining argument of text, see [Eng.] Reg. v. St. George, 9 Car. & P. 483, 1840; Reg. v. Lallement, 6 Cox, C. C. 204, 1854; Reg. v. Clude- ray, 1 Den. C. C. 515, 2 Car. & K. 907, Temple & M. 219, 19 L. J. Mag. Cas. N. S. 119, 14 Jur. 71, 4 Cox, C. C. 84, 1850. [Fed.] United States v. Bott, 11 Blatchf. 346, Fed. Cas. No. 14,626, 1871. [Ala.] Tarver v. State, 43 Ala. 354, 1870; Mullen v. State, 45 Ala, 43, 6 Am. Rep. 691, 1871. [Cal.] People v. Yslas, 27 Cal. 630, 1865. [Ga.] Allen v. State, 28 Ga. 395, 73 Am. Dec. 760, 1859. [Ind.] Kunkle v. State, 32 Ind. 220, 1870 (overruling State v. Swails, 8 Ind. 524, 65 Am. Dec. 772, 1856.) [Iowa.] State v. Shepard, 10 Iowa, 126, 1860. [Ky.] Tyra v. Com. 2 Met. (Ky.) 1, 1859. [Mass.] Com. v. McDonald, 5 Cush. 365, 1850; Com. v. Jacobs, 9 Allen, 274, 1864. [N. Y.] Slatterly v. People, 58 N. Y. 354, 1874; People v. Lawton, 56 Barb. 126, 1868; O’Leary v. People, 4 Park. Crim. Rep. 187, 1857. [N. C.] State v. Hamp- ton, 63 N. ©. 18, 1868; State v. Rawles, 65 N. C. 334, 1869; State v. Hinson, 82 N. C. 597, 1880. [Ohio] Henry v. State, 18 Ohio, 32, 1849. See also infra, § 800. A parallel rule laid down in cases of forgery. See infra, §§ 905 et seq. In apparent conflict with the text is a group of English cases on stat- utes. In one of these it was held that “shooting at another person” does not take place when the “other person” is not in the place shot at (Rex v. Lovel, 2 Moody & R. 39); and that there can be no shooting with “loaded arms” when a gun is so stuffed that it cannot be fired (Rex vy. Harris, 5 Car, & P. 159, 1831. See Reg. v. Lewis, 9 Car. & P. 523, 1843); or when it does not contain an efficient charge (Rex v. Whitley, 1 Lewin, C. C. 123, 1835; Reg. v. James, 1 Car. & K. 580, 1 Cox, C. C. 78, 1844; Reg. v. Gamble, 10 Cox, C, C. 545, 1867). These decisions may be right; but they do not touch in- dictments for attempts to kill, as the ground on which they rest is that the statute uses terms (¢. g., “loaded arms”) which are incorpo- rated in the indictment, and the averment of which must be substan- tially proved. Infra, § 845. See, as open to more general exception, Reg. v. Sheppard, 11 Cox, C. C. 302, 19 L. T. N.S. 19, 1870; Vaughan v. State, 3 Smedes & M. 553, 1844. 4Crumbley v. State, 61 Ga, 582, 1878; infra, §§ 800, 841. 5See Reg. v. Cluderay, 1 Den. C. C. 515, 2 Car. & K. 907, Temple & M. 219, 19 L. J. Mag. Cas. N. S. 119, 14 Jur, 71, 4 Cox, C. C. 84, 1850; State v. Clarissa, 11 Ala. 57, 1847. “Noxious drug.”—In Reg. v. Hen- nah, 13 Cox, C. C. 547, “noxious drug” was held to mean a drug noxious in its essence, and not mere- ly noxious when taken in excess. “Noxious substance.”—In People v. Van Deleer, 53 Cal. 147, 1878, it was held that a “noxious substance or liquid” is not such as might, when administered, be hurtful or injurious, but like a poison, it must be capable of destroying life. As to “noxious,” see infra, § 789; 5 Words & Phrases, 4854, § 222] ATTEMPTS. 287 intent to produce an abortion.* And in forgery, as will be here- after seen, analogus principles are laid down.” § 222. If means are apparently and absolutely unfit, there is no attempt. But if the means are both absolutely and apparently inadequate, as where a man threatens another with magic, or aims at him a child’s popgun, then it is. plain that an attempt, in the sense of an apparent invasion of another’s rights, does not exist.1 For to constitute such an attempt there must be such a preliminary overt act as may, by the course of usual natural laws, apparently result, if not in- terrupted, in crime. It is the appearance of such connection between the attempt and the consummation that palliates vio- lence on the party assailed in arresting the assailant before he goes further; and it is this appearance which the law, wher there is guilty intent, makes indictable, in order to prevent. breaches of the peace. But when the means used are so prepos-- terous that there is not even apparent danger, then an indictable. attempt is not made out. This distinction is apprehended by several thoughtful German commentators,” who held that abso- lute inadequacy of means is a defense, while relative inade- quacy is only a plea in mitigation of sentence.® 6 Bates v. United States, 11 Biss. 70, 10 Fed. 92, 1882; United States v. Bott, 11 Blatchf. 346, Fed. Cas. No. 14,626, 1871. See infra, §§ 789, 2179-2182, Abortion — “Other thing” — “Dele- terious medicine.”—In Rex v. Coe, 6 [ Car. & P. 408, 1834, the question came up under a statute making it indictable to administer medicine or “other thing” with intent to produce an abortion, and it was held to be immaterial what the thing was. Had the statute used the term “deleteri- ous medicine,” the nature of the medicine might become material. Reg. v. Hennah, 13 Cox, C. C. 547, 1877. See infra, § 789. Under Penal Code of Texas, where it is stated that an attempt to com- mit abortion was made by the use of means calculated to produce the same, the indictment need not state the means used. Cave v. State, 33 Tex. Crim. Rep. 335, 26 S. W. 503, 1894. As to statutes of New Jersey and other state, see infra, § 789. TInfra, §§ 885, 901. 1[Eng.] Blake v. Barnard, 9 Car. & P. 626, 1840; Reg. v. James, 1 Car. & K. 530, 1 Cox, C. C. 78, 1844.. Ala.] Tarver v. State, 48 Ala. 354,. 1870. [Tex.] Robinson v. State, 31 Tex. 170, 1868; Smith v. State, 32. Tex. 598, 1869. 2See summary in Geib, ut supra, § 184; State v. Napper, 6 Nev. 113, 1870. As to what constitutes a “nox- ious” drug, see further infra, § 789. 8French view.—See the following from an eminent French jurist: Rossi, Traité, ii. pp. 310-313: D’ail- leurs o0 est le danger pour la so- eiété of est le mal matériel? Que lui importe qu’on essaie des actes im- possibles? Ces actes prouvent, dira- t-on, une perversité qui est a crain- dre. On veut done franchir les bornes de la justice pénale, pour- suivre et punir la perversité en gén- 288 CRIMINAL LAW. [§ 223 § 223. Must be apparent physical capacity. Whether there must be physical ability to complete the attempt on the part of the attempter is a question which has already been touched upon in its general relation.’ It is enough now to view it simply in relation to rape. If there be juridical incapacity for the consummated offense (e. g., infancy), there can be no conviction of the attempt; and therefore, a boy under fourteen cannot, according to the prevalent opinion, be convicted of an attempt to commit a rape, as principal, in the first degree.? It is otherwise when the incapacity is merely nervous or physical. A man may fail in consummating a rape from some nervous or physical incapacity intervening between attempt and execution. éral, sous le prétexte d’une acte qui n’a produit aucun mal matériel, pas méme une danger, une alarme raison- nable? Dés lors, il y aurait plus de raison encore 4 punir les hommes notoirement vicieux et livrés A de funestes habitudes. Ils sont plus A craindre qu’une espéce de fou qui es- saie une fois de faire un acte im- possible. An analogous rule is laid down in forgery. Infra, § 900. 1 Party physically incompetent to commit crime contemplated cannot be guilty of attempt to commit that crime. Foster v. Com. 96 Va. 306, 42 L.R.A. 589, 70 Am. St. Rep. 846, 31 S. E. 503, 1898. See State v. Mitchell, 170 Mo. 633, 94 Am. St. Rep. 768, 71 S. W. 175, 1902. The ruling is otherwise in the case of an attempt to rape. State v. Bartlett, 127 Iowa, 689, 104 N. W. 285, 1905. See Territory v. Keyes, 5 Dak. 244, 38 N. W. 440, 1888. Attempt must be to accomplish an act possible in its nature; impossi- bility of accomplishment by reason of miscalculation or outside inter- ference does not avoid liability. Stokes v. State, 92 Miss. 415, 2 L.R.A.(N.S.) 898, 46 So. 627, 1908. Thus, that defendant in making an assault upon a child threw her in such a position that it was impossi- ble to ravish her is no defense in prosecution for assault with intent carnally to know and abuse her. Com. v. Shaw, 184, Mass. 221, 1888. Firing gun at another, charged with powder and a light cotton wad, at a distance of 40 feet, such other person not being shown to have been endangered, or his life put in ‘jeop- ardy, by the act, because of the man- ner in which the gun was loaded, does not justify conviction of an at- tempt to murder, although the ac- cused thought the gun to be loaded with a ball. State v. Swails, 8 Ind. 524, 65 Am. Dec. 772, 1856. See Rice v. State, 16 Ind. 298, 1861; Kunkle v. State, 32 Ind. 220, 229, 1869; Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22, 1871; State v. Hubbs, 58 Ind. 416, 1877; Howard v. State, 67 Ind. 404, 1879. —But accused is guilty of assault under such circumstances, See [Iowa] State v. Shepard, 10 Iowa, 126, 1859. [Mass.] Com. v. White, 110 Mass. 407, 1872. [N. H.] Beach v. Han- cock, 27 N. H. 223, 59 Am. Dec. 373, 1853. [Eng.] Reg. v. St. George, 9 Car. & P. 483, 1840. 2 Infra, § 686; Rex v. Eldershaw, 3 Car. & P. 396, 1828; Reg. v. Philips, 8 Car. & P. 736, 1839; State v. Handy, 4 Harr. (Del.) 566, 1845. Compare: [Mass.] Com. v. Green, 2 Pick. 380, 1823. [N. Y.] People v. Randolph, 2 Park. Crim. Rep. 213, 1854. [Ohio] Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536, 1846; Smith v. State, 12 Ohio St. 466, 80 Am. Dec, 355, 1861. And see supra, §§ 87, 214; infra, § 686. § 224) ATTEMPTS. 289 But this failure would be no defense to the indictment for the attempt. At the same time there must be apparent capacity.® § 224. Need not be capable of success. That capabil- ity of success is essential to an attempt was proclaimed by high English authority,’ Lord Chief Justice Cockburn saying “that an attempt to commit a felony can only be made out when, if no interruption had taken place, the attempt could have been carried out successfully, and the felony completed of the at- tempt to commit which the party is charged.” This limitation, however, has already been shown to be erroneous,” it being clear that apparent adaptation may constitute the attempt. This de- cision in Reg. v. Collins has been expressly overruled in a subse- quent case, and the question may now be regarded as settled.‘ Certainly an attempt to suborn a witness would be indictable, though such witness was of a character so high as to make suc- cess impossible, or though the witness was incompetent.2 And so has it been ruled expressly that the taking a null false oath before an incompetent officer is an indictable attempt,® and that 3 Infra, §§ 696, 698. See [Ala.] Lewis v. State, 35 Ala. 380, 1862. {Ind.] State v. Swails, 8 Ind. 524, 65 Am. Dec. 772, 1852; Kunkle v. State, 32 Ind. 220, 1875. [N. C.] State v. Elick, 52 N. C. (7 Jones, L.) 68, 1859. See also supra, §§ 632, 800. 1Reg. v. Collins, Leigh & C. C. C. 471, 32 L. J. Mag. Cas, N. S. 177, 10 Jur. N. S. 686, 10 L. T. N. S. 581, 12 Week. Rep. 886, 9 Cox, C. C. 497, 1864. 2 Supra, § 221. 3Infra, § 789. Reg. v. Goodall, 2 Cox, C. C. 41, 1846, 1 Den. C. C. 187, sub nom. Reg. v. Goodchild, 2 Car, & K. 298, 1846. See, to same effect, {Iowa] State v. Fitzgerald, 49 Iowa, 260, 31 Am. Rep. 148, 3 Am, Crim. Rep. 1, 1878. [Mass.] Com. v. Tay- lor, 182 Mass. 261, 1882. [Ohio] Wil- son v. State, 2 Ohio St. 319, 1853. Compare: Com. v. Wood, 11 Gray, 85, 1857. 4Reg. v. Brown, L. R. 24 Q. B. Div. 357, 1889. See also Reg. v. Ring, 61 L. J. Mag. Cas. N. S. 116, 66 L. T. N.S. 300, 17 Cox, C. C. 491, 56 J. P. 552, 1892. Crim. L. Vol. I—19. § 221; infra, 5 Infra, §§ 1518, 1535. 6 Infra, § 1592. In New York, on the trial of an indictment under the statute for an attempt to commit arson, it was shown that the prisoner solicited one K to set fire to a barn, and gaye him materials for the purpose. This was held sufficient to warrant a con- viction, though the prisoner did not mean to be present at the commission of the offense, and K never intended to commit it. People v. Bush, 4 Hill, 138, 1843. The New York statute, however, goes beyond those of England and Pennsylvania in incorporating the words “and in such attempt shall do any act toward the commission of such offense.” See criticism in Stab- ler v. Com. 95 Pa. 318, 40 Am. Rep. 653, 1880. The intent to do bodily harm may be inferred from the fact that the prisoner intended to do harm, but in another portion of the body of the person assaulted. People v. Miller, 91 Mich. 639, 52 N. W. 65, 1892 290 CRIMINAL LAW. [§ 224 it is no defense to an indictment for mailing drugs with the in- tent of producing abortion, that the drugs were harmless.’ It has also been held that destroying a ship with intent to defraud the insurers is indictable, though the vessel was not insured.® And in forgery, which is in the nature of an attempt, absolute potency in the forged instrument is not necessary to sustain the indictment. It is enough if there is a possibility of fraud.® If there be no possibility of success, and this was at the time known to the party attempting, it has been argued that no indictment lies..° Yet this is not an absolute principle. A man may throw himself, from sense of duty, right or wrong, into an un- lawful enterprise, which he knows must fail; but which does not cease to be indictable, because it never ceased to be desperate. § 225. Must be probable object within reach. We turn next from the actor to the object in view, and take up the question whether it is essential to an attempt that the object really exists." In England in 1864, in a case just noticed, it TInfra, §§ 2179-2182. See State v. Fitzgerald, 49 Iowa, 260, 31 Am. Rep. 148, 3 Am. Crim. Rep. 1, 1878. 8 United States v. Cole, 5 McLean, 513, Fed. Cas. No. 14,832, 1851. No defense to an assault to com- mit rape on a child, that the child was put in a position in which rape was impossible. See Com. v. Shaw, 134 Mass. 221, 1883, cited infra, § 748. As to analogous rulings in forgery, see infra, §§ 885-901. 9Infra, 900. 10 See Rex v, Edwards, 6 Car. & P. 515, 1834. That impossibility of accomplish- ment of attempt to murder, because of an intervening brick wall through which accused could not shoot, may reduce the offense to a simple as- sault, is shown by the case of the soldier Mason, who attempted to shoot Guiteau, the assassin of Presi- dent Garfield, as Guiteau was lying on a couch protected by an interven- ing brick wall. See note in 40 Am. Rep. 492. 1See supra, § 175. An overt act towards consumma- tion of an offense or crime completes the offense of an attempt; the intent of the accused being thwarted by the presence of an insuperable obstacle, or interrupted by third party, or the want of an object to be operated up- on, does not rob the act of its crimi- nal character. See supra, § 212, foot- note 1. Want of a thing to be operated upon, in those cases in which the fact of such absence of the thing is of a nature likely to be unknown to the accused at the time, does not prevent him from being guilty of a criminal attempt. [Ind.] Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22, 1871 (charging attempt to rob of a $5 bill, when victim is shown not to have had the $5 bill). [Mass.] Com. v. McDonald, 5 Cush. 365, 1850; Com. v. Jacobs, 9 Allen, 274, 1864. [Mich.] People v. Jones, 46 Mich. 441,9 N. W 486, 1881. [Ohio] State v. Beal, 37 Ohio St. 108, 41 Am. Rep. 490, 1881 (entering building to steal money from safe, when there was no money in the safe). [Tenn.] Clark v. State, 86 Tenn. 511, 8 S. W. 146, 1887 (no money in drawer from which accused attempted to steal money). See supra, § 223, footnote 1. When person has no property on his person; assault with intent to take from the person property (e. g., § 225] ATTEMPTS. 291 was held that it was error to convict of an attempt to steal from the pocket, without proof that there was something in the pocket to steal; *® but this decision is not in accordance with the line of American authority,® and has been overruled,* nor with the reason of the thing, for the offense is not private simply, against merely the person whose goods are imperiled; but public, in- ‘dictable as a scandal and breach of public peace, irrespective of the question of personal loss. Independently of this consider- ation, who can say that the object of the thief was exclusively to take one particular article? If the pleading indeed, so put it to the court, as was the case in Reg. v. Collins,® and if it ap- pear that the object thus stated is wanting, then this argument fails; but in ordinary cases, when a thief attempts to go to a pick his pockets) which he does not happen to have (e. g., nothing in the pockets) is a criminal attempt to take articles of property from his possession. [Ind.] Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22, 1871. See [Conn.] State v. Wilson, 30 Conn. 500, 1861 [Mass.] Com. v. Mec- Donald, 5 Cush. 365, 1850; Com. v. Jacobs, 9 Allen, 274, 1864. [Mich.] People v. Jones, 46 Mich. 441, 9 N. W. 486, 1881 (adopting Com. v. Mé- Donald, supra). [Ohio] State v. Beal, 37 Ohio St. 108, 41 Am. Rep. 490, 1881 (arguendo). 2 Reg. v. M’Pherson, 1 Dears. & B. C. C. 197, 26 L. J. Mag. Cas. N. S. 134, 3 Jur N. S. 523, 5 Week. Rep. 525, 7 Cox, C. C. 281; Reg. v. Collins, Leigh & C. C. C. 471, 33 L. J. Mag. Cas. N. S. 177, 10 Jur N. 8. 686, 10 L. T. N. 8. 581, 12 Week. Rep. 886, 9 Cox, C. C. 497, 1864; over- ruled by Reg. v. Ring, 61 L. J. Mag. Cas. N. S. 116, 66 L. T. N. S. 300, 17 Cox, C. C. 491, 56 J. P. 552, 1892, and Reg. v. Brown, L. R. 24 Q. B. Div. 357, 59 L. J. Mag. Cas. N. S. 47, 61 L. T. N. S. 594, 38 Week. Rep. 95, 16 Cox, C. C. 715, 54 J. P. 408, 1887. As to attempts to steal, see [Eng.] Reg. v. Sutton, 2 Moody, C. C. 29, 8 Car. & P. 291, 2 Lewin, C. C. 272, 1838; Reg. v. Cheeseman, Leigh & C. C. C. 140, 1862, 9 Cox, C. C. 100, 31 L. J. Mag. Cas. N. 8. 89, 8 Jur. N. S, 143, 5 L. T. N. S. 717, 10 Week. Rep. 255. [Ala.] Wolf v. State, 41 Ala. 412, 1868. [Ind.] Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22, 1871. [N.C.] State v. Utley, 82 N. C. 556, 1882. [Ohio] State v. Beal, 37 Ohio St. 108, 41 Am. Rep. 490, 1881. [Tenn.] Clark v. State, 86 Tenn. 511, 8 S. W. 145, 1887. 3 [Conn.] State v. Wilson, 30 Conn. 500, 1861. [Ind.] Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22, 1871. [Mass.] Com. v. McDonald, 5 Cush. 365, 1850. [N. Y.] People v. Moran, 123 N Y. 254, 10 L.R.A. 109, 20 Am. St. Rep. 732, 25 N. E. 412, 1890. [Ohio] State v. Beal, 37 Ohio St. 108, 41 Am. Rep. 490, 1881. [Pa.] Rogers v. Com 5 Serg. & R. 463, 1819. 4 Reg. v. Brown, L. R. 24 Q. B. Div. 357, 59 L. J. Mag. Cas. N. S. 47, 61 L. T. N. 8. 594, 38 Week. Rep. 95, 16 Cox, C. C. 715, 54 J. P. 408, 1889. 5 Compare Reg. v. Collins, Leigh & C. C. C. 471, 38 L. J. Mag. Cas. N. S. 177, 10 Jur. N. 8S. 686, 10 L. T. N. S. 581, 12 Week. Rep. 886, 9 Cox, C. C. 497, 1864; Roscoe, Crim. Ev. § 864; People v. Jones, 46 Mich 441, 9 N. W. 486, 1881. Probable object within reach not necessary.—In State v. Beal, 37 Ohio St. 108, 41 Am. Rep. 490, 1881, the question in the text was discussed, and it was held that an indictment for burglary with intent to steal from a safe could not be defeated by proof that the safe was not used as a place of deposit for valuables. Distinction taken in M’Pherson’s Case disapproved. See infra, § 1039. 292 CRIMINAL LAW. [§ 225 place to steal, then the presumption is that if he cannot get the object primarily in view, he will content himself with another. This presumption was invoked in a German case, in which the assumption was that the object the thieves had in view, in an attempted entrance in a building, was some grain they believed to be stored there, which grain had been previously removed. It was held, however, that the attempt was to steal, and that when there is such an attempt the thief would look forward to taking whatever he could get.® More difficult questions arise when the object is absolute:y nonexistent. Suppose a man takes aim at a shadow or a tree, imagining it to be anenemy. The guilty intent here exists; but is there such an overt act as to make up an attempt? According to the definition of attempt heretofore given (a deliberate crime which is begun, but through circumstances independent of the will of the actor is left unfinished), we must answer this ques- tion in the negative.” To shoot at a shadow or a tree is not an indictable offense, unless under circumstances disturbing public peace.® 6 See Schwarze, ut supra; and see remarks of Coleridge, J in Reg. v. Clarke, 1 Car. & K. 421, 1844, as sanctioning this; and Spears v. State, 2 Ohio St. 585, 1853; Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22, 1871, and cases cited infra, § 1039. 7See Rex v. Lovel, 2 Moody & R. 39, 1839, cited supra, § 221. See supra, §§ 138-143. Intent to murder—Mistaking log for man.—In Reg. v. M’Pherson, Dears. & B. C. C. 201, 26 L. J. Mag. Cas. N S. 134, 3 Jur. N. 8. 523, 5 Week. Rep. 525, 7 Cox, C. C. 281, 1857, Bramwell, B, argued that if A mistakes a log of wood for B, and, intending to murder B, strikes the log with an ax, this is not an at- tempt to murder B. This is adopted by Sir J. F. Stephen. Digest Crim. Law, 5th ed. art 50. But how if A had shot at the log? For criticisms on the conclusions in the text, see Cent. L. J. July 18, 1879. 8 An analogy may be found in cases of forgery, which ceases to be in- dictable when the person whose pa- per is forged is absolutely and noto- riously nonexistent. Infra, §§ 898- 901. Attempt to smuggle—Lady Eldon, when traveling with her husband on the Continent, bought what she sup- posed to be a quantity of French lace, which she hid, concealing it from Lord Eldon in one of the pock- ets of the coach. The package was brought to light by a custom officer at Dover. The lace turned out to be an English manufactured article, of little value, and, of course, not subject to duty. Lady Eldon had bought it at a price vastly above its value, believing it to be genuine, in- tending to smuggle it into England. Here was an attempt to smuggle, though the object was one not sus- ceptible of being smuggled. In Respublica v. Malin, 1 Dall. 33, 1 L. ed. 25 (infra, § 2148), it was held that it was not treason when a subject who starts to join the enemy joins by mistake a troop of his own country. Though treason is in the nature of attempt, the statute makes an actual adhering to an enemy es- sential. § 225] ATTEMPTS. 293 Reasoning does not apply where there is an actual injury at- tempted to the person or property of another, though, from circumstances exterior to the actor’s will, this injury does not produce its immediate contemplated result. Thus, as has been seen, an attempt at miscarriage may be proved, though it turns out the woman was not actually pregnant; ® and so, no doubt, an attempt at forgery could be sustained, although the forged paper attempted to be made could not by any possibility de- fraud.” And so, if the shooting be at a shadow sufficiently near another person as to put the latter in peril; or if the shooting be at an empty carriage, the offender supposing it to be occupied, then the attempt is made out, on the ground that it is a mis- demeanor to shoot into any place usually frequented by human beings."* It need scarcely be added that where a person shoots at a crowd generally, intending to hurt anyone who may be hit, he may be indicted for an attempt to hurt A, one of the crowd.” So where A shoots at B, mistaking him for C, if there is an actual assault on B, though under a mistake as to who he is, A may be indicted for attempting to kill B,” or for wounding B with intent to kill.* 8 Reg. v. Goodall, 2 Cox, C. C. 41, 1 Den. C. C. 187, 2 Car. & K. 293, 1846; Com. v. Taylor, 132 Mass. 261, 1882. See 2 Stephen, History Crim. Law, 225. 10 Reg. v. Nash, 2 Den. C. C. 493, 21 L. J. Mag. Cas. N. S. 147, 16 Jur. 553, 1851; Reg. v. Dodd, 18 L. T. N. 8. 89, 1868. 11 See supra, § 157; infra, §§ 4438, 444, 1039. An indictment for attempt to com- mit extortion cannot be sustained where all the elements of the crime were present except one, namely, that A was induced by fear to pay defendant the money. People v. Gardner, 73 Hun, 66, 25 N. Y. Supp. 1072, 1893. 12 Reg. v. Fretwell, Leigh & C. C. C. 443, 1862, 9 Cox, C. C. 471, 33 L. J. Mag. Cas. N. S. 128, 10 Jur. N. S. 595, 10 L. T. N. S. 428, 12 Week. Rep. 751. See supra, § 142; infra, §§ 443, 444. 18 Rex v. Holt, 7 Car. & P. 518, 1836. See Reg. v. Lallement, 6 Cox, C. C. 204, 1854. See infra, §§ 441, 442, and particularly supra, §§ 138- = 143. Intervention of third person neces- sary; effect on indictability.—An in- teresting question arises whether an indictment lies when capability of success depends upon the interven- tion of an independent third person. “In Reg. v. Williams, 1 Den. C. C. 39, 1 Car. & K. 589, tke prisoner was indicted under the last-mentioned section for attempting to administer poison. It appeared that he had de- livered poison to V, and desired him to put it into B’s beer; V delivered the poison to B, and toJd him what had passed. It was held that the prisoner could not be convicted on this indictment. But quere, if this is not an attempt indictable at com- mon law. See the case of Rex v. Higgins, 2 East, 5, 6 Revised Rep. 358. Roscoe, Crim. Ev, 303. Reg. v. Williams, is approved in Stabler v. Com. 95 Pa, 318, 40 Am. Rep. 653, 1880. The difficulty in such case, at common law, would be removed by averring the attempt to be to induce such third person to administer poi- son. 14 Supra, §§ 138, 157; infra, §§ 839, 5. 294 CRIMINAL LAW. [§ 226 § 226. Abandoned attempt not indictable. Of aban- donment attempts we have, in our criminal practice, few illus- trations, unless it be in cases of attempts at treason, of which the English state trials give instances, where the defense was that the defendant withdrew from the traitorous conspiracy before an overt act. This defense, however, has been more than once overruled, for though it constitutes an appeal to clemency, it is no defense to the charge of traitorous combination.* The true line of distinction is this: If an attempt be volun- tarily and freely abandoned before the act is put in process of final execution, there being no outside cause prompting such abandonment, then this is a defense; but it is otherwise when the process of execution is in such a condition that it proceeds in its natural course, without the attempter’s agency, until it either succeeds or miscarries.” 1Stephens v. Myers, 4 Car. & P. 349, 1830; though see Mulcahy v. Reg. L. R. 3 H. L. 306, 1868; Reg. v. McCann, 28 U. C. Q. B 516; Goff v. Prime, 26 Ind. 196, 1866. Infra, § 267. 2[Ala.] Lewis v. State, 35 Ala. 380, 1862. [Conn.] State v. Allen, 47 Conn. 121, 1878. [Mo.] State v. Hayes, 78 Mo. 307, 1883. [N. C.] State v. McDaniel, 60 N. C. (1 Winst. L.) 249, 1864. See infra, § 252; also Pinkard v. ‘State, 30 Ga. 757, 1860; State v. Elick, 52 N. C. (7 Jones, L.) 68, 1859, and other cases cited infra §§ 748 et seq. In the issue of voluntariness we may consider the following contin- gencies: Suppose that a burglar finds that the window he expected to enter has been blocked up during the night; or suppose, as was the case in one of the attempts on the life of Wil- liam III., the assassins, as they ap- proach, see in the distance a regi- ment of cavalry encircling their in- tended victim; or suppose that the pickpocket, just as he is inserting his hand, is arrested by a police of- ficer.—no one would doubt that in all these cases the consummation of the offense was hindered by causes outside of the will of the offender. In such a case, no abandon- He was physically prevented from effecting the purpose. He could not have penetrated the wall, or broken through the line of cavalry, or picked the pocket when in the policeman’s grasp. A much more difficult question arises when the attempt is not physi- eally interrupted by extraneous con- ditions, but where these conditions are such as to induce the offender to withdraw. Suppose that instead of finding the window walled up, he sees some slight disarrangement in the premises which leads him to suspect that he is watched. Suppose that instead of seeing the line of cavalry in his way, he finds a change has taken place in the appointments of the palace, from which he infers that the plot has been discovered. Sup- pose that instead of being caught by the policeman he sees somebody in the distance, a good deal like a de- tective, curiously inspecting him. Certainly we cannot consider his withdrawal under such circumstances voluntary. And so speak the cases cited. But suppose the hindrance which caused the offender to back out was imaginary. It was not a cause out- side of himself. It was a cause in- side of himself. Here, again, we are entangled in a metaphysical discus- § 226] ATTEMPTS. 295 ment of the attempt, and no withdrawal from its superintend- ence, can screen the guilty party from the results.’ If, in addition to abandoning the attempt, the guilty party takes means to cause it effectually to miscarry, how will it be as when he informs a person to whom a poisoned dish has been sent that the dish is poisoned; and the mischief is stopped ? Here, so far as concerns the actor, the attempt is abandoned be- fore it has been virtually put in process of final execution; and hence this abandonment is a defense.* The offender has re- treated in such a way as to render it impossible for evil conse- quences to ensue. Doctrine that abandonment of an attempt not yet put in process of final execution is a defense, is based on two reasons given.® First, the character of an attempt is lost when its execution is voluntarily abandoned. There is no conceivable overt act to which the abandoned purpose could be attached. Secondly, the policy of the law requires that the offender, so long as he is ca- pable of arresting an evil plan, should be encouraged to do so, by saving him harmless in case of such retreat before it is pos- sible for any evil consequences to ensue. any private person, has been injured by his act. sion. Are what we see in any case real existences, or can our impres- sions of them be at the utmost any- thing more than mirrors within our- selves? But if all abandonment is voluntary when produced by impres- sions within ourselves, there can be no involuntary abandonments, since there are no abandonments not so produced Such is the reply we may make, taking even the most realistic metaphysical theorists as our guides, to those who argue that an unreal impression of danger is not an ef- ‘fective condition. It is enough, how- ever, to say that as in other cases (e. g., self-defense) unreal impres- sions are regarded as effective con- ditions, they may be so regarded in this case. 38 [Eng.] See Reg. v. Taylor, 1 Fost. & F. 511, 1859; Reg. v. Sharpe, 3 Cox, C.C 288, 1849. [Mass.] Com. v. Tobin, 108 Mass. 426, 11 Am. Rep. 375, 1872. [S. C.] State v. Blair, 13 Rich. L. 93. In treason, which is a high grade Neither society, nor There is no of attempt, where the attempt is frustrated by extraneous interrup- tion, then such frustration is no de- fense. United States v. Pryor, 3 Wash. C, C. 234, Fed. Cas. No. 16,096, 1821. But in such case (e. g., an abortive attempt to communicate in- telligence, or to furnish supplies to an enemy) the proper course is to indict for the attempt Compare: United States v. Pryor, 3 Wash. C. C. 234, Fed. Cas. No. 16,096, 1821, in which it was held that such attempt was treason; com- pare Rex v. Hensey, 2 Ld. Kenyon,- 366, 1 Burr. 642; and see infra, § 263. An attempt to commit rape may be abandoned after the first approach, yet nevertheless such attempt is in- dictable. See Lewis v. State, 35 Ala. 380, 1862, cited infra, and see also infra, § 749. 4See 1 Hale, P. C. 618; Goff v. Prime, 26 Ind. 196, 1866. 5 Berner, Lehrbuch d. Strafrechts, p. 176. As to assaults, see infra, § 799. . 296 CRIMINAL LAW. [§ 226 damage, therefore, to redress. To punish him after retreat and abandonment would be to destroy the motive for retreat and abandonment.® It is to be noticed that as the attempt is only provable, however, by some overt act, so the abandonment of the attempt cannot be proved by mere conjectural tests or by declarations of mental change. As declaring an intention to do a thing is not an in- dictable attempt, so declaring an intention to give up an at- tempt is not an abandonment of the attempt. If it were other- wise, criminal attempts, especially political, would cease to be indictable, for there are few cases in which such criminal at- tempts, when in process of execution, are not disavowed. There must be substantive acts showing that the abandonment was real, just as there must be substantive acts showing the attempt was: real. It should be remembered that if such abandonment is caused by fear of detection it is no defense, if the attempt progress suf- ficiently toward execution to be per se indictable before such abandonment. Thus, if a thief, when moving his hand toward. a pocket, desists on seeing a detective, the offense is made out. To the same effect, perhaps, may be cited American decisions in: which attempts at rape, abandoned before consummation, were held indictable.” It is true that it may be observed that in these cases the offense of felonious assault was complete prior to the period of abandonment. More exactly illustrative of the prin- ciple is an English case tried before Chief Baron Pollock, in which it appeared that the defendant, having lighted a lucifer match to set fire to a stack, desisted on discovering he was watched. It was held, and properly, that this abandonment of 6The Roman law strikes at the penitet peccasse, pene est in- same distinction: Gloss. ad L. 67. nocens. See infra, § 263. D. de furt. (47, 2.) Si processum 7[Ala.] State v. Lewis, 35 Ala. est ad actum: si quidem consumma- 380, 1862. [Cal.] People v. Stewart, tum est et perfectum, non potest 97 Cal. 238, 32 Pac. 8, 1894. [N. C.] postea peenitere ut evitet penam. Si State v. Elick, 52 N. C. (7 Jones, L.) autem actum non consummatum est 68, 1859; State v. McDaniel, 60 N. nec perfectum: si quidem quia noluit, C. (1 Winst. L.) 249, 1864. sed potuit, licet pcenitere, et non As qualifying above, see Kelly v. incidit in poenam. See also Seneca Com. 1 Grant, Cas. 484, 1854. See Agamem, v. 242 sq. Nam sera nun- infra, § 991. quam est ad bonos mores via: Quem : § 228] ATTEMPTS. 297 purpose was no defense.® Jt must also be remembered that if an attempt—e. g., an assault—is frustrated by force, such frus- tration is no defense.°® § 227. When attempt is resisted it may be inde- pendently tried, though consummation is yielded to. Where the attempt is resisted at first, but the consummation of the crime is assented to, the offender may be indicted for the at- tempt. In rape and robbery we can conceive of cases of this class. A man assaults a woman with intent to ravish. She re- sists; but ultimately yields. Here, if his intention was to use force to the end, he is indictable for the attempt,’ though it is. otherwise where he did not intend to use force.” § 228. Acquiescence through fraud or incapacity no bar. Where the attempt is acquiesced in by the party injured, through fraud or incapacity, the acquiescence does not bar the prose~ cution.? It is clear that when the person injured is incapable of giving ussent, such assent cannot be set up as a defense. 8 Reg. v. Taylor, 1 Fost. & F. 511, 1859. See supra, § 220. 9 Stephens v. Myers, 4 Car. & P. 349, 1830. Infra, § 798. Attempt to commit burglary.—In an Upper Canada. prosecution for an attempt to commit burglary. it was proved that two defendants agreed to commit the offense on a certain night, together with C, who, however, was detained at home by his father, § who suspected the design. The de- fendants were seen about midnight entering a gate 50 feet from the house; they came toward the house to a picket fence in front, in which there was a small gate, but there was no proof that they came nearer the house than 12 or 13 feet, nor did they pass the picket gate They went, as it was supposed, to the rear of the house, and were not seen afterward. It was held by the Queen’s bench that there was not. sufficient establishment of a persis- tence in the attempt to justify a con- viction, the attempt appearing to have been voluntarily abandoned be- fore any mischief was done. It was added, however, that if it appeared that such abandonment was not vol- untary, but caused by surprise and interruption from others, and that but for such surprise and interrup- tion they would have carried out: their burglarious design, there was ground for a conviction. Reg. v. Me-- Cann, 28 U. C. Q. B. 517. 1See infra, § 750; State v. Harti- gan, 32 Vt. 607, 78 Am. Dec 609, 1860. For other cases, see supra, 180. 2Ibid.; Taylor v. State, 50 Ga. 79, 1873. 1See supra, § 187. Attempt indictable though woman yields—That the attempt may be indicted even though the woman af- ter first resisting ultimately yields, see People v. Bransby, 32 N. Y. 525, 1865; State v. Cross, 12 Towa, 66, 79 Am. Dec. 519, 1861. See [Eng.] Reg. v. Banks, 8 Car. & P. 574, 1838; Reg. v Day, 9 Car. & P. 722, 1841. [Iowa] State v. McLaughlin, 44 Towa, 87, 1876; State v. Atherton, 50: Iowa, 192, 1878. [Vt.] State v. Hartigan, 32 Vt. 607, 78 Am. Dee.. 609, 1860. See, also, infra, §§ 701, 750. 2Reg. v Mayers, 12 Cox, CG. C. 311, 1872. Supra, § 187. 298 CRIMINAL LAW. [§ 229 II. InpictMeEn ts. § 229. In indictments, the laxity permitted in assaults does not hold good. In indictments for attempts the lax- ity permitted in assaults will not be maintained. No doubt it is enough to charge that A did “make an assault” on B. But the reason is that “assault” is a term which describes an act easily defined, which asserts a consummated offense, and which is always indictable, no matter in what sense the term may be used. But “attempt” is a term peculiarly indefinite. It has no prescribed legal meaning. It relates from its nature to an un- consummated offense. It covers acts some of which are indict- able and some of which are not. § 230. Nor do statutory rulings affect question at com- mon law. Nor do decisions under statutes rule the ques- tion at common law. It is within the power of the English Par- liament and, as it has frequently been ruled,’ of the legislatures of our American states, to pass statutes declaring a particular act to be indictable, and providing that it shall be enough to de- scribe such act in the statutory terms.” When this is done by 1See Wharton, Crim. Pl. & Pr. § 90. 2 General, but not a universal, rule is that a statutory offense may be poe in language of the statute. See [Fed.] United States v. Gooding, 12 Wheat. 460, 6 L. ed 693, 1827; United States v. Mills, 7 Pet. 138, 8 L. ed. 636, 1883; United States v. The Neurea, 19 How. 94, 15 L. ed. 531, 532, 1856; United States v. Reese, 92 U. S. 214, 238, 23 L. ed. 563, 570, 1876; United States v. Simmons, 96 U. 8S. 360, 363, 24 L. ed. 819, 820, 1878; Evans v. United States, 153 U. S. 584, 38 L. ed. 830, 14 Sup. Ct. Rep. 934, 9 Am. Crim. Rep. 668, 1894; Coffin v. United States, 156 U. S. 432, 448, 39 L. ed. 481, 489, 15 Sup. Ct. Rep. 394, 1895; Ledbetter v. United States, 170 U. S. 606, 612, 42 L. ed. 1162, 1164, 18 Sup. Ct. Rep. 774, 1898; Yeager v. United States, 178 U. S. 615, 44 L. ed. 1217, 20 Sup. Ct. Rep. 1031, 1900; United States v. Wilson, Baldw. 78, 116, Fed. Cas. No. 16730, 1830; United States v. Hinman, Baldw. 294, Fed. Cas. No. 15,370, 1831; United States v. Henry, 3 Ben. 31, Fed. Cas. No. 15,350, 1868; Re Coleman, 15 Blatchf. 406, 417, Fed. Cas No. 2,980, 1879; United States v. Noelke, 17 Blatchf. 560, 1 Fed. 426, 4382, 1880; United States v. Dustin, 2 Bond, 385, Fed. Cas. No. 15,011, 1869; United States v. White, 2 Cin. Law Bull. 27, Fed. Cas. No. 16,674, 1877; United States v. Cor- roll, 32 Fed. 775, 1887; United States v. Ford, 34 Fed. 26, 1888; United States v. Wardell, 49 Fed. 914, 1892; United States v. Scott, 74 Fed. 213, 1895; Re Bellah, 116 Fed. 69, 72, 1902; Sims v. United States, 58 C. C. A. 95, 121 Fed. 515, 19038; United States v. Lake, 129 Fed. 499, 1904; United States v. Staton, 2 Flipp. 328, Fed. Cas. No. 16,382, 1878; Marcus v. United States, 2 Hayw. & H. 355, Fed. Cas. No. 9,062a, 1860; United States v. Ballard, 13 Int. Rev. Rec. 195, Fed. Cas. No. 14,506, 1871; United States v. Schuler, 6 McLean, 33, Fed. Cas. No. 16,234, 1853; Unit- ed States v. Patterson, 6 McLean, § 230] ATTEMPTS. 299 direction or implication, it is proper for the courts to hold, as has been done, that an indictment charging that the defendant 466, Fed Cas. No. 16,011, 1855; United States v. O’Sullivan, 9 N. Y. Leg. Obs. 257, 260, Fed. Cas. No. 15,974, 1851; United States v. Hear- ing, 11 Sawy. 514, 26 Fed. 744, 1886; United States v. Kelly, 2 Sprague, 80, Fed. Cas. No. 15,515, 1863. [Ala.] Crawford v. State, 44 Ala. 382, 1870; White v. State, 44 Ala. 409, 1870. [Ark.] Moffatt v. State, 11 Ark. 169, 1850; Lemon v. State, 19 Ark. 171, 1857; State v. Witt, 39 Ark. 216, 1882; Fortenbury v. State, 47 Ark. 188, 1S. W. 58, 1886. [Cal.] People v. Saviers, 14 Cal. 29, 1859 (even if new offense is created by the statute); Peopie v. White, 34 Cal. 183, 1867; People 5. Burke, 34 Cal. 661, 1868; People v. Lewis, 61 Cal. 366, 1882; People v. Murray, 67 Cal. 108, 7 Pac. 178, 6 Am. Crim. Rep. 54, 1885 (for attempt to com- mit robbery, in language of statute) ; People v. Donaldson, 70 Cal. 116, 11 Pac. 681, 1886; People v. Rozelle, 78 Cal. 84, 20 Pac. 36, 1888 [Colo.] Cohen v. People, 7 Colo. 274, 3 Pac. 385, 1883. [Conn.] Whiting v. State, 14 Cenn. 487, 36 Am. Dec. 499, 1842; Rawson v State, 19 Conn. 292, 299, 1848; State v. Jackson, 39 Conn. 229, 1872. [D. C.] United States v. Mc- Bride, 7 Mackey, 371, 382, 482, 1889; Moses v. United States, 16 App. D. C. 428, 50 L.R.A. 532, 1900. [Ga.] Cook v. State, 11 Ga. 53, 56 Am. Dec, 410, 1852. [Mll.] Cole v. People, 84 Ill. 216, 1876; West v. People, 137 Ill 189, 197, 27 N. E. 34, 34 N. E. 254, 1891. [Ind.] Howard v. State, 87 Ind. 68, 1882; Toops v. State, 92 Ind. 13, 1883; State v. Miller, 98 Ind. 70, 1884. [Kan.] State v. Foster, 30 Kan 365, 2 Pac. 628, 1883; State v. Beverlin, 30 Kan. 611, 2 Pac. 630, 1883. [Ky.] Com. v. Stout, 7 B. Mon. 249, 1846; Com. v. Cook, 13 B. Mon. 149, 1852. [Md.] Parkinson v. State, 14 Md. 184, 74 Am. Dec. 522, 1859. [Mass.] Hopkins v. Com. 3 Met. 460, 465, 1842; Com. v. Kelly, 12 Gray, 176, 1858; Com. v. Brown, 141 Mass. 78, 6 N. E. 377, 1886. [Minn.] State v Comfort, 22 Minn. 271, 1875. [Miss.] Riley v. State, 43 Miss. 397, 1870. [Mo.] Simmons v. State, 12 Mo. 268, 49 Am. Dec. 131, 1848; State v Bennett, 102 Mo. 369, 10 L.R.A. 717, 721, 14 S. W. 865, 1890. [Nev.] State v. Trolson, 21 Nev. 422, 32 Pac. 930, 9 Am. Crim Rep. 243, 1893. [N. H.] State v Pierce, 43 N. H. 276, 1861; State v. Kennison, 55 N H. 242, 1875; State v. Beckman, 57 N. H. 174, 1876. [N. J.] State v. Thatcher, 35 N. J. L. 445, 1872. [N. Y.] People v. Van Rensselaer, 8 Barb. 189, 202, 1850; Frazer v. People, 54 Barb. 306, 1863; People v. Taylor, 3 Denio, 93, 1846; People v. Enoch, 13 Wend. 159, 27 Am. Dec. 197, 1834. [N.C.] State v. Sloan, 67 N. C. 357, 1872. [Ohio] Gatewood vy. State, 4 Ohio, 387, 1831; Hess v. State, 5 Ohio, 5, 27 Am. Dec. 767, 1831; Ellars v State, 25 Ohio St. 385, 1874. [S. C.] State v. Smart, 4 Rich. L. 356, 55 Am. Dec. 683, 1851. [Utah] United States v. Can- non, 4 Utah, 122, 7 Pac 369, 1885. [Vt.] State v. Cook, 38 Vt. 437, 1866. [Va.] Com. v. Nax, 18 Gratt. 790, 1856; Helfrick v. Com. 29 Gratt. 844, 1878. [Wash.] Foster v. Territory, 1 Wash. 418, 1874. [W. Va.] State v. Riffe, 10 W. Va. 794, 1877. [Wyo.] McCann v. United States, 2 Wyo. 274, 297, 1878 See notes in 16 Am. St. Rep. 30; 94 Am. St. Rep. 252-258. It is generally necessary in an in- dictment to describe the offense in the substantial language of the stat- ute. Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544, 1854; Riley v. State, 43 Miss. 405, 1873. But it is a mistake to suppose that it is always sufficient to allege the offense in the words of the stat- ute. Where the offense consists of several acts, they should be alleged with the same particularity as at common law. State v. Blease, 1 Mc- Mull. L. 472, 1837. Where an indictment in the lan- guage of the statute embodies every element of the offense created by such statute with sufficient certain- ty, and gives the defendant clear notice of the offense with which he 300 is charged, and which he is called upon to defend against, it is suf- ficient. United States v. Britton, 107 U. S. 655, 27 L.-ed. 520, 2 Sup. Ct. Rep. 512, 1888. See Pounds v. United States, 171 U. S. 38, 43 L. ed. 63, 18 Sup. Ct. Rep. 729, 1898; Re Greene, 52 Fed. 111, 1892; United States v. Benson, 17 C. C. A. 299, 44 U. S. App. 219, 70 Fed. 596, 1895; United States v. Jewett, 84 Fed. 145, 1897; Re Bellah, 116 Fed. 75, 1902; United States v. Vigil, 7 N. M. 301, 34 Pac. 530, 1893. But when in the language of the statute there are no sufficient words to define any offense, and the offense, cannot be so stated in language of the statute, » more particular state- ment of the facts must be set out in order to render the indictment sufficient. See [Fed.] United States v Mills, 7 Pet. 188, 8 L. ed. 636, 1833; United States v. Cruikshank, 92 U. S. 542, 558, 28 L. ed. 588, 593, 1876; United States v. Carll, 105 U. 8. 611, 26 L. ed. 1135, 4 Am. Crim. Rep 246, 1882; United States v. Britton, 107 U. S. 655, 27 L. ed. 520, 2 Sup. Ct Rep. 512, 1883; Cannon v. United States, 116 U. S. 55, 29 L. ed. 561, 6 Sup. Ct. Rep. 278, 1885; Evans v. United States, 153 U. S. 584, 38 L. ed. 830, 14 Sup Ct. Rep. 934, 9 Am. Crim. Rep. 668, 1894; Keck v. United States, 172 U.S. 434, 437, 43 L. ed. 505, 507, 19 Sup. Ct. Rep. 254, 1899; United States v. Quinn, 8 Blatchf. 66, Fed. Cas. No. 16,- 110, 1870; Re Coleman, 15 Blatchf. 417, Fed. Cas. No. 2,980, 1879; Unit- ed States v. White, 2 Cin. Law Bull. 27, Fed. Cas. No. 16,674, 1877; Unit- ed States v. Pond, 2 Curt. C. C. 268, Fed. Cas. No. 16,067, 1855; United States v. Atkinson, 34 Fed. 317, 1888; United States v. Kelsey, 42 Fed. 887, 1890; United States v. Reynolds, 48 Fed 216, 1891; United States v. Burns, 54 Fed. 359, 1893; United States v. Potter, 56 Fed. 90, 1892: United States v. MacDonald, 65 Fed. 486, 1894; United States v. Williams, 76 Fed. 226, 1896; United States v. Brazeaux, 78 Fed. 465, 1897; Culp v. United States, 27 C. C. A. 295, 55 U 8. App. 42, 82 Fed. 991, 1897; Wright Ve hited States, 48 C. C. A. 45, 108 Fed. 805, 814, 1901; Milby v. United CRIMINAL LAW. [§ 230 States, 48 C.C A. 577, 109 Fed. 641, 1901; Terry v. United States, 56 C. C. A. 636, 120 Fed. 483, 19038; O’Hara v. United States, 64 C. C. A. 84, 129 Fed. 554, 1904; United States v. Howard, 182 Fed. 325, 334, 1904; Miller v. United States, 69 C. C. A. 356, 186 Fed. 582, 1905; United States v. Green, 136 Fed. 618, 643, 1905; Marcus v. United States, 2 Hayw. & H. 349, Fed. Cas. No. 9,062a, 1860; United States v. Lan- caster, 2 McLean, 433, Fed. Cas. No. 15,556, 1841; United States v. Pat- terson, 6 McLean, 467, Fed. Cas. No. 16,011, 1855; United States v. San- der, 6 McLean, 600, Fed. Cas. No. 16,219, 1855; United States v. O’Sullivan, 9 N. Y. Leg. Obs. 261, Fed. Cas. No. 15,974, 1851. [Ala.] Bryan v. State, 45 Ala. 86, 1871. [Ark.] State v. Graham, 38 Ark. 519, 4 Am. Crim Rep. 276, 1882; State v. Witt, 39 Ark. 216, 1882; Glass v. State, 45 Ark. 178, 1885; Seales v, State, 47 Ark. 476, 58 Am. Rep. 768, 1 S. W. 769, 1886. [Conn.] Whiting v. State, 14 Conn. 491, 36 Am. Dec. 499, 1842; Scovil v. Baldwin, 27 Conn. 316, 1858; State v. Nussenholtz, 76 Conn. 92, 55 Atl. 589, 1903. [Dak.] McCall v. United States, 1 Dak. 320, 46 N. W 608, 1876. [D. C.] Moses v. United States, 16 App. D. C. 431, 50 L.R.A. 532, 1900. [Ind.] Schmidt v. State, 78 Ind. 41, 1881; Johns v. State (Haughn v. State) 159 Ind. 416, 57 L.R.A, 789, 65 N. E. 287, 1902. [Kan.] State v. Armell, 8 Kan. 293, 1871. [Ky.] Com. v. Cook, 13 B. Mon. 149, 1852. [La.] State v. Bart- ley, 34 La. Ann 149, 1882. [Miss.] Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544, 1854; Herrington v. State, 54 Miss. 490, 494, 1877. [Mo.] State v. Hayward, 83 Mo. 318, 1884; State v. Bennett, 102 Mo. 356, 10 L.R.A. 717, 14S. W. 865, 1890; State v. Meysen- burg, 171 Mo. 46, 71 S. W. 229, 1902. [Mont.] Territory v. Carland, 6 Mont. 18, 9 Pac. 578, 1826 [N. H.] State vy. Goulding, 44 N. H. 287, 1862. [N. J.] State v. Stimson, 24 N. J. L. 25, 1853. [N. M.] Territory v. Sev. ailles, 1 N. M. 120, 1855. [N. Y.] People v. Taylor, 3 Denio, 93, 1846. [Tenn.] Daniel v. State, 3 Heisk. 257, 1871. [Tex.] Williams v. State, 12 § 230] Tex. App. 400, 1882; Huntsman v. State, 12 Tex. App. 634, 1882. {Utah] United States v. Cannon, 4 Utah, 146, 7 Pae. 369, 1885. [V7. Va.] State v Parkersburg Brewing Co. 53 W. Va. 594, 45 S. E. 924, 1903. [{Wis.] Bonneville v. State, 53 Wis. 680, 11 N. W. 427, 1882. Circumstances constituting offense as given in the statute must be set out. See [Ark.] State v. Graham, 38 Ark. 519, 4 Am. Crim. Rep. 276, 1882; Wood v. State, 47 Ark. 488, 1 S. W. 709, 1886. [Ind.] Sloan v. State, 42 Ind. 570, 1873. [Me.] State v. Casey, 45 Me. 435, 1858. [N. Y.] Wood v. People, 53 N. Y. 511, 1873; Phelps v. People, 72 N. Y. 334, 1878. [N. C.] State v. Rose, 90 N. C. 712, 1884, [S. C.] State v. Shuler, 19 S. C. 140, 1882. Exact language of statute need not be used; words of equivalent import, or even of a broader significance, will be sufficient. See [Ala.] State v. Bullock, 13 Ala. 413, 1848. [Ark.] Wood v. State, 47 Ark. 488, 1 S. W. 709, 1886. [Ind.] State v. Anderson, 103 Ind. 170, 2 N. E. 332, 1885; Riggs v. State, 104 Ind. 261, 3 N. E. 886, 6 Am. Crim. Rep. 394, 1885; Henning v. State, 106 Ind. 386, 55 Am. Rep. 756, 6 N. E. 803, 7 N. E. 4, 1885; Franklin v. State, 108 Ind 47, 8 N. E. 695, 1886. [Kan.] State v. Beverlin, 30. Kan. 611, 2 Pac. 630, 1883. [Ky.] Com. v. Turner, 8 Bush, 1, 1871. [Me.] State v. Robbins, 66 Me. 324, 1877. [Mass.] Com. v. Parker, 117 Mass. 112, 1875. [Miss.] Jones v. State, 51 Miss. 718, 24 Am. Rep. 658, 1875. [N. Y.] Tully v. People, 67 N. Y. 15, 1876. {N. C.] State v. Drake, 64 N. C. 589, 1870. [Ohio] Poage v. State, 3 Ohio St. 229, 1854. [Pa.] Com. v. Mouat, 14 Phila. 366, 1880. [Tex.] Jones vy. State, 12 Tex. App. 424, 1882. Intent must be alleged, when.— Indictment invalid unless it alleges malicious intent whenever such in- tent is an essential ingredient in the constitution of an offense created by statute, even though it is not so made by the express words of the statute. Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544, 1854. Yet it is held that in an indict- ment under a statute declaring cer- tain acts to be a crime when “done ATTEMPTS. 301 with intent to defraud,” it is suffi- cient to describe the offense in the words of the statute, without alleg- ing that the acts were done “fe- loniously.” [Fed.] United States v. Staats, 8 How. 41, 12 L. ed. 979, 1850. See Bannon v. United States, 156 U. S. 464, 466, 39 L. ed. 494, 496, 15 Sup. Ct. Rep. 467, 9 Am Crim. Rep. 328, 1895; United States v. Henry, 3 Ben. 29, Fed. Cas. No. 15,350, 1868; United States v. Nun- nemacher, 7 Biss. 139, Fed. Cas. No. 15,903, 1876; United States v. Bick- ford, 4 Blatchf. 339, Fed. Cas. No. 14,591, 1859; Re Coleman, 15 Blatchf. 417, Fed. Cas. No. 2,980, 1879; Unit- ed States v. Bayaud, 21 Blatchf. 295, 16 Fed. 376, 383, 1883; United States v. White, 2 Cin. Law Bull. 27, Fed. Cas. No. 16,674, 1877; United States v. Ulrici, 3 Dill, 548, Fed. Cas. No. 16,594, 1875; United States v. Cop- persmith, 4 Fed. 202, 1880; United States v. Corbin, 11 Fed. 240, 1882; United States v. Holtzhauer, 40 Fed. 79, 1889; United States v. Kelsey, 42 Fed. 882, 1890; United States v. Debs, 65 Fed. 211, 1895; United States v. Lake, 129 Fed. 501, 1904. [Ark.] State v. Eldridge, 12 Ark. 612, 1852. [Dak.] United States v. Spaulding, 3 Dak. 89, 138 N. W. 357, 538, 1882. [Ky.] Kaelin v. Com. 84 Ky. 561, 1 S. W. 594, 7 Am. Crim. Rep. 452, 1886. [Pa.] United States v. Armstrong, 5 Phila, 277, 1863. [R. I.] State v. Murphy, 17 R. I. 698, 16 L.R.A. 550, 24 Atl. 473, 1892. [Utah] People v. Colton, 2 Utah, 458, 1880. —“Felony” should be alleged in all those cases where the crime was a felony at common law, and the stat- ute has not provided what should constitute the offense, or prescribed a form of indictment. State v. Mur- phy, 17 R. I. 698, 16 L.R.A. 550, 24 Atl. 478, 1892. See [Eng.] Reg. v. Gray, 9 Cox, C, C. 417, Leigh & C. C. C. 365, 33 L. J. Mag. Cas. N. S. 78, 10 Jur. N. 8S. 160, 9 L. T. N. S. 733, 12 Week. Rep 350, 8 Eng. Rul. Cas. 110. [Ark.] Edwards v. State, 25 Ark. 444, 1869; Mott v. State, 29 Ark. 147, 1874. [Miss.] Bowler v. State, 41 Miss. 570, 1867. [Mo.] State v. Gilbert, 24 Mo. 380, 1857. [Pa.] Mears v. Com. 2 Grant, Cas, CRIMINAL LAW. [§ 230 302 did “attempt” feloniously to steal from the house of A,° or “to commit a rape” on A,* is good. But this does not touch the question at common law. § 231. Indictment must aver circumstances of attcmpts. At common law such facts must be set forth as show that the attempt is criminal in itself." Attempts may be merely in conception, or in preparation, with no causal connection be- tween the attempt and any particular crime; in which case, as has been seen, such attempts are not cognizable by the penal law. On the other hand, when an attempt stands in such con- nection with a projected, deliberate crime, that the crime, ac- cording to the usual and likely course of events, will follow from the attempt, then the attempt is an offense for which an in- dictment lies. Now it is a familiar-principle of criminal plead- ing, that when an act is only indictable under certain conditions, then these conditions must be stated in the indictment in order to show that the act is indictable. Nor does it make any dif- ference that the offense is made so by statute. Thus statutes make indictable revolts and obtaining goods by false pretenses; yet an indictment charging simply that the defendant “made a revolt,” or “obtained goods under false pretenses,’ would be scouted out of court.2 On the same reasoning, in an indictment for an attempt to commit a crime, it is essential to aver that the 385, 1858. [Tex.] Cain v. State, 18 1866. [Tex.] State v. West, 10 Tex. Tex. 387, 1857. In case of a highly penal statute, the indictment must state all the circumstances which constitute the offense as defined in the statute, so as to bring the defendant precisely within it. Anthony v. State, 13 Smedes & M. 268, 1850; Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544, 1854. New offense created by statute ful- ly setting forth elements and ingredi- ents of that offense may be charged in the language of the statute, or in any language substantially conform- ing thereto. See [Ala.] State v. Click, 2 Ala, 27, 1841; Skains v. State, 21 Ala. 218, 1852; Lodano v. State, 25 Ala. 64, 1854; Bryon v. State, 45 Ala. 86,1871. [Md.] Pierce v State, 63 Md. 592, 1885. [Tenn.] Harrison v. State, 2 Coldw. 232, 1865; Hall v. State, 3 Coldw. 125, 553, 1853. Sodomy, indictment for, must set out facts which will put accused up- on notice of the specific acts charged; it is not enough to charge the of- fense in the very words of the stat- ute. State v. Campbell, 29 Tex. 44, 94 Am. Dec 251, 1867. See infra, § 760, footnote 3. 3 Reg. v. Johnson, Leigh & C. C. C. 489, 34 L. J. Mag. Cas. N. S. 24, 10 Jur N. 8S. 1160, 11 L. T. N.S. 389, 13 Week. Rep. 101, 10 Cox, C. C. 13, 1862. 4See Lewis v. State, 35 Ala. 380, 1862. 1Cumulation of incidents in this. relation does not vitiate. State v. Hayes, 78 Mo. 307, 1883; People v. Thomas, 63 Cal. 482, 1883. 2 Wharton, Crim. Pl. & Pr. § 151, 8Ibid. §§ 151, 152. Infra, § 1494. § 231] ATTEMPTS. 303 defendant did some act which, directed by a particular intent, to be averred, would have apparently resulted, in the ordinary and likely course of things, in a particular crime.* 4As sustaining the conclusions of the text, see [Eng.] Rex v. Powles, 4 Car. & P. 571, 1831; Reg. v. Marsh, 1 Den. C. C. 505, Temple & M. 192, 19 L. J. Mag. Cas. N. S. 12, 3 Cox, C. C. 571. [Fed.] United States v. Ulrici, 3 Dill. 532, Fed. Cas. No. 16,594, 1875. [Ala.] Beasley v. State, 18 Ala. 535, 1850; Trexler v. State, 19 Ala. 21, 1851; Anthony v. State, 29 Ala. 27, 1856; Lewis v. State, 35 Ala. 380, 1862 (under a special statute): [Conn.] State v. Wilson, 30 Conn. 500, 1860. [IIl.] Thompson v. People, 96 Ill. 158, 1880. [Ind.] Kinningham v. State, 120 Ind. 322, 22 N. E, 318, 1890. [Mass.] Com. v. Flynn, 3 Cush. 529, 1849; Com. v. McLaughlin, 105 Mass. 460, 1870; Com. v. Shedd, 140 Mass. 451, 5 N. E. 254, 5 Am. Crim. Rep. 61, 1886. [Nev.] State v. Brannan, 3 Nev. 238, 1869; State v. Angelo, 18 Nev. 425, 4 Pac. 1080, 5 Am. Crim. Rep. 62, 1884. [N. C.] State v. Col- vin, 90 N. C. 717, 1882. [Pa.] Ran- dolph v. Com. 6 Serg. & R. 398, 1821. [Tex.] State v. Johnston, 11 Tex. 22, 1853. [Va.] Clark’s Case, 6 Gratt. 675, 1849. p Attempt to corrupt witness, in- dictment for, need not allege such witness had been sworn, recognized, or subpeenaed in such judicial pro- ceeding. Christman v. State, 18 Neb. 107, 24 N. W. 434, 6 Am. Crim. Rep. 175, 1885. See State v. Baller, 26 W. Va. 99, 53 Am. Rep. 66, 1885. Indictment for attempt must al- lege some act done by accused of such a nature as to constitute an attempt in the legal sense of that term. Com. v. Clark, 6 Gratt. 675, 1849; Hicks v. Com. 86 Va. 223, 19 Am. St. Rep. 891, 9 S. E. 1024, 1889. —To commit larceny averring merely that accused “attempted to commit larceny,” was held insuffi- cient in State v. Womack, 31 La. Ann. 635, 1879. —To commit robbery, alleging that accused put A “in fear of immediate injury,” instead of “in fear of im- mediate injury to his person,” held defective in State v. Smith, 119 Mo. 439, 24 8S. W. 1000, 1894. Question of statutory construc- tion.—The question, it should be re- membered, depends largely on the construction of the statute. In Mas- sachusetts, it is not necessary in an indictment for an attempt to commit a crime, within the Rev. Stat. chap. 133, § 12, that it should be directly charged that the act attempted was a crime punishable by law, provided it appear to be so from the fact alleged. In an indictment for an attempt to burn a building, it is not necessary to describe the combustible materials used for the purpose Com. v. Flynn, 3 Cush. 529, 1849. See Com. v. MeDonald, 5 Cush. 365, 1850; Com. v. Sherman, 105 Mass. 169, 1870. —Charging intent to steal from pocket.—An indictment has been sus- tained which charged that the de- fendant, with intent to steal the per- sonal property of a certain woman, the property “being in hcr pocket and on her person,” did “thrust, in- sert, put, and place his hand upon the dress, near and into the pocket, of the said woman, without her knowledge, and against her will,” etc. Com. v. Bonner, 97 Mass. 587, 1867. United States Supreme Court, in United States v. Simmons, 96 U. 8S. 360, 24 L. ed. 819, 1877, has held that in an indictment for soliciting or inciting to the commission of a crime, or for aiding or assisting in its commission, it is not necessary to state the particulars of the in- citement or solicitation, or of the aid or assistance. Harlan, J., citing Wharton, Crim. Law, 7th ed. § 292; United States v. Gooding, 12 Wheat. 460, 6 L. ed. 693, 1827; United States y. Ulrici, 3 Dill. 532, Fed. Cas. No. 16,594, 1875. See, to same effect, State v. Dent, 3 Gill & J. 8, 1830 In Pennsylvania, the same rule ex- ists in reference. to common-law in- dictments for attempts. Randolph v. Com. 6 Serg. & R. 398, 1821. In the same state, an indictment char- 304 § 232. Cumulation of facts not duplicity. CRIMINAL LAW. [§ 232 The cumu- lation of facts, therefore, to show the criminal character of the intent, is not duplicity. Thus, a Massachusetts indictment under Rev. Stat. 133, § 12, is not bad for duplicity, when, be- sides setting forth an “attempt” to set fire to a building, it avers a breaking and entering of the building. Hence the attempt may be alleged to be to commit more offenses than one.* III. Jurisprcrion. § 233. Attempts cognizable in place of consummation. The question of jurisdiction, ging that S A, on, etc., “in the night- time of the said day aforesaid, at, ete, did attempt to commit an of- fense prohibited by law, to wit, with force and arms, with an ax, etce., with a wicked intent, on the dwell- ing house of D H, etc., in the night- time, feloniously and burglariously did break and enter, and with the intent, with the said ax, to open and enter,” etc, and steal; “but said S H did then and there fail in the perpetration of said offense,” was held good as an indictment for an attempt to commit burglary at com- mon law. Hackett v. Com. 15 Pa. 95, 1850. But see Mears v. Com. 2 Grant, Cas. 385, 1863. In Virginia, an indictment simply averring that the defendant “did at- tempt feloniously to maim,” etc., C R, was held to be not sufficiently precise. Clark’s Case, 6 Gratt. 675, 1849. The indictment “should al- lege,” said Leigh, J., “some act done by the defendant, of such a nature as to constitute an attempt to com- mit the offense mentioned in the in- dictment.” See Ridenour v. State, 38 Ohio St. 272, 1882, cited infra, § 767. In England an indictment stated that the prisoner “did unlawfully attempt and endeavor fraudulently, falsely, and unlawfully to obtain from the Agricultural Cattle Insur- ance Company a large sum of money, to wit, the sum of £22 10s., with in- tent thereby then and there to cheat and defraud the said company,” etc. It was held: 1st. That the nature of the attempt was not sufficiently set when an attempt is pursued forth. 2d. That the indictment did not contain facts amounting to a statement of a misdemeanor, as the money was not laid to be the prop- erty of anyone. Reg. v_ Marsh, 1 Den. C. C. 505, Temple & M. 192, 19 L. J. Mag. Cas. N. 8. 12, 3 Cox, C C. 571, 1848. See also Rex v. Cart- wright, Russ. & R. C. C. 106, 1810. What must be charged in indict- ment.—It is enough in England to charge that the defendant, “the goods and chattels of C D, in the dwelling house of said C D, situate in the borough of B, did attempt felonious- ly to steal, take, and carry away.” Reg. v. Johnson, Leigh & C. C. C. 489, 34 L. J. Mag. Cas. N. S. 24, 10 Jur. N. S. 1160, 11 L. T. N.S. 389, 18 Week. Rep. 101, 10 Cox, C. C. 18, 1862 See Reg. v. Bullock, Dears. C. C. 653, 25 L. J. Mag. Cas. N. S. 92, 1855; Reg. v. Marsh, 1 Den. C. C. 505, 1848, 3 Cox, C. C. 570, Temple & M. 192, 19 L. J. Mag. Cas N.S. 12. In New York and North Carolina. People v. Bush, 4 Hill, 138, 1843; State v. Utley, 82 N. C. 556, 1883 In Missouri. State v. Hughes, 76 Mo. 323, 1882. Contra: State v. Wilson, 30 Conn. 500, 1861; Clark’s Case, 6 Gratt. 675, 1849. In State v. Womack, 31 La. Ann. 635, 1879, it was held not enough to aver that the defendant “attempt- ed” to commit a larceny. 1Com. v. Harney, 10 Met. 422, 1845. 2 Ibid.; Rex v. Fuller, 1 Bosw. & P. § 234) ATTEMPTS. 305 through two or more distinct sovereignties, is elsewhere dis- cussed.’ It is clear that such attempt is cognizable in the place where, if not interrupted, it would have been executed;* and from the very nature of things, it must be cognizable in the place where the preliminary overt acts constituting the attempt are committed.® IV. Evipvence. § 234. Intent to be inferred from facts. As in consum- mated crimes, the intent which is here essential may be in- ferred by the jury from facts." Thus, when an indictment al- leges that a party attempted to set fire to a dwelling house, with intent to burn it, by attempting to set fire to another building, the jury are authorized to infer the alleged intent from the evi- dence of the attempt to set fire to the other building.? It has been ruled, however, where a prisoner burned a hole in the guardhouse where he was confined,® in order to escape and with no intent to consume or generally injure the building, that this ‘was not an attempt to burn the house.* And it is settled that there can not be a conviction of an attempt to murder, unless an intent to kill be specifically shown.® 180; State v. Graham, 51 Iowa, 72, 50 N. W 285, 1879. 1See infra, §§ 334, 335. 2 Reg. v. Collins, Leigh & C. C. C. 471, 9 Cox, C. C. 497, 33 L. J. Mag. ‘Cas, N. S. 177, 10 Jur. N. S. 686, 10 L. T. N. S. 581, 12 Week. Rep. 886, 1864, 3 Griffin v. People, 26 Ga. 493, 1860. 1See supra § 215. [Eng.] Rex v. Howlett, 7 Car. & P. 274, 1836; Reg. v. Jones, 69 Car. & P. 258, 1840. {[Mich.] People v. Scott, 6 Mich. 287, 1859. [Tenn.] Rafferty v. State, 91 ‘Tenn. 655, 16 S. W. 728, 1891. [Va.] Bell v. Com. 88 Va. 365, 13 S. E. 742, 1892. 2Com. v. Harney, 10 Met. 422, 1845. 3Jenkins v. State, 53 Ga. 33, 21 Am. Rep. 255, 1874. In Irish court for Crown cases re- ‘served, a similar question was decid- ed in the same way, in Reg. v. Faulk- ner, Ir. Rep. 11 C. L. 18, 1877. See Crim. L. Vol. I.—20. also Jesse v. State, 28 Miss. 100, 1854; Com. v. Posey, 4 Call (Va) 109, 2 Am. Dec. 560, 1787; Stevens v. Com. 4 Leigh, 683, 1834. 4But see Luke v. State, 49 Ala. 30, 20 Am. Rep. 269, 1873, where a contrary doctrine was held under ex- actly similar circumstances. 5See [Ala.] State v. Abram, 10 Ala. 928, 1847; Moore v. State, 18 Ala. 533, 1851; Seitz v. State, 23 Ala, 42, 1853; Ogletree v. State, 28 Ala. 693, 1856; Morgan v. State, 33 Ala. 413, 1859; Simpson v. State, 59 Ala. 1,31 Am. Rep. 1, 1878. [Me.] State v. Neal, 37 Me. 468, 1854. [Miss.] Jones v. State, 11 Smedes & M. 315, 1848; Morman v. State, 24 Miss. 54, 1852; Bareus v. State, 49 Miss. 17, 19 Am. Rep. 1, 1 Am. Crim. Rep. 249, 1873; Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392, 3 Am. Crim. Rep. 6, 1877. [Mo.] State v. Stewart, 29 Mo. 419, 1859. [N. J.] State v. Cooper, 18 N. J. L. 361, 25 CRIMINAL LAW. [§ 234 306 Whether, when the intention is to hurt B, and the hurt falls on C, the defendant is indictable for an attempt to hurt C, has been already incidentally noticed.* But whatever may be said on this difficult question, we may regard it as settled that when the indictment avers an attempt to do a particular act, there is a fatal variance if the act proved does not logically fall within the range of the act laid.” § 235. Adaptation makes a prima facie case. If the in- strument by which an attempt is effected is apparently adapted to the end (e. g., a gun to shooting), this is a sufficient prima facie case. The defendant must prove that the gun was not loaded and known not to be so.? V. Principats anp ACCESSORIES, § 236. All confederates are principals. All confederates in the attempt, whether present or absent at the overt acts, are responsible as principals, when the attempt is a misdemean- or.? Hence an averment that three joint defendants, in an indict- Am. Dec. 490, 1833. [N. Y.] Holly- wood v. People, 2 Abb. App. Dec. 376, 3 Keyes, 55, 1863. [N. C.] State v. Benton, 19 N. C. (2 Dev. & B. L.) 196, 1836; State v. Fulkerson, 61 N. C. (Phil. L.) 233, 1867. [Tex.] Garnet v. State, 1 Tex. App. 605, 28 Am, Rep. 425, 1877; Wilson v. State, 4 Tex. App. 637, 1879. [Va.] Read v. Com 22 Gratt. 924, 1872. See, also, infra, § 889; and note in 19 Am. Rep. 2. Specific intent—This point is further illustrated under the statutes making specific intents necessary to murder in the first degree, infra § 510. Assault to commit involuntary manslaughter.—There is no such of- fence as assault with intent to com- mit involuntary manslaughter. Ste- vens v. State, 91 Tenn. 726, 20 S. W. 423, 1894 6 Supra, §§ 140-157, on indictment for assault with intent to murder. Wound in knee—Presumption.— Where the evidence showed a wound in the knee, there is no presumption that defendant aimed at the knee, so as to reduce the grade of the offense. State v. Postal, 83 Iowa, 460, 50 N. W. 207, 1891. Infra, § 845. 7[Eng.] Reg. v. Sullivan, Car. & M. 209, 1841; Rex v. Mogg, 4 Car. & P. 364, 1880; R. v. Kelly, 1 Craw. & D. (Ir.) 186, 1841 [Ala.] Ogle- tree v.° State, 28 Ala. 693, 1856. [Cal.] People v. Woody, 48 Cal. 80, 1874. [N. C.] State v. Boyden, 35 N_ C. (18 Ired. L.) 505, 1853. [N. D.} State v. Fallon, 2 N. D. 510, 52 N. W. 318, 1892. 1 Caldwell v. State, 5 Tex. 18, 1849. Supra, § 221. Dangerous weapon, jury to deter- mine.—It is for the jury to deter- mine whether the instrument used (e. g., a stone) was a dangerous weapon under the circumstances in which it was used. Regan v. State, 46 Wis. 256, 50 N. W. 287, 1879. 1Reg. v. Wyatt, 39 L. J. . Cas, N. 8. 83, L. R.1C. C. 221, 21 L. T. N. S. 678, 18 Week. Rep. 356, 11 Cox, C. C. 471, 1869; Uhl v. Com. 6 Gratt. 706, 1849. Infra, § 261. § 237] ATTEMPTS. 307 ment for an attempt at larceny, “ put their hands” into the prosecutor’s pocket, may be sustained by evidence that while all participated in the act, only one put his hands in the pocket.’ If the attempt is a felony, codefendants are responsible accord- ing to the laws of principal and accessory.® VI. Verpicr. § 237. At Common law no verdict of an attempt on an indictment for consummated crime. The topic of verdict, in cases where an assault or attempt is proved on an indictment for a greater offense (e. g., felony), is elsewhere noticed.’ It may now be especially stated that while by the old common law there can be technically no conviction of an attempt on a count for felony, this power is given to juries in many juridictions by statute? But unless the attempt be averred in the indict- ment, there can be no conviction of the attempt on statutes which simply give power to convict of minor offenses inclosed in major.® It has been held in England that under an indictment charg- ing H with rape, and U with aiding and abetting, H could be convicted, under the stat. 32 & 33 Vict. chap. 29, of attempt- ing to commit the rape, and U of aiding him in the attempt.* Whether an attempt merges in a consummated crime is here- after considered.§ 2Com. v. Fortune, 105 Mass. 592, 1870. 3 See Reg. v. Hapgood, L. R. 1 C. C. 221, 39 L. J. Mag. Cas. N 8. 83, 21 L. T. N. S. 678, 18 Week. Rep. 356, 11 Cox, ©. C 471, 1869. 1 Wharton, Crim. Pl. & Pr. § 261. 2 Wharton, Crim. Pl. & Ev. §§ 249, 250, 465-467. So in N. Y. by Penal Code of 1882, § 36. See [Eng.] Reg. v. Bird, 2 Den. C. C. 94, Temple & M. 487, 20 L. J. Mag. Cas. N. 8. 70,15 Jur 198, 5 Cox, C. C. 20, 1850; Reg. v. Reid, 2 Den. C. C. 89, Temple & M. 481, 20 L. J. Mag. Cas. N. 8S. 67, 15 Jur 181, 5 Cox, C. C. 104, 1850. [Ala.] Wolf v. State, 41 Ala, 412, 1868. [Conn.] State v. Wilson, 80 Conn. 500, 1861. [Ga.] Hill v. State, 53 Ga. 125, 1874 [Mo.] State v, Frank, 108 Mo. 120, 15 S. W. 330, 1891. 8 Wharton, Crim. Pl. & Pr. §§ 249, 250; Turner v. Dickerman, 88 Mich. 859, 50 N. W 310, 1891. 4 Reg. v. Hapgood, L. R. 1 C. C. 221, 89 L. J. Mag. Cas. N. S. 83, 21 L. T. N. S. 678, 18 Week. Rep. 356, 11 Cox, C. C. 471, 1869. 5 Infra, §§ 840, 1610. Merger.—In New York by the Pe- nal Code of 1882, there is no acquit- tal from merger of attempt, § 685. 308 CRIMINAL LAW. [§ 238 VII. PunisumMent or ATTEMrT. § 238. Punishment should be less than that of con- summated crime. For the reasons heretofore given, the pun- ishment of an attempt should be less than that of the consum- mated crime. The attempt involves neither the duration of pre- meditation nor the obduracy of purpose, which belong to the crime when complete. And the policy of the law is, by assign- ing more lenient punishment to the incomplete offense, to arrest offenses in the process of completion. This view, so long ne- glected in English law, and which English and American judges, acting on what is called the preventive policy, even now some- times lose sight of,’ is essential to a sound ethical jurisprudence.* 1Supra, § 10. 2See Geib, ut supra, § 99. CHAPTER IX. ACCESSORYSHIP, AGENCY, MISPRISION. I, Staturory CHANGES. § 239. Common law recently modified by statute. II. PRINCIPALS. § 240. § 241, § 242. § 243, § 244, Principal in first degree is actual perpetrator. Presence not necessary when causal connection is immediate, é. g., when agent is irresponsible. Accessory before the fact cannot be convicted as principal. Nonresident party may be liable for agent’s act. Wife not ordinarily coprincipal with husband. III. Principats IN THE SEcoND DEGREE. § 245. § 246. § 247. § 248, § 249, § 250. § 251. § 252. § 253, § 254. § 255. 8 256. § 257. § 258. § 259. § 260. § 261. § 262. Principals in the second degree are those present actively aiding and encouraging. Presence does not involve complicity. Capacity to execute not always essential. Confederacy must be real. Mere sympathy not confederacy. If principal is irresponsible, indictment should not be for aiding and abetting. Confederacy with constructive presence may constitute one a principal. But act must result from confederacy. In duels all are principals. Persons abetting suicide are principals in murder. Persons executing parts of crime separately are principals. Persons outside keeping watch are principals. An abettor must be near enough to give assistance. Persons confederating for wrongful purpose are chargeable with incidental felony. Distinction between two degrees essential only when punish- ment varies. Conviction of principal in the first degree not a condition precedent to trial of principal in second degree. In misdemeanors all are principals. And so as to treason at common law. IV. Accessories BEFORE THE FAct. § 263. § 264, § 265. Commanding and counseling constitutes accessoryship before the fact. Several instigators may be combined. Must be causal connection. 309 310 CRIMINAL LAW. {§ 239 § 266. Silent acquiescence is not counseling. § 267. And countermanded advice does not constitute offense. § 268. Accessories not liable for collateral crimes. § 269. Relative guilt of accessory and principal. § 270. Assistance must be rendered knowingly and really. § 271. Detectives not accessories. § 272. May be accessory before the fact to manslaughter. § 273. Accessory before the fact may not be originator. § 274. Quantity of aid immaterial. § 275. Conditions of time immaterial. § 276. Grade of guilt not necessarily the same. § 277. Conviction of principal no longer a prerequisite. § 278. Indictment must particularize offense. § 279. Verdict must specify grade. § 280. Attempt. V. ACCESSORIES AFTER THE Fact. § 281. Accessory after the fact is one who subsequently assists or comforts the felon. § 282. Knowledge of principal’s guilt essential. § 283. Wife is not liable. § 284. Conviction of principal prima facie evidence of his guilt. § 285. Indictment must be specific. VI. LiaBiziry of PRINCIPAL FoR ACT oF AGENT. § 286. Commanding principal liable for agent’s act. § 287. And so where agent acts in line of principal’s business. § 288. Nonresident principal intraterritorially liable. VII. MISpPRISION. § 289. Misprision of felon is concealment of felon. I. Srarurory Cuaneszs. § 239. Common law recently modified by statute. By the English common law, whenever there is a statutory dis- tinction of punishment between principals in the first and prin- cipals in the second degree, a party charged as principal in the first degree cannot be convicted on evidence showing him to be principal in the second degree. By the same common law, there can be no conviction of an accessory on an indictment charging him as principal. The obstructions of justice caused by these subtleties have long been deplored; and while in several of the states of the American Union it is already provided by statute that accessories before the fact are to be proceeded against as principals,’ in other states, and in England, the change will 1Search note 12 Cye. 183; 1 Enc. col. 685, §§ 71-95; 6 Decen. Dig. Pl. & Pr. 66-72; 14 Century Dig. p. 194, §§ 59-77; Am. Dig. title § 240] probably not be long delayed. ACCESSORYSHIP, AGENCY, MISPRISION. 311 So far as concerns principals in the first and principals in the second degree, the distinction is now almost universally obliterated.” In the present chapter, however, in view of those jurisdictions in which the common law in this relation remains, the topic will be discussed as at com- mon law. II. Princrpats. § 240. Principal in first degree is actual perpetrator. A principal in the first degree, at common law, is one who is the actual perpetrator of the criminal act.” “Criminal Law,” §§ 59-77; 5 Am. Crim. Rep. 6, 10, 20, 488, 477, 552; 7 Am. Crim. Rep. 22, 568; 8 Am. Crim. Rep. 19; 10 Am. Crim. Rep. 419; 11 Am. Crim. Rep. 13, 17, 19, 20; 14 Am. Crim. Rep. 115, 507; notes in 43 Am. Dec. 425; 45 Am. Dec. 473; 51 Am. Dec. 373-376; 80 Am. Dec. 97; 100 Am. Dee. 109; 13 Am. Rep. 177; 98 Am. St. Rep. 158; 1 LRA. 211; 8 L.R.A. 297; 13 LRA. 195; 15 LRA. 516; 28 LRB.A. 319; 36 LRA. 202; 2 L.R.A.(N.S.) 897; 6 L.R.A.(N.S.) 1154; 23 L.R.A.(N.S.) 2738; 24 L.R.A.(N.S.) 625. Accessories before the fact.—In Alabama, see Wicks v. State, 44 Ala. 398, 1870. —In Kansas, see State v. Mosley, 31 Kan. 355, 2 Pac. 782, 4 Am. Crim. Rep. 529, 1883. —In New York Penal Code of 1882, § 30, accessories before the fact are made principals, while ac- cessories after the fact include, in addition to the common-law defi- nition, one who harbors an offend- er, having reasonable ground to believe such offender is liable to arrest, or has been arrested, is in- dicted or convicted, or has com- mitted a felony. 2 Distinction between accessories and principals.—According to Sir J. F, Stephen, “there was (by the old law) no distinction between prin- cipals and accessories in treason and misdemeanor, and the distinc- tion in felony made little difference, because all alike, principals and ac- cessories, were felons, and as such punishable with death.” Crim. Law, 231. When the distinction between ac- ° cessories before the fact and prin- cipals has been abolished, an in- dictment is not bad which charges an accessory as principal. State v. Stacy, 103 Mo. 11, 15 8. W. 147, 1891. Statute making all persons prin- cipals who are concerned in the commission of an offense, whether such an offense be a felony or mere- ly a misdemeanor, and whether committed by direct act or by aid- ing therein, though not present, changes the common law by abol- ishing all distinctions between ac- cessories before the fact and prin- cipals in the first and second de- 2 History gree, and makes all principals. Sturgis v. State, 2 Okla. Crim. Rep. 362, 102 Pac. 57, 1907. Statute providing that every person who shall aid, assist, abet, or procure another to commit any crime, shall be proceeded against as a principal, or as an accessory before the fact, according to cir- cumstances, does not change the common law by abolishing the dis- tinction between principals in the second degree and accessories be- fore the fact, and constitutes all persons who aid and abet, whether present or absent, accessories be- fore the fact; all that such statute does is simply to provide that such offenders shall be proceeded against as principals or as accessories be- fore the fact. State v. Shapiro, 29 R. I. 133, 69 Atl. 340, 1908. 11 Hale, P. C. 238, 615; Ste- 312 CRIMINAL LAW. [§ 241 § 241. Presence not necessary when causal connec- tion is immediate, e. g., when agent is irresponsible. To constitute, however, this grade of offense, it is not necessary that the party should have committed the act with his own hands, or be actually present when the offense is consummated ; * for if one lay poison purposely for another, who takes it and is killed, he who lays the poison, though absent when it is taken, is a principal in the first degree.” Such, also, is the case with a party who maliciously turns out a wild beast intending to kill anyone whom the animal may attack.* A party, also, who acts through the medium of an innocent * or insane medium,’ or a slave,® is guilty, though absent, as principal in the first degree; 7 while he would be guilty only as accessory before the fact at common law, were the agent a responsible and conscious con- federate.* Thus, in Sir William Courtney’s Case, Lord Den- phen’s Digest Crim. Law, 5th ed. art. 36; State v. Bailey, 63 W. Va. 668, 60 S. E. 785, 1908; Rountree v. State, 10 Tex. App. 110, 1880; Cook v. State, 14 Tex. App. 96, 1883. Person performing a criminal act with felonious intent, or knowing it to be criminal, is a principal in the first degree. State v. Bailey, 63 W. Va. 668, 60 S. E. 785, 1908. As to persons instigating crime being coprincipals, see infra, § 285. 1See [Ark.] Smith v. State, 37 Ark. 274, 1880. [Ga.] Pinkard v. State, 30 Ga. 757, 1860. [Tex.] Berry v. State, 4 Tex. App. 492, 1878; Sharp v. State, 6 Tex. App. 650, 1879. See also infra, § 257. 2Vaux’s Case, 4 Coke, 44b; Ste- phen’s Digest Crim. Law, 5th ed. art. 36; Fost. C. L. 349. See [Eng.] Rex v. Harley, 4 Car. & P. 369, 1830; Reg. v. Kelly, 2 Car. & K. 379, 1847; Holloway v. Reg. 2 Den. C. C. 287, 17 Q. B. 319, 15 Jur. 852, 1870. [Ga.] Pinkard v. State, 30 Ga. 757, 1860. [Mo.] Green v. State, 13 Mo. 382, 1850. ty al People v. Bush, 4 Hill, 183, 8 Fost. ©. L. 349; 1 Hale, P. C. 514. 4Supra, § 203. [Eng.] Reg. v. Mazeau, 9 Car. & P. 676, 1840; Reg. vy. Michael, 9 Car. & P. 356, 2 Moody, C. C. 120, 1840; Reg. v. Clifford, 2 Car. & K. 202, 1816; Reg. v. Bleasdale, 2 Car. & K. 765, 4 Mor. Min. Rep. 177, 1848. [Mass.] Com. v. Hill, 11 Mass. 136, 1814; [N. Y.] Adams v. People, 1 N. Y. 173, 1848; [N. C.] State v. Fulkerson, 61 N. C. (Phil. L.) 233, 1867. Person causing commission of crime through innocent agent, with felonious intent, is a principal, though not actually or construc- tively present. [D. C.] Maxey v. United States, 30 App. D. C. 63, 1907. [Tex.] Farris v. State, 55 Tex. Crim. Rep. 481, 131 Am. St. Rep. 824, 117 S. W. 798, 1909. [W. Va.] State v. Bailey, 63 W. Va. 668, 60 S. E. 785, 1908. And an exception to the rules applicable to principals and acces- sories arises ex necessitate legis. State v. Bailey, 63 W. Va. 668, 60 S. E. 785, 1908. 51 Hale, P. C. 19; 4 Bl Com. 23; Rex v. Giles, 1 Moody, C. C. 166; Car. Crim. Law, 191, 1835; Reg. v. Tyler, 8 Car, & P. 616, 1838; Blackburn v. State, 23 Ohio St. 146, 1872. 6 Berry v. State, 10 Ga, 511, 185L 7Supra, § 203. 8Infra, § 325. § 242] ACCESSORYSHIP, AGENCY, MISPRISION. 313 man, Ch. J., charged the jury: “You will say whether you find that Courtney was a dangerous and mischievous person ; that these two prisoners knew he was so, and yet kept with him, aiding and abetting him by their presence, and conferring in his acts; and if you do, you will find them guilty, for they are then liable as principals for what was done by his hand.”® If, therefore, a child under the age of discretion,’® or any other person excused from the responsibility of his actions by defect of understanding, ignorance of the fact, or other cause, be in- cited to the commission of murder or any other crime, the in- citer, though absent when the act was committed, is ex neces- sitate liable for the act of his agent, and a principal in the first degree.” So, if A, by letter, desires B, an innocent agent, to write the name of “W 8” to a receipt on a postoffice order, and the inno- cent agent do it, believing that he is authorized so to do, A is a principal in the forgery ; and it makes no difference that by the letter A says to B that he is “at liberty” to sign the name of W S, and does not in express words direct him to do so.” But if the agent be aware of the consequences of his act, he is a prin- cipal in the first degree, and the employer, if he be absent when the act is committed, is an accessory before the fact.” § 242. Accessory before the fact cannot be convicted as principal. At common law, one indicted as principal can- 91 Hawk. P. C. chap. 1, § 7; R. 202, 1845. See also R. v. Palmer, v. Mears, 1 Boston Law Rep. 205. 10 [Cal.] People v. Miller, 66 Cal. 468, 6 Pac. 99, 1885. burn v. State, 23 Ohio St. 146, 1872. [Vt.] State v. Learnard, 41 Vt. 585, 1869. 11 Fost. C. L. 340; 1 East, P. C. 118; 1 Hawk. P. C. chap. 13, § 7. [Eng.] Rex v. Palmer, 1 Russ, & R. C. C. 72, 1 Bos. & P. N. R. 96, 2 Leach, C. L. 978, 1804; Reg. v. Giles, 1 Moody, C. C. 166; Car. Crim. Law, 191, 1835; Reg. v. Mi- chael, 2 Moody, C. C. 120, 9 Car. & P. 356, 1840; Reg. v. Manley, 1 Cox, C. ©. 104, 1844. [Mass.] Com. v. Hill, 11 Mass. 186, 1814. [Tenn.] Collins v. State, 3 ’Heisk, 14, 1870. See also supra, § 203. 12Reg. v. Clifford, 2 Car. & K. 1 Russell, Crimes, 160, 1804; Steph- en’s Digest Crim. Law, 5th ed. art. [Ohio] Black- 37. 13 Rex. v. Soares, Russ. & R. C C. 25, 2 East, P. C. 974, 1802; Rex v. Stewart, Russ. & R. C. C. 363, 1818; Wixson_v. People, 5 Park. Crim. Rep. 119, 1860; or, if he be present, a principal in the second degree. Fost. C. L. 349. See Reg. v. Manley, 1 Cox, C. C. 104, 1844; Montague v. State, 17 Fla. 662, 1880. One who assists in the commis- sion of a crime is not relieved be- cause his acts were done under threats, unless the danger be to life of member and be immediate. Burns v. State, 89 Ga. 527, 15 S. E. 748, 1892. 314 CRIMINAL LAW. [§ 242 not be convicted on proof showing him to be only an accessory before the fact,! nor the converse.” § 243. Nonresident party may be liable for agent’s act. A nonresident party, though at the time an inhabitant of a foreign state, may be at common law responsible as prin- cipal for his agent’s criminal acts not amounting to felonies, in a particular jurisdiction,’ while as to felonies he would be an accessory vefore the fact. And a party who, 30 miles off, and in another county, signals to another, by fire on a mountain, when to commit a highway robbery, is principal in the robbery.” § 244. Wife not ordinarily coprincipal with husband. Tf a husband and wife commit a murder jointly, they may be regarded, so it has been held, as coprincipals, on the ground that the doctrine of presumed coercion does not apply to murder.’ And so a wife may be convicted, it is said, as an accessory be- fore the fact to the husband.? But the weight of opinion is to require proof of independent consent on part of the wife.* III. Princrpars in THE Second Dzcree. § 245. Principals in the second degree are those present actively aiding and encouraging. Principals in the second degree are those who are present aiding and abetting the com- mission of the offense. As has been elsewhere shown, the assistant (principal? in the second degree) is distinguished from the principal in the first degree in this, that the latter di- rects the unlawful act, the former assists it; the action of the 1[Eng.] Reg. v. Fallon, 9 Cox, C. lInfra, §§ 323-325. C. 242, Leigh & C. C. C. 217, 32 L. 2State v. Hamilton, 13 Nev. 386, J. Mag. Cas. N. 8. 66, 8 Jur. N. S. 1878. Infra, § 256. 1217, 7 L. T. N. 8. 471, 11 Week. 1Reg. v. Manning, 2 Car. & K. Rep. 74, 1862. [Ala.] Hughes v. 887, 1849. State, 12 Ala. 458, 1848. [Miss.] 2 Ibid. Josephine v. State, 39 Miss. 613, 8 Supra, §§ 96 et seq. See Reg. 1866. [Neb.] Walrath y. State, 8 v. Smith, 8 Cox, C. C. 27, 1858; Neb. 80, 1878. [N. J] State v. Reg. v. Wardroper, 8 Cox, C. C. 284, Wyckoff, 31 N. J. L. 65, 1866. Bell, C. C. 249, 29 L. J. Mag. Cas. See for other cases infra, §§ 278— N. S. 116, 6 Jur. N. S, 282, 1 L. 285. T. N. S. 416, 8 Week. Rep. 217, 2Rex v. Gordon, 1 Leach, C. L. 1860. 515, 1 East, P. C. 352. [Ga.] Hate- 1Com. v. Lowrey, 158 Mass. 18, ly v. State, 15 Ga. 346, 1854. [N. 32 S, E. 940, 1893. H.] State v. Larkin, 49 N. H. 39, 29 Cent. L. J. 205. 1868. [N. C.] State v. Dewer, 65 N. C. 572, 1871. § 245] ACCESSORYSHIP, AGENCY, MISPRISION, 315 latter is primary, that of the former is subsidiary. Hence the principal in the first degree is spoken of by the old writers as causa principalis, while the principal in the second degree is spoken of as causa secundaria, or secondary cause. The prin- cipal in the second degree, or assistant, is distinguished from the accessory before the fact, not merely because the former is pres- ent, and the latter absent, at the commission of the offense, but because the accessory before the fact, or instigator, acts delib- erately; and so with premeditation, though it may be not so cool and long, as does the principal in the first degree; while the idea of such extended premeditation is not necessary to the principal in the second degree, or assistant, who is not sup- posed, as is the instigator, to exercise an organizing influence on the principal in the first degree, and who may be employed or induced to assist the latter without any previous conception of what the criminal act is intended to be. But unless the distinc- tion is imposed by statute, it has ceased to be of practical inter- est, Since principals in the second degree may be convicted on in- dictments charging them in the first degree.* 3Infra, § 259. “Abet” is synonymous with “aid” and “assist.” State v. Flynn, 76 N. J. L. 473, 72 Atl. 296, 1909. Includes knowledge of wrongful purpose in the act of the perpetra- tion and implies counseling, en- couragement, or assistance. People v. Lewis, 9 Cal. App. 279, 98 Pac. 1078, 1908; People v. Bond, 13 Cal. App. 175, 109 Pac. 150, 1910. Person involved in commission of crime not falling in class described jin statute, under the rules of the common law, may be charged with aiding and abetting. United States v. Williams, 159 Fed. 310, 1908. —Persons present, assisting one who personally commits a felony, are “ajiders” and “abettors,”’ and may be prosecuted as_ principals. Vogel v. State, 188 Wis. 315, 119 N. W. 190, 1909. Presence, with instigation or en- couragement toward the commis- sior of a crime, although without ‘actual aid or personal assistance therein, may constitute “abetting.” Persons passing instruments to a prisoner for the purpose of effect- ing an escape are jointly guilty of a single offense, notwithstanding the fact that the instruments were passed in to the prisoner at differ- ent times, by different parties, but in the presence of each other. State v. Ballew, 83 S. C. 82, 63 S. E. 668, 64 S. E. 1019, 18 A. & E. Ann. Cas. 569, 1909. “Accomplice” is one who know- ingly and voluntarily, with the like malicious intent of the offender, unites with him in the commission of a crime. [Ky.] Levering v. Com. 132 Ky. 666, 136 Am. St. Rep. 192, 117 S. W. 253, 19 A. & E. Ann. Cas. 140, 1909. [Mo.] State v. Lee, 228 Mo. 480, 128 S. W. 987, 1910. [Mont.] State v. District Ct. 37 Mont. 191, 95 Pac. 593, 15 A. & E. Ann. Cas. 743, 1908. Being present, giving aid and assistance, or advising, or watch- ing to see if anyone comes to in- terfere with the perpetration of a criminal act, makes one an accom- plice. People v. O’Brien, 125 App. Div. 254, 109 N. Y. Supp. 267, 1908. Includes all who participate in the commission of a crime, either 316 § 246. Presence does not involve complicity. CRIMINAL LAW. [§ 246 Merely witnessing a crime, without intervention, does not make a per- as principal, aider, and abettor, or as accessory before the fact. Lev- ering v. Com. 132 Ky. 666, 136 Am. St. Rep. 192, 117 S. W. 253, 19 A. & E. Ann. Cas. 140, 1909. One may become an accomplice by being present and joining in the criminal act, or by aiding or abet- ting another in its commission, or by advising or encouraging its com- mission. State v. District Ct. 37 Mont. 191, 95 Pac. 598, 15 A. & E. Ann. Cas, 748, 1908. One charged as, cannot be con- victed without he is shown to have advised or urged the parties, agreed to, or in some way aided them in, the commission of the crime. Hall v. State, 52 Tex. Crim. Rep. 250, 106 S. W. 379, 1907. Under Texas statute, in order to render one an accomplice to a criminal act, he must be in some way connected with the crime charged. Warren v. State, 57 Tex. Crim. Rep. 518, 123 S. W. 1115, 1910. —Advice given in advance, urging the commission of the crime, fur- nishing means for its accomplish- ment. constitutes a person an “ac- complice.” O’Quinn v. State, 55 Tex. Crim. Rep. 18, 115 S. W. 39, 1908. —Buyer of intoxicating liquors in a local option county is not an ac- complice with the seller, under a statute providing that a person buying intoxicating liquor from one who sels in violation of law is not an “accomplice.” Fox v. State, 53 Tex. Crim. Rep. 150, 109 S. W. 70, 1908. Keeper of disorderly house enter- ing into a criminal agreement with public officer, to pay stipulated sums of money at given times in consideration of immunity from disturbance in carrying on his busi- ness, and in selling intoxicating li- quors without a license, is an ac- complice of the officer receiving the money. State v. Routzahn, 81 Neb. 133, 129 Am. St. Rep. 675, 115 N. W. 759, 1908. —Knowledge and voluntary ac- tion on the part of the person ac- cused are essential to make him an accomplice. State ex rel. Webb v. District Ct. 37 Mont. 191, 95 Pac. 5938, 15 A. & E. Ann. Cas. 743, 1908. Person forced to join in the crim- inal act, through fear of danger to life or limb, is not an accomplice. Henderson v. State, 5 Ga. App. 495,. 63 S. E. 535, 1909. —A “principal” must be present and aid in the commission of the offense, either by an overt act or by keeping watch. Entrance into: a conspiracy to commit theft with others, in and of itself, does not. constitute a person an accomplice. O’Quinn v. State, 55 Tex. Crim. Rep. 18, 115 S. W. 39, 1908. Where two persons agree to com- mit an offense together, but do not act together, and one actually commits the agreed offense. such acting party is a principal, and the other, while not present at the time nor in the any way aiding, is an accomplice. Ibid. —Test for determining whether person accused is an accomplice is whether he could be convicted as a principal, aider, or abettor, or an accessory before the fact. Lever- ing v. Com. 1382 Ky. 666, 136 Am. St. Rep. 192, 117 S. W. 253, 19 A. & E, Ann. Cas. 140, 1909. —Unconsciously assisting in for- warding criminal scheme of another will not constitute one an accom- plice. State v. District Ct. 37 Mont. 191, 95 Pace. 593, 15 A. & E. Ann. Cas. 748, 1908. Accessory is one who assists, in the method pointed out in the stat- ute, another in the commission of au felony in some one or more stages or steps leading up to the consum- mation of the offense. Figaroa v. State, 58 Tex. Crim. Rep. 611, 127 8. W. 193, 1910. Before there can be an accessory, there must be (1) a principal (State v. Bailey, 68 W. Va. 668, 60 S. E. 785, 1908). and (2) an offense com- mitted. Figaroa v. State, supra. “Aid” means to assist and sup- § 246] ACCESSORYSHIP, AGENCY, MISPRISION. 317 son a party to its commission, unless his interference was a duty, and his noninterference was one of the conditions of the plement the acts of another. Peo- ple v. Bond, 13 Cal. App. 175, 109 Pac. 150, 1910; Vance v. Com. — Ky. —, 115 S. W. 774, 1909; United States v. Williams, 159 Fed. 310, 1908. See infra, §§ 255, 263. But does not imply felonious in- tent or guilty knowledge. People v. Lewis, 9 Cal. App. 279, 98 Pac. 1078, 1908; People v. Bond, 13 Cal. App. 175, 109 Pac. 150, 1910. All persons concerned in the ac- ccomplishment of an unlawful and criminal purpose are principals. State v. Scott, 80 Conn. 317, 68 Atl. 258, 1907. Anyone who commits an offense, or does some act forming a part or one of the steps thereof, or assists in the actual commission, or any act forming a part thereof, becomes a party thereto. Ibid. One engaged in doing something in chain of acts leading to the consummation of an offense, though not actually present at the time of its commission, is a principal. Bass v. State, 59 Tex. Crim. Rep. 186, 127 S. W. 1020, 1910. Persons acting together in the commission of a crime are princi- als. O’Quinn v. State, 55 Tex. ‘Crim. Rep. 18, 115 8S. W. 39, 1908. Person aiding and abetting an- other in the commission of a burg- lary becomes a principal, under a statute abolishing the distinction ‘between an accessory before the fact and a principal, and between princi- pals in the first and second degree. People v. Wycoff, 150 Mich. 449, 114 N. W. 242, 1907. Person at whose instigation a criminal act is performed is either ‘a coprincipal in the first degree or a principal in the second degree, in those cases where he is actually or ‘constructively present at the com- mission of the crime. State v. Bailey, 68 W. Va. 668, 60 S. E. 785, 1908. Persons concerned in the commis- sion of a crime directly, or by aid- ing in its commission, are princi- pals, whether present at the time or not, and whether the crime be a felony or a misdemeanor. Sturgis v. State, 2 Okla. Crim. Rep. 362, 102 Pac. 57, 1909. Principal must be present at the time the crime is committed, or do some act at the time of the com- mission of the crime, which con- nects him with it. Supra. One may be convicted of aiding and abetting the principal in the commission of the crime, although charged with the crime jointly with the principal. Vogel v. State, 138 Wis. 315, 119 N. W. 190, 1909. Under Arkansas statute defining accessory as one who stands by. aids, abets, or assists, or has ad- vised or encouraged the commission of a crime, and making such per- son a principal, all persons con- cerned in the commission of a crime less than a felony are prin- cipals. Strong v. State, 88 Ark. 240, 22 LR.A.(N.S.) 560, 114 S. W. 239, 1908. Under Oklahoma statute, all per- sons concerned in the commission of an offense are principals, whether present or absent at the time of the actual commission. Cox v. State, 3 Okla. Crim. Rep. 129, 104 Pac. 1074, 105 Pac. 369, 1909; Green- wood v. State, 3 Okla. Crim. Rep. 247, 105 Pac. 371, 1909. Under Oregon statute abolishing a distinction between accessory be- fore the fact and principal, and be- tween principals in the first and second degree, one participating in the commission of a crime, or aid- ing or abetting in its commission, though not present, may be con- victed and punished as a principal. State v. Lewis, 51 Or. 467, 94 Pac. 831, 1908. —Person advising, assisting, or conniving at an offense, although not personally present when it is com- mitted, is a principal. Maxey v. United States, 30 App. D. C. 68, 1907. Under Alabama statute abolishing in felony cases the distinction be- tween an accessory before the fact 318 CRIMINAL LAW. [§ 246 commission of the crime; or unless his noninterference was de- signed by him and operated as an encouragement to or protection of the perpetrator.’ A person, for instance, in order to produce and a principal, and also between principals in the first and second de- gree, and requiring that all persons concerned in the commission of a felony, either directly or by aiding or abetting, though not present, shall be punished as principals, any word or act contributing to the commis- sion of a felony, or intended to in- cite or encourage thereto, makes the person affording the same a principal within the statute. McMahan v. State, 168 Ala. 70, 53 So. 89, 1910. Persons present, assisting in the commission of a criminal act, are principals in the second degree, not accessories. State v. Rowland Lum- ber Co. 153 N. C. 610, 69 S. E. 58, 1910. Person present for the purpose of assisting in the commission of a crime, if necessary, is an aider or abettor, and liable as a principal. Brinegar v. State, 82 Neb. 558, 118 N. W. 475, 1908. —Presence alone may be regarded as encouragement to principal actor, and constitute one an aider and abet- tor. State v. Cloninger 149 N. C. 567, 63 S. E. 154, 1908. —Procuring implements or other means to be used in the commission of a specific offense, with intent that they shall be so used, and knowingly assisting the perpetrators of the of- fense in preparation therefor, makes one a principal in the consummated offense. State v. Scott, 80 Conn. 317, 68 Atl. 258, 1907. —Two or more persons acting to- gether in the commission of a crime are both principals, though one was not present when the offense was actually committed. Lancaster v. State, 2 Okla. Crim. Rep. 681, 103 Pac. 1065, 1909. If two or more engage in the prose- eution of a felony, each person so engaged is bound by the acts of the others. People v. Anderson, 239 Ill. 168, 87 N. E, 917, 1909. Person who solicits others to join in the purchase of a 5-gallon keg of whisky, agreeing to purchase a cer- tain portion thereof, and contributes the money, and in this manner makes it possible for each purchaser to se- cure less than 5 gallons of whisky, in violation of law, is guilty of pro- curing, aiding and abetting in the sale of less than a 5-gallon quantity to each of the parties thus contribut- ing, and is liable as a_ principal. Strong v. State, 88 Ark. 240, 22 L.R.A.(N.S.) 560, 114 S. W. 239, 1908. Throwing stones at a train at the same time and place, by several dif- ferent persons; each person is liable, although some threw at one car and some at another, and proof of con- spiracy between such offenders is not necessary to the conviction. State v. Holder, 153 N. C. 606, 69 S. E. 66, 1910. —Abandonment of criminal pur- pose by one, see infra, § 267. —Persons present, aiding, and abetting in the commission of a crime, may be convicted, though the person who committed the same is not named in the indictment. State v. Patterson, 52 Kan. 335, 349, 34 Pac. 784, 789, 1893; State v. Jones, 7 Nev 408, 1872. 1Intra, § 252; 1 Hale, P. C. 439; Fost. C. L. 350. As to how far presence at a prize fight involves complicity, see Reg. v. Orton, 39 L. T. N. S, 298, 14 Cox, C. C. 226, and Reg. v. Coney, L. R. 8 Q. B. Div, 534, 15 Cox, C. C. 46, 51 L. J. Mag. Cas. N. S. 66, 46 L. T. N. S. 307, 30 Week. Rep. 678, 46 J. P. 404, and remarks in London Law Times, Dec. 17, 1881. Woman assisting in rape may be principal, See infra, § 691. Distinction is taken between -physi- cal and intellectual help, the latter being supposed to be help purely in words, or signs of encouragement. It should be observed, however, that all physical help is intellectual. A participant in a fight, for instance, to take an extreme case, sees a weapon offered to him by a person who is invisible. Here is physical aid and § 246] ACCESSORYSHIP, AGENCY, MISPRISION. 319 a collision on a railroad, starts a car on the top of a high grade. A switchtender, appointed to watch and adjust a particular switch, could avoid a collision by turning the switch, but inten- tionally refuses to do so. In such case he is an assistant in the homicide, if a homicide ensue. A watchman appointed to guard a bank sees burglars approach, and lets them pursue their work without interruption. By so doing he becomes assistant in the felony. But unless this abstention from interference re- moves a check which would otherwise prevent the commission of the crime, and is therefore equivalent to a positive act of assist- ance, the person so abstaining does not become a party to the crime. He may be indicted for his neglect in not assisting the officers of the law in arresting the offenders. But he is not in- dictable as concerned in the offense which the offender in ques- tion commits.* Hence, although a man be present while a felony is committed, yet if he take no part in it, and do not act in con- cert with those who commit it, he will not be a principal in the second degree merely because he does not endeavor to prevent: the felony or apprehend the felon.* Something must be shown. in the conduct of the bystander which indicates a design to en- courage, incite, or in some manner afford aid or consent to the particular act; though when the bystander is a friend of the per- in its most naked shape, since the person offering the aid is not even seen. But it is at the same time in- tellectual aid (or psychical, to take the German term), since it gives the combatant reason to believe that he has a friend near, ready to see him through. It is encouragement as well as assistance. [Fed.] United States v. Jones, 3 Wash. C. C. 209, Fed. Cas. No. 15,494, 1821. [Ala.] Smith v. State, 37 Ala. 472, 1864. [Cal.] People v. Woodward, 45 Cal. 298, 13 Am. Rep. 176, 1873. [D. C.] United States v. Neverson, 1 Mackey, 152, 1881. [Ga.] Jones v. State, 64 Ga. 697, 5 Am. Crim. Rep. 552, 1880; Laurence v. State, 68 Ga. 289, 1881. [Iowa] State v. Farr, 33 Iowa, 553, 1871, [Kan.] State v. Douglass, 44 Kan, 618, 26 Pac. 476, 1891. [Ky.] Butler v. State, 2 Duv. 435, 1875. [Mo.] State v. Miller, 100 Mo. 606, 18 S. W. 832, 1051, 1890. [N. C.] State v. Hildreth, 31 N. C. (9 Ired.): 440, 51 Am. Dec, 364, 1844. [Tex.] Cohea v. State, 9 Tex. App. 173,. 1880; Hancock v. State, 14 Tex. App. 393, 1883. 2Supra, § 169; infra, § 473. 3 “It is no criminal offense to stand. by a mere passive spectator of a crime, even of a murder.” Hawkins, J., Reg. v. Coney, L. R. 8 Q. B. Div. 534, 15 Cox, C. C. 46, 51 L. J. Mag. Cas. N. S. 66, 46 L. T. N. S. 307, 30: Week. Rep. 678, 46 J. P. 404. See Washington v. State, 68 Ga. 570,. 1881. 41 Hale, P. C. 439; Fost. C. L. 350. [Cal.] People v. Ah Ping, 27 Cal]. 489, 1865. [Ky.] Butler v. Com. 2 Duv. 435, 1875; Plummer v. Com. 1 Bush, 76, 1866. [Wis.] Hilmes v. Strobel, 59 Wis. 74, 17 N. W. 539, 1883; Con- naughty v. State, 1 Wis. 169, 60 Am. Dec. 370, 1852. CRIMINAL LAW. [§ 246 320 petrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone may be regarded as an encouragement.’ ‘Where presence may be entirely accidental it is not even evidence of aiding and abet- ting. Where presence is prima facie not accidental, it is ev- dence, but no more than evidence, for the jury.”® It is not necessary, therefore, to prove that the party actually aided in the commission of the offense; if he watched for his companions in order to prevent surprise, or remain at a convenient dis- tance in order to favor their escape, if necessary, or was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give additional confidence to his companions, in contemplation of law he was aiding and abetting.’ § 247. Capacity to execute not always essential. Nor is it necessary that the principal in the second degree should be personally capable of committing the offense.’ Thus a per- son incapable of rape may be principal in the second degree to rape; ® an unmarried man may be principal in the second degree to bigamy; * a cripple decoying into a trap one whom he could not even strike, may be guilty of homicide; and one who cannot 5 [Eng.] Reg. v. Taylor, L. R. 2 cited infra, § 266. See also infra, § €. C. 147, 13 Cox, C. C. 68, 1875; Reg. v. Cruse, 8 Car. & P. 541, 1838; Reg. vy. Atkinson, 11 Cox, C. C. 330, 1870. (Ark.] Wright v. State, 42 Ark. 94, 1881. [Cal.] People v. Woodward, 45 Cal. 293, 18 Am. Rep. 176, 1873. [Fla.] Savage v. State, 18 Fla. 909, 1882. [Ga.] King v. State, 21 Ga. 220, 1855. [Ill] White v. People, 81 Il. 333, 1876. [Ind.] Clem v. State, 33 Ind. 418, 1870. [Iowa] State v. Farr, 33 Iowa, 553, 1871. {Neb.] Walrath v. State, 8 Neb. 80, 1878. [Wis.] Connaughty v. State, 1 Wis. 159, 60 Am. Dec. 370, 1863. 6 Cave, J. (after citing Fost. C. L. 350) in Reg. v. Coney, L. R. 46 L. T. N. 8S. 307, L. R. 8 Q. B. Div. 534, 15 Cox, C. C. 46, 51 L. J. Mag. Cas. N. 'S. 66, 30 Week. Rep. 678, 46 J. P. 404, 1882; Reg. v. Young, 8 Car. & P. 644, 1838; Reg. v. Perkins, 4 Car. & P. 587, 1831; Reg. v. Taylor, L. R. 2 C. ©. 147, 13 Cox, C. C. 68, 1875, 497, 7 Jerv. Arch. 4; Thompson v. Com. 1 Met. (Ky.) 138, 1858; State v. Douglass, 34 La. Ann, 523, 1882. 1Rex v. Potts, Russ. & R. C. C. 353, 1818; United States v. Snyder, 4 McCrary, 618, 14 Fed. 554, 1882; United States v. Bayer, 4 Dill. 407, 18 Nat. Bankr. Reg. 403, Fed. Cas. No. 14,547, 1876. Infra, § 1604. As to suicide, see infra, § 254. A person may be guilty as princi- pal or as accessory to the commis- sion of a crime which he is personal- ly incapable of committing. State v. Burns, 82 Conn. 213, 72 Atl. 1083, 16 A. & E. Ann. Cas. 465, 1909. 2 Audley’s Trial, 3 How. St. Tr. 401. As to an infant codefendant see Law v. Com. 75 Va. 885, 40 Am. Rep. 750, 1880. 3 Boggus v. State, 34 Ga. 275, 1865. Supra, § 87. § 249) ACCESSORYSHIP, AGENCY, MISPRISION. 321 write, but supplies knowingly the materials, may be guilty of forgery.* § 248. Confederacy must be real. Thus, if one of the parties to a proposed burglary enter the house, not in order to steal, but to entrap the other party, the latter, who has not en- tered the house, is not indictable for burglary,’ and as has been just seen, mere presence at the commission of a crime does not imply complicity.? And where a person is forced to join in the commission of a crime through fear of danger to life or limb, this will not make him an accomplice; * neither will mere con- nection with the defendant in a prior transaction which was violative of the law make-a party an accomplice in the perpe- tration of a subsequent felony.* § 249. Mere sympathy not confederacy. Mere sympa- thy, also, even by a bystander, does not by itself constitute con- federacy.! Hence mere consent to a crime, when no aid is given, and no encouragement rendered, does not amount to par- ticipation.® 4Infra, § 255. 1People v. Collins, 53 Cal. 185, 1878. Detective is not a confederate. See supra, § 190; Price v. People, 109 Til. 109, 1883. One feigning to be an accomplice in commission of an offense, for the purpose of detecting an offender, need not take an officer of the law into his confidence, in order to avoid being charged as a party to the crime. People v. Emmons, 7 Cal. App. 685, 95 Pac. 1032, 1908. See also authorities, supra, § 190. Party furnished by police to play at crap game, for the purpose of pro- curing evidence on which to base a prosecution, is not an accomplice with the person maintaining the game. State v. Lee, 228 Mo. 480, 128 S. W. 987, 1910. 2 Supra, § 245. 3 Henderson v. State, 5 Ga. App. 495, 63 S. E. 535, 1909. 4Warren v. State, 57 Tex. Crim. Rep. 518, 123 S. W. 1115, 1910. 1Infra, §§ 266, 1669. [Eng.] Reg. v. Taylor, L. R. 2 C. C. 147, 13 Cox, Cc. C. 68, 44 L. J. Mag. Cas. N. S. 67, 32 L. T. N.S. 409, 23 Week. Rep. Crim. L, Vol. I.—21, It is otherwise in respect to such silent assent to a 616, 1875. [Cal.] People v. Leith, 52 Cal. 251, 1877. [Ga.] Guilford v. State, 24 Ga. 315, 1857; Martin v. State, 25 Ga. 494, 1858. [Ind.] Clem v. State, 33 Ind. 418, 1870. [Ky.] Plummer v. Com. 1 Bush, 76, 1876. [Mass.] Com. v. Cooley, 6 Gray, 350, 1856. [Mo.] State v. Cox, 65 Mo. 29, 1877. [Wis.] Connaughty v. State, 1 Wis. 159, 60 Am. Dec. 370, 1853. As to sympathetic spectators at prize fights, see infra, §§ 497, 498, 1738. As to sympathetic neutrals, see infra, § 2253. 2White v. People, 81 Ill. 333, 1876; Tullis v. State, 41 Tex. 598, 1874. Mere knowledge that another has committed a criminal act is not suf- ficient to make such party responsi- ble for the crime. State v. Craw- ford, 151 Mo. App. 402, 132 S. W. 43, 1910. Mere neglect to inform as to the commission of a crime, or to arrest the criminal, will not make one an accomplice after the fact. Levering v. Com, 182 Ky. 666, 186 Am. St. CRIMINAL LAW. {§ 249 322 statement of another to a third party as amounts to an ap- proval.® § 250. If principal is irresponsible, indictment should not be for aiding and abetting. We have already seen that he who acts through an irresponsible agent is liable as principal.’ It follows, therefore, that a person so acting is not liable as principal in the second, but as principal in the first, degree. Hence, if a principal in a transaction be not liable under our laws, another cannot be charged merely for aiding and abetting him, unless such abettor do acts which render him liable as principal.? § 251. Confederacy with constructive presence may constitute one a principal. Any participation in a general felonious plan, provided such participation be concerted, and there be constructive presence, is enough to make a man prin- cipal in the second degree, as to any crime committed in execu- tion of the plan.’ Thus, if several act in concert to steal a man’s goods, and he is induced by fraud to trust one of them in the presence of others with the possession of the goods, and then another of the party entice the owner away so that he who Rep. 192, 117 S. W. 253, 19 A. & E. Ann, Cas. 140, 1909. Mere failure to report to the of- [ ficial or officer, knowledge gained of a contemplated crime, does not make a party an accomplice in the com- mission of that crime. Chandler v. State, — Tex. Crim. Rep. —, 131 8. W. 598, 1910. Under Oklahoma statute, in order [ that a party be liable for a crime, he must be concerned in the commis- sion of the offense, either as an active agent in doing the act, or in procuring it to be done by aiding or abetting; mere acquiescence will not render him liable. Moore v. State, 4 Okla. Crim. Rep. 212, 111 Pac. 822, 1910. 8 Infra, § 1434. 1Supra, § 241. See also Reg. v. Tylor, 8 Car. & P. 616, 1838. 2 United States v. Libby, 1 Woodb. & M. 221, Fed. Cas. No. 15,597, 1846. See United States v. Crane, 4 Mc- oe 317, Fed. Cas. No. 14,888, 1850. lInfra, §§ 256, 1671; Stephen’s Digest Crim. Law, 5th ed. art. 40. Eng.] Sissinghurst’s Case, 1 Hale, P. C. 462, 1672. [Eng.] Rex v. Manners, 7 Car. & P. 801, 1837. [Cal.] People v. Brown, 59 Cal. 345, 1881. [La.] State v. Buchanan, 35 La. Ann. 89, 1888. [Mass.] Com. v. Knapp, 9 Pick. 496, 20 Am. Dec. 491, 1829. Mo.] Green v. State, 13 Mo. 382, 1850. [N. Y.] McCartney v. People, 83 N. Y. 408, 38 Am. Rep. 456, 1881; People v. Britton, 134 App. Div. 275, 118 N, Y. Supp. 989, 1909. [Ohio] Breese v. State, 12 Ohio St. 146, 80 Am. Dec. 340, 1861. [Tex.] Selvidge v. State, 30 Tex. 60, 1867. [Va.] Trim v. Com. 18 Gratt. 983, 98 Am. Dec. 765, 1868. Under a statute making one a principal who counsels or procures a crime to be committed by another, he may be indicted, though not present when the crime was actually committed. People v. Britton, 134 rin Div. 275, 118 N. Y. Supp. 989, § 252] 323 ACCESSORYSHIP, AGENCY, MISPRISION. has the goods may carry them off, all are guilty as principals.’ So, it has been ruled, that to aid and assist a person to the ju- rors unknown, to obtain money by ringdropping, makes the party principal in the second degree, if the jury find that the prisoner was confederate with the person unknown, to obtain the money by means of this practice.* And so confederates watching out- side, the object being to effect a murder, incur the same guilt as the confederate by whom the blow is struck.* § 252. But act must result from confederacy. But the act, in order thus to be imputed to all the confederates, must be the result and in execution of the confederacy; * and if the crime is committed by a confederate as collateral to an escape after the plot is exploded; * as when several are out for 2 Rex v. Standley, Russ. & R.C.C. Am. Rep. 176, 1873. [Iowa] State 305, 1818; Rex v. Passey, 7 Car. & P. 282, 1836; Rex v. Lockett, 7 Car. & P. 300, 1836. 3 Rex v. Moore, 1 Leach, C. L. 314, 2 East, P. OC. 679; Rex v. Standley, Russ. & R. C. C. 305, 1817; Rex v. Passey, 7 Car. & P. 282, 1836; Rex v. Lockett, 7 Car. & P. 300, 1836. Confederate unlocking room.—Iin Reg. v. Jeffries, 3 Cox, C. C. 85, 1849, Cresswell, J., after conferring with Patteson, J., held that if A, one of two confederates, unlocks the door of a room in which a larceny is to be completed, and then go away, and B, the other confederate, comes and steals the goods, the former is not a principal in the theft. This, how- ever, is disapproved in State v. Hamilton, 13 Nev. 386, 1878, and, supposing that the aid rendered by A promoted the execution of the felony, it is in conflict with the cases above stated. 4 Mitchell v. Com. 33 Gratt. 845, 1879. Infra, § 256. 1See infra, €§ 258, 523. [Eng.] Rex v. Hodgson, 1 Leach, C. L. 6, 1 East, P. C. 258, 1730; Duffey’s Case, 1 Lewin, C. C. 194, 1830; Reg. v. Cruse, 8 Car. & P. 541, 1838; Reg. v. Price, 8 Cox, C. C. 96; Reg. v. Taylor, L. R. 2 C. C. 147, 18 Cox, C. C. 68, 44 L. J. Mag. Cas. N.S. 67,32 L.T. N. 8. 409, 23 Week. Rep. 616, 1875. [Fed.] United States v. Gibert, 2 Sumn. 19, Fed. Cas. No. 15,204, 1837. [Cal] People v. Woodward, 45 Cal. 293, 13 v. Lucas, 55 Iowa, 321, 7 N. W. 583, 1881; [Mass.] Com. v. Campbell, 7 Allen, 541, 88 Am. Dec. 705, 1863. [Mich.] People v. Knapp, 26 Mich. 112, 1872. [Ohio] Breese v. State, 12 Ohio St. 146, 80 Am. Dec. 340, 1861. [Tex.] Mercersmith v. State, 8 Tex. App. 211, 1880. See cases cited infra, §§ 256, 258; supra, § 246. 2 Rex v. Collison, 4 Car. & P. 565, 1831; Reg. v. Howell, 9 Car. & P. 487, 1839; People v. Knapp, 26 Mich. 112, 1872. When no criminal responsibility attaches.—‘“There can be no criminal responsibility for anything not fair- ly within the common enterprise, and which might be expected to hap- pen if occasion should arise for any- one to do it. In other words, the principle is quite analogous to that of agency, where the liability is measured by the express or implied authority. And the authorities are quite clear and reasonable, which deny any liability for acts done in escaping, which were not within any joint purpose or combination.” Campbell, J., People v. Knapp, 26 Mich. 112, 1872. Confederate abandoning enter- prise before homicide.—An interest- ing question, already discussed in some of its relations (see supra, § 226), arises where one confederate abandons the enterprise before the homicide is committed. Such aban- CRIMINAL LAW. [§ 252 324 the purpose of committing a felony, and upon an alarm run dif- ferent ways, and one of them maim a pursuer to avoid being taken ; the others are not to be considered principals in such act.* Persons, also, interfering in hot blood in a fight, which was started by the immediate parties deliberately, may be guilty only of manslaughter, while the immediate parties are guilty of murder.* And when H and S broke open a warehouse and stole thereout thirteen firkins of butter, ete., which they carried along the street 30 yards, and then called the prisoner, who was ap- prised of the theft, and he assisted in carrying the property away, he was held not a principal, the felony being complete be- fore he interfered.® And it may be, therefore, generally declared that a confederate is not responsible for a crime which is not a probable and natural result of the confederacy, unless such crime was committed with his assent.® donment, it has been held, is no de- fense where notice of it is not given to his associates before the blow is struck. State v. Allen, 47 Conn. 121, 1879. Aiding and abetting — Dangerous wound.—B is indicted for inflicting on C an injury dangerous to life, with intent to murder. A is indict- ed for aiding and abetting B. A must be shown to have known that it was B’s intent to murder C, and it is not enough to show that A helped B in what he did. Stephen’s Digest Crim. Law, art. 38, citing Reg. v. Cruse, 8 Car. & P. 541, 1838. 8 Rex v. White, Russ. & R. C. C. 99, 1805; Rex v. Collison, 4 Car. & P, 565, 1831; Reg. v. Howell, 9 Car. & P. 487, 1839. Mayhem—Maiming as part of at- tack.—In State v. Absence, 4 Port. (Ala.) 397, 1856, the maiming was part of an attack which the defend- ants were concerned in making; and the court erred in holding that the mayhem was not imputable to all the defendants. 4State v. King, 2 Rice’s Dig. (S. C.) 106. See infra, §§ 607, 625. 5 Rex v. King, Russ. & R. C. C. 332, 1818; Rex v. M’Mackin, Russ. & R. C. C. 333, 1818. Supra, § 202. 6See infra, §§ 258, 523, 606. [Eng.] Rex v. Murphy, 6 Car. & P. 108, 1833; Reg. v. Franz, 2 Fost. & F. 580, 1860; Reg. v. Horsey, 3 Fost. & F. 287, 1862; Reg. v. Skeet, 4 Fost. & F. 931, 1864; Rex v. Hawk- ins, 3 Car. & P. 392, 1828; Reg. v. Tyler, 8 Car. & P. 616, 1838; Reg. v. Price, 8 Cox, C. C. 96, 1858; Rex v. Collison, 4 Car. & P. 565, 1831. [Fed.] United States v. Jones, 3 Wash. C. C. 209, Fed. Cas. No. 15,- 494, 1821. [Ill.] Lamb v, People, 96 Ill. 78, 1880. [Mass.] Com. v. Camp- bell, 7 Allen, 541, 83 Am. Dec. 705, 1863. [Mich.] People v. Knapp. 26 Mich. 112, 1872. [N.C.] State v. Staleup, 23 N. C. (1 Ired. L.) 30, 35 Am. Dec. 732, 1840. [Tenn.] Manier v. State, 6 Baxt. 595, 1875. [Tex.] Harris v. State, 15 Tex. App. 629, 1883; Miller v. State, 15 Tex. App. 125, 18838. [W. Va.] Watts v. State, 5 W. Va. 532, 1872. See also other cases cited infra, § 5238. Mere sympathetic cognizance does not constitute complicity, see [Cal.] People v. Leith, 52 Cal. 251, 1877. [Mo.] State v. Cox, 65 Mo. 29, 1877. [Wis.] Connaughty v. State, 1 Wis. 159, 60 Am. Dec. 370, 1853. oh supra, § 249; infra, §§ 1667, 1669. § 254] ACCESSORYSHIP, AGENCY, MISPRISION. 325 § 253. In duels all are principals. In the case of mur- der by dueling, in strictness, all parties, as will be more fully seen, are technically principals.’ And all persons present at a prizefight, having gone thither for the purpose of encouraging the prizefighters, are principals in the breach of the peace.* § 254. Persons abetting suicide are principals in murder. If one encourage another to commit suicide, and is pres- ent aiding him while he does so, such person is guilty of murder as a principal; and if two encourage each other to mur- der themselves, and one does so, the other being present, but the latter fail in an attempt upon himself, he is principal in the murder of the first.) Whether the influence of the defend- ant was the exclusive cause of the suicide is immaterial.? All present at the time of committing the offense are principals, although only one acts, if they are confederates, and engaged in the common design of which the offense is a part. Where, how- ever, the act is done in the absence of the party who incites it, the latter has been held, in England, not to be amenable to in- dictment as a principal, because he was not present; nor as an accessory before the fact at common law, because the principal cannot be convicted,‘ nor as guilty of a substantive felony under 7 Geo. ITI. chap. 64, § 9, because that statute is to be considered as extending to those persons only who, before the statute, were liable either with or after the principal, and not to make those liable who before could never have been tried. But by subse- quent statutes the English law in this respect is materially changed.® That an attempt to commit suicide may be indict- able at common law is elsewhere seen.” 1See fully infra, § 809; Reg. v. [Ohio] Blackburn v. State, 23 Ohio Young, 8 Car. & P. 644, 1838. 2Rex v. Perkins, 4 Car. & P. 587, 1831; Rex v. Murphy, 6 Car. & P. 103, 1838; Cf. Reg. v. Coney, L. R. 8 Q. B. Div. 543, 15 Cox, C. OC. 46, 46 L. T. N.S. 307, 51 L. J. Mag. Cas. N. 8S. 66, 30 Week. Rep. 678, 46 J. P. 404. Cited supra, § 246; infra, §§ 498, 833. 1See more fully infra, §§ 575, et seq. [Eng.] Rex v. Dyson, Russ. & R. C. C. 523, 1819; Rex v. Russell, 1 Moody, C. C. 356, 1832; Reg. v. Alison, 8 Car. & P. 418, 1838. [Mo.] State v. Ludwig, 70 Mo. 412, 1879. St. 165, 1872. 2Com. v. Bowen, 13 Mass. 356, 7 Am. Dec. 154, 1815; Wharton, Prec- edents, 107. 3Green v. State, 13 Mo. 382, 1850. See supra, §§ 240-242. 4Reg. v. Fretwell, 9 Cox, C. C. 152, 1862, Leigh & C. C. C. 161, 31 L. J. Mag. Cas. N. S. 145, 8 Jur. N.S. 466, 6 L. T. N. S. 333, 10 Week. Rep. 545. 5 See Reg. v. Leddington, 9 Car. & P. 79, 1889; Rex v. Russell, 1 Moody, C. C. 356, 1832. €See infra, §§ 575, et seq. 7Supra, § 214. 326 CRIMINAL LAW. [§ 254 A party who compels another to take poison, so as to produce death, is responsible for the murder.as principal in the first degree.® § 255. Persons executing parts of crime separately are principals. Where one assailant strikes a blow which is not fatal, and a confederate follows it up with a fatal blow, both are principals in the homicide.’ If part of a crime also be com- mitted in one place and part in another, each person concerned in the commission of either part is liable as principal.? Hence, if several combine to forge a document, and each executes, by himself, a distinct part of the forgery, and they are not together when the instrument is completed, they are nevertheless all guilty as principals. And if A counsel B to make the paper, C to engrave the paper, D to fill up the names of a forged note, and they do so, each without knowing that the others are em- ployed for that purpose, B, C, and D may be indicted for forgery, and A as an accessory;* for if several make distinct 8 Forcing another to take poison— Suicide pact.—Thus in a case tried in 1872 in Ohio (where suicide is not a crime, there being in that state no common-law crimes), the evidence was that the defendant, Blackburn, gave to the deceased, Mary Jane Lowell, poison, to be taken by her; and there was evidence tending to show that the defendant, by threats of violence or otherwise, forced her to swallow the poison, or forced it down her throat. There was also evidence of a mutual agreement be- tween the parties to commit suicide. The defendant was convicted of mur- der in the second degree, under the Ohio statute making killing by ad- ministering poison murder. This was sustained in the supreme court. “To force poison down one’s throat,” said Welch, J., “or to compel him by threats of violence to swallow it, is an administering of poison. Neither deception nor breach of confidence is ‘a necessary ingredient in the act. It matters not whether the poison be put into the hand or into the stom- ‘ach of the party whose life is to be destroyed by it.” Blackburn v. State, 23 Ohio St. 146, 1872. Accessory before the fact—Man- slaughter.—In a reserved case before the English judges, the evidence showed that the prisoner procured certain drugs and gave them to his wife, with intent that she should take them in order to procure abor- tion. She took them in his absence and died from their effects. On an indictment against him for man- slaughter, it was objected that he was only an accessory before the fact, and that in law there cannot be an accessory before the fact to manslaughter. It was held that a conviction for manslaughter was proper. Reg. v. Gaylor, 7 Cox, ©. C. 253, Dears. & B. C. C 288, 40 Eng. L. & Eq. Rep. 556, 1856; People v. Weber, 66 Cal. 391, 15 Pac. 679, 1885. 1 Tidwell v. State, 70 Ala. 33, 1881. 2 Reg. v. Kelly, 2 Car. & K. 379, 1847. See Rex v. Lockett, 7 Car. & P. 300, 1836; Reg. v. Whittaker, 1 Den. C. C. 310, 2 Car. & K. 636, 17 L. J. Mag. Cas. N. S. 127, 3 Cox, C. C. 50, 1848; Hanna v. People, 86 Ill. 243, 1877. 8 Rex v. Bingley, Russ. & R. C. C. 446; Rex v. Kelly, Russ. & R. C. C. 421, 1820. + Rex v. Dade, 1 Moody, C. C. 307, 1833. § 256] ACCESSORYSHIP, AGENCY, MISPRISION. 327 parts of a forged instrument, each is a principal, though he do not know by whom the other parts are executed, and though it is finished by one alone in the absence of the others.* § 256. Persons oustide keeping watch are principals. It has been already seen that actual immediate presence at the injury is not necessary; (1) when the defendant acts through an irresponsible agent (e. g., through a lunatic or infant) ;* and (2) when he acts through a material agent, such as poison, which does not require the presence of a guilty director to make it effective. Nor is it necessary that the party should be actually present, an ear or eyewitness of the transaction, in order to make him principal in the second degree; he is, in construction of law, present aiding and abetting, if, with the intention of giving assistance, he be near enough to afford it should the occasion arise.* Thus, if he be outside of an inclosure, watching, to pre- vent surprise, or for the purpose of keeping guard, while his confederates are inside committing the felony, such construc- tive presence is sufficient to make him a principal in the second degree.* No matter how wide may be the separation of the con- federates, if they are all engaged in a common plan for the exe- cution of a felony, and all take their part in furtherance of the common design, all are liable as principals.* Actual presence is 5 Rex v. Kirkwood, 1 Moody, ©. C. 9 Pick. 496, 20 Am. Dec. 491, 1829; 304, 1833. See Reg. v. Kelly, 2 Cox, Com. v. Lucas, 2 Allen, 170, 1861; C. C. 171, 1848. Com. v. Wallace, 108 Mass. 14, 1871. 1 When person committing crime is a guilty agent, the procurer is a principal offender. See Smith v. State, 21 Tex. App. 107, 17 8. W. 552, 1886. 2See State v. Douglass, Ann. 528, 1882. 3 Fost. C. L. 347, 350, 2 Hawk. P. C. chap. 29, §§ 7, 8; 1 Russell, Crimes, 31; 1 Hale, P. C. 555. [Eng.] Rex v. Borthwick, 1 Dougl. K. B. 207; Coal-Heavers Case, 1 Leach, C. C. 66; Rex v. Gogerly, Russ. & R. C. C. 3438, 1818; Rex v. ‘Owen, 1 Moody, C. C. 96, 1826; Reg. v. Vanderstein, 10 Cox, C. C. 177, 16 Tr. C. L. Rep. 574, 1865. [Ala.] State v. Coleman, 5 Port. (Ala.) 32, 1837. [Ark.] Thomas v. State, 43 Ark. 149, 1884, [Ind.] Tate v. State, 6 Blackf. 110, 1842; Doan v. State, 26 Ind. 495, 1866. [Mass.] Com. v. Knapp, 34 La. [Nev.] State v. Squaires, 2 Nev. 226, 1865. [N. Y.] Ruloff v. People, 45 N. Y. 213, 1870. [N. C.] State v. Hardin, 19 N. C. (2 Dev. & B. L.) 407, 1837. [Ohio] Breese v. State, 12 Ohio St. 146, 80 Am. Dec. 340, 1861; Stephens v. State, 42 Ohio St. 150, 1884; State v. Town, Wright (Ohio) 75, 1831. [Tex.] Selvidge v. State, 30 Tex. 60, 1867; Truitt v. State, 8 Tex. App. 148, 1880. 4 Supra, §§ 243-251; Rex v Stand- ley, Russ. & R. C. C. 305, 1818. Crime must be the result of a prearranged plan. [Ala.] Jordan v. State, 81 Ala. 20, 1 So. 577, 1887. [Ga.] Roney v. State, 76 Ga. 731, 1886. [Ill] White v. People, 139 Ill. 148, 32 Am. St. Rep. 196, 28 N. E. 1088, 1891. [N. C.] State v. Whitson, 111 N. C. 695, 16 S. E. 332, 1892. [Tex.] Quinn vy. State, — CRIMINAL LAW. [§ 256 328 not necessary if there is direct connection between the actor and the crime. Turning out a wild beast with intent to do mischief, so that thereupon death ensues, involves, as we have seen, the guilt of a principal; *® and the same grade of guilt is imputable to him who, intending to kill, sets a spring gun or explosive machine,® no matter how far he may be from the place where the hurt is inflicted. Hence, as will presently be more fully seen, a confederate who aids in the commission of a robbery by a sig- nal on a distant hill, notifying the approach of the parties to be attacked, is a principal in the robbery.’ A person, however, is not constructively present at an overt act of treason, unless he be aiding and abetting at the fact, or ready to do so, if neces- sary.® § 257. An abettor must be near enough to give assist- ance. But persons not actually assisting are not principals. at common law.’ Thus, where Brighton uttered a forged note at Portsmouth, the plan was concerted between him and two others, to whom he was to return, when he passed the note, and divide the proceeds. The three had before been concerned in uttering another forged note; but at the time this note was be- ing uttered in Portsmouth, the other two stayed at Gosport. The jury found all three guilty, but on a case reserved, the judges were clear that as the other two were not present, nor sufficiently near to assist, they could not be deemed principals, and there- fore they were recommended for a pardon.*. Going toward the place where a felony is to be committed, in order to assist in carrying off the property, and assisting accordingly, will not make a man a principal, if he were at such a distance at the time of the felonious taking as not to be able to assist in it. And. Tex. Crim. Rep. —, 20 S. W. 1108, 1893. 5 Fost. C, L. 349; 1 Hale, P. C. 514. 6See supra, §§ 203, 208; infra, § 638. 7State v. Hamilton, 13 Nev. 386, 1878, cited infra, § 258; see Scales v. State, 7 Tex. App. 361, 1880. 8 Re Burr, 4 Cranch, 492, 2 L. ed. 695, 1808; infra, § 262. 1 Taylor v. State, 9 Tex. App. 100, 1880. Aidors and abettors—Proximity.— One within 150 yards aiding and abetting can be convicted as a prin- cipal. State v. Chastain, 104 N. C. 900, 10 S E. 519, 1890; and see State v. Prater, 26 S. C. 198, 2 S. E.. 108, 1887. 2 Rex v. Soares, 2 East, P. C. 974, Russ. & R. C. C. 25, 1802; and see Rex v Stewart, Russ. & R. C. C. 363, 1818; Rex v. Badcock, Russ. & R. C. C. 249, 1817; Rex v. Mamners, 7 Car. & P. 801, 1837. Infra, § 915. 3Rex v. Kelly, Russ. & RC. G@ 421, 1820. § 258] ACCESSORYSHIP, AGENCY, MISPRISION. 329 although an act be committed in pursuance of a previous con- certed plan between the parties, those who are not present, or so near as to be able to afford aid and assistance at the time when the offense is committed, are not principals in cases where the felony is immediately executed by responsible agents, but are accessories before the fact.* Presence, however, during the whole of the transaction, is not necessary ; for as we have already seen, if several combine to forge an instrument, and each exe- cute by himself a distinct part of the forgery, and they are not together when the instrument is completed, they are, neverthe- less, all guilty as principals.® And presence is not to be deter- mined by mere contiguity of space. A man who, on a mountain top at a distance of 30 miles, assists a highway robber by a sig- nal, in making an attack; is a principal in the robbery.® § 258. Persons confederating for wrongful purpose are chargeable with incidental felony. All those who as- semble themselves together with an intent to commit a wrongful act, the execution whereof makes probable in the nature of things a crime not specifically designed, but incidental to that which was the object of the confederacy, are repsonsible for such incidental crime.’ Thus, if several persons come armed to a house with intent to commit an affray or a personal outrage (such affray or outrage having bloodshed as a probable incident), and a homicide ensues while the assailants are engaged in such illegal proceedings, then even those who may not actually participate in any overt act of outrage will be principals in the homicide.? And where persons combine to stand by one another 4Rex v. Soares, Russ. & R. C. C. [Eng.] Reg. v. Howell, 9 Car & P. 25, 2 East P. C. 974, 1802; Rex v. 437, 1887; Reg. v. McNaughten, 14 Davis, Russ. & R. C. C. 113, 1810; Cox, C. C. 576, 1879. [Fed.] United Rex v. Else, Russ. & R. C. C. 142, States v. Boyd, 45 Fed. 851, 1890. 1813; Rex v. Badcock, Russ. & R. C. C. 249, 1817; Rex v. Manners, 7 Car. & P 801, 1837. 5 Rex v. Bingley, Russ. & R. C. C. 446, 1820. See 2 East, P. C. 768. See supra, § 255. 6 State v. Hamilton, 13 Nev. 386, 1878. Infra, § 325. As giving a still larger meaning to “abet,” see State v. Stanley, 48 Towa, 221, 1878. 1Supra, § 252; Fost. C. L. 361, 352; 2 Hawk. P. C. chap. 29, § 9. [Ark.] Carr v State, 48 Ark. 99, 5 Am. Crim. Rep. 438, 1884. [IIl.] Brennan v. People, 15 Ill. 511, 1853. [Miss.] Peden v. State, 61 Miss. 268, 1875. [N. Y.] Carrington v. People, 6 Park. Crim. Rep. 336, 1860. [Or.} State v. Johnson, 7 Or. 210, 1879. [Tenn.] Allen v.-State, 12 Lea, 424, 1883. See also infra, § 1852. 2Dalton’s Country Justice, chap. 161; 1 Hale, P. C. 489; 2 Hawk. P. C. chap. 29, § 8; Simmons v. State, 61 330 CRIMINAL LAW. [§ 258 in a breach of the peace, with a general resolution to resist to the death all opposers, and in the execution of their design a murder is committed, all of the company are equally principals in the murder, though at the time of the fact some of them were at such a distance as to be out of view.* So where a number of persons combine to seize with force and violence a vessel, and run away with her, and, if necessary, to kill any person who should cppose them in the design, and murder ensues, all concerned are principals in such murder.* Hence it is not necessary that the crime should be part of the original design; it is enough if it be one of the incidental probable consequences of the execution of that design, and should appear at the moment to one of the par- ticipants to be expedient for the common purpose.® Thus, where A and B go out for the purpose of robbing C, and ‘A, in pur- suance of the plan, and in furtherance of the robbery, kills C, B is guilty of the murder.® In such cases of confederacy all are responsible for the acts of each, if done in pursuance of, or as incidental to, the common design.”. Where, however, a homicide is committed collaterally by one or more of a body unlawfully associated, from causes having no connection with the common object, the responsibility for such homicide attaches exclusively Miss. 244, 1875; Peden v. State, 61 out in a different way from that sug- Miss. 268, 1875; State v. Barrett, 40 Minn. 77, 41 N. W 463, 1889. 8[Eng.] Reg. v. Howell, 9 Car. & P. 437, 1837. ([Ill.] Williams v. People, 54 Ill. 422, 1870. [N. Y.] Ruloff v. People, 45 N. Y. 213, 1871. [Pa.] Com. v. Hare, 2 Clark (Pa.) 467, 1844. [Tex.] Miller v. State, 15 Tex. App. 125, 1883. [Wis.] Miller v. State, 25 Wis. 384, 1870. Qualification stated by Bigelow, Ch. J., Com. v. Campbell, 7 Allen, 541, 83 Am. Dec 705, 1863. 4United States v. Ross, 1 Gall. 624, Fed. Cas. No. 16,196, 1814. See Brennan v. People, 15 Ill. 511, 1853. 5See cases cited infra; and see Reg. v. Tyler, 8 Car. & P. 616, 1858; Reg. v. Bernard, 1 Fost. & F, 240, 1858; Reg. v. Cooper, 1 Cox, C. C. 266, 1845. [Ga.] Ferguson v. State, 32 Ga. 658, 1861. [Tenn.] Beets v. State, Meigs, 106, 1838; supra, § 258; infra, § 523. Carrying out in different manner. —And when the crime was carried gested, the instigator is nevertheless guilty. Griffith v. State, 90 Ala. 583, 8 So. 812, 1891. 6 Reg. v. Jackson, 7 Cox, C. C. ane 1856, and cases cited infra, § 7[Eng.] Rex v. Murphy, 6 Car. & P. 103, 1833; Reg. v. Tyler, 8 Car. & P. 616, 1836. [Fed.] United States v. Ross, 1 Gall. 624, Fed Cas. No. 16,196, 1814; United States v. Gibert, 2 Sumn. 19, Fed. Cas. No. 15,204, 1837. [Ala.] Thompson v. State, 25 Ala. 41, 1854; Martin v. State, 90 Ala 602, 24 Am. St. Rep. 844, 8 So. 858, 1891. [Ill.] Brennan v. People, 15 Ill. 511, 1853. [La.] State v. Blackman, 35 La. Ann. 483, 1883. [Mich.] People v. Knapp, 26 Mich. 112, 1872. [Pa.] Com. v. Neills, 2 Brewst. (Pa.) 553, 1868; Com. v. Daley, 2 Clark (Pa.) 361, 1844, [Tenn.] Moody v. State, 6 Coldw. 299, 1869. See also supra, §§ 141, 157. § 259) ACCESSORYSHIP, AGENCY, MISPRISION. 331 to its actual perpetrators.° When, also, the offense is only man- slaughter in the person striking the blow, it is only manslaugh- ter in those engaged with the like temper and purpose,’ though if there be malice proved as to any one party, he may be sepa- rately found guilty of murder.’® It must also be remembered that a rioter is not responsible, on an indictment for murder, for a death accidentally caused by officers engaged in suppressing the riot,” nor in an affray, are the original parties responsible for a death caused by strangers wantonly and adversely breaking in.” How far abandonment relieves from responsibility has been elsewhere noticed.” § 259. Distinction between two degrees essential only when punishment varies. The distinction between principals in the first and second degree, it has been said, is a distinc- tion without a difference; and therefore it need not be made in indictments.’ Such is only the case, however, where the punish- 8Ibid; supra, §§ 202, 252; infra, § 523, and cases there cited. [Eng.] Reg. v. Murphy, 6 Car. & P. 103, 1833; Rex v. Collison, 4 Car. & P. 565, 1881; Reg. v. M’Phane, Car. & M. 212, 1841; Reg. v. Skeet, 4 Fost. & F. 931. [Ill] Lamb v. People, 96 Ill. 73, 1880. [Mich.] People v. Knapp, 26 Mich. 112, 1872. 9 Reg. v. Murphy, 6 Car. & P. 103, 1833. 10 Reg. v. Caton, 12 Cox, C. C. 624, 1873. Agreement to fight with fists—Use of deadly weapon.—In this case there was an agreement to fight with fists. One of the party took a deadly weap- on with him and used it without his associate’s knowledge. It was held that the latter was not guilty of murder. This may be conceded, sup- posing that the object of the agree- ment was simply fighting with fists. But if the weapon was one likely to be carried and used in such a con- flict, he ought to have been held guilty of manslaughter. 11Com. v. Campbell, 7 Allen, 541, 83 Am. Dec. 705, 1863. 12 Reg. v. Murphy, 6 Car. & P. 103, 1833. See more fully supra, § 252, and infra, § 523. Parties on both sides of a riot are Tesponsible for the homicide of a stranger shot in the collision. See Com. v. Hare, 2 Clark (Pa.) 467, 1844. 18 Supra, §§ 226, 252; infra, § 267. 1[Eng.] Reg. v. O’Brian, 1 Den. C.C. 9, 2 Car. & K. 115, 1 Cox, C. C. 126, 1844; Reg. v. Rogers, 2 Moody, C. C. 85, 2 Lewin, C. C. 119, 297, 1836; Reg v. Crisham, Car. & M. 187, 1841. [Fed.] United States v. Wilson, Baldw. 78, Fed. Cas. No. 16,- 730, 1830. [Ark.] Dennis v. State, 5 Ark. 230, 1848. [Cal.] People v Ah Fat, 48 Cal. 61, 1874. [Ga.] Hately v. State, 15 Ga. 346, 1854; Hill v. State, 28 Ga. 604, 1859; Washington v. State, 68 Ga. 570, 1881; Williams v. State, 69 Ga. 11, 1881. [Iowa] State v. Hessian, 58 Iowa, 68, 12 N. W. 77, 1882. [Me.] State v. Dyer, 59 Me. 303, 1871. [Mass.] Com. v. Chapman, 11 Cush. 422, 1853; Com. v. Fortune, 105 Mass. 592, 1870. [Mo.] State v. Davis, 29 Mo. 391, 1859. [N. H.] State v M’Gregor, 41 N. H. 407, 1870. [TI. C.] State v. Hill, 72 N. C. 345, 1876. [Or.] State v. Kirk, 10 Or. 505, 1881. [S. C.] State v. Fley, 2 Brev. 338, 4 Am. Dec. 583, 1815; State v. An- thony, 1 M’Cord, L. 285, 1821; State v. Jenkins, 14 Rich. L. 215, 94 Am. Dec. 132, 1867; State v. Green, 4 Strobh. L. 128, 1848. [Tex.] Clay 332 CRIMINAL LAW. [§ 259 ment is the same for both degrees.* But where, by particular statute, the punishment is different, then principals in the second degree ‘must be indicted specially, as aiders and abettors.* Where no such statute exists, in an indictment for murder, if several be charged as principals, one as principal perpetrator, and the others as aiding and abetting, it is not material which of them be charged as principals in the first degree, as having given the mortal blow; for the mortal injury given by any one of those present is, in contemplation of law, the injury of each and every of them.* An exception to the rule just stated, however, may be found in rape, in which assistants, though present, can be charged only as principals in the second degree.® § 260. Conviction of principal in the first degree not a condition precedent to trial of principal in second degree. If the actual perpetrator of a murder should escape by flight, or die, those present, abetting the commission of the crime, may be indicted as principals; and though the indictment should state the mortal injury was committed by him who is. absent or dead, yet, if it be substantially alleged that those who were indicted were present at the perpetration of the crime, and did kill and murder the deceased by the mortal injury so: done by the actual perpetrator, it shall be sufficient.’ So the party charged as principal in the second degree may be con- victed, though the party charged as principal in the first degree is acquitted.? And on an indictment for murder, the court may, v. State, 40 Tex. 67, 1874. [Vt.] 299, 1854. [N. J.] State v. Mairs, State v. Center, 35 Vt. 378, 1862. See infra, § 655, 22 Hawk. P. C. chap. 25, § 64; Mackalley’s Case, 9 Coke, 67 b; Fost. C. L. 345. 81 East, P. C. 348, 350; Rex v. Sterne, 1 Leach, C. L. 473. See Warden v. State, 24 Ohio St. 143, 1873; Rasnick’s Case, 2 Va. Cas 356, 1818; Huffman v. Com. 6 Rand. (Va.) 685, 1828. 4Infra, § 655; Wharton, Crim. Ev. § 102; Fost. C. L, 551; 1 East, P. C. 350 [Eng.] Rex v. Gutch, 1 Moody & M. 433; Rex v. Borthwick, 1 Dougl. K. B. 207. [Del.] State v. O’Neal, 1 Houst. Crim. Rep. (Del.) 58, 1863. [Miss.] McCarty v. State, 26 Miss. 1N. J. L. 458, 1846. [S. C.] State v. Fley, 2 Brev. 338, 4 Am. Dec. 583, 1815; State v. Putnam, 18 S. C. 175, 44 Am. Rep. 569, 1881. 5Infra, § 691. 1 State v. Fley, 2 Rice’s Digest, (S. C.) 104, 2 Brev. 388, 4 Am. Dec. 583, 1815. 2 [Eng.] Rex v. Taylor, 1 Leach, C. L. 360; Benson v. Offley, 2 Shower, K. B. 510, 3 Mod. 121; Reg. v. Walks, 1 Salk. 384; Rex v. Towle, Russ. & R. ©. C. 314, 1818; 3 Price, 145, 2 Marsh. 465; Archbald, Crim. Pl. Ev. & Pr. 6. [Ga.] Brown v. State, 28 Ga, 216, 1859. [Mo.] State v. Ross, 29 Mo. 32, 1859. ‘§ 261] ACCESSORYSHIP, AGENCY, MISPRISION. 333 in their discretion, try the principal in the second degree before the principal in the first degree. § 261. In misdemeanors all are principals. At common law, in misdemeanors, there are no accessories, all concerned, whether instigators or perpetrators, being principals, subject to be indicted as such.? 3 Boyd v. State, 17 Ga. 194, 1855. 13 Inst, 21, 488; 1 Hale, P. C. 233, 613; Dalton’s Country Justice, chap. 161; Fost. Col. 341; 12 Coke, 128; Co. ‘Litt. 57; 2 Hawk. P. C. chap. 29,§ 1; 4 BI. Com. 34; Cro. C. C. 49. [Eng.] Reg. v. Greenwood, 9 Eng. L. & Eq. Rep. 535, 2 Den. C. C. 453, 5 Cox, C. C. 521, 1850; Reg. v. Williams, Car. & M. 259, 1841; Rex v. Dyson, Russ. & R. C. CG. 523, "1820. {U. S.J] United States v. Mills, 7 Pet. 138, 8 L. ed. 636, 1838; United States v. Harries, 2 Bond, 311, Fed. Cas. No. 15,309, 1869; United States v. Hartwell, 3 Cliff. 221, Fed. Cas. ‘No. 15,318," 1869; United States v. Martin, 176 Fed. 110, 1910; Richard- son v. United States, 104 C. C. A. 69, 181 Fed. 1, 1910; United States v. Snyder, 3 McCrary, 377, 8 Fed. 805, 1881, 4 McCrary, 618, 14 Fed. 554, 1882; United States v. Morrow, 4 Wash. C. C. 733, Fed. Cas. No. 15,819, 1827. [Ark.] Sanders v. State, 18 Ark. 198, 1857; Burrow v. Hot Springs, 85 Ark. 396, 108 S. W. 823, 1908. [Del.] State v. Mc- Callister, — Del. 76 Atl. 226, 1909. [Ga.] Kinnebrew v. State, 80 Ga. 232, 5 S. E. 56, 1887; Loeb v. State, 6 Ga. App. 23, 64 S. E. 338, 1909; Southern Exp. Co. v. State, 6 Ga. App. 31, 64 S. E. 341, 1909; Harbuck v. Atlanta, 7 Ga. App. 441, 67 S. E. 108, 1910. [Ml.] Whitney v. Turner, 2 Ill. 253, 1836; Stevens v. People, 67 Ill. 587, 1873. [Ind.] Stratton v. State, 45 Ind. 468, 1876. [Ky.] Com. v. Burns, 4 J. J. Marsh. 182, 1829; Com. v. Major, 6 Dana, 293, 1838; Com. v. Bottom, 140 Ky. 212, 180 S. W. 1091, 1910. [Mass.] Com. v. Macomber, 3 Mass. 254, 1807; Com v. Nichols, 10 Met. 259, 43 Am. Dee. 432, 1845; Com. v. Dale, 144 Mass. 368, 11 N. E. 534, 1887. [Miss.] Williams v. State, 12 Smedes & M. 58, 1848. [Mo.] 2 Thus, the master who knowingly Schmidt v. State, 14 Mo. 1387, 1851. [Neb.] Skiles v. State, 85 Neb. 401, 123 N. W. 447, 1907. [N. H.] State v. Nowell, 60 N. H. 199, 1880. [N. J.] State v. Wilson, 79 N. J. L. 241, 75 Atl. 776, 1910. [N. Y.] Lowen- stein v. People, 54 Barb. 299, 1868; People v. Acritelli, 57 Mise. 574, 110 N. Y. Supp. 430, 1908. [N. C.] State v. Goode, 8 N. C. (1 Hawks) 463, 1822; State v. Barden, 12 N. C. (1 Dev. L.) 518, 1828; State v. Cheek, 35 N. C. (13 Ired. L.) 114, 1853; State v. Rowland Lumber Co. 153 N. C. 610, 69 S. E. 58, 1910. [S. C.] State v. Hunter, 79 S. C. 73, 60 S. E, 240, 1908. [Tenn.] Curlin v. State, 4 Yerg. 148, 1833. [Tex.] Ollre v. State, 57 Tex. Crim. Rep. 520, 123 S. W. 1116, 1909. [Vt.] St. Johnsbury v. Thompson, 59 Vt. 300, 59 Am. Rep. 731, 9 Atl 571, 1887. [Va.] Uhl v. Com. 6 Gratt. 706, 1849. All present aiding and abetting in a misdemeanor are principals. State v. Hunter, 79 S. C. 73, 60 S. E. 240, 1908. Aiders, abettors, and accessories, both before and after the fact, are principals. State v. Rowland Lum- ber Co. 153 N. C. 610, 69 S. E. 58, 1910. Absent person can be held liable only in those cases where he was in some manner implicated in the act committed. Ollre v. State, 57 Tex. Crim. Rep. 520, 123 S. W. 1116, 1909. All persons participating directly or as accessories in the violation of an ordinance are principals. MHar- buck v. Atlanta, 7 Ga. App. 441, 67 S. E. 108, 1910. In malicious mischief, all persons participating either actively or by standing by, counseling, or encourag- ing the act, are equally guilty. State v. McCallister, — Del. —, 76 Atl. 226, 1909. ° CRIMINAL LAW. [§ 261 334 permits his servant, while under his control, to retail liquor in a house belonging to the master, is himself principal in the offenses of keeping a tippling-house, and liable to the penalty.” If A counsel and encourage B to set fire to a malt house, and B attempt to set it on fire, both may be jointly indicted as principals in the misdemeanor of attempting to set the malt house on fire, although A was not present at the time of the attempt. A man who, though at a distance, is concerned in the furnishing of lottery tickets to another, to be sold in a place where their sale is prohibited, is guilty as principal in such sale.* In jurisdictions, also, where petit larceny is regarded either as a misdemeanor or as a minor felony subjected to a light penalty, all parties concerned in it are principals.’ An excep- tion, however, to the rule that in misdemeanors all parties con- cerned are principals is taken in liquor cases, where it is held that a vendee is not indictable under the statutes; ° and, gen- erally, accessories to police offenses are not indictable.” In negligences, also, there can be no accessories, since accessoryship is conditional on joint intent. § 262. And so as to treason at common law. The old text writers above cited unite in holding that in treason, also, there are no accessories! Under the Constitution of the United States, however, it has been argued that the reason of the common law doctrine that in treason all are principals fails, There are no accessories before the fact in misdemeanors. Com. v. Bot- tom, 140 Ky. 212, 130 8S. W. 1091, 1910. Indictment for misdemeanor being joint or several, anyone of the de- fendants may be convicted by proof that he personally committed the offense, or procured, counseled, aid- ed, or abetted therein. Loeb v. State, 6 Ga. App. 28, 64 S. E. 338, 1909. Rule applies to all misdemeanors alike, whether misdemeanors at com- mon law or made so by statute. State v. Lee, 228 Mo. 480, 128 8. W. 987, 1910. Rule is applicable to all statu- tory misdemeanors, regardless of whether aiders and abettors are pro- vided for or not. United States v. Martin, 176 Fed. 110, 1910. 2Com. v. Major, 6 Dana, 293, 1838; infra, §§ 287, 1794; supra, § 174. 3 Reg. v. Clayton, 1 Car. & K. 128, 1843. 4Com. v. Gillespie, 7 Serg. & R. 469, 10 Am. Dec. 475, 1822. 5[Eng.] lLasington’s Case, Cro. Eliz. 750. [Mo.] State v. Hurt, 7 Mo. 321, 1840. [N. Y.] Ward v. People, 3 Hill, 395, 1842, 6 Hill, 144, 1843; Shay v. People, 22 N. Y. 317, 1860. [N. C.] State v. Goode, 8 N. C. (1 Hawks) 463, 1822. In North Carolina the rule is ex- tended to all thefts. State v. Gas- ton, 73 N. C. 98, 21 Am. Rep. 459, 1875 6 Infra, § 1838. 7 See supra, § 29. 1See 1 Hale, P. C. 233, 613; 3 Co. Inst. 138; though see 2 Hale, P. C. 223. § 263] ACCISSORYSHIP, AGENCY, MISPRISION. 335 and therefore that a person counseling or advising treason against United States is an accessory before the fact,’ though it is hard to conceive, in an executed treason, of an accessoryship: before the fact, that is not in itself a substantive act of treason. The principle, on the other hand, is said by an elementary writer of much learning, to be in force in the several states; and he consequently argues that, in treason against the state of Virginia, accessories do not exist.2 But where the Constitution provides, as does the Constitution of the United States, that. treason shall consist only in levying war against the State, or adhering to its enemies, accessoryship after the fact, which contains neither the element of levying war nor that of adhering to a public enemy, which is construed to mean exclusively a foreign power, cannot be claimed to constitute treason.* IV. Acczssortes Berorr tHe Factr.! § 263. Commanding and counseling constitutes acces- soryship before the fact. An accessory before the fact is one who, though absent at the commission of the felony, pro- cures, counsels, or commands another to commit said felony sub- sequently perpetuated in consequence of such procuring, counsel,. or command.” 2 United States v. Burr, 4 Cranch, 472, 501, 2 L. ed. 685, 699, 1808; though see United States v. Hanway, 2 Wall. Jr. 139, Fed. Cas. No. 15,299, 1851. Re charge.—2 Wall. Jr. 134, Fed. Cas. No. 18,276. 3 Davis, Crim. Law, 38. 2159. 4See infra, 2139. 1Search Note: 12 Cyc. 190; 1 Ene. Pl. & Pr. 68, 14 Century Dig. col. 697, §§ 87-91, 6 Decen. Dig. 198, § 68, Am. Dig. § 68. As to child as accessory in theft, see note in 36 L.R.A. 202. For indictments under this head, see Wharton, Precedents, Title Ac- cessory. 21 Hale, P. C. 615. [Eng.] Reg. v. Manning, 2 Car. & K. 887, 4 Cox, C. C. 81, 1 Den. C. C. 467, 13 Jur. 962, 19 L. J. Mag. Cas. N. 8. 1, Infra, § To constitute such an accessory, it is necessary Temple & M. 155; Rex v. Russell, 1 Moody, C. C. 356; Reg. v. Brown, 14 Cox, C. C. 144; Reg. v. Taylor, L. R. 2 C. C. 147, 18 Cox, C. C. 68, 44 L. J. Mag. Cas. N. S. 67, 32 L.. T. N. S. 409, 23 Week. Rep. 616; M’Daniel’s Trial, 19 How. St. Tr. 746, 789; Reg. v. Robinson, 4 Fost. & F. 43; Reg. v. Pratt, 4 Fost. & F. 315. [Canada] Reg. v. Hodge, 2 Can. Crim. Cas. 350; Reg. v. Campbell, 2 Can. Crim. Cas. 357; Reg. v. Graham, 2 Can. Crim. Cas. 388; Reg. v. Roy, 3 Can. Crim. Cas. 472; Reg. v. Dowd, 4 Can. Crim. Cas. 170; Rex v. Rice, 5 Can. Crim. Cas. 509, 4 Ont. L. Rep. 223; Reg. v. Gregory, L. R. 1 C. C. 79, 36 L. J. Mag. Cas. N. S. 60, 16 L. T. N. 8. 388, 15 Week. Rep. 774, 10 Cox, C. C. 459; Reg. v. Lloyd, 19: Ont. Rep. 352; Reg. v. King, 20 U. C. C. P. 247; Reg. v. Esmonde, 26 U. C. Q. B. 152; Reg. v. Curtley, 27 336 CRIMINAL LAW. [§ 263 that he should have been absent at the time when the felony was committed ; if he was either actually or constructively pres- ent, he is, as has been seen, principal. The accessory is liable for all that ensues as incident to the execution of the unlawful act commanded; as, for instance, if A command B to beat C so as to inflict grievous bodily harm, and he beat C so that C dies, A is accessory to the murder, if the offense be murder in B. 618; Reg. v. Smith, 38 B. 281; Reg. v. Williams, 2 Q. B. 462. [Fed.] United States v. White, 5 Cranch, C. C. 38, Fed. Cas. No. 16,675, 1836; Pearce v. Oklahoma, 55 C. C. A. 550, 118 Fed. 425. [Ala.] Hughes v. State, 12 Ala. 458, 1847; Griffith v. State, 90 Ala. 583, 8 So. 812, 1891. [Cal.] People v. Kraker, 72 Cal. 459, 1 Am. St. Rep. 65, 14 Pac. 196, 1887. [Ga.] Hately v. State, 15 Ga. 346, 1854; Howard v. State, 109 Ga. 187, 34 S. E. 330, 1899. [Tll.] Cross v. Peo- ple, 47 Ill. 152, 95 Am. Dec. 474, 1868 [Ind.] Sage v. State, 127 Ind. 15, 26 N. E. 667, 1890. [Ky.] Able -v. Com. 5 Bush, 698, 1869. [Miss.] Keithler v. State, 10 Smedes & M. 192, 1848; George v. State, 39 Miss. 570, 1860; Josephine v. State, 39 Miss. 613, 1860; Unger v. State, 42 Miss, 642, 1869. [Neb.] Casey v. State, 49 Neb. 403, 68 N. W. 643, 1896. [Nev.] State v. Chapman, 6 Nev 320, 1871; State v. Hamilton, 13 Nev. 386, 1878; State v. Ah Kung, 17 Nev. 361, 30 Pac. 995, 1883. [N. J.] State v. Mairs, 1 N. J. L. 453, 1795; State v. Wyckoff, 31 N. J. L. 65, 1864. [N. Y.] People v. Lyon, 99 N. Y. 210, 1 N. E. 673, 5 Am. Crim. Rep. 10, 1885; People v Katz, 23 How. Pr. 98, 1862; People v. Hall, 57 How. Pr. 342, 1879; Norton v. People, 8 Cow. 137, 1828. [Okla.] Pearce v. Territory, 11 Okla. 438, 68 Pac. 504, 1902. [S. C.] State v. Sims, 2 Bail. L. 29, 1830. [Tex.] McKeen v. State, 7 Tex. App. 634, 1880; Phillips v. State, 26 Tex. App. 228, 8 Am. St. Rep. 471, 9 S. W. 557, 1888. [Va.] Hatchett v. Com. 75 Va. 925, 1882. Accessory cannot exist without a principal (State v. Bailey, 63 W. Va. 668, 60 S. E. 785, 1908), and furth- er,—there can be no accessory until U. C. Q. U. C. Q. U. C. ta there has been an offense commit- ted (Figaroa v. State, 58 Tex. Crim. Rep. 611, 127 S. W. 193, 1910). At common law, one who is an accessory after the fact may also be an accessory before the fact. State v. Naughton, 221 Mo. 398, 120 S. W. 53, 1909. : Aiding and abetting in housebreak- ing is established by showing accused advised the crime, agreed to assist in doing it, or aided in removal of the property obtained. Vance v. Com. — Ky. —, 115 8S. W. 774, 1909. Counseling or procuring commis- sion of a ciime by threats, promises, etc., when they are sufficient to pro- voke the offense. State v. Scott, 80 Conn. 317, 68 Atl. 258, 1907. Person who instigates commission of a crime but who is not actually or constructively present when the deed is done, is an accessory before the fact. State v. Bailey, 63 W. Va. 668, 60 S. E. 785, 1908. Persons counseling commission of a crime, but who are not present at the time when the criminal act is done, are accessories before the fact. Vogel v. State, 188 Wis. 315, 119 N. W. 190, 1909. In misdemeanors all are principals. Com. v. Bottom, 140 Ky. 212, 130 S. W. 1091, 1910. See also supra, § 261, footnote 1. One whose conduct would consti- tute him an accessory before the fact if the offense were a felony, is a principal. Richardson v. United States, 104 C. C. A. 69, 181 Fed. 1, 1910; Skiles v. State, 85 Neb. 401, 123 N. W. 447, 1907. Indictment and punishment.—An accessory before the fact at common law may be charged directly with the commission of the felony as principal, under statutes abolishing common- law distinctions between principals § 263] ACCESSORYSHIP, AGENCY, MISPRISION. 337 B.2 So, if A command B to burn the house of C, and in doing so the house of D is also burnt, A is accessory to the burning of D’s house.* And if the offense commanded be effected, al- though by different means from those commanded, as, for instance, if J W hire J S to poison A, and instead of poisoning him he shoot him, J W is nevertheless liable as accessory.” As we have already seen, the common law has recently been changed in several states so as to treat accessories before the and accessories. [Minn.] State v. Whitman, 103 Minn. 92, 114 N. W. 363, 14 A. & E. Ann. Cas. 309, 1907. [Miss.] McCoy v. State, 91 Miss. 257, 44 So. 814, 1907; Moore v. State, 91 Miss. 250, 124 Am. St. Rep. 652, -44 So. 817, 1907. [Nev.] State v. Ah Kung, 17 Nev. 361, 30 Pac 995, 1888. [Tex.] McKeen v. State, 7 Tex. App. 634, 1880. Meaning of the word “command” will be more fully considered in note to § 265. See also Ex parte Wil- loughby, 14 Nev. 451, 1879; State v. Mann, 2 N. C. (1 Hayw.) 4, 1814. Supplying implements to one who makes a bad use of them does not render the person supplying them responsible where he acts innocently. State v. Scott, 80 Conn. 317, 68 Atl. 258, 1907. One wrongfully supplying imple- ments to a known criminal, with the intent that they shall be used for the accomplishment of a specific criminal purpose, thereby becomes a party to such offense when commit- ted. Ibid. Supplying medicine for abortion— Not accessory to death,—A supplies B with corrosive sublimate, knowing that B means to use it to procure her own abortion, but being unwil- ling that she should take the poison, and giving it to her because she threatened to kill herself if he did not. B does so use it, and dies. Even if B is guilty of murdering ‘herself, A is not an accessory before the fact to such murder. Stephen’s Digest Crim. Law art. 40, 5th ed. citing Reg. v. Fretwell, Leigh & C. ©. C. 161, 31 L. J. Mag. Cas. N. S. 145, 8 Jur. N.S. 466, 6 L. T. N.S. Crim. L. Vol. I.—22. 333, 10 Week. Rep. 545, 9 Cox, C. C. 152, 1862. Compare: Rex v. Cooper, 5 Car. & P. 535, 1833; Rex v. Gordon, 1 ao C. L. 515, 1 East, P. C. 312, Question as to the place where the accessory is liable is discussed infra, §§ 288, 323, 324. See [Ky.] Dorsey v. Com. 138 Ky. L. Rep. 359, 17 S. W. 183, 1891. [Tenn.] State v. Ayers, 8 Baxt. 96, 1874. [Tex.] Blain v. State, 24 Tex. App. 626, 7 S. W. 239, 1888. Under statute abolishing distinc- tion between accessories and princi- pals, and making all principals who are concerned in the commission of offense, one advising a mother to withhold food from her child, which she does causing the child to die from starvation, may be indicted as a principal. State v. McFadden, 48 Wash 259, 14 L.R.A.(N.S.) 1140, 93 Pac. 414, 1908. In Alaska, where the distinction between principal and accessory be- fore the fact is abolished, one who aids and abets another in the com- mission of a crime may be indicted and convicted as a principal. Ros- encranz v. United States, 83 C. C. A. 634, 155 Fed. 38, 1907. 34 Bl. Com. 37; 1 Hale, P. C. 617; Sage v State, 127 Ind. 15, 26 N. E. 667, 1890; but one cannot be con- victed as an accessory where there is no evidence that the principal committed the crime charged. Arm- strong v. State, 28 Tex. App. 526, 13 S. W. 864, 1890. 4Tbid.; Fost. C. L. 370. 5Ibid. 369; State v. Tazwell, 30 ane Ann. 884, 1878. See infra, § 338 CRIMINAL LAW. [§ 263 fact as principals.© In many jurisdictions, however, the offenses continue distinct, so that acquittal as a principal does not bar a prosecution as accessory.” § 264. Several instigators may be combined. As has been elsewhere noticed,’ cases frequently occur in which two or more instigators co-operate in procuring one or more agents to act in the perpetration of 6 [Ark.] Atterberry v. State, 56 Ark. 515, 20 S. W. 411, 1892. [Cal.] People v. Rozelle, 78 Cal, 84, 20 Pac. 36, 1889. [Idaho] Territory v. Guthrie, 2 Idaho, 4382, 17 Pac. 39, 1888. [Ill.] Spies v. People, 122 Ill. 1, 3 Am. St. Rep. 320, 12 N. E. 865, 17 N. E 898, 6 Am. Crim. Rep. 570, 1887. [Tex.] Watson v. State, 21 Tex. App. 598, 1 S. W. 451, 17 S. W. 550, 1886. See also supra, § 239. 7See Wharton, Crim. Pl & Pr. § 458; Pettes v. Com. 126 Mass. 242, 1879; State v. Buzzell, 58 N. H. 257, 42 Am. Rep. 586, 1878. The complication in the law of ac- cessoryship is in some sense attrib- utable to the circumstance that it involves one of the most difficult metaphysical problems. If the will is free, how can we punish the in- stigator of a crime as equally guilty with the perpetrator? The latter, it is assumed, acted with perfect freedom; we may therefore punish the instigator for giving bad coun- sel, as we would punish the publish- ers of bad books, but we cannot charge him with doing an act at whose commission he was not pres- ent, which he had no power to order, but whose performance is imputable to the free and independent will of another person. On the other hand, if the will is necessitated, we certain- ly cannot punish the agent whose action is determined by another But, illogical as it may be, we pun- ish both. Each, we say, is respon- sible for the act, and by no other view could public justice be sub- served. Unless the perpetrator is responsible, there is no law by which injuries can be redressed; unless the instigator is responsible, there is no a crime. Such cases may be law by which right can be vindicated. In other words, if the perpetrator is not made responsible, there can be no retribution for wrong acts; if the instigator is not made respon- sible, there can be no retribution for wrong agents. In the one case there would be no responsibility for con- duct, in the other there would be no responsibility for impulse. We therefore punish the instigator as if he were free while the perpetrator was coerced; while we punish the perpetrator as if he were free and the instigator did not exist. Nor is this strange, for the same solutiom is accepted by us in all other lines of moral judgment. We condemn the tempted, when he yields, on the ground that he yields voluntarily; we condemn the tempter on the ground that he caused the yielding. Sir W. Hamilton treats this as one of the illustrations of the practical harmony between necessity and free: will. If we reject determinism, there is no law by which man can be ruled; if we reject free agency, there is no man to be ruled by the law. And in our doctrine as to principal and accessory, we treat the principal both as free and as ceorced; as free when we prosecute him individually, as. coerced when we prosecute his insti- gator. The topic, in this connection,. has been discussed by Volkmann, Grundriss der Psychologie, 1856, pp. 374, 397; Wahlberg, das Princip der Individualisierung in der Strafrechts- pflege; and by Drobisch, in die mor- alische Statistik und die menschliche Willensfreiheit, p 28. See Geyer in Holzendorff’s Strafr. ii. 340, who takes the necessitarian side of the controversy. 19 Cent. L. J. 205. § 205] ACCESSORYSHIP, AGENCY, MISPRISION. 339 classified as follows:? (1) The instigators may act concurrently with the perpetrator. In such case the ordinary law of con- spiracy applies. The parties must be intentional participants in a common unlawful design. It is not enough that they are casual, incidental co-operators. To charge a party with an intentional co-operation, he must know that the others are working with him for the same criminal purpose, and he must contribute something to the common effort. If this is not done, he cannot be regarded as an instigator, or accessory before the fact. (2) Instigation may not be concurrent, but successive. In other words, A may instigate B to instigate C.2 In such case, supposing the causal relation be established, and C is really induced to act by A, through B’s agency, A is as much responsible as if he induced C to act by letter. When procurement is by an intermediate agent, the accessory leaving it to such agent to find a perpetrator, it is not necessary that the accessory should be cognizant of the name of the perpe- trator.* § 265. Must be causal connection. The procurement need not be tactual, it being sufficient if one or more persons be- come the medium through whom the work is done.’ It makes no matter how long a time or how great a space intervenes be- tween the advice and the consummation,” provided that there is an immediate causal connection between the instigation and the act.® In cases, however, where the instigation consists in the 2See Holtz. Strafr. ii. 377. 8 McDaniel’s Case, Fost. ©. L 121; Com. v. Glover, 111 Mass. 395, 1873. 4Rex v. Cooper, 5 Car. & P. 535, 1838; Reg. v. Williams, 1 Den. C. C. 39, 1 Car. & K. 589, 1844. 1 Fost. C. L. 125; Somerset's Case, cited in 19 How. St. Tr. 804; Rex v. Cooper, 5 Car. & P. 535, 1833. Supra, § 264. 2See infra, § 325. 8 [Eng.] Reg. v. Sharpe, 3 Cox, C. C. 288, 1849; Reg. v. Blackburn, 6 Cox, C. Cc. 333, 1854. [Mass.] Com. v. Glover, 111 Mass. 395, 1873. [Va.] Oliver v Com. 77 Va. 590, 1880. Saunder’s Case, 2 Plowd. 475, 1576, 1 Hale, P. C. 431, as condensed by Sir James F. Stephen (Stephen’s Crim. Law Digest 5th ed. art. 42): “A advises B to murder C (B’s wife) by poison. B gives C a poisoned apple, which C gives to D (B’s child). B permits D to eat the apple, which it does, and dies of it. A is not ac- cessory to the murder of D.” “This decision,” adds Sir James F. Stephen, “is of higher authority than Foster’s dicta, and marks the limit to which they extend, if it does not throw doubt upon them ” The proper solution in such case is that A is indictable for an attempt to kill C; but that there is no causal connection between his act and the killing of D. See Wharton, Neg. §§ 90, 91; supra, §§ 202, 203. Modes of Instigation.— —“Procure”’ is the first term used in the ordinary definition of our old accessoryship 340 CRIMINAL LAW. [§ 265 furnishing aid, it is not necessary that the specific materials or machinery contributed by the accessory should have been used before the fact. The most obvious mode of procuring is by hiring. The instigator takes the agent into his service, and engages him for a re- ward to commit the proposed crime. The “procuring,” however, must be before the act. It has been much discussed whether promising a re- ward to a person already resolved on the act constitutes an instigation. But the better opinion is that it does in cases where the perpetrator is strengthened in his purpose by the reward. — “Counseling,” to come up to the definition, must be special. Mere general counsel, for instance, that all property should be regarded as held in common, will not constitute the party offering it accessory before the fact to w larceny; “free-love” publi- cations will not constitute their au- thors technical parties to sexual of- fenses which these publications may have stimulated. Several youthful highway robbers have said that they were led into crime by reading Jack Sheppard; but the author of Jack Sheppard was not an accessory be- fore the fact to the robberies to which he thus added an impulse Under the head of “counsel” may be included advice and instruction as to the modes of committing particular crimes, e. g., pocket picking. Gen- eral instruction, it is true, could not be “counseling” in the sense before us; though it is otherwise with spe- cial instructions as to the manage- ment of a particular case. Persuad- ing and tempting to a particular crime fall under this head. The modes in which this kind of counsel- ing may be manifested are numerous. ‘The counsel need not be exclusively in words. It may consist, at least in part (e. g., Faust and Mephisto- pheles), in the exhibition of some ob- ject of desire. It is possible, also, to eonceive of cases in which there is no immediate communication be- tween the seducer and the seduced. Third persons may be used as inno- cent or compulsory go-betweens. In- fra, § 270 —“Command” is a term borrowed from the Roman Mandatum, which is frequently used in this connection. Viewing the term nakedly, it de- scribes few cases of accessorvship. Men are rarely to be found who would commit a crime because ‘“‘com- manded” to by another, unless they are under special obligations to such other. Among such obligations we may primarily notice that of wife to husband, which the law recog- nizes in some cases as a defense to the wife when on trial. Next to this may be enumerated the obligation of child to parent, or servant to master, or subordinate to superior. These obligations do not constitute a legal excuse unless the perpetrator acts under compulsion—vis compulsiva— or unless the command generates in him an error of fact which induces him to regard the act as innocent. Military command, also, may be an excuse to the subaltern, when he acts bona fide under the command, and not in satisfaction of any special private malice of his own. Supra, § 124. A police officer is in the same way protected, provided he acts within the range of his office, and executes what he believes to be an official duty for a public end. It is otherwise when he knowingly exe- cutes a command issued for extor- tionate ‘or other unlawful purposes. A command need not be in words. It may be in signs. See Holtzen Strafr. ii. 353. —“Advising” may be by a process of deception, by a misrepresentation of facts. A contrives to induce B to believe he has received an in- jury from C, which it is B’s duty to avenge by taking C’s life. Suppos- ing A to act in this way with the malicious purpose of killing C by the agency of B, and then gpecifical- ly to advise the killing of C, A is guilty at common law as accessory before the fact, or, under our recent statutes, as principal. 9 Cent. L. J. 204, “Suppose, for instance, A tells B of facts which operate as a motive § 266] ACCESSORYSHIP, AGENCY, MISPRISION. 341 by the principal.* Nor does it matter whether the instigator counseled the perpetrator directly or through an intermediate agent. § 266. Silent acquiescence is not counseling. Counsel- ing is said in an old book to be either direct or indirect; direct consisting in express counsels, indirect in the intimation of approval or desire.’ But concealment of the knowledge that a felony is about to be committed does not constitute such acces- soryship,? nor does mere momentary acquiescence in the pro- posed felonious plan.* But any specific contribution of advice, afterward acted on, constitutes the offense. It is necessary, as has been seen, that the solicitation be made either directly or indirectly to the person committing the act.* But knowingly to invite a person to a place so that he may be there murdered constitutes, when he is murdered accordingly, the offense.® Accessoryship cannot be based on negligence.® to B for the murder of C. It would be an abuse of language to say that A had killed C though no doubt he has been the remote cause of O’s death. In Othello’s case, for instance, I am inclined to think that Iago could not have been convicted as accessory before the fact to Des- demona’s murder, but for the single remark: ‘Do it not with poison, strangle her in her bed.’” 3 Ste- phen, History Crim. Law, 8. 4State v. Tazwell, 30 La. Amn. 884, 1878. 11 Hale, P. C. 616. Mere acquiescence in the commis- sion of a crime, without active par- ticipation as an actor by counseling, aiding, and abetting, does not render the person liable criminally. Moore v. State, 4 Okla. Crim. Rep. 212, 111 Pac. 822, 1910; Chandler v. State, — Tex. Crim. Rep. —, 131 8. W. 598, 1910. 2[Ky.] Levering v. Com. 132 Ky. 666, 186 Am. St. Rep. 192, 117 8. W. 253, 19 A & E. Ann. Cas. 140, 1909. [Mo.] State v. Crawford, 151 Mo. App. 402, 132 S. W. 43, 1910. [Tex.] Noftsinger v. State, 7 Tex. App. 301, 1880; Rucker v. State, 7 Tex. App. 549, 1880; Alford v. State, 31 Tex. Crim. Rep. 299, 20 S. W. 553, 1892; That sym- Chandler v. State, — Tex. Crim. Rep. —, 131 S. W. 598, 1910. 81 Hale, P. C. 616, 2 Hawk. P. C. chap. 29, § 23; supra, § 246. Prize fight—Death—Stakeholder not accessory before the fact to hom- icide—B and C agree to fight a prize fight for a sum of money; A, knowing their intention, acts as stakeholder. B and C fight, and C is killed. A is not present at the fight, and has no concern with it except being stakeholder. Even if in such a case there can be an accessory before the fact, A is not accessory before the fact to the manslaughter of C. Ste- phen’s Digest, Crim. Law, 5th ed. art. 40, citing Reg. v. Taylor, L. R. 2 C. C. 147, 13 Cox, C. C. 68, 44 L. J. Mag. Cas. N. S. 67, 32 L. T. N. S. 409, 28 Week. Rep. 616, 1875. See other cases on prize fights, cited in- fra, § 497. 4Reg. v. Blackburn, 6 Cox, C. C. 333, 1854. 5 Reg. v. Manning, 2 Car. & K. 887, Temple & M 155, 1 Den. C. C. 467, 19 L. J. Mag. Cas. N. S. 1, 18 Jur. 962, 4 Cox, C. C. 31, 1849. 6 Supra, § 166. Overborne by will of instigator.— When the question of punishment comes up, it is not unimportant to 342 CRIMINAL LAW. (§ 266 pathy does not constitute co-operation has been already seen.” § 267. And countermanded advice does not constitute offense. If the advice of the accessory be countermanded before it operates in any way, he is relieved from responsibility ;* and if an instigator, when withdrawing, not merely expresses his disapproval of the crime, but takes all the measures in his power to prevent its consummation, and such measures fail be- cause of casus, or some new intermediate impulse, then his criminality ceases. But it does not cease simply because, after starting the ball, he changes his mind, and tries, when too late, to stop it. To emancipate him from the consequences, not onlr must he have acted in time, and done everything practicable to prevent the consummation, but the consummation, if it takes place, must be imputable to some independent cause. On the other hand, it is plain that when the instigator changes his mind, after having gone as far as an attempt, and abandons a further prosecution of the design, he is indictable for the attempt. It has been argued that if the frustration of the attempt is due inquire to what extent the perpe- trator was overborne by the superior will of the instigator, and how far the latter is to be considered as the exclusive contriver of the crime. As has been well said, when a bandit whose trade is assassination offers himself for this purpose to a rich grandee, the case is very different from that of an unsophisticated and comparatively innocent agent who is led by the protracted and subtle wiles of a Mephistopheles into a path of guilt he never would otherwise have approached. Geyer, in Holtz. Strafr. ii. 353. A distinction, also, is to be made between a single hasty and illeonsidered word (as was al- leged by Queen Elizabeth to have been the case with her order for the execution of Queen Mary), and a chain of cool and deliberate direc- tions. But these distinctions do not go merely to the question of degree of punishment. The amount of po- tency with which the instigation was applied has much to do with de- termining whether there was really a causal relation between the insti- gation and the criminal act. The former may have been merely a strong expression of enmity, or a strong opinion as to the right to do a particular thing, without any in- tention that the criminal act should result from the expression. If so, the criminal act is not imputable to the alleged instigator. 9 Cent. L. J. p. 184, 1879. 7 Supra, § 249. 1Supra, § 226; 1 Hale, P. C 618. Abandonment of criminal purpose after having undertaken its execu- tion and after performance of some overt act towards its accomplish- ment, associates thereafter complet- ing undertaking, relieves one of re- sponsibility as a principal. Schwartz v. State, 55 Tex. Crim. Rep. 36, 114 S. W. 809, 1908. A man accused of being an acces- sory to a murder by counseling and advising two persons to commit the crime, cannot relieve himself of re- sponsibility by proof that he coun- termanded the order to one of the parties, without showing that the other was also present at the time. State v. Kinchen, 126 La. 39, 52 So. 185, 1910. § 268) ACCESSORYSHIP, AGENCY, MISPRISION. 343 to his interposition, consequent upon his repentance, he is relieved from all prosecution. But it is hard to see how his repentance, subsequent to the attempt, can cancel his responsi- bility for the guilt of the attempt; though it would be otherwise if he intervened prior to the attempt.” § 268. Accessories not liable for collateral crimes. While an accessory before the fact (or instigator) is respon- sible for all crimes incidental to the criminal misconduct he counsels,’ or which are among its probable consequences, it is otherwise as to collateral crimes not among such incidental and probable consequences.” 29 Cent. L. J. p. 203, 1879. For further views, see supra, § 226. 1See supra, § 157; Stephen’s Di- gest Crim. Law, 5th ed. art. 42; Reg. v. Gaylor, 7 Cox, C. C. 253, Dears. & B. C, C. 288, 40 Eng. L. & Eq. Rep. 556, 1856. Instigation to robbery—Homicide resulting—Accessory before the fact. —Thus, where A instigates B to rob C, and B murders C in carrying out the robbery, A is accessory before the fact to the murder. State v. Davis, 87 N. C. 514, 1875. —To same effect, see [Cal.] People v. Vasquez, 49 Cal. 560, 1875. [Ind.] Stipp v. State, 11 Ind. 62, 1858. [Ohio] Stephens v. State, 42 Ohio St. 150, 1884, citing United States vy. Ross, 1 Gall. 624, Fed Cas. No. 16,196, 1814. 2Supra, § 252; Fost. C. L. 370; 1 Hale, P. C. 687; 3 Co. Inst. 51. {Mich.] People v. Knapp, 26 Mich. 112, 1872. [Ohio] Stephens v. State, 42 Ohio St. 150, 1884. [W. Va.] Watts v. State, 5 W. Va. 532, 1867. View of German authorities—The question-in the text is considered by me in the Central Law Journal for 1879, where the views of the later German authorities are given. From this I condense the following: Suppose the perpetrator, under- taking to execute the purpose of the instigator, commits acts, while per- forming his mandate, in excess of such purpose. Is the instigator re- sponsible for the excess? If we relied solely on the analo- gies from the civil side of the law, we would say that the principal or master is liable for all such acts when done in the discharge of the agency or service, though these acts were expressly forbidden by the prin- cipal or master. This rule holds good on the criminal side of the law, so far as concerns indictments for negligence. But it cannot be extend- ed to indictments for malicious acts. A counsels B to commit a specific crime. B, in committing this crime, maliciously commits another collat- eral crime, not within the scope of A’s counsel, and, it may be, forbid- den by A. A cannot, at common law, be convicted of doing intention- ally and maliciously this collateral act, which he never intended, and which he had even forbidden. Of negligence in putting these powers in his agent’s hands, or of negligence as incidental to the working of the illegal instrumentality he put in mo- tion, he may be convicted, but not of designing something he did not de- sign. Of negligence he may be cer- tainly convicted, if the crime, though unforeseen by him, is incidental to one procured by him; as when he sends a servant out to steal property in the night, and the servant, in striking a match, sets fire to the house. Quantitative variations in the mode of executing a crime are not to be viewed as excesses in the sense above stated. A homicide, for in- stance, is imputable to the instiga- tor, though executed with a cruelty in excess of that command. So, if A directs B to inflict on C an injury whose probable consequences will be CRIMINAL LAW. [§ 269 344 § 269. Relative guilt of accessory and principal. The question of the relative guilt of the accessory before the fact and the instigator has been elsewhere discussed.’ It is argued on the one side that instigation, from the nature of things, involves more design, premeditation, coolness, and intelligence than does perpetration. The instigator bears to the perpetrator the relation of the seducer to the seduced. The instigator would havé perpetrated the crime anyhow; the perpetrator would not have perpetrated it without the instigation. To this it is answered that instigation does not necessarily involve pre- meditation, but that premeditation is necessarily involved in perpetration.* Instigation may consist in the expression of a momentary petulant desire, as was the case with Henry II. when saying he wished he was rid of Becket, or of advice which the adviser himself never expected to have embodied in action. Perpetration, on the other hand, when in obedience to a plan previously entertained, involves not merely premeditation, but action as a realization of this premeditation. Not only is the criminal design harbored, but it is unflinchingly matured and executed. Nor is the relation of instigator and perpetrator always that of seducer and seduced. The relation may be that of confederate with confederate. Each enters into the partner- ship of crime; and the chief difference between the two is that the instigator is not present at the act which the perpetrator commits. The perpetrator may be as much the seducer of the instigator, as the instigator of the perpetrator. Henry’s barons, death, A as we have seen, is as chargeable, if death ensues, as is B, with the homicide. Supra, § 252. As to minor crimes, instigation to commit a greater crime incloses in- stigation to commit a lesser crime. If A, for instanee, counsel & to com- mit highway robbery, which results in larceny, A is accessory before the fact to the larceny. But it is other- wise as to minor offenses not in- cluded in the major. Thus, coun- seling to commit larceny would not involve accessoryship to the offense of cheating by cards, though part of the same transaction. Accessory before the fact is not liable for any malicious excursions made outside of the range of the employment, by the perpetrator. It should be remembered, however, that the instigator may often use ambigu- ous terms: “Get me this thing any- how;” or, “Bring me this man alive or dead.” If so, the instigator is chargeable with any misconstructions the ambiguity may produce. It is in this sense that James II. and Louis XIV. are chargeable with instigation in the attempted assassination of William III. 1See 9 Cent. L. J. p. 183, 1879. Thid. p. 6,°1885. 2See Oliver v. Com. 77 Va. 590, el Cook v. State, 14 Tex. App. $6, § 271) ACCESSORYSHIP, AGENCY, MISPRISION. 345 in taunting him with Becket’s insults, and offering themselves as the avengers of those insults, may have been the tempters who led Henry to utter the fatal wish, and thus have been the original planners as well as the final perpetrators of the crime to which he gave a hasty intermediate assent. Insti- gation, therefore, does not necessarily involve origination.* The accessory before the fact may be really the agent of the princi- pal. To this it is rejoined that what we have to do with is instigation in its logical sense, as the origination of a crime to be effected through another; and that this involves a double criminality, that of the instigator himself and that of the perpe- trator; that the instigator is in this respect a free agent, bringing into effect an act doubly criminal as infringing the rights of the object of the crime, and as steeping in guilt its agent. At common law, the assumption is that the guilt of the perpetrator (principal) is imputable to the instigator (accessory before the fact), and hence the conviction of the latter is to depend on the conviction of the former, as a condition precedent, and must be of the same grade of offense. Where under recent legislation, however, the instigator (accessory before the fact) is treated as principal, there principal and accessory before the fact (or instigator and perpetrator) may, as we will presently see more fully, be convicted of different grades.* § 270. Assistance must be rendered knowingly and really. The assistance must be rendered knowingly. It is not. necessary, indeed, that the principal should know all the conditions of the help rendered to him, but it is necessary for the accessory to know the guilty purpose he contributes to help. The chief of a plot, for instance, is not bound to know a co- operator in order to implicate the latter as accessory; but the co-operator cannot be convicted unless he is shown to have been acquainted with the character of the plot.” § 271. Detectives not accessories. A detective entering apparently into a criminal conspiracy already formed for the purpose of exploding it is not an accessory before the fact. For 3 Reg. v. Tuckwell, Car. & M. 215, 1Supra, § 190, where the cases are 1842; Keithler v. State, 10 Smedes given; and see ‘Wharton, Crim. Ev. &M. 192, 1848. § 440, 1 Enc.—Ev. 78, 4 Enc, Ev. 630. 4Infra, §§ 272, 276. [IIL] Price v. People, 109 Ill. 109, 1 Supra, § 166. 1883. [Iowa.] State v. Brownlee, 84 346 CRIMINAL LAW. [§ 271 it should be remembered that while detectives, when acting as decoys, may apparently provoke the crime, the essential element of dolus, or malicious determination to violate the law, is want- ing in their case. And it is only the formal, and not the sub- stantive, part of the crime that they provoke. They provoke, for instance, in larceny, the asportation of the goods, but not the ultimate loss by the owner. They may be actuated by the most unworthy of motives, but the animus furandi in larceny is not imputable to them; and it is in larcenous cases or cheats that they are chiefly employed. They may, however, become liable for negligence in their conduct, when it leads to injuries which prudence on their part might have avoided; as when they instigate an ambush which results in a homicide; * or when the checks they look forward to as likely to explode a plot, whose execution they advise, are not properly applied. Nor should it be forgotten that if one who silently watches a crime until it ripens is an accessory, then the guilt of accessoryship falls on a parent who watches anxiously but silently a child’s course until the period when interposition and warning would be likely to be successful, and on a specialist in science, who, suspecting that there may be some wrongful purpose in preparation in a neighboring laboratory, forbears to give notice of the danger until he sees that it assuredly exists. Eminently is this the case with persons who, from a sense of duty, or under the direction of the public authorities, watch even as apparent members the progress of conspiracies which could in no other way be exposed.® § 272. May be accessory before the fact to man- slaughter. It has been doubted whether there can be an acces- sory before the fact to manslaughter, since accessoryship presup- poses premeditation, and premeditation is incompatible with manslaughter.’ But, as will be seen, an instigator may, in hot Iowa, 478, 51 N. W. 25, 1892. 1877, cited supra, § 190; 20 Cent. L. [Minn.] State v. Baden, 37 Minn. J. p. 5, 1885. 212, 84 N. W. 24, 1887. [N. Y.] 1See Reg. v. Taylor, L. R. 2 C. C. People v. Molins, 1 N. Y. Crim. Rep. 147, 44 L. J. Mag. Cas. N. S. 67, 32 51, 10 N. Y¥. Supp. 130, 1888. [Pa.] L T. N. 8. 409, 28 Week. Rep. 616, Campbell v. Com. 84 Pa. 187, 1877. 13 Cox, C. C. 68, 1875; Boyd v. State, Compare: People v. Bolanger, 71 17 Ga. 202, 1855. Cal. 17, 11 Pac. 799, 1886. Compare: 2 Hawk. P. C. p. 144, 2See supra, § 190. § 14,—see infra, § 276. Bowman v. 3 See Campbell v. Com. 84 Pac. 187, State, — Tex. Crim. Rep. —, 20 S. § 275) ACCESSORYSHIP, AGENCY, MISPRISION. 347 blood, stimulate a person incensed with another to execute a deed of vengeance on such other, when the offense of the perpetrator would be only manslaughter; and we may also hold that an instigator may be guilty of murder in instigating another to commit manslaughter by the rash use of dangerous instrumen- talities.? A fortiori there may be an accessory before the fact to murder in the second degree.* § 273. Accessory before the fact may not be originator. It is not material that an accessory should have originated the design of committing the offense. If the principal had ‘prevously formed the design, and the alleged accessory en- couraged him to carry it out by stating falsehoods, or otherwise, he is guilty as accessory before the fact." § 274. Quantity of aid immaterial. The quantity of aid rendered is of no consequence. A counterfeiting raid, for instance, may have a hundred persons concerned as accessories, some contributing very little aid. All, however, are technically guilty.! What distinguishes the act of the accessory from that of the principal is that the accessory, while concerned in fa- cilitating the execution of the guilty purpose, takes no part in this execution, leaving it to the principal.? § 275. Conditions of time immaterial. There is no partic- ular period of time to which accessoryship is limited. It may take place when the guilty act is concocted, when it is prepared, or when it is executed, provided that in the latter case there is not actual presence. And it may be coupled with acces- soryship after the fact. W. 558, 1892, but see People v. Weber, 66 Cal. 391, 5 Pac. 679, 1885. 2 Infra, § 276. See, to same effect, Reg. v. Smith, 2 Cox, C. C. 233, 1848; Stephens Digest Crim. Law 5th ed. art. 250, citing Reg. v. Gaylor, Dears. & B.C. C. 288, 7 Cox, C. C. 253, 40 Eng. L. & Eq Rep. 556, 1855. Reg. v. Taylor, L. R. 2 C. C. 147, 44 L. J. Mag. Cas. N. S 67, 32 L. T. N.S. 409, 23 Week. Rep. 616, 13 Cox, C. C. 68, 1875. 8 Infra, § 679. Hagan v. State, 10 Ohio St. 459, 1860. Accessory after fact to manslaugh- ter.—That there may be accessories after the fact to manslaughter, see Reg. v. Greenacre, 8 Car. & P. 35, 1837; Reg. v. Richards, 13 Cox, C. C. 611, 1878. 1 Keithler v. State, 10 Smedes & M. 192, 1848. See Reg. v. Tuckwell, Car. & M. 215, 1841. 1See supra, § 255. 2See supra, § 240. 1See Watson v. State, 9 Tex. App. 237, 1880. oo v. Blackson, 8 Car. & P. 48, 348 CRIMINAL LAW. [§ 276 § 276. Grade of guilt not necessarily the same. A ques- tion of considerable interest has arisen as to the extent to which the principal’s personal relations are to be imputed to the accessory. A public officer, for instance, committing a specific act, is liable to a severer punishment than would be a private citizen. Is a private citizen who is an accessory to an officer in such an offense chargeable with the same grade of guilt? Or is an accessory to a trustee, who is guilty of embezzle- ment, to be charged with the same grade of guilt as would the trustee? On this question we have the following possible theories.* 1. The accessory is absorbed in the principal, so that the principal’s personal relations, in respect to the crime, are im- putable to the accessory. 2, Each offender is chargeable only for what he really is. Thus, the nonpublic officer cannot be punished as a public officer, and the nontrustee cannot be punished as a trustee. Hence, ac- cording to this view, where a principal in a homicide, from the fact of his bearing a particular relation to the deceased, would be guilty of murder in the first degree, an accessory not bearing this relation would be guilty only of murder in the second degree. 3. We may distinguish, as do several codes, between those qualities which establish or cancel, and those which increase or diminish, punishability. As to the first, the personal relations of the principal] are the standard. As to the second, each of- fender is to be judged according to his own peculiar relations. Hence, to take up the last case, an accessory to a murder, whose grade is determined by the personal qualities of the perpetrator, is to be judged from his own, and not his principal’s, relations. A nonofficer, also, who aids an officer in an offense, whose grade is increased by the official relation, is liable only for the lower grade of the offense. On the other hand, a nonofficer who aids in a purely official crime (e. g., acceptance of a bribe by a judge) is, by the force of the distinction before us, liable as accessory to the crime. Another question arises in homicide when the accessory and the principal are acting under different degrees of passion. Under the ‘ 1 Berner, § 111. § 277] ACCESSORYSHIP, AGENCY, MISPRISION. * 349 old law, the defendant was first convicted, and then the accessory was charged with being accessory to the offense which the conviction covered. But now that instigation is a sub- stantive offense, it must be remembered that the offense of the instigator is not necessarily of the same grade as that of the perpetrator. The instigator may act in hot blood, in which case he will be guilty only of manslaughter, while the perpetrator may act coolly, and thus be guilty of murder. The converse, also, may be true: the instigation may be cool and deliberate, the execution in hot blood by a person whom the instigator finds in a condition of unreasoning frenzy. A person desiring coolly to get rid of an enemy, for instance, may employ as a tool someone whom that enemy has aggrieved, and who is infuriated by his grievance. Hence an accessory before the fact (or, to adopt the terms of recent codes, an instigator) may be guilty of murder, while the principal (or perpetrator) may be guilty of manslaughter; or the accessory before the fact (instigator), acting in hot blood, may be guilty of manslaughter, while the perpetrator (principal), acting with deliberate malice, may be guilty of murder.’ § 277. Conviction of principal no longer a prerequisite. At common law, the conviction of someone who has committed the crime must precede or accompany that of one charged as accessory.’ A prisoner does not waive his right to call for the record of such conviction, by pleading.? Convic- tion of the principal is not admissible evidence until judg- 2Joint participants may be guilty 4 Humph. 442, 1843. [Va.] Com v. of different degrees. See Fost. C. L. Williamson, 2 Va. Cas. 211, 1817. 106, 129; Wharton, Crim. Pl. & Pr. §8§ 307, 753. Mask v. State, 32 Miss. 405, 1861; Klein v. People, 31 N. Y. 229, 1865. 1[Fed.] United States v. Crane, 4 McLean, 317, Fed. Cas. No. 14,888, 1850. [Fla.] Bowen v. State, 25 Fla 645, 6 So. 459, 1889. [Ga.] Smith v. State, 46 Ga. 298, 1872. [Il.] Peo- ple v. Jordan, 244 Ill. 386, 91 N. E. 482, 1910. [Mass.] Com. v. Andrews, 3 Mass. 126, 1808; Com. v. Phillips, 16 Mass. 423, 1820; Com. v. Briggs, 5 Pick 429, 1827. [N. Y.] Baron v. People, 1 Park. Crim. Rep. 246, 1854. [Ohio] Brown v. State, 18 Ohio St. 496, 1868. [Tenn.] State v. Pybass, As to New York statutes, see supra, § 239. 21 Fost. C. L. 360; 1 Hale, P. C. 623. Re Burr, 4 Cranch, 470, 502, 2 L. ed. 684, 700, 1808. See also Brunner, Cal. Cas. 493, 4 Cranch, 455, 2 L. ed. 677, Fed. Cas. Nos. 14,692, 14,692a, 14,694. As to Indiana, see Harty v. State, 3 Blackf. 386, 1837. In North Carolina, the principle has been somewhat expanded, it hav- ing been there held that the acces- sory is not liable to be tried while the principal is amenable to the laws of the state and is still unconvicted. State v. Groff, 5 N. C. (1 Murph.) 350 CRIMINAL LAW. [§ 277 ment has been rendered on the verdict; * and, when the trials. are concurrent, there can be no judgment against the accessory until there is a sentence of the principal.* The record must be proved in the usual mode.® But even at common law, where there are two principals, and only one convicted, the other being dead, the accessory must answer notwithstanding the nonconvic- tion of the deceased. By statutes, however, now almost universally adopted, the offense of an accessory is made sub- stantive and independent, and consequently the accessory may be tried independently of the principal, though in such case the guilt of the principal must be alleged and proved.?. And the principal may be averred to be unknown. When principal and accessory are tried separately, convic- tion of the principal is prima facie evidence of his guilt, on 270, 1809. See State v. Goode, 8 N. C. (1 Hawks), 463, 1822. 8State v. Duncan, 28 N. C. (6 Tred. L.) 236, 1846. 42 Curw. Hawk. § 41. 5 People v. Gray, 25 Wend. 465, 1841. 6 Com. v. Knapp, 10 Pick. 477, 20 Am. Dec. 534, 1830. 7 [Cal.] People v. Campbell, 40 Cal. 129, 1876; People v. Outeveras, 48 Cal. 19, 1874. [Ga.] Jordan v. State, 56 Ga. 92, 1876. [Ill.] Yoe v. Peo- ple, 49 Ill. 410, 1869. [Ind.] Ulmer v. State, 14 Ind. 52, 1860. [Iowa] State v. Comstock, 46 Iowa, 265, 1877. [Kan.] State v. Cassady, 12 Kan. 550, 1 Am. Crim. Rep. 567, 1873. [Me.] State v. Ricker, 29 Me. 84, 1848. [Mass.] Pettes v. Com. 126 Mass. 242, 1879. [Mo.] Lough- ridge v. State, 6 Mo. 594, 1841. [N. Y.] People v. Gray, 25 Wend. 465, 1841. [Ohio] Brown v. State, 18 Ohio St. 496, 1868; Noland v. State, 19 Ohio 131, 1850. [Pa.] Holmes v. Com. 25 Pa. 221,. 1855; Com. v. Hughes, 11 Phila. 430, 1876. [Va.] Hatchett v. Com. 75 Va. 925, 1880. [Wis.] Ogden v. State, 12 Wis. 532, 78 Am. Dec. 754, 1861. As to English statute, see Reg. v. Hughes, Bell, C. C. 242, 29 L. J. Mag. Cas. N. S. 71, 6 Jur. N. S. 177, 11L. T. N.S. 450, 8 Week. Rep. 195, 8 Cox, C. C. 278, 1858; Reg. v. Greg- ory, L. R. 1 C. C. 77, 10 Cox, C. C. 459, 36 L. J. Mag. Cas. N. S. 60, 16 L. T. N. S. 388, 15 Week. Rep. 774, 1867. As to New York statute, see supra, § 239. At common law an accessory is discharged by the acquittal of his principal on those charges whereon the indictment against himself is founded. United States v. Crane, 4 McLean, 317, Fed. Cas. No. 14,888, 1850. Accessory to burglary — Principal convicted of larceny.—Even i+ a case where the principal was indicted for burglary and larceny in a dwelling house, and the accessory charged in the same indictment as accessory be- fore the fact to the said “felony and burglary,” and the jury acquitted the principal of the burglary, but found him guilty of the larceny, the judges, it is said, were of opinion that the accessory should have been acquitted; for the indictment charged him as accessory to the burglary only, and the principal being acquit- ted of that, the accessory should be acquitted also. Rex v. Dannelly, Russ. & R. C. C. 310, 2 Marsh. 571, 1818. 8Com. v. Adams, 127 Mass. 15, 1879. § 277] ACCESSORYSHIP, AGENCY, MISPRISION. 35r the trial of the accessory, but may be collaterally disputed when the issue is the guilt of the accessory.° Under the recent statutes, which treat principals and acces- sories before the fact as confederates, the declarations and acts of the one, in furtherance of the common plan, are admissible against the other.’® It is otherwise when the conspiracy is. terminated,” the accessory being tried for a substantive offense, and the principal’s confessions, after the joint action is closed, not being receivable against him.” 9 [Eng.] Rex v. Turner, 1 Moody, C. C. 347, 18838. [Me.] State v. Rick- er, 29 Me. 84, 1848. [Mass.] Com. v. Stow, 1 Mass. 54, 1806; Com. v. Knapp, 10 Pick. 477, 20 Am. Dec. 534, 1829. [Miss.] Keithler v. State, 10 Smedes & M. 192, 1848. [N. H.} State v. Rand, 33 N. H. 216, 1856. [N. Y.] People v. Buckland, 18 Wend. 592, 1835. [N. C.] State v. Duncan, 28 N.C. (6 Ired. L.) 236, 1846. Statute 7 George IV.—Applies when.—It should be observed that the statute of 7 Geo. IV. chap. 64, § 9, which several American statutes have copied, only applies where the accessory might at common law have been indicted with or without the conviction of the principal; and, therefore, where a defendant was in- dicted as accessory before the fact to the murder of N, she having, by his procurement, killed herself, it was ruled that the statute did not apply. Rex v. Russell, 1 Moody, C. C. 356, 1832; Reg. v. Gaylor, 7 Cox, C. C. 253, Dears. & B. C. C. 288, 40 Eng. L. & Eq. Rep. 556. At common law where the prin- cipal and accessory are tried togeth- er, if the principal plead otherwise than the general issue, the accessory is not bound to answer until the principal’s plea be first determined. 9 Hen. VII. 19; 1 Hale, P. C. 624; 2 Co. Inst. 184. Where the general issue is pleaded, however, the jury must be charged to inquire first of the principal, and if they find him not guilty, then to acquit, the accessory; but if they find the principal guilty, they are then to inquire of the accessory, 1 Hale, P. C. 624; 2 Co, Inst. 184. See Holmes v. Com, 25 Pa. 221, 1855. As to Louisiana, see State v Washington, 33 La. Ann. 1473, 1881. In Massachusetts an accessory be- fore the fact may be tried in the county of the consummated act, though the act of accessoryship was committed elsewhere. Com. v. Pet- tes, 114 Mass. 307, 1873. See infra, §§ 324, 333. In Tennessee, where a principal to- a murder was sentenced to imprison-- ment for life, in accordance with the statute of 1838, chap. 29, an acces- sory before the fact, subsequently tried and convicted (the jury bring- ing in a general verdict of guilty,. without finding mitigating circum- stances), was held to be properly sentenced to imprisonment for life. Nuthill v. State, 11 Humph. 247, 1850. In Virginia an accessory cannot be- prosecuted for a substantive offense, but only as accessory to the princi- pal felon. The guilt of the principal felon must be proved, but not his. conviction. Hatchett v. Com 75 Va. 925, 1880. An accessory cannot take advan-. tage of an error in the record against the principal. Com. v. Knapp, 10 Pick. 477, 20 Am. Dec. 534, 1829; State v. Duncan, 28 N.C. (6 Ired. L.) 236, 1846. 10 See infra, § 1672. 11Rex v Turner, 1 Moody, C. C.. 347, 1833; State v. Newport, 4 Harr. (Del.) 567, 1847. 12Tbid; Ogden v. State, 12 Wis.. 532, 78 Am. Dec. 754, 1860. As taking a less restricted view of- admissibility, see United States v. Hartwell, 3 Cliff. 221, Fed. Cas. No. 15,318, 1869; Rex v. Blick, 4 Car.. & P. 377, 1830. 352 CRIMINAL LAW. [§ 278 § 278. Indictment must particularize offense. At com- mon law it is not necessary, in an indictment against an acces- sory before the fact in a felony, to set out the conviction or execution of the principal. It is enough to aver the latter’s guilt. Indictment must show the commission of the offense as par- ticularly as is necessary in an indictment against the principal.® In states where it is provided by statute that an accessory before the fact shall be deemed and considered as principal, and punished accordingly, an accessory may be indicted and con- victed as a principal.’ It is otherwise at common law; ‘ and in states where this law prevails, an accessory before the fact, though by statute punishable as principal, must nevertheless be indicted, not as principal, but as accessory before the fact.® § 279. Verdict must specify grade. At common law, the verdict must specify the grade, and under a verdict of “guilty as accessory,” the defendant cannot be sentenced as accessory before the fact. As has just been seen, accessory and principal 1 Holmes v. Com. 25 Pa. 221, 1855; State v. Sims, 2 Bail. L. 29, 1830; State v. Crank, 2 Bail. L. 66, 23 Am. Dec. 117, 1831. 2 [Cal.] People v. Schwartz, 32 Cal. 160, 1867; People v. Crenshaw, 46 Cal. 65, 1873; People v. Thrall, 50 Cal. 415, 1875. [Ga.] Jordan v. State, 56 Ga. 92, 1876. [Kan.] See State v. Mosley, 31 Kan. 355, 2 Pac. 782, 4 Am. Crim. Rep. 529, 1883. [Va.] Com. v. Dudley, 6 Leigh, 614, 1834 8 [Ga.] Jordan v. State, 56 Ga. 92, 1876. [Ill.] Dempsey v. People, 47 Ill. 323, 1868; Yoe v. People, 49 Ill. 410, 1869. [Iowa] State v. Zeibart, 40 Iowa, 169, 1875. [Kan.] State v. Cassady, 12 Kan. 550, 1 Am. Crim. Rep 567, 1873. [Ky.] Ward v. Com. 14 Bush, 233, 1877. [Ala.] Raiford v. State, 59 Ala. 106, 1877. [Pa.] Campbell v. Com. 84 Pa. 187, 1877; Com. v. Hughes, 11 Phila. 430, 1876. See also infra, § 285; and see Wharton, Crim. Pl. & Pr. § 458. 4[Eng.] Reg. v. Fallon, 9 Cox, C. C. 242, Leigh. & C. C. C. 217, 32 L. J. Mag. Cas. N. S. 66, 8 Jui. N.S. 1217, 7 L. T. N. S. 471, 11 Week. Rep. 74, 1869; Rex v. Plant, 7 Car. & P. 575, 1836. [Ala.] Hughes v. State, 12 Ala. 458, 1847. [Miss.] Josephine v. State, 39 Miss. 613, 1866. [Neb.] Walrath v. State, 8 Neb. 80, 1889. [N. H.] State v. Larkin, 49 N. H. 39, 1869. [N. J.] State v. Wyckoff, 31 N. J. L. 65, 1858. For other cases see infra, § 285. 5 See [Ark.] Williams v. State, 41 Ark. 173, 1882. [Cal.] People v. Campbell, 40 Cal. 129, 1871; People v. Shepardson, 48 Cal. 189, 1874. [Mass.] Pettes v. Com. 126 Mass. 242, 1879. See also infra, § 285. Describing offense of accessory.— “Incite, move, and procure, aid, coun- sel, hire, and command the said per- son as aforesaid unknown, the said felony and abortion in manner and form aforesaid to do and commit,” has been sustained in Massachusetts as sufficiently describing the offense of an accessory before the fact Com. v. Adams, 127 Mass. 15, 1880. j ee v. Rose, 20 La. Ann. 148, 1868. § 281) ACCESSORYSHIP, AGENCY, MISPRISION. 353 (or instigator and perpetrator) may, under recent codes, be convicted of different grades. § 280. Attempt. If the felony is not committed, he who counsels or commands its commission is not liable as accessory. before the fact, but he may be convicted for the attempt as a sub- stantive misdemeanor, if steps were taken to consummate the offense.? V. Accrssorizs AFTER TIE Fact. § 281. Accessory after the fact is one who subsequently assists or comforts the felon. Although in other jurispru- dences he who directs or counsels a specific offense is involved in the same penalty as the actual perpetrator, the English common law stands alone in assigning the same grade of guilt to those who conceal or protect the perpetrator after the commission of the offense." That such persons should be punished is eminently just; but it is eminently unjust that they should be punished in the same way as the criminal whom they shelter. By the English common law, however, a person, according to the text-books, who, when knowing a felony to have been com- mitted by another, receives, relieves, comforts, or assists the felon,? whether he be a principal or an accessory before the fact, 1Rex v. Higgins, 2 East, 5, 6 Revised Rep. 358, 1802; Chitty, Crim. Law. 264. Supra, § 212 1Search note: 12 Cyc. 192; 1 Enc. Pl. & Pr. 69; 14 Century Dig. col. 700, §§ 92-95; 6 Decen. Dig. p. 198, § 74; Am. Dig. title “Criminal Law,” § 74; 1 Words & Phrases 60. What we call accessoryship after the fact is punished in Germany and France as an independent offense, in the nature of our Escape, or Prison Breach. See Berner, Lehrbuch, 1877, pp. 196, 197. In England, the old common law has been modified by stat. 24 & 25 Vict., which limits the punishment to imprisonment for four years. See Reg. v. Fallon, Leigh & C. C. C. 217, 9 Cox, C. C. 242, 32 L. J. Mag. Cas. N. S. 66, 8 Jur. N. S. 1217, 7 L. T. N.S. 471, 11 Week. Rep. 74, 1869. Crim. L. Vol. 1.—23. Receiving stolen goods does not, at common law, constitute accessoryship after the fact to the larceny. It was otherwise by the statute 3 Will. & Mary. In most jurisdictions, how- ever, the reception of stolen goods is now an independent crime. See infra, §§ 1227, et seq. Receiving money, knowing that it was obtained by robbery, does not constitute accessoryship after the fact at common law. Williams v. State, 55 Ga. 391, 1 Am. Crim. Rep. 413, 1874. 21 Hale, P. C. 618; 4 Bl. Com. 37; Roscoe, Crim. Ev. 184; 2 Hawk, P. C. chap. 29, §§ 26 et seq. See [Eng.] Rex v. Lee, 6 Car. & P. 536; Reg. v. Greenacre, 8 Car. & P. 35; Reg. v. Butterfield, 1 Cox, C. C. 39; Rex v. Jarvis, 2 Moody & R. 40. [Ark.] Carroll vy. State, 45 Ark. 539, 1885; 354 CRIMINAL LAW. [§ 282 is an accessory after the fact, involved in the same penalty as the principal.® State v. Jones, 91 Ark. 5, 120 S. W. 154,18 A & E. Ann. Cas, 293, 1909. [Cal.] People v. Garnett, 129 Cal. 364, 61 Pac. 1114, 1900. [Fla.] Mon- tague v. State, 17 Fla. 662, 1880; Hearn v. State, 43 Fla. 151, 29 So. 433, 1901; Whorley v. State, 45 Fla. 122, 33 So. 849, 1908. [Ga.] Loyd v. State, 42 Ga. 221, 1871; Bradley v. State, 2 Ga. App. 622, 58 S. E. 1064, 1907. [IIl.] White v. People, 81 Ill. 333, 1876; Reynolds v. People, 83 Ill. 479, 25 Am. Rep. 410, 2 Am. Crim. 480, 1876. [Iowa] State v. Stanley, 48 Iowa, 221, 1878; State v. Empey, 79 Iowa, 460, 44 N. W. 707, 1890. [Kan.] State v. Jett, 69 Kan. 788, 77 Pac, 546, 1904. [Ky.] Able v. Com. 5 Bush, 698, 1869; Tully v. Com. 11 Bush, 154, 1875; Tully v. Com. 13 Bush, 142, 1877; Travis v. Com. 96 Ky. 77, 27 S. W. 863, 1894; Levering v. Com. 132 Ky. 666, 136 Am. St. Rep. 192, 117 S. W. 253, 19 A. & E. Ann. Cas. 140, 1909. [La.] State v. Tazwell, 30 La. Ann. 884, 1878. [Mass.] Com. v. Barlow, 4 Mass. 439, 1808; Com. v. Filburn, 119 Mass. 297, 1876. [Miss.] Keithler v. State, 10 Smedes & M. 192, 1848; Harrel v. State, 39 Miss 702, 80 Am. Dec. 95, 1861. [Mo.] State v. Reed, 85 Mo. 194, 1884; State v. Naughton, 221 Mo. 398, 120 S. W. 53, 1909. [N. Y.] People v. Dunn, 7 N. Y. Crim. Rep. 173, 6 N. Y¥. Supp. 805, 1889. [Ohio] Hallett v. State, 29 Ohio St. 168, 1876; State v. Douglass, 3 Ohio Dec. Reprint, 540, 1882. [R. I.] State v. Davis, 14 R. I. 281, 1883. [Tenn.] State v. Payne, 1 Swan, 383, 1852. [Tex.] State v. Smith, 24 Tex. 285, 1859; Peeler v. State, 3 Tex. App. 533, 1878; House v. State, 16 Tex. App. 25, 1884; Watson v. State, 21 Tex. App. 598, 1 8. W. 451, 17 S. W. 550, 1886; Blakely v. State, 24 Tex. App. 616, 5 Am. St. Rep. 912, 7 S. W. 233, 1888; Isaacs v. State, 36 Tex. Crim. Rep. 505, 38 S. W. 46, 1896; Rob- bins v. State, 33 Tex. Crim. Rep. 573, 28 8. W. 478, 1894; Chitister v. State, 33 Tex. Crim. Rep. 635, 28 S. W. 683, When we examine the cases given, however, 1894; Street v. State, 39 Tex. Crim. Rep. 134, 45 S. W. 577, 1898; Chen- ault v. State, 46 Tex. Crim. Rep. 351, 81 S. W. 971, 1904; Strong v. State, 52 Tex. Crim. Rep. 133, 105 S. W. 785, 1907. [Va.] Wren v. Com. 26 Gratt. 952, 1875. [Wis.] Connaughty v. State, 1 Wis. 159, 60 Am. Dec. 370, 1853. As to what is necessary to con- stitute accessoryship after the fact, see note in 80 Am. Dec. 97. Elements of offense necessary to a conviction are (1) a completed fel- ony; (2) knowledge that the felon is guilty, and (8) receiving, reliev- ing, harboring, comforting, or assist- ing him to evade arrest and trial, or escape execution of sentence. Wren v. Com. 26 Gratt. 952, 1875. Man who employs another person to harbor the principal may be con- victed as an accessory after the fact, although he himself did no act to relieve or assist the principal.. Rex v. Jarvis, 2 Moody & R. 40, 1841. Rescuing imprisoned felon.—So it appears to be settled that whoever rescues a felon imprisoned for the felony, or voluntarily suffers him to escape, is guilty as accessory. 2 Hawk. P. C chap. 29, § 27. See Roscoe, Crim. Ev, 184. As to how far “concealing” con- stitutes accessoryship after the fact, See White v. People, 81 Ill. 333, 1876. Principal, to be answerable for a felony, must be actually or construc- tively present. Richardson v. United States, 104 C. C. A. 69, 181 Fed. 1, 1910. 32 Hawk. P. C. chap. 29, § 1; Rex v. Burridge, 3 P. Wms. 475. [Cal.] People v. Gassaway, 28 Cal. 404, 1862. [Ga.] Loyd v. State, 42 Ga. 221, 1871. [Ky.] Tully v. Com. 11 Bush, 154, 1876. [Miss.] Harrel v. State, 39 Miss. 702, 80 Am. Dec. 95, 1866. [Va.] Wren v. Com. 26 Gratt. 952, 1875. Accessory after the fact is one who, knowing a crime has been com- mitted, harbors the criminal, or as- sists him to escape arrest, or trial, or execution of sentence. Levering § 281] ACCESSORYSHIP, AGENCY, MISPRISION, 355 we find that the assistance to a felon, which constitutes this form of accessoryship, is such assistance as to some extent shelters the principal from prosecution, as, for instance, where the alleged accessory concealed the principal in his house,‘ or shut the door against his pursuers, until he should have an opportunity of escaping,’ or took money from him to allow him to escape,® or supplied him with money, a horse, or other necessaries, in order to enable him to escape,’ or where the principal was in prison, and the accessory, before conviction, bribed the jailor to let him escape, or supplied him with ma- terials for the same purpose,*® or in any way aided in compassing his escape. Merely suffering the principal to escape, however, it is held, will not impute the guilt of accessoryship to the v. Com. 132 Ky. 666, 1836 Am. St. Rep. 192, 117 S. W. 253, 19 A. & E. Ann. Cas. 140, 1909. Under Arkansas statute an acces- sory after the fact is one who har- bors, etc., person charged with or found guilty of crime; the words “charged with” do not mean judi- cially charged. State v. Jones, 91 Ark. 5, 120 S. W. 154, 18 A. & E. Ann. Cas. 293, 1909. Under Texas statute an accessory is one who conceals the offender, knowing that an offense has been committed, or gives him any other aid in order that he may evade ar- rest or trial or execution of sentence. Strong v State, 52 Tex. Crim. Rep. 133, 105 S. W. 785, 1907. —At common law an.accessory aft- ier the fact may also be an accessory "before the fact. State v. Naughton, 221 Mo. 398, 120 S. W. 53, 1909. —Common law rules as to acces- sories after the fact do not prevail in Ohio. State v. Lingafelter, 77 Ohio St. 528, 83 N. E. 897, 1908. —%In misdemeanors there can be no accessory after the fact. Skiles v. State, 85 Neb. 401, 123 N. W. 447, 1909; Sturgis v. State, 2 Okla. Crim. Rep. "362, 102 Pac. 57, 1909. Mere neglect to inform authorities that a crime has been committed is not sufficient to constitute a person an accessory after the fact. Ex parte Goldman — Cal. App. —, 88 Pac. 819, 1906. Accessory after the fact is not an accomplice. Bradley v. State, 2 Ga. App. 622, 58 S. E. 1064, 1907. As to being accomplices within rule relating to testimony of accomplices, see 1 Century Dig. col. 2018, § 33; 14 Century Dig. col. 1779, §§ 1082-1096, col, 1790, § 1098; 6 ‘Decen. Dig. p. 636, § 507; Am. Dig. title “Criminal Law,” § 507; 1 Ene, Ev. 115. —Receiving stolen property, know- ing it to have been stolen, constitutes a separate offense from the stealing thereof, and does not constitute the thief and the receiver accomplices. State v. Scott, 136 Iowa, 152, 113 N. W. 758, 1907. : Where the statute makes larceny and the receiving of stolen goods distinct offenses, a person ‘subse- quently purchasing the propeprty does not become an accomplice in the theft, even though he had knowledge at the time of such purchase State v. Moxley, 54 Or. 409, 103 Pac. 655, 20 A. & E. Ann. Cas. 593, 1909. 4Dalton’s Country Justice, 530, 531. Infra, § 855, and cases there cited. 51 Hale, P. C. 619. 69 Hen. IV., 1. 7Hall’s Sum. 218; 2 Hawk. P. C. chap. 29, § 26. See Com. v. Filburn, 119 Mass. 297, 1876. 81 Hale, P. C. 621; 2 Hawk. P. C. chap. 29, § 26; Archbold, by Jervis, 9 “9 See infra, §§ 2003, 2008, as to prison breach. 356 CRIMINAL LAW. [§ 281 party so doing.” And it is conceded that if a person supply a felon in prison with victuals or other necessaries for his sus- tenance; or succor and sustain him if he be bailed out of prison; or professionally attend a felon sick or wounded, al- though he know him to be a felon; * or speak or write in order to obtain a felon’s pardon or deliverance; * or advise his friends to write to the witnesses not to appear against him at his trial, and they write accordingly; or even if he himself agree, for money, not to give evidence against the felon; '* or know of the felony, and do not disclose it; 1” these acts will not be suffi- cient to make the party an accessory after the fact. There must be some independent criminality to make them an offense.” Statutes, also, now exist, making accessoryship after the fact substantively indictable. Even interference with public justice by promoting the escape of a criminal is now tried as an inde- pendent offense.” § 282. Knowledge of principal’s guilt essential. Three things are laid down in the books as necessary to constitute a man accessory after the fact to the felony of another. 1. The felony must have been committed.? 2. The defendant must know that the felon is guilty,’ and this, therefore, is always averred in the indictment.® 10 1 Hale, P. C. 619; Tully v. Com. 11 Bush, 154, 1876; Wren v. Com. 26 Gratt. 952, 1875. See Reg. v. Brannon, 68 L. T 319. 11 1 Hale, P. C. 620. See Reg. v. Chapple, 9 Car. & P. 355, 1840. 121 Hale, P. C. 620. 181 Hale, P. C. 332. 14 Tbid. 153 Co Inst. 139; 1 Hale, P. C. 620. Inducing a witness to testify false- ly will constitute one an accessory after the fact. Blakely v. State, 24 Tex. App. 616, 5 Am. St. Rep. 912, 7S. W. 233, 1888. 16 Moore, 8. See Wren v. Com. 26 Gratt. 952, 1875. 171 Hale, P. C. 371, 618. [Ill.] White v. People, 81 Ill. 333, 1876. [Ind.] State ex rel. Atty. Gen. v. Giles, 52 Ind. 356, 1875; State v. Fries, 53 Ind. 489, 1876. [N. J.] State v. Hann, 40 N. J L. 228, 1878. 18 Reynolds v. People, 83 Ill. 479, And 25 Am. Rep. 410, 2 Am. Crim. Rep. 480, 1877; Welsh v. State, 3 Tex. App. 418, 1879. 19 Infra, §§ 855, 2003, 2008; Com. v. Miller, 2 Ashm. (Pa.) 61, 1835. Presence at the crime is not neces- sary. See Pinkard v. State, 30 Ga. 757, 1860. 11 Chitty, Crim. Law. 264; 1 Hale, P. C. 622; 2 Hawk. P. C. chap. 29, § 35; Herrol v. State, 39 Miss. 702, 80 Am. Dec. 95, 1866; Poston v. State, 12 Tex. App. 408, 1881. 21 Hale, P. C. 622; Comyn’s Dig. Justice, T. 2. See Reg. v. Butter- field, 1 Cox, C. C. 98, 1845; Reg. v. Greenacre, 8 Car. & P. 35, 1837. Wren y. Com. 26 Gratt. 952, 1876. Such knowledge is to be inferred from facts. See White v. People, 81 Til. 333, 1875; Tully v. Com. 13 Bush, 142, 1877. 82 Hawk. P. C. chap. 29, § 38. Accessories after fact—Inception of offense, requisites.—It is sometimes 7} Gr § 284) ACCESSORYSHIP, AGENCY, MISPRISION. 3 though it has been intimated that constructive notice of the felony will, in some cases, suffice: as where a man receives a felon in the same county in which he has been attainted, which is supposed to have been a matter of notoriety; * yet the better opinion is that there should be laid such a basis of inculpatory facts as properly to raise the presumption of knowledge.® 3. The felon must be to some extent sheltered from pursuit by the defendant.® § 283. Wife is not liable. The only relation, so it is said, which excuses the harboring a felon is that of a wife to her husband, because she is considered as subject to his con- trol, as well as bound to him by affection.'_ But by the English common law no other ties, however near, will excuse; for if the husband protect his wife, a father his son, or a brother his brother, they contract the guilt, and are liable to the punish- ment, of accessories to the original felony.? § 284. Conviction of principal prima facie evidence of his guilt. At common law, as we have seen,’ the conviction of the principal is a necessary prerequisite to the conviction of the accessory. Where the principal and accessory are joined in an indictment, and tried separately, the record of the princi- pal’s conviction is irrebuttable proof of such conviction, and is prima facie evidence of his guilt, upon the trial of the acces- sory; and as the burden of proof is on the accessory, he must then show that the principal ought not to have been convicted.* said that the inception of the offense courages the thief, and becomes of accessories after the fact must be therefore a party to theft. subsequent to that of the principal offense. This, however, is not neces- sarily the case. A receiver, for in- stance, may. make his arrangements to receive the goods obtained by a rojected larceny. If he does not act in concert with the principal offender, —in other words, if the principal does not know that he is thus act- ing,-—he is an accessory after the fact. But it is otherwise if his re- ception is in consequence of a pre- vious engagement. ‘If he should say, “Go ahead; I will stand by you, and take care of the things after you get them,” he is accessory before the fact, or instigator, and hence, by re- cent legislation, principal. He en- 4Dyer, 355; Staunf. 41 b. 51 Hale, P. C. 323, 622; Rex v. Burridge, 3 P. Wms. 475; Tully v. Com. 13 Bush, 142, 1877. 6 Reg. v. Chapple, 9 Car. & P. 355, 1840; Loyd v. State, 42 Ga. 221, 1871, 11 Hale, P. C. 621; 2 Hawk. P. C. chap. 29, § 34; 4 BI. Com. 39; Comyn’s Dig. Justices, T. 2. 2 Thid,. As to New York statute, see supra, § 239. 1Supra, § 277; Edwards v. State, 80 Ga. 127, 4 S. E. 268, 1887. 2Com. v. Knapp, 10 Pick. 484, 20 Am. Dec. 534, 1830; State v. Chit- tem, 13 N. C. (2 Dev. L.) 49, 1830; 358 CRIMINAL LAW. [§ 284 But the accessory, in such case, is not restricted to proof of facts that were shown on the former trial, but may prove others which are incompatible with the guilt of the principal.* If the conviction of the principal be reversed, this brings with it the reversal of the judgment against the accessory.* § 285. Indictment must be specific. An accessory after the fact cannot be convicted on an indictment charging him as principal.’ The question of jurisdiction is hereafter considered.” VI. Lrasiniry or Principay ror Act oF AGENT. § 286. Commanding principal liable for agent’s act. When the agent performs the illegal act under an absent principal’s direction, either express or implied, this imposes responsibility on the principal. In misdemeanors the act may State v. Duncan, 28 N. C. (6 Ired. L.) 236, 1846. See supra, § 277. 3 Com. v. Knapp, 10 Pick. 484, 20 Am. Dec. 534, 1830. See State v. Sims, 2 Bail. L. 29, 1830; State v. Crank, 2 Bail. L. 66, 23 Am. Dec. 117, 1831. 4Ray v. State, 13 Neb. 55, 13 N. W. 2, 1882. 1Supra, § 278. [Eng.] Reg. v. Fallon, 9 Cox, C. C. 242, Leigh & C. C. C. 217, 32 L. J. Mag. Cas. N. 8. 66, 8 Jur. N. S. 1217, 7 L. T. N. S 471, 11 Week. Rep. 74, 1862; Rex vy. Soares, Russ. & R. C. C. 25, 2 Kast, P. C. 974, 1802. [Ala.] Hughes v. State, 12 Ala. 458, 1847. {Cal.] People v. Campbell, 40 Cal. 129, 1871. [l.] Reynolds v Peo- ple, 83 Ill. 479, 25 Am. Rep. 410, 2 Am. Crim. Rep. 480, 1877. [Ind.] Wade v. State, 71 Ind. 535, 1880. [Miss.] Josephine v. State, 39 Miss. 613, 1866. [N. J.] State v. Wyckoff, 31 N. J. L. 65, 1866. [Ga.] Anderson v. State, 68 Ga. 675, 1879; State v. Dewer, 65 N. C. 572, 1871. Under statutes, see supra, § 278. As to joint accusation of principal and accessory, see Prettyman v. Unit- ed States, 103 C. C. A. 384, 180 Fed. 30, 1910. —One aiding and abetting an of- fense is indictable as a principal, Kittrell v. State, 89 Miss. 666, 42 So. 609, 1907. —One may be principal in arson who does not himself apply the torch. State v. Squaires, 2 Nev. 226, 1866. See also note in 13 Am. Rep. 177. —One present at commission of a crime, to be held responsible, must have encouraged the act in such a way as to make him a principal in the transaction. Swinger v State, 51 Tex. Crim. Rep. 397, 102 S. W. 114, 1907. 2 Infra, §§ 333, 334. 1See Felton v. United States, 96 U.S. 699, 24 L. ed. 875, 1877; Lath- rope v. State, 51 Ind. 192, 1 Am. Crim. Rep 468, infra, § 1794; supra, §§ 239 et seq. Act done by procurement of an- other is his act, even though this act be acrime. Richardson v. United States, 104 C. C. A. 69, 181 Fed. 1, 1910. Principal liable criminally for act of his agent committed in his ab- sence, only where some complicity is shown. Ollre v. State, 57 Tex. Crim. Rep. 520, 123 S. W. 1116, 1909. The principles of agency in civil law are not a part of, and have no application in, criminal jurisprudence. Cox v. State, 3 Okla. Crim. Rep. 129, § 287] ACCESSORYSHIP, AGENCY, MISPRISION. 359 be charged to have been done by the principal himself, without reference to an agent.? Such, also, is the case in felonies, where the agent is innocent, insane, or a slave, in which case the party commanding the felony to be done, though absent at the time of its commission, is principal in the first degree.* In felonies, where the agent is responsible, the absent principal is at common law accessory before the fact.* As we have seen, an agent, when physically free, is not relieved from responsi- bility by the fact that he is acting under his principal’s di- rections.® § 287. And so where agent acts in line of principal’s business. A principal is prima facie liable for the illegal acts of an agent done in a general course of illegal business author- ized by the principal,’ and this is eminently the case in indict- ments for nuisances, which could not be abated if the master was not liable for the servant’s acts, if in general futherance of the master’s plan.” And the rule applies to all cases where a master inflicts indictable injury through a servant. Thus, where a barkeeper in a hotel sells liquor, or a salesman in a bookstore in the usual course of business sells a libelous book, or where a clerk publishes a libel in a newspaper, the principal is responsible, and, if there be no other evidence, may be con- victed.® Even the fact that the principal, who was the publisher 104 Pac. 1074, 105 Pac. 369, 1909; Sturgis v. State, 2 Okla. Crim. Rep. 362, 102 Pac. 57, 1909. 2[Fed.] United States v. Morrow, 4 Wash. C. C. 733, Fed. Cas. No. 15,819, 1829. [Ind.] Sloan v. State, 8 Ind. 312, 1856. [Mass.] Com. v. Stevens, 10 Mass. 181, 1845. [Pa.] Seaman v. Com. 11 W. N. C. 14, and note appended thereto. As to master’s liability for serv- ant’s negligent act, see supra, § 174; infra, §§ 466, 1688, 1794. 8 Supra, §§ 241, 261; infra, § 466; Reg. v. Michael, 2 Moody, C. C. 120, 9 Car. & P. 356, 1840; Rex v. Spiller, 5 Car. & P. 333, 1832. Felony by innocent agent—‘If a man does, by an innocent agent, a felony, the employer, and not the agent, is accountable criminally.” Reg. v. Bleasdale, 2 Car. & K. 765, 4 Mor. Min. Rep. 177, 1848. 4Infra, § 287. 5 Supra, §§ 124, et seq.; Play v. People, 86 Ill. 147, 2 Am. Crim. Rep. 381, 1877. 1[Eng.] Rex v. Dixon, 3 Maule & S. 11, 4 Campb. 12, 15 Revised Rep. 381, 1814; Roberts v. Preston, 9 C. B. N.S. 208, 1860. [Ind.] Molihan v. State, 30 Ind. 266, 1869. [Me.] State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688, 1875. [Mass.] Com. v. Nichols, 10 Met. 259, 43 Am. Dec. 432, 1845; [Ohio] Anderson y. State, 22 Ohio St. 305, 1871. See also infra, § 1794. 2Reg. v. Stephens, L. R. 1 Q. B. 702-710, 7 Best & S. 710, 35 L. J. Q. B. N.S. 251, 12 Jur. N. S. 961, 14 L. T. N. 8. 598, 14 Week. Rep. 859, 1866. 8 [Eng.] Rex v. Almon, 5 Burr. 2686, 1 Bennett & H. Lead. Cas. 241. 1770; R. v. Dodd, 2 Sessions Cases 33; Rex v. Gutch, Moody & M. 433, 1829. [Fed.] United States v. Hun- 360 CRIMINAL LAW. [§ 287 of a newspaper, was living at the time 100 miles distant from the place of publication, was sick and entirely ignorant of the libel being published, is at common law no defense.* A master, also, may be liable for the negligence of a servant whom he negligently appoints or negligently controls.° But it is other- wise if the agent be without authority, express or implied, and the act be out of the range of the agent’s business, and against the principal’s express and bona fide commands.’ It should also be remembered that as it is only by agents that corporations can act, it is not necessary to prove, on charging a corporation with a criminal act committed by an agent within his range of duty, that this act was specifically authorized by the corpo- ration.” § 288. Nonresident principal intraterritorially liable. When the principal resided out of the jurisdiction in which nemacher, 7 Biss, 111, Fed. Cas. No. 15,902, 1875. [Ind.] Hipes v. State, 73 Ind. 39, 1880. [Ky.] Com. v. Major, 6 Dana, 293, 1838. [Mass.] Com. v. Nichols, 10 Met. 259, 48 Am. Dec. 432, 1845; Com. v. Park, 1 Gray, 553, 1854; Com. v. Morgan, 107 Mass 199, 1871; Com. v. Boston & L. R. Corp. 126 Mass. 61, 1879. [Pa.] Com. v. Gillespie, 7 Serg. & R. 469, 10 Am. Dec. 475, 1821. [R. I.] State v. Smith, 10 R. I. 258, 1872. [S. C.] State v. Matthis, 1 Hill, L. 37, 1833. [Tenn.] Britain v. State, 3 Humph. 203, 1842; Rex v. Almon, 5 Burr. 2686, 1 Bennett & H. Lead. Cas. 241. See also infra, §§ 466, 1683, 1743, 1794. Sale of liquor by clerk on Sunday without consent.—This rule holds even as to the sale of liquor on Sun- day by a clerk without the owner’s consent. Noecker v. People, 91 Il. 494, 1879; People v. Roby, 52 Mich. 577, 50 Am. Rep. 270, 18 N. W. 365, 1884. New York rule.—In People v. Ut- ter, 44 Barb. 170, 1864, the court, on the other hand, held that a master was not responsible for w sale of liquor on Sunday unless it was shown to have been with his direction or as- sent. See Anderson v. State, 22 Ohio St. 305, 1870. 4Rex yv. Gutch, 1 Moody & M. 433, 1829. 5 Supra, § 174. 6See supra, § 174; infra, § 1794. [Eng.] Reg. v. Bennett, Bell, C. C. 1, 1858, 8 Cox, C. C. 74, 28 L. J. Mag. Cas. N. S. 27, 4 Jur. N. S. 1088, 7 Week. Rep. 40, cited supra, § 195. [Fed.] United States v. Halberstadt, Gilpin, 262, Fed. Cas. No. 15,276, 1832. [Conn.] Barnes v. State, 19 Conn. 398, 1848. [Ind.] Hipp v. State, 5 Blackf. 149, 33 Am. Dec. 463, 1845; Anderson v. State, 39 Ind. 553, 1871; O’Leary v. State, 44 Ind. 91, 1876 [Mass.] Com. v. Nichols, 10 Met. 259, 48 Am. Dec. 432, 1846. [Mo.] State v. James, 63 Mo. 570, 1876; State v. McGrath, 73 Mo. 181, 1879. [N. C.] State v. Privett, 49 N. C. (4 Jones, L.) 100, 1856. [S. C.] State v. Dawson, 2 Bay, 360, 1796. As to liability of co-conspirators, see infra, § 1672. Indictability of principal for act of subaltern.—That « principal who: leaves the performance of his of- ficial duties to a subaltern is in- dictable for the subaltern’s failure to. perform an official duty, see United States v. Buchanan, 4 Hughes, 487, 9 Fed. 689, 1881; United States v. Beaty, Hempst, 487, Fed. Cas. No. 14,556, 1848. 7 Supra, § 116; Rex v. Medley, 6 Car. & P. 292, 1834; infra, §§ 1688, 1689, 1691. § 289] ACCESSORYSHIP, AGENCY, MISPRISION. 361 the offense was consummated, he is chargeable in such place of consummation, notwithstanding his nonresidence.* VII. Misprision, 289. Misprision of felon is concealment of felon. At common law a party is guilty of misprision of felony who stands by during the commission of the felony without en- deavoring to prevent it, and who, knowing of its commission, neglects to prosecute the offender.’ Misprision, as a substantive offense, however, is practically obsolete. The same end, so far as is consistent with the general policy of society, is reached by the rule noticed in another work, which makes it incumbent on all persons present when an unlawful act is attempted to take part with the officers of the law in the prevention of suck act.” 1See infra, §§ 324, 325, 333. [Eng.] Reg. v. Garrett, 22 Eng. L. & Eq. Rep. 607, 6 Cox, C. C. 260, Dears. C. C. 232, 2 C. L R. 106, 23 L. J. Mag. Cas. N. S. 20, 17 Jur. 1060, 2 Week. Rep. 97, 1853 [Fed.] United States v. Davis, 2 Sumn. 482, Fed. Cas. No. 14,932, 1837. [Mass.] Com. v. Pettes, 114 Mass. 307, 1873. [N. Y.] People v. Adams, 3 Denio, 190, 45 Am Dec. 468, 1847. [Pa.] Com. v. Gillespie, 7 Serg. & R. 469, 10 Am. Dec. 475, 1821. 11 Hawk. P. C. chap. 59, § 2; 1 Hale P. C. 431-448. Knowledge of high treason—Mis- prision of treason why.—According to Sir J. F. Stephen’s Digest Crim. Law, 5th ed. art. 174. “Every one who knows that any other person has committed high treason, and does not within a reasonable time give in- formation thereof to a justice of assize or a justice of the peace, is guilty of misprision of treason, and must, upon conviction thereof, be sentenced to imprisonment for life, and to forfeit to the Queen all his goods and the profits of his lands during his life.” 5th ed. art. 175. “Everyone who. knows that any other person has committed felony, and conceals or procures the concealment thereof, is guilty of misprision of felony.” As to the punishment for misprision of fel- ony in England, see Stephen’s Digest Crim. Law 5th ed. art. 18. 2See Wharton Crim. Pl. & Pr. §§ 10, et seq. As to misprision of treason, see Re Burr, 4 Cranch, 470, 2 L ed. 684, 1808; infra, §§ 2148, et seq. Misprision of treason—By U. S. Rev. Stat. §§ 5333, 5390, U. S. Comp. Stat. 1901, pp. 3623, 3651, 7 Fed. Stat. Anno. 352, 2 Fed. Stat. Anno 355, misprision of treason and mis- prision of felony are made specifical- ly indictable, CHAPTER X. IN WHAT COURTS INDICTMENTS ARE COGNIZABLE, I. In GENERAL. § 290. Jurisdiction defined. § 291. Offenses contra bonos mores. § 292. Sufficiency of indictment as affecting jurisdiction. Il. Juprcran Powers SETTLED BY FEDERAL CONSTITUTION. § 293. Summary of Federal judicial powers given by Consti- tution. § 294. Prevalent view is that Federal judiciary has no common- law powers. § 295. Conflict of early rulings in this relation. § 296. Rulings do not shut out common law as a standard of interpretation. § 297. No formal jurisdiction of exclusively common-law of- fenses. § 298. Statutory jurisdiction of Federal courts. § 299. Includes offenses against law of nations. § 300. Also offenses against Federal sovereignty. § 301. Also offenses against individuals on Federal soil or on ships, or depriving individuals of civil rights. § 302. Also offenses against property of Federal government, or on Federal soil, or on ships. § 303. Also against public Federal justice and policy. § 304. State courts not deprived of jurisdiction. III. In Wuat Courts Orrenses COGNIZABLE BY THE UNITED STATES ABE TO BE TRIED. When the state and the Federal courts have concurrent juris- diction. § 305. State courts have no concurrent jurisdiction unless given by Congress. § 306. Conflict of opinion as to state jurisdiction. § 307. As to offenses distinctively against the United States, the states are independent sovereigns. IV. Conriict as To HaBeas Corpus. § 308. Right of state courts to discharge from Federal arrest. § 309. Federal courts have statutory powers of habeas corpus in Federal cases. 362 IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 363 V. CONFLICT AND CONCURRENCE OF JURISDICTION. 1. Introductory. § 310. Crimes and offenses committed outside of the state. § 311. Water boundary. 2. Offenses at sea. § 312. Offenses on shipboard cognizable in country of flag. § 313. Federal courts have jurisdiction of crimes on high seas and out of state jurisdiction. § 314. Sovereign has jurisdiction of sea within cannon shot from shore. § 315. Territory used by the United States. 3. Offenses by subjects abroad. § 316. Subjects may be responsible to their own sovereign for offenses abroad. § 317. Apportionment of this sovereignty between Federal and state governments. ‘ § 318. United States statutes give jurisdiction over offenses in semi-civilized lands. § 319. Also over political offenses abroad. § 320. Political extraterritorial offenses by subjects are pun- ishable. : § 321. Perjury and forgery before consular agents abroad pun- ishable in the home courts. § 322. Homicide by subjects abroad punishable in England. 4, Liability of extraterritorial principal. § 323. Extraterritorial principal may be intraterritorially in- dicted. § 324. Principal responsible for extraterritorial acts. § 325. Doubts in cases where agent is independently liable. 5. Offenses by aliens in country of arrest. § 326. Aliens indictable in the country of the crime; Roman law. § 327. —So in English and American law. § 328. —So as to Indians. § 329. —But not so as to belligerents. 6. Offenses by aliens abroad. § 330. Extraterritorial offenses against our rights may be intra- territorially indictable. § 331. Jurisdiction claimed in case of perjury and forgery be- fore consular officers. § 332. —Punishment in such cases. 7. Offenses committed part in one jurisdiction and part in another. § 333. Accessories and co-conspirators liable in place of overt act. § 334. In continuous offenses, each place of overt act has cog- nizance. § 335. —Continuing nuisance. § 336. —Adjustment of punishment in such cases. § 337. Offenses in carriages and boats. 364 CRIMINAL LAW. [§ 290 § 338. In larceny thief is liable wherever goods are brought. § 339. In homicide place of wound and, by statute. place of death, may have jurisdiction; jurisdiction of place of wound. § 340. —Jurisdiction of place of death. § 341.—In Federal courts. § 342. Law of place of performance may determine indicta- bility. § 343. Sovereign first prosecuting the offense absorbs it. 8. Courts-martial and military courts. § 344. Martial law is law for an army; military law is law imposed by the army on a subjected country. § 345. Judgments of, may be a bar. I. Iw Genera. § 290. Jurisdiction defined. The word “jurisdiction” (jus dicere) is a term of large and comprehensive import, and em- braces every kind of judicial action upon the subject-matter, from the finding of the indictment to the pronouncing the sen- tence.’ To have jurisdiction is to have power to inquire into the facts, to apply the law, and to declare punishment in a regu- lar course of judicial proceeding.? The very word, in its ori- gin, imports this. It is derived from juris and dico,—I speak the law; and, as Mr. Justice Coulter remarks,® “that sentence ought to be inscribed in living light on every tribunal of criminal power.” Jurisdiction is the right of administering justice through the laws, by the means which the law has provided for that pur- pose.* In any given case, to be within the jurisdiction, the court must have jurisdiction both of the person of the accused and of the subject- matter of the crime charged.® § 291. Offenses contra bonos mores. In this country the jurisdiction of the court is conferred and regulated by consti- 1Hopkins v. Com. 3 Met. 460, 8Mills v. Com. 13 Pa. 627, 630, 1842; State v. Smith, 29 R. I. 523, 1850. 72 Atl. 710, 1909. 4Mills v. Com. 13 Pa. 627, 1850; 2[Mass.] Hopkins v. Com. 3 Met. State v. Smith, 29 R. I. 513, 72 Atl. 460, 1842. [Pa.] Mills v. Com. 13 710, 1909. Pa. 627, 1850. [R. I.] State v. 5Emery v. State, 57 Tex. Crim. Smith, 29 R. I. 518, 72 Atl. 710, Rep. 423, 136 Am. St. Rep, 988, 123 1909. S. W. 133, 1909. § 292] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE,. 365 tutional and statutory law.’ Offenses contra bonos mores may be punished by the courts, it seems, under certain conditions, but the jurisdiction in such cases is not to be extended beyond the limit established by the adjudicated cases.” It is too late now for the courts to assume jurisdiction over a new class of cases, under the idea of their being contra bonos mores. “We must consider the practice of the English courts, from which we derive the principle, as having settled in the course of many centuries the true limits and proper subjects of this principle. If we are to disregard these landmarks, and take up any cases which may arise under this principle, as res integra, then might it be extended to cases which none has yet thought of as penal.” * § 292. Sufficiency of indictment as affecting jurisdiction. The jurisdiction of the court does not depend upon the suf- ficiency of the pleading in the case, the indictment, or informa- tion. Ifthe law confers power to consider and render judgment, and the court has jurisdiction over the subject-matter and over the person of the accused, nothing further is required.’ Juris- diction of the court over the particular matter does not mean simply jurisdiction of the particular case before the court, but jurisdiction over the class of cases to which the case at bar belongs.” And where the court has jurisdiction over the subject- 1See infra, §§ 293 et seq. 2 Anderson v. Com. 5 Rand. (Va.) 627, 16 Am. Dec. 776, 1827. 3 Ibid. 10’Brien v. People, 216 Ill. 354, 108 Am. St. Rep. 219, 75 N. E. 108, 3 A. & E. Ann. Cas. 966, 1905; State v. Smith, 29 R. I. 518, 72 Atl. 710, 1909. See [U. S.] United States v. Arredondo, 6 Pet. 709, 8 L. ed. 554, 1882; Rhode Island v. Massachu- setts, 12 Pet. 657, 9 L. ed. 1233, 1838; Grignon v. Astor, 2 How. 338, 11 L. ed. 290, 1844; Applegate v. Lexington & C. County Min. Co. 117 U. S. 267, 29 L. ed. 896, 6 Sup. Ct. Rep. 742, 1885. [Mo.] Wenningham v. Trueblood, 149 Mo. 572, 51 S. W. 399, 1899. [N. Y.] Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129, 1878. [Wis.] Spencer v. State, 132 Wis. 509, 122 Am. St. Rep. 989, 112 N. W. 462,13 A. & E, Ann. Cas. 969, 1907. Indictment’s sufficiency is of no importance so far ag the court’s jurisdiction is concerned; if it sets out an offense belonging to a general class over which the authority of the court extends, then the jurisdiction of the court attaches, and it has power to decide whether the plead- ings be good or bad. See [Ill.] O’Brien v. People, 216 Ill. 354, 108 Am. St. Rep. 219, 75 N. E. 108, 3 A. & E. Ann. Cas. 966, 1905. [Mo.] Wenningham v. Trueblood, 149 Mo. 572, 51 S. W. 399, 1899. [N. Y.] Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129, 1878. [R. I.] State v. Smith, 29 R. I. 513, 72 Atl. 710, 1909. 2[Il.] O’Brien v. State, 216 Ill. 354, 108 Am. St. Rep. 219, 75 N. E. 108, 3 A. & E, Ann. Cas. 966, 1905. [Ind.] State ex rel. Egan v. Wolever, 127 Ind. 306, 26 N. E. 762, 1890. [R. I.] State v. Smith, 29 R. I. 513, 72 Atl. 710, 1909. See also Jackson v. Smith, 120 Ind. 520, 22 N. E. 431, 1889; Fields 366 CRIMINAL LAW. "Tg 292 matter and over the person of the accused, the decision of all other questions by the court is merely the exercise of that juris- diction.® II. Jupicrat Powers SerrLep By FrprraL ConstTITUTION. § 293. Summary of Federal judicial powers given by Constitution. The powers given to Congress under this head are: To provide for the punishment of counterfeiting the securities und current coin of the United States.” To define and punish piracies, felonies committed on the high seas, and offenses against the law of nations.” To make rules for the government and regulating of the land and naval forces. To provide for organizing, arming, and disciplining the militia, and for governing such parts of them as may be em- ployed in the service of the United States.* To exercise exclusive legislation in all cases whatsoever over such district (not exceeding 10 miles square) as may, by cession of particular states and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all places purchased, by the consent of the legis- lature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful build- ings; ® and to make all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States.® v. Maloney, 78 Mo. 172, 1883; Dowdy v. Wamble, 110 Mo. 289, 19 S. W. 489, 1892. 3Ex parte Brown, 3 Okla, Crim. Rep. 329, 105 Pac. 577, 1909. 1 Art. 1, § 8, cl. 6. 21d. cl. 10. 3Id. cl. 14. 41d. cl. 16. 5Id. cl. 17. See infra, § 301, n. 4. @Td. cl. 18. “Necessary”—Construction of.—In this section the word “necessary” has been construed to mean needful, requisite essential, and conducive to, and gives Congress the choice of the means best calculated to exercise the powers they possess; and under this construction it has been held that Congress has power to inflict punishment in cases not specified by the Constitution, such power being: implied as necessary and proper to the sanction of the laws and the exercise of the delegated powers. United States v. Fisher, 2 Cranch, 358, 396, 2 L. ed, 304, 316, 1804; Ex parte Bollman, 4 Cranch, 75, 2 L. ed. 554, 1807; Martin v. Hunter, 1 Wheat. 304, 4 L. ed. 97, 1816; Unit- § 295)IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 367 To enforce the rights established by the 14th and 15th Amend- ments.” § 294. Prevalent view is that Federal judiciary has no common-law powers. It is said in a case which will presently be more fully noticed, and which is assumed to have settled the law on this important question, that although it may be that the Supreme Court possesses jurisdiction derived im- mediately from the Constitution, of which the legislative power cannot deprive it, all other courts created by the general gov- ernment possess no jurisdiction but what is given them by the power that creates them, and can be invested with none but what the power ceded to the general government authorizes Congress to confer. Certain implied powers, it is admitted, must neces- sarily result to courts of justice from the nature of their institu- tion, as to fine for contempt, to imprison for contumacy, and to enforce obedience to orders; but jurisdiction of crimes against the Federal government, it is held, is not among these powers. Before an offense can become cognizable by the United States courts, so it is concluded, Congress must first recognize it as such, affix a punishment to it, and declare the court shall have jurisdiction.” § 295. Conflict of early rulings in this relation. The first case which involved the question of the common-law crim- inal jurisdiction of the Federal courts was that of Henfield, tried for illegally enlisting in a French privateer; a case tried in ed States v. Bevans, 3 Wheat. 336, 4 L. ed. 404, 1818; M’Culloch v. Maryland, 4 Wheat. 316, 413, 4 L. ed. 579, 6038, 1819. As to meaning of word “necessary” as used in the Federal Constitution, see 8 Fed. Stat. Anno. pp. 259, 676; also 5 Words & Phrases, 4705-4708. 7 Wharton, Am. Law, §§ 591 et seq. T United States v. Hudson, 7 Cranch, 32, 3 L. ed. 259, 1810; Unit- ed States v. Coolidge, 1 Wheat. 415, 4 L. ed. 124, 1816. See DuPonceau, Jurisdiction of United States Courts. No common-law offenses under the laws of the United States. United States v. Dietrich, 126 Fed. 676, 1904; United States v. Martin, 176 Fed. 110, 1910; Barclay v. United States, 11 Okla. 503, 69 Pac. 798, 1902. Federal courts have such jurisdic- tion only as conferred upon them by statute, to try and punish such acts as have previously been declared to be crimes, and for which the penalty has been fixed. United States v. Martin, 176 Fed. 110, 1910. United States courts exercise no common-law jurisdiction except where conferred by an act of Con- ess. United States v. Dietrich, 126 Fed. 676, 1904; Peters v. United States, 36 C. C. A. 105, 94 Fed. 127, 1899; Barclay v. United States, 11 Okla. 508, 69 Pac. 798, 1902. 368 CRIMINAL LAW. [§ 295 1798, but for the first time fully reported in 1850." In this case Chief Justice Jay, Judge Wilson, and Judge Iredell, of the Supreme Court, and Judge Peters of the district court, con- curred in holding that all violations of treaties, of the law of nations, and of the common Jaw, so far as Federal sovereignty is concerned, are indictable in the Federal courts without stat- ute. Almost at the same time before Judge Iredell, Judge Wilson, and Judge Peters, an American citizen was convicted, at common law, for sending a threatening letter to the British minister.2, Then came Isaac Williams’s Case, where the same law was held by Chief Justice Ellsworth.* Such was the state of the law when Judge Chase, in Worrall’s Case* (Chief Justice Jay, Judge Wilson, and Judge Iredell being no longer on the bench, and Chief Justice Ellsworth being abroad), without waiting to learn what had been decided by his predecessors, startled both his colleague and the bar by announc- ing that he would entertain no indictment at common law. No reports being then, or for some time afterward, published, of the prior rulings to the contrary, it is not to be wondered that the judge who came on the bench after Judge Chase supposed that he stated the practice correctly. In this view Judge Wash- ington seems to have held that there could be no indictment for perjury at common law in the courts of the United States; ° and Chief Justice Marshall,° in more than one case, treats the same point as if settled by consent.”| But in a case which occurred in the circuit court of Massachusetts,*® in 1813, on an indictment for an offense committed on the high seas, the question arose whether the circuit court had jurisdiction to try offenses against the United States which had not been defined, and to which no punishment had been affixed. Judge Story, admitting that the courts of the United States were of limited jurisdiction, and 1 Wharton, St. Tr. 49. 6 United States v. Burr, 4 Cranch, 2United States v. Ravara, 2 Dall. 500, 2 L. ed. 699, Fed. Cas. No. 297, 1 L. ed. 388, Fed. Cas. No. 14,692a, 1808. 16,122, Wharton, St. Tr. 91, 1793. 7United States v. Bevans, 3 3 Wharton, St. Tr. 651. Wheat. 336, 4 L. ed. 404, 1818; 4 Wharton, St. Tr. 189. United States v. Wiltberger, 5 5 See United States v. Worrall, 2 Wheat. 76, 5 L. ed. 37, 1820. Dall. 384, 1 L. ed. 426, Fed. Cas. No. ‘%United States v. Coolidge, 1 16,766, 1804, the report of which case Gall. 488, Fed, Cas. No. 14,857, 1814. appears to be defective in the conclu- sion of Judge Washington’s opinion. § 295] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE, 369 could exercise no authority not expressly granted to them, con- tended that when an authority was once lawfully given, the nature and extent of that authority, and the mode in which it should be exercised, must be regulated by the rules of the com- mon law. The inference, he urged, was plain, that the circuit courts have cognizance of all offenses against the United States; that what these offenses were depended upon the common law, applied to the powers confided to the United States; that the circuit courts, having such cognizance, might punish by fine and imprisonment where no punishment was specially provided by statute; that the admiralty was a court of extensive criminal as well as civil jurisdiction ; and that offenses of admiralty were exclusively cognizable by the United States, and punishable by fine and imprisonment, where no other punishment was spccially prescribed. The district judge dissenting, the case came before the Supreme Court of the United States; and it is evident from the report,® that a strong desire existed in the minds of the judg- es to hear the whole question of the extent of jurisdiction re- argued. The attorney general, however, declined to do so, be- ing unwilling to attempt to shake the opinion in United States v. xiudson and Goodwin; by the authority of that case the court felt themselves bound, and so certified to the circuit court." SUnited States v. Coolidge, 1 Brock. 96, Fed. Cas. No. 15,747, 1823; Wheat. 415, 4 L. ed. 124, 1816. 10 United States v. Hudson, 7 Cranch, 32, 3 L. ed. 259, 1813. 11 Kent’s view.—Chancellor Kent does not seem to think that the case of United States v. Coolidge should be governed by the same principle as those of United States v. Hudson and United States v. Worrall,—the one a libel and the other an attempt to bribe a commissioner of the rev- enue,—the two latter being decided on the ground that the Constitution had given to the courts no jurisdic- tion in such cases; whereas the case of Coolidge was one of admiralty, over which the Federal courts seem to have a general and exclusive juris- diction. Kent’s Com. vol. i. p. 338. As following United States v. Coolidge, and denying jurisdiction, see United States v. Maurice, 2 Crim. L. Vol. 1.—24. United States v. Scott, 4 Biss. 29, Fed. Cas. No. 16,241, 1865; United States v. Babcock, 4 McLean, 113, Fed. Cas. No. 14,488, 1846; United States v. Taylor, 1 Hughes, 514, Fed. Cas. No. 16,438, 1873. Bribing revenue officer to burn dis- tillery; jurisdiction—Hence the United States courts have no juris- diction to try attempts to bribe revenue officers to burn distilleries. United States v. Gibson, 47 Fed. 833, 1891. To same effect, see argument of Clifford, J.. in United States v. Cruikshank, 92 U. S. 542, 564, 2 L. ed. 588, 595, 1875; infra, § 297. But otherwise as to offenses on high seas and places within exclusive jurisdiction. United States v. Shep- herd, 1 Hughes, 520, Fed. Cas. No. 16,274, 1873. CRIMINAL LAW. [§ 296 370 § 296. Rulings do not shut out common law as a standard of interpretation. But even assuming, as was said on another occasion,’ that it is now finally established that the common law, as a source of jurisdiction, is not recognized in the Federal courts, this does not exclude the operation of the common law, as a rule for the exercise of a jurisdiction pre- viously given. That the common law is necessarily thus ap- pealed to will hereafter appear in the chapters discussing of- fenses against the United States; and it will be seen that there is not one of these offenses whinge character is not, according to the construction given by the Federal courts, determined by a resort to the common law.? § 297. No formal jurisdiction of exclusively common- law offenses. While, therefore, it is settled that the Federal courts have no jurisdiction of offenses not declared to be such by Federal statute, yet, as these statutes mostly designate offenses by title, leaving their definition to the common law, it is the common law that is the final arbiter as to what such offenses are. And even this formal restriction of Federal jurisdiction to statutory offenses is in some measure done away with by a stat- ute, hereafter to be noticed more fully, by which conspiracies against the United States are made indictable.’ Other common- law offenses against the United States are still cognizable in state courts, when committed within state limits, and where state cog- nizance of them is not prohibited by Federal statute.” But when 1 Wharton, St. Tr. 87. 2 Administration of the criminal law, in the Federal courts is governed Sawy. 620, Fed. Cas. No. 15,978, 1868; Com. v. Kosloff, 5 Serg. & R. 545, 1820. by the rules of the common law. Howard v. United States, 34 L.R.A. 509, 21 C. C. A. 586, 43 U. S. App. 678, 75 Fed. 986, 1896. —As to practice, when the ques- tion is open, the Federal courts fol- low the courts of the state in which they sit. See United States v. Shep- ard, 1 Abb. (U. 8.) 4381, 2 Chicago Leg. News, 317, 12 Int. Rev. Rec. 10, Fed. Cas. No. 16,273, 1870. Particularly as to piracy, infra, § 2218. Vindication of position in the text in Wharton, Am. Law, §§ 12, 200, 452. See also Marbury v. Madison, 1 Cranch, 137, 2 L. ed. 6C, 1803; United States v. Outerbridge, 5 see Position is maintained in DuPon- ceau, Jurisdiction, 3, and in Wharton, St. Tr. 89. lInfra, §§ 1622, 2131. 2Infra, § 307; 10 Washington, Writings by Sparks, 535; Wharton, St. Tr. pp. 87, 88. An instance of common-law juris- diction accepted as a matter of course is found in United States v. Meyer, cited in Wharton, Precedents, 955, note. As illustrations of rejection of common-law jurisdiction, see United States v. Babcock, 4 McLean, 113, Fed. Cas. No. 14 488, 1846; Anony- mous, 1 Wash. C. 6. 84, Fed. Ca3. No. 476, 1804; United States v. Maurice, § 299] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 371 common-law offenses against the United States are committed on the high seas, or on exclusively Federal territory, they are either punishable in the Federal courts, or they are not punish- able at all. § 298. Statutory jurisdiction of Federal courts. It re- mains to consider such offenses as are brought within the ju- risdiction of the Federal courts by act of Congress. The of- fenses thus particularly enumerated by Congress may be col- lected under five general heads; first, those against the law of nations; secondly, those against Federal sovereignty; thirdly, offenses against the persons of individuals; fourthly, offenses against property; and fifthly, offenses against public justice.’ § 299. —Includes offenses against law of nations. (a) Under the first head, namely, offenses against the law of nations, may be classed accepting and exercising, by a citi- zen, a commission to serve a foreign state against a state at peace with the United States; fitting out and arming, within the limits of the United States, any vessel for a foreign state to cruise against a state at peace with the United States;* in- creasing or assisting, within the United States, any force of armed vessels of a foreign state at war with a state with which the United States are at peace;* setting on foot within the United States, any military expedition against a state at peace 2 Brock. 96, Fed. Cas. No. 15,747, 1823; United States v. New Bed- ford Bridge, 1 Woodb. & M. 401, Tred. Cas. No. -15,867, 1846; United States v. Lancaster, 2 McLean, 431, Fed. Cas. No. 15,556, 1841; United States v. Barney, 5 Blatchf. 294, Fed. Cas. No. 14,524, 1866; United States v. Scott, 4 Biss. 29, Fed. Cas. No. 16,241, 1865; and cases cited in supra, § 295. 1 American citizens residing or so- journing in China, being charged with a criminal offense, made such by the common law or by statutes of the United States, are triable and punishable in the United States court of China. Biddle v. United States, 84 C, C. A. 415, 156 Fed. 759, 1907. Consuls’ criminal offenses being triable in Federal courts only, un- der the provisions of the statute, the preliminary proceedings for ex- tradition or for commitment by magistrate are not affected because the act excluding state authority is limited exclusively to trials in state courts. Re Iasigi, 79 Fed. 751, 1897. Obtaining money by false pretense in China is an offense against the laws of the United States, within the meaning of the act conferring jurisdiction upon the United States court of China; an American citizen guilty of such offense may be tried and punished by the United States court of China. Biddle v. United States, 84 C. C. A. 415, 156 Fed. 759, 1907, 1U. 8S. Rev. Stat. 1878, § 5281, 5 Fed. Stat. Anno. 355, U. S. Comp. Stat. 1901, p. 3599, infra, § 2252. 2 Ibid. 3U. S. Rev. Stat. § 5285, 5 Fed. Stat. Anno. 365, U. S. Comp. Stat. 1901, p. 3600, infra, § 2256. 372 CRIMINAL LAW. [§ 299 with the United States; * suing forth or executing any writ or process against any foreign minister or his servants, the writs being also declared void; * and violating any passport; or in any other way infracting the law of nations, by violence to an am- bassador or foreign minister, or their domestics.® § 300. —Also offenses against Federal sovereignty. (b) Under the second head, namely, offenses against Federal sovereignty, may be classed, treason against the United States and misprision of treason;? holding any treasonable corre- spondence with a foreign government;?® recruiting soldiers to serve against the United States; * enlisting by a citizen within, or going out of the United States with intent to enlist in, the service of any foreign state;* fitting out and arming a vessel by a citizen of the United States, out of the United States, with intent to cruise against citizens of the United States; *® illegally holding office; ® false personation in naturalization; ” offenses against the elective franchise;* false personation of owners of stock or other claim against the United States; °® obstructing officers executing warrants under civil-rights laws; *° conspiring to prevent a person holding or accepting Federal office; ' injuring a person so holding office; ” offenses against 4U. S. Rev. Stat. § 5286, 5 Fed. Stat. Anno. 366. 5U. S. Rev. Stat. § 4063, 2 Fed. Stat. Anno. 816, U. S. Comp. Stat. 1901, p. 2760; infra, § 2250. 6U. S. Rev. Stat. § 4062, 2 Fed. Stat. Anno. 815. 1U. S. Rev. Stat. §§ 53831-5338, 7 Fed. Stat. Anno, 348-352 (§§ 5331- 5333), 3 Fed. Stat. Anno. 533 (§ 5334), 3 Fed. Stat. Anno. 146 (§ 5835), 3 Fed. Stat. Anno. 534 (§§ 5336-5338), U. S. Comp. Stat. 1901, pp. 3623, 3625. As to subsequent statutes, infra, §§ 2128 et seq. 2U. S. Rev. Stat. § 5335, 3 Fed. Stat. Anno. 146, infra, § 2135. 3U. S. Rev. Stat. § 5837, 3 Fed. Stat. Anno. 534, infra, § 2132. 4U. S. Rev. Stat. § 5282, 5 Fed. Stat. Anno. 211, U. S. Comp. Stat. 1901, p. 3599. 5U. S. Rev. Stat. § 5284, 5 Fed. Stat. Anno. 365. 6U. S. Rev. Stat. § 1787, 6 Fed. Stat. Anno. 609, U. S. Comp. Stat. 1901, p. 1214, see 7U. S. Rev. Stat. § 5424, 5 Fed. Stat. Anno. 211, U. S. Comp. Stat. 1901, p. 3668, infra, §§ 2187 et seq. 8U. S. Rev. Stat. §§ 5425-5429, 5 Fed. Stat. Anno. 212, 218, U. 8. Comp. Stat. 1901, pp. 3669, 3670, 5506, 2 Fed. Stat. Anno. 870, U. S. Comp. Stat. 1901, p. 3712; §§ 5511- 5519, 2 Fed. Stat. Anno. 870, 871; 5529, 5532, 2 Fed. Stat. Anno. 865; 804, 805; § 5518, 6 Fed. Stat. Anno. 613; § 5520, 2 Fed. Stat. Anno. 871; §§ 5529, 5532, 2 Fed. Stat. Anno. 865; infra, §§ 2187 et seq. See also United States v. rissey, 32 Fed. 147, 1887. 9U. S. Rev. Stat. §§ 5433-5438, 2 Fed. Stat. Anno, 81 (§ 5488), 309, (§ 5436), 370 (§ 5487), 3 Fed. Stat. Anno. 92 (§ 5435), U. S. Comp. Stat. 1901, pp. 3672-3674. 10U. S. Rev. Stat. § 5516, 1 Fed. Stat. Anno. 804, U. S. Comp. Stat. 1901, p. 3718. 11U. S. Rev. Stat. § 5518, 6 Fed. Stat. Anno. 613. 12U. S. Rev. Stat. § 5518, 6 Fed. Stat. Anno. 613. Mor- § 301] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE, 373 Indians; offenses on Guano islands;* political offenses against the Federal government committed by subject abroad; * perjury and forgery abroad;'* and the various offenses defined in the statutes relating to the postoffice; ‘7 to counterfeiting ; to piracy, revolt, and the slave trade.” Under this head may be noticed conspiracies against the Unitud' States, as hercafter specified. § 301. —Also offenses against individuals on Federal soil or on ships, or depriving individuals of civil rights. (c) Under the third head, namely, offenses against the per- sons of individuals, may be classed subjecting any person to deprivation of rights under color of law;? depriving any person of equal protection of law;* murder or manslaughter in any fort, dockyard, or other place or district of country under the sole and exclusive jurisdiction of the United States; * 13U. S. Rev. Stat. § 2128, 3 Fed. Stat. Anno. 379, § 2146, 3 Fed. Stat. Anno. 388; U.S. Rev. Stat. § 2150, 3 Fed. Stat. Anno. 391. 14U. S. Rev. Stat. § 5576, 3 Fed. Stat. Anno. 161, U. S. Comp. Stat. 1901, p. 3740. See Jones v. United States, 187 U. S. 202, 34 L. ed. 691, 11 Sup. Ct. Rep. 80, 1891, 15 Infra, § 319. 16 Infra, § 321. 17U. S. Rev. Stat. §§ 5463, et seq. 5 Fed. Stat. Anno. 957, et seq. 24 Stat. at L. 354, chap. 138, U. 8. Comp. Stat. 1901, p. 3688, and 25 Stat. at L. 496, chap. 1039. 18U, S. Rev. Stat. § 5457, 2 Fed. Stat. Anno. 310, U. S. Comp. Stat. 1901, p. 3683. 19 See U. S. Rev. Stat. § 5524, 4 Fed. Stat. Anno. 774, § 5551, 7 Fed. Stat. Anno. 100 et seq. 20 Infra, § 1873. 1U. S. Rev. Stat. § 5510, 1 Fed. Stat. Anno. 804, U. S. Comp. Stat. 1901, p. 3718. 2U. S. Rev. Stat. § 5519, 1 Fed. Stat. Anno. 805, U. S. Comp. Stat. 1901, p. 3714. Conspiracy to oppress and intimi- date citizen. of the United States, and prevent him from exercising the right to establish miners’ unions, is punishable in the Federal courts. United States v. Moore, 129 Fed. 630, 1904. Compare: United States v. Eber- hart, 127 Fed. 254, 1899. Knowingly permitting laborer or mechanic employed upon a dam across the Ohio river, the same being a public work, to labor more than eight hours in any one day, contrary to the provisions of the Federal statute; the Federal court on the Qhio side of the river, from which the work 1s being done, has juris- diction to try and punish for the offense, although the work is done beyond the line which divides the state of Ohio from the state of Ken- tucky. United States v. Sheridan- Kirk Contract Co. 149 Fed. 809, 1906. 8U. S. Rev. Stat. § 5339, 3 Fed. Stat. Anno. 231, 26 Stat. at L. 424, chap. 874, U. S. Comp. Stat. 1901, p. 3627. This jurisdiction is exclusive, un- less there is a reservation to the state in the act of cession. [U. S.] United States v. Bevans, 3 Wheat. 336, 4 L. ed. 404, 1818; United States v. Cornell, 2 Mason, 60, Fed. Cas. No. 14,867, 1819; United States v. Davis, 5 Mason, 356, Fed. Cas. No. 14,930, 1829. See Ft. Leavenworth R. Co. v. Lowe, 114 U. 8. 525, 29 L. ed. 264, 5 Sup. Ct. Rep. 995, 1885; United States v. Barney, 5 Blatchf. 294, Fed. Cas. No. 14,524, 1866; Sharon v. Hill, 24 Fed. 726, 1885. 374 CRIMINAL LAW. [§ 301 causing death on ship by explosive substances; * murder, man- slaughter, or rape upon the high seas, or in any river, haven, basin, or other like place out of the jurisdiction of the United States, etc;* offenses covered by statutes protecting persons on the high seas, or arms of the sea, or rivers or bays within the admiralty jurisdiction of the United States, and out of the jurisdiction of particular states;*—such as offenses upon the Great Lakes, which are “high seas” within the meaning of [Colo.] Reynolds v. People, 1 Colo. 179, 1869. [Mont.] Territory v. Burgess, 8 Mont. 57, 1 L.R.A. 808, 19 Pac. 558, 1888. Buying land for other than the purpose of governing the same, by the United States, does not exclude state jurisdiction. United States v. Penn, 48 Fed. 669, 1892. See Wills v. State, 3 Heisk. 141, 1871. Court of Pawhuska district exer- cises jurisdiction as United States courts for the punishment for crimes committed by Indians on the Osage or Kansas Indian reservation, which are enumerated in the statute cre- ating the court, only. Goodson v. United States, 7 Okla. 117, 54 Pac. 423, 1899. Lands acquired in state other than by purchase, jurisdiction —Where the United States acquires land within a state in any other way than by purchase with its consent, forts, arsenals, or other public build- ings erected thereon for the use of the general government, as instru- mentalities for the execution of its powers, will be free from any such interference and jurisdiction of the state as would destroy or impair their effective use for the purposes designed. But when not so used, the powers of the state over such places will be as full and complete as over any other places within its limits. Ft, Leavenworth R. Co. v. Lowe, 114 U. S. 525, 29 L. ed. 264, 5 Sup. Ct. Rep. 995, 1885. Mere reservation of the right “to serve state processes” in the ceded place does not exclude Federal juris- diction. Lasher v. State, 30 Tex. App. 387, 28 Am. St. Rep. 922, 17 S. W. 1064, 1891; United States v. Davis, 5 Mason, 356, Fed. Cas. No. 14,930, 1829. Where organic act of the terri- tory confers upon territorial courts jurisdiction to try and condemn for violation of both Federal and state laws, committed within the terri- tory, such courts have jurisdiction to try a territorial offense commit- ted on ground reserved by the Unit- ed States for governmental use and controlled by presidential proclama- tion. Re Terrill, 75 C. C. A. 418, 144 Fed. 616, 1896. See infra, § 315. 4U. S. Rev. Stat. § 5354, 1 Fed. Stat. Anno. 720, U. S. Comp. Stat. 1901, p. 3638. 5Infra, § 312. See U. S. Rev. Stat. §§ 5339, 5340, 3 Fed. Stat. Anno. 231-234, U. S. Comp. Stat. 1901, pp. 3627, 3628. 6U. S. Rev. Stat. §§ 5346, 5347, et seq. 1 Fed. Stat. Anno. 511, 6 Fed. Stat. Anno. 922, U. S. Comp. Stat. 1901, pp. 3630, 3631; U. S. Rev. Stat. §§ 5339, 5340, 3 Fed. Stat. Anno. 231-234, Open waters of the Great Lakes are “high seas” within the meaning of this act, and the United States courts have jurisdiction of crimes committed on board ships belonging to United States citizens navigating their waters. United States v. Rodgers, 150 U. S. 249, 87 L. ed. 1071, 14 Sup. Ct. Rep. 109, 1894, af- firming 46 Fed. 1, 1891. See also United States v. Beyer, 31 Fed. 35, 1887. Compare: United States v. Peter- son, 64 Fed. 145, 1894, which dis- tinguishes the case of United States v. Rodgers, supra, and denies juris- diction to the Federal district court of Wisconsin over a crime committed on board a vessel navigating waters within the Michigan Federal district. See also Bigelow v. Nickerson, 30 § 302] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 375 the Federal Statute; and kidnapping persons with intent to enslave.” § 302. —Also offenses against property of Federal gov- ernment, or on Federal soil, or on ships. (d) Under the fourth head, namely, offenses against property, may be classed embezzling or purloining any arms or other ordinance belonging to the United States, by any person having the charge or custody thereof, for purposes of gain, and to impede the service of the United States; * customhouse frauds; * frauds in stealing implements used in printing obligations or papers of importance;* burning, or aiding to burn, any dwelling house, store, or other building, within any fort, dockyard, or other place under the jurisdiction of the United States; * setting fire to, or burning, or aiding to set fire to, or burn, any arsenal, armory, etc., of the United States, or any vessel built or building, or any materials, victuals, or other public stores; * taking and carrying away, with intent to steal, the personal goods of another, from within any of the places under the sole and exclusive cognizance of the United States, or being accessory thereto; ° larceny on the high seas. L.R.A. 336, 17 C. C. A. 1, 34 U.S. App. 261, 1895, 70 Fed. 113, af- firming 59 Fed. 202, 1893. See note in 38 Am. St. Rep. 804. —Offense at sea within cannon shot of shore is cognizable in the ¥ederal courts; United States v. Grush, 5 Mason, 290, Fed. Cas. No. 15,268, 1829; United States v. Holmes, 5 Wheat. 412, 5 L. ed. 122, 1820. Vessel within territorial limits of state—But 4 ship lying at anchor between Boston and Chelsea, off Constitution wharf, at the distance of 3 or 4 of a mile from said wharf, jn water of the depth of 4 or 5 fathoms at low tide, and between % and 3 a mile’s distance from the navy yard in Charlestown, is within the body of the county of Suffolk; and an offense so committed on board a merchant ship so situate, owned by a citizen or citizens of the United States, is exclusively cog- nizable by the courts of the state. Com. v. Peters, 12 Met. 387, 1847; People v. Welch, 141 N. Y. 266, 24 L.R.A. 117, 38 Am. St. Rep. 793, 36 N. E. 328, 1894. and the various forms of robbery and See also infra, §§ 313-315. 7U. S. Rev. Stat. § 5525, 4 Fed. Stat. Anno. 774, U. S. Comp. Stat. 1901, p. 3715. 1U. S. Rev. Stat. § 5339, 3 Fed. Stat. Anno, 231, 4 Fed. Stat. Anno. 790, U. S. Comp. Stat. 1901, p. 3675. Robbery of another of any kind of personal property belonging to the United States; the jurisdiction to try and punish the offense is vested in the United States courts. Ex parte Roach, 166 Fed. 344, 1908. 2U. S. Rev. Stat. § 5444, 2 Fed. Stat. Anno. 773, U. S. Comp. Stat. 1901, 3677. 3U. S. Rev. Stat. §§ 5453, 5454, 2 Fed. Stat. Anno. 35, 309, U. 8. Comp. Stat. 1901, pp. 3681, 3682. 4U. S. Rev. Stat. § 5385, 1 Fed. Stat. Anno. 457, U. S. Comp. Stat. 1901, p. 3648. 5U. S. Rev. Stat. § 5386, 1 Ped. Stat. Anno. 457. 6 And see Com. v. Gaines, 2 Va. Cas. 172. Burden is on the government to show that the crime was committed on land which was under the ex- elusive jurisdiction of the United CRIMINAL LAW. [§ 303 376 § 303. —Also against public Federal justice and policy. (e) Under the fifth head, namely, offenses against public jus- tice, may be classed bribing any United States judge or legisla- tor with intent to obtain any opinion, judgment, or vote, in any suit depending before him;? receiving such bribe;? extortion of any kind;* embezzlement by public officers; * other forms of official misconduct; * obstructing any officer of the United States in the service of any legal writ or process whatsoever ; demanding and receiving, by reason of his office, any greater fees than those allowed by law, by a public officer or his deputy ; ® endeavoring to impede, intimidate, or influence any juror, witness, or officer in any court of the United States in the discharge of his duties, or by threats or force obstruct- ing or impeding, or endeavoring to impede the due adminis- tration of justice therein;” committing perjury, or causing another to do so, in any suit or controversy depending in any of the courts of the United States, or in any deposition taken in pursuance of the laws of the United States; * taking other forms of false oaths forbidden by acts of Congress; ® endeavor- ing to defeat the course of justice; % circulating obscene literature through the mail or customhouse.™ States. United States v. Meaghlier, 37 Fed. 875, 1888. Larceny of whisky from bonded warehouses is triable in state courts. The Federal courts have jurisdiction to punish only for removal by owner without payment of taxes. State v. Harmon, 104 N. C. 792, 10 8. E. 474, 1889. 1U, 8. Rev. Stat. § 5451, 1 Fed. Stat. Anno. 713, U. S. Comp. Stat. 1901, p. 3680. 2U. S. Rev. Stat. §§ 5500-5502, 1 Fed. Stat. Anno. 714, 715, U. 8. Comp, Stat. 1901, p. 3709. 8U. 8. Rev. Stat. §§ 5481-5487, 3 Fed. Stat. Anno. 805 (§ 5484), 5 Fed. Stat. Anno. 686 (§ 5486), 687 (§ 5487), 7 Fed. Stat. Anno. 180 (§ 5482), U. S. Comp. Stat. 1901, pp. 3701, 3703. 4U. S. Rev. Stat. §§ 5488-5490, 6 Fed. Stat. Anno. 572, 573. 5U. S. Rev. Stat. §§ 5482, et seq. 7 Fed. Stat. Anno. 180. 6U. 8. Rev. Stat. § 5481, 6 Fed. Stat. Anno. 610. 7U. 8S. Rev. Stat. §§ 5404-5406, 5 Fed. Stat. Anno. 390, 391, U. S. Comp. Stat. 1901, p. 3657. See United States v. Logan, 45 Fed. 872, 1891. 8U. 8. Rev. Stat. 1878, § 5392, 5 Fed. Stat. Anno. 701. State court sitting in Federal building—Perjury before, jurisdic- tion—Where a state court was temporarily and legally sitting in the United States government build- ing, and perjury was committed be- fore it, the state courts have juris- diction to punish the offense. Exum v. State, 90 Tenn. 501, 15 L.R.A. 381, 25 Am. St. Rep. 700, 17 S. W. 107, 1892. 8Infra, § 321. 10U. 8. Rev. Stat. 1878, § 5407, 5 Fed. Stat. Anno. 392, U. S. Comp. Stat. 1901, p. 3658. 11U. S. Rev. Stat, § 1785, U. S. Comp. Stat. 1901, p. 1214, 6 Fed. Stat. Anno. 608. Infra, §§ 2179— 2182, § 305] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 377 § 304. State courts not deprived of jurisdiction. By clauses in several of the acts referred to, it is expressly de- elared that nothing therein shall be construed to deprive the courts of the individual states of jurisdiction under the laws. of the several states, over offenses made cognizable by these acts. Such is the case, as has been noticed, with the crimes of forging, coining, and counterfeiting.’ By the act establishing and regulating the Postoffice Department, authority is given to the Federal officers to prosecute in the state courts offenses: against the Department.” III. In Wuat Courts Orrenses CoGNIZABLE BY THE UNITED: STaTEs ARE TO BE TRIED. When the state and the Federal courts have concurrent juris- diction. § 305. State courts have no concurrent jurisdiction unless given by Congress. Under the Federal Constitutiom exclusive jurisdiction is vested in the Federal courts of all offenses cognizable under the authority of the United States, unless where the laws of the United States shall otherwise direct.’ In the language of Judge Washington, in delivering the opinion of the Supreme Court in a leading case, “Con- gress cannot confer jurisdiction upon any courts but such as exist under the Constitutional laws of the United States, although the state courts may exercise jurisdiction in cases authorized by the laws of the state, and not prohibited by the exclusive jurisdiction of the Federal courts.? How far the grant of exclusive jurisdiction extends is discussed in another work.® 1See infra, § 955. 8 Wharton, Am. Law, § 524. 2U. S. Rev. Stat. 1878, § 3833, 5 Act constituting an offense under Fed. Stat. Anno. 794, U. S. Comp. the statute of a state, which is cog- Stat. 1901, p. 2610. nizable in the courts of the state, 1 Houston v. Moore, 5 Wheat. 1, does not deprive the Federal courts 5 L. ed. 19, 1820. of jurisdiction to prosecute for the: 2Ibid. See United States v. Ames, same act, where it also constitutes 1 Woodb. & M. 76, 9 Law Rep. 295, an offense against the laws of the Fed. Cas. No. 14,441, 1845. United States. United States v. As to concurrent jurisdiction, see Lackey, 99 Fed. 952, 1900. Wharton Crim. Pl. & Pr. § 242. Bank officer, having stolen prop- 378 CRIMINAL LAW. [§ 306 § 306. Conflict of opinion as to state jurisdiction. Stat- utes having been enacted by Congress giving, as to several lines of offenses, concurrent jurisdiction to the state courts, it has been held in several of the states, not without the sanction of repeated intimations of the Supreme Court of the United States, that although the state courts may exercise jurisdiction in cases authorized by the laws of the states, and not prohibited by the exclusive jurisdiction of the Federal courts, yet it cannot be considered obligatory on the state tribunals to exercise erty belonging to the bank, is liable to punishment on prosecution for larceny at common law, or under state statutes, notwithstanding the fact that he is subject to punish- ment for embezzlement under the Federal statute. Com. v. Barry, 116 Mass. 1, 1874, Bankrupt obtaining goods on credit with intent to defraud, with- in three months before the giving of bankruptcy proceedings, is triable in the state courts on charge of the statutory offense of conspiracy with others to obtain goods by means of false pretense, notwith- standing the fact that he is also liable to criminal prosecution under the bankruptcy act. Com. v. Walk- er, 108 Mass. 309, 1871. Counterfeiting current coin of the United States may be punished both in the state and the Federal courts. Harlan v. People, 1 Dougl. (Mich.) 207, 1843. Criminal conspiracy charged to have been entered into in the Dis- trict of Columbia cannot be exclud- ed for the jurisdiction of the dis- trict court of that territory, because the offense is also triable in one or more of the states of the Union, on the theory that it was “lawfully triable in any other court,” within the meaning of the statute of the District of Columbia (Comp. Stat. chap. 35, § 23), excluding offenses which are so triable. Hyde v. Shine, 199 U. S. 62, 50 L. ed. 90, 25 Sup. Ct. Rep. 760, 1905; Diamond v. United States, 199 U. S. 88, 50 L. ed. 99, 25 Sup. Ct. Rep. 766, 1905. Derailing mail train, and thereby causing homicide, is punishable in the state courts, notwithstanding the fact that the act is also an of- fense against the laws of the United States. Crossley v. California, 168 U. 8. 640, 42 L. ed. 610, 18 Sup. Ct. Rep. 242, 1898. Extorting money under threat to accuse one of criminal violation of Federal internal revenue laws is punishable in the courts of the state where the offense is committed. People v. Sexton, 132 Cal. 37, 64 Pac. 107, 1901, affirmed in 189 U. S. 319, 47 L. ed. 838, 23 Sup. Ct. Rep. 543, 1903. Federal and state courts exercis- ing jurisdiction within the same territory occupy different planes, and the criminal laws of the state have no application to acts and pro- ceedings of the Federal courts in re- spect to matters solely within their control, and vice versa. Re Fair, 100 Fed. 149, 1900. Use of instrument not possessing the requisite similitude to a nation- al obligation or security to be means of perpetrating « common-law cheat is not an offense against the United States, and the crime is cognizable in the state courts only. United States v. Barrett, 111 Fed. 369, 1901. A murder prosecution pending in territorial court at time of estab- lishing a Criminal Code for the terri- tory, must be regarded as within the “general jurisdiction” in crimi- nal cases conferred by such act, whether the court be one newly created by that act, or an existing tribunal continued thereby. Bird v. United States, 187 U. S. 118, 47 L. ed. 100, 23 Sup. Ct. Rep. 42, 1902. Obtaining money under false pre- § 307] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 379 such jurisdiction." On the other hand, as will be seen, we have cases in which state courts of high authority have accepted this jurisdiction. § 307. As to offenses distinctively against the United States, the states are independent sovereigns. Of the vexed questions here involved we may venture to accept the following solutions: 1. Congress cannot constitutionally confer on a state court jurisdiction over offenses exclusively against the Federal govern- ment. Statutes conferring such jurisdiction do not and cannot bind the state courts as such. 2. Offenses which are directed against the sovereignty of a state, or which directly affect the state or its population, are punishable in such state, notwithstanding the fact that such offenses are also directed against the sovereignty of the Federal government, unless the Constitution gives the Federal govern- ment exclusive jurisdiction over the offense;* and even where the Federal courts have exclusive jurisdiction of one aspect of an offense, this does not prevent a state court from prose- cuting another aspect of the same offense. Whether one sovereign, by prosecuting an offense thus indictable both by itself and by another sovereign, bars a prosecution by such other sovereign, is elsewhere discussed.® tense of being pension agent is not cognizable in the Federal courts ex- clusively. Pearce v. State, 115 Ala. 115, 22 So. 502, 1897. Violations of the act denouncing peonage may be prosecuted in the Federal court, notwithstanding the fact that the same acts may be prosecuted in the state courts under the name of kidnapping and false imprisonment. United States v. McClellan, 127 Fed. 971, 1903. 1Prigg v. Pennsylvania, 16 Pet. 539, 630, 10 L. ed. 1060, 1095, 1842. 1“A state court of original juris- diction, having the parties before it, may, consistently with Federal legis- lation, determine cases at law or in equity arising under the Constitu- tion or laws of the United States, or involving rights dependent on such Constitution or laws.” Harlan, J., in Robb v. Connolly, 111 U. S. 624, 28 L. ed. 542, 4 Sup. Ct. Rep. 544, 1883, cited infra, § 808; United States v. Wells, 15 Int. Rev. Rec. 56, 11 Am. L. Reg. N. 8. 424, Fed. Cas. No. 16,665, 1872. 2H. g., where the uttering of a forged treasury note is prosecuted as an uttering in the Federal courts, and as a cheat in the state courts. Wharton, Am. Law, § 524. Infra, § 343. 8Infra, §§ 318, 343. And see Wharton, Crim. Pl. & Pr. § 441. As to coining, in addition to points above given, see supra, § 305, foot- note 3; infra, § 956. As to larceny and mail robbery, see State v. Townsend, Houst. Crim. Rep. (Del.) 10, 1863. As to perjury, see infra, § 1539. ec to treason, see infra, §§ 1026- 1037. 380 CRIMINAL LAW. [§ 307 8. Offenses exclusively against the United States are exclusively cognizable in the Federal courts; and of- fenses exclusively against the states are exclusively cog- nizable 4Propositions in text dependent upon principles of constitutional construction, which it is out of the range of the present treatise to dis- cuss. If, however, as is here as- sumed, each state is sovereign as to all powers not ceded to the Federal government, the state has jurisdic- tion of all crimes committed within its borders, unless the exclusive jurisdiction of such crimes is ceded to the Federal government. And if each state is sovereign as to its own functionaries, these functionaries cannot accept any jurisdiction con- ferred on them by the Federal gov- ernment, unless the right to impose this jurisdiction is ceded by the states to the Federal government. Otherwise the Federal legislature could appropriate to itself the time, the duty, and the allegiance of state officials, and thereby put them under its immediate control. As to perjury, see infra, § 1539. Among the rulings bearing on this topic may be cited the following: In Massachusetts, it is said that the enactment of a Federal statute directing the punishment of a crime, as against the United States, excludes all state jurisdiction, unless the con- current jurisdiction of the states be saved in the statute. “By the terms of the judiciary act,” said Ames, J., in the supreme court of Massachu- setts, in reference to this point, “the courts of the United States are vest- ed with the exclusive cognizance of all crimes that are made punishable by act of Congress, except where the act of Congress makes other pro- vision; and it would therefore seem that the crime of embezzlement by a cashier of a national bank located within our territory is taken out of the jurisdiction of our courts. This is at least strongly implied in Com. v. Tenney, 97 Mass. 50, 1867, and in fact is conceded by the learned attorney general in the argument of this case.” See [Conn.] State v. Tul- in the state. courts.* The Federal courts, there- ler, 34 Conn. 280, 1867. [Mass.] Com. v. Fuller, 8 Met. 313, 41 Am. Dec. 509, 1844; Com. v. Felton, 101 Mass. 204, 1869. [Pa.] Com. v. Ket- ner, 92 Pa. 372, 36 Am. Rep. 692, 1880. See also infra, § 1287. Even an accessory to an embez- zlement of the funds of a national bank by one of its officers cannot be tried in Massachusetts, even though the offense of an accessory is not provided for by the Federal statutes. Com. v. Felton, 101 Mass. 204, 1869. See Com. v. Ketner, 92 Pa. 372, 37 Am. Rep. 692, 1880. Contrary doctrine—On the other hand, it has been held in the same state in Com. v. Barry, 116 Mass. 1, 1874, that a larceny committed by an officer of a national bank of the property of the bank may be punished in a state court, notwith- standing that he may also be sub- ject to punishment for embezzle- ment under the United States stat- ute. “The fact,” so it is argued in the opinion of the court, “that Hine was teller of the bank subjects him to the punishment imposed for his breach of trust in that capacity, un- der the statute of the United States; it does not relieve him from his lia- bility to punishment for the larceny at common law, or under statutes of the state. There is no identity in the character of the two offenses, al- though the same evidence may be relied upon to sustain the proof of each. An acquittal or conviction of either would be no bar to a prosecu- tion for the other.” See Com. v. Carpenter, 100 Mass. 204, 1868; Morey v. Com. 108 Mass. 433, 1871. Connecticut doctrine. — To the same effect is State v. Tuller, 34 Conn. 280, 1867, where it was held that while the state courts cannot exercise jurisdiction of the offense of embezzlement by an officer of a na- tional bank of the property of a bank, they have jurisdiction of the § 307] [IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. larceny or purloining by such officer of the property of others left with the bank for safe-keeping. At the same time, it is admitted in Connec- ticut that offenses against the Fed- eral government are exclusively cog- nizable in Federal courts. State v. Tuller, supra; Ely v. Peck, 7 Conn. 240, 1829; infra, § 1288. - Fraudulent conversion by officer of national bank.—In Com. v. Tenney, 97 Mass. 50, 1867, it was held that a state court has jurisdiction of an indictment against an officer of a national bank for fraudulently con- verting to his own use the property of an individual deposited in the bank, under a state statute making such fraudulent conversion “larceny.” See Hoke v. People, 122 Ill. 511, 519, 13 N. E. 823, 1887, as to jurisdiction of state court in case of forgery of draft by officer of a national bank. Compare: People v. Fonda, 62 Mich. 401, 407, 29 N. W. 26, 1886, denying jurisdiction of state court in prosecution for larceny of funds of national bank by its clerk. No objection to the jurisdiction of state courts, that the same acts con- stituting forgery under state laws are also violations of the national banking laws, and that the offender may be subjected to punishment for both. Cross v. North Carolina, 132 U. S. 131, 33 L. ed. 287, 10 Sup. Ct. Rep. 47, 1889. Perjury in naturalization proceed- ings, no matter what may be the court in which the false oath is taken, 1s held to be an offense against the general government, and not punishable in state courts. [Ark.] State v. Kirkpatrick, 32 Ark. 117, 1878. [Cal.] People v. Kelly, 38 Cal. 145, 99 Am. Dec. 360, 1870. [Ind.] State v. Adams, 4 Blackf. 146, 1840. [N. Y.] People v. Sweetman, 3 Park. Crim. Rep. 358, 1855. See also infra, §§ 1288, 1539. By other courts, however, for the reason that perjury in such cases strikes at state as well as Federal integrity, this view is denied. Infra, § 1539; State v. Whittemore, 50 N. H. 245, 9 Am. Rep. 196, 1870; Rump v. Com. 30 Pa. 475, 1858. See United States v. Bailey, 9 Pet. 238, 9 L. ed. 113, 1835. Yet we may agree that the state 381 courts have no jurisdiction of per- jury before Federal land officers (People v. Kelly, 38 Cal. 145, 99 Am, Dec. 360, 1870; and see also State v. Pike, 15 N. H. 83, 1844; State v. Adams, 4 Blackf. 146, 1840); and of perjury in Federal judicial investi- gations (Ex parte Bridges, 2 Woods, 428, Fed. Cas. No. 1862, 1875, sub. nom. Brown v. United States, 14 Am. L. Reg. N. S. 566; State v. Shel- ly, 11 Lea, 594, 1882); though it may be otherwise as to special as- pects of perjury under Federal stat- utes (infra, § 1539). See, on this topic, Wharton, Am. Law, § 524, and Exum v. State, 90 Tenn. 501, 15 L.R.A, 381, 25 Am. St. Rep. 700, 17 S. W. 107, 1892. ~—Where state legislature makes additional provisions to the proced- ure prescribed by Congress for the naturalization of aliens, requiring the application to be made in the form of a petition accompanied by an affidavit of some citizen, which petition and affidavit are required to be filed a specific number of days be- fore final hearing or action on the petition, perjury in making such af. fidavit is not cognizable in the Fed- eral courts, but is punishable in the state courts only. United States v. Severino, 125 Fed. 949, 1903. Selling liquor without Federal license.—In Ohio, on an information for selling distilled liquors without a license, contrary to the act of Con- gress, it was held by all the judges that the United States could not prosecute in the state courts. In a previous case, on a similar question, the court had been equally divided. United States v. Campbell, Tappan (Ohio) 29. Larceny of whisky from bonded warehouses is triable in state courts; Federal courts punish only removal without paying tax. State v. Har- mon, 104 N. C. 792, 10 S. E. 474, 1890. Stealing packages from mail— In Virginia, it has been decided that the courts of that state have no jurisdiction of stealing packages from the mail, that being an of- fense created by act of Congress (Com. v. Feely, 1 Va.. Cas. 321, 1815); and the same view was taken in an action brought to recover a 382 penalty for a breach of the revenue laws, notwithstanding such penalty being expressly made recoverable in the state courts (Sergeant, Const. Law, 288). Census—Penalty for failure to make returns of family.—In Ken- tucky, in an action to recover a penalty under an act of Congress, for a refusal to make return to the marshal of a list of the defendant’s family, it was held that, as no tri- bunal of the state had an inherent or concurrent jurisdiction in such cases, the jurisdiction of the courts of the Federal government must nec- essarily be exclusive, and that the state courts could take no cogniz- ance. Haney v. Sharp, 1 Dana, 442, 1833. Counterfeiting current coin.—In Missouri, it has been even said that the power to punish counterfeiting current coin is, notwithstanding the state, vested exclusively in Congress; that the states have no concurrent legislation on the subject; and that a statute of a state providing for the cognizance and punishment of such crimes is void. Mattison v. State, 3 Mo. 421, 1838. See State v. Shoe- maker, 7 Mo. 177, 1841. As to coining, see generally, supra, § 305, footnote 3; infra, § 955. Of coining and counterfeiting, how- ever, the state courts it is generally agreed have independent jurisdiction, so far as such offenses constitute cheats, either consummated or at- tempted, the offense being one which, at least in some of its aspects, is di- rected against the sovereignty of the particular states, and the Jjurisdic- tion originally existing in the state courts, and not being formally ceded to the general government. [U. S. Prigg v. Pennsylvania, 16 Pet. 539, 630, 10 L. ed. 1060, 1095, 1842; Fox v. Ohio, 5 How. 410, 12 L. ed. 213, 1847. [Cal.] People v. White, 34 Cal. 183, 1868. [Ind.] Chess v. State, 1 Blackf. 198, 1822; Waldo v. Wal- lace, 12 Ind. 569, 1859; Snoddy v. Howard, 51 Ind. 411, 19 Am. Rep. 738, 1875. [Iowa] State v. McPher- son, 9 Iowa, 53, 1859. [Mass.] Com. v. Fuller, 8 Met. 318, 41 Am. Dec. 509, 1844. [Mich.] Harlan v. Peo- ple, 1 Dougl. (Mich.) 207, 1843. [N. J.] United States v. Smith, 4 N. CRIMINAL LAW. [§ 307 J. L. 33, 1818. [N. ¥.] Manley v. People, 7 N. Y. 295, 1852. [Ohio] Sutton v. State, 9 Ohio, 133, 1841. [Pa.] Rump v. Com. 30 Pa. 475, 1858. [S. C.] State v. Pitman, 1 Brev. 32, 2 Am. Dec. 645, 1805; State v. Antonio, 3 Brev. 562, 1816. (Tenn.] Sizemore v. State, 3 Head, 26, 1859. [Vt.] State v. Randall, 2 Aik. (Vt.) 89, 1826. [Va.] Jett v. Com. 18 Gratt. 933, 1866; Hendrick v. Com. 5 Leigh, 707, 1835. Compare: Rouse v. State, 4 Ga. 136, 1848. For a fuller discussion, see Whar- ton, Am. Law, § 524; also supra, § 305, footnote 3. Pennsylvania doctrine—In Penn- sylvania it is settled that while the Federal courts have exclusive juris- diction of offenses of which Penn- sylvania has no common-law or statutory cognizance, e. g., embezzle- ment by officer of national bank (Com, v. Ketner, 92 Pa. 372, 37 Am. Rep. 692, 1880), it is otherwise with offenses of which Pennsylvania has. common-law or statutory jurisdic- tion, cv. g., forgery at common law (Com. v. Luberg, 94 Pa. 85, 1880). In Bletz v. Columbia Nat. Bank, 87 Pa. 87, 30 Am. Rep. 3438, 1878, we: have the following from Agnew, C. J.: “We may now refer to some of our own decisions and laws. Thus it was held that our courts had juris- diction of a forgery of power of at- torney to obtain a pension under an act of Congress. Com. v. Schaffer, 4 Dall. xxvi, 1 L. ed. 926, 1797. In White v. Com. 4 Binn. 418, 1812,. this court decided that passing a counterfeit note of the Bank of the United States was indictable under the act of 22d April, 1794, specially ] including the notes of that bank.” After noticing Buckwalter v. Unit- ed States, 11 Serg. & R. 198, 1824,. and Huber v. Reily, 53 Pa. 112, 1866,. the opinion thus proceeds: “The leg- islation of our state has run in the same direction. In 1829, Judge King, Thomas I. Wharton, and Judge Shal- er reported the penal act of that year. The act of 23d April, 1829, provided for forging and uttering any gold or silver coin then or there- after passing or in circulation im this state, and for forging, counter- feiting, or uttering a counterfeit: § 308] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 383 fore, have no jurisdiction of offenses exclusively against the states.® IV. Conruicr as to Haseas Corpus. § 308. Right of state courts to discharge from Federal arrest. For many years after the adoption of the Federal Constitution the state courts claimed to have the right to issue writs of habeas corpus to examine the validity of commit- ments under Federal process.’ note of the Bank of the United States. In 1860 the same great criminal lawyer, Judge King, with Judge Knox and another, was upon a commission to codify the criminal law, and reported the new sections of the act of 31st March, 1860, from 156 to 1638 inclusive, punishing of- fenses relating to the coin; and in the report referred to the laws of the United States, and the case of Fox v. Ohio, 5 How. 410, 12 L. ed. 218, deciding upon an _ elaborate argument that the clauses of the Constitution of the United States, relating to the power to coin money and regulate its value, do not pre- vent the state from enacting a law to punish the offense of passing counterfeit coin of the United States. These laws have remained unques- tioned, yet I do not assert that none of the provisions applied to the coin of the United States can be ques- tioned.” But any doubt that might arise on this point would not touch the indictability of passing counter- feit coin as cheats. South Carolina doctrine. —In South Carolina, the courts at one time went the extreme length of saying that every offense against the laws of the United States is an offense against the laws of South Carolina, and that she has a right to punish all violations of her law, unless the exclusive power to punish has been delegated by the Constitution of the United States to the judiciary estab- lished by it. State v. Wells, 2 Hill, L. 687, 1835. Such, however, seems now no longer the law in that state. State v. McBride, Rice, L. 400, 1839. We have had, it is true, rulings Guardian embezzling pension—As will be hereafter seen, an indictment lies in the United States circuit court, under the Federal statute, against a guardian for embezzling pension money paid to him for his ward. United States v. Hall, 98 U. S. 348, 25 L. ed. 180, 1879, cited infra, § 1296. 5 Bush v. Kentucky, 107 U. S. 110, 27 L. ed. 354, 1 Sup. Ct. Rep. 625, 1882; United States v. Penn, 4 Hughes, 491, 48 Fed. 669, 1880. Perjury committed before a state court legally sitting in United States government building is triable in state courts. Exum v. State, 90 Tenn. 501, 15 L.R.A. 831, 25 Am. St. Rep. 700, 17 S. W. 107, 1892. 1See Sergeant, Const. Law, 236, 287. [U. S.] Martin v. Hunter, 1 Wheat. 304, 4 L. ed. 97, 1816. [Ala.] Ex parte Hill, 38 Ala. 429, 1865. [Conn.] Lanahan v. Birge, 30 Conn. 438, 1861. [Mass.] Com. v. Harri- rison, 11 Mass. 63, 1814; Com. v. Chandler, 11 Mass. 83, 1814; Com. v. Downes, 24 Pick. 227, 1839; San- born v. Carleton, 15 Gray, 399, 1860; McConologue’s Case, 107 Mass. 157, 1871. [N. H.] State v. Dimick, 12 N. H. 194, 37 Am. Dec. 197, 1841. [N. Y.] United States v. Wyngall, 5 Hill, 16, 1843; Husted’s Case, 1 Johns. Cas. 136, 1801; Re Stacy, 10 Johns. 328, 1813. [N. C.] Ex parte, Mason, 5 N. C. 1 Murph. 336, 1809. [Ohio] Disinger’s Case, 12 Ohio St. 256, 1861. [Pa.] Com. ex rel. Web- ster v. Fox, 7 Pa. 336, 1847; Com. ex rel. McLain v. Wright, 3 Grant, Cas. 437, 1863; Com. ex rel. Menges v. Camac, 1 Serg. & R. 87, 1814. 384 CRIMINAL LAW. [§ 308 by Federal judges, that they have exclusive jurisdiction on habeas corpus, whenever the applicant is restrained, illegally or otherwise, under authority of the United States, whether by virtue of a formal commitment or otherwise.? But such claim was not recognized by the state courts, and cases are not infrequent in which by the latter tribunals persons held by the military authorities of the United States, under color of illegal enlistments, have been discharged.* On the other hand, it was at one time held in New York that a state court will not, on habeas corpus, review the legality of the arrest of an alleged deserter by a provost marshal of the United States; * though this point was subsequently reconsidered, and it was held that the court would issue the writ to direct a provost marshal to produce an infant, under eighteen years, whom he claimed to hold as a soldier and deserter.® In 1867 a case of collision arose in New York between the Federal and state courts on this issue, under the following circumstances: A commander in the army of the United States made return to a writ of habeas corpus issued by the state court, that he held the petitioner as a recruit in the United States Army, and pursuant to laws of the United States reg- {Wis.] Higgins’s Case, 16 Wis. 351, 1864. See Barlow’s Case, 8 Western L. J. 567; 2 New York Rev. Stat. 563, § 22; ‘Olmstead’s Case, 3 Hall’s L. J. 206; Re Merritt, 5 Hall’s L. J. 497. In Wharton, Crim. Pl. & Pr. §§ 738 a, 980 et seq. will be found rulings of the United States Su- preme Court on the topics in the text. though see Spangler’s Case, 11 Mich. 298, 1862. 2Re Farrand, 1 Abb. (U. 8.) 140, Fed. Cas. No. 4678, 1867; Re Mc- Donald, 9 Am. L. Reg. 662, 1 Low. Dec. 100, Fed. Cas. Nos. 8751, 8752, 1865; Farrand v. Fowler, 2 Am. L. J. 4. Validity of Federal process.—That the exclusive jurisdiction to try the scope and validity of United States process is vested in United States courts, see Covell v. Heyman, 111 U. S. 176, 28 L. ed. 390, 4 Sup. Ct. Rep. 353, 1883; Ex parte Royall, 117 U. 8. 241, 29 L, ed. 868, 6 Sup. Ct. Rep. 734, 1885; Re Johnson, 45 Fed. 477, 1891. Federal prisoner released by state writ. Therefore, where a prisoner confined under sentence of Federal courts is released by virtue of a writ issued out of a state court, he may be rearrested on order of the Federal court. Re Johnson, 46 Fed. 477, 1891. 3 Re Reynolds, 6 Park. Crim. Rep. 276, 1860. See also Re Hamilton, 1 Ben. 455, Fed. Cas. No. 5976, 1867. Compare: Norris v. Newton. 5 Mclean, 92, Fed, Cas. No. 10307, 1850; United States v. Rector, 5 McLean, 174, Fed. Cas. No. 16132, 1850; Re Veremaitre, 9 N. Y. Leg. Obs. 137, Fed. Cas. No. 16915. 4Iix parte Anderson, 16 Iowa, 595, 1864; Re Hopson, 40 Barb. 34, 1863. 5Re Barrett, 42 Barb. 479, 1863. See People ex rel. Starkweather v. Gaul, 44 Barb. 98, 1865; Re Martin, 45 Barb, 142, 1865. § 308] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 385 ulating enlistments. The state court examined the validity of the enlistment, determined it to be invalid, and directed the recruit to be discharged. The officer refused to discharge him, and the state court committed the officer for contempt. The commander sued out a habeas corpus in the district court of the United States, who discharged, him, holding that the state court exceeded its jurisdiction in examining the validity of the enlistment; and that it had no power to proceed beyond ascertaining that the officer held the recruit by color of au- thority from the United States.® It is, no doubt, clear that a habeas corpus issued by a state judge has no authority within the limits of the sovereignty assigned by the Constitution to the United States; but at the same time each court, on application made to it for this writ, is compelled to determine where the limits of such sovereignty are to be placed.® It is conceded on all sides that the state courts cannot, on habeas corpus, examine whether a particular offense, charged in an indictment found in a Federal court, is or is not an offense against the United States, or go beyond such indictment.® And in 1871 the question was settled, so far as concerns enlistments, by an express ruling of the Supreme Court of the United States to the effect that state courts have no jurisdiction to discharge in such cases by habeas corpus, the exclusive jurisdiction being in the Federal courts.’ It is otherwise, however, in respect to matters of which the Federal government has not exclusive jurisdiction. In such 6Re Farrand, 1 Abb. (U. S.) 140, Fed. Cas. No. 4678, 1867. 7 Ableman v. Booth, 21 How. 506, 16 L. ed. 169, 1858; Ex parte Sifford, 5 Am. L. Reg. 659, Fed. Cas. No. 12,848; Ex parte Kelly, 37 Ala. 474, 1864. 8 Though see Re Farrand, 1 Abb. (U. 8.) 140, Fed. Cas. No. 4,678, 1867. 9Ex parte Hill, 5 Nev. 154, 1869. 10 Tarble’s Case, 13 Wall. 397, 399, 20 L. ed. 597, 1871. This question is fully considered in Wharton, Crim. Pl. & Pr. §§ 978 et seq. Validity of an enlistment may be inquired into by a Federal court. Crim. L, Vol. I.—25. See McCall v. McDowell, 1 Abb. (U. 8.) 212, Deady, 223, 1 Pac. L. Mag. 360, Fed. Cas. No. 8673, 1867; Ex parte Schmeid, 1 Dill. 587, Fed. Cas. No. 12,461, 1871; McCall’s Case, 5 Phila. 259, 1863. In case of enlistment of minors, the right is not taken away by the Federal statutes of 1864, though it is not now within the jurisdiction of state courts. Re Neill, 8 Blatchf. 156, Fed. Cas. No. 10,089, 1871; In Re McDonald, 1 Low. Dec. 100, Fed. Cas. No. 8752, 1865. See United’ States ex rel. Deming v. Hanchett, 18 Fed. 26, 1883. 386 CRIMINAL LAW. [§ 308 case the courts of the states “have the right to inquire into the grounds upon which any person, within their respective terri- torial limits, is restrained of his liberty, and to discharge him, if it be ascertained that such restraint is illegal; and this, notwithstanding such illegality may arise from a violation of the Constitution or the laws of the United States.” # § 309. Federal courts have statutory powers of hab- eas corpus in Federal cases. In the Revised Statutes of the United States (edition 1878), compiling the previous stat- utes on this subject the following provisions are made as to writs of habeas corpus: (751) “The Supreme Court and the circuit and district courts shall have power to issue writs of habeas corpus: * 11Harlan, J.,. Robb v. Connolly, 111 U. S. 624-639, 28 L. ed. 542- 547, 4 Sup. Ct. Rep. 544, 1883. 1Under this provision are cited the acts of Sept. 24, 1789; April 10, 1869; March 2, 1833, Feb. 5, 1867; Aug. 29, 1842, and the following cases: United States v. Hamilton, 3 Dall. 17, 1 L. ed. 490, 1797; Ex parte Burford, 3 Cranch, 448, 2 L. ed. 495, 1805; Ex parte Bollman, 4 Cranch, 75, 2 L. ed. 554, 1808; Ex parte Wilson, 6 Cranch, 52, 3 L. ed. 149, 1810; Ex parte Kearney, 7 Wheat. 38, 5 L. ed. 391, 1823; Ex parte Watkins, 3 Pet. 193, 7 L. ed. 650, 1830; Ex parte Watkins, 7 Pet. 568, 8 L. ed. 786, 1833; Ex parte Milburn, 9 Pet. 704, 9 L. ed. 280, 1834; Holmes v. Jennison, 14 Pet. 540, 10 L. ed. 579, 1840; Ex parte Barry, 2 How. 65, 11 L. ed. 181, 1844; Ex parte Dorr, 3 How. 103, 11 L. ed. 514, 1845; Barry v. Mer- cein, 5 How. 108, 12 L. ed. 70, 1847; Re Metzger, 5 How. 176, 12 L. ed. 104, 1847; Re Kaine, 14 How. 103, 14 L. ed. 345, 1852; Ex parte Wells, 18 How. 307, 15 L. ed. 421, 1855; Ex parte Milligan, 4 Wall, 2, 18 L. ed. 281, 1866; Ex parte McCardle, 6 Wall. 318, 18 L. ed. 816, 1867; Ex parte McCardle, 7 Wall. 506, 19 L. ed. 264, 1868; Ex parte Yerger, 8 Wall. 85, 19 L. ed. 332, 1868; Ex parte Lange, 18 Wall. 163, 21 L. ed. 872, 1873; United States v. Wil- liamson, 12 Phila. Leg. Int. 199, 3 Am. L. Reg. 729, Fed. Cas. No. 16,725, 1855; Ex parte Sifford, 5 Am. L. Reg. 659, Fed. Cas. No. 12848, 1857; Ex parte Everts, 1 Bond, 197, 7 Am. L. Reg. 79, Fed. Cas. No. 4581; Re Vermaitre, 9 N. Y. Leg. Obs. 137, 13 Am, L. J. N. S. 608, Fed. Cas. No. 16,915, 1850; Ex parte McCann, 5 Am. L. Reg. 158, Fed. Cas. No. 8679; Re Henrich, 5 Blatchf. 414, Fed. Cas. No. 6369, 1867; Fisk v. Union P. R. Co. 10 Blatchf. 518, Fed. Cas. No. 4,830, 1873; Re McDonnell, 11 Blatchf. 79, Fed. Cas. No. 8771, 1873; Re Stupp, 11 Blatchf. 124, Fed. Cas. No. 13562, 1873; Re Stupp, 12 Blatchf. 501, Fed. Cas. No. 13,563, 1875; Re Thomas, 12 Blatchf. 370, Fed. Cas. No. 13887, 1874; Re De Giacomo, 12 Blatchf. 391, Fed. Cas. No. 3,747, 1874; Meade’s Case, 1 Brock. 324, Fed. Cas. No. 9,372, 1819; Ex parte Pleasants, 4 Cranch, C. C. 314, Fed. Cas. No. 11225, 1874; Bennett v. Bennett, Deady, 299, Fed. Cas. No. 1318, 1867; United States v. French, 1 Gall. 1, Fed. Cas. No. 15165, 1814; Ex parte Keeler, Hempst. 306, Fed. Cas. No. 7637, 1845; Ex parte Turner, 1 Abb. (U. S.) 84, 6 Int. Rev. Rec. 147, Fed. Cas. No. 14247, 1867; Ex parte Cheeney, 5 Law. Rep. 19, Fed. Cas, No. 2,636, 1842; Ex parte Des Rochers, 1 McAll. 68, Fed. Cas. No. 3,824, 1855; Ex parte Smith, 3 Mc- Lean, 121, Fed. Cas. No. 12968, 1842; Ex parte Robinson, 6 McLean, 355, Fed. Cas. No. 11,935, 1855; Norris v. Newton, 5 McLean, 92, Fed. Cas. No. § 309] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 387 (752) “The several justices and judges of the said courts within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty.? (753) “The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the Constitution or of a law or treaty of the United States; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations, or unless it is necessary to bring the prisoner into court to testify.” ® 10307, 1850; United States v. Rector, 5 McLean, 174, Fed. Cas. No. 16132, 1850; Re Bird, 2 Sawy. 33, Fed. Cas. No. 1428, 1871; Re Bogart, 2 Sawy. 396, Fed. Cas. No. 1596, 1873; Ex parte Jenkins, 2 Wall. Jr. 521, Fed. Cas. No. 7259, 1853; United States v. Anderson, Cooke (Tenn.) 143, 1812. 2Under this provision are cited the acts of Sept. 24, 1789; April 10, 1869; March 2, 1833; Feb. 5, 1867; Aug. 29, 1842. 8 Under this provision are cited the acts of Sept. 24, 1789; March 2, 1833; Feb. 5, 1867; Aug. 29, 1842, and the following cases: Ex parte Dorr, 3 How. 103, 11 L. ed. 514, 1845; Ex parte Barnes, 1 Sprague, 133, Fed. Cas. No. 1010, 1855; Ex parte Bridges, 2 Woods, 428, Fed. Cas. No. 1862, 1875. See U. S. Rev. Stat. 1878, 763, 3 Fed. Stat. Anno. 175, U. 8. Comp. Stat. 1901, p. 594, and see Wharton, Crim. Pl. & Pr. §§ 978 et seq. By the Act of March 27, 1868, the appeal to the Supreme Court of the United States was restricted. Under the act of 1867, a person held under arrest by order of a state tribunal, in violation of any law of the United States, may be released by a Federal court. Ex parte Sey- mour, 1 Ben. 348, Fed. Cas. No. 12684, 1866. See also Ex parte Rob- inson, 6 McLean, 355, Fed. Cas. No. 11935, 1855; Ex parte Jenkins, 2 Wall. Jr. 521, Fed. Cas. No. 7259, 1853; Ex parte Des Rochers, 1 Mc- All. 68, Fed. Cas. No. 3824, 1855. The act of March 27, 1868, tak- ing away an appeal to the Supreme Court of the United States, has been held to apply only to proceedings under the act of February 5, 1867. See U. S. Rev. Stat. 1878, § 763, 3 Fed. Stat. Anno, 175, U. S. Comp. Stat. 1901, p. 594. The prior appellate jurisdiction in habeas corpus remains. Ex parte McCardle, 7 Wall. 506, 19 L. ed. 264, 1868. And hence the Supreme Court of the United States has appellate jurisdiction, on habeas corpus, to re- leive from unlawful imprisonment. one committed for trial by a mili- tary tribunal, and remanded, after a 388 CRIMINAL LAW. [§ 309 The courts of the United States have, it is ruled, not merely jurisdiction to inquire, on habeas corpus, into the legality of all commitments under Federal process, civil or military; * but may issue the writ to discharge a Federal officer arrested on state process, for his conduct in executing a Federal writ.* The delicate questions arising in the exercise of this branch of jurisdiction are more fully considered in another volume.® The writ, however, will be refused when the object is to review commitments under state penal process conflicting with no Federal law.’ hearing, by a district court. Ex parte Yerger, 8 Wall. 85, 19 L. ed. $32, 1869. Restoration of power on appeal— Ach March 3, 1885.—The jurisdic- tion of the Supreme Court on appeal, taken away by the act of March 27, 1868, was finally restored by the act of March 8, 1885, 23 Stat. at L. 437, chap. 353, U. 8S. Comp. Stat. 1901, p. 595. But under this act the appeal lies only from the final de- cision of the circuit court, and not from the decision of a circuit judge sitting as a judge, and not as a court. Carper: v. Fitzgerald, 121 U. S. 87, 30 L. ed. 882, 7 Sup. Ct. Rep. 825, 1866. Habeas corpus from naval tri- bunal—The Supreme Court does not have appellate jurisdiction in habeas corpus cases, over a naval court- martial, nor over offenses which it has power to try. Wales v. Whit- ney, 114 U. S. 564, 29 L. ed. 277, 5 Sup. Ct. Rep. 1050, 1884. 4Ex parte Milligan, 4 Wall. 2, 18 L. ed. 281, 1866; Meade’s Case, 1 Brock. 324, Fed. Cas. No. 9372, 1819; Ex parte Keeler, Hempst. 306, Ted. Cas. No. 7637, 1843. 5 Ix parte Jenkins, 2 Wall. Jr. 521, Fed. Cas. No. 7259, 1853; Ex parte Robinson, 6 McLean, 355, Fed. Cas. No. 11935, 1855; Ex parte Sifford, 5 Am. L. Reg. 659, Fed. Cas. No. 12848, 1857; Re Farrand, 1 Abb. U. S. 140, Fed. Cas. No. 4,678, 1867. See Wharton, Crim. Pl. & Pr. § 981. 6 Wharton, Crim. PI. & Pr. §§ 981, 996 b. 7 Ex parte Dorr, 3 How. 103, 11 L. And the Federal courts, on habeas corpus, ed. 314, 1845; Norris v. Newton, 5 McLean, 92, Fed. Cas. No. 10307, 1850; United States v. Rector, 5 McLean, 174, Fed. Cas. No. 16132, 1850. Federal courts will not interfere by habeas corpus because persons of the negro race were excluded from the grand jury indicting. Re Wood, 140 U. S. 278, 35 L. ed. 505, 11 Sup. Ct. Rep. 738, 1891. : Habeas corpus in Fedetal court— Conviction in state court.—In habeas corpus to release persons convicted of crime in state courts, the Federal courts have no power to inquire whether the evidence was sufficient to support verdict and judgment. (Re Jordan, 49 Fed. 238, 1892), or into regularity of gubernatorial election contest before state legisla- ture (Ex parte Powers, 129 Fed. 985, 989, 1904). Nor will writ be entertained where writ of error available. Re Lincoln, 202 U. S. 178, 50 L. ed. 984, 26 Sup. Ct. Rep. 602, 1906. See Tinsley v. Anderson, 171 U. 8. 101, 43 L. ed. 91, 18 Sup. Ct. Rep. 805, 1898. Nor will state decisions upon con- stitutionality of enactment of Penal Code be inquired into. Re Duncan, 189 U. S. 449, 35 L. ed. 219, 11 Sup. Ct. Rep. 578, 1891. Nor will constitutionality of stat- ute be inquired into when question has not been presented to state courts. Davis v. Burke, 179 U. S. 399, 45 L. ed. 249, 21 Sup. Ct. Rep. 210, 1900; Minnesota v. Brundage, 180 U. S. 499, 45 L. ed. 639, 21 Sup. Ct. Rep. 455, 1901. But the writ will issue when the § 310] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 389 will not inquire into the validity of convictions and sentences of state courts acting de facto, though not de jure.* V. Coyrriict anp Concurrence or Jurispiction.? 1, Introductory. § 310. Crimes and offenses committed outside of the state. The courts of one state will not take cognizance of, and give extraterritorial effect to, the criminal laws of another state, notwithstanding the fact that contracts entered into in petition alleges that a person has been deprived of his liberty without due process of law. Re Monroe, 46 Fed. 52, 1891. As to power of Federal courts to issue writ of habeas corpus, and in what cases, see notes to United States v. Hamilton, 3 Dall. 17, 1 L. ed. 490, 1795; Tinsley v. Anderson, 171 U. 8. 101, 43 L. ed. 92, 18 Sup. Ct. Rep. 805; notes in 4 L.R.A. 236; 10 L-R.A. 617; and 39 L.R.A. 450. —As to what questions may be considered, see note to Re Carll, 27 L. ed. 288. 8 Chase, Ch. J., giving unanimous judgment of Supreme Court of the United States, Richmond, April, 1869; Re Griffin, 25 Tex. Supp. 623, 1869. Nor because the prosecuting attor- ney was only a de facto officer. Re Humason, 46 Fed. 388, 1891. See Wharton, Crim. Pl. & Pr. §§ 981, 993, 996, on this topic, show- ing (1) that the Federal courts will discharge on all imprisonments un- der a state law conflicting with the Federal Constitution; (2) that on a habeas corpus the convictions even of a de facto court will not be re- viewed; and (3) that state as well as Federal courts can review arrests on extradition process. See also United States ex rel. Bull v. McClay, Deady, J. 23 Int. Rev. Rec. 80, 4 Cent. L. J. 255, 15 Alb. L. J. 257, 24 Pittsb. L. J. 140, Fed. Cas. No. 15,660, 1878, citing United States ex rel Roberts v. Jailer, 2 Abb. (U. 8.) 265, Fed. Cas. No. 15,- 468, 1869; Re Neill, 8 Blatchf. 156, Fed. Cas. No. 10,089, 1871; Ex parte Robinson, 1 Bond, 39, Fed. Cas. No. 11,934, 1856; Ex parte Smith, 3 Mc- Lean, 121, Fed. Cas. No 12,968, 1842; United States v. Rector, 5 McLean, 174, Fed. Cas. No. 16,132, 1850; Ex parte Jenkins, 2 Wall. Jr. 521, Fed. Cas. No. 7,259, 1853. 1As to conflict of criminal laws, see articles by Francis Wharton, 1 Crim. L. Mag. 689-716; 6 Crim. L. Mag. 155-190. 2[Ala.] Green v. State, 68 Ala. 539, 1880. [Ind.] Cruthers v. State, 161 Ind. 139, 67 N. E 930, 1903. [Ky.] Hylton v. Com. 29 Ky. L. Rep. 64, 91 S. W. 696, 1906. [Mich.] People v. Tyler, 7 Mich 161, 74 Am. Dec. 703, 1859. [Mo.] State v. Schaeffer, 89 Mo. 271, 1 S. W. 293, 6 Am. Crim. Rep. 259, 1886. [N. C.] State v. Hall, 114 N. C. 909, 28 L.R.A. 59, 41 Am. St. Rep. 822, 19 S. E. 602, 1894. [Va.] Jackson v. Rose, 2 Va. Cas. 34, 1815; Chesa- peake & O. R Co. v. American Exch. Bank, 92 Va. 495, 44 LRA. 449, 23 S. E. 935, 1896. Thus, a resident of Missouri, turn- ing cattle at large and allowing them to stray across the border into the state of Arkansas, is not guilty of an offense punishable in the state of Arkansas. Beattie v. State, 73 Ark. 428, 84 S. W. 477, 1904. Bunco steering, denounced by state statute; such statute has no extra- territorial force, and the defense therein defined cannot be committed partly in and partly out of the state. Cruthers v. State, 181 Ind. 139, 67 N. E. 930, 1903. 390 CRIMINAL LAW. [g 310 a foreign country will be enforced according to the lex loci; * and, as a general rule, a person cannot be punished for a crime committed in another state, although some act consti- tuting a part of such consummated crime was committed within the state.* To give the courts of a state jurisdiction to try and punish an act as an offense or crime, it must have been done or committed within the limits of the state.> Hence, an act of bigamy committed by a man in marrying a woman in another state, while having another wife living from whom he is not divorced, cannot properly be prosecuted in any place except in the state in which the bigamous marriage took place.® 3 Jackson v. Rose, 2 Va. Cas. 34, 1815. 4State v. Gritzner, 134 Mo. 512, 36 S. W. 39, 1896. See also infra, §§ 338-340. Conspiracy with overt act in the state of New York, to defraud a person residing in a foreign coun- try; when one, for the purpose of carrying out the scheme, sends cable- grams making false and fraudulent representations, the other party, ab- sent at the time, may be prosecuted for the conspiracy, though the party is defrauded in a foreign country. People v. Murray, 95 N. Y. Supp. 107, 1905. 5 Except treason committed abroad, or criminal acts of the crew or passengers of a ship in a foreign port, endangering the pacific relation with other powers. People v. Tyler, 7 Mich. 161, 74 Am. Dec. 703, 1859; State v. Shaeffer, 89 Mo. 271, 1S. W. 293, 6 Am. Crim. Rep. 259, 1886. Under Virginia Code of 1792, chap. 136, § 7, providing that all offenses, with the exception of piracy, etc., committed beyond the limits of the state, shall be indictable and punish- able in the general court of the state, a citizen of Virginia committing larceny in the District of Columbia may be tried and punished in the general court of Virginia. Com. v. Gaines, 2 Va. Cas. 172, 1819. 6 Johnson v. Com. 86 Ky. 122, 9 Am. St. Rep. 269, 5 S. W. 365, 1887; People v. Mosher, 2 Park. Crim. Rep. 195, 1855. See notes in 93 Am. Dec. 257, and 9 Am. St. Rep. 269. George D. Collins case, at San Francisco, was a peculiar and flag- rant abuse of criminal process, and an unwarranted assumption of crim- inal jurisdiction. Collins, while hav- ing a wife living in San Francisco from whom he was not divorced, went to Chicago, Illinois, and there married another woman, with whom he returned. to San Francisco and there lived as man and wife. He was thereafter indicted in the coun- ty of San Francisco for the crime committed wholly within Cook coun- ty, Illinois. The indictment on its face showed that the overt act was committed, and the crime wholly consummated, in Cook county, Ill- inois. Upon its face the indictment should have been dismissed by the trial court, of its own motion, for want of jurisdiction to try the of- fense and declare the punishment therefor. Under statutory provisions provid- ing that where a man having a wife living from whom he is not divorced shall marry another woman, the co- habiting with the second woman in the state shall constitute the of- fense of bigamy, the man will be subject to prosecution and punish- ment in any county where the last act takes place, regardless of the place of the overt act of marriage. See State v. Hughes, 58 Iowa, 165, 11 N. W. 706, 1882; State v. Fitz- pea 75 Mo. 571, 13 S. W. 827, 1882. § 310] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 391 In the absence of statutory provisions, bringing into the state property stolen in another state does not give the courts of the former state jurisdiction to try and punish the larceny; and a statute which makes the bringing into the state of prop- erty stolen in another state larceny in any county where it may be found does not apply to property stolen in another country, e. g., Canada.* The offense of receiving stolen prop- erty knowing it to have been stolen is punishable at the place where received, no matter where stolen.® But the legislature has power to make a crime committed partly within the state and partly without punishable under the laws of the state.” 7 People v. Schenck, 2 Johns. 479, 1807; State v. Buchanan, 130 N. C. 660, 41 S. E. 107, 1902. 8 People v. Black, 122 Cal. 73, 54 Pac. 385, 1898. 9State v. Suppe, 60 Kan. 566, 57 Pac. 106, 1899; Com. v. Andrews, 2 Mass. 14, 3 Am. Dec. 17, 1806; Com. v. Uprickard, 3 Gray, 438, 63 Am. Dec. 762, 1855; Com. v. White, 123 Mass. 433, 25 Am. Rep. 116, 1877. 10 See [Cal.] People v. Botkin, 132 Cal. 231, 84 Am. St. Rep. 39, 64 Pac. 286, 1901. [Fla.] Davis v. State, 44 Fla. 32, 82 So. 322, 1902. [Ga.] Fox v. Davis, 55 Ga. 298, 1875. [Ky.] Jackson v. Com. 100 Ky. 239, 66 Am. St. Rep. 330, 38 S. W. 1091, 1897. [La.] State v. Maloney, 115 La. 498, 39 So. 539, 1905. [Mass.] Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89, 1869. [Mo.] State v. Schaeffer, 89 Mo. 271, 1 S. W. 293, 6 Am. Crim. Rep. 259, 1886; State v. Garrison, 147 Mo. 548, 49 S. W. 508, 1899. [Nev.] State v. Hamil- ton, 18 Nev. 386, 1878. [N. C.] State v. Blackley, 138 N. C. 620, 50 S. E. 310, 1905. [Okla.] Moran v. Territory, 14 Okla. 544, 78 Pac. 111, 1904. [Pa.] Com. v. Schmunk, 22 Pa. Super. Ct. 348, 11 Pa. Dist. R. 116, 18 Montg. Co. L. Rep. 49, 1903, affirmed in 207 Pa. 544, 99 Am. St. Rep. 801, 56 Atl. 1088, 1904. [Vt.] State v. Marshall, 77 Vt. 262, 59 Atl. 916, 1905. [Wis.] Bates v. State, 124 Wis. 612, 103 N. W. 251, 4 A. & E. Ann. Cas. 365, 1905. County in which murder is com- mitted has jurisdiction to punish the offender, although the person murdered dies in another state. Davis v. State, 44 Fla. 32, 32 So. 822, 1902; State v. Garrison, 147 Mo. 548, 49 S. W. 508, 1899. —Attempt to murder by poison in one state, and thereafter remov- ing the supposedly dead body to another state, and beheading it, is punishable in the latter state, al- though accused did not suppose at the time of the beheading that the person was still alive. Jackson v. Com. 100 Ky. 239, 66 Am. St. Rep. 336, 38 S. W. 1091, 1897. —Poisoned candy sent through the mails by a person in California to a person in a foreign state, thereby causing the death of the latter; the court of California has jurisdic- tion to try and punish the crime. People v. Botkin, 9 Cal. App. 244, 98 Pac. 861, 1907, affirmed in 132 Cal. 231, 84 Am. St. Rep. 39, 64 Pac. 286, 1901. —Wound inflicted in Oklahoma, and death occurring in Indian ter- ritory; Oklahoma courts have juris- diction to try and punish the offense. Moran v. Territory, 14 Okla. 544, 78 Pae. 111, 1904. —Injuries being inflicted upon per- son on a foreign vessel upon the high seas, who dies in Massachusetts from the effect of such injuries, pros- ecution for manslaughter may be. brought in that state. Com. v. Mac- loon, 101 Mass. 1, 100 Am. Dec. 89, 1869. Embezzlement.—A party in Geor- gia who, agreeing to take certain 392 CRIMINAL LAW. [§ 312 § 311. Water boundary. In the case of boundary by a body of navigable water, the common-law rule as to jurisdiction, as modified by statute or treaty, prevails.’ 2. Offenses at sea. § 312. Offenses on shipboard cognizable in country of flag. property to North Carolina, and dis- pose of it there, and, after deduct- ing expenses, to account for the pro- ceeds less a given per cent of the net profits, converted the proceeds in North Carolina is subject to prosecution for embezzlement in the latter state. State v. Blackley, 138 N. C. 620, 50 S. E. 310, 1905. Falsely personating another in correspondence addressed from New York to a person residing in Ver- mont, and thereafter going to Ver- mont and securing a check payable to the party personated; the crime of false pretense is committed in the state of Vermont. State v. Marshall, 77 Vt. 262, 59 Atl. 916, 1905. False pretense in Wisconsin, through which a draft was obtained, which was paid in Iowa; the crime of obtaining money under false pre- tense is committed in Iowa. Bates v. State, 124 Wis. 612, 103 N. W. 251, 4 A. & E. Ann. Cas. 365, 1905. Obtaining money or goods under false pretenses by drawing a draft in Missouri, on the drawee in New York, the money being collected through the agency of other banks in New York; the-crime was com- mitted in New York, and the courts of Missouri have no jurisdiction. State v. Schaeffer, 89 Mo. 271, 1 S. W. 293, 6 Am. Crim. Rep. 259, 1886. The Georgia statute; a person in Georgia ordering goods from a per- son in Kentucky, and directing him to send them to a third person in Alabama, agreeing to consider the goods as consigned to him, to be responsible therefor as _ consignee, cannot be prosecuted for larceny af- ter a trust, in the state of Georgia. Fox v. Davis, 55 Ga, 298, 1875. As a rule, a ship is viewed as part of the country whose —False statement mailed from one state to a place in another state, and acted on at the latter place; the offense is consummated in the lat- ter state and its courts have juris- diction. State v. Hamilton, 13 Nev. 386, 1878; Com. v. Schmunk, 22 Pa. Super. Ct. 348, 11 Pa. Dist. R. 116, 18 Montg. Co. L. Rep. 49, 1903, af- firmed in 207 Pa. 544, 99 Am, St. Rep. 801, 56 Atl. 1088, 1904. Wager made under guise of tele- gram to town in another state, in a pool room being operated in this state is a subterfuge to evade a statute preventing the conducting of such pool room, and has no legal effect upon the venue of the offense. State v. Maloney, 115 La. 498, 39 So. 539, 1905. 1 Selling intoxicating liquors with- out a license on boat anchored in the Ohio river beyond low-water mark, on the Indiana side of the river; the Indiana court has juris- diction to try and punish the of- fense, under Rev. Stats. 1881, § 1578. Welsh v. State, 126 Ind. 71, 9 L.R.A. 664, 25 N. E. 883, 1890. West Virginia courts have a jur- isdiction coextensive with the wa- ters of the Ohio river, while flow- ing within its banks. State v. Plants, 25 W. Va. 119, 52 Am. Rep. 211, 1884. Under treaty between United States and Great Britain of 1783, dividing and appropriating the Great Lakes and connecting waters, the courts of neither country have juris- diction of the trial of offense com- mitted within the limits of the lakes as apportioned to the other. People v. Tyler, 7 Mich. 161, 74 Am. Dec. 703, 1859. § 312] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 393 flag she bears;* and in ecnformity with this principle, all offenses committed on shipboard are regarded as cognizable by the sovereign to whom the ship belongs, no matter to what nationality belongs the offender.? In England, it is true, all rivers in the country, until they flow past the furthest point of land next the sea, are held within the jurisdiction of the courts of common law, and not of the court of admiralty; * and where the sea flows in between two points of land in the country, a straight imaginary line being drawn from one point to the other, the common law is held to have jurisdiction of all offenses committed within that line;* the court of admir- 1 Wharton, Confl. L. § 978. Vessel upon the high seas is a part of the territory of the nation to which the flag belongs, for pur- pose of jurisdiction over offenses committed during the course of its voyage. The ship and all on board are subject to the municipal laws of such country, in the absence of stipulations to the contrary. Peo- ple v. Tyler, 7 Mich. 161, 74 Am. Dec. 703, 1859. Federal statute making the crimes of robbery, etc., committed within tide waters, piracy, and punishable within the Federal courts, has no operation where the crime is com- mitted within the territorial juris- diction of a state court; hence a robbery committed on a ferryboat on an inland river in which the tide flows is not cognizable in the Fed- eral courts. Ex parte Ballinger, 5 Hughes, 387, 88 Fed. 781, 1882. 2Reg. v Lopez, Dears. & B. C. C. 525, 1858, 7 Cox, C. C. 481, 27 L. J. Mag. Cas. N. S. 48, 4 Jur. N. S. 98, 6 Week Rep. 227. Offenses on vessel—Jurisdiction.— In Reg. v. Serva, 1 Den. C. C. 104, 2 Car. & K. 58, it was held, ac- cording to the summary of Sir. J. F. Stephen, “that the criminal law of England does not apply to for- eigners on board a ship unlawfully in the custody of an English ship of war.” On the other hand, “the lia- bility,” he adds, “to the English criminal law, of foreigners on board English merchant vessels, has been clearly established, even if they are on board without their own consent, and even if a foreign court has con- current jurisdiction over them. This was decided by three cases: Reg. v. Lopez, 1 Dears. & B. C. C. 525, 7 Cox, C. C. 431, 27 L. J. Mag. Cas. N. 8. 48, 4 Jur. N.S. 98, 6 Week. Rep. 227, decided in 1858, and Reg v. Anderson, L. R. 1 C. C. 161, 38 L. J. Mag. Cas. N. §. 12, 19 L. T N. 8. 400, 17 Week. Rep. 208, 11 Cox, C. C. 198, decided in 1868” 2 Stephen, History Crim. Law, 3. | Compare: Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89, 1869; Peo- ple v. Tyler, 7 Mich. 161, 74 Am. Dec. 703, 1859. Foreigners enlisting in the United States navy are subject to United States consular jurisdiction for of- fenses committed on board United States ships. Re Ross, 140 U. 8. 453, 35 L. ed. 581, 11 Sup. Ct. Rep. 897, 1891. 3See 1 Co. 175; 3 Co. Inst. 113; Vilthasen v Ormsley, 3 T. R. 315; 1 Hawk. P. C. chap. ¢. 37, § 11. 4 As to United States, See 1 Kent, Com. 30; Com. v. Gaines, 2 Va. Cas. 172, 1819. Port part of state—Jurisdiction. — A state, of which a port is a part, has the power to punish crimes com- mitted by one foreigner upon an- other foreigner on board of a foreign vessel in the harbor Wildenhus’s Case (Mali v. Keeper of Common Jail), 120 U. S. 1, 30 L. ed. 565, 7 Sup. Ct. Rep. 385, 1887. 394 CRIMINAL LAW. [§ 312 alty of all offenses without it. But of crimes not merely on the high seas, but on creeks, harbors, ports, ete., in foreign countries, the court of admiralty is held to have undoubted jurisdiction, and such offenses may consequently be piracies. Thus, where, on an indictment for larceny out of a vessel lying in a river at Wampu, in China, the prosecutor gave no evi- dence as to the tide flowing or otherwise where the vessel lay, the judges held that the admiralty had jurisdiction, it being a place where great ships go.® As to offenses committed on the coast, the admiralty is ruled to have exclusive jurisdiction of offenses committed beyond low-water mark; and between that and the high-water mark, the admiralty jurisdiction is asserted over all offenses done upon the water when the tide is in; it being admitted that courts of common law have jurisdiction over offenses committed upon the strand when the tide is out. All the other parts of the high sea are indisputably within the jurisdiction of the admiralty.” Since the passage of the merchants’ shipping act, in 1854, Brit- ish jurisdiction is pushed so far as to embrace offenses com- mitted by British seaman abroad, in port as well as on ship. Since this act, also, it has been held that the central criminal court has jurisdiction of offenses, primarily cognizable in admiralty, committed on British ships in foreign rivers, or at sea, though the offenders be foreigners.* 5 But see Rex v. Bruce, Russ. & stolen on board of a British ship in R. C. C. 242, 2 Leach, C. L. 1093, the port of Rotterdam. 1817. Loss of life by collision on high 6 Rex v. Allen, 1 Moody, C. C. 494, 7 Car. & P. 664, 1835. 7 Wharton, Precedents, form 1067. 8 Reg. v. Anderson, L. R. 1 C. C. 161, 11 Cox, C. C. 198, 1869, 38 L. J. Mag. Cas. N.S. 12,19 L. T. N.S. 400, 17 Week. Rep. 208, 8 Eng. notes to Rul. Cas. 1. See Lewis, Foreign Jur. p. 25. Receivers of goods stolen in for- eign port—Jurisdiction—lIn Reg. v. Carr, 47 L. T. N. S. 450, 52 L. J. Mag. Cas. N. S. 12, L. R. 10 Q. B. Div. 76, 31 Week. Rep. 121, 4 Asp. Mar. L. Cas, 604, 15 Cox, C. C. 129, 47 J. P. 38, 1881, jurisdiction was held to exist in the same court over receivers (British subjects) of goods seas — Jurisdiction.— In connection with the text may be noticed the much-discussed case of The Fran- conia, 36 L. T. N. 8. 640, 1877; a case also reported in L. R. 2 Prob. Div. 163, 46 L. J. Prob. N. 8. 33; 25 Week. Rep. 796. In this case the admiralty branch of probate and ad- miralty division had refused a motion to set aside so much of a writ of sum- mons in rem as claimed compensation for the loss sustained by the plain- tiff in consequence of the death of a person of whom she was admin- istratrix, and who, whilst serving on board a British ship, had lost his life through a collision between his vessel and a foreign ship on the high seas, caused by the negligence of § 313] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 395 The same general principles are admitted in German and French jurisprudence.® § 313. Federal courts have jurisdiction of crimes on high seas and out of state jurisdiction. In the United States, by statute,’ the Federal courts have jurisdiction not only of all piracies, revolts, homicides, robberies, and malicious injuries to vessels, and of other crimes, on the high seas, by those on board the foreign ship. On appeal, it was held by James and Bagallay, L. JJ. (approving the de- cision of the court below), that the judge of the admiralty division has jurisdiction to entertain a suit in rem under Lord Campbell’s act. It was, however, ruled by Bramwell and Brett, L. JJ. (disapproving the decision of the court below), that the jurisdiction given by the admi- ralty court act, 1861, § 7, does not include claims under Lord Campbell’s act. The appeal was dismissed. Collision on high seas—Foreigner in foreign ship—Jurisdiction—In Reg. v. Keyn, L. R. 2 Ex. Div. 63; 13 Cox, C. C. 408, 46 L. J. Mag. Cas. N. S. 17, 5 Eng. Rul. Cas. 946, 1876, a@ case growing out of the Franconia disaster, it was ruled in England that the court of criminal appeal has no jurisdiction to try a foreigner who, in a foreign ship, is chargeable with a negligent collision, producing death in the colliding English ship, though the collision was within 3 miles of the English coast. The vote of the court, however, on this point was seven to six: affirming Cockburn, Ch. J., Kelly, C. B., Bramwell, J. A., Lush, J., Pollock, B., Field, J., and Sir R. Phillmore; dissenting, Lord Coleridge, Ch. J., Brett, J., Amphlett, J. A., Grove, Denman, and Lindley, JJ. This case, with the subsequent leg- islation, is discussed by me in 1 Crim. Law Mag. 701 et seq. The points taken by Cockburn, C. J., in which a majority of the judges agreed, were as follows: “The extent of the realm of Eng- land is a question not of internation- al, but of English, law. “There is no evidence that the Sovereigns of this country ever eith- er claimed or exercised any special jurisdiction over a belt of sea ad- jacent to the coast, though there is evidence that the admiral has al- ways claimed jurisdiction over per- sons on board of British ships, where- ever they might be, and that he formerly claimed jurisdiction over all persons and all ships in the four narrow seas. This claim, however, has long since been given up, and no other claim has ever been substituted for it. “Hence there is no evidence that any British court has jurisdiction over a crime committed by a for- eigner on board a foreign ship on the high sea, but within 3 miles of the coast.” 2 Stephen, History Crim. Law, 31. In Keyn’s Case, according to Sir J. F. Stephen (2 History Crim. Law, 10), four of the judges “seem to have been of opinion that a crime com- mitted by an act which extends over more jurisdictions than one in space is committed in the jurisdiction in which it takes effect, whether or not it is also committed in the jurisdic- tion in which it begins to be done. In accordance with this view, Baron Pollock and I lately held that a man who obtained goods from a merchant in Prussia by false pretenses con- tained in a letter sent from Amster- dam, where he lived when he wrote the letter, obtained them in Prussia, and we refused a habeas corpus to prevent his extradition accordingly.” This is in accordance with the ruling in United States v. Davis, 2 Sumn. 482, Fed. Cas. No. 14,932, 1837. 9 Wharton, Confl. L. § 861. 1 Brightly, pp. 207-209; U.S. Rev. Stat. 1878, 5372, 5 Fed. Stat. Anno. 756, U. S. Comp. Stat. 1901, v. 3643. 396 CRIMINAL LAW. [§ 313 all persons, without regard to nationality, but of offenses com- mitted in American ships in foreign ports; “and the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may be first brought.”? And this act gives concurrent jurisdiction to the place of arrest, and that in which the defendant is first brought.® § 314. Sovereign has jurisdiction of sea within cannon shot from shore. 2 Wharton, Confl. L. § 862, citing Ex parte Bollman, 4 Cranch, 75, 2 L. ed. 554, 1807; United States v. Thompson, 1 Sumn. 168, Fed. Cas. No. 16,492, 1836; United States v. MGill, 4 Dall. 426, 1 L. ed. 894, 1 Wash. C. C. 468, Fed Cas. No. 15,- 676, 1806. An offense committed aboard an American vessel on high seas; Fed- eral district court within any dis- trict in which the offender may be arrested has cognizance to try and punish for the offense. United States v. Newth, 149 Fed. 302, 1906. Assault with a dangerous weapon committed on a vessel lying in gov- ernment breakwater, 2 miles from shore, but not so connected as to be inclosed by the shore and consti- tute a haven or harbor, is within the exclusive jurisdiction of the Fed- eral courts. Ex parte O’Hare, 171 Fed. 290, 1909. Criminal offenses committed at a point on the waters of the ocean within a marine league of the coast of New Jersey, are committed with- in the state of New Jersey, and the Federal court of the district of New Jersey has jurisdiction to try and punish the alleged crime. United States v. Newark Meadows Improv Co. 173 Fed. 426, 1909. Vessel in open roadstead.— In this country a vessel lying in an open roadstead of a foreign country is held to be on the high seas. United States v. Furlong, 5 Wheat. 184, 5 L. ed. 64, 1820; United States v. Gordon, 5 Blatchf. 18, Fed. Cas No. 15,231, 1861. Vessel in harbor.—And so, also, What is the jurisdiction of a state over of a vessel lying in a harbor, fastened to the shore by a cable, and com- municating with the shore by boats, and not within any inclosed dock, or at any pier or wharf. United States v. Seagrist, 4 Blatchf. 120, Fed. Cas. No. 16,245, 1860. With us it is not necessary, to give the Federal courts jurisdiction, that the vessel should have belonged to citizens of the United States; it is enough if she had no national character, but was held by pirates, or persons not lawfully sailing any foreign flag. And the offense is. equally cognizable by the United States courts, if committed on board of a foreign vessel by a citizen of the United States, or by a foreigner on board of a United States vessel; or by a citizen or foreigner on board of a piratical vessel. Ex parte Bollman, 4 Cranch, 75, 2 L. ed. 654, 1807; United States v. Furlong, 5 Wheat. 184, 5 L. ed. 64, 1820; Unit- ed States v. Kessler, Baldw. 15, Fed. Cas. No. 15,528, 1828. Otherwise with acts of piracy com- mitted by citizens of a foreign coun- try in foreign vessels. Tbid.; United States v. Palmer, 3 Wheat. 610, 4 L, ed. 471, 477, at p. 632, 1818. State of which port is part has the power to punish crimes com- mitted by one foreigner upon an- other foreigner, on board of a foreign. vessel in the harbor; Wildenhus’s Case (Mali v. Keeper of Common Tail) 120 U.S. 1, 30 L. ed. 565, 7 Sup. Ct Rep. 385, 1887. 8United States v. Baker, 5. Blatchf. 6, Fed, Cas. No. 14,501, 1861. § 315] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 397 the ocean? To this question, which is of importance in view of the distinction noticed in the last section, we may reply that a sovereign has jurisdiction of the sea bounding his coast to the distance of a cannon shot from low-water mark.’ § 315. Territory used by the United States. The gen- eral rule is that any crime committed within the boundaries of the state is not cognizable in the Federal courts, unless there has been such cession by the state to the United States of the territory where the act occurred as to make the crime committed in a “place or district of country under the exclusive juris- diction of the United States.” Where the Federal govern- ment cedes land to a state, reserving specified portions thereof for military purposes and other governmental purposes, the state courts have no jurisdiction to try and punish offenses committed within such reservations;? and the same is true where property is ceded by the state,* or purchased by the 1 Lawrence’s Wheaton, Interna- tional Law, 321, 715, note. See Com. vy. Peters, 12 Met. 387, 1847 (cited supra, 301); Manley v People, 7 N. Y. 295, 1852; Wildenhus’s Case (Mali v. Keeper of Common Jail) 120 U. 8. 1, 30 L. ed. 565, 7 Sup. Ct. Rep. 385, 1887. 1United States v. Lewis, 111 Fed. 630, 1901; United States v. Battle, 154 Fed. 540, 1907. State has power to cede jurisdic- tion over land acquired by the Fed- eral government for the erection of public buildings, ete., so that Fed- eral courts sitting in any such state have exclusive jurisdiction to try and punish an alleged murder, or other offense, committed on such property. United States v. Battle, 154 Fed. 540, 1907. 2 State v. Tully, 31 Mont. 365, 78 Pac. 760, 3 A. & E. Ann. Cas. 824, 1904. Territorial offense committed on the ground reserved for govern- mental use and controlled by Fed- eral government is triable in the ter- ritorial courts, where the organic act provides that the territorial court skall have jurisdiction to try and condemn for violation of both Fed- eral and state laws committed with- in such territory. Re Terrill, 75 C. C. A. 418, 144 Fed. 616, 1896. 8 Land ceded to United States for governmental purpose; exclusive jur- isdiction is vested in the Federal courts, and the state courts are de- prived of jurisdiction to try and punish offenses committed thereon. See [Fed.] United States v. Cornell, 3 Mason, 91, Fed. Cas. No. 14,868, 1820; United States v. Tucker, 122 Fed. 518, 1908; United States v. Tulley, 140 Fed. 899, 1905; United States v. Battle, 154 Fed. 540, 1908, affirmed in 209 U. S. 36, 52 L. ed. 607, 28 Sup. Ct. Rep. 422, 1908. [Miss.] State v. Seymour, 78 Miss. 134, 28 So. 799, 1900. [N. J.] State v. Morris, 76 N. J. L. 222, 68 Atl 1103, 1908. [Nev.] State ex rel. Jones v. Mack, 23 Nev. 359, 62 Am. St. Rep. 811, 47 Pac. 763, 1897. {[N. Y.] People v. Marra, 4 N. Y. Crim. Rep. 304, 1886. Murder on board of government naval vessel lying at dock within a tract, the jurisdiction over which has been ceded by the state to the Unit- ed States for purpose of a navy yard, ete.; the Federal courts have no jurisdiction, although the land may have been purchased by the United States. United States v. Carter, 84 Fed. 622, 1897. 398 CRIMINAL LAW. [§ 315 United States with the consent of the state legislature,* and jurisdiction over the same transferred to the Federal govern- ment.® Hot Springs Mountain reservation, act conferring jurisdiction upon Unit- ed States commissioners over, con- templates the creation of a new of- fice of commissioner, with special jurisdiction over offenses committed within that reservation, but, in the absence of provisions for the appoint- ment of such commissioner, is in- effective, and the jurisdiction at- tempted to be conferred upon him cannot be exercised by any United States commissioner within that dis- trict or elsewhere. Rider v. United States, 79 C. C. A. 112, 149 Fed. 164, 1906. 4Land purchased by the United States government for the erection of forts, with the consent of the leg- islature of the state in which situ- ated, with power to exercise exclu- sive legislation in all cases whatso- ever; the Federal courts have juris- diction to try and punish a crime committed within such territory, not- withstanding the fact that the state reserved the right to execute the criminal and civil processes under state authority in such places. [Fed.] United States v. Cornell, 2 Mason, 91, Fed. Cas. No. 14,868, 1820; United States v. Tucker, 122 Fed. 518, 1903. [N. J.] State v. Morris, 76 N. J. L. 222, 68 Atl. 1103, 1908. [Tex.] Baker v. State, 47 Tex. Crim. Rep. 482, 122 Am. St. Rep. 703, 83 S. W. 1122, 11 A. & E. Ann. Cas. 751, 1904. —Property held by the United States as a military post, but out- side of the garrison wall and fence, is within the exclusive jurisdiction of the Federal courts for the trial and punishment of all crimes and offenses committed thereon, even though such portion beyond the wall or fence is used as a public street. Baker v. State, 47 Tex. Crim. Rep. 482, 122 Am. St. Rep. 708, 88 8. W. 1122, 11 A. & E. Ann. Cas. 751, 1904. To give Federal courts jurisdic- tion to try and punish, such fort or reservation must be established as contemplated by law with the con- sent of the legislature of the state in which situated, or by reservation out of public lands at time of ad- mission; at which time exclusive jur- isdiction over such crimes must have been reserved, by express words or necessary implication, to the Federal courts. United States v. Tulley, 140 Fed. 899, 1905. As to lands not originally pur- chased or reserved for purposes of forts, but thereafter used therefor, above rule does not apply. See Clay v. State, 4 Kan. 49, 1866. Admission of territory as state. — Lands occupied as military post in territory, which, by organic act and subsequent admission into the Union, passed to the new state; Federal courts are without jurisdiction to try and punish offense within such reser- vation after the admission of such new state. United States v. Tulley, 140 Fed. 899, 1905. 5 Jurisdiction remains in state courts unless such purchase was with the consent of the legislature, or the jurisdiction over the same has been otherwise ceded to the United States. United States v. San Francisco Bridge Co. 88 Fed. 891, 1891. Where jurisdiction is ceded to the Federal government, for any crime committed upon the land con- stituting such site, the Federal courts have jurisdiction to try and punish. United States v. Battle, 154 Fed. 540, 1908, affirmed in 209 U. S. 36, 52 L. ed. 670, 28 Sup. Ct. Rep. 422, 1908. Ceding exclusive jurisdiction to the Federal courts, over land pur- chased by United States, “for all purposes except the administration of the criminal laws of this state,” deprives the state courts of jurisdic- tion to try and punish crimes com- mitted on the land thus purchased, and their criminal process runs only for the apprehension of persons vio- lating the criminal law of the state elsewhere within the state. State ex rel. Jones v. Mack, 23 Nev. 359, 62 Am. St. Rep. 811, 47 Pac. 763, 1897. § 316] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE, 399 3. Offenses by subjects abroad. § 316. Subjects may be responsible to their own sov- ereign for offenses abroad. It is generally conceded that subjects should be held responsible to the courts of their country for offenses committed in barbarous or unsettled lands.’ In England, the right to exercise extraterritorial jurisdiction over subjects is assumed to be an essential attribute of sovereignty.’ Mr. Wheaton states the principle very largely. “This” (the territorial) “principle is peculiar to the jurisprudence of Great Britain and the United States, and even in those two countries it has been frequently disregarded by the positive legisla- tion of each, in the enactment of statutes by which offenses committed by a subject or citizen, within the territorial limits of a foreign state, have been made punishable in the courts of that country to which the party owes allegiance, and whose laws he is bound to obey.’” —tLarceny committed in United States postoffice building not triable and punishable by the courts of the state of New York. People v. Marra, 4 N. Y. Crim. Rep. 304, 1886. —Punishment to be inflicted.— Under statute providing that where land has been ceded by a state for Federal purposes, and jurisdiction transferred to the Federal govern- ment, in case of crime committed within such territory, for which crime the Federal statutes do not provide a punishment, the Federal courts will impose punishment in accordance with the laws of the state. United States v. Andem, 158 Fed. 996, 1908. Rental of building for a postoffice by the postmaster; the question of the right to try an offense committed in places ceded to the United States is immaterial. Brooke v. State, 155 Ala, 78, 46 So. 491, 1908. 1See Wharton, Confl. L. § 71. The authorities go beyond this limit. ‘Where an act,” said Judge Vredenburgh (State v. Carter, 27 N. J. L. 501, 1859), in the supreme court of New Jersey, “malum in se, is done in solitudes, upon land where there has not yet been formally ex- tended any supreme human power, it Mr. Wheaton does not here notice may be that any regular government may feel, as it were, a divine com- mission to try and punish. It may, as in cases of crime committed in the solitudes of the ocean, upon and by vessels belonging to no government, pro hac vice, arrogate to itself the prerogative of omnipotence, and hang the pirate of the land as well as of the water.” 2Lewis, Foreign Jur. p. 14, citing acts of 6 & 7 Vict. chap 94. As to bigamy, see infra, §§ 2016- 2028. Extraterritorial jurisdiction—Eng- lish rule.—In 1878 the British gov- ernment went so far as to sustain the execution, on board the ship Beagle, at sea, of a South Sea islander, charged with the mur- der on shore of an _ English- man. See Sat. Rev. Aug. 10, 1878, 169. And see this case discussed by me in 4 Southern L. Rev. N. S. 676, and also infra, § 330, note. The jurisdiction is doubted Roscow, Crim. Ev. pp. 246, 247. See, also, supra, § 310. 8Dana’s Wheaton, International Law, § 1138. Foreigner enlisted in United States Navy is subject to United States criminal laws. See Re Ross, 140 U. in 400 CRIMINAL LAW. [§ 316 the provision of the Federal Constitution which guarantees to each accused party a trial in the state and district where the crime was committed. But it is easy to reconcile his state- ment as above given with this provision, by adopting the view of the Federal Supreme Court, that the Constitution has appli- eation only to offenses committed on the soil of the United States.* § 317. Apportionment of this sovereignty between Fed- eral and state governments. With regard to the particular states of the American Union, complicated constitutional ques- tions may here arise. Is a domiciled citizen of Massachusetts, tor instance, when traveling abroad, responsible, on the gen- eral hypothesis of extraterritorial penal power of sovereigns over subjects abroad, to the United States, or to Massachusetts, or to both? The better opinion is that he is responsible to them penally, when he is abroad, under the same conditions and limitations as he was when he was at home.’ For an infringe- anent of the laws of Massachusetts, he is responsible to Massachusetts; for an infringement of the laws of the United States, to the United States. § 318. United States statutes give jurisdiction over offenses in semi-civilized lands. By the Revised Stat- utes; the ministers and consuls of the United States, in pur- suance of treaties with China, Japan, Siam, Egypt, and Mad- agasear, are “fully empowered to arraign and try, in the manner herein provided, all citizens of the United States charged with offenses against law, committed in such coun- tries.”* By a subsequent section the same jurisdiction is extended to “consuls and commercial agents of the United States ‘S. 453, 25 L. ed. 581, 11 Sup. Ct. Rep. 897, 1891. See The Marie, 49 Fed. 288, 1892; The Welhaven, 55 Fed. 81, 1892; The Kestor, 110 Fed. 432, 443, 1901 The European, 57 ‘C. C. A. 140, 120 Fed. 780, 1903. 4United States v. Dawson, 15 How. 467, 14 L. ed. 775, Fed. Cas. No. 14,938, 1853. 1[Mass.] Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89, 1869. [N. J.] State v. Carter, 27 N. J. L. 501, 1859. [Va.] Com. v Gaines, 2 ‘Va, Cas. 172, 1819. [Wis.] State ex re]. Chandler v. Main, 16 Wis. 399, 1864, Denying state extraterritorial jur- isdiction. See Tyler v. People, 8 Mich. 320, 1860; State v Knight, 3 N.C. (2 "Hayw.) 109, 1815; supra, § 310. As inclining to the same view, see People v. Merrill, 2 Park. Crim. Rep. 590, 1854; Cummins v. State, 12 Tex. App. 121, 1882. For bigamy, see infra, §§ 2016- 2036. 1Ed. of 1878, 4084, U. S. Comp. Stat. 1901, p. 2769, As to Japan, see treaty of 1895. - 28ee Re Stupp, 11 Blatchf. 124, Fed. Cas. No. 13,562, 1873, § 319] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 401 at islands or in countries not inhabited by any civilized people, or recognized by any treaty with the United States.”* This, it will be seen, is a positive claim of the United States govern- ment to exercise extraterritorial jurisdiction over its own citizens in uncivilized countries, independent of any treaty authorization. The jurisdiction, however, is limited to persons owing allegiance to the United States.* A similar jurisdiction is asserted by both German and French jurists over their subjects in barbarous or semi-civilized lands,* and it is now, partly by treaty, partly as a matter of inter- national law, partly because in semi-civilized lands the domestic authorities generally refuse to take cognizance of suits in which foreigners are concerned, a settled practice for civilized consular jurisdiction, in matters both criminal and civil, to be exercised not only in Asia and Africa, but in Turkey.® § 319. —Also over political offenses abroad. The act of January 30, 1790, provides that if any “citizen of the United States, whether he be actually resident or abiding within the United States, or in any foreign country, shall, without the permission or authority of the government of the United States, directly or indirectly commence or carry on any verbal or written correspondence or intercourse with any foreign government, or any officer or agent thereof, with an intent to influence the measures or conduct of any foreign government, or of any officer or agent thereof, in relation to any disputes or controversies with the United States, he shall be guilty of a high misdemeanor, and subjected to a fine not exceeding five thousand dollars, and imprisonment for not less than six months or over three years. This act still remains among the statutes of the United States;? and its continued existence is the strongest of illustrations that the power of Congress to “define 3Rev Stat. 4088, 2 Fed. Stat. C. 439, 9 Moore, P. C C. N.S. 241, Anno, 820, U. S. Comp. Stat. 1901, p. 42 L. J. P. C. N. S. 25, 21 Week. 2770. Rep. 365, the suit was brought origi- #See 11 Ops. Atty. Gen. 474. nally at Shanghai in “Her Majesty’s As to bigamy, see infra, §§ 2016- court for China and Japan.” 2036. 1 Brightly, p. 201; Rev. Stat. 1878, 5 Wharton, Confl. L. § 866; Fo- 5335, U. S§. Comp. Stat. 1901, p. lix, ii. r 294. See Bar, § 138. 3624, See President’s Message of De- 6 See Wharton, Am. Law, §§ 147, cember 3, 1798; Mr. Jefferson to Mr. 171. Madison, January 3, 1799; Randall’s In Hart v. Gumpach, L. R. 4 P. Life of Jefferson, iii. p. 467. Crim. L, Vol. I.—26. 402 CRIMINAL LAW. [§ 319 and punish offenses against the law of nations” is maintained by the government of the United States, to authorize it to punish at home political offenses committed by its citizens abroad. The act of February 25, 1863,? making correspondence with rebels a misdemeanor, declares that “where the offense is com- mitted in a foreign country, the district court of the United States for the district where the offender shall be first arrested shall have jurisdiction thereof.” § 320. Political extraterritorial offenses by subjects are punishable. By the English law, all offenses by subjects against the government are cognizable by English courts, no matter where the defendant may have been resident at the time of the offense,’ and by the jurists of continental Europe this view is accepted as universally authoritative? Nor does it exclude the jurisdiction of the offended state, that a foreign country, within whose bounds the offense was organized, had concurrent jurisdiction of the offense. It is a fundamental principle of international law that each state is primarily authorized to punish offenses against itself. Of course, it can- not invade the territory or the ships of another country in order to arrest the offender.* But the arrest may be made when- ever the offender is found in the territory of the offended sovereign. § 321. Perjury and forgery before consular agents abroad punishable in the home courts. The act of Con- gress of August 18, 1856,’ authorizes secretaries of legation and consular officers to administer oaths and perform notarial duties, and makes perjury or subornation of perjury abroad before such officers punishable “in any district of the United States, in the same manner, in all respects, as if such offense had been committed in the United States.” This act is not 2 Brightly, Fed. Stat ii. 154. As to bigamy,:see infra, §§ 2016- 14 Wendall’s Bl. Com. 305; Reg. 2036. v. Azzopardi, 1 Car. & K. 203, 2 2Bar, p. 530, § 188; Ortolan, No. Moody, ©. C. 289, 1 Cox, C. C. 28, 0. 1843; Reg. v. Anderson, 11 Cox, C. 8 See this discussed in the Koszta C. 198, L. R. 1 C. C. 161, 38 L. J. Case, and Trent Case, in Woolsey Mag. Cas. N. 8S. 12, 19 L. T. N. S. International Law, § 81; Wharton, 400, 17 Week. Rep. 208, 8 Eng. Rul. Am. Law, §§ 189, 146, 239. Cas. 1, 1869. Infra, §§ 321, 330. 1Brightly, 180. See U. S. Rev. See Sir Geo. Cornwall Lewis’s Stat. 1878, 4083-4180, U. S. Comp. work on Foreign Jurisdiction, etc. p. Stat. 1901, pp. 2770-2788, 2 Fed. 20. Stat. Ann. 819-830. oo Co § 323] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 403 confined to persons owing allegiance to the United States, but includes aliens committing the designated offenses. The same act makes penal the forgery abroad of consular papers. And at common law it is argued that a state may punish perjury committed before one of its own commissioners to take testi- mony in a foreign state.” The same view is taken by German and French jurists.® In England, in indictments for administering or taking un- lawful oaths, the venue may be laid in any county in the realm, though the offense was committed abroad.* In indictments for forgery, the venue may be laid, and the offense charged to have been committed in any county where the offender was appre- hended or in custody.® § 322. Homicide by subjects abroad punishable in Eng- land. In England, in indictments for murder or manslaughter, or for being accessory before or after the fact to.murder or manslaughter, the offense being committed by a British subject on land out of the United Kingdom, the venue may by statute be laid in any county appointed by the lord chancellor in the commission issued for the trial of the offender.’ This provision applies to homicides committed by British subjects within the dominions of a foreign sovereign; * but, until after- ward amended, not to offenses by foreigners, though committed on Englishmen, and on board English ships.* 4. Liability of extraterritorial principal. § 323. Extraterritorial principal may be intraterrito- rially indicted. Cases can easily be conceived in which a per- son whose residence is outside a territory may make himself, 2See Phillipi v. Bowen, 2 Pa. St. v. Anderson, 11 Cox, C. C. 198, L. R. 20, 1845; Com. v. Kunzmann, 41 Pa. 1 C. C. 161, 38 L. J. Mag. Cas. N. 429, 1861. Infra, 1528. S. 12, 19 L. T. N. S. 400, 17 Week. 8Infra, § 3830. See Wharton, Rep. 208, 8 Eng. Rul. Cas. 1, 1869. Confi. L. § 874. See Rex v. Mattos, 7 Car. & P. 458, 437 Geo. III, chap. 128, § 6; 52 1836. Geo. III, chap. 104, § 7. 3 Rex v. Depardo, 1 Taunt. 26, 51 Wm. IV. chap. 66, § 44. Russ. & R. C. C. 184, 9 Revised Rep. 19 Geo. IV. chap. 31, § 7. 693, 1808; Rex v. Mattos, 7 Car. & 2Rex v. Sawyer, Russ. & R. C. C. P. 458, supra. See article in London 294, 2 Car. & K. 101, 1818; Reg. v. Law Magazine for 1868, p. 124. For Azzopardi, 1 Car. & K. 203, 2 Moody, subsequent statute, see supra, § 312. C. C. 289, 1 Cox, C. C. 28, 1848; Reg. 404 CRIMINAL LAW. [§ 323 by conspiring extraterritorially to defeat its laws, intrater- ritorially responsible. If a forger, for instance, should es- tablish on the Mexican side of the boundary between the United States and Mexico a manufactory for the forgery of United States securities, for us to hold that, when the mischief is done, he would not be liable to arrest on extradition process, and that he could afterward take up with impunity his resi- dence in the United States, would not merely expose us to spoliation, but bring our government into contempt. To reply that in such case the Mexican government can be relied upon to punish is no answer; because, first, in countries of such imperfect civilization penal justice is uncertain; secondly, because Mexico may hold that we have jurisdiction, and that, therefore, she will not exert it; thirdly, because in cases where, in such countries, the local community gains greatly by the fraud, and suffers by it no loss, the chances of conviction and punishment would be slight; and, fourthly, because all that the offender would have to do to escape justice in such a case would be to walk over the boundary line into the United States, where on this hypothesis he would go free. In political offenses there is this consideration to be added, that it is now an accepted doctrine of international law that no government will punish a refugee for treason against a sovereign;* and hence a government, on the hypothesis here disputed, would have no redress for offenses directed abroad by refugees against its sovereignty, even though the offenders were its own subjects, and should, after the commission of the offense, return to its soil. § 324. Principal responsible for extraterritorial acts. A party who in one jurisdiction puts in operation a force which does harm in another jurisdiction is responsible in both jurisdictions for the harm.’ That he is responsible in S. W. 309, 1890. [Miss.] Wooten v. 1 Wharton, Confl. Laws, §§ 876, 910 Miller, 7 Smedes & M. 380, 1846. 1Supra, § 288, note; infra, §§ 332, 1274. See also Wharton, Confl. L. §§ 877-921; Wharton, Crim. Ev. § 112. See, as accepting views in text, [Ark.] State v. Chapin, 17 Ark. 561, 65 Am. Dec. 452, 1856. [Ky.] Hat- field v. Com, 11 Ky. L. Rep. 468, 12 [Tex.] Hanks v. State, 18 Tex. App. 289, 1882. As to responsibility in the place of starting the offense, see infra, §§ 332-334. In Indiana a statute making a for- eign principal punishable for his agent’s criminal acts within the state § 324] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 405 the place where he starts the wrong will be hereafter seen.? His responsibility in the place where the wrong takes effect is also generally recognized. Thus, it has been held that the originator of a nuisance to a stream in one country, which af- fects such stream in another country, is liable to prosecution in the latter country; * that the author of a libel uttered by him in one country, and published by others in another country, from which he is absent at the time, is triable in the latter country ; * that such is also the case when a man in one country incites an agent in another country to commit perjury;° that he who on one side of a boundary shoots a person on the other side is amenable in the country where the blow is received; ® that he who in one state employs an innocent agent to obtain goods, by false pretenses, in another state, is amenable in the latter state;” that the forger in one state of a title to land has been held te apply only to per- sons who are principals in the com- mission of the offense Johns v. State, 19 Ind. 421, 81 Am. Dee. 408, 1862. 2Infra, §§ 333, et seq. 3 Stillman v. White Rock Mfg. Co, 3 Woodb. & M. 538, Fed. Cas. No. 13,446, 1849; State v. Smith, 82 Towa, 423, 48 N. W. 727, 1891. See Rex v. Burdett 4 Barn. & Ald. 95, at pp. 175, 176, 22 Revised Rep. 539, 1821; Bulwer’s Case, 7 Coke, 2 b, 3 b; Comyns, Dig. Action, N. 3, 11. Place of originating nuisance has jurisdiction. See infra, §§ 334, 335. 4 Rex v. Johnson, 7 East, 65, 1806; Com. v. Blanding, 3 Pick. 304, 15 Am. Dec 214, 1823. Place of mailing also has jurisdic- tion. See infra, §§ 333-335. 5Com. v. Smith, 11 Allen, 243, 1866. 61 Hale, P. C. 475; United States v. Davis, 2 Sumn. 482, Fed. Cas. No. 14,932, 1838; cited and approved in State v. Wyckoff, 31 N. J. L. 68, 1864; and the same point taken in Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89, 1869. Homicide—Shooting across state line—Person who fires the shot can- not be tried in the state from which the shot was fired, though both he and the person shot are citizens of that state. State v. Hall, 114 N. C. 909, 28 L.R.A. 59, 41 Am. St. Rep. 822, 19 S. E. 602, 1892. See infra, §§ 334, 335, as to United States v. Davis, 2 Sumn. 482, Fed. Cas. No. 14,932, 1838. 7 People v. Adams, 3 Denio, 190, 45 Am. Dec. 468, affirmed in 1 N. Y. 173, 1848, and authorities cited infra, § 325. Same principle held in Reg. v. Gar- rett, 6 Cox, C. C. 260, Dears. C. C. 232, 2 C. L. R. 106, 23 L. J. Mag. Cas. N. S. 20, 17 Jur. 1060, 2 Week. Rep. 97, 1854, infra, where Lord Campbell affirmed the principle, but ruled an acquittal on other grounds. “The rule,” said Chief Justice Beas- ley, of New Jersey, in 1864, “ap- pears to be firmly established, and upon very satisfactory grounds, that where the crime is committed by a person absent from the country in which the act is done, through the means of a merely material agency, or by a sentient agent who is in- nocent, in such cases the offender is punishable where the act is done. The law implies a constructive pres- ence from the necessity of the case; otherwise the anomaly would exist of a crime, but no responsible criminal.” State v. Wyckoff, 31 N. J. L. 69. This view, as will be seen in a succeeding section, is sustained in several other states, though dissented CRIMINAL LAW. [§ 324 406 in another state may be punished in the latter state;* that a thief who sends goods by another person, not an accomplice in the theft, to a foreign state for sale, is indictable in the latter state;° that he who sells through agents, guilty or innocent, lottery tickets in another state, is amenable in the state of the sale, though he was absent from such state personally; ° that he who gives poison in one jurisdiction, which operates in another, is responsible in the latter jurisdiction, and so is a person who in one county advises another, by signals, when to commit a highway robbery in another county; and that though an accessory before the fact is amenable in the place of accessoryship,” he may become, if directing the execution from in Connecticut. Com. v. Grady, 34 Conn. 119, 1866; infra, § 325. Stripping the question of the arti- ficial complications arising from the common-law distinction between fel- ony and misdemeanor, the better opinion is that the country of the starting and the country of the con- summation of a crime have each jur- isdiction in cases where there is a substantive offense in each. Thus, where the instruments for the com- ‘mission of a homicide are prepared in England to be applied in France, England as well as France has jur- isdiction of the conspiracy; and so the country of the sending of libels ‘and of noxious compounds has juris- diction as well as the country of re- ceiving. Infra, §§ 333-335, 339-341. 8 Lindsey v. State, 38 Ohio St. 507, ‘1882; Hanks v. State, 13 Tex. App. 289, 1882. See Re Carr, 28 Kan. 1, 1882. 8Com. v. White, 123 Mass. 430, 25 Am. Rep. 116, 1877. 10Com. v. Gillespie, 7 Serg. & R. 469,10 Am. Dec. 475, 1821. Under statutes of the United States punishing sending and deliver- ing of lottery matter through the mails (act of Sept. 19, 1890), the offense of “delivering” is consum- mated where matter received, and therefore a citizen of New York send- ing such matter through the mails to a citizen of Illinois may be tried in Illinois. United States v. Horner, 44 Fed. 677, 1891. 11 Overt act of homicide by admin- istering poison, within the meaning of the law, consists not simply in prescribing or furnishing the poison, but also in directing and causing it to be taken; so that if the poison be prescribed and furnished in one county, to a person who carries it into another county, and there, under the directions given, takes and be- comes poisoned, and dies of the poison, the administering is con- summated, and the crime committed, if committed at all, in the county where the person is poisoned. Rob- bins v. State, 8 Ohio St. 131, 1858. It makes no difference that the party implicated never was in the state where the offense was com- mitted. Lindsey v. State, 38 Ohio St. 507, 1882. 12State v. Hamilton, 13 Nev. 386, 1878. Conspiracy to rob—Principals.—In this case it was proved that there was a conspiracy between the de- fendants and others to rob the treas- ure of Wells, Fargo, & Company, on the road between Eureka and some point in Nye county, Nevada; that H was to ascertain when the treasure left Eureka, and signal his confeder- ates by a fire on the top of a moun- tain in Eureka county, which could be seen by them in Nye county, 30 or 40 miles distant; and that the signals were given by him, and his confederates attacked the stage and attempted to rob the treasure. It was held that H was a principal. 13 Infra, § 333. § 325]IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 407 of the act, amenable in the place of consummation.“ In a case of obtaining money by false, pretenses in England, the offender being at the time in Russia, this absence was in itself held to be no ground for acquittal; and Lord Campbell, sus- tained by Baron Parke, declared “that a person may, by the employment as well of a conscious as of an unconscious agent, render himself amenable to the law of England when he comes within the jurisdiction of our courts;” Baron Parke saying that “a person, though personally abroad, might commit a crime in England, and be afterward punished here; as, for instance, if he, by a third party, send poisoned food to one in England, meaning to kill him, he would be guilty of murder, if death ensued, although he could not be amenable to justice till he was persenally within the jurisdiction.”* “It was a monstrous thing,” Sir R. Phillimore is reported as saying at a meeting of the Law Amendment Society, in 1868, “that any technical rule of venue should prevent justice from being done in this country on a criminal for an offense which was perpe- trated here, but the execution of which was concocted in another country.” Hence we may hold that presence at the crime is not an essential condition of indictability.”* § 325. Doubts in cases where agent is independently liable. Some doubt, however, has been expressed as to whether, when the agent who thus intraterritorially con- summates the guilty act is personally responsible, the princi- pal who extraterritorially plans it is intraterritorially liable in eases of felony, he being absent from the jurisdiction at the time of the commission of the offense. That a foreign insti- gator is so liable is expressly denied by the supreme court of New Jersey,’ in a case in which it was ruled that unless the agent was innocent, so as to be a mere tool, the party em- ploying him could not be regarded as a principle; and that if 1#Supra, § 263; State v. Ayers, J. Mag. Cas. N. S. 162, 14 Jur. 533, 8 Baxt. 96, 1874. 1849. : 15 Reg. v. Garrett, 6 Cox, C. C. 260, ,_16Com. v. White, 123 Mass. 430, 25 Am. Rep. 116, 1877; S. P. Reg. Dears. C. C. 282, 2 C. L. R. 106, 23 L. v. Manley, 1 Cox, C. C. 104, 1845; J. Mag. Cas. N. S. 20, 17 Jur. 1060, Ree. v. Bull, 1 Cox Cc. C. 281 2 Week. Rep. 97, 1854, and see Reg. T State v. Wyckoff, 31 N. a1 ée v. Jones, 4 Cox, C. C. 198, 1 Den. C. 1864. The same distinction is taken C. 551, Temple & M. 270, 3 Car. & in Lindsey v. State, 38 Ohio St. 507, K. 346, 4 New Sess. Cas. 953, 19 L. 1882. 408 CRIMINAL LAW. [§ 325 such employing party were simply an accessory before the fact, absent from the state at the principal offense, he could not, by the common law, be tried in New Jersey. The same view has been maintained as to felonies, in New Hampshire,’ North Caro- lina,’ and Arkansas,* though it is conceded that by statute the accessory may be made triable in the place of the overt act.” It is to be noticed, however, that this view, growing from the distinction between an innocent and a guilty agent in case of felony, is purely technical, based on an arbitrary fiction of ‘the old common law relating to felonies alone, and not touching the question of general jurisdiction. Thus, in treason and misdemeanors, in which all concerned are principals, and in which therefore the rule that an accessory can be tried only in the place where he is accessory, if there be such a rule, does not obtain, all parties concerned are liable to punishment in any country where an overt act is performed. This is expressly ruled as to treason;® and in misdemeanors the result is de- monstrable, as it is in those states in which all accessories be- fore the fact are by statute principals. If, in such cases, the extraterritorial offender acts through an innocent agent, he is on all sides regarded as intraterritorially liable. If he acts through a guilty agent, he is indictable for conspiracy, when jurisdiction vests in any country in which an overt act is performed ;7 or, on the same reasoning, he may be so indicted as principal in misdemeanor, or as inciter, when the offense in any of its aspects is a misdemeanor.® Even as to felonies, the rule that the absent accessory before the fact may be indicted in the country of the commission, where the principal is re- sponsible, has been explicitly affirmed in Connecticut,® and is 2State v. Moore, 26 N. H. 448, 1854. State, 19 Ind. 421, 81 Am. Dee. 408, 1862; State v. Hamilton, 18 Nev. 3 State v. Knight, 1 N. C. pt. 2, p. 44 (Taylor, p. 65) 1799. See Ex parte Smith. G Law Rep. 57, 3 Me- Lean, 121, Fed. Cas. No..12,968, 1846. 4State v. Chapin, 17 Ark. 561, 65 Am. Dee. 452, 1856. 5 Infra, § 333. 6 Ibid. 7Infra, §§ 382, 1464. This distinction well stated in State v. Chapin, 17 Ark. 561, 65 Am. Dec. 452, 1856. See also Rex v. Johnson, 6 East, 588, 1805; Johns v. 386, 1878. 8Com. v. Smith, 11 Allen, 248, 1866. See Reg. v. Murdock, 2 Den. C. C. 298, Temple & M. 604, 21 L. J. Mag. Cas. N. S. 22, 16 Jur. 19, 5 Cox, C. C. 360, 1850. 9State v. Grady, 34 Conn. 118, 1866. See Rex v. Brisac, 4 East, 164, 7 Revised Rep. 151, 8 Eng. Rul. Cas. 138, 1804, 2 Bennett & H. Lead. Crim. see 2d ed. 151; 1 Bishop, Crim. Law, § 80. As to Warren & Costello’s Case, § 326] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 40% good in all those states in which accessories are by statute principals.” But the assertion of such jurisdiction in the place of consummation in no way impairs the jurisdiction of the place of accessoryship over the accessory.” It is conceded that to secure the trial of a subject in a foreign land the offended sovereign must obtain possession of the person of such offender by process of extradition. This is elsewhere fully discussed.” To arrest such offender in a foreign sovereign’s territory, either by force or stealth, is a violation of the law of nations. Yet though so, it is a violation of which the offended sovereign alone has a right to complain. The person so arrested cannot plead the unlawfulness of the arrest. in bar. 5. Offenses by aliens in country of arrest. § 326. Aliens indictable in the country of the crime; Roman law. By the modern Roman law, all residents are bound by the territorial law. “Whoever,” says Berner, in his: authoritative work on the territorial bounds of penal juris- diction,’ “enters our territory, juridically binds himself to. submit to the laws of this territory. This duty is the more imperative as the laws which exact obedience are the more stringent. It is absurd to suppose that this obedience diminishes. or ceases in respect to those laws on which the very existence of the community is staked.”* And it is even held in Prussia see United States Diplomatic Cor- respondence, 1868, pt. I. pp. 51, 129. For a report of these cases, and also for correspondence concerning the same, see same volume, pp. 341-348. 10See Com. v. Pettes, 114 Mass. 307, 1873. Jurisdiction in place of consumma- tion supposes, it should be added, possession of the defendant’s person, and is therefore ancillary to jurisdic- tion of place of concoction. Infra, § 333. 11Infra, § 333. 12 Wharton, Crim. Pl. & Pr. §§ 39, et seq; State v. Smith, 1 Bail. L. 283, 19 Am. Dec. 679, 1830. 13 Ex parte Krans, 1 Barn. & C.. 258, 2 Dowl. & R. 411, 25 Revised Rep 389, 1825; Ex parte Scott, 9 Barn. & C. 446, 4 Moody & R. 361, 1829. [Pa.] Dow’s Case, 18 Pa. 37, 1851. [Vt.] State v. Brewster, 7 Vt. 118, 1835. See fully, Wharton, Crim. Pl. & Pr.. § 27. 1 Berlin, 1855, p 83. 2For the United States alien act,. authorizing the removal of alien ene- mies, see Brightly, i. p. 33; U. S. Rev. Stat. 1878, §§ 4067 et seq., 1 Fed. Stat. Ann. 435, et seq., U. S. Comp. Stat. 1901, p 2762. CRIMINAL LAW. [§ 326 410 that a foreigner who lingers in a country with which the sovereign of his allegiance is at war may be tried for treason to the country of his residence, if he aids in warlike designs against it.® § 327. —So in English and American law. Local allegi- ance,” says Blackstone, “is such as is due from an alien or stranger born, for so long time as he continues within the King’s dominion and protection; and it ceases the instant the stranger transfers himself from the kingdom to another.’ Indictments for political offenses of all grades have been based on this form of allegiance.” In Guinet’s Case, which was a prosecution in the United States circuit court in Philadelphia in 1795, for fitting out in Philadelphia a French armed vessel, to cruise against England, the United States and England be- ing then at peace, the point that the defendant, a Frenchman by birth, had entered into the service of the French republic, was made by the defense, but was treated by the court as without weight, and the defendant was convicted.’ In the trial of the Fenian conspirators in England and Ireland, in 1868, several of the defendants set up alienage and citizenship in the United States as a defense, but in vain. Mr. Adams, speaking of this in a letter to Mr. Seward, of May 2, 1868,* says: “The only question he,” one of the defendants, “raises, is that of citizen- ship; but even that relates rather to the form of trial, as on the merits, even his being admitted to be an alien would not shield him from the consequences of acts dangerous to the peace of the realm.” The same view was taken by Mr. Buchanan, when Secretary of State.® Such, also, is the tenor of a speech by 8 Preussiches, St. G. B. § 70. fort to the enemy during the War, 1Com. ii. 377. were held not exempt from prosecu- 2See Vint’s Trial, 27 How. St. Tr. 627; Peltier’s Trial, 28 How. St. Tr. 530, 1803; Reg. v. Bernard, 1 Fost. & F. 240, 1858, and cases cited infra, §§ 333, 2152. 8 Wharton, St. Tr. 93; United States v. Wiltberger, 5 Wheat. 76, 5 L. ed. 37, 1820; Wharton, St. Tr. 185. The act of July 31, 1861, pun- ishing seditious conspiracy, applies to “persons within any state or ter- ritory of the United States,” embrac- ing all residents. Aliens who, being domiciled in the country previous to the late Civil War, gave aid and com- tion for treason and giving aid and comfort to the enemy. Carlisle v. United States, 16 Wall. 147, 21 L. ed. 426, 1872. See United States v. Villato, 2 Dall. 370, 1 L. ed. 419, Fed. Cas. No. 16,622, 1797; Sprague, J., 23 Law Rep. 705. 4Diplomatic Cor. U. S. 1868, pt. i. p. 192; Reg. v. M’Cafferty, 10 Cox, C. C. 603, Ir. Rep. 1 C. L. 363, 15 Week. Rep. 1022, 1867. 5See Cockburn on Nationality, London, 1869, p 82, for other author- ities to this effect. § 328] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 411 Lord Lyndhurst in the House of Lords, in March, 1853.8 Nor can such an alien devest himself of the penal incidents of his acts against the government which he attacks, as those incidents are defined by the lex delictt commissi. Of this we have, in 1870, an English illustration. An alien was indicted for high treason, in compassing to depose the Queen, and in levying war against the Queen. The material overt acts of compassing to depose the Queen were: (1) Conspiring at Dublin, to raise rebellion and levy war within the realm; and (2) levying war within the realm at various places. There was evidence that he was a member of the directing body of a treasonable conspiracy, having for its object the overflow of the Queen’s government and the establishment of a republic in Ireland. There was also evidence that he had planned an attack upon the castle of Chester, in England, for the purpose of seizing arms there, and conveying them to Ireland, with the view of raising an insurrection there. Evidence was also given that the directing body had, in February, 1867, given orders for a rising in Ireland. On the 23d of February, 1867, he was arrested while attempting to land in Dublin. On the 5th of March, 1867, he being in custody, an insurrectionary move- ment, the result of the commands of the directing body of the conspiracy, broke out in several places in Ireland, and various acts of war were committed. It was held that these several acts of war were admissible against him on the trial.’ Foreign ambassadors and their retinues, it should be added, are not indictable for crimes committed in the country to which they are officially deputed. The only remedy is to send them home.® § 328. —Soasto Indians. An Indian who is not, under the Federal Constitution, the member of an independent tribe, relieved as such from state jurisdiction, is indictable in a state court for an offense committed in such state, in violation of the laws of the state, in the same way as would any other foreigner residing in the state.’ The state courts, also, have 6124 Hansard’s Parl. Deb. 1046, 81 Kent, Com. 39; United States cited Wharton, Confl. L. § 904, and v. Lafontaine, 4 Cranch, C. C. 173, ‘discussion. 6 Cr. L. Mag. 155-180. Fed. Cas. No. 15,550, 1834; Respub- 7 Reg. v. M’Cafferty, Ir. Rep. 1 C. lica v. De Longchamps, 1 Dall. 111, L. 368, 10 Cox, C. C. 603, 15 Week. 1 L. ed. 59, 1784. Rep. 1022, 1867. 1[Fed.] Worcester v. Georgia, 6 412 CRIMINAL LAW. [§ 328 jurisdiction of homicides within their limits, even of tribal Indians by white men.? Power, it has been held, exists in Congress to prescribe punishment for the homicide of white men by Indians within Indian reservations; * and to regulate the sale cf liquor or other commodities among Indian tribes, whether within or without state limits.* The complicated ques- tions arising from conflicts of jurisdiction in this relation are elsewhere more fully discussed.® But it may now be regarded as settled, that Congress, even over Indian reservations, is supreme, subject only to the Constitution; and that this supreme au- thority may be exercised by treaty without specific legislation.® At the same time, by § 2146 of the Revised Statutes, Congress Pet. 515, 518, 8 L. ed. 483, 485, 1837; United States v. Holliday, 3 Wall. 407, 18 L. ed. 182, 1865; United States v. Sa-coo-da-cot, 1 Abb. (U. S.) 377, 1 Dill. 271, 3 Am. L. T Rep. 118, Fed. Cas. No. 16,212, 1867; United States v. Cisna, 1 McLean, 254, Fed. Cas. No. 14,795, 1835; United States v. Stahl, 1 Woolw. 192, Fed. Cas No. 16,373, 1864; Kie v. United States, 27 Fed. 351, 1886. [Ala.] Caldwell v. State, 1 Stew. & P. (Ala.) 327, 1832. [Ark.] Reed v. State, 16 Ark. 499, 1855. ([Cal.] People v. Antonio, 27 Cal. 404, 1865; People v. Ketchum, 73 Cal. 635, 15 Pac. 353, 1887. [Ga.] State v. Tas- sels, Dudley (Ga.) 229, 1830. [Kan.] Clay v State, 4 Kan. 49, 1866. [N. C.] State v. Ta-cha-na-tah, 64 N. C. 614, 1870. [Tenn.] State v. Fore- man, 8 Yerg. 256, 1835. [Wis.] State v. Doxtater, 47 Wis. 278, 2 N. W. 4389, 1879 2 Pickett v. United States, 1 Idaho, 523, 1876. 3See United States v. Martin, 8 Sawy. 473, 14 Fed. 817, 1882; United States v. Bridleman, 7 Sawy. 243, 7 Fed. 894, 1881; People v. Ketchum, 73 Cal. 635, 15 Pac. 353, 1887. Rape—Whites in Indian territory. —Rape committed by a white man upon a white woman on an Indian reservation is triable in United States courts; United States v. Par- tello, 48 Fed. 670, 1891. 4 Cherokee Tobacco Case (Boudinot v. United States), 11 Wall. 616, 20 L. ed. 227, 1870; United States v. Earl, 9 Sawy. 79, 15 Chicago Leg. News, 359, 17 Fed. 75, 1883; United States v. Shaw-Mux, 2 Sawy. 364, Fed. Cas No, 16,268, 1871. See on this question, Wharton, Am. Law, §§ 26, 265, 434. 5 See Wharton, Confl. L. § 7; Whar- ton, Am. Law, §§ 26, 265, 434; Walk- er, Indian Quest., Pamp. 1874; N. Am. Rev. Ap. 1873. 6Ex parte Crow Dog (Ex parte Kang-Gi-Shun-Ca) 109 U. 8. 556, 27 L. ed. 1030, 3 Sup. Ct. Rep. 396, 1883. Constitutionality. — “That this (Federal) legislation could constitu- tionally be extended to embrace In- dians in the Indian country, wherever it operates of itself, without the aid of any legislative provision, was de- cided by this court in the case of United States v. 43 Gallons of Whis- ky (United States v. Lariviere), 93 U. 8. 188, 23 L, ed. 841, 1876 See Cherokee Tobacco Case (Boudinot v. United States), 11 Wall. 616, 20 L. ed. 227, 1870; Holden v. Joy, 17 Wall. 211, 21 L. ed. 523, 1872; Ex parte Crow Dog (Ex parte Kang-Gi-Shun- Ca), 109 U. S. 556, 568, 7 L. ed. 1030, 1035, 3 Sup. Ct. Rep. 396, 1883 (in this case it was held that under Federal legislation and treaties, the Federal courts in Dakota had no ju- risdiction of offenses in Indian res- ervations, of Indian on Indian); Smith v. United States, 151 U. S. 50, 38 L. ed. 67, 14 Sup. Ct. Rep. 234, 1894, decides the same. Compare: Ex parte Sloan, 4 Sawy. 330, Fed. Cas. No. 12,944, 1877. § 329] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 413 has expressly excepted from the jurisdiction of the courts over offenses in Indian country, “ crimes committed by one Indian against the person or property of another Indian,” and offenses committed by an Indian who has been punished by the local law of his tribe.” § 329. —But not so as to belligerents. | Where a per- son bearing arms commits illegal acts within our territorial limits, by command of his own sovereign or pretended sovereign, then our quarrel is with the sovereign, and not with the sub- ject, provided we recognize such sovereign as a belligerent. In time of war this is clear; it being conceded that we then can treat such offender, if captured in the illegal act, only as a pris- oner of war. In time of peace, the better opinion is that the same rule prevails. If our laws be in this way infringed, we must seek redress from the invading sovereign, and not from the subject who acts as the latter’s subaltern.* But this applies only to cases where the subject is an officer or functionary of the foreign sovereign, or where the foreign sovereign adopts his act.? On the same reasoning, when, as in the case of our late 7Ibid.; Smith v. United States, 151 U.S. 50, 38 L. ed. 67, 14 Sup. Ct. Rep. 234, 1894. Alaska is not an “Indian country” within the meaning of this section of the Revised Statutes, and the dis- trict court of Alaska has jurisdiction of the murder of one Indian by an- other Indian therein; Kie v. United States, 27 Fed. 351, 1867. But where the statute applies, state courts as well as Federal are excluded. Ex parte Cross, 20 Neb. 417, 30 N. W. 428, 1887. Homicide in Indian territory—In- dian killing white man.—That the Federal courts have exclusive juris- diction of the homicide of white men by Indians on Indian reservations, see United States v. Monte, 3 N. M. 122, 3 Pac. 45, 1884. As to larceny by white man from Indian on reservation, see United States v. Ewing, 47 Fed. 809, 1891. For the United States, by yielding up her jurisdiction over offenses com- mitted by one Indian against anoth- er, has not lost the rest of her ex- elusive jurisdiction over reservations. Re Wilson, 140 U. S. 575, 35 L. ed. 5138, 11 Sup. Ct. Rep. 870, 1891 But when an Indian commits a crime outside of the Indian country (although on another Indian), he is, like any other person, amenable to the criminal laws of the place where the crime was committed. Re Wolf, 27 Fed. 606, 1886; United States v. Thomas, 47 Fed. 488, 1891; People v. Ketchum, 73 Cal. 635, 15 Pac. 353, 1887. 1The Emulous, 1 Gall. 563, Fed. Cas. No. 4,479, 1814; supra, § 124 2Infra, § 433, Wharton, Confl. L. § 911; The Emulous, 1 Gall. 563, Fed. Caz. No. 4,479, 1814; Com. v. Blod- gett, 12 Met. 56, 1847; People v. McLeod, 1 Hill, 377, 25 Wend. 483, 87 Am. Dec. 328, 1841, where the principle was denied by the New York supreme court, and asserted by the Federal government. See review in 4 Law Rep. 169, 1844; McLeod’s Trial, by Gould, pamp.; Neilson’s Choate, 215; Globe Newspaper, 1841, App. 422; 1 Am. Law Mag. 348, and compare John Quincy Adams’s Diary, im loco; 6 Webster’s Works, 244: CRIMINAL LAW. [§ 329 414 Civil War, insurgents are recognized as belligerents, then such insurgents, if in arms, are not punishable in the civil courts for acts done when on military duty, but are responsible solely to military law, according to the rules of war.® 6. Offenses by aliens abroad. § 330. Extraterritorial offenses against our rights may be intraterritorially indictable. As we have already seen,’ a principal organizing abroad a crime which is executed within our territory is indictable in our courts for the crime. We will presently see that by statute aliens forging our government se- curities abroad, or committing perjury before our consuls, are made indictable in our courts. We may therefore hold that of- fenses against our rights may be indictable though extraterri- torially designed.? Lawrence Com. sur Wheat. iii. 430; Com. v. Blodgett, 12 Met. 56, 1847, 37 Am. Dee. 363. For review of debate in Senate on this case, see 18 Alb. L. J. 506 et seq. Compare opinion of U. S. Attor- ney General in the Modoc Case, 14 Ops. Atty. Gen. 249, June, 1873. And see Phillips v. Eyre, L. R. 6 Q. B. 1, 24, 40 L. J. Q. B. N. 8. 28, 1870; 1 Ops. Atty. Gen. 45, 81; Maison- naire v. Keating, 2 Gall. 325, Fed. Cas. No. 8,978, 1815. Mr. Webster’s Position, that in such case the quarrel is exclusively with the foreign sovereign, is con- tested by Dr. Lieber. See Lieber’s Life, 149. Lord Campbell, in his autobiog- raphy (Life, 2d ed. 1881, p. 19), says: “The affair of the Caroline was much more difficult. Even Lord Grey told me he thought we were quite wrong in what we had done. But assum- ing the facts that the Caroline had been engaged, and when seized by us was still engaged, in carrying sup- plies and military stores from the American side of the river to the rebels in Navy island, part of the British territory, that this was per- mitted, and could not be prevented, by the American authorities, I was clearly of opinion that although she lay on the American side of the river when she was seized, we had a clear right to seize and destroy her, just as we might have taken a battery erected by the rebels on the Ameri- can shore, the guns of which were fired against the Queen’s troops in Navy island. I wrote a long justi- fication of our government, and thus supplied the arguments used by our foreign secretary, till the Ashburton treaty hushed up the dispute.” 8 Supra, § 124; Wharton, Confl. L. § 909; 1 Hale, P. C. 433, 3 Co. Inst. 50. [U. S.] Coleman v. Tennessee, 97 U. 8. 509, 24 L. ed. 1118, 1876. [Ga.] Clark v. State, 37 Ga. 195, 1867. [Ky.] Com. v. Holland, 1 Duv. 182, 1873. [Tenn.] Hammond v. State, 3 Coldw. 129, 1866. Compare: United States v. Great- house, 2 Abb. (U. S.) 364, Fed. Cas. No. 15,254, 1868; infra, §§ 433, 2147. As to martial law, see Wharton, Crim. Pl. & Pr. § 979; Wharton, Am, Law, § 217; infra, § 344. 1Supra, § 323. 2The several theories of criminal jurisdiction may be classified as fol- lows: I, SupsEcrive, or those based on the conditions of the offender. 1. Universality of jurisdiction, which assumes that every state has jurisdiction of all crimes against § 331] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE, 415 § 331. Jurisdiction claimed in case of perjury and for- gery before consular officers. either itself or other states by all persons at all places. This theory has few advocates in England or the United States. It has, however, the high authority of Taney, Ch. J., who said in Holmes v. Jennison, 14 Pet. 540, 568, 569, 10 L. ed. 579, 593, 594, 1840, that the states of the Un- ion “may, if they think proper, in order to deter offenders from other countries from coming among them, make crimes committed elsewhere punishable in their courts, if the guilty party shall be found within their jurisdiction.” 2. Personal jurisdiction, which as- sumes that a state has jurisdiction over all crimes committed by its sub- jects, no matter what may be their residence at the time of the offense, or the sovereignty whose rights they invade. This theory has little sup- port in our jurisprudence. It is oth- erwise in England. In the case of Tivnan (Tirnan), 5 Best. & S. 645, 679, Chief Justice Cockburn says: “An offense may be cognizable, tri- able, and justiciable in two places,— e. g.. a murder by a British subject in a foreign country. A British sub- ject who commits a murder in the United States of America may be tried and punished here by our mu- nicipal law, which is made to extend to its citizens in every part of the world.” Cited by Blatchford, J., Stupp’s Case, 11 Blatchf. 124, Fed. Cas. No. 13,562, 1874. 3. Territorial jurisdiction, which assumes that each state has cogni- zance of all offenses when the of- fender at the time of the offense was on its territory; but that it has jurisdiction of no other offenses. This has been the prevalent English and American theory. Il. Ossecrive, which assumes that each state has jurisdiction of all of- fenses which assail its rights, or the rights of its subjects, no matter where the offender was at the time of the commission of the offense. This view, which appears to be the one best calculated to reconcile our adjudications on the vexed question Jurisdiction over aliens before us, I have discussed at some length in the Southern Law Review for December, 1878, (vol. iv. p. 676). From this article I condense the fol- lowing: The real theory of jurisdiction, as it is called by its advocates, rests, as has been seen, on the objective, rath- er than on the subjective, side of crime. Jurisdiction is acquired, not because the criminal was at the time of the crime within the territory of the offended sovereign, nor because he was at the time a subject of such sovereign, but because his offense was against the rights of that sovereign or of his subjects. The real theory is, therefore, valuable as an adjunct to the territorial theory. We punish all who offend on our own soil be- cause our duty is to attach to crime committed within our borders its ret- ribution. But, in addition to this, we must punish, when we obtain control over the person of the offender, of- fenses committed abroad, by either subject or foreigner, against our own rights. But the term “our own rights,” in this sense, is susceptible of a double meaning. It may be the sum of all the possible objects of crime found within our territory; or it may mean the sum of all the pos- sible objects of crime belonging to the State or any of its subjects. The first, therefore, confines the real the- ory to attacks upon objects existing within our territorial bounds. The second expands this theory so as to include attacks upon our citizens and their property abroad. Or, to illus- trate this distinction: by the first of these theories—the “territorial real,” as it might be called,—the ex- ecution of a murderer of a subject on a savage island would not be justified; by the second,—the “per- sonal real,”—it would. A foreigner, to take another illustration, who forges abroad American coin, by the first theory, is liable only in case the false coin circulates in this country; while by the second theory he is lable for the circulation of such coin abroad. 416 CRIMINAL LAW. [§ 331 abroad is expressly claimed by the United States in cases of perjury and forgery before its consular officers; nor, as has been Two objections, however, may be made to the real theory of jurisdic- tion just stated: The first is that it renders foreign- ers liable for disobedience to a law with which they are unfamiliar. But if this objection is valid, it would re- lieve foreigners intraterritorially as well as extraterritorially. If a for- eigner can set up the defense of ig- norance of our laws abroad, he can set up the defense of ignorance of our laws on our own shores. The foreigner who, when arriving in one of our cities, passes counterfeit Unit- ed States coin, is not likely to be any more familiar with our statutes than he who executes the forgery abroad. But in point of fact no such ignor- ance can be set up. The foreigner who forges our securities abroad knows forgery to be a crime as well as does the most expert counterfeiter who has never left our shores. Neith- er the domestic nor the foreign coun- terfeiter is familiar with the letter of our statutes; and if ignorance of the letter excuses, it would excuse the most veteran home malefactor. In other words, the presumption of ‘knowledge of the unlawfulness of crimes mala in se is not limited‘ by state boundaries. The unlawfulness of such crimes is assumed wherever civilization exists. Another and more serious objection is that the real theory assails the prerogatives of foreign sovereignties. To this may be replied that the ob- jection proves too much. If a foreign sovereign has exclusive jurisdiction over his own subjects, then we can- not, under any circumstances, punish the subjects of a foreign sovereign. But this no one, even among the sturdiest advocates of the personal theory, pretends. It is conceded on all sides that the moment a foreign- er sets foot on our shores, we hold him liable to our penal system in all its details Nor is this all. There is no civilized state that has not passed statutes making it a criminal offense, punishable in its courts, for foreigners, even in their own coun- try, to forge its securities, or to make false and fraudulent oaths before its consuls. We do not, it is true, at- tempt to arrest them in their own land, unless as a preliminary to a de- mand for extradition; we are re- strained from making unconditional arrests by the countervailing prin- ciple of the inviolability of the soil of foreign states. But when such offenders come voluntarily or invol- untarily, within our borders, we try them as justly subject to our laws, on the ground that they have crim- inally assailed our rights. Nor is this all. Among the numerous cases of piracy which have been adjudica- ted in our courts, where is the case in which the defense of foreign alle- giance was ever set up? What coun- sel would have the audacity to claim that because a pirate was the sub- ject of a foreign prince, therefore he could not be tried for his piracy in the courts of the United States? What, however, are our own dis- tinctive rulings as to the important question which has been just dis- cussed? At the outset, in answering this question, we are arrested by the 6th Amendment to the Constitution of the United States: “In all crim- inal prosecutions the accused shall enjoy the right to a speedy and pub- lic trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be in- formed of the nature and cause of the accusation; to be confronted with the witnesses against him; and to have the assistance of counsel for his defense.” Does this clause control state pros- ecutions? Does it preclude any pros- ecution of an offender except in the state and district where he was when the offense was committed? What does “where the offense was commit- ted” mean? Waiving the first question, as to whether crimes cognizable by the states are subject to the limitation just stated, we are obliged to give a decided negative to the second ques- tion, and to maintain that the place § 331] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 417 seen, can there be serious doubt that an alien who, when abroad, plans violations of the laws of a foreign state, is amenable to where the crime takes effect, and not the place where the offender at the time stood, is the place of the com- mission of the crime. The history of the Federal government, in its sever- al departments, abounds with cases in which persons were put on their trial in districts in which they were not present at the time of the com- mission of the offence. We must, in fact, take the Amendment before us in connection with the 2d section of the 3d article of the Constitution, which provides that criminal trials “shall be held in the state where the said crimes shall have been commit- ted; but when not committed in any state, the trial may be at such place or places as the Congress may by law thave directed.” That the place of the commission of the crime is not necessarily the place where the of- fender stood at the time when the crime was committed, in the opinion of those concerned in the early con- struction of the Constitution, is further illustrated by the fact that ‘Congress, in execution of the power given by the Constitution to “define and punish piracies and felonies com- mitted on the high seas, and of- fenses against the laws of nations,” proceeded in one of its earliest ses- sions, to provide for the punishment on land of offenses committed at sea. Few questions, in fact, claimed earl- jer and more conspicuous attention from the executive than those which ‘concerned the arrest and punishment at home of offenses against our sov- ereignty, or against the law of na- tions, abroad. And for the purpose of providing a specific place of trial in such cases, it was prescribed by statute that “the trial of crimes com- mitted on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the dis- trict in which the offender is appre- hended, or into which he may be first brought.” That this limitation, how- ever, refers exclusively to the Federal government and to Federal sover- eignty, as indicated, not merely by the considerations we have already Crim. L. Vol. I.—27. noticed, but by the exclusive use of the word “district,” and the avoid. ance of the word “state,” in the stat- ute. But it is not only of cases in which the offender was, at the time of the offense, on the high seas, that we have thus claimed jurisdiction. By an act of Congress passed June 22, 1860, as is noticed in the text, we have invested with criminal juris- diction our consuls and commercial agents “at islands or in countries not inhabited by any civilized people, or recognized by any treaty with the United States.” By the prior act of August 11, 1848, consuls in China and Turkey were charged with power to “arraign and try,” in pursuance of treaty stipulations, “all citizens of the United States charged with of- fenses against law,” “which shall be committed in the dominions of Chi- na” “and Turkey.” A similar jurisdiction was assumed by us by the act of January 30, 1799, making it a misdemeanor for an American citizen abroad to negotiate with foreign governments. At common law this principle holds good. It is illustrated by the numer- ous cases which hold that corporeal presence at a crime is not necessary to convict an accessory before the fact, or even the principal in the sec- ond degree. Nor can we by any oth- er mode of construction explain the jurisdiction already mentioned as as- sumed by us in cases of offenses against our sovereignty committed by false swearing before our consuls abroad, and forgery of our securities abroad. Crime takes effect in this coun- try though the perpetrator was at the time in another land. The same reasoning applies to the jurisdiction assumed in most of our states over homicide where the death was within - the boundary, though the offender at the time stood outside of the boun- dary. Statutory, if not common-law, jurisdiction is in like manner claimed over larcenies and embezzlements ef- fected intraterritorially by an agent 418 CRIMINAL LAW. L§ 331 the laws of such state, should he be arrested on its soil after the commission of an overt act. Of course, it would be a defense at the time extraterritorially resi- dent. And it is now settled that he who organizes abroad an offense con- summated within our borders is re- sponsible to us though he may never have trod our soil. Thus, he who abroad employs an agent to obtain by false pretenses goods in one of our states is responsible to such state for obtaining the goods by false pre- tenses; People v. Adams, 3 Denio, 190, 1846, affirmed in 1 N. Y. 1738; same principle in Reg. v. Garrett, 6 Cox, C. C. 260, Dears. C. C. 232, 2 C. L. R. 106, 23 L. J. Mag. Cas. N. S. 20, 17 Jur. 1060, 2 Week. Rep. 97, 1854; see State v. Grady, 34 Conn. 119, 1866; and he who abroad incites an agent to commit perjury in one of our states is liable to indictment in such state for the perjury. Com. v. Smith, 11 Allen, 2438, 1866. It is true that in some cases we have intimations that this jurisdic- tion is only to be exercised where the agent is ignorant of the character of the offense he is employed to per- petrate, or at least is innocent of any guilty purpose as to such perpe- tration. State v. Wyckoff, 31 N. J. L. 65, 1864. But this does not in any way touch the question before us, which is, whether « person who at the time of the concoction and perpe- tration of an offense was not present in the state where it was committed is penally amenable to such state. And there can be no question that the rulings before us—whose author- ity is undisputed, and which, as we have seen, have been followed in sim- ilar cases hereafter arising in Eng- Jand and the United States—estab- lish such amenability. See supra, § 323. We have, therefore, in our Consti- tution, our statutes, and our judicial decisions, repeated affirmations of the principle that where an offense takes effect within our borders, or is di- rected against our laws, then we have jurisdiction to punish it, irrespective of the residence of the offender at the time of consummation. The place of such residence has jurisdiction over the attempt or conspiracy as the case may be. The place of consummation has jurisdiction of the offense con- summated on its soil. Infra, §§ 333- 335, These considerations peculiarly im- portant to the United States. On our southwest boundary lies Mexico, with whom, if we have a treaty for extradition, it is a treaty of very recent adoption, and of capricious ap- plication; while the state of muni- cipal law in Mexico is such that it is hopeless to look to Mexican courts to punish offenses concocted in Mex- ico for execution in our own land. Even if we should ask for justice in such cases the answer would be: “Take care of yourselves. The crime was to be done on your territory; it was therefore a crime on your soil; how can we punish a man for something done in another state?” Even should this pretext fail, corrup- tion, or national prejudice, or com- mon interest would succeed in rend- ering abortive any prosecution that might be instituted. In the mean- time, if we announce the principle that Mexico alone has jurisdiction in such cases, what. would become of us? The Mexican side of our boundary would be the undisturbed abode of hordes of depredators, who would make our country a desert for many miles deep. Parties of armed ma- rauders could come down in a swoop, pillage, ravish, and murder in every village or farmhouse, as far as swift horses could travel, and then return over the line unmolested, and there, in their security laugh insolently at the cries of their victims for ven- geance. The plea of necessity was considered by England sufficient to justify the destroying of the Caro- line, an insurgent steamer, in a port of the state of New York; and we did not, at the time, hesitate to ad- mit that if the case had not been one in which redress could have been obtained by application to our own courts, the necessity set up would have been a justification of the act. But if so, there can be no question of § 331] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. the application of the same plea of necessity to Mexico, so that, under its protection, we could cross the boundary line, arrest the criminals, and try them in the place of the con- summation of their crime within our borders. See this view sustained in Hanks v. State, 13 Tex. App. 289, 1882. Another interesting application of the same principle may be drawn from our relations to Indian tribes. With several of these tribes we have executed treaties conceding to them sovereignty over certain tracts of land. Within this sovereignty, crimes perpetrated by Indians upon Indians are tried by Indian authori- ties, in conformity to Indian laws. But no one has ever claimed that, even within his own territory, an In- dian can assail the rights of United States citizens without making him- self liable to United States laws. Supra, 328. I have thus attempted to show the inadequacy of the personal and of the territorial theories as limits of criminal jurisdiction. Of course, I do not mean to say that the State has not a claim to the obedience of its subjects, wherever they may be; all that I here argue is that the State can prosecute others than its subjects when they assail its rights. Nor do I dispute the right of the State to exercise penal discipline over all abiding within its borders; all that I claim is that the right of the State to exercise such discipline is not limited to those who were cor- poreally within its borders at the time of the commission of any of- fense for which it is incumbent on it to exact retribution. What I say is that the right of the State to exact such retribution, whenever its rights have been invaded, is not limited by the corporeal presence of the invader at the time of the invasion. And that this is the true view the fol- lowing summary may be adduced to show: It is the duty of the State to pro- tect not merely its territory, but its rights. These rights are: 1. Its political integrity. 2. The life, safety, and property of its subjects. When these rights are assailed on 419 our own soil by offenders who either remain at the time of the offense on foreign soil, or return to such soil when the offense is committed, we may exercise our jurisdiction over the crime in two ways. We may say to the foreign state within whose boundaries the offenders lurk, “Exe- cute justice for us in this case. Be our agent in trying, in your own courts, these offenders.” If such an appeal would be fruitless, then we have one or two remaining remedies. We may resort to a demand for ex- tradition; or, in a case of necessity, where redress can in no other way be had, we can enter the state where the offenders are harbored, destroy their engines of destruction, and ar- rest the offenders themselves, with a view to their trial in our own courts. In Texas.—In Ham v. State, 4 Tex. App. 645, 1878, the supreme court of Texas held that a statute of Texas providing that persons forging land titles to lands in that state should be liable to indictment whether the offence should be committed in or out of the state, was constitutional, and the conviction of one who com- mitted a forgery in Missouri sustain- able thereunder. The Massachusetts Bill of Rights prescribes that in “criminal prosecu- tions the verification of facts in the vicinity where they happen is one of the greatest securities of the life, liberty, and property of the citizen.” This would seem to favor the objec- tive rather than the subjective the- ory; in other words, the theory that the venue is the place of the act done, rather than the place where the agent was at the time of the act. See, as to this interpretation, Com. v. Parker, 2 Pick. 550, 1824; and see [Eng.] Reg. v. Jones, 1 Den. C. C. 551, Temple & M. 270, 3 Car. & K. 346, 4 New Sess. Cas, 953, 19 L. J. Mag. Cas. N. 8. 162, 14 Jur. 533, 4 Cox, C. C. 198. [Ala.] Mooney v. State, 8 Ala. 328, 1855. [Pa.] Com. v. Cor- lies, 38 Brewst. (Pa.) 575, 1869. [Tenn.] State v. Ayers, 8 Baxt. 96, 1874. [Tex.] Francis v. State, 7 Tex. App. 501, 1880. See, also, cases cited infra, §§ 334, 335, 2153. In the United States we have acts of Congress expressly asserting ju- 420 CRIMINAL LAW. [§ 331 to him that he committed such acts in obedience to his own sovereign, on whom the responsibility then shifts.’ § 332. —Punishment in such cases. Is the punishmert to be assigned to an alien, for political offenses committed abroad, to be the same as would be inflicted by the offended sov- ereign for similar offenses by his own subjects? This subject is hereafter discussed, but it may be here mentioned that it is argued with great justice, by Bar, an eminent German jurist, that the punishment a sovereign can thus inflict can be only that which he would impose upon offenses of the same grade committed by his own subjects against a foreign sovereignty. For there is a great difference in the degree of guilt between treason by a subject, and invasion of neutrality by an attack on the government of a foreign state.’ 7. Offenses committed part in one jurisdiction and part in another. § 333. Accessories and co-conspirators liable in place of overt act. As has been seen, accessories, in treason and in misdemeanors, are principals... The common-law rule is that the accessory is to be tried at the place where his guilty act of accessoryship took place,” though now, by statutes in several of the United States, he may be tried in the place having juris- diction of the principal act,? and by more recent statutes, mak- risdiction over offenses on the In- dian territory and on Guana islands. U.S. Rev. Stat. 1878, §§ 2128, 2150, 5576, 3 Fed. Stat. Anno. 161, U. 8. Comp. Stat. 1901, p. 3740, 3 Fed. Stat. Anno. 379, 3 Fed. Stat. Anno. 391. 1Supra, § 329, infra, § 433; Whar- ton, Confl. L. §§ 871-7. 1This latter point is decided in conformity with the text by Henke, i. § 90, and Heffter, § 26. To the same effect is the Roman law, L. 4 D. ad. leg Jul. Maj. 48, 4 that crimen majestatis could only be committed by « subject against his own sov- ereign. 1Supra, §§ 261, 262, 310. 2 An accessory before the fact may be tried in the place of accessory- ship. See, further: [Ark.] State v. Chapin, 17 Ark. 561, 65 Am. Dec. 452, 1856. [Cal.] People v. Hodges, 27 Cal. 340, 1865. [Ind.] Johns v. State, 19 Ind. 421, 81 Am. Dec. 408, 1862. [N. J.] State v. Wyckoff, 31 N. J. L. 65, 1864. [N. Y.] People v. Hall, 57 How. Pr. 342, 1879. [N. C.] State v. Knight, 1 N. C. pt. 2, p. 44 (Taylor, p. 65), 1799. [Tenn.] Riley v State, 9 Humph. 646, 1848. [N. H.] State v. Moore, 26 N. H. 448, 1854. Accessories after the fact, rule the same. Tully v. Com. 13 Bush, 142, 1877. 8See 4 Wendell’s Bl. Com. 305. [Ky.] Hartfield v. Com. 11 Ky. L. Rep. 468, 12 8. W. 309, 1889. [Mass.] Com. v. Pettes, 114 Mass. 307, 1873. [Tex.] Carlisle v. State, 31 Tex Crim. Rep 537, 21 S. W. 358, 1893 § 333] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 421 ing all accessories before the fact principals, the accessory be- fore the fact, or instigator, is triable in the place of perpetra- tion. In conspiracies, by the common law, each conspirator is responsible in any place where any overt act by any of his co- conspirators is done,* as well as in the place where the crime is concocted and started.® It is so, also, according to the English Accessory after the fact—English statu.e—Under the 2 & 3 Ed. VI. an accessory after the fact, it is said, is triable in the county in which he was accessory, but not in that where the principal offense was committed. 1 Hale, P. C. 623; Baron v. People, 1 Park Crim. R. 246, 1854; Tully v. Com. 13 Bush, 142, 1877; though see 1 East, P. C. 361, inti- mating that the trial may be in the place of vicinage, or in that of the principal crime. And to that effect, see State v Grady, 34 Conn. 118, 1866; Cf. State v. Hamilton, 13 Nev. 386, 1878, cited supra, §§ 243, 251, 252, 257. 4Supra, §§239-288, 324; infra, § 1664. [Eng.] Rex v. Ferguson, 2 Starkie, 489. [Mass.] Com. v. White, 123 Mass. 430, 25 Am. Rep. 116, 1877. [Tex.] Ex parte Rogers, 10 Tex. App. 655, 38 Am. Rep. 654, 1881; Russell v. State, 11 Tex. App. 288, 1882. See, also Wharton, Crim. Ev. § 111. 5 United States v. Howell, 4 Inters. Com. Rep 218, 56 Fed. 21, 1892. The prevalent view now is, that a conspiracy in England, even by al- iens, to commit a crime abroad, is cognizable in England. Lord Camp- bell, in his autobiography (Life, 2d ed. 1881, p. 357), says. “I have had a fierce war with Sir Richard Beth- ell, attorney general of the late gov- ernment (Lord Palmerston’s, in 1857), upon the attempt to assas- sinate the Emperor of the French. I had laid down the law of conspiracy as it applied to foreigners residing in England. The government, by his advice, having determined on legisla- tion, to make out the necessity for legislation, Bethell pretended that ‘aliens, by conspiring in England to commit an offense beyond the seas, would not be subject to English law.’ In the discharge of my duty, and by .the advice of Lord Lyndhurst, I ex- posed this misrepresentation. All the law lords, seriatim, agreed with me. Bethel] attacked us all scurrilously in the House of Commons, and I was obliged last night (March 2, 1858), to vindicate myself in the House of Lords.” The opinions of the law lords are given in 148 Hansard, Parl. Deb, 1851-4. The proceedings are noticed by me in detail in an article in the Crim. Law Mag. for March, 1885 Conspiracy indictable at common law.—Reg. v. Bernard, 1 Fost. & F. 240, 1858, which was for participa- tion in the Orsini conspiracy, was under a statute; but Lord Campbell, who tried the case, while holding the statute covered the offense, did not hesitate in the House of Lords to declare that the offense was indict- able at common law. As the de- fendant was acquitted, the question did not receive final judicial revision. Conspiracy to commit crime in foreign country.—During the Civil War in the United States, the Brit- ish government frequently asserted the jurisdiction of its courts to pun- ish persons engaged on British soil in conspiracies to commit crimes in the United States. This was held in reference to the “Greek-fire” at- tempts in Canada, and to the alleged attempts to send infected clothing from Bermuda to New York. See North Am. Rev. for June, 1884, (p. 527), and 6 Cr. L. Mag. 155-190. The question of venue in conspir- acy is further discussed infra, § 1397. Sending dynamite to another state——In accordance with the views of the text, persons sending from one of our states dynamite to injure property or life in England would be indictable in the state from which CRIMINAL LAW. [§ 333 422 common law, with treason.® “If,” said Chief Justice Marshall, in Burr’s Case, “‘an army should be actually raised for the avowed purpose of carrying on an open war against the United States, and subverting their government, the point must be weighed very deliberately, before a judge would venture to de- cide that an overt act of levying war had not been committed by a commissary of purchases who never saw the army, but who, knowing its object, and leaguing himself with the rebels, supplied that army with provisions; or by a recruiting officer, holding a commission in the rebel service, who, though never in camp, executed the particular duty assigned to him.” The same view was taken by the English and Irish courts in dealing with the Fenian prisoners in 1868.7. But whatever may be the tech- nical rule in this respect in particular states, it is clear that where the offenses can be divided into successive stages, any participant may be prosecuted for his particular act in the place of such act.* This, in reference to homicide, is in several states affirmed by statute.® § 334. In continuous offenses, each place of overt act has cognizance. Conflicts of jurisdiction also arise when an offense is begun in one country to take effect in another.’ Supposing a libelous or forged writing be mailed in one place to be published in another, or an explosive package be expressed in one place to be opened in another, or a gun shot in one place und the shot takes effect in another,? which is the place of the the dynamite was sent. See 6 Crim. L. Mag. 155-190. As to libel on foreign sovereign, see infra, § 1934. As to perjury to take effect abroad, see Phillipi v. Bowen, 2 Pa. St. 20, 1845. 6 Infra, § 2139. 7TUnited States Diplom. Cor. 1868, pt. i. pp. 51, 198, 342; Wharton, Confl. L. § 878. 8 Wharton, Crim. Ev. §§ 111-12. Infra, §§ 339-341, 644. Publisher of newspaper alleged to contain criminal libel against officers of the Federal government, mailed to a city in another state, is to be tried for the alleged crime at the place of publication. United States y. Smith, 173 Fed. 227, 1909. 8Tbid. Infra, §§ 339-341. 1The question of conflict of juris- diction generally is discussed by me in 1 Crim. Law Mag. 689; and in the same magazine for March, 1885, 6 Crim. L. Mag. 155. See supra, § 310. 2In United States v. Davis, 2 Sumn. 482, Fed. Cas. No. 14,932, 1837, homicide by shooting a ball from a gun in a United States vessel in a foreign port, killing a person in a foreign ship, was held not to be indictable in a United States court. But this may be sustained on the ground that the shooting as well as the death was in the foreign port. That the place where the shot takes effect is the place of trial. State v. Hall, 114 N. C. 909, 28 L.R.A. 59, 41 Am. St. Rep. 822, 19 S. E. 602, 1892. See supra, § 324. § 334] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 423 commission of the offense? Arguing by analogy from the law which makes the place of performance the seat of a contract,’ it might be said that the place of consummation is the peculiar seat of the crime. So, in fact, under the common Jaw, it has frequently been decided,* though it is settled that a concurrent jurisdiction exists in the place of starting the offense,’ suppos- ing that the offense is indictable in the place of consummation.® The same distinctions apply to obtaining goods by false pre- 8 Wharton, Confl. L. § 397. See in- ne § 1943; Wharton, Crim. Ev. § 113. 4Tbid.; supra, § 325; infra, § 342. [Eng.] Rex v. Girdwood, 1 Leach, C. L. 169, 2 East, P. C. 1120; Rex v. Johnson, 7 East, 65, 1807. [U. S.J] Horner v. United States, 143 U. 8. 207, 36 L. ed. 266, 12 Sup. Ct. Rep. 407, 1892. [Fed.] United States v. Horner, 44 Fed. 677, 1891. [Ky.] Hatfield v. Com. 11 Ky. L. Rep. 468, 12 S. W. 309, 1889. [Mass.] Com. v. Blanding, 3 Pick. 304, 15 Am. Dec. 214, 1824. [N. Y.] People v. Griffin, 2 Barb. 427; People v. Rathbun, 21 Wend. 533, 1839. [Pa.] Com. v. Gillespie, 7 Serg. & R. 469, 10 Am. Dec. 475, 1821. An offer of a bribe sent by mail is triable where received. Re Pal- liser, 186 U. S. 257, 34 L. ed. 514, 10 Sup. Ct. Rep. 1034, 1890. Forged instrument mailed in one county to another; venue of offense is in latter county. State v. Hudson, 13 Mont. 112, 19 L.R.A. 775, 32 Pac. 413, 9 Am. Crim. Rep. 742, 1893. As to abortion, see State v. Mor- row, 40 S. C. 221, 18 S. E. 853, 9 Am. Crim. Rep. 28, 1893. Obtaining under false pretenses— Property out of state—Juriction. A person is not indictable in one state for obtaining money under false pretenses where the property is obtained outside of the state through pretenses made in the state. Connor v. State, 29 Fla. 455, 30 Am. St. Rep. 126, 10 So. 891, 1892; State v. Shaeffer, 89 Mo. 271, 1 S. W. 293, 6 Am. Crim. Rep. 259, 1886. As to libel, see Dana’s Case, 7 Ben. 1, Fed. Cas. No. 3,554. 1873. Also, United States v. Smith, 173 Fed. 227, 1909, holding that where a paper alleged to contain a libel is published at Indianapolis and mailed to Washington, District of Columbia, trial must be held at In- dianapolis. Forgery deed—Out of state to take effect within state—In Rogers v. State, 11 Tex. App. 608, 1881, it was held that a party co-operating out of Texas, in forging a deed to take effect in Texas, is indictable in Texas. See Ex parte Rogers, 10 Tex. App. 655, 38 Am. Rep. 654, 1881. But this does not exclude ju- risdiction of the place of forgery. 5 Infra, § 1942; 2 Hast, P. C. 1120; 4 Wendell, Bl. Com. 305. [Eng.] Rex v. Burdett, 4 Barn. & Ald. 95, 22 Revised Rep. 539, 1820; Perkin’s Case, 2 Lewin, C. C. 150. See Reg. v. Jones, 4 Cox, C. C. 198, 1 Den. C. C. 551, Temple & M. 270, 3 Car. & K. 346, 4 New Sess. Cas. 953, 19 L. J. Mag. Cas. N. S. 162, 14 Jur. 533, 1849. [U. S.] United States v. Worrall, 2 Dall. 384, 1 L. ed. 426, Fed. Cas. No. 16,766, Wharton, St. Tr. 189, 1798. [Ala.] Green v. State, 66 Ala. 40, 41 Am. Rep. 744, 1880 (cited infra, §§ 338-341). [Ark.] State v. Chapin, 17 Ark. 561, 65 Am. Dec. 452, 1857. [Ind.] Johns v. State, 19 Ind. 421, 81 Am. Dec. 408, 1862. Compare: 113. In libels sent by mail, the venue may be laid either in the place of mailing or in the place of reception. See infra, § 1942. Compare: United States v. Smith, 173 Fed. 227, 1909. 6 See Lavina v. State, 63 Ga. 513, 1879; Ex parte Rogers, 10 Tex. App. 655, 38 Am. Rep. 654, 1881; infra, § 342. Wharton, Crim. Ev. § CRIMINAL LAW. [§ 334 424 tenses by letter.” As has been already seen, attempts to commit crimes are cognizable in the place of the attempt,’ and such, also, is the case with conspiracies and accessoryships.? But there can be no question that all parties concerned are also re- sponsible at the place where the offense is consummated.” The mere fact, however, that a forged check has been drawn on a Kansas bank, does not give Kansas jurisdiction when the check was drawn and paid in Missouri.” Since, however, a crime may be organized in one country, ad- vanced in a second, and executed in a third, it is necessary to conceive of the crime in question as broken up into several sections, committed in distinct jurisdictions, and severally cog- nizable in each. That such is the case is the opinion of several eminent jurists,” and such would, no doubt (e. g., under in- dictments for treason or conspiracy, where every overt act would give the local court jurisdiction), under similar circum- stances, be the practice of the English common law. And the 7Infra, § 1473; Reg. v. Jones, 1 Den. C. C 551, Temple & M. 270, 4 Cox, C. C. 198, 3 Car. & K. 346, 4 New Sess. Cas. 953, 19 L. J. Mag. Cas. N. S. 162, 14 Jur. 533, 1849 False pretense in letter to foreign country, securing money in home country—Jurisdiction—In Reg. v. Holmes, L. R. 12 Q. B. Div. 28, 15 Cox, C. C. 348, 49 L. T. N. S. 540, 53 L. J. Mag. Cas. N. S. 37, 32 Week. Rep. 392, 4 Am. Crim. Rep. 591, 1881, it was held that where A post- ed in England a letter to France, containing a false pretense which in- duced the receiver of the letter to send money to A, A was indictable in England for the false pretense. See supra, § 324; State v. House, 55 Towa, 466, 8 N W. 307, 1881. Offender is indictable only in state where money was obtained by false pretense, and not where pretense was written and mailed. See Connor v. State, 29 Fla. 455, 30 Am. St. Rep. 126, 10 So. 891, 1892; State v. Shaef- fer, 89 Mo. 271, 1 S. W. 293, 6 Am. Crim. Rep. 259, 1886. As will presently be more fully seen, where a letter containing a fraudulent nonaccounting of goods by an agent is received by his em- ployers in M county, the latter coun- ty has jurisdiction of the offence. Reg. v. Rogers, 14 Cox, C. C. 22, L. R. 3 Q. B. Div. 28, 47 L. J. Mag. Cas. N. S. 11, 37 L. T. N.S. 478, 26 Week. Rep. 61, 1878. See Reg. v. Treadgold, 14 Cox, C. C. 220, 39 L. T. N. 8. 291, 1878. Where statute makes indictable the offence of “sending and deliver- ing” letters to extort money, the of- fense of sending is triable only im county from which letter is sent. Landa v. State, 26 Tex. App. 580, 10 S. W. 218, 1888. 8Supra, § 233; State v. Terry, 109 Mo. 601, 19 S. W. 206, 1891. 9See infra, § 1664; supra, § 333. 10 Supra, § 325. 11Re Carr, 28 Kan. 1, 1882. See also State v. Shaeffer, 89 Mo. 271, 1S. W. 298, 6 Am. Crim. Rep. 259, 1886. 12 Cited Wharton, Confl. L. § 927; P. Voet, xi. c. i. note 8; Ortolan, No. 951; Jul. Clarus, Sent. v. § fin. qu. 32, note 9; Piitter. § 98. See reasoning of court in Pearson v. McGowran, 3 Barn. & C. 700, 5 Dowl. & R. 616, 1825; State v. Hatch, 91 Mo. 568, 4 8S. W. 502, 1887. 13 Infra, 1664. § 336] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 425 same reasoning applies to all offenses which are carried on in two or more jurisdictions. At the same time it must be kept in mind that an attempt to commit in a foreign state an act lawful in such state, though unlawful in the place of the at- tempt, may not be punishable in the latter state.” The jurisdiction in cases of embezzlement is hereafter special- ly noticed. ¥ § 335. —Continuing nuisance. When a nuisance is cre- ated in one jurisdiction and operates in another jurisdiction, the courts of both jurisdictions, according to the better opinion, have cognizance of the offense,’ though in some states it is held that where the injury is exclusively to real estate, the redress must be sought in the jurisdiction of the real estate.? Bigamy in this relation is hereafter discussed.* § 336. —Adjustment of punishment in such cases. It has been held that in such cases, in adjusting the sentence, the grade of the consummated offense will be taken into con- sideration, and a punishment adequate to the whole imposed, allowing for what may have been inflicted by other tribunals.’ 14Infra, § 842. See Wharton, Confl. §§ 482-489, 925. To this effect are decisions ren- dered in 1856 by the Supreme Court at Berlin. See Bar, § 142, note 3a; and see infra, § 1943; Wharton, Crim. Ev. § 113. 15 Infra, § 1287. 1Diversion of water made in one state, which does injury in another, is cognizable in the former state. See [U. S.] Rundle v. Delaware & R. Canal Co. 14 How. 80, 14 L. ed. 335, 1852; Mississippi & M. R. Co. v. Ward, 2 Black, 485, 17 L. ed. 311, 1862 [Fed.] Foot v. Edwards, 3 Blatchf. 310, Fed. Cas. No. 4,908, 1857; Stillman v. White Rock Mfg. Co. 3 Woodb. & M. 538, Fed. Cas. No. 13,446, 1849. [Ill.] Pilgrim v. Mellor, 1 Ill. App. 448, 1878. [Iowa] State v. Smith, 82 Iowa, 423, 48 N. W. 727, 1891. [Mass.] Manville Co. v. Worcester, 188 Mass. 89, 52 Am. Rep. 261, 1884. [N. H.] State v. Lord, 16 N. H. 357, 1844; Worster v. Winnipiseogee Lake Co. 25 N. H. 525, 1853. [N. J.] State v. Babcock, 30 N. J. L. 29, 1864. [Ohio] Thayer v. Brooks. 17 Ohio, 489, 49 Am. Dec. 474, 1848. [Pa.] Oliphant v. Smith, 3 Penr. & W. 180, 1831; Com. v. Lyons, 1 Clark (Pa.) 497, 1843. [Tex.] Armendiaz v. Stillman, 54 Tex. 623, 1880 (where water was diverted in Texas, and the injury done in Mexico). [Wis.] Re Eldred, 46 Wis. 530, 1 N. W. 175, 1879. See remarks of Judge Story, in Slack v. Walcott, 3 Mason, 508, Fed. Cas. No. 12,932, 1825. 2[Ala.] Howard v. Ingersoll, 17 Ala. 780, 1849. [Tll.] Eachus v. II- linois & M. Canal Co. 17 Ill. 534, 1856. [Me.] Wooster v. Great Falls Mfg. Co. 39 Me. 246, 1854 [N. Y.] Watts v. Kinney, 23 Wend. 484, 6 Hill, 82, 1840. 8 Infra, § 2016. As to jurisdiction in bastardy pro- ceedings, see [Kan.] Moore v. State, 47 Kan. 772, 17 L.R.A. 714, 28 Pac. 1072, 1892 [Md.] Sheay v. State, 74 Md. 52, 21 Atl. 607, 1891. [Pa.] Com. v. Lloyd, 141 Pa. 28, 21 Atl. 411, 1891. 1 Wharton, Confl. L. § 920. CRIMINAL LAW. [§ 336 426 But on this point there is some conflict. Foreign jurists have, and not without reason, held that when an illegal transaction has been carried on in several territories, each territory can punish only for that segment of the crime committed within its own bounds.? In the United States this is a question of growing importance, as will be elsewhere seen.® § 337. Offenses in carriages and boats. In England, by statute, wherever a felony or misdemeanor is begun in one county and completed in another, the venue may be laid in either county,’ and offenses committed when traveling may be laid in any county through which the passenger, carriage, or vessel passes. A statute which provided that where an offense is com- mitted on a railroad car passing through the state, and it cannot readily be determined in what county the offense was committed, the offender may be tried in any county through which such car passed, was held constitutional in Illinois.* Embezzlement or larceny can, therefore, in England be tried in any county into which the spoils of the offense are brought.2 And similar statutes exist in most of the United States, and have been held constitutional.* § 338. In larceny thief is liable wherever goods are brought. As will be hereafter more fully seen, when goods are stolen in one country and brought by the thief into an- other country, the latter country, by the English common law, has no jurisdiction. In the United States, however, it has been As to concurrent jurisdictions, see W. 100, 1905; State v. Gorman, 191 particularly Wharton, Pl. & Pr. §§ 441 et seq. 2Ibid. citing Carpzov, Prac. iii. qu. 110, n. 28; Piitter, p. 203; Holt- zendorff, 1870, p. 548. As to Massachusetts, see special statute. 3 Infra, § 348; Wharton, Crim. PI. & Pr. §§ 441, 453. 17 Geo. IV. chap. 64, § 13; 1 Vict. chap 36, § 37. 2Watt v. People, 126 Il. 9, 1 L.R.A. 403, 18 N. E. 340, 1888. In Missouri a similar statute has been held to be unconstitutional. See State v. Anderson, 191 Mo. 134, 90 S. W. 95, 1905; State v. Clarke, 191 Mo. 148, 90 S. W. 100, 1905; State v. Meyers, 191 Mo. 149, 90 S. Mo. 150, 90 S. W. 100, 1995. 3See infra, § 1287; Harrington v. State, 31 Tex. Crim. Rep. 577, 21 S. W. 356, 1893. 4See People v. Dowling, 84 N. Y. 478, 1881; Powell v. State, 52 Wis. 217, 9 N. W. 17, 1881. 1Butler’s Case, 13 Coke, 55; 3 Co. Inst. 113; Rex v. Prowes, 1 Moody, C. C. 349, 1833; Reg. v. Debruiel, 11 Cox, C. C. 207, 1869. See infra, § 1169; and see Wharton, Crim. Ev. § 111. Embezzlement—Letters posted in one county to another—Jurisdic- tion—In an English case decided in 1875, it was the prisoner’s duty as country traveler to collect moneys and remit them at once to his em- § 338] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 427 ruled to be within the constitutional province of each state to pass statutes giving the place of arrest, into which the goods are so brought, jurisdiction.? And as between the several United States, this jurisdiction has been ruled in many states to exist at common law.® ployers. On the 18th April he re- ceived money in county Y; on the 19th and 20th he wrote to his em- ployers from Y, not mentioning that he had received the money; on the 21st April he wrote to them again from Y, thereby intending them to believe that he had not received the money. The letters were addressed to and received by his employers in county M, and written and posted in county Y. It was held that the prisoner might be tried in county M for the offense of embezzling the money. Reg. v. Rogers, L. R. 3 Q. B. Div. 28, 14 Cox, C. C. 22, 47 L. J. Mag. Cas. N. S. 11, 37 L. T. N.S. 473, 26 Week. Rep. 61, 1878. See Com. v. Uprichard, 3 Gray, 434, 63 Am. Dec. 762, 1854. 2[Ala.] State v. Seay, 3 Stew. (Ala.) 123, 20 Am. Dec. 66, 1830; LaVaul v. State, 40 Ala. 44, 1873. [Ark.] State v. Johnson, 38 Ark. 568, 1881. [Conn.] State v. Ellis, 3 Conn. 185, 8 Am. Dec. 175, 1819; State v. Cummings, 33 Conn. 260, 265, 89 Am. Dec, 208, 1866. [Kan.] McFarland v. State, 4 Kan. 68, 1867. [TL] Myers v. People, 26 Ill. 173, 1861. Iowa, 479, 1868. [Me.] State v. Douglas, 17 Me. 193, 35 Am. Dec. 248, 1840; State v. Stimpson, 45 Me. 608, 1858; State v. Underwood, 49 Me. 181, 77 Am. Dec. 254, 1858. [Md.] Cummings v. State, 1 Harr. & J. 340, 1808; Worthington v. State, 58 Md. 403, 42 Am. Rep. 338, 1882. [Mass.] Com. v. Andrews, 2 Mass. 14, 3 Am. Dec. 17, 1806; Com. v. Rand, 7 Met. 475, 41 Am. Dec. 455, 1844; Com. v. Beaman, 8 Gray, 497, 1857; Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89, 1869; Com. v. White, 123 Mass. 430, 25 Am. Rep. 116, 1877; Com. v. Parker, 165 Mass. 526, 43 N. E. 499, 1896. [Miss.] Watson v. State, 36 Miss. 593, 1859. [Mo.] Hemmaker v. State, 12 Mo. 453, 51 Am. Dec. 172, 1849; State v. [Iowa] State v. Bennett, 14° In other states, such jurisdiction is Williams, 35 Mo. 229, 1862; State v. Butler, 67 Mo. 61, 1877; State v. Hatch, 91 Mo. 568, 4 S. W. 502, 1887. [Mont.] State v. Kief, 12 Mont. 92,15 L.R.A. 722, 29 Pac. 654, 1892. [N. Y.] People v. Burke, 11 Wend. 129, 1834. [S. C.] State v. Bryant, 9 Rich. L. 113, 1855; State v. Hill, 19 S. C. 435, 1883. [Tenn.] Simpson v. State, 4 Humph. 456, 1844. [Tex.] Hanks v. State, 13 Tex. App. 289, 1882; McKenzie v. State, 32 Tex. Crim. Rep. 568, 40 Am. St. Rep. 795, 25 S. W. 426, 1894. [Vt.] State v. Bartlett, 11 Vt. 650, 1839. Compare: [Neb.] Van Buren v. State, 65 Neb. 223, 91 N. W. 201, 14 Am. Crim. Rep. 430, 1902. [N. C.] State v. Brown, 2 N. C. (1 Hayw.) 100, 1 Am. Dec. 548, 1794; State v. Buchanan, 130 N. C. 660, 41 S. E. 107, 1902. [Va.] Strouther v. Com. 92 Va. 789, 53 Am. St. Rep. 852, 22 S. E. 852, 1895. See notes 1 Am. Dec 550; 3 Am. Dec. 22; 8 Am. Dec. 176; 20 Am. Dec. 74; 38 Am. Dec. 250; 41 Am. Dec. 457; 51 Am. Dec. 174; 40 Am. St. Rep. 802; 8 Eng. Rul. Cas. 149. In Cummins v. State, 12 Tex. App. 121, 1882, a statute providing that a thief bringing stolen goods into Tex- as from another state shall be in- dictable in Texas, where the offense was larceny in such other state, was assumed to be constitutional, but it was held that in such case the law of the latter state should be proved as a fact. 3[Conn.] State v. Ellis, 3 Conn. 185, 8 Am. Dec. 175, 1819. [Ill.] Myers v. People, 26 Ill. 173, 46 Am. Dec. 790, 1801. [Iowa] State v. Bennett, 14 Iowa, 479, 1862. [Ky.] Ferrill v. Com. 1 Duv. 158, 1873; Thomas v. Com. 12 Ky. L. Rep. 903, 15 S. W. 861, 1891. [Me.] State v. Underwood, 49 Me. 181, 77 Am. Dec. 254, 1860. [Md.] Cummings v. State, 1 Harr. & J. 340, 1808; CRIMINAL LAW. [§ 338 428 held not to exist without a statute;* and statutes conferring the jurisdiction have been held to be constitutional.’ By severai courts it has been held that when the goods are stolen in Canada, and brought into a state, the state courts have jurisdiction; ° but this view is rejected in Massachusetts and Ohio,” as well as in those states which hold that at common law there is no lia- bility for a larceny in a sister state. In Connecticut the same tule is applied to receivers of stolen goods.° § 339. In homicide place of wound and, by statute, place of death, may have jurisdiction; jurisdiction of place of wound. By the early English common law, the place in which the mortal stroke was given had jurisdiction in cases of homicide. As there seemed, however, to be doubts in cases in which the blow was in one jurisdiction, and the death in an- other, the statute of 2 & 3 Edward VI. chap. 24 was passed, the effect of which, though very inartificially drawn, is to give the Worthington v. State, 58 Md. 403, 42 Am. Rep. 338, 1881. [Mass.] Com. v Andrews, 2 Mass. 14, 3 Am. Dee. 17, 1807; Com. v. Holder, 9 Gray, 7, 1857. [Miss.] Watson v. State, 36 Miss. 593, 1863. [Mo.] State v. Williams, 35 Mo. 229, 1862. [Nev.] State v. Newman, 9 Nev 48, 16 Am. Rep. 8, 1874. [Ohio] Ham- ilton vy. State, 11 Ohio, 435, 1842. [Or.] State v. Johnson, 2 Or. 115, 1871. [S. C.] State v. Hill, 19 S. C. 435, 1883 [Wis.] Graves v. State, 12 Wis. 591, 1861. See also infra, § 1168. 4[Ga.] Lee v. State, 64 Ga. 203, 37 Am. Rep. 67,,1880. [Ind.] Beal v. State, 15 Ind. 378, 1860; Kiser v. Woods, 60 Ind. 5388, 1878. [La.] State v. Reonnals, 14 La. Ann. 276, 1859; State v. McCoy, 42 La. Ann. 228, 7 So. 330, 1890. [Neb.] People v. Loughridge, 1 Neb. 11, 93 Am. Dec. 325, 1872. [N. J.] State v. Le- Blanch, 31 N. J. L. 82, 1865. [N. Y.] People v. Gardner, 2 Johns. 477, 1807; People v. Schenck, 2 Johns. 479, 1807. [N. C.] State v. Brown, 2N C. (1 Hayw.) 100, 1 Am. Dec. 548, 1814. [Pa.] Simmons v. Com. 5 Binn. 617, 1813. [Tenn.] Simpson v. State, 4 Humph. 456, 1843. The property must be brought into the state of proceess with felonious intent. See State v. Johnson, 38 Ark. 568, 1882. 5[Ala.] State v. Adams, 14 Ala 486, 1847; La Vaul v. State, 40 Ala. 44, 1867. [Ind.] Beal v. State, 15 Ind. 378, 1860. [Kan.] McFarland v. State, 4 Kan. 68, 1865. [Mich.] People v. Williams, 24 Mich. 156, 9 . Am Rep. 119, 1871. [Mo.] State v. Butler, 67 Mo. 59, 1878. [Tenn.] Simpson v. State, 4 Humph. 461, 1843. As to New York statute, see Peo- ple v. Burke, 11 Wend. 129, 1833. 6Infra, § 1168. [Me.] State v. Underwood, 49 Me. 181, 77 Am. Dec. 254, 1861. [Mo.] State v. Williams, 385 Mo. 229, 1862. [Vt.] State v. Bartlett, 11 Vt. 650, 1838. 7Com. v. Uprichard, 3 Gray, 440, 63 Am. Dec. 762, 1855; Com. v- White, 123 Mass. 430, 25 Am. Rep.. _ 116, 1877; Stanley v State, 24 Ohio “St. 166, 15 Am. Rep. 604, 2 Am. Crim. Rep. 349, 1873. 8 [Ind.] Beal v. State, 15 Ind. 378, 1860. [Neb.] People v. Loughridge, 1 Neb. 11, 93 Am. Dec. 325, 1872 [N. C.J] State v. Brown, 2 N. C. (1 Hayw.) 100, 1 Am. Dec. 548, 1814. [Tenn.] Simpson v. State, 4 Humph. 456, 1843. 9State v. Ward, 49 Conn. 429, 1881. § 340] IN WHAT COURTS INDICTMENTS aRE COGNIZABLE. 429 place of death jurisdiction. This statute has been held to be part of the common law in several states in this country; but even where it is in force, it does not, according to the better opinion, devest the jurisdiction of the place where the blow was struck.” § 340. —Jurisdiction of place of death. Unless by stat- ute, such jurisdiction has been generally held not to exist. 1That this jurisdiction is concur- rent, see 1 Hale, P. C. 426; 1 East, P. C. 361; Reg. v. Sattler, Dears. & B.C. C. 525, 7 Cox, C. C. 431, 27 L. J. Mag. Cas N. S. 48, 4 Jur. N. S. 98, 6 Week. Rep. 227, 1856. See supra, § 310. 2Rex v. Hargrave, 5 Car. & P. 170, 1831, where it was held that the blow was the offense; United States v. Guiteau, 1 Mackey, 498, 537, 47 Am. Rep. 247, 1881, where the same position was taken where the blow was in the District of Co- lumbia, and the death in New Jer- sey (overruling United States v. Bladen, 1 Craneh, C. C 548, Fed. Cas. No. 14,605, 1823; United States v. Rolla, 2 Am. L. J. 638); Green v. State, 66 Ala. 40, 41 Am. Rep. 744, 1880 (where it was held that Alaba- ma had jurisdiction, independently of the statute, when the blow was given in Alabama, and the death occurred in Georgia); Steerman v. State, 10 Mo. 508, 1846; State v. Blunt, 110 Mo. 322, 19 S. W. 650, 1892; Riley v. State, 9 Humph. 646, 1848; and see Robbins v. State, 8 Ohio St. 131, 1858; State v. Gessert, 21 Minn. 369, 1875; People v. Gill, 6 Cal. 637, 1856, to the same effect. See also supra § 310. In New Jersey, in 1878, it was held that when a mortal blow is given within the jurisdiction of that state, and the death occurs in Pennsylvania, New Jersey has jurisdiction by stat- ute. Hunter v. State, 40 N. J. L. 495, 1878, in which case the court left the common-law question open, resting the decision on the New Jersey statute. Maine doctrine —In State v. Kelly, 76 Me. 331, 49 Am. Rep. 620, 5 Am. Crim. Rep. 343, 1884, it was held that where the defendant died in the state of Maine from a wound in- flicted on him in a United States fort, the state of Maine did not have jurisdiction. “The modern and more rational view,” said the court, “is that the crime is committed where the unlawful act is done, and that the subsequent death, while it may be sufficient to confer juris- diction, cannot change the locality of the crime. How then can a state court take jurisdiction? Clear- ly it cannot, unless when a mortal blow is inflicted in a fort, and the person struck or wounded dies out of the fort, the crime is regarded as committed where the person dies; and this, as we have already stated, is a doctrine which we cannot sus- tain.” The decision in United States v. Guiteau, 1 Mackey, 498, 47 Am. Rep. 247, 1881, it should be added, has the implied sanction of the Supreme Court of the United States. In that court it has been the practice to review sentences in themselves erro- neous by a writ of habeas corpus. This writ was applied for after the sentence in Guiteau’s Case, in a petition to Judge Bradley, who, af- ter examining the briefs on both sides, refused the writ. Judge Brad- ley was the only judge of the Su- preme Court. then in Washington, but others were accessible, and there is little doubt that it was understood by the defendant’s counsel that by no one of them would the writ be granted. 11 Hawk. P. C. 23, § 18; 31, § 18; Starkie, Crim. Pl. 2, 3, note, where the common-law doubts on this subject, which led to the statute of Edward VI., are explained on the ground that juries were, by the old law, required to be witnesses of the material facts of the case; which condition was, in some cases, sup- 430 § 341. —In Federal courts. CRIMINAL LAW. [§ 341 In the Federal courts it is held that the place of death has no such jurisdiction (without a statute), unless such place is jurisdiction is now conferred by statute.’ the place of the wound.’ The In several states, statutes giving jurisdiction to the place of death (the wound being extraterritorial) have been held constitutional. In New Jersey, in 1859, in a case where the constitutional power to pass such a statute did not on the record arise, it was declared that there is no common-law jurisdiction to this effect, that the New Jersey statute did not cover the case of manslaughter, and that an indictment charging a felonious assault and battery in New York, and that the party injured came into and died in New Jersey, charged no crime in New Jersey.* In Massachusetts, in a case in 1869, the defendants , one a citizen of Maine and the other a British subject, were convicted in the county of Suffolk of the manslaughter of a man who died within the county of injuries inflicted by them on board a British merchant ship on the high seas. The Massachusetts statute under which the de- fendants were convicted provided that “if a mortal wound be given, or other violence or injury inflicted, or poison is admin- istered, on the high seas, or on land either within or without the posed to be satisfied by bringing the dead body to the county of the wound and having the trial there. In England, the statutes 8 & 9 Geo. IV., giving jurisdiction to England in cases of deaths occurring in England from wounds inflicted abroad has been held not to apply to the case of a foreigner dying in England from wounds received on w foreign vessel on the high seas. Reg. v. Lewis, Dears. & B. C. C. 182, 7 Cox, C. C. 277, 26 L. J. Mag. Cas. N. S. 104, 3 Jur. N. 8. 525, see Atty.- Gen. v. Kwok-a-Sing, L. R. 5 P. C. 179; Reg. v. Anderson, L. R. 1 C. C. 164, 38 L. J. Mag. Cas. N. 8. 12, 19 L. T. N. S. 400, 17 Week. Rep. 208, 11 Cox, C. C. 198, 8 Eng. Rul. Cas. 1, 1869; cited supra, §§ 312, 320, 322; Reg. v. Seberg, L. R. 1 C. GC. 264, 39 L. J. Mag. Cas. N. 8. 133, 22 L. T. N. S. 523, 18 Week. Rep. 935, 11 Cox, C. C. 520, 1869. See also supra, § 310. As to common law, see Co. Lit. 74b; 3 Co. Inst. 48; 1 East, P. C. 361; 1 Hale, P. C. 426; 2 Hale, P. C. 20, 163. 1United States v. M’Gill, 4 Dall. 427, 1 L. ed. 894, 1 Wash. C, C. 463; Fed. Cas. No. 15,676, 1806; United States v. Armstrong, 2 Curt. C. C, 446, Fed. Cas. No. 14,467, 1857. 2U. S. Stat. 1825, chap. 65, 1857, chap. 116; see Rev. Stat. 1043-1047. See 2 Fed. Stat. Ann. 358-360; 3 Fed. Stat. Ann. 99, 100, U. S. Comp. Stat. 1901, pp. 725-727. In Re Doig, 4 Fed. 193, 1879, it was held that in a case of negligent homicide, the place of the negligent misconduct must have jurisdiction. 8 [Mich.] Tyler v. People, 8 Mich. 326, 1860. [Miss.] Riggs v. State, 26 Miss. 51, 1855; Turner v. State, 28 Miss. 684, 1856. [N. J.] State v. Carter 27 N. J. L. 499, 1874. [Va.] Com. v. Linton, 2 Va. Cas. 205, 1819. me State v. Carter, 27 N. J. L. 500, 9. § 342] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE, 431 limits of the state, by means of which death ensues in any county, such offense may be prosecuted in the county where the death happened.” It was held by the Supreme Court that the statute was constitutional and the conviction right.® § 342. Law of place of performance may determine indictability. An agreement to do an act in a state where such an act is not unlawful is not made unlawful by the fact that the agreement is unlawful in the place where it is made.’ It is otherwise when the lex fori pronounces the contract illegal.’ But, as we have seen, the place of performance has co-ordinate jurisdiction of the offense, no matter where the offender may have been at the time of such performance.’ Thus, in addition to illustrations elsewhere given, it may be noticed that the place where a forged document is uttered has jurisdiction of the of- fense of uttering;* and when there are indications coupling the forger with the utterer, has jurisdiction of the offense of forging the uttered document.’ It has also been held that there is jurisdiction in liquor cases in the place where the liquor is delivered to the vendee or his agent.° And this is in conformity with the rule already stated that a place where a crime takes effect has concurrent jurisdiction of the crime.” 5Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89, 1869. Defendants foreigners, and crime committed out of the jurisdiction (as it was by the rule in Guiteau’s Case); it is hard to see how the statute making the crime cognizable in Massachusetts can be held con- stitutional. See Walls v. State, 32 Ark. 565, 1878; infra, § 2016. 1Supra, §§ 334, 335, and cases there cited; Wharton, Confl. L. §§ 398 et seq.; Richardson v. Rowland, 40 Conn. 565, 1873. 2Grell v. Levy, 16 C. B. N. S. 73, 10 Jur. N. S. 210, 9 L. T. N.S. 721, 12 Week. Rep. 378, 1864. 8 Supra, § 323. See Com. v. Eggle- ston, 128 Mass. 408, 1880. 4Lindsey v. State, 38 Ohio St. 507, 1882. As to jurisdiction over forgery in Texas under Penal Code, see Mason v. State, 32 Tex. Crim. Rep. 95, 22 5. W. 144, 408, 1893. 5Infra, § 954. 6 State v. Hughes, 22 W. Va. 743, 1883. Compare: Pilgreen v. State, 71 Ala. 368, 1881; Bryant v. State, 89 Tenn. 581, 15 S. W. 650, 1891. 7 See supra, §§ 316, 324; Wharton, Confl. L. §§ 871-921. See remarks of Sir J. F. Stephen, on Keyn’s Case, supra, § 312. Massachusetts doctrine—It has been held in Massachusetts that a statute prohibiting the sale of game in certain seasons does not apply to game killed outside of the State. Com. v. Hall, 128 Mass. 410, 35 Am. Rep. 387, 1880. A contrary view has been taken of a similar statute in Illinois. Mag- ner v. People, 97 Ill. 320, 1880, citing Whitehead v. Smithers, L. R. 2 CG. P. Div. 553, 46 L. J. Mag. Cas, N. 8. 234, 37 L. T. N. 8. 378. Sale of tickets of lottery of an- other state.—In People v. Noelke, 94 N. Y. 1387, 46 Am. Rep. 128, 1883, it was held that statutes prohibiting 432 CRIMINAL LAW. [§ 343 § 343. Sovereign first prosecuting the offense ab- sorbs it. As is elsewhere more fully shown, the same offense may be in one aspect cognizable by one sovereign, and in an- other aspect by another sovereign.’ On the same principle an offense may in one aspect be cognizable by the state in its sov- ereignty, and in others by a municipal corporation.? Where a particular offense as an entirety is cognizable by two sovereigns, the first sovereign that takes possession of the defendant, and undertakes the prosecution of the offense, absorbs the case, as a general rule, which action, if bona fide and complete, is a bar to the action of the other sovereign.* But as to offenses partly the sale of tickets in lotteries or- ganized in other states are consti- tutional. At common law in prosecution for illegal sale of lottery tickets, it is no defense that the lottery was au- thorized by the laws of another state. Com. v. Dana, 2 Met. 329, 1807, and cases cited infra, §§ 1776 et seq. Betting, etc. on horse race.—In State v. Lovell, 39 N. J. L. 463, 1877, it was held that to bet or hold stakes on horse races to be run out of the state is indictable in New Jersey. Letter inciting to perjury—Writ- ten in another state—A letter writ- ten in one state, inciting N to com- mit perjury in another state, renders the writer indictable in the latter ‘state, although the contents of the letter were communicated to the ‘person to whom it was addressed by an agent who participated in the offense. The writer of the letter is, under these circumstances, triable in ‘tthe state to which the letter was sent. Com. v. Smith, 11 Allen, 243, 1866. An information at common law for conspiracy between the captain and purser of a man-of-war, for plan- ning and fabricating false vouchers ‘to cheat the Crown (which planning ‘and fabrication were done upon the high seas), has been held in England ‘triable in Middlesex, upon proof there of the receipt by the commis- sioners of the navy of the false vouchers transmitted thither by one of the conspirators through the medi- um of the post, and the application there of a third person, a holder of one of such vouchers (a bill of ex- change), for payment, which he there received. Rex v. Brisac, 4 East, 164, 7 Revised Rep. 551, 8 Eng. Rul. Cas. 138, 1804; see infra, § 1664. 1Supra, §§ 3807, 330; Wharton, Crim. Pl. & Pr. §§ 441, 453. [U. S.] United States v. Marigold, 9 How. 560, 13 L. ed. 257, 1850; Coleman v. Tennessee, 97 U. S. 509, 24 L. ed. 1118, 1878. [La.] State v. Augus- tine, 29 La. Ann, 119, 1871. [Or.] State v. Bergman, 6 Or. 341, 1875. 2 Wharton, Crim. Pl. & Pr. § 440. 3 Wharton, Crim. Pl. & Pr. §§ 441, 442, 453. [U.S.] Taylor v. Taintor, 16 Wall. 366, 21 L. ed. 287, 1872. [Mo.] State v. Horn, 70 Mo. 466, 35 Am. Rep. 437, 1879. See [Tenn.] Sizemore v. State, 3 Head, 26, 1859. Prior conviction and sentence by military court.—In Coleman v. Tenn- essee, 97 U. S. 509, 24 L. ed. 1118, 1878, it was held that a prior convic- tion by a United States military court in Tennessee, 1865, of a soldier in the Federal army, of murder, with a sentence that he should be hung, which sentence, however, was never executed, devested the state court of jurisdiction. Of a subsequent prose- eution in the state court, Field, J., giving the opinion of the Supreme Court of the United States, thus speaks: “The judgment and con- viction in the criminal court should have been set aside and the indict- ment quashed for want of jurisdic- tion. Their effect was to defeat an act done under the authority of the § 344] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE. 433 against one and partly against another sovereign, if the de- fendant is convicted and sentenced under one sovereign, the better opinion, as we have seen, is that both have jurisdiction; and in such case the punishment inflicted under the first prose- cution is to be taken into account in adjusting the sentence under the second prosecution.* 8. Courts-martial and military courts. § 344. Martial law is law for an army; military law is law imposed by the army on a subjected country. United States, by a tribunal of of- ficers appointed under the law en- acted for the government and regu- lation of the army in time of war, and whilst that army was in a hos- tile and conquered State The judg- ment of that tribunal at the time it was rendered, as well as the per- son of the defendant, were beyond the control of the state of Tennessee. The authority of the United States was then sovereign and their juris- diction exclusive. Nothing which hhas since occurred has diminished that authority or impaired the ef- ficacy of that judgment. In thus holding, we do not call in question the correctness of the general doc- trine asserted by the supreme court of Tennessee, that the same act may, in some instances, be an offense against two governments, and that the transgressor may be held liable to punishment by both when the. ‘punishment is of such a character that it can be twice inflicted, or by either of the two governments if the punishment, from its nature, can be only once suffered. It may well be that the satisfaction which the trans- gressor makes for the violated law of the United States is no atone- ment for the violated law of Ten- nessee. But here there is no case presented for the application of the doctrine. The laws of Tennessee with regard to offenses and their punishment, which were allowed to remain in force during its military occupation, did not apply to the de- fendant, as he was at the time a Crim. L. Vol. L—28. soldier in the army of the United States, and subject to the articles of war.” Prisoner in charge of bondsmen— Federal process.—In James’s Case, 5 Crim. L. Mag. 216, it was held by the United States district court for the western district of Missouri, that a prisoner in the custody of his bondsmen on a state charge cannot be taken from such custody by Fed- eral process, or for other kinds of offense against the Federal govern- ment. 4 Wharton, Crim. Pl. & Pr. §§ 441, 442, 453; Supra, § 336. [Fed.] Unit- ed States v. Cashiel, 1 Hughes, 552, Fed. Cas. No. 14,744, 1873. [Md.] United States v. Amy, 14 Md. 152 note. [Mass.] Com. v. Tenney, 97 Mass. 50, 1867. [Va.] Jett v. Com. 18 Gratt. 953, 1862. Former jeopardy—Conviction, etc., in another sovereignty.—‘‘Conviction and punishment of an accused in one sovereignty is no bar to his convic- tion and punishment in another in which the offense was originally com- mitted.” Phillips v. People, 55 Ill. 433, 1870, citing. [Md.] United States v. Amy, 14 Md. 152, note. [Mass.] Com v, Andrews, 2 Mass. 14, 3 Am. Dec. 17, 1807; Com. v. Green, 17 Mass. 540-547, 1820. [N. C.] State v. Brown, 2 N. C. (1 Hayw.) 100, 1 Am. Dec. 548, 1814. See, also, Wharton, Crim. Pl. & Pr. ut supra. In Marshall v. State, 6 Neb. 120, 29 Am. Rep. 363, 1877, it was in- timated that when the penalty in- 434 CRIMINAL LAW. [§ 344 The subject of courts-martial and military courts falls more properly, so far as it concerns their practical relations, in an- other volume.’ The positions there taken may be summed up as follows: (1) Martial law is law imposed on an army as such, governing it and its antagonists under arms, and is en- forced by courts of officers under the authority of the commander in chief. It is not inconsistent with this principle that spies are tried by court-martial. A spy puts himself more or less completely in the position of a member of the army within whose lines he is penetrating; and he cannot, therefore, dis- pute the jurisdiction of the court to which he has subjected him- self. Military law, on the other hand, is the law imposed by the commander in chief of an army on a province which he has subjugated. While it is in force it is supreme, not only in military, but in civil affairs, so far as concerns nonbelligerents. A military governor, for instance, does not interfere with the affairs of the army. These are governed by the commander in chief through his proper military machinery. The commander in chief, on the other hand, does not, after a military governor is appointed, interfere in the affairs of nonbelligerents in the subject province. Courts-martial are constructed under fixed principles of selection of officers of suitable rank assisted by a judge advocate. Military courts are selected in any way the military commander of the province may determine, and may consist, more or less entirely, of civilians learned in the law. Courts-martial are conducted in subordination to martial law, as an international system. Military courts are conducted in subordination to such a system of jurisprudence as the policy of the occupying forces prescribes, incorporating as much of the civil law of the conquered province as may be most convenient. Martial law excludes police control of civilians except so far as they interfere in military affairs. With the police control of civilians, military law is chiefly concerned. Courts-martial are permanent, and run in parallel lines with civil courts; are not only consistent with, but essential to, constitutional and liberal government; and are subject, so far as their right to im- prison and punish is concerned, to the jurisdiction of the judi- flicted was in full satisfaction for 1 Wharton, Crim. Pl. & Pr. §§ 439, the whole offense, the second prose- 979, 997. cution might be barred. § 345] IN WHAT COURTS INDICTMENTS ARE COGNIZABLE, 435 ciary of the land.? Military law for the time being absorbs the local civil law and deposes the local judiciary, except so far as the military governor may allot to them authority. Mar- tial law is permanent, cosmopolitan, and administered by courts special to each case. Military law is special, provincial, limited in duration to the period of military occupancy, yet usually administered while it lasts by a permanent court, hearing all cases of litigation that arise.® Such is the primary meaning of martial law, as distinguished from military law. The term “martial law,’ however, is used in a secondary sense, to denote the law imposed by the supreme authority of the country for the preservation of order in peri- ods of insurrection or other great public emergency.* § 345. Judgments of, may be a bar. (2) The judgment of a military court, having de facto authority in a province under military control, is a bar to further prosecution for the same offense in civil tribunals in the same country.’ Whether the judgments of courts-martial are a bar depends upon the question whether by the local applicatory civil law such courts have jurisdiction.? 2 The King’s bench has always as- sumed this position in England (e. g., in Governor Wall’s Case); and in this country a similar supremacy has been maintained by the Federal courts. It is no answer to this posi- tion, that the action of courts in granting writs of habeas corpus in reference to persons under martial control has been held inoperative. This is in subordination to the law of the land as pronounced by the Supreme Court of the United States, which, in all Federal matters, in- volving the control of the Federal Army, is supreme. See Re Davison, 21 Fed. 618, 1884. 3 See Wharton, Cr. Pl. & Pr, § 979, note; Wharton, Am. Law, §§ 37, 579. 4See Wharton, Am. Law, §§ 37, 38. 1See Coleman v. Tennessee, 97 U. S. 509, 24 L. ed. 1118, 1878, cited supra, § 343, Tennessee v. Hibdom, 23 Fed, 795, 1885. Wharton, Crim. Pl. & Pr. §§ 485, 439. On the topic of the text see Benet, Military Law; De Hart, Military Law; Finlason, Martial Law; Po- land’s Military Dig. 2 Belligerents, when acting without authority of law, are subjected to penal dicipline. See infra, § 329. They may defend on ground of neces- sity or superior order. See supra, §§ 126, 329; infra, § 433. Seizure by them of goods is not larceny. See infra, § 1128. The New York Penal Code of 1882 does not, by its own exceptions, ap- ply to any power conferred by law on military authorities to punish offenders. Military and naval officers are sub- ject to the law of the land. See in- fra, § 558. See cases in Wharton, Crim. Pl. & Pr. § 439, CHAPTER XI. CORPUS DELICTI, GENERALLY. § 346. Introductory. § 347. Definition of. § 348. Elements of. § 349. Proof of. § 350. Modes of proof. § 351. —Direct evidence. § 352. —Circumstantial or presumptive evidence, § 353. —In homicide cases. § 354. —In other crimes. § 355. —Sufficiency of. § 356. Order of proof. § 357. Confession—Sufficiency of. § 358. —English rule. § 359. —Extrajudicial confession, § 360. —Proof aliunde. § 361. —Corroboration. § 362. Extent of proof—Clear and satisfactory. § 363. —Beyond a reasonable doubt. § 346. Introductory. The corpus delicti, or the fact that a crime has been committed, is an important element entering into the trial of every person charged with the commission of a crime. In theory, if not in practice, the prosecution is re- quired to establish the fact that a crime has been committed before it can either (1) introduce evidence to show that the accused committed the crime, or (2) require the accused to show that he did not do so.’ In other words, the corpus delicti must be established by satisfactory evidence before the accused can be put upon his defense. This question of the proof of the corpus delictt will hereafter be discussed in connection with each of the various crimes, and especially, and more fully, in the chapter dealing with homicide.? There are some general rules and principles which apply alike to this question in each of 1See infra, § 349, 2See infra, § 434. 436 ; § 347] CORPUS DELICTI, GENERALLY. 437 the various crimes, and these general rules and principles are all that is sought to be given in this chapter. § 347. Definition of. The phrase corpus delicti means, literally, the body of the transgression charged, the essence of the crime or offense committed,’ the existence of the substantial fact that a crime or offense has been committed.* When ap- plied to any particular crime or offense, it means that such crime or offense has actually been committed by someone. It is made up of two elements: (1) That a certain result has been produced, as that a man has died, or a building has been burned, or a piece of property is not in the owner’s posses- sion; (2) that someone is criminally responsible for the result ; * é. g., on a charge of homicide it is necessary to prove that the person alleged in the indictment to have been killed is (1) actually dead, as by producing his dead body; (2) that his death was caused or accomplished by violence, or the direct criminal agency of some other human being.* The precise application, force, and scope of the phrase corpus delictt have not been and cannot be embodied in a general rule applicable in all cases; but the idea embodied in the phrase is in nowise obscure.® The basis of the corpus delicti is the fact that an offense or crime has in reality been committed.® It signifies, in the logical sense of that term, the fact of the 1[Fed.] Flower v. United States, 53 C. C. A. 271, 116 Fed. 241, 1902. [Ala.] White v. State, 49 Ala, 344, 1873. [Cal.] People v. Dick, 37 Cal. 277, 1869; People v. Simonsen, 107 Cal. 345, 40 Pac. 440, 1895; People v. Tapia, 131 Cal. 647, 63 Pac. 1001, 1901. [Iowa] State v. Millmeier, 102 Iowa, 692, 72 N. W. 275, 1897. [Mont.] State v. Calder, 23 Mont. 504, 59 Pac. 908, 1899. See Wharton, Crim. Ev. § 325; 3 Enc. Ev. p. 660; 2 Words & Phrases, 1624. Corpus—As used in reference to property refers to the res, that is, to the thing itself. Jackson v. Lude- ling (Jackson v. Vicksburg & T. R. Co.) 99 U. 8. 513, 25 L. ed. 460, 1878. —Of railroad, includes the road- way, embankments, superstructure, and equipment. Ibid. —Of a devise or bequest, the prin- cipal, that is, the body of the estate devised and bequeathed, from which the income arises. Keyser v. Mitchell, 67 Pa. 473, 1871; Earp’s Appeal, 75 Pa. 119, 1874. —Of a homicide, the body of the person murdered. White v. State, 49 Ala, 344, 1873. The criminal act and defendant’s agency in its production constitute the corpus delicti. State v. Dickson, 78 Mo. 438, 1883. 2 People v. Dick, 37 Cal. 277, 1869; State v. Calder, 23 Mont. 504, 59 Pac. 9038, 1899. 3 State v. Millmeier, 102 Iowa, 692, 72 N. W. 275, 1897. 4 Ibid. 5 State v. Potter, 52 Vt. 33, 1879. 6 [Miss.] Pitts v. State, 43 Miss. 480, 1870. [N. Y.] People v. Pal- mer, 109 N. Y. 110, 4 Am. St. Rep. 423, 16 N. E. 529, 7 Am. Crim. Rep. 399, 1888. [Va.] Goldman v. Com. 100 Va. 865, 42 S. E. 923, 1902. 438 CRIMINAL LAW. [§ 347 specific injury or loss, and may also include the element of someone’s criminal agency as the cause or source of the loss or injury.” The phrase corpus delictt sometimes means the dead body of the deceased, but the use of the phrase in this sense is an abuse of the words; the true meaning being the body of the offense or the crime committed; that is, the substantial fact that a crime has been committed by someone.® § 348. Elements of. The essential elements of the corpus delicti are (1) the existence of a certain state of fact or result forming the basis of the criminal act charged, and (2) the existence of a criminal act or agency or cause in bringing the state of fact into existence;? e. g., that a man has died, a build- 7 People v. Ranny, 153 Mich. 293, 19 L.R.A.(N.S.) 443, 116 N. W. 999, 1908; State v. Dickson, 78 Mo. 438, 1883. 8 State v. Dickson, supra, 1883. 1[Fed.] United States v. Wil- liams, 1 Cliff. 5, Fed. Cas. No. 16,707, 1858. [Ark.] Cavaness v. State, 43 Ark. 331, 1884. [Cal.] People v. Jones, 81 Cal. 565, 1867; People v. Jones, 123 Cal. 65, 55 Pac. 698, 1898. [Colo.] McBride v. People, 5 Colo. App. 91, 37 Pac. 953, 1894. [Iowa] State v. Millmeier, 102 Iowa, 692, 72 N. W. 275, 1897. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [Miss.] Pitts v. State, 43 Miss. 472, 1870. [Mo.] State v. Scott, 39 Mo. 424, 1867; State v. Dickson, 78 Mo. 488, 1883. [Mont.] State v. Pepo, 23 Mont. 473, 59 Pac. 721, 1899. [NN. Y.] Ruloff v. People, 18 N. Y. 179, 1858; People v. Schry- ver, 42 N. Y. 6, 1 Am. Rep. 480, 1870; People v. Bennett, 49 N. Y. 137, 1872; People v. Place, 157 N. Y. 584, 52 N. E. 576, 1899; People v. Benham, 160 N. Y. 402, 55 N. E. 11, 1899. [N. C.] State v. Williams, 52 N. C. (7 Jones, L.) 446, 78 Am. Dec. 248; State v. Williams, 75 N. C. 734, 1 Am. Crim. Rep. 56, 1860. [Ohio] State v. Leuth, 3 Ohio C. D. 48, 5 Ohio C. C. 94, 1890. [Pa.] Com, v. Cutaiar, 5 Pa. Dist. R. 403, 1896. [Tex.] Lovelady v. State, 14 Tex. App. 545, 1883, 17 Tex. App. 287, 1884; Walker v. State, 14 Tex. App. 609, 1888; Schulze v. State, 28 Tex. App. 316, 12 S. W. 1084, 1889; Jackson v. State, 29 Tex. App. 458, 16 S. W. 247, 1891; Josef v. State, 34 Tex. Crim. Rep. 446, 30 S. W. 1067, 1895; Anderson v. State, 34 Tex. Crim. Rep. 546, 31 S. W. 673, 1895; Conde v. State, 35 Tex. Crim. Rep. 98, 60 Am. St. Rep. 22, 34 8. W. 286, 1895; Little v. State, 39 Tex. Crim. Rep. 654, 47 S. W. 984, 1898; Gay v. State, 40 Tex. Crim. Rep. 242, 49 S. W. 612, 1899; Gay v. State, 42 Tex. Crim. Rep. 450, 60 S. W. 771, 1901. [Va.] Smith v. Com. 21 Gratt. 809, 1871; Johnson v. Com. 29 Gratt. 811, 1878. [Wis.] Williams v. State, 61 Wis. 281, 21 N. W. 56, 1884. Lord Chief Justice Hale says: “I would never convict any person of murder or manslaughter, unless the fact were proved to be done, or, at least, the body found dead.” 2 Hale P. C. 290. Lord Stowell, in the famous case of Evans v. Evans, 1 Hagg. Consist. Rep. 105, said: “When a criminal fact is ascertained, presumptive proof may be taken to show who did it,—to fix the criminal, having there an actual corpus delicti; but to take presumption to swell an equivocal and ambiguous fact into a criminal act would, I take’ it, be an entire misapprehension of the doctrine of presumptions.” Lord Stowell’s and Lord Hale’s general principles, above referred to, apply to the first element in the corpus delicti. State v. Williams, 52 N. C. (7 Jones, L.) 446, 78 Am. § 348] CORPUS DELICTI, GENERALLY. 439 ing has been burned, particular property is no longer in its owner’s possession, and that some person wrongfully brought about this state of fact.? Some of the cases go a step further and require (3) that defendant’s criminal agency in the pro- duction of the state of fact shall also be established;* but this is manifestly going too far in regard to the requirement of proof of facts and things necessary to constitute a corpus delicti, and the sounder view is that proof of the corpus delicti does not include proof of the identity of the accused as the perpetrator of the crime* Thus, evidence that a murder has been committed establishes the corpus delicti, whether the act was done by the accused or by another person.® It requires no argument to make it plain that a man may be dead, and may have come to his death through or by reason of the crim- inal agency of some human being, yet that the accused may not be in any way involved therein. In such a case we have a legal corpus delictt,—a person dead through the criminal agency ef another. It will be shown hereafter that the general rule Dec. 248, 251; State v. Williams, 75 however, seems to require proof of N. C. 134, 1 Am. Crim. Rep. 56, the criminal agency of the accused 1860. 2State v. Millmeier, 102 Iowa, 692, 72 N. W. 275, 1897. 3[Colo.] McBride v. People, 5 Colo. App. 91, 37 Pac. 593, 1894. [Mo.] State v. Dickson, 78 Mo. 438, 1883. [Nev.] State v. Cardelli, 19 Nev. 319, 10 Pac. 433, 1886. See also [Fed.] United States v. Williams, 1 Cliff. 5, Fed. Cas. No. 16707, 1858. [Cal.] People v. Jones, 31 Cal. 565, 1867. [Miss.] Pitts v. State, 43 Miss. 472, 1870. [Mo.] State v. Scott, 39 Mo. 424, 1867; State v. Shackelford, 148 Mo. 493, 50 8S. W. 105, 1890. [N. Y.] Ruloff v. People, 18 N. Y. 179, 1858; Peo- ple v. Bennett, 49 N. Y. 137, 1872. [Tex.] Lovelady v. State, 14 Tex. App. 560, 1883, 17 Tex. App. 287, 1883; Jackson v. State, 29 Tex. App. 458, 16 S. W. 247, 1891; Josef v. State, 34 Tex. Crim. Rep. 446, 30 S. W. 1067, 1895; Little v. State, 39 Tex. Crim. Rep. 654, 47 S. W. 984, 1898. [Va.] Smith v. Com. 21 Gratt. 813, 1871; Johnson v. Com. 29 Gratt. 811, 1878. The language of other decisions, as a part of the corpus delicti. See State v. Dickson, 78 Mo. 438, 1883; State v. Shackelford, 148 Mo. 498, 50 S. W. 105, 1899; Lovelady v. State, 14 Tex. App. 560, 1883, 17 Tex. App. 287, 1883; Jackson v. State, 29 Tex. App. 458, 16 S. W. 247, 1891; Josef v. State, 34 Tex. Crim. Rep. 446, 30 S. W. 1067, 1895; Little v. State, 39 Tex. Crim. Rep. 654, 47 S. W. 984, 1898. 4[N. Y.] People v. Palmer, 109 N. Y. 110, 4 Am. St. Rep. 423, 16 N. E. 527, 7 Am. Crim, Rep. 399, 1888; People v. Benham, 160 N. Y. 402, 55 N. E. 11, 1899. [Ohio] State v. Wehr, 9 Ohio, S. & C. P. Dec. 478, 6 Ohio N. P. 345, 1899. [Tex.] White v. State, 40 Tex. Crim. Rep. 370, 50 S. W. 705, 1899; Sullivan v. State, 40 Tex. Crim. Rep. 633, 51 S. W. 375, 1899. See also Carlton v. People, 150 Ill. 181, 40 Am. St. Rep. 346, 37 N. E. 244, 9 Am. Crim. Rep. 62, 1894; State v. Davis, 48 Kan. 1, 28 Pac. 1092, 1892. 5State v. Calder, 23 Mont. 504, 59 Pac. 903, 1899. 440 CRIMINAL LAW. [§ 348 requires that the proof of the corpus delicti shall first be made by the prosecution, before the defendant can be put upon his defense on a charge of having committed the crime.® § 349. Proof of. Before a conviction can rightfully be had on a criminal charge, the prosecution must show (1) the corpus delicti,) (2) that it was produced by a criminal act or 6 See infra, §§ 349, 356. 1[Cal.] People v. Jones, 31 Cal. 565, 1867; People v. Alviso, 55 Cal. 230, 1880. [Ga.] Tatum v. State, 1 Ga. App. 778, 57 S. E. 956, 1907. [N. Y.] People v. Schryver, 42 N. Y. 1, 1 Am. Rep, 480, 1870. First essential fact to be proved is the corpus delicti, and this must be established beyond a reasonable doubt. Tatum y. State, 1 Ga. App. 778, 57 8. E. 956, 1907; see infra, § 363. A conviction very seldom occurs without direct proof of the corpus delicti, either by eyewitness of the homicide or by the subsequent dis- covery of the dead body; yet there may be exceptions, where corpus delicti may be proved circumstantial- ly or inferentially, e. g., as where the body is consumed by fire, or boiled in potash, or dissolved in acids, ren- dering it impossible that it should ever be produced. [Cal.] People v. Alviso, 55 Cal. 230, 1880. [Ga.] Bines v. State, 118 Ga. 320, 68 L.R.A. 33, 45 S. E. 376, 12 Am. Crim. Rep. 205, 1903. [Nev.] State v. Cardelli, 19 Nev. 319, 10 Pac. 433, 1886. [N. Y.] People v. Beckwith, 108 N. Y¥. 67, 15 N. E. 53, 1888. [Tex.] Lovelady v. State, 14 Tex. App. 548, 1883; Walker v. State, 14 Tex. App. 609, 1883. The corpus delicti is necessary to be first proved in order to establish the commission of a crime. [Ala.] White v. State, 49 Ala. 344, 1873. [Cal.] People v. Simonsen, 107 Cal. 345, 40 Pac. 440, 1895. [Del.] State v. Hand, 1 Marv. (Del.) 545, 41 Atl. 192, 1894. [Vt.] State v. Potter, 52 Vt. 33, 1879. Producing the dead body of a per- son does not establish the corpus delicti in a prosecution for homicide. People v. Simonsen, 107 Cal. 345, 40 Pac. 440, 1895. Such production merely establishes the corpus. Ibid. Concurrent elements of the corpus delicti are (1) the death, (2) that the death was produced by criminal agency. Lovelady v. State, 14 Tex. App. 545, 1883. Confession of defendant, without proof aliunde, cannot establish the corpus delicti. McBride v. People, 5 Colo. App. 91, 37 Pac. 5938, 1894. See infra, § 953. Proof of corpus delicti—What is sufficient.—Proof (1) that accused inflicted wounds, and (2) that death followed, does not establish the corpus delicti, where it also appears that death was not the result of the wounds. McBride v. People, supra. To prove corpus delicti in a charge of homicide, it must be shown (1) that the person alleged to have been murdered is dead, (2) that he came to his death from the effect of a wound, (3) that the wound was un- lawfully inflicted, and (4) that the accused was implicated in inflicting the wound. Ibid. This doctrine is thought to re- quire more than is necessary to establish the legal corpus delicti. See [Fed.] Flower vy. United States, 53 C. C. A. 271, 116 Fed. 241, 1902. [Colo.] McBride v. People, 5 Colo. App. 91, 37 Pac. 953, 1894. [Mont.] State v. Calder, 23 Mont. 504, 59 Pac. 903, 1899. The corpus delictt in a case of murder may be proved by (1) pro- duction of the dead body, or the identification of the body or a portion of it, and (2) by proof that deceased met his death by violence, and not by accident or suicide. Lovelady v. State, 14 Tex. App. 545, 1883; Gay v. State, 42 Tex. Crim. Rep. 450, 60 S. W. 771, 1901. § 349] CORPUS DELICTI, GENERALLY. 441 agency,” (3) that the accused did the criminal act, or set in motion the criminal agency, or sustains responsible complicity therewith.’ Mere proof of conduct exhibiting satisfactory indi- cations of guilt is not sufficient to warrant a conviction, unless there be satisfactory evidence that the particular crime charged. has been committed.* A criminal charge against an accused involves both the commission of the offense and his guilty agency in connection therewith, and both these propositions must be fully established before the jury. A charge against one accused of crime necessarily involves these two elements in the proof,® and both of these propositions. must be fully es- tablished to the satisfaction of the jury.’? Thus, in a prose- cution for murder, proof of the corpus delicti involves the 2[Ala.] White v. State, 49 Ala. 344, 1873. [Mo.] State v. Dickson, 78 Mo. 438, 1883. [Mont.] State v. Calder, 23 Mont. 504, 59 Pac. 903, 1899. In arson mere proof that a build- ing was destroyed by fire does not establish the corpus delicti. People v. Simonsen, 107 Cal. 345, 40 Pac. 440, 1895. Proof that some crime has been actually committed must always be shown to entitle to a conviction of the accused; that is, there must be a corpus delicti. State v. Hand, 1 Marv. (Del.) 545, 41 Atl. 192, 1894. 3[Cal.] People v. Jones, 31 Cal. 565, 1867; People v. Besold, 154 Cal. 863, 97 Pac. 871, 1908. [Colo.] McBride v. People, 5 Colo. App. 91, 87 Pac. 953, 1894. [Mo.] State v. Scott, 39 Mo. 424, 1867; State v. Dickson, 78 Mo. 438, 1883. [Mont.] State v. Calder, 23 Mont. 504, 59 Pac. 908, 1899. [N. Y.] Ruloff v. People, 18 N. Y. 179, 1858. [Tenn.] Younkins v. State, 2 Coldw. 219, 1865. [Tex.] Lovelady v. State, 14 Tex. App. 545, 1883; Willard v. State, 27 Tex. App. 386, 11 Am. St. Rep. 197, 11 S. W. 453, 1889. There must be proof (1) not only of the corpus delicti, but also (2) of defendant’s guilty agency. Flower v. United States, 53 C. C. A. 271, 116 Fed. 241, 1902. See Wharton, Crim. Ev. § 325. Want of proof of the corpus delictit cannot be supplied by proof of the extrajudicial confession of the accused. People v. Besold, 154 Cal. 363, 97 Pac. 871, 1908. 4Tyner v. State, 5 Humph. 383, 1844, 5 Sanders v. State, 167 Ala. 85, 28 L.R.A.(N.S.) 536, 52 So. 417, 1910; Anderson v. State, 24 Fla. 139, 3 So. 884, 1888; Lambright v. State, 34 Fla. 564, 16 So. 582, 9 Am. Crim. Rep. 383, 1894. But each of these elements is not required to be established by sepa- rate and independent proof. The proof establishing the corpus de- licti may be that which also con- nects the accused with the perpetra- tion of the crime. George v. United States, 1 Okla. Crim. Rep. 307, 97 Pac. 1052, 100 Pac. 46, 1908. 6State v. Cardelli, 19 Nev. 319, 10 Pac. 433, 1886. 7People v. Jones, 31 Cal. 565, 1867; Anderson v. State, 24 Fla. 139, 3 So. 884, 1888; Lambright v. State, 34 Fla. 564, 16 So. 582, 9 Am. Crim. Rep. 383, 1894. But in those cases where the ac- cused in his testimony before the jury, given in his own behalf, un- equivocally establishes the fact that the offense has been committed, it is immaterial that the state failed to establish the corpus delicti by other and independent evidence. Kaye v. United States, 100 C. C. A. 567, 177 Fed. 147, 1910. 442 CRIMINAL LAW. [§ 349 establishment (1) that the person named is dead, (2) that he came to his death through the criminal act or agency of another human being; but such proof does not involve the establishment of the killing by the accused; this requires the further proof (3) of the agency of the person accused in bringing about the death.® § 350. Modes of proof. Proof of the corpus delicti in- volves (1) establishment of a criminal act, (2) defendant’s agency or responsibility for the act;* and the mode of this proof is largely the same as the mode of the proof of any other fact that is subject to judicial investigation.” The order in which the points or propositions requisite to prove the corpus delicti and the defendant’s responsibility are to be established will be discussed in a subsequent section.? The facts form- ing the basis of the offense, that is, the corpus delicti, must be proved * either (1) by direct testimony,’ or (2) by presump- tive or circumstantial evidence; * and where the evidence is of the latter class, it must be of the most cogent or irresistible kind.” In one or the other of these methods the essential fact or facts must be established beyond a reasonable doubt.* But while the proof should be clear and distinct, it is not necessary that it should be direct and positive.® § 351. —Direct evidence. In the establishment of all or any of the elements of a corpus delicti,’ direct and positive proof of the facts constituting the various elements, or any of them, is of course, the best evidence that can be produced, and, if clear and satisfactory, is sufficient to entitle the prosecution to introduce evidence of defendant’s guilty connection therewith. In some of the states it is held that the elements constituting the legal corpus delicti, that is, (1) the state of facts constituting the basis of the prosecution, (2) the criminal agency of some 8 State v. Calder, 23 Mont. 504, Ibid. State v. Potter, 52 Vt. 33, 59 Pac. 903, 1899. 1879. See infra, § 352. 1State v. Dickson, 78 Mo. 438, _ 7State v. Cardelli, 19 Nev. 319, 10 Pac. 438, 1886; State v. Williams, 1883. 52 N. ©. (7 Jones, L.) 446, 78 Am. 2 ? 9 dee ee ee ee Dee, 245) Stakes. Willan, Te 8 of ge eg C. 134, 1 Am. Crim. Rep. 56, 1860. ee infra, § 356. 8 State v. Cardelli, 19 Nev. 319, 4See authorities supra, § 349. 10 Pac. 433, 1886. 5 State v. Cardelli, 19 Nev. 319, 9 Thid. 10 Pac. 433, 1886. See infra, § 351. 1See supra, § 348 § 352] CORPUS DELICTI, GENERALLY. 443 other human being in bringing them about, must be established by direct evidence ;* but the general rule, and what is regarded to be the better practice, is that the elements may be established by circumstantial or presumptive evidence where such evidence is so cogent and irresistible as to establish the facts beyond a reasonable doubt in the mind of the jury.® § 352. —-Circumstantial or presumptive evidence. While it is essential to a conviction that the corpus delict shall have been proved,’ it is not essential that this be done by full and direct and positive evidence.? Like any other fact the subject of judicial investigation, the corpus delicti may be proved by evidence which is probable and presumptive,—that is, circumstantial,—as well as by direct evidence,* if satisfac- 2Ruloff v. People, 18 N. Y. 179, 1858; People v. Bennett, 49 N. Y. 137, 1872. 3State v. Dickson, 78 Mo. 488, 1883. See authorities infra, § 352. 1See ante, § 349. 2State v. Cardelli, 19 Nev. 319, 10 Pac. 433, 1886. See supra, § 351. 3[Fed.] United States v. Wil- liams, 1 Cliff. 5, Fed. Cas. No. 16,707, 1858; Flower v. United States, 53 ©. C. A. 271, 116 Fed. 241, 1902. [Ala.] Winslow v. State, 76 Ala. 42,5 Am. Crim. Rep. 43, 1884; Ryan v. State, 100 Ala. 94, 14 So. 868, 1893; Perry v. State, 155 Ala. 93, 46 So. 470, 1908. [Cal.] People v. Jones, 123 Cal. 65, 55 Pac. 698, 1898. [Fla.] Gantling v. State, 41 Fla. 587, 26 So. 737, 1899. [Ga.] Sanders v. State, 118 Ga. 329, 45 S. E. 365, 1903; Miles v. State, 129 Ga. 589, 59 S. E. 274, 1907. [Idaho] State v. Keller, 8 Idaho, 699, 70 Pac. 1051, 1902. [Til] Lipsey v. People, 227 Ill. 364, 81 N. E. 348, 1907. [Ind.] Griffiths v. State, 163 Ind. 555, 72 N. E. 563, 1904. [Iowa] State v. Keeler, 28 Iowa, 551, 1870. [Mass.] Com. v. Williams, 171 Mass. 461, 50 N. E. 1035, 1898. [Mo.] State v. Dickson, 78 Mo. 438, 1883; State v. Coats, 174 Mo. 396, 74 8. W. 864, 1908; State v. Vinton, 220 Mo. 90, 119 S. W. 370, 1909. [Neb.] Sullivan v. State, 58 Neb. 796, 79 N. W. 721, 1899. [Nev.] State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530, 1879; State v. Loveless, 17 Nev. 424, 30 Pac. 1080, 1883; State v. Cardelli, 19 Nev. 319, 10 Pac. 433, 1886; Re Kelly, 28 Nev. 491, 498, 83 Pac. 223, 1905. [N. Y.] People v. Badgley, 16 Wend. 53, 1836. [Ohio] State v. Knapp, 70 Ohio St. 380, 71 N. E. 705, 1 A. & E. Ann. Cas, 819, 1904. [Pa.] Com. v. Shef- fer, 218 Pa. 437, 67 Atl. 761, 1907. [R. I.] State v. Jacobs, 21 R. I. 259, 43 Atl. 31, 1899. [Tenn.] Carey v. State, 7 Humph. 499, 1847. [Tex.] Lovelady v. State, 14 Tex. App. 545, 1883; Willard v. State, 27 Tex. App. 386, 11 Am. St. Rep. 197, 11 S. W. 453, 1889; Kugadt v. State, 38 Tex. Crim. Rep. 681, 44 S. W. 989, 1898; Gray v. State, 44 Tex. Crim. Rep. 477, 72 S. W. 858, 1903. [Utah] State v. Bates, 25 Utah, 1, 69 Pac. 70, 1902. [Vt.] State v. Davidson, 30 Vt. 377, 73 Am. Dec. 312, 1858; State v. Blay, 77 Vt. 56, 58 Atl. 794, 1904. See notes 4 Am. St. Rep. 431; 11 Am. St. Rep. 200; 68 L.R.A. 76. Corpus delicti may be proved by circumstantial evidence, if it be shown beyond a reasonable doubt. Curran v. State, 12 Wyo. 553, 76 Pac. 577, 1904. Flight as a corroborating circum- stance is not sufficient to prove the corpus delicti. Huey v. State, 7 Ga. App. 398, 66 S. E. 10238, 1910. 444 CRIMINAL LAW. [§ 352: tory to the understanding and conscience of the jury beyond a reasonable doubt; * but such evidence, where relied upon, must: be strong and cogent, and leave no room for a reasonable doubt.6 The admission of proof of corpus delicti by presump- tive evidence of any kind is a manifest qualification of the rule laid down by Lord Chief Justice Hale ® and Lord Stowell; 7 but the admission of such evidence is contended for by Benthan,® Judge Best,? Baron Rolfe,” Wharton,” and Wills,” because,, “until it pleases Providence to give us means beyond those our present faculties afford, of knowing things done in secret, we must act upon presumptive proof, or leave the worst crimes. unpunished.” ¥ The better rule is thought to be that either of the elements. necessary to establish the corpus delicti,* or both of them, may be proved by circumstantial evidence, and this is the rule: that seems to be sustained by the weight of authority; but where presumptive or circumstantial evidence is relied upon to: establish the corpus delicti, it should be acted upon with great caution, especially in those cases where public excitement cre- 4[Miss.] Pitts v. State, 43 Miss. 472, 1871. [Mo.] State v. Dickson, 78 Mo. 438, 1878. [N. C.] State v. Williams, 52 N. C. (7 Jones, L.) 446, 78 Am. Dec. 248; State v. Williams, 75 N. C. 134, 1 Am. Crim. Rep. 56, 1860. [Tex.] Willard v. State, 27 Tex. App. 386, 11 Am. St. Rep. 197, 11 S. W. 4538, 1889. [Vt.] State v. Davidson, 30 Vt. 377, 73 Am. Dee, 312. See infra, § 363. 5 [Eng.] Reg. v. Cheverton, 2 Fost. & $F. 838; Rex v. Hindmarsh, 2 Leach, C. D. 569. [Fed.] United States v. Williams, 1 Cliff. 5, Fed. Cas. No. 16,707, 1858. [Ind.] Stock- ing v. State, 7 Ind. 326, 1855; Mc- Culloch v. State, 48 Ind. 109, 1 Am. Crim. Rep. 318, 1874. [Kan.] State v. Winner, 17 Kan. 298, 1876. [Mo.] State v. Dickson, 78 Mo. 438, 1899. [N. Y¥.] Ruloff v. People, 18 N. Y. 179, 1858; People v. Bennett, 49 N. Y. 137, 1872. [N. C.] Rippey v. Miller, 46 N. C. (1 Jones, L.) 479, 62 Am. Dec. 177, 1854 (rule applies in criminal, but not civil, cases) ; State v. Williams, 52 N. C. (7 Jones, L.) 446, 78 Am. Dec. 248; State v. Williams, 75 N. C. 184, 1 Am. Crim. Rep. 56, 1860. [Tex.] Wilson v. State, 43 Tex. 472, 1875; Brown v.. State, 1 Tex. App. 154, 1876. As to circumstantial evidence and. amount necessary to constitute pre- sumptive proof, see note 62 Am. Dec. 181, et seq. 62 Hale, P. C. 290. 7 Evans v. Evans, 1 Hagg. Con-. sist Rep. 105. 8Jeremy Benthan says: ‘Were it not so, a murderer, to secure him- self with impunity, would have no more to do but to consume or de- compose the body by fire, by lime, or by any of the known chemical menstrua, or to sink it in an un- fathomable part of the sea.” See: 3 Smith, Jud. Ev, 234, 8Opinion in Rex v. Burdett, 4 Barn. & Ald. 95. 10 Best, Ev. p. 333, note. 11 See post, § 954. 12 Wills, Circumstantial Ev. 204. 13 State v. Williams, 52 N. ©. (7 Jones, LL.) 446, 78 Am. Dec. 248; State v. Williams, 75 N. C. 134, Lb Am. Crim. Rep. 56, 1860. 14See supra, § 348. § 353] CORPUS DELICTI, GENERALLY. 445 ates an untisual tendency to exaggerate facts and draw rask in- ferences. § 353. —In homicide cases. It seems now pretty gener- ally held that cireumstantial evidence is admissible to establish the corpus delicti in a trial for murder,’ but that it must be 15 Pitts v. State, 43 Miss. 472, 1871. 1[Eng.] Rex v. Clewes, 4 Car. & P. 221. [Cal.] People v. Ah Fook, €4 Cal. 380, 1 Pac. 347, 1883. [Ga.] ‘Thomas v. State, 67 Ga. 460; ‘Thomas v. State, 90 Ga. 437, 16 8. E. 94, 9 Am. Crim, Rep. 158, 1881. (1. "Hronek v. People, 134 Til. 139, 8 L.R.A. 837, 23 Am. St. Rep. 652, 24.N. E. 861, 1890. [Ky.] Johnson v. Com. 81 Ky. 325, 4 Am. Crim. Rep. 140, 1883. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [Mo.] State v. Brooks, ‘92 Mo. 542, 5 S. W. 257, 330, 1887. [Nev.] State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530, 1897. [N. Y.] People v. Beckwith, 108 N. Y. 67, 15 N. E. 53, 1888; People v. Deacons, 109 N. Y. 378, 16 N. E. 676, 1888. {N. C.] State v. Williams, 52 N. C. (7 Jones, L.) 446, 78 Am. Dec. 248; State v. Williams, 75 N. C. 134, d. Am. Crim. Rep. 56, 1860. [Or.] State v. Moran, 15 Or. 262, 14 Pac. 419, 1887. [Tex.] Powell v. State, 13 Tex. App. 244, 1882; Gay v. State, 42 Tex. Crim. Rep. 450, 60 S. W. 771, 1901. [Vt.] State v. Potter, 52 Vt. 37, 1879. See note 7 L.R.A.(N.S.) 184. Dead body found with a knife thrust across the throat and breast, sufficient to have caused death, and with no signs of accident or suicide about it, is sufficient to prove the corpus delictt of murder. Thomas v. State, 67 Ga. 460, 1881. Stabbing of deceased by defendant being shown, a physician was called, who testified that he was not able to say whether the wounds were mortal or not, as he did not make a thorough examination, but that one of the wounds was dangerous, and there was probability of its being fatal. This evidence, in connection with the fact that within four days the man died, was sufficient to justi- fy the jury in arriving at the con- clusion that he died of the wounds. People v. Ah Fook, 64 Cal. 380, 1 Pac. 347, 1883. Finding of dead body of person, with the unmistakable marks of a murder committed, is sufficient ad- ditional proof to warrant the con- viction of a defendant on his own confession, under Code Crim. Proc. N. Y. § 395, providing that the con- fession of a defendant shall not be sufficient to warrant his conviction “without additional proof that the crime charged has been committed.” People v. Deacons, 109 N. Y. 374, 16 N. E. 676, 1888. Evidence that deceased was ap- proaching defendant’s cabin the last time when he was seen alive; that defendant was soon’ afterwards found burning meat, which he said was pork rinds; that the defendant fled from his cabin; that a body cut in pieces and partially burned, an ax covered with hair the color of that of deceased, and clothes like his, were found in the cabin; that de- fendant made voluntary expressions indicating that deceased met his death in the cabin,—is sufficient to support a verdict of oe People v. Beckwith, 108 N. Y. 67, 15 N. E. 53, 1888. Evidence of coroner and doctor that the body of deceased was taken to the morgue, where an inquest was held, and stating his name, is ad- missible to prove the fact of death. State v. Moran, 15 Or. 262, 14 Pac. 419, 1887. Evidence; making, procuring, etc., of dynamite, with intent to use the same for unlawful destruction of the lives of certain persons, is suf- ficiently proved by the fact that de- fendant had such explosives in his possession and kept them concealed, and on afferent occasions threatened to take the lives of such persons, and said he would throw bombs at them wherever he might meet them. 446 CRIMINAL LAW. [§ 353 strong and cogent.” Chancellor Walworth, however, says: ‘One rule which is never to be departed from is that no one should be convicted of murder upon circumstantial evidence, unless the body of the person supposed to have been murdered has been found, or there is clear and irresistible proof that such person is actually dead.”* In New York it is held that in trials for murder the people must establish by positive evidence either (1) the corpus delicti or (2) the criminal agency producing it; and that after either is thus established, the other may be shown by circumstantial evidence.* In such a prosecution the corpus delictt is established by proof of the finding of the body of a Hronek v. People, 134 Ill. 139, 8 L.R.A. 837, 28 Am. St. Rep. 652, 24 N. E. 861, 1890. Identified by reason of some pe- culiarity in the teeth, by dentist who had treated them. Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. Body of dead man, after twenty- three years, identified by his widow by peculiarity about the teeth. Rex v. Clewes, 4 Car. & P. 221. —Charred remains, when a miss- ing woman is supposed to have been murdered, may be identified as hers by showing that certain hairpins found with the bones were such as she had been in the habit of wear- ing in her hair for two or three years before. State v. Williams, 52 N. C. (7 Jones, L.) 446, 78 Am. Dec. 248, 1860. Identity of a badly charred body as that of the Chinaman alleged to have been killed was sufficiently established to warrant a conviction by testimony that the house where the body was found was used by him as a Chinese washhouse; that the washhouse was being used as usual on the day of the homicide; that some human being therein was killed, and that the house was con- sumed by fire after the homicide; it further appearing that there were usually but three persons in the house, and that the person in ques- tion had never been seen since the destruction of the house, whereas both of the other occupants had been seen and were alive. State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530, 1879. See note 7 L.R.A.(N.S.) 184. Wound given in malice, but not in its nature mortal, but from which being neglected or mismanaged, the party died; this neglect and mis- management will not excuse the party inflicting it, but he will be held guilty of the murder, unless he can make it clearly appear that the maltreatment of the wound, or the medicine administered to the patient, or his own misconduct, and not the wound itself, was the sole cause of death. So, if the deceased were ill of a disease apparently mortal, and his death was hastened by injuries ma- liciously inflicted by the accused, this proof will support an indictment for murder, for an offender shall not apportion his own wrong. Powell v. State, 13 Tex. App. 244, 1882. Where parts of the body were found, and marks and _ indications pointed to the identity of the de- ceased, the question is properly met by evidence, and the guilt of the accused is properly submitted to the jury. People v. Beckwith, 108 N. Y. 67, 15 N. E. 53, 1888. 2State v. Williams, 52 N. C. (7 Jones, L.) 446, 78 Am. Dec. 248; State v. Williams, 75 N. ©, 134, 1 Am. Crim. Rep. 56, 1860. 3 People v. Videto, 1 Park. Crim. Rep. 603, 1825, 4Ruloff v. People, 18 N. Y. 179, 1858; People v. Bennett, 49 N. Y. 187, 1872 (by divided court). § 355] CORPUS DELICTI, GENERALLY. 447 human being under such circumstances as indicate that the death or killing was felonious, and not by accident or suicide.® But the proof of the identity of the dead body must be estab- lished by evidence outside of the death of the party alleged; the remains of the deceased, or a portion of them, must be suf- ficiently identified to establish the death of the party.® § 354. —In other crimes. The corpus delicti in all other offenses and crimes may likewise be established by circumstan- tial evidence, but the proof must be clear and cogent.’ The simple fact that the conduct of the accused was such as to be strong and satisfactory proof that he had committed some crime the consequences of which he was endeavoring to escape—e. g., in charge of horse stealing, the possession of the horse and its sale, made hastily and for less than half its value, does not establish the corpus delicti required to be shown before any inference can be made from the circumstances that accused com- mitted the particular crime. And it has been held that, on an indictment charging robbery, where the evidence showed that the accused was riding in company with an old man, and that he declared that he intended to get into a fuss with him and take his horse, and afterwards the accused was seen riding the horse, and said that he had gotten into a fuss with the old man and taken his horse,—the evidence was insufficient to sustain a conviction, because there was no corroborative testimony that the crime had in fact been committed.* § 355. —Sufficiency of. In a case where circumstantial evidence is relied upon to establish the corpus delicti, it is not sufficient that the circumstances proved coincide with and ac- count for, and therefore render probable, the hypothesis of the guilt of the accused. The evidence must be such as to estab- lish the corpus delicti to a reasonable certainty, and exclude every other possible hypothesis except that of guilt;’ that is, the evidence must be such as to establish so positively the corpus delicti as to exclude from the minds of the jury all uncertainty 5 State v. Potter, 52 Vt. 38,1879. 2Tyner v. State, 5 Humph. 383, See infra, § 355. 1844. ; 6 Lovelady v. State, 14 Tex. App. State v. Scott, 39 Mo. 424, 1867. 545, 1888; Gay v. State, 42 Tex. 1Black v. State, 1 Tex. App. 368, Crim. Rep. 450, 60 S. W. 771, 1901. 1876. 1See infra, §§ 362, 363. 448 CRIMINAL LAW. [§ 355 in regard to it.? But to do this it is not necessary that each particular circumstance be established thus conclusively. It is sufficient if the combined effect of all the circumstances proved in a case is such as to produce the same degree of certainty in regard to the corpus delicti, as would be established by direct and positive proof.® § 356. Order of proof. In theory the corpus delicti should be satisfactorily established before any proof of the criminal agency in bringing about the state of facts is presented to the jury,’ that is, before the jury can proceed to consider who committed the crime;* but in practice the criminal agency of accused in the transaction—as in producing death of deceased— is frequently so involved that the testimony of both issues is accepted at the same time; * that is to say, in some cases the evidence establishing the existence of a crime at the same time points out the guilty agent of that crime, while in others the evi- dence of the crime is visible, but the perpetrator is unknown.‘ But in any event the jury is required in the first instance to pass upon the sufficiency of the proof of a corpus delicti, before evidence as to the commission of the erime and the guilt of the 2 State v. Davidson, 30 Vt. 377, 73 Am. Dec. 312, 1858. 8 Ibid. 1[Fed.] United States v. Searcey, 26 Fed. 435, 1885. [Mich.] People v. Hall, 48 Mich. 482, 42 Am. Rep. 477, 12 N. W. 665, 4 Am. Crim. Rep. 357, 1882. People v. Millard, 53 Mich. 63, 18 N. W. 562, 1884; People v. Swet- land, 77 Mich. 53, 43 N. W. 779, 8 Am. Crim. Rep. 283, 1889. [Pa.] Gray v. Com. 101 Pa. 380, 47 Am. Rep. 733, 1882. [Tex.] See Love- lady v. State, 14 Tex. App. 545, 1883; Gay v. State, 42 Tex. Crim. Rep. 450, 60 S. W. 771, 1901. In homicide cases particularly, should the rule be observed of not allowing any evidence of the motive until the testimony concerning the corpus delicti has been completed. People v. Hall, 48 Mich. 482, 42 Am. Rep. 477, 12 N. W. 665, 4 Am. Crim. Rep. 857, 1882; People v. Millard, 53 Mich. 68, 18 N. W. 562, 1884. There are some cases where the corpus delicti in homicide is clearly Separate and distinct from the ques- tion as to who committed the offense, if any is found to have been com- mitted. In such cases the evidence to establish the corpus delicti must first be given, before acts or admis- sions of the accused can be put in evidence. People v. Swetland, 77 Mich, 53, 43 N. W. 779, 8 Am. Crim. Rep. 283, 1889. 2 United States v. Searcey, 26 Fed. 435, 1885. Proof of malice alone has no tend- ency 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, 48 Mich. 482, 42 Am. Rep. 477, 12 N. W. 665, 4 Am. Crim. Rep. 357, 1882. 8 Lovelady v. State, 14 Tex. App. 545, 1883; Gay v. State, 42 Tex. Crim. Rep. 450, 60 S. W. 771, 1901. 4Lambright v. State, 34 Fla. 564, 16 So. 582, 9 Am. Crim. Rep. 383, 1894; George v. United States, 1 Okla. Crim. Rep. 307, 97 Pac. 1052, 100 Pac. 462, 1908. § 357] CORPUS DELICTI, GENERALLY. ‘449 defendant should be introduced; but in the consideration of the evidence, they must first determine, to the satisfaction of their own minds, that a crime has been committed, and thereafter they will be at liberty to weigh and consider the evidence bear- ing upon the accused’s connection therewith.° § 357. Confession—sufficiency of. The general rule in this country is that the corpus delicti cannot be established by the confession of the accused, unsupported by corroborative evidence’ or proof aliunde,? and a conviction had upon such 5 Gray v. Com. 101 Pa, 380, 47 Am. Rep. 733, 1882. _. 1 [Fed.] United States v. Williams, 1 Cliff. 5, Fed. Cas. No. 16,707, 1858; United States v. Jones, 20 Blatchf. 235, 10 Fed. 469, 1882; Flower v. United States, 53 C. C. A. 271, 116 Fed. 241, 1902. [Ala.] Johnson v. State, 142 Ala. 1, 37 So. 937, 1904. [Ark.] Melton v. State, 43 Ark. 370, 1884; Misenheimer v. State, 73 Ark. 407, 84 S. W. 494, 1904. [Cal.] People v. Besold, 154 Cal. 363, 97 Pac. 871, 1908; People v. Frank, 2 Cal. App. 283, 88 Pac. 578, 1905; People v. Eldridge, 3 Cal. App. 648, 86 Pac. 832, 1906. [Ga.] Joiner v. State, 119 Ga. 315, 46 8S. E. 412, 1904; Williams v. State, 125 Ga. 741, 54 S. E. 661, 1906. [Idaho] State v. Keller, 8 Idaho, 699, 70 Pac. 1051, 1902. [Ill] Bergen v. People, 17 Ill. 426, 65 Am. Dec. 672, 1856; Wil- liams v. People, 101 Ill. 382, 1882; Andrews v. People, 117 Ill. 195, 7 N. E. 265, 7 Am. Crim. Rep. 429, 1886; Gore v. People, 162 Ill. 265, 44 N. E. 500, 1896. [Iowa] State v. Knowles, 48 Iowa, 598, 1878; State v. Abrams, 131 Iowa, 479, 108 N. W. 1041, 1906. [Ky.] Collins v. Com. 15 Ky. L. Rep. 691, 25 S. W. 743, 1894. [Mich.] People v. Lane, 49 Mich. 340,13 N. W. 622, 1882; People v. Ranney, 153 Mich. 293, 19 L.R.A.(N.S.) 448, 116 N. W. 999, 1908. [Miss.] Stringfellow v. State, 26 Miss. 157, 59 Am. Dec. 247, 1853; Osborne v. State, 64 Miss. 320, 1 So. 349, 1886; Stanley v. State, 82 Miss. 498, 34 So. 360, 15 Am. Crim. Rep. 57, 1903. [Mo.] State v. Lamb, 28 Mo. 230, 1859. [Neb.] Blacker v. State, 74 Neb. 671, 121 Am. St. Rep. 751, 105 N. W. 302, 1905. [N. J.] Crim. L. Vol. 1.—29. State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, 1828. [N. Y.] People v. Jaehne, 103 N. Y. 182, 8 N. E. 473, 1886. [Ohio] Knapp v. State, 25 Ohio C. C. 571, 1904. [Pa.] Gray v. Com. 101 Pa. 380, 47 Am. Rep. 733, 1882. [Tenn.] Williams v. State, 12 Lea, 211, 1883. [Tex.] Attaway v. State, 35 Tex. Crim. Rep. 408, 34 S. W. 112, 1896; Ex parte Patterson, 50 Tex. Crim. Rep. 271, 95 S. W. 1061, 1906. [Wash.] State v. Marselle, 43 Wash. 273, 86 Pac. 586, 1906. [Wyo.] Curran v. State, 12 Wyo. 553, 76 Pac. 577, 1904. See also infra, § 361. Full proof of corpus delicti is not required to be made independently of the confession. State v. Knowles, 185 Mo. 141, 83 S. W. 1083, 1904; State v. Banusik, — N. J. —, 64 Atl. 994, 1906. Carrying concealed weapons, crime of, under Iowa statute, cannot be proved by the extrajudicial confes- sion of the accused. State v. Abrams, 131 Iowa, 479, 108 N. W. 1041, 1906. Evidence of corpus delicti derived wholly from confession of accused is not sufficient, even though such confession be freely and voluntarily made. Allen v. State, 4 Ga. App. 458, 61S. E. 840, 1908. —Confession may be considered as tending to prove the corpus delicti, though insufficient in and of itself, as well as tending to show defend- ant’s connection with the crime. Meisenheimer v. State, 73 Ark. 407, 84 S. W. 494, 1904; Allen v. State, 4 Ga. App. 458, 61 S. E. 840, 1908. Infanticide cannot be proved by 2 See infra, § 360. 450 uncorroborated evidence cannot be sustained.® CRIMINAL LAW. [§ 357 Without such corroborative proof of the corpus delicti, proof of the con- fession of the accused is inadmissible in evidence; * but such corroborative proof need not be conclusive.’ It is the province of the court to decide in the first instance that the evidence of the confession of the woman, with- out independent evidence sufficient to establish beyond a reasonable doubt that the death of the infant was caused by criminal or unlawful means. People v. Eldridge, 3 Cal. App. 648, 86 Pac. 832, 1906. New York Code Criminal Pro- cedure, § 395, declares that a defend- ant’s confession “is not sufficient to warrant « conviction, without ad- ditional proof that the crime charged was committed,’ which seems to im- ply that the confession is to be treated as evidence of the corpus delicti ; in other words, as competent proof of the body of the crime, though insufficient, without cor- roboration, to warrant a conviction. People v. Jaehne, 103 N. Y. 182, 8 N. E, 473, 1886. See infra, § 361. As to sufficiency of confession to establish corpus delicti, see notes 11 Am. Crim. Rep. 283, 595; 12 Am. Crim. Rep. 213-228. 8 See infra, § 359. On trial of one charged with mur- der, where the evidence fails to estab- lish the corpus delicti, the jury can- not convict the accused upon his mere confession, made out of court, uncorroborated by any facts and circumstances showing the truth of such confession; but it is otherwise when the corpus delicti is proved by other evidence in the case. South v. People, 98 Ill. 261, 1881. “No court will ever rely upon the confession alone, when it is apparent that there is evidence aliunde to prove that an offense has been com- mitted.” People v. Hennessey, 15 Wend. 147, 1836. 4[Ga.] Bines v. State, 118 Ga. 320, 68 L.R.A. 33, 45 S. E. 376, 12 Am. Crim. Rep. 205, 1903. [Ill.] South v. People, 98 Ill. 261, 1881. [Miss.] Stringfellow v. State, 26 Miss. 157, 59 Am. Dec. 247, 1853; Pitts v. State, 43 Miss. 472, 1655, 1870. [Neb.] Priest v. State, 10 Neb. 393, 6 N. W. 468, 1880; Smith v. State, 17 Neb. 358, 22 N. W. 780, 5 Am. Crim. Rep. 363, 1885. [R. I.] State v. Jacobs, 21 -R. I. 259, 43 Atl. 31, 1899. Before confession of the accused will authorize a conviction, it must be corroborated by evidence which, independent of the confession, tends to establish the corpus delicti. Bines v. State, 118 Ga. 320, 68 L.R.A. 33, 45 S. E. 376, 12 Am. Crim. Rep. 205, 1903. There must be other evidence that a crime has been actually com- mitted; the confession being used to connect the accused with the crime proved. Priest v. State, 10 Neb. 393, 6 N. W. 468, 1880; Smith v. State, 17 Neb. 358, 22 N. W. 780, 5 Am. Crim. Rep. 363, 1885. 5 People v. Badgley, 16 Wend. 53, 1836. See infra, § 361. Full proof required. State v. Jacobs, 21 R. I. 259, 43 Atl. 31, 1899. Some of the courts hold that the corpus delicti must be proved beyond a reasonable doubt, by evidence other than that of the confession of the accused; others hold that when the confession is supported by other evi- dence, which in and of itself tends to establish that the particular crime charged has been committed by some- body, the corpus delicti is sufficient- ly proved. Bines v. State, 118 Ga. 320, 68 L.R.A. 33, 45 8. E. 376, 12 Am. Crim. Rep. 205, 1903. See infra, §§ 362, 363. Evidence of confession competent when, as to, see People v. Jones, 31 Cal. 565, 1867; People v. Thrall, 50 Cal. 416, 1875; People v. Ramirez, 56 Cal. 533, 838 Am. Rep. 73, 1880; People v. Jones, 123 Cal. 65, 55 Pac. 698, 1898. As to sufficiency of evidence to corroborate an incomplete extra- judicial confession, see McAllister v. Sanat 2 Ga. App. 654, 58 S. E. 1110 907. § 357) CORPUS DELICTI, GENERALLY. 451 the corpus delicti is prima facie sufficient to allow a confession of the accused to go to the jury; when evidence of the corpus delictt has been admitted by the court, the jury must determine its sufficiency to establish the fact for which it is admitted, in the same manner that it will determine any other fact before the court.6 The supreme court of Mississippi has well said that the rule with regard to the proof of the corpus delicti, apart from the mere confession of the accused, proceeds upon the reason that the general fact, without which there could be no guilt, either in the accused or anyone else, must be estab- lished before anyone can be convicted of the perpetration of the alleged criminal act which caused it; ¢. g., in a case of homicide, the death must be shown; in larceny, it must be proved that the goods were lost by the owner; and in arson, it must be shown that the house was burned; for otherwise the accused might be convicted of murder when the person al- leged to have been murdered was alive; 6 This is thought to be the better view, although there is much con- flict in the authority on this ques- tion, arising out of confusion as to what is meant by the corpus delicti. Proof of the corpus delicti is not necessarily proof sufficient to go to the jury upon the question whether the accused is guilty of the crime charged. People v. Jones, 123 Cal. 65, 55 Pac. 698, 1898. It is simply proof that a crime has been committed. This is abso- lutely essential to a conviction under any evidence. Those decisions which appear to hold that insufficient proof of the corpus delicti may be supple- mented by the confession of the ac- cused are thought to use the term corpus delicti in more than its usual signification, and as embracing, in addition to the legal corpus delicti, the further elements of the guilt of the accused. This doctrine has been already sufficiently discussed, and the fact pointed out that the guilt of the accused has nothing whatever to do with the fact of the corpus delicti ; that is, with the existence of a criminal act committed by some- one. See supra, §§ 348, 349. 7 The Boorn brothers were indict- 7 or of larceny when ed for the murder of one Russell Colvin, and made a circumstantial confession to the murder; the one an oral, and the other a written, con- fession. They were convicted upon these confessions and sentenced to be hanged. Before the day of ex- ecution arrived, Russell Colvin re- turned, and the Boorns were dis- charged. In the case of Rex v. Warickshall, 1 Leach, C. L. 263, note (a), reference is made to the case of three men tried and convicted for the murder of Captain H. at Camden, in Gloucester- shire. One of them, upon the promise of pardon, confessed himself guilty of the fact, and a few years after wards it appeared in evidence that Captain H. was still alive. Other instances of erroneous con- viction upon confession of crimes which had not been committed may be found in Harrison’s Case, 1 Leach, C. L. 264-272; Smith’s Case, 2 How. St. Tr. 1049; Essex Witches, 4 How. St. Tr. 817; Suffolk Witches, 6 How. St. Tr. 647; Lloyd’s Trial, 8 How. St. Tr. 1017; Wills, Circumstantial Ev. 88; Joy, Confessions, 100; Ram. Facts, 3 Am. ed. 439; Kerr, Before and At Trial, passim. 452 CRIMINAL LAW. [§ 357 the owner has not lost the goods, or of arson when the house has not been burned. But when the general fact has been proved, the foundation is laid, and it is competent to show by any legal and sufficient evidence, how and by whom the act was committed, and that it was done criminally.® § 358. —English rule. Regarding the admissibility and the sufficiency of the confession of the accused to prove the corpus delicti, there is an apparent confusion in the English cases due to the text writers. It is the well-settled law in Eng- land that a voluntary and unsupported confession of guilt, whether made in the course of conversation with private indi- viduals, or under examination before a magistrate, is clearly sufficient to warrant conviction wherever there is independent proof of the corpus delicti.!. And according to some of the ele- mentary writers, the confession of the accused alone is suf- ficient to warrant a conviction, without corroborative evidence or proof aliunde. Thus, it is said in Russell on Crimes, that such confessions are admissible in evidence as the highest and most satisfactory proof, because it is fairly to be presumed that no man would make such a confession against himself if the facts confessed were not true; and that the first authorities have now established that a confession, if duly made and satisfac- torily proved, is sufficient alone, without any corrobrating evi- dence aliunde, to warrant a conviction.? The text in Roscoe’s Criminal Evidence is to the same effect.2 The authorities cited effect is Com. v. Cutaiar, 5 Pa.. Dist. R. 403, 1896. 8 Sam v. State, 33 Miss. 347, 1857. This case dispenses with the neces- sity of proving the criminal agency. The case of People v. Simonsen, 107 Cal. 345, 40 Pac. 440, 1895, on the other hand, holds that there must be proof of criminal agency on the part of someone. The court say: “A building may be burned under such suspicious circumstances as to indi- cate the work of an incendiary, and thus a corpus delicti established, and the doors opened for the defendant’s admissions and confessions; but there must be some evidence of some kind tending to show the incendiary char- acter of the fire before these ad- missions and confessions can be ad- mitted in evidence.” To the same 1See Wills, Circumstantial Ev. 61. 22 Russell, Crimes, 824; 3 Russell, Crimes, 7th Eng. 1st Can. ed. 2155. 8 Roscoe, Crim. Ev. 28. Foster and Blackstone, however, maintain a different doctrine; the latter holding that confessions, even in cases of felony at common law, were the weakest and most suspi- cious of all testimony, very likely to be obtained by artifice, false hopes, promises of favor, or menaces; sel- dom remembered accurately, or re- ported with precision, incapable, in their nature, of being disproved by other negative testimony. See 4 BI. Com. 357, § 359] CORPUS DELICTI, GENERALLY. 453, by those text writers, upon examination, are found not to support the text, for the reason that in each of the cases, with the exception of Rex v. Wheeling,® there were, independent of the confession, some corroborating circumstances which tend- ed to prove the commission of a felony; and the case of Rex v. Wheeling is so briefly reported as not to be safely relied upon as sustaining the doctrine of the text writers. The whole state- ment of that case is simply that “it was determined that a prisoner may be convicted on his own confession, when proved by legal testimony, although it is totally uncorroborated by any other evidence,” which statement may reasonably be taken to mean that where the commission of a felony is proved by evi- dence aliunde, a prisoner may be convicted on his own confes- sion, notwithstanding the fact that there be nothing to corrob- orate his confession as to his agency in the commission of the felony. If this construction upon the meaning of the report be correct, it does not appear that either of the cases cited ex- pressly decided that the naked confession of the prisoner alone, without any corroborative evidence, is sufficient to authorize a jury to convict.® § 359. —Extrajudicial confession. Where a person is charged with the commission of a particular crime, before he can be found guilty thereof, it is essential that the existence of the corpus delicti be established,’ which cannot be done by 4 Wheeling’s Case, 1 Leach, C. 311; Rex v. Eldridge, Russ. & R. C. 440; Rex v. Falkner, Russ. & C. C. 481; Rex v. White, Russ. & GC. C. 508; Rex v. Tippet, Russ. & C. C. 509. 51 Leach, C. L. 311. 6See Stringfellow v. State, 26 Miss. 157, 59 Am. Dec. 247, 1853. 1 [Ark.] Cavaness v. State, 43 Ark. 331, 1884. [Cal.] People v. Jones, 31 Cal. 565, 1867; People v. Jones, 123 Cal. 65, 55 Pac. 698, 1898. [Colo.] McBride v. People, 5 Colo. App. 91, 37 Pac. 953, 1894. [Iowa] State v. Millmeier, 102 Iowa, 692, 72 N. W. 275, 1897. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [Mo.] State v. Scott, 39 Mo, 424, 1867; State v. Dickson, 78 Mo. 438, 1883. [Mont.] State v. Pepo, 23 Mont. 473, 59 Pac. 721, L. Cc. R. R. R. 1899. [N. Y.] Ruloff v. People, 18 N. Y. 179, 1858; People v. Schryver, 42 N. Y. 6, 1 Am. Rep. 480, 1870; People v. Bennett, 49 N. Y. 137, 1872; People v. Place, 157 N. Y. 584, 52 N. E. 576, 1899; People v. Benham, 160 N. Y 402, 55 N. E. 11, 1899. [N. C.] State v. Williams, 52 N. C. (7 Jones, L.) 446, 78 Am. Dec. 248, 251, 1860. [Ohio] State v. Leuth, 3 Ohio C. D. 48, 5 Ohio C. C. 94, 1890 [Pa.] Com. v. Cutaiar, 5 Pa. Dist. R. 403, 1896. [Tex.] Love- lady v. State, 14 Tex. App. 545, 1884;. 17 Tex. App. 287, 1884; Shulze v. State, 28 Tex. App. 316, 12 S W. 1084, 1889; Jackson v. State, 29 Tex. App. 458, 16 S. W. 247, 1891; Josef v. State, 34 Tex. Crim. Rep. 446, 30 S. W. 1067, 1895; Anderson v. State, 34 Tex. Crim. Rep. 546, 53 Am. St. Rep. 722, 31 454 CRIMINAL LAW. [§ 359 mere extrajudicial confession of the accused; ? it must be done by direct and positive proof * aliunde,* and beyond a reasonable S. W. 763, 1895; Conde v. State, 35 Tex. Crim. Rep. 98, 60 Am. St. Rep. 22, 34 S. W. 286, 1895. [Va.] Smith v. Com. 21 Gratt. 809, 1871. 2[Fed.] United States v. Mulva- ney, 4 Park. Crim. Rep. 164, Fed. Cas. No. 15,838, 1859. [Cal.] Peo- ple v. Jones, 31 Cal. 565, 1867; Peo- ple v. Thrall, 50 Cal. 415, 1875. [Ga.] Bines v. State, 118 Ga. 320, 68 L.R.A. 33, 45 S. E. 376, 12 Am. Crim. Rep. 205, 1903. [Miss.] Stringfellow v. State, 26 Miss. 157, 59 Am. Dec. 247, 1853; Sam v. State, 33 Miss. 347, 1857; Jenkins v. State, 41 Miss. 582, 1867; Pitts v. State, 43 Miss. 472, 1870. [Mo.] Robinson v. State, 12 Mo. 592, 1849; State v. Scott, 39 Mo. 424, 1867; State v. German, 54 Mo. 526, 14 Am. Rep. 481, 1874. [Mont.] Territory v. McClin, 1 Mont. 398, 1871. [N. Y.] People v. Hennessey, 15 Wend. 147, 1836; People v. Badgley, 16 Wend. 53, 1836. [Va.] Smith v. Com. 21 Gratt. 809, 1871. A conviction of any of the higher crimes is not warranted upon proof of the corpus delictt by uncorrobo- rated extrajudicial confession of the accused. State v. German, 54 Mo. 526, 14 Am. Rep. 481, 1874. Where the corpus delicti is not proved by independent evidence, ex- trajudicial confessions of the ac- cused are insufficient to warrant a conviction, especially in a capital ease. Stringfellow v. State, 26 Miss. 157, 59 Am. Dec. 247, 1853. 8 [Ala.] Winslow v. State, 76 Ala. 42, 5 Am. Crim. Rep. 48, 1884. [Nev.] State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530, 1879. [N. Y.] People v. Badgley, 16 Wend. 53, 1836. See note 68 L.R.A. 78. Cause and manner of death may be shown by circumstantial evidence. State v. Ah Chuey, 14 Nev. 79, 33 Am Rep. 530, 1879. 4Proof aliunde the confession is absolutely essential to establish the corpus delicti. See [Fed.] United States v. Mayfield, 59 Fed. 118, 1893; United States v. Mulvaney, 4 Park. Crim. Rep. 164, Fed. Cas. No. 15,833, 1859. [Ala.] Mose v. State, 386 Ala. 211, 1860; Matthews v. State, 55 Ala, 187, 28 Am. Rep. 698, 1876; Johnson v. State, 59 Ala. 37, 3 Am. Crim. Rep. 256, 1877; Wins- low v. State, 76 Ala. 42, 5 Am. Crim. Rep. 43, 1884. [Cal.] People v. Thrall, 50 Cal. 415, 1875; People v. Simonsen, 107 Cal. 345, 40 Pac. 440, 1895; People v. Jones, 123 Cal. 65, 55 Pac. 698, 1898; People v. Tapia, 131 Cal. 647, 63 Pac. 1001, 1901; People v. Ward, 145 Cal. 736, 79 Pac. 448, 1905. [Del.] State v. Hand, 1 Marv. (Del.) 545, 41 Atl. 192, 1894. [Fla.] Lambright v. State, 34 Fla. 564, 16 So. 582, 9 Am. Crim. Rep. 383, 1894. [Ga.] Mur- ray v. State, 43 Ga. 256, 1871; West- brook v. State, 91 Ga. 11, 16 S. E. 100, 1892 (distinctly recognizing this doctrine in holding the corpus delicti established independent of the con- fession) ; Bines v. State, 118 Ga. 320, 68 L.R.A. 33, 45 S. E. 376, 12 Am. Crim. Rep. 205, 1903; McAllister v. State, 2 Ga. App. 654, 58 S. HE. 1110, 1907. [Iowa] State v. Feltes, 51 Iowa, 501, 1 N. W. 755, 1879. [Ky.] Cunningham v. Com. 9 Bush, 149, 1872 (statutory) [Mich.] People v. Lane, 49 Mich. 340, 13 N. W. 622, 1883. [Miss.] Stringfellow v. State, 26 Miss. 157, 59 Am. Dec. 247, 1853; Jenkins v. State, 41 Miss. 582, 1867; Pitts v. State, 43 Miss. 472, 1870. [Mo.] Robinson v. State, 12 Mo. 592, 1849; State v. Lamb, 28 Mo. 218, 1859; State v. Scott, 39 Mo. 425, 1867; State v. German, 54 Mo. 526, 14 Am. Rep. 481, 1874. [Neb.] Dodge v. People, 4 Neb. 220, 1876; Priest v. State, 10 Neb. 3938, 6 N. W. 468, 1880; Smith v. State, 17 Neb. 358, 22 N. W. 780, 5 Am. Crim. Rep. 363, 1885; Sullivan v. State, 58 Neb. 796, 79 N. W. 721, 1899. [N. Y.] People v. Hennessey, 15 Wend. 147, 1836; People v. Badgley, 16 Wend. 53, 1836. Tenn] Tyner v. State, 5 Humph. 383, 1844. [Tex.] Willard v. State, 27 Tex. App. 386, 11 Am. St. Rep. 197, 11 8. W. 453, 1889. See Wharton, Crim. Ev. § 632. As to confessions as proof of cor- § 360] CORPUS DELICTI, GENERALLY. 455 doubt.’ Facts ascertained by reason of the confession may be used for the purpose of establishing the corpus delicti; but this will not dispose of the rule requiring that the corpus delicti must be proved independently of the confession, and beyond a reasonable doubt, before evidence of the confession is admis- sible.® § 360. —Proof aliunde. Proof of the corpus delicti by evidence aliwnde is necessary as a basis for the admission of an extrajudicial confession by the accused.1_ Where the corpus pus delicti, see notes 78 Am. Dec. 254; 8 Eng. Rul. Cas. 104. As to confessions of prisoners be- ing insufficient to convict, see notes 65 Am. Dec. 676, 6 Am. St. Rep. 251; 12 Am. Crim, Rep. 213-228; 15 Am. Crim. Rep. 58-78. As to necessity of proof of corpus delicti to corroborate confession, see note 68 L.R.A. 54. In absence of proof aliunde of the corpus delicti, the court should direct the prisoner’s acquittal. People v. Jones, 31 Cal. 565, 1867; United States v. Mulvaney, 4 Park. Crim. Rep. 164, Fed. Cas. No. 15,833, 1859. Fundamental rule of ancient origin’ that no person shall be convicted or involved in the consequences of guilt on extrajudicial confession without proof aliunde of the corpus delicti,; and betore such confession should be allowed to go to the jury, there should be proof before the court tending to show that the offense to which the confession relates has been committed. Lambright v. State, 34 Fla. 564, 16 So. 582, 9 Am. Crim. Rep. 383, 1894. “Before conviction is justified, the government should be required to establish the corpus delicti; by some degree of circumstantial or other evi- dence, independent of defendant’s extrajudicial confession.” United States v. Mayfield, 59 Fed. 118, 1893. Should a man openly confess that he has killed another at a certain time and in a certain place, there must be proof aliunde that the man was actually killed, even though the missing man may not come back, before there can be a conviction; without proof of the corpus delictt, the confession amounts to nothing. State v. Hand, 1 Marv. (Del.) 545, 41 Atl. 192, 1894. 5 Pitts v. State, 43 Miss. 472, 1870. See infra, § 363. 6 Pitts v. State, supra, 1870. 1 [Fed.] United States v. Boese, 46 Fed. 917, 1891; United States v. Mayfield, 59 Fed. 118, 1893. [Ala.] Matthews v. State, 55 Ala. 187, 28 Am. Rep. 698, 1876; Johnson v. State, 59 Ala. 37, 3 Am. Crim. Rep. 256, 1877; Young v. State, 68 Ala. 569, 1881; Winslow v. State, 76 Ala, 42, 5 Am. Crim. Rep. 48, 1884; Ryan v. State, 100 Ala. 94, 14 So. 868, 1893; Harden v. State, 109 Ala. 50, 19 So. 494, 1895. [Cal.] People v. Jones, 31 Cal. 565, 1867; Peo- ple v. Ah How, 34 Cal. 218, 1867; People v. Thrall, 50 Cal. 415, 1875. [Colo.] Roberts v. People, 11 Colo. 213, 17 Pac. 637, 1888. [Fla.] An- thony v. State, 44 Fla. 1, 32 So. 818, 1902; Mitchell v. State, 45 Fla. 76, 38 So. 1009, 1903. [Ga.] Allen v. State, 91 Ga. 189, 16 S. E. 980, 1892; Wimberly v. State, 105 Ga. 188, 31 S. E. 162, 1898. [TIl.] Ber- gen v. People, 17 Ill. 426, 65 Am. Dec. 672, 1856; May v. People, 92 Ill. 343, 1879; South v. People, 98 Tl. 261, 1881; Williams v. People, 101 Ill. 382, 1882. [Iowa] State v. Carroll, 85 Iowa, 1, 51 N. W. 1159, 1892. [Ky.] Mullins v. Com. 14 Ky. L. Rep. 569, 20 S. W. 1035, 1893. [Mich.] People v. Lane, 49 Mich. 340, 13 N. W. 622, 1883. [Miss.] String- fellow v. State, 26 Miss. 157, 59 Am. Dec. 247, 1853; Brown v. State, 32 Miss. 433, 1856; Jenkins v. State, 41 Miss. 582, 1867; Pitts v. State, 43 Miss. 472, 1870. [Mo.] Robinson v. State, 12 Mo. 592, 1849: State v. Scott, 39 Mo. 424, 1867; State v. CRIMINAL LAW. [§ 360 456 delicti is otherwise sufficiently established, the uncorroborated confession of the accused is sufficient to warrant his conviction of the offense charged and confessed, even in those cases where the punishment thereof is death.? In such a case the jury should first pass upon the sufficiency of the proof aliunde of the corpus delictz,® but it is not required that the corpus delicti be proved beyond the possibility of doubt before evidence of the confession of the accused can be submitted to the jury.‘ § 361. —Corroboration. Regarding the question of the necessity for evidence corroborating the confession of the ac- cused in order that such confession may establish the corpus delictt, the authorities in this country are not harmonious,’ but German, 54 Mo. 526, 14 Am. Rep. 481, 1874; State v. Patterson, 73 Mo. 695, 1881; State v. Brooks, 92 Mo. 542, 5 S. W. 257, 330, 1887, [Mont.] Territory v. Mc- Clin, 1 Mont. 394, 1871; Territory v. Farrell, 6 Mont. 12, 9 Pac. 536, 1886; United States v. Weikel, 8 Mont. 124, 19 Pac. 396, 1888. [Neb.] Priest v. State, 10 Neb. 393, 6 N. W. 468, 1880; Smith v. State, 17 Neb. 358, 22 N. W. 780, 5 Am. Crim. - Rep. 363, 1885. [N. J.] State v. Aaron, 4 N. J. L 231, 7 Am. Dee. 592, 1818. [N. Y.] People v. Hen- nessey, 15 Wend. 147, 1836; People v. Badgley, 16 Wend. 53, 1836; Ru- loff v. People, 18 N. Y. 179, 3 Park. Crim. Rep. 401, 1858; Lyon v. Lyon, 62 Barb 138, 1861; People v. Burton, 77 Hun, 498, 28 N. Y. Supp. 1081, 1894. [N. C.] State v. Long, 2 N. C. (1 Hayw.) 455, 1797. [Ohio] Black- burn v. State, 23 Ohio St. 146, 1872. [Pa.] Com v. Hanlon, 3 Brewst. (Pa.) 461, 1870. [Tenn.] Tyner v. State, 5 Humph. 383, 1844. [Tex.] Hill v. State, 11 Tex. App. 132, 1881; Willard v. State, 27 Tex. App. 386, 11 Am St. Rep. 197, 11 S. W. 453, 1889; Herris v. State, 28 Tex. App. 308, 19 Am. St. Rep. 837, 12 S. W. 1102, 1889; Jackson v. State, 29 Tex. App. 458, 16 S. W. 247, 1891; Cox v. State, — Tex. Crim. Rep —, 69 S. W. 145, 1902. [Vt.] State v. Jenkins, 2 Tyler (Vt.) 377, 1803. [Va.] Wolf v. Com. 30 Gratt. 833, 1878; Early v. Com. 86 Va. 921, 11 S. E. 795, 1890. 2[N. J.] State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, 1828. [Pa.] Gray v. Com. 101 Pa. 380, 47 Am. Rep. 733, 1882. [Tex.] Willard v. State, 27 Tex. App. 386, 11 Am. St. Rep. 197, 11 S. W. 453, 1889. Corpus delicti having been estab- lished by other proof, the prisoner may be convicted upon his own con- fession, if it is free and voluntary, and satisfactorily proved. [Ala.] Mose v. State, 36 Ala 211, 1860. [Miss.] Sam v. State, 33 Miss. 347, 1857. [Mo.] State v. Brown, 1 Mo. App. 86, 1876. [N. J.] State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, 1828. Where the corpus delicti, has been established by other evidence, the jury may consider the defendant’s statement in connection with other proof relating to the corpus delictt. Willard v. State, 27 Tex. App. 386, 11 Am. St. Rep. 197, 11 8. W. 453, 1889. 8 Gray v. Com. 101 Pa. 380, 47 Am. Rep. 733, 1882. 4 Ibid. 18tate v. Guild, 10 N. J. L. 163, 18 Am. Dee. 404, 1828. State v. Cow- an, 29 N. C. (7 Ired. L) 239, 1847. In the case of State v. Cowan, 29 N. C. (7 Tred. L.) 239, 1847, it was decided that the accused may be convicted on his own voluntary con- fession, without. corroborative evi- dence establishing the commission of the felony. § 361] CORPUS DELICTrI, GENERALLY. 457 the great weight of authority—almost an unknown broken line —is to the effect that the uncorroborated confession of the ac- cused is insufficient to establish the corpus delicti, but that, where corroborated, such confession may be admitted in evi- dence for the purpose of establishing the corpus delicti in a charge of felony.” Some of the cases hold that full proof of the 2 [Ala.] Matthews v. State, 55 Ala. 187, 28 Am. Rep. 698, 1876; Martin v. State, 90 Ala. 602, 24 Am St. Rep. 844, 8 So. 858, 1890. [Cal.] People v. Jones, 31 Cal. 565, 1867. [Ga.] Bines v. State, 118 Ga. 320, 68 L.R.A. 33, 45 S. E. 376, 12 Am. Crim. Rep. 205, 1903. [Ill.] Bergen v. People, 17 Ill. 426, 65 Am. Dec. 672, 1856, [Mich.] People v. Lane, 49 Mich. 340, 13 N. W. 622, 1882. [Miss.] String- fellow v. State, 26 Miss. 157, 59 Am. Dec. 247, 1853; Jenkins v. State, 41 Miss. 582, 1867; Pitts v. State, 43 Miss. 482, 1870. [Mo.] Robinson v. State, 12 Mo. 592, 1849; State v. Scott, 39 Mo. 424, 1867; State v. German, 54 Mo. 526, 14 Am. Rep. 481, 1874. [Neb.] Priest v. State, 10 Neb.: 393, 6 N. W. 468, 1880. [N. J.] State v. Aaron, 4 N. J. L. 231, 7 Am. Dec. 592, 1818; State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, 1828. [N. Y.] People v. Hennessey, 15 Wend. 147, 1836; People v. Badgley, 16 Wend. 53, 1836. [N. C.] State v. Long, 2 N. C. (1 Hayw.) 455, 1797. [Tenn.] Tyner v. State, 5 Humph. 383, 1844. As to sufficiency of evidence to corroborate incomplete extrajudicial confession, see McAllister v. State, 2 Ga. App. 654, 58 S. E. 1110, 1907. Corroborating facts need not necessarily, independent of the con- fession, tend to prove the corpus delicti. [Ill] Bergen v. People, 17 Ill, 426, 65 Am. Dec. 672, 1856. [N. J.] State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, 1828. [N. Y.] People v. Hennessey, 15 Wend. 147, 1836; People v. Badgley, 16 Wend. 538, 1836. [N. C.] State v. Long, 2 N. C. (1 Hayw.) 455, 1797. Adultery may be proved on direct confession, when corroborated by proof that woman with whom it was alleged to have been committed was delivered of an illegitimate child. Com. v. Morrissey, 175 Mass. 264, 56 N. E. 285, 15 Am. Crim. Rep. 22, 1900. Charge of wife beating; proof that accused and his wife had been in the house together, that the wife ran crying from the house and called a policeman, to whom she showed a swollen eye and a bowl of bloody water in which she had bathed her nose, held to be sufficient corrobor- rative evidence to justify the convic- tion of the accused on his extra- judicial confession. Joiner v. State, 119 Ga 315, 46 S. E. 412, 1904, Corroboration in a material and substantial manner necessary, but need not establish fact of corpus delictt beyond a reasonable doubt. Flower v. United States, 53 C. C. A. 271, 116 Fed. 241, 1902. Proof that deceased was last seen with defendant at place where body was subsequently found, and evi- dence that the blood-stained gar- ments worn by defendant at time of committing the deed had been where defendant said he had deposited them, though they were no longer there, were held to be sufficient cor- roboration to sustain conviction. Brown v. State, 105 Ga. 640, 31 S. E. 557, 1908. Proof that deceased was shot and killed while dancing is sufficient cor- roborative evidence to admit con- fession of the accused that he shot deceased through a window while he was dancing in a ballroom. Sulli- van v. State, 40 Tex. Crim. Rep. 633, 51S. W. 375, 1899. Where a man apparently physical- ly sound receives a blow upon his head which crushes in his skull, and leaves him helpless and insensible, and he remains in a comatose con- dition three fourths of an hour, and then dies, the conclusion is irresisti- ble that he died of the injury, no 458 CRIMINAL LAW. [§ 361 corpus delictt, independently of the confession, is necessary.® While, to convict of crime, it is necessary that the state show (1) the corpus delicti, and (2) the connection of the accused with or responsibility for the crime charged,‘ yet this may be done by circumstantial, as well as by direct, evidence, if such cir- cumstantial evidence is satisfactory to the understanding and the conscience of the jury beyond a reasonable doubt.® other cause of death being suggest- ed. Loew v. State, 60 Wis. 559, 19 N. W. 487, 1884. Corroboration of confession of de- fendant merely does not necessarily prove the corpus delicti. Allen v. State, 4 Ga. App. 458, 61 S. E. 840, 1908. Evidence of facts and circum- stances attending the particular of- fense, and generally attending the commission of similar offenses, or of all facts to the discovery of which the confession has led, and which would not probably have existed if the offense had not been committed, or of facts having w just tendency to lead the mind to the conclusion that the offense has been committed, —is admissible to corroborate the confession of the accused. The weight which should be accorded it, when connected with the confession, the jury must determine, under prop- er instruction from the court. Mat- thews v. State, 55 Ala. 187, 28 Am. Rep. 698, 1876. Flight, evidence of, not a sufficient corroborating circumstance to estab- lish the corpus delicti. Huey v. State, 7 Ga. App. 398, 66 S. E. 1023, 1910. Implied confession, without corrob- oration or other proof of corpus delicti, is insufficient to support a conviction of felony. Matthews v. State, 55 Ala. 187, 28 Am. Rep. 698, 1876; May v. People, 92 Ill. 343, 1879. Independent testimony to estab- lish corpus delicti is not necessary to the admission in evidence of a con- fession of the accused. United States v. Williams, 1 Cliff. 5, Fed. Cas. No. 16,707, 1858. —Confession of murder admissible, although corpus delicti proved by corroborative evidence only. United Cor- States v. Williams, 1 Cliff. 5, Fed. Cas. No. 16,707, 1858. Proof by corroboration of corpus delicti need not be as full and con- clusive as would be essential if there were no confession. [Fed.] United States v. Williams, 1 Cliff. 5, Fed. Cas, No. 16,707, 1858. [Ala.] Mat- thews v. State, 55 Ala, 187, 28 Am, Rep. 698, 1876; Bergen v. State, 17 Ill. 426, 65 Am. Dec. 672, 1856. [Mass.] Com. v. McCann, 97 Mass. 580, 1867. [N. Y.] People v. Badg- ley, 16 Wend. 53, 1836. Uncorroborated by any circum- stances impressing belief in its truth, arising out of the conduct of the accused or otherwise, confession is not sufficient. Bergen v. People, 17 Ill. 426, 65 Am. Dec. 672, 1856. Sheriff finding bricks removed from wall on entering cell of accused; this sufficiently establishes the cor- pus delicti of an attempt to escape, and lays the foundation of defend- ant’s admission thereof. Bradford v. State, 146 Ala. 150, 41 So. 471, 1906. Statutory rape may be proved by the confession of accused, corrobora- ted by proof that prosecutrix gave birth to a child. Bradshaw v. State, 49 Tex. Crim. Rep. 165, 94 S. W. 223, 1906. 3State v. Jacobs, 21 R. I. 259, 43 Atl. 31, 1899. 4See ante, §§ 349 et seq. 5 Circumstantial evidence suffi- cient to establish either element of the offense,—that is to say, either (1) the corpus delicti, or (2) the connection of the accused with the crime,—where it produces conviction in the minds of the jury beyond a reasonable doubt. State v. Clinken- beard, 142 Mo App. 146, 125 S. W. 827, 1910. Willard v. State, 27 Tex. § 362] CORPUS DELICTI, GENERALLY. 459 roboration of the confession of the accused is not required in those cases where the corpus delicti has been otherwise proved.® Where there are such extrinsic corroborative circumstances as will, when taken in connection with the confession, satisfy the jury beyond a reasonable doubt of the guilt of the <-cused, it has been held that the confession of the accused is competent evidence, and, together with the extrinsic facts, will sustain a conviction.” “Corroborative circumstances,” with reference to the confession of an accused, are such facts and circumstan- ces as serve to strengthen such confession, and to impress the jury with its truthfulness.® § 362. Extent of proof—Clear and satisfactory. In a prosecution on a charge of crime, that it is incumbent on the state to establish the corpus delicti clearly and satisfactorily is the doctrine of some of the cases.1_ This corpus delicti con- sists, as has already been shown,” of (1) the basis of the charge, (2) criminal agency of some human being in bringing the state of facts into existence,* and, this being shown, the state must further show the accused’s connection with or responsi- bility for the criminal act.* Thus, in a charge of murder, it is incumbent on the state to show (1) the death of the party al- leged to be dead, (2) that the death was produced by the crim- inal act of some other than the deceased, and was not the re- sult of accident, natural cause, or suicide, and (3) that the defendant committed, or was in some way criminally respon- App. 386, 11 Am. St. Rep. 197, 11 S. W. 453, 1889. 6[Fed.] United States v. Wil- liams, 1 Cliff. 5, Fed. Cas. No. 16,- 707, 1853. [Miss.] Sam v. State, 33 Miss. 347, 1857. [Mo.] State v. Brown, 1 Mo. App. 86, 1876. [N. J.] State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, 1828. 7 [Fed.] United States v. Williams, 1 Cliff. 5, Fed. Cas. No. 16,707, 1853; Flower v. United States, 53 C. C. A. 271, 116 Fed. 241, 1902. [Ga.] Crowder v. State, 56 Ga. 44, 1876; Williams v. State, 57 Ga. 478, 1876. [Mass.] Com. v. Tarr, 4 Allen, 315, 1862. [Mo.] State v. Patterson, 73 Mo. 695, 1881; State v. Coats, 174 Mo. 396, 74 S. W. 864, 1903. [N. Y.] People v. Badgley, 16 Wend. 53, 1836. [Tex.] Jackson v. State, 29 Tex. App. 458, 16 S. W. 247, 1891; Gray v. State, 44 Tex. Crim. Rep. 477, 72 S. W. 858, 1903. 8 State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, 1828. 1 Younkins v. State, 2 Coldw. 219, 1865; Lovelady v. State, 14 Tex. App. 545, 1884. 2See supra, §§ 347, 348. 3 Death, and that the death was produced by criminal agency, are concurrent elements of the corpus delicti, and must be clearly shown before one accused can be convicted upon his confession alone. Lovelady v. State, 14 Tex. App. 545, 1884. 4See supra, §§ 348, et seq. CRIMINAL LAW. [§ 362 460 sible for, the act which produced the death. This proof may be made by circumstantial evidence,® and some of the cases hold that it is not required to be conclusive, that is, not re- quired to be beyond a reasonable doubt, in order to entitle the state to give evidence to the jury of the confession of the ac- cused.” It is the province of the court to decide in the first instance. whether the evidence adduced of the corpus delicti is prima facie sufficient to allow evidence against the accused to go to the jury; and when the evidence of the corpus delicti has been thus established and admitted by the court, the jury must de- termine its sufficiency to establish the fact for which it was ad- mitted, the same as in regard to other facts before them. The decision of the court in admitting evidence of the corpus de- lictt does not bind the jury, for the reason that the province of the court in such particular is only to determine whether suf- ficient evidence has been adduced to allow it to go to the jury, for their consideration and determination.* The corpus delictt being established, further proof of the identity of the de- ceased ° need not be made by evidence of the same quality and character required in the first instance to establish the fact of the crime.” § 363. —Beyond a reasonable doubt. A criminal charge against an accused involves two propositions, to wit, (1) the commission of the offense, and (2) the guilty agency of the ac- cused in connection therewith; and both of these propositions. must be established by the state to the satisfaction of the jury beyond a reasonable doubt;* otherwise the accused is entitled 5 Lovelady v. State, 14 Tex. App. v. State, 34 Fla. 564, 16 So. 582, > 545, 1884. Am. Crim. Rep. 383, 1894. 6 Lovelady v. State, 14 Tex. App. 9%Identity of the victim need not 545, 1884. See supra, § 352. be established by direct evidence, 7 Fact of corpus delicti need not be in order to sustain a conviction of proved beyond possible doubt; it is murder or manslaughter. People v.. to be found by the jury like any other fact in a case. [Cal.] People v. Jones, 123 Cal. 65, 55 Pac. 698, 1898, [Ill.] Williams v. People, 101 Ill. 382, 1882. [Pa.] Gray v. Com. 101 Pa. 380, 47 Am. Rep. 733, 1882. Compare; Infra, § 363. 8 Winslow v. State, 76 Ala. 42, 5 Am. Crim, Rep, 43, 1884; Lambright Palmer, 109 N. Y. 110, 4, Am. St. Rep. 423, 16 N. E. 529, 7 Am. Crim, Rep. 399, 1888. 10 People v. Palmer, 109 N. Y. 110, 4 Am. St. Rep. 423, 16 N. E. 529, 7 Am. Crim. Rep. 1399, 1888. 1[Eng.] Reg. v. Hopkins, 8 Car. & P. 591. [Fed.] United States v. Hewson, Brunner, Col. Cas, 432, Fed. 8 363] Cas. ‘No. 15,360, 1844. [Cal.] People v. Ah Fung, 16 Cal. 137, 1860; Peo- ple v. Kelly, 28 Cal. 426, 1865; Peo- ple v. Jones, 31 Cal. 565, 1867; People v. Phipps, 39 Cal. 326, 1870; People v. Eldridge, 3 Cal. App. 648, 86 Pac. 832, 1906. [Colo.] McBride v. People, 5 Colo. App. 91, 37 Pac. 953, 1894. [Fla.] Anderson v. State, 24 Fla. 139, 3 So. 884, 1888; Lam- bright v. State, 34 Fla. 564, 16 So. 582, 9 Am. Crim. Rep. 383, 1894. [Ga.] Lee v. State, 7 Ga. 260, 1883; Tatum v. State, 1 Ga. App. 778, 57 S. E. 956, 1907. [Idaho] State v. Al- corn, 7 Idaho, 599, 97 Am. St. Rep. 252, 64 Pac. 1014, 1901. [Il.] Wil- liams v. People, 101 Ill. 382, 1882. [Ind.] Hipp v. State, 5 Blackf. 149, 33 Am. Dec. 463, 1839; Findley v. State, 5 Blackf. 576, 36 Am. Dec. 557, 1841; Sumner v. State, 5 Blackf. 579, 36 Am. Dec. 561, 1841. [Iowa] State v. Keeler, 28 Iowa, 551, 1870; State v. Winter, 72 Iowa, 627, 34 N. W. 475, 1887; State v. Billings, 81 Iowa, 99, 46 N. W. 862, 1890. [Ky.] Morris v. Com. 20 Ky. L. Rep. 402, 46 S. W. 491, 1898. [Mass.] ‘Com. v. York, 9 Met. 92, 93 Am. Dec. 373, 1845; Richardson v. Bur- leigh, 3 Allen, 479, 1862; Com. v. Costley, 118 Mass. 1, 1875. [Minn.] State v. Laliyer, 4 Minn. 368, Gil. 277, 1860. [Miss.] Haynes v. State, — Miss. —, 27 So. 601, 1900. [Mo.] State v. Moxley, 102 Mo. 374, 14 S. W. 946, 15 S. W. 556, 1890; State v. Shackelford, 148 Mo. 493, 50 8S. W. 105, 1899; State v. Brown, 1 Mo. App. 86, 1876; State v. Clinkenbeard, 142 Mo. App. 146, 125 S. W. 827, 1910. [Neb.] McNamee v. State, 34 Neb. 288, 51 N. W. 821, 1892. [Nev.] State v. Cardelli, 19 Nev. 319, 10 Pac. 433, 1886. [N. Y.] Peo- ple v. Schryver, 42 N. Y. 1, 1 Am. Rep. 480, 1870; People v. Beckwith, 108 N. Y. 67, 15 N. E. 53, 1888; People v. Deacons, 109 N. Y. 374, 16 N. E. 676, 1888. [Pa.] Gray v. Com. 101 Pa. 381, 47 Am. Rep. 783, 1882; Com. v. O’Donohue, 8. Phila. 623, 1871. [Tex.] Lovelady v. State, 14 Tex. App. 545, 1884, 17 Tex. App. 287, 1884; Walker v. State, 14 Tex. App. 609, 1884; Sheppard v. State, 17 Tex. App. 74, 1884; Lucas v. State, 19 Tex. App. 79, 1885; Harris v. State, 28 Tex. App. 308, 19 Am. CORPUS DELICTI, GENERALLY. 461 St. Rep. 837, 12 S. W. 1102, 1889, 30 Tex. App. 549, 17 S. W. 1110, 1891; Johnson v. State, — Tex. Crim. Rep. —, 24 S. W. 285, 1893; Josef v. State, 34 Tex. Crim. Rep. 446, 30 S. W. 1067, 1895; Anderson v. State, 34 Tex. Crim. Rep. 546, 53 Am St. Rep. 722, 31 S. W. 673, 1895; Hunter v. State, 34 Tex. Crim. Rep. 599, 31S. W. 674, 1895; Kugadt v. State, 38 Tex. Crim. Rep. 681, 44 S. W. 989, 1898. [Wash.] Timmer- man v. Territory, 3 Wash. Terr 445, 17 Pac. 624, 1888. [W. Va.] State v. Flanagan, 26 W. Va. 116, 1885. [Wyo.] Curran v. State, 12 Wyo. 5538, 76 Pac. 577, 1904. Every essential element must be proved beyond a reasonable doubt. People v. Phipps, 39 Cal. 333, 1870. Prosecution is required to prove (1) that the crime has been commit- ted; (2) that it was committed by the person charged, and none other. People v. Jones, 31 Cal. 565, 1867. Proof of the corpus delicti, in or- der to sustain a conviction, must be such as to exclude from the minds of the jury every reasonable doubt as to the existence of that fact. Lambright v. State, 34 Fla. 564, 16 So. 582, 9 Am. Crim. Rep. 383, 1894; State v. Flanagan, 26 W. Va. 116, 1885. The fact constituting the basis of the corpus delicti is said, in some of the cases to be a distinct ingredient which must be established by the prosecution to a moral certainty, which may be taken to be equivalent to proof beyond reasonable doubt, and which signifies such proof as ex- cludes every reasonable hypothesis except that in support of which the evidence is offered. Com. v. Costley, 118 Mass. 1, 1875. —Method of proof of the corpus delicti; it is to be proved like any other fact, beyond a reasonable doubt; and where the prosecution has given sufficient evidence to en- title the case to go to the jury, it is competent to show a confession made by the prisoner connecting him with the crime. If the evidence sat- isfies the jury beyond a reasonable doubt that the crime has been com- mitted, they are at liberty to give the confession such weight as it is entitled to, taking into view the CRIMINAL LAW. [§ 363 462 to an acquittal.? But it is to be noted that those decisions which hold that the corpus delicti must be proved beyond a reasonable doubt mean simply that the criminal act must be thus established before evidence can be introduced as to the accused’s criminal agency in connection therewith.? The corpus delicti may be shown by any evidence which establishes that fact beyond a reasonable doubt.* And whether the corpus delicti be estab- lished by direct ® or circumstantial evidence, the legal test of its sufficiency is whether it satisfies the understanding and con- science of the jury beyond a reasonable doubt. circumstances surrounding it and the extent to which it has been corrob- orated. Gray v. Com. 101 Pa. 380, 47 Am. Rep. 733, 1882. Texas Penal Code, art. 459, pro- vides that “no person shall be con- victed of any grade of homicide un- less the body of the deceased, or por- tions of it, are found and sufficiently identified to establish the fact of killing;” wherefore, it is held that, in order to sustain a conviction of culpable homicide, it is indispensable that a dead body, or portions of a dead body, be found, and be clearly proved to be the body, or portions of the body, of the person alleged to have been killed. It is equally in- dispensable that the death of the al- leged dead person be clearly estab- lished before a conviction can be had, however cogent may be the other facts proved against the defendant; and the authorities concur that this proof must be clear and satisfactory beyond a reasonable doubt, and that not even the extrajudicial confes- sion of the accused, that he killed the person alleged to have been killed, will, uncorroborated by other evidence of the death, be sufficient to warrant conviction. State, 14 Tex. App. 609, 1884. Walker v. 1876. 2Com. v. York, 9 Met. 92, 43 Am. Dec. 378, 1845; Gray v. Com. 101 Pa. 380, 47 Am. Rep. 733, 1882. 3[Cal.] People v. Jones, 31 Cal. 565, 1867. [Iowa] State v. Keeler, 28 Iowa, 551, 1870. [Minn.] State v. Hogard, 12 Minn. 293, Gil. 191, 1866. [Miss.] Pitts v. State, 43 Miss. 472, 1870. [Mo.] State v. Scott, 39 Mo. 424, 1867; State v. Dickson, 78 Mo. 488, 1883. [N. Y.] People v. Schryver, 42 N. Y. 1, 1 Am. Rep. 480, 1870. [Tex.] Brown v. State, 1 Tex. App. 154, 1876; Black v. State, 1 Tex. App. 368, 1876. [Vt.] State v. Davidson, 30 Vt. 377, 73 Am. Dec. 312, 1858. [Va.] Smith v. Com. 21 Gratt. 809, 1871. 4 Anderson v. State, 24 Fla. 139, 3 So. 884, 1888; Timmerman v. Ter- ritory, 3 Wash. Terr. 445, 17 Pac. 624, 1888. 5 See supra, § 351. 6 See supra, § 352. Probable and presumptive evi- dence, proof of the corpus delicti made by, must be strong and cogent, and leave no room for a reasonable doubt. State v. Dickson, 78 Mo. 438, 1883. 7 Brown v. State, 1 Tex. App. 154, CHAPTER XII. JUVENILE COURTS. § 364. § 365. § 366. § 367. § 368. § 369. § 370. § 371. § 372. § 373. § 374. § 375. Character of juvenile courts. —Right of appeal. The common law and the child. Juvenile crime; prevalence and extent of. Introduction of juvenile courts. Moral responsibility of juvenile offenders. Purpose and theory of juvenile courts. Constitutionality of acts establishing juvenile courts. Courts which are to administer the act. Mode of trial; ex parte procedure. Probation system of juvenile courts. Jurisdiction of juvenile courts. § 364. The common law and the child. Under the com- mon law adopted in many of the states of the Union, as modi- fied by statute, a child above the age of seven years’ might be found guilty of a crime, and, upon the violation of a law, dealt with by the state in the same courts and under the same pro- cedure as adults charged with a violation of the criminal laws of the state. Under the administration of the criminal laws of England, many children have been executed by hanging or decapitation, or transported for life, for comparatively trivial 1Child under age of seven con- clusively presumed incapable of com- mitting crime. Heilman v. Com. 84 Ky. 457, 4 Am. St. Rep. 207, 1 8. W. 731, 1886. As to criminal liability of children generally, see note in 36 L.R.A. 196. —Age of defendant, in prosecution for larceny, has nothing to do with the question of guilt or innocence; it is important only in reference to the place of confinement during the term of imprisonment, under statute. Colip v. State, 153 Ind. 584, 74 Am. St. Rep. 322, 55 N. E. 739, 1899, Child over age of seven and under fourteen prima facie presumed in- capable of committing crime amount- ing to a felony; but this presumption may be rebutted. [Ala.] Martin v. State, 90 Ala. 602, 24 Am. St. Rep. 844, 8 So. 858, 1890. [Ky.] Heilman v. Com. 84 Ky. 457, 4 Am. St. Rep. 207, 1S. W. 731, 1886. [Tex.] Carr v. State, 24 Tex. App. 562, 5 Am. St. Rep. 905, 7 S. W. 328, 1888. See also supra, § 85. As to rebuttal of presumption as to incapability of infant to commit crime, see note in 36 L.R.A. 196. 463 464 CRIMINAL LAW. [§ 364 offenses.? The civil law, like the common law, made no dis- tinction in its treatment of offenders between those of tender and those of mature years.* § 365. Juvenile crime; prevalence and extent of. In all parts of the country there is an alarming amount of juvenile crime. This crime increases almost in geometrical proportion to the density of the populous districts in the large cities. Dur- ing the year 1908, in the first division in the childrens’ court in the city of New York alone, over 8,000 boys and girls under the age of sixteen years were convicted of criminal offenses; and the report of the probation commission of New York state shows that more than 9,000 boys and girls under sixteen years of age were placed on probation in that state during the year 1909. No adequate statistics are furnished by the Federal gov- ernment regarding juvenile delinquents and offenders, but it is said that investigations carried on in sixty of the largest cit- 2Many boys have been hung in England within the last century for offenses which are now denominated petty offenses; earlier they were be- headed for such offenses. At com- mon law there were about 200 differ- ent offenses punishable with decapi- tation, and the law made no dis- tinction between offenders of tender years and hardened criminals. 8 The schoolmaster’s protest. The first protest against the manifest in- justice of the common-law treatment of juvenile offenders was made by an old schoolmaster, in the course of which he said: “The Old Bailey court, in proportion of the numbers, as often sentenced boys as man to transportion for fourteen years and life. Nothing can be more absurd than the practice of passing sentence of death on boys under fourteen years of age for petty offenses. I have known five in one session in this awful situation; one for stealing a comb almost valueless, two for a child’s sixpenny story book, another for a man’s stock, and the fifth for pawning his mother’s shawl. In four of these cases the boys put their hands through a broken pane of glass in a shop window, and stole the articles for which they were sen- tenced to death, and subsequently transported for life. This act, in legal technicality, is housebreaking. The law presumes they break the glass, and it is probable in most cases they do so. In two of the eases here named, however, the prose- cutrix’s daughter told me there was only a piece of brown paper to sup- ply the place of that which once had been glass. In the latter case, the unfortunate mother caused her son to be apprehended, in the hopes of persuading the magistrate to recom- mend him to the Refuge for the Des- titute, or some other charitable in- stitution. She, however, in the course of her examination, said she was from home, and that the house was locked up at the time of the shawl being taken, which was after- wards found at a pawnbroker’s. This made it housebreaking; and, in spite of all the mother’s efforts, he was condemned to death. He is now in the penitentiary. The judges who award the punishments at the Old Bailey appear to me as if they were under the influence of sudden im- pulses of severity, there being at no time any regular system to be recog- nized in their proceedings. This the prisoners know, and speculate on, particularly the boys.” § 366] JUVENILE COURTS, 465 ies and towns of the Union justify the belief that over 100,000 children between the ages of six and sixteen are brought before police and court officials each year, to be dealt with for infrac- sions of the criminal laws, the offenses ranging all the way from slight misdemeanors up to larceny, robbery, and even man- slaughter.’ The magnitude of these figures forces upon all thinking people the conviction that the causes of this juvenile crime must be ferreted out, and, so far as practical, removed.” The first step toward the accomplishment of this much-desired end was the establishment of juvenile courts, § 366. Introduction of juvenile courts. The establish- ment of separate courts for juvenile offenders originated in this country within the present generation, at least in so far as their practical administration is concerned, coming rapidly into existence in the various states within the last decade. In 1863 the statute providing for separating the cases of children accused of criminal offenses from those of adult offenders was passed by the legislature of Massachusetts, but no effort seems to have been made to put this law into operation for a consider- able time thereafter. In 1877 a statute was passed by the leg- islature of New York, providing that children under sixteen years of age should not be put in company with adult offenders, either in prisons or in court rooms or in vehicles, except in the presence of proper officials; and the legislature of the same state, in 1892, provided that the cases of children under sixteen years of age, who were accused of crimes and misdemeanors, should be heard and determined separate and apart from the trial of other criminals, and that a separate docket of them should be kept. The first juvenile court, as these courts are now known, was established by the legislature of Illinois in 1899, and simi- lar courts were soon thereafter provided for by statutes in Colo- 1Ben B. Lindsey, the judge of the Denver juvenile court, says the num- ber of children thus dealt with in the Union may reach 200,000 annually. See 17 Case & Comment, 384. 2Burdett A. Rich has well said that “those areas in cities which are infested and fester with vice and crime, fashionable vices which the idle rich make more seductive by the glamour of their wealth and position, Crim. L. Vol. L—30. evil tendencies of many kinds cease- lessly working to undermine char- acter and make criminals of the young,—need to be dealt with in tremendous earnestness and with the sanest wisdom. But until the causes of youthful crime have been well- nigh abolished, we shall have the problem of caring for youthful of- fenders.” See 17 Case & Comment, 387, 466 CRIMINAL LAW. [§ 366 rado, Louisiana, and the various other states in which such courts are now in operation. The statutes in the various states providing for the organization and conduct of juvenile courts are the same in their general purpose, while varying as to the de- tails of conduct and methods of procedure; but it seems that in all of them the mode of trial is an ex parte proceeding.’ § 367. Moral responsibility of juvenile offenders. In recent years it has been recognized as a fact that the criminal tendencies among juvenile offenders may be developed by evil environment, physical defeets, or other causes which may pro- mote, if they do not create, permanent criminal character. The theory that crime is a “disease” has been advanced, and in some of the juvenile courts the offenders are treated upon that theory ; and the theory is in some instances worked to the point of ab- surdity by extremities. It has been well said that it is not only a probability, but in most instances a certainty, that when a boy or girl grows up in the slums of a large city, with noth- ing but vice and crime for environment and example, the growth of criminal tendencies is as inevitable as the physical growth. The enlightenment of to-day is bringing home to us the conviction that a vast amount of the juvenile crime prev- alent in the country is the direct and inevitable result of the conditions in which the unfortunate children have been left to grow up, and the theory of the juvenile courts is to exert every possible means of saving the unfortunate youths after they have begun to go wrong‘and have come into the grasp of the law for their evil doings.’ The General rule, as already shown,” that any person with sufficient intelligence and understanding to know the nature of a particular act, and that it is wrong, and is hurtful to an- other, or in violation of law, and deserves punishment, is liable to criminal prosecution therefor, even though the criminal act is prompted by irresistible impulse; * but some of the cases hold 1See infra, § 372. v. Barton, 3 Cox, C. C. 275; Reg. v. “Juvenile delinquent” is a term Haynes, 1 Fost. & F. 666; Reg. v. which may include any juvenile con- Burton, 3 Fost. & F. 772; Reg. v. victed of a felony. People v. Park, Pate, cited in 1 Bennett & H. Lead. 41 N. Y. 21, 33, 1869. Cas. 96. [Fed.] United States v. 1See 17 Case & Comment, 387. Holmes, 1 Cliff. 98, Fed. Cas. No. 2See supra, §§ 50 et seq. 15,382, 1858; United States v. Young, 8See among other cases: [Eng.] 25 Fed. 710, 1885; United States v. Reg, v. Stokes, 3 Car. & K. 185; Reg. Faulkner, 35 Fed. 730, 1888. [Cal.] § 367] JUVENILE COURTS. 467 that where the irresistible impulse is such as to deprive the per- son of the power to choose whether to do the act or not, this will relieve of criminal responsibility.* The theory that “dis- ease” may create an irresistible impulse to commit crime, and thus relieve from responsibility for the act, in one whose mental People v. Hoin, 62 Cal. 120, 45 Am. Rep. 651, 1882. [Ga.] Choice v. State, 31 Ga. 424, 1860; Anderson v. State, 42 Ga. 9, 1871; Fogarty v. State, 80 Ga. 450, 5 S. E. 782, 1888. [Kan.] State v. Nixon, 32 Kan. 205, 4 Pac. 159, 5 Am. Crim. Rep. 307, 1884; State v. Mowry, 37 Kan. 369, 15 Pac. 282, 1887; State v. Yarbor- ough, 39 Kan. 581, 18 Pac. 474, 1888. [La.] State v. Coleman, 27 La. Ann. 691, 1875. [Md.] Spencer v. State, 69 Md. 28, 13 Atl. 809, 1888. [Mass.] Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, 1844. [Minn.] State v. Scott, 41 Minn. 365, 43 N. W. 62, 1889. [Miss.] Cunningham v. State, 56 Miss. 269, 31 Am. Rep. 360, 1879. [Mo.] State v. Pagels, 92 Mo. 300, 48, W. 931, 1887. [N. J.] Graves v. State, 45 N. J. L. 347, 46 Am. Rep. 778, 1888. [N. Y.] Flanagan v. Peo- ple, 52 N. Y. 467, 11 Am. Rep. 731, 1878; Walker v. People, 88 N. Y. 81, 1882; People v. Carpenter, 102 N. Y. 238, 6 N. E. 584, 1886; People v. Montgomery, 13 Abb. Pr. N. 8. 207, 1871; People v. Waltz, 50 How. Pr. 204, 1874; People v. Coleman, 1 N. Y. Crim. Rep. 1, 1881. [N. C.] State v. Brandon, 53 N. C. (8 Jones, L. )463, 1862; State v. Potts, 100 N. C. 457, 6 S. E. 657, 1888. [Ohio] Clark v. State, 12 Ohio, 483, 40 Am. Dec. 481, 1843; Blackburn v. State, 23 Ohio St. 146, 1872. [S. C.] State v. Bundy, 24 8. 0. 439, 58 Am. Rep. 262, 1885; State v. Alexander, 30 S. C. 74, 14 Am. St. 879, 8 S. E. 440, 1888; State v. Levelle, 34 S. C. 120, 27 Am. St. Rep. 799, 13 S. E. 319, 1891. [Va.] Dejarnette v. Com. 75 Va. 867, 1881. [W. Va.] State v. Harrison, 36 W. Va. 729, 18 L.R.A. 224, 15 S. E. 982, 9 Am. Crim. Rep. 626, 1892. See note in 18 L.R.A. 225. “Tt strains the common sense of most people to believe that a banker of unblemished reputation and a life- time of upright business dealings, who, under the stress of temptation caused by his own bad investments, takes the risk of surreptitiously bor- rowing funds from his bank, think- ing he can soon repay them, and thus becomes an embezzler, is entitled to be absolved from either legal or moral responsibility on the ground that his crime was only the result of a disease.” Burdett A. Rich in 17 Case & Comment, 387. 4See among other cases: [Del.] State v. Windsor, 5 Harr. (Del.) 512, 1851; State v. Brown, 1 Houst. Crim. Rep. (Del.) 539, 1878. [Ind.] Stev- ens v. State, 31 Ind. 485, 99 Am. Dec. 634, 1869; Bradley v. State, 31 Ind. 492, 1869; Sawyer v. State, 35 Ind. 80, 1871; Walker v. State, 102 Ind. 502, 1 N. E. 856, 1885; Grubb v. State, 117 Ind. 277, 20 N. E. 257, 725, 1888. [Ky.] Graham v. Com. 16 B. Mon. 587, 1855; Scott v. Com. 4 Met. (Ky.) 227, 88 Am. Dec. 461, 1863; Smith v. Com. 1 Duv. 224, 1864; Kriel v. Com. 5 Bush, 362, 1869. [Mo.] Baldwin v. State, 12 Mo. 223, 1848; State v. Hundley, 46 Mo. 414, 1870; State v. Erb, 74 Mo. 199, 1881; State vy. Kotovsky, 74 Mo. 247, 1881. [N. H.] State v. Bartlett, 43 N. H. 224, 80 Am. Dec. 154, 1861; State v. Pike, 49 N. H. 399, 6 Am. Rep. 533, 1870; State v. Jones, 50 N. H. 369, 9 Am. Rep. 242, 1871. [Ohio] Farrer v. State, 2 Ohio St. 54, 1853. [Pa.] Com. v. Mosler, 4 Pa. 264, 1846; Ortwein v. Com. 76 Pa. 414, 18 Am. Rep. 420, 1 Am. Crim. Rep. 297, 1875; Brown v Com. 78 Pa. 122, 1875; Sayres v. Com. 88 Pa. 291, 1879; Coyle v. Com. 100 Pa. 578, 45 Am. Rep. 397, 1882; Taylor v. Com. 109 Pa. 262, 1885; Com. ex rel. Has- kell v. Haskell, 2 Brewst. (Pa.) 491, 1869; Com. v. Freth, 3 Phila. 105, 1858. See note in 18 L.R.A. 225. 468 CRIMINAL LAW. [§ 367 faculties are in a sound and normal condition, has not met with judicial indorsement in the courts of this country,® as applied to adult criminals, whatever may have been the theory and pro- cedure in the juvenile courts. § 368. Purpose and theory of juvenile courts. Juvenile courts are not cure-alls; they do much, but whatever they do must be done largely through the home, the school, and the church. It has been well said that they must bring into the life of the child the influences that come from those institutions, and therefore the appeal of the state must be to the home, the school, and the church; and that in dealing with his morals, in- stead of taking the child out of these three institutions of his life, and putting him in jail, he must be placed under those in- fluences that are as near akin to them as it is possible for the state to devise. The work of the juvenile judge is more than mere passing on the crimes and misdemeanors of childhood simply from a legal standpoint. It is philanthropic. The judge who deals out justice to the delinquent boy or girl must know humanity. He must understand the wellsprings of life from which come the causes of wrongdoing,—some of which is not in- tended to be wrong at all on the part of the wrongdoer. 5See among other cases: [Ala.] Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20, 1879; Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193, 2 So. 857, 7 Am. Crim. Rep. 266, 1887. [Ark.] Williams v. State, 50 Ark. 511, 9 S. W. 5, 1888; Bolling v. State, 54 Ark. 588, 16 S. W. 658, 1891; Smith v, State, 55 Ark. 259, 18 S. W. 237, 1891. [Conn.] State v. Johnson, 40 Conn. 136, 1873. [Del.] State v. West, 1 Houst. Crim. Rep. (Del.) 371, 1873. [Ind.] Guetig v. State, 66 Ind. 94, 32 Am. Rep. 99, 1879; Sanders v. State, 94 Ind. 147, 1883; Goodwin v. State, 96 Ind. 554, 1884; Conway v. State, 118 Ind. 482, 21 N. E. 285, 1888; Plake v. State, 121 Ind. 433, 16 Am. St. Rep. 408, 23 N. E. 273, 1890. [Iowa] Fouts v. State, 4 G. Greene, 500, 1854; State v. Felter, 25 Towa, 67, 1868; .State v. Stickley, 41 Towa, 232, 1875; State v. Mewherter, 46 Iowa, 88, 1877. [Mich.] People v. Finley, 38 Mich. 482, 1878; People v. Mortimer, 48 Mich. 37, 11 N. W. 776, 1882, People v. Durfee, 62 Mich. 487, The 29 N. W. 109, 1886. [Tex.] Leache v. State, 22 Tex. App. 279, 58 Am. Rep. 638, 3 S. W. 539, 1886. See note in 18 L.R.A. 225. 1“The state’s effort in this direc- tion may be seen in the development of industrial schools, training schools, parental schools, detention-home schools, the probation system, and that marvelous revolution in the law which came upon us about ten years ago in Colorado and in Illinois, when the child, for the first time in the history of jurisprudence, was no longer regarded by the state as a criminal, but rather as its ward; no longer looked upon as the malefactor, to be hung or degraded through the mire and filth of jails and criminal courts, but rather, as in the language of our own statute, ‘one to be aided, assisted, encouraged, educated;’ in a word, to be saved to good citizenship, to be redeemed as the most valuable asset of the state.” 17 Case & Com- ment, 384. § 369] JUVENILE COURTS. 469 juvenile court jurist must become acquainted with the history of each little culprit brought before him, and he must study the psychology of the child. More than that, to be successful, he must inspire the confidence of the little personality that he is supposed to punish.? § 369. Character of juvenile courts. Whether a juvenile court is a criminal court, a civil court, or a court of equity jurisdiction depends largely upon the statute creating such court. The English court of chancery, the general principals of which are applicable in the courts of this country, has always had power to protect children from gross ill treatment and cruelty, from being reared in immorality and vice, and the like, and even from their own parents, when the good of the children requires it." Under the act of the New York legisla- ture of 1892, the childrens’ court of the city of New York is a court of special sessions, or criminal court, bringing the juvenile offenders before it by arrest; but under later acts of the legis- lature of that state, establishing juvenile courts for the cities of Buffalo, Rochester, and other cities of the state, the lead set in statutes of the western states is followed, and those courts are made courts of civil, instead of criminal, procedure, in which de- linquent children are treated as the wards of the state, to be eared for and protected, not as criminals, to be convicted and punished.? Under the acts creating juvenile courts of Louis- 2This is the theory of Julian W. Mack, for many years a jurist of the Cook county circuit court of Chicago, in charge of the juvenile court of that county, at present « member of the United States commerce court. “He held the Parker fellowship at Harvard for three years following his graduation from that institution, in 1887. He afterwards studied in Ber- lin and Leipsic, and has been for years professor of law either in the Northwestern University at Evans- ton, Illinois, or in the University of Chicago, and in his work on the bench in Chicago, had a wide range of experience, He is big of heart as well as big of mind, and that fact made him for three years judge of the juvenile court in Chicago, when juvenile courts were new, and he un- derstands the heart of a ragged street urchin as well as he does the mental processes of a railroad statis- tician, and it is not at all improbable that he has a deeper regard away down in his kindly heart for the street arab than for the brainy transportation magnates who come before him in his new position.” 10 California Outlook No. 12, p. 12. 1See note by Burdett A. Rich in 37 L.R.A. 783-787, in which the cases are fully collected. 2The system of dealing with de- linquent children which “treats the children as wards of the state, to be protected, rather than as criminals, and saves them from the stigma of a conviction for crime, is unquestion- ably in advance of a system that treats them as criminals, and deals with them, however leniently, as con-. victs. The stigma of being a criminal is uot a help in saving a boy from a criminal career.” 17 Case & Com- ment, 389, CRIMINAL LAW. [g 369 470 iana,® and of most, if not all, of the central and western states, the juvenile courts are created as tribunals exercising chancery jurisdiction, rather than courts exercising criminal jurisdiction.* These courts have not come quietly into existence without strong opposition both from criminally inclined juveniles and from that class of “conservative” lawyers whose footsteps are guided entirely by the light of the past,—by the glimmer of the dying torch of the Dark Ages, who are guided by “precedent” rather than by principle, and are ever found planted in the pathway of civic advancement. But these laws have, in the main, been up- held; ® and where not upheld, it was due to defect in drafting the act, and not to the fact that the principle upon which such courts rest is disapproved.® § 370. Constitutionality of acts establishing juvenile courts. The constitutionality of statutes authorizing the es- tablishment of juvenile courts and giving exclusive jurisdiction over all infantile offenders against the laws, between the ages of six and sixteen,’ and of statutes authorizing the commitment Not for punishment of offenders, but salvation of children, such stat- ute is enacted; it points out the way by which the state undertakes to save, not particular children of a special class, but all children under a certain age, whose salvation may become the duty of the state in the absence of parental care, or disregard of that care by wayward children. No child under the age of sixteen is excluded from its beneficent pro- visions. Its protecting arm is for all who have not attained the desig- nated age and who may need its pro- tection. Com. v. Fisher, 213 Pa. 48, 62 Atl. 198, 5 A. & E. Ann. Cas. 92, 1905, 8 Louisiana law is founded upon the civil law instead of upon the common law; in it equity courts take their origin and dominate that sys- tem of laws. 4See 17 Case & Comment, 389. 5 See notes in 18 L.R.A.(N.S.) 886; 5 A. & E. Ann. Cas. 96; 7 A. & E. Ann. Cas, 831; and 14 A. & E. Ann. Cas. 819. See also infra, § 370. 6 See note in 3 L.R.A.(N.S.) 564. 1[Fla.] Pugh v. Bowden, 54 Fla. 302, 45 So. 499, 14 A. & E. Ann. Cas. 816, 1907. [Idaho] Re Sharp, 15 Idaho, 120, 18 L.R.A.(N.S.) 886, 96 Pac. 563, 1908. [Mo.] Ex parte Lov- ing, 178 Mo. 194, 77 S. W. 508, 1903. [Pa.] Com. v. Fisher, 213 Pa. 48, 62 Atl 198, 5 A. & E. Ann. Cas. 92, 1905. [Utah] Mill v. Brown, 31 Utah, 473, 88 Pac. 609, 120 Am. St. Rep. 395, 1907. Compare: Hunt v. Wayne Circuit Judges, 142 Mich. 98, 3 L.R.A.(NS.) 564, 105 N. W. 531, 7 A. & E. Ann. Cas. 821, 1905 (act held unconstitu- tional because of the manner in which drafted and to be admin- istered; power of legislature by act to provide for and establish juvenile courts to be administered through established constitutional courts, or through courts specially created for that purpose, was not questioned) ; Hooper v. McKenzie, 142 Mich. 120, 105 N. W. 541, 1905. A statute creating juvenile courts and prescribing their functions is not unconstitutional under a constitu- tional provision against amending § 370] JUVENILE COURTS. 471 of such offenders, without trial by jury, to reformatories, houses of correction, industrial schools, tablished to admit of a doubt.? any law without setting forth the new section as amended. This stat- ute is not intended as an amendment of any other law, and if it has such effect, it is incidental and by impli- cation merely. This prohibition was not intended to prevent new legisla- tion that may ineidently affect earlier laws. Mill v. Brown, 31 Utah, 478, 120 Am. St. Rep. 935, 936, 88 Pac. 609, 1907. Pennsylvania statute, act April 23, 1903 (P. L. 274), entitled “An Act Defining the Powers of the Several Courts of Quarter Sessions of the Peace within this Commonwealth, with Reference to the Care, Treat- ment, and Control of Dependent, Neg- lected, Incorrigible, and Delinquent Children under the Age of Sixteen Years, and Providing for the Means in which such Power May be Exer- cised,” is not unconstitutional as con- taining more than one subject, some of which are not expressed in the title, or as providing for different punishments for the same offense by a classification of individuals, or as creating a new court, or as denying due process of law or the right of trial by jury. Com. v. Fisher, 213 Pa. 48, 62 Atl. 198, 5 A. & E, Ann. Cas. 92, 1905. 2See: [Cal.] Ex parte Liddell, 93 Cal. 633, 29 Pac. 251, 1892; Ex parte Nichols, 110 Cal. 651, 43 Pac. 9, 1896. [Conn.] Reynolds v. Howe, 51 Conn. 472, 1883; Whalen v. Olmstead, 6 Conn. 263, 15 L.R.A. 593, 23 Atl. 964, 1891. [D. C.] Rule v. Geddes, 23 App. D. C. 31, 1901. [Fla.] Pugh v. Bowden, 54 Fla. 302, 45 So. 499, 14 A. & E. Ann. Cas. 816, 1907. [Idaho] Re Sharp, 15 Idaho, 120, 18 L.R.A. (N.S.) 886, 96 Pac. 563, 1908. [Ill.] Re Ferrier, 103 Ill. 367, 42 Am. Rep. 10, 1882; McLean County v. Hum- phreys, 104 Ill. 378, 1882; People ex rel. Ives v. Amigh, — Ill. C. C. —, 38 Chicago, Leg. News, p. 20 (circuit court of Cook county). [Ind.] Jar- rard v. State, 116 Ind. 98, 17 N. E. 912, 1888; Children’s Guardians v. Shutter, 139 Ind. 268, 31 L.R.A. 740, and the like, is now too well es- In such proceedings due regard 34 N. E. 665, 1893; Dinson v. Drosta, 39 Ind. App. 432, 80 N. E. 32, 1907. [Kan.] Re Gassaway, 70 Kan. 695, 79 Pac, 113, 1905. [Me,] Hibbard v. Bridges, 76 Me. 324, 1884. [M4d.] Roth v. House of Refuge, 31 Md. 329, 1869; St. Mary’s Industrial School v. Brown, 45 Md. 310, 1876. [Mass.] Farnham v. Pierce, 141 Mass. 203, 6 N. E. 830, 55 Am. Rep. 452, 1886; Re Kelley, 152 Mass. 432, 25 N. E. 615, 1890; Re Wares, 161 Mass. 70, 36 N. E. 586, 1894. [Minn.] State ex rel. Olson v. Brown, 50 Minn. 353, 16 L.R.A. 691, 36 Am. St. Rep. 651, 52 N. W. 935, 1892. [Mo.] Ex parte Loving, 178 Mo. 194, 77 S. W. 508, 1903. [Neb.] Baker v. State, 60 Neb. 691, 84 N. W. 85, 1900; Seott v. Flowers, 61 Neb. 620, 85 N. W. 857, 1901. [IN. Y.] People ex rel. Van Heck v. New York Catholic Protectory, 101 N. Y. 195, 4 N. E. 177, 1876; People ex rel. Zeese v. Masten, 79 Hun, 580, 29 N. Y. Supp. 891, 1894; People ex rel. Sanfilippo v. New York Catholic Protectory, 38 Misc. 660, 78 N. Y. Supp. 232, 1902. [N. D.] State ex rel. Kol v. North Dakota Children’s Home Soc. 10 N. D. 493, 88 N. W. 278, 1901. [Ohio] Prescott v. State, 19 Ohio St. 184, 2 Am. Rep. 388, 1869; Cincinnati House of Refuge v. Ryan, 37 Ohio St, 197, 1881. [Pa.] Ex parte Crouse, 4 Whart. 9, 1838; Com. v. Fisher, 218 Pa. 48, 62 Atl. 198, 5 A. & E. Ann. Cas. 92, 1905; Mansfield’s Case, 22 Pa. Super. Ct. 224, 1908. [Tenn] State ex rel. Bethell v. Kilvington, 100 Tenn. 227, 41 L.R.A. 284, 45 S. W. 483, 1898. [Wash.] Re Barbee, 19 Wash. 306, 53 Pac. 155, 1898. [Wis.] Milwaukee Industrial School v. Milwaukee County, 40 Wis. 328, 22 Am. Rep. 702, 1876; Wisconsin Industrial School v. Clark County, 103 Wis. 651, 79 N. W. 422, 1899. Compare: [Ill.] People v. Turner, 55 Ill. 280, 8 Am. Rep. 645, 1870. [Me.] Portland v. Bangor, 65 Me. 120, 20 Am. Rep. 681, 1876. [N. H.] State ex rel. Cunningham v. Ray, 63 N. H. 406, 56 Am. Rep. 529, 1885. 472 CRIMINAL LAW. [§ 370 must in all cases be paid to the interests and rights of the chil- dren; but when a child is brought into court under the law, in the interest and for the benefit of the child, and when the de- tention is manifestly for the welfare of the child, such deten- tion will be allowed, and the child required to remain in the institution.® Such statutes are not penal in their nature, and commitment under them to public houses or institutions of the [R. I.] Doyle’s Petition (Re Gannon) 16 R. I. 537, 5 L.R.A. 359, 27 Am. St. Rep. 759, 18 Atl. 159, 1889. As to commitment without convic- tion of minors, to reformatories, ete., see note in 16 LL.R.A. 691. One of the most important duties which organized society owes its helpless members is performed just in the measure that the law is framed with wisdom and is carefully administered. Com. v. Fisher, 213 Pa, 48, 62 Atl. 198, 5 A. & HE. Ann. Cas. 92, 1905. Power to place children under proper guardianship has been exer- cised by chancellors and judges who have chancery powers, from time im- memorial. Wisconsin Industrial School v. Clark County, 103 Wis. 651, 79 N. W. 422, 1899; Wellesley v. Wellesley, 2 Bligh. N. R. 142, 1828 (in this case Lord Redesdale said that the right of a chancellor to exercise such powers has not been questioned in 150 years). The public has paramount interest in the virtue of each of its members, and of strict right the business of education belongs to it. Parents are usually intrusted with the care, cus- tody, control, and education of their children, because it can seldom be put in better hands, but when they are incompetent or corrupt, immoral or dissolute, these faculties held, as they obviously are, at the public suffer- ance, may be withdrawn. The right of parental control is a natural, but not an inalienable, one. Ex parte Crouse, 4 Whart. 9, 1838; Com. v. Fisher, 213 Pa. 48, 62 Atl. 198, 5 A. & E. Ann. Cas. 92, 1905. Restrictions imposed upon personal liberty which spring from the help- less or dependent condition of in- dividuals in the various relations of life, among them being those of par- ent and child, guardian and ward, teacher and scholar, over which there are well-recognized powers of control which may be exercised by the state, are legal and just restrictions upon personal liberty which the welfare of the state demands, and which, where there is no abuse, are entirely con- sistent with the constitutional guar- anty of liberty. Re Ferrier, 103 Il. 367, 42 Am. Rep, 10, 1882. —Proper restraint, which the child’s welfare and the good of the community manifestly require, and which readily appertains to the rela- tion of the child as a ward of the state, does not constitute any in- vasion of the right of personal lib- erty, within the provisions of the Constitution. ([Ill.] Re Ferrier, 103 Ill. 367, 42 Am. Rep. 10, 1882. [Md.] Roth v. House of Refuge, 31 Md. 329, 1869. [Ohio] Prescott v. State, 19 Ohio St. 184, 2 Am. Rep. 388, 1869. [Pa.] Ex parte Crouse, 4 Whart. 9, 1838. [Wis.] Milwaukee Industrial School v. Milwaukee County, 40 Wis. 328, 22 Am. Rep. 702, 1876. As to restraint on freedom of child as impairment of child’s constitution- al rights, see note in 18 L.R.A.(N.S.) 886. 3 State ex rel. Bethell v. Kilving- ton, 100 Tenn. 227, 41 L.R.A. 284, 45 S. W. 433, 1898. See [Ga.] Ballenger v. McLain, 54 Ga. 159, 1875. [Ill] Re Ferrier, 103 Ill. 367, 42 Am. Rep. 10, 1882. [Mass.] Farnham v. Pierce, 141 Mass. 203, 55 Am. Rep. 452, 6 N. E. 830, 1886. [N. Y.] People ex rel. Van Heck v. New York Catholic Pro- tectory, 38 Hun, 127, 1885. [Pa.] Ex parte Crouse, 4 Whart. 9, 1838; Com. ex rel. Barnes v. St. John’s Orphan Asylum, 9 Phila. 579, 1872. [Wis.] Milwauke Industrial School v. Milwaukee County, 40 Wis. 328, 22 Am, Rep. 702, 1876. § 370], JUVENILE COURTS. 473 character named is not in the nature of punishment.* The pro- vision of the statute is a provision by the state, under necessity, as parens patrie, for the custody and care of neglected, incor- 4Industrial schools, reformatories, and houses of correction, to which juvenile offenders, delinquents, and incorrigibles may be committed, are not regarded as prisons and peniten- tiaries, but as schools where those in- fants who are exposed by conditions of misfortune, or who personally ex- pose themselves, to immoral and vi- cious surroundings and influences, may, for their moral and physical well-being, be kept. under reasonable restraint fromcrime. [D.C.] Rule v. Geddes, 23 App. D. C. 31, 1901. [IIL] McLean County v. Humphreys, 104 Ill. 378, 1882. [Mass.] Farnham v. Pierce, 141 Mass. 203, 55 Am. Rep. 452, 6 N. E. 830, 1886. [Minn.] State ex rel, Olson v. Brown, 50 Minn. 353, 16 L.R.A. 691, 36 Am. St. Kep. 651, 52 N. W. 935, 1892. [Neb.] Scott v. Flowers, 61 Neb. 620, 85 N. W. 857, 1901. [Ohio] Cincinnati House of Refuge v. Ryan, 37 Ohio St. 197, 1881. [Wis.] Milwaukee Indus- trial School v. Milwaukee County, 40 Wis. 328, 22 Am. Rep. 702, 1876. The statutes are in no sense crimi- nal, and are not intended to provide punishment, but to save the child from becoming a criminal, and are hence not unconstitutional, though they do not provide for trial by jury, or arraignment and plea, nor notice to the parent, or a warrant of arrest, and require the child to be a witness against himself. Mill v. Brown, 31 Utah, 473, 120 Am. St.-Rep. 935, 88 Pac. 609, 1907. In regard to this subject, Mr. Jus- tice Ryan says, in the case of Mil- waukee Industrial School v. Milwau- kee County, supra: “We cannot un- derstand that the detention of the child at one of these schools should be considered as imprisonment, any more than its detention in the poor- house,—any more than the detention of any child at any boarding school standing, for the time, im loco pa- rentis to the child, Parental author- ity implies restraint, not imprison- ment. And every school must neces- sarily exercise some measure of pa- rental power of restraint over chil- dren committed to it. And when the state, as parens patrie, is compelled, by the misfortune of a child, to as- sume for it parental duty, and to charge itself with its nurture, it is compelled also to assume parental authority over it. This authority must necessarily be delegated to those to whom the state delegates the nurture and education of the child. The state does not, indeed we may say could not, intrude this as- sumption of authority between par- ent and child standing in no need of it. It assumes it only upon the des- titution and necessity of the child, arising from want or default of par- ents. And, in exercising a whole- some parental restraint over the child, it can be properly said to imprison the child no more than the tenderest parent exercising like power of re- straint over children. This seems too plain to need authority; but the cases cited for the respondent and others amply sustain our view.” . Florida Laws of 1905, § 9 of chap. 5388, in so far as it confers jurisdiction upon the judge of any circuit court or upon a county judge, to commit to the state reform school persons over ten and under eighteen years of age, who are guilty of in- corrigible or vicious conduct, is con- stitutional. Pugh v. Bowden, 54 Fla. 302, 45 So. 499, 14 A. & E, Ann. Cas, 816, 1907. —Idaho act of March 2, 1905 (Sess. Laws 1905, p. 106) entitled “An Act to Provide for the Care of Delinquent Children,” is not a penal or criminal statute in its nature, but is rather paternal, benevolent, and charitable in its purposes and operation, and is intended to confer and grant favors, privileges, and opportunities, rather than to impose penalties, burdens, or exactions. Re Sharp, 15 Idaho, 120, 18 L.R.A.(N.S.) 886, 96 Pac. 563, 1908. As to state guardianship of chil- dren, see note in 15 L.R.A. 593. 474 CRIMINAL LAW. [§ 370 rigible, or criminally inclined children, and is intended to supply to them that parental custody and care and restraint which their welfare, and the interests of the state in the wel- fare of the children, require, which parental custody, or the parental right to the custody, the parents have for any reason surrendered or lost. This power, however, is to be exercised in case of necessity only; but the common-law principle of rea- sonable necessity has an extensive constitutional operation.® § 371. Courts which are to administer the act. The legislature of a state may define the status of infants requiring state guardianship, and may enforce state control and education of infants coming within the class so defined,’ and may delegate the administering and enforcement of the act to courts already in existence and having jurisdiction over the subject-matter, or may create entirely new courts for that purpose.” The fact that certain powers and duties may be exercised by certain courts already in existence does not prohibit the legislature from cre- ating new courts, and conferring upon them like powers and duties, under a constitutional provision declaring that judicial power shall be vested in a supreme court, in district courts, in courts of justices of the peace, and in such other courts infe- 5 [Ill.] Re Ferrier, 103 Ill. 367, 42 Am. Rep. 10, 1882; McLean County 143. [Vt.] Johnson v. Perry, 56 Vt. 703, 48 Am. Rep. 826, 1884. v. Humphreys, 104 Ill. 378, 1882. [Md.] Roth v. House of Refuge, 31 Md. 329, 1869. [Mass.] Farnham v. Pierce, 141 Mass. 203, 55 Am. Rep. 452, 6 N. E. 830, 1886. [Ohio] Pres- cott v. State, 19 Ohio St. 184, 2 Am. Rep. 388, 1869; Cincinnati House of Refuge v. Ryan, 37 Ohio St. 197, 1881. [Pa.] Ex parte Crouse, 4 Whart. 9, 1838. [Wis.] Milwaukee Industrial School v. Milwaukee Coun- ty, 40 Wis. 328, 22 Am. Rep. 702, 1876. 6[N. H.] State ex rel. Cunningham v. Ray, 63 N. H. 406, 56 Am. Rep. 529, 1885. See Colby v. Jackson, 12 N. H. 526, 1842; Davis v. Merrill, 47 N. H. 208, 1866; Aldrich v. Wright, 53 N, H. 398, 16 Am. Rep, 339, 1873; Haley v. Colcord, 59 N. H. 7, 47 Am. Rep. 176, 1879; Hopkins v. Dickson, 59 N. H. 235, 1879; State v. Morgan, 59 N. H. 322, 1879; O’Connor v. Bucklin, 59 N. H. 589, 1879. [Pa.] Hinchman vy. Richie, Brightly (Pa.) 1 Hunt v. Wayne Circuit Judges, 142 Mich. 98, 3 L.R.A.(N.S.) 564, 105 N. W. 531, 7 A. & E. Ann. Cas. 821, 1905. Classification of children in the in- terest of public welfare is a right that has never been questioned in the legislation relating to them. Com. v. Fisher, 213 Pa. 48, 62 Atl. 198, 5 A. & E. Ann. Cas. 92, 1905. —Legislature may make a classifi- cation so affecting cities of the first and second classes that juvenile courts may be created for such cities, and the powers of such courts left elsewhere to the district courts, Mill v. Brown, 31 Utah, 478, 120 Am. St. Rep. 935, 88 Pac. 609, 1907. 2 Legislature may create a court or courts wherein juvenile offenders may be dealt with, although they were formerly dealt with in other courts. Mill v. Brown, 31 Utah, 473, i ae St. Rep. 935, 88 Pac. 609, § 372] JUVENILE COURTS. 475 rior to the supreme court as may be established by law from time to time.? The legislature, however, cannot confer upon mere court commissioners, whose constitutional jurisdiction is merely that of a judge at chambers, powers with reference to juvenile offenders, which require proceedings within the power of courts cf record only.* And a statute creating juvenile courts for the care, nurture, protection, and education of dependent and de- linquent children, will be invalid in so far as it undertakes to pronounce the parent of the delinquent child guilty of a mis- demeanor in certain cases therein specified, but fails to provide for a trial by jury of the charge against such parent; but this invalidity as to the parent will not affect the provision in re- lation to the dependent or delinquent child, and the statute is therefore not unconstitutional or void as to the infant.° § 372. Mode of trial; ex parte procedure. The method of procedure under acts creating juvenile courts is by citation, and not by arrest, and is ex parte,’ without the intervention of a 3 Mill v. Brown, 31 Utah, 478, 120 Am. St. Rep. 935, 88 Pac. 609, 1907. See Pugh v. Bowden, 54 Fla. 302, 45 So. 499, 14 A. & E. Ann. Cas. 816, 1907;Marlowe v. Com. 142 Ky. 106, 133 S. W. 1137, 1911. See note in 14 A. & E. Ann. Cas. 819. Act intended for general operation throughout the state, conferring ju- risdiction over juvenile offenders, by which unconstitutional powers are conferred in some counties upon the officers designated to execute the law, cannot be mutilated or amended by the courts so as to be given effect in counties as to which the provisions are unobjectionable. Hunt v. Wayne Circuit Judges, 142 Mich. 93, 3 L.R.A. (N.S.) 564, 105 N. W. 531, 7 A. & E. Ann. Cas. 821, 1905. 4Hunt v. Wayne Circuit Judges, 142 Mich. 93, 3 L.R.A.(N.S.) 564, 105 N. W. 531, 7 A. & E. Ann. Cas. 821, 1905. Michigan juvenile court act (Pub. Acts 1905, act No. 312) is unconsti- tutional as conferring upon circuit court commissioners powers other than those which the state Constitu- tion permits them to exercise; and the statute is invalid throughout the state, and is not merely inoperative in those counties wherein it attempts to confer excessive jurisdiction upon such commissioners. Hunt v. Wayne Circuit Judges, 142 Mich. 93, 3 L.R.A. (N.S.) 564, 105 N. W. 531, 7 A. & E, Ann. Cas. 821, 1905. 5 Mill v. Brown, 31 Utah, 473, 120 Am. St. Rep. 935, 88 Pac. 609, 1907. State’s power restricted, not un- limited and arbitrary, and is confined to cases in which there is lack of parental care, the existence of an im- proper environment, and the like. Ex parte Watson, — N. C. —, 72 8. E. 1049, 1911. 1Notice of commitment proceed- ings may not be required, and a fail- ure of the act to provide for such notice will not affect the validity of the statute. Cincinnati House of Refuge v. Ryan, 37 Ohio St. 197, 1881. Notice not required to infant under fourteen years of age in proceeding for appointment of guardian. Chil- dren’s Guardians v. Shutter, 139 Ind. 268, 31 L.R.A. 740, 34 N. E. 665, 1893. Such an appointment does not de- prive the infant of any of its rights of property, or injuriously affect its rights in that regard. An officer of 476 CRIMINAL LAW. [§ 372 jury.? In regard to the rights and interests of the child, it has. been held that for the state thus to take charge, care, and cus- tody of a minor, for the purpose of protecting, educating, and training him, is not depriving him of his liberty* without due process of law, within the purview and meaning of the Consti- tution;* and the further fact that there is an authorization of the commitment by a judge of a designated court, without. a trial by jury,® of dependent or delinquent children over a designated age and under a designated age, who are guilty of incorrigible or vicious conduct and the like, is not an in- fringement of the constitutional rights of the child.® the court is appointed to wield the power of an arm of a court of equity. and no notice to the infant is re- quired. Children’s Guardians v. Shut- ter, 139 Ind. 268, 31 L.R.A. 740, 34 N. E. 665, 1893. See ([Conn.] Reynolds v. Howe, 51 Conn. 472, 1883. [Mass.] Re Gibson, 154 Mass. 378, 28 N. E. 296, 1891. [Minn.] Kurtz v. St. Paul & D. R. R. Co. 48 Minn. 339, 31 Am. St. Rep. 657, 51 N. W. 227, 1892. Parent or guardian is not a nec- essary party to the proceedings in juvenile courts, and cannot be bound by a judgment respecting his rights to the custody and control of the child, yet it is proper to give such formal notice to such parent or guardian, to the end that all the facts may be elicited by the investi- gation. Mill v. Brown, 31 Utah, 473, 120 Am. St. Rep. 9385, 88 Pac. 609, 1907. 2 Jury trial in such proceedings is not required, because the proceeding is not a trial for an offense requiring either a common-law or any other jury. Com. v. Fisher, 213 Pa. 48, 62 Atl. 198, 5 A. & HE. Ann. Cas. 92, 1905. Statute authorizing the grand jury, where an infant under the age of six- teen years is charged with crime, and the charge appears to be supported by evidence sufficient to put the ac- cused upon trial, instead of finding an indictment, to return to the court that the accused is a suitable person to be committed to a house of refuge, and directing the court thereupon to order the commitment without trial In all by jury, is constitutional. Prescott. v. State, 19 Ohio St. 184, 12 Am. Rep. 388, 1869. 3 Minor child is not entitled to ab-. solute and unqualified freedom and liberty, either by nature or the laws of the land, in the same sense as. those terms are applied to adults; but is rather, during his minority, subject to the restraint and custody of either his parents and natural guardians, or of a legally appointed guardian, to whom he owes obedience- and subjection; and it is not an in- fringement of any constitutional right of a minor for the state sum- marily to lay hold on him at such. time as he may be deprived or bereft of his parents or duly appointed guardian, and give to him the foster- ing care, protection, and education that would be due him from his par- ents or guardian. Re Sharp, 15. Idaho, 120, 18 L.R.A.(N.S.) 886, 96: Pac. 563, 1908. 4Re Sharp, 15 Idaho, 120, 18. L.R.A.(N.S.) 886, 96 Pac. 563, 1908. 5 Proceeding is wholly statutory,. and the party proceeded against is- not punished or imprisoned. State ex rel, Olson v. Brown, 50 Minn. 358,,. 16 L.R.A. 691, 36 Am. St. Rep. 651, 52 N. W. 985, 1892. See Mankato v. Arnold, 36 Minn. 62, 30 N. W. 305, 1886; State v. Harris, 50 Minn. 128,. 52 N. W. 387, 531, 1892. 6 Pugh v. Bowden, 54 Fla. 302, 45 So. 499, 14 A. & E. Ann. Cas. 816, 1907. Florida statute, in so far as it au- thorizes a judge of any criminal court. of record to commit to the state re- § 373] JUVENILE COURTS. 477 cases findings should be made in conformity with the facts, and judgment rendered in accordance therewith.? But where a statute creating juvenile courts, and providing for the ad- ministration of the act, declares that where a child is de- linquent, as defined by the act, his parent, being responsible for, or aiding, encouraging, causing, or contributing to, the delin- quency, shall be guilty of a misdemeanor, and may be brought before a court and examined, and, if found guilty, the court may impose conditions on him, and, as long as he complies therewith, may suspend the sentence, it is unconstitutional in so far as it relates to the parent, because it denies to him the right of trial by jury.’ § 373. —Right of appeal. It is thought that there is not an absolute and unqualified right of appeal from the judgment rendered in the juvenile court, or in the probate court exer- cising the powers and discharging the duties of a juvenile court, under the statute; on the contrary it is in the discretion of the legislature, which may confer or withhold the right of appeal in any and all matters coming before such court.’ form school, upon written complaint under oath, and without a jury trial, persons over ten and under eighteen years of age, who are guilty of in- corrigible or vicious conduct, con- travenes the provision of the Florida Constitution conferring jurisdiction on such courts to try criminal cases. The judge of a criminal court of rec- ord may commit to the state reform school only by virtue of the pro- visions of § 1 of the same statute, after regular conviction in said court . for crime. Pugh v. Bowden, 54 Fla. 302, 45 So. 499, 14 A. & E. Ann. Cas. 816, 1907. 7“While we do not wish to be understood as holding that investi- gations before juvenile courts must be conducted as trials usually are, still these courts should not disre- gard all rules of procedure. The law requires a written complaint to be filed, hence there should also be an investigation of the matters set forth in the complaint and witnesses examined, under oath, with the right of cross-examination. Since there is no appeal, and can be none in these cases, there should be as thorough This re- an examination into the matters complained of as the nature of the case admits, under all the circum- stances. The whole pro- ceedings should be conducted so as to subserve the rights and best inter- ests of all, while in no way minimiz- ing the beneficent purposes of the law itself. While, in the very nature of things, these courts cannot con- form to the rigorous rules of crim- inal and law courts, their proceedings should still be conducted as a legal investigation.” Mill v. Brown, 31 Utah, 473, 120 Am, St. Rep. 935, 88 Pac. 609, 1907. See also supra, § 371, footnote 4 and text therewith. 8 Mill v. Brown, 31 Utah, 473, 120 Am. St. Rep. 935, 88 Pac. 609, 1909. See note in 120 Am. St. Rep. 952- 967. Prosecution of adults under juve- nile acts should be conducted in the same manner as other criminal pros- ecutions. State v. Eisen, 53 Or. 297, 99 Pac. 282, 100 Pac. 257, 1909. 1Re Sharp, 15 Idaho, 120, 18 L.R.A.(N.S.) 886, 96 Pac. 568, 1908. Legislature may vest in juvenile 478 CRIMINAL LAW. [§ 373 lates to parties properly brought before the court in accordance with the provision of the act. It is a well-settled principle of law that no one is bound by a judgment or order of a court who is not made a party to the proceedings, and has not had his day in court, except parties and privies in interest.? A parent or guardian not a party to such proceedings, who deems himself improperly or unlawfully deprived of the custody of his child or ward by the action or order of the court under the delinquent childrens’ act, has his remedy in a proper proceeding in the court to test and determine his rights, and the authority under which he has been deprived of such rights.* Under the provi- sions of the act providing for the care of delinquent children, an order of the court directing that a delinquent child be sent to the state industrial training school, or to other institution of like character, and be there detained for a fixed period of time, acts upon the child in personam, and is not binding upon the parent or guardian unless the latter is made a party to the pro- ceeding in the court; and in such cases, if the order runs against the parent or guardian, or in any way affects his rights as natural or legal guardian, he has the right of appeal.* § 374. Probation system of juvenile courts. The re- formatory work of juvenile courts is largely carried on through what may be termed a probationary system of surveillance, in which the judge of the court requires the little culprit to re- port at stated intervals, and in the meantime to conduct him- self in a manner directed by the judge. This is the most im- portant factor in the successful working out of the scheme of any children’s court. Its value is so marked, and its power for good in shaping the conduct and molding the character of the courts in cities of the first and sec- ond class exclusive jurisdiction of juvenile offenders, where the object is to relieve the overcrowded courts in those cities of this burden. Mill v. Brown, 31 Utah, 473, 120 Am. St. Rep. 935, 88 Pac. 609, 1907. See infra, § 375. Under Idaho Constitution, art. V. § 21, probate courts “have original jurisdiction in all matters of probate 2 ok and appointment of guard- ians;” and under and by virtue of such constitutional power and juris- diction, it is competent for the legis- lature to authorize and direct probate courts to make investigations of charges preferred concerning delin- quent children, and to make all nec- essary orders in relation thereto, as has been provided by the act of March 2, 1905, entitled “An Act to Provide for the Care of Delinquent Children.” Sess. Laws 1905, p. 106. Re Sharp, 15 Idaho, 120, 18 L.R.A. (N.S.) 886, 96 Pac. 563, 1908. 2Re Sharp, 15 Idaho, 120, 18 L.R.A.(N.S.) 886, 96 Pac. 563, 1908. 3 Tbid. 4 Ibid. § 374] JUVENILE COURTS. 479 small offenders is so great, that courts for adult offenders have adopted it in dealing with more hardened criminals. The right of the court for adult offenders to suspend sentence on one convicted of a criminal charge, and hold the suspended sentence as a “hostage” to guarantee the future good conduct of the convicted party, has not gone without challenge,—some of the courts holding the right to be inherent in a court of record,’ while in others the power is denied to the trial court,” it being held that a trial court cannot postpone, from time to time, the date at which imprisonment shall begin after a valid judgment has been rendered and sentence passed.® 12 Hawk. P. C. chap. 51, § 8; 4 Bl. Com. chap. 31. [Cal.] Re Collins, 8 Cal. App. 367, 97 Pac. 188, 1908. [Colo.] Mann v. People, 16 Colo. App. 475, 66 Pac. 452, 1901. [Mass.] Com. v. Dowdican, 115 Mass. 136, 1874; Com. v. Maloney, 145 Mass. 205, 13 N. E. 482, 1887. [Mich.] People v. Riel- ly, 58 Mich. 260, 18 N. W. 849, 1884; People v. Stickle, 156 Mich. 557, 121 N. W. 497, 1909. [N. H.] Sylvester v. State, 65 N. H. 193, 20 Atl. 954, 1889. [N. J.] State v. Addy, 43 N. J. L. 113, 39 Am. Rep. 547, 1881. [N. Y.] People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 23 L.R.A. 856, 86 N. E. 386, 15 Am. Crim. Rep. 675, 1894; People v. Har- rington, 15 Abb. N. C. 161, 1884; Peo- ple v. Whipple, 9 Cow. 715, 1827; People v. Graves, 31 Hun, 382, 1884; Carnal v. People, 1 Park. Crim. Rep. 262, 1851. [N. C.] State v. Cocker- ham, 24 N. C. (2 Ired. L.) 204, 1842; » State v. Crook, 115 N. ©. 760, 29 L.R.A. 260, 20 S. EB, 513, 1894. [Ohio] Weber v. State, 58 Ohio St. 616, 41 L.R.A. 472, 51 N. E. 116, 1898. [Tenn.] Fults v. State, 2 Sneed, 232, 1854. Suspension of sentence without conditions expressed im judgment may be set aside by the court of its 193 own motion at any time during the same term, Weber v. State, 58 Ohio St. 616, 41 L.R.A. 472, 51 N. E. 116, 1898. As to power to commit after ex- piration of sentence, see note in 19 L.R.A.(N.S.) 1041, As to suspension of sentence gen- erally, see note in 14 L.R.A, 285. 2[Ga.] Neal v. State, 104 Ga. 509, 42 L.R.A. 190, 69 Am. St. Rep. 175, 30 S. E. 858, 1898. [Ill.] People ex rel. Boenert v. Barrett, 202 Ill. 287, 63 L.R.A. 82, 95 Am. St. Rep. 230, 67 N. E. 23, 1908. [Iowa] Miller v. Evans, 115 Iowa, 101, 56 L.R.A. 102, 91 Am. St. Rep. 143, 88 N. W. 198, 1901. [Kan.] Re Strickler, 51 Kan. 700, 33 Pac. 620, 1893. [Me.] Tuttle v. Lang, 100 Me. 123, 60 Atl. 892, 1905. [Nev.] Ex parte Roberts, 9 Nev. 44, 16 Am. Rep. 1, 1873. [N. D.] Re Markuson, 5 N. D. 185, 64 N. W. 939, 1895. [Okla.] Ex parte Clendenning, 1 Okla. Crim. Rep. 227, 19 L.R.A.(N.S.) 1041, 97 Pac. 650, 1908. [Tex.] Ex parte Smythe, 56 Tex. Crim. Rep. 375, 23 L.R.A.(N.S.) 854, 183 Am. St. Rep. 976, 120 S. W. 200, 1909; Burch v State, 56 Tex. Crim. Rep. 200, 120 S. W. 206, 1909. [Wis.] Re Webb, 89 Wis. 354, 27 L.R.A. 356, 46 Am. St. Rep. 846, 62 N. W. 117, 9 Am. Crim. Rep. 702, 1895. As to habeas corpus to release prisoner in case of delay in executing sentence imposed upon him, see monographic note in 87 Am. St. Rep. 8 Re Markuson, 5 N. D. 185, 64 N. W. 939, 1895, eiting Ex parte Roberts, 9 Nev. 44, 16 Am. Rep. 1, 1873. 480 § 375. Jurisdiction of juvenile courts. _ CRIMINAL LAW. [§ 375 The various acts creating juvenile courts properly make the jurisdiction of such courts exclusive as to all the matters falling within their cog- nizance;* but when the act establisking such courts further provides that a parent or guardian or other person who is re- sponsible for or contributes to the delinquency of a child shall be guilty of an offense therein designated,* the act must fur- 1 Act creating juvenile court may deprive existing courts of all juris- diction over a child under the age designated in the act, who is charged with a criminal offense, except to transfer the case to the juvenile court, [Idaho] Re Sharp, 15 Idaho, 120, 18 L.R.A.(N.S.) 886, 96 Pac. 563, 1908. [Kan.] State v. Dunn, 75 Kan. ‘799, 90 Pac. 231, 1907. [Utah] Mill v. Brown, 31 Utah, 473, 120 Am. St. Rep. 935, 88 Pac. 609, 1907. Indictment for manslaughter; ob- jection being taken to jurisdiction of district court on the ground that de- fendant was under the age of seven- ‘teen years, and therefore to be tried in the juvenile court, and the evi- dence not being before the appellate court, the ruling of the trial court will not be disturbed. State v. Wil- ‘son, 126 La. 661, 52 So. 981, 1910. 2 Encouraging child to commit acts of delinquency, statute making party guilty of, punishable for misde- meanor; that affidavit under which ‘defendant was held was defective, or failed properly to charge a public of- fense, would not render conviction void or vulnerable on collateral at- tack. Tullis v. Shaw, 169 Ind. 662, 83 N. E. 376, 1908. Complaint alleging accused en- couraged prosecutrix, a girl under the age of fifteen years, to commit an act of delinquency, to wit, that accused had illicit sexual intercourse with her, is to be construed, so far as the allegation of age is concerned, as alleging merely that prosecutrix is under the age of seventeen years, that being the age fixed by statute under which such act is made a mis- demeanor. Tullis v. Shaw, 169 Ind. 662, 83 N. E. 376, 1908. Where a statute provides that who- ever unlawfully has knowledge of a female child under the age of sixteen years is guilty of rape, an affidavit setting out that accused, on a specified day, did encourage prosecutrix, a girl under fifteen years of age, to commit an act of delinquency, te wit, that ac- cused held illicit sexual intercourse with her, etc., charges a misdemeanor over which the juvenile court has jurisdiction, and not a crime of rape under the statute, cognizable in the district or lower court. Tullis v. Shaw, 169 Ind. 662, 83 N. E. 376, 1908. Under a statute providing that any person who shall be responsible for a delinquency, or who does any act which tends to cause a child to be- come a delinquent, is guilty of a mis- demeanor, and another statute defin- ing a delinquent child to be one under eighteen years of age who violates any law, is incorrigible, associates with criminals, frequents « bawdy- house, an information alleging the doing of acts tending to make the child become a delinquent is suf- ficient; it is not necessary to allege that she actually became a _ delin- quent. State v. Dunn, 53 Or. 304, 99 Pac. 278, 100 Pac. 258, 1909. Encouraging; jurisdiction to try and punish in juvenile courts for en- couraging child to become a delin- quent, etc. Tullis v. Shaw, 169 Ind. 662, 83 N. E. 376, 1908. Prosecution for conduct tending to induce child to become delinquent; child’s testimony necessary to sustain conviction, unless facts otherwise sufficiently proved. State v. Dunn, 538 Or. 304, 99 Pac. 278, 100 Pac. 258, 1909. Removing clothes of infant female, and trying to induce her to have sexual intercourse with accused by arousing her passions, etc.; informa- tion charging such acts, and alleging their tendency te make such child a § 375] JUVENILE COURTS, 481 ther provide for trial of said adult for such alleged offense in the manner provided by law for the trial of adults for offenses against the criminal laws of the state, or the law will be in- valid.* Before a child can be made a ward of the state by pro- ceedings in the juvenile court, it must appear that the child is delinquent within the meaning of the statute,* and that the parent or legal guardian is incompetent, or has neglected and failed to care and provide for the child the training and educa- tion contemplated and required by both law and morals; and a court committing a child without first finding the existence of these conditions exceeds its power.’ In all proceedings under such acts commenced against an infant by affidavit or similar process the offense alleged must be brought clearly within the act, to confer jurisdiction on the juvenile court.® delinquent, held to be sufficient with- out alleging she actually became a delinquent, under a statute providing that any person responsible for, or who does any act which tends to cause, such child’s delinquency, is guilty of a misdemeanor, and another statute defining a delinquent child as one under the age of eighteen years who violates any law, is in- corrigible, associates with criminals, frequents bawdyhouses, etc. State v. Dunn, 53 Or. 304, 99 Pac. 278, 100 Pac. 258, 1909. ‘ 8Juvenile act making it a misde- meanor to contribute to the delin- quency of a child does not provide additional methods of prosecution or cumulative penalties for crimes al- ready provided for. State v. Eisen, 53 Or. 297, 99 Pac. 282, 100 Pac. 257, 1909. Prosecution of adult under pro- visions of juvenile court act is to ve conducted in the same manner as any other criminal prosecution against an adult for violation of the criminal laws of the state; the court does not act in the same manner as it acts in the prosecution of minors charged with infraction of the criminal laws of the state. State v. Eisen, 53 Or. 297, 99 Pac. 282, 100 Pac. 257, 1909. 4“Juvenile delinquent” is a term which may include any juvenile con- Crim. L. Vol. I.—31. victed of a felony. People v. Park, 41 N. Y. 21, 38, 1869. 5 Mill v. Brown, 31 Utah, 473, 120 Am, St. Rep. 935, 88 Pac. 609, 1907. 6 Affidavit or information under juvenile act is insufficient where it fails to describe an offense under the juvenile act, to bring the offense within the act, but describes offenses cognizable, under other provisions of the criminal law of the state, by other courts. State v. Rose, 125 La. 1080, 52 So. 165, 125 La. 1086, 52 So. 167, 1910; State v. Eisen, 53 Or. 297, 99 Pac. 282, 100 Pac. 257, 1909. —Affidavit charging adult with selling pistols to delinquent children under age of seventeen is sufficient to confer jurisdiction on the juvenile court, and additional averments as to wherein the children have been found delinquent are mere surplusage and immaterial. State v. Fink, 127 La. 190, 53 So. 519, 1910. Under Louisiana act giving juve- nile courts jurisdiction of neglected and delinquent children, affidavit that defendant permitted child under age of fourteen years to do certain acts, and which does not state that child is a delinquent, fails to state an offense cognizable in the juvenile court. State v. Rose, 125 La, 1080, 52 So. 165, 125 La. 1086, 52 So. 167, 1910. § 376. § 377. § 378. § 379. § 380, § 381. § 382. § 383. § 384, § 385. § 386. § 387. § 388, § 389. § 390. § 391. § 392. § 393. § 394, § 395. § 396. § 397. § 398, § 399. § 400. § 401, § 402. § 403. § 404, § 405. § 406. § 407. § 408, § 409. § 410. § 411. § 412. § 413, CHAPTER XIII. DEFENSES. Act done as agent, etc., for another. Act done under direction of government. —Under direction of authorities of foreign government. Act done under advice of counsel. Alibi. Assent and consent. Arrest by person not an officer. Coercion, compulsion, and duress. Condonation ‘and settlement. Conviction or acquittal of another. Criminal proceedings; imprisonment for fine and costs, Custom and usage. Death of prosecuting witness, Decoy and entrapment. Effect of license. Failure to indict others. Former conviction; autrefois attaint. Former conviction or acquittal. Former jeopardy. —Attaches when. —Does not attach when. Good character as a defense. Ignorance or mistake of fact. Ignorance or mistake of law. Immunity for furnishing evidence. Imprisonment for life at time of crime. Infancy. Injunction and prohibition. Insanity. Instigation and solicitation, Intoxication. Irresistible impulse; “dementia Americana,” Motive of prosecution. Necessity and self-defense. Pendency of, or recovery in, a civil action. Ratification by injured party. Reparation. Repeal of statute. 482 § 376] § 414. Religious belief. § 415. Somnambulism. DEFENSES, 483 § 416. Want of Federal revenue stamp. § 376. Act done as agent, etc., for another. The fact that a party accused of crime did the act complained of as the agent or employee of another, or under the direction and au- thority of another whose agent or employee or inferior he was, cannot be set up as a defense in a prosecution for the unlawful act,’ because such person cannot relieve himself of the crimi- 1 [Eng.] Mostyn v. Fabrigas, Cowp. pt. 1, p. 161. [Fed.] Mitchell v. Har- mony, 13 How. 115, 14 L. ed. 75, 1851, affirming 1 Blatchf. 549, Fed. Cas. No. 6,082, 1850; United States v. Jones, 3 Wash. C. C. 209, Fed. Cas. No. 15,494, 1813; United States v. Carr, 1 Woods, 480, Fed. Cas. No. 14,732, 1872. [Cal.] People v. Rich- mond, 29 Cal. 414, 1866. [Conn.] State v. Hull, 34 Conn. 132, 1867. [Ga.] Hately v. State, 15 Ga. 346, 1854. [Ind.] Skeen v. Monkeimer, 21 Ind. 1, 1863. [R. I.] State v. Sutton, 10 R. I. 159, 1872. [Tex.] State v. Sparks, 27 Tex. 627, 1864. [Vt.] Humphrey v. Douglass, 10 Vt. 71, 33 Am. Dec. 177, 1838. Order to do an illegal act, no mat- ter from how high a source it origi- nates, will afford no defense against prosecution and punishment for -the criminal act. State v. Sparks, 27 Tex. 627, 1864. See Smith v. District of Columbia, 12 App. D. C. 33, 1897. Soldiers bound to obey lawful or- ders of officers only; and if on an order from an officer a soldier shoots a fellow soldier for disrepectful lan- guage, he will be guilty of murder. United States v. Carr, 1 Woods, 480, Fed. Cas. No. 14,732, 1872. In war time, orders of superior of- ficers must be obeyed, and such order relieves the inferior executing the same from liability to prosecution and punishment, if the act be crim- inal. Clark v. State, 37 Ga. 191, 1867 (this decision seems to stand alone in holding this doctrine). Superior officer’s order is no de- fense to trespass of underofficer or soldier in executing such orders. Mitchell v. Harmony, 18 How. 115, 14 L. ed. 75, 1851. See O’Reilly De Camara v. Brooke, 185 Fed. 387, 1905; Saxlehner v. Eisner, 140 Fed. 938, 1905. ae also note in 106 Am. St. Rep. —Arrest of member of disloyal so- ciety by authority of martial law, where made at a great distance from seat of war, is illegal, and marshal or his deputy making the same is liable. Johnson v. Jones, 44 Ill, 142, 92 Am. Dec. 159, 1867. —Order of officer of military force annulling order of court, void. Ray- mond v. Thomas, 91 U. S. 712, 716, 23 L. ed. 434,-485, 1875. —Provost marshal not protected by order of his superior officer, from liability for arresting saloon keeper selling intoxicating liquors to sol- diers in violation of military order. Griffin v. Wilcox, 21 Ind. 370, 1863. —Rifling bank vault under orders of general; lieutenant executing the order liable therefor. Terrill v. Rankin, 2 Bush, 453, 92 Am. Dee. 500, 1867. —Seizure and destruction of pri- vate property in order to secure the success of an expedition, there being no danger immediate or neces- sity urgent, render the military of- ficer guilty of a trespass. Mitchell v. Harmony, 13 How. 115, 14 L. ed. 75, 1851, affirming 1 Blatchf. 549, Fed. Cas. No. 6,082, 1850; Raymond v. Thomas, 91 U. S. 712, 716, 23 L. ed. 434, 485, 1875. —Seizure of property because of disloyal sentiment of owner is not justifiable in a military officer, and the soldiers executing the order are CRIMINAL LAW. [§ 376 484 nal responsibility of the act complained of by showing that he did such act by the direction and under authority of one who was his master and employer or superior.” § 377. Act done under direction of government. The fact that an act is done by an officer of the government, or an agent or representative of the government acting under the di- rection of a superior officer of the government, will not consti- tute a ground of defense, and exempt the person so acting from liable. Farmer v. Lewis, 1 Bush, 66, 89 Am. Dec. 610, 1866. See also {Fed.] Holmes v. Sheridan, 1 Dill. 351, Fed. Cas. No. 6,644, 1870. [Ky.] Short v. Wilson, 1 Bush, 350, 354, 1866; Sellards v. Zomes, 5 Bush, 91, 1868; Ferguson v. Loar, 5 Bush, 693, 1869. [Tenn.] Yost v. Stout, 4 Coldw. 205, 94 Am. Dec. 194, 1867. —Soldier taking property under order of superior officer personally liable for the wrongful act. Hedges v. Price, 2 W. Va. 192, 94 Am. Dec. 507, 1867. As to homicide in discharge of mil- itary duty, see note in 67 L.R.A. 295- 297. As to whether soldier is bound to obey order of sovereign by invading peaceable neighboring nation, see note in 87 Am. Dec. 508. Coercion of soldier by commanding officer as a defense to a prosecution for crime. See note in 106 Am. St. Rep. 728, 2[Ala.] State v. Bell, 5 Port. (Ala.) 365, 1837; Winter v. State, 30 Ala. 22, 1857; Reese v. State, 73 Ala. 18, 1882; Cagle v. State, 87 Ala. 38, 6 So. 300, 1888. [Cal.] People v. Rich- mond, 29 Cal. 414, 1866. [D. C.] Smith v. District of Columbia, 12 App. D. C. 33, 1897. [Ga.] Hately v. State, 15 Ga. 346, 1854. [Ind.] pour v. State, 18 Ind. App. 289, 48 N.E.9,1897. [Ky.] Com. v. Bot- tom, 140 Ky. 212, 130 S. W. 1091, 1910. [Mass.] Com. v. Hadley, 11 Met. 66, 1846; Com. v. Drew, 3 Cush. 279, 1850; Com. v. Whalen, 16 Gray, 23, 1860; Com. v. Feeney, 13 Allen, 560, 1866. [Miss.] Kliffield v. State, 4 How. (Miss.) 304, 1840. [Mo.] Hays v. State, 18 Mo. 246, 1850; Schmidt v. State, 14 Mo. 137, 1851; State v. Bryant, 14 Mo. 340, 1851; State v. Chauvin, 231 Mo. 31, 132 S. W. 243, 1910. [Neb.] Allyn v. State, 21 Neb. 593, 33 N. W. 212, 1887. [N. Y.] Curtis v. Knox, 2 Denio, 341, 1845; People v. Dunlap, 32 Misc. 390, 66 N. Y. Supp. 161, 15 N. Y. Crim. Rep. 149, 1900. [N. C.] State v. Crosset, 81 N. C. 579, 1879. [Okla.] Buchanan v. State, 4 Okla. Crim. Rep. 645, 36 L.R.A, (N.S.) 83, 112 Pac. 32, 1910. [Pa.] Com. v. Kolb, 13 Pa. Super. Ct. 347, 1900. [S. C.] State v. Matthis, 1 Hill, L. 37, 1833. [Tenn.] Thompson v. State, 105 Tenn. 177, 51 L.R.A. 883, 80 Am. St. Rep. 875, 58 S. W. 213, 1900. [Tex.] Taylor v. State, 5 Tex. App. 529, 1879; Murphy v. State, 6 Tex. App. 420, 1879; Sanders v. State, — Tex. Crim. Rep. —, 26 S. W. 62, 1894. [Vt.] State v. Bug- bee, 22 Vt. 32, 1849; State v. Potter, 42 Vt. 495, 1869. See note in 70 Am. Dec. 499. Doctrine of agency not recognized in the criminal law. State v. Chau- vin, 231 Mo. 31, 132 8. W. 243, 1910. Son hauling goods from warehouse of vendor, which his father had pur- chased with intent to defraud seller, under contract to which son was not a party, cannot be prosecuted on charge of obtaining goods with inten- tion to defraud, he having acted in a subordinate capacity, and under the directions of his father. State v. Rosenberg, 162 Mo. 358, 62 S. W. 435, 982, 1901. Street car employee tearing up ce- ment foot walk in obedience te or- ders of the street car company in whose employ he is, is not relieved from responsibility for the act by the fact that he believed the street car company had a license to tear uy the foot walk. Smith v. District of Columbia, 12 App. D. C. 33, 1897. § 378] DEFENSES. 485 personal liability for the wrongful act;? the official position affords no immunity from criminal prosecution.” § 378. —Under direction of authorities of foreign gov- ernment. The jurisdiction of a nation within its own terri- tory is exclusive and absolute,’ and the fact that a crime com- mitted in time of peace was committed under the directions of local authorities of a foreign government is no defense.” Thus, it has been held that an English subject who, under the direction of the local Canadian authorities, commits a homicide in the United States, in time of peace, may be prosecuted there- for in the state in which the crime was committed, notwithstand- ing the fact that his sovereign affirms his conduct, and avows that the directions under which he acted were the legal acts of his government.® 1 Health officer killing healthy horse in mistaken belief that it had a contagious disease is liable for his wrongful act. Miller v. Horton, 152 Mass. 544, 10 L.R.A. 116, 23 Am. St. Rep. 850, 26 N. E. 100, 1891, —The general rule of the common law is that if there be no necessity, the individual who did the act should be responsible. Taylor v. Plymouth, 8 Met. 462, 1844; Phila- delphia v. Scott, 81 Pa. 80, 22 Am. Rep. 738, 1876. See Mitchell v. Har- mony, 18 How. 115, 14 L. ed. 75, 1851, affirming 1 Blatchf. 549, Fed. Cas. No. 6,082, 1850. Infringement of patent in time of peace for public use; parties are lia- ble for their invasion of rights. Brady v. Atlantic Works, 4 Cliff. 408, Fed. Cas. No. 1,794, 1876. See Campbell v. James, 17 Blatchf. 42, Fed. Cas. No. 2,361, 1879. Library devoted to public use can- not be taken by town trustees. Cary Library v. Bliss, 151 Mass. 379, 7 L.R.A. 765, 25 N. E. 92, 1890. 2State v. McLean, 121 N. C. 589, 42 L.R.A. 721, 28 S. E. 140, 1879. See also note in 42 L.R.A. 733, 23 Am. & Eng. Enc. Law, 2d ed. 382. 1 People v. McLeod, 1 Hill, 377, 25 Wend. 483, 37 Am. Dec. 328, 1841. Aliens subject to laws of territory where crime is committed. [U. S.] Barrington v. Missouri, 205 U. S. 483, 51 L. ed. 890, 27 Sup. Ct. Rep. 582, 1906. [Ark.] State v. Chapin, 17 Ark. 561, 65 Am. Dec. 452, 1856. [Mo.] See State v. Neibekier, 184 Mo. 211, 83 S. W. 523, 1904. 2 People v. McLeod, 1 Hill, 377, 25 Wend. 483, 37 Am. Dec. 328, 1841. 3 The case of People v. McLeod was in reality a contention between the United States and Great Britain, the latter insisting that the executive department of the general govern- ment should require the judiciary of New York to release McLeod from custody on a charge under an indict- ment for murder in the burning of the Caroline and the killing of one Durfee, while the prisoner was act- ing under the command of his sov- ereign or her military officers, the claim being made that he was not answerable to the judicial tribunals of the nation in which these acts were done. The Federal government insisted that the executive depart- ment was without authority to inter- fere with the judicial department, and to determine that a person held under indictment in due form, found by a legally constituted grand jury, was in fact guilty of no offense pun- ishable under our laws. It was further held that under the evidence in the case there was a right on the part of the judicial tribunals to hear the evidence, and determine whether the accused acted under the direc- tions of any sovereign or other pow- 486 CRIMINAL LAW. [§ 379 § 379. Act done under advice of counsel. The fact that the accused acted upon the advice of counsel in committing the act complained of cannot be shown in a prosecution for the com- mission of a crime,’ because the advice of counsel furnishes no excuse to a client for violating the law, and cannot be relied upon as a defense, either in a civil action? or in a criminal prosecution.’ It is well said by Mr. Justice Brooks in Smith er, or committed the acts complained of from mere wantonness and malice. In this view of the case Great. Brit- ain never coincided, but it is abun- dantly upheld by the authorities of international law. See Halleck In- ternational Law, chap. 14, § 24; chap. 16, § 31. 1Smith v. State, 46 Tex. Crim. Rep. 267, 108 Am. St. Rep. 991, 81 S. W. 712, 936, 1904. See Weston v. Com. 111 Pa. 251, 2 Atl. 191, 6 Am. Crim. Rep. 436, 1885; Gallaher v. State, 28 Tex. App. 280, 12 S. W. 1087, 1889; Ward v. State, 42 Tex. Crim. Rep. 435, 60 S. W. 757, 1901. See fully 1 Am. & Eng. Enc. Law, 2d ed. 894-897. Question of law involved; witness testifying in good faith, relying up- on advice of counsel in the premises, is not liable to prosecution for per- jury. [Fed.] United States v. Con- ner, 3 McLean, 573, Fed. Cas. No. 14,847, 1845; United States v. Stan- Jey, 6 McLean, 409, Fed. Cas. No. 116,376, 1855. [Ala.] Hood v. State, 44 Ala. 81, 1870; Barnett v. State, 89 Ala. 165, 7 So. 414, 1889. [Iowa] State v. McKinney, 42 Iowa, 205, 1875. [Pa.] Com. v. Clark, 157 Pa. 257, 27 Atl. 723, 1893. See fully 1 Am. & Eng. Enc. Law, 2d ed. 898. 2Smith v. State, 46 Tex. Crim. Rep. 267, 108 Am. St. Rep. 991, 81 S. W. 712, 936, 1904. See [Ga.] Green v. Jones, 39 Ga, 521, 1869. [Ml] Jasper v. Purnell, 67 Ill. 361, 1873; Cochrane v. Tuttle, 75 Ill. 361, 1874. [Ind.] Dodd v. State, 18 Ind. 56, 1862. [Mich.] Farmers’ Mut. F. Ins. Co. v. Bowen, 40 Mich. 147, 1879. Admissible in mitigation of dam- ages in civil action, where shown that such advice was given upon a full and fair statement of the facts by the client to his counsel. [Ga.] Perkins v. Attaway, 14 Ga. 27, 1853; Gilmore v. Wright, 20 Ga. 199, 1856; Hartridge v. McDaniel, 20 Ga. 398, 1856; McLaren v. Birdsong, 24 Ga. 271, 1858; Green v. Jones, 39 Ga. 521, 1869; Dye v. Denham, 54 Ga, 224, 1875; Fox v. Davis, 55 Ga. 299, 1875; Harrell v. Feagin, 59 Ga. 821, 1877; Ventress v. Rosser, 73 Ga.-535, 1884; Shores v. Brooks, 81 Ga. 468, 12 Am. St. Rep. 332, 8 S. BE. 429, 1888. [IIL] Cochrane v. Tuttle, 75 Ill. 361, 1874. [N. Y.] Jackson ex dem. Hooker v. Mather, 7 Cow. 301, 1827. See 1 Hilliard, Torts, 437; Suther- land, Damages, 747. ; Compare: Smith v. Wellborn, 75 Ga. 800, 1885; Jasper v. Purnell, 67 Tll. 358, 1873. Contempt of court is not justified or excused by reason of fact that party acted on advice of counsel. [Ga.] Smith v. Goode, 29 Ga. 185, 1859. [N. J.] Cape May & S. L. R. Co, v. Johnson, 35 N. J. Eq, 422, 1882. [N. Y.] Capet v. Parker, 3 Sandf. 662, 1847. [N. C.] Green v. Griffin, 95 N. C. 50, 1886. [Ohio] Myers v. State, 46 Ohio St. 473, 15 Am. St. Rep. 638, 22 N. HE. 43, 1889. [S. C.] Columbia Water Power Co. v. Colum- bia, 4S. C. 388, 1873. See fully 1 Am. & Eng. Ene. Law, 2d ed. 898. Malicious prosecution, in action for; advice of counsel as a defense and in mitigation of damages, and the nature and extent of the defense furnished thereby. See exhaustive note in 18 L.R.A.(N.S.) 49-74; also 26 L.R.A. 627, and 68 L.R.A. 489. 8[Ala.] Barnett v. State, 89 Ala. 165, 7 So. 414, 1889. [Md.] Forwood v. State, 49 Md. 531, 1878. [N. Y.] People v. Kane, 15 N. Y. Supp. 612, 1891. [Pa.] Weston v. Com. 111 Pa. 251, 2 Atl. 191, 6 Am. Crim. Rep. 486, 1885. [Tex.] Smith v. State, 46 § 380] DEFENSES. 487 v. State,‘ that “independent of authority, the proposition is sound that appellant cannot set up immunity from punishment by reason of advice of counsel, since such holding would be pla- cing the advice of the attorney above the law.” § 380. Alibi. The defense of alibi—. e., “elsewhere,” or presence in another place than that described at the time the alleged offense was committed ‘—is not, properly speaking, a defense within any accurate meaning of the word “defense,” but is a mere fact shown in rebuttal of the evidence introduced by the State.? The corpus delicti® is not denied by the defense of alibi; * its only design is to prove that the defendant, being in another place at the time, could not have committed the of- fense charged.® Impossibility of presence at the time and in the place charged is the essential feature of this defense,* and any proof tending to show that it was reasonably impossible for the accused to have been present at the time and place of the commission of the offense charged is sufficient to establish the defense.” The defense of alibi is not looked upon with favor by Tex. Crim. Rep. 267, 108 Am. St. Rep. 991, 81 S. W. 712, 936, 1904. See fully 1 Am. & Eng. Enc. Law, 2d ed. 897. 446 Tex. Crim. Rep. 267, 108 Am. St. Rep. 991, 81 S. W. 712, 936, 1904. 1 Defense of alibi means claim, by party charged, of presence at another place than the one alleged, at the time of the commission of the crime. Peyton v. State, 54 Neb. 188, 74 N. W. 597, 11 Am. Crim. Rep. 47, 1898. 2[Ariz.] Schultz v. Territory, 5 Ariz. 239, 52 Pac. 352, 11 Am. Crim. Rep. 44, 1898. [Iowa] State v. Reed, 62 Iowa, 40, 17 N. W. 150, 1883. [La.] State v. Ardoin, 49 La. Ann. 1145, 62 Am. St. Rep. 678, 22 So. 620, 1897. As to doctrine of defense of alibi and evidence sufficient to establish, see notes in 11 Am. Crim. Rep. 77- 88, 11 Am. St. Rep. 441-444; and 62 Am. St. Rep. 679. Proof of, a traverse of matters charged, as much as any other' de- fense would be. People v. Fong Ah Sing, 64 Cal. 253, 28 Pac. 233, 11 Am. Crim. Rep. 33, 1883. 3 See supra, §§ 346 et seq. 4People v. Lukoszus, 242 Ill. 101, 89 N. E. 749, 1909. In case of conspiracy to murder, defense of alibi does not apply, be- cause presence or absence of co-con- spirator at consummation of crime is not a necessary element. State v. Gatlin, 170 Mo. 354, 70 S. W. 885, 1902; Cain v. State, 42 Tex. Crim. Rep. 210, 59 S. W. 275, 1900; Jenkins v. State, 45 Tex. Crim. Rep. 173, 75 S. W. 312, 1903. : As to conspiracy to rob or steal, see infra, § 381, footnote 8. 5 Williams v. State, 123 Ga. 138, 51 S. E. 322, 1905; People v. Lukos- zus, 242 Ill. 101, 89 N. E. 749, 1909. 6 Williams v. State, 123 Ga. 138, 51 S. E. 322, 1905. 7Smith v. State, 3 Ga. App. 803, 61 S. E. 737, 1907; State v. Ardoin, 49 La. Ann. 1145, 62 Am. St. Rep. 678, 22 So. 620, 1897. Necessary to prove only such a state of facts or circumstances as to reasonably satisfy the jury that the defendant was elsewhere than at the place where, and at the moment when, the offense was committed. He need not satisfy the jury of his 488 CRIMINAL LAW. [§ 380 many courts,® is probably the most easily manufactured ° of alf defenses, and is thoroughly discredited by Sam Weller, as the panacea for all charges of a criminal character ; and, where made, the better rule is: constitute a valid defense ; ™ 1 yet it may thought to be that the burden is on the defendant to establish it, not beyond a reasonable doubt,” but to such an extent only exact whereabouts every moment of the time necessary to cover the peri- od when the offense was committed. State v. Ardoin, 49 La, Ann. 1145, 62 Am. St. Rep. 678, 22 So. 620, 1897. 8 Line v. State, 51 Ind. 172, 1 Am. Crim. Rep. 615, 1875; Albin v. State, 63 Ind. 598, 3 Am. Crim. Rep. 295, 1878; State v. Crowell, 149 Mo. 391, 73 Am. St. Rep. 402, 50 S. W. 893, 11 Am. Crim. Rep. 74, 1899. “Evidence of an alibi is evidence of a suspicious character.” Line v. State, 51 Ind. 172, 1 Am. Crim. Rep. 615, 1875. “Though an alibi is a well-worn defense, yet it is a legal one.” State v. Crowell, 149 Mo. 391, 73 Am. St. Rep. 402, 50 8S. W. 893, 11 Am. Crim. Rep. 74, 1899. 9 People v. Portenga, 184 Mich. 247, 96 N. W. 17, 12 Am. Crim. Rep. 30, 1903; Albin v. State, 63 Ind. 598, 3 Am. Crim. Rep. 295, 1878. 10See Pickwick Papers, passim. 11 See French v. State, 12 Ind. 670, 74 Am. Dec. 229, 1859; Adams v. State, 42 Ind. 373, 1873; Binns v. State, 46 Ind. 311, 1874; Kaufman v. State, 49 Ind. 248, 1874; Howard v. State, 50 Ind. 190, 1875; Sater v. State, 56 Ind. 378, 1877; Albin v. State, 63 Ind. 598, 3 Am. Crim. Rep. 295, 1878; State v. Crowell, 149 Mo. 391, 73 Am. St. Rep. 402, 50 S. W. 893, 11 Am. Crim. Rep. 74, 1899. Evidence of alibi admissible on plea of not guilty. State v. McClel- lan, 23 Mont. 532, 75 Am. St. Rep. 558, 59 Pac, 924, 12 Am. Crim. Rep. 13, 1900. As to proof of, on trial of one found with recently stolen property, see State vy. North, 95 Mo. 615, 8 S. W. 799, 1888. 12 Burden of proof is on the state under defense of alibi. People v. Roberts, 122 Cal. 377, 55 Pac. 137, 11 Am. Crim. Rep. 31, 1898; Walters v. State, 39 Ohio St. 215, 4 Am, Crim. Rep. 33, 1883. —In Iowa it has been said that the burden is on defendant to estab-. lish alibi by preponderance of evi- dence. State v. Hamilton, 57 Iowa,. 596, 11 N. W. 5, 1881; State v. Reed, 62 Iowa, 40, 17 N. W. 150, 1883; State v. McCracken, 66 Iowa, 569, 24. N. W. 48, 6 Am. Crim. Rep. 209,. 1885. —On the other hand it has been held error to instruct the jury that the burden is on the defendant to- prove alibi, and that such proof must show that defendant could not have been present. [Kan.] State v. Child,. 40 Kan. 482, 20 Pac. 275, 1889. [Neb.] McLain v. State, 18 Neb. 154, 24 N. W. 720, 6 Am. Crim. Rep. 21, 1885; Beck v. State, 51 Neb. 106, 70 N. W. 498, 1897; Henry v. State, 51 Neb.. 149, 66 Am. St. Rep. 450, 70 N. W. 924, 1897; Peyton v. State, 54 Neb. 188, 74 N. W. 597, 11 Am. Crim. Rep. 47, 1898. [Kan.] State v. Stickney, 53 Kan. 308, 42 Am. St. Rep. 284, 36 Pac. 714, 1894. Shoemaker v. Territery, 4 Okla. 118, 43 Pac. 1059, 11 Am. Crim. Rep. 36, 1896. If the evidence introduced as to the alibi causes the jury to doubt defendant’s guilt, he is entitled to an: acquittal. [Iowa] State v. Miner, 107 Iowa, 656, 78 N. W. 679, 1899. [Mont.] State v. McClellan, 23 Mont. 532, 75 Am. St. Rep. 558, 59 Pac. 924, 12 Am. Crim. Rep. 13, 1900. [Neb.] McLain v. State, 18 Neb. 154,. 24 N. W. 720, 6 Am. Crim. Rep. 21, 1885. [Ohio] Walters v. State, 39: Ohio St. 215, 4 Am. Crim. Rep. 33,. 1883. It is not necessary that the jury may be able to see that the alibi is fully established. Toler v. State, 16 Ohio St. 583, 1866; Walters v. § 380] DEFENSES. 489 as is necessary to raise in the minds of the jury a reasonable doubt as to whether the accused was or could have been present at the place and time where and when the crime was com- mitted. The defendant is entitled to have such defense fairly treated,’* and the jury properly instructed as to the law there- of.35 State, 39 Ohio St. 215, 4 Am. Crim. Rep. 33, 1883. Burden is on defendant setting up defense of alibi, to prove it to the extent of raising a reasonable doubt as to his guilt only. Wilburn v. Ter- ritory, 10 N. M. 402, 62 Pac. 968, 14 Am. Crim. Rep. 500, 1900. —Proof by preponderance of evi- dence or beyond a reasonable doubt is not necessary to establish alibi. Glover v. United States, 77 C. C. A. 450, 147 Fed. 426, 8 A. & E. Ann. Cas. 1185, 1906; Walters v. State, 39 Ohio St. 215, 4 Am. Crim. Rep. 33, 1883. See full collection of authorities in note in 8 A. & E. Ann. Cas. 1189. —The amount of proof required to sustain defense of alibi is fully con- sidered, and the cases collected under each of the three rules holding de- fendant to proof (1) beyond a rea- sonable doubt, (2) by preponderance of evidence, (3) by raising a reason- able doubt in the minds of the jury, in note in 41 L.R.A. 530-543. As to burden of proof of alibi, see notes in 14 Am. St. Rep. 41-44, and 62 Am. St. Rep. 679. . 18 Where defense of alibi is raised by the evidence, it is the duty of the court to instruct as to the law on that defense. State v. Taylor, 118 Mo. 153, 24 S. W. 449, 11 Am. Crim. Rep. 51, 1893. Where, from the whole evidence, on a defense of alibi, there is a reason- able doubt as to the guilt of the ac- cused in the minds of the jury, they should acquit. State v. Harvey, 131 Mo. 339, 32 S. W. 1110, 1895. 14[Ind.] French v. State, 12 Ind. 670, 74 Am. Dec. 229, 1859; Kaufman v. State, 49 Ind. 248, 1874; Sater v. State, 56 Ind, 378, 1877; Albin v. State, 68 Ind. 598, 3 Am. Crim. Rep. 295, 1878. [N. Y.] People v. Kelly, 35 Hun, 295, 1885. [Tex.] Walker v. State, 37 Tex. 367, 1872. “We know of no rule of law which attaches a suspicion to, or fixes a blemish upon, evidence tending to prove an alibi, any more than it does. upon evidence tending to prove any other fact.” Albin v. State, 63 Ind. 598, 3 Am. Crim. Rep. 295, 1878. 16 Instruction. Error for court to say to jury: “Though an alibi is a well-worn defense, yet it is a legal one.” State v. Crowell, 149 Mo, 391, 73 Am, St. Rep. 402, 50 S. W. 893, 11 Am, Crim. Rep. 74, 1899. “Evidence of alibi is evidence of a suspicious character,”—reversible error. Line y. State, 51 Ind. 172, 1 Am. Crim. Rep. 615, 1875. That defense of alibi, to be entitled to consideration, must be proved by the defendant, is erroneous, and not cured by the further instruction that if the jury have a reasonable doubt of defendant’s presence at the time and place of crime, they should ac- quit. State v. McClellan, 23 Mont. 532, 75 Am. St. Rep. 558, 59 Pac. 924, 12 Am. Crim. Rep. 13, 1900. “Defense of alibi is liable to great abuse, growing out of the ease with which it may be fabricated and the difficulty with which such fabrica- tion can be detected,”—reversible er- ror. Albin v. State, 63 Ind. 598, 3 Am. Crim. Rep. 295, 1878. Instruction “to scrutinize any evi- dence in relation to alibi,” adding that “alibi is a defense easily proved and hard to disprove, therefore you will be careful and cautious in exam- ining evidence bearing upon the ques- tion of alibi,’—may be proper or im- proper, according to the case made out. People v. Portenga, 134 Mich. 247, 96 N. W. 17, 12 Am. Crim. Rep. 30, 1903. “If there is any evidence which raises a reasonable doubt as to the 490 § 381. Assent and consent. CRIMINAL LAW. [§ 381 In all those crimes where the elements of trespass and intent are necessary elements in the crime charged, assent and consent to the act relieves the party charged from liability to criminal prosecution, and for that reason such assent and consent constitutes a complete de- fense.} But to have that effect, the consent must be more than a mere passive submission without previous understanding with presence of the defendant at the time and place where the crime is charged to have been committed, he must be acquitted,’—is correct. State v. Adair, 160 Mo. 391, 61 S. W. 187, 14 Am. Crim. Rep. 597, 1901. Charge that, to make mere distance from scene of crime a conclusive an- swer to the charge of its commission, distance must be shown to be so great as to render it impossible for defendant to have participated,—is not error. State v. Fenlason, .78 Me. 495, 7 Atl. 385, 1886; Peyton v. State, 54 Neb. 188, 74 N. W. 597, 11 Am. Crim. Rep. 47, 1898. That fact of introducing false evi- dence of an alibi, before it could be weighed against defendant, must be established beyond all question,—is correct. State v. Ward, 61 Vt. 153, 17 Atl. 488, 8 Am. Crim. Rep. 207, 1888. That introduction of false evidence of an alibi constituted a circumstance against defendant, and was an ad- mission of guilt—correct. State v. Ward, 61 Vt. 153, 17 Atl. 483, 8 Am. Crim. Rep. 207, 1888. Instruction concerning evidence to prove alibi asked and refused; re- fusal held erroneous. People v. Lee Gam, 69 Cal. 552, 11 Pac. 183, 7 Am. Crim. Rep. 61, 1886. In regard to instructions as to de- fense of alibi, see notes in 11 Am. Crim. Rep. 46, and 11 Am. Crim. Rep. 77-88. As to form of instruction on ques- tion of alibi, see note in 12 Am. Crim. Rep. 18, 19. 1[Eng.] Reg. v. Egginton, 2 Bos. & P. 508, 2 Leach, C. L. 913, 2 East, P. C. 494, 666, 5 Revised Rep. 689; Reane’s Case, 2 Hast, P, C. 734; McDaniel’s Case, Fost. C. L. 121; Rex v. Dannelly, 2 Marsh. 571, Russ. & R. C. C. 310. [Ala.] Allen v. State, 40 Ala. 334, 91 Am. Dec. 477, 1867. [Cal.] People v. Collins, 53 Cal. 185, 1878; People v. Clough, 59 Cal. 438, 1881. [Colo.] Connor v. People, 18 Colo. 373, 25 L.R.A. 341, 36 Am. St. Rep. 295, 33 Pac. 159, 1893. [Ga.] Williams v. State, 55 Ga. 391, 1 Am. Crim. Rep. 413, 1875. [Ill.] Love v. People, 160 Ill. 501, 32 L.R.A. 139, 43 N. E. 710, 1896. [Kan.] State v. Douglass, 44 Kan. 618, 26 Pac. 476, 1890. [Mich.] People v. McCord, 76 Mich. 200, 42 N. W. 1106, 8 Am. Crim. Rep. 117, 1889. [Tenn.] San- ders v. State, — Tenn, —, 25 Alb. L. J. 185, 1879. [Tex.] Pigg v. State, 43 Tex. 108, 1875; Speiden v. State, 3 Tex. App. 156, 30 Am. Rep. 126, 1877; Johnson v. State, 3 Tex. App. 598, 1878; O’Brien v. State, 6 Tex. App. 665, 1879. See infra, §§ 389 et seq. As to decoys generally, see article in 25 Alb. L. J. 184. Act of owner not originating in- tent, apparent consent to taking, ete., will not furnish a defense to prosecution for the crime. Alexander v. State, 12 Tex. 540, 1854. Animal instinct—Consent pro- duced by, in idiotic female child, sufficient to prevent act of sexual intercourse with, from constituting the crime of rape. Reg. v. Fletcher, Bell, C. C. 63, 70, 28 L. J. Mag. Cas. N. 8. 85, 5 Jur. N. 8. 179, 7 Week. Rep. 204, 8 Cox, C. C. 131; Reg. v. Ryan, 2 Cox, C. C. 115; Reg. v. Connolly, 26 U. C. Q. B. 317, 1867. See 1 Russell, Crimes, 7th Eng. 1st Con. ed. p. 947. . As to intent being an essential element to constitute a taking lar- ceny, see full collection of author- ities in 57 Am. Dec. 273, § 381] the party committing the act.? DEFENSES. 491 And a further qualification of the rule is its limitation to those acts which do not affect the public interest and welfare at large, as contradistinguished from those of the private individual directly interested or af- fected. A breaking into a building is not burglarious where the entrance is made by the consent and with the procurement of the owner, or of his agent or representative duly authorized in the premises.* To constitute larceny, there must be a tres- pass and an intent to take the property without the consent of the owner; * and in those cases where there has been previous 2[Eng.] R. v. Rigley, 1 Craw. & D. C. C. (Ir.) 202. [Cal.] People v. Hanselman, 76 Cal. 460, 9 Am. St. Rep. 238, 18 Pac. 425, 1888. [Ga.] Varner v. State, 72 Ga. 745, 1884. {Ill.] Love v. People, 160 Ill. 501, 32 L.R.A. 139, 43 N. E. 710, 1896. [Ind.] Thompson v. State, 18 Ind. 386, 81 Am. Dec. 364, 1862. [Iowa] State v. Abley, 109 Iowa, 61, 46 L.R.A. 862, 77 Am. St. Rep. 520, 80 N. W. 225, 12 Am. Crim. Rep. 279, 1899. [Kan.] State v. Jansen, 22 Kan. 498, 1879. [Mass.] Com. v. Nott, 185 Mass. 269, 1883. [Mo.] State v. Hayes, 105 Mo. 76, 24 Am. St. Rep. 360, 16 S. W. 514, 1891. [Neb.] State v. Sneff, 22 Neb. 481, 35 N. W. 219, 1887. [N. D.] State v. Currie, 13 N. D. 655, 69 L.R.A. 405, 112 Am. St. Rep. 687, 102 N. W. 875, 1905. [Pa.| Com. v. Hollister, 157 Pa. 13, 25 LRA. 349, 27 Atl. 386, 1893. [Utah] People v. Mor- ton, 4 Utah, 407, 11 Pac. 512, 1886. [Wyo.] Curran v. State, 12 Wyo. 5538, 76 Pac. 577, 1904. See infra, §§ 389, 405. As to decoys generally, see article in 25 Alb. L. J. 184. As to instigating crime for pur- pose of detection and punishment, see note collecting all the authori- ties in 25 L.R.A. 241. Mere passive silence by one who knows a crime is contemplated to be committed against his property, and permitting it to go on for the purpose of apprehending and punish- ing the criminal, will not relieve the act of its criminal character, or con- stitute a defense to a criminal pros- ecution therefor, [Ind.] Thompson v. State, 18 Ind. 386, 81 Am. Dec. 364, 1862. [Iowa] State v. Abley, 109 Iowa, 61, 46 L.R.A. 862, 77 Am. St. Rep. 520, 80 N. W. 225, 12 Am. Crim. Rep. 279, 1899. [Kan.] State v. Jansen, 22 Kan. 498, 1879. [Mich.] People v. Liphardt, 105 Mich. 80, 62 N. W. 1022, 1895. [Neb.] State v. Sneff, 22 Neb. 481, 35 N. W. 219, 1887. [N. C.] State v. Adams, 115 N. C. 775, 20 S. E. 722, 1894. 8 [Eng.] Reg. v Alison, 8 Car. & P. 418, 1838. [La.] State v. Dudous- sat, 47 La. Ann. 977, 17 So. 685, 1895. [Mass.] Com. v. Wood, 11 Gray, 85, 1858; Com. v. Snow, 116 Mass. 47, 1874. [Mich.] People v. Liphardt, 105 Mich. 80, 62 N. W. 1022, 1895. [Tex.] O’Brien v. State, 6 Tex. App. 665, 1879. Compare: Com. v. Parker, 9 Met. 263, 43 Am. Dec. 396, 1845; State v. Cooper, 22 N. J. L. 52, 51 Am. Dee. 248, 1849. Abortion, consent to, by the wo- man, no defense to prosecution. Com. v. Wood, 11 Gray, 85, 1858; Com. v. Snow, 116 Mass. 47, 1874. Bribe offered on suggestion that it will be received, made by officer to whom given, was held not punish- able in O’Brien v. State, 6 Tex. App. 665, 1879. Consent of deceased, no defense in prosecution for homicide. 4Connor v. People, 18 Colo. 373, 25 L.R.A. 341, 36 Am. St. Rep. 295, 33 Pac. 159, 1893. See notes in 81 Am. Dec. 365-367, 91 Am. Dec. 482; 30 Am. Rep. 129; and 2 Am. St. Rep, 387. 5 See infra, § 1152. [Cal.] People v. Meyer, 75 Cal. 388, 17 Pac. 431, 492 CRIMINAL LAW. [§ 382 consent to the taking, the act does not constitute larceny, no matter what may have been the intent of the party at the time of doing the act complained of.* But the consent by a servant or agent or employee, acting without due authority in the prem- ises, will not relieve the act of taking, etce., of its criminal char- acter, and will not constitute a defense to a criminal prosecu- tion therefor.” And where a conspiracy has been formed to rob, steal, or the like, the subsequent consent of the owner will not have the effect to relieve the parties from guilt in doing the 1888. [Colo.] Connor v. People, 18 Colo. 878, 25 L.R.A. 341, 36 Am. St. Rep. 295, 33 Pac. 159, 1893. [Ill.] Steward v. People, 173 Ill. 464, 64 Am. St. Rep. 133, 50 N. E. 1056, 11 Am. Crim. Rep. 563, 1898. [Ind.] Grunson v. State, 89 Ind. 533, 46 Am. Rep. 178, 1883. [Tex.] Garcia v. State, 26 Tex. 209, 82 Am. Dec. 605, 1862. See notes in 57 Am. Dec. 272; 46 ane Rep. 185; and 64 Am. St. Rep. 36. Fraud in obtaining possession, with consent of owner; rule does not ap- ply. State v. Woodruff, 47 Kan. 151, 27 Am. St. Rep. 285, 27 Pac. 842, 1891; Com. v. Flynn, 167 Mass. 460, 57 Am. St. Rep. 472, 45 N. E. 924, 1897. See notes in 27 Am. St. Rep. and 67 Am. St. Rep. 472. Trick or contrivance used to in- duce owner to consent to the taking of property, the rule does not apply. See [Eng.] Reg. v. Slowly, 12 Cox, C. C. 269, 4 Moak, Eng. Rep. 545, 27 L. T. N. 8S. 803. [Ind.] Grunson v. State, 89 Ind. 533, 46 Am. Rep. 178, 1883. [N. Y.] Weyman v. People, 4 Hun, 511, affirmed in 62 N. Y. 623, 1875. [N. C.] State v. Henderson, 66 N. C. 627, 1872. [Pa.] Com. v. Eichelberger, 119 Pa. 254, 4 Am. St. Rep. 642, 13 At]. 422, 7 Am. Crim. Rep. 325, 1888. See note in 4 Am. St. Rep. 642. As to distinction between false pretense and obtaining property by trick, etc., see note in 46 Am. St. Rep. 185. As to false pretense in securing owner’s consent, see notes in 78 Am. Dec. 605; 91 Am. Dec. 390; 92 Am. 285, Dec. 610; 98 Am. Dec. 726; 40 Am. Rep. 75-80; 40 Am. Rep. 104; 46 Am. Rep. 183-185; and 54 Am. Rep. 530. Subsequent conversion, after ob- taining possession with owner’s con- sent, is larceny, if the intent to steak existed. [N. Y.] People v. Call, 1 Denio, 120, 43 Am. Dec. 655, 1845; Weyman v. People, 4 Hun, 511, af- firmed in 62 N. Y. 623, 1875. [S. C.] State v. Thurston, 2 McMull. L. 382, 1842; State v. Gorman, 2 Nott & M’C. 90, 10 Am. Dec. 576, 1819; State: v. Lindenthall, 5 Rich, L. 237, 57 Am. Dec. 743, 1852. [Tex.] Dignowitty v. State, 17 Tex. 521, 67 Am. Dec. 670, 1856. 6[Eng.] Reg. v. Johnson, Car. &. M. 218. [Fed.] United States v. Whittier, 5 Dill. 35, Fed. Cas. No. 16,688, 1878. [Ala.] State v. Cham- bers, 6 Ala. 855, 1844; Allen v. State, 40 Ala. 334, 91 Am. Dec. 477, 1867. [Cal.] People v. Hanselman, 76 Cal. 460, 9 Am. St. Rep. 238, 18 Pac. 425, 1888. [Colo.] Connor v. People, 18. Colo. 373, 25 L.R.A. 341, 36 Am. St. Rep. 295, 33 Pac. 159, 1898. [Mich.] Saunders y. People, 38 Mich. 218, 1878. [N. Y.] Zink v. People, 77 N. Y. 114, 33 Am. Rep. 589, 6 Abb. N. C. 419, 1879, reversing 16 Hun, 396, 1878. [S. C.] State v. Covington, 2 Bail. L. 569, 1832. [Tenn.] Dodge v. Brittain, Meigs, 84, 1838; Kemp v. State, 11 Humph. 320, 1850. [Tex.] Speiden v. State, 3 Tex. App. 156, 30 Am. Rep. 126, 1877. See note in 2 Am. St. Rep. 387. 7State v. Abley, 109 Iowa, G1, 46 L.R.A. 862, 77 Am. St. Rep. 520, 80 ee 225, 12 Am. Crim. Rep. 279, § 382] DEFENSES. 493 act, and of criminal responsibility therefor, because the crime of the conspiracy is complete when the conspiracy is entered into.® § 382. Arrest by person not an officer. It is not only the right, but the duty, of any private individual, without a warrant, to arrest any person 8 [Colo.] Connor v. People, 18 Colo. 378, 25 L.R.A. 341, 36 Am. St. Rep. 295, 33 Pac. 159, 1893. [Kan.] State v. Stickney, 53 Kan. 308, 42 Am. St. Rep. 284, 36 Pac. 714, 1894. [Tex.] Johnson v. State, 3 Tex. App. 593, 1878. Conspiracy to steal, rob, and the like is not within the rule, because the crime is complete when the con- spiracy is formed. [Cal.] People v. Lawrence, 143 Cal. 148, 68 L.R.A. ‘193, 76 Pac. 893, 1904. [Colo.] Con- nor v. People, 18 Colo. 37?, 25 L.R.A. 341, 36 Am. St. Rep. 295, 33 Pac. 159, 1893. [Mich.] People v. Gil- man, 121 Mich, 187, 46 L.R.A. 218, 80 Am. St. Rep. 490, 80 N. W. 4, 15 Am. Crim, Rep. 88, 1899. [Tex.] Johnson v. State, 3 Tex. App. 593, 1878; Woodworth v. State, 20 Tex. App. 375, 1886. As to conspiracy to murder, see supra, § 380, note 4, 12 Co. Inst. 56, 221; 4 BI. Com. 292; Fost. C. L. 318; 1 Hale, P. C. 490, 587; 2 Hale, P. C. 77, 82; 2 Hawk. P. C. chap. 12, § 1; 1 Russell, Crimes (7th Eng. 1st Can. ed.) 727. [Eng.] Ex parte Krans, 1 Barn. & C, 258, 2 Dowl. & R. 411, 25 Revised Rep. 389; Samuel v. Payne, 1 Dougl. K. B. 359; Rex v. Jackson, 1 East, P. C. 298; Rex v. Hunt, 1 Moody, C. C. 93; Rex v. Howarth, 1 Moody, C. OC. 207; Stonehouse v. Elliott, 6 T. R. 315, 1 Esp. 272, 3 Revised Rep. 183; Hadley v. Perks, L. R. 1 Q. B. 456; Allen v. London & S. W. R. Co. L. RK. 6 Q. B. 65,40 L. J.Q.B. N.S. 55, 23 L. T. N.S. 612, 19 Week. Rep. 127, 11 Cox, C. C. 621. [Fed.] Kurtz v. Moffitt, 115 U. 8. 487, 29 L. ed. 458, 6 Sup. Ct. Rep. 148, 1885. [Cal.] People v. Pool, 27 Cal. 572, 1865. [Conn.] Wrexford v. Smith, 2 Root, 171, 1795. [Ga.] Long v. State, 12 Ga. 293, 1852; Croom v. State, 85 Ga. 718, 21 Am. St. Rep. committing,’ or attempting to 179, 11 8. E. 1035, 1890. [Tll.] Kin- dred v. Stitt, 51 Ill. 401, 1869; Ryan v. Donnelly, 71 Ill. 100, 1873. [Ind.] Vandeveer v. Mattocks, 3 Ind. 479, 1852; Kercheval v. State, 46 Ind. 120, 1874; Kennedy v. State, 107 Ind. 144, 57 Am. Rep. 99, 6 N. E. 305, 7 Am. Crim. Rep. 422, 1886. [Ky.] Wright v. Com. 85 Ky. 123, 2 S. W. 904, 1887; Begley v. Com. 22 Ky. L. Rep. 1546, 60 S. W. 847, 1901. [Mass.] Rohan v. Sawin, 5 Cush. 285, 1850; Com. v. Carey, 12 Cush. 251, 1853. [N. H.] Mayo v. Wilson, 1 N. H. 53, 1817. [N. J.] Revek v. Mc- Gregor, 32 N. J. L. 70, 1866. [N. Y.] Burns v. Erben, 40 N. Y. 463, 1869; Hawley v. Butler, 54 Barb. 490, 1868; Randall’s Case, 5 N. Y. City Hall Rec. 141, 1820; Peorle v. Wolven, 2 Edm. Sel. Cas. 108, 7 N. Y. Leg. Obs. 89; Phillips v. Trull, 11 Johns. 486, 1814; People v. Adler, 3 Park. Crim. Rep. 249, 1856; Holley v. Mix, 3 Wend. 350, 20 Am. Dec. 702, 1829; Taylor v. Strong, 3 Wend. 384, 1829. [N. C.] Brockway v. Crawford, 48 N. C. (3 Jones, L.) 433, 67 Am. Dec. 250, 1856; State v. Bryant, 65 N. C. 327, 1871. [Or.] Lander v. Miles, 3 Or. 35, 1868. [S. C.] City Council v. Payne, 2 Nott & MC. 475, 1820. [Tex.] Doughty v. State, 33 Tex. 1, 1870; Lacy v. State, 7 Tex. App. 403, 1879; Staples v. State, 14 Tex. App. 136, 1883. [Utah] State v. Morgan, 22 Utah, 168, 61 Pac. 527, 1900. [Vt.] Re Powers, 25 Vt. 261, 1853. [Wis.] Keenan v. State, 8 Wis. 132, 1858. Compare: Alford v. State, 8 Tex. App. 545, 1880; Smith v. State, 13 Tex. App. 507, 1883. Arrest by private person on sus- picion, where felony has been com- mitted, as to, see 3 Cyc. 885. As to arrest for past felonies, by private person without a warrant, 494 CRIMINAL LAW. [§ 382 commit,® a felony in his presence, and also to prevent the com- mission of a felony. The same is true of all misdemeanors committed in the presence of the party making the arrest, where such misdemeanors amount to a breach of the public peace; * and as to misdemeanors not amounting to a breach of the public peace, a private person without a warrant may make an arrest, according to some authorities,® where he can do so without forcible entry for that purpose. Hence the fact that a person accused was not arrested by a lawful officer cannot be set up as a defense in a prosecution for a criminal act or of- fense.® see 2 Am. & Eng. Enc. Law, 2d ed. 885. Fleeing felon need not be pursued and arrested by a private person, un- less ordered to do so by peace officer. State v. Rutherford, 8 N. C. (1 Hawks) 457, 9 Am. Dec. 658, 1821. 2 Handcock v. Baker, 2 Bos. & P. 260, 5 Revised Rep. 587; Rex v. Hunt, 1 Moody, C. C. 93; Rex v. Howarth, 1 Moody, C. C. 207; Armes’ Case, Popham, 121, 23 Eng. Rul. Cas. 120. 8 [Eng.] Handcock v. Baker, 2 Bos. & P. 260, 5 Revised Rep. 287. [Ala.] Dill v. State, 25 Ala. 15, 1854. [N. Y.] Ruloff v. People, 45 N. Y. 213, 1871. 41 Hawk. P. C. chap. 63, §§ 11, 14, 21, 23; 2 Hawk. P. C. chap. 12, § 30. [Eng.] Rex v. Wigan, 1 Wm. Bl. 47; Fox v. Gaunt, 3 B. & Ad. 798, 1 L. J. K. B. N. S. 198, 1832; Price v. Seeley, 10 Clark & F. 28, 36; Holy- day v. Oxenbridge, Cro. Car. 234; Timothy v. Simpson, 1 Cromp. M. & R. 757, 5 Tyrw. 244, 6 Car. & P. 499, 4 L. J. Mag. Cas. N.S, 73; Grant v. Moser, 5 Mann. & G. 123, 6 Scott, N. R. 46, 2 Dowl. P. C. N.S. 928, 12 L. J.C. P. N.S. 146, 7 Jur. 854; Armes’ Case, Popham, 121, 23 Eng. Rul. Cas. 120; Baynes v. Brewster, 2 Q. B. 375, 1 Gale & D. 669, 11 L. J. Mag. Cas. N. 8S. 5, 6 Jur. 392; Webster v. Watts, 11 Q. B. 311, 12 Jur. 243, 17 L. J. Q. B. N.S. 73; Rex v. Pinney, 3 State Tr. N.S 11. [Canada] For- rester v. Clarke, 3 U. C. Q. B. 151. [Conn.] Knot v. Gay, 1 Root, 66, 1789, [TIll.] Smith v. Donelly, 66 Ill. 464, 1873. [N. Y.] Phillips v. Trull, 11 Johns. 486, 1814; Wallace’s Case, 4 N. Y. City Hall Rec. 111, 1819; People v. Morehouse, 25 N. Y. S. R. 294, 6 N. Y. Supp. 763, 1889. [Pa.] Respublica v. Montgomery, 1 Yeates, 419, 1795; Com. v. Daley, 2 Clark (Pa.) 361. [S. C.] State v. Jenkins, 14 Rich. L. 215, 94 Am. Dec. 132, 1867. Compare: Crumeill v. Hill, 2 N. Y. City Ct. Rep. 236. Arrest by private person without warrant must be at time of commis- sion of the misdemeanor. See Phil- lips v. Trull, 11 Johns, 486, 1814; Winn v. Hobson, 22 Jones & S. 330, 1887; State v. Campbell, 107 N. C. 948, 12 S. E. 441, 1890; Clifford v. Brandon, 2 Campb. 358, 11 Revised Rep. 237; 2 Hawk. P. C. chap. 12, § 20. Arrest to prevert breach of peace, made by private person without war- rant, is justifiable by the authorities. See 3 Cyc. 886. Breach of municipal ordinance; ar- rest cannot be made by private per- son in the absence of statute special- ly authorizing it. Union Depot & R. Co. v. Smith, 16 Colo. 361, 27 Pac. 829, 1891; Judson v. Reardon, 16 Minn. 431, Gil. 387, 1870. Suspicious night walker may be arrested by private person without a warrant. 2 Hawk. P. C. chap. 12, § 20. 5 As to misdemeanors not amount- ing to a breach of the peace, see 2 Am, & Eng. Enc. Law, 2d ed. 889. 6 Mitchell v. State, 126 Ga. 84, 54 S. E. 931, 1906. § 383] § 383. Coercion, compulsion, and duress. DEFENSES. 495 The fact that a crime is committed under coercion and compulsion, in fear of instant death, may be set up as a defense to the prosecution for the commission of such crime; but, to be available as a defense, the fear must be well-founded, and immediate and ac- tual danger of death or great bodily harm must be present,” and the compulsion must be of such a character as to leave no op- portunity to accused for escape® or self-defense in equal com- 1[Eng.] Rex v. Crutchley, 5 Car. & P. 133; MacGrowther Trial, 18 How. St. Tr. 391, Fost. C. L. 13; Stratton’s Case, 21 How. St. Tr. 1046-1223. [Fed.] Respublica v. M’Carty, 2 Dall. 86, 1 L. ed. 300, 1781; United States v. Fairclough, 4 Wash. C. C. 398, 402, Fed. Cas. No. 15,068, 18238. [Mich.] People v. Repke, 103 Mich. 459, 61 N. W. 861, 1895. [Tenn.] Morgan v. State, 3 Sneed, 475, 1856; Leach v. State, 99 Tenn. 584, 42 S. W. 195, 1897. [Tex.] Paris v. State, 35 Tex. Crim. Rep. 82, 31 8. W. 855, 1895. As to coercion as a defense to a prosecution for crime, see mono- graphic note in 106 Am. St. Rep. 721-728. Compulsion by enemy in time of war. See 4 Bl. Com. 30; Respublica v. Marty, 2 Dall. 86, 1 L. ed. 300, 1781. Necessity forcing man to do an act justifies him, because no man can be guilty of a crime without the will and intent in his mind. When a man is absolutely, by natural neces- sity, forced, his will does not go along with the act. Lord Mansfield in Stratton’s Case, 21 How. St. Tr. 1046-1223. 2[Fed.] United States v. Haskell, 4 Wash. C. C. 402, Fed. Cas. No. 15,321, 1823. [Ala.] Thomas v. State, 134 Ala. 126, 32 So. 130, 1902. [Ind.] Ross v. State, 169 Ind. 888, 82 N. E. 781, 1907. [Tex.] Car- lisle v. State, 37 Tex. Crim. Rep. 108, 38 S. W. 991, 1897. Aiding in robbery at command of superior, merely, furnishes no de- fense to a prosecution for the crime. Thomas v. State, 134 Ala. 126, 32 So. 130, 1902. Compulsion that will excuse must be present, imminent, and have such a nature as to induce well-grounded fear in a man of ordinary fortitude and courage. Ross v. State, 169 Ind. 388, 82 N. E. 781, 1907. Fear of death necessary to re- lieve; such a fear as a man of ordi- nary fortitude and courage might justly yield to. United States v. Fairclough, 4 Wash. C. C. 398, Fed. Cas. No. 15,068, 1823. Fear of loss of property, or slight or remote injury to person, will not be sufficient to make defense avail- able. [Eng.] MacGrowther’s Trial, 18 How. St. Tr. 391, Fost. C. L. 138. [Fed.] Respublica v. Marty, 2 Dall. 86, 1 L. ed. 300, 1781; United States v. Vigol, 2 Dall. 346, 1 L. ed. 409, Fed. Cas. No. 16,621, 1795. [Ga.] McCoy v. State, 78 Ga. 490, 3 S. E. 768, 1887. [Mich.] People v. Repke, 103 Mich. 459, 61 N. W. 861, 1895. [Tenn.] Morgan v. State, 3 Sneed, 475, 1856. Request, demand, or persuasion of another furnishes no defense. Carlisle v. State, 37 Tex. Crim. Rep. 108, 38 S. W. 991, 1897. Threat of future injury to person will not be sufficient to raise a de- fense. People v. Repke, 103 Mich. 459, 61 N. W. 861, 1895. Well-grounded fear not existing, accused cannot excuse themselves in point of law by the allegation that they acted under the impulse of fear. United States v. Haskell, 4 Wash. C. C. 402, Fed. Cas. No. 15,321, 1823. 8 Arp v. State, 97 Ala. 5,19 L.R.A. 357, 88 Am. St. Rep. 137, 12 So. 301, 9 Am. Crim, Rep. 517, 1892; State v. Nargashian, 26 R. I. 299, 106 Am. St. Rep. 715, 58 Atl. 953, 1904. Actual presence of party threaten- ing, necessary. Thus, where one who 496 bat.4 CRIMINAL LAW. [§ 383 It would be a most dangerous rule if a defendant could shield himself from prosecution for crime by merely setting up a fear from or because of a threat of a third person.* case of a married woman a different rule prevails. But in the Where she commits a crime in the presence of her husband, except the crimes of treason, murder, and certain other crimes mala in se, she is presumed to have acted under his direction and by his coercion, and this will constitute a complete defense to the prose- cution for the crime.® had threatened to take the life of defendant if he refused to kill an- other was a mile away at the time of the commission of the crime, but defendant, believing the threat would be executed, to save his own life, killed the man, as directed, he was held guilty of deliberate murder. {Mont.] State v. Fisher, 23 Mont. 540, 59 Pac. 919, 1899. [R.I.] State v. Nargashian, 26 R. I. 299, 106 Am. St. Rep. 715, 58 Atl. 953, 3 A. & E. Ann. Cas. 1026, 1904. [Tex.] Paris v. State, 35 Tex. Crim. Rep. 82, 31 S. W. 855, 1895. Threat made three days before the deed, that party would kill defend- ant if he did not go with and assist in the crime, held to be no defense; People v. Repke, 103 Mich. 459, 61 N. W. 861, 1895. 4Fear as an excuse for crime has never been received by the law. Ne man, from fear of circumstances to himself, has the right to make him- self a party to committing mischief on mankind. Lord Dennan in Reg. v. Tyler, 8 Car. & P. 616, 1838. See Reg. v. Dudley, L. R. 14 Q. B. Div. 273, 560, 54 L. J. Mag. Cas. N.S. 32, 52 L. T. N. S. 107, 33 Week. Rep. 347, 15 Cox, C. C. 624, 49 J. P. 69, 5 Am. Crim. Rep. 559. —Assistance in robbing deceased after danger had passed, held to make accused as guilty as if such danger had never threatened him. Baxter v. People, 8 Ill. 368, 1846. Rather than take risk to himself in equal combat with a relentless companion, accused cannot, with any degree of legal palliation, elect a course absolutely secure to himself, and slay an innocent man. Leach yv. State, 99 Tenn. 584, 42 S. W. 195, 1897. While a person may take the life of his assailant to prevent the in- fliction of grievous bodily harm upon himself, or for the purpose of pre- serving his own life, there is no principle of law which would justi- fy or excuse him in taking the life of an innocent man to protect him- self. Rizzolo v. Com. 126 Pa. 54, 17 Atl. 520, 1889. 5 State v. Nargashian, 26 R. I. 299, 106 Am. St. Rep. 715, 58 Atl. 953, 3 A. & E. Ann. Cas. 1026, 1904. 6 [Eng.] Reg. v. Dykes, 15 Cox, C. C. 771. [Iowa] State v. Fitzgerald, 49 Iowa, 260, 31 Am. Rep. 148, 3 Am. Crim. Rep. 1, 1878. [Me.] State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422, 1871. [Mass.] Com. v. Neal, 10 Mass. 152, 6 Am. Dec. 105, 1813. [N. H.] State v. Harvey, 3 N. H. 65, 1824 [N. Y.] Cassin v. Delany, 38 N. Y. 178, 1868. [N. C.] State v. Wil- liams, 65 N. C. 398, 1871. [Ohio] Davis v. State, 15 Ohio, 72, 4 Am. Dec. 559, 1846. As to coercion of wife by hus- band, as an excuse for crime and a defense to a prosecution therefor, see monographic notes in 106 Am. St. Rep. 725, and 19 L.R.A. 358. Crimes mala in se, and crimes where the wife is presumed to be the principal agent, not within the rule. Com. v. Neal, 10 Mass. 152, 6 Am. Dec. 105, 1813; Com. v. Wood, 97 Mass. 225, 1867; State v. Bentz, 11 Mo, 27, 1847, Felony of inferior degree, or tort, committed by wife in the presence and by the direction of her husband, does not render her personally liable in a prosecution therefor, To ex- § 384] § 384. Condonation and settlement. DEFENSES. 497 The fact that the party injured has condoned the offense, or has settled with the accused for the damage occasioned by the criminal act, will not afford a defense in a prosecution by the proper officers of the state for the commission of the offense or crime, where it is of such a character as to affect the public interest and welfare in addition to the rights of the particular party injured.’ The empt her from liability, two concur- rent circumstances must exist: (1) The presence and (2) the command of her husband. An offense com- mitted by his direction, but not in his presence, does not exempt her from liability; nor his presence, if unaccompanied by his direction. See [Ky.] Curd v. Dodds, 6 Bush, 681, 1869. [Mass.] Com. v. Neal, 10 Mass. 152, 6 Am. Dec. 105, 1813. {Minn.] Brazil v. Moran, 8 Minn. 236, Gil. 205, 83 Am. Dec. 772, 1863. [S. C.] McKeown v. Johnson, 1 M’Cord, L. 578, 10 Am. Dec. 698, 1822. —Presence of husband presump- tive proof of his direction, but it is not conclusive, and the truth may be establised by competent evi- dence. [Eng.] Reg. v. Cruse, 8 Car. & P. 553, 2 Moody, C. C. 53 (as by showing husband a cripple in bed, and incapable of coercing his wife) [Ark.] Freel v. State, 21 Ark. 212, 1860; Edwards v. State, 27 Ark. 493, 1872. [Me.] Marshall v. Oakes, 51 Me. 308, 1864; State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422, 1871; Ferguson v. Brooks, 67 Me. 251, 1877. [Minn.] Brazil v. Moran, 8 Minn. 236, Gil. 205, 83 Am. Dec. 772, 1868. [N. Y.] Cassin v. De- laney, 38 N. Y. 178, 1868; Wagener v. Bill, 19 Barb. 321, 1855; White v. ‘Wager, 32 Barb. 250, 1860. [N. C.] State v. Williams, 65 N. C. 398, 1871. [Ohio] Davis v. State, 15 Ohio, 72, 45 Am. Dec. 559, 1846. [S. C.] Charleston v. Van Roven, 2 M’Cord, L. 465, 1823. To establish the fact of presence of the husband, it is not necessary to show that act was done literally in his sight; if he was near enough for the wife to be under his influence , and control, this is sufficient. Com. v. Burk, 11 Gray, 437, 1858; Com. Crim. L. Vol. I.—32, v. Welch, 97 Mass. 593, 1867; Com. v. Munsey, 112 Mass. 287, 1873. As to presumption of marital co- ercion in cases of grave felony, see note in 33 Am. St. Rep. 93. As to torts committed by wife not in husband’s presence, see note in 6 Am. Dec. 107, Keeping bawdyhouse not within the rule, and wife cannot set up her coverture as a defense. 4 BI. Com. 29; Com. v. Wood, 97 Mass. 225, 1867; State v. Bentz, 11 Mo. 27, 1847. Offenses committed in absence of husband, though by his direction; wife not relieved from liability therefor by her coverture. Com. v. Feeney, 13 Allen, 560, 1866 (and she alone may be prosecuted); Com. v. Gannon, 97 Mass. 547, 1867; Com. v. Munsey, 112 Mass. 287, 1873; State v. Potter, 42 Vt. 495, 1869. —Mere proximity, as distinguished from actual presence of husband, in- sufficient to excuse wife under in- dictment for illegal sale of intoxi- cating liquors. State v. Shee, 13 R. I. 535, 1882. But the rule is otherwise in those cases where the husband is actually present at time of sale. State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422, 1871. 1[Fed.] United States v. George, 6 Blatchf. 406, Fed. Cas. No. 15,198, 1869. [Ala.] May v. State, 115 Ala. 14, 22 So. 611, 1896. [Ark.] Fleener v. State, 58 Ark. 98, 23 S. W. 1, 1893; Donohoe v. State, 59 Ark, 875, 27 S. W. 226, 1894. ([Cal.] People v. DeLay, 80 Cal. 52, 22 Pac. 90, 8 Am. Crim. Rep. 185, 1889 (at offer to return money embezzled). [Fia.] Thalheim v. State, 38 Fla. 169, 20 So. 938, 1896. [Ga.] McCoy v. State, 15 Ga. 205, 1854; McDaniel v. State, 27 Ga. 197, 1859; Statham 498 CRIMINAL LAW. [§ 384 same is true of the subsequent ratification of an unauthorized act which, having been done without authority, was a crime.” § 385. Conviction or acquittal of another. The convic- tion or acquittal of another for the same crime is not a bar to a criminal prosecution, and cannot be set up as a defense,’ even in those cases where the parties are jointly charged with the crime.” v. State, 41 Ga. 507, 1871; Robson v. State, 83 Ga. 166, 9 S. E. 610, 1889; Williams v. State, 105 Ga. 606, 31 S. E. 546, 1898. [Idaho] State v. Fowler, 13 Idaho, 317, 89 -Pac. 757, 1907 (rape). [Ind.] State v. Bain, 112 Ind. 335, 14 N. E. 232, 1887 (unlawful cohabitation); Dean v. State, 147 Ind. 215, 46 N. E. 528, 1897 (embezzlement). [Iowa] State v. Whalen, 98 Iowa, 662, 68 N. W. 554, 1896 (seduction). [La.] State v. Thompson, 32 La. Ann. 796, 1880; State v. Frisch, 45 La. Ann. 1283, 14 So. 182, 1893. [Mass.] Com. v. Slattery, 147 Mass. 423, 18 N. E. 399, 1888; Com. v. Brown, 167 Mass. 144, 45 N. E. 1, 1896. [Mo.] State v. Pratt, 98 Mo. 482, 11 8. W. 977, 1889; State v. Noland, 111 Mo. 473, 19 S. W. 715, 1892; State v. Tull, 119 Mo. 421, 24 S. W. 1010, 1893. [Or.] Saxon v. Conger, 6 Or. 388, 1877. [Tex.] Shultz v. State, 5 Tex. App. 390, 1879; Countee v. State, — Tex. Crim. Rep. —, 33 S. W. 127, 1895. [Va] Barker v. Com. 90 Va. 820, 20 S. E. 776, 9 Am. Crim. Rep. 614, 1894. [Wyo.] Ivinson v. Pease, 1 Wyo. 277, 1875. As to condonation and settlement, see the various titles of the crimes treated in these volumes. In misdemeanor a different rule prevails under statutory provisions. See [Ga.] Sanders v. State, 4 Ga. App. 850, 62 S. E. 567, 1908 (riding horse without authority; [N. Y.] People v. Bishop, 5 Wend. 111, 1830 (assault and battery); Cleveland v. Cromwell, 110 App. Div. 82, 96 N. Y. Supp. 475, 1905. [Pa.] Rushworth v. Dwyer, 1 Phila. 26, 1850 (assault and battery). 2As to ratification and its effect upon criminal prosecution, see supra, §§ 180, et seq. Thus, the conviction of a man jointly charged with 1[Cal.] People v. Bearss, 10 Cal. 68, 1858; People v. Johnson, 47 Cal. 122, 1873. [Ga.] Dumas v. State, 62 Ga. 58, 1878. [Ky.] Clark v. Com. 14 Bush, 166, 1878. [Mo.] State v. Moorehead, 17 Mo. App. 328, 1885. [N. Y.] People v. Mullins, 5 App. Div. 172, 39 N. Y. Supp. 361, 1869. [N. C.] State v. Simpson, 133 N. C. 676, 45 S. E. 567, 15 Am. Crim. Rep. 611, 1908. [Or.] State v. Branton, 33 Or. 533, 56 Pac. 267, 1899. [Tex.] Alonzo v. State, 15 Tex. App. 378, 49 Am. Rep. 207, 1884; Ledbetter v. State, 21 Tex. App. 344, 17 S. W. 427, 1886; Goforth v. State, 22 Tex. App. 405, 3 S. W. 332, 1886; Craig y. State, 49 Tex. Crim. Rep. 295, 92 S. W. 416, 1906. [Va.] Williams v. Com. 85 Va. 607, 8 S. E. 470, 1889. Conviction of one jointly indicted for murder may be shown by a de- fendant. State v. Dunn, 116 Iowa, 219, 89 N. W. 984, 1902. Evidence of trial and conviction of another, or of an acquital, on an- other indictment for the same of- fense, is admissible. Clark v. Com. 14 Bush, 166, 1878. Fornication charged; acquittal of one jointly charged with the offense is no bar; Ledbetter v. State, 21 Tex. App. 344, 17 8. W. 427, 1886. Illegal sale on Sunday of intoxi- cating liquors; on trial of saloon keeper therefor, record of conviction of his barkeeper for the same offense is inadmissible in evidence. People v. Mullins, 5 App. Div. 172, 39 N. Y. Supp. 361, 1869; Craig v. State, a Tex. Crim. Rep. 295, 92 S. W. 416, 906. 2 [Iowa] State v. McClintock, 1 G. Greene, 392, 1848; State v. Lee, 91 Iowa, 499, 60 N. W. 119, 1894; State v. Fertig, 98 Iowa, 139, 67 N. W. 87, 1869. [Ky.] Com. v. McChord, 2 § 386] DEFENSES, 499 adultery has no effect upon the prosecution of the woman charged as being implicated in the same offense.* § 386. Criminal proceedings; imprisonment for fine and costs. Commitment of one convicted of an offense against the criminal laws, until fine and costs are paid, is not within the constitutional prohibition against imprisonment for debt, and is valid,’ in all cases where the legislature was vested with power to visit the act with penal sanctions.? Dana, 242, 1834; Clark v. Com. 14 Bush. 166, 1878. [Mo.] State v. Phillips, 24 Mo. 475, 1857; State v. Orr, 64 Mo, 339, 1876. [N. Y.] People v. Kief, 126 N. Y. 661, 27 N. E. 556, 1891, affirming 58 Hun, 337, 11 N. Y. Supp. 926, 12 N. Y. Supp. 896, 1890. [N. C.] State v. Weaver, 93 N. C. 595, 1885. [Ohio] Kazer v. State, 5 Ohio, 280, 1831 [Or.] State v. Bowker, 26 Or. 309, 38 Pace. 124, 9 Am. Crim. Rep. 365, 1894. [Tex.] Harper v. State, 11 Tex. App. 1, 1881; Bell v. State, 33 Tex. Crim. Rep. 163, 25 S. W. 769, 1894. Crime being joint, trial and acquit- tal of one of the parties may be set up on behalf of the other. Baumer v. State, 49 Ind. 544, 19 Am. Rep. 691, 1875. Evidence of trial and conviction of one jointly charged with obstructing street, on another indictment, has no tendency to prove accused com- mitted a similar offense. Clark v. Com. 14 Bush. 166, 1878. Husband raping wife by procuring or assisting another to have sexual intercourse with her; on joint in- dictment for the offense, an acquittal of latter is a bar to trial of husband. State v. Haines, 51 La. Ann. 731, 44 . L.R.A. 837, 25 So. 372, 1899. Joint indictment for murder; record of conviction under that in- dictment, of one of accused parties, not admissible in evidence at subse- quent trial of the other, even though the evidence tends to show him ac- cessory before the fact. People v. Kief, 126 N. Y. 661, 27 N. E. 556, 1891, affirming 58 Hun, 337, 11 N. Y. Supp. 926, 12 N. Y. Supp. 896, 1890. Joint offense charged against sever- al; acquittal under indictment there- for will not prevent subsequent , evidence. prosecution against them individual- ly. Com. v. McChord, 2 Dana, 242, 1834. Murder in first degree charged against two; fact that one is con- victed of murder in second degree will not bar subsequent trial of the other on the indictment. State v. Lee, 91 Iowa, 499, 60 N. W. 119, 1894. Record of acquittal of one jointly indicted for larceny, who is princi- pal witness on subsequent trial of the other, not competent evidence. Harper v. State, 11 Tex. App. 1, 1881. Record of conviction or acquittal of one jointly charged proves no ma- terial fact, and is inadmissible in People v. Bearss, 10 Cal. 68, 1885. 3 Campbell v. State, 183 Ala. 158, 32 So. 635, 1902. Adultery charged; former acquit- tal of paramour is no defense. Alonzo v. State, 15 Tex. App. 378, 49 Am. Rep. 207, 1884; Solomon v. State, 39 Tex. Crim. Rep. 140, 45 S. W. 706, 1898. See State v. Simpson, 133 N. C. 676, 45 S. E. 567, 15 Am. Crim. Rep. 611, 1903. 1 [Ill] Kennedy v. People, 122 Il. 649, 13 N. E. 213, 1887. [Mass.] Com. v. Gannon, 97 Mass. 547, 1867; Com. v. Munsey, 112 Mass. 287, 1873. [Tenn.] Mosley v. Gallatin, 10 Lea. 494, 1882. [Tex.] Dixon v. State, 2 Tex. 481, 1847. [Vt.] State v. Potter, 42 Vt. 495, 1869. See full collection of authorities in note 37 Am. St. Rep. 758. 2[Ala.] Caldwell v. State, 55 Ala. 133, 1876. [Ill.] Kennedy v. People, 122 Ill. 649, 13 N. E. 213, 1887. [Ind.] McCool v. State, 23 Ind. 127, 1864; Smith v. State, 23 Ind. 132, 500 § 387. Custom and usage. CRIMINAL LAW. Is 387 A custom and usage pre- vailing in a community or neighborhood cannot be set up as: a defense to a prosecution for crime,’ because such custom and usage cannot operate to supersede a criminal statute, or to overthrow the rules of evidence by which the commission of an offense is proved,” even 1864. [Iowa] Boyer v. Kinnick, 90 Iowa, 74, 57 N. W. 691, 1894. [Kan.] Re Ebenhack, 17 Kan. 618, 1877; Re Boyd, 34 Kan. 570, 9 Pac. 240, 1886. [N. C.] State v. Wallin, 89 N. C. 578, 1883. [Tex.] Dixon v. State, 2 Tex. 481, 1847. 1 This is on a well-established rule that custom or usage cannot be proved to contravene a statute or a rule of law. [Eng.] Reg. v. Reed, 12 Cox, C. C. 1 [D. C.] Barnes v. District of Columbia, 27 App. D. C. 101, 1906. [Fla.] Hendry v. State, 39 Fla. 235, 22 So. 647, 1897. [Ind.] Bankus v. State, 4 Ind. 114, 1853. [Ky.] Clark v. Com. 111 Ky. 443, 63 S. W. 740, 1901. [Mass.] Com. v. Doane, 1 Cush. 5, 1848. [Neb.] Bolln v. State, 51 Neb. 581, 71 N. W. 444, 1897, affirmed in 107 U. S. 83, 44 LL. ed. 382, 20 Sup. Ct. Rep. 287, 1900; Crockford v. State, 73 Neb. 1, 119 Am. St. Rep. 876, 102 N. W. 70, 1905. [N. Y.] Markham v. Jaudon, 41 N. Y. 236, 1869; Bradley v. Wheeler, 44 N. Y. 495, 1871; Baker v. Drake, 66 N. Y. 518, 23 Am. Rep. 80, 1876; Hopper v. Sage, 112 N. Y. 530, 8 Am. St. Rep. 771, 20 N. E. 350, 1889; Colgate v. Pennsyl- vania Co. 31 Hun, 297, 1883. [Ohio] Columbus & H. Coal & I. Co. v. Tucker, 48 Ohio St. 41,12 L.R.A. 577, 29 Am. St. Rep. 528, 26 N. E. 630, 1891. [Tenn.] Jackson v. National Bank, 92 Tenn. 154, 18 L. R. A. 663, 36 Am. St. Rep. 81, 20 S. W. 802, 1893. [Tex.] Missouri P. R. Co. v. Fagan, 72 Tex. 127, 2 L.R.A. 75, 13 Am. St. Rep. 776, 9 S. W. 749, 1888. Entering into and forming part of contract; usage and custom may be proved when reasonable, certain, uniform, well-settled, and not in op- position to statute or fixed rules of law. Walls v. Bailey, 49 N. Y. 464, 10 Am. Rep. 407, 1872; Missouri P. R. Co. v. Fagan, 72 Tex. 127, 2 L.R.A. though such custom and usage 75, 13 Am. St. Rep. 776, 9 S. W. 749, 1888. Sufficiently notorious to warrant legal presumption that parties con- tracted with reference to it. [Me.] Randall v. Smith, 68 Me. 105, 18 Am. Rep. 200, 1873. [Md.] Citizens’ Bank v. Graffin, 31 Md. 507, 1 Am. Rep. 66, 1869. [Mass.] Brown v. Foster, 113 Mass. 136, 18 Am. Rep. 463, 1873. [Ohio] Columbus & H. Coal & I. Co. v. Tucker, 48 Ohio St. 41, 12 L.R.A. 577, 29 Am. St. Rep. 528, 26 N. E. 630, 1891. See note 18 Am. Rep. 204. Negligence cannot be excused on ground of custom. [Mass.] Miller v. Pendleton, 8 Gray, 547, 1857; Judd v. Fargo, 107 Mass. 264, 1871; Bailey v. New Haven & N. Co. 107 Mass. 496, 1871; Hinckley v. Barn- stable, 109 Mass. 126, 1872. [Mo.] Crocker vy. Schureman, 7 Mo. App. 358, 1879. [N. H.] Sewall’s Falls Bridge v. Fisk, 23 N. H. 171, 1851; Littleton v. Richardson, 32 N. H. 59, 1855. [N. Y.] Cleveland v. New Jersey 8. B. Co. 5 Hun, 523, 1875. [Ohio] Columbus & H. Coal & I. Co. v. Tucker, 48 Ohio St. 41, 12 L.R.A. 577, 29 Am. St. Rep. 528, 26 N. E. 630, 1891. 2[Neb.] Crockford v. State, 73 Neb. 1, 119 Am. St. Rep. 876, 102 N. W. 70, 1905. [N. Y.] People v. Fletcher, 44 App. Div. 199, 60 N. Y. Supp. 777, 14 N. Y. Crim. Rep. 328, 1899. [Tex.] Lawrence v. State, 20 Tex. App. 536, 1886; Vick v. State, — Tex. Crim. Rep. —, 69 8. W. 156, 1902. Positive law must not be contra- vened by. [La.] Cranwell v. The Fanny Fosdick, 15 La. Ann. 436, 77 Am. Dec. 190, 1860. [Mass.] Dickinson v. Gay, 7 Allen, 29, 83 Am. Dec. 656, 1863. [Mo.] South- western Freight & Cotton Press Co, v. Stanard, 44 Mo. 71, 100 Am. § 389] DEFENSES, 501 may have been for a long time acquiesced in by the community in which it prevails.? § 388. Death of prosecuting witness. The death of a prosecuting witness has no effect upon the crime charged, which is a past fact, and the character of the act is fixed by the law and the facts. Such death affects the ability of the state to make out a case merely, and cannot be set up in bar of a crim- inal prosecution." § 389. Decoy and entrapment. The fact that decoys were set, or a trap laid, by means of which a person was detected in the perpetration of a crime, cannot be set up as a defense to the prosecution therefor,’ where the crime was conceived by the Dec. 255, 1869. [N. Y¥.] Hopper v. Sage, 112 N. Y. 530, 8 Am. St. Rep. 771, 20 N. E. 350, 1889; Atkinson v. Truesdell, 127 N. Y. 230, 27 N. E. 844, 1891. [Tenn] Jackson v. Na- tional Bank, 92 Tenn. 154, 18 L.R.A. 663, 36 Am. St. Rep. 81, 20 S. W. 802, 1893. See notes in 77 Am. Dec. 194, 100 Am. Dec. 259, 8 Am. St. Rep. 775. 8 Bolin v. State, 51 Neb. 581, 77 N. W. 444, 1897, affirmed in 176 U. S. 88, 44 L. ed. 382, 20 Sup. Ct. Rep. 287, 1900. Usage not according to law, though universal, cannot be set up to control the law. [N. C.] Meyer vy. Dresser, 16 C. B. N. S. 646, 33 L. J.C. P. N.S. 289, 10 L. T. N.S. 612, 12 Week. Rep. 983. [Ohio] Ingle- bright v. Hammond, 19 Ohio, 337, 53 Am. Dec. 430, 1850; Columbus & H. Coal & I. Co. v. Tucker, 48 Ohio St. 41, 12 L.R.A. 577, 29 Am. St. Rep. 528, 26 N. E. 630, 1891. [Pa.] Stoever v. Whitman, 6 Binn. 416, 1814. 1Com. v. Cunningham, 5 Litt. (Ky.) 292, 1824; State v. Loftis, 3 Head, 500, 1859. 1Guilty intent to commit crime being formed, any person may fur- nished opportunities, or even lend as- sistance, to the criminal, with the commendable purpose of detection and punishment of the culprit. [Eng.] Rex v. Egginton, 2 Bos. & P. 508, 2 Leach, C. L. 913, 2 East, P. C. 494, 666, 5 Revised Rep. 689; Reg. v. Williams, 1 Car. & K. 195, 1843; Reg. v. Johnson, Car. & M. 218, 1841; Rex v. Ady, 7 Car. & P. 140; Rex v. Whittingham, 2 Leach, C. L. 912; Rex v. Holden, Russ, & R. C. C. 154, 2 Taunt. 334, 2 Leach, C. L. 1019, 11 Revised Rep. 600; Rex v. Dannelly, Russ. & R. C. C. 310. [Fed.] Price v. United States, 165 U.S. 311, 41 L. ed. 727, 17 Sup. Ct. Rep. 366, 1897; United States v. Whittier, 5 Dill. 35, Fed. Cas. No. 16,688, 1878. [Ala.] Thompson v. State, 106 Ala. 67, 17 So. 512, 9 Am. Crim. Rep. 199, 1894; Borck v. State, — Ala. —, 39 So. 580, 1905. [Cal.] People v. Hanselman, 76 Cal. 460, 9 Am. St. Rep. 288, 18 Pac. 425, 1888. [Colo.] People ex rel. Ster- ling v. Chipman, 31 Colo. 90, 71 Pae. 1108, 1908. [Ga.] O’Halloran v. State, 31 Ga. 206, 1860; Varner v. State, 72 Ga. 745, 1884; Dalton v. State, 113 Ga. 1037, 39 S. E. 468, 1901. [Ind.] Thompson v. State, 18 Ind. 386, 81 Am. Dec. 364, 1862. [Iowa] State v. Abley, 109 Iowa, 61, 46 L.R.A. 862, 77 Am. St. Rep. 520, . 80 N. W. 225, 12 Am. Crim. Rep. 279, 1899. [Ken.] State v. Jansen, 22 Kan. 498, 1879; State v. Stickney, 53 Kan. 308, 42 Am. St. Rep. 284, 36 Pac. 714, 1894. [La.] State v. Duncan, 8 Rob. (La.) 562, 1844; State v. Dudoussat, 47 La. Ann. 977, 17 So. 685, 1895. [Mich.] People v. McCord, 76 Mich. 200, 42 N. W.1106, 8 Am. Crim. Rep. 117, 1889; People v. Murphy, 93 Mich. 41, 55 N. W. 1042, 1892; People v. Curtis, 95 Mich. 212, 54 N. W. 767, 1893; 502 CRIMINAL LAW. [§ 389 accused, and not suggested by the prosecuting witness, or those acting for him duly authorized in the premises,? and the own- People v. Liphardt, 105 Mich. 80, 62 N. W. 1022, 1895; People v. Everts, 112 Mich. 194, 70 N. W. 4380, 1897. [Mo.] State v. West, 157 Mo. 309, 57 S. W. 1071, 1900; State v. Dennis, — Mo. App. —, 67 8. W. 1101, 1902; State v. Quinn, 94 Mo. App. 59, 67 S. W. 974, affirmed in 170 Mo. 176, 70 S. W. 1117, 1902; State v. Lucas, 94 Mo. App. 117, 67 S. W. 971, 1902. [Neb.] State v. Sneff, 22 Neb. 481, 35 N. W. 219, 1887. [N. Y.] People v. Krivitzky, 168 N. Y. 182, 61 N. E. 175, 10 N. Y¥. Anno. Cas. 245, 1901, affirming 60 App. Div. 307, 70 N. Y. Supp. 173, 1901; People v. Conrad, 182 N. Y. 529, 74 N. E. 1122, af- firming 102 App. Div. 566, 92 N. Y. Supp. 606, 1905; People v. DuVeau, 105 App. Div. 381, 94 N. Y. Supp. 225, 19 N. Y. Crim. Rep. 268, 1905. {N. C.] State v. Adams, 115 N. C. 775, 20 8. E. 722, 1894. [N. D.] State v. Currie, 13 N. D. 655, 69 L.R.A. 405, 112 Am. St. Rep. 687, 102 N. W. 875, 1905. [Pa.] Com. v. Seybert, 4 Pa. Co. Ct. 152, 1888. [S. C.] State v. Covington, 2 Bail. L. 569, 1832. [Tenn.] Dodge v. Brit- tain, Meigs, 84, 1838. [Tex.] Alex- ander v. State, 12 Tex. 540, 1854; Pigg v. State, 43 Tex. 108, 1875; Conner v. State, 24 Tex. App. 245, 6 S. W. 138, 1887. Traps may be set to catch the guilty, and the business of trapping has, with the sanction of the courts, been carried very far. Opportunity to commit crime may, by design, be rendered the most complete; and if the accused embrace it, he will still be guilty. Property may be left ex- posed for the express purpose that a suspected thief may commit him- self by stealing it. The owner is not bound to take any measures for security. He may repose upon the law alone, and the law will not in- quire into his motives for trusting it. Mr. Justice Bleckley in Williams v. State, 55 Ga. 395, 1 Am. Crim. Rep. 413, 1875. 2State v. Currie, 13 N. D. 655, 69 L.R.A. 405, 112 Am. St. Rep. 687, 102 N. W. 875, 1905. As to entry by consent not being burglary, see supra, §§ 180, 181, and note in 91 Am. Dec. 482. Active measures to persuade ac- cused, and induce the commission of the crime, by the party injured, or those acting for him duly authorized in the premises, constitute « com- plete defense. [Colo.] Connor v. People, 18 Colo. 373, 25 L.R.A. 341, 386 Am. St. Rep. 295, 33 Pac. 159, 1893. [La.] State v. Geze, 8 La. Ann. 52, 1853. [Mich.] People v. McCord, 76 Mich. 200, 42 N. W. 1106, 8 Am. Crim. Rep. 117, 1889. Byrd, J., says: “It is difficult to conceive how a person can be guilty of burglary who enters a house with a key voluntarily furnished him by the owner to enter, knowing at the time that the person wishes to enter to steal. It is, in effect, a consent to the entry by such person, and is not even a trespass. The witness Wat- kins was the servant and agent of the owner of the house in this trans- action; and in this case, whatever the agent did in conformity to his instructions and general authority must be treated as done by his prin- cipal. If, then, the owner of the house had been in the place of Wat- kins, and had done what the latter did to get the prisoner into the house, certainly such an entry would not have been a trespass, much less a burglary. The prisoner put the key in the door, and, as the witness Watkins ‘thought, turned the bolt of the lock. But his evidence shows that, soon afterwards, the witness himself turned the bolt, and called Allen ‘to come on,’ and he followed the witness into the house; and as he did so without any breaking, actual or constructive, he was not guilty of burglary, however feloni- ous may have been his intent in entering. 1 Hale, P. C. 553, 554. It is somewhat like a man being robbed by his own consent, although the supposed robbers did not know of the consent.” Allen v. State, 40 Ala. 334, 91 Am. Dec. 477, 1867. See McDaniel’s Case, Fost. C. L. 121; § 389] DEYENSES. 503 er did not willingly part with and consent to the taking of the property.’ Decoys * or detectives apparently acting in concert Reg. v. Johnson, Car. & M, 218; Rex v. Eggington, 2 East, P. C. 494, 666; 2 Bos. & P. 508, 2 Leach, C. L. 913, 5 Revised Rep. 689; Reane’s Case, 2 East, P. C. 734. Owner, or his servant duly au- thorized in the premises, inaugurat- ing or actively encouraging or as- sisting in the commission of the crime, will have the effect to de- prive the act of its criminal char- acter. [Eng.] Reg. v. Johnson, Car. & M. 218. [Ala.] Allen v. State, 40 Ala. 334, 91 Am. Dec. 477, 1867. [Colo.] Connor v. People, 18 Colo. 373, 25 L.R.A. 341, 36 Am. St. Rep. 295, 36 Pac. 159, 1893. [Or.] State v. Hull, 33 Or. 56, 72 Am. St. Rep. 694, 54 Pac. 159, 1898. “Can owner directly, through his agent, solicit a suspected party to come forward and commit the crimi- nal act, and then complain of it as a crime, especially where the agent, to whom he has intrusted the con- duct of the transaction, puts his own hand into the corpus delicti, and assists the accused to perform one or more of the acts necessary to consti- tute the offense? Should not the owner and his agent, after making everything ready and easy, wait pas- sively and let the would-be crimi- nal perpetrate the offense for him- self in each and every essential part of it? It would seem to us this is the safer law, as well as the sounder morality, and we think it accords with the authorities.” Mr. Justice Bleckley in Williams v. State, 55 Ga. 395, 1 Am. Crim. Rep. 413, 1875, quoted and approved in State v. Hull, 33 Or. 56, 72 Am. St. Rep. 694, 54 Pac. 159, 1898. See [Eng.] Reg. v. Johnson, Car. & M. 218, 1841. [Colo.] Connor v. People, 18 Colo. 378, 25 L.R.A. 341, 36 Am. St. Rep. 295, 36 Pac. 159, 1893. [Ill] Love v. People, 160 Ill. 501, 32 L.R.A. 139, 48 N. E. 710, 1896. [Ind.] Thompson v. State, 18 Ind. 386, 81 Am. Dec. 364, 1862. [N. C.] State v. Adams, 115 N. C. 775, 20 S. E. 722, 1894. [S. C.] State v. Coving- ton, 2 Bail. L. 569, 1832. [Tenn.] Dodge v. Brittain, Meigs, 84, 1838; Kemp v. State, 11 Humph. 320, 1850. As to instigation to commit crime being a defense to prosecution there- for, see notes 81 Am. Dec. 365, 2 Am. St. Rep. 387; 25 L.R.A. 341- 347, Assisting in commission of act be- lieved to be a crime, the person as- sisted having no intention to commit the crime, but merely seeking to af- ford others an opportunity of appre- hending his assistant while in the act; such assistant is not guilty, un- less he committed some overt act which constituted the offense. [Mich.] People v. McCord, 76 Mich. 200, 42 N. W. 1106, 8 Am. Crim. Rep. 117, 1889. [Mo.] State v. Hayes, 105 Mo. 76, 24 Am, St. Rep. 360, 16 S. W. 514, 1891. [Tex.] Speiden v. State, 3 Tex. App. 156, 30 Am. Rep. 126, 1877. Consent given for purpose of de- coying or entrapping, although ac- cused at time of act did not know of the consent, relieves him of criminal liability. Connor v. People, 18 Colo. 373, 25 L.R.A. 341, 36 Am. St. Rep. 295, 36 Pac. 159, 1893; State v. Hull, 33 Or. 56, 72 Am. St. Rep. 694, 54 Pac. 159, 1898. See note in 2 Am. St. Rep. 387. As to consent to larceny, see note 72 Am. St. Rep. 700-705. Town furnishing money to buy drinks from saloon keeper selling in violation of ordinance; accused can- not be held on charge of selling liquor in violation of ordinance. Wilcox v. People, 17 Colo. App. 109, 67 Pac. 343, 1902. See, however, People ex rel. Sterling v. Chipman, 31 Colo. 90, 71 Pac. 1108, 1903. —Contrary doctrine held in Evans- ton v. Meyers, 172 Ill. 266, 50 N. E. 204, 1898, reversing 70 Ill. App. 205, 1897. 3 See supra, § 381. 4As to decoys generally, see [Colo.] People ex rel. Sterling v. Chipman, 31 Colo. 90, 71 Pac. 1108, 1903; Connor v. People, 18 Colo. 373, 25 L.R.A. 341, 36 Am. St. Rep. 295, 33 Pac. 159, 1893. [Mich.] People v. 504 CRIMINAL LAW. [§ 389 with the accused in the execution of a crime, the idea of which. originated with the accused, and was not suggested or induced by such decoys or detectives, will in nowise affect the character or criminality of the act, and cannot be set up as a defense in a prosecution therefor.’ The decoys or detectives, so long as they do not cease to be decoys and detectives, and become origi- nators of the criminal act, or do some overt act constituting the offense charged, are not guilty of the crime committed, although apparently lending their aid and co-operation.® § 390. Effect of license. There are certain businesses which cannot be conducted without first procuring a permit to do so, called a license; e. g., the business of selling intoxicat- ing and spirituous liquors.’ Such businesses are not legitimate businesses, are without a legal standing before the law, are sim- ply legalized outlaws.? The fact that a man has a license to conduct such a business cannot be set up as a defense in a prose- cution for violation of the law in the conduct of such busi- ness.® McCord, 76 Mich. 200, 42 N. W. 1106, 8 Am. Crim. Rep. 117, 1889. [N. Y.] People v. Mills, 91 App. Div. 331, 86 N. Y. Supp. 529, 18 N. Y. Crim. Rep. 125, affirmed in 178 N. Y. 274, 67 L.R.A. 131, 70 N. E. 786, 1904. As to decoys and entrapment, see full discussion in 17 A. & E. Ann. Cas. 295. Extent to which a party may go in setting out decoys and laying a trap to detect and punish crime is discussed in valuable notes in 8 Am. Crim. Rep. 123-126; 17 A. & E. Ann. Cas. 295-298. 5 Com. v. Hollister, 157 Pa. 13, 25 L.R.A. 349, 27 Atl. 386, 1893. Detective’s acts will not be at- tributed to accused. State v. Cur- rie, 13 N. D. 655, 69 L.R.A. 405, 112 Am. St. Rep. 687, 102 N. W. 875, 1905. 6 Love v. People, 60 Ill. 501, 32 L.R.A. 139, 48 N. E. 710, 1896; State v. Currie, 13 N. D. 655, 69 L.R.A. 405, 112 Am. St. Rep. 687, 102 N. W. 875, 1905. 1 Right to sell intoxicating liquors is neither a natural, an essential, nor an inherent right; but is one which the state may regulate or take away On the other hand, it has been held that the fact that absolutely. See, among other cases. [La.] New Orleans v. Smythe, 116 La. 685, 6 L.R.A.(N.S.) 722, 114 Am, St. Rep. 566, 41 So. 33, 1906. [N. H.] People v. Corron, 73 N. H. 434, 62 Atl. 1044, 6 A. & E. Ann. Cas. 486, 1905. [N. J.] Meehan v. Board of Excise, 73 N. J. L. 382, 64 Atl. 689, 1906. See notes in 114 Am. St. Rep. 570, 6 L.R.A. 721. 2This question ably and exhaust- ively treated by ex-judge Samuel R. Artman, of Indianapolis, Ind., in an interesting little volume collecting all the authorities, entitled “The Legalized Outlaw.” 8 Kissell v. Lewis, 156 Ind. 233, 59 N. E. 478, 1901; Blaufield v. State, 103 Tenn. 593, 53 S. W. 1090, 1899. See [Ind.] Tron v. Lewis, 31 Ind. App. 178, 66 N. E. 490, 1903. [Iowa] Carter v. Nicol, 116 Iowa, 519, 90 N. W. 352, 1902; Thomas v. Arie, 122 Towa, 538, 98 N. W. 380, 1904. [Kan.] State v. Engborg, 63 Kan. 853, 66 Pac. 1007, 1901. [Ky.] Varble v. Com. 3 Ky. L. Rep. 694, 1882; Com. v. Asbury, 104 Ky. 320, 47 S. W. 217, 1898; Com. v. Holland, 104 Ky. 323, 47 S. W. 216, 1898. [Mass.] Com. § 392]: . DEFENSES. 505 the owner has no license authorizing him to sell it cannot be set up as a defense for a destruction of intoxicating liquor.* By the common law, beer and spirituous liquor are property having a legitimate use,® and do not lose their character of property by being illegally offered for sale.® § 391. Failure to indict others. Every individual in a community is responsible for his own acts and conduct and in- fractions of the criminal law of the state, without regard to any usage or custom that prevails in the community,’ and with- out regard to the acts and conduct of others. Hence it cannot be set up as a defense to a prosecution for the commission of a crime or offense, that another individual or individuals who have committed the same offense have not been indicted.” § 392. Former conviction; autrefois attaint. The old common-law plea of autrefois attaint, as a bar to a prosecution for another felony of the same grade, has never been recog- nized in this country, except in Tennessee,’ having been ex- pressly repudiated everywhere else.” A trial, conviction, and sentence of life imprisonment for murder, are no defense to a subsequent prosecution for another murder, under which, if con- victed, sentence of death may be imposed.° v. Regan, 182 Mass. 22, 64 N. E. 407, 1902. [N. Y.] Re Lyman, 25 Misc. 638, 56 N. Y. Supp. 359, 1898. [N. D.] State ex rel. Sheeks v. Hilliard, 10 N. D. 436, 87 N. W. 980, 1901. [Vt.] State v. Scampini, 77 Vt. 92, 59 Atl. 201, 1904. 4Nation v. District of Columbia, 34 App. D. C. 453, 26 L.R.A.(N.S.) 996, 1910. 5 Kreiter v. Nichols, 28 Mich. 496, 1874; State ex rel. Kelly v. McMas- ter, 13 N. D. 58, 99 N. W. 58, 1904. 6 Tucker v. Adams, 63 N. H. 361, 1874. 1See ante, § 387. 2Smith v. State, 48 Tex. Crim. Rep. 509, 90 S. W. 37, 1905. 1Crenshaw v. State, Mart. & Y. 122, 17 Am. Dec. 788, 1827. 2[Ala.] Hawkins v. State, 1 Port. (Ala.) 475, 27 Am. Dec. 641, 1835. ‘[Miss.] Singleton v. State, 71 Miss. 782, 42 Am, St. Rep. 488, 16 So. 295, 1894. [S. C.] State v. McCarty, 1 Bay, 334, 1793. As to plea of autrefois attaint at common law, see 17 Am. Dec. 791. 8 [Cal.] People v. Majors, 65 Cal. 138, 52 Am. Rep. 295, 3 Pac. 597, 5 Am. Crim. Rep. 486, 1884. [TIll.] Peri v. People, 65 Ill. 17, 1872. [Tex.] Brown v. State, 50 Tex. Crim. Rep. 114, 95 S. W. 1039, 1906. [Utah] People v. Flynn, 7 Utah, 382, 26 Pac. 1114, 1891. [Wash.] Mea- gher v. Sprague, 31 Wash. 549, 72 Pac. 108, 1903. Conviction, judgment, and execu- tion upon one indictment, for a felony not capital, may be pleaded in bar to all other indictments for felonies not capital committed be- fore such conviction, judgment, and execution. Crenshaw v. State, 1 Mart. & Y. 122, 17 Am. Dec. 788, 1827 (this case stands alone in this country in permitting the plea of autrefois attaint). 506 CRIMINAL LAW. [§ 393 § 393. Former conviction or acquittal. The fact that there has been a former conviction or acquittal on a trial for an offense of a different grade, in connection with and growing out of the same act or state of facts, cannot be set up as a bar on a subsequent trial on an indictment charging an offense the es- sential elements of which are not the same.’ Thus, a conviction of assault and battery will be no bar to a trial for manslaugh-. ter, where the injuries result in death after the former convic- tion ;? acquittal of assault with deadly weapon, with intent to rob, will not be a bar to a conviction for robbery in taking money or other property from the person against his will, al- though both charges are based on the same state of facts; * con- viction of assault with a deadly weapon, with intent to commit murder, is not a bar to a subsequent prosecution for an attempt to commit robbery, although both offenses grow out of the same transaction, and are so closely connected in point of time as to be impossible to separate the evidence relating to them; * acquit- tal on an indictment for burning a business building is no bar to 1[Ala.] Dominick v. State, 40 Ala. 680, 91 Am. Dec. 496, 1867. [Cal.] People v. Majors, 65 Cal. 138, 52 Am. Rep. 295, 3 Pac. 597, 5 Am. Crim. Rep. 486, 1884; People v. Bentley, 77 Cal. 7, 11 Am. St. Rep. 225, 18 Pac. 799, 1888; People v. Kerrick, 144 Cal. 46, 77 Pac. 711, 1904. [Ind.] State v. Elder, 65 Ind. 282, 32 Am. Rep. 69, 1879. [Kan.] State v. Colgate, 31 Kan. 511, 47 Am. Rep. 507, 3 Pac. 846, 5 Am. Crim. Rep. 71, 1884. [Me.] State v. Littlefield, 70 Me. 452, 35 Am. Rep. 335, 1880. [N. H.] State v. Larkin, 49 N. H. 36, 6 Am. Rep. 456, 1869; State v. Buzzell, 58 N. H. 257, 42 Am. Rep. 586, 4 Am. Crim. Rep. 410, 1878. [S. D.] State v. Caddy, 15 8. D. 167, 91 Am. St. Rep. 666, 87 N. W. 927, 1901. [Tex.] Johnson v. State, 19 Tex. App. 453, 53 Am. Rep. 385, 1885; Curtis v. State, 22 Tex. App. 227, 58 Am. Rep. 635, 3 S. W. 86, 1886. [Wash.] State v. Reiff, 14 Wash. 664, 45 Pac. 318, 1896. As to former acquittal or convic- tion as a defense, see notes 41 Am. Rep. 475, 11 Am. St. Rep. 228, 14 an St. Rep. 572, 28 Am. St. Rep. 930. As to former jeopardy, what con- stitutes, and when available as a de- fense, see infra, § 394. 2State v. Littlefield, 70 Me. 452, 35 Am. Rep. 335, 1880; Johnson v. State, 19 Tex. App. 453, 53 Am. Rep. 385, 1885; Curtis v. State, 22 Tex. App. 227, 58 Am. Rep. 635, 3 S. W. 86, 1886. 3 People v. Kerrick, 144 Cal. 46, 77 Pac. 711, 1904; State v. Caddy, 15 S. D. 169, 91 Am. St. Rep. 666, 87 N. W. 927, 1901. 4 People v. Majors, 65 Cal. 138, 52 Am. Rep. 295, 3 Pac. 597, 5 Am. Crim. Rep. 486, 1884; People v. Bent- ley, 77 Cal. 7, 11 Am. St. Rep. 225, 18 Pac. 799, 1888; State v. Caddy, 15 S. D. 169, 91 Am. St. Rep. 666, 87 N. W. 927, 1901. Compare: Fox v. State, 50 Ark. 528, 8 S. W. 836, 1888, in which it is held that where the act affects one object only, and is charged as con- stituting several offenses, each of which is a degree or an essential element. of the other, there can be but one prosecution. § 393] DEFENSES. 507 a trial for arson for burning account books, although both charges are based on the same state of facts;* acquittal on a charge of larceny is no bar to an indictment for procuring the goods by false pretense ; ® and upon a trial on the charge of being an accessory before the fact to a larceny, neither an acquittal upon an indictment for larceny, nor a conviction upon a charge of receiving stolen goods, can be pleaded as a bar;7 acquittal on a charge of murder of an unborn child by an attempt to produce a miscarriage is not a bar to a subsequent trial on a charge of an attempt to produce a miscarriage;* acquittal as principal on charge of murder is not a bar to indictment and trial as an accessory before the fact to the murder.® Part of a single crime; prosecution for, and a conviction or acquittal of, is a bar to any subsequent prosecution based upon the whole or any part of the same crime; and a conviction of a crime charged in an indictment is an acquittal of all other offenses charged in the same indictment."* And a conviction of a lesser offense bars a subsequent prosecution for a greater offense, in all those cases where the lesser offense is included in the greater offense, and vice versa.” But a former trial and 5 State v. Colgate, 31 Kan. 511, 47 Am. Rep. 507, 3 Pac. 346, 5 Am. Crim. Rep. 71, 1884. See infra, §§ 1049 et seq. 6 Dominick v. State, 40 Ala. 680, 91 Am. Dec, 496, 1867. 7 State v. Larkin, 49 N. H. 36, 6 Am. Rep. 456, 1869. 8 State v. Elder, 65 Ind. 282, 32 Am. Rep. 69, 1879. 9 State v. Buzzell, 58 N. H. 257, 42 Am. Rep. 586, 59 N. H. 65, 4 Am. Crim. Rep. 410, 1878. 10 State v. Cross, 101 N. C. 770, 9 Am. St. Rep. 53, 7 S. E. 715, 1888; State v. Emery, 68 Vt. 109, 54 Am. St. Rep. 878, 34 Atl. 432; State v. Emery, 59 Vt. 84, 7 Atl. 129, 7 Am. Crim. Rep. 202, 1895. 11[Eng.] Rex v. Heaps, 2 Salk. 598. [Ala.] Lewis v. State, 51 Ala. 1, 1874. [Cal.] People v. Gilmore, 4 Cal. 376, 60 Am. Dec. 620, 1854; People v. Backus, 5 Cal. 275, 1855; People v. Apgar, 35 Cal. 389, 1868; People v. Defoor, 100 Cal. 150, 34 Pac. 642, 1893; People v. Muhlner, 115 Cal. 308, 47 Pac. 128, 1896. [Ga.] Miller v. State, 58 Ga. 200, 1877. [Miss.] Swinney v. State, 8 Smedes & M. 576, 1847. [Mo.] State v. Bruffey, 75 Mo. 389, 1882. [Wis.] State v. Martin, 30 Wis. 216, 11 Am. Rep. 567, 1872. Whether rule binding under Cali- fornia Penal Code provisions, raised but not decided, in People v. Schmidt, 64 Cal. 260, 30 Pac. 814, 1883. See notes in 60 Am. Dec. 624, 4 Am. St. Rep. 117. 12[Ala.] Carpenter v. State, 23 Ala. 84, 1853; Lewis v. State, 51 Ala. 1, 1874; Fields v. State, 52 Ala. 348, 1875; Smith v. State, 68 Ala. 424, 1880. [Ark.] Johnson v. State, 29 Ark. 31, 21 Am. Rep. 154, 2 Am. Crim. Rep. 480, 1874. [Cal.] Peo- ple v. Bentley, 77 Cal. 7, 11 Am. St. Rep. 225, 18 Pac. 799, 1888. [Ga.] Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528, 1853; Jordan v. State, 22 Ga. 545, 1857. [Ill] Brennan v. Peo- ue 15 Ill. 511, 1854; Barnett vy. eople, 54 Ill. 325, 1870. [Ind.] Hickey v. State, 23 Ind. 21, 1864; Jones v. State, 118 Ind. 39, 20 N. 503 CRIMINAL LAW. [§ 393 acquittal or conviction will not be a bar to a subsequent prose- cution, unless the defendant could have. been convicted on the same evidence in the former trial, of the offense charged in the subsequent trial.” On plea of former acquittal or conviction, the accused must show that he was acquitted or convicted of the same accusation ‘against him in a former trial; not of an entirely different of- fense growing out of the same state of facts or transaction.“ The proper test is: Was the matter set out in a second indict- ment admissible as evidence under the first indictment, and could a conviction have been properly maintained upon such evidence? If the answer is yes, then the plea is sufficient; oth- erwise, it is not.’® Acquittal on a charge of crime is a bar to subsequent prosecution for the same offense under a different name, in all those cases where the accused might have been E. 634, 1888. [La.] State v. Horns- by, 8 Rob. (La.) 583, 41 Am. Dec. 314, 1845. [Me.] State v. Littlefield, 70 Me. 452, 35 Am. Rep. 335, 1880. [Mich.] People v. Knapp, 26 Mich. 112, 1872; People v. Pearl, 76 Mich. 207, 4 L.R.A. 709, 15 Am. St. Rep. 304, 42 N. W. 1109, 1889. [Minn.] State v. Lessing, 16 Minn. 75, Gil. 64, 1870; State v. West, 39 Minn. 321, 40 N. W. 429, 8 Am. Crim. Rep. 381, 1888. [Miss.] Hurt v. State, 25 Miss. 378, 59 Am. Dec. 225, 1853. [Mo.] State vy. Ross, 29 Mo, 32, 1859; State v. Smith, 53 Mo. 267, 1873; State v. Pitts, 57 Mo. 85, 1874. [Tenn.] State v. Norvell, 2 Yerg. 24, 24 Am. Dec. 458, 1820; Slaughter v. State, 6 Humph. 410, 1846. [Va.] Canada v. Com. 22 Gratt. 899, 1872. [Wis.] State v. Yanta, 71 Wis. 669, 38 N. W. 338, 1888. Conviction of assault and battery is a bar to a subsequent prosecution on charge of assault to do great bod- ily harm. People v. Pearl, 76 Mich. 207, 4 L.R.A. 709, 15 Am. St. Rep. 304, 42 N. W. 1109, 1889. 13 Dominick v. State, 40 Ala. 680, 91 Am. Dec. 496, 1867; Simeo v. State, 9 Tex. App. 338, 1880. 14 Kain v. State, 16 Tex. App. 282, 1884; Hooper v. State, 30 Tex. App. 412, 28 Am. St. Rep. 926, 17 8. W. 1066, 1891. 15 [Fed.] United States v. McNeal, 1 Gall. 387, Fed. Cas. No. 15,700, 1813; United States v. Bowman, 2 Wash. C. C. 328, Fed. Cas. No. 14,631, 1808; United States v. Denicke, 35 Fed. 407, 1888. [Ala.] Dominick v. State, 40 Ala. 680, 91 Am. Dec. 496, 1867. [Cal.] People v. Hughes, 41 Cal. 234, 1871. [Colo.] Dill v. Peo- ple, 19 Colo. 469, 41 Am. St. Rep. 254, 36 Pac. 229, 1894. [Mich.] Kea- tor v. People, 32 Mich. 487, 1875. [Tex.] Simco v. State, 9 Tex. App. 338, 1880; Kain v. State, 16 Tex. App. 282, 1884; Hooper v. State, 30 Tex. App. 412, 28 Am. St. Rep. 926, 17 S. W. 1066, 1891. [Vt.] State v. Clark, 2 Tyler (Vt.) 282, 1808. Autrefois acquit, on plea of, ac- cused must show legal acquittal by judgment upon trial, by verdict of a petit jury. State v. Hornsby, 8 Rob. (La.) 583, 41 Am. Dec. 314, 1845. —Court sitting without a jury, an acquittal of a criminal charge is not available under the plea of autrefois acquit, upon a second trial for the same offense, when the state, in the first trial, insisted upon trial by jury. State v. Mead, 4 Blackf. 309, 30 Am. Dec. 661, 1837. The reason for this rule is the fact that the defendant, in such a case, was not legitimo modo acquietus. State v. Mead, 4 Blackf. 309, 30 Am. Dec. 661, 1837. See Rex v. Praed, 4 Burr. 2257; Vaux’s Case, 4 Coke, 44. § 393] DEFENSES. 509 found guilty and sentenced on the offense charged in the later indictment under the former prosecution. Conviction or ac- quittal in one offense is a bar to a prosecution in another, in all those cases where the later offense charged is a necessary ele- ment in, and constitutes an essential part of, the former.” Thus, a plea of former conviction of burglary is sufficient in an indictment for robbery based on the same offense, when the rec- ord shows that, in order to prove the felonious intent in the former prosecution, the circumstances of the stealing were proved, and thus the same transaction, the robbery, was in- volved in both cases." Same act may constitute two or more offenses which are dis- tinct from each other. In such cases the accused may be sep- arately prosecuted and punished for each, and a conviction or acquittal in a prosecution for the one will not constitute a bar to a trial for the other."* Thus, where two or more are assault- 16Dinky v. Com. 17 Pa. 126, 55 Am. Dec. 542, 1851. 17 State v. Cooper, 13 N. J. L. 361, 25 Am. Dec. 490, 1833; State v. Cross, 101 N. C. 770, 9 Am. St. Rep. 53, 7 S. E. 715, 1888. See note in 9 Am. St. Rep. 69. 18 [Ga.] Roberts v. State, 14 Ga. 8, 58 Am. Dec. 525, 1833. [Ill] Dur- ham v. People, 5 Ill. 172, 39 Am. Dee. 407, 1843. [Mass.] Com. v. Cunning- ham, 13 Mass. 245, 1816; Com. v. Wade, 17 Pick. 400, 1835. [N. Y.] People v. Barrett, 1 Johns. 66, 1806; People v. McGowan, 17 Wend. 386, 1837. [N. C.] State v. Lewis, 9 N. C. (2 Hawks) 98, 11 Am. Dec. 741, 1822. [S. C.] State v. Risher, 1 Rich. L, 222, 1845. [Eng.] See Rex v. Clark, 1 Brod. & B. 473. Conviction of battery held to be a bar to a charge of assault with in- tent to murder, predicated on the same act or state of facts. People v. McDaniels, 1387 Cal. 192, 59 LRA. 578, 92 Am. St. Rep. 81, 69 Pac. 1006, 1902. Conviction of robbery is a bar to a subsequent trial on a charge of as- sault with intent to murder, founded upon the same transaction. Wilcox v. State, 6 Lea, 571, 40 Am. Rep. 53, 1880. Burglary and larceny, conviction on charge of, is a bar to a subse- quent trial on an indictment char- ging robbery, based on the same state of facts. State v. Lewis, 9 N. C. (2 Hawks) 98, 11 Am. Dec. 741, 1822, approved and followed in Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528; and People v. Smith, 57 Barb. 46, 1870. Simple assault or assault to maim, conviction of, on information char- ging mayhem, is a bar to subsequent trial on an indictment for assault to murder, based on the same facts. People v. Defoor, 100 Cal. 150, 34 Pac. 642, 1893. As to what facts will sustain a plea of former acquittal or convic- tion, see monographical note 58 Am. Dec. 536-549. 19 [Eng.] Wemyss v. Hopkins, L. R. 10 Q. B. 378, 44 L. J. Mag. Cas. N. S. 101, 33 L. T. N. 8. 9, 23 Week. Rep. 691. [Ala] Hawkins v. State, 1 Port. (Ala.) 475, 27 Am. Dec. 641, 1835; State v. Standifer, 5 Port. (Ala.) 528, 1837. [Cal.] People v. Alibez, 49 Cal. 452, 1875; People v. Majors, 65 Cal. 138, 52 Am. Rep. 295, 3 Pac. 597, 5 Am. Crim. Rep. 486, 1884; People v. Bentley, 77 Cal. 7,11 Am. St. Rep. 225, 18 Pac. 799, 1888. [Colo.] Re Allison, 13 Colo. 525, 10 L.R.A. 790, 16 Am. St. Rep. 510 CRIMINAL LAW. [g 393 ed,” robbed," or their goods stolen,” or are shot? or mur- dered ** by one and the same act and at the same time, convic- tion or acquittal on an indictment for offense against the one will be no bar to a trial on an indictment charging the offense against the other.” § 394. Former jeopardy. It is a well-established and an- cient principle of law, guaranteed by constitutional provisions, that a man may not be twice put in jeopardy for the same of- fense.? 224, 23 Pac. 820, 1889. [Ga.] Crocker v. State, 47 Ga. 568, 1873. [Ind.] Clem v. State, 42 Ind. 420, 138 Am. Rep. 369, 1873; Greenwood v. State, 64 Ind. 250, 3 Am. Crim. Rep. 154, 1878; Joslyn v. State, 128 Ind. 160,. 25 Am. St. Rep. 425, 427, 27 N. E. 492, 1891. [Kan.] Olathe v. Thomas, 26 Kan. 233, 1881. [Mass.] Com. v. Tenney, 97 Mass. 50, 1867. [Miss.] Teat v. State, 53 Miss. 439, 24 Am. Rep. 708, 1876; Jones v. State, 66 Miss. 380, 14 Am. St. Rep. 570, 6 So. 23, 1889. [N. Y.] People v. Warren, 1 Park. Crim. Rep. 338, 1852. [N. C.] State v. Nash, 86 N. C. 650, 41 Am. Rep. 472, 1882. [S. C.] State v. Taylor, 2 Bail. L. 49, 1830; State v. Glasgow, Dud. L. 40, 1836; State v. Parish, 8 Rich. L. 322, 1855. [Tenn.] State v. Rankin, 4 Coldw. 145, 1867. [Tex.] Alexander v. State, 21 Tex. App. 406, 57 Am. Rep. 617,17 S. W. 139, 1886. [Vt.] State v. Da- mon, 2 Tyler (Vt.) 387, 1803. [Va.] Vaughan v. Com. 2 Va. Cas. 273. See notes in 50 Am. Dec. 242, 58 Am. Dec. 540. 20 [Ala.] State v. Standifer, 5 Port. (Ala.) 523. [Ga.] Crocker v. State, 47 Ga. 568, 1873. [Ind.] Greenwood v. State, 64 Ind. 250, 3 Am. Crim. Rep. 154, 1878. [Miss.] Jones v. State, 66 Miss. 380, 14 Am. St. Rep. 570, 6 So. 23, 1889. [N. C.] State v. Nash, 86 N. C. 650, 41 Am. Rep. 472, 1882. [S. C.] State v. Parish, 8 Rich. L. 322, 1855. [Vt.] State v. Damon, 2 Tyler (Vt.) 387, 1803. 21Under charge of robbing A, B, and C upon the same stagecoach, a conviction or acquittal of having robbed either will not be a bar to a trial on an indictment charging the Certain matters relating to and constituting former robbery of either of the others. Re Allison, 13 Colo. 525, 10 L.R.A. 790, 16 Am. St. Rep. 224, 23 Pac. 820, 1889. See People v. Bentley, 77 Cal. 7,11 Am, St. Rep. 225, 18 Pac. 799, 1888, 22 Goods of A and B being stolen at the same time and as a part of the same act, conviction or acquittal on an indictment charging larceny of the property of A will not be a bar to a subsequent trial on an indict- ment charging larceny of the prop- erty of B. Alexander v. State, 21 Tex. App. 406, 57 Am. Rep. 617, 17 S. W. 139, 1886. 23 Vaughan v. Com. 2 Va. Cas. 273. 24 People v. Alibez, 49 Cal. 452, 1 Am. Crim. Rep. 345, 1875; People v. Majors, 65 Cal. 138, 52 Am. Rep. 295, 3 Pac. 597, 5 Am. Crim. Rep. 486, 1884; Clem v. State, 42 Ind. 420, 13 Am. Rep. 369, 1873. Intent to kill two persons at the same time constitutes two distinct offenses. People v. Warren, 1 Park. Crim. Rep. 338, 1884. Where, by common design, A and B fire two simultaneous shots, killing C and D, the killing of each is a distinct crime, and the acquittal of A or B for the murder of C will not be a bar to a subsequent trial on an’ indictment for killing D, although the evidence in each case is the same. Teat v. State, 53 Miss, 439, 24 Am. Rep. 708, 1876. 25 People v. Majors, 65 Cal. 138, 3 Pac. 597, 52 Am. Rep. 295, 5 Am. Crim. Rep. 486, 1884. 1[Fed.] Ex parte Ulrich, 42 Fed. 587, 1890. [Ala.] Pierson v. State, 159 Ala. 6, 48 So. 818, 1909. [Ky.] Ehrlich v. Com. 131 Ky. 680, 115 § 394] DEFENSES, 511 jeopardy in a former trial, and acquittal or conviction, and making the plea of former jeopardy available as a defense to a S. W. 797, 1909. [Miss.] Coleman v. State, 83 Miss. 290, 64 L.R.A. 807, 35 So. 937, 1 A. & E. Ann. Cas. 406, 1904. [N. J.] State v. Cooper, 13 N. J. L. 361, 25 Am. Dec. 490, 1833. [Ohio] Mount v. State, 14 Ohio 295, 45 Am. Dec. 542, 1846. [Pa.] Dinkey v. Com. 17 Pa. 126, 55 Am. Dec. 542, 1851; Altenburg v. Com. 126 Pa. 602, 4 L.R.A. 543, 17 Atl. 799, 1889. [S. C.] State v. M’Kee, 1 Bail. L. 651, 21 Am. Dec. 499, 1830. [Tenn.] Campbell v. State, 9 Yerg. 333, 30 Am. Dec. 417, 1836. [Tex.] Muckenfuss v. State, 55 Tex. Crim. Rep. 229, 20 L.R.A. (N.S.) 783, 131 Am. St. Rep. 813, 116 S. W. 51, 16 A. & E. Ann. Cas. 768, 1909. As to former jeopardy, see notes in 25 Am. Dec. 497; 33 Am. Dec. 96; and 58 Am. Dec. 471. “A right not to be put in jeopardy a second time for the same cause is as sacred as the right of trial by jury, and is guarded with as much care by the common law and the Constitution.” Black, Ch. J., in Din- key v. Com. 17 Pa. 126, 55 Am. Dec. 542, 1851. “No man who has been guilty of an offense against society should be suffered to escape on a mere tech- nical defense not founded in any principle of natural justice or rule of public policy.” Ibid. An interesting discussion of an- cient plea of former jeopardy in its operation in early practice in Eng- land, and the mockery of trials after delivery to the ordinary,—introduced to support the ascendency of the Church over the State,—is found in Crenshaw v. State, Mart. & Y. 122, 17 Am. Dec. 788, 1827. See also note in 17 Am. Dec. 791, 795. Conviction of lesser offense as bar to prosecution for greater, on plea of former jeopardy. See [U. S.] Re Nielsen, 181 U. 8. 176, 33 L. ed. 118, 9 Sup. Ct. Rep. 672, 1888. [Ala.] Moore v. State, 71 Ala. 307, 1882; Hurst v. State, 86 Ala. 604, 11 Am. St. Rep. 79, 6 So. 120, 1888. [Cal.] People v. Deioor, 100 Cal. 150, 34 Pac. 642, 1893; People v. McDaniels, 137 Cal. 192, 59 L.R.A. 578, 92 Am. St. Rep. 81, 69 Pac. 1006, 1902. [Conn.] Wilson v. State, 24 Conn. 57, 1855. [N. J.] State v. Cooper, 13 N. J. L. 361, 25 Am. Dec. 490, 1833. [W. Va.] Moundsville v. Fountain, 27 W. Va. 182, 1885. Conviction or acquittal of higher crime includes one of lesser degree. See State v. Webster, 39 N. H. 96, 1859; State v. Cooper, 138 N. J. L. 861, 25 Am. Dec. 490, 1833; State v. Wyckoff, 31 N. J. L. 65, 1864. Crime committed partially in two or more counties or jurisdictions, each having jurisdiction to try the offense; as to when former jeopardy arises, see 64 L.R.A. 807. A crime committed partially in each of two counties, each county having jurisdiction; the state cannot begin prosecution in one of the counties, then dismiss proceedings and commence in the other county, and thus harass the defendant by proceedings commenced in both of the counties in which jurisdiction is obtained. Coleman v. State, 83 Miss. 290, 64 L.R.A. 807, 35 So. 937, 1 A. & E. Ann. Cas. 406, 1904. Direction of verdict for defendant, whether correctly or erroneously made by the court, is former jeopar- dy. See People v. Webb, 38 Cal. 467, 1869; People v. Terrill, 132 Cal. 497, 64 Pac. 894, 1901. Exemplary damages, recovery of, no bar to criminal prosecution. See [Eng.] Jacks v. Bell, 3 Car. & P. 316, 1828. [Iowa] Hendrickson v. Kings- bury, 21 Iowa, 379, 1866. [Kan.] Jockers v. Borgman, 29 Kan. 109, 44 Am. Rep. 625, 1883. [Minn.] Boet- cher v. Staples, 27 Minn. 308, 38 Am. Rep. 295, 7 N. W. 263, 1880. [Vt.] Hoadley v. Watson, 45 Vt. 289, 12 Am, Rep. 197, 1873. [Va.] Borland v. Barrett, 76 Va. 128, 44 Am. Rep. 152, 1882. [Wis.] Brown v. Swine- ford, 44 Wis. 282, 28 Am. Rep. 582, 1878. Jeopardy protects as to such char- ges only as defendant might have $12 CRIMINAL LAW. [§ 394 subsequent trial for the same offense, or offenses growing out been convicted of on former trial. Hilands v. Com, 114 Pa. 372, 6 Atl. 267, 1886. Offense in exercising ordinary call- ing; ¢. g., a8 one conducting a thea- ter, in giving more than one exhi- bition on the same Sunday; and a butcher or an ice dealer, in making several deliveries to different per- sons on a single Sunday,—commits but one offense, and a conviction of ene will bar a prosecution for any other similar offense committed on the same day, on plea of former jeop- ardy. [Mich.] People v. Cox, 70 Mich. 247, 38 N. W. 235, 1888. [Pa.] Altenburg v. Com. 126 Pa. 602, 4 L.R.A, 543, 17 Atl. 79, 1889. [Tex.] Muckenfuss v. State, 55 Tex. Crim. Rep. 229, 20 L.R.A.(N.S.) 783, 131 Am. St. Rep. 813, 116 S. W. 51, 16 A. & E. Ann, Cas. 768, 1909. See also notes in 131 Am. St. Rep. 815-817 and 20 L.R.A.(N.S.) 783. Plea of former jeopardy denied; Supreme Court or United States has jurisdiction to review the decision. See Bohanan v. Nebraska, 118 U. 8S. 231, 30 L. ed. 71, 6 Sup. Ct. Rep. 1049, 1886. But the question must be raised in the trial court. Chapin v. Fye, 179 U.S. 127, 45 L. ed. 119, 21 Sup. ‘Ct. Rep. 71, 1900. —Construction of verdict by state ‘court is conclusive as to whether ef- fect of verdict on one count in an indictment acquits defendant on an- other count in the same indictment; it involves no Federal question giv- ing the Supreme Court of the Unit- ed States jurisdiction to review the decision. State v. Fry, 98 Tenn. 323, 39 S. W. 231, 1897. Prohibition as to second jeopardy is not violated by imposing heavier penalties upon persons previously convicted, because such increase in severity of penalty is not a punish- ment for the same offense a second time. See [U. S.] Moore v. Missouri, 159 U. 8. 673, 40 L. ed. 301, 16 Sup. ‘Ct. Rep. 179, 1895, affirming State v. Moore, 121 Mo. 514, 42 Am. St. Rep. 542, 26 S. W. 345, 1894. [Cal.] People v. Stanley, 47 Cal. 113, 17 Am, Rep. 401, 1873; People v. Boyle, 64 Cal. 153, 28 Pac. 232, 1883; ‘Peo- ple v. Lewis, 64 Cal. 401, 1 Pac. 490, 1883. [Il.] Kelly v. People, 115 Ill. 583, 56 Am. Rep. 184, 4 N. E. 644, 6 Am. Crim. Rep, 135, 1886. [Ky.] Taylor v. Com. 3 Ky. L. Rep. 783, 1882; Boggs v. Com. 9 Ky. L. Rep. 342, 5 S. W. 307, 1887; Chenowith v. Com. 11 Ky. L. Rep. 561, 12 S. W. 585, 1889. [Md.] Maguire v. State, 47 Md. 485, 1877. [Mass.] Ross’s Case, 2 Pick. 165, 1824; Ex parte White, 14 Pick. 90, 1833. [Mo.] State v. Moore, 121 Mo. 514, 42 Am. St. Rep. 542, 26 S. W. 345, 1894, affirmed in Moore v. Missouri, 159 U. S. 673, 40 L. ed. 301, 16 Cup. Ct. Rep. 179, 1895. [N. Y.] People v. McCarthy, 45 How. Pr. 97, 1873. [Ohio] Blackburn v. State, 50 Ohio St. 428, 36 N. E. 18, 1893. [Va.] Rand v. Com. 9 Gratt. 738, 1852. [Wis.] Ingalls v. State, 48 Wis. 647, 4 N. W. 785, 1880. See note in 34 L.R.A. 400. —Increased punishment for hahit- ual criminals is not invalid as vio- lating prohibition as to jeopardy. State v. Le Pitre, 54 Wash. 166, 103 Pac. 27, 18 A. & E. Ann. Cas. 922, 1909. —Punishment by imprisonment for term equal to term he is serving, of a convict escaping, does not violate guaranty as to jeopardy. Re Mallon, 16 Idaho, 737, 22 L.R.A.(N.S.) 1123, 102 Pac. 374, 1909. Punitive damages five times the fees charged, in case of extortion by an officer, do not violate the pro- hibition as to jeopardy. State ex rel. Scobey v. Stevens, 103 Ind. 55, 53 Am. Rep. 482, 2 N. E. 214, 1885. Punitive damages awarded to a private individual for damage suf- fered for a tort that has been pun- ished as a crime do not violate the prohibition against a person being twice put in jeopardy for the same offense, for the reason that the act constituting that tort is of a dual character, that is, a wrong against the public and a wrong against the individual injured, and the trial of the offense against the public has no § 394] DEFENSES. 513 of the same act or transaction, have been sufficiently treated in a former section.” Definition of “jeopardy.” Jeopardy is the peril and danger? to life or liberty in which a person is put when he has been regularly and sufficiently * charged with the commission of a connection with the trial for the damage against the individual; one proceeding is criminal and the other civil, and neither has the effect to bar the other. See supra this note. Award of punitive damages for a tort which has been punished as a crime is not double jeopardy of pun- ishment. Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582, 1878. Trial and acquittal under indict- ment charging furnishing of intoxi- cating liquors on Sunday; the ac- cused cannot, on a subsequent in- dictment for furnishing .liquors to prohibited classes, be required to de- fend as to dates included in first in- dictment. Altenburg v. Com. 126 Pa, 602, 4 L.R.A, 548, 17 Atl. 799, 1889. Verdict on one count, acquittal on others, of an indictment containing more than one count. [Ala.] Bell v. State, 48 Ala. 684, 17 Am. Rep. 40, 1874. [Ill] Logg v. People, 8 Iil. App. 99, 1880. [Neb.] George v. State, 59 Neb. 163, 80 N. W. 486, 1899. [Tenn,.] Campbell v. State, 9 Yerg. 333, 30 Am. Dec. 417, 1836. See also note in 12 Am. Rep, 475. Verdict of manslaughter in first degree, which court refuses to re- ceive because there is no such degree, is not a bar to the jury retiring and bringing in a verdict of murder in the first degree. Grant v. State, 88 Fla. 291, 23 L.R.A. 723, 14 So. 157, 9 Am. Crim. Rep. 746, 1894. 2See supra, § 393. 3[U. S.] United States v. Wilson, Baldw. 78, Fed. Cas. No. 16,730, 1830; United States v. Reeves, 38 Fed. 401, 1889. [Idaho] United States v. Mays, 1 Idaho, 763, 1880. {N. C.] State v. Ellsworth, 131 N. C. 773, 92 Am, St. Rep. 790, 42 S. E. €99, 1902. [Pa.] Com. v. Fitzpat- rick, 121 Pa. 109, 1 L.R.A. 451, 6 Am. St. Rep. 757, 15 Atl. 466, 7 Am. Crim. Rep. 199, 1888. [R. I] Gor- Crim. L. Vol. I.—33. man v. Banigan, 22 R. I. 22, 46 Atl. 38, 1900. [Tenn.] State v. Connor, 5 Coldw. 311, 1868, At common law jeopardy means simply that when there has been a final verdict on the trial of a crimin- al accusation, whether of acquittal or conviction, the accused cannot be a second time tried for the same of- fense. State v. Connor, 5 Coldw. 311, 1868. In constitutional prohibition, “for- mer jeopardy” means more than at common law, and a simple putting on trial is putting in jeopardy. Ibid. Peril must be real and continuous throughout every stage of the prose- cution. State v. Ellsworth, 131 N. C. 773, 92 Am. St. Rep. 790, 42 8. E. 699, 1902. 4[Fed.] Ex parte Glenn, 111 Fed. 257, 1901. [Ala.] White v. State, 49 Ala. 344, 1873; Mixon v. State, 55 Ala, 129, 28 Am. Rep. 695, 1876. [Ark.] State v. Gill, 33 Ark. 129, 1878; Whitmore v. State, 43 Ark. 271, 1884. [Cal.] Peop'e v. McNealy, 17 Cal. 332, 1861; People v. Webb, 88 Cal. 467, 1869; People v. Cage, 48 Cal. 323, 17 Am. Rep. 436, 1874; People v. Higgins, 59 Cal. 357, 1881; People v. Travers, 77 Cal. 176, 19 Pac. 268, 1888; People v. Terrill, 132 Cal. 497, 64 Pac. 894. 1901. [Fla.] Lovett v. State, 33 Fla. 389, 14 So. 837, 1894. [Ind.] Rowland v. State, 126 Ind. 517, 26 N. E. 485, 1890; Dye v. State, 130 Ind. 87, 29 N. E. 771, 1891; Klein v. State, 157 Ind. 146, 60 N. E. 1036, 1901. [Kan.] Re Clyne, 52 Kan. 441, 35 Pac. 23, 1893. [Ky.] O’Brian v. Com. 9 Bush, 333, 15 Am. Rep. 715, 1 Am. Crim. Rep. 520, 1873; Williams v. Com. 78 Ky. 93, 1879. [Md.] Kearney v. State, 48 Md. 16, 1877. [Mass.] Com. v. Farrell, 105 Mass. 189, 1870. [Minn.] State v. Sommers, 60 Minn. 90, 61 N. W. 907, 1895. [Mo.] State vy. Keating, 223 Mo. 86, 122 S. W. 514 CRIMINAL LAW. [§ 394 crime; has been arraigned, and pleaded to such charge; * has been put upon his trial before a tribunal properly organized and competent to try him for the offense charged; ° and a jury 699, 1909. [Nev.] Ex parte Maxwell, 11 Nev. 428, 1876. [N. C.] Re Spier, 12 N. C. (I Dev. L.) 491, 1827. [Tex.] Pizano v. State, 20 Tex. App. 139, 54 Am. Rep. 511, 1886; Yerger v. State, — Tex. Crim. Rep. —, 41 S. W. 621, 1897; Shoemaker v. State, 58 Tex. Crim. Rep. 518, 126 8. W. 887, 1910. [Wash.] State v. Burns, 54 Wash. 113, 102 Pac. 886, 1909. Acquittal on invalid or insufficient indictment is not a bar to a second indictment and trial for same of- fense. State v. Ray, Rice, L. 1, 33 Am. Dec. 90, 1838. Accused must be charged and put upon his trial on a sufficient and valid indictment, before an acquittal or conviction can constitute former jeopardy. State v. Ray, Rice, L. 1, 33 Am. Dec. 90, 1838. See State v. Hornsby, 8 Robt. (La.) 583, 41 Am. Dec. 314, 1845. But a conviction before a justice of the peace, and performance of sen- tence imposed, will constitute a bar to a subsequent indictment and trial for the same offense, although the judgment of the justice upon which the sentence was rendered was 80 defective that it would have been reversed on error. Com. v. Loud, 3 Met. 328, 37 Am. Dec. 139, 1841. Discharge of jury impaneled to try an accused upon a void indictment will not entitle defendant to his re- lease. State v. Ray, Rice L. 1, 33 Am. Dec. 90, 1838. Indictment so defective that judg- ment would not have been good; there is no jeopardy, and dismissal of prosecution cannot be set up as a bar to a subsequent prosecution on the same charge under a new in- dictment. White v. State, 49 Ala. 344, 1873. “Jeopardy of life is when one is put upon his trial upon a valid in- dictment for a capital offense; it may result in his conviction, hence he is in jeopardy.” State v. M’Kee, 1 Bail L. 651, 21 Am. Dee. 499, 1830. Jeopardy not exhausted by indict- ment followed by nolle prosequi where accused does not claim a ver- dict. State v. Ellsworth, 131 N. C. 773, 92 Am. St. Rep. 790, 42 S. E. 699, 1902. 5 [Fed.] United States v. Riley, 5 Blatchf. 204, Fed. Cas. No. 16,164, 1864. [Ind.] Weaver v. State, 83 Ind. 289, 1882. [Kan.] State v. Rook, 61 Kan. 382, 49 L.R.A. 186, 59 Pac. 653, 1900. [Wis.] Douglass v. State, 3 Wis. 820, 1854; Davis v. State, 38 Wis. 487, 1 Am. Crim. Rep. 606, 1875. Arraignment and plea essential, unless waived by the defendant, in a charge of felony, to render plea of former jeopardy available. [Fed.] United States v. Riley, 5 Blatchf. 204, Fed. Cas. No. 16,164, 1864. [Kan.] State v. Rook, 61 Kan. 382, 49 L.R.A. 186, 59 Pac. 653, 1900. [Wis.] Douglass v. State, 3 Wis. 820, 1854. —On charge of misdemeanor trials upon agreed statement of facts have been held. Olathe v. Adams, 15 Kan. 391, 1875; Oswego v. Belt, 16 Kan. 480, 1876; State v. Lee, 49 Kan. 570, 31 Pac. 147, 1892. ; 6 [Fed.] Ex parte Glenn, 111 Fed. 257, 1901. [Ala.] Mixon v. State, 55 55 Ala. 129, 28 Am. Rep. 695, 1876. [Ark.] Whitmore v. State, 43 Ark. 271, 1884. [Cal.] People v. Webb, 38 Cal. 467, 1869; People v. Cage, 48 Cal. 328, 17 Am. Rep. 436, 1874; People v. Higgins, 59 Cal. 357, 1881; People v. Travers, 77 Cal. 176, 19 Pac. 268, 1888; People v. Terrill, 132 Cal. 497, 64 Pac. 894, 1901. [Conn.] State v. Fox, 83 Conn. 286, 76 Atl. 302, 19 A. & E. Ann. Cas, 682, 1910. [Fla.] Lovett v. State, 33 Fla. 389, 14 So. 837, 1894. [Ind.] Rowland v. State, 126 Ind. 517, 26 N. E. 485, 1890; Dye v. State, 130 Ind. 87, 29 N, E. 771, 1891; Klein v. State, 157 Ind. 146, 60 N. E. 1036, 1901. [Ky.] Williams v. Com. 78 Ky. 98, 1879. [Minn.] State v. Sommers, 60 Minn. 90, 61 N. W. 907, 1895. [Mo.] State v. Keating, 223 Mo. 86, 122 8. W. § 394] DEFENSES. 515 has been duly impaneled from persons competent to sit” on the trial, and duly sworn to try the cause, and charged with due deliverance.’ Jeopardy, in its strict common-law and constitu- 699, 1909. [N. Y.] People v. Con- nor, 142 N. Y. 130, 36 N. E. 807, 1894, [Okla.] Re McClaskey, 2 Okla. 568, 37 Pac. 854, 1894. [Pa.] Com. v, Fitzpatrick, 121 Pa. 109, 1 L.R.A. 451, 6 Am. St. Rep. 757, 15 Atl. 466, 7 Am. Crim. Rep. 199, 1888. [Tex.] Pizano v. State, 20 Tex. App. 139, 54 Am. Rep. 511, 188€: Shoemaker v. State, 58 Tex. Crim. Rep. 518, 126 S. W. 887, 1910. Acquittal is not wronght by re- fusal of court to proceed to trial on an appeal from a conviction. Grand Rapids v. Braudy, 105 Mich. 670, 32 L.R.A. 116, 55 Am. St. Rep. 472, 64 N. W. 29, 1895. Judge changed during trial, and judgment set aside for that reason; jeopardy does not attach. State v. Abram, 4 Ala. 272, 1842. 7 [Fed.] Ex parte Glenn, 111 Fed. 257, 1901. [Ala.] Mixon v. State, 55 Ala. 129, 28 Am. Rep. 695, 1876. [Ark.] Whitmore v. State, 43 Ark. 271, 1884. [Cal.] People v. Webb, 38 Cal. 467, 1869; People v. Cage, 48 Cal. 323, 17 Am. Rep. 436, 1874; Peo- ple v. Higgins, 59 Cal. 357, 1881; People v. Travers, 77 Cal. 176, 19 Pac. 268, 1888; People v. Terrill, 132 Cal. 497, 64 Pac. 894, 1901. [Fla.] Lovett v. State, 33 Fla. 389, 14 So. 837, 1894. [Ky.] Williams v. Com. 78 Ky. 93, 1879. [Minn.] State v. Sommers, 60 Minn. 90, 61 N. W. 907, 1895. [Tex.] Pizano v. State, 20 Tex. App. 139, 54 Am. Rep. 511, 1886. Full jury impaneled and sworn to try the cause, necessary to consti- tute jeopardy. Scott v. State, 110 Ala. 48, 20 So. 468, 1895; State v. Robinson, 46 La. Ann. 769, 15 So. 146, 1894. See [Ala.] Mixon v. State, 55 Ala. 129, 28 Am. Rep. 695, 1876. [Ark.] McKenzie v. State, 26 Ark. 334, 1870. [Ind.] Wright v. State, 7 Ind. 324, 1855; Morgan v. State, 13 Ind. 215, 1859. [Ohio] Hines v. State, 24 Ohio St. 134, 1873. Names of jurors surreptitiously withdrawn from jury box; order of court, on discovery of fact, to restore a like number of names of persons competent to serve as jurors, and directing the drawing of the jury to commence de novo, does not con- stitute jeopardy. Alexander v. Com. 105 Pa. 1, 1884. Panel exhausted without obtain- ing a single juror, and adjournment to the next week, do not constitute jeopardy. State v. Briggs, 27 S. C. 80, 2S. E. 854, 1887. Trial by court without the inter- vention of a jury does not raise jeop- ardy. Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54, 1840; State v. Mead, 4 Blackf. 309, 30 Am. Dec. 661, 1837. 8 [Fed.] Ex parte Glenn, 111 Fed. 257, 1901. [Ala.] Mixon v. State, 55 Ala. 129, 28 Am. Rep. 695, 1876; Scott v. State, 110 Ala. 48, 20 So. 468, 1895. [Ark.] McKenzie v. State, 26 Ark. 334, 1870; Whitmore v. State, 43 Ark. 271, 1884. [Cal.] People v. Webb, 38 Cal. 467, 1869; People v. Cage, 48 Cal. 323, 17 Am. Rep. 436, 1874; People v. Hunckeler, 48 Cal. 331, 1 Am. Crim. Rep. 507, 1874; People v. Higgins, 59 Cal. 357, 1881; People v. Travers, 77 Ual. 176, 19 Pac. 268, 1888; People v. Ny Sam Chung, 94 Cal. 304, 28 Am. St. Rep. 129, 29 Pac. 642, 1892; People v. Terrill, 132 Cal. 497, 64 Pac. 894, 1901. [Fla.] Lovett v. State, 33 Fla. 389, 14 So. 837, 1894. [Ind.] Wein- zorpflin v. State, 7 Blackf. 186, 1844; Wright v. State, 7 Ind. 324, 1855; Morgan v. State, 13 Ind. 215, 1859. [Ky.] O’Brian v. Com. 9 Bush, 333, 15 Am. Rep. 715, 1 Am. Crim. Rep. 520, 1873; Williams v. Com. 78 Ky. 93, 1879; Robinson v. Com. 88 Ky. 386, 11 S. W. 210, 1889. [La.] State v. Robinson, 46 La. Ann. 769, 15 So. 146, 1894. [Minn.] State v. Som- mers, 60 Minn. 90, 61 N. W. 907, 1895. [Miss.] Whitten v. State, 61 Miss. 717, 1884. [Mo.] State v. Keating, 223 Mo. 86, 122 S. W. 699, 1909. [Nev.] Ex parte Maxwell, 11 Nev. 428, 1876. [N. M.] United States v. Aurandt, 15 N. M. 292, 27 516 L.R.A.(N.S.) 1181, 107 Pac. 1064, 1910. [N. C.] Re Spier, 12 N. C. (1 Dev. L.) 491, 1827. [Ohio] Hines v. State, 24 Ohio St. 134, 1873. [Okla.] Caples v. State, 3 Okla. Crim. Rep. 72, 26 L.R.A.(N.S.) 1033, 104 Pac. 493, 1909. [Pa] Com. v. Fitz- patrick, 121 Pa, 109, 1 L.R.A. 451, 6 Am. St. Rep. 757, 15 Atl. 466, 7 Am. Crim. Rep. 199, 1888; Com. v. Clue, 3 Rawle, 498, 1831. [S. C.] State v. M’Kee, 1 Bail. L. 651, 21 Am, Dec. 499, 1830. [Tenn.] State v. Connor, 5 Coldw. 311, 1868; Moore v. State, 3 Heisk, 493, 1872. [Tex.] Pizano v. State, 20 Tex. App. 139, 54 Am. Rep. 511, 1886; Yerger v. State, — Tex. Crim. Rep. —, 41 S. W. 621, 1897. [Vt.] State v. Emery, 59 Vt. 84, 7 Atl 129, 7 Am. Crim. Rep. 202, 1886. As to meaning of “former jeopar- dy,” see note in 30 Am. Dec. 420. “A case is submitted when the prisoner has been arraigned, plea of not guilty filed, and the jury im- paneled and sworn.” Newsom v. State, 2 Ga. 60, 1847. Defendant, called upon to plead after completing jury, moved to quash, whereupon jury was dis- charged and indictment amended. It was held that jeopardy had not at- tached. Yerger v. State, — Tox. Crim. Rep. —, 41 S. W. 621, 1897. Discharge without prisoner’s con- sent has effect to acquit accused. Stewart v. State, 15 Ohio St. 155, 1864, Jury impaneled and sworn found to contain two jurors who were members of the grand jury return- ing the indictment; defendant’s agreement to strike jury from quali- fied panel constitutes a waiver of right to set up jeopardy because of discharge of first jury. Thomas v. State, 7 Ga. App. 637, 67 8. E. 894, 1810. Where a juror fraudulently pro- cures himself to be put upon the jury in order that he may acquit accused of a murder charge, the judge may direct the withdrawal of the juror, and discharge the jury, even though the defendant is innocent of the fraud, without making available to the defendant on a subsequent trial of the charge, the plea of former CRIMINAL LAW. [§ 394 jeopardy, because the jury thus con- stituted was not a “legal jury,” as contemplated by law. State v. Washington, 89 N. C. 535, 45 Am. Rep. 700, 1883. Jury not completed for want of talesman; it was held that prisoner had not been put upon his trial, and therefore was not acquitted by a discharge of the jury. State v. Bur- ket, 2 Mill, Const. 155, 12 Am. Dec. 662, 1818. No jeopardy until jury is sworn. Caples v. State, 3 Okla. Crim. Rep. 72, 26 L.R.A.(N.S.) 1038, 104 Pac. 493, 1909. Nolle prosequi—Entered before jury completed; the prisoner has not been put upon his trial. State v. Paterno, 43 La. Ann. 514, 9 So. 442, 1891. - As to effect of nolle prosequi, see notes in 37 Am. Dec. 365, and 41 Am. Dec, 321. —Entered after jury sworn, oper- ates as an acquittal, and bars a sec- ond indictment and trial for the same offense. [Cal.] People v. Disperati, 11 Cal. App. 469, 105 Pac. 617, 1909. [Ga.] Reynolds v. State, 3 Ga. 53, 1847. [Ind.] Joy v. State, 14 Ind. 139, 1860. [N. M.] United States v. Aurandt, 15 N. M. 292, 27 L.R.A. (N.S.) 1181, 107 Pac 1064, 1910. [Ohio] Mount v. State, 14 Ohio, 295, 45 Am. Dec, 542, 1846. [S. C.] State v. M’Kee, 1 Bail. L. 651, 21 Am. Dec. 499, 1830; State v. Howard, 15 Rich. L. 274, 1868. —Entered after trial begun, when blow was struck in one county and death resulted in another, will bar trial for the offense in such other county. Coleman v. State, 83 Miss. 290, 64 L.R.A. 807, 35 So. 934, 1 A. & E, Ann. Cas. 406, 1904. Nolle prosequi on an indictment for felonious assault, no bar to sub- sequent prosecution for the same assault charged as a misdemeanor. State v. Hussey, 145 Mo. App. 671, 123 S. W. 485, 1909. Nolle prosequi entered with court’s consent after jury is impaneled and proof offered is no bar to subsequent indictment for same offense, under the Mississippi Constitution provid- ing that there must an acquittal or conviction on the merits to bar an- § 364] DEFENSES. 517 tional sense, is a technical term applicable to criminal prose- cutions only.® As to when person is first put in jeopardy on a trial on a charge of the commission of a crime is a question upon which the au- thorities are not agreed; but the better opinion is thought to be that jeopardy does not arise until after the j jury is properly im- paneled and sworn to make due deliverance in the case, and that, when this is done, jeopardy attaches. All the authorities other prosecution. State v. Ken- nedy, 96 Miss. 624, 50 So. 978, 1910. —Entered at any time before jury charged, but not after that time, without having effect to acquit de- fendant. State v. M’Kee, 1 Bail. L. 651, 21 Am. Dec. 499, 1830. See [Ky.] Jocum v. Polly, 1 B. Mon. 358, 36 Am. Dec. 583, 1841. [Me.] State v. Whittier, 21 Me. 341, 38 Am. Dec. 272, 1842. [N. Y.] People v. Me- Leod, 1 Hill, 377, 25 Wend. 483, 37 Am. Dec. 328, 1841. —Statute unconstitutional which seeks to give to the prosecution power to enter nolle prosequi at any time before defendant offers proof, and escape the plea of former jeop- ardy. United States v. Aurandt, 15 N. M, 292, 27 L.R.A.(N.S.) 1181, 107 Pac. 1064, 1910. —That it does not bar, see State v. Hill, 122 La. 711, 48 So. 160, 1909; State v. Williams, 151 N. C. 666, 65 S. E. 908, 1909. Dismissal with consent of court after jury is impaneled and sworn does not raise jeopardy where the in- dictment is defective. Wilson v. Com. 3 Bush, 105, 1867. Return of verdict after term, though agreed upon during term, but not delivered because of absence of trial judge, record not showing cause of judge’s absence, acquits defend- ant. Morgan v. State, 13 Ind. 215, 1859. Submission to jury held in some cases necessary to raise jeopardy. See Foster v. State, 88 Ala. 182, 7 So. 185, 1889. Trial and acquittal by court sit- ting without a jury cannot be plead- ed in bar as former jeopardy, when on the first trial the state insisted upon a jury. [Ark.] Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54, 1840. [Ind.] State v. Mead, 4 Blackf. 309, 380 Am. Dec. 661, 1837. [Va.] Com. v. Somerville, 1 Va. Cas. 164, 5 Am. Dec. 51, 1811. Until trial is actually begun be- fore a jury and indictment read, jeopardy has not attached. State v. Nash, 46 La. Ann. 194, 14 So. 607, 1894. 9 [Eng.] Jacks v. Bell, 3 Car. & P. 316. [Fed.] Brown v. Evans, 8 Sawy. 488, 17 Fed. 912, 1883. [Fla.] Smith v. Bagwell, 19 Fla. 117, 45 Am. Rep. 12, 1882. [Ind.] Butler v. Mercer, 14 Ind. 479, 1860; Humph- ries v. Johnson, 20 Ind. 190, 1863; State ex rel. Scobey v. Stevens, 103° Ind. 55, 53 Am. Rep. 482, 2 N. E, 214, 1885. [Mass.] Austin v. Wilson, 4 Cush, 273, 50 Am. Dec. 766, 1849. [Okla.] Re ‘McClaskey, 2 Okla. 568, 37 Pac. 854, 1894. [Wis.] Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582, 1878. Compare: Taber v. Hutson, 5 Ind. 322, 61 Am. Dec. 96, 1854. 10 [Fed.] Ex parte Glenn, 111 Fed. 257, 1901. [Ala.] Grogan v. State, 44 Ala. 9, 1870; Bell v. State, 44 Ala. 398, 1870; Mixon v. State, 55 Ala. 129, 28 Am. Rep. 695, 1876. [Ark.] Lee v. State, 26 Ark. 260, 7 Am. Rep. 61, 1870; McKenzie v. State, 26 Ark. 334, 1870; Whitmore v. State, 43 Ark. 271, 1884; State v. Ward, 48 Ark. 36, 3 Am. St. Rep. 2138, 2 S. Ww. 191, 1886. [Cal.] People v. Webb, 38 Cal. 467, 1869; People v. Cage, 48 Cal. 323, 17 Am. Rep. 436, 1874; People v. Hunckeler, 48 Cal. 331, 1 Am. Crim. Rep. 507, 1874; People v. Higgins, 59 Cal. 357, 1881; People v. Horn, 70 Cal. 17, 11 Pac. 470, 1886; People v. Travers, 77 Cal. 176, 19 Pac. 268, 1888. [Fla.] Lovett v. 518 CRIMINAL LAW. [§ 394 agree that where jeopardy has once attached, for however short a time, the trial must proceed and be prosecuted to a legal State, 33 Fla. 389, 14 So. 837, 1894. [1nd.] Weinzorpflin v. State, 7 Blackf. 186, 1844; Morgan v. State, 13 Ind, 215, 1859; Joy v. State, 14 Ind. 139, 1860; State v. Walker, 26 Ind. 346, 1866; State v. Nelson, 26 Ind. 366, 1866. [Iowa] State v. Redman, 17 Iowa, 329, 1864. [Ky.] O’Brian v. Com. 9 Bush, 333, 15 Am. Rep. 715, 1 Am. Crim. Rep. 520, 1873; Wil- liams v. Com. 78 Ky. 93, 1879. [Minn.] State v. Sommers, 60 Minn. 90, 61 N. W. 907, 1895. [Miss.] Teat v. State, 53 Miss, 439, 24 Am. Rep. 708, 1876. [N. Y.] King v. People, 5 Hun, 297, 1875. [N. C.] Re Spier, 12 N. C. (1 Dev. L.) 491, 1828. [Ohio] Hines v. State, 24 Ohio St. 134, 1873. [Pa.] McFadden v. Com. 28 Pa. 12, 62 Am. Dec. 308, 1854; Hilands v. Com. 111 Pa. 1, 56 Am. Rep. 235, 2 Atl. 70, 6 Am. Crim. Rep. 339, 1886. [Tex.] Pi- zano v. State, 20 Tex. App. 139, 54 Am. Rep. 511, 1886; Yerger v. State, 41 S. W. 621, — Tex. Crim. Rep. —, 1897. [Wash.] State v. Kinghorn, 56 Wash. 131, 27 L.R.A.(N.S.) 136, 105 Pac. 234, 1909. [W. Va.] Gru- ber v. State, 3 W. Va. 699, 1869. Compare: United States v. Bige- low, 3 Mackey, 393, 1894; United States v. Phillips, 5 Mackey, 250, 1886. As to what constitutes jeopardy and when it begins, see notes in 21 Am. Dec. 505; 62 Am. Dec. 471; and 77 Am. Dec. 696. Difficult question is when jeopardy begins; until jeopardy actually be- gins, it cannot be said to exist. Gro- gan v. State, 44 Ala. 9, 1870; Whit- more v. State, 43 Ark. 271, 1884. “A party is placed in jeopardy whenever, upon a valid indictment, in a court of competent jurisdiction, and before a legally constituted jury, his trial has been fairly entered upon.” Teat v. State, 53 Miss. 453, 24 Am. Rep. 708, 1876. —Defendant is placed in apparent jeopardy when he is placed on trial before a competent court and a jury impaneled and sworn. His jeopardy is real, unless it shall subsequently appear that a verdict could never have been rendered by reason of the death or illness of the judge or a juryman, or that, after due deliber- ation, the jury could not agree, or by reason of some other like over- ruling necessity which compels their discharge without the consent of the defendant.” McKinstry, J., in Peo- ple v. Hunckeler, 48 Cal. 334, 1 Am. Crim. Rep. 507, 1874. —Machinery of court fully organ- ized for trial and judgment; jeopardy there attaches. McKenzie v. State, 26 Ark. 334, 1870. Jeopardy attaches immediately up- on the taking of any step in a direct investigation of the truth of the charge made against accused. Lips- comb v. State, 76 Miss. 223, 25 So. 158, 1898. —“Begins only after verdict” is the doctrine held by some of the cases. See [U. S.] United States v. Perez, 9 Wheat. 579, 6 L. ed. 165, 1824; United States v. Gilbert, 2 Sumn. 19, Fed. Cas. No. 15,204, 1834. [Ky.] Com. v. Olds, 5 Litt. (Ky.) 187, 1824; expressly overruled in O’Brian v. Com. 9 Bush, 333, 15 Am. Rep. 715, 1 Am. Crim. Rep. 520, 1873. [Miss.] State v. Moor, Walk. (Miss.) 134, 12 Am. Dec. 541, 1823. [N. Y.] People v. Goodwin, 18 Johns. 187, 9 Am. Dec, 203, 1820. Peril real, impending from verdict that might be returned by the jury upon the matter in reference to which accused is being tried and up- on which the jury might lawfully re- turn. Joy v. State, 14 Ind. 139, 1860. Plea of guilty having been entered, and nothing remaining but to pass sentence, accused has been in jeop- ardy. Boswell v. State, 111 Ind. 47, 11 N. E. 788, 1886. Showing that jeopardy attached is not sufficient; it must also be shown that it was not discharged by operation of law, or waived by the defendant. Hensley v. State, 107 Ind. 587, 8 N. E. 692, 1886. § 394] DEFENSES, 519 termination; otherwise the accused will be discharged of the criminal accusation, and cannot thereafter be tried therefor un- der the same or a subsequent indictment for the same offense.” Discharge of jury without verdict. After the trial of a crimi- nal charge has been duly entered upon, before a court regularly organized, and having jurisdiction of the subject-matter of the charge, and competent to try the defendant, on an indictment sufficient to support any judgment that may be rendered, with a lawful jury properly selected and sworn, a discharge of such jury, without the consent of the accused,” and without the ex- 11 [Ala.] Bell v. State, 44 Ala. 393, 1870. [Ark.] Lee v. State, 26 Ark. 260, 7 Am. Rep. 611, 1870. [Ind.] Joy v. State, 14 Ind. 139, 1860. [Iowa] State v. Calendine, 8 Iowa, 288, 1859. [Ky.] O’Brian v. Com. 9 Bush, 333, 15 Am. Rep. 715, 1 Am. Crim. Rep. 520, 1873. [N. Y.] King v. People, 5 Hun, 297, 1875. [Ohio] Hines v. State, 24 Ohio St. 134, 1873. {R. I.] State v. Nelson, 19 R. I. 467, 32 L.R.A. 559, 61 Am. St. Rep. 780, 34 Atl. 990, 1896. [Tex.] Upchurch v. State, 36 Tex. Crim. Rep. 624, 44 L.R.A. 694, 38 8. W. 206, 1896. Discharge of jury without statu- tory cause is equivalent to an acquit- tal. People ex rel. Stabile v. War- den, 67 Mise. 202, 122 N. Y. Supp. 284, 1910, affirmed in 139 App. Div. 488, 124 N. Y. Supp. 341, 1910. But discharge by court on learning, by independent inquiry, of incompe- tency of jury to sit, will not have that effect. State v. Hansford, 76 Kan. 678, 14 LR.A.(N.S.) 548, 92 Pac, 551, 1907. Discharge because prejudice in fa- vor of defendant in some of the ju- rors is so great as to render them incompetent to sit, ascertained by judge on independent investigation after the trial begun; the rule does not apply. Re Ascher, 130 Mich. 540, 57 L.R.A. 806, 90 N. W. 418, 1902. Waiver by defendant of objections at any stage of the trial bars plea of former jeopardy. Stone v. State,- 160 Ala. 94, 135 Am. St. Rep. 69, 49 So. 823, 1909; People v. Ham Tong, 155 Cal. 579, 24 L.R.A.(N.S.) 481, 132 Am. St. Rep. 110, 102 Pac. 263, 1909. 12 [Fed.] Ex parte Glenn, 111 Fed. 257, 1901. [Cal.] People v. Cage, 48 Cal. 323, 17 Am. Rep. 436, 1874; People v. Terrill, 132 Cal. 497, 64 Pac. 894, 1901. [Nev.] Ex parte Maxwell, 11 Nev. 428, 1876. [Ohio] Mitchell v. State, 42 Ohio St. 383, 1884. As to discharge of jury in absence of defendant, see note in 36 Am. Dec. 415. As to effect of illegal discharge of jury in criminal case, see note in 44 Am. Dee. 405. Discharge of jury without consent of accused is beyond the power of the court, where the jury have not agreed, and declare they cannot agree, upon a verdict, except in case of absolute necessity. Com. v. Cook, 6 Serg. & R. 577, 9 Am. Dec. 465, 1822; Com. v. Clue, 3 Rawle, 498, 1831. “Where a criminal case is put to a jury, it cannot be withdrawn, ex- cept by consent of the accused, or by some unavoidable accident to one of the jury or to the court.” State v. Edwards, 2 Nott. & M’C. 17, 10 Am. Dec. 557, 1819. Discharge of one juror and sub- stitution of another held proper un- der particular circumstances of the case, in State v. Davis, 31 W. Va. 390, 7S. E. 24, 1888. Evidence showing crime of higher grade than that charged in the in- dictment will not justify the court in the discharge of the jury without consent of the defendant; and such discharge will acquit the accused. People v. Hunckeler, 48 Cal. 331, 1 Am, Crim. Rep. 507, 1874; People v. 520 CRIMINAL LAW. [§ 394 istence of a state of facts under which the law provides for a discharge of a jury without a verdict, is equivalent to an acquittal of the defendant of the charge, and he can- not thereafter be tried thereon.” The only causes for which a jury impaneled and sworn to try an accused on a criminal charge can be discharged by the court without a verdict are. Ny Sam Chung, 94 Cal. 304, 28 Am. St. Rep. 129, 29 Pac. 642, 1892. Failure to find verdict on count in an indictment containing two or more counts, is an acquittal as to such count or counts not found upon. Weinzorpflin v. State, 7 Blackf. 186, 1844. See infra, § 395. Fraud of accused in respect to con- duct of trial may prevent jeopardy from attaching. See Mitchell v. State, 42 Ohio St. 383, 1884. Mistake as to cause of several charges against defendant on which he was being tried, works a discharge of the jury without the consent of the accused. Scott v. State, 110 Ala. 48, 20 So. 468, 1896. Prisoner absenting himself, there- by necessitating a discharge of the jury without a verdict; rule does not apply. People v. Higgins, 59 Cal. 357, 1881; State v. Wamire, 16 Ind. 357, 1861. See Alston v. State, 109 Ala. 51, 20 So. 81, 1895. 13 [Conn.] State v. Fox, 83 Conn. 286, 76 Atl. 302,19 A. & E. Ann. Cas. 682, 1910. [Ind.] Wright v. State, 5 Ind. 290, 61 Am. Dec, 90, 1854; State v. Walker, 26 Ind. 346, 1866; Maden v. Emmons, 83 Ind. 331, 1882; Doles v. State, 97 Ind. 555, 1884; Daggett v. Bonewitz, 107 Ind. 276, 7 N. E. 900, 1886. State, 53 Miss. 439, 24 Am. Rep. 708, 1876. Dismissal of jury impaneled to try accused on a criminal charge does not entitle him to a discharge, when. See [Ala.] Nugent v. State, 4 Stew. & P. (Ala.) 72, 24 Am. Dec. 746, 1838. [Conn.] State v. Woodruff, 2 Day, 504, 2 Am. Dec. 122, 1807. [{Mass.] Com. v. Purchase, 2 Pick. 520, 18 Am. Dec. 452, 1824; Com. v. Townsend, 5 Allen, 218, 1862; Com. v. Sholes, 13 Allen, 556, 1866. [Miss.] Teat v. (1) Consent of the prisoner; ** (2) illness of (a) one [Miss.] State v. Moor, Walk. (Miss.) 134, 12 Am. Dec. 541, 1823. [N. Y.] People v. Olcott, 2 Johns. Cas. 301, 1 Am. Dec. 168, 1801. [S. C.] State v. Burket, 2 Mill, Const. 155, 12 Am. Dec. 662, 1818. And see also notes in 1 Am. Dec. 176 and 12 Am. Dec. 547. Discharge at preliminary inquest is not an acquittal. State v. Fox, 83 Conn. 286, 76 Atl. 302,19 A. & E. Ann. Cas. 682, 1910. Evidence showing higher crime than that charged in the indictment; a discharge of the jury for that rea- son is an acquittal of the higher crime as well as of the lower one. [Ala.] Moore v. State, 71 Ala. 309, 1882. [Cal.] People v. Hunckeler, 48 Cal. 331, 1 Am. Crim. Rep. 507, 1874; People v. Ny Sam Chung, 94 Cal. 304, 28 Am. St. Rep. 129, 29 Pac. 642, 1892. [Ohio] Mitchell v. State, 42 Ohio St. 383, 1884. [W. Va.]} Moundsville v. Fountain, 27 W. Va. 182, 1885. 14 [Eng.] Reg. v. Oulaghan, Jebb, C. C. 270. [Ark,] Whitmore v. State, 43 Ark. 271, 1884. [Cal.] People v. Webb, 38 Cal. 467, 1869; People v. Travers, 77 Cal. 176, 19 Pac. 268, 1888; People v. Terrill, 182 Cal. 497, 64 Pac. 894, 1901. [Ind.] State v. Davis, 4 Blackf. 345, 1837. [Ky.] Robinson v. Com. 88 Ky. 386, 11 S. W. 210, 1889. [Mass.] Com. v. Tuck, 20 Pick. 356, 1838; Com. v. Kimball, 7 Gray, 328, 1856; Com. v. Good- enough, Thacher, Crim. Cas. 132, 1825. [N. Y.] Klock v. People, 2 Park. Crim. Rep. 676, 1856. [Ohio] Mount v. State, 14 Ohio, 295, 45 Am. Dec. 542, 1846; Baker v. State, 12 Ohio St. 214, 1861: Stewart v. State, 15 Ohio St. 155, 1864. [Tenn.] Ward v, State, 1 Humph. 253, 1839; Wal- ton v. State, 3 Sneed, 687, 1856; § 394] DEFENSES. 527 of the jurors,” (b) the prisoner,!® or (¢) the court; " (3) ab- sence of a juryman; ™ (4) impossibility of the jurors agreeing State v. Connor, 5 Coldw, 311, 1868. [Tex.] Pizano v. State, 20 Tex. App. 139, 54 Am. Rep. 511, 1886. [Wash.] State v. Kinghorn, 56 Wash. 131, 27 L.R.A.(N.S.) 186, 105 Pac. 234, 1909. Withdrawing juror after trial has commenced and the jury has been sworn, without the consent of the accused, will have the effect to ac- quit the defendant and bar a subse- quent prosecution. See authorities supra, note 5, this section. —Indictment bad, the above rule does not apply, because a man ean be put in jeopardy on a valid indictment only. Walton v. State, 3 Sneed, 687, 1856. See authorities footnote 4, this section. 15 [Ala.] Mixon v. State, 55 Ala. 129, 28 Am. Rep. 695, 1876. [Cal.] People v. Hunckeler, 48 Cal. 331, 1 Am, Crim. Rep. 507, 1874; People v. Travers, 77 Cal. 176, 19 Pac. 268, 1888. [Fla.] Lovett v. State, 33 Fla. 389, 14 So. 837, 1894. [Ind.] Doles v. State, 97 Ind. 555, 1884. [Kan.] State v. Smith, 44 Kan. 75, 8 L.R.A. 774, 21 Am. St. Rep. 266, 24 Pac. 84, 1890. [Ky.] Robinson v. Com. 88 Ky. 386, 11 S. W. 210, 1889. [Miss.] Whitten v. State, 61 Miss. 717, 1884. [Ohio] Mitchell v. State, 42 Ohio St. 383, 1884. [Tex.] Wood- ward v. State, 42 Tex. Crim. Rep. 188, 58 S. W. 135, 1900. [Vt.] State v. Emery, 59 Vt. 84, 7 Atl. 129, 7 Am. Crim. Rep. 202, 1886. Sick juror dismissed, and jury dis- charged in open court in presence of defendant’s counsel, but in absence of defendant; this is error, and equivalent to an acquittal of the ac- cused. See State v. Smith, 44 Kan. 75, 8 L.R.A. 774, 21 Am. St. Rep. 266, 24 Pac. 84, 1890. —Sickness of juror must be estab- lished in presence of accused. State v. Smith, 44 Kan. 75, 8 L.R.A. 774, 21 Am. St. Rep. 266, 24 Pac. 84, 1890. Telephonie notification of sick- ness of one of jurors, after trial has progressed for some time; discharge of jury on, over objection of defend- ant, works an acquittal of the charge. See State v. Nelson, 19 R. I. 467, 33 L.R.A. 559, 61 Am. St. Rep. 780, 34 Atl. 990, 1896. Serious illness of member of juror’s. family will not justify discharge of jury, even where it is probable that. death will intervene. Woodward v. State, 42 Tex. Crim. Rep. 188, 58 8S. W. 135, 1900. 16 [Cal.] People v. Travers, 77 Cal. 176, 19 Pac. 268, 1888. [Ky.] Robin- son v. Com. 88 Ky, 386, 11 8. W. 210, 1889. [Ohio] Mitchell v. State, 42 Ohio St. 383, 1884. “If the prisoner is found during the trial to be insane; or in a fit; or be found in labor; or if one of the jurors escape from his fellows, or go off, or become intoxicated; all these have operated to discharge the jury and subject the prisoner to a. second trial.” State v. M’Kee, 1 Bail. L. 651, 21 Am. Dec. 499, 1830. See Fost. C. L. 76; 1 Hale, P. C. 35; 2 Hale, P. C. 269; Leach C. L. 448; 1 Chitty, Crim. L. 629. 17 [Ala.] Mixon v. State, 55 Ala.. 129, 28 Am. Rep. 695, 1876. [Cal.} People v. Hunckeler, 48 Cal. 331, 1 Am. Crim. Rep. 507, 1874; People v.. Travers, 77 Cal. 176, 19 Pac. 268, 1888. [Fla.] Lovett v. State, 33 Fla, 389, 14 So. 837, 1894. [Ky.] Robinson v. Com. 88 Ky. 386, 11 S. W. 210, 1889. [La.] State v. Var- nado, 124 La. 711, 50 So. 661, 1909. [Ohio] Mitchell v. State, 42 Ohio- St. 383, 1884. [S. C.] State v.. M’Kee, 1 Bail. L. 651, 21 Am. Dec. 499, 1830. As to illness of judge being suffi- cient cause to warrant discharge of jury before verdict in a criminal case, see note in 24 Am. Dec. 750. 18 People v. Hunckeler, 48 Cal. 334, 1 Am. Crim. Rep. 507, 1874; Hen-~ ning v. State, 106 Ind. 386, 55 Am. Rep. 756, 6 N. E. 803, 7 N. E. 4,. 1885. Escape of juror before verdict, necessitating discharge of jury with- out returning a verdict, does not: constitute jeopardy. Henning v.. 522 CRIMINAL LAW. [§ 394 on a verdict; *® (5) some untoward accident that renders a ver- State, 106 Ind. 386, 55 Am. Rep. 756, 6 N. E. 803, 7 N. E. 4, 1885. 19 [U. S.] United States v. Perez, 9 Wheat. 579, 6 L. ed. 165, 1824; Ex parte Lange, 18 Wall. 163, 21 L. ed. 872, 1874. [Ala.] Barrett v. State, 35 Ala. 406, 1860. [Cal.] Ex parte McLaughlin, 41 Cal. 211, 10 Am. Rep. 272, 1871; People v. Cage, 48 Cal. 323, 17 Am. Rep. 436, 1874; People v. Ham Tong, 155 Cal. 579, 24 L.R.A.(N.S.) 481, 132 Am. St. Rep. 110, 102 Pac. 623, 1909; People v. Disperati, 11 Cal. App. 469, 105 Pac. 617, 1909. [Colo.] Re Al- lison, 13 Colo. 525, 10 L.R.A. 790, 16 Am. St. Rep. 224, 22 Pac. 820, 1889. [Conn,] State v. Woodruff, 2 Day, 504, 2 Am. Dec. 122, 1807. [Del.] State v. Updike, 4 Harr. (Del.) 581, 1847. [Fla.] State v. Lovett, 33 Fla. 389, 14 So. 837, 1894. [Ga.] Williford v. State, 23 Ga. 1, 1857; Lester v. State, 33 Ga. 329, 1862; Hopkins v. State, 6 Ga. App. 403, 65 8. E. 57, 1909. [Ill.] Dreyer v. People, 188 Ill. 40, 58 L.R.A. 869, 58 N. E. 620, 1901. [Ind.] State v. Walker, 26 Ind. 346, 1866; State vy. Larimore, 173 Ind. 452, 90 N. E. 898, 1910. [Kan.] State v. Hager, 61 Kan. 504, 48 L.R.A. 254, 59 Pac. 1080, 15 Am. Crim. Rep. 309, 1900; State v. Huff, 75 Kan. 585, 12 LR.A. (N.S.) 1094, 90 Pac. 279, 1907. [Ky.] Robinson v. Com. 88 Ky. 386, 11 8S. W. 210, 1889. [Md.] Hoffman v. State, 20 Md. 425, 1863. [Mass.] Com. v. Bowden, 9 Mass. 494, 1813; Com. v. Purchase, 2 Pick. 520, 13 Am. Dec. 452, 1824; Com. v. Town- send, 5 Allen, 218, 1862; Com. v. Sholes, 13 Allen, 558, 1866. [Miss.] Price v. State, 36 Miss, 531, 72 Am. Dec. 195, 1858; Whitten v. State, 61 Miss. 717, 1884. [Nev.] Ex parte Maxwell, 11 Nev. 428, 1876. [N. Y.] People v. Barrett, 2 Caines, 304, 2 Am. Dec. 239, 1805; People v. Ol- cott, 2 Johns. Cas. 301, 1 Am. Dee. 168, 1801; People v. Goodwin, 18 Johns, 187, 9 Am. Dec. 203, 1820; People ex rel. Stabile v. Warden, 139 App. Div. 488, 124 N. Y. Supp. 341, affirming 67 Mise. 202, 122 N. Y. Supp. 284, 1910; People v. Fish- man, 64 Misc. 256, 119 N. Y. Supp. 89, 1909; [N. C.] State v. Honey- cutt, 74 N. C. 391, 1876. [Ohio] Dobbins v. State, 14 Ohio St. 493, 1863; Mitchell v. State, 42 Ohio St. 383, 1884. [Pa.] McCreary v. Com. 29 Pa. 328, 1857; Com. v. Fitzpat- rick, 121 Pa. 109, 1 L.R.A. 451, 6 Am. St. Rep. 757, 15 Atl. 466, 7 Am. Crim. Rep, 199, 1888. [S. C.] State v. M’Kee, 1 Bail. L. 651, 21 Am. Dec. 499, 1830. [Tex.] Smith v. State, 27 Tex. App. 196, 11 S. W. 118, 1889. [Wash.] State v. Barnes, 54 Wash. 493, 23 L.R.A. (N.S.) 932, 103 Pac. 792, 1909. [W. Va.] Crookham v. State, 5 W. Va. 510, 1871. Compare: [N. C.] State v. Eph- raim, 19 N. C. (2 Dev. & B. L.) 162, 1836, [Pa] Com. v. Cook, 6 Serg. & R. 577, 9 Am. Dec. 465, 1822; Com. v. Clue, 3 Rawle, 498, 1831. [Tenn.] Mahala v. State, 10 Yerg. 532, 31 Am. Dec. 591, 1837. [Va.] Williams v. Com. 2 Gratt. 567, 44 Am. Dec. 403, 1845. As to discharge of jury without verdict, and its effect in relieving accused of a second trial, see notes in 1 Am. Dec. 176; 12 Am. Dec. 547; and 1 L.R.A. 452. As to what warrants discharge of jury without verdict in criminal case, see note in 31 Am. Dec. 598. After deliberating such time as, in the opinion of the judge presiding at the trial, sustained by facts dis- closed by the record, renders it un- reasonable or improbable that an agreement will be reached, the jury may be discharged without raising jeopardy. Mitchell v. State, 42 Ohio St. 383, 1884. That consent of counsel of defend- ant waives jeopardy has been held in some cases. People ex rel. Stabile v. Warden, 139 App. Div. 488, 124 N. Y. Supp. 341, affirming 67 Mise. 202, 122 N. Y. Supp. 284, 1910. Discharge of jury on ground they cannot agree on a verdict has been restricted to cases where the neces- sity of so doing is of an absolute character. People v. Goodwin, 18 Johns. 187, 9 Am. Dec. 203, 1820; § 394] DEFENSES. 523 dict impossible ;*° and (6) extreme and overwhelming physi- Com. v. Cook, 6 Serg. & R. 577, 9 Am. Dec. 465, 1822. See notes in 1 Am. Dec. 168 and 9 Am. Dec. 484. —After two hours’ deliberation on ground that they could not agree upon a verdict, discharge of jury will not be a bar to a subsequent trial on same charge, unless the court manifestly abused its discre- tion. State v. Harris, 119 La. 297, 11 L.R.A.(N.S.) 178, 44 So. 22, 1907. As to length of time jury should be permitted to deliberate before a mistrial may be ordered in a crim- inal case, see note in 11 L.R.A.(N.S.) 178-182. —Inability of jury to agree with- in few hours, no cause for their dis- charge. Com. v. Fitzpatrick, 121 Pa. 109, 1 L.R.A. 451, 6 Am. St. Rep. 757, 15 Atl. 466, 7 Am. Crim. Rep. 199, 1888. Discretion of court in discharging jury before verdict, subject to review. State v. Nelson, 19 R. I. 467, 38 L.R.A. 559, 61 Am. St.-Rep. 780, 34 Atl. 990, 1896. As to legal discretion, see Hines v. State, 24 Ohio St. 139, 1878. As to discretion of court in dis- charging jury for failure to agree, see [Neb.] State v. Shuchardt, 18 Neb. 454, 25 N. W. 722, 1885. [S.C.] State v. Kelley, 45 S. C. 659, 24 S. E. 45, 1895; State v. Stephenson, 54 8. C. 234, 32 S. E. 305, 1898. [Tex.] Powell v. State, 17 Tex. App. 345, 1884. Jury unable to agree, court direct- ed one to be withdrawn and, only eleven answering on the call, they were discharged; this was held not to be an acquittal of the defendant. People v. Olcott, 2 Johns. Cas. 301, 1 Am. Dec. 168, 1801 (this was a case of misdemeanor, but Mr. Justice Kent intimates that it would not have been an acquittal even in a capital case). See United States v. Perez, 9 Wheat. 579, 6 L. ed. 165, 1824. —Some absolute necessity for the discharge of the jury, outside of their inability to agree, has been held necessary in some cases. But the simple fact of such inability to agree is now generally regarded as such necessity as will warrant their dis- charge without the consent of the accused, in accordance with the doc- trine of the text. See Com. v. Pur- chase, 2 Pick. 521, 13 Am. Dec. 452, 1824; State v. Moor, Walk. (Miss.) 134, 12 Am. Dee. 541, 1823. Power of court to discharge for inability to agree must be exercised in accordance with the legal rules and sound discretion. People v. Cage, 48 Cal. 323, 17 Am. Rep. 436, 1874. Power to discharge is one of those questions of great difficulty, of mighty import, that are not capable of being determined by any general rule without manifest absurdity. State v. Ray, Rice, L. 1, 33 Am. Dec. 90, 1838. “Judges have therefore thought it safest to decide from time to time the cases that have been brought before them, taking care not to com- mit themselves on general prin- ciples.” Mr. Justice Tilghman in Com. v. Cook, 6 Serg. & R. 577, 9 Am. Dec. 465, 1822. Report of sheriff is not sufficient to warrant discharge without ver- dict. People v. Cage, 48 Cal. 323, 17 Am. Rep. 436, 1874. What order must show on dis- eharge of jury without a verdict. State v. Huff, 75 Kan. 585, 12 L.R.A. (N.S.) 1094, 90 Pac. 279, 1907. See also footnote 25, this section. Withdrawal of juror and order of mistrial, in a murder case, where the jury has been out for ten days and is unable to agree, do not constitute former jeopardy. State v. Washing- ton, 90 N. C. 664, 1884; State v. Carland, 90 N. C. 668, 1884. See also People v. Olcott, 2 Johns. Cas. 301, 1 Am. Dec. 168, 1801; State v. Washington, 89 N. C. 535, 45 Am. Rep. 700, 1883. 20 Woodward v. State, 42 Tex. Crim. Rep. 188, 58 N. W. 135, 1900. Conversation between juryman and prosecuting witness regarding merits of the case, necessitating discharge of jury, does not constitute jeopardy. People v. Fishman, 64 Misc. 256, 119 N. Y. Supp. 89, 1909. Disclosure of prejudice by juror, after trial has begun, growing out 524 eal or legal necessity.” CRIMINAL LAW. [§ 394 The statute providing the causes for and the circumstances under which a jury may be discharged of incident that occurred in his father’s family, which incident was recalled to his mind by the testi- mony, and rendering him unfit to sit in the case, is an “accident,” with- in the terms of statute providing for discharge of jury. State v. Hans- ford, 76 Kan. 678, 14 L.R.A.(N.8.) 548, 92 Pac. 551, 1907. Jury dispersing before verdict by permission of bailiff, contrary to the court’s order, occasioning a mistrial; accused is acquitted. Hopkins v. State, 6 Ga. App. 403, 65 S. E. 57, 1909. 21 [Ark.] Whitmore v. State, 43 Ark. 271, 1884. [Cal.] People v. Webb, 38 Cal. 467, 1869; People v. Cage, 48 Cal. 323, 17 Am. Rep. 436, 1874; People v. Hunckeler, 48 Cal. 331, 1 Am. Crim. Rep. 507, 1874; State v. Travers, 77 Cal. 176, 19 Pac. 268, 1888; People v. Terrill, 132 Cal. 497, 64 Pac, 894, 1901. [Ky.] O’Brian v. Com. 9 Bush, 333, 15 Am. Rep. 715, 1 Am. Crim. Rep. 520, 1873; Robinson v. Com. 88 Ky. 386, 11 S. W. 210, 1889. [Mass.] Com. v. Purchase, 2 Pick. 521, 13 Am, Dec. 452, 1824. [Miss.] Joseph- ine v. State, 39 Miss. 613, 1860; Whitten v. State, 61 Miss. 717, 1884. [Nev.] Ex parte Maxwell, 11 Nev. 428, 1876. [N. Y.] People v. Fish- man, 64 Misc. 256, 119 N. Y¥. Supp. 89, 1909. [Ohio] Mitchell v. State, 42 Ohio St. 383, 1884. [Tenn.] State v. Connor, 5 Coldw. 311, 1868. [Tex.] Pizano v. State, 20 Tex. App. 139, 54 Am. Rep. 511, 1886. Absence of defendant, voluntary, from trial, when he was present at time of its commencement; court not required to discharge jury by reason of such absence. State v. Wamire, 16 Ind. 357, 1861. Voluntary absence of the defend- ant necessitating discharge of jury not available on subsequent trial under plea of former jeopardy. [Ala.] Alston v. State, 109 Ala. 51, 20 So. 81, 1895. [Cal.] People v. Higgins, 59 Cal. 357, 1881. ([Fla.] Summeralls v. State, 37 Fla. 162, 52 Am. St. Rep. 247. 20 So. 242, 1896. —Expiration of term as a neces- sity justifying discharge of jury. See [Cal.] People v. Cage, 48 Cal. 323, 17 Am. Rep. 436, 1874. [Miss.] State v. Moor, Walk. (Miss.) 134, 12 Am. Dec. 541, 1823; Teat v. State, 53 Miss. 439, 24 Am. Rep. 708, 1876.. [Mo.] State v. Jeffors, 64 Mo. 376, 1877. [N. C.] State v. Tilletson, 52 N. C. (7 Jones, L.) 114, 75 Am. Dec.. 456, 1859. [Ohio] Mitchell v. State, 42 Ohio St. 383, 1884. [S. C.] State v. M’Lemore, 2 Hill, L. 680, 1835. Ending of term is not an extreme necessity justifying discharge of jury deliberating upon a verdict in a capital case, before they have agreed upon a verdict, in those cases where the court has power to extend the term; and, to discharge the jury under such circumstances, over the objection of the defendant, has the effect to acquit him of the charge. Com. v. Fitzpatrick, 121 Pa. 109, 1 LRA. 451, 6 Am. St. Rep. 757, 15 Atl. 466, 7 Am. Crim. Rep. 199, 1888. See Peiffer v. Com. 15 Pa. 468, 53 Am. Dec. 605, 1850; Mc- Fadden v. Com. 23 Pa. 12, 62 Am. Dec. 308, 1854; Alexander v. Com. 105 Pa. 1, 1884; Hilands v. Com. 111 Pa. 1, 56 Am. Rep. 235, 2 Atl. 70, 6 Am. Crim. Rep. 339, 1886. Expiration of, term not justifica- tion for discharge of jury without verdict, unless it is shown that there was necessity for such final adjourn- ment. People v. Cage, 48 Cal. 323, 17 Am. Rep. 436, 1874; Whitten v. State, 61 Miss. 717, 1884. Premature adjournment of term while jury is deliberating upon ver- dict, equivalent to an acquittal of the accused. People v. Cage, 48 Cal, 323, 17 Am. Rep. 436, 1874. Discharging jury because bailiff got liquor to treat jury from saloon of defendant held to be unnecessary, : and had the effect of acquittal of defendant. State v. Leunig, 42 Ind. 541, 1873. Jeopardy subject to suspension where ends of justice require jury to be discharged and another im- paneled. Oborn v. State. 143 Wis. 249, 31 L.R.A.(N.S.) 966, 126 N. W. 737, 1910. § 394] DEFENSES, 525 without rendering a verdict, controls the effect of a discharge before verdict.¥ For whatever cause a jury may be dis- charged, in accordance with the provisions of law regulating the exercise of this extraordinary power, the discharge must take place in open court,” Separating of jury by consent of parties is not such w necessity as will justify discharge of jury with- out consent of accused. Hilands v. Com. 111 Pa. 1, 56 Am. Rep. 235, 2 Atl. 70, 6 Am. Crim. Rep. 339, 1886. 22 People ex rel. Stabile v. Warden, 139 App. Div. 488, 124 N. Y. Supp. -431, 1909, affirming 67 Misc. 202, 122 N. Y. Supp. 284, 1910. 283 Dangerous sickness of wife of juror represented to court after the evidence for the state was in, and ithe judge, while absent from the court, and in the absence of the ac- cused, released such juror, which act resulted in the discharge of the jury; the act of the judge was held to be unlawful and equivalent to an acquittal of the accused. Up- church v. State, 36 Tex. Crim. Rep. 624, 44 L.R.A. 694, 38 S. W. 206, 1896. See State v. Smith, 44 Kan. 75, 8 L.R.A. 774, 21 Am. St. Rep. 266, ‘24 Pac. 84, 1890. 24[Ala.] State v. Battle, 7 Ala. ‘259, 1845; Jones v. State, 97 Ala. 77, 388 Am. St. Rep. 150, 12 So. 274, 1892; Alston v. State, 109 Ala. 51, 20 So. 81, 1895. [Cal.] People v. Higgins, 59 Cal. 357, 1881. [Conn.] ‘State v. Hurlbut, 1 Root, 90, 1784. [Ga.] Noland v. State, 53 Ga. 137, 1874, 55 Ga. 521, 21 Am. Rep. 281, ‘1 Am. Crim. Rep. 532, 1875. [Ind.] Miller v. State, 8 Ind. 325, 1856; State v. Wamire, 16 Ind. 357. 1861; ‘State v. Wilson, 50 Ind. 487, 19 Am. Rep. 719, 1 Am. Crim. Rep. 529, 1875. [Kan.] State v. Smith, 44 Kan. 75, 8 L.R.A. 774, 21 Am. ‘St. Rep. 266, 24 Pac. 84, 1890. ‘[Minn.] State v. Sommers, 60 Minn. 90, 61 N. W. 907, 1895. [Miss.] Finch v. State, 53 Miss. 363, 1876. [N. C.] State v. Alman, 64 N. C. 364, 1870. [Or.] Ex parte Tice, 32 Or. 179, 49 Pac. 1038, 1897. [Tenn.] Andrews v. State, 2 Sneed, 550, 1855. and in the presence of the defendant; ** [Tex.] Rudder v. State, 29 Tex. App. 262, 15 S. W. 717, 1890; Upchurch v. State, 36 Tex. Crim. Rep. 624, 44 L.R.A. 694, 38 S. W. 206, 1896. Discharge of jury in absence of defendant, because of inability to agree, is illegal, and discharges de- fendant. [Cal.] People v. Cage, 48 Cal. 323, 17 Am. Rep. 436, 1874 (ad- journment of term by court, without calling in a jury which was out de- liberating upon a verdict, held ac- quittal of accused). [Ga.] Noland v. State, 55 Ga. 521, 21 Am. Kep. 281, 1 Am. Crim. Rep. 532, 1875. [Iind.] State v. Wilson, 50 Ind. 487, 19 Am. Rep. 719, 1 Am. Crim. Rep. 529, 1875. [Miss.] Finch v. State, 53 Miss. 363, 1876. As to discharge of jury in pris- oner’s absence, and validity of plea of former jeopardy based thereon, see note in 44 L.R.A. 694, 698. —Presence waived by consent; rule is otherwise when there is necessity for a discharge of the jury. Peo- ple v. Smalling, 94 Cal. 112, 29 Pac. 421, 1892. Discharge of jury on returning verdict to clerk after adjournment of court, illegal, and equivalent to an acquittal, Jones v. State, 97 Ala. 77, 38 Am. St. Rep. 150, 12 So. 274, 1892. Dispersal of jury without knowl- edge or consent of court, counsel, or defendant, for whatever cause, is equivalent to an acquittal. See Maden v. Emmons, 83 Ind. 331, 1882. Sealed verdict agreed upon. In case the jury should agree upon a verdict after adjournment of court for the day, and should bring in such verdict after adjournment of court, and thereafter disperse with- out consent of bailiff, rule does not apply. Tervin v. State, 37 Fla. 396, 20 So. 551, 1896. Voluntary absence of defendant, compelling discharge of jury, does 526 CRIMINAL LAW. [§ 394 otherwise the discharge of the jury will be equivalent to an acquittal of the accused.” Jeopardy, to be available, must (1) be specifically pleaded, or otherwise it is deemed to have been waived;** (2) the crime charged must be a necessary ingredient of the one on which the accused was formerly tried; *’ (3) the transaction must be the same and established by the same proof.” § 395. —Attaches when. Legal jeopardy arises and is available upon an acquittal,’ whether such acquittal is valid or not raise former jeopardy. See sup- ra, footnote 23, this section. 25 Order discharging jury without verdict should show affirmatively the existence of the fact which induced the order, and justified the exercise of the extraordinary power. [Fla.] Adams v. State, 34 Fla. 185, 15 So. 905, 1894. [Kan.] State v. Smith, 44 Kan. 75, 8 L.R.A. 774, 21 Am. St. Rep. 266, 24 Pac. 84, 1890; State v. Huff, 75 Kan. 585, 12 L.R.A. (N.S.) 1094, 90 Pac. 279, 1907. [Tex.] Wright v. State, 35 Tex. Crim. Rep. 158, 32 S. W. 701, 1895. 26 Gue v. Eugene, 53 Or. 282, 100 Pae. 254, 1909. Plea special; not admissible under plea of general issue. Rickles v. State, 68 Ala. 538, 1881; State v. Morgan, 95 N. C. 641, 1886. But where the two trials are in the same court, it is not necessary to interpose the plea of former jeop- ardy. Robinson v. State, 21 Tex. App. 160, 17 S. W. 632, 1886; Foster v. State, 25 Tex. App. 548, 8 S. W. 664, 1888. : 27 State v. Cooper, 13 N. J. L. 361, 25 Am. Dec. 490, 1833. Acquittal of killing with pre- meditated malice does not work an acquittal of another count in same indictment, charging killing to have been in perpetrating a felony. Bis- sot v. State, 53 Ind. 408, 1876. Prosecution for murder, of one attempting to rob, is not barred by former conviction of an assault with intent to rob. Keaton v. State, 41 Tex. Crim. Rep. 621, 57 S. W. 1125, 1900. 28 Shuburt v. State, 21 Tex. App. 551, 2 8. W. 883, 1886. Acquittal on indictment for larceny is bar to subsequent indictment for same act, alleging taking on a dif- ferent day and laying ownership in a different person. Goode v. State, 70 Ga. 752, 1883. Evidence necessary to support second indictment must be sufficient to have procured a conviction on the first trial. Com. v. Trimmer, 84 Pa. 65, 1877; Hilands v. Com. 111 Pa. 1, 56 Am. Rep. 235, 2 Atl. 70, 6 Am. Crim. Rep. 339, 1886. 1 Acquittal on charge of criminal offense is « bar to the subsequent prosecution for perjury in swearing by accused that he did not commit the crime charged. Cooper v. Com. 106 Ky. 909, 45 L.R.A. 216, 90 Am. St. Rep. 275, 51 S. W. 789, 59 S. W. 524, 11 Am. Crim. Rep. 625, 1899. Swearing he did not commit the act charged in the indictment— pointing a pistol—may be subse- quently prosecuted as perjury not- withstanding acquittal of first charge. Tudor v. Com. 134 Ky. 186, 119 S. W. 816, 1909. Acquittal procured by bribery of prosecuting officer is a bar to a sub- sequent trial for the same offense. Shideler v. State, 129 Ind. 523, 16 L.R.A. 225, 28 Am. St. Rep. 206, 28 N. E, 537, 29 N. E. 36, 1891. Acquittal under indictment for seduction is a bar to a subsequent. trial for fornication, or for fornica- tion and bastardy, for the reason that ou an indictment for an offense below the grade of felony which in- eludes illicit connection, and of which illicit connection forms an essential part, the defendant may be found guilty of fornication. Respublica v. Roberts, 1 Yeates, 6, 1791; Dinkey § 395] DEFENSES. 527 is invalid,” where the court on the first trial had jurisdiction ; or on discharge of jury by the court because the evidence shows a higher degree of crime than that charged in the indictment ; ® likewise, a conviction * on a criminal charge is a bar to a subse- quent indictment on trial for any offense of which the accused might have been convicted under the first indictment,® provided only the conviction was upon the merits, which is necessary to raise jeopardy,° and where the new offense charged is the same v. Com. 17 Pa. 126, 55 Am. Dec. 542, 1851. Nicholson v. Com, 91 Pa. 392, 1879. Compare: State v. Lash, 16 N. J. L. 380, 32 Am. Dec. 397, 1838, hold- ing that on an indictment for adul- tery, defendant cannot be found guilty of fornication. 2Shoemaker v. State, 58 Tex. Crim. Rep. 518, 126 S. W. 887, 1910. 8 [Ala.] Moore v. State, 71 Ala. 309, 1882. [Cal.] People v. Huncke- ler, 48 Cal. 331, 1 Am. Crim. Rep. 507, 1874; People v. Ny Sam Chung, 94 Cal. 304, 28 Am. St. Rep. 129, 29 Pac. 642, 1892. [Ohio] Mitchell v. State, 42 Ohio St. 398, 1884. [W. Va.] Moundsville v. Fountain, 27 W. Va. 194, 1885. 4State v. Lismore, 94 Ark. 211, 29 L-R.A.(N.S.) 721, 126 S. W. 855, 1910. Conviction of lower crime than charged in indictment, on retrial after new trial granted; defendant cannot be convicted of a _ higher crime on the retrial than that of which he was convicted on the first trial. People v. McFarlane, 138 Cal. 481, 61 L.R.A. 245, 71 Pac. 568, 72 Pac. 48, 1901. Conviction upon which no judg- ment rendered may be set up in bar of a second indictment and trial for the same offense. Brennan v. Peo- ple, 15 Il. 517, 1854; Logg v. Peo- ple, 8 Ill. App. 102, 1880; Poage v. State, 3 Ohio St. 239, 1854. Conviction and performing sen- tence imposed under an indictment or judgment so defective it would have been set aside if attacked will be a bar to a subsequent trial for the same offense, on the ground of former jeopardy. Com. v. Loud, 3 Met. 328, 37 Am. Dec. 189, 1841; Com. v. Keith, 8 Met. 532, 1844; Wood v. Southwick, 97 Mass. 356, 1867. As to identity of facts in a plea of former jeopardy, see monographic note in 92 Am. St. Rep. 89-159. Any proceedings short of convic- tion or acquittal, under proceedings upon an insufficient indictment, will not constitute former jeopardy. State v. Ward, 48 Ark. 36, 3 Am. St. Rep. 213, 2 S. W. 191, 1886. Conviction of battery is a bar to a subsequent prosecution for assault to murder, growing out of the same state of facts. People v. McDaniels, 187 Cal. 192, 59 L.R.A. 578, 92 Am. St. Rep. 81, 69 Pac. 1006, 1902. Conviction of manslaughter on an indictment for murder; the accused can be again indicted and tried for the same murder. State v. Hornsby, 8 Rob. (La.) 583, 41 Am. Dee. 314, 1845. Verdict intended as a verdict of guilty, so defective and uncertain that the court. does not know for what offense to pass judgment; the court may, against the defendant’s objection, set the verdict aside, and this action will not constitute a bar to a subsequent trial. State v. Red- man, 17 Iowa, 335, 1864. 5 Offense of which accused could have been convicted upon first trial is barred to a subsequent prosecu- tion. State v. Caston, 96 Miss. 183, 50 So. 569, 1909. Not essential to sustain plea of former jeopardy, that proof in the two prosecutions be identical; it is sufficient if the evidence shows it to be the same act or omission. Wil- liams v. State, 58 Tex. Crim. Rep. 193, 125 S. W. 42, 1910. 6 People v. Fishman, 64 Misc. 256, 119 N. Y. Supp. 89, 1909. Conviction -on insufficient indict- ment containing three counts, on one count, is an acquitta] as to the other counts, notwithstanding the defect in 528 CRIMINAL LAW. [§ 395 in law and in fact.”?. Thus, where the accused killed two ani- mals belonging to the same owner as part of one transaction, a conviction as to one animal will be a bar to a proceeding as to the other; * acquittal on charge of receiving stolen goods bars a trial of the same person for their theft; conviction of assault, before a justice of the peace, bars a subsequent proceeding in a higher court for the same offense ; '° conviction of keeping a place which is a common nuisance will bar other prosecutions for the same offense during the period covered by the indictment ; * con- viction of charge of larceny from the person bars a subsequent prosecution for simple larceny on the same transaction.” Test as to whether two indictments are for the same offense is the fact whether evidence necessary to support the latter in- dictment would have sustained a conviction under the former indictment.8 Testimony to sustain the second charge not being admissible to sustain the first charge, there is no former jeop- ardy.™ Failure to convict on counts of indictment containing two or more counts is equivalent to an acquittal thereon.’* And where a person tried on an indictment for an offense including a lesser offense may, on trial, be convicted of the lesser offense, an acquittal or conviction on the trial of the charge of the greater form or substance in the indictment on which the acquittal was had, un- der the Missouri statute. State v. Hall, 141 Mo. App. 701, 125 S. W. 229, 1910. 7People v. Helbing, 61 Cal. 620, 1882. As to what constitutes former jeopardy, see notes in 24 Am. Dec. 463; 30 Am. Dec. 420; 35 Am. Dec. 72; 41 Am. Dec. 321; 49 Am. Dec. 705; 51 Am. Dec. 464; 59 Am. Dec. 229; 61 Am. Dec. 95; 77 Am. Dec. 696; 11 Am. St. Rep. 159; 24 Am. St. Rep. 742; 48 Am. St. Rep. 214; 92 Am, St. Rep. 89-159. Neither conviction nor pardon for one offense can be pleaded in bar of a trial for another distinct offense growing out of the same act or transaction, on the ground of former jeopardy. Hawkins v. State, 9 Ala. 137, 44 Am. Dec. 431, 1846. 8La Flour v. State, 59 Tex. Crim. Rep. 645, 129 S. W. 351, 1910. 9State’ v. Fox, 83 Conn. 286, 76 Atl. 302, 19 A. & E. Ann. Cas. 682, 1910. 10 State v. Cale, 150 N. C. 805, 134 Am. St. Rep. 957, 63 S. E, 958, 1909. 11 State v. Arsenault, 106 Me. 192, 76 Atl. 410, 1909. 12Thomas v. State, 5 Ga. App. 840, 63 S. E. 1124, 1909. 18 State v. Van Buren, 86 S. C. 297, 68 S. E. 568, 1910. 14United States v. Aurandt. 15 N. M. 292, 27 L.R.A.(NS.) 1181, 107 Pac. 1064, 1910. 15 State v. Polk, 144 Mo. App. 326, 127 S. W. 938, 1910. Failure to find verdict on one count in an indictment of two or more counts is an acquittal upon all counts regarding which there is no finding. Wopespiin v. State, 7 Blackf, 186, 4, § 396] DEFENSES. 529 offense is a bar to a subsequent trial on a charge of the lesser offense,’® on the ground of former jeopardy.” Reversal of judgment of conviction on the ground alone that wrong judgment was given upon a lawful and regular trial and conviction; defendant cannot be tried again on the same charge. Trial for higher offense on second trial, in those cases where the verdict is set aside and a new trial granted, than that of which accused was convicted on the first trial, is a question upon which the authorities do not agree, some holding that defendant cannot be convicted of a higher grade of the offense than that returned in the first verdict, on the theory that the first verdict is an acquittal of the higher crime; but other cases hold that where the verdict is set aside on motion of the accused, for errors occurring at the trial, the case is placed in the same position it was before trial had, and that the plea of jeopardy as to the higher degree cannot be interposed.” § 396. —Does not attach when. Legal jeopardy does not arise when the indictment under which the party is tried is in- sufficient ;? or because another has been arrested for the same Cignarale, 110 N. Y. 23,17 N. E. 135, 1888. [Tex.] Cheek v. State, 4 Tex. App. 448, 1878. [Va.] Livingstone v. 16 See supra, § 393, foot notes, 10— 3 17Dinkey v. Com. 17 Pa. 126, 55 Am. Dec. 542, 1851; Nicholson v. Com. 91 Pa. 392, 1879; Respublica v. Roberts, 1 Yeates, 6, 1791; Com. v. Miller, 4 Phila, 214, 1860; Com. v. Toland, 11 Phila, 435, 1876. 18 Shepherd v. People, 25 N. Y. 406, 1862; Hartung v. People, 28 N. Y. 400, 1863. 19 [Fed.] Re Bennett, 84 Fed. 326, 1897. [Ala.] Bell v. State, 48 Ala. 684, 695, 17 Am. Rep. 40, 49, 1874. [Ark.] Johnson v. State, 29 Ark. 31, 46, 21 Am. Rep. 154, 164, 2 Am. Crim. Rep. 480, 1874. [Cal.] Peo- ple v. Gilmore, 4 Cal. 376, 60 Am. Dec. 620, 1854; People v. Apgar, 35 Cal. 391, 1868; People v. Gordon, 99 Cal. 227, 38 Pac. 901, 1893; People v. Defoor, 100 Cal. 150, 34 Pac. 642, 1893. [Fla.] Johnson v. State, 27 Fla. 245, 9 So. 208, 1891. [Iowa] State v. Tweedy, 11 Iowa, 357, 1860; [La.] State v. Dennison, 31 La, Ann. $48, 1879. [Mo.] State v. Ross, 29 Mo. 44, 1859. [N. Y.] People v. Crim. L. Vol. I—34. Com, 14 Gratt. 608, 1857; Stuart v. Com. 28 Gratt. 957, 1877. [Wis.] State v. Belden, 33 Wis. 121, 124, 14 Am. Rep. 748, 750, 1873. 20 [Ind.] Ex parte Bradley, 48 Ind. 553, 1874. [Kan.] State v. McCord, 8 Kan. 232, 241, 12 Am. Rep. 469, 470, 1871. [Mont.] State v. Thomp- son, 10 Mont. 549, 27 Pac. 349, 1891. [Neb.] Bohanan v. State, 18 Neb. 57, 53 Am. Rep. 791, 793, 24 N. W. 390, 6 Am. Crim. Rep. 487, 1885. [Ohio] Sutcliffe v. State, 18 Ohio, 469, 51 Am. Dec. 459, 1849. See notes 27 Am. Dec. 480; 58 Am. Dec. 544; 4 Am. St. Rep. 117, 119. 1See supra, § 394 foot-note, 4; also [Eng.] Vaux’s Case, 4 Coke, 44; Rex v. Emden, 9 East, 439; Rex v. Burridge, 3 P. Wms. 439. [Cal.] People v. Ammerman, 118 Cal. 23, 50 Pac. 15, 1897. [Ill] Gerard v. People, 4 Il 262, 1842. ([Ky.] Mount v. Com. 2 Duv. 93, 1865. [Mass.] Com. v. Bakeman, 105 Mass. 530 CRIMINAL LAW. [§ 396 crime;” or where the court has no jurisdiction of the offense ;* or the court erroneously instructs the jury that indictment charged robbery ;* or where the commission of the crime was enjoined, under statute, and a violation of the injunction has been punished as a contempt of court, because the contempt and the commission of the crime are distinct offenses and may sep- arately be proceeded against, the one creating no bar as to the other.’ Where the defendant is present when the trial begins and voluntarily absents himself therefrom, such absence will not raise a bar ;° and where the judge presiding at the trial, on inde- pendent investigation, after the trial is commenced, finds that some of the jury are so prejudiced in favor of the accused as to 53, 1870. [Mich.] People v. Cook, 10 Mich. 164, 1862. [Ohio] Sutcliffe v. State, 18 Ohio, 469, 51 Am. Dec. 459, 1849. [Okla.] Ex parte Dodson, 3 Okla. Crim. Rep. 514, 107 Pac. 450, 1910. [S. C.] State v. Ray, Rice, L. 1, 38 Am. Dec. 90, 1838; State v. Shirer, 20 S. C. 406, 1883. Indictment or information failing to charge an offense. People v. Am- merman, 118 Cal. 23, 50 Pac. 15, 1897. ; First indictment clearly insuf- ficient or invalid. [Ill.] Gerard v. People, 4 Ill 362, 1842. [Ky.] Mount v. Com. 2 Duv. 938, 1865. [Mass.] Com. v. Bakeman, 105 Mass. 53, 1870. [Mich.] People v. Cook, 10 Mich. 164, 1862. Legal jeopardy does not result from an arraignment upon a void in- dictment. State v. Ray, Rice, L. 1, 33 Am. Dec. 90, 1838. Sustaining demurrer no bar to subsequent prosecution. Ex parte Dodson, 3 Okla. Crim. Rep. 514, 107 Pac, 450, 1910; State v. Shirer, 20 S. C. 406, 1883. Acquittal upon insufficient indict- ment does not constitute jeopardy, and is no bar to another prosecution for the same offense. State v. Ray, Rice, L. 1, 38 Am. Dec. 90, 1838. See Sutcliffe v. State, 18 Ohio, 469, 51 Am. Dec. 459, 1849; Vaux’s Case, 4 Coke, 44; Rex v. Emden, 9 East, 439; Rex v. Burridge, 3 P. Wms. 439. 2People v. Boos, 155 Mich. 407, 120 N. W. 11, 1909. 3[Mass.] Com. v. Goddard, 13 Mass. 455, 1816. [Mich.] People v. Tyler, 7 Mich. 161, 74 Am. Dee. 703, 1859. [Miss.] Montross v. State, 61 Miss. 429, 1883. Where court has not jurisdiction of the subject-matter, an indictment and conviction will be no bar to a subsequent prosecution for the same offense. Peterson v. State, 79 Neb. 132, 14 L.R.A.(N.S.) 292, 126 Am. St. Rep. 651, 112 N. W. 306, 1907. 4People v. Ham Tong, 155 Cal. 579, 24 L.R.A.(N.S.) 481, 132 Am. St. Rep. 110, 102 Pac. 263, 1909. Court erroneously instructing jury, withdrawing minor offense from their consideration; an acquittal of the higher grade of offense will not be a bar to a subsequent: trial for the inferior offense erroneously with- held from the jury. Montgomery v. State, 186 Wis. 119, 18 L.R.A.(N.S.) 339, 116 N. W. 876, 1908. Directed verdict of acquittal on charge of embezzling of “money” is no bar to a subsequent indictment and trial for embezzling of a “check,” both actions being founded upon the same state of facts or transaction. State v. Kimball, 7 Penn. (Del.) 146, 77 Atl. 412, 1910. 5 Ex parte Allison, 99 Tex. 455, 2 L.R.A.(N.S.) 1111, 122 Am. St. Rep. 653, 90 S. W. 870, 1906. 6 [Ala.] State v. Battle, 7 Ala. 259, 1845; Alston v. State, 109 Ala. 51, 20 So. 81, 1895. [Cal.] People v. Higgins, 59 Cal. 357, 1881. [Ind] State v. Wamire, 16 Ind. 357, 1861. § 396) DEFENSES. 531 be incompetent to sit, and discharges the jury, this will not con- stitute jeopardy barring a subsequent trial.” Where the pros- ecuting attorney, after evidence is all in, abandons one of two counts in an indictment, this will not bar a subsequent prose- cution as to the counts withdrawn or abandoned, although the jury is thereafter necessarily discharged and the prosecution dismissed without prejudice.* Where the term of court, as fixed by law, comes to an end before the completion of a trial and the return of a verdict by the jury,° this will not constitute a bar except in those cases where the court has the power to ex- tend the term.’? And where, after the close of the defendant’s evidence, the prosecutor asked leave to introduce a witness not examined before the grand jury, and of whose examination notice had not been given, which leave was granted by the court, and defendant elected to have cause continued, such continuance was held not to raise the bar of jeopardy;** and the same is true where, a juror becoming ill during the progress of the trial, the jury has to be discharged.” Acquittal of the assault on arresting officer at or after arrest is not a bar to a trial for assault on same officer subsequently, at the station house; * or acquittal of accusation of assault because of variance in name of person assaulted; nor, on trial under charge of passing a “pay check,” to a subsequent prosecution for the theft of such check; ™ nor, on charge of murder in attempt- ing to commit arson, to a subsequent prosecution for the arson ; ae nor, on an indictment for practising medicine at specified times without license by prescribing to unknown persons, a bar to sub- sequent prosecution alleging a prescription to designated per- 7Re Ascher, 130 Mich. 540, 57 L.R.A. 806, 90 N. W. 418, 1902. 8 State v. Huff, 75 Kan. 585, 12 L.R.A.(NS.) 1094, 90 Pac. 279, 1907. 9 [Ala.] State v. Battle, 7 Ala. 257, 1845. [Ind.] Wright v. State, 5 Ind. 290, 61 Am. Dec. 90, 1854. [Tenn.] Mahala v. State, 10 Yerg. 532, 31 Am. Dec. 591, 1837; State v. Brooks, 3 Humph. 70, 1842. 10 Com. v. Fitzpatrick, 121 Pa. 109, 1 L.R.A. 451, 6 Am. St. Rep. 757, 15 At]. 466, 1888. 11 State v. Falconer, 70 Iowa, 416, 30 N. W. 655, 1886. 12 State v. Emery, 59 Vt. 84, 7 Atl. 129, 7 Am. Crim. Rep. 202, 1886. See supra, § 394, foot-note, 15. 18 State v. Hussey, 145 Mo. App. 671, 123 S. W. 485, 1909. 14 Reynolds v. State, 58 Tex. Crim. Rep. 273, 124 8. W. 931, 1910. 15 Fulshear v. State, 59 Tex. Crim. Rep. 376, 128 S. W. 134, 1910. 16 State v. Bobbitt, 228 Mo. 252, 128 S. W. 953, 1910. 532 CRIMINAL LAW. [§ 396 sons;’” nor on charge of larceny, a bar to prosecution for chan- ging marks and brands of domestic animals. Conviction for a lower grade of offense than charged in an indictment, being reversed on appeal of the defendant, does not bar a trial for the higher crime charged on a retrial of the cause; *® and on charge of wilfully shooting at, it does not bar prosecution for shooting with dangerous weapon with intent to murder ; * of illegal registration, it will not bar subsequent pros- ecution for false swearing to procure such registration;** of gaming, it is no bar to a prosecution for gaming with minors; ” or of affray, no bar to subsequent prosecution for aggravated as- sault based on the same facts; or of simple assault in justice’s court, no bar to prosecution for aggravated assault in a higher court ; ** or of betting on a game of poker, no bar to subsequent prosecution for betting on a game of craps;*° on a charge of burglary, no bar to a subsequent conviction of theft committed in connection with the same transaction;** under charge of conspiracy with others to induce prosecuting witness to bet on wrestling match, no bar to a subsequent prosecution for “bunko steering.” *” 17 State v. Van Buren, 86 S. C. 297, 68 S. E. 568, 1910. 18 People v. Kerrick, 144 Cal. 46, 77 Pac. 711, 1904. 19 Brantley v. Georgia, 217 U. S. 284, 54 L. ed. 768, 30 Sup. Ct. Rep. 514, 1910, affirming 133 Ga. 264, 65 S. E. 426, 1909; Brantley v. State, 132 Ga. 573, 22 L.R.A.(N.S.) 959, 131 Am. St. Rep. 218, 64 S. E. 676, 1909. Conviction of lower offense; on re- versal, accused cannot be prosecuted on second trial for the higher grade of the offense. Jackson v. State, 55 Tex. Crim. Rep. 79, 181 Am. St. Rep. 792, 115 S. W. 262, 1909. Conviction of manslaughter on a charge of murder; on reversal, on ap- peal of accused, second trial may be for murder. Re Somers, 31 Nev. 531, 24 L.R.A.(N.S.) 504, 103 Pac. 1078, 1909. 20State v. Hill, 122 La. 711, 48 So. 160, 1909. 21 Hughes v. Com. 131 Ky. 502, 31 L.R.A.(N.S.) 698, 115 S. W. 744, 1909, Conviction set aside on motion of the defendant,” 22Sparks v. State, 88 Ark. 520, 114 S. W. 1183, 1909. 23 Decker v. State, 58 Tex. Crim. Rep. 159, 124 S. W. 912, 1910. 24Caudle v. State, 57 Tex. Crim. Rep. 363, 123 S. W. 413, 1909. 26 Grayson v. State, 92 Ark. 413, 123 S. W. 388, 19 A. & E. Ann. Cas. 929, 1909. 26 Clark v. State, 59 Tex. Crim. Rep. 246, 29 L.R.A.(N.S.) 323, 128 8. W. 131, 1910. 27 Fleming v. State, — Ind. —, 91 N. E. 1085, 1910. 28 [Ala.] Morrisette v. State, 77 Ala. 71, 1884. [Ark.] Johnson v. State, 29 Ark. 31, 21 Am. Rep. 154, 2 Am. Crim. Rep. 430, 1874. [Cal.] People v. Olwell, 28 Cal. 456, 1865; People v. Barric, 49 Cal. 342, 1 Am. Crim. Rep. 178, 1874; People v. Hel- bing, 61 Cal. 620, 1882. [Ga.] Brant- ley v. State, 182 Ga. 573, 22 L.R.A. (N. 8.) 959, 122 Am. St. Rep. 218, 64 S. E. 676, 1909. [IIL] Gerard v. People, 4 Ill. 362, 1842. [Iowa] State v. Redman, 17 Iowa, 329, 1864; DEFENSES. 533 § 396] on ground that conviction was not for the offense charged,” or that defendant had been deprived of a public trial,® will not be a bar to a subsequent trial for the same offense. Discharge by magistrate is not an acquittal, and does not raise a bar of jeopardy;*! where a justice, having concurrent jurisdiction, fails to act and make inquiry, this does not con- stitute an acquittal, and will not be a bar to a prosecution in a higher court.* And a discharge on habeas corpus proceedings for failure to bring to trial in sixty days will not constitute a bar to a subsequent trial of the cause.®* Different offenses comprised within the same act or trans- action ; an acquittal or conviction on trial for one will not be a bar to a trial on a charge of the other; ** and where the same act State v. Clark, 69 Iowa, 196, 28 N. W. 5387, 1886. [La.] State v. Walters, 16 La. Ann. 400, 1862. [Mich.] People vy. White, 68 Mich. 648, 37 N. W. 34, 1888; People v. Price, 74 Mich. 37, 41 N. W. 853, 1889; People v. Murray, 89 Mich. 76, 14 L.R.A. 809, 28 Am. St. Rep. 294, 50 N. W. 995, 9 Am. Crim. Rep. 719, 1891. [Nev.] Re Somers, 31 Nev. 531, 24 L.R.A.(N.S.) 504, 185 Am. St. Rep. 700, 103 Pac. 1073, 1909. [N. Y.] People v. Casborus, 13 Johns. 351, 1816. [Ohio] Sutcliffe v. State, 18 Ohio, 469, 51 Am. Dec. 459, 1849. [S. C.] State v. Gillis, 73 S. C. 318, 5 L.R.A.(N.S.) 571, 114 Am. St. Rep. 95, 53 S. E. 487, 6 A. & E. Ann. Cas. 993, 1906. [Tenn.] State v. Norvell, 2 Yerg. 24, 24 Am. Dec. 458, 1820; State v. Hays, 2 Lea, 156, 2 Am. Crim. Rep. 630, 1879. [Va.] Com. v. Hatton, 3 Gratt. 623, 1846. 29 People v. Helbing, 61 Cal. 620, 1882. 80 People v. Murray, 89 Mich. 276, 14 L.RB.A. 809, 28 Am. St. Rep. 294, 50 N. W. 995, 9 Am. Crim. Rep. 719, 1891. See People v. Kerrigan, 73 Cal. 222, 14 Pac. 849, 1887; State v. Brooks, 92 Mo, 542, 5 S. W. 257, 330, 1887. As to right of public trial, and what are infringements thereon, see note in 28 Am. St. Rep. 308. 31 People v. Dillon, 197 N. Y. 254, 90 N. E. 820, 18 A. & E. Ann. Cas. 552, 1910, reversing 128 App. Div. 926, 112 N. Y. Supp. 1140, 1908. 82 State v. Stanley, 82 Vt. 37, 71 Atl. 817, 1909. 83 Re Begerow, 136 Cal. 293, 56 L.R.A. 528, 68 Pac. 773, 1902. 34 State v. Jellison, 104 Me. 281, 71 Atl. 716, 1909; Wood v. State, 30 Ohio C. C. 255, 1907. A and B killed in same affray, but by different shots; conviction of kill- ing A will not bar a subsequent prosecution charging the killing of B. Morris v. Territory, 1 Okla. Crim. Rep. 617, 99 Pac. 760, 101 Pac. 111, 1909. Conviction of sale to one, on charge of sale of whisky to a club formed to enable seller to deliver whisky to purchasers in less quanti- ty than allowed by law, will not bar prosecution for sale to others of the club. Wathen, M. & Co. v. Com. 133 Ky. 94, 116 S. W. 336, 1176, 1909. Different offense in same trans- action, not barred by former acquit- tal or conviction as to the other of- fense. [Cal.] People v. Disperati, 11 Cal. App. 469, 105 Pac. 617, 1909. [Iowa] State v. Blodgett, 143 Iowa, 578, 121 S. W. 685, 21 A. & E. Ann. Cas. 231, 1909. [Tex.] Wallace v. State, 57 Tex. Crim. Rep. 354, 123 S. W. 135, 1909; Parks v. State, 57 Tex. Crim. Rep. 569, 123 S. W. 1109, 1910. Double damages for casual and in- voluntary trespass by cutting timber on state lands, no bar to infliction of other penalties provided by law for the act. Shevlin-Carpenter Co. 534 CRIMINAL LAW. [§ 306 is an offense against two sovereigns, trial and acquittal or con- viction as to the offense against the one will not bar a subse- quent trial as to the offense committed against the other, al- though both prosecutions are based on the same state of facts.® Trial without arraignment or plea,** or upon a transcript without a seal,” does not raise jeopardy. And, in a trial at a special term of court when the holding of such special term is not authorized by law, the proceedings thereat are coram non judice, and accused is not put in jeopardy, because such pro- ceedings are not judicial, or by judicial authority, but are wholly void.* Appeal pending from a conviction and judgment is not available on a plea of former jeopardy in a subsequent trial for the same offense. And an information in the higher, on appeal from conviction in a justice’s court, does not constitute a dis- missal of the complaint and bar future prosecution.*° v. Minnesota, 218 U. S. 57, 54 L. ed. 930, 30 Sup. Ct. Rep. 663, 1910, af- firming 102 Minn. 470, 113 N. W. 634, 114 N. W. 738, 1907. Search warrant, adjudication in proceedings on, for intoxicating liquors kept in violation of law, does not bar subsequent trial on charge of illegal sale. State v. Dougherty, 147 Iowa, 570, 126 N. W. 696, 1910. Violation of injunction against illegal sale of intoxicating liquors; acquittal in contempt proceedings for, does not relieve on prosecution for the illegal sale itself. Brown v. Powers, 146 Iowa, 729, 125 N. W. 833, 1910. See Gibson v. Hutchinson, 148 Iowa, 139, 126 N. W. 790, 1910. Where act declared a nuisance, and subject to prosecution and punish- ment as such, conviction or acquittal of charge of nuisance not a bar to a prosecution and punishment for the penal offense. State v. Armeno, 29 R. I. 431, 72 Atl. 216, 1909. 85 [Fed.] United States v. Palan, 167 Fed. 991, 1909. [Iowa] State v. Moore, 143 Iowa, 240, 121 N. W. 1052, 21 A. & E. Ann. Cas. 63, 1909. [Or.] Mayhew v. Eugene, 56 Or. 102, 104 Pac. 727, 1909. Breaking into and entering post- office to steal; conviction and punish- ment under United States statute will not bar a subsequent prose- cution by the state for burglary, charging the same state of facts. State v. Moore, 143 Iowa, 240, 121 N. W. 1052, 21 A. & E. Amn. Cas. 63, 1909. 36 State v. Rook, 61 Kan. 382, 49 L.R.A. 186, 59 Pac. 653, 1900; People v. Rosenthal, 197 N. Y¥. 394, — L.R.A.(N.S.) —, 90 N. EH. 991, 1916. 37 Ball v. State, 48 Ark. 94, 2 8. W. 462, 1886. 88 Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54, 1840. 89 Com. v. Fraher, 126 Mass. 265, 1879; Williams v. State, 20 Tex. App. 357, 1886; Dupree v. State, 56 Tex. Crim. Rep. 562, 23 L.R.A.(N.S.) 596, 133 Am. St. Rep. 998, 120 S. W. 871, 1909; Harvey v. State, 57 Tex. Crim. Rep. 5, 136 Am. St. Rep. 971, 121 S. W. 501, 1909. Compare: United States v. Olsen, 57 Fed. 579, 1893. As to effect of appeal from con- viction in a criminal case upon its operation as a bar to another prose- cution for the same offense, see nete in 23 L.R.A.(N.S.) 596. 40 State v. Poyner, 57 Wash. 489, 107 Pac. 181, 1910. § 3967 DEFENSES. 535 Arrest of judgment, on motion of defendant, because indict- ment on which conviction had conceded to be invalid by prose- cuting officer, or for any other legal cause, cannot be pleaded in bar to a subsequent trial.” Reversal of conviction on application of accused, because of error by trial court; the former conviction cannot be set up or be any bar of subsequent prosecution for the same offense.*® Thus, the reversal on appeal by accused of a conviction of involuntary manslaughter, under an indictment for murder, will not prevent a retrial on the charge of murder; * and a reversal of the con- viction on charge of challenge to fight a duel does not constitute former jeopardy barring prosecution for assault, where there was a dismissal without prejudice.* Setting aside judgment and verdict, on application of the ac- cused, because he was denied a public trial,® or for other legal causes,*® does not raise jeopardy that will bar a subsequent trial.*” 41[U. S.] Coleman v. Tennessee, 97 U. 8B. 509, 24 L. ed. 1118, 1878. [N. Y¥.] People v. Casborus, 13 Johns. 351, 1816. [Pa.] Com. v. Huffman, Addison (Pa.) 140, 1793. 42 McGinn v. State, 46 Neb. 427, 30 LR.A. 450. 50 Am. St. Rep. 617, 65 N. W. 46, 1895. Sentence imposed under statute passed after offense committed, re- versed en application of accused, and resentence imposed under another statute existing at time crime was committed, nothwithstanding fact he had served a portion of the time under the first sentence, including one day in solitary confinement which each sentence imposed. Com. v. Murphy, 174 Mass. 369, 48 L.R.A. 393, 75 Am. St. Rep. 353, 54 N. E. 860, 1899. Reversal of conviction of lesser crime, en application of accused, for errors, etc., occurring at the trial; former eonviction will not be a bar to a subsequent trial for the great- er offense, on the theory of prior acquittal of that charge in the verdict for the lesser offense. Re Somers, 31 Nev. 531, 24 L.R.A.(N.58.) 504, 135 Am. St. Rep. 700, 103 Pac. 1073, 1909. 43 Perdue v. State, 134 Ga. 300, 67 8S. E. 810, 1910. 44 Ward v. Com. — Ky: —, 128 S. W. 72, 1910. 45 People v. Murray, 89 Mich. 276, 14 L.R.A. 809, 28 Am. St. Rep. 294, 50 N. W. 995, 9 Am. Crim. Rep. 719, 1891. 46Plea of once in jeopardy by reason of a former conviction upon indictment and proof before a law- ful jury cannot avail the accused when such conviction has been set aside by the appellate court, on de- fendant’s motion, for errors occur- ring on the trial. Sutcliffe v. State, 18 Ohio, 469, 51 Am. Dec. 459, 1849. Setting aside verdict of man- slaughter upon trial for murder, on motion of accused; on second trial he may be convicted of murder, because, by his action in setting aside the first verdict, he waived his constitu- tional protection against second jeopardy. Brantley v. State, 132 Ga. 573, 22 L.R.A.(N.S.) 959, 131 Am. St. Rep. 218, 64 8. E. 676, 16 A. & E. Ann. Cas. 1203, 1909; State v. Gillis, 73 8S. C. 318, 5 L.R.A.(N.S.) 571, 114 Am. St. Rep. 95, 53 S. E. 487, 6 A. & E. Ann. Cas. 993, 1906. 47 State v. Redman, 17 Iowa, 329, 1864. 536 § 397. Good character as a defense. acter is his most. valuable asset; CRIMINAL LAW. [§ 397 A man’s good char- and when accused of crime, he is entitled to put known reputation’? for good character? in relation to the trait of character involved in the crime charged,* for the purpose of showing, or assisting to show, any of the following matters and things: * (1) To disjove the commission 1 Reputation as to character in re- lation to the particular trait in- volved in the crime charged. See infra, footnote, 3, this section. —Broad distinction between char- acter and reputation as to character. One is the fact, and the other the opinion entertained in the com- munity as to character. See 2 Bouvier’s Law Dict. 895. 2¥Failure to call witnesses as to character does not raise presump- tion of bad character. [Iowa] State v. Dockstader, 42 Iowa, 436, 2 Am. Crim. Rep. 469, 1876. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, #1850. ([N. Y.] Ormsby v. People, 538 N. Y. 472, 1873; People v. Bodine, 1 Denio, 282, 1845. [N. C.] State v. O’Neal, 29 N. C. (7 Ired. L.) 251, 1847. [Ohio] Harrington v. State, 19 Ohio St. 264, 1869. Rebuttal of evidence of good char- acter may be made by evidence of bad character adduced from the ac- cused’s own admission, but not by proof of particular acts. [Ala.] Smith v. State, 47 Ala. 540, 1872. [Ill.] McCarty v. People, 51 Ill. 231, 99 Am. Dec. 542, 1869. [Iowa] State v. Gordon, 3 Iowa, 410, 1856. [Mo.] State v. Williams, 77 Mo. 310, 1883. 8 Evidence of good character con- fined to the trait of character in- volved in the crime charged. Thus, in the trial of an indictment, de- fendant cannot give evidence of reputation as to character for truth and varacity. [Ala.] Morgan v. State, 88 Ala. 228, 6 So. 761, 1889. [Cal.] People v. Josephs, 7 Cal. 129, 1857; People v. Chrisman, 135 Cal. 288, 67 Pac. 136, 1901. [Mo.] State v. Dalton, 27 Mo. 18, 1858 (not per- mitted to show character as in- dustrious citizen when charged with assault to kill); State v. O’Connor, 31 Mo. 389, 1861. _ Whole character with regard to trait involved must be put in evi- dence; defendant may not show par- ticular instances of good conduct, and the state cannot. show particular instances of bad conduct. See [Cal.] People v. Milgate, 5 Cal. 127, 1855. [Ind.] Engleman v. State, 2 Ind. 91, 52 Am. Dec. 494, 1850. [Va.] Carter v. Com. 2 Va. Cas. 169. 4[Mass.] Com. v. Hardy, 2 Mass. 317, 1807. [Mo.] State v. King, 78 Mo. 555, 1883. [Tex.] Jones v. State, 10 Tex. App. 552, 1881; Brownlee v. State, 138 Tex. App. 255, 1882. [Vt.] Wright v. McKee, 37 Vt. 161, 1864. See full discussion of subject in 3 Ene. Ev. pp. 5-14. Bad character cannot be shown by prosecution, unless the accused puts the question of character in issue by introducing evidence of good char- acter. [Del.] State v. Carter, Houst. Crim. Rep. (Del.) 402. [Mo.] State v. Creson, 38 Mo. 372, 1866. [N.Y.] People v. Bodine, 1 Edm. Sel. Cas. 36; People v. White, 14 Wend. 111, 1835. —Subsequently acquired, may be shown, where issue of character is involved, although it is of little weight. But it may have some weight because, as a rule, the de- scent from virtue to crime is general. Com. v. Sacket, 22 Pick. 394, 1839. Doubtful cases only, in which evi- dence of guilt not clearly proved is evidence of good character, to be given any weight, is held by some eases, though the better rule is thought to be that evidence of good character is entitled to weight in all cases. See, as holding the restrict- ed rule [Ark.] Edmonds v. State, 34 Ark. 720, 1879. [Cal.] People v. Stewart, 28 Cal. 396, 1865 (dictum only), denied in People v. Ashe, 44 Cal. 288, 1872. [Del] State v. § 397] Smith, 9 Houst. (Del.) 588, 33 Atl. 441, 1892. —Proof of good character very im- portant, and may be weighed by the jury in connection with other cireum- stances; and, so weighed, may com- pel acquittal. See [Ala.] Felix v. State, 18 Ala. 720, 1851; Rosenbaum v. State, 33 Ala. 354, 1859; Williams v. State, 52 Ala. 411, 1875. [Ga.] Epps v. State, 19 Ga. 102, 1855. [Ind.] Cavender v. State, 126 Ind. 47, 25 N. E. 875, 1890. [Nev.] State v. Levigne, 17 Nev. 435, 30 Pac. 1084, 1883. [N. J.] State v. Wells, 1 N. J. L. 424, 1 Am. Dee. 211, 1790. [N. Y.] Stover v. People, 56 N. Y. 315, 1874; People v. Cole, 4 Park. Crim. Rep. 35, 1857; Stephens v. People, 4 Park, Crim. Rep. 396, 1859. [Pa.] Kilpatrick v. Com. 31 Pa. 198, 1858; Com. v. Carey, 2 Brewst. (Pa.) 404, 1868. [S. C.] State v. Ford, 3 Strobh. L. 517, 1849. [Tenn.] Ben- nett v. State, 8 Humph. 118, 1847. Old rule, that evidence of good character of the defendant is not to be considered unless the other evi- dence leaves the minds of the jury in doubt, is now against the weight of authority. [Fed.] United States v. Smith, 2 Bond, 323, Fed. Cas. No. 16,322, 1869; United States v. Mayer, Deady, 127, Fed. Cas. No. 15,753, 1865; United States v. Allen, 7 Int. Rev. Rec. 168, Fed. Cas. No. 14,432, 1810; United States v. Freeman, 1 Mason, 505, Fed. Cas. No. 15,162, 1827; United States v. Knowles, 4 Sawy. 217, Fed. Cas. No. 15,540, 1864; United States v. Johnson, 26 Fed. 682, 1885; United States v. Means, 42 Fed. 599, 1889. [Cal.] People v. Milgate, 5 Cal. 127, 1855; People v. Josephs, 7 Cal. 129, 1857; People v. Stewart, 28 Cal. 395, 1865; People v. Ashe, 44 Cal. 288, 1872. [D. C.] United States v. Bowen, 3 MacArth, 64, 1877. [Ga.] Jackson v. State, 76 Ga. 551, 1886; Redd v. State, 99 Ga. 210, 25 S. E. 268, 1896. [Iowa] State v. Lindley, 51 Iowa, 343, 33 Am. Rep. 139, 1 N. W. 484, 1879. [Mass.] Com. v. Leonard, 140 Mass. 473, 54 Am. Rep. 485, 4 N. E. 96, 7 Am. Crim. Rep. 593, 1886. [Mich.] People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162, 1868. [Miss.] McDaniel v. State, 8 Smedes & M. DEFENSES. 537 401, 47 Am. Dec. 98, 1847; Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62, 1859; Coleman v. State, 59 Miss. 484, 1882. [N. J.] State v. Wells, 1N. J. L. 424, 1 Am. Dee. 211, 1790. [N. Y.] Cancemi v. People, 16 N. Y. 501, 1858; Remsen v. People, 43 N. Y. 6, 1870; Wagner v. People, 54 Barb. 367, 1866; Green v. Cornwell, 1 N. Y. City Hall Rec. 11, 1816; Free- land’s Case, 1 N. Y. City Hall Ree. 82, 1816; People v. Hammill, 2 Park. Crim. Rep. 228, 1855; People v. Cole, 4 Park. Crim. Rep. 35, 1857; Lowen- berg v. People, 5 Park. Crim. Rep. 414, 1863; People v. Kirby, 1 Wheel- er, Crim. Cas. 64, 1822. [N. C.] State v. Henry, 50 N. C. (5 Jones, L.) 65, 1857. [Ohio] Harrington v. State, 19 Ohio St. 264, 1869; Stewart v. State, 22 Ohio St. 477, 1872. [Pa.] Heine v. Com. 91 Pa. 145, 1879. [S. C.] State v. Ford, 3 Strobh. L. 517, note, 1849. [Tenn.] Bennett v. State, 8 Humph. 118, 1847. [Tex.] Johnson v. State, 1 Tex. App. 146, 1876; Mathews v. State, 32 Tex. Crim. Rep. 355, 23 S. W. 690, 1893. [Vt.] State v. Daley, 538 Vt. 442, 38 Am, Rep. 694, 1881. [Wis.] Hogan v. State, 36 Wis. 226, 1874. Positive proof by credible wit- nesses cannot be overcome by proof of good character. [Ga.] Epps v. State, 19 Ga. 102, 1855. [Ind.] Voght v. State, 145 Ind. 12, 43 N. E. 1049, 1895. [Mass.] Com. v. Hardy, 2 Mass. 303, 317, 1807; Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [Miss.] Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62, 1859. [Mo.] People v. MeMurphy, 52 Mo. 251, 1873. Practice of allowing evidence of good character was introduced in the reign of Charles II., but was confined to capital offenses in which the evidence was circumstantial, or there was doubt as to the guilt of the accused; but was never admitted when guilt was plainly shown. Red- dick v. State, 25 Fla. 112, 5 So. 704, 1889; State v. Laxton, 76 N. C. 216, 1877. Weight to be given to evidence of good character in case of doubt only, is the holding of some of the cases, but the weight of authority in the modern cases is the other way. 538 CRIMINAL LAW. [§ 397 of the offense;® (2) to rebut the evidence of presumption of criminal intent;® (3) to show the probability of mistake or falsehood on the part of the witnesses for the prosecution ;” (4) for the purpose of raising a doubt as to guilt, when considered in connection with other evidence, where such doubt would not otherwise exist ;*® and (5) for the purpose of mitigating punish- Among the cases holding to above rule, see [Ark.] Edmonds v. State. 34 Ark. 720, 1879. [Cal.] People v. Stewart, 28 Cal. 396, 1865. [Del.] State v. Smith, 9 Houst. (Del.) 588, 33 Atl. 441, 1892. Compare: People v. Clements, 42 Hun, 353, 1886. 5 Rosenbaum v. State, 33 Ala. 354, 1859; State v. Boyett, 32 N. C. (10 Tred. L.) 336, 1849; State v. Downs, 116 N. C. 1064, 21 S. E. 689, 1895; State v. McLean, 121 N. C. 589, 42 L.R.A. 721, 28 S. E. 140, 1879. 6 Character previously good; evi- dence of, admissible for purpose of showing it unlikely that the ac- cused could have been guilty of the particular crime charged. [Ark.] Kee v. State, 28 Ark. 155, 2 Am. Crim. Rep. 263, 1873. [Cal.] People v. Doggett, 62 Cal. 27, 1882. [Tll.] Hirschman v. People, 101 Ill. 568, 1882. [Ind.] State v. Bloom, 68 Ind. 54, 34 Am. Rep. 247, 1879. [Iowa] State v. Ormiston, 66 Iowa, 143, 23 N. W. 370, 5 Am. Crim. Rep. 113, 1885. [Ky.] Young v. Com. 6 Bush, 312, 1869. —Character subsequent to com- mission of crime charged cannot be shown in defense. Brown v. State, 46 Ala. 175, 1871; State v. Kinley, 43 Iowa, 294, 1876. Presumption arising from facts and circumstances may be refuted by evidence of good character. State v. Rodman, 62 Jowa, 456, 17 N. W. 663, 1883; State v. Ford, 3 Strobh. L. 517, note, 1849. 7 [Iowa] State v. Wolf, 112 Iowa, 458, 84 N. W. 536, 1900. [Kan.] State v. Deuel, 63 Kan. 811, 66 Pac. 1037, 1901. [Tex.] Renfro v. State, 42 Tex. Crim. Rep. 393, 56 S. W. 1013, 1901. [Utah] State v. Van Kuran, 25 Utah, 8, 69 Pac. 60, 1902. Error to confine evidence of good character to rebuttal of evidence of presumption, the probability of mis- take or falsehood in witnesses, and the like. Walker v. State, 136 Ind. 663, 36 N. E. 356, 1898; Voght v. State, 145 Ind. 12, 43 N. E. 1049, 1895. Compare: Rosenbaum v. State, 33 Ala. 354, 1859. 8[Fed.] Edgington v. United States, 164 U. 8S. 361, 41 L. ed. 467, 17 Sup. Ct. Rep. 72, 1896; United States v. Hutchins, 1 Cin. Law Bull. 371, Fed. Cas. No. 15,430, 1876; United States v. Jones, 31 Fed. 718, 1887. [Ala.] Hall v. State, 40 Ala. 698, 1867; Hays v. State, 110 Ala. 60, 20 So. 322, 1896; Fields v. State, 47 Ala. 603, 11 Am. Rep. 771, 1872; Carson v. State, 50 Ala. 134, 1873; Armor v. State, 63 Ala. 173, 1879; Hussey v. State, 87 Ala. 121, 6 So. 420, 1888; Goldsmith v. State, 105 Ala. 8, 16 So. 933, 1894; Seott v. State, 105 Ala. 57, 53 Am. Bt. Rep. 100, 16 So. 925, 1894; Newsom v. State, 107 Ala. 133, 18 So. 206, 1894; Murphy v. State, 108 Ala. 10, 18 So. 557, 1895; Dorsey v. State, 110 Ah. 38, 20 So. 450, 1896; McLeroy v. State, 120 Ala. 274, 25 So. 247, 1898. [Ark.] Kee v. State, 28 Ark. 155, 2 Am. Crim. Rep. 263. 1873. [Cal.] People v. Ashe, 44 Cal. 288, 1872; People v. Fenwick, 45 Cal. 287, 1873 (felony); People v. Raina, 45 Cal. 292, 1873 (larceny); People v. Bell, 49 Cal. 485, 1875; People v. Shepard- son, 49 Cal. 629, 1875 (robbery); People v. Carey, 53 Cal. 361, 1879 (murder); People v. Smith, 59 Cal. 607, 1881; People v. Doggett, 62 Cal. 27, 1882; People v. Chrisman, 135 Cal. 288, 67 Pac. 136, 1901; People v. French, 137 Cal. 219, 69 Pac. 1063, 1902. [Del.] Daniels v. State, 2 Penn. (Del.) 593, 54 L.R.A. 286, 48 Atl. 196, 1901; People v. Snow, 3 Penn. (Del.) 259, 51 Atl. 607, 1901. [D. C.] United States v. Gunnell, 5 § 397] Mackey, 196, 1886. [Fla.] Hance v. State, 8 Fla. 56, 1858. Bacon v. State, 22 Fla. 51, 1886. [Ga.] Davis v. State, 10 Ga. 101, 1851. [IIL] Jupitz v. People, 34 Ill. 516, 1864; Steele v. People, 45 Ill. 152, 1867; Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569, 1872; Aneals v. People, 134 Mil. 401, 25 N. E. 1022, 1890; Mark v. Merz, 53 Ill. App. 458, 1893. [Ind.] Wagner v. State, 107 Ind. 71, 57 Am. Rep. 79, 7 N. E. 896, 1886; Cavender v. State, 126 Ind. 47, 25 N. E. 875, 1890. [Iowa] State v. Kinley, 43 Iowa, 294, 1876; State v. Northrup, 48 Iowa, 583, 585, 30 Am. Rep. 408, 410, 1878 (larceny); State v. Horning, 49 Iowa, 158, 1878; State v. Gustafson, 50 Iowa, 194, 1878; State v. Lindley, 51 Iowa, 343, 33 Am. Rep. 139, 1 N. W. 484, 1879; State v. Donovan, 61 Iowa, 278, 16 N. W. 130, 4 Am. Crim. Rep. 25, 1883. [Kan.] State v. Douglass, 44 Kan. 618, 26 Pac. 476, 1890. [La.] State v. Garie, 35 La. Ann. 970, 1883. [Mass.] Com. v. Hardy, 2 Mass. 303, 313, 1807; Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850; Com. v. Leonard, 140 Mass. 473, 54 Am. Rep. 485, 4 N. E. 96, 7 Am. Crim. Rep. 593, 1886; Com. v. Wilson, 152 Mass. 12, 25 N. E. 16, 1890. [Mich.] People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162, 1868; People v. Jas- sino, 100 Mich. 536, 59 N. W. 230, 1894; People v. Laird, 102 Mich. 135, 60 N. W. 457, 1894; People v. Van- Dam, 107 Mich. 425, 65 N. W. 277, 1895. [Minn.] State v. Hogard, 12 Minn. 293, Gil. 191, 1866; State v. Beebe, 17 Minn. 241, Gil. 218, 1871; State v. Holmes, 65 Minn. 230, 68 N. W. 11, 1896. [Miss.] Coleman v. State, 59 Miss. 484, 1882. [Mo.] O’Bryan v. O’Bryan, 13 Mo. 16, 53 Am. Dec. 129, 1850 (charge of adultery); State v. McMurphy, 52 Mo. 251, 1873; State v. Alexander, 66 Mo. 148, 1877; State v. Crank, 75 Mo. 406, 1882; State v. McNally, 87 Mo. 644, 1885; State v. Howell, 100 Mo. 628, 14 S. W. 4, 1890; State v. Shroyer, 104 Mo. 441, 24 Am. St. Rep. 344, 16 S. W. 286, 1891. [Neb.] Myers v. State, 51 Neb. 517, 71 N. W. 33, 1897. [Nev.] People v. Glea- son, 1 Nev. 1738, 1865; State v. Levigne, 17 Nev. 435, 30 Pac. 1084, DEFENSES. 539 1883. [N. J.] Baker v. State, 53 N. J. L. 45, 20 Atl. 858, 1890. [N. Y.] Cancemi v. People, 16 N. Y. 501, 1858; Remsen v. People, 43 N. Y. 6, 1870; Stover v. People, 56 N. Y. 315, 1874; People v. Brooks, 131 N. Y. 321, 30 N. E. 189, 1892; Ryan v. People, 19 Abb. Pr. 232, 1865; People v. Pollock, 51 Hun, 613, 4 N. Y. Supp. 297, 1889; People v. Lamb, 2 Keyes, 360, 1866; People v. Kerr, 6 N. Y. Crim. Rep. 406, 6 N. Y. Supp. 674, 1889. [N. C.] State v. Henry, 50 N. C. (5 Jones, L.) 65, 1854; State v. Johnson, 60 N. C. (1 Winst. L.) 151, 1868. [Or.] State v. Gar- rand, 5 Or. 222, 1874; State v. Porter, 32 Or. 135, 49 Pac. 964, 1897. [Pa.] Kilpatrick v. Com. 31 Pa. 198. 1858; Heine v. Com. 91 Pa. 145, 1879; Hanney v. Com. 116 Pa. 322, 6 Atl. 339, 1887; Com. v. Corey, 2 Brewst. (Pa.) 404, 1868. [Tex.] Lee v. State, 2 Tex. App. 338, 1877; Lee v. State, 2 Tex. App. 338, 1877. [Utah] People v. Hancock, 7 Utah, 170, 25 Pac. 1093, 1891; State v. Blue, 17 Utah, 175, 53 Pac. 978, 1898; State v. Van Kuran, 25 Utah, 8, 69 Pac. 60, 1902. [Vt.] State v. Daley, 53 Vt. 442, 38 Am. Rep. 694, 1881. [Wash.] State v. Cushing, 14 Wash. 527, 53 Am. St. Rep. 883, 45 Pac. 527, 1896. [W. Va.] State v. Madison, 49 W. Va. 96, 38 S. E. 492, 1901. [Wis.] Conners y. State, 47 Wis. 527, 2 N. W. 1148, 1879; Jackson v. State, 81 Wis. 127, 51 N. W. 89, 1892. See note in 53 Am. Dec. 134. A fact in the case for the jury to weigh the same as any other fact in the case, when good character is proved; and must be considered for the purpose of determining whether it creates a reasonable doubt as to the guilt of the accused. [Cal.] People v. Ashe, 44 Cal. 288, 1872; People v. Raina, 45 Cal. 292, 18738; People v. Bell, 49 Cal. 485, 1875; People v. Doggett, 62 Cal. 27, 1882. [Del.] Daniels v. State, 2 Penn. (Del.) 596, 54 L.R.A. 286, 48 Atl. 196, 1901. [Or.] State v. Garrand, 5 Or. 222, 1874. —Like any other fact in the case, good character should be considered by the jury, and if therefrom a rea sonable doubt is suggested in the 540 CRIMINAL LAW. [§ 397 ment, when the punishment is to be fixed by the trial jury.® The evidence of good character of the defendant in such cases is to be regarded as a substantive fact, like any other fact tending to establish the defendant’s innocence,” to be regarded by both court and jury; and it seems that good character may be proved by negative as well as by positive evidence.” minds of the jury as to the guilt of the accused, it is their duty to ac- quit. Com. v. Leonard, 140 Mass. 473, 54 Am. Rep. 485, 4 N. E. 96, 7 Am. Crim. Rep. 593, 1886. In doubtful cases good character clearly established ought to have weight with the jury, but it ought not to prevail against positive testi- mony of creditable witnesses. Com. v. Hardy, 2 Mass. 303, 317, 1807. “Circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create a reason- able doubt in the minds of the jury, although without it other evidence would be convincing.” Field, J., in Com. v. Leonard, 140 Mass. 473, 54 Am. Rep. 485, 4 N. E. 96, 7 Am. Crim. Rep. 593, 1886. 8 Good character cannot be shown to reduce punishment where the guilt and its degree are determined by the unimpeached evidence of cred- itable witnesses. Rosenbaum v. State, 33 Ala. 354, 1859. —Time of examination of witness as to good character is during the course of trial, and not after the verdict is rendered. Reg. v. Mullins, 3 Cox, C. C. 526. 10 Com. v. Leonard, 140 Mass. 473, 54 Am. Rep. 485, 4 N. E. 96, 7 Am. Crim. Rep. 593, 1886 (indictment for receiving stolen property). “Evidence of good character is not a mere make-weight, thrown in to assist in the production of a re- sult that would happen at all events, but it is positive evidence, and may of itself, by the creation of a reason- able doubt, produce an acquittal.” Heine v. Com. 91 Pa. 145, 1879; Hanney v. Com. 116 Pa. 322, 9 Atl. 339, 1887; Com. v. Cleary, 185 Pa. 64, 8 L.R.A. 301, 19 Atl. 1017, 1890. 11 Weight of evidence of good character is to be left to the jury. Com. v. Leonard, 140 Mass. 473, 54 Am. Rep. 485, 4 N. E. 96, 7 Am. Crim. Rep. 593, 1886. “Originally evidence of good char- acter was not allowed to go to the jury when there was positive proof of the commission of the offense, for if one was seen to commit murder with deliberation, although he had borne an irreproachable character, he would yet be guilty.” Kilpatrick v. Com. 31 Pa, 198, 1858. The general rule of law now per- mits evidence of good character to be submitted to the jury in every case in a homicide case, no matter what may be the other evidence as to the crime. Kilpatrick v. Com. 31 Pa. 198, 1858. 12 First Nat. Bank v. Wolff, 79 Cal. 69, 21 Pac. 551, 748, 1889; Lemons v. State, 4 W. Va. 755, 6 Am. Rep. 293, 1870. See also numerous cases cited 3 Enc. Ev. pp. 43, 44. In First Nat. Bank v. Wolff, 79 Cal, 69, 21 Pac. 551, 748, the de- fendant sought to impeach the wit- ness Bennett; and the testimony of Stuart, called in rebuttal, was that he had known the witness Bennett for about twenty-seven years, and knew his reputation for truth, hones- ty, and integrity, and that it was good, and that he would believe him on oath; but this evidence of Stuart was stricken out because, on cross- examination, he stated that he had never heard the reputation of Ben- nett discussed, nor talked with any- one about it. On appeal it was held that the court erred in striking out the testimony of Stuart, because the witness was competent and his testi- mony admissible. Absurdity of rule against nezative testimony “becomes more apparent when it is remembered that the more unsullied and exalted the character, § 398] DEFENSES. 541 § 398. Ignorance or mistake of fact. In the early history of the common law such acts only were deemed criminal as had in them the vicious element of an unlawful intent, indicating a deviation from moral rectitude;* but this quality has ceased to be essential, and now acts which are unobjectionable in a moral view,” except in so far as being prohibited by law makes them so, constitute a considerable portion of the criminal code of every state.’ the less likely it is for it to be called in question, or spoken of with respect to truthfulness, and conse- quently more difficult to sustain than characters of far less worth, because the latter had been the subject of conversation and speculation in the community, while the former had not.” Lemons v. State, 4 W. Va. 755, 6 Am. Rep. 2938, 1870. 1As to intent as a necessary ele- ment in a criminal act, see supra, §§ 187, et seq. notes 11 L.R.A. 807— 815; 13 L.R.A. 134, and also full collection of authorities. 12 Cye. 156; 8 Am. & Eng. Enc. Law, 2d ed. p. 296. Ignorance of fact and absence of criminal intent are, as a general rule, defenses to a criminal charge; but a distinction is made between acts or omissions containing the element of turpitude and wrong in them- selves, and such as are made crim- inal by statutory enactment de- signed to promote the welfare of society. State v. Sasse, 6 S. D. 212, 55 Am. St. Rep. 834, 60 N. W. 853, 1894. Knowledge of certain facts being essential, ignorance of those facts constitutes a defense. Ulrich v. Com. 6 Bush, 400, 1869. Ignorance or mistake of fact may, in some cases, be admitted as an excuse, a8 when a man, intending to do w lawful act, does that which is unlawful; e. g., where one, being alarmed in the night by a cry that thieves have broken into his house, while searching for them in the dark, by mistake, kills an inmate of the house. This rule seems to hold good in all cases where the act, if done knowingly, would be malum in se. But when the statute commands that Under such statutes the act is expressly prohibited, an act be done or omitted, which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact, or state of things contemplated by the statute, will not excuse its violation. Ulrich v. Com. 6 Bush, 400, 1869. Selling liquors to persons of “known” intemperate habits. Smith v. State, 55 Ala. 1, 1876; Crabtree v. State, 30 Ohio St. 382, 1876. Whether criminal intent or guilty knowledge is a necessary element of a statutory offense is a matter of construction, to be determined from the language of the statute con- sidered with reference to the mani- fest purpose and design of the legis- lature. Com. ex rel. Allegheny Coun- ty v. Weiss, 189 Pa, 247, 11 L.R.A. 580, 283 Am. St. Rep. 182, 21 Atl. 10, 1891. 2Statute commanding act to be done or omitted, which act, in the absence of such statute, might have been done or omitted without cul- pability, ignorance of the fact, or state of things contemplated by the statute, will not constitute a defense to a prosecution for its violation. State v. Sasse, 6 S. D. 212, 55 Am. St. Rep. 834, 60 N. W. 858, 1894. One who does a thing forbidden by statute is liable to the punish- ment imposed, although he had no evil intention, unless the statute makes such intention an element of the crime. State v. Zichfeld, 23 Nev. 304, 34 L.R.A. 784, 62 Am. St. Rep. 800, 46 Pac. 802, 1896; State v. Ryan, 70 N. H. 196, 85 Am. St. Rep. 629, 46 Atl. 49, 1899. 3 [Mass.] Com. v. Waite, 11 Allen, 264, 87 Am. Dec. 711, 1865; Com. vy. Luscomb, 130 Mass. 42, 1880; Com. v. Evans, 132 Mass. 11, 1882; 542 CRIMINAL LAW. [§ 398 without reference to the intent or purpose of the party com- mitting it; * and is usually of the class in which the person com- Com. v. Huntley, 156 Mass. 236, 15 L.R.A. 839, 30 N. E. 1127, 1892. [Minn.] Butler v. Chambers, 36 Minn. 69, 1 Am. St. Rep. 638, 34 N. W. 308, 1886. [N. H.] Pierce v. State, 13 N. H. 536, 1848; State v. Clark, 28 N. H. 176, 61 Am. Dec. 611, 1854; State v. Freeman, 38 N. H. 426, 1859; Gage v. New Hampshire Electric Medical Soc. 63 N. H. 92, 56 Am. Rep. 492, 1884; State v. Campbell, 64 N. H. 402, 10 Am. St. Rep. 419, 13 Atl. 585, 1887; State v. Marshall, 64 N. H. 549, 1 L.R.A. 51, 15 Atl. 210, 1888. [N. J.] State, Shivers, Prosecutor, v. Newton, 45 N. J. L. 469, 1883. [N. Y.] People v. Cipperly, 101 N. Y. 634, 4 N. E. 107, 1886; People v. Arensberg, 105 N. Y¥. 123, 59 Am. Rep. 483, 11 N. KE. 277, 1886; People v. West, 106 N. Y. 293, 60 Am. Rep. 452, 12 N. E. 610, 1887. [Pa.] Powell v. Com. 114 Pa. 265, 60 Am. Rep. 350, 7 Atl. 913, 7 Am. Crim. Rep. 32, 1887. [R. I.] State v. Smyth, 14 R. I. 100, 51 Am. Rep. 344, 1883; State v. Groves, 15 R. I. 208, 2 Atl. 384, 1885. See infra, footnotes 17, 18, this section. 4Ignorance of fact or state of things contemplated by statute does not constitute a defense. Com. ex rel, Allegheny County v. Weiss, 139 Pa, 247, 11 L.R.A. 530, 23 Am. St. Rep. 182, 21 Atl. 10, 1891; State v. Sasse, 6 S. D. 212, 55 Am. St. Rep. 834, 60 N. W. 853, 1894. Such is the general rule where acts are not mala in se, but are made mala prohibita from motives of public policy, and not because of their moral turpitude, or the crim- inal intent with which they are com- mitted. State v. Swett, 87 Me. 99, 29 L.R.A. 714, 47 Am. St. Rep. 306, 32 Atl. 806, 1895; State v. Rogers, 95 Me. 94, 85 Am. St. Rep. 395, 49 Atl. 564, 1901; Com. v. Farren, 9 Allen, 489, 1864. “The principle is applied only in minor offenses, upon some ground of public policy for the protection of society against abuses which cannot be prevented under any more liberal rule.” State v. Swett, 87 Me. 99, 29 L.R.A. 714, 47 Am. St. Rep. 306, 32 Atl. 806, 1895. Statute making criminal doing act under particular circumstances; one voluntarily doing such act under those circumstances is chargeable with the criminal intent of doing it. [Eng.] Rex v. Woodfall, 5 Burr. 2661; Rex v. Dixon, 3 Maule & S. 11, 4 Campb. 12, 15 Revised Rep. 381. [U. S.] Reynolds v. United States, 98 U. S. 145, 25 L. ed. 244, 1878. [Fed.] affirming 1 Utah, 319, 1876; United States v. Baldridge, 11 Fed. 552, 1882. [Alta.] Stein v. State, 37 Ala, 123, 1861; Bain v. State, 61 Ala, 75, 1878; Mullens v. State, 82 Ala. 42, 60 Am. Rep. 731, 2 So. 481, 1886; Norris v. State, 87 Ala. 85, 6 So. 371, 1888. [Cal.] People v. Harris, 29 Cal. 679, 1866; People v. Ah Gee Yung, 86 Cal. 144, 24 Pac. 860, 1890. [Colo.] Bradley v. People, 8 Colo. 599, 9 Pac. 783, 1875. [Dak.] United States v. Adains, 2 Dak. 305, 9 N. W. 718, 1880. [Ga.] Patterson v. Hickey, 32 Ga. 156, 1861; Lawrence v. State, 68 Ga. 289, 1881. [Mass.] Com. v. Mash, 7 Met. 472, 1844; Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850; Com. v. Hersey, 2 Allen, 173, 1861; Com. v. Connelly, 163 Mass. 539, 40 N. E. 862, 1895. [Minn.] State v. Lautenschlager, 22 Minn. 514, 1876; State v. Kortgaard, 62 Minn. 7, 64 N. W. 51, 1895. ([Miss.] Holman v. Murdock, 34 Miss. 275, 1857; Bar- cus v. State, 49 Miss. 17, 19 Am. Rep. 1, 1 Am. Crim. Rep. 249, 1873. [Nev.] State v. McGinnis, 6 Nev. 109, 1870; State ~. Zichfeld, 23 Nev. 304, 34 L.R.A. 784, 62 Am. St. Rep. 800, 46 Pac. 802, 1896. [N. J.] State v. Malloy, 34 N. J. L. 410, 1871. [N. Y.] Fiedler v. Darrin, 50 N. Y. 437, 1872; Miller v. People, 5 Barb. 203, 1849; Hamilton v. Peo- ple, 57 Barb. 625, 1870; People v. Batting, 49 How. Pr. 392, 1875. [N. C.] State v. Boyett, 32 N. C. (10 Ired. L.) 336, 1849; State v. Presnell, 34 N. C. (12 Ired. L.) 108, 1851; State v. Hart, 51 N. C. (6 § 398] DEFENSES. 543 mitting it is under no obligation to act, unless he can do so lawfully, and it is no defense that the person acted honestly and in good faith, under a mistake of fact,’ for he is bound to know the fact as well as the law, and he acts at his peril.® Under such statutes guilty knowledge is not one of the essential ingredients of the offense.” Jones, L.) 389, 1859; State v. King, 86 N. C. 603, 1882; State v. Skid- more, 87 N. C. 509, 1882; State v. Voight, 90 N. C. 741, 1884; State v. Smith, 93 N. C. 516, 1885. [Va.] Hill v. Com. 2 Gratt. 594, 1845. [Wash.] State v. Anderson, 5 Wash. 450, 81 Pac. 969, 1892. See also 7 Enc, Ev. pp. 583, et seq.; and also note in 11 L.R.A. 810. 5 Liquors — Adulterated or intox- icating — Ignorance of adulteration or intoxicating character is no de- fense to a prosecution for illegal sale of. [Eng.] Reg. v. Woodrow, 15 Mees. & W. 404; 2 New Sess. Cas. 346, 16 L. J. Mag. Cas. 122, [Conn.] Barnes v. State, 19 Conn. 398, 1849. [Mass.] Com. v. Boynton, 2 Allen, 160, 1861; Com. v. Farren, 9 Allen, 489, 1864; Com. v. Nichols, 10 Allen, 199, 1865; Com. v. Smith,.103 Mass. 444, 1873. [N. Y.] People v. Zeiger, 6 Park. Crim. Rep. 355. [R. IL] State v. Smith, 10 R. I. 258, 1872. —Sale to minors — Honest Be- lief that vendee is of full age does not constitute a defense. [Fed.] United States v. Dodge, Deady 186, Fed. Cas. No. 14,974, 1866. [Conn.] Barnes v. State, 19 Conn. 398, 1849. [Ul] McCutcheon v. People, 69 Il. 601, 1 Am. Crim. Rep. 470, 1873; Farmer v. People, 77 Ill. 322, 1875. [Ky.] Ulrich v. Com. 6 Bush, 400, 1869. [Mass.] Com. v. Emmons, 98 Mass. 6, 1867; Com. v. Goodman, 97 Mass. 117, 1867; Com. v. Lat- tinville, 120 Mass. 386, 1876; Com. v. Finnegan, 124 Mass. 324, 1878. [N. C.] State v. Hause, 71 N. C. 518, 1874. [W. Va.] State v. Cain, 9 W. Va. 572, 1874. [Wis.] State v. Hartfiel, 24 Wis. 60, 1869. —Sale of intoxicating liquors to minors being prohibited by statute in the interests of the general wel- fare of society, ignorance of the age Thus, ignorance or mistake of fact of the person to whom the liquor is sold furnishes no excuse or de- fense in a prosecution for illegal sale, irrespective of good faith and honest intention; the mere fact of the il- legal selling constitutes the offense. State v. Sasse, 6 S. D. 212, 55 Am. St. Rep. 834, 60 N. W. 853, 1894. See [Ark.] Redmond v. State, 36 Ark. 58, 38 Am. Rep. 24, 1880. [Conn.] State v. Kinkead, 57 Conn. 178, 17 Atl. 855, 1889. [Ill] Mc- Cutcheon v. People, 69 Ill. 602, 1 Am. Crim. Rep. 471, 1873. [Ind.] State v. Clottu, 33 Ind. 409, 1870. [lowa] State v. Coenan, 48 Iowa, 567, 1878. [Mass.] State v. Finne- gan, 124 Mass. 324, 1878. [Mich.] People v. Roby, 52 Mich. 577, 50 Am. Rep. 270, 18 N. W. 365, 1884. [Mo.] State v. Bruder, 35 Mo. App. 475, 1889. [N. C.] State v. Lawrence, 97 N. C. 492, 2 S. E. 367, 1887. [W. Va.] State v. Cain, 9 W. Va. 559, 1876. [Wis.] State v. Hartfiel, 24 Wis. 60, 1869. See full discussion supra, §§ 108- 113. Compare: Farrell v. State, 32 Ohio St. 456, 30 Am. Rep. 614, 1877. 6Ignorance or mistake of fact as to age of girl, under statute de- nouncing sexual offenses against females below a specified age. See note in 25 L.R.A.(N.S.) 661. Ignorance that parties to marriage are under age is no defense to a prosecution for officiating at the marriage. Beckham v. Nacke, 56 Mo. 546, 1874. See note in 29 L.R.A.(N.S.) 504. Knowledge of age of person as element of offense of permitting in- fant to remain in dance hall. See note in 29 L.R.A.(N.S.) 331. 7 [Mass.] Com. v. Uhrig, 138 Mass. 492, 5 Am. Crim. Rep. 323, 1885; Com. v. Savery, 145 Mass. 212, 13 N. E. 611, 1887. [Nev.] State v. 544 CRIMINAL LAW. [§ 398 a in prosecutions for violations of statute prohibiting abducting, seducing, by violating girls under given age, a mistake as to the age of the girl, is no defense.® And in a prosecution for adul- tery, the fact of ignorance that the woman was married con- stitutes no defense.’ The same rule of law applies in prose- cutions for betting in a gaming house, believing it to be li- censed;*° for bigamy, belief that spouse is dead (within statu- Zichfeld, 23 Nev. 304, 34 L.R.A. 784, 62 Am. St. Rep. 800, 46 Pac. 802, 1896. [N. H.] State v. Campbell, 64 N. H. 402, 10 Am. St. Rep. 419, 13 Atl. 585, 1887; State v. Cornish, 66 N. H. 329, 11 L.R.A. 191, 21 Atl. 180, 1890; State v. Ryan, 70 N. H. 196, 85 Am. St. Rep. 629, 46 Atl. 49, 1899. [R. I.] State v. Smith, 10 R. I. 258, 1872; State v. Hughes, 16 R. I. 403, 16 Atl. 911, 1889. Statute making act indictable, ir- respective of guilty knowledge; ig- norance of the facts constitutes no defense. [Eng.] Reg. v. Gibbons, 12 Cox, C. C. 237; Reg. v. Woodrow, 15 Mees. & W. 404, 2 New Sess. Cas. 346, 16 L. J. Mag. Cas. N. S. 122; Reg. v. Bishop, L. R. 5 Q. B. Div. 259, 49 L. J. Mag. Cas. N. S. 45, 42 L. T. N. S. 240, 28 Week. Rep. 475, 14 Cox, C. C. 404, 44 J. P. 330 (receiving person as lunatic honestly believing him to be sane). {Fed.] United States v. Leathers, 6 Sawy. 17, 11 Chicago Leg. News, 354, Fed. Cas. No. 15,581, 1879; United States v. Curtis, 16 Fed. 184, 1883. [Conn.] Myers v. State, 1 Conn. 502, 1816; Barnes v. State, 19 Conn, 398, 1849; State v. Turner, 60 Conn. 222, 22 Atl. 542, 1891. [Idaho] People v. Page, 1 Idaho, 189, 1868. [Kan.] State v. Brown, 38 Kan. 390, 16 Pac. 259, 8 Am. Crim. Rep. 165, 1888. [Mass.] Com. v. Elwell, 2 Met. 190, 35 Am. Dec. 398, 1840; Com. v. Mash, 7 Met. 472, 1844; Com. v. Boynton, 2 Allen, 160, 1861; Com. v. Farren, 9 Allen, 489, 1864; Com. v. Waite, 11 Allen, 264, 87 Am. Dec. 711, 1865; Com. v. Ray- mond, 97 Mass. 567, 1867; Thomp- son v. Thompson, 114 Mass. 566, 1874; Com. v. Huntley, 156 Mass. 236, 15 L.R.A. 839, 30 N. E. 1127, 1892; Com. v. Connelly, 163 Mass. 539, 40 N. E. 862, 1895. [Nev.] State v. Zichfeld, 23 Nev. 304, 34 L.R.A, 784, 62 Am. St. Rep. 800, 46 Pac. 802, 1896, overruling State v. Gardner, 5 Nev. 312, 1870. [N. H.] State v. Cornish, 66 N. H. 329, 11 L.R.A, 191, 21 Atl. 180, 1890. [Okla.] Garver v. Territory, 5 Okla. 342, 49 Pac. 470, 1897. [Wis.] State ex rel. Milwaukee v. Newman, 96 Wis. 258, 71 N. W. 438, 1897. See note in 11 L.R.A. 810. Compare: Reg. v. Turner, 9 Cox, C. C. 145; Reg. v. Horton, 11 Cox, C. C. 670. As to allegation of guilty knowl- edge, see note in 11 L.R.A. 191. As to criminal intent or guilty knowledge not being a necessary ele- ment in a prosecution for crimes mala prohibita, see full collection of authorities in 12 Cyc. 157; 8 Am. & Eng. Enc. Law, 2d ed. 297; 7 Ene. Ev. 583, passim. 8 Reg. v. Olifer, 10 Cox, C. C. 402; Reg. v. Booth, 12 Cox, C. C. 231; Reg. v. Prince, L. R. 2, C. C. 154, 44 L. J. Mag. Cas. N. S. 122, 32 L. T. N. 8. 700, 24 Week. Rep. 76, 13 Cox, C. C. 138, 1 Am. Crim. Rep. 1. [Iowa] State v. Ruhl, 8 Iowa, 447, 1859; State v. Newton, 44 Iowa, 45, 1876. 9 [Me.] State v. Goodenow, 65 Me. 30, 1 Am. Crim. Rep. 42, 1876. [Mass.] Com. v. Elwell, 2 Met. 190, 35 Am. Dec. 398, 1840. [Tex.] Fox v. State, 3 Tex. App. 329. 30 Am. Rep. 144, 1877. As to effect of ignorance of mar- riage of other party on adultery, see notes in 83 Am. Dec. 655, and 18 L.R.A.(N.S.) 528. 10 Schuster v. State, 48 Ala. 199, 1872. § 398] DEFENSES. 545 tory limitation) ;™ or that first marriage was void,” or that it had been dissolved by contract ; * for carrying illegal number of persons on vessel; ’* in libel, ignorance of contents of libel; * for marrying minors, belief that they were of full age;** for selling adulterated milk,” or any other food product,™ or for selling a calf under statutory age; or for selling intoxicating 11Com. v. Mash, 7 Met. 472, 1844; Com. v. Thompson, 6 Allen, 591, 83 Am. Dec. 653, 1863; Com. v. Thomp- son, 11 Allen, 23, 87 Am. Dec. 685, 1865; State v. Zichfeld, 23 Nev. 504, 34 L.R.A. 784, 62 Am. St. Rep. 800, 46 Pac. 802, 1896. As to belief first wife dead, see notes in 93 Am. Dec. 252, and 30 Am. Rep. 617. ' Bona fide and reasonable belief first spouse dead when contracting second marriage will not constitute a defense. Com. v. Hayden, 163 Mass. 453, 28 L.R.A. 318, 47 Am. St. Rep. 468, 40 N. E. 846, 9 Am. Crim. Rep. 408, 1895. 12 Medrano v. State, 32 Tex. App. 214, 40 Am. St. Rep. 775, 22 S. W. 684, 1893. 18 State v. Zichfeld, 23 Nev. 304, 34 L.R.A. 784, 62 Am. St. Rep. 800, 46 Pac. 802, 1896. ' 14State v. Baltimore & S. Steam Co. 13 Md. 181, 1858. Compare: Duncan v. State, 7 Humph. 148, 1846. 15 People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528, 1 Am. Crim. Rep. 107, 1872; Curtis v. Mussey, 6 Gray, 261, 1856. 16 Beckham v. Nacke, 56 Mo. 546, 1874. See note in 29 L.R.A.(N.S.) 504. 17 [Eng.} Reg. v. Woodrow, 15 Mees. & W. 404, 2 New. Sess. Cas. 346, 16 L. J. Mag. Cas. N. 8. 122. [Mass.] Com. v. Farren, 9 Allen, 489, 1864; Com. v. Waite, 11 Allen, 264, 87 Am. Dec. 711, 1865. [R. I.] State v. Smith, 10 R. I. 258, 1872. 18 Adulterated foods being pro- hibited by statute, the seller of such articles takes upon himself the re- sponsibility of knowing that they are not adulterated. [Me.] State v. Rogers, 95 Me. 94, 85 Am, St. Rep. 395, 49 Atl. 564, 1901. [Mass.] Crim. L. Vol. L—85. . Com. v. Farren, 9 Allen, 489, 1864. [R. L] State v. Smith, 10 R. I. 258, 1872. : Statute directed against imposi- tion in selling or exposing for sale artificial compounds resembling nat- ural food products; it is no defense that the article sold or exposed for sale is free from impurity and un- wholesome ingredients, and healthy and nutritious as an article of food. [Mass.] Com. v. Evans, 132 Mass. 11, 1882. [N. H.] State v. Camp- bell, 64 N. H. 402, 10 Am. St. Rep. 419, 13 Atl. 585, 1887. [N. Y.] Peo- ple v. Cipperly, 101 N. Y. 634, 4 N. E. 107, 1886; People v. West, 106 N. Y. 293, 60 Am. Rep. 452, 12 N. E. 610, 1887. [R. I.] State v. Smyth, 14 R. I. 100, 51 Am. Rep. 344, 1883. —Constitutionality of statutes pro- hibiting manufacture and sale of certain articles, for the prevention of fraud, the protection of public morals, and the promotion of sound public policy. [U. S.] Powell v. Pennsylvania, 127 U. 8. 678, 32 L. ed. 253, 8 Sup. Ct. Rep. 992, 1257, affirming in 114 Pa. 265, 60 Am. Rep. 350, 7 Atl. 913, 7 Am. Crim. Rep. 32. [Me.] State v. Rogers, 95 Me. 94, 85 Am. St. Rep. 395, 49 Atl. 564, 1901. [Mass.] Com. v. Huntley, 156 Mass. 236, 15 L.R.A. 839, 30 N. HK. 1127, 1892. [Mo.] State v. Addington, 77 Mo. 110, 1882. [N. H.] State v. Marshall, 64 N. H. 549, 1 L.R.A. 51, 15 Atl. 210, 1888. [N. J.] State, Waterbury, Prosecutor, v. Newton, 50 N. J. L. 534, 2 Inters. Com. Rep. 63, 14 Atl. 604, 1888. [N. Y.] People v. Arens- berg, 105 N. Y. 123. 59 Am. Rep. 483, 11 N. E. 279, 1887. 19 Com. v. Raymond, 97 Mass. 567, 1867. 546 CRIMINAL LAW. [§ 398 liquors*° to persons of intemperate habits *! or to minors; ® or for selling naphtha; * or oleomargarin; ** or for trading in In- dian country without a license;* or for usurpation of office,” —ignorance of fact and honest belief will not constitute a defense. § 399. Ignorance or mistake of law. Neither ignorance of the law’ nor the fact that in the act complained of accused 20Com. v. Boynton, 2 Allen, 160, 1861. 21[Conn.] Barnes v. State, 19 Conn. 398, 1849. [Ill] Farmer v. People, 77 Ill. 322, 1875. [Minn.] State v. Heck, 23 Minn. 549, 1877. [Ohio] Crabtree v. State, 30 Ohio St. 382, 1876. 22 Incumbent on vendor of liquor to know that his customer labors under no disability, as it is for him to know the law, and his ignorance of either will not excuse him. [Ill.] Farmer v. People, 77 Ill. 322, 1875. [Ky.] Ulrich v. Com. 6 Bush, 400, 1869. [Wis.] State v. Hartfiel, 24 Wis. 60, 1869. “Bound to know whether such per- son,” the vendee, “is a minor or not.” Farmer v. People, 77 Ill. 322, 1875. Selling liquor to a minor, though innocently ignorant of the fact; a party incurs the penalty of the law prohibiting such sale. State v. Sasse, 6 S. D. 212, 55 Am. St. Rep. 834, 60 N. W. 853, 1894. 23 Hourigan v. Nowell, 110 Mass. 470, 1872; Com. v. Wentworth, 118 Mass, 441, 1875. 24State v. Rogers, 95 Me. 94, 85 Am. St. Rep. 395, 49 Atl. 564, 1901. [N. H.] State v. Marshall, 64 N. H. 549, 1 L.R.A. 61, 15 Atl. 210, 1888. [N. J.] State, Waterbury, Prosecutor, v. Newton, 50 N. J. L. 5384, 2 Inters. Com. Rep. 63, 14 Atl. 604, 1888. People v. Arensberg, 105 N. Y. 123, 59 Am. Rep. 483, 11 N. E. 279, 1887. See note in 1 L.R.A. 51. In prosecution for sale of oleo- margarin, it is not incumbent on the state to show knowledge on part of the accused, nor an intention to de- ceive the purchaser. State v. Rog- ers, 95 Me. 94, 85 St. Rep. 395, 49 Atl. 564, 1901. As a statute prohibiting the fur- nishing of oleomargarin in place of butter. State v. Ryan, 70 N. H. 196, 85 Am. St. Rep. 629, 46 Atl. 49, 1899. As to the right of the state to regulate the manufacture and sale of oleomargarin, see note in 85 Am. St. Rep. 400. 25 United States v. Leathers, 6 Sawy. 17, Fed. Cas. No. 15,581, 1879. 26 [Ala.] State v. Hallett, 8 Ala. 159, 1845. [N. C.] State v. Hart, 51 N. C. (6 Jones, L.) 389, 1859. [Tenn.] McGuire v. State, 7 Humph. 54, 1846. 1 [Eng.] Rex v. Esop, 7 Car. & P. 456; R. v. Thomas, 1 Russell, Crimes, 38d ed. 614. [Fed.] The Joseph, 8 Cranch, 451, 3 L. ed. 621, 1814, af- firming 1 Gall. 545, Fed. Cas. No. 7,533, 1818; Barlow v. United States, 7 Pet. 404, 8 L. ed. 728, 1833, affirm- ing 2 Paine, 54, Fed. Cas. No. 15,037, 1830; The Ann, 1 Gall. 62, Fed. Cas. No. 397, 1812; Wilson v. The Mary, Gilpin, 31, Fed. Cas. No. 17,823, 1828. [Cal.] People v. O’Brien, 96 Cal. 171, 31 Pac. 45, 1892. [Conn.] Stow v. Converse, 3 Conn. 325, 8 Am. Dec. 189, 1820. [Ind.] Winehart v. State, 6 Ind. 30, 1854. [Iowa] State v. O'Neil, 147 Iowa, 518, 33 L.R.A. (N.S.) 788, 126 N. W. 454, 1910. [Me.] State v. Goodenow, 65 Me. 32, 1 Am. Crim. Rep. 42, 1876. [Md.] Grumbine v. State, 60 Md. 355, 1883. [Miss.] Whitton v. State, 37 Miss. 379, 1859. [N. Y.] People v. Powell, 63 N. Y. 88, 1875; People v. Brooks, 1 Denio, 457, 483 Am. Dec. 704, 1845; Smith v. Brown, 1 Wend. 231, 1828. {N. C.] State v. Presnell, 34 N. C. (12 Ired. L.) 108, 1851; State v. Me- Intire, 46 N. C. (1 Jones, L.) 1, 59 Am. Dec. 566, 1853; State v. Downs, 116 N. C. 1064, 21 S, E, 689, 1895. § 399] DEFENSES. 547 acted on the advice of counsel? will relieve from liability. [S. C.] State v. Williams, 36 8S. C. 493, 15 S. E. 554, 1892. [S. D.] Ex parte Nesson, 25 S. D. 49, 27 L-R.A. (N.S.) 872, 125 N. W. 124, 1910. [Tenn.] Atkins v. State,'95 Tenn. 474, 32 S. W. 391, 10 Am. Crim. Rep. 419, 1895. [Tex.] McCallister v. State, 55 Tex. Crim. Rep. 392, 116 S. W. 1154, 1909. [Utah] Skeen v. Craig, 31 Utah, 20, 86 Pac. 487, 1906. [Vt.] Pettes v. Bank of Whitehall, 17 Vt. 485, 1845. Ignorance of the law as an excuse for crime, as a defense in a prosecu- tion therefor, is treated supra, §§ 102-106; see also supra, § 85, footnote 1; 12 Cyc. 155; 8 Am. & Eng. Enc. Law, 2d ed. 297; notes in 10 Am. Dec. 323-328; 15 Am. Rep. 171-184; 55 Am. St. Rep. 514; and 11 L.R.A. 810. As to distinction between igno- tance and mistake of law, see note in 23 Am. Dec. 164, 165. —A defense in those cases where specific intent essential to the crime charged. [Eng.] Rex. v. Hall, 3 Car. & P. 409; [Iowa] State v. O’Neil, 147 Iowa, 513, 33 L-R.A.(N.S.) 788, 126 N. W. 454, 1910. [Mass.] Com. 8 Gray, 492, 1857. [Mich.] People v. Husband, 36 Mich. v. Stebbins, 306, 2 Am. Crim. Rep. 111, 1877. —In mitigation of punishment, the fact of ignorance of the law violated may be considered. See Rex v. Esop, 7 Car. & P. 456. —Contempt, in proceedings to punish for a, ignorance of the law ig no defense, except in those cases where the criminality or guilt was the intent with which the act was done. Carr v. District Ct. 147 Iowa, 663, 126 N. W. 791, 1910. Unconstitutionality of law be- lieved in good faith constitutes no defense to a prosecution for its vio- lation. State v. Simmons, 143 N. C. 613, 56 S. C. 701, 1907. 2[Fed.] United States v. Reder, 69 Fed. 965, 1895. [N. C.] State v. Dickens, 2 N. C. (1 Hayw.) 406, 1796; State v. Downs, 116 N. C. 1064, 21 S. E. 689, 1895; State v. McLean, 121 N. C. 589, 42 L.R.A. 721, 28 S. E. 140, 1897. [Pa.] Weston v. Com. 111 Pa. 251, 2 Atl. 191, 6 Am. Crim. Rep. 486, 1885; Com. ex rel. Allegheny County v. Weiss, 13y Pa. 247, 11 L.R.A. 530, 23 Am. St. Rep. 182, 21 Atl. 10, 1891. [S. D.] State v. Sasse, 6 S. D. 212, 55 Am. St. Rep, 834, 60 N. W. 853, 1894. [Tex.] Gallaher v. State, 28 Tex. App. 247, 12 8. W. 1087, 1809; Ward v. State, 42 Tex. Crim. Rep. 435, 60 S. W. 757, 1901; Smith v. State, 46 Tex. Crim. Rep. 267, 108 Am. St. Rep. 991, 81 S. W. 712, 936, 1904. See this matter fully discussed supra, § 379. : Ignorance in either counsel or client is not encouraged by the law. State v. Dickens, 2 N. C. (1 Hayw.) 406, 1796. “If ignorance of counsel would ex- cuse violations of the criminal law, the more ignorant counsel could manage to be the more valuable and sought for, in many cases, would his advice be.” Mr. Justice Clark in State v. Downs, 116 N. C. 1064, 21 S. E. 689, 1895. Vicarious ignorance of counsel can excuse no one. State v. Boyett, 32 N. C. (10 Ired. L.) 336, 1849. 3 [U. S.] Barlow v. United States, 7 Pet. 404, 8 L. ed. 728, 1833, affirm- ing 2 Paine, 54, Fed. Cas. No. 15,037, 1830. [Cal.] People v. O’Brien, 96 Cal. 171, 31 Pac. 45, 1892. [N. C.] State v. McIntire, 46 N. C. (1 Jones, L.) 1, 59 Am. Dec. 566, 1853. [Tenn.] Atkins v. State, 95 Tenn. 474, 82 S. W. 391, 10 Am. Crim. Rep. 419, 1895. Ignorance of authority of officer, under the law, seeking to arrest, no defense to an indictment for killing the officer knowing deceased to be such. State v. Williams, 36 S. C. 493, 15 S. E. 554, 1891. Ignorance or mistake of fact, as well as ignorance of law, will not constitute a defense. See supra, § 398. Mistaken construction of law leading to honestly violating 1t, no defense. Stow v. Converse, 3 Conn. 325, 8 Am. Dec. 189, 1820. CRIMINAL LAW. [g 399 548 This may sometimes be a hard rule,* but it is an inflexible one, and lies at the foundation of the administration of justice.® There is no telling to what extent, if admissible, the plea of ignorance of the law would be carried or the degree of the em- _barrassment that would be introduced into every trial by con- flicting evidence upon the question of ignorance.® § 400. Immunity for furnishing evidence. Every person accused of a crime is surrounded by constitutional? and statu- tory ® safeguards, among which is the privilege of not being com- pelled to give evidence against himself; * but in the absence of such bar, an accused person testifying against a codefendant has no legal right to be discharged, and cannot plead the fact of such testimony in bar to a subsequent prosecution.* But, on the ground of public policy, the state may enter into a contract with one accused of a crime for his exemption from prosecution and punishment therefor, if he will honestly and fairly and fully 4State v. McLean, 121 N. C. 589, 42 L.R.A. 721, 28 S. E, 140, 1897. 5 State v. Boyett, 82 N. C. (10 Ired. L.) 336, 1849; State v. McLean, 121 N. C. 589, 42 L.R.A. 721, 28 8S. E. 140, 1897. 6 Id. 1Criminal matters, and not civil, included. [Fed.] Ex parte Burr, 9 Wheat. 529, 6 L. ed. 152, 1824; Ex parte Secombe, 19 How. 9, 15 L. ed. 565, 1857; Ex parte Bradley, 7 Wall. 364, 19 L. ed. 214, 1869; Ex parte Wall, 107 U. S. 265, 27 L. ed. 552, 2 Sup. Ct. Rep. 569, 1883; Sharon v. Hill, 24 Fed. 726, 1885; Ex parte Cole, 1 McCrary, 405, Fed. Cas. No. 2,973, 1879. [Ky.] Baker’s Case, 10 Bush, 592, 1874; Re Woolley, 74 Ky. 95, 1874. [Mich.] Mill’s Case, 1 Mich. 392, 1850. [N. Y.] Anony- mous, 86 N. Y. 571, 1881. [Okla.] Re Biggers, 24 Okla, 842, 25 L.R.A. 622, 104 Pac. 1083, 1909. [Pa.] Aus- tin’s Case, 5 Rawle, 191, 28 Am. Dec. 657, 1835; Serfass’s Case, 116 Pa, 455, 9 Atl. 674, 1887. [Tenn.] Smith v. State, 1 Yerg. 228, 1829; Re Henderson, 88 Tenn. 5381, 13 S. W. 413, 1890. [Tex.] Jackson v. State, 21 Tex. 668, 1858. [Wash.] State ex rel. Mackintosh v. Ross- man, 53 Wash. 1, 21 L.R.A.(NS.) 821, 101 Pac. 357, 17 A. & E. Ann. Cas. 625, 1909. [W. Va.] State v. McClaugherty, 33 W. Va. 250, 10 S. KE. 407, 1889. 2In view of the constitutional pro- vision, a statutory enactment com- pelling the giving of testimony by one accused must afford absolute im- munity against future prosecution for the offense to which the testi- mony relates. Counselman v. Hitch- cock, 142 U. 8. 547, 35 L. ed. 1110, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195, 1892, reversing 3 Inters. Com. Rep. 326, 44 Fed. 268, 1890. See Brown v. Walker, 161 U. S. 691, 40 L. ed. 819, 5 Inters. Com. Rep. 369, 16 Sup. Ct. Rep. 644, 1896, affirming 70 Fed. 46, 1895. Privilege claimed at time of testi- fying not necessary to make plea available as a defense. Hammond Lumber Co. v. Sailors Union, 167 Fed. 809, 1909. Retroactive effect not given; fu- ture prosecutions only guaranteed against. Re Kittle, 180 Fed. 946, 1910. 8 See this subject fully discussea and authorities cited in 14 Enc, Ev. 673, 688. 4See full treatment and author- ities in 12 Cyc. 162. § 400] DEFENSES. 549 make a disclosure of a crime against a codefendant or codefend- ants,” whether the latter is convicted or not.® 5 Disclosures partial and testimony corrupt; the accused is not entitled to immunity from prosecution and punishment, under his contract. Camron v. State, 32 Tex. Crim. Rep. 180, 40 Am. St. Kep. 768, 22 S. W. 682, 1893. No promise made by state, person accused giving evidence on ‘trial of confederate cannot plead that fact in bar. Martin v. State, 136 Ala. 32, 34 So. 205, 1903; Com. v. Plummer, 147 Mass. 601, 18 N. E. 567, 1888. 6 [Eng.] Rex v. Rudd, Cowp. pt. 1, p. 334, 1 Leach, C. L. 115. [Fed.] Heike v. United States, 217 U. S. 423, 54 L, ed. 821, 30 Sup. Ct. Rep. 539, 1910. [IN. Y.] People v. Whip- ple, 9 Cow. 707, 1826. [Tex.] Cam- ron v. State, 32 Tex. Crim. Rep. 180, 40 Am. St. Rep. 763, 22 S. W. 682, 1893; Griffin v. State, 43 Tex. Crim. Rep. 428, 66 S. W. 782, 1902; Young v. State, 45 Tex. Crim. Rep. 202, 75 S. W. 28, 1903; Taylor v. State, 50 Tex. Crim. Rep. 183, 95 S. W. 119, 1906. See also 4 Bl. Com. 330. As to granting immunity for turn- ing state’s evidence, see note in 40 Am. St. Rep. 767-775. As to agreements concerning per: sons accused of crime turning state’s evidence, see notes in 31 Am. Rep. 522-526, and 40 Am. St. Rep. 767— 775. From the earliest times it has been found necessary, for the detec- tion and punishment of crime, for the state to resort to the criminals themselves for testimony with which to convict their confederates in crime. While such a course offers a premium to treachery, and some- times permits the more guilty to es- cape, it tends to prevent and break up combinations by making crimin- als suspicious of each other, and it leads to the punishment of guilty persons who would otherwise escape. 1 Hale, P. C. 305; [Eng.] Rex. v. Rudd, Comp. pt. 1, p. 334, 1 Leach, C. L. 115. [Fed.] United States v. Lee, 4 McLean, 103, Fed. Cas. No. 15,588, 1846. [N. Y.] People v. The immunity Whipple, 9 Cow. 707, 1826. [Tex.] Camron v. State, 32 Tex. Crim. Rep. 180, 40 Am. St. Rep. 763, 22 S. W. 682, 1893. The government is bound in honor, under the circumstances, to carry out the understanding or agreement by which an accused testified as a wit- ness, and admitted, in so doing, his own turpitude. Public policy and the great ends of justice require this of the court. If the district attorney shall fail to enter a nolle prosequi on the indictment, the court will con- tinue the cause until an application can be made for a pardon. United States v. Lee, 4 McLean, 103, Fed. Cas. No. 15,588, 1846. See People v. Whipple, 9 Cow. 707, 1826. The only difficulty in the matter seems to be as to the method in which the estate may extend a prom- ised and earned immunity. The com- mon practice in American courts is to commit the question of receiving or rejecting an accomplice, and the further question of his immunity from punishment, solely to the dis- cretion of the prosecuting officer, who acts by nolle prosequi. In those states where a nolle prosequi can be entered with the consent of the court only, the court must, of course, exer- cise supervision over the question. See [Cal] People v. Bruzzo, 24 Cal. 41, 1864. [N. J.] State v. Gra- ham, 41 N. J. L. 15, 32 Am. Rep. 174, 1879. [N. C.] State v. Lyon, 81 N. C. 600, 31 Am. Rep. 518, 1879. [Tex.] Barrara v. State, 42 Tex. 260, 1875; Williams v. State, 42 Tex. 392, 1875; Wright v. State, 43 Tex. 170, 1875; Camron v. State, 32 Tex. Crim. Rep. 180, 40 Am. St. Rep. 763, 22 8. W. 682, 1893. In some courts it is held that where the accomplice is convicted be- fore being made a witness by the state, after having made a full con- fession, he has a claim for a judicial recommendation for pardon, which cannot be withheld without violating an established rule of practice. [Fed.] United States v. Ford, 99 U. S. 594, 25 L. ed. 399, 1879. [N. J.J CRIMINAL LAW. [§ 400 550 and protection which may be promised from the consequences of crime on condition of a full disclosure and readiness to testify are not a matter of right, but rest in the last resort on the sound judicial discretion of the court having final jurisdiction to sentence, and cannot therefore be pleaded in bar.” When such promises are made by the public prosecutor, or with his author- ity, the court will see that due regard is paid to them, and that the public faith which is pledged by him is duly kept. But promises of immunity made by a police officer or other person without authority from the prosecuting officer cannot be plead- ed in bar to an indictment and prosecution of one turning state’s evidence.® State v. Graham, 41 N. J. L. 15, 32 Am. Rep. 174, 1879. [N. C.] State v. Lyon, 81 N. C. 600, 31 Am. Rep. 518, 1879. [Tex.] Camron v. State, 32 Tex. Crim. Rep. 180, 22 S. W. 682, 40 Am. St. Rep. 763, 1893. See note in 30 Am. Rep. 518. Agreement to dismiss proceedings in another case, for another and a distinct offense, is not enforceable, and constitutes no bar to a subse- quent prosecution. Tullis v. State, 41 Tex. Crim. Rep. 87, 52 S. W. 83, 1899. Breaking of agreement by accused, in refusing to testify or to testify fully and truthfully; plea of bar cannot be set up. United States v. Hinz, 35 Fed. 272, 1888; Neeley v. State, 27 Tex. App. 324, 11 S. W. 376, 1889; Heinzman v. State, 34 ‘Tex. Crim. Rep. 76, 29 S. W. 482, 1895; Nicks v. State, 40 Tex. Crim. Rep. 1, 48 S. W. 186, 1898. Testifying after conviction; rule under statute does not apply. Peo- ple ex rel. Hunt v. Lane, 196 N. Y. 520, 89 N. E. 1108, 1909, affirming 132 App. Div. 406, 116 N. Y. Supp. 990, 1909. See Re Kittle, 180 Fed. 946, 1910. Testifying before grand jury; im- munity from prosecution for. Sand- wich v. State, 137 Ala, 85, 34 So. 620, 1903. —Another witness testifying to same matter before grand jury does not affect right to immunity. Sand- wich v. State, 137 Ala. 85, 34 So. 620, 1903. —Immunity under contract for testifying before grand jury depends upon whether evidence given or doc- uments furnished become important as a connecting link in case against others. United States v. Heike, 175 Fed. 852, 1910. 7 [Eng.] Rex v. Rudd, Cowp. pt. 1, p. 331, 1 Leach, C. L. 115. [Mass.] Com. v. St. John, 173 Mass. 566, 73 Am. St. Rep. 321, 54 N. E. 254, 1893. [N. J.] State v. Graham, 41 N. J. L. 15, 32 Am. Rep. 174, 1879. [N. C.] State v. Moody, 69 N. C. 529, 1873. [Wis.] Wright v. Rindskopf, 43 Wis. 344, 1877. 8 Com. v. St. John, 173 Mass. 566, 73 Am. St. Rep. 321, 54 N. E. 254, 1893. Agreement without advice or con- sent of court cannot be enforced, and is no bar to a subsequent prosecu- tion. [Mass.] Com. v. St. John, 173 Mass. 566,73 Am. St. Rep. 321,54 N. E. 254, 1893. [Mo.] State v. Lopez, 19 Mo. 254, 1853; State v. Guild, 149 Mo, 370, 73 Am. St. Rep. 395, 50 S. W. 909, 1899. [Neb.] Whitney v. State, 53 Neb. 287, 73 N. W. 696, 1898. [Tex.] Tullis v. State, 41 Tex. Crim. Rep. 87, 52 S. W. 83, 1899; Vincent v. State, — Tex. Crim. Rep. —, 55 S. W. 819, 1900; Cox v. State, — Tex. Crim. Rep. —, 69 S. W. 145, 1902; Gaines v. State, 46 Tex. Crim. Rep. 212, 78 S. W. 1076, 1904; Rea- gan v. State, 49 Tex. Crim. Rep. 443, 93 S. W. 733, 1906. See also note in 40 Am. St. Rep. 768. 8Com v. St. John, 173 Mass. 566, 73 Am. St. Rep. 321, 54 N. E. 254, § 401] DEFENSES. 551 § 401. Imprisonment for life at time of crime. Former- ly, under the English law, because of the attainder consequent on conviction of felony, the plea of autrefois attaint was a bar to a prosecution for another felony of the same grade; but this doctrine never obtained in this country.! The fact that one accused of murder was, at the time of the crime alleged, a convict in the penitentiary serving a life sentence for a former murder, cannot be set up as a defense to bar a prose- eution for the second murder subsequently committed in the prison;* and a statute providing that a person confined in a state prison under a life sentence who, with malice afore- thought, commits an assault upon another person with a deadly weapon, etc., shall be punished with death, is constitutional.’ 1893; People v. Tweed, 50 How. Pr. w plea is whether a sentence to im- 434, 1876. Agreement with grand jury not to indict, in consideration of defendant promising not further to violate the law, is no defense. Doyle v. State, 59 Tex. Crim. Rep. 39, 126 S. W. 1131, 1910. One giving information of hold up of train; whether prosecution es- topped by consent of company, see State v. West, 157 Mo. 309, 57 S. W. 1071, 1900. See also supra, § 381. 1See supra, § 392. See also note in 17 Am. Dec. 791-795. Doctrine of autrefois attaint rec- ognized in Tennessee. See Crenshaw v. State, Mart. & Y. 122,17 Am. Dec. 788, 1827. See supra, § 392. —Expressly repudiated in some cases. [Ala.] Hawkins v. State, 1 Port. (Ala.) 475, 27 Am. Dec. 641, 1835. [Miss.] Singleton v. State, 71 Miss. 782, 42 Am. St. Rep. 488, 16 So. 295, 1894. [S. C.] State v. M’Carty, 1 Bay, 334, 1793. See also supra, § 392. As to when conviction of. felony bars further prosecution, see notes in 27 Am. Dec. 642; 11 Am. St. Rep. 83; and 92 Am. St. Rep. 89. 2[Miss.] Singleton v. State, 71 Miss. 782, 42 Am. St. Rep. 488, 16 So. 295, 1894. [Mo.] State v. Connell, 49 Mo. 282, 1872, [N. Y¥.] Thomas v. People, 67 N. Y. 218, 1876. “The question presented by such prisonment for life licenses the con- vict to murder with impunity, and surely all must agree to a negative answer to this question. The idea that, because a convict is under many disabilities, he may commit crime as he has opportunity, without punishment, is untenable. If civil- ly dead, he is corporeally alive, is under the protection of the law and answerable for what he does just as if under no denial of civil rights.” Campbell, Ch. J., in Singleton v. State, 71 Miss. 782, 42 Am. St. Rep. 488, 16 So. 295, 1894. See State v. Connell, 49 Mo. 282, 1872; Thomas v. People, 67 N. Y. 218, 1876. As to civil death and *xtent to which it is recognized in America, see note in 6 Am. St. Rep. 379. “The objection that a person was not answerable for a murder com- mitted while he was a convict under sentence of imprisonment for life for a former murder is without support in principle or practice, here or else- where, at the present time or in any former period of which we have any account.” Campbell, Ch. J., in Sin- gleton v. State, 71 Miss. 782, 42 Am. St. Rep. 488, 16 So. 295, 1894. 8 People v. Finley, 153 Cal. 59, 94 Pac. 248, 1908; People v. Quijada, 154 Cal, 243, 97 Pac. 689, 1908; Peo- ple v. Carson, 155 Cal. 164, 99 Pac. 970, 1909; People v. Oppenheimer, 552 CRIMINAL LAW. [§ 402 § 402. Infancy. Infancy may or may not constitute a defense to a charge of crime, depending upon the age, intelli- gence of the infant, and the circumstances of the case.’ At common law,” an infant under the age of seven years is con- clusively presumed to be incapable of understanding the nature of a criminal act, and for that reason cannot be held respon- sible therefor; * 156 Cal. 7338, 106 Pac. 74, 1909; Re Finley, 1 Cal. App. 198, 81 Pac. 1041, 1905. Persons undergoing life sentence constitute a class as to which the legislature is authorized to make provision by statute. People v. Fin- ley, 153 Cal. 59, 94 Pac. 248, 1908; People v. Oppenheimer, 156 Cal. 733, 106 Pac. 74, 1909. 1Infancy as affecting responsibil- ity for crime is discussed supra, §§ 85-91. See also note in 36 L.R.A. 196-211. 2See 7 Enc. Ev, 624. 8[Eng.] Marsh v. Loader, 14 C. B. N. S. 535, 11 Week. Rep. 784. [Fed.] Allen v. United States, 150 U. S. 551, 37 L. ed. 1179, 14 Sup. Ct. Rep. 196, 1893. [Ill.] Angelo v. Peo- ple, 96 Tl. 209, 36 Am. Rep. 132, 1880. [Ga.] Ford v. State, 100 Ga. 63, 25 S. EH. 845, 1896. [Ky.] Willet v. Com, 13 Bush. 230, 1877; Heil- man'v. Com. 84 Ky. 457, 4 Am. St. Rep. 207, 1 S. W. 731, 1886. [La.] State v. Lanassa, 125 La. 687, 51 So. 688, 1910. [Mass.] Com. v. Mead, 10 Allen, 398, 1865. [Miss.] Beason v. State, 96 Miss. 105, 50 So. 488, 1910. [Mo.] State v. Tice, 90 Mo. 112,2S. W. 269, 1886. [N. J.] State v. Aaron, 4 N. J. L. 231, 7 Am. Dec. 592, 596, 1818; State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, 1828. [N. Y.] People v. Townsend, 3 Hill, 479, 1842; Walker’s Case, 5 N. Y. City Hall Rec. 137, 1820. [N. C.] State v. Yeargan, 117 N. C. 706, 36 L.R.A. 196, 23 S. E. 153, 1895; State v. Hicks, 125 N. C. 636, 34 8. E. 247, 1899. [S. D.] Ex parte Nesson, 25 S. D, 49, 27 L.R.A.(N.S.) 872, 125 N. W. 124, 1910. [Tenn.] State v. Goin, 9 Humph. 175, 1848; State v. Davis, 104 Tenn. 501, 58 S. W. 122, 1900. [Va.] Law v. Com. 75 Va. 885, 40 Am. Rep. 750,’1881. © between the age of seven and fourteen,* the i 22 Cye. 623; 7 Enc. Ev. 263, 264 “With regard to persons of imma- ture years, ‘the rule is that no infant within the age of seven years can be guilty of felony, or be punished for any capital offense; for within that. age, an infant is by presumption of law doli incapax, and cannot be en- dowed with any discretion, and against this presumption no aver- ment shall be received. This legal incapacity, however, ceases when the infant attains the age of fourteen years, after which period his acts. become subject to the same rule of construction as those of any other person.” Broom, Legal Maxims, 232. Statutory period—Ancient Saxon law, established age of twelve years as age of possible discretion. 4 Bl. Com, 22; 1 Hale, P. C. 26, note 2. —Alabama_ statute establishes twelve years. McCarmack v. State, 102 Ala. 156, 15 So. 438, 1893. —Arkansas_ statute establishes twelve years. Dove v. State, 37 Ark. 261, 1881. —Georgia statute establishes ten years, Ford v. State, 100 Ga. 63, 25 S. E. 845, 1896; Canton Cottom Mills v. Edwards, 120 Ga. 447, 47 S. EK. 937, 1904. : —Illinois statute establishes ten years. Angelo v. People, 96 Ill. 209, 36 Am. Rep. 123, 1880. —Minnesota statute fixes age of presumed discretion at twelve. Minn. Penal Code § 17. —tTexas statute fixes ages at nine and thirteen. Wusnig v. State, 33 Tex. 651, 1871; Gardiner v. State, 33 ‘Tex. 692, 1871; Parker v. State, 20 Tex. App. 451, 1886; McDaniel v- State, 6 Tex. App. 475, 1879. 4State v. Yeargan, 117 N. C. 706, 36 L.R.A. 196, 238 S. E, 153, 1895; ‘Foster v. Com. 96 Va. 306, 42 LRB.A. § 402] DEFENSES. 555 presumption is against capacity to commit crime,® but this 589, 70 Am. St. Rep. 846, 31 S. E. 503, 1898. See 7 Enc. Ev. 266. As to period of indiscretion and legal presumption of innocence, see note in 36 L.R.A, 196. As to age of presumed responsibil- ity, see note in 36 L.R.A. 207. Boy under age of fourteen.—Bet- ting on game of chance; cannot be punished therefor where he did not know the act was a violation of law. State v. Yeargan, 117 N. C. 706, 36 L.R.A. 196, 23 S. E, 153, 1895. —Rape, conclusive presumption against, his ability to commit. Fos- ter v. Com. 96 Va. 306, 42 L.R.A. 589, 70 Am. St. Rep. 846, 31 S. E. 503, 1898. - As to rape by infant, see note in 36 L.R.A. 203. 5 [Ala.] Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494, 1858; Martin v. State, 90 Ala. 602, 24 Am. St. Rep. 844, 8 So. 858, 1890; McCor- mack v. State, 102 Ala. 156, 15 So. 438, 1893; Reynolds v. State, 154 Ala. 14, 45 So. 894, 1907. [Ark.] Dove v. State, 37 Ark. 261, 1881; Harrison v. State, 72 Ark. 117, 78 S. W. 763, 1904. [Del.] State v. Bostick, 4 Harr. (Del.) 568, 1847; State v. Handy, 4 Harr. (Del.) 566, 1845. [Ga.] Ford v. State, 100 Ga. 63, 25 S. E. 845, 1896. [Ill.] Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132, 1880. [Iowa] State v. Mil- holland, 89 Iowa, 5, 56 N. W. 403, 1893; State v. Goodsell, 138 Iowa, 504, 116 N. W. 605, 1908. [Ky.] Willet v. Com. 13 Bush, 230, 1877; McClure v. Com. 81 Ky. 448, 1883; Heilman v. Com. 84 Ky. 457, 4 Am. St. Rep. 207, 1 S. W. 731, 1886. [La.] State v. Nickleson, 45 La. Ann. 1172, 14 So. 134, 1893; State v. Lanassa, 125 La. 687, 51 So. 688, 1910. [Mass.] Com. v. Mead, 10 Allen, 398, 1865. [Miss.] Beason v. State, 96 Miss. 105, 50 So. 488, 1910. [Mo.] State v. Adams, 76 Mo. 355, 4 Am. Crim. Rep. 392, 1882. [N. J.} State v. Aaron, 4 N. J. L. 231, 7 Am. Dee. 592, 1818; State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, 1828. [N. C.] State v. Yeargan, 117 N. C. 706, 36 L.R.A. 196, 23 S. E. 153, 1895; State v. Hicks, 125 N. C. 636, 34 S. E. 247, 1899. [N. D.], State v. Fisk, 15 N. D. 589, 108 N.. W. 485, 11 A. & E. Ann. Cas. 1061, 1906. [Pa.] Com. v. M’Keagey, 1. Ashm. (Pa.) 248, 1826. [S. C.] State v. Toney, 15 S. C. 409, 1881. [S. D.] Ex parte Nesson, 25 S. D. 49, 27 L.R.A.(N.S.) 872, 125 N. W. 124, 1910. [Tenn.] State v. Doherty, 2 Overt. 90, 1806; State v. Goin, 9 Humph. 175, 1848; State v. Davis, 104 ‘Tenn. 501, 58 S. W. 122, 1900. “Between the age of seven and fourteen years, an infant is deemed prima facie to be doli incapax; but. in this case the maxim applies, ma- litia supplet etatem—malice (which is here used in its legal sense, and means the doing of a wrongful act intentionally, without just cause or excuse), supplies the want of mature: years. Accordingly, at the age above. mentioned, the ordinary legal pre- sumption may be rebutted by strong and pregnant evidence of mischiev- ous discretion, for the capacity of doing ill or contracting guilt is not. so much measured by years and days. as by the strength of the delin- quent’s understanding and judgment. In all such cases, however, the evi- dence of malice ought to be strong and clear beyond all doubt and con- tradiction.” Archbold, Crim. Pl. p. 11, and note by John Norton Pome- roy in edition of 1877. Aggravated assault by, renders in- fant liable. State v. Pugh, 52 N, C. (7 Jones, L.) 61, 1859. Inference in favor of infant in- creases as he is nearer the age of seven years. Walker’s Case, 5 N. Y. City Hall Rec. 137, 1820. Presumption one of fact, and not of law. Hill v. State, 63 Ga. 578, 36 Am. Rep. 120, 1879. See [Ind.] Hall v. State, 8 Ind. 439, 1856. [N. H.] State v. Hodge, 50 N. Hu 510, 1869. [N. Y¥.] Stover v. People, 56 N. Y. 315, 1874. [Vt.] State v. Learnard, 41 Vt. 585, 1869. [Wis.] Graves v. State, 12 Wis. 591, 1860; Crilley v. State, 20 Wis. 231, 1866. Rape cannot be committed by a. 554 presumption is subject to be overcome by proof of capacity, CRIMINAL LAW. [§ 402 6 —the burden of establishing which is, of course, on the prose- cution,” which must do so by the clearest and strongest boy under fourteen. State v. Handy, 4 Harr. (Del.) 566, 1847. In rape presumption of want of physical capacity prevails. State v. Fisk, 15 N. D. 589, 108 N. W. 485, 11 A. & E. Ann. Cas. 1061, 1906. See infra, §§ 686 et seq. Sodomy, in crime of, presumption in favor of infant. Reg. v. Hartlen, 30 N. S. 317, 1897. —Regarding the common-law pre- sumption as to a child under four- teen years of age being applicable in this species of crime, there is little, if any, direct authority, but a con- sideration of the reason of the law shows that it is applicable, for the reason that the degree of carnal knowledge necessary to _ involve criminal responsibility is the same as that in rape. See Archbold’s Crim. Pl. & Pr. 777, 1 Russell, Crimes, 897; Rex v. Reekspear, 1 Moody, C. C. 342; Rex v. Cozins, 6 Car. & P. 351; Reg. v. Hartlen, 30 N. S. 317, 1897. Throwing missile in sport and without malice, expecting person to dodge it, inflicting injury; infant of age of responsibility for crime is liable to punishment for assault and battery. [Ga.] Hill v. State, 63 Ga. 578, 36 Am. Rep, 120, 1879. [Ind.] Peterson v. Haffner, 59 Ind. 130, 26 Am. Rep. 81, 1877. [Pa.] Kane v. Com. 89 Pa. 522, 33 Am. Rep. 787, 1879. See note in 26 Am. Rep. 83. 6 [Ala.] Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494, 1858; Martin v. State, 90 Ala. 602, 24 Am. St. Rep. 844, 8 So. 858, 1890; McCormack v. State, 102 Ala. 156, 15 So. 438, 1893; Neville v. State, 148 Ala. 681, 41 So. 1011, 1906. [Ark.] Dove v. State, 37 Ark. 261, 1881; Harrison v. State, 72 Ark. 117, 78 S. W. 763, 1904. [Ga.] Hill v. State, 63 Ga. 578, 36 Am. Rep. 120, 1879. [Tll.] Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132, 1880. [Ind.] Peterson v. Haffner, 59 Ind. 130, 26 Am. Rep. 81, 1887. [Iowa] State v. Milhol- land, 89 Iowa, 5, 56 N. W. 403, 1893. [Ky.] Willet v. Com. 13 Bush, 230, 1877; State v. Fowler, 2 Ky. L. Rep. 150, 1880; McClure v. Com. 81 Ky. 448, 1883; Heilman v. Com. 84 Ky. 457, 4 Am. St. Rep. 207, 1 S. W. 731, 1886. [La.] State v. Nickelson, 45 La. Ann. 1172, 14 So. 134, 1893. [Miss.] Beason v. State, 96 Miss. 105, 50 So. 488, 1910. [Mo.] State v. Adams, 76 Mo. 355, 4 Am. Crim. Rep. 392, 1882. [N. J.] State v. Aaron, 4 N. J. L. 281, 7 Am. Dec. 592, 1818; State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, 1828. [N. Y.] People v. Townsend, 3 Hill, 479, 1842; People v. Kendall, 25 Wend. 399, 37 Am. Dec. 240, 1841; People v. Davis, 1 Wheeler, C. C. 230, 1823; People v. Teller, 1 Wheeler, C. C. 231, 1828; Walker’s Case, 5 N. Y. City Hall Rec. 137, 1820; Stage’s Case, 5 N. Y. City Hall Rec. 177, 1821; People v. Squazza, 40 Misc. 71, 81 N. Y. Supp. 254, 1903. [N. C.] State v. Yeargan, 117 N. C. 706, 36 L.R.A 196, 23 S. E. 153, 1895; State v. Hicks, 125 N. C. 686, 34 S. E. 247, 1889. [Pa.] Com. ex rel. Joseph v. M’Keagy, 1 Ashm. (Pa.) 248, 1831; Kane v. Com. 89 Pa. 522, 33 Am. Rep. 787, 1879. [S. C.] State v. Toney, 15 S. C. 409, 1881. [S. D.] Ex parte Nesson, 25 8S. D. 49, 27 L.R.A.(N.S.) 872, 125 N. W 124, 1910. [Tenn.] State v. Doherty, 2 Overt. 80, 1806; State v. Goin, 9 Humph, 175, 1848; State v. Davis, 104 Tenn. 501, 58 S. W. 122, 1900. [Tex.] Wusnig v. State, 33 Tex. 651, 1871; Gardiner v. State, 33 Tex. 692, 1870; Keith v. State, 33 Tex. Crim. Rep. 341, 26 S. W. 412, 1894; Price v State, 50 Tex. Crim. Rep. 71, 94 S. W. 901, 1906. [Vt.] State v. Learnard, 41 Vt. 585, 1896. [Va.] Law v. Com. 75 Va. 885, 40 Am Rep. 750, 1881. See 22 Cyc. 623-625; 7 Ene. Ev. 624-626. 7 Burden on prosecution to show capacity. [Ark.] Dove v. State, 37 Ark. 261, 1881; Harrison v. State, 72 Ark. 117, 78 S. W. 763, 1904. § 402] DEFENSES. 555 proof in case of felony;*® after an infant has arrived at the age of fourteen, he is presumed to be capable of committing crime, and will be held responsible therefor,® in the absence [Ga.] Ford v. State, 100 Ga. 63, 25 S. E. 845, 1896. [Iowa] State v. Fowler, 52 Iowa, 103, 2 N. W. 983, 1879. [Ky.] Willet v. Com. 13 Bush, 231, 1877. [Mo.] State v. Adams, 76 Mo. 355, 4 Am. Crim. Rep. 392, 1882. [N. Y] People v. Davis, 1 Wheeler, C. C. 230, 1823; People v. Squazza, 40 Misc. 71, 81 N. Y. Supp. 254, 1903; People v. Domenico, 45 Mise. 309, 92 N Y Supp 390, 1904. [Tenn.] State v. Davis, 104 Tenn. 501, 58 S. W. 122, 1900. [Tex.] Gardiner v. State, 33 Tex. 692, 1870; McDaniel v. State, 5 Tex. App. 475, 1879. Bink- ley v. State, 51 Tex. Crim. Rep. 54, 100 S. W. 780, 1907. Capacity question for jury, and they are to be satisfied on this point beyond a reasonable doubt, the same as upon any other point in the evi- dence submitted to them. [Ala.] Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494, 1858; Martin v. State, 90 Ala. 602, 24 Am. St. Rep. 844, 8 So. 858, 1890; McCormack v. State, 102 Ala. 156, 15 So. 438, 1893; Reynolds v. State, 154 Ala. 14, 45 So. 894, 1908. [Ark.] Dove v State, 37 Ark. 261, 1881. [Ky.] McClure v. Com. 81 Ky. 448, 1888. [Mass.] Com. v. Mead, 10 Allen, 398, 1865. [S. C.] State v. Toney, 15 S. C. 409, 1881. [Vt.] State v. Learnard, 41 Vt. 585, 1869. [Va.] Law v. Com. 75 Va. 885, 40 Am. Rep. 750, 1881. Confession of murder by infant having capacity to commit crime may justify his execution. State v. Guild, 10 N. J. L, 168, 18 Am. Dee. 404, 1828. Expert testimony as to capacity is admissible to overcome prima facie presumption. State v. Nickleson, 45 La. Ann. 1172, 14 So. 134, 1893. Gambling at dice, infant not liable for, unless he knew the act to be un- lawful. State v. Yeargan, 117 N. C. 106, 36 L.R.A. 196, 23 S. E. 153, 1895. Malicious trespass may be com- mitted by, and conviction had with- out independent evidence of capacity. State v. Toney, 15 S. C. 409, 1881. Sportively throwing child of ten off of raft, thereby causing him to be drowned; infant of thirteen may be guilty of manslaughter. State v. Milholland, 89 Iowa, 5, 56 N. W. 403, 1893. Temporary mental derangement produced by intoxicating liquors, during which period theft committed by child of thirteen; acquittal war- ranted. Com. v. French, Thacher, Crim. Cas, 163, 1827. 8 Angelo v. People, 96 Ill. 209, 36 Am, Rep. 132, 1880; Law v. Com. 75 Va. 885, 40 Am. Rep. 750, 1881. 9 [Eng.] Reg. v. Smith, 1 Cox, C. C. 260. [Ga.] Irby v. State, 32 Ga. 496, 1861. [Ill] Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132, 1880. [La.] State v. Lanassa, 125 La. 687, 51 So. 688, 1910. [Minn.] State v. Kluseman, 53 Minn. 541, 55 N. W. 741, 1893. [N. J.] Denn ex dem. Boyd v. Banta, 1 N. J. L. 266, 1795. [N. C.] State v. Arnold, 35 N. C. (18 Tred. L.) 184, 1851. [Pa.] Com. ex rel. Joseph v. M’Keagy, 1 Ashm. (Pa.) 248, 1826. [Tenn.] State v. Doherty, 2 Overt. 90, 1806; State v. Davis, 104 Tenn. 501, 58 S. W. 122, 1900; State v. Yeargan, 117 N. C. 706, 36 L.R.A. 196, 23 8. E. 153, 1895. [Tex.] Duncan v. State, 29 Tex. App. 141, 15 S. W. 407, 1867; McDaniel v. State, 5 Tex. App. 475, 1879; In- gram v. State, 29 Tex. App. 33, 14 S. W. 457, 1890; Neal v. State, — Tex. Crim. Rep. —, 101 S. W. 212, 1907. [Vt.] State v. Learnard, 41 Vt. 585, 1869. See 22 Cyc. 625, 6 Enc. Ev. 267. As to age of criminal liability in children, see exhaustive note in 36 L.R.A. 196-211. Allegation, accused over fourteen; prosecution must make proof of al- legation the same as in any other allegation, or conviction will be set aside. Stephenson v. State, 28 Ind. 272, 1867. Compare: State v. Arnold, 35 N. C. (13 Ired. L.) 184, 1851, holding that in absence of all proof as to the defendant’s age, it is to be judged by 556 CRIMINAL LAW. [§ 402, of evidence of want of responsibility, and the burden in such cases is on the defendant to establish such want of responsi- bility.29 § 403. Injunction and prohibition. It is the general rule of law that equity is concerned with protection of civil and property rights only. The purposes of a court of equity are to supplement, and not to usurp, the functions of courts of law. This being the case, a court of equity has no jurisdiction to enjoin the commission of a crime,’ or to enjoin the prose- inspection, and that a reviewing court wll assume the tral court and jury decided defendant was over fourteen. Rape may be committed by a boy over fourteen years of age. State v. Handy, 4 Harr. (Del.) 566, 1845; Ake v. State, 6 Tex. App. 398, 32 Am. Rep. 586, 1879. ‘treason may be committed by an infant, forfeiting his estate. Denn ex dem. Boyd v. Banta, 1 N. J. L. 266, 1795. 10 [Del.] State v. Kavanaugh, 4 Penn. (Del.) 131, 53 Atl. 335, 1902; State v. Di Guglielmo, 4 Penn. (Del.) 336, 55 Atl. 350, 1903. [Minn.] State v. Kluseman, 53 Minn. 541, 55 N. W. 741, 1893. [Vt.] State v. Learn- ard, 41 Vt. 585, 1869. Nonage must be shown by defend- ant, is held in some cases, See State v. Arnold, 35 N. C. (13 Ired. L.) 184, 1851. Compare: Stephenson v. State, 28 Ind. 272, 1867, holding that where the indictment alleges defendant to be over fourteen, the state has the burden of proving the allegation, and that, failing to make such proof, conviction will be set aside. Testimony, he did not know act wrong, by an infant of the age of presumed responsibility, will not overcome the presumption in the absence of evidence as to mental ca- pacity tending to support such testi- mony. State v. Kluseman, 53 Minn. 541, 55 N. W. 741, 1893. 1[Ky.] Neaf v. Palmer, 103 Ky. 496, 41 LRA. 219, 45 S. W. 506, 1898 (keeping bawdy house). [N. Y.] Anderson v. Doty, 33 Hun, 160, 1884 (keeping bawdy-house). [Chio] State ex rel. Atty. Gen. v. Ho- bart, 11 Ohio 8. & C. P. Dec. 166 (holding proposed “boxing match”). [Tex.] Ex parte Allison, 48 Tex. Crim. Rep. 634, 3 L.R.A.(N.S.) 622, 90 S. W. 492, 13 A. & E, Ann. Cas. 684, 1905 (operating gambling house). See note in 3 L.R.A.(N.S.) 622- 624. As to injunction at suit of state against maintaining public nuisance, although the act is a crime, see notes in 15 L.R.A.(N.S.) 747, and 23 L.R.A. (N.S.) 691. As to injunction against crime which is a private nuisance, see note in 21 L.R.A.(N.S.) 585. Base-ball playing on Sunday, see “Sunday Base-ball Playing,” this note. Bawdyhouse, injunction against keeping, see note in 32 Am. Dec. 111, also tit. “Injury to Property,” this footnote. Cannot be granted on ground ob- noxous to neighborhood, and that it affects unfavorably the salable value of property in the immediate local- ity. Neaf v. Palmer, 103 Ky. 496, 41 L.R.A. 219, 45 S. W. 506, 1898, fol- lowing Anderson v. Doty, 33 Hun, 160, 1884, denying the authority of Hamilton v. Whitridge, 11 Md. 128, 69 Am. Dec. 184, 1857. Bull fighting will be restrained by injunction. State ex rel. Crow v. Canty, 207 Mo. 439, 15 L.R.a.(N.S.) 747, 123 Am, St. Rep. 393, 105 S. W. 1078, 1907. Charge of criminal nature not touching enjoyment of property or health; a court of equity is without jurisdiction in the premises, State § 403] DEFENSES. 557 cution of a criminal, or a quasi criminal, action anticipated,? threatened,®. or one which has been already instituted,* or v, Ehrlick, 65 W. Va. 700, 23 L.R.A. (N.S.) 691, 64 S. E. 935, 1909. Injury to property merely not suf- ficient to authorize injunction re- straining commission of crime; e. g., keeping bawdyhouse. See note in 3 L.R.A.(N.S.) 622-624, Legislature may authorize injunc- tion against commission of a crime. Ex parte Allison, 48 Tex. Crim. Rep. 634, 3 L.R.A.(N.S.) 622, 90 S. W. 492,13 A. & E. Ann. Cas. 684, 1905. Liquor selling on Sunday enjoined in Wood v. Brooklyn, 14 Barb. 425, 1852. Maintaining saloon; selling liquor in violation of law will be enjoined, although such selling is a crime. State ex rel. Vance v. Crawford, 28 Kan. 726, 42 Am. Rep. 182, 1882. See Walker v. MeNelly, 121 Ga. 114, 48 S. E. 718, 1904. Saloon, enjoining maintenance of. See Haggart v. Stehlin, 137 Ind. 43, 22 L.R.A. 577, 35 N. E. 997, 1892; Detroit Realty Co. v. Barnett (De- troit Realty Co. v. Oppenheim), 156 Mich. 385, 21 L.R.A.(N.S.) 585, 120 N. W. 804, 1909. Prize fighting will be enjoined by ‘a court of equity as a public nui- sance, and the owner of property will ‘be enjoined, at the suit of the state, from permitting his property to be used for that purpose and thereby ereating a public nuisance. Com. v. McGovern, 116 Ky. 237, 66 L.R.A. 280, 75 S. W. 266, 1903. See also ‘Columbian Athletic Club v. State, 143 Ind. 98, 28 L.R.A. 727, 52 Am. St. Rep. 407, 40 N. E. 914, 1895; State ex rel. Sheets v. Hobart, 8 ‘Ohio N. P. 246, 11 Ohio S. & C. P. Dec. 360. Property rights involved; court of equity will grant injunction prevent- ing commission of crime. Ex parte Allison, 48 Tex. Crim. Rep. 634, 3 L.R.A.(N.S.) 622, 90 S. W. 492, 18 A. & E. Ann. Cas. 684, 1905. Public rights injured; acts will ‘be enjoined, although such acts are of a criminal character. See [U. S.] Re Debs, 158 U. S. 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. 19 L.R.A. 387, 5 Inters. Com. Rep. 522, 54 Fed. 730, 1893; Arthur v. Oakes, 25 L.R.A. 414, 4 Inters. Com. Rep. 744, 11 C. C. A. 209, 24 U. S. App. 239, 63 Fed. 311, 9 Am. Crim. Rep. 169, 1894; Consolidated Steel & Wire Co. v. Murray, 80 Fed. 811, 1897; Allis Chalmers Co. v. Re- liable Lodge, 111 Fed. 264, 1901. [Mass.] Vegelahn v. Guntner, 167 Mass. 92, 35 L.R.A. 722, 57 Am. St. Rep. 443, 44 N. E. 1077, 1896. [Mich.] Beck v. Railway Teamsters’ Protective Union, 118 Mich. 497, 42 L.R.A. 407, 74 Am. St. Rep. 421, 77 N: W. 13, 1898. [Mo.] Hamilton- Brown Shoe Co. v. Saxey, 131 Mo. 212, 52 Am. St. Rep. 622, 32 S. W. 1106, 1895. [N. J.] Cumberland Glass Mfg. Co. v. Glass Bottle Blow- ers’ Asso. 59 N. J. Eq. 49, 46 Atl. 208, 1899. [Ohio] Perkins v. Rogg, 28 Ohio L. J. 32. Surday baseball playing enjoined in Dunham vy. Binghamton & L. Baseball Asso, 44 Misc. 112, 89 N. Y. Supp. 762, 1904, 2 [Ark.] New Home Sewing Mach. Co. v. Fletcher, 44 Ark. 139, 1884. [Ga.] Paulk v. Sycamore, 104 Ga. 24, 41 L.R.A. 772, 69 Am. St. Rep. 128, 30 8. E. 417, 1898; Bainbridge v. Reynolds, 111 Ga. 758, 36 S. FE. 935, 1900. [Mo.] State ex rel. Kenamore v. Wood, 155 Mo. 425, 48 L.R.A. 596, 56 S. W. 474, 1900. Compare: Wood v. Brooklyn, 14 Barb. 425, 1852. 3 [La.] Lecourt v. Gaster, 49 La. Ann. 487, 21 So. 646, 1897. [Mo.] State ex rel. Kenamore v. Wood, 155 Mo. 425, 48 L.R.A. 596, 56 S. W. 474, 1900. [Tex.| Chisholm v. Adams, 71 Tex. 678, 10 S. W. 336, 1888. Working on Sunday prohibited by statute, arrest of operatives of manufacturing company working on Sunday was enjoined in Manhattan Iron Works Co. v. French, 12 Abb. N.C. 448, 1882. - 4[Ala.] Old Dominion Teleg. Co. v. Powers, 140 Ala. 220, 37 So. 195, 1A. & E. Ann. Cas, 119, 1903. [Ark.] Portis v. Fall, 34 Ark. 375, 1879. 558 CRIMINAL LAW. [§ 403 the enforcement of a judgment rendered in such an action.® And a prosecution® under a city ordinance, or a threatened [Conn.] Tyler v. Hamersley, 44 Conn. 419, 26 Am. Rep. 479, 1877. [Ga.] Paulk v. Sycamore, 104 Ga. 24, 41 L.R.A. 772, 69 Am. St. Rep. 126, 30 S. E. 17, 1898. [D. C.] Washing- ton & G. R. Co. v. District of Co- lumbia, 6 Mackey, 570, 1888. [Iowa] Home Sav. & Trust Co. v. Hicks, 116 Iowa, 114, 89 N. W. 103, 1902. [Mich.] Osborn v. Charlevoix Cir- cuit Judge, 114 Mich. 655, 72 N. W. 982, 1897. [Miss.] Crighton v. Dahmer, 70 Miss. 602, 21 L.R.A. 84, 35 Am. St. Rep. 666, 13 So. 237, 1893. [Mo.] Kansas City Cable R. Co. v. Kansas City, 29 Mo. App. 89, 1859; State ex rel. Kenamore v. Wood, 155 Mo. 425, 48 L.R.A. 596, 56 S. W. 474, 1900. [Tenn.] Sanders v. Met- calf, 1 Tenn. Ch. 419, 1873. [Wyo.] Littleton v. Burgess, 14 Wyo. 173, 2 L.R.A.(N.S.) 631, 82 Pac. 864, 1905. See notes in 65 L.R.A. 864; 2 L.R.A.(N.S.) 631-635. As to injunction to restrain crim- inal proceedings, see note in 21 L.R.A. 84. Court of chancery has no power to restrain criminal proceedings, unless they are instituted by a party to a suit already pending before it, and to try the same right that is in issue there. [Eng.] Turner v. Turner, 15 Jur. 218; Atty. Gen. v. Cleaver, 18 Ves. Jr. 211, 220; Kerr v. Preston, L. R. 6 Ch. Div. 463, 46 L. J. Ch. N.S. 409, 25 Week. Rep. 264; Saull v. Browne, L. R. 10 Ch. 64, 44 L. J. Ch. N.S. 1, 31 L. T. N.S. 493, 23 Week. Rep. 50, 18 Cox, C. C. 30. [U. S.] Harkrader v. Wadley, 172 U. S. 148, 43 L. ed. 399, 19 Sup. Ct. Rep. 119, 1898; Re Sawyer, 124 U. S. 200, 31 L. ed. 402, 8 Sup. Ct. Rep. 482, 1887; Spink v. Francis, 19 Fed. 670, 20 Fed. 567, 1884; Suess v. Noble, 31 Fed. 855, 1887; Arbuckle v. Black- burn, 65 L.R.A. 864, 51 C. C. A. 122, 113 Fed. 616, 1902. [Ala.] Moses v. Mobile, 52 Ala. 198, 1875. [Ark.]} Waters Pierce Oil Co. v. Little Rock, 39 Ark. 412, 1882. [Conn.] Ty- ler v. Hammersley, 44 Conn. 419, 26 Am. Rep. 479, 1877. [Ga.] Gault v. Waliis, 53 Ga. 675, 1875; Phillips v. Stone Mountain, 61 Ga. 386, 1878; Stuart v. Lasalle County, 83 Ill. 341, 25 Am. Rep. 397, 1876. [La.] Devron v. First Municipality, 4 La. Ann. 11, 1849; Levy v. Shreveport, 27 La. Ann. 620, 1877. [N. Y.] West v. New York, 10 Paige, 539, 1844; Davis v. American Soc. 75 N. Y. 362, 1878. [N. C.] Cohen v. Goldsboro, 77 N. C. 2, 1877. Contempt proceedings are governed by the same rule of law. Tyler v. Hamersley, 44 Conn. 419, 26 Am. Rep. 479, 1877; Sanders v. Metcalf, 1 Tenn. Ch. 419, 1873. Criminal information to recover a penalty is governed by the same rule of law. Washington & G. R. Co. v. District of Columbia, 6 Mackey, 570, 1888. See Home Sav. & T. Co. v. Hicks, 116 Jowa, 114, 89 N. W. 103, 1902. Unconstitutionality of statute al- leged does not give a court of equity jurisdiction to enjoin a prosecution for its violation. Osborn v. Charle- voix Circuit Judge, 114 Mich. 655, 72 N. W. 982, 1897; State ex rel. Kena- more v. Wood, 155 Mo. 425, 48 L.R.A. 596, 56 S. W. 474, 1900. 5 Joseph v, Burk, 46 Ind. 59, 1874. 6 [U. S.] Harkrader v. Wadley, 172 U. S. 148, 43 L. ed. 399, 19 Sup. Ct. Rep. 119, 1898; Georgia Packing Co. v. Mason, 22 L.R.A. 775, 4 Inters. Com. Rep. 508, 60 Fed. 774, 1893.. [Ga.] Garrison v. Atlanta, 68 Ga. 64, 1881; Pope v. Savannah, 74 Ga. 365, 1884; Augusta v. Burum, 93 Ga. 68, 26 L.R.A. 340, 19 S. E. 820, 18938; Moultrie v. Patterson, 109 Ga. 370, 34 8. E. 600, 1899. [Ill] Poyer v. Des Plaines, 123 Ill. 111, 5 Am. St. Rep. 494, 13 N. E. 819, 1887; Cicero Lumber Co. v. Cicero, 176 Ill. 9, 42 L.R.A. 696, 68 Am. St. Rep. 155, 51 N. E. 758, 1898; Dolton v. Dolton, 201 Ill. 155, 66 N. E. 323, 1903. [Ind.] Schwab v. Madison, 49 Ind. 329, 1874; Rushville v. Rushville Natural Gas Co, 1382 Ind. 575, 15 L.R.A. 321, 28 N. E. 858, 1891. [Md]. Deems v. Baltimore, 80 Md. 164, 26 L.R.A. 541, 45 Am. St. Rep. 345, 30 Atl. 648, 1894. [Minn.] Farmer v. § 403] DEFENSES. 559 prosecution,” like a prosecution or a threatened prosecution under a statute, will not be enjoined where there is an appro- priate remedy at law. An exception to the general rule exists in those cases in which a suit has already been instituted, and is properly pend- ing in a court of equity, which suit involves the same issues and affects the same parties;* but this exception to the rule does not extend to a case where a court of equity has acquired St. Paul, 65 Minn. 176, 32 L.R.A. 199, 67 N. W. 990, 1896. [N. Y.] Mar- vin Safe Co. v. New York, 38 Hun, 146, 1885. Compare: Baltimore v. Radecke, 49 Md. 217, 33 Am. Rep. 239, 1878. Illegal license fee exacted of com- mon carrier by ordinance, enforce- ment of the ordinance by punish- ment for noncompliance may be en- joined. Southern Exp. Co. y. Ensley, 116 Fed. 756, 1902. Illegality of an ordinance, like the alleged unconstitutionality of the statute, is ne ground for the inter- position of a court of equity. [Ala.] Burnett v. Craig, 30 Ala. 135, 68 Am. Dec. 115, 1857. [Colo.] Denver v. Beede, 25 Colo. 172, 54 Pac. 624, 1898. [Ga.] Phillips v. Stone Moun- tain, 61 Ga. 386, 1878; Paulk v. Sycamore, 104 Ga. 24, 41 L.R.A,. 772, 69 Am. St. Rep. 128, 30 S. E. 417, 1898; Moultrie v. Patterson, 109 Ga. 370, 34 S. E. 600, 1899. [Mo.] Kansas City Cable R. Co. v. Kansas City, 29 Mo. App. 89, 1888. [Okla.] Golden v. Guthrie, 3 Okla. 128, 41 Pac. 350, 1895. [Pa.] McLaughlin v. Jones, 3 W. N. C. 203, 1876. License tax upon jobbers imposed by illegal ordinance, enforcement was enjoined in Hutchinson v. Beckham, 55 C. C. A. 333, 118 Fed. 399, 1902. Ordinances not valid exercised by police power, their execution may be enjoined. Southern Exp. Co. v. Ens- ley, 116 Fed. 756, 1902. Newport v. Newport & C. Bridge Co. 90 Ky. 193, 8 L.R.A. 484, 13 S. W. 720, 1890. Valuable franchise acquired and large amount of money expended thereon under general law of former ordinance, subsequent ordinance im- posing restraints and penalties is in- valid as to such franchise, and will be enjoined as to it. Rushville v. Rushville Natural Gas Co. 132 Ind. 575, 15 L.R.A. 321, 28 N. E. 853, 1891. See Platte & D. Canal & Mill. Co. v. Lee, 2 Colo. App. 184, 29 Pac. 1036, 1892. 7Cohen v. Goldsboro, 77 N. C, 2, 1877; St. Peter’s Episcopal Church v. Washington, 109 N. C. 21, 13 S. E. 700, 1891; McLaughlin v. Jones, 3 W.N. C. 203, 1876. As to injunction against enforce- ment of ordinance, see notes in 15 L.R.A. 321; 22 L.R.A. 775; 26 L.R.A. 340; 26 L.R.A. 541; 33 L.R.A. 199; and 42 L.R.A. 646. Enforcement of ordinance interfer- ing with exercise of public franchise may be enjoined. See Southern Exp. Co. v. Ensley, 116 Fed. 756, 1902; Mobile v. Louisville & N. R. Co. 84 Ala. 115, 5 Am. St. Rep. 342, 4 So. 106, 1887; Montgomery v. Louisville & N. R. Co. 84 Ala. 127, 4 So. 626, 1887. Threatened arrest for sole purpose of preventing exercise of civil rights - conferred directly by law will be en- joined. Atlanta v. Gate City Gas- light Co. 71 Ga. 106, 1883; Georgia R. & Bkg. Co. v. Atlanta, 118 Ga. 486, 45 S. E. 256, 1903. Prosecution for subsequent viola- tions of ordinance not enjoined pend- ing a prosecution for « prior viola- tion. Brown v. Birmingham, 140 Ala. 590, 37 So. 173, 1903; Cavanaugh v. Cleveland, 6 Ohio N. P. 423, 8 Ohio S. & C. P. Dec. 329, 1899. 8 Spink v. Francis, 20 Fed. 567, 1884; Wadley v. Blount, 65 Fed. 667, 1895; Arbuckle v. Blackburn, 65 L.R.A. 864, 51 C. C. A. 122, 113 Fed. 616, 1902. See note in 65 L.R.A. 864, 560 CRIMINAL LAW. [§ 403 jurisdiction of the person of the accused on the civil side of the transaction,’ and there is also a criminal liability separate and distinct from the civil liability, or in those cases where there is a simple injury to property right;?° but it does apply in those cases where necessary to protect property rights’ or civil rights’ from destruction, or where the enforcement of the statute, or of the ordinance, will occasion irreparable 9 Harkrader v. Wadley, 172 U. S. 148, 43 L. ed. 399, 19 Sup. Ct. Rep. 119, 1898. 10 Arbuckle v. Blackburn, 65 L.R.A. 864, 51 U. C. A. 122, 113 Fed. 616, 1892; Davis v. American Soc. 75 N. Y¥. 362, 1878. A property may be greatly injured by the wrongful and unfounded charge that it is used for immoral purposes. Such prosecution may de- stroy its rental value and prevent its sale, yet a court of equity could not usurp the right of trial which both the state and the accused have in a common-law court before a jury. Every citizen must submit to such accusations, if lawfully made, look- ing to the vindication of an acquit- tal and such remedies as the law af- fords for the recovery of damages. It is often a great hardship to be wrongfully accused of crime, but it is one of the hardships which may result in the execution of the law, against which courts of equity are powerless to relieve. [Fed.] Suess v. Noble, 31 Fed. 855, 1887; Hems- ley v. Myers, 45 Fed. 283, 1891; Ar- buckle v. Blackburn, 65 L.R.A. 864, 51 C. C. A. 122, 113 Fed. 616, 1892. [N. Y.] Kramer v. Board of Police, 21 Jones & S. 492, 1886; [Ohio] Pre- digested Food Co. v. McNeal, 1 Ohio N. P. 266, 4 Ohio S. & C. P. Dee. 356, 1895. Prosecution for cruelty to animals and injury to defendant’s business as a slaughterer of hogs by a certain method, an injunction not granted to prevent proceedings. Davis v. Amer- ican Soc. 75 N. Y. 362, 1878. 11 Atlanta v. Gate City Gaslight Co. 71 Ga. 106, 1883. Gas company restricted to certain district in city by ordinance so as to excluae existing works, or works in course of construction by permit pre- viously granted, such restriction not being demanded by the public wel- fare, enforcement of the ordinance by arrest and punishment of opera- tives will be enjoined. Dobbins v. Los Angeles, 195 U. S. 223, 49 L. ed. 169, 25 Sup. Ct. Rep. 18, 1904, re- versing 139 Cal. 179, 96 Am. St. Rep. 95, 72 Pac. 970, 1903. Enforcement of license fee to sell liquor applicable to plaintiff has been enjoined. Joseph Schlitz Brewing Co. yv. Superior, 117 Wis. 297, 93 N. W. 1120, 1903. Property right involved will not alone give a court of equity juris- diction to enjoin a criminal prosecu- tion. Arbuckle v. Blackburn, 65 L.R.A. 864, 51 C. C. A. 122, 113 Fed. 616, 1902; Predigested Food Co. v. MeNeal, 1 Ohio N. P. 266, 4 Ohio S. & C. P. Dec. 356, Pure-food officer will not be en- joined from publishing opinion that specific product is within prohibition of law. Arbuckle v. Blackburn, 65 L.R.A. 864, 51 0. C. A. 122, 113 Fed. 616, 1902; Predigested Food Co. v. McNeal, 1 Ohio N. P. 266, 4 Ohio S. & C. P. Dee. 356. 12 Atlanta v. Gate City Gaslight Co. 71 Ga. 106, 1883. Fire insurance companies regulat- ing rates, agents’ commissions, etc., prohibited by statute, prosecution under statute was enjoined in Green- wich Ins. Co. v. Carroll, 125 Fed. 121, 1903. No franchise involved and irrepar- able injury not shown, injunction not granted against enforcement of ordi- nance by fine or imprisonment. For- cheimer v. Port of Mobile, 84 Ala. 126, 4 So. 112, 1887, § 404) DEFENSES. 561 injury, there being no plain, speedy, and adequate remedy at law." Prohibition does not lie to prohibit the court from pro- nouncing judgment after the time has expired therefor, where the statute provides that judgment must be rendered within a certain number of days after conviction, because the court has jurisdiction of the subject-matter and of the person of the defendant, and the judgment would not be void, or subject to collateral attack, upon the ground of its untimely rendition.“ § 404. Insanity. In those cases in which insanity’ exists to such an extent as to dethrone the reason of the person and render him incapable of distinguishing between right and wrong in regard to the particular act involved, under the influence of which disability the act is done,? no criminal 13 Ewing v. Webster City, 103 Towa, 226, 72 N. W. 511, 1897. Adequate remedy at law exists where there is an opportunity to establish the invalidity of the law or the innocence of the accused. Ar- buckle v. Blackburn, 65 L.R.A. 864, 51 C. C. A. 122, 113 Fed. 616, 1902; Brown v. Birmingham, 140 Ala. 590, 37 So. 173, 1903. 14Rankin v. Superior Ct. 157 Cal. 189, 106 Pac. 718, 1910. 1Search note: 22 Cyc. 1212; 16 Am. & Eng. Enc, Law, 2d ed. p. 618- 622; 27 Century Dig. col. 2624, § 144; 10 Decen. Dig. p. 2118, §§ 83, 84; Am. Decs. title “Insane Persons,” §§ 83, 84; 2 Am. Crim. Rep. 213; 3 Am. Crim. Rep. 428; 4 Am. Crim. Rep. 457; 5 Am. Crim. Rep. 307, note 317, 7 Am. Crim. Rep. 266, 269; 8 Am. Crim. Rep. 574, 590; 11 Am. Crim. Rep. 525, 530. 4 Words & Phrases, 3635-3646. 2[Ala.] Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193, 2 So. 854, 7 Am. Crim. Rep. 266, 1887. [Conn.] State v. Johnson, 40 Conn. 136, 1873; Andersen v. State, 43 Conn. 514, 21 Am. Rep. 669, 1876. [Del.] State v. Windsor, 5 Harr. (Del.) 512, 1854. [Ill.] Dacey v. People, 116 Ill. 555, 6 N. E. 165, 6 Am. Crim. Rep. 461, 1886. [Ind.] Stevens v. State, 31 Ind. 485, 99 Am. Dec. 634, 1869; Wartner v. State, 102 Ind. 51,1 N. Crim. L. Vol. I1.—386, “Dec. 458, 1844. E. 65, 5 Am. Crim. Rep. 178, 1884; Conway v. State, 118 Ind. 482, 21 N. E. 285, 1888. [Iowa] State v. Felter, 25 Iowa, 67, 1868; State v. Mewher- ter, 46 Iowa, 88, 1877. [Ky.] Graham v. Com. 16 B. Mon. 587, 1855. [Mass.] Com. v. Rogers, 7 Met. 500, 41 Am. [Mont.] State v. Peel, 23 Mont. 358, 75 Am. St. Rep. 529, 59 Pac. 169, 1899; State v. Keerl, 29 Mont. 508, 101 Am. St. Rep. 379, 75 Pac. 362, 1904. [N. H.] State v. Pike, 49 N. H. 399, 6 Am. Rep. 533, 1870; State v. Jones, 50 N. H. 369, 9 Am. Rep. 242, 1871. [Ohio] Blackburn v. State, 23 Ohio St. 146, 1872. [Or.] State v. Mur- ray, 11 Or. 413, 5 Pac. 55, 1884; State v. Zorn, 22 Or. 591, 30 Pac. 317, 1892; State v. Lauth, 46 Or. 342, 114 Am. St. Rep. 873, 80 Pac. 660, 1905. [Pa.] Com. v. Mosler, 4 Pa. 264, 1846; Ortwein v. Com. 76 Pa. 414, 18 Am. Rep. 420, 1 Am. Crim. Rep. 297, 1875; Taylor v. Com. 109 Pa. 262, 1885. [Va.] Dejarnette v. Com. 75 Va. 867, 1881. As to insanity as a defense to a prosecution for crime, see notes in 386 Am. Dec. 402-410; and 76 Am. St. Rep. 83-97. Mere belief that act is justified will not constitute a defense. Com. v. Wireback, 190 Pa. 138, 70 Am. St. Rep. 625, 42 Atl. 542, 1899. 562 responsibility attaches in law,? CRIMINAL LAW. [§ 404 and, such state of mind being shown, it furnishes a complete defense to a prosecution for the erime charged. This rule includes hallucination* and moral insanity,’ where they are of the character to deprive of power to control actions and of knowledge of right and wrong as to the particular act; otherwise not.® § 405. Instigation and solicitation. The fact that a person acts under the authority and direction of another, or is the agent or employee of such other, does not relieve from 8See supra, §§ 73-83 where the subject is sufficiently treated. 4[Eng.] M’Naghten’s Case, 10 Clark. & F. 200, 8 Scott, N. R. 595, 1 Car. & K. 130, note. [Ala.] Bos- well v. State, 63 Ala. 307, 35 Am. Rep. 20, 1879; Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193, 2 So. 854, 7 Am. Crim. Rep. 266, 1887. [Ark.] Bolling v. State, 54 Ark. 588, 16 S. W. 658, 1891; Smith v. State, 55 Ark. 259, 18 S. W. 237, 1891; Green v. State, 64 Ark. 523, 43 S. W. 973, 1898. [Cal.] People v. Hubert, 119 Cal. 216, 63 Am. St. Rep. 72, 51 Pac. 329, 1897. [Ga.] Roberts v. State, 3 Ga. 310, 1847; Carr v. State, 96 Ga. 284, 22 S. £. 570, 10 Am. Crim. Rep. 829, 1895; Graham v. State, 102 Ga. 654, 29 S. E. 582, 1897; Flanagan v. State, 103 Ga. 619, 30 S. E. 550, 11 Am. Crim. Rep. 525, 1898; Taylor v. State, 105 Ga. 746, 31 S. E. 764, 1898. [Mass.] Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, 1844. [Miss.] Cun- ningham v. State, 56 Miss. 269, 31 Am. Rep. 360, 1879; Grissom v. State, 62 Miss. 169, 1884; Ford v. State, 73 Miss. 734, 35 L.R.A. 117, 19 So. 665, 1896. [Neb.] Thurman v. State, 32 Neb. 220, 49 N. W. 338, 1891. [Nev.] State v. Lewis, 20 Nev. 333, 22 Pac. 241, 8 Am. Crim. Rep. 574, 1889. [N. H.] State v. Jones, 50 N. H. 369, 9 Am. Rep. 242, 1871. [N. J.] State v. Spencer, 21 N. J. L. 204, 1846. [N. Y.] People v. Taylor, 138 N. Y. 398, 34 N. E. 275, 1893. [Pa.] Com. v. Mosler, 4 Pa. 264, 1846; Com. v. Wireback, 190 Pa. 138, 70 Am. St. Rep. 625, 42 Atl. 542, 1899. [Tex.] Riley v. State, — Tex. Crim. Rep. —, 44 8. W. 498, 1898. Insane delusion as a defense to a prosecution for crime, see note in 63 Am. St. Rep. 100-108. —Imaginary facts which, if real, are not such as to justify the act, will not constitute a defense of in- sane delusion. [Col.] People v. Hu- bert, 119 Cal. 216, 63 Am. St. Rep. 72, 51 Pac. 329, 1897. [N. Y.] Peo- ple v. Taylor, 188 N. Y. 398, 34 N. E. 275, 1893. [Tex.] Merritt v. State, 39 Tex. Crim. Rep. 70, 45 S. W. 21, 11 Am. Crim. Rep. 518, 1898. 5 Moral insanity as a defense is so liable to abuse that the utmost care and circumspection of trial court are required. See Scott v. Com. 4 Met. 227, 83 Am. Dec. 461, 1863. —In South Carolina no defense to crime. See State v. Levelle, 34 S. C. 120, 27 Am. St. Rep. 799, 13 S. E. 319, 1891, —Mere moral obliquity of percep- tion, or mere perversion of moral sense, or mere individual belief in right and wrong, do not constitute a defense to an accusation of crime. Com. v. Wireback, 190 Pa. 138, 70 Am. St. Rep. 625, 42 Atl. 542, 1899. 6 [Ind.] Goodwin v. State, 96 Ind. 576, 1884. [Iowa] State v. Mewher- ter, 46 Iowa, 88, 1877. [Mass.] Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, 1844. [Miss.] Bovard v. State, 30 Miss. 600, 1856; Cunningham v. State, 56 Miss. 269, 31 Am. Rep. 360, 1879. [Mo.] State v. Erb, 74 Mo. 199, 1881. [N. J.] State v. Spencer, 21 N. J. L. 196, 1846; Genz v. State, 59 N. J. L. 488, 59 Am. St. Rep. 619, 37 Atl. 69, 1896; Mackin v. State, 59 N. J. L. 495, 36 Atl. 1040, 1896. [N. Y.] Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731, 1873. [Va.] Dejarnette v. Com. 75 Va. 867, 1881. § 406] DEFENSES. 563 responsibility for criminal acts,’ unless done under such coer- cion, compulsion, and duress as the law recognizes as reliev- ing from responsibility for criminal acts;* and the fact that a criminal act is done on the encouragement or solicitation of another will not constitute a defense in a prosecution for such act.2 § 406. Intoxication. The general rule is that drunken- ness is no excuse for crime when the offense consists merely in doing a criminal act, without regard to the intention." The 1Alt v. State, 88 Neb. 259, 35 L.R.A.(N.S.) 1212, 129 N. W. 432, 1911. See supra, § 376. As to assent and consent to crimi- nal act relieving from liability, see supra, § 381. 2See supra, § 383. 8 State v. Chappell, 179 Mo. 324, 78 S. W. 585, 1904. As to solicitations to commit crime, see supra, § 218. 1[Fed.] United States v. Rouden- bush, Baldw. 514, 517, Fed. Cas. No. 16,198, 1832. [Ala.] Beasley v. State, 50 Ala. 149, 20 Am. Rep. 292, 1874; Springfield v. State, 96 Ala. 81, 38 Am. St. Rep. 85, 11 So. 250, 1891. [Ark.] Chrisman v. State, 54 Ark. 283, 26 Am. St. Rep. 44, 15 S. W. 889, 1891. [D. C.] Harris v. United States, 8 App. D. C. 20, 36 L.R.A. 465, 1896. [Fla.] Garner v. State, 23 Fla. 113, 29 Am. St. Rep. 232, 9 So. 835, 1891. [Ind.] Dawson vy. State, 16 Ind. 428, 79 Am. Dec. 439, 1861. [Kan.] State v. O’Neil, 51 Kan. 651, 24 L.R.A. 555, 33 Pac. 287, 1893; State v. Rumble, 81 Kan. 16, 25 L.R.A.(N.S.) 376, 105 Pac. 1, 1909. [La.] State v. Trivas, 32 La. Ann. 1086, 36 Am. Rep. 293, 1880. {Mo.] State v. Carter, 98 Mo. 177, 11S. W. 624, 1886. [N. J.] Warner v. State, 56 N. J. L. 686, 44 Am. St. Rep. 415, 29 Atl. 505, 9 Am. Crim. Rep. 526, 29, 1894. [N. Y.] People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484, 1858; Flanigan v. People, 86 N. Y. 554, 40 Am. Rep. 556, 1881. [Pa.] Keenan v. Com. 44 Pa. 55, 84 Am. Dec. 414, 1862. [Tex.] Erwin v. State, 10 Tex. App. 700, 1881; Evers v. State, 31 Tex. Crim. Rep. 318, 18 L.RB.A, 421, 37 Am. St. Rep. 811, 818, 20 S. W. 744, 1892. [W. Va.] State v. Shores, 31 W. Va. 491, 13 Am. St. Rep. 875, 7 8. E. 413, 1888. As to drunkenness as a defense to a charge of crime, see notes in 72 Am. Dec. 493; and 40 Aim. Rep. 560- 570. : As to what intoxication will ex- cuse crime, see monographic note in 36 L.R.A. 465-484. Voluntary drunkenness cannot ex- cuse or mitigate a crime is held in State v. Carter, 98 Mo. 177, 11S. W. 624, 1889. See State v. Bundy, 24 S. C. 439, 58 Am. Rep. 266, 1885. But this doctrine is not accepted by other courts, which allow drunk- enness to be shown to reduce the grade of the offense, where malice or intent are involved. See Engel- hardt v. State, 88 Ala. 100, 7 So. 154, 1889. That drunkenness may have ren- dered accused incapable of knowing the nature and quality of his act, or to distinguish between right and wrong, does not constitute a defense in Kansas. See State v. Rumble, 81 Kan. 16, 25 L.R.A.(N.S.) 376, 105 Pac. 1, 19 a. & E. Ann. Cas. 261, 1909. One voluntarily putting himself in condition to have no control over his actions must be held to intend the consequences. Roberts v. People, 19 Mich. 417, 1870. One becoming voluntarily so drunk he does not know what he is doing, and who, without provocation, as- saults and kills another, is guilty of murder in the second degree. Hens- lee v. State, 97 Ark. 108, 133 S. W. 172, 1910. —Voluntary intoxication, as dis- 564 CRIMINAL LAW. [§ 406 fact that a person is intoxicated at the time of the commission of the crime charged furnishes no defense to a prosecution and punishment for such crime, unless it is so excessive, or has continued for such a length of time, as to dethrone the reason, overcome the power to control his actions, and destroy the power — for the time being at least — to distinguish be- tween right and wrong in relation to the particular act charged, or to form a criminal intent, or to entertain malice.* tinguished from fixed or settled frenzy or insanity, does not excuse crime which, but for the intoxication, would be criminal, although the intoxica- tion is such as to render the sub- ject unconscious, for the time being, of what he is doing, where the crime consists simply in the doing of the act. Garner v. State, 28 Fla. 113, 29 Am. St. Rep. 232, 9 So. 835, 1891. 2[Ala.] Walker v. State, 85 Ala. 7, 7 Am. St. Rep. 17, 4 So. 686, 1887. {Ind.] Booher v. State, 156 Ind. 435, 54 L.R.A. 391, 60 N. E. 156, 1901. [Vt.] State v. Hanlon, 62 Vt. 334, 19 Atl. 773, 1890. See note in 40 Am. Rep. 560-570. Compare: State v. Rumble, 81 Kan. 16, 25 L.R.A.(N.S.) 376, 105 Pac. 1, 1909. As to effect of intoxication on lia- bility for crime, see supra, §§ 65—- 72. As to when intoxication will ex- cuse crime, see monographic note in 36 L.R.A. 465-484. As to when intoxication lessens ac- countability for crime, see notes in 4 Am. St. Rep. 21; and 25 L.R.A. (N.S.) 376. Evidence of intoxication is admis- sible as affecting intent in all those cases where a criminal intent is a necessary element. [Fed.] United States v. Roudenbush, Baldw. 514, 517, Fed. Cas. No. 16,198, 1832. [Ala.] Beasley v. State, 50 Ala. 149, 20 Am. Rep. 292, 1874; Chatham v. State, 92 Ala. 47, 9 So. 607, 1891. [Ark.] Wood v. State, 34 Ark. 341, 36 Am. Rep. 13, 1879; Casat v. State, 40 Ark. 511, 1883; Chrisman v. State, 54 Ark. 283, 26 Am. St. Rep. 44, 15 S. W. 889, 1891. [Fla.] Garner v. State, 28 Fla. 113, 29 Am. St. Rep. 232, 9 So. 835, 1891. [Ind.] Bailey v. State, 26 Ind. 422, 1866; Rogers v. State, 33 Ind. 543, 1870. ([Ky.] Shannahan v. Com. 8 Bush, 463, 8 Am. Rep. 465, 1871. [N. D.] State v. Koener, 8 N. D. 292, 73 Am. St. Rep. 752, 78 N. W. 981, 11 Am. Crim. Rep. 570, 1899. [Pa.] Keenan v. Com. 44 Pa. 55, 84 Am. Dec. 414, 1862. [Tex.] Loza v. State, 1 Tex. App. 488, 28 Am. Rep. 416, 1877; Reagan v. State, 28 Tex. App. 227, 19 Am. St. Rep. 833, 12 S. W. 601, 1889. Compare: O’Herrin v. State, 14 Ind. 420, 1860; Dawson v. State, 16 Ind. 428, 429, 79 Am. Dec. 439, 1861. “Where the offense consists of an act committed with a particular in- tent, when a specific intent is the essence of the crime, drunkenness, as affecting the mental state and condi- tion of the accused, becomes a proper subject to be considered by the jury in deciding the question of intent.” Chatham v. State, 92 Ala. 47, 9 So. 607, 1890. When and how far drunkenness excuses a crime depends upon its de- gree and its effect upon the mind. Golliher v. Com. 2 Duv. 163, 87 Am Dec. 493, 1865. See also note in 25 LR.A.(N.S.) 376. 3 Malice or intent involved drunk- enness may be shown to reduce the grade of the offense. [Ala.] Engel- hardt v. State, 88 Ala. 100, 7 So. 154, 1889. [Ind.] Aszman v. State, 123 Ind. 347, 8 L.R.A. 33, 24 N. E. 123, 1890. [Ky.] Buckhannon v. Com. 86 Ky. 110, 5 S. W. 358, 1887. [Mich.] People v. Murray, 72 Mich. 10, 40 N. W. 29, 1888. If mind still acts, its reasoning and discriminating faculties still re- main, a state of partial intoxica- iff oP § 407] DEFENSES. 565 § 407. Irresistible impulse; “dementia Americana.” Regarding “irresistible impulse,” as distinguished from irre- sponsible insanity or hallucination, constituting a valid defense to a charge of crime, there is a conflict} in the authorities. The cases may properly be separated into two general classes: 1. Irresistible impulse of violent passion destroying frea agency.—An “‘irresistible impulse,” as recognized by some courts as a defense to a charge of crime, and as popularly under- stood, has been well defined to be as an impulse produced by and growing out of some mental disease affecting the volition, as distinguished from the perceptive powers, so that the per- son afflicted, while able to understand the nature and conse- quence of the act charged against him, and to perceive that it is wrong, is unable, because of such mental disease, to resist the impulse to do it.’ tion affords no ground of a favorable presumption of an honest or innocent intention in cases where a dishonest and criminal intention would be fair- ly inferred from the commission of the same act when sober. United States v. Roudenbush, Baldw. 514, 517, Fed. Cas. No. 16,198, 1832; Wood v. State, 34 Ark. 341, 36 Am. Rep. 13, 1879. “When the act done is innocent in itself, and criminal only when done with a corrupt or malicious motive, a jury may, from intoxication, pre- [. sume that there was a want of crimi- nal intention; that the reasoning faculty, the power of discrimination between right and wrong, was lost in the excitement of the occasion.” United States v. Roudenbush, Baldw. 514, 517, Fed. Cas. No. 16,198, 1832. 1Causes of conflict in regard to the doctrine of “irresistible impulse” as a defense in a prosecution for crime are pointed out in a note in 27 LR.A.(N.S.) 461-466. Much of the diversity of opinion, or difference in modes of expression upon this subject, arise from a fail- ure to discriminate between that “ir- resistible impulse” produced by an insane delusion or mental disease which has progressed to the extent of dethroning the reason and judg- ment and destroying the power of the accused to distinguish between ry This class of mental infirmity or “in- right and wrong as to the act he is committing, and that uncontrollable impulse which is alleged to arise from mental disease, and to coexist with the capacity to comprehend the nature and wrongfulness of the act, but which may, with equal reason and consistency, be attributable to moral depravity and criminal per- versity. Whitehouse, J., in State v. Knight, 95 Me. 467, 55 L.R.A. 373, 50 Atl. 276, 1901. 2 Note in 27 L.R.A.(N.S.) 461. See Del.] State v. Windsor, 5 Harr. (Del.) 512, 1854; State v. Brown, 1 Houst. Crim. Rep. (Del.) 539. [Ind.] Stevens v. State, 31 Ind. 485, 99 Am. Dec. 634, 1869; Bradley v. State, .31 Ind. 492, 1869; Sawyer v. State, 35 Ind. 80, 1871; Goodwin v. State, 96 Ind. 550, 1884; Walker v. State, 102 Ind. 502, 1 N. E. 856, 1885; Grubb v. State, 117 Ind. 277, 20 N. E. 257, 725, 1888. [Ky.] Graham v. Com. 16 B. Mon. 587, 1855; Scott v. Com. 4 Met. (Ky.) 227, 83 Am. Dec. 461, 1863; Smith v. Com. 1 Duv. 224, 1864; Kriel v. Com. 5 Bush, 362, 1869. [Mass.] Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, 1844. [Mo.] Baldwin v. State, 12 Mo. 223, 1848; State v. Kotovsky, 74 Mo. 247, 1881 (two of judges holding knowledge of right from wrong, but. incapable from derangement of mind from exercising the will, to destroy 566 CRIMINAL LAW. [§ 407 sanity” is to be distinguished from emotional® or moral* in- responsibility). [N. H.] State v. Bartlett, 43 N. H. 224, 80 Am. Dee. 154, 1861; State v. Pike, 49 N. H. 399, 6 Am. Rep. 533, 1870. [Ohio] Clark v. State, 12 Ohio, 483, 40 Am. Dec.. 481, 1843; Blackburn v. State, 23 Ohio St. 146, 1872. [Pa.] Com. v. Mosler, 4 Pa. 264, 1846; Brown v. Com. 78 Pa, 122, 1875; Sayers v. Com. 88 Pa. 291, 1879; Coyle v. Com. 100 Pa. 573, 45 Am. Rep. 397, 1882; Com. v. Freth, 3 Phila. 105, 1858. See notes in 99 Am. Dec. 639; 18 L.R.A. 226; 4 L.R.A.(N.S.) 154; 5 L.R.A.(N.S.) 809; 10 L.R.A.(NS.) 1032; and 27 L.R.A.(N.S.) 461. Insane impulse controlling judg- ment and will relieves from criminal responsibility. Stevens v. State, 31 Ind. 485, 99 Am. Dec. 634, 1869; Grubb v. State, 117 Ind. 277, 20 N. E. 257, 725, 1888. Whether insane impulse is irre- sistible is a question for the jury to determine. State v. Jones, 50 N. H. 369, 9 Am. Rep. 242, 1871. 3 [Ind.] Goodwin v. State, 96 Ind. 550, 1884. [Kan.] State v. Buffing- ton, 71 Kan. 804, 4 L.R.A.(N.S.) 154, 81 Pac. 465, 1905. [Ky.] McCarty v. Com. 114 Ky. 620, 71 S. W. 656, 1903. [Or.] State v. Hansen, 25 Or. 391, 35 Pac. 976, 36 Pac. 296, 1894; State v. Lauth, 46 Or. 342, 114 Am. St. Rep. 873, 80 Pac. 660, 1905. [Wis.] Johnson v. State, 129 Wis. 146, 5 L.R.A.(N.S.) 809, 108 N. W. 55, 9 A. & E. Ann, Cas. 923, 1906; Duthey v. State, 131 Wis. 178, 10 L.R.A.(N.S.) 1032, 111 N. W. 222, 1907. See infra, foot-note 7, this section. As to words of reproach, however abusive and insulting, not being sufficient provocation to _ relieve slayer from responsibility, see full collection of cases in note in 4 L.R.A. (N.S.) 154-169. Emotional insanity, so far as an- ger contributing to the cause there- of, see full collection of cases in 10 L.R.A.(N.S.) 1082-1037. “Emotional insanity, while occa- sionally used as synonymous with irresistible impulse, is not properly applied to the state of mind of one who, while in possession of his ordi- nary faculties, and unaffected by any mental disease, gives way to his pas- sions to such an extent that he be- comes a temporary maniac. Strictly speaking, this is not insanity at all, from the legal standpoint, which re- quires the existenze of some mental disease.” See note in 27 L.R.A.(N.S.) 462; State v. Knight, 95 Me. 467, 55 L.R.A. 373, 50 Atl. 276, 1901. #[Conn.] Andersen v. State, 43 Conn. 514, 21 Am. Rep. 669, 1876. [Miss.] Smith v. State, 95 Miss. 786, 27 L.R.A.(N.S.) 461, 49 So. 945, 1910. [Or.] State v. Lauth, 46 Ur. 342, 114 Am. St. Rep. 873, 80 Pac. 660, 1905. Moral insanity no defense unless it subjects the intellect and controls the will. Taylor v. Com. 109 Pa. 262, 1885. “Moral insanity is sometimes used to denote such mental disease as destroys the ability to distinguish between right and wrong as to a particular act, and sometimes to de- note a mere perversion of the moral sense; but is erroneously used to denote irresistible impulse.” See note in 27 L.R.A. (N.S.) 462; State v. Knight, 95 Me. 467, 55 L.R.A. 373, 50 Atl. 276, 1901. —Arising from overwhelming de- struction of mind, rendering party capable of governing his actions, is a complete defense to a charge of crime. Scott v. Com. 4 Met. (Ky.) 227, 83 Am. Dec. 461, 1863. Moral mania should be considered by juury, when satisfied of its exist- ence, in determining the degree of the crime. Andersen v. State, 43 Conn, 514, 21 Am. Rep. 669, 1876. Moral or emotional insanity, as an excuse for crime, has been expressly repudiated in all cases where made. Wolverton, C. J., in State v. Lauth, 46 Or. 342, 114 Am. St. Rep. 873, 80 Pac. 660, 1905. See [Ind.] Goodwin v. State, 96 Ind. 550, 1884. [Ky.] McCarty v. Com. 114 Ky. 620, 71 S. W. 656, 1903. [Or.] State v. Han- sen, 25 Or. 391, 35 Pac. 976, 36 Pac. 296, 1894. § 407] DEFENSES. 567 sanity, insane delusion,’ morbid impulse,® passion,” or over- whelming emotion® not growing out of or connected with a 5 As to insane delusion relieving from criminal responsibility, see cases in note in 63 Am, St. Rep. 100- 108. Insane delusion, completely, pos- sessing accused, who is perfectly sane on any other subject, he must be judged through the facts with re- gard to the delusion, and if they would have constituted a defense if real, he is not responsible, other- wise he is responsible. People v. Hubert, 119 Cal. 216, 63 Am. St. Rep. 72, 51 Pac. 329, 1897. Uncontrollable impulse springing from insane delusion, held not to be a defense to a charge of crime, in State v. Pagels, 92 Mo. 300, 4 S. W. 931, 1887. 6 Morbid impulse arising from dis- ease of mind rendering party in- capable of governing his actions is a defense to a charge of crime. Scott v. Com. 4 Met. (Ky.) 227, 83 Am. Dec. 461, 1863. —May drive to desperate or homi- cidal act, but does not relieve from responsibility unless the product of disease of mind destroying the power to distinguish right from wrong. United States v. Young, 25 Fed. 710, 1885; State v. Bundy, 24 S. C. 439, 58 Am. Rep. 263, 1885. Purpureal fever prompting a moth- er, in a violent impulse, to throw her child overboard, she was held not to be responsible for the crime in United States v. Hewson, Brun- ner, Col. Cas. 532, Fed. Cas. No. 15,360, 1844. 7 State v. Buffington, 71 Kan. 804, 4 L.R.A.(N.S.) 154, 81 Pac. 465, 1905. See supra, footnote 3, this sec- tion. As to heat of passion mitigating degree of homicide, see notes in 4 L.R.A.(N.S.) 154, and 5 L.R.A.(N.S.) 809-829. Heat of passion reduces homicide from murder to manslaughter. John- son v. State, 129 Wis. 146, 5 L.R.A. (N.S.) 809, 108 N. W. 55,9 A. & E. Ann. Cas. 928, 1906; Duthey v. State, 131 Wis. 178, 10 L.R.A.(N.S.) 1082, 111 N. W. 222, 1907. See also cases cited in notes in 5 L.R.A.(N.S.) 809, and 10 LRA. (N.S.) 1032. —Where sudden and violent may rebut presumption of malice and re- duce homicide from murder to man- slaughter. Johnson v. State, 129 Wis. 146, 5 L.R.A.(N.S.) 809, 108 N. W. 55, 9 A. & E. Ann. Cas. 923, 1906. See [Ala.] Smith v. State, 83 Ala. 26, 3 So. 551, 1887. [Cal.] Peo- ple v. Freel, 48 Cal. 436, 1874. [Ga.] Stokes v. State, 18 Ga. 17, 1854; Gann v. State, 30 Ga. 67, 1860; Mc- Duffie v. State, 90 Ga. 786, 17 S. E. 105, 1892; Battle v. State, 92 Ga. 465, 17 8S. E. 861, 1898. [Ind.] Ex parte Moore, 30 Ind. 197, 1868; Mur- phy v. State, 31 Ind. 511, 1869. [Iowa] State v. Decklotts, 19 Iowa, 447, 1865; State v. Hunter, 118 Towa, 686, 92 N. W. 872, 1902. [Ky.] Stovall v. Com. 4 Ky. L. Rep. 442, 1882; Bennyfield v. Com. 15 Ky. L. Rep. 321, 22 S. W. 1020, 1893. [Mich.] Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, 782, 1862. [Mo.] State v. Gassert, 4 Mo. App. 44,1877. [N. Y.] People v. Johnson, 1 Park. Crim. Rep. 291, 1851. [Pa.] Abernethy v. Com. 101 Pa. 322, 1882. See full collection of authorities in 5 L.R.A.(N.S.) 809-829. 8See Duthey v. State, 131 Wis. 178, 10 L.R.A.(N.S.) 1032, 111 N. W. 222, 1907. Compare: State v. Lauth, 46 Or. 342, 114 Am. St. Rep. 873, 80 Pac. 660, 1905, Emotional insanity, so far as an- ger is a controlling cause thereof, as constituting a defense to a prosecu- tion for crime, see note in 10 L.R.A. (N.S.) 1032. Judge Dillon’s definition—“Irregu- lar equity.”—Judge Dillon, in one of his lectures before Yale University, said that “in the occasional cases where the offender has been almost more sinned against than sinning, but which cannot be anticipated or expected from the Criminal Code, and where the offender is conse- quently technically guilty and a judge would feel bound so to de- CRIMINAL LAW. [§ 407 568 disease of the mind. Thus a paroxysm of jealousy or sudden anger or frenzy of temper provoked or superinduced by the in- telligence that the accused had been abandoned by his mistress, the object of his lustful affections,—he being otherwise in pos- session of his mental faculties, unimpaired by disease, or un- balanced by heredity,—will not relieve from criminal responsi- bility.® 2. Irresistible impulse the product of a diseased mind.— The doctrine that irresistible impulse will relieve from respon- sibility for crime one who is able to distinguish right from wrong in regard to the special transaction involved is rejected by a large number of cases.” cide, the jury administer an irregular equity, not capable of being defined and formulated, nor of a nature to be expressly sanctioned by the law- giver, but which satisfies the judg- ment and conscience of the communi- ty without overturning the criminal statute, which still stands intact.” 9State v. Lauth, 46 Or. 342, 114 Am, St. Rep. 873, 80 Pae. 660, ‘1905. 10 [Eng.] Reg. v. Higginson, 1 Car. & K. 129; Reg. v. Stokes, 3 Car. & K. 185; Rex v. Oxford, 5 Car. & P. 168; Reg. v. Oxford, 9 Car. & P. 525; Reg. v. ‘Barton, 3 Cox, C. C. 275; Reg. v. Davies, 1 Fost. & F. 69; Reg. v. Richards, 1 Fost. & F. 87; Reg. v. Haynes, 1 Fost. & F. 666; Reg. v. Burton, 3 Fost. & F. 772; Reg. v. Townley, é Fost. & F. 839; Arnold’s Trial, 16 How. St. Tr. 764; Ferrer’s Trial, 19 How, St. Tr. 947, [Fed.] United States v. Holmes, 1 Cliff. 98, Fed. Cas. No. 15,382, 1858; United States v. Young, 25 Fed. 710, 1885; United States v. Faulkner, 35 Fed. 730, 1888. [Ark.] Williams v. State, 50 Ark. 511, 9 S. W. 5, 1888; Bolling v. State, 54 Ark. 588, 16 S. W. 658, 1891; Smith v. State, 55 Ark. 259, 18 S. W. 237, 1891; Green v. State, 64 Ark. 528, 48 8S. W. 978, 1898. [Cal.] People v. Hoin, 62 Cal. 120, 45 Am. Rep. 651, 1882; People v. Ward, 105 Cal. 335, 388 Pac. 945, 1894; People v. McCarthy, 115 Cal. 255, 46 Pac. 1073, 1896; People v. Hubert, 119 Cal. 216, 68 Am. St. Rep. 73, 51 Pac. 329, 1897; People v. Barthleman, 120 Cal. 7, 52 Pac. This class of cases holds that in 112, 1898; People v. Owens, 123 Cal. 482, 56 Pac. 251, 1899; People v. Methever, 132 Cal. 326, 64 Pac. 481, 1901. [Ga.] Roberts v. State, 3 Ga. 310, 1847; Choice v. State, 31 Ga. 424, 1860; Anderson v. State, 42 Ga. 9, 1871; Fogarty v. State, 80 Ga. 450, 5 S. Ki. 782, 1888. [Ind.] State v. Stickney, 41 Iowa, 232, 1872; Gue- tig v. State, 66 Ind. 94, 32 Am. Rep. 99, 1879. [Kan.] State v. Nixon, 32 Kan. 205, 4 Pac. 159, 5 Am. Crim. Rep. 307, 1884; State v. Mowry, 37 Kan. 369, 15 Pac. 282, 1887; State v. Yarborough, 39 Kan. 581, 18 Pac. 474, 1888. [La.] State v. Coleman, 27 La. Ann. 691, 1875. [Me.] State v. Knight, 95 Me. 467, 55 L.R.A. 373, 50 Atl. 276, 1901. [Md.] Spencer v. State, 69 Md. 28, 13 Atl. 809, 1888. [Mich.] People v. Slack, 90 Mich. 448, 51 N. W. 5338, 1892. [Minn.] State v. Scott, ‘41 Minn. 365, 43 N. W. 62, 1889. [Miss.] Cunning- ham v. State, 56 Miss. 269, 31 Am. Rep. 360, 1879. [Mo.] State v. Hundley, 46 Mo. 414, 1870; State v. Erb, 74 Mo. 199, 1881; State v. Kotovsky, 74 Mo. 247, 1881. [N. J.] Graves v. State, 45 N. J. L. 347, 46 Am. Rep. 778, 1883. [N. Y.] Flana- agan v. People, 52 N. Y. 467, 11 Am. Rep. 731, 1873; Walker v. Peopie, 88 N. Y. 81, 1882; People v. Car- penter, 102 N. Y. 238, 6 N. E. 584, 1886; People v. Taylor, 138 N. Y. 398, 34 N. E. 278, 1893; People v. Montgomery, 13 Abb. Pr. N. 8. 207, 1871; People v. Waltz, 50 How. Pr. 204, 1874; People v. Coleman, 1 § 407] order to constitute irresistible DEFENSES. 569 impulse a defense to 2 charge of crime, it must be the result of a mental disease of such a character as to overwhelm, for the time being, the reason and judgment, and to destroy the power to distinguish between right and wrong as to the particular N. Y. Crim, Rep. 1, 1881. [N. C.] State v. Brandon, 53 N. C. (8 Jones, L.) 468, 1862; State v. Potts, 100 N. C. 457, 6 S. E. 657, 1888. [Or.] State v. Lauth, 46 Or, 342, 114 Am. St. Rep. 873, 80 Pac. 660, 1905. [Pa.] Com. v. Mosler, 4 Pa. 264, 1846; iuyynch v. Com. 77 Pa. 205, 1874. [S. C.] State v. Bundy, 24 S. C. 489, 58 Am. Rep. 262, 263, 1885; State v. Alexander, 30 8. C. 74, 14 Am. St. Rep. 879, 8 8S. E. 440, 1888; State v. Levelle, 34 8. C. 120, 27 Am. St. Rep. 799, 13 8. E. 319, 1891. [Tex.] Leache v. State, 22 Tex. App. 279, 58 Am. Rep. 638, 3 S. W. 539, 1886. [Va.] Dejarnette v. Com. 75 Va. 867, 1881. [W. Va.] State v. Harrison, 36 W. Va. 729, 18 L.R.A. 224, 15 S. E. 982, 9 Am. Crim. Rep. 626, 1892. See notes in 31 Am. Rep. 368; 32 Am. Rep. 108; 18 L.R.A. 224; 4 L.R.A.(N.S.) 154; 5 LR.A.(N.S.) 809; 10 L.R.A.(N.S.) 1032; and 27 L.R.A.(N.S.) 461. In Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731, 1873, the New York court of appeals said: “We are asked in this case to introduce a new element into the rule of criminal responsibility in cases of alleged in- sanity, and to hold that the power of choosing right from wrong is as essential to legal responsibility as the capacity of distinguishing be- tween them, and that the absence of the former is consistent with the presence of the latter. The argu- ment proceeds upon the theory that there is a form of insanity in which the faculties are so disordered and deranged that a man, though he perceives the moral quality of his acts, is unable to control them, and is urged by some mysterious pres- sure to the commission of acts, the. consequences of which he anticipates, but cannot avoid. Whatever medical or scientific authority there may be act committed.™ for this view, it has not been ac- cepted by courts of law. The vague- ness and uncertainty of the inquiry which would be opened, and the manifest danger of introducing the limitations claimed into the rule of responsibility, in cases of crime, may well cause courts to pause before assenting to it. Indulgence in evil passions weakens the restraining power of the will and conscience, and the rule suggested would be the cover for the commission of crime and its justification. The doctrine that a criminal act may be excused upon the notion of an irresistible impulse to commit it, where the offender has the ability to discover his legal and moral duty in respect to it, has no place in the law.” See also State v. Knight, 95 Me. 467, 55 L.R.A. 373, 50 Atl. 276, 1901. 11 [Eng.] Reg. v. Oxford, 9 Car. & P. 525. [Ala.] Parsons v. State, 81 Ala. 577, 60 Am. Rep. 193, 2 So. 854, 7 Am. Crim. Rep. 266, 1887. [Cal.] People v. Hoin, 62 Cal. 120, 45 Am. Rep. 651, 1882. [Conn] State v. Johnson, 40 Conn. 136, 1873. [Ill] Hopps v. People, 31 Ill. 385, 83 Am. Dec. 231, 1863; Chase v. People, 40 Ill. 352, 1866; Dunn v. People, 109 Ill. 643, 4 Am. Crim. Rep. 52, 1884; Dacey v. People, 116 Ill. 555, 6 N. E. 165, 6 Am. Crim. Rep. 461, 1886; Meyer v. People, 156 Ill. 126, 40 N. E. 490, 1895. [Iind.] Stevens v. State, 31 Ind. 485, 99 Am. Dec. 634, 1869; Bradley v. State, 31 Ind. 492, 1869; Goodwin v. State, 96 Ind. 550, 1884; Conway v. State, 118 Ind. 482, 21 N. E. 285, 1888; Plake v. State, 121 Ind. 433, 16 Am. St. Rep. 408, 23 N. E. 273, 1890. [Iowa] State v. Felter, 25 Iowa, 67, 1868; State: v. Geddis, 42 Iowa, 264, 1875. [Ky.] Scott v. Com. 4 Met. (Ky.) 227, 88 Am. Dec. 461, 1863; Smith v. Com. 1 Duv, 224, 1864; Kriel CRIMINAL LAW. [§ 408 570 § 408. Motive of prosecution. As to whether or not an act charged is criminal, and subjects the party to punishment, depends upon the nature of the act and the intent of the party charged. The motives of the prosecuting witness in instituting and pressing a criminal charge are not a relative issue, consti- tute no defense,’ and will not be inquired into.? § 409. Necessity and self-defense. Self-preservation is the first law of nature, and the law of man justifies and ex- cuses, under circumstances of compulsion rendering it neces- sary, the taking of life in self-defense,’ or the taking of property v. Com. 5 Bush, 362, 1869. [Me.] State supra, §§ 3, 128 and infra, §§ 612 v. Knight, 95 Me. 467, 55 LRA. 373, 50 Atl. 276, 1901. [Mass.] Com. v. Rogers, 7 Met. 500, 41 Am. Dec. 458, 1844. [Mich.] People v. Durfee, 62 Mich. 487, 29 N. W. 109, 1886. [Miss.] Cunningham v. State, 56 Miss. 269, 31 Am. Rep. 260, 1879; Ford v. State, 73 Miss, 734, 35 L.R.A. 117, 19 So. 665, 1896; Smith v. State, 95 Miss. 786, 27 L.R.A.(N.S.) 461, 49 So. 945, 1910. [Neb.] Burgo v. State, 26 Neb. 639, 42 N. W. 701, 1889. [N. Y.] Flanagan v. People, 52 N. Y. 467, 11 Am. Rep. 731, 1873; People v. Sprague, 2 Park. Crim. Rep. 48, 1849. [Okla.] Maas v. Ter- ritory, 10 Okla. 714, 53 L.R.A. 814, 63 Pac. 960, 1901. [Pa.] Ortwein v. Com. 76 Pa. 414, 18 Am. Rep. 420, 1 Am. Crim. Rep. 297, 1875; Com. v. Eckerd, 174 Pa. 137, 34 Atl. 305, 1896. See note in 60 Am. Rep. 212. Sane immediately before and im- mediately after the act, but non compos mentis at time of act, is not recognized by some courts. See State v. Pagels, 92 Mo. 317, 4 S. W. 931, 1887; State v. Miller, 111 Mo. 542, 20 S. W. 248, 1892; State v. Soper, 148 Mo. 217, 49 S. W. 1007, 1899; Ortwein v. Com. 76 Pa, 414, 18 Am. Rep. 420, 1 Am. Crim. Rep. 297, 1875. Compare: State v. Levelle, 34 8. C. 120, 27 Am. St. Rep. 799, 13 S. i. 319, 1891. 1 Whitlow v. State, 74 Ga. 819, 1885. 2 Williams v. State, 55 Ga. 395, 1 Am. Crim. Rep. 413, 1875. 1See this question fully discussed et seq. As a justification for an assault and felony, see [Ark.] Stricklin v. State, 67 Ark. 349, 56 S. W. 270, 13 Am. Crim. Rep. 148, 1900. [Iowa] State v. Goering, 106 Iowa, 636, 73 N. W. 327, 11 Am. Crim. Rep. 140, 1898. [Tex.] McLendon v. State, — Tex. Crim. Rep. —, 66 S. W. 553, 13 Am. Crim. Rep. 152, 1902. —In defense of others. [Ala.] Hendrix v. State, 50 Ala. 148, 1 Am. Crim. Rep. 57, 1873. [Iowa] State v. Montgomery, 65 Iowa, 483, 22 N. W. 639, 5 Am. Crim. Rep. 54, 1885. [Mass.] Com. v. Donahue, 148 Mass. 529, 2 L.R.A. 623, 12 Am. Bt. Rep. 591, 20 N. E. 171, 8 Am. Crim. Rep. 45, 1889. [Miss.] Hairston v. State, 54 Miss. 689, 28 Am.. Rep. 392, 3 Am. Crim. Rep. 6, 1877. [Neb.] Atkinson v. State, 58 Neb. 356, 78 N. W. 621, 11 Am. Crim. Rep. 136, 1899. [N. C.] State v. Goode, 130 N. C. 651, 41 S. E. 3, 18 Am. Crim. Rep. 178, 1902. [S. C.] State v. Lightsey, 48 8. C. 114, 20 8S. E. 975, 10 Am. Crim. Rep. 38, 1894. [Tex.] Cox v. State, — Tex. Crim. Rep. —, 34 S. W. 754, 1896; Williams v. State, 44 Tex. Crim. Rep. 316, 70 S. W. 957, 18 Am. Crim. Rep. 144, 1902. [W. Va.] Mensano: v. Com. 98 Va. 840, 36 S. E. 371, 13 Am. Crim. Rep. 156, 1500. —In defense of property, See Cox v. State, — Tex. Crim. Rep. —, 34 S. W. 754, 1896. See also notes m 8 L.R.A.(N.S.) 427; 14 L.R.A.(N.S.) 317; and 8 Am. Crim. Rep. 48. As to justification for assault with intent to kill, see People v. Rodrigo, § 410] DEFENSES. 571 of another to save life,? although the act, except for the neces- sity existing, would be a crime.® § 410. Pendency of, or recovery in, a civil action. A criminal offense usually affects the interests of an individual and also the interests of the general public, and where it does, each hasa remedy. The remedies are concurrent and independ- ent, not exclusive;* and the fact of the pendency of or a recov- ery in a civil action will not be a bar, and cannot be set up as a defense, to a criminal prosecution therefor.* 69 Cal. 601, 11 Pac. 481, 8 Am. Crim. Rep. 53, 1886. As to justification for homicide, see People v. Robertson, 67 Cal. 646, 8 Pac. 600, 6 Am. Crim. Rep. 519, 1885; State v. Matthews, 148 Mo. 185, 71 Am. St. Rep. 594, 49 S. W. 1085, 11 Am. Crim. Rep. 681, 1899. See also notes in 5 Am. Crim. Rep. 427; 6 Am. Crim. Rep. 524; 7 Am. Crim. Rep. 468; 9 Am. Crim. Rep. 337; 9 Am. Crim. Rep. 649; 10 Am. ‘Crim. Rep. 178; and 13 Am. Crim. Rep. 289. As to law of self-defense, see full discussion and collection of author- ities in monographic note in 74 Am. St. Rep. 717-740. As to right of self-defense as af- fected by fact person asserting it provokes the difficulty, see [Cal.] People v. Robertson, 67 Cal. 646, 8 Pac. 600, 6 Am. Crim. Rep. 519, 1885. [Ill.] Hughes v. People, 116 Til. 330, 6 N. E. 55, 7 Am. Crim. Rep. 502, 1886. [Miss.] Pulpus v. State, 82 Miss. 548, 34 So. 2, 18 Am. Crim. Rep. 286, 1903. [Mo.] State v. Underwood, 57 Mo. 40, 1 Am. Crim. Rep. 251, 1874. [R. I] State v. White, 18 R. I. 473, 28 Atl. 968, 9 Am. Crim. Rep. 73, 1894. [S. C.] State v. Cobb, 65 S. C. 324, 95 Am. St. Rep. 801, 43 8. E. 654, 13 Am. Crim. Rep. 262, 1903. [Tex.] Mozee v. State, — Tex. Crim. Rep. —, 51 S. W. 250, 11 Am. Crim. Rep. 148, 1899. See notes in 74 Am, St. Rep. 731, and 96 Am. St. Rep. 860; mono- graphic note in 45 L.R.A. 687-712. Preparation for participation in wrongful act does not impair the rule, where there is no act, declara- tion, or circumstance indicative of wrongful purpose. Cook v. State, 43 Tex. Crim. Rep. 182, 96 Am. St. Rep. 854, 63 S. W. 872, 1901. As to justification of an affray, see State v. Harrell, 107 N. C. 944, 12 S. E. 439, 8 Am. Crim. Rep. 36, 1890; Coyle v. State, — Tex. Crim. Rep. —, 72 S. W. 847, 12 Am. Crim. Rep. 5, 1903. 2The James Wells v. United States, 7 Cranch, 22, 3 L. ed. 256, 1812; The Struggle v. United States, 9 Cranch, 71, 3 L. ed. 660, 1815; United States v. The Diana, 7 Wall. 354, 19 L. ed. 165, 1869; The Mary, 1 Gall. 206, Fed. Cas. No. 9,183, 1812; The William Gray, 1 Pains, 16, Fed. Cas. No. 17,694, 1810; Unit- ed States v. Ashton, 2 Sumn. 13, Fed. Cas. No. 14,470, 1834; Com. v. Brooks, 99 Mass. 434, 1868. 3 Stephen, Digest Crim. Law, art. 82. See [Eng.] Reg. v. Bamber, 5 Q. B. 279, Dav. & M. 367, 13 L. J. Mag. Cas. N.S. 138, 8 Jur. 369; Strat- ton’s Case, 21 How. St. Tr. 1046, 1223. [Fed.] United States v. Ash- ton, 2 Sumn. 19, Fed. Cas. No. 14,470, 1834. [Ky.] Chesapeake & O. R. Co. v. Com. 119 Ky. 519, 84 S. W. 566, 1905; Louisville & N. R. Co. v. Com. 187 Ky. 802, 127 S. W. 152, 1910. [Mass.] Com. v. Knox, 6 Mass. 76, 1809; Com. v. Brooks, 99 Mass. 434, 1868. 1¥Freeman v. United States, 217 U.S. 539, 54 L. ed. 874, 36 Sup. Ct. Rep. 592, 19 A. & E. Ann. Cas. 755, 1909; United States v. Buntin, 10 Fed. 730, 1882; Foster v. Com. 8 Watts. & S. 77, 1844. 2[Eng.] Rex v. Ashburn, 8 Car. & P. 50. [Fed.] United States v. 572 CRIMINAL LAW. [§ 410 Qui tam for recovery of the same penalties, pending at the time of indictment, has been said to be a defense to a prose- cution on the indictment.* § 411. Ratification by injured party. In a charge of crime the nature of the act and the intent of the party deter- mine whether an offense has been committed. The effect of a ratification by the injured party upon a prosecution for the crime committed has been discussed in a former section.’ Such a ratification will be a bar to a criminal prosecution, and can be set up as a defense in those cases in which the injury is pure- ly personal to the party affected,? but otherwise where the crime is also against the general public.* § 412. Reparation. In those cases in which the general public is affected by criminal act, as well as the particular indi- vidual injured, full reparation and settlement with the party injured will not constitute a defense to a criminal prosecution for such criminal act;* but when the injured party alone is Buntin, 10 Fed. 730, 1882. [Ark.] Donohoe v. State, 59 Ark. 375, 27 S. W. 226, 1894. [Mich.] People v. Kenyon, 93 Mich. 19, 52 N. W. 1032, 1892. [Minn.] State v. Hogard, 12 Minn. 293, Gil. 191, 1867. [N. Y.] People v. Judges, 13 Johns. 85, 1816; People v. Hayes, 140 N. Y. 484, 23 L.R.A. 830, 37 Am. St. Rep. 572, 35 N. E. 951, 1894, affirming 70 Hun, 111, 24 N. Y. Supp. 194, 1898. [Pa.] Foster v. Com. 8 Watts & S. 77, 1844; Com. v. Hurd, 177 Pa. 481, 35 Atl. 682, 1896. [S. C.] State v. Frost, 1 Brev. 385, 1804; State v. Stein, 1 Rich. L. 189, 1845. Appeal from decision of commis- sioners charging official with amount of money obtained is no defense to an indictment of an officer for being concerned in public contract. Com. v. Hurd, 177 Pa. 481, 35 Atl. 682, 1896. Judgment for damages in civil ac- tion is not a defense to prosecution of the plaintiff therein for battery. People v. Kenyon, 93 Mich. 19, 52 N. W. 1033, 1892. Pendency of civil action is no bar to the prosecution of a criminal ac- tion growing out of the same state of facts. People v. Hayes, 140 N. Y. 484, 23 L.R.A. 830, 37 Am. St. Rep. 572, 85 N. E. 951, 1894, affirm- ing 70 Hun, 111, 24 N. Y. Supp. 194, 1893. Pendency of action for injunction to restrain enforcement of a law, which injunction was afterwards denied, is not a defense to a prose- cution for a violation of the law. State v. Keller, 8 Idaho, 699, ‘uv Pac. 1051, 1902. Recovery of damages in civil ac- tion does not bar prosecution of criminal action growing out of the same state of facts. United States v. Buntin, 10 Fed. 730, 1882. 3Com. v. Churchill, 5 Mass. 174, 1809; Com. v. Howard, 13 Mass. 221, 1816. 1See supra, § 384. 2May v. State, 115 Ala. 14, 22 So. 611, 1896; Holsey v. State, 4 Ga. App. 453, 61 S. E. 836, 1908. 8 [Ind.] Robinson v. State, 66 Ind. 331, 1879. [Mo.] State v. Tull, 119 Mo. 421, 248. W. 1010, 1894. [Tex.] Countee v. State, — Tex. Crim. Rep. —, 33 S. W. 127, 1895. 1See discussion supra, §§ 180 et seq.; also [Fla.] Thalheim v. State, § 413) DEFENSES. 573 affected, there may be a reparation for the act and a ratifica- tion thereof barring a criminal prosecution.? § 413. Repeal of statute. Where a statute defining a crime and pronouncing the punishment to be inflicted for its violation is repealed before judgment is pronounced in a prosecution thereunder, where there is no saving clause, in the absence of a constitutional provision to the contrary,’ this will constitute a complete bar to all further proceedings in’ the case, except to dismiss it;? but where there is a proper saving clause it is otherwise;* where there is such saving 38 Fla. 169, 20 So. 938, 1896. [Ill] Young v. People, 193 Ill. 236, 61 N. E. 1104, 1901. [Ind.] Dean v. State, 147 Ind. 215, 46 N. E. 528, 1897. [Iowa] State v. Pingel, 128 Towa, 515, 105 N. W. 58, 1905. [La.] State v. Pellerin, 118 La. 547, 43 So. 159, 1907. [Mo.] State v. Merkel, 189 Mo. 315, 87 S. W. 1186, 1905. [N. Y.] People v. Britton, 134 App. Div. 275, 118 N. Y. Supp. 989, 1909. [N. C.] State v. Dunn, 138 N. C. 672, 50 S. E. 772, 1905. [Tex.] Goodwyn v. State, — Tex. Crim. Rep. —, 64 S. W. 251, 1901. [Va.] Robinson v. Com. 104 Va. 888, 52 S. E. 690, 1906. [Wis.] Guenther v. State, 187 Wis. 183, 118 N. W. 640, 1908. 2State v. Engle, 111 Iowa, 246, 82 N. W. 763, 1900. Party injured may make arrange- ment for securing property taken P without a ratification of the criminal act. Young v. People, 193 Ill. 236, 61 N. E. 1104, 1901; State v. Pingel, 128 Iowa, 515, 105 N. W. 58, 1905. 1 Raines v. State, 42 Fla. 141, 28 So. 57, 1900. In Indiana and Kentucky they have sought to do by statute that which should,—if not must,—be done by Constitution in relation to the effect of the repeal of a statute upon crimes already committed. See [Ind.] State v. Hardman, 16 Ind. App. 357, 45 N. E. 345, 1896; Com. v. Reynolds, 64 Ky. L. Rep. 628, 1886. [Ohio] See also State v. Lawrence, 74 Ohio St. 38, 77 N. E, 266, 6 A. & E. Ann. Cas. 888, 1906. [Wash.] State v. Hanover, 55 Wash. 403, 104 Pac. 624, 107 Pac. 388, 1910. 2[Mass.] Com. v. Marshall, 11 Pick. 350, 22 Am. Dec. 377, 1831; Com, v. Kimball, 21 Pick. 373, 1838; Com. v. Herrick, 6 Cush. 465, 1850; Com. v. Pattee, 12 Cush. 501, 1853; Com. v. Old Colony & F. River R. Co. 14 Gray, 93, 1859; flaherty v. Thomas, 12 Allen, 428, 1866; Com. v. McDonough, 13 Allen, 581, 1866. [Ohio] Re Kline, 70 Ohio St. 25, 70 N. EB. 511, 1 A. & E. Ann. Cas. 219, 1904. [S. C.] State v. Mansel, 52 S. C. 468, 30 S. E. 481, 188; State.v. Lewis, — S. C. —, 33 S. E. 351, 1899. [Wash.] State v. Hanover, 55 Wash. 408, 104 Pac. 624, 107 Pac. 388, 1909. Compare: State v. Seiberling, 143 Mo. App. 318, 127 S. W. 106, 1910. Law applying to future cases, only, the rule seems to be different. Peo- le v. Hobson, 48 Mich. 27, 11 N. W. 771, 1882. Repeal after final judgment does ‘not vacate or modify the judgment, or render it invalid. Re Kline, 70 Ohio St. 25, 70 N. EB. 511, 1 A. & HE. Ann. Cas, 219, 1904. As to effect of repeal of criminal statute after judgment, see note in 16 A. & E. Ann. Cas. 469. 8 See [Fed.] United States v. Lack- ey, 99 Fed. 952, 1900. [Ga.] Draper v. State, 6 Ga. App. 12, 64 S. E. 117, 1909. [Ind.] State v. Kiger, 4 Ind. 621, 1853; State v. Hardman, 16 Ind. App. 357, 45 N. E. 345, 1896. [La.] State v. Monfre, 122 La, 513, 47 So. 876, 1908. [Mass.] Com. v. Hutchings, 5 Gray, 482, 1855. [Mo.] State v. Walker, 221 Mo. 511, 120 574 CRIMINAL LAW. [§ 413 clause the prosecution must be conducted under the law in force at the time of the trial.* § 414. Religious belief. In this country the full and free right to entertain any religious belief, to practise any religious principle, and to teach any religious doctrine which does not violate the laws of morality and of property, and which does not infringe personal rights of others, is guaranteed to all.’ But this right will not protect against criminal prosecution any person doing an act sanctioned, or commanded, by his religious belief, which contravenes the express law of the land.? The Amendment to the Federal Constitution® regarding laws re- specting any established religion was never intended to be a protection against punishment of acts inimical to the peace, good order, and morals of society.* § 415. Somnambulism. The effect of the existence of a state of somnambulism as affecting responsibility for crime has been treated in a former section.’ The defense that the offense charged was committed by the accused during the prevalence of or in a state of somnambulism has been recognized;? but the latest holding of courts is to the effect that it does not constitute a defense other than that embraced in a plea of insanity.® S. W. 1198, 1909, affirming 129 Mo. App. 371, 108 S. W. 615, 1908; State v. Tuller, 138 Mo. App. 349, 122 S. W. 313, 1909. [Wash.] State v. Hanover, 55 Wash. 403, 104 Pac. 624, 107 Pac. 388, 1910. New act being substantial reenact- ment, no saving clause is necessary. People v. Schoenberg, 161 Mich. 88, 125 N. W. 779, 1910; Hair v. State, 16 Neb. 601, 21 N. W. 464, 4 Am. Crim. Rep. 127, 1884. 4McCalment v. State, 77 Ind. 250, 1881; Acree v. Com. 13 Bush, 353, 1877. 1 Watson v. Jones, 13 Wall. 679, 729, 20 L. ed. 666, 676, 1871. 2Reynolds v. United States, 98 U, 8S. 145, 25 L. ed. 244, 1898, affirm- ing 1 Utah, 226, 1875; Davis v. Beason, 133 U. S. 338, 33 L. ed. 637, 10 Sup. Ct. Rep. 299, 8 Am. Crim. Rep. 89, 1889. 38 Amendment I. See 9 Fed. Stat. Anno, 241, and notes. The law respecting the protection of citizens in their religious rights and liberties is not provided for by the Federal Constitution, but is left to the Constitutions and laws of the particular states. Permole v. New Orleans, 3 How. 589, 609, 11 L. ed. 739, 748, 1845. See authorities collected in 9 Fed. Stat. Anno. 241, and note in 8 Am. Crim, Rep. 99. 4 Davis v. Beason, 133 U. S. 338, 33 L. ed. 637, 10 Sup. Ct. Rep. 299, 8 Am. Crim. Rep. 1889. 1See supra, § 84. 2Fain v. Com. 78 Ky. 183, 39 Am, Rep. 213, 1879. See also Kerr, Homicide, 251-254; Kerr’s Before and At Trial, 270- 282. 3 Tibbs v. Com. 138 Ky. 558, 28 L.R.A.(N.S.) 665, 128 S. W. 871, 1910. § 416] DEFENSES. 575 § 416. Want of Federal revenue stamp. Where the rev- enue law requires that an instrument shall be stamped to give it legal validity in a civil court of law, the fact that such document is without a stamp does not prevent it from being the subject of a criminal act, has been held by the criminal courts ;* and the want of such stamp will not constitute a defense in a prosecu- tion for such criminal act.” 1Thomas v. State, 40 Tex. Crim. Rep. 562, 46 L.R.A. 454, 76 Am. St. Rep. 740, 51 8S. W. 242, 1899. See notes in 10 Am. Rep. 154; and 46 L.R.A. 454-457. As to admissibility in evidence of instrument invalid in law because without a revenue stamp, see Rhein- strom v. Cone, 26 Wis. 163, 7 Am. Rep. 48, 1870. See also notes in 7 Am. Rep. 51, and 48 L.R.A. 305. Distinction between civil and crim- inal cases in respect to the req- uisites of instruments, especially in case of forgery, is clearly pointed out in Crosley v. Arkwright, 2 T. R. 604, 1788. 2[Eng.] Rex v. Hawkeswood, 2 Kast, P. C. 955, 1 Leach, C. L. 257, 2 T. R. 606, 1783; Reg. v. Morton, 2 East, P. C. 955, 1 Leach, C. L. 259, 1795; Rex v. Reculist, 2 East, P. C. 956, 2 Leach, C. L. 703, 1795; Rex v. Davies, 2 East, P. C. 956, 1796; Rex v. Teague, 2 East, P. C. 979, 2 Leach, C. L. 507, Russ. & R. C. C. 33, 1802. [Cal.] People v. Frank, 28 Cal. 507, 1865; People v. Bibby, 91 Cal. 470, 27 Pac. 781, 1891; Peo- ple v. Munroe, 100 Cal. 664, 24 L.R.A. 33, 38 Am. St. Rep. 323, 35 Pac. 326, 1893. [Tll.] Cross v. Peo- ple, 47 Ill. 152, 95 Am. Dec. 474, 1868, distinguishing Gutchins v. Peo- ple, 21 Ill. 642, 1859. [Md.] Laird v. State, 61 Md. 309, 1884. [Minn.] State v. Mott, 16 Minn. 472, 10 Am. Rep. 152, Gil. 424, 1871; Cab- bott v. Radford, 17 Minn. 320, Gil. 296, 1871; Owsley v. Greenwood, 18 Minn. 429, Gil. 386, 1872. [N. H.] State v. Young, 47 N. H. 402, 1867. [N. Y.] Miller v. People, 52 N. Y. 804, 11 Am. Rep. 706, 1873. [Tenn.] State v. Haynes, 6 Coldw. 550, 1869. [Tex.] Horton v. State, 32 Tex. 79, 1869. [Wis.] State v. Hill, 30 Wis. 416, 1872. See also notes in 22 Am. Dec. 319; 50 Am. Dec. 559; and 8 Am. St. Rep. 466. Compare: John v. State, 23 Wis. 504, 1868, holding draft without a revenue stamp could not be the sub- ject of forgery, but this case was overruled in State v. Hill, 30 Wis. 416, 1872. CHAPTER XIV. HOMICIDE, I. Divisions AND DEFINITIONS. § 417. § 418, § 419. § 420. § 421, § 422. § 423. § 424, § 425. § 426. § 427. § 428. § 429. Divisions of homicide. Murder is killing with malice aforethought. Deliberation and premeditation. Criticism of definition. Manslaughter—Definition and kinds of. —Distinguished from murder, how. Statutory manslaughter. Voluntary manslaughter. —Elements of. Involuntary manslaughter—Definition of. Excusable homicide—Kinds or classes of. Justifiable homicide is homicide in discharge of duty. In verdict no distinction between excusable and justifi- able homicide. Il. Certain ReQuisites oF HoMICcIDE IN GENERAL. § 430. § 431. § 432. § 433. § 434, § 435. § 436. Deceased must have been living at time of mortal blow. Death must be imputable to defendant’s act. Accelerating death of dying person is homicide. The homicide must not have been in legitimate public war. 3 There must be proof of the corpus delicti. —Identity of deceased. The death must have been within a year and a day from the injury. § 437. § 438. § 439. § 440. Malice to be inferred from circumstances. When there is deliberate, unlawful killing, malice is inferred. If intent be only to inflict slight hurt, offense is but manslaughter. Killing when intending to produce miscarriage is murder. Crim. L. Vol. I.—37. 517 578 § 445. § 446. g 447. § 448. § 449. § 450. § 451. § 452. § 453. CRIMINAL LAW. . When unintended person is killed by mistake—Offense same as.if intended party had been killed. . —Objections to above doctrine. . Malice to a class covers malice to an individual. . —But where act is negligent, offense is but man- slaughter. By older writers killing with intent to commit col- lateral felony is murder. At common law, this doctrine is unsustainable by reason. Proper course to indict for attempt and for man- slaughter. Unintentional homicide incident to unlawful act is manslaughter. —So in respect to assault. —So in respect to miscarriage. —So as to riots. —So as to illicit sexual intercourse. —So as to suicide. III. Necricent Homicipe. § 454, § 455. § 456. § 457. § 458. § 459. § 460. § 461. § 462. § 463. § 464, § 465. § 466. § 467. § 468. § 469. § 470. § 471. § 472. § 473. § 474. § 475. § 476. § 477. § 478. Omission in discharge of a lawful duty indictable. Omission to perform acts of mercy not indictable. Otherwise as to lawfu! duties—Parent and child. —Husband and wife. —Keeper of jails, ete. —Ineapacity a defense. —Capacity on part of person neglected is a defense. Conscientious opinion as to duty, when a defense. —Engineers and other officers liable for omission. —So of persons employed to give notice of danger. No indictment lies for failure in discretionary duty. There must be a causal connection between the negli- gence and the injury. Master liable for servant. No defense that business was lawful. Negligent use of dangerous agencies indictable. Negligent use of firearms imputable. Negligent exposure of poison indictable. —So of negligent administration of poison. —So of intoxicating liquors. Officers of railroad liable for death ensuing from their want of care. Where there is duty there is liability. —But must be specific duty. Killing by negligently dropping articles, manslaughter, Liability of steamboat officers for negligence. Death produced by careless driving is manslaughter. § 488. § 489. § 490. § 491. § 492. § 493. § 494. § 495. HOMICIDE. 579 —Rapidity which puts the horse out of control im- poses liability. . —Care to be that usual to prudent driver. . —All parties concerned liable as principals. . Letting loose dangerous animals. . Killing helpless person by neglect is manslaughter. . Death of child by parent’s neglect is manslaughter. —So as to master and apprentice, and master and servant. . —So of jailers and other guardians. . Physician liable for lack of ordinary diligence and skill. —Not responsible if patient was direct cause of injury. —No difference between licensed and unlicensed prac- titioner. —Culpable ignorance in any view imposes liability. —Careless or ignorant use of dangerous agent is neg- ligence. —Gratuitousness does not affect case. —Apothecaries and chemists liable on same principles. Persons running machinery must exercise care in pro- portion to danger. —So when death is caused by negligent desertion of post. IV. Kinxuine 1n ATHretic Sports. § 496. § 497. § 498. § 499. Prize fighters liable for manslaughter in case of non- malicious killing of antagonist. —And so of participants in unlawful sports. —But not so in lawful athletic sports. In practical jokes responsibility attaches. V. CorREcTION BY PERSON IN AUTHORITY. § 500. Killing by undue correction, manslaughter. VI. Statutory DisTINcTIONs. § 501. § 502. § 503. § 504, § 505. § 506. § 507. § 608. § 509. Old English law indifferent to gradations of guilt. General analysis of statutes. Pennsylvania, etc., statute—Distinction between mur- der and manslaughter untouched—Intent to take life, “Wilful” means specifically willed. “Deliberate” to be regarded as qualifying “killing.” “Premeditated” an essential incident. Facts from which premeditation may be inferred. Killing B when intent was to kill C is murder in the first degree. Grade of homicide when individual killed is one of a crowd attacked is determined by the general intent. 580 § 510. § 511. § 512. § 513. § 514. CRIMINAL LAW. Killing in perpetration, or attempt, of arson (or other offenses named in statute), not necessarily murder in first degree. Homicide committed by means of poison, or lying in wait, not necessarily murder in first degree. Homicide incidental to unenumerated felony is man- slaughter. Under the statute, attempt must be a substantive offense. Murder in second degree includes what—Mind in such a state as to be incapable of specific intent. § 515. Murder in drunkenness is murder in the second degree. § 516. § 517. § 518. § 519. § 520 Killing a woman in an attempt to produce abortion, murder in second degree. Murder in second degree, a compromise courts are unwilling to disturb. In cases of doubt, presumption is for murder in second degree. Common-law indictment for murder sustains either degree. . Verdict should specify the degree. VII. Riotous HomicipEs. § 521. War levied against government for private purposes, § 522. § 523. § 524. § 525. § 526. § 527. and killing follows, indictment should be for homi- cide. Corioter principal in riotous killing. —But not in collateral crimes. —Presence without intent to kill involves man- slaughter. Killing by lynch law is murder in the first degree. If there is cooling time, offense may be murder. Private person may kill in suppression of riot. VIII. HomicipE By OFFICER OF JUSTICE. § 528. § 529. 1, Oivil. § 530. Killing in obedience to warrant, justifiable. —And so when necessary to effect an arrest. Officer intentionally killing a person flying from civil arrest, chargeable with murder. 2. Criminal. § 531 § 532. § 533 § 534 § 535 § 536 . —And so in pursuit of criminal charged with mis. demeanor. . —Otherwise in respect to felonies. . Killing by officer justifiable in preventing of escape in felonies. . Killing justifiable when necessary to preserve peace. . Lawful arreat unlawfully executed imposes responsi- bility. . Legal warrant necessary. § 537. ‘§ 538. § 539. IX. Homiciwr or § 540. § 541. § 542. HOMICIDE, 581 Private persons interfering act at their -risk. —So as to military and naval officers. Officer when in danger of life may kill person charged with misdemeanor attempting to escape. OFFICERS OF JUSTICE AND OTHERS AIDING THEM. Intentional killing of arresting officer is murder. —But manslaughter when arrest is illegal. Constable and policeman have authority toarrest when public order is threatened. . Bailiff’s power limited to arrest. . Officer executing process must be within jurisdiction. . Notice may be inferred from facts. . If there be no notice, killing in self-defense is not murder. . Warrant must be executed by party named or his assistant. . Warrant continues in force until executed. . Warrant in wrong name or with no offense, inopera- tive. . Falsity of charge, no alleviation. . Warrant, without seal, void. . Informality not amounting to illegality. . Warrant need not be shown. . Arrest on charge of felony, lawful without warrant. . Arrest may be made during offense without warrant. . For past offenses, right limited to felonies and breaches of the peace. . Killing officer arresting on reasonable suspicion is murder. . Military and naval officers governed by the same rule. . Persons aiding officers, entitled to protection of officers. . —So as to private persons lawfully arresting inde- pendently of officers. . Pursuer must show that felony was committed and that the person flying was guilty. . Private person may interfere to prevent crime. . Indictment found, good cause of arrest by private persons. . Railway officers may arrest passengers guilty of mis- conduct. . Arrest for breach of peace, illegal without corpus delicti. . In case of public disorder officers may enter house to arrest. . Private persons interfering to quell riots should give notice of their purpose. Must be reasonable ground to justify arrest of va- grants. 582 § 569. § 570. § 571. X. INFANTICIDE, § 572. § 573. § 574, XI. Surciwe. § 575. § 576. § 577. § 578. § 579. § 580. § 581. XIf. Provocation § 582. § 583. § 584. § 585. § 586. § 587. § 588. § 589. § 590. § 591. § 592. § 593. § 594. § 595. § 596. § 597. CRIMINAL LAW. Time of execution of arrest. Manslaughter when officers take opposite parts. A aiding B, when arrested, is in the same position as B. Not homicide when—When is homicide. Birth is a question of fact. Killing of child by negligent exposure is manslaughter, Surviving principals in suicide indictable for murder. At common law there can be no conviction of acces- sories before the fact to suicide. Killing may be murder when incident to producing an abortion. Consent of deceased, no bar to prosecution for homi- cide. Killing another with his consent in order to avoid a greater evil. Manslaughter, ete. Attempts, ete. Anp Hot Broop. Loss of self-control, essential to the defense. Words of reproach, not adequate provocation. When person is touched, then provocation reduces degree. Interchange of blows reduces to manslaughter. A slight provocation extenuates when intent is only to chastise. Husband in hot blood killing adulterer, guilty of man- slaughter. —Punishment, when in hot blood, for attack on chasti- ty of persons under rightful protection of defendant. Killing to redress a public wrong is murder. Bare trespass on property, not an adequate provoca- tion in case of intentional killing. Exercise of legal right, no just provocation. Spring gun illegal when placed on spot where inno- cent trespassers may wander. For master of house knowingly to kill visitor is mur- der. —When such killing is in hot blood it is manslaughter. —When such killing is in self-defense it is excusable. Manslaughter to kill master of house expelling de- fendant with unnecessary violence. Killing person having a legal right to the use of a room is murder. § 598. § 599. § 600. § 601. § 607. § 608. § 609. § 610. § 611. HOMICIDE. 583 Where the parties are equal, a blow is sufficient provo- cation. Jn sudden quarrels, immaterial who struck the ‘irst blow. —But the assault must have been calculated to arouse the passions. Deliberate and cruel use of superior strength implies malice. - Malice implied from concealed weapon. . Where the mortal blow is deliberately given after the deceased is helpless, offense is murder. . Case is murder where the attack is sought by the party killing. Question of continuance of old grudge, one of fact. . Malicious killing in another’s quarrel is murder, but if in hot blood, is manslaughter. Hot blood extenuates a killing in proportion to the closeness of the relationship of the party interfering. Cooling time dependent on circumstances. Restraint or coercion is adequate provocation. Killing in duel is murder. —Seconds are responsible for murder. XIII. Excuse anp JUSTIFICATION. 1. Repulsion of felonious assault. § 612. § 613. § 614. § 615. § 616. § 617. § 618. § 619. § 620. § 621. § 622. § 623. Force of defense may be proportioned to force of attack. Conflict provoked by the defendant cannot be set up as a defense. Self-defense exists when the defendant, though agres- sor, retreats, asking for peace. Retreat is necessary when practicable. Prior malice of defendant does not abrogate defense. Attack cannot be anticipated when there is an oppor- tunity to restrain by law. —Otherwise where there is no organized government. Whether the danger is apparent is to be determined from the defendant’s standpoint. —Impracticable to take an ideal “reasonable man” as standard. —Analogy from cases of interference in conflicts of others. —On pfinciple, the test is the defendant’s honest belief. —But, though defendant believes he is in danger of life, he is guilty of manslaughter if this belief is imputable to his negligence. 584 CRIMINAL LAW. § 624. Apparent attack, to be an excuse, must have a¢tually begun and must be violent. § 625. Right extends to parent and child, husband and wife, master and servant. 2. Prevention of felony. § 626. Bona fide and non-negligent belief that a violent felony is in progress wili excuse a homicide in its resistance. § 627. Right cannot usually be exercised when there is an opportunity to secure the offender’s arrest. § 628. —But this does not excuse pursuit and killing when danger is over. § 629. —Nor an unnecessary killing. § 630. Violent and flagrant offenses may thus be resisted. § 631. Trespass no excuse for killing trespasser. , § 632. Owner may resist to death violent removal of property, or attack upon his rights; but not an attack upon his honor. 3. Protection of dwelling houses. § 633. Persons attacked in dwelling houses need not retreat. § 634. Attack on house may be resisted by taking life. § 635. —But this does not excuse killing of mere trespasser. § 636. Friends may unite in defense. § 637. Right does not excuse killing intruder when in house. § 638. Killing by spring guns when necessary to exclude burglars is excusable; when set bona fide, but negligently, it is manslaughter; when maliciously, it is murder. 4. Execution of laws. § 639. Killing under mandate of law justifiable. 5. Superior duty. § 640. Killing under superior duty, justifiable. 6. Necessity. § 641. Sacrifice of another’s life, excusable when necessary to save one’s own. § 642. Self-preservation in shipwreck. XIV. InpicTMENT. § 643. Introductory. § 644. Venue must aver jurisdiction. § 645. Deceased must be individuated. § 646. Averment of relationship between deceased and de- fendant; when such is necessary to offense. § 647. Variance as to intent to kill the particular individual killed, 8 648. § 649. § 650. § 651. § 652. § 653. § 654. § 655. § 656. § 657. § 658. § 659. § 660. § 661. § 662. § 663, § 664. § 665. § 666. § 667. § 668. § 669. § 670. § 671. § 672. § 673. XV. VEEDICcT. § 674. § 675. § 676. § 677. § 678. § 679. § 680. HOMICIDE. 585 “In the peace of God,” etc., not a necessary averment. Deceased must have been living at time of blow. “Feloniously” and with “malice aforethought,” neces- sary at common law. Allegation of “assault” necessary in violent homicides. At common law, general character of instrument of death must be correctly given. —Variance in this respect is fatal. When death is alleged to have ensued from compul- sion or fright, circumstances must be averred. Acts of agent or associate may be averred to be acts of principal. Variance in description of poison not fatal. Scienter requisite in poison. Unknown instruments need not be averred. When counts are inconsistent, verdict should be taken on good counts. Value need not be proved. Allegation of hand of defendant need not be made. Averment of time need not be repeated. Word “struck” essential where there has been a blow. “Strike” not necessary when poison or other methods of death, not involving wounds, are used. General description of place of wound sufficient. Term “wound” to be used in popular sense. Exactness no longer necessary in description. When two wounds are averred, either may be proved. “Death” must be averred. —Must have been within a year and a day. Place must be averred. Omission of terms “malice aforethought” and “murder” reduces the case to manslaughter. Varying counts may be joined. Conviction or acquittal of manslaughter acquits of murder. Jury may convict of minor degree. Verdict must specify degree. No verdict for assault. Excusable homicide acquits. Accessory to second degree, Designation of punishment, 586 CRIMINAL LAW. [§ 417 I. Divisions anp DEFINITIONS. § 417. Divisions of homicide. divided into the following heads: law, is I. II. Murder.? Manslaughter.® III. Excusable homicide. IV. Justifiable homicide. § 418. Murder is killing Homicide,’ at common with malice aforethought. Murder, as defined at common law, is where a person’ of sound 1 State v. Underhill, 6 Penn. (Del.) 491, 69 Atl. 880, 1908; State v. Blackburn, 7 Penn. (Del.) 479, 75 Atl. 536, 1892; State v. Wiggins, 7 Penn. (Del.) 127, 76 Atl. 634, 1908; State v. Primrose, — Del. —, 77 Atl. 717, 1910. “Homicide,” is the killing of one human being by another. State v. Reese, — Del. —, 79 Atl. 217, 1911. Contributory negligence of de- ceased may relieve accused of re- sponsibility for the act resulting in death, although himself negligent and to a degree culpable. State v. Badgett, 87 S. C. 543, 70 S. E. 301, 1911. 2State v. Wiggins, 7 Penn. (Del.) 127, 76 Atl. 632, 1908. “Felonious homicide” is murder of either the first or second degree, or is voluntary manslaughter, accord- ing to the circumstances of the case. State v. Roberts, —- Del. —, 78 Atl. 305, 1910. : Murder, and not voluntary man- slaughter, when there is evidence of actual malice, or of a brutal and ferocious manner evincing a malig- nant disposition, or where there was time for defendant’s blood to cool, and for him to reflect. People v. Lilley, 43 Mich. 521, 5 N. W. 982, 1880. As to degrees of murder, or “fe- lonious homicide,” see State v. Reese, — Del.—, 79 Atl. 217, 1911. 3 Circumstances attending act de- termine whether the killing is mur- der or voluntary manslaughter. Roy v. State, 2 Kan. 405, 1864. Distinction between murder and voluntary manslaughter,—the chief is deliberation and malice in the for- mer, and the want of it in the latter. Guest v. State, 96 Miss. 871, 52 So. 211, 1910. Murder and manslaughter, though classed as separate crimes, in a broad sense involve but one crime, and are simply degrees in felonious homi- cide. Rhea v. Territory, 3 Okla. Crim. Rep. 230, 105 Pac. 314, 1909. See United States v. Lewis, 111 Fed. 630, 1909. 1To constitute murder the killing must be of one human being by an- other human being. See 3 Co. Inst. 47, 51; 4 Bl. Com. 198; 1 East, P. C. 214; 1 Hale, P. C. 425, 449, 450; 1 Hawk. P. C. chap. 26, § 2, chap. 31, § 3. Rex v. Oneby, 2 Ld. Raym. 1487. A corporation—At common law, cannot be indicted upon the charge of any crime the essence of which is either personal criminal intent, or such a degree of negligence as amounts to a wilful incurring of the risk of causing injury to others. See supra, §§ 116, et seq.; Reg. v. Great West Laundry Co. 3 Can. Crim. Cas. 514, 1900. —Under statute, however, « corpo- ration may be indicted for negligence to perform a duty, which negligence would subject an individual to an indictment for manslaughter. See supra, §§ 117, et seq.; Union Colliery Co. v. Reg. 31 Can. 8. C. 81, 4 Can. Crim. Cas. 400, 1900. See also Rex v. Central Supply Asso. 12 Can, Crim. Cas. 371, 1907. § 418] HOMICIDE, 587 memory and discretion unlawfully and feloniously® kills® in any county of the realm, any reasonable creature, that is, any human being* in rerum natura in the peace of the sover- 2 Bullet glancing and killing person not in direction in which gun or pistol fired, party is guilty of homi- cide if he knew, or ought to have known, that his discharge of the weapon in the manner he did was dangerous to human life. Oborn v. State, 143 Wis. 249, 31 L.R.A.(N.S.) 966, 126 N. W. 737, 1910. Shooting with intent to cripple, and killing, is murder where there was no legal justification for the shooting. Demato v. People, 49 Colo. 147, 35 L.R.A.(NS.) 621, 111 Pac. 703, 1910. 3 Killing another at his request, or at his command, constitutes murder, although positive malice is not shown. Turner v. State, 119 Tenn. 663, 15 L.R.A.(N.S.) 988, 123 Am. St. Rep. 758, 108 S. W. 1139, 14 A. & E. Ann. Cas. 990, 1908. 4 At common law, human being, to be the subject of homicide, must be in existence by actual birth, com- plete expulsion from the mother, and living at time blow inflicted or in- jury given. Evans v. State, 48 Tex. Crim. Rep. 589, 89 S. W. 974, 1905; Cordes v. State, 54 Tex. Crim. Rep. 204, 112 S. W. 943, 1908. An unborn infant not the subject of homicide at common law. State v. Prude, 76 Miss. 543, 24 So. 871, 11 Am. Crim. Rep. 466, 1899. Infant fully delivered, but not yet separated from its mother, is not a subject of homicide at common law. State v. Winthrop, 43 Iowa, 519, 22 Am. Rep. 257, 2 Am. Crim. Rep. 274, 1876. Under statutory provision in most of the states, however, the rule is different, and an infant is a subject of homicide as soon as conceived. The matter is governed by the pro- visions of the statutes of the par- ticular state, which must be con- sulted. Killing infant in womb. The murder of an infant may be com- mitted by inflicting injury on it or its mother while it remains in her womb, if it dies therefrom after being born; but it is otherwise if it dies from such injury while still in its mother’s womb. Clarke v. State, 117 Ala. 1, 67 Am. St. Rep. 157, 23 So. 671, 1907. —Provisions of Hammurabi Code. It may be of passing interest to com- pare the provisions on this subject in the earliest code of human produc- tion, that of Hammurabi,—the first great monarch presiding over Babylon and the surrounding coun- try; which Code-was formulated and engraven on a block of black diorite nearly eight feet in height, and con- taining about four thousand five hundred lines. This Code was thus engraven more than 2,800 years be- fore the birth of Christ, and more than one thousand years before Moses received the Decalogue from the hand of God on Mount Sinai. The stone slab was recovered in the explorations of the French govern- ment at Susa, in the year 1901. In this Code, it is provided as follows: § 209. “If a man has struck a gentleman’s daughter and caused her to drop what is in her womb, he shall pay ten shekels of silver for what was in her womb.” § 210. “If that woman has died, one shall put to death his daughter.” § 211. “If the daughter of a poor man, through his blows, he has caused to drop that which is in her womb, he shall pay five shekels of silver.” § 212. “If that woman has died, he shall pay half a mina of silver.” § 218. “If he has struck a gentle- man’s maid-servant and caused her to drop that which is in her womb, he shall pay two shekels of silver.” § 214. “If that maid-servant has died, he shall pay one third of a mina of silver.” John’s “The Oldest Code of Laws in the World,” p. 45; Harper’s “The Code of Hammurabi, King of Baby- lonia,” p. 77 (not thought to be as good a rendering as that of John’s). 588 CRIMINAL LAW. [§ 418 eign,® with malice® prepense” or aforethought,® either express° 5 Must be union of act and intent, and the deed must be malicious to such a degree as to come within the phrase “malice aforethought,” either express or implied, to constitute murder in either degree. Kent v. People, 8 Colo. 563, 9 Pac. 852, 5 Am. Crim. Rep. 406, 1885. “In the peace of the sovereign,”’— That part of the definition expressed in the terms “in the peace of the sovereign,” or “in the King’s peace,” as it occurs in the old books, refers not to the place of the assault and the death, but to the state and con- dition of the person slain, as being, or not being, entitled to the protec- tion of the English law; for example, whether he be a subject or an alien, or enemy or a traitor in arms; or, in more ancient times, an infidel, or guilty of preemunire. State v. Dunk- ley, 25 N. C. (3 Ired. L.) 116, 1842. 6 Malice an essential element in murder, in either the first or second degree. State v. Johns, 6 Penn. (Del.) 174, 65 Atl. 763, 1906; State v. Honey, 6 Penn. (Del.) 148, 65 Atl. 764, 1906. As to malice, generally, see supra, §§ 137 et seq; 5 Words & Phrases 4298, et seq. As to malice express and malice implied, see supra, §§ 145, et seq. As to malice as an element of the_: crime of homicide, see note in 9 Am. Crim. Rep. 377. As to malice to a class including malice to the members of that class, see supra, § 144. “Malice” is a condition of the mind and heart, forming an ingredient of murder. It is not restricted to spite or malevolence toward the deceased, but includes general malevolence and recklessness. State v. Johnson, — Del. —, 78 Atl. 605, 1910; State v. Reese, — Del. —, 79 Atl. 217, 1911. Malice defined in State v. Baber, 11 Mo. App. 586, 1882. “Malice” is the formation of a design to take the life of the de- ceased, unlawfully. [Ala.] Stoball v. State, 116 Ala. 454, 23 So. 162, 1898. [Ga.] Taylor v. State, 105 Ga. 746, 31 8S. E. 764, 1888; Mann v. State, 124 Ga. 760, 4 L.R.A.(NS.) 934, 538 S. E. 324, 1906. [Tex.] Logan v. State, — Tex. Crim. Rep. —, 538 8S. W. 695, 1899. Malice need not have existed for any length of time to warrant con- viction. [U. S.] Allen v. United States, 164 U. S. 492, 41 L. ed. 528, 17 Sup. Ct. Rep. 154, 1896. [Ga.] Perry v. State, 102 Ga. 365, 30 S. E. 903, 1897; Mills v. State, 183 Ga. 155, 65 S. E. 368, 1909. [La.] State v. Heidelberg, 120 La. 300, 45 So. 256, 1908. [W. Va.] State v. Abbott, 64 W. Va. 411, 62 S. E. 693, 1908. As to malice not being required to exist for any specified length of time, see supra, § 149. Malice against deceased is not a requisite ingredient of murder; proof of a heart regardless of social duty, and bent on mischief, is sufficient. State v. Abbott, 64 W. Va. 411, 62 S. E. 693, 1908. May be implied from the unlawful act. State v. Johnson, — Del. —, 78 Atl. 605, 1910. As to presumption of malice from the unlawful act, see supra, § 147. Malice is an inference of fact, and not of law. Kent v. People, 8 Colo. 563, 9 Pac. 852, 5 Am. Crim. Rep. 406, 1882. As to malice being inferable from the facts in the case, see supra, § 159. Sufficiency of facts to prove malice is for the jury. People v. Robertson, 67 Cal. 646, 8 Pac. 600, 6 Am. Crim. Rep. 519, 1885. It is not the mere killing which imports malice, but the killing with a deadly weapon. Raines v. State, 81 Miss. 489, 33 So. 19, 13 Am. Crim. Rep. 404, 1902. —Discharge of pistol into group of persons is such a reckless act as implies general malice, and if death ensues, the act will be murder. [IIL] Dunaway v. People, 110 Ill. 333, 51 Am. Rep. 686, 4 Am. Crim. Rep. 60, 1886. [Ky.] Golliher v. Com. 2 Duv. 168, 87 Am. Dec. 493, 1865. [Me.] State v. Smith, 32 Me. 369, 54 Am. Dec. 578, 1851; State v. Gilman, 69 Me. 163, 31 Am. Rep. 257, 3 Am. Crim. Rep. 15, 1879. [Mass.] Com. v. Hackett, 2 Allen, 136, 1861. For notes 7 and 8, see page 589. For note 9, see page 590. § 418] HOMICIDE, 589 or implied, that is, with deliberate intent or formed design so to do. The law presumes all homicides to be committed with —Reasonable doubt as to malice, defendant cannot be convicted of murder. Andrews v. State, 159 Ala. 14, 48 So. 858, 1909. Malice in law is manifest by the intentional doing of a wrongful act to the injury of another, without just cause or excuse therefor; hatred or ill-will, in the popular sense, is not an essential ingredient. [Fed.] United States v. Hart, 162 Fed. 192, 1908. [Cal.] People v. Fallon, 149 Cal. 287, 86 Pac. 689, 1906. [Del.] State v. Brinte, 4 Penn. (Del.) 551, 58 Atl. 258, 1904; State v. Powell, 5 Penn. (Del.) 24, 61 Atl. 966, 1904; State v. Brown, 5 Penn. (Del.) 339, 61 Atl. 1077, 1905; State v. Tilgh- man, 6 Penn. (Del.) 54, 63 Atl. 772, 1906; State v. Johns, 6 Penn. (Del.) 174, 65 Atl. 763, 1906; State v. Underhill, 6 Penn. (Del.) 491, 69 Atl. 880, 1908; State v. Wiggins, 7 Penn. (Del.) 127, 76 Atl. 632, 1908; State v. Russo, — Del. —, 77 Atl. 743, 1910; State v. Roberts, — Del. —, 78 Atl. 305, 1910. [Ind.] Harris v. State, 155 Ind. 265, 58 N. E. 75, 1909. [Ky.] Ludwig v. Com. 22 Ky. L. Rep. 1108, 60 S. W. 8, 1900. [Mich.] People v. Smith, 1 Mich. N. P. 81, 1870. [Mo.] State v. Baber, 11 Mo. App. 586, 1882. [Neb.] Davis v. State, 51 Neb. 301, 70 N. W. 984, 1897; McVey v. State, 57 Neb. 471, 77 N. W; 1111, 1899. [N. J.] State v. Silverio, 79 N. J. L. 482, 76 Atl. 1069, 1910. [N. C.] State v. Bald- win, 152 N. C. 822, 68 S. E. 148, 1910. [S. C.] State v. Gallman, 79 S. C. 229, 60 S. E. 682, 1908. [Tex.] Harrell v. State, 39 Tex. Crim. Rep. 204, 45 S. W. 581, 1908; Logan v. State, — Tex. Crim. Rep. —, 53 S. W. 695, 1899; Honeycutt v. State, — Tex. Crim. Rep. —, 63 S. W. 639, 1901. As to legal malice, or malice in law, and what constitutes, see supra, § 146. As to malice being matter of con- struction, or implication of law, see supra, § 1438, note 3. 7“Malice prepense is where one compasseth to kill, wound, or beat another and doth it in sedato animo. This is said, in law, to be malice aforethought, prepense, malitia pre- cogitata,” 3 Co. Inst. 51; Hill v. People, 1 Colo. 486, 1872; Redus v. People, 10 Colo. 208, 14 Pac. 323, 1887; 5 Words & Phrases, 4307. Malice defined in State v. Baber, 11 Mo. App. 586, 1882. As to what constitutes malice, see foot-note 5, this section. 8“Malice aforethought” is a de- liberate and formed design to kill, which may be manifested by acts of accused and the circumstances of the case. [Cal.} People v. Balkwell, 143 Cal. 259, 76 Pac. 1017, 1904. [Del.] State v. Primrose, — Del. —, 77 Atl. 717, 1910. [Ky.] Hill v. Com. 28 Ky. L.. Rep. 13820, 91 S. W. 1123, 1906. [Tex.] Cain v. State, 42 Tex. Crim. Rep. 210, 59 S. W. 275, 1900; Barr v. State, 56 Tex. Crim. Rep. 372, 120 S. W. 422, 1909. “Malice aforethought” necessarily implies deliberation. Marzen v, Peo- ple, 173 Ill. 43, 50 N. E. 249, 1898. “Malice aforethought” is a neces- sary element in murder. Tutt v. Com. 104 Ky. 299, 46 S. W. 675, 1898, —Shows a heart regardless of social duty and feeling, and bent on mischief. Patterson v. State, — Tex. Crim. Rep. —, 60 S. W. 557, 1901; Connell v. State, 46 Tex. Crim. Rep. 259, 81S. W. 746, 1904. “Aforethought” means a premedi- tation to do the act, however sud- denly formed in the mind of the ac- cused before the doing of the act. Jolly v. Com. 110 Ky. 190, 96 Am. St. Rep. 429, 61 S. W. 49, 1901. —Means a premeditation to kill, however long the intent may have existed in the mind; momentarily is sufficient. Freeman v. Com. — Ky. —, 118 S. W. 917, 1909. “Malice”? and “malice afore- thought” are convertible terms. Harrell v. State, 39 Tex. Crim. Rep. 204, 45 S. W. 581, 1898. é “With malice,” in the legal sense, denotes a wrongful act done inten- tionally and without just cause. Jolly v. Com. 110 Ky. 190, 96 Am. St. Rep. 429, 61 S. W. 49, 1901. As to malice aforethought, see [(U. S.] Thiede v. Utah, 159 U. S. 510, 40 L. ed. 237, 16 Sup. Ct. Rep. 62, 1895, affirming 11 Utah, 241, 39 Pac. 837, 1895; Allen v. United 590 CRIMINAL LAW. [§ 418 malice aforethought, and to constitute murder; the burden is States, 164 U. S. 492, 41 L. ed. 528, 17 Sup. Ct. Rep. 154, 1896; United States v. Cornell, 2 Mason, 91, Fed. Cas. No. 14,868, 1820. [Fed.] Unit- ed States v. Boyd, 45 Fed. 851, 1890; United States v. McGlue, 1 Curt. C. C. 1, Fed. Cas. No. 15,679, 1851. [Cal.] People v. Jefferson, 52 Cal. 452, 1877; People v. Wright, 93 Cal. 564, 29 Pac. 240, 1892. [Colo.] Hill v. People, 1 Colo. 436, 1869; Redus v. People, 10 Colo. 208, 14 Pac. 323, 1887. [Conn.] State v. Fiske, 63 Conn. 388, 28 Atl. 572, 1893. [Dak.] Territory v. Banningan, 1 Dak. 451, 46 N. W. 597, 1877. [Del.] State v. Reidell, 9 Houst. (Del.) 470, 14 Atl. 550. [Ill.] Kota v. People, 136 Ill. 655, 27 N. E. 53, 1891. [Ind.] Beauchamp v. State, 6 Blackf. 300, 1842, [Kan.] State v. White, 14 Kan. 538, 1875; State v. Fooks, 29 Kan. 425, 1883; State v. McGaffin, 36 Kan. 315, 12 Pac. 560, 1887. [Ky.] Clark v. Com. 111 Ky. 443, 63 8S. W. 740, 1901; Armstrong v. Com. 15 Ky. L. Rep. 345, 23 S. W. 654, 1893. Strutton v. Com. 23 Ky. L. Rep. 307, 62 S. W. 875, 1901. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [Mich.] Nye v. People, 35 Mich. 16, 1876; People v. Borgetto, 99 Mich. 336, 58 N. W. 328, 1894. [Miss.] Johnson v. State, 79 Miss. 42, 30 So. 39, 1901. [Mo.] State v. Curtis, 70 Mo. 594, 1879; State v. Brooks, 92 Mo, 542, 5 S. W. 257, 330, 1887; State v. Seaton, 106 Mo. 198, 17 S. W. 169, 1891; State v. Dale, 108 Mo. 205, 18 S. W. 976, 1891; State v. Avery, 113 Mo. 475, 21 8. W. 193, 1893; State v. Schaefer, 116 Mo. 96, 22 8. W. 447, 1893; State v. Howell, 117 Mo. 307, 23 S. W. 268, 1893; State v. Reed, 117 Mo. 604, 23 S. W. 886, 1893; State v. McKenzie, 144 Mo. 40, 45 S. W. 1117, 1898; State v. Harper, 149 Mo. 514, 51 S. W. 89, 1899. [Nev.] State v. Stewart, 9 Nev. 120, 1873; State v. Hing, 16 Nev. 307, 4 Am. Crim. Rep. 375, 1881; State v. Wong Fun, 22 Nev. 336, 40 Pac. 95, 1895. [N. H.] State v. Pike, 49 N. H. 399, 6 Am. Rep. 533, 1870. [N. M.] Anderson vy. Territory, 4 N. M. 213, 13 Pac. 21,1887. [N. ¥.] Darry v. People, 10 N. Y. 120, 1854; People v. Enoch, 13 Wend. 159, 27 Am. Dec. 197, 1834. [Okla.] Jewell v. Territory, 4 Okla. 53, 48 Pac. 1075. [Pa.] Com. v. Drum, 58 Pa. 9, 1868. [Tenn.] Fisher v. State, 10 Lea, 151, 1882. [Tex.] Tooney v. State, 5 Tex. App. 163, 1879; Bo- hannon v. State, 14 Tex. App. 271, 1883; McElroy v. State, 14 Tex. App. 235, 1883; Hayes v. State, 14 Tex. App. 330, 1883; Cravey v. State, 36 Tex. Crim. Rep. 90, 61 Am. St. Rep. 833, 35 S. W. 658, 1896; Stev- ens v. State, 42 Tex. Crim. Rep. 154, 59 S. W. 545, 1900; Cain v. State, 42 Tex. Crim. Rep. 210, 59 S. W. 275, 1900. [Utah] Brannigan v. People, 3 Utah, 488, 24 Pac. 767, 1869; People v. Davis, 8 Utah, 412, 32 Pac. 670, 1893. [Wis.] Hogan v. State, 36 Wis. 226, 1874. [Wyo.] Ross v. State, 8 Wyo. 351, 57 Pac. 924, 1899. See also 5 Words & Phrases, 4304— 4306. Law presumes homicide committed with malice aforethought, and to be murder, until there are shown circumstances which overcome this legal presumption, [Ala.] Brown v. State, 109 Ala. 70, 20 So. 103, 1895; Clarke v. State, 117 Ala. 1, 67 Am. St. Rep. 163, 23 So. 671, 1897. [N. J.] State v. Zellers, 7 N. J. L. 220, 1824. [N. C.] State v. Mills, 116 N. C. 992, 21 S. E. 106, 1895. [Va.] Whiteford v. Com. 6 Rand. (Va.) 21, 18 Am. Dec. 771, 1828. s“Express malice aforethought” is where the killing is with sedate, deliberate mind and formed design. This may be shown by the circum- stances surrounding the act. [Del.] State v. Di Guglielmo, 4 Penn. (Del.) 336, 55 Atl. 350, 1904; State v. Brinte, 4 Penn. (Del.) 551, 58 Atl. 258, 1904; State v. Wilson, 5 Penn. (Del.) 77, 62 Atl. 227, 1904; State v. Bell. 5 Penn. (Del.) 192, 62 Atl. 147, 1904; State v. Brown, 5 Penn. (Del.) 339, 61 At]. 1077, 1905; State v. Johns, 6 Penn. (Del.) 174, 65 Atl. 763, 1906; State v. Underhill, 6 Penn. (Del.) 491, 69 Atl. 880, 1908; State v. Mills, 6 Penn. (Del.) 495, 69 Atl. 841, 1908; State v. Borrelli, — Del. —, 76 Atl. 605, 1910; State v. Wig- gins, 7 Penn. (Del.) 127, 76 Atl. 632, 1908; State v. Russo, — Del. --, 77 Atl. 748, 1910; State v. Reese, — Del, —, 79 Atl. 217, 1911. [Tenn.] § 418] HOMICIDE, 591 on the accused to show circumstances of alleviation, excuse, or justification.” So far, however, as this definition is distinctive it is inconclusive.! Turner v. State, 119 Tenn. 663, 15 L.R.A.(N.S.) 988, 123 Am. St. Rep. 758, 108 S. W. 1139, 14 A. & E. Ann. Cas. 990, 1908. [Tex.] Cano v. State, 53 Tex. Crim. Rep. 609, 111 S. W. 406, 1908. Need not be shown to sustain a conviction of murder. State v. Mc- Dowell, 145 N. C. 563, 59 S. E. 690, 1907. ; 10Implied malice is an inference or conclusion of law from the facts found by the jury. [Fed.] Allen v. United States, 164 U. S. 492, 41 L. ed. 528, 17 Sup. Ct. Rep. 154, 1896. [Ariz.] Eytiné v. Territory, 12 Ariz. 131, 100 Pac. 448, 1909. [Del.] State v. Brinte, 4 Penn. (Del.) 551, 58 Atl. 258, 1904; State v. Honey, 6 Penn. (Del.) 148, 65 Atl. 764, 1906; State vy. Cephus, 6 Penn. (Del.) 160, 67 Atl. 150, 1906; State v. Mills, 6 Penn. (Del.) 497, 69 Atl. 841, 1908; State v. Underhill, 6 Penn. (Del.) 491, 69 Atl. 880, 1908; State v. Lee, — Del. —, 74 Atl. 4, 1909; State v. Borrelli, 76 Atl. 605, 1910; State v. Wiggins, 7 Penn. (Del.) 127, 76 Atl. 632, 1908. [Ky.] Ewing v. Com. 129 Ky. 237, 111 S. W. 352, 1908. [Mo.] State v. Wieners, 66 Mo. 18, 1877. [Tex.] Potts v. State, 56 Tex. Crim. Rep. 39, 118 S. W. 535, 1909. Malice need not be given expres- sion to at the time of the killing, or at any other time; it may be in- ferred from the facts surrounding the case. Roberson v. State, 45 Fla. 94, 34 So. 294, 1903. Malice is proved when the killing is shown to have been done suddenly, without legal justification or excuse, and without provocation reducing the crime to voluntary manslaughter. State v. Di Guglielmo, 4 Penn. (Del.) 836, 55 Atl. 350, 1903. As to malice implied and malice expressed, see supra, § 145. 11 For criticism of this definition, see infra, § 420. The above defi- nition is substantially that of Blackstone, as given in 4 Bl. Com. 195, and is constantly quoted by the courts, see among numerous cases, [Fed.] United States v. Meagher, 87 Fed. 875, 1888. [Colo.] Garvey’s ease, 7 Colo. 384, 49 Am. Rep. 858, 8 Pac. 903, 4 Am. Crim. Rep. 254, 1884, [Ind.] McDougal v. State, 88 Ind. 24, 1882. [Kan.] State v. Crawford, 11 Kan. 32, 1873. [Me.] State v. Conley, 39 Me. 78, 1854. [Mich.] People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162, 1868. [Neb.] Schaffer v. State, 22 Neb. 557, 3 Am. St. Rep. 274, 35 N. W. 384, 1887. [N. J.] State v. Zellers, 7 N. J. L. 220, 1800. [N. Y.] Darry v. People, 10 N. Y. 120, 1854. [Ohio] Fouts v. State, 8 Ohio St. 98, 1857. [Tenn.] Pirtle v. State, 9 Humph. 663, 1849. As to definition of murder, [U.S.] Wiggins v. Utah, 93 U. S. 465, 23 L. ed. 941, 1876, reversing 1 Utah, 324, 1876; Tennessee v. Davis, 100 U. S. 257, 282, 25 L. ed. 648, 656, 1880; Davis v. United States, 160 U. S. 469, 40 L. ed. 499, 16 Sup. Ct. Rep. 358, 1895. [Del.] State v. Moore, — Del. —, 74 Atl. 1112, 1910; State v. Pepe, — Del. —, 76 Atl. 367, 1910; State v. Johnson, — Del. —, 78 Atl. 605, 1910. [Il] Spies v. People, 122 Ill. 1, 3 Am. St. Rep. 320, 12 N. E. 865, 17 N. E. 898, 6 Am. Crim. Rep. 570, 1887. [Ky.] Com. v. Mos- ser, 123 Ky. 609, 118 S. W. 915, 1909; Hunn v. Com. 143 Ky. 143, 136 S..W. 144, 1911. [La.] State v. McCoy, 8 Rob. (La.) 545, 41 Am. Dec. 301, 1844; State v. Chandler, 5 La. Ann. 489, 52 Am. Dec. 599, 1850. [Mass.] Com v. York, 9 Met. 93, 43 Am. Dec. 373, 1845; Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [Mo.] Bower v. State, 5 Mo. 364, 32 Am. Dec. 325, 1838; Roberts v. State, 14 Mo. 138, 55 Am. Dec. 97, 1851. [N. C.] State v. Hill, 20 N.C. (4 Dev. & B. L.) 491, 34 Am. Dec. 396, 1839; State v. Johnson, 23 N. C. (1 Ired. L.) 354, 35 Am. Dec. 742, 1840; State v. Seott, 26 N. C. (4 Tred. L.) 409, 42 Am. Dec. 148, 1844; State v. Hildreth, 31 N. C. (9 Ired. L.) 429, 51 Am. Dec. 364, 1849. [Ohio] Sutcliffe v. State, 18 Ohio 469, 51 Am. Dec. 459, 1849. [Tenn.] Anthony v. State, Meigs, 265, 33 592 CRIMINAL LAW, [g 419 § 419. Deliberation and premeditation. Deliberation as an element of murder means the weighing of considerations.' Some of the cases say prolonged meditation.’ Strictly speak- ing, “deliberately” does not mean brooded over, considered, reflected upon a week, a day, or even an hour; but means an intent to kill, simply, executed in furtherance of a formed de- sign to gratify a feeling for revenge, or for the accomplishment of some unlawful act. No premeditation to kill the deceased is requisite, where there is a deliberate purpose to kill another, in order to constitute the homicide murder; * but it has been said unlawfully killing with malice aforethought must be found by the jury before they can convict the accused of “murder per- petrated by means of poison.” ® Deliberation and premeditation being established, the length of time it existed is immaterial; the homicide will be murder.® Design long enough for reflection preceding the killing, and being of sufficient duration for the formation of a definite pur- pose to kill, may constitute a “deliberate and premeditated de- sign to kill.”’” A fixed design to kill makes the homicide murder in the first degree; a design to kill formed on the spur of the moment makes the homicide murder in the second degree in some states,® and voluntary manslaughter in other states.° Intent to kill is not a necessary element in the crime of mur- der in those cases where the design is to perpetrate an unlawful act, and the homicide occurs in carrying out that purpose; and in such cases it is not necessary to a conviction that the jury believe beyond a doubt that the accused intended to kill the Am. Dec. 143, 1838. [Va.] White- ford v. Com. 6 Rand. (Va.) 722, 18 Am. Dec. 771, 1828; Slaughter v. 12 L.R.A.(N.S.) 935, 89 Pac. 634, 12 A. & E. Ann. Cas. 1079, 1907. 6 [Del.] State v. Wiggins, 7 Penn. Com. 11 Leigh, 681, 37 Am. Dec. 638, 1841. 1State v. Mangano, 77 N. J. L. 544, 72 Atl. 366, 1909. 2State v. Speyer, 207 Mo. 540, 14 L.R.A.(N.S.) 836, 106 S. W. 505, 1907. 8 State v. Spaugh, 200 Mo. 571, 98 S. W. 55, 1906. See State v. Honey, 6 Penn. (Del.) 148, 65 Atl. 764, 1906. 4Bradberry v. State, 170 Ala. 24, 54 So. 431, 1911. 5 State v. Phinney, 13 Idaho, 307, (Del.) 127, 76 Atl. 632, 1908. [Mo.] ‘State v. Speyer, 207 Mo. 540, 14 L.R.A.(N.S.) 836, 106 S. W. 505, 1907; State v. Davis, 226 Mo. 493, 126 S. W. 470, 1910. [Okla.} Fooshee v. State, 3 Okla. Crim. Rep. 666, 108 Pac. 554, 1910. 7People v. Chiaro, 200 N. Y. 318, 93 N. EH. 931, 1911. 8 State v. Barrett, 142 N. C. 565, 54 S. E. 856, 1906. 9 See infra, § 425. HOMICIDE. 593 § 419] decedent, or to do him bodily harm.” Intent, as an element in murder, need not exist for any definite length of time; ™ and an intent to kill a particular person is not an essential element in murder, where an unlawful act is done deliberately with the intention of killing, or of inflicting serious bodily harm, and where death ensues from such unlawful act.” —Acting on impulse of moment does not show deliberation and premeditation, and will not be sufficient to warrant a con- viction of the crime of murder.* Thus, in a case where a woman, seeking.to avoid arrest, on a dark night, was quietly stealing away in an attempt to pass beyond the state line, and an officer, without disclosing his identity or purpose, seized her by the arm, and at the same time remarked: “I have you at last,”’ whereupon she jerked a revolver from her dress and fired, killing the officer,—this was held not to show deliberation and premeditation sufficient to warrant a conviction of murder.’ Killing in a sudden affray, with malice, and unlawfully, is murder; but a deliberate intent to kill must exist at the moment when the act of killing is perpetrated to render the homicide murder.*® Such intent may be inferred under the rule that everyone is presumed to intend the natural conse- quences of his act.” Thus ee 10 Adams v. People, 169 Ill. 444,80 Am. Rep. 617, 4 Am. Crim. Rep. 351, 1884; Morello v. People, 226 Ill. 388, 8 N. E. 903, 1907; Com. v. Parsons, 195 Mass. 560, 81 N. E. 291, 1907. As to intent to kill as an essential element in murder, see note - 11 Am. Crim. Rep. 203. 11 Applied in an instance aise the homicide took place on the first meeting of the parties. Benson v. State, 51 Tex. Crim. Rep. 367, 103 S. W. 911, 1907. As to intent generally, see supra, §§ 137, et seq. “Intent” defined in State v. Hyde, 284 Mo. 200, 136 S. W. 316, 1911. As to intended injury deriving its character from the purpose to which it is incidental, see supra, § 157. As to intent disassociated from act see supra, § 152. 12 Dunaway v. People, 110 Ill. 333, 51 Am. Rep. 686, 4 Am. Crim. Rep. 60, 1884. Crim. L. Vol. I.—38. where an angry altercation leads a 18 Howard v. State, 100 S. W. 756, 1907. Intent to kill may spring up at the instant. Allen v. United States, . 164 U. S. 492, 41 L. ed. 528, 17 Sup. Ct. Rep. 154, 1906. Intent to kill on sudden impulse makes the homicide murder in second degree. State v. Barrett, 142 N. C. 565, 54 S. E. 856, 1906. 144Under Kirby’s Dig. § 1766; Howard v. State, 82 Ark. 97, 100 S. W. 756, 1907. 15 Watkins v. Com. 123 Ky. 817, 97 8S. W. 740, 1906; Benson v. State, 51 Tex. Crim. Rep. 367, 103 S. W. 911, 1907. 16 Marzen v. People, 173 Ill. 43, 50 N. E. 249, 1898. 17 [Del.] State v. Adams, 6 Penn. (Del.) 178, 65 Atl. 510, 1906. [Ga.] Hamilton v. State, 129 Ga. 747, 59 S. E. 808, 1907. [N. Y.] People v. Chiaro, 200 N. Y. 316, 93 N. E. 931, 1911. [S. C.] State v. Emerson, 78 82 Ark. 97, 594 CRIMINAL LAW. [§ 419 party to arm himself with a deadly weapon, a subsequent homi- cide is murder, or voluntary manslaughter, according to the circumstances of the case;*® and where a person discharges a firearm, accidently killing another, the act will be murder in those cases where the discharge was in an attempt to commit a homicide.” Motive need not be shown,?® and where shown to exist need not be proportionate to the heinousness of the crime.** Motives of revenge for real or imaginary wrongs previously inflicted, being the cause of the killing, the act will be murder.” Premeditation and deliberation, as an clement in murder, consist in the exercise of the judgment in weighing and con- sidering and forming and determining the intent or design to kill. In this connection the word “premeditation” means simply entertainment by the mind of an intent or design to kill.* “Premeditated design,” as used in a statute defining murder, means simply an intent to kill, a sudden intent being excluded.” S. C. 88, 58 S. E. 974, 1907. [Tex.] Bice v: State, 55 Tex. Crim. Rep. 529, 117 S. W. 163, 1909. 18 Gourko v. United States, 153 U. S. 183, 38 L. ed. 680, 14 Sup. Ct. Rep. 806, 1893; Thompson v. United States, 155 U. S. 271, 39 L. ed. 146, 15 Sup. Ct. Rep. 73, 9 Am. Crim. Rep. 209, 1894. 19 Bradberry v. State, 170 Ala. 24, 54 So. 431, 1911. Intending to kill A but killing B by an inadvertence or accident, whether murder, see Clark v. State, 78 Ala. 474, 6 Am. Crim. Rep. 527; also notes in 19 Am. Rep. 2, and 3 Am. Crim. Rep. 20; and also, cases 26 Century Dig. col. 148, § 84; 10 Decen. Dig. p. 520, § 60; Am. Digs. title “Homicide,” § 60. Recklessly firing gun into crowd, whereby a person is killed, the act is murder, and it is for the jury to say whether the murder is of the first or of the second degree. State v. Young, 50 W. Va. 96, 88 Am. St. Rep. 846, 40 S. E. 334, 1901. 20See supra, § 156. Motive for the homicide need not be shown, where defendant is proved beyond a reasonable doubt to have committed the crime. [Cal.] People v. Muhly, 15 Cal. App. 416, 114 Pac. 1017, 1911. [Ill] Clefford v. People, 229 Ill. 688, 82 N. E. 343, 1907. [Miss.] House ‘v. State, 94 Miss. 107, 21 L.R.A.(N.S.) 840, 48 So. 3, 1909. [Mo.] State v. Hyde, 234 Mo. 200, 136 S. W. 316, 1911. [N. C.] State v. McDowell, 145 N. C. 563, 59 S. E. 690, 1907. [Tex.] Butler v. State, — Tex. Crim. Rep. —, 134 S. W. 230, 1911. [Wash.] State v, Barker, 56 Wash. 510, 106 Pac. 133, 1910. “Motive” for murder defined in State v. Hyde, 234 Mo. 200, 136 S. W. 316, 1911. Motive distinguished from intent, see supra, § 155. 21See supra, § 158. 22 Turner v. State, 4 Okla. Crim. Rep. 164, 111 Pac. 988, 1910. 28 State v. Roberson, 150 N. C. 837, 64 8. E. 182, 1909. 24State v. Mangano, 77 N. J. L. 544, 72 Atl. 366, 1909. 25 Montgomery v. State, 136 Wis. 119, 18 L.R.A.(N.S.) 339, 116 N. W. 876, 1908. § 420] § 420. Criticism of definition.’ HOMICIDE. 595 Murder is distinguished from other kinds of killing by the condition of malice afore- thought; but malice is a term which requires, as has been al- ready seen, peculiar exposition and limitation.? 1See supra, § 418. 2Co. Inst. 47, 51; Rex v. Oneby, 2 Ld. Raym. 1487; 1 Hale, P. C. 425; 1 Hawk. P. C. chap. 18,°§§ 3, 8; Kel. 3d ed. p. 171; Fost. C. L. 256; 4 Bl. Com. 198; Lewis, Crim. Law. 353, 394, 5 Words & Phrases, 4632— 4634. See [Fed.] Hotemax v. United States, 186 U. S. 413, 46 L. ed. 1225, 22 Sup. Ct. Rep. 895, 1901; United States v. Carr, 3 Sawy. 302, Fed. Cas. No. 14,730, 1875; Guiteau’s Case, 10 Fed. 161, 1882; United States v. Martin, 17 Fed. 150, 1883; United States v. Meagher, 37 Fed. 875, 1888. [Ala.] Brown v. State, 109 Ala. 70, 20 So. 103, 1895; Clarke, v. State, 117 Ala. 1, 67 Am. St. Rep. 163, 23 So. 671, 1897; Brad- berry v. State, 170 Ala. 24, 54 So. 431, 1911. [Ark.] Anderson v. State, 5 Ark. 444, 1844; Dillard v. State, 65 Ark. 404, 46 S. W. 533, 1898; How- ard v. State, 82 Ark. 97, 100 S. W. 758, 1907. [Cal.] People v. Murray, 10 Cal. 309, 1858; People v. Foren, 25 Cal. 361, 1864; People v. Cronin, 34 Cal. 191, 1867; People v. Nichol, 34 Cal. 211, 1867; People v. Haun, 44 Cal. 96, 1872; People v. Jefferson, 52 Cal. 452, 1877; People v. Schmidt, 63 Cal. 28, 1882; People v. Evans, 124 Cal. 206, 56 Pac. 1024, 1899. [Colo.] May v. People, 8 Colo. 210, 6 Pac. 816, 1880; Kent v. People, 8 Colo. 563, 9 Pac. 852, 5 Am. Crim. Rep. 80, 1880; Murphy v. People, 9 Colo. 435, 13 Pac. 528, 1886; Taylor v. People, 21 Colo. 426, 42 Pac. 652, 1895; Demato v. People, 49 Colo. 147, 35 L.R.A.(N.S.) 621, 111 Pac. 703, 1910. [Dak.] Territory v. Ban- nigan, 1 Dak. 451, 46 N. W. 597, 1877. [Del.] State v. Harrigan, 9 Houst. (Del.) 369, 31 Atl. 1052, 1890; State v. Walker, 9 Houst. (Del.) 464, 33 Atl. 227, 1890; State v. Peo, 9 Houst. (Del.) 488, 33 Atl. 257, 1890; State v. Miller, 9 Houst. (Del.) 564, 32 Atl. 137, 1890; State v. Foreman, 1 Marv. (Del.) 517, 41 Atl. 140, 1895; State v. Jones, 2 Nor do the Penn. (Del.) 573, 47 Atl. 1006, 1900; State v. Brinte, 4 Penn. (Del.) 551, 58 Atl]. 258, 1904; State v. Wilson, 5 Penn. (Del.) 77, 62 Atl. 227, 1904; State v. Mills, 6 Penn. (Del.) 497, 69 Atl. 841, 1908; State v. Moore, — Del. —, 74 At]. 1112, 1910; State v. Lee, — Del. —, 74 Atl. 4, 1909; State v. Pepe, — Del. —, 76 Atl. 367, 1910; State v. Primrose, — Del. —, 77 Atl. 717, 1910; State v. Johnson, — Del. —, 78 Atl. 605, 1910; State v. Reese, — Del. —, 79 Atl. 217, 1911. [Ga.] Channell v. State, 109 Ga. 150, 34 8. E. 353, 1899. [Idaho] People v. O’Callaghan, 2 Idaho, 156, 9 Pac. 414, 1886; State v. Shuff, 9 Idaho, 115, 72 Pac. 664, 13 Am. Crim. Rep. 448, 1903; State v. Phinney, 13 Idaho, 307, 12 L.R.A.(N.S.) 935, 89 Pac. 634, 12 A. & E. Ann. Cas. 1079, 1907. [Ill] Adams v. People, 109 Til. 444, 50 Am. Rep. 617, 4 Am. Crim, Rep. 351, 1884; Kirkham v. People, 170 Ill. 9, 48 N. E. 465, 1897. [Ind. Terr.] Williams v. United States, 4 Ind. Terr. 269, 69 S. W. 871, 1902. [Kan.] Roy v. State, 2 Kan. 405, 1864; State v. Nixon, 32 Kan. 405, 4 Pac. 159, 5 Am. Crim. Rep. 307, 1884; State v. Estep, 44 Kan. 572, 24 Pac. 986, 1890; State v. Ireland, 72 Kan. 265, 83 Pac. 1036, 1905. [Ky.] Com. v. Mosser, 133 Ky. 609, 118 S. W. 915, 1909; Hunn v. Com. 143 Ky. 143, 186 S. W. 144, 1911; Combs v. Com. 33 Ky. L. Rep. 1058, 112 8. W. 658, 1908. [Me.] State v. Neal, 37 Me. 468, 1854; State v. Con- ley, 89 Me. 78, 1855. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, #1850. [Minn.] Bonfanti v. State, 2 Minn. 123, Gil. 99, 1858. [Mo.] State v. Wieners, 66 Mo. 13, 1877; State v. Thomas, 78 Mo. 327, 1883. [Mont.] State v. Sloan, 22 Mont. 293, 56 Pac. 364, 1899. [Neb.] Milton v. State, 6 Neb. 136, 1877; Marion v. State, 16 Neb. 349, 20 N. W. 289, 1884. [Nev.] State v. Thompson, 12 Nev. 140, 1878. [N. J.J] State v. Zellers, 7 N. J. L. 220, 596 CRIMINAL LAW. [§ 420 words “prepense” or “aforethought” relieve the definition from ambiguity. What is “prepense” or “aforethought?’ Can the mental processes by which conclusions are reached be measured by the flow of time? Does not intention itself logically: include prior thought? Under these circumstances we must hold that the definition just given, authoritative as it is, does not ex- haustively describe the offense of murder. And we must reach, also, a second conclusion: if the sagacity of our jurists working on this important topic for so long a series of years has been unable to construct a terse, satisfactory definition of murder, this is because such a definition cannot, from the nature of the thing to be defined, be constructed. In order, therefore, to understand what murder is, we must study the subject in the concrete. When each particular case is presented to the jury, terms can readily be found, in aid of the common law or statu- tory definition, to reach the merits of such case. But a defini- tion which is large enough to cover all cases in advance must be necessarily so general that each of its leading terms will require a new definition to make it exact.‘ 1824. [N. M.] Territory v. Lucero, 8 N. M. 543, 46 Pac. 18, 1896. [N. Y.] People v. McCann, 16 N. Y. 58, 69 Am. Dec. 642, 1857; People v. Chiaro, 200 N. Y. 316, 93 N. EB. 931, 1911; People v. Enoch, 13 Wend. 159, 27 Am. Dec. 197, 1834. [N. C.] State v. Johnson, 23 N. C. (1 Ired. L.) 354, 35 Am. Dec. 742, 1840; State v. Mills, 116 N. C. 992, 21 S. E. 106, 1895. [Okla.] Smith v. Territory, 11 Okla. 656, 69 Pac. 803, 1902. [Pa.] Kilpatrick v. Com. 31 Pa, 198, 1854; Com. v. Salyards, 158 Pa. 501, 27 Atl. 993, 1893; Com. v. Martin, 9 Kulp, 69, 1898; Kilpatrick v. Com. 3 Phila. 237, 1858; Com. v. Sayres, 12 Phila. 553, 1878; Com. v. Moore, 2 Pittsb. 502. [S. C.] State v. Cole- man, 8 8S. C. 237, 1876; State v. Symmes, 40 S. C. 388, 19 S, E. 16, 1894; State v. Bowers, 65 S. C. 207, 95 Am. St. Rep. 795, 43 S. E. 656, 1903. [Tenn.] Fields v. State, 1 Yerg. 156, 1829; Mitchell v. State, 8 Yerg. 514, 1835. [Tex.] Farrar v. State, 29 Tex. App. 250, 15 S. W. 719, 1890; Puryear v. State, 56 Tex. Crim. Rep. 231, 118 S. W. 1042, 1909. [Utah] Brannigan v. People, 3 Utah, 488, 24 Pac. 767, 1869; State v. Mc- Donald, 14 Utah, 173, 46 Pac. 872, 1896. [Vt.] State v. Meyer, 58 Vt. 457, 3 Atl. 195, 7 Am. Crim. Rep. 428, 1886. [Va.] M’Whirt’s Case, 3 Gratt. 594, 46 Am. Dec. 196, 1846; Whiteford v. Com. 6 Rand. (Va.) 721, 18 Am. Dec. 771, 1828; Robertson v. Com. 1 Va. Dec. 851, 20 S. E. 362, 1894; Harrison v. Com. 79 Va. 374, 52 Am. Rep. 634, 1884. [W. Va.] State v. Abbott, 64 W. Va. 411, 62 S. E. 693, 1908. 3 Supra, §§ 137, et seq. As to malice, see supra, §§ 106, et seq. 418; infra, §§ 318, 314; 5 Words & Phrases, 4298, et seq. 4See Wharton, Hom. § 2, and notes; and see Firby v. State, 3 Baxt. 358, 1869. Malice aforethought—Sir J. F. Stephen’s view.—According to Sir J. F. Stephen, “Malice aforethought means any one or more of the fol- lowing states of mind preceding or coexisting with the act or omission by which death is caused, and it may exist where that act is unpremedi- tated. “(a) An intention to cause the § 421] § 421. Manslaughter—Definition and kinds of. HOMICIDE, 597 Man- slaughter is defined to be the unlawful? and felonious killing of another, without malice aforethought,’ either express or im- death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not. “(b) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused. “(¢) An intent to commit any fel- ony whatever. “(d) An intent to oppose by force any officer of justice on his way to, in, or returning from the execution of the duty of arresting, keeping in custody, or imprisoning any person whom he is lawfully entitled to ar- rest, keep in custody, or imprison, or the duty of keeping the peace or dis- persing an unlawful assembly, pro- vided that the offender has notice that the person killed is such an of- ficer so employed. “The expression ‘officer of justice’ in this clause includes every person who has a legal right to do any of the acts mentioned, whether he is an officer or a private person.” Dig. Crim. Law, 5th ed. art. 244; Stout v. State, 90 Ind. 1, 1883. 1 Roberts v. United States, 61 C. C, A. 427, 126 Fed. 897, 1903. Death by suicide or premeditated killing, accused cannot be convicted of manslaughter. State v. Stratford, 149 N. C. 483, 62 S. E. 882, 1908. 21 Bl. Com. 191; 1 Hale, P. C. 449; 1 Hawk. P. C. chap. 12, §§ 1, 2. See [Fed.] Stevenson v. United States, 162 U. S. 313, 40 L. ed. 980, 16 Sup. Ct. Rep. 839, 1895; Wallace v. United States, 162 U. S. 466, 40 L. ed. 1039, 16 Sup. Ct. Rep. 859, 1895; United States v. King, 34 Fed. 302, 1888; North Carolina v. Gosnell, 74 Fed. 734, 1896. [Ala.] Hawes v. State, 88 Ala. 37, 7 So. 302, 1889; Sullivan v. State, 102 Ala. 135, 48 Am. St. Rep. 22, 15 So. 264, 1893; Clarke v, State, 117 Ala. 1, 67 Am. St. Rep. 157, 23 So. 671, 1897; Brewer v. State, 160 Ala. 66, 49 So. 336, 1909. [Ark.] Jones v. State, 88 Ark. 579, 15 S. W. 166, 1909. [Cal.] People v. Jamarillo, 57 Cal. 111, 1880. [Del.] State v. Talley, 9 Houst. (Del.) 417, 33 Atl. 181, 1894; State v. Lodge, 9 Houst. (Del.) 542, 33 Atl. 312, 1894; State v. Faino, 1 Marv. (Del.) 492, 41 Atl. 134, 1898; State v. Trusty, 1 Penn. (Del.) 319, 40 Atl. 766, 1899; State v. Cole, 2 Penn. (Del.) 344, 45 Atl. 391, 1901; State v. Brinte, 4 Penn. (Del.) 551, 58 Atl. 258, 1904; State v. Emory, 5 Penn. (Del.) 126, 58 Atl. 1036, 1904; State v. Bell, 5 Penn. (Del.) 192, 62 Atl. 147, 1904; State v. Brown, 5 Penn. (Del.) 339, 61 Atl. 1077, 1905; State v. Collins, 5 Penn. (Del.) 263, 62 Atl. 224, 1903; State v. Adams, 6 Penn. (Del.) 178, 65 Atl. 510, 1906; State v. Uzzo, 6 Penn. (Del.) 212, 65 Atl. 775, 1907; State v. Underhill, 6 Penn. (Del.) 491, 69 Atl. 880, 1908; State v. Miele, — Del. —, 74 Atl. 8, 1909; State v. Moore, — Del. —, 74 Atl. 1112, 1910; State v. Blackburn, 7 Penn. (Del.) 479, 75 Atl. 536, 1892; State v. Borrelli, — Del. —, 76 Atl. 605, 1910; State v. Wiggins, 7 Penn. (Del.) 127, 76 Atl. 632, 1908; State v. Morahan, 7 Penn. (Del.) 494, 77 Atl. 488, 1905; State v. Woods, 7 Penn. (Del.) 499, 77 Atl. 490, 1906. [Ga.] Stokes v. State, 18 Ga. 17, 1855; Bailey v. State, 70 Ga. 617, 1888; Harris v. State, 2 Ga. App. 487, 58 S. E. 680, 1907. [Ill] Peo- ple v. Bissett, 246 Ill. 516, 92 N. E. 949, 1910. [Kan.] State v. Ireland, 72 Kan. 265, 83 Pac. 1036, 1905. [Ky.] Watkins v. Com. 123 Ky. 817, 97 S. W. 740, 1906; Keeton v. Com. 32 Ky. L. Rep. 1164, 108 S. W. 315, 1908. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [Mich.] People v. Lilley, 438 Mich. 521, 5 N. W. 982, 1880. [Minn.] State v. Towers, 106 Minn. 105, 118 N. W. 361, 1908 (homicide com- mitted with dangerous weapon with design to effect death). [Mo.] State v. Curtis, 70 Mo. 594, 1879. [Neb.] 598 Boche v. State, 84 Neb. 845, 122 N. W. 72, 1909. [N. J.] State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, 1828. [N. C.] State v. Lance, 149 N. C. 551, 63 S. E. 198, 1908; State v. Baldwin, 152 N. C. 822, 68 S. E. 148, 1910. [Ohio] State v. Town, Wright (Ohio) 75, 1832. [Okla.] Tyner v. United States, 2 Okla. Crim. Rep. 689, 103 Pac. 1057, 1909. [Pa.] Kil- patrick v. Com. 31 Pa. 198, 1854; Com. v. Salyards, 158 Pa. 501, 27 Atl]. 993, 1893; Com. v. Curcio, 216 Pa, 380, 65 Atl. 792, 1907; Com. v. Martin, 9 Kulp, 69, 1898; Com. v. Sayres, 12 Phila. 558, 1878. [S. C.] State v. Hunter, 82 S. C. 153, 63 S. KE. 685, 1909; State v. Bowers, 65 S. C. 207, 95 Am. St. Rep. 795, 43 S. E. 656, 1903. [Va.] Dock v. Com. 21 Gratt. 909, 1872. [Wis.] Hogan v. State, 36 Wis. 226, 1874; Anderson v. State, 183 Wis. 601, 114 N. W. 112, 1907 (accused intending to com- mit a homicide, he is not guilty of any degree of manslaughter). See additional cases, 26 Century Dig. col. 95, § 52; 5 Words & Phrases, 4338-4342. As to what constitutes manslaugh- ter, see note 8 Am. Crim. Rep. 501- 507. As to absence of malice, see cases 26 Century Dig. col. 98, § 56; 10 Decen. Dig. p. 509, § 35; Am. Dig. title Homicide, § 35. As to nature and elements of man- slaughter, generally, see cases 26 Century Dig. col. 95, § 52; 10 Decen. Dig. p. 508, § 31; Am. Dig. title Homicide, § 31. As to absence of intention to do bodily harm, see cases, 26 Century Dig. col. 100, § 58; 10 Decen. Dig. p. 510, § 37; Am. Dig. title Homicide, § 37. As to persona] injury to others, or threats thereof, constituting ade- quate cause, see cases 26 Century Dig. col. 126, § 72; 10 Decen. Dig. p. 517, § 48; Am. Dig. title Homicide, § 48. As to adultery committed or charged, constituting a sufficient pro- vocation, see cases 26 Century Dig. col. 124, § 71; 10 Decen. Dig. p. 516, § 47; Am. Dig. title Homicide, § 47. —Manslaughter is unlawful kill- ing, without any mixture of malice CRIMINAL LAW. [§ 421 or deliberation. [Ala.] Smith v. State, 68 Ala, 424, 1880. [Cal.] Peo- ple v. Langton, 67 Cal. 427, 7 Pac. 843, 7 Am. Crim. Rep. 4389, 1886. [Colo.] May v. People, 8 Colo. 210, 6 Pac. 816, 1884. [Hawaii] Hawaii v. Hickey, 11 Haw. 314, 1898; Hawaii v. Yamane Nenchire, 12 Haw. 1839, 1899. [Ind. Terr.] Williams v. Unit- ed States, 4 Ind. Terr. 269, 69 S. W. 871, 1902. [Mont.] Territory v. Manton, 8 Mont. 95, 19 Pac. 387, 8 Am. Crim. Rep. 521, 1885. [Pa.] Com. v. Bell, Addison (Pa.) 156, 1 Am. Dec. 298, 1793. Is unlawfully killing without malice. State v. Reese, — Del. —, 79 Atl. 217, 1911. Is felonious homicide. State v. Underhill, 6 Penn. (Del.) 491, 69 Atl. 880, 1908. Is a degree in a felonious homicide. Rhea v. Territory, 3 Okla. Crim. Rep. 230, 105 Pac. 314, 1909. —Is killing in sudden affray, but without malice, under provocation such as to render accused deaf to reason, State v. Primrose, — Del. —, 77 Atl. 717, 1910; State v. Roberts, — Del. —, 78 Atl. 305, 1910. Unlawful, wilful, felonious killing without malice, mm sudden affray, heat and passion, and not in self- defense. Arnett v. Com. 137 Ky. 270, 125 8. W. 700, 1910. Must be under sudden passion caused by adequate provocation, which provocation is sufficient to make the passion irresistible. People v. Bissett, 246 Il]. 516, 92 N. E. 949, 1910. —Upon a sudden heat of passion or inadvertently, but in doing an un- lawful act. Boche v. State, 84 Neb. 845, 122 N. W. 72, 1909. Arises where one kills another in heat of blood. State v. Morahan, 7 Penn. (Del.) 494, 77 Atl. 488, 1895. Killing in sudden heat of passion or sudden affray unlawfully and without previous malice. Combs v. Com. 33 Ky. L. Rep. 1058, 112 S. W. 658, 1908. Unjustifiable and inexcusable homi- cide is where the killing is committed under circumstances which reduce the homicide below murder in the first or second degree. People v. Maine, 51 App. Div. 142, 64 N. Y. Supp. 579. § 422] ‘ HOMICIDE. 599 plied,® and is either voluntary* or involuntary® homicide, de- pending upon the fact whether there was an intention to kill or not. § 422. —Distinguished from murder, how. Manslaugh- ter is distinguished from murder by the absence of deliberation and malice aforethought.' Voluntary manslaughter is a homi- cide committed under sudden impulse of passion supposed to be irresistible, and existing upon adequate provoca- tion. Howard v. State, 2 Ga. App. 830, 59 S. E. 89, 1907. Manslaughter, under statute—See State v. Spendlove, 47 Kan. 160, 28 Pac. 994, 1891; for manslaughter un- der statutes of Kansas, see also State v. Munchrath, 78 Iowa, 268, 43 N. W. 211, 1889. 8 [Eng.] Rex v. Taylor, 2 Lewin, ©. C. 215. [Fed.] Brown v. United States, 150 U. S. 93, 37 L. ed. 1010, 14 Sup. Ct. Rep. 37; United States v. Outerbridge, 5 Sawy. 620, Fed. Cas. No. 15,978, 1868; United States v. King, 34 Fed. 302, 1888; United States v. Meagher, 37 Fed. 875, 1888. [Ala.] Hampton v. State, 45 Ala. 82, 1871; Cates v. State, 50 Ala. 166, 1873; Smith v. State, 68 Ala. 424, 1880; Jackson v. State, 74 Ala. 26, 1883; Johnson v. State, 94 Ala. 35, 10 So. 667, 1891; Martin v. State, 119 Ala. 1, 25 So. 255, 1898. [Cal.] People v. Lamb, 17 Cal. 323, 1861; People v. Williams, 75 Cal. 306, 17 Pac. 211, 1888. [Del.] State v. Brown, Houst. Crim. Rep. (Del.) 539; State v. Faino, 1 Marv. (Del.) 492, 41 Atl. 134, 1894; State v. Trusty, 1 Penn. (Del.) 319, 40 Atl. 766, 1898; State v. Cole, 2 Penn. (Del.) 344, 45 Atl. 391, 1899; State v. Brown, 4 Penn. (Del.) 120, 53 Atl. 354, 1902; State v. Emory, 5 Penn. (Del.) 126, 58 Atl. 1036, 1904. [Ga.] Stokes v. State, 18 Ga. 17, 1855; Gann v. State, 30 Ga. 67, 1860; Wheeler v. State, 42 Ga. 306, 1871. [Hawaii] Hawaii v. Hickey, 11 Haw. 314, 1898. {Ind.] Goff v. Prime, 26 Ind. 196, 1866; Bruner v. State, 58 Ind. 159, 1877; Stout v. State, 90 Ind. 1, 1883, Hasenfuss v. State, 156 Ind. 246, 59 N. E. 463, 1901. [Iowa] State v. Shelledy, 8 Iowa, 477, 1859; State v. The intent to kill being formed Abarr, 39 Iowa, 185, 1874; State v. Spangler, 40 Iowa, 365, 1875. [Me.] State v. Conley, 39 Me. 78, 1854. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [Mich.] People v. Lilley, 43 Mich, 521, 5 N. W. 982, 1880. [Miss.] Smith v. State, 58 Miss. 867, 1881. [Mo.] Rice v. State, 8 Mo. 561, 1844; State v. Rose, 142 Mo. 418, 44 S. W. 329, 1897. [N. J.] State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, 1828. [Ohio] Sutcliffe v. State, 18 Ohio, 469, 51 Am. Dee, 459, 1849; State v. Town, Wright (Ohio) 75, 1832. [Pa.] Kilpatrick v. Com. 31 Pa. 198, 1858; Com. v. Drum, 58 Pa. 9, 1868; Lynch v. Com. 77 Pa. 205, 1 Am. Crim. Rep. 283, 1874; Com. v. Brown, 7 Pa. Co. Ct. 640, 1890; Com. v. Perrier, 3 Phila. 229; Com. v. Sayres, 12 Phila. 553. ([S. C.] State v. Fleming, 2 Strobh. L. 464, 1847; State v. Le- velle, 34 S. C. 120, 27 Am. St. Rep. 799, 13 S. E. 319, 1891; State v. Workman, 39 S. C. 151, 17S. E. 694, 1892. [Tenn.] Fields v. State, 1 Yerg. 156, 1829; Anthony v. State, Meigs, 265, 33 Am. Dec. 148, 1838; Young v. State, 11 Humph. 200, 1850. [Utah] People v. Calton, 5 Utah, 451, 16 Pac. 902, 1888. [Va.] M’Whirt’s Case, 3 Gratt. 594, 46 Am. Dec. 196, 1846; Whitehurst v. Com. 79 Va. 556, 1884. 4See post, § 424; Sutcliffe v. State, 18 Ohio, 469, 51 Am. Dec. 459, 1849. 5See post, § 426; Sutcliffe v. State, 18 Ohio, 469, 51 Am. Dec. 459, 1849. 1[Eng.] Rex v. Taylor, 2 Lewin, C. C. 215. [U. S.J] Addington v. United States, 165 U. S. 184, 41 L. ed. 679, 17 Sup. Ct. Rep. 288, 1896; [Fed.] United States v. Outerbridge, 5 Sawy. 620, Fed. Cas. No. 15,978, 1868; United States v. Wiltberger, 3 Wash. C. C. 515, Fed. Cas. No. 16,- 600 CRIMINAL LAW. [§ 422 suddenly under the influence of violent passion or emotion which, for the time being, overwhelms the reason of the ac- 738, 1819; United States v. Meagher, 37 Fed. 875, 1888; United States v. Lewis, 111 Fed. 630, 1901. [Ala.] Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282, 1853; Tidwell v. State, 70 Ala. 38, 1881; Jackson v. State, 74 Ala. 26, 1883; Prior v. State, 77 Ala. 56, 1884; Hornsby v. State, 94 Ala. 55, 10 So. 522, 1891; Martin v. State, 119 Ala. 1, 25 So. 255, 1898. [Ark.] Bivens v. State, 11 Ark. 455, 1850. [Cal.] People v. Lamb, 17 Cal. 323, 1861; People v. Crowey, 56 Cal. 36, 1880; People v. Samsels, 66 Cal. 99, 4 Pac. 1061, 1884; People v. Williams, 75 Cal. 306, 17 Pac. 211, 1888. [Del.] State v. List, Houst Crim. Rep. (Del.) 138; State v. Till, Houst. Crim. Rep. (Del.) 233; State v. Pratt, Houst. Crim. Rep. (Del.) 249; State v. Draper, Houst. Crim. Rep. (Del.) 291; State v. Vines, Houst. Crim. Rep. (Del.) 424; State v. Draper, Houst. Crim. Rep. (Del.) 531; State v. Dugan, Houst. Crim. Rep. (Del.) 568; State v. Brinte, 4 Penn. (Del.) 551, 58 Atl. 258, 1904. [Ga.] Stokes v. State, 18 Ga. 17, 1855. [Ill.] Smith v. People, 142 Il. 117, 31 N. E. 599, 1892; Moore v. People, 146 Ill. 600, 35 N. E. 166, 1893. [Ind.] Dennison v. State, 13 Ind. 510, 1859; Creek v. State, 24 Ind. 151, 1865; Murphy v. State, 31 Ind. 511, 1869; Patterson v. State, 66 Ind. 185, 1879. [Iowa] State v. Shelledy, 8 Iowa, 477, 1859; State v. Spangler, 40 Iowa, 365, 1875; State v. Peffers, 80 Iowa, 580, 46 N. W. 662, 1890; State v. Windahl, 95 Iowa, 470, 64 N. W. 420, 1895. [Ky.] Buckhannon v. Com. 86 Ky. 110, 5 S. W. 358, 1887; Pence v. Com. 21 Ky. L. Rep. 500, 51 S. W. 801, 1899. [La.] State v. Newton, 28 La. Ann. 65, 1876. [Me.] State v. Field, 14 Me. 244, 31 Am. Dec. 52, 1837; State v. Knight, 43 Me. 11, 1857. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [Mich.] Pond v. People, 8 Mich. 150, 1860; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, 1862; People v. Palmer, 96 Mich. 580, 55 N. W. 994, 1893. [Miss.] McDaniel v. State, 8 Smedes & M. 401, 47 Am. Dec. 93, 1847; Smith v. State, 58 Miss. 867, 1881. [Mo.] Bower v. State, 5 Mo. 364, 32 Am. Dec. 325, 1838; Roberts v. State, 14 Mo. 138, 55 Am. Dec. 97, 1851; State v. Holcomb, 86 Mo. 371, 1885. [Nev.] State v. Levigne, 17 Nev. 485, 30 Pac. 1084, 1883. [N. C.] State v. Norris, 2 N. GC (1 Hayw.) 429, 1 Am. Dec. 565, 1796; State v. Hill, 20 N. C. (4 Dev. & B. L.) 491, 34 Am. Dec. 396, 1839; State v. Hildreth, 31 N. C. (9 Ired. L.) 429, 51 Am. Dec. 364, 1849; State v. Jones, 98 N. C. 651, 3 S. E. 507, 1887. [Pa.] State v. Bell, Addison (Pa.) 156, 1 Am. Dec. 298, 1798; State v. Lewis, Addison (Pa.) 279, 1796; Kil- patrick v. Com. 31 Pa. 198, 1858; Com. v. Drum, 58 Pa. 9, 1868; Lynch v. Com. 77 Pa. 205, 1 Am. Crim. Rep. 283, 1874; Com. v. Morrison, 193 Pa. 613, 44 Atl. 918, 13 Am. Crim. Rep. 247, 1899. [S. C.] State v. Ferguson, 2 Hill, L. 619, 27 Am. Dec. 412, 1835; State v. Smith, 10 Rich. L. 341, 1857. [Tenn.] Fields v. State, 1 Yerg. 156, 1829; Grainger v. State, 5 Yerg. 459, 26 Am. Dec. 278, 1830; Anthony v. State, Meigs, 265, 33 Am. Dec. 143, 1838; Nelson v. State, 10 Humph. 518, 1850. [Tex.] Chandler v. State, 2 Tex. 305, 1847. [Va.] King v. Com. 2 Va. Cas. 78; Whiteford v. Com. 6 Rand. (Va.) 721, 18 Am. Dee. 771, 1828; M’Whirt’s Case, 3 Gratt. 594, 46 Am. Dec. 196,'1846. [W. Va.] State v. Scott, 836 W. Va. 704, 15 S. E. 405, 1892. Homicide, or the mere killing of one person by another, does not, of itself, constitute murder; it may be murder, or manslaughter, or excus- able or justifiable homicide, and therefore entirely innocent, accord- ing to the circumstances, or state of mind or purpose which reduced the act. It is not, therefore, the act which constitutes the offense or de- termines the character; but the quo animo, the disposition, or state of mind, with which it is done. Actus non facit reum, nisi mens sit rea, Pond v. People, 8 Mich. 150, 1860; § 423] HOMICIDE. 601 cused.” It is not the weapon used,® nor the intention to kill,* which fixes the grade of the crime, but the uncontrollable pas- sion, aroused by adequate provocation, which for the time being renders the accused incapable of reasoning and unable to con- trol his actions.° § 423. Statutory manslaughter. In most, if not all of the states in the Union, statutes have been passed defining man- slaughter, dividing the crime into degrees,’ and regulating the punishment according to the degree. Some of these statutes divide the crime into two degrees corresponding to the common- law divisions of voluntary and involuntary manslaughter, with- out attempting to divide the crime or defining it according to Maher v. People, 10 Mich. 212, 81 Am. Dee. 781, 1862. To give homicide the legal char- acter of murder, all the authorities agree that it must have been per- petrated with malice prepense or aforethought. This malice is just as essential an ingredient of the of- fense as the act which causes the death; without the concurrence of both, the crime cannot exist; and as every man. is presumed innocent of the offense with which he is charged till he is proved to be guilty, this presumption must apply equally to both ingredients of the offense,—to the malice as well as to the killing. Hence, though the principle seems to have been sometimes overlooked, the burden of proof as to each rests equally upon the prosecution, though the one may admit and require more direct proof than the other; malice, in most cases, not being susceptible of direct proof, but to be established by inferences more or less strong, to be drawn from the-facts and circum- stances connected with the killing, and which indicate the disposition or state of mind with which it was done. Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, 1862. See Patten v. People, 18 Mich. 314, 100 Am. Dec. 173, 1869; Roberts v. People, 19 Mich. 415, 1870; People v. Marble, 38 Mich. 124, 1878; Thomas v. Peo- ple, 39 Mich. 312, 1878. Burden is on the accused to miti- gate or excuse the homicide. Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850; Silvus v. State, 22 Ohio St. 90, 1871. —Excuse or justification appearing from proof offered by prosecuted, or from the circumstances attending the killing, the burden of proof is shift- ed to the prosecution. Com. v. McKie, 1 Gray, 61, 61 Am. Dee. 410, 1854. 2See supra, § 418. 8 People v. Crowey, 56 Cal. 36, 1880; People v. Kernaghan, 72 Cal. 620, 14 Pac. 566, 1887; Spearman v. State, 23 Tex. App. 224, 4 S. E. 586, 1887. 4[Cal.] People v. Freel, 48 Cal. 436, 1874; People v. Crowey, 56 Cal. 36, 1880. [Ind.] Murphy v. State, 31 Ind. 511, 1869. [Iowa] State v. McGuire, 87 Iowa, 142, 54 N. W. 202, 1893. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [Mich.] Nye v. People, 35 Mich. 16, 1876. [Nev.] State v. Ah Mook, 12 Nev. 369, 1877; State v. Vaughan, 22 Nev. 286, 39 Pac. 733, 1895. [Ohio] Erwin v. State, 29 Ohio St. 186, 23 Am. Rep. 733, 2 Am. Crim. Rep. 251, 1870. 5 True test of manslaughter and murder in second degree is that it was committed under the immediate influence of sudden passion, for which there was an adequate cause. Coch- ran v. State, 28 Tex. App. 422, 13 S. W. 651, 8 Am. Crim. Rep. 496, 1890. 1 As to degrees of homicide under statute, see 26 Century Dig. col. 160, §§ 103-105; 10 Decen. Dig. p. 526, §§ 76-79; Am. Dig. §§ 76-79. 602 CRIMINAL LAW. [§ 423 the common law;?* other of these statutes change or supplement the common law in regard to this offense, including new ele- ments*® and making acts which before were no offense man- slaughter in some one of the specified degrees. Thus at com- mon law it is not manslaughter to kill an unborn child,* and by some of the statutes this is made manslaughter.’ Where a stat- ute is passed defining manslaughter, dividing the crime into de- grees and providing for punishment according to the degree, such statute has no application to offenses committed before its passage, or before its going into effect.® 2[Ala.] Thomas v. State, 139 Ala. 80, 36 So. 734, 1904; Heninburg v. State, 151 Ala. 26, 43 So, 959, 1907; Reynolds v. State, 154 Ala. 14, 45 So. 894, 1908. [Ga.] Roberts v. State, 3 Ga. 310, 1847; Stokes v. State, 18 Ga. 17, 1855; Wheeler v. State, 42 Ga. 306, 1871. [Ind.] Goff v. Prime, 26 Ind. 196, 1866; Kelley v. State, 53 Ind. 311, 1876. [Iowa] State v. Shelledy, 8 Iowa, 477, 1859. [Kan.] State v. Bassnett, 80 Kan. 392, 102 Pac. 461, 1909. [Ky.] Conner v. Com. 13 Bush, 714, 1878. [Mo.] State v. Darling, 199 Mo. 168, 97 S. W. 592, 1906. [Neb.] Beers v. State, 24 Neb. 614, 39 N. W. 790, 1888. LN. H.] State v. Greenleaf, 71 N. H. 606, 54 Atl. 38, 1902. [N. Y.] Peo- ple v. Darragh, 141 App. Div. 408, 126 N. Y. Supp. 522, 1910. [Ohio] Sutcliffe v. State, 18 Ohio, 469, 51 Am. Dec. 459, 1849; Williams v. State, 35 Ohio St. 175, 1878. [Okla.] Turner v. State, 4 Okla. Crim. Rep. 164, 111 Pac. 988, 1910. [Wis.] Duthey v. State, 131 Wis. 178, 10 L.R.A.(N.S.) 1032, 111 N. W. 222, 1907. 3 Reynolds v. State, 33 Fla. 301, 14 So. 723, 1894; State v. Nash, 63 Kan. 879, 64 Pac. 1025, 1901. See also cases cited infra, note 5, this section. 4See supra, § 418, and cases cited. 5 [Fla.] Williams v. State, 34 Fla. 217, 15 So. 760, 1888. [Miss.] State v. Prude, 76 Miss. 543, 24 So. 871, 11 Am. Crim. Rep. 466, 1898. [Mo.] State v. Emerich, 13 Mo. App. 492, 1883. [N. Y.] Lohman v. People, 1 N. Y. 379, 49 Am. Dec. 340, 1848; Evans v. People, 49 N. Y. 86, 1872. [Wis.] Hatchard v. State, 79 Wis. 357, 48 N. W. 380, 1891. 6See Reynolds v. State, 33 Fla. 301, 14 So. 723, 1894. Statute in force at time of com- mission of offense governs.—In the above cases the court says that un- der the provision of the statute pro- viding that no penalty and forfeiture incurred prior to its taking effect shall be affected thereby, and no prosecution had or commenced shall be abated thereby, except that when a punishment or forfeiture or penal- ty shall have been mitigated by the provision of the statute, such pro- vision shall apply to and control any judgment or sentence to be pro- nounced,—all prosecutions are to be conducted according to the provision of the law in force at the time of such further prosecution and trial applicable to the case; adding: ‘In our judgment, the criminal law de- fining the different grades of unlaw- ful homicide, including that of man- slaughter, that was in force on the twenty-fourth day of December, 1891 [the date of the crime charged], is the law by which the guilt of the accused was to be ascertained, and, in view at least of the different grades of manslaughter and their definitions, the same is true as to the punishment to be inflicted,” cit- ing Mathis v. State, 31 Fla. 291, 12 So. 681, 1893. —Constitutional provision of state in relation to the matter is: “The repeal or amendment of any crimi- nal statute shall not affect the prosecution or punishment of any crime committed before such repeal § 424] § 424. Voluntary manslaughter. HOMICIDE. 603 Voluntary manslaugh- ter is an intentional killing, without malice, in hot blood pro- duced by adequate cause,’ and differs from murder in this, or amendment,” and this provision controls. See Lovett v. State, 31 Fla. 164, 12 So. 452, 1893; Murphy v. State, 31 Fla. 166, 12 So. 453, 1893; Hall v. State, 31 Fla. 176, 12 So. 449, 1893. 1 [Fed.] United States v. Meagher, 37 Fed. 875, 1888. [Ark.] Jones v. State, 88 Ark. 579, 115 S. W. 166, 1909. [Del.] State v. Warren, 1 Marv. (Del.) 487, 41 Atl. 190, 1893; State v. Trusty, 1 Penn. (Del.) 319, 40 Atl. 766, 1898; State v. Wallace, 2 Penn. (Del.) 402, 47 Atl. 621, 1899; State v. Adams, 6 Penn. (Del.) 178, 65 At]. 510, 1906; State v. Underhill, 6 Penn. (Del.) 491, 69 Atl. 880, 1908; State v. Moore, — Del. —, 74 Atl. 1112, 1910. State v. Blackburn, 7 Penn. (Del.) 479, 75 Atl. 536, 1892; State v. Morahan, 7 Penn. (Del.) 494, 77 Atl. 488, 1895. State v. Woods, 7 Penn. (Del.) 499, 77 Atl. 490, 1896; State v. Russo, — Del. —, 77 Atl. 748, 1911; State v. Prim- rose, — Del. —, 77 Atl. 717, 1910; State v. Reese, — Del. —, 79 Atl. 217, 1911. [Ga.] Roberts v. State, 3 Ga. 310, 1847; Gann v. State, 30 Ga. 67, 1860; Mixon v. State, 7 Ga. App. 805, 68 S. E. 315, 1910. [Ind.] Creek v. State, 24 Ind. 151, 1865; Stout v. State, 90 Ind. 1, 1883. [Ind. Terr.] Bias v. United States, 3 Ind. Terr. 27, 53 S. W. 471, 1899. [Ky.] Lewis v. Com. 93 Ky. 238, 19 S. W. 664, 1892; Wheatley v. Com. 26 Ky. L. Rep. 436, 81S. W. 687, 1904. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [Mich.] People v. Lilley, 43 Mich. 521, 5 N. W. 982, 1880; [Miss.] Preston v. State, 25 Miss. 383, 1853. [Mo.] State v. Holme, 54 Mo. 158, 1873; State v. Ellis, 74 Mo. 207, 1881; State v. Lockwood, 119 Mo. 462, 24 S. W. 1015, 1894. [Neb.] Boche v. State, 84 Neb. 845, 122 N. W. 72, 1909. [Nev.] State v. Ah Mook, 12 Nev. 369, 1877. [N. J.] State v. Zellers, 7 N. J. L. 220, 1824. [N. Y¥.] Mce- Cann v. People, 6 Park. Crim. Rep. 629. [N. C.] State v. Hill, 20 N. C. (4 Dev. & B. L.) 629, 34 Am. Dec. 396, 1839; State v. Johnson, 23 N. C. (1 Ired. L.) 354, 35 Am. Dec. 742, 1840; State v. Lance, 149 N. C. 551, 63 S. E. 198, 1908; State v. Baldwin, 152 N. C. 822, 68 S. E. 148, 1910. [Pa.] Com. v. Mor- rison, 193 Pa. 613, 44 Atl. 913, 13 Am. Crim. Rep. 247, 1899. [S. C.] State v. Ferguson, 2 Hill, L. 619, 27 Am. Dec. 412, 1835; State v. Hun- ter, 82 S. C. 153, 63 S. E. 685, 1909. [Vt.] State v. McDonnell, 32 Vt. 491, 1860. [Va.] Slaughter v. Com. 11 Leigh, 681, 37 Am. Dec. 638, 1841; Whitehurst v. Com. 79 Va. 556, 1884. Accomplice in manslaughter, none; all are principals. Burnam v. State, — Tex. Crim. Rep. —, 1385 S. W. 1175, 1911. Conspiracy to commit man- slaughter may be entered into. Fer- guson v. State, 149 Ala. 21, 43 So. 16, 1907. Manslaughter being an unpremedi- tated homicide, there can be no con- spiracy to commit the offense. Gal- loway v. Com. 5 Ky. L. Rep. 213; 1883. Definition of voluntary man- slaughter above given is quoted in Bias v. United States, 3 Ind. Terr. 27, 53 S. W. 471, 1899. Involuntary manslaughter has been defined as a killing committed by accident, or without any inten- tion to take life. United States v. Outerbridge, 5 Sawy. 620, Fed. Cas. No. 15,978, 1868. —Accidental killing held man- slaughter. McCullough v. State, — Tex. Crim. Rep. —. 136 S. W. 1055, 1911. —Act unlawful not amounting to a felony, nor likely to endanger life, is the definition found in some of the cases. Conner v. Com. 13 Bush. 714, 1878; Trimble v. Com. 78 Ky. 176, 1880. —Killing a human being without any intention to do so; or in the commission of a lawful act which might produce death in an unlawful manner; or in the commission of an 604 CRIMINAL LAW. [§ 424 that though the act which occasions the death be unlawful,? or likely to be attended with bodily mischief, yet the malice afore- thought, which is the essence of murder, is presumed to be want- ing; and the act being imputed to the infirmity of human nature, the punishment is proportionately lenient.® § 425. —Elements of. The characteristic element of vol- untary manslaughter is that it is committed upon a sudden heat of passion, aroused by due provocation, and without malice.* unlawful act. [Ala.] Johnson v. State, 94 Ala. 35, 10 So. 667, 1891. [Cal.] People v. Biggins, — Cal. —, 3 Pac. 853, 1884. [Del.] State v. Mil- ler, 9 Houst. (Del.) 564, 32 Atl. 137, 1890; State v. Trusty, 1 Penn. (Del.) 319, 40 Atl. 766, 1899; State v. Jones, 2 Penn. (Del.) 573, 47 Atl. 1006, 1900. [Ga.] Daly v. Stoddard, 66 Ga. 145, 1880. [Idaho] People v. Mooney, 2 Idaho, 17, 2 Pac. 876, 1891. [Mo.] State v. Lockwood, 119 Mo. 463, 24 S. W. 1015, 1894. [Mont.] Territory v. Manton, 8 Mont. 95, 19 Pac. 387, 8 Am. Crim. Rep. 521, 1885. [Pa.] Com. v. Gable, 7 Serg. & R. 423, 1821. Distinguished from excusable homicide by misadventure, in that the latter always happens in the do- ing of an unlawful act. Bias v. United States, 3 Ind. Terr. 27, 53 S. W. 471, 1899; Trimble v. Com. 78 Ky. 176, 1848. Negligent use of dangerous agency resulting in death is voluntary man- slaughter. State v. Lockwood, 119 Mo. 463, 24 S. W. 1015, 1894. 2State v. Harmon, 4 Penn. (Del.) 580, 60 Atl. 866, 1902. 81 East, P. C. 282. Lord Corn- wallis’s Case, Dom. Proc. 1678; 2 St. Tr. 730. [Fed.] Com. v. Biron, 4 Dall. 125, 1 L. ed. 769, 1792. [Ala.] Perry v. State, 48 Ala. 21, 1870; Sullivan v. State, 102 Ala. 135, 48 Am. St. Rep. 22, 15 So. 264, 1894. [Cal.] People v. Freel, 48 Cal. 436, 1871. [Ga.] Stokes v. State, 18 Ga. 17, 1853; Boatright v. State, 89 Ga. 140, 15 S. E. 21, 1892. [Ill] Davis v. People, 114 Ill. 86, 29 N. E. 192, 1885; Smith v. People, 142 Ill. 117, 31 N. E. 599, 1892. [Ind.] Murphy v. State, 31 Ind. 511, 1869; Stout v. State, 90 Ind. 1, 1883, [Ky.] Von Gundy v. Com. 11 Ky. L. Rep. 552, 12 S. W. 386, 1889. [Mass.] Parker, J., Selfridge’s Case, Wharton, Homi- cide, p. 693, appx. 1806. [N. Y.] Ex parte Tayloe, 5 Cow. 39, 1825. [Ohio] Erwin v. State, 29 Ohio St. 186, 23 Am. Rep. 738, 2 Am. Crim. Rep. 281, 1876. [Pa.] Com. v. Lewis, Addison (Pa.) 279, 1796; Com. v. Drum, 58 Pa. 9, 1868. [S. C.] State v. Smith, 10 Rich. L. 341, 1855. [Tex.] Williams v. State, 21 Tex. App. 256, 17S. W. 156, 1884. [Va.] Com. v. Mitchell, 1 Va. Cas. 116, 1817. 14 Bl. Com. 191; 1 Hale, P. C. 466; 1 Hawk. P. C. chap. 30. [Eng.] Rex v. Hayward, 6 Car. & P. 157; Rex v. Rankin, Russ. & R. C. CG. 32. [Fed.] United States v. Mingo, 2 Curt. C. C. 1, 17 Law. Rep. 435, Fed. Cas. No. 15,781, 1854. [Eng.] Reg. v. Mawgridge, J. Kelyng (3d ed.) 166, 1709; United States v. Meagher, 37 Fed. 875, 1888; United States v. Lewis, 111 Fed. 630, 1901. [Ala.] Smith v. State, 83 Ala. 26, 3 So. 551, 1887; Martin v. State, 119 Ala. 1, 25 So. 255, 1898. [Cal.] People v. Freel, 48 Cal. 436, 1874; People v. Crowley, 56 Cal. 36, 1880; People v. Kernaghan, 72 Cal. 609, 14 Pac. 566, 1887; People v. Bruggy, 93 Cal. 476, 29 Pac. 26, 1892; People v. McFarlane, 138 Cal. 481, 61 L.R.A. 245, 71 Pac. 568, 72 Pac. 48, 1903. [Colo.] Crawford v. People, 12 Colo. 290, 20 Pac. 769, 1888. [Del.] State v. Warren, 1 Marv. (Del. 487, 41 Atl. 190, 1893; State v. Trusty, 1 Penn. (Del.) 319, 40 Atl. 766, 1898; State v. Wallace, 2 Penn. (Del.) 402, 47 Atl. 621, 1899; State v. Jones, 2 Penn. (Del.) 573, 47 Atl. 1006, 1900; State v. Adams, 6 Penn. (Del.) 178, 65 Atl. 510, 1906; State § 425] HOMICIDE. 605 The passion thus aroused must be so violent as to dethrone the reason of the accused, for the time being; and prevent thought v. Blackburn, 7 Penn. (Del.) 479, 75 Atl. 536, 1892; State v. Mora- han, 7 Penn. (Del.) 494, 77 Atl. 488, 1895. [D. C.] United States v. Heath, 20 D. C. 272, 1891, appeal dismissed in 144 U. S. 92, 36 L. ed. 358, 12 Sup. Ct. Rep. 615, 1892. [Ga.] Roberts v. State, 3 Ga. 310, 1847; Ray v. State, 15 Ga. 223, 1854; Stokes v. State, 18 Ga. 17, 1855; Gann v. State, 30 Ga. 67, 1860;: Jackson v. State, 82 Ga. 449, 9 8. EH. 126, 1889; McDuffie v. State, 90 Ga. 786, 17 S, E. 105, 1892; Bat- tle v. State, 92 Ga. 465, 17 S. E. 861, 1893; Caruthes v. State, 95 Ga, 343, 22 S. E. 837, 1894. [TIL] Davis v. People, 114 Ill. 86, 29 N. E. 192, 1885; Smith v. People, 142 Til. 117, 31 N. E. 599, 1892. [Ind.] Dennison v. State, 13 Ind. 510, 1859; Creek v. State, 24 Ind. 151, 1865; Ex parte Moore, 30 Ind. 197, 1868; Murphy v. State, 31 Ind. 511, 1869; Bruner v. State, 58 Ind. 159, 1877; Stout v. State; 90 Ind. 1, 1883. [Iowa] State v. Decklotts, 19 Iowa, 447, 1865; State v. Hunter, 118 lowa, 686, 92 N. W. 872, 1902. ({Ky.] Lewis v. Com. 93 Ky. 238, 19 S. W. 664, 1892; Smith v. Com. 133 Ky. 532, 118 S. W. 368, 1909; Bennytield v. Com. 15 Ky. L. Rep. 321, 22 S. W. 1020, 1893; Handly v. Com. 15 Ky. L. Rep. 736, 24 8S. W. 609, 1894; Arnold v. Com. 21 Ky. L. Rep. 1566, 55 S. W. 894, 1900; Keeton v. Com. 32 Ky. L. Rep. 1164, 108 S. W. 315, 1908. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [Mich.] People v. Pond, 8 Mich, 150, 1860; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, 1862; People v. Lil- ley, 43 Mich. 521, 5 N. W. 982, 1880. [Miss.] Preston v. State, 25 Miss. 383, 1853; Smith v. State, 58 Miss. 867, 1881; McDonald v. State, 78 Miss. 369, 29 So. 171, 13 Am. Crim. Rep. 396, 1900. [Mo.] State v. Holme, 54 Mo. 153, 1873; State v. Ellis, 74 Mo. 207, 1881; State v. O’Hara, 92 Mo. 59, 4 8. W. 422, 1887; State v. Gassert, 4 Mo. App. 44, 1877. [Nev.] State v. Ah Mook, 12 Nev. 369, 1877; State v. Vaughan, 22 Nev. 285, 89 Pac. 733, 1895. [N. J.] State v. Zellers, 7 N. J. L. 220, 1824. [N. Y.] People v. John- son, 1 Park. Crim. Rep. 291, 1851; McCann v. People, 6 Park. Crim. Rep. 629. [N. C.] State v. Hill, 20 N. C. 629 (4 Dev. & B. L. 491), 34 Am. Dec. 396, 1839; State v. John- son, 23 N. C. (1 Ired. L.) 354, 35 Am. Dec. 742, 1840; State v. Tilly, 25 N. C. (3 Tred. L.) 424, 439, 1843; State v. Curry, 46 N. C. (1 Jones, L.) 285, 1854; State v. Gentry, 47 N. C. (2 Jones, L.) 406, 1855; State v. Owen, 61 N. C. (Phill. L.) 425, 1868; State v. Ta-cha-na-tah, 64 N. C. 618, 1870. [Ohio] Erwin v. State, 29 Ohio St. 186, 23 Am. Rep. 733, 2 Am. Crim. Rep. 251, 1876. [Oreg.] State v. Henderson, 24 Or. 100, 32 Pac. 1080. [Pa.] Kilpatrick v. Com. 31 Pa, 198, 1858; Com. v. Drum, 58 Pa. 9, 1868; Abernethy v. Com. 101 Pa. 322, 1882; Com. v. Ware, 137 Pa. 465, 20 Atl. 806, 1890; Com. v. Morrison, 193 Pa. 613, 44 Atl. 913, 13 Am. Crim. Rep. 247, 1899; Com. v. Ellenger, 1 Brewst. (Pa.) 352, 1867; Com. v. Martin, 9 Kulp, 69, 1898. [S. C.] State v. Ferguson, 2 Hill, L. 619, 27 Am. Dec. 412, 1835; State v. Jacobs, 28 S. C. 29, 4 S. E. 799, 1887; State v. Bowers, 65 S. C. 207, 95 Am. St. Rep. 795, 43 S. E. 656, 1903. [Tenn.] Young v. State, 11 Humph. 200, 1850; Haile v. State, 1 Swan, 248, 1851; Quarles v. State, 1 Sneed, 407, 1853. [Tex.] Boyett v. State, 2 Tex. App. 93, 1877; Dan- forth v. State, 44 Tex. Crim. Rep. 105, 69 S. W. 159, 1902; Brown v. State, 45 Tex. Crim. Rep. 139, 75 S. W. 33, 1903. [Vt.] State v. Mc- Donnell, 32 Vt. 491, 1860. [Va.] Slaughter v. Com. 11 Leigh, 681, 37 Am. Dec. 638, 1841; Whitehurst v. Com. 79 Va. 556, 1884; Brown v. Com. 86 Va. 466, 10 S. E. 745, 1890. [W. Va.] State v. Dickey, 48 W. Va. 325, 37 S. E. 695, 15 Am. Crim. Rep. 485, 1900. As to elements of voluntary man- slaughter, see cases 26 Century Dig. 606 and reflection, and the formation of a deliberate purpose. CRIMINAL LAW. [§ 425 The theory of the law is that malice and passion of this degree cannot coexist in the mind at the same time;* and the grade of the offense is fixed by the preponderance of passion, or the legal presumption that the act was revenge. Mere anger, in and malicious and for motives of of itself, is not sufficient, but must be of such a character as to prevent the individual from cool reflection and a control of his actions.? Such passion must col. 96, § 55; 10 Decen. Dig. p. 509, § 34; Am. Dig. title Homicide, § 34. Killing without malice in sudden affray, heat of passion, and not in self-defense, will constitute volun- tary manslaughter. Arnett v. Com. 137 Ky. 270, 125 S. W. 700, 1910. Heat of blood arising from fight or other provocation, sufficient to render homicide voluntary man- slaughter. State v. Blackburn, 7 Penn. (Del.) 479, 75 Atl. 536, 1892. 2Hornsby v. State, 94 Ala. 55, 10 So. 522, 1891; Martin v. State, 119 Ala. 1, 25 So. 255, 1898. 8 [Ala.] Martin v. State, supra. [Del.] State v. Roberts, — Del. —, 78 Atl. 305, 1910. [Ga.] Harris v. State, 2 Ga. App. 487, 58 S. W. 680, 1907; Howard v. State, 2 Ga. App. 830, 59 S. E. 89, 1907. [Ill] Peo- ple v. Bissett, 246 Ill. 516, 92 N. E. 949, 1910. [Ky.] Arnold v. Com. 21 Ky. L. Rep. 1566, 55 S. W. 894, 1900; Watkins v. Com. 123 Ky. ‘817, 97 S. W. 740, 1906; Hocker v. Com. 33 Ky. L. Rep. 944, 111 S. W. 676, 1908. [Mich.] People v. Poole, 159 Mich. 350, 134 Am. St. Rep. 722, 128 N. W. 1093, 1909. [N. C.] State v. Will, 18 N. C. (1 Dev. & L.) 121, 1834. [Okla.] Ex parte Bollin, 3 Okla. Crim. Rep. 725, 109 Pac. 288, 1910. [Tex.] Boyett v. State, 2 Tex. App. 98, 1877; Miller v. State, 27 Tex. App. 63, 10 &. W. 445, 1889;,Cochran v. State, 28 Tex. App. 422, 13 S. W. 651, 8 Am. Crim. Rep. 496, 1890; Norris v. State, 42 Tex. Crim. Rep, 559, 61 S. W. 4938, 1901; Hatchell v. State, 47 Tex. Crim. Rep. 380, 84 S. W. 234, 1904; Kannmacher v. State, 51 Tex. Crim. Rep. 118, 101 S. W. 238, 1907; Casey v. State, 54 Tex. Crim. Rep. 584, 113 S. W. 534, 1908; Winn v. State, 54 Tex. Crim. Rep. 538, 113 S. W. 918, 1908. [Wis.] Ryan v. State, 115 Wis. 488, 92 N. W. 271, 1902; Johnson v. State, 129 Wis. 146, 5 L.R.A.(N.S.) 809, 108 N. W. 55, 9 A. & E. Ann. Cas. 923, 1906. “Adequate cause” does not require that the anger or passion should be sudden. Gillespie v. State, 53 Tex. Crim. Rep. 167, 109 S. W. 158, 1908. Intent to kill need not be formed in a sudden transport of passion, on adequate cause; but it is enough if the mind is excited to such a degree as not to be capable of cool reflection, from some adequate cause. Kannmacher v. State, 51 Tex. Crim. Rep. 118, 101 S. W. 238, 1907. —Killing on sudden heat of pas- sion due to adequate provocation and without malice is manslaughter because the law presumes the pas- sion thus aroused disturbs his rea- son, and not because the law sup- poses that the passion made the accused unconscious of what he was about to do. McBryde v. State, 156 Ala. 44, 47 So. 302, 1908. In such a case the killing must be under the impulse of the passion thus aroused, and not in the spirit of revenge. Harris v. State, 2 Ga. App. 487, 58 S. E. 680, 1907. To justify a claim of excitement or passion, and to exclude the idea of deliberation, there must be some actual assault upon the accused, or an attempt by the deceased to com- mit a serious personal injury, or equivalent circumstances. Harris v. State, 2 Ga. App. 487, 58 S. E. 680, 1907. Passion must be engendered at the time of the difficulty, and not by the § 425] HOMICIDE. 607 be produced by due and adequate provocation, and be such that would cause an ordinary man to act upon the impulse of the moment, engendered by such passion, and without due re- flection and the formation of a determined purpose.* The mov- ing cause of the action of the acctised in any given incident under investigation may be either such anger as above described,° or result ef a former provocation. Franks v. State, 54 Tex. Crim. Rep. 572, 113 S. W. 941, 1908. Passion and anger will not reduce a malicious killing to manslaughter, without the element of such frenzy as to incapacitate for cool reflection and control of actions. Brewer v. State, 160 Ala. 66, 49 So. 336, 1909. —Heat of passion alone not suffi- cient; there must be adequate provo- cation and the killing unpremeditat- ed. Ex parte Bollin, 3 Okla. Crim. Rep. 725, 109 Pac. 288, 1910. “Premeditated design’ and heat of passion cannot exist at the same time with reference to the homicidal act; yet a homicide may be com- mitted in heat of passion from sud- den provocation notwithstanding there may have existed his premedi- tated design to kill, Montgomery v. State, 186 Wis. 119, 18 L.R.A. (N.S.) 339, 116 N. W. 876, 1908. Sudden provocation, reasonably adequate to excite accused’s passion beyond his power of control, renders a homicide voluntary manslaughter. Watkins v. Com. 123 Ky. 817, 97 S. W. 740, 1906. 4[Mich.] People v. Pond, 8 Mich. 150, 1860; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, 1862. [Minn] State v. Hoyt, 13 Minn. 132, Gil. 125, 1868. [Or.] State v. Hender- son, 24 Or. 100, 32 Pac. 1030, 1893. 5 [Fed.] Com. v. Biron, 4 Dall. 125, 1 L. ed. 769, 1792. [Ala.] Smith v. State, 83 Ala. 26, 3 So. 551, 1887; Holmes v. State, 88 Ala. 26, 16 Am. St. Rep. 17, 7 So. 193, 1889. [Del.] State v. Faino, 1 Marv. (Del.) 492, 41 Atl. 134, 1894; State v. Jones, 2 Penn. (Del.) 573, 46 Atl. 1006, 1900. [D. C.] United States v. Heath, 20 D. ©. 272, 1891. [Ga.] Gann v. State, 30 Ga. 67, 1860. [Ind.] Ex parte Moore, 30 Ind. 197, 1868. [Iowa] State v. Hockett, 70 lowa, 442, 30 N. W. 742, 1886. [Ky.] Kriel v. Com. 5 Bush, 362, 1869; Coffman v. Com. 10 Bush, 495, 1 Am. Crim. Rep. 293, 1874; Stovall v. Com. 4 Ky. L. Rep. 441, 1882; Henson vy. Com. 11 Ky. L. Rep. 314, 11 S. W. 471, 1889; Clem v. Com. 11 Ky. L. Rep. 780, 183 S. W. 102, 1890; Bennyfield v. Com. 15 Ky. L. Rep. 321, 22 8. W. 1020, 1893; Hand- ly v. Com. 15 Ky. L. Rep. 736, 24 S. W. 609, 1894. [Me.] State v. Murphy, 61 Me. 56, 1870. [Mich.] Pond v. People, 8 Mich. 150, 1860; Maher v. People, 10 Mich. 212, 81 Am, Dec. 781, 1862. [Mo.] State v. Holme, 54 Mo. 153, 1878; State v. Ellis, 74 Mo. 207, 1881; State v. Berkley, 92 Mo. 41, 4 S. W. 24, 1887; State v. O’Hara, 92 Mo. 59, 4 8S. W. 422, 1887; State v. Me- Kinzie, 102 Mo. 620, 15 S. W. 149, 1890; State v. Donnelly, 130 Mo. 642, 32 S. W. 1124, 1895; State v. Gassert, 4 Mo. App. 44,1877. [N. Y.] Wilson v. People, 4 Park. Crim. Rep. 619, 1859. [N. C.] State v. Weaver, 3 .N. C. (2 Hayw.) 54, 1798; State v. Barnwell, 80 N. C. 466, 1879. [Pa.] Com. v. Honeyman, Addison (Pa.) 147, 1793; Com. v. Bell, Addison (Pa.) 156, 1 Am. Dec. 298, 1793; Brooks v. Com. 61 Pa. 352, 100 Am. Dec. 645, 1869; Com. v. Ellenger, 1 Brewst. (Pa.) 352, 1867. [Tenn.] Young v. State, 11 Humph. 200, 1850; Haile v. State, 1 Swan, 248, 1851; Quarles v. State, 1 Sneed, 407, 1853; Seals v. State, 3 Baxt. 459, 1874; Nelson v. State, 6 Baxt. 418, 1873. [Tex.] Hinton v. State, 24 Tex. 454, 1859; Boyett v. State, 2 Tex. App. 93, 1877; Cochran v. State, 28 Tex. App. 422, 13 S. W. 651, 8 Am. Crim. Rep. 496, 1890. [W. Va.] State v. Dickey, 48 W. Va. 325, 37 S. E. 695, 15 Am. Crim, Rep. 485, 1900. 605 fear,® CRIMINAL LAW. [§ 425 or terror” of such a character or degree as to render the accused incapable of cool reflection. Absence of design to effect death or grievous bodily harm,® the homicide is voluntary manslaughter, and not murder, al- though the act was unlawful and malicious. Adultery of wife will not, of itself, reduce her homicide to voluntary manslaughter, in the absence of sudden heat of un- 6 Allison v. State, 74 Ark. 86 S. W. 409, 1904; Williams v. State, 107 Ga. 721, 33 S. W. 648, 1899; Pierce v. State, 182 Pa. 27, 63 S. E. 792, 1909. Fear of great danger must be founded upon facts sufficient to war- rant belief in such danger. Allison v. State, 74 Ark. 444, 86 S. W. 409, 1904. Circumstances must be sufficient to excite fears of great bodily harm or of bodily harm such as might reasonably cause death. Williams v. State, 107 Ga. 721, 33 S. W. 648, 1899, Circumstances not being sufficient to excite the fears of a reasonable person. Price v. State, 132 Ga. 27, 63 S. W. 729, 1909. 7[D. C.J] United States v. Heath, 20 D. C. 272, 1891. [Ga.] Croom v. State, 85 Ga. 718, 21 Am. St. Rep. 179, 11 S. E. 1035, 1890. [Iowa] State v. Sterrett, 80 Iowa, 609, 45 N. W. 401, 1890. [Mo.] State v. Garrison, 147 Mo. 548, 49 S. W. 508, 1898. [N. C.] State v. Will, 18 N. C. (1 Dev. & B. L.) 121, 1834. [Tex.] Boyett v. State, 2 Tex. App. 93, 1877; Meuly v. State, 26 Tex. App. 274, 8 Am. St. Rep. 477, 9 S. W. 563, 1888; Bracken v. State, 29 Tex. App. 362, 16 S. W. 192, 1891, 8[Ark.] Rosemond v. State, 86 Ark. 160, 110 8S. W. 229, 1908. [Ky.] Lewis v. Com. 140 Ky. 652, 131 S. W. 517, 1910; Ewing v. Com. 129 Ky. 237, 111 8. W. 352, 1908. [Fla.] Gee v. State, 61 Fla. 22, 54 So. 458, 1911. [N. C.] State v. Lance, 149 N. C. 551, 63 S. E. 198, 1908. [Okla.] Tyner v. United States, 2 Okla. Crim. Rep. 689, 103 Pac. 1057, 1909. [Tex.] Betts v. State, 60 Tex. Crim. Rep. 631, 133 S. W. 251, 1911. [Wis.] Anderson v. State, 133 Wis. 601, 114 N. W. 112, 1907. 444, See also cases 26 Century Dig. col. 99, §§ 57, 58; 10 Decen. Dig. p- 509, §§ 36, 37. Intent to inflict chastisement mere- ly, but death resulting from some peculiarity in or defect of the con- stitution of deceased, or from other unexpected incident, the homicide will be voluntary manslaughter. Rosemond v. State, 86 Ark. 160, 110 S. W. 229, 1908. —Parent whipping child in cruel manner with an instrument not likely to produce death, there being no intention to kill, death resulting is voluntary manslaughter. Betts v. State, 60 Tex. Crim. Rep. 631, 133 S. W. 251, 1911. Recklessly fired shot killing an- other, without any intention to kill or otherwise injure, is voluntary manslaughter. State v. Lance, 149 N. C. 551, 68 8. E. 198, 1908. 9Wellar v. People, 30 Mich. 16, 1 Am. Crim. Rep. 276, 1874. See Reg. v. Franklin, 15 Cox, C. C. 163, 5 Am. Crim. Rep. 377. 10As to adultery of husband or . Wife as adequate provocation for homicide. See: [Ala.] Logan v. State, 155 Ala. 85, 46 So. 480, 1908. [Colo.] Jones v. People, 23 Colo. 276, 47 Pac. 275, 1896. [Conn.] State v. Yanz, 74 Conn. 177, 54 L.R.A. 780, 92 Am. St. Rep. 205, 50 Atl. 37, 1901. [Del.] State v. Powell, 5 Penn. (Del.) 24, 61 Atl. 966, 1904. [Ga.] Rogers v. State, 128 Ga. 67, 10 L.R.A.(N.S.) 999, 119 Am. St. Rep. 364, 57 S. E. 227, 1907; Jackson v. State, 185 Ga. 684, 70 S. EB. 245, 1911. [Ky.] McCarty v. Com. 114 Ky. 621, 71 S. W. 656, 1903; Bugg v. Com. 18 Ky. L. Rep. 844, 38 S. W. 684, 1897. [La.] State v. Senegal, 107 La. 452, 81 So. 867, 1902. [Miss.] Rowland v. State, 83 Miss. 483, 35 So. 826, 1 § 425) HOMICIDE. 609 controllable passion; but it is held by some of the cases that the adultery of the deceased with the wife of the accused is a cir- cumstance of provocation and justification which will reduce the homicide to voluntary manslaughter.” Assault upon accused,” actual or attempted, by the person killed, an attempt to commit serious personal injury, or equiva- lent circumstances, necessary to reduce a homicide to voluntary manslaughter.” A slight assault does not justify killing with a deadly weapon.* But neither assault, nor an attempt to com- mit an assault, is necessary where the evidence shows that the circumstances were such as to justify the excitement of passion to the same extent that an actual assault would have done.” Serious and highly provoking injury, sufficient to excite an irritable passion in a reasonable person, or an attempt to kill, A. & E. Ann, Cas. 135, 1904. [S. C.] v. Cephus, 6 Penn. (Del.) 160, 67 State v. Chiles, 58 S, C. 47, 36 S. E. 496, 1900. [Tex.] Hardcastle v. State, 36 Tex. Crim. Rep. 555, 38 S. W. 186, 1896; Canister v. State, 46 Tex. Crim. Rep. 221, 79 S. W. 24, 1904; Finch v. State, — Tex. Crim. Rep. —, 70 S. W. 207, 1902; Scott v. State, — Tex. Crim. Rep. —, 81 S. W. 47, 1904; Orange v. State, 47 Tex. Crim. Rep. 337, 83 S. W. 385, 1904; Young v. State, 54 Tex. Crim. Rep. 417, 113 8S. W. 276, 1908. See cases 26 Century Dig. col. 124, § 71; also notes in 92 Am, St. Rep. 218, and 6 L.R.A. 424. 11 Rogers v. State, 128 Ga. 67, 10 L.R.A.(N.S.) 999, 119 Am. St. Rep. 364, 57 S. E. 227, 1907. Killing mistress or paramour upon finding her in the embraces of an- other man is murder. Cyrus v. State, 102 Ga. 616, 29 S. E. 917, 1897. Adultery with wife. Logan v. State, 155 Ala. 85, 46 So. 480, 1908; Young v. State, 54 Tex. Crim. Rep. 417, 113 S. W. 276, 1908. See exhaustive note in 92 Am. St. Rep. 214-220. 22As to assault or other injury to the person, as sufficient provoca- tion and justification for a homicide, see: [Ark.] Clardy v. State, 96 Ark. 52, 181 S. W. 46, 1910. [Del.] State Crim. L. Vol. I.—39. Atl. 150, 1906; State v. Borrelli, — Del. —, 76 Atl. 605, 1910; State v. Wiggins, 7 Penn. (Del.) 127, 76 Atl. 632, 1908; State v. Russo, — Del. —, 77 Atl. 748, 1910. [Ga.] Wall v. State, 126 Ga. 549, 55 S. E. 484, 1906. [Tex.] Brown v. State, 54 Tex. Crim. Rep. 121, 112 S. W. 80, 1908. See for other cases, 26 Century Dig. col. 117, § 68; 10 Decen. Dig. p. 513, § 44. Assault of accused may form the basis for reducing homicide to man- slaughter. Brown v. State, 54 Tex. Crim. Rep. 121, 112 S. W. 80, 1908. Assault, slight, does not excuse homicide with a deadly weapon. State v. Cephus, 6 Penn. (Del.) 160, 67 Atl. 150, 1906; state v. Borrelli, — Del. —, 76 Atl. 605, 1910; State v. Wiggins, 7 Penn. (Del.) 127, 76 Atl. 632, 1908. 18 Wall v. State, 126 Ga. 549, 55 S. E. 484, 1906; Harris v. State, 2 Ga. App. 487, 58 S. E. 680, 1907. 14State v. Cephus, 6 Penn. (Del.) 160, 67 Atl. 150, 1906. ; As to assault or other injury to the person constituting adequate cause, see 26 Century Dig. col. 138, § 78; 10 Decen. Dig. p. 519, § 54; Am. Dig. title Homicide, § 54. 15 Rumsey v. State, 126 Ga. 419, 55 S. E. 167, 1906. 610 CRIMINAL LAW. [§ 425 or to commit a serious personal injury, is always necessary to reduce a homicide to voluntary manslaughter.’ Belief serious bodily injury about to be inflicted upon the. ac- cused by the person killed, which is honestly entertained, but which was held upon insufficient grounds for such a belief, will not reduce a homicide to voluntary manslaughter.” Thus, drawing a knife at the distance of a few paces, with a motion or movement to approach, does not put a man in such peril of life cr limb as to warrant him in shooting his antagonist.”* Cooling time intervening, giving the reason an opportunity and time to resume its throne, a homicide will cease to be man- slaughter and become murder.” Cooling time is always a ques- tion of reasonable time, and depends upon all the circumstances of the particular case. Where the law has not defined, and cannot, without gross injustice, define, the precise time which shall be deemed reasonable, the question is one for the jury; but where the law has defined what shall be a reasonable time, the question of such reasonable time—the facts being found by the jury—is one of law for the court. Where the question of reasonable time is one of fact for the jury, the court cannot take it from the jury by assuming to decide it as a question of law, without confounding the respective provinces of court and jury.”* 16 People v. Bissett, 246 Ill. 516, 92 N. E. 949, 1910. Crim. Rep. 486, 113 S. W. 754, 1908; Jay v. State, 56 Tex. Crim. Rep. 111, 17State v. Clay, 201 Mo. 679, 100 S. W. 439, 1907. 18 Casey v. State, 54 Tex. Crim. Rep. 584, 113 S. W. 534, 1908. 19 As to cooling time, generally, and what time is sufficient, see: [Ala.] Brewer v. State, 160 Ala. 66, 49 So. 336, 1909. [Cal.] People v. Fossetti, 7 Cal. App. 629, 95 Pac. 384, 1908. [Colo.] Wickham v. Peo- ple, 41 Colo. 345, 93 Pac. 478, 1908. [Minn.] State v. Towers, 106 Minn. 105, 118 N. W. 361, 1908. [N. D.] State v. Hazlet, 16 N. D. 426, 113 N. W. 374, 1907. [Okla.] Re Fraley, 3 Okla. Crim. Rep. 719, 109 Pac. 295, 1910. [Pa.] Com. v. Paese, 220 Pa, o/1, 17 L.R.A.(N.S.) 793, 123 Am. St. Rep. 699, 69 Atl. 891, 13 A. & E. Ann. Cas. 1081, 1908. [Tex.] Holcomb v. State, 54 Tex. 120 S. W. 449, 1909. 20See cases, 26 Century Dig. col. 105, §§ 62-64; 10 Decen. Dig. p. 511, § 40. 21 Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, 1862; Rex v. Hay- ward, 6 Car. & P. 157, 1833; Rex v. Lynch, 5 Car. & P. 824, 1832. As to “cooling time,” see cases cited 26 Century Dig. col. 105, §§ 62, 64; Decen. Dig. p. 511, § 40; Am. Dig. title “Homicide,” § 40. —No length of time is necessary for. People v. Fossetti, 7 Cal. App. 629, 95 Pac. 384, 1908; Wickham v. People, 41 Colo. 345, 93 Pac. 478, 1908. Is to be measured from the stand- point of defendant, in the light of all the surrounding circumstances. § 425] HOMICIDE. 611 Deadly weapon ** used by the accused, the provocation must State v. Hazlet, 16 N. D. 426, 113 N. W. 374, 1907. Interval between assault or provo- cation, and the killing, sufficient for the reason to be heard, the killing will be attributable to malice, and will be murder. [Ala.] Brewer v. State, 160 Ala. 66, 49 So. 336, 1909. [1] People v. Bissett, 246 Ill. 516, 92 N. E. 949, 1910. [Okla.] Re Fraley, 3 Okla. Crim. Rep. 719, 109 Pac. 295, 1910. Thus where defendant, struck in a quarrel, left the room, procured a pistol, returned, and shot deceased, he was held guilty of murder. Peo- ple v. Fossetti, 7 Cal. App. 629, 95 Pac. 384, 1908. See State v. Towers, 106 Minn. 105, 118 N. W. 361, 1908, in which case the accused, being assaulted, walkea three and one half blocks, procured a shot gun, re- turned, and killed his assailant; it was held not error for court to sub- mit to jury the question of man- slaughter. —“Cannot be considered when the evidence shows homicide was pre- meditated.” Wickham v. People, 41 Colo. 345, 93 Pac. 478, 1908. —Presupposes an outrage upon ac- cused a sufficient time before the homicide to permit of reflection. [Cal.] People v. Fossetti, 7 Cal. App. 629, 95 Pac. 384, 1908 (defendant, struck in a quarrel, left the room, procured a pistol, returned, and shot deceased, he was held guilty of mur- der). [Minn.] State v. Towers, 106 Minn. 105, 118 N. W. 361, 1908 (ac- cused, being assaulted, walked three and one half blocks, procured a shot gun, returned, and killed his assail- ant; it was held the court committed no error in submitting to the jury the question of manslaughter). [Pa.] Com. v. Paese, 220 Pa. 371, 17 L.R.A. (N.S.) 793, 123 Am. St. Rep. 699, 69 Atl. 891, 18 A. & E. Ann. Cas. 1081, 1908. [Tex.] Jay v. State, 56 Tex. Crim. Rep. 111, 120 8S. W. 449, 1909. 22. A deadly weapon is one likely to produce death or great bodily in- jury. See: [Cal.] People v. Fuqua, 68 Cal. 245, 1881; People v. Frank- lin, 70 Cal. 641, 11 Pac. 797, 1886; People v. Leyba, 74 Cal. 407, 16 Pac. 200, 1887; People v. Valliere, 123 Cal. 576, 56 Pac. 433, 1899; People vy. Perales, 141 Cal. 581, 75 Pac. 170, 1904. [Fla.] Blige v. State, 20 Fla. 742, 51 Am. Rep. 628, 1884. [Or.] State v. Godfrey, 17 Or. 300, 11 Am. St. Rep. 830, 20 Pac. 625, 1889. [Tex.] Wilson v. State, 15 Tex. App. 150, 1883. Strictly speaking, a deadly weapon is anything with which death may easily and readily be produced in the manner in which the instrument is used. [Fed.] Acers v. United States, 164 U. S. 388, 41 L. ed. 481, 17 Sup. Ct. Rep. 91, 1896. [Ala.] Sylvester v. State, 72 Ala. 201, 1882. [N. C.] State v. West, 51 N. C. (6 Jones, L.) 506, 1859. Instruments adjudged dangerous weapons by the various courts are as follows: Ax is a deadly weapon. People v. Guidice, 73 Cal. 226, 15 Pac. 44, 1887; Dollarhide v. United States, Morris, (Iowa) 233, 39 Am. Dec. 460, 1843; State v. Ostrander, 18 Iowa, 456, 1865. ——Black-jack fence pole may be a deadly weapon, but is not neces- sarily such. Wilson v. State, 15 Tex. App. 150, 155, 1883. —Bottle may be a deadly weapon. Wilson v. State, 33 Ga. 207, 1862. —Bowie knife is. Buchanan v. State, 24 Ga. 286, 1858. —Brass knuckles, are. Wilks v. State, 3 Tex. App. 34, 1877; Ballard v. State, — Tex. App. —, 13 S. W. 674, 1890. —Brickbat weighing about 5 pounds is. People v. Fahey, 64 Cal. 342, 30 Pac. 1030, 1883. —Chisel is a deadly weapon. Com. v. Branham, 8 Bush, 387, 1871. —Club or stick which would knock a person down might well be as- sumed to be a deadly weapon. Peo- ple v. Arnold, 116 Cal. 682, 48 Pac. 803, 1897. —Fist is not a deadly weapon; and a homicide produced by a stroke of the fist is voluntary manslaugh- ter. People v. Munn, 65 Cal. 211, 612 CRIMINAL LAW. [§ 425 have been very great in order to reduce the crime in a homicide 3 Pac. 650, 6 Am, Crim. Rep. 431, 1884. —Gun or pistol, loaded, is a dan- gerous weapon. ([Cal.] People v. Jacobs, 29 Cal. 579, 1866; People v. Congleton, 44 Cal. 92, 1872. [Ind.] Agee v. State, 64 Ind. 340, 3 Am. Crim. Rep. 11, 1878. [Mass.] Com. v. White, 110 Mass. 407, 1872; Com. v. Fenno, 125 Mass. 387, 1878. [Minn.] State v. Shenton, 22 Minn. 311, 1875. [Mo.] State v. Painter, 67 Mo. 84, 1877. [N. C.] State v. Huntly, 25 N. C. (3 Tred. L.) 418, 40 Am. Dec. 416, 1843. [Tex.] Shadle v. State, 34 Tex. 572, 1871. Unloaded, is not necessarily a dangerous weapon. People v. Sylva, 148 Cal. 62, 76 Pac. 814, 1904. But if used as a bludgeon it will be. Com. v. Fenno, 125 Mass. 387, 1878; State v. Franklin, 36 Tex. 155, 1871; Jenkins v. State, 28 Tex. App. 86, 12 S. W. 411, 1889. —Gunpowder is a deadly weapon where exploded with evil intent. People v. Pape, 66 Cal. 366, 5 Pac. 621, 1885. —Hatchet may be. State v. Se- bastian, 81 Mo. 514, 1884. —Heavy wooden stick is not, ex vi termini, a deadly weapon, nor a, deadly instrument. People v. Per- ales, 141 Cal. 581, 75 Pac. 170, 1904. —Horseshoe may be. Reg. v. Shea, 8 N. B. 129, 1855. —Iron bolt, rod, or pin may be, owing to manner of its use. State v. Lowry, 33 La. Ann. 1224, 1880. —Iron weight of 4 pounds may be. Milner v. State, 30 Ga. 137, 1860. —Knife is,—particularly where the blade is 3 inches or more in length. [Ala.] Sylvester v. State, 71 Ala. 17, 1881; Tesney v. State, 77 Ala. 33, 1884. [Cal.] People v. Lightner, 49 Cal. 226, 1 Am. Crim. Rep. 539, 1874; People v. Franklin, 70 Cal. 641, 11 Pac. 797, 1886; People v. Leyba, 74 Cal. 4u/, 16 Pac. 200, 1887; People v. Nihell, 144 Cal. 200, 77 Pac. 916, 1904. [Minn.] State v. Henn, 39 Minn. 476, 40 N. W. 572, 1888. [Nev.] State v. Collyer, 17 Nev. 275, 30 Pac, 891, 1883. [N. M.] State v. Armijo, 7 N. M. 571, 37 Pac. 1117, 1894. [Tex.] Ferguson v. State, 6 Tex. App. 504, 1879; Briggs v. State, 6 Tex. App. 144, 1879. —Life protector may be a danger- ous weapon. State v. Mix, 8 Rob. (La.) 549, 1844. —Pick handle is a dangerous weapon. People v. Fuqua, 58 Cal. 245, 1881; State v. Smith, 72 Ga. 114, 1883. —Pin—Dressing pin or hairpin may become a deadly weapon. State v. Norwood, 115 N. C. 789, 44 Am. St. Rep. 498, 20 S. E. 712, 1894. —Pistol is a deadly weapon. Peo- ple v. McFadden, 65 Cal. 445, 4 Pac. 421, 1884. Especially so when loaded. Ew- ing v. Com. 129 Ky. 287, 111 S. W. 352, 1908. See “Gun or pistol,” this note. —Pitchfork is a deadly weapon. State v. Beverlin, 30 Kan. 611, 2 Pac. 630, 1883; McReynolds v. State, 4 Tex. App. 327, 1878. —Pitchfolk handle, held not to be without statutory provisions. Fil- kins v. People, 69 N. Y. 101, 25 Am. Rep. 143, 1877; People v. Casey, 72 N. Y. 392, 1878; People v. Hickey, 11 Hun, 631, 1877. —Shovel may be. State v. Beadon, 17 S. C. 55, 1881. —Shovel handle may be. Smith v. State, 73 Ga. 31, 1884; People v. Comstock, 49 Mich. 330, 18 N. W. 617, 1882. —Spring gun is a dangerous weapon. Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1, 1877. —Stick may be, but is not neces- sarily such. People v. Comstock, 49 Mich. 330, 13 N. W. 617, 1882. See title “Club,” this note. —Stocking filled with salt, hard- ened with water, is a deadly weapon. See People v. Valliere, 123 Cal. 576, 56 Pac. 433, 1899. —Stone or iron weight may be. [Fla.] Blige v. State, 20 Fla. 742, 51 Am. Rep. 628, 1884. [Ga.] Cole- man v. State, 28 Ga. 78, 1859; Brown v. State, 58 Ga. 212, 1877. [Minn.] State v. Dineen, 10 Minn. § 425] HOMICIDE. 613 to that of voluntary manslaughter. Mere use of deadly weapon ™ does not of itself raise a presumption of malice on the part of the accused; but where such a weapon is used in a manner likely to, and does, cause death, the law presumes malice from the act.” Fear, we have already seen,” is an element reducing a hom- icide to voluntary manslaughter, but, in order to accomplish this, the fear must be such as a reasonable man would enter- tain under circumstances of the homicide.2” Mere fear, appre- hension, or belief, though honestly entertained, when not jus- tifiable, will not excuse or mitigate a killing where the danger was not urgent.” 407, Gil. 325, 1865. [Wis.] Regan v. State, 46 Wis. 256, 50 N. W. 287, 1879. —Stone 3 inches wide, 9 inches long, and 13 or 2 inches thick, may become a deadly weapon. cers v. United States, 164 U. S. 388, 41 L. ed. 481, 17 Sup. Ct. Rep. 91, 1896. 28 State v. Cephus, 6 Penn. (Del.) 160, 67 Atl. 150, 1906; State v. Adams, 6 Penn. (Del.) 178, 65 Atl. 510, 1906; Beauregard v. State, 146 Wis. 280, 131 N. W. 347, 1911. Assault with deadly weapon with- out intent to kill, death resulting, accused is guilty of voluntary man- slaughter. Gee v. State, — Fla. —, 54 So. 458, 1911. As to nature of instrument or weapon used as affecting degree of provocation and of crime committed, see 26 Century Dig. col. 148, § 83; 10 Decen. Dig. p. 520, § 59; Am. Dig. title “Homicide,” § 59. 24Injury inflicted with instrument not likely to cause death, killing is voluntary manslaughter or murder according to the facts in the case. Betts v. State, 60 Tex. Crim. Rep. 631, 133 S. W. 251, 1911. Cause death of child by whipping in cruel manner, with instrument not likely to produce death, there being no intention to kill, parent is guilty of voluntary manslaughter. Betts v. State, 60 Tex. Crim. Rep. 631, 133.8. W. 251, 1911. 25 [Ind.] Bridgewater v. State, 153 Ind, 560, 55 N. E. 737, 18 Am. Crim. Rep. 270, 1899. See Clem v. State, 31 Ind. 480, 1869; Murphy v. State, 31 Ind. 511, 1869; Kunkle v. State, 32 Ind. 220, 1869; McDermott v. State, 89 Ind. 187, 1883; Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218, 5 N. E. 203, 1885; Newport v. State, 140 Ind. 299, 39 N. E, 926, 1895. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [N. Y.] People v. Schryver, 42 N. Y. 1, 1 Am. Rep. 480, 1870. [Pa.] Com. v. Drum, 58 Pa. 9, 1868. [Va.] Howell v. Com. 26 Gratt. 995, 1875; Mitchell v. Com. 33 Gratt. 872, 1880. 26 See supra, footnote 6, this sec- tion. 27 Pierce v. State, 132 Ga. 27, 63 S. E. 792, 1909. 28 Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62, 1859. Kendrick v. State, 55 Miss. 446, 1877. Danger must be present, active and imminent to constitute a rea- sonable belief of danger. Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62, 1859; Evans v. State, 44 Miss. 762, 1870; Jefferson v. State, 52 Miss. 771, 1876. Fears of a coward will not justify a homicide. Teal v. State, 22 Ga. 75, 68 Am. Dec. 482, 1857. Well-grounded belief of danger may justify a plea of self-defense and reduce the homicide to volun- tary manslaughter. [Cal.] People v. Gonzales, 71 Cal. 569, 12 Pac. 783, 1886. [IU] Campbell v. People, 16 Ill. 17, 61 Am. Dec. 49, 1854; Hop- kinson v. People, 18 Ill. 266, 1857; Schnier v. People, 23 Ill. 28, 1859; CRIMINAL LAW. [§ 425 614 Heat of passion, alone, will not reduce a homicide to vol- untary manslaughter; to do this there must have been an ade- quate provocation, and the act resulting in the death of the party must have been the unpremeditated result of the passion suddenly aroused to an uncontrollable degree.®*° Homicide in defense of habitation or property against a tres- passer seeking to commit a felony is justifiable.** A person attacked on his own premises is not required to retreat; but a man is not justified in killing another for an offense which is not a serious or irreparable injury to his property, such as tear- ing down and carrying away a fence belonging to the accused ; * but if the homicide is committed in the heat of ungovernable Maher v. People, 24 Ill. 241, 1859; Adams v. People 47 Ill 379 1868; Davison v. People, 90 Ill. 231, 1878. [Minn.] State v. Shippey, 10 Minn. 2238, Gil. 178, 88 Am. Dec. 70, 1863. 29 As to sudden heat of passion and its effect of reducing a homicide to manslaughter, see: [Ala.] Mc- Bryde v. State, 156 Ala. 44, 47 So. 302, 1908. [Ky.] Watkins v. Com. 123 Ky. 817, 97 S. W. 740, 1906; Hocker v. Com. 33 Ky. L. Rep. 944, 111 8. W. 676, 1908; Combs v. Com. 33 Ky. L. Rep. 1058, 112 S. W. 658, 1908. [Mich.] People v. Poole, 159 Mich. 350, 134 Am. St. Rep. 722, 123 N. W. 1093, 1909. [N. C.] State v. Baldwin, 152 N. C. 822, 68 S. E. 148, 1910. [Okla.] Re Bollin, 3 Okla. Crim. Rep. 725, 109 Pac. 288, 1910. [Tex.] Winn v. State, 54 Tex. Crim. Rep. 538, 113 S. W. 918, 1908; Franks v. State, 54 Tex. Crim. Rep. 572, 113 S. W. 941, 1908; Casey v. State, 54 Tex. Crim. Rep. 584, 113 S. W. 534, 1908; Gillespie v. State, 53 Tex. Crim. Rep. 167, 109 S. W. 158, 1908. [Wis.] Montgomery v. State, 136 Wis. 119, 18 L.R.A.(N.S.) 339, 116 N. W. 876, 1908. As to heat of passion which will mitigate or reduce the degree of a homicide, see exhaustive monograph- ic note in 5 L.R.A.(N.S.) 809-829, 30Re Bollin, 3 Okla Crim. Rep. 725, 109 Pac. 288, 1910. As to homicide in heat of passion see note in 71 Am. St. Rep. 601. Heat of passion excludes premedi- tation. Montgomery v. State, 136 Wis. 119, 18 L.R.A.(N.S.) 339, 116 N. W. 876, 1908. As to hot blood or sudden heat of passion in homicide cases, see 26 Century Dig. col. 100, §§ 59-64; Decen. Dig. p. 510, § 38; Am. Dig. title “Homicide,” § 38. 81 Powell v. State, 101 Ga. 9, 65 Am. St. Rep. 277, 29 S. E. 309, 1897; State v. Matthews, 148 Mo. 185, 71 Am. St. Rep. 594, 49 S. W. 1085, 11 Am. Crim. Rep. 681, 1899. See also note in 71 Am. St. Rep. 601, 82 [Ala.] Karr v. State, 100 Ala. 4, 46 Am. St. Rep. 17, 14 So. 851, 1893. [Cal.] People v. Lewis, 117 Cal. 186, 59 Am. St. Rep. 167, 48 Pac. 1088, 1897. [Wash.] State v. Cushing, 14 Wash. 527, 53 Am. Sb. Rep. 883, 45 Pac. 145, 1896. Compare: Lee v. State, 92 Ala. 15, 25 Am. St. Rep. 17, 9 So. 407, 1891. 83 As to trespass or other injury to property being provocation, see: [Ga.] Sellers v. State, 99 Ga. 689, 59 Am. St. Rep. 253, 26 S. E. 484, 1896. [Mo.] State v. Taylor, 143 Mo. 150, 44 8. W. 785, 1898. [Tex.] Martin v. State, 42 Tex. Crim. Rep. 144, 58 S. W. 112, 1900; Ward v. State, 59 Tex. Crim. Rep. 62, 126 S. W. 1145, 1910. [Wis.] Fertig v. State, 100 Wis. 301, 75 N. W. 960, 1898. See also cases cited in 26 Century Dig. col. 126, § 72. § 425] HOMICIDE, 615 passion, engendered by the removal of the fence, the crime will be reduced to voluntary manslaughter.** Insulting or threatening language, looks, or gestures*® cannot constitute an adequate cause of provocation sufficient to reduce a homicide to voluntary manslaughter.*® Mere insulting con- duct is not usually regarded as adequate provocation justifying a killing, and to mitigate a charge of homicide it must be shown that the killing happened immediately upon the giving of the 84 State v. Matthews, 148 Mo. 185, 71 Am. St. Rep. 594, 49 S. W. 1085, 11 Am. Crim. Rep. 681, 1899; Sims v. State, 38 Tex. Crim. Rep. 637, 44 8. W. 522, 11 Am. Crim. Rep. 689, 1898. See State v. Shippey, 10 Minn. 223, 88 Am. Dec. 70, Gil. 178, 1865. Killing with deadly weapon mere trespasser upon property is murder. [Ala.] Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282, 1853; Harrison v. State, 24 Ala. 67, 60 Am. Dec. 450, 1854; Noles v. State, 26 Ala. 31, 62 Am. Dec. 711, 1855. [Ga.] Monroe v. State, 5 Ga. 85, 1848. [Ind.] Beauehamp v. State, 6 Blackf. 299, 1843. [Mass.] Com. v. Drew, 4 Mass. 396, 1808. [Minn.] State v. Shippey, 10 Minn. 223, Gil. 178, 88 Am. Dec. 70, 1865. [Miss.] McDan- iel v. State, 8 Smedes & M. 401, 47 Am. Dee. 93, 1847. [Mo.] Roberts v. State, 14 Mo. 138, 55 Am. Dec. 97, 1851. [N. C.] State v. Morgan, 25 N. C. (3 Ired. L.) 186, 38 Am. Dec. 714, 1842. Compare: Tiffany v. Com. 121 Pa. 165, 6 Am. St. Rep. 775, 15 Atl. 462, 1888. 85 As to threats or insulting lan- guage or conduct as_ provocation, see: [Ark.] Wheatley v. State, 93 Ark. 409, 125 S. W. 414, 1910; Clar- dy v. State, 96 Ark. 52, 131 S. W. 46, 1910. [Del.] State v. Underhill, 6 Penn. (Del.) 491, 69 Atl. 880, 1908; State v. Moore, — Del. —, 74 Atl. 1112, 1910; State v. Borrelli, —- Del. —, 76 Atl. 605, 1910. [Fla.] Pelt v. State, 58 Fla. 90, 50 So. 832, 1909. [Ga.] Dotson v. State, 129 Ga. 727, 59 S. E. 774, 1907; Smarrs v. State, 131 Ga. 21, 61 S. E. 914, 1908; Brantley v. State, 5 Ga. App. 458, 63 S. E. 519, 1909. [Mo.] State v. Edwards, 203 Mo. 528, 102 8. W. 520, 1907; State v. Kennedy, 207 Mo. 528, 106 S. W. 57, 1907; State v. Goldsby, 215 Mo. 48, 114 S. W. 500, 1908; State v. Heath, 221 Mo. 565, 121 8. W. 149, 1910; State v. Hanson, 231 Mo. 14, 132 S. W. 425, 1910; State v. Sharp, 233 Mo. 269, 135 S. W. 488, 1911. [Okla.] Re Bollin, 3 Okla. Crim. Rep. 725, 109 Pac. 288, 1910. [S. C.J] State v. Bethune, 86 S. C. 143, 67 S. E. 466, 1910. [Tex.] McMeans v. State, 55 Tex. Crim. Rep. 69, 114 S. W. 837, 1908; Giles v. State, 60 Tex. Crim. Rep. 436, 182 S. W. 359, 1910; Hardeman v. State, — Tex. Crim. Rep. —, 133 S. W. 1056, 1911. [W. Va.] State v. Crawford, 66 W. Va. 114, 66 S. E. 110, 1909. 86 [Ark.] Whatley v. State, 93 Ark. 409, 125 S. W. 414, 1910. [Del.] State v. Underhill, 6 Penn. (Del.) 491, 69 Atl. 880, 1908; State v. Moore, — Del. —, 74 Atl. 1112, 1910; State v. Borrelli, — Del. —, 76 Atl. 605, 1910. [Fla.] Pelt v. State, 58 Fla. 90, 50 So. 832, 1909. [Ga.] Bird v. State, 128 Ga. 253, 57 8. E. 320, 1907; Dotson v. State, 129 Ga. 727, 59 8S. HE. 774, 1907; Smarrs v. State, 131 Ga. 21, 61 S. E. 914, 1908; Brantley v. State, 5 Ga. App. 458, 63 S. EH. 519, 1909. [Mo.] State v. Edwards, 203 Mo. 528, 102 S. W. 520, 1907; State v. Kennedy, 207 Mo. 528, 106 S. W. 57, 1907; State v. Goldsby, 215 Mo. 48, 114 S. W. 500, 1908; State v. Heath, 221 Mo. 565, 121 S. W. 149, 1909. [Okla.] Pe Bollin, 83 Okla. Crim. Rep. 725, 109 Pac. 288, 1910. [S. C.] State v. Bethune, 86 8. ©. 148, 67 S. E. 466, 1910. [W. Va.] State v. Craw- ford, 66 W. Va. 114, 66 S. E. 110, 1909. 616 CRIMINAL LAW. [§ 425 insult or upon the first meeting of the accused with the deceased after being informed of his conduct.*” Insult to, defamation of, or injury of another,** or threats there- of, are not regarded in law as sufficient provocation to re- duce a homicide committed because thereof to voluntary man- slaughter.*® If the other person thus injured or defamed is a relative, it is held in some of the cases that the provocation is sufficient to reduce the killing to voluntary manslaughter.” Intentional homicide is a voluntary manslaughter in those cases where the act is not malicious and is not justifiable.* 87 Words, alone, however insult- ing, will not reduce a homicide to manslaughter. State v. Goldsby, 215 Mo. 48, 114 S. W. 500, 1908. As to threatening and insulting language and conduct, see further eases, 26 Century Dig. col. 120, § 69; 10 Decen. Dig. p. 515, § 45; Am. Dig. title “Homicide,” § 45. insulting conduct, to mitigate a charge of homicide, it must be shown that the killing happened im- mediately upon the giving of the in- sult, or upon the first meeting of accused with deceased after being informed of his conduct. Holcomb v. State, 54 Tex. Crim. Rep. 486, 113 S. W. 754, 1908. 38 As to insult to, defamation of, or injury to, another as provocation, see [Ga.] Barney v. State, 5 Ga. App. 301, 63 S. E. 28, 1908; Ren- froe v. State, 8 Ga. App. 676, 70 8S. E. 70, 1911. [Tex.] Hill v. State, 52 Tex. Crim. Rep. 241, 106 S. W. 145, 1907; Stewart v. State, 52 Tex. Crim. Rep. 273, 106 S. W. 685, 1908; Redman v. State, 52 Tex. Crim. Rep. 591, 108 S. W. 365, 1908; Gillespie v. State, 53 Tex. Crim. Rep. 167, 109 S. W. 158, 1908; Holcomb v. State, 54 Tex. Crim. Rep. 486, 113 S. W. 754, 1908; Gray v. State, 55 Tex. Crim. Rep. 90, 22 L.R.A.(N.S.) 518, 114 8S. W. 635, 1908; Hobbs v. State, 55 Tex. Crim. Rep. 299, 117 S. W. 811, 199; Buckner v. State, 55 Tex. Crim. Rep. 511, 117 S. W. 802, 1909; Akin v. State, 56 Tex, Crim. Rep. 324, 119 S. W. 868, 1909; Cheatham v. State, 57 Tex. Crim. Rep. 442, 125 S. W. 565, 1909. For other cases see 29 Century Dig. col. 128, § 73; 10 Decen. Dig. p. 517, § 49. 39 [Ga.] Barney v. State, 5 Ga. App. 301, 63 S. E. 28, 1908. [Tex.] Hill v. State, 52 Tex. Crim. Rep. 241, 106 S. W. 145, 1907; Stewart v. State, 52 Tex. Crim. Rep. 273, 106 S. W. 685, 1907; Holcomb v. State, 54 Tex. Crim. Rep. 486,113 S. W. 754, 1908 (insult to wife may reduce kill- ing to voluntary manslaughter) ; Gray v. State, 55 Tex. Crim. Rep. 90, 22 L.R.A.(N.S.) 513, 114 S. W. 635, 1908 (belief deceased had made im- proper proposal to wife of accused reduces homicide to voluntary man- slaughter); Hobbs v. State, 55 Tex. Crim. Rep. 299, 117 S. W. 811, 1909 (insult to defendant’s wife, held sufficient to reduce homicide to man- slaughter); Akin vy. State, 56 Tex. Crim. Rep. 324, 119 S. W. 863, 1909; Cheatham v. State, 57 Tex. Crim. Rep. 442, 125 S. W. 565, 1909; Wil- son v. State, 60 Tex. Crim. Rep. 1, 129 S. W. 618, 1910. As to defamation as provocation, see 26 Century Dig. col. 124, § 70; 10 Decen. Dig. p. 516, § 46; Am. Dig. title “Homicide,” § 46. 40 Com. v. Pease, 220 Pa. 371, 17 L.R.A.(N.S.) 793, 123 Am. St. Rep. 699, 69 Atl. 891, 13 A. & E. Ann. Cas. 1081, 1908. Slanderous statement against fe- male relative, a provocation reducing homicide to voluntary manslaughter. Redman v. State, 52 Tex. Crim. Rep. 591, 108 S. W. 365, 1908; Gillespie v. State, 53 Tex. Crim. Rep. 167, 109 S. W. 158, 1908. #1 Mixon v. State, 7 Ga. App. 805, 68 S. E. 315, 1910; State v. Bald- § 425] HOMICIDE, 617 Thus, where an intentional killing is under circumstances of provocation, or in mutual combat, the homicide may be reduced from murder to voluntary manslaughter, the circumstances of the act justifying such reduction.“ But where the killing is because of previous ill-will, or because of a fear the deceased would later do harm to the accused, the killing is murder, and not voluntary manslaughter, no matter what state of rage, pas- sion, or fear the accused may have been in at the time the act was done. Malice is not an ingredient of manslaughter.** Malice be- ing present, passion and anger, whatever their extent or degree, will not serve to reduce an unlawful killing to voluntary man- slaughter.” Where the subject is regulated by a statute which does not undertake to define manslaughter, such statute is to be construed with reference to the common law, and the absence of malice must be read into the statute.*® Mutual combat *” will reduce a homicide to voluntary man- win, 152 N. C. 822, 68 S. E. 148, 1910. Intent to kill Tyner v. United States, 2 Okla. Crim. Rep. 689, 103 Pac. 1057, 1909. 42 State v. Goldsby, 215 Mo. 48, 114 S. W. 500, 1908. 43 Arnwine vy. State, 54 Tex. Crim. Rep. 213, 114 S. W. 796, 1908. Intent to kill need not be formed in sudden transport of passion, on adequate cause, in order to reduce a homicide to voluntary manslaugh- ter. If the mind is excited, and not capable of cool reflection, from ade- quate cause, that is sufficient. Kannmacher v. State, 51 Tex. Crim. Rep. 118, 101 S. W. 238, 1907. Intent to kill may exist, and yet a homicide be voluntary manslaugh- ter, where it is without premedita- tion or deliberation. Com. v. Web- ster, 5 Cush, 295, 52 Am. Dec. 711, 1850; People v. Lilley, 43 Mich. 521, 5 N. W. 982, 1880; State v. Curtis, 70 Mo. 594, 1879. Intent to take life being absent, effect of, on the homicide, see 26 Century Dig. col. 99, § 57; 10 Decen. Dig. p. 509, § 36; Am. Dig. title “Homicide,” § 36. is not necessary. 44 Bluitt v. State, 161 Ala. 14, 49 So. 854, 1909; Roquemore v. State, 59 Tex. Crim. Rep. 568, 129 S. W. 1120, 1910. Absence of malice, compatible with an intention to kill. State v. Murray, 83 Kan. 148, 110 Pac. 103, 1910. 45 Brewer v. State, 160 Ala. 66, 49 So. 336, 1909. 46Turner v. State, 160 Ala. 55, 49 So. 304, 1909. 47 As to homicide committed in mutual combat, see [Ark.] Gilmore v. State, 92 Ark, 205, 122 S. W. 493, 1909. [Del.] State v. Adams, 6 Penn. (Del.) 178, 65 Atl. 510, 1906; State v. Morahan, 7 Penn. (Del.) 494, 77 Atl. 488, 1895. [Ga.] Giles v. State, 126 Ga. 549, 55 S. E. 405, 1906; Sapp v. State, 2 Ga. App. 449, 58 S. E. 667, 1907; Lee v. State, 2 Ga. App. 481, 58 S. E. 676, 1907; Johnson v. State, 4 Ga. App. 59, 60 S. E, 813, 1908. [N. C.] State v. Quick, 150 N. C. 820, 64 S. E. 168, 1909. [Okla.] Wood v. State, 3 Okla. Crim. Rep. 553, 107 Pac. 937, 1909. [Tex.] Bice v. State, 55 Crim. Rep. 529, 117 S. W. 163, 1909; 618 CRIMINAL LAW. [§ 425 slaughter in those cases only where it is shown that the deed was perpetrated in a transport of passion, or in the heat of blood, upon an adequate provocation, and that the act was without malice.*® —Killing in fight or sudden affray,*® upon adequate provoca- tion, in heat of blood, or in a transport of passion, constitutes voluntary manslaughter.” Negligently handling loaded gun or pistol,®! causing death, con- stitutes the crime of voluntary manslaughter at common law; © as where a recklessly fired shot results in a homicide, without an intention to kill; ** or pointing a loaded pistol, believing it would not be discharged ; ** or attempting to shoot over the head of another, knowing that thereby the life of such person was endangered, death resulting, the crime is voluntary manslaugh- ter, although the act was simply a reckless one and without malice. Anthony v. State, — Tex. Crim. Rep. —, 136 8. W. 1097, 1911. For earlier cases on the subject, see 26 Century Dig. col. 145, §§ 86, 87; 10 Decen. Dig. p. 521, § 63. 48 State v. Adams, 6 Penn. (Del.) 178, 65 Atl. 510, 1906; Giles v. State, 126 Ga. 549, 55 S. E. 405, 1906. 49 As to homicide in affrays, see [Cal.] People v. Denomme, — Cal. —, 56 Pac. 98, 1899. [Ky.] Rey- nolds v. Com. 26 Ky. L. Rep. 540, 949, 82 8. W. 233, 978, 1904; De- laney v. Com. 18 Ky. L. Rep. 212, 35 S. W. 1037, 1896. [N. Y.] Peo- ple v. Tuhi, 2 Wheeler, C. C. 242, 1820. [Wis.] Hayes v. State, 112 Wis. 304, 87 N. W. 1076, 1901. 50 State v. Roberts, — Del. —, 78 Atl. 305, 1910. Agreement to fight without dead- ly weapons, a resulting homicide is voluntary manslaughter. Anthony v. State, — Tex. Crim. Rep. —, 136 S. W. 1097, 1911. Killing in fight upon provocation is voluntary manslaughter. State v. Morahan, 7 Penn. (Del.) 494, 77 Atl. 488, 1895; State v. Woods, 7 Penn. (Del.) 499, 77 Atl. 490, 1896. 51As to homicide in negligently handling gun, pistol, or other dan- gerous instrument or weapon, see [Ga.] Leonard v. State, 133 Ga. 435, 66 S. E. 251, 1909; State v. Stitt, 146 N. C. 643, 17 L.R.A.(N.6.) 308, 61 S. E. 566, 1908. [Ky.] Hunn v. Com, 143 Ky. 148, 136 8. W. 144, 1911; Ewing v. Com. 129 Ky. 237, 111 S. W. 352, 1908. [Neb.}] Ford v. State, 71 Neb. 246, 115 Am. Bt. Rep. 591, 98 N. W. 807, 1904. [N. C.] State v. Limerick, 146 N. C. 649, 61 S. E. 568, 1908. [S. CJ State v. badgett, 87 S. C. 543, 70 8. E. 301, 1911. 52 Smith v. Com. 133 Ky. 532, 118 S. W. 368, 1909; State v. Causer, 87 S. C. 516, 70 S. E, 161, 1911; State v. Badgett, 87 S. C. 543, 70 6. E. 301, 1911, 53 State v. Lance, 149 N. C. 551, 63 S. E. 198, 1908. See authorities supra footnote 51 this section. 54 Hunn v. Com, 143 Ky. 143, 136 S. W. 144, 1911. See authorities supra footnote 51 this section. 55 Lewis v. Com. 140 Ky. 652, 131 S. W. 617, 1910. See authorities supra footnote 51 this section. § 425] HOMICIDE. 619 Negligently doing a lawful act,® and thereby causing a homi- cide, the party is guilty of voluntary manslaughter.®” Passion to such an extent as would induce an ordinary man of average disposition to act hastily, and without due delibera- tion or judgment, will reduce a homicide to voluntary man- slaughter in those instances where there was adequate provo- cation for the passion.” But passion suddenly raised, in and of itself, is not sufficient to reduce a homicide to voluntary man- slaughter,” in sudden combat.” where the killing is without provocation, and not Previous ill-will is not presumed to be the cause of a killing in a fight ensuing upon a subsequent accidental meeting, unless 56 As to homicide in negligently doing a lawful act, see [Ala.] Aus- tin v. State, 145 Ala. 37, 40 So. 989, 1906. [Conn.] State v. Campbell, 82 Conn. 671, 135 Am. St. Rep. 293, 74 Atl. 927, 18 A. & E. Ann. Cas. 236, 1910; State v. Goetz, 83 Conn. 437, 30 L.R.A.(N.S.) 458, 76 Atl. 1000, 1910. [Del.] State v. Brown, 2 Marv. (Del.) 380, 36 Atl. 458, 1896. [Fla.] Hampton v. State, 50 Fla. 55, 39 So. 421, 1905; Kent v. State, 53 Fla. 61, 43 So, 778, 1907. [Ga.] Nathan v. State, 131 Ga. 48, 61S. E. 994, 1908; Flannigan v. State, 136 Ga. 132, 70 S. E. 1107, 1911. [Iowa] State v. Moore, 129 Iowa, 514, 106 N. W. 16, 1906. [Ky.] Ewing v. Com. 129 Ky. 237, 111 S. W. 352, 1908. [Mass.] Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264, 5 Am. Crim. Rep. 391, 1884. [N. J.] State v. Young, 69 N. J. L. 592, 55 Atl. $1, 1903. [IN. Y.] People v. Melius, 1 N. Y. Crim. Rep. 39, 1882; People v. Scanlon, 182 App. Div. 528, 117 N. Y. Supp. 57, 1909; People v. Smith, 56 Misc. 1, 105 N. Y. Supp. 1082, 1907. [S. C.] State v. Gilliam, 66 S.C. 419, 45 S. E. 6, 1903; State v. Tucker, 86S. C. 211, 68 S. HE. 523, 1910; State v. Causer, 87 S. C. 516, 76 8. E. 161, 1911; State v. Badgett, 87 S. C. 548, 70 S. E. 301, 1911. Tex.] Gorden v. State, — Tex. rim. Rep. —, 90 S. W. 636, 1904; Jones v. State, — Tex. Crim. Rep. —, 95 8S. W. 539, 1906. 57 Flannigan v. State, 136 Ga. 132, 70 S. E. 1107, 1911. 58 People v. Poole, 159 Mich. 350, 134 Am. St. Rep. 722, 123 N. W. 1093, 1909. Passion engendered by provoca- tion at time of the killing, and not from former provocation or difficul- ty, necessary to reduce « homicide to voluntary manslaughter. Franks v. State, 54 Tex. Crim. Rep. 572, 113 S. W. 941, 1908. “Passion,” as used in this connec- tion, includes both anger and ter- ror. Hocker v. Com. 33 Ky. L. Rep. 944, 111 S. W. 676, 1908. Passion or anger need not be sud- den to constitute adequate cause and reduce homicide to voluntary manslaughter. Gillespie v. State, 53 Tex. Crim. Rep. 167, 109 S. W. 158, 1908. 59 Williams v. State, 161 Ala. 52, 50 So. 59, 1909. 60 [Ala.] Campbell v. State, 23 Ala. 44, 1853. [Miss.] Preston v. State, 25 Miss. 383, 1853. [Minn.] State v. Shippey, 10 Minn. 223, Gil. 178, 88 Am. Dec. 70, 1865. [N. Y.] People v. Sullivan, 7 N. Y. 399, 1852. [N. C.] State v. Johnson, 23 N. C. (I Ired. L.) 354, 835 Am. Dec. 742, 1840. [Pa.] Com. v. Honeyman, Addison (Pa.) 147, 1793; Com. v. Bell, Addison (Pa.) 156, 1 Am. Dee. 298, 1793. 620 CRIMINAL LAW. [§ 425 such is shown to be the case by the circumstances surrounding the act.® Provocation must produce transport of passion rendering the accused incapable of cool reflection and deaf to the voice of rea- son, and must be under such circumstances as to justify and be adequate cause for the passion. The provocation must con- sist of personal violence ; mere words of reproach ® and the like, 61 State v. Baldwin, 152 N. C. 822, 68 S. E. 148, 1910. Rash and inconsiderate impulse will not make a killing voluntary manslaughter; there must be an adequate cause rendering the mind of the accused incapable of reflec- tion, Potts v. State, 56 Tex. Crim. Rep. 39, 118 S. W. 535, 1909. 62 State v. Miele, — Del. —, 74 Atl. 8, 1909; State v. Wiggins, 7 Penn, (Del.) 127, 76 Atl. 632, 1908; State v. Korrelli, — Del. —, 76 Atl. 605, 1910; Battle v. State, 133 Ga. 182, 65 S. EK. 382, 1909. As to provocation reducing homi- cide to voluntary manslaughter, see [Mo.] State v. Matthews, 148 Mo. 185, 71 Am. St. Rep. 594, 49 S. W. 1085, 11 Am. Crim. Rep. 691, 1899. [Pa.] Lynch v. Com. 77 Pa. 205, 1 Am. Crim. Rep. 283, 1870. [Tex.] Bonnard v. State, 25 Tex. App. 173, 8 Am. St. Rep. 431, 7 S. W. 862, 7 Am. Crim. Rep. 462, 1888. [Eng.] Rex v. Ayes, Russ. & R. C. C. 166, 12 Am. Crim. Rep. 276, 1810. Previously arming with a deadly weapon, the provocation must have been great in order to reduce the homicide to voluntary manslaughter. State v. Watkins, 147 Iowa, 566, 126 N. W. 691, 1910. Provocation existing, but the as- sault being beyond all proportion to the provocation, and outrageous either in its manner or continuance, the homicide is voluntary manslaugh- ter. State v. Wooley, 215 Mo. 620, 115 S. W. 417, 1908. Provocation must be so great as to produce such a transport of pas- sion as to render the accused in- capable of cool reflection. State v. Cephus, 6 Penn. (Del.) 160, 67 Atl. 150, 1906; Kannmacher v. State, 51 Tex. Crim. Rep. 118, 101 S. W. 238, 1907. Provocation must be upon an ade- quate cause, and must be so great as to render the accused, for the time beiug, incapable of reason. State v. Honey, 6 Penn. (Del.) 148, 65 Atl. 764, 1906; Rumsey v. State, 126 Ga. 419, 55 S. E. 167, 1906. Provoking difficulty for purpose of inflicting serious injury, but without ‘intention to kill, a resulting homi- cide will be voluntary manslaughter. Young v. State, 53 Tex. Crim. Rep. 416, 126 Am. St. Rep. 792, 110 S. W. 445, 1908. As to nature and adequacy of provocation, see cases, 26 Century Dig. col. 111 §§ 65, 67; 10 Decen. Dig. p. 512; §§ 42, 43; Am. Dig. title “Homicide,” §§ 42, 438. 68 As to words of reproach or threat as provocation, see [Ark.] Wheatley v. State, 93 Ark. 409, 125 S. W. 414, 1910; Clardy v. State, 96 Ark. 52, 1381S. W. 46,1910. [Del.] State v. Underhill, 6 Penn. (Del.) 491, 69 Atl. 880, 1908; State v. Moore, — Del. —, 74 Atl. 1112, 1910; State v. Borrelli, — Del. —, 76 Atl. 605, 1910. [Fla.] Pelt v. State, 58 Fla. 90, 50 So. 832, 1909. [Ga.] Smarrs v. State, 131 Ga, 21, 61 S. E. 914, 1908; Brantley v. State, 5 Ga. App. 458, 63 8. E. 519, 1909. [Mo.] State v. Ed- wards, 2038 Mo. 528, 102 S. W. 520, 1907; State v. Kennedy, 207 Mo. 528, 106 S. W. 57, 1907; State v. Goldsby, 215 Mo. 48, 114 8S. W. 500, 1908; State v. Heath, 221 Mo. 565, 121 8S. W. 149, 1909; State v. ‘Hanson, 231 Mo, 14, 132 8. W. 246, 1910; State v. Sharp, 233 Mo. 269, 1385 S. W. 488, 1911. [Okla.] Re Bollin, 3 Okla. Crim. Rep. 725, 109 Pac. 288, 1910. [S. C.] State v. Bethune, 86 S. C. 148, 67 S. E. 466, 1910. [Tex.] Giles v. State, 60 Tex. Crim. Rep. 436, 1382 S. W. 359, § 425] HOMICIDE. 621 no matter how insulting and approbrious, are not sufficient for that purpose. Sudden quarrel in which killing with fists occurs, is not necessary that the defendant be without fault in order to reduce the homicide to voluntary manslaughter;® and the sudden transport of passion need not be such as to “entirely dethrone the reason.” ® Threats by deceased ® furnish no justification for a killing, and the homicide will be voluntary manslaughter.™ Trespassing on property, though wrongful, is not sufficient 1910; Hardeman v. State, — Tex. Crim. Rep. —, 133 S. W. 1056, 1911. [W. Va.] State v. Crawford, 66 W. Va. 114, 66 S. E. 110, 1909. 64 [Ga.] Renfroe v. State, 8 Ga. App. 676, 70 S. E. 70, 1911 (grave charges against accused’s sister, who was wife of deceased, held not to justify killing or to reduce the homi- cide to voluntary manslaughter) ; [Mo.] State v. Sharp, 233 Mo. 269, 185 S. W. 488, 1911. [Tex.] Harde- man v. State, — Tex. Crim. Rep. —, 133 S. W. 1056, 1911. Jerking accused off of horse, sufficient provocation to reduce homi- cide to voluntary manslaughter, al- though deceased made no hostile demonstration, where the act cre- ated sudden ungovernable passion in the accused. Arnwine v. State, 54 Tex. Crim. Rep. 213, 114 8. W. 796, 1908. Filing complainant charging rape will not constitute “insulting con- duct,” reducing a killing of the woman making the charge to volun- tary manslaughter. McMeans_ v. State, 55 Tex. Crim. Rep. 69, 114 8S. W. 837, 1908. 65 Coffman v. Com. 10 Bush, 495, 1 Am. Crim. Rep. 293, 1874. See High v. State, 26 Tex. App. 545, 8 Am. St. Rep. 488, 10 S. W. 238, 1888. 66 Smith v. State, 83 Ala. 26, 3 So. 551, 7 Am. Crim. Rep. 83, 1887. Sudden provocation, acted on in heat of passion, may reduce a homi- cide to voluntary manslaughter. [Ala.] Holmes v. State, 88 Ala. 26, 16 Am. St. Rep. 17, 7 So. 193, 1889. [N. C.] State v. Roberts, 8 N.C. (1 Hawks) 349, 9 Am. Dec. 643, 1821. {Tenn.] Anthony v. State, Meigs, 265, 33 Am. Dec. 143, 1838. [Tex.] High v. State, 26 Tex. App. 545, 8 Am. St. Rep. 488, 10 S. W. 238, 1888, Sudden passion, without malice, sufficient to reduce a homicide to voluntary manslaughter. Brewer v. State, 160 Ala. 66, 49 So. 336, 1909. Sudden passion, homicide under, is manslaughter, not because the law presumes the passion made the ac- cused unconscious of what he was about to do, but because it presumes that it disturbed his reason. Mc- Bryde v. State, 156 Ala. 44, 47 So. 302, 1908. Sudden heat of passion, occasioned upon a sufficient provocation, rea- sonably calculated to excite ac- cused beyond control, will reduce a homicide to voluntary manslaughter. Watkins v. Com. 129 Ky. 817, 97 S. W. 740, 1906. As to sudden heat of passion being sufficient to reduce a homicide to man- slaughter, see generally, 26 Century Dig. col. 100, §§ 59-64; 10 Decen. Dig. p- 510, § 39; Am. Dig. title “Homi- cide,” § 39. 67 As to threats by deceased and opprobrious language as provocation, see Authorities supra footnote 63 this section. 68 Hardeman v. State, Tex. Crim. Rep. —, 133 8. W. 1056, 1911. 69 As to trespass on property, or other injury thereto, as provocation for homicide in resisting such act, see [Fed.] United States v. Wil- liams, 2 Cranch, C. C. 438, Fed. Cas. No. 16,710, 1823. [Ala.] Harrison v. State, 24 Ala. 67, 60 Am. Dec. 450, CRIMINAL LAW. [§ 425 622 provocation to justify a homicide and to reduce it to voluntary manslaughter.” “Wilfully,” in a statute making killing unlawfully and wil- fully, but without malice, voluntary manslaughter, means mere- ly that the act was done voluntarily, with a bad purpose, and is synonymous with “designedly,” “intentionally,” “without lawful excuse.” § 426. Involuntary manslaughter—Definition of. In- voluntary manslaughter,’ according to the old writers, is where death results unintentionally,’ so far as the defendant is con- cerned,* from an unlawful act 1854. [Del.] State v. Woodward, Houst. Crim. Rep. (Del.) 455, 1875. [Ind.] Bloom v. State, 155 _ Ind. 292, 58 N. E. 81, 1900. [Mass.] Com. v. Drew, 4 Mass. 391, 1808. [Minn,] State v. Hoyt, 13 Minn. 132, Gil. 125, 1868. [Miss.] McDaniel v. State, 8 Smedes & M. 401, 47 Am. Dec. 98, 1874. [Mo.] Davis v. Mod- ern Woodmen, 98 Mo. App. 713, 73 S. W. 928, 1903. [N. Y.] Re Ran- dall, 5 N. Y. City Hall Ree. 141, 1820; People v. Randall, 1 Wheeler, C. C. 258, 1820. [N. C.] State v. McDonald, 49 N. C. (4 Jones, L.) 19, 1856; State v. Brandon, 53 N. C. (8 Jones, L.) 463, 1862. 70 Ward v. State, 59 Tex. Crim. Rep. 62, 126 8. W. 1145, 1910. As to trespassing or other injury to property, not furnishing an ade- quate cause for killing, see 26 Cen- tury Dig. col. 131, § 74; 10 Decen. Dig. p. 518, § 50; Am. Dig. title “Homicide,” § 50. 71 O’Barr v. United States, 3 Okla, Crim. Rep. 319, 105 Pac. 988, 1909; Miller v. State, 3 Okla. Crim. Rep. 575, 107 Pac. 948, 1910. 1No such crime as involuntary manslaughter. Carney v. United States, 7 Ind. Terr. 247, 104 S. W. 606, 1907. 2 Ringer v. State, 74 Ark. 262, 85 S. W. 410, 1905. Carrying concealed pistol in vio- lation of law, by the accidental dis- charge of which a homicide occurs, accused is not guilty of involuntary manslaughter under Indiana statute (Burns’s Rev. Stat. 1901, § 1981; on his part,* not amounting to Horner’s Rev. Stat. § 1908). Potter v. State, 162 Ind. 213, 64 L.R.A. 942, 102 Am. St. Rep. 198, 70 N. E. 129, 1 A. & E. Ann. Cas 32, 1904. Intentional shot without design to effect death is not involuntary man- slaughter within Wisconsin Rev. Stat. 1898, § 4362. Johnson v. State, 129 Wis. 146, 5 LR.A.(N.S.) 809, 108 N. W. 55, 9 A. & E. Ann. Cas. 928, 1906. Intent to kill being present, there can be no involuntary manslaughter. Jackson v. State, 76 Ga. 473, 1886. 8 Lewis v. Com. 140 Ky. 652, 131 S. W. 517, 1910. The act resulting in death may be directed against either the person killed or against another person or thing and the killing be of one not intended to be hurt. Quinn v. Com. 5 Ky. L. Rep. 420, 1883. 4[Del.] State v. Blackburn, — Del. —, 75 Atl. 536, 1892; State v. Woods, 7 Penn. (Del.) 499, 77 Atl. 40, 1896. [Ind.] Bruner v. State, 58 Ind. 159, 1878. [Ky.] Com. v. Couch, 32 Ky. L. Rep. 638, 16 L.R.A.(N.S.) 327, 106 S. W. 830, 1908. As to unintentional homicide in the commission of an unlawful act, see exhaustive monographic notes 90 Am. St. Rep. 571-583; 63 L.R.A. 353-406. Careless discharge of gun in strug- gle with deceased to retain gun and shoot another, which act deceased was seeking to prevent constitutes involuntary manslaughter. Smith v. Com. 183 Ky. 532, 118 S. W. 368, 1909. § 426] HOMICIDE, 623 felony,® or from a lawful act negligently performed.? Hence it is involuntary manslaughter where the death of another oc- curs through the defendant’s negligent use of dangerous agen- Carrying pistol unlawfully, with- out the exercise of reasonable care in doing so, which negligence causes the firearm to be exploded killing another, the party will be guilty of involuntary manslaughter although he did not intentionally fire the shot. Lewis v. Com. 140 Ky. 652, 181 S. W. 517, 1910. “Unlawful act,” as used in this connection, as constituting an ele- ment of involuntary manslaughter in anything which one has no right to do. State v. Woods, 7 Penn. (Del.) 499, 77 Atl. 490, 1896. Unlawful assault of decedent by accused, who inflicted injuries caus- ing death, he can be convicted of in- voluntary manslaughter. State v. Woods, 7 Penn. (Del.) 499, 77 Atl. 490, 1896. Unintentional killing in the com- mission of an unlawful act, is the universal definition of involuntary manslaughter. Tyner v. United States, 2 Okla. Crim. Rep. 689, 103 Pac. 1057, 1909. 5 [Del.] State v. Morahan, 7 Penn. (Del.) 494, 77 Atl. 488, 1895. [Idaho] Re Heigho, 18 Idaho, 566, 32 L.R.A.(N.S.) 877, 110 Pac. 1029, 1910. [Ky.] Westrup v. Com. 123 Ky. 95, 6 L.R.A.(N.S.) 685, 124 Am. St. Rep. 316, 93 S. W. 646, 1906.” [Okla.] Tyner v. United States, 2 Okla. Crim. Rep. 689, 103 Pac. 1057, 1909. [Wis.] Beauregard, v. State, — Wis. —, 131 N. W. 347, 1911. Assault with dangerous weapon properly made, and made in a way naturally liable to cause death is not involuntary, but voluntary, manslaughter. Beauregard v. State, — Wis. —, 131 N. W. 347, 1911. Cutting deceased with knife 2% inches long, court probably refused to instruct as to involuntary man- slaughter because the act was like- ly to endanger hfe. Ross v. Com. 21 Ky. L. Kep. 1344, 55 S. W. 4, 18 Am, Crim. Rep. 294, 1900. 6 Infra, §§ 454 et seq., 496, et seq. See [Ark.] Tharp v. State, — Ark. —, 187 S. W. 1097, 1911. [Del.] State v. Blackburn, — Del. —, 75 Atl. 536, 1892. [Ky.] Buckner v. Com. 14 Bush. 601, 1878; Westrup v. Com. 123 Ky. 95, 6 L.R.A.(N.S.) 685, 124 Am. St. Rep. 316, 93 S. W. 646, 1906. [N. J.] State v. Young, —N. J. 56 Atl. 471, 1903. [Okla.] Tyner v. United States, 2 Okla. Crim. Rep. 689, 103 Pac. 1057, 1909. [Tex.] Joy v. State, 57 Tex. Crim. Rep. 93, 123 S. W. 584, 1909. As to negligent homicide, see ex- haustive monographic note 61 L.R.A. 277-300. Defined as occurring where one in dving an unlawful act which is not a felony and does not tend to great bodily harm, or in doing a lawful act without due or proper caution or requisite skill, without design causes the death of another. State v. Underhill, 6 Penn. (Del.) 491, 69 Atl. 880, 1908. Lawful act done without proper caution or requisite skill, unguarded- ly or undesignedly resulting in the death of another. State v. Mora- han, 7 Penn. (Del.) 494, 77 Atl. 488, 1895. New York Penal Code of 1882 by § 189 only two degrees of man- slaugliter are recognized: First. Homicides in commission of misde- meanors or in the heat of passion, but in a cruel or unusual manner; Second. All other forms of homicide not murder, or excusable, or justifi- able. It is no defense to an indictment for manslaughter that the homicide therein alleged appears by the evi- dence to have been committed with malice aforethought, and was, there- fore, murder; but the defendant in such case may, notwithstanding, be properly convicted of the offense of manslaughter. Com v. McPike, 3 Cush, 181, 50 Am. Dec. 727, 1849. 624 CRIMINAL LAW. [§ 426 cies,” and so where death incidentally but unintentionally results in the execution of a trespass.® The distinction, however, between voluntary and involuntary manslaughter is now obsolete, in most jurisdictions, so far as concerns the common law.’ Unless it should be required by statute, the terms “voluntary” and “involuntary” are not now introduced either in indictment, verdict or sentence. But where the distinction is made by statute, there can be no con- viction of involuntary manslaughter on an indictment for vol- untary manslaughter.” § 427. Excusable homicide—Kinds or classes of. Ex- cusable homicide is of three kinds: First. Where a man doing a lawful act, without any intention of hurt, non-negligently kills: another ; as, for instance, where a man is hunting in a park, and unintentionally kills a person concealed. This is called homi- cide per infortunium, or by misadventure.’ Second. Se defen- dendo, or in self-defense, which exists where one is suddenly as- saulted, and, in the defense of his person, where immediate and great bodily harm would be the apparent consequence of wait- ing for the assistance of the law, and there is no other probable means of escape, he kills the assailant. By the older text writ- ers this species of homicide is sometimes called chance medley 7Infra, §§ 329, et seq. [Eng.] Reg. v. Murray, 5 Cox, C. C. 509, 1852; Reg. v. Chamberlain, 10 Cox, C. C. 486, 1867; Rigmaidon’s Case, 1 Lewin, C. C. 180, 1838; Rex v. Tim- mins, 7 Car. & P. 499, 32 Eng. C. L., 1836; Reg. v. Dalloway, 2 Cox, C. C. 273; Reg. v. Swindall, 2 Car. & K. 230, 2 Cox, C. C. 141, 1846; Reg. v. Pargeter, 3 Cox, C. C. 191, 1848; Reg. v. Lowe, 4 Cox, C. C. 449, 3 Car. & K. 123, 1850; Reg. v. Smith, 11 Cox, C. C. 210, 1869. [Ind.] Adams v. State, 65 Ind. 565, 1879. [Ky.] Com. v. Matthews, 89 Ky. 287, 12 S. W. 333, 1889; Smith v. Com. 93 Ky. 318, 20 S. W. 229, 1892. [N. J.] State v. O’Brien, 32 N. J. L. 169, 1867. 81 Hale, P. C. 449; Fost. C. L. 270. [Eng.] Reg. v. Archer, 1 Fost. & F. 351, 1858. [Me.] State v. Smith, 32 Me. 368, 54 Am. Dec. 578, 1851. [Ohio] State v. Turner, Wright (Ohio) 20, 1801. [Vt.] State v. Center, 35 Vt. 378, 1862. In involuntary manslaughter, there can be no aiders or abettors. See Adams v. State, 65 Ind. 565, 1879. : 9United States v. Meagher, 37 Fed. 875, 1888. Compare: Brown v. State, 34 Ark. 232, 1879. Price v. Com. 33 Gratt. 819, 36 Am. Rep. 797, 1879. 10See [Ga.] Lyman v. State, 89 Ga. 337, 15 S. EH. 467, 1892. [Ind.] Bruner v. State, 58 Ind. 159, 1877. [Ky.] Hadley v. Com. 15 Ky. L. Rep. 736, 24 S. W. 609, 1894. [Pa.] Walters v. Com. 44 Pa. 185, 1862; Com. v. Gable, 7 Serg. & R. 423, 1821. [Wash.] State v. Gile, 8 Wash, 12, 35 Pac. 417, 1894. lInfra, §§ 454 et seq. Burden is upon defendant. Peo- ple v. Olsen, 80 Cal. 122, 22 Pac. 125, 1889. § 429] HOMICIDE, 625 or chaud medley, words of nearly the same import. As will hereafter be explained more fully, the same right of self-defense is extended to the relations of master and servant, parent and child, and husband and wife; and to those cases where homicide is committed in the defense of important rights; and where no more force is used and no other instrument or mode is employed than is necessary and proper for such purpose.” Third. Kill- ing from necessity, which is elsewhere discussed.® § 428. Justifiable homicide is homicide in discharge of duty. Justifiable homicide is that which is committed, either, first, in discharge of a duty, such as by an officer executing a criminal pursuant to the death warrant and in strict conformity to the law;* secondly, in prosecution of public justice, as where officers or their assistants kill as a necessary incident to an ar- rest;* or thirdly, for the prevention of any atrocious crime, attempted to be committed by force, such as murder, robbery, house breaking in the nighttime, rape, mayhem, or any violent act of felony against the person.* But in such cases the at- tempt must be not merely suspected, but apparent, and the dan- ger must be apparently imminent, and the opposing force or resistance apparently necessary to avert the danger or defeat the attempt.* § 429. In verdict no distinction between excusable and justifiable homicide. The distinction, in result, between jus- tifiable and excusable homicide is now practically abandoned.' In former times, in the latter case, as the law presumed that the slayer was not wholly free from blame, he was punished, at least by forfeiture of goods. 2Infra, §§ 612 et seq. 3‘Supra, §§ 126 et seq.; infra, § ‘641, lInfra, § 528. 2See infra, §§ 528 et seq. 3 United States v. Wiltberger, 3 Wash. C. C. 515, Fed. Cas. No. 16,- 738, 1818; and see State v. Ruther- ford, 8 N. C. (1 Hawks) 457, 9 Am. Dec. 658, 1822; State v. Roane, 13 N. C. (2 Dev. L.) 58, 1829. 431. Com. 182; 1 Russell, Crimes, 9th Am. ed. 893-899; infra, § 612. 1“Justifiable’ and “excusable” homicide — Distinction abandoned. —_ According to Sir J. F. Stephen, “the ancient law was that in cases where Crim. L. Vol. I—40. But in this country such a rule homicide was proved to be strictly hela the jury might acquit, but that in cases of homicide per infortuniam and se defendendo, they were to give a special verdict, and the prisoner was to be pardoned as of course, the reason being that the party forfeited his goods at common law.” 3 Stephen, History Crim. Law, 76. —tThis gave way early in the last century to the practice of taking “general verdicts of acquittal in plain cases of death per infortuniam, and also, seems, of se defendendo.” 3 Stephen, History Crim. Law, 76. 626 [§ 429 , CRIMINAL LAW. is not known ever to have been recognized; it having been the practice here, as it now is in England, where the grade does not reach manslaughter, for the jury, under the direction of the court, to acquit of the homicide.? IL. Certain Requisttes or Homicipr in GENERAL. § 430. Deceased must have been living at time of mor- tal blow. It is essential in all cases to show that the deceased was living at the time when the alleged mortal blow was struck." Thus where it was doubtful, in a case where a mother was charged with throwing a child overboard, whether it was living or dead at the time, it was held that it rested on the govern- ment to show it was living at the time, it appearing that the mother was laboring under puerperal fever, and the idea of malice being thereby excluded.? The presumption that a per- son proved to have been alive at a particular time is still so, holds until it is rebutted by the lapse of time, or other satisfac- tory proof.? Hence it follows that in cases of infanticide it must be shown that the child was born alive.* And for this purpose proof of a“ independent circulation on the part c the child is necessary.° § 431. Death must be imputable to defendant’s act. As has been already fully illustrated, the death must be traced to the blow charged to the defendant.’ 2See infra, § 678. 1See supra, §§ 196, 417; infra, § 649; and also Wharton, Crim. Ev. § 327; 21 Cyc. 662; 21 Am. & Eng. Enc. Law, 2d ed. p. 92. As to assaults upon a dead body supposed to be alive, see supra, § 165. 2United States v. Hewson, Brun- ner Col. Cas. 532, 7 Boston L. Rep. 361; Fed. Cas. No. 15,360 (per Story, J.), 1844. 8Com. v. Harman, 4 Pa, 269, 1846; Wharton, Crim. Ev. §§ 324, 810. 4See Wharton, Crim. Ev. § 327. State v. Prude, 76 Miss. 543, 24 So. 871, 11 Am. Crim. Rep. 466, 1899; Evans v. State, 48 Tex, Crim. Rep. 589, 98 S. W. 974, 1905; Cordes v. State, 54 Tex. Crim. Rep. 204, 112 S. W. 943, 1908. Child before complete birth not subject of homicide. See cases last cited. 5 State v. Winthrop, 43 Iowa, 519, 22 Am. Rep. 257, 2 Am. Crim. Rep. 274, 1876. See infra, § 572. 1 Supra, §§ 158, et seq. 159; and see infra, § 465. See [Ala.] McDan- iel v. State, 76 Ala, 1, 1884. [Cal.] People v. Ah Luck, 62 Cal. 503, 1882. [Ind.] Hall v. State, 132 Ind. 317, 31 N. E, 536, 1892. [Neb.] Denman v. State, 15 Neb. 138, 17 N. W. 347, 1883. [N. C.] State v. Hambright, 111 N. C. 707, 16 S. E. 411, 1892. § 433] HOMICIDE. 627 § 432. Accelerating death of dying person is homicide. It follows from what has been said that accelerating a death of a person diseased or wounded is homicide." § 433. The homicide must not have been in legitimate public war. The words, “in the peace of God and the said commonwealth, then and there being,” as used in the indict- ment, and in the definition of murder, mean merely that it is not murder to kill an alien enemy in course of war;? at the same time it must be remembered that killing even an alien enemy, unless such killing occur in the actual exercise of war, is murder.* The plea of an Indian war with the United States cannot avail as an excuse for murder committed by “friendly” Indians, of “Indians at war,” and in a part of the country not involved in hostilities.* Homicide by any person forming part of a belligerent army, recognized as such, is not murder when committed in due course of war.* 1Supra, § 197. See [Ala.] State vy. Morea, 2 Ala. 275, 1841; Tidwell v. State, 70 Ala. 33, 1881. [Ark.] Rogers v. State, 60 Ark. 76, 31 L.R.A. 465, 46 Am. St. Rep. 154, 29 S. W. 894, 1894. [Cal.] People v. Ah Fat, 48 Cal. 61, 1874; People v. Moan, 65 Cal. 532, 4 Pac. 545, 1884; People v. Lanagan, 81 Cal. 142, 22 Pac. 482, 1889. [Fla.] Baker v. State, 30 Fla. 41, 11 So. 492, 1892. [Iowa] State v. Castello, 62 Iowa, 404, 17 N. W. 605, 1888. [La.] State v. Matthews, 38 La. Ann. 795, 1886. [Mass.] Com. v. Fox, 7 Gray, 585, 1856. [Pa.] Com. v. McCue, 1 Lack. Leg. Rec. 419, 1879. [Tenn.] Fisher v. State, 10 Lea, 151, 1882. [Tex.] Williams v. State, 2 Tex. App. 271, 1877; Wil- son v. State, — Tex. Crim. Rep. —, 24 8. W. 409, 1893. [Va.] Livingston v. Com. 14 Gratt. 592, 1857. Blow inflicted by accused not con- tributing to death of deceased, he will not be held responsible for the death no matter how illegal his in- tent. Rhodes v. State, 39 Tex. Crim. Rep. 332, 45 S. W. 1009, 1898. Deceased in delicate state of health at time of receiving blow which ac- celerates death, accused is guilty of In all such cases the rule respondeat superior will murder. Rex v. Martin, 5 Car. & P. 128, 1832. 1 Wharton, Conf. L. § 911; 3 Co. Inst. 50; 1 Hale, P. C. 433; supra, § 316; infra, § 746. 21 Hale, P. C. 433; 3 Co. Inst. 50; State v. Gut, 138 Minn. 341, Gil. 315, 1867. 3 Jim v. Territory, 1 Wash. Terr. 63, 1859; and see proceedings in the Modoes’ Case, June, 1873. Killing “hostile” Indians.—In Com. v. Robertson, Addison (Pa.) 246, 1794, the defendant, who was charged with killing an Indian, was permit- ted to set up, as showing that he had apparent ground for self-defense, that the Indian belonged to a hostile tribe and was himself hostile. Hostile acts of subject of foreign state-—Whether a subject of a for- eign state is indictable for hostile acts directed by his sovereign is else- a considered. Supra, §§ 124, 4Supra, § 329; Buron v. Denman, 2 Exch, 167, 1848; Secretary of State v. Kamachee, 13 Moore, P. C. C. 22, 7 Moore, Ind. App. 476, 1859; Smith v. Brazelton, 1 Heisk. 44, 2 Am. Rep. 678, 1870; Sequestration Cases, 30 628 CRIMINAL LAW. Ig 433° apply.» And this immunity has been extended to acts done within the territory of one sovereign, under command of a for- eign sovereign, in time of peace.® § 434. There must be proof of the corpus delicti. The corpus delicti,’ in all cases of homicide, must be proved as an essential condition of conviction.? To the corpus delicti, in this sense, as is elsewhere seen, it is requisite: first, that the de- ceased should be shown to have died from the effect of a wound; second, that it should appear that this wound was unlawfully inflicted, and that the defendant was implicated in the crime. The evidence on these points is discussed in another volume.® Tex. 689, 98 Am. Dec. 494, 688, 1868, and other cases cited in an interest- ing review of this topic in Southern Law Rev. April 1873, 337. 5 Supra, §§ 124 et seq. 329. This question is discussed in 2 Stephen, History Crim. Law, pp. 63 et seq. The right to kill in war is limited to combatants in contending armies. None but a recognized soldier can ex- ercise it, and only against recognized soldiers in arms. It is, therefore, homicide for a soldier to kill a citizen unarmed, or even a disarmed enemy; and, on the other hand, it is homicide for a private citizen to kill a soldier belonging to a hostile army. But when a nation is roused to guerilla resistance to an invader, and when the public passion is in continuous excitement, the offense may be but manslaughter. Whether or no a state ean call forth its citizens as individ- uals to resist an invasion or rebel- lion, so as to justify such citizens in killing, otherwise than in open bat- tle, members of the hostile army, is a question that will be decided one way if it comes up before the mili- tary tribunals of the army thus as- sailed, and another way if it comes up before a jury of the country that invokes this private warfare. On general principles, it has been ar- gued, such killing is felonious homi- cide, though as committed in hot blood, not murder unless it were the cover for the wreaking of private revenge. But the better opinion, as is shown by Holtzendorff, is, that however a state may violate the law of nations by calling all its subjects to join in destroying an invader by private as well as by public warfare, yet as the subject is bound to obey his sovereign, and as the home law overrules, intraterritorially, the law of nations, such command is an ab- solute defense before the home tribu- nals, unless personal malice be shown. Holtz. Straf. iii. 423. 6 Supra, § 329. 1See supra, §§ 346, et seq. “Corpus delicti? means simply the body of the crime; the manner in which death was inflicted, or the crime consummated, has no relation to the corpus delicti. State v. Knapp, 70 Ohio St. 380, 71 N. E. 705, 1 A. & BE. Ann. Cas. 819, 1904. 2 As to corpus delicti generally, its proof and sufficiency of proof, see [Ga.] Green v. State, 125 Ga, 742, 54 S. E. 724, 1906. [Ky.] Sprouse v. Com. 132 Ky. 269, 116 S. W. 344, 1909. [Mo.] State v. Brown, 168 Mo. 449, 68 S. W. 568, 1902. [Ohio] State v. Knapp, 70 Ohio St.'380, 71 N. E. 705, 1 A. & E. Ann. Cas. 819, 1904. [Tex.] Gay v. State, 40 Tex. Crim. Rep. 242, 49 S. W. 612, 1899, 42 Tex. Crim. Rep. 450, 60 S. W. 771, 1901. See also supra, chap. XI. As to what corpus delicti consists of, see note 50 Am. St. Rep. 143. 8 Wharton, Crim. Ev. §§ 324-5. See also 3 Wharton & S. Med. Jur. §§ 778, et seq.; 7 Am. & Eng. Ene. Law, 2d ed. 861; 3 Enc. Ev. p. 660; 2 Words & Phrases, 1624. This definition of corpus delicti has been contested, it being assumed that corpus delicti means the dead body of the deceased. But the true § 436] HOMICIDE. 629 § 435. —Identity of deceased. The identity of the de- ceased with remains of body found is no part of the corpus de- lactt in a prosecution for homicide;? but any evidence tending to identifying a dead body with the crime charged*—such as identification of clothing or ornaments found on the remains of body produced as those worn by the deceased ®@—is admissible ; and where the prosecution is for the murder of one of a family who were burned up in their home, the circumstances relating to what was found in the ruins, including portions of five un- identified bodies, are proper as tending to establish the identity of the deceased with one of those unidentified bodies, and thus prove the corpus delicti.* § 436. The death must have been within a year and a day from the injury. By the English common law the death must have occurred within a year and a day from the date of the injury received; + and, hence, an indictment which does not meaning of the words is not “body of the deceased,” but “body of the crime;” and this involves the essen- tial features of the crime as bearing on the issue. Any other meaning of the term would render nugatory the limitations that the burden of the corpus delicti is on the prosecution, and that accomplices are to be cor- roborated as to the corpus delicti. As adopting definition of text, see Wharton, Crim. Ev. §§ 324, 325, 633. [Colo.] McBride v. People, 5 Colo. App. 91, 37 Pac. 953, 1894. [Iowa] State v. Stowell, 60 Iowa, 535, 15 N. W. 417, 1883. [Mo.] State v. Dick- son, 78 Mo. 489, 1883. [Neb.] Drees- sen v. State, 38 Neb. 375, 56 N. W. 1024, 1893. [Tex.] Lovelady v. State, 14 Tex. App. 545, 1883. [W. Va.] State v. Flanagan, 26 W. Va. 116, 1885. [Wis.] Zoldoske v. State, 82 Wis. 580, 52 N. W. 778, 1892. Motive need not be shown in first instance, See [Ala.] Welsh v. State, 97 Ala. 1, 12 So. 275, 1893. [Idaho] State v. Schieler, 4 Idaho, 120, 37 Pac. 272, 1894. [N. Y.] People v. Downs, 123 N. Y. 558, 25 N. E. 988, 1890. - [Pa.] Com. v. Johnson, 162 Pa. 63, 29 Atl. 280, 1894. [Tex.] Jackson v. State, 29 Tex. App. 458, 16 S. W. 247, 1891; Harris v. State, 80 Tex. App. 549, 17 S. W. 1110, 1891; Maleek v. State, 33 Tex. Crim. Rep. 14, 24 S. W. 417, 1893. [Vt.] State v. Roberts, 63 Vt. 139, 21 Atl. 424, 1890. : 1[Ala.] Stallworth v. State, 146 Ala. 8, 41 So. 184, 1906. [Colo.] Ausmus v. People, 47 Colo. 167, 107 Pac. 204, 19 A. & E. Ann. Cas. 491, 1910. [Idaho] State v. Lockhart, 18 Idaho, 730, 111 Pac. 853, 1910. [Ill] Campbell v. People, 159 Ili. 9, 50 Am. St. Rep. 134, 42 N. EH, 123, 1895. [Ky.] Laughlin v. Com. 18 Ky. L. Rep. 640, 37 S. W. 590, 1896. [Mont.] State v. Lucey, 24 Mont. 295, 61 Pac. 994,1900. [N. Y.] Peo- ple v. Palmer, 109 N. Y. 110, 4 Am. St. Rep. 423, 16 N. E. 529, 7 Am. Crim. Rep. 399, 1888. [Tex.] Carter v. State, 39 Tex. Crim. Rep. 345, 46 S. W. 236, 48 S. W. 508, 1898, re- versed on other grounds in 177 U. 8. 442, 44 L. ed. 839, 20 Sup. Ct. Rep. 687, 1899. 2 People v. Matthews, — Cal. —, 58 Pac. 371, 1899; Keith v. State, 157 Ind. 376, 61 N. E. 716, 1901. 8 Newell v. State, 115 Ala. 54, 22 So. 572, 1897; State v. Novak, 109 Iowa, 717, 79 N. W. 465, 1899. 4State v. Tettaton, 159 Mo, 354, 60 S. W. 743, 1901; State v. Nordall, 38 Mont. 327, 99 Pac. 960, 1909. 13 Co. Inst. 53; infra, § 670. See CRIMINAL LAW. [§ 436 630 aver the death to have occurred within this limit is fatally de- fective.? § 437. Malice to be inferred from circumstances. The old distinction between express and implied malice can- not be logically maintained.1_ There is no case of malicious homicide in which the malice is not inferred from the attendant circumstances; no case in which it is demonstrated as express. We have no power to ascertain the certain condition of a man’s heart.” satisfactorily, from his acts.° [Ga.] Thomas v. State, 67 Ga. 460, 1881. [Mass.] Com. v. Parker, 2 Pick. 550, 1824; Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89, 1869. [N. C.] State v. Orrell, 12 N. C. (1 Dev. L.) 189, 17 Am. Dec. 5638, 1826. [Tenn.] Percer v. State, 118 Tenn. 765, 103 S. W. 780, 1907. [Va.] Clark v. Com. 90 Va. 360, 18 S. E. 440, 1893. 2 [Cal.] People v. Aro, 6 Cal. 207, 65 Am. Dec. 503, 1856; People v. Kel- ly, 6 Cal. 210, 1856. [Mo.] State v. Mayfield, 66 Mo. 125, 1877. [N. C.] State v. Orrell, 12 N. C. (1 Dev. L.) 139, 17 Am. Dec. 563, 1828. New York Penal Code.—This lim- itation is not contained in the defini- tion of murder in the New York Penal Code of 1882. As to causal relations, see supra, §§ 194, 199, 200. 1Supra, §§ 145-147; § 418, foot- notes, 6, 9 & 10. As to what malice is, see supra, §§ 137 et seq. See [Cal.] People v. Bruggy, 93 Cal. 476,29 Pac. 26, 1892. [Conn.] State v. Scheele, 57 Conn. 307, 14 Am. St. Rep. 106, 18 Atl. 256, 8 Am. Crim. Rep. 545, 1889. [Fla.] Lovett v. State, 30 Fla. 142, 17 L.R.A. 705, 11 So. 550, 1892. [Ga.] Moon v. State, 68 Ga. 687, 1882. [Neb.] Carr v. State, 23 Neb. 749, 37 N. W. 630, 1888. [Tex.] Boyd v. State, 28 Tex. App. 137, 12 8. W. 737, 1889; Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087, 1889; Powell v. State, 28 Tex. App. 393, 13 S. W. 599, 1890; Page v. State, — Tex. Crim. Rep. —, 24 S. W. 420, 1893; Taylor v. State, — Tex. Crim. Rep. —, 26 8. W. 627, 1894. The best we can do is to infer his intent, more or less “Express malice’ and “malice aforethought” have same meaning. See Martinez v. State, 30 Tex. App. 129, 28 Am. St. Rep. 895, 16 S. W. 767, 1891; Gonzalez v. State, 30 Tex. App. 2038, 16 S. W. 978, 1891; Moody v. State, 30 Tex. App. 422, 18 S. W. 94, 1891; Ellis v. State, 30 Tex. App. 601, 18 S. W. 189, 1892; Smith v. State, 31 Tex. Crim. Rep. 14, 19 S. W. 252, 1892. For definition of express malice, see Callahan v. State, 30 Tex. App. 275, 17 S. W. 257, 1891; Sherar v. State, 30 Tex. App. 349, 17 S. W. 621, 1891; Baltrip v. State, 30 Tex. App. 545, 17 S. W. 1106, 1891. See also 5 Words & Phrases, 4299. 2 According to the year books: “Comen erudition est q l’entent d’un home ne serr trie, car le Dieble n’ad consuance de lV’entent de home,”-— which may be liberally translated, “It is common learning that the thought of a man is not triable, for the Devil himself has not knowledge of man’s thoughts.” 17 Edw. IV. 2, pl. 2; 18 Case & Comment, 189. 8 Supra, § 159. See, for a full dis- cussion of this question, Wharton, Crim. Ev. § 734. As to inference to be drawn from other crimes, see Wharton, Crim. Ev. § 30. See also [Colo.] Murphy v. People, 9 Colo. 485, 18 Pac. 528, 1887. [Ga.] Sterling v. State, 89 Ga. 807, 15 S. E. 748, 1892; Johnson v. State, 90 Ga. 441, 16'S. E. 92, 1892; Gal- lery v. State, 92 Ga. 463, 17 S. E. 863, 18938. [Ky.] Whittaker v. Com. 13 Ky. L. Rep. 504, 17 S. W. 358, 1891. [La.] State v. Deschamps, 41 La, Ann. 1051, 7 So. 133, 1890. § 438] HOMICIDE. 631 Malice in this sense may be considered under the following heads: 1. Intent to kill. 2. Intent to do bodily harm. § 438. When there is deliberate, unlawful killing, mal- ice is inferred. Where there is a deliberate intent to kill, un- less it be in the discharge of a duty, imposed by the public au- thorities, or in self-defense, or in necessity, and killing follows, the offense is murder at common law. And, as will hereafter be more fully seen, an intermediate provocation just prior to the offense forms no defense.’ The reason of this is obvious. If all that was necessary for a man to do to relieve himself from the guilt of murder were such provocation, there would rarely be a case of homicide without such provocation being inten- tionally provoked.? The mode of proving malice, as is elsewhere more fully shown,’ is that of the ordinary inductive syllogism: from certain facts, malice is to be inferred: here these facts exist; hence here malice is to be inferred. The question is one of logic, not of formal law.* used are also elsewhere distinctively discussed.° [Mass.] Com. v. Holmes, 157 Mass. 233, 34 Am. St. Rep. 270, 32 N. E. 6, 1892. [Minn.] State v. Lentz, 45 Minn. 177, 47 N. W. 720, 1891; State v. Rose, 47 Minn. 47, 49 N. W. 404, 1891. [Miss.] Grissom v. State, 62 Miss. 167, 1884. [Mont.] Territory v. Bryson, 9 Mont. 32, 22 Pac. 147, 1889. [N. Y.] Peo- ple v. Harris, 136 N. Y. 423, 33 N. E. 65, 1893; People v. Sliney, 137 N. Y. 570, 38 N. E. 150, 1893; People v. Martell, 188 N. Y. 595, 33 N. E. 838, 1898. [Oreg.] State v. Ching Ling, 16 Or. 419, 18 Pac. 844, 1888; State v. Ingram, 23 Or. 434, 31 Pac. 1049, 1893. [Pa.] Meyers v. Com. 83 Pa. 131, 1876; Com. v. Buccieri, 153 Pa. 535, 26 Atl. 228, 1893. [S. C.] State v. Levelle, 34 S. C. 120, 27 Am. St. Rep. 799, 13 S. E. 319, 1891; State v. Ariel, 38 S. C, 221, 16 8. E. 779, 1898. [Tex.] Harris v. State, 8 Tex. App. 90, 1880. [Va.] Weath- erman v. Com. 1 Va. Dec. 819, 19 S. E. 778, 1894. 1Infra, § 604. The inferences to be drawn from the weapons As is noticed 2Mason’s Case, Fost. C. L. 132; East, P. C. chap. 5, § 53. 8 Wharton, Crim. Ev. § 734. See 8 Enc. Ev. p. 366. 4Small v. Com. 91 Pa. 304, 1879; Pointer v. United States, 151 U. S. 396, 38 L. ed. 208, 14 Sup. Ct. Rep. 410, 1893. 5 Wharton, Cr. Ev. §§ 765, 768, 774-779; 6 Ene. Ev..pp. 583, 587, 625, 634. [Ill] Smith v. People, 142 Ill. 117, 31 N. E. 599, 1892. [Miss.] Bishop v. State, 62 Miss. 289, 1884. [N. Y.] People v. Chapleau, 121 N. Y. 266, 24 N. E. 469, 1890. [N. C.] State v. Whitson, 111 N. C. 695, 16 S. E. 332, 1892. [Va.] Com. v. Brown, 90 Va. 671, 19 S. E. 447, 1894, As to weapon used or manner of its use, see [Ark.] Tanks v. State, 71 Ark. 459, 75 S. W. 851, 1903. [Del.] State v. Adams, 6 Penn. (Del.) 178, 65 Atl. 510, 1906. [Ind.] Hasen- fuss v. State, 156 Ind. 246, 59 N. E. 463, 1901. See also 6 Enc. Ev. p. 587. 632 CRIMINAL LAW. [§ 438 in a former section, it is not necessary to prove prior evil purpose in order to constitute malice. Hence the term “malice afore- thought” does not require proof of malice for any prior appre- ciable period.” § 439. If intent be only to inflict a slight hurt, offense is but manslaughter. At common law, the intent to do “enormous” or “severe” bodily harm, followed up by homicide, constitutes murder; though, as will be seen hereafter, such an offense falls, in those states where this distinction exists, under the head of murder in the second degree. Homicides of this character are numerous; and it is easy to suppose a homicide in a duel that may be so ranked, e. g., where the intention was to maim, not to kill. The distinction in a case of this kind is often slight; and where a statutory line is to be followed, it has been held that when the damage intended was such as would probably result in death, it is murder in the first degree, even though death may have been but incidental to the offender’s purpose.’ In all cases of such outrageous hurt as to make the death a natural consequence, we have a right to infer such an intent,” but it is otherwise when the hurt was less serious, and the presumption of an intent to kill less violent.* Independently of the statutes, it has been said that though A, in anger, from preconceived malice, intend only to severely beat B, and happen to kill him, it will be no excuse that he did not intend all the mischief that followed; for what he did was malum in se, and he must be answerable for its consequences. He beat B with an intention of doing him great bodily harm, and is therefore answerable for all the harm he did.* So, if a large stone be thrown at one with a deliberate intent to seriously Birdwell v. State, — Tex. Crim. Rep. —, 48 S. W. 583, 1898. 6 Supra, § 438. 7 Ibid. See [Fed.] United States v. Cor- nell, 2 Mason, 91, Fed. Cas. No, 14,- 868, 1820. [Mo.] Green v. State, 13 Mo. 382, 1850. [Mont.] Territory v. Roberts, 9 Mont. 12, 22 Pac. 132, 1889, [N. Y.] People v. Clark, 7 N. Y. 385, 1852. See also cases cited supra, § 152; infra, § 506. 1 Mayes v. People, 106 Ill. 306, 46 Am. Rep. 698, 1883; Com. v. Green, 1 Ashm. (Pa.) 289, 1826. As to murder in second degree, see State v. Murdy, 81 Iowa, 603, 47 N. W. 867, 1891; Vance v. Com. 1 Va. Dec, 830, 19 S. E. 785, 1894. 2See Wellar v. People, 30 Mich. 16, 1 Am. Crim. Rep. 276, 1874; State v. Ah Lee, .8 Or. 214, 1880. 8 Mayes v. People, 106 Ill. 306, 46 Am. Rep. 698, 1883. ‘ - Fost. 259. See supra, §§ 133-— 59. § 440] HOMICIDE, 633 hurt, though not to kill him, and it actually kills him, this is murder.’ But the nature of the instrument, and the manner of using it, as calculated to produce great bodily harm or not, will vary the offense in such cases. If the intent be merely to inflict a slight chastisement, and death arises from some pecu- liarity in the deceased’s constitution (e. g., inflammation from a scratch), then the offense is but manslaughter; and so where the injury is only mischievously inflicted, with no intention seri- ously to hurt.® § 440. Killing when intending to produce miscarriage ismurder. Under this head we may class attempts to produce miscarriage, resulting in the death of the mother. Killing of this character, when incidental to great bodily harm to the moth- er, or death to the child, has been held murder at common law.* It is otherwise, as will hereafter be seen, when there was no in- tent to do a severe injury, or where the result is attributable merely to negligence.” 51 Hale, P. C. 491. 6 Infra, § 448. As taking a more stringent view, see State v. Smith, 2 Strobh. L. 77, 47 Am. Dec. 589, 1847. Artificial means to make sexual intercourse practicable — Resultant death—In Vermont, in a case show- ing peculiar depravity, where a man, in order to have unlawful sexual in- tercourse with a girl, used artificial means, with her consent, to make such connection practicable, as a re- sult of which the girl died, the kill- ing was held but manslaughter. State v. Center, 35 Vt. 378, 1862. This case, supposing the girl was old and intelligent enough to con- sent, may be sustained on the ground of Volenti non fit injuria (see supra, § 180), but not otherwise. Rex v. Cox, Russ. & R. C. C. 362, 1 Leach, C. L, 71, 1818. Serious bodily harm.—To consti- tute grievous bodily harm, it is not necessary that the injury should be either permanent or dangerous; if it is such as seriously to interfere with comfort or health, the allegation is sustained. Reg. v. Ashman, 1 Fost. & F. 88, 1858. See 7 Words & Phrases, 6420. 1See [Eng.] Reg. v. Gaylor, Dears. & B.C. C. 288, 7 Cox, C. C. 253, 40 Eng. L. & Eq. Rep. 556, 1857. [Del.] State v. Lodge, 9 Houst. (Del.) 542, 33 Atl. 312, 1892. [Idaho] State v. Alcorn, 7 Idaho, 599, 97 Am. St. Rep. 252, 64 Pac. 1014, 1901. [IIL] Howard v. People, 185 Ill. 552, 57 N. E. 441, 1900. [lowa] State v. Moore, 25 Iowa, 128, 95 Am. Dec. 776, 1868. [Mass.] Com. v. Parker, 9 Met. 263, 43 Am. Dec, 396, 1845; Com. v. Jack- son, 15 Gray, 187, 1860. [Mich.] People v. Sessions, 58 Mich. 594, 26 N. W. 291, 1886. [Pa.] Com. ex rel. Chauncey v. Keeper of Prison, 2 Ashm, (Pa.) 227, 1838. [Tex.] Ex parte Fatheree, 34 Tex. Crim. Rep. 594, 31 S. W. 403, 1895. [Wis.] State v. Dickinson, 41 Wis. 299, 2 Am, Crim. Rep. 1, 1854. See also infra, § 516. Averment in indictment—In Mis- souri the indictment in such case must, it is said, aver that the woman was quick with child. State v. Emerich, 13 Mo. App. 492, 1883, But see infra, § 781; supra, §§ 224, 225. 2Infra, §§ 450, 516. [Ill.] Yundt v. People, 65 Ill. 372, 1872. [Ky.] Peoples v. Com. 87 Ky. 487, 9 S. W. 509, 810, 1888; Wilson v. Com. 22 634 CRIMINAL LAW. [§ 441 § 441. When unintended person is killed by mistake— Offense same as if intended party had been killed. Where A aims at B with a malicious intent to kill B, but by the same blow unintentionally strikes and kills C, this has been held by authorities of the highest rank to be murder,’ though if A’s Ky. L. Rep. 1251, 160 S. W. 400, 1901. [Me.] Smith v. State, 33 Me. 48, 54 Am. Dec. 607, 1851. [Mass.] Worthington v. State, 92 Md. 222, 56 L.R.A. 353, 84 Am. St. Rep. 506, 48 Atl. 355, 1901. [Mich.] People v. Abbott, 116 Mich. 263, 74 N. W. 529, 11 Am. Crim. Rep. 4, 1898. [Pa.] Com. v. Railing, 113 Pa. 37, 4 Atl. 459, 1886. [Wash.] State v. Power, 24 Wash. 34, 63 L.R.A. 902, 63 Pac. 1112, 1901. [Wis.] Hatch- ard v. State, 79 Wis. 357, 48 N. W. 380, 1891. 1Supra, §§ 138-143, 158, 165; 1 Hale, P. C. 379, 489, 466; 1 Hawk. P. C. chap. 13, 44; Dyer, 128; J. Kelyng, 3d ed. 157, 158, 164; Pult. de Pace 124 b; Fost. C. L. 261. [Eng.] Rex. v. Plummer, 12 Mod. 627, 1701; Rex v. Holt, 7 Car. & P. 598, 1836. [Fed.] United States v. Hart, 162 Fed. 192, 1908. [Ala.] Tidwell v. State, 70 Ala. 33, 1881; Gater v. State, 141 Ala. 10, 37 So. 692, 1904; Gallant v. State, 167 Ala. 60, 52 So. 739, 1910; Bradbury v. State, — Ala. —, 54 So. 431, 1911. [Ark.] Lacefield v. State, 34 Ark. 275, 36 Am. Rep. 8, 1878; Ringer v. State, 74 Ark. 262, 85 S. W. 410, 1905. [Cal.] People v. Suesser, 142 Cal. 354, 75 Pac. 1093, 1904; People v. Trebileox, 149 Cal. 307, 86 Pac. 684, 1906. [Colo.] Ryan v. People, 50 Colo. 99, 114 Pac. 306, 1911. [Del.] State v. Dugan, Houst. Crim. Rep. (Del.) 563, 1873; State v. Evans, 1 Marv. (Del.) 477, 41 Atl. 136, 1893; State v. Bell, 5 Penn. (Del.) 192, 62 Atl. 147, 1904. [Ga.] Durham v. State, 70 Ga. 264, 1882; Chelsey v. State, 121 Ga. 341, 49 S. E, 258, 1904; Hamilton v. State, 129 Ga. 747, 59 S. E. 803, 1907. [Ind.] Brown v. State, 147 Ind. 28, 46 N. E. 34, 1897. [Iowa] State v. Wil- liams, 122 Iowa, 115, 97 N. W. 992, 1904. [Ky.] Golliher v. Com. 2 Duv. 163, 87 Am. Dec. 493, 1875; Smith Bees v. Com. 19 Ky. L. Rep. 1073, 42 8. W. 1138, 1897; Thompkins v. Com. 28 Ky. L. Rep. 642, 90 S. W. 221, 1906. [Me.] State v. Gilman, 69 Me. 163, 31 Am. Rep. 257, 3 Am. Crim. Rep. 15, 1878. [Mo.] State v. Pay- ton, 90 Mo. 220, 2 S. W. 394, 1886; State v. Pollard, 189 Mo. 220, 40 S. W. 949, 1897; State v. Cavin, 199 Mo. 154, 97 S. W. 573, 1906; State v. Baker, 209 Mo. 444, 108 S. W. 6, 1908; State v. Sharp, 233 Mo. 269, 135 S. W. 488, 1911. [Nev.] State v. Raymond, 11 Nev. 98, 1876. (N. J.] State v. Bectsa, 71 N. J. L. 322, 58 Atl. 933, 1904. [N. Y.] Peo- ple v. Loose, 199 N. Y. 505, 90 N. E. 100, 1910. [N. C.] State v. Benton, 19 N. C. (2 Dev. & B. L.) 196, 1837; State v. Fulkerson, 61 N. C. (Phill. L.) 233, 1867; State v. Cole, 132 N. C. 1069, 44 8. E. 391, 1903. [Ohio] Callahan v. State, 21 Ohio St. 306, 1871; Wareham v. State, 25 Ohio St. 601, 1874. [Or.] State v. Brown, 7 Or. 186, 1879; State v. Johnson, 7 Or, 210, 1879. [Pa.] Com. v. Dough- erty, 7 Smith, Laws (Pa.) 695, 1807; Com. v. Johnson, 219 Pa. 174, 68 Atl. 58, 1907. [S. C.] State v. Ken- nedy, 85 S. C. 146, 67 S. E. 152, 1910. [Tex.] Angell v. State, 36 Tex. 542, 14 Am. Rep. 380, 1871; Taylor v. State, 3 Tex. App. 387, 1878; Halbert v. State, 3 Tex. App. 656, 1878; McConnell v. State, 13 Tex. App. 390, 1883; Thornton v. State, —Tex. Crim. Rep. —, 65 S. W. 1105, 1901; Sparks v. State, —Tex. Crim. Rep. —, 77 S. W. 811, 1903; Thomas v. State, 53 Tex. Crim. Rep. 272, 126 Am. St. Rep. 786, 109 S. W. 155, 1908; Holland v. State, 55 Tex. Crim. Rep. 27, 115 S. W. 48, 1908; Barnes v. State, 57 Tex. Crim. Rep. 449, 125 S. W. 39, 1909; Milo v. State, 59 Tex. Crim. Rep. 196, 127 8S. W. 1025, 1910; McCullough v. State, — Tex. Crim. Rep. —, 136 S. W. 1055, 1911. [W. Va.] State v. § 441] HOMICIDE, 635 aim at B was without malice, the offense would have been but manslaughter.? Thus A gives poison to B, intending to poison her, and B, ignorant of it, gives it to a child, who eats it and dies; this is said to be murder in A, but no offense in B; and this, though A who was present at the time endeavored to dis- suade B from giving it to the child.® Briggs, 58 W. Va. 291, 52S. E. 218, 1905. Cases of this class are held to be murder in the second degree. Infra, § 508. Conspiracy to murder — Killing another by mistake—Where two conspire to murder another and one of them kills an unintended person by mistake, the co-conspirator is guilty. Jennings v. Com. 13 Ky. L. Rep. 79, 16 S. W. 348, 1891. See Holtz v. State, 76 Wis. 99, 44 N. W. 1107, 1890. Criminal character of the act where a person shoots at one man and kills another depends upon his intention as applied to the person whom he sought to shoot, and wheth- er he is guilty of homicide, in any of its grades, is ruled by that in- tent. Ringer v. State, 74 Ark. 262, 85 S. W. 410, 1905. Killing A supposing him to be B in no way changes the liability for committing the crime. Thompkins v. Com. 28 Ky. L. Rep. 642, 90 S. W. 221, 1906; State v. Pollard, 189 Mo. 220, 40 S. W. 949, 1897. —Killing in self-defense. A be- lieving him to be B, under the set- tled belief, helt, upon reasonable grounds, that he was in danger at the hands of B. Accused will not be guilty of murder unless he was seek- ing B for the purpose of inflicting death or great bodily harm upon him. Smith v. Com. 19 Ky. L. Rep. 1073, 42 S. W. 1138, 1897. 2 Supra, §§ 157, 158, 165; Fost. C. L, 262; 1 Hawk. P. C. chap. 18, § 47; Leach, C. L. 151. [Eng.] Levett’s Case, Cro. Car. 538; Rex v. Conner, 7 Car. & P. 488, 18386. [Ark.] Scott v. State, 75 Ark. 142, 86 S. W. 1004, 1905. [Conn.] Morris v. Platt, 32 Conn. 75, 1868. [Ga.] Aaron v. State, 31 Ga. 167, 1861. [Pa.] Com. v. Dougherty, 7 Smith, Laws (Pa.) 695, So where B, a policeman, 1807. [Tenn.] Bratton v. State, 10 Humph. 103, 1849. [Tex.] Nelson v. State, 48 Tex. Crim. Rep. 274, 87 S. W. 148, 1905; McCullough v. State, — Tex. Crim. Rep. —, 136 S. W. 1055, 1911. Killing another while defending self, see Pinder v. State, 27 Fla. 370, 26 Am. St. Rep. 75, 8 So. 837, 1891. 81 Hale, P. C. 230; Reg. v. Saun- ders, 2 Plowd. 474; Rex v. Jarvis, 2 Moody & R. 40, 1837; State v. Ful- kerson, 61 N. C. (Phill. L.) 233, 1867. Supra, § 157; infra, § 471. Killing one of own party resisting an officer.—In Plummer’s Case where Plummer and seven others op- posed the King’s officers in the act of seizing wool, one of the prisoners shot off a fusee and killed one of his own party. The court held, in giving judgment upon a _ special verdict, that as the prisoner was upon an un- lawful design, if he had in pursuance thereof discharged the fusee against any of the King’s officers that came to resist him, in the prosecution of that design, intending to kill such officer, and by accident had killed one of his own accomplices, it would have been murder in him; the rea- son being that if a man out of malice to A shoot at him, but miss him and kill B, it is no less a murder than if he had killed the person intended. 12 Mod. 627; J. Kelyng, 3d ed. 157; 9 St. Tr. 112. See also Mansell’s Case, Dyer, 128; Pl. 60, 474; Cromp. 101; Gore’s Case, 9 Coke, 81; and Williams’s Case, cited in Reg. v. Mawgridge, J. Kelyng, 3d ed. 180; 9 St. Tr. 61; Manier v. State, 6 Baxt. 595, 1876. Officer firing at escaping person, killing another.—In State v. O’Niel, Houst. Crim. Rep. (Del.) 468, 1871, it was held, that where a police of- ficer with a warrant fires a pistol at B, a person attempting to escape ar- 636 CRIMINAL LAW. [§ 441 is lawfully endeavoring to arrest A, and A shoots at the police- man, and accidentally kills C, this has been held to be murder in A.* The same rule has been applied, as will be hereafter seen, to cases of killing in riots. A rioter intends to kill an enemy, but kills a friend. The killing in such case, according to some authorities, is to be treated as of the same grade as it would have been if the person killed was the one whom the de- fendant intended to kill. Even where the intent was to inflict only serious bodily harm, this rule has been enforced.’ Under the present usual statutory provisions, the offense in the last case would be murder in the second degree.® § 442. —Objections to above doctrine. The decisions just given may be too firmly settled to be shaken; but it is not to be denied that in principle they are beset by serious difficul- ties.’ The reason given is that in the killing C was substituted for B, and that the killing of C is to be treated, on the basis of this substitution, just as we would treat the killing of B.2 But, as has been argued, we cannot positively affirm that B would have been killed had not C intervened. It may be, for instance, in a ease of shooting of this class, that the very faltering which led to the mis-shot was caused by a want of resolute purpose; it may be that a great distance was taken at which to shoot at B as the result of an unwillingness to make a sure shot.2 At all events, so it is objected, we have here the spectacle of an at- tempt—an offense which has a milder punishment—visited with the severe punishment of the consummated offense, simply be- cause the defendant has accidentally committed a distinct of- fense. When A sees C approaching whom he mistakes for B, and says, “This is B, whom I will kill,” and then kills OC, thus intervening, A is guilty of murder as to C, since it was at C that he aimed.* But if he did not aim at C, but C was killed by a glance shot, then the offense is but negligent homicide as to rest on a charge of misdemeanor, 1See discussion in 10 Cent. L. J. and kills C, the killing of C is mur- pp. 57 et seq. der in the second degree. Supra, _ #See this discussed more fully in § 157; infra, § 471. Bowlby’s Wharton, Homicide, § 89; ‘Angell y. State, 84 Tex, 642, 14 Ont BY Bat, in hid ‘treatise “on Am. Rep. 380, 1871. ausalzusammenhange. 5 As to variance in respect to intent, 5State v. Smith, 2 Strobh. L. 77, gee Wharton Crim. EN §§ 149, 150. 47 Am. Dec. 589, 1847. 8See supra, §§ 138-148-157-165. 6 See infra, §§ 501 et seq. 4See supra, § 157. § 442] HOMICIDE. 637 the person killed, and an attempt as to the other person. To attempts a milder punishment is assigned, on the ethical ground that as a usual thing a consummated crime supposes greater care in preparation and a greater firmness in execution, and therefore involves a higher degree of criminality, than does an unconsummated crime. The question is not to be confounded with that of dolus alternativus, which exists when A, intending to shoot either B or C, shoots C, and which is murder, for in such case there is at once a killing and an intent to kill the per- son killed.’ Nor can we fall back, it is insisted, on a@ priori reasoning based on the defendant’s intent, and hold that because the defendant intended to kill and a killing followed, therefore the intent to do one thing and the doing another are to be fused into one malicious killing. A, for instance, manufactures shells to be exported in violation of neutrality statutes, when a shell explodes and kills C. This, on the principle here contested, is murder, and there is no way, so it is argued, on this hypothesis, of preventing an attempt to kill from coalescing with any col- lateral accidental homicide which may occur through the instru- mentality put in motion to carry out the intent. Yet it is not only possible that in the meantime the defendant may have re- pented and abandoned his intent, but the law, until the intent is consummated, always assumes such repentance and abandon- ment as possible, and hence assigns a lighter punishment to the attempt. Supposing the actual homicide to be a mere accident, to which no blame is imputable, we thus use this accident, which occurs to an object wholly collateral, to change an attempt into amurder. The defendant is convicted of killing C with malice to C of which he was not guilty, and is not prosecuted for that of which he was guilty, the attempt on B, Such are some of the points which are raised in reply to the doctrine that in cases of aberration, as they are called, the kill- ing of one person is to be tacked to the intent to kill another, so as to form one complete murder. Were the question still open we might hold it to be the true view, that so far as concerns B, the person whom A intends to kill, but does not actually kill, A is guilty only of an attempt to kill. What A’s offense is as 5 See supra, § 225; and see Rex v. Holt, 7 Car. & P. 519, 1836; Reg. v. Lallement, 6 Cox, C. C. 204, 1853. CRIMINAL LAW. [§ 442 638 to C, who is not seen by A, but who accidentally interposes, and receives a fatal wound, depends upon whether the shooting was of such a character (e. g., from the place of firing being one in which persons are accustomed to pass) as implies either mal- ice or negligence in A.® If killing C was within the range of A’s survey, when he undertook to effectuate his evil intent, the case is murder; if not, but the killing arose from the negligent use of the instrument by A, the case is manslaughter.* That the intent to kill B and the actual killing of C cannot be lumped so as to make one offense, when the death of one does not ensue, as a natural consequence, from the attack on the other, is illus- trated by the fact that even supposing B to have been killed, and the shot to have pierced him and then killed C, then the killing of B and C are distinct offenses, to be separately tried.® We may further illustrate the difficulties attending the prevail- ing doctrine by the case of an executioner, who, when intending to kill a condemned prisoner on the gallows, negligently kills a bystander. On principle, such killing ought to be manslaugh- ter. But on the rulings before us it is justifiable homicide in execution of the law. A, to take another case, in aiming, in self-defense, a blow at B, negligently kills C. According to the prevalent view, A should be acquitted,” while on principle he should be convicted of manslaughter. On the other hand, if A kills C, whom he mistakes at the time of the attack for B, this, as we have seen, is murder as to 0." § 443. Malice to a class covers malice to an individual. When an action unlawful in itself was done with deliberation, and with intention of killing, or inflicting grievous bodily harm, though the intention be not directed to any particular person, and death ensues, it will be murder at common law;' though if 6 See supra, §§ 138, 158, 165. 595, 1875. [Va.] Vaughan v. Com. 7See State v. Vines, 34 La. Ann. 1079, 4 Am. Crim. Rep. 296, 1882. 8 This view is accepted by Bram- well, J., in Reg. v. Horsey, 3 Fost. & F. 287, 1862. See infra, 445. 9[Eng.] Rex v. Champneys, 2 Moody & R. 26, 1843. [Ala.] State v. Standifer, 5 Port. (Ala.) 523, 1837. [Conn.] State v. Benham, 7 Conn. 414, 1829. [N. Y.] People v. War- ren, 1 Park. Crim. Rep, 338, 1854. [Tenn.] Manier v. State, 6 Baxt. 2 Va. Cas. 273, 1821. See also cases cited Wharton, Crim. Ev. § 587; Wharton, Crim. PI. & Pr. § 468. 10 Plummer v. State, 4 Tex. App. 310, 30 Am. Rep. 165, 1878. 11See, to this effect, Barcus v. State, 49 Miss. 17, 19 Am. Rep. 1, 1 Am. Crim. Rep. 249, 1878, supra, gg 140, 157. 1Hawk. P. C. chap. 29, § 12. [Eng.] Reg. v. Fretwell, Leigh & C. C. § 443] HOMICIDE, 639 such an original intention does not appear, which is matter of fact, and to be collected from circumstances given in evidence, and the act was done heedlessly and incautiously, it will be manslaughter, not accidental death; because the act upon which death ensued was unlawful.? Thus, if a person breaking in an unruly horse wilfully ride him among a crowd of persons, the probable danger being great and apparent, and death ensue from the viciousness of the animal, it is murder at common law.? If, also, a man recklessly and maliciously throw from a roof into a crowded street, where passengers are constantly passing and repassing, a heavy piece of timber, calculated to produce death to such as it might strike, and death ensue, the offense is murder at common law.* It is also murder to kill by firing maliciously into a crowd,’ or by maliciously putting an obstruction on a C. 443, 9 Cox, C. C, 471, 33 L. J. Mag. Cas. N. S. 128, 10 Jur. N. 8. 595, 10 L. T. N. S. 428, 12 Week. Rep. 751, 1864. [Ala.] Robinson v. State, 54 Ala. 86, 1875. [Ind.] Jackman v. State, 71 Ind. 149, 1880. [Pa.] Hop- kins v. Com. 50 Pa. 9, 88 Am. Dec. 518, 1865; Com. v. Drum, 58 Pa. 9, 1868. [Va.] Wright v. Com. 75 Va. 914, 1882. This question discussed supra, §§ 142-147, and infra, §§ 508, 509. 2Infra, § 469; 1 Russell, Crimes, 9th Am. ed. 849; Fost. C. L. 261; Lewis v. State, 96 Ala. 6, 38 Am. St. Rep. 75, 11 So. 259, 1892; Golliher v. Com. 2 Duv. 163, 87 Am. Dec. 493, 1875. 31 Hale, P. C. 476; 4 Bl. Com. 200; 1 East, P. C. 231. Infra, § 478. 4Infra, § 476. Boles v. State, 9 Smedes & M. 284, 1848; Com. v. ‘Dougherty, 7 Smith, Laws (Pa.) 695, 1807. 5 Supra, § 157, infra, §§ 469, 509. [Eng.] Reg. v. Fretwell, Leigh & C. C. ©. 443, 9 Cox, C. C. 471, 33 L. J. Mag. Cas. N. S. 128, 10 Jur. N. 8S. 595, 10 L. T. N. S. 428, 12 Week. Rep. 751, 1864. [Ky.] Golliher v. Com. 2 Duv. 163, 87 Am. Dec. 493, 1875; Brown v. Com. 91 Ky. 472, 16 S. W. 183, 1891. [Mo.] State v. Edwards, 71 Mo. 312, 1880. Malice is to be inferred in such cases, see Smith v. Com. 100 Pa. 324, 1882. Homicide by exploding powder in crowded street to rescue prisoner.— “A, for the purpose of rescuing a prisoner, explodes a barrel of gun- powder in a crowded street, and kills a number of persons, intending to explode the barrel of powder in the crowded street. A commits murder, although he may have no intention at all about the people in the street, or may hope that they will escape injury.” Reg. v. Desmond, 1868, cited by Sir J. F. Stephen, Digest, Crim. Law, (5th ed.) art. 244. On this Sir J. F. Stephen thus com- ments: “In this case Lord Chief Justice Cockburn said: ‘If a man did an act, more especially if that were an illegal act, although its im- mediate purpose might not be to take life, yet if it were such that life was necessarily endangered by it —if a man did such an act, not with the purpose of taking life, but with the knowledge or belief that life was likely to be sacrificed by it,’ that was murder. Times’ Report, April 28, 1868. It is singular that this case is noticed in Cox’s Reports only for the sake of a point about evi- dence not the least worth reporting. See 11 Cox, C. C. 146, 1868.” This case is further discussed in the London Law Times for May 20, 1882. 646 CRIMINAL LAW. [§ 443 railway track. And upon the same principle, if a man, know- ing that people are passing along the street, maliciously throw a stone likely to kill, or shoot over a house or wall with intent to do serious harm, and one is thereby slain, it is murder on account of previous malice, though not directed against any par- ticular individual; it is no excuse that the party was bent upon mischief generally.” § 444. —But where act is negligent, offense is but man- slaughter. Where, however, the injury is inflicted negligent- ly, without such recklessness as implies malice, as in negligently letting a piece of timber fall from a roof,’ or in negligently driving in the public streets,” or in negligently driving a locomo- tive engine ;* then the offense is but manslaughter. § 445. By older writers killing with intent to commit collateral felony is murder. So far as the intent to commit a collateral felony concerns the homicide of one person where the intent was to slay another, the subject has been already dis- eussed; and so far, also, as concerns homicide committed in the perpetration of arson, rape, robbery, or burglary, it will be discussed under the head of statutory homicide.? 6 Presley v. State, 59 Ala. 98, 1878; see Jackman v. State, 71 Ind. 149, 1880. 71 Hale, P. C. 475; 3 Co. Inst. 57; 1 East, P. C. 231; Boles v. State, 9 Smedes & M. 284, 1848. 1 Hull’s Case, J. Kelyng, 40, 3d ed. 1664; Rigmaidon’s Case, 1 Lewin, C. C. 180, 1833. Infra, § 476. 2 Rex v. Timmins, 7 Car. & P. 499, 1836; Rex v. Grout, 6 Car. & P. 629, 1834; Reg. v. Dalloway, 2 Cox, C. C. 2738, 1847. Infra, § 478. 3 See infra, § 473. As to negligently performing a lawful act resulting in homicide, see [Ala.] Austin v. State, 145 Ala. 37, 40 So. 989, 1906. [Conn.] State v. Campbell, 82 Conn. 671, 135 Am. St. Rep. 298, 74 Atl. 927, 18 A. & E. Ann. Cas. 236, 1910; State v. Goetz, 83 Conn. 437, 30 L.R.A.(N.S.) 458, 76 Atl. 1000, 1910. [Del.] State v. Brown, 2 Marv. (Del.) 380, 36 Atl. 458, 1896. [Fla.] Hampton v. State, 50 Fla. 55, 39 So. 421, 1905; Kent v. State, 53 Fla. 51, 43 So. 773, 1907. Independent- [Ga.] Nathan v. State, 181 Ga. 48, 61 S. E. 994, 1908; Flannigan v. State, 136 Ga. 132, 70 S. E. 1107, 1911. [Iowa] State v. Moore, 129 Towa, 514, 106 N. W. 16, 1906. [Ky.] Hunn v. Com. 143 Ky. 143, 136 8. W. 144, 1911; Ewing v. Com. 129 Ky. 237, 111 S. W. 352, 1908. [Mass] Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264, 5 Am. Crim. Rep. 391, 1884. [N. J.] State v. Young, — N. J. L. —, 56 Atl. 471, 1903. [N. ¥.] People v. Melius, 1 N. Y. Crim. Rep. 39, 1882; People v. Smith, 56 Misc. 1, 105 N. Y. Supp. 1082, 1907; People v. Scanlon, 132 App. Div. 528, 117 N. Y. Supp. 57, 1909. [S. C.] State v. Gilliam, 66 S. C. 419, 45 S. E. 6, 1908; State v. Tucker, 86 S. C. 211, 68 S. E. 523, 1910; State v. Causer, 87 S. C. 516, 70 8. E, 161, 1911; State v. Badgett, 87 8. C. 548, 70 S. E. 301, 1911. [Tex.] Gorden v. State, — Tex. Crim. Rep. —, 90 S. W. 636, 1904; Jones v. State, — Tex. Crim. Rep. —, 95 S. W. 539, 1906. lInfra, § 510. § 445] HOMICIDE, 641 ly of these points, it is declared by the old English text writers, as a general rule, that if the act on which death ensues be malum mm se, it will be murder or manslaughter, according to the cir- cumstances; if done in prosecution of a felonious intent, but death ensues against or beside the intent of the party, it will be murder; but, on the other hand, if the intent goes no further than to commit a bare trespass, it will be manslaughter. The illustration usually given is that where A shoots at the poultry of B, and, by accident, kills B himself; if A’s intent were to steal the poultry, which must be collected from circumstances, it will be murder, by reason of that felonious intent; but if it were done wantonly and without that intent, it will be merely man- slaughter.? It is true that in England the rule is not infre- quently so shaded as to bring it into harmony with the principle maintained in these pages. Thus we find that Bramwell, J., after stating in a homicide case the rule as given by the old writers, goes on to say that the law, however, is that a man is not answerable except for the natural and probable result of his own act, and announcing that unless the death was a “natural and probable result” of the felony primarily in view, the defendant could not be convicted of the murder.* It may also be confi- dently asserted that, if a man should now be tried for a homi- cide, which, though consequent on killing a tame fowl, was not only unintended by the defendant, but was in no way a “natural or probable result” of an intended larceny, there is no English or American judge who would not say that the homicide was not murder but manslaughter. Yet, nevertheless, the old common- law * rule continues to be proclaimed as unquestioned law by 2Fost. C. L. 258, 259; Plummer’s Case, 1 Hale, P. C. 466; 3 Co. Inst. 56; Kel. (8d ed.) 164; 6 St. Tr. 222; 1 Hawk. P. C. chap. 31, § 44. In Barrett’s Case, 1868, we have the rule affirmed by Cockburn, C. J., cited Stephen, Digest Crim. Law, 5th ed. art. 244; and Sir J. F. Stephen tells us that if “A shoots at a do- mestic fowl, intending to steal it, and accidentally kills B,’ this is murder. Ibid. 3 Reg. v. Horsey, 3 Fost. & F. 287, 1862. See supra, § 442. Crim. L. Vol. I.—41, 4See particularly, [Iowa] State v. Shelledy, 8 Iowa, 477, 1859; State v. Moore, 25 Iowa, 128, 95 Am. Dec. 776, 1867. [Me.] Smith v. State, 83 Me. 48, 54 Am. Dec. 607, 1851. [Mich.] Wellar v. People, 30 Mich. 16, 1 Am. Crim. Rep. 276, 1874. [N. H.] State v. McNab, 20 N. H. 160, 1848. [N. J.] State v. Cooper, 13 N. J. L. 381, 25 Am. Dec. 490, 1833; [Pa.] Com. v. Dougherty, 7 Smith, Laws (Pa.) 695, 1807. [S. C.] State v. Smith, 2 Strobh. L. 77, 47 Am. Dec. 589, 1847. 642 CRIMINAL LAW. L§ 445 courts in the United States, incompatible as it is both with logic and with humanity.’ § 446. At common law, this doctrine is unsustainable by reason. Where a legislature creates a statutory offense, the statutory definition is absolute; but when there is no statutory enactment, the doctrine that the intent to commit a felony, when collateral to an accidental homicide, constitutes murder, must be rejected for the following reasons: A man who does not intend to commit murder is held guilty of murder, an offense to which a malicious intent to take life or to do grievous bodily harm is essential. The indictment avers a malicious intent to kill the deceased, and a conviction is directed, although the case on both sides shows that there was no such intent, but that the blow was given with an intent entirely different. The only excuse to be given for this is that when all felonies were capital, it made -no difference to the defendant what was the felony he was charged with committing. But this reason, such as it is, no longer exists. Larceny and murder have assigned to them dis- tinct punishments ; and it is no longer a matter of indifference to the defendant for which he is to be tried. Nor is it a matter of indifference to juries. A jury must feel itself far more willing to convict a man of larceny than to convict him of murder sim- ply because he intended to steal a tame fowl. Of course, this assumes that the killing of the owner of the fowl was purely accidental, and that so far from it being intended, it was an act against the offender’s will. If so, a jury will revolt at con- viction ; and the testimony of the judges examined by the Eng- lish Homicide Amendment Committee shows that rather than permit such a conviction, judges who persist in holding the old rule “contrive” to find for the jury some collateral excuse for acquittal. § 447. Proper course to indict for attempt and for manslaughter. Wherever the question is still open, the true 5See Bowlby’s Wharton, Homi- cide, § 92. The English rule in this respect is founded on a mistake of the early authorities is shown by an article in the London Law Times for August 24, 1878. See, however, article in same paper for July 19, 1884, p. 219. The rule is strangely vindicated by Mr. Greaves, 1 Russell, Crimes, 740, note x, (9th Am. ed.). As illustrating the way in which the rule is practically evaded, see Reg. v. Horsey, 3 Fost. & F. 287, 1862. As bearing on the question col- laterally, see Tompson v. Dashwood, L. R. 11 Q. B. Div. 43, 1883. § 449] HOMICIDE. ; 643 course, when a homicide negligently takes place in the attempt to commit a felony, is to indict the defendant for an attempt to commit the felony, in one indictment, and for manslaughter in another indictment. Two offenses have been committed by him. He must be indicted for them separately. A part of one cannot be broken off and joined to a part broken off from the other, so as to make a new offense. No such new offense can be consti- tuted; for intending to do one thing and then doing another cannot make up one intentional crime. But the negligent homi- cide, which is manslaughter, may be properly prosecuted in one indictment, and the attempt to commit the felony in another. To join these in one indictment is not permissible; and a for- trori it is not Pertitissible to join pieces of the two so as to make up one offense.* / § 448. Unintentional homicide incident to unlawful act is manslaughter. None of the difficulties which beset the last topic attend that which we are now about to notice. Manslaugh- ter necessarily excludes the hypothesis of deliberate malicious killing, and includes all cases where killing takes place in execu- tion of an unlawful design not involving such deliberate mal- icious intent to kill... We may, therefore, properly hold that where a homicide is unintentionally committed when in the per- formance of an unlawful act, the offense is manslaughter. Un- der this head the following cases may be noticed: § 449. —So in respect to assault. happening from a mere assault is manslaughter." 1See on this topic supra, §§ 135- 143. 1 As to homicide in the commission of, or in an attempt to commit, another offense, see [Ark.] Crenshaw v. State, 70 Ark. 613, 66 S. W. 196, 1902. [Ind.] Siberry v. State, 149 Ind. 684, 39 N. E. 986, 47 N. HE. 458, 1895. [Ky.] Com. v. Couch, 32 Ky. L. Rep. 638, 16 L.R.A.(N.S.) 327, 106 S. W. 830, ‘1908; Ewing v. Com. 129 Ky. 237, 111 S. W. 352, 1908. [Mass.] Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109, 1877. [Tex.] Hol- land v. State, 55 Tex. Crim. Rep. 27, 115 S. W. 48, 1908. For earlier cases, see 26 Century Dig. col. 144, § 85. 1As to unintentional homicide re- Death unintentionally Thus, where sulting from assault or in mutual combat, see [Ark.] Gilmore v. State, 92 Ark. 205, 122 S. W. 493, 1909. [Del.] State v. Adams, 6 Penn. (Del.) 178, 65 Atl. 510, 1906; State v. Morahan, 7 Penn. (Del.) 494, 77 At]. 488, 1895. [Ga.] Tate v. State, 46 Ga. 148, 1872; Giles v. State, 126 Ga. 549, 55 S. E. 405, 1906; Leonard v. State, 188 Ga. 485, 66 S. E. 251, 1909; Sapp v. State, 2 Ga. App. 449, 58 S. E. 667, 1907; Lee v. State, 2 Ga. App. 481, 58 S. E. 676, 1907; Johnson v. State, 4 Ga. App. 59, 60 S. E, 818, 1908. [Ky.] Ewing v. Com. 129 Ky. 237, 111 S. W. 352, 1908. [Miss.] McMaster v. State, — Miss. —, 29 So. 522, 1901. [Mo.] State v. Davidson, 95 Mo. 155, 8 S. CRIMINAL LAW. _ [§ 449 644 the defendant violently struck A’s horse, which started and killed B, the defendant was held liable for the manslaughter of B.? So where the defendant, having the right to the possession of a gun, which gun he knew to be loaded, carelessly attempted to snatch it from the hands of the deceased, and during the process the gun was discharged and killed the deceased, this was held manslaughter, and rightcully, for to seize carelessly a dan- gerous weapon from another is an unlawful act.® § 450. —So in respect to miscarriage. Supposing a mis- carriage’ be attempted in a way not to inflict serious injury on the mother, and the mother dies from negligence in the opera- tion, there being no intent to kill, or to inflict serious injury, and no likelihood of such result, the offense, on the reasoning above given, is but manslaughter.” W. 418, 1888; Davis v. Modern Woodmen, 98 Mo. App. 713, 73 S. W. 923, 1903; State v. Gordon, 191 Mo. 114, 109 Am. St. Rep. 790, 89 8S. W. 1025, 1905. [Neb.] Ford v. State, 71 Neb. 246, 115 Am. St. Rep. 591, 98 N. W. 807, 1904. [N. C.] State v. Hall, 132 N. C. 1094, 44 S. E. 553, 1903; State v. Stitt, 146 N. C. 643, 17 L.R.A.(N.S.) 308, 61 S. E. 566, 1908; State v. Limerick, 146 N. C. 649, 61 S. E. 568, 1908; State v. Quick, 150 N. C. 820, 64 S. E. 168, 1909. [Okla.] Wood v. State, 3 Okla. Crim. Rep. 553, 107 Pac. 937, 1910. [Tex.] Miller v. State, — Tex. Crim. Rep. —, 38 S. W. 791, 1897; Carter v. State, — Tex. Crim. Rep. —, 40 S. W. 498, 1897; Mitchell v. State, 38 Tex. Crim. Rep, 170, 41 S. W. 816, 1897; Stringfellow v. State, 42 Tex. Crim. Rep. 588, 61 S. W. 719, 1901; Lax v. State, — Tex. Crim. Rep. —, 65 S. W. 88, 1901; Bice v. State, 55 Tex. Crim. Rep. 529, 117 8S. W. 163, 1909; Anthony v. State, — Tex. Crim. Rep. —, 136 8S. W. 1097, 1911. For earlier cases see 26 Century Dig. col. 145, §§ 86, 87. 21 Hale, P. C. 475; 1 Hawk. P. C. chap. 29, § 11; chap. 18, § 44. Supra, § 209; infra, § 811. 8 Reg. v. Archer, 1 Fost. & F. 351, 1837. 1 As to death produced in abortion It is otherwise when the and miscarriage, see, generally, [Cal.] Huntington v. Superior Ct. 5 Cal. App. 288, 90 Pac. 141, 1907. [Ill] Cook v. People, 177 Ill. 146, 52 N. E. 278, 1898. [Ky.] Wilson v. Com, 22 Ky. L. Rep. 1251, 60 S. W. 400, 1901; Peoples v. Com. 87 Ky. 487, 9 S. W. 509, 810, 1888. [Md.] Worthington v. State, 92 Md. 222, 56 L.R.A. 353, 84 Am. St. Rep. 506, 48 Atl 355, 1901. [Mich.] People v. Abbott, 116 Mich. 263, 74 N. W. 529, 11 Am. Crim. Rep. 4, 1898. [Miss.] State v. Prude, 76 Miss. 543, 24 So. 871, 11 Am. Crim. Rep. 466, 1899. [Mo.] State v. Fitzporter, 93 Mo. 390, 6 S. W. 223, 1887. [Or.] State v. Atwood, 54 Or. 526, 102 Pac. 295, 104 Pac. 195, 21 A. & E. Ann. Cas. 516, 1909. [Wash.] State v. Power, 24 Wash. 34, 63 L.R.A. 902, 68 Pac. 1112, 1901. For former cases on this subject, see 26 Century Dig. col. 149, § 89. See, also monographic notes 90 Am. St. Rep. 571-583; 63 L.R.A. 902-920. 2[Ill.] Yundt v. People, 65 Ill. 372, 1872. See [Ind.] Willey v. State, 46 Ind. 368, 1864. [Mich.] People v. Olmstead, 30 Mich. 431, 1 Am. Crim. Rep. 301, 1874. [Or.] State v. Glass, 5 Or. 78, 1873. As to Massachusetts statute, see Com. v. Brown, 121 Mass. 69, 1876; Com. v. Blair, 123 Mass, 242, 1877, 126 Mass. 40, 1878. § 453] HOMICIDE. 645 intent is to seriously injure the mother, or the act is likely seri- ously to injure her. In this case her killing is murder.® § 451. —Soasto riots. Homicide in riots, when there is no intent to kill or to inflict serious bodily harm, is in like manner manslaughter.’ § 452. —So as to illicit sexual intercourse. The same rule was applied, as has been seen, where a man, in order to have sexual intercourse with a girl, used artificial means, with her . . . i consent, to make such intercourse practicable, in conséquence of which she died.? § 453. —So as to suicide. It has also been held that who- ever, in attempting to commit suicide, unintentionally kills an- other, is guilty of manslaughter." 8 See supra, § 440, infra, § 577. As to Illinois statute to this ef- fect, see Beasley v. People, 89 Ill. 571, 1878. 1See infra, § 521. As to homicide committed in af- fray or riot, see [Cal.] People v. Denomme, — Cal. —, 56 Pac. 98, 1899. [Ky.] Delaney v. Com. 18 Ky. L. Rep. 212, 35 S. W. 1037, 1896; Reynolds v. Com. 26 Ky. L. Rep. 540, 82 S. W. 233, (reversed on re- hearing in 26 Ky. L. Rep. 949, 82 S. W. 978), 1904. [N. Y.] People v. Tuhi, 2 Wheeler, C. C. 242, 1820. [Wis.] Hayes v. State, 112 Wis. 304, 87 N. W. 1076, 1901. Rioter not guilty of murder or manslaughter by reason of the acci- dental killing of an innocent person by those engaged in suppressing the riot, notwithstanding the general principle that all persons engaged in the commission of an unlawful act are legally responsible for all the consequences which may naturally or necessarily flow from it. The criminal responsibility for acts of others is subject to the reasonable limitation that the particular act of one of a party, for which his as- sociates and confederates are to be held liable, must be shown to have been done for the furtherance of or in prosecution of, the one object and design for which they combine to- gether. The killing of an innocent person by a peace officer endeavor- ing to suppress the riot does not come within this limitation. Com. v. Campbell, 7 Allen, 541, 83 Am. Dec. 705, 1863. 1State v. Center, 35 Vt. 378, 1862, See supra, §§ 439, 440. 1Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109, 1877. Suicide is criminal alike with homicide in criminal law, and the same rule is applied in the case of homicide in attempting suicide as is applied where A intending to kill B kills C. See Barcus v. State, 49 Miss. 17, 19 Am. Rep. 1, 1 Am. Crim. Rep. 249, 1872; Angell v. State, 36 Tex. 542, 14 Am. Rep. 380, 1872. See, also, note in 19 Am. Rep. 2. Suicide and attempt to commit.— “Suicide,” said Gray, C. J., in Com. v. Mink, supra, “being un- lawful and criminal as malum in se, any attempt to commit it is likewise unlawful and_ criminal. Every one has the same right and duty to interpose and save a life from being so unlawfully and crimi- nally taken, that he would have to defeat an attempt unlawfully to take the life of a third person. Fair- fax, J., in 22 KE. 4, 45, pl. 10; Marler v. Ayliffe, Cro. Jac. 134, 1685; 2 Rolle, Abr. 559; 1 Hawk. P. C. chap. 60, § 23.” Homicide in attempting to do an unlawful act.—“And it is not dis- puted that any person who, in doing or attempting to do an act which is 646 CRIMINAL LAW. [§ 454 III. Neeuigenr Homicipe. § 454. Omission in discharge of a lawful duty indict- able. We have already seen’ that an omission is not the basis of penal action unless it constitutes a defect in the discharge of a responsibility specially imposed.? And the converse is true, that when a lawful duty is imposed upon a party, then an omis- sion on his part in the discharge of such duty, when acting in- juriously on the party to whom the duty is owed, is an indict- able offense.® § 455. Omission to perform acts of mercy not indict- able. As, in conformity with the definition just stated, the re- sponsibility must be one specially imposed on the defendant, the omission to perform acts of mercy, even though death to another result from such omission, is not within the rule. One man, for instance, may see another starving, and may be able, without the least inconvenience to himself, to bring food to the sufferer, and thus save the latter’s life; but the omission to do this is not indictable, unless there be a special responsibility to this effect imposed on the defendant. Thus it has even been ruled that where the defendant permits an idiot brother, resid- ing in his house, to die from want of food, the defendant, on this evidence alone, is not penally responsible, he not having undertaken the special support of the deceased ;* and the same unlawful and criminal, kills another, _3See this discussed in Wharton, though not intending his death, is guilty of criminal homicide, and, at the least, of manslaughter.” Ibid. See infra, § 580. 1Supra, § 167. 2[Fed.] United States v. Warner, 4 Mclean, 463, Fed. Cas. No. 16,643, 1848; United States v. Knowles, 4 Sawy. 517, Fed. Cas. No. 15,540, 1864. [Ga.] Flannigan v. State, 136 Ga. 132, 70 8. E. 1107, 1911. [N. Y.] People v. Smith, 56 Misc. 1, 105 N. Y. Supp. 1082, 1907. [Mont.] Ter- ritory v. Manton, 8 Mont. 95, 19 Pac. 387, 8 Am. Crim. Rep. 521, 1888. Malperformance or nonperform- ance of a duty does not render one criminally responsible, unless the duty was a plain one which he was bound by law or contract to perform personally. People v. Smith, 56 Misc. 1, 105 N. Y. Supp. 1082, 1907. Homicide, § 73, in notes. For negligence generally, see supra, §§ 162, 167. Compare: United States v. Knowles, 4 Sawy. 517, Fed. Cas. No. 15,540, 1877; Chrystal v. Com. 9 Bush, 669, 1872; Robins v. State, 9 Tex. App. 666, 671, 1880, and cases in following sections. An omission to discharge a duty as to drainage may be indictable. Rex v. Wharton, 12 Mod. 510. 1Supra, § 171. See in Burrell v. State, 18 Tex. 713, 1857; Con- naughty v. State, 1 Wis. 159, 60 Am. Dec. 370, 1853. 2Rex v. Smith, 2 Car. & P. 449, 1826. It is otherwise if the control be exclusive. Reg. v. Porter, Leigh & ©. ©. C. 394, 9 Cox, C. C. 449, 38 L. § 456] HOMICIDE. 647 reasoning has been applied to a mother who neglects to supply the wants of a lunatic illegitimate child.* But the law would be otherwise if it should appear that the defendant, no matter what was his relation to the deceased, had so secluded the de- ceased that he could be relieved by no one else.* Sir J. F. Stephen states the rule as follows: “Every person un- der a legal duty, whether by contract or by law, or by the act of taking charge, wrongfully or otherwise, of another person, to provide the necessaries of life for such other person, is criminal- ly responsible if death is caused by the neglect of that duty, and if the person to whom the duty is owing, is, from age, health, insanity, or any other cause, unable to withdraw himself from the control of the person from whom it is due; but not other- wise.” ® § 456. Otherwise as to lawful duties—Parent and child. By the distinction before us we are able to support the decisions making the father or the master penally responsible for omission to supply food and clothing to child or apprentice ;* but holding J. Mag. Cas. N. 8. 126,10 L. T. N.S. 306, 10 Jur. N. S. 547, 12 Week. Rep. 718, 1864; supra, §§ 193-211. See also State v. Preslar, 48 N. C. (3 Jones, L.) 421, 1885. 8 Reg. v. Pelham, 8 Q. B. 959, 15 L. J. Mag. Cas. N. S. 105, 10 Jur. 659, 2 Cox, C. C. 17, 1846. 4Reg. v. Smith, Leigh & C. C. C. 607, 10 Cox, C. C. 82, 34 L. J. Mag. Cas. N. S. 153, 11 Jur. N. 8. 695, 12 L. T. N. S. 609, 18 Week. Rep. 816, 1865; supra, §§ 193-211; infra, §§ 574, 1880. 5 Person under legal duty—Liabili- ty for neglect causing death.—Digest Crim. Law, 5th ed. art. 234. He gives the following illustra- tions: (1) A neglects to provide proper food and lodging for her servant B (who is of weak mind, but twenty- three years old); B’s life is short- ened by such neglect. A is crimi- nally responsible if B was in such an enfeebled state of body and mind as to be helpless and unable to take eare of herself, or was under the dominion and restraint of A, and un- able to withdraw herself from A’s control; otherwise, not. Reg. v. Smith, Leigh & C. C. C. 607, 34 L. J. Mag. Cas. N. S. 153, 11 Jur. N. S. 695, 12 L. T. N. S. 609, 18 Week. Rep. 816, 10 Cox, C. C. 17, 1865. (2) B, a girl of eighteen, comes from service to the house of her mother, A, and is there confined of a, bastard child. A does not provide a midwife, in consequence of which B dies. A is not criminally responsi- ble for this omission. Reg. v. Shep- herd, Leigh & C. C. C. 147, 31 L. J. Mag. Cas. N. S. 102, 8 Jur. N.S. 418, 5 L. T. N. S. 687, 10 Week. Rep. 297, 9 Cox, C. C. 123, 1862. (3) A persuades B, an aged and infirm woman, to live in his house, and causes her death by neglecting to supply her properly with food and fire, she being incapable of provid- ing for herself from age and in- firmity. A is criminally responsible for his neglect. Reg. v. Marriott, 8 Car. & P. 425, 1838. See Reg. v. Wagstaffe, 10 Cox, C. C. 530, 1868; Reg. v. Downes, L. R. 1 Q. B. Div. 25, 45 L. J. Mag. Cas. N. S. 8, 33 L. T. N. 8. 675, 25 Week. Rep. 278, 13 Cox, C. C. 111, 1877. 1 Reg. v. Waters, Temple & M. 57, 1 Den. C. C. 356, 1848; Reg. v. CRIMINAL LAW. [§ 456 648 that the mother, unless she assumes such exclusive charge, is not so responsible.” Thus, an unmarried woman, eighteen years of age, who usually supported herself by her own labor, being about to be confined, returned to the house of her stepfather and her mother. She was taken in labor (the stepfather being absent at his work), and in consequence of the mother’s neglect to use ordinary diligence in procuring the assistance of a midwife, the daughter died in her confinement. There was no proof that the mother had any means of paying for the services of a mid- wife. It was held that no legal duty was cast upon the mother to procure a midwife, and therefore that she could not be con- victed of the manslaughter of her daughter.® When food is wilfully withheld from a helpless person, under the defendant’s special charge, with the intention to kill, it should be remembered that the offense is murder.* And the same rule applies where a child is unjustifiably exposed to the weather.® § 457. —-Husband and wife. A husband is responsible for his wife’s death caused by her want of necessaries; though to support such an indictment it should appear that the wife was in such a helpless state as to be unable to appeal elsewhere for aid, and that the death was the natural and likely consequence of the husband’s withdrawal of aid.1_ And so a husband is in- dictable for homicide, who sees without interference his wife take a poison he knows to be deadly, the case being one in which his interference would have prevented the wrong.” Edwards, 8 Car. & P. 611, 1838; Reg. v. Middleship, 5 Cox, C. C. 275; Reg. v. Squire, 1 Russell, Crimes, 9th: Am. ed. 677, 1799; Reg. v. Lowe, 4 Cox, C. C. 449, 3 Car. & K. 123; Reg. v. Ryland, L. R. 1 C. C. 99, 10 Cox, C. C. 569, 37 L. J. Mag. Cas. N. S. 10, 17 L. T. N. S. 219, 16 Week. Rep. 280, 1 Bennett & H. Lead. Cas. 49; State v. Hoit, 23 N. H. 355, 1851. As to parents’ duty to child, see supra, § 198; infra, §§ 484, 574, 1880-1884. 2 Rex v. Saunders, 7 Car. & P. 277; Reg. v. Edwards, 8 Car. & P. 611, 1838; Reg. v. Shepherd, 9 Cox, C. C. 123, Leigh & C. C. C. 147, 31 L. J. Mag. Cas. N. 8. 102, 8 Jur. N. S. 418,5 L. T. N. 8. 687, 10 Week. Rep. 297, 1862; infra, §§ 484, et seq. 3 Reg. v. Shepherd, 9 Cox, C. C. 123, Leigh & C. C. C. 147, 31 L. J. Mag. Cas. N. 8. 102, 8 Jur. N. S. 418,5 L. T. N.S. 687, 10 Week. Rep. 297, 1862; infra, § 484. 4 Reg. v. Conde, 10 Cox, C. C. 547, 1867; Reg. v. Bubb, 4 Cox, C. C. 457, 1850. Infra, §§ 484, 1880-1884. 5Infra, § 1880; Griffith v. State, 90 Ala. 583, 8 So. 812, 1891. As to neglect of child by mother in birth, see infra, § 572. lInfra, §§ 483, 1880; Reg. v. Plummer, 1 Car. & K. 600, 8 Jur. 921, 1844; State v. Preslar, 48 N. C. (3 Jones, L.) 421, 1855. 2 Paine’s Trial, infra, § 1880, foot- note 1, § 460] HOMICIDE. 649 § 458. —Keeper of jails, etc. The keeper of an asylum or prison, who undertakes to the exclusion of others, to take care of a pauper, or lunatic, or prisoner, is penally responsible for the death of such pauper, lunatic, or prisoner, naturally resulting from the defendant’s reckless neglect. And a person who accepts the guardianship of another is bound adequately to discharge such guardianship,” and is indictable for death caused by his reckless neglect.* § 459. —Incapacity a defense. In cases, however, where the party charged is unable to supply the necessary succor, he ceases to be responsible.’ But this responsibility is not devest- ed, in countries where poorhouses exist, by poverty: for in such cases the person owing the duty is bound to report the case to the public authorities for their relief.? And in an indictment against a parent for neglecting to provide sufficient food and clothing for a child of tender years, for whom he is bound by law to provide, it is not necessary to aver that the parent was, at the time of the alleged offense, of sufficient ability to perform the duty so imposed upon him.* § 460. —Capacity on part of person neglected is a de- fense. A parent is not indictable for the death by starvation of a child competent to assist itself,’ unless the parent in some lInfra, §§ 459, 1907. See Rex v. Huggins, 2 Strange, 882, 2 Ld. Raym. 1574, 1796; Rex v. Treeve, 2 East PC. 821, 1780; Reg. v. Barrett, 2 Car. & K. 343, 4 Mor. Min. Rep. 171, 1846; Reg. v. Porter, Leigh & C.C.C. 394, 9 Cox, C. C. 449, 33 L. J. Mag. Cas. N. S. 126, 10 Jur. N. 8. 547, 10 L. T. N. S. 806, 12 Week. Rep. 718, 1864; Reg. v. Pelham, 8 Q. B. 959, 15 L. J. Mag. Cas. N. S. 105, 10 Jur. 659, 2 Cox, C. C. 17, 1846; 1 Whar- ton & S. Med. Jur. § 242. 2See Reg. v. Bubb, 4 Cox, C. C. 455, 1850. 3 Reg. v. Nicholls, 13 Cox, C. C. 75, 1874. 1Reg. v. Hogan, 5 Eng. L. & oi Rep. 553, 2 Den. C. C. 277, 5 Cox, C C. 255, 1851; Rex v. Saunders, 7 Car. & P. 277, 1836; Reg. v. Phillpot, 20 Eng. L. & Eq. Rep. 591, 6 Cox, C. C. 140, Dears. C. C. 179, 22 L. J. Mag. Cas. N. 8. 113, 17 Jur. 399, 1 Week. Rep. 314, 1853; Reg. v. Vann, 8 Eng. L. & Eq. Rep. 596, 2 Den. C. C. 325, Temple & M. 632, 21 L. J. Mag. Cas. N. 8. 39, 15 Jur. 1090, 5 Cox. C. C. 379, 1851. See infra, §§ 484, et seq. 2 Reg. v. Mabbett, 5 Cox, C. C. 339, 1851; Reg. v. Chandler, Dears. C. C. 458, 3 C. L. R. 680, 24 L. J. Mag. Cas. N. S. 109, 1 Jur. N. S. 429, 3 Week. Rep. 404, 6 Cox, C. C. 519, 1856; though see Reg. v. Shepherd, Leigh & C. C. C. 147, 9 Cox, C. C. 123, 31 L. J. Mag. Cas. N. S. 102, 8 Jur. N.S. 418, 5 L. T. N. S. 687, 10 Week. Rep. 297, 1862. See infra, §§ 484, et seq. 8 Reg. v. Ryland, L. R. 1 C. C. 99, . 10 Cox, C. C. 569, 37 L. J. Mag. Cas. N.S. 10,17 L. T. N.S. 219, 16 Week. Rep. 280, 1867. 1 Rex v. Friend, Russ. & R. C. C. 20, 1802; Reg. v. Shepherd, 9 Cox, C. C. 123, Leigh & C. Cc. ©. 147, 31 LJ. CRIMINAL LAW. [§ 460 650 way shut the child off from obtaining assistance ;* nor a master under like conditions for the death of a servant.® § 461. —Conscientious opinion as to duty, when a de- fense. Where from a conscientious conviction that God would heal the sick, and not from any intention to avoid the perform- ance of their duty, the parents of a sick child refused to call in medical assistance, though well able to do so, and the child consequently died, this was held at common law not culpable homicide,’ though otherwise under statute. And even under statute the death, in order to convict, must be imputable to the neglect.® § 462. —Engineers and other officers liable for omis- sion. When we come to omissions by those in charge of ma- chinery, ships, and railways, the question arises, Was the de- fendant specially charged with a particular office? Did injury to another ensue as a regular and usual consequence from his omission? If so, the defendant is to be held penally responsi- ble.? Hence such responsibility has been held to attach where an engineer leaves a steam engine in charge of an incompetent person;* where the officers of a vessel omit to keep a proper lookout; * where a pilot omits to make himself properly under- Mag. Cas. N. S. 102, 8 Jur. N. S. 418, 5 L. T. N.S. 687, 10 Week. Rep. 297, 1862. 2Reg. v. Waters, Temple & M. 57, 1 Den. C. C. 356, 2 Car. & K. 864, 18 L. J. Mag. Cas. N. S. 58, 13 Jur. 133, 3 Cox, C. C. 300, 1849; supra, § 198; infra § 587. 3 Anonymous 5 Cox, C. C. 279, 1851; Reg. v. Smith, 8 Car. & P. 153, 333, 1837; Reg. v. Smith, Leigh & C. C. C. 607, 10 Cox, C. C. 82, 34 L. J. Mag. Cas. N. S. 153, 11 Jur. N. 8. 695, 12 L. T. N. S. 608, 18 Week. Rep. 816, 1865; infra, § 485; though see Rex v. Ridley, 2 Campb. 650. 1Reg. v. Wagstaffe, 10 Cox, C. C. 530, 1868; Hines’s Trial, cited in Wharton’s Homicide, § 131, 1874. See supra, § 198. And see Albricht v. State, 6 Wis. 74, 1857; infra, §§ 1880, et seq. 2Reg. v. Downes, L. R. 1 Q. B. Div. 25, 13 Cox, C. ©. 111, 45 L. J. Mag. Cas. N.S. 8, 33 L. T. N.S. 675, 25 Week. Rep. 278, 1875. 3 Reg. v. Morby, L. R. 8 Q. B. Div. 571; 15 Cox, C. C. 35, 51 L. J. Mag. Cas. N. S. 85, 30 Week. Rep. 618, 46 J. P. 422, 1882, 46 L. T. N. S. 288. See report in 14 Cent. L. J. 421, for June 2, 1882. 1Supra, § 172; Reg. v. Hughes, Dears. & B. C. C. 248, 26 L. J. Mag. Cas. N. 8. 202, 3 Jur. N. S. 696, 5 Week. Rep. 732, 7 Cox, C. C. 301, 4 Mor. Min. Rep. 182, 1857; Reg. v. Haines, 2 Car. & KX. 368, 4 Mor. Min. Rep. 174, 367, 1847; Reg. v. Lowe, 4 Cox, C. C. 449, 3 Car. & K. 123, 4 Mor. Min. Rep. 180, 1850; and see cases cited infra, §§ 468, 494, 1908; and State v. Young, — N. J. L. —, 56 Atl. 471, 1903. 2See supra, §§ 193-211; Reg. v. Lowe, 4 Cox, C. C. 449, 3 Car. & K. 123, 4 Mor. Min. Rep. 180, 1850. Merely to leave a machine at rest does not per se confer responsibility. Hilton’s Case, 2 Lewin, C. C. 214. But see infra, § 495, for criticism. 8 Reg. v. Lowe, 4 Cox, C. C. 449, 3 Car. & K. 123, 4 Mor. Min. Rep. 180, 1850; Reg. v. Spence, 1 Cox, C. C. § 463] HOMICIDE. 651 stood by a foreign helmsman; * where the officer in charge omits to ventilate a mine;° where a railway tender omits to give the proper signal; ® where an iron founder, employed to supply a cannon for a public celebration, instead of recasting a piece that had burst, fills up the crevice with lead; 7 where a mechanic, em- ployed for the purpose in a colliery, omits to plank up a shaft; ° where a switch tender omits properly to turn a switch,® and where a conductor of a street car, whose duty it is to look out and to stop the car if it is likely to do damage, neglects to keep a proper lookout. And the same liability attaches to the omission of the captain of a vessel to stop or lower boats so as to save the life of a seaman falling from a ship. But, as has been seen, the duty of the defendant which he thus fails to discharge must be one to which he is specifically subject.” A stranger who sees that unless a railway switch is turned or the ear stopped an accident may ensue, is not indictable for not turning the switch or stopping the car.” § 463. —So of persons employed to give notice of danger. The test as to giving warning of danger is, is such notice part of an express duty with which the defendant is spe- cifically charged? If so, he is responsible for injury which is the regular and natural result of his omission: but if not so bound, he is not so responsible.t A man, for instance, working 352, 1846, modifying Rex v. Allen, 7 Car. & P. 153, 1835; and Rex v. Green, 7 Car. & P. 156. 4Reg. v. Spence, 1 Cox, C. C. 352, 1846. 5 Reg. v. Haines, 2 Car. & K. 368, 4 Mor. Min. Rep. 174, 1847. Infra, § 485. 6 Reg. v. Pargeter, 3 Cox, C. C. 191, 1848. 7 Rex v. Carr, 8 Car. & P. 163, note, 1837, cited supra, § 195; infra, § 494. 8 Reg. v. Hughes, 7 Cox, C. C. 301, 1857. 9State v. O’Brien, 32 N. J. L. 169, 1865. See Reg. v. Pardenton, 6 Cox, C. C. 247, 1853. Infra, § 494. 10 Com. v. Metropolitan R. Co. 107 Mass. 236, 1871. As to negligence of railroad sub- alterns, see Reg. v. Ledger, 2 Fost. & F. 857, 1862; Reg. v. Trainer, 4 Fost. & F. 105, 1864; Reg. v. Smith, 11 Cox, C. C. 210, 1869; Reg. v. Birchall, 4 Fost. & F. 1087, 1866; Reg. v. Gray, 4 Fost. & F. 1098, 1865. 11 United States v. Knowles, 4 Sawy. 517, Fed. Cas. No. 15,540, 1864. 12 Reg. v. Gray, 4 Fost. & F. 1098, 1865; Reg. v. Barrett, 2 Car. & K. 343, 4 Mor. Min. Rep. 171, 1846. 183 See Wharton, Homicide, § 80. 1Reg. v. Smith, 11 Cox, C. C. 210, 1869. Air headings in colliery.—It is the duty of A to put up air headings in a colliery where they are required. It is the duty of B to give A notice where an air heading is required. But A has means, apart from B’s report, of knowing whether such air headings are required or not. A omits to put up an air heading. B omits to give A notice that one is wanted. An explosion follows, and 652 CRIMINAL LAW. [§ 463 with snow or shingles on a roof, may throw such snow or shingles on a street, if he give proper notice to the passersby, and he is indictable for injury accruing from failure to give notice? The reason is that, from the very nature of the work in which he is engaged, such warning can only be accurately given by himself. A stranger, on the other hand, who sees the snow or timber about to fall, is not so indictable, because on him rests no special responsibility. By the same process may we solve other questions which not unfrequently arise. A railway subal- tern neglects to give the proper signal, and a collision results; and here, if the subaltern in question was specially charged with the duty of signalling, he is criminally responsible; other- wise not.2 A lighthouse keeper permits his light to go out and a vessel is consequently wrecked. Is he penally responsi- ble? Certainly so, if he is specially charged with the office of lighthouse keeper at that point, and if this is the kind of light on which seamen depend for guidance. But supposing a number of persons residing on the shore are in the habit of keeping lights in their windows, the omission of one of these persons to light his windows, from which serious mischief en- sues, would not be indictable. The same distinction may be applied to parties employed to give fire alarms.* In such cases, also, the party employed to give notice is not indictable for the omission when he had no knowledge of the danger, such want of knowledge not being imputable to his negligence.® § 464. No indictment lies for failure in discretionary duty. If the duty is one merely discretionary, no indictment lies for its nonperformance. Hence, trustees having power to repair roads are not criminally responsible for the death of a person resulting from an omission on their part to repair.” C is killed. Both A and B have killed C. Reg. v. Haines, 2 Car. & K. legem non incurrit, in metallum damnatur.” 368, 4 Mor. Min. Rep. 174, 1847, as cited Stephen Digest Crim. Law, 5th ed. art. 241. 2 Archbold. Crim. Pl. 9th ed. 9; 3 Co. Inst. 70; Fost. C. L. 263. So, also, the case in Pauli Rec. Sent. v. 23,§ 12. “Si putator ex arbore, cum ramum dejiceret, non proclamaverit, ut vitaretur, atque ita praeteriens ejusdem ictu homo perierit, etsi in 8 Reg. v. Pargeter, 3 Cox, C. C. 191, 1848; Reg. v. Spence, 1 Cox, C. C. 352, 1846; Reg. v. Benge, 4 Fost. & F. 504, 1865. Infra, §§ 473, 474, 1907. 4See Wharton, Homicide, § 81. 5 Com. v. Hartwell, 128 Mass. 415, 35 Am. Rep. 391, 1880. 1Reg. v. Pocock, 17 Q. B. 34, 5 Cox, C. C. 172, 1851, See supra, § § 465] HOMICIDE. 653 § 465. There must be a causal connection between the negligence and the injury. The distinction in this respect between a condition and a cause has been already discussed.’ A condition is a prior act without which a subsequent act can- not exist. A sells to B an explosive oil, which afterward, from omission on B’s part to take due care, explodes. The sale from A to B is a condition of the subsequent explosion, but A is not the cause of the explosion, if it be shown that the oil when sold was in the condition in which oils of the same class are regularly brought to market. On the other hand, if the oil was not in such condition, but was of such a character that it would explode unless precautions unusual and unnecessary in regular business were taken by the purchaser, then A by his misconduct in sell- ing the oil in such a state is the cause of the explosion, and is penally responsible for its results. So the city of B dis- tributes unwholesome water which it obtains from C under a contract made with the latter. C is the condition of the dis- tribution, but he is not the cause, unless the water which he supplied the city was unwholesome at the time of the supply.? A husband and a wife, to take another illustration, disagree, and she subsequently, when he has left her, wanders from the house and perishes in the woods. Here the disagreement may be the condition of the wife’s death, but not its cause, if she leaves the house of her free will and not paralyzed by terror produced by his violence.® A physician acts negligently in the treatment of a wound, and as a result of such negligence the patient dies. The person wounding is responsible for the death, if the physician’s negli- gence was such as is ordinarily incidental to medical practice.* 195, for Sir J. F. Stephen’s summary of this case. And see distinction taken, supra, § 167. 1See supra, §§ 167, 194 et seq.; and see also Reg. v. Pelham, 8 Q. B. 959, 15 L. J. Mag. Cas. N. 8. 105, 10 Jur. 659, 2 Cox, C. C. 17, 1846. 2Stein v. State, 37 Ala. 123, 1864, supra, §§ 194 et seq. 8 State v. Preslar, 48 N. C. (3 Jones, L.) 421, 1855; supra, § 459; and see as to causal relation supra, §§ 193-211. 4Supra, § 206. [Eng.] Rew’s Case, J. Kelyng, 26; Reg. v. Holland, 2 Moody & R. 351. [Ala.] McDaniel v. State, 76 Ala. 1, 1884. [Conn.] State v. Bantley, 44 Conn. 537, 26 Am. Rep. 486, 1877. [Iowa] Collins v. Council Bluffs, 32 Iowa, 324, 7 Am. Rep. 200, 1871; State v. Morphy, 33 Iowa, 270, 11 Am. Rep. 122, 1871. [Mass.] Com. v. M’Pike, 3 Cush. 181, 50 Am. Dec. 727, 1849; Com. v. Hackett, 2 Allen, 136, 1861. [N.Y.] Sauter v. New York C. & H. R. R. Co. 66 N. Y. 50, 23 Am. Rep. 18, 1876. [Miss.] McBeth v. State, 50 Miss. 81, 1874; Crum v. State, 64 CRIMINAL LAW. [§ 465 654 In such a case the physician’s negligence was a condition of the death; the wound its cause.® Even if an injury be given by A, which puts B in a position in which he receives a fatal wound, this is not homicide in A, un- less the wound was the natural and probable result of his act.® § 466. Master liable for servant. In all that relates to the management of the master’s business the servant is to be regarded as the master’s instrument; and as the master is re- sponsible for the defective or mischievous action of his machine, so is he responsible for the defective or mischievous action of his servant.1_ When, however, the servant leaves the orbit pre- scribed by his master and undertakes excursions on his own ac- count, then the master’s responsibility ceases. We here fall back on the principle elsewhere invoked, that there must be a direct causal connection between the defendant’s malfeasance or nonfeasance and the injury. ‘The interposition of a human will acting independently of the defendant and in an eccentric orbit, or the interposition of some extraordinary natural phe- nomenon, breaks this causal connection.” Hence where A, through his servants, makes fireworks in his house, contrary to statute, the master is not responsible for an injury caused by an independent culpable mismanagement of the fireworks by one of the servants.*’ § 467. No defense that business was lawful. To an in- dictment for negligence it is no defense that the defendant’s Miss. 1, 60 Am. Rep. 44, 1 So. 1, 7 Am. Crim. Rep. 372, 1886. Co. 107 Mass. 236, 1871; Com. v. Boston & L. R. Corp. 126 Mass. 61, See 3 Greenl. Ev. § 139; Roscoe, Crim. Ev. 77-79; 1 Hale, P. C. 428; also, note in 11 Am. Rep. 125. Wound given in malice, but in its nature mortal, which being neglected or mismanaged by the physician in charge, the accused must be held guilty, unless it clearly appears that the neglect and mismanagement were the sole cause of death. See State v. Bantley, 44 Conn. 537, 26 Am. Rep. 486, 1877; Crum v. State, 64 Miss. 1, 60 Am. Rep. 44, 1 So. 1, 7 Am. Crim. Rep. 372, 1886. 5 As to contributory negligence, see supra, § 205. 6 Supra, § 211. 1See supra, §§ 174, 287; infra, §§ 1688, 1794; Com. v. Metropolitan R. 1879,—cases under a special statute making corporations indictable for negligence of servants. Supra, §§ 116 et seq. And see Rex v. Medley, 6 Car. & P. 292, 1834; Rex v. Dixon, 3 Maule & S. 11, 4 Campb. 12, 15 Revised Rep. 381, 1813; Tuberville v. Stampe, 1 Ld. Raym. 264; Com. v. Nichols, 10 Met. 259, 48 Am. Dec. 432, 1845; Com. v. Morgan, 107 Mass. 199, 1871. 2 Supra, § 286. 3 Reg. v. Bennett, Bell, C. C. 1, 8 Cox, C. C. 74, 28 L. J. Mag. Cas. N. S. 27, 7 Week. Rep. 40, 4 Jur. N.S. 1088, 1858. § 469] HOMICIDE. 655 business was lawful.’ If he acts negligently, and from his neg- ligence, as a natural, usual, and likely result, death follows, it is undoubtedly manslaughter.? Such also is the law with re- gard to manufacturers and workmen ;? to persons having charge of children or dependents,* and to officers of steam and other vessels.> § 468. Negligent use of dangerous agencies indictable. Whoever possesses a dangerous agency must take such care of it as good business men, under such circumstances, are ac- customed to apply; and if from his neglecting to exercise such care death ensue to another, he is liable for manslaughter.* Illustrations of this principle will be given in the following sec- tions. § 469. Negligent use cf firearms imputable. Wantonly, though without malice, and without considering the probable consequences, to discharge firearms, the shot from which will pass a place where persons are likely to be, is negligence, whose results are imputable to the person offending.’ 1Chrystal v. Com. 9 Bush, 669, 1873. 2Supra, §§ 193-211. S8Infra, § 484. See Reg. v. Ben- nett, Bell, C. C. 1, 8 Cox, C. ©. 74, P 28 L. J. Mag. Cas. N. S. 27, 7 Week. Rep. 40, 4 Jur. N. S. 1088, 1858. 4 Infra, §§ 476, 1563, et seq. 5 Infra, §§ 477, et seq. 1See supra, §§ 172, 195, 203, 208; infra, § 494. And see [Eng.] Rex v. Carr, 8 Car. & P. 163, 1837; Reg. v. Hutchinson, 9 Cox, C. C. 555, 1864; Reg. v. Weston, 14 Cox, C. C. 346, 1879. [Fed.] United States v. War- ner, 4 McLean, 463, Fed. Cas. No. 16,643, 1850; United States v. Free- man, 4 Mason, 505, Fed. Cas. No. 15,162, 1827. [Ala.] Henderson v. State, 98 Ala. 35, 18 So. 146, 1893. [N. J.] State v. O’Brien, 32 N. J. L. 169, 1867. [N. C.] State v. Hoover, 20 N. C. 500 (4 Dev. & B. L. 365), 34 Am. Dec. 383, 1839. As to the use of spring guns and man trap, see infra, § 638. 1See supra, §§ 203, 208. [Eng.] Burton’s Case, 1 Strange, 481, 1734. [Ark.] Bizzell v. Booker, 16 Ark. 308, 1856. [Ga.] Collier v. State, 39 Ga. 31, 99 Am. Dec. 449, 1868; Pool v. State, 87 Ga. 526, 13 S. E. A fortiori is 556, 1891. [Ky.] Sparks v. Com. 3 Bush, 111, 96 Am. Dec. 196, 1868. [Mo.] State v. Emery, 78 Mo. 77, 47 Am. Rep. 92, 1878. [N. Y.] Peo- le v. Fuller, 2 Park. Crim. Rep. 16, 1855. [N. C.] State v. Roane, 13 N. C. (2 Dev. L.) 58, 1830. As to involuntary manslaughter, see Com. v. Matthews, 89 Ky. 287, 12 8. W. 333, 1889; Smith v. Com. 93 Ky. 318, 20 S. W. 229, 1892. Firing gun into crowd with inten- tion to kill, a homicide following will be murder, but if the firing was accidental and involuntary, the homi- cide will be manslaughter. Golliher v. Com. 2 Duv. 163, 87 Am. Dec. 493, 1865. Practical joke — Firing revolver to frighten—In State v. Hardie, 47 Jowa, 647, 29 Am. Rep. 496, 2 Am. Crim. Rep. 326, 1877, a revolver was fired playfully for the object of frightening a lady. The revolver was loaded, and she was killed. This was held manslaughter. See John- son v. State, 94 Ala. 35, 10 So. 667, 1891. For other illustrations of prac- tical jokes, see State v. Roane, 13 N. ©. (2 Dev. LL.) 58, 1830; Collier v. State, 39 Ga. 31, 99 Am. Dec. 449, 1869. Infra, § 499. And see Er- 656 GRIMINAL LAW. [§ 469 . it manslaughter in the common law if one negligently discharge a gun in or toward a public place or street, and kill one whom he does not see.? Where the shooting is malicious the offense is murder.’ Of course if the discharge was in performance of any legal duty the law is otherwise.* Nor is it manslaughter rington’s Case, 2 Lewin, OC. C. 217, 1835; Rex v. Conner, 7 Car. & P. 438, 1836; Adams v. State, 65 Ind. 565, 1879; Robertson v. State, 2 Lea, 239, 31 Am. Rep. 602, 3 Am. Crim. Rep. 207, 1879. 2Supra, § 203. [Eng.] Reg. v. Campbell, 11 Cox, C. C. 323, 1869; Reg. v. Jones, 12 Cox, ©. C. 628, 1874. See Reg. v. Hutchinson, 9 Cox, C. C. 555, 1864; Reg. v. Archer, 1 Fost. & F. 351, 1858 (a case ot unlawful snatching of loaded gun, when it accidentally went off); Reg. v. Salmon, L. R. 6 Q. B. Div. 79, 14 Cox, C. C. 494, 50 L. J. Mag. Cas. N. S. 25, 43 L. T. N. S. 573, 29 Week. Rep. 246, 45 J. P. 270, 1880 (where the defendant was firing a rifle at a target and killed a boy in a gar- den 393 yards distant, the boy being out of sight, and where the convic- tion was affirmed by the Court of Crown Cases Reserved.) [Iowa] State v. Vance, 17 Iowa, 138, 1864. [Ky.] - Sparks v. Com. 3 Bush, 111, 96 Am. Dec. 196, 1867. [N. Y.] People v. Fuller, 2 Park. Crim. Rep. 16, 1855; Haack v. Fearing, 5 Robt. 528, 1868. [S. C.] State v. Gilliam, 66 S. C. 419, 45 S. E. 6, 1908; State v. Cau- ser, — 8S. C. —, 70 8S. E. 161, 1911; State v. Badgett, — 8S. C. —, 70 S. E. 301, 1911. See also Comments in London Law Times, Dec. 11, 1880, p. 95; Whart- on, Neg. §§ 92, 836, 853. 3 See supra, §§ 443, 444; Golliher v. Com. 2 Duv. 163, 87 Am. Dec, 493, 1865. Firing at man on horseback, kill- ing another—In Reg. v. Noon, 6 Cox, C. C. 187, 1854, the defendant fired a pistol at C on horseback and killed D. This was held murder, though it was said that if the ob- ject had been by “appropriate” means (e. g., firing in the air) to frighten C’s horse, the offense would have been manslaughter. See infra, § 499, 4Reg, v. Hutchinson, 9 Cox, C. C. 555, 1864. Homicide in performance of legal duty — Servant shooting master. Where deer had entered a cornfield, and were beating down the corn, the owner went with his servant to watch at night with a gun, and charged him to fire when he heard anything rush into the standing corn; and upon the owner rushing into the corn in another part of the field, the servant fired and killed him. In the first passage wherein Lord Hale mentions this case, he seems to think that it amounted to manslaughter, for want of due dili- gence and care in the servant in shooting upon such a token as might befall a man as well as a deer; how- ever, he says, it was a question of great difficulty. But in a subsequent part of his work, as is noticed by Mr. East, the learned author relat- ing the same case, which had been determined by himself at Peterbor- ough, says, that he had ruled it only to be misadventure; for the servant was misguided by his master’s own direction, and was ignorant that it was anything else but the deer. But it seemed to him that if the master had not given such direction, which was the occasion of the mistake, it would have been manslaughter; be- cause of the want of due caution in the servant to shoot before he dis- covered his mark. So in the case above cited, where a gentleman on alighting from a chaise fired his pistols into the street, which, by accident, killed a woman, it was ruled manslaughter; for the act was likely to breed danger, and manifest- ly improper. 1 Hale, P. C. 475; Burton’s Case, 1 Strange, 481, 1734. Shooting at deer in another’s park, without leave, is an unlawful act, § 471] HOMICIDE. 657 when the person using the weapon (there being no negligence) is not aware that it was loaded.® § 470. Negligent exposure of poison indictable. Who- ever negligently exposes poison in such a way that as an ordi- nary consequence it produces death is guilty of manslaughter; * though, as has been already seen, his penal responsibility ceases if the poison was taken through the negligence of the deceased, or of that of an independent responsible third person.” § 471. —So of negligent administration of poison. It is also settled that he who administers poison negligently to anoth- er, causing death, is guilty of manslaughter; and it is sufficient to establish negligence in this respect that he ought to have known the pernicious character of the drug he administered. Cua facile est scire, et detrimento esso debet ignorantia sua.’ This principle has been frequently recognized in our criminal jurisprudence.” Thus, it is manslaughter in a nurse to produce the death of a child by negligently administering it laudanum with the intention of quieting it;* and for an apothecary negli- gently to label “laudanum” as “paregoric,” thereby causing death.* though done in sport, and without any felonious intent; and, therefore, if a bystander be killed by the shot, such killing would be manslaughter. Fost. C. L. 258. Negligent handling by servants.— It has, however, been held that a person who unlawfully keeps powder in his house is not responsible for mischief caused by negligent med- dling with it by his servants. Reg. v. Bennett, Bell C. C. 1, 8 Cox, C. C. 74, 1858, 28 L. J. Mag. Cas. N. S. 27, 7 Week. Rep. 40, 4 Jur. N. S. 1088. 5 Mainer v. State, 6 Baxt. 595, 1876. See Burton v. State, 92 Ga. 449, 17 S. E. 99, 1893, where there was negligence. Embry v. Com. 11 Ky. L. Rep. 515, 12 S. W. 383, 1889. 1See supra, §§ 172, 203, 208; 1 Hale, P. C. 431; Reg. v. Chamberlain, 10 Cox, C. C. 486, 1867. When a man lays poison to kill rats, and another man takes it and kills him, if the poison was laid in such a manner and place as to Crim. L. Vol. I.—42. To make a person liable, however, for the consequences be mistaken for food, it is man- slaughter; if otherwise, misadven- ture only. 1 Hale, P. C. 431. See Butler v. State, 92 Ga. 601, 19 S. E. 51, 1893. See Reg. v. Michael, 9 Car. & P. 356, 1840, 2 Moody, C. C. 120, where it is held murder to maliciously administer poison through an unconscious agent. 2See supra, §§ 193-211. 1See Wharton, Neg. §§ 91, 440, 441, 853, and supra, §§ 138, 142, 143, 165, 441; infra, § 494. 2 [Eng.] Tessymond’s Case, 1 Lew- in, C. C. 169, 1828. [La.] Hubener v. New Orleans & C. R. Co. 23 La. Ann. 492, 1871. [Pa.] Cotter v. Frankford & 8S. R. Co. — Pa.’C. P. —, 387 Am. Rep. 384, note, 1881. [N. Y¥.] Phillips v. Rensselaer & S. R. Co. 49 N. Y. 177, 1872. See note in 37 Am. Rep. 384-387. 3Ann v. State, 11 Humph, 159, 1851. 4Tessymond’s Case, 1 Lewin, C. C. 169, 1828. See supra, §§ 138, 142, 148, 165, 441. 658 CRIMINAL LAW. [§ 471 of communicating poison, or other deleterious matter, he must either be cognizant of its dangerous properties, or be in a posi- tion in which he ought to be so cognizant.° § 472. —So of intoxicating liquors. When an overdose of intoxicating liquors is negligently administered, producing death in the recipient, the person administering is guilty of manslaughter.? § 473. Officers of railroad liable for death ensuing from their want of care. Those conducting or driving a locomo- tive engine are bound to show in their calling the diligence that good and prudent officers in such departments are accus- tomed to exercise. If, from lack of such diligence, death en- sues either to a passenger in the train or a traveler on the road,! the officer guilty of the neglect is liable for manslaughter. In carrying out this principle, where the switch tender of a 5 Infra, § 657. 1 Rex v. Martin, 3 Car. & P. 211, 1827; Reg. v. Packard, Car. & M. 236, 1841. See fully Wharton, Homi- cide, § 98. Inducing to drink inordinate quan- tity.—In the case of Reg. v. Lortie, 9 Quebec L. R. 352, one 'l’, an habit- ual drunkard, at u hotel in Quebec, put himself in the way to be offered drink, which the accused ordered for him and paid for. Accused then gave him three glasses of liquor, three quarters whisky reduced and one quarter wine, which the deceased drank in rapid succession. Insist- ing on the deceased’s capacity to drink, the accused offered to make bets that deceased could drink more, and even offered him a share of one of the bets. In this way deceased was induced to drink two very large tumblerfuls of a mixture of beer, whisky, and wine. Shortly after the deceased was overcome by the drink, became unconscious, and was carried home in a van, and died next morning without ever having recovered speech or consciousness. In charging the jury, the court said that drinking with another, or even giving another drink, was in itself innocent, and if the person to whom the drink was given died of the effects of it, the party giving it was not responsible. But if the jury were satisfied that the drink was given not out of good fellowship, but with the intention of making the deceased ill or drunk, it was an illegal act; and if the mam died from the effects of the drink so given, it would be manslaughter im the party giving it. —This is the well-known principle that a party engaging in an unlaw- ful act is responsible for all the coa- sequences which naturally or nmeces- sarily flow from such act. Com. v. Campbell, 7 Allen, 541, 88 Am. Dec. 705, 1863. 1See topic discussed at large in Wharton, Neg. §§ 645, 798. As to statutory penalties oa cer- porations, see supra, § 116. Negligence of engineer, etc.—But where the officers of a railroad have made due provision for guarding against the accident resulting im death, and the engineer oer other servant of the railroad has failed to make proper use of the means and appliances furnished, the direc- tors of the railroad company will not be criminally responsible for the resulting death, which weuld have been prevented had the use of the means and appliances beer made. State v. Young, — N. J. L. —, 56 Atl. 471, 1903. § 474] HOMICIDE. 659 railroad was indicted in New Jersey for manslaughter in ne- glecting properly to move a switch whereby loss of life ensued, it was held not necessary to prove that the neglect was wilful or reckless; and that the question whether due care was shown was for the jury.® § 474. Where there is duty there is liability. When a collision occurs on a railroad, and death is caused, the person responsible, by the English rule, is the man actually in charge of the engine, and whose negligence caused the accident at the time of the collision;* and he is responsible if he leave the engine in charge of an incompetent person.” But it has been ruled in England, that unless the law imposes a duty on the owners of a railroad to watch a crossing, they are not responsi- ble for injuries which might have been avoided by having a guard at the crossing. Thus where the private servant of the owner of a tramway, crossing a public road, was intrusted to watch it, while he was absent from his duty, an accident hap- pened, and a person was killed. The charter did not require the owner to watch the tramway. It was held that there was no duty between the owner and the public, and therefore his servant was not guilty of negligence, so as to make him guilty ef manslaughter.* But it is otherwise when a railway tender er watchman undertaking to act as such, to the exclusion of ethers, neglects to give the proper signal.* 2State v. O’Brien, 32 N. J. L. 169, 1865. Telegraph operator giving wrong signal.—In the Hudson county (New der. See Golliher v. Com. 2 Duv. 163, 87 Am. Dec. 493, 1865. 2 Reg. v. Lowe, 4 Cox, C. C. 449, 3 Car. & K. 123, 4 Mor. Min. Rep. Jersey) court of quarter sessions, ou Tuesday, January 12, 1875, John 8. McClelland, a telegraph operator, was convicted of negligence in giv- ing a wrong signal to the conductor ef an approaching train, in conse- quence of which a collision and death ensued. See N. Y. Times, Jan. 18, 1875. As to brakeman deserting post or failure to prevent homicide, see Com. v. Hamilton, 26 Phila. Leg. Int. 68, 1865; Anderson v. State, 27 Tex. App. 177, 3 L.R.A. 644, 11 Am. St. Rep. 189, 11 S. W. 33, 1889. 1Reg. v. Birchall, 4 Fost. & F. 1087, 1866. When there is malice, it is mur- 180, 1850. 8 Reg. v. Smith, 11 Cox, C. C. 210, 1869. 4Supra, §§ 162, 167, 172, 454. Rear-end collision of trains.—On an indictment in England against an engine ariver, and a fireman of a railway train, for the manslaugh- ter of persons killed while traveling in a preceding train by the prisoner’s train running into it, it appeared that on the day in question special instructions had been issued to them, which in some respects differed from the general rules and regulations, and altered the signal for danger, so as to make it mean not “stop,” but “proceed with caution;” that 660 CRIMINAL LAW. [§ 475 § 475. —But must be specific duty. In such cases a specific personal duty must be proved. Thus, where the pris- oner was the driver and the deceased was the fireman of a steam- engine on a railway and the death of the latter was caused by the engine coming into collision with a train standing on the same line of rails, owing to a neglect on the part of the person in charge of the engine to keep a sufficient lookout, and there was evidence that it was the duty of the prisoner or of the de- ceased to keep a lookout, but there was no evidence as to which of the two was charged with the duty at the time of the collision, it was held that as there was no specific duty proved on the de- fendant, he was entitled to an acquittal. Nor where a statute imposes penal liability for injury to passengers is a railway corporation indictable for an injury sustained by a person who, the train having overshot a station, has left the train. when in the trains were started by the su- perior officers of the company ir- regularly, at intervals of about five minutes; that the preceding train had stopped for three minutes, with- out any notice to the prisoners ex- cept the signal for caution; and that their train was being driven at an excessive rate of speed; and that then they did not slacken immediately on perceiving the sig- nal, but almost immediately, and that as soon as they saw the pre- ceding train, they did their best to stop, but without effect. It was held, first, that the special rules, so far as not consistent with the general rules, superseded them; secondly, that if the prisoners hon- estly believed they were observing thems and they were not obviously illegal, they were not criminally re- sponsible; and, thirdly, that the fire- man being bound to obey the direc- tions of the engine driver, and, so far as appeared, having done so, there was no case against him. Reg. v. Trainer, 4 Fost. & F. 105, 1864. See as to engineer, Com. v. Kuhn, 1 Pittsb. 18, 1853. Infra, § 1908. As to causal relation, see supra, §§ 193-211, 463. Track repairing — Failure to give notice — Wreck and Death.—Where a fatal railway accident had been caused by one train running off the line, at a spot where rails had been taken up, without allowing sufii- cient time to replace them, and also without giving sufficient, or, at all events, effective warning to the engine driver; and it was the duty of the foreman of the plate layers to direct when the work should be done, and also to direct effective signals to be given; it was held, that though he was under the gener- al control of an inspector of the district, the inspector was not liable, but that the foreman was, even al- though there had also been negli- gence on the part of the engine driver in not keeping a sufficient lookout. Reg. v. Benge, 4 Fost. & F. 504, 1865. Where an officer charged with the duty neglects to give the proper signs, whereby a collision occurs, causing death, such officer is guilty of manslaughter. Reg. v. Pargeter, 3 Cox, C. C, 191, §§ 462, 463; infra, 1908. Indictment must aver the omis- sion to give due signals, to make evidence to this point admissible. Com. v. Fitchburg R. Co. 126 Mass. 472, 1879. 1 Reg. v. Gray, 4 Fost. & F. 1098, 1865. : § 477] HOMICIDE, 661 motion, and is struck by another train while making his way to the station.? § 476. Killing by negligently dropping articles, man- slaughter. It is manslaughter negligently to drop articles on a thoroughfare by which a person passing is struck and killed. Of this a pointed illustration is given in a case tried in the Old Bailey, in 1664. The defendant was employed upon a build- ing, 30 feet from the highway, and threw down a piece of tim- ber, having first cried out to stand clear. The timber fell upon a person who happened to go out of the way to pass underneath, and killed him. It was held misadventure only, though it was said that if the house had been on a constant thoroughfare, it would have been manslaughter, supposing the warning given to have been imperfect.* On the other hand, a merchant, who was raising a cask of wine to a third story, over a crowded street, and who let the cask slip whereby two women were killed, was held guilty of man- slaughter, as, under the circumstances, the method taken of rais- ing the cask was not sufficiently guarded and no due notice was given.® § 477. Liability of steamboat officers for negligence. By the act of Congress of July 7, 1833, § 12, it was provided’ that “every captain, engineer, pilot, or other person employed on board of any steamboat or vessel propelled in whole or part by steam, by whose misconduct, negligence, or inattention to his or their respective duties the life or lives of any person or per- sons on board such vessel may be destroyed, shall be deemed guilty of manslaughter, and upon conviction thereof before any circuit court of the United States, shall be sentenced to confine- ment at hard labor for a period not more than ten years.” Un- der this act it has been held that there must be a causal connec- tion between the negligence and the injury, and that the former must appear to be the proximate cause of the latter.’ 2Com. v. Boston & M. R. Co. 129 Mass. 500, 87 Am. Rep. 382, 1881. As to contributory negligence, see however, supra, §§ 205, 206. 1Hull’s Case, J. Kelyng, 40, 1664. 2Rigmaidon’s Case, 1 Lewin, C. C. 180, 1833. 1United States v. Collyer, Fed. Cas. No. 14,838, 1846. See also United States v. Warner, 4 Me- Lean, 463, Fed. Cas. No. 16,643, 1850; United States v. Taylor, 5 McLean, 242, Fed. Cas. No. 16,441, 1851; The Henry Clay, Fed. Cas, No. 6,375, 1852; Re Doig, 4 Fed. 1938, 1880; United States v. Keller, 19 Fed. 633, 1884; Com. v. Bilder- back, 2 Pars. Sel. Eq. Cas.* 447, 662 CRIMINAL LAW. [§ 477 Intent, in accordance with the principles already stated, does not enter into the issue; it is enough if the defendant, being an officer charged with the particular duty, neglected such duty.? A part owner, assuming the duty of an officer, is responsible under the act;* but one officer is not liable for another’s negli- gence, unless participating in or promoting such negligence.* Casus, or inevitable accident, is, of course, a good defense.’ If the death is imputable to the imprudence of the deceased, the defendant is not liable unless such imprudence was a natural result of the defendant’s negligence.® The responsibility of steamboat officers for collisions is gauged by the same tests as that of other persons wielding dangerous agencies.” § 478. Death produced by careless driving is man- slaughter. Independently of the principles just announced which bear with as equal force upon land as upon water col- lisions, it must be remembered that there are cases in which the driving of an unsafe horse, like the navigating of an unsafe ship, makes the offending party guilty of manslaughter if death en- sue. Thus if a person, breaking an unruly horse, ride him amongst a crowd of people and death ensue from the viciousness of the animal, though this appear to have been done heedlessly 1848. 8S. P., Rex v. Green, 7 Car. & P. 156, 1836. Negligence, etc., in management of steamboat — Meaning of term.—“By negligence or inattention in the man- agement of steamboats is undoubt- edly meant the omission or commis- sion of any act which may naturally lead to the consequences made crim- inal; and it is no matter what may be the degree of misconduct, whether it is slight or serious, if the proof satisfy that the setting fire to the boat was the necessary or most probable cause of it.” Ingersoll, J., in United States v. Collyer, Ted. Cas. No. 14,838, 1846, citing charge in United States v. Farnham, 2 Blatchf. 528, Fed. Cas. No. 15,071, 1853. 2United States v. Warner, 4 Mc- Lean, 463, Fed. Cas. No. 16,648, 1850; United States v. Keller, 19 Fed. 633, 1883. See The New World v. King, 16 How. 469, 14 L. ed. 1019, 1853. Jurisdiction — Place of miscon- duct.—In Re Doig, 4 Fed. 193, 1880, it was held that the place of mis- conduct has in such cases jurisdic- tion. Supra, §§ 339-341. 8 United States v. Collyer, Fed. Cas. No. 14,838, 1846. 4Ibid.; S. P., Rex v. Allen, 7 Car. & P. 153, 1835; Reg. v. Birchall, 4 Fost. & F. 1087, 1866. 5 United States v. Warner, 4 Mc- Lean, 463, Fed. Cas. No. 16,648, 1850. 6 Wharton, Homicide, § 105; Unit- ed States v. Warner, 4 McLean, 463, Fed. Cas. No. 16,648, 1850. 7Reg. v. Taylor, 9 Car. & P. 672, 1840; Rex v. Allen, 7 Car. & P. 153, 1835; Rex v. Green, 7 Car. & P. 156. § 480] HOMICIDE, 663 and incautiously, and not with an inten: to do mischief, the crime will be manslaughter;* while it would be murder if the rider intended to divert himself with the fright of the crowd,* or to have seriously injured any one whom he might strike.® § 479. —Rapidity which puts the horse out of control imposes liability. Certain particular conditions, however, must be maintained in driving, which it is well to keep in mind. Any degree of rapidity on a thoroughfare, inconsistent with the degree of check with which the horses may be held, may make the owner responsible; and this rule applies though it appears that prior caution by the person struck might have kept him out of danger, unless such want of caution was the immediate cause of the disaster.’ § 480. —Care to be that usual to prudent driver. The care to be exercised is that which careful drivers are accustomed to use. 11 East, P. C. 231. Automobile driven in such a reck- less manner as to cause homicide, driver is guilty of manslaughter. State v. Campbell, 82 Conn. 671, 135 Am. St. Rep. 293, 74 Atl. 927, 18 A. & E. Ann. Cas, 236, 1910; State v. Goetz, 83 Conn. 437, 30 L.R.A.(N.S.) 458, 76 Atl. 1000, 1910; People v. Scanlon, 1382 App. Div. 528, 117 N. Y. Supp. 57, 1909. Requirement that driver remain and assist injured person, provided by the statutes in some states (see Kerr’s Biennial Supplement to Cyclo- pedic Codes of California, 1910-11, p. 874), has been held to be uncon- stitutional in California and New York. —The California statute (Cyc. Penal Code, § 367c) relates to drivers of automobiles in collision. Judge Bledsoe, in the case of Peo- ple v. Hendee, superior court of San Bernadino, in an opinion handed down on July 31, 1911, held the statute unconstitutional on the ground that the act exempts the drivers of vehicles not motor-driven. The court recognized as a natural distinctive and constitutional class, “joy riders” and “speed maniacs,” but held that the legislature should have singled out and dealt with Hence, a driver who fails to exercise such care and them in such manner as may have been proper, but that it should have included all of the classes regard- less of whether the vehicle was motor-driven or horse-drawn. See Kerr’s Bien. Supp. 1910-11, p. 874. —New York statute, with a simi- lar provision, was held unconstitu- tional by an appellate court on the ground that to make wa failure to remain and render assistance on such an occasion a crime, violates the constitutional provision that no one shall be compelled to become a witness against himself. To for- bid an evil doer to flee his act is to compel him to confess. See Editorial in Munsey’s Sept. 1911, p. 818. 21 Hawk. P. C. chap. 18, § 68. 81 Hale, P. C. 475; Fost. C. L. 263; Lee v. State, 1 Coldw. 62, 1865. Supra, §§ 142, 143, 145-147, 443, 444. 1 Wharton, Neg. §§ 306, 323, 388; Rex v. Walker, 1 Car. & P. 320, 1824; Rex v. Mastin, 6 Car. & P. 396, 1834; Rex v. Timmins, 7 Car. & P. 499, 1836; Reg. v. Swindall, 2 Car. & K. 230, 2 Cox, C. C. 141, 1846. Supra, §§ 188, 205. 1 Wharton, Neg. §§ 31-46. Com- pare Rex v. Huggins, 2 Strange, 664 CRIMINAL LAW. [§ 480 thereby injures another is penally responsible.? As a rule, care is to be proportioned to danger. To drive rapidly on an open country highway, where the danger of collision is slight, is not negligence. On the other hand, rapid driving in a thronged street invokes a peculiar degree of caution.® 882, 1754, 2 Ld. Raym. 1574; 1 Hale, P. C. 486. 2Reg. v. Murray, 5 Cox, C. C. 509, 1852; Rex v. Grout, 6 Car. & P. 629, 1834; Reynolds v. Clarke, 1 Strange, 635, 1719, 2 Ld. Raym. 1402; Hall v. Pickard, 3 Campb. 187; Barnes v. Hurd, 11 Mass. 57, 1814. Supra, §§ 172 et seq. Foot-passenger in England is not excluded from the use of the car- riageway though there be a footpath, and hence the killing of him by a carriage is manslaughter in the owner if reasonable care was not used. Thus, a tradesman was walk- ing on a road, about 2 feet from the footpath, after dark, but there were lamps at certain distances along the line of road, when the prisoner drove in w cart drawn by one horse, at the rate of from 8 to 10 miles an hour, according to some witnesses, and from 6 to 7 miles an hour, according to other witnesses; the prisoner sat on some sacks, laid on the bottom of the cart, and he was nearsighted. Other persons, who were walking along the same road, had with considerable difficulty got out of the way of the prisoner’s cart. Bolland, B., told the jury that the question was whether the pris- oner, having the care of the cart, and being a nearsighted man, con- ducted himself in such a way as not to put in jeopardy the limbs and lives of his majesty’s subjects. If they thought he had conducted him- self properly, they would say he was not guilty; but if they thought that he acted carelessly and negli- gently, they would pronounce him guilty of manslaughter. Rex v. Grout, 6 Car. & P. 629, 1834. 3 Reg. v. Swindall, 2 Car. & K. 230, 2 Cox, C. C, 141, 1846; Com. v. Metropolitan R. Co. 107 Mass. 236, 1871; Wharton, Homicide, § 111, where the authorities are given at large. Misadventure — Running down pedestrian on highway.—A. was driv- ing a cart with four horses in the highway at Whitechapel, and he be- ing in the cart, and the horses upon a trot, they threw down a woman, who was going the same way, with a burden upon her head, and killed her. Holt, C. J., Tracy, J., Baron Bury, and the Recorder, Lovel, held this to be only misadventure. But by Holt, C. J., if it had been in a street where people usually pass, it had been manslaughter. 1 East, P. C. 263, 1704. But upon this case Mr. East re- marked: “It must be taken for granted, from this note of the case, that the accident happened in a highway, where people did not usual- ly pass; for otherwise the circum- stance of the driver’s being in the cart, and going so much faster than is usual for carriages of that con- struction, savored much of negli- gence and impropriety; for it was extremely difficult, if not impossible, to stop the course of the horses suddenly, in order to avoid any per- son who could not get out of the way in time. And, indeed, such con- duct, in a driver of such heavy car- riages, might, under most circum- stances, be thought to betoken a want of due care, if any, though but few, persons might probably pass by the same road. The greatest possible care is not to be expected, nor is it required; but whoever seeks to excuse himself for having un- fortunately occasioned, by any act of his own, the death of another, ought at least to show that he took that care to avoid it which persons in similar situations are accustomed to do.” 1 East, P. C, 263. Carter must stand at horse’s head. —A carter, if he does not have the § 483] HOMICIDE, 665 § 481. —All parties concerned liable as principals. When two drivers were negligently racing with their respective carts on a public road, and one of the carts killed a traveler on the road, both drivers were held responsible for manslaughter.* And this rule holds good in respect to all cases where an injury is produced to an innocent third person by a collision between two parties who are both negligent.? § 482. Letting loose dangerous animals. He who lets loose a dangerous animal is responsible for death caused by such animal, provided he either knew of the animal’s dangerous ten- dencies,’ or was in such a position that he should have known of such tendencies.” If the mischief was undesigned by the defendant, the offense is manslaughter ; if designed, murder.® § 483. Killing helpless person by neglect is man- slaughter. The doing an act, or the imperfect performance of a duty, toward a person who is helpless, which naturally and ordinarily leads to the death of such person, is murder, if death or grievous bodily harm is intended; and manslaughter, if the cause is negligence.” means of controlling his horse when standing in the cart, is bound to keep at his horse’s head or side, and if in consequence of his neglect in this respect death follows, he is guilty of manslaughter. Upon an indictment for manslaughter, the evidence was that the prisoner, be- ing employed to drive a cart, sat in the inside instead of attending at the horse’s head, and while he was sitting there the cart went over a child, who was gathering uy flowers on the road. Bayley, B, held that the prisoner, by being in the cart instead of at the horse’s head or by its side, was guilty of negligence; and death having been caused by such negligence, he was guilty of manslaughter. Knight’s Case, 1 Lewin, C. C. 168, 1828. Cf. Repsher v. Watson, 1 Phila. 24, 1850. 1Reg. v. Swindall, 2 Car. & K. 230, 2 Cox, C. C. 141, 1846. Supra, § 478. 2[Eng.] Thorogood v. Bryan, 8 Cc. B. 115, 1849; Cattlin v. Hills, 8 C. B. 123, 1849; Reg. v. Haines, 2 Car. & K. 368, 4 Mor. Min. Rep. 174, 1847. [N. Y.] Colegrove v. New York & N. H. R. Co. 20 N. Y. 492, 75 Am. Dec. 418, 1859, affirming 6 Duer, 382, 1857; Barrett v. Third Ave, R. Co. 45 N. Y. 628, 1870; Slater v. Mersereau, 64 N. Y. 147, 1876; Arctic F. Ins. Co. v. Austin, 3 Hun, 195, 6 Thomp. & C. 63, 1874; Mooney v. Hudson River R. Co. 5 Robt. 548, 1868. [Ohio] Boyd v. Watt, 27 Ohio St. 268, 1875. [Pa.] Lockhart v. Lichtenthaler, 46 Pa. 151, 1864. See note in 75 Am. Dec. 419. For further distinctions, see Wharton, Neg. 2d ed. § 395; Arm- strong v. Lancashire & Y. R. Co. L, R. 10 Exch. 47. 1Reg. v. Dant, Leigh & C. C. C. 567, 10 Cox, C. C. 102, 34 L. J. Mag. Cas. wv. 8. 119, 11 Jur. N. S. 549, 12 L. T. N. S. 396, 18 Week. Rep. 663, 1865. 2Supra, § 241; Wharton, Neg. 904 8 See fully Wharton, Homicide, § 125. 1Reg. v. Walters, Car. & M. 164, 1841; Reg. v. Smith, Leigh & C. ©. 666 CRIMINAL LAW. [§ 484 § 484. Death of child by parent’s neglect is man- slaughter. So far as concerns the neglect of a mother to prop- erly attend to a bastard child after birth, statutes exist in which the common-law offense is absorbed. Independently of these statutes, it may be generally stated that for a parent, having special charge of an infant child, to so culpably neglect it that death ensues as a consequence of such neglect, is manslaughter if death or grievous bodily harm were not intended ; and murder if there was an intent to inflict death or grievous bodily harm. To constitute murder there must be means to relieve, and wil- fulness in withholding relief.? If the parent has not the means for the child’s nurture, his duty is to apply to the public au- thorities for relief; and failure to do so is itself culpable neglect wherever there are public authorities capable of affording such relief.$ Hence, as we have seen, it is not necessary to aver in the indictment possession of means by the parent.* When a child grows to sufficient age to be capable of applying C. 607, 10 Cox, C. C. 82, 34 L. J. Mag. Cas. wvW. S. 153, 11 Jur. N. S. 695, 12 L. T. N. S. 609, 18 Week. Rep. 816, 1865. See supra, § 198; United States v. Knowles, 4 Sawy. 517, Fed. Cas. No. 15,540, 1864. Abandoning newly-born infant by roadside.—Sir J. F. Stephen (Digest Crim. Law, 5th ed art. 244) thus states the point in Walter’s case: A, recently delivered of a child, lays it naked by the side of the road, and wholly conceals its birth. It dies of cold. This is murder or manslaughter, according as A had or had not reasonable ground for believing that the child would be preserved. On this he comments as follows: “This case appears to me to illus- trate the true doctrine on the sub- ject better than the old and often quoted case of the woman who left her child in a place where it was struck by a kite and killed. The point of that case, I take to be, that the striking by a kite was an oc- currence sufficiently likely to im- pose upon the mother the duty of guarding against it. Kites having been almost exterminated in Eng- land, their habits are forgotton. But to lay a child on the ground in Calcutta would be to expose it to almost certain and speedy death from kites and other birds of prey. I have myself been struck by a kite which had just struck at one of my children.” 1Supra, §§ 198, 456; infra, §§ 1880-1885; Reg. v. Chandler, Dears. C.C. 453, 3 C. L. R. 680, 24 L. J. Mag. Cas. N. 8. 109, 1 Jur. N. S. 429, 3 Week. Rep. 404, 6 Cox, C. C. 519, 1855; Reg. v. Mabbett, 5 Cox, C. C. 339, 1851; Reg. v. Bubb, 4 Cox, C. C. 455, 1850; Reg. v. Conde, 10 Cox, C. C. 547, 1867; Reg. v. Ryland, L. R. 1 C. C. 99, 10 Cox, C. C. 569, 37 L. J. Mag. Cas. N. 8. 10, 17 L. T. N. S. 219, 16 Week. Rep. 280, 1867. Compare: Reg. v. Knights, 2 Fost. & F. 46, 1860. 2Rex v. Saunders, 7 Car. & P. 277, 1835. 8 Supra, § 460; Reg. v. Mabbett, 5 Cox, C. C. 339, 1851; Reg. v. Bubb, 4 Cox, C. C. 455, 1850. 4Reg. v. Ryland, L. R. 1 C. C. 99, 10 Cox, C. C. 569, 37 L. J. Mag. Cas. N. S. 10, 17 L. T. N.S. 219, 16 Week. Rep. 280. § 485] HOMICIDE. 667 for aid himself, and is at full liburty so to do, then the parent’s neglect to supply his wants is not the subject of indictment.° Nor can the parent’s conscientious errors of judgment in matters of medical treatment be at common law punished.° Much doubt exists as to the legal obligation of a father to support an illegitimate child, though as to the fact of the moral duty there can be no question.” Pufendorf tells us* that “main- tenance is due not only to legitimate children, but even to in- cestuous issue.” But be this as it may, it is clear that when a party assumes the guardianship of a child, whether as putative or step parent, he becomes responsible for mismanagement or neglect.® A married woman, however, cannot be convicted of the mur- der of her illegitimate child, three years old, by withholding from it proper food, unless it be shown that her husband sup- plied her with food to give the child, and she wilfully withheld it.2° To place a helpless infant child in such a position that it can- not live is murder if the intent be to kill; and manslaughter if the desertion be negligent.” § 485. —So as to master and apprentice, and master and servant. The same general principles are applicable to prosecutions against masters for neglect of their servants and apprentices, resulting in death." 5 Supra, § 460; infra, 1907; Reg. v. Shepherd, 9 Cox, C. C. 123, 1862, Leigh & C. C. C. 147, 31 L. J. Mag. Cas. N. S. 102, 8 Jur. N. S. 418, 5 L. T. N. S. 687, 10 Week. Rep. 297. 6 Supra, § 461. 7Nichole v. Allen, 3 Car. & P. 36, 1827. 8bk. 4, chap. 11, § 6. ® [Eng.] Cooper v. Martin, 4 East, 77, 1803; Stone v. Carr, 3 Esp. 1. [Cal.] Murdock v. Murdock, 7 Cal. 511, 1857. [Ill] Brush v. Blanch- ard, 18 Ill. 46, 1857. [Mo.] Gillett v. Camp, 27 Mo, 541, 1858. [N. Y.] Williams v. Hutchinson, 3 N. Y. 312, 58 Am. Dec. 301, 1850; Sharp y. Cropsey, 11 Barb. 224, 1852. [N. C.] Hussey v. Roundtree, 44 N. C. (Busbee, L.) 110, 1852. [Pa.] Lantz v. Frey, 14 Pa. 201, 1850. See Schouler, Dom. Rel. 378. 10Rex v. Saunders, 7 Car. & P. 277, 1835. 11 Reg. v. Walters, Car. & M. 164, 1841; Rex v. Ridley, 2 Campb. 650, 653; Reg. v. Waters, Temple & M. 57, 1 Den. C. C. 356, 2 Car. & K. 864, 18 L. J. Mag. Cas. N. S. 53, 13 Jur. 138, 3 Cox, C. C. 300, 1849; Reg. v. Phillpott, Dears. C. C. 179, 6 Cox, C. C. 140, 22 L. J. Mag. Cas. N. 8. 1138, 17 Jur. 399, 1 Week. Rep. 314, 1853. Supra, §§ 198, 456, 460, 483. 1Self’s Case, 1 East, P. C. 226, 1776, 1 Leach, C. L. 137; R. v. Squire, 1 Russell, Crimes, 9th Am. ed. 627, 1799; Rex v. Ridley, 2 Campb. 650; Anohymous, 5 Cox, C. C. 279, 1851; Sellen v. Norman, 4 Car. & P. 80, 1829; Reg. v. Smith, 8 Car. & P. 153, 1838. Master is legally liable for failure CRIMINAL LAW. [g 486 668 § 486. —So of jailers and other guardians. Whoever as- sumes the special charge of a helpless person is indictable for manslaughter if he cause the death of such person by withhold- ing the necessaries of life.’ This rule undoubtedly applies to jailers and almshouse keepers, and persons undertaking the vol- untary charge of lunatics.* It has been correctly extended in England to a person who undertakes the special nursing and care of another who is sick or otherwise helpless.® But it is necessary that the guardianship should be special.* And, as has already been seen,° a brother, omitting to supply his idiot brother with food, is not, in default of proof of such obligation, indictable for the omission.® It is otherwise if the control be exclusive and absolute.” § 487. Physician liable for lack of ordinary diligence and skill. One who professes to be a physician, and is called in as such, is bound to apply to his patient the care and skill which good physicians of his particular school are accustomed to apply under similar circumstances. If he does not possess the skill or apply the care usual among good practitioners of his school under the circumstances, and his patient dies in conse- quence of his neglect, then he is chargeable with manslaughter.” to furnish medical attendance. Reg. L. J. Mag. Cas. N. S. 105, 10 Jur. v. Smith, Leigh & C. C. C. 607, 1865, 10 Cox, C. C. 82, 34 L. J. Mag. Cas. N. S. 153, 11 Jur. N. S. 695, 12 L. T. N. S. 609, 13 Week. Rep. 816, R. v. Davies, 1 Russell, Crimes, 9th Am. ed. 679, 1831; Reg. v. Crumpton, Car. & M,. 597, 1842. See these cases detailed in Whar- ton, Homicide, §§ 137-8. Compare: Supra, § 460; § 1907. 1Supra, § 458; infra, § 1907. 2 Reg. v. Porter, Leigh & C. C. C. 394, 1864, 9 Cox, C. C. 449, 33 L. J. Mag. Cas. N.S. 126, 10 Jur. N. 8. 547, 10 L. T. N. S. 306, 12 Week. Rep. 718, 1796; Rex v. Treeve, 2 East, P. C. 821; Rex v. Warren, Russ. & R. C. C. 48 note, 1820; Rex v. Booth, Russ. & R. C. C. 47, note, 1796, and other cases cited supra, § 458. 8 Reg. v. Marriott, 8 Car. & P. 425, 1838. 4Reg. v. Pelham, 8 Q. B. 959, 15 infra, 659, 2 Cox, C. C. 17, 1846. 5 Supra, § 456; infra, §§ 1880 et seq. 6 Rex v. Smith, 2 Car. & P. 449, 1826. 7Reg. v. Porter, Leigh & C. C. C. 394, 9 Cox, C. C. 449, 33 L. J. Mag. Cas. N. S. 126, 10 Jur. N. 8. 547, 10 L. T. N. S. 306, 12 Week. Rep. 718, 1864; Reg. v. Edwards, 8 rae & P. 611, 1838. Supra, §§ 455, 1 Wharton, Neg. § 730. As to question of causal relation, supra, § 199. This subject is discussed at large in 3 Wharton & S. Med. Jur. §§ 765 et seq. See Bost. Med. Jour., Dec. 4, 1884, 544. See State v. Reynolds, 42 Kan. 320, 16 Am. St. Rep. 483, 22 Pac. 410, 1889. 2 [Eng.] Rex v. Spiller, 5 Car. & P, 888, 1882; Rex v. Senior, 1 Moody, C. C. 346, 1 Lewin, ©. C. 183, 1832; Rex v. Williamson, 3 Car. & P. § 489] HOMICIDE. 669 The burden is on the prosecution in such a case to prove the physician’s negligence.® § 488. —Not responsible if patient was direct cause of injury. Ifthe patient, by refusing to adopt the remedies of the physician, frustrates the latter’s endeavors, or if he aggra- vates the case by his misconduct, he cannot charge to the physi- cian the consequences due distinctively to himself. The ques- tion of assent on the part of the patient is to be determined by all the circumstances in the case.® § 489. —No difference between licensed and unlicensed practitioner. It was at one time held in England that persons not graduated and licensed as physicians are to be held to a severer accountability than persons who are so graduated and licensed. But the law now is, that the want of a degree (unless 635, 1829; Webb’s Case, 1 Moody, & R. 405, 2 Lewin, C. C. 196, 1841; Rex v. Long, 4 Car. & P. 398, 1830; Reg. v. Whitehead, 3 Car. & K. 202. See Reg. v. Chamberlain, 10 Cox, C. C. 486, 1867; Reg. v. Spencer, 10 Cox, C. C. 525, 1867; Reg. v. Mar- kuss, 4 Fost. & F. 356, 1864; Reg. v. Macleod, 12 Cox, C. C. 534, 1874; Matheson’s Case, 1 Swinton, 593. [Ark.] State v. Hardister, 38 Ark. 605, 42 Am. Rep. 5, 1880; [Fla.] Hampton v. State, 50 Fla. 55, 39 So. 421, 1905. [Ky.] Com. v. Green, 80 Ky. 178, 1882. [Mass.] Com. v. Thompson, 6 Mass. 134, 1809; Com. v. Pierce, 188 Mass. 165, 52 Am. Rep. 264, 5 Am. Crim. Rep. 391, 1884. [N. M.] Territory v. Yee Dan, 7 N. M. 489, 87 Pac. 1101, 1894. [N. C.] State v. Hildreth, 31 N. C. (9 Ired. L.) 440, 51 Am. Dec. 369, 1849. [Tenn.] Ann v. State, 11 Humph. 159, 1850. [Wash.] State v. Gile, 8 Wash. 12, 35 Pac. 417, 1894, See also 3 Wharton & S. Med. Jur. § 765. For cases at large, see Wharton, Homicide, §§ 148, 144. Applying kerosene to patient’s body recklessly, from the effects of which patient dies, the physician may be convicted of manslaughter, although there was no evil intent. Com. v. Pierce, 188 Mass. 165, 52 Am. Rep. 264, 5 Am. Crim. Rep. 391, 1884. Error of judgment or an inadvert- ent mistake on part of an attend- ing physician, by reason of which the patient dies, where the phy- sician has done nothing that a skil- ful person might not do, he is not liable. Hampton v. State, 50 Fla. 55, 39 So. 421, 1905. Prescribing with foolhardy pre- sumption, or gross recklessness, course of treatment which causes death of patient, physician may be found guilty of manslaughter, not- withstanding that he acted with the consent of the patient, and without any evil intent. Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264, 5 Am. Crim. Rep. 391, 1884. 3 Reg. v. Bull, 2 Fost. & F. 201, 1860; Reg. v. Spencer, 10 Cox, C. C. 525, 1867; State v. Schulz, 55 Iowa, 628, 39 Am. Rep. 187, 8 N. W. 467, 1881, discussed in 3 Whar- ton & S. Med. Jur. § 765. Reasonable doubt must acquit. See Brown v. State, 38 Tex. 482, 1873. 1Supra, §§ 199, 204, 205; Candless v. McWha, 22 Pa. 1853, 25 Pa. 95. Qualifications of doctrine in Hib- bard v. Thompson, 109 Mass. 286, 1872; Brown v. State, 38 Tex. 482, 1873. 2Supra, § 184. 14 Bl. Com. 197; 1 Hale, P. C. 429; Brit. chap. 5; 4 Inst. 251; R. Mce- 261, CRIMINAL LAW. [§ 489 670 there be a special statute on the subject) adds nothing to the grade of the offense wherc there is no deceit, if there be a bona fide and honest attempt by the defendant to do his best, and if he possess skill and knowledge requisite for the position he claims.* On the other hand, whoever undertakes to deal with a dangerous remedy ought to acquaint himself with its proper- ties; and if, from ignorance of what he ought to know and pro- fesses to know, the death of the patient ensues, he is indictable for manslaughter.’ It is true that a more lenient view has been taken by high authorities in this country ;* it being held that it is a defense in such cases that the defendant’s ignorance was honest. But this only holds good where such ignorance is excusable. A layman, for instance, advising a quack medicine on the faith of its general reputation, would not be responsible for the bad consequences. It would be otherwise with respect to ignorance of a matter with which it is the party’s duty to be acquainted.’ A specialist, therefore, who ignorantly applies dangerous remedies which prove fatal, but with whose character he ought to have been acquainted, is indictable for manslaugh- ter.® § 490. —Culpable ignorance in any view imposes liability. Hence, whatever may have been the views expressed in some of the earlier cases,’ a person practising medicine or surgery is bound to know the nature of the remedies he pre- scribes, and the treatment he v. Simpson, Willcock’s L. Med. Prof. Append. 227. 2Rex v. Van Butchell, 3 Car. & P. 629, 1829; Rex v. Williamson, 3 Car. & P. 635, 1829; Rex v. Spil- ler, 5 Car. & P. 338, 1832, coram Bolland, B., and Bossanquet, J. See also Lanphier v. Phipos, 8 Car. & P. 475, 18388, where Tindal, C. J., said: “Kvery person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is an attorney, that at all events you shall gain your cause; nor does a surgeon undertake that he will per- form a cure, nor does he undertake to use the highest possible degree of skill. There may be persons who adopts; and he is responsible have higher education and greater advantages than he has; but he undertakes to bring a fair, reason- able, and competent degree of skill” See Rex v. Simpson, 1 Lewin C. C. 172; Rex v. Ferguson, 1 Lewin, C. C. 181, 1830; Com. v. Thompson, 6 Mass. 1384, 1809. 3See 3 Wharton & S. Med. Jur. § 765. *State v. Schulz, 55 Iowa, 628, 39 Am. Rep. 187, 8 N. W. 469, 1881; Rice v. State, 8 Mo. 561, 1841. 5 Wharton, Neg. §§ 415 et seq. 6 Com. v. Preece, 140 Mass. 276, 5 N. K. 494, 5 Am. Crim. Rep. 107, 1884, 1Com. v. Thompson, 6 Mass. 134, 1809. § 492] HOMICIDE. 671 criminally for any injuries resulting from his ignorance in this relation.” A fortiori, where he is pursuing a plan of bold im- posture, he is liable for injuries produced by his ignorance, and this whether he be with or without a degree.° § 491. —Careless or ignorant use of dangerous agent is negligence. Proof of the use or administration of danger- ous agencies by an incompetent person is evidence from which culpable negligence can be inferred.’ § 492. —Gratuitousness does not affect case. It matters not whether the medical man is dealing with a patient as a feed physician or as a volunteer friend. Thus in a case tried before Denman, J., in 1874, the defendant, a physician, was charged with negligently killing his wife by an overdose of muriate of morphine. Judge Denman correctly charged the jury “that it made no difference whether a medical man was dealing with a patient, or, as a volunteer, dealing with a friend, or with his wife.” “If the drug was administered without want of skill and intending to do for the best,—doing nothing, in fact, that a skilful man might not do,—then if the jury merely thought it was some error of judgment which anybody might have committed, the prisoner should be acquitted.” ? 2See supra, §§ 468, 470. 3Supra, § 487. [Eng.] Rex v. Long, 4 Car. & P. 398, 1831; Reg. v. Macleod, 12 Cox, C. C. 534, 1874. See [Ala.] Holmes v. State, 23 Ala. 17, 1852. [Ark.] State v. Hardister, 88 Ark. 605, 42 Am. Rep. 5, 1881. (Mass.] Com. v. Stratton, 114 Mass. 208, 19 Am. Rep. 350, 1873. [Tenn.] Ann vy. State, 11 Humph. 159, 1850. 1 Reg. v. Crick, 1 Fost. & F. 519, 1859; Reg. v. Crook, 1 Fost. & F. 521, 1859; Reg. v. Markus, 4 Fost. & FP. 356, 1864; Reg. v. Chamberlain, 10 Cox, C. ©. 486, 1867. Careless or ignorant attention to woman on confinement.—Where the prisoner, a person ignorant and rash, was charged with manslaughter upon an indictment which alleged that he uadertook, as a man midwife, the care and charge of B. K., and to do everything needful for her during and after the time of her delivery, aad that after B. K. was delivered he neglected to take proper care of and to render her proper assist- ance, by means whereof she died; Tindal, C. J., said to the jury: “You are to say whether, in the execution of that duty which the prisoner had undertaken to perform, he is proved to have shown such a gross want of care, or such a gross and culpable want of skill, as any person under- taking such a charge ought not to be guilty of; and that the death of the person named in the indictment was caused thereby.” Ferguson’s Case, 1 Lewin, C. C. 181, 1830. If this be the case stated in Long’s Case, the prisoner was a blacksmith, drunk, and wholly ignorant of the proper steps to be taken; no evi- dence is stated in Lewin. See 1 Russell, Crimes, 9th Am. ed. 693, 694; and see also Rex v. Webb, 1 Moody & R. 405, 1841; 2 Lewin, C. C. 196; Reg. v. Spilling, 2 Moody & R. 107, 1843. 1Reg. v. Macleod, 12 Cox, C. C. 534, 1874. Patient’s misconduct — Effect on physician’s liability—The question, CRIMINAL LAW. [§ 493 672 § 493. —Apothecaries and chemists liable on same prin- ciples. An apothecary’s apprentice who is guilty of negligence in delivering medicine, when death ensues in consequence, is guilty of manslaughter. But if the mistake be made under such circumstances as would perplex an ordinarily prudent man, there should be, it seems, an acquittal.? § 494. Persons running machinery must exercise care in proportion to danger. It has been already stated that in the use of dangerous instruments care must be applied in pro- portion to danger.” This principle applies both to manufac- turers by whom defective material is used or defective work- manship applied, and to workmen who are guilty of negligence in their application of such powers to practical use.” The jury should be directed, however, to acquit, if the care usual with good workmen under similar circumstances was shown.® how far the physician’s liability is affected by the patient’s misconduct, or by concurrent diseases, is dis- cussed supra, §§ 193-211. 1Tessymond’s Case, 1 Lewin, C. C. 169, 1828. Supra, § 471. For an indictment against a drug- gist for manslaughter, through neg- ligently compounding a prescription, see State v. Smith, 66 Mo. 92, 1877. 2Reg. v. Noakes, 4 Fost. & F. 920, 1866. Supra, § 471. 1837; cited supra, §§ 195, 462. 1Supra, § 462. 2Rex v. Carr, 8 Car. & P. 163, 1837, cited supra, §§ 195, 462. 8 Rigmaidon’s Case, 1 Lewin, C. C. 180, 1833; Fenton’s Case, Lewin, C. C. 179, 1833. Care in running machinery, etc.— An indictment charged that there was a scaffolding in a certain coal mine, and that the prisoners, by throwing large stones down the mine, broke the scaffolding; and that in consequence of the scaffolding be- ing so broken, a corf, in which the deceased was descending the mine, struck against a beam, on which the scaffolding had been supported, and by such striking the corf was overturned, and the deceased precipi- tated into the mine and killed. It was proved that scaffolding was usually found in the mines in the neighborhood, for the purpose of supporting the corves, and enabling the workmen to get out and work the mines; that the stones were of a size and weight sufficient to knock away the scaffolding, and that if the beam only was left, the proba- ble consequence would be that the corf striking against it would upset, and occasion death or injury. Tin- dal, C. J., said: “If death ensues as the consequence of a wrongful act, an act which the party who commits it can neither justify nor excuse, it is not accidental death, but manslaughter. If the wrongful act was done under circumstances which show an intent to kill, or do any serious injury in the par- ticular case, or any general malice, the offense becomes that of murder. In the present instance the act was one of mere wantonness and sport, but still the act was wrongful; it was a trespass. The only question therefore is, whether the death of the party is to be fairly and reason- ably considered as a consequence of such wrongful act; if it followed from such wrongful act, as an effect from a cause, the offense is man- slaughter; if it is altogether un- connected with it, it is accidental § 496] HOMICIDE. 673 § 495. —So when death is caused by negligent deser- tion of post. For a person charged specially with dangerous machinery to desert without notice, and leave an incompetent substitute in his place, makes him liable for death caused by the incompetency of such substitute.’ But a person not leaving machinery in the public path is not liable for injuries caused by the interposition of an independent responsible agent.* IV. Kitire in Atruvetic Sports. § 496. Prize fighters liable for manslaughter in case of nonmalicious killing of antagonist. On the same principle that parties engaged in a duel are guilty of murder if death ensue, persons engaged in prize fighting with the same result are guilty of manslaughter. The difference between the cases is simply that of intent. In the first instance, there is an intent to take life; in the second, an intent merely to do an unlawful act not amounting to felony. But if, in prize fighting, a party goes out with an original intent to do grievous bodily harm to his antagonist, and slays him, the offense is murder at common law, or murder in the second degree under the American stat- utes. And so if he goes with the intention to kill, no matter what may have been the motive, the offense is murder. If, how- ever, the guilty intent arises in hot blood, in the excitement of the struggle, and without the intervention of cooling time, the offense is but manslaughter; and under such circumstances all sion to ventilate a mine is in like manner manslaughter. Reg. v. death.” Fenton’s Case, 1 Lewin, C. C. 179, 1833. Person charged with duty — Fail- ure to put staging over shaft.— The deceased was with others em- ployed in walling the inside of a shaft. The defendant was engaged to put a stage over the mouth of the shaft, but from his omission to perform this duty the deceased was killed. The defendant was held on this evidence to be rightfully con- victed of manslaughter. Reg. v. Hughes, Dears. & B. C, C. 248; 7 Cox, C. C. 301, 26 L. J. Mag. Cas. N. S. 202, 3 Jur. N. 8. 696, 5 Week. Rep. 732, 1857. See supra, §§ 170, 462. —Homicide from negligent omis- Crim. L. Vol. I.—43. Haines, 2 Car. & K. 368, 4 Mor. Min. Rep. 174, 1847. 1 Reg. v. Lowe, 3 Car. & K. 123, 4 Cox, C. C. 449, 4 Mor. Min. Rep. 180, 1850; Com. v. Hamilton, 26 Phila, Leg. Int. 68, 1867. See supra, § 167. 2Rex v. Hilton, 2 Lewin, C. C. 214, 1835. This case can only be sustained on the ground that the steam engine was not in the public path. The same distinction may be taken as to elevators in private houses, the proprietors of which are not responsible for the interference of meddlers. 674 CRIMINAL LAW. [§ 496 participants encouraging a prize fight in which death ensues are also guilty of manslaughter.’ § 497. —And so of participants in unlawful sports. When death occurs as an incidental consequence of an unlawful sport, it is manslaughter in all concerned in promoting the act which immediately caused the death. This principle has been applied in England to all present encouraging not only boxing matches, but other sports of a similar kind, which are exhibited for lucre, on the ground that they tend to encourage idleness by drawing together'a number of disorderly people, and hence in- volve a criminal responsibility." In such cases the intention of the parties is not innocent in itself, each being careless of what hurt may be given, provided the promised reward or applause be obtained; and meetings of this kind have also a strong ten- 1 Rex v. Murphy, 6 Car. & P. 103, 1833; Reg. v. Young, 8 Car. & P. 644, 1838; and see supra, §§ 272, 578, as to limitations. So far as the opinion of Littledale, J., in Rex v. Murphy, goes to affirm that all present at a prize fight are indict- able, it is overruled by Reg. v. Coney, L. R. 8 Q. B. Div. 543, 15 Cox, C. C. 46, 51 L. J. Mag. Cas. N. S. 66, 46 L. T. N. S. 307, 830 Week. Rep. 678, 46 J. P. 404. See infra, §§ 835, 1107; § 250. As to liability in such cases, see ‘infra, § 835. 1Fost. C. C. 260. 246. Sparring exhibitions — Death in. —lIn Reg. v. Young, 10 Cox, C. C. 371, 1866, it was held by Bramwell, B., at the Central Crim. Court, that there is nothing unlawful in a spar- ring exhibition unless the men fight on until they are so weak that a dangerous fall is likely to be the result of the continuance of the game. Therefore, except in the lat- ter case, death caused by an injury received during a sparring match does not amount to manslaughter. On the other hand, even in an in- nocent game, killing consequent on an attempt to seriously hurt, or on negligence in use of excessive strength, is manslaughter. Reg. v. supra, See supra, § Bradshaw, 14 Cox, C. C. 83. See infra, § 838; supra, § 182. —Spectators at—In Reg. v. Or- ton, 39 L. T. N. 8. 293, 14 Cox, C. C. 226, 1878, the evidence was that a number of persons assembled in a room, entrance money being paid, to witness a fight between two per- sons. The combatants fought in a ring with gloves, each being at- tended by a second, who acted in the same way as at prize fights. The combatants fought for about forty minutes with great ferocity, and severly punished each other. The police interfered and arrested the defendants, who were among the spectators. It was held that if this was a mere exhibition of skill in sparring, it was not illegal; but if the parties met intending to fight till one gave in from exhaustion or injury received, it was a breach of the law and a prize fight, whether the combatants fought in gloves or not. It was subsequently held, however, that mere voluntary pres- ence at such a fight does not make the party so present guilty of aiding and abetting. Reg. v. Coney, L. R. 8 Q. B. Div. 534, 15 Cox, C. C. 46, 1881; 46 L. T. N. S. 307, 51 L. J. Mag. Cas. N. S. 66, 30 Week. Rep. 678, 46 J. P. 404; supra, § 245. See comments in Law Times, Dec. 17, 1881, p. 111. § 498] HOMICIDE. 675 dency in their nature to a breach of the peace.* Nor does provocation operate to acquit. Thus ina case of old date, where the prisoner had killed his opponent in a boxing match, it was held that he was guilty of manslaughter; though he had been challenged to fight by his adversary in public trial of skill in boxing, and was also urged to engage by taunts, and the occasion was sudden.* Hence the English custom of cock throwing, at Shrovetide, has been considered unlawful and dangerous; and accordingly, where a person throwing at a cock missed his aim, and killed a child who was looking on, Mr. J. Foster ruled it to be manslaughter; and, speaking of the custom, he says: “It is a barbarous, unmanly custom frequently productive of great disorders, dangerous to the bystanders, and ought to be dis- couraged.”* So throwing stones at another wantonly in play, being a dangerous sport, without the least appearance of any good intent, or doing any other such idle action as cannot but endanger the bodily hurt of some one or other, and by such means killing a person, will be manslaughter.® § 498. —But not so in lawful athletic sports. Persons who take part in lawful athletic games, and fairly follow the rules belonging to such games, are not responsible for deaths accidentally resulting therefrom.’ But in such cases, if the weapons used are of a dangerous and unsuitable character, and are employed with recklessness which leads to death, the of- fender, in case of death, is guilty of manslaughter. Thus, in an early English case, the evidence was that Sir John Chichester made a pass at his servant with a sword in the scabbard, and the servant parried it with a bed staff, but in so doing struck off the chape of the scabbard, whereby the end of the sword came out of the scabbard ; and the thrust not being effectually broken, the servant was killed by the point of the sword.? This was adjudged manslaughter ; and Mr. J. Foster thinks, in conformi- ty with Lord Hale, that it was rightly so adjudged, on the ground that there was evidently a want of common caution in 21 East, P. C. chap. 5, § 42, p. 1See Com. v. Lewis, Addison (Pa.) 270. ‘279, 1796; and see more fully, argu- 8 Ward’s Case, 1 East, P. C. 270, ment in Wharton, Homicide, § 163; 1789. as to assaults, infra, § 636; Fenton’s 4 Fost. C. L. 261. Case, 1 Lewin, C. C. 179, 1833. In- 51 Hawk. P. C. chap. 29, § 5. See fra, § 838. infra, § 833. 21 Hale, P. C. 472. 676 CRIMINAL LAW. [§ 498 making use of a deadly weapon in so violent an exercise, where it was highly probable that the chape might be beaten off, which would necessarily expose the servant to great bodily harm.* But, notwithstanding these high authorities, it may now be ques- tioned whether, in this case, the application of the principle is as correct as the principle itself. If the practising of this kind in fencing—which was the sport in which Sir John Chichester was engaged—is lawful, it would seem that the bursting of the sword through the chape of the scabbard was a mere misad- venture. The design of the scabbard is to render the sword harmless, and a man who carries his sword about his person assuredly gives the best evidence in his power of his confidence in the sufficiency of the guard. If it is lawful to carry such a weapon, it assuredly is lawful to use it when properly guarded from mischief. The whole question, therefore, turns on the point whether the particular exercise in which Sir John Chi- chester was engaged was one likely to disengage the sword from the scabbard. § 499. In practical jokes responsibility attaches. But where the death occurs not as incident to a game whose risks all the participants know in advance, but as the result of a prac- tical joke which was a surprise on the deceased, then, though there was no malice, the defendant is responsible for man- slaughter, when the death is imputable to physical agencies put in motion by himself. In accordance with this view it has been held manslaughter to cause death by ducking another; ? by building a fire round a drunken man in order to frighten him, he afterward rolling into the fire, which was not placed so near as to endanger him if he had laid still;* by shooting with a gun, though for the mere purpose of alarming;* by thowing stones into a coalpit in sport;® by upsetting a cart as 3 Ibid. 473; Fost. C. L. 260. 1 Rex v. Sullivan, 7 Car. & P. 641; State v. Hardie, 47 Iowa, 647, 29 Am. Rep. 496, 2 Am. Crim. Rep. 326, 1877. See article in 22 Alb. L. J. 184; and see cases cited supra, § 469. 21 East, P. C. 236. 8 Rex v. Errington, 2 Lewin, C. C. 217, 1835. 4State v. Roane, 13 N. C. (2 Dev. L.) 58, 1829. Supra, § 344. Pistol shot in frolic—And so when the pistol was shot only as a frolic. State v. Hardie, 47 Iowa, 647, 29 Am. Rep. 496, 2 Am. Crim. Rep. 326, 1877; Smith v. Com. 100 Pa. 324, 1882. 6 Fenton’s Case, 1 Lewin, C. C. 179, 1833. Infra, § 828; supra, § 300. See Hill-v. State, 63 Ga. 578, 36 Am. Rep. 120, 1879. § 500] HOMICIDE. 677 a joke;® by administering, as a joke, excessive quantities of intoxicating liquor.” But when a piece of turf was thrown in sport by one of a party digging it at another, and death ensued, an acquittal was directed.® V. Correction By Person 1n AUTHORITY. § 500. Killing by undue correction, manslaughter. When death ensues in consequence of correction by parents, mas- ters, and others having lawful authority, and such correction is considered only reasonable, the death will be treated as acci- dental. Where, however, the correction exceeds the bounds of due moderation, either in the measure of it, or in the instru- ment made use of for the purpose, it will be either murder or manslaughter, according to the circumstances.* If done with a cudgel, or other thing not likely to kill, though improper for the purpose of correction, it will be manslaughter ;* if with a dan- gerous weapon, likely to kill or maim, and with cruelty, it will be murder; due regard being had in both instances to the age and strength of the party.* 6 Rex v. Sullivan, 7 Car. & P. 641, 1836. In this case a cartman was in the front part of a cart, loading it with sacks of potatoes, and a boy pulled the trapstick out of the front of the cart, but not with intent to do the man any harm, as he had seen it done several times before by others; and in consequence of the trapstick having been taken out, the cart tilted up, and the deceased was thrown out on his back on the stones, and the potatoes were shot out of the sacks, and fell on and covered him over, and he died in consequence of the injuries then re- ceived. It was held that as the intent was to commit a mere tres- pass, the boy was guilty of man- slaughter. 7 Reg. v. Martin, 3 Car. & P. 211, 1827; Reg. v. Packard, Car. & M. 236, 1841. Supra, § 472. 8R. v. Conrahy, 2 Craw. & D. (Ir.) 86, 1844; supra, § 162. 11 East, P. C. 261, supra, § 300. 2[Ky.] Montgomery v. Com. 23 Ky. L. Rep. 732, 63 S. W. 747, 1901. So, as was said in a case already [Miss.] Kelly v. State, 3 Smedes & M. 518, 1844; Powell v. State, 67 Miss. 119, 6 So. 646, 1889. [N. C.] State v. Hoover, 20 N. C. (4 Dev. & B. L.) 365, 34 Am. Dec. 383, 1839. [S. C.] State v. Fleming, 2 Strobh. L. 464, 1848. [Tenn.] Nelson v. State, 10 Humph. 518, 1850. [Tex.} Wilson v. State, 29 Tex. 240, 1867. [Va.] Souther v. Com. 7 Gratt. 673, 1851. : Correction with instrument im- proper for the purpose, but not dead- ly, or with a proper instrument in an improper degree, if death results the offense is manslaughter. Mont- gomery v. Com. 23 Ky. L. Rep. 732, 63 8S. W. 747, 1901. Reg. v. Griffin, 11 Cox, C. C. 402, 1869, where death from a blow given by a father to a child, two and a half years old, was held manslaugh- ter; and see Rex v. Conner, 7 Car. & P. 438, 1836. 3 Anonymous, 1 East, P. C. 261. 4Fost. C. L. 262; J. Kelyng, 28, 133; 1 Hale, P. C. 454, 457, 478, 474; Hazel’s Case, 1 Leach, C. J. 368, 678 CRIMINAL LAW. [§ 500 cited, if a seaman is in a state of great debility and exhaustion, so that he cannot go aloft without danger of death or enormous bodily injury, and the facts are known to the master, who not- withstanding compels the seaman, by moral or physical force, to go aloft, persisting with brutal malignity in such course, and the seaman falls from the mast and is drowned thereby, and his death is occasioned by such misconduct in the master, under such circumstances it is murder in the master. If there be no malice in the master, the crime is reduced to manslaughter.’ So if a father, without malice, beats his son for theft so severely with a rope that he dies, it is only manslaughter ; if with malice, it is murder; and so for a person in loco parentis to cruelly overwork or maltreat a child, producing its death.’ A schoolmaster who, on a boy’s return to school, wrote to his parents, proposing to beat him severely, in order to subdue his alleged obstinacy, and on receiving his father’s reply, assenting thereto, beat the boy for two hours and a half secretly in the night, and with a thick stick, until he died, was held guilty only of manslaughter, no malice being proved.® VI. Srarurory Distinctions, § 501. Old English law indifferent to gradations of guilt. According to the older common-law authorities, not only was it murder to kill another, though the intent was merely to severely hurt, but it was considered murder if homicide were 1785; Rex v. Conner, 7 Car. & P. 438, 1836; Rex v. Cheeseman, 7 Car. & P. 455, 1836; State v. Harris, 63 N. C. 1, 1871, a case of death by extremely cruel chastisement by one in loco parentis. For other cases, see infra, §§ 828- 831. 5United States v. Freeman, 4 Mason, 505, Fed. Cas. No. 15,162, 505, 1827. See United States v. Knowles, 4 Sawy. 517, Fed. Cas. No. 15,540, 1864, cited supra, § 462. / 6 Anonymous, 1 East, P. C. 261. Infra, § 828. 7Rex.v. Cheeseman, 7 Car. & P. 455, 1836. See 2 Twiss’s Lord El- don, 36; State v. Harris, 63 N. C. 1, 1871. Supra, § 485. 8 Reg. v. Hopley, 2 Fost. & F. 202, 1860. Infra, §§ 826-829. See Com. v. Randall, 4 Gray, 36, 18565. As to schoolmaster’s right to chas- tise, see infra, § 829. § 502] HOMICIDE. 679 unintentionally committed by a person when engaged in a col- lateral felony. It is true that so long as all killing incidental to a felonious purpose was punishable with death there was no practical call for a classification of such killings. But when under humaner auspices it was felt that death should only be assigned as a punishment to homicides specifically and ma- liciously intended, it was found necessary to distinguish between this class of murders and murders in which there was no such intent. It was for this purpose that legislative action was in- voked. The statute, however, in which the distinction first found formal expression was not a law imposed by the legisla- ture of the people, but a law which had grown into practical acceptance with the people, and had then been put into technical shape by the legislature. Juries for generations had refused to convict for murder unless a specific intent to take life had been shown; or, if they did convict, when there was no such proof, it was with a recommendation to mercy, which withdrew from the sentence at least the incident of punishment by death." § 502. General analysis of statutes. By the following an- 1Evolution of degrees of murder. —This process of evolution is thus stated: “Pennsylvania may be taken as a conspicuous illustration of the position that, at least in the earlier stages of a community, laws, mould- ed by the conditions of a people, are inspired by its conscience and needs, and not dictated by a sovereign. Pennsylvania was in part settled by English colonists, who, it has been repeatedly declared, brought with them the English common law. In Pennsylvania, down to the Revolu- tion, the British Parliament was as absolute as in England. Yet not enly did the judges of the Supreme Court, in answer to a request from the legislature, announce that nu- merous of the oldest British stat- utes had never been in force in the state, but they declared, as a rule, that British statutes, made even be- fore the settlement of the province, were not in force in it unless ‘con- venient and adapted to the circum- stances of the country.’ The judges do not say, ‘we decide that these statutes are not to be regarded as hereafter in force.’ What they vir- tually say is: ‘These statutes never were in force here. But why? They had been enacted by the British Parliament, many of them before Pennsylvania had been settled; and a series of other statutes were de- clared to be in force because enact- ed by the British Parliament; this being held to be the case with the statute of limitations, 32 Hen. VIIL; the statute of additions, 1 Hen. V.; the statute of escapes, 13 Edw. I.; and, what is still more remarkable, the statutes of mortmain. Whar- ton, Am. Law, § 23. It was in this way that capital punishment fell into gradual disuse in Pennsylvania in all but murder cases; and even in murder the distinction of degrees, as now existing, was adopted in practice before it was formulated in legislation.” 680 CRIMINAL LAW. [§ 502 alysis the distinctive features of the statutes of several states can be seen at a glance: MURDER IN THE FIRST DEGREE. ENUMERATED INSTANCES. GENERAL DEFINITION. Maine New Hampshire Massachusetts New York Pennsylvania Connecticut New Jersey Michigan Missouri Virginia Tennessee Murder “in perpetrating or attempHng. to perpetrate any crime punishable with death, or imprisonment in the state prison for life, or for an unlimited term of years.” Murder by “‘poison, starving, torture,” or “in the perpetration or attempt at the per- petration of arson, rape, robbery, or bur- glary.”” Murder ‘in the commission of or in an attempt to commit any crime punishable with imprisonment for life,! or committed with extreme atrocity or cruelty.”2 Murder “ when perpetrated without any design to effect death by a person engaged in the commission of any felony.”3 By 2 185 ot the Penal Code of 1882, this is extended so as to include attempt at felonies, | Murder “by means of poison, or by lying in wait,” or “in the perpetration or attempt to perpetrate any argon, rape, robbery, or burglary.” Ibid. Ibid. Ibid. Murder “by means of poison, or by lying in wait,” or “in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, orany other felony.” Murder “by poison, by lying in wait, im-| prisonment, starving, or by wiltul, deliber- ate, and premeditated killing, or other cruel treatment or torture,” orin “the commis- sion of or attempt to commit any arson,rape, robbery, or burglary." Murder committed ‘‘by means of poison, or by lying in wait,” or “in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or larceny.” Murder with ‘“ express malice aforethought.” Murder by “ deliberate and premeditated killing.” Murder “committed with deliberately premeditated malice aforethought.” Murder “‘first, when per- petrated from a deliberate and premeditated design to effect the death of the per- son killed, or of any human being. Second, when per- petrated by an act immi- nently dangerous to others, land evincing a depraved mind regardless of human life,+ although without any premeditated design to effect the death of any par- ticular individual.” “Such killing, unless it be murder lin the first degree, or man- slaughter, or excusable or justifiable homicide, shall be murder in the second degree when perpetrated intentionally, but without deliberation and premedi- tation.’’5 Murder perpetrated “by any other kind of wilful, deliberate, and premeditat- ed killing.” Tbid. Ibid. Ibid. Ibid. Ibid. Murder perpetrated ‘‘by any (oniery. kind of wilful, deliberate, malicious, and premeditated killing.” 1 This includes all crimes on which such punishment may be inflicted. Com. v. Pemberton, 118 Mass. 36, 1875. clause. #Death unintentionally caused by cruel beating is not within this Darry v. People, 2 Park. 2 As to what constitutes “extreme atrocity orcruelty,” see Com. Desmarteau, 16 Gray, 1, 1861; Com. v. Devlin, 126 Mass, 253, 1879. 8 See infra, §§ 506, 509. v. Crim, Rep. 606, 1855, 10 N. Y. 120, 1855. 5 Act of May 29, 1878. As to this statute, see Leighton, v. People, 88 N. Y. 117, 1882. § 503] HOMICIDE. 681 The earliest of these statutes was that of Pennsylvania, and was drafted by the first Mr. William Rawle and Mr. William Bradford, jurists as distinguished for their humanity as for their legal capacity. As the Pennsylvania statute has been reproduced in a majority of the states in the Union, it forms the basis of most of the adjudications which have been given under this head. § 503. Pennsylvania, etc., statute—Distinction between murder and manslaughter untouched—Intent to take life. The general definition of the Pennsylvania and cognate statutes does not affect the common-law distinction between murder and manslaughter ;? it simply divides murder into two classes: mur- der with a specific, deliberate intent to take life being murder in the first degree; murder without such an intent to take life being murder in the second degree. The statutes, it has been held, in requiring murder in the first degree to be deliberate, do not change the common-law doctrine in that respect with re- gard to murder; the existence of deliberation being necessary to both degrees.” The distinctive peculiarity attached by the statutes to murder in the first degree, however, is that it must necessarily be accompanied with a premeditated intention to take life. The “killing” must be “premeditated.” Wherever, then, in cases of deliberate homicide, there is a specific intention to take life, the offense, if consummated, is murder in the first degree ; * if there is not a specific intention to take life, it is murder in the second degree. Between murder (embracing under the terms both degrees) and manslaughter the distinction remains as at common law.* Intention, premeditation, and the 1See infra, § 514. other ingredients to be inferred from 2[Ala.] Ex parte Sloane, 95 Ala. 22, 11 So. 14, 1892. [Fla.] Marshall v. State, 32 Fla. 462, 14 So. 92, 1893. [Ohio] Jones v. State, 51 Ohio St. 331, 38 N. E. 79, 1894. [S. C.] State v. Workman, 39 S. C. 151, 17 S. E. 694, 1893. Compare: Brassfield v. State, 55 Ark. 556, 18 S. W. 1040, 1892. 3 People v. Hamilton, 137 N. Y. 531, 32 N. E. 1071, 1893; People v. Rohl, 138 N. Y. 616, 33 N. E. 933, 1893. the evidence. [Fla.] Yates v. State, 26 Fla. 484, 7 So. 880, 1890. [Mo.] State v. Brown, 119 Mo. 527, 24 S. W. 1027, 25 S. W. 200, 1893. [Tex.] Fields v. State, 31 Tex. Crim. Rep. 42, 19 S. W. 604, 1892. 4 [Fed.] Respublica v. Bob, 4 Dall. 145, 1 L. ed. 776, 1795. [Ark.] Palmore v. State, 29 Ark. 248, 1869. [Cal.] People v. Josephs, 7 Cal. 129, 1857; People v. Haun, 44 Cal. 96, 1872; People v. Doyell, 48 Cal. 85, 682 § 504. “Wilful” means specifically willed. CRIMINAL LAW. [§ 504 The doubt which arises from the term “wilful” has already been noticed. Can an unintended act be said to be wilful, and if so, can the 1874, [Del.] State v. Jones, Houst. Crim. Rep. (Del.) 21, 1863. [Fla.] Savage v. State, 18 Fla. 909, 1882. [Mich.] Nye v. People, 35 Mich. 16, 1875. Baker v. People, 40 Mich. 411, 3 Am. Crim. Rep. 170, 1879. [Mo.] State v. Shoultz, 25 Mo. 128, 1853. [Mo.] State v. Stoeckli, 71 Mo. 559, 1880; State v. Curtis, 70 Mo. 594, 1829. [Neb.] Milton v. State, 6 Neb. 136, 1877. [Nev.] State v. Raymond, 11 Nev. 98, 1876. [N. J.] State v. Spencer, 22 N. J. L. 196, 1848. [N. M.] Territory v. Romine, 2 N. M. 114, 1881. [Pa.] State v. Honeyman, Addison, (Pa.) 147, 1793; State v. Lewis, Addison, (Pa.) 279, 1796; Com. v. Green, 1 Ashm. (Pa.) 289, 1826; Com. v. Murray, 2 Ashm. (Pa.) 41, 1834; Com. v. Dougherty, 1 Browne (Pa.) XVIII, Appx. 1807; Com. v. Daley, 2 Clark (Pa.) 361; Com. v. Hare, 2 Clark (Pa.) 467, 1844; Com. v. Crause, 4 Ciark (Pa.) 500, 1846; Kelly v. Com. 1 Grant, Cas. 484, 1858; Com. v. Gable, 7 Serg. & R. 423, 1821; Com. v. Drum, 58 Pa. 9, 1868. [Tenn.] State v. Anderson, 2 Overt. 6, 5 Am. Dee. 648, 1804; Mitchell v. State, 5 Yerg. 340, 1833; Dale v. State, 10 Yerg. 551, 1837; Anthony v. State, Meigs, 265, 38 Am. Dec. 143, 1838; Brat- ton v. State, 10 Humph. 103, 1849; Warren v. State, 4 Coldw. 130, 1867; Petty v. State, 6 Baxt. 610, 1875. [Va.] King v. Com. 2 Va. Cas. 78, 1817 (in note); Burgess v. Com. 2 Va. Cas, 488, 1825; Com. v. Jones, 1 Leigh, 598, 1829; Slaughter v. Com. 11 Leigh, 681, 1341; White- ford v. Com. 6 Rand. (Va.) 721, 18 Am. Dec. 771, 1828. See, particularly, remarks of King, P. J., in Com. v. Daley, 2 Clark (Pa.) 361, 1844. Afterward adopted by Rogers, J., in the Supreme Court, in Sherry’s Case, Wharton, Homicide, 721, 1845. —Criticism on the conclusion in the text may be found in Atkinson v. State, 20 Tex. 522, 1860, where under a similar statute, it was held that to constitute murder in the first degree some degree of prior deliber- ation must be shown. This subject has been already discussed in its general bearings. Supra, §§ 137, 159; infra, §§ 506 et seq. As to Alabama, see Fields v. State, 52 Ala. 348, 1824; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1, 1877, —Distinction between Alabama and Pennsylvania statutes is given in Mitchell v, State, 60 Ala. 26, 1879. Delaware statute, while preserv- ing the common-law distinction be- tween murder and manslaughter, makes murder with express malice aforethought murder in the first de- gree, while murder in the second degree includes all other cases of common-law murder. This is held to exclude from murder in the first degree murder incidental to felonies. State v. Jones, Houst. Crim. Rep. (Del.) 21, 1868; State v. Buchanan, Houst. Crim. Rep. (Del.) 79, 1864; State v. Green, Houst. Crim. Rep. (Del.) 217, 1867; State v. Boice, 1 Houst. Crim. Rep. (Del.) 355, 1868. In Missour, which follows in the main the Pennsylvania precedents, the rule given in the text is quali- fied by the insertion, after “arson, rape, robbery, or burglary,” in the statute, of the words, “or any other felony.” The infliction of great bod- ily harm on another, though such injury does not amount to mp «7hem, being regarded a felony in “issouri, it was at first held that a murder committed incidentally t« the inflic- tion of such injury is mi cder in the first degree, though in Pinnsylvania, from the lack of a specttic intent to take life, it would be murder in the second degree. Thus in Sitate v. Jen- nings, 18 Mo. 438, 1853, the court below charged the jury that if they “believed from the evidence that it was not the intention of those con- cerned in lynching Willard to kill him, but that they did intend to de § 504] HOMICIDE, 683 homicide of one party when another was intended be such? It has been seen that on this point there exists some conflict of au- thority. Keeping in view the him great bodily harm, and that in so doing death ensued, such killing is murder in the first degree, by the statute of this state.” The supreme court on this point say: “The sixth instruction is correct under the stat- ute of this state. Homicide” (“mur- der” is the statutory term), “com- mitted in the attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree. The thirty-eighth section makes the per- son by whose act or procurement great bodily harm has been received by another guilty of what is by our law called a felony.” To the same effect in State v. Nueslein, 25 Mo. 111, 1857. See State v. Joeckel, 44 Mo, 234, 1869. In State v. Green, 66 Mo. 631, 1877, it was held that under the statute the intent to inflict great bodily harm upon the defendant, such act, if consummated, being a felony in Missouri, makes homicide murder in the first degree, although such homicide was not “wilful, delib- erate or premeditated.” In State v. Wieners, 66 Mo. 13, 1877; aff. in State v. Green, 66 Mo. 647, 1877, it is said that “such a killing,” i. e., one in the attempt to perpetrate any felony, “was murder, although not specifically intended, for the law attaches the intent to commit the other felony to the homicide.” —These rulings have been reviewed in a series of thoughtful articles in the Central Law Journal for 1878. If the Missouri supreme court, as the words quoted in State v. Jennings, may indicate, hold that a homicide in perpetration of a felony, or by poisoning or rape, would be murder under the statute, when it would not be murder at common law, this po- sition cannot be reconciled with the words of the statute, or the rulings of other courts, See infra, § 508- 510. If on the other hand, what is severity which the construction meant is that a murder at common law, perpetrated incidentally to an- other felony, need not, under the statute, be wilful or premeditated or deliberate in order to be murder in the first degree, the question is open to doubt. See infra, § 509, Souther v. Com. 7 Gratt. 673, 1851. The question depends on the stat- ute. “Other kind of wilful, deliber- ate, and premeditated killing” may seem to indicate that all killing, un- der the statute, in order to be mur- der in the first degree, must be “wil- ful, deliberate, and premeditated.” But the statute, if closely read, does not sustain this view. The words are, “Every murder which shall be committed by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, or premeditated killing; or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be murder in the first degree.” The terms “wilful,” etc., do not qualify the enumerated cases with which the section closes. In State v. Shock, 68 Mo. 552, 3 Am, Crim. Rep. 186, 1878, it was said by the court: “We are of the opinion that the words ‘other felony’ used in the first section refer to some collateral felony, and not to those acts of personal violence to the de- ceased which are necessary and con- stituent elements of the homicide itself, and are, therefore, merged in it, and which do not, when consum- mated, constitute an offense distinct from homicide. Wharton, Homicide, §§ 55, 56 et seq.” In Texas the distinction is also that of malice express, and of malice implied, though the grade is made to depend on the nature of the in- strument used. Primus v. State, 2 Tex. App. 369, 1877; Jones v. State, 3 Tex. App. 150, 1877; Tooney v. State, 5 Tex. App. 163, 1878; Rye v. State, 8 Tex. App. 163, 1878; Robms v. State, 9 Tex. App. 666, 1880; 684 CRIMINAL LAW. [§ 504 of a penal statute requires, and recollecting that the term as used in this case was meant to be restrictive, the better view seems to be, that in order to bring a homicide within the act, it must have been specifically willed by the perpetrator. It is difficult to see how, if an unintended homicide be within the terms of the act, any other kind of homicide with a collateral felonious intent can be excluded.* Eanes v. State, 10 Tex. App. 421, 1881; Hill v. State, 11 Tex. App. 456, 1882. Compare: Supra, §§ 145-147; in- fra, § 518. Under the Texas statute, homicide with intent to do serious bodily harm, which will probably end in death, may be murder in the first degree. Cox v. State, 5 Tex. App. 493, 1879. 1See Felton v. United States, 96 U. 8S. 699, 24 L. ed. 875, 1877. “Wilful” and “wilfully” mean will- ingly, designedly, purposely, obsti- nately, or stubbornly, with a set purpose. [Fed.] United States v. Three Railroad Cars, 1 Abb. (U. 8.) 196, 1 Am. L. T. Rep. 114, 1 Int. Rev. Rec. 189, Fed. Cas. No. 16,513, 1868. [Ala.] Georgia & P. R. Co. v. Lee, 92 Ala. 262, 9 So, 230, 1890; Louisville & N. R. Co. v. Anchors, 114 Ala. 492, 62 Am. St. Rep. 116, 22 So. 279, 1896. ([Cal.] Parsons v. Smilie, 97 Cal. 647, 32 Pac. 702, 1893. [Ind.] Chicago, St. L. & P. R. Co. v. Nash, 1 Ind. App. 298, 27 N. E. 564, 1891; Mil- ler v. Miller, 17 Ind. App. 605, 47 N. E. 338, 1897; Dull v. Cleveland, C. C. & St. L. R. Co. 21 Ind. App. 571, 52 N. E. 1018, 1899; Huff v. Chicago, I. & L. R. Co. 24 Ind. App. 492, 79 Am. St. Rep. 274, 56 N. E. 932, 1900. [Mich.] Highway Com’rs. v. Ely, 54 Mich. 173, 19 N. W. 940, 1884, [Neb.] Minkler v. State, 14 Neb. 181, 15 N. W. 330, 1883; Whit- man v. State, 17 Neb. 224, 22 N. W. 459, 1885. [N. M.] Territory v. Ander- son, 4 N. M. 218, 13 Pac. 21, 1887. [Pa.] Com. v. Perrier, 3 Phila. 229. [Tex.] Richardson v. State, 5 Tex. App. 470, 1879. See 8 Words & Phrases, 7468-7481. —Distinct from accidental, and means intentionally, see [Fed.] United States v. Boyd, 45 Fed. 851. 1890. [Kan.] Leicester v. Hoadley, 66 Kan. 172, 65 L.R.A. 523, 71 Pac. 818, 1908. [Ky.] Clark v. Com. 111 Ky. 443, 63 S. W. 740, 1901; Strut- ton v. Com. 23 Ky. L. Rep. 307, 62 S. W. 875, 1901. [Minn.] State v. Stein, 48 Minn. 466, 51 N. W. 474, 1892. [Mo.] State v. Brooks, 92 Mo. 542, 5 S. W. 257, 330, 1887; State v. Avery, 113 Mo. 475, 21 8S. W. 193, 1893; State v. Schaefer, 116 Mo. 96, 22 S. W. 447, 1893; State v. Howell, 117 Mo. 307, 23 S. W. 263, 1893; State v. Fitzgerald, 130 Mo. 407, 32 S. W. 1113, 1895; State v. Me- Kenzie, 144 Mo. 40, 45 S. W. 1117, 1898; State v. Silk, 145 Mo. 240, 44 8, W. 764, 46 S. W. 959, 1898; State v. Harper, 149 Mo. 514, 51 8S. W. 89, 1899; State v. McMullin, 170 Mo. 608, 71 S. W. 221, 1902. LN. J.] State v. Zdanowicz, 69 N. J. L. 619, 55 Atl. 748, 1903. [N. M.] Territory v. Anderson, 4 N. M. 213, 13 Pace. 21, 1887. [N. Y.] Anderson v. How. 116 N. Y. 336, 22 N. E. 695, 1889. [Pa.] Com. v. Perrier, 3 Phila, 229, 1858. —Implies bad purpose, design, evil intent, malice, and willingness. See: [Eng.] Rex v. Davis, 1 Leach, C. L. 493; Rex v. Reader, 4 Car. & P. 245, 1 Moody, C. ©. 239, 367. [U. S.] Felton v. United States, 96 U. 8S. 699, 24 L. ed. 875, 1878; Potter v. United States, 155 U. S. 446, 39 L. ed. 217, 15 Sup. Ct. Rep. 144, 1894; Spurr v. United States, 174 U. 8. 728, 43 L, ed. 1150, 19 Sup, Ct. Rep. 812, 1898; [Fed.] United States v. Smith, 27 Fed. 859, 1886; North Carolina v. Vanderford, 35 Fed. 287, 1888; Roberts v. United States, 61 C. C. A. 435, 126 Fed. 905, 1908. [Ala.] Harrison v. State, 37 Ala, 154, § 505] HOMICIDE. 685 § 505. “Deliberate” to be regarded as qualifying “kill- a ing. That species of homicide which is the result of justly provoked passion falls at common law under the head of man- slaughter, and of course is out of the question here. But there are many cases of murder at common law which are indeliberate. Putting aside homicides perpetrated in pursuance of a collateral 1861; Louisville & N. R. Co. v. An- chors, 114 Ala, 492, 62 Am. St. Rep. 116, 22 So. 279, 1896; Carl v. State, 125 Ala. 89, 28 So. 505, 1899. [Cal.] People v. Von Tiedeman, 120 Cal. 128, 52 Pac. 155, 1898. [Colo.] Williams v. People, 26 Colo. 272,57 Pac. 701, 1899. [Conn.] State v. Nussenholtz, 66 Conn. 92, 55 Atl. 589, 1903. [Ga.] King v. State, 103 Ga. 265, 30 S. E. 30, 1897; Hateley v. State, 118 Ga. 79,44 S. E. 852, 1908. [Idaho] Mills v. Glennon, 2 Idaho, 105,6 Pac.116, 1885. [Ind.] Wales v. Miner, 89 Ind. 118, 1883; Sherfey v. Evansville & T. H. R. Co. 121 Ind. 427, 23 N. E. 278, 1889; Parker v. Pennsylvania Co. 134 Ind. 673, 23 L.R.A. 552, 34 N. E. 504, 1893; Indianapolis v. Consumers’ Gas Trust Co. 140 Ind. 255, 39 N. HK. 943, 1894; Bridgewater v. State, 153 Ind. 564, 55 N. E. 737, 13 Am. Crim. Rep. 270, 1899; Chicago, St. L. & P. R. Co. v. Nash, 1 Ind. App. 301, 27 N. E. 564, 1891; Miller v. Miller, 17 Ind. App. 605, 47 N. E. 338, 1897; Dull v. Cleveland, C. C. & St. L. R. Co. 21 Ind. App. 571, 52 N. E. 1013, 1899; Huff v. Chicago, I. & L. R. Co. 24 Ind. App. 492, 79 Am. St. Rep. 274, 56 N. E. 932, 1900. [Iowa] Ful- ler v. Chicago & N. W. R. Co. 31 Iowa, 187, 1870; Parker v. Parker, 102 Iowa, 500, 71 N. W. 421, 1897; State v. Lightfoot, 107 Towa, 344, 78 N. W. 41, 11 Am. Crim. Rep. 588, 1899; Kletzing v. Armstrong, 119 Iowa, 508, 93 N. W. 500, 1908. [Ky.] Young v. Com. 12 Bush, 248, 1876. [Me.] State v. Robbins, 66 Me. 324, 1877. [Mass.] Com. v. Kneeland, 20 Pick. 206, 1838; Com. v. Connelly, 163 Mass. 539, 40 N. E. 826, 1895. [Mich.] Montgom- ery v. Muskegon Boom Co. 88 Mich. 633, 26 Am. St. Rep. 308, 50 N. W. 729, 1891. [Minn.] State v. Stein, 48 Minn. 466, 51 N. W. 474, 1892; State v. Smith, 78 Minn. 362, 81 N. W. 17, 138 Am. Crim. Rep. 240, 1899. [Mo.] State v. Grassle, 74 Mo. App. 313, 1898; State v. Ferguson, 82 Mo. App. 586, 1899. [N. H.] State v. Gove, 34 N. H. 510, 1857. [N. J.] State v. Clark, 29 N. J. L. 96, 1860. [N. Y.] Anderson v. How, 116 N. Y. 336, 22 N. E. 695, 1889; People v. Boas, 1 N. Y. Crim. Rep. 132, 1883; North- ern R. Co. v. Carpentier, 13 How. Pr. 222, 1856. [N. C.] State v. Mas- sey, 97 N. C. 465, 2 S. E. 445, 1887; Brown v. Brown, 124 N. C. 19, 70 Am. St. Rep. 574, 32 S. E. 320, 1899. [Pa.] Chapman v. Com. 5 Whart. 427, 34 Am. Dec. 565, 1840. [Tex.] State v. Alcorn, 78 Tex. 387, 14 S. W. 663, 1890; Thomas v. State, 14 Tex. App. 200, 1883; Lane v. State, 16 Tex. App.- 172, 1884; Wood v. State, 16 Tex. App. 574, 1884; Shu- bert v. State, 16 Tex. App. 645, 1884; Trice v. State, 17 Tex. App. 43, 1884; Owens v. State, 19 Tex. App. 242, 1885; Rose v. State, 19 Tex. App. 470, 1885; Yoakum v. State, 21 Tex. App. 260, 17 S. W. 254, 1886; Steber v. State, 23 Tex. App. 176, 4 S. W. 880, 1887; Bowers v. State, 24 Tex. App. 542, 5 Am. St. Rep. 901, 7 S. W. 247, 1888; High v. State, 26 Tex. App. 545, 8 Am. St. Rep. 488, 10 S. W. 238, 1888; Finney v. State, 29 Tex. App. 184, 15 S. W. 175, 1890; Ferguson v. State, 36 Tex. Crim. Rep. 60, 35 S. W. 369, 1896; Holmes v. State, 39 Tex. Crim. Rep. 231, 73 Am. St. Rep. 921, 45 S. W. 487, 1898; Cor- nelison v. State, 40 Tex. Crim. Rep. 159, 49 S. W. 384, 1899. [Vt.] Savage v. Tullar, Brayton, (Vt.) 223, 1816. [Wis.] State v. Preston, 34 Wis. 675, 1874. [Wyo.] Hay v. Peterson, 6 Wyo. 419, 34 L.R.A. 581, 45 Pac. 1073, 1896. 686 CRIMINAL LAW. [§ 505 felonious intent, which have already been considered, we have those cases where the intellect is so confused by drink or stimu- lants, or by undue, and yet not homicidal, passion, as to be in- capable of deliberation.! These cases are all murder at com- mon law, but it is plain that they want the essential features of deliberation to make them murder under the statutes before us. Under these statutes the deliberate intent must be “to take life.” ® § 506. “Premeditated” an essential incident. To estab- lish the predicate of “premeditated,” which, under most of the statutes, is an essential incident of murder in the first degree,’ lInfra, § 514. As to meaning of deliberation, see supra, §§ 151, 152; 2 Words & Phrases, 1951 et seq.; [Ill.] Upstone v. People, 109 Ill. 169, 4 Am. Crim. Rep. 395, 1883. [Mo.] State v. Sharp, 71 Mo. 218, 1880; State v. Cooper, 71 Mo. 436, 1880. Injuries rendering incapable of acting with deliberation and pre- meditation, received a short time before the commission of a homi- cide, will not reduce the homicide to manslaughter, unless they were caused by the unlawful act of the deceased. People v. Worthington, 122 Cal. 583, 55 Pac. 396, 1898. 2State v. Mitchell, 64 Mo. 191, 1876; State v. Melton, 67 Mo. 594, 1878; Nye v. People, 35 Mich. 16, 1877. As to New York statute, see Peo- ple v. Batting, 49 How. Pr. 392, 1874, and People v. Cassiano, 30 Hun, 388, 1883. . 1See State v. Curtis, 70 Mo. 594, 1879; State v. Lopez, 15 Nev. 407, 1880. Act must be done deliberately and premeditately as well as wilfully. Bower v. State, 5 Mo. 364, 32 Am. Dec. 325, 1838. As to what constitutes premedita- tion and deliberation, see State v. Stoeckli, 8 Mo. App. 598, 1880; State v. Baber, 11 Mo. App. 586, 1882; State v. Rose, 12 Mo. App. 567, 1882. Actual intention to take life is not an essential element in the of- fense of manslaughter in the first degree under Alabama statute, or indeed in murder, The voluntary setting in motion or application of unlawful force, or the doing of an act clearly dangerous to the lives of others, whereby death ensues, will suffice to supply the legal ele- ment of intent, however free the ac- tion may be from actual purpose to kill. Lewis v. State, 96 Ala. 6, 38 Am. St. Rep. 75, 11 So. 259, 1891. See [Ala.] McManus v. State, 36 Ala. 285, 1860; Hampton v. State, 45 Ala, 82, 1871; Washington v. State, 60 Ala. 10, 31 Am. Rep. 28, 3 Am. Crim. Rep. 171, 1877; Mitchell v. State, 60 Ala. 29, 1877; Harring- ton v. State, 83 Ala, 9, 3 So. 425, 1887; Williams v. State, 83 Ala. 16, 3 So. 616, 1887; Hornsby v. State, 94 Ala. 55, 10 So. 522, 1892, [Ark.] Brassfield v. State, 55 Ark. 556, 18 S. W. 1040, 1892. [Ga.] Collier v. State, 39 Ga. 31, 99 Am. Dec. 449, 1869. [Ky.] Golliher v. Com. 2 Duv. 163, 87 Am. Dec. 498, 1865. [N. C.] State v. Hoover, 20 N. C. 500, (4 Dev. & B. L. 365) 34 Am. Dec. 383, 1839. Thus, where a homicide was com- mitted by firmg a pistol, at night, through the window of a lighted room in which four persons were sitting, even though the accused did not intend to kill or to shoot any of the inmates of the room, but ms intention was merely to frighten them, the recklessness of the act, showed a depraved mind regardless of human life, which might make the offense murder jn the first de- § 506] HOMICIDE. 687 it has been said that a positive previous intent to take life must be shown; ® but this opinion has since been recalled by the court that delivered it, and is opposed to the weight of authority else- where. And it has also been said that when the fact of death alone is proved, the presumption is that it is murder in the second degree, it being incumbent on the prosecution to rebut this by something, however slight, from which premeditation can be inferred.* gree under the statute. Washing- ton v. State, 60 Ala. 10, 31 Am. Rep. 28, 3 Am. Crim. Rep. 171, 1877. See Golliher v. Com. 2 Duv. 163, 87 Am. Dec. 493, 1865. See also note in 38 Am. St. Rep. 80. Compare: State v. Hardie, 47 lowa, 647, 29 Am. Rep. 496, 2 Am. Crim. Rep. 326, 1878, in which an accused who unintentionally killed a woman while trying to frighten her with a revolver was held guilty of manslaughter only. In a case where the accused, who was driving in a wagon with two boys, handed the reins to one of the boys and got out, telling him to drive on, and thereafter, when the wagon was some distance away, started to catch up with it, calling to the driver to stop, which he did; and when the accused had nearly reached the wagon, the second boy snatched the reins from the first boy and drove on,—upon the failure of second boy to listen to his request to stop, the accused picked up a piece of brick, striking him above the right ear, death ensuing about a week afterwards. It was held that whether accused intended to kill deceased or not, that result was chargeable to his voluntary act and not to misadventure. Lewis v. State, 96 Ala. 6, 38 Am. St. Rep. 75, 11 So. 259, 1887. See Walker v. State, 85 Ala. 7, 7 Am. St. Rep. 17, 4 So. 686, 1887. Deliberately killing a person in the hope of covering up a former crime and escaping punishment, the accused will not be deemed to be un- able to deliberate on the act by rea- son of the fact that he was labor- ing under excitement naturally brought about by his former crime. But be this as it may,—and when analyzed Haas v. State, 18 Ohio C. C. 418, 7 Ohio C. D. 509, 1897. 2 Mitchell v. State, 5 Yerg. 340, 1833. Deliberation and premeditation distinction from “heat of passion.” State v. Wieners, 66 Mo. 13, 1877. 3 Dale v. State, 10 Yerg. 551, 1837. Supra, §§ 150-152. 4[Mo.] State v. Curtis, 70 Mo. 594, 1879. [N. J.] Warnerev. State, 56 N. J. L. 686, 44 Am, St. Rep. 415, 29 Atl. 505, 9 Am. Crim. Rep. 526, 1894. [Ohio] State v. Turner, Wright (Uhio) 20, 1831. [Va.] Hill v. Com. 2 Gratt. 594, 1845. See infra, § 518, supra, §§ 150- 152. Contra where presumption of mal- ice arises from use of a deadly weapon; [Ala.] Gibson v. State, 89 Ala. 121, 18 Am. St. Rep. 96, 8 So. 98, 1889; Young v. State, 95 Ala. 4, 10 So. 913, 1892; Wilkins v. State, 98 Ala. 1, 13 So. 312, 1893. [La.] State v. Deschamps, 41 La. Ann. 1051, 7 So. 133, 1889. [IN. Y.] Peo- ple v. Downs, 29 N. Y. S. R. 117, 8 N. Y. Supp. 521, 1890. Wanton homicide—Sir J. F. Stephen (Dig. Crim. Law, 5th ed. art. 244a) says: “A man who wan- tonly, or on a slight cause, inten- tionally and violently kills another, shows by that act, not indeed the existence of hatred of long standing, but the existence of deadly hatred instantly conceived and executed, which is at least as bad, if not worse. This, in the strict sense of the words, is malice aforethought. As Hobbes well observes: ‘It is mal- ice aforethought, though not long forethought.’ Dialogue of the Com- mon Laws, Works, vi. 85. And it is not by law necessary that it 688 CRIMINAL LAW. [§ 506 the position varies very little from that of the Crown writers on murder, who draw the presumption of malice aforethought, not from the fact of death, but from the nature of the wound, instrument, etc.,—there is a substantial concurrence of authority on the general meaning of premeditation. intention to do the act in question.° It involves a prior It is not necessary, how- ever, that this intention should have been conceived for any par- ticular period of time.® should be long. If a slight provoca- tion does not reduce murder to man- slaughter, a fortiori the total ab- sence of all provocation, and the mere rapidity with which the execu- tion of a cruel and wicked design follows on its conception, cannot have that effect.” To this it may be added that we can be on the guard against malice which exhibits itself in prior overt acts, but not against that which is concealed. 5[Ga.] Hanvey v. State, 68 Ga. 612, 1882; Moon v. State, 68 Ga. 687, 1882. [Ind.] Binns v. State, 66 Ind. 428, 1879. [Mo.] State v. Wieners, 66 Mo. 13, 1877; State v. Williams, 69 Mo. 110, 1879. [Neb.] Schlencker v. State, 9 Neb. 300, 2 N. W. 710, 1880. [S. C.] State v. Coleman, 20 8. C. 441, 1883. 6 Supra, §§ 151, 152; infra, § 514. See [Ala.] Miller v. State, 54 Ala. 155, 1875. [Ark.] McKenzie v. State, 26 Ark. 334, 1870. [Cal.] People v. Nichol, 34 Cal. 211, 1867; People v. Williams, 48 Cal. 344, 1872; People v. Cotta, 49 Cal. 166, 1874. [D.C.] United States v. Nev- erson, 1 Mackey, 152, 1881. [Fla.] Ernest v. State, 20 Fla. 383, 1883. [Ga.] Bailey v. State, 70 Ga. 617, 1883. [Mo.] State v. Dunn, 18 Mo. 419, 1853; State v. Jennings, 18 Mo. 435, 1853; State v. Hays, 23 Mo. 287, 1856; State v. Shoultz, 25 Mo. 128, 1857; State v. Starr, 38 Mo. 270, 1866; State v. Holme, 54 Mo. 158, 1873; State v. Mitchell, 64 Mo. 191, 1876; State v. Lane, 64 Mo. 319, 1876; State v. Hill, 69 Mo. 451, 1878; State v. Kilgore, 70 Mo. 546, 1879; State v. Sharp, 71 Mo. 218, 1880. [Neb.] Milton v. State, 6 Neb. 136, 1877; Schlencker v. State, 9 Neb. 300, 2 N. W. 710, 1880; Haun- Jt is as much premeditation, if it stine v. State, 31 Neb. 112, 47 N. W. 698, 1890. [Nev.] State v. Millain, 3 Nev. 410, 1867; State v. Ah Mook, 12 Nev. 369, 1877. [N. J.] Donfielly v. State, 26 N. J. L. 463, 1858. [N. Y.] People v. Cornetti, 92 N. Y. 85, 1883; People v. Johnson, 139 N. Y. 358, 34 N. E. 920, 1898. [Ohio] Shoemaker v. State, 12 Ohio, 43, 1848. [Or.] State v. Garrand, 5 Or. 216, 1874; State v. Henderson, 24 Or. 100, 32 Pac. 1030, 1893. [Pa.] Kilpatrick v. Com. 31 Pa. 198, 1858; Keenan v. Com, 44 Pa. 55, 84 Am. Dec, 414, 1862; Com. v. Drum, 58 Pa. 16, 1868; Green v. Com, 83 Pa. 75, 1876; Com. v. Buccieri, 153 Pa. 535, 26 Atl. 228, 1893; Com. v. Da- ley, 2 Clark (Pa.) 156, 1847. [Tenn.] State v. Anderson, 2 Overt. 6, 5 Am. Dec. 648, 1804; Dale v. State, 10 Yerg. 551, 1837; Anthony v. State, Meigs, 265, 33 Am. Dec. 143, 1838; Swan v. State, 4 Humph, 136, 1843; Lewis v. State, 8 Head, 127, 1859. [Tex.] Jordan v. State, 10 Tex. 492, 1853; Duebbe v. State, 1 Tex. App. 159, 1876; Halbert v. State, 3 Tex. App. 656, 1878; Jones v. State, 31 Tex. Crim. Rep. 177, 20 S. W. 354, 1892; Reyons v. State, 32 Tex. Crim. Rep. 151,22 8. W, 590, 1898. [Va.J Bennett v. Com. 8 Leigh, 745, 1837; Whiteford v. Com. 6 Rand. (Va.) 721, 18 Am. Dec. 771, 1828; Hill v. Com, 2 Gratt. 594, 1845. [Wis.] Clifford v. State, 58 Wis. 477, 17 N. W. 304, 1883. See note in 18 Am. Dec. 782. In Alabama, under the Code, the killing must be “wilful, deliberate, malicious, and premeditated” which involves prior thought. Smith v. State, 68 Ala, 424, 1880. —Same rule obtains in other states.—See [Fla.] Lovett v. State, § 506] HOMICIDE, 689 entered into the mind of the guilty agent a moment before the act, as if it entered ten years before.” And the reason of this is obvious. In the first place, if in order to make murder in the first degree it be necessary that the idea should be proved to have been conceived a week or a day ahead, there will be no murder in the first degree at all, for the guilty party will take care that the conception be concealed until the limitation is passed. In the second place, all psychological investigation shows that the process of mental conception lies beyond the scrutiny of exact observation.’ Hence judges have generally united in holding that while there must be some sort of premedi- tation,—1. e., the blow must not be the incident of mania or a sudden paroxysm of passion, such as suspends the intellectual powers,—whether there has been such premeditation is for the jury; and they are to be governed, in their determination of this question, under the instructions of the court, by a logical exami- nation of all the facts in the case. is one of fact, not of arbitrary technical law.° 80 Fla. 142, 17 L.R.A. 705, 11 So. 550, 1892. [Ga.] Johnson v. State, 88 Ga. 208, 14 S. E. 208, 1891. [Ky.] Combs v. Com. 14 Ky. L. Rep. 703, 21 S. W. 353, 1893. [La.] State v. Ashley, 45 La. Ann. 1036, 13 So. 738, 1893. [N. C.] State v. Cox, 110 N. C. 503, 14 S. HE. 688, 1892. In Indiana, the statute construed to require that an intention should be proved or be inferred to have been formed by the defendant prior to the act; Fahnestock v. State, 23 Ind. 231, 1864; but this does not differ from the view of the text. See Binns v. State, 66 Ind. 428, 1879. In Texas the view of the text is combated. Anderson v. State, 31 Tex. 440, 1868; Ake v. State, 30 Tex. 466, 1867; 31 Tex. 416, 1868. But see Duebbe v. State, 1 Tex. App. 159, 1876; Craft v. State, 3 Kan. 450, 1865. See also Bivens v. State, 11 Ark. 455, 1850. 7[Minn.] State v. Brown, 41 Minn. 319, 48 N. W. 69, 1889. [Mo.] State v. Smith, 114 Mo. 406, 21 8. W. 827, 1893. [N. Y.] People v. Clark, 7 N. ¥. 385, 1852. [Pa.] Com. v. Daley, 2 Clark (Pa.) 361, 1844. [Tex.] See O’Connor v. State, 28 Crim. L. Vol. I.—44. The question, in other words, But when pre- Tex. App. 288, 13 S. W. 14, 1889. [Va.] Wright v. Com. 33 Gratt. 880, 1880; McDaniel v. Com. 77 Va. 281, 4 Am. Crim. Rep. 369, 1883. 8 First degree murder—Premedita- tion.—“In this case we have to deal only with that kind of murder in the first degree described as wilful, de- liberate, and premeditated. Many cases have been decided under this clause, in all of which it has been held that the intention to kill is the essence of the offense. Therefore, if an intention to kill exists, it is wilful. If this intention be accom- panied by such circumstances as evi- dence a mind fully conscious of its own purpose and design, it is de- liberate; and if sufficient time be afforded to enable the mind fully to frame and design to kill, and to select the instrument, or ,;to frame the plan to carry this design into execution, it is premeditated.” Ag- new, C. J., Com. v. Drum, 58 Pa. 9, 1868. See also McCue v. Com. 78 Pa, 185, 21 Am. Rep. 7, 1 Am. Crim. Rep. 268, 1875; State v. Holme, 54 Mo. 162, 1873; Gray v. State, 4 Baxt. 331, 1874. 9 [Fed.] Rhespublica v. Bob, 4 Dall. 690 CRIMINAL LAW. [§ 506 meditation is shown, an intermediate provocation, not involving bodily danger, does not reduce the degree.” § 507. Facts from which premeditation may be inferred. There are, however, certain facts which, when proved, justify, in cases where courts are at liberty to charge on matters of fact, instructions to the jury that from them, as a matter of logic, a deliberate intent to take life may be inferred.? 145, 1 L. ed. 776, 1794. [Ala.] Col- lier v. State, 69 Ala. 247, 1881. [Cal.] People v. Neary, 104 Cal. 373, 37 Pac. 943, 1894. [Dak.] Territory v. Bannigan, 1 Dak. 451, 46 N. W. 597, 1877. [Fla.] Irvin v. State, 19 Fla. 872, 1860; Westcott v. State, 31 Fla. 458, 12 So. 846, 1893. [Ind.] Aszman v. State, 123 Ind. 347, 8 L.R.A, 33, 24 N. E123, 1889. [Ky.] Madison v. Com. 13 Ky. L. Rep. 313, 17 S. W. 164, 1891; Simmons v. Com. 13 Ky. L. Rep. 839, 18 S&. W. 534, 1892. [La.] State v. White, 30 La, Ann. 364, 1878. [Mo.] State v. Welsor, 117 Mo. 570, 21 S. W. 448, 1893; State v. Lewis, 14 Mo. App. 191, 1883. [Or.] State v. Anderson, 10 Or. 448, 1882; State v. Carver, 22 Or. 602, 30 Pac. 315, 1892. [Pa.] Green v. Com, 83 Pa. 75, 1876; Quig- ley v. Com. 84 Pa, 18, 1877. [Tex.] King v. State, 4 Tex. App. 256, 1878; Jones v. State, 4 Tex. App. 436, 1878; Halliburton v. State, 32 Tex. Crim. Rep. 51, 22 8S. W. 48, 1893. [W. Va.] State v. Welch, 36 W. Va. 690, 15 S. E. 419, 1892. See Wharton, Crim. Ev. §§ 734 et seq. supra, §§ 150-152. The definition of premeditation, as “thougut beforehand, for any length of time, however short, has too often and too long had the saction of this court to be repudiated now.” Henry, J., State v. Snell, 78 Mo. 240, 1883. Not necessary to show motive or prior ill feeling. People v. Cornetti, 92 N. Y. 85, 1883; People v. Fish, 125 N. Y. 136, 26 N. E. 319, 1891. See supra, §§ 151, 152, for other cases. To the same general effect, see Simmerman v. State, 14 Neb. 568, 17 N. W. 115, 1883. As to intent, see Adams v. People, Where a man 109 Ill. 444, 15 Am. Rep. 617, 4 Am. Crim. Rep. 351, 1884. In Alabama, an instruction that predicates murder pursuant to de- sign previously formed regardless of whether it was the result of malice, passion, self defense, etc. is erro- neous. Domingus v. State, 94 Ala. 9, 11 So. 190, 1892; Hornsby v. State, 94 Ala. 55, 10 So. 522, 1882. In Missouri it has been held that a charge defining premeditation as “thought for any length of time, however short,” is defective in omit- ting “beforehand.” State v. Harris, 76 Mo. 361, 1882. See State v. Mc- Ginnis, 76 Mo. 326, 1882. Under the New York statute it has been held that the “deliberate and premeditated design” must precede the killing for an appreciable period of time, no matter how brief, which may suffice for reflection and con- sideration, and the formation of a definite purpose. People v. Majone, ee Y. 211, 1883, 12 Abb. N. C. 87. 10 State v. Clifford, 58 Wis. 113, 16 N. W. 25, 1883. 1See Wharton, Crim. Ev. §§ 734 et seq.; 6 Enc. Ev. 592, 625; and see supra, §§ 437, 438. [Cal.] People v. Bruggy, 93 Cal. 476, 29 Pac. 26, 1892. [Ga.] Thomas v. State, 67 Ga. 460, 1881; Marable v. State, 89 Ga. 425, 15 5. E, 453, 1892; Butler v. State, 91 Ga. 161, 16 S. E. 984, 1893. [Idaho] State v. Schlieler, 4 Idaho, 120, 37 Pac. 272, 1894. [Kan.] State v. Davis, 48 Kan. 1, 28 Pac. 1092, 1892. [Ky.] Pace v. Com. 89 Ky. 204, 12 8. W. 271, 1889; O’Brien v. Com, 89 Ky. 354, 12 8. W. 471, 1889; Nelson v. Com. 94 Ky. 594, 23 S. W. 348, 350, 1893; Lewis v. Com. 12 Ky. L. Rep. 679, 14 S. W. 966, 1890. [Mo.] State v. Miller, 100 § 507] HOMICIDE. 691 intelligently and maliciously makes use of a weapon likely to take lifc,? upon another person the party assailed being un- Mo. 606, 13 S. W. 832, 1051, 1890; State v. Bulling, 105 Mo. 204, 15 8. W. 367, 16 S. W. 830, 1891; State v. Hultz, 103 Mo. 41, 16 S. W. 940, 1891; State v. McCoy, 111 Mo. 517, 20 8. W. 240, 1892; State v. Avery, 118 Mo, 475, 21 S. W. 198, 1893. [Pa.] Green v. Com. 83 Pa. 75, 1876; Lanahan v. Com. 84 Pa. 80, 1877; Nevling v. Com. 98 Pa. 323, 1881; Com. v. Bell, 164 Pa. 517, 30 Atl. 511, 1894; Com. v. Volkavitch, 5 Kulp, 75, 1887. [Tenn.] King v. State, 91 Tenn. 617, 20 S. W. 169, 1892. [Tex.] Beltram v. State, 9 Tex. App. 280, 1880; Gaitan v. State, 11 Tex. App. 544, 1882; Galla- her v. State, 28 Tex. App. 247, 12 S. W. 1087, 1889; Drake v. State, 29 Tex. App. 265, 15 S. W. 725, 1890; Weatnersby v. State, 29 Tex. App. 278, 15 S. W. 823, 1890. [Va.] Lashley v. Com. 88 Va. 400, 13 S. E. 803, 1891; Davis v. Com. 89 Va. 132, 15 8. E. 388, 1892; Tilley v. Com. 89 Va. 136, 15 S. E. 526, 1892. [Wyo.] Miller v. State, 3 Wyo. 657, 29 Pac. 136, 1892. 2For definition of “deadly weap- on,” see Sylvester v. State, 72 Ala. 201, 1882; Waite v. State, 13 Tex App. 169, 1882; 2 Words & Phrases, 1853. As to what constitutes a deadly weapon, see ante, § 425 footnote 22. Proof of homicide with a deadly weapon raises presumption of mur- der in second degree only, and bur- den is on prosecution to show a higher degree. See [Ala.] Brown v. State, 109 Ala. 70, 20 So. 103, 1895. [Ark.] Simpson v. State, 56 Ark. 8, 19 S. W. 99, 1892. [Cal.] People v. Gibson, 17 Cal. 283, 1861; People v. Phelan, 123 Cal. 551, 56 Pac. 424, 1899. [Conn.] State v. Johnson, 40 Conn. 1386, 1873. [Del.] State v. Jefferson, 3 Harr. (Del.) 571, 1842. [Fla.] Cook v. State, 46 Fla. 20, 35 So. 665, 1903. [Iowa] State v. Mc- Cormick, 27 Iowa, 402, 1869; State v. Phillips, 118 Iowa, 660, 92 N. W. 876, 1902. [Mo.] State v. Holme, 54 Mo. 158, 1878; State v. Lane, 64 Mo, 319, 1876; State v. Evans, 65 Mo. 574, 1877; State v. Kilgore, 70 Mo. 546, 1879; State v. Jones, 78 Mo, 278, 1883; State v. Evans, 124 Mo. 397, 28 S. W. 8, 1894; State v. Silk, 145 Mo. 240, 44 S. W. 764, 46 S. W. 959, 1898; State v. Me- Mullin, 170 Mo. 608, 71 S. W. 221, 1902. [Neb.] Milton v. State, 6 Neb. 136, 1877; Schlencker v. State, 9 Neb. 241, 1 N. W. 857, 1879; Beers v. State, 24 Neb. 614, 39 N. W. 790, 1888. [NN. J.] Brown v. State, 62 N. J. L. 666, 42 Atl. 811, 1899. LN. C.] State v. Fuller, 114 N. C. 885, 19 S. E. 797, 1894; State v. Covington, 117 N. C. 834, 23 S. E. 337, 1895; State v. Thomas, 118 N. C. 1118, 24 S. E. 431, 1896; State v. Rhyne, 124 N. C. 847, 33 S. E. 128, 1899; State v. McCourry, 128 N. C. 594, 38 S. E. 883, 1901; State v. Bishop, 131 N. C. 733, 42 8. E. 836, 1902; State v. Utley, 132 N. C. 1022, 43 S. E. 820, 1903; State v. Cole, 132 N. C. 1069, 44 S. E. 391, 1903; State v. Lipscomb, 134 N. C. 689, 47 S. E. 44, 1904. [Or.] State v. Carver, 22 Or. 602, 30 Pac. 315, 1892. [Pa.] O’Mara v. Com. 75 Pa. 424, 1874; McCue v. Com. 78 Pa. 185, the point deleted from 21 Am. Rep. 7, 1 Am. Crim. Rep. 268, 1875; Com. v. Mika, 171 Pa. 278, 33 Atl. 65, 1895. [Tenn.] Dains v. State, 2 Humph. 439, 1841; Witt v. State, 6 Coldw. 5, 1868. [Tex.] Ake v. State, 30 Tex. 466, 1867; Hamby v. State, 36 Tex. 523, 1872; Farrer v. State, 42 Tex. 265, 1875; Murray v. State, 1 Tex. App. 417, 1876; Richarte v. State, 5 ‘Tex. App. 359, 1879; Sum- mers v. State, 5 Tex. App. 365, (point deleted from 32 Am. Rep. 578), 1879; Moore v. State, 15 Tex. App. 1, 1883. [Va.] Hill v. Com. 2 Gratt. 594, 1845; Boswell v. Com. 20 Gratt. 860, 1871; Willis v. Com. 32 Gratt. 929, 1879; McDaniel v. Com. 77 Va. 281, 4 Am. Crim. Rep. 369, 1883; Watson v. Com. 85 Va. 867, 9 S. E. 418, 1889; Myers v. Com. 90 Va. 705, 19 S. E. 881, 1894; Reed v. Com. 98 Va. 817, 36 S. E. 399, 1900. [W. Va.] State v. Cain, 20 W. Va. 679, 1882; State v. Doug- 602 CRIMINAL LAW. [§ 507 armed ;* where he declares his intentions to be deadly; where he makes preparations for the concealing of the body; where, before the death, he lays a train of circumstances which may be calculated to break the surprise or baffle the curiosity which would probably be occasioned by it; where, in any way, evidence arises which shows a harbored design against the life of another ; 4 where the act is part of a conspiracy to destroy persons of a particular class; 5 where the facts indicate peculiar cruelty; ® such evidence, when standing by itself, entitles us to hold, as a lass, 28 W. Va. 297, 1886; State v. Hobbs, 37 W. Va. 812, 17 8. E. 380, 1893; State v. Morrison, 49 W. Va, 210, 38 S. E. 481, 1901; State v. Hertzog, 55 W. Va. 74, 46 S. E. 792, 1904. 3 See [Ala.] Hornsby v. State, 94 Ala, 55, 10 So. 522, 1891. [Cal.] People v. Lynch, 101 Cal. 229, 35 Pac. 860, 1894. [Ill.] Mayes v. People, 106 Ill. 306, 46 Am. Rep. 698, 1883. [Ind.] McDermott v. State, 89 Ind. 187, 1883. [Ky.] Mitchell v. Com. 12 Ky. L. Rep. 458, 14 S. W. 489, 1890; McCarty v. Com. 14 Ky. L. Rep. 285, 20 8S. W. 229 (where drunkenness was no_ defense). [Mich.] People v. Wolf, 95 Mich. 625, 55 N. W. 357, 1893; People v. Wright, 89 Mich. 70, 50 N. W. 792, 1891. [Mo.] State v. Banks, 118 Mo. 117, 23 S. W. 1079, 1893. [Or.] State v. Carver, 22 Or. 602, 30 Pac. 315, 1892. [Pau.] Kilpatrick v. Com. 31 Pa. 198, 1863; Abernethy v. Com. 101 Pa. 322, 1883. [Tex.] Murphy v. State, 28 Tex. App. 350, 13 S. W. 141, 1890; Walker v. State, 28 Tex. App. 503, 13 S. W. 860, 1890; Hughes v. State, 29 Tex. App 565, 16 S. W. 548, 1891; Williams v. State, 29 Tex. App. 89, 14 8. W. 388, 1890; Ward v. State, 30 Tex. App. 687, 18 S. W. 793, 1892. [Va.] Howell v. Com. 26 Gratt. 995, 1875; Mitchell v. Com. 33 Gratt. 872, 1880. 4[Ala.] Hawes v. State, 88 Ala. 37, 7 So. 302, 1890. [Colo.] Power v. People, 17 Colo. 178, 28 Pac. 1121, 1892; Jordan v. People, 19 Colo. 417, 36 Pac, 218, 1894. [Iowa] State v. Cumberland, 90 Towa, 525, 58 N. W. 885, 1894. [Ky.] Clem v. Com. 11 Ky. L. Rep. 780, 18 S. W. 102, 1890; Thomas v. Com. 14 Ky. L. Rep. 288, 20 S. W. 226, 1892. [Md.] Garlitz . Ala. 377, 1881. v. State, 71 Md. 293, 4 L.R.A. 601, 18 Atl. 39, 1889. [Mo.] State v. Umble, 115 Mo. 452, 22 8. W. 378, 1893; State v. Howell, 117 Mo. 307, 23 S. W. 268, 1893; State v. Dett- mer, 124 Mo. 426, 27 S. W. 1117, 1894. [N. Y.] Peo le v. Slocum, 125 N. iM 716, 26 N. KE. 311, 1891. [N. C.] State v. Wilson, i04 N.C. 868, 10 S. E. 315, 1889. [Pa.] Campbell v. Com. 84 Pa. 187, 1877; Com. v. Crossmire, 156 Pa. 304, 27 Atl. 40, 18938. [Tenn.] Barnards v. State, 88 Tenn. 183, 12 S. W. 431, 1889; Tarvers v. State, 90 Tenn. 485, 16 S. W. 1041, 1891. [Tex.] Pullen v. State, 28 Tex. App. 114, 12 8. W. 502, 1889; Caldwell v. State, 28 Tex. App. 566, 14 S. W. 122, 1890; Lewis v. State, 29 Tex. App. 201, 25 Am. St. Rep. 720, 15 S. W. 642, 1890; Stephens v. State, 31 Tex. Crim. Rep. 365, 20 S. W. 826, 1892. [Va.] Mus- coe v. Com. 87 Va. 460, 12 8S. E. 790, 1891; Snodgrass v. Com. 89 Va. 679, 17 S. E. 238, 1893; Taylor v. Com. 90 Va. 109, 17 S. E. 812, 1893. 5Ibid. [Ala.] Burke v. State, 71 [Kan.] State v. Kearley, 26 Kan. 77, 1881. [Pa.] Carroll v. Com. 84 Pa. 107, 2 Am. Crim. Rep. 290, 1877; Kehoe v. Com. 85 Pa. 127, 1877. [Tex.] Smith v. State, 7 Tex. App. 414, 1880; Pharr v. State, 7 Tex. App. 472, 1879; Graves v. State, 14 Tex. App. 113, 1883; Duran v. State, 14 Tex. App. 195, 1883; Stanley v. State, 14 Tex. App. 315, ‘1883. [ is] State v. Clif- ford, 58 Wis. 118, 16 N. W. 25, 1883. 6 [ul.] Painter v. People, 147 Ill. 444, 35 N. E. 64, 1893. [Ky.] Horns- ba v. Com. 14 Ky. L. Rep. 166, 19 S. W. 840, 1892. [Mass.] Com. v. Holmes, 157 Mass. 233, 34 Am. St. § 507] HOMICIDE. 693 presumption of fact, that the intention to take life was deliberate.” The same view was taken where the defendant loaded a pistol, took aim at, and shot the deceased; * where he deliberately pro- cured a butcher’s knife and sharpened it for the avowed purpose of killing the deceased ; ° where he concealed a dirk in his breast, stating, shortly before the attack, that he knew where the seat of life was ; '° where he thrust a hand spike deeply into the forehead of the deceased. But it is not necessary, to warrant a conviction of murder in the first degree, that the instrument should be such as would necessarily produce death.” Rep. 270, 32 N. E. 6, 1892. [Mo.] State v. Mahly, 68 Mo. 315, 3 Am. Crim. Rep. 183, 1878. [N. Y.] People v. Geoghan, 1388 N. Y. 677, 34 N. E. 399, 1898. [Tex.] Blackwell v. State, 29 Tex, App. 194, 15 S. W. 597, 1890. 7 U. S.] Respublica v. Bob, 4 Dall. 145, 1 L. ed. 776, 1794. [N. J.] See State v. Spencer, 21 N. J. L. 196, 1848. [Pa.] Com. v. Williams, 2 Ashm, (Pa.) 69, 1839. 8Com. v. Smith, 7 Smith’s Laws (Pa.) 696, 1816. As to deadly weapons, see ante, § 425, foot note 22, and [Ala:] Wil- kins v. State, 98 Ala. 1, 13 So. 312, 1893. [Mont.] Territory v. Johnson, 9 Mont. 21, 22 Pac. 346, 1889. [Pa.] Com. v. Werling, 164 Pa. 559, 30 Atl. 406, 1894. As to what constitutes deadly weapons, see supra, § 425, footnote 22. 9[Ala.] Webb v. State, 100 Ala. 47, 14 So. 865, 1894; Sullivan v. State, 102 Ala. 135, 48 Am. St. Rep. 22,15 So. 264, 1894. [N. Y.] People v. Rohl, 188 N. Y. 616, 33 N. E. 933, 1893. [Pa.] Com. v. O’Hara, 7 Smith’s Laws, 694, 1797; Green v. Com. 83 Pa. 75, 1876; Lanahan v. Com. 84 Pa. 80, 1877. [Va.] Burgess v. Com. 2 Va. Cas, 483, 1825. See also Wharton, Crim. Ev. §§ 734-764. “Without adopting all the lan- guage of Chief Justice McKean in that case (Com. v. O’Hara, 7 Smith’s Law (Pa.) 694, 1787), I may use that of Judge Strong in Cathcart v. Com. 37 Pa. 108, 1860. ‘If the kill- Thus where the weapon ing was not accidental, then malice and a design to kill were to be pre- sumed from the use of a deadly weapon; for the law adopts the com- mon, rational belief that a man in- tends the usual, immediate, and nat- ural consequences of his voluntary act. Human reason will not tolerate the denial that a man who intention- ally, not accidentally, fires a musket ball through the body of his wife, and thus inflicts a mortal wound, has a heart fatally bent on mischief, and intends to kill.” Agnew, C. J., McCue v. Com. 78 Pa. 185, 21 Am. Rep.*7, 1 Am. Crim. Rep. 268, 1875; 8. P., Quigley v. Com. 84 Pa. 18, 1877. But see Wharton, Crim. Ev. §§ 734-764. 10 [Ala.] Scales v. State, 96 Ala. 69, 11 So. 121, 1892. [Tex.] Clark v. State, 29 Tex. App. 357, 16 S. W. 187, 1891. [Va.] Bennett v. Com. 8 Leigh, 745, 1837. 11 See [Fed.] United States v. Cor- nell, 2 Mason, 91, Fed. Cas. No. 14,868, 1821. [Ark.] Casat v. State, 40 Ark. 511, 1882. [Miss.] Wood- sides v. State, 2 How. (Miss.) 656, 1837. [Tenn.] Swan v. State, 4 Humph, 136, 1848. [Tex.] Moore v. State, 15 Tex. App. 1, 1883; Gomez v. State, 15 Tex. App. 327, 1884; Short v. State, 15 Tex. App. 370, 1884. [Va.] Whiteford v. Com. 6 Rand. (Va.) 721, 18 Am. Dec. 771, 1828. And see generally, Wharton, Crim. Ev. §§ 764 et seq. 12See McDaniel v. Com. 77 Va, 281, 4 Am, Crim. Rep. 369, 1883. 694 CRIMINAL LAW. [§ 507 of death was a club not so thick as an ax handle, the jury, under the charge of the court, rendered a verdict of murder in the first degree, it appearing that the blow was induced by a deliberate intention to take life,” though it was otherwise when the weapon was a crowbar, suddenly caught up.“ The same inference of premeditation is drawn with still greater strength from the declared purpose of the defendant,” as where the de- fendant said he intended “to lay for the deceased, if he froze, the next Saturday night,” and where the homicide took place that night; *® where he said: “I am determined to kill the man who injured me;” '” where he declared the day before the mur- der, that he certainly would shoot the deceased; ** where, in another case, the language was: “I will split down any fellow that is saucy;”?® and where a grave had been prepared a short time before the homicide, though the deceased was not ulti- mately placed in it, the whole plan of action being changed.” But inferences of this class are matters of reasoning, not of formal jurisprudence; and when the statute leaves the matter to the jury, a court is not justified in absolutely directing the jury to find for a particular degree.™ 18 Com. v. Murray, 2 Ashm. (Pa.) 41, 1834. 14 Kelly v. Com. 1 Grant, Cas. 484, 1858. When weapon was a plank, see Kelly v. State, 68 Miss. 343, 8 So. 745, 1891; Simpson v. State, 56 Ark. 8,19 S. W. 99, 1892. 15 Stewart v. State, 1 Ohio St. 66, 1853; Wharton, Crim. Ev. §§ 756 et seq. See State v. Dickson, 78 Mo. 439, 1883; Nevling v. Com. 98 Pa. 322, 1881. 16 Jim v. State, 5 Humph. 145, 1844. 17 See [Conn.] State v. Scheele, 57 Conn. 307, 14 Am. St. Rep. 106, 8 Atl. 256, 8 Am. Crim. Rep. 545, 1889. [Fla.] Hodge v. State, 26 Fla. 11, 7 So. 598, 1890. [N. H.] State v. Palmer, 65 N. H. 216, 20 Atl. 6, 8 Am. Crim. Rep. 196, 1889. [Pa.] Com. v. McManus, 143 Pa. 64, 14 L.R.A. 89, 21 Atl. 1018, 22 At!. 761, 1891. [Va.] Burgess v. Com. 2 Va. Cas. 483, 1825; McDonald v. State, — Tex. —, 22 S. W. 403, 1893. See also Wharton, Crim. Ev. §§ 756 et seq. 18 Com. v. Smith, 7 Smith’s Laws (Pa.) 696, 1816. See People v. Foy, 138 N. Y. 664, 34 N. E. 396, 1893. 19 [Pa.] Respublica v. Bob, 4 Dall. 145, 1 L. ed. 776, 1795. [Mich.] Peo- ple v. Hull, 86 Mich. 449, 49 N. W. 288, 1891. [Tenn.] Lancaster v. State, 91 Tenn. 267, 118 S. W. 777, 1892. 20Com. v. Zephon, 8 Watts & S. 382. See also Parker v. State, 135 Ind. 534, 23 L.R.A. 859, 85 N. E. 179, 1893. 21 Hopt v. Utah, 110 U. S. 574, 28 L. ed. 262, 4 Sup. Ct. Rep. 202, 1883; People v. Raten, 63 Cal. 421, 433, 1882; Wharton, Crim. Pl. & Pr. § 812. “The jury must not be imperative- ly required to render a verdict for a particular degree of homicide.” Adams v. State, 29 Ohio St. 415, 1876; Dresbach v. State, 38 Ohio St. 369, 1882. To same effect see Abernethy v. Com. 101 Pa. 322, 1882. See Robin- son v. State, 138 Ind. 499, 38 N. E. 45, 1894. § 508] HOMICIDE. 695 § 508. Killing B when the intent was to kill C is mur- der in the first degree. Where A, with intent to kill B, shoots at B, and kills C, without particular intent to kill C, the offense has been held murder at common law.’ Is it murder in the first degree under our statutes? Supposing the case to be one in which we can legitimately infer deliberation and intent, the answer, at the first view, would be in the affirmative. It is objected, however, that in such case there is no exclusive intent to take the life taken. But is this essential to murder in the first degree? If it be necessary to a conviction of murder in the first degree that such an intent should be exactly proved, could there be ever such a conviction? A, for instance, thinks that he is injured by B, and A, therefore, shoots B under the impression that he shoots one by whom he has been injured. But is this impression ever coincident with the truth? Can we recall any case of malice in which the defendant’s passions did not, more or less, create an ideal object of enmity? Would it be any defense to the shooting of B that A supposed B to be a different character from what he really was, and that therefore his shooting B was a mistake? If we negative these questions, we can only do so by assuming the position that the grade of a malicious homicide is not reduced by the fact that the defend- ant mistook his relations to the person whom he killed. And there are several collateral reasons, supposing that the person 1See supra, §§ 141-157, 441. [Miss.] Barcus v. State, 49 Miss. 17, 19 Am. Rep. 1, 1 Am. Crim. Rep. 249, 1873. [Nev.] State v. Raymond, 11 Nev. 98, 1876. [N. J.] State v. Cooper, 13 N. J. L. 361, 25 Am. Dec. 490, 1833. [N. Y.] Hollywood v. People, 2 Abb. App. Dec. 376, 3 Keyes, 55. [N. C.] State v. Benton, 19 N. C. (2 Dev. & B. L.) 196, 1836: State v. Fulkerson, 61 N. C. (1 Phill. L.) 288, 1867. [Ohio] Callahan v. State, 21 Ohio St. 306, 1871. [Tex.] Angell v. State, 36 Tex. 542, 14 Am. Rep. 380, 1872. See note, in 19 Am. Rep. 2. As to killing one person while at- tempting to kill another, see note in 18 Am. Dec. 786; also supra, § —. note —. In attempting to commit suicide accidentally killing another trying to prevent it is murder. Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109, 1877; State v. Levelle, 34 S. C. 120, 27 Am. St. Rep. 799, 13 S. E. 319, 1891. To the same effect, see [Ky.] Jen- nings v. Com. 13 Ky. L. Rep. 79, 16 S. W. 348, 1891. [Mo.] State v. Renfrow, 111 Mo. 589, 20 S. W. 299, 1892. [Pa.] Com. v. Dougherty, 7 Smith’s Laws (Pa.) 696, 1816; Com. v. Flavel, Vaux (Pa.) 157. [Wis.] Hoffman v. State, 88 Wis. 166, 59 N. W. 588, 1894, for murder in third degree. As differing from above, see Brat- ton v. State, 10 Humph. 103, 1849. In McConnell v. State, 18 Tex. App. 390, 18838, the grade in such cases is held to be murder in the second de- gree. CRIMINAL LAW. [§ 508 696 killed was the one whom the defendant aimed at, why we should not limit this principle by excluding from it cases where A kills C by mistaking him for B. First, in such a killing we have the constituents necessary to the guilt of murder in the first degree, —deliberation, intent, malice, and killing. Secondly, the policy of society eminently requires that life should be protected by the application of this principle; for while I may elude the attack of one with whom I know myself to be at enmity, no prudence on my part can ward off from me an attack which mistakes me for another, and to prevent such attack I must rely exclusively on the protection of the law. Thirdly, the question of particular intent is one as to which it is difficult to apply an exact gauge; and if it is necessary to prove in each case an exact intent to kill the particular person, just prosecutions must often fail, because in most cases, from the inherent im- perfection of evidence, no such proof can be supplied. At the same time we must remember, as we have already observed,” that were the question still open, the true course, in cases where the intent was to kill B, and C was negligently killed by the blow meant for B, C not having been aimed at by A, is to indict for an attempt to kill B, and for the negligent manslaugh- ter of 0.8 § 509. Grade of homicide when individual killed is one of a crowd attacked is determined by the general intent. Where A maliciously aims at a body of men, intending to kill any one of them, and kills B, the offense is murder in the first degree; if he intends only to hurt seriously, it is murder in the second degree.’ The first of these propositions is settled by the reasoning of the last section.” If A, intending maliciously to kill B, kills C instead of B, is guilty of murder in the first de- gree, a fortiori is this the case 2 Supra, §§ 157, 448, 444; and see Pliemling v. State, 46 Wis. 516, 1 N. W. 278, 3 Am. Crim. Rep. 211, 1879. See Com. v. Breyessee, 160 Pa. 451, 40 Am. St. Rep. 729, 28 Atl. 824, 1894, 8 Supra, §§ 140-148, 448, 444; in- fra, § 514, note 6. See Sims v. Com. 12 Ky. L. Rep. 215, 13 S. W. 1079, 1890; Musick v. State, 21 Tex. App. 69, 18 S. W. 95, 1886. 1See supra, §§ 443, 444; State ». where A, when killing C, kills Edwards, 71 Mo, 312, 1880; Aiken v. State, 10 Tex. App. 610, 1881. 2See supra, §§ 155, 156, 443, 444. In Alabama this is prescribed by statute, which, however, is only de- claratory of the common law; Pres- ley v. State, 59 Ala. 98, 1879; Wash- ington v. State, 60 Ala. 10, 31 Am. Rep. 28, 3 Am. Crim, Rep. 171, 1879; tae v. State, 88 Ala. 73, 7 So. 52, § 510] HOMICIDE. 697 one of a group of persons, some one of whom he intended to kill. On the other hand, if his intent was only to do serious bodily harm, his offense, though murder at common law, is only murder in the second degree under the Pennsylvania and cognate stat- utes, it not containing the necessary constituent of an intent to kill? § 510. Killing in perpetration, or attempt, of arson (or other offenses named in statute), not necessarily murder in first degree. It has sometimes been said that a homicide in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, or burglary, is, under the Pennsylvania and cognate statutes, murder in the first degree. But it must be remembered that the statutes under criticism do not say that “homicide,” when so committed, shall be murder in the first degree, but that “murder,” when so committed, shall be murder in the first de- gree. Nothing, therefore, that is not murder at common law can be murder either in the first or second degree; and we have first to inquire, in determining the grade of any particular hom- icide under the statutes, whether it is murder at common law. If it is not, then such homicide cannot be murder either in the first or the second degree under the statutes, although it is a homicide committed in perpetration of one of the specified felonies.? 8 Under Alabama Code the offense would be murder in the first degree. Washington v. State, 60 Ala. 10, 31 Am. Rep. 28, 3 Am. Crim. Rep. 171, 1879. As to firing through lighted win- dow into room where there are sev- eral persons, see ante, § 506, note 1. 1[Conn.] State v. Dowd, 19 Conn. 388, 1849. [Mo.] State v. Earnest, 70 Mo. 520, 1879. [Pa.] Com. ex rel. Chauncey v. Keeper, 2 Ashm. (Pa.) 227, 1838; Com. v. Hanlon, 3 Brewst. (Pa.) 461, 8 Phila. 401, 1870. [Tex.] Pharr v. State, 7 Tex. App. 472, 1879. [Va.] Com. v. Jones, 1 Leigh, 598, 1829, and comments in Whar- ton, Homicide, § 184. In New York this view does not seem to be accepted. People v. Van Steenburgh, 1 Park. Crim. Rep. 39, 1854, though see Buel v. People, 18 Hun, 489, 78 N. Y. 492, 34 Am. Rep. 555, 1879. On the other hand, if the offense would have been. As to liability for homicide by ac- cessories or those assisting in the commission of a burglary, see notes in 82 Am. St. Rep. 808 and 6 L.R.A. (N.S.) 1154; also People v. Giro, 197 N. Y. 152, 90 N. E. 432, 1910. As to what is extreme atrocity and cruelty, under Massachusetts stat- ute, see Com. v. Devlin, 126 Mass. 253, 1879. —In Virginia, where “wilful and ex- cessive whipping” is among the enu- merated instances, + verdict of mur- der in the first degree was sustained against a master for whipping a slave to death, though it was main- tained that the intent was to do only bodily harm. It should be ob- served, however, that in the Virginia act the term “other” is omitted be- fore the phrase “kind of wilful, etc., killing,” so that to some degree the bearing of the latter definition on the enumerated instances is weak- 698 CRIMINAL LAW. [§ 510 murder at common law, then, although there was no intent to take life, the case if the homicide were committed in the per- ened. Souther v. Com. 7 Gratt. 673, 1851. In committing or attempting to commit other felony, see [Ala.] Barnes v. State, 134 Ala. 36, 32 So. 670, 1902; Miller v. State, 145 Ala. 677, 40 So. 47, 1906; Moore v. State, 146 Ala. 687, 40 So. 345, 1906. [Cal.] People v. Milton, 145 Cal. 169, 78 Pac. 549, 1904. [Del.] State v. Reese, — Del. —, 79 Atl. 217, 1911. [D. C.] United States v. Evans, 28 App. D. ©. 264, 1906. [Ga.] Gadsden v. State, 134 Ga. 785, 68 S. E. 497, 1910. [Mass.] Com. v. Pemberton, 118 Mass. 36, 1875; Com. v. Chance, 174 Mass. 245, 75 Am. St. Rep. 306, 54 N. E. 551, 1889. [Mo.] State v. Meyers, 99 Mo. 107, 12 S. W. 516, 1889. [Neb.] Morgan v. State, 51 Neb. 672, 71 N. W. 788, 1897; Rhea v. State, 63 Neb. 461, 88 N. W. 789, 1902. [Nev.] State v. Mangano, — Nev. —, 112 Pac. 693, 1910. [N. Y.] People v. Flanigan, 174 N. Y. 356, 66 N. E. 988, 1903; People v. Monat, 200 N. Y. 308, 93 N. E. 982, 1911. [Okla.] Jewell v. Territory, 4 Okla. 53, 48 Pac. 1075, 1896; Reeves v. Territory, 10 Okla. 194, 61 Pac. 828, 1900. [Tex.] Norris v. State, 42 Tex. Crim. Rep. 559, 61 S. W. 493, 1901. [Va.] Dock v. Com. 21 Gratt. 909, 1872. See note in 18 Am. Dec. 786. —“Other felony” in Missouri stat- ute must be some felony not neces- sarily incident to the assault, see State v. Shock, 68 Mo. 552, 3 Am. Crim. Rep. 186, 1878; supra, § 503. —Murder first degree—Emanates from the felony.—A homicide, to be murder in the first degree under this clause, must be one emanating from the felony; not one to which the ielony was collateral. Pliemling v. State, 46 Wis. 516, 1 N. W. 278, 3 Am. Crim. Rep. 211, 1879. —Judge need not define these felo- nies. See [La.] State v. Tyler, 46 La. Ann. 1269, 15 So. 624, 1894. [Pa.] Com. v. Cleary, 135 Pa. 64, 8 L.R.A. 301, 19 Atl. 1017, 1890; Com. v. Manfredi, 162 Pa. 144, 29 Atl. 404, 1894; Leeper v. State, 29 Tex. App. 68, 14S. W. 398, 1890. [Tex.] Smith v. State, 31 Tex. Crim. Rep. 33, 19 S. W. 546, 1892. As to homicide in commission of unlawful act, see note in 90 Am. St. Rep. 571-583; monographie notes in 63 L.R.A. 353-406. Assaulting and beating woman and then abandoning her to lie in in- clement weather causing her death, assailant guilty of murder. State v. Rees, 40 Mont. 571, 107 Pac. 893, 1910. Breaking out of prison, homicide in, is murder. State v. Vaughan, 200 Mo. 1, 98 S. W. 2, 1906. In attempt to produce abortion, see 4 Bl. Com. 201; 1 Hale, P. C. 429. [Eng.] Tinckler’s Case, 1 East, P. C. 354. [Idaho] State v. Alcorn, 7 Idaho, 599, 97 Am. St. Rep. 252. 64 Pac. 1014, 1901. [Del.] State v. Lodge, 9 Houst. (Del.) 542, 83 Atl. 312; State v. Fleetwood, 6 Penn. (Del.) 158, 65 Atl. 772, 1906. [Ill] Beasley v. People, 89 Ill. 571, 1878; Clark v. People, 224 Ill. 554, 79 N. E. 941, 1906; Howard v. People, 185 Ill. 552, 57 N. E. 441, 1900. [Ind.j Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815, 1881. [Iowa] State v. Moore, 25 Iowa, 128, 95 Am. Dec. 776, 1868; State v. Thurman, 66 Towa, 6938, 24 N. W. 511, 6 Am. Crim. Rep. 16, 1885. [Me.] Smith v. State, 838 Me. 48, 54 Am. Dec. 607, 1851. [Mass.] Com. v. Parker, 9 Met. 263, 43 Am. Dec. 396, 1845; Com. v. Taylor, 182 Mass. 261, 1882. [Mich.] People v. Sessions, 58 Mich. 594, 26 N. W. 291, 1886. [Pa.] Com. ex rel. Chauncey v. Keeper of Prison, 2 Ashm. (Pa.) 227, 1838. [Wis.]j State v. Dickinson, 41 Wis. 299, 2 Am. Crim. Rep. 1, 1877. In attempt to perpetrate arson, see Reddick v. Com. 17 Ky. L. Rep. 1020, 33 S. W. 416, 1895. In perpetration of burglary, see [TIL] McMahon v. Pecple, 189 Ill. 222, 59 N. HE. 584, 1901. [Mo.] State v. Miller, 100 Mo. 616, 13 S. W. 832, 1051, 1890; State v. Stewart, 142 Mo. 412, 44 8. W. 240, 1898; State v. Vaughan, 200 Mo. 1, 98 S. W. 2, § 510] HOMICIDE. 699 petration or attempt at perpetration of an enumerated felony, is murder in the first degree under the statutes.® 1906. [N. Y.] Dolan v. People, 64 N. Y. 485, 1876; People v. Green- wall, 115 N. Y. 520, 22 N. E. 180, 1889; People v. Sullivan, 173 N. Y. 122, 63 L.R.A. 353, 93 Am. St. Rep. 582, 65 N. E. 989; People v. Huter, 184 N. Y. 237, 77 N. E. 6, 1906. [Ohio] Conrad v. State, 75 Ohio St. 52, 6 LR.A.(N.S.) 1154, 78 N. E. 957, 8 A. & H. Ann. Cas. 966, 1906. [Pa.] Com. v. Major, 198 Pa. 290, 82 Am. St. Rep. 803, 47 Atl. 741, 1901. [Tex.] Hedrick v. State, 40 Tex. Crim. Rep. 532, 51 S. W. 252, 1899. In attempt to commit rape or sodomy, see [Conn.] State v. Cross, 72 Conn. 722, 46 Atl. 148, 17 Am. Crim. Rep. 175, 1900. [La.] State v. Deschamps, 42 La. Ann. 567, 21 Am. St. Rep. 392, 7 So. 703, 1890. [Neb.] Morgan v. State, 51 Neb. 672, 71 N. W. 788, 1897. [N. H.] State v. Greenleaf, 71 N. H. 606, 54 Atl. 38, 1902. [N. J.] Titus v. State, 49 N. J. L. 36, 7 Atl. 621, 7 Am. Crim. Rep. 254, 1886. [N. Y.] Buel v. Peo- ple, 78 N. Y. 492, 34 Am. Rep. 555, 1879. —Strangling while attempting to ravish—In Buel v. People, 18 Hun, 489, 78 N. Y. 492, 34 Am. Rep. 555, 1879, the defendant, while attempt- ing to ravish a girl, passed a strap around her neck, by which she was strangled. This was held murder in the first degree; a decision not in- consistent with the text, as the of- fense would have been murder at common law. See to same effect, Cox v. People, 19 Hun, 430, 80 N. Y. 500, 1880, where the murder was incidental to burglary. See People v. Greenwall, 115 N. Y. 520, 22 N. E. 180, 1889; Williams v. State, 21 Tex. App. 256, 17 S. W. 624, 1891. In perpetrating robbery or in at- tempting to rob, see [Cal.] People v. Vasquez, 49 Cal. 560, 1875. [Idaho] People v. Mooney, 2 Idaho, 17, 2 Pac. 876, 1882. [Ind.] Moynihan v. State, 70 Ind. 126, 36 Am. Rep. 178. 1880. [Ky.] Com. v. Moore, 121 Ky. 97, 2 L.R.A.(N.S.) 719, 88 S. W. 1085, 11 A. & E. Ann. Cas. 1024, 1905. [Mo.] State v. Schmidt, 136 Mo. 644, 38 S. W. 719, 1897; State v. Foster, 136 Mo. 653, 38 S. W. 721, 1897; State v. Sexton, 147 Mo. 89, 48 S. W. 452, 1898; State v. McGinnis, 158 Mo. 105, 59 S. W. 83, 1900. [Neb.] Henry v. State, 51 Neb. 149, 66 Am. St. Rep. 45). 70 N. W. 924, 1897. [Nev.] Si > v. Gray, 19 Nev. 212, 8 Pac. 456, 1885; State v. Williams, 28 Nev. 395, 82 Pac. 353, 1905; State v. Mangano, — Nev. —, 112 Pac. 693, 1910. [N. H.] State v. Pike, 49 N. H. 399, 6 Am. Rep. 533, 1870. [N. J.} State v. Bonofiglio, 67 N. J. L. 239, 91 Am. St. Rep. 423, 52 Atl. 712, 1901. [N. Y.] People v. Giro, 197 N. Y. 152, 90 N. EH. 482, 1910. [Pa.] Com. v. Major, 198 Pa. 290, 82 Am. St. Rep. 803, 47 Atl. 741, 1901. [Tex.] Gonzales v. State, 19 Tex. App. 394, 1885; Giles v. State, 23 Tex. App. 281, 4 S. W. 886, 1887; Williams v. State, 30 Tex. App. 354, 17S. W. 408, 1891; Isaacs v. State, 36 Tex. Crim. Rep. 505, 38 S. W. 40, 1896; Garza v. State, 39 Tex. Crim. Rep. 358, 73 Am. St. Rep. 927, 46 8. W. 242, 1898; Rupe v. State, 42 Tex. Crim, Rep. 477, 61 S. W. 929, 1901; Milo v. State, 59 Tex. Crim. Rep. 196, 127 S. W. 1025, 1910. [Va.] Robertson v. Com. 1 Va. Dec. 851, 20 8. E. 362, 1894. —As to conspiracy for robbery, see People v. Olsen, 80 Cal. 122, 22 Pac. 125, 1889; State v. Brown, 7 Or. 186, 1879. —As to Missouri, see Shock v. State, 68 Mo. 552, 3 Am. Crim. Rep. 186, 1878; supra, § 503. —Murder in robbery—Associates liable—In People v. Vasquez, 49 Cal. 560, 1875, it was held that where several are engaged in the commis- sion of a robbery, and one of the associates does not intend to take life, and dissuades the others from taking life, yet he is guilty of mur- der in the first degree if one of them take life in furtherance of the plan to rob. See also Singleton v. State, 1 Tex. App. 501, 1877. 2Tbid. [Ind.] Moynihan v. State, 70 Ind. 126, 36 Am. Rep. 178, 1880. [Mass.] Com. v. Pemberton, 118 700 CRIMINAL LAW. [§ 511 § 511. Homicide committed by means of poison, or lying in wait, not necessarily murder in first degree. same observation applies to the agency of poison. by poison is not necessarily murder at common law.’ The A homicide If it is not, it is not murder in the first degree. At the same time, where the evidence shows that the death was effected by inten- tional and malicious poisoning, the court, where this is not pre- cluded by statute, may tell the jury that the offense is murder in the first degree.® Mass. 36, 1875. [N. Y.] Buel v. Peo- ple, 78 N. Y. 492, 34 Am. Rep. 555, 1879. [Pa.] Com. v. Hare, 2 Clark (Pa.) 467, 1844; Com. v. Daley, 2 Clark (Pa.) 361, 1844. [Tenn.] Riley v. State, 9 Humph. 646, 1849. [Tex.] Tooney v. State, 5 Tex. App. 163, 1878; Pharr v. State, 7 Tex. App. 472, 1879. [Va.] Howell v. Com. 26 Gratt. 995, 1875. 1Supra, § 471. See Dresback v. State, 88 Ohio St. 365, 1882. 2[Conn.] State v. Dowd, 19 Conn. 888, 1848. [Pa.] Com. ex rel. Chaun- cey v. Keeper of Prison, 2 Ashm. (Pa.) 227, 391, 1838. See Lane v. Com. 59 Pa. 371, 1868. [Va.] Com. v. Jones, 1 Leigh, 598, 1829; Souther v. Com. 7 Gratt. 673, 1851. When poison is administered in or- der to excite sexual passion, and death ensues, this is not death through intended poisoning so as to be murder in the first degree. Infra, § 805; Bechtelheimer v. State, 54 Ind. 128, 1876. As to distinction in Texas, see Tooney v. State, 5 Tex. App. 163, 1878. Connecticut doctrine——In State v. Dowd, 19 Conn. 388, 1848, the court said: “If any case can be supposed where murder may be committed by means of poison, and not be the re- sult of such an act (deliberate), then a conviction of murder in the second degree may be legal.” In Iowa — Chloroforming prison guards.—In State v. Wells, 61 Iowa, 638, 1888, the evidence was that the defendant, a convict in the state’s prison, administered to one of the guards, in order to effect an escape, chloroform in such quantities as to produce death. This was held to be murder in the first degree under a statute which provides that “all murder which is perpetrated by means of poison, of lying in wait, or by any kind of wilful, deliberate, and premeditated killing . . . is murder in the first degree.” In the opinion of the court there are some expressions to the effect that the clause above cited covers all cases of intentional poisoning. But the proper view is that only cases of murder at common law are, when effected. by poison, under this clause, murder in the first degree. That this particular case was murder at common law may be maintained on two grounds: (1) that the chloro- form was administered in such a way as to be a deadly poison; (2) that this offense was collateral to an indictable felony. In Missouri—Laudanum adminis- tered for fraudulent purpose—In State v. Wagner, 78 Mo. 644, 47 Am. Rep. 131, 1883, the poison was lauda- num administered to the deceased for the purpose of fraudulently in- ducing him to part with his prop- erty. This, being murder at common law, was held murder in the first degree under the Missouri statute; the court at the same time saying, “a homicide by poison is not neces- sarily murder at common law, Whar- ton, Homicide, § 92,” recognizing, therefore, the distinction in the text. 8 See supra, § 518. [Iowa] State v. Wells, 61 Iowa, 629, 47 Am. Rep. 822, 17 N. W. 90, 1883. [Mich.] People v. Hall, 48 Mich. 482, 42 Am. Rep. 477, 12 N. W. 665, 4 Am. Crim. Rep. 357, 1882. [N. C.] State v. Best, 111 N. C. 638, 15 S. E. 930, 1892. [Pa.] Shafiner v. Com. 72 Pa. § 513] HOMICIDE. 701 So also as to lying in wait. A man may lie in wait for another merely to commit a trespass; and if so, in case of an accidental killing, the offense, being only manslaughter at com- mon law, is only manslaughter under our statutes. But if an intentional homicide by lying in wait be proved, then such homi- cide is ordinarily murder in the first degree.* § 512. Homicide incidental to unenumerated felony is manslaughter. Where A, intending to commit a felony, the execution of which is not enumerated in the statutes as con- tributing to the definition of murder in the first degree, unin- tentionally kills B, the offense is manslaughter. A, for in- stance, shoots a tame fowl, and in so doing unintentionally and accidentally kills B. Is A guilty in this of murder in the second degree under our statutes? No doubt we have several obiter dicta of our judges answering this question in the affirma- tive, though no case exists in which the point has been directly affirmed. But if we are to hold, as we may justly do, that such an offense is only manslaughter at common law, then it is only manslaughter under our statutes.’ § 513. Under the statute, attempt must be a substan- tive offense. An “attempt” to commit one of the enumerated felonies, under the statutes, must consist of a substantive in- dictable offense. The word “attempt,” as thus used in the statutes must be construed strictly, as describing such an at- tempt as is indictable. Hence it is not sufficient, in order to bring the case under the statutes, that the homicide should have been committed while preparing to commit the felony in ques- tion;+ nor is it enough that the offense consists in mere solici- tation; or in purpose without distinctive overt act.” “An attempt to commit a rape, in which killing occurs, is necessarily an overt act, indicating the intent and purpose of the assault, of which clear proof, sufficient to place the fact beyond a rea- sonable doubt, should be given. A mere intention to commit 60, 18 Am. Rep. 649, 1872. [Tex.] 1See this point examined supra, Johnson v. State, 29 Tex. App. 150, §§ 444, et seq. 15 S. W. 647, 1890. [Wis.] Zoldoske 1See supra, § 228. v. State, 82 Wis. 580, 52 N. W. 778, 2Supra, § 218. 1892. See Bittle v. State, 78 Md. 526, 4See People v. Miles, 55 Cal. 207, 28 Atl. 405, 1894. 1880; White v. State, 30 Tex. App. 652, 18 S. W. 462, 1892. 702 CRIMINAL LAW. [§ 513 the offense is nothing, unless accompanied by acts directed to- ward its accomplishment. The killing, to constitute the crime of murder, without the specific intent to take life, must be clearly shown by the prosecution to have occurred in the per- formance of such acts as should establish the independent sub- stantive crime.” ® § 514. Murder in second degree includes what.—Mind in such a state as to be incapable of specific intent. Murder in the second degree includes all cases of common-law murder’ where the intention was not to take life, of which murder, when the intent was only to do great bodily hurt, may be taken as a leading illustration.? There may, also, be cases where death ensues during a riotous affray, under circumstances which would constitute murder at common law, but which, in consequence of the want of a specific intent to take life being shown, amount but to murder in the second degree. And this is the case generally wherever the mind, from any form of dis- turbance, is incapable of framing a specific purpose.* 3 Thompson, C. J., Kelly v. Com. 1 Grant, Cas. 484, 1858. See Com. v. Manfredi, 162 Pa. 144, 29 Atl. 404, 1894, 1“Malice aforethought” is essen- tial, see [Cal.] People v. Grigsby, 62 Cal. 482, 1881. [Ind.] Brooks v. State, 90 Ind. 428, 1882. [Mo.] State v. Curtis, 70 Mo. 594, 1879; State v. Stoeckli, 71 Mo. 559, 1880. [Neb.] Bohanan v. State, 15 Neb. 209, 18 N. W. 129, 1883. [N. Y.] Daly v. People, 32 Hun, 182, 1884. 2See [Ala.] Washington v. State, 53 Ala. 29, 1875. [Ark.] Harris v. State, 36 Ark, 127, 1880. [Del.] State v. Jones, Houst. Crim. Rep. (Del.) 21, 1857; State v. Hamilton, Houst. Crim, Rep. (Del.) 101, 1860; State v. Gardner, Houst. Crim. Rep. (Del.) 146, 1864; State v. Green, Houst. Crim. Rep. (Del.) 217, 1866: State v. Till, Houst. Crim. Rep. (Del.) 238, 1867; State v. Boice, Houst. Crim. Rep. (Del.) 355, 1871; State v. Rhodes, Houst. Crim. Rep. (Del.) 476, 1877. [Iowa] State v. Decklotts, 19 Iowa, 447, 1865; State v. Baldwin, 79 Towa, 714, 45 N. W. 297, 8 Am. Crim. Rep. 566, 1890. [Minn.] State v. Scott, 41 Minn, 365, It has 43 N. W. 62, 1889. [Mo.] State v. Hill, 69 Mo. 451, 1879; State v. Rob inson, 73 Mo. 306, 1881. [Pa.] Com. v. Dougherty, 7 Smith’s Laws (Pa.} 695, 1828. [Tex.] Caldwell v. State. 41 Tex. 86, 1874; Hill v. State, 1] Tex. App. 456, 1881. [Va.] White- ford vy. Com. 6 Rand. (Va.) 721, 18 Am. Dec. 771, 1828. Compare: [Fla.] Golding v. State, 26 Fla. 530, 8 So. 311, 1890. [Mo.] State v. Mitchell, 98 Mo. 657, 12 § W. 379, 1889. [Mont.] State v. Baker, 138 Mont. 160, 32 Pac. 647, 1893. 3Com. v. Neills, 2 Brewst. (Pa.) 558, 1868; Com. v. Hare, 2 Clark (Pa.) 467, 1844; supra, §§ 64, 154. Mental excitement produced by in- sulting words.—That mental excite- ment and disturbance produced by insults consisting only of words may reduce the offense to murder in the seccnd degree. State v. Ellis, 74 Mo. 207, 1881; State v. Kotovsky, 74 Mo. 247, 1881. See State v. Estep, 44 Kan. 572, 24 Pac. 986, 1890; Stute v, Crawford, 115 Mo. 620, 22 S. W. 871, 1893. 4Murder in the second degree— Under statutes of Texas. See Jacobs § 515] HOMICIDE. 703. been also held that where the offense is murder, but there is no proof of intent, the grade is the second degree.® But premedi- tation is essential, as in other cases of murder.® § 515. Murder in drunkenness is murder in the second degree. When the defendant is in such a state of drunken- ness as to be incapable of forming a specific intent to take life, then the offense, if murder at common law, is murder in the second degree under the statutes.? v. State, 28 Tex. App. 79, 12 S. W. 408, 1889; Powell v. State. 28 Tex. App. 393, 13 S. W. 599, 1890; Coch- ran v. State, 28 Tex. App. 422, 13 S. W. 651, 8 Am. Crim. Rep. 496, 1890; Surrell v. State, 29 Tex. App. 321, 15 8. W. 816, 1890; Jones v. State, 29 Tex. App. 338, 15 S. W. 403, 1890; Baltrip v. State, 30 Tex. App. 545, 17 S. W. 1106, 1891; Simmons v. State, 31 Tex. Crim. Rep. 227, 20 S. W. 573, 1892; Hardy v. State, 31 Tex. Crim. Rep. 289, 20 S. W. 561, 1892; Knowles v. State, 31 Tex. Crim, Rep. 383, 20 8S. W. 829, 1892; Ex parte Jones, 31 Tex. Crim. Rep. 422, 20 S. W. 983, 1893; Skaggs v. State, 31 Tex. Crim. Rep. 563, 21 S. W. 257, 1893; Warren v. State, 31 Tex. Crim. Rep. 573, 21 8S. W. 680, 1898; Coyle v. State, 31 Tex. Crim. Rep. 604, 21 8. W. 765, 1893; Child- ers v. State, — Tex. App. —, 13 8. W. 650, 1890; Fisher v. State, — Tex. App. —, 13 S. W. 778, 1890; May v. State, — Tex. Crim. Rep. —, 20 S. W. 396, 1892; Green v. State, — Tex. Crim. Rep. —, 20 8. W. 712, 1892; Pace v. State, — Tex. Crim. Rep. —, 20 8. W. 762, 1892; Gibbs v. State, — Tex. Crim. Rep. —, 20 S. W. 919, 1892; Crow v. State, —- Tex. Crim. Rep. —, 21 8. W. 543, 1893. —lIn other states. [Colo.] Kelly v. People, 17 Colo. 130, 29 Pac. 805, 1891. [Fla.] Johnson v. State, 24 Fla. 162, 4 So. 535, 1888. [Idaho] State v. O’Brien, 3 Idaho, 374, 29 Pac. 38, 1892. [Iowa] State v. Pef- fers, 80 Iowa, 580, 46 N. W. 662, 1890. [Mo.] State v. Elkins, 101 Mo. 844, 14 S. W. 116, 1890; State v. Nelson, 101 Mo. 464, 14 S. W. 712, 1890; State v. Howard, 102 Mo. 142, 14 S. W. 987, 1890; State v. Moxley, “Implied malice is sufficient 102 Mo. 374, 14 S. W. 969, 15 S. W. 556, 1890; State v. McKinzie, 102 Mo. 620, 15 S. W. 149, 1890. [Neb.] Bohanan v. State, 15 Neb. 209, 18 N. W. 129, 1883. [Pa.] Jacobs v. Com. 22 W. N. C. 268, 1888. [Tenn.] Tur- ner v. State, 89 Tenn. 547, 15 S. W. 838, 1891. [Wash.] State v. Freid- rich, 4 Wash. 204, 29 Pac. 1055, 30 Pac. 328, 31 Pac. 332, 1892. See also supra, § 64. 5 Harris v. State, 8 Tex. App. 90, 1880; Douglass v. State, 8 Tex. App. 520, 1880; Hubby v. State, 8 Tex. App. 597, 1880; Melcik v. State, 33 Tex. Crim. Rep. 14, 24 8. W. 417, 1893. See State v. Lewis, 118 Mo. 79, 23 S. W. 1082, 1893. 6 [Mo.] State v. Lewis, 74 Mo. 222, 1881; State v. Fairlamb, 121 Mo. 137, 25 S. W. 895, 1894; State v. Punshon, 124 Mo. 448, 27 S. W. 1111, 1894. [Tex.] Gonzales v. State, 31 Tex. Crim. Rep. 508, 21 S. W. 253, 1893. [Va.] Shipp v. Com. 86 Va. 746, 10 S. E. 1065, 1890. [W. Va.] State v. Scott, 36 W. Va. 704, 15 S. E. 405, 1892. 1See cases cited supra, §§, 64, 65, 68, 69; Willis v. Com. 32 Gratt. 929, 1879; State v. Trivas, 32 La. Ann. 1086, 36 Am. Rep. 293, 1880. Intoxication on part of accused at time of homicide may have effect of reducing offense from murder to manslaughter, where it is shown to have been so excessive as to render accused incapable to form deliberate design to take life. [Ala.] Spring- field v. State, 96 Ala. 81, 38 Am. St. Rep. 85, 11 So. 250, 1891. [Cal.] People v. Miller, 114 Cal. 10, 45 Pac. 986, 1896; People v. Methever, 132 Cal. 326, 64 Pac. 481, 1901. [Colo.} Brennan v. People, 37 Colo. 256, 86 Pac. 79, 1906. [Conn.] State v. 704 CRIMINAL LAW. [§ 515 at common law to make the offense murder, and under our statute to make it murder in the second degree; but to consti- Johnson, 40 Conn. 136, 41 Conn. 585, 1873. [Del.] State v. Faino, 1 Marv. (Del.) 492, 41 Atl. 134, 1894; State v. Adams, 6 Penn. (Del.) 178, 65 Atl. 510, 1906. [Fla.] Garner v. State, 28 Fla. 113, 29 Am. St. Rep. 232, 9 So. 835, 1891. [Ind.] Cluck v. State, 40 Ind. 263, 1872. [Iowa] State v. Williams, 122 Iowa, 115, 97 N. W. 992, 1904; State v. Pell, 140 Iowa, 655, 119 N. W. 154, 1909. [Ky.]j Shannahan v. Com. 8 Bush, 463, 8 Am. Rep. 465, 1871, overruling Smith v. Com. 1 Duv, 224, 1864, and Blimm v. Com. 7 Bush, 320, 1870. [La.] State v. Kraemer, 49 La. Ann. 766, 62 Am. St. Rep. 664, 22 So. 254, 1897. [Mass.] Com. v. Dorsey, 103 Mass. 412, 1869. [Mich.] Roberts v. People 19 Mich. 401, 1870. [N. J.J Warner v. State, 56 N. J. L. 686, 44 Am. St. Rep. 415, 29 Atl. 505, 9 Am. Crim. Rep. 526, 1894; Wilson v. State, 60 N. J. L. 171, 37 Atl. 594, 38 Atl. 428, 1897. [N. Y.] People v. Pekarz, 185 N. Y. 470, 78 N. E. 294, 1906; People v. Koerner, 117 App. Div. 40, 102 N. Y. Supp. 93, 1907. [Ohio] Nichols v. State, 8 Ohio St. 438, 1858; Pigman v. State, 14 Ohio, 555, 45 Am. Dec. 558, 1846; Lytle v. State, 31 Ohio St. 200, 1877. {Okla.] Morris v. Territory, 1 Okla. Crim. Rep. 617, 99 Pac. 760, 101 Pac. 111, 1909. [Or.] State v. Weaver, 35 Or. 415, 58 Pac. 109, 1899. [Pa.] Jones v. Com. 75 Pa. 403, 1 Am. Crim. Rep. 262, 1874; Com. v. Eyler, 217 Pa, 512, 11 L.R.A.(N.S.) 639, 66 Atl. 746, 10 A. & EH, Ann. Cas. 786, 1907; Com. v. Nazarko, 224 Pa. 204, 73 Atl. 210, 1909; Com. v. Detweiler, 229 Pa. 304, 78 Atl. 271, 1910. [Tenn.] Atkins v. State, 119 Tenn. 458, 13 L.R.A.(N.S.) 1031, 105 S. W. 353, 1907. [Tex.] Carter v. State, 12 Tex. 500, 62 Am. Dec. 539, 1854; Evers v. State, 31 Tex. Crim. Rep. 318, 18 L.R.A. 421, 87 Am. St. Rep. 811, 20 S. W. 794, 1892. [W. Va.] State v. Robinson, 20 W. Va. 713, 43 Am. Rep. 799, 1882; State v. Davis, 52 W. Va. 224, 43 S. E. 99, 1902. [Wis.] Hempton v. State, 111 Wis. 127, 86 N. W. 596, 12 Am. Crim. Rep. 657, 1901. [Wyo.] Gustaven- son v. State, 10 Wyo. 300, 68 Pac. 1006, 1902. : See also notes 18 Am. Dec. 781, 782; 29 Am. St. Rep. 256, 37 Am. St. Rep. 821; 44 Am. St. Rep. 423. Intoxication voluntarily incurred, or insanity of a temporary character, produced by excessive indulgence in intoxicating liquors, is no excuse for a homicide. [Fla.] Thomas v. State, 47 Fla. 99, 36 So. 161, 1904. [Ind.] Surber v.* State, 99 Ind. 71, 1884; Aszman v. State, 123 Ind. 347, 8 L.R.A, 38, 24 N. E, 123, 1890. [Ky.] Wright v. Com. 24 Ky. L. Rep. 1838, 72 S. W. 340, 1903. [La.] State v. Kraemer, 49 La. Ann. 766, 62 Am. St. Rep. 664, 22 So. 254, 1897. [Mich.] Roberts v. People, 19 Mich. 401, 1870. [Miss.] Butler v. State, — Miss. —, 39 So. 1005, 1906. [Mo.] State v. Kindred, 148 Mo. 270, 49 S. W. 845, 1899. [Or.] State v. Weaver, 35 Or. 415, 58 Pac. 109, 1909. [Pa.] Com. v. Dudash, 204 Pa. 124, 53 Atl. 756, 1902. [Tex.] Carter v. State, 12 Tex. 500, 62 Am. Dec, 539, 1854. [Va.] Longley v. Com. 99 Va. 807, 37 S. E. 339, 1900. As to when voluntary intoxication lessens accountability for crime, see note, 7 Am. St. Rep. 21. Intoxication to such a degree as to render accused incapable of know- ing the nature and quality of his act or to distinguish right from wrong is no defense to homicide. State v. Rumble, 81 Kan. 16, 25 L.R.A.(N.8.) 376, 105 Pac. 1, 1909. In ease of voluntary intoxication to such an extent that accused did not know what he was about, in which condition, without provoca- tion, he assaulted and killed another he was held guilty of murder in the second degree. Henslee v. State, 97 Ark, 108, 183 S. W. 172, 1910; State v. Trapp, 56 Or. 588, 109 Pac. 1094, 1910; Gustavenson v. State, 10 Wyo. 300, 68 Pac. 1006, 1902. —Insane man getting drunk is not deprived by such drunkenness of his right to set up the defense of in- sanity; but the defense must be § 515] tute murder in the first degree, HOMICIDE. 705 actual malice must be proved. Upon this question the state of the prisoner’s mind is material. In behalf of the defense, insanity, intoxication, or any other fact which tends to prove that the prisoner was incapable of deliberation, was competent evidence for the jury to weigh. Intoxication is admissible in such cases, not as an excuse for crime, but as tending to show that the less and not the greater offense was in fact committed.” ® When, however, the defendant based upon the original insanity, and not upon insanity produced by the intoxicating liquors. State v. Krae- mer, 49 La, Ann. 766, 62° Am. St. Rep. 664, 22 So. 254, 1897. —Previously having determined to commit a homicide, voluntary drink- ing of intoxicating liquors will con- stitute no defense. People v. Koer- ner, 191 N. Y. 258, 1908, affirming 117 App. Div. 40, 102 N. Y. Supp. 93, 1907; State v. Kidwell, 62 W. Va. 466, 13 L-R.A.(N.S.) 1024, 59 S. E. 494, 1907. Delirium tremens of such a char- acter as to deprive the accused of the power to distinguish between right and wrong is a defense to homicide, whether the accused was under the influence of liquor at the time of commission of the homicide or not. State v. Kidwell, 62 W. Va. 466, 13 L.R.A.(N.S.) 1024, 59 S. E. 494, 1907. In the case of State v. Kraemer, 49 La. Ann. 766, 62 Am. St. Rep. 664, 22 So. 254, 1897, it is held that ac- cused is not relieved, under such cir- cumstances, unless such delirium tre- mens antedated the fit of drunken- ness during which such act was com- mitted. 2Carpenter, J., State v. Johnson, 40 Conn. 136, 18738. See: [Cal.] People v. Young, 102 Cal. 411, 36 Pac. 770, 1894. [Ill] Upstone v. People, 109 Ill. 169, 4 Am. Crim. Rep. 395, 1888. [Pa.] Com. v. Haggerty, Lewis, Crim, Law, 403, 1847. [Tenn.] Pirtle v. State, 9 Humph. 664, 1848. [Va.] Com. v. Jones, 1 Leigh, 610, 1829. Deliberate intent to kill—When necessary.—“Except in the case of murder, which happens in conse- quence of actual or attempted ar- son, rape, robbery, or burglary,” says Crim. L. Vol. I.—45. Judge Lewis, of the supreme court of Pennsylvania, “a deliberate intention to kill is the essential feature of murder in the first degree. When this ingredient is absent; where the mind, from intoxication or any other cause, is deprived of its power to form a de- sign with deliberation and premedita- tion,—the offense is stripped of the malignant features required by the statute to place it on the list of cap- ital crimes; and neither courts nor juries can Jawfully dispense with what the act of assembly requires.” Lewis, Crim. Law, 405. And see [Ala.] King v. State, 90 Ala. 612, 8 So. 856, 1891. [Ga.] Hanvey v. State, 68 Ga. 612, 1882; Moon v. State, 68 Ga. 687, 1882. [Ind.] Asz- man-v. State, 123 Ind. 347, 8 L.R.A. 33, 24 N. E. 123, 1889. [La.] State v. Ashley, 45 La. Ann. 1036, 13 So. 738, 1893. [N. J.] Warner v. State, 56 N. J. L. 686, 44 Am. St. Rep. 415, 29 Atl. 505, 9 Am. Crim. Rep. 526, 1894. [N. Y.] People v. Leonardi, 143 N. Y. 360, 38 N. E. 372, 1894. [Pa.] Com. v. Cleary, 135 Pa. 64, 8 L.R.A. 301, 19 Atl. 1017, 1890. [Tenn.] Haile v. State, 11 Humph. 154, 1851. [Tex.] Evers v. State, 31 Tex. Crim. Rep. 318, 18 L.R.A. 421, 37 Am. St. Rep. 811, 20 S. W. 744, 1892. [Va.] Hodges v. Com. 89 Va. 265, 15 S. EH. 513, 1892. Verdict in manslaughter. ([Cal.] People v. Vincent, 95 Cal. 425, 30 Pac. 581, 1892. [Kan.] State v. O’Neil, 51 Kan. 651, 24 L.R.A. 555, 83 Pac. 287, 1893. [Ky.] Hall v. Com. 12 Ky. L. Rep. 214, 13 S. W. 1082, 1890. [Or.] State v. Zorn, 22 Or, 591, 30 Pac. 317, 1892. [Wis.] Bernhardt v. State, 82 Wis. 23, 51 N. W. 1009, 1892. CRIMINAL LAW. [§ 515 =~ > oc voluntarily made himself drunk in anticipation of the crime, the offense is murder in the first degree.* § 516. Killing a woman in an attempt to produce abor- tion, murder in the second degree. As has been already no- ticed, if a pregnant woman be killed in an attempt to produce abortion in her, and it appears that the design of the operator wag not to take the life of the mother, the offense has been held murder in the second degree.’ And on the principles already expressed, this may be defended in all cases where the intent was to do the mother serious bodily harm. Where there is no such intent, the proper course is to indict separately for the manslaughter of the mother, and for the perpetration of the abortion. § 517. Murder in second degree, a compromise courts are unwilling to disturb. Aside from murder in the com- mission of enumerated felonies, the rule is that where the delib- erate intention is to take life, and death ensues, it is murder in the first degree ; where it is to do serious bodily harm, and death ensues, it is murder in the second degree; while the common- law definition of manslaughter remains unaltered. This dis- tinction, however, cannot always be preserved. In _ those jurisdictions where the juries are entitled to take control of the law, it of course gives way to other tests more agreeable to the prejudices of the particular case. And even where the court assumes its proper province, and where it lays down the law with precision and fullness, a jury is apt to seize upon murder in the second degree as a compromise, when they think murder has been committed, but are unwilling, in consequence of cir- cumstances of mitigation, to expose the defendant to its full 3Supra, § 66; [Fla.] Garner v. State, 28 Fla. 113, 29 Am. St. Rep. 232, 9 So. 835, 1891. [Ind.] Sanders v. State, 94 Ind. 147, 1883. [Kan.j State v. O’Neil, 51 Kan. 651, 24 L.R.A. 555, 38 Pac, 387, 1893. [Pa.] Nevling v. Com. 98 Pa. 323, 1881. [Tex.] Houston v. State. — Tex. App. —, 14 S. W. 352, 1883. [W. Va.| State v. Robinson, 20 W. Va. 713, 43 Am. Rep. 799, 1863. 1; infra, § 577. [Ill.] Yundt v. Peo- ple, 65 Ill. 372, 1872. [Iowa] State v. Moore, 25 Iowa, 128, 95 Am. Dec. 776, 1867. [Mass.] Com. v. Jackson, 15 Gray, 187, 1860. [Or.] State v. Bowker, 26 Or. 309, 38 Pac. 124, 9 Am. Crim. Rep. 365, 1894. [Pa.] Com. ex re]. Chauncey v. Keeper of Prison, 2 Ashm, (Pa.) 227, 1838. As to killing woman in attempted abortion, see supra, § £10, footnote 1 Supra, §§ 440, 450, 510, footnote 1 § 518] HOMICIDE. 707 penalties. In such cases courts are not disposed to disturb verdicts, but permit them to stand, though technically incorrect.* § 518. In cases of doubt, presumption is for murder in second degree. The character of the presumption to be drawn in cases of malicious killing is elsewhere independently dis- cussed.’ It is scarcely necessary here to repeat that such a presumption is an inference of fact to be drawn from all the circumstances of the particular case. Wherever the killing is with a deadly weapon, and there is evidence aliunde showing that this was intentionally, deliberately, and unjustifiably used, then the inference, as we have just seen, is that of an intent to take life, and the case is murder in the first degree. The bur- den, however, of proving this is on the prosecution.” Stripping the case of these incidents, however, and supposing that simply a malicious killing be proved, then the inference is of murder in the second degree.® 1 Wharton, Homicide, § 193. [Iowa] State v. Mewherter, 46 Iowa, 88, 1877. [Mo.] State v. Ostrander, 30 Mo. 18, 1852; State v. Cooper, 71 Mo. 436, 1880. [Tex.] Blain v. State, 33 Tex. Crim. Rep. 236, 26 S. W. 63, 1894. [Va.] Slaughter v. Com. 11 Leigh, 681, 37 Am. Dec. 638, 1841. Compare: Clem v. State, 42 Ind. 420, 13 Am. Rep. 369, 1878; State v. Mahly, 68 Mo. 315, 3 Am. Crim. Rep. 183, 1878. 1See Wharton, Crim. Ev. §§ 734, 764. 2[Cal.] People v. Elliott, 80 Cal. 296, 22 Pac. 207, 1889. [Ill.] Lyons v. People, 137 Ill. 602, 27 N. E. 677, 1891; Smith v. People, 141 Il]. 447, 31 N. E. 425, 1892. [N. J.] Warner v. State, 56 N. J. Ly 686, 44 Am. St. Rep. 415, 29 Atl. 505, 9 Am. Crim. Rep. 526, 1894. [N. Y.] People v. Pallister, 1838 N. Y. 601, 33 N. E. 741, 1893. [Pa.] Murray v. Com. 79 Pa, 311, 1875; Kehoe v. Com. 85 Pa. 127, 1877. 3 Supra, § 154; Wharton, Crim. Ev. §§ 334, 721; 6 Enc. Ev. p. 591. [Ala.] Green v. State, 69 Ala. 6, 1881. [Fla.] Hodge v. State, 26 Fla. 11, 7 So. 593, 1890. [Ga.] Davis v. State, 10 Ga. 101, 1851. [Iowa] State v. Walters, 45 Iowa, 389, 1877. [Mo.] State v. Holme, 54 Mo. 153, 1873; State v. Evans, 65 Mo. 574, 1877; State v. Wingo, 66 Mo. 181, 27 Am. Rep. 329, 1877; State v. Testerman, 68 Mo. 408, 1878; State v. Eaton, 75 Mo. 586, 1881; State v. Phelps, 76 Mo. 319, 1882. [Neb.j] Preuit v. People, 5 Neb. 377, 1869; Milton v. State, 6 Neb. 136, 1877. [Pa.] Com. v. Drum, 58 Pa. 9, 1858; O’Mara v. Com. 75 Pa, 424, 1874. [Tenn.] Mitchell v. State, 5 Yerg. 340, 1833; Witt v. State, 6 Coldw. 5, 1868. [Tex.] Hamby v. State, 36 Tex. 523, 1871. [Va.] Hill v. Com. 2 Gratt. 594, 1845; McDaniel v. Com. 77 Va. 281, 4 Am. Crim. Rep. 369, 1883; McCue v. Com. 78 Pa. 185, 1875. Presumption of malice in homi- cide—In a Texas case it is said: “When a homicide has been proven, that fact alone authorizes the pre- sumption of malice, and unexplained would warrant a verdict for murder in the second degree. But express and premeditated malice can never be presumed; it is evidenced by for- mer grudges, previous threats, lying in wait, or some concerted scheme to kill, or do some bodily harm, as poi- soning, starving, torturing, or the attempted perpetration of rape, rob- bery, or burglary, and these evi- dences of express malice, or some one of them, must be proven as directly 708 CRIMINAL LAW. [§ 519 § 519. Common-law indictment for murder sustains either degree. Under the statutes a common-law indictment for murder is sufficient to sustain a verdict of guilty of murder either in the first or the second degree. It being held, as has already been seen fully, that the line separating murder from manslaughter is in no way changed by our statutes; and it being further seen that murder in the second degree is simply murder at common law with certain aggravating features dis- charged, it follows that on a common-law indictment for murder a verdict of murder either in the first or in the second degree can be sustained. So, indeed, have our courts, in many in- stances, ruled... The same principle has been recognized in as the homicide, before the jury are authorized in finding a verdict for murder in the first degree. “The distinction between murder in the first and second degree has been so often discussed by this court that we deem it necessary here only to refer to a few cases deciding this question: McCoy v. The State, 25 Tex. 33, 78 Am. Dec. 520, 1860; Maria v. State, 28 Tex. 698, 1866; Ake v. State, 30 Tex. 466, 1867; Lindsay v. State, 36 Tex. 337, and Williams v. State, 35 Tex. 355.” Ogden, J., Hamby v. State, 36 Tex. 523, 1872; supra, § 503. 1 [Ark.] McAdams v. State, 25 Ark. 405, 1869. [Cal.] People v. Lloyd, 9 Cal. 54, 1857; People v. Bonilla, 38 Cal. 699, 1870. [Colo.] Garvey v. People, 6 Colo. 559, 45 Am. Rep. 531, 1882; 7 Colo. 384, 49 Am. Rep. 358, 3 Pac. 903, 4 Am. Crim. Rep. 254, 1884. [Conn.] State v. Hamlin, 47 Conn. 117, 36 Am. Rep. 54, 1879. [Dak.] Territory v. Bannigan, 1 Dak. 451, 46 N. W. 597, 1877. [Fla.] Cooper v. State, 47 Fla. 21, 36 So. 58, 1904. [Idaho] People v. Ah Choy, 1 Idaho, 317, 1874. [La.] State v. Johnson, 104 La. 417, 81 Am. St. Rep. 189, 29 So. 24, 1900; State v. Voorhies, 115 La. 200, 38 So. 964, 1905. [Me.] State v. Ver- ril, 54 Me. 408, 1866. [Md.] Davis v. State, 39 Md. 355, 1873. [Mass.] Green v. Com. 12 Allen, 155, 1866. [Mich.] Cargen v. People, 39 Mich. 549, 1878. [Minn.] State v. Lessing, 16 Minn. 75, Gil. 64, 1870. [Mo.] State v. Cook, 170 Mo. 210, 70 S. W. 483, 1902. [Nev.] State v. Millain, 3 Nev. 409, 1866; State v. Thompson, 12 Nev. 140, 1877; State v. Hing, 16 Nev. 307, 4 Am. Crim. Rep. 375, 1882. [N. H.] State v. Pike, 49 N. H. 399, 6 Am. Rep. 533, 1869. [N. J.] Graves v. State, 45 N. J. L. 347, 46 Am. Rep. 778, 1881. [N. Y.] Fitz- gerrold v. People, 37 N. Y. 413, 1867; Kennedy v. People, 39 N. Y. 245, 1880; Cox v. People, 80 N. Y. 500, 1880; People v. Osmond, 138 N. Y. 80, 338 N. E. 739, 1893. [Okla.] Jewell v. Territory, 4 Okla. 53, 43 Pac. 1075, 1896; Perkins v. Terri- tory, 10 Okla. 506, 63 Pac. 860, 1900. [Pa.] White v. Com. 6 Binn. 179, 6 Am. Dec. 448, 1813; Com. v. Flan- agan, 7 Watts & S. 415, 1844. [Tenn.] Mitchell v. State, 5 Yerg. 340, 1833; Hines v. State, 8 Humph. 597, 1848; Poole v. State, 2 Baxt. 288, 1872; Taylor v. State, 11 Lea, 708, 1883. [Tex.] Gehrke v. State, 13 Tex. 568, 1855; Wall v. State, 18 Tex. 682, 70 Am. Dec. 302, 1857; Henrie v. State, 41 Tex. 573, 1875; Bohannon v. State, 14 Tex. App. 280, 1883, [Utah] Brannigan v. Terri- tory, 3 Utah, 488, 24 Pac. 767, 1869. [Va.] Com. v. Miller, 1 Va. Cas. 310, 1812; Wicks v. Com. 2 Va. Cas. 387, 1824; Livingston’s Case, 14 Gratt. 592, 1857; Kibler v. Com. 94 Va. 804, 26 S. EH. 858, 1897. [Wash.] Leschi v. Territory, 1 Wash. Terr. 18, 1857; State v. Yandell, 34 Wash. 409, 75 Pac. 988, 1904. [Wis.] Hogan v. § 519] HOMICIDE, 709 cases where murder is committed in the attempt to commit arson, rape, robbery, ete., in which cases the specific intent need not be alleged.? These rulings were first made in Pennsyl- vania, a state which was the earliest to legislate on this subject; and it needs but a glance at the statutes and their history to see that the interpretation then given to them by the courts is oe 30 Wis. 437, 11 Am. Rep, 575, 872. In case of State v. Pike, 49 N. H. 399, 6 Am. Rep. 533, 1870, Smith Jay says that the statute creates no new offense; that murder in the first and murder in the second de- grees are not two distinct crimes, the statute merely divides murder into two degrees; that the punishment for the higher grade of the crime is not changed; that all which the stat- ute does is to provide the milder punishment of imprisonment for murder of the second degree; all murder having before been punish- able by death; that the statute only specifies certain things, which, if found by the jury, shall require them to bring in a verdict subjecting the prisoner to death, while, if they are not so found, the verdict shall be one authorizing imprisonment merely. The numerical weight of authority is decidedly in favor of this view, and holds an indictment at common law sufficient under the statute. See among many other cases: ([Cal.] People v. Murray, 10 Cal. 309, 1858. [Me.] State v. Verrill, 54 Me. 408, 1867. [Mass.] Green v. Com. 12 AI- Jen, 155, 1866. [N. Y.] Fitzgerrold v. People, 37 N. Y. 417, 685, 1868; Ken- nedy v. People, 39 N. Y. 245, 1868. [Pa.] Com. v. Flanagan, 7 Watts & S. 415, 1844. [Tenn.] Mitchell v. State, 8 Yerg. 514, 1835. [Tex.] Gehrke v. State, 13 Tex. 568, 1855. Compare: Fouts v. State, 4 G. Greene, 500, seriously questioned if not overruled in State v. Johnson, 8 Towa, 525, 74 Am. Dec. 321, 1859. State v. Jones, 20 Mo. 58, 1854. As to California, see People v. Wallace, 9 Cal. 30, 1857; People v. Stevenson, 9 Cal. 273, 1857; People v. Dolan, 9 Cal. 576, 1857; People v. Murray, 10 Cal. 309, 1858; People v. Urias, 12 Cal. 325, 1859. In Connecticut under the Revised Statutes, providing that the “degree of the crime shall be alleged,” it is sufficient, after stating the crime in the usual common-law form, to add that the defendant did thereby com- mit murder in the first degree. Smith v. State, 50 Conn. 193, 1883. And see also State v. Hamlin, 47 Conn. 95, 36 Am. Rep. 54, 1878. As to Florida, see Bird v. State, 18 Fla. 493, 1882. In Indiana, murder in first degree must be averred to have been done “purposely.” Snyder v. State, 59 Ind. 105, 1878. See Powers v. State, 87 Ind. 144, 1882. As to Iowa, rejecting the views of the text, see State v. McCormick, 27 Iowa, 402, 1868; State v. Wat- kins, 27 Iowa, 415, 1868. As to Kansas, see State v. Fooks, 29 Kan, 425, 1883; State v. Brown, 21 Kan. 38, 1879. In Missouri, however, it is held necessary to specify the murder to have been wilful and deliberate, and to state the circumstances making it such. Bower v. State, 5 Mo. 364, 32 Am. Dec. 325, 1838; State v. Jones, 20 Mo. 58, 1854. But see State v. Kilgore, 70 Mo. 546, 1879. As to Montana, see Territory v. McAndrews, 3 Mont. 158, 1878. Information for murder cannot omit or misdescribe any fact essen- tial at common law. Chapman v. People, 39 Mich. 357, 1878; State v. Green, 111 Mo. 585, 20 S. W. 304, 1892. “Willingly” used instead of ‘“wil- fully” in an indictment for murder does not render it invalid. Daniels v. State, 76 Ark. 84, 88 S. W. 844, 1905. 2Com. v. Flanagan, 7 Watis & S. 415, 1844. CRIMINAL LAW. [§ 519 710 correct. The object of the statutes in Pennsylvania, and in the states that adopted the same legislation, was to provide that when a defendant’s mind is not capable of a specific design to take life, then he is not to be capitally punished.* In subse- quent Pennsylvania statutes, it was provided that when the de- fendant’s mind is disturbed to the further extent of being ac- tually insane, then the jury is to acquit of the felony, but find the insanity, upon which the defendant is to be imprisoned as a dangerous lunatic. Analogous statutes have been adopted throughout the United States. Now it is no more reasonable to require “a specific intention to take life” to be specially averred to meet the first class of statutes, than it is to require “sanity” to be specially averred to meet the second class of statutes. The legal scope of murder, as a generic term, is un- changed by either of the statutes. All that the statutes say is that when the jury find that the murder was committed in cer- tain conditions of mind, then the punishment shall not be death, but imprisonment. We cannot reject this reasoning without holding that in all cases where a jury are, by statute or other- wise, authorized to find a diminished responsibility, the indict- ment must specially negative the facts implying such dimin- ished responsibility. But this is absurd; and we must, there- fore, fall back on the position established above, that an indict- ment for murder at common law is sufficient in cases of murder in the first degree. Hence, also, under an indictment in the common-law form the prosecution may put in evidence killing by poison, or killing with the intent to commit arson, rape, robbery, or burglary,® or killing by lying in wait.® By the same reasoning, it has been held in Pennsylvania not necessary to aver “against the statute” in the conclusion, the 8See supra, § 502; and particu- larly 1 Wharton & S. Med. Jur. §§ 181, 214, 227. 4This has been even held when the statute makes a “sound mind” a constituent of murder. Fahne- stock v. State, 23 Ind. 231, 1864. See Dumas v. State, 63 Ga. 600, 1879. 5 Roach v. State, 8 Tex. App. 478, 880. As to indictment in New York, see Cox v. People, 80 N. Y. 500, 1880. As to indictment in Texas, sec Mendez v. State, 29 Tex. App. 608, 16 S. W. 766, 1891. 6State v. Kilgore, 70 Mo. 546, 1879, § 520] HOMICIDE. 711 offense being at common law, and only the punishment statu- tory.” § 520. Verdict should specify the degree. Under an in- dictment for murder at common law, there may be, as has just been incidentally noticed, a conviction of either murder in the first or of murder in the second degree, as well as a conviction of manslaughter.’ 7White v. Com. 6 Binn. 179, 6 Am. Dec. 448, 1813. In summing up the adjudications on this point, we may say that in Massachusetts, New York, Virginia, Indiana, Wisconsin, Arkansas, ‘!'ox- as, Nevada, Minnesota, California, and Washington Territory, as well as in Pennsylvania, Maine, and New Hampshire, which have been specially cited above, an indictment for mur- der at common law will sustain a verdict of murder in the first degree. In Connecticut, as we have seen, a statute was passed in 1870 de- claring that in all indictments of murder the degree shall be charged. State v. Hamlin, 47 Conn. 95, 36 Am. Rep. 54, 1878. This, however, does not touch in- dictments found prior to its pas- sage, in which it is not necessary to allege the degree. State v. Smith, 38 Conn. 397, 1871. In Iowa, it has been held by the supreme court error to put the de- fendant on trial for murder in the first degree, on an indictment char- ging murder in the second degree, though the conviction was only for murder in the second degree. See State v. MeNally, 32 Iowa, 581, 1868; State v. McCormick, 27 Iowa, 402, 1871. In Kansas, the indictment to con- stitute murder in the first degree must charge that the assault and the killing were with the deliberate and premeditated intention of kill- ing the deceased. State v. Brown, 21 Kan. 38, 1879. In Maine, under the act of 1865, chap. 339, it is necessary only to charge that the defendant “felo- niously, wilfully, and with his malice aforethought,” did kill the deceased. State v. Verrill, 54 Me. 408, 1866. Hence, under such an indictment, if there As to Missouri, sce State v. Phil- lips, 24 Mo. 475, 1857. As to New Hampshire, see State v. Pike, 49 N. H. 399, 6 Am. Rep. 533, 1869. 1[Ark.] Lancaster v. State, 71 Ark. 100, 71 S. W. 251, 1902. [Colo.] Mahany v. People, 31 Colo. 365, 73 Pac. 26, 1903. [Fla.] Reyes v. State, 49 Fla. 17, 38 So. 257, 1905. [Ind.] Kennedy v. State, 6 Ind. 485, 1855. [Kan.] State v. O’Shea, 59 Kan. 593, 538 Pac. 876, 1898; State v. Heth, 60 Kan. 560, 57 Pac. 108, 1899. [Md.] Davis v. State, 39 Md. 355, 1874. [Mass.] Com. v. Herty, 109 Mass. 348, 1872. [Mich.] People v. Clark, 155 Mich. 647, 119 N. W. 1094, 1909. [Mo.] State v. Upton, 20 Mo. 397, 1855; State v. Ostrander, 380 Mo. 13, 1860. [Neb.] Russell v. State, 66 Neb. 497, 92 N. W. 751, 1902. [N. Y.] Keefe v. People, 40 N. Y. 348, 1868. [N. C.] State v. Truesdale, 125 N. C. 696, 34 S. E. 646, 1899; State v. Jefferson, 125 N. C. 712, 34 S. E. 648, 1899. [Or.] State v. Grant, 7 Or. 414, 1879. [S. D.] State v. Hubbard, 20 S. D. 148, 104 N. W. 1120, 1905. [Tenn.] Waddle v. State, 112 Tenn. 556, 82 S. W. 827, 1904. [Tex.] McCloud v. State, 37 Tex. Crim. Rep. 237, 39 S. W. 104, 1897; Harbolt v. State, 37 Tex. Crim. Rep. 639, 40 S. W. 998, 1897; Brooks v. State, 42 Tex. Crim. Rep. 347, 60 S. W. 53, 1900; Thomas v. State, 43 Tex. Crim. Rep. 20, 96 Am. St. Rep. 834, 62 S. W. 919, 1901. Lyles v. State, 48 Tex. Crim. Rep. 119, 86 S. W. 763, 1905. [W. Va.] State v. Hager, 50 W. Va. 370, 40 S. E. 393, 1901; State v. May, 62 W. Va. 129, 57 S. E. 366. 1907. Compare: State v. Brock, 83 Kan. 167, 58 Pac. 972, 1899; State v. CRIMINAL LAW. [§ 520 712 be a conviction for manslaughter, or of murder in the second degree, the more correct course is to find “not guilty of murder, but guilty of manslaughter,” or “of murder in the second de- gree.” ® In Maryland this has been held essential. But such a degree of particularity is inconsistent with the practice which has been generally sustained. And, in any view, an acquittal or conviction of the minor degree on an indictment good for the major is an acquittal of the major.® And defendants, whether joint principals, specify the degree.® Marshall, 9 Kan. App. 59, 57 Pac. 260, 1899. In prosecution for assault to com- mit murder, verdict need not state the degree of the murder sought to be committed. Edwards v. State, 54 Fla. 40, 45 So. 21, 1907. Indictment charging murder with- out specifying degree; verdict find- ing accused guilty “as charged in the indictment” and fixing his pun- ishment at death is sufficient. State v. Hayes, 23 8. D. 597, 127 N. W. 652, 1909. Indictment charging murder in the first degree, the accused could be found guilty of no other offense un- der the evidence, a verdict of “guilty of the crime as charged in the in- dictment” held to be a verdict of murder in the first degree. State v. Pepoon, 62 Wash. 635, 114 Pac. 449, 1911. Indictment for murder in the first degree; verdict returned finding de- fendant “guilty as charged” suffi- ciently finds the degree. See [Fed.] Craemer v. Washington, 168 U. S. 124; 42 L. ed. 407, 18 Sup. Ct. Rep. 1, 1897. [Ark.] Hembree v. State, — Ark. —, 58 S. W. 350, 1900. [Ind.] Doolittle v. State, 93 Ind. 272, 1884. [Va.] Horton v. Com. 99 Va. 848, 38 S. E. 184, 1901. Verdict of murder in second de- gree in response to indictment for murder in first degre is valid. Doo- little v. State, 93 Ind. 272, 1884; State v. Ostrander, 30 Mo. 13, 1860. Verdict of murder in second de- gree “as charged in the indictment” in response to indictment charging murder without specifying the de- gree is valid. Padron v. State, 41 But the verdict must Tex. Crim. Rep. 548, 55 8. W. 827, 1900. Compare: People v. Clark, 155 Mich. 647, 119 N. W. 1094, 1909. Verdict of “guilty as charged in the indictment” under a prosecution is assault with intent to kill, where court submitted separate forms of verdict appropriate to a verdict of guilty on each of the offenses in- cluded in the act, and naming them in the form; the verdict was held suflicient. State v. Yates, 132 Iowa, 475, 109 N. W. 1005, 1906. Prosecution announcing did not in- sist on conviction of higher offense than that of shooting at another, under an indictment for assault with intent to kill, and court so instruct- ed jury; verdict returned finding the defendant “guilty and recommended mercy,” held sufficient. Johnson v. State, 121 Ga. 148, 48 S. E. 951, 1904. 2See infra, § 674. 8 State v. Flannigan, 6 Md. 167; 1854; Weighorst v. State, 7 Md. 442, 1855. See infra, § 674. 4 Wharton, Crim. Pl. & Pr. §§ 736 et seq. 5 See authorities given more fully, infra, 674; Wharton, Crim. Pl. & Pr. §§ 465, 742. Verdict of guilty of murder in the second degree “is equivalent to an express acquittal of the defendant for murder in the first degree, and the defendant could successfully plead the proceedings in this case in bar of any subsequent prosecution against him for the same offense.” McMillan, C. J., State v. Lessing, 16 Minn. 80, Gil. 64, 1870, 6 Infra, § 676. § 521} HOMICIDE, 713 or principals and accessories, may be convicted of different degrees.” VII. Rrorovs Homicipzs. § 521. War levied against government for private pur- poses, and killing follows, indictment should be for homi- cide. When an unlawful assemblage takes place for the re- dress of a supposed public wrong, and particularly where its object is the overturn of government, or the resistance of execu- tive, legislative, or judicial authority as such, participation in it, to the extent of levying war against the government for these public purposes, becomes treason. Where, however, the inten- tion is to redress a private or social grievance, and to incidental- ly resist process merely so far as may be necessary to effect the private or social end, the offense amounts not to the dignity of treason, and if during its commission life is lost, the offender may be tried for homicide. Two observations, however, may properly be made in this connection: (1) Even supposing trea- son exists, the felony of murder or manslaughter does not merge in it. Merger only exists where a misdemeanor and a felony form a constituent part of the same act, as where an attempt to commit a larceny and the larceny itself unite. In such cases it is the felony alone that can be prosecuted. But two felonies cannot thus coalesce, for being each of equal grade neither sinks into the other. (2) The domains of treason have become restricted within limits which exclude the great mass of those cases of general riot, which were formerly in- cluded within the term. It has already been noticed that dur- ing the necessities of civil war in England, each government for the time in power, acting on the principle that self-preserva- tion is the duty of all governments, followed its predecessors in pushing the law of treason to its extremest verge, both as re- gards principle and temper. But in more recent days, when the Crown no longer feels it to be a contest for life between it and the state prisoner at the bar, the old policy has been relaxed, and “levying war,” in the definition of treason, is shorn of the constructive element, and restricted, as the term suggests, to 7 Supra, § 276. 714 CRIMINAL LAW. [§ 521 the actual making of war against the state. The same ameliora- tion of judicial construction has taken place, also, in our own country. In the earlier treason cases in Pennsylvania, those of Roberts and Carlisle, which were tried in revolutionary times, the early English precedents were cited with approbation and applied with rigor. In Fries’s trial, which took place dur- ing the administration of John Adams, when the government was scarcely settled, the same general views were expressed which obtained in England during the civil wars, and a local opposition to the execution of the window tax was construed to be a “levying war” against the government of the United States. But in Hanway’s Case, the circuit court of the United States, sitting in Philadelphia in 1851, after noticing the fact that the better opinion in England now is that the term “levying war’’ should be confined to insurrections and rebellions for the purpose of “overturning the government by force and arms,” went on to say that a combination on the part of certain citi- zens, in a particular neighborhood, to aid fugitive slaves in resisting their capture, even though such resistance results in murder and robbery, is not treason.! § 522. Co-rioter principal in riotous killing. Individuals who, though not specifically parties to the killing, are present and consenting to the assemblage by whom it is perpetrated, are principals when killing is in pursuance of common design. “When divers persons,” says Hawkins, “resolve generally to resist all opposers in the commission of a breach of the peace, and to execute it in such a manner as naturally tends to raise tumults and affrays, and in so doing happen to kill a man, they are all guilty of murder, for they must at their peril abide the event of their actions who unlawfully engage in such bold dis- turbances of the public peace, in opposition to, and defiance of, the justice of the nation.’ And the principle applies also to 1 United States v. Hanway, 2 Wall. P. C. 439 et seq.; 4 BI. Com. 200; 1 Jr. 139, Fed. Cas. No. 15,299, 1851. East, P. C. chap. 55, § 33, p. 257; For a full discussion of the ques- tion as to existence of a state of war and what constitutes such state, see People v. McLeod, 1 Hill, 377, 25 Wend. 483, 37 Am. Dec. 328, and the learned note 363-366, 1841. 1Supra, § 251; 1 Hawk. P. C. chap. 13, § 51; Staundf. 17; 1 Hale, [Eng.] Reg. v. Archer, 1 Fost. & F. 351, 1858; Reg. v. McNaughten, 14 Cox, C. C. 576, 1881. [Fed.] United States v. Ross, 1 Gall. 624, Fed. Cas. No. 16,196, 1814, [Cal.] People v. Brown, 59 Cal. 345, 1881. [Ga.] Washington v. State, 36 Ga. 222, 1861; Green v. State, 109 Ga. 536, § 524] HOMICIDE. 715 all those cases in which there is an unlawful assembly not amounting to riot.” § 523. —But not in collateral crimes. It should be ob- served, however, that while the parties are responsible for con- sequent acts growing out of the general design, they are not for independent acts growing out of the particular malice of indi- viduals. Thus if one of the party, on his own hook, turn aside to commit a felony foreign to the original design, his compan- ions do not participate in his guilt.’ It must be remembered that to make out the corpus delicti in such cases it is essential to show that the party charged struck, either actually or con- structively, the fatal blow, and consented to the common de- sign. Thus it has been correctly held in England that when two or more, one of whom has received a provocation (as a blow) which would reduce homicide to manslaughter, are all charged with murder, and it cannot be proved which of them inflicted the fatal blow, neither of them can be convicted of murder, without a proof of a common design to inflict the homicidal act; nor of manslaughter, without proof of a common design to inflict unlawful violence.” § 524. —Presence without intent to kill involves man- slaughter. Where a sudden popular movement is got up for the purpose of redressing some supposed grievance, the temper of those concerned is aroused by the outrage they believe them- selves to have suffered, and in this view a homicide committed by one of the parties so affected would be but manslaughter. We must, however, remember that the common law treats at least as manslaughter all killing when in performance of an un- lawful act, and the “unlawful act” in this case is the riotous assemblage, in which all voluntary participants, passive or ac- 35 S. E. 97, 1900; Baptist v. State, 1Supra, §§ 252-258. Reg. v. Skeet, 109 Ga. 546, 35 S. E. 658, 1900. [Ill] 4 Fost. & F. 931, 1866; Rex v. Haw- Brennan v. People, 15 Ill. 511, 1853; kins, 3 Car. & P. 392, 1828; Rex v. Lamb v. People, 96 Ill. 73, 1880. Collison, 4 Car. & P. 565, 1831; Rex [N. Y.] Ruloff v. People, 45 N. Y. v. Warner, 5 Car. & P. 525, 1 Moody, 213, 1870. .[N. C.] State v. Sim- C. C. 380, 1833; Reg. v. Price, 8 mons, 51 N. C. (6 Jones, L.) 21, Cox, C. C. 96, 1858; United States v. 1858. [Ohio] Huling v. State, 17 Gilbert, 2 Sumn. 19, Fed. Cas. No. Ohio St. 583, 1867. 15,204, 1837. 2Reg. v. McNaughten, 14 Cox, C. #Reg. v. Turner, 4 Fost, & F. 339, C. 576, 1881. 1864. CRIMINAL LAW. [§ 524 716 tive, are responsible.’ It should be added that a rioter is not responsible for an accidental homicide caused by an officer en- gaged in suppressing the riot;* nor for a death caused by a stranger independently interfering for his own ends.°. § 525. Killing by lynch law is murder in the first degree. When the object is to inflict capital punishment by what is called lynch law, all who consent to the design are responsible for the overt act.1 Under the statute above analyzed, this is murder in the first degree when not executed in hot blood. Of all species of homicide it is among those that most strikingly combine the two distinctive features of that type—namely, de- liberation and a specific intent to take life. § 526. If there is cooling time, offense may be murder. Even though the original assailants in a riotous homicide are guilty of murder, a person who, in hot blood, rushes in to aid them, is responsible only for manslaughter for a killing which takes place after he joins them.’ Whether a particular party in such a homicide is guilty of murder, supposing hot blood to have been proved, depends upon whether there has been cooling time.? A person who is secure from further personal ageres- sions has no right to return armed to the scene of conflict, and voluntarily engage in a new conflict with the aggressor. If he do, and slay his assailant, the offense will be murder or man- slaughter, according to the particular circumstances.2 Where the whole proceeding is infected with a continuous public ex- citement, and where the return to the conflict is so immediate and so associated in sentiment as to form part of the same transaction with the original assault, the law applies the origi- nal provocation to the fatal blow. What interval of time is 3 Rex v. Murphy, 6 Car. & P. 103, 1See supra, §§ 251 et seq. [Eng.] 1833. See supra, §§ 252, 258. Rex v. Murphy, 6 Car. & P. 103, 1833; Rex v. Collison, 4 Car. & P. 565, 1831; Reg. v. Jackson, 7 Cox, C. C. 357, 1857; Reg. v. Skeet, 4 Fost. & F. 931, 1866, (iJ Brennan y. Peo- ple, 15 Tl. 511, 1853. [Ind.] Sloan v. State, 9 Ind. 565, 1857. [Mich.] Patten v. People, 18 Mich. 314, 100 Am. Dec. 173, 1869; People v. Knapp, 26 Mich. 112, 1872. [S. C.] State v. Jenkins, 14 Rich. L. 215, 94 Am. Dec. 132, 1867. 2Com. v. Campbell, 7 Allen, 541, 83 Am. Dec. 705, 1863. 1State v. Wilson, 38 Conn. 126, 1871. Infra, §§ 589, 617. 1 Supra, §§ 149, 523. Thompson v. State, 25 Ala. 41, 1854; Frank v. State, 27 Ala. 38, 1855. 2 See infra, §§ 582 ‘et seq., where this point is discussed in its general relations. 3 Infra, §§ 606-610, and see supra, § 148. § 527] HOMICIDE. 717 necessary to exclude the hypothesis of continuousness is, of course, dependent upon the circumstances of the case and the temperament of the individuals. But a good test is the inter- position of other subject-matters in the mind, and its inter- mediate voluntary adoption of other topics. Thus it has been ruled that if, between the provocation received and the mortal blow given, the prisoner fall into other discourse or diversion, giving a reasonable time for cooling; or if he take up and pur- sue any other business or design not connected with the immedi- ate object of his passion, nor subservient thereto, so that it may be reasonably supposed that his attention was called off from the subject of the provocation,—any subsequent killing of his adversary, especially where a deadly weapon is used, is murder.* It is obvious, therefore, that no measurement of time can be adopted in this respect. In periods of great public excitement, when men’s minds have been so absorbed with a particular topic as to be incapable of considering anything else, a much greater period is required to cool after a supposed provocation than un- der ordinary circumstances. Care, however, should be taken in this as well as in all similar cases, lest the public excitement be used as a cloak for private cupidity or revenge.® § 527. Private person may kill in suppression of riot. The law, as we will hereafter observe,’ is that private citizens may, of their own authority, lawfully endeavor to suppress a riot, and for that purpose may even arm themselves, and that whatever is honestly done by them in the execution of that object will be supported and justified by the common law.? (Pa.) 4Com. v. Green, 1 Ashm. called upon for public service has 289, 1826. 5 See infra, §§ 604-606. lInfra, §§ 531-553. 2Infra, § 531; State v. Roane, 13 N.C. (2 Dev. L.) 58, 1828. Infra, §§ 531, 532. Militia called to suppress disorder, acting under order of an officer and without malice in performance of their duty, member thereof is not re- sponsible for a homicide committed unless he acts beyond the scope of his authority. Com. ex rel. Wads- worth v. Shortall, 206 Pa. 165, 65 L.R.A. 193, 98 Am. St. Rep. 759, 55 Atl. 952, 1903. In times of peace a militiaman such rights only as a peace officer. Manley v. State, — Tex. Crim. Rep. —, 187 S. W. 1137, 1911. As to martial law other than in times of actual war, see notes in 98 Am. St. Rep. 772-776 and 65 L.R.A. 193-207. As to martial law generally see note in 92 Am. Dec. 180. Rule requiring person to decline combat in good faith, where by so doing he can put himself out of dan- ger, does not apply to a public of- ficer who is resisted in an endeavor to preserve the peace. Lynn v. Peo- ple, 170 Ill. 527, 48 N. E. 964, 1897. 718 CRIMINAL LAW. [§ 528 VIII. Homiciwe sy OFFricrer oF JUSTICE. § 528. Killing in obedience to warrant, justifiable. Homicide committed by the sheriff in execution of a warrant to that effect is of course justifiable, entitling him to an acquit- tal.! It is important to observe, however, that the judgment and sentence must be strictly followed, since if death is inflicted otherwise than directed, the officer will be guilty of manslaugh- ter at least, if not of murder.? If the judgment be hanging, and the officer behead the party, this is said to be murder; # and if there be no jurisdiction in the court by whom the warrant is issued, the offense is murder, even though the officers charged honestly believed in the validity of the warrant, though it is otherwise when the warrant is irregular from some merely form- al defect.* A subaltern cannot defend himself by a warrant from an unauthorized superior.® § 529. —And so when necessary to effect an arrest. With the exceptions hereafter stated, officers of the law, when their authority to arrest or imprison is resisted, will be justified 1See supra, § 428, infra, § 639. State v. Blackburn, 7 Penn. (Del.) 479, 75 Atl. 536, 1892. 21 Hale, P. C. 501; 2 Id. 411; 3 Co. Inst. 52, 211; 4 Bl. Com. 179. See supra, §§ 124, 428; infra, § 639. 31 Hale, P. C. 433, 454, 466, 501; 2 Id. 411; 4 Bl. Com. 179. 4Homicide by officer—Want of jurisdiction of court and defective warrant.—Sir J. F. Stephen (Digest Crim Law, 5th ed. art. 218) gives the following illustrations of the rule in the text: “(1) A sits under a commission of jail delivery. The officer forgets to adjourn the court at the end of the first day’s sitting. This determines the commission. On the following day A sits again, sentences a felon to death, who is duly executed by B. Neither A nor B is guilty of murder or manslaughter, though the proceed- ings are irregular. Per Lord Hale, 1 Hale, P. C. 499. “(2) A, a lieutenant or other hav- ing commission of martial authority in time of peace, causes B to be hanged by C, by color of martial law. This is murder in both A and C. 3 Col. Inst. 52; 1 Hale, P. C. 499, 500. The whole subject of martial law un- derwent full discussion in connection with the execution of Mr. Gordon by a court martial in Jamaica, in 1865. An elaborate history of the case has been published by Mr. Finlason, and the charge to the grand jury, de- livered at the central criminal court by the Lord Chief Justice of Eng- land, has been published in a sepa- rate form. I know not whether the charge to the grand jury of Middle- sex, delivered by Lord (then Mr. Jus- tice) Blackburn, has been published or not. Much information on the subject will be found in Forsyth’s Cases and Opinions on Constitutional Law, pp. 484-563. Mr. Forsyth prints, inter alia, an opinion given by the late Mr. Edward James, Q. C., and myself, in 1866; see pp. 551-563; and see Phillips v. Eyre, L. R. 6 Q. B. 11, 40 L. J. Q. B. N.S. 28, 1870.” Infra, § 538. For C. J. Cockburn’s charge, see supra, § 8. 5 Supra, §§ 124, 433. United States v. Carr, 1 Woods, 480, Fed. Cas. No. 14,732, 1871. § 529] HOMICIDE, 719 in opposing force to force, even if death should be the conse- quence ;* yet they ought not to come to extremities upon every slight interruption, without a reasonable necessity.” If they should kill where no resistance is made, it will be murder; and the same rule will exist if they should kill a party after the resistance is over and the necessity has ceased, provided that sufficient time has elapsed for the blood to have cooled.’ The cases under this head may be classed as follows: 1. Civil. 2. Criminal. 1Compare infra, § 538. [Eng.] Reg. v. Dadson, 2 Den. C. C. 35, Tem- ple & M. 385, 3 Car. & K. 148, 20 L. J. Mag. Cas. N. S. 57, 14 Jur. 1051, 4 Cox, C. C. 360, 1850. [Fed.] United States v. Rice, 1 Hughes, 560, Fed. Cas. No. 16,153, 1875. [Ala.] Clem- ents v. State, 50 Ala. 117, 1873. [Ind.] Plummer v. State, 135 Ind. 308, 84 N. E. 968, 1893. [Kan.] State v. Horne, 9 Kan. 119, 1872. [Ky.] Lindle v. Com. 111 Ky. 866, 64 S. W. 986, 1901. [N. C.] State v. Garrett, 60 N. C. (1 Winst. L.) 144, 84 Am. Dec. 359, 1864. [Ohio] Wolf v. State, 19 Ohio St. 248, 1869. [Pa.] Com. v. Long, 17 Pa. Super. Ct. 641, 1901. [S. C.] State v. An- derson, 1 Hill, L. 327, 1833. As to killing to prevent escape in case of felony, see note in 61 Am. Dec. 163. See on this point § 204 of N. Y. Penal Code of 1882. As to unnecessary violence not to be used in making an arrest, see note in 61 Am. Dec. 161. As to killing in seeking to effect arrest of one fleeing from felony, see note in 61 Am. Dec. 162. As to killing where resistance is offered in felony, see note in 61 Am. Dec. 163. Evidence to show deceased not guilty of the charge contained in the warrant is not admissible. Roten v. State, 31 Fla. 514, 12 So. 910, 1893. Fugitive escaping; whom officers are seeking, may not be killed to prevent such escape. Roe v. State, 55 Tex. Crim. Rep. 128, 115 S. W. 593, 1909. Killing actual felon in trying to arrest without knowing or believing him guilty is murder, especially where the person seeking to make the arrest is not an officer. People v. Burt, 51 Mich, 199, 16 N. W. 378, 1883. Officer resisted in making lawful arrest may not kill the accused to guard himself from personal bodily harm, unless it is absolutely neces- sary and the injury threatened is a serious one. State v. Hickey, 70 N. J. L. 628, 57 Atl. 264, 1904. Posse comitatus to assist in arrest- ing a dangerous and desperate man indicted in a Federal court for re- sisting its officers, who had declared he would not be taken alive to the knowledge of the members of the posse, are not liable for the homi- cide of the accused, where it occurs in the lawful discharge of their duty as members of such posse. [Fed.] West Virginia v. Laing, 66 C. C. A. 617, 133 Fed. 887, 1904. [Ga.] Dover v. State, 109 Ga. 485, 34 8. E. 1030, 13 Am. Crim. Rep. 330, 1900. [Ky.] See Lindle v. Com. 111 Ky. 866, 64 S. W. 986, 1901. [Miss.] Tolbert v. State, 71 Miss. 179, 42 Am. St. Rep. 454, 14 So. 462, 1893. —Citizens called upon by peace of- ficers to assist in the arrest of an accused may use sufficient force to effect the arrest, even though it goes to the extent of taking life. People v. Brooks, 131 Cal. 311, 63 Pac. 464, 1901. Shooting accused in seeking to make arrest because he refused to obey order to take his hand from his pocket is manslaughter or murder according to the circumstances of the For notes 2 and 3, see page 720. 720 CRIMINAL LAW. [g 530 1. Cwil. § 530. Officer intentionally killing a person flying from civil arrest, chargeable with murder. In civil suits, if the party against whom the process has issued fly from the officer endeavoring to arrest him, or if he fly after an arrest actually made, or out of custody in execution for debt, and the officer, not being able to overtake him, make use of any deadly weapon, and by so doing, or by other means, intentionally kill him in the pursuit, it has been said that this will amount to murder.’ But this is an extreme case, for the same authorities inform us that if the officer, in the heat of the pursuit, and merely in order to overtake the party, should trip up his heels, or give him a stroke with an ordinary cudgel, or other weapon not likely to kill, and death should unhappily ensue, this will not amount to more than manslaughter, if, in some cases, even to that of- fense; and if there be resistance, and an affray ensue, during which the party sought to be arrested is slain, the offense will] also be but manslaughter.? But if a party liable to a civil arrest put in jeopardy the lives of those seeking lawfully to ar- rest him, his homicide will be excusable.’ case. State v. Coleman, 186 Mo. 151, 60 L.R.A, 381, 84 S. W. 978, 1905. officers in good faith attempting to arrest an offender, armed with a Striker disobeying Federal injunc- tion, resisting with firearms an order of arrest for such disobedience, de- claring he would not be taken alive, and did not intend to be arrested, militia sent to his house to arrest him. On surrounding the house they saw accused run therefrom with re- volver in hand which he pointed toward some of the officers. here- upon they called to him to halt, but he failed to do so. Approaching a tree the officers thought he intended to use as a shelter to fire at them. ‘Whereupon they fired and killed the person sought to be arrested; it was held they were not guilty of abuse of process, but were justifiable in their actions. Re Laing, 127 Fed. 213, 1903. A similar principle applies to civil pistol, who has committed an unlaw- ful act manifesting an intention im- mediately to use the pistol on the officers. See Hammond v. State, 147 Ala. 79, 41 So. 761, 1906; People v. Matthews, — Cal. —, 58 Pac. 371, 1899. 21 East, P. C. 297; Smith v. State, 59 Ark. 132, 43 Am. St. Rep. 20, 26 S. W. 712, 1894. ‘ 31 Hale, P. C. 481; Fost. C. L. 291. 11 Hale, P. C. 481; Fost. C. L 291. Infra, § 543. As to killing in seeking to effect arrest in civil suit, see note in 61 Am. Dee. 162. 2Fost. C. L. 298, 294. See Do- herty v. State, 84 Wis. 152, 53 N. W. 1120, 1893. 8 State v. Anderson, 1 Hill, L. 327, 1833, § 531] HOMICIDE. 721 2. Criminal. § 531. —And so in pursuit of criminal charged with misdemeanor. Unless it be in cases of riots, it is not lawful for an officer to kill a party accused of misdemeanor, if he fly from the arrest, though he cannot otherwise be overtaken. Un- der such circumstances (the deceased only being charged with a misdemeanor), killing him intentionally is murder ;* but the offense will amount only to manslaughter if it appear that death was not intended.” 1[Ala.] Handley v. State, 96 Ala. 48, 38 Am. St. Rep. 81, 11 So. 322, 1892. [Ark.] Thomas v: Kinkead, 55 Ark. 502, 15 L.R.A. 558, 29 Am. St. Rep. 68, 11 S. W. 854, 1892. [Del.] State v. O’Niel, 1 Houst. Crim. Rep. (Del.) 468, 1867, cited supra, § 441. [Iowa] State v. Smith, — Iowa, —, 70 L.R.A, 246, 101 N. W. 110, 1904; State v. Smith, 127 Iowa, 534, 70 L.R.A. 246, 109 Am. St. Rep. 402, 103 N. W. 944, 4 A. & E. Ann. Cas. 758, 1905. [Kan.] State v. Dietz, 59 Kan. 576, 53 Pac. 870, 1898. [Ky.] Head v. Martin, 7 Ky. L. Rep. 361, 1885. [S. C.] State v. Whittle, 59 S. C. 297, 37 S. E. 928, 1901. [Tex.] Hardin v. State, 40 Tex. Crim. Rep. 208, 49 S. W. 607, 1899. As to killing in seeking to effect arrest of one fleeing from misde- meanor, see note in 61 Am. Dec. 162. As to killing where resistance is offered in misdemeanor, see note in 61 Am. Dec. 163. As to killing to prevent escape in case of misdemeanor, see note in 61 Am Dec. 164. See also Thomas v. Kinkead, 55 Ark. 502, 15 L.R.A. 558, 29 Am. St. Rep. 68, 11 S. W. 854, 1892. Assault and battery charge officer with warrant is not justified in kill- ing person charged while he flees from arrest; and the fact that he was informed the accused was of a desperate character will not change the situation legally. Com. v. Rhoads, 23 Pa. Super. Ct. 512, 1903. Breach of the peace being charged, the force peace officers may use in making an arrest does not extend to the taking of human life. Stephens Crim, L. Vok I.—46. v. Com. 20 Ky. L. Rep. 544, 47 8. W. 229, 1898. In misdemeanor, if the arrest is resisted, officer seeking to make an arrest may use such force as is neces- sary, or reasonably appears to the officer necessary in the exercise of sound judgment, but he may not wantonly shoot or injure the person sought to be apprehended when there is no forcible resistance. Com. v. Marcum, 135 Ky. 1, 24 L.R.A.(NS.) 1194, 122 S. W. 215, 1909. One arrested for misdemeanor at- tempting to escape officer, latter has no right to kill him to prevent such escape. Private citizen has no right to shoot a misdemeanant who has com- mitted petty larceny and is running away to avoid arrest or recapture. State v. Stancill, 128 N. C. 606, 38 S. E. 926, 13 Am. Crim. Rep. 39, 1901. 21 East, P. ©. 302. [Eng.] Smith’s Case, 4 Bl. Com. 201, note. [Del.] State v. Oliver, 2 Houst. (Del.) 585, 1855. [Ky.] Bowman v. Com. 96 Ky. 8, 27 S. W. 870, 1894. See infra, § 556. In the case of Skidmore v. State, 2 Tex. App. 20, 1877, a policeman was conducting a prisoner to the cali- boose when the latter refused to go farther and tried to escape, where- upon the policeman struck him over the head with his six-shooter pistol. In the absence of any evidence to show that the prisoner was assault- ing the policeman, and that other persons were within call, whose aid was not sought by the policeman, it was held that the policeman was not CRIMINAL LAW. [§ 531 722 Where resistance is made, yet if the officer kill the party after the resistance is over, and the necessity has ceased, the crime will at least be manslaughter.2 And it is manslaughter for an officer to kill a prisoner in prevention of an escape when the escape could be prevented by less violent means.* § 532. —Otherwise in respect to felonies. An honest and non-negligent belief that a felony is about to be perpetrated will extenuate, so it has been declared, a homicide committed in prevention of it, though the person interposing be but a pri- vate citizen,’ but not a homicide committed in pursuit, unless special authority be given, or the pursuit be conducted accord- ing to law.? So far as concerns officers armed with a warrant, where a felony has been committed, or a dangerous wound given, and the party flies from justice, he may be killed in the pursuit if he cannot otherwise be overtaken. But the slayer in such cases, especially if he be a mere pursuer, must not only show that he had adequate grounds to believe that a felony was actually committed, but that he avowed his object, and that the felon refused to submit, and that the killing was necessary to make the arrest.2 Such is the old law; but in states where the distinction between felonies and misdemeanors is done away with, the cases resting on this distinction are no longer authori- tative. The reasonable rule is that where a man flies from ar- rest, the charge being a mere trespass or an offense equivalent to a trespass, to kill him in prevention of an escape is at least manslaughter. It is otherwise, supposing the arrest be duly au- Rep. 438, 1884. Selfridge’s Trial, 160. [N. C.] State v. Rutherford, 8 N. C. (1 Hawks) 457, 9 Am. Dee. 658, 1822. 8 [Fed.] United States v. Travers, justified in striking the blow, and a conviction for aggravating assault was affirmed. 31 East, P. C. 525. See Clements v. State, 50 Ala. 117, 1873. 4Reneau v. State, 2 Lea, 720, 31 Am. Rep. 626, 2 Am. Crim. Rep. 624, 1878. lInfra, §§ 553-556, 567, 619, 670; 1 East, P. C. 259; Oliver v. State, 17 Ala. 587, 1849; Dill v. State, 25 Ala. 15, 1854; Pond v. People, 8 Mich. 150, 1860. See Wharton, Crim. Pl. & Pr. § 8. 2 (Eng.] Rex v. Howarth, 1 Moody, C. C. 207, 1828; Rex v. Williams, 1 Moody, C. C. 387, 1833. [Ark.] Carr v. State, 43 Ark. 99, 5 Am. Crim. 1 Brunner, Col. Cas. 467, 2 Wheeler Crim. Cas. 510, Fed. Cas. No. 16,537, 1823. [Cal.] People v. Adams, 85 Cal. 231, 24 Pac. 629, 1890. [Mich.] People v. Burt, 51 Mich. 199, 16 N. W. 378, 1882. [N. C.] State v. Roane, 13 N. C. (2 Dev. L. )58, 1828. [Tenn.] Reneau v. State, 2 Lea, 720, 31 Am. Rep. 626, 2 Am. Crim. Rep. 624, 1879. _See Wharton, Crim. Pl. & Pr. §§ 8, 9, 18. § 534] HOMICIDE. 123 thorized and notice duly given, where the offense is of high grade, assailing life or public safety. § 533. Killing by officer justifiable in preventing of escape in felonies. When a felony, or offense of high grade in states where the distinction as to felonies is abolished, has been committed and the offender is in duress, the officer is bound to make every exertion to prevent an escape; and if in the pur- suit the felon be killed, where he cannot be otherwise overtaken, the homicide is justifiable.’ This rule is not confined to those who are present, so as to have ocular proof of the fact, or to those who first come to the knowledge of it; for if, in these cases, fresh pursuit be made, and a fortiori if hue and cry be levied, all who join in aid of those who began the pursuit are under the same protection of the law. The same rule holds if a felon, after arrest, break away as he is carried to jail, and his pursuers cannot retake without killing him. But if he may be taken, in any case, without such severity, it is at least man- slaughter in him who kills him; and the jury ought to inquire whether it were done of necessity or not.? § 534. Killing justifiable when necessary to preserve peace. As has been already observed, if officers of the law, when engaged in the preservation of the peace, find it necessary to take life, such homicide is-justifiable. The rule is not con- fined to the instant the officer is on the spot, and at the scene of action, engaged in the business which brought him thither, for he is under the same protection, going to, remaining at, or returning from the same; and, therefore if he come to do his office, and meeting great opposition, retire, and in the retreat is killed, this will amount to murder. He went in obedience to the law, and in the execution of his office, and his retreat was necessary to avoid the danger which threatened him. And upon the same principle, if he meet with opposition by the way, and is killed before he come to the place, such opposition being intended to prevent his doing his duty, which is a fact to be 1 Fost. OC. L. 321; Wharton, Crim. in 61 Am. Dec. 161, 162; 14 Am. Pl. & Pr. §§ 1-17. See People v. St. Rep. 542; and 43 Am. St. Rep. Kilvington, 104 Cal. 86, 43 Am. St. 79. Rep. 78, 37 Pac. 799, 1894. 2 Ibid. As to arrest of felons and fleeing As to escape, see infra, § 2003; felons, on warrant or on suspicion, supra, § 486. and homicide in such cases, see notes CRIMINAL LAW. [§ 534 724 collected from the circumstances appearing in evidence, this will amount to murder. He was strictly in the execution of his office, going to discharge the duty the law required of him. It follows from this that if such an officer successfully resists those who seek to obstruct and hinder him from proceeding to the lawful execution of his duty in such respect, he is justified, even should the lives of the assailants, their aiders and abettors, be taken, from the necessary extent of the resistance so made.’ § 535. Lawful arrest unlawfully executed imposes re- sponsibility. An arrest, not unlawful in itself, may be per- formed in a manner so criminal and improper, or by an au- thority so defective, as to make the party who, while performing it, in the prosecution of his purpose causes the death of another person, guilty of murder,’ though if the officer act without mal- ice, and the irregularity be trivial, the offense may be only manslaughter. In all cases, the officer should proceed with due caution; and although it is not necessary that the officer should retreat at all, yet he ought not to come to extremities upon every slight interruption, nor unless upon a reasonable necessity, in order to execute his duty.? § 536. Legal warrant necessary. An officer who makes an arrest out of his proper district, or without any warrant or authority, and purposely kills the party for not submitting to such illegal arrest, will, generally speaking, be guilty of murder in all cases where an indifferent person, acting in the like man- ner, without any such pretense, would be guilty to that extent.’ The offense is manslaughter if the arrest is bona fide and without malice.® § 537. Private persons interfering act at their risk. Private persons who, without warrant, undertake to bring felons lInfra, § 1871; Re Riots of 1844, per King, P. J. 2 Clark (Pa.) 275, 1844. See Wharton, Cr. Pl. & Pr. N. H. 492, 1872. [Tex.] Carter v. State, 30 Tex. App. 551, 28 Am. St. Rep. 944, 17 S. W. 1102, 1891. § 16. 1See supra, § 178. 21 East, P. C. 297; 1 Hale, P. C. 481, 488, 494; 2 Id. 84. [Eng.] Goffe’s Case, 1 Vent. 216. [Ark.] . Johnson v. State, 58 Ark. 57, 23 S. W. 7, 1893. [Conn.] State v. Hull, 34 Conn. 132, 1866. [Ky.] Cockrill v. Com. 95 Ky. 22, 23 S. W. 659, 1893. [N. H.] State v. Roberts, 52 Supra, § 178. 11 Hast, P. C. 312. Infra, § 559; Wharton, Crim. Pl. & Pr. §§ 1-17. 2 Reg. v. Carey, 14 Cox, C. OC. 214, 1879. See O’Connor v. State, 64 Ga. 125, 37 Am. Rep. 58, 1880; Georgia v. O'Grady, 3 Woods, 496, Fed. Cas. No. 5,352, 1878; State v. Port, 3 Fed. 124, 1879. § 540] HOMICIDE. 725 to justice, are indictable for manslaughter if they unnecessarily take life to prevent an escape;* and if they act even under ap- parent necessity, they are indictable for manslaughter if their behef that a felony was committed was in any way negligent.’ And if the object is to prevent the commission of a felony, the person so interfering is indictable for manslaughter, unless his action in killing was necessary to prevent enormous wrong.® § 538. —So as to military and naval officers. The dis- tinctions just announced apply to military and naval officers killing without authority. Unless there be such authority, killing by a military or naval officer is at least manslaughter.’ And a subaltern cannot defend himself, if he act maliciously, by his superior’s commands.? § 539. Officer when in danger of life may kill person charged with misdemeanor attempting to escape. Al- though an officer must not kill for an escape where the party is in custody for a misdemeanor, yet if the party assault the officer with such violence that he has reasonable ground for believing his life to be in peril, he may justify killing the party.1 The case is then one of homicide in self-defense. IX. Homicipr or Orricers or JustTIcE AND OruEers AIDING Tuem. § 540. Intentional killing of arresting officer is murder. When a party who having authority to arrest or imprison uses the proper means on a proper occasion for such a purpose, and in so doing is assaulted and killed, it will be murder in all Sumner in the second volume of Sumner’s Life, and notices in Thur- low Weed’s life. lInfra, § 628; supra, § 533. 2Infra, § 560. 3 Fost. C. L. 318. Infra, § 628. lInfra, § 558; Clode’s Military Law, 167. See R. v. Vaughan, 9 Best. & S. 829; Roscoe, Crim. Ev. 7th ed. 767; Warden v. Bailey, 4 Taunt. 77, 4 Maule & S. 400, 16 Re- vised Rep. 502, 1812; R. v. Thomas, 1 Russell, Crimes, 614, 9th Am. ed. 823. As to authority of military of- ficers, see supra, § 527, footnote 2. As to killing of Midshipman Spen- cer for mutiny, see letters by Mr. As to Eyre’s case (Phillips v. Eyre, L. R. 6 Q. B. 11, 40 L. J. Q. BL N.S. 28, 1870), see supra, § 528, note. 2Ibid. See United States v. Jones, 3 Wash. C. C. 209, Fed. Cas. No. 15,494, 1821; Com. v. Blodgett, 12 Met. 57, 1847. Supra, §§ 528 et seq. 1State v. Anderson, 1 Hill, L. 327, 1833. Infra, § 581; and see For- ster’s Case, 1 Lewin, C. C. 187, 1825; cited Bowlby’s Wharton, Homicide, § 495. 726 CRIMINAL LAW. [§ 540 concerned if the intent be to kill or inflict grievous bodily hurt.’ And it has been decided that if in any quarrel, sudden or pre- meditated, a justice of the peace, constable, or watchman, or even a private person, be slain in endeavoring to keep the peace and suppress the affray, he who kills him will be guilty of murder.? But to sustain a charge of murder it must appear that the person slain had given notice of the purpose for which he came, by officially commanding the parties to keep the peace, or by otherwise showing that it was not his intention to take part in the quarrel, but to appease it;* unless, indeed, he were an officer within his proper district, and known, or generally acknowledged, to bear the office he had assumed.* Thus if A, B, and C be in a tumult together, and D, the constable, come to appease the affray, and A, knowing him to be the constable, kill him, and B and C, not knowing him to be the constable, come in, and finding A and D struggling, assist and abet A in killing the constable, this is murder in A, but manslaughter in B and 05 § 541. —But manslaughter when arrest is illegal. If an innocent person be indicted for a felony, and an attempt be made to arrest him for it, without warrant, and he resist and kill the party attempting to arrest him; if the party attempting 1 Wharton, Homicide, § 225; Fost. C. L. 270, 271; 1 Hale, P. C. 494; 2 Hale, P. C. 117, 118. [Fed.] United States v. Travers, Brunner, Col. Cas. 467, 2 Wheeler, C. C. 490, Fed. Cas. No. 16,537, 1823. [Ark.] Evans v. State, 58 Ark. 47, 22 S. W. 1026, 1898. [Ga.] Phillips v. State, 66 Ga. 755, 1881; Croom v. State, 85 Ga. 718, 21 Am. St. Rep. 179, 11 S. E. 1035, 1890; Snelling v. State, 87 Ga. 50, 13 S. E. 154, 1891. [Ill] Cahill v. People, 106 Ill. 621, 1883. [Ky.] Fleetwood v. Com. 80 Ky. 1, 4 Am. Crim. Rep. 36, 1881. [Mass.] Com. v. Drew, 4 Mass. 391, 1810. [Mo.] State v. Green, 66 Mo. 631, 1877; State v. Underwood, 75 Mo. 230, 1881; State v. Turlington, 102 Mo. 642, 15 S. W. 141, 1890; State v. Renfrow, 111 Mo. 589, 20 S. W. 299, 1892; State v. Duncan, 116 Mo. 288, 22 S. W. 699, 18938. [N. Y.] People v. Wilson, 141 N. Y. 185, 36 N. E. 280, 1894. [Tex.] Angell v. State, 36 Tex. 542, 14 Am. Rep. 380, 1872. Jacobs v. State, 28 Tex. App. 79, 12 S. W. 408, 1889; Porez v. State, 29 Tex. App. 618, 16 S. W. 750, 1891; Weatherford v. State, 31 Tex. Crim. Rep. 530, 37 Am. St. Rep. 828, 21 S. W. 251, 1893; Miller v. State, 31 Tex. Crim. Rep. 609, 37 Am. St. Rep. 836, 21 8. W. 925, 1893. See also supra, § 534. 2 Hawk. P. C. chap. 13, §§ 48, 54. 8 Fost. C. L. 272. Infra, § 545. Mockabee v. Com. 78 Ky. 380, 1880. But see Glover v. State, 33 Tex. Crim. Rep. 224, 26 S. W. 204, 1894, as to killing of officer by third per- son. Fleetwood v. Com. 80 Ky. 1, 4 Am. Crim. Rep. 36, 1882. 41 Hawk. P. C. chap. 13, §§ 49, 50; State v. Grant, 79 Mo. 113, 49 Am. Rep. 218, 1883. 51 Hale, P. C. 488. See Id. 446; 1 Russell, Crimes, 535. Supra, §§ 257, 276. § 541] HOMICIDE, 727 the arrest were a constable who has authority in such cases to arrest, and such authority is announced, the killing has been held to be murder ;* but if the arresting party is a private per- son, manslaughter ;* the reason given being that the constable has authority, by law, to arrest in such case, but a private per- son has not.? The same rule is applied in all the cases where a person is arrested, or attempted to be arrested, upon a reason- able suspicion of felony.* But if an arrest, under color of legal authority, be illegally attempted or enforced, the better opinion now is that the killing of the person arresting, not in malice, but in resisting the arrest, is but manslaughter. And where A unlawfully attempt to arrest B, B is justified in resisting; and if A so presses B as to make it necessary for him to choose between submission and killing A, then the killing A is not even manslaughter.® 12 Hale, P. C. 84, 87, 91; and see [Eng.] Reg. v. Porter, 12 Cox, ©. C. 444, 1873; Rex v. Ford, Russ. & R. C. C. 329, 1818. [Cal.] People v. Pool, 27 Cal. 572, 1865. [Mich.] Drennan v. People, 10 Mich. 169, 1861. 2See 2 Hale, P. C. 83, 92. See Robinson v. State, 93 Ga. 77, 18 S. E. 1018, 44 Am. St. Rep. 127, 18 8. E. 1018, 9 Am. Crim. Rep. 570, 1893. 8 See, as to arrest, Wharton, Crim. Pl. & Pr. §§ 1-17. 4See Samuel v. Payne, 1 Dougl. K. B. 359. See Croom v. State, 85 Ga. 718, 21 Am. St. Rep. 179, 11 S. E. 1035, 1890. As to homicide to avoid arrest, see notes in 8 Am. St. Rep. 477 and 21 Am. St. Rep. 187. 5[Eng.] Tooley’s Case, 2 ld. Raym. 1296, 1710; Reg. v. Phelps, Car. & M. 180, 2 Moody, C. C. 240, 1841; Rex v. Patience, 7 Car. & P. 775, 1837; Rex v. Davis, 7 Car. & P. 785, 1837; Rex v. Thompson, 1 Moody, C. C. 80, 1825; Reg. v. Carey, 14 Cox, C. CO, 214, 1879. [Ala.] Noles v. State, 26 Ala. 21, 62 Am. Dec. 711, 1855. ([Del.] State v. Oliver, 2 Houst. (Del.) 585, 1855. [Ill.] Rafferty v. People, 69 Ill. 111, 18 Am. Rep. 601, 1 Am. Crim. Rep. 287, 1873, 72 Ill. 37, 1874. [Ky.] Hamlin v. Com. 11 Ky. L. Rep. 348, So if A’s assault on B has mixed in it a feloni- 12 S. W. 146, 1889. [Mass.] Com. v. Drew, 4 Mass. 391, 1810; Com. v. Carey, 12 Cush. 246, 1853. [Mich.] People v. Burt, 51 Mich. 199, 16 N. W. 378, 1882; People v. Gosch, 82 Mich. 22, 46 N. W. 101, 1890. [Mo.] Roberts v. State, 14 Mo. 146, 55 Am. Dec. 97, 1851. [N. C.] State v. Belk, 76 N. C. 10, 1877. [Tenn.] Galvin v. State, 6 Coldw. 283, 1869; Po- teete v. State, 9 Baxt. 261, 40 Am. Rep. 90, 1878. [Tex.] Tiner v. State, 44 Tex. 128, 1875; Ross vy. State, 10 Tex. App. 455, 38 Am. Rep. 643, 1881; Ex parte Sherwood, 29 Tex. App. 334, 15 S. W. 812, 1890. [Va.] Muscoe v. Com. 86 Va. 443, 10 S. E. 534, 8 Am. Crim. Rep. 602, 1890. Manslaughter by officer.—In State v. List, 1 Houst. Crim. Rep. (Del.) 133, 1865, it was held manslaughter when an officer, after being fired at by A, pursued, armed with a pistol, A into A’s house, and there was killed by A. 6 Infra, §§ 593-596. [Del.] State v. Oliver, 2 Houst. (Del.) 585, 1855. [Neb.] Drake v. State, 14 Neb. 535, 17 N. W. 117, 1883. [S. C.] State v. Anderson, 1 Hill, L. 327, 1833. [Tex.] Tiner v. State, 44 Tex. 128, 1875; Alford v. State, 8 Tex. App. 545, 1880. See Wharton, Crim. Pl. & Pr. §§ 5 et seq.; infra, § 544. 728 CRIMINAL LAW. [§ 541 ous intent, then B, if necessary to avert the danger, may take A’s life.” In other cases, where the intent of B was not to kill or inflict serious bodily harm, then the offense is but manslaugh- ter, though the arrest was legal,® while under a statute such case may be murder.® But a malicious and deliberate killing of an officer is murder, to which it is no defense that the officer was at the time endeavoring to arrest, on defective or void procedure, the defendant or his friends.’ § 542. Constable and policeman have authority to arrest when public order is threatened. As has already been inci- dentally noticed, constables, policemen, and other peace officers, as stated by Sir W. Russell, while in the execution of their offices, are under the peculiar protection of the law—a protection founded in wisdom and equity, and in every principle of politi- cal policy ; for without it the public tranquillity cannot possibly be maintained, or private property secured; nor in the ordinary course of things will offenders of any kind be amenable to jus- tice. For these reasons the killing of officers so employed has been deemed murder of malice prepense, as being an outrage wilfully committed in defiance of public justice! This pro- tection, as has been already observed, is not confined to the pe- 7 Supra, § 539. ®8 Reg. v. Porter, 12 Cox, C. C. 444, 1873. See State v. Gainor, 84 Iowa, 209, 50 N. W. 947, 1892. 9 State v. Green, 66 Mo. 631, 1877. 10 Rafferty v. People, 72 Ill. 73, 1873; Roberts v. State, 14 Mo. 138, 55 Am. Dec. 97, 1851. Homicide by officer in discharge of duty.—We have an elaborate discus- sion of the topic in the text in the argument of counsel and the opinion of Blackburn and Mellor, JJ., in Reg. v. Allen, reported in the Appendix to Stephen, Digest Crim. Law, 395. From the opinion of Blackburn, J., which is concurred in by Mellor, J., and as to which he consulted the other judges, we take the following: “When a constable, or other per- son properly authorized, acts in the execution of his duty, the law casts a peculiar protection around him, and consequently if he is killed in the execution of his duty, it is, in general, murder, even though there be such circumstances of hot blood and want of premeditation as would, in an ordinary case, reduce the crime to manslaughter. But where the warrant, under which the officer is acting, is not sufficient to justify him in arresting or detaining prison- ers, or there is no warrant at all, he is not entitled to this peculiar pro- tection, and, consequently, the crime may be reduced to manslaughter when the offense is committed on the sudden, and is attended by circum- stances according reasonable provo- cation.” If, however, the crime was committed maliciously, during de- liberate attempt to rescue, the ir- regularity of the warrant does not constitute any defense. See also [Neb.] Haunstine v. State, 31 Neb. 112, 47 N. W. 698, 1891. [N. Y.] People v. Carlton, 115 N. Y. 618, 22 N. E. 257, 1889. [Tex.] Miller v. State, 32 Tex. Crim, Rep. 319, 20 S. W. 1103, 1893. 1 Russell, Crimes, 535 et seq.; Rex v. Gardener, 1 Moody, ©. GC. 390; Rex v. Hagan, 8 Car. & P. 167, 1837. § 544] HOMICIDE. 729 riod when the peace officer is at the scene of action; for he is under the same protection of the law eundo, morando, et redeun- do.* If known to be a peace officer, about to repair to a scene of public disorder in the exercise of his duties, it is murder to kill him in order to prevent him from discharging his duties; and it is also murder to kill him after he leaves the spot in retreat or otherwise ;* if his authority is not known, the killing in hot blood is manslaughter.* A policeman or other officer appointed by the municipal au- thority for the preservation of order and the prevention of crime is entitled to the same protection which we have just stated to belong to a constable.® § 543. Bailiff’s power limited to arrest. As a general rule, in civil cases, though an officer may repel force by force, where his authority to arrest or imprison is resisted, and may do this to the last extremity in cases of reasonable necessity ; yet, if the party against whom the process has issued fly from the officer endeavoring to arrest him, or if he fly after an arrest actually made, or out of custody in execution for debt, the officer has no authority to kill him, though he cannot overtake or secure him by any other means.’ § 544. Officer executing process must be within juris- diction. As is stated by Sir William Russell,’ the party tak- ing upon himself to execute process, whether by writ or war- rant, must be a legal officer for that purpose, or his assistant; and if an officer make an arrest out of his proper district, or have no warrant or authority at all, or if he execute process out of the jurisdiction of the court from whence it issues, he will not be considered as a legal officer entitled to the special pro- tection of the law; and therefore if a struggle ensue with the party injured, and such officer be killed, this will be only man- slaughter.” 2 Supra, § 534; infra, § 557. Car. & P. 167, 1837—Bolland, B., 8 Ibid. and Coltman, J. See Reg. v. Porter, Resisting illegal act of officer— 12 Cox, C. C. 444, 1873. As will hereafter be seen, illegal 11 Hale, P. C. 481; Fost. C. L. action of officers may be forcibly re- 271; State v. Moore, 39 Conn. 244, sisted. Infra, §§ 849 et seq. 1872. Supra, § 529. 4Fleetwood v. Com. 80 Ky. 1, 4 1 Russell, Crimes, 9th Am. ed. 198— Am. Crim. Rep. 86, 1881. See State 748; 1 Ilale, P. C. 457-459; 1 East, v. Johnson, 76 Mo. 121, 1882. P. C. chap. 5, § 80, pp. 312, 314. 5 Rex v. Hems, 7 Car. & P. 312, 21 Russell, Crimes, 9th Am. ed. 1836—Williams, J.; Rex v. Hagan, 8 823, 824. [Eng.] Reg. v. Chapman, 730 CRIMINAL LAW. I$ 545 § 545. Notice may be inferred from facts. Where a party is apprehended in the commission of a felony, or on fresh pursuit, notice of the crime is not necessary, because he must know the reason why he is apprehended.’ So far as concerns riots and affrays it is ordinarily considered enough for an officer of justice who is present at a riot or affray within his district, in order to keep the peace, to produce his staff of office, or any other known ensign of authority, in the daytime, when it can be seen; and if resistance be made after this notification, and he or any of his assistants be killed, this has been held to be murder in every one who joined in such resistance.? § 546. If there be no notice, killing in self-defense is not murder. If the defendant, being placed in a position in which his life is imperiled, slay an officer of whose official character he has no notice, this is homicide in self-defense, if the killing was apparently necessary to save the defendant’s life; nor does it matter that the officer was legally seeking to arrest the defendant, the defendant having no notice of the fact. Nor should it be supposed that this exemption from dis- tinctive liability, in cases where the officer’s official character is not known, is founded on technical reasoning. Not only is it essential to the rights of the citizen that he shall be required to submit to arrest only when the official character of the demand is made known to him, but it is essential to the dignity of the 12 Cox, C. C. 4, 1871; Reg. v. Lock- ley, 4 Fost. & F. 155, 1864; Rex v. Mead, 2 Starkie, 205. [Ill.] Raf- ferty v. People, 69 Ill. 111, 18 Am. Rep. 601, 1 Am. Crim. Rep. 287, 1873; 72 Ill. 78, 1874. [Ky.] Bates v. Com. 14 Ky. L. Rep. 177, 19 S. W. 928, 1892. See Wharton, Crim. Pl. & Pr. §§ 5 et seq.; infra, § 851. 1 Wharton, Crim. Pl. & Pr. § 8. [Eng.] Rex v. Payne, 1 Moody, C. C. 378, 1833. See Rex v. Fraser, 1 Moody, C. C. 419; Rex v. Davis, 7 Car. & P. 785, Parke, B., 1837; Rex v. Taylor, 7 Car. & P. 266, Vaughan, J., 1835; Rex v. Woolmer, 1 Moody, C. C. 834; Rex v. Howarth, 1 Moody, C. C. 207, 1 Russell, Crimes, 9th Am. ed. 804, 813, 1828. Brown, -59 Cal. 345, 1881. [Ohio] Wolf v. State, 19 Ohio St. 248, 1890. 2 Fost. C. L. 311; 1 Hale, P. C. 315, 583. Infra, § 1871; Wharton, Crim. Pl. & Pr. § 16. 1[Eng.] Rex v. Ricketts, 3 Campb. 68, 13 Revised Rep. 753, 1812. [Mass.] Com. v. Kirby, 2 Cush. 577, 1849. [Mo.] State v. Underwood, 75 Mo. 230, 1881; State v. Johnson, 76 Mo. 121, 1882. [N. Y.] Yates v. People, 32 N. Y. 509, 1865; People v. Muldoon, 2 Park. Crim. Rep. 13, 1854. [Pa.] Logue v. Com. 38 Pa. 265, 80 Am. Dec. 481, 1861. [Tex.] John- son v. State, 26 Tex. 117, 1861. Compare: Supra, § 107; Plummer v. State, 135 Ind. 308, 34 N. E. 967, 1893. As to right to resist illegal acts of officers, see generally infra, §§ 849- [Cal.] People v. 851 § 549] HOMICIDE, ‘731 state that its servants should be sheltered by these official pre- rogatives only when they are acting legally, and give notice that they so act. And it has been held, as we have seen, only man- slaughter when a person arresting for a breach of the peace, having authority so to arrest, but not giving notice of such au- thority, is killed in hot blood by the person arrested.” On the other hand, if the killing be malicious, and not in self-defense, the offense is murder.® It should, however, be remembered that if the defendant knows the person apprehending to be an officer, he cannot set up as a defense his erroneous belief that the proceedings are irregular.* § 547. Warrant must be executed by party named or his assistant. The English rule is, that the warrant must be executed by the party named or described in it, or by some one assisting such party, either actually or constructively." § 548. Warrant continues in force until executed. There is no time at common law at which an unexecuted war- rant ceases to have effect; even after a party is brought before a magistrate, it is of force until judgment.’ § 549. Warrant in wrong name or with no offense, in- operative. Ifa constable, having a warrant to apprehend A B, arrest C B under the warrant, such arrest is illegal, although C B were the person against whom the magistrate intended to issue the warrant, and although the person who made the charge before the magistrate pointed out C B as the man against whom the warrant was issued.* 2 Fleetwood v. Com. 80 Ky. 1, 4 John Doe or Richard Roe, whose Am. Crim. Rep. 36, 1882. 3 Supra, § 541. 4Reg. v. Bentley, 4 Cox, C. C. 406, 1850. 1 Rex v. Whalley, 7 Car. & P. 245, 1835; Rex v. Patience, 7 Car. & P. 775, 1835; Wharton, Crim. Pl. & Pr. 1. ; 1 Dickenson v. Brown, Peake N. P. Cas. 807; Rex v. Williams, 1 Moody, C. C. 387. 1 Hoye v. Bush, 1 Mann. & G. 775, 2 Scott, N. R. 86, 1 Drinkw. 15, 15 L. J. Mag. Cas. N. 8. 168, 1840; so also Com. v. Crotty, 10 Allen, 403, 87 Am. Dec. 669, 1865, where a warrant specifying the defendant’s name as other name is to complainant un- known, is held void. See Wharton, Crim. Pl. & Pr. § 5. Rex v. Hood, 1 Moody, C. C. 281, 1830. Warrant with name in blank, and without other designation of the person to be arrested, is void. 1 Hale, P. C. 577; 2 Hale, P. C. 119; Fost. C. L. 312; 7 Dane, Abr. 248; 1 Chitty, Crim. Law, 39; Com. v. Crot- ty, 10 Allen, 403, 87 Am. Dec. 669, 1865; Mead v. Haws, 7 Cow. 332. —A warrant being defective and void on its face, an officer has no right to arrest the person on whom he attempted to serve it; and the person whom he sought to arrest 732 CRIMINAL LAW. [§ 549 It has also been held that a warrant omitting to state an offense is illegal.? § 550. Falsity of charge, no alleviation. As has already been noticed, the falsity of the charge contained in such process will afford no matter of alleviation for killing the officer, for every man is bound to submit himself to the regular course of justice,’ and, therefore, in the case of an escape warrant, the person executing it was held to be under the special protection of the law, though the warrant had been obtained by gross impo- sition on the magistrate, and by false information as to the mat- ters suggested in it.’ § 551. Warrant, without seal, void. At common law, ifa warrant commanding the arrest of an individual in the name of the state have no seal, it is void. If an officer attempt to arrest the party named upon such authority, he proceeds at his peril, and is a wrongdoer; and if he be killed in the attempt by the party, the slayer is guilty of manslaughter, and not of murder.? § 552. Informality not amounting to illegality. Where, however, a warrant is merely informal, but not illegal or in- sensible, its informality will be no palliation for the killing of the officer intrusted with its execution.? had a right to resist by force, using no more than was necessary to re- sist the unlawful acts of the officer. Com. v. Crotty, 10 Allen, 403, 87 Am. Dec. 669, 1865. See Shadgett v. Clip- son, 8 East, 328; Rex v. Hood, 1 Moody, C. C. 281; Hoye v. Bush, 2 Scott, N. R. 86, 1 Mann. & G. 775, 1 Drinkw. 15, 10 L. J. Mag. Cas. N. S. 168; Sandford v. Nichols, 13 Mass. 286, 7 Am. Dec. 151, 1816; Pearce v. Atwood, 138 Mass. 324, 1816; Com. v. Kennard, 8 Pick. 133, 1829. —Alteration of warrant of arrest after it left hands of issuing magis- trate, by the magistrate before whom it was made returnable, by inserting the name of the person against whom it is run, is illegal, and the warrant will not justify the arrest of such person. Haskins v. Young, 19 N. C. (2 Dev. & B. L.) 527, 31 Am. Dec. 426, 1837. —Misrecital of name of person to be arrested in the mandatory part of the warrant is cured by the correct recital of his name in the oath. Blair v. Horton, 51 N. C. (6 Jones, L.) 548, 1859. 2Money v. Leach, 1 W. Bl. 555; Ex parte Nisbett, 8 Jur. 1071, 1862; Caudle v. Seymour, 1 Q. B. 889, 1 Gale & D. 454, 10 L. J. Mag. Cas. N. P. 130, 5 Jur. 1196, 1841. 11 East, P. C. chap. 5, § 8, p. 310. 2Curtis’s Case, Fost. C. L. 135, 1756; and see Id. 312. 1Stockley’s Case, 1 East, P. C. chap. 5, § 310, 1772. See Housin v. Barrow, 6 T. R. 122, 3 Revised Rep. 135, and cases there cited; Steven- son’s Trial, 19 How. St. Tr. 846, 1759; R. v. Harris, 1 Russell, Crimes, 9th Am. ed. 833. 1 [Eng.] Rex v. Ford, Russ. & R. C. C. 329, 1817; Reg. v. Allen, 17 L. T. N.S. 222, 1867. See [Ga.] Boyd v. State, 17 Ga. 194, 1854. [Mass.] Sanford v. Nichols, 13 Mass. 286, 7 § 544] § 553. Warrant need not be shown. HOMICIDE. 733 It is not necessary that a warrant be shown to the party to be arrested, provided its substance be mentioned. Indeed, as is elsewhere stated,” if reading the warrant to the defendant is a prerequisite to an arrest, the defendant might never be arrested, for he might decline to wait to hear the warrant read.’ § 554. Arrest on charge of felony, lawful without war- rant. As is elsewhere seen,’ not only officers of justice, but private persons are employed to make arrest in cases where felonies can in no other way be prevented. Independently of this principle, which is not now under discussion, an officer, though without a warrant, has a right to arrest on charge of Am. Dec. 151, 1816; Com. v. Martin, 98 Mass. 4, 1867. Under English statute, see Reg. v. Roberts, 4 Cox, C. C. 145, 1849. Omission to state in assault that an assault had been committed is fatal. Caudle v. Seymour, 1 Q. B. 889, 1 Gale & D. 454, 10 L. J. Mag. Cas. N. 8S. 130, 5 Jur. 1196, 1841. As to other informalities. Jones v. Johnson, 5 Exch. 862, 20 L. J. Mag. Cas. N. 8. 11, 7 Exch. 452; Reg. v. Downey, 7 Q. B. 281, 15 L. J. Mag. Cas. N. S. 29, 9 Jur. 1073, 1845, for not directing that the party should be brought before some judge or jus- tice to be bound; State v. Oliver, 2 Houst. (Del.) 585, 1855. As to misrecital of name of pet- son to be arrested in the mandatory part of the warrent, and the cor- rect recital of his name in the oath upon which the warrant issued, see supra, § 549, footnote 1. Protection to officer in discharge of duty.—in Reg. v. Allen, 17 L. T. N. S. 222, 1867, Lord Blackburn wrote the following letter in reply to an application of counsel for the granting of a reserved case: “When a constable, or other per- son properly authorized, acts in the execution of his duty, the law casts a peculiar protection around him, and consequently, if he is killed in the execution of his duty, it is in gen- eral murder, even though there be such circumstances of hot blood and want of premeditation as would in an ordinary case reduce the crime to manslaughter. But when the war- rant under which the officer is act- ing is not sufficient to justify in ar- resting or detaining the prisoner, or there is no warrant at all, he is not entitled to this peculiar protection, and, consequently, the crime may be reduced to manslaughter when the offense is committed on the sudden, and is attended by circumstances affording reasonable provocation.” (Lond. Law Times, May 20, 1882.) 12 Hawk. P. C. chap. 13, § 28; though see State v. Garrett, 60 N. C. (Winst. L.) 144, 84 Am. Dee. 359, 1864; Gen. Stat. Mass. chap. 158, §1. The matter of showing warrant is a matter of statutory regulation in some of the states. Where the stat- ute provides in this regard, it is of course controlling. 2 Wharton, Crim. Pl. & Pr. § 7. 8 See [Eng.] Reg. v. Allen, 17 L. T. N. S. 222, 1867. [Mass.] Com. v. Cooley, 6 Gray, 350, 1856. [Mich.] Drennan v. People, 10 Mich. 169, 1862. [N. Y.] Arnold v. Steeves, 10 Wend. 514, 1833. [Ohio] Wolf v. State, 19 Ohio St. 248, 1869. Under English statute, see how- ever, Reg. v. Davis, Leigh & C. C. C. 64, 30 L. J. Mag. Cas. N. S. 159, 7 Jur. N. 8. 1040, 4 L. T. N.S. 559, 9 Week. Rep. 711, 7 Cox, C. C. 486, 1862. 1 Wharton, Crim. Pl. & Pr. §§ 8- 16. Supra, § 532; infra, § 626; Tol- bert v. State, 71 Miss. 179, 42 Am. St. Rep. 454, 14 So. 462, 1893. 734 CRIMINAL LAW. [§ 554 felony; and if the fact of his being an officer be known to the party attempted to be arrested, killing by the latter of the former will be murder, though no felony was in fact committed.? § 555. Arrest may be made during offense without war- rant. A class of statutes exists both in England and in this country which give authority not only to constables, but also to private persons, to apprehend parties found committing certain offenses specified in such statutes. In these cases it is requisite that the authority to apprehend should be strictly pursued, and the party supposed to be guilty must be apprehended either committing the offense or upon immediate and fresh pursuit.’ Independently of such statutes, it is held that an officer can arrest for all offenses committed in his presence,” though it is said in New York that this right is limited to felonies and breaches of the peace.® § 556. For past offenses, right limited to felonies and breaches of the peace. But however it may be with offenses committed in the presence of the officer, it is clear that in other cases the officer's right to arrest without warrant is limited to felonies which the defendant is reasonably suspected to have committed, and to breaches of the peace of which a renewal may be expected. But where 2 [Eng.] Rex v. Woolmer, 1 Moody, C. C. 334, 1832. [Ga.] Boyd v. State, 17 Ga. 194, 1856. [Miss.] White v. State, 70 Miss. 2538, 11 So. 632, 1892. 1[Eng.] Rex v. Curran, 3 Car. & P. 397, 1828; Hanway v. Boultbee, 1 Moody. & R. 15, 4 Car. & P. 350, 1841; Rex v. Fraser, 1 Moody, C. C. 419; Reg. v. Phelps, Car. & M. 180, 1841. [Ind.] Plummer v. State, 135 Ind. 308, 34 N. E. 968, 1893. [Mich.] People v. Burt, 51 Mich. 199, 16 N. W. 378, 1888. [Ohio] Wolf v. State, 19 Ohio St. 248, 1869. [Tex.] Porez v. State, 29 Tex. App. 618, 16 S. W. 750, 1891. 2Supra, §§ 517-518; Derecourt v. Corbishley, 5 El. & Bl. 188, 24 L. J. Q. B. N. S. 318, 1 Jur. N. 8. 870, 3 Week. Rep. 513, 1855; Reg. v. Mabel, 9 Car. & P. 474, 1840; Com. v. Dea- con, 8 Serg. & R. 47, 1822. See Reg. v. Light, 7 Cox, C. C. 389, Dears. & B. C. C. 332, 27 L. J. Mag. Cas. N. 8. a serious assault is threatened, 1, 3 Jur. N. S. 1130, 6 Week. Rep. 42, 1857. 3 Butolph v. Blust, 5 Lans. 84, 1871; Boyleston v. Kerr, 2 Daly, 220, 1867. 1Supra, §§ 528-532; Wharton, Crim. Pl. & Pr. §§ 1-10; Galliard v. Laxton, 2 Best & S. 363, 31 L. J. Mag. Cas. N. 8. 128, 8 Jur. N. S. 642, 5 L. T. N.S. 835, 10 Week. Rep. 353, 9 Cox, C. C. 127, 1862. See Reg. v. Walker, Dears. C. C. 358, 2 C. L. R. 485, 23 L. J. Mag. Cas. N. 8. 123, 18 Jur. 409, 2 Week. Rep. 416, 6 Cox, C. C. 371, 1855. Roscoe, Crim. Ev. ed. of 1874, de- clares this the “better opinion.” See, to same effect, [Eng.] Reg. v. Marsden, L. R. 1 C. C. 131, 37 L. J. Mag. Cas. N.S. 80, 18 L. T. N.S. 298, 16 Week. Rep. 711, 11 Cox, C. C. 90, 1868; Reg. v. Chapman, 12 Cox, C. C. 4, 1871. [Del.] State v. Oliver, 2 Houst. (Del.) 585, 1833. [Tex.] Tiner v. State, 44 Tex. 128, 1875. § 559] HOMICIDE. 735 and there is a probability of its execution, then the officer may arrest without warrant.? § 557. Killing officer arresting on reasonable suspicion is murder. Where there is a reasonable suspicion that a felony has been committed, and a charge has been made against a par- ticular defendant connecting him with it, killing in cool blood the officer who arrests the defendant will be murder, though he has no warrant, and though the charge does not in terms express all the partionlan necessary to constitute the felony." Whatever would amount to probable cause in an action for malicious prosecution is reasonable suspicion to justify an arrest.? § 558. Military and naval officers governed by the same rules. Military and naval officers, when acting without au- thority, are to be treated as private citizens, and are responsible as such. Hence, where an officer of a British ship of war, in the year 1769, attempted without a special warrant to impress several seamen in a Massachusetts merchant vessel, and was killed in the attempt, it was held but manslaughter, the deceased acting without authority.? § 559. Persons aiding officers, entitled to protection of officers. As has already been generally observed, everyone coming to the aid of the officers of justice, and lending his as- sistance for the keeping of the peace, or attending for that pur- pose, whether commanded or not, is under the same protection as the officer himself.1 One aiding a policeman in conveying a person suspected of felony to the station house is entitled to the same protection eundo, morando, et redeundo as the police- man. The deceased having been required by a policeman to aid him in taking a man, whom he had apprehended on sus- 2Reg. v. Light, Dears. & B. C. C. L. 309; Brooks v. Com. 61 Pa. 352, 332, 27 L. J. Mag. Cas. N.S. 1, 3 Jur. 100 Am. Dec. 645, 1869. N.S. 1130, 6 Week. Rep. 42, 7 Cox, C. C. 389, 1857. 1Supra, § 554; Rex v. Ford, Russ. & R. C. C. 329, 1817. 2Supra, § 531. See Wharton, Crim. Pl. & Pr. §§ 1-10. 1 Supra, § 538. 2Case of the crew of the Pitt Packet, 4 Boston Law Rep. 369. See supra, § ae as to Spencer’s Case. 11 Hale, P. C. 462, 463; Fost. Cc. Persons aiding officer—Protection of.—In such case the private persons so assisting are under the officer’s commands. People v. Moore, 2 Doug]. (Mich.) 1, 1844. Officer may have special private assistants. Coyles v. Hurtin, 10 Johns. 85, 1813. See State v. Alford, 80 N. C. 445, 1879; Wharton, Cr. Pl. & Pr. §§ 8, 10 et seq. Supra, § 537. CRIMINAL LAW. [§ 559 736 picion of stealing potatoes, to the station house, did so for some time, and then was going away, when he was attacked and beaten to death, and it was objected that he was not at the time aiding the policeman; Coltman, J., said, “He is entitled to protection cundo, morando, et redeundo.”* § 560. —So as to private persons lawfully arresting in- dependently of officers. The same sanction is, with certain restrictions hereinafter stated, extended to the cases of private persons interposing to prevent mischief from an affray, or using their endeavors to apprehend felons, or those who have given a dangerous wound, and to bring them to justice; such persons being likewise in the discharge of a duty required of them by the law. The law is their warrant, and they may not improp- erly be considered as persons engaged in the public service, and for the advancement of justice, though without any special ap- pointment; and being so considered, they are under the same protection as the ordinary ministers of justice.’ And it is murder for the defendant to kill one whom he knows to be pur- suing him for a felony of which he is the perpetrator.? § 561. Pursuer must show that felony was committed and that the person flying was guilty. But while it is clear that a private person is not only justified but obliged to do his best to bring felons to justice, as well as to prevent felony,’ party interfering on this principle should be clear, first, that a felony has already been committed, or that an apparent attempt to commit a felony is being made by the party arrested.? In the 2Rex v. Phelps, Car. & M. 180, 1841; Reg. v. Porter, 12 Cox, C. C. 444, 1873; State v. Oliver, 2 Houst. (Del.) 585, 1833. 1 Fost, C. L. 309; Jackson’s Case, 1 East, P. C. 298, 1676; Brooks v. Com. 61 Pa. 352, 100 Am. Dec. 645, 1869. See, however, supra, §§ 537, 559; infra, §§ 562, 628. 2Tbid. [Cal.] People v. Raten, 63 Cal. 421, 1882. [N. J.] Reuck v. Me- Gregor, 32 N. J. L. 70, 1867. [N. Y.] Holley v. Mix, 3 Wend. 350, 20 Am. Dec. 702, 1829. [N. C.] State v. Roane, 13 N. C. (2 Dev. L.) 58, 1830. [Tenn.] Galvin v. State, 6 Coldw. 283, 1869. 1 Ex parte Krans, 1 Barn. & C. 258, 2 Dowl. & R. 411, 25 Revised Rep. 389; 1 Russell, Crimes, 9th Am. ed, 734, 735, 18238. See, more fully, Com. v. Daley, 2 Clark (Pa.) 361, 1844; Com. v. Hare, 2 Clark (Pa.) 467, 1844. Dill v. State, 25 Ala. 15, 1854. Infra, §§ 1858-1871. 22 Inst. 52, 172; Fost. C. L. 318; Samuel v. Payne, 1 Dougl. K. B. 359; and in Coxe v. Wirral], Cro. Jac. 194, 1686, it was holden that, without a fact, suspicion is no cause of arrest; and 8 Ed. IV. 3, 5 Hen. VII. 5, 7 Hen. IV. 35, are cited. To same effect, see Burns v. Erben, 40 N. Y. 463, 1869; Hawley v. Butler, 54 Barb. 490, 1866. See supra, § 587; infra, § 628; Wharton, Crim. Pl. & Pr. § 18. § 563] HOMICIDE. 737 former case it must appear that the felony was apparently com- mitted by the person intended to be pursued or arrested; for, supposing a felony to have been actually committed, but not by the person arrested or pursued upon suspicion, this suspicion, unless apparently well founded, will not bring the person en- deavoring to arrest or imprison within the protection of the law, so far as to excuse him from the guilt of manslaughter if he should kill; or, on the other hand, to make the killing of him amount to murder. It seems that, in either case, it would only be manslaughter: the one not having used due diligence to be apprised of the truth of the fact; the other not having submit- ted and rendered himself to justice.’ § 562. Private person may interfere to prevent crime. Where a felony is in the process of commission a private person is authorized to interfere and arrest without a warrant.’ But such felony must, in order to authorize the killing of the felon, be one of violence, involving serious consequences;* and a stranger who interferes in a fight not in itself likely to be fatal, and kills one of the combatants, is chargeable at least with man- slaughter.’ § 563. Indictment found, good cause of arrest by pri- vate persons. An indictment found is a good cause of arrest by private persons, if it may be made without the death of the felon; but it is said that if he be killed, their justification must depend upon the fact of the party’s guilt, which it will be in- cumbent on them to make out; otherwise they will be guilty of manslaughter." Arrest by private person for felony v. Caton, 12 Cox, C. C. 624, 1874; ‘without warrant cannot be justified unless a felony was in fact com- mitted. State v. Rutherford, 8 N. C. (1 Hawks) 457, 9 Am. Dec. 658, 1822; Martin v. Houck, 141 N. C. 317, 7 L.R.A.(N.S.) 576, 54 8. E. 291, "1906. 31 Hale, P. C. 490; Fost. C. L. 318. ‘See State v. Rutherford, 8 N. C. (1 Hawks) 457, 9 Am. Dec. 658, 1822. lInfra, § 626; Rex v. Hunt, 1 Moody, C. C. 93; Reg. v. Price, 8 Car. -& P. 282, 1838. 2Infra, § 626. 3 Johnston’s Case, 5 Gratt. 660, 4848. See infra, §§ 626 et seq.; Reg. Crim. L, Vol. I1.—47. supra, 258. 1Dalton, County Justices, chap. 170, § 5; 1 East. P. C. chap. 5, §§ 68, 301. “There is this distinction between a private individual and a constable; in order to justify the former in causing the imprisonment of a per- son, he must not only make out a reasonable ground of suspicion, but he must prove that a felony has actual- ly been committed; whereas a con- stable, having reasonable ground to suspect that a felony has been com- mitted, is authorized to detain the party suspected until inquiry can be 738 CRIMINAL LAW. [§ 564 § 564. Railway officers may arrest passengers guilty of misconduct. A railway officer has a right to put out of the cars, in a careful way, so as not unnecessarily to hurt, a person who is disorderly in the cars, or who refuses to obey the rules of the company.’ But if the railway officer exact conditions which are unjust or illegal, then he is liable for any injury he or his assistants may inflict. And so if his mode of arrest or detention be unnecessarily severe,” the same principles govern the rights of the assailed party in resisting the assault. § 565. Arrest for breach of peace, illegal without cor- pus delicti. To sustain an arrest for a breach of the peace an actual breach of the peace at the time of the arrest must be proved.* § 566. In case of public disorder officers may enter house to arrest. Questions not unfrequently arise, says Sir William Russell,’ as to the authority of constables and other officers to interfere with persons in inns or beer houses. It is no part of a policeman’s duty to turn a person out of an inn, al- though he may be conducting himself improperly there, unless his conduct tends to'a breach of the peace.* Neither is it the duty of a policeman to prevent a person from going into a room in a public house, unless a breach of the peace was likely to be committed by such person in that room.* But if a person make such a noise and disturbance in a public house as would create alarm and disquiet the neighborhood, this would be such a breach of the peace as would justify a policeman in taking the party into custody, provided it took place in the presence of the policeman, or the policeman was attracted by the uproar in the house, or was called in by the landlord.* And unless the peace of the neighborhood be disturbed, or there be danger of the perpetration of a felony, the officer interferes at his own risk.§ ' made by the proper authorities.” | 1Russell, Crimes, 9th Am. ed. 810. Lord TenterJen, in Beckwith v. Phil- 2 Wheeler v. Whiting, 9 Car. & P. by, 6 Barn. & C. 635, 9 Dowl. & R. 262, 1840. 487, 5 L. J. Mag. Cas. 132, 1827. 8 Reg. v. Mabel, 9 Car. & P. 474, 1Infra, § 819. See Wharton, Neg. 1840, Parke, B. § 646, and cases there cited. 4 Howell v. Jackson, 6 Car. & P. 2 Reg. v. Mann, 6 Cox, C. C. 461, 728, 1834, Parke, B. 1854. 5Reg. v. Prebble, 1 Fost. & F. 1Rex v. Bright, 4 Car. & P. 387, 325, 1858. 1830. § 568] HOMICIDE, 739 An officer may also interfere in cases of flagrant breaches of the peace and attempted felonies in private houses, in which cases, if the danger be apparently urgent and extreme, he may enter, notifying his office, without a warrant,® and when he is armed with a warrant he may break open the doors to arrest, if he previously notify his business and be refused admittance.” He may also, after demand, break into a house, without war- rant, to rearrest an escaped prisoner.*® But, as to civil suits, the defendant in his own house is privileged from arrest.® § 567. Private persons interfering to quell riots should give notice of their purpose. Private persons interfering in riots for the furtherance of public justice should expressly avow their intention, or their killing will be but manslaughter.? If there be a malicious intention to kill, however, the case is murder.” § 568. Must be reasonable ground to justify arrest of vagrants. grants, there must be reasonable ground of suspicion. 6 Wharton, Crim. Pl. & Pr. §§ 18 et seq.; 2 Hawk. P. C. chap. 14, § 7; Shaw v. Chairitie, 3 Car. & K. 21. 7 Fost. C. L. 320; 1 Russell, Crimes, 9th Am. ed. 841; Elsee v. Smith, 1 Dowl. & R. 97; 2 Chitty, 304, 24 Re- vised Rep. 639, and see also the ex- cellent notes of Messrs. Hare and Wallace to Semayne’s Case, 5 Coke, 81, 1 Smith, Lead. Cas. 164. Compare: [Eng.] lLaunock v. Brown, 2 Barn. & Ald. 592, 21 Re- vised Rep. 410, [Del.] State v. Oliver, 2 Houst. (Del.) 585, 1833. [N. Y.] Curtis v. Hubbard, 1 Hill, 331, 1841; Glover v. Whittenhall, 6 Hill, 597, 599, 1844; People v. Hubbard, 24 Wend. 369, 35 Am. Dec. 628, 1840. [Pa.] Kneas v. Fitler, 2 Serg. & R. 263, 1816. [Vt.] State v. Hooker, 17 Vt. 659, 1845. Specifications of notice, however, may be waived by the House owner not asking for them. Com. v. Rey- nolds, 120 Mass. 190, 21 Am. Rep. 510, 1876. 8Cahill v. People, 106 Ill. 621, 1883. Breaking outer doors.—It is held that in such cases the officer, even without notice, may break the outer To justify the arrest of street walkers and va- The door, if the pursuit be immediate, and the defendant’s conduct such as to imply a waiver of notice. Allen v. Martin, 10 Wend. 300, 25 Am. Dec. 564, 1833; Com. v. McGahey, 11 Gray, 194, 1858. Where felony has been committed, or a dangerous wound given, the par- ty’s house is no sanctuary for him; and the doors may be forced after the notification, demand, and refusal, which have been mentioned. Fost. C. L. 320; 1 Hale, P. C. 459. And see 2 Hawk. P. C. chap. 14, § 7, where it is said that doors may be broken open, where one known to have com- mitted a treason or feiony, or to have given another a dangerous wound, is pursued, either with or without a warrant, by a constable or private person. 9See infra, § 646. _1Fost. C. L. 310, 311; United States v. Travers, 1 Brunner, Col. Cas. 467, 2 Wheeler, C. C. 510, Fed. Cas. No. 16,537, 1823; 1 East, P. C. chap. 5, § 58, p. 289. See supra, §§ 545, et seq.; infra, § 625. 2State v. Ferguson, 2 Hill, L. 619, 27 Am. Dec. 412, 1835. See Rex + Bourne, 5 Car. & P. 120, 1831. 740 CRIMINAL LAW. [§ 568 present and more humane opinion in this respect is, that the taking up of a person in the night, as a night walker and dis- orderly person, though by a lawful officer, would be illegal if the person so arrested were innocent, and there were no reason- able grounds of suspicion to mislead the officer.' § 569. Time of execution of arrest. The officer must also be careful not to make an arrest on a Sunday, except in cases of treason, felony, or breach of the peace; as, in all other cases, an arrest on that day will be the same as if done without any authority. But process may be executed in the nighttime as well as by day.' § 570. Manslaughter when officers take opposite parts. Where officers accidentally, and without malice, take opposite parts in an affray, and one of them is killed, this, says Lord Hale, seems but manslaughter, and not murder, inasmuch as the officers and their assistants were engaged one against the other, and each had as much authority as the other;? but upon this it has been remarked, that perhaps it had been better ex- pressed to have said, that inasmuch as they acted not so much with a view to keep the peace as in the nature of partisans to the different parties, they acted altogether out of the scope of 1Reg. v. Tooley, 2 Ld. Raym. 17 1296, 1810. Watchmen and beadles have au- thority, at common law, to arrest and detain in prison for examination persons walking in the streets at night, whom there is ground to sus- pect of felony, although there is no proof of felony having been com- mitted. Lawrence v. Hedger, 3 Taunt. 14, 12 Revised Rep. 371, 1811. And it has been said by Ilawkins and others that every private person may, by the common law, arrest any suspicious night walker, and detain him till he give a good account of himself. 2 Hawk. P. C. chap. 13, § 6, chap. 12, § 20. Night walker—Indictment.—And it has been held that a person may be indicted for being a common night walker, as for a misdemeanor. Id. chap. 12, § 20; Whelhorfey’s Case, Popham, 208; State ex rel. Coleman vy. Maxcy, 1 MeMull, L. 503, 1841. As to night walker, see infra, § 17. But this prerogative is liable to great abuse, and should be kept within strict bounds. See article in 20 Alb. L. J. 215; Roberts v. State, 14 Mo. 138, 55 Am. Dec. 97, 1851; Wharton, Crim. Pl. & Pr. § 80. Summary arrest of vagrants.— That statutes authorizing summary arrest of vagrants are constitutional, see [Mo.] Roberts v. State, 14 Mo. 138, 55 Am. Dec. 97, 1851. [N. Y.} People v. Forbes, 4 Park. Crim. Rep 611, 1858. [S. C.] State ex rel. Cole- man v. Maxcy, 1 McMull. L. 501, 1841. See also cases cited in Wharton, Crim. Pl. & Pr. § 80. As to vagrants, see more fully Wharton, Crim. Pl. & Pr. § 80. 1Mackalley’s Case, 9 Coke, 66a; 1 Hale, P. C. 457; 1 Hawk. P. C. chap. 18, § 62. See Wharton, Homi- cide, § 281. 11 Hale, P. C. 460. § 572] 741 HOMICIDE. their characters as peace officers, and without any authority whatever.* If the sheriff, says the same authority, have a writ of possession against the house and lands of A, and A, pretend- ing it to be a riot upon him, gain the constable of the vill to assist him, and to suppress the sheriff or his bailiffs, and in the conflict the constable be killed, this is not so much as man- slaughter; but if any of the sheriff’s officers were killed, it would be murder, because the constable had no authority to en- counter the sheriff’s proceeding when acting by virtue of the King’s writ.* § 571. A aiding B, when arrested, is in the same posi- tion as B. Whoever joins with a defendant in resisting proc- ess is in the same position, if he have notice, as the defendant himself. But malice in such case is imputable only to those who knew the officer was acting in an official capacity.? Persons interfering to release prisoners cannot take advantage of the informality of the warrant.* X. Inranricipe. § 572. Not homicide when—When is homicide To kill a child in its mother’s womb is no murder; but if the child be born alive, and die after birth through the potion or bruises received in the womb, it is murder in the person who adminis- 21 East, P. C. chap. 5, § 71, p. v. Weir, 1 Barn. & C. 261, 1823, 304. 31 Hale, P. C. 460; Anon. Exeter Sum. Ass. 1793; 1 East, P. C. chap. 5, § 71, p. 305; i Russell, Crimes, 9th Am. ed. 666, 841, 1See 1 Hale, P. C. 456; Holmes’s Case, Cro. Car. 378; Fost. C. L. 312, et seq.; 1 Hawk. BRC chap. 13, Yong’s Case, 4 Coke, 40 b. |Eng.] Hugget’s Case, J. Kelyng, 59. Rex v. Warner, 5 Car. & P. 525, 1 Moody, C. C. 385, 1833. See remarks of Pol- lock, C. B. ., in Reg. v. Davis, Leigh & C. C.C. 64, 9 Week. Rep. 711, 8 Cox, C. C. 486, 30 L. J. Mag. Cas. N. 8. 159, 7 Jur. N. 8. 1040, 4 L. T. N.S. 559, 1862. And see also Rex v. Hunt, 1 Moody, C. C. 93; Rex v. Curran, 3 Car. & P. 397, 1828; Reg. v. Price, 8 Car. & P. 282, 1838; Rex Stanley’s Case, J. Kelyng, 87; Rex v. Whithorne, 3 Car. & P. 394, 1828; Jackson’s Case, 1 Hale, P. C. 464, 465, 1675; Reg. v. Luck, 3 Fost. & F. 483, 1862; Reg. v. Dadson, 2 Den. C. C. 35, Temple & M. C. C. 385, 3 Car. & K. 148, 20 L. J. Mag. Cas. N.S. 57, 14 Jur. 1051, 4 Cox, C. C. 360, 1849. [Ga.] Boyd v. State, 17 Ga. 194, 1856. [Me.] State v. Murray, 15 Me. 100, 1837; State v. Hilton, 26 Me. 199, 1858. [Ohio] Wolf v. State, 19 Ohio St. 248, 1869. [N. C.] State v. Garrett, 60 N. C. (1 Winst. L.) 144, 84 Am. Dec. 359, 1864. Supra, § 545. 2State v. Zeibart, 40 Iowa, 169, 1874. 3 Reg. v. Allen, 17 L. T. N. S. 222, 1867. See infra, §§ 2003 et seq. 742 CRIMINAL LAW. [§ 572 tered or gave them.’ Where, also, a blow is maliciously given to a child while in the act of being born, as, for instance, upon the head as soon as the head appears, and before the child has breathed, it will be murder if the child is afterward born alive, and dies thereof.* If the child has been killed by the mother wilfully and of malice aforethought while it is alive, and has an independent circulation of its own, this is murder, although the child be still attached to its mother by the umbilical cord,* supposing it does not derive its power of existence from its con- nection with its mother.* But it must be proved that the child has actually been born into the world in a living state;* and the fact of its having breathed, so it has been decided, is not a conclusive proof thereof. It has also been held that if a person 1Co. Inst. 50; 1 Hawk. P. C. 13, § 16. Rex v. Senior, 1 Moody, C. C. 346, 1 Lewin, C. C. 183, 1832; Reg. v. West, 2 Cox, C. C. 500, 2 Car. & KX. 784, 1848; Rex v. Poulton, 5 Car. & P. 329, 1832; Reg. v. Wright, 9 Car. & P. 754, 1841; Evans v. People, 49 N. Y. 86, 1872. See discussion of this question in Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242, 1884, also ante, § 418. As to accomplice, see Johnson v. State, 32 Tex. Crim. Rep. 504, 24 S. W. 411, 1893. For life sentence, see Warren v. State, 33 Tex. Crim. Rep. 502, 26 S. W. 1082, 1894. 2 Rex v. Senior, 1 Moody, C. C. 346, 1 Lewin, C. C. 183, 1848; 3 Co. Inst. 50; 1 Hawk. P. C. chap. 13, § 16; 4 Bl. Com. 198; supra, § 456, 1 East, P. C. chap. 5, § 14, p. 228. Contra: 1 Hale, P. C. 433, and Staundf. 21. But the reason on which the opinions of the last two writers seem to be founded, namely, the difficulty of ascertaining the fact, cannot be considered as satisfactory, unless it be assumed that such fact never can be clearly established. 8 Reg. v. Trilloe, 1 Car. & M. 650, 2 Moody, C. C. 260, 1842; Evans v. People, 49 N. Y. 86, 1871. See infra, § 573. 4Reg. v. Handley, 13 Cox, C. C0. 79, 1874, 5 Wallace v. State. 7 Tex. App. 570, 1880, 10 Tex. App. 255, 1881, supra, § 430. 6Rex v. Sellis, 7 Car. & P. 850, 1837; Com. v. O’Donohue, 8 Phila. 623, 1871. Infra, § 578. See cases cited supra, § 430, Infanticide—It is ruled, however, if a child be actually wholly pro- duced alive, it is not necessary that it should have breathed to make it the subject of murder. Upon an in- dictment for the murder of a child, where it appeared that the dead body of the child was found in a river, and it was proved by two surgeons that it had never breathed, Park, J. A. J., said: “A child must be actually wholly in the world in a living state to be the subject of a charge of murder; but if it has been wholly born, and is alive, it is not essential that it should have breathed at the time it was killed, as many children are born alive, and yet do not breathe for some time after their birth.” Rex v. Brain, 6 Car. & P. 349, 1834. See also Reg. v. West, 2 Cox, C. C. 500, 2 Car. & K. 784, 1848. Compare: Rex y. Crutchley, 7 Car. & P. 814, 1837; Reg. v. Reeves, 9 Car. & P. 25, 1839; Rex v. Enoch, 5 Car. & P. 539, 1833; Reg. v. Wright, 9 Car. & P. 754, 1841; Rex v. Poulton, 5 Car. & P. 329, 1832, cited at large in Wharton, Homi- cide, § 446. § 574] HOMICIDE. 743 intending to procure abortion does an act which causes a child to be born so much earlier than the natural time that it is born in a state much less capable of living, and afterward dies in consequence of its exposure to the external air, the person who, by this misconduct, so brings the child into the world, and puts it thereby in a situation in which it cannot live, is guilty of murder if the misconduct was meant to kill; and the mere existence of a possibility that something might have been done to prevent the death would not render it the less murder.” If the misconduct was merely reckless, without an intent to kill, the offense is manslaughter.® § 573. Birth is a question of fact. Whether the child was born alive is a question of fact to be determined by all the circumstances of the case. Thus where the evidence went to prove that the child was dropped from the mother when she was at a privy, and was smothered in the soil, it was held a question to be determined in the first place by the jury whether the child was alive at the birth.1_ The question of killing is in like manner to be determined by inference from all the facts.? § 574. Killing of child by negligent exposure is man- slaughter. A principle of much importance bearing on this question, and one that has been more fully discussed in a previ- ous chapter in its general relations, is, that if a person do or omit any act toward another who is helpless, which act or omis- sion in usual natural sequence leads to the death of that other, the crime amounts to murder if the act or omission be intention- al; but if the circumstances are such that the person would not or could not have been aware that the result would be death, this would reduce the crime to manslaughter, provided the death was occasioned by an unlawful act, but not such an act as showed a malicious mind.? 7Reg. v. West. 2 Cox, C. C. 500, 2 1[Eng.] Reg. v. Walters, Car. & Car. & K. 784, 1848. M. 164, 1841; Stockdale’s Case, 2 8 Reg. v. Handley, 13 Cox, C. C. Lewin, C. C. 220 [1838]; Reg. v. 79, 1874. Middleship, 5 Cox, C. C. 275, 1850. 1Reg. v. Middleship, 5 Cox, C. C. [Ala.] Griffith v. State, 90 Ala. 583, 275, 1850; State v. Winthrop, 43 8 So. 812, 1891. [Tex.] Warren v. Towa, 519, 22 Am. Rep. 257, 2 Am. State, 380 Tex. App. 57, 16 8S. W. 747, Crim. Rep. 274, 1876; supra, § 420. 1894. 2 Peters v.. State, 67 Ga. 29, 1881; See fully discussion, supra, §§ 73, supra, § 430. 456, 484; infra, §§ 1880, et seq. 744 CRIMINAL LAW. [§ 575 XI. Surcrps. § 575. Surviving principals in suicide indictable for murder. Whoever is present, actually or constructively, en- couraging the violent and illegal death of another, is responsi- ble for such death, even though it was voluntarily submitted to by the deceased. Thus, if two persons encourage each other to commit suicide jointly, and one succeeds and the other fails in the attempt upon himself, he is a principal in the murder of the other.? Nor is it necessary to prove that the deceased would not have killed himself without the defendant’s co-operation ; nor does it make any difference that the deceased was at the time under sentence of death.® § 576. At common law there can be no conviction of ac- cessories before the fact to suicide. As at common law the principal must be convicted before a conviction of the accessory, there can be at common law no conviction of an accessory before the fact to suicide, because the suicide is beyond the process of the courts... But by statutes in England and several of the United States, the advising another to commit suicide is made a substantive indictable offense.” § 577. Killing may be murder when incident to produc- ing an abortion. A woman desires to miscarry of a child with which she is pregnant, and assents to an operation for this purpose; and dies from the operation. Whether, in such case, the offense is murder or manslaughter, depends largely on the 1 Rex v. Sawyer, 1 Russell, Crimes & Misdemeanors, 9th Am. ed. 670; Rex v. Dyson, 1 Russ. & R. C. C. 528, 1819; State v. Avery, 113 Mo. 475, 21 S. W. 193, 1893. 2Supra, § 254; Rex v. Dyson, 1 Russ. & R. C. C. 528, 1819; Reg. v. Alison, 8 Car. & P. 418, 1838; Rex v. Sawyer, 1 Russell, Crimes & Mis- demeanors, 9th ed. 670, 1893; Black- burn v. State, 23 Ohio St. 165, 1872; State v. Levelle, 34 S. C. 120, 27 Am. St. Rep. 799, 13 S. E. 319, 1891. 3Com. v. Bowen, 13 Mass. 359, 7 Am. Dec. 154, 1814; United States v. Hare, 2 Wheeler, C. C. 821, Fed. Cas. No. 15,305, 1823; Pamph. Tr. 1816. See comments in Com. v. Dennis, 105 Mass. 162, 1870; Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109, 1877; and see supra, §§ 254, 451. By statute in Missouri fense is manslaughter. Ludwig, 70 Mo. 412, 1879. 1Reg. v. Leddington, 9 Car. & P. 79, 1839; Rex v. Russell, 1 Moody, C. C. 356, 1832. 2See supra, § 182; infra, § 578. As to Ohio, see Blackburn v. State, 23 Ohio St. 165, 1872. By § 175, New York Penal Code of 1882, whoever “wilfully in any manner encourages, advises, assists, or abets another person in attempt- ing to take the latter’s life,” is guilty of a felony. the of- State v. § 579] HOMICIDE. 145 intent as appearing on the whole case.' If the intent were to kill or grievously injure her, the offense is murder; it is man- slaughter if the intent were only to produce the miscarriage, the agency not being one from which death or great injury would be likely to result.? But suppose the operation be one which is essential to the preservation of the mother’s life? In this case the fact of such necessity is, as will be presently shown in fuller detail, a defense, should the operation terminate fatally. § 578. Consent of deceased, no bar to prosecution for homicide. That consent in such cases is no bar is an axiom acknowledged by all schools of jurisprudence, and rests on the maxim, Jus publicum privatorum voluntate mutari nequit.* Of this we may recur to an illustration given in Pennsylvania in 1826, in which it was held that an agreement not to bring a writ of error in a criminal case of high degree does not pre- clude the defendant from bringing such writ. “What consid- eration,’ said Chief Justice Tilghman, in words that may be here repeated as touching the immediate point before us, “can a man have received, adequate to imprisonment at hard labor for life? It is going but one step further to make an agree- ment to be hanged. I presume no one would be hardy enough to ask the court to enforce such an agreement, yet the principle is, in both cases, the same.’’® § 579. Killing another with his consent in order to avoid a greater evil. It has just been seen that the consent of the deceased is no defense to an indictment for murder; for no one can by consent validate the taking of his own life. But suppose A is assailed by a fatal disease from which the only escape is a dangerous surgical operation; and that this opera- tion is skilfully performed by B at A’s request, but that A dies under the knife?* On this point, Lord Macaulay, in his Re- 1See supra, §§ 450, 516. 2Smith v. Com. 14 Serg. & R. 69, 2Reg. v. Gaylor, Dears. & B.C. C. 1826. 288, 7 Cox, C. C. 258, 1857. Supra, Sir J. F. Stephen, Digest Crim. §§ 450, 516. Law, 5th ed. art. 225, takes the view 8 As to Illinois statute making it given in the text, saying, “I know murder to kill incidental to abortion of no authority for these proposi- unless the abortion was necessary, tions, but I apprehend they require see Beasley v. People, 89 Ill. 571, none. The existence of surgery as- 1878. Infra, § 777. sumes their truth.” 1See supra, §§ 182, 497. 746 CRIMINAL LAW. [§ 579 port on the Indian Penal Code, says: “It is often the wisest thing a man can do to expose his life to great hazard. It is often the greatest service that can be rendered to him to do what may very probably cause his death. He may labor under a cruel and wasting malady which is certain to shorten his life, and which renders his life, while it lasts, useless to others and a torment to himself. Suppose that under these circumstances he, undeceived, gives his free and intelligent consent to take the risk of an operation which in a large proportion of cases has proved fatal, but which is the only method by which his disease can possibly be cured, and which, if it succeeds, will restore him to health and vigor. We do not conceive that it would be expedient to punish the surgeon who should perform the operation, though by performing it he might cause the death, not intending to cause death, but knowing himself likely to cause it. Again, if a person attacked by a wild beast should call out to his friends to fire, though with imminent hazard to himself, and they were to obey the call, we do not conceive that it would be expedient to punish them, though they might by firing cause his death, and though when they fired they knew themselves to be likely to cause his death.” The same rule applies, as has been argued by Bar, an able German jurist, in cases where consent, on account of mental incapacity, cannot be given. Suppose a dangerous operation is required as the last hope of resuscitating an unconscious person. If the opera- tion is performed with the skill usual to surgeons under such circumstances, this is a good defense if death ensue.® § 580. Manslaughter, etc. Killing another, unintention- ally and negligently, such other being desirous of committing suicide, is manslaughter.’ § 581. Attempts, etc. At common law, as we have already seen, an attempt to commit suicide has been held to be a mis- demeanor." 2See infra, §§ 640, 641. N. S. 472, 11 Week. Rep. 96, 1862; 1See Com. v. Mink, 123 Mass. 422, cited with approval in Com. v. Mink, 25 Am. Rep. 109, 1878, cited’supra, § 123 Mass. 422, 25 Am. Rep. 109, 453. And see § 555. 1878. 1Reg. v. Doody, 6 Cox. C. C. 463, Compare: Supra, § 214. 1854; Reg. v. Burgess, Leigh & C. C. By § 178 of the New York Penal C. 258, 9 Cox, C. C. 247, 32 L. J. Mag. Code of 1882, an attempt to com- Cas. N. S. 55, 9 Jur. N.S. 28, 7 L. T. mit suicide is made a felony. § 582] HOMICIDE. 747 XII. Provocation anp Hor Broop.! § 582. Loss of self-control, essential to the defense. To sustain provocation as a defense it must be shown that the de- fendant, at the time of the fatal blow, was “deprived of the power of self-control by the provocation which he had received ; and, in deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval and to all other circumstances tending to show the state of his mind.? 1As to burden of proof as to provocation, see Wharton, Crim, Ev. § 334. And see also, 6 Enc. Ev. p. 5938, et seq. 2See supra, § 419 footnote, 13; Stephen’s Digest Crim. Law, 5th ed. art. 246. [Ala.] Smith v. State, 83 Ala. 26, 3 So. 551, 1888; Holmes v. State, 88 Ala. 26,16 Am. St. Rep. 17, 7 So. 193, 1890; Reese v. State, 90 Ala.: 624, 8 So. 818, 1891; Spring- field v. State, 96 Ala. 81, 38 Am. St. Rep. 85, 11 So. 250, 1892. [Ga.] Roberson v. State, 87 Ga. 209, 13 S. E. 696, 1891; Jones v. State, 87 Ga. 525, 138 S. E. 591, 1891; McDuffie v. State, 90 Ga. 786, 17 S. E. 105, 1892; Battle v. State, 92 Ga. 465, 17 S. E. 861, 1893; Thorpe v. State, 92 Ga. 470,17 S. E. 693, 1893. [Ill.] Silgar v. People, 107 Ill. 563, 1883. [Md.] Patterson v. State, 66 Ind. 185, 1879. [Iowa] State v. Adams, 78 Iowa, 292, 48 N. W. 194, 1889; State v. Sterrett, 80 Iowa, 609, 45 N. W. 401, 1890. [Ky.] Hays v. Com. 12 Ky. L. Rep. 611, 14S. W. 833, 1890; Cotrell v. Com. 13 Ky. L. Rep. 305, 17 S. W. 149, 1891; West v. Com. 14 Ky. L. Rep. 217, 20 S. W. 219, 1892; Caskey v. Com. 15 Ky. L. Rep. 257, 23 S. W. 368, 1893; Handly v. Com. 15 Ky. L. Rep. 736, 24 S. W. 609, 1894. [La.] State v. Ashley, 45 La. Ann, 1036, 18 So. 738, 1893. [Mich.] People v. Hull, 86 Mich. 449, 49 N. W. 288, 1891; People v. Palmer, 96 Mich. 580, 55 N. W. 994, 1898. [Miss.] Thomas v. People, 61 Miss. 60, 1881. [Mo.] State v. Berkley, 109 Mo. 665, 19 S. W. 192, 1892; State v. Crab- tree, 111 Mo. 136, 20 S. W. 7, 1892; State v. Alfrey, 124 Mo. 393, 27 8. W. 1097, 1894. [Mont.] State v. Baker, 13 Mont. 160, 32 Pac. 647, 1893. [N. Y.] People v. Kennedy, 51 N. Y. S. R. 811, 22 N. Y. Supp. 267, 1893. [Or.] State v. Henderson, 24 Or. 100, 32 Pac. 1030, 1893. [Pa.] Com. v. Ware, 137 Pa. 465, 20 Atl. 806, 1890. [S. C.] State v. Way, 38 S. C. 333, 17 S. E. 39, 1892; State v. Workman, 39 8. C. 151, 17 S. E. 694, 1892. [Tex.] Fowler v. State, — Tex. Crim. Rep. —, 22 8S. W. 587, 1893; Lienpo v. State, 28 Tex. App. 179, 12 S. W. 488, 1889; Pitts v. State, 29 Tex. App. 374, 16 S. W. 189, 1891. Wolfforth v. State, 31 Tex. Crim. Rep. 387, 20 S. W. 741, 1892; Scroggins v. State, 32 Tex. Crim. Rep. 71, 22 S. W. 45, 1893. “Sudden provocation may be given, or a sudden affray may occur, which, if acted on in the heat of passion produced thereby, might mitigate homicide to manslaughter; yet if the provocation, though sudden, be not of that character which would, in the mind of a just and reasonable man, stir resentment to violence en- dangering life, the killing would be murder.” Fields v. State, 52 Ala. 348, 1875; Judge v. State, 58 Ala. 406, 29 Am. Rep. 757, 1877; Mitchell v. State, 60 Ala. 26, 1877; Holmes v. State, 88 Ala, 26, 16 Am. St. Rep. 17, 17 So. 193, 1890. 748 CRIMINAL LAW. [§ 583 § 583. Words of reproach, not adequate provocation. Where the evidence shows an intent on the part of the defendant to kill, no words of reproach, no matter how grievous, are provo- noe sufficient to free the party killing from the guilt of mur- der ; ? nor are indecent provoking actions or gestures is ach of coiteliint or reproach without an assault upon the person.? 1[Cal.] People v. Murback, 64 Cal. 869, 30 Pac. 608, 1883 [Mo.] State v. Bryant, 102 Mo. 24, 14 S. W. 822, 1890; State v. Berkley, 109 Mo. 665, 19 S. W. 192, 1892. [Tenn.] Turner v. State, 89 Tenn. 547, 15 S. W. 838, 1891. The words must be spoken by the victim. People v. Murback, 64 Cal. 369, 30 Pac. 608, 1883; State v. Lewis, 14 Mo. App. 191, 1883. Words however opprobrious will not justify killing. [Ill] Steffy v. People, 130 Ill. 98, 22 N. E. 861, 1889. [Mass.] Com. v. York, 9 Met. 93, 43 Am. Dec. 373, 1845; Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [Mo.] State v. Elliott, 98 Mo. 151, 11 S. W. 566, 1889. [Tex.] Levy v. State, 28 Tex. App. 203, 19 Am. St. Rep. 286, 12 8. W. 596, 1889. In the case of Levy v. State, 28 Tex. App. 208, 19 Am. St. Rep. 826, 12 S. W. 596, 1889, some of the state’s witnesses testified that the defendant remarked, “I am no son of a bitch;” “he can’t call me a damned son of a bitch.” If these latter were, either of them, the cause of the killing, then to use such ex- pression about another would not come within the legal meaning of our statutory terms, “insulting words toward a female relative,” and would not be adequate cause to reduce a killing to manslaughter. See Sim- mons y. State, 23 Tex. App. 653, 5 S. W. 208, 1887. 21 Hale, P. C. 456; Fost. C. L. 290. [Fed.] United States v. Travers, 1 Brunner, Col. Cas. 467, 2 Wheeler, C. C. 504, Fed. Cas. No. 16,537, 1814, per Story, J.; United States v. Wilt- berger, 3 Wash. C. C. 515, Fed. Cas. No, 16,738, 1822. [Ala.] Taylor v. State, 48 Ala. 180, 1872; Judge v. State, 58 Ala. 406, 29 Am. Rep. 757, 1878; Roberts v. State, 68 Ala. 515, 1881. [Cal.] People v. Freeland, 6 Cal. 96, 1856; People v. Butler, 8 Cal. 435, 1857; People v. Turley, 50 Cal. 469, 1875. [Del.] State v. O’Neal, Houst. Crim. Rep. (Del.) 58, 1863. [Ga.] Ray v. State, 15 Ga. 223, 1855; Jackson v. State, 45 Ga. 198, 1872; Bird v. State, 55 Ga. 317, 1875; Ross v. State, 59 Ga. 248, 1877; Hanvey v. State, 68 Ga. 612, 1881; Wortham v. State, 70 Ga. 336, 1882. [Ky.] Rapp v. Com. 14 B. Mon. 614, 1854. [Mass.] Com. v. York, 9 Met. 93, 48 Am. Dec. 373, 1844. [Minn.] State v. Shippey, 10 Minn. 228, Gil. 178, 88 Am. Dec. 70, 1865. [Miss.] Preston v. State, 25 Miss. 383, 1853; Evans v. State, 44 Miss. 762, 1871; Edwards v. State, 47 Miss. 581, 1872. [Mo.] State v. Starr, 38 Mo. 270, 1867; State v. Evans, 65 Mo. 574, 1877; State v. King, 78 Mo. 555, 1883. [Nev.] State v. Anderson, 4 Nev. 265, 1867; State v. Crozier, 12 Neb. 300, 1877. [N. Y.] Yates v. People, 32 N. Y. 509, 1865. [N. C.] State v. Tackett, 8 N. C. (1 Hawks.) 210, 1822; State v. Merrill, 18 N. C. (2 Dev. L.) 269, 1830; State v. Carter, 76 N. C. 20, 1877.. [Pa.] Green v. Com. 83 Pa. 75, 1876; Abernethy v. Com. 101 Pa. 322, 1882. [Tenn.] Williams v. State, 3 Heisk. 376, 1872. [Tex.] Johnson v. State, 27 Tex. 758, 1865; Myers v. State, 38 Tex. 525, 1870. [Wis.] State v. Martin, 30 Wis. 216, 11 Am. Rep. 567, 1872. See qualifications stated in Reg. v. Rothwell, 12 Cox, C. C. 145, 1871. Killing under passion aroused by insult, see [Ala.] Ex parte Sloane, 95 Ala. 22, 11 So. 14, 1892. [Mo.] State v. Martin, 124 Mo. 514, 28 S. W. 12, 1894. [N. C.] State v. McNeill, 92 N. C. 812, 1885; State v. Pankey, 104 N.C. 840, 10 S. E. 315, 1889. [S. C.] State v. Levelle, 34 8. OC. 120, 27 Am. St. Rep. 799, 13 S. E. 319, 1891. § 584] HOMICIDE. 749 At the same time it must be remembered that an assault, too slight in itself to be a sufficient provocation, may become such by being coupled with and explained by insulting words.® By statute in some jurisdictions “insulting words and conduct to a female relative” are regarded as sufficient provocation to reduce homicide under their immediate influence to manslaugh- ter.* § 584. When person is touched, then provocation re- duces degree. The moment, however, the person of the de- fendant is touched with apparent insolence, then the provoca- tion is one which, ordinarily speaking, reduces the offense to manslaughter.’ Thus it has been held that if A be passing along the street, and B meeting him (there being a convenient distance between A and the wall) take the wall of him, and thereupon A kill B, this is murder;? but if B had jostled A, this jostling, if made with such apparent insolence as to pro- voke a quarrel, and if hastily resented by A, in hot blood, re- duces the grade to manslaughter.’ A fortiori, where an assault is made with violence or circum- stances of indignity upon a man’s person, as by pulling him by the nose, and the party so assaulted kills the aggressor, the crime will be reduced to manslaughter, in case it appears that the —Insult must be to “female rel- ative.” Moore v. State, 31 Tex. Crim. Rep. 234, 20 S. W. 563, 1892; Halliburton v. State, 32 Tex. Crim. Rep. 51, 22 S. W. 48, 1893. See also Ex parte Jones, 31 Tex. Crim. Rep. 422, 20 S. W. 983, 1893. Mere going to house of deceased to demand explanation, etc., not suf- ficient. [Ala.] Johnson v. State, 102 Ala. 1, 16 So. 99, 1894. [La.] State v. Williams, 46 La. Ann. 709, 15 So. 82, 1894. [S. C.] State v. McIntosh, 89 S.C. 97,17 S. EH. 446, 1892. 8 [Eng.] Reg. v. Sherwood, 1 Car. & K. 556, 1844; Reg. v. Rothwell, 12 Cox, C. C. 145; Reg. v. Smith, 4 Fost & F. 1066,1866. [Ga.] Mitchell v. State, 41 Ga. 527, 1870. [Mich.] Hurd v. People, 25 Mich. 405, 1872; Nye v. People, 35 Mich. 16, 1877. [Mo.] State v. Keene, 50 Mo. 857, 1873. See also cases cited infra, §§ 596 et seq. 4[Cal.] People v. Turley, 50 Cal. 469, 1875. [Tenn.] Williams v. State, 3 Heisk. 376, 1872. [Tex.] Hill v. State, 5 Tex. App. 2, 1878; Hudson v. State, 6 Tex. App. 565, 32 Am. Rep. 593, 1879. Richardson v. State, 9 Tex. App. 612, 1880; Eanes v. State, 10 Tex. App. 421, 1881; Levy v. State, 28 Tex. App. 203, 19 Am. St. Rep. 826, 12 S. W. 596, 1889; Richardson v. State, 28 Tex. App. 216, 12 S. W. 870, 1889; Lane v. State, 29 Tex. App. 310, 15 S. W. 827, 1890. See Jones v. State, 33 Tex. Crim. Rep. 492, 47 Am. St. Rep. 46, 26 S. W. 1082, 1894. 1 People v. Burt, 51 Mich. 199, 16 N. W. 378, 1883; Erwin v. State, 29 Ohio St. 186, 23 Am. Rep. 733, 2 Am. Crim. Rep. 251, 1876. : 2See State v. Smith, 77 N. C. 488, 1877. 31 Hale, P. C. 455. Infra, § 600; Felix v. State, 18 Ala. 720, 1849. 750 CRIMINAL LAW. [§ 584 assault was resented immediately, and the aggressor killed in the heat of blood, the furor brevis occasioned by the provocation. And so it was considered that where A was riding on the road and B whipped the horse of A out of the track, and then A alighted and killed B, it was only manslaughter.* § 585. Interchange of blows reduces to manslaughter. Though words of slighting, disdain, or contumely will not of themselves make such a provocation as to lessen the crime to manslaughter; yet if A use insulting language to B, and B thereupon strike A, but not mortally, and then A strike B back, and then B kill A, this is but manslaughter. The stroke by A is deemed a new provocation, and the conflict a sudden falling out; and the killing is therefore considered only manslaughter.” And in a sudden fight thus arising it is immaterial who struck the first blow.* § 586. A slight provocation extenuates when intent is only to chastise. A large class of cases occur in practice where slight provocations, as has been already incidentally noticed, have been considered as extenuating the guilt of homicide, upon the ground that the conduct of the party killing upon such provocations might fairly be attributed to an intention to chas- tise, rather than to a cruel and implacable malice. But, in cases of this kind, it must appear that the punishment was not urged with brutal violence, nor greatly disproportionate to the offense ; and the instrument must not be such as, from its nature, was likely to endanger life. Thus where it appeared that the 4Reg. v. Mawgridge, J. Kelyng, Penal Code. See Evers v. State, 31 135; 1 Hale, P. C. 455. 1Ibid. [Eng.] Rex v. Ayes, 1 Russ. & R. C. C. 166, 1814. [Pa.] Pennsyl- vania v. Biron, 4 Dall. 125, 1 L. ed. 769, 1793. [Fed.] United States v. Mingo, 2 Curt. C. C. 1, Fed. Cas. No. 15,781, 1851. [Del.] State v. Davis, 1 Houst. Crim. Rep. (Del.) 13, 1863. [Iowa] State v. Abarr, 39 Iowa, 185, 1874, [N. C.] State v. Massage, 65 N. C, 480, 1871. [Tenn.] Petty v. State, 6 Baxt. 610, 1875. [Tex.] Jackson v. State, 32 Tex. Crim. Rep. 192, 22 S. W. 831, 1893. [Wis.] Schlect v. State, 75 Wis. 486, 44 N. W. 509, 1890. Infra, § 599. “Insulting words” under Texas Tex. Crim. Rep. 318, 18 L.R.A. 421, 387 Am. St. Rep. 811, 20 S. W. 744, 1892; Polk v. State, 30 Tex. App. 657, 18 S. W. 466, 1892. 2Rex v. Snow, 1 East, P. C. 244, 1 Leach, C. L. 151, 1776; Rex v. Rankin, 1 Russ. & R. C. C. 43, 1810; Pennsylvania v. Biron, 4 Dall. 125, 1 L. ed. 769, 1793; State v. Massage, 65 N. C. 480. 1 Fost. C. L. 291; 4 Bl. Com. 200. [Eng.] Rex v. Howlett, 7 Car. & P. 274, 1836; Rex v. Wigg, 1 Leach, C. L. 878, 1784; Rex v. Freeman, 1 Russell, Crimes, 518. [Ala.] John- son v. State, 133 Ala. 38, 31 So. 591, 1902. [Ga.] Thompson vy. State, 55 Ga. 47, 1875. Iowa] State v. § 586] HOMICIDE. 751 prisoner, having employed her stepdaughter, a child ten years old, to reel some yarn, and finding some of the skeins knotted, hres at the child a four-legged stool, which struck her on the right side of the head on the temple, and caused her death soon after the blow so given; and it was also shown that the stool was of sufficient size and weight to give a mortal blow, but that the prisoner did not intend, at the time she threw the stool, to kill the child—the matter was considered of great difficulty, and no opinion was ever delivered by the judges. The doubt appears to have been principally upon the question whether the instrument was such as would probably, at the given distance, have occasioned death or great bodily harm.? O’Brien, 81 Iowa, 88, 46 N. W. 752, pet [N. C.] State v. Tackett, 8 N. (1 Hawks) 210, 1822; State v. Robern, 8 N.C. (1 Hawks) 349, 9 Am. Dec. 643, 1822. [Pa.] Com. v. Green, 1 Ashm. (Pa.) 289, 1826. 2 Rex v. Hazel, 1 Leach, C. L. 368, 1 East, P. C. 236, 1785. Provocation—Intent to chastise.— Where a man who was sitting drink- ing in an alehouse, being called by a woman “a son of a whore,” took up a broomstaff and threw it at her from a distance, and killed her, after conviction of murder a pardon was advised; and the doubt appears to have arisen upon the ground that the instrument was not such as could probably, at the given distance, have occasioned death or great bodily harm. 1 Hale, P. C. 455, 456. See Felix v. State, 18 Ala. 720, 1851. Boy stealing wood from park.— The keeper of a park, finding a boy stealing wood in his master’s ground, tied him to a horse’s tail and beat him, upon which the horse running away, the boy was killed. It was said that if the chastisement had been more moderate, it had been but manslaughter; Halloway’s Case, Cro. Car. 131; 1 Hale, P. C. 434; 1 East, P.C. chap. 5, § 22, p. 239; but, on the evidence, the offense was murder, since death, through a process so erue] and dangerous, was ground from which malice could be inferred. See infra, § 605. —Boy resisting chastisement by his father is not provocation justify- ing the father in killing him, even though act done in “hot blood” raised by the resistance. Johnson v. State, 133 Ala. 38, 31 So. 951, 1902. —Master striking servant—A master having struck his servant, who was a lad, with one of his clogs, because he had not cleaned them, it was held to be only manslaughter, because the master could not, from the size of the instrument he had made use of, have had any intention to take away the boy’s life. Turn- er’s Case, cited in Comb. 407, 1 Ld. Raym. 148. —tTrespasser on land—Where A, finding a trespasser on his land, in the first transport of his passion beat him, and unluckily happened to kill him, it was held to be man- slanghter; but it must be understood that he beat him, not with mis- chievous intention, but merely to chastise for- the trespass, and to deter him from committing it again. Fost. C. L. 291; 1 Hale, P. C. 473. —Father striking assailant of son.—The prisoner’s son, having fought with another boy and been beaten, ran home to his father all bloody, and the father presently took a cudgel, ran three quarters of a mile, and struck the other boy upon the head, upon which he died. The case was held to be man- slaughter, on the ostensible ground of hot blood; but the authority is only supportable on the ground that the accident happened by a single stroke given in heat of blood, with 752 CRIMINAL LAW. [§ 587 § 587. Husband in hot blood killing adulterer, guilty of manslaughter. Whether a homicide committed by a man smarting under a sense of dishonor is murder or manslaughter depends upon the question whether the killing was in the first transport of passion or not. Where there has been time for cool- ing, which is to be determined by the temper and conditions of the defendant,’ the offense is murder ; if otherwise manslaughter. Thus, where a man finds another in the act of adultery with his wife, and kills him or her? in the first transport of passion, he is only guilty of manslaughter, and that of a nature entitled to the lowest degree of punishment,’ for the provocation is griev- ous, such as the law reasonably concludes cannot be borne in the first transport of passion. a cudgel, not likely to destroy, and that death did not immediately en- sue. Royley’s Case, 1 Hale, P. C. 453; Fost. C. L. 294, 295, 1685. —Yet such a palliation would not be allowed if the punishment was deliberately cruel. Infra, § 603. And hence in Virginia, where a man who had whipped a boy very severely was the next day killed by the boy’s father, who fell on him and beat him violently, cruelly, and con- tinuously with his fists, the killing was held murder. M’Whirt’s Case, 3 Gratt. 594, 46 Am. Dec. 196, 1846. lInfra, § 608; supra, § 419, foot- note 13. [Ga.J] Bone v. State, 86 Ga. 108, 12 S. E. 205, 1890. [Ky.] Scott v. Com. 94 Ky. 511, 42 Am. St. Rep. 371, 1893, 23 S. W. 219. [Mo.] State v. Raven, 115 Mo. 419, 22 S. W. 376, 1893. [N. C.] State v. McNeill, 92 N. C. 812, 1885. [Tex.] Franklin v. State, 30 Tex. App. 628, 18 S. W. 468, 1892. [Va.] Watson v. Com. 87 Va. ‘608, 13 8. E. 22, 1891. 2 Pearson’s Case, 2 Lewin, C. C. 216; Hooks v. State, 99 Ala. 166, 13 So. 767, 1893; Mays v. State, 88 Ga. 399, 14S. E. 560, 1891. 3|Eng.] Maddy’s Case, 1 Ventr. 158, T. Raym. 212; Reg. v. Kelly, 2 Car. & K. 814, 1848. [Ala.] Me- Neill v. State, 102 Ala. 121, 48 Am. St. Rep. 17, 15 So. 352, 1884; Gaf- ford v. State, 122 Ala. 54, 25 So. 10, 1898. [Ga.] Mays v. State, 88 But, as has been already shown, the Ga. 399, 14 S. E. 560, 1891. [Mich.] People v. Horton, 4 Mich. 67, 1856; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, 1862. [Mo.] State v. Holme, 54 Mo. 153, 1873. .[IN. Y.] Shufflin v. People, 62 N. Y. 229, 20 Am. Rep. 483, 1875. [N. C.] State v. John, 30 N. C. (8 Ired. L.) 330, 49 Am. Dec. 396, 1848; State v. Samuel, 48 N. C. (3 Jones, L.) 74, 64 Am. Dec. 596, 1855; State v. Neville, 51 N.C. (6 Jones, L.) 423, 1859; State v. Avery, 64 N. C. 609, 1870; State v. Harman, 78 N. C. 519, 1878. [Pa.] Com. v. Whitler, 2 Brewst. (Pa.) 388, 1868. See Cole’s Case, 1 Cent. L. J. 377, July 30, 1874; also notes in 64 Am. Dec. 598; 51 Am. Rep. 328; and 92 Am. St. Rep. 214. If adulterer not slain on the spot, and sufficient time has escaped for the passion to cool, the crime is not extenuated to manslaughter, but the slayer is guilty of murder. [Ind.] Sawyer v. State, 35 Ind. 83, 1871; Henning v. State, 106 Ind. 386, 55 Am. Rep. 756, 6 N. E. 803, 7 N. E. 4, 1885. [N. Y.] Shufflin v. People, 62 N. Y. 229, 20 Am. Rep. 483, 2 Cowen, Crim. Rep. 189, 1875. [N. C.] State v. John, 30 N. C. (8 Ired. L.) 330, 49 Am. Dec. 396, 1848; State v. Samuel, 48 N. C. (3 Jones, L.) 74, 64 Am. Dec. 596, 1855. As to cooling time, §§ 608, 1782. see infra, § 587] HOMICIDE. 753 killing of an adulterer deliberately, and upon revenge, is mur- der.* And evidence of the adultery is only admissible when the time of the husband’s discovery of it is brought so near to the homicide as not to allow space for cooling.» The same rea- son makes it murder for a man deliberately, after time for cooling, to kill his wife whom he has found in adultery, if the intent to take life be shown.® 41 Russell, Crimes, 525. [Ala.] McNeill v. State, 102 Ala. 121, 48 Am. St. Rep. 17, 15 So. 352, 1894. [Cal.] People v. Hurtado, 63 Cal. 288, 1883. [Del.] State v. Pratt, Houst. Crim. Rep. (Del.) 249, 1867. [Ga.] Turner v. State, 70 Ga. 767, 1883; Jackson v. State, 91 Ga. 271, 44 Am. St. Rep. 22, 18 S. E. 298, 1892; Farmer v. State, 91 Ga. 720, 18 8. E. 987, 1893; Wilkerson v. State, 91 Ga. 729, 44 Am. St. Rep. 63, 17 S. E. 990, 1893. [Ind.] Saw- yer v. State, 35 Ind. 80, 1871. [Mo.] State v. Holme, 54 Mo. 153, 1873; State v. France, 76 Mo. 681, 1882. [N. C.] State v. Samuel, 48 N. C. (3 Jones L.) 74, 64 Am. Dec. 596, 1855; State v. Neville, 51 N. C. (6 Jones, L.) 423, 1859; State v. Avery, 64 N. C. 608, 1870; State v. Har- man, 78 N. C. 515, 1878. [Tex.] Pickens v. State, 31 Tex. Crim. Rep. 554, 21 S. W. 362, 1893. 5 See [Ga.] Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630, 1860. [Tex.] Wood v. State, 31 Tex. Crim. Rep. 571, 21 S. W. 602, 1893. [Wis.] Traverse v. State, 61 Wis. 144, 20 N. W. 724, 1884. Compare: Infra, § 627. 6 Shufflin v. People, 62 N. Y. 229, 20 Am. Rep. 483, 1875. Adultery—Long knowledge of does not palliate—It was therefore right- ly held by the supreme court of Ind- iana, in 1871, that it is incompetent for the defendant to prove that for a long time he had been cognizant of the adulterous intercourse of his wife with the deceased. Sawyer v. State, 35 Ind. 80, 1871. “Tf,” said the court, “he had been thus for a long time apprised of her guilt in that respect, there had been an abundance of time for the ebullition of passion which might be supposed to arise on being first apprised of Crim. L. Vol. I.—48. The same distinctions are ap- the fact, to subside é It is sufficient to say that if the facta offered to be proven were established, they would in no way excuse or mit- igate the offense.” See also State v. John, 30 N. C. (8 Ired. L.) 339, 49 Am. Dec. 296, 1848; State v. Samuel, 56 N. C. (3 Jones, L.) 74, 64 Am. Dec. 596, 1855. —Admissible for the defendant to prove a conspiracy of late date to carry off his wife, which had only come to defendant’s notice imme- diately before the homicide, the de- ceased being in the conspiracy. Cheek v. State, 35 Ind. 492, 1871. See Reg. v. Kelly, 2 Car. & K. 814, 1848; State v. Holme, 54 Mo. 153, 1873. Spy on wife—Killing paramour.— A husband suspecting his wife of an adulterous intercourse with A em- ployed B to watch them. While so employed B killed A. It was held, that testimony that A had commit- ted adultery with the wife was not relevant in the trial of B for the murder of A, whatever might have been the law if the husband had killed him. People v. Horton, 4 Mich. 67, 1856. Wife abandoned by husband — Shooting on return in after years.— In « famous case tried in Philadel- phia, in 1816, the facts were that the deceased, after being married for some years, left the country; and A, his wife, not hearing from him for two years, married the defendant, acting under a Pennsylvania statute, which provided that persons so mar- rying should not be indictable for adultery, although, as it was after- ward held, the second marriage was not in other respects valid. The deceased returned, after a lapse of a year from the second marriage, and found A living with the defendant, 154 CRIMINAL LAW. [§ 587 plicable to the killing by a father of one attempting indecent liberties with his son.’ § 588. —Punishment, when in hot blood, for attack on chastity of persons under rightful protection of defendant. A man cannot, indeed, thus avenge the adultery of his para- mour,’ for the connection is not merely unauthorized by law, but in defiance of law. But where there are a legal right and a natural duty to protect, there an assault on the chastity of a ward (using this term in its largest sense) will be a sufficient provocation to make hot blood thus caused an element which will reduce the grade to manslaughter. That this is the law when a father is incensed at an unnatural offense attempted on his son, and acts in hot blood, we have already incidentally seen.” There is no sound reason why a similar allowance should not be made for a father’s or a brother's indignation at a sexual outrage at- tempted on a daughter or a sister. To impose a severer rule would be a departure from the analogies of the law, and would bring the court in conflict, not only with the jury, who under such circumstances would never convict of murder, but with the common sense of the community. Supposing the injury to female chastity to be avenged in hot blood by a brother, a father, or other person having a right to protect the person injured, the offense is but manslaughter. But a brother cannot, after upon which a quarrel arose, which was partially composed, but which ended in the defendant deliberately shooting the deceased at the house of A, This was held murder in the first degree. Com. v. Smith, 7 Smith, Laws (Pa.) App. 696, 2 Wheeler C. C. 79, 1816. —Ruling criticized—But the pro- priety of this ruling has since been gravely questioned, on the ground that Judge Rush, who presided, charged that no time is too short in which to form the intention to kill which is necessary to murder in the first degree. See comments of Chief J. Agnew, in Jones v. Com, 75 Pa. 403, 1 Am. Crim. Rep. 262, 1874. Another ground for exception is, that as the defendant acted under legal advice (mistaken though it were) that his marriage was valid, and that as he therefore, according to his own view, was at the time of the conflict maintaining his own rights in his own house, the malice necessary to constitute murder in the first degree was not imputable to him. Cooling time is a question of tem- perament, see infra, §§ 608, 627. 7In Reg. v. Fisher, 8 Car. & P. 182, 1837, the verdict was manslaughter, though the court charged that, if there was deliberation, the offense was murder. See also Jones v. State, 51 Ohio St. 331, 38 N. E. 79, 1894. 1Parker v. State, 31 Tex. 182, 1868. No provocation less than detection of parties in actual sexual inter- course is sufficient as matter of law. Hooks v. State, 99 Ala. 166, 13 So. 767, 1893. 2Reg. v. Fisher, 8 Car. & P. 182, 1837, supra, §§ 583, 587. § 590] HOMICIDE. 755 his sister has been apprehended in adultery, set up the provo- cation as a defense to an indictment against him for killing her paramour.’ § 589. Killing to redress a public wrong is murder. Persons laboring under a sense of wrong, public or private, real or imaginary, must apply to the law for redress. If there is opportunity to apply for such redress, he who supposes himself aggrieved is guilty of a criminal offense if he undertakes to inflict violent punishment; and he is guilty of murder if he deliberately and coolly kill the person by whom he supposes him- self aggrieved.’ In the highest of all injuries, that of adultery, this, as we have just seen, is the law; and a fortiori must this rule be applied in cases of injuries less crushing. That such grievances exist constitutes a defense that will not, as a bar to the indictment, be received by the court. Thus, on an indict- ment against a convict for the homicide of his keeper, evidence was properly held, by the supreme court of Connecticut, in 1870, to be inadmissible for the purpose of showing that the food supplied by the deceased to the defendant was tainted and un- wholesome.? So a supposed public grievance will not excuse a riot under- taken for its removal; * though, as has been seen, the excitement and tumult produced by a movement of this class may be put in evidence for the purpose of showing such a confusion of mind as prevented the participants from entertaining a deliberate de- sign to take life.* § 590. Bare trespass on property, not an adequate prov- ocation in case of intentional killing. A bare trespass on the land or other property of another, not his dwelling house, is not a sufficient provocation to warrant the owner in using a deadly weapon in its defense; and if he do, and with it kill the tres- passer, it will be murder, unless killing were actually necessary to prevent the trespass, and unless the trespass was a serious in- vasion of the owner’s rights. On the other hand, if the object 8 Lynch v. Com. 77 Pa. 205, 1 Am. 8 Supra, §§ 523-525. Crim. Rep. 283, 1874. 4See supra, § 514. 1See supra, § 525. Rockmore v. 1 [Eng.] Rex v. Scully, 1 Car. & P. State, 93 Ga. 123, 19 S. E. 32, 1894. 319, 28 Revised Rep. 780, 1824. 2State v. Wilson, 38 Conn. 126, [Ala.] Oliver v. State, 17 Ala. 588, 1871. See also Territory v. Drennan, 1850; Simpson v. State, 59 Ala, 1, 1 Mont, 41, 1868. 31 Am. Rep. 1, 1874, [Cal.] People 756 CRIMINAL LAW. [§ 590 of the violence be to drive off the trespasser, or even to chastise him, and no blows likely to produce grievous bodily harm be inflicted, the offense, if death ensue, is but manslaughter.? So far as concerns trespassers on personal property, it has been un- doubtedly held that such trespass does not lower the degree of homicide in case the trespasser is killed by the owner in an attempt by the latter to recover possession of the property. But this cannot be the law when the owner, his right to reclaim his goods being resisted, kills in hot blood, or in honest belief that this is necessary to defend his rights. In such case the offense cannot, on principle, be more than manslaughter.* And he is justified in using all necessary force to prevent valuables, either his own or under his charge, from being taken from him by robbery.* , § 591. Exercise of legal right, no just provocation. It should be remembered that the mere exercise of a legal right, v. Dunne, 80 Cal. 34, 21 Pac. 1130, 1889. [Del.] State v. Buchanan, Houst. Crim. Rep. (Del.) 79, 1859; State v. Woodward, Houst. Crim. Rep. (Del.) 455, 1874. [Ga.] Hayes v. State, 58 Ga. 35, 1877. [Ill.] Dav- ison v. People, 90 Ill. 221, 1878. [Ky.] Herald v. Com. 12 Ky. L. Rep. 439, 14 S. W. 491, 1890; Smith v. Com. 16 Ky. L. Rep. 112, 26 S. W. 583, 1894. [Mass.] Com. v. Drew, 4 Mass. 391, 1808. [Minn.] State v. Shippey, 10 Minn. 223, Gil. 178, 88 Am. Dec. 70, 1865. [Miss.] Mc- Daniel v. State, 8 Smedes & M. 401, 47 Am. Dec. 98, 1847. [N. C.] State v. Morgan, 25 N. C. (3 Ired. L.) 186, 38 Am. Dec. 714, 1842. [Pa.] Tiffany v. Com. 121 Pa. 165, 6 Am. St. Rep. 775, 15 Atl. 462, 1888. See also supra, § 130; §§ 601, 631. * Trespass will not justify homicide on plea of self-defense. People v. Dunne, 80 Cal. 34, 21 Pac. 1130, 1889; State v. Shippey, 10 Minn. 228, Gil. 178, 88 Am. Dec. 70, 1865. —Landowner may not provoke difficulty with trespasser in which he is obliged to kill the latter in self- defense. Tiffany v. Com. 121 Pa. infra, 165, 6 Am. St. Rep. 775, 15 Atl. 462, 1888. 2Fost. C. L. 291; 1 Hale, P. C. 473; Hawk. P. C. chap. 13, § 34; J. Kelyng, 3d ed. 180; Halloway’s Case, Cro. Car. 131; 1 Hawk. P. C. chap. 13, § 42. See 1 Hawk. P. C. by Cur- wood, §§ 33-36; Com. v. Drew, 4 Mass. 391, 1808; Kendall v. Com. 14 Ky. L. Rep. 15, 19 S. W. 173, 1892. Defendant, having been greatly an- noyed by persons trespassing upon his farm, repeatedly gave notice that he would shoot anyone who did so, and at length discharged a pistol at a person who was trespassing, and wounded him in the thigh, which led to erysipelas, and the man died; be- ing indicted for murder, the defend- ant was found guilty and executed. R. v. Moir, cited in Rex v. Price, 7 Car. & P. 178, 1835. 8Supra, §§ 130, et seq. Infra, §§ 631, 632. See State v. Donahoe, 78 Iowa, 486, 43 N. W. 297, 1889; Callicoatte v. State, —Tex. Crim. Rep. —, 22 8. W. 1041, 1893. 4Infra, §§ 631, 632. See [Eng.] Reg. v. Wesley, 1 Fost. & F. 528, 1859. [Nev.] State v. Levigne, 17 Nev. 435, 30 Pac. 1084, 1883. [N.C.] State v. Burwell, 63 N. C. 661, 1869. § 593] HOMICIDE, 757 no matter how offensive, is no such provocation as lowers the grade of homicide.! § 592. Spring gun illegal when placed on spot where innocent trespassers may wander. A landowner has no right to plant spring guns by which ordinary trespassers may be wounded ; and if he does so, and death ensues, he is responsible for the consequences. If such weapons be erected inconsider- ately, the killing of a mere heedless trespasser on an open coun- try is manslaughter; if the weapons be erected maliciously, the offense is murder.? But if the weapons be erected at the door of a place where valuables are kept, and to which, in the ordi- nary course of things, none but a burglar would penetrate, then the killing is excusable.* The distinction is this: the agency is one which a house owner is entitled to use in such a way as to keep off burglars and other felons. But the fact that he is so entitled does not protect him from an indictment for nui- sance in case the right be abused by placing the trap where travelers or even trespassers would be exposed to injury, nor from an indictment for homicide in case any such traveler or trespasser be killed. § 593. For master of house knowingly to kill visitor is murder. in future sections.” the following propositions: 1See [Eng.] Rex v. Longden, Russ. & R. C. C. 228. [Nev.] State v. Lawry, 4 Nev. 161, 1868. [N. C.] State v. Craton, 28 N. C. (6 Ired. L.) 164, 1845. lInfra, § 638. [Eng.] Barnes v. Ward, 9 C. B. 392, 421, 2 Car. & K. 661, 19 L. J. C. P. N..S. 195, 14 Jur. 834, 1850; Lynch v. Nurdin, 1 Q. B. 37, 4 Perry & D. 672, 10 L. J. Q. B. N. S. 73, 5 Jur. 797; Hardcastle v. South Yorkshire R. Co. 4 Hurlst. & N. 67, 28 L. J. Exch. N. S. 189, 5 Jur. N. S. 150, 7 Week. Rep. 326, 1859; Jordin v. Crump, 8 Mees. & W. 782, 11 L. J. Exch. N.S. 74, 5 Jur. 1113, 1841. [Ala.] Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1, 1874. [Conn.] State v. Moore, 31 Conn. 479, 83 Am. Dec. 159, 1863. [Ky.] Gray v. Combs, 7 J. J. Marsh. 478, 1832. The law as to defense of dwelling house is discussed In the present connection we may state Compare: With Barnes v. Ward, 9 C. B. 392, 421, 2 Car. & K. 661, 19 L. J. C. P. N. 8S. 195, 14 Jur. 384, 1850; Stone v. Jackson, 16 C. B. 199; Holmes v. North Eastern R. Co. L. R. 4 Exch. 254, 1869; Inder- maur v. Dames, L. R. 1 C. P. 274, 1866; Sioux City & P. R. Co. v. Stout, 17 Wall. 657, 20 L. ed. 745, 1873; Bird v. Holbrook, 4 Bing. 628, 1 Moore & P. 607, 6 L. J. C. P. 146, 29 Revised Rep. 657, 25 Eng. Rul. Cas. 97, cited in Lynch v. Nurdin, 1 Q. B. 37; Wootton v. Dawkins, 2 C. B. N.S. 412, 1857. 2Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1, 1877. See Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392, 3 Am. Crim. Rep. 6, 1877. 3See infra, § 638. 1See infra, §§ 637, 638. CRIMINAL LAW. [§ 593 158 1. For the master of a house to kill, in cool blood, a person seeking entrance into the house, is murder, unless the person killing, according to his own lights, honestly, and without negli- gence, believes that the person entering the house is attempting to perpetrate a felony, and that killing is the only way to pre- vent the felony ; in which case there should be an acquittal. § 594. —When such killing is in hot blood it is man- slaughter. 2. For the master of a house to kill, in hot blood, a person forcing his way into the house, is manslaughter, un- less the person killing, according to his own lights, honestly, and without negligence, believes that the person entering the house is seeking to perpetrate a felony, and that killing is the only way to prevent the felony; in which case there should be an acquittal. § 595. —When such killing is in self-defense it is ex- cusable. 3. When a person in danger of his life takes refuge in his own house, then, the attack being unlawful, he is excused for taking his assailant’s life; and he may assemble his friends for the same purpose, who stand, as to this defense, in the same position as himself.’ § 596. Manslaughter to kill master of house expelling defendant with unnecessary violence. As a man has a right to order another to leave his house, but has no right to put him out by force until gentler means fail, if he attempts to use violence at the outset and is slain, it will be manslaughter in the slayer if there be no previous malice.’ If the owner of the house in expelling kill in hot blood without necessity an intruder, this is manslaughter.* lInfra, § 631. L. 224, 1857. [N. Y.] People v. 1 As authority for these points, see infra, §§ 637, 638, and Levett’s Case, Cro. Car. 438; 1 Hale, P. C. 48, 474, cited supra, § 55. [Ala.] Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282, 1877. [Ark.] McCoy v. State, 8 Ark. 451, 1848. [Ga.] Lyon v. State, 22 Ga. 399, 1857. [Ill] Greschia v. People, 53 Il]. 295, 1870. [Mass.] Com. v. Clark, 2 Met. 23, 1840. [Mich.] Pond v. People, 8 Mich. 150, 1860; Patten v. People, 18 Mich. 314, 100 Am. Dec. 173, 1869. [Mont.] Territory v. Drennan, 1 Mont. 41, 1868. [N. J.] State v. Ross, 26 N. J. Caryl, 3 Park. Crim. Rep. 326, 1857. [S. C.J] State v. Lazarus, 1 Mill. Const. 34, 1817. [Tex.] Hinton v: State, 24 Tex. 454, 1859. [Vt] State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200, 1873. [Wis.] State v. Martin, 30 Wis. 216, 11 Am. Rep. 567, 1872. See also an article in 10 Alb. L. J. 241, for October 17, 1874. 1[Ark.] McCoy v. State, 8 Ark. 451, 1848. [Ga.] Lyon v. State, 22 Ga. 399, 1857. [Tex.] Hinton v. State, 24 Tex. 454, 1859. 2 See Brinkley v. State, 89 Ala, 34, § 600] HOMICIDE. 759 § 597. Killing person having a legal right to the use of aroom is murder. If A stands with a weapon in a doorway of a room, wrongfully to prevent B from leaving it and others from entering, and C, who has a right to the room, struggles with A to get his weapon from him, upon which D, a comrade of A, stabs C, this is murder in D if C dies.? § 598. Where the parties are equal, a blow is sufficient provocation. Any assault, in general, made with violence or circumstances of indignity upon a man’s person, by one not greatly his inferior in strength, if it be resented immediately by the death of the aggressor, and it appear that the party acted in the heat of blood upon that provocation, will reduce the crime to manslaughter. § 599. In sudden quarrels, immaterial who struck the first blow. In a sudden and equal quarrel, when both parties strike in the heat of blood, it is immaterial by whom the first blow is struck.’ Thus, if A uses provoking language or be- havior toward B and B strikes him, upon which a combat en- sues, in which A is killed, this is held to be manslaughter; for it wags a sudden affray, and they fought upon equal terms; and in such combats, upon sudden quarrels, it matters not who gave the first blow.? § 600. —But the assault must have been calculated to arouse the passions. An unintentional and trivial assault is no palliaticn.! Thus in a case in South Carolina, where it was argued by the defendant’s counsel that the passions of the defendant were excited by an unintended jostle of the prisoner or his wife by the deceased, the position was said to be equally unsupported by proof, and unavailing if true. “In a city like Charleston, where many persons are constantly passing until a late hour of the night, the accidental impinging of one upon another in the dark would not authorize such a murderous attack 18 Am. St. Rep. 87, 8 So. 22, 1890. v. State, 8 Tex. App. 142, 1880. State v. Murphy, 61 Me. 56, 1870. Supra, § 582, and cases hereafter See infra, § 631. cited. 1 Rex v. Longden, 1 Russ. & R. C. C. 228, 1818. 1 Rex v. Thomas, 7 Car. & P. 817, 1837; Rex v. Taylor, 2 Lewin, C. C. 217; Rex v. Snow, 1 Leach, C. L. 151, 1 East, 244, 1776; Rex v. Ran- kin, Russ. & R. C. C. 43, 1802; Hill 1Supra, § 585. 2¥Fost. C. L. 295; 1 Hale, P. C. 456; Rex v. Ayes, Russ. & R. C. C. 166, 1880. See Petty v. Com. 12 Ky. L. Rep. 919, 15 S. W. 1059, 1891. 1 Ibid. CRIMINAL LAW. [§ 600 760 upon him. Such an act of itself would be a sure indication of a depraved and wicked heart void of all social duty, and fatally bent on mischief.” ® The assault must be of a character from which hot blood might be expected to ensue.® § 601. Deliberate and cruel use of superior strength im- plies malice. Though an assault made with violence or cir- cumstances of indignity upon a man’s person, and resented im- mediately by the latter acting in the heat of blood upon that provocation, he killing the aggressor, will reduce the crime to manslaughter, yet it must by no means be understood that the crime will be so extenuated by any trivial provocation which in point of law may amount to an assault; nor in all cases even by a blow.’ Violent acts of resentment, bearing no proportion to the provocation or insult, particularly where there is a decided preponderance of strength on the part of the party killing, and where the punishment is deliberate and cruel, constitute murder, if death ensue from the attack.’ 2 State v. Tooky, 2 Rice’s Dig. 104. 83 Nichols v. Com. 11 Bush, 575, 1876. 1Rex v. Lynch, 5 Car. & P. 324, 1832. 2 [Eng.] Rex v. Keate, Comb. 408; Rex v. Snow, 1 Leach, C. L. 151, 1 East, 244, 1776; Royley’s Case, 12 Coke, 87, 1 Hale, P. C. 4538; Rex v. Thomas, 7 Car. & P. 817, 1837; Rex v. Shaw, 6 Car. & P. 872, 1834; Rex v. Lynch, 5 Car. & P. 324, 1832; See also Fost. C. L. 294; Cro. Jac. 296; Godb. 182; Rex v. Willoughby, 1 East, P. C. 288, 1791. [Ala.] Ex parte Nettles, 58 Ala. 268, 1877. [Cal.] Guffee v. State, 8 Tex. App. 187, 1880; People v. Perdue, 49 Cal. 425, 1874. [Fla.] Holland v. State, 12 Fla. 117, 1868. [Ky.] Colley v. Com, 11 Ky. L. Rep. 346, 12 8S. W. 132, 1889. [Mo.] McDermott v. State, 89 Ind. 187, 1881; State v. Christian, 66 Mo, 138, 1877. [N. C.] State v. Craton, 28 N. C. (6 Ired, L.) 164, 1845; State v. Hildreth, 31 N. C. (9 Ired. L.) 429, 51 Am. Dec. 364, 1849; State v. Hargett, 65 N. C. 669, 1871; State v. Chavis, 80 N, C. 353, 1879; State v. Boon, 82 N. C. 637, 1880. [Va.] McWhirt’s Case, 3 Gratt. 594, 46 Am. Dec. 196, 1846. See also authorities hereafter cited. This distinction applies to the case already cited, where the keeper of a park, finding a boy stealing wood in his master’s ground, tied him to a horse’s tail and beat him, upon which the horse running away, the boy was killed; the case being held murder. Supra, § 590. There being an affray in the street, one Stedman, a foot soldier, ran hastily toward the combatants. A woman, seeing him run in that man- ner, cried out, “You will not murder the man, will you?” Stedman re- plied, “What is that to you, you bitch?” The woman thereupon gave him a box on the ear, and Stedman struck her on the breast with the pommel of his sword. The woman then fled; and Stedman, pursuing her, stabbed her in the back. It seemed to Holt, C. J., that this was murder, a single box on the ear from a woman not being a sufficient prov- ocation to kill in such a manner, after Stedman had given her a blow in return for the box on the ear; and it was proposed to have the matter found specially; but it afterward ap- pearing, in the progress of the trial, § 603] HOMICIDE. 761 § 602. Malice implied from concealed weapon. If, after an interchange of blows on equal terms, one of the parties, on a sudden, and without any such intention at the commence- ment of the affray, snatch up a deadly weapon and kill the other party with it, such killing will be only manslaughter.? But if a party, under color of fighting upon equal terms, used from the beginning of the contest a deadly weapon without the knowl- edge of the other party, and kill the other party with such weap- on; or if at the beginning of the contest he prepare a deadly weapon, so as to have the power of using it in some part of the contest, and use it accordingly in the course of the combat, and kill the other party with the weapon,—the killing in both these cases will be murder.? § 603. Where the mortal blow is deliberately given after the deceased is helpless, offense is murder. Where a party, after he has got the better of the other, holds him prostrate and defenseless, the reception of a prior blow will not reduce the grade to manslaughter. This proposition, in fact, is a corollary of that which makes a blow no mitigating provocation when that the woman struck the soldier in the face with an iron patten, and drew a great deal of blood, it was ruled clearly to be no more than manslaughter. The smart of the man’s wound, and the effusion of blood, might possibly have kept his indignation boiling to the moment of the attack. Stedman’s Case. Fost. C. L. 292, 1704. But even on this evidence, as it thus stands, the case has been very much doubted. Thus, in Pennsyl- vania, Gibson, C. J., said: “If a man should kill a woman or child for a slight blow, the provocation would be no justification; and I very much question whether any blow inflicted by a wife on a husband would bring the killing of her below murder. Under this view of the law I have always doubted Stedman’s Case.” Com. v. Mosler, 4 Pa. 264, 1846; Fitzgerald v. State, 15 Lea, 99, 1885. An assault with a cane may be a provocation which may lower the degree; see Rex v. Tranter, 1 Strange, 499, 1768; supra, § 530. Cf. definition in § 203 of New York Penal Code of 1882. 1 [Eng.] R. v. Anderson, 1 Russell, Crimes, 731, 1816; Rex v. Kessel, 1 Car. & P. 437, 1824. [Ala.] Judge v. State, 58 Ala. 406, 29 Am. Rep. 757, 1878. [Dak.] Territory v. Ban- nigan, 1 Dak. 451, 46 N. W. 597, 1877. [Ill.] Davis v. People, 88 Ill. 350, 1888. [Miss.] Preston v. State, 25 Miss. 383, 1853. [Mo.] State v. Christian, 66 Mo. 138, 1877; State v. Alexander, 66 Mo. 148, 1877. [N. C.] State v. Ramsey, 50 N. C. (5 Jones, L.) 195, 1857. 2 [Eng.] R. v. Anderson, 1 Russell, Crimes, 9th Am. ed. 731, 1816; Rex v. Taylor, 5 Burr. 2793; Reg.: v. Smith, 8 Car. & P. 160, 1837; Mack- lin’s Case, 2 Lewin, C. C. 225. [Ala.] Seales v. State, 96 Ala. 69, 11 So. 121, 1892. [Tex.] Habel v. State, 28 Tex. App. 588, 13 S. W. 1001, 1890. Sudden use of penknife—That this is not the case with the sudden use of a pen-knife, see Gatlin v. State, 5 Tex. App. 531, 1879. As to inferences from weapon, see Wharton, Crim. Ev. §§ 734, 764, et seq.; 6 Ene. Ev. p. 531. 762 CRIMINAL LAW. [§ 603 there is a manifest disparity of strength between the parties. For even where no such disparity at first exists, the principle holds good when by the result of the conflict one party is disarmed, or becomes otherwise helpless. § 604. Case is murder where the attack is sought by the party killing. The plea of provocation will not avail where it appears that the provocation was sought for and induced by the act of the party in order to afford him a pretense for wreak- ing his malice; and even where there may have been previous struggling or blows, such defense will not be sustained where there is evidence of prior malice." And where a combatant en- ters into a contest dangerously armed and fights under an undue advantage, though mutual blows pass, it is not manslaughter, but murder, if he slay his adversary pursuant to a previously formed design, either general or special, to use his weapon in an emergency.” 1Rex v. Shaw, 6 Car. & P. 372, 1832. See Territory v. Bannigan, 1 Dak. 451, 46 N. W. 597, 1877. _As to burden of proot, see Whart- on, Crim. Ev. § 334. 1 Maddy’s Case, 1 Vent. 159, T. Raym. 212; 1 Hale, P. C. 452; 1 Russell, Crimes, 9th Am. ed. 719, 790. [Eng.] Rex v. Oneby, 2 Ld. Raym. 1490, 1725; Reg. v. Smith, 8 Car. & P. 160, 1837; Rex v. Mason, 1 East, P. C. 239, 1756. [Ark.] At- kins v. State, 16 Ark. 568, 1855. [Cal.] People v. Stonecifer, 6 Cal. 405, 1856; People v. O’Brien, 78 Cal. 41, 20 Pac. 359, 1888. [Ga.] Lyon v. State, 22 Ga. 399, 1856. [Iowa] State v. Neeley, 20 lowa, 108, 1866. [Kan.] State v. Rogers, 18 Kan. 78, 26 Am. Rep. 754, 1877. [Wis.] Clif- ford v, State, 58 Wis. 477, 17 N. W. 304, 1878. [Mo.] State v. Green, 37 Mo. 466. 1866; State v. Linney, 52 Mo. 40, 1878; State v. Underwooa, 57 Mo. 40, 1 Am. Crim. Rep. 251, 1874; State v. Christian, 66 Mo. 138, 1877; Stave v. Hardy, 95 Mo. 455, 8 8S. W. 416, 1888; State v. Stiltz, 97 Mo. 20, 10 S. W. 614, 1888. [N. C.J] State v. Johnson, 23 N. C. (1 Ired. L.) 354, 35 Am. Dec. 742, 1840; State v. Lane, 26 N. C. (4 Tred. L.) 118, 1848; State v. Ta- cha-na-tah, 64 N. C. 614, 1869; State A party has in this way no right, even on the v, Matthews, 80 N. C. 417, 1879. [Ohio] Stewart v. State, 1 Olio St. 66, 1853; State v. Stoffer, 15 Ohio St. 47, 86 Am. Dec. 470, 1864. [S.C.] State v. Ferguson, 2 Hill, L. 619, 27 Am. Dec. 412, 1835. [Tex.] McCoy v. State, 25 Tex. 38, 78 Am. Dec. 520, 1860; Murray v. State, 36 Tex. 642, 1871; King v. State, 13 Tex. App. 277, 1882; Jackson v. State, 28 Tex. App. 108, 12 S. W. 501, 1889. [Va.] Vaiden v. Com. 12 Gratt. 717, 1855; Bristow v. Com. 15 Gratt. 634, 1859; Slaughter v. Com. 11 Leigh, 681, 37 Am. Dec. 638, 1841. As to burden of proof, see Whart- on, Crim. Ev. § 334. 2 [Eng.] Rex v. Thomas, 7 Car. & P, 817, 1887. [Ala.] Ex parte Net- tles, 58 Ala. 268, 1877. [N. C.] State v. Craton, 28 N.C. (6 Ired. L.) 164, 1845. See also Stephen, Digest Crim. Law 5th ed. arts. 245, et seq. Deliberately bringing on difficulty, having made preparation therefor, with intention to kill should de- ceased resent the insult, a homicide will be murder. [Ala.] Wills v. State, 73 Ala. 362, 1882; Brown vy. State, 83 Ala. 33, 3 Am. St. Rep. 685, 3 So. 857, 1887; Cleveland v. State, 86 Ala. 1, 5 So. 426, 1888; Gibson v. State, 89 Ala. 121, 18 Am. § 605] MOMICIDE. 763 plea of self-defense, to take it upon himself to execute private vengeance.® § 605. Question of continuance of old grudge, one of fact. It has been said that when the existence of deliberate malice in the slayer is once ascertained, its continuance, down to the perpetration of the meditated act, must be presumed, unless there is evidence to repel it; and that there must be some evidence to show that the wicked purpose had been abandoned." If by this we are to understand that the defendant is in such case to prove by witnesses that he had abandoned his old grudge, the position cannot be sustained. It is otherwise, however, if we understand the conclusion to be that the presumption (which is exclusively one of fact) of the continuance of the old grudge may be met and overcome by the presumption of its abandon- ment, which may be drawn from the lapse of time, from the circumstances of the encounter, and from the character of the parties. Thus it has been properly held that if a person, upon St. Rep. 96, 8 So. 98, 1889; Craw- ford v. State, 112 Ala. 1, 21 So. 28 S. C. 29, 4 S. E. 799, 1887; State v. Trammell, 40 S. C. 331, 42 Am. 214, 1895. [Cal] People v. Hunt, 59 Cal. 430, 1881; People v. Conk- ling, 111 Cal. 619, 44 Pac. 314, 1896. [Colo.] Moore v. People, 26 Colo. 218, 57 Pac. 857, 1899. [Del.] State v. Warren, 1 Marv. (Del.) 487, 41 Atl, 190, 1893. [Ill.] Adams v. Peo- ple, 47 Ill. 376, 1868; Wilson v. People, 94 Ill. 299, 1880. [Ind.] Story v. State, 99 Ind. 413, 1884; Burnett v. State, 100 Ind. 171, 1884; Deal v. State, 140 Ind. 354, 39 N. E. 930, 1894. [Iowa] State v. Neeley, 20 Iowa, 108, 1865; State v. Ben- ham, 23 Iowa, 154, 92 Am. Dec. 417, 1867. [Kan.] State v. Rogers, 18 Kan. 78, 26 Am. Rep. 754, 1877. [La.] State v. Hopkins, 50 La. Ann. 1171, 24 So. 188, 1898. [Mich.] Peo- ple v. Lennon, 71 Mich. 298, 15 Am. St. Rep. 259, 38 N. W. 871, 1888. [Minn.] State v. Scott, 41 Minn. 365, 48 N. W. 62, 1889. [Mo.] State v. Starr, 38 Mo. 270, 1866. [N. Y.] People v. McLeod, 1 Hill, 377, 25 Wend. 488, 37 Am. Dec. 228, 1841. [Ohio] Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470, 1864. [S. C.J] State v. Beckham, 24S. C. 284, 1885; State v. Jacobs, St. Rep. 874, 18 S. E. 940, 1894. State v. Cobb, 65 S: C. 324, 95 Am. St. Rep. 801, 43 S. E. 654, 13 Am. Crim, Rep. 262, 1903. [Tenn.] Rog- ers v, State, 95 Tenn. 448, 33 S. W. 563, 1895. [Tex.] Allen v. State, 24 Tex. App. 216, 6 S. W. 187, 1887; Thumm v. State, 24 Tex. App. 667, 7 S. W. 236, 1888; Levy v. State, 28 Tex. App. 203, 19 Am. St. Rep. 826, 12 S. W. 596, 1889; Carter v. State, 30 Tex. App. 551, 28 Am. St. Rep. 944, 17 S. W. 1102, 1891. See note 74 Am. St. Rep. 731-740. S8Ibid. Infra, §§ 618, 627. For a laxer view, see Ex parte Wray, 30 Miss. 673, 1859; Moore v. State, 36 Miss. 137, 1864. 1Supra, §§ 148, 525; Crane v. Com. 12 Ky. L. Rep. 161, 138 S. W. 1079, 1890; State v. Johnson, 23 N. C. (1 Ired. L.) 354, 35 Am. Dec. 742, 1840; State v. Tilly, 25 N. C. (3 Ired. L.) 424, 1842. 2Supra, § 148. See Wharton, Crim. Ev. § 735. [Ark.] Fitzpatrick v. State, 37 Ark. 238, 1880. [Cal.] People v. Thomson, 92 Cal. 506, 88 Pac. 589, 1891. [Ga.] Freeman v. State, 70 Ga. 736, 1882. [Mo.] State 764 CRIMINAL LAW. [§ 605 meeting unexpectedly his adversary, who had intercepted him upon his lawful road and in his lawful pursuit, accept the fight where he might have avoided it by passing on, the provocation being sudden and unexpected, the jury may presume that the killing was not upon the old grudge, but that it was upon the insult given by stopping him on the way.* And after a recon- ciliation, the motive will be presumed to be the recent provoca- tion, not the old grudge.* On the other hand, if one seek another, and enter into a fight with him, with the purpose, under the pretense of fighting, to stab him; if a homicide ensue it will be murder in the assail- ant, no matter what provocation was apparently then given, or how high the assailant’s passion rose during the combat.® Thus, if A from previous angry feelings, on meeting with B, strike him with with a whip, with the view of inducing B to draw a pistol, or, believing he will do so in resentment of the insult, determining if B do so to shoot B as soon as he draw, and B draw, and A immediately shoot and kill B, this is murder.® But if there had been a quarrel between A and B and a reconcili- ation between them, and afterward, upon a new and sudden falling out, A-kill B, this is not murder; though if it appear that the reconciliation were but pretended or counterfeit, and that the hurt done were upon the score of the old malice, a con- viction of murder will be sustained.” v. Dettmer, 124 Mo. 426, 27 S. W. Brazzil v. State, 28 Tex. App. 584, 1117, 1894. [N. C.] State v. Savage, 78 N. C. 520, 1878; State v. Barn- well, 80 N. C. 466, 1879. [Pa.] Mur- ray v. Com. 79 Pa. 311, 1875. 3[Mich.] Wellar v. People, 30 Mich. 16, 1 Am. Crim. Rep. 276, 1874. [Miss.] Cannon v. State, 57 Miss. 147, 1879; Pickens v. State, 61 Miss. 52, 1881. [N. C.] State v. Ta-cha-na-tah, 64 N. C. 614, 1870. [Tenn.] Copeland v. State, 7 Humph. 479, 1846. As to old grudge, see Wharton, Crim. Ev. § 784. As to continuance of malice, see supra, § 148. 4 [Iowa] State v. Perigo, 80 Iowa, 37, 45 N. W. 399, 1890. [Mo.] State v. Crabtree, 111 Mo, 136, 20 8S. W. 7, 1892. [N. C.] State v. Barnwell, 80 N. C. 466, 1879. [Tex.] 13 S. W. 1006, 1890. 51 Hale, P. C. 451. [Eng.] Reg. v. Smith, 8 Car. & P. 160, 1837; [Miss.] Helm v. State, 66 Miss. 537, 6 So. 322, 1889. [Mo.] State v. Harris, 59 Mo. 550, 1875. [N. C.] State v. Lane, 26 N. C. (4 Ired L.) 113, 1843. [S. C.] State v. Fergu- son, 2 Hill, L. 619, 27 Am. Dec. 412, 1837. [Va.] Mitchell v. Com. 33 Gratt. 872, 1879. 6State v. Martin, 24 N. ©. (2 Ired. L.) 101, 1841. 7 Supra, § 148; 1 Hale, P. ©. 451; Mason’s Case, Fost. C. L. 182, 1756. Provocation—Where a_ sufficient provocation at the time to extenuate the homicide is proved, it is not competent for the prosecution, in order to show that the act of killing was not by reason of the immediate § 607] HOMICIDE, 765 § 606. Malicious killing in another’s quarrel is murder, but if in hot blood, is manslaughter. When one person in- terferes in the quarrel of others, and kills one of the participants from malice, and not from negligence or passion, the party killing is guilty of murder. Thus, if a master maliciously in- tending to kill another take his servants with him, without ac- quainting them with his purpose, and meet his adversary and fight with him, and the servants, seeing their master engaged, kill the other, they would be guilty of manslaughter only, but the master of murder. If they take part coolly and knowingly in the killing, it would be murder in all.? § 607. Hot blood extenuates a killing in proportion to the closeness of the relationship of the party interfering. A distinction may be taken between the interference of servants and friends, and that of a mere stranger, and there may be cases in which a jury would properly infer hot blood in the interfer- ence of a friend or servant, when there could be no such infer- ence as to the interference of a stranger. A stranger may inter- fere from pity or sense of fairness; a friend or servant, in addi- tion to such motives, from affection or duty. At the same time, it has been properly observed that the nearer or more remote connection of the parties with each other seems to be more a matter of observation for the jury as to the probable force of the provocation, and the motive which induced the interference, than as furnishing any precise rule of law grounded on such a distinction." Hot blood is naturally to be expected in the case of a friend taking the side of a friend who is apparently maltreated; and provocation, but of a pre-existing malice, to prove that a year before the prisoner declared his intention to kill two or three men, it being admitted that the deceased was not one of the men referred to. State v. Barfield, 29 N. C. (7 Ired. L.) 299, 1847. 11 Hawk. P. C. ¢. 13, s. 55; State vy. Roberts, 8 N. C. (1 Hawks) 349, 9 Am. Dec. 648, 1822; Thompson v. State, 25 Ala. 41, 1854; Frank v. State, 27 Ala. 38, 1855. See 1 Rus- sell, Crimes, 590, 592. And see State v. Talbott, 73 Mo. 347. As to crimes collateral to a con- spiracy, see supra, § 252. But see State v. Howard, 112 N. ©. 859, 17 S. E. 166, 1893. Son assisting father.—See State v. Brittain, 89 N. C. 481, 1883; Mealer v. State, 32 Tex. Crim. Rep. 102, 22 8. W. 142, 1893. 1 Supra, § 588; infra, §§ 621, 625; Irby v. State, 32 Ga. 496, 1861. Insulting words—Under statute, as has already been seen, insulting words, addressed to a female rela- tive, may be a provocation which, if acted on in hot blood, may reduce a homicide to manslaughter. Peo- ple v. Turley, 50 Cal. 469, 1875; Kanes v. State, 10 Tex. App. 421, 1881. Supra, § 582. 766 CRIMINAL LAW. [§ 607 hence if a third person should take up the cause of a friend who has been worsted in a fight, and should kill that friend’s an- tagonist, the killing would, it seems, be manslaughter, and this though the party assisted might have been guilty of murder if the killing? had been by him; and it is, at the most, manslaugh- ter, for a brother who sees the slaying of his brother to kill in hot blood the slayer.® ; § 608. Cooling time dependent on _ circumstances. Whether there has been cooling time is eminently a question of fact, varying with the particular case and with the condition of the party.’ There are some provocations which, with persons of even temperament, lose their power in a few moments; while there are others which rankle in the breast for days and even weeks, producing temporary insanity. Men’s tempera- ments, also, vary greatly as to the duration of hot blood; and it must be remembered that we must determine the question of malice in each case, not by the standard of an ideal ‘“reason- able man,” but by that of the party to whom the malice is im- puted. A man may be chargeable with negligence in not duly weighing circumstances which would have checked his passion, or which, when his passion was aroused, would have caused it more speedily to subside. But he is not chargeable with malice when he was acting wildly and in hot blood. Hence, whether there has been cooling time, so as to impute to the defendant malice, is to be decided not by an absolute rule, but by the con- ditions of each case.” 2Supra, § 253. See [Eng.] Reg. v. Harrington, 10 Cox, ©. C. 370, 30 1866. [Mich.] People v. Carter, 96 Mich, 588, 56 N, W. 79, 1893. [Mo.] State v. Hermann, 117 Mo. 629, 23 S. W. 1071, 9 Am. Crim. Rep. 3138, 1893 (murder in fourth degree). [N. C.] State v. Roberts, 8 N. C. (1 Hawks) 349, 9 Am. Dec. 643, 1821. [Tenn.] Tharpe v. State, 13 Lea, 138, 1884. [Tex.] Branch v. State, 15 Tex. App. 96, 1883. 3 Whatley v. State, 91 Ala. 108, 9 So, 236, 1891; Guffee v. State, 8 Tex. App. 187, 1880; Butler v. State, 33 Tex. Crim. Rep. 232, 26 S. W. 201, 1894. 1See as to presumptions, supra, § 148. And see Small v. Com. 91 Pa. 4, 1879. ®Supra, §§ 148, 149; Wharton, Homicide, §§ 451, et seq.; 1 Hawk. P. C. chap. 13, §§ 22, 29; 4 bl. Com. 191; 3 Co. Inst. 51; 1 Bulstr. 86. [Eng.] Morley’s Case, 7 St. Tr. 421, J. Kelyng, 3d ed. 88, Cromp. 23, Sid. 277. Rex v. Oneby, 2 Strange, 766, 2 Ld. Raym. 1485, 1731. See Rex v. Taylor, 5 Burr. 2793; Rex v. Kessel, 1 Car. & P. 437, 1824; Rex v. Lynch, 5 Car. & P. 324, 1832; Rex v. Hayward, 6 Car. & P. 157, 1833; Rex v. Beeson, 7 Car. & P. 142, 1835; Reg. v. Fisher, 8 Car. & P, 182, 1837; Reg. v. Eagle, 2 Fost. & F. 827, 1862; Reg. v. Sel- ten, 11 Cox, C. C, 674, 1871. [Ala.] § 610} HOMICIDE. 767 § 609. Restraint or coercion is adequate provocation. It has been already shown that an illegal attempt to restrain a man’s liberty, even under color of legal process, is such provoca- tion as to reduce the offense to manslaughter. This holds where a man is injuriously restrained of his liberty, as where a cred- itor stood at the door of his debtor with a drawn sword, to pre- vent him from escaping while he sent for a bailiff to arrest him ; or where a sergeant put a common soldier under arrest, who thereupon killed the sergeant with a sword, and upon the trial the articles of war were not produced, nor any evidence given of the usage of the army, and so no authority in the sergeant appeared. restraint.? § 610. Killing in duel is murder. The same distinctions apply to all cases of illegal Cool and deliberate homicide in a duel is murder in the guilty party, and this, though the latter had received the provocation of a blow,? or had Cates v. State, 50 Ala. 166, 1874; Judge v. State, 58 Ala. 405, 1878; MeNeill v. State, 102 Ala. 121, 48 Am. St. Rep. 17, 15 So. 352, 1894. [Fla.] Gladden v. State, 12 Fla. 562, 1868. [Ga.] Gann v. State, 20 Ga. 67, 1860. [Ind.] Creek v. State, 24 Ind. 151, 1865; Ex parte Moore, 30 Ind. 197, 1869; Murphy v. State, 31 Ind. 511, 1869. [Iowa] State v. Decklotts, 19 Iowa, 447, 1865; State v. Spangler, 40 Iowa, 365, 1875. [Mich.] People v. Mortimer, 48 Mich. 37, 11 N. W. 776, 1882. [Minn.] State v. Jones, 20 Mo. 58, 1875. [Miss.] Preston v. State, 25 Miss. 383, 1854. [IN. Y.] People v. Sullivan, 7 N. Y. 396, 1852; Mc- Cann v. People, 6 Park. Crim. Rep. 629, 1860. [N. C.] State v. Hill, 20 N. C. 629 (4 Dev. & Bl. 491), 34 Am. Dec. 396, 1839; State v. Johnson, 48 N. C. (3 Jones, L.) 266, 1855; State v. Moore, 69 N. C. 267, 1873. (Pa.) 289, 1821; Com. v. Lenox, 3 Brewst. (Pa.) 249, 1868; Kilpatrick v. Com. 31 Pa. 198, 1858, 3 Phila. 237, 1858. [S. C.] State v. Mce- Cants, 1 Speers, L. 384, 1843. [Tex.] Johnson v. State, 30 Tex. 748, 1868; Mackey v. State, 13 Tex. App. 360, [Pa.] Com. v. Green, 1 Ashm. 1883. [Va.] M’Whirt’s Case, 3 Gratt. 594, 46 Am. Dec. 196, 1846. As differing from text, State v. Sizemore, 52 N. C. (7 Jones, L.) 206, 1859; State v. Moore, 69 N. C. 267, 1873. As to burden of proof, see Whar- ton, Crim. Ev. § 334 Interesting collection of cases on this point, see 1 Townsend, Modern State Trials, 151, et seq. As to cooling time in riots, see supra, § 608. 1Buckner’s Case, Styler, 467; Withers’s Case, 1 East, P. C. 238, 1784; Rex v. Curvan, 1 Moody, C. C. 132, 1826; Rex v. Willoughby, 1 East, P. C. 288, 1791. 2Goodman v. State, 4 Tex. App. 349, 1878. 1[Eng.] Reg. v. Cuddy, 1 Car. & K. 210, 1843; Reg. v. Young, 8 Car. & P. 644, 1838. [Mo.] State v. Underwood, 57 Mo. 40, 1 Am. Crim. Rep. 251, 1874. [Tenn.] Smith v. State, 1 Yerg. 228, 1879. See supra, § 253; also 14 Cyc. 1112; 10 Am. & Eng. Enc. Law, 2d ed. p. 311. As to duelling as a substantive offense, see infra, §§ 2115, et seq. 768 CRIMINAL LAW. [§ 610 been threatened with dishonor.* It is the deliberation which constitutes the grade of guilt. Thus if A and B meet deliber- ately to fight, and A strike B and pursue B so closely that B, to protect his own life, kills A, this is murder in B; because their meeting was a compact, and an act of deliberation, in pur- suance of which all that follows is presumed to be done.® If the agreement to fight be cool and deliberate, no subsequent hot blood will be a defense. Thus where B challenged A, and A refused to meet him, but in order to evade the law A told B that he should go the next day to a certain town about his business, and accordingly B met him in the road to the same town, and assaulted him, whereupon they fought, and A killed B, it was held that A was guilty of murder; but the same con- clusion would not follow if it should appear by the whole cir- cumstances that he gave B such information accidentally, and not with a design to give him an opportunity of fighting.* 21 Hale, P. C. 452. Supra, § 133, 1883. 81 Hale, P. C. 452, 480, who says: “Thus is Mr. Dalton, cap. 93, p. 241 (new ed. c. 145, p. 471), to be under- stood.” But a quere is added in 1 Hale, P. C. 452, whether, if B had really and truly declined the fight, ran away as far as he could, and offered to yield, and yet A refusing to decline it had attempted his death, and B after this had killed A in his own defense, it would ex- cuse him from the guilt of murder; admitting clearly that if the run- ning away were only a pretense to save his own life, and was really designed to draw out A to kill him, it would be murder. This qu@re of Lord Hale is discussed in 1 East, P. C. chap. 5, § 54, pp. 284, et seq., and it is observed that Mr. J. Black- stone (4 Bl. Com. 185) expressly puts the same case of a duel as Lord Hale, but without subjoining the same doubt; and that it was considered as settled law by the chief justice in Rex v. Oneby, 2 Ld. Raym. 1485, 1731. Mr. Mast, after reasoning in favor of the extenuation of the duellist so declining to fight, proceeds thus: “Yet still it may be doubtful wheth- er, admitting the full force of this reasoning, the offense can be less than manslaughter, or whether in such case the party can altogether excuse himself upon the foot of necessity in self-defense, because the necessity which was induced from his own faulty and illegal act, namely, the agreement to fight, was in the first instance deliberately foreseen and resolved upon in de- fiance of the law.” 1 East, P. C. chap. 5, § 54, p. 285. See Brafford v. Com. 15 Ky. L. Rep. 398, 23 8. W. 590, 1893. 41 Hawk. P. C. chap. 13, § 22; 1 Hale, P. C. 453; R. v. Byron, 19 St. Tr. 1177; R. v. Walters, 12 St. Tr. 113, 1688. Reference may also be made to Bromwich’s Case, 1 Lev. 180, 1 Sid. 277, 7 St. Tr. 42. Bromwich was indicted for aiding and abetting Lord Morley in the murder of Hast- ings. A valuable collection of cases is found in Townsend, Modern St. Trs. pp. 151 et seq. Doctrine of English cases—The English judges, though generally laying down the law with becom- ing precision, sometimes go beyond our American authorities in mawk- ish sympathy with the accused. Thus on the trial of Purefoy, for § 611] HOMICIDE. 769 On the other hand, where upon a sudden quarrel the parties fight upon the spot, or they presently fetch their weapons and go into a field and fight, and one of them is killed, it will be but manslaughter, because it may be inferred that the blood never cooled.® It is to be supposed with regard to sudden en- counters, that when they are begun, the blood, previously too much heated, kindles afresh at every pass or blow; and in the tumult of the passions, in which the instinct of self-preserva- tion has no inconsiderable share, the voice of reason is not heard; therefore the law, in condescension to the infirmities of flesh and blood, has extenuated the offense.® § 611. —Seconds are responsible for murder. Not only the principals, but the seconds, in a deliberate duel, are guilty of homicide. And with regard to other persons who are pres- ent, the question is, Did they give their aid and assistance by their countenance and encouragement of the principals in the contest? Mere presence is not sufficient; but if they sustain the principals by their advice or presence, or if they go for the purpose of encouraging and forwarding the unlawful conflict, although they do not say or do anything, yet if they are present, and assisting and encouraging at the moment when the pistol is fired, they are guilty of murder.’ killing Colonel Roper in a duel at Maidstone, in 1794, Baron Hotham thus charged the jury: “The ‘oath by which I am bound obliges me to say that homicide, after due in- terval of consideration, amounts to murder. The laws of England, in their utmost lenity and allowance for human frailty, extend their com- passion only to sudden and momen- tary frays; and then, if the blood has not had time to cool, or the reason to return, the result is termed manslaughter. Such is the law of the land, which undoubtedly the un- fortunate gentleman at the bar has violated, though he has acted in conformity to the laws of honor. His whole demeanor in the duel, according to the witness whom you are most to believe, Colonel Stan- wid, was that of perfect honor and perfect humanity. Such is the law, and such are the facts. If you can- not reconcile the latter to your con- Crim. L. Vol. I.—49. science, you must return a verdict of guilty. But if the contrary, though the acquittal may trench on the rigid rules of law, yet the verdict will be lovely in the sight both of God and man.” 1 Town- send, Modern St. Tr. 154, 1794. 51 Hale, P. C. 453; 1 Hawk. P. C. chap. 18, § 29; 3 Co. Inst. 51: See State v. Underwood, 57 Mo. 40, 1 Am. Crim. Rep. 251, 1874. 6 Fost. C. L. 138, 296. 1 Reg. v. Young, 8 Car. & P. 644, 1838. See Reg. v. Cuddy, 1 Car. & K. 210, 1843. See also 14 Cyc. 1113; 10 Am. & Eng. Ene. Law, 2d ed. p. 414. Killing in duel—tIn Reg. v. Young, 8 Car. & P. 644, 1838, the prisoners were indicted for the murder of Charles Flower Mirfin, who was killed in a duel by a Mr. Elliott. Neither of the prisoners acted as a second on the occasion, but there was evidence to show that they 770 CRIMINAL LAW. [§ 612 XIII. Excusr anv Jusrirroation.! 1. Repulsion of felonious assault. § 612. Force of defense may be proportioned to force of attack. Vim vi repellere licet is a cardinal doctrine of the Roman law; and by the English common law, as accepted throughout the United States, this principle has been asserted with equal emphasis. I have a right to resist the application of force to myself or to those under my immediate charge, by force proportioned to the attack.? It is sometimes said, it is true, that only when the assailant threatened life can a defense involving the taking his life be sustained. But this is not true. A violent personal outrage may be repelled by any suit- able means, no matter what the injury done to the assailant may be.* But the offense threatened must be a crime. “Fel- ony” has in our law been used to express the distinction; but this is not sufficiently exact, because a private person is au- thorized to take life to stop a riot, and a riot, though likely to and two other persons went to the ground in company with Mr. El- liott, and that they were present when the fatal shot was fired. Vaughan, B., told the jury. “When upon a previous arrangement, and after there has been time for the blood to cool, two persons meet with deadly weapons, and one of them is killed, the party who occasions the death is guilty of murder; and the seconds also are equally guilty. The question then is, Did the prisoners give their aid and assistance by their countenance and encourage- ment of the principals in this con- test?” After observing that neither prisoner had acted as a second, the learned judge continued: “If, how- ever, either of them sustained the principal by his advice or presence; or if you think he went down for the purpose of encouraging and forwarding the unlawful conflict, al- though he did not say or do any- thing, yet if he was present and was assisting and encouraging at the moment when the pistol was fired, he will be guilty of the offense imputed by this indictment.” The prisoners were found guilty. Ibid.; Roscoe, Crim. Ev. p. 754. As to responsibility of surgeons assisting at duels, see Cullen v. Com. 24 Gratt. 624, 1873. As to venue, see § 185 of New York Penal Code of 1882. 1 As to burden of proof, see Whar- ton, Crim. Ev. § 335, 6 Enc. Ev. p. 597. 2Supra, §§ 130-132, 179; Fields vy. State, 134 Ind. 46, 32 N. E. 780, 1892; People v. Pallister, 188 N. Y. 601, 33 N. E. 741, 1893. As to charge, see [Ala.] Martin v. State, 90 Ala. 602, 8 So. 858, 24 Am. St. Rep. 844, 1891. [Ga.] Davis v. State, 95 Ga. 501, 20 S. E. 259, 1894. [Ill.] Kota v. People, 136 Ill. 655, 27 N. E. 53, 1891; Cannon v. People, 141 Ill. 270, 30 N. E, 1027, 1892. [Ind.] Coryell v. State, 130 Ind. 51, 29 N. E. 369, 1891. [Ky.] Smith v. Com. 13 Ky. L. Rep. 31, 16 S. W. 187, 1891. [Miss.] Maiden v. State, — Miss. +, 11 So. 488, 1892. 8 Ibid. § 612] HOMICIDE. 771 involve felonies in its development, is technically but a misde- meanor.* A mere assault, however, not directed at life or chas- tity, or other high right, cannot excuse homicide.® Hence if a deadly weapon be not used by the assailant, or other cireum- stances do not exist to indicate a felonious attempt, for the as- sailed to take life is at least manslaughter. “The intent,” as is said by Judge Washington,’ “must be to commit a felony. If it be only to commit a trespass, as to beat the party, it will not justify the killing of the aggressor. Repelling felony.—That this right exists to repel a felony is well es- tablished. 1 East, P. C. 271; [Eng.] Reg. v. Hewlett, 1 Fost. & F. 91, 1858. [Fed.] United States v. Wilt- berger, 3 Wash. C. C. 515, Fed. Cas. No. 16,738, 1823. [Ala.] Dill v. State, 25 Ala. 15, 1854; Mattison v. State, 55 Ala, 224, 1876; Smith v. State, 68 Ala. 424, 1880. [Ark.] Levells v. State, 32 Ark. 585, 1878. [Cal.] People v. Campbell, 30 Cal. 312, 1866; People v. Flanagan, 60 Cal. 2, 44 Am. Rep. 52, 1881; Peo- ple v. Simons, 60 Cal. 72, 1881. [Ga.] McPherson v. State, 22 Ga. 478, 1856. [Ill.] Murphy v. People, 37 Ill. 447, 1866. [Ind.] Kingen v. State, 45 Ind. 518, 1873. [Iowa] State v. Burke, 30 Iowa, 331, 1870. [Ky.] Eversole v. Com. 95 Ky. 623, 26 S. W. 816, 1894. [La.] State v. Swift, 14 La. Ann. 839, 1859. [Mich.] People v. Doe, 1 Mich. 451, 1854; Pond v. People, 8 Mich. 150, 1860. [Miss.] Green v. State, 28 Miss. 687, 1857; Staten v. State, 30 Miss. 619, 1859. [N. Y.] People v. Shorter, 4 Barb. 460, 1848. [N.C.] State v. Savage, 78 N. C. 520, 1877. [Ohio] Stewart v. State, 1 Ohio St. 66, 1853. : See also cases cited infra, §§ 626, et seq. 4See Pond v. People, 8 Mich. 150, 1860; Com. v. Daley, 2 Clark (Pa.) 361, 1844; Wharton, Homicide, 703; 4 Bl. Com. 179. 5Infra, § 632. [Iowa] State v. Benham, 28 Iowa, 154, 92 Am. Dec. 417, 1867. [Pa.] Com. v. Drum, 58 Pa. 9, 1868; Com. v. Daley, 2 Clark (Pa.) 361, 1844. [Tenn.] 514, 24 N. E. 161, 1890. ”8 Tf, however, such Claxton v. State, 2 Humph. 181, 1840.’ [Tex.] Harris v. State, — Tex. App. —, 15 S. W. 172, 1890; Bowman v. State, — Tex. Crim. App. —, 21 S. W. 48, 1893; Fuller v. State, 30 Tex. App. 559, 17 S. W. 1108, 1891; Garello v. State, 31 Tex. Crim. Rep. 56, 20 S. W. 179, 1892. 6 Deadly weapon used in self-de- fense.—That there may be circum- stances in which a deadly weapon may be used in self-defense by a party who is only struck by the hand, see [Ala.] Judge v. State, 58 Ala. 405, 1877; Shell v. State, 88 Ala. 14, 7 So. 40, 1889. [Cal.] Peo- ple v. Lemperle, 94 Cal. 45, 29 Pac. 709, 1892. [Ga.] Boatwright v. State, 89 Ga. 140, 15 S. E. 21, 1892; Butler v. State, 92 Ga. 601, 19 S. E. 51, 1893. [Ill.] Davis v. People, 88 Ill. 350, 1878; Duncan v. People, 134 Til. 110, 24 N. E. 765, 1890. [Ind.] Meredith v. State, 122 Ind. [S. C.} State v. Bodie, 33 S. C. 117, 11 S. E, 624, 1890. [Va.] Byrd v. Com. 89 Va. 536, 16 S. E. 727, 1893. See also supra, § 568. . 7United States v. Wiltberger, 3 Wash. C. C. 515, Fed. Cas. No. 16,738, 1823. 8 See, to same eTect, infra, § 631. [Ala.] Pierson v. State, 12 Ala. 149, 1847; Eiland v. State, 52 Ala. 322, 1874; Field v. State, 52 Ala. 348, 1874; Judge v. State, 58 Ala. 406, 29 Am. Rep. 757, 1877. [Ga.] Mc- Pherson v. State, 22 Ga. 478, 1856; Floyd v. State, 36 Ga. 91, 91 Am. Dec. 760, 1860. [Ind.] Kingen v. State, 45 Ind. 518, 1873. [Mich.] Burden v. People, 26 Mich. 162, 772 CRIMINAL LAW. [§ 612 intended beating is of a character to imperil life, or to maim, or to deprive the assailed of some essential right, then the as- sailed is excused in taking life when necessary to repel the assault.? On the other hand, the killing of an assailant whose apparent design was to beat, and not commit a felony, or other violent injury, is not murder, and at the highest is manslaugh- ter.° But the right is limited to the emergency, and does not continue when the assailed retreats to a place of safety, arms himself, and renews the conflict.™ As we have already seen, the defense must not be dispro- portionate to the attack; and the assailed becomes himself re- sponsible if he wantonly use excessive force in repelling the as- sault.? § 613. Conflict provoked by the defendant cannot be set up as a defense. If the defendant in any way challenged the fight, and went to it armed, he cannot afterward maintain that in taking his assailant’s life he acted in self-de- - fense.! “A man has not,” as 1872. [Miss.] Chase v. State, 46 Miss, 683, 1872. [Ohio] Stewart v. State, 1 Ohio St. 66, 1853. 9 Supra, § 130; infra, § 632. [Ala.] Williams v. State, 44 Ala. 41, 1870. [Del.] State v. Rhodes, Houst. Crim. Rep. (Del.) 476, 1877. [Ind.] Kin- gen v. State, 45 Ind. 518, 1873. {Iowa] State v. Benham, 23 Iowa, 154, 92 Am. Dec. 417, 1867; State v. Burke, 30 Iowa, 331, 1870. [Ky.] Messer v. Com. 14 Ky. L. Rep. 492, 20 S. W. 702, 1892. [La.] State v. St. Geme, 31 La. Ann. 302, 1879. [Miss.] Ayers v. State, 60 Miss. 709, 1880. [Pa.] Com. v. Drum, 58 Pa. 9, 1868. [Tenn.] Young v. State, 11 Humph. 200, 1850. As to Texas statutes, see Gilly v. State, 15 Tex. App. 287, 1883; Ball v. State, 29 Tex. App. 107, 14 S. W. 1012, 1890; Bonner v. State, 29 Tex. App. 223, 15 8S. W. 821, 1890; Baltrip v. State, 30 Tex. App. 545, 17 S. W. 1106, 1891. 10Copeland v. State, 7 Humph. 479, 1846. 11 Wharton, Homicide, § 481; Peo- ple v. Westlake, 62 Cal. 303, 1882; Territory v. Bannigan, 1 Dak. 451, 46 N. W. 597, 1877. is properly said by Breese, C. 12Supra, § 134; infra, § 629. [Ala.] Askew v. State, 94 Ala. 4, 33 Am. St. Rep. 83, 10 So. 657, 1892; Perry v. State, 94 Ala. 25, 10 So. 650, 1892. [Fla.] Lovett v. State, 30 Fla, 142, 17 L.R.A. 705, 11 So. 550, 1892. [Ga.] Russell v. State, 88 Ga. 297, 14 S. E. 583, 1892. [Ky.] Sanders v. Com. 13 Ky. L. Rep. 820, 18 S. W. 528, 1892. Assault with fist does not justify use of deadly weapon. Scales v. State, 96 Ala. 69, 11 So. 121, 1892. One attacked may follow his ad- versary till secure from danger; State v. Thompson, 45 La, Ann. 969, 13 So. 392, 1893. But he has no right to hunt up his adversary. Smith v. State, 25 Fla. 517, 6 So. 482, 1889; Farris v. Com. 8 Ky. L. Rep. 417, 1 S. W. 729, 1886. 1Supra, § 604; infra, § 627; Fost. C. L. 277. [Ala.] Eiland v. State, 52 Ala. 322, 1864; Bain v. State, 70 Ala. 4, 1881; Wills v. State, 73 Ala, 363, 1882; Webb v. State, 100 Ala, 47, 14 So. 865, 1894; Gibson v. State, — Ala. —, 16 So. 144, 1894. [Cal.] People v. Stonecifer, § 613] 6 Cal. 407, 1856; People v. West- lake, 62 Cal. 303, 1881; People v. ‘amkin, 62 Cal. 468, 1881. [Ga.] Roach v. State, 34 Ga. 78, 1865; Trice v. State, 89 Ga. 742, 15 8. E. 648, 1892. [Ill.] Kinney v. People, 108 Ill. 519, 1883. [Ind.] Hayden v. State, 4 Blackf. 547, 1874. [Kan.] State v. Rogers, 18 Kan. 78, 26 Am. Rep. 754, 1864. [Miss.] Evans v. State, 44 Miss. 762, 1871. [Mo.] State v. Hays, 23 Mo. 287, 1856; State v. Starr, 38 mo. 270, 1867; State v. Linney, 52 Mo. 40, 18738; White v. Maxcy, 64 Mo. 552, 1866. [N. €.] State v. Brittain, 89 N. C. 481, 1883; State v. Edwards, 112 N.C. 901, 17 S. E. 521, 1893. [Ohio] Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470, 1840. [Pa.] Com. v. Drum, 58 Pa. 9, 1868. [Tex.] Dawson v. State, 33 Tex. 491, 1870; Smith v. State, 15 Tex. App. 338, 1884. [Va.] Vaiden v. Com. 12 Gratt. 717, 1855; Dock v. Com. 21 Gratt. 912, 1872. [Wis.] State v. Clifford, 58 Wis. 117, 16 N. W. 25, 1883. Burden of proving self-def.~se is on defendant. [U. S.] Rdwe v. United States, 164 U. S. 546, 41 L. ed. 547, 17 Sup. Ct. Rep. 172, 1896. [Ala.] Brown v. State, 83 Ala. 38, 3 Am. St. Rep. 685, 3 So. 857, 1887; Rutledge v. State, 88 Ala. 85, 7 So. 335, 1890; Rains v. State, 88 Ala. 91, 7 So. 315, 1890; Gibson v. State, 89 Ala. 121, 18 Am. St. Rep. 96, 8 So. 98, 1890; Roden v. State, 97 Ala. 54, 12 So. 419, 1893; Richardson v. State, 133 Ala, 78, 32 So. 249, 1902; Mann v. State, 134 Ala. 1, 32 So. 704, 1902. {Ariz.] Foster v. Territory, 6 Ariz. 240, 56 Pac. 738, 1899. [Colo.] Bab- eock v. People, 13 Colo. 515, 22 Pac. 817, 1889. [Ga.] Mitchell v. State, 22 Ga, 211, 68 Am. Dec. 493, 1857. [Ill.] Kinney v. State, 108 Ill. 519, 1884; Bonardo v. People, 182 Tll. 411, 55 N. E. 519, 1899. [Ky.] Chapman v. Com. 12 Ky. L. Rep. 704, 15 S. W. 50, 1891; Hite v. Com. 14 Ky. L. Rep. 308, 20 S. W. 217, 1892; Drake v. Com. 14 Ky. L. Rep. 677, 21 S. W. 36. 1893; Godfrey v. Com. 15 Ky. L. Rep. 3, 21S. W. 1047, 1893; Baker v. Com. 20 Ky. L. Rep. 879, 47 S. W. 864, HOMICIDE. 773 1898; Rowsey v. Com. 116 Ky. 617, 76 S. W. 409, 1903. [La.] State v. Kellogg, 104 La. 580, 29 So. 285, 1901. [Mich.] People v. Wright, 89 Mich. 70, 50 N. W. 792, 1891; Peo- ple v. Harris, 95 Mich. 87, 54 N. W. 648, 1893. [Mo.] State v. Hick- am, 95 Mo. 322, 6 Am. St. Rep. 54, 8 S. W. 252, 1888; State v. Parker, 106 Mo. 217, 17 S. W. 180, 1891; State v. Cable, 117 Mo. 380, 22 S. W. 953, 1893; State v. Pettit, 119 Mo. 410, 24 S. W. 1014, 1894; State v. Gordon, 191 Mo. 114, 109 Am. St. Rep. 790, 89 S. W. 1025, 1905; State v. Darling, 202 Mo. 150, 100 S. W. 631, 1907. [N. C.] State v. Brittain, 89 N. C. 481, 1883; State v. Cox, 153 N. C. 638, 69 S. E. 419, 1910. [Or.] Goodall v. State, 1 Or. 333, 80 Am. Dec. 396, 1861; State v. Doherty, 52 Or. 591, 98 Pac. 152, 1908. [Tex.] Lee v. State, 21 Tex. App. 241, 17 S. W. 425, 1886; New- man v. State, — Tex. Crim. Rep. —, 69 S. W. 519, 1902; Burnett v. State, 53 Tex. Crim. Rep. 515, 112 S. W. 74, 1908. [Vt.] State v. Pat- terson, 45 Vt. 308, 12 Am. Rep. 200, 1873. [Va.] Gaines v. Com. 88 Va. 682, 14 S. E. 375, 1892. [Wyo.] Palmer v. State, 9 Wyo. 40, 87 Am. St. Rep. 910, 59 Pac. 793, 1900. Self-defense — Burden of proof shifts when.—If defendant has made out a case of self-defense, the bur- den is upon the state to show that he was at fault. Holmes v. State, 100 Ala. 80, 14 So. 864, 1894. As to when homicide is justifiable on the ground of self-defense, see [Ala.] Noles v. State, 26 Ala. 31, 62 Am. Dec. 711, 1855; Harrison v. State, 24 Ala. 67, 60 Am. Dec. 450, 1854; Brown v. State, 83 Ala. 33, 3 Am. St. Rep. 685, 3 So. 857, 1887. [Ark.] Duncan v. State, 49 Ark. 543, 6 S. W. 164, 1887. [111] Campbell v. People, 16 Ill. 17, 61 Am. Dec. 49, 1854. [Ind.] Dukes v. State, 11 Ind. 557, 71 Am. Dec. 870, 1858; Wall v. State, 51 Ind. 471, 1875. [Iowa] State v. Thomp- son, 9 Iowa, 188, 74 Am. Dec. 342, 1859; State v. Benham, 23 Iowa, 154, 92 Am. Dec. 417, 1867. [Kan.] Wise v. State, 2 Kan. 419, 85 Am. Dec. 595, 1864. [Ky.] Bohannon y. Com. 8 Bush, 481, 8 Am. Rep. 474, 774 [§ 613 CRIMINAL LAW. J.,” “the right to provoke a quarrel and take advantage of it, and then justify the homicide.”* Self-defense may be resorted to in order to repel force, but not to inflict vengeance. “Non ad sumendam vindictam, sed ad propulsandam injuriam.” * “There is certainly no law to justify the proposition that a man may be the assailant and bring on an attack, and then claim exemption from the consequence of killing his adversary on the ground of self-defense. While a man may act safely on appear- ances, and is not bound to wait until a blow is received,® yet he cannot be the aggressor and then shield himself on the assump- tion that he was defending himself.” *® And an adulterer caught in the act by the husband is guilty at least of manslaughter, if, in repelling a murderous attack by the husband, he kill the husband.” But where the defendant, without an intent to take the deceased’s life, provoked the quarrel, this, while it destroys 1871. [La.] State v. Chandler, 5 La. Ann. 489, 52 Am. Dec. 599, 1850. [Mich.] Patten v. People, 18 Mich. 314, 100 Am. Dec. 173, 1869. [Minn.] State v. Shippey, 10 Minn. 223, Gil. 178, 88 Am. Dec. 70, 1865. [Miss.] Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62, 1859. [Mo.] State v. Rose, 92 Mo. 201, 4 8. W. 738, 1886. [N. Y.] Shorter v. Peo- ple, 2 N. Y. 193, 51 Am. Dec. 286, 1849; Scribner v. Beach, 4 Denio, 448, 47 Am. Dec. 265, 1847. [Or.] Goodall v. State, 1 Or. 333, 80 Am. Dec. 396, 1861. [Pa.] Logue v. Com. 38 Pa. 265, 80 Am. Dec. 481, 1861. [Tex.] Ross v. State, 10 Tex. App. 455, 38 Am. Rep. 643, 1881. See also notes 51 Am. Dec. 293; 61 Am. Dec. 53-58; 75 Am. Dec. 69; 88 Am. Dec. 75. 2 Adams v. People, 47 Ill. 376, 1868. 3 See [Ala.] Gibson v. State, 89 Ala. 121, 18 Am. St. Rep. 96, 8 So. 98, 1890; Cotten v. State, 91 Ala. 106, 9 So. 287, 1891. [Ga.] Roach v. State, 34 Ga. 78, 1865. [Iowa] Neeley v. State, 20 Iowa, 208, 1866. [Miss.] Thompson v. State, — Miss. —, 9 So. 298, 1891. [Mo.] State v. Green, 37 Mo. 466, 1866. [Ohio] Stewart v. State, 1 Ohio St. 66, 1853. [S. C.] State v. Trammell, 40 8S. C. 331 42 Am. St. Rep. 874, 18 S. E. 940, 1893. [Utah] People v. Hite, 8 Utah, 461, 33 Pac. 254, 1893. See other cases cited supra, § 604. 4See supra, §§ 127, 128. 5[Ala.] Myers v. State, 62 Ala. 599, 1879; De Arman v. State, 71 Ala. 351, 1881; Sylvester v. State, 72 Ala. 201, 1881. [Ky.] Putman v. Com. 13 Ky. L. Rep. 810, 18 8. W. 527, 1892. [Tex.] Palmer v. State, — Tex. App. —, 15 S. W. 286, 1890. 6 Wagner, J., in State v. Linney, 52 Mo. 40, 1873. See [Eng.] Reg. v. Smith, 8 Car. & P. 160, 1839. Reg. v. Knock, 14 Cox, C. C. 1, 1877. [Ala.] Kirby v. State, 89 Ala. 68, 8 So. 110, 1890; Wilkins v. State, 98 Ala. 1, 18 So. 312, 1893. [Ga.] Coney v. State, 90 Ga. 140, 15 S. E. 746, 1892. JIowa] State v. Murdy, 81 Iowa, 603, 47 N. W. 867, 1891. [Mo.] State v. Blunt, 110 Mo. 322, 19 S. W. 650, 1892. [Tenn,] Williams v. State, 3 Heisk. 376, 1872. [Tex.] Cartwright v. State, 14 Tex. App. 486, 1883; Wills v. State, — Tex. Crim. Rep. —, 22 S. W. 969, 18938. [W. Va.] State v. Scott, 36 W. Va. 704, 15 S. E. 405, 1892. 7See Drysdale v. State, 83 Ga. 744, 6 L.R.A, 424, 20 Am. St. Rep. § 615] HOMICIDE. 775 the excuse of self-defense, does not, if the deceased’s attack put the defendant’s life in danger, militate against reducing the offense to manslaughter.® § 614. Self-defense exists when the defendant, though aggressor, retreats, asking for peace. But though the de- fendant may have thus provoked the conflict, yet if he withdraws from it in good faith, and clearly announces his desire for veace, then if he be pursued his rights of self-defense revive. Of course, there must be a real and bona fide surrender and with- drawal on his part; for if there be not, then he will still continue to be regarded as the aggressor. But if A really and evidently withdraws from the contest, and resorts to a place of security, and B, his antagonist, knowing that he is no longer in danger from A, nevertheless attacks A, then A’s rights in self-defense revive.* § 615. Retreat is necessary when practicable. In case of personal conflict, it must appear, in order to establish excus- able homicide in self-defense, that the party killing had retreat- ed, either as far as he could, by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault would permit him.’ The last qualification is worthy of particular 340, 10 S. E. 358, 1889; Reed v. . tate, 9 Tex. App. 317, 1880; Frank- lin v. State, 30 Tex. App. 628, 18 Ss. W. 468, 1892. 8 [Ark.] Aikin v. State, 58 Ark. 544, 25 S. W. 840, 1894. [Tll.] Kin- ney v. People, 108 Ill. 519, 1883. [Mo.] State v. Talmage, 107 Mo. 543, 17 S. W. 990, 1891. [Tex.] Craig v. State, — Tex. Crim. Rep. —, 23 S. W. 1108, 1893; Childers v. State, 33 Tex. Crim. Rep. 509, 27 S. W. 183, 1894. 1[Ala.] Parker v. State, 88 Ala. 4, 7 So. 98, 1890; Thomas v. State, 103 Ala. 18, 16 So. 4, 1894. [Cal.] People v. Wong Ah Teak, 63 Cal. 544, 1883. [Ga.] Hodges v. State, 15 Ga. 117, 1854. [Ky.] Benning- field v. Com. 18 Ky. L. Rep. 446, 17: S. W. 271, 1891. [La.] State v. Jefferson, 43 La. Ann. 995, 10 So. 199, 1891. [Neb.] Davis v. State, 31 Neb. 240, 47 N. W. 851, 1891. [N. ¥.] People v. Johnson, 139 N. Y. 358, 34 N. FE. 920, 1893. [Nev.] State v. Smith, 10 Nev. 106, 1875. [N. C.] State v. Hill, 20 N. C. 629 (4 Dev. & B. L. 491) 34 Am. Dec. 396, 1839; State v. Howell, 31 N. C. (9 Ired. L.) 485, 1849. [Tex.] Roberts v. State, 30 Tex. App. 291, 17: S. W. 450, 1891; Franklin v. State, 30 Tex. App. 628, 18 S. W. 468, 1892. [Utah] People v. Hite, 8 Utah, 461, 33 Pac. 254, 1893. See supra, §§ 126-134. 2[Ala.] Tidwell v. State, 70 Ala. 33, 1881. [Ark.] Dolan v. State, 40 Ark. 454, 1883. [Cal.] People v. Stonecifer, 6 Cal. 407, 1856. [Ga.] Evans v. State, 33 Ga. 4, 1863. {ind.] Hittner v. State, 19 Ind. 48, 1862. [La.] State v. Thompson, 45 La. Ann. 969, 13 So. 392, 1893. [Miss.] Evans v. State, 44 Miss. 762, 1871. [Mo.] State v. Linney, 52 Mo. 40, 1873. [Ohio] Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470, 1864. [Or.] State v. Conally, 3 Or. 69, 1872. [Va.] Vaiden v. Com. 12 Gratt. 717, 1855. 11 Hale, P. C. 481, 488. [Ala.] Judge v. State, 58 Ala. 406, 29 Am. 776 consideration. CRIMINAL LAW. [§ 615 “Retreated to the wall” is sometimes given by the old text writers as the exclusive test; but even if we accept Rep. 757, 1877; Ingram v. State, 67 Ala. 67, 1880; Bain v. State, 70 Ala. 4, 1881; Rutledge v. State, 88 Ala. 85, 7 So. 335, 1890; Gibson v. State, 89 Ala. 121, 18 Am. St. Rep. 96, 8 So. 98, 1890; Stit v. State, 91 Ala. 10, 24 Am. St. Rep. 853, & So. 669, 1890; Davis v. State, 92 Ala. 20, 9 So. 616, 1891; Amos v. State, 96 Ala. 120, 11 So. 424, 1892; McDaniel v. State, 97 Ala. 14, 12 So. 241, 1893; Keith v. State, 97 Ala. 32, 11 So. 914, 1892; Roden v. State, 97 Ala. 54, 12 So. 419, 1893; Wilkins v. State, 98 Ala. 1, 13 So. 312, 1893; Webb v. State, 100 Ala. 47, 14 So. 865, 1894; Holmes v. State, 100 Ala. 80, 14 So. 864, 1894; Thomas v. State, 103 Ala. 18, 16 So. 4, 1894. [ark.] Johnson v. State, 58 Ark. 57, 23 S. W., 7, 1893. [Ga.] Underwood v. State, 88 Ga. 47, 13 S. E. 856, 1891; Rock- more v. State, 91 Ga. 97, 16 S. E. 305, 1892. [Ill] Ritter v. People, 130 Il. 255, 22 N. E. 605, 1889. [Mo.] State v. Johnson, 76 Mo. 121, 1882; State v. Dettmer, 124 Mo. 426, 27 S. W. 1117, 1894. [Neb.] Parrish v. State, 14 Neb. 60, 15 N. W. 357, 1883. [N. C.] State v. Mazon, 90 N. C. 676, 1884. [Ohic] Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470, 1864. [Pa.] Com. v. Ware, 137 Pa. 465, 20 Atl. 806, 1890. [S. C.] State v. Jackson, 32 S. C. 27, 10 S. E. 769, 1889; State v. Murrell, 33 S. C. 83, 11 8S. E. 682, 1890; State v. McIntosh, 40 S. C. 349, 18 8. C. 1033, 1893. [Tex.] Gilleland v. State, 44 Tex. 356, 1875; Nalley v. State, 30 Tex. App. 456, 17 S. W. 1084, 1891. [Vt.] State v. Roberts, 68 Vt. 139, 21 Atl. 424, 1890. [Va.] Hash v. Com. 88 Va. 172, 18 S. E. 398, 1891; Clark v. Com. 90 Va. 360, 18 S. E. 440, 1893. [W. Va.] State v. Evans, 33 W. Va, 417, 10 S. E. 792, 1890. [Wis.] Perkins v. State, 78 Wis. 551, 47 N. W. 827, 1891. Party attacked may follow adver- sary till he himself is secure. State v.. Thompson, 45 La. Ann. 969, 13 So. 392, 1893. Duty to retreat of person assailed rather than take the life of his as- sailant. Brown v. State, 83 Ala. 33, 3 Am. St. Rep. 685, 3 So. 857, 1887; Blackburn v. State, 86 Ala. 595, 6 So. 96, 1888; Poe v. State, 87 Ala. 65, 6 So. 378, 1888. Where accused can do so with safety to his person, and thus avoid or retire from a combat. Brown v. State, 83 Ala. 33, 3 Am. St. Rep. 685, 3 So. 857, 1887; Fallin v. State, 86 Ala. 13, 5 So. 428, 1888; Black- burn v. State, 86 Ala. 595, 6 So. 96, 1888; Cribbs v. State, 86 Ala. 613, 6 So. 109, 1888; Poe v. State, 87 Ala. 65, 6 So. 378, 1888; Davis v. State, 92 Ala. 20, 9 So. 616, 1890. Not obliged to retreat before exer- cising right of self-defense, unless there are means of escape which are abandoned under the circumstances in which he is placed. State v, Roberts, 63 Vt. 139, 21 Atl. 424, 1890. Where one has provoked the diffi- culty, but thereafter withdraws from the conflict in good faith, and ex- presses a desire for peace, his right of self-defense is revived, and he may go to the extent of killing his opponent, where circumstances ren- der it necessary for his own pro- tection. Duncan v. People, 134 II. 110, 24 N. KE. 765, 1890; Brazzil v. State, 28 Tex. App. 584, 13 S. W. 1006, 1890. Withdrawal for the purpose of securing a more advantageous po- sition to renew the combat with greater effect; the person assailed is not obliged to suspend his self- defense. Luckinbill v. State, 52 Ark. 45, 11 S. W. 963, 1889. —Good faith in withdrawing from the combat is a question for the jury. Parker v. State, 88 Ala. 4, 7 So. 98, 1889. Circumstances which will excuse the slayer from retreating when at- tacked are discussed in People v. § 615] HOMICIDE. 717 this text exclusively, we must remember that it is to be taken in a figurative sense, as indicating a retreat to the limits of per- sonal safety. First, the word “wall’’ is sometimes used inter- changeably with “ditch;” showing that what is meant is that when the assailed cannot further recede without exposing him- self to great peril (e. g., as in crossing a ditch), then he may at that spot assume the aggressive. Secondly, “walls” and “ditches” are not always accessible; and to make them prerequisites to the initiation of those offensive acts which are essential to self- defense would be to declare that there should be no self-defense where there are no “ditches” or “walls.” The true view is, that a “wall” or “ditch” is to be presumed whenever retreat cannot be further continued without probable death, and when the only apparent means of escape is to attack the pursuer. And retreat need not be attempted when the attack is so fierce that the assailed, by retreating, will apparently expose himself to death.? Maeard, 73 Mich. 15, 40 N. W. 784, 1888; State v. Cain, 20 W. Va. 679, 1882; State v. Evans, 33 W. Va. 418, 10 S. E. 792, 1890. 2Supra, § 132; 4 Bl. Com. 185; Fost. C. L. 273; 1 Hawk. P. C. chap. 11, § 14. [Ala.] Oliver v. State, 17 Ala. 587, 1849; Storey v. State, 71 Ala. 331, 1881. [Ark.] Dolan v. State, 40 Ark. 454, 1882. [Ind.] Runyan v. State, 57 Ind. 80, 26 Am. Rep. 52, 2 Am. Crim. Rep. 318, 1873; Fields v. State, 184 Ind. 46, 32 N. E. 780, 1892; Plummer v. State, 135 Ind. 3808, 84 N. E. 9638, 1893. [Iowa] State v. Tweedy, 5 Iowa, 438, 1857; State v. Thompson, 9 Jowa, 188, 74 Am. Dec. 342, 1859. [N. C.] State v. Hill, 20 N. C. 629 (4 Dev. & B. L.) 491, 34 Am. Dec. 396, 1839; Svate v. Kennedy, 91 N. C. 572, 1884. Assailed must retreat as far as the assault will permit. See Mc- Pherson v. State, 22 Ga. 478, 1857; Evans v. State, 88 Ga. 4, 1861; Dock v. Com. 21 Gratt. 909, 1872. See remarks of Thurman, J., in Stewart v. State, 1 Ohio St. 66, 1852. Self-defense — Kentucky doctrine. —In Kentucky the right of self-de- fense has been pushed still further. Nor is retreat required from a party who at the time Phillips v. Com. 2 Duv. 328, 87 Am. Dec. 499, 1865; Carico v. Com. 7 Bush, 124, 1870; Bohannon v. Com. 8 Bush, 481, 8 Am. Rep. 474, 1871; Luby v. Com. 12 Bush, 1, 1876; and see to same effect, State v. Kennedy, 7 Nev. 374, 1872. —These cases are criticized Wharton, Homicide, § 489. Duty to retreat — Assault with deadly weapon.—Sir J. F. Stephen states the law to be that when the assailant assails with a deadly weapon, it is the duty of the as- sailed “to abstain from the inten- tional infliction of death or grievous bodily harm until he has retreated as far as he can with safety to him- self.” To this he appends as a note the following: “If this were not the law, it would follow that any ruffian who chose to assault a quiet person in the street, might impose upon him the legal duty of running away, even it he were the stronger man of the two. The passage of Hale appears to me to be applicable only to cases where deadly weapons are produced by way of bravado or intimidation, —a, case which, no doubt, often oc- curred when people habitually car- in CRIMINAL LAW. [§ 615 is standing on rights which can only be vindicated by mainte- nance even to the assailant’s death. But if, when the defend- ant is out of danger by retreat, he return and renew the attack, he can no longer set up self-defense;* nor is a mere illusive retreat any defense.° § 616. Prior malice of defendant does not abrogate de- fense. As has been already seen, a party is not precluded from setting up the plea of self-defense by the proof of prior malice on his part to his assailant. A has no right to kill B because B bears old malice to A, and the fact of such malice does not in any way diminish B’s right to defend himself against A.? ried arms, and used them on very slight provocation. In such a case it might reasonably be regarded as the duty of the person assaulted to retreat rather than draw his own sword; but I cannot think that Hale meant to say that a man who in such a case closed with his assail- ant and took his sword from him would be acting illegally, or that if, in doing so, the assailant were thrown down and accidentally killed by the fall, the person causing his death would be guilty of felony. The minuteness of the law contained in the authorities, on which this article is founded, is a curious relic of a time when police was lax and brawls frequent, and when every gentleman wore arms, and was sup- posed to be familiar with the use of them.” Steph. Digest Crim. Law, 5th ed. art. 221. He proceeds to say in the text that “any person unlawfully as- saulted may defend himself on the spot by any force short of the in- tentional infliction of death or grievous bodily harm.” Supra, § 182, 3 Supra, § 131; infra, § 633. [Ala.] De Arman v. State, 71 Ala. 351, 1882; Sylvester v. State, 72 Ala. 201, 1882. [Cal.] People v. Ye Park, 62 Cal. 204, 1882. [Ga.] Aaron v. State, 31 Ga. 167, 1860. [Iowa] State v. Thompson, 9 Iowa, 188, 74 Am. Dee. 342, 1859; State v. Maloy, But if B, bearing such malice, attack A with dead- 44 Iowa, 104, 1876. [N. Y.] Pfomer v. State, 4 Park. Crim. Rep. 558, 1860. [N. C.] State v. Mazon, 90 N. C. 676, 1884. [Va.] Dock v. Com. 21 Gratt. 909, 1873. Person in his dwelling house need not retreat. See infra, § 633. Distinction between this kind of homicide and manslaughter is, that here the slayer could not otherwise escape although he would; in man- slaughter, he would not escape if he could. Thus if A assaults B so fiercely that going back would endanger his life, in such case it is agreed that the party thus attacked need not retreat in order to bring his case within the rule of necessity in self-defense; or if, in the assault B fall to the ground, whereby he could not fly, in such case if B kill A it is in self-defense upon chance-medley. 1 Hawk. P. C. chap. 11, § 14; 4 Bl. Com. 185; 3 Co. Inst. 56; Halloway v. Com. 11 Bush. 344, 1875; State v. Dixon, 75 N. C. 275, 1876. 4[Ala.] Watkins v. State, 89 Ala. 82, 8 So. 134, 1890. [Del.] State v. Rhodes, Houst. Crim. Rep. (Del.) 476, 1877. [Ind.] Meurer v. State, 129 Ind. 587, 29 N. E. 392, 1891. 5Ibid.; Hodges v. State, 15 Ga. 117, 1854, and cases cited supra, § 614. 1Supra, § 605; State v. Wilson, 43 La, Ann, 840, 9 So. 490, 1891; Pickens v. State, 61 Miss. 52, 1883. & 617] HOMICIDE. 779 ly weapons, and B is driven to the wall by A and then kills A, B cannot set up self-defense.* § 617. Attack cannot be anticipated when there is an opportunity to restrain by law. It has been sometimes said that if A’s life be made wretched by the reckless and des- perate enmity of B, and if there be good reason to believe that B is intending to assassinate A, A is not obliged, forsaking his usual employments, to hide from B, but may arm himself, and on meeting B shoot B down without waiting to receive B’s shot." No doubt, supposing a community to be without an au- thoritative police government, and supposing B to be a ruffian actually seeking A’s life, whom no other process can be used to check, then A is excused in taking this violent but only possible way of saving his own life, by sacrificing that of B. But it is otherwise where there is opportunity to invoke the interposi- tion of the law.? A man who believes his life is in danger, but whose rights are not as yet attacked, ought, if he have access to a tribunal clothed with the ordinary powers of a justice of the peace, to apply to such tribunal to interpose. If he have ground enough to excuse him in killing the person from whom he believes himself in danger, he has ground enough to have that person bound over to keep the peace, or committed in de- fault of bail. And wherever this process can be applied, the endangered party is not excused in taking the law into his own hands and proceeding to attack his expected assailant. He can- not himself seize on his antagonist in advance of the attack he fears; and if he wishes thus to anticipate the attack, he must 2Ibid.; State v. Hill, 20 N. C. 629 (4 Dev. & B. L. 491), 34 Am. Dec. 396, 1839. 1See Bohannon v. Com. 8 Bush, 481, 8 Am. Rep. 474, 1871. 2[Ky.] Bailey v. Com. 15 Ky. L. Rep. 826, 25 S. W. 883, 1894. [Minn.] State v. Shippey, 10 Minn. 223, Gil. 178, 88 Am. Dec. 70, 1865. [Miss.] Dyson v. State, 26 Miss. 362, 1853; Edwards v. State, 47 Miss. 581, 1873. [Wis.] State v. Martin, 30 Wis. 216, 11 Am. Rep. 567, 1872. Compare distinctions taken supra, § 129. 3 [Eng.] Rex v. Longden, Russ. & R. C. C. 228, 1818. [Ala.] Balkum v. State, 40 Ala. 671, 1867. [Ga.] Gardner v. State, 90 Ga. 310, 35 Am. St. Rep. 202, 17 S. E. 86, 1892. [Miss.] Cotton v. State, 31 Miss. 504, 1856. [N. C.] State v. Ruther- ford, 8 N. C. (1 Hawks) 457, 9 Am. Dec. 658, 1821. [Ohio] Stewart v. State, 1 Ohio St. 66, 1852. [Pa.] Com. v. Drum, 58 Pa. 9, 1868. [Va.] Dock v. Com. 21 Gratt. 909, 1872. See also supra, §§ 525, 589. Person about to be assaulted with a deadly weapon can anticipate the blow. See Fortenberry v. State, 55 Miss. 408, 1877; State v. McDonald, 67 Mo. 18, 1877. 780 CRIMINAL LAW. [§ 617 resort to the law. Where the conflict can be avoided, the law must be relied on for redress.* When, however, a right is ac- tually attacked, the person possessing the right is not bound to yield in order to appeal to the law. He is entitled to repel force by force.® Nor is he precluded from repelling an attack actually made, by the fact that he had such prior notice of the attack that he might have called upon the public authorities to intervene. When the attack is actually made on him he is entitled to repel it, no matter for how long a time he may have anticipated it. If self-defense could only be resorted to in cases in which the attack is entirely unexpected, the right would cease to exist in the cases in which it is most important to society that it should be preserved. If I choose to become a sheep, so runs a pregnant German proverb, I will be devoured by the wolf.® The social wolf is the production of the social sheep. § 618. —Otherwise where there is no organized gov- ernment. Of course the rule just stated, that an attack cannot be anticipated by a private person who could have recourse to the law for this purpose, presupposes that the law gives machin- ery by which, if my life is threatened, I can cause the arrest of my expected assailant. Suppose, however, the law gives no such machinery? Am I to be shot down without the means of pre- vention, by an assassin who will fire at me on sight? Am I to wait to receive the shot, in order to comply with the technical requisite that before I can fire an attempt must be made on my life? In a state ef nature, where there is no law to which I can appeal to have such a ruffian restrained, I am entitled, in order to save my life, to take the law into my own hands; though I do this at my own risk. On this principle may be explained a remarkable case in California, where a party of per- sons were on an island belonging to the United States, engaged in gathering wild bird’s eggs, and where another party attempted 4 [Del.] State v. Downham, Houst. Crim. Rep. (Del.) 45, 1858. [Minn.] State v. Shippey, 10 Minn. 223, Gil. 178, 88 Am. Dec. 70, 1865. [N. Y.] People v. Sullivan, 7 N. Y. 396, 1852. [Pa.] Com. v. Drum, 58 Pa. 9, 1868. 5 Supra, § 128; Bang v. State, 60 Miss. 571, 1882; King v. State, 13 Tex, App. 277, 1882. 6Wer sich zum Schaaf macht, den frisst der Wolf. See fully, supra, § 128. [Fed.] Gourko v. United States, 153 U. S. 183, 38 L. ed. 680, 14 Sup. Ct. Rep. 806, 1893. [Mo.] State v. Evans, 124 Mo. 397, 28 S. W. 8, 1894. [Tenn.] Souey v. State, 18 Lea, 472, 1884. § 619] HOMICIDE. 781 to land for the same purpose. It was held that if the first party resisted the landing by force, the second was justified in using force, and that if one of the occupants were killed in the en- counter, this was excusable homicide.' But if there be any tri- bunal to which a party believing his life to be in danger may resort for protection, he must claim this protection; and for him to take the law in his own hands, and to kill a supposed as- sailant, unless under the honest belief of an actual attack, is murder. § 619. Whether the danger is apparent is to be deter- mined from the defendant’s standpoint. It is conceded on all sides that it is enough if the danger which the defendant seeks to avert is apparently imminent, irremediable, and actual.’ 1 People v. Batchelder, 27 Cal. 69, 85 Am. Dec. 231, 1864. Doctrine illustrated in the Vir- ginius Case, as detailed in Wharton, Homicide, § 490; and see also supra, § 316. 1[Cal.] People v. Ye Park, 62 Cal. 204, 1882; People v. Westlake, 62 Cal. 303, 1882; People v. Thomson, 145 Cal. 717, 79 Pac. 435, 1905. [1ll.] Davison v. People, 90 Il. 221, 1878; Price v. People, 131 Ill. 223, 23 N. E. 639, 1890; Kipley v. Peo- ple, 215 Tl. 358, 74 N. E. 879, 1905. [Ind.] Fields v. State, 134 Ind. 46, 32 N. E. 780, 1892. As to sincere apprehension, see [Ala.] Bain v. State, 70 Ala. 4, 1881; King v. State, 90 Ala. 612, 8 So. 856, 1891; Keith v. State, 97 Ala. 32, 11 So. 914, 1892. [Cal.] People v. Donguli, 92 Cal. 607, 28 Pac. 782, 1891. [Fla.] Garner v. State, 31 Fla. 170, 12 So. 638, 1893. [Ky.] Campbell v. Com. 13 Ky. L. Rep. 17, 16 S. W. 127, 1891; Com. v. Barnes, 13 Ky. L. Rep. 163, 16 S. W. 457, 1891; Cockrill v. Com. 95 Ky. 22, 23 S. W. 659, 1893. [La.] State v. West, 45 La. Ann. 14, 12 So. 7, 1893. [Mich.] People v. Keuhn, 93 Mich. 619, 53 N. W. 721, 1892. [Or.] State v. Morey, 25 Or. 241, 35 Pac. 655, 36 Pac. 573, 1894. [Va.] Field v. Com. 89 Va. 690, 16 S. E. 865, 1893. [Wis.] Richards v. State, 82 Wis. 172, 51 N. W. 652, 1892. Mere belief in design to inflict great bodily harm, or destroy life, is insufficient. [La.] State v. Hal- liday, 112 La. 846, 36 So. 753, 1904. [Mo.] State v. Adler, 146 Mo. 18, 47 S. W. 794, 1898. [Tex.] Yantis v. State, 49 Tex. Crim. Rep. 490, 94 S. W. 1019, 1906. Danger need not be “actual.” Dun- can v. State, 49 Ark. 548, 6 S. W. 164, 1887; Bang v. State, 60 Miss. 571, 1882; Ingram v. State, 62 Miss. 142, 5 Am. Crim. Rep. 485, 1884. —Bona fide belief in imminent danger, in the careful and proper use of his faculties, and on reason- able grounds for such belief, is suffi- cient although accused mistaken as to existence or imminence of the danger. See [Del.] State v. Brown, 5 Penn. (Del.) 339, 61 Atl. 1077, 1905. [Ga.] Redd v. State, 99 Ga. 210, 25 S. E. 268, 1896. [Ill.] Mac- kin v. People, 214 Ill. 232, 73 N. E. 344, 1905. [Ky.] May v. Com. 3 Ky. L. Rep. 474, 1881. [La.] State v. Sadler, 51 La. Ann. 1397, 26 So. 390, 1899. [Miss.] Johnson v. State, 79 Miss. 42, 37 So. 39, 1901. [Mo.] Nichols v. Winfrey, 90 Mo. 403, 2 S. W. 305, 1886; State v. Harrod, 102 Mo. 590, 15 S. W. 373, 1890; State v. Berkley, 109 Mo. 665, 19 S. W. 192, 1891; State v. Gordon, 191 Mo. 114, 109 Am. St. Rep. 790, 89 S. W. 1025, 1905. [Ohio] Wray v. State, 27 Ohio C. C. 1, 1904. [Ohio] Mahaffey v. Territory, 11 782 But apparently as to whom ? first is, that the standpoint is that of the jury.? a primary sense, this is correct. CRIMINAL LAW. [§ 619 Here three theories meet us: The No doubt, in The jury must judge whether the danger was apparent, but it is absurd to say that it is neces- sary that the danger must have been such as to be apparent to themselves as they deliberate finally on the case. Okla, 213, 66 Pac. 342, 1901; Wells v. Territory, 14 Okla. 436, 78 Pac. 124, 1904. [W. Va.] State v. Zeig- ler, 40 W. Va. 598, 21 S. E. 763, 10 Am. Crim. Rep. 463, 1895. As to right of self-defense, under various circumstances, and what con- dition will justify a homicide there- in, see monographic note in 109 Am. St. Rep. 804-826. 2“Apparent” imminent danger is enough if there be a “reasonable” and honest belief in its existence. See [Fed.] United States v. Wilt- berger, 3 Wash. C. C. 515, Fed. Cas. No. 16,738, 1819. |[Ala.] Taylor v. State, 48 Ala. 180, 1871; Eiland v. State, 52 Ala. 322, 1875; Wills v. State, 73 Ala. 363, 1882; Keith v. State, 97 Ala. 32, 11 So. 914, 1892; Wilkins v. State, 98 Ala. 1, 183 So. 312, 1893. [Cal.] People v. Wil- liams, 32 Cal. 280, 1867; People v. Anderson, 44 Cal. 65, 1872. [Ga.] Teal v. State, 22 Ga. 75, 68 Am. Dec. 482, 1857; Stiles v. State, 57 Ga. 183, 1882; Heard v. State, 70 Ga. 598, 1883, [Ill.] Schnier v. People, 23 Ill. 17, 1859; Roach v. People, 77 Ill. 25, 1875; Cahill v. People, 106 Ill. 621, 1883. [Ind.] Creek v. State, 24 Ind. 151, 1865; Hicks v. State, 51 Ind. 407, 1875; West v. State, 59 Ind. 113, 1877. [Kan.] State v. Bohan, 19 Kan. 28, 1877. [Ky.] Holloway v. Com. 11 Bush, 344, 1875; Oder v. Com. 80 Ky. 32, 1882; Williams v. Com. 80 Ky. 318, 1882; Lightfoot v. Com. 80 Ky. 516, 1876. [La.] State v. Johnson, 85 La. Ann. 968, 1883, [Miss.] Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62, 1859; Long v. State, 52 Miss. 28, 1876; Forten- berry v. State, 55 Miss. 403, 1877; Kendrick v. State, 55 Miss. 436, 1877; Bang v. State, 60 Miss. 571, 1882. [Mo.] State v. O’Connor, 31 Mo. 389, 1861; State v. Brown, 64 Tf this were Mo. 367, 1877; State v. Eaton, 75 Mo. 586, 1882. [N. Y.] People v. Austin, 1 Park. Crim. Rep. 154, 1847. [N. C.] State v. Mazon, 90 N. C. 676, 1884. [Ohio] Darling v. Williams, 35 Ohio St. 58, 1878. [Pa.] Murray v. Com. 79 Pa, 311, 1875; Pistorius v. Com. 84 Pa. 158, 2 Am, Crim. Rep. 284, 1879; Aber- nethy v. Com. 101 Pa. 322, 1882. [S. C.] State v. Littlejohn, 33 S. C. 599, 11 S. E. 638, 1890. [Tex.] May v. State, 6 Tex. App. 191, 1879; Pharr v. State, 7 Tex. App. 472, 1879; Williams v. State, 14 Tex. App. 102, 46 Am. Rep. 237, 1883; Moore v. State, 15 Tex. App. 1, 1883; Branch v. State, 15 Tex. App. 96, 1883; Smith v. State, 15 Tex. App. 338, 1884. [Va.] Stoneman v. Com. 25 Gratt. 887, 1874. [W. Va.] State v. Abbott, 8 W. Va. 741, 1875. Conduct of deceased being such as to excite in mind of accused a belief in «a purpose to kill him, in self- defense, he may anticipate the at- tack and protect his own life by taking that of his adversary, even though the jury believe from after developments that the danger was only apparent, and not real, because the accused is justified in acting on the facts as they reasonably appear to him at the time. McCrory v. State, — Miss. —, 25 So. 671, 1899. Jury to be satisfied that the kill- ing was the only way that accused could escape the threatening danger, that it was in self-defense, is not the law, and an instruction to that effect was held reversible error. Carr v. State, 21 Ohio C. C. 48, 11 Ohic C. D. 358, 1900. As to burden of proof, see Whar- ton, Crim. Ev. § 335. As to question in relation to in- sanity, see supra, § 56. § 619] HOMICIDE. 783 true, an unloaded pistol would cease to be an apparent danger; for the jury, when they come to decide the case, know that the pistol was not loaded, and know that there was no real danger. Hence, what the jury have to decide, is not whether the danger is apparent to themselves, but whether it is apparent by some other standard. What, then, is the standard which the jury are thus to apply? The answer given by several of our courts to this question is, that if a “reasonable man” would have held that the danger was apparent, then the danger will be treated as apparent.* 8[Fed.] Allen v. United States, 164 U. S. 492, 41 L. ed. 528, 17 Sup. Ct. Rep. 154, 1896; Owens v. United States, 64 C. C. A. 525, 130 Fed. 279, 1904. [Ala.] Springfield v. State, 96 Ala. 81, 38 Am. St. Rep. 85, 11 So. 250, 1892; McDaniel v. State, 97 Ala. 14, 12 So. 241, 1893; Roden v. State, 97 Ala. 54, 12 So. 419, 1893; Nabors v. State, 120 Ala. 323, 25 So. 529, 1899; Abernathy v. State, 129 Ala. 85, 29 So. 844, 1901; Snyder v. State, 145 Ala. 33, 40 So. 978, 1906. [Cal.] People v. Morine, 61 Cal. 367, 1882; People v. Hyndman, 99 Cal. 1, 33 Pac. 782, 1893; People v. Lynch, 101 Cal. 229, 35 Pac. 860, 1894; Peo- ple v. Glover, 141 Cal. 233, 74 Pac. 745, 1908. [Del.] State v. Brown, 4 Penn. (Del.) 120, 53 Atl. 354, 1902; State v. Brown, 5 Penn. (Del.) 339, 61 Atl. 1077, 1905. [Fla.] Pinder v. State, 27 Fla. 370, 26 Am. St. Rep. 75, 8 So. 837, 1891; Lovett v. State, 30 Fla. 142, 17 L.R.A. 705, 11 So. 550, 1892; Wilson v. State, 30 Fla. 234, 17 L.R.A. 654, 11 So. 556, 1892; Ballard v. State, 31 Fla. 266, 12 So. 865, 1893; Lane v. State, 44 Fla. 105, 32 So. 896, 1902. [Tll.} Kipley v. People, 215 Jl]. 358, 74 N. EK. 379, 1905. [Ind. Terr.] Watkins v. United States, 1 Ind. Terr. 364, 41 S. W. 1044, 1897; Williams v. United States, 4 Ind. Terr. 269, 69 S. W. 871, 1902. [Iowa] State v. Castello, 62 Iowa, 404, 17 N. W. 605, 1883: State v. Row, 81 Iowa, 138, 46 N. W. 872, 1890; State v. Shreves, 81 Iowa, 615, 47 N. W. 899, 1891. [Ky.] Oder v. Com. 80 Ky. 32, 1882; Neeley v. Com. 123 Ky. 1, 93 S. W. 596, 1906; Haney v. Com. 5 Ky. In other L. Rep. 203, 1883; Palmer v. Com. 6 Ky. L. Rep. 370, 1884; McKinney v. Com. 26 Ky. L. Rep. 565, 82 S. W. 263, 1904; Jackson v. Com. 29 Ky. L. Rep. 450, 93 S. W. 598, 1906. [La.] State v. West, 45 La. Ann. 14, 12 So. 7, 1893; State v. Joseph, 45 La. Ann. 903, 12 So. 934, 1893; State v. Allen, 111 La. 154, 35 So. 495, 1903; State v. LeJeune, 116 La, 193, 40 So. 632, 1906. [Miss.] King v. State, — Miss. —, 23 So. 766, 1898. [Mo.] State v. Vansant, 80 Mo. 67, 1883; State v. Frazier, 137 Mo. 317, 38 S. W. 918, 1897; State v. Smith, 164 Mo. 567, 65 S. W. 270, 1901; State v. McKenzie, 177 Mo. 699, 75 S. W. 1015, 1903. [Pa.] Com. v. Johnson, 213 Pa. 432, 62 Atl. 1064, 1906; Tiffany v. Com. 121 Pa. 165, 6 Am. St. Rep. 775, 15 Atl. 462, 1888. [S. C.] State v. Jackson, 32 8. C. 27, 10 S. E. 769, 1889. [Tex.] Nalley v. State, 30 Tex. App. 456, 17 S. W. 1084, 1891; Newman v. State, — Tex. Crim. Rep. —, 70 8. W. 951, 1902; Bearden v. State, 44 Tex. Crim. Rep. 578, 73 S. W. 17, 1903; Lentz v. State, 48 Tex. Crim. Rep. 2, 85 S. W. 1068, 1905. [Vt.j State v. Roberts, 63 Vt. 139, 21 Atl. 424, 1890. [Wash.] State v. Stock- hammer, 34 Wash. 262, 75 Pac. 810, 1904. [Wis.] Perkins v. State, 78 Wis. 551, 47 N. W. 827, 1891; Frank v. State, 94 Wis. 211, 68 N. W. 657, 1896. Actual belief in imminent danger is necessary to justify a homicide in self-defense. [Ala.] Mann v. State, 1384 Ala. 1, 32 So. 704, 1902. [Ga.] Hayne v. State, 99 Ga. 212, 25 S. KE. 307, 1896. [Ind.}] McDermott v. 784 CRIMINAL LAW. {§ 619 cases it is varied; it being said that when the danger is “rea- sonably apparent,” then it is to be treated as apparent. We are, therefore, to infer that if a man of ordinary reason would con- sider an apparent though unreal danger to be imminent and real, then this is a good defense; but that to constitute a good defense it is necessary that the danger should have been such as to have been considered as imminent and real by a man of ordinary reason.* § 620. —Impracticable to take an ideal “reasonable man” as standard. But who is the “reasonable man” who is State, 89 Ind. 187, 1883. [N. C.] State v. Gentry, 125 N. C. 733, 34 S. E. 706, 1899. Aiming unloaded gun may justify self-defense, when the defendant be- lieves the gun to be loaded; see [Eng.] Reg. v. Weston, 14 Cox, C. C. 346. [Ala.] Green v. State, 69 Ala. 6, 1881. [Cal.] People v. An- derson, 44 Cal. 65, 1872. ([Ky.] Brown v. Com. 13 Ky. L. Rep. 372, 17 S. W. 220, 1891. [Tex.] Bode v. State, 6 Tex. App. 424, 1879. Knowledge of accused, derived from personal observation of the vio- lent temper of deceased, and his lia- bility to attack persons without cause, may be taken into considera- tion in arriving at the reasonable- ness of the apprehension of danger from deceased. Sneed v. Territory, 16 Okla. 641, 8 A. & E. Ann. Cas. 354, 86 Pac. 70, 1906. Reasonable fear, doctrine as to, does not apply where the danger is not urgent and pressing, nor ap- parently so, at the time of the homi- cide. Tolbirt v. State, 124 Ga. 767, 53 S. E. 327, 1906. —Fear of a coward that great bodily harm, about to be inflicted upon him, will not justify a homi- cide in supposed self-defense. State v. Allen, 11 La. 154, 85 So. 495, 1903. Reasonable ground for and bona fide belief in danger raise the right of self-defense, although the neces- sity for taking life is not actually present and urgent. [Ala.] Allison v. State, 74 Ark. 444, 86 8. W. 409, 1904. [Or.] State v. Miller, 43 Or. 325, 74 Pac. 658, 1903. [Tex.] Lank- ster v. State, 42 Tex. Crim. Rep. 360, 59 S. W. 888, 1900; Hall v. State, 43 Tex. Crim. Rep. 479, 66 S. W. 783, 1902. Self-defense — Instructions that jury must be “satisfied” that killing was in self-defense, see Wacaser v. People, 134 Ill. 438, 23 Am. St. Rep. 683, 25 N. EB. 564, 1890. 4As illustrating this view, see State v. Bryson, 60 N. C. (2 Winst. L.) 86, 1804. See also [Ark.] Johnson v. State, 58 Ark. 57, 23 S. W. 7, 1898. [Cal.] People v. Fla- have, 58 Cal. 249, 1881. [Ill.] Davis v. People, 88 Ill. 350, 1878; Stein- meyer v. People, 95 Ill. 383, 1880. [Ky.] Sparks v. Com. — Ky. —, 20 8S. W. 167, 1885; Kennedy v. Com. 14 Bush, 340, 1878. [Miss.] Parker v. State, 55 Miss, 414, 1877; Ken- drick v. State, 55 Miss. 436, 1877; McKenna v. State, 61 Miss. 589, 1884. [Pa.] Com. v. Ware, 137 Pa. 465, 20 Atl. 806, 1890. [S. C.] State v. Howard, 35 S. ©. 197, 14 8S. E. 481, 1891. [Tenn.] Draper v. State. 4 Baxt. 246, 1874. See Wharton, Homicide, § 493. In Indiana there must be reason- able belief. McDermott v. State, 89 Ind. 187, 1883. In Kansas person may act on facts as they appear to him, and is not to be judged by the facts as they are. State v. Reed, 53 Kan. 767, 42 Am. St. Rep. 322, 37 Pac. 174, 1894. In Missouri a “reasonable cause” for the belief is necessary. State v. Parker, 106 Mo. 217, 17 S. W. 180, 1891, § 620] HOMICIDE. 785 thus invoked as the standard by which the “apparert danger” is to be tested? What degree of “reason’’ is he to be supposed to have? If he be a man of peculiar coolness and shrewdness, then he has capacities which we rarely discover among persons flut- tered by an attack in which life is assailed; and we are applying, therefo:e, a test about as inapplicable as would be that of the jury who deliberate on events after they have been interpreted by their results. Or, if we reject the idea of a man of pecul- iar reasoning and perceptive powers, the selection is one of pure caprice, the ideal reasonable man being an undefinable myth, leaving the particular case ungoverned by any fixed rule. And that this ideal reasonable man is an inadequate standard is shown by a conclusive test. Suppose the ideal reasonable man would at the time of the conflict have believed that a gun aimed by the deceased was loaded, whereas in point of fact the defendant knew the gun was not loaded; would the defendant be justified in shooting down an assailant approaching with a gun the defendant knows to be unloaded, simply because the ideal reasonable man would suppose the gun to be loaded? No doubt that in such case no honest belief of the ideal reasonable man would be a defense to the defendant who knew that the he- lief was false, and that he was not really in danger of his life. And if the belief of the ideal reasonable man be not admissible to acquit, @ fortiori it is inadmissible to convict.’ 1For a discussion of the authori- ties on this point see Wharton, Homicide, § 495. As to admissibility of evidence of deceased’s bad character, see Whar- ton, Crim. Ev. § 69. [Eng.] Forster’s Case, 1 Lewin, C. ©. 187, 1825. [Fla.] Gladden v. State, 12 Fla. 562, 1868. [Ill.] Adams v. People, 47 Ill. 376, 1868; Schnier v. People, 23 Ill. 17, 1859. [Iowa] State v. Middle- ham, 62 Iowa, 150, 17 N. W. 446, 1883. [La.] State v. Swift, 14 La. Ann, 839, 1859. As to admissibility of evidence of threats by deceased, see Wharton, Crim. Ev. § 757; 10 Decem. Dig. p. 562, § 116 (6). Apprehension of danger — Stand- ard of.—Other cases exist in which a standard outside of the defendant is apparently set up, but in which Crim. L. Vol. L—50. the view actually taken is that the standard is to be the defendant’s own consciousness; but, that, as is elsewhere shown, if his error of fact is attributable to his own negligence, and if his apprehension of danger springs from this error in fact, then he is guilty of negligent homicide, that is, of manslaughter. [Ala.] Bondurant v. State, 125 Ala. 31, 27 So. 775, 1900; Fantroy v. State, 166 Ala. 27, 51 So. 931, 1910; Hubbard v. State, — Ala. —, 55 So. 614, 1911. [Cal.] People v. Herges, 14 Cal. App. 273, 111 Pac. 624, 1910; People v. Shimonaka, — Cal. App. —, 116 Pac. 327, 1911. [Conn.] Morris v. Platt, 32 Conn. 75, 1864. [Del.] State v. Borrelli, — Del. —, 76 Atl. 605, 1910; State v. Primrose, — Del. —, 77 Atl. 717, 1910; State v. Russo, — Del. —, 77 Atl. 743, 1910. [Ga.] 786 CRIMINAL LAW. [§ 62) § 621. —Analogy from cases of interference in conflicts of others. As showing that it is the defendant’s standpoint that is the test, we may appeal to a class of cases already noticed, Fant v. State, 8 Ga. App. 438, 69 8S. E. 586, 1910. [Ind.] Creek v. State, 24 Ind. 151, 1865. ([Ky.] West v. Com, 15 Ky. L. Rep. 386, 23 8. W. 368, 1893. [N. Y.] Shorter v. People, 2 N. Y. 193, 51 Am. Dee. 286, 1849; People v. Austin, 1 Park, Crim, Rep. 154, 1847. [N. C.] State v. Castle, 133 N. C. 769, 46 S. E. 1, 1903. [Okla.] Turner v. State, 4 Okla. Crim. Rep. 164, 111 Pac. 988, 1910. [S. C.] State v. Thompson, 68 S. C. 133. 46 S. E. 941. 1904. [Tex.] Norris v. State, 42 Tex. Crim. Rep. 559, 61 S. W. 493, 1901; Tilm- yer v. State, 58 Tex. Crim. Rep. 562, 137 Am. St. Rep. 982, 126 S. W. 870, 1910; Moss v. State, 59 Tex. Crim. Rep. 68. 126 S. W. 1150, 1910; Pay- ton v. State, 60 Tex. Crim. Rep. 475, 132 8S. W. 127, 1910; Duke v. State, — Tex. Crim. Rep. —, 133 8. W. 432, 1911; Williams v. State, — Tex. Crim. Rep. —, 186 S. W. 771, 1911; Ballard v. State, — Tex. Crim. Rep. —, 1388 S. W. 120, 1911; Carden v. State, — Tex. Crim. Rep. —, 138 S. W. 396, 1911. See cases cited in Wharton, Homi- cide, § 500. —In California, apprehension of danger is an essential element to raise the right of self-defense. Peo- ple v. Shimonaka, — Cal. App. —, 116 Pac. 327, 1911. —In Delaware it is not sufficient that at the time of the homicide ac- cused believed himself to be in dan- ger of death or great bodily harm at the hand of the deceased; the cir- cumstances must be such as, in the judgment of the jury, to justify a reasonable man in such belief. State v. Reese, — Del. —, 79 Atl. 217, 1911. Bad man, however lawless, may not be killed on sight by anyone whom he has previously threatened or assaulted. Ware v. Com. 140 Ky. 534, 131 S. W. 269, 1910. That this is correct, see infra, § 623. Duress—Person of weak nerves.— In Jordan v. Elliott, Pa. Sup. Ct. 1882, 12 W. N. C. 56, it was held that when duress was set up by a person of weak nerves, it would be made out, although the threats were not such as a person of strong char- acter would have yielded to. It was also held that evidence might be re- ceived to show that the person sub- jected to the duress had heard that. the person threatening was violent and desperate. See Wharton, Contr. § 147. “Fear” that will excuse-—The pe- nal codes of many of the states leave the question open. The “fear,” it is declared in language substantially the same, though with incidental variations, must be the “fear of a reasonable person,” or must be a “reasonable fear,’ and the killing must have been “under the influence of these fears,” and “not in revenge.” So it is presented by statute, though in language exhibiting much diversity. In California (People v. Hurley, 8 Cal. 390, 1857; People v. Williams, 32 Cal. 280, 1867), Ar- kansas, Illinois, Georgia, Kansas (Gen. Stat. 1868, p. 319), in Missis- sippi (Dyson v. State, 26 Miss. 362, 1853), in Minnesota (Stat. 1867, p. 598), in New York,—2 Rev. Stat. 660, § 3, sub. 2, declared by Bronson, J., in Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286, 1849, to be only declaratory of the common law. But in no statute do we find a determination of the question whetli- er this “reasonableness” is to be tested by the defendant’s lights, or those of an ideal reasonable man. Undoubtedly, courts have read the statutes so as to include the latter view (see cases ante, § 619). But this is not a necessary implication of the statutes, which leave it open to determine in what way the term “reasonable” is to be defined. The leading maxim on this point is one which Mr. Broom, in his “Legal Maxims,” tells us Lord Er- skine relied on as of controlling im- portance, and which is adopted in well-known opinion of Baron Paik: § 621] HOMICIDE, 787 where A interferes to protect B, whom A conceives to be un- justly and unfairly attacked by C. Now it does not matter —(Reg. v. Thurborn, 1 Den. C. C. 387, Temple & M. 67, 2 Car. & K. 831, 18 L. J. Mag. Cas. N. S. 140, 13 Jur. 499, 1849): “The rule of Jaw founded in justice and reason is. that Actus non facit reum, nisi mens sit rea: the guilt of the ac- cused must depend upon the circum- stances as they appear to him. To the same effect may be cited the following expressions of Garrow, J., in a much earlier case: (Rex v. Scully, 1 Car. & P. 319, 28 Revised Rep. 780, 1824): “Here the life of the prisoner was threatened, and if he considered his life in actual dan- ger, he was justified in shooting the deceased as he had done; but if, not considering his own life in danger, he rashly shot this man, who was only a trespasser, he would be guilty of manslaughter.” This test has been maintained, with only slight occasional and prob- ably inadvertent departures, by the Pennsylvania courts. It was uni- formly applied in all homicide cases by judge King, a great master of criminal law. Following Judge King’s lead, we find Judge Brewster, afterward pre- siding in the same court, declaring that “the attack must have been such as in the belief of the prisoner rendered it necessary to defend him- self, even to the taking of the life of the deceased.” See Com. v. Carey, 2 Brewst. (Pa.) 404, 1868. To the same effect may be cited an opinion of the late Chief Justice Thompson, of Pennsylvania, speak- ing for the whole supreme bench of that state. [Cal.] People v. Bruggy. 93 Cal. 476, 29 Pac. 26, 1892. [Pa.] Logue v. Com. 38 Pa. 265, 80 Am. Dec. 481, 1861. See also Com. v. Seibert, Luzerne Co. 1852, cited in Bowlby’s Wharton, Homicide, p. 456. [S. C.] State v. Wyse, 33 S. C. 582, 12 S. BE. 556, 1890. [Tex.] Cochran v. State, 28 Tex. App. 422, 13 S. W. 651, 8 Am. Crim. Rep. 496, 1890. In Colorado and Louisiana the be- lief must be the result of some overt act or hostile demonstration made by the deceased against the accused. Jones v. People, 6 Colo. 452, 45 Am. Rep. 526, 1882; State v. Cosgrove, 42 La. Ann. 753, 7 So. 714, 1890; State v. Jackson, 44 La. Ann. 160, 10 So. 600, 1892. | In Massachusetts, if we are to judge from cases in which evidence of the deceased’s ferocity and bru- tality was at one time rejected, the view here defended was at that time disapproved; yet we must not forget that in Selfridge’s Case, which has always been held law in Massachu- setts, evidence was received of the defendant’s debility and of his ex- pectation of being attacked by “some bully;” and Judge Parker expressly told the jury that these were among the chief points for them to consider in determining whether the danger to the defendant was apparent. And the present tendency of the Massa- chusetts supreme court is to return, though with the reservation that the impression must be reasonable, to the subjective tests established in Selfridge’s Case. Thus, under the statutes authorizing the defendant to be examined in his own behalf, when the defendant has introduced evidence tending to show that, at the time he struck the blow, he had reasonable cause to apprehend an at- tack upon and serious bodily harm to himself from the man he killed, he is not allowed to testify that at that time he did in fact apprehend such an attack. Com. v. Woodward, 102 Mass. 155, 1869. And by a still more recent decision the cases excluding evidence of the deceased’s character for ferocity have been overruled, therein virtual- ly adopting the subjective test. Com. v. Barnacle, 134 Mass. 215, 45 Am. Rep. 319, 1883; supra, § 56. In Michigan, as to rule, see Pond v. State, 8 Mich. 150, 1860. In New York, the opinion of Judge Bronson in Shorter’s Case, as already cited, has been frequently referred to, in succeeding trials, as properly expounding the law. At the same time, in Lamb’s Case, in 1866, the 788 CRIMINAL LAW. [§ 621 whether A’s impressions were right or wrong. If they were honest, and not negligently adopted, then A’s offense is not judge trying the case charged the jury as follows: “A man is not bound, if his life is in imminent per- il or danger, to wait until he receives a fatal wound, or has some great bodily injury inflicted on him. If he think his life is in imminent peril, he has a right to act upon that thought and take life; but if he does it, it is at the risk of a jury saying, when all the facts are de- veloped before them, whether he was justified in forming that opinion or not. If you are satisfied from the evidence that the circumstances did not warrant the conclusion that he arrived at, and that he took life, it is no justification, and you have a right to convict. In Ohio, Judge Thurman, in a cap- ital case in the year 1852 (Stewart v. State, 1 Ohio St. 66), says: “whether a person assaulted is or is not bound to quit the combat, if he can safely do so, before taking life, it will not be denied that in order to justify the homicide he must, at least, have reasonably apprehended the loss of his own life, or great bodily harm, to prevent which, and under a real, or at least supposed necessity, the fatal blow must be given.” But “reasonably” by what standard, and “supposed” by whom? That the defendant was the person thus taken as a standard appears from a succeeding passage, in which Judge Thurman, when inquiring whether there was such a bona fide supposition by the defendant, says: “We find no evidence tending to prove that Stewart (the defendant), when he saw Dotey (the deceased), was in danger of loss of life or limb, or of great bodily harm, or that he apprehended such danger.” It is clear, therefore, that “reasonably” is used by Judge Thurman in antithesis to “negligently.” If the defendant “reasonably,” 7. e., in due exercise of his reason, believed himself in danger, this is a defense. It is not his impressions alone, but the question is, whether those im- pressions at the time he formed them were correct. If they were correct, it is a protection; if they were in- correct, then it affords him no im- munity or protection. This is cer- tainly very loosely put; and we can only reconcile the last statement with the first three by supposing that “correct,” in the last sense, is to be understood as “correct accord- ing to the defendant’s own oppor- tunities of judging.” But however this may be, we learn, on examining the opinions of the appellate judges, that the charge was, in the opinion of Davies, 0. J., Smith, J., and Mor- gan, J., not erroneous, when taken as a whole; and that Smith, J., and Morgan, J., were of opinion that there were no facts proved to which a charge on the law of self-defense was applicable, and hence that it was not, if erroneous, calculated to prejudice the defendant. People v. Lamb, 2 Abb. Pr. N. S. 148, 1866; 2 Keyes, 360, 54 Barb. 342, 1865. See Temple v. People, 4 Lans. 119, 1871. As cases adopting the subjective test, see [Ala.] Oliver v. State, 17 Ala. 587, 1850; Carroll v. State, 23 Ala, 28, 58 Am. Dec. 282, 1877; Noles v. State, 26 Ala. 31, 62 Am. Dee. 711, 1855; Green v. State, 69 Ala. 6, 1881. [Cal.] People v. De Los Angeles, 61 Cal. 188, 1882. [Fla.] Gladden v. State, 12 Fla. 562, 1868. [Ga.] Teal v. State, 22 Ga. 75, 68 Am. Dec. 482, 1857. [Iowa] State v. Neeley, 20 Iowa, 108, 1865; State v. Collins, 32 Iowa, 36, 1871; State v. Morphy, 33 Iowa, 270, 11 Am. Rep. 122, 1871. [Kan.] State v. Potter, 13 Kan. 414, 1874. [Miss.] Evans v. State, 44 Miss. 762, 1870; Wesley v. State, 37 Miss. 327, 75 Am, Dec. 62, 1859. [Mo.] State v. Sloan, 47 Mo. 604, 1871; State v. Bryant, 55 Mo. 75, 1874, [Tenn.| Grainger v. State, 6 Yerg. 459, 26 Am. Dec. 278, 1830; State v. Rippy, 2 Head, 217, 1858; Williams v. State, 3 Heisk. 376, 1872. [Tex.] Bode v. State, 6 Tex, App. 424, 1879; Sims § 622] HOMICIDE. 789 higher than manslaughter. And a similar analogy may be found in the rulings that in cheats by false pretenses the stand- ard of credulity is to be determined by the prosecutor’s own capacity and experience, not by those of an ideal reasonable man.* § 622. —On principle, the test is the defendant’s honest belief. Viewing the law in this respect on principle, we are compelled to hold that the question of apparent necessity can only be determined from the defendant’s standpoint.’ Take the question, first, in its simpler relations. A is assaulted by B with what appears to be a loaded pistol in his hand. A kills B, believing the pistol to be loaded, when it is not. This, it is agreed, may constitute a good case of self-defense. When we come to analyze A’s belief, however, we find that it is an ordi- nary conclusion of inductive reasoning; a conclusion which is erroneous, because its minor premise is false. Putting this process in syllogistic form, it stands as follows: Whoever assaults me with a loaded pistol endangers my life. B assaults me with a loaded pistol, etc. Supposing, however, we substitute for the subject of the major premise the term “garroter,’—slightly varying the predi- cate, the process may be then thus stated: A garroter taking me by the throat is likely to do me great bodily harm. B is a garroter taking me by the throat, ete. v. State, 9 Tex. App. 586, 1880. [Va.] Stoneman v. Com. 25 Gratt. 887, 1874. [W. Va.] State v. Cain, 20 W. Va. 679, 1882. Divergence from the text; it was held in State v. Shoultz, 25 Mo. 128, 1857, that evidence of defendant’s peculiar nervousness was inadmis- sible. This, however, is overruled in State v. Keene, 50 Mo. 357, 1872. As rejecting the distinction taken in the text, see Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62, 1859; State v. McGreer, 13 S. C. 464, 1880. See this question discussed in its relation to insanity, supra, § 55. 1¥Fost. C. L. 262; 1 Hawk. P. C. chap. 13, § 44; and see supra, §§ 521 et seq., 607; infra, 625. 2Infra, § 1459. 1See [Ala.] Thomas v. State, 103 Ala. 18, 16 So. 4, 1894. [Ark.] Smith v. State, 59 Ark. 132, 43 Am, St. Rep. 20, 26 S. W. 712, 1894. [Ind.] Trogdon v. State, 133 Ind. 4, 32 N. E. 725, 1892. [Miss.] Stricklin v. State, — Miss. —, 13 So. 898, 1893. [Ohio] State v. Peacock, 40 Ohio St. 333, 1883. [Tex.] Bode v. State, 6 Tex. App. 424, 1879. See also, cases cited supra, § 618; and note 40 Am. St. Rep. 732. It should be remembered that if the assailed acts, in the confusion of a sudden and unexpected attack, wildly and desperately, the blame is in a large measure imputable to the assailant. The assailant acts with deliberation and with the weapons he has chosen for the purpose; the assailed acts without deliberation and with any weapons he can pick 790 CRIMINAL LAW. [§ 622 In the first case, it is enough if I honestly, though erroneous- ly, believe that B’s pistol is loaded; and in the second case it is enough if I honestly, though erroneously, believe that B is a garroter. In both cases the error of the conclusion is one of the apprehensive powers. I err in my apprehension; I do not see aright; or I have been misinformed; or I have not heard aright. But in each case the error for which I am to be put on trial is my error, not somebody’s else error. It is no excuse to me, if I resort to self-defense, that some “reasonable” look- er-on believes the pistol to be loaded, when I know that it is unloaded. So it is no excuse to me, if I shoot down a person suddenly hustling me, that some “reasonable” looker-on be- lieves the supposed assailant to be a garroter, when I know him not to be a garroter. So if I, according to my own lights, con- clude the pistol to be loaded, or the assailant to be a garroter, then I am to be acquitted of malice, if I act upon this belief, though I cannot be acquitted of manslaughter if I arrive at this belief negligently. In other words, I cannot be convicted of murder, which involves a malicious intent, unless I have such a malicious intent; though I may be convicted of manslaughter if I have killed another by aiming at him a dangerous weapon without due consideration. Nor does it make any difference that my conclusion as to the imminency of the danger is not that which a cool observer of ordinary capacity would have reached. In the first place, we must remember that whoever puts me in a position of danger which so disturbs or flutters me that I act precipitately and convulsively is liable for the con- sequences of such precipitate and convulsive action. In the second place, even supposing my intellect is so dis- ordered as to be incapable of right reasoning, it is by this dis- ordered and illogical intellect, and not by the intellects of saner and more logical observers, that I am to be judged.” To this effect may be cited the observations of one of the most vigorous of contemporaneous English commentators. “Partial insani- ty,” says Sir J. F. Stephen, ‘may be evidence to disprove the presence of the kind of malice required by the law to consti- up. See further comments in note lief. See State v. Harrington, 12 to supra, § 134. Nev. 125, 1877; Wharton, Crim. Ev. 2 Supra, §§ 54, 619, et seq. § 431; 6 Enc. Ev. p. 762. Defendant may testify to his be- § 622] HOMICIDE. 791 tute the particular crime of which the prisoner is accused. A man is tried for wounding with intent to murder. It is proved that he inflicted the wound under a delusion that he was break- ing ajar. The intent to murder is disproved, and the prisoner must be acquitted; but if he would have no right to break the supposed jar, he might be convicted of an unlawful and ma- licious wounding.” * So Berner, an authoritative German ju- rist,* tells us that “whether the defendant actually transcended the limits of self-defense can never be determined without ref- erence to his individual character. An abstract and universal standard is here impracticable. The defendant should be held guiltless (of malicious homicide) if he only defended himself to the extent to which, according to his honest convictions as affected by his particular individuality, defense under the cir- cumstances appeared to be necessary. 8 Criminal Law of England, Lon- don, 1863, p. 92. The better conclusion would be, that as he (the defendant) used a dangerous weapon negligently, he would be liable as for negligent wounding. Infra, § 623. 4Lehrbuch d. Straf. 1871, p. 147. 5 As illustrations of this important principle the following cases may be here cited: To larceny a felonious intent is necessary; a person who takes another’s goods honestly, though erroneously, believing them to be his own, is not guilty of lar- eeny. See Reg. v. Reed, Car. & M. 306, 1842; Merry v. Green, 7 Mees. & W. 628, 10 L. J. Mag. Cas, N. S. 154, 1841; Com. v. Weld, Thacher, Crim. Cas. 157, 1827. Infra, § 1123. Specific punishment is assigned to assaulting an officer: A, an officer, is assaulted by B, who is honestly and innocently ignorant that A is an officer; B is not liable for assault- ing an otticer, though chargeable with assaulting a private person. See [Fed.] United States v. Liddle, 2 Wash. C. C. 205, Fed. Cas. No. 15,598, 1808; United States v. Or- tega, 4 Wash. C. C. 531, Fed. Cas. No, 15,971, 1825. [Il] Spicer v. People, 11 Il. App. 294, 1882. [N. Y¥.] Yates v. People, 32 N. Y. 509, 1865. [Pa.] Logue v. Com. 38 Pa, 265, 80 Am. Dec. 481, 1861. 5 See also, supra, §§ 107, 546, infra, § 852. No actual danger, and no occasion for the homicide being disclosed sub- sequently, will not deprive accused of plea of self-defense, where the homicide was committed under a rea- sonable apprehension of loss of life or great bodily harm, and the danger appears to the accused at the mo- ment to present no other alternative, the conditions being such as would convince a reasonable man that dan- ger actually existed. See [Fed.} Owens v. United States, 64 C. C. A. 525, 130 Fed. 279, 1904. [Ind.] Wall v. State, 51 Ind. 471, 1875. [Ky.] Holloway v. Com. 11 Bush, 344, 1875. [Mo.] State v. Beckner, 194 Mo. 281, 3 L.R.A.(N.S.) 535, 91 S. W. 892, 1906. [Nev.] State v. Fer- guson, 9 Nev. 106, 1874. [Pa.] Logue v. Com. 38 Pa. 265, 80 Am. Dec. 481, 1861. As to standpoint for determina- tion as to danger and necessity for the homicide being that of the ac- cused, see monographic note in 3 L.R.A.(N.S.) 537-541. Piracy—Mistaking merchant ves- sel for pirate-—A cruiser, under the innocent and honest belief that a merchant vessel is a pirate, captures the merchant vessel; this is not pi- racy in the cruiser. The Marianna Flora, 11 Wheat. 1, 6 L. ed. 405, 792 CRIMINAL LAW. [§ 623 § 623. —But, though defendant believes he is in danger of life, he is guilty of manslaughter if this belief is imput- able to his negligence. 1826; Clow v. Wright, Brayton (Vt.) 118, 1816. See supra, § 107. Drunkenness — Negligence.—So is it in eases of drunkenness. Drunk- enness is itself negligence, and if a drunken man without prior malice kills another, it is manslaughter. But unless there be such prior mal- ice, such killing is not murder, be- cause the drunken man, supposing his mind to be stupefied by drink, is capable of a specific intent to take life. [Ga.] Jones v. State, 29 Ga. 594, 1860. [Ky.] Shannahan v. Com. 8 Bush, 463, 8 Am. Rep. 465, 1871. [Minn.] State v. Garvey, 11 Minn. 154, Gil. 95, 1866. [Pa.] Keenan v. Com. 44 Pa. 55, 84 Am. Dec. 414, 1862. See also, cases cited supra, § 68. Public excitement—Intent.—In the same line may be noticed cases in which, under the influence of pub- lic excitement, the mind becomes sv disturbed as to be incapable of a specific intent. During the Phila- delphia riots of 1844 several cases of this character were brought be- fore the courts. In such a whirl- wind of terror and fanaticism as then swept over the Irish residents | of Philadelphia, dividing them into two hostile camps, is was not strange that men of weak minds should lose their balance, and, while the conflict raged, with their powers of discrimination paralyzed or fren- zied, should use wildly and mis- chievously any dangerous instru- ments they might seize. Were such men to be held guilty, under the old common law rule, of murder, if it appeared that by them, or by those with whom they acted, others were killed? Neither Judge King, who tried the cases on their first pres- entation, nor Judge Rogers, of the supreme court, to which body one of the cases was subsequently removed, so thought. These clear-headed judges held that the defendant could not be convicted of murder in the first degree, unless a specific intent A man who deals with deadly weap- to kill could be proved; and that this intent could not be suppused to have been harbored by men who were so overcome by excitement as to be incapable of knowing what they were about. Hence the convictions were for murder in the second degree or manslaughter. Self-defense—No belief killing nec- essary.—The mere fact that the de- fendant did not at the time of the killing believe such killing was nec- essary does not devest him of the right to set up self-defense if the killing was not intended by him, but was incidental to his excusable de- fense of himself when assaulted. McDermott v. State, 89 Ind. 189, 1883. Threats of deceased—Uncommuni- cated.—Whether threats uttered be- fore a fatal collision, not communi- eated to the defendant, are admis- sible, is discussed in another volume. Wharton, Crim. Ev. § 757. It is clear, however, that the very courts which hold the defendant, on the question of intent, to the strictest accountability, have been the most reluctant to admit evidence of the deceased having threatened the de- fendant, unless it could be proved that those threats were known to the defendant. But why should proofs of threats when known to the defendant be received? Simply because, when known to the defend- ant, they go to explain his motive when the question of self-defense comes up. They are therefore ad- mitted; and when admitted are deemed of peculiar weight, because they tend to show that danger was imminent to the defendant’s appre- hension. See note in 3 L.R.A.(N.S.) 537. Evidence as to brutal character, etc., of deceased.—Another illustra- tion may be drawn from the rulings with regard to the character of the deceased. As is elsewhere seen, the better opinion is that it is competent for the defendant in cases of self- defense to show that the deceased § 623] HOMICIDE. 793 ons is bound to act considerately; and if he kill another person by his negligent use of such weapons, such killing, as is else- where fully shown, is manslaughter.’ That this view underlies the English common law on this point a scrutiny of the preceding cases will demonstrate. In Levett’s case, for instance, which is the crucial case in this branch of the law, we find a man who, suddenly aroused from sleep, under information wholly false, killed another whom he supposed to be a burglar, acquitted on the ground that under the circum- stances he acted under an innocent error of fact. But Foster® tells us that “possibly it” (the case in question) “might have better been ruled manslaughter at common law, due circumspec- tion not having been used.” Judge Bronson, in commenting on this passage,* says, “He” (Foster) “calls it nothing more was a person of great physical strength and of brutal and lawless character. No doubt this is admis- sible on general grounds, for the pur- pose of showing the deceased’s at- titude. But it is eminently proper, for the purpose of proving that the defendant, according to his rights, had reason to believe that the attack on him endangered his life. See Wharton, Crim. Ev. § 757. For a discussion of this topic in its general relations, see supra, § 134. [Ala.] Perry v. State, 94 Ala. 25, 10 So. 650, 1892; Wiley v. State, 99 Ala. 146, 18 So. 424, 1893. [Fla.] Garner v. State, 28 Fla. 113, 29 Am. St. Rep. 232, 9 So. 835, 1891. [Mich.] People v. Harris, 95 Mich. 87, 54 N. W. 649, 1893. [Tex.] Bracken v. State, 29 Tex. App. 362, 16 S. W. 192, 1891; Childers v. State, 30 Tex. App. 160, 28 Am. St. Rep. 899, 16 S. W. 908, 1891. 1See supra, § 468. [Ark.] State v. Grote, 109 Mo. 345, 19 S. W. 93, 1892. [Iowa] State v. Graham, 61 Iowa, 608, 16 N. W. 748, 1883. [Ky.] Murphy v. Com. 15 Ky. L. Rep. 215, 22 S. W. 649, 1893. [Mo.] State v. Morrison, 104 Mo. 638, 16 S. W. 492, 1891. This view is approached in Kin- ney v. State, 108 Ill. 519, 1884, where it is held that the defendant’s be- lief in danger must be “well ground- ed;” which is tantamount to saying that if the defendant’s reasoning be defective, he cannot set up his be- lief as a full defense. If this de- fectiveness be imputable to negli- gence, the distinction is the same as in the text. In People v. Dann, 53 Mich. 490, 51 Am. Rep. 151, 19 N. W. 159, 1884, Sherwood, C. J., giving the opinion of the court, said: “In such eases (of self-defense) courts can- not and will not undertake to pass upon the surroundings with very great nicety in determining just when, and at what particu- lar stage of the affray, the defend- ant may be justified in using a dead- ly weapon in defending his person. Every case must be governed by its own particular circumstances, and they vary to such an extent, and de- pend so much upon appearances and incidents occurring at the moment of greatest danger, that he who encoun- ters it must, to a very great extent, be left to determine for himself the means necessary to be used for his own protection, and, in reviewing the discretion used by him, no great amount of speculation and refine- ment as to probabilities can safely be indulged in by the court.” 2Crown Cases, p. 299. See this case discussed supra, § 55. To same effect, see Guice v. State, 60 Miss. 714, 1883. 8 Shorter’s Case, 2 N. Y. 193, 51 Am. Dec. 286, 1849. CRIMINAL LAW. [g 623 794 than a case of manslaughter, when, if a man may not act upon appearances, it was a plain case of murder.” In other words, when a man kills another in an honest error of fact, murder is out of the question. The only issue is, was this error negli- gent or non-negligent? If negligent, the killing is manslaugh- ter. If non-negligent, excusable homicide. The same distinction is taken by Judge Bronson in the opinion last cited; and on this distinction rests the whole of Judge Bron- son’s argument,—an argument which, as we have seen, has been subsequently adopted by several American courts. With pe- culiar clearness is this brought out by Judge Campbell, of Mich- igan, in his opinion in Pond’s case:* “The law,” so he cor- rectly states, “while it will not generally excuse mistakes of law (because every man is bound to know that), does not hold men responsible for a knowledge of facts, unless their ignorance arises from fault or negligence.” ® § 624. Apparent attack, to be an excuse, must have ac- tually begun and must be violent. ‘The belief that a per- son designs to kill me,” says Ruffin, C. J.,? “will not prevent my killing him from being murder, unless he is making some at- tempt to execute his design, or at least is in apparent situation so to do, and thereby induces me to think that he intends to do it immediately.” * 4See supra, § 620; and see Dar- ling v. Williams, 35 Ohio St. 58, 1878. 5 See, also, other cases cited supra, §§ 468 et seq. 1State v, Scott, 26 N. C. (4 Ired. L.) 509, 42 Am. Dec. 148, 1844. See Bowlin v. Com. 94 Ky. 391, 22 S. W. 543, 1893. Circumstances must justify rea- sonable belief in mind of accused that the homicide is necessary. Oliv- er v. State, 17 Ala. 587, 1850. Coward’s unreasonable fear for his own safety will not justify a homi- cide. Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62, 1859. See Kendrick v. State, 55 Miss. 436; Stoneman v. Com. 25 Gratt. 887; and notes in 29 Am. St. Rep. 257, and 74 Am. St. Rep. 722. 2[Fed.] United States v. Outer- bridge, 5 Sawy. 620, Fed. Cas. No. 15,978, 1868. [Ala.] Lewis v. State, “The situation spoken of, however,” as is well 51 Ala. 1, 1874; Rogers v. State, 62 Ala. 170, 1878; De Arman v. State, 71 Ala. 351, 1882; Sylvester v. State, 72 Ala. 201, 1882; Karr v. State, 100 Ala. 4, 46 Am. St. Rep. 17, 14 So. 851, 1894. [Cal.] People v. Camp- bell, 30 Cal. 312, 1866; People v. Herbert, 61 Cal. 544, 1882; People v. Raten, 63 Cal. 421, 1888. [Ga.] Stiles v. State, 57 Ga. 183, 1876. [Ind.] Creek v. State, 24 Ind. 151, 1865. [Kan.] State v. Horne, 9 Kan, 119, 1872. [Ky.] Farris v. Com. 14 Bush, 362, 1878. [Mich.] Pond v. People, 8 Mich. 150, 1860. [Miss.] Cotton v. State, 31 Miss. 504, 1856; Evans v. State, 44 Miss. 762, 1870; Scott v. State, 56 Miss. 287, 1879. [Mo.] State v. Hays, 23 Mo. 287, 1856. [Mont.] State v. Rolla, 21 Mont. 582, 55 Pac. 523, 1898. [Nev.] State v. Ferguson, 9 Nev. 114, 116, 1874. [N. ¥.] Shorter v. Peo- ple, 2 N. Y. 193, 51 Am. Dec. 285, § 624} HOMICIDE. 795 observed by Chilton, C. J., when citing the above passage,® is not that he (the deceased) has the means at hand of effecting a deadly purpose, but that by scme act or demonstration he in- dicates, at the time of the killing, a present intention to carry out such purpose, thereby inducing a reasonable belief, on the part of the slayer, that it is necessary to deprive him of life in order to save his own.” It is true that a person who insanely believes himself to be attacked, and strikes down the supposed assailant, is not responsible for murder. But if a man be sane, he is not justified in repelling by force an attack which is not at least apparently imminent.* And this is for two reasons. In the first place, if the attack be not apparently imminent, his duty is, as has been seen, to appeal to the law to arrest the sup- posed offender and to hold him to keep the peace.® In the second place, a person who undertakes to use a dangerous weap- on, to repel an attack which is not at least apparently imminent, cannot relieve himself of the imputation of negligence. For he has used a dangerous weapon without due circumspection, and thus makes himself responsible for the consequences. As one negligently killing another, he is guilty of manslaughter. A violent and perilous defense, also, can only be employed in cases where there is an apparently violent and perilous attack.” To sustain such a defense, however, the actual striking of a blow is not necessary,® nor is it even requisite that the assailant be 1849; Patterson v. People, 46 Barb. 625, 1866; People v. Lamb, 54 Barb. 342, 1865; People v. McLeod, 1 Hill, 377, 37 Am. Dec. 328, 1841. [N. C.] State v. Morgan, 25 N. C. (8 Ired. L.) 186, 38 Am. Dec. 714, 1842. [Pa.] Com. v. Drum, 58 Pa. 9, 1868. [Tenn.] Williams v. State, 3 Heisk. 376, 1872. [Tex.] Lander v. State, 12 Tex. 462, 1854; Hinton v. State, 24 Tex. 454, 1859; Gonzales v. State, 31 Tex. 495, 1868; Marnoch v. State, 7 Tex. App. 269, 1879; Richardson v. State, 7 Tex. App. 486, 1879. [Va.] Stoneman v. Com. 25 Gratt. 887, 1874. An overt act of deceased indica- tive of felonious intent is necessary to justify a homicide in self-defense. Karr v. State, 100 Ala. 4, 46 Am. St. Rep. 17, 14 So. 851, 1894; Stone- man v. Com. 25 Gratt. 887, 1874. 3 Harrison v. State, 24 Ala. 67, 60 Am. Dec. 450, 1853. 4State v. Newcomb, 1 Houst. Crim. Rep. 66, 1858; State v. Vines, Houst. Crim. Rep. (Del.) 424, 1874. 5 See supra, §§ 131, 617. * 6 Judge v. State, 58 Ala. 406, 29 Am. Rep. 757, 1877; King v. State, 13 Tex. App. 277, 1882. 7Supra, § 134; infra, § 629. [Eng.] Reg. v. Bull, 9 Car. & P. 22, 1839. [Mass.] Com. v. Drew, 4 Mass. 391, 1808. [N. J.] State v. Zellers, 7 N. J. L. 220, 1824. [N. Y.] Shorter v. People, 2 N. Y. 193, 51 Am. Dee. 286, 1849. 8 State v. McDonald, 67 Mo. 13, 1877. CRIMINAL LAW. [§ 624 796 within striking distance,’ if the attack be apparently imminent. But mere preparations of an expected assailant, not implying an imminent attack, will be no defense.” § 625. Right extends to parent and child, husband and wife, master and servant. The right of self-defense, by the English common law, is extended to the relationships of parent and child, of husband and wife, and of master and servant. “Under this excuse of self-defense the principal civil and do- mestic relations are comprehended; therefore, master and serv- ant, parent and child, husband and wife, killing an assailant in the necessary defense of each, respectively, are excused, the act of the relation being construed the same as the act of the party himself.” ? 9¥Fortenberry v. State, 55 Miss. 403, 1877. 10 Cartwright v. State, 14 Tex. App. 486, 1883. 14 Bl. Com. 186; 1 Hale, P. C. 484; supra, §§ 588, 606, [Eng.] Hand- cock v. Baker, 2 Bos. & P. 260, 5 Re- vised Rep. 587; Reg. v. Harrington, 10 Cox, C. C. 370, 1866 (parent and child). [Ala.] Suell v. Derricott, 161 Ala. 259, 23 L.R.A.(N.S.) 996, 49 So. 895,18 A. & E. Ann. Cas. 636, 1909. [Ark.] Wheatley v. State, 93 Ark. 409, 125 S. W. 414, 1910. [Fla.] Hathaway v. State, 32 Fla. 56, 13 So. 592, 1893 (master and servant). [Ga.] Patterson v. State, 134 Ga. 264, 67 S. E. 816, 1910; Brown v. State, 185 Ga. 656, 70 S. E. 329, 1911; Warnack v. State 3 Ga, App. 590, 60 S. E. 288, 1908; Gillis v. State, 8 Ga. App. 696, 70 S. E. 53, 1911. [Ind.] Dukes v. State, 11 Ind. 557, 71 Am. Dec. 370, 1858. [Ky.] Estep v. Com. 86 Ky. 39, 9 Am. St. Rep. 260, 4 S. W. 820, 1887; Stan-. ley v. Com. 86 Ky. 440, 9 Am. St. Rep. 305, 6 8S. W. 156, 1887; Camp- bell v. Com. 88 Ky. 402, 21 Am. St. Rep. 348, 11 S. W. 290, 1889; Tap- scott v. Com. 140 Ky. 5738, 131 S. W. 487, 1910; Arnett v. Com. 137 Ky. 270, 125 S. W. 700, 1910; Watkins v. Com. 123 Ky. 817, 97 S. W. 740, 1906. [Mich.] Patten v. People, 18 Mich. 814, 100 Am. Dec. 173, 1869 (parent and child). [Miss.] Staten v. State, 30 Miss. 619, 1856 (hus- This defense, however, cannot be set up by a son band and wife). [Mo.] State v. Ken- nedy, 207 Mo. 528, 106 S. W. 57, 1907. [N. C.] State v. Brittain, 89 N. C. 482, 1883; State v. Cox, 153 N. C. 638, 69 S. E. 419, 1910. [Or.] State v. Young, 52 Or. 227, 18 L.R.A.(N.S.) 688, 182 Am. St. Rep. 689, 96 Pac. 1067, 1908; State v. Walsworth, 54 Or. 371, 103 Pac. 516, 1909. [S. C.] State v. Cook, 78 S. C. 2538, 15 L.R.A.(N.S.) 1018, 125 Am. St. Rep. 788, 59 S. E. 862, 13 A. & E, Ann, Cas. 1051, 1907. [Tex.] Bice v. State, 51 Tex. Crim. Rep. 133, 100 S. W. 949, 1907; Early v. State, 51 Tex. Crim. Rep. 382, 123 Am. St. Rep. 889, 103 S. W. 868, 1907; Griffin v. State, 67 Tex. Crim. Rep. 280, 122 S. W. 553, 1909; Burns v. State, 58 Tex. Crim. Rep. 463, 125 S. W. 901, 1910; Johnson v. State, 60 Tex. Crim. Rep. 512, 132 S. W. 804, 1910. Brother may commit homicide in defense of brother. [Ark.] Wheatley v. State, 93 Ark. 409, 125 S. W. 414, 1910. [Ga.] Warnack v. State, 3 Ga. App. 590, 60 S. E. 288, 1908. [Ky.] Arnett v. Com. 137 Ky. 270, 125 S. W. 700, 1910. [Tex.] Griffin v. State, 57 Tex. Crim. Rep. 280, 122 S. W. 5538, 1909; Burns v. State, 58 Tex. Crim. Rep. 463, 125 S. W. 901, 1910; Johnson v. State, 60 Tex. Crim. Rep. 512, 132 S. W. 804, 1910. Right in defense of brother does not depend on whether such brother, assaulted, is himself blameless, if § 625] assisting a father in a wanton assault.” the brother interposing is blameless. Warnack v. State, 3 Ga. App. 590, 60 S. E. 288, 1908. Brother-in-law, relationship of, does not confer the legal right of mutual self-defense. Gillis v. State, 8 Ga. App. 696, 70 S. E. 53, 1911. Family may be defended, but hus- band and father is not justified in deliberately killing a man for past act of improper conduct toward daughter or wife. Patterson v. State, 184 Ga. 264, 67 S. I. 816, 1910. Guest may defend his host’s house. Suell v. Derricott, 161 Ala. 259, 23 L.R.A.(N.S.) 996, 49 So. 895, 18 A. & E. Ann. Cas. 636, 1909. Near relation assisting one in dan- ger of death or serious bodily harm from opponent in combat can set up only such defense, as his protect- ing relative could have set up had he committed the homicide. State v. Cook, 78 S. C. 253, 15 L.R.A. (N.S.) 1013, 125 Am. St. Rep. 788, 59 S. E. 867, 13 A. & HE, Ann. Cas. 1051, 1907. Relative may be defended from an assault or against an officer using undue force in seeking to make his arrest. early v. State, 51 Tex. Crim. Rep. 382, 128 Am. St. Rep. 889, 103 S. W. 868, 1907. See Wat- kins v. Com, 123 Ky. 817, 97 S. W. 740, 1906. Nephew may be defended by uncle against person seeking to overcome or mistreat him, but uncle in doing so must use no more force than is necessary for the protection of the nephew’s life and person. Bice v. State, 51 Tex. Crim. Rep. 133, 100 S. W. 949, 1907. Parent may protect minor daugh- ter from debauchery same as hus- band may defend chastity of wife. Brown v. State, 185 Ga. 656, 70 S. KE. 329, 1911. As to attacks on those attempt- ing chastity of wife or child, see su- pra, §§ 587, 588. Relationship not restricted to the ties of affinity and consanguinity, but includes any tie, even if it be ephemeral which binds the parties HOMICIDE. 797 Nor can it be extended together. Gillis v. State, 8 Ga. App. 696, 70 S. E. 53, 1911. This rule held not to apply to an accused living in state of adultery with woman at time deceased com- mitted assault upon her. State v. Kennedy, 207 Mo. 528, 106 S. W. 57, 1907. Son may defend parent assailed in his presence in the same manner that the parent may defend himself, and may rely upon the plea of self-de- fense in a case where the parent, having committed the homicide, could have set up that defense. Tap- scott v. Com. 140 Ky. 573, 131 S. W. 487, 1910; State v. Walsworth, 54 Or. 371, 103 Pac. 516, 1909. Has right to protect parent to ex- tent parent himself could have used force, and if he uses excessive force, he cannot plead self-defense in a prosecution for the homicide of the assailant of his parent. State v. Cox, 153 N. C. 638, 69 S. E. 419, 1910. Wife may be defended by hus- band, where assaulted in their own house, and where husband at the time believing, on reasonabie grounds, that she is in immediate danger of losing her life, or of suf- fering great bodily harm, may kill her assailant. Estep v. Com, 86 Ky. 39, 9 Am. St. Rep. 260, 4 8S. W. 820, 1887. Husband committing homicide in defense of chastity of wife; the act must be done to prevent a present and impending violence thereof, and be reasonably necessary to prevent its accomplishment. State v. Young, 52 Or. 227, 18 L.R.A.(N.S.) 688, 132 Am. St. Rep. 689, 96 Pac. 1067, 1908. As to attack on those attempting chastity of wife, etc., see supra, §$ 587, 588. In Mississippi the Code extends the right “to the defense of any other human being.” Brabston v. State, 68 Miss. 208, 8 So. 326, 1890. See Sullivan v. Com. 13 Ky. L. Rep. 869, 18 S. W. 530, 1892; State v. Harrod, 102 Mo. 590, 15 S. W. 373, 1890. 2Sharp v. State, 19 Ohio, 379, 1850; Bristow’s Case, 15 Gratt. 634, 1859. Supra, § 604. 798 CRIMINAL LAW. [§ 625 so as to exonerate collateral relatives who undertake to punish assailants of such relatives.’ It is important, also, to distin- guish this right from that of the duty of interference to prevent a felony, to be hereafter considered. The duty of interfering to prevent a felony is, as we will see, not limited by the relation- ship of the party interfering to the party attacked, but depends on the fierceness of the attack and the probability that by such intervention alone could the felony be prevented.* The right to defend husband or wife, parent or child, master or servant (for to these relationships is the right limited), is conditioned, not by the extremity to which the person assisted is reduced, but by the resentment naturally felt at an attack on one whom .the party intervening is bound by natural or social law to de- fend. The two defenses may be sometimes blended. A parent, or wife, or master may be defended from an attack which would be in itself felonious. But when such relationships do not ex- ist, there must be an apparent imminent ‘fatal assault to justify the intervener in taking the assailant’s life; whereas, when these relationships do exist, the intervener has the same right as would the person aided, as well as the palliation of hot blood to the same extent as has such person aided.® Whether the same right extends to the relationship of brother to brother may be questioned. That it does has been asserted by a learned judge of West Virginia. ‘What one may lawfully do in defense of himself when threatened with death or great bodily harm,” so it was said, “he may do in behalf of a brother; but if the brother was in fault in provoking the assault, that brother must retreat as far as he safely can, before his brother would be justified in taking the life of his assailant in his de- 3 Dyson v. State, 14 Tex. App. 454, States v. Wiltberger, 3 Wash. ©. C. 3 16,738, 1819. 1883. 4Infra, §§ 626, 636. [Ga.] Irby v. State, 32 Ga. 496, 1861. [Iowa] State v. Westfall, 49 Iowa, 328, 3 Am. Crim. Rep. 343, 1878. [Mich.] People v. Curtis, 52 Mich. 616, 18 N. W. 385, 1884. [Pa.] Com. v. Daley, 2 Clark (Pa.) 361, 1844. As to interfering to protect houses, see infra, § 636. 5See supra, §§ 595, 612, 624; infra, §§ 632, 633, 636. [Eng.] Coop- er’s Case, Cro, Car. 544; Semayne’s Case, 5 Coke, 92. [Fed.] United 515, Fed. Cas. No. [Ind.] De Forest v. State, 21 Ind. 23, 1863; Cheek v. State, 35 Ind. 492, 1871; Waybright v. State, 56 Ind. 122, 1877. [Mass.] Com. v. Riley, Thacher, Crim. Cas. 471, 1837. [Mich.] People v. Lilly, 38 Mich. 270, 1878. [N. Y.] Curtis v. Hubbard, 1 Hill, 336, 1841, 4 Hill, 437, 40 Am. Dec. 292, 1842. [N. C.] State v. Johnson, 75 N. C. 174, 1876. [Tex.] Branch v. State, 15 Tex. App. 96, 1883. § 626] HOMICIDE. 799 fense of the brother. But if the brother was so drunk as not to be mentally able to know his duty to retreat, or was physically unable to retreat, a brother is not bound to stand by and see him killed or suffer great bodily harm, because he does not under such circumstances retreat.” ° Where from any cause the brother interfering was charged with the duty of protecting the brother assailed, then the inter- ference of the former may be sustained. But unless there were such duty, the reasoning which sustains a brother’s interference would sustain the interference of a cousin or a friend. A line must be somewhere drawn, unless society is to be resolved into an association for mutual assistance in fights; and the only line that is intelligible, and is consistent with the general analogies of the law, is that which makes the test that of duty to assist.’ No undue burden is cast by the adoption of this distinction upon those who expose themselves in the effort to prevent a felony from being committed. Persons so intervening, as will be seen in the next section, are protected as far as is required by reason and justice. But this right is distinguishable from the right of self-defense. The right of self-defense justifies the anticipating a probable attack by counter-preparations ; the right of prevention of felonies does not justify such counter-prepara- tions. To confound the two would be to authorize every man to go armed to prevent wrongs being done by anybody else.® 2. Prevention of felony. § 626. Bona fide and non-negligent belief that a violent felony is in progress will excuse a homicide in its resist- 29 Tex. App. 236, 25 Am. St. Rep. 723, 15 S. W. 722, 1890. Father-in-law killing son-in-law 6 See [Ala.] Whatley v. State, 91 Ala. 108, 9 So. 286, 1891. [Ky.] Stanley v. Com. 86 Ky. 440, 6 Am. St. Rep. 305, 6 S. W. 155, 1887; Campbell v. Com. 88 Ky. 402, 21 Am. St. Rep. 488, 11 S. W. 290, 1889; Smith v. Com. 16 Ky. L. Rep. 112, 26 S. W. 588, 1894. [Ind.] Dukes v. State, 11 Ind. 557, 71 Am. Dec. 370, 1858. [Mich.] People v. Curtis, 52 Mich. 616, 18 N. W. 385, 1884. [Miss.] Dyson v. State, 26 Miss. 362, 1853. [W. Va.] Johnson, J., State v. Greer, 22 W. Va. 800, 819, 1883. [Tex.] Snell v. State, while latter is inflicting cruel and inhuman punishment upon daughter of former, which punishment en- dangers her life, is guilty of man- slaughter only. Campbell v. Com. 88 Ky. 402, 21 Am. St. Rep. 348, 11 S. W. 290, 1889. See Dukes v. State, 11 Ind. 557, 71 Am. Dec. 370, 1858; Stanley v. Com. 86 Ky. 440, 9 Am. St. Rep. 305, 6 S. W. 155, 1887. 7See infra, § 1880. 81 East, P. C. chap. 5, § 58, p. 290; Johnston’s Case, 5 Gratt. 660. CRIMINAL LAW. [§ 626 800 ance. A bona fide belief by the defendant that a violent fel- ony is in the process of commission, which can only be arrested by the death of the supposed felon, makes the killing excusable homicide, though if such belief be negligently adopted by the defendant, then the killing is manslaughter.’ Levett’s Case, which has been already discussed, rests on this principle.? Lev- ett, under the erroneous but honest belief that A was attempting a burglary, killed A. It was adjudged excusable homicide in Levett, though if it had appeared that Levett had been negli- gent in arriving at this conclusion it might have been manslaugh- ter.® No doubt we frequently meet with expressions to the effect that to excuse homicide in such cases it must be shown that a felony was in fact about to be committed.* 1As to burden of proof, Wharton, Crim. Ev. § 335. Prevention of felony—Force by- standers may use, This has been sometimes explained by the fact that all felonies are capital at com- mon law. But the rule still exists, though capital punishment is now abolished in all cases except those of murder and treason. The true reason is, that to prevent an atro- cious wrong from being committed, bystanders are entitled to use all necessary force. [Ala.] Bostic v. State, 94 Ala. 45, 10 So. 602, 1892. [Ga.] Crawford v. State, 90 Ga. 701, 35 Am. St. Rep. 242, 17 S. E. 628, 9 Am, Crim. Rep. 587, 1892. [Ky.] Nantz v. Com. 14 Ky. L. Rep. 592, 20 S. W. 1096, 1893. [Tex.] Saens v. State, — Tex. Crim. Rep. —, 20 S. W. 737, 1892. —Attempt to commit felony by violence or surprise on person, habi- tation, or property of another may be repelled with force, and if the taking of the life of the assailant is necessary, the killing is justifiable. [Ala.] Noles v. State, 26 Ala. 31, 62 Am. Dec. 711, 1855; Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282, 1853. [Iowa] State v. Thomson, 9 Iowa, 188, 74 Am. Dec. 342, 1859. [N. C.] State v. Rutherford, 8 N. C. (1 Hawks) 457, 9 Am. Dec. 658, 1821. —Killing adulterer in act with wife is manslaughter. State v. Young, 52 Or. 227, 18 L.R.A.(N.8.) see But such ex- 638, 132 Am. St. Rep. 689, 96 Pac. 1067, 1908. —Killing to prevent seduction of wife by artifice or fraud; husband is guilty of manslaughter. State v. Young, 52 Or. 227, 18 L.R.A.(N.S.) 688, 132 Am. St. Rep. 689, 96 Pac. 1067, 1908. —Felony already committed; party may not be lawfully slain. State v. Varnado, 126 La. 732, 52 So. 1006, 1910. —Homicide to prevent atrocious crime, justifiable by the law of nature, as well as by the common- Jaw rule. Suell v. Derricott, 161 Ala. 259, 23 L.R.A.(N.S.) 996, 49 So. 895, 18 A. & E, Ann. Cas. 636, 1909. Circumstances must be such as to excite fears of a reasonable man, and the homicide must be committed in good faith, to prevent the perpe- tration of the attempted felony. McAllister v. State, 7 Ga. App. 541, 67 S. E. 221, 1910. 2See supra, §§ 55, 532, 595. 8 Supra, § 6238. 4East, P. C. p. 300 [Eng.] Adams v. Moore, 2 Selwyn, N. P. 934. [Ga.] Mitchell v. State, 22 Ga. 211, 68 Am. Dec. 493, 1857. [Miss.] Staten v. State, 30 Miss. 619, 1856. [N. Y.] Burns v. Erben, 40 N. Y. 468, 1869; Hawley v. Butler, 54 Barb. 490, 1868. [N. C.] State v. Roane, 18 N. C. (2 Dev. L.) 58, 1828; State v. Morgan, 25 N. C. (3 Ired. L.) 186, 38 Am. Dec. 714, 1842. [Pa.] Brooks v. § 627] HOMICIDE. 801 pressions are not to be strained to mean more than that a felony is apparently about to be committed. In what case can more be shown? Even supposing we see a known pickpocket seizing a purse, is it not possible that in such case, even at the last moment, the thief may hesitate? Can we, as to a future event, reach to anything more than a high probability? If so, we may correctly accept, in this as well as in the analogous case of self-defense, the position that if A, honestly and without negli- gence on his part, believe that B is in the process of committing a violent felony which can only be arrested by B’s death, A is excused in killing B.* § 627. Right cannot usually be exercised when there is an opportunity to secure the offender’s arrest. We must repeat, however, that this principle cannot be extended so as to justify anticipating the attack in cases where there is an oppor- tunity to secure the prevention of the offense in due course of law.’ It is on this ground that we must refuse assent to a Georgia case, in which it was ruled excusable in A to shoot in the morning B, who on the previous night had attempted to have carnal intercourse with A’s wife.’ Com. 61 Pa. 352, 100 Am. Dec. 645, 1869. Burden of proof is on accused to show that he acted in good faith, and after the use of all other reasonable means within his power to otherwise prevent the crime, and was without fault. Mitchell v. State, 22 Ga. 211, 63 Am. Dec. 493, 1857. —Intent with which deceased went to accused’s house, with others, is important; and to ascertain such intent it is proper to ask a person who accompanied him as to the ‘conversation that took place between or among them, while they were to- gether, in relation to the subject- matter in dispute, and the purpose in going to the house. Stewart v. ‘State, 19 Ohio, 302, 53 Am. Dec. 426, 1850. 5 See [Cal.] People v. Payne, 8 Cal. 341, #1857. [Ga.] McPherson v. State, 22 Ga. 478, 1857. ([Ky.] Payne v. Com. 1 Met. (Ky.) 370, 1858. [N. Y.] Ruloff v. People, 45 N. Y. 218, 1871. Crim. L. Vol. I.—51. No doubt had B’s con- In Storey v. State, 71 Ala. 339. 1882, the court adopted the follow- ing from Wharton on Homicide, § 539: “The rule (above stated) does not authorize the killing of persons attempting secret felonies not ac- companied by force;” and _ see supra, § 562. 1 Supra, §§ 129, 617. Seé State v. Levigne, 17 Nev. 435, 30 Pac. 1084, 1883. Texas has special statute regu- lating this subject. Whitten v. State, 29 Tex. App. 504, 16 8S. W. 296, 1891. 2 Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630, 1860. The Roman law is clear on this pe L. 5, pr. D. ad L. Aquil. (9. sin autem, quum posset qrpeteunece (furem), maluit occi- dere, magis est, ut iniuria fecisse videatur, « ergo et Cornelia tenebitur. C. 18. de homicid. (5. 12.) quamvis vim vi repellere omnes lezes et omnia iuria permittant: quia tamen id debet fieri cum moderamine inculpatae tutelae, non ad sumendam 802 CRIMINAL LAW. L§ 627 duct in the morning amounted to a renewal of the attempt, show- ing that force was intended, then A would have been excused. But as the evidence showed that B’s offense in the morning consisted simply in taking his seat at the same breakfast table, at a public house, with the wife, there was no such evidence of the imminency of the danger as justified A in having recourse to arms.® It is otherwise, however, when A discovers B enter- ing the bed-chamber of A’s wife with the apparent intention of ravishing the latter. And it is also otherwise when the appeal to the law would be ineffective.® Of course, hot blood could continue to exist, even after a day’s delay, but this, which would sustain a conviction of manslaughter, is very different from a defense of excusable homicide, ending in an acquittal. And the question of duration of hot blood is to be determined by the temperament of the party aggrieved. The sense of outrage may unseat reason for weeks; and, as long as such a condition lasts, the cool deliberation necessary to constitute murder in the first degree cannot be assumed.® § 628. —But this does not excuse pursuit and killing when danger is over. If the felonious attempt be abandoned and the offender escape, the killing of the offender without war- rant, on a pursuit organized after such escape, is murder. In such case the supposed offender is guilty only of an attempt at felony,—an attempt qualified and reduced by the fact of abandonment more or less voluntary.’ The right of pursuit, heretofore touched upon, does not, therefore, apply to such case; and even if it did, it will not avail to defend a pursuer who has the opportunity of recourse to the law.? “A well- grounded belief,” says Henderson, J., in a North Carolina case,’ “that a known felony was about to be committed, will extenuate a homicide committed in prevention of the supposed crime,— vindictam, sed ad iniuriam propul- v. State, 30 Miss. 619, 1856. [N.C.] sandum, non videtur idem sacerdos and see State v. Craton, 28 N. C. (6 a pena homicidii penitus excusari. Ired. L.) 164, 1845. ee ieee de See also, infra, § 630. 3 State v. Samuel, 48 N. C. (3 5Supra, §§ 129, 618. Jones, L.) 74, 64 Am. Dec. 596, 1855; 6 Supra, § 608. State v. Neville, 51 N. C. (6 Jones, 1See supra, § 612. L.) 482, 1859; Parker v. State, 31 2See supra, §§ 537, 559, 561. Tex. 132, 1868. 3 State v. Rutherford, 8 N. C. (1 4[Ga.] Futch v. State, 90 Ga. 472, Hawks) 457, 9 Am. Dec. 658, 1821. 16 S. E. 102, 1892. [Miss.] Staten § 630] HOMICIDE. $03 and this upon a principle of necessity,* but when that necessity ceases and the supposed felon flies, and thereby abandons his supposed design, a killing in pursuit, however well grounded the belief may be that he had intended to commit a felony, will not extenuate the offense of the prisoner.” So in a subsequent case,” it was justly said by the same learned judge, that “the law authorizes the killing of one who is in the act of committing a forcible felony, and even one who appears to be in the act of doing so, for the purpose of prevention, not by way of punish- ment.” This is of course consistent with the position that a person detected in an attempt to commit a felony may be ar- rested at once, for the purpose of being carried before a magis- trate; and if arrested in the nighttime may be lawfully detained without a warrant until access to a magistrate may be had.® But after a larceny is completed, it is manslaughter for a third person, acting without warrant, to kill the felon in order to prevent his escape.” § 629. —Nor an unnecessary killing. Nor is killing ex- cusable if the crime resisted could be apparently prevented by less violent action.’ Thus, if a party attempting a felony be not armed (either actually or apparently) with a deadly weap- on, or does not possess (either actually or apparently) such superior strength and determination as to enable him to effect his purpose unless he be killed, then killing him by a deadly weapon is not excusable.® § 630. Violent and flagrant offenses may thus be re- sisted. It has already been seen that a person when assailed 4See to this point Ruloff v. People, ment of the crime. State v. Harper, 45 N. Y. 218, 1871; Com. v. Pipes, 158 Pa. 25, 27 Atl. 839, 1893. See supra, § 134. 5 State v. Roane, 13 N. C. (2 Dev. L.) 58, 1828. 6 Rex v. Hunt, 1 Moody, C. C. 93, 1825. See supra, §§ 589, 617. 7 Supra, § 537; Lacy v. State, 7 Tex. App. 403, 1879. 1 Absolute certainty what force is necessary in resisting an attempt to commit a felony, none; the person su resisting is required not to use more force than it seems to him to be reasonable to prevent the accomplish- 149 Mo, 514, 51 S. W. 89, 1899. This does not justify vindictive excessive counter blows. See Reg. v. Knock, 14 Cox, C. C. 1, 1877. Supra, § 612. 2[Eng.] Rex v. Scully, 1 Car. & P. 319, 28 Revised Rep. 780, 1824; Reg. v. Bull, 9 Car. & P. 22, 1839; ‘Rex v. Longden, Russ. & R. C, C. 228, 1818. [Miss.] McDaniel v. State, 8 Smedes & M. 401, 47 Am. Dec. 93, 1847. [N. C.] State v. Rutherford, 8 N. C. (1 Hawks) 457, 9 Am. Dee. 658, 1821; State v. Roane, 13 N. C. (2 Dev. L.) 58, 1828. See also supra, §§ 134, 624. 804 CRIMINAL LAW. [§ 630 is excused if, under the honest and non-negligent belief that an assailant is about to kill him or inflict on him some grievous bodily hurt, he kill such assailant as the only way of prevent- ing the immediate commission of the offense. It has been seen, also, that this same excuse applies to the prevention of any other forcible and atrocious attack on the rights of the assailed. It certainly applies to attempts to commit a violent felony on a third person; and although generally the right is limited to the prevention of such felonies, yet as riots are often productive of the most serious crimes, and as it is the duty of a private citi- zen to interfere for the suppression of riots, so if a riot can only be apparently suppressed by the taking of life, taking of life, even by a private citizen, will under such circumstances be excusable. It would seem, however, that the right does not authorize the killing of persons attempting secret felonies, not accompanied with force.* , § 631. Trespass no excuse for killing trespasser. We have already seen? how far trespass is a palliation. We may here repeat that it is murder for A to deliberately kill B for merely trespassing on A’s property, A at the time knowing that only a mere trespass was intended.” 1See supra, § 626; Minton v. Com. 79 Ky. 461, 1881; King v. State, 13 Tex. App. 277, 1882. 2Supra, § 626; Dill v. State, 25 Ala. 15, 1853. Entering bedroom to ravish—Kill- ing by husband.—Thus the entrance by A into the bedroom of B’s wife with the apparent intention of ravishing the latter, is an attempt at felony excusing B in killing A. Staten v. State, 30 Miss. 619, 1856. See supra, §§ 588, 625. Roman law as to rape. In respect to rape, the Roman law is clear to this point. “D. Hadrianus rescripsit, eum, qui strupram sibi vel suis per vim inferentem occidit, dimitten- dum.” L,I. § 4, ad leg. Corn. de sic. D. 48, 4. There must be an actual assault. The belief that the deceased was at- tempting to seduce by administering drugs is no justification. People v. aSee 39 Mich. 236, 33 Am. Rep. 380, The same rule applies, 8 [Mich.] Pond v. People, 8 Mich. 150, 1860. [N. Y.] Phillips v. Trull, 11 Johns. 486, 1814. [Pa] Respub- lica v. Montgomery, 1 Yeates, 419, 1785. See supra, §§ 534, 555; infra, § 1871; Wharton, Crim. Pl. & Pr. § 16. 4 [Iowa] State v. Vance, 17 Iowa, 144, 1864. [Mich.] Pond v. People, 8 Mich. 150, 1860. [S. C.] Priester v. Augley, 5 Rich. L. 44, 1851. 1Supra, § 590. Killing a person dressed up as a ghost is murder when the intrusion was a mere trespass, see R. v. Smith, 1 Russell, Crimes, 546. 2[Fed.] Wallace v. United States, 162 U.S. 466, 40 L. ed. 1039, 16 Sup. Ct. Rep. 859, 1896. [Ala.] Oliver v. State, 17 Ala. 588, 1850; Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282, 1877; Harrison v. State, 24 Ala. #7. 60 Am. Dec. 450, 1853; Noles x State, 26 Ala. 31, 62 Am. Dee. 711, 1855; Mattison v. State, 55 Ala. 224, § 632] HOMICIDE. 805 mutatis mutandis, to the vindication of the right to personal property.’ If the killing of the trespasser in either case take place in the passion and heat of blood, the killing is manslaugh- ter, but unless it be in resisting robbery, it is not justifiable.* The reason is, that in the given cases of trespasses, the killing was unnecessary, the party killing knowing that only a trespass, or at the most a trivial larceny, was intended.® § 632. Owner may resist to death violent removal of property, or attack upon his rights; but not an attack upon his honor. On the other hand, when the defendant was not himself the aggressor, but was defending his own prop- erty from an assailant, he has a right to use as much force as is necessary to prevent its forcible illegal removal, or his exclusion from its use.? 1876. [Cal] People v. Flanagan, 60 Cal. 2, 44 Am. Rep. 52, 1881. People v. Stone, 82 Cal. 36, 22 Pac, 975, 1889; People v. Hecker, 109 Cal. 451, 30 LRA. 403, 42 Pac. 307, 1895. [Del.] State v. Buchanan, Houst. Crim. Rep. (Del.) 79, 1859; State v. Woodward, Houst. Crim. Rep. (Del.) 455, 1874; State v. Warren, 1 Marv. (Del.) 487, 41 Atl. 190, 1893. [Ga.] Monroe v. State, 5 Ga. 85, 1848; Keener v. State, 18 Ga. 194, 63 Am. Dec. 269, 1855. [Idaho] State v. Dixon, 7 Idaho, 518, 63 Pac. 801, 1901. [ll] Davison v. People, 90 Ill. 221, 1878; Powers v. People, 42 Ill. App. 427, 1891. [Iowa] State v. Vance, 17 Iowa, 138, 1864; State v. Kennedy, 20 Iowa, 569, 1860. [Mass.] Com. v. Drew, 4 Mass. 391, 1808. [Mich.] People v. Horton, 4 Mich. 67, 1856. [Minn.] State v. Shippey, 10 Minn. 223, Gil. 178, 88 Am. Dec. 70, 1865. [Miss.] McDaniel v. State, 8 Smedes & M. 401, 47 Am. Dec. 93, 1847; Lambeth v. State, 23 Miss. 322, 1852. [Mo.] State v. Taylor, 143 Mo. 150, 44 S. W. 785, 1897; State v. Mat- thews, 148 Mo. 185, 71 Am. St. Rep. 594, 49 S. W. 1085, 11 Am. Crim. Rep. 681, 1899. [N. Y.] People v. Divine, 1 Edm. Sel. Cas. 594; People v. Cole, 4 Park Crim. Rep. 35, 1857. [N. C.J State v. Morgan, 25 N. C. (3 Tred. L.) 186, 38 Am. Dec. 714, 1842; State v. McDonald, 49 N. C. (4 Jones, It is true that when the wrong is slight, or can L.) 19, 1856; State v. Brandon, 53 N. C. (8 Jones, L.) 463, 1862. As to killing trespasser, see notes in 71 Am. St. Rep. 601; 93 Am. St. Rep. 258-261; and 29 L.R.A. 155. 3 [Eng.] Reg. v. Archer, 1 Fost. & F, 351, 1858. See [Nev.] State v. Levigne, 17 Nev. 435, 30 Pac. 1084, 1883. [Tex.] Callicoatte v. State,— Tex. Crim. Rep. —, 22 8. W. 1041, 1893. 4Supra, § 590; and see Claxton v. State, 2 Humph. 181, 1840. 5 [Ill.] Davison v. People, 90 Ill. 221, 1878. [Mass.] Com. v. Drew, 4 Mass. 391, 1808. [N. J.] State v. Zellers, 7 N. J. L. 220, 1824. 1[Cal.] People v. Payne, 8 Cal. 341, 1857. [Conn.] Johnson y. Pat- terson, 14 Conn. 1, 35 Am. Dec. 96, 1840. [Iowa] Hannabalson v. Ses- sions, 116 Iowa, 457, 93 Am. St. Rep. 250, 90 N. W. 93, 1902. [Mass.] Com. v. Kennard, 8 Pick. 133, 1829; Com. v. Power, 7 Met. 596, 41 Am. Dec. 465, 1844. [Mo.] State v. Hill, 69 Mo. 451, 1879. [N. Y.] Curtis v. Hubbard, 1 Hill, 336, 1841, 4 Hill, 487, 40 Am. Dec. 292, 1842; People v. Hubbard, 24 Wend. 369, 35 Am. Dec. 628, 1840. As to right to expel trespasser and to accomplish this to use all neces- sary force, see monographic note in 93 Am. St. Rep. 254-261. Dwelling house only can be defend- ed against a¢teck.—It is true that 806 CRIMINAL LAW. [§ 632 Le otherwise prevented or redressed, a cool and deliberate killing of a trespasser is murder.” But the question is mainly, Is an essential right of the party forcibly assailed? If so, he is en- titled, in absence of adequate legal remedy, to use such force as is necessary to repel the attack.* But he is not entitled to use such force for the defense of honor.* 3. Protection of dwelling houses. § 633. Persons attacked in dwelling houses need not retreat. When a person is attacked in his own house he need retreat no further. Here he stands at bay, and may turn on and kill his assailant if this be apparently necessary to save his own life; nor is he bound to escape from his house, in order to avoid his assailant. In this sense, and in this sense alone, are we to understand the maxim that “Every man’s house is his castle.” An assailed person, so we may paraphrase the maxim, is not bound to retreat out of his house, to avoid violence, even though a retreat may be safely made.’ we have cases intimating that only dwelling house can be defended by taking the assailant’s life. [Ala.] Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282, 1877. [Ind.] Kunkle v. State, 32 Ind. 220, 1869. [Mo.] Roberts v. State, 14 Mo. 138, 55 Am. Dec. 97, 1851. [N. J.] State v. Zellers, 7 N. J. L. 220, 1824. [Tex.] Kendall v. State, 8 Tex. App. 569, 1880, But this is true only so far as concerns the old common-law right of making houses “castles” or forti- fications. A dwelling house has pre- rogatives of this class belonging to no other property. But this must not be so construed as to abridge the right to defend all other valuable rights to the utmost. See supra, § 132; Morgan v. Durfee, 69 Mo. 469, 33 Am. Rep. 508, 1879. Bank messenger may protect pack- ages—A bank messenger, for in- stance, having a package of bonds in his custody, has a right to take life to repel a robber, no matter where the attack on him is made. See supra, §§ 612 et seq. In People v. Dann, 53 Mich. 490, But he is not entitled, 51 Am. Rep. 151, 19 N. W. 159, the attempt was to seize wheat in the defendant’s custody. The defendant, said the court, “had a right to de- fend this property, . and use so much force as was necessary for the purpose.” Porez v. State, 29 Tex. App. 618, 16 S. W. 750, 1891. 2[Fed.] United States v. Williams, 2 Cranch, C. C. 438, Fed. Cas. No. 16,710, 1823. [Iowa] State v. Vance, 17 Iowa, 138, 1864. [Mass.] Com. v. Drew, 4 Mass. 391, 1808. [N. C.] State v. Morgan, 25 N. C. (3 Ired. L.) 186, 38 Am. Dec. 714, 1842; State v. McDonald, 49 N. C. (4 Jones, L.) 19, 1856. [S. C.] Priester v. Augley, 5 Rich. L. 44, 1851. 8 Roach v. People, 77 Ill. 25, 1875; Pond v. People, 8 Mich. 150, 1860. Supra, §§ 130-132, 612. 4Supra, § 133. 1[Ala.] Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282, 1877; Harris v. State, 96 Ala. 24, 11 So. 255, 1892. [Del.] State v. Horskin, Houst. Crim. Rep. (Del.) 116, 1862; State v. Du- gan, Houst. Crim. Rep. (Del.) 563, 1879. [Fla.] Wilson v. State, 30 Fla. § 633] HOMICIDE. 807 either in the one case or the other, to kill his assailant unless he honestly and non-negligently believes that he is in danger of his life from the assault.? 234, 17 L.R.A. 654, 11 So. 556, 1892. [Ga.] Haynes v. State, 17 Ga. 465, 1855. [Mass.] Com. v. Drew, 4 Mass. 391, 1808. [Mich.] Pond v. People, 8 Mich. 150, 1860. [N. J.] State v. Zellers, 7 N. J. L. 220, 1824. [N. C.] State v. Taylor, 82 N. C. 554, 1880. [Vt.] State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200, 1873. [Wis.] State v. Martin, 30 Wis. 216, 11 Am. Rep. 567, 1872. Supra, § 130; 1 Hale, P. C. 486, 3 Greenl. Ev. § 117. A man’s house is his castle of de- fense for himself and his family, and an assault upon it, with an intent to injure him or any of his family, may be made in the same way as an as- sault upon himself or upon any member of his family; he may meet the assailant at the threshold and use the necessary force for the pro- tection of himself and the members of his family against the threatened invasion and harm. [Fla.] Wilson v. State, 30 Fla. 234, 17 L.R.A. 654, 11 So. 556, 1892. [Mich.] Pond v. Peo- ple, 8 Mich. 150, 1860; People v. Coughlin, 67 Mich. 466, 35 N. W. 72, 1887. [Mo.] Morgan v. Durfree, 69 Mo. 469, 33 Am. Rep. 508, 1880. [Ohio] State v. Peacock, 40 Ohio St. 333, 1883. [Vt.] State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200, 1873. [Va.] Stoneman v. Com. 25 Gratt. 887, 1874. See note in 12 Am. Rep. 212-214. But a man’s house is his castle only in the respect that it is sacred for the protection of his person and of his family; and an assault there- on can be lawfully resisted with the use of deadly weapons only in those cases where the assault is made with the intent of taking the life of an inmate or of doing him great bodily harm, and such resistance is neces- sary to prevent the consummation of the contemplated crime. In case the master of the house has reason to believe from the circumstances, and in good faith does believe, that such defense is necessary to prevent If he acts under heat of pas- the commission of the contemplated crime, then such defense is justifiable. State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200, 1873. See also authorities cited in note in 12 Am. Dec. 212-214. —Attack in own dwelling house, party not required to _ retreat. Brinkley v. State, 89 Ala. 34, 18 Am. St. Rep. 87, 8 So. 22, 1889. —Mere civil trespass upon man’s house, not accompanied by such force as to make it a breach of the peace, will not justify the owner in killing the trespasser, if the homicide is committed under circumstances from which the law implies malice. Car- roll v. State, 23 Ala. 28, 58 Am. Dec. 282, 1853. Owner of house is not justified in killing trespasser, unless the homi- cide is necessary to prevent felonious destruction of property, or to defend himself against loss of life or great bodily harm. Ibid. —Retreat increasing peril, party not required to retreat. Rutledge v. State, 88 Ala. 85, 7 So. 335, 1889; Shell v. State, 88 Ala. 14, 7 So. 40, 1889. An “open place before a stable” is not a place eutitled to privileges given to a man’s house. Perry v. State, 94 Ala. 25, 10 So. 650, 1892. In regard to “place of business,” see Askew v. State, 94 Ala. 4, 33 Am. St. Rep. 83, 10 So. 657, 1892. Right does not extend “outside the curtilage.” Martin v. State, 90 Ala. 602, 24 Am. St. Rep. 844, 8 So. 858, 1891; Lee v. State, 92 Ala. 15, 25 Am. St. Rep. 17, 9 So. 407, 1891; Baker v. Com. 93 Ky. 302, 19 S. W. 975, 1892; Hall v. Com. 94 Ky. 322, 22 8. W. 333, 1893. 2[Ark.] Brown v. State, 55 Ark. 593, 18 S. W. 1051, 1892; King v. State, 55 Ark. 604, 19 S. W. 110, 1892. [Conn.] State v. Scheele, 57 Conn. 307. 14 Am. St. Rep. 106, 18 Atl. 256, 8 Am. Crim. Rep. 545, 1889. [Iowa] State v. Middleham, 62 Iowa, 150, 17 N. W. 446, 1883. [Pa.] Com 808 CRIMINAL LAW. [§ 633 sion, there being no sufficient cause, the offense is manslaugh- ter? § 634. Attack on house may be resisted by taking life. An attack on a house or its inmates may be resisted by taking life. This may be when burglars threaten an entrance,’ or when there is apparent ground to believe that a felonious assault is to be made on any of the inmates of the house, or when an attempt is made violently to enter the house in defiance of the owner’s rights. (1) There can be no question that a person who, according to his lights, bona fide believes that a burglar is breaking into the house, can take the life of such burglar, if this be apparently the only way of preventing the offense; and the bona fide belief is a defense, if not negligently adopted, even though an innocent person be killed. (2) The same rule applies to a proposed felonious attack on any of the inmates of the house.? And where only so much force is used as is requi- site to repel the attack on the residence of the assailed, he is not responsible if, from any undesigned circumstances, the at- tack prove fatal.2 (3) Aside from these two grounds, which may be also regarded as included in the right of prevention of felonies, the occupant of a house has a right to resist, even to the death, the entrance of persons attempting to force them- selves into it against his will, when no action less than killing is sufficient to defend the house from entrance; and even the killing of an officer of the law, known to be such, endeavoring thus to intrude, is not murder, but manslaughter.* A man’s house, however humble, is his castle; and his castle he is en- titled to protect against invasion. The rule is to be traced to old times when the peace of the body politic, as well as of indi- viduals, depended upon the maintenance of the invoilability of houses as castles. And the rule continues to exist when there ig an equal reason for the maintenance of the inviolability of houses as homes.® vy. McLaughlin, 163 Pa. 651, 30 Atl. 1See supra, §§ 626, 633. 216, 1894. [S.C.] State v. McIntosh, People v. Lilly, 38 Mich. 270, 40 S. C. 349, 18 S. E. 1033, 1894. 1878; Brownell v. People, 38 Mich. 8 [Conn.] State v. Scheele, 57 Conn. 732, 1878. See supra, §§ 620 et seq. 307, 14 Am, St. Rep. 106, 18 Atl. 256, 8 Morgan v. Durfee, 69 Mo. 469, 33 8 Am. Crim. Rep. 545, 1889. [Ky.] Am. Rep. 508, 1879. Main v. Com. 13 Ky. L. Rep. 346, 41 Hale, P. C. 458. See §§ 633, 17 8S. W. 206, 1891. [Me.] State v. 6385, and cases there cited. Murphy, 61 Me. 56, 1870. 6 [Eng.] Reg. v. Sullivan, Car. & § 635] HOMICIDE, 809 § 635. —But this does not excuse killing of mere tres- passer. But this right is only one of prevention. It cannot be extended so as to excuse the killing of persons not actually break- ing into or violently threatening a house.' Nor is killing justi- fiable for the prevention of a trespass or nonfelonious entrance where there is no attempt to force a way in against the owner's prohibition.? M. 209, 1841. [Ga.] Haynes v. State, 17 Ga. 465, 1855. [N. J.] State v. Zellers, 7 N. J. L. 220, 1824. [N. Y.] Corey v. People, 45 Barb. 262, 1865. [N. C.] State v. Taylor, 82 N. C. 554, 1880. As to officers, see supra, § 566. 1Patten v. People, 18 Mich. 314, 100 Am. Dec. 173, 1869; see Meade’s Case, 1 Lewin, C. C. 184, 1823; Floyd v. State, 29 Tex. App. 349, 16 S. W. 188, 1891. 2Tbid. [Eng.] Reg. v. Bull, 9 Car. & P. 22, 1839. [Ala.] Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282, 1877. [Cal.] People v. Walsh, 43 Cal. 447, 1892. People, 18 Mich. 314, 100 Am. Dee. 173, 1869. See comments in Wharton, Homi- cide, §§ 543-4, Riotous approach towards house— Danger to sick inmate.—In Patten v. People, 18 Mich. 314, 100 Am. Dec. 173, 1869, a riotous approach was made toward the defendant’s house, where his mother was living in bad health. It was ruled that if, from the defendant’s knowledge of his mother’s peculiar physical condition, he had reason to believe that her life was endangered by the riotous pro- ceedings, and if the rioters were in- formed of her condition, or if all rea- senable or practicable efforts had been made to notify them of the fact, it was sufficient to excuse his conduct toward them to the same ex- tent as though the danger to her life had resulted from an actual attack upon her person, or as though he was in the like danger from an at- tack upon himself; and he was jus- tified in using the same means of protection in the one case as in the other. See Wharton, Homicide, § 545; and see supra, § 130. Right of person defending his In such cases the offense is manslaughter. [Mich.] Patten v.. This house.—Still more indulgently, so far as concerns the right of a person ap- parently defending his own house, was the law interpreted by the su- preme court of New York in 1838. The evidence was that the deceased and two companions sought to gain admittance into a house of ill fame by violence, and against the will of the keeper thereof, who ran out and struck the deceased with a door bar, from which death ensued; and this being proved, it was held by Nelson, C. J., and Cowen, J. (Bronson, J., dis- senting), that testimony that threats had been made a week before by a party of rioters, who had broken into the house and abused the in- mates, that they would return some other night and break in again, might be received and submitted to the consideration of the jury under the instruction of the court; al- though it was intimated that for the rejection of such evidence, where it was not shown that the deceased was one of the party who made the threats, a new trial would not be granted. People v. Rector, 19 Wend. 569, 1834. —Meade’s Case, 1 Lewin, C. C. 184, 1823, was cited by Cowen, J., who said: “There” (in Meade’s Case) “the death was occasioned by firing a loaded pistol. The case at bar pre- sents the same circumstance of alarm one step more remote, the assailant not being identified with the previous rioters, That, per se, however, would not so absolutely remove apprehen- sion that the killing could not be referred to it. The jury might have laid no stress upon the circumstance; but I think it should have been re- ceived, because we cannot say they would not. The lightness of a rele- vant circumstance is no argument for withholding it from the jury.” 810 CRIMINAL LAW. [§ 636 does not conflict with the maxim that “a man’s house is his cas- tle,” which he is entitled to defend, if needs he, with force.’ § 636. Friends may unite in defense. When there is re- sistance to a felonious attempt (¢.g., burglary or arson, or fe- lonious assault on the person), the question of the ownership of the building does not arise. If such a felony be apparently attempted, and if it cannot be apparently prevented except by taking the life of the assailant, then any person interested is justified in taking such life* Hence, not only the owner of the house, but his friends, neighbors, and a fortiori his servants and guests, may arm themselves for this purpose.* In Vermont, in 1873, the doctrine of Meade’s Case was affirmed, it be- ing expressly declared that the use of deadly weapons is permissible to avert an impending apparent feloni- ous assault on the defendant or his household. State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200, 1873. See supra, § 130. In California, however, in People v. Walsh, 48 Cal. 447, 1872, it was rightly held that the mere act of at- tempting from outside to open a window would not justify a person inside in shooting without giving warning. ‘See Steele v. State, 33 Fla. 348, 14 So. 841, 1894. 3State v. List, Houst. Crim. Rep. (Del.) 133, 1863. Resistance to an officer forcing an entrance to serve civil process is not indictable. See State v. Hooker, 17 Vt. 658, 1845. Supra, §§ 543 et seq. In Lee v. Gansel, Cowp. pt. 1, p. 1, Lofft, 374, Lord Mansfield said that “the privilege of a mansion house : is annexed to the house and door for the protection of a man and his family.” See Brown v. State, 31 Fla. 207, 12 So. 640, 1898; State v. Smith, 56 Minn. 78, 57 N. W. 325, 1894. See infra, § 637, footnote 1. 1Supra, § 625. 2[Eng.] Cooper’s Case, Cro. Car. 544; Semayne’s Case, 5 Coke, 92, 11 Eng. Rul. Cas. 628; Reg. v. Tooley, 11 Mod. 242, 1710. [Cal.] People v. Walsh, 43 Cal. 447, 1872. [Ga.] McPherson v. State, 22 Ga. 478, 1857. [Ind.] De Forest v. State, 21 Ind. 23, 1863. [Mass.] Com. v. Drew, 4 Mass. 391, 1808. [Mich.] Pond v. People, 8 Mich. 150, 1860. [Miss.] Maury v. State, 68 Miss. 605, 24 Am. St. Rep. 291, 9 So. 445, 1891. [N. Y.] Curtis v. Hubbard, 4 Hill, 437, 40 Am. Dec. 292, 1842; Temple v. Peo- ple, 4 Lans, 119, 1871. Dwelling house broken and entered by portion of an armed party in the nighttime for the unlawful purpose of depriving an inmate of his liberty, -accompanied with an intent to com- mit a felony; the person assaulted and the owner of the house may re- sist with such force as is necessary to prevent the carrying out of the criminal design, even to taking the life of those present, aiding and as- sisting as well of those who actually enter the house. Wright v. Com. 85 Ky. 123, 2 8. W. 904, 1887. Homicide in defense against an il- legal arrest of an ordinary character is simple manslaughter. The reason for this is because the law sets such a high value upon the liberty of the citizen that an attempt to arrest him is esteemed a great provocation. 1 Hale, P. C. 457; Fost, C. L. 312, § 9. [Eng.] Reg. v. Phelps, Car. & M. 180, 1841; Stockley’s Case, 1 East, P. C. 310; Rex v. Thompson, 1 Moody, C. C. 80; Rex v. Curvan, 1 Moody, C. C. 132; Tooley’s Case, 2 Ld. Raym. 1296; Buckner’s Case, Style, 467. [Ala.] Noles v. State, 26 Ala. 31, 62 Am. Dec. 711, 1855. [Del.] State v. Oliver, 2 Houst. (Del.) 585, 1855. [Mass,] Com. v. Drew, 4 Mass. 391, 1808; Com. v. Carey, 12 Cush. 246, 1853. [Mo.] Roberts v. State, 14 Mo. 138, 146, 55 Am. Dec. 97, 1851. [Tenn.] Tackett v. State, 3 Yerg. 392, 24 Am. Dee. 582, 1832; Galvin v. State, 6 Coldw. 291, 1869. [Tex.] Jones v. State, 26 § 636] HOMICIDE. 811 We must remember that there are three distinct relations in which the question now immediately before us comes up. The first is that of defense of property, which has been already no- ticed. The second is that of self-defense; and it would seem to be clear that not only is an attacked person excused from further retreat when he is in his own house,® but that he has the same excuse when he is pursued into any building out of which he cannot escape without exposing himself to serious bodily harm when escaping. The difference between the two cases is this: that when in his own house he is not bound to escape, even though he could do so conveniently; but that if in the house of another it is his duty, if he can conveniently and safely escape, to do so, and he is not excused, if he can make such escape, in taking his assailant’s life. But wherever his prop- erty is situate, he is entitled to use violent means to repel from it a violent attack.* Tex. App. 1, 8 Am. St. Rep. 454, 9 S. W. 53, 1888. —Power of arrest may be exer- cised in such a wanton and menacing manner as to threaten accused with loss of life or some bodily harm, in which case, though the attempted ar- rest was lawful, the homicide of the officer will be justifiable. Jones v. State, 26 Tex. App. 1, 8 Am. St. Rep. 454, 9 S. W. 53, 1888. Officer with armed posse surpris- ing a man by a night visit with in- tent to arrest him, and he, knowing nothing of that intention, kills the officer, the homicide will be man- slaughter merely. Croom v. State, 85 Ga. 718, 21 Am. St. Rep. 179, 11 S. E. 1035, 1890; Jenes v. State, 26 Tex. App. 1, 8 Am. St. Rep. 454, 9 S. W. 53, 1888. Twelve armed men, late at night, rode to the home of the accused, (who, on the day before, had a fight with one of the twelve, in which the latter was worsted), and called for the accused without having, or pro- fessing to have any authority to ar- rest him, searched the premises for him, and in doing so broke open the smoke house, and, not finding ac- cused there, advanced toward the cotton house, where the accused, The third relation is that of the defense with several of his friends, hiding in the cotton, fired upon the attack- ing party, killing two of them. This was not murder. Maury v. State, 68 Miss. 605, 24 Am. St. Rep. 291, 9 So. 445, 1891. 8 See supra, § 638. #Com. v. Daley, 2 Clark (Pa.) 361, 1844. Protection of house extends to all in it—In an English case, where the prisoner was a lodger at a house to which there was a backway, of which the prisoner was ignorant, it being the first night he had lodged at the house, and some persons split open the door of the house in order to get the prisoner out and ill treat him; Bayley, J., is reported to have said: “Tf the prisoner had known of the backway, it would have been his duty to have gone out backward, in order to avoid the conflict.” Dakin’s Case, 1 Lewin, C. C. 166, 1828. But the true view is, that the pro- tection of the house extends to each and every individual dwelling in it; and it has been held that a lodger inight justify killing a person en- deavoring to break into the house where he lodged, with intent to com- mit a felony in it. Cooper’s Case, Cro, Car. 544. See 1 East, P. C. chap. g12 CRIMINAL LAW. [§ 636 of the dwelling house, or mansion, as such, and to which, as we have seen, peculiar sanctity is assigned by the law.® § 637. Right does not excuse killing intruder when in house. But when an intruder is in the house, the owner can- not kill him simply for refusing to leave. A man has a right to order another to leave his house, but has no right even when such order is given to put him out by force till gentler means fail; and if the owner attempt to use violence in the outset and is slain, it will not be murder in the slayer if there be no previ- ous malice. So it will be at least manslaughter, if the owner of the house kill a visitor who has come in peaceably, though forbidden, and who refuses to leave when ordered out, and whose expulsion is not necessary for the prevention of felony.? But if an intruder refuse to leave, when a request to leave is either given or is implied from resistance to his entrance, he may be ejected by the employment of as much force as is requisite for 5B, § 57, p. 289; Fost. C. L. 274; and Ford’s Case, J. Kelyng, 51. Outhouses part of dwelling house. —As parts of the dwelling house are to be considered such outhouses as are kept for the use of the family. Thus in a Michigan case, elsewhere fully cited, it was ruled that a build- ing 86 feet distant from a man’s house, used for preserving the nets employed in the owner’s ordinary oc- cupation of a fisherman, and also as a permanent dormitory for his serv- ants, is in law a part of his dwelling, though not included with the house by a fence. A fence, it was properly said, is not necessarv to include buildings within the curtilage, if within a space no larger than that usually occupied for the purposes of ~the dwelling and customary outbuild- ings. Pond v. People, 8 Mich. 150, 1860. See supra, §§ 626, 630. 5 Supra, § 634; infra, § 820. As to right of innkeepers and of railroad officers, infra, §§ 818-823. As to the right of officers to enter inns, see supra, § 566. 1 [Eng.] Reg. v. Roxburgh, 12 Cox, C. C. 8; Gregory v. Hill, 8 T. R. 299. [Ala.] Brinkley v. State, 89 Ala. 34, 18 Am. St. Rep. 87, 8 So. 22, 1889. [Ark.] McCoy v. State, 8 Ark. 451, 1848. ([Tll.] Greschia v. People, 53 Tl. 295, 1870. [Mo.] State v. Sloan, 47 Mo. 604, 1871. [Pa.] Tiffany v. Com. 121 Pa. 165, 6 Am. St. Rep. 775, 15 Atl. 462, 1888. See also supra, §§ 593, 594; infra, §§ 820 et seq. Man assailed in his own house is not bound to retreat to avoid killing his assailant, even though a retreat could be safely made. Brinkley v. State, 89 Ala. 34, 18 Am. St. Rep. 87, 8 So. 22, 1889. See Jones v. State, 76 Ala. 8, 1884; Cary v. State, 76 Ala. 78, 1884; State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200, 1873. 2[Eng.] Reg. v. Sullivan, Car. & M. 209, 1841; Howell v. Jackson, 6 Car. & P. 723, 1834; Meade’s Case, 1 Lewin, C. C. 184, 1823. [Ark.] McCoy v. State, 8 Ark. 451, 1848. [N. C.] State v. Smith, 20 N. C. 115 (3 Dev. & B. L. 117), 1838. See supra, §§ 593, 594; 2 Addison, Torts, 793. As to the right of expulsion, see infra, §§ 820 et seq. § 638] HOMICIDE. 813 the purpose,’ though the use of excessive force makes the party using it responsible in case of death for manslaughter.* § 638. Killing by spring guns when necessary to ex- clude burglars is excusable; when set bona fide, but negli- gently, it is manslaughter; when maliciously, it is murder. The use of spring guns has been already incidentally noticed. We may here repeat the general principle, that man is not jus- tified in using instruments of destruction.(e.g., spring guns) for the defense of his property in any case in which he would not be justified in taking life if his house was actually assailed by a person with felonious intent. Such guns may be used in a house to protect valuables there stored,? but when they are negligently planted in a place where they may be reasonably expected to injure ordinary trespassers accustomed and likely to frequent such place, the killing of such a trespasser is man- slaughter.? And where the intent is to kill any person entering, 3 [Ark.] McCoy v. State, 8 Ark. 451, 1848. [Del.] State v. Dugan, Houst. Crim. Rep. (Del.) 563, 1879. [Ga.] Lyon v. State, 22 Ga. 399, 1857. [Ill] Reins v. People, 30 Ill. 256, 1863; Greschia v. People, 53 Ill. 295, 1870. [Pa.] Com. v. Robertson, Addison (Pa.) 246, 1794. [Tex.] Hinton v. State, 24 Tex. 454, 1859. 4See infra, §§ 817 et seq. 820; supra, §§ 598, 594. [Eng.] Wild’s Case, 2 Lewin, C. C. 214, 1837. [Me.] State v. Murphy, 61 Me. 56, 1870. [S. C.] State v. Lazarus, 1 Mill. Const. 34, 1817. Malicious and wanton homicide of a visitor who, though forbidden, had entered peaceably was murder. State v. Harman, 78 N. C. 515, 1878. See supra, § 587. 1See supra, § 592. 2State v. Moore, 31 Conn. 479, 83 Am. Dec. 159, 1863; Gray v. Combs, 7 J. J. Marsh. 478, 23 Am. Dec. 431, 1832. See Ilott v. Wilkes, 3 Barn. & Ald. 304, 22 Revised Rep. 400, 25 Eng. Rul. Cas. 85, 1820. 3 [Eng.] Bird v. Holbrook, 4 Bing. 628, 1 Moore & P. 607, 6 L. J. C. P. 146, 29 Revised Rep. 657, 25 Eng. Rul. Cas. 97; Townsend v. Wathen, 1 East, 277, 9 Revised Rep. 553. [Fed.] United States v. Gilliam, 11 Wash. L. Rep. 119, 17 Cent. L. J. 182, 1883. [Conn.] Johnson v. Pat- terson, 14 Conn. 1, 35 Am. Dee. 96, 1840; State v. Moore, 31 Conn. 479, 83 Am. Dec. 159, 1863. See also Wharton, Neg. § 347. See a striking article by Sydney Smith, in the Edinburgh Review, 1821, reprinted in his Essays, Am. ed. p. 227. In England it was originally held that the plaintiff, if he had notice of the spring guns, could not recover for injury received by him. [Ilott v. Wilkes, 3 Barn. & Ald. 304, 22 Re- vised Rep. 400, 25 Eng. Rul. Cas. 85, 1820; Deane v. Clayton, 7 Taunt. 489, 2 Marsh. 577, 1 J. B. Moore, 203, 18 Revised Rep. 553, 1817. —Statutes followed making cul- pable injury by spring guns or man- traps a criminal offense. See as to construction of statutes, Wootton v. Dawkins, 2 C. B. N. S. 412, 5 Week. Rep. 469, 1857. In Jordin v. Crump, 8 Mees. & W. 782, 11 L. J. Exch. N. S. 74, 5 Jur. 1113, 1841, the rule is laid down that a person, passing with his dog through a wood, in which he knew dog-spears are set, has no right of action against the owner of the wood for the death or injury to his dog, who, by reason of his own natural instinct, and against the will of his 814 CRIMINAL LAW. [§ 638 and no due notice is given, the offense is murder.* The fact that the party setting the gun was absent at the explosion is no defense.® 4, Execution of laws. § 639. Killing under mandate of law justifiable. The execution of malefactors, by the person whose office obliges him, in the performance of public justice, to put those to death who have forfeited their lives by the laws and verdict of their coun- try, is an act of necessity, where the law requires it.1 But the act must be under the immediate precept of the law, or else it is not justifiable; and, therefore, wantonly to kill the greatest of malefactors without specific warrant would be murder. And a subaltern can only justify killing another on the ground of orders from his superior in cases where the orders were lawful.” As we have seen, a warrant that is without authority is no defense; though it is otherwise when the defects are merely formal.® 5. Superior duty. § 640. Killing under superior duty, justifiable. It has already been observed that there are cases in which a surgeon, when called upon to determine whether a critical operation is to be performed, may undertake such operation, though the pros- master, rurs off the path against one of the dog-spears, and is killed or injured; because the setting of dog- spears was not in itself an illegal act, nor was it rendered so by the 7 & 8 Geo. IV. chap. 18. The cases are reviewed in able opinions by Sherman, J., in Johnson v. Patterson, 14 Conn. 1, 35 Am. Dec. 96, 1840; and by Doe, J., in Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep. 339, 1873. 4Simpson v. State, 59 Ala. 131 Am. Rep. 1, 1877. Planting spring gun with the gen- eral intent to kill trespassers, a par- ticular person being wounded, ac- cused cannot be convicted of assault with intent to commit murder. The intent to kill that particular person alone must be shown, and cannot be implied from the general conduct. [Ala.] Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1, 1877. [Miss.] See Hairston v. State, 54 Miss. 689, 28 Am. Rep. 392, 8 Am. Crim. Rep. 6, 1877. [Tex.] Garnet v. State, 1 Tex. App. 605, 28 Am. Rep. 425, 1877. 5 Supra, § 256. 1Supra, §§ 124, 428, 528; State v. Blackburn, 7 Penn. (Del.) 479, 75 Atl. 536, 1892. For earlier authorities, see 26 Cen- tury Dig. col. 205, § 134. 2United States v. Carr, 1 Woods, 480, Fed. Cas. No. 14,732, 1872. 8 Supra, § 528. § 641} HOMICIDE. 815 pects of success are slight, if the alternative be a certain miser- able death, in the natural progress of the disease.’ The same view may be accepted when the alternative is the sacrifice in childbed of the life of a mother or that of a child, and the life of the child is taken.” Once more, supposing that the safety of a city require that a house should be destroyed by gunpowder, and supposing there be no time to rescue all the inmates of the house, the killing of one of such inmates, under the circum- stances, would be excusable? 6. Necessity. § 641. Sacrifice of another’s life, excusable when neces- sary to save one’s own. The canon law, which lies at the basis of our jurisprudence in this respect, excuses the sacrifice of the life of one person, when actually necessary for the preser- vation of the life of another, and when the two are reduced to such extremities that one or the other must die,” . . . quoni- am necessitas legem non habet.” Si quis propter necessitatem famis, aut nuditatis furatus fuerit ciberia, vestem, vel pecus; poeniteat hebdomadas tres, et, si reddiderit, non cogatur ieiunare.* Quod non est licitum in lege, necessitas facit lici- tum. So an eminent French jurist:* En un mot, l’acte ne peut-étre excusable que lorsque l’agent cede 4 Vinstinct de sa propre conservation, lorsqu’il se trouve en présence d’un péril imminent, lorsqu’il s’agit de la vie. In the same view leading German jurists unite.” But it should be remembered that necessity of this class must be strictly limited. Hence it has been held by the canon jurists that the right can only be exercised in extremity, and in sub- ordination to those general rules of duty to which even such a necessity as that before us must be subordinate. Hence when the question is between an unborn infant’s life and a mother’s, the mother is to be preferred; and between a sailor and a pas- 1 Supra, §§ 126, 127,178, 184. See 8 Cap. 4. x. de reg. iur. (5. 41.) Territory v. Yee Dan, 7 N. M. 439, Rossi, Traité ii. p. 212. 37 Pac. 1101, 1894. 5 Berner, De impunitate propter 2 Ibid. summam necessitatem, etc. (1861); 3 See supra, §§ 126, 127, 178. Geib, Lehrbuch, ii. 225; and an inter- 1Can. 11.~ Dist. i. de consecrat. esting compendium in Holtzendorf, 2Cap. 3. x. de furt. (5. 18.) ii, 180. 816 CRIMINAL LAW. [§ 641 senger, supposing there are more than enough sailors for the purpose of navigation, the passenger, as will presently be seen, ought to be preferred. But no assent by the party sacrificed can be by itself a defense.® How far culpability precludes this defense has been already discusséd.” , § 642. Self-preservation in shipwreck. Upon the great authority of Lord Bacon it has been held that where two ship- wrecked persons get on the same plank, and one of them, finding it not able to save them both, thrusts the other from it, whereby he is drowned, it is excusable homicide. Lord Hale, however, doubts this, on the ground that a man cannot ever excuse the killing of another who is innocent, under a threat, however urgent, of losing his own life if he do not comply; and that if one man should assault another so fiercely as to endanger his life, in order to compel him to kill a third person, this would give no legal excuse for his compliance.? On this Mr. East remarks, that if the commission of treason may be extenuated by the fear of present death, and while the party is under actual compulsion,® there seems to be no reason why homicide may not also be mitigated upon the like consideration of human infirm- ity; though, in case the party might have recourse to other ap- parent means for his protection in his apparent necessity, his fears furnish no excuse for killing.* 6 But see United States v. Holmes, 1 Wall. Jr. 1, Fed. Cas. No. 15,383, 1842; infra, § 642. 7Supra, § 127. 14 Bl. Com. 186; Rutherforth, Inst. chap. 16, pp. 187-90; Puffendorf, Law of Nature, 204; Herbert’s Legal Max- ims, 7; United States v. Holmes, 1 Wall. Jr. 1, Fed. Cas. No. 15,383, 1842. 21 Hale, P. C. chap. 28, § 26; Hicks v. United States, 150 U.S. 442, 37 L. ed. 1137, 14 Sup. Ct. Rep. 144, 1893; Arp v. State, 97 Ala. 5, 19 L.R.A. 357, 38 Am, St. Rep. 137, 12 So. 301, 9 Am. Crim. Rep. 517, 1893. 31 East, P. C. chap. 2, § 15, p. 70. 4Jbid.; chap. 5, § 61, p. 294. Self-preservation in ship wreck— Throwing persons overboard—The Holmes Case.—In this country this topic has undergone the test of a ju- dicial investigation, in a court and under circumstances peculiarly favor- able to its careful consideration. In March, 1842, Alexander William Holmes was indicted, in the United States circuit court for the eastern district of Pennsylvania, before Bald- win, J., for manslaughter. From the evidence it appeared that the ship William Brown left Liverpool on the 18th day of March, 1841, having on board sixty-five passengers and a crew composed of seventeen seamen, the whole number amounting to eighty- two, most of the passengers being Irish and Scotch emigrants. The voyage was very favorable until the evening of the 19th of April, at which time, while all were in their beds except the watch, consisting of seven persons, among whom was Alexander William Holmes, the pris- § 643] HOMICIDE. 817 XIV.. Inprormenrt, § 643. Introductory. Under this head it is practicable to notice such points only of pleading as are peculiar to homi- oner, a Swede by birth, the vessel struck an iceberg, and immediately commenced leaking. The sails were shortened, and resort was had to the pumps. Upon examination it was found that the injury the vessel had received rendered her loss inevitable, and that the crew could only be saved, if saved at all, by taking refuge in the boats at once. The boats were immediately launched; in the long-boat were crowded thirty- two passengers, besides a portion of the crew, in all forty-two persons; in the jolly-boat were placed nine per- sons. The two boats pushed away from the ship, and the ropes by which they were attached to her were cut just before the ship went down. They remained together un- til the next morning, when they sepa- rated. During the first day the weather was moderate and the sea calm. From the moment the long- boat reached the water it was neces- sary to bail; she was leaky, and the plug was insecure and insufficient for the purpose. She was so loaded that the gunwale was but a few inches from the water. Toward evening the sea became rough, and at times washed over the sides of the boat. On the second night, not much more than twenty-four hours after the abandonment of the ship, the sea be- coming more and more tempestuous, and the danger of destruction im- minent, the defendant, together with the remaining sailors, proceeded to throw overboard those passengers whose removal seemed necessary for the common safety. Relief shortly afterward came, but great conflict of evidence existed as to whether the boat could have held out in its originally crowded state even during the short period. The question, therefore, whether, with no prospect of aid, acting under the circumstan- ces which surrounded the defendant at the time the act was committed, such necessity existed as would jus- Crim. L. Vol. I—52. tify the homicide, was one of great doubt. But a new test was proposed by Judge Baldwin, holding that in such an emergency there was no maritime skill required which would make the presence of a sailor of more value than that of « passenger, he maintained, with great power of argument, that in such case, it being the stipulated duty of the sailor to preserve the passenger’s life at all hazards, if a necessity arose in which the life of one or the other must go, the life of the passenger must be preferred. If, on the other hand, the crew was necessary, in its full force, for the management of the vessel, the first reduction to be made ought to take place from the ranks of the passengers. But under any circumstances he insisted that the proper method of determining who was to be the first victim out of the particular class was by lot. The de- fendant, under the charge of the court, was convicted but was sen- tenced to an imprisonment of light duration. United States v. Holmes, 1 Wall. Jr. 1, Fed. Cas. No. 15,383, 1842. —Sir J. F. Stephen’s comment.— On this case Sir J. F. Stephen (Di- gest Crim. Law, 3d ed. art. 33), thus comments: “I doubt whether an English court would take this view. It would be odd to say that the two men on the raft were bound to toss up as to which should go.” To this it may be added, that an agreement by all parties on board to abide by the lot would be no defense to an indictment for homicide, since A’s consent that B should kill him, even on a contingency, is no defense to such killing. (Supra, § 184.) Nor can it be understood why the indict- ment was for manslaughter. If the defense of necessity was made out. the case was one for an acquittal. If it was not made out, the case was common-law murder, as there 818 CRIMINAL LAW. [§ 643 cide, and there is no attempt to discuss these exhaustively ; such treatment belongs properly in the work on Criminal Pleading was a deliberate taking of life. See criticism in London Quarterly Law Rev., Jan. 1885, p. 51. In his opin- ion in the Mignonette Case, Lord Coleridge concurs in this conclusion, and says that referring the matter to lot “can hardly be an authority satisfactory to a court of this coun- try.” —The Mignonette Case.—In Dud- ley and Stephens, Case (Mignonette Case, London, 1884), where the de- fendants were indicted for killing and eating a boy named Parker, who, with them, was in a state of starvation in a boat at sea, Baron Huddleston charged the grand jury as follows: “It is impossible to say that the act of Dudley and Stephens was an act of self-defense. Parker, at the bottom of the boat, was not endangering their lives by any act of his; the boat could hold them all, and the motive for killing him was not for the purpose of lightening the boat, but for the purpose of eating him, which they could do when dead, but not while living. What really imperiled their lives was not the presence of Parker, but the absence of food and drink. It could not be doubted for a moment that if Parker was possessed of a weapon of defense, —say a revolver,—he would have been perfectly justified in taking the life of the captain, who was on the point of killing him, which shows clearly that the act of the captain was unjustifiable. It may be said that the selection of the boy—as in- deed Dudley seems to have said—was better, because his stake in society, having no children at all, was less than theirs; but if such reasoning is to be allowed for a moment, Cicero’s test is that under such circumstances of emergency the man who is to be sacrificed is to be the man who would be the least likely to do bene- fit to the republic, in which case Parker, as a young man, might be likely to live longer, and be of more service to the republic than the oth- ers. Such reasoning must be always more ingenious than true. Nor can it be urged for a moment that the state of Parker’s health, which is al- leged to have been failing in conse- quence of his drinking the salt water, would justify it. No person is permitted, according to the law of this country, to accelerate the death of another. Besides, if once this doctrine of necessity is to be admitted, why was Parker selected rather than any of the other three? One would have imagined that his state of health and the misery in which he was at the time would have obtained for him more consideration at their hands. However, it is idle to lose one’s self in speculations of this description. I am bound to tell you that if you are satisfied that the boy’s death was caused or accelerated by the act of Dudley, or Dudley and Stephens, this is a case of deliberate homicide, neither justifiable nor ex- cusable, and the crime is murder, and you, therefore, ought to find a true bill for murder against one or both of the prisoners.” There was no drawing of lots in this case; this having been proposed but rejected. This, however, was held by the court to make no differ- ence in the case. The jury found a special verdict of murder, subject to the opinion of the court in bane, by which the ver- dict was sustained; Lord Coleridge, giving the opinion of all the judges, saying: “It is admitted that the de- liberate killing of this unoffending and unresisting boy was clearly mur- der, unless the killing can be justified by some well-recognized excuse ad- mitted by the law. It is further ad- mitted that there was in this case no such excuse, unless the killing was justified by what has been called necessity; but the temptation to the act which existed here was not what the law has ever called necessity.” 31 Alb. L. J. 38. The prisoners were sentenced to be hung, but the punishment was com- muted by the Crown to imprison- ment for six months. London Law Times, Nov. 15, 1884. § 645] and Practice. cussed.? HOMICIDE. 819 Other points of pleading are elsewhere dis- § 644. Venue must aver jurisdiction. The venue must aver jurisdiction in conformity with the statute law of the par- ticular jurisdiction.* The conflict as to jurisdiction in cases where the mortal blow was struck in one state and the death occurred in another has been already discussed.? § 645. Deceased must be individuated. In the indictment or information the deceased person must be specified by his name where known, and where the name is unknown to the grand jury that fact should be 1See Wharton, Crim. Pl. & Pr. §§ 90 et seq. For precedents, see Wharton, Precedents, 104 et seq. tit. “Homicide.” 1[Cal.] People v. Aro, 6 Cal. 207, 65 Am. Dec. 503, 1856. [Iowa] Nash v. State, 2 G. Greene, 286, 1849. [Miss.] Stoughton v. State, 13 Smedes & M. 255, 1850; Riggs v. State, 26 Miss. 51, 1853. [N. C.] State v. Orrell, 12 N. C. (1 Dev. L.) 139, 7 Am. Dec. 563, 1826; State v. Haney, 67 N. C. 467, 1872. [S. C.] State ex rel. Matthews v. Toomer, Cheves, L. 106, 1840. [Tenn.] Riley v. State, 9 Humph. 646, 1849. [Va.] Com. v. Linton, 2 Va. Cas. 205, 1820. As to sufficiency of indictment, generally, see 26 Century, Dig. col. 332, §§ 192-194; 10 Decen. Dig. p. 576, § 127; Am. Dig. title “Homi- cide,” § 127. As to record on change of venue, see [Ga.] Woolfolk v. State, 85 Ga. 69, 11 S. E. 814, 1890. [Tex.] Smith v. State, 31 Tex. Crim. Rep. 14, 19 S. W. 252, 1892; Wolfforth v. State, 31 Tex. Crim. Rep. 387, 20 S. W. 741, 1892. [Va.] Muscoe v. Com. 87 Va. 460, 12 S. E. 790, 1891; Watson v. Com. 87 Va. 608, 13 S. E. 22, 1891. 2 Supra, §§ 339, 340. [Ga.} Futch v. State, 90 Ga. 472, 16 S. E. 102, 1892. [Md.] Stout v. State, 76 Md. 317, 25 Atl. 299, 9 Am. Crim. Rep. 398, 1892. [Mo.] State y. Blunt, 110 Mo. 322, 19 S. W. 650, 1892. [S. C.] State v. Blakeney, 33 8. ©. 111, 11 S. E. 637, 1890. Indictment for murder on high seas. St. Clair v. United States, 154 alleged. However, it has been U. S. 134, 38 L. ed. 936, 14 Sup. Ct. Rep. 1002, 1893. —Need not specify locality where alleged offense committed; the gen- eral averment that offense was com- mitted 'on an American vessel on the high seas within the jurisdiction of the court and out of the jurisdiction of any particular state renders it sufficient. Andersen v. United States, 170 U. S. 481, 42 L. ed. 1116, 18 Sup. Ct. Rep. 689, 1898. 1[Cal.] People v. Lee Look, 137 Cal. 590, 70 Pac. 660, 1902. [Colo.] Cremar v. People, 30 Colo. 363, 70 Pac. 415, 1902. [Ga.] Sutherland v. State, 121 Ga. 591, 49 S. E. 781, 1905; Baker v. State, 121 Ga. 592, 49 S. E. 782, 1905. [Tl.] Palmer v. People, 138 Ill. 356, 32 Am. St. Rep. 146, 28 N. E. 130, 1891; Kirkham v. People, 170 Ill. 9, 48 N. E. 465, 1897; [Ind.] Merrick v. State, 63 Ind. 327, 1878. [Tenn.] Boyd v. State, 14 Lea, 161, 1884. [Tex.] Bohannon v. State, 14 Tex. App. 271, 1883. [W. Va.] State v. Smith, 24 W. Va. 814, 1884. [Wis.] Bowers v. State, 122 Wis. 163, 99 N. W. 447, 1904. As to fatal variance, see Jackson v. State, 88 Ga. 784, 15 8S. E. 905, 1892; Lewis v. State, 90 Ga. 95, 15 S. E. 697, 1892; State v. Senn, 32 S. C. 392, 11 S. E. 292, 1890. As to amendment by inserting Christian name, see Miller v. State, 68 Miss. 221, 8 So. 273, 1890. As to “defendant” for “defend- ants,” see [Ark.] Evans v. State, 58 Ark, 47, 22 8. W. 1026, 1893. [Cal.] People v. McNulty, — Cal. —, 26 CRIMINAL LAW. [§ 646 820 held * that it is not necessary to aver him to be a “human being.” In what way names are to be pleaded is elsewhere examined.’ § 646. Averment of relationship between deceased and defendant; when such is necessary to offense. If a con- stable, watchman, or other minister of justice be killed in the execution of his office, the special matter need not be stated, but the offender may be indicted generally for murder.1 But where the case rests upon a neglect to provide sufficient food for the deceased, it must show that it was the duty of the pris- oner to provide it.” § 647. Variance as to intent to kill the particular indi- vidual killed. Where A shoots into a crowd, intending to hurt or kill anyone whom he may hit, and B is killed, then A may be indicted for the murder of B, and the indictment may aver such intent.1. And where A, maliciously intending to kill B, shoots at and kills C, mistaking him for B, then A may be indicted for the intentional murder of C. For if A intend to kill C under a false impression who C is, then malice to C (however mis- taken it may be) is made out, supposing that the intent is ma- licious.? But if A shoot at B under circumstances in which it would have been excusable homicide to have killed B, then it is excusable homicide in A, by this act to kill (without negli- gence) C, supposing C to be B. Whether when A, intending to shoot B, shoots C by a glance shot, without seeing him, A is indictable for shooting C, is elsewhere considered.‘ § 648. “In the peace of God,” etc., not a necessary averment. It is not necessary to allege that the party killed was “in the peace of God and of the said state” (or common- wealth), etc., though such words are commonly inserted." The omission of the words is no ground for arrest of judgment.’ Pac. 597, 1891. [La.] State v. Rich- mond, 42 La. Ann. 299, 7 So. 459, 1890. [Tex.] Milontree v. State, 30 Tex. App. 151, 16 S. W. 764, 1891. [Wash.] State v. Freidrich, 3 Wash. 418, 28 Pac. 747, 1892. 2Wharton, Crim. Pl. & Pr. §§ 96 et seq.; Wharton, Crim. Ev. §§ 94 et seq.; see [Ala.] Reese v. State, 90 Ala. 624, 8 So. 818, 1891; Welsh v. State, 96 Ala. 92, 11 So. 450, 1892. [Ark.] Edmonds v. State, 34 Ark. 720, 1879. [Ind.] Smurr v. State, 88 Ind. 504, 1883. [Mo.] State v. Ed- wards, 70 Mo, 480, 1879. 1 Mackalley’s Case, 9 Coke, 68; 1 Hale, P. C. 460; Boyd v. State, 17 Ga. 194, 1855; Wright v. State, 18 Ga. 383, 1855. 2See Rex v. Goodwin, cited in 1 Russell, Crimes, 8th ed. 563. 1Supra, §§ 443, 444; Reg. v. Fret- well, Leigh & C. C. C. 448, 9 Cox, C. C. 471, 33 L. J. Mag. Cas. N. 8. 128, 10 Jur. N. 8. 595, 10 L. T. N. S. 428, 12 Week. Rep. 751, 1864. 2See supra, § 441; and also Rex v. Holt, 7 Car. & P. 519, 1836. 3 Supra, §§ 441-445. 4Supra, §§ 138-142, 441. 12 Hawk. P. C. chap. 25, § 73; 2 Hale, P. C. 186; 1 Id. 433. Supra, § 433. 2 [Eng.] Rex v. Sawyer, Russ. & R. § 650] HOMICIDE. 821 § 649. Deceased must have been living at time of blow. As has been already seen,’ it is essential in all cases to show that the deceased was living at the time when the alleged mortal blow was struck. But an averment that the defendant.was liv- ing at the time, or that he was a reasonable creature, is not necessary.” § 650. “Feloniously” and with “malice aforethought,” necessary at common law. It is necessary to state that the act by which the death was occasioned was done feloniously ;* and especially that it was done C. ©. 294, 2 Car. & K. 101. [Ga.] Dumas v. State, 63 Ga. 600, 1879. [Mass.] Com. v. Murphy, 11 Cush. 472, 1853. [S. C.] State v. Howard, 92 N. C. 772, 1885. 1Supra, § 430. 2 Bohannon v. State, 14 Tex. App. 271, 1883. Supra, § 645. 1 Defective if “feloniously” is omit- ted. Stroud v. Com. 14 Ky. L. Rep. 179, 19 S. W. 976, 1892; People v. Bemis, 51 Mich. 422, 16 N. W. 794, 1883. 22 Hale, P. C. 186, 187. [Eng.] Bradley v. Banks, Yelv. 205, 1817. [Ark.] Edwards v. State, 25 Ark. 444, 1869. [Cal.] People v. Schmidt, 63 Cal. 28, 1883. [Miss.] Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544, 1854. [Tenn.] Witt v. State, 6 Coldw. 5, 1868. [Tex.] McElroy v. State, 14 Tex. App. 235, 1883. [Va.] Com. v. Gibson, 2 Va. Cas. 70, 1817. For Alabama, see Ward v. State, 96 Ala. 100, 11 So. 217, 1892. In Florida, the indictment must allege the act to have been done with “the premeditated design to effect death.” Simmons v. State, 32 Fla. 887, 13 So. 896, 1893. In Iowa, the indictment, under the statute, must aver both assault and killing to be wilful, deliberate, and premeditated. State v. Knouse, 29 Towa, 118, 1870. : In Louisiana, “wilfully” and “fe- loniously” are necessary to murder. State v. Thomas, 29 La. Ann. 601, 1877. See State v. Harris, 27 La. Ann. 572, 1875. In Massachusetts the terms may be omitted as to the assault, if given afterward as to the killing. Com. v. of malice aforethought,’ which, Chapman, 11 Cush. 422, 1853. See also Rex v. Nicholson, 1 East, P. C. 346; Maile v. Com. 9 Leigh, 661, 1839. i In Texas, “malice aforethought” is enough. Henrie v. State, 41 Tex. 573, 1874; Bohannon v. State, 14 Tex. App. 271, 1883. It is, however, essential. McElroy v. State, 14 Tex. App. 235, 1883. See Wharton, Crim. Pl. & Pr. § 269. : In Wisconsin, under statute, “malice aforethought” need not be here used. State v. Duvall, 26 Wis. 415, 1870. As to manner and means of killing, see [Mo,] State v. Banks, 118 Mo. 117, 23 S. W. 1079, 1893. [Tenn.] Taylor v. State, 11 Lea, 708, 1883. [Tex.] Williams v. State, 30 Tex. App. 354, 17 S. W. 408, 1891. As to “wilful.” See [Kan.] State v. Bridges, 29 Kan. 138, 1883. [Mo.] State v. Eaton, 75 Mo. 586, 1882. [N. C.] State v. Moore, 104 N. C. 748, 10 S. E. 183, 1889; State v. Arnold, 107 N. C. 861, 11 §. E. 990, 1890. “Feloniously.” An indictment un- der statute for wilfully and mali- ciously shooting and wounding with intent to kill, need not charge that the act was done feloniously. See [Cal.] People v. Forney, 81 Cal. 118, 22 Pae. 481, 1889; People v. Saver- cool, 81 Cal. 650, 22 Pac. 866, 1889. [Ind.] State v. Jenkins, 120 Ind. 268. 22 N. E. 133, 1889. [Ky.] Cundiff v. Com. 86 Ky. 196, 5 S. W. 486, 1887. Omission of “unlawfully,” see [Fed.] Davis v. Utah, 151 U. S. 262, 38 L. ed. 153, 14 Sup. Ct. Rep. 328, 822 CRIMINAL LAW. [§ 650 as we have already seen, is the great characteristic of the crime of murder; and it must also be stated that the prisoner murdered the deceased.* If the averment respecting malice aforethought be omitted, and the indictment only allege that the stroke was given feloniously, or that the prisoner murdered, ete., or killed or slew the deceased, the conviction can only be for man- slaughter.* § 651. Allegation of “assault” necessary in violent hom- icides. battery, it is necessary to allege an assault.” Where the killing is alleged to have been caused by a In indictments for neglect, however, where no violence is alleged, the “assault” may be omitted.” But the term “assault” does not vitiate the indict- ment, though it should appear that the deceased consented to the injurious acts being done.® § 652. At common law, general character of instrument of death must be correctly given. The common-law rule, in pleading the instrument of death, is, that where the instrument 1893; St. Clair v. United States, 154 U. S. 134, 38 L. ed. 936, 14 Sup. Ct. Rep. 1002, 1894. ([Cal.] People v. Hyndman, 99 Cal. 1, 33 Pac. 782, 1893. [Colo.] Jordan v. People, 19 Colo. 417, 36 Pac. 218, 1894. [Fla.] Hodge v. State, 26 Fla. 11, 7 So. 593, 1890. [Mo.] State v. Rector, — Mo. —, 23 S. W. 1074, 1893. [Tex.] Hunter v. State, 30 Tex. App. 314, 17S. W. 414, 1891; Scott v. State, 31 Tex. Crim. Rep. 363, 20 S. W. 755, 1892. [Utah] People v. Davis, 8 Utah, 412, 32 Pac. 670, 1893. [W. Va.] State v. Schnelle, 24 W. Va. 767, 1884. Ungrammatical indictment, see State v. Turlington, 102 Mo. 642, 15 8. W. 141, 1890. “With malice aforethought” not enough. [Ala.] Griffith v. State, 90 Ala. 583, 8 So. 812, 1891. [Ind.] Plake v. State, 121 Ind. 433, 16 Am. St. Rep. 408, 23 N. E. 273, 1889. [Pa.] Com. v. Buccieri, 153 Pa. 535, 26 Atl. 228, 1893. 8Infra, § 672; Wharton, Prece- dents, 7, 8; though see Anderson v. State, 5 Ark. 444, 1844; State v. Bradford, 33 La. Ann. 921, 1881. As to “strike,” see § 663. In New York statutory murder may be proved under an indictment in the common-law form. People v. Osmond, 138 N. Y. 80, 33 N. E. 739, 1893. Indictment of principal and ac- cessory, see Jones v. State, 58 Ark. 390, 24 S. W. 1073, 1894. “Aforesaid” was used through er- ror, instead of “aforethought,” it was fatal. State v. Green, 42 La. Ann. 644, 7 So. 793, 1890. Compare: State v. Dale, 108 Mo. 205, 18 S. W. 976, 1891; Smith v. State, 21 Tex. App. 277, 17 S. W. 471, 1886. 4 [Ill] Usselton v. People, 149 IN. 612, 36 N. E. 952, 1894. [Mo.] State v. Lockwood, 119 Mo. 463, 24 S. W. 1015, 1894. [Va.] Weatherman v. Com. 1 Va. Dec. 819, 19 S. E. 778, 1894. [Wash.] Blanton v. State, 1 Wash. 265, 24 Pac. 439, 1890. 1 Reed v. State, 8 Ind. 200, 1856; Lester v. State, 9 Mo. 666, 1846. 2Reg. v. Plummer, 1 Car. & K. 600, 8 Jur. 921, 1844; Reg. v. Crump- ton, Car. & M. 597, 1842; Reg. v. Hughes, 7 Cox, C. C. 301, 1857, Dears. & B. CO. C. 248; Rex v. Friend, 1 Russ. & R. C. C. 20, 1802. 3 Reg. v. Ellis, 2 Car. & K. 470, 1846. § 652] HOMICIDE. 823 laid and the instrument proved are of the same nature and char- acter, there is no variance; where they are of opposite nature and character, the contrary.’ Thus evidence of a dagger will support the averment of a knife, though evidence of a knife 1 [Eng.] Rex v. Martin, 5 Car. & P. 128, 1832; Reg. v. Warman, 2 Car. & K. 195, 1 Den. C. C. 183. [Ind.] Dukes v. State, 11 Ind. 557, 71 Am. Dec. 370, 1858; West v. State, 48 Ind. 483, 1874. [Ky.] Thomas v. Com. 14 Ky. L. Rep. 288, 20 S. W. 226, 1892. [Me.] State v, Smith, 32 Me. 369, 54 Am. Dec. 578, 1851. [Mo.] State v. Hoffman, 78 Mo. 256, 1883. [N. J.] State v. Fox, 25 N. J. L. 566, 1856. [N. Y.] People v. Colt, 3 Hill, 432, 1842. {N. C.] State v. Smith, 61 N. C. (Phill. L.) 340, 1867. [Tenn.] Witt v. State, 6 Coldw. 5, 1868, [Wis.] Miller v. State, 25 Wis. 384, 1870. Statutory provisions—In many states the instrument of death need not be specified. —California, People v. Hong Ah Duck, 61 Cal. 387, 1882. —Louisiana, State v. Bartley, 34 La. Ann. 147, 1882. —New York, see People v. Colt, 3 Hill, 482, 1842. —Pennsylvania, see Rev. Act, 1860, sec. 28, Pamph. Laws, p. 435. Goer- son v. Com, 99 Pa. 388, 1882. —tTexas, Dwyer v. State, 12 Tex. App. 535, 1882. In Alabama an allegation of shoot- ing with # gun is not fatal where it was done with a pistol. Turner v. State, 97 Ala. 57, 12 So. 54, 1892. See Johnson v. State, 88 Ga. 203, 14 S. E, 208, 1891. In California, as to sufficiency of allegation in indictment or informa- tion charging murder, see People v. Hyndman, 99 Cal. 1, 33 Pac. 782, 1893; People v. Lee Look, 137 Cal. 592, 70 Pac. 660, 1902; People v. Suesser, 142 Cal. 356, 75 Pac. 1098, 1904; People v. Ung Ting Bow, 142 Cal. 342, 75 Pac. 899, 1904. In Kentucky, see Noble v. Com. 11 Ky. L. Rep. 867, 13 S. W. 429, 1890. In Maine the particular means need not be set out. See State v. Morrissey, 70 Me. 401, 1879. Under the Massachusetts statute, an indictment which alleges that the death was caused by a wounding, an exposure, and a starving, is not bad for duplicity, nor for failure to allege that the wounding, ex- posure, and starving were mortal, or of a mortal nature; and may be sustained by proof of death by any of the specified means. Com. v. Macloon, 101 Mass. 1, 100 Am. Dec. 89, 1869. In North Carolina, see State v. Gould, 90 N. C. 658, 1884. In Ohio a provision similar to that of Massachusetts as above set out exists as to indictments for man- slaughter. Act of May 6, 1869, § 7; Warren, Crim. Law, p. 180. In Pennsylvania particular means need not be set out. Volkavitch v. Com. 9 Sadler (Pa.) 327, 12 Atl. 84, 1888. Neither weapon nor wound need be described in some jurisdictions. [Mich.] People v. Bemis, 51 Mich. 422, 16 N. W. 794, 1883. [Nev.] State v. McLane, 15 Nev. 345, 1880. LN. J.] Conners v. State, 45 N. J. L. 340, 1883; Graves v. State, 45 N. J. L. 347, 46 Am. Rep. 778, 1883. [Tenn.] Alexander v. State, 3 Heisk. 475, 1872. As to cumulation of instruments, see Wharton, Crim. Pl. & Pr. § 158. As to pleading killing by burning produced by throwing a lighted lamp, see Mayes v. People, 106: Ill. 306, 46 Am. Rep. 698, 1883. “Knife or other instrument” is not a good averment in the indict- ment. Lundy v. State, 91 Ala. 100, 9 So. 189, 1890; Hornsby v. State, 94 Ala, 55, 10 So. 522, 1891; State v. Williamson, 106 Mo. 162, 17 S. W. 172, 1891. “Loaded with powder and ball,” averring. In Sims ry. Com, 12 Ky. L. Rep. 215, 13 S. W. 1079, 1890, held that indictment need not aver that pistol was loaded with powder and leaden ball, ete. 824 CRIMINAL LAW. [§ 652 will not support the averment of a pistol. But where the spe- cies of death would be different, as if the indictment allege a stabbing or shooting, and the evidence prove a poisoning or starving, the variance is fatal;*® and the same if the indictment state a poisoning, and the evidence prove a starving. Thus, where an indictment stated that the defendant assaulted the deceased, and struck and beat him upon the head, and thereby gave him divers mortal blows and bruises of which he died, and it appeared in evidence that the death was by the deceased fall- ing on the ground in consequence of a blow on the head received from the defendant, it was ruled that the cause of the death was not properly stated. But if it be proved that the deceased was killed by any other instrument, as with a dagger, sword, staff, bill, or the like, capable of producing the same kind of death as the instrument stated in the indictment, the variance will not be material. The same view is taken where one kind of shot 2 Rex v. Martin, 5 Car. & P. 128, 1832. Describing instrument producing death by two names—Where an indictment describes the instrument which caused the death by two names, it is sufficient if it be proved to be either. The prisoner was in- dicted for manslaughter, in causing the death of a female by negligently slinging a cask, which was described in the indictment as “a cask and puncheon;” and the indictment was objected to on the ground that it was so described; but Parke, J., held, that if it was either it was suffi- cient. Rigmaidon’s Case, 1 Lewin, C. C. 180, 1833. See Wharton, Crim. Ev. § 91. Averment that the killing was “with a gun loaded with gunpowder and leaden balls, and held in the hand” of defendant, does not suffi- ciently declare the killing. Haney v. State, 34 Ark. 263, 1879. Compare: State v. Crean, 438 Mont. 47, 114 Pac. 603, 1911; State v. Green, 4 Strobh. L. 128, 1836. —Infliction of mortal wound being alleged in addition, and.an aver- ment that deceased died of the wound inflicted, other necessary al- legations being present, would make the indictment good. See [Fla.] Cooper v. State, 47 Fla. 21, 36 So. 53, 1904. [Ill] McDonnall v. Peo- ple, 168 Ill. 93, 48 N. E. 86, 1897. [Ind.] Shepherd v. State, 64 Ind. 43, 1878; IKahlenbeck v. State, 119 Ind. 118, 21 N. E. 460, 1889; Freese v. State, 159 Ind. 597, 65 N. E. 915, 19038. [Mo.] State v. Nelson, 181 Mo. 340, 103 Am. St. Rep. 602, 80 S. W. 947, 1904; State v. Bailey, 190 Mo. 257, 88 S. W. 738, 1905; State v. Clay, 201 Mo. 679, 100 S. W. 439, 1907. Proof of striking with a pistol will not sustain an averment of cut- ting with a knife. See Phillips v. State, 68 Ala, 469, 1881. Charging co-operating causes—An indictment charging the death to have been occasioned by two co- operating causes, if the evidence fail to support one of the causes, is in- sufficient. Rex v. Sanders, 7 Car. & P. 277, 1835. 3 Rex v. Thompson, 1 Moody, C. C. 139. 4MacKalley’s Case, 9 Coke, 67a; Gilbert, Ev. 231; Rex v. Brigg, 1 Moody, C. C. 318, 1 Lewin, C. C. 61, 1831. See Rex v. Culkin, 5 Car. & P. 121, 1832; Rex v. Grounsell, 7 Car. & P. 788, 1837; Rex v. Tye, § 654] HOMICIDE. 825 is averred and another proved.® But where on an indictment for shooting with a pistol loaded with gunpowder and a bullet it appeared that there was no bullet in the room where the act was done, and no bullet in the wound; and it was proved that the wound might have been occasioned by the wadding of the pistol,—Bolland, B., Park and Parke, JJ., held the indictment not proved.® The same principle was applied where an indict- ment charged that the defendant struck the deceased with a brick, and it appeared that he knocked the deceased down with his fist, and that the deceased fell upon a brick which caused his death.” At common law, proof of striking with a gun will not sustain an averment of shooting.® § 653. —Variance in this respect is fatal. As we have already seen, the evidence must show that the death was caused by the particular blow described and proved.’ Thus in a case remarkable for the conflict of opinion among the assembled judges on other points, as well as for the public interest excited by the trial, all the judges concurred in the opinion, that where certain assaults were put in evidence, and relied on by the prose- cution as being the cause of death, but where the clear surgical testimony was that the death was caused by a blow on the head, of which there was no evidence whatever, the defendants were entitled to an acquittal.? § 654. When death is alleged to have ensued from com- pulsion or fright, circumstances must be averred. When 1 Russ. & R. C. C. 345, 1818; Rex v. Edwards, 6 Car. & P. 401, 1834; Rex v. Waters, 7 Car. & P. 250, 1 "Moody, C. C. 457, 1835. 5 Goodwyn v. State, 4 Smedes & M. 520, 1845. 6 See Rex v. Hughes, 5 Car. & P. 126, 1832. 7 [Eng.] Rex v. Kelly, 1 Moody, C. C. 113, 1 Lewin, C. C. 193, 1826. See Rex v. Wrigley, 1 Lewin, C. C. 127, 1829; Rex v. Martin, 5 Car. & P. 128, 1832. [Ark.] Edwards v. State, 25 Ark. 444, 1869. [N. Y.] People v. Tannan, 4 Park. Crim. Rep. 514, 1860. [Va.] Gibson v. Com. 2 Va. Cas. 111, 1817. It is not necessary to aver that the wound was not inflicted in a surgical operation. See Merrick v. State, 63 Ind. 327, 1878. 8Guedel v. People, 43 Ill. 226, 1867. See infra, § 663. As indictment under Code of West Virginia, see State v. Morgan, 35 W. Va. 260, 13 S. E. 385, 1891. 1See supra, §§ 194 et seq.; State v. Townsend, 1 Houst. Crim. Rep. (Del.) 337, 1871; White v. Com. 9 Bush, 178, 1872. 2Reg. v. Bird, Temple & M. C. C. 437, 5 Cox, C. ©. 11, 15 Jur. 193, 2 Den. C. C. 94, 20 L. J. Mag. Cas, N. 8. 70. As to variance in this respect, see Wharton, Crim. Ev. § 91. 826 CRIMINAL LAW. [§ 654 the deceased died by fright produced by an impending blow by an unknown weapon, this, under statute,-may be charged as a death from assault by a weapon unknown.? When death is alleged to have been produced by the deceased being led by fright to self-injury, then the indictment must specify the ap- prehension of immediate violence, arising from the circum- stances by which the deceased was surrounded; and it need not appear that there was no other way of escape; but it must be alleged that the step was taken to avoid the threatened danger.* But if the charge be that the prisoner “did compel and force” another person to do an act which caused the death of a third party, this allegation will require the evidence of personal effi- cient force applied to the person in question. Thus where it was stated in the indictment that the prisoner “did compel and force” A and B to leave working. at the windlass of a coal mine, by means of which the bucket fell on the head of the deceased, who was at the bottom of the mine, and killed him; and the evidence was that A and B were working at one handle of the windlass and the prisoner at the other, all their united strength being requisite to raise the loaded bucket, and that the prisoner let go his handle and went away, whereupon the others, being unable to hold the windlass alone, let go their hold, and so the bucket fell and killed the deceased,—it was held that this evi- dence was not sufficient to support the indictment.® § 655. Acts of agent or associate may be averred to be acts of principal. In accordance with the reasoning already given,’ poison administered by an agent, or injuries done by an agent, under the defendant’s direction, may be laid, under recent statutes, as administered by the defendant himself.* Where several are charged as principals, one as principal in the first degree and the others as present, aiding and abetting, it is not material which of them be charged as principal in the 1Cox v. People, 80 N. Y. 500, 3 Rex v. Lloyd, 1 Car. & P. 301, 1880. Sed quere. 4. 182 1Supra, § 203. 2Supra, § 206; Reg. v. Pitts, Car. & M. 284, 1842; Rex v. Evans, 1 Russell, Crimes, 651, 1812. When the death was immediately from fright produced by the defend- ant’s violence, the defendant is re- sponsible. Ibid. 2 Reg. v. Michael, 2 Moody, C. C. 120, 9 Car. & P. 356, 1840; Rex v. Spiller, 5 Car. & P. 333, 1832. See supra, § 256, where the cases are given at large; and see Wharton, Crim. Ev. § 102. § 657] HOMICIDE. 827 first degree, as having given the mortal blow, for the mortal injury done by anyone of those present is, in legal considera- tion, the injury of each and every one of them. It is other- wise when there is a local statute assigning distinct penalties to the degrees.* But an averment that the defendant was prin- cipal cannot, at common law, be supported by proof that he was accessory before the fact.° An accessory before the fact, under the statutes making such principals, may be indicted as prin- cipal.® § 656. Variance in description of poison not fatal. It may be generally stated that when one kind of poison is averred and another proved, the variance is not fatal.’ § 657. Scienter requisite in poisoning. A special scien- ter in cases of poisoning is usual,’ though in Pennsylvania, at a time when granting the allocatur for review was at the dis- 3 Supra, § 259; Fost. C. L. 551; 1 East, P. C. 350; [Eng.] Rex v. Culkin, 5 Car. & P. 121, 1832; Reg. v. O'Brian, 1 Den. C. C. 9, 2 Car. & K. 115, 1 Cox, C. C. 126, 1844. [Ala.] Brister v. State, 26 Ala. 107, 1855. [Cal.] People v. Cotta, 49 Cal. 166, 1874. [Ky.] Combs v. Com. 15 Ky. L. Rep. 620, 25 S. W. 276, 1894. [Mass.] Com. v. Chapman, 11 Cush. 422, 1853. [Mo.] State v. Stacy, 103 Mo. 11, 15 S. W. 147, 1890. [N. J.] State v. Mairs, 1 N. J. L. 453, 18538. [S. C.] State v. Fley, 2 Brev. 338, 4 Am. Dec. 583, 1809; State v. Jenkins, 14 Rich. L. 215, 94 Am. Dec. 132, 1867; State v. At- kinson, 40 S. C. 363, 42 Am. St. Rep. 877, 18 S. E. 1021, 1894. [Tex.] Watson v. State, 28 Tex. App. 34, 12 8. W. 404, 1889. See Wharton, Crim. Ev. § 102. 4Supra, § 259. 5 [Eng.] Reg. v. Fallon, 9 Cox, C. C. 242, Leigh & C. C. C. 217, 32 L. J. Mag. Cas. N. 8. 66, 8 Jur. N. S. 1217, 7 L. T. N. S. 471, 11 Week. Rep. 74, 1862; Rex v. Soares, 1 Russ. & R. C. C. 25, 2 East, P. C. 974, 1802. [Ala.] Hughes v. State, 12 Ala. 458, 1847. [Miss.] Joseph- ine v. State, 39 Miss. 613, 1860. [N. J.] State v. Wyckoff, 31 N. J. L. 65, 1864. See also supra, § 242. 6 [Ga.] Jordan v. State, 56 Ga. 92, 1876. [Ill.] Baxter v. People, 8 Ill. 368, 1846; Dempsey v. People, 47 Ill. 323, 1868; Yoe v. People, 49 Ill. 410, 1868. [Iowa] State v. Zeibart, 40 Iowa, 169, 1874. See also supra, § 278. As to requisite of indictment, see [Ill] Usselton v. People, 149 Ill. 612, 36 N. E. 952, 1894. [Ind.] Sage v. State, 127 Ind. 15, 26 N. E. 667, 1890. [Ky.] Polly v. Com. 15 Ky. L. Rep. 502, 24 S. W. 7, 1893. 12 Hale, P. C. 485; Rex v. Tye, 1 Russ. & R. C. C. 345, 1818; Rex v. Culkin, 5 Car. & P. 121, 1832; Rex v. Waters, 7 Car. & P. 250, 1 Moody, C. C. 457, 1835; Rex v. Grounsell, 7 Car. & P. 788, 1835; Rex. v. Martin, 5 Car. & P. 128, 1832. See Reg. v. O’Brian, 2 Car. & K. 115, 1 Den. C. C. 9, 1 Cox. C. C. 126, 1846; Reg. v. Warman, 2 Car. & K. 195, 1 Den. C. C. 163, 1844; Carter v. State, 2 Ind. 617, 1851; State v. Vawter, 7 Blackf. 592, 1845. As to ambiguous description of poison, see Rex v. Clark, 1 Brod. & B. 473. 1State v. Yarborough, 77 N. C. 524, 1877. Contra: State v. Slagle, 83 N. C. 630, 1880. As to forms, see Wharton, Prece- dents, 125, et seq. 828 CRIMINAL LAW. [§ 657 cretion of the court, the omission of the scienter (the indictment containing the averment “knowingly”) was held, after convic- tion, not ground for an allocatur.? In Massachusetts it is not necessary to aver in poisoning a specific intent to kill, when there are other allegations from which the scienter is inferable.® § 658. Unknown instruments need not be averred. If the instrument by which the homicide was committed be not known, it is enough for the indictment to aver such fact; and under the circumstances the want of specification will be ex- cused on the same principles as allow the nonsetting out of a stolen or forged paper, when such paper is lost or in the prison- er’s possession.” 2Com. v. Earle, 1 Whart. 525, 1836. 3Com. v. Hersey, 2 Allen, 173, [ 1861. Indictment for communicating in- fectious disease——In Fairlee v. Peo- ple, 11 Ill. 1, 1849, it was held that to sustain an indictment against A for designedly communicating an in- fectious disease to B through C, it must be shown that the defendant was aware of the infectiousness of the disease and communicated it in- tentionally. See Bittle v. State, 78 Md. 526, 28 Atl. 405, 1894. 1 Wharton, Crim. Ev. § 98; Whart- on, Crim. Pl. & Pr. § 156. [Cal.] People v. Davis, 73 Cal. 355, 15 Pac. Dec. 95, 1865; People v. Cronin, 34 Cal. 191, 1867, affirmed People v. Martin, 47 Cal. 101, 1873; People v. Hong Ah Duck, 61 Cal. 387, 1882. People v. Davis, 73 Cal. 355, 15 Pac. 8, 1887. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [N. H.] State v. Wood, 53 N. H. 484, 1873. [N. C.] State v. Williams, 52 N. C. (7 Jones, L.) 446, 78 Am. Dec. 248, 1860. [Tex.] Walker v. State, 14 Tex. App. 609, 1883. As to sufficiency of indictment for murder, see notes in 87 Am. Dec. 101 and 3 Am. St. Rep. 279. See also [Ark.] Edmonds v. State, 34 Ark. 724, 1879. [Cal.] People v. Kelly, 59 Cal. 377, 1881. [Ind.] Dukes v. State, 11 Ind. 557, 71 Am. Dec. 370, 1858; Cordell v. State, 22 Ind. 5, 1864; Jones v. State, 35 Ind. 123, 1871; Meiers v. State, 56 Ind. 342, There will be no variance if the indictment 1877. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. N. Y.] Cox v. People, 80 N. Y. 516, 1880. [N. C.] State v. Williams, 52 N.C. (7 Jones, L.) 446, 78 Am. Dee. 248, 1860. Indictment need not state means of commission of homicide, see [Ark.] Edmonds v. State, 34 Ark. 724, 1879. [Cal.] People v. King, 27 Cal. 507, 87 Am. Dec. 95, 1865; People v. Cronin, 34 Cal. 191, 1867; People v. Murphy, 39 Cal. 52, 1870; People v. Martin, 47 Cal. 101, 1873; People v. Hong Ah Duck, 61 Cal. 387, 1882; People v. Hyndman, 99 Cal. 1, 33 Pac. 782, 1893. [Mass.] Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [N. H.] State v. Dame, 11 N. H. 271, 35 Am. Dee. 495, 1840. [N. Y.] Cox v. People, 80 N. Y. 501, 1880. “In manner and means and by in- strument to jury unknown.” In State v. Burke, 54 N. H. 92, 1873, it was held sufficient to aver that the defendant, “in some way and manner, and by some means, instru- ment, and weapon, to the jurors un- known,” killed and murdered the de- ceased. Same principle in Com. v. Mar- tin, 125 Mass. 394, 1878, where it was held that where an indictment charges the defendant in one count with killing by a certain weapon, and in another count with killing by means and instruments to the grand jurors unknown; and at the trial the killing by the defendant is § 660] HOMICIDE. 829 in this respect conforms to the information before the grand jury.” But the instrument must be either specifically defined, or the want of such specification must be excused by the aver- ment that the instrument was unknown? § 659. When counts are inconsistent, verdict should be taken on good counts. In one count of an indictment for rmourder the death was stated to be by a blow of a stick, and in another by the throwing of a stone. The jury found the pris- oners guilty of manslaughter generally, on both counts, and the judges held the conviction right, and that judgment could be given upon it; and it was said that these are not inconsistent statements of the modes of death, but that, if they had been so, no judgment could have been given on the verdict.’ In this country the practice is to take a verdict of guilty if either count is sustained by the evidence, no matter how inconsistently the instrument may be stated in other counts.” The proper course, no doubt, is to take the verdict on the count sustained by the evidence. Yet, in most jurisdictions,’ after a general verdict of guilty, the counts containing the misdescription may be removed by nolle prosequi, and judgment entered on the good count. § 660. Value need not be proved. The allegation of value of instrument is now immaterial, and need not be proved. In England, where deodands are still recognized, it may be necessary to introduce it; though as this provision does not exist in this country the reason fails.* proved beyond a reasonable doubt amd there is no evidence of the par- ticular means of death, the jury may convict on the latter count. Com. v. Coy, 157 Mass. 200, 32 N. E. 4, 1892; People v. Wright, 1386 N. Y. 625, 32 N. E. 629, 1892. Alleging instrument cumulatively. —A count is not bad for duplicity which avers that the blows causing death were struck with a “piece of iron, a sledge, and a shovel.” Jack- son v. State, 39 Ohio St. 37, 1883. [N. Y.] Cox v. People, 80 N. Y. 500, 1880, cited supra, §§ 209, 654. 2 [Ark.] Edmonds v. State, 34 Ark. 720, 1879. [Neb.] Olive v. State, 11 Neb. 1, 7 N. W. 444, 1881. 8 Johnson v. State, 90 Ga. 441, 19 S. E. 92, 1892; Drye v. State, 14 Tex. App. 185, 1883. 1 Reg. v. O’Brian, 2 Car. & K. 115, 1 Den. C. C. 9, 1 Cox. C. C. 126, 1846. 2Infra, § 673; Lanergan v. Peo- ple, 39 N. Y. 39, 1868; State v. Baker, 63 N. C. 276, 1869. See Peo- ple v. Davis, 56 N. Y. 95, 1874. As to varying the agency of de- fendant, Reg. v. O’Brian, 2 Car. & K. 115, 1 Den. C. C. 9, 1 Cox, ©. C. 126, 1846; People v. Valencia, 43 Cal. 552, 1872. Infra, § 673. 8 Wharton, Crim. Pl. & Pr. § 907. 11 East, P. C. § 108, p. 341. 21 Hale’s Pleas of the Crown, by Messrs. Stokes & Ingersoll, 424. 830 CRIMINAL LAW. [§ 661 § 661. Allegation of hand of defendant need not be made. Though the hand in which the instrument was held is set out in the old forms, it is now not necessary either to make or to prove the allegation.’ § 662. Averment of time need not be repeated. The time need not be formally repeated: “then and there” carries the averment back to the original date.’ Even if the “then and there” be omitted, it would seem that the court will still give judgment on the indictment, if the grammatical construc- tion be such as to apply the time at the outset to the subsequent allegations. But where two distinct periods have been averred, the statement “then and there” igs not enough; one particular time should be averred.? § 663. Word “struck” essential where there has been a blow. Wherever death is caused by a blow, it is essential to the indictment that it should allege that the defendant struck the deceased ;? and this must also be proved; though in Virginia it has been ruled that where the instrument was a dagger, “stab, stick, and thrust” would be held equivalent to strike; and such ig no doubt the general rule.? 12 Hawk, P. C. chap. 23, §§ 76- 4; 1 East, P. C. 341; 1 Starkie, Crim, Pl. 2d ed. 92, 1 Russell, Crimes, 9th Am. ed. 7538, et seq.; Archbold, Crim. Pr. & Pl. 10th ed. 407; Coates v. People, 72 Ill. 303, 1874; Com. v. Costley, 118 Mass. 1, 1875; Com. v. Robertson, 162 Mass. 90, 38 N. EH. 25, 1894. 1 Wharton, Crim. Pl. & Pr. §§ 120, et seq., 184; State v. Howard, 92 N. C. 772, 1885; Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010, 1889. 2See, for authorities, Wharton, Crim. Pl. & Pr. §§ 131, 1382. Indictment against two charging injuries by each on different days.— An indictment against two which charges an injury done by one of them on one day, and another injury done by the other on another day, and that the death arose from both, is bad, where there is no averment that the one was present when the act was done by the other. Reg. v. Devett, 8 Car. & P. 639, 1838. Charging homicide “on or about.” —Where indictment charged murder It is not necessary, however, as was committed “on or about the 25th day of March,” etc., “on or about” is surplusage. State v. Me- Carthy, 44 La. Ann. 323, 10 So. 673, 1892. 1See Long’s Case, 5 Coke, 122a; 2 Hale, P. C. 184; 2 Hawk. P. C. chap, 23, § 82; and see [Ark.] Han- ey v. State, 34 Ark. 263, 1879. [Del.] State v. Woods, 7 Penn, (Del.) 499, 77 Atl. 490, 1896. [Tex.] Edmondson v. State, 41 Tex. 496, 1874. Assault need not be charged in formal and express terms in an in- dictment for murder. Waggoner v. State, 155 Ind. 341, 80 Am. St. Rep. 237, 58 N. E. 190, 1900. Charging accused inflicted several wounds on the head of deceased by striking in and upon the head with certain described deadly weapons sufficiently charges that defendant struck and killed deceased with the weapon described. Thomas v. State, 58 Fla. 122, 61 So. 410, 1910. 2Gibson v. Com, 2 Va. Cas. 111, 1817. § 665] HOMICIDE, 831 has been seen, to prove that the defendant struck the deceased with a particular instrument mentioned in the indictment; and, therefore, although the indictment allege that the defendant did strike and thrust, proof of a striking which produced contused wounds only will maintain the indictment.® “Firing” is not a sufficiently exact mode of averring “shoot- ing;” * nor is “striking.” ® § 664. “Strike” not necessary when poison or other methods of death, not involving wounds, are used. Where the nature of the injury does not admit of the averment of a stroke, it is enough if the special instruments themselves are correctly enumerated.’ “Strangulation” and “choking” have been held sufficient to indicate the mode of killing.” § 665. General description of place of wound sufficient. In the old practice it was held that the indictment must show in what part of the body the wound was inflicted, though it was said that if the wound be stated to be on the right side, and be proven to be on the left, the variance is not fatal.’ It is now, however, generally conceded that “upon the body” is a sufficient averment of location,* though if the description be 3 Archbold, Crim. Pr. & Pl. 10th ed. 486. See supra, § 653. 3 As to averment of throwing stones, see Rex v. Dale, 1 Moody, C. [ C. 5; and see Turns v. Com. 6 Met. 224, 1843; White v. Com. 6 Binn. 179, 1838, 6 Am, Dec. 443, 1813. 4Shepherd v. State, 54 Ind. 25, 1876. 5Guedel v. People, 43 IH. 226, 1867. 1 Rex v. Webb, 2 Lewin, C. C. 196, 1 Moody & R. 405, 1823, Rex v. Tye, 1 Russ. & R. C. C. 345, 1818. 2 Redd v. State, 69 Ala. 255, 1881. 12 Hale, P. C. 186; Archbold, Crim. Pr. & Pl. 384. [Ind.] Dias v. State, 7 Blackf. 20, 39 Am. Dec. 448, 1843. [Tex.] Nelson v. State, 1 Tex. App. 41, 1876. [Va.] Custis v. Com. 87 Va. 589, 13 S. E. 73, 1891, As to variance, see Bryan v. State, 19 Fla. 864, 1883. 2[Ind.] Whelchell v. State, 23 Ind. 89, 1864; Jones v. State, 35 Ind. 122, 1871. [Kan.] State v. Yordi, 30 Kan. 221, 2 Pac. 161, 1883. [Mo.] State v. Draper, 65 Mo. 335, 27 Am, Rep. 287, 1877; State v. Sanders, 76 Mo. 35, 1882. N. Y.] Sanchez v. People, 22 N. Y. 147, 1860; Real v. People, 42 N. Y. 270, 1870; People v. Davis, 56 N. Y. 95, 1874. [Tex.] Thompson v. State, 36 Tex. 326, 1871. As to propriety of setting out par- ticularly the locality of the wound, see Williams v. State, 1 Tex. App. 465, 1876. Part of body need not be stated on which wound inflicted. State v. Bronstine, 147 Mo. 520, 49 S. W. 512, 1899. Indictment for murder by inflict- ing mortal wound is sufficient with- out stating in what particular part ot the body the wound was inflicted. Roberson v. State, 42 Fla. 223, 28 So. 424, 1900; Bowens v. State, 106 Ga. 760, 32 S. E. 666, 1899. When a part of the body is de- scribed, this is to be taken in a popular, and not scientific, sense. Rex. v. Edwards, 6 Car. & P. 401, 1834. 832 CRIMINAL LAW. [§ 665 inconsistent this may be bad on demurrer.’ Nor is a variance which does not prejudice the defendant material.* § 666. Term “wound” to be used in popular sense. The term “wound” has had two distinct interpretations given to it; the first, under the ordinary common-law indictments for homicide ; the second, under the English and American statutes making “wounding” specifically indictable. When the term “wound” is used in an indictment for homi- cide (2. e., in the clause, giving unto the deceased one mortal wound, etc.), the term is used in a popular sense, and is under- stood to include bruises, ete. Where, however, the indictment is under a statute making “wounding” specifically indictable, the construction varies with the terms of the statute. Under 7 Will. IV. and I. Vict., which makes it indictable to “stab, cut, or wound,” ete., it was held by Lord Denman, C. J., and Park, J., in 1837, that a blow given with a hammer on the face, whereby the skin was broken internally but not externally, was a “wounding.”*® But in 1838, Coleridge, J., Bosanquet, J., and Coltman, J., held that a blow with a stone bottle, which did not break the skin, was not a wounding; and the court said, “to constitute a wound, that the skin should be broken, it must be the whole skin, and it is not sufficient to show a separation of the cuticle only.” ® But under the statutes the injury must be inflicted by “some instrument, and not by the hands or teeth;” and hence biting off the joint of a finger, and biting off the end of the nose, have been held not “wounding” within the statutes. And go of in- juries inflicted by throwing oil of vitriol on the face.® But it 2Reg. v. Smith, 8 Car. & P. 178, —“Upon the head” is sufficient; 1837. See, to samc effect, Reg. v. Com. v. Robertson, 162 Mass. 90, 38 N. E. 25, 1894. —For meaning of “body,” see Walker v. State, 34 Fla. 167, 43 Am. St. Rep. 186, 16 So. 80, 1894. See also 1 Words & Phrases, 819. 3 Dias v. State, 7 Blackf. 20, 39 Am. Dec. 448, 1843. 4Bryan v. State, 19 Fla. 864, 1883; State v. Kamsey, 82 Mo. 133, 1884. 1Reg. v. Warman, 2 Car. & K. 195, 1 Den. C. C. 185, 1846, State v. Leonard, 22 Mo. 449, 1856. Waltham, 3 Cox, C. C. 442, 1849. 3 Reg. v. M’Loughlin, 8 Car. & P. 635, 1838; S. P. Rex v. Wood, 1 Moody, C. C. 278, 18380; 4 Car. & P. 381, 1830. See Reg. v. Jones, 3 Cox, C. C. 441, 1848; Moriarty v. Brooks, 6 Car. & P. 684, 1834. 4Jennings Case, 2 Lewin, C. C. 180, 1823; Rex v. Harris, 7 Car. & P. 446, 1836. 5 Rex v. Murrow, 1 Moody, C. C. 456, 1835; Henshall’s Case, 2 Lewin, C. C. 135. § 667] HOMICIDE, 833 is otherwise with an injury inflicted by a kick from a shoe.® A scratch, when there is no breaking of the skin, is no wound.” Nor is an internal dislocation.® § 667. Exactness no longer necessary in description. It was formerly held to be necessary to insert a full description of the wound.’ such particularity.” The present rule, however, is to require no Where the death was occasioned by a bruise, a description of its dimensions is not necessary.* Even of an incised wound, the dimensions need no longer be set forth.* 6 Rex v. Briggs, 1 Moody, C. C. 318, 1 Lewin, C. C. 61, 1831. 7Rex v. Beckett, 1 Moody & R. 526, 1824; Moriarty v. Brooks, 6 ‘Car. & P. 648, 1834; 2 Wharton & S. Med. Jur. § 1137. 8 Anonymous cited Elwell, Mal- practice, 316. 12 Hale, P. C. 185, 186; 2 Hawk. P. C. chap. 23, §§ 80, 81; Trem. Ent. 10; Staundf. 786, 79a; Yong’s Case, 4 Coke, 40, 41; Long’s Case, 5 Coke, 120, 121b, 122; Hall’s Case, Cro. Jac. ‘95; Stark. Crim. L. 375, 380. 2[Eng.] Rex v. Tomlinson, 6 Car. & P. 370, 1834; Turner’s Case, 1 Lewin, C. C. 177, 1830; Rex v. Mosley, 1 Moody, C. C. 98, 1 Lewin, C. C. 89, 1825. [Fla.] Hodge v. State, 26 Fla. 11, 7 So. 593, 1890. [Ind.] West v. State, 48 Ind. 483, 1874. [La.] State v. Robertson, 30 La. Ann. 340, 1878. [Mass.] Com. v. Woodward, 102 Mass. 155, 1869; ‘Com. v. Coy, 157 Mass. 200, 32 N. E. 4, 1892; Com. v. Robertson, 162 Mass. 90, 88 N. E. 25, 1894. [Mo.] ‘State v. Snell, 78 Mo. 240, 1883. Wound need not be described. ‘State v. Bronstine, 147 Mo. 520, 49 ‘SS. W. 512, 1899; State v. Blan, 7 Mo. App. 582, 1879, affirmed in 69 Mo. 317, 1879. Some cases hold that in case of ‘simple incised wound description thereof is necessary. Com. v. Chap- ‘man, 11 Cush. 422, 1853. Compare: Com. v. Woodward, 102 Mass. 159, 1862. —Length and depth of wound need not be given. State v. Owen, 5 N. Crim. L. Vol. I.—53. C. (1 Murph.) 452, 4 Am. Dec. 571, 2 Wheeler, C. C. 260, 1810. Describing impossible wound will not render an indictment for homi- cide defective because it need not de- scribe the wound, nor state the part of the body on which inflicted. State v. Bronstine, 147 Mo. 520, 49 S. W. 512, 1899. Indictment for homicide by shoot- ing need not allege that wounds were inflicted by the shooting, or that the wounds were mortal and re- sulted in death, where the indict- ment distinctly charges deceased was killed and murdered by the accused at a fixed place, and on a certain time, by the means described. State v. McGaffin, 36 Kan. 315, 13 Pac. 560, 1887; State v. Kirby, 62 Kan. 436, 63 Pac. 752, 15 Am. Crim. Rep. 212, 1901. 8 State v. Owen, 5 N.C. (1 Murph.) 452, 4 Am. Dec. 571, 1810. Contra: State v. Moses, 13 N. C. (2 Dev. L.) 452, 1830, afterward cor- rected by statute. Indictment merely alleged the giv- ing of “one mortal bruise,” and it was urged that the dimensions of the bruise ought to have been de- scribed. Mr. J. Parke said: “I am disposed to go further than the judges in Mosley’s Case, 1 Lewin, C. C. 19, and to say that it is not nec- essary to describe the bruise at all, such rule being, in my judgment, most consistent with common sense.” Turner’s Case, 1 Lewin, C. C. 177, 1830. 4[Il.] Stone v. People, 3 Ill. 326, 834 CRIMINAL LAW. {§ 668 § 668. When two wounds are averred, either may be proved. Where an indictment for murder charged the defend- ant with having shot the deceased in the head, breast, and side, giving to him one mortal wound, of which mortal wound he then and there instantly died, it was held, that if either of the wounds described proved mortal, the indictment would thereby be sus- tained; * and this results from the principle that proof of either mortal wound is sufficient. Thus, on the trial of an indictment for murder, charging the killing to have been effected by shoot- ing the deceased in the head, it being proved that there were two bullet wounds, one in the head and the other in the body, either of which would produce death, the refusal of the court to charge, that “if the proof fails to show which wound it was that actually killed, the case is not made out according to the indictment,” is not error.” § 669. “Death” must be averred. The wound must be alleged to have been “mortal,” ? distinctly averred.? 3840. [Ind.} Dillon v. State, 9 Ind. 408, 1857; Jones v. State, 35 Ind. 122, 1871. |me.] State v. Conley, 39 Me. 78, 1854. [Mass.] Com. v. Chap- man, 11 Cush. 422, 1853; Com. v. Woodward, 102 Mass. 155, 1869. [Tex.] Smith v. State, 43 Tex. 643, 1875. [Va.] Lazier v. Com. 10 Gratt. 708, 1853. Alleging death by ravishing—An indictment which states the death to have been caused by means of rav- ishing an infant, but omits to aver that a mortal wound or bruise was given, is defective. Rex v. Lad, 1 Leach, C. L. 96, 1773. 1Hamby v. State, 36 Tex. 523, 1872. See supra, § 652; Wharton, Crim. Ev. § 134. 2Com. v. Coy, 157 Mass. 200, 32 N. HE. 4, 1892; Real v. People, 42 N. Y. 270, 1870. 1State v. Morgan, 85 N. C. 581, 1881. Causal relation between wound and death must be stated. Waybright v. State, 56 Ind. 122, 1877. Information for murder charging assault by shooting deceased with gun, which omits the words, “there- by giving to him one mortal wound,” and death therefrom must be and not using words of similar im- port, held insufficient. State v. Birks, 199 Mo. 263, 97 S. W. 578, 1906. It is enough to allege that the de- ceased died of the wound. It is not necessary to aver that he died of the stroke. State v. Conley, 39 Me. 78, 1854. 2[Eng.] Rex v. Lad, 1 Leach, C. L. 96, 1773. [Ind.] Shepherd v. State, 64 Ind. 43, 1878; Littell v. State, 133 Ind. 577, 33 N. E. 417, 1893. [Me.] State v. Conley, 39 Me. 78, 1854. [Mo.] State v. Blan, 69 Mo. 317, 1879. Manner of death must be alleged. Adams v. State, 28 Fla. 511, 10 So. 106, 1891; Wood v. State, 22 Ind. 269, 1883. Killing of deceased by defendant must distinctly appear. State v. Edwards, 70 Mo. 480, 1879. Indictment against two—Different injuries inflicted separately.—An in- dictment against two defendants, which states the death to be the result of two different injuries in- flicted by each of the defendants separately, on different days, is bad. Reg. v. Devett, 8 Car. & P. 639, 1838. § 670] HOMICIDE. 835 The averment of “languishing” is a matter of surplusage, and may be stricken out as such. § 670. —Must have been within a year anda day. The death must appear to have been within a year and a day of the wound.? mediately” is insufficient.’ 3 [Me.] State v. Conley, 39 Me. 78, 1854. [Mo.] State v. Luke, 104 Mo. 563, 16 S. W. 242, 1891. [Pa.] State v. Bell, Addison (Pa.) 156, 1 Am. Dec. 298, 1793. See Wharton, Crim. Ev. §§ 188 et seq. Indictment charging prisoner did administer the poison to the de- ceased, who took and swallowed it, by means of which taking and swal- lowing the deceased became mortally sick, and “of the said mortal sickness died,” is good, without also stating that the deceased died of the poicon- ing. Reg. v. Sandys, Car. & M. 345, 2 Moody, C. C. 227, 1841. Indictment charged prisoner with having inflicted upon deceased a mor- tal wound, of which mortal wound he did, on the 27th day of June, lan- guish, and languishing did live until the 28th day of June, “on which said 28th day of June, in the year afore- said, the said Richard O’Leary, in the county aforesaid, died.” It was held that it sufficiently charged that the deceased then died of the mortal wound inflicted by the prisoner. Lutz v. Com. 29 Pa, 441, 1857. An indictment stated that the mor- tal wound was inflicted on the 7th of November, 1845, and that the de- ceased languished on until the 8th of November, in the year aforesaid, and then said: “On which 8th day of May, in the year aforesaid, the de- ceased died.” To this indictment the prisoner pleaded not guilty. It was held that the insertion of “May” for “November” was a mistake, apparent on the face of the indictment, and would not exclude proof of the death subsequent to the 7th of November, or be cause for arresting the judg- ment. Com. v, Ailstock, 3 Gratt. 650, 1846. The date of the death, therefore, as well as that of the stroke, must distinctly appear,? and for this purpose Variance as to either, however, ‘“m- For a similar error, see State v. Katon, 75 Mo. 586, 1882. —Death after “languishing” must be averred. State v. Sides, 64 Mo. 383, 1877. An indictment charging man- slaughter properly alleged killing by striking and injuring deceased on the head with a stake, and by alleging deceased “lingered, and lingering did die,’ sufficiently describes the injury resulting in death. Bruner v. State, 58 Ind. 159, 1877. 1[Ark.] Brassfield v. State, 55 Ark, 556, 18 8. W. 1040, 1892. [Cal.] People v. Aro, 6 Cal. 207, 65 Am. Dec. 503, 1856; People v. Kelly, 6 Ca]. 210, 1856. [Mass.] Com. v. Par- ker, 2 Pick. 550, 1824; Com. v. Mac- loon, 100 Mass. 1, 100 Am. Dec. 89, 1869. [Neb.] Debney v. State, 45 Neb. 856, 34 L.R.A. 851, 64 N. W. 446, 1895. [N. C.] State v. Orrell, 12 N. C. (1 Dev. L.) 139, 17 Am. Dee. 563, 1826. [Tenn.] Percer v. State, 118 Tenn. 765, 103 S. W. 780, 1907. [Tex.] Edmondson v. State, 41 Tex. 496, 1874; Harding v. State, 4 Tex. App. 355, 1878. See also supra, § 436. Death within year and a day be- fore the finding of the indictment must be affirmatively shown by the proof. Percer v. State, 118 Tenn. 765, 103 S. W. 780, 1907. 2[Me.] State v. Conley, 39 Me. 78, 1854. [Mo.] Lester v. State, 9 Mo. 666, 1846; State v. Mayfield, 66 Mo. 125, 1877. [Nev.] State v. Huff, 11 Nev. 17, 1876. See Wharton, Crim. Pl. & Pr. § 131; and cases cited to § 874. Compare: State v. Harp, 31 Kan. 496, 3 Pac. 432, 1884; State v. Hobbs, 33 La. Ann. 226, 1881. 8 Wharton, Crim. Pl. & Pr. § 132; 836 CRIMINAL LAW. [§ 670 with the qualification just announced, is not fatal. The aver- ment that the defendant “killed” the deceased on a certain day implies that the latter died on such day,® and when such date is distinctly averred, it is then enough to say that the deceased “then and there” died.® It has been held, however, that this averment is insufficient when it appears that the blow and the death were at different places.” “Instantly died” does not sufficiently aver time of death,® though it is otherwise when “then and there” are added.® The general effect of the averment “then and there” is con- sidered in another work.’? § 671. Place must be averred. The indictment at com- mon law should also aver, in accordance with the facts, the place of the death of the deceased.? State v. Testerman, 68 Mo. 408, 1878. 4 Wharton, Crim. Pl. & Pr. § 139; State v. Haney, 67 N. C. 467, 1872. 5 State v. Ryan, 13 Minn. 371, Gil. 343, 1868. 6 Com. v. Robertson, 162 Mass. 90, 38 N. E. 25, 1894; State v. Haney, 67 N. C. 467, 1872. 7 Chapman v. People, 39 Mich. 357, 1878. 8 Reg. v. Brownlow, 11 Ad. & El. 119, 3 Perry & D. 52, 9 L. J. Mag. Cas. N. S. 15, 4 Jur. 103, 1839; State v. Lakey, 65 Mo. 217, 1877. 9 State v. Steeley, 65 Mo. 218, 27 Am. Rep. 271, 1877. See State v. Ward, 9 Mo. App. 587, 74 Mo. 253, 1881; Com. v. Ailstock, 3 Gratt. 650, 1846. 10 Wharton, Crim. Pl. & Pr. § 132. Supra, § 602. 12 Hawk. chap. 25, § 36; 1 Ch. C. L. 178; 3 Id. 732. [U. S.] Ball v. United States, 140 U. S. 118, 35 L. ed. 377, 11 Sup. Ct. Rep. 761, 1891. [Ala.] Burton v. State, 141 Ala. 32, 37 So. 435, 1904. [Ark.] Brassfield v. State, 55 Ark, 556, 18 8. W. 1040, 1892. [Cal.] People v. Cox, 9 Cal. 32, 1858. [D. C.] Lanckton v. Unit- ed States, 18 App. (D. C.) 348, 1901. [Fla.] Smith v. State, 42 Fla. 236, 27 So. 868, 1900. [Miss.] Riggs v. State, 26 Miss. 51, 1853; Coleman v. State, 83 Miss. 290, 64 L.R.A. 807, 35 So. 987, 1 A. & E. Ann. Cas. 406, 1904. [N. C.] State v. Orrell, 12 N. C. (1 Dev. L.) 189, 17 Am. Dec. 563, 1826. [S. C.] State v. Coleman, 17 S. ©, 473, 1882. [Va.] Com. v. Lin- ton, 2 Va. Cas. 205, 1820; Bacciga- lupo v. Com. 33 Gratt. 807, 36 Am. Rep. 795, 1880. See this point discussed, supra, §§ 339-341. Aiding and abetting sufficiently charged where indictment, after char- ging the commission of the crime at a particular place, on a certain day, adds that A “then and there” aided and abetted. State v. Long, 209 Mo. 366, 108 S. W. 35, 1908. Allegation of crime committed in Cook county but no allegation that it was committed within the city limits of the city of Chicago. Pre- sumption of law is that the crime was committed outside of the city limits, and therefore not triable in the municipal court. People v. Strassheim, 228 Ill. 581, 81 N. E. 1129, 1907. Homicide laid in city; indictment not defective because it omits to al- lege the precise locality of the house where committed. Lanckton v. Unit- ed States, 18 App. D. C. 348, 1901; Baccigalupo v. Com. 33 Gratt. 807, 36 Am. Rep. 795, 1880. See Com. v. Howard, 205 Mass. 128, 91 N. E. 397, 1907. Murder on high seas; indictment need not specify locality where of- § 672] HOMICIDE. 837 Where the stroke was at one time and place, and the death at another time and place, the facts should be specially averred, specifying the day on which the party died, as well as that on which he was stricken ; for until he died it was no murder.’? § 672. Omission of terms “malice aforethought” and “murder” reduces the case to manslaughter. Where the bill of indictment is found by the grand jury a true bill for manslaughter, and ignoramus as to murder, it is stated to have been the English course to strike out, in the presence of the grand jury, the words “maliciously” and “of malice afore- thought,” and “murder,” and to leave only so much as makes the bill to be one for manslaughter,’ and this appears to be the practice at the present time upon some of the circuits; but the usual course in this country is, unless the emergency of the case prevents it, to present a new Dill to the grand jury for man- slaughter. And in England a learned judge went so far as to say that this should be done where the grand jury have returned manslaughter. upon a bill for murder, saying, he thought it the better course to prefer a new bill, although the usual course on the cireuit had been to alter the bill for murder, on the finding of the grand jury.” The omission of the terms “malice afore- thought” and “murder” makes the indictment incapable at com- mon law of sustaining a conviction of murder.’ fense committed. Anderson v. Unit- ed States, 170 U. S. 481, 42 L. ed. 1116, 18 Sup. Ct. Rep. 689, 1898. Setting out title of court of coun- ty, under statutory provision, and then describing the offense or the stroke producing the wound causing death, without adding the words “then and there,” is sufficient. State v. Rankin, 150 Iowa, 701, 130 N. W. 732, 1911. 21 East, P. C. chap. 5, § 117, p. 347. See supra, §§ 339-341. As to where crime committed part- ly in one county and partly in an- other, see Watt v. People, 126 Ill. 9, 1 L.R.A. 403, 18 N. BE. 340, 1888; Graham v. People, 181 Ill. 477, 47 L.R.A. 731, 55 N. E. 179, 1899. As to where crime begun in one state and consummated in another, see: Ex parte McNeeley, 36 W. Va. If there are 84, 15 L.R.A. 226, 32 Am. St. Rep. 831, 14 S. E. 436, 1892. As to where crime committed by shooting across state boundary, see: State v. Hall, 114 N. C. 909, 28 L.R.A. 59, 41 Am, St. Rep. 822, 19 S. E. 602, 1894. See full collection of authorities in note in 28 L.R.A. 59. 12 Hale, P. C. 162. 2 Turner’s Case, 1 Lewin, C. C. 176, 1830. 8 [Eng.] Nicholson’s Case, 1 East, P, C. 346, 1798. [Ala.] Etheridge v. State, 141 Ala. 29, 37 So. 337, 1904; Sanders v. State, — Ala. App. —, 56 So. 69, 1911. [Mass.] Com. v. Davis, 11 Pick. 438, 1831; Com. v. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850; Com. v. Chapman, 11 Cush. 422, 1853. [Miss.] Buchanan v. State, 97 Miss. 839, 53 So. 399, 1910. [Mo.] State 838 CRIMINAL LAW. [§ 672 proper averments of killing, however, there can be a conviction of manslaughter under such an indictment.* v. Brown, 168 Mo. 449, 68 S. W. 568, 1902; State v. Woodward, 191 Mo. 617, 90 S. W. 90, 1905. [Va.] Com. v. Gibson, 2 Va. Cas. 70, 1817; Maile v. Com. 9 Leigh, 661, 1839. See, for other cases, supra, § 650. “Express” need not be used before the phrase “malice aforethought.” White v. State, — Tex. Crim. Rep.—. 42 8. W. 308, 1897. Facts constituting malice need not be alleged. Alsop v. Com. 4 Ky. L. Rep. 547, 1882. Indictment for murder charging “Did unlawfully, wilfully, felonious- ly, and of his malice aforethought, and after deliberation and premedita- tion, kill and murder,” etc., need not add the word “malicious.” Hamil- ton v. State, 62 Ark. 543, 36 S. W. 1054, 1896. —Feloniously, premeditatedly, and from malice aforethought did strike and beat deceased, etc., inflicting and giving him on the head a mortal wound,” held insufficient because of failure to allege that fatal stroke was given feloniously and of malice aforethought. State v. Woodward, 191 Mo. 617, 90 S. W. 90, 1905. —Homicide in attempt to commit robbery; sufficiently charges murder in the second degree without the use of the word “malice.” Lindsey v. State, 69 Ohio St. 215, 69 N. E. 126, 1903. —Unlawfully and with malice did,” etc., insufficient for failure to charge act done “with malice afore- thought.” Etheridge v. State, 141 Ala, 29, 37 So. 337, 1904; Williams v. State, 45 Fla. 128, 34 So. 279, 1903. —Unlawfully, feloniously, and from a premeditated design to effect the death,” etc., need not further al- lege the shcoting was with “malice,” or “malice aforethought.” Williams v. State, 45 Fla. 128, 34 So. 279, 1903. Under Alabama statute, “malice of aforethought,” used in place of the phrase “malice aforethought,’ is sufficient. Flowers v. State, — Ala. App. —, 56 So. 98, 1911. Under Colorado statute, which makes offense of producing miscar- riage murder when woman dies, but which makes malice an ingredient of the crime, an indictment in the lan- guage of the statute, without char- ging malice, is sufficient. Johnson v. People, 33 Colo. 224, 108 Am. St. Rep. 85, 80 Pac. 138, 1905. Under Louisiana statute, which, in defining murder, uses the words “of his malice aforethought,” an indict- ment -in the words “with malice aforethought” is sufficient. State v. Fletcher, 127 La. 602, 53 So. 877, 1910. Under Montana statute, which de- fines murder as the unlawful killing of a human being with malice afore- thought, an indictment charging ac- cused, of his “deliberately, premedi- tated” malice aforethought, etc., held good. The words quoted qualify the malice, and need not have been in- serted. State v. Nielson, 38 Mont. 451, 100 Pac. 229, 1909. Under Oregon statute, an indict- ment for involuntary manslaughter or involuntary killing while commit- ting an unlawful act, need not al- lege malice. State v. Whitney, 54 Or. 438, 102 Pac. 288, 1909. Under Texas statute, an indict- ment which uses “of his malice afore- thought,” instead of “with malice aforethought,” is sufficient. Rocha v. State, 43 Tex. Crim. Rep. 169, 63 8. W. 1018, 1901. Under Washington statute, indict- ment for murder alleging that the kiling was done purposely and with premeditated malice is sufficient. State v. Tommy, 19 Wash. 270, 53 Pac. 157, 1898. Under Wisconsin statute, see Chase v. State, 50 Wis. 510, 7 N. W. 376, 1880. : 4If a person be indicted as acces- sory after the fact to a murder, he may be convicted as accessory after the fact to manslaughter, if the of- fense of the principal turns out to be manslaughter. Reg. v. Greenacre, 8 Car. & P. 35, 1837. § 674] HOMICIDE. 839 § 673. Varying counts may be joined. The joinder of counts, being common to indictments generally, is discussed at large in another work.’ It is sufficient here to repeat that counts varying the statements of the mode of death are constant- ly sustained;* and that an indictment for murder charging in one count A as principal and B as accessory before the fact, and in another count B as principal and A as accessory before the fact, charges but one offense, and such counts are not re- pugnant.® XV. Verpict. § 674. Conviction or acquittal of manslaughter acquits of murder. Where the jury convicts of manslaughter (or of murder in the second degree), the verdict, in order to be tech- nically correct, should be, “Not guilty of murder, but guilty of manslaughter (or of murder in the second degree).” In Maryland this exactness is held to be essential. But in most jurisdictions such nicety is not required.*? And where the in- dictment includes murder, and is itself valid, either a convic- tion or acquittal of manslaughter, as has been seen, is an ac- quittal of murder. The same effect attends a conviction or ac- quittal of murder in the second degree, on an indictment for murder at common law.® Either assisting the party to con- ceal the death, or in any way en- abling him to evade the pursuit of justice, will render a party who knows the offense to have been com- mitted an accessory after the fact. Tbid. 1 Wharton, Crim. Pl. & Pr. § 297. 2Supra, § 658. Webster, 5 Cush. 295, 52 Am. Dec. 711, 1850. [N. J.] Hunter v. State, 40 N. J. L. 495, 1878. [N. C.] State v. Baker, 63 N. C, 276, 1869. [Tex.] Dill v. State, 1 Tex. App. 278, 1876. This right is not affected by the division of murder into degrees. See Cox v. People, 19 Hun, 430, 1879, 80 N. Y. 500. 8 Wharton, Crim. Pl. & Pr. §§ 290- 297; People v. Valencia, 43 Cal. 552, 1872; State v. Hamlin, 47 Conn. 95, 36 Am. Rep. 54, 1879; Hawley v. Com. 75 Va. 847, 1880. [Mass.] Com. v. 1State v. Flannigan, 6 Md. 166, 1854; Weighorst v. State, 7 Md. 445, 1854. 2See Wharton, Crim. Pl. & Pr. §§ 465, 757, et seq. “Guitty” instead of “guilty.”—See Pace v. State, — Tex. —, 20 S. W. 762, 1892. 3 See, fully, cases cited in Wharton, Crim. Pl. & Pr. §§ 465, 742. [Ala.] DeArman v. State, 71 Ala. 351, 1882; Sylvester v. State, 72 Ala. 201, 1882. [Mass.] Com. v. Herty, 109 Mass. 348, 1872. [Mich.] People v. Knapp, 26 Mich. 112, 1872. [Minn.] State v. Lessing, 16 Minn. 75, Gil. 64, 1870. Compare: [Ark.] Green v. State, 38 Ark. 304, 1881. [Kan.] State v. McCord, 8 Kan, 232, 12 Am. Rep. 469, 1871. Conviction of lesser, acquittal of higher, degree of crime, sufficiently charged in the indictment; and such 840 § 675. Jury may convict of minor degree. CRIMINAL LAW. [§ 675 On an indict- ment for murder the jury may find a verdict of manslaughter conviction may be pleaded in bar to a trial for the higher degree, even in those cases where the verdict is set aside and a new trial awarded on the motion of accused. [U. S.] Trono v. United States, 199 U. S. 521, 50 L. ed. 292, 26 Sup. Ct. Rep. 121, 1905, affirming 3 Philippine, 213; [Fed.] Re Bennett, 84 Fed. 326, 1897. [Ala.] Bell v. State, 48 Ala. 684, 17 Am. Rep. 40, 1874; Lewis v. State, 51 Ala. 1, 1874; Fields v. State, 52 Ala. 348, 1875; Nutt v. State, 68 Ala. 180, 1875; Smith v. State, 68 Ala. 424, 1880. [Ark.] Johnson v. State, 29 Ark. 31, 21 Am. Rep. 154, 2 Am. Crim. Rep. 430, 1874. [Cal.] People v. Gilmore, 4 Cal. 376, 60 Am. Dec. 620, 1854; People v. Backus, 5 Cal. 275, 1855; People v. Apgar, 35 Cal. 391, 1868; People v. Gordon, 99 Cal. 230, 33 Pac. 901, 1893; People v. Defoor, 100 Cal. 157, 34 Pac. 642, 1893; People v. Muhlner, 115 Cal. 308, 47 Pac. 128, 1896; Peo- ple v. Smith, 134 Cal. 453, 66 Pac. 669, 1901; People v. McFarlane, 138 Cal. 481, 61 L.R.A. 245, 71 Pac. 568, 72 Pac. 48, 1903; Huntington v. Su- perior Ct. 5 Cal. App. 288, 90 Pac. 141, 1907. [Fla.] Johnson vy. State, 27 Fla. 245, 9 So. 208, 1891. [Ga.] Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528, 1853; Jordan v. State, 22 : Ga, 545, 1857. [Ill] Brennan v. Peo- ple, 15 Ill. 511, 1854; Barnett v. Peo- ple, 54 Ill. 325, 1869; Sipple v. Peo- ple, 10 Ill. App. 144, 1881. [Iowa] State v. Tweedy, 11 Iowa, 357, 1860; State v. Clemons, 51 Iowa, 274, 1 N, W. 546, 1879. [La.] State v. Des- mond, 5 La. Ann. 398, 1850; State v. Chandler, 5 La. Ann. 489, 52 Am. Dec. 599, 1850; State v. Byrd, 31 La, Ann. 419, 1879; State v. Denni- son, 31 La. Ann. 848, 1879; State v. Hornsby, 8 Rob. (La.) 583, 41 Am. Dec. 314, 1808. [Mich.] People v. McArron, 121 Mich. 1, 79 N. W. 944, 1899. [Minn.] State v. Lessing, 16 Minn. 75, Gil. 64, 1870. [Miss.] Morris v. State, 8 Smedes & M. 762, 1847; Hurt v. State, 25 Miss. 378, 59 Am. Dee. 225, 1853. [Mo.] State v. Ball, 27 Mo. 324, 1858; State v. Ross, 29 Mo. 32, 1859; State v. Kat- tlemann, 35 Mo. 105, 1864; State v. Smith, 538 Mo. 139, 1873. [N. Y.] People v. Cignarale, 110 N. Y. 30, 17 N. E. 135, 1888; People v. Palmer, 43 Hun, 397, 5 N. Y. Crim. Rep. 101, 1887. [Ohio] Mount v. State, 14 Ohio, 295, 45 Am. Dec. 542, 1846. [Tenn,] State v. Norvell, 2 Yerg. 24, 24 Am. Dec. 458, 1820; Campbell v. State, 9 Yerg. 333, 30 Am. Dec. 417, 1836; Slaughter v. State, 6 Humph, 410, 1846. [Tex.] Cheek v. State, 4 Tex. App. 444, 1878; Jones v. State, 18 Tex. 168, 62 Am. Dec. 550, 1854. [Va.] Ligthgow v. Com. 2 Va. Cas. 297; Livingston v. Com. 14 Gratt. 592, 1857; Stuart v. Com. 28 Gratt. 950, 1877. [Wis.] State v. Martin, 30 Wis. 216, 11 Am. Rep. 567, 1872; State v. Belden, 33. Wis. 121, 14 Am. Rep. 748, 1873. See monographic notes in 58 Am. Dec. 536-549; 62 Am. Dec. 563; 4 Am. St. Rep. 117-120; and 4 A. & E. Ann. Cas. 778-780. —A minority line of cases hold that where statute provides for new trial which places the party in the same position as if no trial had been had, a defendant who has been con- victed of a minor degree of the de- fense charged in the indictment, on new trial granted on his own motion, cannot plead the former verdict in bar of a trial for the highest degree charged in the indictment [Ind.] Ex parte Bradley, 48 Ind. 548, 1874. [Kan,] State v. McCord, 8 Kan. 232, 12 Am. Rep. 469, 1872. [Ky.] Com. v. Arnold, 88 Ky. 1, 4 Am. St. Rep. 114, 7 Am. Crim. Rep. 210, 1884. [Mont.] State v. Thompson, 10 Mont. 549, 27 Pac. 349, 1891. [Neb.] Bo- hanan v. State, 18 Neb. 57, 53 Am. Rep. 791, 24 N. W. 390, 6 Am. Crim. Rep. 487, 1885. [S. C.] State v. Gillis, 73 8S, C. 318, 6 L.R.A.(N.S.) 571, 53 S. E. 487, 6 A. & E. Ann. Cas. 993, 1906. See cases and discussion in notes in 12 Am. Rep. 473-475; and 4 Am. St. Rep. 117-120. § 676] HOMICIDE, 841 or of murder in the second degree,’ but not in some jurisdic- tions, of the misdemeanor of involuntary manslaughter.” And on an indictment for murder in the second degree there can be a conviction of manslaughter.® Joint defendants may be convicted of different degrees.* _ § 676. Verdict must specify degree. In New York, on an indictment for murder at common law, a verdict of guilty, without specifying the degree, is a verdict of guilty of murder in the first degree.’ But as a general rule, established in many states by statute (e.g., Maine, Massachusetts, Pennsylvania, In Missouri a statute has been passed modifying this rule; but this statute is unconstitutional as to all offenses committed before its pass- age. Kring v. Missouri, 107 U. S. 221, 27 L. ed. 506, 2 Sup. Ct. Rep. 443, 1882, cited supra, § 42. 12 Hale, P. C. 246; Fost. C. L. 329. [Ala.] Bell v. State, 48 Ala. 684, 17 Am. Rep. 40, 1871. [Cal.] People v. Gilmore, 4 Cal. 376, 60 Am. Dec. 620, 1854. [Dak.] Territory v. Gay, 2 Dak. 125, 2 N. W. 477, 1879. [Ga.] Jordan v. State, 22 Ga. 545, 1857. [Ill.] Barnett v. People, 54 Ill. 325, 1870. [Iowa] State v. Gor- don, 3 Towa, 410, 1856. [Kan.] State v. McCord, 8 Kan. 232, 12 Am. Rep. 469, 1871. [Me.] State v. Dearborn, 54 Me. 442, 1867. [Md.] State v. Flannigan, 6 Md. 167, 1854; Davis y. State, 39 Md. 355, 1873. [Minn.] State v. Lessing, 16 Minn. 75, Gil. 64, 1870. [Miss.] Hurt v. State, 25 Miss. 378, 59 Am. Dec. 225, 1753. [Mo.] Watson v. State, 5 Mo. 497, 1838; State v. Sloan, 47 Mo. 604, 1871. [N. Y.] Keefe v. People, 40 N. Y. 348, 1869; McNevins v. People, 61 Barb. 307, 1872. [Ohio] Wroe v. State, 20 Ohio St. 460, 1870. [S. C.] State v. Bradley, 34 S. C. 136, 13 S. i, 815, 1891. [Vt.] State v. Burt, 25 Vt. 878, 1853. [Va.] Livingston v. Com. 14 Gratt. 592, 1857. [Wis.] State v. Martin, 30 Wis. 216, 11 Am. Rep. 567, 1872. And see otner cases cited supra, § 674 footnote 3, and Wharton, Crim. Ev. § 145. Manslaughter in the second degree. Brown v. State, 31 Fla. 207, 12 So. 640, 1893. As sustaining murder in the second degree, see [Ala.] Johnson v. State, 17 Ala. 618, 1850. [Ark.] McPher- son v. State, 29 Ark. 225, 1873. [Conn.] State v. Dowd, 19 Conn. 388, 1849. [Mo.] State v. Smith, 53 Mo. 139, 1873. See other cases cited in Wharton, Crim, Ev. § 144. 2Com. v. Gable, 7 Serg. & R. 423, 1821; Walters v. Com. 44 Pa. 135, 1862. Compare: Wharton, Crim. Pl. & Pr. § 261; Bruner v. State, 58 Ind. 159, 1877; and Hunter v. Com. 79 Pa. 503, 21 Am. Rep, 83, 1873. In Kentucky and Louisiana there can be such a conviction. Buckner v. Com. 14 Bush, 601, 1879; State v. Griffin, 34 La, Ann. 37, 1882. Under murder, in Kentucky, de- fendant cannot be convicted of wil- fully striking. Conner v. Com. 13 Bush, 714, 1878. 3 State v. Smith, 53 Mo. 139, 1873. 4 Wharton, Crim. Pl. .& Pr. § 755; Mickey v. Com. 9 Bush, 593, 1873. Supra, § 276. Indictment of several persons; ver- dict was “prisoner guilty.” Branni- gan v. People, 3 Utah, 488, 24 Pac. 767, 1869; State v. Pratt, 88 N. C. 639, 1883; State v. Whitson, 111 N. C. 695, 16 8. E. 332, 1892. See State v. Whitt, 113 N. C. 716, 18 S. E. 715, 1893; Bowman v. State, — Tex. —, 20 S. W. 558, 1892, for acquittal of accomplice. 1Kennedy v. People, 39 N. Y. 245, 1868. 8. P., Territory v. Romine, 2 N. M. 114, 1881; Territory v. Yar- berry, 2 N. M. 391, 1883; People v. Cassiano, 30 Hun, 388, 1883. 842 CRIMINAL LAW. [§ 676 Ohio, and California), in others, as a common-law principle, the degree must be designated.* 2[Ala.] Johnson v. State, 17 Ala. 618, 1850; Hall v. State, 40 Ala. 698, 1867; Robertson v. State, 42 Ala. 509, 1868 (by statute); Levison v. State, 54 Ala. 520, 1875 (a case of poisoning) ; Kendall v. State, 65 Ala. 492, 1880; Storey v. State, 71 Ala. 331, 1882. [Ark.] Lancaster v. State, 71 Ark. 100, 71 S. W. 251, 1902. [Cal.] People v. Campbell, 40 Cal. 129, 1870. [Colo.] Mahany v. Peo- ple, 31 Colo. 365, 73 Pac. 26, 1903. [Conn.] State v. Dowd, 19 Conn. 388, 1849. [Del.] State v. Oliver, 2 Houst. (Del.) 585, 1855. [Fla.] Reyes v. State, 49 Fla. 17, 38 So. 257, 1905. [Iowa] State v. Moran, 7 Towa, 236, 1858; State v. Redman, 17 Iowa, 329, 1864. See however State v. Weese, 53 Iowa, 92, 4 N. W. 827, 1880; State v. Yates, 132 Iowa, 475, 109 N. W. 1005, 1906. [Kan.] State v. Reddick, 7 Kan. 143, 1871; State v. Huber, 8 Kan. 447, 1871; State v. Heth, 60 Kan. 560, 57 Pac. 108, 1899. [Ky.] Brown v. Com. 30 Ky. L. Rep. 505, 99 S. W. 236, 1907. [La.] State v. Flanakin, 128 La. 455, 54 So. 940, 1911. [Me.] State v. Verrill, 54 Me. 408, 1867; State v. Cleveland, 58 Me. 564, 1870. [Md.] Ford v. State, 12 Md. 514, 1858. [Mass.] Com. v. Herty, 109 Mass. 348, 1872. [Mich.] Tully v. People, 6 Mich. 273, 1859; People v Clark, 155 Mich. 647, 119 N. W. 1094, 1909. [Mo.] McGee v. State, 8 Mo. 495, 1844; State v. Upton, 20 Mo. 397, 1855. [Neb.] Russell v. State, 66 Neb. 497, 92 N. W. 751, 1902. [Nev.] State v. Rover, 10 Nev. 388, 21 Am. Rep. 745, 1875. [N. C.] State v. Jefferson, 125 N. C. 712, 34 8. E. 648, 1899. [Ohio] Dick v. State, 3 Ohio St. 89, 1853; Park v. State, 3 Ohio St. 101, 1853 (in Ohio, however, the indictment must be special under statute, as there are no common law crimes). Fouts v. State, 8 Ohio St. 98, 1857; Hagan v. State, 10 Ohio St. 459, 1859; State v. Town, Wright (Ohio) 75. [S. D.] State v. Hubbard, 20 S. D. 148, 104 N. W. 1120, 1905. [Tex.] Isbell v. State, In Missouri it is only neces- 31 Tex. 138, 1868; Dubose v. State, 13 Tex. App. 418, 1883; Thomas v. State, 48 Tex. Crim. Rep. 20, 96 Am. St. Rep. 834, 62 S. W. 919, 1901; Lyles v. State, 48 Tex. Crim. Rep. 119, 86 S. W. 763, 1905. [Wash.j State v. Pepoon, 62 Wash. 635, 114 Pac. 449, 1911. [W. Va.] State v. Hager, 50 W. Va. 370, 40 8. E. 393, 1901; State v. May, 62 W. Va. 129, 57 S. E. 366, 1907. [Wis.] Hogan v. State, 30 Wis. 428, 11 Am. Rep. 575, 1872. As to Georgia, see McGuffie v. State, 17 Ga. 497, 1855; Washington y. State, 36 Ga. 222, 1867. As to Florida, see Nelson v. State, 32 Fla. 244, 13 So. 361, 1893; Grant v. State, 33 Fla. 291, 23 L.R.A. 723, 14 So. 757, 2 Am. Crim. Rep. 746, 1894, In Indiana, where there are no common-law crimes, it is held that the indictment must specially desig- nate the grade under the statute; and hence a general verdict of guilty under an indictment for the first degree convicts of the first degree. Kennedy v. State, 6 Ind. 485, 1855. See Fahnestock v. State, 23 Ind. 231, 1864; Snyder v. State, 59 Ind. 105, 1877. In Massachusetts, in a celebrated case which has been the subject of much discussion, in 1865-66, it was held that a plea of “guilty of mur- der in the first degree,” to the ord?- nary indictment for murder, is good without specifying the facts which make murder in the first degree, and that on this « capital sentence could be imposed. Green v. Com. 12 Al- len, 155, 1866. In Missouri only the minor degrees need be specially found. State v. Brannon, 45 Mo. 329, 1870. But see State v. Jackson, 99 Mo. 60, 12 S. W. 367, 1889. See State v. Meyers, 99 Mo. 107, 12 S. W. 516, 1889. In New Hampshire—In State v. Buzzell, 58 N. H. 257, 42 Am. Rep. 586, 1878, which was an indictment against an alleged accessory before the fact to a murder, the jury re- turned a verdict of guilty, without § 676] HOMICIDE. 843 sary, by statute, to specify the degree when a minor offense is finding whether the defendant was accessory to murder in the first or second degree. The principal had been convicted of murder in the first degree, which appeared by the record. It was ruled that the verdict was equivalent to guilty of being acces- sory to murder in the first degree. In Pennsylvania, on an indictment for murder by poisoning, a verdict of guilty in manner and form as in- dicted is a verdict of guilty or mur- der in the first degree. Com. v. Earle, 1 Whart. 525, 1836. But if the indictment is one which fits equally murder in the second degree, then a general verdict of guilty car- ries only the second degree. John- son v. Com. 24 Pa. 386, 1855. But now the verdict, by statute, must state the degree. Lane v. Com. 59 Pa. 371, 1868. In some states not only the de- gree, but the punishment, must be specified. Infra, § 680. As to verdicts, see further, [Ark.] Ford v. State, 34 Ark. 649, 1879. [Kan.] State v. Potter, 16 Kan. 80, 1876; State v. Bowen, 16 Kan. 475, 1876. [Tenn.] Kannon v. State, 10 Lea, 386, 1882. [Tex.] Wooldridge v, State, 13 Tex. App. 443, 44 Am. Rep. 708, 1883; Walker v. State, 13 Tex. App. 618, 1883; Johnson v. State, 30 Tex. App. 419, 28 Am. St. Rep. 930, 17 S. W. 1070, 1891. Plea of guilty goes to lowest de- gree. Garvey v. People, 6 Colo. 559, 45 Am. Rep. 531, 1883. Plea of guilty to an indictment charging murder, under statute re- quiring jury to be impaneled to de- termine the degree of the crime; a verdict without finding the degree is irregular and insufficient to sustain a judgment. Lancaster v. State, 71 Ark. 100, 71 S. W. 251, 1902. Assault to commit murder being charged, it is not essential that the verdict should state the degree of the murder intended. Edwards v. State, 54 Fla. 40, 45 So. 21, 1907. Verdict of assault and battery with intent to commit manslaughter is a verdict of assault and battery only. Burden v. State, — Miss. —, 45 So. 705, 1908. Degree of murder required by stat- ute to be found by jury does not leave jury free to find accused guilty in the second degree, where the evi- dence furnishes no reasonable ground for such a verdict. State v. Zeller, 77: N. J. L. 619, 73 Atl. 498, 1909. Manslaughter being charged, the statute making no distinction as to degree, verdict of conviction with- out specifying degree is sufficient. State v. Brock, 61 Kan. 857, 58 Pac. 972, 1899. Under Kentucky statute, verdict, “We, the jury, find defendant guilty and fix his punishment at confine- ment for two years in the peniten- tiary,”’—held to indicate sufficiently that accused was convicted of an offense denounced by the statute, and not void. Gillum v. Com. — Ky. —. 121 S. W. 445, 1909. South Dakota—Same rule applies under South Dakota statute in State v. Hayes, 23 S. D. 596, 122 N. W. 652, 1903. Verdict of “guilty in the mercy of the court,” see [Ky.] Hays v. Com. 12 Ky. L. Rep. 611, 14 S. W. 833, 1890. [La.] State v. West, 45 Jia. Ann, 928, 13 So. 173, 1893. [S. C.] State v. Murrell, 33 S. C. 88, 11S. E. 682, 1890. ; —“Guilty of murder as charged in the indictment,’ held to be an insufficient verdict under a statute requiring the jury to find the degree of guilt. [Ky.] Brown v. Com. 30 Ky. L. Rep. 505, 99 S. W. 236, 1907. [Mich.] People v. Clark, 155 Mich. 647, 119 N. W. 1094, 1909. [W. Va.] State v. May, 62 W. Va. 129, 57 S. E. 366, 1907. Information charging murder in the first degree and the evidence be- ing such accused could not be con- victed of any other offense, a verdict reading, “We the jury . . find the defendant guilty of the crime as charged in the information, held to be good as verdict of murder in the first degree.” State v. Pepoon, 62 Wash. 635, 114 Pac. 449, 1911. 844 CRIMINAL LAW. [§ 676 found.® In Georgia, a verdict of “guilty of manslaughter’ is regarded as a verdict of guilty of voluntary manslaughter, the highest grade of that offense by statute.* In some states, where the indictment is specifically for murder in the first degree, then a verdict of guilty “in manner and form as indicted,” is for the first degree.® As we have seen,® a common-law indictment for murder will sustain a verdict of murder in the first degree. § 677. No verdict for assault. At common law,—for the reason that in such case the defendant would be convicted of a misdemeanor on a trial, in which he, from the form of the in- dictment, would be deprived of privileges to which on indict- ments for mere misdemeanors he is entitled, there can be no conviction for an assault under an indictment for murder.’ In what respect this rule has been varied by statute or otherwise has been discussed elsewhere.? § 678. Excusable homicide acquits. Where the jury find the homicide is excusable, the practice in this country is not to find so specially, but to acquit.’ § 679. Accessory to second degree. A person may be legally convicted as accessory before the fact of murder in the second degree.? 3State v. Brannon, 45 Mo. 329, 1870. Verdict for “manslaughter in second degree;” the words “in the second” can be discharged as sur- plusage, see Traube v. State, 56 Miss. 153, 1878. 4Welch v. State, 50 Ga. 128, 15 Am. Rep. 690, 1873. 5 [Ark.] Evans v. State, 58 Ark. 47, 32 S. W. 1026, 1893. [Iowa] State v. Weese, 53 Iowa, 92, 4 N. W. 827, 1880. [Kan.] State v. Jen- nings, 24 Kan. 642, 1881. [Pa.] White v. Com. 6 Binn. 179, 6 Am. Dec. 448, 1813 (but see Lane v. Com. 59 Pa. 371, 1868); Com. v. Earle, 1 Whart. 525, 1821. [Vt.] State v. Hooker, 17 Vt. 658, 1845. 6 Supra, § 519. 1See Wharton, Crim. Pl. & Pr. 9th ed. § 249. 2 Wharton, Crim. Pl. & Pr. § 742; Wharton, Crim, Ev. § 132. Conviction of assault under indict- ment for murder can now be had, both in England and this country, see [Eng.] Reg. v. Birch, 1 Den. C. C. 185, 2 Car. & K. 198, 2 Cox, C. C. 22. [Kan.] State v. O’Kane, 23 Kan. 244, 1880. [Mass.] Com. v. Drum, 19 Pick, 479, 1837. [Miss.] Scott v. State, 60 Miss. 268, 1882. [N. Y.] People v. McDonnell, 92 N. Y. 657, 1883. [Tex.] Peterson v. State, 12 Tex. App. 650, 1882. The distinctions are more fully given in Wharton, Crim. Pl. & Pr. 9th ed. § 249. 1See supra, § 429. 1 Hewitt v. State, 43 Fla. 194, 30 So. 795, 1901; Jones v. State, 13 Tex. 168, 62 Am. Dec. 550, 1854. See State v. Robinson, 12 Wash, 349, 41 Pac. 51, 902, 1895. As to accessory to manslaughter, see supra, § 272. § 680] HOMICIDE, 845 § 680. Designation of punishment. In several states, it is incumbent on the jury to designate the punishment to be in- flicted. In such ease the statute must be followed in the ver- dict. 1Walston v. State, 54 Ga. 242, As to specification of punishment, 1875; Green v. State, 55 Miss. 454, see People v. Welch, 49 Cal. 174, 1877. See Wharton, Crim. Pl. & Pr. 1874; Buster v. State, 42 Tex. 315, §§ 736 et seq. 1875. CHAPTER XV. RAPE. I. DEFINITIONS. § 681. At common law. § 682. Under statute. § 683. —Carnal abuse of children. § 684. Carnal knowledge. § 685. “Against will” and “without consent.” II. DEFENDANT’s Capacity To COMMIT OFFENSE. § 686. Boy under fourteen; English common-law rule, § 687. —American rule; (1) presumption conclusive, § 688. American rule; (2) presumption rebuttable. § 689. Husband; indictment as accessory. § 690. Impotency as a defense. § 691. Aiders and abettors; principals in second degree, III. Upon WHom OFFENSE May BE COMMITTED. § 692. Generally. § 693. Age of victim. § 694. Mental or physical condition of victim. § 695. Chastity of victim. IV. In Wuat CarnaLt KNOWLEDGE CONSISTS. § 696. Penetration must be proved. § 697. —Slight penetration sufficient. § 698. Emission not essential. V. In Wuat WANT or WILL CONSISTS. § 699. “Against her will” equivalent to “without her consent. § 700. Acquiescence through fear not consent. § 701. Acquiescence of infant is not consent. § 702. Acquiescence procured by fraud. § 703. Acquiescence through mental disorder. § 704. Acquiescence, believing person her husband. § 705. Acquiescence obtained by artificial stupefaction, § 706. Acquiescence after act no defense. 7 § 707. How far fraud is equivalent to force. § 708. Prior unchastity of prosecutrix no defense, VI. Srarurory Rare; FEMALE UNDER AGE OF CONSENT, § 709. In general. § 710. Statutory rape. § 711. Elements of the crime. § 712, Age of victim. ” 846 RAPE. 847 § 713. —Belief over age of consent, § 714. —Statements by female as to her age. § 715. Act committed in house of ill fame. § 716. Prior unchastity. § 717. Marriage of female. § 718. Puberty of female. § 719. Evidence. § 720. Indictment. VII. EvipENcE; PARTy AGGRIEVED AS WITNESS. § 721. Burden of proof. § 722. Prosecutrix as witness. § 723. Corroboration. § 724. —May be corroborated by her own statements. § 725. —Such evidence is to be confined to corroboration. § 726. —Complaint of prosecutrix. § 727. —Condition of prosecutrix. § 728. —Nonmarriage of parties. § 729. —Pregnancy of prosecutrix. § 730. —Relations and interests of others, § 731. —Prior chastity of prosecutrix. § 732. —Prior intercourse. § 733. —Resistance and outcry. § 734. Time is not an element. § 735. Character af defendant; specific immoral acts. § 736. Prosecutrix may be impeached by proof of bad character, ete. VIII. PLEADINGs. § 737. Necessary allegations in indictment. § 738. —Age of female need not be averred. § 739. —Sex of victim need not be averred. § 740. —Sex of defendant need not be averred. § 741. —Need not allege nonmarriage of parties. § 742. —Allegation of “assault” not necessary. § 743. —“Ravish” and “forcibly” are essential. § 744. Two defendants may be joined as principals. § 745. Rape may be joined with assault. § 746. May be conviction of minor offenses. IX. ASsavLt wirH INTENT To RaVISH. § 747. Essential elements. § 748. Assault may be sustained when rape is not consummated. § 749. Force to be inferred from circumstances. § 750. Assent bars prosecution if knowingly given by person ca- pable of assent. X. CaRnaL KNOWLEDGE OF CHILDREN. § 751. This is a statutory offense. XI. DEFENSES IN GENERAL, § 752. As to what may be set up in defense. 848 CRIMINAL LAW. [g 683 I. Deriyitions. § 681. At common law. Rape, at common law, is the act of a man’ having carnal knowledge? of a female over the age of ten years,* without her conscious and voluntary permis- 14 Century Dict. & Cyc. 632; 2 Bouvier’s Law Dict. Rawle’s Rev. p. 299; 26 Cyc. 122; 19 Am. & Eng. Enc. Law, 2d ed. 705; 5 Words & Phrases, 4315. The word “man” in statute defin- ing rape, means any person of the male sex capable of committing rape, and is not limited to adult males. LN. H.] State v. Burt, 75 N. H. 64, 71 Atl. 30, 1908. [Tex.] Holliday v. State, 35 Tex. Crim. Rep. 133, 32 S. W. 538, 1895. ([Wis.] State v. Seiler, 106 Wis. 346, 82 N. W. 167, 1900. Evidence that accused is a “man,” held to be sufficient proof that he is an “adult male,” in a prosecution for rape, in Holliday v. State, 35 Tex. Crim. Rep. 133, 32 S. W. 538, 1895. The word “man,” in a statute pro- hibiting fornication, etc., will not be held to mean only a male adult over the age of twenty-one. State v. Seiler, 106 Wis. 346, 82 N. W. 167, 1900. 2See infra, § 684. 3 See 1 Hale, P. C. 628; 4 Bl. Com. 212; 3 Co. Inst. chap. 11, p. 60; 1 Russell, Crimes, 693. [Conn.] State v. Worden, 46 Conn. 349, 33 Am. Rep. 27, 1878 (omitting this point from the reprint). [Del.] State v. Smith, 9 Houst. (Del.) 588, 33 Atl. 441, 1892; State v. Truitt, 5 Penn. (Del.) 466, 62 Atl. 790, 1905. [Ga.] Stephen v. State, 11 Ga. 225, 1852. [Mass.] Com. v. Roosnell, 143 Mass. 32, 8 N. E. 747, 1886. [Mich.] Peo- ple v. McDonald, 9 Mich. 150, 1861; Crosswell v. People, 13 Mich. 427, 87 Am. Dec. 774, 1865. [Ohio] Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355, 1861. [Va.] Givens v. Com. 29 Gratt. 830, 1878. Criticism of this doctrine in 1 Mc- Clain, Crim. Law, §§ 442, 443, on strength of decision in Reg. v. Shott, 3 Car. & K. 206. In Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355, 1861, the court says: “With regard to cases of car- nal connection consummated, or, as the case may be, only attempted, with children under ten years of age and consenting to such connec- tion, the decided weight. of authority in England seems to be that such connection, if consummated, does not constitute a rape; and that where it is not consummated the person can- not be found guilty of an intent to commit a rape, nor even be found guilty of a common assault,” citing: Reg. v. Webb, 2 Car. & K. 933, 1848, Reg. v. Meredith, 8 Car. & P. 589, 1838; Reg. v. Martin, 9 Car. & P. 213, 2 Moody, C. C. 123, 1839; Reg. v. Read, 1 Den. C. C. 377 (and see note a to page 379). In Hays v. People, 1 Hill, 351, de- cided in 1841, the indictment was for an assault with intent to commit a rape upon a child under ten years of age, but consenting thereto, and the case is directly opposed to the cases above cited; Cowen, J., holding that “the assent of such an infant being void as to the principal crime, it is equally so in respect to the incipient advances of the offender.” The learned judge does not further elab- orate the point,.and cites no author- ity for the position, and none is cited by counsel upon either side. Carnal knowledge of a female child under age of ten years, under statute, is held to be rape, on the ground that, from immaturity and want of understanding, the child must be deemed incapable of assent- ing, and the act presumed to be the result of force. Crosswell v. People, 13 Mich, 427, 87 Am. Dec. 774, 1865, citing: Com. v. Sugland, 4 Grav, 7, 1855; People v. McDonald, 9 Mich. 150, 1861. . See also infra, §§ 709-720. § 681] RAPE, 849 sion; * that is, by force,® or forcibly and against her will® or 4See Stephen’s Dig. Crim. Law, chap. xxix. [Eng.] Reg. v. Flattery, L. R. 2 Q. B. Div. 413, 46 L. J. Mag. Cas. N. S. 130, 86 L. T. N. S. 32, 25 Week. Rep. 398, 18 Cox, C. C. 388, 3 Am. Crim. Rep. 454. [Ala.] Hooper v. State, 106 Ala. 41, 17 So. 679, 1895; Harris v. State, — Ala. App. —, 56 So. 55, 1911. [Del.] Sigerella v. State. — Del. —, 74 Atl. 1081, 1910; State v. Honey, — Del. —, 80 Atl. 240, 1911. [Ga.] Whidby v. State, 121 Ga. 588, 49 S. E. 811, 1904. [Ind.] Felton v. State, 189 Ind. 531, 39 N. E, 228, 1894. [Ky.] Payne v. Com. 33 Ky. L. Rep. 229, 110 S. W. 311, 1908. [Mass.] Com. v. Fogerty, 8 Gray, 489, 69 Am. Dec. 264, 1857. [Tex.] Fitzgerald v. State, 20 Tex. App. 281, 1886; Wal- ton v. State, 29 Tex. App. 163, 15 S. W. 646, 1890. 5See footnote 13, this section. As to force as a necessary element, see note in 8 L.R.A. 297. Force and want of consent and ac- complishment of the purpose against the will of the female are essential elements of the crime of rape. Nider v. Com. 140 Ky. 684, 131 S. W. 1024, 1910. The “force,” where such is neces- sary to the accomplishment of the rape, is that by which the woman, not consenting, is subjected to and is put in the power of the assailant, so that he is able to have connection with her notwithstanding her op- position and resistance. Cromeans v. State, 59 Tex. Crim. Rep. 611, 129 S. W. 1129, 1910. In Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355, 1861, the court says the law is very distinct and broad, that the will of the woman must oppose the act, and that any inclination favoring it is fatal to the prosecution, citing: [Eng.] Reg. v. Hallett, 9 Car. & P. 748, 1841. [Ala.] State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79, 1844. [Ark.] Charies v. State, 11 Ark. 389, 1850; Pleasant v. State, 18 Ark. 360, 1853. [N. Y.] Woodin v. People, 1 Park. Crim. Rep. 464, 1854; People v. Mor- ‘vison, 1 Park. Crim. Rep. 625, 1854. Physical force not mnecessary.— The crime of taking or detaining a Crim. L. Vol. I.—54. woman against her will, with intent to have sexual knowledge of her, may be committed without the use of physical force. Copenhaver v. Com. 31 Ky. L. Rep. 1161, 104 S. W. 750, 1907. Force as an element of rape may be exerted by threats of serious bod- ily harm. Vanderford v. State, 126 Ga. 753, 55 S. E. 1025, 1906. —The force may be actual or con- structive.—Where the state relies on penetration of a female over the age of consent, it must show it was by force and against the will and with- out the consent of the female, or by putting her in fear or terror. State v. Colombo, —Del.—. 75 Atl. 616, 1909. Force as an essential element of rape may be constructive or implied. Rahke v. State, 168 Ind. 615, 81 N. E. 584, 1907. —There must be force or putting the female in fear, but when the female does not consent, the Jaw implies force, unless she is under the age of seven years. Sigerella v. State, —Del. —, 74 Atl. 1081, 1910. It is not necessary that the fear be of death- or great bodily harm. State v. Grove, 61 W, Va. 697, 57 S. E. 296, 1907. aa 6[Can.] Reg. v. Bedere, 21 Ont. Rep. 189. [Ala.] Hooper v. State, 106 Ala. 41, 17 So. 679, 1894. [Ark.] Charles v. State, 11 Ark. 389, 1850; Harvey v. State, 53 Ark. 425, 22 Am. St. Rep. 229, 14 S. W. 645, 1890; Maxey v. State, 66 Ark. 523, 52 S. W. 2, 1899. [Del.] State v. Smith, 9 Houst. (Del.) 588, 33 Atl. 441, 1892; State v. Truitt, 5 Penn. (Del.) 466, 62 Atl. 790, 1905; State vy. Colombo, — Del. —, 75 Atl. 616, 1909. [Ga.] Stephen v. State, 11 Ga. 225, 1852; Vanderford v. State. 126 Ga. 753, 55 S. E. 1025, 1906. [IlL.j Rucker v. People, 224 Ill. 131, 79 N. E. 606, 1906. [Ind.] Rahke v. State, 168 Ind. 615, 81 N. E. 584, 1907. [Iowa] State v. Canada, 68 Iowa, 397, 27 N. W. 288, 1886. [Ky.] Weatherford v. Com. 10 Bush, 197, 1873; Fenston v. Com. 82 Ky. 551, 1885; White v. Com. 96 Ky. 180, 28 S. W. 340, 1894; Brown v. Com. 102 Ky. 227, 48 S. W. 214, 1897; 850 CRIMINAL LAW. [§ 681 consent,” or when she did not consent because rendered insen- Lowry v. Com. 23 Ky. L. Rep. 1558, 65 S. W. 434, 1901; Payne v. Com. 33 Ky. L. Rep. 229, 110 S. W. 311, 1908. [Mich.] Crosswell v. People. 13 Mich. 427, 87 Am. Dec. 774, 1864; People v. Crego, 70 Mich. 319, 88 N. W. 281, 1888; People v. Murphy, 145 Mich. 524, 108 N. W. 1009, 1906. [Mo.] State v. Montgomery, 63 Mo. 296, 1876. [Neb.] Richards v. State. 36 Neb. 17, 583 N. W. 1027, 1893. [Nev.] State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754, 1876; State v. Lung, 21 Nev. 212, 37 Am. St. Rep. 505, 28 Pac. 236, 1891. [N. Y.j Hays v. People, 1 Hill, 352, 1851: People v. Maxon, 57 Hun, 367, 10 N. Y. Supp. 593, 11 N. Y. Supp. 943, 1890; People v. Flaherty, 27 App. Div. 536, 50 N. Y. Supp. 574, 1898. [Ohio] Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536, 1846. [Okla.] Sowers v. Territory, 6 Okla. 436, 50 Pac. 257, 1897. [Tex.] Walton v. State, 29 Tex. App. 163, 15 S. W. 646, 1890; Cromeans v. State, 59 Tex. Crim. Rep. 611, 129 8S. W. 1129, 1910. [Wis.] Croghan v. State, 22 Wis. 444, 1868. As to resistance necessary, see Santiago Don Moran v. People, 25 Mich. 356, 12 Am. Rep. 283, 1872; Whittaker v. State, 50 Wis. 518, 36 Am. Rep. 856, 7 N. W. 431, 3 Am. Crim. Rep. 391, 1880. See also notes in 36 Am. Rep. 860, and 8 L.R.A. 297. 7See authorities, footnote 4, this section. At common law, rape is the carnal knowledge of a female forcibly and without her consent. Payne v. Com. 33 Ky. L. Rep. 229, 110 8. W. 311, 1908. “Consent” and “assent” synony- mous. State v. Millain, 3 Nev. 409. “Consent” means acquiescence, as- sent, or permit. 2 Words & Phrases, pp. 1438, 1440. See Bartle v. Bartle, 132 Wis. 398, 112 N. W. 473, 1907. Consent of child under age at which statute confers power to con- sent is immaterial, and cannot be introduced in evidence. [Dak.] Ter- ritory v. Keyes, 5 Dak. 251, 38 N. W. 442, 1888. [Ind.] Stephens v. State, 107 Ind. 190, 8 N. E. 96, 1886. [Iowa] State v. Carnagy, 106 Iowa, 486, 76 N. W. 806, 1898. [Nev.] State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754, 1876. [Wash.] State v. Hunter, 18 Wash. 675, 52 Pac. 249, 1898. Indecent liberties taken with fe- male child under age of consent is an assault, notwithstanding the fact that she consented. See note in 66 Am. St. Rep. 808. Consent is the main issue in prose- cution for rape; instruction to this effect held erroneous, in Pettus v. State, 58 Tex. Crim. Rep. 546, 137 Am. St. Rep. 978, 126 S. W. 868. —Entire want of consent essential. —If the female consents in the least during any part of the act, there is no such opposing of the will as con- stitutes rape. State v. Whimpey, 140 Iowa, 199, 118 N. W. 281, 1908. There is no assault committed where woman over the age of con- sent submits to sexual intercourse. Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217, 1908. Where there is testimony tending to prove that prosecutrix remained friendly with defendant, and made no complaint for some time after the act, it is error to refuse to instruct the jury that such might be con- sidered on the question of consent. Jackson v. State, 92 Ark. 71, 122 S. W. 101, 1909. Should a woman finally consent to the act of sexual intercourse, al- though such consent is reluctantly given, and is obtained through fear, duress, and fraud, or partly through fear and partly by force, the offense is not rape. Whittaker v. State, 50 Wis. 518, 36 Am. Rep. 856, 7 N. W. 431, 3 Am. Crim. Rep. 391, 1880. See also note in 36 Am. Rep. 860- 862. Where, on the trial of an indict- ment for rape, the jury were in- structed that they might convict if they found the defendant procured the prosecutrix to have sexual inter- course with him by fraudulently representing (which she believed) that it was a necessary part of his medical treatment of her, the in- struction was held to be erroneous for the reason that it did not recog- nize force as an essential element of § 681] RAPE, 851 sibe through fright, or ceased resistance under fear of death or great bodily harm, and submitted.® Permission being given to do the act, how far the fact that it was obtained by fraud or through the woman’s ignorance af- fects the case is hereafter discussed.® ‘Forcibly” is frequently introduced as essential to the offense; ’® but it is not (except so far as force is an ordinary incident of the act of coition) requisite in those cases in which acquiescence is caused by fraud or stupefaction." But “forcibly” must be alleged in the in- dictment; though in the cases just referred to the allegation is satisfied by mere proof of penetration.” The intent to use force, however, in case fraud or stupefac- tion should fail, is essential to the offense.” the crime. Santiago Don Moran v. People, 25 Mich. 356, 12 Am. Rep. 283, 1872. See also note in 12 Am. Rep. 290. —Obtained by duress, fear, or fraud is no defense. Rahke v. State, 168 Ind. 615, 81 N. E. 584, 1907. See infra, §§ 700, 702. 8 Com. v. Burke, 105 Mass. 376, 37 Am. Rep. 531, 1870; State v. Sud- duth, 52 S. C. 488, 30 S. E. 408, 1898. If female be rendered insensible through fright, or ceases resistance under fear of death or great bodily harm, the consummated act is rape. Loescher v. State, 142 Wis. 260, 125 N. W. 459, 1910. Proof of acts when prosecutrix was unconscious and unable to consent sustain allegation that they were against her will. State v. Peyton, 93 Ark. 406, 137 Am. St. Rep. 93, 125 S. W. 416, 1910. Rape, on trial of indictment for murder, may be found by jury. Ex parte Dela, 25 Nev. 346, 83 Am. St. Rep. 603, 60 Pac. 217, 15 Am. Crim. Rep. 382, 1900; Bandy v. Hehn, 10 Wyo. 176, 67 Pac. 981, 15 Am. Crim. Rep. 395, 1901. Simple assault, or assault to com- mit rape, may be found by jury on the trial under an indictment char- ging rape, for the reason these minor offenses are necessarily included in the crime of rape. State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754, 1876. See Jones v. State, 118 Ind. 39, 20 N. E. 635, 1888; Ex parte Curnow, 21 Nev. 39, 24 Pac. 483, 1890. See also infra, § 748. As to conviction of lower or dif- ferent degree of crime than that charged in the indictment on which tried, see monographic note in 21 L.R.A.(N.S.) 1-23. 9 Infra, 702. 101 East, P. C. 434; 4 Bl Com. 210; 1 Russell, Crimes, 9th Am. ed. 904; Bradley v. State, 32 Ark. 704, 1878. “Violently’—When used in an in- dictment for rape, the word “violent- ly” is equivalent to the term “forci- bly,” or “by force,” and the term “ravish” imports the employment of force. State v. Rohn, 140 Iowa, 640, 119 N. W. 88, 1909. 11See infra, § 857; Pomeroy v. State, 94 Ind. 96, 48 Am. Rep. 146, 1883. 12 Infra, § 878. See Com. v. Foger- ty, 8 Gray, 489, 69 Am. Dec, 264, 1857; Jones v. State, 10 Tex. App. 552, 1881. 18See authorities footnote 5, this section. [Eng.] Reg. v. Stanton, 1 Car. & K. 415, 1844; Rex v. Lloyd, 7 Car. & P. 318, 18386; Reg. v. Case, 1 Den. C. C. 580, Temple & M. 318, 4 New Sess. Cas. 347, 19 L. J. Mag. Cas. N. S. 174, 14 Jur. 489, 4 Cox, C. C. 220, 1850; Reg. v. Wright, 4 Fost. & F. 967, 1866. [Ala.] State v. Murphy, 6 Ala. 765, 41 Am. Dee. 79, 1844; McNair v. State, 53 Ala. 453, 2 Am. Crim. Rep. 583, 1875. [Ark.] Dawson v. State, 29 Ark. 116, 1874; Bradley v. State, 32 Ark. 704, 1878. [Cal.] People v. Benson, 6 Cal. 221, 65 Am. Dec. 506, 1856. [Ga.] Tay- lor v. State, 50 Ga. 79, 1873. [Ind.] Mills v. State, 52 Ind. 187, 1875; 852 Stephens v. State, 107 Ind. 185, 8 N. E. 94, 1886; White v. State, 136 Ind. 308, 36 N. E. 274, 1894, [Iowa] State v. Hagerman, 47 Iowa, 151, 1877. [Mass.] Com. v. Merrill, 14 Gray, 415, 77 Am. Dec. 536, 1860. [Ohio] Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355, 1861; [Wis.] Hull v. State, 22 Wis. 580, 1868; State v. Erickson, 45 Wis. 86, 3 Am. Crim. Rep. 336, 1878. For other cases, see infra, § 707. Actual force not necessary in those cases where the female is un- conscious, or unable to comprehend fairly the nature and consequences of the sexual act. State v. Lung, 21 Nev. 209, 37 Am. St. Rep. 509, 28 Pac. 235, 1891. —Fear overcoming will, utmost reluctance, and resistance of the fe- male; where that fear is produced by terror of threats, so extreme as to preclude resistance, the connec- tion will constitute rape. Strang v. People, 24 Mich. 1, 1871. See infra, § 700. Intent to use force in case fraud or stupefaction should fail is an es- sential element of the offense. [Eng.] Reg. v. Stanton, 1 Car. & K. 415, 1844; Rex v. Lloyd, 7 Car. & P. 318; Reg. v. Case, 1 Den. C. C. 580, Temple & M. 318, 4 New. Sess. Cas. 347, 19 L. J. Mag. Cas. N. 8. 174, 14 Jur. 489, 4 Cox. C. C. 220; Reg. v. Wright, 4 Fost. & F. 967. [Ala.] MeNair v. State, 53 Ala. 453, 2 Am. Crim. Rep. 583, 1875. [Ark.] Daw- son v. State, 29 Ark. 116, 1874; Bradley v. State, 32 Ark. 704, 1878. [Ga.] Taylor v. State, 50 Ga. 79, 1873. [Iowa] State v. Hagerman, 47 Iowa, 151, 1877. [Mass.] Com. v. Merrill, 14 Gray, 415, 77 Am. Dec. 336, 1860. [Wis.] Hull v. State, 22 Wis. 580, 1868; State v. Erickson, 45 Wis. 86, 3 Am. Crim. Rep. 336, 1878. —A question for jury whether the purpose of the accused was to use force. People v. Bowman, 6 Cal. App. 749, 93 Pac. 198, 1907. —Evidence must show specific in- tent; the possibility of such intent is insufficient. Cotton v. State, 52 Tex. Crim. Rep. 55, 105 S. W. 185, 1907. And the same is the rule in charge of assault with intent to rape. Gib- CRIMINAL LAW, [§ 681 son v. Com. 31 Ky. L. Rep. 945, 104 S. W. 351, 1907. —May be shown by circumstances, without specific evidence of declara- tions of the purpose to have sexual intercourse. Bowman v. Com. 31 Ky. L. Rep. 828, 104 S. W. 263, 1907. Fact that accused desisted may be considered by the jury, but cre- ates no legal presumption that ac- cused did not intend to have inter- course, in prosecution for rape of fe- male under the age of eighteen. State v. Allison, 24 S. D. 622, 124 N. W. 747, 1910. —May be shown from declarations of accused or inferred from his acts and conduct at the time. Newman v. People, 223 Ill. 324, 79 N. E. 80, 1906. Evidence of previous statements of defendant that he intended and would like to ruin the girl, and of a visit by him to her, at which time he said he wanted “to scuffle with her,” is admissible where defendant denied he ever had, or tried to have, intercourse with her, or made any improper proposals to her. Sexton v. State, 91 Ark. 589, 121 S. W. 1075, 1909. Statements made by defendant prior to the commission of the of- fense, showing his intention to com- mit it, are admissible. State v. Winnett, 48 Wash. 93, 92 Pac. 904, 1907. No consent and no resistance is necessary where victim is non com- pos mentis, drugged, or intoxicated, or where the victim is under ten years of age, or incapable of consent; because in such cases the wrongful act itself constitutes the requisite force which is an element in the crime. Lewis v. State, 30 Ala. 54, 68 Am. Dec. 113, 1857; Pomeroy v. State, 94 Ind. 96, 48 Am. Rep. 146, 1883. See infra, § 694. Resistance requisite to extent of ability of victim. Some of the cases hold there must be the utmost reluctance and utmost resistance. Mathews v. State, 19 Neb. 330, 27 N. W. 234, 1886. The resistance required is in re- lation to the circumstances attending the transaction. Where victim is § 682] RAPE. 853 § 682. Under statute. The crime of rape is a common- law offense,’ but there are statutes in all states punishing the crime.” Some of these statutes provide for the punishment of this offense without defining the crime; * others define the crime substantially as it is defined at common law;* while in others the definition differs from that at the common law, and some of the statutes specify other and additional circumstances un- der which the prohibited act constitutes rape.® By many of these statutes the age of consent in the female is raised.® overpowered by force, and unable, for want of strength, to resist ac- tively any longer, or if such re- sistance be absolutely useless, the crime may have been committed. Austine v. People, 110 Ill. 248, 1884; People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349, 1874; People v. Cle- mons, 37 Hun, 583, 1885. ~—Evidence of woman’s bodily weakness and of the accused’s bodily strength may be given in evidence by the prosecution. State v. Knapp, 45 N. H. 148, 1863. 11 East, P. C. chap. 10, § 1; 1 Hale, P. C. 626; 1 Russell, Crimes, 7th Eng. & 1st Can. ed. p. 931. See O’Connell v. State, 6 Minn. 279, Gil. 190, 1878; Mobley v. State, 46 Miss. 501, 1872. 2See infra, §§ 709-720; 42 Cen- tury, Dig. col. 4, § 2; 17 Decen. Dig. p. 800, § 2; Am. Dig. title “Rape” § 2; 23 Cyc. 1416; 7 Words & Phrases, 5919. 3In absence of statutory definition, the common-law definition applies. Payne v. Com. 33 Ky. L. Rep. 229, 110 S. W. 311, 1908. Reason for this rule is the fact that the common law of England as it existed at the time when this country was separated from Eng- land, on July 4, 1776, is a part of the law of the land, and particular- ly in all those states which were at the time colonies of England, as well as in those states subsequently carved out of the territory neld or claimed by England at the time. The rule does not apply in those states in which the common law is not a part of the organic law of the state. See 12 Cyc. 140. 4See [Ark.] Harvey v. State, 53 Ark. 425, 22 Am. St. Rep. 229, 14 S. W. 645, 1890; Beard v. State, 79 Ark, 293, 95 S. W. 995, 97 S. W. 667, 9 A. & E. Ann. Cas. 409, 1906. [Cal.] People v. Ah Yek, 29 Cal. 575, 1866. [Colo.] Gibbs v. People, 36 Colo. 452, 85 Pac. 425, 1906. [Fla.] Barker v. State, 40 Fla. 178, 24 So. 69, 1898. [Ga.] Vanderford v. State, 126 Ga. 753, 55 S. E. 1025, 1906. [IIL] Addison v. People, 193 Ill. 405, 62 N. E. 235, 1901. [Ind.] Pomeroy v. State, 94 Ind. 96, 48 Am. Rep. 146, 1883; Hanes v. State, 155 Ind. 112, 57 N. E. 704, 1900. [Iowa] State v. Canada, 68 Iowa, 397, 27 N. W. 288, 1886. [Mass.] Com. v. Sugland, 4 Gray, 7, 1855. [Mich.] Crosswell v. People, 13 Mich. 427, 87 Am. Dec. 774, 1865; Santiago Don Moran v. People, 25 Mich. 356, 12 Am. Rep. 288, 1872. [Nev.] State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754, 1876. [N. C.] State v. Johnston, 76 N. C. 209, 1877. [Okla.] Vickers v. United States, 1 Okla. Crim. Rep. 452, 98 Pac. 467, 1908. [Tenn.] Wyatt v. State, 2 Swan, 394, 1852. [Wis.] State v. Mueller, 85 Wis. 203, 55 N. W. 165, 1893. [Wyo.] Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217, 1907. 5Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, 1870. See Com. v. Sugland, 4 Gray, 7, 1855; Com. v. Bailey, 18 Allen, 541, 1866. 6[Ala.] Fourteen years, Castle- berry v. State, 185 Ala. 24, 33 So. 431, 1903. [Ark.] Sixteen years, Plunkett v. State, 72 Ark. 409, 82 S. W. 845, 1904. [Del.] Eighteen years, Sigerella v. State, — Del. —, 74 Atl. 1081, 1910. See State v. 854 § 683. —Carnal abuse of children. CRIMINAL LAW. [§ 683 By statute the car- nal abuse or knowledge’ of a female child under a specified age, Colombo, — Del. —, 75 Atl. 616, 1909. [Colo.] Eighteen years, Gibbs v. People, 36 Colo. 452, 85 Pac. 425, 1906. [Fla.] Highteen years, Wilson v. State, 50 Fla. 164, 39 So. 471, 1905. [Ill.] Fourteen years, Addi- son v. People, 193 Ill. 405, 62 N. E. 235, 1901; Johnson v. People, 202 ill. 53, 66 N. E. 877, 1903. [Ind.] Fourteen years, Hanes v. State, 155 Ind. 112, 57 N. E. 704, 1900. [Kan.] Kighteen years, State v. Crawford, 39 Kan. 257, 18 Pac. 184, 1888; State v. Tinkler, 72 Kan. 262, 83 Pac. 830, 1905. [Ky.] Twelve years, White v. Com. 96 Ky. 180, 28 S. W. 340, 1894; Payne v. Com. 33 Ky. L. Rep. 229, 110 S. W. 311, 1908. [La.] Twelve years, State v. Meho- jovich, 118 La. 1013, 43 So. 660, 1907. {Mich.] Sixteen years, People v. Chamblin, 149 Mich. 653, 113 N. W. 27,1907. [Minn.] Sixteen years, State v. Rollins, 80 Minn. 216, 83 N. W. 141, 1900. [Mo.] Eighteen years, State v. Knock, 142 Mo. 515, 44S. W. 244, 1897; State v. Hunter, 171 Mo. 435, 71 S. W. 675, 1903. [Mont.] Sixteen years, State v. Ma- honey, 24 Mont. 281, 61 Pac. 647, 1900. [Neb.] Kighteen years (chaste female; otherwise fifteen years), Hubert v. State, 74 Neb. 220, 104 N. W. 276, 106 N. W. 774, 1906. See Baxter v. State, 80 Neb. 840, 115 N. W. 584, 1908. [Or.] Sixteen years, State v. Knighten, 39 Or. 63, 87 Am. St. Rep. 647, 64 Pac. 866, 1901. [Pa.] Sixteen years, Com. v. Walker, 34 Pa. Super. Ct. 14, 1907 {S. C.] Fourteen years, State v. Haddon, 49 S. C. 308, 27 8S. E. 194, 1897. [Tenn.] Eighteen years (chaste female; otherwise twelve years), Jamison v. State, 117 Tenn. 58, 94 S. W. 675, 1906. [Tex.] Fifteen years, Robertson v. State, 51 Tex. Crim. Rep. 493, 102 S. W. 1130, 1907. [Va.] Twelve years, Givens v. Com. 29 Gratt. 830, 1878. [Wash.] Kighteen years, State v. Phelps, 22 Wash. 181, 60 Pac. 134, 1900; State vy. Adams, 41 Wash, 552, 88 Pac. 1108, 1906. [Wis.] Fourteen years, Smits v. State, 145 Wis. 601, 130 N. W. 525, 1911; formerly ‘twelve years, State v. Mueller, 85 Wis. 203, 55 N. W. 165, 1893. [Wyo.] High- teen years, Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217, 1907. On a charge of the crime against a female under the age of consent, the court should limit the inquiry of the jury to the time at which she arrived at the age of consent; and an instruction to find the defendant guilty if he had intercourse with the prosecutrix at any time prior to the finding of the indictment is errone- ous, when the accused had been mar- ried to the prosecutrix for more than three months prior to the finding of such indictment. State v. Evans, 138 Mo. 116, 60 Am. St. Rep. 549, 39 S. W. 462, 1897. 1As to abuse of female child, see [Ala.] Castleberry v. State, 135 Ala. 24, 33 So. 431, 19038. [Ark.] Plun- kett v. State, 72 Ark. 409, 82 S. W. 845, 1904. [Kan.] State v. Tink- ler, 72 Kan. 262, 83 Pac. 830, 1905. [Minn.] State v. Rollins, 80 Minn. 216, 83 N. W. 141, 1900. As to “carnal knowledge,” general- ly, see infra, § 684, “Abuse,” under the statute punish- ing carnal knowledge, applies only to injuries to the genital organs in an unsuccessful attempt at rape, and does not include mere forcible or wrongful ill usage. Dawkins v. State, 58 Ala. 376, 29 Am. Rep. 754, 1877. Other punishment provided.—The fact that a person charged with the commission of the offense may, unde) the statute, be charged with forn:- cation, or with seduction, according to the facts of the case, does not furnish an objection to the validity of the statute, because the purpose is to insure adequate punishment for the offense, and avoid the danger of persons guilty of the crime going entirely unpunished by reason of the severity of the penalty. Loose v. State, 120 Wis. 115, 97 N. W. 526, 1903. § 684] RAPE. 855 with her consent, is made a statutory crime,? which constitutes a new and distinct offense from the ordinary crime of rape.® Some of the cases—they are a minority, and not supported by the better reason—hold that there is but one crime denounced.‘ In those jurisdictions where the better rule prevails and the statute is held to create a distinct crime, on an indictment for rape the accused cannot be convicted of the statutory offense, and vice versa.® § 684. Carnal knowledge. Carnal knowledge, or carnal connection, at common law and under statutes defining and punishing the crime of rape, as well as in common speech, means simply sexual bodily connection or intercourse between a male 2Mobley v. State, 46 Miss. 501, 1872. As to carnal knowledge of child, see infra, §§ 684, 695. 8 [Ala.] Vasser v. State, 55 Ala. 264, 1876. [Iowa] State v. Gaston, 96 Iowa, 505, 65 N. W. 415, 1895. {Neb.] Edwards v. State, 69 Neb. 386, 95 N. W. 1038, 5 A. & E. Ann. ‘Cas. 312, 1903; Hubert v. State, 74 Neb. 220, 104 N. W. 276, 1905, 106 N. W. 774, 1906. [Nev.] State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754, 1876. [Tenn.] State v. Cherry, 1 Swan, 160, 1851; Rhodes v. State, 1 Coldw. 351, 1860. [Tex.] Hardin v. State, 39 Tex. Crim. Rep. 426, 46 S. W. 803, 1898. 4[Del.] State v. Smith, 9 Houst. (Del.) 588, 33 Atl, 441, 1892. [Ga.] Stephen v. State, 11 Ga. 225, 1852; MecMath v. State, 55 Ga. 303, 1875. [Ky.] Fenston v. Com. 82 Ky. 549, 1885; Young v. Com. 96 Ky. 573, 29 S. W. 489, 1895. [La.] State v. Jackson, 46 La. Ann. 547, 15 So. 402, 1895. [Me.] State v. Black, 63 Me. 210, 1874. [Mass.] Com. v. Sug- land, 4 Gray, 7, 1855. [Mich.] Cross- well v. People, 13 Mich. 427, 87 Am. Dec. 774, 1865. [Neb.] Hubert v. State, 74 Neb. 220, 104 N. W. 276, 106 N. W. 774, 1906. 5 [Ala.] Vasser v. State, 55 Ala. 264, 1876. [Ark.] Warner v. State, 64 Ark. 660, 17 S. W. 6, 1891. {Conn.}] State v. Gaul, 50 Conn. 578, 1883. [Ind.] Greer v. State, 50 Ind. 267, 19 Am. Rep. 709, 1 Am. Crim. Rep. 643, 1875. [Me.] State v. Noble, 15 Me. 476, 1839; State v. Jackson, 30 Me. 29, 1849. [Miss.] Dick v. State, 30 Miss. 631, 1856; Bonner v. State, 65 Miss. 298, 3 So. 663, 1887; Alfred v. State, — Miss. —, 32 So. 54, 1902. [N. C.] State v. Johnson, 100 N. C. 494, 6 S. E. 61, 1888. [Or.] State v. Lee, 33 Or. 506, 56 Pac. 415, 1899. [S. C.] State v. Haddon, 49 S. C. 308, 27 S. E. 194, 1896. [Tenn.] Turley v. State, 3 Humph. 323, 1842. [Tex.] Jenkins v. State, 34 Tex. Crim. Rep. 201, 29 S. W. 1078, 1895; Morgan v. State, — Tex. Crim. Rep. —, 50 S. W. 718, 1899. [Vt.] State v. Wheat, 63 Vt. 6738, 22 Atl. 720, 1890. [Wash.] Whitcher v. State, 2 Wash. 286, 26 Pac. 268, 1891. In the case of Greer v. State, 50 Ind. 267, 19 Am. Rep. 709, 1 Am. Crim. Rep. 643, 1875, the court says: “The prosecutor cannot charge a rape of the one class, and sustain the charge by proof of a rape of the other class. Nor can he charge an assault and battery with intent to commit a rape of the one class, and sustain the charge by evidence of an intent to commit a rape of the other class. The variance between the allegations and the proof is fatal,” citing: [Me.] State v. Noble, 15 Me. 476, 1839; State v. Jackson, 30 Me. 29, 1849. [Miss.] Dick v. State, 30 Miss. 631, 1856. [Ohio] Hooker v. State, 4 Ohio, 348, 1831. [Tenn.] Turley v. State, 3 Humph. 328, 1842. CRIMINAL LAW. [§ 684 856 and a female;* that is to say, the actual contact of the sexual organs, and the penetration of the sexual organ of the male through the sexual organ of the female into her body.” Whether emission is necessary to the consummation of the crime, under an indictment charging rape, is elsewhere dis- cussed.® § 685. “Against will” and “without consent.” In a stat- ute defining and punishing rape, or in an indictment or infor- mation charging the accused with the commission of the crime of rape, the phrases “against her will” and “without her con- sent” are synonymous phrases, and must be construed to mean the same thing;? yet in some jurisdictions it has been sought to set up a distinction? later section.® 1 [Iowa] State v. Whalen, 98 Iowa, 662, 68 N. W. 554, 1896. [Mass.] Com. v. Squires, 97 Mass. 59, 1867. [Chio] Noble v. State, 22 Ohio St. 541, 1872. [Tex.] Burk v. State, 8 Tex. App. 336, 1880. Words “carnal knowledge” mean sexual bodily connection between man and woman, and should be given that meaning when used in an in- dictment. State v. La Mont, 23 S. D. 174, 120 N. W. 1104, 1909; Burk y. State, 8 Tex. App. 336, 1880. —As used in statute defining rape, mean sexual intercourse. Burk vy. State, 8 Tex. App. 336, 1880. Imply sexual intercourse, and in- clude the words “seduce and debauch” in an indictment charging the de- fendant with seduction. State v. Whalen, 98 Iowa, 662, 68 N. W. 554. See State v. Curran, 51 Iowa, 112, 49 N. W. 1006, 3 Am. Crim. Rep. 405, 1879. 2State v. Frazier, 54 Kan. 719, 39 Pac. 819, 1895. 8 See infra, § 698. 1[Ark.] State v. Peyton, 93 Ark. 406, 137 Am. St. Rep. 98, 125 8. W, 416, 1910. [Conn,] State v. Gaul, 50 Conn. 578, 1883. [Mass.] Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, 1870. [Wis.] Whittaker v. State, 50 Wis. 521, 36 Am. Rep. 856, 7 N. W. 431, 3 Am. Crim. Rep. 391, 1880. See infra, § 556. This matter is fully discussed in a “Against her will” means the same as “without her consent.” State v. Peyton, 93 Ark. 406, 137 Am. St. ‘Rep. 98, 125 S. W. 416, 1910. Allegation that accused did “un- lawfully” and “forcibly ravish and carnally know” a certain female suf-. ficiently alleges that the act was “against the will” and without the consent of the female. State v. Pey- ton, 93 Ark. 406, 187 Am. St. Rep. 93, 125 S. W. 416, 1910. 2Reg. v. Fletcher, 8 Cox, C. C. 131, Bell, C. C. 63, 28 L. J. Mag. Cas. N. S. 85, 5 Jur. N. 8. 179, 7 Week. Rep. 204. In Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, 1870, the court says that in Reg. v. Fletcher, L. R. 1 C. C. 39, 10 Cox, C. C. 248, 35 L. J. Mag. Cas. N. 8. 172, 12 Jur. N. S. 505, 14 L. T. N. S. 573, 14 Week. Rep. 774, Lord Campbell, C. J., ignor- ing the old authorities and the re- pealing statute of 9 Geo. IV., un- necessarily and erroneously assumed that the statute of Westm. IT. was still in force; that it defined the crime of rape; and that there was a difference between the expressions “against her will” and “without her consent,” in the definitions of this crime; that none of the other cases in England have been put upon that ground; and that their judicial value is not impaired by his inaccuracies. 8 See infra, § 696. § 686] RAPE. 857 II. Derenpant’s Capacity to Commit OFFENsE. § 686. Boy under fourteen; English common-law rule. By the English common law the conclusive presumption was that a boy under the age of fourteen years had not the physical capacity to commit the offense of rape, and evidence to show capacity is inadmissible.’ Whether boy under fourteen is indictable at common law for an assault with intent to ravish has been disputed. The affirma- tive has been maintained in Massachusetts,* and in other states it has been held that while there is a presumption of incapacity, this presumption may be overcome by counter proof. But the prevalent opinion is that in such cases the presumption of in- capacity is irrebuttable.* Whatever may be the limits of the defendant’s capacity as a direct agent, it is clear that when concerned with others he may, when otherwise penally responsible, be convicted as principal 11 Hale, P. C. 269, 631; Lewis, Crim. Law, 558; Rex v. Eldershaw, 3 Car. & P. 396, 1828; Rex v. Groom- bridge, 7 Car. & P. 583, 1836; Reg. v. Phillips, 8 Car. & P. 736; Reg. y. Jordan, 9 Car. & P. 118,°1839; Reg. v. Brimilow, 9 Car. & P. 366, 2 Moody, C. C. 122, 1840; Reg. v. Williams [1893] 1 Q. B. 320, 62 L. J. Mag. Cas. N. 8. 69, 5 Reports, 186, 41 Week. Rep. 332; Reg. v. Waite [1892] 2 Q. B. 600, 61 L. J. Mag. Cas. N. 8. 187, 67 L. T. N.S. 300, 41 Week. Rep. 80, 17 Cox, C. C. 554, As to capacity of boy under the age of fourteen to commit crime of Yape, see monographic notes in 11 A. & HE. Ann. Cas. 1063, and 36 L.R.A. 203. 2Com. v. Green, 2 Pick. 380, 1824. It is also the rule of the common law, that a boy under the age of fourteen years cannot, in point of law, be guilty of an assault with intent to commit a rape; and if he were under that age at the time of the alleged offense, evidence is inad- missible to show that in point of fact he could commit the offense. [Eng.}] Rex v. Eldershaw, 3 Car. & P. 396, 1828; Reg. v. Phillips, 8 Car. & P. 736, [Fla.] McKinny v. State, 29 Fla. 565, 30 Am. St. Rep. 140, 10 So. 732, 1892. [N. Y.] Peo- ple v. Randolph, 2 Park. Crim. Rep. 174, 213, 1855. See also 3 Lawson, Crim. Defenses, 145. 3See infra, § 688. 4 [Eng.] Rex v. Eldershaw, 3 Car. & P. 396, 1828; Rex v. Groombridge, 7 Car. & P. 582, 1836; Reg. v. Phil- lips, 8 Car. & P. 736, 1839; Reg. v. Jordan, 9 Car. & P. 118, 1839; Reg. v. Brimilow, 9 Car. & P. 366, 2 Moody, C. C. 122, 1840. [Del.] State v, Handy, 4 Harr. (Del.) 566, 1845. [N. C.] State v. Pugh, 52 N. C. (7 Jones, L.) 61, 1869. See also supra, § 87. Whether absolute legal incapacity bars indictment for an attempt is considered elsewhere. Supra, §§ 222, 223. Defendant’s good character may be considered by the jury. See State v. Witten, 100 Mo. 525, 13 S. W. 871, 1890; Lincecum v. State, 29 Tex. App. 328, 25 Am. St. Rep. 727, 15 S. W. 818, 1890. CRIMINAL LAW. [§ 686 858 in the second degree; ® or of a simple assault, even on evidence of rape.® § 687. —American rule; (1) presumption conclusive. In this country, some of the cases follow the early common- law rule, and hold the presumption of incapacity to be conclu- sive, and not subject to be overcome by proof of capacity.* § 688. —American rule; (2) presumption rebuttable. In the majority of the American jurisdictions it is held by the courts, with practical unanimity, that this want of capacity is not conclusive. This is placed on the ground that the age of capacity arrives earlier in this country than it does in England. In those jurisdictions where this latter rule prevails, the com- mon-law presumption of incapacity may be overcome by proof that the accused has reached the age of puberty, and is therefore capable of committing the crime." 51 Russell, Crimes, 9th Am. ed. 921 et seq. 6 Rex v. Eldershaw, 3 Car. & P. 396, 1828; Reg. v. Phillips, 8 Car. & P. 736, 1839; State v. Pugh, 52 N. C. (7 Jones, L.) 61, 1869; Law v. Com. 75 Va. 885, 40 Am. Rep. 750, 1881. 1[Del.] State v. Handy, 4 Harr. (Del.) 566, 1847. [Fla.] Williams v. State, 20 Fla. 777, 5 Am. Crim. Rep. 612, 1884; McKinny v. State, 29 Fla. 565, 30 Am. St. Rep. 140, 10 So. 732, 1892; Chism v. State, 42 Fla. 232, 28 So. 399, 1900. [Ga.] Stephen v. State, 11 Ga. 225, 1852; Gordon v. State, 93 Ga. 531, 44 Am. St. Rep. 189, 21S. E. 54, 9 Am. Crim. 444, 1893. [N. Y.] People v. Ran- dolph, 2 Park. Crim. Rep. 174, 1855; People v. Croucher, 2 Wheeler, C. C. 42, 1800. [N. C.] State v. Pugh, 52 N. C. (7 Jones, L.) 61, 1859; State v. Sam, 60 N. C. (1 Winst. L.) 300, 1864. [Ohio] Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355, 1861. [Pa.] Com. v. Hummel, 21 Pa. Co. Ct. 445, 1898. [Va.] Foster v. Com. 96 Va. 306, 42 L.R.A. 589, 70 Am. St. Rep. 846, 31 S. E. 503, 1898. See also supra, § 87; and notes in 70 Am. Dec. 498; 30 Am. St. Rep. 144; 34 Am. St. Rep. 323; 36 L.R.A. 205; and 11 A. & E. Ann. Cas. 1063. Ground of rule of impotency.—A boy under the age of fourteen, by the common-law rule, was presumed to be incapable of committing the crime of rape. This presumption, it seems, was not so much on the ground of incapacity of mind or will, as of physical impotency, and was irrebuttable. Williams v. State, 20 Fla. 777, 5 Am. Crim. Rep. 612, 1884; McKinny v. State, 29 Fla. 565, 30 Am. St. Rep. 140, 10 So. 732, 1892; Foster v. Com. 96 Va. 306, 42 L.R.A. 589, 70 Am. St. Rep. 846, 31 8. E. 508, 1898. Statute dispensing with proof of emissions.—The section in the Code of Criminal Procedure (74 O. L. 349, § 31), dispensing with proof of emis- sion, has no relation to capacity; and hence it does not so enlarge the meaning of the statutory provision in relation to rape (74 0. L. 245, § 9) as to include persons not there- tofore amenable to that provision. If it appear, on the trial of one charged with rape, that he is a boy under fourteen years of age, the burden is on the state to prove capacity to commit the crime. Hiltabiddle v. State, 35 Ohio St. 52, 35 Am. Rep. 592, 1878. See criticism in 10 Weekly Bul- letin, 222. 1See, among other cases, [Ala.] § 689] § 689. Husband; indictable as accessory. RAPE. 859 It is well set- tled that at common law, whatever may be the rule under a particular statute, that although a husband cannot be guilty of the crime of rape upon his wife,’ he may be tried as the acces- Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494, 1858. [Del.] State v. Handy, 4 Harr. (Del.) 566, 1848. [Ga.] Gordon v. State, 93 Ga. 531, 9 Am. Crim. Rep. 444, 44 Am. St. Rep. 189, 21 S. E. 54, 1893. [Ky.] Heilman v. Com. 84 Ky. 457, 4 Am. St. Rep. 207, 1 S. W. 731, 1886. [La.] State v. Jones, 39 La. Ann, 935, 3 So. 57, 1887. [Mass.] Com. v. Green, 2 Pick. 380, 18238. [N. Y.] People v. Randolph, 2 Park. Crim. Rep. 174, 1855. [N. C.] State v. Yeargan, 117 N. C. 706, 36 L.R.A. 196, 23 S. E. 153, 1895. [N. D.] State v. Fisk, 15 N. D. 589, 108 N. W. 485, 11 A. & E. Ann. Cas. 1061, 1906. [Ohio] Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536, 1846; O’Meara v. State, 17 Ohio St. 515, 1867; Moore v. State, 17 Ohio St. 521, 1867; Hiltabiddle v. State, 35 Ohio St. 52, 35 Am. Rep. 592, 1878. [S. C.] State v. Coleman, 54 S. C. 162, 31 S. E. 866, 1898. [Tenn.] Wagoner v. State, 5 Lea, 352, 40 Am. Rep. 36, 1882. [Va.] Foster v. Com. 96 Va. 306, 42 L.R.A. 589, 70 Am. St. Rep. 846, 31 S. E. 503, 1898. See notes in 36 L.R.A. 203, and 11 A. & E. Ann. Cas. 168. In McKinny v. State, 29 Fila. 565, 30 Am. St. Rep. 140, 10 So. 732, 1892, the court says: “It was decided in Com. v. Green, 2 Pick. 380, that a boy under the age of fourteen years may be indicted for an assault with intent to commit rape; but this seems to be the only ‘departure outright from the com- mon-law rule.” In Foster v. Com. 96 Va. 306, 42 L.R.A. 589, 70 Am. St. Rep. 846, 31 8. E. 503, 1898, the court says: “In Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536, 1846, it was held that an infant under the age of fourteen years is presumed to be incapable of committing the crime of rape, or of an attempt to commit it; but that the presumption may be rebutted by proof that he has ar- rived at puberty, and is capable ot consummating the crime. This de- cision was made in 1846. The ques- tion was again before the court, in 1878, in the case of Hiltabiddle v. State, 85 Ohio St. 52, 35 Am. Rep. 592, and the rule in its modified form, as laid down in Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536, since it had stood as the law of that state for many years, was followed, but it is strongly implied in the opinion that except for the previous decision the court would have adhered to the rule of the com- mon law.” 1See [Ark.] Plunkett v. State, 72 Ark. 409, 82 8. W. 845, 1904; Gar- ner v. State, 73 Ark. 487, 84 S. W. 623, 1905. [Cal.] People v. Estrada, 53 Cal. 600, 1879. [Kan.] State v. Boyland, 24 Kan. 186, 1880. [La.] State v. Haines, 51 La. Ann. 7381, 44 L.R.A. 837, 25 So. 372, 1899. [Mass.] Com. v. Fogerty, 8 Gray, 489, 69 Am. Dec. 264, 1857; Com. v. Murphy, 2 Allen, 163, 1861. [Mo.] State v. Evans, 138 Mo. 116, 60 Am. St. Rep. 549, 39 S. W. 462, 1897. [N. C.] State v. Dowell, 106 N. C. 722, 8 L.R.A. 297, 19 Am. St. Rep. 568, 11 8. E. 525, 8 Am. Crim. Rep. 681, 1890. [Tex.] Gonzales v. State, — Tex. Crim. Rep. —, 62 S. W. 1060, 1901; Frazier v. State, 48 Tex. Crim. Rep. 142, 122 Am. St. Rep. 738, 86 S. W. 754, 13 A. & E. Ann. Cas. 497, 1905. [Utah] State v. Williamson, 22 Utah, 248, 83 Am. St. Rep. 780, 62 Pac, 1022, 1900. See on this point remarks of Sir J. Hannen, in S. v. A. 39 L. T. N.S. 128, 47 L. J. Prob. N. S. 75, L. R, 3 Prob. Div. 72, 1878. See also note in 13 A. & E. Ann. Cas. 498. 860 CRIMINAL LAW. [§ 689 sory of another therein, and the wife is a competent witness against both to prove the violence.® § 690. Impotency as a defense. Impotency is a sufficient defense to an indictment for the consummated offense, though not for an assault with intent.? The subject: of impotency is fully considered in another work.? § 691. Aiders and abettors; principals in second degree. All concerned as assistants may be convicted as principals in the second degree; though only the actual perpetrator can be charged as principal in the first degree.” 21 Hale, P. C. 629. [Eng.] Aud- ley’s Case, 3 How. St. Tr. 401; Rex v. Azire, 1 Strange, 633, 1700. [Mass.] Com. v. Fogerty, 8 Gray, 489, 69 Am. Dec. 264, 1857; Com. v. Murphy, 2 Allen, 163, 1861. [Mich.] People v. Chapman, 62 Mich. 280, 4 Am. St. Rep. 857, 28 N. W. 896, 7 Am. Crim. Rep. 568, 1866. [N. C.] State v. Dowell, 106 N. C. 722, 8 L.R.A. 297, 19 Am. St. Rep. 568, 11 S. E. 525, 8 Am. Crim, Rep. 681, 1890. [Ohio] Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355, 1861. See note in 13 A. & E. Ann. Cas. 498, and 80 Am, Dec. 3638. In State v. Dowell, 106 N. C. 722, 8 L.R.A. 297, 19 Am. St. Rep. 568, 11 S. E. 525, 8 Am. Crim. Rep. 681, 1890, Shepherd, J., says: “It was at one time held in our state that the relation of husband and wife gave the former immunity to the extent that the courts’ would not go behind the domestic curtain, and scrutinize too nicely every family disturbance, even though amounting to an assault. State v. Rhodes, 61 N. C. (Phill. L.) 453, 98 Am. Dec. 78, 1868. But since State v. Oliver, 70 N. C. 60, and subsequent cases, we have refused “the blanket of the dark” to these outrages on fe- male weakness and defenselessness. So it is now settled that, technically, a husband cannot commit even a slight assault upon his wife, and that her person is as sacred from his violence as from that of any other person. It is true that he may enforce sexual connection; and, in the exercise of this marital right, it is held that he cannot be guilty of the offense of rape. But it is too plain for argument that this privilege is a personal one, only. Hence if, as in Audley’s Case, 3 How. St. Tr. 401, the husband aids and abets another to ravish his wife, he may be convieted as if he were a stranger. The principle is thus tersely expressed by Sir Matthew Hale: ‘For, though in marriage she hath given up her body to her hus- band, she is not to be by him pros- tituted to another.” Hale, P. C. 629; 2 Bishop, Crim. Law, 1135; Lord Audley’s Case, 3 How. St. Tr. 401.” Wife competent witness against husband in a criminal case in which she is the individual particularly and directly injured or affected by the criminal charge. [Colo.] Dill v. Peo- ple, 19 Colo. 469, 41 Am. St. Rep. 254, 36 Pac. 229, 1894. [Iowa] State v. Chambers, 87 Iowa, 1, 43 Am. St. Rep. 349, 53 N. W. 1090, 1893. [Ky.] Com. v. Sapp, 90 Ky. 580, 29 Am. St. Rep. 405, 14 8. W. §34, 1890. As to wife as a competent witness against husband in a criminal prose- cution, see monographic note in 27 Am. Dec. 377-381. 1See supra, § 223; Nugent v. State, 18 Ala. 521, 1850. 23 Wharton, & S. Med. Jur. §§ 201 et seq. 1See infra, § 744; 1 East, P. C. 446; 1 Hawk. P. C. 123, § 10. [Eng.] Reg. v. Crisham, Car. & M. 187, 1841; Rex vy. Gray, 7 Car. & P. 164; Audrey’s Case, 3 How. St. Tr. 401, 1631; Rex v. Folkes, 1 Moody, C. C. 354. [Cal.] People v. Lewis, 9 Cal. App. 279, 98 Pac. 1078, 1908. [Iowa] State v. Comstock, § 693] RAPE, 861 A woman assisting may be charged as principal in the second degree.” III. Upon Wuom Orrense May Be Comuirrep. § 692. Generally. The crime of rape may be committed upon any female human being;* but the indictment charging the offense need not aver that the victim was a human being, or that she was a female person, where the name by which she is designated is feminine.” A daughter or a sister may be the victim of rape by a man, or of an assault with intent to commit a rape, although such offenses are usually punished as incest.’ § 693. Age of victim. The age of the victim is immate- rial; for there may be a rape of, or an assault to ravish and rape,’ a female under the age of puberty,” or so young that she 46 Iowa, 265, 1877. [Ky.] Kessler v. Com. 12 Bush, 18, 1876. [N. C.J] State v. Jones, 83 N. C. 605, 35 Am. Rep. 586, 1880. [Wis.] State v. Brooks, 138 Wis. 560, 20 N. W. 226, 1909. As to aiders and abettors being guilty as principals in the commis- sion of this offense, see note in 8 L.R.A. 297. —As to husband being an acces- sory, see supra, § 689. Actual intercourse with the wom- an is not necessary. One present and aiding in the commission of the act may be convicted of rape. State v. Brooks, 188 Wis. 560, 120 N. W. 226, 1909. And likewise one who aided and abetted the commission of the act, although not actually witnessing it. People v. Lewis, 9 Cal. App. 279, 98 Pac. 1078, 1908. 2State v. Jones, 83 N. C. 605, 35 Am. Rep. 586, 1880. Girl inciting or aiding unlawful carnal knowledge.—But under sec- tion 5 of the criminal law amend- ment act (1885), forbidding illicit intercourse with girls under sixteen, it is not a criminal offense for the girl to aid and abet a male person in committing, or to incite him to commit, the misdemeanor of having unlawful carnal knowledge of her. Reg. v. Tyrell [1894] 1 Q. B. 710, 43 L. J. Mag. Cas. N. 8. 58, 10 Re- ports, 82, 70 L. T. N.S. 41, 42 Week. Rep. 255, 17 Cox, C. C. 716. 1See [Ala.] Oakley v. State, 135 Ala. 29, 33 So. 693, 1903. [Ark.] Smith v. State, 90 Ark. 4385, 119 S. W. 655, 1909 (immaterial whether she had had intercourse with others or not). ([Cal.] People v. Sheffield, 9 Cal. App. 130, 98 Pac. 67, 1908 (immaterial whether she had been married). [Tex.] Smith v. State, — Tex. Crim. Rep. —, 74 S. W. 556, 1903 (although she be a married woman); Shoemaker v. State, 58 Tex. Crim. Rep. 518, 126 S. W. 887, 1910 (immaterial whether she had intercourse with other men). [Utah] State v. McCune, 16 Utah, 170, 51 Pac. 818, 1898 (although she be of bad repute for chastity). 2See infra, § 739. 3 Bowles v. State, 7 Ohio, pt. 2, p. 243, 1836. Incest is the charge usually made in such cases; but this is not a com- mon-law offense. See post, § 2096. 1See infra, § 743. 21 Hale, P. C. 630, 631; 1 East, P. C. 485; 1 Hawk. P. C. 122, § 4; 4 Bl. Com. 214. [Eng.] Reg. v. Neale, 1 Car. & K. 591, 1 Den. C. C. 862 CRIMINAL LAW. [§ 693 is incapable of giving her consent to the act;* and the statute makes the offense a crime; also designated as rape.* § 694. Mental or physical condition of victim. The mental or physical condition of the female assaulted does not constitute an element in the crime of rape, unless, indeed, it be to aggravate the heinousness of the offense. Thus, the crime may be committed on the body of an idiotic,’ an insane,’ an 36, 1844; Reg. v. Rearden, 4 Fost. & F. 76; Rex v. Brasier, 1 Leach, C, L. 199, 1 Hast, P. C. 443. [Ark.] Dawson v. State, 29 Ark. 116, 1874. [Ga.] Stephen v. State, 11 Ga. 225, 1852. [N. Y.] Hays v. People, 1 Hill, 351, 1841. [Tenn.] Sydney v. State, 3 Humph. 478, 1842. [Va.] Com. v. Watts, 4 Leigh, 673, 1833. See also infra, § 718. 8 [Eng.] Reg. v. Neale, 1 Car. & K. 591, 1 Den. C. C. 36, 1844. [Ala.] Vasser v. State, 55 Ala. 264, 1876; Oakley v. State, 185 Ala. 29, 33 So. 698, 1908. [Ark.] Charles v. State, 11 Ark. 389, 1850; Dawson v. State, 29 Ark. 116, 1874; Smith v. State, 90 Ark. 435, 119 S. W. 655, 1909. [Cal.] People v. Sheffield, 9 Cal. App. 1380, 98 Pac. 67, 1908. [Conn.] State v. Gaul, 50 Conn. 578, 1883. [Ga.] Stephen v. State, 11 Ga. 225, 1852. [Mass.] Com. v. Roosnel], 143 Mass. 32, 8 N. E. 747, 1886. [Miss.] Mobley v. State, 46 Miss. 501, 1872. [N. Y.] People v. Draper, 28 Hun, 1, 1 N. Y. Crim. Rep. 138, 1882. [N. C.] State v. Farmer, 26 N. C. (4 Ired. L.) 224, 1844. [Tenn.] Hill v. State, 3 Heisk. 317, 1871. [Tex.] Gonzales v. State, — Tex. Crim. Rep. —. 62 S. W. 1060, 1901. 4See infra, §§ 709 et seq.; Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355, 1861. 1[Eng.] Reg. v. Fletcher, 8 Cox, C. C. 134, Bell, C. C. 68, 28 L. J. Mag. Cas. N. S. 85, 5 Jur. N. 8. 179, 7 Week. Rep. 204; Reg. v. Pres- sy, 10 Cox, C. C. 635, 17 L. T. N. S. 295, 16 Week. Rep. 142; Reg. v. Barratt, L. R. 2 C. C. 81, 12 Cox, C. C. 498, 43 L. J. Mag. Cas. N. S. 7, 29 L. T. N. S. 409, 22 Week. Rep. 136. ([Cal.] People v. Griffin, 117 Cal. 583, 59 Am. St. Rep. 216, 49 Pac. 711, 1897. [Iowa] State v. Tarr, 28 Iowa, 397, 1869. [Nev.] See State v. Lung, 21 Nev. 209, 37 Am. St. Rep. 505, 28 Pac. 235, 1891. [Ohio] State v. Crow, 1 Ohio Dec. Reprint, 586, 1853, [Tenn.] Blood- worth v. State, 6 Baxt. 614, 32 Am. Rep. 546, 1872. Weakmindedness, merely, does not debar a woman from consenting to the act of sexual intercourse. Mce- Quirk v. State, 84 Ala. 435, 5 Am. St. Rep. 381, 4 So. 775, 1887. 2See [Eng.] Reg. v. Fletcher, 8 Cox, C. C. 131, Bell, C. C. 63, 28 L. J. Mag. Cas. N. S. 85, 5 Jur. N. 8. 179, 7 Week. Rep. 204; Reg. v. Ryan, -2 Cox, C. C. 115. [Can.] Reg. v. Connolly, 26 U. C. Q. B. 317. [Ala.] Lewis v. State, 30 Ala. 54, 68 Am. Dec. 113, 1857; Mce- Quirk v. State, 84 Ala. 435, 5 Am. St. Rep. 381, 4 So. 775, 1887. [Cal.] People v. Griffin, 117 Cal. 583, 59 Am. St. Rep. 216, 49 Pac. 711, 1897. [Ga.] Stephen v. State, 11 Ga. 227, 1852. [Iowa] State v. Cross, 12 Towa, 66, 79 Am. Dec. 519, 1861; State v. Tarr, 28 Iowa, 397, 1869; State v. Atherton, 50 Iowa, 189, 32 Am. Rep. 134, 1878; State v. Me- Donough, 104 Iowa, 6, 73 N. W. 357, 1897. [Mich.] Crosswell v. People, 13 Mich. 427, 87 Am. Dec. 774, 1865. [Mo.] State v. Williams, 149 Mo. 496, 51 S. W. 88, 1899. [Nev.] State v. Lung, 21 Nev. 209, 37 Am. St. Rep. 505, 28 Pac. 235, 1891. {Okla.] Adams v. State, 5 Okla. Crim. Rep. 347, 114 Pac. 347, 1911. As to animal passion leading to consent by weak-minded female as depriving the act of its criminal character, see [Eng.] Reg. v. Fletch- er, 10 Cox, C. C. 248, 85 L. J. Mag. Cas. N. 8S. 172, L. R. 1 C. C. 39, 12 Jur. N.S. 505, 14 L. T. N. 8. 578, § 694] RAPE, 863 intoxicated woman, or one who is at the time insensible from drugs.’ And it has been held that the same rule of law is also 14 Week. Rep. 774. [Mich.] Cross- well v. People, 18 Mich. 427, 87 Am. Dec. 774, 1865. [Mo.] State v. Cunningham, 100 Mo. 382, 19 S. W. 376, 8 Am. Crim. Rep. 669, 1889. [Tex.] Baldwin v. State, 15 Tex. App. 275, 1883; Rodriguiz v. State, 20 Tex. App. 542, 1886. —Inclination favoring act in wom- an is fatal to the prosecution. Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355, 1861. See [Eng.] Reg. v. Hallett, 9 Car. & P. 748, 1841. [Ala.] State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79, 1844. [Ark.] Charles v. State, 11 Ark. 389, 1850; Pleasant v. State, 13 Ark. 360, 1853. [N. Y.] Woodin v. People, 1 Park. Crim. Rep. 464, 1854; People v. Mor- rison, 1 Park. Crim. Rep. 643, 1854. Burden on state to prove prosecu- trix’s mental derangement to such an extent as to render her incapable of understanding the moral nature of the act or of giving assent there- to; state must also show defend- ant knew and took advantage of this mental infirmity. State v. War- ren, 232 Mo. 185, 134 8. W. 522, 1911, Ignorance of mental condition fur- nishes no defense to a prosecution for the alleged crime. People v. Griffin, 117 Cal. 583, 59 Am. St. Rep. 216, 49 Pac. 711, 1897. Sexual intercourse with demented or insane woman who does not re- sist, and who apparently assents thereto, is not rape. Crosswell vy. People, 138 Mich. 427, 87 Am. Dec. 774, 1865. —Man knowing woman to be in- sane, who takes advantage of that fact to carnally know her, when her mental powers are so impaired that she is unconscious of the nature of the act, and is not a willing partic- ipator therein, commits the offense of rape, though there is no distinct proof of her resistance. Crosswell v. People, 13 Mich. 427, 87 Am. Dec. 774, 1865. 3 [Eng.] Reg. v. Camplin, 1 Car. & K. 746, 1 Den. C. C. 89, 1 Cox, C. C. 220, 1844; Reg. v. Ryan, 2 Cox, C. C. 115, 1846; Reg. v. Fletcher, 8 Cox, C. ©. 131, Bell, C. C. 63, 28 L. J. Mag. Cas. N. S. 85, 5 Jur. N. S. 179, 7 Week. Rep. 204; Reg. v. Barratt, L. R. 2 C. C. 81, 12 Cox, C. C. 498, 48 L. J. Mag. Cas. N. 8. 7, 29 L. T. N.S. 409, 22 Week. Rep. 136; R. v. Charter, 18 Shaw, J. P. 746. [Cal.] People v. Snyder, 75 Cal. 323, 17 Pac. 208, 1888. [Me.] State v. Stoyell, 54 Me. 24, 89 Am. Dec. 716, 1866. [Mass.] Com. v. Bakeman, 131 Mass. 577, 41 Am. Rep. 248, 1881; Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, 1870. [Mich.] Crosswell v. People, 13 Mich. 427, 87 Am. Dec. 774, 1865. [Nev.] State v. Lung, 21 Nev. 209, 37 Am. St. Rep. 505, 28 Pac. 235, 1891. [Ohio] State v. Crow, 1 Ohio Dec. Reprint, 586, 1853. Administration of cantharides to a woman for the purpose of pro- curing sexual intercourse with her does not amount to rape, where act is consummated without force, tear, or fraud. State v. Lung, 21 Nev. 209, 37 Am. St. Rep. 505, 28 Pac. 235, 1891. In the above case the court says: | “Whether if there was a drug which, ~ while leaving a woman in the full possession of all her other faculties, would create in her an uncontrollable sexual appetite, its administration by one who intended to have inter- course with her while under its in- fluence would constitute an attempt to rape need not be considered. Such a case has never arisen. Probably there is no such drug. At any rate cantharides will not produce such a condition. While, from the knowl- edge that it will irritate the genital organs, and, in ignorance of its dangerous properties, it has fre- quently been employed for the pur- pose of exciting the sexual propen- sities in females, in no case that we have found has it been held, or even suggested, that its administration constituted an attempt at rape.” Citing: [Eng.] Reg. v. Hanson, 2 Car. & K. 912, 4 Cox, C. C. 138, 1849; Reg. v. Button, 8 Car. & P. 864 CRIMINAL LAW. [§$ G5 applicable to the act in the case of a sleeping,* or an insensible,® woman. § 695. Chastity of victim. At common law and under statute, in the absence of a specific provision to the contrary,’ the chastity or want of chastity on the part of the female is im- material in the commission, or the charge of the commission, of the crime of rape; for carnal knowledge of a woman, without her consent and against her will, constitutes rape where she is lewd and immoral or unchaste,” just the same as though she 660, 1838; Reg. v. Walkden, 1 Cox, C. C. 282, 1845. [Mass.] Com. v. Stratton, 114 Mass. 303, 19 Am. Rep. 350, 1873. [Mich.] People v. Car- michael, 5 Mich. 10, 71 Am. Dee. 769, 1858. Having carnal connection with a woman intoxicated to the point of insensibility, forcibly, is not rape, but merely an offense against the person, under a statute punishing earnally knowing a woman by ad- ministering to her any substance or liquid which shall produce stupor, etc. People v. Quinn, 50 Barb. 128, 1867. 4[Eng.] Reg. v. Mayers, 12 Cox, Cc. C. 811, 1872; Reg. v. Young, 14 Cox, C. C. 114, 38 L. T. N. S. 540, — 1878; Reg. v. Lock, L. R. 2 C. C. 10, 27 L. T. N. S. 661, 42 L, J. Mag. Cas. N. 8S. 5, 21 Week. Rep. 144, 12 Cox, C. C. 244, [Ark.] Harvey v. State, 53 Ark. 425, 22 Am. St. Rep. 229, 14 S. W. 645, 1890. [Mo.] State v. Welch, 191 Mo. 179, 89 S. W. 945, 4 A. & E. Ann. Cas. 681, 1905. [N. Y.] People v. Quinn, 50 Barb. 128, 1867 (held not to be rape). [Tex.] Payne v. State, 40 Tex. Crim. Rep. 202, 76 Am. St. Rep. 712, 49 8S. W. 604, 1899. In Harvey v. State, 53 Ark. 425, 22 Am. St. Rep. 229, 14 S. W. 645, - 1890, the court says: “We have considered the cases of Sullivant v. State, 8 Ark. 400, and Charles v. State, 11 Ark. 390, and cannot as- sent to the doctrine of the latter cases, that if the prisoner designed to accomplish his purpose while the woman was asleep, he was not guilty ot an attemp: to commit rape. The more reasonable and the cor- rect doctrine is laid down in Reg. v. Mayers, 12 Cox, C. C. 311, which is, in substance, that “if a man has, ‘a rape.” or attempts to have, connection with a woman while she is asleep, it is no defense that she did not resist, as she is incapable of resisting. The man can therefore be found guilty of rape, or of an attempt to commit See [Ala.] State v. Me- Call, 4 Ala. 648, 39 Am. Dec. 314, 1843. [La.] State v. Meche, 42 La. Ann. 273, 7 So. 573, 1890. [N. C.] State v. Powell, 94 N. C. 965, 1886. As to rape upon a sleeping woman, see note in 4 A. & E. Ann. Cas. 685. Victim asleep — Consent.—See, for a discussion of the law as to consent where the offense is com- mitted while the victim is asleep, Mooney v. State, 29 Tex. App. 257, 15 S. W. 724, 1890. 5 [Eng.] Reg. v. Camplin, 1 Car. & K. 746, 1 Den. C. C. 89, 1 Cox, C. C. 220, 1844; Reg. v. Ryan, 2 Cox, C. C. 115, 1846; Reg. v. Flet- cher, 8 Cox, C. C. 181, Bell, C. C. 63, 28 L. J. Mag. Cas. N. S. 85, 5 Jur. N. 8. 179, 7 Week. Rep. 204, 1859; Reg. v. Fletcher, 8 Cox, C. C. 184, Bell, C. C. 68, 28 L. J. Mag. Cas. N. S. 85, 5 Jur. N. 8. 179, 7 Week. Rep. 204, 1858; Reg. v. Flet- cher, L. R. 1 C. C. 39, 10 Cox, C. C. 248, 35 L. J. Mag. Cas. N. S. 172, 12 Jur. N. S. 505, 14 L. T. N.S. 573, 14 Week. Rep. 774, 1866; Reg. v. Barrow, L. R. 1 C. C. 156, 11 Cox, C. C. 191, 38 L. J. Mag. Cas. N. 8. 20,19 L. T. N. 8. 293, 17 Week. Rep. 102, 1868; Reg. v. Jones, 4 L. T. N. S. 154. [Mass.] Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, 1870. [Nev.] See State v. Lung, 21 Nev. 209, 37 Am. St. Rep. 505, 28 Pac. 235, 1891. 1See infra, §§ 709 et seq. 2See infra, § 708. § 695] RAPE. 865 were of the most spotless purity and virtue;* but on accusation of the commission of the offense against a woman of unchaste or immoral character, her want of chastity may be shown as bearing on the question of consent to the act.* In such a case 8 [Ark.] Pleasant v. State, 13 Ark. 360, 1853; Pleasant v. State, 15 Ark. 624, 1855; Renfroe v. State, 84 Ark. 16, 104 S. W. 542, 1903; Smith v. State, 90 Ark. 435, 119 8. W. 655, 1909. [Cal.] People v. Hartman, 103 Cal. 242, 42 Am. St. Rep. 108, 37 Pac. 153, 1894. [Conn.] State v. Shields, 45 Conn. 256, 1877; State v. Burns, 82 Conn. 213, 72 Atl. 1083, 16 A. & E. Ann. Cas. 465, 1909. [Idaho] State v. Hender- son, 19 Idaho, 524, 114 Pac. 30, 1911. [1.] Johnson v. People, 197 Il. 48, 64 N. E. 286, 1902. [Ind.] Richie v. State, 58 Ind. 355, 1877; Ander- son v. State, 104 Ind. 467, 4 N. E. 63, 5 Am. Crim. Rep. 601, 1885; Car- ney v. State, 118 Ind. 525, 21 N. E. 48, 1888; Heath v. State, 173 Ind. 296, 90 N. KE. 310, 21 A. & E. Ann. Cas. 1056, 1910. [Iowa] State v. Fernald, 88 Iowa, 5538, 55 N. W. 534, 1893; State v. Jones, 145 Iowa, 176, 123 N. W. 960, 1910. [Ky.] Pugh v. Com. 10 Ky. L. Rep. 64, 7S. W. 541, 8 S. W. 340, 1888; Neace v. Com. 23 Ky. L. Rep. 125, 62 S. W. 732, 1901. [Mich.] Peo- ple v. Crego, 70 Mich. 319, 38 N. W. 281, 1888. [N. Y.] Higgins v. People, 58 N. Y. 377, 1874, affirming 1 Hun, 307, 1874; People v. Marks, 130 N. Y. Supp. 524, 1911. [N. C.] State v. Jefferson, 28 N. C. (6 Ired. L.) 305, 1846. [Tenn.] Wright v. State, 4 Humph. 194, 1843; Jami- son yv. State, 117 ‘Tenn. 58, 94 8. W. 675, 1906. [Tex.] Pefferling v. State, 40 Tex. 486, 1874; Jenkins v. State, 1 Tex. App. 346, 1876; Shoemaker v. State, 58 Tex. Crim. Rep. 518, 126 S. W. 887, 1910; Fore- man v. State, — Tex. Crim. Rep. —, 134 S. W. 229, 1911. [Utah] State v. McCune, 16 Utah, 170, 51 Pac. 818, 1898. [Va.] Fry v. Com. 82 Va. 334, 1886. [Wash.] State v. Sargent, 62 Wash. 692, 35 L.R.A. (N.S.) 173, 114 Pac. 868, 1911. Crim. L. Vol. I.—55. Act occurring in house of ill fame; the degree of the crime is neither removed nor lessened. State v. Burns, 82 Conn. 213, 72 Atl. 1083, 16 A. & E. Ann. Cas. 465, 1909. 4 [Eng.] Reg. v. Tissington, 1 Cox, C. C. 48, 1843; Reg. v. Clay, 5 Cox, C. C. 146, 1851; Rex v. Clarke, 2 Starkie, 241, 1847. [Ala.] Boddie v. State, 52 Ala. 395, 1875; McQuirk v. State, 84 Ala. 435, 5 Am. St. Rep. 381, 4 So. 775, 1887; Herndon v. State, — Ala. App. —, 56 So. 85, 1911. [Ark.] Pleasant v. State, 15 Ark. 624, 1855; Maxey v. State, 66 Ark. 523, 52 S. W. 2, 1899; Jackson v. State, 92 Ark. 71, 122 S. W. 101, 1909. [Cal.] People v. Shea, 125 Cal. 151, 57 Pac. 885, 1899; People v. Fong Chung, 5 Cal. App. 587, 91 Pac. 105, 1907. [Conn.] State v. DeWolf, 8 Conn. 93, 2) Am. Dec, 90, 1830; Rogers v. Moore, 10 Conn. 13, 1833. [¥la.] Rice v. State, 35 Fla. 236, 48 Am. St. Rep. 245, 17 So. 286, 1895. [Ga.] Camp v. State, 3 Ga. 417, 1847; Seals v. State, 114 Ga. 518, 88 Am. St. Rep. 33, 40 S. E. 731, 1902; Black v. State, 119 Ga. 746, 47 S. E. 370, 1904. [Ind.] Anderson v. State, 104 Ind. 467, 4 N. E. 63, 1885, 5 Am. Crim. Rep. 601, 104 Ind. 476, 5 N. E. 711, 1885; Bedzood v. State, 115 Ind. 275, 17 N. E. 621, 1888; Carney v. State, 118 Ind. 525, 21 N. E. 48, 1889. [Iowa] State v. McDonough, 104 Iowa, 6, 73 N. W. 357, 1897. [Kan.] State v. Brown, 55 Kan. 766, 42 Pac. 368, 1895. [Ky.] Brown v. Com. 102 Ky. 227, 48 8. W. 214, 1897; Neace v. Com. 23 Ky. L. Rep. 125, 62 S. W. 733, 1901; Lake v. Com, 31 Ky. L. Rep. 1232, 104 S. W. 1003, 1907. [Md.] Shartzer v. State, 63 Md. 149, 52 Am. Rep. 501, 1884. [Mass.] Com. v. Harris, 131 Mass. 336, 1881. [Mich.] People v. Mc- Lean, 71 Mich. 309, 15 Am. St. Rep. 263, 38 N. W. 917, 1888; People v. Evans, 72 Mich. 367, 40 N. W. 473, 866 CRIMINAL LAW. [§ 695 the impeachment of the character of the prosecutrix in this re- 1888; People v. Ryno, 148 Mich. 137, 111 N. W. 740, 1907; People v. Nichols, 159 Mich. 355, 124 N. W. 25, 1909. [Miss.] Brown v. State, 72 Miss. 997, 17 So. 278, 1895. [Mo.] State v. White, 35 Mo. 500, 1865. [N. H.] State v. Knapp, 45 N. H. 148, 1863. [N. J.] O’Blenis v. State, 47 N. J. L. 279, 1885. [N. M.] Ter- ritory v. Pino, 9 N. M. 598, 58 Pac. 393, 1899. [N. Y.] Woods v. People, 55 N. Y. 515, 14 Am. Rep. 309, 1874; Brennan v. People, 7 Hun, 171, 1876; People v. Abbot, 19 Wend. 192, 1838. [N. C.] State v. Jefferson, 28 N. C. 305, 1846; State v. Daniel, 87 N. C. 507, 1882; State v. Long, 93 N. C. 542, 1885; State v. Hairston, 121 N. C. 579, 28 S. EB. 492, 1897. [Ohio] McCombs v. State, 8 Ohio St. 643, 1858; McDermott v. State, 13 Ohio St. 332, 82 Am. Dec. 444, 1862. [Or.] State v. Ogden, 39 Or. 195, 65 Pac. 449, 1901. [R. L.] State v. Fitz- simon, 18 R. I. 236, 49 Am. St. Rep. 766, 27 Atl. 446, 9 Am. Crim. Rep. 348, 1893. [S. C.] State v. Taylor, 57 8. C. 483, 76 Am. St. Rep. 575, 35 8S. E. 729, 1900. [S. D.] State v. Sysinger, 25 S. D. 110, 125 N. W. 879, 1910; State v. Rash, — S. D. —, 130 N. W. 91, 1911. [Tex.] Dorsey v. State, 1 Tex. App. 33, 1876; Rog- ers v. State, 1 Tex. App. 187, 1876; Favors v. State, 20 Tex. App. 155, 1886; Shields v. State, 32 Tex. Crim. Rep. 498, 23 S. W. 893, 1893; War- ren v. State, 54 Tex. Crim. Rep. 443, 114 S. W. 380, 1908; Bader v. State, 57 Tex. Crim. Rep. 293, 122 8S. W. 555, 1909; Holland v. State, 60 Tex. Crim. Rep. 117, 131 S. W. 563, 1910; Parker v. State, — Tex. Crim. Rep. —, 1386 S. W. 453, 1911. [Vt.] State v. Reed, 39 Vt. 417, 94 Am. Rep. 337, 1867. [W. Va.] State v. Detwiler, 60 W. Va. 583, 55 S. E. 654, 1906; State v. Verto, 65 W. Va. 628, 64 S. E. 1025, 1909. See notes in 17 Am. Dec. 76; 14 Am. Rep. 311; and 76 Am. St. Rep. 580. As to particular acts as well as general reputation being involved, [Cal.] People v. Benson, 6 Cal. 221, 65 Am. Dec. 506, 1856. [Ky.] Hart v. Reed, 1 B. Mon. 166, 35 Am. Dee. 179, 1840. [Me.] Phillips, v. King- field, 19 Me. 375, 36 Am. Dec. 760, 1841. [Mich.] Strang v. People, 24 Mich. 1, 1871. [N. H.] State v. Forsh- ner, 43 N. H. 89, 80 Am. Dec. 132, 1861; State v. Knapp, 45 N. H. 148, 154, 1863. [Ohio] McDermott v. State, 13 Ohio St. 332, 82 Am. Dec. 444, 1862. [Vt.] Crane v. Thayer, 18 Vt. 162, 46 Am. Dec. 142, 1846; State v. Reed, 39 Vt. 417, 94 Am. Dec. 337, 1867. [Wis.] Watry v. Ferber, 18 Wis. 501, 86 Am. Dec. 789, 1864, Evidence of previous acts of in- tercourse for pay is not competent for any purpose. Richie v. State, 58 Ind. 355, 1877. Whether evidence of particular acts of criminality on the part of the prosecutrix is competent is a ques- tion upon which the authorities dif- fer. Woods vy. People, 55 N. Y. 515, 14 Am. Rep. 309, 1874. See also Roscoe, Crim. Ev. 810; and notes in 80 Am. Dec. 368; 82 Am. Dec. 447. Belief of witness that prosecutrix is unchaste is incompetent. State v. Porter, 57 Iowa, 691, 11 N. W. 644, 1882. Evidence of good character is ad- missible as confirming her credibil- ity before the jury. See State v. Case, 96 Iowa, 264, 65 N. W. 149, 1895; Turney v. State, 8 Smedes & M. 104, 47 Am. Dec. 74, 1847. Testimony as to general moral character of prosecutrix at time of alleged offense, held inadmissible in State v. Blackburn, — Iowa, —, 110 N. W. 275, 1907. —Credibility and incompetency of prosecutrix as a witness is affected by proof of the fact that she is a lewd woman. State v. Long, 93 N. C. 542, 1885. Evidence as to chastity must be confined to what is generally said of prosecutrix by those among whom she dwells. Conkey v. People, 1 Abb. App. Dec. 418, 5 Park. Crim. Rep. 36, 1860. Wilson v. State, 17 Tex. App. 525, 1885. —Evidence must be confined to reputation at time of and previous to the alleged act. [Cal.] People v. Johnson, 106 Cal. 289, 39 Pac. 622; § 695] RAPE. 867 spect must be confined to evidence of her general reputation,” except that she may be interrogated as to her previous acts of People v. Benc, 130 Cal. 163, 62 Pace. 404, 1900; People v. Harlan, 133 Cal. 16, 20, 65 Pac. 9, 1901; People v. Wilmot, 139 Cal. 103, 108, 72 Pac. 838, 1908. [Iowa] State v. Ward, 73 Iowa, 532, 35 N. W. 617, 1887. [N. H.] State v. Forshner, 43 N. H. 89, 80 Am. Dec. 132, 1861. [Ohio] Pratt v. State, 19 Ohio St. 277, 1869. [W. Va.j] State v. Barrick, 60 W. Va. 576, 55 S. E. 652, 1906. —Reputation for chastity of asso- ciates is not admissible as tending to show prosecutrix a person of un- chaste character. Woodruff v. State, 72 Neb. 815, 101 N. W. 1114, 1904. See Manning v. State, 43 Tex. Crim. Rep. 302, 96 Am. St. Rep. 873, 65 8S. W. 920, 1901, in which it is held evidence mother of prosecutrix keeping house of ill fame at time, not admissible; also Smith v. State, —Tex. Crim. Rep. —, 73 S. W. 401, 1903, in which evidence the prosecu- trix’s mother kept in her house an unchaste woman was held inadmissi- ble; Neill v. State, 49 Tex. Crim. Rep. 219, 91 S. W. 791, 1906; and James v. State, 124 Wis. 130, 102 N.. W. 320, 1905. See note in 96 Am. St. Rep. 874. —Reputation of prosecutrix’s wit- ness assailed for virtue may be sup- ported by showing general reputa- tion at or prior to the alleged of- fense. Marshall v. Territory, 2 Okla. Crim. Rep. 136, 101 Pac. 139, 1909 (by circumstantial evidence); War- ren v. State, 54 Tex. Crim. Rep. 443, 114 S. W. 380, 1908. —Specific acts indicating want of chastity on part of prosecutrix may be shown; the real issue being not her reputation, but her actual vir- tuous character prior to the alleged criminal act. Hast v. Territory, 5 Okla. Crim. Rep. 162, 114 Pac. 261, 1911. Specific acts of unchastity cannot be inquired into. People v. McLean, 71 Mich. 309, 15 Am. St. Rep. 263, 88 N. W. 917, 1888; People v. Ab- bott, 97 Mich. 484, 37 Am. St. Rep. 860, 56 N. W. 862, 1893. Female under age of consent, evi- dence held inadmissible. See [Ark.] Renfroe v. State, 84 Ark. 16, 104 8. W. 542, 1907. [Cal.] People v. Cur- rie, 14 Cal. App. 67, 111 Pac. 108, 1910. [Conn.] State v. Rivers, 82 Conn. 454, 74 Atl. 757, 1909. [Mo.] State v. Devorss, 221 Mo. 469, 120 S. W. 75, 1909. No question as to force used and want of consent, the question of chastity is not admissible. Steinke v. State, 33 Tex. Crim. Rep. 65, 24S. W. 909, 25 S. W. 287, 1894. 5 General character for chastity, or want of chastity, of prosecutrix, may be shown; but evidence of specific acts of sexual intercourse be- tween her and a third person or per- sons is inadmissible. [Eng.] Rex v. Hodgson, Russ. & R. C. C. 211, af- firmed in Reg. v. Holmes, L. R. 1 C. C. 334, 12 Cox, C. C. 137, 1 Moak, Eng. Rep. 226, 41 L. J. Mag. Cas. N. 8. 12, 25 L. T. N. 8. 669, 20 Week. Rep. 722, which last case overrules Reg. v. Robins, 2 Moody & R. 512, 1 Cox, C. ©. 55; Rex v. Clarke, 2 Starkie, 241. [Ala.] McQuirk v. State, 84 Ala. 435, 5 Am. St. Rep. 381, 4 So. 775, 1887. [Ark.] Pleas- ant v. State, 15 Ark. 624, 1855. [Conn.] State v. DeWolf, 8 Conn. 93, 20 Am. Dee. 90, 1830. [Del.] State v. Turner, Houst. Crim. Rep. (Del.) 76, 1859. [Fla.] Rice v. State, 35 Fla. 236, 48 Am. St. Rep. 245, 17 So. 286, 1895. [Ind.] Wilson v. State, 16 Ind. 392, 1861; Richie v. State, 58 Ind. 355, 1877. [Md.] Shartzer v. State, 63 Md. 149, 52 Am. Rep. 501, 1884 (specific instances of un- chaste conduct may not be shown). [Mass.] Com. v. Regan, 105 Mass. 593, 1870; Com. v. Harris, 131 Mass. 336, 1881. [Mich.] Strang v. People, 24 Mich. 7, 1871; People v. McLean, 71 Mich. 309, 15 Am. St. Rep. 263, 38 N. W. 917, 1888. [Minn.] State v. Vadnais, 21 Minn. 382, 1875. [Mo.] State v. White, 35 Mo. 500, 1865. [N. H.] State v. Forshner, 43 N. H. 89, 80 Am. Dec. 132, 1861; State v. Knapp, 45 N. H. 148, 1863. [N. Y.] People v. Abbot, 19 Wend. 192, 1838. [Ohio] McCombs v. State, 8 868 CRIMINAL LAW. (§ 695 intercourse with the accused,® or as to her promiscuous inter- course with men,’ or as to common prostitution.® This is the general rule, supported by numerous authorities, but in some states it is held otherwise.® Chastity of child is required by the provisions of some of the statutes punishing carnal knowledge of a female child under Ohio St. 648, 1858; McDermott v. State, 13 Ohio St. 332, 82 Am. Dec. 444, 1862. [R. I] State v. Fitz- simon, 18 R. I. 236, 49 Am. 'St. Rep. 766, 27 Atl. 446, 9 Am. Crim. Rep. 343, 1893. [Va.] Coleman v. Com. 84 Va. 1,3 S. E. 878, 1887. See also notes in 17 Am. Dec. 76; 39 Am. Dec. 529; 45 Am. Dec. 230; 80 Am. Dec. 369; 14 Am. Rep. 311; and 42 Am. St. Rep. 111. Compare: Authorities in footnote 7, this section. For review of authorities see Shartzer v. State, 63 Md. 149, 52 Am. Rep. 501, 1884; also note in 14 Am. Rep. 311. As to right to show habit of re- ceiving men into her dwelling for purpose of sexual intercourse, see footnote 7, this section. Evidence of good character, be- fore impeachment, though generally incompetent, admissible to corrobo- rate under certain circumstances. See Merriam v. Hartford & N. H. R. Co. 20 Conn. 354, 52 Am. Dec. 344, 1850. 6 [Eng.] Reg. v. Cockroft, 11 Cox, C. C. 410, 1870; Reg. v. Holmes, 12 Cox, C. C. 137, 41 L. J. Mag. Cas. N. 8S. 12, L. R.1C. C. 334, 25 L. T. N.S. 669, 20 Week. Rep. 122, 1871; Rex v. Aspinall, 2 Starkie, Ev. 700. [Fla.] Rice v. State, 35 Fla. 236, 48 Am. St. Rep. 245, 17 So. 286, 1895. Voluntary sexual intercourse with one accused jointly with defendant, but as to whom prosecution has dis- missed the indictment, may be shown. Bedgood v. State, 115 Ind. 275, 17 N. E. 621, 1888. 7 [Eng.] Reg. v. Robins, 2 Moody & R. 512, 1 Cox, C. C. 55 (but see Reg. v. Holmes, L. R. 1 C. C. 334, 12 Cox, C. C. 1387, 1 Moak, Eng. Rep. 226), 41 L. J. Mag. Cas. N. 8S. 12, 25 L. T. N. S. 669, 20 Week. Rep. 122. [Fla.] Rice v. State, 35 Fla. 236, 48 Am. St. Rep. 245, 17 So. 286, 1895. [Md.] Shartzer v. State, 63 Md. 149, 52 Am. Rep. 501, 1884. [N. Y.] Woods v. People, 55 N. Y. 515, 14 Am. Rep. 309, 1874. [N. C.] State v. Murray, 63 N. C. 31, 1868. [Tenn.] Titus v. State, 7 Baxt. 132, 1874; Benstine v. State, 2 Lea, 169, 31 Am. Rep. 593, 3 Am. Crim. Rep. 386, 1879. [Vt.] State v. Johnson, 28 Vt. 512, 1856; State v. Reed, 39 Vt. 417, 94 Am. Dec. 337, 1867. See review of authorities in Shart- zer v. State, 63 Md. 149, 52 Am. Rep. 501, 1884; also in note in 14 Am. Rep. 311. Agreement for sexual intercourse by prosecutrix with a third person, made on the day of the alleged of- fense, may be shown. McDermott v. State, 13 Ohio St. 332, 82 Am. Dec. 444, 1862. Habit of receiving men in dwelling for purpose of promiscuous sexual intercourse may be shown. Woods v. People, 55 N. Y. 515, 14 Am. Rep. 309, 1874. Specific acts of unchastity with men other than the accused cannot be shown, is held by a line of cases. See State v. Fitzsimon, 18 R. I. 236, 49 Am. St. Rep. 766, 27 Atl. 446, 9 Am. Crim. Rep. 343, 1893. See, also, authorities cited in foot- note 5, this section. ; 8 [Ala.] McQuirk v. State, 84 Ala. 435, 5 Am. St. Rep. 281, 4 So. 775, 1887. [Fla.] Rice v. State, 35 Fla. 236, 48 Am. St. Rep. 245, 17 So. 286, 1895. [N. H.] State v. Forshner, 43 N. H. 89, 80 Am. Dee. 132, 1861; State v. Knapp, 45 N. H. 148, 1863. [Ohio] McCombs v. State, 8 Ohio St. 643, 1858; McDermott v. State, 13 Ohio St. 332, 82 Am. Dec. 444, 1862. 9 See People v. Benson, 6 Cal. 221, 65 Am. Dec. 506, 1856; State v. Reed, 39 Vt. 417, 94 Am. Dec. 337, 1867. § 696] 869 RAPE, a designated age as rape. Under such statutes the burden is on the prosecution to show chastity in the female, and the ac- cused may introduce evidence to show that she is not, and was not prior to and at the time of the alleged offense, chaste and virtuous.” In the absence of such a statutory provision, the fact of chastity or unchastity is not an issue and cannot be shown.” IV. In Waar Carnat Knowxeper Consists. § 696. Penetration must be proved. “A very consider- able doubt,” remarks Mr. East, “having arisen as to what shall be considered sufficient evidence of the actual commission of this offense, it is necessary to enter into an inquiry which would otherwise be offensive to decency. Considering the nature of the crime, that it is a brutal and violent attack upon the honor and chastity of the weaker sex, it seems more natural and con- sonant to those sentiments of laudable indignation which in- duced our ancient lawgivers to rank this offense among felonies, if all further inquiry were unnecessary after satisfactory proof of the violence having been perpetrated by actual penetration of the unhappy sufferer’s body. The quick sense of honor, the pride of virtue, which nature, to render the sex amiable, hath implanted in the female heart, as Mr. Justice Foster has ex- pressed himself, is already violated past redemption, and the injurious consequences to society are in every respect complete. Upon what principle and for what rational purpose any further investigation came to be supposed necessary, the books which record the dicta to that effect do not furnish a trace.” The 10 [Mick.] People v. Mills, 94 Mich. 630, 54 N. W. 488, 1893. [Okla.] Young v. Territory, 8 Okla. 525, 58 Pac. 724, 1899. [Pa.] Com, v. Allen, 135 Pa. 483, 19 Atl. 957, 1890. Acts of unchastity since the com- mission of the crime cannot be shown in evidence. State v. Knock, 142 Mo. 515, 44 S. W. 2385, 1898. 11[Cal.] People v. Johnson, 106 Cal. 289, 39 Pac. 622, 1895. [Conn.] State v. Gaul, 50 Conn, 578, 1883. [Fla.] Holton v. State, 28 Fla. 303, 9 So. 714, 1891. [Mich.] People v. Glover, 71 Mich. 303, 38 N. W. 874, 1888; People v. Abbott, 97 Mich. 484, 37 Am. St. Rep. 360, 65 N. W. 863, 1893. [Mo.] State v. Duffey, 128 Mo. 549, 31 S. W. 98, 1895. [Neb.] George v. State, 61 Neb. 669, 85 N. W. 840, 1901. [Utah] State v. Hil- berg, 22 Utah, 27, 61 Pac. 215, 1900; State v. Williamson, 22 Utah, 248, 83 Am. St. Rep. 780, 62 Pac. 1022, 1900. See infra, § 716; also note in 37 Am. St. Rep. 365. CRIMINAL LAW. [§ 696 870 doubts, however, that existed in England have been put to rest by the 9 Geo. IV. c. 31, making the least penetration enough. Proof of penetration is necessary in order to establish the charge of the crime of rape;? that is, the proof must show beyond a reasonable doubt that there was an actual entrance of the male organ within the labia of the pudendum of the female organ.” This rule applies to all the subdivisions of a statute defining and punishing the crime of rape; that is, to all the classes of rape. Some of the cases have held—but they are a negligible minority—that the whole of the male organ must penetrate the female organ.* The better opinion, and the pre- vailing one, is that full penetration need not be shown, but that proof of any penetration, however slight, of the male organ into the female organ, is sufficient to warrant and sustain a convic- tion, nothing beyond the proof of mere res in re being re- quired.® —Proof by circumstantial evidence of the fact of penetration 1[Ala.] Hutto v. State, 169 Ala. v. State, 146 Ala. 109, 41 So. 413, 19, 53 So. 809, 1910; Harris v. State, 1906. — Ala. —, 56 So. 55, 1911. [Ark.] Green v. State, 91 Ark, 562, 121 8S. W. 949, 1909; Poe v. State, 95 Ark. 172, 129 S. W. 292, 1910. [Cal.] People v. Howard, 143 Cal. 316, 76 Pac. 1116, 1904; People v. Sheffield, 9 Cal. App. 130, 98 Pac. 67, 1908. {Conn.] State v. Ferris, 81 Conn. 97, 70 Atl. 587, 1908. [Del.] Colombo v. State, — Del. —, 78 Atl. 595, 1910, affirming judgment of — Del. —, 75 Atl. 616, 1909. [Fla.] Williams v. State, 53 Fla. 84, 43 So. 431, 1907. [Iowa] State v. Carnagy, 106 Iowa, 485, 76 N. W. 805, 1898. [Mich.] People v. Rivers, 147 Mich. 643, 111 N. W. 201, 1907. [Mo.] State v. Devorss, 221 Mo. 469, 120 S. W. 75, 1909; State v. Headley, 224 Mo. 177, 123 S. W. 577, 1909. [Nev.] State v. Depoister, 21 Nev. 107, 25 Pac. 1000, 1891. [N. C.] State v. Monds, 130 N. C. 697, 41 S. E. 789, 1902. [Tex.] Fitzgerald v. State, 20 Tex. App. 281, 1886. A different rule has been announced in statutory rape, holding that in this crime proof of any injury to the sexual organs of the female, however slight, is sufficient to warrant « con- viction without a penetration. Sims See infra, §§ 711, 719. —Merely hurting - the sexual organs of a female infant is such an “abuse” as is denounced by the statute, al- though they are not bruised, cut, lacerated, or torn. Castleberry v. State, 185 Ala. 24, 33 So. 431, 1903. 2 [Eng.] Reg. v. Allen, 9 Car. & P. 31, 1839; Reg. v. Jordan, 9 Car. & P. 118, 1839. [Ark.] Poe v. State, 95 Ark. 172, 129 S. W. 292, 1910. [Del.] State v. Colombo, — Del. —, 75 Atl. 616, 1909. Uncorroborated testimony of young child as to the fact of penetration, held to be sufficient evidence to war- rant a conviction in State v. Lattin, 29 Conn. 389, 1860. See infra, §§ 711, 719. 3 State v. Sheffield, 9 Cal. App. 130, 98 Pac. 67, 1908. 4See Robertson’s Case, 1 Swinton, 93; Osgood v. State, 64 Wis. 472, 25 N. W. 529, 1885. 5 See infra, § 697. [Eng.] Reg. v. Lines, 1 Car. & K. 393, 1844; Reg. v. Allen, 9 Car. & P. 31, 1839; Reg. v. Jordan, 9 Car. & P. 118, 1839; Reg. v. Russen, 1 East, P. C. 438. [Ala.] Waller v. State, 40 Ala. 325, 1867. [Ga.] Stephen v. State, 11 Ga. § 697] RAPE, 871 may be made,’ it not being necessary that penetration be proved by the testimony of the prosecutrix; 7 and proof of the inter- course is sufficient proof of the penetration,—especially where the female is under the statutory age of consent.’ § 697. —Slight penetration sufficient. But while the slightest penetration is sufficient, there must be proof beyond reasonable doubt of some penetration,’ though the proof of this may be inferred from circumstances aside from the statement 225, 1852. [N. C.] State v. Har- grave, 65 N. C. 466, 1871. [Pa.] Com. v. Sullivan, Addison (Pa.) 143, 1793; Stout v. Com. 11 Serg. & R. 177, 1824. [S. C.] State v. Le Blanc, 1 Treadway, Const. 354, 3 Brev. 339, 1813. [Tex.] Davis v. State, 43 Tex. 189, 1875; Thompson v. State, 43 Tex. 588, 1875; Word v. State, 12 Tex. App. 174, 1882. [Va.] Com. v. Thomas, 1 Va. Cas. 307, 1811. Perfect penetration is not essen- tial. Any penetration of the female body by the male organ is sufficient. People v. Rivers, 147 Mich. 643, 111 N. W. 201, 1907. See infra, § 697, footnotes 1 & 4. 6[Mo.] State v. Devorss, 221 Mo. 469, 120 S. W. 75, 1909. [Neb.] Cook v. State, 85 Neb. 57, 122 N. W. 706, 1909. [Tex.] Word v. State, 12 Tex. App. 174, 1882. See also infra, § 697, footnote 2. Reducing the victim to insensibil- ity by blows. Word v. State, 12 Tex. App. 174, 1882. Resistance and subsequent uncon- sciousness on the part of the victim, without other evidence, will not war- rant or sustain a conviction of rape. Wesley v. State, 65 Ga. 731, 1880. 7 [Eng.] Reg. v. Lines, 1 Car. & K. 393, 1844. [Iowa] State v. Tarr, 28 Towa, 397, 1869. [N. C.] State v. Hodges, 61 N. C. (Phill. L.) 231, 1867, overruling State v. Gray, 53 N. C. (8 Jones, L.) 170, 1860. [Wis.] Brauer v. State, 25 Wis. 413, 1870. 8 State v. Devorss, 221 Mo, 469, 120 S. W. 75, 1909. 1[Eng.] Reg. v. Allen, 9 Car. & P. 31, 1839; Reg. v. Jordan, 9 Car. & P. 118, 1839; Reg. v. Russen, 1 East, P. C. 488. [Ala.] Waller v. State, 40 Ala. 325, 1867. [Ky.] White v. Com. 96 Ky. 180, 28 S. W. 340, 1894. [Mo.] State v. Dalton, 106 Mo. 463, 17S. W. 700, 1891. [Pa.] Com. v. Sullivan, Addison (Pa.) 143, 1793. [S. C.] State v. Le Blanc, 3 Brev. 339, 1816, 1 Treadway, Const. 354, 1813. [Tex.] Davis v. State, 43 Tex. 189, 1875;, Thompson v. State, 43 Tex. 583, 1875; Word v. State, 12 Tex. App. 174, 1882; Rodgers v. State, 30 Tex. App. 510, 17 S. W. 1077, 1891; Massey v. State, 31 Tex. Crim. Rep. 371, 20 S. W. 758, 1892; Ledbetter v. State, 33 Tex. Crim. Rep. 400, 26 S. W. 725, 1894. See 3 Wharton & 8S. Med. Jur. §§ 593 et seq.; also note 80 Am. Dec. 361. Perfect penetration is not neces- sary. People v. Rivers, 147 Mich. 648, 111 N. W. 201, 1907; Kenney v. State, — Tex. Crim. Rep. —, 65 L.R.A. 316, 79 S. W. 817, 1903. Penetration however slight suf- ficient. Fitzgerald v. State, 20 Tex. App. 281, 1886. —Entry of the libia or lips of the female organ, merely, without rup- ture of the hymen or laceration of the vagina, is sufficient to warrant conviction. Kenney v. State, — Tex. Crim. Rep. —, 65 L.R.A. 316, 79 S. W. 817, 1908. See [Eng.] Reg. v. Lines, 1 Car. & K. 393, 1844. [Mich.] People v. Courier, 79 Mich. 366, 44 N. W. 571, 1890. [Tex.] Rodgers v. State, 30 Tex. App. 510, 17 8. W. 1077, 1891. [Wis.] Brauer v. State, 25 Wis. 413, 1870. See also footnote 4, this section. Question for jury whether crime has been consummated; on appeal there can be no discussion as to the extent of the penetration. People v. Crowley, 102 N. Y. 284, 6 N. E. 384, 1886 (statute makes proof of any penetration sufficient). 872 CRIMINAL LAW. [§ 697 of the party injured.” It must be shown, to adopt the phrase- ology of Tindal, C. J., and afterward of Williams, J., that the private parts of the male entered at least to some extent in those of the female.* At one time it was even thought that there must be proof that the hymen was ruptured,* though this is no longer considered necessary.° The law may now indeed be considered as settled that while the rupturing of the hymen is not indispensable to a conviction, there must be proof of some degree of entrance of the male organ “within the labia of the pudendum ;”’® and the practice seems to be, to judge from the cases just cited, not to permit a conviction in those cases in 2 [Eng.] Reg. v. Lines, 1 Car. & K. 393, 1844. [Ind.] Taylor v. State, 111 Ind. 279, 12 N. E. 400, 1887. [Iowa] State v. Tarr, 28 Iowa, 397, 1869. [N. C.] State v. Hodges, 61 N. C. (Phill. L.) 231, 1867, overrul- ing State v. Gray, 53 N. C. (8 Jones, L.) 170, 1860. [Wis.] Brauer v. State, 25 Wis. 413, 1870. See also authorities in footnotes 4 and 6, § 696, supra. Penetration—Medical testimony as to admissibility of both in proof and in rebuttal. State v. Watson, 81 Iowa, 380, 46 N. W. 868, 1890. —Very questionable is the ruling on this point in the remarkable case of Com. v. Beale, Phila. Q. S. Nov. 1854, reported more fully in 3 Whar- ton & S. Med. Jur. §§ 245, 596, 612. —Mere proof by the prosecutrix of resistance and then of unconscious- ness on the part of the prosecutrix (there being no other evidence) is not enough to sustain a conviction. Wesley v. State, 65 Ga. 731, 1880. —Uncorroborated testimony of child—In Connecticut a conviction has been sustained on the uncorrobo- rated testimony as to penetration of a young child. State v. Lattin, 29 Conn. 389, 1860. See Reg. v. Rearden, 4 Fost. & F. 76, 1864; Peo- ple v. Tyler, 36 Cal. 522, 1869. Conception of victim negativing rape—It was formerly thought that if the female conceived, this was evi- dence of consent which negatived rape. This notion, however, has long since been exploded. 1 Hale, P. C. 681; 1 Hawk. P. C. chap. 16, § 8; State v. Knapp, 45 N. H. 148, 1863. 1 —On the other hand, in this coun- try, it has been expressly held that an introduction of an averment that the prosecutrix was gotten with child does not vitiate the indictment. United States v. Dickinson, Hempst. 1, Fed. Cas. No. 14,957a, 1820. This case was tried before the territorial court of Arkansas, in 1820. An ex- traordinary feature of the case is, that the defendant was sentenced to be castrated. He was pardoned, how- ever, and the sentence consequently was never executed. 8 Reg. v. Allen, 9 Car. & P. 31, 1839; Reg. v. Jordan, 9 Car. & P. 118, 1839. 4Rupture of hymen, or tearing or laceration of the parts of the body, though formerly required, is no longer necessary. [Eng.] Reg. v. M’Rue, 8 Car. & P. 641, 1838; Reg. v. Jordan, 9 Car. & P. 118, 1839; Reg. v. Hughes, 9 Car. & P. 752, 2 Moody, C. C. 190, 1841, overruling Rex v. Gammon, 5 Car: & P. 321, 1832 (holding such proof necessary). [Ark.] Poe v. State, 95 Ark. 172, 129 S, W. 292, 1910. [Tex.] Kenney v. State, — Tex. Crim. Rep. —. 65 L.R.A. 316, 79 S. W. 817, 1903. See also, footnote 1, this section; supra, § 696, footnote 5; and 3 Wharton & S. Med. Jur. §§ 249, 593. 5 Reg. v. Hughes, 9 Car. & P. 752, 2 Moody, C. C. 190, 1841. See Reg. v. M’Rue, 8 Car. & P. 641, 1838. 6 Reg. v. Lines, 1 Car. & K. 393, 1844; Reg. v. Jordan, 9 Car. & P. 118, 1839. See 3 Wharton & S. Med. Jur. §§ 249, 593, et seq.; Stephen v. State, 11 Ga. 225, 1852. § 698] RAPE. 873 which it is alleged violence was done, without medical proof of the fact, whenever such proof is attainable.” It seems but right,, both in order to rectify mistakes and to supply the informa- tion necessary to convict, that the prosecutrix should be advised of this at once, so that she can take necessary steps to secure such an examination in due time. If this test be generally insisted upon, there is no danger of any conviction failing be- cause of noncompliance with it; and, on the other hand, many mistaken prosecutions will be stopped at the outset.® § 698. Emission not essential. In England, prior to the statute of 9 Geo. IV.,? the question whether emissio semenis was necessary to constitute the crime of rape was unsettled, and the cases conflicting,” some of them holding that proof of emission was indispensable to a conviction, on the ground that “carnal knowledge” could not exist without emission,®? while others held that, because of the difficulty of directly proving emission, it was to be inferred on proof of the fact of penetra- tion;* the weight of authority being, apparently, against the necessity for such proof.’ Under the statute of Geo. IV., above referred to, proof of penetration was made sufficient.® In this country, proof of emission seems rarely to have been required; and, aside from statute, the prevalent opinion here is that the essence of the crime is the violence done to the person and feelings of the woman,” which is completed by penetration 7As to admissibility of medical testimony—In Nevada. See State v. Depoister, 21 Nev. 107, 25 Pac, 1000, 1891. —In Texas. See Rogers v. State, 30 Tex. App. 462, 17 S. W. 548, 1891. West v. State, — Tex. Crim. Rep. —, 21 S. W. 686, 1893. 8See 8 Wharton & S. Med. Jur. §§ 288, et seq., 593, et seq.; infra, § 721. See White v. Com. 96 Ky. 180, 28 S. W. 340, 1894. 1See supra, § 696. 2See Cave’s Case, 1 East, P. C. 438; R. v. Bloomfield, 1 Hast, P. C. 438; Rex v. Sheridan, 1 East, P. C. 438; Reg. v. Russen, 1 East, P. C. 438; Audley’s Trial, 3 How. St. Tr. 414. 8 Hill’s Case, 1 East, P. C. 439. See Rex v. Burrows, Russ. & R. C. C. 519. 4 Harmwood’s Case, 1 East, P. C. 440; Rex v. Flemming, 1 East, P. C. 440, 2 Leach, C. L. 584; Rex v. Bur- rows, Russ. & R. C. C. 519; Robert- son’s Case, 1 Swinton, 93. 51 East, P. C. 439. 6 Rex v. Jennings, 4 Car. & P. 249, 1 Lewin, C. C. 93; Rex v. Cox, 5 Car. & P. 297, 1 Moody, C. C. 337; Reg. v. Allen, 9 Car. & P. 31, 1839; Rex v. Cozins, 6 Car. & P. 351, 1834; Reg. v. Marsden, 17 Cox, C. C. 297, 2 Q. B. 149, 60 L. J. Mag. Cas. N. S. 171, 39 Week. Rep. 703, 1891; Brook’s Case, 2 Lewin, C. C. 267. 7 Comstock v. State, 14 Neb. 205, 15 N. W. 355, 1883; Com. v. Sullivan, Addison (Pa.) 143, 1793. 874 CRIMINAL LA\W. [§ 698 without emission,® and that it is sufficient to prove penetration, no matter how slight.® —In North Carolina? and Ohio™ emissio semenis has been held to be essential, but in the former state it was held that emission was to be inferred on proof of the fact of penetration. In both these states proof of emission is made unnecessary by statute. —In New York” and other states," by statute, proof of pen- etration alone, without proof of emission, is made sufficient to support a conviction. Emission without penetration is not sufficient to constitute the consummated crime of rape; 8[Ala.] Waller v. State, 40 Ala. 325, 1867. [Conn.] State v. Shields, 45 Conn. 256, 1877. [Del.] State v. Smith, 9 Houst. (Del.) 588, 33 Atl. 441, 1892. [Fla.] Ellis v. State, 25 Fla. 702, 6 So. 768, 1889; Barker v. State, 40 Fla. 178, 24 So. 69, 1898; Williams v. State, 53 Fla. 84, 43 So. 431, 1907. [Ind.] Taylor v. State, 111 Ind. 279, 12 N. E. 400, 1887. [Neb.] Comstock v. State, 14 Neb. 205, 15 N. W. 355, 1883. [Nev.] State v. Depoister, 21 Nev. 107, 25 Pac. 1000, 1891. [N. C.] State v. Monds, 130 N. C. 697, 41 S. E. 789, 1902. [Ohio] Blackburn v. State, 22 Ohio St. 102, 1871. [Pa.] Com. v. Sullivan, Addison (Pa.) 143, 1793. [S. C.] State v. Le Blanc, 1 Tread- way, Const. 354, 3 Brev. 339, 1813. [Tex.] Lujano v. State, 32 Tex. Crim. Rep. 414, 24 8S. W. 97, 1893. As to emission in rape, see notes in 80 Am. Dec. 361, 362, and 11 A, & E. Ann. Cas. 93. Emissio semenis.—It is no longer necessary to prove emissio semenis in order to justify a conviction of rape; any penetration of the female organ of the victim is sufficient. State v. Colombo, — Del. —, 75 Atl. 616, 1909. See State v. McGruder, 125 Iowa, 741, 101 N. W. 646, 1904. Need not be stated or proved. Bar- ker v. State, 40 Fla. 178, 24 So. 69, 1898; State v. Monds, 130 N. C. 697, 41 S. E. 789, 1902. 8 See supra, § 697. 10 State v. Gray, 53 N. C. (8 Jones, L.) 170, 1860; State v. Hodges, 61 N. no act short of actual pene- C. (Phill. L.) 231, 1867; State v. Hargrave, 65 N. C. 466, 1871. Consent gained through fraud is held by another line of cases to be no consent at all; does not deprive the offense of the character of rape. See note in 80 Am. Dec. 366. Also State v. Monds, 130 N. C. 697, 41 8S. E. 789, 1902. Proof dispensed with by statute in both North Carolina and Ohio. See supra, § 686. % °"* 11 The dictum in the case of Wil- liams v. State, 14 Ohio, 222, 45 Am, Dec. 538, 1846, was followed in Noble v. State, 22 Ohio St. 541, 1871, but. later disapproved in “the case of Blackburn v. State, 22 Ohio St. 102, 1871, and denied in Hiltabiddle v. State, 35 Ohio St. 52, 35 Am. Rep. 592, 1878. Proof dispensed with by statute in this state. See supra, § 686. 12 People v. Crowley, 102 N. Y. 234, 6 N. E. 384, 1886, 23 N. Y. Week. Dig. 24, 1886. 13 [Ind.] Taylor v. State, 111 Ind. 279, 12 N. E. 400, 1887; Bradburn v. State, 162 Ind. 689, 71 S. E. 133, 1904. [Tex.] Serio v. State, 22 Tex. App. 633, 3 S. W. 784, 1887; John- son v. State, 27 Tex. App. 163, 11 S. W. 106, 1889; Rodgers v. State, 30 Tex. App. 510, 17 S. W. 1077, 1891; Lujano v. State, 32 Tex. Crim. Rep. 414, 24 8. W. 97, 1893. 141 Hale, P. C. 626; 3 Co. Inst. 600; Audley’s Trial, 3 How. St. Tr. 401, 403; Fitz-Patrick’s Trial, 3 How. St. Tr. 419. & § 699] RAPE, 875 tration, to some extent, of the male organ into the female or- gan, will constitute the consummation of the crime.” V. In Waar Want oF Witt Consists. § 699. “Against her will” equivalent to “without her consent.” The term “against her will” was used in the old statutes convertibly with “without her consent;”? and it may now be received as settled law that rape is proved when carnal intercourse is effected with a woman without her consent, al- though no positive resistance of the will can be shown.? Such being the law, the cases will be now considered specifically. 15See supra, §§ 684, 696. 1See State v. Jackson, 46 La. Ann. 547, 15 So. 402, 1894; Strang v. Peo- ple, 24 Mich. 1, 1871. Resistance necessary and extent to which must be carried and sufficiency thereof, see [Ala.] Herndon v. State, — Ala. —, 56 So. 85, 1911 (entitled to kill assailant if necessary, but not bound to do so). Ariz. Trimble v. Territory, 8 ‘Ariz.“281, 71 Pac. 934, 1903. [Cal.].People v. Harlan, 133 Cal. 16, 65 Pac. 9, 1901. [Ind.] Cross -y. State, 132 Ind. 65, 31 N. E. 4738, ' 1892; Hawkins v. State, 136 Ind. 630, 36 N. E. 419, 1894. [Mich.] Strang v. People, 24 Mich. 1, 1871. [Miss.] Anderson v. State, 82 Miss. 784, 35 So. 202, 1903. [Mo.] State vy. Dusenberry, 112 Mo. 277, 20 S. W. 461, 1892. [Neb.] Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366, 9 N. W. 38, 1881; Vaughn v. State, 78 Neb. 317, 110 N. W. 992, 1907. [N. M.] Mares v. Territory, 10 N. M. 770, 65 Pac. 165, 1901. [Okla.] Sowers v. Territory, 6 Okla. 436, 50 Pac, 257, 1897. [Or.] State v. Cole- stock, 41 Or. 9, 67 Pac. 418, 1902. [S. C.] State v. Sudduth, 52 8S. C. 488, 30 S. E. 408, 1898. [Tex.] Perez v. State, 50 Tex. Crim. Rep. 34, 94 S. W. 1036, 1906. [Wis.] Whittaker v. State, 50 Wis. 518, 36 Am. Rep. 856, 7 N. W. 431, 3 Am. Crim. Rep. 391, 1880; Brown v. State, 127 Wis. 193, 106 N. W. 536, 7 A. & E. Ann. Cas. 258, 1906. As to necessity for resistance, see notes in 80 Am. Dec. 364, and 36 Am. Rep. 860. —As to female under age of con- sent the rule is otherwise. See infra, §§ 709, et seq. —Consent induced by force cal- culated to overcome powers of resist- ance; if her will ceases to operate and she finally gives consent it will not be rape. Mathews v. State, 101 Ga. 547, 29 S. E. 424, 1897. Reluctance does not constitute re- sistance. Taylor v. State, 110 Ga. 150, 35 S. E. 161, 1900. Want of consent and force must be shown to warrant conviction. State v. Cunningham, 100 Mo. 382, 12 8. W. 376, 8 Am. Crim. Rep. 669, 1889; O’Boyle v. State, 100 Wis. 296, 75 N. W. 989, 1898. Jury must be satisfied beyond rea- sonable doubt that there was no con- sent. See [Cal.] People v. Brown, 47 Cal. 447, 1874. [Fla.] Hollis v. State, 27 Fla. 387, 9 So. 67, 1891. [Mass.] Com. v. McDonald, 110 Mass. 405, 1872. [Mich.] Brown v. People, 36 Mich. 203, 2 Am. Crim. Rep. 586, 1878. [Mo.] State v. Burgdorf, 53 Mo. 65, 1873. 2[Eng.] Reg. v. Fletcher, Bell, C. C. 68, 8 Cox, C. C. 131, 28 L. J. Mag. Cas. N. S. 85, 5 Jur. N. S. 179, 7 Week, Rep. 204, 1859; Reg. v. Camp- lin, 1 Car. & K. 746, 1 Den. C. C. 90, 1 Cox, C. C. 220, 1844. [Ark.] Har- vey v. State, 538 Ark. 425, 22 Am. St. Rep. 229, 14 S. W. 645, 1890; Maupin v. State, — Ark. —, 14 S. W. 924, 876 § 700. Acquiescence through fear not consent. CRIMINAL LAW. [§ 700 Con- sent, however reluctant, of free, negatives rape;? but where the woman is insensible through fright, or where she ceases resist- ance under fear of death or other great harm (such fear being gauged by her own capacity), 1890. [Conn.] State v. Shield, 45 Conn. 256, 1856; State v. Shields, 45 Conn. 256, 1877. [Ind.] Hawkins v. State, 136 Ind. 630, 36 N. E. 419, 1894. [Mass.] Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, 1870. [Wis.] Osgood v. State, 64 Wis. 472, 25 N. W. 529, 1885. An able exposition of the law to this effect, by Judge Gray in Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, 1870, and cases cited infra, § 1090. See also Reg. v. Jones, 4 L. T. N. S. 154, 1864. As to robbery, see 1 Hawk. P. C. chap. 41, § 855. On the general question of consent, supra, §§ 180 et seq. —For discussion of law as to con- sent where woman insane, drunk, asleep, insensible, etc., see supra, § 694 On an indictment for fornication and bastardy, the witness testified, “He forced me; he worked himself under me, and in that way forced me; I did not give my consent;” upon a demurrer to this evidence, it was held that it was not such as would merge the offense charged in the crime of rape, but that the de- fendant might be legally convicted of fornication. Com. v. Parr, 5 Watts & 8. 345, 1843. Woman subsequently agreeing to receive compensation for the injury is no defense. State v. Hammond, 77 Mo. 157, 1882. Child submitting in ignorance.— Kelly, C. B., in 1873, on a crown case reserved, said: “I think that when a child submits to an act of this kind in ignorance, the offense is similar to that perpetrated by a man who has connection with a woman while asleep. If that were not an assault, our law would be very defective. In such a case, consent is out of the question, for a woman whilst asleep is in such a state that she cannot consent, and the act of connection the consummated act is rape.” with her under the circumstances is quite sufficient to constitute an as- sault. There are many cases which show that having connection with a woman whilst asleep, or by a power which induces the woman to suppose that it is her husband, amounts to an assault.” Reg. v. Lock, 27 L. T. N. S. 661, 1872. According to an- other report (L. R. 2 C. C. 10), the language of the Chief Baron was: “It is much like the case of an act done to a person while asleep. And although I do not say that con- nection with a woman in that state would be rape, it would be an as- sault.” And see particularly infra, § 750. Section 278 of the New York Penal Code of 1882 includes cases of this class. 1Infra, § 750 [Ala.] State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79, 1844. [Ariz.] Territory v. Potter, 1 Ariz. 421, 25 Pac. 529, 1883. [Ark.] Charles v. State, 11 Ark. 389, 1850. [Mo.] State v. Burgdorf, 53 Mo. 65, 1873. [Neb.] Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366, 9 N. W. 38, 1881. [N. Y.] People v. Donring, 59 N. Y. 374, 17 Am. Rep. 349, 1874; People v. Morrison, 1 Park. Crim. Rep. 626, 1854. [N. C.] State v. Nash, 109 N. C. 824, 13 S. E. 874, 1891. [Tex.] Anschicks v. State, 6 Tex. App. 524, 1879. See infra, 750. 2See supra, §§ 180, et seq; Dalt. ec. 105, 607; 1 Hawk. P. C. chap. 41; 3 Wharton & S. Med. Jur. § 606. [Eng.] Reg. v. Rudland, 4 Fost. & I. 495, 1865; Reg. v. Wright, 4 Fost. & F. 967, 1866. [Ala.] Lewis v. State, 30 Ala. 54, 68 Am. Dec. 113, 1859. [Ark.] Pleasant v. State, 13 Ark. 360, 1852. [Fla.] Hollis v. State, 27 Fla. 387, 9 So. 67, 1891. [Iowa] State v. Fernald, 88 Towa, 553, 55 N. W. 534, 1893. [Kan.] State v. Ruth, 21 Kan. 588, 1879. [Ky.] King v. Com. 14 Ky. L. Rep. 254, 20 § 700] RAPE, 877 Thus, where a father by his ferocity establishes “a reign of terror” in his family, and under this power his daughter re- mains passive while he has carnal intercourse with her, this intercourse, effected by terror, and without consent, is rape.* Nor is it necessary that there should be force enough to create “reasonable apprehension of death.” * But it is necessary to prove in such case that the defendant intended to complete his purpose in defiance of all resistance.® S. W. 224, 1892. [Mich.] Strang v. People, 24 Mich. 1, 1871; People v. Flynn, 96 Mich. 276, 55 N. W. 834, 1893. [Neb.] Oleson v. State, 117 Neb. 276, 38 Am. Rep. 366, 9 N. W. 38, 1881. [Tex.] Sharp v. State, 15 Tex. App. 171, 1883. See infra, § 711, footnote 1. Actually consenting to what was done, on the part of the female, there can be no conviction of rape, or of an assault with intent to rape, whether the female was within the statutory age of consent or not. State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754, 1876; Com. v. Howe, 42 Pa. Super. Ct. 136, 1910. Acquiescence or consent through fear—What sufficient to arouse fears and justify acquiescence or con- sent. [Ala.] Shepherd v. State, 135 Ala. 9, 33 So. 266, 1903. [Fla.] Doyle v. State, 39 Fla. 155, 63 Am. St. Rep. 159, 22 So. 272, 1897. [Ind.] Rahke v. State, 168 Ind. 615, 81 N. E. 584, 1907. [Ky.] Smith v. Com. 119 Ky. 280, 88 S. W. 647, 1904; Clymer v. Com. 23 Ky. L. Rep. 1041, 64S. W. 409, 1901. [Mo.] State v. Cunningham, 100 Mo. 382, 12 S. W. 376, 8 Am. Crim. Rep. 669, 1889. {Neb.] Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366, 9 N. W. 38, 1881. [Okla.] Sowers v. Territory, 6 Okla. 436, 50 Pac. 257, 1897. [S. C.] State v. Dawson, 88 8. C. 225, 70 S. E. 721, 1911. [Tex.] Perez v. State, 50 Tex. Crim. Rep. 34, 94 S. W. 1036, 1906. [W. Va.] State v. Grove, 61 W. Va. 697, 57 S. E. 296, 1907. [Wis.] Whittaker v. State, 50 Wis. 518, 36 Am. Rep. 856, 7 N. W. 431, 3 Am. Crim. Rep. 391, 1880; Loescher v. State, 142 Wis. 260, 125 N. W. 459, 1910. See also note in 36 Am. Rep. 860- 362. —Is not consent, the woman being terrified into submission and failure to make resistance or outcry. 1 Hawk. U. C. chap, 41. [Eng.] Reg. v. Rudland, 4 Fost. & F. 495; Reg. v. Wright, 4 Fost. & F. 967. [Ark.] Pleasant v. State, 13 Ark. 360, 1841. [Ill.] Austine v. People, 110 Ill. 248, 1884. [Kan.] State v. Ruth, 21 Kan. 583, 1879. [IN. Y.] People v. Clemons, 37 Hun, 581, 1885. [Tenn.] Wyatt v. State, 2 Swan, 394, 1852. [Tex.] Sharp v. State, 15 Tex. App. 178, 1883. Cessation of resistance — Cause of for jury.—Whether resistance ceased because it was useless and dangerous, or because the prosecutrix ultimately consented, is for the jury to decide; and in the last case to acquit of the rape. Reg. v. Hallett, 9 Car. & P. 748, 1841; Turner v. People, 33 Mich. 363, 1876; Wright v. State, 4 Humph. 194, 1843. we supra, §§ 179, et seq.; infra, § As to provisions of Minnesota statute, see State v. Vorey, 41 Minn. 134, 43 N. W. 324, 1889. 8 [Eng.] Reg. v. Jones, L. R. 2 C, C. 10, 4 L. T. N. S. 154, 1861. See also Reg. v. Woodhurst, 12 Cox, C. C. 443, 1871. [Mo.] State v. Wilcox, 111 Mo, 569, 33 Am. St. Rep. 551, 20 8S. W. 314, 1892. [S. C.] State v. Dawson, 88 8S. C. 225, 70 S. E. 721, 1911. [Tex.] Sharp v. State, 15 Tex. App. 171, 1883. Compare: Territory v. Potter, 1 Ariz. 421, 25 Pac. 529, 1883; Ham- mond v. State, 39 Neb. 252, 58 N. W. 92, 1894. #Waller v. State, 40 Ala. 325, 1867. But see Territory v. Potter, 1 Ariz, 421, 25 Pac. 529, 1883. 5Supra, § 681. [Eng.] Reg. v. Wright, 4 Fost. & F. 967, 1866. 878 CRIMINAL LAW. [§ 700 It is admissible for the prosecution under this head to give evidence of the defendant’s bodily strength, and of the prose- cutrix’s bodily weakness,° but not that the prosecutrix knew of the defendant’s bad character.’ While the degree of resistance is an incident by which con- sent can be determined, it is not in law necessary to show that the woman opposed all the resistance in her power, if her re- sistance was honest, and was the utmost, according to her lights, that she could offer.® § 701. Acquiescence of infant is not consent. The con- sent of a female of such tender years as to be unconscious of the nature of the act, or even her aiding the prisoner in the at- tempt, is no defense;? and in a case before the court of crimi- [Ala.] Toulet v. State, 100 Ala. 72, 14 So. 403, 1893. [Mich.] Strang v. People, 24 Mich. 1, 1871. [Mo.] State v. Owsley, 102 Mo. 678, 15 8. W. 137, 1891. [Ohio] Blannett v. State, 8 Ohio C. C. 313, 4 Ohio C. D. 32, 1894. [Tex.] Porter v. State, 33 Tex. Crim. Rep. 385, 26 S. W. 626, 1894. [Wis.] Moore v. State, 79 Wis. 546, 48 N. W. 653, 1891. Man led by conduct of woman to believe consent—‘“It is submitted that the true rule must be, that where the man is led from the conduct of the woman to believe that he is not committing a crime known to the law, the act of connection cannot under such circumstances amount to rape. In order to consti- tute rape there must, it would ap- pear, be an intent to have connection with the woman notwithstanding her resistance. In the case of R. v. Urry, tried at Lincoln Spring Assizes, 1873, the above passage was ap- proved of by Denman, J. See, also, case cited where Parke, B., says that the guilt of the accused must depend upon the circumstances as they ap- pear to him.” Roscoe, Crim. Ev. 1878 ed. p. 648; Hunter v. State, 29 Fla. 486, 10 So. 730, 1892; Walton v. State, 29 Tex. App. 163, 15 S. W. 646, 1890. @State v. Knapp, 45 N. H. 148, 1863; Richards v. State, 36 Neb. 17, 53 N. W. 1027, 1893; Walton v. State, 29 Tex. App. 163, 15 S. W. 646, 1890. 7 State v. Porter, 57 Iowa, 691, 11 N. W. 644, 1882. 8 [Eng.] Reg. v. Rudland, 4 Fost. & F. 495, 1865. [Ga.] Crockett v. State, 49 Ga. 185, 1873 [Mass.] Com. v. McDonald, 110 Mass. 405, 1872. [Tex.] Jenkins v. State, 1 Tex. App. 346, 1876. Rape implies force in the man and resistance in the woman. See [Ala.] Toulet v. State, 100 Ala. 72, 14 So. 403, 1893. [Ala.] Hollis v. State, 27 Fla. 387, 9 So. 67, 1891; Holton v. State, 28 Fla. 303, 9 So. 716, 1891. [Ill.] Huston v. People, 121 Ill. 497, 13 N. E. 538, 1887. [Ind.] Mills v. State, 52 Ind. 187, 1875; Anderson v. State, 104 Ind. 467, 4 N. E. 63, 5 N. E. 711, 5 Am. Crim. Rep. 601, 1885; Eberhart v. State, 134 Ind. 651, 34 N. E. 637, 1893; Hawkins v. State, 136 Ind. 630, 36 N. E. 419, 1894. [Mo.] State v. Shroyer, 104 Mo. 441, 24 Am. St. Rep. 344, 16 S. W. 286, 1891; State v. Patrick, 107 Mo. 147, 17 S. W. 666, 1891; State v. Murphy, 118 Mo. 7, 25 S. W. 95, 1893. [Neb.] Hammond v. State, 39 Neb. 252, 58 N. W. 92, 1894. [N. Y.] People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349, 1874; People v. Con- nor, 31 N. Y. 8. R. 23, 9 N. Y. Supp. 674, 1890. [Tex.] Rhea v. State, 30 Tex. App. 488, 17 S. W. 931, 1891; Shields v. State, 32 Tex. Crim. Rep. 498, 23 S. W. 893, 1893. 1[Eng.] Reg. v. Martin, 9 Car. & P. 2138, 2 Moody, C. C. 123, 1840; Reg. v. Johnson, Leigh & C. C. C. 632, § 702] RAPE. 879 nal appeal it was held rape by Lord Campbell, C. J., and all the judges, where a man had carnal knowledge of a girl of thirteen, of imbecile mind, and the jury found that it was by force, and without ler consent, she being incapable of giving consent, but it was not found to be against her will. In Vir- ginia and Louisiana the rule is applied to girls under twelve,* and in New Jersey to girls under ten years.* The statutory offense of sexual knowledge of children is hereafter discussed.* § 702. Acquiescence procured by fraud. As to how far acquiescence produced by surprise or fraud will be a defense has been the subject of some fluctuation of opinion in the Eng- lish courts. 10 Cox C. ©, 114, 34 L. J. Mag. Cas. N. 8. 192, 11 Jur. N. S. 532, 12 L. T. N. 8. 508, 18 Week. Rep. 815, 1865. See, on the same topic, Reg. v. Read, 1 Den. C. C. 377, 2 Car. & K. 957, Temple & N. 52, 3 New. Sess. Cas. 405, 18 L. J. Mag. Cas. N. S. 88, 13 Jur. 68, 3 Cox, C. C. 266, 1849. [Ark.] Dawson vy. State, 29 Ark. 116, 1874; Werner v. State, 54 Ark. 660, 17 8. W. 6, 1891. [Del.] State v. Handy, 4 Harr. (Del.) 566, 1845. [Ga.] Stephen v. State, 11 Ga. 225, 1852. [Iowa] State v. Cross, 12 Iowa, 66, 79 Am. Dec. 519, 1861. [Ky.] White v. Com. 96 Ky. 180, 28 S. W. 340, 1894. [La.] State v. Miller, 42 La, Ann. 1186, 21 Am. St. Rep. 418, 8 So. 309, 1890; State v. Jackson, 46 La. Ann. 547, 15 So. 402, 1894. [Mass.] Com. v. Roosnell, 143 Mass. 32, 8 N. E. 747, 1886. [Mich.] People v. McDonald, 9 Mich. 150, 1861; People v. Courier, 79 Mich. 366, 44 N. W. 571, 1890. [Mo.] State v. Miller, 111 Mo. 542, 20 S. W. 248, 1892. [N. Y.] Hays v. People, 1 Hill, 351, 1840. [N. C.] State v. Dancy, 83 N. C. 608, 1880. [Ohio] Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355, 1867; O’Meara v. State, 17 Ohio St. 515, 1867; Moore v. State, 17 Ohio St. 521, 1867. [Tex.] Robertson v. State, 30 Tex. App. 498, 17 S. W. 1068, 1891. [Va.] Lawrence v. Com. 30 Gratt. 845, 32 Am. Rep. 690, 1878. [Wis.] Proper v. State, 85 Wis. 615, 55 N. W. 1035, 1893. At one time it was ruled that it was not an assault As to carnal knowledge of children, see infra, § 751. Acquiescence of female under age of consent is not usually regarded as consent, see infra, §§ 711, 748; also note in 80 Am. Dec. 365. Contra: State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754, 1876. —For full collection of authori- ties on this point see infra, § 711. 2 Reg. v. Fletcher, 8 Cox, C. C. 131, Bell, C. C. 68, 28 L. J. Mag. Cas. N. S. 85, 5 Jur. N. S. 179, 9 Week. Rep. 204, 1859. So also State v. Tarr, 28 Iowa, 397, 1869; S. P., Stephen v. State, 11 Ga. 225, 1852. 8State v. Tilman, 30 La. Ann. 1249, 31 Am. Rep. 236, 1878; Law- rence v. Com. 30 Gratt. 845, 1878. As to Missouri, see State v. Houx, 109 Mo. 654, 32 Am. St.- Rep. 686, 19 S. W. 35, 1891; State v. Wilcox, 111 Mo. 569, 33 Am. St. Rep. 551, 20 S. W. 314, 1892. As to Texas, see Russell v. State, 33 Tex. Crim. Rep. 424, 26 S. W. 990, 1894; Comer v. State, — Tex. Crim. Rep. —, 20 S. W. 547, 1892. Ignorance by defendant that a girl had not reached the statutory age, is, on statutory prosecutions for abusing a female child, no defense. Supra, §§ 108-113. 4Cliver v. State, 45 N. J. L. 46, 1 Am. Crim. Rep. 532, 1883. See Territory v. Potter, 1 Ariz. 421, 25 Pac. 529, 1883. 5 Infra, § 751; Lon Lee v. State, 44 Tex. Crim. Rep. 354, 61 LRA. 904, 72 S. W. 1005, 1902. 880 CRIMINAL LAW. [§ 702 with an intent to commit a rape for a medical man, under the pretense of administering an injection, to induce a woman to kneel down with her face on the bed, and then to attempt sexual connection with her by surprise, there being nothing to show an intent to use force; but it was said that it would have been rape had the defendant intended to have connection with the prosecutrix by force, and had succeeded. It was afterward held that, when connection with a girl is obtained by inducing her to believe she is at the time submitting to medical treat- ment, such consent is no defense to an indictment for an as- sault;? nor to an indictment for rape* But it must be a clear case of ignorance and innocence in the prosecutrix to jus- tify a conviction of rape when connection was obtained by the defendant by such process with her acquiescence,* and a con- viction of rape cannot be sustained where there is proof of 1[Eng.] Reg. v. Stanton, 1 Car. & K. 415, 1844. See to same effect Reg. v. Flattery, 13 Cox, C. C. 388, 46 L. J. Mag. Cas. N. S. 130, L. R. 2 Q. B. Div. 410, 36 L. T. N. S. 32, 25 Week. Rep. 398, 3 Am. Crim. Rep. 454, 1877. [Ind.] Pomeroy v. State, 94 Ind. 96, 48 Am. Rep. 146, 1883. [Mich.] Don Moran v. People, 25 Mich. 356, 12 Am. Rep. 283, 1872. See also cases cited infra, § 707. As to fraudulently representing husband, and thereby procuring con- sent, see infra, § 704. Several cases are to the effect that consent, though gained by fraud, de- prives the offense of the essential element of rape. [Eng.] Rex v. Jack- son, Russ. & R. C. C. 487; Reg. v. Clarke, 6 Cox, C. C. 412, 1 Bennett & H. Lead. Cas. 232, 29 Eng. L. & Eq. Rep. 542. [Ala.] Lewis v. State, 30 Ala. 56, 68 Am. Dec. 113, 1857. [Tenn.] Wyatt v. State, 2 Swan, 394, 1852. [Conn.] State v. Shepard, 7 Conn. 54, 1828. [Mich.] Crosswell v. Peo- ple, 13 Mich. 427, 87 Am. Dec. 774, 1865. [Pa.] People v. Bartow, 1 Wheeler, C. C. 378. 2 Reg. v. Case, 4 Cox, C. C. 220, 1 Den. C. C. 580, 1 Eng. L. & Eq. Rep. 544, 4 New Sess. Cas. 347, 19 L. J. Mag. Cas. N. S. 174, 14 Jur. 489, 1850 8Reg. v. Flattery, 13 Cox, C. C. 388, 36 L. T. N.S. 32, L. R. 2 Q. B. Div. 410, 46 L. J. Mag. Cas. N. 8. 130, 25 Week. Rep. 398, 3 Am. Crim. Rep. 454, 1877; Eberhart v. State, 134 Ind. 651, 34 N. E. 637, 1893. As to fraudulent representation, medical operation necessary in order to procure consent, see infra, § 707, footnote 3. Acquiescence under belief act is medical treatment.—In Reg. v. Flat- tery, 13 Cox, C. C. 388, 36 L. T. N.S. 32, L. R. 2 Q. B. Div. 410, 46 L. J. Mag. Cas. N. S. 130, 25 Week. Rep. 398, 3 Am. Crim. Rep. 454, 1877, the defendant kept a stall in a public market, and professed to give medi- cal and surgical advice. He ob- tained possession of a girl’s person by pretending that he was going to perform a surgical operation to cure her of her illness. She was nineteen years old, and made a feeble resist- ance, and only acquiesced under the belief that the prisoner was treating her medically, and performing a surgical operation. The court held that there was no consent to the act of sexual intercourse, and that the prisoner was guilty of the crime of rape. 4 Walter v. People, 50 Barb. 144, 1867; State v. Nash, 109 N. C. 824, 13 S. E. 874, 1891. § 703] RAPE. 881 consent given by a weak-minded woman after a mock marriage.® The test is, did the woman voluntarily consent, not to some- thing else (e. g., medical treatment), but to sexual intercourse. ‘If she did, this is a defense, no matter how much she was imposed upon.® The effect of artificial stupefaction will be considered under another head. That an unconscious submis- sion during sleep is rape is now settled.’ § 703. Acquiescence through mental disorder. In re- spect, also, to unconsciousness through mental disease, must again be invoked the position that in cases of rape, “without her consent” is to be treated as convertible with “against her will.”? From this it follows that carnal intercourse with a woman incapable, from mental disease (whether that disease be idiocy or mania), of giving consent, is rape.” 5 Bloodworth v. State, 6 Baxt. 614, 32 Am. Rep. 546, 1872. Illegal marriage used as means to procure woman’s willing ponents act not rape. State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79, 1844. 6Ibid. [Del.] State v. Riggs, Houst. Crim. Rep. (Del.) 120, 1862. [Mo.] State v. Burgdorf, 53 Mo. 65, 1873. [Tex.] Clark v. State, 30 Tex. 448, 1867. 7 Reg. v. Mayers, 12 Cox, C. C. 311, 1872; °3 Wharton & S. Med. Jur. §§ 242, 593 et seq. See infra, § 705. Submitting through stupor or weak mind.—See § 278 of New York Penal Code of 1882, which includes cases of submission through stupor or weakness of mind. 1Supra, § 699; Gore v. State, 119 Ga. 418, 100 Am. St. Rep. 182, 46 8. E. 671, 1904; State v. Cunning- ham, 100 Mo. 382, 12 8. W. 376, 8 Am. Crim. Rep. 669, 1889; State v. Williams, 149 Mo. 496, 51 S. W. 88, 1899. Ignorance of non compos condition of woman, and led from her conduct to believe he has her consent, act not rape. State v. Cunningham, 100 Mo. 382, 12 S. W. 386, 8 Am. Crim. Rep. 669, 1889. Compare: Ignorance of feeble- minded condition of female no de- fense. People v. Griffin, 117 Cal. 583, 59 Am. St. Rep. 216, 49 Pac. 711, 1897. Crim. L. Vol. I.—56. But the ques- Weakness of intellect merely will not deprive a woman of capacity to consent. State v. Cunningham, 100 Mo, 382, 12 S. W. 386, 8 Am. Crim. Rep. 669, 1889. 2 As to idiocy, see this affirmed in Reg. v. Pressy, 10 Cox, C. C. 635, 17 L. T. N. S. 295, 16 Week. Rep. 142, 1867; Reg. v. Fletcher, 8 Cox, C. C. 131, Bell, C. C. 68, 28 L. J. Mag. Cas. N. S. 85, 5 Jur. N. S. 179, 7 Week. Rep. 204, 1851; Reg. v. Barratt, 12 Cox, C. C. 498, L. R. 2 C. C. 81, 48 L. J. Mag. Cas. N.S. 7, 29 L. T. N.S. 409, 22 Week. Rep. 136, 1873; Stephen v. State, 11 Ga. 225, 1852; State v. Tarr, 28 Iowa, 397, 1869; State v. Crow, 10 Ohio Dec. Reprint, 586, 1853; 3 Wharton & S. Med. Jur. §§ 599, et seq. As to mania, see R. v. Charles, 13 Shaw’s J. P. 746. As to stupefaction, see Reg. v. Ryan, 2 Cox, C. C. 115, 1846; infra, § 705. As to other mental conditions, sec State v. Murphy, 118 Mo. 7, 25 S. W. 95, 1893. State of idiocy incapable of con- senting. —In Reg. v. Barratt, 12 Cox, C. C. 498, 1873, L. R. 2 C. ©. 81, Kelly, C. B., said: “I am of opinion that the prisoner, in point of law, was guilty of the crime of rape in this case. I entirely concur in the definition of the crime of rape, as given by Willies, J., in his direction 882 CRIMINAL LAW. [§ 703 tion as to whether the mental disease is such as to incapacitate the patient from assenting, is one to be examined with great care. There are many persons laboring under mitigated in- sanity who are incapable of making contracts, but who, in a modified degree, are responsible for crime.® For a man know- ingly to have criminal intercourse with a woman of intellect thus impaired is no doubt peculiarly wrongful; yet if she be capable of consenting, and does consent, it is not rape.* And a fortiori is this the case when the man has no knowledge that the woman’s intellect is disturbed. Hence, in such cases, if there be consent, a prosecution for rape cannot be sustained.® to the jury, ‘that if the jury were satisfied that the girl was in such a state of idiocy as to be incapable of expressing either consent or dissent, and that the prisoner had connection with her without her consent, it was their duty to find him guilty” In this case the poor creature was not capable of giving her consent. As to the cases of Reg. v. Fletcher, I can- not see the distinction between them in principle.” Blackburn, J.: “I am of the same opinion. I agree with the decision in the first case of Reg. v. Fletcher, and think that the correct rule was laid down in that case. I do not think that the court, in the second case of Reg. v. Fletcher, intended to differ from the decision in the first case of Reg. v. Fletcher. In all these cases the question is whether the prosecutrix is an imbecile to such an extent as to render her incapable of giving consent or exercising any judgment upon the matter, or, in other words, is there sufficient evi- dence of such an extent of idiocy or want of capacity. In the first case of Reg. v. Fletcher, 8 Cox, C. C. 134, Bell, C. C. 68, 28 L. J. Mag. Cas. N. 8. 85,5 Jur. N. 8. 179, 7 Week. Rep. 204, and also in the present case, there was evidence of such an extent of idiocy in the girl as to lead the jury to believe that she was in- capable of giving assent, and that therefore the connection was with- out her consent. In the second case of Reg. v. Fletcher, L. R. 1 C. C. 39, 35 L. J. Mag. Cas. N. 8. 172, 12 Jur. N. 8S. 505, 14 L. T. N. S. 578, 14 Week Rep. 774, 10 Cox, C. C. 248, the evidence of that was much less strong, and the point reserved for the court was whether the case ought to have been left to the jury at all, there being no evidence except the fact of connection and the imbe- cile state of the girl; and all that the court said was, that some evi- dence of its being against her will and without her consent ought to be given in these cases, and that there was not in that case the sort of testimony on which a judge would be justified in leaving it to a jury to find a verdict. Upon the au- thority of the decision in the former case of Reg. v. Fletcher, it is enough to say in this case that the evidence here was that the connection was without the girl’s consent.” 3See 1 Wharton & S. Med. Jur. §§ 50, 122, 242. 4State v. Enright, 90 Iowa, 520, 58 N. W. 901, 1894. 5 Crosswell v. People, 13 Mich. 427. 87 Am. Dec. 774, 1860. See [Eng.| Reg. v. Fletcher, L. R. 1 C. C. 39, 35 L. J. Mag. Cas. N. 8. 172, 12 Jur. N. 8. 505, 14 L. T. N. 8. 573, 14 Week. Rep. 774, 10 Cox, C. C. 248, 1865. [Iowa] State v. Atherton, 50 Iowa, 189, 82 Am. Rep. 134, 1878. [Tenn.] Bloodworth v. State, 6 Baxt. 614, 32 Am. Rep. 546, 1872. [Tex.] Thomp- son v. State, 833 Tex. Crim. Rep. 472, 26 5S. W. 987, 1894; State v. Crow, 10 Ohio Dec. Reprint, 586, 1853. As to the Iowa statute, see Stato v. Enright, 90 Iowa, 520, 58 N. W. 901, 1894. Epilepsy not producing insanity, § 704] RAPE. 883 § 704. Acquiescence, believing person her husband. In England, having carnal knowledge of a woman under circum- stances which induce her to suppose it is her husband has been held by a majority of the judges not to amount to rape; but several of the majority intimated that, should the point again occur, they would direct the jury to find a special verdict.’ In two subsequent cases, where the defendants were indicted for rapes under similar circumstances, Gurney and Aldersen, BB., directed an acquittal for the rape, but held that the defendants might be convicted of the assault, under the stat. 7 Wm. IV. & 1 Vict. c. 85, § 11; and the judges afterward held that upon such conviction hard labor might be added to the sentence of imprisonment.” In 1854, in a case where the finding was that the defendant got into bed with a married woman and had criminal connec- tion, she being awake and believing him to be her husband, but where at the same time it was found the intention on his part was not to consummate the act by force in case of discov- ery, but if detected to desist, it was held by Jervis, C. J., Cole- ridge, J., Alderson, J., Martin, B., and Crowder, J., in a case reserved, that this was not rape.® In 1878, a conviction was sustained by the English Court of Criminal Appeal in a case where the act was partially com- pleted with a married woman, she at the time being asleep, and not consenting, or giving the defendant any reason to be- lieve she consented, and the connection being found by the jury to be against her will.* see Baldwin v. State, 15 Tex. App. 8 Cox, C. C. 223, 1858; Reg. v. Bar- 275, 1888, a case where the disease set up was occasional epileptic fits which had not produced intermediate insanity. 1 Rex v. Jackson, Russ. & R. C. C. 487, 1820. Full discussion of subject in note 80 Am. Dec. 366. 2 Reg. v. Saunders, 8 Car. & P. 265, 1838, and Reg. v. Williams, 8 Car. & P. 286, 1838. 3Reg. v. Clark, 29 Eng. L. & Eq. Rep. 542, Dears. C. C. 397, 6 Cox, C. C. 412, 3 C. L. R. 86, 24 L. J. Mag. Cas. N. S. 25, 18 Jur. 1059, 3 Week. Rep. 20, 1854; S. P., Reg. v. Sweenie, row, L. R. 1 C. C. 156, 11 Cox, C. C. 191, 38 L. J. Mag. Cas. N. S. 20, 19 L. T. N. S, 293, 17 Week. Rep. 102, 1868. 4Reg. v. Young, 38 L. T. N. S. 540, 14 Cox, C. C. 114, 1878, Lord Cole- ridge, C. J., Mellor and Lush, J. J., Cleasby, B., and Lopes, J., assenting. Connection with sleeping woman— Consent.—In this case, Huddleston, B., reported as foliows: “The evi- dence proved that the prosecutrix, a married woman, being partially under the influence of drink on the 2d of February, 1878, went to bed in her lodgings in the Seven Dials 884 CRIMINAL LAW. [§ 704 In 1858, in the High Court of Justiciary in Scotland, it was held (two judges dissenting) not to be rape, when the carnal intercourse was effected by the same fraud, there being nothing in the fact to show whether or not the defendant in- tended to use force.® In Virginia, in a case where the evidence was that the de- fendant, not intending to have carnal knowledge of a white woman by force, but intending to have such knowledge of her while she was asleep, got into bed with her, and pulled up her night garment, which waked her, using no other force, it was held that this was not an attempt to ravish within the Meaning of the statute.® In New York it was determined that when the offense was consummated before the prosecutrix, a married woman, found with her youngest child about nine o’clock; her husband with another child came home about midnight. “About four o’clock in the morn- ing, when all four were asleep, the prisoner entered the room, the door not having been locked, got into bed, in which were the prosecutrix, her husband, and the two children, and proceeded to have connection with the prosecutrix, she being at the time asleep. When she awoke, at first the prosecutrix thought that it was her husband, but on hearing the prisoner speak she looked round, and seeing her husband by her side, she immediately flung the prisoner off her, and called out to her husband. “The prisoner ran away, but be- fore he could make his escape he was secured by a police constable. None of the parties had ever seen the prisoner before. “In answer to questions put by me the jury found that the prosecutrix did not consent before, after, or at the time of the prisoner’s having con- nection with her, that it was against her will, and that the conduct of the prosecutrix did not lead the prisoner to the belief that she did consent. “T put the last question to the jury in consequence of what fell from Denman, J., in Reg. v. Flattery, L. R. 2 Q. B. Div. 410-414, 13 Cox, C. C. 388, 46 L. J. Mag. Cas. N. S. 130, 36 L. T. N. S. 32, 25 Week. Rep. 398, 3 Am. Crim. Rep. 454, 1878. ‘Upon these findings I directed a verdict of guilty, but reserved the question as to whether the conviction was right, the court of criminal ap- peal in Reg. v. Flattery having ex- pressed a desire that the case of Reg. v. Barrow, L. R. 1 ©. C. 156, 1869, 38 L. J. Mag. Cas. N. 8. 20, 11 Cox, C. C. 191, 19 L. T. N. S. 293, 17 Week. Rep. 102, should be recon- sidered.” Lord Coleridge, C. J., said: “We are all of opinion that the addition made by the learned baron to the statement of this case puts an end to any doubt as to the case, under the circumstances, being clearly one of rape.” The rest of the court concurred. It may be, however, that this case may be distinguished from Reg. v. Barrow by the fact that in Reg. v. Young the connection was at least partially had when the woman was asleep, and when she could not have given assent. See Reg. v. Mayers, 12 Cox. CG. C. 311, 1872. 5 Reg. v. Sweenie, 8 Cox, C. C. 228, 1858. 6Com. v. Fields, 4 Leigh, 648, 1832. Intent to force—It would be otherwise if the intent was to use re Carter v. State, 35 Ga. 263, 6. § 704) . RAPE. 885 out that the defendant was not her husband, the rape was com- plete.” And so it is said to have been determined in an anony- mous case before Thompson, C. J., in Albany, at a court of oyer and terminer.® So in an early case, it seemed to be as- sumed in Connecticut that a stealthy connection with a woman, under the impression on her part that it was her husband, was rape.® A contrary view, however, is taken by the Supreme Courts of Tennessee,” Alabama,"! North Carolina,” Michigan,® and Texas.™# In Ireland, in 1884, in a Crown case reserved before all the judges, it was held to be rape where the woman assented to the act under the impression that the defendant was her husband. And it seems most consistent with rulings as to consent in other cases, to hold that consent is not a defense when it was to some- thing essentially different from the act proposed. We have already seen that consent is no defense when what the woman agreed to was a medical operation, and not sexual intercourse,” and the same reasoning obtains when what the woman agreed to was legitimate sexual intercourse with her husband, and not adulterous sexual intercourse with a stranger. 7 People v. Bartow, 1 Wheeler, C. C. 378, 1823. See Walter v. People, 50 Barb. 144, 1867. 8 Anonymous, 1 Wheel. C. C. (N. Y.) 381, 1823. 9State v. Shepard, 7 Conn. 54, 1828. 10 Wyatt v. State, 2 Swan, 394, 1852. 11 Lewis v. State, 30 Ala. 54, 68 Am, Dec. 113, 1857. 12 State v. Brooks, 76 N. C. 1, 1877, resting in part on the overruled case of Reg. v. Barrow, L. R. 1 C. C. 156, 38 L. J. Mag. Cas. N.S. 20, 19 L. T. N. S. 298, 17 Week. Rep. 102, 11 Cox, GC. C. 191, 1869; State v. Williams, 128 N. C. 573, 87 S. E. 952, 1901. 13 See discussion of Coole, J., in Croswell v. People, 13 Mich. 427, 87 Am. Dec. 774, 1865. 14 Payne v. State, 38 Tex. Crim. Rep. 494, 70 Am. St. Rep. 757, 43 S. W. 515, 1897. In Texas, -by statute, the fraud must consist in the use of some stratagem to induce the woman to believe that the ravisher is her hus- band. Mooney v. State, 29 Tex. App. 257, 15 8. W. 724, 1890. 18 But to make 15 Reg. v. Dee, reported in Ir. L. R. 14 C. L, 468, 31 Alb. L. J. 43; Lond. L. T. Jan. 24, 1885. 16 Supra, §§ 191, 192. 17 Supra, § 702. 18Consent secured by fraud— Personating husband.—This is put by Palles, C. B., in Reg. v. Dee, as follows: “What the woman consent- ed to was not adultery, but marital intercourse. The act was not a crime in law. It would not subject her to a divorce. Were adultery criminally punishable by our law, she would not be guilty. It is hardly necessary to point out (but to avoid any misapprehension I desire to do so) that what took place was not a consent in fact, voidable by reason of this fraud, but something which never was a consent ad hoc.” Law- son, J. said: “The question is, What must be the nature of the consent? In my opinion it must be consent to the prisoner having connection with her, and if either of these elements be wanting, it is not consent. Thus in Flattery’s case, where she con- sented to the performance of a surgical operation, and under pre- 886 CRIMINAL LAW. [§ 704 out the offense of rape, the defendant must have intended to ravish, by force, or by inducing consent under the belief that he was her husband. § 705. Acquiescence obtained by artificial stupefaction. In England, in a Crown case reserved, it was proved that the prisoner made the prosecutrix drunk, and that when she was in a state of insensibility took advantage of it, and violated her. The jury convicted the prisoner, and found that the prisoner gave her the liquor for the purpose of exciting her, and then having sexual intercourse with her, and not with the intention of rendering her insensible. The judges held that the pris- oner was properly convicted of rape.’ A conviction was sustained in Massachusetts, in 1870, in a case in which the evidence went simply to the fact that the prosecutrix was at the time of the act unconscious through in- toxication, though there was no allegation that she was made so by the defendant.? tense of performing it the prisoner had connection with her, it was held clearly that she never consented to the sexual connection; the case was one of rape. So if she consents to her husband having connection with her, and the act is done, not by her husband but by another man person- ating the husband, there is no con- sent to the prisoner having con- nection with her, and it is rape. The general principles of the law as to the consent apply to this exse. To constitute consent there must be the free exercise of the will of a con- scious agent, and therefore if the connection be with an idiot incapable of giving consent, or with a woman in a state of unconsciousness, it is rape. In like manner, if the consent be extorted by duress or threats of violence, it is not consent.” 1Supra, § 702. Reg. v. Camplin, 1 Car. & K. 746, 1 Den. C. C. 89, 1 Cox, C. C, 220, 1845. Having connection with woman in state of insensibility—In a letter to Mr. Denison, by Mr. Baron Parke (1 Den. C. C. 89, note a), that learned judge, in commenting on Camplin’s Case, says: “Of the judges who were in favor of the conviction several thought that the crime of On the other hand, in New York, where rape is committed by violating a woman when she is in a state of in- sensibility, and has no power over her will, whether that state is caused by the man or not,—the accused knowing at that time she was in that state.” And Tindal, C. J., and Parke, B., remarked, that in Stat. West. 2, chap. 34, the offense of rape is described to be ravishing a woman “when she did not consent, and not ravishing against her will.” But all the ten judges agreed that in this case, where the prosecutrix was made insensible by the act of the prisoner, and that by an unlawful act, and where also the prisoner must have known that the act was against her consent at the last moment she was capable of exercis- ing her will, because he had attempt- ed to procure her consent, and failed, the offense of rape was committed. See also comments on this case in Reg. v. Page, 2 Cox, C. C. 183, 1846. 2Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, 1870. See State v. Stoyell, 54 Me. 24, 89 Am. Dec. 716, 1866. In Com. v. Bakeman, 131 Mass. 577, 41 Am. Rep. 248, 1881, on evi- dence of this character the defend- ant was convicted of adultery. § 706] RAPE, 887 such intoxication was proved, but where there was no evidence that the original intent was to use force, it was held that rape was not made out under the particular statute.* To rape, it is essential, we should remember, that the act should be intended to be done with force and without the woman’s consent.* In all cases of alleged unconsciousness, however, we should keep in mind the old caution: conniventes habent oculos. Non omnes dormiunt qui clausos et It is at the same time clear, as we have seen, that connection secured when a woman is bona fide asleep, and known to be such by the defendant, is rape.® Force is incident to the physical character of the act; against the will (or without consent) must be inferred from all the circum- stances of the case, to secure a conviction.® § 706. Acquiescence after act no defense. after penetration is held to be no defense; Acquiescence ' nor, a fortiori, is acquiescence after the act is consummated.? 3 Carnal knowledge of intoxicated woman.—People v. Quinn, 50 Barb, 128, 1867. In this case, although Judge Johnson, who gave the opinion of the supreme court, threw out doubts as to the soundness of the ruling in Reg. v. Camplin, 1 Car. & K. 746, 1 Den. C. C. 89, 1 Cox, ©. C. 220, 1845, the decision was put on the single ground that the legis- lature having made carnal knowledge of an intoxicated woman an inde- pendent offense, it must be so treat- ed by the courts. 4Supra, § 681. Connection with woman under in- fluence of ether.—For cases of con- viction for rape committed on a woman under the influence of ether, see State v. Green, 2 Ohio Dec. Re- print, 255, 3 Wharton & S. Med. Jur. 4th ed. § 597; Com. v. Beale, Phila. Q. S., 3 Wharton & 8. Med. Jur. §§ 245 et seq., 596, 612. 5 Reg. v. Mayers, 12 Cox, C. C. 311, 1872; Reg. v. Young, 14 Cox, C. C. 114, 38 L. T. N.S. 540. 6 Carter v. State, 35 Ga. 268, 1866, cited infra, § 748. See Reg. v. Cock- burn, 3 Cox, ©. C. 548, 1849; Com. vy. McDonald, 110 Mass. 405, 1872; People v. Bransby, 32 N. Y. 525, 1865, and cases cited supra, § 853. Chloroform for purpose of attack. —In an interesting pamphlet by Dr. Stephen Rogers on chloroform (N. Y. Harper & Bros. 1877), it is argued with much force that for the pur- poses of attack chloroform cannot be effectively used. See 3 Wharton & S. Med. Jur. § 594. In Com. vy. Beale, Phila. Q. S. 1854, 2 Wharton & S. Med. Jur. 4th ed. §§ 245 et seq. 596, 612, the right- ness of the verdict was much doubt- ed at the time, and shortly after- ward, after a careful re-examination, and on the express ground of the doubts entertained, a pardon was granted by Governor Pollock. 1See infra, § 750; supra, §§ 700, 704. [Eng.] Reg. v. Page, 2 Cox, C. C. 1838. [Mass.] Com. v. McDonald, 110 Mass. 405, 1872. [Mich.] Brown v. People, 36 Mich. 203, 2 Am. Crim. Rep. 586, 1877. [Wis.] Whittaker v. State, 50 Wis. 518, 36 Am. Rep. 856, 7 N. W. 431, 3 Am. Crim. Rep. 391, 1880. “Submission” distinguished from “consent,” in Whittaker v. State, 50 Wis. 518, 36 Am. Rep. 856, 7 N. W. 431, 3 Am. Crim. Rep. 391, 1880. Consent after assault, but before penetration, relieves the sexual in- tercourse of the essential element of rape. Reg. v. Hallett, 9 Car. & P. 748, 1841; State v. Cunningham, 100 Mo. 382, 12 S. W. 376, 8 Am. Crim. Rep. 669, 1889. 2 See supra, §§ 187 et seq.; Brown v. People, 36 Mich. 203, 2 Am. Crim. CRIMINAL LAW. [§ 707 888 § 707. How far fraud is equivalent to force. It has been ruled, in cases where acquiescence was obtained by fraud, that the offense, though an assault, is not rape, if the consent was to illegal sexual intercourse;’ though it is otherwise when the consent was to something else. But when the consent was to something else, e. g., to medical treatment from a physician, then such consent is not a defense.® § 708. Prior unchastity of prosecutrix no defense. The fact of the woman being a common strumpet, or the mistress of the defendant, is no bar, though such fact undoubtedly would prejudice her testimony, and is relevant for the defense as one of the circumstances from which assent may be inferred.? Rep. 586, 1878; Whittaker v. State, 50 Wis. 518, 36 Am. Rep. 856, 7 N. W. 431, 3 Am. Crim. Rep. 391, 1880. Consent given, but withdrawn; ef- fect on character of act. State v. McCaffrey, 63 Iowa, 479, 19 N. W. 331, 1884. Subsequent agreement to receive compensation for the injury consti- tutes no defense. State v. Ham- mond, 77 Mo. 157, 1882. 1Supra, §§ 681, 702. [Eng.] Reg. v. Case, 4 Cox, C. C. 220, 1 Den. C. C. 580, Temple & M. 318, 4 New Sess. Cas. 347, 19 L. J. Mag. Cas. N. 8. 174, 14 Jur. 489, 1850; Reg. v. Lock, 27 L. T. N.S. 661, L. R. 2 0. C. R. 12, 42 L. J. Mag. Cas. N. 8. 5, 21 Week. Rep. 144, 12 Cox, C. C. 244, 1871; Reg. v. Williams, 8 Car. & P. 286, 1838; Rex v. Jackson, Russ. & R. C. C. 487, 1820; Reg. v. Barrow, L. R. 1C. C. 156, 38 L. J. Mag. Cas. N. 8. 20, 19 L. T. N. S. 293, 17 Week. Rep. 102, 11 Cox, C. C. 191, 1868. [Ga.] Stephen v. State, 11 Ga. 225, 1825. [Ind.] Pomeroy v. People, 94 Ind. 96, 48 Am. Rep. 146, 1883. [Mich.] Don Moran v. People, 25 Mich. 356, 12 Am. Rep. 283, 1872. [N. Y.] Walter v. People, 50 Barb. 144, 1867. [Va.] Com. v. Fields, 4 Leigh, 648, 1832. See also other cases cited supra, §§ 185, 681, 702. Quzre whether in England this qualification is now to be insisted on. Reg. v. Flattery, 18 Cox, C. C. 388, L. R. 2 Q. B. Div. 410, 46 L. J. Mag. Cas. N. S. 130, 36 L. T. N.S. 82, 25 Week. Rep. 398; Reg. v. Young, 14 Cox, C. C. 114, 38 L. T. N. 8S. 540, 1878. 2Supra, § 702. 3 Supra, § 702. Pomeroy v. State, 94 Ind. 96, 48 Am. Rep. 146, 1883. Contra: Don Moran v. People, 25 Mich. 356, 12 Am. Rep. 283, 1872. lInfra, § 724; 1 Hale, P. C. 629; Arch. by Jew. 453. [Eng.] Rex v. Barker, 3 Car. & P. 589, 1829. [Ala.] Barnes v. State, 88 Ala. 204, 16 Am. St. Rep. 48, 7 So. 38, 1889. [Ark.] Pleasant v. State, 13 Ark. 360, 1854; Pleasant v. State, 15 Ark. 624, 1855. [Cal.] People v. Hartman, 103 Cal. 242, 42 Am. St. Rep. 108, 37 Pac. 153, 1894. [Fla.] Holton v. State, 28 Fla. 308, 9 So. 716, 1891. [Ind.] Ander- son v. State, 104 Ind. 467, 4 N. E. 63, 5 N. E. 711, 5 Am. Crim. Rep. 601, 1885. [N. Y.] Higgins v. People, 1 Hun, 307, 1874. [Ohio] Pratt v. State, 19 Ohio St. 277, 1869. [Tenn.] Wright v. State, 4 Humph, 194, 1843, [Tex.] Wilson v. State, 17 Tex. App. 525, 1885; Shields v. State, 32 Tex. Crim. Rep. 498, 23 S. W. 8938, 1893, See also cases cited infra, 724. As to chastity, see supra, § 695. As to impeachment of prosecutrix for bad character, see post, § 724; also note in 80 Am. Dec. 368. Chaste female is one who has never had sexual intercourse; who retains her virginity. Marshall v. Territory, 2 Okla. Crim. Rep. 136, 101 Pac. 189, 1909. § 710] RAPE, 889 To what extent evidence impeaching the prosecutrix’s char- acter may be received will be presently considered.® VI. Statutory Rare; Femate unper AcE or Consent. § 709. In general. In many of the states of the Union there are statutes defining and punishing the crime of rape. Some of these statutes define the crime substantially as it is defined at common law; others, in addition, specify the cireum- stances under which the act shall constitute rape; and others still provide for the punishment of the offense without any attempt to define it.1 Under all these various statutes the’ of- fense is the same, or substantially the same, crime known to the common law, and is punishable by the rules prescribed by the common law, es modified by statutes and practice. This class of offenses may be termed rape proper. There is another class of offense known as “statutory rape” to distinguish it from common-law rape. § 710. Statutory rape. A female child of tender years is presumed not to have the understanding to know the nature and realize the consequences of an act of sexual intercourse. For this reason various statutes have been passed in the differ- ent states making it a felony to “carnally know” or “abuse” a female child between designated ages, and under the age of consent’ as fixed by the statute, or by other statutes of the state, and punishing the crime as rape. The offenses thus de- nounced are of a lower degree of criminality than the common- law crime of rape, or rape proper, and are included within that crime.” : Constitutionality of these statutes is upheld by the courts, notwithstanding the fact that they make the act a felony re- Virtuous female is one who has 2See infra, § 724. not had sexual intercourse unlaw- 1See supra, § 682. fully, out of wedlock, knowingly and 1As to the age of consent of voluntarily. Marshall v. Territory, females, in the statutes of the vari- 2 Okla. Crim. Rep. 136, 101 Pac. 139, = states, see supra, § 682, footnote 1909. Fi Defiling women.—For Iowa statute ?Nider v. Com. 140 Ky. 684, 181 defining offense of “defiling a wo- S. W. 1024, 1910, man,” see State v. Fernald, 88 Iowa, 553, 55 N. W. 534, 1893. 890 CRIMINAL LAW. [§ 710 gardless of the intent of the accused, or his knowledge of any facts which would constitute the act a crime.® § 711. Elements of the crime. The essential elements of the statutory crime of rape are similar, yet not the same, as in rape proper,’ except that (1) the assent of the female does not 8 People v. Sheffield, 9 Cal. App. 130, 98 Pac. 67, 1908. See Com. v. Murphy, 165 Mass. 66, 52 Am. St. Rep. 496, 42 N. E. 504, 1895. 1 Acquiescence of female below the age of consent does not constitute consent, and is no defense on prose- cution. See [Ark.] Carothers v. State, 75 Ark. 574, 88 S. W. 585, 1905. [Cal.] People v. Gordon, 70 Cal. 467, 11 Pac. 762, 1886; People v. Stewart, 85 Cal. 174, 24 Pac. 722, 1890; People v. Verdegreen, 106 Cal. 211, 46 Am. St. Rep. 234, 39 Pac. 607, 1895; People v. Lourintz, 114 Cal. 628, 46 Pac. 613, 1896; People ‘vy. Roach, 129 Cal. 33, 61 Pac. 574, 1900; People v. Vann, 129 Cal. 118, 61 Pac. 776, 1900; People v. Johnson, 131 Cal. 511, 63 Pac. 842, 1901; People v. Harlan, 133 Cal. 16, 65 Pac. 9, 1901; People v. Totman, 135 Cal. 135, 67 Pac. 61, 1901; Peo- ple v. Derbert, 138 Cal. 467, 71 Pac. 564, 1903. [Dak.] Territory v. Keyes, 5 Dak. 244, 38 N. W. 440, 1888. [Del.] State v. Handy, 4 Harr. (Del.) 566, 1845; State v. Smith, 9 Houst. (Del.) 588, 33 Atl. 441, 1892; State v. Barrett, 5 Penn. (Del.) 147, 59 Atl. 45, 1904; State v. Cunning- ham, 5 Penn. (Del.) 294, 63 Atl. 30, 1904; Sigerella v. State, — Del. —, 74 Atl. 1081, 1910; State v. Dlugo- zima, 7 Penn. (Del.) 151, 74 Atl. 1086, 1909. [Fla.] McKinny v. State, 29 Fla. 565, 30 Am. St. Rep. 140, 10 So. 732, 1892; Schang v. State, 43 Fla. 561, 31 So. 346, 1901. [Ga.] Stephen v. State, 11 Ga. 225, 1852. [Ill] Porter v. People, 158 Ill. 370, 41 N. E. 886, 1895; Addison v. Peo- ple, 193 Til. 405, 62 N. EH. 235, 1901. [Ind.] Murphy v. State, 120 Ind. 115, 22 N. E. 106, 1889; Hanes v. State, 155 Ind. 112, 57 N. E. 704, 1900. [Iowa] State v. Crossheim, 79 Iowa, 75, 44 N. W. 541, 1890; State v. Bailor, 104 Iowa, 1, 73 N. W. 344, 1897; State v. Sherman, 106 Iowa, 684, 77 N. W. 461, 1898; State v. Carnagy, 105 Iowa, 483, 76 N. W. 805, 1898; State v. Blackburn, — Iowa, —, 110 N. W. 275, 1908; State v. Jones, 145 Iowa, 176, 123 N. W. 960, 1909. [Kan.] State v. Hansford, 81 Kan. 300, 106 Pac. 738, 1909. [Ky.] White v. Com. 96 Ky. 180, 28 S. W. 430, 1894; Johnson y. Com. 7 Ky. L. Rep. 46, 1885; Payne v. Com. 33 Ky. L. Rep. 229, 110 S. W. 311, 1908; Perkins v. Com. — Ky. —, 124 S. W. 794, 1910; Nider v. Com. 140 Ky. 684, 131 S. W. 1024, 1910. [La.] State v. Mehojovich, 118 La. 1013, 43 So. 660, 1907. [Mass.] Com. v. Roos- nell, 143 Mass. 32, 8 N. E. 747, 1886; Com. v. Murphy, 165 Mass. 66, 30 L.R.A, 734, 52 Am. St. Rep. 496, 42 N. E. 504, 10 Am. Crim. Rep. 67, 1895; Com. v. Hackett, 170 Mass. 194, 48 N. E. 1087, 1898. [Mich.] People v. McDonald, 9 Mich. 150, 1861; People v. Courier, 79 Mich. 366, 44 N. W. 571, 1890; People v. Gou- lette, 82 Mich. 36, 45 N. W. 1124, 1890; People v. Ten Elshof, 92 Mich. 167, 52 N. W. 297, 1892; People v. Schoonmaker, 117 Mich. 190, 72 Am. St. Rep. 560, 75 N. W. 439, 1898; People v. Smith, 122 Mich. 284, 81 N. W. 107, 1899; People v. Chamblin, 149 Mich. 653, 113 N. W. 27, 1907. [Miss.] Williams v. State, 47 Miss. 609, 1873. [Mo.] State v. Wray, 109 Mo. 594, 19S. W. 86, 1891; State v. Baker, 136 Mo. 74, 37 S. W. 810, 1896; State v. Ernest, 150 Mo. 347, 51 8. W. 688, 1899; State v. Allen, 174 Mo. 689, 74 S. W. 839, 1903; State v. Day, 188 Mo. 359, 87 S. W. 465, 1905; State v. George, 214 Mo. 262, 113 8. W. 1116, 1908. [WNeb.] Davis v. State, 31 Neb. 247, 47 N. W. 854, 1891; Head v. State, 43 Neb. 30, 61 N. W. 494, 1894; Wood v. State, 46 Neb. 59, 64 N. W. 355, 1895; Myers v. State, 54 Neb. 297, 74 N, W. 605, 1898; George v. State, 61 Neb. 669, 85 N. W. 840, 1901; Bax- ter v. State, 80 Neb. 840, 115 N. W. 534, 1908; Liebscher v. State, 69 § 711] RAPE. 891 relieve the act of its criminal character, because the female is incapable, by reason of her youth and the statutory inhibition, of giving consent to the act;? (2) penetration is not essential * under some of the statutes, but is held to be essential under others ; * and (8) force, actual or constructive, is not an element Neb. 395, 95 N. W. 870, 5 A. & E. Ann. Cas. 351, 1908. [N. J.] Far- rell v. State, 54 N. J. L. 416, 24 Atl. 723, 1892. [N, Y.] Hays v. People, 1 Hill, 351, 1841; Singer v. People, 13 Hun, 418, attrmed in 75 N. Y. 608, 1878; People v. Marks, 130 N. Y. Supp. 524, 1911. [N. C.] State v. Johnston, 76 N. C. 209, 1877; State v. Dancy, 83 N. C. 608, 1880; State v. Staton, 88 N. C. 654, 1883. [Or.] State v. Sargent, 32 Or. 110, 49 Pac. 889, 1897. [Tex.] Mayo v. State, 7 Tex. App. 342, 1879; Comer v. State, — Tex. Crim. Rep. —, 20 S. W. 547, 1892; Allen v. State, 36 Tex. Crim. Rep. 381, 37 S. W. 429, 1896; Callison v. State, 37 Tex. Crim. Rep. 211, 398. W. 300, 1897; Welch v. State, — Tex. Crim. Rep. —, 46 S. W. 812, 1898; Rogers v. State, 40 Tex. Crim. Rep. 355, 50 S. W. 338, 1899. Croomes v. State, 40 Tex. Crim. Rep. 672, 51 S. W. 924, 53 S. W. 882, 1899; McAvoy v. State, 41 Tex. Crim. Rep. 56, 51 S. W. 928, 1899; Buchanan v. State, 41 Tex. Crim. Rep. 127, 52 S. W. 769, 1899; Blair v. State, — Tex. Crim. Rep. —, 60 S. W. 879, 1900; Robertson v. State, 51 Tex. Crim. Rep. 493, 102 S. W. 1130, 1907; Sanders v. State, 54 Tex. Crim, Rep. 171, 112 S. W. 938, 1908; Zachary v. State, 57 Tex. Crim. Rep. 179, 122 S. W. 263, 1909; Alexander v. State, 58 Tex. Crim. Rep. 621, 127 S. W. 189, 1910; Cromeans v. State, 59 Tex. Crim. Rep. 611, 129 S. W. 1129, 1910; Whitehead v. State, — Tex. Crim. Rep. —, 137 8. W. 356, 1911. [Vt.] State v. Wheat, 63 Vt. 673, 22 Atl. 720, 1890; State v. Sul- livan, 68 Vt. 540, 35 Atl. 479, 1896; State v. Clark, 77 Vt. 10, 58 Atl. 796, 1905. [Va.] Givens v. Com. 29 Gratt. 830, 1878; Glover v. Com. 86 Va. 382, 10 S. E. 420, 1889. [Wash.] State v. Hunter, 18 Wash. 670, 52 Pac. 247, 1898. [Wis.] Fizell v. State, 25 Wis. 364, 1870; Proper v. State, 85 Wis. 615, 55 N. W. 1035, 1893; Bannen v. State, 115 Wis. 317, 330, 91 N. W. 107, 965, 1902; Loose v. State, 120 Wis. 115, 97 N. W. 526, 1903. [Wyo.] Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217, 1908. As to proof of consent not being necessary, see note in 5 A. & UK. Ann. Cas. 354. 2Com. v. Roosnell, 143 Mass. 32, 8 N. E. 747, 1886; Com. v. Murphy, 165 Mass. 66, 30 L.R.A. 734, 52 Am. St. Rep. 496, 42 N. E. 504, 10 Am. Crim. Rep. 67, 1895; State v. George, 214 Mo. 262, 113 S. W. 1116, 1908. Actual force and violence need not be alleged in indictment for assault to rape a female under the age of consent. High v. Territory, 12 Ariz. 146, 100 Pac. 448, 1909. Consent of female under age otf consent does not in any way affect the illegality of the act or relieve it of its criminal character. People v. Verdegreen, 106 Cal. 211, 46 Am. St. Rep. 284, 39 Pac. 607, 1895. 3In cases of “statutory rape” the tule is different from that in ordi- nary rape, or rape proper, and any injury, however slight, to the sexual organs of the female, or abuse of them, though there was no penetra- tion, warrants conviction. Sims v. State, 146 Ala. 109, 41 So. 418, 1906. “Carnal abuse” is not the same as “carnal knowledge,” and on a prose- cution for the carnal abuse of a female under the age of consent, proof of penetration is not necessary. State v. Hummer, 73 N. J. L. 714, 65 Atl. 249, 1906, affirming 72 N. J. L. 328, 62 Atl. 388, 1905, rehearing denied in 76 Atl. 294, 1907. Mere hurting of the sexual organs of the female, being proved, justifies conviction under a statute punishing the “abuse” of a female under the age of consent, although the parts are not bruised, cut, lacerated, or torn. Castleberry v. State, 135 Ala. 24, 33 So. 431, 1903. 4Female sexual organ must be 892 CRIMINAL LAW. [§ 711 entering into the offense.® For this reason it has been held that provisions of the statute defining force have no application to this crime.® Accomplices, aiders, and abettors may exist in this crime, the same as in rape proper. Thus, it has been held that where a woman inmate of a house of ill fame agreed to obtain a girl for prostitution, and procured a girl under the age of consent to go to a room in the house with a man, who there, against her protest, had sexual intercourse with her, the woman may be convicted of carnally knowing and abusing the girl as a prin- cipal.” Use of force to accomplish the act of sexual intercourse with a female below the age of consent does not constitute a defense ; ® penetrated to some extent in order to warrant a conviction on a prosecu- tion under statutes of this class. [Ala.] Hutto v. State, 169 Ala. 19, 53 So. 809, 1910. [Cal.] People v. Howard, 143 Cal. 316, 76 Pac. 1116, 1904. [Fla.] Williams v. State, 53 Fla. 84, 43 So. 431, 1907. [Ky.] Nider v. Com. 140 Ky. 684, 131 S. W. 1024, 1910. [N. C.] State v. Monds, 130 N. C. 697, 41 S. E. 789, 1902. It is essential that the fact of sexual penetration be proved, or that facts be proved from which the fact of penetration may be inferred. Peo- ple v. Howard, 143 Cal. 316, 76 Pac. 1116, 1904. See supra, § 696. Or injury to the sexual organs of the female. Hutto v. State, 169 Ala. 19, 53 So. 809, 1910. “Carnal knowledge” and “abuse” in statutes protecting females under a designated age; the word “abuse” means “carnal knowledge,” and car- nal knowledge means sexual inter- course. The word “abuse” does not require that the proof should show an injury to the genital organs of the female, and to an extent further than that naturally resulting from an act of normal intercourse with a fully developed female. State v. Se- bastian, 81 Conn. 1, 69 Atl. 1054, 1908; State v. Ferris, 81 Conn. 97, 70 Atl. 587, 1908. Under statute punishing “know- ing and abusing” a female under the age of consent, proof of injury to and abuse of the genital organs of the female, without actual penetra- tion, will not justify conviction; the language of the statute not being in- tended to create one offense for “knowing” and another for “abus- ing,” the two words having the same meaning, and the gravamen of the offense being the penetration. State v. Monds, 130 N. C. 697, 41 S. E. 789, 1902. 5[Ariz.] High v. Territory, 12 Ariz. 146, 100 Pac. 448, 1909. [Ky.] Perkins v. Com. — Ky. —, 124 S. W. 794, 1910. [Me.] State v. Black, 63 Me. 210, 1874. [Mich.] People v. Courier, 79 Mich. 366, 44 N. W. 571, 1890. [Mo.] State v. George, 214 Mo. 262, 113 S. W. 1116, 1908. [Neb.] Wood v. State, 46 Neb. 58, 64 N. W. 355, 1895. [Tex.] Exon v. State, — Tex. Crim. Rep. —, 33 S. W. 336, 1895; Cromeans v. State, 59 Tex. Crim. Rep. 611, 129 S. W. 1129, 1910. Force implied from the carnal act and the incapacity of the female to consent. Com. v. Sugland, 4 Gray, 7, 1855; People v. McDonald, 9 Mich. 150, 1861; Crosswell v. People, 13 Mich. 427, 87 Am. Dec. 774, 1865. 6 Cromeans v. State, 59 Tex. Crim. Rep. 611, 129 S. W. 1129, 1910. 7State v. Burns, 82 Conn. 213, 72 Atl. 1083, 16 A. & E. Ann. Cas. 465, 1909. 8 State v. Knock, 142 Mo, 515, 44 S. W. 235, 1898; State v. Namey, § 712] RAPE. 893 and while it is not necessary to allege force and violence in the indictment for this offense,° yet if alleged they must be proved, is held by some of the cases;’ but other cases hold what is thought the better rule, that the allegation of force, and failure to prove it on the trial, are immaterial in a prosecution for rape of a female under the age of consent.” § 712. Age of victim. Under the various statutes defin- ing and punishing the crime of statutory rape, the want of knowledge on the part of the defendant that the female was under the age of consent furnishes no defense,’ even though he used reasonable care to ascertain her age.” Every man acts at his peril in this class of offenses, and must ascertain beyond all doubt whether the female is over the statu- tory age, and whether the act contemplated comes within the legislative prohibition.* Burden of proof is on prosecution to establish the fact that the female was under the age of consent at the time of the act com- 168 Mo. 167, 57 L.R.A. 846, 67 S. W. v. Ratz, 115 Cal. 132, 46 Pac. 915, 620, 1902. 9High v. Territory, 12 Ariz. 146, 100 Pac. 448, 1909; Cromeans v. State, 59 Tex. Crim. Rep. 611, 129 S. W. 1129, 1910. 10 Cromeans v. State, 59 Tex. Crim. Rep. 611, 129 S. W. 1129, 1910. 11 State v. Hansford, 81 Kan. 300, 106 Pac. 738, 1909. 1[Cal.] People v. Griffin, 117 Cal. 588, 59 Am. St. Rep. 216, 49 Pac. 711, 1897. [Ind.] Heath v. State, 173 Ind. 296, 90 N. E. 310, 21 A. & E. Ann. Cas. 1056, 1910. [Iowa] State v. Sherman, 106 Iowa, 684, 77 N. W. 461, 1898. [Mass.] Com. v. Murphy, 165 Mass. 66, 30 L.R.A. 734, 52 Am. St. Rep. 496, 42 N. E. 504, 10 Asw. Crim. Rep. 67, 1895. [Mo.] State v. Houx, 109 Mo. 654, 32 Am. St. Rep. 686, 19 S. W. 35, 1891. [Tex.] Manning v. State, 43 Tex. Crim. Rep. 302, 96 Am. St. Rep. 878, 65 S. W. 920, 1901. 2 Manning v. State, 43 Tex. Crim. Rep. 302, 96 Am. St. Rep. 873, 65 8S. W. 920, 1901. 3Com. v. Murphy, 165 Mass. 66, 30 L.R.A. 734, 52 Am. St. Rep. 496, 42 N. E. 584, 10 Am. Crim. Rep. 67, 1895; People v. Marks, 130 N. Y. Supp. 524, 1911. See [Cal.] People 1896; People v. Griffin, 117 Cal. 583, 59 Am. St. Rep. 216, 49 Pac. 711, 1897. [Ill.] McCutcheon v. People (obiter), 69 °Ill. 601, 1 Am. Crim. Rep. 470, 1873. [Ky.] Cooper v. Com. 106 Ky. 909, 45 L.R.A. 216, 90 Am. St. Rep. 275, 51 S. W. 789, 59 S. W. 524, 11 Am. Crim. Rep. 625, 1899. [Tex.] Edens v. State, — Tex. Crim. Rep. —, 43 S. W. 89, 1897; Smith v. State, 44 Tex. Crim. Rep. 137, 100 Am. St. Rep. 849, 68 S. W. 995, 1902; Zachary v. State, 57 Tex. Crim. Rep. 179, 122 S. W. 263, 1909. Man must know at his peril that the female with whom he seeks il- legal intercourse is over age of con- sent. People v. Griffin, 117 Cal. 583, 59 Am. St. Rep. 216, 49 Pac. 711, 1897. Intentional illicit intercourse with a female renders a man responsible criminally for the act, although the offense proves different from that which he had intended. Com. v. Murphy, 165 Mass. 66, 30 L.R.A. 734, 52 Am. St. Rep. 496, 42 N. E. 504, 10 Am. Crim. Rep. 67, 1895; Reg. v. Prince, L. R. 2 C. C. 154, 175, 44 L. J. Mag. Cas. N. 8. 122, 32 L. T. N. S. 700, 24 Week. Rep. 76, 13 Cox, C. C. 138, 1 Am. Crim. Rep. 1. 894 CRIMINAL LAW. [§ 712 plained of, and was within the protection of the statute; but there is no presumption that she had arrived at the age of con- sent.4 § 713. —Belief over age of consent. The fact of an honest or non-negligent belief, upon reason therefor, by the de- fendant that the female was at the time actually over the age at which she had full power to consent to the act, when in fact she was under such age, constitutes no defense to a prosecution for the act;* and the fact of such honest belief on the part of the defendant cannot be taken into consideration by the jury, even in mitigation of punishment.’ Doctrine of mistake of fact, or honest belief, has no applica- tion to this class of offenses.* § 714. —Statements by female as to her age. Likewise, any statements or representations made by the female in re- spect to her age, and that she is above the age at which the statute fixes the power to consent to an act of sexual intercourse, when in truth she is under the age of consent, is immaterial in a prosecution for statutory rape, and furnishes no defense." 4State v. Houx, 109 Mo. 654, 32 Am. St. Rep. 686, 19 S. W. 35, 1891. Defendant’s knowledge female within statutory age need not be roved by the prosecution. State v. Me ptan, 44 Iowa, 45, 1876; State v. Sherman, 106 Iowa, 684, 77 N. W. 461, 1898. 1[Cal.] People v. Ratz, 115 Cal. 132, 46 Pac. 915, 1896. [Ind.] Heath v, State, 173 Ind. 296, 90 N. E. 310, 21 A. & E. Ann. Cas. 1056, 1910. [N. Y.] People v. Marks, 180 N. Y. Supp. 524, 1911. [Tex.] Manning v. State, 43 Tex. Crim. Rep, 302, 96 Am. St. Rep. 873, 65 S. W. 920, 1901; Smith v. State, 44 Tex. Crim. Rep. 137, 100 Am. St. Rep. 849, 68 S. W. 995, 1902; Robertson v. State, 51 Tex. Crim. Rep. 498, 102 S. W. 1130, 1907; Pilgrim v. State, 59 Tex. Crim. Rep. 231, 128 S. W. 128, 1910. Effect of defendant’s mistake as to age of the female under a statute denouncing sexual offense against female under certain specified ages, see note in 25 L.R.A.(N.S.) 661. “Intention to violate the laws of morality and the good order of so- ciety, though with the consent of the girl, and though in a case when he supposes he shall escape punishment, satisfies the demand of the law, and he must take the consequences.” Wharton, Crim. Ev. § 724. See also [Iowa] State v. Newton, 44 Iowa, 45, 1876. [Mo.] State v. Griffith, 67 Mo. 287, 2 Am. Crim. Rep. 634, 1878; State v. Houx, 109 Mo. 654, 32 Am. St. Rep. 686, 19 S. W. 35, 1891. [Va.] Lawrence v. Com. 30 Gratt. 845, 1878. 2Smith v. State, 44 Tex. Crim. Rep. 187, 100 Am. St. Rep. 849, 68 S. W. 995, 1902. 8 [Iowa] State v. Newton, 44 Iowa, 45, 1876. [Tex.] Edens v. State, — Tex. Crim. Rep. —, 43 S. W. 89, 1897; Manning v. State, 43 Tex. Crim. Rep. 302, 94 Am. St. Rep. 873, 65 S. W. 920, 1901. [Va.] Lawrence v. Com, 30 Gratt. 845, 1878. 1 People v. Marks, 130 N. Y. Supp. 524, 1911; Edens v. State, — Tex. Crim. Rep. —, 43 S. W. 89, 1897; Zachary v. State, 57 Tex. Crim. Rep. 179, 122 8S. W. 263, 1909. § 716] RAPE, 895 § 715. Act committed in house of illfame. The fact that an act of sexual intercourse with a female below the age of consent took place when at a house of prostitution does not excuse the act or reduce the grade of the offense ;* and evidence as to the reputation of the character of the house in which the female involved in the crime lives with others is incompetent.” § 716. Prior unchastity. In the absence of a special stat- utory provision to the contrary, in a prosecution for statutory rape, the fact that the female involved had previously been unchase,’ or had previously been raped,? is immaterial and furnishes no defense, and the fact cannot be shown in evidence. The reputation of the female in this respect cannot be given in evidence.* Prior chastity required by the statute. The indictment must allege, and the evidence must show, the previous chastity of the female victim.* The defendant may introduce evidence show- ing the reputation of the female for want of chastity, and also prior acts of unchastity with other men.® 1 State v. Burns, 82 Conn. 213, 72 Atl. 1083, 16 A. & E. Ann. Cas. 465, 1909. 2State v. Taylor, 57 S. C. 483, 76 Am. St. Rep. 575, 35 S. E. 729, 1900. See Manning v. State, 43 Tex. Crim. Rep. 302, 96 Am. St. Rep. 873, 65 S. E. 920, 1901. Evidence mother of female was keeping whore house at the time the alleged offénse was committed is in- competent. The court says: “We fail to see how this would have any bearing as to the guilt or innocence of the accused.” Ibid. 1 [Ark.] Renfroe v. State, 84 Ark. 16, 104 S. W. 542, 1907; Smith v. State, 90 Ark. 435, 119 S. W. 655, 1909. [Cal.] People v. Currie, 14 Cal. App. 67, 111 Pac. 108, 1910. [Conn.] State v. Rivers, 82 Conn. 454, 74 Atl. 757, 1909. [Ind.] Heath v. State, 173 Ind. 296, 90 N. E. 310, 21 A. & E. Ann. Cas. 1056, 1910. [Iowa] State v. Bricker, 135 Iowa, 348, 112 N. W. 645, 1907. [Tex.] Shoemaker v. State, 58 Tex. Crim. Rep. 518, 126 S. W. 887, 1910. [Wash.] State v. Dacke, 59 Wash. 238, 30 L.R.A.(N.S.) 173, 109 Pac. 1050, 1910. See also supra, § 695. Previous unchastity of girl, nor her representation, nor information as to her age, nor her appearance, is a defense to prosecution for statu- tory rape. People v. Marks, 130 N. Y. Supp. 524, 1911. 2State v. Devorss, 221 Mo. 469, 120 S. W. 75, 1909. 8 State v. Hammock, 18 Idaho, 424, 110 Pac. 169, 1910. 4[Neb.] Bailey v. State, 30 L.R.A. (N.S.) 173, note, 57 Neb. 706, 73 Am. St. Rep. 540, 78 N. W. 284, 11 Am. Crim. Rep. 660, 1889. [Tenn.] Jami- son v. State, 117 Tenn. 58, 94 S. W. 675, 1906. [Wash.] State v. Dacke, 59 Wash. 238, 30 L.R.A.(N.S.) 173, 109 Pac. 1050, 1910. Chaste female is one who has never had sexual intercourse and re- tains her virginity. Marshall v. Territory, 2 Okla. Crim. Rep. 136, 101 Pac. 139, 1909. Private as well as notorious un- chastity is included within such stat- ute. Jamison v. State, 117 Tenn. 58, 94 S. W. 675, 1906. Reformed unchaste female, held chaste “at” as well as “before” the act in question. Ibid. 5Unchaste in another state is within the provisions of such statute, 896 CRIMINAL LAW. [§ 717 § 717. Marriage of female. The prior marriage or non- marriage of the female, in a prosecution for statutory rape, is a matter that does not enter into the crime of having sexual intercourse with a female under the age of consent;* and the fact that she had been previously married cannot be given in evidence.® § 718. Puberty of female. Where the statute defining and punishing statutory rape, in fixing the age at which con- sent to the act can be given, uses the words “female” or “fe- male child,” the act of carnally or unlawfully knowing a female under the age fixed by such statute is rape, notwithstanding the fact the female has reached the age of puberty.’ The evident purpose of such statutes is to fix an age in the life of females, until they have attained which, they shall be deemed incapable of consent to sexual intercourse, regardless of their physical development.” The words “child” and “woman,” as applied to females in such statute, are not intended to refer to actual childhood and womanhood as generally understood. If such were the intention, no particular age would be designated, be- cause it is well understood that the age of puberty varies in dif- ferent females; hence, to secure certainty and avoid controver- sy, an arbitrary age is fixed, until a female has reached which, and defendant may be permitted to show prior sexual intercourse in an- other state. Bailey v. State, 30 L.R.A.(N.S.) 1738, note, 57 Neb. 706, 73 Am, St. Rep. 540, 78 N. W. 284, 11 Am. Crim. Rep. 660, 1889; State v. Dacke, 59 Wash. 238, 30 L.R.A. (N.S.) 173, 109 Pac. 1050, 1910. —Doctrine of estoppel cannot be applied by the state, in criminal prosecution. Bailey v. State, 30 L.R.A.(N.S.) 173, note, 57 Neb. 706, 73 Am. St. Rep. 540, 78 N. W. 284, 11 Am. Crim. Rep. 660, 1889. Yet where the state of unchastity is due to the wrongful act of the de- fendant, he will not be permitted to plead his own prior wrongful act as a defense. Ibid. Blair v. State, 72 Neb. 501, 101 N. W. 17, 1904. See note in 30 L.R.A.(N.S.) 173. 1See infra, § 719; People v. Shef- field, 9 Cal. App. 130, 98 Pac. 67, 3908; Smith v. State, — Tex. Crim. Rep. —. 74 S. W. 556, 1903. 2 People v. Sheffield, 9 Cal. App. 130, 98 Pac. 67, 1908. 1State v. Houx, 109 Mo. 654, 32 Am, St. Rep. 686, 19 S. W. 35, 1891; State v. Wright, 25 Neb. 38, 40 N. W. 596, 1888. Age of physical puberty not reached by female need not be proved by prosecution, when it is shown that she was under the age of consent fixed by statute. Ibid. Want of puberal development on part of the female over ten years of age may be considered by the jury, in connection with other evidence, to aid in determining whether she did or did not consent to the act, but not as establishing her inability to consent. State v. McCaffrey, 63 Towa, 479, 19 N. W. 331, 1884. 2State v. Houx, 109 Mo. 654, 32 Am, St. Rep. 686, 19 S. W. 35, 1891. § 719] RAPE. 897 on account of her tender years, she is presumed to be incapable of understanding the nature and consequences of an act of sexual intercourse, without any reference to physical develop- ment.® § 719. Evidence. The burden is on the state to prove that the female was, at the time of the act complained of, under the statutory age;* but proof of knowledge of accused that she was below the age at which she was capable of consenting to the act is not necessary.” In those cases in which the evidence as to the age of the prosecutrix is conflicting, testimony that her monthly sickness had occurred regularly for five years is ad- missible as tending to prove her over the age at which the stat- ute fixes the power to consent.® Resistance and outcry by the female need not be shown in a . prosecution on the charge of statutory rape.* Complaints of the female following the commission of the act complained of are admissible in evidence on a prosecution for this species of rape;® but the admission of testimony of state- ments made by prosecutrix to her mother at time of a miscar- riage, wherein she named defendant as the cause of her preg- 8 [Ark.] Dawson v. State, 29 Ark. 116, 1874; Coates v. State, 50 Ark. 330, 7 Am. Crim. Rep. 585, 7 8. W. 304, 1887. [Cal.] People v. Gordon, 70 Cal. 467, 11 Pac. 762, 1886. [Mo.] State v. Houx, 109 Mo. 654, 32 Am. St. Rep. 686, 19 S. W. 35, 1891. [Tex.] Anschicks v. State, 6 Tex. App. 524, 1879. Ohio statute named three classes of females upon whom such crime may be committed, to wit: (1) A woman, (2) a female child, and (3) a female child under ten years with her consent; the court held that un- der this statute it was at the age of puberty, and not at the age of ma- jority, that a female ceases to be a child, and becomes a woman within the meaning of the statute. Black- burn v. State, 22 Ohio St. 110, 1871. This decision cannot be used as a guide in the interpretation of the statutes of other states, in which the statutory provisions bear no similar- ity. a mlements of the crime are essen- Crim. L. Vol. I.—57. tial the same as those of rape proper, and the burden is on the state to prove all the elements of the offense, to warrant conviction. See supra, §§ 709-711. 2See supra, §§ 712-714. 8 Howerton v. Com. 129 Ky. 482, 112 S. W. 606, 1908. 4State v. Johnson, 133 Iowa, 38, 110 N. W. 170, 1907. 5 Made several days after the crime, held inadmissible, without good reason be shown for the delay in making the complaint. Dunn v. State, 45 Ohio St. 249, 12 N. E. 826, 1887. A showing that complaint was not made because of fear induced by the threats of the accused renders such complaint admissible. People v. Gage, 62 Mich. 271, 4 Am. St. Rep. 854, 28 N. W. 835, 1886. As to admissibility of declaration of infant teo young to be sworn as a witness at the trial, see mono- graphic note in 65 L.R.A. 316-319. CRIMINAL LAW. [§ 719 898 nancy, rests in the sound discretion of the court, in a prosecu- tion for statutory rape.® Corroboration of the prosecutrix is held in some cases not to be necessary to sustain a conviction of statutory rape,’ but the better doctrine is thought to be that there must be some evidence corroborating the testimony of the prosecutrix as to the princi- pal fact, that is, as to the corpus delicti of the crime.® Previous chastity of the female is not an element of the of- fense, in the absence of a statutory provision requiring sucb chastity ; ° but evidence of previous intercourse between the par- ties may be introduced as showing a disposition to commit the crime, and as a matter of corroboration, according to some well reasoned cases.!° This doctrine has not gone unchallenged, 6 State v. Sebastian, 81 Conn. 1, 69 At]. 1054, 1908. 7 State v. Hoben, 36 Utah, 186, 102 Pac. 1000, 1909. See McQueary v. People, 48 Colo. 214, 110 Pac. 210, 21 A. & E. Ann. Cas. 560, 1910. Instruction jury might convict on uncorroborated testimony of prosecu- trix and the surrounding circumstan- ces, if such convinced of guilt beyond a reasonable doubt, is proper where such circumstances are shown in prosecution for statutory rape on female under eighteen years of age. Ibid. Uncorroborated testimony of young child, as to the fact of penetration, is held to be sufficient evidence of the corpus delicti to warrant con- viction, in State v. Lattin, 29 Conn. 889, 1860. 8 Burk v. State, 79 Neb. 241, 112 N. W. 573, 1907; State v. McCool, 53 Wash. 487, 132 Am. St. Rep. 1089, 12 Pac. 422, 1909. Corroboration by evidence of torn clothing, bruised limbs, opportunity for outery, etc., is necessary, where overwhelming force is an ingredient of the offense, but this is not so in statutory rape. McQueary v. People, 48 Colo, 214, 110 Pac. 210, 21 A. & E. Ann. Cas. 560, 1910. Presence of prosecutrix at defend- ant’s house under suspicious circum- stances, a month before the alleged commission of the act, she testifying nothing improper took place there, is not sufficient corroboration to war- rant conviction. State v. McCool, 53 Wash. 487, 132 Am. St. Rep. 1089, 102 Pac. 422, 1909. 9See supra, § 716. See also Peo- ple v. Glover, 71 Mich. 303, 38 N. W.. 874, 1888; People v. Abbott, 97 Mich. 484, 37 Am. St. Rep. 360, 56 N. W. 862, 1893. Law conclusively presumes girl could not give her consent, and after acts of intercourse would be a crime committed against her, and such acts could not, therefore, affect her credi- bility as a witness. Ibid. 10 [Mich.] Strang v. People, 24 Mich. 6, 1871; People v. Abbott, 97 Mich, 484, 837 Am. St. Rep. 360, 56 N. W. 862, 1893. [Ohio] Boyd v. State, 81 Ohio St. 239, 135 Am. St. Rep. 781, 90 N. E. 355, 18 A. & E. Ann, Cas. 441, 1909. [Tex.] Mann- ing v. State, 43 Tex. Crim. Rep. 302, 96 Am. St. Rep. 873, 65 S. W. 920, 1901, See note in 80 Am. Dee. 361-375. Prior acts within two months of the time of the act charged are ad- missible to show the relation of the parties. Boyd v. State, 81 Ohio St. 239, 185 Am. St. Rep. 781, 90 N. E. 355, 18 A. & E, Ann. Cas. 441, 1909. Admissible, not for making it more probable that the crime was commit- ted, but for the purpose of showing the relations of the parties, and the opportunities afforded the accused for meeting the victim. People vy. Abbott, 97 Mich. 484, 37 Am. St. Rep. 360, 56 N. W. 682, 1893. § 719] RAPE. 899 however, and there are a small number of cases in which the reasoning is rejected and the doctrine denied.™ Prior acts of unchastity of accused are admissible, not for the purpose of proving the corpus delicti, but as tending to show his inclination to commit the act; but a defendant cannot be compelled to testify to his previous immorality, when such tes- timony does not tend directly to prove some issue.” —FPrior solicitations to have intercourse with the accused, and the taking of indecent liberties with the person of the prosecu- trix, a girl under the age of consent, a few days prior to the time of the alleged act, are admissible on the question of in- tent.™ Physical condition of the female immediately after the out- rage complained of may be proved as tending to show the com- mission of the offense charged; * but evidence of her condition three months thereafter is too remote to throw any light on the real issue in the case.” Relations of the parties may properly be shown,!® such as presence of the prosecutrix at the home of the defendant,” pres- ents of candy and a ring, made to the prosecutrix by the de- fendant prior to the intercourse, as showing their relation, she Prior character in another state. In Manning v. State, 43 Tex. Crim. Rep. 302, 96 Am. St. Rep. 873, 65 S. W. 920, 1901, the court held evi- dence of such acts permissible, al- though accused could not have been prosecuted for the offense, as show- ing the transaction was between the same parties, and the time would show an intimacy andl familiarity be- tween them, which, with other cir- cumstances, would tend to show the guilt of the accused as to the trans- action charged against him in the in- dictment. Citing Hamilton v. State, 36 Tex. Crim. Rep. 372, 37 S. W. 431, 1896. Evidence of intercourse with other men is inadmissible. People v. Glover, 71 Mich. 303, 38 N. W. 874, 1888; People v. Abbott, 97 Mich. 484, 37 Am. St. Rep. 360, 56 N. W. 862, 1893. llImmoral conduct of defendant with the prosecuting witness several months after the alleged rape is not admissible. State v. Dlugozima, 7 Penn. (Del.) 151, 74 Atl. 1086, 1909. Where age of consent was raised from sixteen to eighteen years; in prosecution for statutory rape, after the raise, evidence of intercourse prior thereto is admissible, although at the time the prosecutrix was over the age of consent as then fixed. State v. Sysinger, 25 S. D. 110, 125 N. W. 879, 1910. 12 State v. Houx, 109 Mo. 654, 32 Am. St. Rep. 686, 19 S. W. 35, 1891. 13 State v. Allison, 24 S. D. 622, 124 N. W. 747, 1910. 14State v. Houx, 109 Mo. 654, 32 Am. St. Rep. 686, 19 S. W. 35, 1891. See infra, § 727, footnote, 1. 15 “Its only effect could have been to show an aggravation of the of- fense, and excite abhorrence in the minds of the jury, and thereby in- crease the punishment.” McFarlane, J., in State v. Houx, 109 Mo. 654, 32 Am. St. Rep. 686, 19 8. W. 35, 1891. 16See Boyd v. State, 81 Ohio St. 239, 185 Am. St. Rep. 781, 90 N. E. 355, 18 A. & E. Amn. Cas. 441, 1909. 17 State v. McCool, 53 Wash. 487, a Am. St. Rep. 1089, 102 Pac. 422, 09. CRIMINAL LAW. [§ 719 900 having consented to the intercourse, and as showing her willing- ness for it.!8 Pregnancy; proof of, is admissible in prosecution for statu- tory rape” for the purpose of proving the corpus delicti, only.” § 720. Indictment. The indictment for statutory rape in having sexual intercourse with a female under the age of con- sent, in the language of the statute, is sufficient; * but it is not necessary to state the offense in the terms of the statute; a sim- ple allegation that the female was of a specified age, or below a specified age, which age was below the age of consent as fixed by the statute, is sufficient.? Age need not be stated further than to allege the female was under the age of consent, where the charge is that she was forcibly ravished against her will;* but where it is stated that 18 Rowan v. State, 57 Tex. Crim. Rep. 625, 186 Am. St. Rep. 1005, 124 S. W. 668, 1910. Evidence showing that defendant took a fifteen-year-old girl to a hotel where they occupied a single room for two days, and then went to another hotel where they stayed for six days, and until the defendant was arrested in bed with the girl, and that her vagina showed signs of recent penetration, is sufficient to support charge of statutory rape. State v. Biggs, 57 Wash. 514, 107 Pac, 374, 1910. 19State v. Dlugozima, 7 Penn. (Del.) 151, 74 Atl. 1086, 1909. See infra, § 729, footnote, 1. 20 People v. Soto, 11 Cal. App. 431, 105 Pac. 420, 1909. Evidence of a miscarriage of the prosecutrix, and testimony of a physician that the foetus was of age and development to have been con- ceived at the time of the alleged rape, and that prosecutrix had in- tercourse with no other man, is ad- missible in prosecution for statu- tory rape. State v. Sebastian, 81 Conn. 1, 69 Atl. 1054, 1908. 1[Ala.] McGuff v. State, 88 Ala. 147, 16 Am. St. Rep. 25, 7 So. 35, 1889. See Myers v. State, 84 Ala. 11, 4 So. 291, 1887. [Cal.] People v. Rozelle, 78 Cal. 84, 20 Pac. 36, 1888; People v. McKenna, 81 Cal. 158, 22 Pac. 488, 1889. [N. Y.] Peo- ple v. King, 110 N. Y. 418, 1 L.R.A. 293, 6 Am. St. Rep. 389, 18 N. E. 245, 1888. [N. C.] State v. Watkins, 101 N. C. 702, 8 S. E. 346, 1888. ([Or.] State v. Light, 17 Or. 358, 21 Pac. 132, 8 Am. Crim. Rep. 326, 1889; State v. Lee, 17 Or. 488, 21 Pac. 455, 1889. [W. Va.] State v. Sparks, 30 W. Va. 101, 3 S. E. 1887. See note in 94 Am. Dec. 253. Indictment charging accused “did carnally know, or abuse in an at- tempt to carnally know, a girl [giv- ing name] under the age of ten years,” held sufficient. McGuff v. State, 88 Ala. 147, 16 Am. St. Rep. 25, 7 So. 35, 1889. 2State v. Burt, 75 N. H. 64, 71 Atl. 30, 1909. 8 [Ark.] Inman v. State, 65 Ark. 508, 47 S. W. 558, 1898. [Cal.] Peo- ple v. Totman, 135 Cal. 138, 67 Pac. 51, 1901. [Ind.] Murphy v. State, 120 Ind. 115, 22 N. EH. 106, 1889. [Ky.] Webb v. Com. 30 Ky. L. Rep. 841, 99 S. W. 909, 1907. [Minn.] State v. Erickson, 81 Minn. 133, 83 N. W. 512, 1900. [Mo.] State v. Skill- man, 228 Mo, 434, 128 S. W. 729, 1910. [N. C.] State v. Johnson, 100 N. C. 494, 6 S. E. 61, 1888. [S. C.] State v. Haddon, 49 8S. C. 308, 27 S. E. 194, 1897. [Wash.] State v. Falsetta, 43 Wash. 159, 86 Pac. 168, 10 A. & E. Ann. Cas. 177, 1906. Age of victim need not be stated in indictment. Cheek v. State, 171 § 721] RAPE. 901 she consented to the act of sexual intercourse, her age must be alleged.* Some cases hold the indictment must allege she is over ten years of age, unless it shows on its face that the accused is not charged with rape proper.’ To obviate the necessity of proving want of consent, it is merely requisite to allege and prove that the female was, at the time of the commission of the act complained of, under the statutory age of consent.® Nonmarriage of prosecutrix and accused need not be alleged in an indictment charging the “unlawful and felonious knowl- edge and abuse” of a female under the statutory age.” The words “forcibly” and “ravished,” in an indictment for a crime under these statutes, is surplusage.® VII. Evivence; Parry Acerrevep as WIrTNEss. § 721. Burden of proof. In a prosecution for rape the burden is on the prosecution to show beyond the reasonable doubt the existence of all the elements in the act of sexual inter- course to constitute rape at common law or under the statute defining and punishing the crime; such as that the act was perpetrated by force,’ fear,® Ind. 98, 85 N. E. 779, 1908; State v. Knighten, 39 Or. 63, 87 Am. St. Rep. 647, 64 Pac. 866, 1901. Age of victim not alleged, defend- ant can be convicted of the lesser of- fense, only. State v. Erickson, 81 Minn. 134, 83 N. W. 512, 1900. —Sufficiency of indictment.—In- formation charging defendant with rape of female, to wit: “of the age of fourteen years and upwards,”—held sufficient as to the meaning of the language employed. State v. Jones, 382 Mont. 442, 80 Pac. 1095, 1905. 4State v. Johnson, 100 N. C. 494, 6 S. E. 61, 1888. 5 Oakley v. State, 135 Ala. 15, 33 So. 23, 1902. See Sims v. State, 146 Ala. 109, 41 So. 413, 1906. 6 Bonner v. State, 65 Miss. 293, 3 So. 663, 1887. That victim has not reached physical puberty need not be alleged or proved, where the proof is that she was at the time under the age of or fraud,® and was against the consent. State v. Wright, 25 Neb. 38, 40 N. W. 596, 1888. 7 Curtis v. State, 89 Ark. 394, 117 S. W. 521, 1909; Com. v. Landis, 129 Ky. 445, 112 S. W. 581, 1908. Failure to allege prosecutrix was not the wife of the accused makes indictment fatally defective in prose- cution for rape by force; and the de- fect is not cured by allegation that defendant “violently did ‘ravish’ and earnally know” the prosecutrix. Peo- ple v. Miles, 9 Cal. App. 312, 101 Pac. 525, 1909. And the same rule applies to an information for assault with intent to commit rape. People v. Everett, 10 Cal. App. 13, 101 Pac. 528, 1909. 8 McQueary v. People, 48 Colo. 214, 110 Pac. 210, 21 A. & E. Ann. Cas. 560, 1910; Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217, 1908. 1See supra, § 681; People v. Page, 162 N. Y. 272, 56 N. E. 750, 1900. 2See supra, § 700. 8 See supra, § 702. 902 CRIMINAL LAW. {§ 721 woman’s consent, either express or implied,* and the like. The prosecution must also show the accused to be over the age under which the statute presumes incapacity on his part to commit the crime;° and where the female is under the age of consent that fact must be alleged and proved.® § 722. Prosecutrix as witness. The party aggrieved is always competent as a witness for the prosecution,’ and in a case of an indictment against B, a husband, for assisting another man in ravishing B’s wife, she was admitted as a witness against the husband.* If the witness be of good character; if she pres: ently discovered the offense, and made search for the offender; if the party accused fled® for it, these and the like are concur- ring circumstances, which give greater probability to her evi- dence.* But on the other side, if she be of evil fame, and stand unsupported by the testimony of others; if she concealed the injury for any considerable time after she had opportunity 4[Ala.] McQuirk v. State, 84 Ala. 485, 5 Am. St. Rep. 381, 7 So. 775, 1887. [Del.] State v. Smith, 9 Houst. (Del.) 588, 33 Atl. 441, 1892. [Ga.] Wesley v. State, 65 Ga. 731, 1880. [Tex.] Rodriguiz v. State, 20 Tex. App. 542, 1886. See supra, §§ 699 et seq. 5 See supra, §§ 686 et seq. Burden on defendant setting up want of age. State v. McNair, 93 N. C. 628, 1885. 6 See supra, §§ 709 et seq. * Wharton, Crim. Ev. §§ 393, 394. As to capacity as witness of female mentally unable to consent. See note in 9 A. & E. Ann. Cas. 1218. Evidence of two acts of rape to prosecutrix on different days is in- admissible. Parkinson v. People, 135 Til. 401, 10 L.R.A. 91, 25 N. E. 764, 1890. This is founded upon the well- established rule that “upon the trial of a party for one offense growing out of a specific transaction, you cannot prove a similar subsequent offense founded upon another and separate transaction. In such cases the prosecution will be required to elect.” Baker v. People, 105 Ill. 452, 1883; Parkinson v. People, 135 Ill. 401, 10 L.R.A. 91, 25 N. E. 764, 1890. Not one but several distinct of- fenses are committed where several men take a woman and each rape her, then removing her to a place 500 feet away again rape her, and then moving her back to the first place rape her yet again, the acts occurring within a period of about two hours. Vogel v. State, 138 Wis. 315, 119 N. W. 190, 1909. Testimony of prosecutrix involving evidence of offense to a _ second woman at the same time is still ad- missible. Parkinson v. People, 135 Il. 401, 10 L.R.A. 91, 25 N. E. 764, 1890. In New York her evidence must always be corroborated to convict. People v. Morris, 35 N. Y. S, R. 942, 12 N. Y. Supp. 492, 1890; People v. McKeon, 64 Hun, 504, 19 N. Y. Supp. 486, 1892; People v. Ter- williger, 74 Hun, 310, 26 N. Y. Supp. 674, 1893. -- to corroboration, see infra, § 723. 2 Lord Audley’s Case, Hutton, 115, 3 How. St. Tr. 419, 1 Hale, P. C. 630. 3 State v. Ralston, 139 Iowa, 44, 116 N. W. 1058, 1908. 4See Chambers v. People, 105 Ill. pa Eyler v. State, 71 Ind. 49, § 722] 903 RAPE. to complain; ® if the place where the fact was alleged to have been committed were such that it was possible she might have been heard, and she made no outcry, these and the like cireum- stances justify strong, but not conclusive, inferences that her testimony is false.® Duty of woman injured, under ordinary circumstances, or of her friends, to obtain prompt medical advice; and the omission to do so, in cases of alleged rape, is a fact which subjects the prosecution to discredit.” The corpus delicti includes violence done to the woman; and if this could be shown by proof aside from her testimony, and such proof be not produced, a conviction ought not to be per- mitted to stand. Such is the general rule at common law.® It is true that convictions have been sustained when resting exclu- sively on the testimony of a young child,® and of a woman who, at the time of the alleged act, was under the influence of ether;?° but these are dangerous precedents; and when cor- 5 See infra, § 726. 64 Bl. Com. 213; 3 Wharton & 8. Med. Jur. §§ 607 et seq. See [Colo.] Bueno v. People, 1 Colo. App. 232, 28 Pac. 248, 1891. [Mo.] State v. Wit- ten, 100 Mo. 525, 10 L.R.A. 371, 13 S. W. 871, 1890; State v. Patrick, — Mo. —, 15 S. W. 290, 1891, (see dissenting opinion also), and 107 Mo. 147, 17 S. W. 666, 1891. [Neb.] Johnson v. State, 27 Neb. 687, 43 N. W. 425, 1889. [N. Y.] People v. O’Sullivan, 104 N. Y. 481, 58 Am. Rep. 530, 10 N. E. 880, 1887; People v. Loftus, 34 N. Y. S. R. 525, 11 N. Y. Supp. 905, 1890. [Tex.] Rhea v. State, 30 Tex. App. 483, 17 S. W. 931, 1891; Thompson v. State, 33 Tex. Crim. Rep. 472, 26 5S. W. 987, 1894. Evidence held insufficient because of improbability of prosecutrix’s story, in State v. Sells, 145 Iowa, 675, 124 N. W. 776, 1910. 7 State v. Hagerman, 47 Iowa, 151, 1877; People v. Hulse, 3 Hill, 309, 1842. See supra, § 697. 81 Hale, P. C. 628, 681; 1 Hawk. P. C. chap. 41, § 2; State v. Patrick, 107 Mo. 147, 17 S. W. 666, 1891, also — Mo. —, 15 S. W. 290, 1891. Where prosecutrix did not disclose the offense till interrogated, and con- tinued her intercourse with defend- ant after the act, this was held to preclude conviction. Whitney v. State, 35 Ind. 503, 1871; see 4 BI. Com, 218; Cro. Car. 485. Corpus delicti is clearly proved, a verdict of guilty will not be dis- turbed, the defense being an_ alibi. Ackerson v. People, 124 Ill. 568, 16 N. E. 847, 1888. As to necessity of corroboration of prosecution see infra, 723. 9[Cal.] People v. Wessel, 98 Cal. 352, 33 Pac. 216, 1893. [Conn.] State v. Lattin, 29 Conn. 389, 1860. [Ky.] Lynn y. Com. 11 Ky. L. Rep. 772, 18 S. W. 74, 1890. [Mo.] State v. Wil- cox, 111 Mo. 569, 33 Am. St. Rep. 551, 20 S. W. 314, 1892; State v. Dusenberry, 112 Mo. 277, 20 S. W. 461, 1892. See 1 Russell, Crimes, by Greaves, 695. 10 Com. v. Beale, Phila. (Pa.) Q. S. 1854, 8 Wharton & S. Med. Jur. §§ 245, 596. 904 CRIMINAL LAW. [§ 722 roborative testimony can be procured, its nonproduction should tell seriously against the prosecution.” § 723. Corroboration. The general rule of law is that, in order to sustain a conviction of rape, the testimony of the prose- cutrix must be corroborated as to the principal facts,’ at least 11 Supra, 697; and see [Ill] Barney v. People, 22 Ill. 160, 1859. [Iowa] State v. Cassidy, 85 Iowa, 145, 52 N. W. 1, 1892; State v. Pilk- ington, 92 Iowa, 92, 60 N. W. 502, 1894. [Minn.] State v. Connelly, 57 Minn. 482, 59 N. W. 479, 1894. [Tex.] Rhea v. State, 30 Tex. App. 483, 17 S. W. 931, 1891. Rape and _ seduction — Berner’s view.—Berner, 9th ed. p. 430, re- marks, that although rape involves a brutal oblivion of human rights, and a fearful destiny to the injured woman, there are sometimes palliat- ing circumstances to be kept in mind. The offense is usually committed under the influence of stimulants; temptation and crime are coincident; and the reports of prison inspectors tell us that with men convicted of rape the criminal intent is far less persistent and obdurate that it is with fashionable seducers, whose profession it is to betray female in- nocence, whose desires are focalized to this object, which they continu- ously pursue. We are not, so we must conclude, to punish rape the Jess, but seduction the more. 1{Iowa] State v. Hetland, 141 Towa, 524, 19 N. W. 961, 18 A. & E. Ann. Cas. 899, 1909. [Neb.] Fitz- gerald v. State, 78 Neb. 1, 110 N. W. 676, 1907; Mott v. State, 83 Neb. 226, 119 N. W. 461, 1909. [N. Y.] People v. Farina, 134 App. Div. 110, 118 N. Y. Supp. 817, 1909; People v. Bills, 129 App. Div. 798, 114 N. Y. Supp. 587, 1909. [Wash.] State v. Crouch, 60 Wash. 450, 111 Pac. 562, 1910. [Wis.] Donovan v. State, 140 Wis. 570, 122 N. W. 1022, 1909. See also other cases in next foot- note. Compare: Contrary authorities in footnote 5, this section. As to necessity and sufficiency of corroboration, see note in 6 A. & E. Ann. Cas. 771. If defendant directly and positive- ly denies the charge, the prosecutrix must be corroborated by facts and circumstances established by other competent evidence, in order to sus- tain a conviction. Mott v. State, 83 Neb. 226, 119 N. W. 461, 1909; Henderson v. State, 85 Neb. 444, 26 L.R.A.(N.S.) 1149, 123 N. W. 459, 1909. Under New York Penal Code con- viction cannot be had on unsupported testimony of prosecuting witness. People v. Bills, 129 App. Div. 798, 114 N. Y. Supp. 587, 1909. Prosecutrix, being feeble minded, and her story improbable and almost incredible, the testimony must be corroborated. Donovan v. State, 140 Wis. 570, 122 N. W. 1022, 1909. Where statute so provides, it is an error to refuse to instruct the jury that the uncorroborated testimony of the prosecutrix is not sufficient to support a conviction. State v. Crouch, 60 Wash. 450, 111 Pac. 562, testimony of the prosecutrix in con- 1910. As to whether evidence of prose- cutrix should be ignored where im- probable, and contradicted by col- lateral facts, is a question for the trial court and the jury. State v. Wilcox, 111 Mo. 569, 33 Am. St. Rep. 551, 20 S. W. 314, 1892. Testimony of prosecutrix being given in such « hesitating manner as to create distrust of its truth, and bearing on its face evidence of un- reliability, corroboration by other evidence as to the principal facts of the crime is essential before con- viction can be had. O’Boyle v. State, 100 Wis. 296, 75 N. W. 989, 1898. Facts of the crime having been committed being established by the testimony of the prcsecutrix, cor- roborate evidence, direst or cireum- to strengthen and corroborate the stantial, is sufficient where it tends § 723] as to the circumstances of the case.® RAPE, 905 The commission of the crime may be proved by the testimony of the complainant alone, necting accused with the commis- sion. State v. Ralston, 139 Iowa, 44, 116 N. W. 1058, 1908. Evidence of prosecutrix as to previous chastity need not be cor- roborated. Leedom v. State, 81 Neb. 585, 116 N. W. 496, 1908. Great force being necessary ele- ment on account of age of victim, there must be corroborative evidence of torn clothing, bruised limbs, and outcry, which requisite does not exist when victim is under age of consent. McQueary v. People, 48 Colo. 214, 110 Pac. 210, 21 A. & E. Ann. Cas. 560, 1910. 21 Hale, P. C. 628, 631; 1 Hawk. P. C. chap. 41, § 2. [Eng.] Rex v. Gammon, 5 Car. & P. 321, 1832. [Ala.] Smith v. State, 47 Ala. 540, 1872; Bray v. State, 131 Ala. 46, 31 So, 107, 1901; Oakley v. State, 135 Ala. 15, 33 So. 23, 1902; Posey v. State, 143 Ala. 54, 38 So. 1019, 1905. [Ariz.] Territory v. Kirby, 3 Ariz. 288, 28 Pac. 1134, 1891. [Ark.] Pleasant v. State, 15 Ark. 624, 1855; Williams v. State, 66 Ark. 264, 50 S. W. 517, 1899. [Cal] People v. Mayes, 66 Cal. 597, 56 Am. Rep. 126, 6 Pac. 691, 1885; People v. Tierney, 67 Cal. 54, 7 Pac. 37, 1885; People v. Wilmot, 139 Cal. 108, 72 Pac. 838, 1903; People v. Howard, 143 Cal. 316, 76 Pac. 1116, 1904; People v. Scalamiero, 143 Cal. 343, 76 Pac. 1098, 1904. [Colo.] Donaldson v. People, 33 Colo. 333, 80 Pac. 906, 1905. [Conn.] State v. Lattin, 29 Conn. 389, 1860. [Fla.] Ellis v. State, 25 Fla. 702, 6 So. 768, 1889; Doyle v. State, 39 Fla. 155, 63 Am. St. Rep. 159, 22 So. 272, 1897. [Ga.] Stephen v. State, 11 Ga. 225, 1852; Lowe v. State, 97 Ga. 792, 25 S. E. 676, 1895. [Idaho] State v. Baker, 6 Idaho, 496, 56 Pac. 81, 1899. [Ill] Bean v. People, 124 Ill. 576, 16 N. E. 656, 1888; Stevens v. People, 158 Ill. 111, 41 N. E. 856, 1895. [Ind.] Weldon v. State, 32 Ind. 81, 1869; Thompson v. State, 38 Ind. 39, 1871. [Iowa] State v. Richards, 33 Iowa, 420, 1871; State v. Clark, 69 Iowa, 294, 28 N. W. 606, 1886; State v. Johnson, 133 Iowa, 38, 110 N. W. 170, 1907; State v. Stevens, 133 Iowa, 684, 110 N. W. 1037, 1907; State v. McCausland, 137 Iowa, 354, 113 N. W. 852, 1909; State v. Het- land, 141 Iowa, 524, 119 N. W. 961, 18 A. & E. Ann. Cas. 899, 1909; State v. Ralston, 139 Iowa, 44, 116 N. W. 1058, 1908; State v. Herring- ton, 147 Iowa, 6386, 126 N. W. 772, 1910. [Kan.] State v. Daugherty, 63 Kan. 473, 65 Pac. 695, 1901. [Ky.] Douglas v. Com. 24 Ky. L. Rep. 562, 68 S. W. 1107, 1902. [La.] State v. Robertson, 38 La. Ann. 618, 58 Am. Rep. 201, 1886; State v. Langford, 45 La, Ann. 1177, 40 Am. St. Rep. 277, 14 So. 181, 1898; State v. McCoy, 109 La. 682, 33 So. 730, 1903. [Md.] Parker v. State, 67 Md. 329, 1 Am. St. Rep. 387, 10 Atl. 219, 1887; Legore v. State, 87 Md. 735, 41 Atl. 60, 1898. [Mich.] People v. Marrs, 125 Mich. 376, 84 N. W. 284, 1900. [Minn.] State v. Shettleworth, 18 Minn. 208, Gil. 191, 1871. [Miss.] Ashford v. State, 81 Miss. 414, 33 So. 174, 1902; Anderson v. State, 82 Miss. 784, 35 So. 202, 1903; Dickey v. State, 86 Miss. 525, 38 So. 776, 1905. [Mo.? State v. Jones, 61 Mo. 232, 1875; State v. Patrick, 107 Mo. 147, 17 S. W. 666, 1891; State v. Marcks, 140 Mo. 656, 41 S. W. 973, 43 S. W. 1095, 1897; State v. Harris, 150 Mo. 56, 51 S. W. 481, 1899. [Neb.] Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366, 9 N. W. 38, 1881; Wood v. State, 46 Neb. 58, 64 N. W. 355, 1895; Maxfield v. State, 54 Neb. 44, 74 N. W. 401, 1903; Welsh v. State, 60 Neb. 101, 82 N. W. 368, 1900; Fitzgerald v. State, 78 Neb. 1, 110 N. W. 676, 1907; Henderson v. State, 85 Neb. 444, 26 L.R.A.(N.S.) 1149, 123 N. W. 459, 1909; Hanks v. State, 88 Neb. 464, 129 N. W. 1011, 89 Neb. 203, 130 N. W. 1037, 1911. [Nev.] State v. Campbell, 20 Nev. 122, 17 Pac. 620, 1888. [N. J.] State v. Ivins, 36 N. J. L: 233, 1873. [N. Y.] People v. Clemons, 37 Hun, 580, 1885; People v. Batterson, 18 N. Y. S. R. 845, 2 N. Y. Supp. 376, 1888; People v. Farina, 134 App. Div. 110, 118 N. Y. Supp. 817, 1909. 906 CRIMINAL LAW. [§ 723 and if corroborating evidence tend to connect defendant with its commission, it is sufficient.® [N. C.] State v. Stines, 138 N. C. 686, 50 S. E. 851, 1905. [Okla.] Hannon v. Territory, 5 Okla. 368, 49 Pac. 55, 1897; Brenton v. Terri- tory, 15 Okla. 6, 78 Pac. 83, 6 A. & E. Ann. Cas. 769, 1904. [Or.] State v. Sargent, 32 Or. 110, 49 Pac. 889, 1897. [Tex.] Pefferling v. State, 40 Tex. 486, 1874; Gazley v. State, 17 Tex. App. 267, 1884; Holst v. State, 23 Tex. App. 1, 59 Am. Rep. 770, 3 S. W. 757, 1887; Caudle v. State, 34 Tex. Crim. Rep. 26, 28 S. W. 810, 1894; Reddick v. State, 35 Tex. Crim. Rep. 463, 60 Am. St. Rep. 56, 34 S. W. 274, 1896; Cox v. State, — Tex. Crim. Rep. —, 44 8S. W. 157, 1898. [Utah] State v. Neel, 21 Utah, 151, 60 Pac. 510, 1900. [Vt.] State v. Niles, 47 Vt. 82, 1 Am. Crim. Rep. 646, 1874; State v. Carroll, 67 Vt. 477, 32 Atl. 235, 1895. [Wash.] State v. Hunter, 18 Wash. 670, 52 Pac. 247, 1898; State v. Morrow, 63 Wash. 297, 115 Pac. 161, 1911; State v. Gibson, — Wash. —, 116 Pac. 872, 1911. [Wis.] Hannon v. State, 70 Wis. 448, 36 N. W. 1, 1888; Lee v. State, 74 Wis. 45, 41 N. W. 960, 1889; O’Boyle v. State, 100 Wis. 296, 75 N. W. 989, 1893; Bannen v. State, 115 Wis.: 317, 329, 91 N. W. 107, 965, 1902. Contra: see cases footnote 5, this section. Failure to produce corroborating circumstances, where able to do so, will seriously weaken the strength of the prosecution’s case and the credibility of the testimony of prose- eutrix. [Ill.] Barney v. People, 22 Til. 160, 1859. [Iowa] State v. Cross, 12 Iowa, 66, 79 Am. Dec. 519, 1861. {Tex.] Gazley v. State, 17 Tex. App. 267, 1884. See notes in 79 Am. Dec. 528, and 65 Am. Dec. 509. —In Alabama credibility of prose- eutrix’s testimony in such case is for a jury. Boddie v. State, 52 Ala. 395, 1875. —In California the supreme court hag held that no rape case should ever go to the jury on the sole testi- mony of the prosecutrix, unsustained But there can be no conviction by facts and circumstances, without the court warning them of the dan- ger of conviction on such testimony. People v. Benson, 6 Cal. 221, 65 Am. Dec. 506, 1856; People v. Hamilton, 46 Cal. 540, 1873; People v. Ardaga, 51 Cal. 371, 2 Am. Crim. Rep. 590, 1876; People v. Castro, 60 Cal. 118, 1882; Lind v. Closs, 88 Cal. 6, 25 Pac. 972, 1891 (applying rule in civil case by husband). —In Iowa, under the statute, there can be no conviction on the sole testimony of the prosecutrix. State v. McLaughlin, 44 Iowa, 82, 1876. —In Nebraska, See Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366, 9 N. W. 38, 1881; Mathews v. State, 19 Neb. 334, 27 N. W. 234, 1886. —In Nevada, See State v. Depois- ter, 21 Nev. 107, 25 Pac. 1000, 1891. —In Texas a prosecution for rape should never be permitted to go to the jury on the uncorroborated testi- mony of prosecutrix, without the court warning them of the danger of conviction on such testimony, al- though under the rule in that state the credibility of prosecutrix’s evi- dence must be left to the jury, to be determined according to the cir- cumstances of the case. See Gazley v. State, 17 Tex. App. 267, 1884. 3 State v. Bartlett, 127 Iowa, 689, 104 N. W. 285, 1905; State v. Wa- ters, 182 Iowa, 481, 109 N. W. 1013, 1906; State v. Ralston, 139 Iowa, 44, 116 N. W. 1058, 1909; Allen v. State, — Miss. —, 45 So. 833, 1908. Corroboration necessary to connect defendant witn the commission of the crime, only; the fact that crime charged has been committed by someone being established by testi- mony of prosecutrix alone. State v. Bartlett, 127 Iowa, 689, 104 N. W. 285, 1905. Perpetration of crime being estab- lished, evidence tending to identify defendant as the perpetrator is ad- missible as corroborative evidence. State v. Waters, 182 Iowa, 481, 109 N. W. 1013, 1906, § 723] RAPE. 907 based upon contradictory testimony of the prosecutrix as to whether or not there was any penetration.* Conviction upon uncorroborated testimony of prosecutrix, if there is no statutory provision to the contrary, is the rule in some. states; but where this rule prevails, such testimony should be most clear and convincing.® 4[Miss.] Allen v. State, — Miss. —, 45 So. 833, 1908. [Mo.] State v. Forshee, 199 Mo. 142, 97 S. W. 933, 1906. [Okla.] Vickers v. United States, 1 Okla. Crim. Rep. 452, 98 Pac. 467, 1908. Where conviction may otherwise be supported by the uncorroborated testimony of the prosecutrix, it can- not be where that testimony con- tains numerous and serious contra- dictions. Allen v. State, — Miss. —, 45 So. 833, 1908. 5 [Ala.] Herndon v. State, — Ala. App. —. 56 So. 85, 1811. [Ariz.] Trimble v. Territory, 8 Ariz. 273, 71 Pac. 932, 1903. [Cal.] People v. Corey, 8 Cal. App. 720, 97 Pac. 907, 1908. [Fla.] Doyle v. State, 39 Fla. 155, 63 Am. St. Rep. 159, 22 So. 272, 1897. [Ga.] Fields v. State, 2 Ga. App. 41, 58 8. E. 327, 1907; Parker v. State, 3 Ga. App. 336, 59 S. E. $23, 1907; Scott v. State, 3 Ga. App. 479, 60 S. E. 112, 1908; Rivers v. State, 8 Ga. App. 703, 70 S. E. 50, 1911. [Idaho] State v. Anderson, 6 Idaho, 706, 59 Pac. 180, 1899. [Ill.] Johnson v. People, 197 Ill. 48, 64 N. E. 286, 1902; People v. Freeman, 244 Tl. 590, 91 N. E. 708, 1910. [Kan.] State v. Brown, — Kan. —, 116 Pac. 508, 1911. [Ky.] Druin v. Com. — Ky. —, 124 S. W. 856, 1910. [Mont.] State v. Peres, 27 Mont. 358, 71 Pac. 162, 1908; State v. Jones, 32 Mont. 442, 80 Pac. 1095, 1905. [Miss.] Allen v. State, — Miss.—, 45 So. 833, 1908. [Mo.] State v. Day, 188 Mo. 359, 87 S. W. 465, 1905; State v. Welch, 191 Mo. 179, 89 S. W. 945, 4A. & E. Ann. Cas. 681, 1905; State v. Dilts, 191 Mo. 665, 90 S. W. 782, 1905; State v. Goodale, 210 Mo. 275, 109 S. W. 9, 1908; State v. Tevis, ‘234 Mo. 276, 136 S. W. 339, 1911. [N. D.] State v. Fujita, 20 N. D. 555, 129 N. W. 360, 1910. [Ohio] And where, under the law, con- State v. Tuttle, 67 Ohio St. 440, 93 Am. St. Rep. 689, 66 N. E. 524, 1903. [Okla.] Reeves v. Territory, 2 Okla. Crim. Rep. 351, 101 Pac. 1039, 1909; Brenton v. Territory, 15 Okla. 6, 78 Pac. 83, 6 A. & E. Ann. Cas. 769, 1904; Johnson v. State, 5 Okla. Crim. Rep. 1, 112 Pac. 760, 1911; Hast v. Territory, 5 Okla. Crim. Rep. 162, 114 Pac. 261, 1911. [Or.] State v. Knighten, 39 Or. 63, 87 Am. St. Rep. 647, 64 Pac. 866, 1901. [S. D.] State v. Rash, — S. D. 130 N. W. 91, 1911. [Tex.] Keith v. State, — Tex. Crim. Rep. —, 56 S. W. 628, 1900; Donley v. State, 44 Tex. Crim. Rep. 428, 71 8S. W. 958, 1903; Hill v. State, — Tex. Crim. Rep. —, 17 S. W. 808, 1903; Wallace v. State, 48 Tex. Crim. Rep. 548, 89 S. W. 827, 1905. [Utah] State v. Hilberg, 22 Utah, 27, 61 Pac. 215, 1900; State v. Hoben, 36 Utah, 186, 102 Pac. 1000, 1909. [Va.] Thomas v. Com. 106 Va. 855, 56 S. E. 705, 1907. [Wash.] State v. Fetterly, 38 Wash. 599, 74 Pac. 810, 1903; State v. Patchen, 37 Wash. 24, 79 Pac. 479, 1905; State v. Roller, 30 Wash. 692, 71 Pac. 718, 1903; State v. Conlin, 45 Wash. 478, 88 Pac. 932, 1907. [Wis.] Lanphere v. State, 114 Wis. 193, 89 N. W. 128, 1902; Brown v. State, 127 Wis. 193, 106 N. W. 536, 7 A. & E. Ann. Cas. 258, 1906. Vogel v. State, 138 Wis. 315, 119 N. W. 190, 1909. [Wyo.] Tway v. State, 7 Wyo. 74, 50 Pac. 188, 1897. Contra: See footnote 2, this sec- tion. Appellate courts will closely scru- tinize testimony upon which convic- tion obtained on evidence of prose- eutrix alone, and if it appears in- credible or unsubstantial will re- verse the judgment, State v. Good- ale, 210 Mo. 275, 109 S. W. 9, 1898 Accomplice: Prosecutrix is not un- CRIMINAL LAW. [§ 723 908 viction may be had on uncorroborated testimony of the com- plainant, the appellate court will closely scrutinize such testi- mony, and if it appears incredible and too unsubstantial, will reverse the judgment.® “Corroboration” means testimony as to some circumstantial fact or circumstance independent of the statement of the prose- eutrix,’ and may be by direct or circumstantial evidence.® Cor- roborative evidence must tend to connect the accused with the crime, and extend to every material fact necessary or essential to constitute the offense charged to be sufficient.? The question whether there has been any corroborating testimony is for the court;?° whether the corroboration is sufficient to warrant sonviction of the accused is a question for the jury.” Various things and circumstances shown in evidence may constitute sufficient corroboration to warrant the conviction of the accused on the unsupported testimony of the prosecutrix to the fact of the corpus delicti, some of which are: Acts of defendant may form strong corroborating evidence; such as prior acts within two months of the time laid in the indictment, as corroborative of the prosecutrix’s testimony ; der the rule requiring the testimony of an accomplice to be corroborated. See [Ohio] State v. Tuttle, 67 Ohio St. 440, 93 Am. St. Rep. 689, 66 N. E. 524, 1903. [Tex.] Donley v. State, 44 Tex. Crim. Rep. 428, 71 S. W. 958, 19038. [Utah] State v. Hilberg, 22 Utah, 27, 61 Pac. 215, 1900. Want of corroboration goes only to the weight of the evidence. Reeves v. Territory, 2 Okla. Crim. Rep. 351, 101 Pac. 1039, 1909. 6 State v. Goodale, 210 Mo. 275, 109 S. W. 9, 1908. 7State v. Stewart, 52 Wash. 61, 100 Pac. 153, 17 A. & E. Ann. Cas. 411, 1909. See 2 Words & Phrases, 1627. : As to corroboration see note in 5 A. & E. Ann. Cas. 313. 8State v. Stewart, 52 Wash. 61, 100 Pac. 158, 17 A. & E. Ann. Cas. 411, 1909. 9 People v. Farina, 134 App. Div. 110, 118 N. Y. Supp. 817, 1909. 10 State v. Bricker, 185 Iowa, 348, 112 N, W. 645, 1907; People v. Fa- rina, 184 App. Div. 110, 118 N. Y. Supp. 817, 1909. 11 State v. Bricker, 135 Iowa, 343, 112 N. W. 645, 1907; State v. Dud- ley, 147 Iowa, 645, 126 N. W. 812, 1910. Improbable evidence by prosecu- trix, who is contradicted on collateral facts, makes a question of fact for the trial court and jury. State v. Wilcox, 111 Mo. 569, 33 Am. St. Rep. 551, 20 S. W. 314, 1892. 12 Boyd v. State, 81 Ohio St. 239, 135 Am, St. Rep. 781, 90 N. E. 355, 18 A. & E. Ann. Cas. 441, 1909. Previous attempts may be shown, or that he had previously declared his intention to commit the offense, or had made an unsuccessful attempt- to do so. This fact may be shown by the testimony of the prosecutrix. “The evidence is not rendered in- competent because it comes from the complainant herself. It is not as valuable, or trustworthy, or impor- tant, as if it had come from other witnesses. It probably did not have § 723] RAPE. 909 advising his wife to induce the prosecutrix to leave the state,! or himself fleeing from the state when charged—or in antici- pation of being charged—with the perpetration of the crime.’* Admissions of accused may be sufficient corroboration of the testimony of the prosecutrix, when shown in evidence, to war- rant conviction on her testimony alone.” And proof of state- ments made by the accused, which can fairly be said to be ad- missions of guilt, or any fact tending to connect him with the offense, is sufficient corroboration.4* Thus, a denial by the ac- cused of the use of force raises the inference that he attempted to have intercourse, and is sufficient corroboration.” Association with and attentions paid to the prosecutrix by the a very important bearing with the jury, because unless they believed her evidence as to the principal of- fense they would not believe her evidence as to the prior attempt. But it may have had some tendency to corroborate her story as to the principal offense, and thus may have had some weight with the jury. But whether it was important or not, there is no rule which condemns it, and there is abundant authority to justify its reception.” People v. O’Sullivan, 104 N. Y. 481, 58 Am. Rep. 530, 10 N. E. 880, 1887, citing [Eng.] Reg. v. Chambers, 3 Cox, C. C. 92, 1848; Reg. v. Rearden, 4 Fost. & F. 76; Reg. v. Jones, 4 L. T. N.S. 154. [Ala.] Lawson v. State, 20 Ala. 65, 56 Am. Dec. 182, 1852. [Iowa] State v. Walters, 45 Iowa, 389, 1877. [Mass.] Com. v. Merriam, 14 Pick. 518, 25 Am. Dec. 420, 1838; Com. v. Lahey, 14 Gray, 91, 1859; Com. v. Nichols, 114 Mass. 285, 19 Am. Rep. 346, 1873. [Mich.] Strang v. People, 24 Mich. 1, 1871. [Neb.] State v. Way, 5 Neb. 283, 1877. [N. H.] State v. Wallace, 9 N. H. 515, 1838; State v. Marvin, 35 N. H. 22, 1857; State v. Knapp, 45 N. H. 148, 156, 1863. [Tenn.] Williams v. State, 8 Humph. 585, 1848. [Tex.] Sharp v. State, 15 Tex. App. 171, 1883, and Wharton, Crim. Ev. 35, 46, 49. 13 State v. Jonas, 48 Wash. 133, 92 Pac. 899, 1907. 14 Fleeing to avoid or retard prose- cution may be sufficient corrobora- tion. State v. Hetland, 141 Iowa, 524, 119 N. W. 961, 18 A. & E, Ann. Cas. 899, 1909. Where there is other corroborating evidence, the flight of the defendant may be considered an additional cor- roboration. State v. Ralston, 139 Towa, 44, 116 N. W. 1058, 19u8. 15 Admission of liberties taken by him with the prosecutrix, and of having committed acts which consti- tute rape, though they were not so understood by him, although the ad- mission was not specific as to the particular act complained of. State v. Jonas, 48 Wash. 133, 92 Pac. 899, 1907. Admission of the defendant that he was in the house, with his boots off, at the time of the commission of the offense, is some corroboration of the prosecutrix, and tends in some degree to connect him with the crime. State v. Dudley, 147 Iowa, 645, 126 N. W. 812, 1910. Admission of intercourse by ac- cused and written promise to pay specified sum of money for the in- jury to prosecutrix is sufficient cor- roboration. State v. McPursley, 144 Towa, 414, 121 N. W. 1081, 122 N. W. 930, 1909. 16State v. Sells, 145 Iowa, 675, 124 N. W. 776, 1910. 17 State v. Hetland, 141 Iowa, 524, 119 N. W. 961, 18 A. & E. Ann. Cas. 899, 1909. 910 CRIMINAL LAW. {§ 723 accused may be shown when in any way tending to corroborate her testimony as to the principal facts, such as that he stopped and conversed with her while passing through her room late at night, and that they were seen sitting close together at 11 o’clock at night,—as tending to corroborate the prosecutrix.” But evidence that the accused was frequently with the prosecu- trix is insufficient corroboration to warrant a conviction of rape.” While opportunity, alone, is not sufficient corrobora- tion, it is a material fact. Birth of a child, proved to have occurred within the period of gestation after the commission of the act complained of, tend- ing to corroborate the testimony of the prosecutrix, is admissible in evidence; *" but the birth of a child cannot be proved in cor- roboration, where it could not have been the result of intercourse on the day it was testified to have taken place.” Complaint by prosecutrix may undoubtedly be shown as cor- roborative of her testimony as to the main facts, although some of the cases hold that evidence of such complaint is not corroborative evidence; ** but such complaint, to be admissible in any event in corroboration, must be timely made.” Medical testimony as evidence to corroborate the prosecutrix as to particular acts constituting the offense is not necessary, 18 State v. Waters, 132 Iowa, 481, with other men. State v. McCool, 109 N. W. 1013, 1906. Female at house of accused under suspicious circumstances, prior to the offense charged, cannot be proved in corroboration of the testimony of the prosecutrix as to the principal facts, she testifying to no improper relation at the time. State v. Mc- Cool, 53 Wash. 487, 132 Am. St. Rep. 1089, 102 Pac. 422, 1909. 19 Fitzgerald v. State, 78 Neb. 1, 110 N. W. 676, 1907. 20 State v. Sells, 145 Iowa, 675, 124 N. W. 776, 1910. See People v. Cole, 134 App. Div. 759, 119 N. Y Supp. 259, 1909. See infra, § 729, footnote 3. 21State v. Blackburn, 136 Iowa, 743, 114 N. W. 531, 1907. Evidence of pregnancy is not suffi- cient corroboration, especially where it is shown prosecutrix associated 538 Wash. 487, 132 Am. St. Rep. 1089, 102 Pac. 422, 1909. 22 People v. Farina, 134 App. Div. 110, 118 N. Y. Supp. 817, 1909. Admissions of defendant as to prosecutrix’s condition when accused of causing it, under such circum- stances, cannot constitute corrobo- ration. People v. Farina, 134 App. Div. 110, 118 N. Y. Supp. 817, 1909. 23 See infra, § 726. 24See State v. Stewart, 52 Wash. 61, 100 Pac. 158, 17 A. & E, Ann. Cas. 411, 1909. 25In the absence of threats by accused deterring complainant, a com- plaint made six months after the act complained of is not timely, and is inadmissible in corroboration. State v. Griffin, 43 Wash. 591, 86 Pac. 951, 11 A. & E, Ann. Cas. 95, 1906. § 724] but of other material circumstances.” RAPE. 911 Testimony of a physi- cian to the fact that the prosecutrix is pregnant, and testimony by another witness to the fact of opportunity” on the part of the accused, does not constitute a corroboration of the prosecu- trix’s testimony as to the facts of the crime charged. § 724. —May be corroborated by her own statements. In prosecutions for rape, when the party injured is a witness, it is admissible to prove that she made complaint of the injury while it was recent;? but the particulars of her complaint have been held not to be evidence® except to corroborate her testi- mony when attacked.® 26 Hammond v. State, 39 Neb. 252, 58 N. W. 92, 1894. As to Iowa, see State v. Chapman, 88 Iowa, 254, 55 N. W. 489, 1893. 27 Opportunity, alone, is not suffi- cient. See footnote 20, this section. 28 People v. Cole, 134 App. Div 759, 119 N. Y. Supp. 259, 1909. 1 Wharton, Crim. Ev. § 273. [Eng.] Brazier’s Case, 1 East, P. C. 444, 1 Leach, C. L. 199; Rex v. Clarke, 2 Starkie, 241, 1819; Reg. v. Wood, 14 Cox. C. C. 46, 1877; Reg. v. Meg- son, 9 Car. & P. 420, 1840; Reg. v. Guttridge, 9 Car. & P. 471, 1840; Reg. v. Osborne, Car. & M. 622, 1842; Reg. v. Mercer, 6 Jur. 243, 1860; Reg. v. Walker, 2 Moody & R. 212, 1840. [Fed.] United States v. Snowden, 22 Wash. L. Rep. 74, 1893. [Ala.] Nugent v. State, 18 Ala. 521, 1850; Lacy v. State, 45 Ala. 80, 1871; Barnes v. State, 88 Ala. 204, 16 Am. St. Rep. 48, 7 So. 38, 1889. [Ga.] Stephen v. State, 11 Ga. 225, 1852; McMath v. State, 55 Ga. 303, 1875. [La.] State v. Langford, 45 La. Ann. 1177, 40 Am. St. Rep. 277, 14 So. 181, 1893. [Mo.] State v. Jones, 61 Mo. 232, 1875. [Neb.] Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366, 9 N. W. 38, 1881. [N. Y.] Baccio v. People, 41 N. Y. 265, 1869; People v. McGee, 1 Denio, 19, 1845; People v. Croucher, 2 Wheeler, C. C. 42, 1823. [Ohio] Johnson v. State, 17 Ohio, 593, 1848; Laughlin v. State, 18 Ohio, 99, 51 Am. Dec. 444, 1849; Burt v. State, 23 Ohio St. 894, 1872. [Vt.] State v. Niles, 47 Vt. 82, 1 Am. Crim. Rep. 646, 1874. And in any view, such statements When the complaint is involun- tary, proof of it is inadmissible. Parker v. State, 67 Md. 829, 1 Am. St. Rep. 387, 10 Atl. 219, 1887. Complaint when pregnant seven months after offense is admissible. Richards v. State, 36 Neb. 17, 53 N. W. 1027, 1893. Witness proving the complaint may be asked whether the prosecu- trix named the offender, but not what name she gave, see Reg. v. Os- borne, Car. & M. 622, 1842; R. v. Alexander, 2 Craw. & D. (Ir.) 126, 1841; R. v. McLean, 2 Craw. & D. (Ir.) 350, 1843; People v. McGee, 1 Denio, 19, 1845. See Wharton, Crim. Ev. § 492. As to complaint, generally, see in- fra, § 726. 2Ibid. See also [Ariz.] Territory v. Kirby, 3 Ariz. 288, 28 Pac. 1134, 1891. [Cal.] People v. Stewart, 97 Cal. 238, 32 Pac. 8, 1893. [La.] State v. Gruso, 28 La. Ann. 952, 1876. [Mo.] State v. Jones, 61 Mo. 232, 1875. [N. H.] State v. Knapp, 45 N. H. 148, 1864. [N. J.] State v. Ivins, 36 N. J. L. 238, 1873. [Tex.] Pefferling v. State, 40 Tex. 486, 1874; Caudle v. State, 34 Tex. Crim. Rep. 26, 28 S. W. 810, 1894. [Vt.] State v. Bedard, 65 Vt. 278, 26 Atl. 719, 1892. 3 [Ark.] Pleasant v. State, 15 Ark. 624, 1855. [La.] State v. Langford, 45 La. Ann. 1177, 40 Am. St. Rep. 277, 14 So. 181, 1893. [Tex.] John- son v. State, 21 Tex. App. 368, 17 S. W. 252, 1886. Contra: [Dak.] Territory v. God- 912 CRIMINAL LAW. [§. 724 cannot be received as independent evidence to show who com- mitted the offense. They are admitted simply as part of the proof of the corpus delicti,* and in this view the reply, as well as the statement, when the two cannot be severed, is received.® Delay, when accounted for, does not exclude such statements,® frey, 6 Dak. 46, 50 N. W. 481, 1888, [Tenn.] Phillips v. State, 9 Humph. 246, 49 Am. Dec. 709, 1848. [Tex.] Lights v. State, 21 Tex. App. 308, 17 S. W. 428, 1886; Rhea v. State, 30 Tex. App. 483, 17 S. W. 931, 1891 (where greater latitude is allowed). Corroboration of prosecutrix—Aft- er cross-examination—In State v. De Wolf, 8 Conn. 93, 20 Am. Dec. 90, 1830, after an attempt to discredit her story on cross-examination, it was held admissible, as part of the evidence in chief, to corroborate her by proving she told the story in the same way, after the event; S. P., State v. Laxton, 78 N. C. 564, 1877; and see Conkey v. People, 5 Park. Crim. Rep. 31, 1860, where the rule was extended, under peculiar cir- cumstances, to the husband’s decla- rations. —In State v. Kinney, 44 Conn. 153, 26 Am. Rep. 436, 1876, affirming State v. De Wolf, 8 Conn. 93, 20 Am. Dec. 90, 1830; State v. Byrne, 47 Conn. 465, 1878. In Michigan and Ohio the prosecu- tion is permitted to give details of what the prosecutrix said immediate- ly after the event. Brown v. People, 36 Mich. 203, 2 Am. Crim. Rep. 586, 1872. Johnson v. State, 17 Ohio, 593, 1848; Burt v. State, 23 Ohio St. 394, 1878. Complaint by prosecutrix.—In Reg v. Walker, 2 Moody & R. 212, 1840, Parke, B., said: “The sense of the thing certainly is that the jury should, in the first instance, know the nature of the complaint made by the prosecutrix, and all that she said; but for reasons which I never could understand, the usage has obtained that the prosecutrix’s counsel should only inquire generally whether a complaint was made by the prosecutrix of the prisoner’s con- duct to her, leaving the counsel of the latter to bring before the jury the particulars of the complaint by cross-examination.” —In Roscoe’s Crim. Ev. p. 26, the following distinction is made: “It thus appears that these cases are unanimous, that where the person who makes the complaint is called as a witness, and is competent, the fact that the complaint was made, and the bare nature of it, may be given in evidence. Where the person who makes the.complaint is not called as a witness, or, on being called, is found to be incompetent, the deci- sions are somewhat conflicting. On the one hand, it has been sought in this case to introduce the whole statement; on the other, attempts have been made to exclude, under these circumstances, all evidence about the statement whatever. Both contentions have some countenance of authority, but it is conceived that neither is strictly accurate; the true rule being, as is submitted, to admit evidence of the fact of complaint in all cases, and in no case to admit anything more. The evidence, when restricted to this extent, is not hear- say, but, in the strictest sense, orig- inal evidence; when, however, these limits are exceeded, it becomes hear- say in a very objectionable form. There is every reason therefore, why it should be admitted to the extent indicated, and none why it should be admitted any further.” See Peo- ple v. Graham, 21 Cal. 261, 1862; and see Wharton, Crim. Ev. § 492. —In Reg. v. Wood, 14 Cox, C. C. 46, 1877, the particulars of the com- plaint were received. Complaint by prosecutrix is fur- ther discussed infra, § 726. 4 Reg. v. Megson, 9 Car. & P. 420, 1840; People v. Flynn, 96 Mich. 276, 55 N. W. 834, 1893. 5 Reg. v. Eyre, 2 Fost. & F. 579, 1870. 6 United States v. Snowden, 22 § 725] . RAPE, 913 though when unaccounted for it throws suspicion on the case of the prosecution.” The prosecutrix may be cross-examined as to whether she had made any statements after the alleged as- sault.® § 725. —Such evidence is to be confined to corrobora- tion. Wash. L. Rep. 74, 1893. [Ill] Sut- ton v. People, 145 Ill. 279, 34 N. E. 420, 1893. [N. H.] State v. Knapp, 45 N. H. 149, 1863. [N. Y.] People v. Terwilliger, 9 N. Y. Crim. Rep. 73, 26 N. Y. Supp. 674, 1893. [N. C.] State v. Peter, 53 N. C. (8 Jones, L.) 19, 1860; State v. Marshall, 61 N. C. (Phill. L.) 49, 1866. [Vt.] State v. Niles, 47 Vt. 82, 1 Am. Crim. Rep. 646, 1874. Complaint of prosecutrix — Sub- stance of what said—In_ several American jurisdictions it has been said that “the substance of what the prosecutrix said,” or the “declara- tions” made by her immediately after the offense was committed, may be given in evidence, in the first instance, to corroborate her tes- timony. [Conn.] State v. De Wolf, 8 Conn. 93, 20 Am. Dec. 90, 1830, affirmed in State v. Kinney, 44 Conn. 153, 26 Am. Rep. 436, 1876. [La.] State v. Peter, 13 La. Ann. 232, 1859. [Ohio] McCombs v. State, 8 Ohio St. 643, 1858; Laughlin v. State, 18 Ohio, 99, 51 Am. Dec. 444, 1849. [Tenn.] Phillips v. State, 9 Humph. 246, 49 Am. Dec. 709, 1846. —Corroborating witnesses.—Where the prosecutrix, u servant, stated that she made almost immediate complaint to her mistress, and that on the next day a washerwoman washed her clothes, on which was blood; but neither the mistress nor the washerwoman was under recog- nizanece to give evidence, nor were their names on the back of the in- dictment, but they were at the assizes attending as witnesses for the pris- oner,—the judge directéd that both the mistress and the washerwoman should be called by the counsel for the prosecution, but said that he should allow the counsel for the prosecution every latitude in their Crim. L. Vol. I.—58. Since such evidence is admissible merely as corrobora- examination. Reg. v. Stroner, 1 Car. & K. 650. —Evidence of declarations, error when. Where, on an indictment for rape, the judge trying the case ad- mitted evidence of the declarations of the injured party immediately after the event, though she herself had not been brought as a witness, being at the time incapable of testi- fying, such admission was held error by the supreme court of New York. People v. McGee, 1 Denio, 19, 1845 (see Com. v. Sallager, 3 Clark [Pa.] 127, 1839); and such is the general rule. [Eng.] Reg. v. Nicholas, 2 Car, & K. 246, 1846, 2 Cox, C. C. 139; Reg. v. Guttridge, 9 Car. & P. 471, 1840. [Cal.] People v. Graham, 21 Cal. 261, 1862. [Iowa] State v. Emeigh, 18 Iowa, 122, 1865. Hence, when the prosecutrix is in- capable of testifying on account of her immature age, her statements made in the defendant’s absence, in answer to questions put to her by her parents immediately after the alleged act, are not admissible as independent evidence of the crime. Weldon v. State, 32 Ind. 81, 1870. 7[N. Y.] Higgins v. People, 58 N. Y. 377, 1874. [N. C.] State v. Peter, 53 N. C. (8 Jones, L.) 19, 1860. [Tex.] Topolanck v. State, 40 Tex. 160, 1874. Compare: [Me.] State v. Mulkern, 85 Me. 106, 26 Atl. 1017, 1892. [N. Y.] People v. O’Sullivan, 104 N. Y. 481, 58 Am. Rep. 530, 10 N. KE. 880, 1887. [Ohio] Dunn v. State, 45 Ohio St. 249, 12 N. E. 826, 1887,—to the effect that unless reasonable explanation be made for the delay, it is error to admit evidence of prosecutrix’s witness’s statements. 8 Maillet v. People, 42 Mich. 262, 3 .N. W. 854, 3 Am. Crim. Rep. 379, 1879. 914 CRIMINAL LAW. [§ 725 tion, it cannot be used to patch out the case of the prosecution by supplying new facts.’ Thus on a trial for rape, which came before the Virginia court of appeals, the main question was as to the identity of the prisoner. The female was examined, and although she swore positively that the prisoner was the person who committed the outrage upon her, she declined to give a description of him as at the time of the outrage. The common- wealth then introduced a witness to prove the particulars of the description of the person who committed the outrage, given by the prosecutrix to the witness on the morning after the rape was committed. This, for the reason just given, was properly held inadmissible.” § 726. —Complaint of prosecutrix. In a prosecution for rape, after the prosecutrix has testified to the main facts regarding the commission of the offense, the general rule (but not without exceptions in some jurisdictions) * is that it is com- petent to prove, in corroboration of her testimony, the fact that the prosecutrix, recently after the outrage,” made complaint to the person or persons to whom a statement of such an occur- rence would naturally be made,* together with the circumstances 1Scott v. State, 48 Ala. 420, 1872; State v. Shettleworth, 18 Minn. 208, Gil. 191, 1872. 2Brogy v. Com. 10 Gratt. 722, 1853. The admissibility of such declara- tions is not affected by the fact that on a prior occasion a rape had been committed by the defendant on the prosecutrix. Strang v. People, 24 Mich. 1, 1871. 1 Not corroborating evidence. State v. Stewart, 52 Wash. 61, 100 Pac. 153, 17 A. & E. Ann. Cas, 411, 1909. 2See footnotes 15 et seq., this section. | 8 [Eng.] Reg. v. Osborne, Car. & M. 622, 1842; Reg. v. Guttridge, 9 Car. & P. 471, 1840; Reg. v. Megson, 9 Car. & P. 418, 1840; Reg. v. Wood, 14 Cox, C. C. 46; Brazier’s Case, 1 East, P. C. 444, 1 Leach, C. L. 199. Reg. v. Walker, 2 Moody & R. 212; Reg. v. Mercer, 6 Jur. 248; Rex v. Clarke, 2 Starkie, 241. [Ala.] Nu- gent v. State, 18 Ala. 521, 1850; Lacy v. State, 45 Ala. 80, 1871; Griffin v. State, 76 Ala. 29, 1884. [Ark.] Sexton v. State, 91 Ark. 589. 121 S. W. 1075, 1909. [Conn.] State v. De Wolt, 8 Conn. 93, 20 Am. Dec. 90, 1830. [Ga.] Stephen v. State, 11 Ga, 225, 1852; McMath v. State, 55 Ga. 303, 1875; Huey v. State, 7 Ga. App. 398, 66 S. E. 1023, 1910. [Idaho] State v. Fowler, 13 Idaho, 317, 89 Pac. 757, 1907; State v. Neil, 13 Idaho, 539, 90 Pac. 860, 91 Pace. 315, 1907. [Ill.] People v. Wetson, 236 Ill. 104, 86 N. E. 188, 1908. [Iowa] State v. Symens, 138 Iowa, 113, 115 N. W. 878, 1908. [Kan.] State v. Hoskinson, 78 Kan. 183, 96 Pac. 138, 1908. [Md.] Parker v. State, 67 Md. 329, 1 Am. St. Rep. 3887, 10 Atl. 219, 1887. [Miss.] Hogan v. State, 46 Miss. 274, 1872. [Mo.] State v. Jones, 61 Mo. 232, 1875. [Neb.] Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366, 9 N. W. 38, 1881; Henderson v. State, 85 Neb, 444, 26 L.R.A.(N.S.) 1149, 123 N. W. 459, 1909. [N. Y.] Baccio v. People, 41 N. Y. 265, 1869; People v. McGee, 1 Denio, 19, 1845; People v. Clemons, 37 Hun, 586, 1885; People § 726] RAPE. 915 under which it was made,* where such complaint was made sea- sonably.® A part of the res geste® when occurring immediately after the accomplishment of the crime, and while the prosecutrix was under the influence of the excitement produced by the as- sault and the act, and as such are admissible,’ with all the details® and declaration as to identity® of the culprit; but the v. Croucher, 2 Wheeler, C. C. 42, 1800; People v. Friedman, 139 App. Div. 795, 124 N. Y. Supp. 521, 1910. [Ohio] Johnson v. State, 17 Ohio, 593, 1848; Laughlin v. State, 18 Ohio, 99, 51 Am. Dec. 444, 1849; Burt v. State, 23 Ohio St. 394, 1872. [Tenn.] Phillips v. State, 9 Humph. 246, 49 Am. Dec. 709, 1848. [Tex.] Adams v. State, 52 Tex. Crim. Rep. 13, 105 S. W. 197, 1907; Skaggs v. State, 88 Ark. 62, 113 S. W. 380, 16 A. & HK. Ann. Cas. 622, 1908. [Vt.] State v. Niles, 47 Vt. 82, 1 Am. Crim. Rep. 646, 1874. [Wash.] State v. Myrberg, 56 Wash. 384, 105 Pac. 622, 1909. As to whether the corroboration of prosecutrix necessary to the convic- tion of rape can be by her own com- plaints out of court, see notes in 38 Am, Rep. 369; 26 L.R.A.(N.S.) 1149; 2 A. & E. Ann. Cas. 234; and 11 A. & HE. Ann. Cas. 99. Discretion of court. Testimony that complaint was made to the person complainant would naturally confide in is admissible in the discre- tion of the court. State v. Hoskin- son, 78 Kan. 183, 96 Pac. 138, 1908. Evidence that complaint was made the day after the alleged commis- sion of the offense is admissible. Adams v. State, 52 Tex. Crim. Rep. 13, 105 S. W. 197, 1907. Purpose of admission—Evidence of complaint is not received as proof that the crime was in fact com- mitted, but only to rebut the infer- ence of consent from silence. Huey v. State, 7 Ga. App, 398, 66 S. E. 1023, 1910. 4State v. Fowler, 13 Idaho, 317, 89 Pac. 757, 1907. 5 State v. Myrberg, 56 Wash. 384, 105 Pac. 622, 1909. 6Greenleaf says: “The complaint constitutes no part of the res geste; it is only a fact corroborative of the testimony of the complainant; and where she is not a witness in the case, is wholly inadmissible.” 3 Green]. Ev. 2138. See also Phillipps, Ev. 233; 1 Russell, Crimes, 689; Roscoe, Crim. Ev. 26, note 1. See footnote 12, this section. Rule approved in a number of cases, among others, see [Eng.] Reg. v. Megson, 9 Car. & P. 418, 1840; People v. McGee, 1 Denio, 19; Reg. v. Walker, 2 Moody & R. 212; Rex v. Clarke, 2 Starkie, 241, 1817. [N. Y.] Baccio v. People, 41 N. Y. 265, 1869; People v. Hulse, 3 Hill, 316, 1842. [Tenn.] Phillips v. State, 9 Humph. 246, 40 Am. Dec. 709, 1843. [Tex.] Pefferling v. State, 40 Tex. 487, 1874. 7 [Iowa] McMurrin v. Rigby, 80 Iowa, 322,, 45 N. W. 877, 1890. [Mich.] Lambert v. People, 29 Mich. 71, 1874; People v. Gage, 62 Mich. 271, 4 Am. St. Rep. 854, 28 N. W. 835, 1886; People v. Brown, 53 Mich. 531, 19 N. W. 172, 1884; People v. Glover, 71 Mich. 308, 38 N. W. 874, 1888. [Tex.] Holst v. State, 23 Tex. App. 1, 59 Am. Rep. 770, 3 S. W. 757, 1887 (reprint omits point on rape). As to how near the main transac- tion must declaration by prosecutrix be made to constitute a part of the res geste, see generally 19 L.R.A. 735-752. 8 See footnotes 20 et seq., this sec- tion. 9See footnotes 24 and 25, this section. 916 CRIMINAL LAW. [§ 726 general rule is that the complaint or declaration of the prose- cutrix constitutes no part of the res gestw." A child of tender years, too young to be a witness, by reason of her inability to comprehend the nature and obligation of an oath, being the prosecutrix, her failure to testify will not ex- clude evidence of the fact that complaint was made by her, as part of the res geste; some of the cases hold that the com- plaint itself is admissible as a part of the res gestw.” Failure of a child old enough to appreciate the character of the act, to make complaint as soon as there is opportunity to do so, is a suspicious circumstance,” but the failure of a child of seven to make complaint may indicate no more than that she did not appreciate the fact that she had been raped. Delay in making complaint is always a suspicious circum- 103 Greenl. Ev. § 213. 11 People v. Bianchino, 5 Cal. App. 633, 91 Pac. 112, 1907; Kenney v. State, — Tex. Crim. Rep. —. 65 L.BR.A. 316, 79 8. W. 817, 1903. As to admissibility of declarations of girl too young to be sworn as a witness, see note in 65 L.R.A. 316. Imbecility of woman outraged, rendering her incompetent to be sworn as a witness; the declara- tions of such female, made shortly after the outrage, were held, under the rule, to be incompetent to prove the commission of the offense. Horn- beck v. State, 35 Ohio St. 277, 35 Am. Rep. 608, 1879. 12 People v. Gage, 62 Mich. 271, 4 Am. St. Rep. 854, 28 N. W. 835, 1886. Reason for the rule admitting the fact that complaints were made, and excluding the complaints themselves, is found, aside from their being hear- say, by those courts which do not treat it as part of the res gesta, in the danger of allowing a designing female to corroborate her testimony by statements made by herself to other persons; and the difficulty of disproving the principal fact when testified to by the accused is by some courts held as a reason that the evi- dence that complaints were made is not received merely as corroborative of the statement of the prosecutrix, but as part of the res geste, where they are made immediately after the outrage complained of. Lambert v. People, 29 Mich. 71, 1874; People v. Brown, 53 Mich. 531, 19 N. W. 172, 1884; People v. Gage, 62 Mich. 271, 4 Am. St. Rep. 854, 28 N. W. 835, 1886. As complaint made immediately after the occurrence constitutes part of the res geste, it would seem that not only the fact that complaint was made, but the complaint made, should be admitted. Besides the rea- son upon which the rule of exclusion is based, namely, the difficulty of disproving the accusation in those states where the accused is permit- ted to testify in his own behalf. People v. Gage, 62 Mich. 271, 4 Am. St. Rep. 854, 28 N. W. 835, 1886. 18 See footnotes 15 et seq., this section. 14 People v. Lutzow, 240 Ill. 612, 88 N. E. 1049, 1909; People v. Gage, 62 Mich. 271, 4 Am. St. Rep. 854, 28 N. W. 835, 1886. Child of tender years silenced, in consequence of fear of chastisement, induced by threats of the perpetrator of the wrong; the mother of the child may be permitted to detail the circumstances constituting the al- leged offense as related to her by the outraged girl. People v. Gage, 62 Mich. 271, 4 Am. St. Rep. 854, 28 N. W. 835, 1886. § 726] stance. RAPE. 917 The rule requires that the complaint shall be made within a reasonable time,’® to be admissible in corroboration of the testimony of the prosecutrix as to the principal facts,” or that an adequate excuse shall be given for the delay.” How- ever, the lapse of time occurring after the injury and before the 15 See supra, § 724, footnote 6. Failure to make complaint by the prosecutrix is not conclusive against conviction of the accused; but that fact may be considered by the jury in connection with all the other facts and circumstances surrounding and connected with the transaction, and in connection with other things, the age, intelligence, and experience of the female. Garvick v. Burlington, C. R. & N. R. Co. 131 Iowa, 415, 117 Am. St. Rep. 432, 108 N. W. 327, 1906. See State v. Cross, 12 Iowa, 66, 79 Am. Dec. 519, 1861. 16 Delay of ten days before com- plaint is made, with adequate ex- planation, renders the evidence ad- missible. Pettus v. State, 58 Tex. Crim. Rep. 546, 137 Am. St. Rep. 978, 126 S. W. 868, 1910. See also footnote 4, this section. Three weeks having elapsed after an alleged rape before complaint was made, evidence of such complaint is inadmissible. People v. Corey, 8 Cal. App. 720, 97 Pac. 907, 1908. Month and a half, complaint made on returning home, after the commis- sion of the act, is inadmissible. Peo- ple v. Gonzalez, 6 Cal. App. 255, 91 Pac. 1013, 1907. Where delay of six months from the time of the commission of the crime and eight months after a pre- vious felonious assault, and nearly a year and a half after accused first took liberties with the person of the. prosecutrix occurs before complaint made, such complaint is inadmissi- ble in corroboration. State v. Grif- fin, 48 Wash. 591, 86 Pac. 951, 11 A. & E. Ann. Cas. 95, 1906. Ten months after the completion of offense being time of first com- plaint, evidence of such complaint held inadmissible. People v. O’Sulli- van, 104 N. Y. 481, 58 Am. Rep. 530, 10 N. E. 880, 1887. More than a year after alleged offense was committed before com- plaint was made; evidence of such complaint is inadmissible. State v. Griffin, 43 Wash. 591, 86 Pa. 951, 11 A. & H, Ann. Cas. 95, 1906. 17 Delay of a week before making complaint, where testimony of prose- cutrix was to commission of the act under very suspicious circumstances throws grave doubt upon the act being rape; a conviction was not disturbed. Bailey v. Com. 82 Va. 107, 3 Am. St. Rep. 87, 1886. Complaint about “the first or mid- dle of March” of rape alleged to have taken place the last of February or the first of March is in seasonable time. State v. Myrberg, 56 Wash. 384, 105 Pac. 622, 1909. Expiration of two months be- tween date of offense and complaint does not render it too remote to be admissible. State v. Dudley, 147 Towa, 645, 126 N. W. 812, 1910. Not made for some time after, giving details to mother to effect that accused had done her very wrong, and circumstances and rea- sons for complaint, held admissible. Bader v. State, 57 Tex. Crim. Rep. 293, 122 S. W. 555, 1909. 18 [Mich.] People v. Gage, 62 Mich. 271, 4 Am. St. Rep. 854, 28 N. W. 835, 1886. [N. Y.] People v. O’Sulli- van, 104 N. Y. 481, 58 Am. Rep. 530, 10 N. KE. 880, 1887. [Ohio] Dunn vy. State, 45 Ohio St. 249, 12 N. E. 826, 1887. [Tex.] Salazer v. State, 55 Tex. Crim. Rep. 307, 116 S. W. 819, 1909; Pettus v. State, 58 Tex. Crim. Rep. 546, 137 Am, St. Rep. 978, 126 S. W. 868, 1910. [Wash.] State v. Griffin, 43 Wash. 591, 86 Pac. 951, 11 A. & E. Ann. Cas. 95, 1906. Declarations by a female child u- der ten years of age, alleged to have been carnally abused, made several days after the offense, are not ad- missible unless delay is excused by 918 CRIMINAL LAW. [§ 726 time when complaint is made is not the test of admissibility of the evidence, but it may be considered as affecting its weight; and when complaint is not made promptly, the delay calls for adequate explanation before the court will admit the evidence.” Details and circumstances of the complaints or declarations of the prosecutrix are not usually admissible in evidence,” un- proof of sufficient cause therefor. Dunn v. State, 45 Ohio St. 249, 12 N. E. 826, 1887. Fact that person injured was a girl of tender years and appears to have been under a sort of duress caused by fear of being severely whipped by the perpetrator of the offense, who had made a threat to do so in case she disclosed the act or told her parents, is a sufficient explanation of the delay to justify the court in admitting evidence of the complaint. People v. Gage, 62 Mich. 271, 4 Am. St. Rep. 854, 28 N. W. 835, 1886. Delay from 10 o’clock A. M. to dark before making a complaint by prosecutrix to her husband, who was in a field three quarters of a mile away, was properly allowed to be explained by testimony that the hus- band had told her not to come to the field alone. Salazer v. State, 55 Tex. Crim. Rep. 307, 116 S. W. 819, 1909. Delay of ten days before making complaint, where the accused was the stepfather of the husband of the prosecutrix, she testifying he had threatened to kill her and her hus- band if she made complaint, does not render evidence of the complaint in- admissible. Pettus v. State, 58 Tex. Crim. Rep. 546, 187 Am. St. Rep. 978, 126 S. W. 868, 1910. Complaints made a year after the alleged commission of the act, with no satisfactory reasons shown for the delay, are not sufficient as cor- roborating evidence. State v. Grif- fin, 43 Wash. 591, 86 Pac. 951, 11 A. & E. Ann. Cas. 95, 1906. Delay in making complaint may be explained by evidence of threats of certain things defendant’s wife would do if she told. Com. v. Rollo, 203 Mass. 354, 89 N. E. 556, 1909. 19 People v. Gage, 61 Mich. 721, 4 Am. St. Rep. 854, 28 N. W. 835, 1886. Delay of three years before mak- ing complaint should be considered in weighing the testimony of the prosecutrix. State v. Williams, 36 Utah, 273, 103 Pac. 250, 1909. 20 [Ala.] Gaines v. State, 167 Ala. 70, 52 So. 648, 1910. [Cal.] People v. Mayes, 66 Cal. 597, 56 Am. Rep. 126, 6 Pac. 691, 1885. [Idaho] State v. Fowler, 13 Idaho, 317, 89 Pac. 757, 1907. [La.] State v. Robertson, 38 La. Ann, 618, 58 Am. Rep. 201, 1886. [Md.] Parker v. State, 67 Md. 329, 1 Am. St. Rep. 387, 10 Atl. 219, 1887. [Miss.] Frost v. State, 94 Miss. 104, 47 So. 898, 1909. [Neb.] Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366, 9 N. W. 38, 1881. [N. Y.] People v. Friedman, 139 App. Div. 795, 124 N. Y. Supp. 521, 1910. [Tex.] Bader v. State, 57 Tex. Crim. Rep. 293, 122 S. W. 555, 1909. See note in 38 Am. Rep. 369. Compare: State v. Kinney, 44 Conn. 153, 26 Am. Rep. 436, 1876; Benstine v. State, 2 Lea, 169, 31 Am. Rep. 593, 8 Am. Crim. Rep. 386, 1879. Details of transaction cannot be proved by the complaint or declara- tions of the prosecutrix. Parker v. State, 67 Md. 329, 1 Am. St. Rep. 387, 10 Atl. 219, 1887. Details of complaint may be prov- en by witness where the complaint was made about the time of the of- fense. Benstine v. State, 2 Lea, 169, 31 Am. Rep. 593, 3 Am. Crim. Rep. 386, 1879. —Complainant may be confirmed by evidence she communicated her complaint to persons out of court about the time of the offense, and the details of such complaint may be giv- en by such witness. State v. Kinney, 44 Conn. 153, 26 Am. Rep. 486, 1876. citing as sustaining the same rule, § 726] RAPE, 919 less they are a part of the res geste,”! but the testimony is lim- ited to the fact that such complaints or declarations were made; but the fact of the complaints of the prosecutrix may be shown, and their nature, although to do so may involve to some extent the particulars of such complaint.” Identity of party guilty of the offense charged cannot be shown by proof of accusation of a particular individual by prosecutrix in her complaint made immediately after the oc- currence of the outrage complained of;** but it has been held that the prosecutrix may testify that she complained to her mother, stating that the accused had sexual intercourse with her against her will, and that the mother may testify to the same effect. Johnson v. State, 17 Ohio, 595, 1848; Laughlin v. State, 18 Ohio, 101, 51 Am. Dec. 444, 1849; McCombs v. State, 8 Ohio St. 646, 1858. Defendant may bring out the de- tails on cross-examination, or they may be brought out by the prosecu- tion if the defendant impeach the testimony of the prosecutrix. Sex- ton v. State, 91 Ark. 589, 121 8. W. 1075, 1909. Statement reduced to writing, pa- rol evidence of statement or declara- tion of prosecutrix is inadmissible; the writing being the best evidence. State v. De Wolf, 8 Conn. 93, 20 Am. Dec. 90, 1830. 21 See footnotes 6-10, this section, and text going with same. Fact of complaint made by prose- cutrix is admissible, but not the de- tails thereof, unless they are part of the res geste or corroborate the prosecutrix’s testimony when at- tacked. Skaggs v. State, 88 Ark. 62, 113 S. W. 346, 16 A. & E. Ann. Cas. 622, 1908. Fact of complaint may be proved, but not the details of it, unless it was so closely connected with the ‘commission of the act as to make it a part of the res geste. Henderson v. State, 85 Neb. 444, 26 L.R.A. (N.S.) 1149, 123 N. W. 459, 1909. Evidence of the particulars of a complaint by the prosecutrix—of the facts that go to make up the corpus delicti—is not admissible in the first instance unless the complaint is part of the res geste. It is only evidence of the fact that complaint was made that is admissible. Huey v. State, 7 Ga. App. 398, 66 S. E. 1023, 1910. 22 Gaines v. State, 167 Ala, 70, 52 So. 648, 1910; State v. Hoskinson, 78 Kan. 183, 96 Pac. 138, 1908. 23 State v. Symens, 138 Iowa, 113, 115 N. W. 878, 1908; Bader v. State, 57 Tex. Crim. Rep. 293, 122 S. W. 555, 1909. Evidence of details of prosecutrix’s complaint to her mother to effect accused had done her very wrong, and the circumstances and reasons for the complaint, which was not made for some time, are admissible. Bader v. State, 57 Tex. Crim. Rep. 293, 122 8. W. 555, 1909. 24 [Idaho] State v. Fowler, 13 Ida- ho, 317, 89 Pac. 757, 1907. . [I.] People v. Weston, 236 IIl. 107, 86 N. E. 188, 1908. [Wash.] State v. Griffin, 43 Wash. 591, 86 Pac. 951, 11 A. & E, Ann. Cas. 95, 1906. Declarations of prosecutrix, as to how she was treated, made upon her being rescued, are admissible, but not statements as to who were the of- fenders. People v. Weston, 236 II]. 104, 86 N. E. 188, 1908. 25 State v. Symens, 138 Iowa, 118, 115 N. W. 878, 1908. Details of prosecutrix’s complaint to her mother, to the effect that ac- cused had done her very wrong, and the circumstances and reasons for the 920 CRIMINAL LAW. [§ 726 Involuntary complaints of the female involved in the crime do not stand upon the same footing in an evidentiary capacity, as do voluntary complaints, and, if admissible at all, are not to be given the same weight."* Yet the mere fact that the com- plaint was made as a result of questions asked of the prosecu- trix does not necessarily deprive it of its character of a com- plaint, where all the requisite elements are present.”” § 727. —Condition of prosecutrix. The condition of prosecutrix, as well as the conditions where crime was com- mitted, may be shown in evidence in corroboration of her testi- mony.* complaint, held admissible in Bader v. State, 57 Tex. Crim. Rep. 293, 122 S. W. 555, 1909. 26 Statements to officers for pur- pose of formulating complaint for arrest of aefendant, not being spon- taneous expressions are not admis- sible. State v. Hoskinson, 78 Kan. 183, 96 Pac. 138, 1908. 27 State v. Dudley, 147 Iowa, 645, 126 N. W. 812, 1910. Answers that are involuntary in character should not be regarded as a complaint, but as a mere recital of what is claimed to have happened. State v. Dudley, 147 Iowa, 645, 126 N. W. 812, 1910. : 1[Ark.] Skaggs v. State, 88 Ark. 62, 113 S. W. 346, 16 A. & E. Ann. Cas. 622, 1908. [Iowa] State v. Dud- ley, 147 Iowa, 645, 126 N. W. 812, 1910. [Del.] Sigerella-v. State, — Del. —, 74 Atl. 1081, 1910; State v. Colombo, — Del. —, 75 Atl. 616, 1909. See also supra, § 719, footnote 14. Prosecutrix’s physical condition after the offense is corroborative evi- dence. [Cal.] People v. Stewart, 97 Cal. 238, 32 Pac. 8, 18938. [Iowa] State v. Sigg, 86 Iowa, 746, 53 N. W. 261, 1892. [Mo.] State v. Houx, 109 Mo, 654, 32 Am. St. Rep. 686, 19 S. W. 35, 1891; State v. Murphy, 118 Mo. 7, 25 S. W. 95, 1893; State v. Sandford, 124 Mo. 484, 27 8. W. 1099, 1894. [Tex.] Rodgers v. State, 30 Tex. App. 510, 17 8S. W. 1077, 1891. [Wis.] Proper v. State, 85 Wis. 615, 55 N. W. 1035, 1893. Admission of testimony of physi- cian that upon examination of prose- cutrix sixteen days after the alleged date of the rape he, on examination, found the prosecutrix afflicted with venereal chancroids appearing to be about twelve days old, for purpose of showing she had contracted a venereal disease from the defendant, is erroneous. People v. Ah Lean, 7 Cal. App. 626, 95 Pac. 380, 1908. Syphilis in the prosecutrix, testi- fied to by a physician, found on ex- amination made two months after alleged offense, 1s admissible, where it is claimed defendant infected her with that disease; but evidence of a physical examination of the defend- ant six months after the alleged date of the offense is too remote. State v. Colombo, — Del. —, 75 Atl. 616, 1909. Hymen = ruptured.—Evidence of physician, that he found the hymen of the prosecutrix ruptured upon an examination made two and one half months after the date of the alleged offense, is admissible. State v. Dud- ley, 147 Iowa, 645, 126 N. W. 812, 1910. Prosecutrix, eleven years old, tes- tified the act hurt her and made her bleed, and it appeared that she had had intercourse prior to that act. The testimony of a physician that, upon an examination made four months after the act, he found a sear on her private parts made after the prior acts of intercourse, and showing the condition of the parts § 730] RAPE. 921 § 728. —Nonmarriage of parties. The nonmarriage be- tween prosecutrix and the accused must be shown, but it need not be proved by positive testimony; it may be proved by cir- cumstances from which the conclusion may be drawn.’ But indirect evidence that accused and prosecutrix were not hus- band and wife is not sufficient where the state has abundant op- portunity to prove that fact directly.” § 729. —Pregnancy of prosecutrix. The fact of preg- nancy as the result of the intercourse is admissible, to be testi- fied to by prosecutrix;* but the birth of a child as a result of the intercourse is immaterial.? Testimony of physician that prosecutrix is pregnant, and evidence by another witness of op- portunity on part of defendant to commit the act, are not suffi- cient corroboration of the testimony of the prosecutrix to the main facts.* § 730. —Relations and interests of others. The facts regarding the relations and interest of certain persons in the prosecution may properly be shown as affecting the reliability and truthfulness of their testimony, and its weight and suffi- ciency in corroboration or rebuttal of the testimony of the prose- eutrix.! Thus the interest of the divorced wife and the brother four months after the act, was prop- erly admitted. Sigerella v. State, — Del. —, 74 Atl. 1081, 1910. 1Gent v. State, 57 Tex. Crim. Rep. 414, 123 S. W. 594, 1909; State v. May, 59 Wash. 414, 109 Pac. 1026, 1910. On question of whether prosecutrix was married, testimony that she was a school girl, fourteen years old, lived at home with her father and mother and bore her maiden name, was sufficient to send it to the jury. State v. May, 59 Wash. 414, 109 Pac. 1026, 1910. —Evidence prosecutrix was about fifteen years old; went by her own name; lived with her parents; that accused had intercourse with her; that she went to a certain place with him and his wife; and that he so- licited her to leave the state and live with him as his wife,—is sufficient to show that she was not his wife. Gent v. State, 57 Tex. Crim. Rep. 414, 123 S. W. 594, 1909. 2 People v. Gonzalez, 6 Cal. App. 255, 91 Pac. 1013, 1909. 1State v. Sysinger, 25 S. D. 110, 125 N. W. 879, 1909. See supra, § 719, footnotes 19 and 20. Fact of pregnancy is only a circum- stance in a prosecution for rape, and not necessary to sustain a conviction. State v. Simmons, 52 Wash. 132, 100 Pac. 269, 1909. 2 McQueary v. People, 48 Colo. 214, 110 Pac. 210, 21 A. & E, Ann. Cas. 560, 1910. Evidence of birth of child nine months after alleged act of inter- course is competent. Druin v. Com. — Ky. —, 124 S. W. 856, 1910. 3 People v. Cole, 134 App. Div. 759, 119 N. Y. Supp. 259, 1909. See su- pra, § 723, footnotes, 19 and 20. 1 Evidence that one very unfriend- ly to the defendant, and who had considerable influence over the prose- cutrix, a little girl, went to her just before the prosecution was _ insti- tuted, and prior to the trial told her 922 CRIMINAL LAW. [§ 730 of the accused, each of whom was very bitter against him in the prosecution, and their friendly relations with the prosecu- trix, may be shown by the defendant as affecting the reliability and weight of their testimony.’ § 731. —Prior chastity of prosecutrix. The prior chas- tity of prosecutrix is presumed in law, in the absence of statu- tory provisions to the contrary, and an attack upon her repu- tation? in this regard,” and her good reputation therefor can- to swear to enough to put defendant in the penitentiary, is admissible, where the testimony shows that when the defendant, a grown man, took the child home shortly after the alleged rape, her mother noticed nothing unusual and that the child, upon being questioned three weeks after, at first denied there was any assault. Liles v. State, 58 Tex. Crim. Rep. 310, 125 8. W. 921, 1910. 2 State v. Coss, 53 Or. 462, 101 Pac. 193, 1909. 1 People v. O’Brien, 130 Cal. 1, 62. Pac. 297, 1900. Evidence of the good reputation of the prosecutrix for truthfulness and chastity is admissible to support her testimony that she believed herself married to defendant, where evidence of defendant has a tendency to show she had willingly left home with defendant to engage in criminal acts with him. Wilkerson v. State, 60 Tex. Crim. Rep. 388, 131 S. W. 1108, 1910. Testimony of prosecutrix as to pre- vious chastity need not be considered in prosecution for rape of female of previous chaste character. Leedom v. State, 81 Neb. 585, 116 N. W. 496, 1908. After testimony of physician that shortly after alleged rape he found the hymen of the prosecutrix rup- tured, and that it indicated penctra- tion, she may testify that defendant is the only person who ever had in- tercourse with her. State v. Colom- bo, — Del. —, 75 Atl. 616, 1909. Where defendant assails prosecu- trix’s character, evidence of her good reputation is admissible. Leedom v. Beate 81 Neb. 585, 116 N. W. 496, In Holland v. State, 60 Tex. Crim. Rep. 117, 131 S. W. 563, 1910, the reputation of the prosecutrix for chastity was assailed so as to permit evidence that it was good, by tes- timony on the part of the defendant that she invited him to her house in the absence of the family, and by her actions inviting intercourse, and that the use of force was not neces- sary. 2 Reputation of prosecutrix for un- chastity may be shown by defend- ant. Jackson v. State, 92 Ark. 71, 122 S. W. 101, 1909; State v. Verto, 65 W. Va. 628, 64 S. E. 1025, 1909. Proof of general reputation of prosecutrix for unchastity or that she was a common prostitute may be made as bearing upon the ques- tion of consent, but not to establish lack of credibility as a witness. Jackson v. State, 92 Ark. 71, 122 S. W. 101, 1909; State v. Detwiler, 60 W. Va. 583, 55 S. E. 654, 1906. —Evidence of reputation for chas- tity of the mother and sister of the proesecutrix is not admissible in prosecution for rape of female under the age of consent, who acknowleages previous intercourse with defendant and also with other men, the defend- ant claiming her to be a nymphio- maniac, where the evidence of ex- perts examined showed it would be necessary to know the history of the female ancestry of the prosecutrix in order to say whether or not she was a nymphomaniac, but that their reputation would shed no light on the subject. Jenkins v. State, 60 Tex. Crim. Rep. 236, 181 S. W. 542, 1910. Prior offenses only may be shown. State v. Blackburn, — Iowa, —, 110 N. W. 275, 1907. § 732] RAPE. 923 not be shown ® until attacked; and where there is no doubt that consent was absent and force was used, evidence of the chastity or unchastity of the prosecutrix is inadmissible. In those states where, by statute, the prior character of the prosecutrix is made an issue, there is no presumption of former chastity, and the burden is on the state to prove that fact. The reputa- tion of prosecutrix for chastity or unchastity is material on question of consent and the probability of her story, only,’ and this reputation may be supported or attacked by circumstantial evidence.” § 732. —Prior intercourse. The fact of prior inter- course between the parties,’ in a prosecution for statutory rape, is admissible,? but does not constitute evidence of subsequent 3 Unless she be a stranger in the county. Holland v. State, 60 Tex. Crim. Rep. 117, 131 8. W. 563, 1910. Defendant may prove good reputa- tion for virtue and morality. Lake v. Com. 31 Ky. L. Rep. 1232, 104 S. W. 1003, 1907. Testimony of the general moral character of the prosecutrix at the time of the alleged rape is inadmis- sible. State v. Blackburn, — Iowa, —, 110 N. W. 275, 1907. Where there is no evidence tending to show consent, testimony of the prosecutrix that she never had inter- course before defendant ravished her is improper. Griffin v. State, 155 Ala. 88, 46 So. 481, 1908. 4[Ind.] Anderson v. State, 104 Ind. 467, 4 N. E. 63, 5 N. E. 711, 5 Am. Crim. Rep. 601, 1885. [Tex.] Steinke v. State, 33 Tex. Crim. Rep. 65, 24 S. W. 909, 25 S. W. 287, 1894. [Vt.] State v. Bedard, 65 Vt. 278, 26 Atl. 719, 1892. 5 Marshall v. Territory, 2 Okla. Crim. Rep. 136, 101 Pac. 139, 1909. Actual virtue and chastity, and not her reputation for such, is the issue under wu statute making it an offense to have sexual intercourse with a female between certain ages. Marshall v. Territory, 2 Okla. Crim. Rep. 136, 101 Pac. 139, 1909. The term “good repute” in a stat- ute making intercourse with a female of certain age and repute rape, and with one not of good repute forni- cation, means the general reputation of the woman for chastity in the community in which she lives. It is presumed this reputation is good, and the state need not so prove. If it is bad the defendant may show it. Com. v. Howe, 35 Pa. Super. Ct. 554, 1908. Jury should be instructed as to what constitutes previous chaste and virtuous character, where such is in issue and the facts submitted for determination, whether it did or did not exist. Marshall v. Ter- ritory, 2 Okla. Crim. Rep. 136, 101 Pac. 139, 1909. 6 Lake v. Com. 31 Ky. L. Rep. 1232, 104 S. W. 1003, 1907. 7Marshall v. Territory, 2 Okla. Crim. Rep. 136, 101 Pac. 139, 1909. 1See infra, § 735, footnote 3. Evidence of prior intercourse is admissible, although it took place in another county or state. State vy. Sysinger, 25 8. D. 110, 125 N. W. 879, 1910. 2Evidence of prior acts within two months of act charged is ad- missible as corroborative of the testi- mony of the prosecutrix. Boyd v. State, 81 Ohio St. 239, 185 Am. St. Rep. 781, 90 N. E. 355, 18 A. & E. Ann. Cas. 441, 1909. Improper acts and solicitations of defendant prior to the act charged are admissible to show probable mo- tive. State v. Campbell, 210 Mo. CRIMINAL LAW. [§ 732 924 intercourse.* Evidence of intercourse with others than the de- fendant,* and that, upon being upbraided therefor by her sisters, the prosecutrix threatened to charge accused, the husband of one of the sisters, with the offense, is admissible in evidence as af- fecting the truthfulness and reliability of prosecutrix’s testi- mony.® § 733. —Resistance and outcry. Force and resistance are essential elements in the crime of rape.’ Resistance must be shown by the prosecution® to sustain the story of the prose- cutrix and establish the absence of consent.® This resistance must be by acts, and not by mere words,* and must be made in good faith,® and not feigned.$ 202, 109 S. W. 706, 14 A. & E. Ann. Cas. 403, 1908. Testimony of buggy rides taken by defendant and prosecutrix, re- turning at late hours, during one of which defendant was attempting to hug and kiss her, is admissible as showing the intimacy of the parties. Battles v. State, 53 Tex. Crim. Rep. 202, 109 S. W. 195, 1908. Evidence of acts of familiarity or intimacy between prosecutrix and defendant. 11 A. & E. Ann. Cas. 672. 3 People v. Nichols, 159 Mich. 355, 124 N. W. 25, 1909. Contrary doctrine. See infra, § 735, particularly authorities in footnote 4 4See infra, § 735, footnote 2. Evidence that in the spring of 1908 prosecutrix had in ner posses- sion an unaddressed and unsigned note saying the writer would meet her “to-night” and have intercourse with her is not admissible to show she had indulged in sexual inter- course, where prosecution was for an alleged rape committed May 28th 1909. State v. Dudley, 147 Iowa, 645, 126 N. W. 812, 1910. Where prosecutrix testifies that she never had intercourse with any man other than the accused, evidence is admissible, in rebuttal, to show acts of lewdness, familiarity, etc., with other men, indicating that she might have been guilty of inter- course with them, and to account for her general condition and the rupture of her hymen and the con- The amount of resistance de- dition of her vagina, etc., as testi- fied to by physician who examined her. Bader v. State, 57 Tex. Crim. Rep. 298, 122 8S. W. 555, 1909. —Evidence of specific instances to prove character for chastity. 14 L.R.A.(N.S.) 714. 5Shoemaker v. State, 58 Tex. Crim. Rep. 518, 126 S. W. 887, 1910. 1See supra, §§ 681 et seq. See note in 65 Am. Dec. 509. 2[Ala.] State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79, 1844; Lewis v. State, 30 Ala. 54, 68 Am. Dec. 113, 1857. [Mich.] Crosswell v. Peo- ple, 13 Mich. 427, 87 Am. Dec. 774, 1865. [Minn.] State v. Cowing, 99 Minn. 123, 108 N. W. 851, 9 A. & iE. Ann. Cas. 566, 1906. See notes in 41 Am. Dec. 84 and 68 Am. Dec. 115. 8As to the resistance necessary to establish the absence of consent, see note in 9 A. & E. Ann. Cas. 572. 4 Huber v. State, 126 Ind. 185, 25 N. E. 904, 1890. 5 Reg. v. Rudland, 4 Fost. & F. 495; Davis v. State, 63 Ark. 472, 39 So. 356, 1897; Hawkins v. State, 136 Ind. 630, 36 N. E. 419, 1893; Rahke v. State, 168 Ind. 615, 81 N. E. 584, 1907. 6 Where resistance might have been feigned, the consideration of picture postals of men and women in loving attitudes, exchanged be- tween the parties, and of a letter from complainant to defendant, mak- ing an appointment for a meeting on the occasion ot the alleged as- § 733] RAPE. 925 pends on circumstances surrounding the female at the time, and the relative strength of the parties,’ and always depends more or less upon the particular cireumstances of each case.* Mere passive resistance is not sufficient;® it must be to a point of being overpowered by actual force.” The extent of resistance required is variously expressed in the different decisions of the various courts, as: a simple re- sistance ; 1 “ her power ;” '9 “ stances ;” 4 “ all resistance in her power; every exertion in her power under the circum- every resistance she could make;”™ “to the ex- ;” ® “every exertion in tent of her ability;”*® “to the full extent of her ability;” “positive resistance ;”* “ proportionate to the occasion, under 2729:19 66 the circumstances, at the time of the act complained of ; rea- sonable resistance ;” *° “ make;’’*! “the utmost resistance sault, should not be limited to the issue of consent alone, but should be considered also on the issue of force; and an instruction so limit- ing the evidence is erroneous. Smith v. State, 56 Tex. Crim. Rep. 316, 120 S. W. 188, 1909. 7 Perez v. State, 50 Tex. Crim. Rep. 34, 94 S. W. 1036, 1906. 8 Extent of resistance which ought reasonably to be expected necessarily depends very much upon particular circumstances attending each indi- vidual case, and no general rule can be laid down on the subject, which is capable of application to all cases. Cross v. State, 132 Ind. 65, 31 N. E. 473, 1892; Hawkins v. State, 136 Ind. 630, 36 N. E. 419, 1894. 9 Anderson v. State, 82 Miss. 784, 35 So. 202, 1903. 10 Reg. v. Hallett, 9 Car. & P. 748; People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349, 1874. 11See People v. Jailles, 146 Cal. 301, 79 Pac. 965, 1905; State v. Delvechio, 25 Utah, 18, 69 Pac. 58, 1902. 12 [Eng.] Reg. v. Hallett, 9 Car. & P. 748. [Can.] Reg. v. Fick, 16 U. C. C. P. 879. [Iowa] State v. Ward, 73 Iowa, 532. 35 N. W. 617, 1887. 13 Mooney v. State, 29 Tex. App. 257, 15 S. W. 724, 1890; Rhea v. such resistance as was in her power to 299 22 ;’** and “vehement exercise of State, 30 Tex. App. 483, 17 S. W. 931, 1891. 14Perez v. State, 50 Tex. Crim. Rep. 34, 94 S. W. 1036, 1906. 15 Reg. v. Hallett, 9 Car. & P. 784. 16 [Neb.] Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366, 9 N. W. 38, 1881; Matthews v. State, 19 Neb. 330, 27 N. W. 234, 1886. [N. Y.] People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349, 1874. [Okla.] Sowers v. Territory, 6 Okla. 436, 50 Pac. 257, 1897. [Wis.] Whit- taker v. State, 50 Wis. 518, 36 Am. Rep. 856, 7 N. W. 431, 3 Am. Crim. Rep. 391, 1880. See note in 36 Am. Rep. 860. 7 State v. Colestock, 41 Or. 9, 67 Pac. 418, 1902. 18 Barker v. State, 40 Fla. 18€, 24 So. 69, 1898. 19 Vaughn v. State, 78 Neb. 317, 110 N. W. 992, 1907. 20 Cross v. State, 132 Ind. 65, 31 N. E. 473, 1892. 21 Territory v. Potter, 1 Ariz. 421, 25 Pac. 529, 18838. 22 [Ala.] Herndon v. State, — Ala. —, 56 So. 85, 1911. [Cal.] People v. Benson, 6 Cal. 221, 65 Am. Dec. 506, 1856. [Colo.] Bigcraft v. Peo- ple, 30 Colo. 298, 70 Pac. 417, 1902. [Mich.] Strang v. People, 24 Mich. 1, 1871; Don Moran v. People, 25 926 every physical means or faculty within the woman’s power, CRIMINAL LAW. ° {§ 733 29 23 and other experiences of like character. Determining question of resistance, jury should consider the relative strength of the accused and the prosecutrix, in connec: tion with other facts and circumstances of the case. *4 Failure to make outcry *° may be considered, as may also the failure to make complaint, in determining the question of re- sistance and consent on the part of prosecutrix.”® Mich. 356, 12 Am. Rep. 283, 1872. [Mo.] State v. Burgdorf, 53 Mo. 65, 1873; State v. Harris, 150 Mo. 56, 51S. W. 481, 1899. [Neb.] Vaughn v. State, 78 Neb. 317, 110 N. W. 992, 1907. [N. M.] Mares v. Terri- tory, 10 N. M. 770, 65 Pac. 165, 1901. [N. Y.] People v. Quinn, 50 Barb. 128, 1867; Reynolds v. People, 41 How. Pr. 179, 1871; People v. Morrison, 1 Park. Crim. Rep. 625, 1854; People v. Abbott, 19 Wend. 192, 1838. [Tex.] Owens v. State, 39 Tex. Crim. Rep. 391, 46 S. W. 240, 1898; Barnett v. State, 42 Tex. Crim. Rep. 302, 62 S. W. 765, 1900; Perez v. State, 50 Tex. Crim. Rep. 34, 94 S. W. 1036, 1906. [Wis.] O’Boyle v. State, 100 Wis. 296, 75 N. W. 989, 1898; Devoy v. State, 122 Wis. 152, 99 N. W. 455, 1904. All her power of resistance and defense and all her power of calling others to her aid. People v. Dohring, 59 N. Y. 374, 17 Am, Rep. 349, 1874. Entitled to kill assailant if neces- sary, but not bound to do so. Hern- don v. State, — Ala. —, 56 So. 85, 1911. “Utmost resistance,” Coctrine of, does not apply where female put in fear of personal violence, or the intercourse is by fraud. State v. Dusenberry, 112 Mo. 277, 20 S. W. 461, 1892. “Yo her utmost, or at least to the extent of her ability.” Less degree of resistance may be sufficient in peculiar cases and under peculiar circumstances. Vaughn v. State, 78 Neb. 317, 110 N. W. 992, 1907. “Utmost ability” need not be shown. State v. Sudduth, 52 S. C. 488, 30 S. E. 408, 1898. “Whatever the circumstances may be, there must be the greatest effort ot which she is capable therein, to foil the pursuer and preserve the sanctity of her person; this is the extent of her ability.” People v. Dohring, 59 N. Y. 374, 17 Am. Rep. 349, 1874, citing [Eng.] Rex v. Lloyd, 7 Car. & P. 318. [Mich.] Crosswell v. People, 13 Mich. 427, 87 Am. Dec. 774, 1865. [N. Y.] People v. Brans- by, 32 N. Y. 525, 1865; People v. Hulse, 3 Hill, 309, 1842. 23 Brown v. State, 127 Wis. 193, 106 N. W. 536, 7 A. & E, Ann. Cas. 258, 1909. 24 Salazar v. State, 55 Tex. Crim. Rep. 307, 116 S. W. 819, 1909. Jury weighing testimony of prose- cutrix must consider the time and place of the alleged assault, outcries or resistance, or the absence thereof, the nearness of other people who might have heard the outcries, if any, and also the complaint made by the prosecutrix after alleged com- mission of the act, and all the sur- rounding circumstances. State v. Colombo, — Del. —, 75 Atl. 616, 1909. 25 Failure to make outcry, if the place where the act alleged to have been committed was such that it was possible she might have been heard; concealing of the injury for any considerable time after she had opportunity to complain,—these and like circumstances carry a strong, but not conclusive, presumption that her testimony is false and feigned. Whitney v. State, 35 Ind. 506, 1871; Oleson v. State, 11 Neb. 276, 38 Am. Rep. 366, 9 N. W. 38, 1881. 26 Failure to make outcry, and con- cealment after opportunity to make \ § 735] RAPE. 927 § 734. Time is notan element. Time is not a material ingredient in the crime of rape. It is not essential that the indictment should state precisely the date on which the outrage occurred ; and evidence may be received of an act on a day other than that alleged in the indictment,’ provided it alleged the of- fense to have been committed within the period of the statute of limitations.? § 735. Character of defendant; specific immoral acts. The character of the defendant and his reputation for unchas- tity may become a proper subject of inquiry,’ and other similar acts of unchastity,® and proof of other similar acts of intercourse by the accused with the prosecutrix either before* the crime complaint, are circumstances to be considered in weighing the testi- mony of the prosecutrix, and will justify the inference that the act was with her consent. State v. Goodale, 210 Mo. 275, 109 8. W. 9, 1908. Failure to make outcry on vio- lation of person, attempted, consid- ered in connection with the fact that her garments were not injured in the struggle with the assailant, as well as the fact that she failed to make disclosure of the injury for several days, tending strongly to show consent, may be considered by the jury, but are not to be regarded as conclusive and should always be taken into consideration in connec- tion with the age and intelligence of the prosecutrix. State v. Cross, 12 Iowa, 66, 79 Am. Dec. 519, 1861. See People v. Benson, 6 Cal. 221, 65 Am. Dec. 506, 1856. —Court should charge jury that failure to make outcry should be considered in connection with the other facts on question of resist- ance. Jackson v. State, 92 Ark. 71, 122 S. W. 101, 1909. 1Cecil v. Territory, 16 Okla. 197, 82 Pac. 654, 8 A. & E. Ann. Cas. 457, 1905; State v. Hoben, 36 Utah, 186, 102 Pac. 1000, 1909. 2State v. Colombo, — Del. —, 75 Atl. 616, 1909. 1In rebuttal the state may show evidence of specific immoral acts of defendant in his place of business, where he has testified that his busi- ness was a Jegitimate one of selling candies, pictures, etc., which attract children, and that any acts of fa- miliarity on his part were merely to induce trade, and innocent. Rob- iuson v. State, 143 Wis. 205, 126 N. W. 750, 1910. 2[Kan.] State v. Borchert, 68 Kan. 360, 74 Pac. 1180, 1904. [Mo.] State v. Scott, 172 Mo. 542, 72 8. W. 897, 1902. [N. J.] People v, Cannon, 72 N. J. L. 46, 60 Atl. 177, 1905. [N. Y.] People v. Jones, 99 N. Y. 667, 2 N. E. 49, 1888; People v. O'Sullivan, 104 N. Y. 481, 58 Am. Rep. 530, 10 N. E. 880, 1887. [Utah] State v. Neel, 23 Utah, 541, 65 Pac. 494, 1901. [Wash.] State v. Os- Lorne, 39 Wash. 548, 81 Pac. 1096, 1905. As to evidence of other crimes of a similar nature perpetrated upon the prosecutrix or others, see notes in 105 Am. St. Rep. 976-1006; 62 L.R.A. 314, 323; and 8 A. & E. Ann. Cas. 459-463. 8 [Ala.] Lawson v. State, 20 Ala. 65, 56 Am. Dec. 182, 1852; McLeod v. State, 35 Ala. 395, 1860; Cross v. State, 78 Ala. 430, 1885. [Cal.] People v. Patterson, 102 Cal. 239, 36 Pac. 436, 1894; People v. Castro, 133 Cal. 11, 65 Pac. 13, 1901; Peo- ple v. Mathews, 139 Cal. 527, 73 Pac. 416, 1903. [Colo.] Mitchell v. People, 24 Colo. 532, 52 Pac. 761, 1898; Bigcraft v. People, 30 Colo. 298, 70 Pac. 417, 1902. [Fla.] Bre- 928 charged or after that date,’ or CRIMINAL LAW. [§ 735 other acts of the defendant,— even though subsequent to the act complained of,—tending to explain the circumstances surrounding the crime charged,® may be made; but the state cannot valdo v. State, 21 Fla. 789, 1886. [Ga.] Bass v. State, 103 Ga. 227, 29 Ss. E. 966, 1897; Taylor v. State, 110 Ga. 150, 35 S. E. 161, 1899. [Idaho] State v. Lancaster, 10 Idaho, 410, 78 Pac. 1081, 1904. [Ill.] Crane v. People, 65 Ill, App. 492, 1895. [Iind.] State v. Markins, 95 Ind. 464, 48 Am. Rep. 733, 1884; Lefforge v. State, 129 Ind. 551, 29 N. E. 34, 1891. [Iowa] State v. Briggs, 68 Iowa, 416, 27 N. W. 358, 1886; State v. Henderson, 84 Iowa, 161, 50 N. W. 758, 1891; State v. Trusty, 122 Iowa, 82, 97 N. W. 989, 1904. [La.] State v. De Hart, 109 La. 570, 33 So. 605, 1903. [Mass.] Com. v. Lahey, 14 Gray, 91, 1859. [Mich.] People v. Jenness, 5 Mich. 305, 1858; People v. Skutt, 96 Mich. 449, 56 N. W. 11, 1893; People v. Schilling, 110 Mich. 412, 68 N. W. 233, 1896. [Mo.] State v. Patrick, 107 Mo. 147, 17 S. W. 666, 1891; State v. Scott, 172 Mo. 536, 72 8S. W. 897, 1902; State v. Palmberg, 199 Mo. 233, 116 Am. St. Rep. 476, 97 S. W. 566, 1906; State v. Clawson, 32 Mo. App. 93, 1888. [Mont.] State v. Peres, 27 Mont. 358, 71 Pac. 162, 1902. [N. J.] State v. Snover, 64 N. J. L. 65, 44 Atl. 850, 1899; State v. Jackson, 65 N. J. L. 62, 46 Atl. 767, 1900. [N. M.] United States v. Grie- go, 12 N. M. 84, 75 Pac. 30, 1904. LN. Y.] People v. O’Sullivan, 104 N. Y. 481, 58 Am. Rep. 530, 10 N. E. 880, 1887; People v. Flaherty, 162 N. Y. 532, 57 N. E. 73, 1900; People v. Grauer, 12 App. Div. 464, 42 N. Y. Supp. 721, 1896. [N. C.] State v. Kemp, 87 N. C. 538, 1882; State v. Pippin, 88 N. C. 646, 1883; State v. Guest, 100 N. C. 410, 6 S. E. 253, 1888; State v. Dukes, 119 N. C. 782, 25 S. E. 786, 1896. [Or.] State v. Robinson, 32 Or. 48, 48 Pac. 357, 1897. [Pa.] Com. v. Bell, 166 Pa. 405, 31 Atl. 123, 1895. [Tenn.] Sykes v. State, 112 Tenn. 572, 105 Am. St. Rep. 972, 82 S. W. 185, 1903. [Utah] State v. Hilberg, 22 Utah, 27, 61 Pac. 215, 1900. [Vt.] State be permitted to show that the v. Potter, 52 Vt. 33, 1879. [Wash.] State v. Fetterly, 33 Wash. 599, 74 Pac. 810, 1903; State v. Conlin, 45 Wash. 478, 88 Pac. 932, 1907. [Wis.] Lanphere v. State, 114 Wis. 193, 89 N. W. 128, 1902. Act done on previous occasions with the victim may be shown as tending to explain the circumstance that the act in question had not occasioned any pain to the female, a child of tender years. Reg. v. Chambers, 3 Cox, C. C. 92. —Fact there was no outcry and no pain suffered by the female, and also to account for the absence of laceration, may be explained by showing that the accused had raped the victim on other occasions, and that there had been other acts of lewdness committed by him with her. People v. Fultz, 109 Cal. 258, 41 Pac. 1040. See Strang v. Peo- ple, 24 Mich. 1, 1871. . 4In prosecution for sexual crimes it is competent to introduce evi- dence of subsequent acts in corrobo- ration or explanation of the act in question, or for the purpose of show- ing the relations and mutual dis- position of the parties. [Ala.] Law- son v. State, 20 Ala. 65, 56 Am. Dec. 182, 1852; Alsabrooks v. State, 52 Ala. 24, 1875. [Ill.] Crane v. People, 168 Ill. 395, 48 N. E. 54, 1897, affirming 65 Ill. App. 492, 1895. [Me.] State v. Witham, 72 Me. 531, 1881; State v. Williams, 76 Me. 480, 1884. [Neb.] State v. Way, 5 Neb. 283, 1877. [IN. C.] State v. Robert- son, 121 N. C. 551, 28 S. E. 59, 1897. [Tenn.] Sykes v. State, 112 Tenn. 572, 105 Am. St. Rep. 972, 82 S. W. 185, 1903. 5 Testimony that immediately after assault the accused procured a gun may be received in explanation of why he was permitted to stay in the house after the assault. Gardner v. State, 56 Tex. Crim. Rep. 594, 120 S. W. 895, 1909. Testimony that on the morning following the rape accused and a § 736] RAPE, 929 accused is a married man,° ror that he has children, and his treatment of them and of his legal wife.” § 736. Prosecutrix may be impeached by proof of bad character, etc. Whether in a prosecution for rape the prose- cutrix can be compelled to answer as to prior sexual relations with other persons than the defendant has been the subject of conflicting rulings; as a matter of fact the rulings are con- flicting upon almost every point in relation to testimony to impeach the credibility of the testimony of the prosecuting witness. In England, and in several courts of the different states, the conclusion is that, while such questions may be asked, answers to them will not be compelled.? In Massachusetts, and in other states, it has been held that in such cases proof of the prosecutrix having had prior connec- tion with others than the defendant is inadmissible.? In New York, on the other hand, and in some of the other states of the Union, the prosecutrix will be compelled to an- swer questions as to such acts of illicit intercourse with others than the defendant.’ companion, while approaching the home of prosecutrix, upon noticing her father emerge therefrom with a gun in his hands, rapidly rode away, is admissible as showing a guilty knowledge. Holloway v. State, 54 Tex. Crim. Rep. 465, 113 S. W. 928, 1908. 6 Jenkins v. State, 60 Tex. Crim. Rep. 236, 131 S. W. 542, 1910. Evidence by defendant that he was engaged to marry a girl other than prosecutrix was properly excluded. Reeves v. Territory, 2 Okla. Crim. Rep. 351, 101 Pac. 1039, 1909. 7 Wilkerson v. State, 60 Tex. Crim. Rep. 388, 131 S. W. 1108, 1910. 1 [Eng.] Rex v. Hodgson, Russ. & R. Cc. C. 211, affirmed in Reg. v. Holmes, 12 Cox, C. C. 187, L. R. 1 C. C. 334, 41 L. J. Mag. Cas. N. S. 12, 25 1 T. N. 8S. 669, 20 Week. Rep. 122, 1871; Rex v. Clarke, 2 Starkie, 241, 1817. But see Reg. v. Clay, 5 Cox, Cc. C. 146. [Ark.] Pleasant v. State, 15 Ark. 624, 1854. ([Cal.] People v. Benson, 6 Cal. 221, 65 Am. Dec. 506, 1856. [Ind.] Wilson v. State, Crim. L. Vol. I.—59. 16 Ind. 392, 1861. [Mass.] Com. v. Regan, 105 Mass. 593, 1870; Com. v. Kendall, 113 Mass. 210, 18 Am. Rep. 469, 1873. [Mo.] State v. White, 35 Mo. 500, 1865. [N. H.] State v. Knapp, 45 N. H. 148, 1863. [Ohio] McCombs v. State, 8 Ohio St. 643, 1858; McDermott v. State, 13 Ohio St. 332, 82 Am. Dec. 444, 1862. [Tex.] Dorsey v. State, 1 Tex. App. 23, 1876. See also Wharton, Crim. Ev. § 473. 2Com. v. Harris, 181 Mass. 336, 1881. See [Ark.] Plunkett v. State, 72 Ark. 409, 82 S. W. 845, 1904. [Miss.] Baker v. State, 82 Miss. 84, 33 So. 716, 1903. [Mo.] State v. Devorss, 221 Mo. 469, 120 S. W. 75, 1909. [Or.] State v. Ogden, 39 Or. 195, 65 Pac. 449, 1901. 3 [Cal.] People v. Shea, 125 Cal. 151, 57 Pac. 885, 1899. [Ind.] Bed- good v. State, 115 Ind. 275, 17 N. E, 621, 1888. [Iowa] State v. Height, 117 Iowa, 650, 59 L.R.A. 487, 94 Am. St. Rep. 323, 91 N. W. 935, 1902; State v. Bebb, 125 Iowa, 494, 930 CRIMINAL LAW. [§ 736 Prosecutrix denying intercourse with others; as to whether she can be contradicted by evidence of the defendant, there is also a difference of opinion among the various courts.* The real question in such cases is: “Is it material to the issue whether the prosecutrix had previously had such illicit inter- course ?” 101 N. W. 189, 1904. [Kan.] State v. Gereke, 74 Kan. 196, 86 Pac. 160, reversed on re-hearing in 74 Kan. 200, 87 Pac. 759, 1906. [Mich.] Rogers v. People, 34 Mich. 345, 1877. [Neb.] Woodruff v. State, 72 Neb. 815, 101 N. W. 1114, 1904. [N. Y.] Brennan v. People, 7 Hun, 171, 1876; People v. Abbott, 19 Wend. 192, 1838; People v. Betsinger, 11 N. Y. Supp. 916, 1890 (though see Peo- ple v. Jackson, 3 Park. Crim. Rep. 391, 1857, and see question left open in Woods v. People, 55 N. Y. 515, 14 Am. Rep. 309, 1874). [N. C.] State v. Murray, 63 N. C. 31, 1868, overruling State v. Jefferson, 28 N. C. (6 Ired. L.) 305, 1846. [S. D.] State v. Rash, — 8S. D. —, 130 N. W. 91, 1911. [Tex.] Shoemaker v. State, 58 Tex. Crim. Rep. 518, 126 S. W. 887, 1910; Wilson v. State, — Tex. Crim. Rep. —, 67 S. W. 106, 1902. [Vt.] State v. Johnson, 28 Vt. 512, 1852; State v. Reed, 39 Vt. 417, 94 Am. Dec. 337, 1867. Compare: Woods v. People, 55 N. Y. 515, 14 Am. Rep. 309, 1874; Peo- ple v. Jackson, 3 Park. Crim. Rep. 391, 1857. Confession of carnal knowledge with three different men, made by prosecutrix, may be shown by de- fendant, indicted for assault by fondling the person without consent. Wilson v. State, — Tex. Crim. Rep. —, 67 S. W. 106, 1902. Pregnancy of prosecutrix being shown, defendant may show inter- course by her with others from which this might have resulted, for the purpose only of counteracting any sympathies with her by reason there- of on the part of the jury. State v.. Bebb, 125 Iowa, 494, 101 N. W. 189, 1904. Prior intercourse with other men — Cannot be shown, when.—In Sher- win v. People, 69 Il. 55, 1 Am. That it is no defense to an indictment for rape that Crim. Rep. 650, 1873, it was held admissible for the defendant to prove that the prosecutrix, prior to the alleged rape, had carnal intercourse with other men, the case resting mainly on the. testimony of her med- ical attendant that her person showed marks of recent sexual in- tercourse, she swearing that she was unconscious at the time of the al- leged rape. *Renfroe v. State, 84 Ark. 16, 104 S. W. 542, 1907; Parker v. State, — Tex. Crim. Rep. —, 136 S. W. 453, 1911. As holding her answer to be final, see Reg. v. Cockcroft, 11 Cox, C. C. 410, 1870; Reg. v. Holmes, 12 Cox, C. C. 187, L. R. 1 ©. C. 334, 41 L, J. Mag. Cas. N. S. 12, 25 L. T. N. S. 669, 20 Week. Rep. 122, over- ruling Reg. v. Robins, 2 Moody & R. 512, 1 Cox, C. C. 55; Reg. v. Riley, L. R. 18 Q. B. Div. 481, 56 L. J. Mag. Cas. N. 8. 52, 56 L. T. N. 8. 371, 35 Week. Rep. 382, 16 Cox, C. C. 191, 1887; People v. Jack- gon, 3 Park. Crim. Rep. 391, 1857. As permitting such contradiction, see People v. Benson, 6 Cal. 221, 65 Am. Dec. 506, 1856; Strang v. Peo- ple, 24 Mich. 1, 1871; Brennan v. People, 7 Hun, 171, 1876; and see Reg. v. Robins, 2 Moody & R. 512, 1 Cox, C. C. 55, 1842, overruled by Reg. v. Holmes, 12 Cox, C. C. 187, L. R. 1 C. C. 334, 41 L. J. Mag. Cas. N.S. 12, 25 L. T. N.S. 669, 20 Week. Rep. 122, 1871. Question of consent vel non not being relied on by defendant, prose- cutrix having testified to previous chaste character and that defend- ant was father of her child, defend- ant may show intercourse with others at the time when they could have been responsible for the child. Knowles v. State, 44 Tex. Crim. Rep. 322, 72 S. W. 398, 1902. § 736] RAPE. 931 the prosecutrix was a woman of loose character, there can be no question;* and if the fact of a forcible connection against the prosecutrix’s will be established, her prior looseness of char- acter will have nothing to do with the issue.® Good character of the prosecutrix cannot be shown by the prosecution in the first instance, in making its case in chief,’ unless the prosecutrix be a nonresident of the county,* because her good character is presumed, and in advance of attack can- not be proved,® except in exceptional cases.!° In rebuttal of evidence of bad character of prosecutrix for chastity, produced by the defense, the state may introduce evidence of her good character in this respect." When the issue is consent on the part of the prosecutrix, her prior history as to chastity is logically material, and if so she 5 See supra, §§ 695, 706. 6 Ibid. 7 [Cal.] People v. O’Brien, 180 Cal. 1, 62 Pac. 297, 1900. [Iowa] State v. Blackburn, — Iowa, —, 110 N. W. 275, 1907. [Neb.] Myers v. State, 51 Neb. 517, 71 N. W. 33, 1897. [Tex.] Holland v. State, 60 Tex. Crim. Rep. 117, 131 S. W. 563, 1910. General character of prosecutrix for chastity is so far involved as to entitle prosecution to introduce it to sustain her testimony, before prosecutrix’s reputation has been at- tacked—quere. Coleman v. Com. 84 Va. 1, 3 8. E. 878, 1887. 8 Holland v. State, 60 Tex. Crim. Rep. 117, 181 S. W. 568, 1910. On indictment for assault, evidence that general reputation of prosecu- trix for virtue and chastity was good in the community in which she lived at time of alleged assault is proper. Wilson v. State, — Tex. Crim. Rep. —, 67 S. W. 106, 1902. 9People v. O’Brien, 130 Cal. 1, 62 Pac. 297, 1900; Holland v. State, 60 Tex. Crim. Rep. 117, 131 S. W. 563, 1910. 10Good reputation of prosecutrix for chastity cannot be shown in chief to make out the state’s case, and before her reputation in this regard has been attacked. [Ala.] Griffin v. State, 155 Ala. 88, 46 So. 481, 1908. [Neb.] Leedom v. State, 81 Neb. 585, 116 N. W. 496, 1908. [Okla.] Mar- shall v. Territory, 2 Okla. Crim. Rep. 136, 101 Pac. 139, 1909. [Tex.] Warren v. State, 54 Tex. Crim. Rep. 443, 114 S. W. 380, 1908. Prosecutrix abandoned by husband a few months prior to the alleged offense, and that fact shown by her testimony, she may be permitted to further testify that she supported herself after her husband’s abandon- ing her by keeping boarders and working out. People v. Murphy, 145 Mich. 524, 108 N. W. 1009, 1906. Physician testifying to examina- tion of prosecutrix immediately after arrest of defendant, and to finding hymen ruptured, and indications of partial or complete penetration, prosecution may prove by prosecu- trix accused was only person who ever had sexual intercourse with her. State v. Colombo, — Del. —, 75 Atl. 616, 1909. 11 [Cal.] People v. Tyler, 36 Cal. 522, 1869. [Ga.] McCain v. State, 57 Ga. 390, 1876. [Miss.] Turney v. State, 8 Smedes & M. 104, 47 Am. Dec. 74, 1847. [Neb.] Wood- ruff v. State, 72 Neb. 815, 101 N. W. 1114, 1904; Leedom v. State, 81 Neb. 585, 116 N. W. 496, 1908. [Okla.] Marshall v. State, 2 Okla. Crim. Rep. 136, 101 Pac. 139, 1909. [Tex.] Warren v. State, 54 Tex. Crim. Rep. 443, 114 S. W. 380. 1908. In rebuttal evidence of previous good character for chastity may be 932 CRIMINAL LAW. [§ 736 should be compelled to answer questions, and be opposed to con- tradiction, should she answer introduced to discredit testimony offered by defendant tending to es- tablish an act of lewdness on her part. Leedom v. State, 81 Neb. 585, 116 N. W. 496, 1908. Bad reputation of prosecutrix for chastity set up by defendant’s testi- mony; prosecution may support her evidence by proof of good reputa- tion. Tyler v. State, 46 Tex. Crim. Rep. 10, 79 S. W. 558, 1904. Circumstantial evidence may be introduced to support good character when attacked. Marshall v. State, 2 Okla. Crim. Rep. 136, 101 Pac. 189, 1909. Denial of specific acts of unchas- tity testified to on behalf of defense, may be made by prosecutrix in re- buttal. Woodruff v. State, 72 Neb. 815, 101 N. W. 1114, 1904. General reputation for virtue and chastity prior to alleged offense may be shown by state in rebuttal of assault upon character. Warren v. State, 54 Tex. Crim. Rep. 443, 114 8S. W. 280, 1908. Living with accused apparently as husband and wife being shown by defendant, prosecution may be per- mitted to prove by letters written by prosecutrix and otherwise that prosecutrix believed there was a valid marriage, and that arrest of accused first brought to her attention that the marriage was a nullity. Wilker- son v. State, 60 Tex. Crim. Rep. 388, 131 S. W. 1108, 1909. Reputation may be shown in re- buttal, where accused testifies prose- cutrix invited him to her house in the absence of the family, and when he arrived she so acted as to invite intercourse, and that torce was un- necessary. Holland v. State, 60 Tex. Crim. Rep. 117, 131 8. W. 568, 1910. Specific acts of unchastity may be inquired into upon cross-examina- tion of a witness as to good character of prosecutrix. See note in 14 L.R.A. (N.S.) 740, 743. Testimony contradicted and cross- examination strongly calculated to induce jury to believe that she had the question in the negative.” willingly left home with accused to engage in criminal acts with him, testimony may be explained and previous good reputation shown. Wilkerson v. State, 60 Tex. Crim. Rep. 388, 131 S. W. 1108, 1909. 12See supra, § 612; also [Eng.] Rex v. Barker, 3 Car. & P. 589; Rex v. Hodgson, Russ, & R. C. C. 211, [Ark.] Pleasant v. State, 15 Ark, 624, 1855; Maxey v. State, 66 Ark. 523, 52 S. W. 2, 1899; Jack- son v. State, 92 Ark. 71, 122 8. W. 101, 1909. [Cal.] People v. Kucheo, 120 Cal. 566, 52 Pac. 1002, 1898; People v. Fong Chung, 5 Cal. App. 587, 91 Pac. 105, 1907. [Ga.] Camp v. State, 3 Ga. 417, 1847; Seals v. State, 114 Ga. 518, 88 Am. St. Rep. 33, 40 S. E. 731, 1902. [Iowa] State v. McDonough, 104 Iowa, 6, 73 N. W. 357, 1897. [Ky.] Neace v. Com. 23 Ky. L. Rep. 125, 62 S. W. 733, 1901. [Mass.] Com. v. Kendall, 113 Mass. 210, 18 Am. Rep. 469, 1873. [Mich.] People v. Ryno, 148 Mich. 137, 111 N. W. 740, 1907. [N. H.] State v. Forshner, 48 N. H. 89, 80 Am. Dec. 132, 1861; State v. Knapp, 45 N. H. 148, 1864. [N. Y.] Woods v. People, 55 N. Y. 515, 14 Am. Rep. 309, 1874; People v. Abbott, 19 Wend. 192, 1838. [N. C.] State v. Jefferson, 28 N. C. (6 Ired. L.) 305, 1846; State v. Henry, 50 N. C. (5 Jones, L.) 65, 1857; State v. Daniel, 87 N. C. 507, 1882. [Ohio] McCombs v. State, 8 Ohio St. 643, 1858; Mc- Dermott v. State, 13 Ohio St. 332, 82 Am. Dec. 444, 1862; Pratt v. State, 19 Ohio St. 277, 1869. [S. C.] State v. Taylor, 57 S. C. 483, 76 Am. St. Rep. 575, 35 8. E. 729, 1900. [Tex.] Lawson v. State, 17 Tex. App. 292, 1884; Wilson v. State, 17 Tex. App. 525, 1884; Bader v. State, 57 Tex. Crim. Rep. 293, 122 S. W. 555, 1909; Ross v. State, 60 Tex. Crim. Rep. 547, 132 S. W. 798, 1910. [W. Va.] State v. Detwiler, 60 W. Va. 583, 55 S. E. 654, 1906. See monographic notes in 80 Am. pee 368, 372, and 53 Am. St. Rep. § 736] RAPE. 933 In any view, evidence may be received as to the woman’s prior connection with the defendant, Compare: State v. Williamson, 22 Utah, 248, 83 Am. St. Rep. 780, 62 Pac. 1022, 1900. Admissible to show intercourse may have been by consent. People v. Ryno, 148 Mich. 137, 111 N. W. 740, 1907. Character of prosecutrix may be called in question as affecting her credibility as a witness, and also as a circumstance affecting the prob- ability of consent; but if affecting probability of consent the evidence must be of general reputation for chastity, and if affecting her cred- ibility as a witness on all points the evidence must be as to her general reputation for untruthfulness and immorality. Maxey v. State, 66 Ark. 523, 52 S. W. 2, 1899. Female beneath age of consent, testimony inadmissible as a defense. [Cal.] People v. Currie, 14 Cal. App. 67, 111 Pac. 108, 1910. [Conn.] State v. Rivers, 82 Conn. 454, 74 Atl. 757, 1909. [Idaho] State v. Hammock, 18 Idaho, 424, 110 Pae. 169, 1910. General reputation for unchastity, and not evidence of particular acts, can be introduced to impeach testi- mony of prosecutrix; but this rule does not apply where prosecutrix is young, inexperienced, has lived a secluded life, or her proclivities can be shown by specific acts of lewdness only. People v. Benson, 6 Cal. 221, 65 Am. Dec. 506, 1856; Shirwin v. People, 69 Ill. 55, 1 Am. Crim. Rep. 650, 1873. Habitual induigence in lewd con- versation, the telling of indecent stories, etc., by the prosecutrix, a witness may be given to show a depraved mind and as affecting the question of consent, is incompetent, where the speeches, etc., sought to be proved did not accompany lewd- ness of demeanor. People v. Kuches, 120 Cal. 566, 52 Pac. 1002, 1898. Instruction that evidence of chas- tity “goes only in mitigation or ag- which is regarded as material gravation of the crime, and to affect the credibility of the testimony of the prosecutrix, and cannot go to a prejudice of the crime,” is erroneous. Neace v. Com. 23 Ky. L. Rep. 125, 62 S. W. 733, 1901. Lewdness, familiarity, etc., tend- ing to show that prosecutrix may have had sexual intercourse with other men than the accused, may be shown to rebut her testimony of chastity and virginity, and also to account for the condition of her sex- ual organs, testified to by physicians. Bader v. State, 57 Tex. Crim. Rep. 293, 122 8. W. 555, 1909. Prior friendly relations between the parties may be proved. See Hall v. People, 47 Mich. 636, 11 N. W. 414, 1882. Unaddressed and unsigned note in possession of prosecutrix, saying writer would meet and have sexual intercourse with her “to-night,” shown to uave been in possession of the prosecutrix a year before the date of the alleged rape, is inadmis- sible in evidence to show previous intercourse by her. State v. Dud- ley, 147 Iowa, 645, 126 N. W. 812, 1910. Venereal disease — Sexual inter- course with others than the accused at about the time of the alleged con- nection with the accused, as tending to repel inference accused had con- veyed to her a loathsome disease. State v. Height, 117 Iowa, 650, 59 L.R.A. 437, 94 Am. St. Rep. 323, 91 N. W. 935, 1902. Venereal disease — Sexual inter- course with Chinamen other than the accused, prior to the crime alleged, by a girl under age, may be shown as tending to affect her credibility as a witness, the possibility of her being mistaken in the identity of the party, and as tending to repel the inference the accused conveyed to her a loathsome disease. People v. Fong Chung, 5 Cal. App. 587, 91 Pac, 105, 1907. 934 CRIMINAL LAW. [§ 736 to the question of consent,’ and she may be compelled to an- swer questions as to such connection.” Defendant has a right to prove assent, aside from the wo- man’s testimony, by any circumstances from which assent can be inferred; ** and among these circumstances is the fact that the prosecutrix was a woman of loose character,’® in the habit 13 [Eng.] Rex v. Martin, 6 Car. & P. 562, 1834, adopted by Keley, C. B. in Reg. v. Holmes, 12 Cox, C. G. 137, L. R. 1 C. C. 334, 41 L. J. Mag. Cas. N. 8. 12, 25 L. T. N.S. 669, 20 Week. Rep. 122, 1871; Reg. v. Rearden, 4 Fost. & F. 76; Rex v. Clarke, 2 Starkie, 241, 1819; Reg. v. Riley, L. R. 18 Q. B. Div. 481, 56 L. J. Mag. Cas. N. S. 52, 56 L. T. N. 8. 371, 35 Week. Rep. 382, 16 Cox, C. ©. 191, 1887. [Ark.] Pleasant v. State, 15 Ark. 634, 1855. [Cal.] People v. Manahan, 32 Cal. 68, 1867; People v. Morris, 3 Cal. App. 1, 84 Pac. 468, 1906; People v. Boero, 13 Cal. App. 686, 110 Pac. 525, 1910. [lowa] State v. Cook, 65 Iowa, 560, 22 N. W. 675, 1885. [N. H.] State v. Forshner, 43 N. H. 89, 80 Am. Dec. 132, 1861; State v. Knapp, 45 N. H. 148, 1864. [N. Y.] People v. Abbott, 19 Wend. 192, 1838. [N. C.] State v. Jefferson, 28 N. C. (6 Ired. L.) 305, 1846. [Or.] State v. Ogden, 39 Or. 195, 65 Pac. 449, 1901. [S. D.] State v. Sysinger, 25 S. D. 110, 125 N. W. 879, 1910. Declarations of prosecutrix admis- sible for this purpose. State v. Cook, 65 Iowa, 560, 22 N. W. 675, 1885. Evidence of prior connection, when not tending to show consent of prose- cutrix, but to impeach the character of defendant and charge him with other felonies than the one at trial, is inadmissible. State v. Bonsor, 49 Kan. 758, 31 Pac. 736, 1892. 14Tbid. [Ark.] Pleasant v. State, 15 Ark. 624, 1855. [Cal.] People v. Benson, 6 Cal. 221, 65 Am. Dec. 506, 1856. [N. H.] State v. Forsh- ner, 43 N. H. 89, 80 Am. Dec. 132, 1869; State v. Knapp, 45 N. H. 148, 1863. [N. Y.] People v. Abbott, 19 Wend. 192, 1838. [N. C.] State v. Jefferson, 28 N. C. (6 Ired. L.) 305, 1846. 15 Circumstantial evidence attack- ing previous character for chastity is admissible. Marshall v. Territory, 2 Okla. Crim. Rep. 136, 101 Pac. 139, 1909. Declarations of husband not ad- inissible to impeach prosecutrix. Mce- Combs v. State, 8 Ohio St. 643, 1858. Subsequent intercourse, proof of, inadmissible. People v. Nichols, 159 Mich. 355, 124 N. W. 25, 1909. 16 [Ala.] Herndon v. State, — Ala. —, 56 So. 85, 1911. [Ark.] Jack- son v. State, 92 Ark. 71, 122 S. W. 101, 1909. [Conn.] State v. De Wolf, 8 Conn. 93, 20 Am. Dec. 90, 1830; State v. Brauneis, — Conn. —, 79 Atl. 70, 1911. [Ind.] Bessette v. State, 101 Ind. 85, 1884. [Ky.] Neace v. Com. 23 Ky. L. Rep. 125, 62 N. W. 733, 1901; Lake v. Com. 31 Ky. L. Rep. 1232, 104 S. W. 1003, 1907. [Md.] Shartzer v. State, 63 Md. 149, 52 Am. Rep. 501, 1884. [Mass.] Com. v. McDonald, 110 Mass. 405, 1872; Com. v. Harris, 131 Mass. 336, 1881; People v. Nichols, 159 Mich. 355, 124 N. W. 25, 1909. [Neb.] Woodruff v. State, 72 Neb. 815, 101 N. W. 1114, 1904. [N. M.] Territory v. Pino, 9 N. M. 598, 58 Pac. 393, 1899. [Okla.] Hast v. Territory, 5 Okla. Crim. Rep. 162, 114 Pac. 261, 1911. [Or.] State v. Ogden, 39 Or. 195, 65 Pac. 449, 1901. [S. C.] State v. Taylor, 57 S. C. 483, 76 Am. St. Rep. 575, 35 S. E. 729, 1900. [S. D.] State v. Smith, 18 S. D. 341, 100 N. W. 740, 1904. [Tex.] Lawson v. State, 17 Tex. App. 292, 1884; Wilson v. State, 17 Tex. App. 525, 1884; Knowles v. State, 44 Tex. Crim. Rep. 326, 72 8S. W. 400, 1902; Ross v. State, 60 Tex. Crim. Rep. 547, 132 S. W. 793, 1910. [Utah] State v. Hilberg, 22 Utah, 27, 61 Pac. 215, 1900. [W. RAPE. 935 oz receiving the embraces of men promiscuously ;7” but whether specific acts of lewdness, or acts of lascivious character, or of unchastity, on the part of the prosecutrix with others than the defendant is admissible in evidence, the courts are not agreed, some holding such evidence admissible,” and others holding it Va.] State v. Verto, 65 W. Va. 628, 64 S. E. 1025, 1909. Evidence of the immodesty of the prosecutrix admissible as bearing on question of consent. State v. Cas- sidy, 85 Iowa, 145, 52 N. W. 1, 1892; State v. Pilkington, 92 Iowa, 92, 60 N. W. 502, 1894. General reputation only can be in- quired into. State v. Hilberg, 22 Utah, 27, 61 Pac. 215, 1900. General reputation for unchastity may be proved. See note in 14 LR. A.(N.S.) 714. General reputation cannot be shown. Hast v. Territory, 5 Okla. ‘Crim. Rep. 162, 114 Pac. 261, 1911. General reputation not admissible to prove prior unchastity. Woodruff v. State, 72 Neb. 815, 101 N. W. 1114, 1904. Specific acts only showing want of virtuous character prior to the intercourse, can be shown. Hast v. Territory, 5 Okla. Crim. Rep. 162, 114 Pac. 261, 1911. Specific acts of unchastity not ad- missible to impeach character. [Nev.] State v. Campbell, 20 Nev. 122, 17 Pac. 620, 1888. [N. M.] Territory v. Pino, 9 N. M. 598, 58 Pac. 393, 1899. [Or.] State v. Ogden, 39 Or. 195, 65 Pac. 449, 1901. [Tex.] Knowles v. State, 44 Tex. Crim. Rep. 326, 72 S. W. 400, 1902. Compare: Hast v. Territory, 5 Okla. Crim. Rep. 162, 114 Pac. 261, 1911. Specific acts of unchastity cannot he shown, whether sought to be proved by the prosecutrix herself or by others, except that prior acts of illicit intercourse with the accused are admissible as raising an inference of consent. [Conn.] State v. De Wolf, 8 Conn. 98, 20 Am. Dec. 90, 1830. [Ind.] Bassette v. State, 101 Ind. 85, 1884, [Md.] Shartzer v. State, 63 Md. 149, 52 Am. Rep. 501, 1884, [Mass.] Com. v. Harris, 131 Mass. 336, 1881. [Tex.] Lawson v. State, 17 Tex. App. 292, 1884; Wil- son v. State, 17 ‘lex. App. 525, 1884. Time of reputation must be fixed by the testimony, showing the time of the prevalence of the reputation to have been before the commission of the offense, to render it admis- sible. State v. Barrick, 60 W. Va. 576, 55 S. E. 652, 1906. 17 [Eng.] Rex v. Martin, 6 Car. & P. 562, 1834. [Ind.] but see Richie v. State, 58 Ind. 355, 1877. [Mich.] Hall v. People, 47 Mich. 636, 11 N. W. 414, 1882. [N. C.] State v. Hairston, 121 N. C. 579, 28 S. E. 492, 1897. Habitual unchastity with promiscuously, admissible. Rex v. Martin, 6 Car. & P. 562, 1834. [Mich.] Hall v. People, 47 Mich. 636, 11 N. W. 414, 1882. [N. Y.] Woods v. People, 55 N. Y. 515, 14 Am. Rep. 309, 1874. Compare: Ritchie v. State, 58 Ind. 355, 1877. Illicit relations with others than defendant, not at a time when the child alleged to be the result of the intercourse might have been con- ceived, is inadmissible in impeach- ment of prosecutrix’s testimony. State v. Blackburn, 136 Iowa, 743, 114 N. W. 531, 1908. Man beyond jurisdiction of court with whom prosecutrix had previous- ly had illicit intercourse. Woodruff v. State, 72 Neb. 815, 101 N. W. 1114, 1904. 18 Specific acts of unchastity with other men may be shown. [Cal.] People v. Benson, 6 Cal. 221, 65 Am. Dec. 506, 1856. [Ill] Shirwin v. People, 69 Ill. 55, 1 Am. Crim. Rep. 650, 1873. [Mich.] Rogers v. Peo- ple, 34 Mich. 345, 1876. [N. Y.] Brennan v. People, 7 Hun, 171, 1876; People v. Abbott, 19 Wend. 192, 1838. Specific acts of lewdness, or acts men 936 to be inadmissible.’® CRIMINAL LAW. [§ 736 It has been held that to show her loose character her reputation for chastity may be attacked,” and just how bad her character was may be shown;** though this reputation must have been acquired before the act on trial.” It is therefore relevant to prove that the prosecutrix was a woman of drunken,” dissipated habits, and that she was in the of lascivious character, on the part of prosecutrix, before the alleged offense, may be shown. Brown v. Com. 102 Ky. 227, 43 S. W. 214, 1897. 19 Specific acts of unchastity on part of prosecutrix with others than defendant, inadmissible. State v. Campbell, 20 Nev. 122, 17 Pac. 620, 1888; State v. Ogden, 39 Or. 210, 65 Pac. 454, 1901. In connection with the charge under investigation, properly ex- cluded. See note in 14 L.R.A.(N.S.) 717. More especially with other men than the accused, inadmissible. See note in 14 L.R.A.(N.S.) 714. 20 [Eng.] Rex v. Barker, 3 Car. & P. 589, 1829; Rex v. Hodgson, Russ. & R. C. C. 211, 1814. [Ark.] Pleasant v. State, 15 Ark. 624, 1855. [Ga.] Camp v. State, 3 Ga. 417, 1847. [Iil.] Shirwin v. People, 69 Ill. 56, 1 Am. Crim. Rep. 650, 1873. [Kan.] State v. Eberline, 47 Kan. 155, 27 Pac. 839, 1891. [Mass.] Com. v. Kendall, 113 Mass. 210, 18 Am. Rep. 469, 1873. [N. H.] State v. Forsh- ner, 43 N. H. 89, 80 Am. Dec. 132, 1861; State v. Knapp, 45 N. H. 148, 1863. [N. Y.] Woods v. People, 55 N. Y. 515, 14 Am. Rep. 309, 1874 (but see People v. Jackson, 3 Park. Crim. Rep. 391, 1861); People v. Abbott, 19 Wend. 192, 1838. [N. C.] State v. Jefferson, 28 N. C. (6 Ired. L.) 305, 1846; State v. Henry, 50 N. C. (5 Jones L.) 65, 1857; State v. Daniel, 87 N. C. 507, 1882. [Ohio] McCombs v. State, 8 Ohio St. 643, 1858; McDermott v. State, 13 Ohio St. 332, 82 Am. Dec. 444, 1862; Pratt v. State, 19 Ohio St. 277, 1869. This course was taken in R. v. St. Leonards, London (London Law Times, May 24, 31, 1844), where this defense was unsuccessfully, as a matter of fact, set up by Lord St. Leonards to an indictment for as- sault with an intent to commit rape. General reputation only can be shown, not reputation for virtue. State v. McDonough, 104 Iowa, 6, 73 N. W. 357, 1897; State v. Hairston, 121 N. C. 579, 28 S. E. 492, 1897. 21.Neace v. Com. 23 Ky. L. Rep. 125, 62 S. W. 733, 1901. Bad character of parents cannot be shown. State v. Anderson, 19 Mo. 241, 1885. See Jenkins v. State, 60 Tex. Crim. Rep. 236, 1381 S. W. 542, 1910. Birth of illegitimate child, prior to the act alleged, may be shown to prove general reputation for chasti- ty. Wilson v. State, 17 Tex. App. 525, 1884. Nymphomania — Reputation ot mother and sisters and other blood female relatives for chastity, or as lewd people with strong sexual pas- sions, cannot be shown in order to establish the allegation that the prosecutrix is a nymphomaniac. Jenkins v. State, 60 Tex. Crim. Rep. 236, 131 S. W, 542, 1910. See State v. Anderson, 19 Mo, 241, 1853. Venereal disease, evidence not ad- missible to discredit prosecutrix. State v. Smith, 18 S. D. 341, 100 N. W. 740, 1904. 22 State v. Forshner, 43 N. H. 89, 80 Am. Dec. 132, 1869; State v. Taylor, 57 S. C. 483, 76 Am. St. Rep. 575, 35 S. E. 729, 1900. Reputation must be that borne be- fore the act complained of, not that acquired afterward. State v. Forsh- ner, 43 N. H. 89, 80 Am. Dec. 182, 1861. 23 Unlawful sale of liquor by pros- cutrix cannot be shown. Com, v. McDonald, 110 Mass: 405, 1872; State v. Forshner, supra; Brennan v. People, 7 Hun, 171, 1876. § 737] RAPE. 937 habit of receiving men into her dwelling house for promiscuous imtercourse.”4 VIII. Preaprnes.! § 737. Necessary allegations in indictment. An indict- ment or an information charging the crime of rape is governed, as to validity and sufficiency, by the same rules which govern indictments and informations generally charging crimes. The first general rule is that it shall allege with certainty and pre- cision each fact and circumstance necessary to constitute the crime.” Force and want of consent being elements of the 24 Woods v. People, 55 N. Y. 515, 14 Am. Rep. 309, 1874. Evidence to show bad character of place where act committed.—Evi- dence is not admissible to show the bad character of the place where the rape was committed. State v. Duffy, 124 Mo. 1, 27 S. W. 358, 1894. For the purpose of identification, prior sexual assaults by defendant may be put in evidence for the prosecution. See State v. Walters, 45 Iowa, 389, 1877; and see Whar- ton, Crim. Ev. § 47. Improper propositions by accused. —It has been ruled that the prose- cutrix may be asked whether the ac- cused, prior to the act, had not made improper propositions to her. People v. Manahan, 32 Cal. 68, 1867; Reg. v. Rearden, 4 Fost. & F. 76, 1864. Long silence of prosecutrix—Pre- sumption of law.—As has been al- ready seen, the inference arising from a long silence on the part of the prosecutrix is a presumption not of law, but of fact, to be passed on by the jury. Supra, § 724; Wharton, Crim. Ev. §§ 376-384. Prosecution may introduce rebut- ting evidence to sustain the prose- cutrix’s character for chastity. People v. Tyler, 36 Cal. 522, 1868; McCain v. State, 57 Ga. 390, 1876; and see Turney v. State, 8 Smedes & M. 104, 47 Am. Dec. 74, 1847, where this was permitted as evidence in chief. Prosecutrix’s husband’s declara- tions are inadmissible to impeach her. See McCombs v. State, 8 Ohio St. 648, 1858; and so as to evidence of the bad character of her parents. State v. Anderson, 19 Mo, 241, 1853. 1See Wharton, Precedents, 186 et seq., 253 et seq., for Forms. 2Indictment need not follow, ipsissimis verbis, the language of tne common-law definition; but where these words are not used, their substitutes must be synonymous or equivalent, and apt for the expres- sion of the legal idea involved in the definition. State v. Williams, 32 La. Ann. 335, 36 Am. Rep. 272, 1880. Indictment failing to allege the intercourse was by force or against the will or without the consent of the female is fatally defective. [Ala.] Sims v. State, 146 Ala. 109, 41 So. 413, 1906. [Ariz.] Trimble v. Territory, 8 Ariz. 281, 71 Pac. 934, 1903. [Ark.] Beard v. State, 79 Ark. 293, 95 S. W. 995, 97 S. W. 667, 9 A. & E. Ann. Cas. 409, 1906. [La.] State v. Porter, 48 La. Ann. 1539, 21 So. 125, 1896. [Minn.] State v. Vorey, 41 Minn. 134, 43 N. W. 324, 1889. [Neb.] Hubert v. State, 74 Neb. 220, 104 N. W. 276, 106 N. W. 774, 1905. [N. C.] State v. Jim, 12 N. C. (1 Dev. L.) 142, 1826; State v. Marsh, 132 N. C. 1000, 43 S. E. 828, 1384 N. C. 184, 67 L.R.A. 179, 47 8. E. 6, 1903. [Okla.] Vickers v. United States, 1 Okla. Crim. Rep. 452, 98 Pac. 467, 1908. [Tex.] Brinster v. State, 12 Tex. App. 612, 1882. 938 CRIMINAL LAW. [§ 737 crime, an indictment charging rape should allege the act was done forcibly, against the will, and without the consent of the woman,® except where the victim is a child of tender years and was forcibly ravished.*| Where the indictment alleges ac- cused did “feloniously ravish and carnally know” a woman, it is not necessary that there should be added the words “against her will.” ® Crime being purely statutory, and having no relation to the common-law crime of rape, it is, as a general rule, sufficient in the indictment to charge the defendant with the acts coming fully within the statutory description of the offense, in the substantial words of the statute, without further expansion of the matter. But it is not necessary that the charge of the crime be in the words of the statute. It is sufficient if it sets out in technical language all the essential ingredients which go to make up the crime.” Under statute, in the absence of a provision requiring it, it is not necessary to set out in the in- 8 [Ala.] State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79, 1844. [Ark.] Beard v. State, 79 Ark. 293, 95 S. W. 995, 97 S. W. 667, 9 A. & E. Ann. Cas. 409, 1906. [Iowa] State v, Austin, 109 Iowa, 118, 80 N. W. 308, 1899. [Miss.] Bonner v. State, 65 Miss. 293, 3 So. 663, 1887; Alfred v. State, — Miss. —, 32 So. 54, 1902. [N. C.] State v. Jim, 12 N. C. (1 Dev. L.) 142, 1826; State v. Powell, 106 N. C. 635, 11 S. E. 191, 1890. [Ohio] Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355, 1861. [Tex.] Langan v. State, 27 Tex. App. 498, 11S. W. 521, 1889. See post, § 743. 4Murphy v. State, 120 Ind. 115, 22 N. E. 106, 1889. 5 Com. v. Fogerty, 8 Gray, 489, 69 Am. Dec. 264, 1857; Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, 1870. Indictment for rape alleging ac- cused “violently and against her will feloniously did ravish and carnally know” the woman is_ sufficient, [Eng.] Reg. v. Allen, 9 Car. & P. 521, 2 Moody, ©. C. 179, 1840. {Mass.] Com. v. Fogerty, 8 Gray, 489, 69 Am. Dec. 264, 1857. [Pa.] Harman.v. Com. 12 Serg. & R. 69, 1824. 6 Dickhaut v. State, 85 Md. 451, 36 L.R.A. 765, 60 Am. St. Rep. 32, 37 Atl. 21, 1897; State v. William- son, 22 Utah, 248, 83 Am. St. Rep. 780, 62 Pac. 1022, 1900. Indictment following language of statute generally, sufficient. [Ala.] Ben v. State, 22 Ala. 9, 58 Am. Dec. 234, 1853; Myers v. State, 84 Ala. 11, 4 So, 291, 1887. [Cal.] People v. Rozelle, 78 Cal. 84, 20 Pac. 36, 1888; People v. McKenna, 81 Cal. 158, 22 Pac. 488, 1889. [N. Y.] People v. King, 110 N. Y. 418, 1 L.R.A. 298, 6 Am. St. Rep. 389, 18 N. E. 245, 1888. [N. C.] State v. Watkins, 101 N. C. 702, 8S. E. 346, 1888. [Or.] State v. Light, 17 Or. 358, 21 Pac. 132, 8 Am. Crim. Rep. 326, 1889. [W. Va.] State v. Sparks, 30 W. Va. 101, 3 S. E. 40, 1887. 7Com. v. Fogerty, 8 Gray, 489, 69 Am. Dec. 264, 1857. Such exceptions and provisions only need be negatived as are de- scriptive of the offense charged. State v. Bouknight, 55 S. C. 353, 74 Am. St. Rep. 751, 33 S. E. 451, 1899. § 738} RAPE, 939 dictment that the woman ravished was not the wife of the de- fendant,® that she is a human being. Charging same offense in different counts is permissible? where they are the same general character, and are manifestly inserted in good faith by the pleader for the purpose of meeting the various aspects of the case, in which case the court will not quash the indictment or require the prosecution to elect upon which count the defendant is to be tried.¥ Charging in the disjunctive, offenses of the same character and subject to the same punishment, while it is bad pleading, will support a verdict of guilty.” § 738. —Age of female need not be averred. Age need not be averred, either in respcct to the woman,! nor to the man, so as to exclude impuberty,” unless, in the former case, the pro- 8 See post, § 740. 9 [Ark.] Anderson v. State, 34 Ark. 257, 1878. [Minn.] State v. Ward, 35 Minn. 182, 28 N. W. 192, 1886. [N. C.] State v. Tom, 47 N. C. (2 Jones, I.) 414, 1855. 10 State v. Doyle, 15 R. I. 527, 9 Atl. 900, 1887. 11 People v. Aiken, 66 Mich. 460, 11 Am. St. Rep. 512, 33 N. W. 84, 7 Am. Crim. Rep. 345, 1887; State v. Shores, 31 W. Va. 491, 13 Am. St. Rep. 875, 7 S. E. 413, 1888. 12 [Ala.] McGuff v. State, 88 Ala. 147, 16 Am. St. Rep. 25, 7 So. 35, 1889. [Neb.] Martin v. State, 30 Neb. 507, 46 N. W. 621, 1890. [Miss.] King v. State, 66 Miss. 502, 6 So. 188, 1889. [Tex.] Reagan v. State, 28 Tex. App. 227, 19 Am. St. Rep. 833, 12 S. W. 601, 1889. Indictment for criminal assault following the statute, and charging that the accused “did carnally know, or abused in the attempt to carnal- ly know, a girl (naming her) under the age of ten years,” is sufficient. McGuff v. State, 88 Ala. 147, 16 Am. St. Rep. 25, 7 So. 35, 1889. See Myers v. State, 84 Ala. 11, 4 So. 291, 1887. 1 Wharton, Precedents, 186; State v. Storkey, 63 N. C. 7, 1868; State v. Johnston, 76 N. C. 209, 1877; State v. Staton, 88 N. C. 654, 1883. See monographic note, in 80 Am. Dec. 373. 2([Cal.] People v. AhYek, 29 Cal. 575, 1866; People v. Wessel, 98 Cal. 352, 33 Pac. 216, 1893. [Ill] Sutton v. People, 145 Ill. 286, 34 N. E. 420, 1893. [Mass.] Com. v. Scannal, 11 Cush, 547, 1853; Com. v. Sugland, 4 Gray, 7, 1855. [Minn.] State v. Ward, 35 Minn. 182, 28 N. W. 192, 1886. [Or.] State v. Knighten, 39 Or. 65, 87 Am. St. Rep. 647, 64 Pac. 866, 1901. [Tex.] Wood v. State, 12 Tex. App. 174, 1882; Cornelius v. State, 13 Tex. App. 349, 1883. [Utah] United States v. Cannon, 4 Utah, 127, 7 Pac. 369, 1885. [Vt.] State v. Sullivan, 68 Vt. 540, 35 Atl. 479, 1896. See Wharton, Precedents, 186. Compare: Schramm v. People, 220 Ill. 16, 77 N. E. 117,5 A. & E. Ann. Cas. 111, 1906; Wistrand v. People, 213 Ill. 72, 72 N. E. 748, 1904. Age of defendant need not be al- leged in an indictment under a stat- ute providing that if any person over a stated age should carnally know a female child under a stated age he shall be guilty of rape. State v. Knighten, 39 Or. 68, 87 Am. St. Rep. 647, 64 Pac. 866, 1901. —Illinois rule under similar stat- ute requires statement of age of de- fendant. Schramm v. People, 220 Il. 16, 77 N. E. 117, 5 A. & E. Ann. Cas. 111, 1906. Defendant beneath age of capacity 940 CRIMINAL LAW. [§ 738 ceeding be on a statute relative to abuse of female children under a specified age.* Hence, as will be seen, in the statutory offense of abusing infant children, age is an essential averment,* though it is not necessary in an indictment for rape, under such a statute, to aver age. may be rejected as surplusage.® 5 When improperly used, the limitation Nor, where there is a statute fixing a specific penalty on the abuse of a woman under a cer- tain age, is it necessary, in the indictment for rape, to aver that the woman was above that age.” § 739. —Sex of victim need not be averred. Sex need not be specifically averred.’ ment for a rape charged that the defendant, is a matter of defense. [Mass.] Com. v. Seannal, 11 Cush. 547, 1853. [Minn.] State v. Ward, 35 Minn. 182, 28 N. W. 192, 1886. [Or.j State v. Knighten, 39 Or. 65, 87 Am. St. Rep. 647, 64 Pac. 866, 1901. [Tex.] Davis v. State, 42 Tex. 226, 1875; Greenlee v. State, 4 Tex. App. 346, 1878; Word v. State, 12 Tex. App. 174, 1882; Cornelius v. State, 13 Tex. App. 349, 1883. 3 State v. Erickson, 45 Wis. 86, 3 Am. Crim. Rep. 336, 1878. Age of consent need not be al- leged.—Indictment is not bad for failure to allege prosecutrix was over age of consent, as the crime may be committed upon a female of any age. Jones v. Com. 30 Ky. L. Rep. 288, 97 S. W. 1118, 1906. Carnal abuse, etc., of infant child; age should be alleged to bring the crime within a statute punishing such a crime. State v. Worden, 46 Conn. 349, 33 Am. Rep. 27, 1878; State v. Erickson, 45 Wis. 86, 3 Am. Crim. Rep. 336, 1878. Child below age of consent forcibly ravished; indictment need not allege her age. State v. John- son, 100 N. C. 494, 6 S. E. 61, 1888. See Bonner v. State, 65 Miss. 293, 3 So. 663, 1887. As to assault upon child under age of consent. See note in 80 Am. Dec. 363, 364, 373, 374. Where by the statute carnal knowledge of a child under the age of seven is made a felony, and by another statute the harboring or Thus, in a case where an indict- “with force and using a male or female under the age of eighteen for the purpose of sexual intercourse is made a felony, one who has sexual intercourse with a female over seven and under eighteen may be prosecuted for rape or under the statute for using a female for purposes of intercourse. Sigerella v. State, — Del. —, 74 Atl. 1081, 1910. 4Wharton, Precedents, 187, 190. Infra, § 751. Where age is not averred proof of consent is a defense. State v. Wheat, 63 Vt. 673, 22 Atl. 720, 1891. 5Com. v. Sugland; 4 Gray, 7, 1855; State v. Houx, 109 Mo. 654, 32 Am. St. Rep. 686, 19 S. W. 35, 1892. 6Infra, § 788; Mobley v. State, 46 Miss. 501, 1872. 7([Conn.] State v. Gaul, 50 Conn. 578, 1883. [Tll.] Sutton v. People, 145 Tl. 279, 34 N. E. 420, 1898. [Mass.] Com. v. Sugland, 4 Gray, 7, 1855. 1[Ark.] Anderson v. State, 34 Ark. 257, 1879; Warner v. State, 54 Ark. 660, 17 S. W. 6, 1891. [CaL] People v. Wessel, 98 Cal. 352, 33 Pac. 216, 1893. [Ind.] Greer v. State, 50 Ind. 267, 19 Am. Rep. 709, 1 Am. Crim. Rep. 643, 1875. [Kan.] Tillson v. State, 29 Kan. 452, 1883. [Mass.] Com. v. Sullivan, 6 Gray, 477, 1856. [Mo.] State v. Ham- mond, 77 Mo. 157, 1882. [Tex.] Cornelius v. State, 13 Tex. App. 349, 1883. § 741] RAPE, 941 arms, etc., the said Mary Ann Taylor, etc., etc., then and there violently and against her will, feloniously did ravish and car- nally know,” the court will infer that Mary Ann Taylor was a female.® § 740. —Sex of defendant need not be alleged. An in- dictment for rape need not specify the sex of the defendant.’ The allegation that the accused did commit the crime of rape carries with it the inference (1) that accused is a male person, and (2) that he is capable of having committed the offense charged.? Where the offense is statutory, and the word “male” does not appear in the statute, it being well known that no one but a male person could commit the specific offense of rape, and none but a male person could be indicted therefor as a principal in the first degree, the court will construe the statute to mean that a male only could consummate the offense named therein; and an allegation that the accused is a male person need not be made.® § 741. —Need not allege nonmarriage of parties. An indictment for rape need not allege that the female outraged was not the wife of the defendant. 2 [Iowa] State v. Hussey, 7 Iowa, 409, 1858. [Mo.] State v. Ham- mond, 77 Mo. 157, 1882. [N. C.] State v. Farmer, 26 N. C. (4 Ired. L.) 224, 1844. [Va.] Taylor v. Com. 20 Gratt. 825, 1871. “Francis” instead of “Frances” will not vitiate an indictment; where the pronoun “her” is used, will sufficiently indicate the sex of the victim. State v. Hammond, 77 Mo. 157, 1882. 1State v. Williams, 32 La. Ann. 335, 36 Am. Rep. 272, 1880; United States v. Cannon, 4 Utah, 122, 7 Pac. 369, 1885; State v. Williamson, 22 Utah, 248, 83 Am. St. Rep. 780, 62 Pac. 1022, 1900. 2State v. Williams, 32 La. Ann. 335, 86 Am. Rep. 272, 1880. 8 State v. Williamson, 22 Utah, 248, 83 Am. St. Rep. 780, 62 Pac. 1022, 1900. 1[Cal.] People v. White, 34 Cal. 183, 1867; People v. Estrada, 53 Cal. 600, 1879; People v. Murray, 67 Cal. 103, 7 Pac. 178, 6 Am. Crim. Without such an averment, Rep. 54, 1885. [Kan.] State v. White, 44 Kan. 514, 25 Pac. 33, 1890. [Mass.] Com. v. Scannal, 11 Cush. 547, 1853; Com. v. Fogerty, 8 Gray, 489, 69 Am. Dec. 264, 1857. [Mont.] State v. Williams, 9 Mont. 179, 23 Pac. 335, 1890. [Utah] People v. Colton, 2 Utah, 457, 1880; State v. Fairbanks, 7 Utah, 3, 24 Pac. 558, 1890; State v. McDonald, 14 Utah, 173, 46 Pac. 872, 1896; State v. Williamson, 22 Utah, 248, 83 Am. St. Rep. 780, 62 Pac. 1022, 1900. [Wash.] State v. Halbert, 14 Wash. 306, 44 Pac. 538, 1896. In Ohio it is required that an in- dictment in an ordinary case of rape must aver that the woman was not the daughter or sister of the accused, but this is under a statute which provides a severer penalty for the crime when committed upon a daughter or sister. Howard v. State, 11 Ohio St. 328, 1869. See infra, § 2096. 942 CRIMINAL LAW. [§ 741 however, there can be no conviction under a count for adultery or fornication.” § 742. —Allegation of “assault” not necessary. The al- legation of “assault” is said to be unnecessary ;? but without it there cannot be a conviction for the assault. When it is in- serted there may be, under the present practice, a conviction of the assault.” § 743. —“Ravish” and “forcibly” are essential. words “ravish,”? and “forcibly* and against the will, 2Com. v. Murphy, 2 Allen, 163, 1861. Compare: Com. v. Parker, 146 Pa. 348, 23 Atl. 323, 1892. 1 Reg. v. Allen, 2 Moody, C. C. 179, 9 Car. & P. 521, 1840; O’Connell v. State, 6 Minn. 279, Gil. 190, 1861. 2Infra, § 746. 1[N. Y.] Gouglemann v. People, 3 Park. Crim, Rep. 15, 1855. [Tex.] Davis v. State, 42 Tex. 226, 1875; Gibson v. State, 17 Tex. App. 574, 1885. [Va.] Christian v. Com. 23 Gratt. 954, 1873. As to use of word “ravish” in in- dictment, and what it is held to be equivalent to, see note in 9 A. & E. Ann. Cas. 417. Under Arkansas statute indict- ment must charge the act committed against the will of prosecutrix; but charging defendant “unlawfully, wil- fully, feloniously, forcibly, and with malice aforethought, did make an assault,” on the prosecutrix, and “unlawfully, wilfully, feloniously, forcibly, and of his malice afore- thought, did ravish and carnally know,” is sufficient to sustain a judgment of conviction, whether or not it would have been good as against a demurrer or a motion in arrest of judgment. Beard v. State, 79 Ark. 293, 95 S. W. 995, 97 S. W. 667, 9 A. & E. Ann. Cas. 409, 1906. Under Missouri statute. State v. Meinhart, 73 Mo. 562, 1881. Under Nebraska statute. Palin v. State, 38 Neb. 862, 57 N. W. 743, 1894, Under Texas statute—“Did rape” is not equivalent to “ravish.” Hewitt v. State, 15 Tex. App. 80, 1883, The 8 have 2In some states it is held that, inasmuch as the word “ravish” im- plies force, the words “forcibly” or “by force” may be omitted. [Mass.] Com. v. Fogerty, 8 Gray, 489, 69 Am. Dec. 264, 1857. [N. C.] State v. Johnson, 67 N. C. 55, 1872. [Tex.] Gibson v. State, 17 Tex. App. 574, 1885. [Va.] Com. v. Bennett, 2 Va. Cas. 235. “Violently” may be substituted for “forcibly.” State v. Williams, 32 La. Ann. 335, 36 Am. Rep. 272, 1881. “Violently” not synonymous with “by force.” State v. Blake, 39 Me. 322, 1855. 3 Wharton, Crim. Pl. & Pr. § 263. See [Me.] State v. Blake, 39 Me. 322, 1855. [Mass.] Com. v. Fogerty, 8 Gray, 489, 69 Am. Dec. 264, 1857; Com. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, 1870. [N. C.] State v. Jim, 12 N. C. (1 Dev. L.) 142, 1845. [Tex.] Elschlep v. State, 11 Tex. App. 301, 1881; Cornelius v. State, 13 Tex. App. 349, 1883. “Against her will and consent” is equivalent to “without her consent.” State v. Jackson, 46 La. Ann. 547, 15 So. 402, 1894. —In Georgia practice, see McMath v. State, 55 Ga. 303, 1875. —In Indiana, see Polson v. State, 137 Ind. 519, 35 N. E. 907, 1893. —In Louisiana, in State v. Wil- liams, 32 La. Ann. 335, 36 Am. Rep. 272, 1880, it was held that ‘“‘violent- ly” could be substituted for “forci- bly.” —Under the laws of Maine, the act necessary to constitute the crime of rape must be done “by force,” and these words, or some- § 743] RAPE. 943 been held necessary in the indictment;* though in Pennsyl- vania it was held that the omission of the latter words was not fatal when it was charged that the defendant “feloniously® did ravish and carnally know her;’* and it would seem that “rav- ish” implies force.” “Unlawfully” may be dispensed with.* Intercourse with child under statutory age, the statute, pro- viding punishment, using word “takes,” the meaning of the word is not confined to a taking by force; it may be by artifice, thing equally significant, cannot be dispensed with in an indictment. The wora “violently” does not ful- fil the demands of the statute. State v. Blake, 39 Me. 322, 1855. As to carnal knowledge of child it is otherwise. State v. Black, 63 Me. 210, 1874. —In New Jersey it is not neces- sary to aver in the indictment that it was without the consent of the infant. Farrell v. State, 54 N. J. L. 416, 24 Atl. 723, 1892. —In Texas, see Williams v. State, 1 Tex. App. 90, 28 Am. Rep. 399, 1876; Gutierrez v. State, 44 Tex. 587, 1876. —In Wisconsin, State v. Mueller, 85 Wis. 203, 55 N. W. 165, 1893. 4Use of the word “ravish” is not essential to the validity of an in- dictment, it implying no more than that the act was done forcibly and against the will of the female. Palmer v. State, 121 Tenn. 465, 118 S. W. 1022, 1908. 5 As to the necessity of using the word “feloniously” in an indictment charging rape, see note in 7 A. & E. Ann. Cas. 263. Under the common law, and statutes which are merely declara- tory of the common-law offensé, an indictment for rape which does not charge that it was feloniously com- mitted is fatally defective. See [Ky.] Hall v. Com. 15 Ky. L. Rep. 856, 26 S. W. 8, 1894. [La.] State v. Porter, 48 La. Ann. 1539, 21 So. 125, 1896. [Miss.] Hays v. State, 57 Miss. 783, 1880. [N. C.] State v. Marsh, 132 N. C. 1000, 48 8. E. 828, 134 N. C. 184, 67 L.R.A. 179, 47 S. E. 6, 1908. [Pa.] Harman v. Com. 12 Serg. & R. 69, 1824. Under statute requiring indict- ment to contain a statement in or- dinary and concise language, the facts constituting the offense char- ged, and requiring such statement to be made in a manner to enable u person of common understanding to know what is intended, it is not nec- essary to allege that the act was feloniously done. See [Mass.] Com. v. Scannel, 11 Cush. 547, 1853. {Okla.] Asher v. Territory, 7 Okla. 188, 54 Pac. 445, 1898. [Wis.] Brown v. State, 127 Wis. 193, 106 N. W. 536, 7 A. & E. Ann. Cas, 258, 1906. 6Harman v. Com. 12 Serg. & R. 69, 1824. See Com. v. Bennett, 2 Va. Cas. 235, 1820; Wharton, Crim. Pl. & Pr. § 261. 7Com. v. Fogerty, 8 Gray, 489, 69 Am. Dec. 264, 1857; S. P., State vy. Johnson, 67 N. C. 55, 1872. The word “ravish” implies both force and want of consent. Alex- ander v. State, 58 Tex. Crim. Rep. 621, 127 S. W. 189, 1910. —Presupposes force and is indis- pensable in a common-law indict- ment for rape. Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217, 1908. 8 Weinzorpflin v. State, 7 Blackf. 186, 1844. See Wharton, Crim. Pl. & Pr. § 269. In Dakota “feloniously” may be omitted. Territory v. Godfroy, 6 Dak. 46, 50 N. W. 481, 1888. In Kentucky “feloniously” is nec- essary. See Hall v. Com. 15 Ky. L. Rep. 856, 26 S. W. 8, 1894. “Maliciously and without lawful justification,” held to be synonymous with “unlawfully,” in Com. v. Thompson, 108 Mass. 463, 1871. 944 CRIMINAL LAW. [§ 743 cajolery, craft, persuasion, promise, or by the voluntary sur- render of the person taken.® § 744. Two defendants may be joined as principals. Two defendants may be joined as principals in rape;* and an indictment has been sustained which in one count charges G as principal in the first degree, and W as present, aiding and abetting, and in another count charges W as principal in the first degree, and G as aiding and abetting.” § 745. Rape may be joined with assault. It is the prac- tice to join a count for an assault with an intent to commit the rape with a count for rape itself,’ and a general verdict of guilty 9Com. v. Walker, 34 Pa. Super. Ct. 14, 1907. 1R. v. Burgess, 1 Russell, Crimes, 687; Strang v. People, 24 Mich. 1, 1871. See Reg. v. Crisham, Car. & M. 187, 1841; Kessler v. Com, 12 Bush, 18, 1876; Ackerson v. People, 124 Ill. 563, 16 N. E. 847, 1888; State v. Duffy, 124 Mo. 1, 27 S. W. 358, 1894. Acts constituting the offense char- ged must be set out. See State v. Vorey, 41 Minn. 134, 48 N. W. 324, 1889; State v. Fernald, 88 Iowa, 553, 55 N. W. 534, 1893. 2Rex v. Gray, 7 Car. & P. 164, 1835. See Folke’s Case, 1 Moody, C. C. 354, 1831; State v. Jordan, 110 N. C. 491, 14 S. E. 752, 1892. 1 Wharton, Crim. Pl. & Pr. §§ 285- 290. [Ala.] State v. Coleman, 5 Port. (Ala.) 32, 1837. [Cal.] People v. Taylor, 36 Cal. 255, 1868. [Ga.] Stephen v. State, 11 Ga. 225, 1855. {Md.] Burk v. State, 2 Harr. & J. 426, 1809; Stevens v. State, 66 Md. 202, 7 Atl. 254, 1886. [Miss.] Sarah v, State, 28 Miss. 267, 61 Am. Dec. 544, 1854. [N. Y.] People v. Draper, 28 Hun, 1, 1882. [Pa.] Harman v. Com. 12 Serg. & R. 69, 1824. [S. C.] State v. Montague, 2 M’Cord, L. 257, 1822; State v. Gaffney, Rice, L. 431, 1839; State v. Nelson, 14 Rich. L. 169, 94 Am. Dec. 130, 1867. [W. Va.] State v. Shores, 31 W. Va. 491, 13 Am. St. Rep. 875, 7 8S. E. 413, 1888. See also notes in 58 Am. Dec. 238-- 250; 80 Am. Dec. 372; 92 Am. Dec. 661-665; and 13 Am. St. Rep. 886. At common law several felonies or misdemeanors could be joined in sev- eral counts of the same indictment, but a felony and a misdemeanor could not be so joined. State v. Fitzsimon, 18 R. I. 236, 49 Am. St. Rep. 766, 27 Atl. 446, 9 Am. Crim. Rep. 348, 1893. See note in 49 Am. St. Rep. 771. By statutory provisions in some states, two offenses committed by the same person, one a felony and the other a misdemeanor, may be in- cluded in the same indictment, where they are of the same general nature and belong to the same family of crimes, the mode of trial and the nature of the punishment being the same. State v. Fitzsimon, 18 R. I. 236, 49 Am. St. Rep. 766, 27 Atl. 446, 9 Am. Crim. Rep. 348, 1893. Several offenses being embraced in the same general definition of the crime and punished in the same manner, they may be charged in the same count of the indictment. La- roe v. State, 30 Tex. App. 374, 17 8. W. 934, 1891. As to joining other counts, see [Ala.] McGuff v. State, 88 Ala. 147, 16 Am. St. Rep. 25, 7 So. 35, 1889. [Mo.] State v. Wray, 109 Mo. 594, 19 S. W. 86, 1892; State v. Houx, 109 Mo. 654, 32 Am. St. Rep. 686, 19 S. W. 35, 1892. [Tex.] Thomp- son v. State, 33 Tex. Crim. Rep. 472, 26 S. W. 987, 1894. In Mississippi a count charging that the prisoner, a slave, “with force and arms, in the county afore- said, in and upon one A (then and there being a free white woman), fe- loniously did make an assault, and § 746] carries the greater offense.” RAPE. 945 But the allegation of an assault is usually made in the count for rape. § 746. May be conviction of minor offenses. How far the defendant may be convicted of minor offenses in a count for rape is elsewhere considered.! her, the said A, then and there fe- loniously did attempt to ravish and carnally know, by force and against her will, and in said attempt did forcibly choke and throw down the said A,” is not bad for duplicity or uncertainty. Green v. State, 23 Miss. 509, 1852. Wharton, Crim. Pl. & Pr. § 907. In New Jersey. See Farrell v. State, 54 N. J. L. 416, 24 Atl. 723, 1892. In Pennsylvania an _ indictment may properly charge in three counts, assault and battery, assault with in- tent to ravish, and statutory rape and bastardy. Com. v. Lewis, 140 Pa. 561, 21 Atl. 501, 1891; Com. v. Parker, 146 Pa. 343, 23 Atl. 323, 1892. 2Cook v. State, 24 N. J. L. 845, 1855. Indictment seemingly charging a mere assault, but substantially char- ging rape under a statute, will be held good after conviction for the graver offense. State v. Horne, 20 Or. 485, 26 Pac. 665, 1891. An attempt may be charged di- rectly without charging rape in the indictment. West v. State, — Tex. Crim. Rep. —, 21 8S. W. 686, 1893. See further as to attempt, Proctor v. Com. 14 Ky. L. Rep. 248, 20 S. W. 213, 1892. 1 Wharton, Crim. Pl. & Pr. § 249. Infra, § 840; Rex v. Dawson, 3 Starkie, 62, 1820; Com. v. Fisch- blatt, 4 Met. 354, 1842; State v. Perkins, 82 N. C. 681, 1880. As to conviction of lower or dif- ferent degree than the principal crime charged, see note in 21 L.R.A. (NS.)° 1-28. As to conviction of rape under an indictment for murder, see Ex parte Dela, 25 Nev. 346, 83 Am. St. Rep. 603, 60 Pac. 217, 15 Am. Crim. Rep. 382, 1890. See also Bandy v. Hehn, 10 Wyo. 167, 67 Pac. 979, 15 Am. Crim. Rep. 395, 1901. Crim. L. Vol. I—60. At common law, in con- In California while one may be convicted of rape, or an attempt to commit rape, upon a female under the age of statutory consent, not- withstanding her actual consent, yet, under like circumstances, he cannot be guilty of an assault to commit rape, because the latter offense im- plies resistance upon the part of the person assaulted. People v. Verde- green, 106 Cal. 211, 46 Am. St. Rep. 235, 39 Pac. 607, 1895. In Georgia, under statute, there can be no conviction of fornication on indictment for rape. Speer v. State, 60 Ga. 381, 1878. In Indiana on indictment charging rape accused may be convicted of as- sault. Jones v. State, 118 Ind. 41, 20 N. E. 685, 1888. In Iowa, under statute, there can be convictions of assault. State v. Pennell, 56 Iowa, 29, 8 N. W. 686, 1881; State v. Jay, 57 Iowa, 164, 10 N. W. 348, 1881; State v. Kyne, 86 Iowa, 616, 53 N. W. 420, 1892. In Kansas, though information charges rape and an unsuccessful at- tempt is proved, there may be a conviction for the attempt. Re Lloyd, 51 Kan. 501, 33 Pac. 307, 1893; State v. Frazier, 53 Kan. 87, 42 Am. St. Rep. 274, 36 Pac. 58, 1894; State v. Brown, 54 Kan. 71, 87 Pac. 996, 1894. In-Massachusetts a defendant may be convicted of incest on an indict- ment for rape, see Com. v. Good- hue, 2 Met. 198, 1841. Such not the view generally ac- cepted, however. See State v. Thomas, 53 Iowa, 214, 4 N. W. 908, 1880. Infra, § 2098. In Michigan, under statute, there can be conviction of assault. Hall v. People, 47 Mich. 636, 11 N. W. 414, 1882. In Minnesota there can be a con- viction for assault. State v. Bagan, 41 Minn. 285, 43 N. W. 5, 1889. In Nevada on indictment for rape, 946 CRIMINAL LAW. [§ 746 sequence of the differences between felonies and misdemeanors as to both procedure and punishment, there could be no con- viction of assault on an indictment for rape,* but this rule is no longer sustainable on principle in jurisdictions in which the distinction between felonies and misdemeanors has ceased to exist, and in many jurisdictions is abolished by statute.* And the general practice now is to sustain a verdict for assault on such an indictment.* TX. Assauit wits Intent to Ravisu.} § 747. Essential elements. In order to constitute an as- sault to ravish, and to justify a conviction therefor, the indict- ment must allege and the evidence must show the existence of all the essential elements to the crime. If the accused is an infant below the statutory age of presumption,” capacity must be alleged and shown;®* but it seems it is otherwise where the accused may be found guilty of an assault with intent to commit rape, or of a simple assault, upon the ground that these minor offenses are included in the crime of rape. State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754, 1876; State v. Lindsey, 19 Nev. 47, 3 Am. St. Rep. 776, 5 Pac. 822, 1885; Ex parte Curnow, 21 Nev. 39, 24 Pac. 430, 1890. In Texas there can be no convic- tion for assault. West v. State, — Tex, Crim. Rep. —, 21 S. W. 686, 1893; Russell v. State, 33 Tex. Crim. Rep. 424, 26 8. W. 990, 1894. In Virginia, under an indictment for rape, the jury may convict for an attempt. Glover v. Com. 86 Va. 382, 10 S. E. 420, 1889. In Wisconsin there can be no con- viction, under the Wisconsin statute, of fornication on an indictment for rape. State v. Shear, 51 Wis. 460, 8 N. W. 287, 1881. As to burglary with intent to rape, see Harvey v. State, 53 Ark. 425, 14 S. W. 645, 22 Am. St. Rep. 229, 1890; Walton v. State, 29 Tex. App. 163, 15 S. W. 646, 1890; Fields v. State, — Tex. Crim. Rep. —, 24 S. W. 907, 1894. 2Com. v. Roby, 12 Pick. 496, 1832; Braddee v. Com. 6 Watts, 530, 1837. 8[Ala.] Richardson v. State, 54 Ala. 158, 1875. [Ind.] Richie vy. State, 58 Ind. 355, 1877. [Mass.] Com. v. Drum, 19 Pick. 479, 1877; Com. v. Dean, 109 Mass. 349, 1872. [N. J.] State v. Johnson, 30 N. J. L. 185, 1864. [N. Y.] People v. Jackson, 3 Hill, 92, 1842. [Ohio] Stewart v. State, 5 Ohio, 241, 1831. See supra, §§ 33-38. 4Jbid.; Reg. v. Allen, 9 Car. & P. 521, 2 Moody, C. C. 179, 1840; Reg. v. Guthrie, L. R. 1 C. C. 241, 39 L. J. Mag. Cas. N. S. 95, 22 L. T. N.S. 485, 18 Week. Rep. 792, 11 Cox, C. C. 522, 1867. Charging as to lesser offense—It may be reversible error not to charge as to a lesser offense. State v. Dal- ton, 106 Mo. 463, 17 8. W. 700, 1891; Shields v. State, 32 Tex. Crim. Rep. 498, 23 S. W. 898, 1893; Robertson yv. State, 30 Tex. App. 498, 1891. 1As to joinder of counts, see Wharton, Crim. Pl. & Pr. §§ 245, 287, 293. As to conviction of minor offense, see Wharton, Crim. Pl. & Pr. § 742. 2 See supra, §§ 686 et seq. 8 State v. Fisk, 15 N. D. 589, 108 N. W. 485, 11 A. & E. Ann. Cas, 1061, 1906. As to the presumption regarding § 747] accused is an adult.* RAPE, 947 The assault must be such as to show a purpose to have sexual intercourse despite resistance, and the consent of the female must be wanting.® incapacity of infant and the rebut- tal of that presumption, see supra, § 686-688; also note in 11 A. & E. Ann. Cas. 1064. 4State v. Bartlett, 127 Iowa, 689, 104 N. W. 285, 1905. 5 [Ill.] Newman v. People, 223 Ill. 324, 79 N. E. 80, 1906. [Tex.] Cot- ton v. State, 52 Tex. Crim. Rep. 55, 105 8S. W. 185, 1907. [Va.] Wood- son v. Com. 107 Va. 895, 59 S. E. 1097, 1908. An attempt embraces every ele- ment of the crime except its accom- plishment. Payne v. Com. 33 Ky. L. Rep. 229, 110 S. W. 311, 1908. —Every ingredient of the crime of rape except its accomplishment must be established beyond a reasonable doubt in a prosecution for assault with intent to commit rape. New- man v. People, 223 Ill. 324, 79 N. E. 80, 1906. -~-There must be proof of force or attempted force, and an attempt to have sexual intercourse against the will of the female and notwithstand- ing her resistance. Woodson v. Com. 107 Va. 895, 59 S. E. 1097, 1908. Failure to allege want of consent, or intention to commit the act by force, does not render bad indict- ment for assault with intent to com- mit rape on female under age of consent, where it alleges an intent to ravish her. Alexander v. State, 58 Tex. Crim. Rep. 621, 127 S. W. 189, 1910. Intercourse with a female under the age of consent is a crime at common law, and, therefore, an at- tempt to commit it is a misde- meanor. Nider v. Com. 140 Ky. 684, 131 S. W. 1024, 1910. Attempt to carnally know a fe- male under the age of consent is an offense, both at common law and under statutes providing punishment for any one who shall so do. Nider v. Com, 140 Ky. 684, 131 8. W. 1024, 1910. Whether the offense of carnally The intent® of the knowing a female under the age of consent be considered a common-law offense or one created by statute, an attempt to commit it is also an of- fense and punishable. Nider v. Com. 140 Ky. 684, 131 S. W. 1024, 1910 —Consent of female under the age of consent is no defense to charge of assault with intent to commit rape. People v. Chamblin, 149 Mich. 653, 113 N. W. 27, 1907. Conviction of assault with intent to commit rape of female under the age of consent who consented to the intercourse, and did not resist the attempt. Sanders v. State, 54 Tex. Crim. Rep. 171, 112 8S. W. 938, 1908. That which amounts to an as- sault with intent to commit rape cannot be rendered otherwise by the consent of one, under the age of con- sent, to indecent liberties with her person. State v. Allison, 24 8. D. 622, 124 N. W. 747, 1910. —Want of resistance or willing- ness to commit the act is no defense to charge of assault with intent to rape a female under the age of con- sent. Ross v. State, 16 Wyo. 285, 93 Pac. 299, 94 Pac. 217, 1908. 6[Ala.] Pumphrey v. State, 156 Ala. 103, 47 So. 156, 1909. [Ark.] Curtis v. State, 89 Ark. 394, 117 S. W. 521, 1910. [Mo.] State v. Es- penschied, 212 Mo. 215, 110 S. W. 1072, 1908. [Tex.] Collins v. State, 52 Tex. Crim. Rep. 455, 107 S. W. 852, 1908; Freeman v. State, 5% Tex. Crim. Rep. 500, 107 S. W. 1127, 1908. All the force necessary to over- come any resistance that might be made. Freeman vy. State, 52 Tex Crim. Rep. 500, 107 S. W. 1127, 1908. Accused desisted before consur mation of the act, without outside interference, and without unusual resistance on the part of the female; there can be no conviction of assault with intent to rape. Rushton v. State, 58 Fla. 94, 50 So. 486, 1909. 948 CRIMINAL LAW. [§ 747 accused is an essential element in the offense,’ but in and of itself is not sufficient; there must be some overt act in addition to the intent,® because for a man to be guilty of the crime of an attempt to commit rape, he must not only have intended to use the force necessary to accomplish his purpose, notwithstand- ing the woman’s resistance, or, in the case of constructive force, to either destroy her power to resist him by the administration of liquors or drugs, or to take advantage of the fact that she was already in a condition in which either the mental or physical ability te resist is wanting,—he must, in addition to this, have done some act which, in connection with the intent, constitutes the attempt.° Force © and violence are necessary elements, and there must 7Curtis v. State, 89 Ark. 394, 117 S. W. 521, 1909. Question for jury, with what in- tent the assault was made. People v. Collins, 5 Cal. App. 654, 91 Pac. 158, 1907; State v. Neil, 13 Idaho, 539, 90 Pac. 860, 91 Pac. 318, 1907. Whether accused was guilty of as- sault with intent to rape where he did not touch the person of the ac- cused is a question for the jury. People v. Carlson, 160 Mich. 426, 136 Am. St. Rep. 447, 125 N. W. 361, 1910. 8 Payne v. Com. 33 Ky. L. Rep. 229, 110 S. W. 311, 1908. 9[Mo.] State v. Dalton, 106 Mo. 463, 17 S. W. 700, 1891. [Nev.] State v. Lung, 21 Nev. 209, 37 Am. St. Rep. 505, 28 Pac. 285, 1891. [Va.] Glover v. Com. 86 Va. 382, 10 S. E. 420, 1889; Cunningham v. Com. 88 Va. 37, 13 8. E. 309, 1891. Getting in bed with the prosecu- trix and taking improper liberties with her person while she was asleep, with the intent at the time of car- nally knowing her, but the attempt failing, defendant having made pene- tration and taken steps towards its accomplishment, with the present means of carrying it out, he may be convicted of an assault. State v. Dalton, 106 Mo. 463, 17 8S. W. 700, 1891. Instruction—Where the prosecu- tion asked only a conviction of as- sault with intent to commit rape, and the evidence showed there might have been another purpose, it is er- ror to refuse to instruct as to simple assault. Smalls v. State, 6 Ga. App. 502, 65 S. E. 295, 1909. Instruction as to assault. with in- tent to commit rape is not required or proper, where evidence shows de- fendant guilty of rape or nothing. [Ga.] Jackson v. State, 182 Ga. 546, 64 8. E. 653, 1909. [Iowa] State v. Jones, 145 Iowa, 176, 123 N. W. 960, 1909. [Tenn.] Palmer v. State, 121 Tenn. 465, 118 S. W. 1022, 1908. Where evidence justifies a convic- tion of rape, refusal to instruct the jury that defendant may be found guilty of assault is not erroneous. Vogel v. State, 138 Wis. 315, 119 N. W. 190, 1909. —Penetration not shown by the evidence, u charge with reference to assault with intent to ravish is proper. State v. Headley, 224 Mo. 177, 123 8. W. 577, 1909. —Statutory rape being charged, evidence of unsuccessful attempts at intercourse warrants instruction sub- mitting to the jury question of at- tempted rape. Perkins v. Com. —- Ky. —, 124 8. W. 794, 1910. 10Laying hands on a child and making all preparations for inter- course is suflicient to sustain as- sault with intent to commit statu- tory rape. Alexander v. State, 58 Tex. Crim. Rep. 621, 127 S. W. 189, 1910. But in the laying hands on a fe- male child under the age of consent § 748] RAPE, 949 be an intent to use such force and violence as may be necessary to overcome resistance; ™ mere solicitation is not sufficient.” Chaste character of prosecutrix may be an essential element under statutory provision,”* and her failure to make outcry “* or complaint’ may be taken into consideration by the jury; but corroboration of her testimony as to the main facts is not required by some jurisdictions in case of charge of an assault with intent to rape.?® § 748. Assault may be sustained when rape is not con- summated. A conviction on an indictment for assault with intent to ravish will be sustained when there was an assault with intent to then and there have intercourse with her without waiting to ascertain whether she will con- sent, and placing her-so the final act may be performed, there is suf- ficient to sustain an assault with in- tent to commit rape; and this is true whether the purpose was to commit the act by force or by the consent. of the female. Cromeans v. State, 59 Tex. Crim. Rep. 611, 129 S. W. 1129, 1910. One who lays hands on a female under the age of consent and en- deavors to have intercourse, but fails to accomplish his purpose, is guilty of an attempt. Nider v. Com. 140 Ky. 684, 181 8. W. 1024, 1910. Showing of an intent to use force is necessary to sustain a charge of assault with intent to commit rape. State v. Neil, 13 Idaho, 539, 91 Pac. 318, 90 Pac. 860, 1907; Warren v. State, 51 Tex. Crim. Rep. 598, 103 8. W. 888, 1907. 11 Austin v. State, — Miss. —. 48 So. 817, 1909. Acts of violence or force or physic- al injury or suffering are necessary essentials of assault with intent to commit rape on one under the age of consent. State v. Allison, 24 8. D. 622, 124 N. W. 747, 1910. 12 Solicitation with expectation of consent, and laying on of hands, but without force, so as to indicate an intention to then and there have in- tercourse by force, is not sufficient to constitute an assault with intent to commit rape. Cromeans v. State, 59 Tex. Crim. Rep. 611, 129 S. W. 1129, 1910. Proof of mere request for sexual intercourse is not sufficient to sus- tain conviction of assault with in- tent to commit rape. Clark v. State, 56 Fla. 46, 47 So. 481, 1908. 18 See supra, § 731. Chastity of prosecutrix.—Under statute providing punishment for as- sault with intent to ravish a fe- male of previous chaste character, the chaste character must be alleged in the indictment. Frost v. State, 94 Miss. 104, 47 So. 898, 1909. —General reputation of the prose- eutrix for virtue and chastity may be proved by the state, when assailed by the defendant in prosecution for assault with intent to commit rape. Warren v. State, 54 Tex. Crim. Rep. 443, 114 S. W. 380, 1908. © 14 Failure to make outcry by the prosecutrix, in a prosecution for as- sault with intent to commit rape, is a circumstance to be considered against the state. Warren v. State, 54 Tex. Crim. Rep. 443, 114 8. W. 380, 1908. 15 Evidence of complaint soon after occurrence, but not the details there- of, is admissible. Pulley v. State, — Ind. —, 92 N. E. 550, 1910. See supra, § 726. 16 Fields v. State, 2 Ga. App. 41, 58 S. E. 327, 1907; Parker v. State, 3 Ga. App. 336, 59 S. E. 823, 1907; Scott v. State, 3 Ga. App. 479, 60 S. E. 112, 479, 1908. As to corroboration of prosecutrix, see supra, § 723, 950 CRIMINAL LAW. [§ 748 with intent to ravish, but the offense was not consummated,’ though at common law, if it should appear that the offense was rape, the defendant is entitled to be acquitted of the assault.’ Tf there be an assault without an intent to ravish by force, then it has been held that a conviction for assault with intent to ravish cannot be sustained.® 1[Eng.] Reg. v. Stanton, 1 Car. & K. 415, 1844. [Cal] People v. Mesa, 93 Cal. 580, 29 Pac. 116, 1892. [Ga.] Miles v. State, 93 Ga. 117, 44 Am. St. Rep. 140, 19 S. E. 805, 1894. [Ky.] Proctor v. Com. 14 Ky. L. Rep. 248, 20 S. W. 213, 1892. [Mass.] Com. v. Thompson, 116 Mass. 346, 1874. [Mich.] People v. Goulette, 82 Mich. 36, 45 N. W. 1124, 1890. [Minn.] State v. Vadnais, 21 Minn. 382, 1874. [N. ¥.] Hays v. People, 1 Hill, 351, 1841; People v. O’Con- nell, 35 N. Y. S. R. 940, 12 N. Y. Supp. 477, 1890; People v. Blute, 48 N. Y. S. R. 307, 20 N. Y¥. Supp. 455, 1892; People v. Kirwan, 51 N. Y. S. R. 299, 22 N. Y. Supp. 160, 10 N. Y. Crim. Rep. 299, 1893. [Ohio] Blan- nett v. State, 8 Ohio C. C. 313, 4 Ohio, C. D. 32, 1894. [Tex.] Porter v. State, 33 Tex. Crim. Rep. 385, 26 S. W. 626, 1894; Crew v. State, — Tex. Crim. Rep. —, 22 S. W. 973, 1893. [Wis.] State v. Mueller, 85 Wis. 203, 55 N. W. 165, 1893. See infra, § 807. 2[Ga.] Kelsey v. State, 62 Ga, 558, 1879. [Ind.] Polson v. State, 137 Ind. 519, 35 N. E. 907, 1893. [Md.] Stevens v. State, 66 Md. 202, 7 Atl. 254, 1886. [Mich.] People v. Partridge, 86 Mich. 243, 49 N. W. 149, 1891. [Mo.] State v. Lacey, 111 Mo. 513, 20 S. W. 288, 1892. [Pa.] Com. v. Parr, 5 Watts & S. 345, 1843. Contra: State v. Shepard, 7 Conn. 54, 1828; People v. Miller, 96 Mich. 119, 55 N. W. 675, 1893. The reasons given are (1) merger, a doctrine which cannot be main- tained in jurisdictions in which there is no longer any distinction between felonies and misdemeanors; and (2) variance, the offenses being so utter- ly different that there can be no conviction of one on an indictment In such case, however, if the in- for the other, unless where the for- mer is contained in the latter. Hence, while there may be a convic- tion of the minor on an indictment for the major, there can be no con- viction on proof establishing the major on an indictment for the minor. The answer to the last point is that while the prosecution cannot try for one offense an indictment charging another, it can elect to présecute for a minor offense, by discharging aggravating incidents. See infra, §§ 840, 1609; supra, §§ 33- 38; Wharton, Crim. Pl. & Pr. § 464. And see DeGroat v. People, 39 Mich, 124, 1878. As to merger of carnal knowledge of infant in rape, see State v. Wool- aver, 77 Mo. 108, 1882; State v. Ellis, 74 Mo. 385, 41 Am. Rep. 321, 1881. 3 [Eng.] Reg. v. Stanton, 1 Car. & KX. 415, 1844; Rex v. Lloyd, 7 Car. & P. 318, 1836; Reg. v. Case, 4 Cox, C. C. 220, 1 Den. C. C. 580, 1 Eng. L. & Eq. Rep. 544, Temple & M. 318, 4 New Sess. Cas. 347, 19 L. J. Mag. Cas. N. S. 174, 14 Jur. 489. [Ala.] Toulet v. State, 100 Ala. 72, 14 So. 403, 1893. [Il] Preisker v. Peo- ple, 47 Ill. 382, 1868. [Mass.] Com. v. Merrill, 14 Gray, 415, 77 Am. Dec. 336, 1860. [Mo.] State v. Priestly, 74 Mo. 24, 1881; State v. Harney, 101 Mo. 470, 14 S. W. 657, 1890: State v. Owsley, 102 Mo. 678, 15 8. W. 137, 1891. [Neb.] Garrison v. People, 6 Neb. 274, 1877. [N. Y.] People v. Kirwan, 51 N. Y. 8S. R. 299, 22 N. Y. Supp. 160, 1893. [Ohio] Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355, 1861. [Tex.] Pass- more v. State, 29 Tex. App. 241, 15 S. W. 286, 1890; Robertson v. State, 30 Tex. App. 498, 17 S. W. 1068, 1891; Shields v. State, 32 Tex. Crim, Rep. 498, 28 S. W. 893, 1893; Lewallen v. State, 33 Tex. Crim. § 749] RAPE, 951 dictment contain the allegation, there can be a conviction for an assault with intent to have an improper connection; * or in any view, there may be a conviction for assault. The form of the indictment is elsewhere considered.® § 749. Force to be inferred from circumstances. Touch- ing is not necessary to sustain such an indictment.’ The in- tent to use force, however, may be inferred from the circum- stances.? Thus, in a case where, when the prosecutrix awoke, she found the defendant in bed with her, holding her by the wrist, and he escaped when she called on the family for help, it was held that he might be convicted of an assault with intent to commit a rape.* But unless it appear that the intent was to ravish by force, the defendant must be acquitted of the ag- Rep. 412, 26 S. W. 832, 1894. [Wash.] Whitcher v. State, 2 Wash. 286, 26 Pac. 268, 1891. [Wis.] Hull v. State, 22 Wis. 580, 1868; Moore v. State, 79 Wis. 546, 48 N. W. 653, 1891, See cases cited infra, § 789. 4Wharton, Crim. Pl. & Pr. § 247. [Eng.] Reg. v. Stanton, 1 Car. & K. 415, 1844; Reg. v. Saunders, 8 Car. & P. 265, 1838; Reg. v. Wil- liams, 8 Car. & P. 286, 1838; Reg. v. Case, 1 Den. C. C. 580, 1850, 4 Cox, C. C. 220, 1 Eng. Law & Eq. Rep. 544, Temple & M. 318, 4 New Sess. Cas. 347, 14 Jur. 489. [Vt.] Newell v. Whitcher, 53 Vt. 589, 38 Am. Rep. 703, 1880. See also infra, § 797. 5 See Reg. v. Dungey, 4 Fost. & F. 99, 1864. Infra, § 840. Simple assault is included in as- sault with intent to ravish. Porter vy. State, 38 Tex. Crim. Rep. 385, 26 S. W. 626, 1894. 6 Infra, § 571. See People v. Girr, 53 Cal. 629, 1879. 1Hays v. People, 1 Hill, 351, 1841; Jackson v. State, 91 Ga. 322, 44 Am. St. Rep. 25, 18 S. E. 132, 1893. 2[Ga.] Ware v. State, 67 Ga. 349, 1881. [Mo.] State v. Shroyer, 104 Mo. 441, 24 Am. St. Rep. 344, 16 S. W. 286, 1891; State v. Whitsett, 111 Mo. 202, 19 S. W. 1097, 1892. [N. C.] State v. Mitchell, 89 N. C. 521, 1883. [Tex.] House v. State, 9 Tex. App. 58, 1880; Peterson v. State, 14 Tex. App. 162, 1883; Massey v. State, 31 Tex. Crim. Rep. 371, 20 S. W. 758, 1892; Crew v. State, — Tex. Crim. Rep. —, 22 S. W. 973, 1893. Evidence of lewd conduct with other women is not admissible to prove likelihood of his committing the offense in question. People v. Stewart, 85 Cal. 174, 24 Pac. 722, 1890. 8See [Cal.] People v. Stewart, 97 Cal. 238, 32 Pac. 8, 1893. [Ga.] Car- ter v. State, 35 Ga. 263, 1866. [Va.] Glover v. Com. 86 Va. 382, 10 S. E. 420, 1889. An attempt to ravish is indictable though the attempt was abandoned on resistance. See supra, § 226; Lewis v. State, 35 Ala. 380, 1857; Glover v. Com. 86 Va. 382, 10 S. E. 420, 1889. Indictment charging an assault and an “attempt to ravish,” etc., has been held insufficient to support « charge of an assault with intent to commit rape. State v. Ross, 25 Mo. 426, 1857. See People v. O’Neil, 48 Cal. 257, 1870. As to indictment, see, further, Joice v. State, 53 Ga. 50, 1874; Greer v. State, 50 Ind. 267, 19 Am. Rep. 709, 1 Am. Crim. Rep. 648, 1875. Intent to use force inferred from violent pursuit.—See State v. Neely, 74 N. C. 425, 21 Am. Rep. 496, 1 Am. Crim. Rep. 636, 1876, where it was held that an intent to use force might be inferred from an apparent- 952 gravated offense.* CRIMINAL LAW. [§ 749 It has been said that there can be no con- viction of assault in such case if the object was to obtain the woman’s consent.® But an attack does not cease to be an as- sault because its object is to obtain consent to something after the assault.® Administering drugs with intent to inflame the passions has been held in this country to be an assault,” though in England otherwise at common law.® The complaints of the party injured, made after the assault, are inadmissible, unless part of the res geste.° § 750. Assent bars prosecution if knowingly given by person capable of consent. The question of consent of the party injured as a defense has been already discussed in its ly violent pursuit, which, however, was overruled in State v. Massey, 86 N. C. 658, 41 Am. Rep. 478, 1882. —As sustaining State v. Massey, see Saddler v. State, 12 Tex. App. 194, 1882; Sanford v. State, 12 Tex. App. 196, 1882. See Wharton, Crim. Ev. 9th ed. § 734, Testimony of party injured not necessary to convict accused of an assault with intent to commit a rape. People v. Bates, 2 Park. Crim. Rep. 27, 1828. See also supra, § 697. 4 [Eng.] Reg. v. Stanton, 1 Car. & K. 415, 1844; Rex v. Lloyd, 7 Car. & P. 318, 1836. [Cal.] People v. Fleming, 94 Cal. 308, 29 Pac. 647, 1892. [Iowa] State v. Donovan, 61 Iowa, 369, 16 N. W. 206, 1883; State v. Jerome, 82 Iowa, 749, 48 N. W. 722, 1891. [Mass.] Com. v. Merrill, 14 Gray, 415, 77 Am. Dec. 336, 1860. [Mo.] State v. Priestly, 74 Mo. 24, 1881. [Neb.] Garrison v. People, 6 Neb. 274, 1877. [IN. C.] State v. Massey, 86 N. C. 658, 41 Am. Rep. 478, 1882. [Ohio] Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355, 1861. [Tex.] House v. State, 9 Tex. App. 53, 1880; Irving v. State, 9 Tex. App. 66, 1880; Lewallen v. State, 33 Tex. Crim. Rep. 412, 26 8. W. 832, 1894; Elam v. State, — Tex. Crim. Rep. —, 20 S. W. 710, 1892; Fields v. State, — Tex. Crim. Rep. —, 24 8. W. 907, 1894. [Wis.] Hull v. State, 22 Wis. 580, 1883. See supra, § 747. ary 5 Reg. v. Cockburn, 3 Cox, C. C. 543, 1849; People v. Fleming, 94 Cal. 308, 29 Pac. 647, 1892. 6 Infra, § 750. Ravishing child—Position making crime impossible-——In Com. v. Shaw, 184 Mass. 221, 1883, it was held that it was no defense to an indictment for an assault with intent to ravish w child, that the child was put in a position in which a rape was im- possible. See supra, § 224, 7Com. v. Stratton, 114 Mass. 303, 19 Am. Rep. 350, 1873. See People v. Carmichael, 5 Mich. 10, 71 Am. Dec. 769, 1858. Where the drug is incapable of producing the effect of destroying either mental or physical resistance, it is otherwise. State v. Lung, 21 Nev. 209, 28 Pac. 235, 1891. 8See infra, § 805. §8Veal v. State, 8 Tex. App. 474, 1880; United States v. Snowden, 2 App. D. C. 89, 9 Am, Crim. Rep. 449, 1893; supra, §§ 724, 726. In Hornbeck v. State, 35 Ohio St. 277, 35 Am. Rep. 608, 1879, where the woman was an imbecile, and could not be examined as a witness, but made certain declarations short- ly after the commission of the of- fense, it was held that such declara- tions could not by themselves prove the commission of the offense. § 750] RAPE, 953 general bearings,’ and it will be sufficient now to state the con- clusions already reached, blended with the decisions of the courts on the particular issue now before us. Volenti non fit mjuria is the maxim generally applicable; but in this relation with qualifications which will now be detailed. 1. In rape itself, of which an essential element is the want of consent of the woman, proof of consent necessarily, as has been seen, destroys one of the conditions of the offense. Hence, there can be no assault with intent to commit a rape in cases where consent, by a person capable of consenting, is given.” 2. In the statutory crime of sexual abuse of a child under ten years, nonconsent is not an essential element, and hence consent is no defense to an indictment for this offense. And at common law, to an indictment for rape of a child of such tender years as to be incapable of consenting, consent, or even assistance, is no defense.* 1Supra, § 187. ~ 2 Reg. v. Martin, 9 Car. & P. 215, 1840; 2 Moody, C. C. 123; Reg. v. Johnson, Leigh & ©. C. C. 632, 1865; 10 Cox, C. C. 114, 34 L. J. Mag. Cas. N. 8. 192, 11 Jur. N. 8, 532, 12 L. T. N. 8. 503, 13 Week. Rep. 815; Reg. v. Wollaston, 12 Cox, C. CO. 180, 26 L. T. N. 8. 408, 1872; People v. Bransby, 32 N. Y. 525, 1868; State v. Picket, 11 Nev. 255, 21 Am. Rep. 754, 1876. Failure of prosecutrix’s witness to appear, or of prosecution to account for her absence when she was equal- ly accessible to the defendant as a witness, is no evidence that no as- sault had been committed. Coleman v. State, 111 Ind. 563, 13 N. E. 100, 1887. See, however, Stephens v. State, 107 Ind. 185, 8 N. E. 94, 1886; also Whitcher v. State, 2 Wash. 286, 26 Pac. 268, 1891. Supra, § 227. 8 [Eng.] Reg. v. Beale, 10 Cox, C. C. 157, L. R.1 0. C. 10, 35 L. J. Mag. Cas. N. 8. 60, 12 Jur. N. 8. 12, 13 L. T. N. S. 335, 14 Week. Rep. 57, 1855. [Can.] Reg. v. Connolly, 26 U. C. Q. B. 323, 1870. [Mass.] Com. v. Roosnell, 143 Mass. 32, 8 N. E. 747, 1886. [Mo.] State v. Lacey, 111 Mo. 513, 20 S. W. 238, 1892. [N. J.] Cliver v. State, 45 N. J. L. 46, 4 Am. Crim. Rep. 532, 1883. But a child of over seven years [Tex.] Rodgers v. State, 30 Tex. App. 510, 17 S. W. 1077, 1891; Comer v. State, — Tex. Crim. Rep. —, 20 S. W. 547, 1892. Ignorance by the defendant that prosecutrix was under statutory age is no defense. Supra, §§ 108-113. Under Stat. 33 & 34 Vict. consent of a person under thirteen to an in- decent assault is no defense. Infra, § 751; supra, §§ 187-227, 705. As to statutory rape, see supra, §§ 709-720. 4[Ga.] Stephen v. State, 11 Ga. 225, 1855; Pounds v. State, 95 Ga. 475, 20 S. E. 247, 1894. [N. Y.] Hays v. People, 1 Hill, 351, 1841. [N. C.]. State v. Johnston, 76 N. C. 209, 1877. [Ohio] O’Meara v. State, 17 Ohio St. 515, 1867. As qualifying this, see Reg. v. Cockburn, 3 Cox, C. C. 548, 1849; Reg. v. Read, 1 Den. C. C. 377, 3 Cox, C. C..266, 2 Car. & K. 957, Temple & M. 52, 3 New Sess. Cas. 405, 18 L. J. Mag. Cas. N. S. 88, 13 Jur. 68, 1848; People v. McDonald, 9 Mich. 150, 1861. As to children not positively in- capable of assent, see Reg. v. Mar- tin, 9 Car. & P. 215, 2 Moody, ©. C. 123, 1840; Reg. v. Johnson, 10 Cox, C. C. 114, Leigh & C. C. C. 632, 34 L. J. Mag. Cas. N. S. 192, 11 Jur. 954 CRIMINAL LAW. [§ 750 is not to be arbitrarily ruled to be incapable of consent; the pre- sumption may be overcome by proof.* 3. An indictment for assault with intent to ravish may be sus- tained, when the object of the assault was incapable of assent. And this applies to cases where such incapacity arises from ex- treme infancy,’ or from idiocy or mania,” or from intoxica- tion, whether by alcoholic liquor or by opiates. With young girls it is for the jury to consider whether the supposed assent was not the result of fear, or, in cases of assault, of confusion.® 4. Consent is no defense to assault if the act is perpetrated with unnecessary violence, it seems,’ or if the woman does not know that what is proposed to her is the sexual act;** as in the case of the patient who supposed that the act was one sim- ply of medical treatment.” In such cases there can be a con- viction for the assault; but there can be no conviction of the assault with intent to ravish, if there were intelligent submis- sion, unless the jury believe that the intent was to use force if persuasion failed.” 5. If the defendant intended to use force to the end, and the N. S. 532, 12 L. T. N. S. 503, 13 Week. Rep. 815, 1865. 5 Reg. v. Read, 3 Cox, C. C. 266, 1 Den. C. C. 377, 2 Car. & K. 957, Temple & M. 52, 3 New Sess. Cas. 405, 18 L. J. Mag. Cas. N. S. 88, 13 Jur. 68, 1848; Reg. v. Roadley, 14 Cox, C. C. 463, 42 L. T. N. 8. 515, 49 L. J. Mag. Cas. N. S. 88, 1880. 6 Supra, § 705; and see, particu- larly, Reg. v. Lock, L. R. 2 C. C. 10, 42 L. J. Mag. Cas. N. 8S. 5, 27 L. T. N. 8. 661, 21 Week. Rep. 144, 12 Cox, C. ©. 244, 1871: State v. Johnston, 76 N. C. 209, 1877. Compare: State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754, 1876. 7 Supra, § 703. “Animal consent.’—See Reg. v. Connolly, 26 U. C. Q. B. 323, 1870, where Hagarty, J., argues that mere animal consent in such case defeats prosecution. 8Supra, §§ 191, 192, 705. 9Reg. v. Day, 9 Car. & P. 722, 1841; Reg. v. M’Gavaran, 6 Cox, C. C. 64, 1852; Reg. v. Fick, 16 U. C. C. P. 379, 1860. 10 Infra, § 833. 11 Supra, §§ 702, 704. See State v. Brooks, 76 N. C. 1, 1877, where it was held that an attempt to induce a woman to consent to sexual in- tercourse, under the belief that the defendant was her husband, was not an assault with intent to commit a rape. Compare: Supra, § 704. 12 Reg. v. Case, 4 Cox, C. C. 220, 1850, 1 Den. C. C. 580, Temple & M. 318, 4 New Sess. Cas. 347, 19 L. J. Mag. Cas. N. S. 174, 14 Jur. 489; Reg. v. Flattery, 18 Cox, C. C. 388, 46 L. J. Mag. Cas. N. S. 180, L. R. 2 Q. B. Div. 410, 36 L. T. N. 8S. 32, 25 Week. Rep. 398, 3 Am. Crim. Rep. 454, 1877; Reg. v. Stanton, 1 Car. & K. 415, 1844; Eberhart v. State, 134 Ind. 651, 34 N. E. 637, 1893. Supra, § 702. Ibid. Supra, § 681. [Ark.] Pleasant v. State, 13 Ark. 360, 1853. [N. Y.] Walter v. People, 50 Barb. 144, 1867. [Tex.] Clark v. State, 30 Tex. 448, 1867. [Va.] Com. v. Field, 4 Leigh, 648, 1832. As to fraud, see Reg. v. Bennett, 4 Fost. & F. 1105, 1866, § 751] RAPE. 955 woman, who for a time resisted, ultimately assented, the defend- ant may be convicted of an assault with intent to commit a rape, or of an attempt.* 6. Defendant driven or frightened off before consummating his purpose.!® X. Carwat Knowrepar or Curipren.? § 751. This is a statutory offense. By statutes in Eng- land and in this country the carnal knowledge, even with the consent, of children,’ is made, with varying limits, a statutory offense. down: At common law the following positions may be laid 1. When the child is incapable of consenting, or when the consent is to something else than sexual intercourse, the offense is rape.® 2. When the child intelligently consents, this is a misdemean- 14Supra, §§ 180, 181, 220, 227. [Iowa] State v. Cross, 12 Iowa, 66, 79 Am. Dec. 519, 1861. [Ky.] Proc- tor v. Com. 14 Ky. L. Rep. 248, 20 S. W. 213, 1892. [N. Y.] People v. Bransby, 32 N. Y. 525, 1868. [Vt.] State v. Hartigan, 32 Vt. 607, 78 Am. Dec. 609, 1860. See Reg. v. Hallett, 9 Car. & P. 748, 1841; and cases cited supra, § 225. 15 See supra, §§ 180, 181, 220, 227. [Ala.] Lewis v. State, 35 Ala. 380, 1862. [N. C.] State v. Elick, 52 N. C. (7 Jones, L.) 68, 1859. [Eng.] See Reg. v. Wright, 4 Fost. & F. 967. 1See supra, §§ 683, 709-720. As to carnal knowledge of chil- dren, see note in 80 Am. Dec. 874. “Carnal abuse” is not identical with “carnal knowledge;” hence in prosecution, under statute for “car- nal abuse” of a child, proof of pene- tration is not required. State v. Hummer, 73 N. J. L. 714, 65 Atl. 249, 67 Atl. 294, 1906-7, affirming 72 N. J. L. 328, 62 Atl. 388, 1905. “Carnal knowledge” includes car- nal “abuse.” State v. Sebastian, 81 Conn. 1, 69 Atl. 1054, 1908. The terms “carnal knowledge” and “abuse” in a statute providing pun- ishment for certain acts as consti- tuting rape should be construed to- gether. “Carnal knowledge means sexual bodily intercourse, and the term “abuse” should not be con- strued independently as _ requiring proof of injury to the genital organs in addition to proof of inter- course. State v. Ferris, 81 Conn. 97, 70 Atl. 587, 1908. 2See [Ala.] McGuff v. State, 88 Ala. 147, 16 Am. St. Rep. 25, 7 So. 35, 1889. [Fla.] Holton v. State, 28 Fla. 303, 9 So. 716, 1891. [Mo.] State v. Harney, 101 Mo. 470, 14 S. W. 657, 1890; State v. Houx, 109 Mo. 654, 32 Am. St. Rep. 686, 19 S. W. 35, 1892; State v. Wilcox, 111 Mo. 569, 33 Am. St. Rep. 551, 20 S. W. 314, 1892. “Child under the age of fourteen years” includes every female child under fourteen years, whether or not she has reached a state of puberty. See People v. Miller, 96 Mich. 119, 55 N. W. 675, 1893. As to indictment under Alabama statute, see Toulet v. State, 100 Ala. 72, 14 So. 403, 1893. 3 Supra, § 701. 956 CRIMINAL LAW. [§ 751 or at common law, when not so by statute; while by statute in some jurisdictions it is a felony.* In many jurisdictions the question of consent is settled by the adoption of statutes providing that carnally knowing a fe- male under the age of (ten), or carnally knowing a woman over that age against her will, shall be, ete.® As has been al- ready seen,® where a severer penalty is assigned in cases where the person ravished is under a certain age, the indictment in order to sustain the severer penalty must specify the age.’ Without such specification, however, the conviction can be for the offense of rape,® and as has been seen, the limitations as to age may be rejected as surplusage,® and so may terms which, though descriptive of rape (e. g., “force, ” “against the will,” etc.), are not necessary ingredients of the statutory offense.” 4[Ariz.] Territory v. Potter, 1 Ariz. 421, 25 Pac, 529, 1883. [Ga.] Stephen v. State, 11 Ga. 225, 1855, holding that not only infancy, but feeble mindedness, makes consent in- operative. [La.] State v. Tilman, 30 La. Ann. II. 1249, 31 Am. Rep. 236, 1878, [N. J.] Cliver v. State, 45 N. J. L. 46, 4 Am. Crim. Rep. 532, 1883, where the limit is ten years. [Va.] Com. v. Bennett, 2 Va. Cas. 235, 1820; Lawrence v. Com. 30 Gratt. 845, 1878, where it was also held that under the Virginia statute, making consent no defense with girls under twelve, mistake as to girl’s age no defense. See supra, §§ 108- 113, 712-714. Consent and bad repute of child under sixteen years, a defense to charge of rape; People v. Mills, 94 Mich. 630, 54 N. W. 488, 1893; Com. v. Allen, 135 Pa. 483, 19 Atl. 957, 1890. As to consent of supra, §§ 701, 711. 5 Supra, § 738. 6But see Com. v. Roosnell, 143 Mass. 32, 8 N. E. 747, 1886. Consent or resistance is imma- terial on part of female. See Toulet v. State, 100 Ala. 72, 14 So. 403, 1893; Davis v. State, 31 Neb. 247, 47 N. W. 854, 1891; Hall v. State, 40 Neb. 320, 58 N. W. 929, 1894. On the question of consent of fe- male under statutory age in Kansas, infants, see see State v. Woods, 49 Kan. 237, 30 Pac. 520, 1892. As to distinction between rape and carnal knowledge of a female child under the age of puberty, see War- ner v. State, 54 Ark. 660, 17 S. W. 6, 1891. As to distinction between rape and enticing female child for pur- poses of prostitution in Pennsyl- vania, see Com. v. Fowler, 44 Phila. Leg. Int. 482, 1887. 7 State v. Worden, 46 Conn. 349, 33 Am. Rep. 27, 1878; Hall v. State, 40 Neb. 320, 58 N. W. 929, 1894, and cases cited in next note. 8 [Eng.] Reg. v. Martin, 9 Car. & P. 215, 2 Moody, C. C. 123, 1840; Reg. v. Nicholls, 10 Cox, C. C. 476, 1867; Reg. v. Dicken, 14 Cox, C. C. 8, 1877. [Ala.] Vasser v. State, 55 Ala. 264, 1876. [Conn.] State v. Gaul, 50 Conn. 579, 1883. [Mass.] Com. v. Sugland, 4 Gray, 7, 1855. LN. C.] State v. Storkey, 63 N. C. 7, 1868; State v. Johnston, 76 N. C. 209, 1877; State v. Staton, 88 N. C. 654, 1883. [Ohio] O’Meara v. State, 17 Ohio St. 515, 1867. 9 Supra, § 738; Mobley v. State, 46 Miss. 501, 1871; Hall v. State, 40 Neb. 320, 58 N. W. 929, 1894. 10 State v. Black, 63 Me. 210, 1874; McComas v. State, 11 Mo. 116, 1847; State v. Jaeger, 66 Mo. 173, 1877. Indictment—it is enough to aver § 752} RAPE. 957 “Carnal knowledge,” under the statute, is to be construed in the same sense as the same words are construed in reference to rape. The male organ must be introduced to some extent within the lips of the female, though the slightest degree of penetration will be sufficient.™ XI. Derrenszs In GENERAL. § 752. As to what may be set up in defense. ‘Any de- fense may be interposed on the trial of an indictment for rape, or of an assault to commit a rape, which shows that any of the essential elements to the existence of the offense are wanting, such as that there was no force,’ actual or constructive,” pen- etration® and the like. Thus: Bad reputation of the prosecuting witness, where she is over “did have carnal knowledge of,” etc., see People v. Mills, 17 Cal. 276, 1861. 11 Reg. v. Lines, 1 Car. & K. 393, 1844; People v. Courier, 79 Mich. 366, 44 N. W. 571, 1890; Brauer v. State, 25 Wis. 413, 1870. As to admissibility of medical tes- timony, see State v. Watson, 81 Iowa, 380, 46 N. W. 868, 1890. As to lesser offense of taking in- decent liberties with child, see Peo- ple v. Hicks, 98 Mich. 86, 56 N. W. 1102, 1893, and other cases cited supra, § 697. Mistake as to the girl’s age is no defense, has been already seen, supra, §§ 108-113, 701, 711. Statutory limitations as to age of consent have also been previously noticed, supra, § 701. 1¥Failure to instruct jury as to character of force necessary to ac- complish rape is error, Walton v. State, 29 Tex. App. 163, 15 S. W. 646, 1890; Shields v. State, 32 Tex. Crim. Rep. 498, 23 S. W. 893, 1893. 2As to how far fraud is equiva- lent to force, see supra, § 707. Erroneous charge on the subject of fraud as a substitute for force — Where the evidence tended to show that the defendant had carnal in- tercourse with the prosecutrix while in bed with her husband, and the testimony was conflicting as to whether she was asleep or not, it was held error for the court to charge the jury that if they be- lieved from the evidence that the defendant “by either force or fraud” had carnal knowledge of the prosecu- trix, they should convict; as there was no fraud such as is required by the statute. Mooney v. State, 29 Tex. App. 257, 15 S. W. 724, 1890. The defendant asked the court to charge: “In order to find the prisoner guilty. of an assault with intent to commit rape, you must be satisfied beyond w reasonable doubt that the prisoner, when he laid hold of the prosecutrix, not only desired to grat- ify his passions upon her person, but that he intended to do so at all events, and notwithstanding any re- sistance on her part.” Refused. Held error. Porter v. State, 33 Tex. Crim. Rep. 385, 26 S. W. 626, 1894. 8 See supra, §§ 696, 697. Instruction as to penetration in case of infant—The court charged the jury: “If they have a reasonable doubt as to whether or not the de- fendant is guilty of rape as above defined, but believe to the exclusion of reasonable doubt that he had car- nal knowledge of said female with her consent, they will find him not guilty of rape, but guilty of having carnal knowledge of an infant fe- 958 URIMINAL LAW. [§ 752 the age of consent fixed by the statute,* may be admitted, not for the purpose of excusing the act, but for the purpose of showing that there may have been a consent to the intercourse.® Age of victim, belief as to, where under the age of statutory consent cannot be set up as a defense to the commission of the crime,’ and for that reason defendant cannot show that he had good reason to believe that the prosecutrix was over the age of consent as fixed by the statute.* Such a defense being set up, however, the burden of proof will be on the prosecution to show that the victim was under the age of consent; but there is no presumption that she had arrived at such age.® Age of accused, where an infant under the age of fourteen, can be set up as a defense,” but in those jurisdictions where the male under twelve years of age, and fix his confinement in the peniten- tiary for ten to twenty years, in their discretion. To have carnal knowledge with the infant’s consent there must have been some penetra- tion, however slight, if the parts of the infant were sufficiently developed to admit it; but if not so developed, than the pressing or rubbing his private part against her private parts for the purpose of producing an emission, was sufficient to con- stitute carnal knowledge.” Held error, White v. Com. 96 Ky. 180, 28 8S. W. 340, 1894. 4See ante, §§ 709 et seq. 5 See ante, § 695. 6 People v. Ryno, 148 Mich. 137, 111 N. W. 740, 1907. See footnote 12, this section. As to neglect of accused to prove assent to the act, see supra, § 736. 7See supra, §§ 712-714. 8Com. v. Murphy, 165 Mass. 66, 30 L.R.A. 734, 52 Am, St. Rep. 496, 42 N. E. 504, 10 Am. Crim. Rep. 67, 1895; State v. Houx, 109 Mo. 654, 32 Am. St. Rep. 686, 19 S. W. 35, 1891. See Com. v. Farren, 9 Allen, 489, 1864; Com. v. Raymond, 97 Mass. 567, 1867; Com. v. Emmons, 98 Mass. 6, 1867; Com. v. Wentworth, 118 Mass. 441, 1875; Com. v. Savery, 145 Mass. 212, 13 N. E. 611, 1887; Com. v. Connelly, 163 Mass. 539, 40 N. E, 862, 1895. See also supra, §§ 712, 713. “Considering the nature of the of- fense, the purpose to be accom- plished, the practical methods avail- able for the enforcement of the law, and such other matters as throw light upon the meaning of the lan- guage, the question in interpreting a criminal statute is whether the in- tention of the legislature was to make knowledge of the facts an es- sential element of the offense, or to put upon every one the burden of finding out whether his contemplated act is prohibited and of refraining from it if it is.’ Com. v. Murphy, 165 Mass. 66, 30 L.R.A. 734, 52 Am. St. Rep. 496, 42 N. E. 504, 10 Am. Crim. Rep. 67, 1895. —Application of this rule, how- ever, to crimes like bigamy and adultery has led to some conflict of authority, but this conflict does not apply to the crime of rape. See Reg. v. Tolson, L. R. 23 Q. B. Div. 168, 58 L. J. Mag. Cas. N. S. 97, 60 L. T. N. 8. 899, 37 Week. Rep. 716, 16 Cox, C. C. 629, 54J. P. 4,8 Am. Crim. Rep. 59, 8 Eng Rul. Cas. 16; Com. v. Presby, 14 Gray, 65, 1859; Com. v. Hayden, 163 Mass. 453, 28 L.R.A. 318, 47 Am. St. Rep. 468, 40 N. E. 846, 9 Am. Crim. Rep. 408, 1895. ®9State v. Houx, 109 Mo. 654, 32 Am, St. Rep. 686, 19 S. W. 35, 1891. 10 See supra, §§ 686, 687. § 752] RAPE. 959 presumption of incapacity is rebuttable, the state may show capacity and thereby nullify the defense. Consent of the female can be set up as a defense, because want of consent is one of the essential elements in the crime.” Condonation and forgiveness by the injured party, after the consummation of the offense, does not constitute a defense to the charge of rape; neither is a subsequent marriage between the accused and the prosecutrix a defense to a charge of ravish- ing a female under the age of consent." Fornication, and not rape, may be set up as a defense, and where such a defense is interposed, a very strict rule of proof is required in order to secure conviction.’ Good character of defendant constitutes no defense; 1* but the defendant may prove a good character for virtue and morality for the purpose of raising a reasonable doubt in the mind of the jurors.?” Impotency of accused may be set up as a defense, but in absence of proof of defendant’s knowledge of his impotency prior to the time of the assault, it will not constitute a de- fense.? 11 See supra, § 688. 12 See supra, §§ 685, 699 et seq. Consent of female under age of statutory consent is not a consent. See supra, §§ 701, 711 et seq. As to failure to make outcry, see supra, § 733. Failure to make immediate outcry an important circumstance.—The de- fendant requested the court to charge: “If the jury believe from the evidence that, at the time the offense is alleged to have been com- mitted, the prosecuting witness made no outcry, and did not, as soon as an opportunity offered, complain of the offense to others, but concealed it for a considerable length of time thereafter, then the jury should take this circumstance into consideration with all the other evidence in de- terming the guilt or innocence of the defendant, and whether in fact a rape was committed or not.” Re- fused. Held error. State v. Witten, 100 Mo. 525, 13 8S. W. 871, 1890. Defendant requested the court to charge: “That in case of rape it devolves upon the state to show, be- fore a conviction can be had, that the party ravished made complaint thereof immediately after being rav- ished, or as soon thereafter as such party had opportunity so to do. Now the court instructs the jury that no such complaint by the prosecutrix has been proven in this case.” Refused. Held error under the evidence of the case. State v. Patrick, 107 Mo. 147, 17 S. W. 666, 1891. 13 Com. v. Slattery, 147 Mass. 423, 18 N. E. 399, 1888. 14State v. Newcomer, 668, 54 Pac. 685, 1898. 15 Vogel v. State, 138 Wis. 315, 119 N. W. 190, 1909. 16 State v. Jones, 145 Iowa, 176, 123 N. W. 960, 1907. 1: State v. Jones, 145 Iowa, 176, 123 N. W. 960, 1907; Lake v. Com. 31 Ky. L. Rep. 1232, 104 8. W. 1003, 1907. 18See supra, § 690. 19 Territory v. Keyes, 5 Dak. 244, 38 N. W. 440, 1888. 59 Kan. 960 CRIMINAL LAW. [§ 752 An intended marriage with the victim constitutes no ground of defense, and hence the accused will not be permitted to prove his intention to procure a divorce from his wife and marry the prosecutrix, either as a matter of defense or in mitigation.” Intoxication, while no excuse for crime,”" can be set up as a defense in a prosecution for rape, where the degree of intoxica- tion was such as to render the accused incapable of forming an intention to ravish the prosecutrix,* because a specific intent must accompany the means used to affect the crime; and in those conditions in which the mental faculties of the accused are so overcome by intoxication as to render him unconscious of what he was doing and to deprive him of sufficient capacity to entertain an intent, such an intent cannot be inferred from his acts," because the particular intent charged must be proved to the satisfaction of the jury, and no intent in law, or legal presumption differing from the intent in fact, will be allowed to supply such intent in the mind of the accused.* Payment of prosecutrix for damage sustained will constitute no defense; *° and the fact that the prosecutrix, after the com- mission of the offense, asked for money, can in no way absolve the defendant from his guilt.** Position child thrown in, such that it was impossible to rav- ish her, constitutes no defense in a prosecution for assault with intent to carnally know and abuse her.*” Prior unchastity of the prosecutrix constitutes no defense, on the merits, to a charge of rape, or of an assault to commit a rape.” [Ala.] Ogletree v. State, 28 Ala. 693, 1856; Beasley v. State, 50 Ala. 149, 20 Am. Rep. 292, 1874. [Ky.] Shan- 20Smith v. State, — Tex. Crim. Rep. —, 73 8. W. 401, 1903. 21 See supra, §§ 65 et seq. 22 State v. Donovan, 61 Iowa, 369, 16 N. W. 206, 4 Am. Crim. Rep. 25, 1883; Reagan v. State, 28 Tex. App. 227, 19 Am. St. Rep. 833, 12 S. W. 601, 1889; Crew v. State, — Tex. Crim. Rep. —, 22 8. W. 973. 23 Reagan v. State, 28 Tex. App. 227, 19 Am. St. Rep. 833, 12 8. W. 601, 1889. 24See [Eng.] Rex v. Holt, 7 Car. & P. 518, Cruse’s Case, 8 Car. & P. 541, 1838; Reg. v. Jones, 9 Car. & P. 258, 1840; Rex v. Thomas, 1 East, P. C. 417, 1 Leach, C. L. 330; Reg. v. Ryan, 2 Moody & R. 218. nahan v. Com. 8 Bush, 463, 8 Am. Rep. 465, 1871. [Mich.] People v. Scott, 6 Mich. 296, 1859; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781, 1862; Roberts v. People, 19 Mich. 402, 1870. [Tex.] Loza v. State, 1 Tex. App. 488, 28 Am. Rep. 416, 1877. 25 See supra, § 706. 26 State v. Hammond, 77 Mo. 157. 1882. 27Com. v. Shaw, 134 Mass. 221, 1888. 28 Pleasant v. State, 18 Ark. 360, 1853; People v. Hartman, 103 Cal. § 752] RAPE. 961 —In statutory rape where the statute requires the girl shall be of chaste character in order to constitute sexual intercourse with her, with her consent a rape, the defendant can set up as a defense a want of chastity on her part.* Subsequent consent on the part of the prosecutrix, will con- stitute no defense in a prosecution on the charge of rape.** 242, 42 Am. St. Rep. 108, 37 Pac. 153, 1894. 29 See supra, §§ 709-720.. 30 See supra, § 716. Intercourse between the prose- cutrix and defendant prior to the time charged is a defense; as such destroyed her previous chaste char- acter. State v. Dacke, 59 Wash. 238, 30 L.R.A.(N.S.) 173, 109 Pac. 1050, 1910. Crim. L, Vol. L—61. And the fact that she was chaste except for her intercourse with the defendant did not prevent his making the defense. State v. Dacke, 59 Wash. 238, 30 L.R.A. (N.S.) 173, 109 Pac. 1050, 1910. 31 State v. Welch, 191 Mo. 179, 89 Sg 945, 4 A & HE. Ann. Cas. 681, 905. CHAPTER XVL SODOMY. § 753. § 754, § 755. § 756. § 757. § 758. § 759. 8 760. § 761. § 762. § 763. § 764. § 765. Nature and origin. Definition—Sodomy. —Buggery. —Bestiality. Statutory provisions. Elements of the offense. Attempts to commit sodomy. Indictment. Evidence. Defenses—Consent. —Infancy. —lInsanity. Punishment. § 753. Nature and origin. Sodomy is the “crime against nature,” or the “infamous crime against: nature,” these phrases being used as synonymous with the word “sodomy”? in all its various branches or designations, and is a generic term which embraces (1) sodomy proper,? (2) buggery,® and (3) bestiality. The crime derives its name from the City of Sodom,® the unfortunate “city of the plains” of Palestine, where these bestial practices were first introduced and became so universally prevalent that strangers sojourning within its gates were not secure from assault and outrage.® 1Indictment charging the defend- ant did commit “the crime against nature,” in that by doing certain specific acts he did then and there commit the crime of “sodomy,” has been held to charge but a single of- fense. Bradford v. State, 104 Ala. 68, 53 Am. St. Rep. 24, 16 So. 107, 1893; State v. Thibodeaux, 127 La. 332, 53 So. 582, 1910. 2See infra, § 754. 8See infra, § 755. 4See infra, § 756. 5 Ausman v. Veal, 10 Ind. 355, 71 Am. Dec. 331, 1858; Com. v. Poin- dexter, 183 Ky. 720, 118 S. W. 948, 1909. 6 “Sodomy” so called from the prev- alence of this crime in the city of 963 964 CRIMINAL LAW. [§ 753 A religious rite, these infamous practices were, when first inaugurated, degenerating into carnivals of lust,—in honor of Ashtoreth,” the Assyrian or Semitic goddess of the city of Byblus,’ who was worshipped by the Phoenicians and the Sodom. 6 Bacon, Abr. “Sodomy ;” Genesis, chap. xix. “You lost, all at once, five fine towns which the Lord destined for you, at the end of the lake of Sodom; and that for the inconceiva- ble attempt upon the modesty of two angels.” 6 Philosophical Dict. (10 Voltair’s Works, The St. Hubert ed.) 303. Fausset says that Palmer and Drake traversed the Negeb in a southeastern direction, as far as Mt. Hoar, made a detour to Jebel (Mount) Madherah, at the summit and base of which are blocks of stone of which the Arabs say: “A people once dwelt there, to whom travelers came seeking hospitality; but the people did to them a horri- ble deed, wherefore the Almighty in anger rained down stones, and de- stroyed them from off the face of the earth. Bible Cyc. 657. This infamous practice seems not to have been confined to the region of the five unfortunate cities (see 6 Philosophical Dict. (10 Voltair’s Works, The St. Hubert Guild, ed. — 303), or to the early time of the patriarcial Jews, but was a flag- rant abuse in the time of St. Paul, who says, “God gave them over unto vile affections; for even their wom- en did change the natural use into that which is against nature, and likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in them- selves that recompense of their error which was meet.” (Romans 1:26, 27). It is not at all certain that this same practice did not prevail among the early Christians. See 1 Corinthians, chap. vi, verse 9; 7 Philosophical Dict. (11 Voltair’s Works, The St. Hubert Guild ed.) 53 et seq. Not confined to the Jewish people, either; as is learned from the classic writers. title, “The dispositions three, that Heaven abides not,— Incontinence, and malice, and in- sane Bestiality.” Dante’s 81-3. See also Aristotle’s “Ethics,” lib. VII., chap. 1, where he speaks about “three sort of things to be avoided, —malice, incontinence, and _ besti- ality.” Greeks addicted to the practices in the first century of the Christian era, it would seem from a passage in Plutarch’s “Opera Moralia,” which runs as follows: “Your incontinence is such that Nature, though she have the law to assist her, is not able to keep it within bounds; in- somuch that, like a rapid inundation, these inordinate desires overwhelm Nature with continual violence, trouble, and confusion. For men have copulated with she-goats, sows, and mares; and women have run mad after male beasts.” Plutarch’s Morals, vol. V. (Goodwin’s trans- lation, Athenaeum Soc. ed.) p. 229 (“Ulysses, Circe, Gryllus,” par. 7). Not confined to ancient times, as would appear from the royal prag- matic of Philip II., abolishing the use of bath tubs among the Moris- coes. “Finally, as rumors—most absurd ones—had got abroad that the warm baths which the natives were in the habit of using in their houses were perverted to licentious indulgences, they were to be re- quired to destroy the vessels in which they had bathed, and to use nothing of the kind thereafter.” 3 Prescott’s Philip II., p. 25. 7Otherwise known as Ashtaroth, Astarte, Istar, and Ishtar, for the goddess was worshiped by all these appallations, and “Ishtar, the daughter of Sin, in- clined her ear.” 8The “Kaddischat,” or “Holy City,” of the Phonicians, where the “Inferno,” canto xi. ll. § 754] SODOMY. 965 ancient Israelites,°—among whom women were similarly “dese- crated” to lust in this religious rite.’ § 754. Definition—Sodomy. Sodomy proper is the carnal copulation of human beings’ in other than the natural manner, that is, “against nature” and per anum.*? This is the com- mon-law definition, which has been much modified under the present doctrine as to the crime of sodomy proper. Between man and man® this crime is usually committed, but it may be committed between a man and a woman,‘ even though “The Lady of the City,” Astarte, accquired, with all the unrestraint of primitive sensuousness inherent in the notion of a goddess of love and vitality, a more distinct and potent shape than in the rest of Phenicia. 2 Historian’s History of the World, 266. This worship seems at first to have been pure but the wanton rites which accompanied the worship of Mylitta, at Babylon, and which cor- rupted the morals, spread into As- syria, Phoenicia, and Cypress, taint- ing the worship of all the goddesses with an impurity which formed no part of the original. 2 Historian’s History of the World. 350. 9 Judges, 2:13, 10:6; 1 Samuel, 7:3; 1 Kings, 11:33. “With these in troop Came Astoreth, whom the Pheni- _ ¢ians eall’d ~ Astarte, queen of Heaven, crescent horns To whose bright image nightly by the moon Sidonian virgins paid their vows and songs: In Sion also not unsung, where stood Her temple on th’ offensive moun- tain built By that uxorious king, whose heart, though large, Beguiled by fair idolatresses, fell To idols foul.” with Milton’s Paradise Lost, bk. 1, 487— 446, 10 Genesis, 38:21, 22; Hosea, 4:14; 1 Kings, 22:38. 1 Sodomy is the act against nature with mankind only. See Stafford’s Case, 12 Coke, 37. Animal pathic crime not sodomy. Com. v. J. 21 Pa. Co. Ct. 625, 1899. 23 Co. Inst. 59; Swinb. Wills, 97. [Eng.] Mogg v. Mogg, 2 Addams, Eccl. Rep. 292; Blizard v. Kelly, 2 Barn. & C. 283, 2 L. J. K. B. 6, 3 Dowl. & R. 519, 1823; Reg. v. Allen, 2 Car. & K. 869, 1 Den. C. C. 364, Temple & M. 55, 18 L. J. Mag, Cas. N. S. 72, 13 Jur. 108, 3 Cox, C. C. 270, 1848; Reg. v. Jellyman, 8 Car. & P. 604; Reg. v. Allen, 1 Den. C. C. 364, Temple & M. 55, 2 Car. & K. 869, 18 L. J. Mag. Cas. N. S. 72, 13 Jur. 108, 3 Cox, C. C. 270; Rex v. Wiseman, Fortescue, 91. [Cal.] People v. Williams, 59 Cal. %97, 1881; People v. Moore, 103 Cal. 508, 37 Pac. 510, 1894. [Conn.] Mascolo v. Montesanto, 61 Conn. 50, 29 Am. St. Rep. 170, 23 Atl. 714, 1891. [Ga.] Hodges v. State, 94 Ga. 593, 19 S. E. 758, 1894. [Ky.] Com. v. Poindexter, 133 Ky. 720, 118 S. W. 948, 1909. [La.] State v. Vick- nair, 52 La. Ann. 1921, 22 So. 273, 1893. [Mass.] Com. v. Snow, 111 Mass. 411, 1873. [Mont.] Territory v. Mahaffey, 3 Mont. 112, 1875. [N. Y¥.] Lambertson v. People, 5 Park. Crim. Rep. 200, 1861. [Tex.] Ex parte Bergen, 14 Tex. App. 52, 1883; Lewis v. State, 36 Tex. Crim. Rep. 37, 61 Am. St. Rep. 831, 35 S. W. 372, 1896. 3“Of the same sex—the male.” says Perkins, J., in Ausman v. Veal, 10 Ind. 355, 71 Am. Dec. 331, 1858; but this limitation in the definition is not now accepted. 4Where penetratun per anum, the term “mankind” includes a woman, in a_ statute defining sodomy. Lewis v. State, 36 Tex. Crim, Rep 37, 61 Am. St. Rep. 831, 966 the woman is the wife of the man; between a man and a child,® or between two children.” CRIMINAL LAW. [§ 754 ® or it may be committed But the crime of sodomy proper cannot be accomplished between two women,® though the crime of bestiality may be, doubt- 35 S. W. 372, 1896; Adams v. State, 48 Tex. Crim. Rep. 90, 122 Am. St. Rep. 733, 86 S. W. 334, 1905. See Rex v. Wiseman, Fortescue, 91. 5 Reg. v. Jellyman, 8 Car. & P. 604. Where by mutual consent, both may be indicted. Reg. v. Harris, 1 Den. C. C. 464, 1849; Reg. v. Allen, 2 Car. & K. 869, 1 Den. C. C. 364, Temple & M. 55, 18 L. J. Mag. Cas. N.S. 72, 13 Jur. 108, 3 Cox, C. U. 270, 1849. 6 Child twelve years old cannot consent to an act of sodomy being committed upon his person. If he submits without resistance, still the act was done by force. There can be no delictum on his part. Mascolo v. Montesanto, 61 Conn. 50, 29 Am. St. Rep. 170, 23 Atl. 714, 1891. 7As to punishment of offender under sixteen years of age. Brown v. State, 50 Tex. Crim. Rep. 626, 99 S. W. 1001, 1907. See Mascolo v. Montesanto, 61 Conn. 50, 29 Am. St. Rep. 170, 23 Atl. 714, 1891. As to presumption as to boy under fourteen years being incapable of committing the crime of sodomy, see infra, § 763. 8See, however, the curious pas- sage of St. Paul, in which he says: “Even the women did change the natural use into that which was against nature.” Romans 1:26. Or has this reference to the commerce of the women with the men per anum? An extraordinary case reported by Montaigne, in his “Diary of a Journey through Switzerland and Germany into Italy,” as having oc- curred, a short time before his ar- rival, at the town of Montirandet (Montier-on-Der), in the neighbor- hood of Vitry-le-Francois, the capi- tal of an arrondissement in the de- partment of Marne, in France, to the effect that: “Seven or eight girls around Chaumont-en-Banssigni agreed, some years before, to dress themselves up as man, and so to live for the rest of their lives. One of these came to Vitry, under the name of Mary, and gained her liveli- hood by weaving; she appeared a well-behaved young man, and every- body liked her as such. She be- came betrothed at Vitry to a girl who is still alive, but, in conse- quence of some difference that arose between them, the match was broken off. Afterwards she went to Montirandet, still gaining her livelihood at the same employment, and there she fell in love with, and married, a woman, with whom she lived for four or five months, and gave her every satisfaction, ’tis said; but, at the end of that time, having been recognized by a person from Chau- mont, and the thing being brought under the cognizance of justice, the husband was condemned to be hanged; which she said she would rather endure than resume her female attire and habits. And she was accordingly hanged, on the charge of having, by unlawful practices and inventions, supplied the defects of her sex.” Montaigne’s Works (Houghton-Mifflin Co. ed.), vol. 4, pp. 188, 189. See also vol. 3, Id. 129. Abnormal clitoridean development may possibly account for the “every satisfaction, ’tis said.” The clitoris is the erectile organ of woman (and of other female mammals), differing from the penis in man chiefly in its smaller size and imperforate state. In normal women the clitoris is small and concealed; but in case of clitorism or hypertrophy of the clitoris, is sometimes large, and pendant externally. Among peoples practising circum- cision, it is not unfrequently the ease that there is circumcision of the female as well as of the male, which consists of an excision or mutilation of the clitoris in the female, and the cutting off of the § 754] SODOMY. 967 less.° It is thought, however, that it may be committed by a woman with a male child under the present doctrine as to place of penetration,” at least in some jurisdictions. Acts of lust other than sexual connection per anum, in the absence of a provision in the statute making such acts to con- stitute the crime of sodomy, may or may not constitute the crime, according to the jurisdiction in which the act is commit- ted, for there is a conflict of authority on this point.” It has been held that this crime cannot be committed by connec- tion or penetration in the mouth” of the catamite or of the pathic; but, on the other hand, it is held that this crime may foreskin of the male. This mutila- tion was also sometimes done in connection with the degrading prac- tice of infibulation, formerly prac- tised in many countries. See Lane’s Arabic Lexicon sv. “Hafada;” 1 Lane’s Modern Egypt 73; Neibuhr’s Description de TlArabie, p. 70; Strabo pp. 771, 824. 9See infra, § 756. 10 See authorities in footnotes 13, 14, this section. 11 Statutory provisions, when there are statutes defining and punishing the crime of sodomy, have much to do with this conflict in au- thorities. 12 [Cal.] People v. Boyle, 116 Cal. 658, 48 Pac. 800, 1897. [Neb.] Kin- nan v. State, 86 Neb. 234, 27 L.R.A. (N.S.) 478, 125 N. W. 594, 21 A. & E. Ann. Cas. 335, 1910. [Tex.] Prindle v. State, 31 Tex. Crim. Rep. 551, 37 Am. St. Rep. 833, 21 S. W. 360, 1893; Mitchell v. State, 49 Tex. Crim. Rep. 535, 95 S. W. 500, 1906. [Va.] Com. v. Thomas, 1 Va. Cas. 307, 1812. See generally 1 Hale, P. C. 669; 1 Hawk. P. C. 4; 3 Co. Inst. 58, 59. As to penetration per os, see note in 27 L.R.A(NS.) 478. Contra under statute: White v. State, 136 Ga. 158, 71 S. E, 185, 499, 1911; State v. Whitmarsh, — S. D. —, 128 N. W. 580, 1910. Act may be committed in White v. State, 186 Ga. 158, 71 S. E. 135, 499, 1911. Mouth used act not sodomy. See [Eng.] Rex v. Jacobs, 1 Russ. & R. C. C. 331. [Cal.] People v. Boyle, 116 Gal. 658, 48 Pac. 800, 1897. [Tex.] Prindle v. State, 31 Tex. Crim. Rep. 551, 37 Am. St. Rep. 833, 21 S. W. 360, 1893; Mitchell v. State, 49 Tex. Crim. Rep. 535, 95 S. W. 500, 1906. —Inducing a boy of seven to in- sert his male organ in the mouth of the accused has been held to consti- tute the crime against nature, and not the statutory offense of taking liberties with the privates of a minor. Means v. State, 125 Wis. 650, 104 N. W. 815, 1905. Must be per anum, [Cal.] People v. Boyle, 116 Cal. 658, 48 Pac. 800, 1897. [Ky.] Com. v. Poindexter, 133 Ky. 720, 118 S. W. 943, 1909. [Neb.] Kinnan v. State, 86 Neb. 234, 27 L.R.A.(N.S.) 478, 125 N. W. 594, 21 A. & E. Ann. Cas. 335, 1910. [Tex.] Prindle v. State, 31 Tex. Crim. Rep. 551, 37 Am. St. Rep. 833, 21 8S. W. 360, 1893; Mitchell v. State, 49 Tex. Crim. Rep. 335, 95 S. W. 500, 1906. See note in 27 L.R.A.(N.S.) 478. Must be in part of body where sodomy usually committed, see People v. Hodgkin, 94 Mich. 27, 34 Am. St. Rep. 321, 53 N. W. 794, 9 Am. Crim. Rep. 658, 1892; Prindle v. State, 31 Tex. Crim. Rep. 551, 37 Am. St. Rep. 833, 21 S. W. 360, 1893. See notes in 34 Am. St. Rep. 323, and 37 Am. St. Rep. 834. 968 CRIMINAL LAW. [§ 754 be committed by any act of bestial and unnatural copulation,” and in a manner other than res veneria in ano. § 755. —Buggery. Properly speaking, that branch of sodomy commonly called “buggery” consists in the carnal cop- ulation by’ a human being with an animal;* such as with a “beast,” ? a bitch (by a man),® a cow,* a dog (by a woman),° a duck,® a goat (by a woman),” a ewe,® a jennet,® a mare,” a sow," and the like. § 756. —Bestiality. The crime of sodomy, including both of the branches above defined, is sometimes spoken of as the crime of “bestiality ;”? seem to limit it to the branch of buggery alone.’ some of the cases, however, would The better opinion is thought to be that bestiality includes not only the 18 Honselman v. People, 168 III. 172, 48 N. E. 304, 1897; Kelly v. People, 192 Ill. 119, 85 Am. St. Rep. 323, 61 N. E. 425, 1901. 14Herring v. State, 119 Ga. 709, 46 S. E. 876, 1904; People v. Hodg- kin, 94 Mich. 27, 34 Am. St. Rep. 321, 53 N. W. 794, 9 Am. Crim. Rep. 658, 1892. 16 Bacon, Abr. title “Sodomy;” 4 Bl. Com. 215; 3 Co. Inst. 58, 59; 1 East, P. C. 480; 1 Hale, P. C. 669; Hawk. P. C. chap. 4. [Cal.] People v. Williams, 59 Cal. 397, 1881. [Ky.] Com. v. Poindexter, 183 Ky. 720, 118 S. W. 943, 1909. [Va.] Com. v. Thomas, 1 Va. Cas. 307, 1812. 2Haynes v. Ritchey, 30 Iowa, 76, 6 Am. Rep. 642, 1870. “Beast” does not include “a fowl,” within the common-law definition, is held in R. v. Multreaty, 1 Russell, Crimes, 938. 3 Reg. v. Allen, 1 Car. & K., 496, 1844. / 4Bradford v. State, 104 Ala. 68, 53 Am. St. Rep. 24, 16 So. 107, 1893. 6 Ausman v. Veal, 10 Ind. 355, 71 Am, Dec. 331, 1858; Cleveland v. Detweiler, 18 Iowa, 299, 1865. 6 Reg. v. Brown, L. R. 24 Q. B. Div. 357, 16 Cox, C. C. 715, 59 L. J. Mag. Cas. N. 8. 47, 61 L. T. N.S. 594, 38 Week. Rep. 95, 54 J. P. 408, holding a duck to be an “animal” within the statute, overruling Reg. v. Collins, Leigh & C. C. C. 471, 33 L. J. Mag. Cas. N. S. 177, 10 Jur. N. S. 686, 10 L. T. N. S. 581, 12 Week. Rep. 886, 9 Cox, C. C. 497, and dis- tinguishing Reg. v. Clark, L. R. 1 C. C. 54, 36 L. J. Mag. Cas. N. S. 16, 12 Jur. N. 8, 946, 15 L. T. N. S. 190, 15 Week. Rep. 48, 10 Cox, C. C. 338. See footnote 2, this paragraph. Man’s organ too large to enter the private parts of the fowl, it has been held to be otherwise, in R. v. Mulreaty, 1 Russell, Crimes, 398. 7 Slander on early Hebrew women, alleging they had commerce with goats. See 6 Philosophical Dict. (10 Voltair’s Works, St. Hubert Guild ed.) 303. 8 Rex v. Cozins, 6 Car. & P. 351, 1834. 9Almendaris v. State, Tex. Crim. Rep. —, 73 8. W. 1055, 1908. 10[Mo.] Edgar v. McCutchen, 9 Mo. 768, 1846. [Tex.] State v. Campbell, 29 Tex. 44, 94 Am. Dec. 251, 1867; Cross vy. State, 17 Tex. App. 476, 1885; Langford v. State, 48 Tex. Crim. Rep. 561, 89 S. W. 830, 1907. [Va.] Com. v. Thomas, 1 Va. Cas. 307, 1812. 11[Ind.] Shigley v. Snyder, 45 Ind. 541, 1874. [N. Y¥.] Goodrich v. Wolcott, 3 Cowen, 231, 1824. [Tex.] Langford v. State, 48 Tex. Crim. Rep. 561, 89 S. W. 830, 1905. 1Com, v. J. 21 Pa. Co. Ct. 625, 1899. 2“We take it that there is a dif- ference in significance between the term ‘bestiality’ and the term ‘crime against nature.’ . Both § 758] SUDOMY. 969 acts denounced in sodomy proper® and buggery,* but also any beastly and revolting practice or act, although not involving penetration.® § 757. Statutory provisions. Statutes have been passed in the majority of the states defining and punishing the crime of sodomy in all its branches, whether sodomy proper,’ bug- gery,” or bestiality;* and some of these statutes include acts not heretofore criminal. Many of these statutes designate the offense as “the crime against nature,”® “the bestial crime against nature,” or the “detestable and abominable crime against nature,’’® “the infamous crime against nature,” 7 and the like, including there under all such acts, whether with man or beast.® Some of these statutes provide for the punishment without any attempt at a definition of the crime, in which case, in all states in which the common law originally prevailed or has been adopt- ed by statute, the common-law definition of the crime will pre- vail.® Diversity in statutory provisions or in the phraseology of these various statutes is found, upon ultimate analysis, to be the cause of the seeming inharmony and conflict in the au- thorities upon various points, as pointed out in this chapter. § 758. Elements of the offense. The essential elements of the crime of sodomy in any of its branches are very similar in character to those of the kindred crime of rape.* 4Legislature may, of course, de- bestiality and sodomy may be em- clare the doing of certain acts to braced in the term ‘crime against nature,’ as felony embraces murder, larceny, ete., though we think that the term is more generally used in reference to sodomy.” Ausman v. Veal, 10 Ind. 355, 71 Am. Dec. 331, 1850. “Bestiality is commerce between a human being and a brute of the opposite sex.” Perkins, J., in Aus- man v. Veal, 10 Ind. 355, 71 Am. Dec. 381, 1858. Is the limitation to “opposite sex” good under present state of the law on the subject, quere. 3 See 4 See 5 See supra, § 754. supra, § 755. supra, § 754, footnotes, 13, 14. 1See 2 See 3 See supra, § 754. supra, § 755. supra, § 756 constitute the crime of sodomy, al- though they would not have consti- tuted it at common law. State v. Vicknair, 52 La. Ann. 1921, 28 So. 273, 1900. 5 Ibid, 1900. 6 State v. Whitmarsh, — S. D. —, 128 N. W. 580, 1910. 7Honselman v. People, 168 Ill. 172, 48 N. E. 304, 1897; Kelly v. People, 192 Ill. 119, 85 Am. St. Rep. 323, 61 N. E. 425, 1901. 8Ibid. 1901; Honselman v. Peo- ple, 168 Ill. 172, 48 N. E. 304, 1897; State v. Williams, 34 La. Ann. 87, 1882. 9Prindle v. State, 31 Tex. Crim. Rep. 551, 37 Am. St. Rep. 833, 21 S. W. 360, 1893. 1See supra, §§ 681, et seq. 970 CRIMINAL LAW. [§ 758 Assault is an element in the crime of sodomy, when the sub- ject of the act is a nonconsenting human being;? but it is other- wise in those cases where the subject is a beast.® Penetration of the body of the catamite, pathic, or subject is absolutely necessary to constitute the crime of sodomy, both at common law* and under statute;® but it is not necessary that the penetration shall be to any particular distance,® and the fact of penetration may be proved by circumstantial evi- dence,’ in which case it is the duty of the court to charge the jury on the law of circumstantial evidence.® 2In defining assault as an ele- ment of the crime of sodomy, the court need not charge the penalty for assault and battery. Darling v. State, — Tex. Crim. Rep. —. 47 8. W. 1005, 1898. Instructions — Simple assault.— Where there is evidence that defend- ant was guilty of the crime charged, —assault with intent to commit, etc.—an instruction that the jury might render one of two verdicts: (1) Guilty as charged, or (2) not guilty,—is not erroneous, though excluding a verdict of simple as- sault. People v. Swist, 136 Cal. 520, 69 Pac. 223, 1902. —Assault and battery—Where no assault or battery is charged, except as a part of the assault to commit the crime, it is not error to refuse to instruct in the law of assault and battery. White v. Com. 115 Ky. 473, 73 S. W. 1120, 1903. 8 Assault not an element where the victim is not a human _ being. People v. Oates, 142 Cal. 12, 75 Pac. 337, 1904. 4Stephen, Digest, Crim. Law, art. 168; 2 Russell, Crimes, 698; Rex v. Jacobs, Russ. & R. C. C. 331. See Reg. v. Jellyman, 8 Car. & P. 604. In Iowa, it has been ruled not to be indictable at common law. Estes v. Carter, 10 Iowa, 400, 1860. In Texas sodomy is now indict- able by statute. Ex parte Bergen, 14 Tex. App. 52, 1883; Prindle v. State, 31 Tex. Crim. Rep. 551, 37 Am, St. Rep. 833, 21 8. W. 360, 1893. —As to prior law, see Frazier v. State, 39 Tex. 390, 1873. 5[Eng.] Rex v. Reekspear, 1 Moody, C. C. 342. [Iowa] State v. Gage, 139 Iowa, 401, 116 N. W. 596, 1908. [La.] State v. Vicknair, 52 La. Ann. 1921, 28 So. 273, 1900. [Ohio] Foster v. State, 1 Ohio C. C. 467, 1 Ohio C. D. 261. [Tex.] Al- mendaris v. State, Tex. Crim. Rep. —, 73 8. W. 1055, 1903; Green v. State, — Tex. Crim. Rep. —, 79 S. W. 304, 1904. Circumstantial evidence may establish the fact as well as direct testimony. State v. Gage, 139 Iowa, 401, 116 N. W. 596, 1908. 6State v. McGruder, 741, 101 N. W. 646, 1904. 7State v. Gage, 139 Iowa, 401, 116 N. W. 596, 1908. Instruction that there must have been some penetration, but of no particular distance, and that emissio seminis is necessary, cannot be com- plained of by the defendant. State v. McGruder, 125 Iowa, 741, 101 N. W. 646, 1904. 8 Juxtaposition to jennet, on part of defendant, being proved, it was held that the penetration might be proved by circumstantial evidence only, in Almendaris v. State, — Tex. Crim, Rep. —, 73 S. W. 1055, 1903. Instruction as to penetration to the effect that if the jury had a reasonable doubt as to its ac- complishment, they should acquit the accused, held proper, in Moody v. State, 57 Tex. Crim. Rep. 76, 121 S. W. 1117, 1909. 125 Iowa, § 760] SODOMY. 971 Emissio seminis® was held at the common law ™ to be a neces- sary element in the consummation of the crime in some cases," and not to be essential in others.* Under statute in the vari- ous states * emission need not be proved in order to make out a consummated offense.'* § 759. Attempts to commit sodomy. Provisions of the criminal law making punishable attempts to commit a felony apply to the crime of sodomy;? but it is to be noted that an assault with intent to commit sodomy is an entirely distinct offense from an attempt to commit sodomy.’ Punishment for attempts to commit sodomy is a matter of statutory regulation.® § 760. Indictment. of the statute is generally sufficient.’ 9See supra, § 698. As to emissio seminis in sodomy, see 11 A. & E. Ann. Cas. 94; 36 Cyc. 502; and 25 Am. & Eng. Enc. Law, 2d ed. 142. —In rape, see supra, § 698. 10See discussions in State v. Vicknair, 52 La. Ann. 1921, 28 So. 273, 1900, where the cases are col- lected. 113 Co. Inst. 59; 1 Hale, P. C. 629; 1 Hawk. P. C. 4. [Eng.] Rex v. Cozins, 6 Car. & P. 351; Staf- ford’s Case, 12 Coke, 37. [Mich.] People v. Hodgkin, 94 Mich. 27, 34 Am. St. Rep. 321, 53 N. W. 794, 9 Am. Crim. Rep. 658, 1892; statutes regulating the matter have been re- pealed, leaving the common-law doctrine in force and controlling. [Ohio] Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536, 1846. 12 State v. McGruder, 125 Iowa, 741, 101 N. W. 646, 1904; White v. Com. 115 Ky. 478, 78 S. W. 1120, 1903. Penetration of beast without emis- sion constitutes buggery. Com. v. Thomas, 1 Va. Cas. 307, 1812. 13See supra, § 757. 14[Eng.] Rex v. Cozins, 6 Car. & P. 351, 1834; Rex v. Reekspear, 1 Moody, C. C. 342. [Ky.] White v. Com. 115 Ky. 473, 73 8. W. 1120, 1903. [La.] State v. Vicknair, 52 La. Ann. 1921, 28 So. 273, 1900. [Ohio] Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536, 1846; Foster Charging the offense in the language This rule applies when v. State, 1 Ohio C. C. 467, 1 Ohio C. D. 261. [Va.] Com. v. Thomas, 1 Va. Cas. 307, 1812. 1 People v. Oates, 142 Cal. 12, 75 Pac. 337, 1904; Davis v. State, 3 Harr. & J. 154, 1810. 2 State v. Romans, 21 Wash. 284, 57 Pac. 819, 1899. Sodomy not defined by statute; a prosecution for an assault with intent to commit sodomy may be sustained under statute making all common-law crimes indictable. “Hence, while the attempt might be punished, the successful perpetra- tion of the act would escape punish- ment.” 25 Am. & Eng. Enc. Law, 2d ed. 147, citing State v. Place, 5 Wash. 773, 32 Pac. 736, 1893, but this has been corrected by statute. 3 State v. Frank, 103 Mo. 120, 15 S. W. 330, 1890. Punishment for attempt under statute providing for one half punishment for the crime, see State v. King, 9 N. D. 149, 82 N. W. 423, 1900. Upon conviction of attempt to commit sodomy, sentence of fifteen years may be imposed, where punishment for the crime itself is fixed at not less than five years; and statute providing that attempt may be punished by any term not exceeding one half the maximum term, ete. State v. Stone, 40 Mont. 88, 105 Pac. 89, 1909. 1[Conn.] Whiting v. State, 14 CRIMINAL LAW. [§ 760 972 there is a sufficient description of the offense intended to be created by the language used by the legislature. An indict- ment charging the offense of sodomy must set out such facts as put the defendant upon notice as to the specific acts; it is not enough to charge the offense in the very words of the stat- ute. The term “sodomy” has been held to be a sufficient description of the offense,* and so of the “infamous crime against nature;”’® and an indictment charging the defendant did commit “the crime against nature,” in that by doing cer- tain specific acts he did then and there commit the crime of “sodomy,” has been held to charge but a single offense.® Sex need not be alleged in an indictment, because the sex of an actor or a pathic is equally irrelevant, where the acts constituting the offense are clearly set forth and fall within Conn. 487, 36 Am. Dec. 499, 1842. Fundament or anus alleged to [Md.] Parkinson v. State, 14 Md. 184, 74 Am. Dec. 522, 1859. [Mo.] Simmons v. State, 12 Mo. 268, 49 Am. Dec. 131, 1848. [Ohio] Hess v. State, 5 Ohio, 5, 22 Am. Dec. 767, 1831. [S. C.] State v. Smart, 4 Rich. L. 356, 55 Am. Dec. 683, 1851. General, though not universal, tule is that in indictment for of- fense created by statute, it is suf- ficient to charge or describe the of- fense in the words of the statute. People v. Taylor, 3 Denio, 91, 1846. See Moffatt v. State, 11 Ark. 169, 1850; Whiting v. State, 14 Conn. 487, 36 Am. Dec. 499, 1842; Com. vy. Cook, 138 B. Mon. 149, 1852. —Not always _ sufficient, and whether or not sufficient depends upon the manner of stating the of- fense in the statute. If every fact necessary to constitute the offense is charged, or necessarily implied, an indictment in the words of the statute would be sufficient; other- wise not. Com. v. Stout, 7 B. Mon. 247, 1847. 2Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544, 1854. See notes in 61 Am. Dec. 552 and 94 Am, Dec, 252-258. 8State v. Campbell, 29 Tex. 44, 94 Am. Dec. 251, 1867. Contents of a sufficient indictment stated. State v. Romans, 21 Wash. 284, 57 Pac. 819, 1899. have been penetrated by accused with his private parts in copulation with a woman, sufficiently charges the crime of sodomy. James v. State, — Tex. Crim. Rep. —. 134 S. W. 699, 1911. Indictment charging defendant did “wilfully, etc. make an assault on one blank, a boy six years of age, with the intent to commit then and there, upon the person of the said blank, the detestable and abominable crime against nature, in violence, ete.,” sufficiently alleges the details of the offense charged. State v. Whitmarsh, — S. D. —, 128 N. W. 580, 1910. Indictment held not to charge the offense of sodomy, in Harvey v. State, 55 Tex. Crim. Rep. 199, 115 S. W. 1193, 1909. 4State v. Williams, 34 La. Ann. 87, 1882; Ex parte Bergen, 14 Tex. App. 52, 1883. 5[Ala.] Bradford v. State, 104 Ala. 68, 58 Am. St. Rep. 24, 16 So. 107, 1894. [Cal.] People v. Wil- liams, 59 Cal. 397, 1881. ([La.] State v. Williams, 34 La. Ann. 87, 1882. [Mass.] Com. v. Dill, 160 Mass. 586, 36 N. E. 472, 1894. See supra, § 18. 6 Bradford v. State, 104 Ala. 68, 53 Am. St. Rep. 24, 16 So. 107, 1893; State v. Thibodeaux, 127 La. 332, 53 So. 582, 1910. § 761] SODOMY. 973 the statutory prohibition; thus, where the indictment alleged that the crime was committed upon a person named, and the name given was applicable to either sex, the failure to desig- nate the sex was held not to vitiate the indictment.” Actor or pathic agent need not be alleged, where the charge is against adults and the particular act or acts set out are clearly within the statutory definition of sodomy.® Buggery® being alleged, charging copulation with a “sow, it is a sufficient description of the animal.’ Attempt to commit sodomy being charged, and the crime be- ing described in the words of the statute, and the statute mak- ing an attempt a crime, is sufficient; ™ but in charging attempt- ed buggery some overt act as constituting the offense must be alleged.” § 761. Evidence. In a prosecution on a charge of the crime of sodomy, particularly in sodomy proper and buggery, it is indispensable that the evidence shall show that there was penetration,’ but emission need not be shown? to warrant con- ”? viction.® 7 Adams v. State, 48 Tex. Crim. Rep. 90, 122 Am. St. Rep. 733, 86 S. W. 334, 1905. “Carnal knowledge” of the body of Frank Dérby was held to be fatally defective for failure to allege that Frank Derby was a male person, for the words “carnal knowl- edge” refer to sexual connection. People v. Carroll, 1 Cal. App. 2, 81 Pac. 680, 1905. 8 State v. Vicknair, 52 La. Ann. 1921, 28 So. 273, 1900. 9See supra, § 755. 10Langford v. State, 48 Tex. Crim, Rep. 561, 89 S. W. 880, 1907. 11 People v. Erwin, 4 Cal. App. 394, 88 Pac. 371, 1906. Allegation of certain specific acts by defendant, held sufficient in in- dictment for attempt. State v. Smith, 187 Mo. 25, 38 S. W. 717, 1897. 12 State v. Hefner, 129 N. C. 548, 40 S. E. 2, 1901. 1See supra, § 758, footnotes, 4-8. 2See supra, § 758, footnotes, 9-14. 8[Ga.] Hodges v. State, 94 Ga. 5938, 19 S. E. 758, 1894. [Iowa] State v. Gage, 189 Iowa, 401, 116 N. The fact of penetration may be shown by circum- W. 596, 1908. [Tex.] Cross v. State, 17 Tex. App. 476, 1885. As to sufficiency of evidence to warrant conviction, see Mullins v. State, 45 Tex. Crim. Rep. 465, 76 S. W. 560, 1903; Langford v. State, 48 Tex. Crim. Rep. 561, 89 S. W. 830, 1905; Moody v. State, 57 Tex. Crim. Rep. 76, 121 S. W. 1117, 1909. As to evidence sufficient to justi- fy a conviction of an attempt to commit the crime against nature, see People v. Wilson, 119 Cal. 384, 51 Pac. 639, 1897. Certain evidence stated, held suf- ficient to sustain conviction of an attempt. People v. Wilson, 119 Cal. 384, 51 Pac. 639, 1897. Copulation.—Evidence in particu- lar case held sufficient to show copulation. Langford v. State, 48 Tex. Crim. Rep. 561, 89 S. W. 830, 1905. Evidence as to distance at which act visible at night, improperly ex- cluded. Speer v. State, 55 Tex. Crim. Rep. 368, 116 S. W. 568, 57 ee Crim. Rep. 297, 123 S. W. 415, 1909. , 974 CRIMINAL LAW. [§ 761 stantial evidence,* the same as in other crimes, where such evi- dence is sufficient to satisfy the jury beyond a reasonable doubt. Complaint by pathic, a young boy, to his mother, may be shown, together with the particulars thereof, but not the fact that he accused a particular person of the act.’ The fact no complaint was made by a participant in the act for a year afver the commission of the crime does not cast doubt upon the truth of his testimony.® Corroboration of the catamite or pathic is necessary in those cases where he consented to the act, because, being a willing participant, he is to be regarded as an accomplice, and the jury must be so instructed in those cases in which there is not any doubt as to consent.’ Testimony as to good character of the accused is admissible in those cases’ where he denies the accusation, and declares he never before saw the prosecuting witness.® Evidence in particular case, held to support conviction of sodomy against body of female child. People v. Abrams, 249 Ill. 619, 94 N. E. 985, 1911. Evidence in particular case, held not to exclude every reasonable hy- pothesis except that of guilt of ac- cused. Mullins v. State, 45 Tex. Crim. Rep. 465, 76 8. W. 560, 1903. Imbecile boy testifying his father told him what to say, but further testifying denying that the accusa- tion was true, is insufficient to sus- tain a conviction. People v. Desches- sere, 69 App. Div. 217, 74 N. Y. Supp. 761, 16 N. Y. Crim. Rep. 338, 1902. Pathic, a boy of fourteen years; the question of guilt of the accused resting upon the testimony of two physicians, one testifying he did not know whether there was penetra- tion or not; and the other giving a decided opinion that there was no penetration, a conviction will not be warranted. Hodges v. State, 94 Ga. 593, 19 S. E. 758, 1894. Similar attempt a few days prior to the act charged, and as to the declaration made by the accused at that time as to similar acts with other boys, cannot be testified to by a witness in « prosecution on a charge of sodomy. Com. v. Snow, 111 Mass. 411, 1873. 4State v. Gage, 139 Iowa, 401, 116 N. W. 596, 1908. Jury may’ infer fact of penetra- tion. Cross v. State, 17 Tex. App. 476, 1885. 5 People v. Swist, 1386 Cal. 520, 69 Pac. 223, 1902. 6Honselman v. People, 168 IIl. 172, 48 N. E. 304, 1897. See State vy. Vicknair, 52 La. Ann. 1921, 28 So. 273, 1900. Complaint and prosecution as soon as reasonably practicable after commission of the offense are not necessary. State v. Wilkins, 221 Mo. 444, 120 S. W. 22, 1909. 7 Medis v. State, 27 Tex. App. 194, 11 Am. St. Rep. 192, 11 S. W. 112, 1889. As to declarations of party as- saulted to corroborate his testimony, see Foster v. State, 1 Ohio C. C. 467, 1 Ohio C. D. 261, 1886. Corroboration of participant not furnished by other testimony, suf- ficient to sustain conviction, Honsel- man v. People, 168 Ill. 172, 48 N. E. 804, 1897. —Of boy between six and seven years of age. Kelly v. People, 192 Til. 119, 85 Am. St. Rep. 323, 61 N. E. 425, 1901. 8 People v. Bahr, 74 App. Div. 117, 77 N. Y. Supp. 443, 17 N. Y. Crim. Rep. 17, 1902. § 762] SODOMY. 975 § 762. Defenses—Consent. Consent of the catamite or the pathic does not affect the criminality of the act, but makes the consenting party an accomplice; ' and if the act charged be within the statutory definition of the crime, it is immaterial whether an adult defendant be charged as actor or pathic.” Such consent cannot be interposed as a defense.* One consent- ing to the commission of the crime upon himself, being an ac- complice in the crime, his testimony is not sufficient to procure a conviction, without corroboration;* but in the case of boy of tender years, consent cannot be regarded as given, by reason of infancy and incapability of understanding the nature of the act;>® for that reason he is not considered as an accom- plice; * and a conviction may be had upon his uncorroborated testimony.” 1Com. v. Poindexter, 183 Ky. 720, 118 S. W. 948, 1909. 2State v. Vicknair, 52 La. Ann. 1921, 28 So. 273, 1900. 3 Reg. v. Allen, 2 Car. & K. 869, 3 Cox, C. C. 270, 1 Den. C. C. 364, Temple & M. 55, 18 L. J. Mag. Cas. N. S. 72, 13 Jur. 108, 1849; Reg. v. Jellyman, 8 Car. & P. 604; Com. v. Smith, 14 Luzerne Leg. Reg. 362, 1885. 42 Russell, Crimes, 6th Am. ed. 698; State v. Wilkins, 221 Mo. 444, 120 S. W. 22, 1909. As to corroboration see Com. v. Snow, 111 Mass. 411, 1873; Com. v. Smith, 14 Luzerne Leg. Reg. 362, 1885. 5 Mascolo v. Montesanto, 61 Conn. 50, 29 Am. St. Rep. 170, 23 Atl. 714, 1891. See Reg. v. Lock, L. R. 2 C. C. 10, 12 Cox, C. C. 244, 42 L. J. Mag. Cas. N. S. 5, 27 L. T. N.S. 661, 21 Week. Rep. 144, supra, §§ 699, 750. An adult and a boy of twelve years of age committing an un- natural offense, the adult, being the pathic, may be convicted. Reg. v. Allen, 1 Den. C. C. 364, Temple & M. 55, 2 Car. & K. 869, 3 Cox, C. C. 270, 18 L. J. Mag. Cas. N. S. 72, 13 Jur. 108; Mascolo v. Montesanto, 61 Conn. 50, 29 Am. St. Rep. 170, 23 Atl. 714, 1891. Indictment—The allegation, “had a venereal affair,” is not essential. Lambertson v. People, 5 Park. Crim. Rep. 200, 1861. —In Texas it is said not to be enough to charge the offense in gen- eral terms. The acts constituting the offense should be charged. State v. Campbell, 29 Tex. 44, 94 Am. Dee. 251, 1867. —In England an indictment was held bad for uncertainty which charged that the two defendants, being persons of wicked and un- natural dispositions, did in an open and a public place unlawfully meet together, with the intent of com- mitting with each other, openly, lewdly, and indecently in that pub- lic place, divers nasty, wicked, filthy, lewd, beastly, unnatural, and sodomitical practices, and then and there unlawfully, wickedly, openly, lewdly, and indecently did commit with the other, in the sight and view of divers of the liege subjects, in the said public place there pass- ing, divers such practices as afore- said. Reg. v. Rowed, 2 Gale & D. 518, 3 Q. B. 180, 6 Jur. 396, 11 L. J. Mag. Cas. N.S. 74. See Davis v. State, 3 Harr. & J. 154, 1810. 6 Means v. State, 125 Wis. 650 104 N. W. 815, 1905. 7Kelly v. People, 192 Ill. 119, 85 Am. St. Rep. 323, 61 N. E. 425, 1901. Imbecile boy, who, if of sufficient mind to consent to the act or authorize the reception of his evi- ’ CRIMINAL LAW. (§ 762 976 Attempts to commit the offense, and assaults with intent,’ are indictable at common law.® § 763. —Infancy. In the crime of sodomy, as in the kin- dred crime of rape,! infancy may be set up as a defense,* the presumption being in favor of an infant under the age of four- teen years.2 Regarding the common-law presumption as to a child under fourteen years of age being applicable to this spe- cies of crime, there is little if any direct authority, aside from Reg. v. Hartlen;* but a consideration of the reasonableness of the law shows that it is applicable, for the reason that the de- gree of carnal knowledge necessary to involve criminal respon- sibility is the same as it is in the crime of rape.® § 764. —Insanity. The fact of the insanity of the ac- cused canbe set up as a defense in a prosecution on an accusa- tion of the crime of sodomy, the same as it can in prosecutions for other crimes, and in those cases where the act resulted from an irresistible insane impulse, the accused should be acquit- ted; ? and the same is true where the accused is unable to com- prehend the nature and consequences of the act.” § 765. Punishment. At common law, the crime of sodo- my was a felony punishable by death;* and for this reason the crime is punishable, in the absence of any statutory provi- sion, in all those states where the common law originally pre- vailed, or where, by statute, so much of the common law of England as is applicable to local conditions and circumstances has been adopted. And where no punishment is prescribed §8See supra, §§ 212 et seq. 1See supra, §§ 681 et seq. 2See supra, §§ 686-688. dence, would be an accomplice, a conviction cannot be sustained upon his uncorroborated testimony. Peo- ple v. Deschessere, 69 App. Div. 217, 74 N. Y. Supp. 761, 16 N. Y. Crim. Rep. 338, 1902. 8 [Eng.] Reg. v. Eaton, 8 Car. & P. 417, 1838; Reg. v. Lock, L. R. 2 C. C. 12, 12 Cox, C. C. 244, 42 L. J. Mag. Cas. N. 8. 5, 27 L. T. N.S. 661, 21 Week. Rep. 144; Reg. v. Rowed, 2 Gale & D. 518, 3 Q. B. 180, 6 Jur. 396, 11 L. J. Mag. Cas. N.S. 74; Rex v. Hickman, 1 Moody, C. C. 34. [Cal.] People v. Williams, 59 Cal. 397, 1881. [Mo.] State v. Frank, 103 Mo. 120, 15 8. W. 330, 1891. [Wash.] State v. Place, 5 Wash, 773, 32 Pac. 736, 1893. 3 Reg. v. Hartlen, 30 N. S. 317, 1897. 4R. v. Hartlen, 30 N. S. 317, 1897. 5See Archbald, Crim. Pr. & PI. 777; 1 Russell, Crimes, 879; Rex v. Cozins, 6 Car. & P. 351, 1834; Rex v. Reekspear, 1 Moody, C. C. 342. 1State v. McGruder, 125 Iowa, 741, 101 N. W. 646, 1904. 2 Ibid. 1State v. La Forrest, 71 Vt. 311, 45 Atl: 225, 1899, 2 Ibid, § 765] SODOMY. 977 by statute, the act may be punished by fine or imprisonment, or both, in the discretion of the court; in those cases where a statute prescribes that imprisonment must be in a house of correction, unless the state prison be specified, imprisonment can be in the house of correction only.? The matter of pun- ishment in most, if not all, the states, is regulated by statute. 8 Ibid. Crim. L. Vol. I.—62. CHAPTER XVII. MAYHEM. § 766. Mayhem is inflicting wounds diminishing capacity for self-defense. § 767. Intent to be inferred from facts. § 768. Offense is felony. § 769. May be convicted of lesser offense, § 770. Indictment. § 771. Defenses. § 766. Mayhem is inflicting wounds diminishing ca- pacity for self-defense. | Mayhem, at common law,’ says Mr. East, is such a bodily hurt as renders a man less able in fighting to defend himself or annoy his adversary; but if the injury be such as disfigures him only, without diminishing his corporal abilities, it does not fall within the crime of mayhem.’ Upon this distinction, the cutting off, disabling, or weakening the man’s hand, or finger, or striking out an eye, or fore tooth, or castrating him, or, as Lord Coke adds, breaking his skull, are said to be maims; but the cutting off his ear or nose are not such at common law. 1 Bl. Com. 204; 5 Words & Phrases, 4449. [Ga.] Adams v. Barrett, 5 Ga. 404, 1848. [Mass.] Com. v. Newell, 7 Mass. 245, 1810. [N. Y.] Foster v. People, 50 N. Y. 598, 1872; Foster v. People, 1 Cowen Crim. Rep. 508, 1872. [Pa.] Scott v. Com. 6 Serg. & R. 224, 1820; Com. v. Port- er, 1 Pittsb. 502, 1859. [Tenn.] Terrell v. State, 86 Tenn. 523, 8 S. W. 212, 8 Am. Crim. Rep. 532, 1888. Definition of Glanville is: ‘“May- hem signifies the breaking of any bone, or, injuring the head by wound- ing or abrasion. In such case the accused is obliged to purge himself by the ordeal; that is, by the hot iron if he be a freeman, and by wa- ter if he be a rustic.” See Foster v. People, 1 Cowen, Crim. Rep. 508, 514, 1872. —Of Pulton is: “Maiheming is when one member of the common- weale shall take from another mem- ber of the same, a naturall member of his bodie, or the use and benefit thereof, and thereby disable him to serve the commonweale by his weap- ons in the time of warre, or by his labour in the time of peace, and also diminisheth the strength of his bodie, and weaken him thereby to get his owne living, and by that means the commonweale is in a sort deprived of the use of one of her members.” De Pace Regis, 1609, folio, 15, § 58, quoted in 2 Bouvier’s Law Dict. Rawle’s Rev. p. 384. 21 East, P. C. 398. See Rex v. Hagan, 8 Car. & P. 167. See Terrell v. State, 86 Tenn. 523, 8 S. W. 212, 8 Am. Crim. Rep. 532, 1888. 978 § 766]. MAYHEM. 979 By statutes, however, in England and in some of the United States, the offense has been extended, so as to cover all ma- licious disabling injuries to the person.? Act must be wilful- ly * and maliciously done to constitute the crime of mayhem.? 31 East, P. C. 398; Co. Litt. 126, 288; 3 Co. Inst. 62, 118; Staundf. 38 b; 1 Hawk. P. C. chap. 44, §§ 1, 2; 2 Hawk. P. C. chap. 23, § 16; 3 Bl. Com. 121; 4 Bl. Com. 205. [Eng.] Reg. v. Latimer, 54 L. T. N. 8. 768, 55 L. J. Mag. Cas. N. 8. 135, L. R. 17 Q. B. Div. 359, 16 Cox, C. C. 70, 51 J. P. 184, 1886. [Ala.] Eskridge v. State, 25 Ala. 30, 1854. [Conn.] State v. Danforth, 3 Conn. 112, 1819. [Dak.] United States v. Gunther, 5 Dak. 234, 38 N. W. 79, 1888. [Ga.] Kitchens v. State, 80 Ga. 810, 7 S. E. 209, 1888. [Ky.] Com. v. Haw- kins, 11 Bush, 603, 1 Am. Crim. Rep. 65, 1871. [Mo.] State v. Bo- hannon, 21 Mo. 490, 1855; State v. Brown, 60 Mo. 141, 1875; State v. Ma Foo, 110 Mo. 7, 33 Am. St. Rep. 414, 19 S. W. 222, 1892. [N. Y.] Foster v. People, 50 N. Y. 598, 1872; Godfrey v. People, 63 N. Y. 207, 1875. [Ohio] Riflemaker v. State, 25 Ohio St. 395, 1874. [Or.] State v. Vowels, 4 Or. 324, 1873; State v. Cody, 18 Or. 506, 23 Pac. 891, 24 Pac. 895, 1890. [Pa.] Scott v. Com. 6 Serg. & R. 224, 1820. [Tex.] Davis v. State, 22 Tex. App. 45, 2 S. W. 6380, 1886. See footnote 7, this section. A distinction between English and New York statute is given in Tully v. People, 67 N. Y. 15, 1876. By § 209 of the New York Penal Code of 1882, the offense includes all kinds of mutilation, and § 207 prohibits self-mutilation. In North Carolina.—To constitute a mayhem, under the statute, by biting off an ear, it is not necessary that the whole ear should be bitten off. It is sufficient if a part only is taken off, provided enough is taken off to alter and impair the natural personal appearance, and, to ordinary observation, to render the person less comely. State v. Girkin, 23 N. C. (1 Ired. L.} 121, 1840. —Indictment for cutting off an ear in that state, it need not be al- leged whether it was the right or the left ear. State v. Green, 29 N. C. (7 Ired. L.) 39, 1846. In an indictment under the same statute, an intent to disfigure is prima facie to be inferred from an act which does in fact disfigure, un- less that presumption be repelled by evidence on the part of the accused of a different intent, or at least of the absence of the intent mentioned in the statute. State v. Girkin, 23 N. C. (1 Ired. L.) 121, 1840. See State v. Jones, 70 Iowa, 505, 30 N. W. 750, 1886; Terrell v. State, 86 Tenn. 523, 8 S. W. 212, 1888; State v. Hair, 37 Minn. 351, 34 N. W. 893, 7 Am. Crim. Rep. 369, 1887. In Tennessee.—An indictment un- der the 55th section of the Penal Code, for putting out an eye, must aver that the party was thereby “maimed.” Chick v. State, 7 Humph. 161, 1846. Statutory offense of inflicting a wound less than mayhem, see State v. Watson, 41 La. Ann. 598, 7 So, 125, 8 Am. Crim. Rep. 548, 1889. 4State v. Hair, 37 Minn. 351, 7 Am. Crim. Rep. 369, 34 N. W. 893, 1887. 5 Bowers v. State, 24 Tex. App. 542, 5 Am. St. Rep. 901, 7 S. W. 247, 1888. Assault with intent to maim, evi- dence admissible for state in prosecu- tion for mayhem. Cole v. State, — Tex. Crim. Rep. —, 138 S. W. 109, 1911. Evidence — Not necessary to prove malice aforethought, or a precon- ceived intention to commit the may- hem. People v. Wright. 93 Cal. 564, 29 Pac. 240, 1892; Chick v. State, 7 Humph. 161, 1846. Instruction act was done with “malice aforethought” must be proved to the satisfaction of the jury before a conviction is warranted is improper, because the term “mal- 980 CRIMINAL LAW. [§ 766 The intent with which the act is done is an essential ingredi- ent in the crime of mayhem,® but the act being proved to have occurred in an encounter, the law presumes the act was done with the intent required by the law to constitute guilt.’ ice aforethought” is not synonymous with the word “maliciously” in the statute defining the offense. Green v. State, 151 Ala. 14, 125 Am. St. Rep. 17, 44 So. 194, 15 A. & E. Ann. Cas. 81, 1907. Instruction to effect that where the parties engaged in mortal strife, and the injured person was armed with a deadly weapon while accused was unarmed, the latter must be ac- quitted of a charge of mayhem for biting off a portion of his antag- onist’s ear, is improper because not including all the elements of self- defense. Ibid. lnstruction requiring jury to find accused feloniously made assault up- on complaining witness with intent to maim and disfigure by throwing aw quantity of sulphuric acid, through which prosecutor’s eyes were dis- troyed, is correct without a quali- fication requiring the jury to find the acid of a character reasonably calculated to produce that result, and the defendant’s knowledge of that fact. State v. Nerzinger, 220 Mo. 36, 119 S. W. 379, 1909. —‘Wilfully” and “maliciously” must be explained to the jury by the court in the trial of an indict- ment charging mayhem. Bowers v. State, 24 Tex. App. 542, 5 Am. St. Rep. 901, 7 S. W. 247, 1888. Strong proof of malice which is required in the case of murder is re- quired to support a conviction under statute making mayhem a felony punishable by death. Com. v. M’Bir- nie, Addison (Pa.) 28, 1792. 6 [Minn.] State v. Hair, 37 Minn. 355, 34 N. W. 893, 7 Am. Crim. Rep. 369, 1887. [Ohio] State v. Johnson, 58 Ohio St. 417, 65 Am, St. Rep. 769, 51 N. EH. 40, 11 Am. Crim. Rep. 603, 1898. [Tenn.] Terrell v. State, 86 Tenn. 523, 8 S. W. 212, 8 Am. Crim. Rep. 532, 1888. 7 State v, Evans, 2 N.C. (1 Iayw.) 291, 1796. As to what acts constitute may- hem see notes in 65 Am. St. Rep. 771-775, and 8 Am. Crim. Rep. 540- 543, Assault with pistol, made with- out justification, in which accused maimed, wounded, or disfigured the prosecuting witness; accused will be guilty of mayhem under the statute, if the wound was inflicted under such circumstances that he would have been guilty of murder or man- slaughter had prosecuting witness died from the effects thereof. State v. Mulhall, 199 Mo. 202, 7 L.R.A. (N.S.) 630, 97 S. W. 583, 8 A. & E, Ann. Cas. 781, 1906. Biting off a small portion of the ear, which does not disfigure the person, and could only be discovered on close inspection or examination, when attention is directed to it, is not mayhem under the statute of Alabama; State v. Abram, 10 Ala. 928, 1847; and so substantially in Louisiana; State v. Harrison, 30 La. Ann. 1329, 1878. See Bowers v. State, 24 Tex. App. 542, 5 Am. St. Rep. 901, 7 S. W. 247, 1888. Biting or striking off ear, unlaw- fully, maliciously, and intentionally, being made mayhem by statute, the alleged injury to the ear must be such as to disfigure to ordinary observation as contradistinguished from a mere wound which scars the member. Green v. State, 151 Ala. 14, 125 Am. St. Rep. 17, 44 So. 194, 15 A. & E. Ann. Cas. 81, 1907. Cutting off of ear or nose is not mayhem at common law. 4 Bl. Com. 205. Compare: State v. Abram, 10 Ala, 928, 1847. Destroying eyes with red pepper, there being no evidence of intention to destroy the eye, and the evidence showing that red pepper will not have the effect to destroy an eye, unless permitted to remain longer than thé time required to remove § 768] MAYHEM. 981 § 767. Intent to be inferred from facts. Where maiming is proved to have been done, the inference from facts indicating design is that the act was done on purpose, and with an intent to maim;? and no sudden rencontre shall be deemed sufficient to excuse the party maiming, unless it be done in necessary self-defense against some great bodily harm attempted by the person maimed, and where there are no other means of pre- venting it;® which facts must be shown by the defense. And under the ‘statutes, while a specific intent to inflict the particu- lar injury must be shown, the duration of this intent is not material, if such antecedent specific intent be proved.* Consent of the party injured is no defense to an indictment for mayhem.° § 768. Offense is felony. All mayhems in England are felony, because anciently the offender had judgment of the it in the course of ordinary events; accused cannot be convicted of may- hem. Dahlberg v. People, 225 Ill. 485, 80 N. E. 310, 1907. Putting out an eye is a mayhem at common law. Chick v. State, 7 Humph. 161, 1846; Com. v. Reed, 3 Am. L. J. 140, 1850. Putting out eye with intent to kill, maim, or disfigure by an assault with a large quantity of sulphuric acid being charged in the indictment, sufficiently advises the defendant of the charge under the statute. State v. Nerzinger, 220 Mo. 36, 119 S. W. 379, 1909. Tearing and cutting off ear of prosecutor, evidence of, held to sus- tain conviction on the charge of mayhem. People v. Conners, 246 Ill. 9, 92 N. E. 567, 1910. 1[Ala.] State v. Simmons, 3 Ala. 497, 1842. [Dak.] United States v. Gunther, 5 Dak. 234, 38 N. W. 79, 1888. [N. C.] State v. Girkin, 23 N. C. (1 Ired. L.) 121, 1840. [Tex.] Davis v. State, 22 Tex. App. 45, 2S. W. 630, 1886. Specific intent to maim is not necessary. Terrell v. State, 86 Tenn. 528, 8 8S. W. 212, 8 Am. Crim. Rep. 532, 1888. 2 [Cal] People v. Wright, 93 Cal. 564, 29 Pac. 240, 1892. [Conn.] State v. Danforth, 3 Conn. 112, 1819. [Ky.] Crane v. Com. 8 Ky. L. Rep. 515, 1 S. W. 880, 1886. [N. C.] State v. Evans, 2 N. C. (1 Hayw.) 291, 1796; State v. Crawford, 13 N. C, (2 Dev. L.) 425, 1830. In New York, however, lying in wait, or some "other act showing premeditation, must be proved. God- frey v. People, 63 N. Y. 207, 1875. See also State v. Hair, 37 Minn. 351, 34 N. W. 893, 7 Am. Crim. Rep. 369, 1887. 8 State v. Skidmore, 87 N. C. 509, 1882. See State v. Hair, 37 Minn. 351, 34 N. W. 893, 7 Am. Crim. Rep. 369, 1887. 4[Ala.] Molette v. State, 49 Ala. 18, 1873. [Iowa] State v. Jones, 70 lowa, 505, 30 N. W. 750, 1886. [N. Y.] Burke v. People, 4 Hun, 481, 1875; Foster v. People, 50 N. Y. 598, 1872; Godfrey v. People, 63 N. Y. 207, 1875, 5 Hun, 369. [Or.] State v. Cody, 18 Or. 506, 23 Pac. 891, 24 Pac. 895, 1890. [Tex.] Slattery v. State, 41 Tex. 619, 1874. In indictments for attempt, the particular part of the body aimed at need not be specified. Ridenour v. State, 38 Ohio St. 272, 1882; Clark’s Case, 6 Gratt. 675, 1849. See also supra § 231. 5 Supra, § 182. 982 CRIMINAL LAW. [§ 768 loss of the same member which he had occasioned to the suffer- er; but now the only judgment which remains at common law is of fine and imprisonment; from whence the offense seems to have been considered more in the nature of an aggravated trespass. Lord Coke accordingly classes it as an offense “un- der felonies deserving death, and above all other inferior of- fenses.”’ 4 § 769. May be convicted of lesser offense. On an in- dictment for mayhem, there may be a conviction of any lesser offense (e. g., assault and battery) which the indictment in- cludes.! 1Co, Litt. 127; 1 Hawk. P. C. chap. 44,§ 3; 2 Hawk. P. C. chap. 23, § 18; 4 Bl. Com. 205, 206. Federal crimes act.—Mayhem is punishable under the Federal crimes act. See United States v. Scroggins, Hempst. 478, Fed. Cas. No. 16,243. In Georgia, mayhem is said not to be felony at common law, except when by castration. Adams v. Bar- rett, 5 Ga. 404, 1848. In Massachusetts — Technical of- fense of mayhem has never, in Massachusetts, been considered a fel- ony, either by statute or at common law. Com. v. Newell, 7 Mass. 245, 1810. —Felonious assault.”—The words “felonious assaulter,” in the statute, do not make it felony. State v. Dan- forth, 3 Conn. 112, 1819. Com. v. Newell, 7 Mass. 245, 1810. In Minnesota, see State v. Hair, 37 Minn. 351, 34 N. W. 893, 7 Am. Crim. Rep. 369, 1887. In Missouri, see State v. Thomp- son, 30 Mo. 470, 1860; State v. Brown, 60 Mo. 141, 1875. In New York.—As to New York practice, see Foster v. People, 50 N. Y. 598, 1872. The indictment in New York must aver premeditated design. Tully v. People, 67 N. ¥. 15, 1876. In Pennsylvania, the practice is to charge it as a felony. Com. v. Reed, 3 Am. L. J. 140, 1850; Wharton, Precedents, 162. See Scott v. Com. 6 Serg. & R. 224, 1820; and see Wharton, Crim. Pl. & Pr. § 260. In Virginia to same effect as in Pennsylvania, see Canada v. Com. 22 Gratt, 899, 1872. 1[Cal.] People v. Wright, 93 Cal. 564, 29 Pac. 240, 1892. [Ind.] State v. Fisher, 103 Ind. 530, 3 N. E. 379, 1885. [Mass.] Com. v. Blaney, 133 Mass. 571, 1882. [Mo.] State v. Ma- Foo, 110 Mo. 7, 33 Am. St. Rep. 414, 19 8S. W. 222, 1892. [Or.] State v. Cody, 18 Or. 506, 23 Pac. 891, 24 Pac. 895, 1890. See infra, § 837. Failure to instruct as to assault and battery. The defendant asked the court to instruct the jury that the defendant could not be convicted of the crime of mayhem, for the evi- dence was insufficient to justify the same. The court refused, and in- structed the jury that it was a ques- tion of fact for them to determine whether or not the defendant was guilty of mayhem. Held, on appeal, that where the offense charged nec- essarily includes a lesser offense, it is the duty of the trial court to in- struct the jury that they have a right to find the accused guilty of the latter where there is doubt of his guilt of the former; and for this reason the charge of the court below was erroneous. State v. Cody, 18 Or. 506, 23 Pac. 891, 24 Pac. 895, 1890. Instruction accused could not be found guilty of less offense than mayhem, if found guilty at all, was held to be correct in People v. Wright, 98 Cal. 564, 29 Pac. 240, 1892. § 771] MAYHEM. 983 § 770. Indictment.’ Indictment for mayhem, to be valid and sufficient, must set forth acts and facts constituting the offense as defined by the common law or by the statute under which the prosecution is had.? Thus, an allegation in an in- dictment that the defendant wilfully assaulted and cut with a knife, thereby maiming, wounding, and disfiguring the prose- cuting witness, sufficiently charges the offense under a statute against maiming, wounding, or disfiguring;* and an allega- tion that the accused maliciously set fire to a cannon cracker which was held by the prosecuting witness in his hand, and thereby caused its explosion and the destruction of the latter’s hand, has been held to sufficiently charge that the hand was blown off wilfully and maliciously;* and an allegation that accused maliciously threw a certain acid into the eyes of the prosecuting witness, by reason whereof they were destroyed, sufficiently describes the crime of mayhem under the statute.’ But an allegation in an indictment charging that the accused assaulted the prosecuting witness and beat him over the head with a hickory club, etc., thereby maiming and disabling him, is insufficient to charge the crime of mayhem.® § 771. Defenses. The fact that the accused was free from blame in bringing on the encounter or difficulty in which the act inflicted, charged as mayhem, occurred, cannot be set up as a defense ;? 1For indictments in mayhem, see Wharton, Precedents, 192, et seq. 2Lying in wait being provided in statute, failure to incorporate into the indictment a charge that the of- fense was committed “lying in wait” does not render it’ invalid. State v. Holmes, 4 Penn. (Del.) 196, 55 Atl. 343, 1903. Fact act charged is punishable as mayhem by statute, the facts in the case being distinctly alleged, the des- ignation of the crime as “mayhem” will not render indictment invalid. Swan v. Com. 5 Ky. L. Rep. 288, 1883. Allegation charging accused slit the eye and nose of the prosecuting witness is insufficient under a stat- and the fact that the party injured consented ute providing that every person who shall, of malice aforethought, put out an eye or slit or cut the nose of another with intent to kill or maim, shall be guilty of mayhem. State v. Kyle, 177 Mo. 659, 76 S. W. 1014, 1903. 3 State v. Vaughn, 164 Mo. 536, 65 8S. W. 236, 13 Am. Crim. Rep. 209, 1901. 4Neblett v. State, 47 Tex. Crim. Rep. 573, 85 S. W. 813, 1905. 5 State v. Holmes, 4 Penn. (Del.) 196, 55 Atl. 348, 1903. 6Com. v. Somerville, 1 Va. Cas. 164, 5 Am. Dec. 514, 1811. 1Green v. State, 151 Ala. 14, 125 Am. St. Rep. 17, 44 So. 194, 15 A. & E. Ann. Cas. 81, 1907. 984 CRIMINAL LAW. {§ 771 to the act constitutes no defense to an indictment for may- hem.? Defense of conviction of assault for the same acts and state of facts alleged in an indictment for mayhem may be set up as a bar to a prosecution under the latter indictment.® Defense accused not present at affray, and for that reason could not have been guilty of the crime charged, may be set up as a defense on the trial of an indictment for mayhem. Where such a defense is interposed and is sought to be estab- lished by proof of an alibi, the court must instruct the jury that the only question before them is as to the defendant’s guilt or innocence beyond a reasonable doubt, and that in ar- riving at a conclusion, they are to consider the evidence as to the alibi, as well as the incriminating evidence offered by the prosecution, and that if they have a reasonable doubt as to the guilt of the accused, they should acquit, otherwise they should convict.* Self-defense can always be set up as a defense in a trial of an indictment for mayhem, but a plea of self-defense in such a case is good only where it is shown that the act was done by the accused in order to save his own life, or to prevent great bodily harm to himself,> and that the resistance on his part was in proportion to the injury threatened.® 2See supra, § 182, 767. 8 State v. Wondra, 114 Minn. 457, 131 N. W. 496, 1911. 4People v. Conners, 246 Ill. 9, 92 N, E. 567, 1910. 5Green v. State, 151 Ala. 14, 125 Am. St. Rep. 17, 44 So. 194, 15 A. & E. Ann. Cas. 81, 1907. See [Eng.] Cook v. Beal, 1 Ld. Raym. 176; Cockcroft v. Smith, 2 Salk. 642. [Ala.] State v. Abram, 10 Ala. 928, 1847; Molette v. State, 49 Ala. 18, 1873. [Cal.] People v. Wright, 93 Cal. 564, 29 Pac. 240, 1892. [Ind.] Hayden v. State, 4 Blackf. 546, 1838. [N. C.] State v. Evans, 2 N. C. (1 Hayw.) 291, 1795; State v. Craw- ford, 13 N. C. (2 Dev. L.) 425, 1830; State v. Skidmore, 87 N. C. 509, 1882. [Wash.] State v. Conahan, 10 Wash. 268, 38 Pac. 996, 1894. See also note in 15 A. & E. Ann. Cas. 82, where the cases above cited are discussed at length. 6Green v. State, 151 Ala. 14, 125 Am. St. Rep. 17, 44 So. 194, 15 A. & E. Ann. Cas. 81, 1907. CHAPTER XVIIL ABDUCTION AND KIDNAPPING, 772. 773. 774, 775. 776. 777, 778, 779. 780. Evidence. Defenses. Mm MD DM MM tm Mm UM Indictment must conform to statutory conditions. Woman in such case may be a witness. Indictment must be in county of offense. Original actors are all principals. Kidnapping and “inveiglement” specifically indictable. False imprisonment necessarily involved. Indictment—Sufficiency of allegations in. § 772. Indictment must conform to statutory condi- tions. At common law the abduction of a woman, either by force or fraud, for the purpose of defilement, has been held not to be indictable as an abduction; * but when involving force, it is indictable as an assault, and in any view it may be in- dictable as an attempt to ravish or to have illicit connection. Under the statute of 3 Hen. VII. chap. 3,? from which several 1State v. Sullivan, 85 N. C. 506, 1881, where it is said that the state- ment in 2 Archbold, Crim. Pl. & Pr. 301, that abduction is so indictable, is unsustained by 1 East, P. C. 458; 1 Russell, Crimes, 569, which are the authorities cited. 2 Statute 3 Hen. VII. ch. 3.—That whereas women, as well maidens as widows and wives, having sub- stances, some in goods movable, and some in lands and tenements, and some being heirs apparent unto their ancestors, for the lucre of such sub- stances, have been oftentimes taken by misdoers contrary to their will, and afterwards married to such mis- doers, or to others by their consent, or defiled.” “That whatsoever per- son or persons shall take any woman so against her will, unlawfully, that is to say maid, widow, or wife, such taking and the procuring and abetting to the same, and also re- ceiving wittingly the same woman, so taken against her will, shall be felony; and that such misdoers, tak- ers, and procurers to the same, and receivers knowing the said offense in form aforesaid, shall be reputed and judged as principal felons; and upon conviction thereof shall be sen- tenced to undergo a confinement in the penitentiary not less then two nor more than ten years; provided always that this act shall not extend to any person taking any woman, only claiming her as his ward or bond woman.” 3 Hen. VII., cap. 2; 1 Hale, P. C. 660. As to seduction, see infra, § 2103. Under the English statute there may be a conviction of detention, on proof of nonreturn of a child, coup- led with evasive answers, see Reg. v. Johnson, 50 L. T. N. 8. 759, 15 Cox, C. C. 481, 48 J. P. 759. 985 CRIMINAL LAW. [§ 772 986 of the American statutes of abduction are taken, and which in some states is said to be part of the common law, the indict- ment must allege that the taking was for lucre, in order to show which, it must be proved that the woman had substance, either real or personal, or was heir apparent; and it must be further alleged and proved that she was taken against her will, and afterward married to the misdoer, or to some other by his assent, or that she was defiled, that is, carnally known; be- cause no other case is within the preamble of the statute, to which the enacting clause clearly refers, for it does not say that “whatsoever person or persons shall take any woman against her will,” but, “whatsoever person or persons shall take any woman so against her will.”*® If the “defiling” were by force, it is no defense that the abduction was by fraud.‘ The statute of 4 & 5 Phil. & M. chap. 8, makes it indictable “to take and convey away,” etc., “any maid or woman child 3 Davis, Crim. Law, 137; 1 Hale, P. C. 660. As to Kentucky statute, see Ma- lone v. Com. 91 Ky. 307, 15 S. W. 856, 1891; Higgins v. Com. 94 Ky. 54, 21 S. W. 231, 9 Am. Crim. Rep. 20, 1893; Cargill v. Com. 12 Ky. L. Rep. 149, 13 S. W. 916, 1890; Payner v. Com. — Ky. —, 19 8S. W. 927, 1892. As to Missouri statute, see State v. Maloney, 105 Mo. 10, 16 8. W. 519, 1891. Female abducted need not have been unmarried. People v. Newton, 11 Cal. App. 762, 106 Pac. 247, 1909. It need not be alleged or shown that the taking was with an inten- tion to marry or defile her, for the words of the statute do not require such an intent, nor does the want of it in any way lessen the injury. 1 Hawk. P. C. chap. 16, §§ 4, 5, 6; 1 East, P. C. 453. As to Indiana statute, see Lyons v. State, 52 Ind. 426, 1 Am. Crim. Rep. 28, 1876; Osborn v. State, 52 Ind. 526, 1 Am. Crim. Rep. 25, 1876. Taking the crutch of a cripple girl or holding a girl by the hand while pleading with her for carnal knowl- edge is not detention within the statute. Paynter v. Com. 21 Ky. L. Rep. 1562, 55 S. W. 687, 1900. Instruction erroneous where court said: “The jury are instructed that by the word ‘concubinage,’ as used in the indictment and instructions, is meant the act or practice of a man cohabiting in sexual intercourse with a woman to whom he is not married. If the jury should believe from the evidence that the defend- ant alone, or in connection with an- other, did take the witness, A. E. D., away from her father without his consent, and that A. E. D. was at this time a female under the age of eighteen years, for the purpose of cohabiting with her as man and woman in sexual intercourse, either for himself or for another, for any length of time, even for a single act of sexual intercourse, without the authority of a marriage, it would be sufficient to constitute the offenses charged in the second count of the indictment;” 7. e. taking away for the purpose of concubinage. State v. Gibson, 111 Mo. 92, 19 S. W. 980, 1892. See supra, § 750. 4Beyer v. People, 86 N. Y. 369, 1881; Schnicker v. People, 88 N. Y. 192, 1882. § 772] ABDUCTION AND KIDNAPPING. 987 unmarried, being under the age of sixteen years, out or from the possession, custody, and governance, and against the will of the father of such maid or woman child,” ete. ‘This was re-enacted and modified by Stat. 24 & 55 Vict. chap. 100.° It has been held that it is abduction, under the English stat- utes, for A to persuade B to permit C to go away by falsely pretending that he (A) had a place for O.° It is no defense 5 Under Alabama statute Haygood v. State, 98 Ala. 61, 13 So. 325, 1893; United States v. Zes Cloya, 35 Fed. 493, 1888. Under California statute the tak- ing away must be without the con- sent of parent or guardian, and must be for purposes of prostitution or concubinage. People v. Demousset, 71 Cal. 611, 12 Pac. 788, 7 Am. Crim. Rep. 1, 1887; People v. Fowler, 88 Cal. 136, 25 Pac. 1110, 1891; Ex parte Estrado, 88 Cal. 316, 26 Pac. 209, 1891; People v. Dolan, 96 Cal. 315, 31 Pac. 107, 1892. For Illinois statute, see Hender- son v. People, 124 Ill. 607, 7 Am. St. Rep. 391, 17 N. E. 68, 8 Am. Crim. Rep. 5, 1888; Herman v. People, 131 Ill. 594, 9 L.R.A. 182, 22 N. E. 471, 1889. For Indiana statute, see Stevens v. State, 112 Ind. 433, 14 N. E. 251, 1887; Nichols v. State, 127 Ind. 406, 28 N. E. 839, 1890. The Kansas statute is in nearly the same terms as the California statute. State v. Overstreet, 43 Kan. 299, 23 Pac. 572, 1890. For Maryland statute, see Brown v. State, 72 Md. 468, 20 Atl. 186, 1890. For Michigan statute, see People v. Congdon, 77 Mich. 351, 43 N. W. 986, 1889. The Minnesota statute—As to what constitutes abduction under Minnesota statute, see State v. Jamison, 38 Minn. 21, 35 N. W. 712, 1887; State v. Keith, 47 Minn. 559, 50 N. W. 691, 1891. The Missouri statute is similar to the California statute. It is neces- sary that the specific intent or pur- pose shall be present; the consent of the girl, either to the taking or the illicit intercourse is immaterial; the taking need not be by force. State v. Stone, 106 Mo. 1, 16 S. W. 890, 1891; State v. Gibson, 108 Mo. 575, 18 S. W. 1109, 1891, 111 Mo. 92, 19 S. W. 980, 1892; State v. Johnson, 115 Mo. 480, 22 S. W. 463, 9 Am. Crim. Rep. 7, 1898; State v. Wil- kinson, 121 Mo. 485, 26 S. W. 366, 1894, The New York statute, under which the taking must be for pur- poses of sexual intercourse, etc.; see People v. Wah Lee Mon, 37 N. Y. 8. R. 283, 138 N. Y. Supp. 767, 1891; People v. Betsinger, 10 N. Y. Crim. Rep. 187, 21 N. Y. Supp. 136, 1892; People v. Powell, 24 N. Y. Week. Dig. 159, 1886. For North Carolina statute, State v. Chisenhall, 106 N. C. 676, 11S. E. 518, 1890. As to Tennessee statute, see Scruggs v. State, 90 Tenn. 81, 15 S. W. 1074, 1891. As to Texas statute, see Mason v. State, 29 Tex. App. 24, 14 S. W. 71, 1890. 6 [Eng.] Reg. v. Hopkins, Car. & M. 254. [Cal.] Ex parte Estrado, 88 Cal. 316, 26 Pac. 209, 1891. [N. Y.] People v. De Leon, 109 N. Y. 226, 4 Am. St. Rep. 444, 16 N. E. 46, 7 Am. Crim. Rep. 314, 1888. See infra, § 2103. Concubinage—Single act of sexual intercourse.—For a discussion (un- der the American statutes) as to whether a single act of sexual inter- course may constitute concubinage, see [Ill] Henderson v. People, 124 Ill. 607, 7 Am. St. Rep. 391, 17 N. E. 68, 8 Am. Crim. Rep. 5, 1888. [Kan.] State v. Overstreet, 43 Kan. 299, 23 Pac. 572, 1890. [Mo.] State v. Fea- sel, 74 Mo. 524, 1881 (disapproved in State v. Wilkinson, 121 Mo. 485, 26 8S. W. 366, 1894); State v. Stone, 988 CRIMINAL LAW. [§ 772 that the elopement took place at the girl’s request, she having been seduced by the defendant.’ A temporary enticement of the girl from the father’s house for the purpose of illicit inter- course is within the statutes. But when two girls run away together, neither abducts the other.® The statutory offenses of seduction and of “enticing” for pur- pose of prostitution will be hereafter further considered.” § 773. Woman in such case may be a witness. A woman thus taken against her will and married may be a wit- ness against the offender, if the force were continued upon her till the marriage; because then he is no husband de jure, or of right, and she may herself prove such continuing force. It has been doubted whether, in cases in which the actual mar- riage is good by the consent of the inveigled woman, obtained after her forcible abduction, her evidence should be allowed. But the opinion appears to have prevailed, that it should even then be admitted; because otherwise the offender would be permitted to take advantage of his own wrong; and the very act of marriage, which is a principal ingredient of his crime, would, by a forced construction of the law, be made use of to stop the mouth of the most material witness against him.! 106 Mo. 1, 16 S. W. 890, 1891; State v. Gibson, 108 Mo. 575, 18 S. W. 1109, 1891, 111 Mo. 92, 19 S. W. 980, 1892. For distinction between prostitu- tion and concubinage, see State v. Goodwin, 33 Kan. 538, 6 Pac. 899, 5 Am. Crim. Rep. 1, 1885; State v. Gibson, 108 Mo. 575, 18 S. W. 1109, 1891, 111 Mo. 92, 19 S. W. 980, 1892; United States v. Zes Cloya, 35 Fed. 493, 1888. Prostitution and concubinage can- not be charged in the same count as being the purposes of the alleged ab- duction, see Slocum v. People, 90 Ill. 274, 1878; Henderson v. People, 124 Ill. 607, 7 Am. St. Rep. 391, 17 N. E, 68, 8 Am. Crim. Rep. 5, 1888. 7 Reg. v. Diswell, 2 Cox, C. C. 279. 8 [Eng.] Reg. v. Timmins, Bell, C. C. 276, 30 L. J. Mag. Cas. N. S. 45, 6 Jur. N. 8. 13809, 3 L. T. N. S. 337, 9 Week. Rep. 36, 8 Cox, C. C. 401. [Cal.] People v. Demousset, 71 Cal. 611, 12 Pac. 788, 7 Am. Crim. Rep. 1, 1887, [Minn.] State v. Jamison, 38 Minn. 21, 35 N. W. 712, 1887. [Mo.] State v. Johnson, 115 Mo. 480, 22 S. W. 463, 9 Am. Crim. Rep. 7, 1893. Compare: State v. Keith, 47 Minn. 559, 50 N. W. 691, 1891. Aliter, when the girl paid the man a visit of only a few hours, he not knowing whether she had a home or parents. Reg. v. Hibbert, L. R. 1 C. C. 184. But see Reg. v. Baillie, 8 Cox, C. C. 238. As to who has charge of the girl under the Iowa statute, see State v. Ruhl, 8 Iowa, 447, 1859, cited infra 2103, 2108. Bona fide ignorance as to the girl’s age is no defense; see infra, § 780. 9 Reg. v. Meadows, Car. & K. 399, Dears. C. C. 161, note, 1844, ex- aia in Reg. v. Kipps, 4 Cox, C. C. 10 Infra, § 2103. 14 Bl. Com. 209; 1 East, P. C. 454. See Wharton, Crim. Ev. § 394; 1 § 776] ABDUCTION AND KIDNAPPING. 989 There can be no doubt of her competency where the marriage was against her will at the time, notwithstanding her subse- quent assent. For if she were a competent witness at any time after the crime committed, no subsequent assent can in- capacitate her, much less can any mere lapse of time; though these circumstances may affect the credit of her testimony.* § 774. Indictment must be in county of offense. If a woman be forcibly taken in one county, and afterward go vol- untarily into another county, and be there married or defiled with her own consent, it has been argued that the captor is not indictable in either; for the offense, which consists in the forci- ble taking and subsequent marriage or defilement, is not com- plete in either. But if the force is continued upon her at all in the county into which she was so taken, the offender, so it is said, may be indicted there, although the actual marriage or defilement afterward took place with her own consent.! § 775. Original actors are all principals. Though not only the misdoers themselves, but the procurers and any who wittingly receive the woman so taken against her will, are made principals by this statute, yet he who only receives the offender himself is but an accessory after the fact. And those who are only privy to the marriage, and not to the forcible taking, she consenting thereto (which must be inferred where the woman is under no constraint at the time of the marriage), are not within the statute.’ It is no excuse that the man who marries her was not the author of the original force.* § 776. Kidnapping and “inveiglement” specifically in- dictable. Kidnapping, which is seizure and removal for the purpose of transportation, enslavement, or involuntary serv- Enc. Ev. 45. State v. Gordon, 46 N. J. L. 432, 4 Am. Crim. Rep. 1, 1884. 21 East, P. C. 454. Infra, 2052. As to conviction on uncorroborated testimony of woman, see infra, § 779. 11 Hawk. P. C. chap. 16, p. 11; 1 East, P. C. 453; 1 Russell, Crimes, 9th Am. ed. 945. See State v. John- son, 115 Mo. 480, 22 S. W. 463, 9 Am. Crim. Rep. 7, 1893. Compare: Supra, §§ 334, 335. Unlawfully conveying or taking away a woman or child under the age of consent with intent, etc., un- der the statute; evidence that de- fendant brought the girl to the coun- ty in which the indictment is found, from another state, and there de- tained her by force or by persuasion; this is evidence of such an unlawful conveying or taking within the state as is contemplated by the statute. State v. Gordon, 46 N. J. L. 482, 4 Am. Crim. Rep. 1, 1884. 11 Hawk. P. C. chap. 16, §§ 9, 10; 1 East, P. C. 452-538. 2Hawk. P. C. chap. 16, §§ 7, 8; 1 East, P. C. 454. Infra, § 2052. 990 CRIMINAL LAW. [§ 776 ice, has been held to be an offense at common law,’ and is pun- ished by fine and imprisonment.” As kidnapping is to be con- sidered the procuring the intoxication of a sailor and his sur- reptitious removal to a ship, even though the destiny of the ship be not to another state or country.® Consent is no defense to the indictment when not given vol- untarily and intelligently by a person of sufficient age to exercise an intelligent and free choice.* And under the New York statute consent will be no defense when fraudulently ob- tained.5 Abduction of children. Statutes exist in several jurisdictions making the abduction of children indictable. Under these statutes it has been held that neither transportation to a foreign 1State v. Rollins, 8 N. H. 550, 1837; 1 East, P. C. 430. See Com. v. Westervelt, 11 Phila. 461, 1876. As to what constitutes the crime of kidnapping, both at common law and under the statute, see note in 4 Am. St. Rep. 447-450. 24 Bl. Com. 219. Acts constituting kidnapping.— Where a person having in his cus- tody a mulatto boy, six years of age, who had been placed with him by the overseers of the poor of a town, sold him to a person residing in an- other state with the intention that he should be carried into that state, and held in servitude until he arrived at the age of twenty-one years, and he carried the boy into another town and delivered him there, it was held that he was guilty of kidnapping. Moody v. People, 20 Ill. 315, 1858. See State v. Whaley, 2 Harr. (Del.) 538, 1837. Under the California statute there must be removal at least into anoth- er county. People v. Fick, 89 Cal. 144, 26 Pac. 759, 1891; Ex parte Keil, 85 Cal. 309, 24 Pac. 742, 1890. For Georgia statute, see Cochran v. State, 91 Ga. 763, 18 S. E. 16, 1893. For Indiana statute, see State v. Kimmerling, 124 Ind. 382, 24 N. E. 722, 1890; Eberling v. State, 136 Ind. 117, 35 N. E. 1023, 1894. For Massachusetts statute, see Com. v. Blodgett, 12 Met. 56, 1846; Com. v. Nickerson, 5 Allen, 518, 1862. See also supra, § 538. For New York Code, see People v. Camp, 66 Hun, 531, 21 N. Y. Supp. 741, 1893; People v. De Leon, 109° N. Y. 226, 4 Am. St. Rep. 444, 16 N. E. 46, 7 Am. Crim. Rep. 314, 1888. As to Ohio, see Mayo v. State, 43 Ohio St. 567, 3 N. E. 712, 6 Am. Crim. Rep. 352, 1885. For Oregon statute, see Re Kelly, 46 Fed. 653, 1890. As to Pennsylvania statute, see Burns v. Com. 129 Pa, 138, 18 Atl. 756, 1889; Hamilton v. Com. 3 Penr. & W. 142, 1831. As to Virginia, see Thomas v. Com. 2 Leigh, 741, 1830. As to indictment, see infra, § 778. 8 [Fed.] Re Kelly, 46 Fed. 653, 1890. [Cal.] People v. Chu Quong, 15 Cal. 332, 1860; Ex parte Keil, 85 Cal. 309, 24 Pac. 742, 1890. [N. Y.] Hadden v. People, 25 N. Y. 372, 1862. : By the New York Penal Code of 1882, kidnapping, in § 211, includes wilful confining of another against his will without authority of law. 4See supra, §§ 187, 191; infra, § 780. 5 Schnicker v. People, 88 N. Y. 192, 1882; People v. De Leon, 109 N. Y. 226, 4 Am. St. Rep. 444, 16 N, E. 46, 7 Am. Crim. Rep. 314, 1888. § 777] ABDUCTION AND KIDNAPPING. 991 country,® nor actual violence and force? need be proved. When by a decree of divorce a child is given to the mother’s custody, it is abduction under the statute for the father to carry the child away from such custody.® Under a Federal statute the “inveiglement” of children for the purpose of involuntary service in the United States is made specifically indictable,® nor is consent by‘such child a defense.” Inveiglement as an element of seduction will be hereafter considered." § 777. False imprisonment necessarily involved. False imprisonment, which is an unlawful physical restriction of cor- poral liberty, and which will be hereafter discussed in its rela- tions to assault,’ is to be viewed, also, in its relations to ab- duction. There can be no abduction without false imprison- ment, under which term is included all corporal detention by force.? The force, however, need not be tactual. It is enough if, by fear of a greater evil, the party coerced submit to the detention. It is false imprisonment, also, to unlawfully pre- vent a traveler from proceeding on his errand on a public road, even though he is not precluded from going back.* Ex- 6 People v. Chu Quong, 15 Cal. 20, 1898. [Minn.] State v. Dineen, 332, 1862; State v. Rollins, 8 N. H. 10 Minn. 407, Gil. 325, 1865. [Mo.| 550, 1837. 7[Ill.] Moody v. People, 20 Ill. 315, 1858. [Mass.] Com. v. Nicker- son, 5 Allen, 518, 1862. [Or.] Re Kelly, 46 Fed. 653, 1890. [Tex.] Redfield v. State, 24 Tex. 133, 1859. 8 State v. Faryar, 41 N. H. 53, 1860. 9 United States v. Aucarola, 17 Blatchf. 423, 1 Fed. 676, 1880. 10Ibid. Supra, § 180. ll Infra, § 2113. lInfra, § 804. 2[Eng.] Rex v. Webb, 1 W. BI. 19, 1746; Reg. v. Johnson, 50 L. T. N. S. 759, 15 Cox. C. C. 481, 48 J. P. 759, 1884. [Ala.] State v. Guest, 6 Ala, 778, 1844. [Cal.] Ex parte Keil, 85 Cal. 309, 24 Pac. 742, 1890. [Fla.] Barber v. State, 13 Fla. 675, 1869. [Ky.] Cargill v. Com. 12 Ky. L. Rep. 149, 18 S. W. 916, 1890; Malone v. Com. 91 Ky. 307, 15 8S. W. 856, 1891; Higgins v. Com. 94 Ky. 54, 21 S. W. 231, 9 Am. Crim. Rep. State v. Maloney, 105 Mo. 10, 16 S. W. 519, 1891. [N. H.] State v. Rol- lins, 8 N. H. 550, 1837. [N.C.] State v. Lunsford, 81 N. C. 528, 1879. [S. C.] State v. Edge, 1 Strobh. L. 91, 1846. [Tenn.] Smith v. State, 7 Humph. 43, 1846. [Tex.] Harkins v. State, 6 Tex. App. 452, 1819. See infra, § 808. As to necessity of alleging manner of detention in indictment, see infra, § 778. Place of detention has jurisdiction. See Lavina v. State, 63 Ga. 513, 1879. 3 Ibid. Arrest need not be by actual force. See Wharton, Crim. Pl. & Pr. § 3; Johnson v. Tompkins, Baldw. 571, Fed. Cas. No. 7,416, 1833; Her- ring v. State, 3 Tex. App. 108, 1877. Unavoidable delay in taking bail is not false imprisonment. See Car- gill v. State, 8 Tex. App. 431, 1880. 4Smith v. State, 7 Humph. 43, 992 CRIMINAL LAW. [§ 777 cessive discipline, also, may be a false imprisonment, as where a father confined a son in a damp, dark cellar.» Arrest and detention, also, by an officer, real or pretended, acting without authority, constitute false imprisonment.6 An unlawful im- prisonment in itself involves an assault.” § 778. Indictment—Sufficiency of allegations in. An indictment charging abduction or kidnapping must set out all the material elements which are necessary to constitute the offense as defined by the particular statute under which the prosecution is instituted. Where the crime is charged in the language of the statute defining and punishing the offense and prescribing the elements thereof, it will be sufficient,’ but it is not necessary that the exact language of the legislature be used; it is sufficient if the indictment use terms equivalent thereto.? 1846; Bloomer v. State, 3 Sneed, 66, 1855; Harkins v. State, 6 Tex. App. 452, 1879. 5 Fletcher v. People, 52 Ill. 395, 1869. 6 [Ark.] Vanderpool v. State, 34 Ark. 174, 1880. [Cal] Ex parte Sternes, 82 Cal. 245, 23 Pac. 38, 1889; People v. Fick, 89 Cal. 144, 26 Pac. 759, 1891. [Ind.] State v. Kimmerling, 124 Ind. 382, 24 N. E. 722, 1890. [N. J.] Francisco v. State, 24. N. J. L. 30, 1803. TInfra, § 804. 1[Eng.] Reg. v. Hopkins, Car. & M. 254, 1842; Reg. v. Mears, 2 Den. C. C. 79, Temple & M. 414, 20 L. J. Mag. Cas. N. 8. 59, 15 Jur. 66, 4 Cox, C. C. 425; Reg. v. Howell, 4 Fost. & F. 160; Wakefield’s Case, 2 Lewin, C.C.1. [Cal.] People v. Fow- ler, 88 Cal. 136, 25 Pac. 1110, 1891. [Ind.] Nichols v. State, 127 Ind. 406, 26 N. E. 839, 1890. [Kan.] State v. Overstreet, 43 Kan. 299, 23 Pac. 572, 1890. [Ky.] Higgins v. Com. 94 Ky. 54, 21 S. W. 231, 9 Am. Crim, Rep. 20, 1898; Cargill v. Com. 12 Ky. L. Rep. 149, 18 S. W. 916, 1890; Payner v. Com. — Ky. —, 19 $8. W. 927, 1892. [Minn.] State v. Jamison, 38 Minn. 21, 35 N. W. 712, 1887; State v. Keith, 47 Minn. 559, 50 N. W. 691, 1891. [Mo.] State v. Johnson, 115 Mo. 480, 22 S. W. 463, 9 Am. Crim. Rep. 7, 1893. {N. Y.] Beyer v. People, 86 N. Y. 369, 1881; People v. Seeley, 37 Hun, 190, 1885; People v. Sheppard, 44 Hun, 565, 1887; People v. Brandt, 14 N. Y. §. R. 419, 1888; People v. Bet- singer, 10 N. Y. Crim. Rep. 187, 21 N. Y. Supp. 136, 1892; People v. Stott, 4 N. Y. Crim. Rep. 306, 1886; People v. Powell, 4 N. Y. Crim. Rep. 585, 1886; People v. Parshall, 6 Park Crim. Rep. 129. [S. C.] State v. Tidwell, 5 Strobh. L. 1, 1850. “Tf he be charged in the language of the statute creating the crime, and in the manner required by it, then the charge is complete, and in- cludes all that is required to be established in order to constitute the guilt of the accused. In common-law felonies the rule is different.” Hig- gins v. Com. 94 Ky. 54, 21 S. W. 231, 9 Am. Crim. Rep. 20, 1893. See Kaelin v. Com. 84 Ky. 354, 1 S. W. 594, 7 Am. Crim. Rep. 452, 1886; Cundiff v. Com. 86 Ky. 196, 5 S. W. 486, 1887. 2 Miller v. State, 121 Ind. 294, 23 N. E. 94, 1889; Nichols v. State, 127 Ind. 406, 26 N. E. 839, 1890. Statute providing against taking a female “for purposes of prostitu- tion;” an indictment charging the abduction of a “female for the pur- pose of having sexual intercourse with her,” will not be sufficient for the reason that “prostitution means common, indiscriminating, illicit in- tercourse, and not intercourse with § 778] ABDUCTION AND KIDNAPPING. 993 Taking for concubinage or other purposes prohibited by stat- ute; it is not necessary to allege (1) the means by which the abduction was accomplished,® (2) that the girl was taken away without the consent of her father or other custodian,* (3) that the taking was for concubinage, etc., with accused,® (4) and need not charge the actual accomplishment of the concubinage, because the offense is completed by the taking with the unlaw- ful intent.® In those cases in which the statute makes the prior chastity of the female an element in the offense, such chastity must be alleged in the indictment and proved on the trial.’ Detaining woman against her will with intent, etc., being the charge in an indictment, it need not allege that accused did not succeed in accomplishing his purpose.® Placing female in designated houses or institutions being pro- hibited by statute, an indictment charging the offense is in- sufficient where it fails to allege taking and placing a woman one man only.” ([Ind.] Osborn v. State, 52 Ind. 526, 1 Am. Crim. Rep. 25, 1876. See [Iowa] State v. Ruhl, 8 Iowa, 447, 1859. [Me.] State v. Stoyell, 54 Me. 24, 89 Am. Dec. 716, 1866. [Mass.] Com. v. Cook, 12 Met. 93, 1846. [N. Y.] Carpenter v. Peo- ple, 8 Barb. 603, 1850. 3 Cargill v. Com. 12 Ky. L. Rep. 149, 13 S. W. 916, 1890; Payner v. Com. — Ky. —. 19 S. W. 927, 1892; State v. Keith, 47 Minn. 559, 50 N.- W. 691, 1891. 4State v. Jamison, 38 Minn. 21, 35 N. W. 712, 1887; State v. Keith, 47 Minn. 559, 50 N. W. 691, 1891; State v. Kebler, 228 Mo. 367, 128 S. W. 721, 1910. Charging taking female under statutory age for concubinage, ‘etc. ; there is a joinder of two distinct offenses in one count, and for that reason the indictment will be bad for duplicity under the Kansas stat- ute. State v. Goodwin, 33 Kan. 538, 6 Pac. 899, 5 Am. Crim. Rep. 1, 1885. —Under Missouri statute such al- legation has been held sufficient. State v. Johnson, 115 Mo. 480, 22 S. W. 463, 9 Am. Crim. Rep. 7, 1893. Statute prohibiting taking with- Crim. L. Vol. I.—63. out consent, indictment must charge taking from custodian without con- sent of such person. See State v. Johnson, 115 Mo. 480, 22 S. W. 463, 9 Am. Crim. Rep. 7, 1893; Jones v. State, 16 Lea, 466, 1886. Information charging taking of girl beneath statutory age from father or guardian for purposes of concubinage, charging the doing of acts necessary for the accomplish- ment of that purpose, and with that intent, sufficient where duly verified by prosecuting attorney. State v. Beverly, 201 Mo. 550, 100 S. W. 463, 1907. 5 State v. Knost, 207 Mo. 18, 105 S. W. 616, 1907. 6 Ibid. 7 State v. Gibson, 111 Mo. 92, 19 S. W. 980, 1892. Compare: State v. Johnson, 115 Mo. 480, 22 S. W. 463, 9 Am. Crim. Rep. 7, 1893. 8 Smith v. Com. — Ky. —, 127 8. W. 790, 1910. Indictment need not charge ac- cused acted maliciously, wilfully, or feloniously. Higgins v. Com. 94 Ky. 54, 21 S. W. 231, 9 Am. Crim. Rep. 20, 1893. 994 CRIMINAL LAW. [§ 778 named, by force, without mentioning any of the places de- scribed in the statute.® Intent with which the act is done is a necessary element in the offense, and for that reason should be specifically alleged.” Manner of detention need not be averred in the indictment, under some statutes.’ Kidnapping being the charge, the requisite averment would seem to be of an assault, and the carrying away, or transport- ing, the party injured, from his own country to another, un- lawfully and against his will.” § 779. Evidence. On a prosecution for abduction, the burden is on the state to prove its case by establishing all the essential elements of the crime charged;* but this may be done either by direct or circumstantial evidence,’ as by showing 9State v. DeMarco, — N. J. L—, 79 Atl. 418, 1911. See Miller v. State, 121 Ind. 294, 23 N. HE. 94, 1889; Nichols v. State, 127 Ind. 406, 26 N. E. 839, 1890; State v. McCrum, 38 Minn. 154, 36 N. W. 102, 1888. 10 Jones v. State, 16 Lea, 466, 1886. The purpose or intent of the ab- duction is peculiarly for the jury. People v. Newton, 11 Cal. App. 762, 106 Pac. 247, 1909. 11 Cargill v. Com. 12 Ky. L. Rep. 149, 18 S. W. 916, 1890; Payner v. Com. — Ky. —, 19 S. W. 927, 1892. As to detention generally, sec note in 9 Am. Crim. Rep. 22. 12 Click v. State, 3 Tex. 282, 1847. It is not sufficient to charge the defendant with kidnapping general- ly; the indictment should state spe- cifically the facts and circumstances which constitute the offense. Click v. State, 3 Tex. 282, 1847. For other ‘lexas cases on kidnap- ping, see Mason v. State, 29 Tex. App. 24, 14 S. W. 71, 1890; Castillo v. State, 29 Tex. App. 127, 14 8. W. 1011, 1890. 1 [Eng.] Reg. v. Olifier, 10 Cox, C. C. 403. [Cal.] People v. Roderigas, 49 Cal. 9, 1874. [Mass.] Com. v. Whittaker, 131 Mass. 224, 1881. [N. Y.] People v. Plath, 100 N. Y. 590, 4 N. Y. Crim. Rep. 53, 53 Am. Rep. 236, 3 N. E. 790, 6 Am. Crim. Rep. 1, 1885. See also note in 6 Am. Crim. Rep. 14-16. As to sufficiency of evidence to support conviction on prosecution for abducting a female under statutory age, see People v. Newton, 11 Cal. App. 762, lu6 Pac. 247, 1909; State v. Fleetwood, 223 Mo. 69, 122 S. W. 696, 1909. —From her father or custodian for purposes of concubinage, see State v. Beverly, 201 Mo. 550, 100 S. W. 468, 1907; State v. Baldwin, 214 Mo. 290, 113 8. W. 1123, 1908; see State v. Kebler, 228 Mo. 367, 128 ‘§. W. 721, 1910. —From the custody of her mother and without her consent an unmar- ried female under the statutory age, see People v. Claudius, 8 Cal. App. 597, 97 Pac. 687, 1908. See State v. Baldwin, 214 Mo. 290, 113 S. W. 11238, 1908. As to sufficiency of evidence to sustain conviction on charge of un- lawfully detaining woman against her will for the purpose of carnal knowledge, see Norman v. Com. 31 Ky. L. Rep. 1288, 104 S. W. 1024, 1907; Merchant v. Com. 140 Ky. 12, 130 S. W. 793, 1910. 2 People v. Plath, 100 N. Y. 590, 4 N. Y. Crim. Rep. 53, 53 Am. Rep. 236, 3 N. E. 790, 6 Am. Crim. Rep. 1, 1885. § 779] ABDUCTION AND KIDNAPPING. © o an arts, allurements, and persuasion,® deceit and false representa- tions,* force,® fear,® threats,’ use of drugs or intoxicants,® and the like. 8 [Cal.] People v. Demousset, 71 Cal. 611, 12 Pac. 788, 7 Am. Crim. Rep. 1, 1887. [Ill] Slocum v. Peo- ple, 90 Ill. 274, 1878. [Mo.] State v. Johnson, 115 Mo. 480, 22 8S. W. 468, 9 Am. Crim. Rep. 7, 1893. [N. Y¥.] People v. Seeley, 37 Hun, 190, 1885. “Finding she has left her home, the defendant avails himself of that to induce her to continue away from her father’s custody; in my judg- ment he is guilty if his persuasion operated on her mind so as to induce her to leave.” Bramwell, in Reg. v. Olifier, 10 Cox, C. C. 402. “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 possession when in the street, in school or in some place of public resort, or visiting in the house of friends, she is constructively. She is still in their custody for care, keep- ing, and security, and under their governance, for they may control her will by their command. If she go upon a journey, they may follow her and direct her return to them. The mere fact that she entered another state does not alter her relations or obligations with her parents or guardian. Whenever the defendant, with the intent set out in the stat- ute, interposed his will or persua- sion between her and her guardian’s control, so as to overcome her pur- pose and intention to return to her home, the abduction is accom- plished.” Reg. v. Mycock, 12 Cox, C. ©. 28; State v. Gordon, 46 N. J. L, 482, 4 Am. Crim. Rep. 1, 1884. Testimony as to what girl said at time she went away with ac- cused is not admissible to show that she was not enticed away; it is mere hearsay. Bradshaw v. People, 153 Ill. 156, 38 N. E. 652, 9 Am. Crim. Rep. 23, 1894. 4 Beyer v. People, 86 N. Y. 369, 1881; People v. De Leon, 109 N. Y. 226, 4 Am. St. Rep. 444, 16 N. E. 46, 7 Am. Crim. Rep. 314, 1888. See Reg. v. Clarke, 6 Cox, C. C. 412; Reg. v. Young, 14 Cox, C. C. 114; Reg. v. Dee, Ir. L. R. 14 C. L. 468, 15 Cox, C. C. 579, 6 Crim. L. Mag. 220, 1884. 5 [Kan.] State v. Bussey, 58 Kan. 679, 50 Pac. 891, 1897. [Minn.] State v. Jamison, 38 Minn. 21, 35 N. W. 712, 1887; State v. Keith, 47 Minn. 559, 50 N. W. 691, 1891. LN. Y.] Schnicker v. People, 88 N. Y. 192, 1882; Carpenter v. People, 8 Barb. 603, 1850; People v. Seeley, 37 Hun, 190, 1885. [N. C.] State v. Chisenhall, 106 N. C. 676, 11 S. E. 518, 1890. [Tenn.] Scruggs v. State, 90 Tenn. 81, 15 S. W. 1074, 1891. Carrying from one part of city to another by force or against will makes out case under statute. State v. Backarow, 38 La. Ann. 316, 1886. Employing for immoral purposes female under statutory age, being made a criminal offense by the stat- ute, indictment therefor cannot be sustained, unless the evidence shows the employment was accompanied with the taking of her person by some active agency for such pur- pose. People v. Plath, 100 N. Y. 590, 4 N. Y. Crim. Rep. 53, 53 Am. Rep. 236, 3 N. E. 790, 6 Am. Crim. Rep. 1, 1885. Fraudulently leading away a mi- nor from parents against will and without consent contemplates that the act shall be by force or by put- ting in fear; and testimony to the fact that accused compelled minor to go with him, or meet him, is admissible. Barker v. State, 1 Ga. App. 286, 57 S. E. 989, 1909. Letters after the alleged offense, threatening to kill prosecutrix, are not admissible in evidence. State v. Maloney, 105 Mo. 10, 16 S. W. 519, 1891. 6 Schnicker v. People, 88 N. Y. 192, 1882. 7 See Russell, Crimes, 942. 8 South v. State, 97 Tenn. 496, 37 S. W. 210, 1896. 996 CRIMINAL LAW. [§ 779 Intent of accused is an essential element to be shown to be the intent described in the statute;® and this fact may be es- tablished by showing the character of the house to which the girl or woman was taken,’ the conduct of the accused at the time of the alleged offense, where tending to show his intention in the matter," the costume provided for the girl by the keeper of the resort in which she was placed,” the prior marriage of the accused to a prostitute,’® and the like. Proof of previous acts, while not establishing the intention of the accused in the commission of the crime charged,’ tends to show his intention in doing the act charged, and for that reason is admissible in evidence.” Accomplishment of purpose need not be charged in the in- dictment nor shown on the trial, for the reason that the grava- men of the offense consists in the purpose or intent with which the act is done, and is complete the moment the subject of the crime is removed beyond the control of her parents or guar- dians.1° 9State v. Jamison, 38 Minn. 21, 35 N. W. 712, 1887; State v. Gibson, 111 Mo. 92, 19 8, W. 980, 1892. Showing subsequent sexual in- tercourse between the parties es- tablishing the intent of accused. State v. Johnson, 115 Mo. 480, 22 S. W. 463, 9 Am. Crim. Rep. 7, 1893. 10 [Cal.] People v. Marshall, 59 Cal. 386, 1881. [Md.] Brown v. State, 72 Md. 468, 20 Atl. 186, 1890. [N. ¥.] Schnicker v. People, 88 N. Y. 192, 1882. [N.C.] State v. Chis- enhall, 106 N. C. 676, 11 S. E. 518, 1890. 11 People v. Spriggs, 119 App. Div. 236, 104 N. Y. Supp. 539, 1907. Intent to return home from point on route taken by defendant and herself, entertained by prosecutrix when she left home, does not con- clusively show that defendant did not intend to cohabit with her for any length of time, and a conviction is justifiable. State v. Bobbst, 131 Mo. 328, 32 S. W. 1149, 10 Am. Crim. Rep. 3, 1895. 12 People v. Claudius, 8 Cal. App. 597, 97 Pac. 687, 1908. 18 Competent on question of in- tent, which is reasonably to be in- ferred from accused’s relations with the girl and his object. People v. Claudius, 8 Cal. App. 597, 97 Pac. 687, 1908. 14 [Ga.] Cochran v. State, 91 Ga. 768, 18 8. E, 16, 1893. [Minn.] State v. Jamison, 38 Minn. 21, 35 N. W. 712, 1887. [Mo.] State v. Gibson, 111 Mo. 92, 19 S. W. 980, 1892. [N. ¥.] People v. Plath, 100 'N. Y. 590, 4 N. Y. Crim. Rep. 53, 53 Am. Rep. 236, 3 N. E. 790, 6 Am. Crim. Rep. 1, 1885. 15 State v. Keith, 47 Minn. 559, 50 N. W. 691, 1891; Beyer v. People, 86 N. Y. 369, 1881. On charge of enticing, etc., girl un- der sixteen; proof accused invited her to his photographic room, showed her obscene pictures, paid her small sums of money, and on several occa- sions had illicit intercourse with her, until discovered by her mother and removed, will sustain a convic- tion. People v. Cummons, 56 Mich. 544, 23 N. W. 215, 6 Am. Crim. Rep. 221, 1885. , 16 [Cal.] People v. Demousset, 71 Cal. 611, 12 Pac. 788, 7 Am. Crim. Rep. 1, 1887. [Ill.] Slocum v. Peo- ple, 90 Ill. 274, 1878; Henderson v. § 779] ABDUCTION AND KIDNAPPING. 997 Consent wanting on the part of the parent or custodian of a female beneath the statutory age, or of the female herself, need not be shown on the trial,” but the testimony of the father or the legal custodian of the minor, to the effect that he did not consent to the girl going away with the accused, is competent. Detention of female against her will with intent to have car- nal knowledge of her person being charged, it is sufficient for the state to show that the defendant wilfully and intentionally, for the purpose charged, applied such force as to prevent to any extent the exercise by the female of the power of locomo- tion, thus prohibiting her from going and being where she desired.” People, 124 Ill. 607, 7 Am. St. Rep. 391, 17 N. E. 68, 8 Am. Crim. Rep. 5, 1888. [Ky.] Payner v. Com. — Ky. —, 19 8S. W. 927, 1890. [Minn.] State v. Keith, 47 Minn. 559, 50 N. W. 691, #1891. [Mo.] State v. Bobbst, 131 Mo. 328, 32 S. W. 1149, 10 Am. Crim. Rep. 3, 1895; State v. Rorebeck, 158 Mo. 130, 59 S. W. 67, 1900. 17 See [Ga.] Thweatt v. State, 74 Ga. 821, 1885. [Kan.] State v. Bus- sey, 58 Kan. 679, 50 Pac. 891, 1897. [Mo.] State v. Stone, 106 Mo. 1, 16 S. W. 890, 1891; State v. Bobbst, 131 Mo. 328, 32 S. W. 1149, 10 Am. Crim. Rep. 3, 1895. [N. C.] State v. Chisenhall, 106 N. C. 676, 11 S. E. 518, 1890. [Tenn.] Tucker v. State, 8 Lea, 633, 1881; Scruggs v. State, 90 Tenn. 81, 15 S. W. 1074, 1891; South v. State, 97 Tenn. 496, 37 S. W. 210, 1896. Abduction of child under fourteen years of age; charge not necessary to prove taking against father’s will, and without his consent, in order to make out the charge of abducting a child under fourteen years of age under the statute. State v. Burnett, 142 N. C. 577, 55 S. E. 72, 1906. —Charge not made out when there is no force or inducement, and de- parture of child from custody of father is voluntary. State v. Bur- nett, 142 N. C. 577, 55 S. E. 72, 1906. Evidence father sent money to return home on, to the girl, being admitted, is not reversible error, State v. Bobbst, 131 Mo. 328, 32 8S. W. 1149, 10 Am. Crim. Rep. 3, 1895. 18 State v. Baldwin, 214 Mo. 290, 113 S. W. 1123, 1908. 19Robb v. Com. 31 Ky. L. Rep. 246, 101 8. W. 918, 1907. Confining or unlawfully detaining female against her will being charged in the indictment in prose- eution, under a statute which pro- vides that whoever shall unlawfully detain any female, by force or in- timidation, in any room, against her will, for purposes of prostitution, etc., the case will not be made out on proof that a stepfather confined his stepdaughter for purposes of sexual intercourse. Bunfill v. People, 154 Ill. 640, 39 N. EH. 565, 1895. The reason is that the statute by its terms provides for general com- mercial intercourse, and not inter- course with single individuals. The court says that it is clearly shown the object of the legislature, in adopting the act, was to reach that class whose object is to cause the fe- male to become a common prostitute, and this construction of the statute is sustained by the construction giv- en to similar statutes in other states. See Bunfill v. People, 154 Il. 640, 39 N. E. 565, 1895; Fahnestock v. State, 102 Ind. 156, 1 N. E. 372, 1895; Com. v. Cook, 12 Met. 93, 1846. —Carnal intercourse with step- daughter is not within the provi- sions of a statute making it a felony to detain a female by force or in- 998 CRIMINAL LAW. [§ 779 Prior chastity of prosecutrix is not an element in the crime of abduction unless made so by timidation, in any room, against her will, for purposes of prostitu- tion, or with intention to cause such female to become a prostitute. Bun- fill v. People, 154 Ill. 640, 39 N. E. 565, 1895. —Detaining prosecutrix in buggy and driving her into the country against her will constitutes the of- fense of detention under the stat- ute punishing detention for purposes, ete. State v. Maloney, 105 Mo. 10, 16 S. W. 519, 1891. —Not made out by proof of a state of facts which show that ac- cused made advances which were re- pulsed, and that he never had control over the person of the female. Riley v. Com. 21 Ky. L. Rep. 1442, 55 8, W. 547, 1900. Man going into room of sleeping girl, removing the cover and ex- posing her person and his own, with- out awaking her, held guilty under statute providing “taking and de- taining,” ete. to be a felony. Ma- lone v. Com. 91 Ky. 307, 15 S. W. 856, 1891. Taking away female under stat- utory age for purposes of intercourse on a single occasion will not support a conviction for abduction for pur- poses of concubinage. State v. Fea- sel, 74 Mo. 524, 1881. Compare: State v. Wilkinson, 121 Mo. 485, 26 S. W. 366, 1894. 20 See infra, § 780. Chaste character must be shown under statute; chastity of the fe- male is not presumed as against the legal presumption of the innocence of the accused. People v. Roderigas, 49 Cal. 9, 1874; Com. v. Whittaker, 131 Mass, 224, 1881. —Chaste character presumed. -\adre v. State, 5 Iowa, 389, 68 Am. Dec. 708, 1857; State v. Higdon, 32 lowa, 262, 1871; People v. Brewer, 27 Mich. 134, 1873. General reputation as to chastity of the prosecutrix need not be shown by the prosecution, on the case in chief. The presumption of the law is, her previous life and con- statute; °° but her general repu- versation was chaste, and the onus is upon the defendant to show other- wise. [Ill.] Slocum v. People, 90 Ill. 274, 1878; Bradshaw v. People, 153 Ill. 156, 38 N. E. 652, 9 Am. Crim. Rep. 28, 1894. [Iowa] Andre v. State, 5 Iowa, 389, 68 Am. Dec. 708, 1857; State v. Higdon, 32 Iowa, 262, 1871. [Mich.] People v. Brewer, 27 Mich. 134, 1873. —To determine question of chas- tity of prosecutrix, it is proper to extend the inquiry not only to the fact whether she has had previous sexual intercourse, but whether she is pure and chaste in character as to her acts and habits of life. State v. Sutherland, 30 Iowa, 571, 1870. Previous chaste character means actual personal virtue as distinct from general good reputation; hence a single act of illicit connection may be shown. Lyons v. State, 52 Ind. 427, 1 Am. Crim. Rep. 28, 1876. “Previous chaste character,” used in statute, signifies that which the person really is, in distinction from that which she may be reputed to be. Andre v. State, 5 Iowa, 389, 68 Am. Dec. 708, 1857. Question of chastity of prosecu- trix at and prior to the time of her alleged taking away by the accused is not involved, and should not be considered by the jury in determin- ing the guilt of the accused; but 11 her general reputation for chastity and virtue in the community in which she lived is bad, that fact may be considered by the jury in determining the credit to be at- tached to her testimony as a wit- ness. State v. Bopbst, 181 Mo. 328, 32 S. W. 1149, 10 Am. Crim. Rep. 3, 1895. See People v. Demousset, 71 Cal. 611, 12 Pac. 788, 7 Am. Crim. Rep. 1, 1887; State v. John- son, 115 Mo. 480, 22 S. W. 4638, 9 Am. Crim. Rep. 7, 1893. “Statute intended to protect the chaste, as well as to reclaim the un- chaste.” People v. Demousset, 71 Cal. 611, 12 Pac. 788, 7 Am. Crim. Rep. 1, 1887. § 780] ABDUCTION AND KIDNAPPING. 999 tation for prior chastity may be shown for the purpose of im- peaching her credibility as a witness, and also for the purpose of establishing the probability of her consent to the act, where she is of an age to give that consent,** and the defendant is entitled to prove specific acts of adultery by prosecutrix with other men.” Uncorroborated testimohy of the woman may be sufficient to justify a conviction of the accused charged with her abduc- tion.™ § 780. Defenses. The fact that the female involved, who was under the statutory age, consented, does not constitute a defense ;* and, in the absence of a statute providing to the con- trary,” the consent of the parent or guardian will not constitute defense.* In those cases where the female involved is of age to give consent, such consent will be no defense unless given freely and voluntarily,* and is not procured by fraud® and the like. The fact that the husband of the woman consented to the act will constitute no defense.® Prosecutrix church member and re- ceived into society before associa- tion with accused. is admissible in evidence as tending to fortify pre- sumption her previous life was chaste. Bradshaw v. People, 153 IIl. 156, 38 N. E. 652, 9 Am. Crim. Rep. 23, 1894. Specific acts of unchastity, evi- dence of being offered and rejected by the court, not reversible error. State v. Bobbst, 131 Mo. 328, 32 S. W. 1149, 10 Am. Crim. Rep. 3, 1895. To establish unchastity it is not necessary to prove prosecutrix has been guilty of previous sexual inter- course; it is sufficient to show that she has been guilty of obscenity of language, indecency of conduct, un- due familiarity with men, and the like. Andre v. State, 5 Iowa, 389, 68 Am. Dec. 708, 1857; State v. Car- ron, 18 Iowa, 375, 81 Am. Dee. 401, 1865. 21 Stewart v. Com. 141 Ky. 522, 133 S. W. 202, 1911. Evidence of immorality between the female and defendant, with her consent, will not sustain a convic- tion upon an indictment charging de- taining of the woman against her will, ete. Patton v. Com. 140 Ky. 513, 131 S. W. 275, 1910. 22 Stewart v. Com. 141 Ky. 522, 133 8. W. 202, 1911; People v. Clark, 33 Mich. 118, 1 Am. Crim. Rep. 660, 1876. 23 See State v. Stone, 106 Mo. 1, 16 S. W. 890, 1891. 1 Gravett v. State, 74 Ga. 191, 1884; State v. Round, 82 Mo. 679, 1884; State v. Gibson, 111 Mo. 92, 19 S. W. 980, 1892; State v. John- son, 115 Mo. 480, 22 S. W. 463, 9 Am. Crim. Rep. 7, 1893; State v. Stone, 106 Mo. 1, 16 8. W. 890, 1891; State v. Bobbst, 131 Mo. 328, 32 S. W. 1149, 10 Am. Crim. Rep. 3, 1895. 2 Burden of proof in defense that taking of child was with father’s consent is upon the accused, to es- tablish that fact. State v. Burnett, 142 N. C. 577, 55 S. E. 72, 1906. 8Gravett v. State, 74 Ga. 191, 1884. 4Supra, §§ 187, 191. Hadden v. People, 25 N. Y. 372, 1862; Daven- port v. Com. 1 Leigh, 588, 1829. 5 See supra, § 776, footnote, 5. 6No defense to a prosecution for detaining woman against her will, ete., that her husband told him to go CRIMINAL LAW. [§ 780 1000 Unchastity of female cannot be set up as a defense in a prosecution for abduction with intent, etc.,” in the absence of a statute specifically requiring that the female involved shall have been previously of chaste character; and the fact that a girl under age taken for concubinage, etc., was previously of unchaste character, and had had previous intercourse with ac- cused, will constitute no defense.® ° Ignorance of girl’s age, where she is under the age of con- sent, is no defense in a prosecution for abduction with inten- tion, ete.,° for the reason that the belief of the accused as to the age of the victim is not an element in the commission of the crime. He assumes all the risk incident to a want of sufficient age, no matter what may have been his honest belief regarding the same,” or what statements or representations the female may have made with regard to her age." up to the house for the purpose, etc. and that it would be all right with his wife. Young v. Com. — Ky. —, 124 S. KE. 312, 1900. 7 [Cal.] People v. Cook, 61 Cal. 478, 1882; People v. Demousset, 71 Cal. 611, 12 Pac. 788, 7 Am. Crim. Rep. 1, 1887. [Mo.] State v. Gibson, 108 Mo. 575, 18 S. W. 1109, 1891; State v. Gibson, 111 Mo. 92, 19 S. W. 980, 1892; State v. Johnson, 115 Mo. 480, 22 8S. W. 463, 9 Am. Crim. Rep. 7, 1893. Compare: [Md.] Brown v. State, 72 Md. 468, 20 Atl. 186, 1890. [Tenn.] Jenkins v. State, 15 Lea, 674, 1885; Scruggs v. State, 90 Tenn. 81, 15 S. W. 1074, 1891. 8 State v. Baldwin, 214 Mo. 290, 113 S. W. 1123, 1908. See supra, § 695. 9 [Eng.] Reg. v. Prince, L. R. 2 C. C. 154, 44 L. J. Mag. Cas. N. 8. 122, 32 L. T. N. S. 700, 24 Week. Rep. 76, 13 Cox, C. C. 188, 1 Am. Crim. Rep. 1. [Cal.] People v. Fow- ler, 88 Cal. 136, 25 Pac. 1110, 1891; People v. Dolan, 96 Cal. 315, 31 Pac. 107, 1892. [Mo.] State v. Johnson, 115 Mo. 480, 22 S. W. 463, 9 Am. Crim. Rep. 7, 1893. Compare: Mason v. State, 29 Tex. App. 24, 14 8. W. 71, 1890. See also supra, § 88. Charge as to mistake as to age.— It was held erorr for the court not to charge that, if the defendant, at the time he took the girl away from her home, was mistaken as to her age, believing her to be over seven- teen years of age, and if such mis- take did not arise from a want of proper care on his part, and if the girl went with him voluntarily, he would not be guilty of either of the offenses charged in the indictment, viz., kidnapping and abduction of a female for the purpose of prostitu- tion. Mason v. State, 29 Tex. App. 24, 14 S. W. 71, 1890. 10See supra, § 713. 11 See supra, § 714. meribtall Dats Froese aie whe oaths Pe ek ar earl Pit oh) aeons nied ple tatacah Asus iat eae rey atte ec Meena eth a cares 7 Sear emcn lira Te maaan aaly Sets peer eet a : i ie hi i pean snes re Fe utah a 4 pias pinta oe et: eh Pleetecrnergiet os 3 Sa ra q on ee policies Creat as (Orpen its aaa eeeenaate: iperglatletyr Pia Fi ae ko ee ae see ey diy “ns 4 Ren ie one ye one ati, in lt Pl eal Cee i ices sadeatiheet pret iaplabat hi Reiseatee ls Nene Pres pie Hi i Car) ee aH no een cee ak Deen ease aaa 3 uta e eae ae aie eee Pi ee a npn eee Bar ena aes Nay h loeb, ‘ tH nat ere ees a y een ir SR 7 5 DOL dae is oy ie i o Pron errriiin str Pree wit Sarena sh een eed ary Stra ed af pani Aen st a irre sane “y ies a ra en! eer oe Ee aad alee cit ea ata ons Mea riih ‘ bao ; Dh fe aH ee . sti erg eam ee eens ei os sone hi arn rier a i rt aaa Sey ancy rite knee ay ore Paetbeltan il ree ieee Mase OA ebay ebeniny Ln ota nt Sea rears piste aah Scere eee “2 saat a ea sae eeaietl ie Ruan dt Rene oe i fe ey ey ee Dal eal ah Ss inantriran ee ai ws : ee irhau sin Eras es iis Lae a ia pat a ta fight 2D sn eS : peep Se tou ie mts Raitt aha eet pete Tete es oe tet a merits ahi Seen Baars lar aah Me teat sabe pe Dae Ptertse: . a i sae fs Pe ea) ned be Abe opal is “vats ei is le He peat pa ae Pe esteemed gt ira sie ns mice oe eat on 3 i‘ say Pair ia i nee sy 5 Pag hea a een ce pant be Soe eee oh emt ceo ee elcome Fates ee